State v. Loding , 296 Neb. 670 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/14/2017 09:11 AM CDT
- 670 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670State of Nebraska, appellee, v.
Bashir V. Loding, appellant.
___ N.W.2d ___
Filed May 12, 2017. No. S-16-614.
1. 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.
2. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only questions of law: Are the
undisputed facts contained within the record sufficient to conclusively
determine whether counsel did or did not provide effective assistance
and whether the defendant was or was not prejudiced by counsel’s
alleged deficient performance?
3. Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
dence claim, whether the evidence is direct, circumstantial, or a com-
bination 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 matters are for the finder of fact.
4. 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.
5. Judgments: Appeal and Error. 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.
6. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant 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.
7. 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
- 671 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670particularity 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 will recognize
whether the claim was brought before the appellate court.
8. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
9. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
To establish a right to postconviction relief because of counsel’s inef-
fective assistance, the defendant has the burden, in accordance with
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), to show that counsel’s performance was deficient; that is,
counsel’s performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law. Next, the defendant must show that coun-
sel’s deficient performance prejudiced the defense in his or her case. To
show prejudice, the defendant must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the proceeding
would have been different. A court may address the two prongs of this
test, deficient performance and prejudice, in either order.
10. Statutes: Rules of the Supreme Court. Just as statutes relating to
the same subject are in pari materia and should be construed together,
Nebraska Supreme Court rules should be read and construed together.
11. Attorneys at Law. A passing score on the Multistate Professional
Responsibility Examination is a substantive requirement for admittance
to the Nebraska bar.
12. Attorneys at Law: Disciplinary Proceedings. Violations of the stan-
dards and rules of professional conduct can subject an attorney to disci-
plinary proceedings.
13. Attorneys at Law: Effectiveness of Counsel. An applicant for admit-
tance to the Nebraska bar who has demonstrated that he or she lacks the
required knowledge of his or her ethical obligations is incompetent to
act as counsel.
14. Attorneys at Law: Words and Phrases. A nonlawyer is any person
not duly licensed or otherwise authorized to practice law in the State
of Nebraska.
15. Attorneys at Law: Rules of the Supreme Court. The Nebraska
Supreme Court rules do not allow a nonlawyer to engage in the practice
of law.
16. Attorneys at Law: Disciplinary Proceedings. Because the Nebraska
Supreme Court regards the unauthorized practice of law as a serious
offense, any unauthorized practice is a nullity.
17. Constitutional Law: Right to Counsel. A complete denial of assistance
of counsel is a per se violation of a defendant’s right to counsel.
- 672 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 67018. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error.
When reviewing claims of ineffective assistance, an appellate court will
not second-guess a trial counsel’s reasonable strategic decisions. An
appellate court must assess the trial counsel’s performance from the
counsel’s perspective when the counsel provided the assistance.
19. Trial: Attorneys at Law. Defense counsel are not deficient for failing to
defeat their own legitimate defense theory.
20. Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
dence claim, an appellate court does not pass on the credibility of wit-
nesses. The relevant question for an appellate court 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.
21. Indictments and Informations: Evidence: Time. The State can pre­
sent evidence of several violations within a specific timeframe to secure
one conviction.
22. Sentences: Appeal and Error. In reviewing a sentence imposed within
the statutory limits, an appellate court considers whether the sentenc-
ing court abused its discretion in considering and applying the relevant
factors as well as any applicable legal principles in determining the
sentence to be imposed.
23. Sentences. When imposing a sentence, the sentencing court is to con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense and (8) the amount of violence
involved in the commission of the crime.
24. ____. Traditionally, a sentencing court is accorded very wide discretion
in determining an appropriate sentence.
Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, W.
Patrick Dunn, and Andrew J.K. Johnson for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
H eavican, C.J., Wright, M iller-Lerman, Cassel, Stacy,
and Funke, JJ.
- 673 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670Per Curiam.
I. INTRODUCTION
In this direct appeal, Bashir V. Loding challenges his convic-
tion for first degree sexual assault of a child. He alleges that he
received ineffective assistance of counsel, that there was insuf-
ficient evidence to support his conviction, and that he received
an excessive sentence. He presents one issue of first impres-
sion: whether representation by a former senior certified law
student, who was not yet an admitted member of the Nebraska
bar, although accompanied by an admitted lawyer, constitutes
per se ineffective assistance of counsel. We conclude that it
does not. The record is insufficient to address two claims of
ineffective assistance. Because we find no merit in Loding’s
other claims, we affirm the judgment of the district court.
II. BACKGROUND
Loding was charged with first degree sexual assault of a
child. The information filed alleged that on or about May 1
through September 17, 2015, Loding, a man at least 19 years
old or older, subjected A.B., a child less than 12 years old, to
sexual penetration.
1. Evidence at Trial
Trial was held in April 2016, at which A.B. testified that she
was born in 2006 and lived in Douglas County, Nebraska. She
testified that Loding was her mother’s friend and that he was
43 years old. She testified that Loding would visit her home
and that beginning in May 2015, he penetrated her anus with
his penis on multiple occasions. He also penetrated her anus
and vagina with his fingers on multiple occasions. She was
able to describe events in detail, what his penis looked like,
and how after he penetrated her anus, “sometimes [her] pee
would be brown.” Her older sister corroborated her testimony
and confirmed that Loding had access to A.B. without her
mother’s direct supervision.
Several expert witnesses testified as to A.B.’s initial dis-
closure and explained that her allegations were consistent
- 674 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670with her testimony and not unusual for child victims of
sexual assault.
Loding did not testify in his own behalf or call any
witnesses.
2. Conviction and Sentence
The jury convicted Loding of first degree sexual assault of
a child, and the district court sentenced Loding to 35 to 50
years’ imprisonment with credit for 129 days served.
Loding timely appealed, and we granted the State’s petition
to bypass review by the Nebraska Court of Appeals.
III. ASSIGNMENTS OF ERROR
Loding assigns, reordered and restated, that (1) he received
ineffective assistance of counsel when (a) a former senior cer-
tified law student, who was not yet an admitted member of the
Nebraska bar, participated in critical stages of the proceedings,
(b) he did not validly consent to representation by a certified
law student, and (c) trial counsel made prejudicial remarks
during opening statement and closing argument; (2) there was
insufficient evidence to sustain a guilty verdict; and (3) his
sentence was excessive.
IV. STANDARD OF REVIEW
[1,2] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law.1 In reviewing claims of ineffective assistance of counsel
on direct appeal, an appellate court decides only questions of
law: Are the undisputed facts contained within the record suf-
ficient to conclusively determine whether counsel did or did
not provide effective assistance and whether the d­efendant
was or was not prejudiced by counsel’s alleged deficient
performance?2
1
State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
2
Id.- 675 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670[3] In reviewing a sufficiency of the evidence claim, 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 matters are for the finder
of fact.3
[4,5] We will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial court.4
An abuse of discretion occurs when a trial court’s decision
is based upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason,
and evidence.5
V. ANALYSIS
1. Ineffective Assistance
of Counsel
[6,7] Loding is represented on direct appeal by different
counsel than the counsel who represented him at trial. 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.6 An inef-
fective assistance of counsel claim is raised on direct appeal
when the claim alleges deficient performance with enough
particularity for (1) an appellate court to make a determina-
tion of whether the claim can be decided upon the trial record
and (2) a district court later reviewing a petition for postcon-
viction relief will recognize whether the claim was brought
before the appellate court.7
3
State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016).
4
Id.5
Id.6
See State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
7
See id.- 676 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670[8] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that
it can be resolved.8 The determining factor is whether the
record is sufficient to adequately review the question.9
[9] To establish a right to postconviction relief because of
counsel’s ineffective assistance, the defendant has the burden,
in accordance with Strickland v. Washington,10 to show that
counsel’s performance was deficient; that is, counsel’s per­
formance did not equal that of a lawyer with ordinary training
and skill in criminal law.11 Next, the defendant must show that
counsel’s deficient performance prejudiced the defense in his
or her case.12 To show prejudice, the defend­ant must demon-
strate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been
different.13 A court may address the two prongs of this test,
deficient performance and prejudice, in either order.14
(a) Per Se Ineffective Assistance
of Counsel
Loding alleges that he received ineffective assistance of
counsel because he was represented by a law school gradu-
ate who was not a certified senior law student or an admitted
member of the Nebraska bar. He invites this court to find per
se ineffective assistance of counsel.
This is an issue of law, and the record is sufficient to
adequately review this claim. Before we do, we assess the law
school graduate’s senior certified status.
8
State v. Parnell, supra note 1.
9
Id.10
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
11
State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).
12
Id.13
Id.14
Id.- 677 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670(i) Senior Certified Status
Loding was represented at trial by a licensed attorney, James
Schaefer, and the attorney’s son, Robert Schaefer. At one point,
Robert had been certified to practice law under James’ supervi-
sion pursuant to our rules authorizing limited practice of law
by senior law students.15 Believing that he was still certified
to practice, Robert participated during voir dire and gave the
opening statement and closing argument at Loding’s trial in
April 2016.
But Robert’s status had changed. He graduated from law
school in the spring of 2015. After graduation, he took both
the Uniform Bar Examination (UBE)16 and the Multistate
Professional Responsibility Examination (MPRE).17 He passed
the UBE but failed the MPRE. And the record is clear that he
was notified of this failure prior to the April 2016 trial.
The first question is how this affected his senior practice
certification. The relevant senior practice rule provides that
senior certification of a law student “shall terminate if the
student does not take the first bar examination following his
or her graduation, or if the student takes such bar examina-
tion and fails it, or if he or she is admitted to full practice
before this court.”18
Before applying this rule, however, we must determine
whether the rule’s use of the term “bar examination”19 applies
only to the UBE or to both the UBE and the MPRE. The State
suggests that it is unclear whether failure of the MPRE is a
terminating event under the rule and argues that “the passing
of the MPRE is a prerequisite to the ethical practice of law in
this state but it has nothing to do with the legal ability of the
attorney.”20 We disagree.
15
See Neb. Ct. R. §§ 3-701 to 3-706 (rev. 2012).
16
See Neb. Ct. R. § 3-101(L) (rev. 2015).
17
§ 3-101(J).
18
§ 3-705(A) (emphasis supplied).
19
Id.
20
Brief for appellee at 17.
- 678 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670[10] Just as statutes relating to the same subject are in pari
materia and should be construed together,21 our rules should
be read and construed together. “Examination applicants are
required to pass the MPRE and are required to pass by a com-
bined score the [component parts of the UBE].”22 This rule
makes it clear that the “bar examination” consists of both the
UBE and the MPRE and that examination applicants (includ-
ing Robert) are required to pass both of them. In other words, a
failure of either the MPRE or the UBE, taken after graduation,
is a failure of the “bar examination.” Because Robert’s failure
to pass the MPRE, and thus, the bar examination, was known
before Loding’s trial, Robert’s certification under the senior
practice rules had terminated before the trial.
The second question is whether, as the State also argues,
Robert still met the substantive requirements to provide effec-
tive assistance of counsel. In making this argument, the State
analogizes the passing of the MPRE to the paying of bar
dues as mere “‘technical licensing requirements’” and argues
that Robert was “otherwise competent and qualified to act as
counsel.”23 We disagree.
[11,12] As we have already explained, a passing score on
the MPRE is a substantive requirement for admittance to the
Nebraska bar.24 The MPRE measures “examinees’ knowledge
and understanding of established standards related to the pro-
fessional conduct of lawyers.”25 These standards guide the
Nebraska Rules of Professional Conduct to which all licensed
attorneys within Nebraska are held accountable. Violations of
21
See Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).
22
Neb. Ct. R. § 3-117(A) (rev. 2013).
23
Brief for appellee at 17. See, also, State v. Vanderpool, 286 Neb. 111, 835
N.W.2d 52 (2013).
24
See § 3-117(A).
25
Nat. Conf. of Bar Examiners, Multistate Professional Responsibility
Examination, http://www.ncbex.org/exams/mpre/ (last visited May 3,
2017).
- 679 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670these standards and rules of professional conduct can subject
an attorney to disciplinary proceedings.26
[13] In sum, our standards and rules emphasize the impor-
tance of the ethical practice as indicative of an attorney’s legal
ability. An applicant for admittance to the Nebraska bar who
has demonstrated that he or she lacks the required knowl-
edge of his or her ethical obligations is incompetent to act
as counsel.
Having found that Robert lost his status as a senior certified
law student and failed to meet the substantive requirements to
be a licensed attorney at trial, we now consider the effect of his
participation at trial.
(ii) Robert’s Participation
at Trial
Courts in other jurisdictions have consistently found legal
representation by an unlicensed individual who did not meet
the substantive requirements for admittance to the bar, or
was a layperson posing as an attorney, constitutes per se
ineffective assistance of counsel.27 In such circumstances, an
individual is entitled to postconviction relief without proving
prejudice. As one court explained, “one never admitted to
practice law and therefore who never acquired the threshold
qualification to represent a client in court cannot be allowed
26
See Neb. Ct. R. of Prof. Cond. Scope, comment 19.
27
See, U.S. v. Bergman, 599 F.3d 1142 (10th Cir. 2010), cert. denied 562 U.S.
887, 131 S. Ct. 219, 178 L. Ed. 2d 132; U.S. v. Mitchell, 216 F.3d 1126(D.C. Cir. 2000); U.S. v. Novak, 903 F.2d 883 (2d Cir. 1990); United States
v. Mouzin, 785 F.2d 682 (9th Cir. 1986), cert. denied sub nom. Carvajal v.
United States, 479 U.S. 985, 107 S. Ct. 574, 93 L. Ed. 2d 577; Solina v.
United States, 709 F.2d 160 (2d Cir. 1983); McKeldin v. Rose, 482 F. Supp.
1093 (E.D. Tenn. 1980), reversed on other grounds 631 F.2d 458 (6th Cir.);
Huckelbury v. State, 337 So. 2d 400 (Fla. App. 1976); In re Denzel W., 237
Ill. 2d 285, 930 N.E.2d 974, 341 Ill. Dec. 460 (2010); Benbow v. State,
614 So. 2d 398 (Miss. 1993); People v Felder, 47 N.Y.2d 287, 391 N.E.2d
1274, 418 N.Y.S.2d 295 (1979). But see Blanton v. U.S., 896 F. Supp. 1451(M.D. Tenn. 1995), rehearing denied 94 F.3d 227 (6th Cir. 1996).
- 680 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670to do so, and no matter how spectacular a performance may
ensue, it will not constitute ‘effective representation of coun-
sel’ for purposes of the Sixth Amendment.”28 This is con-
sistent with our treatment of nonlawyers who engage in the
practice of law.
[14-16] A nonlawyer is “any person not duly licensed or oth-
erwise authorized to practice law in the State of Nebraska.”29
As we have demonstrated, Robert was a nonlawyer at the time
of trial. Our court rules are clear and firm; they do not allow
a nonlawyer to engage in the practice of law.30 Because we
regard the unauthorized practice of law as a serious offense,
any unauthorized practice is a nullity.31 Obviously, such a nul-
lity cannot satisfy a defendant’s right to effective representa-
tion of counsel.
[17] We concede that if Loding had been represented only
by Robert, he would have been completely denied the right to
assistance of counsel. A complete denial of assistance of coun-
sel is a per se violation of his right to counsel.
However, other jurisdictions have declined to find per se
ineffective assistance of counsel when there has been “active
participation of a licensed attorney throughout a defendant’s
trial.”32 As the Eighth Circuit explained, “[i]f co-counsel pro-
vides petitioners with effective assistance at all critical stages
28
United States v. Mouzin, supra note 27, 785 F.2d at 697.
29
Neb Ct. R. § 3-1002(A).
30
Neb Ct. R. § 3-1003.
31
See Kelly v. Saint Francis Med. Ctr., 295 Neb. 650, 889 N.W.2d 613(2017).
32
People v. Jacobs, 6 N.Y.3d 188, 190, 844 N.E.2d 1126, 1127, 811 N.Y.S.2d
604, 605 (2005) (emphasis supplied). See, also, U.S. v. Novak, supra note
27; U.S. v. Cocivera, 104 F.3d 566 (3d Cir. 1996); U.S. v. Rimell, 21 F.3d
281 (8th Cir. 1994), cert. denied 513 U.S. 976, 115 S. Ct. 453, 130 L. Ed.
2d 362; The People v. Cox, 12 Ill. 2d 265, 146 N.E.2d 19 (1957); Riggs
v. State, 235 Ind. 499, 135 N.E.2d 247 (1956); State v. Deruy, 143 Kan.
590, 56 P.2d 57 (1936); Higgins v. Parker, 354 Mo. 888, 191 S.W.2d 668(1945), cert. denied 327 U.S. 801, 66 S. Ct. 902, 90 L. Ed. 1026 (1946).
- 681 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670of the proceedings, [a defendant’s] Sixth Amendment rights
have been protected.”33 The theory is that effective assistance
of licensed cocounsel would include correcting any error by
the unadmitted cocounsel. And, in finding no per se violation
in circumstances quite similar to those before us, the Eighth
Circuit relied on its earlier decision in U.S. v. Rosnow.34
James, a qualified, licensed attorney in Nebraska, was the
lead attorney for Loding’s trial. It is undisputed that he was
present at all times throughout the trial and for all interactions
between Loding and Robert. Thus, there was no per se viola-
tion of Loding’s constitutional right to counsel. We now turn
to consider whether Loding is entitled to relief on his claims
under Strickland.
(b) Ineffective Assistance
Under Strickland
(i) Lack of Written Consent
Loding alleges that he received ineffective assistance of
counsel because James did not secure his written consent to be
represented by Robert. While this alleges a very serious viola-
tion of our court rules,35 there is a disciplinary process estab-
lished to adjudicate rule violations.36 But that is not the matter
before us in this appeal. The question here is whether James
(and Robert, under James’ direction) provided ineffective
assist­ance of counsel under Strickland. We conclude that the
record is not adequate to address this matter on direct appeal.
(ii) Opening Statement and
Closing Argument
Loding alleges that he received ineffective assistance of
counsel during opening statement and closing argument. He
33
U.S. v. Rosnow, 981 F.2d 970, 972 (8th Cir. 1992).
34
See U.S. v. Rimell, supra note 32.
35
See § 3-704(C).
36
See Neb. Ct. R. §§ 3-301 to 3-328 (rev. 2016).
- 682 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670claims that counsel was ineffective in failing (1) to call on
A.B.’s mother to testify or explain her absence after stating
during opening statement she would be called upon, (2) to
mention during closing argument other individuals who had
sexually assaulted A.B., and (3) to give a longer closing argu-
ment or say more than that Loding was not guilty.
[18] When reviewing claims of ineffective assistance, an
appellate court will not second-guess a trial counsel’s reason-
able strategic decisions.37 And an appellate court must assess
the trial counsel’s performance from the counsel’s perspective
when the counsel provided the assistance.38
It is clear from the record that Loding’s trial counsel orga-
nized his defense around the theory that A.B. did not like
Loding and that she made up allegations of sexual assault. This
was a legitimate strategy aimed at acquitting Loding of the
charged offense. Therefore, we review Loding’s claims with
this defense theory in mind.
a. Absence of A.B.’s Mother
as Witness
As Loding conceded at oral argument, his brief misstated
the record when he argued that counsel failed to explain why
A.B.’s mother did not testify. The record shows that Loding’s
counsel explained, “We said we would call the mother . . . we
said that in the beginning because we thought the state would
prove its case, and it has not.”
During closing argument, counsel explained multiple times
that the burden of proof was on the State to prove beyond a rea-
sonable doubt that Loding was guilty. Counsel then reviewed
the evidence and explained to the jury why the State had not
met its burden. Outside the presence of the jury, Loding con-
firmed on the record that the mother did not want to testify and
that he did not want her to testify.
37
State v. Alarcon-Chavez, 295 Neb. 1014, ___ N.W.2d ___ (2017).
38
Id.- 683 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670But the record does not explain why, during opening state-
ment, counsel elected to tell the jury that A.B.’s mother would
be called to testify. Although the record shows how the prob-
lem was addressed, the record does not show how it came
about. Under these circumstances, we conclude that the record
is not sufficient to address this matter on direct appeal.
b. Other Alleged Assault
Perpetrators
Loding alleges that his trial counsel was ineffective during
their closing argument for failing to mention two other known
individuals who had both allegedly sexually assaulted A.B.
in the past. He does not explain why this should have been
done, but the implication would seem to be that it could have
convinced the jury someone other than Loding committed the
sexual assaults charged in this case. This is in direct conflict
with Loding’s defense that A.B. made up the allegations of
sexual assault.
[19] We conclude that defense counsel were not deficient
for failing to defeat their own legitimate defense theory. As
to this argument, the record affirmatively shows that Loding’s
counsel acted reasonably and consistently in presenting his
defense and were not ineffective.
c. Closing Argument
Loding alleges that his trial counsel was ineffective because
“closing argument was too short and not much was said other
than that [Loding] was not guilty.”39 This, too, is clearly refuted
by the record.
During their closing argument, Loding’s counsel discussed
the State’s burden of proof, the presumption of innocence,
perceived conflicts in the State’s evidence, A.B.’s lack of
credibility, the defense’s theory of the case, the function of
the criminal justice system, the significance of the jury’s
39
Brief for appellant at 16.
- 684 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670role, the magnitude of the charge, and the standard for rea-
sonable doubt. Because there was no deficiency in this argu-
ment, the record establishes that Loding’s counsel were not
ineffective.
2. Sufficiency of Evidence
Loding alleges that there was insufficient evidence to sup-
port his conviction. He does not argue that the evidence did
not establish the elements of the crime. He essentially argues
that A.B., the one witness to testify to all the elements of the
crime, was not a credible witness because of her youth, her
prior history as a sexual assault victim, her dislike of Loding,
and because she “admitted she was confused about who had
touched her inappropriately at which times”40 in regard to pre-
vious incidents of sexual assault.
[20] But, in reviewing a sufficiency of the evidence claim,
we do not pass on the credibility of witnesses.41 The relevant
question for an appellate court 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.42
Viewed in the light most favorable to the State, and with-
out passing on the credibility of the witnesses, there was suf-
ficient evidence for any rational juror to find Loding guilty
beyond a reasonable doubt.
[21] Loding also alleges that there was insufficient evi-
dence to determine which of the different circumstances
of sexual assault was found to be proved by a reasonable
doubt by all jurors. He argues that such a finding was nec-
essary where he was charged with only one count of sex-
ual assault while the State alleged several different inci-
dents. Because we have consistently held that the State
40
Id. at 12.
41
See State v. Draper, supra note 3.
42
See id.- 685 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670can present evidence of several violations within a specific
timeframe to secure one conviction,43 this argument is with-
out merit.
3. Excessive Sentence
Lastly, Loding alleges that he received an excessive sen-
tence, because the court failed to consider all the appropriate
mitigating factors in imposing the sentence. He was convicted
of first degree sexual assault of a child—a Class IB felony,44
which is punishable by a mandatory minimum of 15 years’
imprisonment and a maximum of life imprisonment.45 He was
sentenced to 35 to 50 years’ imprisonment with credit for
129 days served. As such, his sentences are within the statu-
tory limits.
[22,23] In reviewing a sentence imposed within the statu-
tory limits, an appellate court considers whether the sentenc-
ing court abused its discretion in considering and applying the
relevant factors as well as any applicable legal principles in
determining the sentence to be imposed.46 When imposing a
sentence, the sentencing court is to consider the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social
and cultural background, (5) past criminal record or record
of law-abiding conduct, and (6) motivation for the offense,
as well as (7) the nature of the offense and (8) the amount
of violence involved in the commission of the crime.47 The
district court reviewed the presentence investigation report,
which addressed all of these matters.
43
See, State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010); State v.
Martinez, 250 Neb. 597, 550 N.W.2d 655 (1996).
44
Neb. Rev. Stat. § 28-319.01(2) (Reissue 2016).
45
Id. See, also, Neb. Rev. Stat. § 28-105 (Reissue 2016); State v. Russell,
291 Neb. 33, 863 N.W.2d 813 (2015).
46
State v. Draper, supra note 3.
47
Id.- 686 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. LODING
Cite as 296 Neb. 670[24] Given that, traditionally, a sentencing court is accorded
very wide discretion in determining an appropriate sentence,48
we find no abuse of discretion in the sentence imposed.
VI. CONCLUSION
We emphasize that we take very seriously Loding’s com-
plaint that James failed to obtain Loding’s written consent
to Robert’s participation in the conduct of his trial. Although
we decline to find a per se violation of the right to effec-
tive assistance of counsel, it deserves careful scrutiny under
Strickland. And we conclude that the record is insufficient
to do so. Loding’s allegation regarding counsel’s actions
regarding A.B.’s mother also raises a serious claim of inef-
fective assistance of counsel. But here again, the record
is insufficient.
As to Loding’s other allegations of ineffective assistance
of counsel, the record affirmatively refutes them. And we
find no merit to his assignments of insufficient evidence and
excessive sentence. We therefore affirm the judgment of the
district court.
A ffirmed.
K elch, J., not participating.
48
See id.