                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                         STATE V. GENTRY


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                              V.
                                MATTHEW M. GENTRY, APPELLANT.


                             Filed October 22, 2013.     No. A-12-949.


       Appeal from the District Court for Lancaster County: PAUL D. MERRITT, JR., Judge.
Affirmed.
       Dennis R. Keefe, Lancaster County Public Defender, and Elizabeth D. Elliott for
appellant.
       Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.


       MOORE, PIRTLE, and BISHOP, Judges.
       BISHOP, Judge.
        Matthew M. Gentry appeals from the decision of the district court for Lancaster County
that, after a jury trial, convicted him of one count of first degree sexual assault, aggravated
offense. We affirm.
                                   FACTUAL BACKGROUND
        J.L. testified that on the evening of January 13, 2012, she was celebrating her birthday
with a friend. At around 8 p.m., J.L. and her friend went to a bar and J.L. had a martini. They
then walked to a second bar, arriving around 9 p.m. Over the next few hours, J.L. consumed five
or six drinks. At 11:45 p.m., while still at the second bar, J.L. was joined by Christine Davidson
and Davidson’s cousin, S.N. Shortly after midnight, J.L., Davidson, and S.N. went to a third bar,
where J.L. consumed five or six shots of alcohol. J.L. testified that when they left the third bar,
her state of intoxication was “at a 10” on a scale of 1 to 10. After leaving the third bar, J.L. asked
Davidson and S.N. to take her home. Davidson wanted to “keep partying” and offered to let J.L.
sleep at her apartment. Before they went to Davidson’s apartment, the three women stopped at a


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fast-food restaurant to order food. A receipt showed the food was ordered at 1:21 a.m. on
January 14.
         When J.L., Davidson, and S.N. arrived at Davidson’s apartment, Davidson’s boyfriend
and Gentry were already there. J.L. testified that she had never met Gentry before. While
Davidson, her boyfriend, S.N., and Gentry engaged in conversation, J.L. sat on the couch and ate
her food. When J.L. finished eating, Davidson showed her to the spare bedroom, which
contained a sectional couch. J.L., who was wearing a dress, a sweater, a body-shaping garment,
tights, and a pair of boots, removed only her boots before lying down to go to sleep. Sometime
around 4 or 5 a.m., J.L. woke to find a male, later identified as Gentry, on top of her. J.L.
testified that she was lying on her stomach. When she woke, her tights and body-shaping
garment were “pulled down below [her] knees and [Gentry] was on top of . . . behind [her]”
having sex with her. She specifically stated that “[h]is penis was in my vagina.” J.L. testified that
she was still drunk and that when she realized what was happening, she started to get up and
said, “‘I don’t even know who you are.’” She also thinks she said, “‘Get off of me. . . .’”
According to J.L., Gentry removed his penis from her vagina and then ejaculated on her inner
thigh.
         J.L. sat up as Gentry was pulling up his pants. When J.L. again stated, “‘I don’t even
know who you are,’” Gentry said he was the best friend of Davidson’s boyfriend and then
walked into the bathroom across the hall. When he returned, Gentry handed J.L. a towel and
suggested that she wipe herself off. He also pointed to a spot on the couch and said, “‘There’s
blood there.’” Gentry then cleaned the spot off the couch.
         Davidson awoke when she heard voices outside of her bedroom. When Davidson entered
the spare bedroom, Gentry went to the living room. When Davidson asked J.L. what happened,
J.L. stated, “‘Someone that I don’t even know just had sex with me.’” Davidson offered to call
the police, but J.L. declined because Gentry was still in the apartment. Gentry left shortly
thereafter. Around 8 a.m. on January 14, 2012, J.L. woke S.N. and asked for a ride home.
         Later that morning, J.L. called the police to report the incident with Gentry. The officer
gave J.L. a ride to a hospital, where she was examined by a certified sexual assault nurse
examiner. During the examination, the nurse took swabs of J.L.’s groin, inner thigh, and vaginal
and anal cavities and sent the swabs to a laboratory for analysis. The vaginal swab tested positive
for semen, and Gentry could not be excluded as the source. The nurse also examined J.L.’s
genitalia and observed a “fresh” quarter-inch tear in J.L.’s posterior fourchette, i.e., the lower rim
of the entry of the vagina. The nurse testified that the tear could have been caused by consensual
sex.
         While J.L. was at the hospital, several members of the Lincoln Police Department went to
Davidson’s apartment to interview witnesses and collect evidence. An officer also went to J.L’s
apartment to collect the clothing she was wearing at the time of the assault. A stain on the
sweater she had been wearing tested positive for semen, and Gentry could not be excluded as the
source.
         On January 29, 2012, Gentry agreed to be interviewed by an investigator. According to
Gentry, his encounter with J.L. on January 14 was consensual. Gentry testified that he first met
J.L. on January 14. According to Gentry, he engaged J.L. in a brief conversation and she did not



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slur her words. He testified that J.L. was not drunk. J.L. went to the spare bedroom to lie down.
Gentry testified that at around 3:30 a.m., he went to see if J.L. was “okay,” meaning that he went
to see if she was interested in having sex with him. Gentry thought she might be interested in
having sex because earlier in the living room she had been smiling and giggling and being
“flirtatious, like non-verbally.” Gentry said that he massaged J.L.’s back and that she made
“erotic sounds” and tried to “nudge up closer” to him. Gentry said that he tried to put his hands
under her shirt and that J.L. moved so that her shirt could go “up a little bit farther.” Gentry
testified that he tried to remove J.L.’s tights and body-shaping garment, but had difficulty, so J.L.
stood up and removed them herself. Gentry testified that he removed his pants, put on a condom,
and tried to have sex with J.L. Gentry testified that he had difficulty getting his penis into J.L.’s
vagina, so J.L. used her hands to guide Gentry’s penis into her vagina. Gentry testified that
before orgasm, he removed his condom and ejaculated on J.L.’s stomach. He testified that he
went across the hall to a bathroom, flushed the condom, and took a towel back to J.L. so that she
could clean up. Gentry noticed a spot of blood on the couch, which he tried to clean up. Gentry
said that J.L. helped him clean the couch. Gentry testified that he then sat in the room with J.L.
and that they talked. Gentry testified that Davidson then came in the room and wanted to talk to
J.L. Later, Davidson came and told Gentry that he needed to leave. Gentry called a cab and left.
Gentry testified that J.L. was not drunk, that he did not force J.L. to have sex, and that J.L. never
said “no.”
         Davidson, her boyfriend, and S.N. testified as to J.L.’s condition at Davidson’s apartment
on January 14, 2012. Davidson’s boyfriend testified that J.L. was drunk. S.N. testified that J.L.
was “really intoxicated.” Davidson testified that J.L. was in a “pretty high” state of intoxication.
Both S.N. and Davidson testified that when they got to Davidson’s apartment, J.L. did not talk to
anyone. They said J.L. just sat on the couch and ate her food.
                                 PROCEDURAL BACKGROUND
        The State charged Gentry with one count of first degree sexual assault, aggravated
offense, a Class II felony.
        Before trial, the State filed a notice of intent to offer evidence, pursuant to Neb. Rev. Stat.
§ 27-414 (Cum. Supp. 2012), of similar offenses committed by Gentry. At a hearing to consider
the § 27-414 issues, testimony was received from S.N., who had contact with Gentry 2 months
prior to the assault against J.L.
        S.N. said that on one evening in November 2011, she was drinking at Davidson’s
apartment with Davidson, her boyfriend, and Gentry. S.N. had never met Gentry before that
evening. S.N. testified that she was intoxicated and “passed out” on the couch in Davidson’s
spare bedroom. S.N. was wearing jeans and a T-shirt. S.N. testified that when she woke up, her
shirt was off, her pants were unbuttoned, and Gentry was grabbing her breasts and “trying to
have sex” with her. S.N. testified that when she told Gentry to stop, he stopped. S.N. never
reported the incident. S.N. testified that she encountered Gentry again on New Year’s Eve and
that on that evening, they had consensual sex.
        The trial court found clear and convincing evidence that Gentry had subjected S.N. to
nonconsensual sexual contact in November 2011. The court found that although S.N. was not



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subjected to first degree sexual assault, there were “significant” similarities between the act
against S.N. and the act with which Gentry was charged. The court found:
        Without limitation, these include the following: The sexual assaults occurred on the
        couch in . . . Davidson’s spare bedroom; J.L. and [S.N.] were each intoxicated and passed
        out on the couch; both J.L. and [S.N.] woke up to discover that their clothing had been
        removed and/or altered; and, when they woke up, each of them testified that [Gentry] was
        present, sexually assaulting them.
The court also found that the probative value of the admission of the evidence relating to the
sexual assault of S.N. in November 2011 outweighed any prejudicial effect that may be caused
by the admission of the evidence. The court found that evidence relating to the November 2011
sexual assault of S.N. was admissible at trial.
        After a trial, the jury found Gentry guilty of first degree sexual assault, aggravated
offense. The trial court accepted the jury’s verdict. Gentry was later sentenced to 15 to 20 years’
imprisonment, with 254 days’ credit for time served. Gentry has timely appealed his conviction
and sentence to this court.
                                  ASSIGNMENTS OF ERROR
         Gentry assigns that (1) the district court improperly admitted evidence of a “similar
crime” under § 27-414, (2) there was insufficient evidence to support his conviction, and (3) the
district court imposed an excessive sentence.
                                   STANDARD OF REVIEW
         In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. State v. Kibbee, 284 Neb. 72, 815 N.W.2d
872 (2012). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the
discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse
of discretion. Id.
         When reviewing a criminal conviction for sufficiency of the evidence to sustain a
conviction, the relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State v. McGee, 282 Neb. 387, 803
N.W.2d 497 (2011). And whether the evidence is direct, circumstantial, or a combination
thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of
fact. Id.
         A sentence imposed within statutory limits will not be disturbed on appeal absent an
abuse of discretion by the trial court. State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).




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                                           ANALYSIS
Evidence of Similar Crime.
        Gentry asserts that the district court improperly admitted evidence of a “similar crime”
under § 27-414 because the crime was not similar enough, the evidence was more prejudicial
than probative, and the evidence could have confused the jury about which case was being tried.
        In relevant part, § 27-414 provides:
                (1) In a criminal case in which the accused is accused of an offense of sexual
        assault, evidence of the accused’s commission of another offense or offenses of sexual
        assault is admissible if there is clear and convincing evidence otherwise admissible under
        the Nebraska Evidence Rules that the accused committed the other offense or offenses. If
        admissible, such evidence may be considered for its bearing on any matter to which it is
        relevant.
                ....
                (3) Before admitting evidence of the accused’s commission of another offense or
        offenses of sexual assault under this section, the court shall conduct a hearing outside the
        presence of any jury. At the hearing, the rules of evidence shall apply and the court shall
        apply a section 27-403 balancing and admit the evidence unless the risk of prejudice
        substantially outweighs the probative value of the evidence. In assessing the balancing,
        the court may consider any relevant factor such as (a) the probability that the other
        offense occurred, (b) the proximity in time and intervening circumstances of the other
        offenses, and (c) the similarity of the other acts to the crime charged.
And Neb. Rev. Stat. § 27-403 (Reissue 2008) states: “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.”
        The trial court followed the procedure of the statute and conducted a hearing outside the
presence of the jury. At the hearing, S.N. testified that in November 2011--2 months prior to the
sexual assault of J.L.--Gentry subjected S.N. to nonconsensual sexual contact. The court found
by clear and convincing evidence that Gentry had subjected S.N. to nonconsensual sexual
contact. The court found that although S.N. was not subjected to first degree sexual assault, there
were “significant” similarities between the two acts. The court found:
        Without limitation, these include the following: The sexual assaults occurred on the
        couch in . . . Davidson’s spare bedroom; J.L. and [S.N.] were each intoxicated and passed
        out on the couch; both J.L. and [S.N.] woke up to discover that their clothing had been
        removed and/or altered; and, when they woke up, each of them testified that [Gentry] was
        present, sexually assaulting them.
The court also found that the probative value of the admission of the evidence relating to the
sexual assault of S.N. in November 2011 outweighed any prejudicial effect that may be caused
by the admission of the evidence.
        The trial court properly considered all factors in determining whether evidence of a prior
sexual assault may be admitted. The court considered the probability that the other offense
occurred, the proximity in time and intervening circumstances of the other offenses, and the


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similarity of the other acts to the crime charged. Accordingly, the trial court did not abuse its
discretion in admitting evidence of Gentry’s commission of a “similar crime” against S.N. See
State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
Sufficiency of Evidence.
         Gentry asserts there was insufficient evidence to support his conviction. When reviewing
a criminal conviction for sufficiency of the evidence to sustain a conviction, the relevant
question for an appellate court is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011).
         The evidence supports a conviction for first degree sexual assault under Neb. Rev. Stat.
§ 28-319(1) (Reissue 2008). Under § 28-319(1),
         [a]ny person who subjects another person to sexual penetration (a) without the consent of
         the victim, (b) who knew or should have known that the victim was mentally or
         physically incapable of resisting or appraising the nature of his or her conduct . . . is
         guilty of sexual assault in the first degree.
As defined by Neb. Rev. Stat. § 28-318(8) (Cum. Supp. 2012), the term “without consent”
means:
                  (a)(i) The victim was compelled to submit due to the use of force or threat of
         force or coercion, or (ii) the victim expressed a lack of consent through words, or (iii) the
         victim expressed a lack of consent through conduct, or (iv) the consent, if any was
         actually given, was the result of the actor’s deception as to the identity of the actor or the
         nature or purpose of the act on the part of the actor;
                  (b) The victim need only resist, either verbally or physically, so as to make the
         victim’s refusal to consent genuine and real and so as to reasonably make known to the
         actor the victim’s refusal to consent; and
                  (c) A victim need not resist verbally or physically where it would be useless or
         futile to do so[.]
Gentry does not dispute that he subjected J.L. to sexual penetration on January 14, 2012, but he
claims he did so with J.L.’s consent.
         As stated previously, J.L. testified she had between 11 and 13 alcoholic drinks during the
evening hours of January 13, 2012, and into the early morning hours of January 14. She testified
that when she left the third bar, her state of intoxication was “at a 10” on a scale of 1 to 10. After
returning to Davidson’s apartment, J.L. fell asleep in a spare bedroom. She testified that
sometime around 4 or 5 a.m., she woke to find Gentry, on top of her. Her tights and
body-shaping garment were “pulled down below [her] knees and [Gentry] was on top of . . .
behind [her]” having sex with her. She specifically stated that “[h]is penis was in my vagina.”
J.L. testified that she was still drunk and that when she realized what was happening, she started
to get up and said, “‘I don’t even know who you are.’” She also thinks she said, “‘Get off of
me. . . .’”
         Contrary to J.L.’s testimony, Gentry testified that J.L. was not drunk. But J.L.’s
testimony was supported by Davidson, her boyfriend, and S.N., all of whom testified that J.L.
was “drunk,” in a “pretty high” state of intoxication, or “really intoxicated.” Davidson and S.N.


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also contradicted Gentry’s testimony that he engaged in a conversation with J.L. before she went
to sleep in the spare bedroom.
        Whether Gentry subjected J.L. to sexual penetration (a) without her consent, or (b) when
he “knew or should have known that [J.L.] was mentally or physically incapable of resisting or
appraising the nature of her conduct” is a question of fact to be determined by the jury. See
§ 28-319(1). Viewing the evidence in the light most favorable to the prosecution, the jury could
have found the essential elements of the crime beyond a reasonable doubt. See State v. McGee,
282 Neb. 387, 803 N.W.2d 497 (2011). Accordingly, there was sufficient evidence to support
Gentry’s conviction for first degree sexual assault.
        We take a moment to note the sexual assault was charged as an aggravated offense, the
penalty for which includes lifetime community supervision by the Office of Parole
Administration, pursuant to Neb. Rev. Stat. § 83-174.03(1)(c) (Cum. Supp. 2012). For purposes
of the Sex Offender Registration Act, the term “aggravated offense” includes “any registrable
offense under section 29-4003 which involves the penetration of . . . (a) a victim age thirteen
years or older without the consent of the victim” or “(c) a victim who the sex offender knew or
should have known was mentally or physically incapable of resisting or appraising the nature of
his or her conduct.” Neb. Rev. Stat. § 29-4001.01(1) (Cum. Supp. 2012). Sexual assault pursuant
to § 28-319 is a registrable offense under Neb. Rev. Stat. § 29-4003 (Cum. Supp. 2012). As
stated previously, the evidence adduced at trial showed that Gentry subjected J.L. to penetration
without her consent or when he knew or should have known that J.L. was mentally or physically
incapable of resisting or appraising the nature of her conduct. Thus, the criteria for an
“aggravated offense” were met in the instant case.
Excessive Sentence.
        Gentry asserts that the district court imposed an excessive sentence. Factors a judge
should consider in imposing a sentence include the defendant’s age, mentality, education,
experience, and social and cultural background, as well as his or her past criminal record or
law-abiding conduct, motivation for the offense, nature of the offense, and the amount of
violence involved in the commission of the crime. State v. Williams, 282 Neb. 182, 802 N.W.2d
421 (2011).
        Gentry was 29 years old at the time of the crime and 30 at the time of sentencing. He had
obtained his diploma through the GED program and was employed at a manufacturing plant.
Gentry’s adult criminal history dates back to 1999. His convictions include attempted second
degree forgery, making a false statement to a police officer (three times), possession of
marijuana less than 1 ounce (two times), driving under suspension (three times), conspiracy to
distribute cocaine, and aiding and abetting. Gentry’s convictions for conspiracy to distribute
cocaine and aiding and abetting resulted in a federal prison sentence followed by a term of
supervised release. Gentry was still on supervised release at the time he assaulted J.L. With
regard to the current offense, Gentry sexually assaulted J.L. while she was unconscious due to
the effects of alcohol.
        A sentence imposed within statutory limits will not be disturbed on appeal absent an
abuse of discretion by the trial court. State v. Williams, supra. And it is the minimum portion of
an indeterminate sentence which measures its severity. State v. Nevels, 235 Neb. 39, 453 N.W.2d



                                              -7-
579 (1990). Gentry was convicted of one count of first degree sexual assault under § 28-319(1), a
Class II felony. The statutory sentencing range for a Class II felony is 1 to 50 years’
imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2012). Gentry was sentenced to 15 to 20
years’ imprisonment and was given 254 days’ credit for time served. His sentence is in the low to
middle range of the permissible sentencing range. Having considered the relevant factors in this
case, we find that the sentence is not excessive or an abuse of discretion, and we affirm such
sentence.
                                        CONCLUSION
       For the reasons stated above, we affirm Gentry’s conviction and sentence.
                                                                                      AFFIRMED.




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