State v. Golyar , 919 N.W.2d 133 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/09/2018 08:11 AM CST
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. GOLYAR
    Cite as 
    301 Neb. 488
    State of Nebraska, appellee, v.
    Shanna E. Golyar, appellant.
    ___ N.W.2d ___
    Filed November 9, 2018.   No. S-17-955.
    1.	 Convictions: Evidence: Appeal and Error. In reviewing a criminal
    conviction for 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. 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 ele-
    ments of the crime beyond a reasonable doubt.
    2.	 Effectiveness of Counsel: Constitutional Law: Statutes: Records:
    Appeal and Error. Whether a claim of ineffective assistance of trial
    counsel can be determined on direct appeal presents a question of law,
    which turns upon the sufficiency of the record to address the claim
    without an evidentiary hearing or whether the claim rests solely on the
    interpretation of a statute or constitutional requirement. An appellate
    court determines as a matter of law whether the record conclusively
    shows that (1) a defense counsel’s performance was deficient or (2)
    a defendant was or was not prejudiced by a defense counsel’s alleged
    deficient performance.
    3.	 Homicide: Intent. A person commits first degree murder if he or
    she kills another person purposely and with deliberate and premedi-
    tated malice.
    4.	 Criminal Law: Homicide: Proof: Words and Phrases. In a homicide
    case, corpus delicti is the body or substance of the crime—the fact that
    a crime has been committed. It is not established until it is proved that
    a human being is dead and that the death occurred as a result of the
    criminal agency of another.
    5.	 Homicide: Circumstantial Evidence: Proof. The body of a missing
    person is not required to prove the corpus delicti for homicide. Instead,
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    STATE v. GOLYAR
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    courts have generally held that circumstantial evidence associated with
    the victim’s disappearance can be sufficient to establish the death.
    6.	 Homicide: Intent: Circumstantial Evidence: Proof. Purposeful, delib-
    erate, premeditated murder may be proved circumstantially.
    7.	 Homicide: Intent: Words and Phrases. In the homicide context, delib-
    erate means not suddenly, not rashly, and requires that the defendant con-
    sidered the probable consequences of his or her act before doing the act.
    8.	 ____: ____: ____. The term “premeditated” means to have formed a
    design to commit an act before it was done.
    9.	 Homicide: Intent. One kills with premeditated malice if, before the act
    causing death occurs, one has formed the intent or determined to kill the
    victim without legal justification.
    10.	 Homicide: Intent: Time. No particular length of time for premeditation
    is required, provided the intent to kill is formed before the act is com-
    mitted and not simultaneously with the act that caused the death.
    11.	 ____: ____: ____. The design or purpose to kill may be formed upon
    premeditation and deliberation at any moment before the homicide is
    committed.
    12.	 Criminal Law: Evidence: Intent. The intent with which an act is com-
    mitted is a mental process and may be inferred from the words and acts
    of the defendant and from the circumstances surrounding the incident.
    13.	 Arson. A person commits arson in the second degree if he or she inten-
    tionally damages a building or property contained within a building by
    starting a fire or causing an explosion.
    14.	 Arson: Circumstantial Evidence: Proof. Circumstantial evidence is
    sufficient to support a conviction for arson if such evidence and the rea-
    sonable inferences that may be drawn therefrom establish guilt beyond
    a reasonable doubt.
    15.	 Effectiveness of Counsel: Postconviction: 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.
    16.	 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.
    17.	 Effectiveness of Counsel: Records: Appeal and Error. The fact that
    an ineffective assistance of counsel claim is raised on direct appeal does
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    STATE v. GOLYAR
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    not necessarily mean that it can be resolved. The determining factor is
    whether the record is sufficient to adequately review the question.
    18.	 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.
    19.	 ____: ____. 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.
    20.	 Effectiveness of Counsel: Jury Trials: Waiver. The decision to waive
    a jury trial is ultimately and solely the defendant’s, and, therefore, the
    defendant must bear the responsibility for that decision.
    21.	 ____: ____: ____. Counsel’s advice to waive a jury trial can be the
    source of a valid claim of ineffective assistance only when (1) counsel
    interferes with the client’s freedom to decide to waive a jury trial or (2)
    the client can point to specific advice of counsel so unreasonable as to
    vitiate the knowing and intelligent waiver of the right.
    22.	 Trial: Joinder. Prejudice from joinder cannot be shown if evidence of
    one charge would have been admissible in a separate trial of another
    charge.
    23.	 Trial: Constitutional Law: Testimony. A defendant has a fundamental
    constitutional right to testify.
    24.	 Trial: Attorney and Client: Testimony: Waiver. The right to testify
    is personal to the defendant and cannot be waived by defense counsel’s
    acting alone.
    25.	 Trial: Attorney and Client: Testimony. Defense counsel bears the pri-
    mary responsibility for advising a defendant of his or her right to testify
    or not to testify, of the strategic implications of each choice, and that the
    choice is ultimately for the defendant to make.
    26.	 Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
    Waiver. Defense counsel’s advice to waive the right to testify can pre­
    sent a valid claim of ineffective assistance of counsel in two instances:
    (1) if the defendant shows that counsel interfered with his or her free-
    dom to decide to testify or (2) if counsel’s tactical advice to waive the
    right was unreasonable.
    Appeal from the District Court for Douglas County: Timothy
    P. Burns, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, Lori A.
    Hoetger, and Scott C. Sladek for appellant.
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    STATE v. GOLYAR
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    301 Neb. 488
    Douglas J. Peterson, Attorney General, Sarah E. Marfisi, and
    Erin E. Tangeman for appellee.
    Heavican, C.J., Cassel, Stacy, Funke,           Papik,   and
    Freudenberg, JJ., and Moore, Chief Judge.
    Stacy, J.
    Cari Farver disappeared on November 13, 2012, and her
    body has never been found. About 4 years after Farver’s disap-
    pearance, Shanna E. Golyar was charged with Farver’s mur-
    der and with arson. At trial, the State introduced uncontested
    evidence that Golyar considered Farver a romantic rival and
    that Golyar posed as Farver (and others) for several years in
    emails, texts, and on social media. While posing as someone
    else, Golyar confessed in several emails to murdering Farver.
    Golyar was found guilty of first degree murder and second
    degree arson after a bench trial. She was sentenced to life
    imprisonment on the murder conviction and to a consecutive
    sentence of 18 to 20 years’ imprisonment on the arson convic-
    tion. In this direct appeal, Golyar contends the evidence was
    insufficient to support the convictions and claims her trial
    counsel was ineffective in various ways. We affirm.
    I. FACTS
    1. Golyar Meets David K roupa
    In late spring or early summer 2012, Golyar started dat-
    ing David Kroupa after meeting him through an online dat-
    ing site. Kroupa described the relationship as “[c]asual” and
    informed Golyar he was also dating other women. From
    almost the beginning, however, Golyar wanted a commitment
    from Kroupa. The State’s general theory was that Golyar
    was obsessed with Kroupa and did not want him dating
    other women.
    2. K roupa Meets Farver
    Near the end of October 2012, Kroupa met the victim in this
    case, Farver. Kroupa’s first date with Farver was on October 29
    at a restaurant in Omaha, Nebraska. During the date, Kroupa’s
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    cell phone began “blowing up” with calls and text messages
    from Golyar. He initially ignored the messages, but when they
    continued, he contacted Golyar and told her he was on a date
    and could not respond. When they left the restaurant, Kroupa
    and Farver went to Kroupa’s nearby apartment.
    Almost immediately after they arrived, Golyar started ring-
    ing the bell at the security door of Kroupa’s apartment build-
    ing. Kroupa left Farver in his apartment and went to the secu-
    rity door to speak with Golyar. Golyar was crying and upset
    and insisted Kroupa let her in so she could retrieve some of her
    belongings from his apartment. Kroupa left Golyar at the secu-
    rity door and went back to his apartment to explain the situa-
    tion to Farver. Farver decided to leave, and as she did so, she
    passed by Golyar, who was still standing by the security door.
    Farver got into her black Ford Explorer, which was parked
    near the security door, and drove away.
    After Farver left, Kroupa let Golyar into his apartment to
    retrieve her belongings. She was still upset and did not stay
    long before he asked her to leave. Not long after Golyar left,
    Kroupa and Farver spoke on the telephone and Kroupa then
    traveled to Farver’s home in Macedonia, Iowa, where he spent
    the night.
    Kroupa and Farver continued to see a lot of each other over
    the next several weeks. Kroupa also continued to see Golyar
    during this time period. On November 9 or 10, 2012, Farver’s
    Explorer was vandalized with spray paint while parked in
    Macedonia. Investigators subsequently learned that Golyar,
    via a Facebook account she had created under a false persona,
    claimed to be in Macedonia during that time period. That impos-
    ter Facebook account had also attempted to “friend” Farver.
    Farver worked in Omaha at a business not far from Kroupa’s
    apartment. Starting Monday, November 12, 2012, she was
    beginning a weeklong project at work that would require her
    to work late hours. Farver arranged for her teenage son to stay
    with her mother and stepfather during that week, and Kroupa
    agreed Farver could spend the week with him at his apartment.
    Farver went to work as planned on Monday, November 12,
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    and left work between 8 and 9 p.m. Her coworkers expected
    her at work the next morning. Farver spent the night with
    Kroupa at his apartment.
    Kroupa left for work on November 13, 2012, at approxi-
    mately 6:20 a.m. At that time, Farver was awake and using her
    laptop computer. No one has seen Farver since.
    3. Farver’s Cell Phone, Debit Card,
    and Facebook Account
    Records from Farver’s employer showed she called in on
    the work project at 6:15 a.m. on November 13, 2012. Other
    records showed Farver logged into her Facebook account from
    Kroupa’s apartment at 6:39 a.m. and logged out at 6:42 a.m.
    At 9:54 a.m., Farver’s Facebook account “unfriended”
    Kroupa. At 10 a.m., Kroupa received a text from Farver’s cell
    phone asking him if he wanted to live together. This surprised
    him, as he thought Farver agreed they were only involved in a
    casual relationship, and he responded, “No.” Twenty seconds
    later, he received an angry text from Farver’s cell phone break-
    ing off the relationship.
    Also on November 13, 2012, Farver’s cell phone texted
    Farver’s mother. The text said Farver had found a new job,
    which surprised her mother. Farver’s mother texted back over
    the course of the next several days and asked questions,
    including when Farver was coming to pick up her son for an
    upcoming family wedding, but received no response. This was
    unusual because Farver and her mother typically had daily
    contact. Farver’s mother reported her daughter missing on
    Friday, November 16.
    On November 15, 2012, Farver’s employer received a
    text from her cell phone, stating that she was resigning and
    was sending “Shanna Golyar” to replace her. Later that day,
    Golyar filled out an online application with the employer. On
    November 16, Farver’s debit card was used to make purchases
    of $167.78 and $226.56 at two separate discount stores in
    Omaha. An item purchased at one of the stores was a shower
    curtain with a distinctive black-and-white floral pattern.
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    STATE v. GOLYAR
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    On November 17, 2012, Farver’s mother received another
    text from Farver’s cell phone. It included a photograph of a
    check for $5,000 made out to Farver and signed by Golyar,
    and asked Farver’s mother to let Golyar into Farver’s home
    to retrieve a bedroom set Golyar had allegedly purchased via
    the check. Farver’s mother was suspicious about the text and
    contacted police. Police had Farver’s service provider “ping”
    her cell phone to attempt to locate it, and the ping showed
    that in the early hours of November 18, the cell phone was
    at an Omaha location not far from Golyar’s residence. Police
    searched for Farver’s cell phone, but it was never found.
    Farver’s Facebook account continued to be active after
    November 13, 2012, making posts and sending messages. Trial
    evidence demonstrated, however, that the account making
    the posts and sending the messages was actually an imposter
    account, created using photographs and information available
    on Farver’s actual Facebook account. The imposter account
    making those posts was linked via digital evidence to Golyar.
    This imposter account attempted to contact both Farver’s
    mother and Farver’s teenage son. Photographs from Farver’s
    original Facebook account were also used by Golyar to make
    online dating profiles in Farver’s name.
    4. H arassment of Golyar
    and K roupa
    Beginning in November 2012 and continuing until approxi-
    mately December 2015, both Golyar and Kroupa began receiv-
    ing frequent harassing texts and emails, purportedly from
    Farver. The texts came from as many as 30 different telephone
    numbers. The emails came from as many as 30 different email
    accounts. Kroupa alone received 50 to 60 such emails per day,
    in addition to frequent texts and missed telephone calls. The
    texts and emails frequently referred to Golyar as a “whore.”
    Golyar reported vandalism to her property, allegedly by
    Farver, on November 23, 2012, and February 12 and April
    1, 2013. Golyar also reported someone had broken into
    her garage prior to November 23, 2012, and stolen checks
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    from her. Kroupa reported vandalism to his property in July,
    October, and December 2013. Many of these acts of vandal-
    ism involved messages referring to Golyar as a “whore.” Each
    time an act of vandalism occurred, Kroupa, Golyar, or both
    would receive a text or email from “Farver” taking respon-
    sibility for the act. The acts of vandalism tended to occur at
    times when Kroupa was becoming less interested in Golyar,
    and the two were drawn back together by their mutual fear or
    dislike of Farver.
    In January 2013, with Kroupa’s consent, the police down-
    loaded information from his cell phone to obtain data related
    to the texts and emails purportedly sent by Farver. At the same
    time, with Golyar’s consent, police also downloaded similar
    information from her cell phone. The downloads were “logi-
    cal” downloads, which did not include data previously deleted
    from the devices.
    5. Todd Butterbaugh
    Todd Butterbaugh met Golyar in September 2010 through
    an online dating site, and they dated until September 2015.
    Butterbaugh understood the relationship was exclusive. During
    the course of that relationship, Butterbaugh helped Golyar
    with her bills, helped her buy a car, let her move into his resi-
    dence with her two children, and cared for her children.
    In January 2013, Butterbaugh began receiving text and
    email messages, purportedly from Farver. In those messages,
    “Farver” explained she was one of Golyar’s friends and
    Golyar had given her Butterbaugh’s contact information in
    case “Farver” ever needed an emergency contact for Golyar.
    When Butterbaugh asked Golyar about the messages, she
    confirmed this and said Farver was her friend. In general, the
    texts and emails between “Farver” and Butterbaugh discussed
    Butterbaugh’s relationship with Golyar. Butterbaugh did not
    learn of Kroupa until Golyar’s cell phone was downloaded
    by the police. At that time, Golyar told Butterbaugh she had
    dated Kroupa before she met Butterbaugh and that they had
    remained friends.
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    Golyar and her two children moved in with Butterbaugh in
    July 2013 and stayed until December 2015 or January 2016.
    During the time she dated and lived with Butterbaugh, Golyar
    did not tell him she was being harassed by Farver or anyone
    else. While staying with Butterbaugh, Golyar had access to
    his Wi-Fi network and several electronic devices, including
    a laptop and an iPod. Golyar and Butterbaugh broke up in
    October 2015.
    6. August 17, 2013, Fire
    Golyar and Kroupa broke off their relationship in early
    August 2013. Shortly thereafter, on Saturday, August 17, at
    8:14 a.m., a fire was reported at a residence Golyar rented in
    Omaha. Golyar told investigators she and her children had left
    the residence at 3 p.m. the day before, and she had returned at
    approximately 7:30 a.m. the following day and discovered the
    fire. She told investigators she was in the process of moving
    from the residence, but they later learned she had been evicted.
    Firefighters found smoke in the home, but the fire had cooled
    and was no longer hot. Golyar’s four pets died in the fire.
    Investigators discovered at least six different points of origin
    of the fire and found accelerants. They quickly determined the
    fire had been set intentionally.
    Golyar and Kroupa both received emails, purportedly from
    Farver, claiming responsibility for the fire. The email to Golyar
    was sent at 12:56 a.m. on August 17, 2013, and said “Farver”
    hoped Golyar and her children burned to death. The email to
    Kroupa was sent at 11:57 p.m. on August 16 and said, “I am
    not lying I set that nasty whores house on fire I hope the whore
    and her kids die in it.” Golyar and Kroupa got back together
    after the fire.
    7. A my Flora and December
    5, 2015, Shooting
    Before Kroupa met Golyar and Farver, he had a long-term
    relationship with Amy Flora and they had two children together.
    Flora and Kroupa remained amicable after their breakup. Flora
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    and the children lived in Omaha, and Golyar met Flora briefly
    when she accompanied Kroupa to pick up his children for par-
    enting time. In 2013, Flora began receiving harassing Facebook
    and text messages purportedly from Farver. Some of the mes-
    sages indicated Flora was being watched.
    Golyar and Kroupa broke up again in mid-November 2015,
    because Kroupa decided to have a “more serious” relationship
    with another woman. Shortly thereafter, on Friday, December
    4, Golyar told police that Flora had been sending her harassing
    messages via Facebook and text. Golyar told police that she
    now suspected it was Flora, not Farver, who had been harass-
    ing her and Kroupa all along. Golyar consented to a download
    of her cell phone so police could review the harassing mes-
    sages. After the download, the investigating officer told Golyar
    he would follow up with Flora on Monday.
    On Saturday morning, Golyar sent the officer additional
    harassing messages she claimed were sent to her by Flora.
    Later that day, at 6:40 p.m., officers were dispatched to a park
    located in a wilderness area in Council Bluffs, Iowa. They
    found Golyar sitting on the ground near the driver’s side of
    the only car in the parking lot. Golyar had been shot in the
    left thigh. Golyar’s accounts of how the shooting occurred var-
    ied significantly over the course of the next several days and
    weeks, but she insisted Flora had shot her.
    Based on Golyar’s statements at the scene, police went to
    Flora’s home. Flora testified that she answered her door to
    find “police standing at [her] door with guns pointed at [her].”
    Flora had been home with her 2-year-old son, and officers
    noticed her car was cold to the touch, indicating it had not
    been used recently. Police questioned Flora and found her
    cooperative.
    Police obtained consent from both Flora and Kroupa to
    download their cell phones on Monday, December 7, 2015.
    The download from Kroupa’s cell phone showed many of the
    emails he received from “Farver” were sent from Butterbaugh’s
    internet protocol (IP) address while Golyar was living with
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    Butterbaugh. A digital forensic expert explained that an IP
    address is like a postal address for an electronic device and
    that it references a device’s access to the internet from a fixed
    location. He testified that if a device accessed a residence’s
    Wi-Fi, the IP address will be that residence.
    In late January or early February 2016, Kroupa moved in
    with Flora over a weekend. The following week, Golyar con-
    tacted police, very upset that Flora had not been charged in
    relation to the shooting. Golyar again consented to a down-
    load of her cell phone after telling police she had received
    additional harassing emails from “Flora.” At this time, police
    generally told Golyar that they suspected Flora in the shoot-
    ing, but needed additional information to charge her. This
    was untrue, because by this time, police suspected Golyar had
    shot herself.
    Golyar then began receiving additional emails from “Flora”
    about Farver’s murder. These emails are dated between
    December 21, 2015, and February 24, 2016. Several of the
    emails confessed to the murder of Farver and the arson of
    Golyar’s residence, and at least one confessed to the shooting
    of Golyar. The emails confessing to killing Farver gave details
    of how the murder occurred. The emails contained various and
    sometimes inconsistent details about the murder, but consist­
    ently described that Farver was stabbed in her vehicle, her
    body was wrapped in a tarp then later burned and put in the
    garbage, her vehicle was cleaned afterward, the killer posed as
    Farver after the killing, and the killer went to Farver’s home
    after the killing. One email describes the interior of Farver’s
    home with precision.
    8. Farver’s Explorer and
    Other Evidence
    The January 8, 2013, download from Golyar’s cell phone
    showed the cell phone had made six calls to Farver’s landline
    on November 6 and 7, 2012, just days before Farver disap-
    peared. Also discovered in the download of Golyar’s cell
    phone was a photograph of Farver’s Ford Explorer. Metadata
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    showed the photograph was taken December 24, 2012. This
    date was after Farver disappeared on November 13 and before
    her Explorer was found parked near Kroupa’s apartment in
    January 2013. The download of Golyar’s cell phone also
    included a video that was uploaded to YouTube, a video-­
    sharing website, by “Farver.” The video showed an apartment
    complex that looked like Kroupa’s. The IP address used to
    access the YouTube account was Butterbaugh’s. The YouTube
    account was created in 2014, after Farver’s disappearance.
    When Farver’s Explorer was initially discovered in Omaha
    in January 2013, it was examined by a crime scene techni-
    cian. At the time, the technician was primarily looking for
    fingerprints and noticed the vehicle was very clean. The only
    fingerprints found were on a mint container in the center cup-
    holder. In September 2015, investigators learned the finger-
    prints were Golyar’s.
    On December 8, 2015, the Explorer was processed again by
    the same technician. This time she was looking for blood, but
    found none. On February 18, 2016, the technician processed
    the vehicle a third time. This time, she removed the cloth seat
    covers and found a large red stain on the passenger side seat
    foam. DNA testing showed it was Farver’s blood.
    9. Search Warrants
    In February 2016, investigators obtained warrants and
    searched the apartment where Golyar was living, as well as the
    residence where she had lived with Butterbaugh. The storage
    unit where Farver’s mother had moved Farver’s belongings
    was searched in March 2016.
    Various items were found at Golyar’s apartment, including
    LG cell phones; a black-and-white floral shower curtain that
    matched the description of the one purchased at the discount
    store with Farver’s debit card on November 16, 2012; a red
    Sony video camcorder; a Nikon Coolpix digital camera; and
    memory cards. Owners’ manuals for the Nikon camera and the
    red Sony camcorder were found among Farver’s belongings
    during the search of the storage unit, along with receipts from
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    a furniture store showing Farver had purchased both items in
    October 2012.
    10. Evidence Linked Golyar to
    “Farver” and “Flora” Emails
    Police also obtained search warrants for a large number of
    email accounts, including 31 from Google, 9 from Yahoo!, and
    5 from Microsoft. A digital forensic examiner gave detailed
    testimony linking Golyar to all relevant messages sent by
    “Farver” after her disappearance from these accounts based on
    IP address and device usage. The forensic examiner explained
    that when using these “imposter” accounts, Golyar often
    attempted to hide her identity by using services that either dis-
    guised her IP address and/or sent messages at times other than
    when they were composed. The forensic examiner also gave
    detailed testimony linking Golyar to all relevant messages sent
    by “Flora” from these accounts based on IP address and device
    usage. At trial, Golyar did not contest the forensic evidence
    linking her to these imposter accounts. Similarly, on appeal,
    Golyar does not contest that the State proved the emails from
    “Farver” and “Flora” were actually authored by Golyar.
    11. Evidence R elating to
    Farver’s Body
    In one of the emails confessing to the murder, “Flora”
    described a “yin-yang” tattoo on Farver’s left hip. This tattoo
    had never been described to the public. Police located Farver’s
    ex-husband and learned that when the two married in 2009,
    they got matching yin-yang tattoos. Farver’s ex-husband’s tat-
    too was on his calf, and Farver’s was on her left hip. Police
    also obtained a photograph of Farver from her mother which
    showed a tattoo of the Chinese symbol for mother on the top
    of Farver’s left foot.
    In February 2017, investigators recovered a tablet computer
    from Kroupa that had been accessible to Golyar while the two
    were dating. The tablet had a memory card known as a micro
    SD card inserted into it. The forensic digital examiner found
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    no existing files on the SD card, but was able to recover many
    deleted ones. These included over 13,000 photographs and
    numerous text messages sent either to or from Golyar.
    The tablet did not have text capabilities, so the examiner
    realized the SD card must have been used with another device
    at one time. He discovered that Golyar’s “LG VS920” cell
    phone, the contents of which were downloaded by police on
    January 8, 2013, was compatible with the SD card. The login
    file for Golyar’s cell phone showed it had used the SD card.
    And 458 of the 13,000 photographs on the card were also on
    Golyar’s cell phone when it was downloaded.
    Several of the photographs on the SD card were images of
    what appears to be a blue and grey or silver tarp, taken from
    various angles. Another photograph depicts a flesh-colored
    object with a yin-yang symbol on it. A forensic video analyst
    compared the yin-yang symbol in this photograph to an image
    of the yin-yang symbol on Farver’s ex-husband’s calf and
    concluded they were very consistent with each other. Another
    photograph depicts a flesh-colored object with a Chinese sym-
    bol on it. The video analyst compared the symbol in this pho-
    tograph to the image of the tattoo on Farver’s left foot provided
    by Farver’s mother, and concluded the images were also very
    consistent with one another.
    A forensic pathologist testified that the photograph depict-
    ing the Chinese symbol was a photograph of the top part of a
    human left foot. The pathologist opined that the foot showed
    signs of decomposition, but admitted she could not tell from
    the photograph how long the foot had been decomposing.
    Golyar waived a jury trial, and she did not testify at the
    bench trial. After the State rested, Golyar moved for a “directed
    motion of acquittal,” which the court overruled. The defense
    did not present any evidence. Golyar was convicted of one
    count of first degree murder and one count of second degree
    arson. She was sentenced to life imprisonment on the murder
    conviction and to 18 to 20 years’ imprisonment on the arson
    conviction, the sentences to run consecutively. She appeals,
    represented by new counsel.
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    II. ASSIGNMENTS OF ERROR
    Golyar assigns and argues that the evidence at trial was
    insufficient to prove the elements of first degree murder and
    second degree arson. She also contends her trial counsel pro-
    vided ineffective assistance by (1) not adequately advising
    her of her right to a jury trial, (2) failing to move to sever the
    charges against her, (3) failing to file any pretrial motions, (4)
    waiving objections to the vast majority of evidence introduced
    by the State, (5) failing to put on any sort of defense and/or
    investigate potential witnesses and alibis, (6) failing to call
    an expert to rebut the pathologist’s testimony, (7) failing to
    adequately advise Golyar on her right to testify at trial, and (8)
    being so unprepared for trial and unfamiliar with the case that
    he referred to Golyar and Farver by the wrong names.
    III. STANDARD OF REVIEW
    [1] In reviewing a criminal conviction for a sufficiency of
    the evidence claim, whether the evidence is direct, circum-
    stantial, 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. 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.1
    [2] Whether a claim of ineffective assistance of trial coun-
    sel can be determined on direct appeal presents a question
    of law, which turns upon the sufficiency of the record to
    address the claim without an evidentiary hearing or whether
    the claim rests solely on the interpretation of a statute or
    constitutional requirement. We determine as a matter of law
    whether the record conclusively shows that (1) a defense
    counsel’s performance was deficient or (2) a defendant was
    1
    State v. Cotton, 
    299 Neb. 650
    , 
    910 N.W.2d 102
    (2018), disapproved on
    other grounds, State v. Avina-Murillo, ante p. 185, 
    917 N.W.2d 865
    .
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    or was not prejudiced by a defense counsel’s alleged defi-
    cient performance.2
    IV. ANALYSIS
    1. Evidence Was Sufficient to Prove
    First Degree Murder
    [3] Golyar argues the State’s evidence was insufficient
    to show she committed first degree murder. In Nebraska, a
    person commits first degree murder if he or she kills another
    person purposely and with deliberate and premeditated mal-
    ice.3 The State concedes the elements of murder were proved
    with circumstantial evidence, but contends it met its bur-
    den of proving each element beyond a reasonable doubt.
    We agree.
    (a) Evidence of Death
    [4,5] In a homicide case, corpus delicti is the body or sub-
    stance of the crime—the fact that a crime has been commit-
    ted.4 It is not established until it is proved that a human being
    is dead and that the death occurred as a result of the criminal
    agency of another.5 Here, Farver’s body was never recov-
    ered. However, the body of a missing person is not required
    to prove the corpus delicti for homicide.6 Instead, courts
    have generally held that circumstantial evidence associated
    with the victim’s disappearance can be sufficient to establish
    the death.7
    This court has specifically addressed such a situation. In
    State v. Edwards,8 we found sufficient circumstantial evidence
    2
    Id.
    3
    Neb. Rev. Stat. § 28-303 (Supp. 2017).
    4
    State v. Edwards, 
    278 Neb. 55
    , 
    767 N.W.2d 784
    (2009).
    5
    Id.
    6
    Id.
    7
    See id.
    8
    
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    of a victim’s death even though her body was never recovered.
    Edwards relied in part on evidence that the victim abruptly
    severed her habits and relationships without explanation, aban-
    doned her personal effects, and did not take any money from
    her bank account after her disappearance. Edwards also found
    other facts were suggestive of an unlawful killing, includ-
    ing that the victim’s blood was found and the suspect had
    attempted to conceal the victim’s disappearance.
    Similar circumstantial evidence of Farver’s death appears
    in the record. Farver has not been seen since November 13,
    2012, when she abruptly ended her contacts with her teenage
    son, her parents, her employer, and her current boyfriend. Her
    money has not been accessed, aside from the use of her debit
    card on November 16, and that use has been linked to Golyar.
    Farver’s blood was found in her vehicle. Overwhelming and
    uncontested evidence showed that Golyar posed as Farver
    online and in social media in an attempt to conceal Farver’s
    disappearance.
    In addition, the record before us contains additional cir-
    cumstantial evidence of Farver’s death. Photographs of what
    appear to be body parts with tattoos identical to Farver’s tat-
    toos were discovered on an SD card used with Golyar’s cell
    phone. And, most importantly, a forensic pathologist testified
    that a photograph on the same SD card of a human left foot,
    which had a tattoo consistent with the one on Farver’s left foot,
    showed signs the foot was in a state of decomposition.
    We conclude a rational trier of fact, viewing the evidence
    in the light most favorable to the State, could have concluded
    the State proved beyond a reasonable doubt that Farver
    is dead.
    (b) Purposely, Deliberate,
    and Premeditated
    Golyar argues that even if there was sufficient evidence
    to prove Farver’s death, the “State did not introduce any
    evidence whatsoever to prove [Golyar] killed . . . Farver
    intentionally . . . and perhaps most significantly, the State’s
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    evidence was insufficient to prove [Golyar] killed [Farver]
    with deliberate and premeditated malice.”9
    [6-12] Purposeful, deliberate, premeditated murder may be
    proved circumstantially.10 In the homicide context, deliberate
    means not suddenly, not rashly, and requires that the defendant
    considered the probable consequences of his or her act before
    doing the act.11 The term “premeditated” means to have formed
    a design to commit an act before it was done.12 One kills with
    premeditated malice if, before the act causing death occurs,
    one has formed the intent or determined to kill the victim
    without legal justification.13 No particular length of time for
    premeditation is required, provided the intent to kill is formed
    before the act is committed and not simultaneously with the
    act that caused the death.14 The design or purpose to kill may
    be formed upon premeditation and deliberation at any moment
    before the homicide is committed.15 The intent with which
    an act is committed is a mental process and may be inferred
    form the words and acts of the defendant and from the circum-
    stances surrounding the incident.16
    A rational fact finder viewing the evidence in the light
    most favorable to the State could have found that Golyar was
    obsessed with Kroupa and thus had a motive to harm Farver.
    The record shows that just days before Farver’s disappear-
    ance, Golyar made six telephone calls to Farver’s landline and
    vandalized Farver’s vehicle, suggesting a premeditated plan to
    harm Farver. Most significantly, however, the record contains
    the emails, authored by Golyar posing as Flora, confessing to
    9
    Brief for appellant at 24.
    10
    See State v. Escamilla, 
    291 Neb. 191
    , 
    864 N.W.2d 376
    (2015).
    11
    
    Id. 12 Id.
    13
    
    Id. 14 Id.
    15
    See 
    id. 16 See
    State v. Sing, 
    275 Neb. 391
    , 
    746 N.W.2d 690
    (2008).
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    the details of the murder. A rational trier of fact could con-
    clude these emails are Golyar’s own statements describing the
    manner of the murder, the motive for the murder, and her state
    of mind in committing the murder.
    The emails authored by Golyar contain considerable evi-
    dence that Golyar killed Farver purposely and with deliberate
    and premediated malice. Some examples from those emails,
    with spelling errors corrected, include:
    “I atta[c]ked her with a kn[i]fe I stabbed her three to
    four times in chest and stomach area. I t[h]en took her out
    and burned her.”
    ....
    “I k[i]lled [Farver] because she . . . wouldn’t leave
    [Kroupa] alone.”
    ....
    “I even went out to [Farver’s] place got some of
    [Farver’s] clothes and other th[i]ngs to make it look like
    she ran away.”
    One email describes driving with Farver in Farver’s vehicle,
    and then stabbing Farver multiple times in the stomach. This
    email states Farver was alive after the stabbing and “begging
    for her life” while Golyar spent the “[w]hole t[i]me watch[i]ng
    the life drain fr[o]m her body.” Another email described the
    yin-yang tattoo on Farver’s left thigh in order to prove “I’m
    not lying about offing that crazy bitch.” Two of the emails
    refer to covering Farver’s body with a tarp.
    Other evidence in the record corroborates some of the state-
    ments made in these emails, including the presence of Farver’s
    blood in her vehicle, evidence of Golyar’s obsession with
    Kroupa, evidence that Golyar accessed Farver’s home and took
    some of her possessions, the existence of the yin-yang tattoo
    on Farver’s left hip, and the photographs of tarp found on the
    SD card.
    A rational fact finder viewing the evidence in the light
    most favorable to the State could conclude the State proved
    Golyar killed Farver purposely and with deliberate and pre-
    meditated malice. There is no merit to Golyar’s claim that the
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    evidence was insufficient to support her conviction for first
    degree murder.
    2. Evidence Was Sufficient
    to P rove A rson
    [13] Golyar also argues there was insufficient evidence to
    support her conviction for second degree arson. As relevant
    here, a person commits arson in the second degree if he or she
    intentionally damages a building or property contained within a
    building by starting a fire or causing an explosion.17
    Here, the evidence clearly established that the August 17,
    2013, fire at Golyar’s residence was intentionally set, as inves-
    tigators discovered multiple origin sources and evidence that
    accelerants were used. On appeal, Golyar argues only that there
    was not sufficient evidence to prove she was the arsonist and
    that any such evidence was circumstantial.
    [14] It is true the evidence linking Golyar to the arson is
    circumstantial, but circumstantial evidence is sufficient to sup-
    port a conviction for arson if such evidence and the reason-
    able inferences that may be drawn therefrom establish guilt
    beyond a reasonable doubt.18 Viewing the evidence in the light
    most favorable to the State, a rational finder of fact could
    conclude the circumstantial evidence established Golyar was
    the arsonist.
    There is no dispute Golyar had access to the property that
    was intentionally burned and had a motive to commit the
    arson. The arson was part of a pattern of vandalism purport-
    edly committed by Farver but ultimately linked to Golyar via
    the uncontested digital forensic evidence. These acts of van-
    dalism tended to occur at times when Kroupa was becoming
    less interested in Golyar and were designed to capitalize on
    a mutual fear of Farver and draw Kroupa back. Golyar and
    Kroupa had broken off their relationship just before the arson,
    and after the arson, they reunited. And, most significantly,
    17
    See Neb. Rev. Stat. § 28-503 (Reissue 2016).
    18
    State v. McDonald, 
    230 Neb. 85
    , 
    430 N.W.2d 282
    (1988).
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    Golyar, posing as Flora, later confessed to committing the
    arson in two emails.
    We conclude the circumstantial evidence and reasonable
    inferences therefrom were sufficient to support the arson con-
    viction. Golyar’s arguments to the contrary are without merit.
    3. Ineffective Assistance of Counsel
    [15] Golyar claims her trial counsel provided ineffective
    assistance in several respects. She is represented on direct
    appeal by different counsel than she had during 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 in a subsequent postconvic-
    tion proceeding.19
    [16,17] An ineffective 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
    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.20 The fact that an ineffec-
    tive assistance of counsel claim is raised on direct appeal does
    not necessarily mean that it can be resolved.21 The determining
    factor is whether the record is sufficient to adequately review
    the question.22
    [18,19] Whether a claim of ineffective assistance of trial
    counsel may be determined on direct appeal is a question of
    law.23 In reviewing claims of ineffective assistance of counsel
    19
    See State v. Loding, 
    296 Neb. 670
    , 
    895 N.W.2d 669
    (2017).
    20
    
    Id. 21 Id.
    22
    
    Id. 23 State
    v. Vanness, 
    300 Neb. 159
    , 
    912 N.W.2d 736
    (2018); State v. Mora,
    
    298 Neb. 185
    , 
    903 N.W.2d 244
    (2017).
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    on direct appeal, an appellate court decides only whether the
    undisputed facts contained within the record are 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.24
    (a) Waiver of Jury Trial
    Golyar claims her trial counsel was ineffective in advising
    her to waive her right to a jury trial. The record shows she
    waived this right not once, but twice.
    Golyar was originally charged with only first degree murder.
    At her arraignment, she entered a plea of not guilty and asked,
    on the record, to waive her right to a jury. The court advised
    her of the constitutional right to a jury trial and explained the
    consequences of waiving such right. Golyar stated that she
    understood, and wanted to waive her right to a jury and pro-
    ceed with a bench trial. She told the court she had discussed
    her desire to waive a jury with her attorney, and she confirmed
    that no one had promised her anything or forced or threatened
    her in any way to get her to waive a jury trial.
    The State subsequently amended the information to add
    the second degree arson charge. At her arraignment on the
    amended information, Golyar pled not guilty and again asked
    to waive a jury trial. The court again advised her on the record
    of her right to a jury trial and the consequences of waiving
    such right. Golyar again stated she understood and wished to
    waive a jury. She affirmatively stated that she had discussed
    her desire to waive a jury with her attorney and that no one had
    promised her anything or forced or threatened her in any way
    to get her to waive a jury trial.
    [20,21] The decision to waive a jury trial is ultimately and
    solely the defendant’s, and, therefore, the defendant must bear
    the responsibility for that decision.25 Counsel’s advice to waive
    a jury trial can be the source of a valid claim of ineffective
    24
    
    Id. 25 State
    v. Golka, 
    281 Neb. 360
    , 
    796 N.W.2d 198
    (2001).
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    assistance only when (1) counsel interferes with the client’s
    freedom to decide to waive a jury trial or (2) the client can
    point to specific advice of counsel so unreasonable as to vitiate
    the knowing and intelligent waiver of the right.26
    On appeal, Golyar does not suggest her attorney interfered
    with her freedom to decide whether to waive a jury, but con-
    tends only that trial counsel “did not adequately advise [her]
    regarding her right to a jury trial.”27 It is clear from the record
    that she discussed the waiver with her counsel, but beyond
    characterizing counsel’s advice on that issue as being inad-
    equate, she offers no specifics about the advice counsel gave
    or why it was unreasonable. Golyar has thus failed to allege
    this claim of ineffective assistance with sufficient particularity.
    Moreover, because she concedes the court fully advised her of
    the right to a jury trial and the consequences of waiving that
    right, the record affirmatively refutes any showing of preju-
    dice. This claim of ineffective assistance has no merit.
    (b) Motion to Sever
    Golyar argues her trial counsel was ineffective for failing to
    move, prior to trial, to sever the arson charge from the mur-
    der charge. Pursuant to Neb. Rev. Stat. § 29-2002(1) (Reissue
    2016):
    Two or more offenses may be charged in the same indict-
    ment, information, or complaint in a separate count for
    each offense if the offenses charged, whether felonies or
    misdemeanors, or both, are of the same or similar charac-
    ter or are based on the same act or transaction or on two
    or more acts or transactions connected together or consti-
    tuting parts of a common scheme or plan.
    And pursuant to § 29-2002(3), offenses properly joined
    under § 29-2002(1) may be tried separately if the court finds
    either the defendant or the State “would be prejudiced by a
    joinder.”
    26
    
    Id. 27 Brief
    for appellant at 33.
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    Golyar argues both that the murder and arson charges were
    not properly joinable under § 29-2002(1) and that, even if
    they were, the joinder resulted in prejudice to her. She sug-
    gests that if her trial counsel had asked, the trial court would
    have ordered separate trials. We find the record is sufficient to
    review and reject this claim.
    [22] The State’s theory was that the arson was part of
    Golyar’s common scheme or plan to cover up Farver’s murder.
    As such, the charges were properly joined under § 29-2002(1).
    Had trial counsel moved to sever, Golyar would have had the
    burden to show compelling, specific, and actual prejudice from
    the joinder.28 Prejudice from joinder cannot be shown if evi-
    dence of one charge would have been admissible in a separate
    trial of another charge.29
    The record demonstrates that if the murder had been charged
    separately, evidence of the arson would have been admissible
    at that trial. The arson was part of Golyar’s scheme both to
    cover up Farver’s murder and to frame Flora for Farver’s mur-
    der. There is no merit to this claim of ineffective assistance of
    trial counsel.
    (c) Pretrial Motions
    Golyar argues her trial counsel was ineffective because
    he “failed to file any pretrial motions” and “failed to move
    to exclude any of the State’s anticipated evidence.”30 Golyar
    offers no specifics about what pretrial motions should have
    been filed, or what evidence should have been excluded, other
    than to remark that counsel did not file a motion to exclude the
    photographs found on the memory card depicting flesh-colored
    objects with tattoos and the pathologist’s testimony about
    decomposition.
    But Golyar concedes, and the record confirms, that trial
    counsel made an oral motion to exclude the photograph
    28
    State v. Cotton, supra note 1.
    29
    See 
    id. 30 Brief
    for appellant at 35 (emphasis in original).
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    depicting what appears to be a foot with a yin-yang tattoo and
    the pathologist’s testimony with respect to that photograph.
    In response, the court indicated it would make a determina-
    tion on admissibility at the time of trial, after hearing foun-
    dational evidence. At trial, Golyar objected to the patholo-
    gist’s opinion, arguing the pathologist could not testify with
    a reasonable degree of certainty that the photograph was of a
    decomposing foot. That objection was overruled. The patholo-
    gist then testified the changes in the skin and the coloring in
    the photograph were “comparable” or “‘compatible with’” a
    decomposing human body.
    The record thus refutes Golyar’s claim that there was no
    request to exclude the photograph and the pathologist’s testi-
    mony. And to the extent Golyar is attempting to raise claims
    that her trial counsel should have filed other pretrial motions
    or sought to exclude other evidence, we conclude Golyar has
    failed to allege such claims with sufficient particularity.
    (d) Lack of Objections
    Prior to trial, the State filed a motion in limine seeking a
    ruling on the admissibility of evidence regarding Golyar’s
    actions relating to property damage, threats, the shooting at the
    park, possession of stolen property, and harassment, claiming
    it was all inextricably intertwined with the charged crimes or,
    alternatively, was admissible rule 404 evidence.31 Trial counsel
    initially resisted the motion, and the State offered evidence in
    support of admissibility. Before the court ruled on the motion
    in limine, the parties agreed that all of the evidence at issue was
    admissible either as evidence that was inextricably intertwined
    with the charged criminal acts or as evidence of consciousness
    of guilt. Golyar argues this was ineffective assistance.
    The record on appeal is sufficient to review and reject this
    claim. All of the evidence referenced by Golyar was either
    inextricably intertwined with the charged crimes or evidence
    of consciousness of guilt, and thus admissible. Trial counsel
    31
    See Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2016).
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    could not have performed deficiently by failing to object to
    admissible evidence.32
    (e) Failure to Investigate
    Golyar claims her trial counsel was ineffective for failing to
    investigate potential witnesses or alibis. She does not, however,
    identify any potential witnesses or alibis or specify what their
    testimony would have been.
    An ineffective 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
    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.33 We find Golyar’s allega-
    tions are not sufficient to raise this claim on direct appeal,
    because a potential postconviction court could not identify if
    a particular failure to call a witness claim or pursue an alibi
    claim was the same one raised on direct appeal.34
    (f) No Rebuttal of Pathologist
    Golyar claims trial counsel was deficient in not investigat-
    ing or calling an expert to rebut the pathologist’s testimony.
    We find this assertion is specific enough to raise the claim of
    ineffective assistance on direct appeal, but conclude the record
    on appeal is insufficient to allow us to resolve it.
    (g) Advice Not to Testify
    [23-25] Golyar claims her trial counsel was ineffective in
    advising her not to testify at the bench trial. A defendant has
    a fundamental constitutional right to testify.35 The right to
    32
    See State v. Custer, 
    298 Neb. 279
    , 
    903 N.W.2d 911
    (2017).
    33
    State v. Loding, supra note 19.
    34
    See State v. Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
    (2014).
    35
    U.S. Const. amend VI; State v. Johnson, 
    298 Neb. 491
    , 
    904 N.W.2d 714
          (2017).
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    testify is personal to the defendant and cannot be waived by
    defense counsel’s acting alone.36 Defense counsel bears the
    primary responsibility for advising a defendant of his or her
    right to testify or not to testify, of the strategic implications of
    each choice, and that the choice is ultimately for the defendant
    to make.37
    [26] Defense counsel’s advice to waive the right to testify
    can present a valid claim of ineffective assistance of coun-
    sel in two instances: (1) if the defendant shows that counsel
    interfered with his or her freedom to decide to testify or (2) if
    counsel’s tactical advice to waive the right was unreasonable.38
    Golyar does not claim trial counsel interfered with her free-
    dom to decide whether to testify. Instead, she claims counsel
    “failed to advise [her] adequately.”39 She argues she had no
    prior criminal record and thus there was no risk of having that
    used against her if she testified. She also contends that by not
    testifying, she was denied the opportunity to explain her mul-
    tiple instances of harassing and impersonating others. But she
    makes no allegations as to how counsel deficiently advised her
    regarding these matters or how his advice not to testify was
    unreasonable. As such, she has failed to allege deficient per-
    formance with enough particularity and has not properly raised
    this claim on direct appeal.
    (h) Mixing Up Names
    Finally, Golyar claims her counsel was “so unprepared and
    unfamiliar with the issues”40 that he often used the wrong
    names when referring to Golyar and Farver. A review of
    the record shows counsel did slip up at times, and at least
    twice called Farver by the wrong name. But it is also true
    36
    State v. Johnson, supra note 35.
    37
    See 
    id. 38 Id.
    39
    Brief for appellant at 38.
    40
    
    Id. - 515
    -
    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. GOLYAR
    Cite as 
    301 Neb. 488
    that throughout the 10-day bench trial, a myriad of names
    and personas were introduced and discussed. A review of the
    record, in context, shows counsel’s use of the wrong name
    was infrequent and inadvertent. Moreover, Golyar does not
    contend, and the record does not suggest, that the court or the
    issues were confused by counsel’s occasional reference to the
    wrong name.
    We conclude this claim has been sufficiently raised, and
    the record on appeal is adequate for us review it. We fur-
    ther conclude the record refutes this claim of ineffective
    assistance.
    V. CONCLUSION
    For the foregoing reasons, we affirm the convictions and
    sentences.
    A ffirmed.
    Miller-Lerman, J., not participating.