STATE OF NEBRASKA V. HAROLD L. STONE

Hebron, NE - Criminal Defense Attorney, first degree sexual assault of a child, one count of child abuse





In June 2016, Stone was charged by information with five counts of first degree sexual

assault of a child and one count of child abuse. The amended information alleged Stone sexually

penetrated the victim, H.W., on five separate occasions in 2014 and 2015, at a time when H.W.

was under the age of 16 and Stone was over the age of 25. Stone entered pleas of not guilty, and

the matter proceeded to trial.

H.W. was adopted by her parents when she was 9 months old after suffering severe abuse

and neglect for the first few months of her life. H.W. was subsequently diagnosed with fetal alcohol

effects and reactive attachment disorder. H.W.’s mother, Lynne, testified that H.W. had behavioral

problems as a result of her diagnoses and she required a great deal of structure, routine, and

oversight. H.W.’s therapist elaborated on H.W.’s diagnosis of reactive attachment disorder when

she testified that children with reactive attachment disorder can be manipulative and great

“storytellers.” In addition, they can be apt to form inappropriate attachments with older adults, to

be hypersexual, and to fail to anticipate the consequences of their actions. Children with reactive

attachment disorder can be difficult to parent and are vulnerable to abuse.

H.W. was homeschooled after her sixth grade year so that Lynne could more closely

monitor H.W. At home, H.W. was not permitted to have her own cellular telephone, nor was she

permitted to have any unsupervised access to a computer.

During the spring of 2014, when H.W. was 14 years old, H.W. and her family met Stone

at church. Shortly thereafter, H.W. began assisting Stone in his nearby garden, greenhouse, and

specialty store. Then, in August, Stone approached Lynne regarding him helping to homeschool

H.W. In particular, Stone indicated that he could help H.W. with science and math as a result of

his background. Lynne agreed.

At trial, H.W. testified that when Stone started homeschooling her, he began making

comments of a sexual nature, including telling H.W. that she needed “sex education.” In addition,

despite Lynne’s directives, Stone gave H.W. her own cellular telephone and access to an iPad and

helped H.W. to set up her own email and social media accounts.

H.W. testified that on August 20, 2014, which was Stone’s birthday, Stone kissed her on

the neck. H.W. indicated that she told Stone, “No.” However, during the next few weeks, Stone

continued to act sexually toward H.W., including repeatedly taking her clothes off and touching

her breasts and touching both outside and inside of her vagina. H.W. described how Stone would

become upset with himself when he was unable to perform sexually during these instances.

On September 24, 2014, which was H.W.’s 15th birthday, she and Stone planned to spend

the day together. H.W. wanted to get her hair done, get her nose pierced, and go to a restaurant to

eat. Stone told H.W. that they were also going to have sexual intercourse that day. H.W. testified

that she did not feel that she had a choice about having sex with Stone, especially when he showed

her that he had purchased condoms. When H.W. and Stone returned to Stone’s house that

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afternoon, Stone gave H.W. an alcoholic beverage to drink while he took “Viagra.” They both

went upstairs to the guest room where they got undressed. H.W. described touching Stone’s erect

penis and him touching her bare chest and inside of her vagina. H.W. testified that they performed

fellatio and cunnilingus on each other and then had penile-vaginal sexual intercourse. H.W.

described that Stone ended up not wearing a condom, but did ejaculate.

After having sexual intercourse with Stone, H.W. went to Stone’s store for a little while.

When she returned to Stone’s house, they had sexual intercourse again. This time, she remembered

him ejaculating on her right leg. H.W. testified that her father then came to pick her up from

Stone’s house.

H.W. testified that her sexual relationship with Stone continued on a regular basis through

December 2014. She described two specific instances which occurred during the fall and winter

of 2014. During these instances, Stone would make her an alcoholic beverage to drink and they

would engage in various sexual acts, including penile-vaginal sex. H.W. also described Stone

taking pictures of her in his bed. H.W. explained that Stone took one of the pictures while he was

straddling her in his bed.

Stone left Nebraska for much of the month of January 2015, but when he returned, H.W.

testified that their sexual relationship resumed. H.W. testified that her last sexual experience with

Stone occurred in February 2015, when Stone drove her and her sister to an educational conference

in Omaha, Nebraska. The night before the conference, H.W. described talking with Stone over

“facetime” while she was in the bathtub. Evidence at trial revealed that Stone had taken a

screenshot of H.W. during this telephone call which depicted her in the bathtub. This photograph

was found on his electronic devices.

On the way home from the conference, H.W. and Stone believed that H.W.’s sister was

asleep in the backseat of the vehicle. Stone began touching H.W. under her shirt and bra. He then

put his hand in her pants and put his fingers inside of her vagina. When he was done, H.W. and

Stone held hands with their fingers interlocked.

H.W. testified that her sexual relationship with Stone ended because Lynne would no

longer allow her to see Stone. H.W. indicated that at that time, she believed she loved Stone and

that they were going to have a future together. A few months after their sexual relationship ended,

however, H.W. disclosed that Stone had been sexually abusing her.

While H.W.’s testimony was the only direct evidence of the sexual abuse, there was other

evidence presented at trial which corroborated her account of her relationship with Stone. For

example, in an email sent from H.W. to Stone the night before H.W.’s birthday, H.W. wrote,

“Hair[,] Piercing[,] Massage[,] Eat[,] Victoria Secret[,] Condoms[, and] YADA YADA YADA[.]”

Within minutes, Stone responded, “Got it! Good night!” In December 2014, Lynne found a card

written by H.W. to Stone. In the card, H.W. had written, “Can[’]t wait till I[’]m 18 because its

Legal and etc.” When Lynne confronted Stone about the card, Stone wanted to see the card and

then took it from Lynne and did not return it.

Inappropriate photographs taken of H.W., some with one of Stone’s electronic devices,

were found saved on Stone’s computer. These photographs included two images of H.W. naked in

Stone’s bed covered only by a sheet.

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H.W.’s sister testified about her time with H.W. and Stone at the educational conference

in February 2015. She testified that she observed Stone tell H.W. he loved her, hug H.W., and kiss

H.W. on the top of her head. She admitted that she had fallen asleep on the ride home from the

conference, but when she woke up, she observed H.W. and Stone holding hands with each other

with their fingers interlocked.

Lynne testified regarding her observations of H.W. and Stone as well. She indicated that

she had some concerns regarding Stone’s relationship with H.W. early on. However, these

concerns increased when Stone sent Lynne a text message on October 2, 2014, at 1:42 in the

morning. The text message said:

Here is when you know that it is on the edge of being obsessive. . . . You wake up in the

middle of the night in a hotel and scramble to put on your clothes because you got to take

[H.W.] home. . . . Until [your wife] reminds you that you are in Ogallala, and there is no

way [H.W.] could be here.”

Lynne testified that around the same time that she received that text message from Stone,

she started going with H.W. to help in Stone’s store. While at the store, Lynne observed Stone and

H.W. whispering together. In addition, they would regularly find excuses to leave alone together,

despite Lynne’s protests. Lynne explained that on multiple occasions, Stone and H.W. indicated

that they were going to take the composting to the greenhouse, but when they returned awhile later,

the composting was still in the back of Stone’s truck.

Lynne testified that in late January 2015, after Lynne had told Stone that he could no longer

be alone with H.W., Stone “begged and pleaded” with Lynne to sign her parental rights to H.W.

over to Stone. In February 2015, after Lynne had cut off all contact between H.W. and Stone, Stone

continued to try and contact H.W.

Stone testified in his own defense. He denied ever having sexual intercourse with H.W. He

admitted that H.W. would talk to him about her sexual relationships with other boys and that, as a

result, he talked with H.W. about safe sex practices. Stone also denied taking inappropriate

photographs of H.W. He indicated that he was not even home during the time one of the

photographs had been taken. While he was not sure how the images got onto his computer, he did

testify that he knew of the pictures’ existence prior to the police investigation. Stone indicated that

in January 2015, he found “a cache of very inappropriate images on [his] computer.” He speculated

that H.W. put them on the computer because she had access and his permission to use his electronic

devices.

Ultimately, the jury convicted Stone of four counts of first degree sexual assault of a child

and one count of child abuse. The jury acquitted Stone of one of the counts of first degree sexual

assault of a child alleged in the information.

As we mentioned above, Stone appealed from his convictions. At the time of this appeal,

Stone had the same counsel as during the trial. As such, he did not allege any claims of ineffective

assistance of trial counsel in his direct appeal. Rather, he alleged a challenge to the constitutionality

of the statute which imposed a mandatory minimum prison term for convictions of first degree

sexual assault of a child. In addition, he argued the sentences imposed upon him by the district

court were excessive. The Supreme Court affirmed Stone’s convictions and sentences. See State

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v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017). Specifically, the court held that Stone had failed

to preserve for its review his constitutional challenge and that the sentences imposed by the district

court were not unreasonable or excessive. Id.

In October 2018, Stone filed a verified motion seeking postconviction relief. In the motion,

he alleged numerous claims of ineffective assistance of trial and appellate counsel. The State filed

a motion to dismiss the verified motion. Ultimately, the district court denied Stone’s verified

motion without an evidentiary hearing. The court found that counsel’s performance was not

deficient at the trial or appellate level. The court also found that given the totality of the evidence

presented at trial, even if other evidence was offered or available, there was not a reasonable

probability that the result of the trial would have been different.

Stone appeals from the district court’s order here.

III. ASSIGNMENT OF ERROR

Stone generally contends that the district court erred in denying him an evidentiary hearing

on the issues raised in his motion for postconviction relief. We note that Stone does not assign

error to the denial of every claim made in his petition. We address those claims to which error is

specifically assigned and argued in his brief.

IV. STANDARD OF REVIEW

In appeals from postconviction proceedings, an appellate court reviews de novo a

determination that the defendant failed to allege sufficient facts to demonstrate a violation of his

or her constitutional rights or that the record and files affirmatively show that the defendant is

entitled to no relief. State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).

V. ANALYSIS

Stone contends that the district court erred in denying him an evidentiary hearing on the

issues raised in his motion for postconviction relief. As we previously noted, in Stone’s motion for

postconviction relief, he raised numerous allegations of ineffective assistance of trial and appellate

counsel. Before turning to Stone’s specific claims on appeal, we review the general principles

governing postconviction actions asserting claims of ineffective assistance of counsel.

Postconviction relief is a very narrow category of relief, available only to remedy

prejudicial constitutional violations that render the judgment void or voidable. State v. Haynes,

299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on other grounds, State v. Allen, 301 Neb. 560,

919 N.W.2d 500 (2018). On appeal from the denial of postconviction relief without an evidentiary

hearing, the question is not whether the movant was entitled to relief by having made the requisite

showing. Instead, it must be determined whether the allegations were sufficient to grant an

evidentiary hearing. Id.

The allegations in a motion for postconviction relief must be sufficiently specific for the

district court to make a preliminary determination as to whether an evidentiary hearing is justified.

Id. In a proceeding under the Nebraska Postconviction Act, the application is required to allege

facts which, if proved, constitute a violation or infringement of constitutional rights, and the

pleading of mere conclusions of fact or of law is not sufficient to require the court to grant an

evidentiary hearing. State v. Haynes, supra. An evidentiary hearing must be granted when the facts

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alleged, if proved, would justify relief, or when a factual dispute arises as to whether a

constitutional right is being denied. Id.

To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her

counsel’s performance was deficient and that this deficient performance actually prejudiced the

defendant’s defense. State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018). A court may address

the two prongs of this test, deficient performance and prejudice, in either order. State v.

Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).

In order to establish a right to postconviction relief based on a claim of ineffective

assistance of counsel, the defendant has the burden first to show that counsel’s performance was

deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary training and

skill in criminal law in the area. State v. Haynes, supra. In determining whether trial counsel’s

performance was deficient, courts give counsel’s acts a strong presumption of reasonableness.

State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014). An appellate court will not judge an

ineffectiveness of counsel claim in hindsight. State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404

(2011). We must assess trial counsel’s performance from counsel’s perspective when counsel

provided the assistance. Id. When reviewing claims of ineffective assistance, we will not

second-guess trial counsel’s reasonable strategic decisions. Id.

Next, the defendant must show that counsel’s deficient performance prejudiced the defense

in his or her case. State v. Haynes, supra. To establish the prejudice prong of a claim of ineffective

assistance of counsel, the defendant must demonstrate a reasonable probability that but for

counsel’s deficient performance, the result of the proceeding would have been different. See State

v. Schwaderer, supra. A reasonable probability does not require that it be more likely than not that

the deficient performance altered the outcome of the case; rather, the defendant must show a

probability sufficient to undermine confidence in the outcome. State v. Custer, 298 Neb. 279, 903

N.W.2d 911 (2017).

We now turn to Stone’s specific allegations of ineffective assistance of counsel. We divide

Stone’s allegations into those that occurred prior to trial, those that occurred during the trial, and

those that occurred on direct appeal.

1. PRETRIAL INVESTIGATIONS AND TRIAL PREPARATION

(a) Failure to File Motion for Change in Venue

Stone alleges his trial counsel provided ineffective assistance by failing to file a motion for

a change in venue. Specifically, Stone alleges that counsel should have requested a change in venue

due to both the pretrial publicity generated about the case in Thayer County and the “prominence”

of H.W.’s family in Thayer County. Brief for appellant at 19. Stone asserts that “it was impossible

for [him] to have a fair trial” there. Id. at 20. Stone contends that he asked trial counsel to file a

motion for a change of venue, but counsel refused to do so based upon the cost.

Juror exposure to information about a defendant’s prior convictions or to news accounts of

the crime with which he is charged does not alone presumptively deprive the defendant of due

process. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009). A court will normally not

presume unconstitutional partiality because of media coverage, unless the record shows a barrage

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of inflammatory publicity immediately prior to trial amounting to a huge wave of public passion

or resulting in a trial atmosphere utterly corrupted by press coverage. Id. The quantum of news

coverage is not dispositive. Id. Even the community’s extensive knowledge about the crime or the

defendant through pretrial publicity is insufficient in itself to render a trial constitutionally unfair

when the media coverage consists of merely factual accounts that do not reflect animus or hostility

toward the defendant. Id.

Stone provided no examples of inflammatory news coverage so egregious that it corrupted

the trial atmosphere. In addition, he provided no specific examples of bias outside of his own

generalized assertions that H.W.’s family was well known in the area and he was not. More

significantly Stone does not allege that any of the jurors who actually sat on his case were biased

either against him or in favor of H.W. Essentially, Stone has failed to sufficiently demonstrate that

had his trial counsel filed a motion for a change in venue, that the motion would have been

successful. As a result, the district court did not err in denying Stone an evidentiary hearing on this

ground.

(b) Failure to File Motion to Suppress

At trial, the State offered into evidence exhibit 99, a journal which had been authored by

Stone and seized by police during a search of his home. The journal included notes about Stone’s

garden work, to do lists, and recipes. In addition, it included writings about H.W., particularly

writings about H.W.’s personality, behaviors, and Stone’s efforts to help her. At one point in the

journal, Stone writes, “Is [H.W.] ‘in love’ with me. She is in love with someone who was willing

to reach through the nastiness and see her, play with her, take her seriously.” Stone indicated that

H.W. spoke with him about her sexual experiences and while he listened, he would quickly change

the topic to something work related. He also indicated that H.W. would initiate conversations about

having a sexual relationship with Stone, but he would not engage with her.

Later in the journal, Stone wrote about his struggles after H.W.’s mother would no longer

permit him to see H.W. or herself. In writing on this subject, Stone expresses a confusion about

why his relationship with them had to end. He appears to deny having any sort of inappropriate

relationship with H.W. The journal indicates that Stone suffered from frequent anxiety attacks.

In his motion for postconviction relief and in this appeal, Stone alleges that his trial counsel

provided ineffective assistance when he failed to file a motion to suppress the journal. Stone asserts

that the journal seized by law enforcement during the search of his home was outside the scope of

the search warrant and that, had counsel filed a motion to suppress, the journal would not have

been admitted as evidence at trial. Stone further asserts that the journal was prejudicial and denied

him the right to a fair trial.

Upon our review, we conclude that Stone is not entitled to an evidentiary hearing on this

ground. First, we note that Stone has failed to provide any case law or other support for his

conclusory suggestion that a motion to suppress the journal would have been successful. In its

order denying Stone’s motion for postconviction relief without an evidentiary hearing, the district

court found “that Nebraska law allows admission of evidence if the officers are acting under a

warrant and rely on it in good faith.” In his brief on appeal, Stone argues that “the good faith

exception is inapplicable to the present case because law enforcement was not relying upon a

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mistake or error made by the magistrate.” Brief for appellant at 19. However, he cites to no case

law to support his generalized assertion.

Even if we were to find that counsel provided deficient performance when failing to file a

pretrial motion to suppress the journal, Stone has failed to demonstrate how he was prejudiced by

the admission of this evidence. He merely asserts that the journal was “prejudicial” to his defense,

but does not explain how. In our review of the journal, there is nothing in the journal which overtly

demonstrates that Stone engaged in a sexual relationship with H.W. To the contrary, Stone denies

having such a relationship multiple times in the journal. Stone’s musings about H.W. relate more

to his desire to help H.W. with her behavioral problems, her home life, and her education. Stone

testified to all of this during the trial. Because Stone cannot demonstrate any prejudice as a result

of the admission of the journal into evidence, he is not entitled to an evidentiary hearing on this

ground.

(c) Failure to File Daubert/Schafersman Motion Regarding

Admissibility of Expert Testimony

At trial, the State called Dr. Barbara Sturgis to testify during its case in chief. Sturgis is a

psychologist who has specialized training in dealing with victims of child sexual assault. She has

previously been certified as an expert witness in the area of child sexual assault in Nebraska courts

at least 17 times, including on the topics of how children respond to sexual abuse, how and when

children disclose sexual abuse, and how to appropriately conduct interviews of victims of child

sexual abuse. Sturgis testified that there is no “typical” reaction to sexual assault in children. She

also testified that when children disclose sexual assault, they often do not provide all of the details

at first.

In his motion for postconviction relief and in this appeal, Stone alleges that his trial counsel

provided ineffective assistance of counsel when he failed to “file a Daubert/Schafersman motion

to determine the admissibility of” Sturgis’ testimony. Brief for appellant at 20. Specifically, Stone

alleges that had a hearing been held on such a motion, the district court would have become aware

that the research relied upon by Sturgis was “conducted six or more years prior to trial” and that

during the hearing evidence could have been adduced regarding the initial or continued validity of

those studies. Id. Stone also alleges that evidence could have been adduced regarding how H.W.’s

reactive attachment disorder diagnosis may have affected Sturgis’ opinions. Upon our review, we

do not find that Stone is entitled to an evidentiary hearing on this ground.

Under the Daubert/Schafersman jurisprudence, the trial court acts as a gatekeeper to ensure

the evidentiary relevance and reliability of an expert’s opinion. State v. Edwards, 278 Neb. 55, 767

N.W.2d 784 (2009). This gatekeeping function entails a preliminary assessment of whether the

reasoning or methodology underlying the testimony is valid and whether that reasoning or

methodology properly can be applied to the facts in issue. Id. Once the validity of the expert’s

reasoning or methodology has been satisfactorily established, any remaining questions regarding

the manner in which that methodology was applied in a particular case will generally go to the

weight of such evidence. State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003).

In evaluating the admissibility of expert scientific testimony, a trial judge considers a

number of factors. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012). These factors include

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whether a theory or technique can be (and has been) tested; whether it has been subjected to peer

review and publication; whether, in a particular technique, there exists a high known or potential

rate of error; whether standards exist for controlling the technique’s operation; and whether the

theory or technique enjoys general acceptance within a relevant scientific community. Id. These

factors are not exclusive or binding; different factors may prove more significant in different cases,

and additional factors may prove relevant under particular circumstances. Id.

In his brief on appeal, Stone has failed to affirmatively allege which of the factors

delineated above would have warranted excluding the exclusion of Sturgis’ testimony. Instead,

Stone merely alleges that the research and studies relied upon by Sturgis are around 6 years old.

He then concludes that based upon the age of the studies, there may have been more recent research

which may have contained updated information. Such conclusory allegations are not sufficient to

warrant an evidentiary hearing on this ground.

A Daubert/Schafersman motion addressing the content of Sturgis’ testimony would not

have resulted in exclusion. In her testimony, Sturgis stated that she has been certified as an expert

witness in the area of child sexual assault in Nebraska courts at least 17 times. Expert testimony

on the topic of how children react to sexual assault and when they disclose has been found to be

admissible in our courts. We addressed this issue in State v. McCurdy, 25 Neb. App. 486, 908

N.W.2d 407 (2018). There we stated:

The primary purpose of Sturgis’ testimony, as limited after McCurdy’s pretrial

motion in limine, was to provide the jury with background concerning child victims and

how they differ from adult victims. The Nebraska Supreme Court has previously approved

of the use of the type of testimony given by Sturgis. See, e.g., State v. Fleming, 280 Neb.

967, 792 N.W.2d 147 (2010). The court has noted that this type of evidence is helpful

because “‘“[f]ew jurors have sufficient familiarity with child sexual abuse to understand

the dynamics of a sexually abusive relationship,” and “the behavior exhibited by sexually

abused children is often contrary to what most adults would expect.”’” Id. at 973, 792

N.W.2d at 154, quoting State v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992).

State v. McCurdy, 25 Neb. App. at 500, 908 N.W.2d at 418.

It is clear that the subject matter of Sturgis’ testimony was relevant and would not have

been precluded in a Daubert/Schafersman hearing. The issue raised goes to the weight, not the

admissibility of Sturgis’ testimony. We note that Sturgis was thoroughly cross-examined by trial

counsel regarding the studies and research she relied upon in formulating her opinions. We further

note that both the trial and appellate courts of this state have recognized Sturgis to be qualified to

give expert testimony on these issues. The Supreme Court has previously held that trial courts need

not reinvent the wheel each time that specialized evidence is adduced. State v. Casillas, 279 Neb.

820, 782 N.W.2d 882 (2010). Instead, once a Nebraska trial court has actually examined and

assessed the reliability of a particular scientific wheel under Daubert, and its determination has

been affirmed on appeal, then other courts may simply take judicial notice and ride behind. State

v. Casillas, supra.

Finally, we note that a Daubert/Schafersman hearing would not have been warranted based

upon Stone’s assertion that Sturgis’ opinion may have been affected by H.W.’s reactive attachment

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disorder diagnosis. Again,the application of Sturgis’ reasoning and methodology to the facts of

this case go to the weight of Sturgis’ testimony, not to the admissibility. Trial counsel had the

opportunity and did question Sturgis regarding the effect of H.W.’s diagnosis on Sturgis’ opinions.

(d) Failure to Obtain Material Evidence

(i) Stone’s Cellular Telephone Records

In his brief on appeal, Stone alleges that his trial counsel provided ineffective assistance

when he failed to subpoena or otherwise obtain Stone’s cellular telephone records. Stone asserts

that these records would have established that he was not at his house at the time when the

inappropriate photographs of H.W. laying in his bed were taken. And, as a result, the records would

have established that he had not taken the photographs. We note that in his motion for

postconviction relief, Stone only alleged that the records may establish whether he was not at home

when the photographs were taken. His allegation was equivocal. He did not affirmatively assert

that he was not at home during these times. Upon our review, we find that Stone is not entitled to

an evidentiary hearing on this issue.

We further note that even if Stone’s cellular telephone records demonstrated that Stone’s

cellular telephone was not located at Stone’s house when the photographs were taken, such

evidence does not definitively demonstrate that Stone was not at his house when the photographs

were taken. The records would also not explain how or why the photographs were later saved on

Stone’s other electronic devices. Ultimately, we conclude that given the totality of the evidence

presented at trial, the admission into evidence of Stone’s cellular telephone records would not have

changed the result of the trial. The records would not have definitively contradicted H.W.’s

allegations of sexual assault and would not have adequately rebutted the array of inappropriate

photographs of H.W. found in Stone’s possession. Stone cannot show that he was prejudiced by

counsel’s failure to obtain and offer into evidence the cellular telephone records.

(ii) Electronic Devices in H.W.’s Home

One of the photographs of H.W. in Stone’s bed was taken with a specific electronic device

that was not located in Stone’s possession. Stone alleges that his trial counsel provided ineffective

assistance in failing to investigate whether that specific electronic device was in the possession of

H.W. and her family. He contends that if the device was found in the possession of H.W. or her

family, such information would establish that someone else was responsible for taking one of the

photographs of H.W. in Stone’s bed. Upon our review, we find that Stone was not entitled to an

evidentiary hearing on this issue.

As we discussed above, the evidence presented at trial suggested that one of the

photographs of H.W. taken in Stone’s bed was taken with Stone’s cellular telephone. In addition,

the evidence also established that both of the photographs of H.W. in Stone’s bed were uploaded

to Stone’s laptop computer. Stone’s assertion that the electronic device which took the other

photograph of H.W. in his bed belonged to H.W.’s family is mere conjecture. He points to no

evidence which would suggest that the device would have been found at H.W.’s residence had

counsel attempted to locate the device. Moreover, even if the device was located at H.W.’s

residence, that would not definitively demonstrate that Stone did not take the photograph of H.W.,

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as Stone alleges. Locating the device at H.W.’s residence would also not explain how the

photograph was downloaded and saved on Stone’s laptop. Given all the evidence presented at trial,

we do not believe that had counsel investigated the ownership of the electronic device, it would

have changed the outcome of the proceedings.

(iii) Presence of Ironing Board in Stone’s Bedroom

At trial, there was some discussion of whether one of the photographs taken of H.W. laying

in Stone’s bed was taken by another person present in Stone’s bedroom or whether the photograph

was taken using an automatic photo timer, such that H.W. could have taken the photograph herself.

Photographs of Stone’s bedroom, taken months after the sexual abuse concluded, showed that

there were no shelves, tables, or desks present in the bedroom to assist with the positioning of the

phone had the automatic photo timer had been used.

On appeal, Stone alleges that he informed his trial counsel that at the time the photograph

of H.W. was taken, there was an ironing board located in his bedroom “which could have allowed

for the taking of a self-imposed timer photo.” Brief for appellant at 18. Stone alleges that his trial

counsel was ineffective for failing to present this information to the jury. We find that Stone is not

entitled to an evidentiary hearing on this issue. Stone testified in his own behalf at trial. He

specifically denied taking the photographs of H.W. We cannot see how any further testimony that

he may have given as to an alleged mechanism for how H.W. could have produced the photograph

herself would have made his denial more believable. Trial counsel’s decision not to have Stone

elaborate on his theory of how the photograph could have been taken does not constitute deficient

performance on the part of his trial counsel. Nor can Stone show that said decision was prejudicial

to his defense.

(e) Failure to Depose State’s Expert Witness

In his motion for postconviction relief and in this appeal, Stone alleges that his trial counsel

was ineffective in failing to depose Sturgis prior to trial. Specifically, he alleges that had counsel

deposed Sturgis, he would have discovered that she relied on two books as the bases for her

opinions and would have discovered that the books “were at least six years old at the time of trial.”

Brief for appellant at 14. Stone alleges that such information would have called “the reliability of

[Sturgis’] testimony into serious question.” Id.

Upon our review of the record, we determine that despite counsel’s failure to depose

Sturgis prior to trial, he adequately cross-examined her regarding the accuracy and limitations of

the studies that she relied on in forming her opinions. Counsel also questioned Sturgis regarding

the application of the studies to specific victims of abuse. Given this cross-examination, it is not

clear what additional information counsel could have obtained by deposing Sturgis. As the district

court noted, “a failure to depose does not mean that the lawyer was unaware of the statements of

the witnesses.” We conclude that Stone cannot show he was prejudiced by counsel’s failure to

depose Sturgis.

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2. TRIAL

(a) Failure to Request Record to Include Voir Dire

At trial, voir dire proceedings were not recorded and, as a result, those proceedings are not

included in our record. On appeal, Stone alleges that his trial counsel was ineffective by failing to

request that voir dire be put on the record. Specifically, he asserts that because voir dire was not

included in the record, he was not able “to have a meaningful appellate review of voir dire.” Brief

for appellant at 21.

In State v. Jones, 246 Neb. 673, 675, 522 N.W.2d 414, 415 (1994), the Supreme Court held

that its court rules require the transcription of voir dire only “when requested by counsel, any party,

or the court.” See, also, Neb. Ct. R. § 2-105(A)(2) (rev. 2010). The court then reasoned that because

recording voir dire is not mandatory by the court rules, “the failure to require recordation cannot

be said, ipso facto, to constitute negligence or inadequacy of counsel.” State v. Jones, 246 Neb. at

675, 522 N.W.2d at 415-16.

Given that a verbatim record of voir dire is not mandatory and given Stone’s generalized

claim of ineffective assistance of counsel in this regard, we find that Stone has failed to prove his

trial counsel’s performance was deficient, and he has failed to prove any prejudice from the fact

that voir dire was not recorded. Stone has simply not explained with any specificity what occurred

during voir dire which would have warranted any kind of relief either during his direct appeal or

during his postconviction proceedings.

We do note that in his appeal from the district court’s denial of an evidentiary hearing,

Stone briefly alleges that during voir dire, his trial counsel failed to question prospective jurors as

to their media exposure involving the allegations in the present case. Even assuming that counsel

did not question the prospective jurors on this topic, we do not find that Stone was entitled to an

evidentiary hearing on this issue.

The law does not require that a juror be totally ignorant of the facts and issues involved in

the case. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). A dismissal of a prospective juror

is not required if the prospective juror formed an opinion based on newspaper statements,

communications, comments or reports, or upon rumor or hearsay if the prospective juror states

under oath that he can render an impartial verdict and the court is satisfied of such. Id. Here, Stone

does not allege that any of the venirepersons who actually sat on the jury were incapable of

rendering an impartial verdict. In fact, given that the jury ultimately acquitted Stone of one of the

charged counts of first degree sexual assault of a child, it seems clear that the jury was not

fundamentally biased against Stone.

(b) Failure to Present Testimony of Material Witnesses

(i) H.W.’s Father

Stone alleges that his trial counsel was ineffective “by neglecting to call H.W.’s father,

Jerry [], to testify at trial.” Brief for appellant at 13. Stone indicates that had Jerry testified, he

would have impeached the credibility of H.W.’s trial testimony by stating that when he picked up

H.W. from Stone’s residence, he never smelled alcohol on H.W.’s person, nor did he suspect that

she had previously consumed alcohol. The district court found that counsel’s decision not to call

- 13 -

Jerry at trial must be considered a strategic trial decision. The court also noted, “One can easily

see why calling H.W.’s father as a witness . . . could be a catastrophic move for the defense.”

Upon our review of Stone’s allegation of ineffective assistance of trial counsel, we first

note that it is not clear from Stone’s allegation how he knows what Jerry would have testified to if

called to the stand. Stone’s assertion without any explanation of the basis of his knowledge appears

to be simple conjecture about Jerry’s testimony. If Stone and his counsel did not know exactly

what Jerry would testify to, we agree with the district court that calling him to testify would not

have been a sound legal strategy. A reasonable strategic decision to present particular evidence, or

not to present particular evidence, will not, without more, sustain a finding of ineffective assistance

of counsel. State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018). Strategic decisions made by

trial counsel will not be second-guessed so long as those decisions are reasonable.

Moreover, we conclude that Stone has failed to demonstrate how he was prejudiced by trial

counsel’s failure to call Jerry to testify. Even if Jerry had testified that he did not smell alcohol on

H.W. or suspect that she had been drinking when he picked her up from Stone’s house, his

testimony would not have definitively disproved H.W.’s allegations of sexual assault, especially

considering the other evidence which corroborated H.W.’s claims. Based upon H.W.’s testimony,

it seems that H.W. often consumed alcohol in advance of her sexual encounters with Stone and

sometimes hours before being picked up by Jerry or another family member. H.W.’s testimony

indicated that she did not consume excessive amounts of alcohol, typically only one drink. As

such, it is possible that H.W. could have testified truthfully about consuming alcohol with Stone

and that Jerry would not have smelled the alcohol on H.W.’s person. Consequently, if Jerry had

testified that he did not notice that H.W. had been drinking, such testimony would not necessarily

have impeached H.W.’s credibility.

(ii) Stone’s Family Members, Friends, and Coworkers

Stone alleges that his trial counsel was ineffective by failing to call multiple character

witnesses to testify on his behalf, including, his family members, friends, coworkers, and four

former students. Stone specifically alleges that these witnesses would have testified that Stone “is

a generally affectionate person who routinely hugs people and frequently tells them that he ‘loves’

them.” Brief for appellant at 15. He believes that this testimony would have negated testimony at

trial that H.W.’s mother observed a “suspicious amount of affection toward H.W.” by Stone. Id.

Upon our review, we agree with the district court that Stone is not entitled to an evidentiary

hearing on this claim. Stone cannot demonstrate that he was prejudiced by counsel’s failure to call

these unnamed witnesses. Testimony which established that Stone was generally an affectionate

person would not have any bearing on the specific allegations of sexual assault made by H.W. She

alleged that Stone pursued a relationship with her when she was only 14 years old and then had

sexual intercourse with her on multiple occasions over a 4-month period after she turned 15 years

old. These allegations go far beyond Stone hugging H.W. or telling her he loves her.

(iii) Stone’s Psychiatrist

Stone alleges that his trial counsel was ineffective in “neglect[ing] to call [his] psychiatrist

who would have testified that [Stone] has a ‘savior’ complex in which [he] feels the need to want

to save people from adverse situations.” Brief for appellant at 15. Stone alleges that the testimony

- 14 -

from his psychiatrist “would have nullified the State’s theory that [his] interest in H.W. stems from

a sexual attraction rather than a ‘savior’ complex.” Id. We do not agree with the implication of

Stone’s assertions that his psychiatrist’s testimony would have definitively changed the outcome

of the proceedings. Even if the jury believed that Stone had a “savior” complex, as he alleges, such

a belief would not necessarily have an effect on the jury’s decision about whether Stone sexually

assaulted H.W. In fact, as the district court suggested in its order, testimony from Stone’s

psychiatrist about his mental health problems could have had a negative impact on the jury. Stone

cannot demonstrate that he was prejudiced by counsel’s failure to call his psychiatrist to testify at

trial.

(iv) Independent Clinical Psychologist

Stone alleges that his trial counsel was ineffective in failing to identify and have testify

another clinical psychologist to refute the testimony of the State’s expert witness, Sturgis. Stone

first asserts that trial counsel should have “attempt[ed] to hire another expert to assist him in

understanding Dr. Sturgis’ claims and statistical data she relied on, or potentially, provide

testimony to refute the claims made by Dr. Sturgis.” Brief for appellant at 14.

We first reject Stone’s assertion that another expert would have assisted trial counsel in

cross-examining Sturgis regarding the bases of her opinions. As we discussed more thoroughly

above, counsel adequately cross-examined Sturgis. Stone does not allege how this

cross-examination would have been more effective given the advice of some other expert.

In addition, in assessing postconviction claims that trial counsel was ineffective in failing

to call a particular witness, the Supreme Court has upheld dismissal without an evidentiary hearing

where the motion did not include specific allegations regarding the testimony which the witness

would have given if called. For example, in State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009),

the defendant claimed that trial counsel was ineffective in failing to adduce the testimony of certain

witnesses. The Supreme Court affirmed dismissal of the postconviction claim without an

evidentiary hearing, reasoning that there was nothing in the postconviction motion or record to

indicate the nature of any exculpatory evidence which the witnesses would have given if called.

Similarly, in State v. Threet, 231 Neb. 809, 438 N.W.2d 746 (1989), disapproved on other grounds,

State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004), the court held that a postconviction

allegation that defense counsel was ineffective in failing to procure witnesses favorable to the

defendant was properly dismissed without an evidentiary hearing where the motion did not

specifically identify the witnesses or the nature of their testimony. Therein, the court stated that in

the absence of specific allegations in this regard, “a trial court need not conduct a discovery hearing

to determine if anywhere in this wide world there is some evidence favorable to defendant’s

position.” State v. Threet, 231 Neb. at 813, 438 N.W.2d 749.

Stone’s allegations are similarly lacking in specificity. He does not identify another expert

who would have testified in opposition to Sturgis’ opinions. Moreover, even if another expert had

testified and refuted some of Sturgis’ opinions, it does not follow that the jury would have

disregarded Sturgis’ opinions. The weight and credibility of an expert’s testimony are a question

for the trier of fact, and triers of fact are not required to take opinions of experts as binding upon

them. State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008).

- 15 -

Stone also alleges that trial counsel should have hired an expert who “could have provided

general testimony about [reactive attachment disorder], its symptoms, and how it may or may not

impact a person’s ability to remember and tell the truth.” Brief for appellant at 15.

At trial, the State called Beverly Patitz to testify. Patitz is a licensed mental health counselor

with experience treating children with reactive attachment disorder. Patitz has been H.W.’s treating

therapist since September 2015. As a part of her testimony, Patitz detailed not only the general

symptoms of children who suffer from reactive attachment disorder, but also detailed some of

H.W.’s specific symptoms. During trial counsel’s cross-examination of Patitz, he asked her about

H.W.’s propensity to lie as a result of her reactive attachment disorder diagnosis and probed

whether Patitz could believe H.W.’s claims about the sexual abuse, when she has lied about other

things.

Stone’s claims about trial counsel’s failure to call another witness to testify regarding

H.W.’s reactive attachment disorder diagnosis must fail both because he does not identify any

expert who would have refuted Patitz’ explanation of the disorder, nor does he allege how further

testimony from another expert witness would have in any way changed the outcome of the

proceedings.

(c) Failure to Properly Cross-Examine State’s Witnesses

(i) H.W.

Stone alleges that his trial counsel provided ineffective assistance when he failed to

adequately cross-examine H.W. Specifically, Stone alleges that trial counsel should have

cross-examined H.W. regarding her testimony that Stone had engaged in sexual conduct with her

on 120 occasions; her testimony that Stone had taken a photograph of her while he was straddling

her on his bed; her testimony that Stone first engaged in sexual penetration of her on her birthday

in September 2014; and evidence that H.W. was known to lie when she felt pressured by her

parents. Stone generally alleges that had his trial counsel cross-examined H.W. on these topics,

H.W.’s credibility would have been “substantially undermined” and the jury would have had doubt

regarding the reliability of H.W.’s account of the sexual assaults. Brief for appellant at 22. We will

discuss each of these allegations in turn.

(ii) Number of Times H.W. Was Assaulted

During trial counsel’s cross-examination of H.W. he asked her to provide her “best

estimate” of the number of times she had penile/vaginal intercourse with Stone from August 2014

through February 2015. H.W. responded, “Roughly, by the math that I remember, that over

roughly 120 times.” In his motion for postconviction relief and in this appeal, Stone alleges that

his trial counsel “was in possession of evidence which established that there were only

approximately 20 days between September 24, 2014 and February 7, 2015 in which [Stone] and

H.W. were both [in town] and [Stone’s wife] was not [in town].” Brief for appellant at 22. Stone

alleges that such evidence would have contradicted H.W.’s testimony regarding the number of

sexual encounters between her and Stone. He further alleges that such evidence would have

undermined H.W.’s credibility with the jury.

- 16 -

We find that Stone is not entitled to an evidentiary hearing on this allegation. First, Stone

has failed to allege what “evidence” counsel was in possession of which would have established

that there were only 20 days in which H.W. and Stone could have engaged in sexual contact

undetected by Stone’s wife. Moreover, trial counsel did question Stone about the number of days

he and his wife were in town from September 2014 through February 2015. Stone’s testimony

established that, contrary to his postconviction assertion, he was in town for more than 20 days

without his wife being present during the 5 months H.W. alleged the sexual abuse occurred. Stone

testified that he was in Colorado for 1 week during October 2014, that he would visit his wife in

Kansas every other weekend, and that he was gone the entire month of January 2015. Based on

this testimony, it is reasonable to conclude that other than the dates specified, Stone was in town

with H.W. outside the presence of his wife.

In addition, we note that trial counsel did otherwise question H.W.’s credibility. In fact,

during H.W.’s testimony, she repeatedly admitted that she had previously lied about certain facts

during her interviews with police and with professionals at the Child Advocacy Center. H.W.’s

mother testified that H.W. had gotten in trouble at school for lying and H.W.’s therapist testified

that H.W. has been known to lie and be manipulative. Given all of the other evidence presented to

the jury regarding H.W.’s credibility, we do not find that trial counsel’s failure to challenge H.W.’s

somewhat inexact testimony that she had sexual intercourse with Stone on 120 occasions would

have in any way changed the outcome of the trial. This is especially true considering that the jury

was only asked to determine whether Stone had sexual intercourse with H.W. on five separate

occasions, as charged in the amended information.

(iii) Photograph Taken by Stone

At trial, H.W. testified that one of the photographs which depicted her naked under a sheet

in Stone’s bed was taken by Stone after they had had sexual intercourse and while Stone was

straddling her. In his motion for postconviction relief and in this appeal, Stone alleges that his trial

counsel provided ineffective assistance when he failed “to confront H.W. with the fact that H.W.

previously claimed, during her July 5, 2015 [Child Advocacy Center] interview, that [Stone] only

took one picture of her and this picture depicted H.W. wearing her bra and underwear.” Brief for

appellant at 22. Stone further alleges that had counsel questioned H.W. on this topic, “it would

have cast serious doubt on whether [Stone] took [that particular] photo.” Id.

Upon our review, we conclude that Stone is not entitled to an evidentiary hearing on this

ground. Whether Stone actually took this photograph or exactly where he was positioned when he

did so, was not an element of his charged offenses. As such, counsel’s failure to challenge H.W.’s

testimony on that specific fact would not have changed the ultimate outcome of the trial. This is

especially true considering that trial counsel put H.W.’s credibility at issue during his

cross-examination and during his examination of other witnesses. The jury still believed H.W.’s

testimony that Stone sexually assaulted her on numerous occasions. Additionally, even if trial

counsel had further questioned H.W.’s testimony about this particular photograph, evidence that

the photograph was found on Stone’s electronic devices along with evidence of other inappropriate

photographs of H.W. in Stone’s possession would remain unchanged and unexplained.

- 17 -

(iv) Inconsistencies Between H.W.’s Prior

Interviews and Trial Testimony

At trial, H.W. testified that the first time she and Stone had sexual intercourse was on her

birthday, September 24, 2014. In his motion for postconviction relief and in this appeal, Stone

alleges that his trial counsel was ineffective for failing to cross-examine H.W. regarding prior

inconsistent statements she made about the first time she and Stone had sexual intercourse. The

record refutes Stone’s claim.

During trial counsel’s cross-examination of H.W., he questioned her at length regarding

false statements she made during interviews she gave prior to trial, including false statements about

“when [H.W.] said the sexual encounters started and for how long they continued.” The following

colloquy occurred:

Q: You originally said that the activity that you were there to complain about started

about October 1st and it went through February 28th?

A: Correct.

Q: And we’ll get into the details of what you said. But you knew when you said

that that that wasn’t true, correct?

A: Yes.

Q: And you indicated -- or did you indicate at that time that the first incident of

inappropriate contact between you and Mr. Stone was an event in October in which he

kissed you?

A: Correct.

Q: And you told them at that time that the last event that could have happened was

something that happened in connection with the conference on February 7th?

A: Yes.

Q: And you knew just for purposes of our discussion today that those dates and

those events were incorrect?

A: Yes.

Q: And tell me if I have this right. If I don’t, let me know. It’s only after law

enforcement came to you following their investigation and confronted you about problems

with your timeline, problems with the dates, problems with other evidence not fitting with

your claim that you changed your story, right?

A: Right.

Because trial counsel did cross-examine H.W. regarding prior inconsistent statements she

made about when the sexual contact between her and Stone began, Stone is not entitled to an

evidentiary hearing on this ground.

(v) H.W.’s Tendency to Lie When Feeling

Pressure From Her Parents

Stone alleges that his trial counsel was in possession of evidence that established H.W. had

a tendency to lie when feeling pressure from her parents. He also alleges that his trial counsel was

in possession of evidence that H.W. felt pressure from her mother to admit to an inappropriate

- 18 -

sexual relationship with Stone. Specifically, he alleges that H.W.’s mother repeatedly “press[ed]”

H.W. about her relationship with Stone until H.W. eventually admitted that she and Stone had been

involved in a sexual relationship. Brief for appellant at 23. We conclude that Stone is not entitled

to an evidentiary hearing on this ground.

Stone’s trial counsel cross-examined H.W. regarding her initial disclosure of the sexual

assault to someone other than her mother. H.W. explained that she disclosed at that time because

she “was struggling with things on my own and making really bad decisions about the things that

have happened and taking my anger out on people, and it was finally to the point where I couldn’t

take it anymore.” H.W. indicated that after this initial disclosure, she brought up the subject with

her mother. Stone does not allege what evidence trial counsel possessed which would have refuted

H.W.’s explanation regarding her initial disclosure or which would have demonstrated that the

disclosure was the result of pressure from her mother. Moreover, as we discussed above, there was

a great deal of information regarding H.W.’s tendency to lie and manipulate. Despite all of this

evidence, the jury believed H.W.’s testimony regarding the sexual assaults. Stone offers nothing

specific to suggest that the result of the proceeding would have been different had trial counsel

offered any additional evidence regarding H.W.’s tendency to lie, especially to her parents.

(vi) H.W.’s Mother

Stone alleges that his trial counsel provided ineffective assistance when he failed to

adequately cross-examine H.W.’s mother, Lynne. Specifically, Stone alleges that trial counsel

should have more thoroughly questioned Lynne regarding her statement that Stone rarely

communicated with her about the schoolwork he was assisting H.W. with during his homeschool

sessions. Stone argues that had trial counsel confronted Lynne with evidence that she and Stone

did, in fact, communicate about homeschooling, that “it would have established that [Stone] had a

genuine and sincere interest in assisting H.W. with her schooling as opposed to the State’s theory

that [Stone] was grooming H.W. and using the home-schooling in an attempt to sexually assault

H.W.” Brief for appellant at 25.

We agree with the district court that Stone was not entitled to an evidentiary hearing on

this allegation. Stone cannot show that counsel’s failure to question Lynne further about her

specific communications with Stone regarding homeschooling H.W. had any bearing on the jury’s

decision to find Stone guilty of the charged offenses. Stone’s interest and actions in assisting H.W.

with her school work do not necessarily correlate with whether he sexually assaulted H.W. In fact,

based upon the testimony of both Lynne and H.W., Stone was actively engaged in homeschooling

H.W., and both Lynne and H.W. were initially appreciative of his efforts in this regard. However,

H.W. testified that while Stone was homeschooling her, he was also sexually abusing her. Even if

Stone’s counsel went to greater lengths to point out that Stone was actively engaged in

homeschooling H.W., there is nothing to indicate that such cross-examination would have changed

the results of the proceedings.

Stone also alleges that his trial counsel should have questioned Lynne further regarding

“her extremely positive perception” of him and “his efforts to assist in educating H.W.” Brief for

appellant at 25. Stone argues that had trial counsel elicited such testimony, it would have

- 19 -

demonstrated that Lynne encouraged his continued contact with H.W. and explained the amount

of time he spent with H.W.

Again, we find that the district court did not err in denying Stone an evidentiary hearing on

this ground because Stone’s assertion is refuted by the record. Lynne testified at trial that when

Stone initially offered to assist with H.W.’s homeschooling, she was very appreciative. In fact,

text messages between Stone and Lynne which were received into evidence reflected Lynne’s

initial appreciation and positive feelings toward Stone. Lynne indicated during her testimony that

after a while, she began to have concerns about Stone and H.W.’s relationship. Clearly, though,

she continued to allow Stone and H.W. to be alone together through the first part of 2015, despite

her concerns. An email from Lynne to Stone dated January 13, 2015, indicates that Lynne told

Stone that she still believed Stone was a positive influence in H.W.’s life. Given all of the evidence

which established that Lynne, initially, had a very positive perception of Stone, including Lynne’s

own admissions to such, trial counsel was not ineffective in failing to further question Lynne on

this topic.

(vii) Forensic Expert

During the State’s direct examination of its forensic computer expert, it elicited testimony

regarding the inappropriate photographs of H.W. which appear to have been taken while H.W. was

in Stone’s bed. Such testimony included an explanation of what the data showed about the date

and time the pictures were taken, where the pictures were taken, and the device used to take the

pictures.

On appeal, Stone alleges that his trial counsel provided ineffective assistance when he

failed to properly cross-examine the State’s forensic computer expert. Stone asserts that the State’s

expert “neglected to properly make a forensic copy of the hard drive of [his] laptop prior to hooking

the laptop up to computer extraction software [and that a]s a result, the hard drive of [Stone’s] lap

top computer was corrupted[.]” Brief for appellant at 15. He further alleges that his counsel should

have questioned the State’s expert regarding whether the corruption of the laptop altered the date

and time stamps of the photographs taken of H.W., which would have “cast serious doubt as to

[Stone’s] guilt.” Id.

The record refutes Stone’s claim of ineffective assistance of counsel. While trial counsel

chose not to cross-examine the State’s forensic computer expert, counsel did call another forensic

computer expert to testify on Stone’s behalf. The defense’s expert testified that he worked closely

with the State’s expert and had access to all of the pertinent information regarding Stone’s

electronic devices. Trial counsel questioned the defense’s expert at length about inconsistencies in

the data and about what those inconsistencies may mean. Ultimately, however, the defense’s expert

agreed with the State’s expert about the date, time, and location each photograph was taken: “[T]he

dates don’t lie.”

The record reveals that trial counsel adequately addressed the testimony of the State’s

forensic computer expert by calling a separate expert to testify on Stone’s behalf. Because the

defense’s expert agreed with the State’s expert regarding the timing of the photographs, there

would have been nothing to gain by counsel cross-examining the State’s expert on this topic.

Counsel did not provide ineffective assistance in this regard.

- 20 -

(d) Failure to Object to Certain Evidence

(i) Sonogram Evidence

During Stone’s trial testimony, he testified that he told law enforcement that H.W. had sent

him an email telling him that she was pregnant and that attached to this email was an image from

a sonogram to prove the pregnancy. Stone also testified that he told law enforcement that he still

had the sonogram image saved on his computer. The State’s forensic computer expert located an

image of a sonogram on two of Stone’s electronic devices; however, the image indicated that it

did not belong to H.W., but to another woman. A law enforcement officer testified that he

subsequently identified and contacted the woman identified on the sonogram image. The officer

testified he had a telephone conversation with this woman and learned that she is an acquaintance

of Stone. During his testimony, Stone acknowledged that the sonogram image from his

acquaintance was the only sonogram image located on his electronic devices and that one of his

friends had sent him that image. He opined that H.W. had obtained a copy of the sonogram image

when she had access to his electronic devices and then attached it to the email she sent to him.

On appeal, Stone alleges that his trial counsel provided ineffective assistance when he

failed to object to the evidence of the sonogram image. Specifically, Stone alleges that counsel

should have objected on the basis of hearsay and foundation to the law enforcement officer’s

testimony that he had a telephone conversation with the woman identified on the sonogram image

and that he subsequently learned that the woman was acquainted with Stone. Stone argues, “By

failing to object to this inadmissible evidence, the jury was allowed to conclude that the sonogram

found on [Stone’s] laptop computer came from an acquaintance of [Stone] rather than H.W.” Brief

for appellant at 28.

Stone is not entitled to an evidentiary hearing on this ground. Even if counsel should have

made an objection to the hearsay testimony of the law enforcement officer regarding the sonogram

evidence, Stone cannot demonstrate that he was prejudiced by counsel’s failure. While Stone

contends that the officer’s testimony provided the jury with an inaccurate representation that the

sonogram image originated from someone other than H.W., the record reveals that such a

representation is, in fact, accurate. Stone, himself, testified that he originally received the

sonogram image from a friend of his, not from H.W. Stone then guessed that H.W. had found the

sonogram image on his electronic device and re-sent it to him along with her email. As such, it

was Stone, and not the law enforcement officer, who told the jury exactly how Stone originally

received the sonogram image. The officer’s unobjected to testimony did not provide any additional

facts regarding the discussion of the sonogram image which were prejudicial to Stone.

(ii) Testimony of State’s Rebuttal Witness

At trial, the State called Dr. Stacie Bleicher, a pediatrician and medical director of the Child

Advocacy Center in Lincoln, Nebraska, to testify. Bleicher examined H.W. after H.W. had

disclosed that she had been sexually abused. The examination revealed that H.W. had a

“normal-appearing” hymen. However, Bleicher explained that a “normal” examination of genitalia

does not necessarily indicate that no sexual assault has occurred.

During the defense’s case-in-chief, Stone called his own medical expert to testify. Dr.

Angela Grone is an obstetrician and gynecologist employed by the Beatrice Community Hospital.

- 21 -

She opined that H.W.’s hymen would no longer be intact, or “normal,” if in fact she had sexual

intercourse with Stone on a regular basis, as H.W. had alleged. Grone did concede that she is not

a sexual assault examiner and she has no specialized training in the area of sexual assault.

During the State’s rebuttal, it called a third medical professional, forensic nurse examiner

Annie Boatright. Boatright testified that she has seen at least 300 patients who required a sexual

assault examination. She opined that a woman can have digital or penile penetration without injury

to her hymen, especially if the penetration was consensual. Upon specific questioning by the State,

Boatright indicated that a woman can have a “normal” hymen and have had intercourse more than

100 times. In addition, Boatright explained that the vaginal area heals very quickly, so if the hymen

was injured during intercourse, that injury could heal within days to weeks. Boatright also testified

about her understanding of a peer-reviewed article entitled, “Normal Doesn’t Mean Nothing

Happened.” According to Boatright, this research article followed 36 females who had been

sexually active and had become pregnant. Only 2 of the females who participated in the study were

identified as having a visible injury in their vaginal area. The other 34 participants had normal

vaginal areas.

On appeal, Stone alleges that his trial counsel provided ineffective assistance in failing to

object to Boatright’s testimony. Specifically, Stone alleges that counsel failed to make a

foundational objection regarding Boatright’s testimony about the peer-reviewed article; failed “to

confront Ms. Boatright with the fact that her testimony misrepresented the findings described in

the article;” and failed to confront Boatright with more recent scientific information, given that the

article was published in 2004. Brief for appellant at 27.

We find that Stone was not entitled to an evidentiary hearing on this ground. Stone makes

only conclusory allegations. He does not assert what foundation was lacking for Boatright’s

testimony. He also does not explain exactly how Boatright misrepresented the findings from the

article. And, he does not explain what new research has been conducted since the article was

written in 2004 or how that new research may have affected Boatright’s opinion.

Moreover, we note that the peer-reviewed article was not brought up until the State’s

redirect of Boatright. The majority of Boatright’s testimony was based upon her personal

experiences as a forensic nurse examiner. Given the small role the peer-reviewed article played in

Boatright’s testimony, we cannot find it likely that the result of the proceedings would have been

different had trial counsel objected to Boatright’s discussion of the article or further

cross-examined her on the article’s contents. We affirm the decision of the district court to deny

Stone an evidentiary hearing on this ground.

(e) Failure to Ensure Sufficient Time for Jury Trial

Trial in this case began on Monday, June 20, 2016. On Friday, June 24, 2016, the

presentation of evidence was nearing a close. That morning, the judge had the following discussion

with the jury:

Good morning, ladies and gentlemen. I understand you have come to an agreement that

you would prefer to push through the rest of this evening and, if necessary, come back in

the morning. You also told the bailiff that you don’t want anyone to think that their case

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should be rushed. You want to give the defendant sufficient time. And I am seeing nods of

heads. So I appreciate that very much.

The evidence concluded on Friday evening. The jury and all of the parties returned on Saturday,

and the case was submitted to the jury at 1 p.m. The jury returned its verdict at 7:01 p.m. that same

day.

On appeal, Stone alleges first that he was denied his constitutional right to due process

because he was not provided with sufficient time to present the “complicated” case to the jury.

Brief for appellant at 29. However, as the State argues in its brief, Stone is precluded from raising

this argument for the first time during these postconviction proceedings because he could have

raised this argument on direct appeal. It is well established that a petition for postconviction relief

may not be used to obtain review of issues that were or could have been reviewed on direct appeal.

State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).

Stone next alleges that he received ineffective assistance of counsel when counsel failed to

request additional time to present the case to the jury. “The compressed format of [Stone]’s jury

trial resulted in significant fatigue on the part of the trial judge, the attorneys, and the jury.” Brief

for appellant at 29. In the district court’s order denying Stone’s motion for postconviction relief,

it stated:

In regard to the claim that the Court, jury and witnesses appeared tired, the Court notes that

this is not particularly unusual for a week-long trial; further, the jury was asked whether

they wished to recess for the weekend and it chose to continue to work on a Saturday. This

certainly does not rise to an inference that another trial would result in a different verdict.

We agree with the district court that Stone was not entitled to an evidentiary hearing on

this claim of ineffective assistance. Stone has failed to provide sufficient evidence to demonstrate

that he was in any way prejudiced by the length of the trial. He does not allege what other witnesses

he would have called to testify or what other evidence he would have offered had there been

additional time set aside for the trial. Moreover, the record reveals that not only did the jury choose

to return to court on a Saturday in an effort to reach a verdict, but the jury also specifically informed

the court and the parties that it did not want Stone to feel rushed in his presentation of the evidence.

Stone has not explained how the result of the proceedings would have been different had the trial

been allowed to extend into the following week.

3. ON DIRECT APPEAL

(a) Failure to Properly Preserve Constitutional

Issue for Appellate Review

In Stone’s direct appeal, his counsel argued that the mandatory minimum sentencing

scheme of Neb. Rev. Stat. § 28-319.01 (Reissue 2016), violated the Equal Protection Clauses of

the U.S. and Nebraska Constitutions by treating Stone more harshly than younger offenders. State

v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017) Specifically, counsel argued that had Stone been

19-24 years old, rather than 58 years old, at the time of his crimes, he would have been convicted

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of Class II felonies rather than Class IB felonies. Id. And, as a result, he would not have been

subject to a 15-year mandatory minimum term of imprisonment. Id.

However, the Supreme Court determined that Stone’s constitutional argument was not

preserved for appellate review. Id. The court determined that the challenge to the sentencing

scheme was a facial challenge, rather than an as applied challenge. Id. As such, Stone’s counsel

was required to have filed a motion to quash at the trial court level in order to preserve his

constitutional challenge. Id. Because counsel did not file a motion to quash, the Supreme Court

found that the constitutional argument had been waived. Id.

In his motion for postconviction relief and in this appeal, Stone claims his counsel provided

ineffective assistance because he failed to properly preserve his constitutional argument for

appellate review. Upon our review, we find that counsel did not provide deficient performance

even though he failed to properly preserve Stone’s constitutional claim for appellate review.

Stone’s claim that § 28-319.01 violated the Equal Protection Clause constitutes a novel

constitutional challenge. In State v. Sanders, 289 Neb. 335, 855 N.W.2d 350 (2014), the Supreme

Court concluded that a claim of ineffective assistance of counsel fails the first prong of the

Strickland test where prior counsel is alleged to be deficient for failing to raise novel legal theories

or constitutional challenges. The court stated: “It logically follows, and we now conclude, that

counsel’s failure to raise novel legal theories or arguments or to make novel constitutional

challenges in order to bring a change in existing law does not constitute deficient performance.”

State v. Sanders, 289 Neb. at 343, 855 N.W.2d at 357. Therefore, trial counsel’s performance on

this issue cannot be considered deficient.

Even if counsel’s performance could be considered deficient, Stone cannot demonstrate

that he was prejudiced by trial counsel’s performance. See State v. McGhee, 280 Neb. 558, 787

N.W.2d 700 (2010). In order to demonstrate prejudice, Stone must show that if counsel had

properly preserved the constitutional claim for appellate review, that there is a reasonable

probability that it would have changed the result of the appeal. See State v. Timmens, 282 Neb.

787, 805 N.W.2d 704 (2011).

In his motion for postconviction relief and in this appeal, Stone has failed to allege

sufficient facts to demonstrate that he was prejudiced by counsel’s failure to properly preserve the

constitutional claim. Specifically, Stone has failed to provide any evidence or case law which

would indicate his constitutional claim would have been successful had it been properly preserved.

We note that Stone cited no case authorities in support of his equal protection claim in his brief

submitted on direct appeal. Our research has also failed to reveal a case directly on point.

However, in a recent case, the Supreme Court did address a similar constitutional

argument. In State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019), the appellant argued that

§ 28-319.01 is unconstitutional on its face because it warrants the imposition of a substantially

harsher sentence than other first degree sexual assault statutes solely based on the ages of the

victim and the offender. In Hibler, the court focused its analysis on the appellant’s claims as they

related to the victim’s age, rather than as they related to the defendant’s age. The court concluded

that the age classifications to which the appellant was subject to in § 28-319.01(1)(a) are rationally

related to plausible policy reasons considered by lawmakers and that the relationship of the

classifications to their goals are not so attenuated as to render the distinction arbitrary or irrational.

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The court explained, “As the legislative history showed, based on the policy, goals, and facts

evinced therein, the Legislature required more severe punishments for first degree sexual assault

of a young child, because it concluded it was a more serious crime.” Id. at 343, 923 N.W.2d at

414.

Given the Supreme Court’s decision in State v. Hibler, supra, finding that § 28-319.01 is

constitutional even though it establishes different punishments based upon the age of the victim of

the sexual assault, it seems likely that the Supreme Court would make a similar determination

when analyzing the same claim based upon the age of the perpetrator of the sexual assault.

Accordingly, Stone did not show he was prejudiced in any way by counsel’s performance in this

regard.

(b) Failure to Challenge District Court’s Decision to Sustain

State’s Motion to Quash H.W.’s School Records

In the days leading up to the trial, Stone’s counsel subpoenaed certain records from Thayer

County Public Schools regarding H.W. The State filed a motion to quash the subpoena, and the

court determined that it would review the records “in-camera” in order to determine their relevance

and admissibility. Both Stone and the State appear to agree that the court’s ultimate resolution of

the motion to quash is not clear from the record; however, it is clear from the record that the school

records were never offered into evidence by Stone.

In this appeal, Stone alleges that his appellate counsel was ineffective for failing to allege

on appeal that the district court erred in sustaining the State’s motion to quash the school records.

We find that Stone is not entitled to an evidentiary hearing on this ground. First, we note that, as

the parties agree, the district court’s ruling on the motion to quash is not clear from the record. As

such, it is not clear what ruling appellate counsel would have challenged in Stone’s direct appeal.

Nonetheless, assuming that the district court did sustain the motion to quash, Stone has failed to

allege any error in the district court’s decision. Further, he does not assert that had appellate

counsel raised this issue on direct appeal, counsel would have been successful.

For the foregoing reasons, we conclude that the district court did not err in denying Stone an evidentiary hearing on allegations that his counsel was ineffective in matters related to pretrial motions and investigation, trial proceedings, and direct appeal. We affirm the district court’s denial of postconviction relief without an evidentiary hearing.