State v. Stone ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. STONE
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
HAROLD L. STONE, APPELLANT.
Filed September 1, 2020. No. A-19-642.
Appeal from the District Court for Thayer County: VICKY L. JOHNSON, Judge. Affirmed.
Mark E. Rappl for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
MOORE, Chief Judge, and RIEDMANN and ARTERBURN, Judges.
ARTERBURN, Judge.
I. INTRODUCTION
This is a postconviction appeal. In 2016, Harold. L. Stone was convicted by a jury of four
counts of first degree sexual assault of a child, each a Class IB felony, and one count of child
abuse, a Class IIIA felony. Stone was sentenced to imprisonment for a mandatory minimum term
of 15 years and maximum term of 20 years on each sexual assault conviction, and to a term of 4
to 5 years’ imprisonment on the child abuse conviction, with two of the sexual assault sentences
to be served consecutively and the remaining sentences to be served concurrently. On direct appeal,
the Nebraska Supreme Court affirmed Stone’s convictions and sentences. State v. Stone, 298 Neb.
53, 902 N.W.2d 197 (2017).
Stone now appeals the decision of the district court for Thayer County which denied his
motion for postconviction relief without an evidentiary hearing. In this appeal, Stone alleges a
variety of errors concerning the court’s denial of relief related to his assertions of ineffective
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assistance of his trial and appellate counsel. Stone also alleges that the district court erred in finding
that he was not denied due process during the original proceedings. For the reasons set forth herein,
we affirm the decision of the district court to deny Stone’s motion for postconviction relief without
an evidentiary hearing.
II. BACKGROUND
In June 2016, Stone was charged by information with five counts of first degree sexual
assault of a child and one count of child abuse. The amended information alleged Stone sexually
penetrated the victim, H.W., on five separate occasions in 2014 and 2015, at a time when H.W.
was under the age of 16 and Stone was over the age of 25. Stone entered pleas of not guilty, and
the matter proceeded to trial.
H.W. was adopted by her parents when she was 9 months old after suffering severe abuse
and neglect for the first few months of her life. H.W. was subsequently diagnosed with fetal alcohol
effects and reactive attachment disorder. H.W.’s mother, Lynne, testified that H.W. had behavioral
problems as a result of her diagnoses and she required a great deal of structure, routine, and
oversight. H.W.’s therapist elaborated on H.W.’s diagnosis of reactive attachment disorder when
she testified that children with reactive attachment disorder can be manipulative and great
“storytellers.” In addition, they can be apt to form inappropriate attachments with older adults, to
be hypersexual, and to fail to anticipate the consequences of their actions. Children with reactive
attachment disorder can be difficult to parent and are vulnerable to abuse.
H.W. was homeschooled after her sixth grade year so that Lynne could more closely
monitor H.W. At home, H.W. was not permitted to have her own cellular telephone, nor was she
permitted to have any unsupervised access to a computer.
During the spring of 2014, when H.W. was 14 years old, H.W. and her family met Stone
at church. Shortly thereafter, H.W. began assisting Stone in his nearby garden, greenhouse, and
specialty store. Then, in August, Stone approached Lynne regarding him helping to homeschool
H.W. In particular, Stone indicated that he could help H.W. with science and math as a result of
his background. Lynne agreed.
At trial, H.W. testified that when Stone started homeschooling her, he began making
comments of a sexual nature, including telling H.W. that she needed “sex education.” In addition,
despite Lynne’s directives, Stone gave H.W. her own cellular telephone and access to an iPad and
helped H.W. to set up her own email and social media accounts.
H.W. testified that on August 20, 2014, which was Stone’s birthday, Stone kissed her on
the neck. H.W. indicated that she told Stone, “No.” However, during the next few weeks, Stone
continued to act sexually toward H.W., including repeatedly taking her clothes off and touching
her breasts and touching both outside and inside of her vagina. H.W. described how Stone would
become upset with himself when he was unable to perform sexually during these instances.
On September 24, 2014, which was H.W.’s 15th birthday, she and Stone planned to spend
the day together. H.W. wanted to get her hair done, get her nose pierced, and go to a restaurant to
eat. Stone told H.W. that they were also going to have sexual intercourse that day. H.W. testified
that she did not feel that she had a choice about having sex with Stone, especially when he showed
her that he had purchased condoms. When H.W. and Stone returned to Stone’s house that
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afternoon, Stone gave H.W. an alcoholic beverage to drink while he took “Viagra.” They both
went upstairs to the guest room where they got undressed. H.W. described touching Stone’s erect
penis and him touching her bare chest and inside of her vagina. H.W. testified that they performed
fellatio and cunnilingus on each other and then had penile-vaginal sexual intercourse. H.W.
described that Stone ended up not wearing a condom, but did ejaculate.
After having sexual intercourse with Stone, H.W. went to Stone’s store for a little while.
When she returned to Stone’s house, they had sexual intercourse again. This time, she remembered
him ejaculating on her right leg. H.W. testified that her father then came to pick her up from
Stone’s house.
H.W. testified that her sexual relationship with Stone continued on a regular basis through
December 2014. She described two specific instances which occurred during the fall and winter
of 2014. During these instances, Stone would make her an alcoholic beverage to drink and they
would engage in various sexual acts, including penile-vaginal sex. H.W. also described Stone
taking pictures of her in his bed. H.W. explained that Stone took one of the pictures while he was
straddling her in his bed.
Stone left Nebraska for much of the month of January 2015, but when he returned, H.W.
testified that their sexual relationship resumed. H.W. testified that her last sexual experience with
Stone occurred in February 2015, when Stone drove her and her sister to an educational conference
in Omaha, Nebraska. The night before the conference, H.W. described talking with Stone over
“facetime” while she was in the bathtub. Evidence at trial revealed that Stone had taken a
screenshot of H.W. during this telephone call which depicted her in the bathtub. This photograph
was found on his electronic devices.
On the way home from the conference, H.W. and Stone believed that H.W.’s sister was
asleep in the backseat of the vehicle. Stone began touching H.W. under her shirt and bra. He then
put his hand in her pants and put his fingers inside of her vagina. When he was done, H.W. and
Stone held hands with their fingers interlocked.
H.W. testified that her sexual relationship with Stone ended because Lynne would no
longer allow her to see Stone. H.W. indicated that at that time, she believed she loved Stone and
that they were going to have a future together. A few months after their sexual relationship ended,
however, H.W. disclosed that Stone had been sexually abusing her.
While H.W.’s testimony was the only direct evidence of the sexual abuse, there was other
evidence presented at trial which corroborated her account of her relationship with Stone. For
example, in an email sent from H.W. to Stone the night before H.W.’s birthday, H.W. wrote,
“Hair[,] Piercing[,] Massage[,] Eat[,] Victoria Secret[,] Condoms[, and] YADA YADA YADA[.]”
Within minutes, Stone responded, “Got it! Good night!” In December 2014, Lynne found a card
written by H.W. to Stone. In the card, H.W. had written, “Can[’]t wait till I[’]m 18 because its
Legal and etc.” When Lynne confronted Stone about the card, Stone wanted to see the card and
then took it from Lynne and did not return it.
Inappropriate photographs taken of H.W., some with one of Stone’s electronic devices,
were found saved on Stone’s computer. These photographs included two images of H.W. naked in
Stone’s bed covered only by a sheet.
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H.W.’s sister testified about her time with H.W. and Stone at the educational conference
in February 2015. She testified that she observed Stone tell H.W. he loved her, hug H.W., and kiss
H.W. on the top of her head. She admitted that she had fallen asleep on the ride home from the
conference, but when she woke up, she observed H.W. and Stone holding hands with each other
with their fingers interlocked.
Lynne testified regarding her observations of H.W. and Stone as well. She indicated that
she had some concerns regarding Stone’s relationship with H.W. early on. However, these
concerns increased when Stone sent Lynne a text message on October 2, 2014, at 1:42 in the
morning. The text message said:
Here is when you know that it is on the edge of being obsessive. . . . You wake up in the
middle of the night in a hotel and scramble to put on your clothes because you got to take
[H.W.] home. . . . Until [your wife] reminds you that you are in Ogallala, and there is no
way [H.W.] could be here.”
Lynne testified that around the same time that she received that text message from Stone,
she started going with H.W. to help in Stone’s store. While at the store, Lynne observed Stone and
H.W. whispering together. In addition, they would regularly find excuses to leave alone together,
despite Lynne’s protests. Lynne explained that on multiple occasions, Stone and H.W. indicated
that they were going to take the composting to the greenhouse, but when they returned awhile later,
the composting was still in the back of Stone’s truck.
Lynne testified that in late January 2015, after Lynne had told Stone that he could no longer
be alone with H.W., Stone “begged and pleaded” with Lynne to sign her parental rights to H.W.
over to Stone. In February 2015, after Lynne had cut off all contact between H.W. and Stone, Stone
continued to try and contact H.W.
Stone testified in his own defense. He denied ever having sexual intercourse with H.W. He
admitted that H.W. would talk to him about her sexual relationships with other boys and that, as a
result, he talked with H.W. about safe sex practices. Stone also denied taking inappropriate
photographs of H.W. He indicated that he was not even home during the time one of the
photographs had been taken. While he was not sure how the images got onto his computer, he did
testify that he knew of the pictures’ existence prior to the police investigation. Stone indicated that
in January 2015, he found “a cache of very inappropriate images on [his] computer.” He speculated
that H.W. put them on the computer because she had access and his permission to use his electronic
devices.
Ultimately, the jury convicted Stone of four counts of first degree sexual assault of a child
and one count of child abuse. The jury acquitted Stone of one of the counts of first degree sexual
assault of a child alleged in the information.
As we mentioned above, Stone appealed from his convictions. At the time of this appeal,
Stone had the same counsel as during the trial. As such, he did not allege any claims of ineffective
assistance of trial counsel in his direct appeal. Rather, he alleged a challenge to the constitutionality
of the statute which imposed a mandatory minimum prison term for convictions of first degree
sexual assault of a child. In addition, he argued the sentences imposed upon him by the district
court were excessive. The Supreme Court affirmed Stone’s convictions and sentences. See State
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v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017). Specifically, the court held that Stone had failed
to preserve for its review his constitutional challenge and that the sentences imposed by the district
court were not unreasonable or excessive. Id.
In October 2018, Stone filed a verified motion seeking postconviction relief. In the motion,
he alleged numerous claims of ineffective assistance of trial and appellate counsel. The State filed
a motion to dismiss the verified motion. Ultimately, the district court denied Stone’s verified
motion without an evidentiary hearing. The court found that counsel’s performance was not
deficient at the trial or appellate level. The court also found that given the totality of the evidence
presented at trial, even if other evidence was offered or available, there was not a reasonable
probability that the result of the trial would have been different.
Stone appeals from the district court’s order here.
III. ASSIGNMENT OF ERROR
Stone generally contends that the district court erred in denying him an evidentiary hearing
on the issues raised in his motion for postconviction relief. We note that Stone does not assign
error to the denial of every claim made in his petition. We address those claims to which error is
specifically assigned and argued in his brief.
IV. STANDARD OF REVIEW
In appeals from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirmatively show that the defendant is
entitled to no relief. State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).
V. ANALYSIS
Stone contends that the district court erred in denying him an evidentiary hearing on the
issues raised in his motion for postconviction relief. As we previously noted, in Stone’s motion for
postconviction relief, he raised numerous allegations of ineffective assistance of trial and appellate
counsel. Before turning to Stone’s specific claims on appeal, we review the general principles
governing postconviction actions asserting claims of ineffective assistance of counsel.
Postconviction relief is a very narrow category of relief, available only to remedy
prejudicial constitutional violations that render the judgment void or voidable. State v. Haynes,
299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on other grounds, State v. Allen, 301 Neb. 560,
919 N.W.2d 500 (2018). On appeal from the denial of postconviction relief without an evidentiary
hearing, the question is not whether the movant was entitled to relief by having made the requisite
showing. Instead, it must be determined whether the allegations were sufficient to grant an
evidentiary hearing. Id.
The allegations in a motion for postconviction relief must be sufficiently specific for the
district court to make a preliminary determination as to whether an evidentiary hearing is justified.
Id. In a proceeding under the Nebraska Postconviction Act, the application is required to allege
facts which, if proved, constitute a violation or infringement of constitutional rights, and the
pleading of mere conclusions of fact or of law is not sufficient to require the court to grant an
evidentiary hearing. State v. Haynes, supra. An evidentiary hearing must be granted when the facts
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alleged, if proved, would justify relief, or when a factual dispute arises as to whether a
constitutional right is being denied. Id.
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 actually prejudiced the
defendant’s defense. State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018). A court may address
the two prongs of this test, deficient performance and prejudice, in either order. State v.
Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
In order to establish a right to postconviction relief based on a claim of ineffective
assistance of counsel, the defendant has the burden first to show that counsel’s performance was
deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary training and
skill in criminal law in the area. State v. Haynes, supra. In determining whether trial counsel’s
performance was deficient, courts give counsel’s acts a strong presumption of reasonableness.
State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014). An appellate court will not judge an
ineffectiveness of counsel claim in hindsight. State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404
(2011). We must assess trial counsel’s performance from counsel’s perspective when counsel
provided the assistance. Id. When reviewing claims of ineffective assistance, we will not
second-guess trial counsel’s reasonable strategic decisions. Id.
Next, the defendant must show that counsel’s deficient performance prejudiced the defense
in his or her case. State v. Haynes, supra. To establish the prejudice prong of 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. See State
v. Schwaderer, supra. A reasonable probability does not require that it be more likely than not that
the deficient performance altered the outcome of the case; rather, the defendant must show a
probability sufficient to undermine confidence in the outcome. State v. Custer, 298 Neb. 279, 903
N.W.2d 911 (2017).
We now turn to Stone’s specific allegations of ineffective assistance of counsel. We divide
Stone’s allegations into those that occurred prior to trial, those that occurred during the trial, and
those that occurred on direct appeal.
1. PRETRIAL INVESTIGATIONS AND TRIAL PREPARATION
(a) Failure to File Motion for Change in Venue
Stone alleges his trial counsel provided ineffective assistance by failing to file a motion for
a change in venue. Specifically, Stone alleges that counsel should have requested a change in venue
due to both the pretrial publicity generated about the case in Thayer County and the “prominence”
of H.W.’s family in Thayer County. Brief for appellant at 19. Stone asserts that “it was impossible
for [him] to have a fair trial” there. Id. at 20. Stone contends that he asked trial counsel to file a
motion for a change of venue, but counsel refused to do so based upon the cost.
Juror exposure to information about a defendant’s prior convictions or to news accounts of
the crime with which he is charged does not alone presumptively deprive the defendant of due
process. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009). A court will normally not
presume unconstitutional partiality because of media coverage, unless the record shows a barrage
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of inflammatory publicity immediately prior to trial amounting to a huge wave of public passion
or resulting in a trial atmosphere utterly corrupted by press coverage. Id. The quantum of news
coverage is not dispositive. Id. Even the community’s extensive knowledge about the crime or the
defendant through pretrial publicity is insufficient in itself to render a trial constitutionally unfair
when the media coverage consists of merely factual accounts that do not reflect animus or hostility
toward the defendant. Id.
Stone provided no examples of inflammatory news coverage so egregious that it corrupted
the trial atmosphere. In addition, he provided no specific examples of bias outside of his own
generalized assertions that H.W.’s family was well known in the area and he was not. More
significantly Stone does not allege that any of the jurors who actually sat on his case were biased
either against him or in favor of H.W. Essentially, Stone has failed to sufficiently demonstrate that
had his trial counsel filed a motion for a change in venue, that the motion would have been
successful. As a result, the district court did not err in denying Stone an evidentiary hearing on this
ground.
(b) Failure to File Motion to Suppress
At trial, the State offered into evidence exhibit 99, a journal which had been authored by
Stone and seized by police during a search of his home. The journal included notes about Stone’s
garden work, to do lists, and recipes. In addition, it included writings about H.W., particularly
writings about H.W.’s personality, behaviors, and Stone’s efforts to help her. At one point in the
journal, Stone writes, “Is [H.W.] ‘in love’ with me. She is in love with someone who was willing
to reach through the nastiness and see her, play with her, take her seriously.” Stone indicated that
H.W. spoke with him about her sexual experiences and while he listened, he would quickly change
the topic to something work related. He also indicated that H.W. would initiate conversations about
having a sexual relationship with Stone, but he would not engage with her.
Later in the journal, Stone wrote about his struggles after H.W.’s mother would no longer
permit him to see H.W. or herself. In writing on this subject, Stone expresses a confusion about
why his relationship with them had to end. He appears to deny having any sort of inappropriate
relationship with H.W. The journal indicates that Stone suffered from frequent anxiety attacks.
In his motion for postconviction relief and in this appeal, Stone alleges that his trial counsel
provided ineffective assistance when he failed to file a motion to suppress the journal. Stone asserts
that the journal seized by law enforcement during the search of his home was outside the scope of
the search warrant and that, had counsel filed a motion to suppress, the journal would not have
been admitted as evidence at trial. Stone further asserts that the journal was prejudicial and denied
him the right to a fair trial.
Upon our review, we conclude that Stone is not entitled to an evidentiary hearing on this
ground. First, we note that Stone has failed to provide any case law or other support for his
conclusory suggestion that a motion to suppress the journal would have been successful. In its
order denying Stone’s motion for postconviction relief without an evidentiary hearing, the district
court found “that Nebraska law allows admission of evidence if the officers are acting under a
warrant and rely on it in good faith.” In his brief on appeal, Stone argues that “the good faith
exception is inapplicable to the present case because law enforcement was not relying upon a
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mistake or error made by the magistrate.” Brief for appellant at 19. However, he cites to no case
law to support his generalized assertion.
Even if we were to find that counsel provided deficient performance when failing to file a
pretrial motion to suppress the journal, Stone has failed to demonstrate how he was prejudiced by
the admission of this evidence. He merely asserts that the journal was “prejudicial” to his defense,
but does not explain how. In our review of the journal, there is nothing in the journal which overtly
demonstrates that Stone engaged in a sexual relationship with H.W. To the contrary, Stone denies
having such a relationship multiple times in the journal. Stone’s musings about H.W. relate more
to his desire to help H.W. with her behavioral problems, her home life, and her education. Stone
testified to all of this during the trial. Because Stone cannot demonstrate any prejudice as a result
of the admission of the journal into evidence, he is not entitled to an evidentiary hearing on this
ground.
(c) Failure to File Daubert/Schafersman Motion Regarding
Admissibility of Expert Testimony
At trial, the State called Dr. Barbara Sturgis to testify during its case in chief. Sturgis is a
psychologist who has specialized training in dealing with victims of child sexual assault. She has
previously been certified as an expert witness in the area of child sexual assault in Nebraska courts
at least 17 times, including on the topics of how children respond to sexual abuse, how and when
children disclose sexual abuse, and how to appropriately conduct interviews of victims of child
sexual abuse. Sturgis testified that there is no “typical” reaction to sexual assault in children. She
also testified that when children disclose sexual assault, they often do not provide all of the details
at first.
In his motion for postconviction relief and in this appeal, Stone alleges that his trial counsel
provided ineffective assistance of counsel when he failed to “file a Daubert/Schafersman motion
to determine the admissibility of” Sturgis’ testimony. Brief for appellant at 20. Specifically, Stone
alleges that had a hearing been held on such a motion, the district court would have become aware
that the research relied upon by Sturgis was “conducted six or more years prior to trial” and that
during the hearing evidence could have been adduced regarding the initial or continued validity of
those studies. Id. Stone also alleges that evidence could have been adduced regarding how H.W.’s
reactive attachment disorder diagnosis may have affected Sturgis’ opinions. Upon our review, we
do not find that Stone is entitled to an evidentiary hearing on this ground.
Under the Daubert/Schafersman jurisprudence, the trial court acts as a gatekeeper to ensure
the evidentiary relevance and reliability of an expert’s opinion. State v. Edwards, 278 Neb. 55, 767
N.W.2d 784 (2009). This gatekeeping function entails a preliminary assessment of whether the
reasoning or methodology underlying the testimony is valid and whether that reasoning or
methodology properly can be applied to the facts in issue. Id. Once the validity of the expert’s
reasoning or methodology has been satisfactorily established, any remaining questions regarding
the manner in which that methodology was applied in a particular case will generally go to the
weight of such evidence. State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003).
In evaluating the admissibility of expert scientific testimony, a trial judge considers a
number of factors. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012). These factors include
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whether a theory or technique can be (and has been) tested; whether it has been subjected to peer
review and publication; whether, in a particular technique, there exists a high known or potential
rate of error; whether standards exist for controlling the technique’s operation; and whether the
theory or technique enjoys general acceptance within a relevant scientific community. Id. These
factors are not exclusive or binding; different factors may prove more significant in different cases,
and additional factors may prove relevant under particular circumstances. Id.
In his brief on appeal, Stone has failed to affirmatively allege which of the factors
delineated above would have warranted excluding the exclusion of Sturgis’ testimony. Instead,
Stone merely alleges that the research and studies relied upon by Sturgis are around 6 years old.
He then concludes that based upon the age of the studies, there may have been more recent research
which may have contained updated information. Such conclusory allegations are not sufficient to
warrant an evidentiary hearing on this ground.
A Daubert/Schafersman motion addressing the content of Sturgis’ testimony would not
have resulted in exclusion. In her testimony, Sturgis stated that she has been certified as an expert
witness in the area of child sexual assault in Nebraska courts at least 17 times. Expert testimony
on the topic of how children react to sexual assault and when they disclose has been found to be
admissible in our courts. We addressed this issue in State v. McCurdy, 25 Neb. Ct. App. 486, 908
N.W.2d 407 (2018). There we stated:
The primary purpose of Sturgis’ testimony, as limited after McCurdy’s pretrial
motion in limine, was to provide the jury with background concerning child victims and
how they differ from adult victims. The Nebraska Supreme Court has previously approved
of the use of the type of testimony given by Sturgis. See, e.g., State v. Fleming, 280 Neb.
967, 792 N.W.2d 147 (2010). The court has noted that this type of evidence is helpful
because “‘“[f]ew jurors have sufficient familiarity with child sexual abuse to understand
the dynamics of a sexually abusive relationship,” and “the behavior exhibited by sexually
abused children is often contrary to what most adults would expect.”’” Id. at 973, 792
N.W.2d at 154, quoting State v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992).
State v. McCurdy, 25 Neb. App. at 500, 908 N.W.2d at 418.
It is clear that the subject matter of Sturgis’ testimony was relevant and would not have
been precluded in a Daubert/Schafersman hearing. The issue raised goes to the weight, not the
admissibility of Sturgis’ testimony. We note that Sturgis was thoroughly cross-examined by trial
counsel regarding the studies and research she relied upon in formulating her opinions. We further
note that both the trial and appellate courts of this state have recognized Sturgis to be qualified to
give expert testimony on these issues. The Supreme Court has previously held that trial courts need
not reinvent the wheel each time that specialized evidence is adduced. State v. Casillas, 279 Neb.
820, 782 N.W.2d 882 (2010). Instead, once a Nebraska trial court has actually examined and
assessed the reliability of a particular scientific wheel under Daubert, and its determination has
been affirmed on appeal, then other courts may simply take judicial notice and ride behind. State
v. Casillas, supra.
Finally, we note that a Daubert/Schafersman hearing would not have been warranted based
upon Stone’s assertion that Sturgis’ opinion may have been affected by H.W.’s reactive attachment
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disorder diagnosis. Again,the application of Sturgis’ reasoning and methodology to the facts of
this case go to the weight of Sturgis’ testimony, not to the admissibility. Trial counsel had the
opportunity and did question Sturgis regarding the effect of H.W.’s diagnosis on Sturgis’ opinions.
(d) Failure to Obtain Material Evidence
(i) Stone’s Cellular Telephone Records
In his brief on appeal, Stone alleges that his trial counsel provided ineffective assistance
when he failed to subpoena or otherwise obtain Stone’s cellular telephone records. Stone asserts
that these records would have established that he was not at his house at the time when the
inappropriate photographs of H.W. laying in his bed were taken. And, as a result, the records would
have established that he had not taken the photographs. We note that in his motion for
postconviction relief, Stone only alleged that the records may establish whether he was not at home
when the photographs were taken. His allegation was equivocal. He did not affirmatively assert
that he was not at home during these times. Upon our review, we find that Stone is not entitled to
an evidentiary hearing on this issue.
We further note that even if Stone’s cellular telephone records demonstrated that Stone’s
cellular telephone was not located at Stone’s house when the photographs were taken, such
evidence does not definitively demonstrate that Stone was not at his house when the photographs
were taken. The records would also not explain how or why the photographs were later saved on
Stone’s other electronic devices. Ultimately, we conclude that given the totality of the evidence
presented at trial, the admission into evidence of Stone’s cellular telephone records would not have
changed the result of the trial. The records would not have definitively contradicted H.W.’s
allegations of sexual assault and would not have adequately rebutted the array of inappropriate
photographs of H.W. found in Stone’s possession. Stone cannot show that he was prejudiced by
counsel’s failure to obtain and offer into evidence the cellular telephone records.
(ii) Electronic Devices in H.W.’s Home
One of the photographs of H.W. in Stone’s bed was taken with a specific electronic device
that was not located in Stone’s possession. Stone alleges that his trial counsel provided ineffective
assistance in failing to investigate whether that specific electronic device was in the possession of
H.W. and her family. He contends that if the device was found in the possession of H.W. or her
family, such information would establish that someone else was responsible for taking one of the
photographs of H.W. in Stone’s bed. Upon our review, we find that Stone was not entitled to an
evidentiary hearing on this issue.
As we discussed above, the evidence presented at trial suggested that one of the
photographs of H.W. taken in Stone’s bed was taken with Stone’s cellular telephone. In addition,
the evidence also established that both of the photographs of H.W. in Stone’s bed were uploaded
to Stone’s laptop computer. Stone’s assertion that the electronic device which took the other
photograph of H.W. in his bed belonged to H.W.’s family is mere conjecture. He points to no
evidence which would suggest that the device would have been found at H.W.’s residence had
counsel attempted to locate the device. Moreover, even if the device was located at H.W.’s
residence, that would not definitively demonstrate that Stone did not take the photograph of H.W.,
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as Stone alleges. Locating the device at H.W.’s residence would also not explain how the
photograph was downloaded and saved on Stone’s laptop. Given all the evidence presented at trial,
we do not believe that had counsel investigated the ownership of the electronic device, it would
have changed the outcome of the proceedings.
(iii) Presence of Ironing Board in Stone’s Bedroom
At trial, there was some discussion of whether one of the photographs taken of H.W. laying
in Stone’s bed was taken by another person present in Stone’s bedroom or whether the photograph
was taken using an automatic photo timer, such that H.W. could have taken the photograph herself.
Photographs of Stone’s bedroom, taken months after the sexual abuse concluded, showed that
there were no shelves, tables, or desks present in the bedroom to assist with the positioning of the
phone had the automatic photo timer had been used.
On appeal, Stone alleges that he informed his trial counsel that at the time the photograph
of H.W. was taken, there was an ironing board located in his bedroom “which could have allowed
for the taking of a self-imposed timer photo.” Brief for appellant at 18. Stone alleges that his trial
counsel was ineffective for failing to present this information to the jury. We find that Stone is not
entitled to an evidentiary hearing on this issue. Stone testified in his own behalf at trial. He
specifically denied taking the photographs of H.W. We cannot see how any further testimony that
he may have given as to an alleged mechanism for how H.W. could have produced the photograph
herself would have made his denial more believable. Trial counsel’s decision not to have Stone
elaborate on his theory of how the photograph could have been taken does not constitute deficient
performance on the part of his trial counsel. Nor can Stone show that said decision was prejudicial
to his defense.
(e) Failure to Depose State’s Expert Witness
In his motion for postconviction relief and in this appeal, Stone alleges that his trial counsel
was ineffective in failing to depose Sturgis prior to trial. Specifically, he alleges that had counsel
deposed Sturgis, he would have discovered that she relied on two books as the bases for her
opinions and would have discovered that the books “were at least six years old at the time of trial.”
Brief for appellant at 14. Stone alleges that such information would have called “the reliability of
[Sturgis’] testimony into serious question.” Id.
Upon our review of the record, we determine that despite counsel’s failure to depose
Sturgis prior to trial, he adequately cross-examined her regarding the accuracy and limitations of
the studies that she relied on in forming her opinions. Counsel also questioned Sturgis regarding
the application of the studies to specific victims of abuse. Given this cross-examination, it is not
clear what additional information counsel could have obtained by deposing Sturgis. As the district
court noted, “a failure to depose does not mean that the lawyer was unaware of the statements of
the witnesses.” We conclude that Stone cannot show he was prejudiced by counsel’s failure to
depose Sturgis.
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2. TRIAL
(a) Failure to Request Record to Include Voir Dire
At trial, voir dire proceedings were not recorded and, as a result, those proceedings are not
included in our record. On appeal, Stone alleges that his trial counsel was ineffective by failing to
request that voir dire be put on the record. Specifically, he asserts that because voir dire was not
included in the record, he was not able “to have a meaningful appellate review of voir dire.” Brief
for appellant at 21.
In State v. Jones, 246 Neb. 673, 675, 522 N.W.2d 414, 415 (1994), the Supreme Court held
that its court rules require the transcription of voir dire only “when requested by counsel, any party,
or the court.” See, also, Neb. Ct. R. § 2-105(A)(2) (rev. 2010). The court then reasoned that because
recording voir dire is not mandatory by the court rules, “the failure to require recordation cannot
be said, ipso facto, to constitute negligence or inadequacy of counsel.” State v. Jones, 246 Neb. at
675, 522 N.W.2d at 415-16.
Given that a verbatim record of voir dire is not mandatory and given Stone’s generalized
claim of ineffective assistance of counsel in this regard, we find that Stone has failed to prove his
trial counsel’s performance was deficient, and he has failed to prove any prejudice from the fact
that voir dire was not recorded. Stone has simply not explained with any specificity what occurred
during voir dire which would have warranted any kind of relief either during his direct appeal or
during his postconviction proceedings.
We do note that in his appeal from the district court’s denial of an evidentiary hearing,
Stone briefly alleges that during voir dire, his trial counsel failed to question prospective jurors as
to their media exposure involving the allegations in the present case. Even assuming that counsel
did not question the prospective jurors on this topic, we do not find that Stone was entitled to an
evidentiary hearing on this issue.
The law does not require that a juror be totally ignorant of the facts and issues involved in
the case. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). A dismissal of a prospective juror
is not required if the prospective juror formed an opinion based on newspaper statements,
communications, comments or reports, or upon rumor or hearsay if the prospective juror states
under oath that he can render an impartial verdict and the court is satisfied of such. Id. Here, Stone
does not allege that any of the venirepersons who actually sat on the jury were incapable of
rendering an impartial verdict. In fact, given that the jury ultimately acquitted Stone of one of the
charged counts of first degree sexual assault of a child, it seems clear that the jury was not
fundamentally biased against Stone.
(b) Failure to Present Testimony of Material Witnesses
(i) H.W.’s Father
Stone alleges that his trial counsel was ineffective “by neglecting to call H.W.’s father,
Jerry [], to testify at trial.” Brief for appellant at 13. Stone indicates that had Jerry testified, he
would have impeached the credibility of H.W.’s trial testimony by stating that when he picked up
H.W. from Stone’s residence, he never smelled alcohol on H.W.’s person, nor did he suspect that
she had previously consumed alcohol. The district court found that counsel’s decision not to call
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Jerry at trial must be considered a strategic trial decision. The court also noted, “One can easily
see why calling H.W.’s father as a witness . . . could be a catastrophic move for the defense.”
Upon our review of Stone’s allegation of ineffective assistance of trial counsel, we first
note that it is not clear from Stone’s allegation how he knows what Jerry would have testified to if
called to the stand. Stone’s assertion without any explanation of the basis of his knowledge appears
to be simple conjecture about Jerry’s testimony. If Stone and his counsel did not know exactly
what Jerry would testify to, we agree with the district court that calling him to testify would not
have been a sound legal strategy. A reasonable strategic decision to present particular evidence, or
not to present particular evidence, will not, without more, sustain a finding of ineffective assistance
of counsel. State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018). Strategic decisions made by
trial counsel will not be second-guessed so long as those decisions are reasonable.
Moreover, we conclude that Stone has failed to demonstrate how he was prejudiced by trial
counsel’s failure to call Jerry to testify. Even if Jerry had testified that he did not smell alcohol on
H.W. or suspect that she had been drinking when he picked her up from Stone’s house, his
testimony would not have definitively disproved H.W.’s allegations of sexual assault, especially
considering the other evidence which corroborated H.W.’s claims. Based upon H.W.’s testimony,
it seems that H.W. often consumed alcohol in advance of her sexual encounters with Stone and
sometimes hours before being picked up by Jerry or another family member. H.W.’s testimony
indicated that she did not consume excessive amounts of alcohol, typically only one drink. As
such, it is possible that H.W. could have testified truthfully about consuming alcohol with Stone
and that Jerry would not have smelled the alcohol on H.W.’s person. Consequently, if Jerry had
testified that he did not notice that H.W. had been drinking, such testimony would not necessarily
have impeached H.W.’s credibility.
(ii) Stone’s Family Members, Friends, and Coworkers
Stone alleges that his trial counsel was ineffective by failing to call multiple character
witnesses to testify on his behalf, including, his family members, friends, coworkers, and four
former students. Stone specifically alleges that these witnesses would have testified that Stone “is
a generally affectionate person who routinely hugs people and frequently tells them that he ‘loves’
them.” Brief for appellant at 15. He believes that this testimony would have negated testimony at
trial that H.W.’s mother observed a “suspicious amount of affection toward H.W.” by Stone. Id.
Upon our review, we agree with the district court that Stone is not entitled to an evidentiary
hearing on this claim. Stone cannot demonstrate that he was prejudiced by counsel’s failure to call
these unnamed witnesses. Testimony which established that Stone was generally an affectionate
person would not have any bearing on the specific allegations of sexual assault made by H.W. She
alleged that Stone pursued a relationship with her when she was only 14 years old and then had
sexual intercourse with her on multiple occasions over a 4-month period after she turned 15 years
old. These allegations go far beyond Stone hugging H.W. or telling her he loves her.
(iii) Stone’s Psychiatrist
Stone alleges that his trial counsel was ineffective in “neglect[ing] to call [his] psychiatrist
who would have testified that [Stone] has a ‘savior’ complex in which [he] feels the need to want
to save people from adverse situations.” Brief for appellant at 15. Stone alleges that the testimony
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from his psychiatrist “would have nullified the State’s theory that [his] interest in H.W. stems from
a sexual attraction rather than a ‘savior’ complex.” Id. We do not agree with the implication of
Stone’s assertions that his psychiatrist’s testimony would have definitively changed the outcome
of the proceedings. Even if the jury believed that Stone had a “savior” complex, as he alleges, such
a belief would not necessarily have an effect on the jury’s decision about whether Stone sexually
assaulted H.W. In fact, as the district court suggested in its order, testimony from Stone’s
psychiatrist about his mental health problems could have had a negative impact on the jury. Stone
cannot demonstrate that he was prejudiced by counsel’s failure to call his psychiatrist to testify at
trial.
(iv) Independent Clinical Psychologist
Stone alleges that his trial counsel was ineffective in failing to identify and have testify
another clinical psychologist to refute the testimony of the State’s expert witness, Sturgis. Stone
first asserts that trial counsel should have “attempt[ed] to hire another expert to assist him in
understanding Dr. Sturgis’ claims and statistical data she relied on, or potentially, provide
testimony to refute the claims made by Dr. Sturgis.” Brief for appellant at 14.
We first reject Stone’s assertion that another expert would have assisted trial counsel in
cross-examining Sturgis regarding the bases of her opinions. As we discussed more thoroughly
above, counsel adequately cross-examined Sturgis. Stone does not allege how this
cross-examination would have been more effective given the advice of some other expert.
In addition, in assessing postconviction claims that trial counsel was ineffective in failing
to call a particular witness, the Supreme Court has upheld dismissal without an evidentiary hearing
where the motion did not include specific allegations regarding the testimony which the witness
would have given if called. For example, in State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009),
the defendant claimed that trial counsel was ineffective in failing to adduce the testimony of certain
witnesses. The Supreme Court affirmed dismissal of the postconviction claim without an
evidentiary hearing, reasoning that there was nothing in the postconviction motion or record to
indicate the nature of any exculpatory evidence which the witnesses would have given if called.
Similarly, in State v. Threet, 231 Neb. 809, 438 N.W.2d 746 (1989), disapproved on other grounds,
State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004), the court held that a postconviction
allegation that defense counsel was ineffective in failing to procure witnesses favorable to the
defendant was properly dismissed without an evidentiary hearing where the motion did not
specifically identify the witnesses or the nature of their testimony. Therein, the court stated that in
the absence of specific allegations in this regard, “a trial court need not conduct a discovery hearing
to determine if anywhere in this wide world there is some evidence favorable to defendant’s
position.” State v. Threet, 231 Neb. at 813, 438 N.W.2d 749.
Stone’s allegations are similarly lacking in specificity. He does not identify another expert
who would have testified in opposition to Sturgis’ opinions. Moreover, even if another expert had
testified and refuted some of Sturgis’ opinions, it does not follow that the jury would have
disregarded Sturgis’ opinions. The weight and credibility of an expert’s testimony are a question
for the trier of fact, and triers of fact are not required to take opinions of experts as binding upon
them. State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008).
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Stone also alleges that trial counsel should have hired an expert who “could have provided
general testimony about [reactive attachment disorder], its symptoms, and how it may or may not
impact a person’s ability to remember and tell the truth.” Brief for appellant at 15.
At trial, the State called Beverly Patitz to testify. Patitz is a licensed mental health counselor
with experience treating children with reactive attachment disorder. Patitz has been H.W.’s treating
therapist since September 2015. As a part of her testimony, Patitz detailed not only the general
symptoms of children who suffer from reactive attachment disorder, but also detailed some of
H.W.’s specific symptoms. During trial counsel’s cross-examination of Patitz, he asked her about
H.W.’s propensity to lie as a result of her reactive attachment disorder diagnosis and probed
whether Patitz could believe H.W.’s claims about the sexual abuse, when she has lied about other
things.
Stone’s claims about trial counsel’s failure to call another witness to testify regarding
H.W.’s reactive attachment disorder diagnosis must fail both because he does not identify any
expert who would have refuted Patitz’ explanation of the disorder, nor does he allege how further
testimony from another expert witness would have in any way changed the outcome of the
proceedings.
(c) Failure to Properly Cross-Examine State’s Witnesses
(i) H.W.
Stone alleges that his trial counsel provided ineffective assistance when he failed to
adequately cross-examine H.W. Specifically, Stone alleges that trial counsel should have
cross-examined H.W. regarding her testimony that Stone had engaged in sexual conduct with her
on 120 occasions; her testimony that Stone had taken a photograph of her while he was straddling
her on his bed; her testimony that Stone first engaged in sexual penetration of her on her birthday
in September 2014; and evidence that H.W. was known to lie when she felt pressured by her
parents. Stone generally alleges that had his trial counsel cross-examined H.W. on these topics,
H.W.’s credibility would have been “substantially undermined” and the jury would have had doubt
regarding the reliability of H.W.’s account of the sexual assaults. Brief for appellant at 22. We will
discuss each of these allegations in turn.
(ii) Number of Times H.W. Was Assaulted
During trial counsel’s cross-examination of H.W. he asked her to provide her “best
estimate” of the number of times she had penile/vaginal intercourse with Stone from August 2014
through February 2015. H.W. responded, “Roughly, by the math that I remember, that over
roughly 120 times.” In his motion for postconviction relief and in this appeal, Stone alleges that
his trial counsel “was in possession of evidence which established that there were only
approximately 20 days between September 24, 2014 and February 7, 2015 in which [Stone] and
H.W. were both [in town] and [Stone’s wife] was not [in town].” Brief for appellant at 22. Stone
alleges that such evidence would have contradicted H.W.’s testimony regarding the number of
sexual encounters between her and Stone. He further alleges that such evidence would have
undermined H.W.’s credibility with the jury.
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We find that Stone is not entitled to an evidentiary hearing on this allegation. First, Stone
has failed to allege what “evidence” counsel was in possession of which would have established
that there were only 20 days in which H.W. and Stone could have engaged in sexual contact
undetected by Stone’s wife. Moreover, trial counsel did question Stone about the number of days
he and his wife were in town from September 2014 through February 2015. Stone’s testimony
established that, contrary to his postconviction assertion, he was in town for more than 20 days
without his wife being present during the 5 months H.W. alleged the sexual abuse occurred. Stone
testified that he was in Colorado for 1 week during October 2014, that he would visit his wife in
Kansas every other weekend, and that he was gone the entire month of January 2015. Based on
this testimony, it is reasonable to conclude that other than the dates specified, Stone was in town
with H.W. outside the presence of his wife.
In addition, we note that trial counsel did otherwise question H.W.’s credibility. In fact,
during H.W.’s testimony, she repeatedly admitted that she had previously lied about certain facts
during her interviews with police and with professionals at the Child Advocacy Center. H.W.’s
mother testified that H.W. had gotten in trouble at school for lying and H.W.’s therapist testified
that H.W. has been known to lie and be manipulative. Given all of the other evidence presented to
the jury regarding H.W.’s credibility, we do not find that trial counsel’s failure to challenge H.W.’s
somewhat inexact testimony that she had sexual intercourse with Stone on 120 occasions would
have in any way changed the outcome of the trial. This is especially true considering that the jury
was only asked to determine whether Stone had sexual intercourse with H.W. on five separate
occasions, as charged in the amended information.
(iii) Photograph Taken by Stone
At trial, H.W. testified that one of the photographs which depicted her naked under a sheet
in Stone’s bed was taken by Stone after they had had sexual intercourse and while Stone was
straddling her. In his motion for postconviction relief and in this appeal, Stone alleges that his trial
counsel provided ineffective assistance when he failed “to confront H.W. with the fact that H.W.
previously claimed, during her July 5, 2015 [Child Advocacy Center] interview, that [Stone] only
took one picture of her and this picture depicted H.W. wearing her bra and underwear.” Brief for
appellant at 22. Stone further alleges that had counsel questioned H.W. on this topic, “it would
have cast serious doubt on whether [Stone] took [that particular] photo.” Id.
Upon our review, we conclude that Stone is not entitled to an evidentiary hearing on this
ground. Whether Stone actually took this photograph or exactly where he was positioned when he
did so, was not an element of his charged offenses. As such, counsel’s failure to challenge H.W.’s
testimony on that specific fact would not have changed the ultimate outcome of the trial. This is
especially true considering that trial counsel put H.W.’s credibility at issue during his
cross-examination and during his examination of other witnesses. The jury still believed H.W.’s
testimony that Stone sexually assaulted her on numerous occasions. Additionally, even if trial
counsel had further questioned H.W.’s testimony about this particular photograph, evidence that
the photograph was found on Stone’s electronic devices along with evidence of other inappropriate
photographs of H.W. in Stone’s possession would remain unchanged and unexplained.
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(iv) Inconsistencies Between H.W.’s Prior
Interviews and Trial Testimony
At trial, H.W. testified that the first time she and Stone had sexual intercourse was on her
birthday, September 24, 2014. In his motion for postconviction relief and in this appeal, Stone
alleges that his trial counsel was ineffective for failing to cross-examine H.W. regarding prior
inconsistent statements she made about the first time she and Stone had sexual intercourse. The
record refutes Stone’s claim.
During trial counsel’s cross-examination of H.W., he questioned her at length regarding
false statements she made during interviews she gave prior to trial, including false statements about
“when [H.W.] said the sexual encounters started and for how long they continued.” The following
colloquy occurred:
Q: You originally said that the activity that you were there to complain about started
about October 1st and it went through February 28th?
A: Correct.
Q: And we’ll get into the details of what you said. But you knew when you said
that that that wasn’t true, correct?
A: Yes.
Q: And you indicated -- or did you indicate at that time that the first incident of
inappropriate contact between you and Mr. Stone was an event in October in which he
kissed you?
A: Correct.
Q: And you told them at that time that the last event that could have happened was
something that happened in connection with the conference on February 7th?
A: Yes.
Q: And you knew just for purposes of our discussion today that those dates and
those events were incorrect?
A: Yes.
Q: And tell me if I have this right. If I don’t, let me know. It’s only after law
enforcement came to you following their investigation and confronted you about problems
with your timeline, problems with the dates, problems with other evidence not fitting with
your claim that you changed your story, right?
A: Right.
Because trial counsel did cross-examine H.W. regarding prior inconsistent statements she
made about when the sexual contact between her and Stone began, Stone is not entitled to an
evidentiary hearing on this ground.
(v) H.W.’s Tendency to Lie When Feeling
Pressure From Her Parents
Stone alleges that his trial counsel was in possession of evidence that established H.W. had
a tendency to lie when feeling pressure from her parents. He also alleges that his trial counsel was
in possession of evidence that H.W. felt pressure from her mother to admit to an inappropriate
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sexual relationship with Stone. Specifically, he alleges that H.W.’s mother repeatedly “press[ed]”
H.W. about her relationship with Stone until H.W. eventually admitted that she and Stone had been
involved in a sexual relationship. Brief for appellant at 23. We conclude that Stone is not entitled
to an evidentiary hearing on this ground.
Stone’s trial counsel cross-examined H.W. regarding her initial disclosure of the sexual
assault to someone other than her mother. H.W. explained that she disclosed at that time because
she “was struggling with things on my own and making really bad decisions about the things that
have happened and taking my anger out on people, and it was finally to the point where I couldn’t
take it anymore.” H.W. indicated that after this initial disclosure, she brought up the subject with
her mother. Stone does not allege what evidence trial counsel possessed which would have refuted
H.W.’s explanation regarding her initial disclosure or which would have demonstrated that the
disclosure was the result of pressure from her mother. Moreover, as we discussed above, there was
a great deal of information regarding H.W.’s tendency to lie and manipulate. Despite all of this
evidence, the jury believed H.W.’s testimony regarding the sexual assaults. Stone offers nothing
specific to suggest that the result of the proceeding would have been different had trial counsel
offered any additional evidence regarding H.W.’s tendency to lie, especially to her parents.
(vi) H.W.’s Mother
Stone alleges that his trial counsel provided ineffective assistance when he failed to
adequately cross-examine H.W.’s mother, Lynne. Specifically, Stone alleges that trial counsel
should have more thoroughly questioned Lynne regarding her statement that Stone rarely
communicated with her about the schoolwork he was assisting H.W. with during his homeschool
sessions. Stone argues that had trial counsel confronted Lynne with evidence that she and Stone
did, in fact, communicate about homeschooling, that “it would have established that [Stone] had a
genuine and sincere interest in assisting H.W. with her schooling as opposed to the State’s theory
that [Stone] was grooming H.W. and using the home-schooling in an attempt to sexually assault
H.W.” Brief for appellant at 25.
We agree with the district court that Stone was not entitled to an evidentiary hearing on
this allegation. Stone cannot show that counsel’s failure to question Lynne further about her
specific communications with Stone regarding homeschooling H.W. had any bearing on the jury’s
decision to find Stone guilty of the charged offenses. Stone’s interest and actions in assisting H.W.
with her school work do not necessarily correlate with whether he sexually assaulted H.W. In fact,
based upon the testimony of both Lynne and H.W., Stone was actively engaged in homeschooling
H.W., and both Lynne and H.W. were initially appreciative of his efforts in this regard. However,
H.W. testified that while Stone was homeschooling her, he was also sexually abusing her. Even if
Stone’s counsel went to greater lengths to point out that Stone was actively engaged in
homeschooling H.W., there is nothing to indicate that such cross-examination would have changed
the results of the proceedings.
Stone also alleges that his trial counsel should have questioned Lynne further regarding
“her extremely positive perception” of him and “his efforts to assist in educating H.W.” Brief for
appellant at 25. Stone argues that had trial counsel elicited such testimony, it would have
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demonstrated that Lynne encouraged his continued contact with H.W. and explained the amount
of time he spent with H.W.
Again, we find that the district court did not err in denying Stone an evidentiary hearing on
this ground because Stone’s assertion is refuted by the record. Lynne testified at trial that when
Stone initially offered to assist with H.W.’s homeschooling, she was very appreciative. In fact,
text messages between Stone and Lynne which were received into evidence reflected Lynne’s
initial appreciation and positive feelings toward Stone. Lynne indicated during her testimony that
after a while, she began to have concerns about Stone and H.W.’s relationship. Clearly, though,
she continued to allow Stone and H.W. to be alone together through the first part of 2015, despite
her concerns. An email from Lynne to Stone dated January 13, 2015, indicates that Lynne told
Stone that she still believed Stone was a positive influence in H.W.’s life. Given all of the evidence
which established that Lynne, initially, had a very positive perception of Stone, including Lynne’s
own admissions to such, trial counsel was not ineffective in failing to further question Lynne on
this topic.
(vii) Forensic Expert
During the State’s direct examination of its forensic computer expert, it elicited testimony
regarding the inappropriate photographs of H.W. which appear to have been taken while H.W. was
in Stone’s bed. Such testimony included an explanation of what the data showed about the date
and time the pictures were taken, where the pictures were taken, and the device used to take the
pictures.
On appeal, Stone alleges that his trial counsel provided ineffective assistance when he
failed to properly cross-examine the State’s forensic computer expert. Stone asserts that the State’s
expert “neglected to properly make a forensic copy of the hard drive of [his] laptop prior to hooking
the laptop up to computer extraction software [and that a]s a result, the hard drive of [Stone’s] lap
top computer was corrupted[.]” Brief for appellant at 15. He further alleges that his counsel should
have questioned the State’s expert regarding whether the corruption of the laptop altered the date
and time stamps of the photographs taken of H.W., which would have “cast serious doubt as to
[Stone’s] guilt.” Id.
The record refutes Stone’s claim of ineffective assistance of counsel. While trial counsel
chose not to cross-examine the State’s forensic computer expert, counsel did call another forensic
computer expert to testify on Stone’s behalf. The defense’s expert testified that he worked closely
with the State’s expert and had access to all of the pertinent information regarding Stone’s
electronic devices. Trial counsel questioned the defense’s expert at length about inconsistencies in
the data and about what those inconsistencies may mean. Ultimately, however, the defense’s expert
agreed with the State’s expert about the date, time, and location each photograph was taken: “[T]he
dates don’t lie.”
The record reveals that trial counsel adequately addressed the testimony of the State’s
forensic computer expert by calling a separate expert to testify on Stone’s behalf. Because the
defense’s expert agreed with the State’s expert regarding the timing of the photographs, there
would have been nothing to gain by counsel cross-examining the State’s expert on this topic.
Counsel did not provide ineffective assistance in this regard.
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(d) Failure to Object to Certain Evidence
(i) Sonogram Evidence
During Stone’s trial testimony, he testified that he told law enforcement that H.W. had sent
him an email telling him that she was pregnant and that attached to this email was an image from
a sonogram to prove the pregnancy. Stone also testified that he told law enforcement that he still
had the sonogram image saved on his computer. The State’s forensic computer expert located an
image of a sonogram on two of Stone’s electronic devices; however, the image indicated that it
did not belong to H.W., but to another woman. A law enforcement officer testified that he
subsequently identified and contacted the woman identified on the sonogram image. The officer
testified he had a telephone conversation with this woman and learned that she is an acquaintance
of Stone. During his testimony, Stone acknowledged that the sonogram image from his
acquaintance was the only sonogram image located on his electronic devices and that one of his
friends had sent him that image. He opined that H.W. had obtained a copy of the sonogram image
when she had access to his electronic devices and then attached it to the email she sent to him.
On appeal, Stone alleges that his trial counsel provided ineffective assistance when he
failed to object to the evidence of the sonogram image. Specifically, Stone alleges that counsel
should have objected on the basis of hearsay and foundation to the law enforcement officer’s
testimony that he had a telephone conversation with the woman identified on the sonogram image
and that he subsequently learned that the woman was acquainted with Stone. Stone argues, “By
failing to object to this inadmissible evidence, the jury was allowed to conclude that the sonogram
found on [Stone’s] laptop computer came from an acquaintance of [Stone] rather than H.W.” Brief
for appellant at 28.
Stone is not entitled to an evidentiary hearing on this ground. Even if counsel should have
made an objection to the hearsay testimony of the law enforcement officer regarding the sonogram
evidence, Stone cannot demonstrate that he was prejudiced by counsel’s failure. While Stone
contends that the officer’s testimony provided the jury with an inaccurate representation that the
sonogram image originated from someone other than H.W., the record reveals that such a
representation is, in fact, accurate. Stone, himself, testified that he originally received the
sonogram image from a friend of his, not from H.W. Stone then guessed that H.W. had found the
sonogram image on his electronic device and re-sent it to him along with her email. As such, it
was Stone, and not the law enforcement officer, who told the jury exactly how Stone originally
received the sonogram image. The officer’s unobjected to testimony did not provide any additional
facts regarding the discussion of the sonogram image which were prejudicial to Stone.
(ii) Testimony of State’s Rebuttal Witness
At trial, the State called Dr. Stacie Bleicher, a pediatrician and medical director of the Child
Advocacy Center in Lincoln, Nebraska, to testify. Bleicher examined H.W. after H.W. had
disclosed that she had been sexually abused. The examination revealed that H.W. had a
“normal-appearing” hymen. However, Bleicher explained that a “normal” examination of genitalia
does not necessarily indicate that no sexual assault has occurred.
During the defense’s case-in-chief, Stone called his own medical expert to testify. Dr.
Angela Grone is an obstetrician and gynecologist employed by the Beatrice Community Hospital.
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She opined that H.W.’s hymen would no longer be intact, or “normal,” if in fact she had sexual
intercourse with Stone on a regular basis, as H.W. had alleged. Grone did concede that she is not
a sexual assault examiner and she has no specialized training in the area of sexual assault.
During the State’s rebuttal, it called a third medical professional, forensic nurse examiner
Annie Boatright. Boatright testified that she has seen at least 300 patients who required a sexual
assault examination. She opined that a woman can have digital or penile penetration without injury
to her hymen, especially if the penetration was consensual. Upon specific questioning by the State,
Boatright indicated that a woman can have a “normal” hymen and have had intercourse more than
100 times. In addition, Boatright explained that the vaginal area heals very quickly, so if the hymen
was injured during intercourse, that injury could heal within days to weeks. Boatright also testified
about her understanding of a peer-reviewed article entitled, “Normal Doesn’t Mean Nothing
Happened.” According to Boatright, this research article followed 36 females who had been
sexually active and had become pregnant. Only 2 of the females who participated in the study were
identified as having a visible injury in their vaginal area. The other 34 participants had normal
vaginal areas.
On appeal, Stone alleges that his trial counsel provided ineffective assistance in failing to
object to Boatright’s testimony. Specifically, Stone alleges that counsel failed to make a
foundational objection regarding Boatright’s testimony about the peer-reviewed article; failed “to
confront Ms. Boatright with the fact that her testimony misrepresented the findings described in
the article;” and failed to confront Boatright with more recent scientific information, given that the
article was published in 2004. Brief for appellant at 27.
We find that Stone was not entitled to an evidentiary hearing on this ground. Stone makes
only conclusory allegations. He does not assert what foundation was lacking for Boatright’s
testimony. He also does not explain exactly how Boatright misrepresented the findings from the
article. And, he does not explain what new research has been conducted since the article was
written in 2004 or how that new research may have affected Boatright’s opinion.
Moreover, we note that the peer-reviewed article was not brought up until the State’s
redirect of Boatright. The majority of Boatright’s testimony was based upon her personal
experiences as a forensic nurse examiner. Given the small role the peer-reviewed article played in
Boatright’s testimony, we cannot find it likely that the result of the proceedings would have been
different had trial counsel objected to Boatright’s discussion of the article or further
cross-examined her on the article’s contents. We affirm the decision of the district court to deny
Stone an evidentiary hearing on this ground.
(e) Failure to Ensure Sufficient Time for Jury Trial
Trial in this case began on Monday, June 20, 2016. On Friday, June 24, 2016, the
presentation of evidence was nearing a close. That morning, the judge had the following discussion
with the jury:
Good morning, ladies and gentlemen. I understand you have come to an agreement that
you would prefer to push through the rest of this evening and, if necessary, come back in
the morning. You also told the bailiff that you don’t want anyone to think that their case
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should be rushed. You want to give the defendant sufficient time. And I am seeing nods of
heads. So I appreciate that very much.
The evidence concluded on Friday evening. The jury and all of the parties returned on Saturday,
and the case was submitted to the jury at 1 p.m. The jury returned its verdict at 7:01 p.m. that same
day.
On appeal, Stone alleges first that he was denied his constitutional right to due process
because he was not provided with sufficient time to present the “complicated” case to the jury.
Brief for appellant at 29. However, as the State argues in its brief, Stone is precluded from raising
this argument for the first time during these postconviction proceedings because he could have
raised this argument on direct appeal. It is well established that a petition for postconviction relief
may not be used to obtain review of issues that were or could have been reviewed on direct appeal.
State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
Stone next alleges that he received ineffective assistance of counsel when counsel failed to
request additional time to present the case to the jury. “The compressed format of [Stone]’s jury
trial resulted in significant fatigue on the part of the trial judge, the attorneys, and the jury.” Brief
for appellant at 29. In the district court’s order denying Stone’s motion for postconviction relief,
it stated:
In regard to the claim that the Court, jury and witnesses appeared tired, the Court notes that
this is not particularly unusual for a week-long trial; further, the jury was asked whether
they wished to recess for the weekend and it chose to continue to work on a Saturday. This
certainly does not rise to an inference that another trial would result in a different verdict.
We agree with the district court that Stone was not entitled to an evidentiary hearing on
this claim of ineffective assistance. Stone has failed to provide sufficient evidence to demonstrate
that he was in any way prejudiced by the length of the trial. He does not allege what other witnesses
he would have called to testify or what other evidence he would have offered had there been
additional time set aside for the trial. Moreover, the record reveals that not only did the jury choose
to return to court on a Saturday in an effort to reach a verdict, but the jury also specifically informed
the court and the parties that it did not want Stone to feel rushed in his presentation of the evidence.
Stone has not explained how the result of the proceedings would have been different had the trial
been allowed to extend into the following week.
3. ON DIRECT APPEAL
(a) Failure to Properly Preserve Constitutional
Issue for Appellate Review
In Stone’s direct appeal, his counsel argued that the mandatory minimum sentencing
scheme of Neb. Rev. Stat. § 28-319.01 (Reissue 2016), violated the Equal Protection Clauses of
the U.S. and Nebraska Constitutions by treating Stone more harshly than younger offenders. State
v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017) Specifically, counsel argued that had Stone been
19-24 years old, rather than 58 years old, at the time of his crimes, he would have been convicted
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of Class II felonies rather than Class IB felonies. Id. And, as a result, he would not have been
subject to a 15-year mandatory minimum term of imprisonment. Id.
However, the Supreme Court determined that Stone’s constitutional argument was not
preserved for appellate review. Id. The court determined that the challenge to the sentencing
scheme was a facial challenge, rather than an as applied challenge. Id. As such, Stone’s counsel
was required to have filed a motion to quash at the trial court level in order to preserve his
constitutional challenge. Id. Because counsel did not file a motion to quash, the Supreme Court
found that the constitutional argument had been waived. Id.
In his motion for postconviction relief and in this appeal, Stone claims his counsel provided
ineffective assistance because he failed to properly preserve his constitutional argument for
appellate review. Upon our review, we find that counsel did not provide deficient performance
even though he failed to properly preserve Stone’s constitutional claim for appellate review.
Stone’s claim that § 28-319.01 violated the Equal Protection Clause constitutes a novel
constitutional challenge. In State v. Sanders, 289 Neb. 335, 855 N.W.2d 350 (2014), the Supreme
Court concluded that a claim of ineffective assistance of counsel fails the first prong of the
Strickland test where prior counsel is alleged to be deficient for failing to raise novel legal theories
or constitutional challenges. The court stated: “It logically follows, and we now conclude, that
counsel’s failure to raise novel legal theories or arguments or to make novel constitutional
challenges in order to bring a change in existing law does not constitute deficient performance.”
State v. Sanders, 289 Neb. at 343, 855 N.W.2d at 357. Therefore, trial counsel’s performance on
this issue cannot be considered deficient.
Even if counsel’s performance could be considered deficient, Stone cannot demonstrate
that he was prejudiced by trial counsel’s performance. See State v. McGhee, 280 Neb. 558, 787
N.W.2d 700 (2010). In order to demonstrate prejudice, Stone must show that if counsel had
properly preserved the constitutional claim for appellate review, that there is a reasonable
probability that it would have changed the result of the appeal. See State v. Timmens, 282 Neb.
787, 805 N.W.2d 704 (2011).
In his motion for postconviction relief and in this appeal, Stone has failed to allege
sufficient facts to demonstrate that he was prejudiced by counsel’s failure to properly preserve the
constitutional claim. Specifically, Stone has failed to provide any evidence or case law which
would indicate his constitutional claim would have been successful had it been properly preserved.
We note that Stone cited no case authorities in support of his equal protection claim in his brief
submitted on direct appeal. Our research has also failed to reveal a case directly on point.
However, in a recent case, the Supreme Court did address a similar constitutional
argument. In State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019), the appellant argued that
§ 28-319.01 is unconstitutional on its face because it warrants the imposition of a substantially
harsher sentence than other first degree sexual assault statutes solely based on the ages of the
victim and the offender. In Hibler, the court focused its analysis on the appellant’s claims as they
related to the victim’s age, rather than as they related to the defendant’s age. The court concluded
that the age classifications to which the appellant was subject to in § 28-319.01(1)(a) are rationally
related to plausible policy reasons considered by lawmakers and that the relationship of the
classifications to their goals are not so attenuated as to render the distinction arbitrary or irrational.
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The court explained, “As the legislative history showed, based on the policy, goals, and facts
evinced therein, the Legislature required more severe punishments for first degree sexual assault
of a young child, because it concluded it was a more serious crime.” Id. at 343, 923 N.W.2d at
414.
Given the Supreme Court’s decision in State v. Hibler, supra, finding that § 28-319.01 is
constitutional even though it establishes different punishments based upon the age of the victim of
the sexual assault, it seems likely that the Supreme Court would make a similar determination
when analyzing the same claim based upon the age of the perpetrator of the sexual assault.
Accordingly, Stone did not show he was prejudiced in any way by counsel’s performance in this
regard.
(b) Failure to Challenge District Court’s Decision to Sustain
State’s Motion to Quash H.W.’s School Records
In the days leading up to the trial, Stone’s counsel subpoenaed certain records from Thayer
County Public Schools regarding H.W. The State filed a motion to quash the subpoena, and the
court determined that it would review the records “in-camera” in order to determine their relevance
and admissibility. Both Stone and the State appear to agree that the court’s ultimate resolution of
the motion to quash is not clear from the record; however, it is clear from the record that the school
records were never offered into evidence by Stone.
In this appeal, Stone alleges that his appellate counsel was ineffective for failing to allege
on appeal that the district court erred in sustaining the State’s motion to quash the school records.
We find that Stone is not entitled to an evidentiary hearing on this ground. First, we note that, as
the parties agree, the district court’s ruling on the motion to quash is not clear from the record. As
such, it is not clear what ruling appellate counsel would have challenged in Stone’s direct appeal.
Nonetheless, assuming that the district court did sustain the motion to quash, Stone has failed to
allege any error in the district court’s decision. Further, he does not assert that had appellate
counsel raised this issue on direct appeal, counsel would have been successful.
VI. CONCLUSION
For the foregoing reasons, we conclude that the district court did not err in denying Stone
an evidentiary hearing on allegations that his counsel was ineffective in matters related to pretrial
motions and investigation, trial proceedings, and direct appeal. We affirm the district court’s denial
of postconviction relief without an evidentiary hearing.
AFFIRMED.
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