State v. Sinkey , 303 Neb. 345 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/21/2019 01:05 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. SINKEY
Cite as 303 Neb. 345
State of Nebraska, appellee, v.
Jason P. Sinkey, appellant.
___ N.W.2d ___
Filed June 7, 2019. No. S-18-717.
1. 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.
2. 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.
3. Effectiveness of Counsel: Postconviction: Records: 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.
4. 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.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. SINKEY
Cite as 303 Neb. 345
5. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. In order to avoid a procedural bar to a future postconviction pro-
ceeding, a claim of ineffective assistance of counsel must be presented
with enough particularity for (1) an appellate court to make a determina-
tion of whether the claim can be decided upon the trial record and (2)
a district court later reviewing a petition for postconviction relief to
be able to recognize whether the claim was brought before the appel-
late court.
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Matthew J. Miller for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
Jason P. Sinkey was convicted of two counts of first degree
sexual assault of a child and one count of possession of a fire-
arm by a prohibited person. He appeals. We affirm.
FACTUAL BACKGROUND
Sinkey was charged on August 14, 2017, with two counts
of first degree sexual assault of a child and one count of pos-
session of a firearm by a prohibited person. The sexual assault
charges arose from incidents occurring on July 10 and 11; the
possession of a firearm by a prohibited person charge resulted
from a firearm that was found in Sinkey’s residence while
members of law enforcement were executing a search warrant
with respect to the sexual assault charges.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. SINKEY
Cite as 303 Neb. 345
Sinkey was romantically involved with the mother of the
8-year-old victim, Z.P. Z.P. testified that on July 10, 2017,
when her mother was out of the home, she was lying on her
mother’s bed with Sinkey. Z.P. testified that Sinkey told her
to take her pants and underwear off, then touched her “pri-
vates,” by both “st[icking] his tongue into [her] privates” and
“lick[ing] his finger” and then rubbing her privates in the same
place that he had used his tongue.
Z.P. testified that later that same day, July 10, 2017, Sinkey
did the same thing: he “licked” with his tongue and with his
finger. Z.P. also testified that Sinkey showed her his penis,
which she described in a graphic manner, and asked her to
touch it. Z.P. testified that Sinkey told her to keep these activi-
ties a secret and not tell her mother or he might go to jail and
kill himself.
The next day, July 11, 2017, Z.P. testified that she was in
the living room of the apartment she shared with her mother
when Sinkey told her to remove her pants and underwear. Z.P.
testified that on this occasion, Sinkey just touched her with his
finger, which she said stayed outside of her. After this incident,
Z.P.’s mother came home and Z.P. told her what Sinkey had
done. Z.P. was instructed to take a shower; Z.P.’s mother then
had a friend drive her and Z.P. to the police station to report
the incident.
Sinkey was arrested later that same day on an outstanding
warrant for failure to appear for a court hearing on a traffic
offense. He was questioned by a detective with the Omaha
Police Department. During the course of that interview, Sinkey
admitted that he had licked Z.P.’s vagina and had touched
her sexually.
A search of the crime scene was conducted. Following the
issuance of a warrant, Sinkey’s residence was also searched.
During the search of Sinkey’s residence, law enforcement
found a rifle, ammunition, and other firearm-related items.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. SINKEY
Cite as 303 Neb. 345
Other evidence offered showed that Sinkey had previously
been convicted of a felony.
Following a jury trial, Sinkey was found guilty of both
counts of first degree sexual assault of a child and one count
of possession of a firearm by a prohibited person. Sinkey was
sentenced to 55 to 70 years’ imprisonment on each sexual
assault conviction and 3 to 5 years’ imprisonment for the pos-
session of a firearm conviction. The sentence for the posses-
sion of a firearm conviction was ordered to be served consecu-
tively to one count of sexual assault and concurrently with the
other count of sexual assault. Sinkey appeals.
ASSIGNMENTS OF ERROR
On appeal, Sinkey assigns that (1) there was insufficient
evidence to support his convictions and (2) his trial counsel
was ineffective.
STANDARD OF REVIEW
[1] 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.1
[2] Whether a claim of ineffective 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
1
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. SINKEY
Cite as 303 Neb. 345
facts contained within the record are sufficient to conclusively
determine whether counsel did or did not provide effective
assistance and whether the defendant was or was not preju-
diced by counsel’s alleged deficient performance.2
ANALYSIS
Sufficiency of Evidence.
In his first assignment of error, Sinkey assigns that there was
insufficient evidence to support his convictions.
We turn first to Sinkey’s convictions for first degree sexual
assault of a child. Sinkey contends that the State’s allegation
was based upon his admission to law enforcement that he
“‘lick[ed] an eight-year-old’s vagina,’” but that his purported
admission was not as “explicit or clear as a rational factfinder
should require before passing on a defendant’s guilt.”3 Sinkey
asserts that other than his admission, the State’s case rests
solely on statements made by Z.P.
Sinkey’s contention is without merit. He is correct in that the
only evidence to support his convictions was Z.P.’s testimony
that Sinkey “licked” and “rubbed” her vagina and Sinkey’s
confession that he “did lick her” and that he asked Z.P. to not
tell anyone. But contrary to his assertion, this testimony is suf-
ficient to support his convictions.
As is relevant on appeal, in order to prove the elements
of sexual assault of a child, the State needed to prove that
Sinkey subjected Z.P. to sexual penetration. Z.P. testified that
on at least two occasions, Sinkey used his tongue in and
around her vaginal area and that on three occasions, he used
his finger to rub and touch Z.P.’s vaginal area. We review the
evidence in a light most favorable to the State. This evidence
was sufficient to prove that Sinkey subjected Z.P. to sexual
2
Id.
3
Brief for appellant at 11.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. SINKEY
Cite as 303 Neb. 345
penetration, regardless of the content of Sinkey’s statement to
law enforcement.
In his brief, Sinkey asserts that there was insufficient evi-
dence to support his conviction for possession of a firearm by
a prohibited person. Other than that assertion, Sinkey makes
no argument with respect to this assignment of error. We con-
clude that the assertion was inadequate to preserve this issue
for appeal.4
The evidence was sufficient to support Sinkey’s convictions.
His first assignment of error is without merit.
Ineffective Assistance of Counsel.
In his second assignment of error, Sinkey contends that his
trial counsel was ineffective by failing to adequately cross-
examine certain witnesses at trial and failing altogether to
cross-examine other witnesses. Sinkey specifically notes con-
cerns with trial counsel’s cross-examination of the detective
and of the victim’s mother. In addition, Sinkey argues that
counsel was ineffective in failing to offer any testimony or evi-
dence adverse to the State’s defense or present any witnesses
“who may have spoken to his client’s positive traits or lack of
propensity to commit acts like those alleged at trial.”5
[3-5] 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 perform­
ance which is known to the defendant or is apparent from
the record, otherwise, the issue will be procedurally barred
in a subsequent postconviction proceeding.6 The fact that an
ineffective assistance of counsel claim is raised on direct
appeal does not necessarily mean that it can be resolved.
4
See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
5
Brief for appellant at 12.
6
State v. Mrza, supra note 1.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. SINKEY
Cite as 303 Neb. 345
The determining factor is whether the record is sufficient to
adequately review the question.7 In order to avoid a procedural
bar to a future postconviction proceeding, a claim of inef-
fective assistance of counsel must be presented 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 be able to recognize whether the claim was brought
before the appellate court.8
We conclude that Sinkey failed to allege ineffective assist­
ance of counsel with sufficient particularity. Sinkey alleges that
his defense counsel’s performance was inadequate, but he fails
to include allegations relating what counsel could have argued
or done differently in Sinkey’s defense. Sinkey also alleges
that his counsel only “lightly” cross-examined the detective
and the victim’s mother,9 but again, he fails to detail what
questions should have been asked that would have contributed
to his defense.
In sum, Sinkey alleged only neutral facts about the evidence
presented at trial and the actions of defense counsel and then
concluded that defense counsel’s performance was deficient.
Because Sinkey did not allege specific instances of counsel’s
ineffectiveness, there is no record upon which this court could
decide these allegations. Accordingly, we conclude that Sinkey
failed to sufficiently allege ineffective assistance of counsel.
CONCLUSION
The judgment of the district court is affirmed.
A ffirmed.
7
Id.
8
See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
9
Brief for appellant at 15.