The charges against Barber arose out of a sexual assault

of A.N. in Barber’s home. In 2017, Barber was charged as

follows:

On or about June 29, 2013, . . . Barber, the Defendant,

then and there being, in Dawes County, Nebraska, did

subject another person to sexual penetration without consent of the victim, or knew or should have known that the

victim was mentally or physically incapable of resisting

or appraising the nature of her conduct, in violation of

Section 28-319, a Class II Felony.

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STATE v. BARBER

Cite as 28 Neb. App. 820

Barber was acquainted with A.N. because he had been dating

her mother since May 2013. Barber lived in a house by himself

in Chadron, Nebraska. A.N. lived in Chadron with her father.

A.N.’s mother lived near Omaha, Nebraska. At the time of the

incident, A.N. was 17 years old and had just finished her junior

year of high school. Barber was 27 years old and employed by

his family’s landscaping and floral business.

On the evening of June 28, 2013, A.N. was drinking vodka

and wine coolers at a party at a friend’s house. A.N. ultimately

vomited in the bathroom, and at that point, she decided she

wanted to leave the party and go to sleep. A.N. was afraid to

go home to her father’s house because she knew he would be

angry and disappointed about her behavior. A.N. was not as

worried about her mother’s reaction, so she called her mother

for ideas about what to do. A.N.’s mother suggested that A.N.

go to Barber’s house, so A.N. set off on foot. In the meantime,

A.N.’s mother called Barber to let him know A.N. was on

her way and that it was all right with her that A.N. sleep at

his house.

While A.N. was walking to Barber’s house, she came to the

attention of a neighbor who noticed her struggling to walk down

the street. The neighbor observed A.N. losing her balance and

walking out of her sandals, so he left his porch and approached

her to ask if she needed help. The neighbor believed A.N. to be

under the influence of alcohol, so he walked with her because

he was afraid that if she fell down, she might pass out on the

sidewalk. While they were walking, the neighbor overheard

A.N. call Barber a total of four times to get directions to his

house. During the fourth call, Barber’s house was visible and

the neighbor observed the front door open and a man standing

against the doorjamb. As he watched A.N. approach Barber’s

house, he decided this situation had the potential to go very

badly, so he decided to notify law enforcement about the situation and suggest they perform a welfare check.

Officer Aron Chrisman responded and was dispatched to

Barber’s house in response to a call about a highly intoxicated

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female. Barber answered the door and acknowledged that

his girlfriend’s daughter was inside and that she was drunk.

Chrisman found A.N. lying on the bed in the bedroom, awake

and fully clothed, and determined she was intoxicated, due to

her slurred speech. Chrisman was the school resource officer at A.N.’s school, so he was familiar with her as a high

school student. Chrisman learned from A.N. that she had her

mother’s permission to sleep at Barber’s house, so he told her

to stay put and he left after 2 or 3 minutes. Chrisman did not

follow up with either of A.N.’s parents nor did he investigate

the party.

A.N. went to sleep and has no memory of the overnight

hours. When A.N. woke up in the morning, she was fully

clothed and all her clothes were in the proper places. By this

time, Barber was in the kitchen “on the phone” with A.N.’s

mother, cooking breakfast and doing laundry. A.N. noticed

blood on the bedding, and when she asked Barber about it, he

said, “‘Don’t you remember last night? Last night was crazy.’”

Barber then told A.N. he had performed oral sex on her. A.N.

did not believe Barber’s account until Barber showed her naked

pictures of herself which he had stored on his cell phone. A.N.

asked Barber to delete the pictures, and he complied. After

they ate breakfast together, Barber drove A.N. back to her car

that had been parked near the site of the party.

Barber’s version of the facts differs only in that he claims

A.N. initiated oral sexual contact after several hours of sleep,

so he reciprocated. Barber also testified that they then proceeded to have “sex in a missionary style.” Barber denied that

A.N. ever told him to stop and stated that because she initiated

the encounter, he believed she had the capacity to consent to

the sexual activity.

At the end of the State’s evidence and again at the close

of Barber’s case, Barber moved for a directed verdict on the

theory that there was no evidence that A.N. lacked the ability

to consent at the time of the act nor was there proof of penetration without consent. The court concluded whether or not

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Cite as 28 Neb. App. 820

A.N. had the capacity to consent was a jury question, because

there was ample evidence she was very intoxicated and sufficient evidence of penetration.

The jury returned a guilty verdict, and Barber immediately

filed a motion for a new trial that was considered and denied

at the sentencing hearing. Barber was sentenced to a term of

incarceration of 10 to 12 years in the custody of the Nebraska

Department of Correctional Services. This direct appeal followed, filed by different counsel than the counsel representing

Barber at trial.

ASSIGNMENTS OF ERROR

Barber raises three distinct errors. First, the district court

erred in denying his motion for new trial, because the only

evidence of penetration was Barber’s admission, which is

insufficient and uncorroborated. Second, the district court erred

in instructing the jury as to “without consent” and failing to

instruct the jury that the burden of proof never shifts to Barber.

And third, Barber received ineffective assistance of counsel

before trial and during trial.

STANDARD OF REVIEW

[1] The standard of review for the denial of a motion for

new trial is whether the trial court abused its discretion in

denying the motion. State v. Briggs, 303 Neb. 352, 929 N.W.2d

65 (2019).

[2] Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal

present questions of law, an appellate court has an obligation

to reach an independent conclusion irrespective of the decision

of the court below. State v. Dady, 304 Neb. 649, 936 N.W.2d

486 (2019).

[3] Jury instructions are subject to the harmless error rule,

and an erroneous jury instruction requires reversal only if the

error adversely affects the substantial rights of the complaining

party. Id.

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Cite as 28 Neb. App. 820

[4] Harmless error review looks to the basis on which

the trier of fact actually rested its verdict; the inquiry is not

whether in a trial that occurred without the error a guilty verdict surely would have been rendered, but, rather, whether the

actual guilty verdict rendered in the questioned trial was surely

unattributable to the error. Id.

[5] Appellate review of a claim of ineffective assistance of

counsel is a mixed question of law and fact. State v. Filholm,

287 Neb. 763, 848 N.W.2d 571 (2014). When reviewing a

claim of ineffective assistance of counsel, an appellate court

reviews the factual findings of the lower court for clear error.

Id. 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, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews

such legal determinations independently of the lower court’s

decision. State v. Filholm, supra.

ANALYSIS

Denial of Motion for New Trial

[6-8] Barber argues the district court erred in denying his

motion for new trial, because the evidence was insufficient to

support his conviction. Barber argues the State failed to prove

the corpus delicti of first degree sexual assault. The corpus

delicti of a crime is the body or substance of a crime—the fact

that a crime has been committed. See State v. Torwirt, 9 Neb.

App. 52, 607 N.W.2d 541 (2000). The corpus delicti may be

proved by circumstantial evidence. Id. Extrajudicial admissions or a voluntary confession is insufficient to prove that a

crime has been committed, but either or both are competent

evidence of the fact and may, with corroborative evidence of

facts and circumstances, establish the corpus delicti and guilty

participation of the defendant. Hoffman v. State, 160 Neb. 375,

70 N.W.2d 314 (1955). See, also, State v. Scott, 200 Neb. 265,

263 N.W.2d 659 (1978).

[9,10] Other than his own admission to A.N. in his kitchen,

Barber argues there was no evidence establishing that

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Cite as 28 Neb. App. 820

penetration occurred. Consequently, Barber claims his extrajudicial statements cannot be sufficient to establish the corpus

delicti and his guilty participation. The rule that the corpus

delicti cannot be proved by the extrajudicial admission of the

defendant is true as a general proposition, yet confessions or

admissions may be considered in connection with the other

evidence to establish the corpus delicti. It is not necessary to

prove the corpus delicti by evidence entirely independent and

exclusive of the confession or admissions. See Limmerick v.

State, 120 Neb. 558, 234 N.W. 98 (1931). See, also, Egbert

v. State, 113 Neb. 790, 205 N.W. 252 (1925) (while voluntary

admission tending to prove crime is insufficient standing alone

to prove corpus delicti, it is competent evidence, and may

with slight corroborating circumstances be sufficient to warrant conviction).

[11,12] Barber’s argument that the corpus delicti was not

proved is limited to his assertion that the evidence was insufficient to prove penetration. He claims that his extrajudicial

admission was not corroborated and is therefore insufficient to

establish the corpus delicti. However, Barber testified at trial

that he penetrated A.N. This goes beyond an extrajudicial statement and constitutes a judicial admission. “[A] judicial admission, as a formal act done in the course of judicial proceedings,

is a substitute for evidence and thereby waives and dispenses

with the production of evidence by conceding for the purpose

of litigation that the proposition of fact alleged by an opponent

is true.” Anderson v. Cumpston, 258 Neb. 891, 897-98, 606

N.W.2d 817, 823 (2000). Accord State v. Canady, 263 Neb.

552, 641 N.W.2d 43 (2002). It waives all right to deny the fact

admitted. Kipf v. Bitner, 150 Neb. 155, 33 N.W.2d 518 (1948).

Therefore, Barber’s in-court testimony that he penetrated A.N.

is conclusive as to that fact.

[13] Aside from the judicial admission, the circumstantial

evidence further corroborated Barber’s extrajudicial statement

that he penetrated A.N. Circumstantial evidence is evidence

which, without going directly to prove the existence of a fact,

gives rise to a logical inference that such fact exists. State v.

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Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019). A.N. testified she saw naked pictures of herself on Barber’s cell phone,

pictures including “up close” of her vagina, and she recalled

there being blood on the sheets. This evidence, coupled with

Barber’s admission to A.N., gives rise to the logical inference that penetration occurred. We reject Barber’s argument to

the contrary.

Jury Instructions

Barber’s second assigned error raises two issues related to

the jury instructions. The first is that the district court erred

in instructing the jury in regard to “without consent.” Barber

takes issue with two instructions in particular: The instruction

on the elements of the crime, and an instruction defining “without consent.” The elements of the crime instruction explained

in part as follows:

ELEMENTS

The elements of first degree sexual assault are:

1. That [Barber] subjected [A.N.] to sexual penetration; and

2. That [Barber] did so either (a) without [A.N.’s]

consent, or (b) when he knew or should have known that

[A.N.] was mentally or physically incapable of resisting

or appr[a]ising the nature of [Barber’s] conduct; and

3. That [Barber] did so on or about the date charged in

Dawes County, Nebraska.

EFFECT OF FINDINGS

If you decide the state proved each element of the

crime beyond a reasonable doubt, then you must find

[Barber] guilty of that crime. Otherwise, you must find

[Barber] not guilty of that crime.

The elements portion of the instruction tracked the language

of Neb. Rev. Stat. § 28-319(1) (Reissue 2016) and instructed

the jury on two theories—that Barber subjected A.N. to sexual penetration without the consent of A.N., in violation of

§ 28-319(1)(a), or alternatively, when Barber knew or should

have known that A.N. was mentally or physically incapable of

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Cite as 28 Neb. App. 820

resisting or appraising the nature of her conduct, in violation

of § 28-319(1)(b).

The second instruction that Barber takes issue with defined

“without consent” as follows:

Without consent means:

a) (i) The victim was compelled to submit due to the

use of force or threat of force or coercion, or (ii) the victim expressed a lack of consent through words, or (iii) the

victim expressed a lack of consent through conduct, or

(iv) the consent, if any was actually given, was the result

of the actor’s deception as to the identity of the actor or

the nature or purpose of the act on the part of the actor;

b) The victim need only resist, either verbally or physically, so as to make the victim’s refusal to consent genuine and real and so as to reasonably make known to the

actor the victim’s refusal to consent; and

c) A victim need not resist verbally or physically where

it would be useless or futile to do so.

A victim may be found mentally or physically incapable of resisting or appraising the nature of their conduct

if the victim experiences a significant abnormality, such

as severe intoxication, and [Barber] knew or should have

known of the victim’s severe intoxication.

[14] The first part of this instruction defining “without

consent” tracked the language of Neb. Rev. Stat. § 28-318(8)

(Reissue 2016). The last paragraph of the instruction is a correct statement of the law regarding the incapacity to resist or

appraise the nature of the conduct. See State v. Rossbach, 264

Neb. 563, 650 N.W.2d 242 (2002) (under statutory provision

governing commission of first degree sexual assault when

alleged attacker knew or should have known alleged victim

was mentally or physically incapable of resisting or appraising

nature of his or her conduct, analysis in determining if such

provision was violated requires existence of significant abnormality, such as severe intoxication or other substantial mental

or physical impairment, on part of alleged victim, and knowledge of abnormality on part of alleged attacker).

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Cite as 28 Neb. App. 820

Barber argues the district court should not have instructed

the jury as to “without consent,” because the State failed to

present any evidence to support the theory that A.N. did not

consent and because it created a conflict with the lack of

capacity to consent theory, subjecting him to prejudice.

[15,16] Barber concedes that he did not object to any of

the jury instructions at the time of trial. As such, we review

for plain error. The failure to object to a jury instruction after

it has been submitted to counsel for review precludes raising

an objection on appeal absent plain error. State v. Hinrichsen,

292 Neb. 611, 877 N.W.2d 211 (2016). Plain error may be

found on appeal when an error unasserted or uncomplained

of at trial, but plainly evident from the record, prejudicially

affects a litigant’s substantial right and, if uncorrected, would

result in damage to the integrity, reputation, and fairness of

the judicial process. State v. Mann, 302 Neb. 804, 925 N.W.2d

324 (2019).

[17] Barber contends that the State’s entire case was based

on the theory that he committed first degree sexual assault

by subjecting A.N. to sexual penetration when Barber knew

or should have known that A.N. was mentally or physically

incapable of resisting or appraising the nature of her conduct.

A victim’s lack of consent is not an element of the crime of

sexual assault when the victim is incapable of resisting or

appraising the nature of his or her conduct. In re Interest of

K.M., 299 Neb. 636, 910 N.W.2d 82 (2018). Barber argues that

because the State did not present any evidence that he compelled A.N. to submit due to threat of force or coercion, any

evidence that A.N. expressed a lack of consent through words

or conduct, or any evidence that he used deception to obtain

consent, the court erred in instructing the jury on the alternative sexual assault theory of “without consent.” We agree.

Combining the definition of “without consent” with “incapable

of resisting” in a single instruction, coupled with counsel’s use

of the two phrases interchangeably as explained below, made

the instructions ambiguous and capable of misleading the jury.

Accordingly, we conclude that the district court committed

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plain error by instructing the jury on the theory of “without consent.”

[18-21] However, our analysis does not end there. Alleged

errors in a jury instruction are examined using a two-step

process. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).

First, the court reviews the case based on the errors assigned

and argued, or it may find plain error. Second, when an error is

identified, the court considers whether the error was harmless

or prejudicial. Id. Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of

the complaining party. Id. Harmless error review looks to the

basis on which the trier of fact actually rested its verdict; the

inquiry is not whether in a trial that occurred without the error

a guilty verdict surely would have been rendered, but, rather,

whether the actual guilty verdict rendered in the questioned

trial was surely unattributable to the error. Id. When examining

for harmless error, the court may look at a variety of factors

including the jury instructions as a whole, the evidence presented at trial, and the closing arguments. Id.

We find State v. Dady, supra, instructive in determining

whether the jury instruction error was harmless. In that case,

the defendant was convicted of first degree sexual assault and

on appeal alleged, among other errors, that the trial court erred

in giving a jury instruction that incorrectly stated the law. The

Nebraska Supreme Court concluded that although the instruction at issue contained essentially correct definitions of applicable terms, it was ambiguous and capable of misleading the

jury and thus, erroneous.

The Dady court further determined that the potentially misleading ambiguity of the instruction did not in fact mislead

the jury. It concluded that the jury’s verdict was surely unattributable to the erroneous instruction, because the instructions,

taken as a whole, combined with the evidence and arguments

presented at trial, clarified the ambiguity and the jury was not

misled by the ambiguous instruction.

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[22] In the present case, we look to the remarks made in

the opening statements and closing arguments, as well as the

manner in which the evidence was presented. During opening

statements, the prosecutor seemed to equate lack of consent

with the lack of capacity to consent due to intoxication. He

stated, “[A.N.] was not capable of consenting. In fact, she

didn’t consent. In fact, she doesn’t even know exactly what

happened to her other than what [Barber], the defendant, told

her that morning.” Barber’s position was that she did consent

and that in fact, she initiated the encounter. Barber’s counsel

stated, “And at the end of this trial — the issue is consent.”

During closing arguments, the prosecutor told the jury, “You

have had absolutely no evidence that that was consensual

in any manner whatsoever. [A.N.] didn’t know it had taken

place. She didn’t even know what happened and was having a hard time believing what had happened until he shows

this photo.” The prosecutor further stated, “The evidence is

overwhelming [Barber] knew or should have known [A.N.’s]

state. And the evidence is overwhelming that he perpetrated

a sexual assault on her.” Barber’s counsel continued to converge the two concepts during closing arguments. Barber’s

counsel stated, “When the judge tells you the elements of

the crime, it’s without her consent. And without her consent

means she had to do something or be unable to do something,

such as from her conduct. And that’s what you have to look at

here.” (Emphasis supplied.) Both parties were using “without

consent” synonymously with a lack of capacity to consent.

We conclude, therefore, that the jury was not misled by any

ambiguity created by the inclusion of “without consent” in the

jury instructions, because it was clear the State’s theory was

incapacity to consent, not that she did not consent. As stated

above, Barber agrees that the State’s case was based on the

theory of incapacity to consent. The court may consider the

facts of the case when determining whether a jury instruction

was confusing or misleading. State v. Dady, 304 Neb. 649, 936

N.W.2d 486 (2019).

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We conclude that the jury could not have been misled by the

erroneous inclusion of “without consent” in the instructions,

because the instructions, when taken as a whole, combined

with the evidence and arguments presented at trial, clarified

any ambiguity such that the jury understood the parties’ use

of the phrase “without consent” to include the incapacity to

consent. Given the manner in which the case was presented,

the jury’s verdict was surely unattributable to the erroneous

inclusion of “without consent,” and thus, the erroneous jury

instructions were harmless error.

[23] Barber next argues that he was prejudiced by the court’s

failure to instruct the jury that “the burden of proof never shifts

to [Barber],” because this may have caused the jury to believe

Barber had a duty to prove A.N. did in fact consent. Brief for

appellant at 23. The final instructions delivered by the court

specifically instructed the jury that Barber was presumed to be

innocent and must be acquitted unless the State proved his guilt

beyond a reasonable doubt. Further, the elements instruction

included an instruction that the jury must find that the State

proved each and every element of the crime beyond a reasonable doubt before it could find Barber guilty of the crime.

Admonitions given during the trial reminded the jurors that the

charges against Barber are “simply an accusation and nothing

more” and “[Barber] has plead [sic] not guilty. He is presumed

innocent . . . unless and until you decide that the State has

proved him guilty beyond a reasonable doubt.” Absent evidence to the contrary, it is presumed that a jury followed the

instructions given in arriving at its verdict. State v. Henderson,

301 Neb. 633, 920 N.W.2d 246 (2018). Barber has failed to

overcome this presumption.

Ineffective Assistance of

Counsel Claims

[24-26] When a defendant’s trial counsel is different from

his or her counsel on direct appeal, as is the case here, the

defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant

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or is apparent from the record. See State v. Sinkey, 303 Neb.

345, 929 N.W.2d 35 (2019). Otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding.

Id. 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. Id. In order to

avoid a procedural bar to a future postconviction proceeding,

a claim of ineffective assistance of counsel must be presented

with enough particularity for (1) an appellate court to make a

determination of whether the claim can be decided upon the

trial record and (2) a district court later reviewing a petition for

postconviction relief to be able to recognize whether the claim

was brought before the appellate court. Id.

Barber raises several claims of ineffective assistance of trial

counsel, both before and during trial. Specifically, the claims

include his trial counsel’s failure to locate, interview, and

depose 11 specifically identified material witnesses prior to

trial; failure to obtain specifically identified material evidence

prior to trial; ineffective assistance during voir dire; failure to

call specific witnesses during trial; failure to impeach A.N. and

other specifically identified witnesses during trial; failure to

impeach three specifically identified witnesses during trial; and

failure to object to jury instructions.

[27] In concluding Barber did not suffer any prejudice as a

result of the court’s instruction error, we have disposed of this

posttrial ineffective assistance claim. See State v. McDaniel,

17 Neb. App. 725, 771 N.W.2d 173 (2009) (court found record

adequate to address counsel’s failure to object to erroneous

instruction on prejudice prong of test for ineffective assistance

of counsel, and given resolution of instruction issue, it followed that defendant was not prejudiced by any shortcoming

of trial counsel concerning instruction). But that is the only

claim we are able to resolve at this stage of the proceedings.

Although we believe all the claims are sufficiently stated to

permit a district court to recognize whether the claim was

raised in this court, the trial record simply does not permit our

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review. As in most cases raising ineffective assistance of counsel claims on direct appeal, the trial record reviewed on appeal

is “‘devoted to issues of guilt or innocence’” and does not usually address issues of counsel’s performance. State v. Filholm,

287 Neb. 763, 769, 848 N.W.2d 571, 578 (2014).

For the foregoing reasons, we affirm Barber’s conviction

and sentence.