State v. Filholm ( 2014 )

Nebraska Advance Sheets
STATE v. FILHOLM 763
Cite as 287 Neb. 763
State of Nebraska, appellee, v.
Mark S. Filholm, appellant.
___ N.W.2d ___
Filed March 28, 2014. No. S-12-759.
1. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of
ineffective assistance of counsel is a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. With regard to the questions
of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), an appellate court reviews such legal determinations indepen-
dently of the lower court’s decision.
2. Criminal Law: Evidence: Appeal and Error. In reviewing 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 elements of the crime
beyond a reasonable doubt.
3. Effectiveness of Counsel: 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 pro-
cedurally barred.
4. Effectiveness of Counsel: Records: Appeal and Error. The fact that an inef-
fective 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 suf-
ficient to adequately review the question.
5. Appeal and Error. An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to be considered by an
appellate court.
6. ____. A generalized and vague assignment of error that does not advise an appel-
late court of the issue submitted for decision will not be considered.
7. ____. An argument that does little more than to restate an assignment of error
does not support the assignment, and an appellate court will not address it.
8. Effectiveness of Counsel: Proof: Appeal and Error. An appellant must make
specific allegations of the conduct that he or she claims constitutes deficient per-
formance by trial counsel when raising an ineffective assistance claim on direct
appeal. General allegations that trial counsel performed deficiently or that trial
counsel was ineffective are insufficient to raise an ineffective assistance claim on
direct appeal and thereby preserve the issue for later review.
9. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing.
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10. Effectiveness of Counsel: Postconviction: Appeal and Error. In the context
of direct appeal, like the requirement in postconviction proceedings, mere
conclusions of fact or law are not sufficient to allege ineffective assistance
of counsel.
11. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or
her counsel’s performance was deficient and that this deficient performance actu-
ally prejudiced the defendant’s defense. An appellate court may address the two
prongs of this test, deficient performance and prejudice, in either order.
12. Effectiveness of Counsel: Proof. To show prejudice on a claim of ineffective
assistance of counsel, the defendant must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the proceeding would
have been different.
13. Judgments: Appeal and Error. A correct result will not be set aside merely
because the lower court applied the wrong reasoning in reaching that result.
Petition for further review from the Court of Appeals,
Inbody, Chief Judge, and Irwin and Riedmann, Judges, on
appeal thereto from the District Court for Lancaster County,
Karen B. Flowers, Judge. Judgment of Court of Appeals
affirmed as modified.
Peter K. Blakeslee for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Cassel, J.
I. INTRODUCTION
Mark S. Filholm was convicted and sentenced for first
degree sexual assault. On direct appeal, Filholm raised seven
claims of ineffective assistance of trial counsel. The Nebraska
Court of Appeals found three of his claims to be without merit
for failure to allege prejudice.1 We granted further review
primarily to address whether, on direct appeal, allegations of
prejudice are required to assert claims of ineffective assistance
of trial counsel. Because resolution of such claims turns upon
1
State v. Filholm, No. A-12-759, 2013 WL 4518211 (Neb. App. Aug. 27,
2013) (selected for posting to court Web site).
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STATE v. FILHOLM 765
Cite as 287 Neb. 763
the sufficiency of the record, specific allegations of the defi-
cient conduct are required. But allegations of prejudice are not
necessary on direct appeal. In these three instances, the record
is not sufficient to review the claim. We modify the Court of
Appeals’ decision accordingly, and as so modified, we affirm
the court’s decision.
II. BACKGROUND
The charges against Filholm arose out of the sexual assault
of A.B. in her home in the early morning of June 25, 2011.
The jury returned a verdict finding Filholm guilty of first
degree sexual assault, and he appealed. Although he had been
represented by counsel from the Lancaster County public
defender’s office at trial, Filholm obtained different appel-
late counsel.
On appeal, Filholm claimed that he received ineffective
assistance of counsel at trial in seven respects. He claimed
that his trial counsel was ineffective for failing to (1) consult
and present the testimony of a DNA expert witness and effec-
tively cross-examine the State’s expert witness, (2) obtain
video surveillance footage from a bar and interview two wit-
nesses who could establish his presence at that bar on the
night of the assault, (3) file a motion for new trial alleging
juror misconduct, (4) call witnesses who could explain the
presence of A.B.’s DNA on his fingers, (5) object to improper
refreshing of a witness’ recollection at trial, (6) move for
mistrial when two of the State’s witnesses used the term
“victim,” and (7) file a motion in limine to prevent use of the
term “rape” and take appropriate measures when the term was
used at trial.
The Court of Appeals rejected Filholm’s ineffective assist­
ance of counsel claims. In several instances, the court con-
cluded either that his claims were without merit or that the
record was insufficient for review. However, as to three of
his claims, the court found his allegations “to be insufficient
because he fails to allege how he was prejudiced by his coun-
sel’s performance.”2
2
Id. at *7.
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Filholm further alleged that his conviction was not sup-
ported by sufficient evidence. The Court of Appeals rejected
this claim and affirmed his conviction and sentence.
Filholm petitioned for further review, which we granted. We
directed the parties to file supplemental briefs on the necessary
specificity for allegations of prejudice in ineffective assistance
of counsel claims made on direct appeal. After supplemental
briefs were filed, we heard oral arguments.
III. ASSIGNMENTS OF ERROR
Filholm assigns, reordered, that the Court of Appeals erred
in (1) finding that he was not denied effective assistance of
counsel and (2) finding that his conviction was supported by
sufficient evidence.
IV. STANDARD OF REVIEW
[1] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact.3 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.4 With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington,5 an appellate court
reviews such legal determinations independently of the lower
court’s decision.6
[2] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion 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 favor-
able to the prosecution, any rational trier of fact could have
3
State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
4
Id.
5
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
6
Davlin, supra note 3.
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STATE v. FILHOLM 767
Cite as 287 Neb. 763
found the essential elements of the crime beyond a reason-
able doubt.7
V. ANALYSIS
1. Ineffective Assistance
of Counsel
[3] Filholm assigns that the Court of Appeals erred in reject-
ing his ineffective assistance claims, which he was required
to raise on direct appeal. When a defendant’s trial counsel is
different from his or her counsel on direct appeal, the defend­
ant 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 proce-
durally barred.8 Although Filholm suggested at oral argument
that we should abandon this rule, we decline to do so. Thus,
because Filholm obtained new counsel on direct appeal, he was
required to raise those claims of ineffective assistance known
to him or apparent from the record in order to preserve them
for review.
As noted above, Filholm alleged that his trial counsel
was ineffective in seven ways. The Court of Appeals found
that three of these claims lacked merit for failure to allege
prejudice.
We granted further review primarily to address whether, on
direct appeal, allegations of prejudice are required to assert
claims of ineffective assistance of trial counsel. The proposi-
tion that, on direct appeal, an appellant is required to allege
prejudice when claiming ineffective assistance of trial counsel
appears to have originated from the Court of Appeals’ holding
in State v. Derr.9
In Derr, David A. Derr’s direct appeal assigned as error
several general allegations of ineffective assistance of trial
counsel. Derr’s brief confessed that it presented no argument,
but merely asserted that the record was insufficient to address
the claims. The court’s opinion stated that “Derr [did] not
7
State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).
8
State v. Ramirez, 284 Neb. 697, 823 N.W.2d 193 (2012).
9
State v. Derr, 19 Neb. Ct. App. 326, 809 N.W.2d 520 (2011).
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768 287 NEBRASKA REPORTS
allege how any of trial counsel’s actions prejudiced him.”10
But the opinion also stated that Derr “failed to allege that any
of counsel’s actions prejudiced him or, stated another way,
did not sufficiently allege his ineffective assistance of counsel
claims.”11 The Court of Appeals concluded that Derr’s failure
“constrained [it] to find that Derr’s assertions of ineffective
assistance of counsel [were] without merit.”12 The Court of
Appeals has cited Derr in two subsequent cases, State v. Kays13
and State v. Warrack,14 for the proposition that an appellant
must specifically allege prejudice when claiming ineffective
assistance of counsel on direct appeal.
To the extent that the Court of Appeals spoke of Derr’s fail-
ure to allege prejudice, it was incorrect. We reject the propo-
sition that an appellant is required on direct appeal to allege
prejudice when claiming ineffective assistance of trial counsel.
We therefore disapprove State v. Kays15 and State v. Warrack16
to the extent they support such a proposition, and we disap-
prove State v. Derr17 to the extent it has been applied to that
effect. Rather, an appellant must make specific allegations of
trial counsel’s deficient performance.
[4] On direct appeal, the resolution of ineffective assistance
of counsel claims turns upon the sufficiency of the record. We
have often said that 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.18 We
have held in countless cases that the record on direct appeal
was insufficient for assessing ineffective assistance of counsel
10
Id. at 329, 809 N.W.2d at 522.
11
Id. at 327, 809 N.W.2d at 521-22.
12
Id. at 327, 809 N.W.2d at 522.
13
State v. Kays, 21 Neb. Ct. App. 376, 838 N.W.2d 366 (2013).
14
State v. Warrack, 21 Neb. Ct. App. 604, 842 N.W.2d 167 (2014).
15
Kays, supra note 13.
16
Warrack, supra note 14.
17
Derr, supra note 9.
18
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
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STATE v. FILHOLM 769
Cite as 287 Neb. 763
claims.19 This is because the trial record reviewed on appeal is
“devoted to issues of guilt or innocence” and does not usually
address issues of counsel’s performance.20
However, in those cases where we determined that the
record on direct appeal was sufficient to address a claim of
ineffective assistance of trial counsel, the record itself either
affirmatively proved or rebutted the merits of the claim. We
found the record established either that trial counsel’s perform­
ance was not deficient,21 that the appellant could not establish
prejudice,22 or that trial counsel’s actions could not be justified
as a part of any plausible trial strategy.23 Thus, it is not an
19
See, e.g., Watt, supra note 18; State v. McClain, 285 Neb. 537, 827
N.W.2d 814 (2013); State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801
(2013); State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013); State v.
Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012); State v. Nolan, 283
Neb. 50, 807 N.W.2d 520 (2012), cert. denied ___ U.S. ___, 133 S. Ct.
158, 184 L. Ed. 2d 78; State v. Pullens, 281 Neb. 828, 800 N.W.2d 202
(2011); State v. Seberger, 279 Neb. 576, 779 N.W.2d 362 (2010); State
v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010); State v. Robinson,
278 Neb. 212, 769 N.W.2d 366 (2009); State v. Davis, 276 Neb. 755,
757 N.W.2d 367 (2008); State v. Jones, 274 Neb. 271, 739 N.W.2d 193
(2007); State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006); State v.
Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006); State v. Molina, 271 Neb.
488, 713 N.W.2d 412 (2006); State v. Gales, 269 Neb. 443, 694 N.W.2d
124 (2005); State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005); State
v. Brown, 268 Neb. 943, 689 N.W.2d 347 (2004); State v. Cook, 266 Neb.
465, 667 N.W.2d 201 (2003); State v. Leibhart, 266 Neb. 133, 662 N.W.2d
618 (2003); State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003); State v.
Long, 264 Neb. 85, 645 N.W.2d 553 (2002); State v. McLemore, 261 Neb.
452, 623 N.W.2d 315 (2001); State v. Hittle, 257 Neb. 344, 598 N.W.2d
20 (1999).
20
Massaro v. United States, 538 U.S. 500, 505, 123 S. Ct. 1690, 155 L. Ed.
2d 714 (2003). See, also, State v. Young, 279 Neb. 602, 780 N.W.2d 28
(2010).
21
See, e.g., Nolan, supra note 19; State v. Hubbard, 267 Neb. 316, 673
N.W.2d 567 (2004).
22
See, e.g., State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013); Watt,
supra note 18; Hubbard, supra note 21; State v. Cody, 248 Neb. 683, 539
N.W.2d 18 (1995).
23
See, e.g., State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013); State
v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on other
grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
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appellant’s allegations of prejudice that have guided our review
of ineffective assistance claims on direct appeal, but the allega-
tions of deficient conduct.
[5-8] Filholm was required to specifically assign and argue
his trial counsel’s allegedly deficient conduct. This arises from
a fundamental rule of appellate practice. An alleged error must
be both specifically assigned and specifically argued in the
brief of the party asserting the error to be considered by an
appellate court.24 A generalized and vague assignment of error
that does not advise an appellate court of the issue submitted
for decision will not be considered.25 Similarly, an argument
that does little more than to restate an assignment of error
does not support the assignment, and an appellate court will
not address it.26 It naturally follows that on direct appeal, an
appellate court can determine whether the record proves or
rebuts the merits of a claim of ineffective assistance of trial
counsel only if it has knowledge of the specific conduct alleged
to constitute deficient performance. We therefore hold that an
appellant must make specific allegations of the conduct that he
or she claims constitutes deficient performance by trial counsel
when raising an ineffective assistance claim on direct appeal.
General allegations that trial counsel performed deficiently or
that trial counsel was ineffective are insufficient to raise an
ineffective assistance claim on direct appeal and thereby pre-
serve the issue for later review.
[9,10] Although our case law makes clear that specific
allegations of prejudice are required within the context of
postconviction relief,27 we view such a requirement on direct
appeal as a waste of time and resources. As we have noted,
the trial record on appeal is devoted to issues of guilt or
innocence, not counsel’s performance. Thus, to require an
appellant to allege prejudice from ineffective assistance on
24
State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013).
25
State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).
26
Id.
27
See, e.g., State v. Baker, 286 Neb. 524, 837 N.W.2d 91 (2013); State v.
Jim, 275 Neb. 481, 747 N.W.2d 410 (2008); State v. Harris, 274 Neb. 40,
735 N.W.2d 774 (2007).
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direct appeal would require him or her to allege facts in
detail that are likely not within the appellate record or known
to the defendant without further inquiry. And an ineffective
assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.28 We therefore see
no justification for requiring an appellant to allege prejudice
when claiming ineffective assistance of trial counsel on direct
appeal. That said, we emphasize that in the context of direct
appeal, like the requirement in postconviction proceedings,
mere conclusions of fact or law are not sufficient.29 Because
Filholm was required to raise those claims of ineffective
assistance known to him or apparent from the record, specific
allegations were required.
We now turn to the merits of Filholm’s ineffective assistance
of counsel claims. However, before conducting our analysis,
we recall several general principles pertaining to ineffective
assistance of counsel.
[11,12] The test for ineffective assistance of counsel is
well settled. To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington,30 the defendant
must show that his or her counsel’s performance was defi-
cient and that this deficient performance actually prejudiced
the defendant’s defense.31 An appellate court may address the
two prongs of this test, deficient performance and prejudice,
in either order.32 To show prejudice, the defendant must dem-
onstrate a reasonable probability that but for counsel’s defi-
cient performance, the result of the proceeding would have
been different.33
(a) Insufficient Allegations
The Court of Appeals found that three of Filholm’s inef-
fective assistance of counsel claims lacked merit for failure to
28
Watt, supra note 18.
29
See State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
30
Strickland, supra note 5.
31
State v. Marks, 286 Neb. 166, 835 N.W.2d 656 (2013).
32
Id.
33
State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
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allege prejudice. These claims include that his trial counsel was
ineffective for failing to (1) consult and present the testimony
of a DNA expert witness and to effectively cross-examine the
State’s expert witness, (2) obtain video surveillance footage
from a bar and interview two witnesses who could establish
his presence at that bar on the night of the assault, and (3) file
a motion for new trial alleging juror misconduct. The Court of
Appeals correctly determined that Filholm was not entitled to
relief on these issues on direct appeal.
[13] But based upon our holding above, we conclude that the
Court of Appeals erred in reasoning that they failed because of
insufficient allegations of prejudice. Rather, the record was
insufficient to resolve these claims. A correct result will not
be set aside merely because the lower court applied the wrong
reasoning in reaching that result.34
The State argues that trial counsel could not be deficient
for failing to file a motion for new trial if Filholm did not tell
counsel, or allege that he told counsel, about his familiarity
with a juror in time for trial counsel to file a timely motion.
Filholm’s complaint was raised on the record only at sentenc-
ing. But the record does not disclose when Filholm raised the
matter with trial counsel. Thus, the record is not sufficient to
address this claim on direct appeal.
In finding the record to be insufficient to address these
claims, we make no comment whether these allegations of inef-
fective assistance would be sufficient to require an evidentiary
hearing in the context of a motion for postconviction relief. We
simply decline to reach these claims on direct appeal because
the record is insufficient to do so.35 We modify the Court of
Appeals’ decision on those three claims to reflect that the
record is insufficient to address them.
(b) Insufficient Record
The Court of Appeals determined that the record was insuf-
ficient to resolve Filholm’s claim that his trial counsel was
ineffective for failing to interview witnesses who could have
34
See State v. Chiroy Osorio, 286 Neb. 384, 837 N.W.2d 66 (2013).
35
See Morgan, supra note 22.
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placed him in A.B.’s home and in her car on June 24, 2011,
prior to the sexual assault in the early morning of June 25, and
thereby explain the presence of her DNA on his fingers. We
agree that the record is insufficient to resolve this claim.
(c) Remaining Claims
(i) Refreshing of Recollection
Filholm alleges that his trial counsel was ineffective for
failing to object to the refreshing of a witness’ recollection at
trial. The Court of Appeals determined that Filholm could not
establish prejudice from this claim, and we agree.
(ii) Use of Term “Victim”
Filholm asserts that his trial counsel was ineffective for
failing to move for a mistrial after two of the State’s wit-
nesses used the term “victim” despite an order in limine pro-
hibiting them from doing so. The Court of Appeals rejected
this claim because it concluded that Filholm’s trial counsel
did not perform deficiently. We find no error in its analysis
on this issue.
(iii) Use of Term “Rape”
Finally, Filholm alleges that his trial counsel was ineffective
for failing to take three actions with respect to the term “rape.”
First, he claims that his trial counsel failed to include the term
within his motion in limine. Second, he claims that his trial
counsel failed to make a hearsay objection to A.B.’s statement
at trial that Filholm had raped her. Third, he argues that his
trial counsel failed to move to strike A.B.’s statement.
The Court of Appeals found that Filholm did not establish
prejudice from his trial counsel’s failure to include the term
“rape” within his motion in limine, and we agree. Although
the State argues that the court found insufficient allegations of
prejudice on this issue, we read the court’s opinion as reject-
ing the claim on the merits. The court also concluded that
Filholm’s trial counsel did not perform deficiently in failing
to make a hearsay objection to A.B.’s statement or in failing
to move to strike her statement. As these actions would have
ultimately been unsuccessful, we see no error in the Court
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of Appeals’ conclusion that Filholm did not receive ineffec-
tive assistance.
2. Insufficient Evidence
Filholm assigns that there was insufficient evidence to sup-
port his conviction. We disagree. As we have already noted,
the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found Filholm guilty of the crime beyond a
reasonable doubt.36
Filholm was charged with first degree sexual assault under
Neb. Rev. Stat. § 28-319(1)(a) (Reissue 2008). Under that stat-
ute, a person commits the offense if he or she subjects another
person to sexual penetration without that person’s consent. The
elements of penetration and absence of consent were undis-
puted at trial. Thus, this assignment of error turns on whether
the State presented sufficient evidence to permit a rational jury
to conclude beyond a reasonable doubt that Filholm was the
man who sexually assaulted A.B.
A man entered A.B.’s home in the early morning of June
25, 2011, and awoke her by touching her face. The man’s face
was covered with a blanket, but he had a beard and smelled
like cigarettes. Filholm admittedly had “sort of a goatee”
and smelled strongly of cigarettes when he was apprehended
by police.
The man removed A.B.’s clothing, digitally penetrated her,
performed oral sex on her, and had sexual intercourse with her.
He spoke during the assault, and A.B. recognized the voice as
Filholm’s because she had known him for several years. He
then forced her to shower and washed out her mouth and vagi-
nal area. When Filholm was found, his clothing was “signifi-
cantly wet,” but not in a way that was consistent with having
urinated himself.
The man left just shortly before A.B.’s family returned
from the family’s restaurant. Filholm had visited the restau-
rant sometime that night and, thus, knew that A.B. was most
likely at home alone. Although the timing of his visit was
36
See Castillas, supra note 7.
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subject to conflicting evidence, the jury was presented with
sufficient evidence from which it could conclude that Filholm
had adequate time to commit the assault prior to the arrival of
her family.
Finally, DNA samples taken from Filholm’s person and
clothing revealed A.B.’s DNA on his fingers and Filholm’s
semen on his underwear and on the outside of his pants.
Filholm argues that “a fair resolution of conflicts in the testi-
mony, a weighing of the evidence, and a drawing of reasonable
inferences from the facts can only lead to the conclusion that
reasonable doubt existed as to [his] guilt.”37 But 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.38 We determine only whether, based
upon the evidence, a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. It
could. This assigned error lacks merit.
VI. CONCLUSION
We affirm Filholm’s conviction and sentence. However, we
reject the Court of Appeals’ proposition that, on direct appeal,
an appellant must allege prejudice when claiming ineffective
assistance of counsel. The disposition of ineffective assistance
claims on direct appeal turns on the sufficiency of the record.
Thus, an appellant must make specific allegations of trial
counsel’s deficient conduct. Specific allegations of prejudice
are not necessary at that stage. We therefore conclude that the
Court of Appeals applied the wrong reasoning in finding that
three of Filholm’s ineffective assistance claims lacked merit for
failure to allege prejudice. Rather, the record was insufficient
to address those three claims. We modify the court’s decision
accordingly. Because the Court of Appeals correctly deter-
mined that Filholm was not entitled to relief on direct appeal,
we affirm its decision as so modified.
Affirmed as modified.
37
Memorandum brief for appellant in support of petition for further review
at 5.
38
Castillas, supra note 7.