NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr., Judge.
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.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
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.
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 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 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.
The State charged Gentry with one count of first degree sexual assault, aggravated ...