State of Nebraska v. Ivell M. Hagens

Omaha, Nebraska, first degree sexual assault of a child, a Class IB felony 1; incest

with a person under age 18, a Class IIA felony 2; and tampering with physical evidence.



1. Convictions: Appeal and Error. In an appeal of a criminal convic -

tion, an appellate court reviews the evidence in a light most favorable

to the prosecution.



2. Convictions: Evidence: Appeal and Error. In reviewing a criminal

conviction for sufficiency of the evidence, whether the evidence is

direct, circumstantial, or a combination thereof, the standard is the

same: An appellate court does not resolve conflicts in the evidence,

pass on the credibility of witnesses, or reweigh the evidence; such mat -

ters are for the finder of fact. The relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.



3. Rules of Evidence: Hearsay: Appeal and Error. Hearsay is not

admissible except as provided by the Nebraska Evidence Rules. Apart

from rulings under the residual hearsay exception, an appellate court

reviews for clear error the factual findings underpinning a trial court's

hearsay ruling and reviews de novo the court's ultimate determination

to admit evidence over a hearsay objection or exclude evidence on

hearsay grounds.



4. Appeal and Error. In a de novo review, an appellate court reaches a

conclusion independent of the trial court.



5. Hearsay: Words and Phrases. Hearsay is a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.



6. Evidence: Words and Phrases. Cumulative evidence means evi -

dence tending to prove the same point to which other evidence has

been offered.



7. Trial: Convictions: Evidence: Appeal and Error. Where the evidence

is cumulative and there is other competent evidence to support the con -

viction, the improper admission or exclusion of evidence is harmless

beyond a reasonable doubt.



8. Appeal and Error. An appellate court is not obligated to engage in an

analysis that is not needed to adjudicate the controversy before it.



9. ____. Plain error may be found on appeal when an error unasserted or

uncomplained of at trial, but plainly evident from the record, prejudi -

cially affects a litigant's substantial right and, if uncorrected, would

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

process. Generally, an appellate court will find plain error only when a

miscarriage of justice would otherwise occur.



10. Motions for Mistrial: Prosecuting Attorneys: Appeal and Error. A

party who fails to make a timely motion for mistrial based on prosecuto -

rial misconduct forfeits the right to assert on appeal that the court erred

in not declaring a mistrial due to such prosecutorial misconduct.



11. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant

has not preserved a claim of prosecutorial misconduct for direct appeal,

an appellate court will review the record only for plain error.



12. Sentences: Appeal and Error. An appellate court will not disturb a sen-

tence imposed within the statutory limits absent an abuse of discretion

by the trial court.



13. Judgments: Words and Phrases. An abuse of discretion occurs when a

trial court's decision is based upon reasons that are untenable or unrea -

sonable or if its action is clearly against justice or conscience, reason,

and evidence.



14. Sentences. The appropriateness of a sentence is necessarily a subjec-

tive judgment that includes the sentencing judge's observations of the

defendant's demeanor and attitude and all the facts and circumstances

surrounding the defendant's life.



15. Sentences: Appeal and Error. It is not the proper function of an appel-

late court to conduct a de novo review of the record to determine what

sentence it would impose.



16. Effectiveness of Counsel: Postconviction: Records: Appeal and

Error. When a defendant's trial counsel is different from his or her

counsel on direct appeal, the defendant must raise on direct appeal any

issue of trial counsel's ineffective performance which is known to the

defendant or is apparent from the record; otherwise, the issue will be

procedurally barred in a subsequent postconviction proceeding.



17. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-

fective assistance of trial counsel may be determined on direct appeal is

a question of law.



18. ____: ____. In reviewing claims of ineffective assistance of counsel on

direct appeal, an appellate court decides only whether the undisputed

facts contained within the record are sufficient to conclusively deter -

mine whether counsel did or did not provide effective assistance and

whether the defendant was or was not prejudiced by counsel's alleged

deficient performance.



19. Effectiveness of Counsel: Proof. Generally, 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.



20. ____: ____. To show that counsel's performance was deficient, a defend-

ant must show that counsel's performance did not equal that of a lawyer

with ordinary training and skill in criminal law.



21. ____: ____. To show prejudice in a claim of ineffective assistance of

counsel, the defendant must demonstrate a reasonable probability that

but for counsel's deficient performance, the result of the proceeding

would have been different.



22. Effectiveness of Counsel: Words and Phrases. A reasonable probabil-

ity of prejudice from ineffective assistance of counsel is a probability

sufficient to undermine confidence in the outcome.



23. Effectiveness of Counsel: Presumptions: Appeal and Error. There

is a strong presumption that counsel acted reasonably, and an appellate

court will not second-guess reasonable strategic decisions.



24. Effectiveness of Counsel: Postconviction: Records: Appeal and

Error. An ineffective assistance of counsel claim is raised on direct

appeal when the claim alleges deficient performance with enough par-

ticularity 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 recognize whether

the claim was brought before the appellate court.



25. Effectiveness of Counsel: Records: Appeal and Error. The fact that

an ineffective assistance of counsel claim is raised on direct appeal

does not necessarily mean that it can be resolved. The determin -

ing factor is whether the record is sufficient to adequately review

the issue.



26. ____: ____: ____. The record on appeal is sufficient to effectively

review the question of ineffective assistance if it establishes either that

trial counsel's performance was not deficient, that the appellant will not

be able to establish prejudice, or that trial counsel's actions could not be

justified as a part of any plausible trial strategy.



27. Effectiveness of Counsel: Appeal and Error. Assignments of error

on direct appeal regarding ineffective assistance of trial coun -

sel must specifically allege deficient performance, and an appel -

late court will not scour the remainder of the brief in search of

such specificity.

The Defendant was found guilty.



Affirmed