State v. Huerta , 26 Neb. 170 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/14/2018 09:08 AM CDT
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    STATE v. HUERTA
    Cite as 
    26 Neb. Ct. App. 170
    State of Nebraska, appellee,
    v. Jose Huerta, appellant.
    ___ N.W.2d ___
    Filed August 7, 2018.    No. A-17-562.
    1.	 Rules of Evidence: Appeal and Error. When the Nebraska Evidence
    Rules commit the evidentiary question at issue to the discretion of the
    trial court, an appellate court reviews the admissibility of evidence for
    an abuse of discretion.
    2.	 Trial: Rules of Evidence: Expert Witnesses. A trial court exercises
    its discretion in determining whether evidence is relevant and whether
    its prejudicial effect substantially outweighs its probative value and in
    admitting or excluding an expert’s testimony.
    3.	 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.
    4.	 Rules of Evidence: Other Acts. Neb. Evid. R. 404(2) does not apply
    to evidence of a defendant’s other crimes or bad acts if the evidence is
    inextricably intertwined with the charged crime.
    5.	 ____: ____. Inextricably intertwined evidence includes evidence that
    forms part of the factual setting of the crime, or evidence that is so
    blended or connected to the charged crime that proof of the charged
    crime will necessarily require proof of the other crimes or bad acts, or if
    the other crimes or bad acts are necessary for the prosecution to present
    a coherent picture of the charged crime.
    6.	 Evidence: Words and Phrases. Unfair prejudice means an undue tend­
    ency to suggest a decision based on an improper basis.
    7.	 Trial: Evidence: Appeal and Error. On appeal, a defendant may not
    assert a different ground for his objection to the admission of evidence
    than was offered at trial.
    8.	 Trial: Waiver: Appeal and Error. Failure to make a timely objection
    waives the right to assert prejudicial error on appeal.
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    9.	 Jury Instructions. Whether jury instructions given by a trial court are
    correct is a question of law.
    10.	 Judgments: Appeal and Error. When reviewing questions of law, an
    appellate court resolves the questions independently of the conclusion
    reached by the lower court.
    11.	 Jury Instructions: Proof: Appeal and Error. In an appeal based on
    a claim of an erroneous jury instruction, the appellant has the burden
    to show that the questioned instruction was prejudicial or otherwise
    adversely affected a substantial right of the appellant.
    12.	 Appeal and Error. Plain error may be found on appeal when an error
    unasserted or uncomplained of at trial, but plainly evident from the
    record, prejudicially affects a litigant’s substantial right and, if uncor-
    rected, would result in damage to the integrity, reputation, and fairness
    of the judicial process.
    13.	 Verdicts: Appeal and Error. Harmless error review looks to the basis
    on which the trier of fact actually rested its verdict; the inquiry is
    not whether in a trial that occurred without the error a guilty verdict
    surely would have been rendered, but, rather, whether the actual guilty
    verdict rendered in the questioned trial was surely unattributable to
    the error.
    14.	 Criminal Law: Trial: Proof: Jury Instructions: Due Process. In a
    criminal trial, the State must prove every element of the offense beyond
    a reasonable doubt, and a jury instruction violates due process if it fails
    to give effect to that requirement.
    15.	 Trial: Jury Instructions: Due Process. Not every ambiguity, inconsist­
    ency, or deficiency in a jury instruction rises to the level of a due proc­
    ess violation. The question is whether the ailing instruction so infected
    the entire trial that the resulting conviction violates due process.
    16.	 Jury Instructions: Appeal and Error. All the jury instructions must
    be read together, and if, taken as a whole, they correctly state the law,
    are not misleading, and adequately cover the issues supported by the
    pleadings and the evidence, there is no prejudicial error necessitat-
    ing reversal.
    17.	 Trial: Prosecuting Attorneys: Jury Instructions. A statement made by
    a prosecutor during closing argument can assist a jury in resolving any
    ambiguity in the jury instructions and may be considered particularly
    where the prosecutor’s argument resolves the ambiguity in favor of
    the defendant.
    18.	 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.
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    19.	 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.
    20.	 Effectiveness of Counsel: Proof: Appeal and Error. 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 counsel’s performance was deficient and that this defi-
    cient performance actually prejudiced his or her defense.
    Appeal from the District Court for Buffalo County: William
    T. Wright, Judge. Affirmed.
    David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson,
    P.C., for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Moore, Chief Judge, and A rterburn and Welch, Judges.
    A rterburn, Judge.
    I. INTRODUCTION
    Jose Huerta was convicted by a jury of first degree sexual
    assault. The district court subsequently sentenced Huerta to
    6 to 8 years’ imprisonment. Huerta appeals from his convic-
    tion here. On appeal, he assigns numerous errors, including
    that the district court erred in making certain evidentiary
    rulings and in failing to properly instruct the jury. In addi-
    tion, Huerta alleges that he received ineffective assistance of
    trial counsel in various respects. Upon our review, we affirm
    Huerta’s conviction.
    II. BACKGROUND
    The State filed an information charging Huerta with
    first degree sexual assault pursuant to Neb. Rev. Stat.
    § 28-319(1)(c) (Reissue 2016). Specifically, the information
    alleged that Huerta, who is 19 years of age or older, subjected
    a person, who was at least 12 years old, but less than 16 years
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    old, to sexual penetration. The charge against Huerta stems
    from an incident which occurred on April 3, 2016. Evidence
    adduced at trial revealed that during the evening of April 3,
    14-year-old C.W. was spending time with her 16-year-old
    friend, C.G., when C.G. contacted Huerta, whom she referred
    to as her “uncle,” to come pick them up. After Huerta picked
    the girls up, he drove them to a liquor store where he pur-
    chased beer, and then he drove all of them to an apartment
    owned by his friend, William McGregor.
    The events that transpired after Huerta, C.W., and C.G.
    arrived at McGregor’s apartment were disputed at trial. C.W.
    testified that once they arrived at the apartment, she, C.G.,
    and Huerta all began to drink the beer he had purchased and
    to smoke cigarettes, which were also provided by Huerta.
    C.W. testified that she drank four beers, which was more alco-
    hol than she had ever previously consumed. In fact, she drank
    so much that she threw up in a trash can which was located
    in the kitchen of the apartment. C.W. testified that after they
    had been at the apartment for a few hours, C.G. and Huerta
    went into the bathroom together and shut the door. While
    they were in the bathroom, C.W. could hear “kissing sounds.”
    When they returned from the bathroom, C.W. observed Huerta
    touching C.G. “in her vaginal area” over her clothing and
    kissing C.G.
    C.W. testified that at some point, Huerta began touching
    her vaginal area. C.G. then instructed C.W. to come into the
    bedroom with her and Huerta. Once inside the bedroom, C.W.
    sat on the corner of the bed. C.W. testified that C.G. told C.W.
    that C.W. was “not going to be a virgin anymore.” Then C.G.
    and Huerta undressed and began having sexual intercourse
    on the bed next to where C.W. was sitting. C.W. testified that
    Huerta used a condom during his sexual contact with C.G. She
    indicated that she had observed Huerta obtain this condom
    from the laundry room in the apartment.
    After C.G. and Huerta finished, they dressed and all three
    of them returned to the living room. However, a few minutes
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    later, Huerta obtained another condom from McGregor, and
    C.W., C.G., and Huerta returned to the bedroom. This time,
    Huerta took off C.W.’s clothes and removed his own clothes.
    He began having penile-vaginal intercourse with C.W. She tes-
    tified that she had never had sexual intercourse before and that
    it was “very painful.” She also testified that she told Huerta
    to stop because she was in pain, but he did not stop. C.W.
    indicated that during this portion of the assault, C.G. remained
    in the bedroom. After C.G. left the room, C.W. described that
    Huerta had anal sex and oral sex with her. She explained that
    Huerta had “stuck his penis through my anus,” that he had
    “placed my mouth on his penis,” and that he “was biting” her
    vaginal area.
    After the assault, C.G.’s boyfriend came to McGregor’s
    apartment to take the girls home. C.W. testified that in the days
    following the assault, she felt anxiety and depression about
    what had happened. Ultimately, she was admitted to a mental
    health hospital where she disclosed the assault.
    C.G. also testified at trial and essentially corroborated
    C.W.’s version of the events which transpired on the evening
    of April 3, 2016. C.G. testified that she, C.W., and Huerta
    went to McGregor’s apartment where they all began to drink
    beer, which was provided by Huerta. She testified that at
    some point, she, C.W., and Huerta went into the bedroom
    where she and Huerta had consensual sexual intercourse. C.G.
    described that C.W. was on the bed while she and Huerta had
    sex. She also explained that after she and Huerta finished,
    Huerta began having sexual intercourse with C.W. C.G. indi-
    cated that after C.W. and Huerta began having sex, she left
    the bedroom.
    During the trial, the State also offered DNA evidence which
    was recovered from two condoms located in the bedroom of
    McGregor’s apartment. This evidence revealed that on one of
    the condoms, both C.G.’s and Huerta’s DNA was present. On
    the second condom, C.W.’s DNA was present, but no conclu-
    sions could be drawn about the presence of any other DNA
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    because the sample was “too complex.” Both condoms tested
    positive for the presence of semen.
    Huerta did not testify at trial, nor did he offer any evidence
    in his defense. However, during the trial the State did offer the
    testimony of Investigator Daniel Warrington with the Kearney
    Police Department, who had previously interviewed Huerta
    about his version of the events of April 3, 2016. During the
    interview, Huerta admitted that the girls were with him at
    McGregor’s apartment, but he denied he had any type of sexual
    contact with either C.W. or C.G. He described himself as “a
    mentor” to C.G. During a subsequent interview with Huerta,
    Huerta continued to “adamantly” deny that he had provided the
    girls with any alcohol, but admitted that he had drank “a large
    amount of alcohol.” He also admitted that C.G. tried to give
    him a “lap dance.” Huerta told Investigator Warrington that he
    had observed C.W. and C.G. kissing each other. He then went
    into the bedroom to sleep.
    When Investigator Warrington indicated that law enforce-
    ment was testing the condoms found in the bedroom for DNA,
    Huerta explained that when he awoke after being asleep on
    the bed, his “pants were loose on him.” He told Investigator
    Warrington that he was concerned that the girls “did something
    to him while he was passed out.”
    After hearing all of the evidence, the jury convicted Huerta
    of first degree sexual assault. The district court subsequently
    sentenced Huerta to 6 to 8 years’ imprisonment.
    Huerta appeals his conviction here.
    III. ASSIGNMENTS OF ERROR
    On appeal, Huerta assigns four errors. First, Huerta argues
    that the district court erred in overruling his objections to
    evidence regarding his sexual contact with C.G. Second, he
    argues that the court erred in allowing the State to offer evi-
    dence of DNA testing which provided inconclusive results.
    Third, he alleges that the court committed plain error in
    instructing the jury prior to its deliberations. Finally, he asserts
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    that he received ineffective assistance of trial counsel in vari-
    ous respects.
    IV. ANALYSIS
    1. Evidentiary Rulings
    On appeal, Huerta alleges that the district court erred in
    making two evidentiary rulings. First, he alleges that the court
    erred in permitting the State to present evidence regarding
    his sexual contact with C.G. on the night of April 3, 2016.
    Second, he alleges that the court erred in allowing the State
    to present evidence regarding DNA testing that was done
    on the two condoms found in a trash can in McGregor’s
    bedroom.
    (a) Standard of Review
    [1,2] When the Nebraska Evidence Rules commit the evi-
    dentiary question at issue to the discretion of the trial court,
    we review the admissibility of evidence for an abuse of discre-
    tion. State v. Johnson, 
    290 Neb. 862
    , 
    862 N.W.2d 757
    (2015).
    A trial court exercises its discretion in determining whether
    evidence is relevant and whether its prejudicial effect sub-
    stantially outweighs its probative value. 
    Id. In addition,
    a trial
    court exercises its discretion admitting or excluding an expert’s
    testimony. See State v. Braesch, 
    292 Neb. 930
    , 
    874 N.W.2d 874
    (2016).
    [3] An abuse of discretion occurs when a trial court’s deci-
    sion is based upon reasons that are untenable or unreasonable
    or if its action is clearly against justice or conscience, reason,
    and evidence. State v. 
    Johnson, supra
    .
    (b) Evidence of Huerta’s
    Sexual Contact with C.G.
    During the State’s opening statement, Huerta objected to
    comments regarding Huerta’s sexual contact with C.G. on the
    night of April 3, 2016. Huerta’s counsel argued:
    The objection is that, Your Honor, this is prejudicial. It’s a
    404 objection in that the evidence would tend to indicate
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    rather than what actually happened between [Huerta] and
    the alleged victim, [C.W.], that it’s probable because he
    had legal sex with what the law would consider a consent-
    ing adult, although, she’s a 16-year-old and a minor, that
    he also did have sex with [C.W.]
    So I think that that being the case, that evidence is
    more prejudicial than probative in that it would allow the
    jury to make an improper conclusion that, well, if he had
    sex with this person, then he must have had sex with this
    other person.
    The district court overruled Huerta’s objection to the evidence.
    The court stated:
    And at least the Court’s understanding is that this is all
    part and parcel of a series of acts leading to the actual
    sexual act, which is the basis for the charge. It is not a
    separate act in and of itself.
    And so on that basis, I am going to overrule the
    objection. I’ll allow the State to make an opening state-
    ment with regard to what the alleged victim in this case,
    [C.W.], observed, in large part because it is part of the
    ongoing criminal act and at least potentially preparatory
    for grooming her for something that might later have
    occurred. So I believe it is probative. I believe under the
    circumstances it is more probative than prejudicial in
    any event.
    When Huerta renewed his objection to this evidence at various
    points during the State’s presentation of evidence, the district
    court continued to overrule the objection.
    On appeal, Huerta argues that the district court erred in
    overruling his objections to evidence regarding his sexual con-
    tact with C.G. on April 3, 2016. He argues that this evidence
    was not “inextricably intertwined” with evidence regarding the
    sexual assault of C.W. Brief for appellant at 15. In addition, he
    argues that the probative value of the evidence was clearly out-
    weighed by its potential prejudice. We conclude that Huerta’s
    assertions have no merit. The district court did not abuse its
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    discretion in admitting evidence of Huerta’s sexual contact
    with C.G. into evidence.
    [4,5] We conclude first that the district court did not err
    in determining that evidence of Huerta’s sexual contact with
    C.G. was inextricably intertwined with evidence of his sexual
    assault of C.W. so as to exclude such evidence from the
    parameters of Neb. Evid. R. 404(2). Rule 404(2) provides the
    following:
    Evidence of other crimes, wrongs, or acts is not admis-
    sible to prove the character of a person in order to show
    that he or she acted in conformity therewith. It may, how-
    ever, be admissible for other purposes, such as proof of
    motive, opportunity, intent, preparation, plan, knowledge,
    identity, or absence of mistake or accident.
    Rule 404(2) does not apply to evidence of a defendant’s other
    crimes or bad acts if the evidence is inextricably intertwined
    with the charged crime. State v. Burries, 
    297 Neb. 367
    , 
    900 N.W.2d 483
    (2017). Inextricably intertwined evidence includes
    evidence that forms part of the factual setting of the crime, or
    evidence that is so blended or connected to the charged crime
    that proof of the charged crime will necessarily require proof
    of the other crimes or bad acts, or if the other crimes or bad
    acts are necessary for the prosecution to present a coherent
    picture of the charged crime. 
    Id. Huerta’s sexual
    contact with C.G. on the evening of April
    3, 2016, was part of the factual setting for the assault of C.W.,
    which occurred on the same evening. The State presented evi-
    dence that Huerta and C.G. instructed C.W. to come into the
    bedroom with them and that they proceeded to have sexual
    intercourse on the bed while C.W. was seated next to them.
    In addition, C.W. testified that once they all got into the bed-
    room, C.G. told C.W. that after that night, C.W. was no longer
    going to be a virgin. C.W. also testified that while Huerta and
    C.G. were engaging in sexual intercourse, he tried to pull her
    down so that she, too, was lying on the bed next to them. The
    sexual assault of C.W. happened very close in time to Huerta’s
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    sexual contact with C.G. While C.W. testified that there was
    a little time between the two events because all three of them
    left the bedroom to go to the living room for a few minutes,
    C.G. testified that Huerta began having sexual intercourse with
    C.W. almost immediately after she and Huerta stopped having
    sexual intercourse.
    The record supports a conclusion that the evidence of
    Huerta’s sexual contact with C.G. was necessary to present a
    coherent picture of the events of the evening of April 3, 2016.
    In addition, we find that there is some evidence to suggest that
    Huerta had some sort of plan to “groom” C.W. for the sexual
    encounter by involving her in the sexual contact with C.G.
    [6] We also find that the district court did not err in con-
    cluding that evidence of Huerta’s sexual contact with C.G. was
    more probative than prejudicial. Neb. Evid. R. 403 provides,
    “Although relevant, evidence may be excluded if its proba-
    tive value is substantially outweighed by the danger of unfair
    prejudice, confusion of the issues, or misleading the jury, or
    by considerations of undue delay, waste of time, or need-
    less presentation of cumulative evidence.” Unfair prejudice
    means an undue tendency to suggest a decision based on an
    improper basis. State v. Chauncey, 
    295 Neb. 453
    , 
    890 N.W.2d 453
    (2017).
    Evidence of Huerta’s sexual contact with C.G. was proba-
    tive for multiple reasons. First, the evidence demonstrated
    that Huerta lied to Investigator Warrington about the events of
    April 3, 2016, on two separate occasions. Huerta repeatedly
    told Investigator Warrington that he did not have any sexual
    contact with either C.W. or C.G. Huerta also indicated during
    his interview with Investigator Warrington that he considered
    himself to be a mentor to C.G. and that he would not do any-
    thing like that to her. Second, as we discussed above, evidence
    of Huerta’s sexual contact with C.G. provided necessary fac-
    tual context to the events leading up to Huerta’s sexual assault
    of C.W. The evidence suggests that Huerta intended C.W.’s
    exposure to the sexual contact between him and C.G. to be a
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    step toward his sexual assault of C.W. Accordingly, while the
    evidence may have been prejudicial to Huerta, its probative
    value clearly outweighed any unfair prejudice.
    Upon our review, we do not find that the district court
    abused its discretion in allowing the State to present evidence
    of Huerta’s sexual contact with C.G. on the evening of April 3,
    2016. Huerta’s assertions on appeal to the contrary are with-
    out merit.
    (c) DNA Evidence
    During the trial, the State called Jeff Bracht, a forensic
    scientist with the Nebraska State Patrol, to testify regard-
    ing his analysis of the two condoms found in a trash can in
    McGregor’s bedroom. Bracht testified that the presence of
    semen was detected on both condoms. He went on to testify
    that on the first condom he analyzed, both C.G.’s and Huerta’s
    DNA were present. Huerta objected to Bracht’s testimony
    regarding the DNA on the first condom on the basis that such
    evidence was more prejudicial than probative. The court over-
    ruled the objection.
    Bracht testified that his analysis indicated that on the sec-
    ond condom, C.W.’s DNA was present on one side of the
    condom. Bracht did indicate that on the side of the condom
    where C.W.’s DNA was present, Huerta was excluded as a
    contributor of the sample. However, on the other side of the
    condom, Bracht was unable to include or exclude anyone as a
    contributor to the DNA present. He testified, “There is just a
    lot going on. The mixture was too complex to really determine
    how many people were in that mixture.”
    Huerta alleges on appeal that the district court erred in
    allowing the State to present evidence regarding the DNA
    testing completed on the two condoms. Specifically, he argues
    that evidence that the first condom contained both C.G.’s and
    his DNA should have been excluded because the evidence was
    not relevant to the question of whether he had sexual con-
    tact with C.W. Additionally, he argues that evidence that the
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    second condom contained C.W.’s DNA, but that the remaining
    sample was “too complex” to reach any conclusions about
    other contributors of DNA, constituted “inconclusive” test
    results that “could cause the jury to speculate.” Brief for
    appellant at 17. Because Huerta failed to properly object to the
    DNA evidence regarding both condoms, we conclude that he
    has waived his right to appellate review of this issue.
    [7] During Bracht’s testimony, Huerta objected to the admis-
    sion of evidence about the condom that contained both his and
    C.G.’s DNA because the evidence was more prejudicial than
    probative. However, on appeal, he argues that the evidence
    should not have been admitted because it was not relevant
    to whether he had sexual contact with C.W. Essentially, he is
    asserting a different ground for his objection on appeal than he
    did at trial. On appeal, a defendant may not assert a different
    ground for his objection to the admission of evidence than was
    offered at trial. State v. Bauldwin, 
    283 Neb. 678
    , 
    811 N.W.2d 267
    (2012). Because at trial Huerta did not object to the admis-
    sion of evidence about the condom that contained both his and
    C.G.’s DNA on the basis of relevance, he is precluded from
    arguing that assertion in this appeal.
    [8] In addition, Huerta did not object at all to Bracht’s tes-
    timony regarding the DNA found on the second condom. It is
    well settled that failure to make a timely objection waives the
    right to assert prejudicial error on appeal. State v. Casterline,
    
    293 Neb. 41
    , 
    878 N.W.2d 38
    (2016). We conclude that Huerta
    has waived appellate review regarding the district court’s deci-
    sion to admit the DNA evidence.
    2. Jury Instructions
    Huerta alleges that the district court committed plain error
    in improperly instructing the jury regarding the elements of
    first degree sexual assault and the State’s burden of proof
    regarding those elements. Although we agree with Huerta that
    the district court did err in its instructions to the jury, we find
    that such error was harmless.
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    (a) Standard of Review
    [9-11] Whether jury instructions given by a trial court are
    correct is a question of law. State v. Abejide, 
    293 Neb. 687
    ,
    
    879 N.W.2d 684
    (2016). When reviewing questions of law,
    an appellate court resolves the questions independently of the
    conclusion reached by the lower court. 
    Id. In an
    appeal based
    on a claim of an erroneous jury instruction, the appellant has
    the burden to show that the questioned instruction was preju-
    dicial or otherwise adversely affected a substantial right of
    the appellant. State v. Hinrichsen, 
    292 Neb. 611
    , 
    877 N.W.2d 211
    (2016).
    (b) Analysis
    Jury instruction No. 7 provided to the jury informed it of
    the elements of the charge of first degree sexual assault. That
    instruction, as given to the jury in this case, read as follows:
    The elements of the crime of first degree sexual
    assault are:
    (1) That the Defendant, . . . Huerta, subjected C.W. to
    sexual penetration;
    (2) That when [Huerta] subjected C.W. to sexual pen-
    etration he was a person nineteen years of age or older;
    (3) That when [Huerta] subjected C.W. to sexual pen-
    etration she was a person at least 12 years of age but less
    than 16 years of age;
    (4) That events occurred on or about April 3, 2016;
    and
    (5) These events occurred in Buffalo County, Nebraska.
    During the jury instruction conference, Huerta did not
    object to this instruction, nor did he offer an alternative
    instruction in its place. On appeal, however, he argues that the
    district court erred in giving jury instruction No. 7 because
    the instruction does not conform to the applicable pattern jury
    instruction and does not properly instruct the jury that the
    State has to prove each element of the crime charged beyond
    a reasonable doubt. We agree with Huerta’s basic contention
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    that the district court erred in failing to model jury instruction
    No. 7 after the applicable pattern instruction.
    [12] As Huerta concedes in his brief on appeal, he did not
    object to jury instruction No. 7 during the trial. As such, we
    review only for plain error. Plain error may be found on appeal
    when an error unasserted or uncomplained of at trial, but
    plainly evident from the record, prejudicially affects a litigant’s
    substantial right and, if uncorrected, would result in damage to
    the integrity, reputation, and fairness of the judicial process.
    State v. Abram, 
    284 Neb. 55
    , 
    815 N.W.2d 897
    (2012).
    Whenever an applicable instruction may be taken from the
    Nebraska Jury Instructions, that instruction is the one which
    should usually be given to the jury in a criminal case. State v.
    Taylor, 
    282 Neb. 297
    , 
    803 N.W.2d 746
    (2011). NJI2d Crim.
    3.0 provides a pattern instruction for explaining to the jury the
    elements of the charged crime or crimes. Included in NJI2d
    Crim. 3.0, in addition to the elements of the charged crime,
    is a separate section which instructs the jury regarding the
    “Effect of Findings.” That section reads as follows: “If you
    decide that the state proved each element beyond a reasonable
    doubt then you must find the defendant guilty. Otherwise, you
    must find the defendant not guilty.”
    In this case, the district court properly instructed the jury
    regarding the elements of first degree sexual assault in jury
    instruction No. 7. However, the court did not include in that
    instruction the separate section regarding the effect of the
    jury’s findings. Essentially, jury instruction No. 7 failed to
    inform the jury that it had to find that the State proved each
    element of first degree sexual assault beyond a reasonable
    doubt in order to find Huerta guilty of that crime. We agree
    with Huerta that the district court committed plain error in
    omitting that portion of the instruction. Nevertheless, we find
    that the court’s omission does not require reversal because such
    omission constituted a harmless error.
    [13] Harmless error review looks to the basis on which
    the trier of fact actually rested its verdict; the inquiry is not
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    whether in a trial that occurred without the error a guilty ver-
    dict surely would have been rendered, but, rather, whether the
    actual guilty verdict rendered in the questioned trial was surely
    unattributable to the error. State v. Merchant, 
    288 Neb. 439
    ,
    
    848 N.W.2d 630
    (2014). Upon our review, we conclude that the
    district court’s error in giving jury instruction No. 7 is harm-
    less because the other instructions given to the jury properly
    instructed it regarding the State’s burden to prove Huerta’s
    guilt beyond a reasonable doubt.
    [14,15] In a criminal trial, the State must prove every ele-
    ment of the offense beyond a reasonable doubt, and a jury
    instruction violates due process if it fails to give effect to that
    requirement. See, e.g., Middleton v. McNeil, 
    541 U.S. 433
    , 
    124 S. Ct. 1830
    , 
    158 L. Ed. 2d 701
    (2004); Rose v. Clark, 
    478 U.S. 570
    , 
    106 S. Ct. 3101
    , 
    92 L. Ed. 2d 460
    (1986). Nonetheless, not
    every ambiguity, inconsistency, or deficiency in a jury instruc-
    tion rises to the level of a due process violation. The question
    is whether the ailing instruction so infected the entire trial
    that the resulting conviction violates due process. Middleton
    v. 
    McNeil, supra
    . To determine whether Huerta’s due process
    rights have been violated, the question that must be answered
    is whether there is a reasonable likelihood that the jury has
    applied the challenged instruction in a way that violates the
    Constitution. See 
    id. Our review
    of the case law in this area reveals that many
    courts have considered the effect of failing to instruct the
    jury regarding each and every element of the charged crime
    or failing to properly instruct the jury as to the meaning of
    each and every element of the charged crime. However, this
    is not the situation presented by this case. The district court
    properly instructed the jury regarding each element of Huerta’s
    first degree sexual assault charge. However, the court did
    not explicitly indicate that the jury had to find that the State
    proved each and every element of first degree sexual assault
    beyond a reasonable doubt in order to find Huerta guilty of
    that charge. We have been unable to find a similar case where
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    a court has failed to specifically delineate to the jury that the
    State must prove each element of the charged crime beyond a
    reasonable doubt.
    [16] We have examined all of the jury instructions provided
    to the jury in this case. Notwithstanding the district court’s
    error in giving jury instruction No. 7, we conclude that the
    jury was properly instructed that it had to find the State proved
    each element of first degree sexual assault beyond a reasonable
    doubt in order to return a guilty verdict. All the jury instruc-
    tions must be read together, and if, taken as a whole, they cor-
    rectly state the law, are not misleading, and adequately cover
    the issues supported by the pleadings and the evidence, there
    is no prejudicial error necessitating reversal. State v. Merchant,
    
    288 Neb. 439
    , 
    848 N.W.2d 630
    (2014). And the appellant
    has the burden to show that a questioned jury instruction was
    prejudicial or otherwise adversely affected a substantial right
    of the appellant. 
    Id. Jury instruction
    No. 2 stated:
    As I told you at the beginning of the trial this is a
    criminal case in which the State of Nebraska has charged
    [Huerta] with first degree sexual assault. The fact that
    the State has brought this charge is not evidence of any-
    thing. The charge is simply an accusation, nothing more.
    [Huerta] has pleaded not guilty. He is presumed to be
    innocent. That means you must find him not guilty unless
    and until you decide that the State has proved him guilty
    beyond a reasonable doubt.
    In addition, jury instruction No. 9 instructed the jury regarding
    the definition of reasonable doubt:
    A reasonable doubt is one based upon reason and com-
    mon sense after careful and impartial consideration of all
    the evidence. Proof beyond a reasonable doubt is proof so
    convincing that you would rely and act upon it without
    hesitation in the more serious and important transactions
    of life. However, proof beyond a reasonable doubt does
    not mean proof beyond all possible doubt.
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    The district court also informed the jury prior to reading the
    jury instructions that “[n]o one of these instructions contain
    all of the law applicable to this case. You must consider each
    instruction in light of all the others.” This admonition is also
    contained in jury instruction No. 1.
    [17] In addition to the jury instructions provided by the dis-
    trict court, we note that the State correctly informed the jury
    about its burden of proof during its closing argument:
    So what I really want you to focus on right now is Jury
    Instruction No. 7. And that’s going to be the elements the
    State has to prove. As we talked about during my voir
    dire with you initially when we did the jury selection,
    if you can remember we talked about what the State’s
    burden is and it is to prove [Huerta] guilty beyond a
    reasonable doubt of the elements, not every fact that the
    witnesses say, okay. So let’s go over those elements and
    how the State has proven each one of those individually
    beyond a reasonable doubt.
    Following this statement, counsel for the State explained in
    her argument to the jury how the burden of proof had been
    met as to each element of the charged offense. The U.S.
    Supreme Court noted in Middleton v. McNeil, 
    541 U.S. 433
    ,
    
    124 S. Ct. 1830
    , 
    158 L. Ed. 2d 701
    (2004), that a statement
    made by a prosecutor during closing argument can assist a
    jury in resolving any ambiguity in the jury instructions and
    may be considered particularly where, as here, the pros-
    ecutor’s argument resolves the ambiguity in favor of the
    defendant.
    Based upon our reading of the entirety of the jury instruc-
    tions provided in this case and considering the statements
    of the State in its closing argument, we find that the district
    court’s failure to include in jury instruction No. 7 a separate
    section informing the jury regarding the effect of its findings
    was harmless error. Read as a whole, the jury instructions
    properly inform the jury that it had to find that the State
    had proved all of the elements of first degree sexual assault
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    beyond a reasonable doubt in order to find Huerta guilty of
    that crime. To the extent the instructions were ambiguous
    in any way, the State’s clear and explicit explanation of its
    burden of proof during closing argument resolved that ambi-
    guity. There is no reasonable likelihood that the jury applied
    jury instruction No. 7 in a way that violates the Constitution.
    Huerta cannot show he was prejudiced in any way by the
    district court’s omission of the separate section from jury
    instruction No. 7, and his guilty verdict was surely unattribut-
    able to the court’s error.
    3. Ineffective Assistance
    of Trial Counsel
    On appeal, Huerta alleges that his trial counsel was inef-
    fective in (1) failing to object to the testimony of Investigator
    Warrington regarding Huerta’s date of birth, (2) failing to file
    a motion in limine to exclude evidence of Huerta’s sexual con-
    tact with C.G., (3) failing to object to jury instruction No. 7,
    and (4) failing to object to the DNA evidence. We will address
    each of Huerta’s allegations of ineffective assistance of counsel
    below. First, however, we detail the relevant law which over-
    lays our analysis of ineffective assistance of counsel claims
    which are made on direct appeal.
    [18,19] Huerta is represented in this direct appeal by differ-
    ent counsel than the counsel who represented him during trial.
    However, we do note that appellate counsel did begin repre-
    senting Huerta at his sentencing hearing. 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. State v. Casares, 
    291 Neb. 150
    ,
    
    864 N.W.2d 667
    (2015). The fact that an ineffective assistance
    of counsel claim is raised on direct appeal does not necessar-
    ily mean that it can be resolved. State v. Mendez-Osorio, 
    297 Neb. 520
    , 
    900 N.W.2d 776
    (2017). The determining factor is
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    whether the record is sufficient to adequately review the ques-
    tion. 
    Id. [20] To
    prevail on a claim of ineffective assistance of coun-
    sel under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), the defendant must show that
    counsel’s performance was deficient and that this deficient
    performance actually prejudiced his or her defense. State v.
    Ortega, 
    290 Neb. 172
    , 
    859 N.W.2d 305
    (2015).
    When an ineffective assistance of counsel claim is raised
    in a direct appeal, the appellant is not required to allege
    prejudice; however, an appellant must make specific allega-
    tions of the conduct that he or she claims constitutes deficient
    performance by trial counsel. State v. 
    Casares, supra
    . General
    allegations that trial counsel performed deficiently or that trial
    counsel was ineffective are insufficient to raise an ineffective
    assistance claim on direct appeal and thereby preserve the
    issue for later review. 
    Id. Appellate courts
    have generally reached ineffective assist­
    ance of counsel claims on direct appeal only in those instances
    where it was clear from the record that such claims were with-
    out merit or in the rare case where trial counsel’s error was so
    egregious and resulted in such a high level of prejudice that
    no tactic or strategy could overcome the effect of the error,
    which effect was a fundamentally unfair trial. 
    Id. An ineffec-
    tive assistance of counsel claim made on direct appeal can be
    found to be without merit if the record establishes that trial
    counsel’s performance was not deficient or that the appellant
    could not establish prejudice. 
    Id. See, also,
    State v. Filholm,
    
    287 Neb. 763
    , 
    848 N.W.2d 571
    (2014).
    (a) Failure to Object to Investigator
    Warrington’s Testimony
    Huerta alleges that his trial counsel was ineffective in
    failing to object to the testimony of Investigator Warrington
    regarding Huerta’s date of birth. That testimony reads as
    follows:
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    Q[:] And were you familiar with . . . Huerta from pre-
    vious contacts with him?
    A[:] Just aware from previous law enforcement. We
    have a database that contains reports, any type of a con-
    tact with the individual, which we were able to determine.
    And based upon his current address . . . being that of . . .
    Huerta with the date of birth of [March] 1980.
    Q[:] And at that time then that would have made him a
    person over 19 years of age?
    A[:] Correct.
    Huerta contends that trial counsel failed to make a founda-
    tional objection to Investigator Warrington’s testimony and
    that if counsel had done so, the objection would have been
    sustained and the State would not have had any evidence to
    prove that Huerta was 19 years of age or older at the time of
    the offense.
    Upon our review, we conclude that the record is insuffi-
    cient to address Huerta’s claim, because it does not contain
    any indication of why counsel did not object to Investigator
    Warrington’s testimony on foundational grounds or whether the
    decision to not object was part of counsel’s trial strategy.
    (b) Failure to Make Motion in
    Limine Regarding Evidence
    of Sexual Contact Between
    Huerta and C.G.
    Huerta alleges that his trial counsel was ineffective in fail-
    ing to file a motion in limine to exclude evidence of Huerta’s
    sexual contact with C.G. at trial. Huerta acknowledges that his
    trial counsel did object to such evidence during the trial, but
    he argues that the issue “would have been better presented at a
    motion in limine which would have given the Court more time
    to determine if the sexual contact/intercourse between [Huerta]
    and C.G. was inextricably intertwined to the sexual assault
    of C.W.” Brief for appellant at 26. Essentially, Huerta argues
    that had trial counsel presented his objection to this evidence
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    to the district court prior to trial, such objection would have
    been successful.
    Huerta’s allegation of ineffective assistance of counsel has
    no merit. As we discussed more thoroughly above, the district
    court did not err in admitting evidence of Huerta’s sexual
    contact with C.G. into evidence, because such evidence was
    relevant and was more probative than prejudicial. Had trial
    counsel filed a motion in limine regarding his objection to this
    evidence, such motion would have failed. Whether the objec-
    tion was made prior to or during the State’s presentation of
    evidence, the result would have been the same. The evidence
    was properly admitted.
    (c) Failure to Object to
    Jury Instruction No. 7
    Huerta alleges that his trial counsel was ineffective in fail-
    ing to object to jury instruction No. 7 and in failing to offer
    NJI2d Crim. 3.0 as an alternative to jury instruction No. 7.
    Huerta’s allegation of ineffective assistance of trial counsel
    has no merit. As we discussed above, although the district
    court did err in its giving of jury instruction No. 7 without
    including the separate section informing the jury about the
    effect of its findings, we concluded that such error was harm-
    less. Accordingly, even if counsel had objected to the instruc-
    tion or had offered an alternative instruction, such action
    would not have had any effect on the ultimate outcome of
    the trial. Huerta’s guilty verdict was not attributable to the
    district court’s error or to his trial counsel’s failure to object.
    Simply stated, Huerta cannot show he was prejudiced by
    counsel’s actions.
    (d) Failure to Object
    to DNA Evidence
    Finally, Huerta alleges that his trial counsel was ineffective
    in failing to properly object to the DNA evidence offered by
    the State. Our record on appeal is sufficient to address Huerta’s
    claim. The record before us does not support a claim of
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    ineffective assistance of counsel regarding the failure to object
    to the DNA evidence.
    Huerta argues that trial counsel should have made a rel-
    evance objection to evidence that both his DNA and C.G.’s
    DNA were found on a condom located in a trash can in
    McGregor’s bedroom. He contends that this evidence is not
    relevant to the question of whether he had sexual contact with
    C.W. We disagree. Huerta concedes in his brief on appeal that
    he had sexual contact with C.G. on the evening of April 3,
    2016, when he states, “[T]here is no question that [Huerta]
    had sexual contact/intercourse with C.G. that night. So no sur-
    prise that [Huerta’s] DNA would be found in the semen on the
    inside of that condom.” Brief for appellant at 18. This state-
    ment is in direct contrast to Huerta’s statements to Investigator
    Warrington that he did not have sexual contact with either C.W.
    or C.G. In addition, it is in contrast to the position he seem-
    ingly took at trial.
    Contrary to Huerta’s assertions on appeal, evidence that both
    Huerta’s DNA and C.G.’s DNA were on the condom was rel-
    evant to disprove Huerta’s original version of what happened
    on April 3, 2016. In addition, as we discussed above, it was
    relevant to support C.W.’s testimony about all of the events
    which transpired on that date. Accordingly, any objection by
    trial counsel to this evidence on relevance grounds would not
    have been successful and trial counsel was not ineffective for
    failing to raise an unsuccessful objection.
    Huerta also argues that trial counsel should have objected
    to inconclusive DNA evidence which was found on the con-
    dom where C.W.’s DNA was identified. Huerta argues that
    the results of the DNA testing of that condom “were so incon-
    clusive that they could cause the jury to speculate.” Brief for
    appellant at 17. Based on our review of Bracht’s testimony
    regarding the inconclusive DNA evidence, we conclude that
    Huerta cannot show that he was prejudiced by the admission
    of the testimony and that, as a result, he cannot demonstrate he
    received ineffective assistance of counsel.
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    As we discussed above, Bracht testified that his analysis
    of the condom indicated that C.W.’s DNA was present on one
    side of the condom. Bracht did indicate that on the side of the
    condom where C.W.’s DNA was present, Huerta was excluded
    as a contributor of the sample. However, on the other side of
    the condom, Bracht was unable to include or exclude anyone
    as a contributor to the DNA present. He testified, “There is
    just a lot going on. The mixture was too complex to really
    determine how many people were in that mixture.” Bracht also
    testified that the presence of semen was found on the condom
    with C.W.’s DNA.
    We find that this evidence is relevant, in that it supports
    both C.W.’s testimony and C.G.’s testimony that C.W. had
    sexual intercourse in McGregor’s bedroom on the evening of
    April 3, 2016. We also find that this evidence is more proba-
    tive than prejudicial. However, we do note that the weight of
    the evidence is decreased somewhat due to the inability to
    identify the male contributor of the semen. We also note that
    to some extent, Bracht’s testimony was exculpatory because
    he was able to completely exclude Huerta as a contributor of
    DNA as to one side of the condom. To the extent Bracht was
    unable to give any identifying information about the other side
    of the condom, there is no indication of any kind that sug-
    gested that Huerta may be a contributor on that side or that
    would lead the jury to insinuate that he was a contributor to
    the mixture of DNA. We conclude that Huerta cannot show
    that he was prejudiced by the admission of this DNA evidence.
    As such, he cannot demonstrate that he received ineffective
    assistance of trial counsel in this regard.
    V. CONCLUSION
    Upon our review, we affirm Huerta’s conviction for first
    degree sexual assault. As to Huerta’s claims of ineffective
    assistance of trial counsel, we find that he was not denied
    effective assistance of counsel when counsel failed to make
    a motion in limine regarding evidence of sexual contact
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    between Huerta and C.G., failed to object to jury instruction
    No. 7, or failed to object to the DNA evidence presented by
    the State. We find that the record is insufficient to review
    whether trial counsel was ineffective when he failed to object
    to Investigator Warrington’s testimony regarding Huerta’s date
    of birth.
    A ffirmed.
    Welch, Judge, concurring.
    While I concur in the result reached by the majority, I
    respectfully disagree with the reasoning touching on the jury
    instruction issue.
    In Middleton v. McNeil, 
    541 U.S. 433
    , 437, 
    124 S. Ct. 1830
    ,
    
    158 L. Ed. 2d 701
    (2004), the U.S. Supreme Court held:
    In a criminal trial, the State must prove every ele-
    ment of the offense, and a jury instruction violates due
    process if it fails to give effect to that requirement. .
    . . Nonetheless, not every ambiguity, inconsistency, or
    deficiency in a jury instruction rises to the level of a due
    process violation. The question is “‘whether the ailing
    instruction . . . so infected the entire trial that the result-
    ing conviction violates due process.’” . . . “‘[A] single
    instruction to a jury may not be judged in artificial iso-
    lation, but must be viewed in the context of the overall
    charge.’” . . . If the charge as a whole is ambiguous, the
    question is whether there is a “‘reasonable likelihood that
    the jury has applied the challenged instruction in a way’
    that violates the Constitution.”
    (Citations omitted.)
    In Middleton, the U.S. Supreme Court found that the com-
    bined instructions were, at worst, ambiguous because they were
    internally inconsistent. In response, the State of California
    argued that the prosecutor cured any potential ambiguity by
    arguing a correct statement of the law to the jury. The U.S.
    Supreme Court noted that the Ninth Circuit “faulted the state
    court for relying on the prosecutor’s argument, noting that
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    instructions from a judge are presumed to have more influ-
    ence than arguments of counsel.” 
    Middleton, 541 U.S. at 438
    .
    In response, the U.S. Supreme Court held:
    But this is not a case where the jury charge clearly
    says one thing and the prosecutor says the opposite; the
    instructions were at worst ambiguous because they were
    internally inconsistent. Nothing in Boyde [v. California,
    
    494 U.S. 370
    , 
    110 S. Ct. 1190
    , 
    108 L. Ed. 2d 316
          (1990),] precludes a state court from assuming that coun-
    sel’s arguments clarified an ambiguous jury charge. This
    assumption is particularly apt when it is the prosecu-
    tor’s argument that resolves an ambiguity in favor of
    the defendant.
    
    Middleton, supra
    (emphasis in original).
    I agree with the majority that the omission of NJI2d Crim.
    3.0’s “Effect of Findings” from jury instruction No. 7 which
    sets forth the State’s burden of proof as to each and every
    element of the crime rendered that instruction, in isolation,
    an erroneous jury instruction. When read as a whole with all
    instructions, the district court properly instructed the jury that
    the State had the burden of proof beyond a reasonable doubt
    for the offense, but left out that the burden attached to each and
    every element. I disagree with the majority that the combined
    instructions “properly instructed that [the jury] had to find the
    State proved each element of first degree sexual assault beyond
    a reasonable doubt in order to return a guilty verdict.” Without
    reference to the burden attaching to each and every element,
    the instructions were ambiguous. That said, the instructions as
    a whole, taken together with the prosecutors’ argument to the
    jury which clearly delineated that the State’s burden attached
    to each and every element of the offense, left no reasonable
    likelihood that the jury applied the challenged instructions in
    a way that violates the Constitution. As such, I concur with
    the majority that the judgment of the district court should be
    affirmed as to this issue, and I join with the court as to the
    remainder of the majority opinion.