State v. Cullen

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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CULLEN
Cite as 292 Neb. 30State of Nebraska, appellee, v.
Sarah A. Cullen, appellant.
___ N.W.2d ___
Filed November 6, 2015. No. S-14-509.
1. Motions for Mistrial: Appeal and Error. Whether to grant a motion
for mistrial is within the trial court’s discretion, and an appellate court
will not disturb its ruling unless the trial court abused its discretion.
2. Rules of Evidence: Other Acts: Appeal and Error. It is within the
discretion of the trial court to determine relevancy and admissibility of
evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Cum. Supp. 2014), and the trial court’s decision will
not be reversed absent an abuse of discretion.
3. 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.
4. Judgments: Words and Phrases. An 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.
5. 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. In reviewing claims of ineffective assistance of
counsel on direct appeal, an appellate court decides only questions of
law: Are the undisputed facts contained within the record sufficient to
conclusively determine whether counsel did or did not provide effec-
tive assistance and whether the defendant was or was not prejudiced by
counsel’s alleged deficient performance?
6. Rules of Evidence: Other Acts. Under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Cum. Supp. 2014), evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to
show that he or she acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity,
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Cite as 292 Neb. 30intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.
7. ____: ____. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum.
Supp. 2014), does not apply to evidence of a defendant’s other
crimes or bad acts if the evidence is inextricably intertwined with the
charged crime.
8. ____: ____. Inextricably intertwined evidence includes evidence that
forms part of the factual setting of the crime, or evidence that 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 if
the other crimes or bad acts are necessary for the prosecution to present
a coherent picture of the charged crime.
9. Criminal Law: Trial: Evidence: Appeal and Error. An error in admit-
ting or excluding evidence in a criminal trial, whether of constitutional
magnitude or otherwise, is prejudicial unless the error was harmless
beyond a reasonable doubt.
10. Verdicts: Juries: Appeal and Error. Harmless error review looks to
the basis on which the jury actually rested its verdict; the inquiry is
not whether in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the actual guilty verdict
rendered was surely unattributable to the error.
11. Trial: Appeal and Error. In order to preserve, as a ground of appeal,
an opponent’s misconduct during closing argument, the aggrieved party
must have objected to improper remarks no later than at the conclusion
of the argument.
12. Trial: Evidence: Appeal and Error. An objection, based on a specific
ground and properly overruled, does not preserve a question for appel-
late review on any other ground.
13. 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.
14. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the
duty to conduct criminal trials in such a manner that the accused may
have a fair and impartial trial, and prosecutors are not to inflame the
prejudices or excite the passions of the jury against the accused.
15. ____: ____: ____. A prosecutor’s conduct that does not mislead and
unduly influence the jury does not constitute misconduct.
16. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
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STATE v. CULLEN
Cite as 292 Neb. 30well as (7) the nature of the offense, and (8) the amount of violence
involved in the commission of the crime.
17. ____. 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.
18. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
In order to show ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
a defendant must show, first, that counsel was deficient and, second,
that the deficient performance actually caused prejudice to the defend­
ant’s case.
19. Effectiveness of Counsel: Proof: Presumptions: Appeal and Error.
The two prongs of the ineffective assistance of counsel test under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), may be addressed in either order, and the entire ineffective-
ness analysis should be viewed with a strong presumption that counsel’s
actions were reasonable.
20. Effectiveness of Counsel: Proof. Prejudice caused by counsel’s defi-
ciency is shown when there is a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have
been different.
21. Proof: Words and Phrases. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
22. Effectiveness of Counsel: Records: Appeal and Error. 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.
23. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
ineffective assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.
24. Motions to Strike: Jury Instructions. When an objection to or motion
to strike improper evidence is sustained and the jury is instructed to
disregard it, such instruction is deemed sufficient to prevent prejudice.
Appeal from the District Court for Douglas County: W.
M ark Ashford, Judge. Affirmed.
Barry S. Grossman and Michael J. Fitzpatrick for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
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STATE v. CULLEN
Cite as 292 Neb. 30Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
Cassel, J.
I. INTRODUCTION
In this direct appeal, Sarah A. Cullen challenges her convic-
tion, pursuant to jury verdict, and her sentence for intentional
child abuse resulting in death.1 An infant died after being in
Cullen’s care. She primarily argues that evidence of the child’s
prior injuries while in her care should have been excluded
as prior bad acts under rule 404 of the Nebraska Evidence
Rules.2 We conclude that the prior injuries were inextricably
intertwined with the fatal ones. We also reject Cullen’s asser-
tions of improper closing argument, prosecutorial misconduct,
excessive sentence, and ineffective assistance of trial counsel.
Accordingly, we affirm.
II. BACKGROUND
1. Cash’s Injuries and Death
Cash Christopher Bell, born in October 2012, was the son
of Christopher (Chris) Bell and Ashley Bell. Prior to the events
summarized below, Cash had no medical issues.
In January 2013, the Bells hired Cullen to work temporarily
as a nanny for Cash in their home, pending the opening of a
new daycare in June 2013. Cullen’s first day alone with Cash
was on January 7, when Ashley returned to work from mater-
nity leave. Cash was about 3 months old.
On the morning of February 28, 2013, Chris woke up at
approximately 6 a.m. He changed Cash’s diaper, fed him a
bottle, and then brought him downstairs to Ashley. Ashley put
Cash in a bassinet while she finished getting ready for work.
The Bells testified that it was a typical morning. Cash was
active, making eye contact, smiling, cooing, and laughing.
1
See Neb. Rev. Stat. § 28-707 (Cum. Supp. 2012).
2
See Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2014).
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Cite as 292 Neb. 30Chris left for work between 6:45 and 7 a.m. Cullen arrived
for work at the Bells’ home at 7:15 a.m. Ashley left for work
around 7:40 a.m.
Shortly after 9:19 a.m., Chris returned home to get his
checkbook. As Chris entered the house, he yelled out to
Cullen that he had forgotten his checkbook. He then heard
Cash breathing. He turned and found Cash lying face down
in the Pack ’N Play nearby. Chris rolled him over. Cash did
not open his eyes, and he took “a little breath.” Cash’s blanket
was around his face and chest area, and Chris moved it down
to his waist. Chris believed that Cash was sleeping. At about
the same time he heard Cash breathing, Chris heard Cullen in
the nearby bathroom. After he rolled Cash over, Chris grabbed
his checkbook. As he was leaving, he heard Cullen ask him if
he woke Cash up. Chris estimated that he was in the house not
more than a minute. As Chris was getting into his car, Cullen
came to the door with Cash in her arms and asked Chris what
he said when he first walked in the house. Chris could see only
the back of Cash’s head.
At approximately 10:15 a.m., Cullen called her boyfriend,
Andrew Ullsperger, and told him that Cash was not breathing
and that his feet were blue. Ullsperger immediately proceeded
to the Bell residence to take Cash and Cullen to a local hospi-
tal. When Ullsperger arrived at the Bell residence, Cash was
not responsive, but he was breathing. Cullen told Ullsperger
nothing about the events of that morning on the way to the
hospital. When they arrived at the hospital’s emergency room,
Cullen stated that she found Cash “sleeping on his belly and
he doesn’t normally sleep like that.”
Previously, Ashley had requested that Cullen log Cash’s
diaper changes, feedings, naps, and anything else of note, and
the last entry in the log was at 8 a.m. on February 28, 2013,
when Cullen noted that Cash began to nap. At 10:18 a.m.,
Cullen called Ashley and frantically told her that she was
taking Cash to the hospital because Cash had just woken up
from a 1- to 11⁄2-hour nap and was not breathing right. Ashley
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STATE v. CULLEN
Cite as 292 Neb. 30and Chris later arrived at the emergency room where they
waited with Cullen and Ullsperger. Ashley testified that she
questioned Cullen during that time about whether anything
had happened that morning after Ashley left, but Cullen main-
tained that Cash woke up from his nap in that condition. A
nurse eventually summoned Ashley and Chris to be with Cash
until “Life Flight” transported him to a pediatric hospital due
to the extent of his injuries.
Deputy Brenda Wheeler and Sgt. John Pankonin of the
Douglas County Sheriff’s Department interviewed Cullen at
the sheriff’s office on February 28 and March 1, 2013.
During her February 28, 2013, interview, Cullen told pri-
marily four different versions of what occurred to Cash that
morning. Initially, she stated that Cash started the day acting
normally, but that when he woke up from his nap, his breath-
ing was not normal. Cullen denied to Wheeler that Cash had
an accident or fell that morning. Wheeler then informed Cullen
that Cash’s skull was fractured and that his head had to have
hit something or something had to have hit his head. Cullen
eventually told Wheeler that when she was walking out of the
back door with Cash, she may have accidentally hit his head
somewhere on the door. When she came back in, Cash was not
“breathing right.”
After consulting Dr. Suzanne Haney, a pediatrician, outside
of Cullen’s presence, Wheeler informed Cullen that Cash’s
injuries could not have been caused by hitting his head on the
door. Cullen continued to deny that anything else happened
that morning, but then she told Wheeler that Cash had fallen
out of his swing at about 8:15 a.m. According to Cullen, Cash
whimpered but then fell asleep at about 8:45 a.m.
While Wheeler was again absent consulting Haney,
Ullsperger and Cullen communicated via text messages.
Ullsperger texted Cullen, “They said [C]ash is going to be ok.”
Cullen replied, “I know. But it’s still my fault. I didn’t buckle
him in the swing, he flopped out of it . . . idk.” (“Idk” is a
texting term that means “I don’t know.”) Ullsperger responded,
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Cite as 292 Neb. 30“Oh really? What all did they say then?” Cullen wrote, “Idk,
that’s the very only thing that happened out of the ordinary but
he didn’t even really cry so [I] didn[’]t think it did anything!
She’s talking to the doctor now.”
After talking to Haney, Wheeler informed Cullen that
Cash’s injuries could not have been caused by a short fall
from the swing. Wheeler and Pankonin informed Cullen that
Cash’s injuries were consistent with shaking and that he was
set down or thrown down hard. Cullen began to cry and
admitted that she had lied. She stated that Cash had fallen out
of the swing the day before. According to Cullen, at about
8:15 a.m. on February 28, 2013, she had slipped on the stairs
while carrying Cash and he had fallen onto the tile floor
below without hitting any of the steps. Cullen stated that Cash
landed on his back with his hands clenched but did not cry.
She put a bag of frozen vegetables on the back of his neck
and then put him in his Pack ’N Play after he fell asleep on
her chest.
According to Cullen, she called Ullsperger instead of the
911 emergency dispatch service because Cash “wasn’t that bad
right away” and because it was her fault. Cullen denied shak-
ing Cash. She wrote a statement about Cash’s falling down the
stairs and generally maintained this version of events during
the interview with Wheeler on March 1, 2013.
Haney is a child abuse pediatrician who specializes in the
diagnosis and care of suspected abused and neglected children.
She consulted on Cash’s case. When she examined Cash on
February 28, 2013, she noticed that he was “not acting well.”
He was irritable and not focusing his eyes, and he had “an
obnoxious shrill kind of a scream.” At that time, Cash was
breathing on his own. He had injuries that concerned Haney on
a 4-month-old, including a bruise on the left side of his fore-
head, two tiny circular abrasions under his chin, and a bruise
on his tongue. Wheeler confronted Cullen during the March 1
interview about the abrasions under Cash’s chin. Cullen told
Wheeler that she first saw them on Monday, February 25, and
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Cite as 292 Neb. 30that Ashley told her the abrasions occurred over the weekend
when Ashley put Cash’s bib on him. The abrasions matched
metal clasps on the inside collar of the “Onesie” that Cash
wore on February 28.
Between March 1 and 5, 2013, Cash’s neurological condition
rapidly deteriorated as evidenced by his lack of responsiveness
and an onset of frequent seizures that could be controlled
only through high doses of medication. Doctors determined
that Cash would not have any significant neurologic recovery.
Ashley testified that Cash’s doctors gave them the long-term
prognosis that Cash would never be able to see, hear, walk, or
be without a feeding tube and a ventilator and that he would
likely never understand his parents. Based on this information,
the Bells decided to take Cash off of life support on March 5,
and that day, he died.
Several medical experts testified about the extent of Cash’s
injuries and their possible causes. That evidence demonstrates
that Cash sustained a large hematoma on the right back of his
head, a smaller bruise on the back of his head, a skull fracture
on the back of his head, a second skull fracture on the right
side of his head that extended to the base of his skull, subdural
and subarachnoid hemorrhages in and around all surfaces of
his brain, actual injury to his brain including torn blood vessels
and long filaments as well as bruising to both sides, and mul-
tiple retinal hemorrhages that extended to the back of his eyes.
Doctors testified that Cash sustained a global or diffuse brain
injury, meaning that it affected his entire brain. Ninety percent
of his brain was permanently damaged and abnormal due to a
lack of oxygen.
The medical experts agreed that Cash’s injuries were
con­sistent with nonaccidental trauma caused by shaking or
impacts to the head or both. There was testimony comparing
the significant force involved in Cash’s injuries to a one- to
two-story fall, a high-speed motor vehicle accident, and a
television falling on a child’s head and crushing it. There
was testimony that separation between the two skull fractures
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Cite as 292 Neb. 30indicated that they were caused by two separate forces. While
none of the experts could pinpoint an exact date and time
of injury, they estimated that Cash’s brain and eye injuries
occurred within 0 to 2 days of February 28, 2013, and that
his skull fractures occurred within 0 to 14 days of that date;
though in light of Cash’s brain injury, it was highly unlikely
that the fractures occurred 14 days before February 28.
Based on the history given by the Bells, Cullen’s statements,
and the medical evidence, two medical experts opined that
Cash’s brain injury occurred sometime after Ashley left for
work on February 28, 2013. They testified that children with
Cash’s type of brain injury are immediately unwell and do
not respond appropriately and that symptoms would manifest
fairly quickly and may be intermittent, but would be notice-
able and cause concern. Several medical experts testified that
Cullen’s versions of events could not have accounted for all of
Cash’s injuries.
2. Charge
The State charged Cullen with intentional child abuse occur-
ring on or about January 1 through February 28, 2013, that
resulted in Cash’s death, a Class IB felony in violation of
§ 28-707(1) and (8). The district court conducted a trial, and
we have already summarized part of the evidence relevant to
this appeal. Additional evidence relevant to specific issues on
appeal is summarized below.
3. Rule 404 Evidence
Prior to trial, the State filed its notice of intent to offer evi-
dence of prior bad acts pursuant to rule 404. A rule 404 hear-
ing was held where the State presented evidence that Cullen
had injured children at two daycares where she had worked
prior to working for the Bells. At this hearing, the State did not
present evidence of prior injuries that Cash suffered while in
Cullen’s care.
The State explained that its approach was intentional. The
prosecutor informed the court that the State did not consider
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Cite as 292 Neb. 30evidence of prior injuries that Cash suffered while in Cullen’s
care to be rule 404 evidence. Rather, the State believed this
evidence was inextricably intertwined with the charged offense.
For that reason, the rule 404 hearing was confined to the prior
daycare evidence.
The district court ruled the prior daycare evidence inadmis-
sible. While the court found that the evidence would be proba-
tive regarding absence of mistake, it determined that the risk of
unfair prejudice substantially outweighed its probative value.
It attributed the unfair prejudice to the dissimilarities in the
severity and cause of the injuries between the children at the
daycares and Cash.
4. Cash’s Prior Injuries
During trial, Cullen made an oral motion in limine seeking
to prohibit the State from offering text messages and photo-
graphs of injuries that Cash sustained prior to February 28,
2013. Defense counsel argued that the injuries constituted prior
bad acts evidence and should have been excluded under the
district court’s order on the rule 404 evidence.
The State responded that the text messages showed that
Cullen previously notified Ashley of any accidental injuries
Cash sustained but did not disclose any accident to her on
February 28, 2013. Thus, the State argued, the evidence was
inextricably intertwined with the charged offense, because
Cullen’s inconsistent conduct was highly relevant to whether
the injuries that resulted in Cash’s death were intentional
or accidental.
The district court ruled that the State could not offer evi-
dence of specific injuries to Cash unrelated to his cause of
death, but that it could offer evidence in general about the
arrangement between Ashley and Cullen to communicate about
Cash and any accidents as well as the frequency of those com-
munications. However, the district court further ruled that it
would revisit the issue if Cullen’s statements about the prior
injuries were received into evidence.
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Cite as 292 Neb. 30At trial, Ashley testified that she and Cullen communi-
cated with each other by text or telephone call almost every
day while Ashley was at work. Ashley testified that between
January 7 and February 27, 2013, Cash sustained minor inju-
ries. Despite Ashley’s instructions to contact her or Chris
about any accidents, Cullen notified Ashley about only three
of six injuries.
After Cullen’s statements to law enforcement were admit-
ted at trial, the State recalled Ashley to testify about the minor
injuries that Cash sustained while in Cullen’s care. Before
Ashley could testify about the minor injuries, defense counsel
requested to approach the bench where an off-the-record dis-
cussion was held. The district court overruled Cullen’s objec-
tion and allowed her a continuing objection.
Ashley testified that Cash’s first injury while in Cullen’s
care occurred on January 9, 2013. Cullen texted Ashley on
that day that the Bells’ dog, named “Mugsy,” trampled Cash
and her on the floor after a noise outside “freaked Mugsy out.”
When Ashley returned home from work, Cash had a bruise
under his left eye and a scratch on the left side of his neck.
Ashley explained that she and Chris trained Mugsy to respect
Cash’s space and that she never observed Mugsy run over or
trample Cash. Although Ashley had never observed Mugsy
“freak out” over a noise outside, she testified that she believed
Cullen’s explanation.
One week later, on January 16, 2013, Cullen texted Ashley
that Cash had a fever. On January 29, Cullen texted Ashley,
“Oh Ashley I have no idea what just happened but theres [sic]
a big mark under Cash eye :( I went to answer the door and he
started crying!” Ashley testified that according to Cullen, Cash
was on his toy mat on the floor when the doorbell rang, which
caused Mugsy to jump off the couch. Cullen told Ashley that
she did not know what had happened, but that Cash sustained
a bruise and scratch under his left eye. Ashley testified that
she believed it was plausible that Mugsy jumped off the couch
when the doorbell rang.
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Cite as 292 Neb. 30Ashley testified that she and Chris were out of town
between February 7 and 11, 2013. Cullen cared for Cash dur-
ing the day, while Ashley’s mother cared for him at night.
When the Bells returned on February 11, Cash had a bump
and a bruise on the right side of his head above his eyebrow.
Ashley did not address the injury with Cullen because she
understood that her mother had. Rose Bergerson, Ashley’s
mother, testified over Cullen’s continuing objection that she
came to the Bells’ home from work on February 7 to find
Cash with the bruise and bump. Defense counsel stated the
grounds for the objection to be relevance and rule 404: “The
same objection that we had to Ashley Bell’s testimony.”
Bergerson testified that when she confronted Cullen about
the injury, Cullen told her that she had Cash on her hip when
she was taking Mugsy outside. According to Cullen, the wind
caught the door and hit Cash in the head. Bergerson docu-
mented Cash’s injury by taking photographs of it with her cell
phone, and those photographs were received into evidence
over Cullen’s objections.
In mid-February 2013, Chris and Ashley observed a broken
blood vessel on the inside of Cash’s eye. Cullen told Ashley
that she had never seen it before. On February 15, Cullen
texted Ashley, “Cash must have scratched himself? We ran and
ate a late lunch, when we got back there was a small mark on
him but it was not there when [I] put him in . . . he wad [sic]
rubbing his eyes awfully hard though . . . have a good week-
end!” Ashley could not recall if Cullen was referring in the text
to a new scratch or the broken blood vessel.
On the evening of Monday, February 25, 2013, Chris and
Ashley noticed that Cash had two round abrasions under his
chin and a bruise on his temple. Ashley confronted Cullen
about the abrasions, and Cullen told her that they did not hap-
pen during her care and that she had not seen them. Ashley
testified that she told Cullen on February 28 that she hoped
she did not cause the abrasions over the weekend with his
wet bib. Ashley testified that she dismissed the idea after she
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Cite as 292 Neb. 30said it, because the bib would not have caused the two abra-
sions under Cash’s chin or the bruise on his temple. Therefore,
according to Ashley, Cullen was inaccurate when she told
Wheeler that Ashley admitted causing the two abrasions.
Ashley testified that Cullen never notified her that Cash fell
out of the swing on February 27, 2013, as Cullen had claimed
during her interview with police.
The record contains no motion for mistrial based on the
admission of evidence of Cash’s prior injuries.
5. Motion for Mistrial
During Chris’ testimony, Cullen’s counsel objected, based on
hearsay grounds, before Chris could testify about what a nurse
had told him and Ashley. The district court permitted Chris to
continue, because “[i]t may be a diagnostic statement.” Chris
then testified, “[The emergency room nurse] grabbed my wife
Ashley . . . and said, She did this to him, meaning [Cullen].”
After this testimony, Cullen’s counsel immediately said, “Okay,
Judge.” The district court struck the testimony, and counsel
approached the bench for an off-the-record discussion. The
jury was excused briefly, and Cullen’s counsel made a motion
for mistrial. The district court denied the motion. Before pro-
ceeding with the trial, the district court admonished the jury
“totally to disregard that comment entirely.”
The only other reference to a mistrial occurred during a dis-
cussion about striking jurors, but it did not result in a motion.
At the close of the State’s case in chief, Cullen renewed
“[t]wo motions” for mistrial, immediately after which the
district court noted for the record that it had allowed Cullen
ongoing objections during testimony about Cash’s injuries that
occurred prior to February 28, 2013. It then denied Cullen’s
“motions” for mistrial.
6. Closing Statements
During closing statements, the prosecutor argued:
Let’s look at [Cullen’s] demeanor in this trial, because
that’s something you can take into consideration.
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Cite as 292 Neb. 30I don’t know about you, ladies and gentlemen, but
I was watching her every minute that I could. I didn’t
see one ounce of emotion out of her, not when we were
looking at photographs of Cash, this baby she claims
to have loved and cared for, not one ounce of emotion.
Not in that interview, not during this trial, not when the
autopsy pictures are being presented, not when we’re
looking at his brain or his subdural brain bleeds. Not
once. Is that reasonable? She’s completely detached.
She’s completely unaffected. No emotion whatsoever.
It’s unbelievable.
Let’s compare that demeanor to Andrew Ullsperger’s
demeanor, because, again, he represents a reasonable
person. Andrew Ullsperger who had had two interactions
with baby Cash before the 28th, very limited contact
with this baby versus Sarah Cullen, who spent from 7:15
to 5:00 in the evening every day with Cash for seven
weeks. Andrew Ullsperger is visibly distraught during
his interviews, Sergeant Pankonin tells you and Andrew
told you himself. I asked him, Why were you so upset?
What was your number one concern? And without hesita-
tion, he said, Cash. Because why wouldn’t it be? He said,
This is a baby we’re talking about. Completely different
physical and emotional response than this woman (point-
ing), the one who was paid and entrusted with the care
of a life.
Cullen’s attorney did not object.
Cullen’s attorney objected only during closing statements
when the prosecutor spoke about the Bells’ loss:
And [Cullen] did it. She did it with her own hands,
nobody else’s. In those moments when this woman was
taking out her rage on a child, a four-month-old helpless
baby in her care, shaking him, slamming him, she broke
his body, she shattered that child’s body, she shattered
that child’s life and she shattered the lives of everybody
who loved Cash Bell.
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Cite as 292 Neb. 30You know what? At the close of this we all get to go
home. We get to go home to our kids and our grandkids.
We get to get our children dressed for school and pick out
Halloween costumes when it rolls around and open pres-
ents and celebrate birthdays.
Cullen’s counsel objected stating, “[T]his is improper closing
argument and it’s asking for sympathy and that’s inappropri-
ate.” The district court overruled the objection.
7. Conviction and Sentence
The jury convicted Cullen of intentional child abuse result-
ing in death. The district court sentenced Cullen to a term of
imprisonment of 70 years to life.
III. ASSIGNMENTS OF ERROR
Cullen assigns that the district court erred in (1) denying her
motion for mistrial on the basis of allowing admission of prior
bad acts evidence pursuant to rule 404 and overruling Cullen’s
objection to the prosecutor’s closing argument, (2) failing to
sustain Cullen’s objection and to order a mistrial due to pros-
ecutorial misconduct during closing argument, and (3) abus-
ing its discretion by imposing an excessive sentence. Cullen
additionally assigns that she received ineffective assistance
of counsel.
IV. STANDARD OF REVIEW
[1-4] Whether to grant a motion for mistrial is within the
trial court’s discretion, and an appellate court will not disturb
its ruling unless the trial court abused its discretion.3 It is
within the discretion of the trial court to determine relevancy
and admissibility of evidence of other wrongs or acts under
rule 404, and the trial court’s decision will not be reversed
absent an abuse of discretion.4 We will not disturb a sentence
3
State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).
4
State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
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Cite as 292 Neb. 30imposed within the statutory limits absent an abuse of discre-
tion by the trial court.5 An abuse of discretion 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 con-
science, reason, and evidence.6
[5] Whether a claim of ineffective assistance of trial coun-
sel may be determined on direct appeal is a question of law.7
In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only questions of
law: Are the undisputed facts contained within the record
sufficient to conclusively determine whether counsel did or
did not provide effective assistance and whether the defend­
ant was or was not prejudiced by counsel’s alleged defi-
cient performance?8
V. ANALYSIS
1. Evidence of Cash’s Prior Injuries
At trial, the State presented evidence of injuries Cash
sustained while in Cullen’s care during the weeks prior to
the fatal injuries he sustained on February 28, 2013. Cullen
assigns that the district court erred in denying her motion for
mistrial in response to this evidence, which was based on the
improper admission of prior bad acts evidence pursuant to
rule 404.
We begin by clarifying the evidence at issue in this assigned
error. First, Cullen argues in her brief that a pretrial order
concerning rule 404 evidence addressed Cullen’s statements
to law enforcement. However, the rule 404 hearing addressed
only Cullen’s abuse of children at prior daycares, not her state-
ments to law enforcement concerning Cash’s prior injuries
while in her care. Although one of Cullen’s pretrial motions
5
State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
6
State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
7
State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
8
State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014).
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Cite as 292 Neb. 30did address whether her statements to law enforcement were
made freely, voluntarily, and intelligently, no error is assigned
to the court’s ruling determining that the statements were
voluntary. Cullen opposed the admission of her statements to
law enforcement before and during trial, but her opposition
addressed the voluntariness of her statements and not their
admissibility under rule 404. Thus, we will not consider her
statements to law enforcement in analyzing her assignment of
error based on rule 404.9
Second, Cullen claims that she made a motion for mistrial in
response to evidence of Cash’s prior injuries. While a motion
for mistrial may have occurred off the record, the record before
this court does not contain a motion for mistrial premised upon
evidence of Cash’s prior injuries. However, Cullen’s coun-
sel did make a motion in limine to prevent the admission of
the text messages concerning Cash’s prior injuries pursuant
to rule 404, as well as timely and specific continuing objec-
tions during testimony about those injuries. On this basis, we
now evaluate the admissibility of testimony by Ashley and
Bergerson and text messages and photographs pertaining to
Cash’s prior injuries.10
Before considering Cullen’s argument about rule 404, we
observe that all of the questioned injuries occurred during the
period of time charged in the information as a single offense.
As we have already stated, the information charged Cullen
with intentional child abuse occurring on or about January
1 through February 28, 2013. Thus, Cullen was clearly on
notice that all of these events were within the scope of the
charged crime.
Cullen argues that the risk of prejudice produced by evidence
of Cash’s prior injuries outweighed the evidence’s probative
9
See State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015) (objection,
based on specific ground and properly overruled, does not preserve
question for appellate review on any other ground).
10
See State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
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Cite as 292 Neb. 30value under rule 404. The State counters that because the
evidence of Cash’s prior injuries was intrinsic or inextricably
intertwined with the injuries that resulted in his death, rule 404
did not apply. We agree with the State.
[6] Rule 404 provides, in part:
(2) Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he or she acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowl-
edge, identity, or absence of mistake or accident.
(3) When such evidence is admissible pursuant to
this section, in criminal cases evidence of other crimes,
wrongs, or acts of the accused may be offered in evidence
by the prosecution if the prosecution proves to the court
by clear and convincing evidence that the accused com-
mitted the crime, wrong, or act. Such proof shall first be
made outside the presence of any jury.
[7,8] Rule 404(2), however, does not apply to evidence
of a defendant’s other crimes or bad acts if the evidence is
inextricably intertwined with the charged crime. Our juris-
prudence initially adopted a broad concept of this class of
evidence.11 Although in other cases we have partially backed
away from the inextricably intertwined exception and instead
applied a broader notion of rule 404, the exception is still
viable.12 Recently, in State v. Ash,13 we articulated our nar-
rowed concept of the exception, stating that inextricably inter-
twined evidence
“includes evidence that forms part of the factual setting
of the crime, or evidence that is so blended or connected
to the charged crime that proof of the charged crime
11
See State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004).
12
See, e.g., State v. Freemont, supra note 10; State v. Ash, 286 Neb. 681, 838
N.W.2d 273 (2013).
13
State v. Ash, supra note 12, 286 Neb. at 694, 838 N.W.2d at 283.
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Cite as 292 Neb. 30will necessarily require proof of the other crimes or bad
acts, or if the other crimes or bad acts are necessary
for the prosecution to present a coherent picture of the
charged crime.”
We summarized four types of circumstances under which we
had previously upheld the admission of such intrinsic evidence:
(1) The defendant’s other bad acts showed his pattern
of sexually abusing a child or exposing the child to sex­
ually explicit material; (2) the defendant destroyed evi-
dence of the crime soon afterward; (3) the defendant’s
arrest for a different theft resulted in the discovery of
evidence of the charged theft, and the evidence estab-
lished that the items were stolen; and (4) the defendant
was using a controlled substance at the time that the
crime was committed.14
The first circumstance refers to our holdings in State v. Baker15
and State v. McPherson.16
In Baker, we held that the inextricably intertwined excep-
tion to rule 402(2) applied where the defendant’s other bad
acts showed his pattern of sexually abusing a child. There, the
State’s evidence included testimony that the defendant threat-
ened the victim 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 victim administer
a massage. The defendant claimed this evidence was inadmis-
sible under rule 404(2). On appeal, we considered whether the
evidence was intrinsic to the charged crimes of first degree
sexual assault and third degree sexual assault of a child and
concluded the State was entitled to present this evidence as
part of a coherent factual setting of the crime. We observed
14
Id. at 695, 838 N.W.2d at 283.
15
State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).
16
State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003).
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Cite as 292 Neb. 30that the evidence was not offered to prove the defendant’s
propensity or character to act a certain way.
In reaching our conclusion in Baker, we relied on McPherson,
where the defendant was convicted on two counts of child
abuse and two counts of first degree sexual assault on a child.
The victims were his two minor daughters. The girls testified
about sexual activity that occurred in their home. On appeal,
the defendant argued that evidence about sexual devices and
sexually explicit videos in the home was inadmissible under
rule 404(2). We disagreed, concluding that the evidence was
“so closely intertwined with both crimes charged that it cannot
be considered extrinsic.”17
Similarly, in the recent case of State v. Smith,18 the defend­
ant was convicted of one count of murder in the first degree,
four counts of assault in the second degree, and five counts
of use of a deadly weapon to commit a felony. On appeal, we
concluded that the trial court did not err in admitting evidence
that the defendant threatened the shooting victims each time
he saw them after they had entered plea agreements with the
federal government. We determined that this evidence was
inextricably intertwined with the shooting and not subject to
rule 404. We likened the scenario to the one in Baker, inter
alia, and reasoned that such evidence was part of the factual
setting of the crimes and was necessary to present a coherent
picture. Further, we explained that the evidence of the prior
encounters did not show propensity for the shootings, but,
rather, established that the defendant had made threats and
acted on them.
Like the disputed evidence in Baker, McPherson, and Smith,
the evidence of Cash’s prior injuries was necessary to estab-
lish the factual setting of the fatal injuries Cullen inflicted
on Cash on February 28, 2013. Furthermore, there was a pat-
tern or history in this case that is similar to the scenarios in
17
Id. at 744, 668 N.W.2d at 513.
18
State v. Smith, 286 Neb. 856, 839 N.W.2d 233 (2013).
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Cite as 292 Neb. 30Baker and McPherson. Although the abuse here was physical
rather than sexual, we see no reason not to apply the same
rationale to cases of intentional physical abuse of children
as we have in sexual abuse cases. Evidence of Cash’s prior
injuries presented a picture of Cullen’s relationship with Cash
and his parents on the day of Cash’s fatal injuries and placed
those fatal injuries in the context of an escalating pattern of
abuse, rather than presenting them as wholly isolated incidents
which, considering the severity of Cash’s injuries, would have
told an incomplete story of the crime charged. Further, the evi-
dence of Cash’s prior injuries shed light on whether Cullen’s
actions were intentional or negligent.
We recognize that in State v. Freemont,19 we chose not to
allow the intrinsic or inextricably intertwined exception where
the prior bad acts occurred several days to a week before the
charged offense. In that case, the defendant was convicted of
second degree murder, use of a deadly weapon to commit a
felony, and possession of a deadly weapon by a prohibited
person. On appeal, this court held that the State’s evidence that
several days before the murder at issue, the defendant, who
was a felon, had been in the possession of a firearm was inad-
missible under rule 404(2). The majority concluded that the
intrinsic or inextricably intertwined exception to rule 404(2)
did not apply, holding that “[t]he prior misconduct did not
provide any insight into [the defendant’s] reason for allegedly
killing” the victim and “was not part of the same transaction
and occurred several days or a week before” the murder.20 This
court determined that holding otherwise would “open the door
to abuse” of the exception and noted that several federal courts
have limited or rejected the exception.21
The instant case is distinguishable from Freemont. In
that case, the character of the offense that the State sought
19
State v. Freemont, supra note 10.
20
Id. at 192, 817 N.W.2d at 291.
21
Id.
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Cite as 292 Neb. 30to put in evidence—possession of a firearm—was entirely
different from the most serious charged offense—murder.
However, in this case, both the evidence that the State sought
to introduce and the crime charged involved the same type of
offense, child abuse, and it involved the same victim, Cash.
As such, as we have already observed, evidence of non­fatal
injuries perpetrated on Cash by Cullen prior to the fatal
injuries he sustained on February 28, 2013, painted a coher-
ent picture of an increasing pattern of abuse and tended to
show that Cullen’s fatal actions were intentional rather than
merely negligent.
Further, the State argues that the instant case is also dis-
tinguishable from two child abuse cases in which we held
that prior injuries, as extrinsic evidence, were subject to rule
404(2). In State v. Kuehn,22 we held that evidence of two prior
incidents in which a 10-month-old child was injured while
in the defendant’s care was properly admitted under rule
404(2) as proof of absence of mistake or accident as to the
charged offense of intentional child abuse. In State v. Chavez,23
we concluded that evidence of remote injuries indicative of
battered child syndrome as seen in a nearly 4-month-old
child’s autopsy was properly admitted under rule 404(2) as
proof of intent or absence of mistake or accident as to the
charged offense of intentional child abuse resulting in death.
We assumed without deciding in Chavez that evidence of a
prior bruise on the child’s forehead while in the defendant’s
care was erroneously admitted under rule 404(2) as proof of
intent or absence of mistake or accident, but concluded that its
admission was harmless.
We agree that the case before us differs from Kuehn and
Chavez. Kuehn was limited to two prior injuries occurring over
a month prior to the charged offense. Chavez addressed remote
injuries unconnected to the defendant and only one injury
22
State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
23
State v. Chavez, 281 Neb. 99, 793 N.W.2d 347 (2011).
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Cite as 292 Neb. 30while in the defendant’s care occurring a month before the
charged offense. The case before us, however, presents injuries
occurring almost weekly over approximately 7 weeks while
Cullen cared for Cash. Moreover, they were part of an escalat-
ing pattern of abuse that ended in Cash’s death.
We conclude that Cash’s injuries incurred prior to February
28, 2013, were inextricably intertwined with the charged crime
and that, therefore, rule 404(2) does not apply. The incidents
were not used for impermissible propensity purposes, but,
rather, they formed the factual setting, and they were necessary
to present a coherent picture of the crime. Furthermore, the fre-
quency and the increasing severity of Cash’s injuries tended to
prove that his fatal injuries resulted from Cullen’s intentional
actions, rather than negligence. The district court did not err in
admitting this evidence.
[9,10] Even if the district court had erred in admitting this
evidence of Cash’s prior injuries, the error would have been
harmless. An error in admitting or excluding evidence in a
criminal trial, whether of constitutional magnitude or other-
wise, is prejudicial unless the error was harmless beyond a
reasonable doubt.24 Harmless error review looks to the basis
on which the jury actually rested its verdict; the inquiry is
not whether in a trial that occurred without the error, a guilty
verdict would surely have been rendered, but whether the
actual guilty verdict rendered was surely unattributable to
the error.25
In Cullen’s interviews with police, she admitted that Cash
had previously sustained injuries while in her care. These
injuries, by her own admission, became increasingly seri-
ous. Cullen attempted to attribute them to accidental causes.
But her statements provided powerful evidence that after she
began caring for Cash, a pattern emerged of increasingly seri-
ous injuries. Cullen’s own statements illuminated the pattern.
24
State v. Ballew, 291 Neb. 577, 867 N.W.2d 571 (2015).
25
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Cite as 292 Neb. 30Testimony by Ashley and Bergerson merely reinforced it.
Thus, a jury’s conclusion that the pattern of increasingly
serious injuries demonstrated intentional actions on Cullen’s
part was surely unattributable to testimony by Ashley and
Bergerson. Therefore, even if admission of that evidence had
been in error, it would have been harmless error.
2. Prosecutorial Misconduct
Cullen asserts that the district court erred in failing to
sustain her counsel’s objection and to order a mistrial due to
prosecutorial misconduct during closing statements. Cullen
argues that the prosecutor’s statements pointing out her lack of
emotion during the trial unduly influenced the jury.
[11,12] Cullen failed to preserve this issue. In order to pre-
serve, as a ground of appeal, an opponent’s misconduct dur-
ing closing argument, the aggrieved party must have objected
to improper remarks no later than at the conclusion of the
argument.26 Cullen’s counsel did not object to the prosecutor’s
statements about her lack of emotion and made no motion
for mistrial during closing arguments. Cullen claims that her
counsel objected “globally” to the prosecutor’s closing state-
ments, by objecting to closing statements about the Bells’
loss.27 However, that objection, stating that the prosecutor’s
remarks were “asking for sympathy,” was specific to com-
ments about the Bells’ loss. An objection, based on a specific
ground and properly overruled, does not preserve a question
for appellate review on any other ground.28 As such, Cullen
did not preserve for appeal issues to which she did not object
at trial.29
26
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
27
Brief for appellant at 16.
28
State v. Newman, supra note 9.
29
State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992) (any objection to
prosecutor’s arguments made after jury has been instructed and has retired
is untimely and will not be reviewed on appeal).
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Cite as 292 Neb. 30[13] Because Cullen did not timely object to the com-
ments concerning her lack of emotion, we review this issue
only for plain 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 sub-
stantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.30
But, as we have noted, “‘the plain-error exception to the
­contemporaneous-objection rule is to be “used sparingly, solely
in those circumstances in which a miscarriage of justice would
otherwise result.”’”31
[14,15] Prosecutors are charged with the duty to conduct
criminal trials in such a manner that the accused may have
a fair and impartial trial, and prosecutors are not to inflame
the prejudices or excite the passions of the jury against the
accused.32 A prosecutor’s conduct that does not mislead and
unduly influence the jury does not constitute misconduct.33 In
the present case, the prosecutor’s remarks about Cullen’s lack
of emotion could not have misled or unduly influenced the
jurors. They had observed Cullen’s demeanor for themselves.
Thus, there was no misconduct by the prosecutor. Obviously,
if there was no misconduct, there can be no plain error.
Accordingly, this assignment of error is without merit.
3. Excessive Sentence
Cullen argues that her sentence of 70 years’ to life impris-
onment was excessive. The jury convicted Cullen of a
Class IB felony, which carries a sentence of 20 years’ to
30
State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).
31
Id. at 336, 821 N.W.2d at 369 (quoting United States v. Young, 470 U.S. 1,
105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985)). See, also, State v. Barfield, 272
Neb. 502, 723 N.W.2d 303 (2006), disapproved on other grounds, State v.
McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
32
See State v. Gresham, 276 Neb. 187, 752 N.W.2d 571 (2008).
33
State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
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Cite as 292 Neb. 30life imprisonment. Cullen’s sentence was within the statu-
tory range. Accordingly, we review the sentence for an abuse
of discretion.
[16,17] When imposing a sentence, a sentencing judge
should 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 amount of violence involved in the com-
mission of the crime.34 The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and all the facts and circumstances surrounding the defend­
ant’s life.35
Cullen contends that in determining her sentence, the dis-
trict court did not consider her willingness to plead to an
attempt charge. She points out that she is a mother to two
children and that she had pursued a degree in early childhood
development. Cullen asserts that there was no evidence of an
intent to kill Cash. Cullen further argues that the district court
abused its discretion by basing her sentence on the prosecu-
tor’s statements.
Based upon the relevant sentencing factors, we do not find
Cullen’s sentence to be an abuse of discretion. Cullen was 25
years old at the time of the offense. She reported having a
happy childhood and rewarding and satisfying relationships
with her family. Cullen, a mother, had experience and edu-
cation in caring for children and a history of abusing them,
although her relatively minimal criminal history contains no
previous convictions for violent crimes. We have recounted the
details of the current offense and need not repeat them here.
Suffice it to say, the circumstances surrounding Cash’s death
were simply abhorrent, and the evidence demonstrates that
34
See, e.g., State v. Bauldwin, supra note 6.
35
Id.
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Cite as 292 Neb. 30Cullen’s treatment of Cash, a helpless infant, was assaultive
and violent. This assignment of error clearly lacks merit.
4. Ineffective Assistance of Counsel
Cullen argues that her trial counsel was ineffective in these
respects: (1) failing to timely object when Chris testified that
he heard a nurse tell Ashley, “She did this to him”; (2) failing
to timely object to the prosecutor’s statements during closing
arguments that Cullen lacked emotion during the trial; (3) fail-
ing to investigate and call an expert medical witness on behalf
of Cullen; and (4) failing to file a motion for new trial based
on the improper admission of rule 404 evidence and on pros-
ecutorial misconduct.
[18,19] In order to show ineffective assistance of counsel
under Strickland v. Washington,36 a defendant must show, first,
that counsel was deficient and, second, that the deficient per-
formance actually caused prejudice to the defend­ ant’s case.
The two prongs of this test may be addressed in either order,
and the entire ineffectiveness analysis should be viewed with
a strong presumption that counsel’s actions were reasonable.37
[20-23] Prejudice caused by counsel’s deficiency is shown
when there is a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have
been different.38 A reasonable probability is “a probability suf-
ficient to undermine confidence in the outcome.”39 This court
follows the approach to the prejudice inquiry outlined by the
U.S. Supreme Court in Strickland:
“In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
36
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
37
See, State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000); State v.
Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000).
38
See State v. Poe, 284 Neb. 750, 822 N.W.2d 831 (2012).
39
Id. at 774, 822 N.W.2d at 849.
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Cite as 292 Neb. 30evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and fac-
tual findings that were affected will have been affected
in different ways. Some errors will have had a pervasive
effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will
have had an isolated, trivial effect. Moreover, a verdict
or conclusion only weakly supported by the record is
more likely to have been affected by errors than one
with overwhelming record support. Taking the unaffected
findings as a given, and taking due account of the effect
of the errors on the remaining findings, a court making
the prejudice inquiry must ask if the defendant has met
the burden of showing that the decision reached would
reasonably likely have been different absent the errors.”40
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.41 An ineffective
assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.42
(a) Chris’ Testimony
Cullen argues that her trial counsel failed to timely object
to Chris’ testimony that a nurse implicated Cullen as the per-
petrator of Cash’s injuries and that the testimony affected the
jury’s verdict. We disagree with Cullen’s assertion on appeal
that trial counsel failed to timely object. In the above section
titled “II. BACKGROUND,” under the subheading “5. Motion
for M istrial ,” we have described how this event unfolded
at trial.
40
Id. at 774-75, 822 N.W.2d at 849 (quoting Strickland v. Washington, supra
note 36).
41
State v. Newman, supra note 9.
42
Id.
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Cite as 292 Neb. 30The record shows that trial counsel’s conduct was not defi-
cient. Not only did he timely make and, in effect, renew a
specific objection, he also timely moved for a mistrial. But
more to the point, he succeeded in having the offending testi-
mony stricken.
[24] Moreover, Cullen suffered no prejudice. Not only did
the court strike the evidence, it admonished the jury “totally
to disregard that comment entirely.” When an objection to or
motion to strike improper evidence is sustained and the jury is
instructed to disregard it, such instruction is deemed sufficient
to prevent prejudice.43 Cullen’s argument fails on both prongs
of Strickland.
(b) Motion for New Trial
Cullen asserts that her trial counsel was ineffective in failing
to file a motion for new trial based on the improper admission
of purported rule 404 evidence concerning Cash’s prior inju-
ries. We have already concluded that because the evidence of
Cash’s prior injuries was intrinsic or inextricably intertwined
with the injuries that resulted in his death, rule 404 did not
apply. Further, even if testimony of Cash’s prior injuries had
been admitted in error, such error would have been harmless.
Thus, a motion for new trial based on evidence of Cash’s prior
injuries would have been unsuccessful. It necessarily follows
that trial counsel did not provide ineffective assistance by not
filing a motion that had no merit.
Cullen also contends that her trial counsel was ineffective
in failing to file a motion for new trial based on prosecuto-
rial misconduct during closing statements. We have rejected
Cullen’s claim that the prosecutor committed misconduct in
commenting on Cullen’s lack of emotion during trial. Hence,
we conclude that trial counsel was not deficient in opting not to
file a motion for new trial based on prosecutorial misconduct.
Such a motion would have had no merit.
43
State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002).
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Cite as 292 Neb. 30(c) Closing Statements
Cullen argues that her trial counsel was ineffective for not
making a timely objection to the prosecutor’s reference to
her lack of emotion during trial. We have concluded above
that these remarks did not constitute misconduct; therefore,
Cullen’s trial counsel was not deficient in allowing them with-
out objection.
(d) Expert Medical Witness
Cullen argues that the jury’s decision was affected by her
trial counsel’s failure to investigate and call a medical expert
to testify on her behalf. The State asserts, and Cullen concedes,
that the record is inadequate to address this claim. We agree.
The record contains copious medical evidence, but none of it
suggests that another medical expert would offer an opinion
that would support Cullen’s version of events. Without a more
complete record, we decline to address this issue. We express
no opinion whether Cullen’s assigned error, if set forth as an
allegation in a motion for postconviction relief, would be suf-
ficient to require an evidentiary hearing.
VI. CONCLUSION
We find no merit to Cullen’s assertion that the district court
abused its discretion by imposing an excessive sentence. And
the district court did not err in admitting evidence of Cash’s
prior injuries or overruling Cullen’s objection to the prosecu-
tor’s closing statements. Further, Cullen’s claims of ineffec-
tive assistance of trial counsel either lack merit or cannot be
resolved because the record on direct appeal is insufficient. We
affirm Cullen’s conviction and sentence.
A ffirmed.