State v. Smith ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/29/2019 01:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. SMITH
Cite as 302 Neb. 154
State of Nebraska, appellee, v.
Jeffery S. Smith, A ppellant.
___ N.W.2d ___
Filed February 1, 2019. No. S-18-178.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
2. Constitutional Law: Witnesses: Appeal and Error. An appellate
court reviews de novo a trial court’s determination of the protections
afforded by the Confrontation Clause of the Sixth Amendment to the
U.S. Constitution and article I, § 11, of the Nebraska Constitution and
reviews the underlying factual determinations for clear error.
3. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal
is a question of law. In reviewing claims of ineffective assistance of
counsel on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to conclu-
sively determine whether counsel did or did not provide effective assist­
ance and whether the defendant was or was not prejudiced by counsel’s
alleged deficient performance.
4. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, 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. 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 ele-
ments of the crime beyond a reasonable doubt.
5. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
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STATE v. SMITH
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6. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
7. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
8. Constitutional Law: Criminal Law: Trial: Witnesses. While the
Confrontation Clause guarantees a criminal defendant a face-to-face
meeting with witnesses appearing before the trier of fact, that guarantee
is not an absolute right. But while the face-to-face requirement is not
absolute, it cannot be disposed of easily.
9. Constitutional Law: Trial: Witnesses: Public Policy. A defendant’s
right to confront accusatory witnesses may be satisfied absent a physi-
cal, face-to-face confrontation at trial only where denial of such con-
frontation is necessary to further an important public policy and only
where the reliability of the testimony is otherwise assured.
10. Constitutional Law: Trial: Witnesses: Appeal and Error. An uncon-
stitutional denial of face-to-face confrontation, like other types of viola-
tions of the Confrontation Clause, is subject to harmless error review.
11. Constitutional Law: Trial: Proof: Appeal and Error. Where the trial
error is of a constitutional dimension, the burden must be on the benefi-
ciary of the error to prove beyond a reasonable doubt that the error did
not contribute to the verdict obtained.
12. Verdicts: Juries: Appeal and Error. Harmless error review ultimately
looks to the basis on which the trier of fact actually rested its verdict;
the inquiry is not whether in a trial that occurred without the error a
guilty verdict would surely have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely unattrib-
utable to the error.
13. Effectiveness of Counsel: Postconviction: Appeal and Error. When a
defendant’s trial counsel is different from his or her counsel on direct
appeal, the defendant must raise on direct appeal any issue of trial
counsel’s ineffective performance which is known to the defendant or
is apparent from the record, otherwise, the issue will be procedurally
barred in a subsequent postconviction proceeding.
14. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough par-
ticularity for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
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302 Nebraska R eports
STATE v. SMITH
Cite as 302 Neb. 154
15. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
16. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
17. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
18. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
Appeal from the District Court for Harlan County: Terri S.
H arder, Judge. Affirmed.
D. Brandon Brinegar, of Ross, Schroeder & George, L.L.C.,
for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Jeffery S. Smith appeals his convictions and sentences for
first degree sexual assault of a child and felony child abuse
following a bench trial in the district court for Harlan County.
Smith claims that the court violated his constitutional right
of confrontation when it allowed the alleged victim to tes-
tify outside Smith’s presence. Smith also makes claims of
ineffective assistance of trial counsel, insufficiency of the
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STATE v. SMITH
Cite as 302 Neb. 154
evidence, and excessive sentences. We affirm Smith’s convic-
tions and sentences.
STATEMENT OF FACTS
Smith lived in Alma, Nebraska, with his wife, Rochelle
Smith, their two children, and Rochelle’s two children from
a prior relationship. The State originally charged Smith with
four counts of first degree sexual assault of a child in viola-
tion of Neb. Rev. Stat. § 28-319.01(1)(b) (Reissue 2016) and
four counts of felony child abuse in violation of Neb. Rev.
Stat. § 28-707(1)(a) or (e) and (4) (Reissue 2016). The State
amended the information to charge one count of each offense.
The alleged victim with respect to each charge was R.F., who
is Rochelle’s daughter from a prior relationship and who was
born in February 2001. Smith was born in January 1978. The
offenses were charged as having been committed between
August 1 and September 30, 2016, when R.F. was 15 years old.
Smith’s trial on the charges was held in October 2017, when
R.F. was 16 years old.
In October 2016, police investigated suspected sexual abuse
of R.F. by Ronald Lauhead, an adult friend of Smith and
Rochelle. The investigation began after Smith reported to
police that one of the other children had told him that she had
seen Lauhead naked with R.F. The investigation led police to
suspect that Smith and Rochelle had also been involved in the
abuse of R.F., and eventually Smith, Rochelle, and Lauhead
were each charged with offenses related to such abuse.
Smith waived his right to a jury trial, and the district
court scheduled a bench trial for October 24, 2017. The State
called Rochelle as its first witness. Rochelle’s testimony was
as follows.
At the time of the trial, Rochelle was divorced from Smith.
She had married Smith in 2007, and they had been married
for over 10 years prior to the divorce. Rochelle has four chil-
dren—two older children from a prior relationship and two
younger children with Smith. R.F. is the oldest of Rochelle’s
children. In 2013, Rochelle and Smith and the four children
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moved into a house in Alma. Soon thereafter, Rochelle intro-
duced Smith to Lauhead, whom she had known from high
school. Smith and Lauhead became friends, and Lauhead
frequently spent time at Smith and Rochelle’s house. One
night in March 2016, when the children were asleep in their
beds, Smith invited Lauhead to engage in a sexual encounter
with Smith and Rochelle. Rochelle testified that she initially
objected, but she eventually gave in and the three engaged in
sexual activities in Smith and Rochelle’s bedroom. The next
day, Rochelle told Smith that she was not comfortable with
what they had done with Lauhead. However, Smith convinced
Rochelle to engage in sexual encounters with Lauhead “[t]wo
or three more times” in April.
The last time that Rochelle recalled engaging in group sexual
activity with Smith and Lauhead was at the end of September
2016. Rochelle finished working at 11 p.m., and when she
returned home, Smith and Lauhead were watching television
in the living room. The children were asleep in their rooms.
Eventually, Smith “suggested another threesome” and Rochelle
“went along with” the suggestion. The three went to Smith and
Rochelle’s bedroom and removed their clothing. Smith and
Rochelle lay on their bed touching one another, while Lauhead
performed oral sex on Rochelle.
At some point, Smith got out of bed, put on his boxer shorts
and left the bedroom. Shortly thereafter, Smith returned to
the bedroom with R.F., who was wearing sweatpants and a
T-shirt. Smith said that R.F. “was going to join in on the activ-
ity.” Rochelle told him “no, it wasn’t going to happen,” but
Smith threatened that “if it didn’t happen he was going to take
all the kids and leave [the] state and [Rochelle would] never
see them again.” Smith then proceeded to undress R.F. and
touch her breasts with his hands as they were standing beside
the bed. After Smith had taken all of R.F.’s clothes off, he
had her lie down on the bed and then he lay on the bed with
R.F. and Rochelle. Lauhead, who had been performing oral
sex on Rochelle, moved to the other side of the bed beside
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STATE v. SMITH
Cite as 302 Neb. 154
R.F. Lauhead and Smith were both touching R.F.’s breasts
and vagina.
In response to the State’s question regarding how Smith
was touching R.F.’s vagina, Rochelle testified, “Just putting
his hand on it and rubbing it.” The State further inquired
regarding Smith’s touching R.F.’s vagina by asking, “[D]id
you see him put his finger inside of her vagina?” Rochelle
responded, “No.” The State asked, “What did you see him
do?” Rochelle responded, “He was just fondling the top of it.”
When the State asked Rochelle to describe what she meant by
“fondling,” Rochelle stated, “Rubbing it.” The State returned
to the topic in its redirect examination of Rochelle. The State
asked Rochelle to describe Smith’s touching of R.F.’s vagina
in “better detail.” Rochelle replied that “[h]e was touching
the outward part of her vagina.” The State asked, “Was that
between the skin folds known as the labia?” Rochelle replied,
“Yes.” Upon further questioning, Rochelle testified that Smith
had touched R.F. “between the lips of her vagina” for “[m]aybe
three to five seconds” and that she had seen him do so “[j]ust
once.” The State also asked, “But you did not see him actually
insert his finger into her vaginal opening?” Rochelle replied,
“No, ma’am.”
Rochelle testified on direct examination that during the
encounter among the four, Lauhead had vaginal intercourse
with R.F., while Smith had vaginal intercourse with Rochelle.
She also testified that Smith did not attempt to stop Lauhead
from having intercourse with R.F. After the encounter was fin-
ished, the four all got dressed, and Lauhead went home while
R.F. returned to her bed. Thereafter, Rochelle never talked to
R.F. about what had happened and R.F. did not try to talk to
Rochelle about it.
On cross-examination, Rochelle testified that she had been
arrested for child abuse with respect to the abuse of R.F. and
that, as a result, her testimony in this case was being given pur-
suant to a plea agreement related to those charges. According
to Rochelle, pursuant to the plea agreement, some charges
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STATE v. SMITH
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against her were being dismissed and the State agreed not to
attempt to terminate her parental rights.
Rochelle testified that in her initial statement to police
regarding the abuse of R.F., she had indicated that she had
refused to participate in the sexual activity involving Smith,
Lauhead, and R.F. She also testified that in the initial state-
ment, she had said that Smith had touched R.F.’s breasts but
she had not said that Smith touched R.F.’s vagina. On cross-
examination, Rochelle testified that an examination in October
2016 revealed that R.F. was pregnant and that Rochelle subse-
quently learned that neither Smith nor Lauhead was the father
of the baby.
After Rochelle’s testimony was completed, the State called
R.F. as a witness. Prior to trial, the State had filed a motion to
allow R.F. to testify in camera and outside Smith’s presence.
The State asserted in the motion that the request was being
made pursuant to Neb. Rev. Stat. § 29-1926(1)(d) (Reissue
2016), which generally relates to accommodations for child
victims and child witnesses. In this case, the State sought in
camera testimony by R.F. because of its concern that R.F. “will
be harmed emotionally and psychologically if forced to testify
in the presence of . . . Smith.” The State further asserted in the
motion that R.F., who was 16 years old at the time, “has been
diagnosed with Fragile X and functions at a much younger
age than her biological age would suggest.” The State also
requested that R.F.’s guardian ad litem be allowed to sit beside
her when she testified.
At a hearing prior to trial, the court stated that its under-
standing was that Smith’s counsel had “indicated that he does
not object to the State’s motion to allow [R.F.] to testify in
camera and with a [guardian ad litem] present.” Smith’s coun-
sel replied that he was not willing to stipulate to the request.
The court therefore took the motion up as a contested matter
and allowed the State to argue. In response to the court’s ques-
tions, the State said that R.F. was 16 years old and that she had
“been diagnosed with among other things Fragile X, [and] was
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in special education.” The State asserted that R.F.’s “biological
age [was] much different than her functioning age.” After the
State presented its argument, Smith stated, “I would object,
Judge. I guess [on] the primary basis of confrontation . . . .”
Smith requested that the court reserve ruling on the motion
until the court had had a chance to voir dire R.F. The court
stated that it would delay ruling until voir dire could be made
of R.F. at the time of trial.
After the State called R.F. as a witness, the court asked
whether the State was withdrawing its motion. The State said
that it was not and that it renewed its motion to have R.F.
testify in camera. The court stated its understanding that the
plan had been to wait until the trial to rule on the motion and
decided to move from the courtroom to the jury room in order
to hear the motion.
The court began the hearing on the motion by stating that
the proceeding was taking place “in the jury room outside the
presence of . . . Smith” and that R.F., R.F’s guardian ad litem,
the State’s counsel, and Smith’s counsel were present in the
jury room. The court explained the proceeding to R.F. and
had R.F. take an oath. The State began by asking R.F. general
questions regarding her age, her school, and her baby. R.F.
testified that she was 16 years old, that she was in 11th grade
in high school, that she had a baby, and that she generally
took care of the baby but was helped by her foster mother.
R.F. also testified that she did not know if she had ever been
diagnosed with any illness. The State then asked R.F. whether
she remembered that she had come to tell the judge what had
happened to her. R.F. replied, “Yes,” and the State asked “do
you want to do that in front of [Smith]?” R.F. replied, “Um,
probably not.” The State asked why not, and R.F. replied,
“Because I probably going to get scared.” The State asked
why she would be scared, and R.F. replied, “Because I’m
going to probably do is probably I kind of — I’m going to
get — probably going to end up doing is probably do is just
try.” The State then asked questions to establish that R.F.
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knew the difference between the truth and a lie and that R.F.
was going to tell the truth.
Smith’s counsel cross-examined R.F. and elicited testimony
that R.F. had talked to several people about what had hap-
pened to her. Counsel asked whether R.F. understood that
Smith would not get to ask her questions and that instead
counsel would ask questions. R.F. replied that she understood
and that it did not scare her to be questioned by counsel.
Counsel asked whether it would be impossible for R.F. to talk
if Smith were in the room, and she replied, “Um, well, I, um,
I’m going to be kind of scared.” Upon further questioning by
Smith’s counsel, R.F. stated:
I probably I don’t want to see him because I don’t want
to and I just think that I just don’t want to see him at
all. And I really do not want to live with him anymore
because I know what happened and I just don’t think that
he is not a good dad to me.
After Smith’s counsel finished questioning R.F., the court
said, “All right. [R.F.], I am going to allow you to give your
testimony in this room outside the presence of [Smith.]” The
court also stated that R.F.’s guardian ad litem would be allowed
to stay with her during her testimony. After allowing a brief
time for counsel to prepare, the court began R.F.’s testimony by
noting for the record that the court was in the jury room with
R.F., R.F.’s guardian ad litem, the State’s counsel, and Smith’s
counsel present. The court reminded R.F. that she was under
oath, and the State began its direct examination of R.F.
After some initial general questioning, the State asked
R.F. whether she remembered “a time when you were in
your mom and dad’s bedroom with your mom and your dad
and [Lauhead].” R.F. replied that she remembered. R.F. tes-
tified that Smith came downstairs to her bedroom and took
her upstairs. R.F. testified that when she was in Smith and
Rochelle’s bedroom, Smith took her clothes off and he lay
on top of her while he had no clothes on. R.F. testified that
Lauhead and Rochelle were also present in the bedroom. The
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State used diagrams of male and female bodies to aid R.F.’s
testimony. By referencing the diagrams, R.F. indicated that
Smith had touched her breasts with his hands. She also tes-
tified that both Smith and Lauhead had touched her genital
area with “that thing,” indicating the genital area of the male
body diagram.
After the State completed its direct examination of R.F.,
Smith’s counsel asked to leave the jury room before cross-
examining R.F. in order to confer with Smith who had not been
present for R.F.’s testimony. The court allowed a break of 5
minutes. The trial thereafter continued with defense counsel’s
cross-examination of R.F. in the jury room outside of Smith’s
presence. Smith’s counsel questioned R.F. regarding, inter alia,
her prior interviews by advocacy counselors.
After R.F.’s testimony was completed, the court returned
to the courtroom and the trial continued in Smith’s presence.
After the State completed its presentation of evidence and
rested, Smith moved to dismiss the charges. The court over-
ruled Smith’s motion.
Smith testified in his own defense. He generally denied
that he had been involved in sexual encounters with Rochelle
and Lauhead in March and April 2016. He testified that in
late September, he was suspicious that Rochelle was having a
sexual relationship with Lauhead. One day while the children
were in school, he argued with Rochelle and told her that if
she had sexual relations with Lauhead behind his back she
might as well have them in front of him. Rochelle led Smith
and Lauhead, who was also in the house, to the bedroom
where she had sexual relations with Smith while Lauhead
watched. After Smith was finished, Rochelle had sexual rela-
tions with Lauhead. Smith testified that he watched Rochelle
and Lauhead for a while but became disgusted and left. Smith
denied that R.F. was involved in the encounter in September,
and he denied having had any sexual relations with R.F. or
touching her breasts or vagina at any time. Smith testified
that in October, one of his younger daughters told him she
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had seen Lauhead naked with R.F. Smith had the daughter tell
Rochelle what she had seen, and he then went to the police to
report what Lauhead had done.
During its cross-examination of Smith, the State recited
certain statements and asked Smith whether he had ever made
those statements to anyone. Smith denied making the state-
ments. In its rebuttal, the State called as a witness Russell
Solky, who in October 2016 had spent 2 days in the Harlan
County jail with Smith as his cellmate. Solky testified regard-
ing statements Smith had made to him during that time.
The statements Solky recited included some of the statements
Smith had just denied having made to anyone during the State’s
cross-examination of Smith. Solky testified that he and Smith
talked about why each of them was in jail and that Smith said
that he had been arrested for child molestation and that “his
wife made a statement or something like that.” Smith also told
Solky that his wife “kept breaking his self-esteem down, trying
to say that he was a worthless piece of shit, no woman would
ever want to be with him.” Solky asked Smith whether he had
had an affair, and Smith replied that he could not, because “it’s
a real small town, everybody knows me. . . . [I]f I go to a bar
and try to pick somebody up, everybody knows me, I can’t do
that.” During the State’s redirect examination, Solky further
testified that Smith “said when he wasn’t getting [sex] from
his wife he was getting it from his kid.” When Solky asked
which of his children, Smith replied that “it was his special
needs daughter.”
On cross-examination, Smith elicited testimony from Solky
to the effect that charges against Solky had been dismissed in
exchange for his testimony in this case. On surrebuttal, Smith
testified and denied the statements Solky attributed to him.
Smith testified that he had told Solky that he was in jail for
“assault,” not child molestation.
After all the evidence had been presented, the court ordered
a schedule for the parties to submit written closing statements.
On November 15, 2017, the court filed an order in which it
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found Smith guilty beyond a reasonable doubt of both first
degree sexual assault of a child and felony child abuse. In the
order, the court reviewed the charges against Smith and the
evidence presented at the trial. In connection with its review
of R.F.’s testimony, the court stated that it had sustained the
State’s motion and allowed R.F. to give her testimony in cam-
era. The court stated, “There was evidence during the trial that
R.F. is autistic and has Fragile X Syndrome. R.F. clearly suf-
fers from a mental disability. Her manner was very child-like,
not at all what you would expect of a 16 year old.”
In its order, after reviewing the evidence, the court set forth
the reasoning behind its findings of guilt and which evidence it
found determinative. The court stated that it found Rochelle’s
testimony to be credible. The court noted that if Rochelle was
lying, it would have been easy for her to say that Smith had
penetrated R.F. with his finger or with his penis; the court
stated that it was “doubtful that Rochelle knew that under the
law, placing your fingers between the lips of the labia or rub-
bing the top of the vagina was penetration, and thereby, first
degree sexual assault.” Turning to R.F.’s testimony, the court
stated that her testimony alone would not support convic-
tion beyond a reasonable doubt, because R.F.’s testimony was
“troubling” and “inconsistent” with regard to whether Smith
had assaulted her. But the court stated that it had not “wholly
disregarded” R.F.’s testimony, because R.F. was consistent in
her testimony that Lauhead had sexually assaulted her and
because R.F. had credibly testified that Smith retrieved her
from her bedroom and had undressed her. The court further
found credible Solky’s testimony regarding statements Smith
made to him when they were cellmates. The court specifically
found credible Solky’s testimony regarding Smith’s statements
concerning the way his wife treated him and how when he was
not getting sex from his wife, he would get it from his “special
needs daughter.”
The court stated that it gave the court pause that Smith was
the one who had initially reported Lauhead’s sexual assault of
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R.F. to police. But the court’s concerns appeared to be satisfied
by the State’s argument that two factors may have prompted
Smith’s report to police. First, Smith feared that R.F. might
be pregnant, and second, Smith’s younger daughter had seen
Lauhead naked with R.F. These two factors gave Smith reason
to fear that “a lot of questions were going to be asked” and
gave him motivation to “‘rat out’” Lauhead.
Based on the evidence and reasoning set forth above, the
court found Smith guilty of first degree sexual assault of a
child. Regarding the charge of felony child abuse, the court
determined that evidence of Smith’s “introducing R.F. into
the foursome, penetrating her and not stopping Lauhead from
sexually assaulting her is child abuse that meets both prongs
of § 28-707 as charged in this case.” The court further noted
that even if Smith had not himself sexually assaulted R.F.,
“he would be guilty of child abuse for allowing Lauhead to
sexually assault her.” The court therefore found Smith guilty of
child abuse beyond a reasonable doubt.
The district court thereafter sentenced Smith to imprison-
ment for 20 to 30 years for first degree sexual assault of a child
with a mandatory minimum sentence of 15 years and with
credit for time served of 199 days. The court also sentenced
him to imprisonment for 2 to 3 years for felony child abuse and
ordered the sentence to be served concurrently to the sentence
for first degree sexual assault of a child.
Smith appeals his convictions and sentences.
ASSIGNMENTS OF ERROR
Smith claims that the district court erred when it heard R.F.’s
testimony outside Smith’s presence, in violation of § 29-1926
and in violation of Smith’s constitutional right of confronta-
tion. Smith, who has new counsel on direct appeal, also claims
that trial counsel provided ineffective assistance when counsel
(1) failed to call witnesses that Smith had informed counsel
he wanted to testify, (2) failed to use video recordings of prior
interviews of R.F. to impeach her testimony, and (3) failed
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to use a video recording of a prior interview of Rochelle to
impeach her testimony. Smith further claims that there was
insufficient evidence to support his convictions and that the
court imposed excessive sentences.
STANDARDS OF REVIEW
[1] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination. State v. Kennedy, 299 Neb. 362, 908 N.W.2d
69 (2018).
[2] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution and
article I, § 11, of the Nebraska Constitution and reviews
the underlying factual determinations for clear error. State v.
Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
[3] Whether a claim of ineffective assistance of trial counsel
may be determined on direct appeal is a question of law. State
v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018). In review-
ing claims of ineffective assistance of counsel on direct appeal,
an appellate court decides only whether the undisputed facts
contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assist­
ance and whether the defendant was or was not prejudiced by
counsel’s alleged deficient performance. Id.
[4] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, 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. 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. Mueller, 301 Neb. 778, 920
N.W.2d 424 (2018).
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[5] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. Id.
ANALYSIS
District Court Erred by Hearing R.F.’s Testimony Outside
Smith’s Presence Without Following Constitutional
Requirements to Protect Smith’s Confrontation
Rights, but Such Error Was Harmless Error.
Smith first claims that the district court erred when it heard
R.F.’s testimony outside his presence. He contends that the
court’s decision violated both § 29-1926 and his constitutional
right of confrontation. Smith makes three general arguments
with respect to R.F.’s in camera testimony outside his pres-
ence. Smith argues that (1) § 29-1926 did not apply to R.F.’s
testimony, because the statute does not apply to a witness who
is older than 11 years of age; (2) even if § 29-1926 applied, the
court failed to make the particularized findings required under
the statute; and (3) whether or not § 29-1926 applied, the court
infringed upon his constitutional right of confrontation when it
heard R.F.’s testimony outside his presence and without mak-
ing accommodations to protect his right of confrontation. We
determine that § 29-1926 did not apply to R.F.’s testimony and
did not justify the court’s decision to hear R.F.’s testimony
outside Smith’s presence. We further determine that, to the
extent the court had authority outside § 29-1926 to hear R.F.’s
testimony in camera rather than in the courtroom, the court’s
decision to hear R.F.’s testimony outside Smith’s presence
did not comport with constitutional requirements to protect
Smith’s right of confrontation. However, given the court’s
explicit findings in this bench trial, we conclude that the error
was harmless.
We first address, without reference to constitutional confron-
tation requirements, whether § 29-1926 applied to the court’s
decision to allow R.F. to testify in camera. The State had filed a
motion prior to trial in which it requested that R.F. be allowed
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to testify at trial in camera pursuant to § 29-1926(1)(d).
We note that at both the hearing prior to trial and the hear-
ing immediately prior to R.F.’s testimony, § 29-1926 and its
requirements were not explicitly referenced, and that therefore,
it is not clear whether the court made its decisions regarding
R.F.’s testimony pursuant to § 29-1926 or pursuant to some
other authority. Nevertheless, because the State’s motion stated
that it was made pursuant to § 29-1926(1)(d), we examine the
statute and its applicability to this case.
Section 29-1926 generally provides that under specific cir-
cumstances, “a child victim of or child witness to” a felony
may provide testimony by videotape deposition rather than
testifying in court. Section 29-1926(d) provides, “If the child
testifies at trial in person rather than by videotape deposition,
the taking of the child’s testimony may, upon request of the
prosecuting attorney and upon a showing of compelling need,
be conducted in camera.” Section 29-1926(g) also provides,
“For purposes of this section, child means a person eleven
years of age or younger at the time the motion to take the
deposition is made or at the time of the taking of in camera
testimony at trial.”
At the time of the trial in this case, R.F. was 16 years old.
In its motion, the State asserted that R.F. “functions at a much
younger age than her biological age would suggest.” However,
the definition of “child” in § 29-1926(g) refers to the chrono-
logical age of “a person eleven years of age or younger.” The
definition makes no reference to a person who functions at the
level of a person 11 years of age or younger.
[6,7] Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. State v. McGuire, 301 Neb.
895, 921 N.W.2d 77 (2018). Giving § 29-1926(g) its plain
and ordinary meaning, a “child” for purposes of § 29-1926
is defined as a person whose biological age is 11 years or
younger. It is not within the province of the courts to read
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a meaning into a statute that is not there or to read anything
direct and plain out of a statute. State v. Swindle, 300 Neb.
734, 915 N.W.2d 795 (2018). We therefore cannot read into
§ 29-1926 the inclusion of persons whose biological age is
over 11 years but whose mental or functional age is equivalent
to that of one who is 11 years of age or younger. To the extent
there is sentiment that such a witness should be included
within the operation of the statute, “the remedy lies with the
Legislature to amend” § 29-1926. See State v. Wright, 261
Neb. 277, 288, 622 N.W.2d 676, 684 (2001). In this regard,
we are aware of at least one other state which has statutes that
operate like § 29-1926 but explicitly apply to witnesses with
intellectual disabilities. See Fla. Stat. Ann. §§ 92.53 and 92.54
(West Cum. Supp. 2019).
Having determined that § 29-1926 did not apply to R.F.’s
testimony in this case, we need not consider whether the court
complied with the specific requirements of § 29-1926 when
it made its decision. Nevertheless, we note in passing that
§ 29-1926(h) provides, in part, that “[n]othing in this section
[regarding making accommodations] shall restrict the court
from conducting the pretrial deposition or in camera proceed-
ings in any manner . . . consistent with the right to confronta-
tion guaranteed in the [federal and Nebraska Constitutions].”
These portions of the statute indicate a legislative recognition
that the statute applies to a decision to allow a witness to tes-
tify outside a courtroom setting but that the decision whether
a deposition may be taken or testimony given outside the pres-
ence of the defendant is to be determined pursuant to other
authority, including constitutional requirements protecting the
right of confrontation.
In this regard, Smith’s complaint focuses on the fact that
R.F.’s testimony was given outside his presence. Thus, our
analysis inevitably turns to whether the court’s decision to
hear R.F.’s testimony outside Smith’s presence comported
with constitutional requirements to protect his confronta-
tion rights. The U.S. Supreme Court addressed constitutional
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confrontation requirements with regard to a child witness’ tes-
timony outside the defendant’s physical presence in Maryland
v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666
(1990). In that case, the Court considered a Maryland statute
which, unlike our reading of § 29-1926 set forth above, the
Maryland court had interpreted to allow the child to testify
outside the presence of the defendant. In considering whether
the Maryland statute could be used to allow testimony out-
side the defendant’s presence without violating constitutional
confrontation rights, the Court set forth principles of con-
frontation analysis that we believe have application whether
a court’s decision on how to take witness testimony is made
pursuant to a statute or pursuant to some other authority of
the court.
[8] In Maryland v. Craig, the Court reasoned that while the
Confrontation Clause guaranteed a criminal defendant a face-
to-face meeting with witnesses appearing before the trier of
fact, that guarantee was not an absolute right. The Court further
stated that while the face-to-face requirement was not absolute,
it could not be disposed of easily. We note that Justice Scalia,
joined by three other justices, dissented and questioned whether
face-to-face confrontation could be dispensed with even under
the standards set forth by the majority. Justice Scalia reasoned
that the Confrontation Clause “guarantees specific trial proce-
dures that were thought to assure reliable evidence, undeni-
ably among which was ‘face-to-face’ confrontation.” Maryland
v. Craig, 497 U.S. at 862 (Scalia, J., dissenting) (emphasis
in original).
[9] Based on its reasoning that a face-to-face confronta-
tion was not an absolute right but could not be disposed of
easily, the Court in Maryland v. Craig held that “a defend­
ant’s right to confront accusatory witnesses may be satisfied
absent a physical, face-to-face confrontation at trial only where
denial of such confrontation is necessary to further an impor-
tant public policy and only where the reliability of the testi-
mony is otherwise assured.” 497 U.S. at 850. The Court then
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analyzed the Maryland statutory procedure in light of these
two requirements.
The Court in Maryland v. Craig first addressed the second
requirement—that reliability of the testimony is otherwise
assured—and concluded that Maryland’s statute preserved “all
of the other elements of the confrontation right,” which the
Court described to include requirements that the witness must
be found competent to testify and must testify under oath;
that the defendant retained full opportunity for contemporane-
ous cross-examination; and that the judge, jury, and, notably,
the defendant were able to view the demeanor of the wit-
ness as he or she testified. 497 U.S. at 851. The Court stated
that this final requirement was satisfied, because the statute
required use of a one-way closed circuit television procedure
through which the court, the jury, and the defendant were able
to view the questioning of the witness by prosecutors and
defense counsel.
Having found that the statute met the second requirement,
the Court indicated that the critical inquiry in Maryland v.
Craig was whether dispensing with face-to-face confronta-
tion was necessary to further an important public policy.
The Court concluded that “a State’s interest in the physical
and psychological well-being of child abuse victims may be
sufficiently important to outweigh, at least in some cases,
a defend­ ant’s right to face his or her accusers in court.”
Maryland v. Craig, 497 U.S. 836, 853, 110 S. Ct. 3157,
111 L. Ed. 2d 666 (1990). The Court cautioned, however,
that the “requisite finding of necessity must of course be a
case-specific one: The trial court must hear evidence and
determine whether use of the one-way closed circuit televi-
sion procedure is necessary to protect the welfare of the
particular child witness who seeks to testify.” Id., 497 U.S. at
855. The Court further stated that the trial court “must also
find that the child witness would be traumatized, not by the
courtroom generally, but by the presence of the defend­ant.”
Id., 497 U.S. at 856. The Court reasoned that “[d]enial of
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face-to-face confrontation is not needed to further the state
interest in protecting the child witness from trauma unless it
is the presence of the defendant that causes the trauma,” and
it noted that general courtroom trauma could be addressed by
permitting the child witness “to testify in less intimidating
surroundings, albeit with the defend­ant present.” Id., 497 U.S.
at 856. The Court finally stated that in order to dispense with
face-to-face confrontation, the trial court must further “find
that the emotional distress suffered by the child witness in the
presence of the defendant is more than de minimis, i. e., more
than ‘mere nervousness or excitement or some reluctance to
testify.’” Id., 497 U.S. at 856. The Court did not set forth a
“minimum showing of emotional trauma required for use of
the special procedure,” but it found that the standard used
in the Maryland statute—that the “child witness will suffer
‘serious emotional distress such that the child cannot reason-
ably communicate’”—was sufficient to meet constitutional
standards. Id., 497 U.S. at 856. Having set forth these stan-
dards, the Court remanded the cause for further proceedings
to determine whether a showing of necessity had been made
under these standards. Maryland v. Craig, supra.
The Court summarized its holding in Maryland v. Craig, 497
U.S. at 857, as follows:
[W]here necessary to protect a child witness from trauma
that would be caused by testifying in the physical presence
of the defendant, at least where such trauma would impair
the child’s ability to communicate, the Confrontation
Clause does not prohibit use of a procedure that, despite
the absence of face-to-face confrontation, ensures the
reliability of the evidence by subjecting it to rigorous
adversarial testing and thereby preserves the essence of
effective confrontation.
We set forth similar standards in State v. Warford, 223 Neb.
368, 389 N.W.2d 575 (1986), a case that was decided before
Maryland v. Craig and before the 1988 enactment of § 29-1926.
In Warford, the trial court allowed a child victim-witness to
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testify in chambers with the judge and counsel for both parties
present in chambers, while the defendant and the jury watched
from the courtroom by closed-circuit television. We determined
that the procedure used by the trial court in Warford failed
to protect the defendant’s right to confrontation under both
the federal and Nebraska Constitutions. Similar to the U.S.
Supreme Court’s subsequent holding in Maryland v. Craig, we
held in Warford that “[t]he right of confrontation is not . . .
immune to exception,” but that “a limitation of the right can
only be necessitated by a showing of a compelling interest and
any infringement must be as minimally obtrusive as possible.”
223 Neb. at 375, 389 N.W.2d at 580-81.
With respect to the “showing of a compelling interest,” we
concluded that the record in Warford did not show “a compel-
ling need to protect the child witness from further injury.” 223
Neb. at 376, 389 N.W.2d at 581. We stated that before the wit-
ness could be allowed to testify outside the defendant’s pres-
ence, there should be “a particularized showing on the record
that the child would be further traumatized or was intimidated
by testifying in the courtroom in front of the defendant.” Id. at
377, 389 N.W.2d at 581. With respect to the infringement of
the right to confrontation being as minimally obtrusive as pos-
sible, we stated that “[a]t the very least, the defendant must at
all times have a means of communicating with his attorney, and
the court must be able to control the examination by interrupt-
ing the questioning to rule on objections.” Id. We noted that
under the procedure used in Warford, “[t]he defendant could
not physically confront his accuser, nor could he confront the
witness through counsel because he had no means of communi-
cating with his attorney,” and we concluded that this procedure
“unduly inhibited the defendant’s confrontation right and was
therefore constitutionally objectionable.” 223 Neb. at 377, 389
N.W.2d at 582.
We review the procedure used by the district court in this
case under the standards set forth in Maryland v. Craig, 497
U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), and in
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Warford. As did the Court in Maryland v. Craig, we first look
to the second requirement—whether reliability of the testimony
is otherwise assured despite the absence of face-to-face con-
frontation, or as stated in Warford, whether the infringement of
a defendant’s right of confrontation was as minimally obtrusive
as possible. The Court in Maryland v. Craig found this require-
ment was met, because the Maryland statutory procedure pre-
served all the other “elements” of confrontation, including that
the witness must be found competent to testify and must testify
under oath; that the defendant retains full opportunity for con-
temporaneous cross-examination; and that the judge, jury, and
the defendant are able to view the demeanor of the witness as
he or she testified. 497 U.S. at 851. In the present case, R.F.
was found competent to testify and she testified under oath.
This was a bench trial, so the jury’s ability to view the witness
was not relevant, but the court, as the fact finder, was able to
view R.F. as she testified.
However, because Smith was not able to view R.F.’s
demeanor as she testified, whether by closed-circuit televi-
sion or otherwise, the procedure in this case fell short of that
set forth in Maryland v. Craig in a significant way. This fail-
ure limited Smith’s ability to confront R.F., because he was
not able to advise counsel on matters that he observed that
might provide avenues to challenge the credibility of R.F.
Furthermore, in Warford, we stated that the defendant must at
all times have a means of communicating with his attorney.
Although in the present case the court allowed Smith’s attor-
ney to briefly meet with Smith after R.F.’s direct testimony
and before the cross-examination, the procedure did not fully
protect Smith’s right of confrontation, because he had not been
able to view R.F.’s direct testimony and he was not able to
communicate with his attorney during R.F.’s direct testimony
or during the cross-examination.
Turning to the requirement in Maryland v. Craig that
infringement of the right of confrontation must be found to be
necessary to further an important public policy, or, as stated
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in State v. Warford, 223 Neb. 368, 389 N.W.2d 575 (1986), a
showing of a compelling interest, we acknowledge that there
is an important public policy in protecting young victims who
may be retraumatized by testifying in front of a defendant. In
this respect, we note that Nebraska’s public policy has been
expressed, at least to some extent, in § 29-1926, and as dis-
cussed above, the present case does not fit within the public
policy stated in § 29-1926, because R.F. was 16 years old and
the statute applies only to those 11 years of age and younger.
Also as noted above, even when § 29-1926 applies, it does
not explicitly allow for testimony outside the presence of the
defendant and it does show a legislative intent to respect the
defendant’s right of confrontation, including the right to face-
to-face confrontation. Taking guidance from the constitution,
cases, and statute, we cannot unreservedly state that adherence
to a generally recognized important public policy or compel-
ling interest was demonstrated in this case.
We believe that in the absence of an express public policy
that covers a specific case, before an infringement of confron-
tation rights can be justified in a specific case, it is vital under
Maryland v. Craig that there is a clear determination of the
justification made on a case-specific basis.
In Warford, we required “a particularized showing on the
record that the child would be further traumatized or was
intimidated by testing in the courtroom in front of the defend­
ant.” 223 Neb. at 377, 389 N.W.2d at 581. Although it does not
apply here, § 29-1926(h) requires “particularized findings on
the record” to determine that “there is a compelling need that
child testimony accommodation is required.” But, foremost,
the constitutional requirements for several ultimate findings
were set forth in Maryland v. Craig, 497 U.S. 836, 110 S. Ct.
3157, 111 L. Ed. 2d 666 (1990). That decision mandates those
findings, at a minimum.
In the present case, the court held a hearing to determine
whether R.F. could testify outside Smith’s presence. However,
after the hearing, the court did not make the ultimate findings
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mandated by Maryland v. Craig, which, in essence, require a
compelling interest to support its decision to allow R.F. to tes-
tify outside Smith’s presence. Instead, at the end of the hearing,
the court simply told R.F. that it would allow her to testify in
camera outside Smith’s presence. As set forth in Maryland v.
Craig, the requisite findings include findings that (1) the child
witness would be traumatized, not by the courtroom generally,
but by the presence of the defendant, and (2) “the emotional
distress suffered by the child witness in the presence of the
defendant is more than de minimis, i. e., more than ‘mere
nervousness or excitement or some reluctance to testify.’”
497 U.S. at 856. The Court noted in this respect that general
courtroom trauma could be addressed by permitting the child
witness “to testify in less intimidating surroundings, albeit with
the defendant present,” thus respecting the defendant’s con-
frontation right. Id., 497 U.S. at 856. Incidentally, this is con-
sistent with the terms of § 29-1926, which we see as protecting
the child witness from courtroom trauma while protecting the
defendant’s right of confrontation.
We read the record before us, but without the benefit of
such findings. R.F.’s responses during the hearing indicate
feelings of nervousness, excitement, or reluctance to testify
in the presence of Smith, but not necessarily severe emotional
distress. R.F. understandably states that she does not want to
be around Smith, but she frames her aversion as not wanting
to live with him again because he is not a good parent. When
asked whether she wants to testify in front of Smith, she says
that she does not and expresses nervousness but concludes that
what she will “probably do is just try.” This does not clearly
show that R.F. would suffer trauma that would prevent her
from being able to communicate.
In the absence of the ultimate findings required by Maryland
v. Craig, it is difficult for us to determine from the cold record
of R.F.’s statements how the prospect of testifying in front of
Smith affected her; nonverbal cues and body language could
inform an impression that her words do not. And although
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not a requirement, it might have been productive in this case
to have testimony from an expert or someone who knew R.F.
well to indicate the effect testifying in front of Smith could
have had on R.F. Furthermore, in the record before us, there
are assertions that R.F. suffers certain developmental impair-
ments, but it is not clear whether there has been expert evi-
dence regarding her level of functioning or how testifying
in Smith’s presence might cause her a special trauma due to
a disability.
Given the applicable law and record in this case, we con-
clude the procedure used was constitutionally deficient. We
note that in the present case, there were not sufficient par-
ticularized findings to support a public policy or a compel-
ling interest to curtail Smith’s confrontation rights. We further
determine that there were not adequate procedures to compen-
sate for the lack of face-to-face confrontation, mainly because
Smith was not able to view R.F.’s testimony, even remotely,
and he did not have communication with counsel at all times.
Based on these shortcomings, we conclude that the court’s
decision to hear R.F.’s testimony outside Smith’s presence did
not comport with constitutional confrontation requirements as
set forth in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157,
111 L. Ed. 2d 666 (1990), and State v. Warford, 223 Neb. 368,
389 N.W.2d 575 (1986).
[10] Although the court erred in hearing R.F.’s testimony
outside Smith’s presence without adequately safeguarding
Smith’s confrontation rights, such error is subject to harmless
error review. We have said that a violation of a defendant’s
constitutional right of confrontation that results in the improper
admission of evidence is trial error subject to harmless error
review. See State v. Leibel, 286 Neb. 725, 838 N.W.2d 286
(2013). The U.S. Supreme Court has said that an unconstitu-
tional “denial of face-to-face confrontation,” like other types
of violations of the Confrontation Clause, is subject to harm-
less error review. Coy v. Iowa, 487 U.S. 1012, 1021, 108 S. Ct.
2798, 101 L. Ed. 2d 857 (1988).
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[11,12] Where the trial error is of a constitutional dimension,
the burden must be on the beneficiary of the error to prove
beyond a reasonable doubt that the error did not contribute
to the verdict obtained. State v. Leibel, supra. This standard
applies equally to jury and bench trials. Id. Whether error is
harmless in a particular case depends “‘upon a host of fac-
tors,’” and we find the fact of a bench trial a proper consider-
ation in conducting our harmless error review. Id. at 740, 838
N.W.2d at 298. Harmless error review ultimately looks to the
basis on which the trier of fact actually rested its verdict; the
inquiry is not whether in a trial that occurred without the error
a guilty verdict would surely have been rendered, but, rather,
whether the actual guilty verdict rendered in the questioned
trial was surely unattributable to the error. Id. As outlined
below, we find the error in this case to be harmless.
In our harmless error review in this case, we consider
whether Smith’s convictions were surely unattributable to
R.F.’s in camera testimony outside Smith’s presence. If this
were a jury trial, it would be challenging for an appellate
court to say that a conviction for sexual assault was surely
unattributable to the alleged victim’s testimony. However, in
this case, there was a bench trial and we have the benefit of
the court’s order which set forth in detail the reasoning behind
the court’s finding of guilt beyond a reasonable doubt. In that
order, the court specifically stated that R.F.’s testimony, stand-
ing alone, would not support conviction beyond a reasonable
doubt and the court described her testimony as “troubling” and
“inconsistent.” Instead, the court relied mainly on Rochelle’s
testimony to establish the elements of the offenses and it char-
acterized R.F.’s testimony as merely helpful to the extent it
corroborated portions of Rochelle’s testimony. The court also
cited Solky’s testimony regarding Smith’s statements in jail as
an important factor in its verdicts.
We think that the court’s order makes clear that the error in
hearing R.F.’s testimony outside Smith’s presence was harm-
less error in at least two respects. First, the court relied on
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evidence other than R.F.’s testimony and R.F.’s testimony
was helpful only to the extent it corroborated other evidence.
Second, despite Smith’s absence at the time of R.F.’s testi-
mony, the presence of other “elements” of the right of confron-
tation, particularly cross-examination by defense counsel, was
sufficient to call the credibility of R.F.’s testimony into doubt;
this is evidenced by the court’s limited reliance on her testi-
mony and the court’s explicit statement that R.F.’s testimony
alone would not have supported conviction.
Given the court’s order and the record, we determine that
the court’s verdicts were surely unattributable to R.F.’s testi-
mony and more specifically that they were surely unattribut-
able to R.F.’s testimony that was given outside Smith’s pres-
ence in violation of his right of confrontation. We therefore
conclude that although the court erred by allowing R.F. to
testify outside Smith’s presence without following constitu-
tional requirements to protect Smith’s right of confrontation,
such error was harmless error and does not require reversal of
Smith’s convictions.
Smith’s Claims of Ineffective Assistance of Counsel
Cannot Be Reviewed on Direct Appeal but Are
Stated With Sufficient Particularity to Be
Preserved for Postconviction Review.
[13] Smith next claims that his trial counsel provided inef-
fective assistance in various respects. When a defendant’s
trial counsel is different from his or her counsel on direct
appeal, the defendant must raise on direct appeal any issue
of trial counsel’s ineffective performance which is known to
the defend­ant or is apparent from the record, otherwise, the
issue will be procedurally barred in a subsequent postconvic-
tion proceeding. State v. Golyar, 301 Neb. 488, 919 N.W.2d
133 (2018). Smith has different counsel on appeal, and Smith
specifically claims that his trial counsel provided ineffective
assistance when counsel (1) failed to call witnesses that Smith
had informed counsel he wanted to testify, (2) failed to use
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video recordings of prior interviews of R.F. to impeach her
testimony, and (3) failed to use a video recording of a prior
interview of Rochelle to impeach her testimony.
[14,15] An ineffective assistance of counsel claim is raised
on direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make a
determination of whether the claim can be decided upon the
trial record and (2) a district court later reviewing a petition
for postconviction relief to recognize whether the claim was
brought before the appellate court. Id. The fact that an ineffec-
tive assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. Id. The determin-
ing factor is whether the record is sufficient to adequately
review the question. Id.
With regard to his claim that trial counsel failed to call
witnesses, Smith states in his brief that the three persons trial
counsel failed to call were named “Linda Mask, Verlon Mask,
and Sherri Hopkins.” Brief for appellant at 15. He argues that
the record on direct appeal is not sufficient to address this
claim, because the record does not disclose what testimony the
witnesses would have provided, nor does it disclose counsel’s
reasons for failing to call the witnesses. Smith states that he
raised the claim and named the potential witnesses in order to
preserve the claim for postconviction review.
In response, the State notes that the record indicates that
Smith might have intended to refer to “‘Linda Mast’” and
“‘Verlon Mast,’” rather than “‘Linda Mask’” and “‘Verlon
Mask.’” Brief for appellee at 14. However, the State agrees
with Smith’s argument that the record on direct appeal is
not sufficient to review the claim and that Smith sufficiently
alleged the claim to preserve it for postconviction review.
Smith further claims that counsel failed to impeach the tes-
timony of both R.F. and Rochelle by using video recordings
of prior interviews that each witness had given. Smith argues
that the record is not sufficient to review these claims on
direct appeal because the full video recordings are not in the
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record. The State concedes that each of these claims was suf-
ficiently alleged by Smith, but the State argues that the record
on direct appeal is sufficient to review each claim and that the
record demonstrates that each claim is without merit. The State
notes that Smith used statements from the prior interviews to
impeach each of the witnesses and that each of the witnesses
admitted to making the statements. However, Smith argues in
reply that the record shows only the statements that trial coun-
sel actually used to impeach the witnesses, but it does not show
statements that could or should have been used to impeach the
witnesses’ testimony.
We determine that with regard to his claim that trial coun-
sel failed to call witnesses, Smith sufficiently identified three
particular potential witnesses. We further determine that with
regard to his claims that trial counsel failed to use prior inter-
views to impeach the testimony of witnesses, Smith identified
two particular witnesses and the particular prior interviews of
each witness. We conclude with respect to each of these three
claims of ineffective assistance of trial counsel that the record
on direct appeal is not sufficient to review the claim but that
Smith alleged the claim with sufficient particularity to preserve
the claim for postconviction review.
The Evidence Was Sufficient to
Support Smith’s Convictions.
Smith next claims that there was not sufficient evidence to
support his convictions. With respect to his conviction for first
degree sexual assault of a child, Smith contends that there was
no evidence that he had sexually penetrated R.F. With respect
to his conviction for child abuse, Smith concedes that the
testimony of R.F. and Rochelle could establish the elements
of child abuse but he contends that the testimony was not
credible. We conclude there was sufficient evidence to support
both convictions.
One is guilty of first degree sexual assault of a child under
§ 28-319.01(1)(b) “[w]hen he or she subjects another person
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who is at least twelve years of age but less than sixteen years
of age to sexual penetration and the actor is twenty-five years
of age or older.” Smith does not dispute that there was suffi-
cient evidence that R.F. was at least 12 but less than 16 years of
age and that he was 25 years of age or older at the time of the
alleged incident. But he contends that there was no evidence
that he subjected R.F. to “sexual penetration” which is defined
under Neb. Rev. Stat. § 28-318(6) (Reissue 2016) to include,
inter alia, “any intrusion, however slight, of any part of the
actor’s or victim’s body or any object manipulated by the actor
into the genital or anal openings of the victim’s body.”
In this case, Rochelle testified that Smith touched R.F.’s
vagina during the group encounter. When asked by the State
to describe how Smith had touched R.F.’s vagina, Rochelle
described Smith’s actions as “putting his hand on it,” “rub-
bing it,” and “fondling the top of it.” Upon further question-
ing, Rochelle testified that she had not seen Smith put his
finger inside R.F.’s vagina, but when the State asked whether
Smith had touched R.F. “between the skin folds known as the
labia,” Rochelle replied, “Yes.” The State then asked how long
Smith had touched R.F. “between the lips of her vagina,” and
Rochelle replied that he had done so for “[m]aybe three to
five seconds” and that she had seen him touch R.F. in this way
“[j]ust once.”
Based on our precedent, we determine that evidence that
Smith had touched R.F. “between the skin folds known as the
labia” and “between the lips of her vagina” was sufficient to
support a finding of sexual penetration. Interpreting the defini-
tion of “sexual penetration” quoted above, we have said:
The slightest intrusion into the genital opening is suffi-
cient to constitute penetration, and such element may be
proved by either direct or circumstantial evidence. It is
not necessary that the vagina be entered or that the hymen
be ruptured; the entry of the vulva or labia is sufficient.
State v. Archie, 273 Neb. 612, 642, 733 N.W.2d 513, 536
(2007). See, also, State v. Kays, 21 Neb. Ct. App. 376, 838 N.W.2d
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366 (2013), disapproved on other grounds, State v. Filholm,
287 Neb. 763, 848 N.W.2d 571 (2014), and State v. Newman,
21 Neb. Ct. App. 29, 838 N.W.2d 317 (2013). Rochelle’s testi-
mony that Smith touched the “skin folds known as the labia”
and “between the lips of her vagina” was sufficient to prove
entry of the vulva or labia and therefore to support a finding
of sexual penetration and a conviction for first degree sexual
assault of a child.
One is guilty of child abuse under § 28-707(1) if
he or she knowingly, intentionally, or negligently causes
or permits a minor child to be:
(a) Placed in a situation that endangers his or her life or
physical or mental health; [or]
....
(e) Placed in a situation to be sexually abused as
defined in section 28-319, 28-319.01, or 28-320.01[.]
The offense is a Class IIIA felony under § 28-707(4) if the
offense is committed knowingly and intentionally and does not
result in serious bodily injury.
Evidence supporting the conviction for child abuse included
Rochelle’s testimony that Smith brought R.F. into the group
sexual encounter, wherein Smith subjected R.F. to sexual con-
tact and sexual penetration and allowed Lauhead to subject
R.F. to sexual penetration.
Smith does not argue that such testimony, if believed, would
not support a finding that he had placed R.F. in a situation to be
sexually abused. Instead, he attacks the credibility of Rochelle
and argues that a fact finder could not have found her testi-
mony believable.
As discussed above in connection with our harmless error
analysis, the court in this bench trial made specific findings
regarding the credibility and reliability of witnesses, includ-
ing Rochelle. In reviewing a conviction for sufficiency of the
evidence, we do not pass on the credibility of witnesses and
instead we recognize that it is a matter for the fact finder.
See State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).
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Viewing the evidence in this case in the light most favorable
to the prosecution, we conclude that based on its witness
credibility assessment, the court could have found the ele-
ments of felony child abuse had been proved beyond a reason-
able doubt.
We conclude that there was sufficient evidence to support
Smith’s convictions for first degree sexual assault of a child
and felony child abuse.
District Court Did Not Abuse Its
Discretion in Sentencing Smith.
Smith finally claims that the district court imposed exces-
sive sentences. We find no abuse of discretion in the court’s
sentencing of Smith.
Under § 28-319.01(2), first degree sexual assault of a child
is a Class IB felony with a mandatory minimum sentence of
15 years in prison for the first offense. Child abuse commit-
ted knowingly and intentionally that does not result in serious
bodily injury is a Class IIIA felony under § 28-707(4). Under
Neb. Rev. Stat. § 28-105(1) (Reissue 2016), a Class IB felony
is punishable by imprisonment for a minimum of 20 years
and a maximum of life, and a Class IIIA felony is punish-
able by imprisonment for a maximum of 3 years. Smith was
sentenced to concurrent terms of imprisonment for 20 to 30
years for first degree sexual assault of a child with a manda-
tory minimum sentence of 15 years and for 2 to 3 years for
felony child abuse. Therefore, Smith’s sentences were within
statutory limits and we review his sentencing for an abuse
of discretion.
[16-18] Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discre-
tion in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence to
be imposed. State v. Mueller, supra. In determining a sentence
to be imposed, relevant factors customarily considered and
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applied are the defendant’s (1) age, (2) mentality, (3) educa-
tion and experience, (4) social and cultural background, (5)
past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the com-
mission of the crime. Id. The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and all the facts and circumstances surrounding the defendant’s
life. Id.
Smith focuses mainly on the sentence for first degree sex-
ual assault of a child and contends that given certain factors,
imprisonment for a term of 15 to 20 years would have been
a more appropriate sentence than the term of 20 to 30 years
that was imposed. Smith asserts that certain factors mitigate
for a lesser sentence including that he is “an extremely low
risk individual,” see brief for appellant at 32; his criminal
history was minimal; he has no substance abuse issue; an
evaluation showed that he was not violent and did not meet
the criteria to be classified as a pedophile; and he is an hon-
orably discharged veteran who was disabled because of a
combat injury.
As Smith acknowledges, at the sentencing hearing, the court
stated that it had considered the results of testing that had been
done as part of a presentence evaluation, as well as Smith’s
lack of a criminal record, his military service, and his disabil-
ity. But the court stated it had also considered that Smith had
sexually assaulted a person who the record indicates was dis-
abled and that he had continued to deny responsibility. Given
that the court considered the factors urged by Smith, that the
record does not show the court considered improper factors,
and that the offense carried a potential maximum sentence
of imprisonment for life, we cannot say that the sentence of
imprisonment for 20 to 30 years was an abuse of discretion.
We determine that the district court did not abuse its discretion
in sentencing Smith.
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CONCLUSION
We conclude that the district court’s decision to hear R.F.’s
testimony outside Smith’s presence did not comport with con-
stitutional requirements to protect Smith’s right of confron-
tation; however, in this bench trial, given the court’s order
detailing its findings, the error was harmless error and does not
require reversal of Smith’s convictions. We further conclude
that the record on direct appeal is not sufficient to review
Smith’s claims of ineffective assistance of trial counsel but that
Smith alleged the claims with sufficient particularity to pre-
serve the claims for postconviction review. We finally conclude
that there was sufficient evidence to support Smith’s convic-
tions and that the district court did not abuse its discretion in
sentencing Smith. We therefore affirm Smith’s convictions and
sentences for first degree sexual assault of a child and felony
child abuse.
A ffirmed.