State v. Hibler , 302 Neb. 325 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/17/2019 09:08 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    STATE v. HIBLER
    Cite as 
    302 Neb. 325
    State of Nebraska, appellee, v.
    David J. Hibler, Jr., appellant.
    ___ N.W.2d ___
    Filed March 1, 2019.    No. S-18-005.
    1. Constitutional Law: Statutes: Appeal and Error. The constitutionality
    of a statute presents a question of law, which an appellate court indepen-
    dently reviews.
    2. Rules of Evidence: Appeal and Error. An appellate court reviews
    for abuse of discretion a trial court’s evidentiary rulings on relevance,
    whether the probative value of evidence is substantially outweighed by
    the danger of unfair prejudice, and the sufficiency of a party’s founda-
    tion for admitting evidence.
    3. 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.
    4. 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. 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 conclu-
    sively determine whether counsel did or did not provide effective assist­
    ance and whether the defendant was or was not prejudiced by counsel’s
    alleged deficient performance.
    5. Constitutional Law: Statutes: Presumptions. A statute is presumed
    to be constitutional, and all reasonable doubts are resolved in favor of
    its constitutionality.
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    6. Constitutional Law: Statutes: Waiver. The proper procedure for rais-
    ing a facial constitutional challenge to a criminal statute is to file a
    motion to quash, and all defects not raised in a motion to quash are
    taken as waived by a defendant pleading the general issue.
    7. Constitutional Law: Statutes: Standing: Proof. Standing to challenge
    the constitutionality of a statute under the federal or state Constitution
    depends upon whether one is, or is about to be, adversely affected by
    the language in question; to establish standing, the contestant must show
    that as a consequence of the alleged unconstitutionality, the contestant
    is, or is about to be, deprived of a protected right.
    8. Constitutional Law: Equal Protection. The Nebraska Constitution and
    the U.S. Constitution have identical requirements for equal protection
    challenges. The Equal Protection Clause requires the government to
    treat similarly situated people alike.
    9. Equal Protection. The Equal Protection Clause does not forbid clas-
    sifications; it simply keeps governmental decisionmakers from treating
    differently persons who are in all relevant respects alike.
    10. Legislature: Equal Protection. If a legislative classification involves
    either a suspect class or a fundamental right, courts will analyze the
    classification with strict scrutiny.
    11. Equal Protection: Words and Phrases. A suspect class is one that has
    been saddled with such disabilities or subjected to such a history of pur-
    poseful unequal treatment as to command extraordinary protection from
    the majoritarian political process.
    12. Equal Protection. Age itself is not a suspect classification for equal
    protection purposes.
    13. ____. When a classification created by state action does not jeopardize
    the exercise of a fundamental right or categorize because of an inher-
    ently suspect characteristic, the Equal Protection Clause requires only
    that the classification rationally further a legitimate state interest.
    14. Equal Protection: Proof. Under the rational basis test, whether an equal
    protection claim challenges a statute or some other government act or
    decision, the burden is upon the challenging party to eliminate any rea-
    sonably conceivable state of facts that could provide a rational basis for
    the classification.
    15. Equal Protection. Under the rational basis test, the Equal Protection
    Clause is satisfied as long as (1) there is a plausible policy reason for
    the classification, (2) the legislative facts on which the classification is
    based may rationally have been considered to be true by the governmen-
    tal decisionmaker, and (3) the relationship of the classification to its goal
    is not so attenuated as to render the distinction arbitrary or irrational.
    16. Constitutional Law: Criminal Law: Sentences: Legislature: Courts.
    The Legislature is clothed with the power of defining crimes and
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    misdemeanors and fixing their punishment; and its discretion in this
    respect, exercised within constitutional limits, is not subject to review
    by the courts.
    17.   Constitutional Law: Criminal Law: Sentences. With regard to the
    mandatory minimum sentence, the guarantees of due process and equal
    protection, as well as the prohibition against cruel and unusual punish-
    ment, do not require individual sentencing in noncapital cases.
    18.   Witnesses: Impeachment. As a general rule, a witness makes an incon-
    sistent or contradictory statement if the witness refuses to either deny or
    affirm that he or she made the prior statement, or if the witness answers
    that he or she does not remember whether he or she made the prior
    statement.
    19.   Evidence: Hearsay. Prior extrajudicial statements of a witness may be
    received into evidence for the limited purpose of assisting the jury in
    ascertaining the credibility of the witness, but unless they are otherwise
    admissible, they may not be considered as substantive evidence of the
    facts declared in the statements.
    20.   Trial: Witnesses: Impeachment. It is sometimes difficult to deter-
    mine whether a question attempts impeachment or rises to the level
    of a charge of recent fabrication, and it is not an abuse of discretion
    to allow the question where the impeachment is susceptible to either
    interpretation.
    21.   Hearsay: Time. A declarant’s consistent out-of-court statements are
    permitted to rebut a charge of recent fabrication, improper influence, or
    improper motive when those statements were made before the charge of
    recent fabrication, improper influence, or improper motive.
    22.   Sexual Assault: Proof: Words and Phrases. The slightest intrusion
    into the genital opening is sufficient to constitute penetration, and such
    element may be proved by either direct or circumstantial evidence.
    23.   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.
    24.   Effectiveness of Counsel: Postconviction: Records: Appeal and
    Error. An ineffective assistance of counsel claim is raised on direct
    appeal when the claim alleges deficient performance with enough par-
    ticularity for (1) an appellate court to make a determination of whether
    the claim can be decided upon the trial record and (2) a district court
    later reviewing a petition for postconviction relief to recognize whether
    the claim was brought before the appellate court.
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    25. Effectiveness of Counsel: Records: Appeal and Error. On direct
    appeal, allegations of how the defendant was prejudiced by trial coun-
    sel’s allegedly deficient conduct are unnecessary in an appellate court
    determination of whether the trial record supports the assigned error.
    26. ____: ____: ____. 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.
    Appeal from the District Court for Lancaster County: Darla
    S. Ideus, Judge. Affirmed.
    Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
    Douglas J. Peterson, Attorney General, and Siobhan E.
    Duffy for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    I. NATURE OF CASE
    David J. Hibler, Jr., appeals his convictions and sentences
    in the district court for Lancaster County, following a jury
    trial, for first degree sexual assault of a child, incest with a
    person under 18 years of age, and third degree sexual assault
    of a child. On appeal, Hibler argues that first degree sexual
    assault of a child under Neb. Rev. Stat. § 28-319.01(1)(a) and
    (2) (Reissue 2016) is unconstitutional, because the statute sub-
    jects the defendant to a mandatory minimum sentence based
    solely on the ages of the victim and perpetrator. We conclude
    that the age classifications defining sexual assault of a child
    in § 28-319.01(1)(a) and associated mandatory sentence in
    § 28-319.01(2) are not unconstitutional. We also determine
    that the district court did not abuse its discretion when it made
    various evidentiary rulings and that the evidence was sufficient
    to support Hibler’s convictions. We reject several of Hibler’s
    claims of ineffectiveness of trial counsel but do not reach the
    merits of various other ineffectiveness claims. For the reasons
    explained below, we affirm.
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    II. STATEMENT OF FACTS
    The State charged Hibler by information with one count of
    first degree sexual assault of a child, § 28-319.01(2); one count
    of incest with a person under 18 years of age, Neb. Rev. Stat.
    § 28-703 (Reissue 2016); and one count of third degree sexual
    assault of a child, Neb. Rev. Stat. § 28-320.01(3) (Reissue
    2016). Before trial, Hibler filed a motion to quash based on his
    claim that the provisions of § 28-319.01(2) “violate [Hibler’s]
    constitutional rights under the Fifth, Fourteenth and Eighth
    Amendment[s] to the United States Constitution and the cor-
    relative provisions of the Nebraska Constitution.” At a hearing
    on the motion to quash, Hibler’s counsel noted the motion
    was being filed pursuant to State v. Stone, 
    298 Neb. 53
    , 
    902 N.W.2d 197
    (2017), which states that to preserve a constitu-
    tional challenge to the mandatory minimum sentence which
    could be imposed, a motion to quash must be filed. The motion
    was overruled.
    1. Trial
    (a) Testimony of J.H.
    J.H., the victim, was 13 years old when she testified as the
    State’s first witness. J.H. is the oldest of the three biological
    children of Hibler and his former wife, A.H. J.H. testified that
    she was 11 years old during the events alleged in the informa-
    tion. She testified that her parents were still married in 2015,
    but she thought they were now divorced.
    J.H. testified that Hibler began giving her massages when
    she was 11 years old, following a Soap Box Derby win in
    2015. Hibler would massage her when they would run and bike
    together. Initially, Hibler touched only J.H.’s back and legs
    when he massaged her.
    J.H. stated that one night when she was 11 years old, Hibler
    began to massage her “butt” during a massage in A.H. and
    Hibler’s bedroom. J.H. testified that beginning in October
    2015 and continuing through January 2016, Hibler touched
    her inappropriately more than one time, but less than 10 times.
    J.H. believed the inappropriate touching occurred about four or
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    five times. J.H. testified specifically that one incident occurred
    at her grandfather’s home, one incident occurred in J.H.’s
    bedroom, and the other incidents were in the bedroom Hibler
    shared with A.H., J.H.’s mother.
    The evidence showed that one of J.H.’s brothers has cancer
    and that A.H. would take him out of state once a month for
    treatment. J.H. stated A.H. and her brother were out of town
    when Hibler massaged her backside. J.H. was lying on her
    stomach on Hibler’s bed, and she was not wearing any clothes,
    but had a towel over her body.
    J.H. testified that another incident occurred during the morn-
    ing in J.H.’s room. J.H. had a pain in her chest and Hibler
    told her to let him give her a massage. He told her to remove
    her bra so he could massage her chest. J.H. indicated that she
    stated no but that Hibler stated it “would make it better,” so
    J.H. removed her bra. Hibler then massaged her breasts for
    possibly 5 or 10 minutes. J.H. was sitting on her bed, and
    Hibler was sitting next to her.
    J.H. also testified that Hibler touched her genitals multiple
    times. Sometime in 2015, J.H. and Hibler were spending the
    night at her grandfather’s home in Omaha, Nebraska; J.H.
    believed A.H. and her brother were not at the home. J.H. stated
    that she was lying on her side while Hibler was massaging
    her from behind and that at some point, he put his hand in her
    underwear “and started touching [her] vagina.” J.H. described
    that it felt like a “swiping motion” and compared it to “when
    a girl goes to the bathroom and she takes the toilet paper, she
    wipes. She doesn’t like stick it up her vagina, doesn’t like just
    . . . pat it. She swipes it and then puts it in the toilet.” J.H.
    testified that she could feel his fingers “moving up and down
    [her] vagina” and that it lasted a long time. She testified that
    she did not tell anyone, because she was scared.
    J.H. testified that Hibler also touched her genitals with the
    “swiping motion” at the family home in Lincoln, Nebraska.
    J.H. thought that it occurred about three times and that it hap-
    pened when A.H. and her brothers were out of town for her
    brother’s treatment. J.H. described the swiping episodes as
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    follows: she would be half asleep but still aware of her sur-
    roundings, then Hibler would put his hand under her underwear
    and start touching her vagina in a swiping motion.
    J.H. described an incident which occurred with Hibler in
    his bedroom during which Hibler asked J.H. to wear a pair of
    A.H.’s purple underwear, which tied on the sides. According
    to J.H., Hibler was massaging her and then had her put on
    the underwear that tied and began massaging her legs. At one
    point, Hibler untied the sides of the underwear and massaged
    her legs right next to her vagina. Hibler looked at her vagina,
    though he did not touch her vagina at that time. J.H. testified
    that when Hibler told her to put the underwear on, he had
    stated something about them making it “easier.”
    J.H. also testified about another incident which occurred in
    Hibler’s bedroom in the early morning. J.H. believed that just
    she and Hibler were home and that A.H. and her brothers were
    probably out of state. During this incident, J.H. was asleep
    when Hibler began to massage her. When Hibler touched her,
    he performed the swiping motion and also put his hand over
    her vagina “like as if his hand were a bowl and he were put-
    ting it over [her] vagina.” J.H. testified that Hibler “touched
    [her] vagina” and did so “more towards the top of [her] vagina
    where there is this thing.” J.H. stated that during the previous
    episodes when Hibler was swiping, he would touch the labia,
    but “this time it was more towards the top of that” area but that
    she did not know the name of the area. When it was just the
    swiping motion, J.H. usually could feel just Hibler’s fingers,
    but “this time [she] felt his whole hand.” He “touched the top
    of [her] vagina” with “maybe two or three fingers,” and “[h]is
    fingers were moving.” This continued for between 15 to 30
    minutes. J.H. stated that her eyes were closed but that she was
    not asleep. J.H. stated that this was the last incident and that it
    occurred around December or January. She knew that the inci-
    dent did not happen in February.
    J.H. testified that, initially, she did not tell anyone about
    this last incident, because she was scared and did not know
    what would happen to her and her family. However, after
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    her friends realized something was wrong, she met them at
    the school playground and told them in February. J.H. asked
    her friends not to tell anybody, but the mother of one of her
    friends learned of the alleged assaults and called the school.
    The principal asked J.H. to come to the office and asked her
    some questions. J.H. did not tell A.H. prior to when the police
    became involved, because she stated, “I wasn’t sure if she
    would believe me or - I actually wanted to wait until we got
    a new house, because then I thought at the time, I thought it
    would be easier . . . .” She stated that she “tried to tell [A.H.]
    There were times, you know, that I would say, let’s go for a
    ride, and I would want to tell her. Then I would chicken out
    because it is not something that you can walk up to somebody
    and say this happened.”
    (b) Testimony of A.H.
    A.H. testified that Hibler was born in November 1980.
    A.H. married Hibler in 2002 and had three biological children
    with him. A.H. testified that there were times she went with
    her son for his treatments out of state between October 2015
    and March 2016. The day visits occurred about once a month
    and often on Fridays. In addition, A.H. recalled that there
    were two or three other times when she took her son out of
    state for treatment and that they spent the night out of state.
    On those occasions, Hibler stayed home with J.H. and their
    other son.
    A.H. testified that J.H. “loved to give pedicures” and that
    she liked to give massages and receive them. A.H. testified it
    would not have been unusual for Hibler to massage J.H. after
    running or stretching. A.H. stated that before the police came
    to her workplace on March 31, 2016, to tell her that J.H. had
    been interviewed, J.H. had not told her anything regarding
    Hibler’s actions.
    A.H. testified that she spoke with Hibler in person on sev-
    eral occasions about J.H.’s accusations. They also discussed
    the trouble in their marriage. According to A.H., Hibler wanted
    A.H. to convey to J.H. that Hibler believed J.H.’s recollection
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    was a misunderstanding of what had occurred. According to
    A.H., Hibler initially admitted touching J.H. on just one occa-
    sion. A.H. testified that Hibler stated this event occurred when
    he took J.H. home one night; she was asleep, and he did not
    want to carry J.H. up the stairs, so he took J.H. to A.H. and
    Hibler’s bed. Hibler told A.H. that “he took some melatonin
    and rolled over and thought [J.H. was A.H.] and he touched
    her.” Hibler stated that “by the time he realized what he had
    done, the damage was done,” but that it was only one time and
    wondered if A.H. could forgive him and try to make their mar-
    riage work.
    A.H. testified that Hibler wanted A.H. to encourage J.H. to
    change her story and tell the police that she took melatonin
    and had some “really bad dreams.” If this became J.H.’s story,
    people would believe her, they could still buy the house they
    wanted, they could have more children, and they could try to
    start over. He urged A.H. to tell J.H. that “it was just a little
    mistake and it didn’t have to ruin everything.”
    A.H. testified regarding another conversation she had with
    Hibler on April 26, 2016, when she and Hibler sat in a truck
    and spoke for a “[c]ouple hours maybe.” Hibler initially stated
    that they could possibly record the conversation, but then
    changed his mind, so A.H. was only able to record about
    7 seconds.
    In this conversation, Hibler repeated to A.H. what he had
    said the night before to the effect that he was sorry and
    ashamed, that there was no good excuse for what he had done,
    and that there was nothing that he could say or do that would
    excuse what had happened. A.H. testified that at this point,
    Hibler indicated there had been several episodes which started
    around October 2014, when A.H. was at the hospital with
    their son. A.H. testified that Hibler told her the first episode
    occurred at his father’s home, sometime in October 2014.
    Hibler indicated that when J.H. had complained of pain in
    her hip flexor, he had rubbed her thighs and her hip, and she
    then fell asleep. Hibler described that there was a “little gap”
    between J.H.’s underwear and skin and that he put his fingers
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    in the gap and felt that “she was wet” and it was “arousing
    for him.” A.H. stated Hibler told her he then pulled his hand
    back, resumed massaging her thigh and hip but then repeatedly
    slipped his fingers under her underwear while J.H. slept. A.H.
    testified that Hibler told her that at one point, he gave J.H. a
    frontal massage, but that it was really innocent, and that J.H.
    was having panic attacks or shortness of breath and would get
    a really sharp pain on her side, in response to which Hibler
    offered to rub her ribs. Hibler told her that J.H. had taken off
    her shirt, but the pain was in the area covered by her sports bra,
    so Hibler told her to take the sports bra off, and he just rubbed
    her muscles there, but that it was not sexual.
    In connection with another incident, Hibler told A.H. that
    he and J.H. were home and J.H. asked to sleep in Hibler and
    A.H.’s bed, which was not uncommon. J.H. indicated she was
    scared and crying, so she slept in their room. A.H. testified
    that Hibler stated that either he or J.H. asked for a hug, and
    Hibler rolled J.H. on top of him and gave her a hug. Hibler
    became aroused, so he put J.H. back on the bed. A.H. testified
    that Hibler stated, “He thought something was wrong with him
    and he did not know what to do about it.” A.H. stated Hibler
    told her he tried watching pornography, including “fake daddy-
    daughter porn,” to cure the problem, but that did not help
    and in fact made things worse. Hibler stated that J.H. would
    sometimes ask for a foot massage, Hibler would work his way
    up to the hip, and Hibler would become aroused; he knew it
    was wrong. Hibler stated that this pattern became compulsive
    for him.
    A.H. testified that when she asked Hibler how many epi-
    sodes had happened, Hibler told her “probably a handful.” He
    said that the last time was probably in January and that it was
    different. Regarding this episode, Hibler told A.H. that J.H.
    was in A.H. and Hibler’s bedroom and that when Hibler asked
    J.H. if she wanted a massage, she said she did. Hibler described
    this episode to A.H. as follows: Hibler had J.H. take her clothes
    off, “handed her a thong to put on,” and had her lay down on
    the bed and put a sheet over her like at a massage parlor. At
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    some point after J.H. fell asleep, Hibler put his fingers under
    her underwear, but she “wasn’t wet”; he grabbed some “lotion
    or goop or lube or something” and put it on her, stroked her
    and cupped her genital area, touched her and massaged “the
    hole,” and then massaged her clitoris. Hibler indicated to A.H.
    that he knew his actions “would make [A.H.] wet, so he was
    wondering if that would work” for J.H. Hibler indicated that he
    did not know how long his actions lasted, but that ultimately he
    “jacked off” and then immediately vomited in a garbage can.
    He stated that he realized he had made a “really bad mistake.”
    He stated that he did not know what to do, that he tried to talk
    to J.H. the next day but that she was not talking to him, and
    that he knew something was wrong but did not know how to
    approach the subject.
    A.H. testified that Hibler asked her to explain to J.H. the
    consequences of telling her therapist what Hibler had done,
    including what could happen financially to A.H. if Hibler were
    to go to jail; that Hibler was not going to get any “help” in
    prison; and that if A.H. did go to the police, Hibler “would
    never admit to anything, ever.” A.H. testified that she told
    Hibler to take a plea so that he could still retain a relationship
    with their sons and that Hibler told her he would never admit
    to the allegations involving J.H. and that he would try to prove
    his innocence.
    A.H. stated that sometime in April 2016, she was sorting
    laundry with J.H. and that when J.H. saw a pair of A.H.’s
    underwear which tied at the sides, J.H. was upset and wanted
    to get rid of them.
    (c) Testimony of Other Witnesses
    The State called several witnesses: police officers, investiga-
    tors, a teacher, the principal from J.H.’s school, a psychologist,
    and a friend of J.H. The friend testified that J.H. “told us one
    of her family members touched her inappropriately and we
    asked who and she said she could not say.” She also testified
    that J.H. later “whispered in our ears one time during class that
    it was her dad.” Trial counsel did not object to this testimony.
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    Although J.H. told her friends not to tell anyone, the friend told
    her mother, who told the principal of their school.
    (d) Hibler’s Defense
    Hibler’s defense at trial was generally that A.H. may have
    implanted memories of sexual assault in J.H. at a time when
    J.H. was vulnerable, because she was experiencing problems at
    school, bullying, mental health issues, and estrangement from
    A.H. In addition, her brother, who had cancer, had become
    the center of attention. There was evidence that A.H. and J.H.
    watched a movie about child sexual abuse, and Hibler claimed
    that A.H. used this viewing as a vehicle to plant the idea in
    J.H.’s mind that she, too, had been sexually assaulted.
    Hibler highlighted the fact that J.H. did not initially come
    forward on her own about the alleged assaults and told her
    friends not to tell anybody. Hibler told the jury that A.H. and
    Hibler were having trouble in their marriage and that A.H. had
    filed for divorce, claiming Hibler had confessed to her. Hibler
    believes that this purported confession would be used by A.H.
    as leverage to gain custody of the children and overcome nega-
    tive facts about A.H.’s life.
    Hibler’s father testified on Hibler’s behalf. He testified that
    Hibler and J.H. never stayed at his home alone in the entire
    time he lived at the house and that “[i]t’s always been the
    whole family.”
    2. Verdict and Sentencing
    On October 27, 2017, a jury found Hibler guilty of first
    degree sexual assault of a child, incest with a person under 18
    years of age, and third degree sexual assault of a child. The
    district court imposed sentences on December 20. As to the
    conviction of first degree sexual assault of a child, a Class IB
    felony, Hibler received a sentence of 20 to 25 years’ imprison-
    ment. With regard to the conviction of incest with a person
    under 18 years of age, a Class IIA felony, Hibler received
    a sentence of 18 to 20 years’ imprisonment. With regard to
    the conviction of third degree sexual assault of a child, a
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    Class IIIA felony, Hibler received a sentence of 2 to 3 years’
    imprisonment.
    The district court ordered that Hibler serve the sentences
    concurrently with one another, and Hibler received 53 days’
    credit toward his sentences.
    Hibler appealed, and gave notice under Neb. Ct. R. App. P.
    § 2-109(E) (rev. 2014) that his appeal includes a challenge to
    the constitutionality of § 28-319.01.
    III. ASSIGNMENTS OF ERROR
    Hibler claims, summarized and restated, that the district
    court erred when it rejected his constitutional challenge to
    § 28-319.01. He also claims that the district court made sev-
    eral erroneous evidentiary rulings, including admitting diary
    entries of J.H.; excluding certain text messages; and prevent-
    ing Hibler from examining A.H. concerning her military dis-
    charge, employment, and mental health history. Hibler claims
    that the State did not present sufficient evidence to support
    the convictions of first degree sexual assault of a child and
    incest, because evidence of the element of penetration was
    lacking. Hibler claims his trial counsel was ineffective. With
    regard to sentencing, as noted, Hibler claims that the manda-
    tory minimum sentence regarding first degree sexual assault
    of a child where the victim is under 12 years old pursuant to
    § 28-319.01(2) is unconstitutional.
    IV. STANDARDS OF REVIEW
    [1] The constitutionality of a statute presents a question of
    law, which we independently review. State v. Stone, 
    298 Neb. 53
    , 
    902 N.W.2d 197
    (2017).
    [2] An appellate court reviews for abuse of discretion a trial
    court’s evidentiary rulings on relevance, whether the probative
    value of evidence is substantially outweighed by the danger of
    unfair prejudice, and the sufficiency of a party’s foundation for
    admitting evidence. State v. Tucker, 
    301 Neb. 856
    , 
    920 N.W.2d 680
    (2018).
    [3] In reviewing a criminal conviction for a sufficiency of the
    evidence claim, whether the evidence is direct, circumstantial,
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    or a combination thereof, the standard is the same: An appel-
    late 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. 
    Id. [4] Whether
    a claim of ineffective assistance of trial counsel
    may be determined on direct appeal is a question of law. State
    v. Golyar, 
    301 Neb. 488
    , 
    919 N.W.2d 133
    (2018). In review-
    ing 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 assist­
    ance and whether the defendant was or was not prejudiced by
    counsel’s alleged deficient performance. 
    Id. V. ANALYSIS
       [5] We must first consider Hibler’s facial constitutional
    challenge focused on the statutory elements of first degree
    sexual assault of a child under which he was convicted,
    § 28-319.01(1)(a), and, in particular, the associated manda-
    tory minimum sentence, § 28-319.01(2). A statute is presumed
    to be constitutional, and all reasonable doubts are resolved in
    favor of its constitutionality. State v. Harris, 
    284 Neb. 214
    , 
    817 N.W.2d 258
    (2012).
    1. Constitutional Framework
    [6] We have held that the proper procedure for raising a
    facial constitutional challenge to a criminal statute is to file
    a motion to quash, and all defects not raised in a motion to
    quash are taken as waived by a defendant pleading the gen-
    eral issue. 
    Stone, supra
    . Hibler filed a motion to quash that
    alleged that § 28-319.01(2) violates his “constitutional rights
    under the Fifth, Fourteenth and Eighth Amendment[s] to the
    United States Constitution and the correlative provisions of the
    Nebraska Constitution.” His motion was overruled.
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    2. Constitutional Challenge:
    Equal Protection
    Hibler argues that § 28-319.01 is unconstitutional on its face
    because its violation imposes a substantially harsher sentence
    than a violation of other first degree sexual assault statutes
    solely based on the ages of the victim and the offender. Our
    analysis of this age classification focuses on the propriety of
    the age of the victim because that analysis is dispositive of
    Hibler’s claim.
    Section 28-319.01 provides:
    (1) A person commits sexual assault of a child in the
    first degree:
    (a) When he or she subjects another person under
    twelve years of age to sexual penetration and the actor is
    at least nineteen years of age or older; or
    (b) When he or she subjects another person who is at
    least twelve years of age but less than sixteen years of age
    to sexual penetration and the actor is twenty-five years of
    age or older.
    (2) Sexual assault of a child in the first degree is a
    Class IB felony with a mandatory minimum sentence of
    fifteen years in prison for the first offense.
    Hibler’s primary constitutional challenge to § 28-319.01
    is that its age classifications violate the Equal Protection
    Clause of the 14th Amendment and article I, § 3, of the
    Nebraska Constitution. Hibler maintains that the ages provided
    in § 28-319.01(1)(a) are arbitrary and not supported by a plau-
    sible policy reason or rational basis.
    [7] Although Hibler addresses other provisions of
    § 28-319.01 containing age classifications, we consider only
    his challenge to § 28-319.01(1)(a), and in particular, the age of
    the victim, because he has standing to challenge only the stat-
    ute that was relevant to the prosecution of his case. Standing
    to challenge the constitutionality of a statute under the federal
    or state Constitution depends upon whether one is, or is about
    to be, adversely affected by the language in question; to estab-
    lish standing, the contestant must show that as a consequence
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    of the alleged unconstitutionality, the contestant is, or is about
    to be, deprived of a protected right. State v. Harris, 
    284 Neb. 214
    , 
    817 N.W.2d 258
    (2012).
    [8,9] The Nebraska Constitution and the U.S. Constitution
    have identical requirements for equal protection challenges.
    Lingenfelter v. Lower Elkhorn NRD, 
    294 Neb. 46
    , 
    881 N.W.2d 892
    (2016). The Equal Protection Clause requires the gov-
    ernment to treat similarly situated people alike. 
    Lingenfelter, supra
    . It does not forbid classifications; it simply keeps gov-
    ernmental decisionmakers from treating differently persons
    who are in all relevant respects alike. 
    Id. In support
    of his equal protection challenge, Hibler refers
    us to other sexual assault statutes. However, he identifies
    no other sexual assault statute where the victim is under 12
    years of age. Thus, for example, Hibler compares first degree
    sexual assault of a child under § 28-319.01 to first degree
    sexual assault under § 28-319(1)(c), the latter of which does
    not carry a mandatory minimum sentence. But because first
    degree sexual assault under § 28-319(1)(c) is defined in part
    as subjecting a victim to sexual penetration when the victim is
    at least 12 years of age but less than 16 years of age, a viola-
    tion of § 28-319(1)(c) is simply a different crime from the one
    of which Hibler stands convicted. Hibler’s reference to other
    statutes does not inform our analysis.
    [10-12] If a legislative classification involves either a sus-
    pect class or a fundamental right, courts will analyze the clas-
    sification with strict scrutiny. 
    Lingenfelter, supra
    . A suspect
    class is one that has been saddled with such disabilities or
    subjected to such a history of purposeful unequal treatment
    as to command extraordinary protection from the majoritarian
    political process. 
    Id. Hibler does
    not contend he is a member of
    a suspect class. The classifications Hibler challenges are based
    on age, and age itself is not a suspect classification for equal
    protection purposes. See State v. Senters, 
    270 Neb. 19
    , 
    699 N.W.2d 810
    (2005).
    [13] When a classification created by state action does not
    jeopardize the exercise of a fundamental right or categorize
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    because of an inherently suspect characteristic, the Equal
    Protection Clause requires only that the classification rationally
    further a legitimate state interest. 
    Lingenfelter, supra
    .
    [14,15] Under the rational basis test, whether an equal pro-
    tection claim challenges a statute or some other government act
    or decision, the burden is upon the challenging party to elimi-
    nate any reasonably conceivable state of facts that could pro-
    vide a rational basis for the classification. 
    Id. Under this
    most
    relaxed and tolerant form of judicial scrutiny of equal protec-
    tion claims, the Equal Protection Clause is satisfied as long as
    (1) there is a plausible policy reason for the classification, (2)
    the legislative facts on which the classification is based may
    rationally have been considered to be true by the governmental
    decisionmaker, and (3) the relationship of the classification to
    its goal is not so attenuated as to render the distinction arbi-
    trary or irrational. 
    Lingenfelter, supra
    .
    With these three considerations in mind, we review the leg-
    islative history of § 28-319.01. The legislative history shows
    that the bill’s sponsor was concerned about the lasting harm to
    victims of sexual assault in situations where the victim is very
    young. The introducing senator testified before the Committee
    on Judiciary that
    [i]n 2005, of the 97 people in prison for first-degree sex-
    ual assault, 23 of them had assaulted a child under the age
    of 12. Nine years is the average length of their incarcera-
    tion. By creating the new offenses, we are able to enhance
    the penalties for the most heinous crimes.
    Judiciary Committee Hearing, L.B. 1199, 99th Leg., 2d Sess.
    2-3 (Feb. 16, 2006). Another senator speaking during the floor
    debate stated that “[i]f you offend against a child, it should
    put you in a secure environment, away from the rest of your
    community, for a very long time, and that is the part of the
    reform that makes sense.” Floor Debate, L.B. 1199, Judiciary
    Committee, 99th Leg., 2d Sess. 11590 (Mar. 27, 2006).
    It is reasonable to conclude that harsher punishments for
    those who commit first degree sexual assault against young
    children would further the policy and goal of p­ rotecting a
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    vulnerable group by preventing convicted perpetrators from
    reoffending.
    In 2009, the Legislature amended § 28-319.01 to add a
    provision that an individual over the age of 25 who subjected
    a person at least 12 years of age but less than 16 years of age
    to sexual penetration was guilty of first degree sexual assault
    of a child and subject to a mandatory minimum sentence. See
    § 28-319.01(1)(b). Although this amendment did not affect
    Hibler, whose victim was under age 12, we note that state-
    ments by legislators again demonstrated, inter alia, a concern
    to protect young people under age 16. See Judiciary Committee
    Hearing, L.B. 15, 101st Leg., 1st Sess. 3 (Mar. 11, 2009).
    [16] Although the age-based classifications defining first
    degree sexual assault of a child could have been drawn dif-
    ferently, the Legislature is clothed with the power of defining
    crimes and misdemeanors and fixing their punishment; and
    its discretion in this respect, exercised within constitutional
    limits, is not subject to review by the courts. State v. Stratton,
    
    220 Neb. 854
    , 
    374 N.W.2d 31
    (1985). Our review of the leg-
    islative history shows that the age classifications to which
    Hibler is subject in § 28-319.01(1)(a) are rationally related
    to plausible policy reasons considered by lawmakers and that
    the relationship of the classifications to their goals are not so
    attenuated as to render the distinction arbitrary or irrational.
    Hibler has not carried his burden to eliminate any reasonably
    conceivable state of facts that could provide a rational basis
    for the age classification in § 28-319.01(1)(a) and its logically
    associated mandatory minimum sentence in § 28-319.01(2).
    See Lingenfelter v. Lower Elkhorn NRD, 
    294 Neb. 46
    , 
    881 N.W.2d 892
    (2016).
    3. Constitutional Challenges:
    Due Process and Cruel and
    Unusual Punishment
    Although Hibler frames his constitutional challenge as a
    violation of equal protection, his motion to quash cites other
    constitutional provisions, and for completeness, we briefly
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    comment on them. Hibler’s motion to quash asserted that
    § 28-319.01 violates the Due Process Clause of the 5th and
    14th Amendments to the U.S. Constitution and article I,
    § 3, of the Nebraska Constitution, as well as the Cruel and
    Unusual Punishment Clause of the 8th Amendment to the U.S.
    Constitution, as incorporated and applied to the states through
    the 14th Amendment. See Furman v. Georgia, 
    408 U.S. 238
    ,
    
    92 S. Ct. 2726
    , 
    33 L. Ed. 2d 346
    (1972). We find these chal-
    lenges to be without merit.
    [17] As the legislative history showed, based on the policy,
    goals, and facts evinced therein, the Legislature required more
    severe punishments for first degree sexual assault of a young
    child, because it concluded it was a more serious crime. As
    noted above, the Legislature is empowered to define crimes,
    and in fixing their punishments, it need not select the least
    severe penalties. 
    Stratton, supra
    . With regard to the mandatory
    minimum sentence, it is well settled that the guarantees of due
    process and equal protection, as well as the prohibition against
    cruel and unusual punishment, do not require individual sen-
    tencing in noncapital cases. See, e.g., State v. Ferman-Velasco,
    
    333 Or. 422
    , 
    41 P.3d 404
    (2002); Campbell v. State, 
    268 Ga. 44
    , 
    485 S.E.2d 185
    (1997); People v Hall, 
    396 Mich. 650
    , 
    242 N.W.2d 377
    (1976).
    It is not unconstitutional to prescribe a more severe pun-
    ishment for a defendant who perpetrates sexual assault
    against a child under the age of 12. The age classifications in
    § 28-319.01(1)(a) and the associated mandatory minimum sen-
    tence in § 28-319.01(2) are not unconstitutional.
    4. Evidentiary Rulings
    We next consider Hibler’s assignments of error regarding
    evidentiary rulings made by the district court.
    (a) A.H.’s Military Discharge, Previous
    Employment as an Exotic Dancer,
    and Mental Health History
    Hibler claims that the district court abused its discretion
    when it sustained the State’s motion in limine which prevented
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    Hibler from questioning A.H. about the facts of her life, includ-
    ing her other than honorable discharge from the military, men-
    tal health history, substance abuse, and previous employment
    as an exotic dancer. The district court found this line of ques-
    tioning was not relevant and lacked any probative value. Hibler
    argues that cross-examination of A.H. on these matters was
    relevant, because it would have revealed that she was an unfit
    parent. He contends that her testimony would have strength-
    ened his defense theory that she desired to win sole custody
    of their children in a future divorce proceeding by planting the
    sexual assault story in J.H.’s mind.
    The personal issues excluded by the district court were not
    relevant to A.H.’s testimony about Hibler’s confession, nor did
    the ruling hinder Hibler’s defense. Hibler called A.H.’s cred-
    ibility into question at trial and was able to pursue his defense
    by questioning her about the movie she watched with J.H.,
    featuring a child struggling to report a sexual assault; about
    the “curious tim[ing]” of her filing for divorce just before she
    alleged Hibler confessed the sexual assaults; and about other
    parts of her life that he felt made him a stronger candidate for
    sole custody of their children. Hibler has not shown that the
    district court abused its discretion when it sustained the State’s
    motion in limine regarding cross-examination of A.H.
    (b) Text Messages From A.H.
    Hibler claims the district court erred when it sustained the
    State’s objection to exhibit 29 on the basis of hearsay and
    unfair prejudice. Exhibit 29 contained copies of text messages
    between A.H. and Hibler dated May 8, 2016. The data included
    a string of messages between A.H. and Hibler which were
    exchanged approximately 10 days after Hibler had allegedly
    admitted his conduct with J.H. Hibler contends that because
    the messages failed to refer to a confession, the messages are
    inconsistent with A.H.’s testimony that Hibler had previously
    confessed. Hibler asserts that the messages or portions thereof
    should have been admissible as impeachment of A.H. We reject
    Hibler’s argument.
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    Hearsay is a statement, other than one made by the declar-
    ant while testifying at a trial or hearing, offered in evidence
    to prove the truth of the matter asserted. Neb. Rev. Stat.
    § 27-801(3) (Reissue 2016). Hearsay is not admissible unless a
    specific exception to the hearsay rule applies. Neb. Rev. Stat.
    § 27-802 (Reissue 2016).
    [18,19] Hibler argues that the statements were not offered
    for the truth of the matters asserted but instead were prop-
    erly proffered to attack the credibility of A.H. by showing an
    inconsistency between her testimony at trial and her text mes-
    sages. As a general rule, a witness makes an inconsistent or
    contradictory statement if the witness refuses to either deny or
    affirm that he or she made the prior statement, or if the witness
    answers that he or she does not remember whether he or she
    made the prior statement. State v. Dominguez, 
    290 Neb. 477
    ,
    
    860 N.W.2d 732
    (2015). We have indicated that prior extra­
    judicial statements of a witness may be received into evidence
    for the limited purpose of assisting the jury in ascertaining the
    credibility of the witness, but unless they are otherwise admis-
    sible, they may not be considered as substantive evidence of
    the facts declared in the statements. See 
    id. In sustaining
    the State’s objection based on hearsay, the
    district court stated it did not see anything in A.H.’s responses
    that would be appropriate for impeachment purposes and, in
    addition, found them to be more prejudicial than probative.
    We have reviewed the record, and it shows that the messages
    were not inconsistent with A.H.’s trial testimony. Some of
    the messages in question from A.H. to Hibler include: “Just
    [t]ell the truth”; “Stop trying to save your own skin”; “Trust
    is earned but not by lies and secrets”; “You did this, you
    made the choices”; and “Stop playing the victim and tell the
    truth.” Contrary to Hibler’s characterization, the messages
    did not serve to impeach or rebut A.H.’s testimony regarding
    Hibler’s purported admission. The messages are hearsay, and
    the trial court did not err when it sustained the State’s hear-
    say exception to exhibit 29 and excluded the text messages in
    their entirety.
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    (c) Diary of J.H.
    Hibler claims that the district court erred when, following
    cross-examination of J.H., it admitted certain of J.H.’s diary
    entries written before she disclosed the alleged abuse at a child
    advocacy center interview. The district court reasoned that the
    diary entries were admissible to rebut a charge of recent fab-
    rication. Hibler contends that because he did not charge J.H.
    with recent fabrication or improper influence or motive, the
    diary entries were hearsay and not within an exception to the
    hearsay rule. We reject this assignment of error.
    As discussed above, hearsay is not admissible unless a
    specific exception to the hearsay rule applies. See § 27-802.
    However, statements are not hearsay if they are consistent
    with the declarant’s testimony and are offered to rebut an
    express or implied charge against the declarant of recent
    fabrication, improper influence, or improper motive under
    § 27-801(4)(a)(ii).
    [20] Here, Hibler contends that although he sought to
    impeach J.H.’s testimony by attacking her credibility, such
    approach did not rise to an implied or express charge of recent
    fabrication. We have recognized that it is sometimes difficult
    to determine whether a question attempts impeachment or
    rises to the level of a charge of recent fabrication and that it
    is not an abuse of discretion to allow the question where the
    impeachment is susceptible to either interpretation. See State
    v. Buechler, 
    253 Neb. 727
    , 
    572 N.W.2d 65
    (1998). Here, the
    district court believed there had been an express or implied
    charge of recent fabrication, improper influence or motive,
    such that some of the statements as redacted were admissible
    hearsay. We do not find this determination to be an abuse
    of discretion.
    [21] We have reviewed the record and are mindful of the
    dates attributed to the diary entries vis-a-vis Hibler’s theory of
    events. We permit a declarant’s consistent out-of-court state-
    ments to rebut a charge of recent fabrication, improper influ-
    ence, or improper motive when those statements were made
    before the charge of recent fabrication, improper influence,
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    or improper motive. See State v. Morris, 
    251 Neb. 23
    , 
    554 N.W.2d 627
    (1996). Hibler’s defense at trial was generally that
    A.H. had suggested the sexual abuse claim to J.H. as a story
    J.H. would tell to her friends to gain attention. The entries from
    J.H.’s diary located on her tablet computer pertained to her
    state of mind regarding her approach to disclosing the alleged
    abuse to people around her. They were made before A.H.’s
    alleged suggestions. The diary rebutted Hibler’s argument that
    J.H.’s report of sexual assault was recently fabricated.
    The trial court did not abuse its discretion when it admitted
    portions of J.H.’s diary to rebut an express or implied charge of
    recent fabrication. See § 27-801(4)(a)(ii).
    5. Sufficiency of the Evidence
    Hibler claims the evidence was not sufficient at trial to
    prove that he committed sexual assault of a child in the
    first degree or incest with a person under 18 years of age.
    Penetration is an element of the offense of sexual assault of a
    child in the first degree and incest. §§ 28-319.01 and 28-703.
    Hibler notes that J.H. did not explicitly state that Hibler’s
    fingers or hand “penetrated” her labia or vagina. However,
    taken in the light most favorable to the State, the evidence is
    sufficient to establish that penetration, as understood in the
    law, occurred.
    [22] We have stated that the slightest intrusion into the
    genital opening is sufficient to constitute penetration, and such
    element may be proved by either direct or circumstantial evi-
    dence. State v. Archie, 
    273 Neb. 612
    , 
    733 N.W.2d 513
    (2007).
    It is not necessary that the vagina be entered or that the hymen
    be ruptured; the entry of the vulva or labia is sufficient. 
    Id. J.H. did
    not use the word “penetration” when she testified
    at trial, but described acts by Hibler in detail sufficient to
    show penetration had occurred. J.H.’s testimony was consist­
    ent with the more anatomically informed testimony of A.H.
    summarizing J.H.’s reports of the sexual assaults. We have
    refused to require that a youthful victim testify about sexual
    acts “in vocabulary used by a gynecologist.” State v. Hirsch,
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    245 Neb. 31
    , 47, 
    511 N.W.2d 69
    , 80 (1994). A rational jury
    could conclude that Hibler’s actions described above in our
    statement of facts section were sufficient to prove penetration.
    The evidence was sufficient to support the conviction for first
    degree sexual assault of a child and incest with a person under
    18 years of age.
    6. Ineffective Assistance of Counsel
    [23,24] Hibler claims that his trial counsel provided ineffec-
    tive assistance in several respects. He is represented on direct
    appeal by different counsel from the counsel who represented
    him 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 appar-
    ent from the record, otherwise, the issue will be procedurally
    barred in a subsequent postconviction proceeding. State v.
    Golyar, 
    301 Neb. 488
    , 
    919 N.W.2d 133
    (2018). 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 dis-
    trict court later reviewing a petition for postconviction relief to
    recognize whether the claim was brought before the appellate
    court. 
    Id. [25,26] On
    direct appeal, allegations of how the defendant
    was prejudiced by trial counsel’s allegedly deficient conduct
    are unnecessary in our determination of whether the trial record
    supports the assigned error. State v. Abdullah, 
    289 Neb. 123
    ,
    
    853 N.W.2d 858
    (2014), citing State v. Filholm, 
    287 Neb. 763
    ,
    
    848 N.W.2d 571
    (2014). The fact that an ineffective assistance
    of counsel claim is raised on direct appeal does not necessarily
    mean that it can be resolved. 
    Golyar, supra
    . The determining
    factor is whether the record is sufficient to adequately review
    the question. 
    Id. Hibler alleges,
    restated and consolidated, that his trial coun-
    sel was ineffective in the following ways:
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    (1) failing to object to the testimony of J.H.’s friend
    regarding what J.H. told her when they met at the school
    playground;
    (2) failing to impeach and cross-examine three members of
    law enforcement, A.H., and J.H. regarding differences in trial
    testimony concerning the processing of J.H.’s tablet computer
    and the testimony of some of the law enforcement officers in
    their depositions and a police report;
    (3) failing to subpoena or move to compel the State to turn
    over a Cellebrite report generated during data extraction of the
    tablet computer;
    (4) failing to engage an independent forensic computer
    examiner to review the reports and data extractions performed
    on the tablet computer;
    (5) failing to mount a foundational challenge to the diary
    entries based on a broken chain of custody of the tablet com-
    puter, because officers gave conflicting deposition testimony
    concerning the tablet;
    (6) failing to move for a continuance when the State pro-
    duced an approximately 18,000-page Cellebrite report contain-
    ing the contents of A.H.’s cell phone on the first day of trial;
    (7) failing to investigate or obtain bank records or cross-
    examine A.H. on her removal of $2,300 from a joint account
    with Hibler just prior to the time A.H. testified that Hibler
    made confessions to her;
    (8) failing to cross-examine A.H. and J.H. and present evi-
    dence of the family’s account with a media service provider
    concerning the movie they testified to watching in March 2016
    that would show they watched a movie about child sexual
    assault prior to J.H.’s disclosure to her friends;
    (9) failing to introduce evidence of an episode of a televi-
    sion show concerning victims of crimes which the family had
    watched and, instead of introducing this evidence or cross-
    examining J.H., only asking J.H. if it was one of her favorite
    shows, to which she responded, “No”;
    (10) failing to cross-examine A.H. or investigate the facts
    that the purple underwear which tied on the sides and was
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    entered as an exhibit was clothing A.H. wore as an exotic
    dancer, that it was stored in a suitcase in a storage room, and
    that A.H. would have noticed if Hibler had searched through
    the suitcase and brought out the underwear;
    (11) failing to cross-examine A.H. and present evidence that
    A.H. was discharged from military service because she lied
    about her mental health diagnosis on her enlistment forms;
    (12) failing to investigate the online relationship A.H. had
    with a man she described as living in Hawaii, where such
    investigation would have revealed the relationship was signifi-
    cant and ongoing;
    (13) failing to investigate or adequately cross-examine A.H.
    concerning previous efforts to take custody of their children
    from Hibler;
    (14) failing to investigate and present evidence that J.H.
    made a false allegation against A.H.’s uncle in Arizona;
    (15) failing to thoroughly investigate or cross-examine wit-
    nesses concerning the fact that the father of one of J.H.’s
    friends to whom she disclosed the abuse at the playground said
    the disclosure happened in March, not February, which infor-
    mation was revealed in the Cellebrite report provided to Hibler
    on the first day of trial;
    (16) failing to subpoena or otherwise obtain records from
    the Ronald McDonald House in Kansas City, Missouri, which
    would have demonstrated the sexual assaults could not have
    occurred as J.H. testified, because A.H. was not in Kansas City
    at the times asserted by A.H. and J.H. at trial;
    (17) failing to subpoena or investigate witnesses and failing
    to cross-examine Hibler’s father when he testified at trial con-
    cerning the fact that Hibler almost never drank alcohol;
    (18) failing to examine two law enforcement officers regard-
    ing the police report that was generated after J.H.’s deposi-
    tion in which she testified that the tablet computer had been
    returned to her possession and that she agreed not to do any-
    thing with it until the completion of the trial;
    (19) failing to recall A.H. and J.H. during trial to rebut the
    State’s case on matters discussed above;
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    (20) representing to the jury during closing arguments that
    Hibler might have committed some of the alleged acts even
    though Hibler specifically told trial counsel he did not engage
    in any sexual touching of J.H.;
    (21) advising Hibler not to testify when Hibler informed
    trial counsel he did not engage in any sexual touching of J.H.;
    (22) failing to cross-examine any of the police officers who
    testified as to the reasons for the delay of at least 1 year of the
    interviews of the children who were present at the playground
    where J.H. initially disclosed the sexual assaults;
    (23) failing to cross-examine J.H.’s friend and the principal
    regarding who walked J.H. back to her classroom following her
    interview with the principal and teacher where police reports
    contradict the principal’s testimony concerning who J.H. inter-
    acted with in the minutes following the interview; and
    (24) failing to subpoena witnesses from the school who
    would have testified that J.H. had been caught lying to school
    officials about unrelated matters in the time prior to her allega-
    tions against Hibler.
    We have reviewed the record and have determined that the
    record on appeal is sufficient to review and reject claims Nos.
    1, 11, 19, and 20 on direct appeal. The remaining claims of
    ineffectiveness of trial counsel cannot be resolved on direct
    appeal because they implicate matters outside the record, such
    as information known or not known to trial counsel and con-
    versations between Hibler and trial counsel.
    In ineffectiveness claim No. 1, Hibler asserts that his trial
    counsel should have objected to testimony by one of J.H.’s
    friends to the effect that J.H. disclosed to her and some other
    friends at the school playground that someone in her family
    was touching her inappropriately. He contends that such objec-
    tion would have been sustained and that if the testimony had
    been excluded, it would have resulted in a reasonable prob-
    ability of a different outcome in his case. We do not agree. J.H.
    had already testified that she told her friends at school what
    was happening. Hibler was not prejudiced by any failure of his
    trial counsel to object to this cumulative testimony.
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    In ineffectiveness claim No. 11, Hibler asserts his counsel
    was ineffective for failing to cross-examine A.H. and pre­
    sent evidence that A.H. was discharged from military service
    because she lied about her mental health diagnosis on her
    enlistment forms. The record refutes this claim. During the
    foundational examination of A.H., the district court heard tes-
    timony from A.H. that she did not tell the military about her
    mental health history and that she later informed the military
    about it to get discharged. After hearing the testimony, the dis-
    trict court ruled the information was inadmissible. Hibler’s trial
    counsel was not ineffective for refraining from examining A.H.
    regarding her mental health and the military where the district
    court had ruled such evidence was inadmissible.
    In ineffectiveness claim No. 19, Hibler asserts his trial
    counsel was deficient for not recalling A.H. and J.H. to testify
    during trial to rebut the State’s case. He does not offer what he
    believes the testimony of A.H. and J.H. would have been and
    why it was deficient to not recall them. This claim has not been
    stated with sufficient particularity.
    In ineffectiveness claim No. 20, Hibler asserts that his trial
    counsel represented to the jury that Hibler might have com-
    mitted some of the alleged acts even though Hibler had told
    his counsel that he did not engage in any sexual touching of
    J.H. Hibler does not direct us to any examples of trial coun-
    sel’s purportedly making “admissions” on Hibler’s behalf, and
    we find none. This claim is refuted by the record.
    VI. CONCLUSION
    For the reasons stated above, in this direct appeal from a
    jury trial, we reject Hibler’s facial state and federal constitu-
    tional challenges to the age classifications defining first degree
    sexual assault of a child and the corresponding mandatory
    sentence in § 28-319.01(1)(a) and (2). We conclude that the
    district court did not abuse its discretion with regard to the
    evidentiary rulings challenged by Hibler. The evidence at trial
    was sufficient to establish the element of sexual penetration
    to support Hibler’s convictions for sexual assault of a child in
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    the first degree and incest with a person under 18 years of age.
    See §§ 28-319.01 and 28-703. Finally, the record is insufficient
    to resolve the majority of Hibler’s claims of ineffectiveness of
    trial counsel on direct appeal. However, we review and reject
    certain of these claims as described above. We affirm Hibler’s
    convictions and sentences for first degree sexual assault of a
    child, incest with a person under 18 years of age, and third
    degree sexual assault of a child.
    A ffirmed.
    Stacy, J., concurring.
    I agree with the majority’s analysis and holding, including
    its careful application of rational basis scrutiny to analyze the
    equal protection challenge presented here. I write separately to
    emphasize something the majority opinion does not do: apply a
    threshold “similarly situated” test.
    That is significant, because many of our prior opinions
    describe a threshold showing that a litigant must satisfy before
    a court will engage in constitutional scrutiny of an equal pro-
    tection claim.1 As recently as 2015, we described the threshold
    showing this way:
    The initial inquiry in an equal protection analysis is
    whether the challenger is similarly situated to another
    group for the purpose of the challenged government
    action. Absent this threshold showing, there is not a
    1
    See, State v. Loyuk, 
    289 Neb. 967
    , 
    857 N.W.2d 833
    (2015); Sherman T. v.
    Karyn N., 
    286 Neb. 468
    , 
    837 N.W.2d 746
    (2013); State v. Harris, 
    284 Neb. 214
    , 
    817 N.W.2d 258
    (2012); State v. Rung, 
    278 Neb. 855
    , 
    774 N.W.2d 621
    (2009); In re Interest of J.R., 
    277 Neb. 362
    , 
    762 N.W.2d 305
    (2009);
    Henly v. Neth, 
    271 Neb. 402
    , 
    712 N.W.2d 251
    (2006); In re Interest of
    Phoenix L., 
    270 Neb. 870
    , 
    708 N.W.2d 786
    (2006), disapproved in part
    on other grounds, In re Interest of Destiny A. et al., 
    274 Neb. 713
    , 
    742 N.W.2d 758
    (2007); Hass v. Neth, 
    265 Neb. 321
    , 
    657 N.W.2d 11
    (2003);
    Benitez v. Rasmussen, 
    261 Neb. 806
    , 
    626 N.W.2d 209
    (2001); Bauers v.
    City of Lincoln, 
    255 Neb. 572
    , 
    586 N.W.2d 452
    (1998); Gramercy Hill
    Enters. v. State, 
    255 Neb. 717
    , 
    587 N.W.2d 378
    (1998); DeCoste v. City of
    Wahoo, 
    255 Neb. 266
    , 
    583 N.W.2d 595
    (1998); State v. Atkins, 
    250 Neb. 315
    , 
    549 N.W.2d 159
    (1996).
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    viable equal protection claim. In other words, dissimilar
    treatment of dissimilarly situated persons does not violate
    equal protection rights.2
    This court first applied the threshold “similarly situated” test
    in the 1996 case of State v. Atkins.3 There, this court was con-
    sidering whether the Equal Protection Clause was violated by
    the different statutory methods used to calculate good time for
    inmates housed in state prisons4 as compared to those housed
    in county jails.5 This court began its analysis by reciting a
    principle recognized by the U.S. Supreme Court: “As a general
    matter, the Equal Protection Clause requires the government
    to treat similarly situated people alike.”6 We then adopted a
    new principle articulated by the U.S. Eighth Circuit Court
    of Appeals in Klinger v. Department of Corrections7: “[T]he
    dissimilar treatment of dissimilarly situated persons does not
    violate equal protection rights.”8 We also adopted the threshold
    test applied by the majority in Klinger and announced:
    [T]he initial inquiry in an equal protection analysis
    focuses on whether one has demonstrated that one was
    treated differently than others similarly situated. Absent
    this threshold showing, one lacks a viable equal protec-
    tion claim. . . .
    If one can make this threshold showing, the inquiry
    then shifts to whether the legislation at issue can survive
    judicial scrutiny.9
    2
    Loyuk, supra note 
    1, 289 Neb. at 978
    , 857 N.W.2d at 844.
    3
    Atkins, supra note 1.
    4
    See Neb. Rev. Stat. § 83-1,107 (Cum. Supp. 2018).
    5
    See Neb. Rev. Stat. § 47-502 (Reissue 2010).
    6
    Atkins, supra note 
    1, 250 Neb. at 320
    , 549 N.W.2d at 163, citing Cleburne
    v. Cleburne Living Center, Inc., 
    473 U.S. 432
    , 
    105 S. Ct. 3249
    , 
    87 L. Ed. 2d
    313 (1985).
    7
    Klinger v. Department of Corrections, 
    31 F.3d 727
    (8th Cir. 1994).
    8
    Atkins, supra note 
    1, 250 Neb. at 320
    , 549 N.W.2d at 163.
    9
    
    Id. at 320-21,
    549 N.W.2d at 163 (citation omitted).
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    In Atkins, we concluded it was unnecessary to reach the mer-
    its of the equal protection claim because we determined, as a
    threshold matter, that inmates in state prisons were not simi-
    larly situated to inmates in county jails.
    Although the adoption in Klinger of a threshold similarly
    situated test has been criticized by judges10 and commenta-
    tors11 as undercutting meaningful equal protection analysis,
    this court has continued to apply the test to equal protection
    claims in a variety of contexts.12 In many of those cases, we
    found the threshold “similarly situated” showing was not
    met, and denied the equal protection claim without reach-
    ing the merits or engaging in constitutional analysis.13 In
    doing so, our application of the threshold “similarly situated”
    test effectively foreclosed meaningful equal protection review
    altogether by relying on nothing more than factual differences
    between two groups. This is not to suggest that factual differ-
    ences are irrelevant to the equal protection analysis, but as the
    U.S. Supreme Court’s holding in Cleburne v. Cleburne Living
    10
    See, e.g., Women Prisoners of D.C. Correct. v. D.C., 
    93 F.3d 910
    (D.C. Cir.
    1996) (Rogers, Circuit Judge, concurring in part, and in part dissenting);
    Klinger, supra note 7 (McMillian, Circuit Judge, dissenting); Varnum v.
    Brien, 
    763 N.W.2d 862
    , 882 (Iowa 2009) (“[i]n considering whether two
    classes are similarly situated, a court cannot simply look at the trait used
    by the legislature to define a classification under a statute and conclude a
    person without that trait is not similarly situated to persons with the trait”).
    11
    See, Angie Baker, Note, Leapfrogging over Equal Protection Analysis: The
    Eighth Circuit Sanctions Separate and Unequal Facilities for Males and
    Females in Klinger v. Department of Corrections, 
    31 F.3d 727
    (8th Cir.
    1994), 
    76 Neb. L
    . Rev. 371 (1997); Giovanna Shay, Similarly Situated, 18
    Geo. Mason L. Rev. 581 (2011).
    12
    See cases cited supra note 1.
    13
    See, e.g., In re Interest of Phoenix L., supra note 1 (parents of Indian
    children not similarly situated to parents of non-Indian children); Benitez,
    supra note 1 (those with unsubstantiated reports of child abuse not
    similarly situated to those with court-substantiated reports of child abuse);
    Gramercy Hill Enters., supra note 1 (two nursing homes not similarly
    situated); Atkins, supra note 1 (county jail inmates and state prison
    inmates not similarly situated).
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    Center, Inc.14 illustrates, the mere fact that two groups are dif-
    ferent from one another does not mean the State can show a
    rational basis for treating them differently under the law.
    The legal conclusion that two groups are not “similarly situ-
    ated” is not one courts should be making as a threshold matter,
    as doing so serves only to insulate the challenged classification
    from any meaningful equal protection review. If two groups are
    not similarly situated, the proper constitutional analysis will
    bear that out. The majority opinion illustrates this point.
    After reciting the overarching principle that “[t]he Equal
    Protection Clause requires the government to treat similarly sit-
    uated people alike” the majority proceeds to analyze the equal
    protection claim by applying rational basis scrutiny to the age-
    based classification being challenged here. Only after complet-
    ing this analysis does the majority conclude that Hibler’s equal
    protection claim lacks merit.
    A threshold “similarly situated” inquiry is a poor substitute
    for careful judicial scrutiny of the fit between the State’s inter-
    est and the challenged classification. I would like to see this
    court expressly disapprove of our prior cases that have recog-
    nized a threshold “similarly situated” inquiry in equal protec-
    tion cases. But I am encouraged by the fact that the majority
    opinion neither cites to nor endorses a threshold “similarly
    situated” test, and I therefore concur in all respects.
    14
    Cleburne, supra note 6.