State v. Mora , 298 Neb. 185 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/09/2017 09:12 AM CST
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. MORA
Cite as 298 Neb. 185
State of Nebraska, appellee, v.
Felipe German Mora, appellant.
___ N.W.2d ___
Filed November 9, 2017. No. S-16-1120.
1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination whether the
court admitted evidence over a hearsay objection or excluded evidence
on hearsay grounds.
2. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
3. Sentences: Words and Phrases: Appeal and Error. An appellate court
reviews criminal sentences for abuse of discretion, which occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
5. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
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6. Rules of Evidence: Hearsay: Physician and Patient. Statements made
for purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the incep-
tion or general character of the cause or external source thereof insofar
as reasonably pertinent to diagnosis or treatment are not excluded by the
hearsay rule.
7. Rules of Evidence: Hearsay: Proof. In order for statements to be
admissible under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3)
(Reissue 2016), the party seeking to introduce the evidence must demon-
strate (1) that the circumstances under which the statements were made
were such that the declarant’s purpose in making the statements was to
assist in the provision of medical diagnosis or treatment and (2) that the
statements were of a nature reasonably pertinent to medical diagnosis or
treatment by a medical professional.
8. Rules of Evidence: Hearsay. A statement is generally considered
admissible under the medical purpose hearsay exception if gathered for
dual medical and investigatory purposes.
9. ____: ____. Excited utterances are an exception to the hearsay rule,
because the spontaneity of excited utterances reduces the risk of inac-
curacies inasmuch as the statements are not the result of a declarant’s
conscious effort to make them.
10. ____: ____. For a statement to be an excited utterance, the following
criteria must be met: (1) There must be a startling event; (2) the state-
ment must relate to the event; and (3) the declarant must make the
statement while under the stress of the event. The true test is not when
the exclamation was made, but whether, under all the circumstances, the
declarant was still speaking under the stress of nervous excitement and
shock caused by the event.
11. Trial: Evidence: Appeal and Error. The improper admission of evi-
dence is a trial error and subject to harmless error review.
12. Criminal Law: Juries: Evidence. In a jury trial of a criminal case, an
erroneous evidentiary ruling results in prejudice to a defendant unless
the State demonstrates that the error was harmless beyond a reason-
able doubt.
13. Trial: Convictions: Evidence. Where the evidence is cumulative
and there is other competent evidence to support the conviction, the
improper admission or exclusion of evidence is harmless beyond a rea-
sonable doubt.
14. Sentences. When imposing a sentence, the sentencing court should cus-
tomarily consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the
offense, as well as (7) the nature of the offense and (8) the violence
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STATE v. MORA
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involved in the commission of the offense. However, the sentencing
court is not limited to any mathematically applied set of factors.
15. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
16. ____. It is within the discretion of the trial court to impose consecutive
rather than concurrent sentences for separate crimes.
17. Appeal and Error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and fairness
of the judicial process.
18. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant must raise on direct appeal any issue of trial counsel’s ineffective
performance which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred.
19. Effectiveness of Counsel: Records: Appeal and Error. On direct
appeal, the resolution of ineffective assistance of counsel claims turns
upon the sufficiency of the record.
20. ____: ____: ____. The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean that it can be
resolved. The determining factor is whether the record is sufficient to
adequately review the question.
21. ____: ____: ____. An appellate court can determine whether the record
proves or rebuts the merits of a claim of ineffective assistance of trial
counsel only if it has knowledge of the specific conduct alleged to con-
stitute deficient performance.
22. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when allegations of deficient performance are made with enough
particularity for (1) an appellate court to make a determination of
whether the claim can be decided upon the trial record and (2) a district
court later reviewing a petition for postconviction relief to be able to
recognize whether the claim was brought before the appellate court.
23. Claims: Effectiveness of Counsel. A claim of ineffective assistance
of counsel insufficiently stated is no different than a claim not stated
at all.
Appeal from the District Court for Lancaster County: Jeffre
Cheuvront, Judge, Retired. Affirmed.
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STATE v. MORA
Cite as 298 Neb. 185
Joe Nigro, Lancaster County Public Defender, and Shawn
Elliott for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Cassel, J.
I. INTRODUCTION
In this direct appeal from criminal convictions and sen-
tences, Felipe German Mora (Mora) challenges the overruling
of his hearsay objections, the sufficiency of the evidence, the
excessiveness of his sentences, and whether his trial counsel
provided effective assistance. Because we find no error and the
record is insufficient to review the allegations of ineffective
assistance of counsel that were sufficiently stated, we affirm
the district court’s judgment.
II. BACKGROUND
The State charged Mora with four counts of first degree
sexual assault of a child and one count of third degree sexual
assault of a child. The victim in each count was B.C. Counts
I through III alleged that between December 30, 2010, and
September 18, 2015, Mora subjected B.C. to sexual penetra-
tion in Lincoln, Nebraska. Each count differed only as to the
address of the crime: E Street, Theresa Street, and Saunders
Avenue, respectively. Count IV alleged that on September 19,
2015, Mora subjected B.C. to sexual penetration. And count V
alleged that between December 30, 2010, and September 19,
2015, Mora subjected B.C. to sexual contact. Because Mora
was born in February 1983 and B.C. was born in December
2004, at the times of the crimes, Mora was at least 19 years old
and B.C. was under the age of 12. We recite the evidence in the
light most favorable to the State.
The evidence at trial established that B.C. came to the
United States when she was 6 years old. B.C. began living
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with her mother, Marcela M., and Marcela’s partner, Mora, on
E Street. Over time, B.C. got to know Mora and thought of
him “[l]ike a dad.” Because Mora was acquitted on the count
pertaining to sexual penetration at the E Street address, we
recite only the evidence relevant to the count for sexual con-
tact. While living at the E Street address, Mora began touching
B.C.’s vagina under her clothes with his hands.
When B.C. was 8 years old, she moved to Theresa Street.
B.C. testified that Mora “rubbed his fingers up and down” her
vagina and began inserting his penis in her vagina. These acts
occurred at the Theresa Street address more than 20 times.
When B.C. was 10 years old, she moved to Saunders
Avenue. At that location, Mora put his penis inside of B.C.’s
vagina on more than 10 occasions. B.C. did not tell anybody
what Mora was doing because she was scared.
On the morning of September 19, 2015, Mora subjected
B.C. to penile-vaginal intercourse. Defense counsel pointed
out some inconsistencies in B.C.’s testimony with regard to
this assault. B.C. testified in a deposition that Mora took her
clothes off, but she testified at trial that Mora told her to take
her clothes off and that she complied. At trial, B.C. testified
that she did not see any ejaculate that day, but she told an
investigator that Mora “put white stuff on [her] stomach.” B.C.
admitted that it was difficult to remember all the details. She
explained that the events happened a number of times, with
Mora’s taking her clothes off at times and B.C.’s taking her
own clothes off at other times.
On the evening of September 19, 2015, Mora took B.C. to
the residence of his brother, Rafael German Mora (Rafael),
while Marcela and Mora went to a casino in Council Bluffs,
Iowa. Rafael’s partner, Maricela Saldivar, saw Rafael kiss-
ing B.C. and touching her vaginal area with his hand over
her clothes. After Saldivar sent Rafael to the store, Saldivar
asked B.C., “‘What is going on? Why did this happen?’” B.C.
said that nothing happened, but then began crying and said
that Rafael was touching her. After Saldivar testified she told
B.C. that Saldivar needed to tell Mora what had occurred,
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the prosecutor asked what happened. Defense counsel raised
a hearsay objection, which the court overruled. Saldivar then
testified that B.C. “said no because her dad was doing the
same thing to her.” Saldivar testified that when she told Mora
what happened was not right, Mora did not deny touching B.C.
and instead just said that Saldivar did not know what he had
“gone through.”
Marcela testified that as she and Mora were returning to
Lincoln from the casino, B.C.’s aunt told Marcela over a cell
phone that B.C. said Mora had been sexually abusing B.C.
Marcela asked Mora if it was true, but Mora denied doing any-
thing. Once they arrived in Lincoln, Marcela went to see B.C.,
because B.C. was crying. The prosecutor asked what B.C.
said to Marcela, and Mora’s counsel objected as to hearsay.
The court overruled the objection. Marcela answered: “I asked
[B.C.] if it was true what . . . had been said about [Mora’s]
having been abusing her sexually. [B.C.] said yes.”
Marcela testified that after police were called, Mora said,
“‘Yes, I did it,’ but that [Marcela] was at fault because [she]
would always leave [B.C.] with him when [Marcela] had to
go to work.” Marcela later discovered a text on her cell phone
from Mora, sent September 20, 2015, at 2:07 a.m. The message
was in Spanish, but the English translation was either: “‘Sorry.
I’ll never forget you.’” or “‘Forgive me. I will never forget
[the] two of you.’”
On September 20, 2015, Eileen Bonin, a sexual assault nurse
examiner, examined B.C. In her experience, it was infrequent
to find injuries when conducting sexual assault examinations.
Bonin observed some redness on B.C.’s right labia minora,
which was an unusual finding. Defense counsel raised a hear-
say objection when the prosecutor asked what B.C. told Bonin
about what had occurred, but the court overruled the objection.
Bonin testified that B.C. said her “stepdad, [who was] not
really her stepdad,” had been touching B.C. since she was 7
years old and that her uncle had been touching her for approxi-
mately 9 months. Bonin testified that B.C. told her that Mora
“put his private parts in her private parts.”
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STATE v. MORA
Cite as 298 Neb. 185
On September 20, 2015, an investigator used cotton swabs
to obtain DNA from Mora’s hands and penis. The swab from
Mora’s penis revealed a mixture of DNA of at least two
individuals. B.C. was included as a major contributor, but
Mora was excluded. In other words, B.C.’s DNA was on
Mora’s penis.
On September 22, 2015, Dr. Stacie Bleicher, the medical
director at a child advocacy center, performed a followup
examination on B.C. During Bleicher’s testimony, when the
prosecutor asked if B.C. said anything that was significant to
Bleicher, defense counsel objected on the ground of hearsay.
After the court overruled the objection, Bleicher answered that
B.C. said she “had sexual contact by both her stepfather and
. . . her uncle.”
An inmate incarcerated at prison testified about what Mora
told him while they were both being held at the Lancaster
County jail. The inmate asked Mora about his case, and Mora
said that he did not do the crime. But the next day, Mora told
the inmate that he had sexual intercourse with a young female,
his stepdaughter. The inmate had hoped to get some leniency in
court for this information, but at the time of his testimony, he
had not received any accommodation nor been offered a deal.
The inmate admitted that he had previously cooperated with
authorities on a number of occasions.
After the State rested its case, the defense did not call any
witnesses or offer evidence.
The jury found Mora not guilty of count I, but guilty of the
other counts. The district court sentenced Mora to imprison-
ment as follows: on count II, 30 years, 15 of which were a
mandatory minimum, to life; on count III, 30 years, 15 of
which were a mandatory minimum, to life; on count IV, 30
years, 15 of which were a mandatory minimum, to life; and
on count V, “a period of 3 years.” The court ordered that
counts II and III run concurrently with one another but con-
secutively to counts IV and V. It ordered that counts IV and
V were to be served consecutively to each other and consecu-
tively to counts II and III.
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STATE v. MORA
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Through counsel different from trial counsel, Mora timely
filed an appeal.
III. ASSIGNMENTS OF ERROR
Mora assigns that the district court erred in (1) permitting
the State to introduce hearsay statements of B.C. based on
the medical purpose and excited utterance exceptions to the
hearsay rule, (2) adjudging him guilty when the evidence was
insufficient, and (3) imposing excessive sentences.
Mora also assigns that he was denied the right to the effec-
tive assistance of counsel due to counsel’s failure to (1) ade-
quately communicate in order to prepare a defense and explore
options, (2) properly advise him about the right to testify, (3)
have the penile swab retested and retain an expert to refute the
State’s DNA evidence, and (4) explore calling character wit-
nesses at trial.
IV. STANDARD OF REVIEW
[1] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination whether the court admitted
evidence over a hearsay objection or excluded evidence on
hearsay grounds.1
[2] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.2
1
State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).
2
State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).
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[3] An appellate court reviews criminal sentences for abuse
of discretion, which occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason,
and evidence.3
[4,5] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law.4 In reviewing claims of ineffective assistance of counsel
on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance.5
V. ANALYSIS
1. Hearsay
(a) Medical Purpose Exception
Mora argues that the district court erred in admitting B.C.’s
statements to Bonin and Bleicher that Mora sexually abused
her. Mora contends that such statements were not pertinent to
medical diagnosis or treatment and that identification of the
abuser should not have been permitted because he was not in a
position to return home. We disagree.
[6-8] Statements made for purposes of medical diagnosis
or treatment and describing medical history, or past or pres-
ent symptoms, pain, or sensations, or the inception or gen-
eral character of the cause or external source thereof insofar
as reasonably pertinent to diagnosis or treatment are not
excluded by the hearsay rule.6 In order for statements to be
admissible under rule 803(3), the party seeking to introduce
the evidence must demonstrate (1) that the circumstances
3
State v. Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016).
4
State v. Mendez-Osorio, supra note 2.
5
Id.
6
Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016).
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under which the statements were made were such that the
declarant’s purpose in making the statements was to assist
in the provision of medical diagnosis or treatment and (2)
that the statements were of a nature reasonably pertinent to
medical diagnosis or treatment by a medical professional.7 A
statement is generally considered admissible under the medi-
cal purpose hearsay exception if gathered for dual medical and
investigatory purposes.8
B.C.’s statements to Bonin and Bleicher meet the admissibil-
ity requirements. B.C.’s statement to Bonin, a sexual assault
nurse examiner, came during Bonin’s examination which was
performed in a hospital’s emergency room. Bonin testified
that in conducting an examination, she wants to find out what
happened to help with her medical assessment. B.C.’s state-
ment to Bleicher, a doctor, occurred while Bleicher performed
a followup examination. Bleicher testified that she makes
­inquiries about what happened in order to determine whether
any further testing may be necessary and to help guide her
medical evaluation.
We have previously touched on whether statements regard-
ing the identity of the perpetrator could be admitted under rule
803(3). In State v. Vigil,9 we recognized that identity can be
pertinent to diagnosis and treatment:
While statements relating to fault are generally not
admissible under rule 803(3), when a child is sexually
abused, and especially when the child has a familial rela-
tionship with the child’s abuser, the identity of the perpe-
trator is reasonably pertinent to diagnosis and treatment,
because the victim cannot be effectively treated if sent
right back into the abuser’s clutches.
Mora claims the above reason for allowing the identity of the
perpetrator is inapplicable here. He points out that in Vigil, the
defendant was going to return home in approximately 1 week.
7
State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012).
8
Id.
9
Id. at 141, 810 N.W.2d at 698.
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On the other hand, Mora states that “it is fanciful to believe
that [he] would have been back in the family home.”10 But it
was not “fanciful” at the time of the examinations: Mora had
not been charged with a crime at the time of Bonin’s examina-
tion, and Bleicher’s examination occurred on the same day that
the State charged Mora with sexual assault.
Regardless, in Vigil, we concluded that the frequency and
nature of the victim’s sexual contacts with a perpetrator are
part of the victim’s medical history. The same is true of B.C.’s
sexual contacts with Mora. We conclude the district court did
not err in allowing Bonin and Bleicher to testify as to what
B.C. told them during their medical examinations.
(b) Excited Utterance Exception
Mora next argues that the district court erred by admitting
B.C.’s statements to Marcela and to Saldivar under the excited
utterance exception. B.C. made the statements after Rafael
had touched her, and Mora contends that “[t]he startling event
which the State relied upon did not relate to [Mora’s] purported
assault of the victim.”11
[9,10] Excited utterances are an exception to the hearsay
rule, because the spontaneity of excited utterances reduces
the risk of inaccuracies inasmuch as the statements are not
the result of a declarant’s conscious effort to make them.12
For a statement to be an excited utterance, the following cri-
teria must be met: (1) There must be a startling event; (2) the
statement must relate to the event; and (3) the declarant must
make the statement while under the stress of the event. The
true test is not when the exclamation was made, but whether,
under all the circumstances, the declarant was still speaking
under the stress of nervous excitement and shock caused by
the event.13
10
Brief for appellant at 35.
11
Id. at 30.
12
State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).
13
Id.
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[11-13] Assuming without deciding that the testimony was
inadmissible hearsay, any error was harmless. The improper
admission of evidence is a trial error and subject to harmless
error review.14 In a jury trial of a criminal case, an erroneous
evidentiary ruling results in prejudice to a defendant unless
the State demonstrates that the error was harmless beyond
a reasonable doubt.15 Where the evidence is cumulative and
there is other competent evidence to support the conviction,
the improper admission or exclusion of evidence is harmless
beyond a reasonable doubt.16 Here, there was ample evidence
to support Mora’s convictions even without these statements:
B.C. testified that the assaults occurred, a swab of Mora’s
penis contained B.C.’s DNA, and Mora admitted the assaults
to Marcela and an inmate.
2. Sufficiency of Evidence
Mora attacks the sufficiency of the evidence in a number of
ways. He claims that the State’s medical evidence and DNA
evidence did not establish Mora sexually assaulted B.C. He
also asserts that his purported admissions to Marcela and the
inmate were unreliable. Mora further argues that B.C.’s tes-
timony provided little detail about the assaults and that she
was inconsistent with regard to some of the details about the
September 19, 2015, assault. But these attacks are directed
at the credibility of witnesses and the weight to be given
to evidence—they were matters for the jury to consider. By
returning guilty verdicts, the jury rejected these arguments. On
appeal, our role is different.
As set out in our standard of review, the relevant question
for an appellate court in reviewing the sufficiency of the evi-
dence is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
14
State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
15
Id.
16
Id.
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have found the essential elements of the crime beyond a rea-
sonable doubt.17 Clearly, one could.
As applicable to the facts of this case, a person at least
19 years of age commits sexual assault of a child in the first
degree when he subjects another person under 12 years of
age to sexual penetration.18 And a person at least 19 years
of age commits sexual assault of a child in the third degree
when he subjects another person 14 years of age or younger
to sexual contact and does not cause serious personal injury
to the victim.19 At all relevant times, Mora was at least 19
years of age and B.C. was a person under 12 years of age.
B.C.’s testimony established that Mora subjected her to penile-
vaginal intercourse and that he touched her vagina with his
hands at various locations in Lincoln. The evidence supported
Mora’s convictions.
3. Excessiveness of Sentences
Mora argues that the district court abused its discretion by
imposing excessive sentences. He does not assert that the sen-
tences were outside the statutory ranges; rather, he contends
that the court should have imposed the minimum sentence
permitted by law, should have not imposed a life sentence as
the maximum term, and should have run all of the sentences
concurrent with one another.
[14-16] When imposing a sentence, the sentencing court
should customarily consider the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7)
the nature of the offense and (8) the violence involved in the
commission of the offense. However, the sentencing court is
not limited to any mathematically applied set of factors.20 The
17
State v. Dehning, 296 Neb. 537, 894 N.W.2d 331 (2017).
18
See Neb. Rev. Stat. § 28-319.01(1)(a) (Reissue 2016).
19
See Neb. Rev. Stat. § 28-320.01(1) and (3) (Reissue 2016).
20
State v. Dehning, supra note 17.
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appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and cir-
cumstances surrounding the defendant’s life.21 It is within the
discretion of the trial court to impose consecutive rather than
concurrent sentences for separate crimes.22
At the time of sentencing, Mora was 33 years old. Mora
described himself as coming from a “poor and humble family”
in Mexico. His prior criminal record consisted of minor traf-
fic violations. And his score on a sex offender risk assessment
tool placed him in the low risk range. But as the district court
stated: “[S]ociety has an obligation to protect those of a ten-
der age who are vulnerable and unable to protect themselves.
It is clear that [B.C.] loved you, she considered you to be her
father and trusted you, and you took advantage of that trust
and violated that trust.” And the violations occurred repeat-
edly over 4 years. We conclude that the court did not abuse its
discretion in imposing Mora’s sentences.
4. Suggestion of Plain Error
[17] The State asserted in its brief that the sentence
imposed for third degree sexual assault of a child pre-
sented plain error. According to the State, Neb. Rev. Stat.
§ 29-2204.02(4) (Reissue 2016) required the district court to
impose an indeterminate sentence. Plain error may be found
on appeal when an error unasserted or uncomplained of at
trial, but plainly evident from the record, prejudicially affects
a litigant’s substantial right and, if uncorrected, would result
in damage to the integrity, reputation, and fairness of the
judicial process.23
However, at oral argument, counsel for the State forth-
rightly conceded that there was no plain error. We agree. By
its terms, § 29-2204.02(4) applies to a Class IIIA felony “for
21
Id.
22
State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).
23
State v. Mendez-Osorio, supra note 2.
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an offense committed on or after August 30, 2015.” But in
this case, the charged offense straddled August 30, 2015. The
jury did not make any specific finding as to when the crime
occurred, and B.C.’s testimony about Mora’s assaults could
cover dates both before and after August 30. Another statute
adopted at the same time as § 29-2204.02(4) states that “an
offense shall be deemed to have been committed prior to
August 30, 2015, if any element of the offense occurred prior
to such date.”24 In the absence of a specific jury finding dem-
onstrating that the offense was “committed on or after August
30, 2015,”25 we find no plain error.
5. Ineffective Assistance of Counsel
[18] Finally, Mora claims that he received ineffective assist­
ance of trial counsel. When a defendant’s trial counsel is dif-
ferent from his or her counsel on direct appeal, the defendant
must raise on direct appeal any issue of trial counsel’s inef-
fective performance which is known to the defendant or is
apparent from the record. Otherwise, the issue will be proce-
durally barred.26
[19,20] On direct appeal, the resolution of ineffective assist­
ance of counsel claims turns upon the sufficiency of the
record.27 The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean that
it can be resolved. The determining factor is whether the record
is sufficient to adequately review the question.28 Both parties
assert that the record on appeal is insufficient to address any of
the ineffective assistance of counsel claims.
[21-23] But an appellate court can determine whether the
record proves or rebuts the merits of a claim of ineffective
24
Neb. Rev. Stat. § 28-116 (Reissue 2016).
25
§ 29-2204.02(4).
26
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
27
Id.
28
Id.
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assistance of trial counsel only if it has knowledge of the
specific conduct alleged to constitute deficient performance.29
An ineffective assistance of counsel claim is raised on direct
appeal when allegations of deficient performance are made
with enough particularity for (1) an appellate court to make a
determination of whether the claim can be decided upon the
trial record and (2) a district court later reviewing a petition
for postconviction relief to be able to recognize whether the
claim was brought before the appellate court.30 A claim insuf-
ficiently stated is no different than a claim not stated at all.31
We assess the sufficiency of Mora’s claims of ineffective
assist­ance of counsel.
(a) Failure to Adequately
Communicate
Mora assigns that trial counsel failed to adequately com-
municate with him to prepare a defense and to explore his
options. Mora contends that counsel “only met with him a few
times with an interpreter prior to the commencement of the
jury trial”32 and that counsel “did not engage in meaningful
conversations about the State’s evidence and what evidence
[Mora] had to rebut the charges he faced.”33 But these state-
ments are not sufficient allegations of deficient performance.
Mora also claims that due to the lack of communication, “he
was unable to make an informed decision about whether to
engage in plea negotiations, whether to accept a plea offer,
what defense to present at trial and whether he should testify
or remain silent.”34 But this is a conclusory statement that also
fails to set forth counsel’s deficiency. We believe the only
29
Id.
30
State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
31
State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
32
Brief for appellant at 46.
33
Id. at 46-47.
34
Id. at 47.
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sufficiently specific allegation regarding failure to commu-
nicate is that trial counsel “did not provide any discovery to
him, nor did he review the discovery that he had obtained from
the State with [Mora].”35 The record is insufficient to resolve
this claim.
(b) Right to Testify
Mora argues that counsel failed to properly advise him
about his right to testify and wrongly recommended that he not
testify. This allegation of deficient performance is sufficiently
stated, but the record is insufficient to review it.
(c) Penile Swab
Mora claims that counsel performed deficiently by failing
to have the penile swab retested and failing to retain an expert
witness to refute the State’s DNA evidence. He backs up this
statement by making specific arguments about what counsel
should have done and why. This allegation is also sufficiently
stated, but the record is insufficient to resolve it.
(d) Character Witnesses
Finally, Mora assigns that counsel failed to explore calling
character witnesses and to call such witnesses at trial. Mora
states that he provided information about witnesses counsel
could have interviewed. He states that “[t]hose witnesses were
individuals he worked with and the relatives and friends who
had seen him with [B.C. and Marcela] prior to the accusa-
tions being made against him.”36 Although Mora alludes to
what the witnesses would have testified to, he did not name
the individuals.
We have required a significant degree of specificity in such
claims. We explained that “we can think of no good reason
why [an appellant] would be unable to give appellate counsel
the names or descriptions of the uncalled witnesses he claims
35
Id.
36
Id. at 53.
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he informed trial counsel of.”37 And we previously expressed
concern “with the lack of any specificity as to who those
uncalled witnesses were from the standpoint of a potential
postconviction court’s ability to identify if a particular fail-
ure to call a witness claim is the same one that was raised on
direct appeal.”38
The same problem is present here. Mora’s purported
“descriptions” are too broad and indefinite and thus, fail
to alleviate our concern. Because Mora did not identify or
specifically describe the witnesses who he contends counsel
should have called upon, he failed to make sufficiently specific
allegations of deficient conduct.
VI. CONCLUSION
We conclude that the district court properly admitted state-
ments under the medical purpose hearsay exception, that
any error in admitting statements under the excited utterance
exception was harmless, that the evidence was sufficient, and
that the sentences imposed were not excessive or plainly erro-
neous. Finally, we conclude that Mora’s claims of ineffective
assistance of counsel are either not sufficiently presented for
our review or not able to be reviewed on the record before us.
We therefore affirm the judgment of the district court.
A ffirmed.
37
State v. Abdullah, supra note 31, 289 Neb. at 134, 853 N.W.2d at 867.
38
Id. at 133-34, 853 N.W.2d at 867.