State v. Lee , 304 Neb. 252 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/11/2019 09:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
STATE v. LEE
Cite as 304 Neb. 252
State of Nebraska, appellee,
v. Talon J. Lee, appellant.
___ N.W.2d ___
Filed October 11, 2019. No. S-18-702.
1. Rules of Evidence: Other Acts: Appeal and Error. An appellate court
reviews for abuse of discretion a trial court’s evidentiary rulings on the
admissibility of a defendant’s other crimes or bad acts under Neb. Evid.
R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), or under the
inextricably intertwined exception to the rule.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
3. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
4. Effectiveness of Counsel: Appeal and Error. 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. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
6. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
7. Rules of Evidence: Other Acts. Inextricably intertwined evidence
includes evidence that forms part of the factual setting of the crime, is
so blended or connected to the charged crime that proof of the charged
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crime will necessarily require proof of the other crimes or bad acts,
or is necessary for the prosecution to present a coherent picture of the
charged crime.
8. ____: ____. The State is entitled to present a coherent picture of the
facts of the crime charged, and evidence of other conduct that forms
an integral part of the crime charged is not rendered inadmissible
under Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2016),
merely because the acts are criminal in their own right, but have not
been charged.
9. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
10. Jury Instructions: Appeal and Error. All the jury instructions must
be read together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitat-
ing reversal.
11. ____: ____. Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower court’s
decision.
12. Sentences: Appeal and Error. When a trial court’s sentence is within
the statutory guidelines, the sentence will be disturbed by an appellate
court only when an abuse of discretion is shown.
13. Judgments: Words and Phrases. Abuse of discretion 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.
14. Sentences. The appropriateness of a sentence is necessarily a subjec-
tive judgment 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.
15. Effectiveness of Counsel: Appeal and Error. When a defendant’s
trial counsel is different from his or her counsel on direct appeal, the
defend­ant must raise on direct appeal any issue of trial counsel’s ineffec-
tive performance which is known to the defendant or is apparent from
the record.
16. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his
or her counsel’s performance was deficient and that this deficient per­
formance actually prejudiced the defendant’s defense.
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304 Nebraska R eports
STATE v. LEE
Cite as 304 Neb. 252
17. ____: ____. To show deficient performance in a claim of ineffective
assistance of counsel, a defendant must show that counsel’s performance
did not equal that of a lawyer with ordinary training and skill in crimi-
nal law.
18. ____: ____. To show prejudice in 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.
19. Effectiveness of Counsel: Records. Trial counsel cannot be ineffec-
tive for failing to do that which the record affirmatively establishes
was done.
20. Hearsay. Statements are not hearsay if they are offered to show the
effect on the listener.
Appeal from the District Court for Douglas County: Gary B.
R andall, Judge. Affirmed.
Stephen P. Kraft for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
Defendant was charged with two counts of sexual assault
of a child in the first degree, one count of attempted sexual
assault of a child in the first degree, one count of sexual assault
of a child in the third degree, and one count of incest with
a victim age 17 or under. After trial, a jury found defendant
guilty and convicted him on all charges. The district court
sentenced him to an aggregate period of 100 years’ to life
imprisonment, plus an additional imprisonment term of 32 to
73 years. Defendant appeals his convictions and sentences.
On appeal, defendant assigns a number of evidentiary errors,
including errors involving Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2016) (Rule 403); Neb. Evid. R. 404, Neb.
Rev. Stat. § 27-404 (Reissue 2016) (Rule 404); and Neb. Evid.
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STATE v. LEE
Cite as 304 Neb. 252
R. 412, Neb. Rev. Stat. § 27-412 (Reissue 2016) (Rule 412).
Defendant also alleges that the district court inappropriately
instructed the jury regarding venue in this case. We affirm the
decision of the district court.
II. FACTS
1. Charges
On September 19, 2017, the State of Nebraska charged
Talon J. Lee with two counts of sexual assault of a child in
the first degree, a Class IB felony; one count of attempted
sexual assault of a child in the first degree, a Class II felony;
one count of sexual assault of a child in the third degree, a
Class IIIA felony; and one count of incest with a victim age 17
or under, a Class IIA felony. The charges arose from reports of
Lee’s sexual abuse against R.W., Lee’s 10-year-old daughter,
and another girl, M.B., who was 9 to 10 years old at the time
of the alleged abuse. Lee pled not guilty to the State’s charges,
and the case proceeded to trial.
2. Motion in Limine
Prior to trial, the State made a motion in limine seeking
to admit at trial evidence of a sexual assault of R.W. that
occurred in Iowa shortly after the incidents of sexual assault
of R.W. and M.B. being charged in this case. Specifically,
the State wished to introduce at trial witness testimony as to
R.W.’s statements that Lee sexually penetrated her, made her
“play with his private part,” and showed her pornographic
videos at Lee’s Iowa home approximately 3 months after the
incidents occurring in Nebraska. The State’s motion alleged
that this evidence was relevant and admissible because it was
inextricably intertwined with Lee’s current charges and, thus,
not subject to Rule 404. Alternatively, the State alleged the
testimony was admissible under Rule 404(2) and Neb. Evid.
R. 414, Neb. Rev. Stat. § 27-414 (Reissue 2016) (Rule 414).
The State withdrew its argument regarding Rule 414, how-
ever, prior to the hearing. The defense claimed that the Iowa
incident should be excluded because, unlike other incidents
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STATE v. LEE
Cite as 304 Neb. 252
found to be admissible under our case law as inextricably
intertwined, the Iowa assault was not one continuous chain of
events. Further, defense counsel pointed out that according to
R.W.’s allegations, the incident in Iowa was the last incident to
occur. So, according to the defense, the Iowa incident formed
no part of the factual setting of the Nebraska charges and was
not inextricably intertwined.
The district court granted the State’s motion, ultimately
entering two orders on the matter. In its first order, entered
March 19, 2018, the court found that the Iowa incident was
relevant and material to the State’s charges. As such, the dis-
trict court concluded that the evidence related to the Iowa inci-
dent was inextricably intertwined to the State’s charges. In the
alternative, the district court concluded that the evidence of the
Iowa incident was admissible under Rule 414.
Subsequently, the district court entered a second order nunc
pro tunc to its previous order, where it removed its analysis
and conclusion relating to Rule 414, but reaffirmed its finding
that the evidence was inextricably intertwined. In doing so, the
district court stated:
[T]he evidence of sexual abuse in Council Bluffs[,] Iowa
is inextricably intertwined with the other allegations of
sexual abuse [Lee] perpetrated on his daughter over the
period of time alleged by the State and is so blended or
connected to the charged crimes that it will be neces-
sary to show a complete and coherent picture of this
relationship.
3. Lee’s Rule 412 Motion
Lee filed a pretrial motion to obtain permission to adduce
testimony about R.W.’s having been sexually abused in the
past by her biological brother. According to Lee’s motion,
this evidence was relevant to show that someone other than
the accused was the “source of injury” to R.W. Lee’s motion
alleged that such evidence was admissible under Rule 412 and
that the exclusion of such evidence would “violate [his] consti-
tutional rights.”
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Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
STATE v. LEE
Cite as 304 Neb. 252
At the hearing on Lee’s Rule 412 motion, Lee asserted that
during the investigation in this case, R.W. disclosed that she
was sexually abused by her brother at some point around 2016,
when she was approximately 10 years old. R.W. reportedly
indicated that her brother tried to penetrate her with his penis
in the same way that Lee did. Lee acknowledged that R.W.’s
brother had not been adjudicated of the allegations, but noted
that there was a juvenile proceeding pending against him per-
taining to these allegations.
Lee argued that this alleged prior sexual assault of R.W.
was relevant to show how R.W. had a “prior source of
sexual knowledge.” In other words, Lee explained, the jury
would likely be wondering how R.W., as a 10-year-old child,
could possess the type of sexual knowledge she has if she
was not sexually abused by Lee. The fact she has been sex­
ually abused by her brother in the past would show why she
has such knowledge and that it came from a source other
than Lee.
The State disagreed and argued that this evidence was
inadmissible and improper because it would lead to a cred-
ibility debate regarding R.W.’s allegations in the separate and
unrelated matter, which would create “a trial within a trial.”
Based on this, the State argued that any probative value of
the incident would be outweighed by the danger of unfair
prejudice.
The district court denied Lee’s motion and ruled that the
evidence at issue was inadmissible. The district court entered a
written order on the matter, which concluded:
There is no evidence the acts of [R.W.’s brother] have
any relevance to the sexual assault committed by [Lee]
or that the sexual behavior of R.W. incident to being
assaulted by [her brother] in any way contributed to any
physical injury of R.W. The court does not find the same
to be relevant nor material to the charges against [Lee]
nor would exclusion of this evidence violate the constitu-
tional rights of [Lee].
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Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
STATE v. LEE
Cite as 304 Neb. 252
4. Trial
At trial, the State elicited testimony from both victims; the
victims’ mothers; several members of law enforcement from
both Omaha, Nebraska, and Iowa; and a physician who exam-
ined R.W. The State also called witnesses employed by Project
Harmony, a child advocacy center that serves children when
there have been allegations of abuse, who were involved in
the investigation. The Project Harmony employees included a
pediatric nurse who examined and interviewed R.W. and M.B.
and a forensic interviewer who examined and interviewed
R.W. and M.B. The defense offered testimony from Lee’s wife,
Nikisha Lee.
(a) Incidents
Testimony from R.W., M.B., and the victims’ mothers estab-
lished the following facts.
From the fall of 2016 to the spring of 2017, Lee was living
with Nikisha in Council Bluffs, Iowa. R.W. lived with Lee and
Nikisha in November and December 2016. Aside from those 2
months, R.W. lived in Omaha with her mother.
The victims’ mothers testified that they knew each other
because they both have children with Lee. Lee fathered at
least one of M.B.’s siblings. R.W. would often spend time with
M.B. and her siblings. Lee would occasionally watch R.W.
and M.B. when he was in Omaha, which is when the alleged
incidents occurred. Lee was 29 years old at the time of the
alleged incidents.
After R.W. moved back to Omaha to live with her mother,
R.W. and her mother stayed for a few weeks with one of
R.W.’s mother’s friends, Jasmine Kelly. One night at approxi-
mately 5 p.m., while they were staying with Kelly, Lee arrived
unannounced and took R.W. to a store. When Lee and R.W.
were leaving for the store, R.W.’s mother also left to run an
errand. R.W.’s mother testified that this errand took about 30 to
45 minutes. When she returned to Kelly’s house, Lee and R.W.
were still gone. R.W.’s mother testified that she called Lee to
find out where they were, because it was a school night and
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STATE v. LEE
Cite as 304 Neb. 252
R.W. needed to get home. Lee responded that they were “down
the street” and would be home soon. As more time passed and
Lee and R.W. still were not home, R.W.’s mother continued to
call Lee. R.W.’s mother testified that she called Lee roughly 50
times that night and that Lee answered only a couple of those
calls. Lee eventually brought R.W. home around midnight.
R.W. testified that after she and Lee left Kelly’s house that
night, Lee drove her to a “dark place” where there was a build-
ing with gates and a “bunch of trees.” Lee parked the car and
asked R.W., “Can you do me a favor?” R.W. agreed, and Lee
proceeded to suck on her finger and say “‘no teeth.’” Lee then
asked her to suck his “private part” and told her he would
take her to the store afterward. Lee put his “private part” in
her mouth, and she sucked on it until “[s]ome stuff” went into
her mouth, which she said tasted “[n]asty.” R.W. testified that
her mother called Lee’s cell phone several times but Lee told
her not to answer it, so she did not. Lee also told her not to
tell anyone about what happened. He took her to the store and
eventually back to Kelly’s house. R.W. testified that she did not
tell anyone what happened when she got back to Kelly’s home,
because she was scared.
R.W. testified that another incident of abuse occurred when
she was having a sleepover with M.B. at M.B.’s house. R.W.
and M.B. woke up when they heard a deep voice downstairs.
The girls went downstairs and learned that the voice was Lee’s.
R.W. and M.B. then sat on the couch and started playing “Truth
or Dare.” Eventually, Lee sat between them and told the girls
that they were going to play “Dirty Truth or Dare.”
R.W. testified that Lee made M.B. do the first dare and told
her to suck his “private part” and said, “[Y]ou got to wake him
up,” referring to his penis as “him.” Lee told M.B. to “play
with it” to “wake it up,” and she complied. Lee told her to
suck it, and it “got bigger in her mouth.” Then, according to
R.W., while M.B. was sucking on Lee’s penis, Lee told R.W.
to pick a dare, which she did, and he “made me play with it
while she was sucking it.” Lee then had R.W. and M.B. take
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STATE v. LEE
Cite as 304 Neb. 252
turns sucking it. R.W. testified that as this was going on, Lee
also played a video on his cell phone of “[a] girl sucking a boy
private part.”
M.B., through her testimony, confirmed that she and R.W.
played a game of “Dirty Truth or Dare” with Lee in her base-
ment the morning after R.W. spent the night. She testified that
when she or R.W. would pick a dare, he would ask them to
suck his “private part” or to lick each other’s “boobs,” but that
they said no. Then, he asked R.W. “to let him finger her,” but
R.W. again said no. M.B. said she and R.W. went upstairs for
a while. When they came back downstairs, Lee was on his cell
phone “watching porn,” which she described as girls with no
clothes touching each other and doing “nasty things.” Then,
according to M.B., Lee pulled R.W. over next to him and told
R.W. to “lick his private part,” which R.W. did. M.B. stated
that Lee then made M.B. move her hand up and down on his
penis. M.B. testified that Lee also asked her to suck his penis
but that she said no.
R.W. and M.B. testified that on another day at M.B.’s house,
they played “Hide and Seek” with Lee. When Lee found where
R.W. and M.B. were hiding, he told them to kiss each other.
Lee wanted them to kiss on the lips or to put their tongues
in each other’s mouths, but they kissed on the cheek instead.
R.W. testified that Lee also made them strip down to their
underwear and a tank top and that he touched both of them on
the buttocks.
According to R.W. and M.B, on one of the same days that
they played “Truth or Dare” or “Hide and Seek,” Lee called
R.W. and M.B. into M.B.’s mother’s bedroom, where Lee was
lying on the floor next to the bed. Lee asked the girls to “sit
on his private part,” which neither of them did. According to
M.B., Lee then pulled R.W. toward him and had her sit on his
stomach. R.W. testified that she thought Lee had his clothes
on during this incident, but M.B. testified that he did not have
any clothes on and recalled seeing his “private part” when
this occurred.
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STATE v. LEE
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R.W. testified about another incident, involving only R.W.
and Lee, which occurred at Lee and Nikisha’s house in Council
Bluffs. R.W. testified that one day, when Nikisha was not
home, Lee was lying on the bed in his bedroom and he called
her into the room to ask for a “favor.” They watched another
pornographic video, and Lee asked R.W. to play with his penis.
R.W. complied. R.W. testified that Lee told her to take off her
pants, which she did. Lee then stood up behind her and put
his penis inside her buttocks and vagina. R.W. testified that it
hurt, so she told Lee she needed to go to the bathroom, where
she noticed that she was bleeding from her anus. When she
told Lee about it, he told her to get into the bathtub. R.W.
testified that this incident in Council Bluffs was the last time
Lee did anything to her, although on cross-examination, she
gave differing responses on the timeline of the sexual assaults.
Lee objected to the evidence about the Council Bluffs incident
on Rule 404 grounds. Lee received a continuing objection
on these grounds to the testimony relating to the incident in
Council Bluffs.
R.W. testified that she did not initially tell anyone about
any of these incidents, because Lee had told her and M.B. that
he would “make up a bad lie” about them if they ever did so.
Later that summer, however, in June 2017, R.W. decided to
tell M.B.’s aunt about what Lee had been doing to her while
she was at M.B.’s mother’s house with M.B. M.B.’s aunt
relayed this disclosure to M.B.’s mother, who, in turn, told
R.W.’s mother.
R.W.’s mother testified that she got a call from M.B.’s
mother on the night of June 22, 2017, while she was at work.
R.W.’s mother immediately called R.W. and spoke with her
about what she’d heard from M.B.’s mother. R.W.’s mother
testified that when R.W. told her about the incident in Lee’s
car, it all “ma[de] sense,” because she remembered “calling,
calling, calling” Lee’s cell phone on the night he took R.W. to
the store. R.W.’s mother called M.B.’s mother again after that,
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because, based on what R.W. told her, it appeared the abuse
also involved M.B.
R.W.’s mother testified that she left work that night to take
R.W. to an emergency room. She said that after the abuse was
revealed, R.W. started acting out at school and getting into
fights, and that she eventually got “kicked out of school.”
On June 23, 2017, after speaking further with M.B., M.B.’s
mother filed a police report regarding the sexual assault of
M.B. M.B.’s mother testified that when she spoke with M.B.
about what she had heard, M.B. started to cry and eventually
told her things that had happened, which disclosure led to her
decision to file a police report. M.B.’s mother confirmed that
her house was in Omaha and said that she could recall three
times that Lee came over to her house and watched the chil-
dren in February and March 2017.
(b) Dr. Cynthia Hernandez
R.W. was seen at an emergency room in the early morn-
ing hours of June 23, 2017. The doctor who examined R.W.,
Dr. Cynthia Hernandez, testified that she spoke with R.W.
about why she was there. R.W. told her that on one occasion,
Lee put his penis in her mouth until “white stuff” came out,
and that on another occasion, he put his penis in her vagina
and anus, which caused her to bleed. Hernandez testified
that R.W. told her that one of the incidents occurred about
1 month earlier and the other about 2 months earlier. When
Hernandez examined R.W., she did not find any signs of
physical injury and referred R.W. to Project Harmony for a
more detailed examination. Hernandez explained that this
was not surprising given how much time had passed since
the incidents. Hernandez also testified that, in general, it is
not uncommon in cases of sexual assault for there to be no
physical signs of trauma. However, on cross-examination,
Hernandez agreed that signs of internal injury, especially with
anal penetration, could possibly be detected months after an
assault had occurred.
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(c) Law Enforcement
The State elicited testimony from several law enforcement
officers who were involved in the joint investigation that was
being conducted by the Omaha Police Department (OPD) and
the Council Bluffs Police Department (CBPD).
Amber Kennedy, the lead detective for CBPD, testified
that the date range for CBPD’s investigation was January 1
to May 13, 2017. Kennedy described that Project Harmony
had originally referred the case to CBPD. She had watched
the video-recorded forensic interview and determined it con-
tained evidence to show that a crime had been committed in
Omaha and also in Council Bluffs. After reviewing all of the
evidence, CBPD decided that OPD needed to be involved as
well, because it appeared that their investigations would over-
lap. Kennedy testified that CBPD and OPD were aware of each
other’s investigations and maintained communication through-
out the investigations, which ultimately led to Lee’s arrest.
Though it was asserted by Kennedy that charges have been
filed in Iowa, there was no evidence presented of the charges
and it was conceded that a trial had not occurred regarding the
alleged incidents in Council Bluffs.
From OPD, the State examined Mark McKenna and Lisa
Crouch. McKenna testified that he was the officer who took
M.B.’s mother’s report of the sexual abuse of M.B. McKenna
confirmed that M.B.’s mother identified Lee in her report.
Upon the filing of the report, McKenna forwarded the investi-
gation to the child victim sexual assault unit.
Crouch testified that she was a detective in the special
victims unit, specifically the child victim sexual assault unit.
Crouch testified that the date range of their investigation was
January to March 2017. She stated that her involvement in this
case began when an information report was generated through
OPD indicating possible sexual abuse. Crouch stated that upon
receiving that assignment, she received other information while
observing a video-recorded forensic interview of R.W. by a
forensic examiner at Project Harmony.
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(d) Project Harmony
(i) Amy Cirian
The State called Amy Cirian, a forensic interviewer at
Project Harmony who interviewed R.W. and M.B regard-
ing the reported assaults. Cirian testified as to R.W.’s and
M.B.’s demeanors throughout the forensic interview. Cirian
described R.W.’s demeanor as calm but a little nervous and
“fidgety,” while M.B. was calm throughout most of her inter-
view. Cirian opined that there is no singular demeanor that she
would expect a child to have when discussing sexual abuse,
because many children react differently. She noted further
that it is not her role to determine the credibility or reliability
of the girls’ statements or disclosures, but, rather, to simply
gather information throughout the interview process as to the
abuse allegations.
At the outset of this demeanor testimony, defense counsel
objected on the basis of relevance, which was overruled by
the district court. On cross-examination, defense counsel elic-
ited testimony from Cirian that just as there is no particular
behavior she can look to in order to determine whether a child
has been sexually abused, there is no way of determining from
behavior whether a child has not been abused.
Cirian also testified as to certain procedures and protocols
that are followed throughout these interviews. Cirian’s testi-
mony specifically detailed what actions were taken or what
protocols were triggered in response to the girls’ disclosures.
Cirian testified that per these protocols, she is required to meet
with the multidisciplinary team only when there is a sexual
assault disclosure made at the forensic interview. Cirian stated
that she met with the multidisciplinary team after interviewing
the girls.
(ii) Sarah Cleaver
R.W. and M.B. were examined by a pediatric nurse prac-
titioner at Project Harmony. Both of their physical examina-
tions came back normal with no signs of injury or sexually
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transmitted diseases. The nurse practitioner, Sarah Cleaver,
who has conducted over 1,000 sexual assault examinations,
testified that it is normal to find no signs of physical injury in
child sexual assaults, because children often do not disclose
right away and their bodies heal very quickly. Cleaver testi-
fied that an estimated 95 percent of children who report sexual
abuse have normal physical examinations.
Cleaver testified that during R.W.’s examination, R.W. indi-
cated that Lee’s penis had been in her mouth more than once
and that his ejaculate had been in her mouth. Cleaver also
stated R.W. claimed that Lee had penetrated her anus with
his penis one time and that he took the condom off and con-
tinued to penetrate her anus, but that there was no ejaculate.
R.W. reported that bleeding followed after she was penetrated
anally. Cleaver testified that R.W. reported that Lee penetrated
R.W. vaginally while wearing a condom. Finally, Cleaver testi-
fied that M.B. indicated during her examination that Lee had
touched her buttocks over her clothes and had made her touch
his penis with her hand.
(e) Nikisha
After the State rested, Lee called Nikisha to testify. Nikisha
confirmed that R.W. would occasionally stay with her and Lee
between January and March 2017. She testified that when R.W.
stayed with them in Council Bluffs, they always interacted as
a family and Lee was never alone with R.W. at their home.
The only interactions Nikisha observed between Lee and R.W.
were normal father-daughter activities. Nikisha acknowledged,
however, that Lee would occasionally go to Omaha without
her to care for his other children and that he may have had
contact with R.W. and M.B. at those times.
5. Jury Instruction Conference
At the close of all the evidence, the parties held a jury
instruction conference outside the presence of the jury. During
the conference, the parties focused on the venue element
of count I, sexual assault of a child in the first degree, and
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count V, incest with a victim age 17 or younger. The disputed
venue elements were addressed in jury instructions Nos. 5
and 6.
The relevant portion of jury instruction No. 5 provided:
COUNT I
....
The material elements which the State must prove by
evidence beyond a reasonable doubt, in order to convict
the Defendant of the crime of First Degree Sexual Assault
on a Child as charged in the Amended Information are:
1. That on or about January 1[,] 2017 through January
31, 2017, the Defendant, Talon Lee, did subject [R.W.] to
sexual penetration;
2. That Defendant, Talon Lee, (a) did so in Douglas
County, Nebraska, or (b) brought [R.W.] into or out of
Douglas County, Nebraska in the commission of the
offense, or (c) did an act in Douglas County, Nebraska
instigating, procuring, promoting, or aiding in the com-
mission of the offense;
3. That at that time Talon Lee was nineteen years of
age or older; and
4. That at that time, [R.W.] was under twelve years
of age.
....
COUNT V
....
The material elements which the State must prove by
evidence beyond a reasonable doubt, in order to convict
the Defendant of the crime of Incest of a Victim 17 or
Under as charged in the Amended Information are:
1. That on or about January 1, 2017 through January
31, 2017, the Defendant Talon Lee did knowingly engage
in sexual penetration with [R.W.];
2. That Defendant, Talon Lee, (a) did so in Douglas
County, Nebraska, or (b) brought [R.W.] into or out of
Douglas County, Nebraska in the commission of the
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offense, or (c) did an act in Douglas County, Nebraska
instigating, procuring, promoting, or aiding in the com-
mission of the offense;
3. That Talon Lee and [R.W.] are parent and child; and
4. That at that time, [R.W.] was under eighteen years
of age.
Also related to the venue element of counts I and V, jury
instruction No. 6 provided:
According to the law in the State of Nebraska, when
an offense is committed in this state, in a car or motor
vehicle, the accused may be tried in any county through,
on or over which the vehicle passes in the course of its
trip, or in the county in which the trip terminates.
Lee objected solely to the venue element definitions for
counts I and V of jury instruction No. 5, arguing that it incor-
rectly incorporated language from Neb. Rev. Stat. § 29-1301.01
(Reissue 2016). Lee argued that this statute was inapplicable
to this case, because it applies only when an offense is alleged
to have occurred in different counties within the state, which
was not the case here. Lee argued that this case involved
the possibility that Lee “crosse[d] a state line” in the proc­
ess of committing the alleged offense, but that it did not
involve an allegation that it occurred in two different coun-
ties within Nebraska. As such, Lee argued that § 29-1301.01
was inapplicable.
The State disagreed and argued that jury instruction No.
5 correctly incorporated § 29-1301.01. The State noted that
there was no evidence the offense in Lee’s car occurred in
Iowa or some other state, but argued that instruction No. 5, as
written, nonetheless appropriately addressed the notion that a
portion of the offense could have occurred in Douglas County
while another portion of the offense could have occurred
elsewhere.
Ultimately, the district court agreed with the State and over-
ruled Lee’s objection to jury instruction No. 5. The court read
jury instruction No. 5 as written.
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Neither party objected to jury instruction No. 6. Jury
instruction No. 6 incorporated the language of Neb. Rev. Stat.
§ 29-1301.02 (Reissue 2016), which relatedly addresses venue
for crimes committed on moving means of transportation.
6. Jury Verdict and Sentencing
The jury found Lee guilty as charged on all five counts. In
June 2018, the sentencing hearing was held. The district court
reviewed the presentence investigation report and considered
Lee’s age, mentality, education, experience, social and cul-
tural background, criminal record, and law-abiding conduct,
as well as the motivations for these offenses and the nature of
the offenses, including the presence or absence of violence.
Based on this information, the court determined that Lee was
a dangerous sexual predator and sentenced him as follows: 50
years’ to life imprisonment on count I, sexual assault of a child
in the first degree; 50 years’ to life imprisonment on count II,
sexual assault of a child in the first degree; 20 to 50 years’
imprisonment on count III, attempted sexual assault of a child
in the first degree; 2 to 3 years’ imprisonment on count IV,
sexual assault of a child in the third degree; and 10 to 20 years’
imprisonment on count V, incest with a victim age 17 or under.
Lee’s sentences were ordered to run consecutively, resulting in
an aggregate period of 100 years’ to life imprisonment, plus
an additional term of 32 to 73 years’ imprisonment. Lee was
also ordered to register as a sex offender under Nebraska’s Sex
Offender Registration Act.
III. ASSIGNMENTS OF ERROR
Lee assigns, restated and renumbered, that the district court
erred by (1) granting the State’s motion to allow evidence that
Lee sexually assaulted R.W. in the State of Iowa, (2) denying
Lee’s Rule 412 motion, (3) giving erroneous and misleading
jury instructions which relieved the State from proving essen-
tial elements of the crimes charged, (4) failing to give a limit-
ing instruction, and (5) imposing excessive sentences.
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He also assigns that he received ineffective assistance of
counsel at trial, because his trial counsel did not perform at
least as well as a criminal lawyer with ordinary training and
skill in the area and such deficient performance prejudiced
his defense. Lee specifically asserts that his trial counsel (1)
made inappropriate comments to the prosecutor and Lee, (2)
did not review discovery with him, (3) told Lee that he could
not call witnesses he wished to call at trial, (4) failed to
raise a Batson1 challenge, (5) failed to litigate Lee’s motion
to sever charges, and (6) failed to object to improper hear-
say evidence.
IV. STANDARD OF REVIEW
[1] An appellate court reviews for abuse of discretion a trial
court’s evidentiary rulings on the admissibility of a defend­
ant’s other crimes or bad acts under Rule 404(2), or under the
inextricably intertwined exception to the rule.2
[2,3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules;
judicial discretion is involved only when the rules make discre-
tion a factor in determining admissibility.3 Where the Nebraska
Evidence Rules commit the evidentiary question at issue to
the discretion of the trial court, an appellate court reviews the
admissibility of evidence for an abuse of discretion.4
[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
1
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
2
State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
3
Id.
4
Id.
5
State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).
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[5] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision.6
[6] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.7
V. ANALYSIS
Lee argues that the district court erred by (1) granting the
State’s motion to allow evidence that Lee sexually assaulted
R.W. in the State of Iowa, (2) denying Lee’s Rule 412 motion,
(3) giving erroneous and misleading jury instructions which
relieved the State from proving essential elements of the
crimes charged and failing to give a limiting instruction, and
(4) imposing excessive sentences. Lee also asserts that he
received ineffective assistance of counsel throughout his pro-
ceedings below. We affirm the decision of the district court.
1. Inextricably Intertwined Incident
At the outset, Lee assigns that the district court abused its
discretion by granting the State’s motion in limine, allowing
it to admit evidence regarding R.W.’s sexual assault allega-
tions that occurred in Iowa, and, relatedly, overruling Lee’s
renewed objections at trial to the admission of that evi-
dence. In its order on the motion in limine, the district court
concluded:
[T]he evidence of sexual abuse in Council Bluffs[,] Iowa
is inextricably intertwined with the other allegations of
sexual abuse [Lee] perpetrated on his daughter over the
period of time alleged by the State and is so blended or
connected to the charged crimes that it will be neces-
sary to show a complete and coherent picture of this
relationship.
6
State v. Paez, 302 Neb. 676, 925 N.W.2d 75 (2019).
7
State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019).
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Lee, however, claims the evidence regarding the alleged inci-
dent of sexual assault in Iowa was inadmissible under Rule
404 and should have been excluded at trial. Specifically, Lee
argues that the court failed to conduct a hearing pursuant to
Rule 404(3) finding clear and convincing evidence of the
other crime.
[7,8] We agree with the district court that Rule 404 did
not apply, because the alleged Iowa incident was inextricably
intertwined with the crimes charged.8 Further, since Rule 404
did not apply, the court was not required to conduct a hearing
under Rule 404(3). Inextricably intertwined evidence includes
evidence that forms part of the factual setting of the crime, is
so blended or connected to the charged crime that proof of the
charged crime will necessarily require proof of the other crimes
or bad acts, or is necessary for the prosecution to present a
coherent picture of the charged crime.9 The State is entitled to
present a coherent picture of the facts of the crime charged,
and evidence of other conduct that forms an integral part of
the crime charged is not rendered inadmissible under Rule 404
merely because the acts are criminal in their own right, but
have not been charged.10
The State asserts that evidence of the Iowa incident was
integral to the development of an accurate timeline in this
case.11 The State asserts that without the evidence of the Iowa
incident, it would have appeared that it took R.W. much longer
to disclose the sexual abuse than it actually did. Further, the
absence of such evidence would have created a misleadingly
incoherent picture that would have adversely impacted R.W.’s
credibility.12 We agree.
8
See State v. Burries, supra note 2.
9
See id.
10
State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v. Kelly,
20 Neb. Ct. App. 871, 835 N.W.2d 79 (2013).
11
See id.
12
See id.
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Our precedent shows that we have upheld the admission
of evidence under the inextricably intertwined rule when the
defendant’s other bad acts showed his pattern of sexually abus-
ing a child or exposing the child to sexually explicit material.13
For example, in State v. Baker,14 we held that the inextricably
intertwined exception applied where the defendant’s other bad
acts showed his pattern of sexually abusing the victim. In
Baker, the State’s evidence included the victim’s testimony
that the defendant had threatened her with harm if she reported
him, the mother’s testimony that the defendant threatened her
and physically assaulted her if she did not bring the victim to
the bedroom at his direction, and the mother’s testimony that
the defendant became sexually aroused while watching the vic-
tim administer a massage. The defendant claimed this evidence
was inadmissible under Rule 404(2), but we concluded the
State was entitled to present this evidence as part of a coherent
factual setting of the crime.
We likewise conclude here that the district court did not
abuse its discretion in determining the evidence of a subse-
quent sexual assault involving the same victim was inextricably
intertwined with the charged offenses. The evidence adduced
at trial established that R.W. and her mother were living in
Omaha with Kelly, one of R.W.’s mother’s friends, in January
2017 when Lee sexually assaulted R.W. in his car, which was
the first incident of sexual assault that occurred. Throughout
R.W.’s testimony, she had difficulty providing the exact dates
of the subsequent sexual assaults at M.B.’s house. Nevertheless,
R.W. recalled that the incident in Iowa was the last incident
that had occurred. This information was significant, because
Hernandez testified that when R.W. spoke with her at the emer-
gency room on June 23, 2017, R.W. told Hernandez that the
most recent incident occurred about 1 month earlier and that
13
See, e.g., State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010); State v.
McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003).
14
State v. Baker, supra note 13. See, also, State v. Cullen, 292 Neb. 30, 870
N.W.2d 784 (2015).
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another incident occurred about 2 months earlier. This infor-
mation in its entirety creates a timeline demonstrating that the
sexual assaults charged occurred in Omaha, lending coherence
as to why R.W. would have reported to Hernandez that the last
assault occurred around May 2017.
R.W.’s testimony of the Iowa incident forms the factual
setting of the charged offenses and is necessary to present a
complete and coherent picture of the facts of this case. Such
evidence showed a pattern of Lee’s sexually abusing R.W.
and exposing her to sexually explicit material. Based on this,
it cannot be said that the district court abused its discretion in
admitting the testimony regarding the alleged Iowa incident
into evidence.
2. Defendant’s Rule 412 Motion
Next, Lee assigns that the district court abused its discre-
tion in denying Lee’s motion under Rule 412 seeking to admit
testimony regarding R.W.’s sexual assault allegation against
her brother. Lee argues that he was prejudiced by the dis-
trict court’s denial of his motion, because evidence of R.W.’s
alleged sexual assault by her brother would be relevant to show
a “prior source of [R.W.’s] ‘sexual knowledge.’”15 The State
opposed the motion and argued that this evidence was more
prejudicial than probative because it would result in a “trial
within a trial.” The district court agreed with the State’s argu-
ment and reasoned, “How do we know her brother didn’t do all
of these things? . . . I don’t think we’re going to put [R.W] on
trial on that issue.”
In denying Lee’s request, the district court stated:
There is no evidence the acts of [R.W.’s brother] have
any relevance to the sexual assault committed by [Lee]
or that the sexual behavior of R.W. incident to being
assaulted by [her brother] in any way contributed to any
physical injury of R.W. The court does not find the same
to be relevant nor material to the charges against [Lee]
15
See brief for appellant at 32.
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nor would exclusion of this evidence violate the constitu-
tional rights of [Lee].
It is apparent from the hearing on Lee’s motion and the district
court’s subsequent order that it excluded the evidence upon
both Rule 403 and Rule 412 grounds.
Lee claims that this case is similar to State v. Lavalleur,16
in which we held it was reversible error to exclude evidence
of other independent sexual acts involving the victim. In
Lavalleur, the State had charged the defendant with sexually
assaulting the victim, who was a friend and coworker of the
defendant. At trial, the defendant sought to introduce evidence
that the victim was involved in an intimate relationship with
a third party on the date in question, which, according to the
defense, gave the victim a motive to falsely report the sexual
assault against the defendant to preserve her relationship with
the third party. The trial court excluded the evidence, find-
ing that it was irrelevant under Rule 403 and inadmissible
under Rule 412. In reversing, we explained that Rule 412
generally prohibits evidence only of sexual predisposition or
“‘sexual behavior,’” which we explained refers to specific
instances of conduct.17 We explained that “‘[i]f question-
ing about [a] subject were to lead to evidence or questions
about details of particular acts, encounters, or practices, then
such evidence and quests are indeed covered by rape shield
legislation . . . .’”18 But, we reasoned that the mere fact that
the complaining witness is in an ongoing relationship raises
no such concerns about details of particular acts, encounters,
or practices, because being in an ongoing relationship is not
ordinarily described as “‘sexual conduct,’” even if the rela-
tionship involves ongoing sexual intimacy.19 Accordingly, we
found that the evidence the defendant sought to introduce was
16
State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).
17
Id. at 111, 853 N.W.2d at 212.
18
Id.
19
Id.
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not precluded and that it was both relevant and material to the
defense that the victim had a motive to lie about the nature
of her sexual encounter with the defendant to “dispel any air
of infidelity.”20
Here, unlike Lavalleur, the defense was not seeking to
attack the credibility of R.W. by showing that she was involved
in another ongoing relationship which gave her a motive to lie
about the allegations against Lee. Rather, Lee sought to intro-
duce this evidence to show that there was some other conceiv-
able basis for R.W.’s sexual knowledge. Lee asserts that the
evidence of R.W.’s prior alleged sexual abuse by her brother
was particularly relevant in this case because, without this
evidence, “the only conclusion for the jury to make is that this
allegation against [Lee] must have occurred or how else would
this child know about this sort of behavior.”21
Such evidence requires a finding of admissibility under both
Rule 403 and Rule 412. Here, the district court agreed with the
State’s argument that the evidence would be more prejudicial
than probative and thus was not admissible under Rule 403. We
do not believe the district court abused its discretion in reach-
ing that conclusion. R.W.’s brother had not been convicted or
adjudicated of the allegations that he had sexually assaulted
R.W. As a result, admission of the evidence would have led to
a potentially distracting “trial within a trial” which would have
substantially risked confusing the issues and misleading the
jury. Moreover, an inquiry into whether R.W. was also abused
by her brother would have done nothing to offset M.B.’s testi-
mony that Lee had abused her.
3. Jury Instructions
Next, Lee asserts that the district court erred in giving jury
instruction No. 5, because it was misleading and relieved the
State from proving an essential element of the crimes charged.
20
Id. at 115, 853 N.W.2d at 214.
21
Brief for appellant at 32-33.
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Specifically, Lee asserts that the district court erred by failing
to properly instruct the jury regarding venue on both count I
(first degree sexual assault of R.W.) and count V (incest of
R.W.), both of which pertained to the first incident in Lee’s car
in January 2017.
Relatedly, Lee assigns that the district court erred by fail-
ing to give a limiting instruction to the jury on the importance
of keeping separate during its deliberations the charges from
the evidence related to those charges. However, based on the
record, Lee did not object to the court’s jury instructions on this
basis at the trial court level. He made an objection solely as to
jury instruction No. 5. An issue not presented to or decided on
by the trial court is not an appropriate issue for consideration
on appeal.22 Because this assignment was not raised below, we
address only Lee’s assignment of error regarding jury instruc-
tion No. 5.
[9-11] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.23 All the jury
instructions must be read together, and if, taken as a whole,
they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evi-
dence, there is no prejudicial error necessitating reversal.24
Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision.25
Lee maintains that jury instruction No. 5 incorrectly
instructed the jury regarding venue on counts I and V, because
the instruction did not limit the venue to Douglas County, or
even Nebraska. He claims that jury instruction No. 5 allowed
22
Ecker v. E & A Consulting Group, 302 Neb. 578, 924 N.W.2d 671 (2019).
23
State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).
24
Id.
25
State v. Paez, supra note 6.
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the jury to find him guilty on counts I and V if they believed
that these counts occurred “anywhere,” which effectively
relieved the State of its burden to prove venue on these
counts.26 He argues that the overbreadth of this instruction was
especially prejudicial because of the evidence presented at trial
regarding Lee’s alleged sexual abuse of R.W. in Iowa.
Jury instructions Nos. 5 and 6, read together, set forth the
elements for venue in this case. Jury instruction No. 5, specifi-
cally subsection 2, incorporated the language of § 29-1301.01
and provided that one of the material elements which must be
proved was
[t]hat Defendant, Talon Lee, (a) did so in Douglas County,
Nebraska, or (b) brought [R.W.] into or out of Douglas
County, Nebraska in the commission of the offense, or
(c) did an act in Douglas County, Nebraska instigating,
procuring, promoting, or aiding in the commission of
the offense.
Jury instruction No. 6 similarly incorporates language from
§ 29-1301.02 and provided: “[W]hen an offense is commit-
ted in this state, in a car or motor vehicle, the accused may
be tried in any county through, on or over which the vehicle
passes in the course of its trip, or in the county in which the
trip terminates.”
Reading jury instructions Nos. 5 and 6 together, we disagree
with Lee’s argument. When these instructions are read in con-
junction, they correctly instruct the jury that the offenses that
occurred in a motor vehicle (counts I and V) must have been
“committed in this state.” Further, based on the record before
us, there was no evidence presented that would indicate that
the relevant incident occurring between Lee and R.W. in his
car occurred in Iowa or a state other than Nebraska, leaving no
basis for a jury to reach that conclusion. As such, we conclude
that Lee was not prejudiced as to necessitate a reversal on
these grounds.
26
Brief for appellant at 44.
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4. Excessive Sentences
[12] Lee next assigns that that the district court erred by
imposing excessive sentences. When a trial court’s sentence
is within the statutory guidelines, the sentence will be dis-
turbed by an appellate court only when an abuse of discretion
is shown.27
On counts I and II, Lee was found guilty of first degree
sexual assault of a child, which is a Class IB felony punish-
able by a mandatory minimum of 20 years’ imprisonment and
a maximum of life in prison.28 Lee was sentenced to 50 years’
to life imprisonment on each count of this offense.
On count III, Lee was found guilty of attempted first degree
sexual assault of a child, which is a Class II felony punishable
by 1 to 50 years’ imprisonment.29 Lee was sentenced to 20 to
50 years’ imprisonment on this offense.
On count IV, Lee was found guilty of third degree sexual
assault of a child, which is a Class IIIA felony punishable by
up to 3 years’ imprisonment and 18 months’ postrelease super-
vision, a $10,000 fine, or both.30 Lee was sentenced to 2 to 3
years’ imprisonment on this offense.
Finally, on count V, Lee was found guilty of incest with a
victim age 17 or under, which is a Class IIA felony punishable
by 0 to 20 years’ imprisonment.31 Lee was sentenced to 10 to
20 years’ imprisonment on this offense.
Running consecutively, Lee’s sentences equate to an aggre-
gate period of 100 years’ to life imprisonment, plus an addi-
tional 32 to 73 years’ imprisonment.
Lee does not contest that his sentences were within the stat-
utory limitations. He solely argues that the district court abused
27
See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
28
See Neb. Rev. Stat. §§ 28-319.01 and 28-105 (Reissue 2016).
29
See § 28-319.01, Neb. Rev. Stat. § 28-201(4)(a) (Reissue 2016), and
§ 28-105.
30
See Neb. Rev. Stat. §§ 28-320.01 (Reissue 2016) and 28-105.
31
See Neb. Rev. Stat. §§ 28-703 (Reissue 2016) and 28-105.
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its discretion by imposing an unjustly lengthy total sentence as
compared to other Nebraska cases where defendants were con-
victed of similar crimes. Consequently, Lee’s sentences will be
disturbed only upon a finding of abuse of discretion.
[13,14] Abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence.32 When imposing a sentence, a sentenc-
ing judge should 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 crime.33 The appropriateness of a sentence
is necessarily a subjective judgment and includes the sen-
tencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the
defendant’s life.34
There is no evidence in the record demonstrating that the
sentencing court considered inappropriate or unreasonable fac-
tors in forming Lee’s sentences. The district court reviewed
the presentence investigation report, which revealed Lee had
an extensive criminal history. The district court also consid-
ered Lee’s age, mentality, education, experience, social and
cultural background, and law-abiding conduct, as well as the
motivations for these offenses, the nature of the offenses, and
the presence or absence of violence, including sexual violence.
Considering the totality of this information, the court deter-
mined that Lee was a dangerous sexual predator and imposed
his above-described sentences.
We cannot conclude that the district court made its deci-
sion based upon reasons that were untenable or unreasonable,
32
State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).
33
State v. Huff, supra note 27.
34
State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
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nor was the district court’s action clearly against justice or
conscience, reason, and evidence. Therefore, we conclude that
the sentencing court did not abuse its discretion and that Lee’s
sentences are not excessive.
5. Ineffective Assistance of Counsel
Lastly, Lee asserts a number of claims of ineffective assist­
ance of trial counsel. Specifically, he argues that (1) he over-
heard his trial counsel talking with the prosecutor and indicat-
ing she believed Lee was guilty, and that when he confronted
her about it, she told him to “go back to his cell and taste his
own semen and see what it tastes like”35; (2) his trial counsel
did not review discovery with him; (3) his trial counsel told
him that he could not call any other witnesses that he wished
to call at trial; (4) his trial counsel failed to raise a Batson 36
challenge, which he believes was appropriate because there
was “not a single African American” in the venire 37; (5) he
was prejudiced by his trial counsel’s deficient performance by
failing to litigate Lee’s motion to sever charges; and (6) he was
prejudiced by his trial counsel’s deficient performance by fail-
ing to object to improper hearsay and opinion testimony from
Cirian, the forensic interviewer.
[15] Lee has new counsel on direct appeal. When a defend­
ant’s trial counsel is different from his or her counsel on direct
appeal, the defendant must raise on direct appeal any issue of
trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record.38 Once raised, the
appellate court will determine whether the record on appeal
is sufficient to review the merits of the ineffective perform­
ance claims.39
35
Brief for appellant at 50.
36
Batson v. Kentucky, supra note 1.
37
Brief for appellant at 51.
38
State v. Chairez, supra note 7.
39
Id.
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In order to know whether the record is insufficient to
address assertions on direct appeal that trial counsel was inef-
fective, appellate counsel must assign and argue deficiency
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 peti-
tion for postconviction relief to be able to recognize whether
the claim was brought before the appellate court.40 When a
claim of ineffective assistance of trial counsel is raised in a
direct appeal, the appellant is not required to allege prejudice;
however, an appellant must make specific allegations of the
conduct that he or she claims constitutes deficient performance
by trial counsel.41
Lee and the State agree that the record is insufficient to
address four of Lee’s assertions on direct appeal that trial
counsel was ineffective, made under the heading “Defendant’s
preservation of Post Conviction Relief issues.”42 In this regard,
Lee asserts, first, that he overheard trial counsel telling the
prosecutor she believed he was guilty and, when confronted
about the conversation, told Lee to “go back to his cell and
taste his own semen and see what it tastes like.” Second, Lee
contends that trial counsel refused to allow him to review the
entire discovery in the case, including the Project Harmony
reports and the video-recorded forensic interview, which he
asserts impeded his ability to assist in his defense and would
have led Lee to insist that trial counsel call “adverse witnesses,
including . . . Kelly who was purportedly present during an
alleged assault.”43 Third, Lee argues that trial counsel told him
he could not call any other witnesses in his defense, which
prevented him from adducing the testimony of “adverse wit-
nesses,” including Kelly. Fourth, Lee asserts trial counsel was
40
See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
41
See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
42
Brief for appellant at 50.
43
Id. at 51.
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ineffective by failing to raise a Batson challenge to a jury
consisting of “not a single African American” and by failing to
preserve any Batson challenge by not having a record made of
the lack of diversity of the venire.
We find these assertions sufficient to preserve the alleged
claims of deficiency, with one caveat. Appellate counsel
must give on direct appeal the names or descriptions of any
uncalled witnesses forming the basis of a claim of inef-
fective assistance of trial counsel.44 Otherwise, a potential
postconviction court would be unable to identify whether a
claim based on the alleged failure to call a particular witness
was preserved on direct appeal.45 Here, appellate counsel
raised only the failure to call witness Kelly with sufficient
specificity. Any other claim as to “adverse witnesses” has not
been preserved.
As we have held in countless cases where the record on
direct appeal was insufficient for assessing ineffective assist­
ance of counsel claims, the issue that often arises is that the
trial record reviewed on appeal is “devoted to issues of guilt
or innocence” and does not usually address issues of counsel’s
performance.46 The same can be said in this case. The record on
appeal is simply devoid of any evidence of the circumstances
and facts regarding the four contentions of ineffective assist­
ance of counsel that were adequately presented. Therefore, we
decline to reach these claims on direct appeal based on the
insufficiency of the record before us.
However, we find that the record is sufficient to address on
direct appeal Lee’s claims that his trial counsel was deficient
by failing to (1) litigate Lee’s motion to sever charges and
(2) object to improper hearsay and opinion testimony from
Cirian. Where the record is sufficient to address the ineffec-
tive assistance of counsel claim, an appellate court reviews
44
See State v. Abdullah, supra note 40.
45
See id.
46
Id. at 128, 853 N.W.2d at 864.
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the factual findings of the lower court for clear error.47 But
with regard to the questions of counsel’s performance or
prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington,48 an appellate court
reviews such legal determinations independently of the lower
court’s decision.49
[16-18] To prevail on a claim of ineffective assistance of
counsel under Strickland, the defendant must show that his or
her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense.50 To
show deficient performance, a defendant must show that coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law.51 To show prejudice, the
defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceed-
ing would have been different.52
(a) Motion to Sever
[19] Lee contends that the charges involving R.W. should
have been severed from the charges involving M.B., so his
trial counsel should have pursued their motion to sever and
was ineffective in failing to do so. However, based on the
record before us, trial counsel did in fact “litigate” and “pur-
sue” Lee’s motion to sever. Lee’s trial counsel filed a four-page
motion detailing the requested severances. At the beginning of
a pretrial hearing on March 15, 2018, trial counsel stated that
she wished to withdraw the motion, but then she argued the
motion toward the end of these pretrial hearings. Trial counsel
47
State v. Chairez, supra note 7.
48
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
49
State v. Filholm, supra note 41.
50
Id.
51
State v. Chairez, supra note 7.
52
Id.
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maintained that a severance was warranted and laid out the
requested severances. The district court subsequently denied
severance via a written order. Thus, this motion to sever was in
fact argued and ruled upon. Trial counsel cannot be ineffective
for failing to do that which the record affirmatively establishes
was done.
(b) Failure to Object to
Cirian’s Testimony
[20] Regarding counsel’s failure to object to Cirian’s tes-
timony on hearsay grounds, Lee argues that his trial coun-
sel should have objected to Cirian’s testimony about what
actions were required to be taken or what protocols were trig-
gered in response to R.W.’s and M.B.’s disclosures, because
this was inadmissible “derivative hearsay.”53 Lee cites no
authority to support this “derivative hearsay” argument, nor
are we aware of any precedent or authority that indicates
such evidence constitutes inadmissible “derivative hearsay.”
To the contrary, the law generally provides that statements
are not hearsay if they are offered to show the effect on
the listener.54
Cirian’s testimony regarding the requisite protocols when
certain disclosures by the interviewed children are made was
nothing more than her description of the steps she was required
to take during the girls’ interview process. Cirian testified only
as to her actions as a result of the disclosures made to her dur-
ing these interviews. We find that Cirian’s testimony regarding
the actions that were required to be taken and the protocols
that were triggered in response to the girls’ disclosures was not
hearsay. As such, as a matter of law, Lee’s trial counsel was not
deficient for failing to object to Cirian’s testimony as “deriva-
tive hearsay.”
53
See brief for appellant at 39.
54
See, State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015); State v. McCave,
282 Neb. 500, 805 N.W.2d 290 (2011).
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Lee also argues that trial counsel was ineffective for fail-
ing to object to Cirian’s allegedly improper opinion testimony
when Cirian testified that the demeanor of R.W. and M.B.
was consistent with the demeanor of a victim of sexual abuse.
Lee argues that this testimony amounted to improper vouch-
ing for the credibility of the victims and was an improper
opinion.
The record reflects that when the State initially questioned
Cirian regarding the girls’ demeanor and its consistency with
children alleging sexual abuse, Lee’s trial counsel objected
to the testimony on the basis of relevance. Such an objection
necessarily encompassed the propriety of Cirian’s opinion.55
Lee’s trial counsel was not ineffective for failing to object
to Cirian’s conclusion, because the record demonstrates that
such an objection was made. Moreover, we conclude that
Cirian did not opine as to the reliability or the credibility of
the girls’ statements or allegations made during their respec-
tive interviews.
VI. CONCLUSION
For the reasons set forth above, we affirm the decision of the
district court.
A ffirmed.
55
See State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013). See, also,
In re Interest of Kyle O., 14 Neb. Ct. App. 61, 703 N.W.2d 909 (2005).
Cassel, J., concurring.
I write separately only to remind the practicing bar that
assignments of error on direct appeal regarding ineffective
assistance of trial counsel must specifically allege deficient
performance and that an appellate court will not scour the
remainder of the brief in search of such specificity.1 Our deci-
sion making this rule explicit was released on April 19, 2019.
1
See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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In the appeal before us, Lee’s sole assignment of error relat-
ing to ineffective assistance stated only, “Defendant’s preser-
vation of Post Conviction Relief issues.” But for having been
filed on December 21, 2018, it clearly would have failed the
specificity requirement. Although we have declined to apply
the specificity requirement retroactively,2 that time is already
gone for briefs being filed now. Counsel should understand that
briefs filed after April 19, 2019, which fail to comply may have
consequences beyond loss of such claims.3
2
See State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
3
See Neb. Ct. R. of Prof. Cond. § 3‑501.1 (rev. 2017).