State v. Kays ( 2013 )

Decisions of the Nebraska Court of Appeals
376 21 NEBRASKA APPELLATE REPORTS
State of Nebraska, appellee, v.
Charles E. Kays, appellant.
___ N.W.2d ___
Filed October 15, 2013. No. A-11-504.
1. Appeal and Error. In order to be considered by an appellate court, alleged errors
must be both specifically assigned and specifically argued in the brief of the party
asserting the error.
2. ____. An appellate court does not consider errors which are argued but
not assigned.
3. Rules of the Supreme Court: Conflict of Interest: Words and Phrases:
Appeal and Error. A “conflict of interest” has been interpreted by the Nebraska
Supreme Court to fall within the definition of a “disability” under Neb. Ct. R.
App. P. § 2-105(5) (rev. 2010).
4. Rules of the Supreme Court: Recusal: Conflict of Interest: Words and
Phrases: Appeal and Error. For the purposes of Neb. Ct. R. App. P. § 2-105(5)
(rev. 2010), the term “disability” includes situations where a judge has recused
himself or herself due to a conflict of interest.
5. Trial: Records: Appeal and Error. The record of the trial court, when properly
certified to an appellate court, imports absolute verity; if the record is incorrect,
any correction must be made in the district court.
6. Trial: Records: Evidence: Appeal and Error. The trial court record cannot be
contradicted in an appellate court by extrinsic evidence.
7. Trial: Records: Appeal and Error. An issue of fact cannot be made by an appel-
late court as to any matter properly shown by the records of the trial court.
8. Trial: Records: Evidence: Appeal and Error. In an appellate review, a tran-
script of the orders or judgment entered is the sole, conclusive, and unimpeach-
able evidence of the proceedings in the district court.
9. Trial: Records: Appeal and Error. The correctness of the trial court record may
not be assailed collaterally in an appellate court.
10. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error. A
party who fails to make a timely motion for mistrial based on prosecutorial mis-
conduct waives the right to assert on appeal that the court erred in not declaring
a mistrial due to such prosecutorial misconduct.
11. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a suf-
ficiency 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.
12. Sexual Assault: Words and Phrases. For sexual penetration, it is not necessary
that the vagina be entered or that the hymen be ruptured; the entry of the vulva
or labia is sufficient.
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 377
Cite as 21 Neb. App. 37613. Effectiveness of Counsel: Records: Appeal and Error. A claim of ineffective
assistance of counsel need not be dismissed merely because it is made on direct
appeal. The determining factor is whether the record is sufficient to adequately
review the question.
14. Effectiveness of Counsel: Evidence: Appeal and Error. An appellate court
will not address an ineffective assistance of counsel claim on direct appeal if it
requires an evidentiary hearing.
15. Effectiveness of Counsel: Proof. 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 counsel’s performance
was deficient and that this deficient performance actually prejudiced his or
her defense.
16. Constitutional Law: Sentences. In cases where a defendant does not raise a
facial challenge to the constitutionality of the statute regarding his or her sentenc-
ing, but, rather, asserts that the sentence “as applied” to him or her constitutes
cruel and unusual punishment, the challenge involves the same considerations as
a claim of excessive sentence.
Appeal from the District Court for Douglas County: Leigh
Ann R etelsdorf, Judge. Affirmed.
Frank E. Robak, Sr., of Robak Law Office, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.
Inbody, Chief Judge.
I. INTRODUCTION
Charles E. Kays appeals his convictions, following a jury
trial, of first degree sexual assault of a child and two counts of
third degree sexual assault of a child, and appeals the sentences
imposed thereon.
II. FACTUAL BACKGROUND
The victim in this case, C.F., has lived with her grandparents,
Kays and Linda Kays, since she was 4 years old. On October 5,
2010, C.F. got into an argument with Kays and Kays threatened
to shoot several people, including C.F., C.F.’s father, Linda, and
C.F.’s aunt. C.F. called her father, after which both C.F. and her
father called the 911 emergency dispatch service. Two Omaha
police officers, Joe Eischeid and another officer, responded
to the Kays’ home to conduct a check on the well-being of
Decisions of the Nebraska Court of Appeals
378 21 NEBRASKA APPELLATE REPORTS
C.F. and her younger brother. Upon investigation, the officers
determined that there was no immediate threat; however, as the
officers were leaving, C.F. became very upset and began cry-
ing. As a result, the officer accompanying Eischeid took C.F.
outside to speak to her privately, at which time she disclosed
sexual abuse.
In the meantime, Eischeid remained in the house with Kays.
Kays informed Eischeid that “he thinks he knows what is both-
ering [C.F.],” and Kays indicated that “a few years ago [C.F.]
had the habit of walking around the residence naked”; that “at
times, she would come out of the shower or bathtub naked
and run around the house”; and that “on several occasions, she
would come up to him while . . . she did not have any clothes
on and would sit on his face.” Kays indicated he would tell
C.F. that it was wrong and that she was a “big girl.” Kays also
told Eischeid that on a few occasions, C.F. would climb into
bed with him, get under the covers while he was sleeping, and
put her hand down his pants, touching his penis. Kays said
he would tell her that it was not right and that she was a “big
girl.” Kays further indicated that he has a vibrating massager
he uses on his back and that on one other occasion, he had used
the vibrator on C.F. while she did not have any clothes on and
may have accidentally touched her vaginal area with it. During
Kays’ statements, Eischeid did not ask any questions, testify-
ing that he “was just totally shocked and just let him talk.”
After conferring with the other officer, Eischeid transported
C.F. and her brother to “Project Harmony,” an agency which
has specially trained investigators to handle potential child
sexual assault victims. Officer Amber Schlote from the child
victims unit conducted an interview of C.F., and following
the interview with C.F. and an interview with Kays, Kays was
arrested and charged with first degree sexual assault of a child.
The information was later amended to add two counts of third
degree sexual assault of a child.
A jury trial was held on April 6 through 8, 2011. During
voir dire, 13 jurors were sworn in, with the alternate juror not
identified. Trial commenced. Evidence adduced at trial estab-
lished that Kays was born in April 1941 and that C.F. was born
in March 2000.
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 379
Cite as 21 Neb. App. 376The State’s first witness was Schlote. Schlote testified that
during her interview of C.F., she asked C.F. to use dolls to
demonstrate what had happened to her during the first incident
of sexual abuse. According to Schlote,
[C.F.] laid the grandpa doll on the floor on its back and
used the doll that was her and sat it on top of the grandpa
doll and showed that she was facing him with her knees
under here. She was on her knees and her feet behind her
and she said she straddled him.
Specifically, “[s]he showed that she straddled his chest and
showed that he used his hand to pull her forward to his face.”
Additionally, C.F. demonstrated that the male doll put his head
in the female doll’s vaginal area. According to Schlote, C.F.
demonstrated two different incidents where the female doll was
pulled up toward the male doll’s face, with the vaginal area in
the male doll’s face. In speaking with C.F., Schlote was able
to determine that the incidents occurred in two locations or
houses and that the incidents occurred over a period of time.
After Schlote asked C.F. to draw a picture of something that
happened, C.F. drew a picture of a vibrating massager. During
the interview, C.F. indicated to Schlote that Kays acted inap-
propriately on four or five occasions.
C.F. testified that at the time of trial, she was 11 years old.
She testified that she began living with her grandparents, Kays
and Linda, when she was 4 years old and that her brother
began living with them the following year. The first place
that C.F. lived with her grandparents was on Cypress Drive
in Omaha; then, when C.F. was 7 years old, they moved to
a house on Holmes Street in Omaha. C.F. testified that she
remembered that the move occurred when she was 7 years old,
because Kays had a heart attack and wanted to move to a dif-
ferent residence. C.F. testified that since she began living with
her grandparents, Kays had touched her four times in a way
that made her feel bad.
C.F. testified that the first incident occurred when she was
4 years old and lived on Cypress Drive. C.F. testified that she
had been sitting on her bed, when Kays told her to move on
top of him and pull her pants down. Kays was lying down,
and C.F. sat so that her legs were on both sides of him and
Decisions of the Nebraska Court of Appeals
380 21 NEBRASKA APPELLATE REPORTS
she was facing him. C.F. testified that Kays “would lick [her]”
“[a]round [her] private” and that Kays told her not to tell any-
one what happened or he would go to jail.
The second incident also occurred at the house on Cypress
Drive. C.F. testified that she was 5 years old at the time of the
second incident. C.F. testified that she was lying down with
Kays in his bedroom when he told her to shut the door and to
take off her panties. C.F. “went up next to [Kays],” he moved
her to get her on top of him, and then he licked her vagina.
The third incident occurred when C.F. was 7 years old, after
moving to the home on Holmes Street. C.F. testified that Kays
touched her with his hands “[a]round [her] vagina.”
The fourth incident also occurred at the Holmes Street
address when she was 8 years old. Kays again touched C.F.
“around [her] private” with his hands and with a vibrating
massager. C.F. stated that Kays then told her to follow him
into the bathroom and that he then plugged in the vibrat-
ing massager and put it on his penis until semen “went into
the toilet.”
C.F. responded in the negative when asked: “Did [Kays] put
his fingers in your vagina?” and “[D]id he ever touch inside
it?” and “Was there ever a time when he was touching you
with his fingers that he put them in your private?” C.F. further
responded negatively when asked whether she remembered
a time where she said that “he took his finger and put it in
[her] vagina.”
The defense moved for a directed verdict on count I, first
degree sexual assault of a child, on the basis that the State had
not proved the element of penetration. The motion was over-
ruled, and Kays called witnesses on his behalf consisting of
Linda and himself. At the close of the evidence, the defense
renewed its motion for a directed verdict, which was overruled
by the court. After closing arguments, the case was submitted
to the jury. The dismissal of the alternate juror is not found in
the record.
The jury found Kays guilty of the charged offenses. The
12 jurors were polled, and, when asked, each juror responded
individually that this was his or her verdict. Thereafter, the
district court sentenced Kays to 15 to 15 years’ imprisonment
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 381
Cite as 21 Neb. App. 376on count I and 20 months’ to 5 years’ imprisonment each on
counts II and III. Additionally, counts II and III were ordered
to be served concurrently to each other and consecutively to
count I. Kays was given credit for 97 days served.
III. PROCEDURAL BACKGROUND
Kays timely appealed to this court, but filed an “Application
for Relief, Guidance, or Other Remedy Including Striking of
[the] Bill of Exceptions” and/or motion for the issuance of
a show cause order as to why summary reversal should not
be granted due to “Bill of Exceptions Irregularities Highly
Prejudicial” to Kays. The accompanying affidavit set forth that
copies of the bill of exceptions, one of which was e-mailed to
Kays’ appellate counsel by the court reporter, provided that 13
jurors had been selected and 13 jurors polled. However, the
affidavit stated that in January 2012, after preparation of Kays’
brief, the court reporter took the bill of exceptions, without
signing it out, and substituted a replacement bill of exceptions
which contained a file-stamped cover page dated August 11,
2011, and that this replacement bill of exceptions altered the
polling of jurors to include 12 jurors. Kays’ motion was over-
ruled without prejudice to proceeding in the district court to
correct the bill of exceptions. Kays then filed an application
for remand of the cause to the district court to correct the
bill of exceptions due to discrepancies in the original bill of
exceptions and a subsequently filed bill of exceptions regard-
ing the polling of a 13th juror, which motion for remand was
sustained by this court. Thereafter, on September 4, 2012, a
hearing was held before a different district court judge regard-
ing Kays’ motion to correct and file an amended bill of excep-
tions and a supplemental request for leave to amend the bill
of exceptions to conform to the evidence; on the court’s own
motion, due to a conflict of interest, the original district court
judge who had conducted the trial recused herself from the
proceedings to amend the bill of exceptions.
At the hearing on Kays’ motion to correct and file an
amended bill of exceptions and a supplemental request for
leave to amend the bill of exceptions to conform to the evi-
dence, the court reporter testified that she was the court
Decisions of the Nebraska Court of Appeals
382 21 NEBRASKA APPELLATE REPORTS
reporter during Kays’ jury trial and that she created the original
bill of exceptions. The court reporter initially filed the original
bill of exceptions on August 11, 2011. After the filing of the
original bill of exceptions, the court reporter received a let-
ter from Kays’ appellate counsel, dated September 23, 2011,
informing her that there were some errors in the bill of excep-
tions and that “he wanted [her] to correct it and refile it.” The
court reporter proceeded to have the bill of exceptions proof-
read again, made corrections, printed out a new corrected copy
of the bill of exceptions, and refiled the corrected replacement
bill of exceptions. She further testified that when Kays’ appel-
late counsel “didn’t tell [her] to do it a different way, that
that was the way I was to do it. That’s the first time I’ve ever
had to do that before.” The court reporter testified that at her
request, the replacement bill of exceptions was backdated to
August 11, 2011, which was the date that the original bill of
exceptions had been filed. The court reporter testified that
when she refiled the bill of exceptions, she was not aware she
was not allowed to “backdate” it, and that she was not try-
ing to hide anything or cover up anything by her actions. The
court reporter admitted that she changed the contents of the bill
of exceptions without court order or court approval, that she
shredded the original bill of exceptions, and that she did not
have court approval to destroy the original bill of exceptions.
The court reporter further admitted that on a later unknown
date, she backdated the replacement certificate page to reflect
the original filing date of August 11, 2011.
The court reporter also testified that she e-mailed Kays’
appellate counsel a copy of the original version of the bill of
exceptions and that when she attempted to e-mail a corrected
version of the bill of exceptions, she e-mailed the wrong file
and did not send the proofread version. When asked about
e-mailing the bill of exceptions to defense counsel, the court
reporter stated:
[W]hy I emailed that to him is because I — I felt bad.
This is the first time that’s ever happened to me where
someone pointed out there [were] errors in my Bill of
Exceptions. Usually you have to pay for the copies. I felt
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 383
Cite as 21 Neb. App. 376bad, so I emailed it to him, and I must have picked the
wrong file.
The court reporter admitted the mistakes that she made
in this case, but testified that the final version of the bill of
exceptions currently filed with the clerk of the district court
is the accurate version of what transpired at Kays’ trial. She
further testified:
I feel bad that it all happened. It was a mistake. And I — I
tried to correct it because I wanted to show what hap-
pened in the courtroom. I did not do it the right way. I’ve
learned that now. I mean, I just want the accurate record
to go up to the appeals court. That’s what happened.
There were 12 jurors.
One of the exhibits admitted into evidence was an affidavit
from juror No. 13. Her affidavit set forth that she had been
impaneled as a member of the jury in Kays’ case and that she
sat as a juror until the case was submitted for deliberation at
the close of the evidence, at which time the judge explained
that she was the alternate juror and that her service was no
longer needed. Her affidavit stated that she did not deliberate
in Kays’ case.
The district court entered an order finding that the bill of
exceptions prepared and filed by the court reporter had been
corrected as ordered and constituted the bill of exceptions upon
which Kays’ appeal should proceed.
IV. ASSIGNMENTS OF ERROR
On appeal, Kays’ assignments of error, consolidated and
restated, are that the district court erred in finding that the
replacement bill of exceptions was credible and was to serve
as the bill of exceptions in this case and in failing to dis-
charge the alternate juror prior to submission of the case to
the jury for deliberation, in accordance with Neb. Rev. Stat.
§§ 29-2004(2) and 29-2005 (Reissue 2008), resulting in a ver-
dict by a 13-member jury without his consent or waiver. Kays
also contends that he did not receive a fair and impartial trial
because of prosecutorial misconduct, that the evidence was
insufficient to support his convictions, and that he received
Decisions of the Nebraska Court of Appeals
384 21 NEBRASKA APPELLATE REPORTS
ineffective assistance of trial counsel. Finally, Kays contends
that the sentences imposed upon him were excessive.
[1,2] We note that in his brief, Kays argues several errors
that are not assigned, such as that the district court abused its
discretion in not allowing testimony concerning a psychologist,
that a written question by the jury contained in the file was
not addressed on the record, and that the district court erred
in overruling his motion for directed verdict. In order to be
considered by an appellate court, alleged errors must be both
specifically assigned and specifically argued in the brief of the
party asserting the error. Dowd Grain Co. v. County of Sarpy,
19 Neb. App. 550, 810 N.W.2d 182 (2012). We do not consider
errors which are argued but not assigned. See State v. Duncan,
278 Neb. 1006, 775 N.W.2d 922 (2009).
V. ANALYSIS
1. Bill of Exceptions
Kays contends that the district court erred in finding that the
replacement bill of exceptions was credible and was to serve as
the bill of exceptions in this case.
Due to discrepancies in the original bill of exceptions and a
subsequently filed bill of exceptions, the cause was remanded
to the district court for the certification of an appellate record
to be conducted pursuant to the procedure set forth in Neb. Ct.
R. App. P. § 2-105(5) (rev. 2010), which provides:
The parties in the case may amend the bill of exceptions
by written agreement to be attached to the bill of excep-
tions at any time prior to the time the case is submitted to
the Supreme Court. Proposed amendments not agreed to
by all the parties to the case shall be heard and decided
by the district court after such notice as the court shall
direct. The order of the district court thereon shall be
attached to the bill of exceptions prior to the time the
case is submitted to the Supreme Court. Hearings with
respect to proposed amendments to a bill of exceptions
may be held at chambers anywhere in the state. If the
judge shall have ceased to hold office, or shall be pre-
vented by disability from holding the hearing, or shall be
absent from the state, such proposed amendments shall
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 385
Cite as 21 Neb. App. 376be heard by the successor judge, or by another district
judge in the district, or by a district judge in an adjoining
judicial district.
[3] On September 4, 2012, a hearing was held before a dif-
ferent district court judge regarding Kays’ motion to correct
and file an amended bill of exceptions and a supplemental
request for leave to amend the bill of exceptions to conform
to the evidence; on the court’s own motion due to a conflict
of interest, the original district court judge who had conducted
the trial recused herself from the proceedings to amend the
bill of exceptions. Although a “conflict of interest” is not one
of the listed factors in § 2-105(5) which prevent the original
judge from presiding over a hearing to certify a bill of excep-
tions, the rule does provide that another district judge may
hold the hearing if the original judge “shall be prevented by
disability from holding the hearing.” In similar circumstances,
a “conflict of interest” has been interpreted by the Nebraska
Supreme Court to fall within the definition of a “disabil-
ity.” See, In re Complaint Against White, 264 Neb. 740, 651
N.W.2d 551 (2002); Stewart v. McCauley, 178 Neb. 412, 133
N.W.2d 921 (1965); Gandy v. State, 27 Neb. 707, 43 N.W.
747 (1889).
Stewart v. McCauley, supra, involved an action instituted
in a district court by an infant child’s prospective adoptive
parents to bring to the court’s attention the need to provide for
the welfare, custody, and control of a neglected and dependent
child, where the county attorney had accepted employment in
a civil action representing the child’s biological parents, which
made it impossible to secure the consent of the county attorney
as required by statute at that time and therefore prevented any
action to protect the welfare of the minor child. The Nebraska
Supreme Court phrased the question presented as whether an
irresponsible parent (or possibly a much worse parent) could
prevent action by the juvenile court to protect the welfare of an
innocent child merely by hiring the county attorney in a civil
action involving that child.
The Supreme Court turned to Neb. Rev. Stat. § 23-1205(1943), which, at that time, gave the district court the authority
to appoint an acting county attorney in the event of absence,
Decisions of the Nebraska Court of Appeals
386 21 NEBRASKA APPELLATE REPORTS
sickness, or disability of the county attorney. Stewart v.
McCauley, supra. The Supreme Court noted that as early as
its decision in Gandy v. State, supra, in 1889, the term “dis-
ability” had been interpreted “to cover situations where the
county attorney by reason of prior employment disqualified
himself to act in the new case.” Stewart v. McCauley, 178
Neb. at 418, 133 N.W.2d at 925. See, also, In re Complaint
Against White, supra (judge’s personal dissatisfaction with
performance of county attorney’s office did not constitute “dis-
ability” within meaning of § 23-1205 (Reissue 1997)). Thus,
the Supreme Court in Stewart v. McCauley, supra, determined
that the county attorney’s representation of the minor child’s
biological parents constituted a “disability” for the purposes of
§ 23-1205 (1943).
[4] Applying a consistent interpretation of the term “dis-
ability” to § 2-105(5), if the term “disability” is interpreted to
cover situations where a public official disqualifies himself or
herself to act in a new case by reason of prior employment,
it follows that “disability” would likewise cover situations
where a judge has recused himself or herself due to a conflict
of interest. Thus, the original district court judge who presided
over Kays’ trial and who recused herself from holding the hear-
ing regarding the certification of the bill of exceptions due to
a conflict of interest was, in fact, prevented by a “disability”
from holding the hearing, and the hearing was properly held
by a different district court judge, who then certified a bill of
exceptions to this court.
[5-7] The record of the trial court, when properly certi-
fied to an appellate court, imports absolute verity; if the
record is incorrect, any correction must be made in the district
court. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994);
Wonderling v. Conley, 182 Neb. 446, 155 N.W.2d 349 (1967).
The trial court record cannot be contradicted in an appellate
court by extrinsic evidence. See Anderson v. State, 163 Neb.
826, 81 N.W.2d 219 (1957). An issue of fact cannot be made
by an appellate court as to any matter properly shown by the
records of the trial court. See id.[8,9] Upon remand, the district court entered an order find-
ing that the bill of exceptions prepared and filed by the court
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 387
Cite as 21 Neb. App. 376reporter has been corrected as ordered and constitutes the
bill of exceptions upon which Kays’ appeal should proceed.
In an appellate review, a transcript of the orders or judgment
entered is the sole, conclusive, and unimpeachable evidence of
the proceedings in the district court. Anzalone Inv. Co. v. City
of Omaha, 179 Neb. 314, 137 N.W.2d 857 (1965). The cor-
rectness of the trial court record may not be assailed collater-
ally in this court. Id. Thus, Kays’ appeal will be heard on the
bill of exceptions presented to this court to which we import
absolute verity.
2. Discharge of Alternate Juror
Kays next contends that the district court erred in failing
to discharge the alternate juror prior to submission of the
case to the jury for deliberation, resulting in a verdict by a
13-­ ember jury without his consent or waiver.
m
However, as we noted in the prior section of this opinion,
having determined that the bill of exceptions which has been
certified to this court is given absolute verity, we note that
the bill of exceptions reflects that 13 jurors were selected
at the beginning of the trial. Although the record does not
reflect that the alternate juror was discharged, the record
does reflect that when the jury was polled after the verdict,
12 jurors responded affirmatively that the verdict was their
verdict. Additionally, at the September 4, 2012, hearing on
remand, an affidavit was received into evidence from juror
No. 13 which set forth that she had been impaneled as a
member of the jury in Kays’ case and that she sat as a juror
until the case was submitted for deliberation at the close of
the evidence, at which time the judge explained that she was
the alternate juror and that her service was no longer needed.
Her affidavit stated that she did not deliberate in Kays’ case.
The district court entered an order finding that juror No. 13
did not participate in deliberations and that the bill of excep-
tions as corrected constituted the bill of exceptions on which
the appeal should proceed. The record does not support, and
in fact contradicts, Kays’ claim that his verdict was deliv-
ered by a 13-member jury. This assignment of error is with-
out merit.
Decisions of the Nebraska Court of Appeals
388 21 NEBRASKA APPELLATE REPORTS
3. Fair and Impartial Trial
Kays also contends that he did not receive a fair and impar-
tial trial because of prosecutorial misconduct, insufficient evi-
dence to support his convictions, and ineffective assistance of
trial counsel.
(a) Prosecutorial Misconduct
Kays argues that the prosecution committed misconduct dur-
ing its opening statement, during its cross-examination of both
Kays and defense witness Linda, and during its closing argu-
ments. Kays also claims that the State asked leading questions
of the victim.
[10] A party who fails to make a timely motion for mistrial
based on prosecutorial misconduct waives the right to assert
on appeal that the court erred in not declaring a mistrial due to
such prosecutorial misconduct. State v. Lotter, 255 Neb. 456,
586 N.W.2d 591 (1998); State v. Balvin, 18 Neb. App. 690, 791
N.W.2d 352 (2010).
The record discloses that Kays did not move for a mistrial
at any time during the trial. Consequently, he has waived his
claim that a mistrial should have been declared due to the pros-
ecution’s alleged misconduct.
(b) Insufficiency of Evidence
Kays also contends that the evidence was insufficient to
support his convictions of one count of first degree sexual
assault of a child and two counts of third degree sexual assault
of a child.
[11] 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. State v. Watson, 285 Neb. 497, 827 N.W.2d 507(2013); State v. Howell, 284 Neb. 559, 822 N.W.2d 391 (2012).
The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id.Decisions of the Nebraska Court of Appeals
STATE v. KAYS 389
Cite as 21 Neb. App. 376(i) First Degree Sexual
Assault of Child
[12] A person commits first degree sexual assault of a
child if he or she subjects another person under 12 years of
age to sexual penetration and the actor is at least 19 years
of age or older. Neb. Rev. Stat § 28-319.01 (Reissue 2008).
Neb. Rev. Stat. § 28-318(6) (Reissue 2008) defines sexual
penetration as
sexual intercourse in its ordinary meaning, cunnilingus,
fellatio, anal intercourse, or any intrusion, however slight,
of any part of the actor’s or victim’s body or any object
manipulated by the actor into the genital or anal openings
of the victim’s body which can be reasonably construed
as being for nonmedical or nonhealth purposes. Sexual
penetration shall not require emission of semen.
It is not necessary that the vagina be entered or that the hymen
be ruptured; the entry of the vulva or labia is sufficient. State
v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
Kays’ argument regarding the insufficiency of the evidence
focuses on the evidence of penetration. There was no dispute
at trial over the ages of Kays and C.F. It is clear that the age
element of the offense is satisfied, because the evidence estab-
lished that Kays was born in April 1941 and that C.F. was born
in March 2000. Additionally, the evidence, when viewed in the
light most favorable to the State, established that Kays licked
C.F.’s vagina. This evidence is sufficient to support Kays’ con-
viction of first degree sexual assault of a child.
(ii) Third Degree Sexual
Assault of Child
Kays was charged with two counts of third degree sexual
assault of a child. A person commits third degree sexual assault
of a child if he or she subjects another person 14 years of age
or younger to sexual contact and the actor is at least 19 years
of age or older and does not cause serious personal injury
to the victim. See Neb. Rev. Stat. § 28-320.01(1) and (3)
(Reissue 2008).
There is no question that the age element of the offense
is satisfied, because the evidence established that Kays was
Decisions of the Nebraska Court of Appeals
390 21 NEBRASKA APPELLATE REPORTS
born in April 1941 and that C.F. was born in March 2000.
The evidence, when viewed in the light most favorable to the
State, establishes that Kays touched C.F.’s vagina with his
hands and, on another occasion, touched C.F.’s vagina with
his hands and with a vibrating massager. Thus, the evidence
is sufficient to support both of Kays’ convictions for third
degree sexual assault of a child.
(c) Ineffective Assistance
of Counsel
Kays claims that his trial counsel was ineffective in failing
to object when the prosecutor made “improper, misleading, or
derogatory statements”; in failing to move for a mistrial or new
trial; in failing to discuss the presentence investigation report
with Kays prior to the time of sentencing; and in failing to
notice 13 jurors in the selection, deliberation, and polling of
the jury. Brief for appellant at 27.
[13,14] A claim of ineffective assistance of counsel need
not be dismissed merely because it is made on direct appeal.
The determining factor is whether the record is sufficient to
adequately review the question. State v. McClain, 285 Neb.
537, 827 N.W.2d 814 (2013). Conversely, we will not address
an ineffective assistance of counsel claim on direct appeal if it
requires an evidentiary hearing. Id.[15] 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), Kays must show that
his counsel’s performance was deficient and that this defi-
cient performance actually prejudiced his defense. See State v.
McClain, supra.
(i) Failure to Object to
Prosecutorial Misconduct
First, we address Kays’ claim that his trial counsel was inef-
fective for failing to raise proper objections when the prosecu-
tor made “improper, misleading, or derogatory statements.” It
appears from Kays’ brief that his allegations relate to five sepa-
rate areas: opening statements, leading questions of the victim,
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 391
Cite as 21 Neb. App. 376cross-examination of Linda, cross-examination of Kays, and
closing arguments.
a. Opening Statements
Kays argues that trial counsel was ineffective for failing
to object when the prosecutor referenced “sexual assaults”
in the plural and that because he was charged with only one
count of “sexual assault,” this statement was highly prejudi-
cial. Although Kays correctly notes that he was charged with
only one count of first degree sexual assault of a child, he was
also charged with an additional two counts of third degree
sexual assault of a child. Since the prosecutor’s comments
were accurate—Kays was charged with multiple counts of
sexual assault—there can be no prosecutorial misconduct, no
prejudice, and no ineffectiveness of trial counsel for failing
to object.
b. Leading Questions of Victim
Kays contends that his trial counsel was ineffective for fail-
ing to object to the prosecution’s asking leading questions of
C.F. Kays objects to the following specific instances of ques-
tioning of C.F. by the prosecution:
Q. Were you facing him?
A. Yeah.
Q. So you were looking at each other?
A. Uh-huh.
Q. Was he laying down or sitting up?
A. He was laying down.
Q. And how did he touch you?
A. He would lick me.
Q. And how did he lick you? Did he move you to
his face?
[Defense counsel]: Objection, leading.
THE COURT: Sustained.
....
Q. And after he got done licking you, your vagina — or
how long did that last?
A. I don’t remember.
Decisions of the Nebraska Court of Appeals
392 21 NEBRASKA APPELLATE REPORTS
Kays also objects to the prosecutor’s questioning of C.F. in
this exchange concerning Kays’ hands and fingers:
Q. And where was he touching your vagina?
A. Around it.
Q. And then did he ever touch inside it?
A. No.
Q. On this time did he put his fingers in your vagina?
[Defense counsel]: Objection, asked and answered.
THE COURT: Overruled.
....
Q. Did he put his fingers in your vagina?
A. No.
....
Q. Was there ever a time when he was touching you
with his fingers that he put them in your private?
[Defense counsel]: Objection, asked and answered.
[C.F.]: No.
THE COURT: Overruled.
....
Q. Do you remember a time when you told us that he
took his finger and put it in your vagina?
[Defense counsel]: Objection, leading.
THE COURT: Overruled.
[C.F.]: No.
In each of these instances, defense counsel objected to the
prosecutor’s questions, and therefore, Kays cannot establish
deficient performance, because defense counsel has performed
in the manner requested. Additionally, defense counsel did not
object to the State’s question “And after he got done licking
you, your vagina — or how long did that last?”; however,
C.F.’s answer of “I don’t remember” did not prejudice Kays
and neither did her earlier testimony regarding this particular
incident, that Kays had touched her “[a]round [her] private,”
or vagina. Thus, Kays cannot establish any prejudice from
defense counsel’s failure to object to this particular question
posed to C.F. by the State.
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 393
Cite as 21 Neb. App. 376c. Cross-Examination of Linda
Kays contends that the prosecutor engaged in highly inflam-
matory and prejudicial nonrelevant cross-examination of Linda
consisting of the following exchange:
Q. [Linda, C.F.] is not your biological granddaughter;
is that correct?
A. Yes.
Q. Your husband had a child with another woman
while you were with him?
A. That’s correct.
Q. And that would be [C.F.’s] father?
A. Yes.
Q. And he’s had other children since you’ve been with
him with other women?
[Defense counsel]: Objection, relevance.
THE COURT: Overruled — sustained.
Again, defense counsel objected to the prosecution’s ques-
tions and Kays cannot establish deficient performance, because
defense counsel has performed in the manner requested.
d. Cross-Examination of Kays
Kays contends that the prosecutor engaged in what he
referred to as a “malicious attack” during cross-examination
of Kays, brief for appellant at 25, during the following
exchange:
Q. And . . . you sat here while your wife was testify-
ing; correct?
A. Yes.
Q. And so it’s true [C.F.] is not your wife’s biological
grandchild?
A. Correct.
Q. Who was the person you had a child with out of
wedlock?
A. [My son’s] mom.
Q. Where were you living when that occurred?
[Defense counsel]: Objection, relevance.
Decisions of the Nebraska Court of Appeals
394 21 NEBRASKA APPELLATE REPORTS
THE COURT: Sustained.
....
Q. But you were married to your wife at the time that
you had —
A. We were separated —
[Defense counsel]: Objection, relevance.
THE COURT: Only one person can talk at a time.
Overruled. He’s answered the question. They were
separated.
....
Q. And were you separated every time you had a child
out of wedlock?
[Defense counsel]: Objection.
THE COURT: Sustained.
Defense counsel objected to the prosecution’s questions, and
Kays cannot establish deficient performance, because defense
counsel has performed in the manner requested.
e. Closing Arguments
Kays contends that certain statements made by the pros-
ecutor during closing arguments were improper and should
have been objected to by defense counsel. Kays objects to
the following statements made by the prosecutor during clos-
ing arguments:
Do you believe [C.F.] and all of the corroborating evi-
dence or what this guy said? The defense attorney got up
here and said, don’t forget about Paul Harvey. You’ll hear
the rest of the story. I didn’t hear the rest of the story. All
you heard was a liar. It wasn’t the rest of the story. Why
is he not credible? Why is he lying?
....
. . . [H]e’s telling you what he wants when he wants.
That’s not the story. He’s lying.
....
. . . Look at his lies, and use your common sense.
Throw out his testimony.
The record on direct appeal is insufficient to review this
claim.
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 395
Cite as 21 Neb. App. 376(ii) Failure to Move for
Mistrial/New Trial
Kays claims that his counsel was ineffective in failing to
move for a mistrial due to the prosecution’s inflammatory
statements and conduct. The record on direct appeal is insuf-
ficient to review Kays’ claim that his trial counsel was ineffec-
tive for failing to move for a mistrial.
Kays also contends that his counsel was ineffective for fail-
ing to move for a new trial due to the prosecution’s inflamma-
tory statements and conduct. However, Kays does not allege
what issues should have been raised in a motion for new trial
or what grounds he would have had for raising those issues.
More important, there are no allegations explaining why the
motion would have been successful or how he was prejudiced
by trial counsel’s failure to file the motion. See, State v. Davis,
6 Neb. App. 790, 577 N.W.2d 763 (1998) (defendant’s failure
to set forth allegations explaining why motion for new trial
would have been successful or how he was prejudiced by
attorney’s failure to file motion did not justify presumption
of prejudice for purposes of postconviction claim of ineffec-
tive assistance of counsel); State v. McGurk, 3 Neb. App. 778,
532 N.W.2d 354 (1995) (in order to satisfy prejudice prong of
ineffective assistance of counsel analysis, defendant must first
make allegation of nature and effect of requisite prejudice).
Thus, Kays has not alleged sufficient prejudice and his claim
of ineffectiveness of counsel for failing to file a motion for
new trial is without merit.
(iii) Presentence Investigation Report
Kays claims that his trial counsel was ineffective in failing
to discuss the presentence investigation report with him prior
to the time of sentencing.
The record reveals that Kays’ trial counsel was unable to
review the presentence investigation report until the afternoon
of the sentencing hearing due to delays in the report’s being
made available by the probation office. However, counsel did
review the report and, at the sentencing hearing, referenced
information contained in the report. Trial counsel indicated
that he spoke to Kays about the contents of the presentence
Decisions of the Nebraska Court of Appeals
396 21 NEBRASKA APPELLATE REPORTS
investigation report, but Kays did not make any comments at
the sentencing hearing to indicate whether counsel reviewed
the report with him.
Neb. Rev. Stat. § 29-2261(6) (Reissue 2008) provides, in
part, that a court “may permit inspection of the [presentence
investigation] report or examination of parts thereof by the
offender or his or her attorney, or other person having a proper
interest therein, whenever the court finds it is in the best inter-
est of a particular offender.” Thus, the plain language of the
statute does not require an attorney to physically review the
presentence investigation report with a defendant.
Furthermore, even if his trial counsel did fail to review his
presentence investigation report with him, Kays has not alleged
how he was prejudiced by counsel’s actions. Specifically, he
has not alleged how the ultimate outcome of the sentencing
hearing would have been different had he had the opportunity
to review the report with his trial counsel. See State v. Derr,
19 Neb. App. 326, 809 N.W.2d 520 (2011) (defendant could
not show prejudice from trial counsel’s alleged failure to ade-
quately review contents of presentence report with defendant
prior to sentencing hearing, and therefore such failure did not
constitute ineffective assistance of counsel; defendant did not
allege how ultimate outcome of sentencing hearing would have
been different had he had opportunity to review report with
counsel). Thus, this assertion has no merit.
(iv) 13 Jurors
Kays contends that his trial counsel was ineffective in fail-
ing to notice 13 jurors in the selection, deliberation, and poll-
ing of the jury. Having determined earlier in this opinion that
the record does not support Kays’ claim that his verdict was
delivered by a 13-member jury, there is no ineffectiveness
of counsel in this regard. This assignment of error is with-
out merit.
(v) Summary
Having considered Kays’ numerous allegations regarding
the ineffectiveness of trial counsel, we find the majority of
them to be without merit. However, we find that the record on
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 397
Cite as 21 Neb. App. 376direct appeal is insufficient to address Kays’ claims that trial
counsel was ineffective for failing to object to comments made
by the prosecution during closing statements and for failing to
move for a mistrial due to inflammatory statements and con-
duct by the prosecution.
4. Excessive Sentences
[16] Kays contends that due to his advanced age, lack of
criminal history, and ailing health, the cumulative sentences
imposed effectively constitute a sentence of life imprisonment
and, as applied to him, constitute cruel and unusual punish-
ment. In cases where a defendant does not raise a facial chal-
lenge to the constitutionality of the statute regarding his or her
sentencing, but, rather, asserts that the sentence “as applied” to
him or her constitutes cruel and unusual punishment, the chal-
lenge involves the same considerations as a claim of excessive
sentence. See State v. Robinson, 278 Neb. 212, 769 N.W.2d
366 (2009).
Kays was convicted of one count of first degree sexual
assault of a child and two counts of third degree sexual assault
of a child. First degree sexual assault of a child is a Class IB
felony with a mandatory minimum sentence of 15 years’ impris-
onment and a maximum sentence of life imprisonment. See,
Neb. Rev. Stat. § 28-105 (Reissue 2008); § 28-319.01. Kays’
sentence of 15 to 15 years’ imprisonment is the most lenient
sentence of imprisonment that could be imposed by the district
court for this conviction.
Third degree sexual assault of a child is a Class IIIA felony
punishable by up to 5 years’ imprisonment and/or a $10,000
fine. See, § 28-105; § 28-320.01(1) and (3). Kays’ sentences of
20 months’ to 5 years’ imprisonment on each of his convictions
for third degree sexual assault of a child were within the statu-
tory sentencing range.
At the time of the preparation of the presentence investiga-
tion report, Kays was 70 years old, married, and retired. He
has a minimal criminal history consisting of a conviction for
assault and a conviction for driving under the influence, both
having occurred in the early 1970’s. Kays has medical issues,
including having had two heart attacks and a brain injury.
Decisions of the Nebraska Court of Appeals
398 21 NEBRASKA APPELLATE REPORTS
According to a report by Kays’ physician, Kays suffered an
episode of anoxic brain injury in November 2006 and under-
went a prolonged intensive care unit stay requiring mechanical
ventilation. The doctor reported that since that time, Kays has
demonstrated decreased short-term memory, decreased impulse
control, and irritability. His doctor reports that Kays’ diagnosis
would potentially limit his ability to think rationally, recall epi-
sodes, and control his impulses.
According to the presentence investigation report, Kays’
scores on the “Simple Screening Instrument” were in the low
risk range and there is no indication of a problem with sub-
stance abuse or of substance use contributing to this offense.
Kays scored in the low risk range for recidivism, based upon
a combined risk assessment of the “Static 99-R” risk assess-
ment and the “Stable 2007” risk assessment. On the “Vermont
Assessment of Sex Offender Risk,” Kays scored in the high
risk range, with some of the reasons for the high score includ-
ing the age of the victim when the abuse began, a prior convic-
tion for assault, and the level of intrusiveness for the current
offense. Kays’ total score on the level of service/case manage-
ment inventory indicated that he was in the medium-high risk
range to recidivate.
Considering that the sentences imposed are within the appli-
cable statutory sentencing ranges, that the Class IB felony
sentence is the most lenient sentence available, and that Kays
further benefited from the district court’s decision to order the
third degree sexual assault counts to be served concurrently—
and taking into account the seriousness of the offenses for
which Kays was convicted, Kays’ age and health, his minimal
criminal history, and his scores on the risk assessments—we
cannot say the district court abused its discretion in the sen-
tences imposed.
VI. CONCLUSION
Having considered and found Kays’ assignments of error,
including most of his claims of ineffective assistance of trial
counsel, to be without merit, his convictions and sentences
are affirmed. However, we specifically find that the record on
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 399
Cite as 21 Neb. App. 376direct appeal is insufficient to address Kays’ claims that his
trial counsel was ineffective for failing to object to comments
made by the prosecution during closing statements and for
failing to move for a mistrial due to inflammatory statements
and conduct by the prosecution.
Affirmed.
Irwin, Judge, dissenting.
I respectfully disagree with the majority’s conclusion that
the term “disability” as used in Neb. Ct. R. App. P. § 2-105(5)
(rev. 2010) encompasses “situations where a judge has recused
himself or herself due to a conflict of interest.” Such an inter-
pretation, as evidenced by the facts of the present case, defeats
the very purpose of § 2-105(5) and seriously undermines the
sanctity of judicial proceedings and public confidence and trust
in such proceedings.
Although the majority opinion references some actions of
the court reporter that led to this appeal, the majority has
understated the severity of the court reporter’s misconduct. In
this case, appellant’s appellate counsel discovered errors in the
originally created bill of exceptions, including indications that
13 jurors had deliberated and been polled. When he brought
the errors to the attention of the court reporter, she obtained the
bill of exceptions from the court file, removed the file-stamped
cover page of the bill of exceptions, shredded the remaining
pages of the original bill of exceptions, created an entirely
new bill of exceptions, and backdated the newly created bill
of exceptions with help from an employee in the district court
clerk’s office. These actions were all, without question, con-
trary to well-established rules concerning the proper conduct
of a court official.
Appellant brought these matters to the attention of this
court and requested we remand the matter to the district court
for a properly conducted hearing to amend or correct the bill
of exceptions. Appellant’s request was clearly an attempt to
ensure the accuracy and completeness of the record available
to us for our review of the serious criminal matters involved
in this case. We sustained appellant’s motion and remanded
the matter for the district court to amend or correct the bill of
Decisions of the Nebraska Court of Appeals
400 21 NEBRASKA APPELLATE REPORTS
exceptions in accordance with the requirements of § 2-105(5).
However, prior to the hearing, the judge who had conducted
the trial recused herself from the proceedings.
The Nebraska appellate courts have not previously had occa-
sion to discuss § 2-105(5). The rule provides as follows:
The parties in the case may amend the bill of exceptions
by written agreement to be attached to the bill of excep-
tions at any time prior to the time the case is submitted to
the Supreme Court. Proposed amendments not agreed to
by all the parties to the case shall be heard and decided
by the district court after such notice as the court shall
direct. The order of the district court thereon shall be
attached to the bill of exceptions prior to the time the
case is submitted to the Supreme Court. Hearings with
respect to proposed amendments to a bill of exceptions
may be held at chambers anywhere in the state. If the
judge shall have ceased to hold office, or shall be pre-
vented by disability from holding the hearing, or shall be
absent from the state, such proposed amendments shall
be heard by the successor judge, or by another district
judge in the district, or by a district judge in an adjoining
judicial district.
(Emphasis supplied.)
The plain language of the rule makes it clear that the pur-
pose of holding a hearing, presided over by the trial judge, is
to ensure the creation of an accurate record in situations where
the parties cannot reach an agreement about the proposed
amendments or corrections. In such a situation, the trial judge
who presided at trial will be crucial to the process, because that
judge is in the best position to make a determination about the
accuracy of a party’s disputed attempt to amend or correct the
bill of exceptions and will necessarily be in the best position to
exercise judgment about any disputed amendments or correc-
tions and how to most accurately complete the record of what
occurred at trial. A substitute judge who had no prior history
of the case and who was not present during any of the origi-
nal proceedings is necessarily not in a position to make such
determinations as effectively or as accurately. As a result, the
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 401
Cite as 21 Neb. App. 376circumstances in which the rule allows for a substitute judge
are necessarily narrow.
Section 2-105(5) delineates three specific situations in which
a substitute judge may preside over the hearing. Notably, none
of those situations are applicable to the present case. The rule
provides that a substitute judge may preside over the hearing
if the original trial judge has ceased to hold office, is absent
from the state, or is prevented “by disability” from holding
the hearing. A plain reading of these three exceptions, espe-
cially in light of the important role to be played by the judge
presiding over a § 2-105(5) hearing, makes it apparent that
these exceptions are intended to allow for a substitute judge
only when the original trial judge is incapable of conducting
the hearing.
There is no dispute that the use of a substitute judge in this
case was not authorized by either of the first two exceptions in
the rule; the original trial judge continued to hold office and
was not absent from the state. The majority concluded that the
judge was prevented “by disability” from holding the hearing.
However, the record presented does not disclose any disability
that would have prevented the original trial judge from holding
the hearing.
In this case, the trial judge entered an order—on her own
motion—recusing herself from conducting the hearing on the
basis of a “conflict of interest.” There was no motion by any
party, and there was no hearing concerning any alleged conflict
of interest. There is nothing anywhere in the record to suggest
what possible conflict of interest prevented the original trial
judge from conducting the hearing, as she was required to do
under § 2-105(5). The majority simply accepts that there was,
in fact, a conflict of interest (although without any indication
of what it might have been) and then concludes that such a
conflict of interest constitutes a disability under the rule. I can-
not agree.
The majority cites to three authorities to support its conclu-
sion that a conflict of interest should constitute a disability
under this rule. However, none of the cases stand for the
proposition that an entirely undisclosed alleged conflict of
Decisions of the Nebraska Court of Appeals
402 21 NEBRASKA APPELLATE REPORTS
interest constitutes a disability for purposes of a rule like
§ 2-105(5).
The majority cites to In re Complaint Against White, 264
Neb. 740, 651 N.W.2d 551 (2002). The majority does not
explain how that opinion supports its conclusion, and a review
of that opinion demonstrates that it does not. The factual con-
text of the In re Complaint Against White opinion concerned
a county court judge who had been dissatisfied that one of
her opinions had been reversed by the district court and that
the county attorney had not appealed the reversal. The county
court judge injected herself into the proceedings, allegedly
demanded an appeal and provided to a deputy county attorney
legal arguments and authorities in support of an appeal, and
appeared in front of the district court to request the appoint-
ment of a special prosecutor because the county attorney
had declined to file an appeal. In that context, the Nebraska
Supreme Court noted that there was no basis for the appoint-
ment of a special prosecutor under a court rule allowing for
such appointment in the event of absence, sickness, or disabil-
ity of the county attorney. The court concluded that the term
“disability” had been interpreted, in the context of that rule,
to include situations where the county attorney was actually
disqualified to act because of a conflict of interest related to
employment. The majority also cites, and discusses, Stewart v.
McCauley, 178 Neb. 412, 133 N.W.2d 921 (1965). The factual
context of Stewart v. McCauley involved an actual disqualifica-
tion of a prosecutor because of civil representation of one of
the parties.
Both the Supreme Court’s noting in In re Complaint Against
White and the court’s holding in Stewart v. McCauley that the
term “disability” in the context of rules concerning appointing
a special prosecutor includes situations where the county attor-
ney is actually disqualified from performing his or her duties
because of a prior employment conflict of interest are clearly
distinct from the situation in the present case. The use of the
term “disability” in both of those situations clearly related to
an attorney being unable to perform his or her duties as an
advocate on behalf of a party because of an established and
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 403
Cite as 21 Neb. App. 376actual conflict of interest. There is nothing in either case to
suggest that a mere assertion of a conflict of interest, without
one actually existing, would suffice to constitute a disability.
The actual conflict of interest contemplated in that situation is
one that actually does prevent the attorney from performing his
or her role as an advocate.
The role of the judge in a § 2-105(5) hearing is markedly
different, however. The judge is not to be an advocate for either
party, but a neutral and knowledgeable arbiter ensuring the cre-
ation of an accurate appellate record concerning a case that the
judge actually presided over. When the judge presided over the
entire trial without any conflict of interest which prevented her
from fairly judging the case, and without any demonstration or
suggestion of what possible conflict of interest would prevent
her from carrying out that same role to ensure the creation of
an accurate record of the trial, finding a disability is entirely
different and unwarranted.
The majority also cites to Gandy v. State, 27 Neb. 707, 43
N.W. 747 (1889). Although the majority does not discuss the
application of that case, it also involves the notion that if a
prosecutor has an actual conflict of interest which prevents
him or her from performing official duties, that conflict can be
considered a disability for purposes of meriting appointment of
another prosecutor. In that case, the proposition was expressed
in relation to a county attorney being disqualified from pros-
ecuting a criminal defendant whom he had previously repre-
sented in other proceedings. Once again, that kind of actual
conflict of interest which prevents the performance of duties
is clearly a very different situation from one where a judge
declines to preside over a hearing in which it is not apparent
that there is any actual conflict of interest.
Rather than comparing the factual context of the present
case to situations and prior cases wherein prosecutors had
actual conflicts of interest meriting the appointment of special
prosecutors, I would suggest that we should be guided by cases
involving the propriety of appointing a substitute or successor
judge to perform duties that would otherwise be required of a
trial judge.
Decisions of the Nebraska Court of Appeals
404 21 NEBRASKA APPELLATE REPORTS
For example, in Newman v. Rehr, 10 Neb. App. 356, 630
N.W.2d 19 (2001), we were presented with a question about
the authority of a successor judge to render judgment in a case
over which he had not presided and was not familiar. In that
case, the retirement of District Judge Lawrence J. Corrigan
resulted in the use of interim judges prior to District Judge W.
Mark Ashford’s taking office. In one of the cases heard dur-
ing that interim, retired District Judge James A. Buckley heard
the case as an interim judge, but there was no record made of
the hearing conducted by Judge Buckley. After Judge Ashford
took office, he signed the final order in the matter. On appeal,
we held that because Judge Buckley had heard the case and
the witnesses, no other judge could have the degree of famil-
iarity with the case that he had. Consequently, we concluded
that the parties’ stipulation to submit the case to another judge
could not be fairly applied or implemented by any judge other
than Judge Buckley. We held it was reversible error for Judge
Ashford to enter an order based on evidence he had not heard,
and we vacated the judgment.
That case, although in a different factual context, is con-
sistent with the notion that substitution of judges should be
limited and avoided when reasonably possible. The judge who
is familiar with the proceeding and capable of performing
his or her judicial function and in the best position of doing
so should be the one to discharge judicial duties. See, also,
Malony v. Adsit, 175 U.S. 281, 20 S. Ct. 115, 44 L. Ed. 163(1899) (emphasizing that knowledge of what happened at trial
is unique to judge who presided and cannot be brought to judge
who did not participate in trial).
Similarly, in Commonwealth v. Trapp, 396 Mass. 202, 213,
485 N.E.2d 162, 169 (1985), the Massachusetts Supreme Court
discussed appropriate substitution of judges and explained that
it is a matter “of grave concern to the proper administration
of justice.” In that case, the judge who had presided over the
trial had been “absent” during jury deliberations, a substitute
judge had taken questions from the jury and answered them,
and a second substitute judge had taken the jury’s verdict.
Id. The court noted that a Massachusetts rule of criminal
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 405
Cite as 21 Neb. App. 376procedure allowed for the substitution of a judge presiding
over a proceeding in situations where the judge is unable to
proceed “by reason of death, sickness, or other disability.” See
Mass. R. Crim. P. 38(a) (2006). The court noted that the rule
is mandatory and that given the language of the rule, except
for ministerial acts such as the taking of a verdict, the original
judge should ordinarily be available throughout the process to
“ensure the integrity of the trial process.” Commonwealth v.
Trapp, 396 Mass. at 214, 485 N.E.2d at 170.
The Massachusetts court also discussed Durden v. The
People, 192 Ill. 493, 61 N.E. 316 (1901), and State v. Gossett,
11 Wash. App. 864, 527 P.2d 91 (1974), both involving substi-
tution of judges. In Durden v. The People, the Illinois Supreme
Court held that the power of judges did not include the right to
delegate a duty involving the exercise of judgment and appli-
cation of legal knowledge and judicial deliberation to facts
known to the first judge and not to the second judge. Along
those same lines, in State v. Gossett, the Washington Court of
Appeals found it to be error when a substitute judge, over the
objection of the defendant, instructed the jury in response to
jury questions.
The Massachusetts, Illinois, and Washington cases are all
consistent in the notion that judicial integrity and confidence
in the sanctity of the judicial proceedings dictate that a judge
who presides over a judicial proceeding and gains important
knowledge of the proceedings should not delegate to a substi-
tute judge, who is unfamiliar with the case, judicial duties that
depend on discretion and exercise of judgment concerning the
proceedings known to the original judge and not to the substi-
tute. Such substitution should be allowed only in narrow and
unusual circumstances, and rules governing such substitution
should be narrowly and strictly construed.
Section 2-105(5) is a rule which governs such substitu-
tion of judges and which, as a result, should be narrowly and
strictly construed. The rule indicates that a substitute judge
may be necessary at a hearing to properly amend or correct a
bill of exceptions only where the original judge is incapable
of carrying out his or her duties, either because that judge
Decisions of the Nebraska Court of Appeals
406 21 NEBRASKA APPELLATE REPORTS
is no longer serving on the bench, is physically absent from
the jurisdiction, or is suffering some kind of “disability” that
actually prevents the discharge of duties. Here, none of those
narrow situations are apparent on the record presented to this
court, where the judge inexplicably and on her own motion
recused herself.
The majority overlooks the fact that there is no explana-
tion of what possible conflict of interest might have prevented
this trial judge from performing her duties to ensure that an
accurate record be presented in this serious criminal matter.
The majority simply concludes that because the judge, on her
own motion and without creating any record, did recuse her-
self, she “was, in fact, prevented by a ‘disability’ from hold-
ing the hearing.” The majority then also focuses on the bill of
exceptions that was created as being “properly certified” by a
different judge—one who had no prior history or involvement
with the actual trial for which this bill of exceptions was the
official record.
Court records are sacrosanct. Accuracy in the judicial
review process, and public confidence and trust in the process,
depends mightily on the accuracy and trustworthiness of the
record presented to the appellate court. As the majority points
out, if the rules and procedures governing the creation of that
record are all properly followed, the record imports absolute
verity when the record comes to an appellate court. See, State
v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994); Wonderling
v. Conley, 182 Neb. 446, 155 N.W.2d 349 (1967). In State v.
Dyer, supra, the Supreme Court was presented with an asser-
tion by the parties on appeal that there was an error in the
record and the court noted that it could decide the case only
on the record presented, because amendments or corrections
have to be made in the district court, pursuant to § 2-105(5). It
is ironic that the majority rejects appellant’s complaints about
the record in this case on the basis of State v. Dyer when the
issues before us arise out of appellant’s actually doing what
was supposed to be done, seeking proper amendment under
§ 2-105(5), but having a trial judge who delegated her duties
to a substitute judge. The absolute verity afforded the record
Decisions of the Nebraska Court of Appeals
STATE v. KAYS 407
Cite as 21 Neb. App. 376cannot be afforded when the procedures for creation of an
accurate record were not complied with because of the actions
of an official court reporter and the trial judge. See Walton
v. Southern Pac. Co., 53 F.2d 63 (1931) (presumptions of
regularity and unimpeachability of trial record not applicable if
record intrinsically defective).
What happened in this case presents a serious undermin-
ing of the sanctity of judicial proceedings and public confi-
dence in them. The court reporter in this case acknowledged
having intentionally violated rules designed to ensure the
accuracy and proper preparation of the court record in a
criminal prosecution involving very serious charges of egre-
gious conduct. When the court reporter was notified of errors
in the record, she obtained the bill of exceptions from the
court file, removed the file-stamped cover page of the bill
of exceptions, shredded the remaining pages of the original
bill of exceptions, created an entirely new bill of exceptions,
and backdated the newly created bill of exceptions with help
from an employee in the district court clerk’s office. When
this misconduct was brought to the attention of this court, we
specifically remanded the matter for a hearing in compliance
with § 2-105(5), which provides a procedure for preserv-
ing the sanctity of the record and for ensuring the accuracy
of amendments and corrections to the record. That process
required the trial judge, if able to do so, to preside over the
hearing. She did not do so, and there is no indication in our
record of why.
As a result, an evidentiary hearing was eventually con-
ducted in front of a judge who had no familiarity with the
trial proceedings and who had no basis of knowledge to prop-
erly determine whether the amendments and corrections to
be made were accurate. At that hearing, appellant was repre-
sented by appellate counsel—who was different counsel than
appellant’s trial counsel—and the State was represented by
one of the two attorneys from the Douglas County Attorney’s
office who had prosecuted the matter at trial. Aside from
appellant and the prosecutor, the only other person present
in the courtroom during this hearing who had been present
Decisions of the Nebraska Court of Appeals
408 21 NEBRASKA APPELLATE REPORTS
during the trial was the offending court reporter—and the
court reporter was accompanied by her privately retained
legal counsel.
The offending court reporter was the sole witness at the
hearing. She acknowledged each action set forth above. In
defending or rationalizing her actions, she testified under oath
that although she had served two Douglas County District
Court judges, she was not aware before this case that shred-
ding a court record and then backdating a newly created one
was improper. Although the record indicates that her original
stenographic notes and original audio recording were in exis-
tence, they were never offered or presented to the substitute
judge. Without any prior knowledge or history of what actu-
ally happened at trial, and without being offered or reviewing
the original notes or audio, the substitute judge found that the
revised bill of exceptions corrected all mistakes. It is entirely
possible that the record presented to us now is accurate in
every way. But there is no way of knowing that. What we do
know is that serious misconduct concerning its preparation
occurred after errors in the original bill of exceptions were
discovered. What we also know is that if the process set forth
in § 2-105(5) had been followed, the original trial judge could
have determined that the current record is an accurate record
of the trial she presided over. I disagree with the majority’s
conclusion that allowing a substitute judge to preside over the
§ 2-105(5) hearing without any actual record or showing of a
disability on the part of the original judge can be overlooked.
I would remand the matter to the district court for a properly
conducted § 2-105(5) hearing by the original trial judge. The
sanctity of judicial records and public confidence in the judi-
cial process warrant this.