State v. Hibler , 302 Neb. 325 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/17/2019 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. HIBLER
Cite as 302 Neb. 325
State of Nebraska, appellee, v.
David J. Hibler, Jr., appellant.
___ N.W.2d ___
Filed March 1, 2019. No. S-18-005.
1. Constitutional Law: Statutes: Appeal and Error. The constitutionality
of a statute presents a question of law, which an appellate court indepen-
dently reviews.
2. Rules of Evidence: Appeal and Error. An appellate court reviews
for abuse of discretion a trial court’s evidentiary rulings on relevance,
whether the probative value of evidence is substantially outweighed by
the danger of unfair prejudice, and the sufficiency of a party’s founda-
tion for admitting evidence.
3. 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.
4. 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.
5. Constitutional Law: Statutes: Presumptions. A statute is presumed
to be constitutional, and all reasonable doubts are resolved in favor of
its constitutionality.
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STATE v. HIBLER
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6. Constitutional Law: Statutes: Waiver. The proper procedure for rais-
ing a facial constitutional challenge to a criminal statute is to file a
motion to quash, and all defects not raised in a motion to quash are
taken as waived by a defendant pleading the general issue.
7. Constitutional Law: Statutes: Standing: Proof. Standing to challenge
the constitutionality of a statute under the federal or state Constitution
depends upon whether one is, or is about to be, adversely affected by
the language in question; to establish standing, the contestant must show
that as a consequence of the alleged unconstitutionality, the contestant
is, or is about to be, deprived of a protected right.
8. Constitutional Law: Equal Protection. The Nebraska Constitution and
the U.S. Constitution have identical requirements for equal protection
challenges. The Equal Protection Clause requires the government to
treat similarly situated people alike.
9. Equal Protection. The Equal Protection Clause does not forbid clas-
sifications; it simply keeps governmental decisionmakers from treating
differently persons who are in all relevant respects alike.
10. Legislature: Equal Protection. If a legislative classification involves
either a suspect class or a fundamental right, courts will analyze the
classification with strict scrutiny.
11. Equal Protection: Words and Phrases. A suspect class is one that has
been saddled with such disabilities or subjected to such a history of pur-
poseful unequal treatment as to command extraordinary protection from
the majoritarian political process.
12. Equal Protection. Age itself is not a suspect classification for equal
protection purposes.
13. ____. When a classification created by state action does not jeopardize
the exercise of a fundamental right or categorize because of an inher-
ently suspect characteristic, the Equal Protection Clause requires only
that the classification rationally further a legitimate state interest.
14. Equal Protection: Proof. Under the rational basis test, whether an equal
protection claim challenges a statute or some other government act or
decision, the burden is upon the challenging party to eliminate any rea-
sonably conceivable state of facts that could provide a rational basis for
the classification.
15. Equal Protection. Under the rational basis test, the Equal Protection
Clause is satisfied as long as (1) there is a plausible policy reason for
the classification, (2) the legislative facts on which the classification is
based may rationally have been considered to be true by the governmen-
tal decisionmaker, and (3) the relationship of the classification to its goal
is not so attenuated as to render the distinction arbitrary or irrational.
16. Constitutional Law: Criminal Law: Sentences: Legislature: Courts.
The Legislature is clothed with the power of defining crimes and
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STATE v. HIBLER
Cite as 302 Neb. 325
misdemeanors and fixing their punishment; and its discretion in this
respect, exercised within constitutional limits, is not subject to review
by the courts.
17. Constitutional Law: Criminal Law: Sentences. With regard to the
mandatory minimum sentence, the guarantees of due process and equal
protection, as well as the prohibition against cruel and unusual punish-
ment, do not require individual sentencing in noncapital cases.
18. Witnesses: Impeachment. As a general rule, a witness makes an incon-
sistent or contradictory statement if the witness refuses to either deny or
affirm that he or she made the prior statement, or if the witness answers
that he or she does not remember whether he or she made the prior
statement.
19. Evidence: Hearsay. Prior extrajudicial statements of a witness may be
received into evidence for the limited purpose of assisting the jury in
ascertaining the credibility of the witness, but unless they are otherwise
admissible, they may not be considered as substantive evidence of the
facts declared in the statements.
20. Trial: Witnesses: Impeachment. It is sometimes difficult to deter-
mine whether a question attempts impeachment or rises to the level
of a charge of recent fabrication, and it is not an abuse of discretion
to allow the question where the impeachment is susceptible to either
interpretation.
21. Hearsay: Time. A declarant’s consistent out-of-court statements are
permitted to rebut a charge of recent fabrication, improper influence, or
improper motive when those statements were made before the charge of
recent fabrication, improper influence, or improper motive.
22. Sexual Assault: Proof: Words and Phrases. The slightest intrusion
into the genital opening is sufficient to constitute penetration, and such
element may be proved by either direct or circumstantial evidence.
23. 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.
24. 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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STATE v. HIBLER
Cite as 302 Neb. 325
25. Effectiveness of Counsel: Records: Appeal and Error. On direct
appeal, allegations of how the defendant was prejudiced by trial coun-
sel’s allegedly deficient conduct are unnecessary in an appellate court
determination of whether the trial record supports the assigned error.
26. ____: ____: ____. 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.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
David J. Hibler, Jr., appeals his convictions and sentences
in the district court for Lancaster County, following a jury
trial, for first degree sexual assault of a child, incest with a
person under 18 years of age, and third degree sexual assault
of a child. On appeal, Hibler argues that first degree sexual
assault of a child under Neb. Rev. Stat. § 28-319.01(1)(a) and
(2) (Reissue 2016) is unconstitutional, because the statute sub-
jects the defendant to a mandatory minimum sentence based
solely on the ages of the victim and perpetrator. We conclude
that the age classifications defining sexual assault of a child
in § 28-319.01(1)(a) and associated mandatory sentence in
§ 28-319.01(2) are not unconstitutional. We also determine
that the district court did not abuse its discretion when it made
various evidentiary rulings and that the evidence was sufficient
to support Hibler’s convictions. We reject several of Hibler’s
claims of ineffectiveness of trial counsel but do not reach the
merits of various other ineffectiveness claims. For the reasons
explained below, we affirm.
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STATE v. HIBLER
Cite as 302 Neb. 325
II. STATEMENT OF FACTS
The State charged Hibler by information with one count of
first degree sexual assault of a child, § 28-319.01(2); one count
of incest with a person under 18 years of age, Neb. Rev. Stat.
§ 28-703 (Reissue 2016); and one count of third degree sexual
assault of a child, Neb. Rev. Stat. § 28-320.01(3) (Reissue
2016). Before trial, Hibler filed a motion to quash based on his
claim that the provisions of § 28-319.01(2) “violate [Hibler’s]
constitutional rights under the Fifth, Fourteenth and Eighth
Amendment[s] to the United States Constitution and the cor-
relative provisions of the Nebraska Constitution.” At a hearing
on the motion to quash, Hibler’s counsel noted the motion
was being filed pursuant to State v. Stone, 298 Neb. 53, 902
N.W.2d 197 (2017), which states that to preserve a constitu-
tional challenge to the mandatory minimum sentence which
could be imposed, a motion to quash must be filed. The motion
was overruled.
1. Trial
(a) Testimony of J.H.
J.H., the victim, was 13 years old when she testified as the
State’s first witness. J.H. is the oldest of the three biological
children of Hibler and his former wife, A.H. J.H. testified that
she was 11 years old during the events alleged in the informa-
tion. She testified that her parents were still married in 2015,
but she thought they were now divorced.
J.H. testified that Hibler began giving her massages when
she was 11 years old, following a Soap Box Derby win in
2015. Hibler would massage her when they would run and bike
together. Initially, Hibler touched only J.H.’s back and legs
when he massaged her.
J.H. stated that one night when she was 11 years old, Hibler
began to massage her “butt” during a massage in A.H. and
Hibler’s bedroom. J.H. testified that beginning in October
2015 and continuing through January 2016, Hibler touched
her inappropriately more than one time, but less than 10 times.
J.H. believed the inappropriate touching occurred about four or
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STATE v. HIBLER
Cite as 302 Neb. 325
five times. J.H. testified specifically that one incident occurred
at her grandfather’s home, one incident occurred in J.H.’s
bedroom, and the other incidents were in the bedroom Hibler
shared with A.H., J.H.’s mother.
The evidence showed that one of J.H.’s brothers has cancer
and that A.H. would take him out of state once a month for
treatment. J.H. stated A.H. and her brother were out of town
when Hibler massaged her backside. J.H. was lying on her
stomach on Hibler’s bed, and she was not wearing any clothes,
but had a towel over her body.
J.H. testified that another incident occurred during the morn-
ing in J.H.’s room. J.H. had a pain in her chest and Hibler
told her to let him give her a massage. He told her to remove
her bra so he could massage her chest. J.H. indicated that she
stated no but that Hibler stated it “would make it better,” so
J.H. removed her bra. Hibler then massaged her breasts for
possibly 5 or 10 minutes. J.H. was sitting on her bed, and
Hibler was sitting next to her.
J.H. also testified that Hibler touched her genitals multiple
times. Sometime in 2015, J.H. and Hibler were spending the
night at her grandfather’s home in Omaha, Nebraska; J.H.
believed A.H. and her brother were not at the home. J.H. stated
that she was lying on her side while Hibler was massaging
her from behind and that at some point, he put his hand in her
underwear “and started touching [her] vagina.” J.H. described
that it felt like a “swiping motion” and compared it to “when
a girl goes to the bathroom and she takes the toilet paper, she
wipes. She doesn’t like stick it up her vagina, doesn’t like just
. . . pat it. She swipes it and then puts it in the toilet.” J.H.
testified that she could feel his fingers “moving up and down
[her] vagina” and that it lasted a long time. She testified that
she did not tell anyone, because she was scared.
J.H. testified that Hibler also touched her genitals with the
“swiping motion” at the family home in Lincoln, Nebraska.
J.H. thought that it occurred about three times and that it hap-
pened when A.H. and her brothers were out of town for her
brother’s treatment. J.H. described the swiping episodes as
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STATE v. HIBLER
Cite as 302 Neb. 325
follows: she would be half asleep but still aware of her sur-
roundings, then Hibler would put his hand under her underwear
and start touching her vagina in a swiping motion.
J.H. described an incident which occurred with Hibler in
his bedroom during which Hibler asked J.H. to wear a pair of
A.H.’s purple underwear, which tied on the sides. According
to J.H., Hibler was massaging her and then had her put on
the underwear that tied and began massaging her legs. At one
point, Hibler untied the sides of the underwear and massaged
her legs right next to her vagina. Hibler looked at her vagina,
though he did not touch her vagina at that time. J.H. testified
that when Hibler told her to put the underwear on, he had
stated something about them making it “easier.”
J.H. also testified about another incident which occurred in
Hibler’s bedroom in the early morning. J.H. believed that just
she and Hibler were home and that A.H. and her brothers were
probably out of state. During this incident, J.H. was asleep
when Hibler began to massage her. When Hibler touched her,
he performed the swiping motion and also put his hand over
her vagina “like as if his hand were a bowl and he were put-
ting it over [her] vagina.” J.H. testified that Hibler “touched
[her] vagina” and did so “more towards the top of [her] vagina
where there is this thing.” J.H. stated that during the previous
episodes when Hibler was swiping, he would touch the labia,
but “this time it was more towards the top of that” area but that
she did not know the name of the area. When it was just the
swiping motion, J.H. usually could feel just Hibler’s fingers,
but “this time [she] felt his whole hand.” He “touched the top
of [her] vagina” with “maybe two or three fingers,” and “[h]is
fingers were moving.” This continued for between 15 to 30
minutes. J.H. stated that her eyes were closed but that she was
not asleep. J.H. stated that this was the last incident and that it
occurred around December or January. She knew that the inci-
dent did not happen in February.
J.H. testified that, initially, she did not tell anyone about
this last incident, because she was scared and did not know
what would happen to her and her family. However, after
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STATE v. HIBLER
Cite as 302 Neb. 325
her friends realized something was wrong, she met them at
the school playground and told them in February. J.H. asked
her friends not to tell anybody, but the mother of one of her
friends learned of the alleged assaults and called the school.
The principal asked J.H. to come to the office and asked her
some questions. J.H. did not tell A.H. prior to when the police
became involved, because she stated, “I wasn’t sure if she
would believe me or - I actually wanted to wait until we got
a new house, because then I thought at the time, I thought it
would be easier . . . .” She stated that she “tried to tell [A.H.]
There were times, you know, that I would say, let’s go for a
ride, and I would want to tell her. Then I would chicken out
because it is not something that you can walk up to somebody
and say this happened.”
(b) Testimony of A.H.
A.H. testified that Hibler was born in November 1980.
A.H. married Hibler in 2002 and had three biological children
with him. A.H. testified that there were times she went with
her son for his treatments out of state between October 2015
and March 2016. The day visits occurred about once a month
and often on Fridays. In addition, A.H. recalled that there
were two or three other times when she took her son out of
state for treatment and that they spent the night out of state.
On those occasions, Hibler stayed home with J.H. and their
other son.
A.H. testified that J.H. “loved to give pedicures” and that
she liked to give massages and receive them. A.H. testified it
would not have been unusual for Hibler to massage J.H. after
running or stretching. A.H. stated that before the police came
to her workplace on March 31, 2016, to tell her that J.H. had
been interviewed, J.H. had not told her anything regarding
Hibler’s actions.
A.H. testified that she spoke with Hibler in person on sev-
eral occasions about J.H.’s accusations. They also discussed
the trouble in their marriage. According to A.H., Hibler wanted
A.H. to convey to J.H. that Hibler believed J.H.’s recollection
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was a misunderstanding of what had occurred. According to
A.H., Hibler initially admitted touching J.H. on just one occa-
sion. A.H. testified that Hibler stated this event occurred when
he took J.H. home one night; she was asleep, and he did not
want to carry J.H. up the stairs, so he took J.H. to A.H. and
Hibler’s bed. Hibler told A.H. that “he took some melatonin
and rolled over and thought [J.H. was A.H.] and he touched
her.” Hibler stated that “by the time he realized what he had
done, the damage was done,” but that it was only one time and
wondered if A.H. could forgive him and try to make their mar-
riage work.
A.H. testified that Hibler wanted A.H. to encourage J.H. to
change her story and tell the police that she took melatonin
and had some “really bad dreams.” If this became J.H.’s story,
people would believe her, they could still buy the house they
wanted, they could have more children, and they could try to
start over. He urged A.H. to tell J.H. that “it was just a little
mistake and it didn’t have to ruin everything.”
A.H. testified regarding another conversation she had with
Hibler on April 26, 2016, when she and Hibler sat in a truck
and spoke for a “[c]ouple hours maybe.” Hibler initially stated
that they could possibly record the conversation, but then
changed his mind, so A.H. was only able to record about
7 seconds.
In this conversation, Hibler repeated to A.H. what he had
said the night before to the effect that he was sorry and
ashamed, that there was no good excuse for what he had done,
and that there was nothing that he could say or do that would
excuse what had happened. A.H. testified that at this point,
Hibler indicated there had been several episodes which started
around October 2014, when A.H. was at the hospital with
their son. A.H. testified that Hibler told her the first episode
occurred at his father’s home, sometime in October 2014.
Hibler indicated that when J.H. had complained of pain in
her hip flexor, he had rubbed her thighs and her hip, and she
then fell asleep. Hibler described that there was a “little gap”
between J.H.’s underwear and skin and that he put his fingers
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STATE v. HIBLER
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in the gap and felt that “she was wet” and it was “arousing
for him.” A.H. stated Hibler told her he then pulled his hand
back, resumed massaging her thigh and hip but then repeatedly
slipped his fingers under her underwear while J.H. slept. A.H.
testified that Hibler told her that at one point, he gave J.H. a
frontal massage, but that it was really innocent, and that J.H.
was having panic attacks or shortness of breath and would get
a really sharp pain on her side, in response to which Hibler
offered to rub her ribs. Hibler told her that J.H. had taken off
her shirt, but the pain was in the area covered by her sports bra,
so Hibler told her to take the sports bra off, and he just rubbed
her muscles there, but that it was not sexual.
In connection with another incident, Hibler told A.H. that
he and J.H. were home and J.H. asked to sleep in Hibler and
A.H.’s bed, which was not uncommon. J.H. indicated she was
scared and crying, so she slept in their room. A.H. testified
that Hibler stated that either he or J.H. asked for a hug, and
Hibler rolled J.H. on top of him and gave her a hug. Hibler
became aroused, so he put J.H. back on the bed. A.H. testified
that Hibler stated, “He thought something was wrong with him
and he did not know what to do about it.” A.H. stated Hibler
told her he tried watching pornography, including “fake daddy-
daughter porn,” to cure the problem, but that did not help
and in fact made things worse. Hibler stated that J.H. would
sometimes ask for a foot massage, Hibler would work his way
up to the hip, and Hibler would become aroused; he knew it
was wrong. Hibler stated that this pattern became compulsive
for him.
A.H. testified that when she asked Hibler how many epi-
sodes had happened, Hibler told her “probably a handful.” He
said that the last time was probably in January and that it was
different. Regarding this episode, Hibler told A.H. that J.H.
was in A.H. and Hibler’s bedroom and that when Hibler asked
J.H. if she wanted a massage, she said she did. Hibler described
this episode to A.H. as follows: Hibler had J.H. take her clothes
off, “handed her a thong to put on,” and had her lay down on
the bed and put a sheet over her like at a massage parlor. At
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some point after J.H. fell asleep, Hibler put his fingers under
her underwear, but she “wasn’t wet”; he grabbed some “lotion
or goop or lube or something” and put it on her, stroked her
and cupped her genital area, touched her and massaged “the
hole,” and then massaged her clitoris. Hibler indicated to A.H.
that he knew his actions “would make [A.H.] wet, so he was
wondering if that would work” for J.H. Hibler indicated that he
did not know how long his actions lasted, but that ultimately he
“jacked off” and then immediately vomited in a garbage can.
He stated that he realized he had made a “really bad mistake.”
He stated that he did not know what to do, that he tried to talk
to J.H. the next day but that she was not talking to him, and
that he knew something was wrong but did not know how to
approach the subject.
A.H. testified that Hibler asked her to explain to J.H. the
consequences of telling her therapist what Hibler had done,
including what could happen financially to A.H. if Hibler were
to go to jail; that Hibler was not going to get any “help” in
prison; and that if A.H. did go to the police, Hibler “would
never admit to anything, ever.” A.H. testified that she told
Hibler to take a plea so that he could still retain a relationship
with their sons and that Hibler told her he would never admit
to the allegations involving J.H. and that he would try to prove
his innocence.
A.H. stated that sometime in April 2016, she was sorting
laundry with J.H. and that when J.H. saw a pair of A.H.’s
underwear which tied at the sides, J.H. was upset and wanted
to get rid of them.
(c) Testimony of Other Witnesses
The State called several witnesses: police officers, investiga-
tors, a teacher, the principal from J.H.’s school, a psychologist,
and a friend of J.H. The friend testified that J.H. “told us one
of her family members touched her inappropriately and we
asked who and she said she could not say.” She also testified
that J.H. later “whispered in our ears one time during class that
it was her dad.” Trial counsel did not object to this testimony.
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Although J.H. told her friends not to tell anyone, the friend told
her mother, who told the principal of their school.
(d) Hibler’s Defense
Hibler’s defense at trial was generally that A.H. may have
implanted memories of sexual assault in J.H. at a time when
J.H. was vulnerable, because she was experiencing problems at
school, bullying, mental health issues, and estrangement from
A.H. In addition, her brother, who had cancer, had become
the center of attention. There was evidence that A.H. and J.H.
watched a movie about child sexual abuse, and Hibler claimed
that A.H. used this viewing as a vehicle to plant the idea in
J.H.’s mind that she, too, had been sexually assaulted.
Hibler highlighted the fact that J.H. did not initially come
forward on her own about the alleged assaults and told her
friends not to tell anybody. Hibler told the jury that A.H. and
Hibler were having trouble in their marriage and that A.H. had
filed for divorce, claiming Hibler had confessed to her. Hibler
believes that this purported confession would be used by A.H.
as leverage to gain custody of the children and overcome nega-
tive facts about A.H.’s life.
Hibler’s father testified on Hibler’s behalf. He testified that
Hibler and J.H. never stayed at his home alone in the entire
time he lived at the house and that “[i]t’s always been the
whole family.”
2. Verdict and Sentencing
On October 27, 2017, a jury found Hibler guilty of first
degree sexual assault of a child, incest with a person under 18
years of age, and third degree sexual assault of a child. The
district court imposed sentences on December 20. As to the
conviction of first degree sexual assault of a child, a Class IB
felony, Hibler received a sentence of 20 to 25 years’ imprison-
ment. With regard to the conviction of incest with a person
under 18 years of age, a Class IIA felony, Hibler received
a sentence of 18 to 20 years’ imprisonment. With regard to
the conviction of third degree sexual assault of a child, a
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Class IIIA felony, Hibler received a sentence of 2 to 3 years’
imprisonment.
The district court ordered that Hibler serve the sentences
concurrently with one another, and Hibler received 53 days’
credit toward his sentences.
Hibler appealed, and gave notice under Neb. Ct. R. App. P.
§ 2-109(E) (rev. 2014) that his appeal includes a challenge to
the constitutionality of § 28-319.01.
III. ASSIGNMENTS OF ERROR
Hibler claims, summarized and restated, that the district
court erred when it rejected his constitutional challenge to
§ 28-319.01. He also claims that the district court made sev-
eral erroneous evidentiary rulings, including admitting diary
entries of J.H.; excluding certain text messages; and prevent-
ing Hibler from examining A.H. concerning her military dis-
charge, employment, and mental health history. Hibler claims
that the State did not present sufficient evidence to support
the convictions of first degree sexual assault of a child and
incest, because evidence of the element of penetration was
lacking. Hibler claims his trial counsel was ineffective. With
regard to sentencing, as noted, Hibler claims that the manda-
tory minimum sentence regarding first degree sexual assault
of a child where the victim is under 12 years old pursuant to
§ 28-319.01(2) is unconstitutional.
IV. STANDARDS OF REVIEW
[1] The constitutionality of a statute presents a question of
law, which we independently review. State v. Stone, 298 Neb.
53, 902 N.W.2d 197 (2017).
[2] An appellate court reviews for abuse of discretion a trial
court’s evidentiary rulings on relevance, whether the probative
value of evidence is substantially outweighed by the danger of
unfair prejudice, and the sufficiency of a party’s foundation for
admitting evidence. State v. Tucker, 301 Neb. 856, 920 N.W.2d
680 (2018).
[3] In reviewing a criminal conviction for a sufficiency of the
evidence claim, whether the evidence is direct, circumstantial,
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or a combination thereof, the standard is the same: An appel-
late 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. Id.
[4] 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.
V. ANALYSIS
[5] We must first consider Hibler’s facial constitutional
challenge focused on the statutory elements of first degree
sexual assault of a child under which he was convicted,
§ 28-319.01(1)(a), and, in particular, the associated manda-
tory minimum sentence, § 28-319.01(2). A statute is presumed
to be constitutional, and all reasonable doubts are resolved in
favor of its constitutionality. State v. Harris, 284 Neb. 214, 817
N.W.2d 258 (2012).
1. Constitutional Framework
[6] We have held that the proper procedure for raising a
facial constitutional challenge to a criminal statute is to file
a motion to quash, and all defects not raised in a motion to
quash are taken as waived by a defendant pleading the gen-
eral issue. Stone, supra. Hibler filed a motion to quash that
alleged that § 28-319.01(2) violates his “constitutional rights
under the Fifth, Fourteenth and Eighth Amendment[s] to the
United States Constitution and the correlative provisions of the
Nebraska Constitution.” His motion was overruled.
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2. Constitutional Challenge:
Equal Protection
Hibler argues that § 28-319.01 is unconstitutional on its face
because its violation imposes a substantially harsher sentence
than a violation of other first degree sexual assault statutes
solely based on the ages of the victim and the offender. Our
analysis of this age classification focuses on the propriety of
the age of the victim because that analysis is dispositive of
Hibler’s claim.
Section 28-319.01 provides:
(1) A person commits sexual assault of a child in the
first degree:
(a) When he or she subjects another person under
twelve years of age to sexual penetration and the actor is
at least nineteen years of age or older; or
(b) When he or she subjects another person 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.
(2) Sexual assault of a child in the first degree is a
Class IB felony with a mandatory minimum sentence of
fifteen years in prison for the first offense.
Hibler’s primary constitutional challenge to § 28-319.01
is that its age classifications violate the Equal Protection
Clause of the 14th Amendment and article I, § 3, of the
Nebraska Constitution. Hibler maintains that the ages provided
in § 28-319.01(1)(a) are arbitrary and not supported by a plau-
sible policy reason or rational basis.
[7] Although Hibler addresses other provisions of
§ 28-319.01 containing age classifications, we consider only
his challenge to § 28-319.01(1)(a), and in particular, the age of
the victim, because he has standing to challenge only the stat-
ute that was relevant to the prosecution of his case. Standing
to challenge the constitutionality of a statute under the federal
or state Constitution depends upon whether one is, or is about
to be, adversely affected by the language in question; to estab-
lish standing, the contestant must show that as a consequence
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of the alleged unconstitutionality, the contestant is, or is about
to be, deprived of a protected right. State v. Harris, 284 Neb.
214, 817 N.W.2d 258 (2012).
[8,9] The Nebraska Constitution and the U.S. Constitution
have identical requirements for equal protection challenges.
Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d
892 (2016). The Equal Protection Clause requires the gov-
ernment to treat similarly situated people alike. Lingenfelter,
supra. It does not forbid classifications; it simply keeps gov-
ernmental decisionmakers from treating differently persons
who are in all relevant respects alike. Id.
In support of his equal protection challenge, Hibler refers
us to other sexual assault statutes. However, he identifies
no other sexual assault statute where the victim is under 12
years of age. Thus, for example, Hibler compares first degree
sexual assault of a child under § 28-319.01 to first degree
sexual assault under § 28-319(1)(c), the latter of which does
not carry a mandatory minimum sentence. But because first
degree sexual assault under § 28-319(1)(c) is defined in part
as subjecting a victim to sexual penetration when the victim is
at least 12 years of age but less than 16 years of age, a viola-
tion of § 28-319(1)(c) is simply a different crime from the one
of which Hibler stands convicted. Hibler’s reference to other
statutes does not inform our analysis.
[10-12] If a legislative classification involves either a sus-
pect class or a fundamental right, courts will analyze the clas-
sification with strict scrutiny. Lingenfelter, supra. A suspect
class is one that has been saddled with such disabilities or
subjected to such a history of purposeful unequal treatment
as to command extraordinary protection from the majoritarian
political process. Id. Hibler does not contend he is a member of
a suspect class. The classifications Hibler challenges are based
on age, and age itself is not a suspect classification for equal
protection purposes. See State v. Senters, 270 Neb. 19, 699
N.W.2d 810 (2005).
[13] When a classification created by state action does not
jeopardize the exercise of a fundamental right or categorize
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because of an inherently suspect characteristic, the Equal
Protection Clause requires only that the classification rationally
further a legitimate state interest. Lingenfelter, supra.
[14,15] Under the rational basis test, whether an equal pro-
tection claim challenges a statute or some other government act
or decision, the burden is upon the challenging party to elimi-
nate any reasonably conceivable state of facts that could pro-
vide a rational basis for the classification. Id. Under this most
relaxed and tolerant form of judicial scrutiny of equal protec-
tion claims, the Equal Protection Clause is satisfied as long as
(1) there is a plausible policy reason for the classification, (2)
the legislative facts on which the classification is based may
rationally have been considered to be true by the governmental
decisionmaker, and (3) the relationship of the classification to
its goal is not so attenuated as to render the distinction arbi-
trary or irrational. Lingenfelter, supra.
With these three considerations in mind, we review the leg-
islative history of § 28-319.01. The legislative history shows
that the bill’s sponsor was concerned about the lasting harm to
victims of sexual assault in situations where the victim is very
young. The introducing senator testified before the Committee
on Judiciary that
[i]n 2005, of the 97 people in prison for first-degree sex-
ual assault, 23 of them had assaulted a child under the age
of 12. Nine years is the average length of their incarcera-
tion. By creating the new offenses, we are able to enhance
the penalties for the most heinous crimes.
Judiciary Committee Hearing, L.B. 1199, 99th Leg., 2d Sess.
2-3 (Feb. 16, 2006). Another senator speaking during the floor
debate stated that “[i]f you offend against a child, it should
put you in a secure environment, away from the rest of your
community, for a very long time, and that is the part of the
reform that makes sense.” Floor Debate, L.B. 1199, Judiciary
Committee, 99th Leg., 2d Sess. 11590 (Mar. 27, 2006).
It is reasonable to conclude that harsher punishments for
those who commit first degree sexual assault against young
children would further the policy and goal of p­ rotecting a
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vulnerable group by preventing convicted perpetrators from
reoffending.
In 2009, the Legislature amended § 28-319.01 to add a
provision that an individual over the age of 25 who subjected
a person at least 12 years of age but less than 16 years of age
to sexual penetration was guilty of first degree sexual assault
of a child and subject to a mandatory minimum sentence. See
§ 28-319.01(1)(b). Although this amendment did not affect
Hibler, whose victim was under age 12, we note that state-
ments by legislators again demonstrated, inter alia, a concern
to protect young people under age 16. See Judiciary Committee
Hearing, L.B. 15, 101st Leg., 1st Sess. 3 (Mar. 11, 2009).
[16] Although the age-based classifications defining first
degree sexual assault of a child could have been drawn dif-
ferently, the Legislature is clothed with the power of defining
crimes and misdemeanors and fixing their punishment; and
its discretion in this respect, exercised within constitutional
limits, is not subject to review by the courts. State v. Stratton,
220 Neb. 854, 374 N.W.2d 31 (1985). Our review of the leg-
islative history shows that the age classifications to which
Hibler is subject in § 28-319.01(1)(a) are rationally related
to plausible policy reasons considered by lawmakers and that
the relationship of the classifications to their goals are not so
attenuated as to render the distinction arbitrary or irrational.
Hibler has not carried his burden to eliminate any reasonably
conceivable state of facts that could provide a rational basis
for the age classification in § 28-319.01(1)(a) and its logically
associated mandatory minimum sentence in § 28-319.01(2).
See Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881
N.W.2d 892 (2016).
3. Constitutional Challenges:
Due Process and Cruel and
Unusual Punishment
Although Hibler frames his constitutional challenge as a
violation of equal protection, his motion to quash cites other
constitutional provisions, and for completeness, we briefly
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comment on them. Hibler’s motion to quash asserted that
§ 28-319.01 violates the Due Process Clause of the 5th and
14th Amendments to the U.S. Constitution and article I,
§ 3, of the Nebraska Constitution, as well as the Cruel and
Unusual Punishment Clause of the 8th Amendment to the U.S.
Constitution, as incorporated and applied to the states through
the 14th Amendment. See Furman v. Georgia, 408 U.S. 238,
92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). We find these chal-
lenges to be without merit.
[17] As the legislative history showed, based on the policy,
goals, and facts evinced therein, the Legislature required more
severe punishments for first degree sexual assault of a young
child, because it concluded it was a more serious crime. As
noted above, the Legislature is empowered to define crimes,
and in fixing their punishments, it need not select the least
severe penalties. Stratton, supra. With regard to the mandatory
minimum sentence, it is well settled that the guarantees of due
process and equal protection, as well as the prohibition against
cruel and unusual punishment, do not require individual sen-
tencing in noncapital cases. See, e.g., State v. Ferman-Velasco,
333 Or. 422, 41 P.3d 404 (2002); Campbell v. State, 268 Ga.
44, 485 S.E.2d 185 (1997); People v Hall, 396 Mich. 650, 242
N.W.2d 377 (1976).
It is not unconstitutional to prescribe a more severe pun-
ishment for a defendant who perpetrates sexual assault
against a child under the age of 12. The age classifications in
§ 28-319.01(1)(a) and the associated mandatory minimum sen-
tence in § 28-319.01(2) are not unconstitutional.
4. Evidentiary Rulings
We next consider Hibler’s assignments of error regarding
evidentiary rulings made by the district court.
(a) A.H.’s Military Discharge, Previous
Employment as an Exotic Dancer,
and Mental Health History
Hibler claims that the district court abused its discretion
when it sustained the State’s motion in limine which prevented
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Hibler from questioning A.H. about the facts of her life, includ-
ing her other than honorable discharge from the military, men-
tal health history, substance abuse, and previous employment
as an exotic dancer. The district court found this line of ques-
tioning was not relevant and lacked any probative value. Hibler
argues that cross-examination of A.H. on these matters was
relevant, because it would have revealed that she was an unfit
parent. He contends that her testimony would have strength-
ened his defense theory that she desired to win sole custody
of their children in a future divorce proceeding by planting the
sexual assault story in J.H.’s mind.
The personal issues excluded by the district court were not
relevant to A.H.’s testimony about Hibler’s confession, nor did
the ruling hinder Hibler’s defense. Hibler called A.H.’s cred-
ibility into question at trial and was able to pursue his defense
by questioning her about the movie she watched with J.H.,
featuring a child struggling to report a sexual assault; about
the “curious tim[ing]” of her filing for divorce just before she
alleged Hibler confessed the sexual assaults; and about other
parts of her life that he felt made him a stronger candidate for
sole custody of their children. Hibler has not shown that the
district court abused its discretion when it sustained the State’s
motion in limine regarding cross-examination of A.H.
(b) Text Messages From A.H.
Hibler claims the district court erred when it sustained the
State’s objection to exhibit 29 on the basis of hearsay and
unfair prejudice. Exhibit 29 contained copies of text messages
between A.H. and Hibler dated May 8, 2016. The data included
a string of messages between A.H. and Hibler which were
exchanged approximately 10 days after Hibler had allegedly
admitted his conduct with J.H. Hibler contends that because
the messages failed to refer to a confession, the messages are
inconsistent with A.H.’s testimony that Hibler had previously
confessed. Hibler asserts that the messages or portions thereof
should have been admissible as impeachment of A.H. We reject
Hibler’s argument.
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Hearsay is a statement, other than one made by the declar-
ant while testifying at a trial or hearing, offered in evidence
to prove the truth of the matter asserted. Neb. Rev. Stat.
§ 27-801(3) (Reissue 2016). Hearsay is not admissible unless a
specific exception to the hearsay rule applies. Neb. Rev. Stat.
§ 27-802 (Reissue 2016).
[18,19] Hibler argues that the statements were not offered
for the truth of the matters asserted but instead were prop-
erly proffered to attack the credibility of A.H. by showing an
inconsistency between her testimony at trial and her text mes-
sages. As a general rule, a witness makes an inconsistent or
contradictory statement if the witness refuses to either deny or
affirm that he or she made the prior statement, or if the witness
answers that he or she does not remember whether he or she
made the prior statement. State v. Dominguez, 290 Neb. 477,
860 N.W.2d 732 (2015). We have indicated that prior extra­
judicial statements of a witness may be received into evidence
for the limited purpose of assisting the jury in ascertaining the
credibility of the witness, but unless they are otherwise admis-
sible, they may not be considered as substantive evidence of
the facts declared in the statements. See id.
In sustaining the State’s objection based on hearsay, the
district court stated it did not see anything in A.H.’s responses
that would be appropriate for impeachment purposes and, in
addition, found them to be more prejudicial than probative.
We have reviewed the record, and it shows that the messages
were not inconsistent with A.H.’s trial testimony. Some of
the messages in question from A.H. to Hibler include: “Just
[t]ell the truth”; “Stop trying to save your own skin”; “Trust
is earned but not by lies and secrets”; “You did this, you
made the choices”; and “Stop playing the victim and tell the
truth.” Contrary to Hibler’s characterization, the messages
did not serve to impeach or rebut A.H.’s testimony regarding
Hibler’s purported admission. The messages are hearsay, and
the trial court did not err when it sustained the State’s hear-
say exception to exhibit 29 and excluded the text messages in
their entirety.
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(c) Diary of J.H.
Hibler claims that the district court erred when, following
cross-examination of J.H., it admitted certain of J.H.’s diary
entries written before she disclosed the alleged abuse at a child
advocacy center interview. The district court reasoned that the
diary entries were admissible to rebut a charge of recent fab-
rication. Hibler contends that because he did not charge J.H.
with recent fabrication or improper influence or motive, the
diary entries were hearsay and not within an exception to the
hearsay rule. We reject this assignment of error.
As discussed above, hearsay is not admissible unless a
specific exception to the hearsay rule applies. See § 27-802.
However, statements are not hearsay if they are consistent
with the declarant’s testimony and are offered to rebut an
express or implied charge against the declarant of recent
fabrication, improper influence, or improper motive under
§ 27-801(4)(a)(ii).
[20] Here, Hibler contends that although he sought to
impeach J.H.’s testimony by attacking her credibility, such
approach did not rise to an implied or express charge of recent
fabrication. We have recognized that it is sometimes difficult
to determine whether a question attempts impeachment or
rises to the level of a charge of recent fabrication and that it
is not an abuse of discretion to allow the question where the
impeachment is susceptible to either interpretation. See State
v. Buechler, 253 Neb. 727, 572 N.W.2d 65 (1998). Here, the
district court believed there had been an express or implied
charge of recent fabrication, improper influence or motive,
such that some of the statements as redacted were admissible
hearsay. We do not find this determination to be an abuse
of discretion.
[21] We have reviewed the record and are mindful of the
dates attributed to the diary entries vis-a-vis Hibler’s theory of
events. We permit a declarant’s consistent out-of-court state-
ments to rebut a charge of recent fabrication, improper influ-
ence, or improper motive when those statements were made
before the charge of recent fabrication, improper influence,
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or improper motive. See State v. Morris, 251 Neb. 23, 554
N.W.2d 627 (1996). Hibler’s defense at trial was generally that
A.H. had suggested the sexual abuse claim to J.H. as a story
J.H. would tell to her friends to gain attention. The entries from
J.H.’s diary located on her tablet computer pertained to her
state of mind regarding her approach to disclosing the alleged
abuse to people around her. They were made before A.H.’s
alleged suggestions. The diary rebutted Hibler’s argument that
J.H.’s report of sexual assault was recently fabricated.
The trial court did not abuse its discretion when it admitted
portions of J.H.’s diary to rebut an express or implied charge of
recent fabrication. See § 27-801(4)(a)(ii).
5. Sufficiency of the Evidence
Hibler claims the evidence was not sufficient at trial to
prove that he committed sexual assault of a child in the
first degree or incest with a person under 18 years of age.
Penetration is an element of the offense of sexual assault of a
child in the first degree and incest. §§ 28-319.01 and 28-703.
Hibler notes that J.H. did not explicitly state that Hibler’s
fingers or hand “penetrated” her labia or vagina. However,
taken in the light most favorable to the State, the evidence is
sufficient to establish that penetration, as understood in the
law, occurred.
[22] We have stated that the slightest intrusion into the
genital opening is sufficient to constitute penetration, and such
element may be proved by either direct or circumstantial evi-
dence. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
It is not necessary that the vagina be entered or that the hymen
be ruptured; the entry of the vulva or labia is sufficient. Id.
J.H. did not use the word “penetration” when she testified
at trial, but described acts by Hibler in detail sufficient to
show penetration had occurred. J.H.’s testimony was consist­
ent with the more anatomically informed testimony of A.H.
summarizing J.H.’s reports of the sexual assaults. We have
refused to require that a youthful victim testify about sexual
acts “in vocabulary used by a gynecologist.” State v. Hirsch,
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245 Neb. 31, 47, 511 N.W.2d 69, 80 (1994). A rational jury
could conclude that Hibler’s actions described above in our
statement of facts section were sufficient to prove penetration.
The evidence was sufficient to support the conviction for first
degree sexual assault of a child and incest with a person under
18 years of age.
6. Ineffective Assistance of Counsel
[23,24] Hibler claims that his trial counsel provided ineffec-
tive assistance in several respects. He is represented on direct
appeal by different counsel from the counsel who represented
him during trial. 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 appar-
ent from the record, otherwise, the issue will be procedurally
barred in a subsequent postconviction proceeding. State v.
Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018). 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 dis-
trict court later reviewing a petition for postconviction relief to
recognize whether the claim was brought before the appellate
court. Id.
[25,26] On direct appeal, allegations of how the defendant
was prejudiced by trial counsel’s allegedly deficient conduct
are unnecessary in our determination of whether the trial record
supports the assigned error. State v. Abdullah, 289 Neb. 123,
853 N.W.2d 858 (2014), citing State v. Filholm, 287 Neb. 763,
848 N.W.2d 571 (2014). The fact that an ineffective assistance
of counsel claim is raised on direct appeal does not necessarily
mean that it can be resolved. Golyar, supra. The determining
factor is whether the record is sufficient to adequately review
the question. Id.
Hibler alleges, restated and consolidated, that his trial coun-
sel was ineffective in the following ways:
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(1) failing to object to the testimony of J.H.’s friend
regarding what J.H. told her when they met at the school
playground;
(2) failing to impeach and cross-examine three members of
law enforcement, A.H., and J.H. regarding differences in trial
testimony concerning the processing of J.H.’s tablet computer
and the testimony of some of the law enforcement officers in
their depositions and a police report;
(3) failing to subpoena or move to compel the State to turn
over a Cellebrite report generated during data extraction of the
tablet computer;
(4) failing to engage an independent forensic computer
examiner to review the reports and data extractions performed
on the tablet computer;
(5) failing to mount a foundational challenge to the diary
entries based on a broken chain of custody of the tablet com-
puter, because officers gave conflicting deposition testimony
concerning the tablet;
(6) failing to move for a continuance when the State pro-
duced an approximately 18,000-page Cellebrite report contain-
ing the contents of A.H.’s cell phone on the first day of trial;
(7) failing to investigate or obtain bank records or cross-
examine A.H. on her removal of $2,300 from a joint account
with Hibler just prior to the time A.H. testified that Hibler
made confessions to her;
(8) failing to cross-examine A.H. and J.H. and present evi-
dence of the family’s account with a media service provider
concerning the movie they testified to watching in March 2016
that would show they watched a movie about child sexual
assault prior to J.H.’s disclosure to her friends;
(9) failing to introduce evidence of an episode of a televi-
sion show concerning victims of crimes which the family had
watched and, instead of introducing this evidence or cross-
examining J.H., only asking J.H. if it was one of her favorite
shows, to which she responded, “No”;
(10) failing to cross-examine A.H. or investigate the facts
that the purple underwear which tied on the sides and was
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entered as an exhibit was clothing A.H. wore as an exotic
dancer, that it was stored in a suitcase in a storage room, and
that A.H. would have noticed if Hibler had searched through
the suitcase and brought out the underwear;
(11) failing to cross-examine A.H. and present evidence that
A.H. was discharged from military service because she lied
about her mental health diagnosis on her enlistment forms;
(12) failing to investigate the online relationship A.H. had
with a man she described as living in Hawaii, where such
investigation would have revealed the relationship was signifi-
cant and ongoing;
(13) failing to investigate or adequately cross-examine A.H.
concerning previous efforts to take custody of their children
from Hibler;
(14) failing to investigate and present evidence that J.H.
made a false allegation against A.H.’s uncle in Arizona;
(15) failing to thoroughly investigate or cross-examine wit-
nesses concerning the fact that the father of one of J.H.’s
friends to whom she disclosed the abuse at the playground said
the disclosure happened in March, not February, which infor-
mation was revealed in the Cellebrite report provided to Hibler
on the first day of trial;
(16) failing to subpoena or otherwise obtain records from
the Ronald McDonald House in Kansas City, Missouri, which
would have demonstrated the sexual assaults could not have
occurred as J.H. testified, because A.H. was not in Kansas City
at the times asserted by A.H. and J.H. at trial;
(17) failing to subpoena or investigate witnesses and failing
to cross-examine Hibler’s father when he testified at trial con-
cerning the fact that Hibler almost never drank alcohol;
(18) failing to examine two law enforcement officers regard-
ing the police report that was generated after J.H.’s deposi-
tion in which she testified that the tablet computer had been
returned to her possession and that she agreed not to do any-
thing with it until the completion of the trial;
(19) failing to recall A.H. and J.H. during trial to rebut the
State’s case on matters discussed above;
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(20) representing to the jury during closing arguments that
Hibler might have committed some of the alleged acts even
though Hibler specifically told trial counsel he did not engage
in any sexual touching of J.H.;
(21) advising Hibler not to testify when Hibler informed
trial counsel he did not engage in any sexual touching of J.H.;
(22) failing to cross-examine any of the police officers who
testified as to the reasons for the delay of at least 1 year of the
interviews of the children who were present at the playground
where J.H. initially disclosed the sexual assaults;
(23) failing to cross-examine J.H.’s friend and the principal
regarding who walked J.H. back to her classroom following her
interview with the principal and teacher where police reports
contradict the principal’s testimony concerning who J.H. inter-
acted with in the minutes following the interview; and
(24) failing to subpoena witnesses from the school who
would have testified that J.H. had been caught lying to school
officials about unrelated matters in the time prior to her allega-
tions against Hibler.
We have reviewed the record and have determined that the
record on appeal is sufficient to review and reject claims Nos.
1, 11, 19, and 20 on direct appeal. The remaining claims of
ineffectiveness of trial counsel cannot be resolved on direct
appeal because they implicate matters outside the record, such
as information known or not known to trial counsel and con-
versations between Hibler and trial counsel.
In ineffectiveness claim No. 1, Hibler asserts that his trial
counsel should have objected to testimony by one of J.H.’s
friends to the effect that J.H. disclosed to her and some other
friends at the school playground that someone in her family
was touching her inappropriately. He contends that such objec-
tion would have been sustained and that if the testimony had
been excluded, it would have resulted in a reasonable prob-
ability of a different outcome in his case. We do not agree. J.H.
had already testified that she told her friends at school what
was happening. Hibler was not prejudiced by any failure of his
trial counsel to object to this cumulative testimony.
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In ineffectiveness claim No. 11, Hibler asserts his counsel
was ineffective for failing to cross-examine A.H. and pre­
sent evidence that A.H. was discharged from military service
because she lied about her mental health diagnosis on her
enlistment forms. The record refutes this claim. During the
foundational examination of A.H., the district court heard tes-
timony from A.H. that she did not tell the military about her
mental health history and that she later informed the military
about it to get discharged. After hearing the testimony, the dis-
trict court ruled the information was inadmissible. Hibler’s trial
counsel was not ineffective for refraining from examining A.H.
regarding her mental health and the military where the district
court had ruled such evidence was inadmissible.
In ineffectiveness claim No. 19, Hibler asserts his trial
counsel was deficient for not recalling A.H. and J.H. to testify
during trial to rebut the State’s case. He does not offer what he
believes the testimony of A.H. and J.H. would have been and
why it was deficient to not recall them. This claim has not been
stated with sufficient particularity.
In ineffectiveness claim No. 20, Hibler asserts that his trial
counsel represented to the jury that Hibler might have com-
mitted some of the alleged acts even though Hibler had told
his counsel that he did not engage in any sexual touching of
J.H. Hibler does not direct us to any examples of trial coun-
sel’s purportedly making “admissions” on Hibler’s behalf, and
we find none. This claim is refuted by the record.
VI. CONCLUSION
For the reasons stated above, in this direct appeal from a
jury trial, we reject Hibler’s facial state and federal constitu-
tional challenges to the age classifications defining first degree
sexual assault of a child and the corresponding mandatory
sentence in § 28-319.01(1)(a) and (2). We conclude that the
district court did not abuse its discretion with regard to the
evidentiary rulings challenged by Hibler. The evidence at trial
was sufficient to establish the element of sexual penetration
to support Hibler’s convictions for sexual assault of a child in
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the first degree and incest with a person under 18 years of age.
See §§ 28-319.01 and 28-703. Finally, the record is insufficient
to resolve the majority of Hibler’s claims of ineffectiveness of
trial counsel on direct appeal. However, we review and reject
certain of these claims as described above. We affirm Hibler’s
convictions and sentences for first degree sexual assault of a
child, incest with a person under 18 years of age, and third
degree sexual assault of a child.
A ffirmed.
Stacy, J., concurring.
I agree with the majority’s analysis and holding, including
its careful application of rational basis scrutiny to analyze the
equal protection challenge presented here. I write separately to
emphasize something the majority opinion does not do: apply a
threshold “similarly situated” test.
That is significant, because many of our prior opinions
describe a threshold showing that a litigant must satisfy before
a court will engage in constitutional scrutiny of an equal pro-
tection claim.1 As recently as 2015, we described the threshold
showing this way:
The initial inquiry in an equal protection analysis is
whether the challenger is similarly situated to another
group for the purpose of the challenged government
action. Absent this threshold showing, there is not a
1
See, State v. Loyuk, 289 Neb. 967, 857 N.W.2d 833 (2015); Sherman T. v.
Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013); State v. Harris, 284 Neb.
214, 817 N.W.2d 258 (2012); State v. Rung, 278 Neb. 855, 774 N.W.2d
621 (2009); In re Interest of J.R., 277 Neb. 362, 762 N.W.2d 305 (2009);
Henly v. Neth, 271 Neb. 402, 712 N.W.2d 251 (2006); In re Interest of
Phoenix L., 270 Neb. 870, 708 N.W.2d 786 (2006), disapproved in part
on other grounds, In re Interest of Destiny A. et al., 274 Neb. 713, 742
N.W.2d 758 (2007); Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003);
Benitez v. Rasmussen, 261 Neb. 806, 626 N.W.2d 209 (2001); Bauers v.
City of Lincoln, 255 Neb. 572, 586 N.W.2d 452 (1998); Gramercy Hill
Enters. v. State, 255 Neb. 717, 587 N.W.2d 378 (1998); DeCoste v. City of
Wahoo, 255 Neb. 266, 583 N.W.2d 595 (1998); State v. Atkins, 250 Neb.
315, 549 N.W.2d 159 (1996).
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viable equal protection claim. In other words, dissimilar
treatment of dissimilarly situated persons does not violate
equal protection rights.2
This court first applied the threshold “similarly situated” test
in the 1996 case of State v. Atkins.3 There, this court was con-
sidering whether the Equal Protection Clause was violated by
the different statutory methods used to calculate good time for
inmates housed in state prisons4 as compared to those housed
in county jails.5 This court began its analysis by reciting a
principle recognized by the U.S. Supreme Court: “As a general
matter, the Equal Protection Clause requires the government
to treat similarly situated people alike.”6 We then adopted a
new principle articulated by the U.S. Eighth Circuit Court
of Appeals in Klinger v. Department of Corrections7: “[T]he
dissimilar treatment of dissimilarly situated persons does not
violate equal protection rights.”8 We also adopted the threshold
test applied by the majority in Klinger and announced:
[T]he initial inquiry in an equal protection analysis
focuses on whether one has demonstrated that one was
treated differently than others similarly situated. Absent
this threshold showing, one lacks a viable equal protec-
tion claim. . . .
If one can make this threshold showing, the inquiry
then shifts to whether the legislation at issue can survive
judicial scrutiny.9
2
Loyuk, supra note 1, 289 Neb. at 978, 857 N.W.2d at 844.
3
Atkins, supra note 1.
4
See Neb. Rev. Stat. § 83-1,107 (Cum. Supp. 2018).
5
See Neb. Rev. Stat. § 47-502 (Reissue 2010).
6
Atkins, supra note 1, 250 Neb. at 320, 549 N.W.2d at 163, citing Cleburne
v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed.
2d 313 (1985).
7
Klinger v. Department of Corrections, 31 F.3d 727 (8th Cir. 1994).
8
Atkins, supra note 1, 250 Neb. at 320, 549 N.W.2d at 163.
9
Id. at 320-21, 549 N.W.2d at 163 (citation omitted).
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In Atkins, we concluded it was unnecessary to reach the mer-
its of the equal protection claim because we determined, as a
threshold matter, that inmates in state prisons were not simi-
larly situated to inmates in county jails.
Although the adoption in Klinger of a threshold similarly
situated test has been criticized by judges10 and commenta-
tors11 as undercutting meaningful equal protection analysis,
this court has continued to apply the test to equal protection
claims in a variety of contexts.12 In many of those cases, we
found the threshold “similarly situated” showing was not
met, and denied the equal protection claim without reach-
ing the merits or engaging in constitutional analysis.13 In
doing so, our application of the threshold “similarly situated”
test effectively foreclosed meaningful equal protection review
altogether by relying on nothing more than factual differences
between two groups. This is not to suggest that factual differ-
ences are irrelevant to the equal protection analysis, but as the
U.S. Supreme Court’s holding in Cleburne v. Cleburne Living
10
See, e.g., Women Prisoners of D.C. Correct. v. D.C., 93 F.3d 910 (D.C. Cir.
1996) (Rogers, Circuit Judge, concurring in part, and in part dissenting);
Klinger, supra note 7 (McMillian, Circuit Judge, dissenting); Varnum v.
Brien, 763 N.W.2d 862, 882 (Iowa 2009) (“[i]n considering whether two
classes are similarly situated, a court cannot simply look at the trait used
by the legislature to define a classification under a statute and conclude a
person without that trait is not similarly situated to persons with the trait”).
11
See, Angie Baker, Note, Leapfrogging over Equal Protection Analysis: The
Eighth Circuit Sanctions Separate and Unequal Facilities for Males and
Females in Klinger v. Department of Corrections, 31 F.3d 727 (8th Cir.
1994), 76 Neb. L. Rev. 371 (1997); Giovanna Shay, Similarly Situated, 18
Geo. Mason L. Rev. 581 (2011).
12
See cases cited supra note 1.
13
See, e.g., In re Interest of Phoenix L., supra note 1 (parents of Indian
children not similarly situated to parents of non-Indian children); Benitez,
supra note 1 (those with unsubstantiated reports of child abuse not
similarly situated to those with court-substantiated reports of child abuse);
Gramercy Hill Enters., supra note 1 (two nursing homes not similarly
situated); Atkins, supra note 1 (county jail inmates and state prison
inmates not similarly situated).
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Center, Inc.14 illustrates, the mere fact that two groups are dif-
ferent from one another does not mean the State can show a
rational basis for treating them differently under the law.
The legal conclusion that two groups are not “similarly situ-
ated” is not one courts should be making as a threshold matter,
as doing so serves only to insulate the challenged classification
from any meaningful equal protection review. If two groups are
not similarly situated, the proper constitutional analysis will
bear that out. The majority opinion illustrates this point.
After reciting the overarching principle that “[t]he Equal
Protection Clause requires the government to treat similarly sit-
uated people alike” the majority proceeds to analyze the equal
protection claim by applying rational basis scrutiny to the age-
based classification being challenged here. Only after complet-
ing this analysis does the majority conclude that Hibler’s equal
protection claim lacks merit.
A threshold “similarly situated” inquiry is a poor substitute
for careful judicial scrutiny of the fit between the State’s inter-
est and the challenged classification. I would like to see this
court expressly disapprove of our prior cases that have recog-
nized a threshold “similarly situated” inquiry in equal protec-
tion cases. But I am encouraged by the fact that the majority
opinion neither cites to nor endorses a threshold “similarly
situated” test, and I therefore concur in all respects.
14
Cleburne, supra note 6.