State v. Anders , 311 Neb. 958 ( 2022 )


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    www.nebraska.gov/apps-courts-epub/
    07/29/2022 09:06 AM CDT
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. ANDERS
    Cite as 
    311 Neb. 958
    State of Nebraska, appellee, v.
    Douglas H. Anders, appellant.
    ___ N.W.2d ___
    Filed July 15, 2022.    No. S-21-413.
    1. Effectiveness of Counsel: Appeal and Error. Assignments of error
    on direct appeal regarding ineffective assistance of trial counsel must
    specifically allege deficient performance, and an appellate court will not
    scour the remainder of the brief in search of such specificity.
    2. Convictions: Appeal and Error. In an appeal of a criminal conviction,
    an appellate court reviews the evidence in a light most favorable to the
    prosecution.
    3. Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    4. Trial: Convictions: Evidence: Appeal and Error. An appellate court
    will sustain a conviction in a bench trial of a criminal case if the prop-
    erly admitted evidence, viewed and construed most favorably to the
    State, is sufficient to support that conviction. In making this determi-
    nation, an appellate court does not resolve conflicts in the evidence,
    pass on the credibility of witnesses, evaluate explanations, or reweigh
    the evidence presented, which are within a fact finder’s province for
    disposition. Instead, the relevant question is whether, after viewing the
    evidence in the light most favorable to the prosecution, any rational trier
    of fact could have found the essential elements of the crime beyond a
    reasonable doubt.
    5. Sexual Assault: Testimony: Proof. The State is not required to cor-
    roborate a victim’s testimony in cases of first degree sexual assault; if
    believed by the finder of fact, the victim’s testimony alone is sufficient.
    6. Witnesses: Appeal and Error. It is not in the purview of the appellate
    court to determine the credibility of witnesses on appeal, as such deter-
    minations are for the finder of fact.
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    7. Statutes: Intent. When interpreting a statute, the starting point and
    focus of the inquiry is the meaning of the statutory language, understood
    in context.
    8. Statutes: Appeal and Error. Statutory language is to be given its plain
    and ordinary meaning, and an appellate court will not resort to inter-
    pretation to ascertain the meaning of statutory words which are plain,
    direct, and unambiguous.
    9. Statutes. It is not within the province of the courts to read meaning into
    a statute that is not there or to read anything direct and plain out of a
    statute.
    10. Sexual Assault. Under 
    Neb. Rev. Stat. § 28-318
    (8)(a)(iv) (Cum. Supp.
    2020), a victim does not consent to sexual penetration if the consent, if
    any was actually given, was the result of the actor’s deception as to the
    nature or purpose of the act on the part of the actor.
    11. Sexual Assault: Words and Phrases. The word “deception,” as used in
    
    Neb. Rev. Stat. § 28-318
    (8)(a)(iv) (Cum. Supp. 2020), has a plain and
    ordinary meaning: words or conduct, or both words and conduct, caus-
    ing the victim to believe what is false.
    12. Criminal Law: Statutes: Appeal and Error. In strictly construing
    penal statutes, an appellate court does not supply missing words or sen-
    tences to make clear that which is indefinite, or to supply that which is
    not there.
    13. Convictions: Evidence: Appeal and Error. Where there is sufficient
    evidence to support a conviction under one theory of guilt, an appellate
    court need not consider whether the evidence was sufficient to support
    the alternative theory or theories of guilt.
    14. Effectiveness of Counsel: Postconviction: Records: Appeal and
    Error. When a defendant’s trial counsel is different from his or her
    counsel on direct appeal, the defendant must raise on direct appeal any
    issue of trial counsel’s ineffective performance which is known to the
    defendant or is apparent from the record; otherwise, the issue will be
    procedurally barred in a subsequent postconviction proceeding.
    15. Effectiveness of Counsel: Records: Appeal and Error. The fact that
    an ineffective assistance of counsel claim is raised on direct appeal does
    not necessarily mean that it can be resolved. The determining factor is
    whether the record is sufficient to adequately review the question.
    16. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
    ineffective assistance of counsel under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant must
    show that his or her counsel’s performance was deficient and that this
    deficient performance actually prejudiced the defendant’s defense.
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    17. ____: ____. To show that counsel’s performance was deficient, a defend­
    ant must show that counsel’s performance did not equal that of a lawyer
    with ordinary training and skill in criminal law.
    18. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
    dice, the defendant must demonstrate a reasonable probability that but
    for counsel’s deficient performance, the result of the proceeding would
    have been different. A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.
    19. Trial: Effectiveness of Counsel: Presumptions: Appeal and Error. In
    determining whether trial counsel’s performance was deficient, there is
    a strong presumption that counsel acted reasonably.
    20 Rules of Evidence. In proceedings where the Nebraska Evidence Rules
    apply, the admissibility of evidence is controlled by the Nebraska
    Evidence Rules; judicial discretion is involved only when the rules make
    discretion a factor in determining admissibility.
    21. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
    Rules commit the evidentiary question at issue to the discretion of the
    trial court, an appellate court reviews the admissibility of evidence for
    an abuse of discretion.
    22. Constitutional Law: Criminal Law: Jury Trials: Appeal and Error.
    Whether cumulative error deprived a criminal defendant of his or her
    Sixth Amendment right to a trial by an impartial jury presents a question
    of law to be reviewed de novo.
    23. Appeal and Error. An alleged error must be both specifically assigned
    and specifically argued in the brief of the party asserting the error to be
    considered by an appellate court.
    24. Effectiveness of Counsel. A pro se party is held to the same standards
    as one who is represented by counsel.
    25. Trial: Attorneys at Law. The decision whether or not to object has long
    been held to be part of trial strategy.
    26. Effectiveness of Counsel: Trial. When reviewing claims of alleged
    ineffective assistance of counsel, trial counsel is afforded due deference
    to formulate trial strategy and tactics.
    27. Effectiveness of Counsel: Presumptions: Appeal and Error. There
    is a strong presumption that counsel acted reasonably, and an appellate
    court will not second-guess reasonable strategic decisions.
    28. Constitutional Law: Jury Trials: Appeal and Error. Although one or
    more trial errors might not, standing alone, constitute prejudicial error,
    their cumulative effect may be to deprive the defendant of his or her
    constitutional right to a public trial by an impartial jury.
    29. Trial: Evidence: Presumptions: Appeal and Error. In a case tried to
    the court without a jury, there is a presumption that the trial court, in
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    STATE v. ANDERS
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    reaching its decision, considered only evidence that is competent and
    relevant, and this court will not overturn such a decision where there
    is sufficient material, competent, and relevant evidence to sustain the
    judgment.
    30. Sentences: Appeal and Error. A sentence imposed within the statutory
    limits will not be disturbed on appeal in the absence of an abuse of dis-
    cretion by the trial court.
    31. Constitutional Law: Criminal Law: Sentences. The constitutional
    protection against cruel and unusual punishment does not require strict
    proportionality between crime and sentence, but, rather, forbids only
    extreme sentences that are grossly disproportionate to the crime.
    Appeal from the District Court for Douglas County: Timothy
    P. Burns, Judge. Affirmed.
    Douglas H. Anders, pro se, and Timothy S. Noerrlinger for
    appellant.
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein, for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    I. INTRODUCTION
    Douglas H. Anders appeals from his conviction and sen-
    tence for first degree sexual assault. At the conclusion of a
    bench trial, the court found that Anders exploited his position
    as K.G.’s Olympic trainer and sexually penetrated her through
    deception and coercion. Anders primarily challenges the suf-
    ficiency of the evidence to support his conviction. He also
    asserts that his sentence was excessive and that his trial coun-
    sel was ineffective. Finding no merit to his appeal, we affirm.
    II. BACKGROUND
    The State charged Anders with first degree sexual assault,
    a Class II felony, pursuant to 
    Neb. Rev. Stat. § 28-319
    (1)
    (Reissue 2016). The State alleged that Anders sexually
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    penetrated K.G. under the guise that it was necessary to aid
    in her physical recovery from athletic training.
    A bench trial was held where the State and Anders offered
    evidence. In this section, we summarize testimony and facts
    pertinent to the instant appeal, viewed in the light most favor-
    able to the State. In the analysis section below, we provide
    additional facts where necessary.
    1. State’s Evidence
    The State offered the testimony of multiple witnesses,
    including K.G., K.G.’s therapist, K.G.’s friends and family,
    M.C. (another woman who testified that she was sexually
    assaulted by Anders), and criminal investigators.
    (a) K.G.’s Testimony
    K.G. testified that Anders trained her at his commercial gym
    to become an Olympic weightlifter. During K.G.’s training,
    Anders performed “adjustments” to her, claiming that they
    would alleviate the pain and soreness she felt in her pelvis and
    legs. Anders would “adjust” K.G. by inserting his fingers into
    her vagina while she lay on a chiropractic bed.
    K.G. testified that she was not yet 16 years old the first time
    that Anders performed an “adjustment” on her. K.G. remem-
    bered that her mom “pick[ed her] up” from the gym that day,
    because she “couldn’t drive” yet. Anders was 35 years her
    senior. K.G. was uncomfortable and embarrassed by Anders’
    actions, but she did not protest, because she trusted him and
    wanted to alleviate her pain.
    Anders convinced K.G. to not tell anyone about the “treat-
    ment,” because he claimed that although it was commonplace
    in the sports world, it was “taboo” to talk about it to others.
    Accordingly, K.G. generally kept Anders’ conduct a secret
    while under his training. K.G. never went to law enforcement
    and only discussed being sexually penetrated by Anders with a
    friend and her former boyfriend.
    Anders’ “adjustments” progressed into what he called “sports
    massage[s],” where he would rub K.G.’s inner thighs. Anders
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    told K.G. that there was a muscle in her thigh that was affect-
    ing the way her foot turned while lifting and that the “sports
    massage” was necessary to increase blood flow. These mas-
    sages ended with Anders’ touching K.G.’s genital area. K.G.
    testified that Anders would often have an erection while mas-
    saging her. Again, K.G. was uncomfortable; but because she
    believed his explanation, she did not protest.
    Anders’ conduct advanced further. Eventually, Anders started
    inserting foreign objects into K.G.’s vagina to “stimulat[e]”
    recovery. This progressed over time to penetrating her vagina
    with his penis.
    K.G. testified that she initially “refuse[d] any type of pen-
    etration by [Anders] and, usually, that was a boundary that was
    pushed.” According to K.G., no matter how many times she
    protested being sexually penetrated by Anders, he would insist
    that it was necessary for her “recovery” until she just “caved
    and just submitted to [it].”
    Several times, K.G. expressed her desire that the touching
    “not be part of the training” and that she “still want[ed] to be
    an athlete and do weightlifting[,] but [she didn’t] want to con-
    tinue with the other stuff.” However, when K.G. would bring
    this desire to Anders, he would get upset and threaten to stop
    training her or kick her out of his gym until she begged him
    to return. K.G. always begged to return, because Anders had
    manipulated her into believing that she would not achieve her
    Olympic dreams if he did not train her.
    K.G. testified that Anders manipulated her in other ways
    as well. Anders isolated K.G. from her social life and
    demanded that she focus her attention on training. Anders
    told K.G. that she needed to “get more focused, more seri-
    ous” about her training and “[could not] necessarily go out
    Friday nights because [she] had to be in the gym to train on
    Saturday.” When K.G. was not at his gym, Anders would
    text her, asking if she was “‘home yet.’” Consequently, K.G.
    stopped socializing with her friends, because she “had to be
    serious and focused.” It came to the point where she would
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    STATE v. ANDERS
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    “first ask him if [she] could go.” K.G. also began working at
    the gym.
    Anders’ actions became “less adjustment, less massage,
    more just intercourse whenever he wanted, whenever it was
    convenient, whenever there was an opportunity.” K.G. testi-
    fied that the sexual intercourse became such a “normal part of
    [her] being at the gym” that she would initiate it with Anders
    on occasion.
    After 8 years, K.G. finally stopped training under Anders
    and permanently left the gym. K.G. then told her parents that
    Anders had been sexually abusing her and sought therapy.
    Anders’ conduct was finally brought to the attention of
    law enforcement when K.G.’s therapist complied with his
    legal obligation to report sexual abuse to authorities. After
    law enforcement launched an investigation into Anders, K.G.
    talked to investigators and gave them the cell phones that she
    used during and after her time at Anders’ gym.
    (b) M.C.’s Testimony
    M.C. testified to similar conduct by Anders directed toward
    her. M.C. also trained and worked at Anders’ gym. M.C.
    claimed that he had sexually assaulted her.
    Before trial, Anders filed a motion in limine to bar M.C.
    from testifying under 
    Neb. Rev. Stat. § 27-414
     (Reissue 2016).
    The court held a hearing where M.C. testified regarding those
    events. After the hearing, the court overruled Anders’ motion
    in limine and allowed M.C. to testify at trial. At trial, Anders
    did not renew his objection when the State called M.C.
    to testify.
    At trial, M.C. testified that Anders performed some “adjust-
    ments or chiropractic measures” on her for pain that she was
    suffering. Anders never inserted his fingers into M.C.’s vagina
    during these sessions. However, M.C. suffered a broken tail-
    bone at one point in her training and Anders claimed he could
    “fix [her] broken tailbone” by inserting his fingers into her
    vagina to “correct” it.
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    M.C. was skeptical of Anders’ claim, because he was not a
    doctor. Anders responded to M.C.’s skepticism by asking to do
    an initial examination on her to see if treating her tailbone was
    “even possible.”
    After M.C. agreed to the initial procedure, Anders placed
    his hands on her inner thigh near her genital areas, moved his
    hands up to “where [her] leg connects to [her] pelvis,” and
    moved his hands over her breasts before ending the procedure.
    Anders informed her that he could “fix” her tailbone, but M.C.
    told him she needed time to think it over.
    However, M.C. never decided whether to consent to Anders’
    “treatment,” because she was permanently “kicked out of the
    gym.” A few days after Anders’ examination of M.C., K.G.
    confronted her about arriving late to the gym. M.C. discussed
    the matter with K.G. in a private room, where she explained
    she believed Anders was manipulating K.G. Anders then “burst
    in” the room and told M.C., “that’s it, you’re out.” M.C. left
    and never went back to the gym.
    (c) Investigators’ Testimony
    The State called multiple investigators to detail their investi-
    gation into Anders and the collection of evidence presented in
    the case. Some of the most notable testimony by the investiga-
    tors regarded K.G. and Anders’ cell phone communications.
    An investigator testified to receiving phone records from
    K.G.’s phone carriers and recovering two phones from K.G.
    and one phone from Anders. The phone carriers’ records listed
    K.G.’s phone number and stated that 62.56 percent of all com-
    munications to K.G.’s phone number were either to or from
    Anders’ phone number. Anders provided the investigator with
    his number.
    A second investigator testified that he used computer soft-
    ware to download text messages from two phones owned by
    K.G. and one phone owned by Anders. The phones matched
    K.G.’s and Anders’ phone numbers. The investigator explained
    that some text messages could not be retrieved, because they
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    had been deleted. However, the investigator was able to recover
    some messages that were marked for deletion but had not yet
    been removed from the phones’ databases.
    The State introduced the text messages that investigators
    recovered as exhibits. As an example, Anders texted K.G.
    that “I need some,” to which she responded, “I’d give some
    but my tailbone [is] sore.” Another text Anders sent to K.G.
    stated, “No candy touching my LIPS . . . UNLESS [it’s] ON
    YOURS.” Yet another text message included K.G.’s mention-
    ing taking a nap with Anders after “bang[ing].”
    (d) Other Witnesses
    K.G.’s friend and her former boyfriend testified that while
    K.G. was still training under Anders, she told them about his
    sexual abuse. K.G.’s father also testified. While K.G.’s father
    was not aware of the sexual abuse until after she left the
    gym, he confirmed her general timeline of events (her train-
    ing schedule, the amount of time she spent at the gym, her
    informing him of the abuse after she permanently left the gym,
    her decision to seek counseling, et cetera). Further, Anders’
    ex-business partner testified that he saw Anders and K.G. kiss-
    ing in the gym’s spa area.
    At the conclusion of the State’s case, Anders moved to dis-
    miss the charge against him, arguing the State failed to provide
    sufficient evidence to support his conviction. The court over-
    ruled Anders’ motion.
    2. Anders’ Defense
    Anders testified in his defense and presented multiple
    witnesses.
    (a) Anders’ Testimony
    Anders denied ever performing any sexual acts on K.G.
    or M.C. and attacked the credibility of the State’s witnesses.
    Anders asserted that K.G. had mental issues that caused her
    to fabricate her allegations, claiming that she made them up
    after seeing reports that a doctor who was associated with
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    U.S. “gymnastic programs that were Olympic-certified” had
    sex­ually abused female athletes. Anders acknowledged that he
    was not qualified to make any medical response to a medical
    report. Nevertheless, he contended that he had obtained tests
    results from K.G.’s blood showing she was schizophrenic.
    (Anders did not introduce the test results or the testimony of
    the clinical psychologists with whom he claimed to have dis-
    cussed her test results.) Further, Anders insisted that K.G.’s
    friend and her former boyfriend were lying that she informed
    them of his sexual abuse years before the reports against the
    Olympic doctor came to light. Anders also asserted the M.C.
    was lying and had mental issues.
    Anders attempted to explain away many of the text mes-
    sages that investigators retrieved from his and K.G.’s phones.
    For instance, Anders claimed that the “candy touching [my]
    lips” message was regarding candy-flavored lip balm that he
    was using to treat a cold sore. Anders also asserted that K.G.
    could not have been talking about him in the message that
    referred to taking a nap after “bang[ing],” because he never
    napped in the office. Regarding other messages, he simply
    denied ever sending or receiving them.
    Finally, Anders claimed that his ex-business partner misin-
    terpreted the kiss that he gave K.G. Anders stated he “kissed
    [K.G.] on the cheek” after she “missed . . . a personal best.”
    Anders maintained that he would regularly do the same thing
    for any of his clients—including men.
    (b) Character Witnesses
    Anders presented multiple witnesses who either worked at
    or attended his gym. The witnesses testified that they never
    saw Anders sexually abuse K.G. and did not believe he would
    do so based on their interactions with him. However, when
    confronted with K.G.’s and Anders’ text messages, the wit-
    nesses were surprised and could not reasonably justify the text
    messages’ explicit contents.
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    After resting Anders’ case, his trial counsel renewed his
    motion to dismiss. The court overruled the motion.
    3. Verdict and Sentencing
    Acting as the trier of fact, the court found Anders guilty of
    one count of first degree sexual assault. The court stated that
    Anders and K.G. had a lengthy sexual history in which he
    sexually penetrated her without her consent on multiple occa-
    sions “through coercion, at times it was through deception, and
    at times it was through both coercion and deception.” The court
    also made explicit witness credibility determinations, finding
    K.G. credible and Anders not credible. Anders filed a motion
    for new trial, which the court overruled.
    At Anders’ sentencing hearing, the court listened to K.G.’s
    victim statement and reviewed the presentence investigation
    report. The court then stated to Anders:
    [I]t’s very disturbing that you were 50 or so when [K.G.],
    a teenager — and you started a sexual relationship with
    her. You were in a position of authority, command, influ-
    ence, and yet you manipulated and isolated her. Despite
    overwhelming evidence of your guilt, your only response
    to the conviction is, I did not have any sexual contact
    with [her].
    The court sentenced Anders to a term of 25 to 30 years’
    imprisonment.
    Anders filed a timely appeal and a petition to bypass the
    Nebraska Court of Appeals. We denied Anders’ petition to
    bypass, but moved the case to our docket. 1
    4. Changes in Counsel
    Anders has changed his counsel three times during the course
    of his proceedings: (1) before trial; (2) after the court issued
    its verdict, but before Anders was sentenced; and (3) after
    Anders’ notice of appeal was filed, but before oral arguments
    1
    See 
    Neb. Rev. Stat. § 24-1106
    (2) and (3) (Cum. Supp. 2020).
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    were presented. In total, Anders was represented by three dif-
    ferent trial counsel and two appellate counsel. Because Anders
    assigns ineffective assistance of counsel, we clarify the time
    periods during which each counsel represented him.
    Anders retained his initial counsel—who represented him
    during the discovery portion of his proceedings, including the
    depositions of K.G. and her mother. Anders terminated his
    initial counsel and retained his primary counsel. The court sus-
    tained Anders’ initial counsel’s motion to withdraw.
    Anders’ primary counsel represented him during the remain-
    der of the discovery proceedings and at trial. At Anders’ sen-
    tencing hearing, Anders “releas[ed]” his primary counsel from
    representing him. The court allowed Anders’ primary counsel
    to withdraw.
    Anders then retained his postverdict counsel, who presented
    arguments in support of his motion for new trial, represented
    him at his sentencing hearing, and filed his notice of appeal.
    By filing Anders’ notice of appeal, his postverdict counsel
    became his appellate counsel. However, Anders filed a pro
    se “Notice of Termination of Appellant’s Counsel” with the
    Court of Appeals, stating that he notified his counsel that he
    was “terminat[ed] effective[] immediately” and intended to
    retain new appellate counsel. Anders’ postverdict counsel filed
    a motion to withdraw, which the Court of Appeals held under
    advisement and directed the counsel to file a motion to with-
    draw with the district court. Anders’ postverdict counsel then
    filed a motion to withdraw with the district court, which the
    court sustained. After receiving a supplemental transcript, the
    Court of Appeals reconsidered and sustained Anders’ postver-
    dict counsel’s motion to withdraw.
    Anders filed his appellate brief and petition to bypass
    pro se. Anders then retained new appellate counsel—who
    entered a written appearance, filed a reply brief, and pre-
    sented oral argument to this court. At oral argument, appellate
    counsel explained that he was retained “to orally argue the
    [appeal] for [Anders].” However, we observe that appellate
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    counsel’s written appearance did not specify a limited scope of
    representation. 2
    After oral arguments were presented, and while the appeal
    was under submission, Anders filed a written notice that he had
    discharged his appellate counsel. In that notice, he reiterated
    his reliance upon the assignments of error in his pro se brief.
    III. ASSIGNMENTS OF ERROR
    Anders assigns three categories of error, which we combine
    and restate. Anders assigns that the evidence was insufficient
    to support his conviction. He also assigns that he received
    an excessive and unconstitutional sentence. Finally, Anders
    assigns that he received ineffective assistance of trial counsel.
    [1] We have held that assignments of error on direct appeal
    regarding ineffective assistance of trial counsel must specifi-
    cally allege deficient performance, and an appellate court will
    not scour the remainder of the brief in search of such specific­
    ity. 3 Therefore, we quote Anders’ assignments of error regard-
    ing ineffective assistance of counsel.
    Anders assigns his trial counsel was ineffective in:
    A. Failing to insist upon expert testimony as to psycho-
    logical coercion[;]
    B. Failing to argue [sic] reliance upon deception as to
    the nature or purpose of a sexual act must be objectively
    reasonable[;]
    C. Failing to object to inadmissible single, double, and
    triple hearsay[;]
    D. Failing to object to unreliable testimony by [M.C.]
    as to an allegedly prior bad act that was dissimilar, did
    not constitute a crime of sexual assault under [
    Neb. Rev. Stat. § 27-413
     (Reissue 2016)], and was unduly prejudi-
    cial under [
    Neb. Rev. Stat. § 27-403
     (Reissue 2016);]
    E. Fail[ing] to impeach [his ex-business partner] about
    his previous felony convictions, to object to his testimony
    2
    See Neb. Ct. R. of Prof. Cond. § 3-501.2(d) (rev. 2016).
    3
    State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
     (2019).
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    as improper evidence of prior bad acts, to object to defense
    witnesses being questioned about [his] testimony, and the
    financial windfall [he] would derive from [Anders’] being
    convicted[;]
    F. Failing to object to inadmissible text messages from
    [Anders’] and [K.G.’s] cell phones[;]
    G. Fail[ing] to cross examine [K.G.] about the inconsist­
    ent time periods of [Anders’] alleged misconduct between
    her trial testimony and previous sworn statements[;]
    H. Fail[ing] to seek the counseling records of [K.G.’s
    therapist] under [State v. Trammell, 4] to cross examine
    [him] thereon, and to retain a defense expert to determine
    and testify if [K.G.] was suffering from false memory
    syndrome, and whether or not [K.G.’s] reliance upon any
    deception by [Anders] was reasonable and/or a result of
    psychological coercion.
    Anders also assigns his trial counsel’s “collective ineffec-
    tiveness in failing to object to prejudicial inadmissible evidence
    constitutes plain error under the cumulative error doctrine.”
    IV. STANDARD OF REVIEW
    [2,3] In an appeal of a criminal conviction, we review the
    evidence in a light most favorable to the prosecution. 5 An
    abuse of discretion occurs when a trial court’s decision is based
    upon reasons that are untenable or unreasonable or if its action
    is clearly against justice or conscience, reason, and evidence. 6
    Additional standards will be set forth in the analysis section.
    V. ANALYSIS
    1. Sufficiency of Evidence
    Anders assigns that the court erred in finding that there was
    sufficient evidence to support his conviction for first degree
    sexual assault. Anders presents two arguments. First, he argues
    4
    State v. Trammell, 
    231 Neb. 137
    , 
    435 N.W.2d 197
     (1989).
    5
    State v. Figures, 
    308 Neb. 801
    , 
    957 N.W.2d 161
     (2021).
    6
    
    Id.
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    the evidence was insufficient to prove that he sexually pene­
    trated K.G., because the court should not have considered her
    testimony. Anders also argues the evidence was insufficient
    to prove that he induced K.G.’s consent through deception
    or compelled her to submit through coercion. Each will be
    addressed in turn.
    (a) Standard of Review
    [4] An appellate court will sustain a conviction in a bench
    trial of a criminal case if the properly admitted evidence,
    viewed and construed most favorably to the State, is sufficient
    to support that conviction. In making this determination, we
    do not resolve conflicts in the evidence, pass on the credibility
    of witnesses, evaluate explanations, or reweigh the evidence
    presented, which are within a fact finder’s province for dispo-
    sition. Instead, the relevant question is whether, after viewing
    the evidence in the light most favorable to the prosecution, any
    rational trier of fact could have found the essential elements of
    the crime beyond a reasonable doubt. 7
    (b) Statutes
    Section 28-319(1) creates the offense at issue here. It states:
    “Any person who subjects another person to sexual penetration
    . . . without the consent of the victim . . . is guilty of sexual
    assault in the first degree.” 8
    For purposes of that offense, 
    Neb. Rev. Stat. § 28-318
     (Cum.
    Supp. 2020) defines “[s]exual penetration” and “[w]ithout con-
    sent.” This definitional statute states in part:
    (6) Sexual penetration means sexual intercourse in its
    ordinary meaning, . . . , or any intrusion, however slight,
    of any part of the actor’s or victim’s body or any object
    manipulated by the actor into the genital or anal openings
    of the victim’s body which can be reasonably construed as
    being for nonmedical, nonhealth, or nonlaw enforcement
    7
    State v. Taylor, 
    310 Neb. 376
    , 
    966 N.W.2d 510
     (2021).
    8
    § 28-319(1).
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    purposes. Sexual penetration shall not require emission
    of semen.
    ....
    (8) Without consent means:
    (a)(i) The victim was compelled to submit due to the
    use of force or threat of force or coercion, or (ii) the vic-
    tim expressed a lack of consent through words, or (iii) the
    victim expressed a lack of consent through conduct, or
    (iv) the consent, if any was actually given, was the result
    of the actor’s deception as to the identity of the actor or
    the nature or purpose of the act on the part of the actor;
    (b) The victim need only resist, either verbally or
    physically, so as to make the victim’s refusal to consent
    genuine and real and so as to reasonably make known to
    the actor the victim’s refusal to consent[.] 9
    (c) Discussion
    (i) K.G.’s Testimony
    Anders’ first sufficiency argument asserts that the court
    should not have considered K.G.’s testimony, because it was
    “uncorroborated and materially inconsistent.” 10 And without
    K.G.’s testimony, he argues, the evidence was insufficient to
    support his conviction.
    Anders acknowledges that 
    Neb. Rev. Stat. § 29-2028
     (Reissue
    2016) “did away with the [victim] corroboration requirement in
    sexual assault cases.” 11 However, Anders asserts that § 29-2028
    should not apply when the victim’s testimony is inconsistent
    with prior statements. Anders alleges that K.G.’s trial testi-
    mony was materially inconsistent with the affidavit she used
    to seek a protection order against him and with her pretrial
    deposition. In that testimony, Anders claims, K.G. stated that
    he never sexually penetrated her before her 16th birthday.
    9
    § 28-318(6) and (8) (emphasis supplied).
    10
    Brief for appellant at 33.
    11
    Id.
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    Although K.G.’s deposition appears in our record, her pro-
    tection order application does not. But Anders’ argument fails
    for two more basic reasons.
    [5] First, it contradicts the corroboration statute. Since 1989,
    the State has not been required to corroborate a victim’s testi-
    mony in cases of first degree sexual assault; if believed by the
    finder of fact, the victim’s testimony alone is sufficient. 12
    [6] Second, it disregards our standard of review. It is not
    in the purview of the appellate court to determine the cred-
    ibility of witnesses on appeal, as such determinations are for
    the finder of fact. 13 We decline to resolve evidentiary conflicts,
    pass on witness credibility, evaluate explanations, or reweigh
    the evidence.
    (ii) Without Consent
    Anders’ second insufficiency argument relies upon the statu-
    tory definitions of the phrase “without consent.” Anders argues
    the evidence was insufficient to prove that he induced K.G.’s
    consent through deception or compelled her to submit through
    coercion.
    Because the first time that Anders sexually penetrated K.G.
    was after he claimed he needed to do so to “adjust” her pelvis,
    we begin with deception.
    a. Deception
    Anders argues there was insufficient evidence to prove that
    he used deception to sexually penetrate K.G. He contends that
    his statements—expressing a purpose to sexually penetrate
    K.G. to “aid her physical recovery from workouts” 14—were not
    deceptive, because it was not “objectively reasonable” for her
    to believe that was the purpose of his conduct. 15 Anders’ argu-
    ment requires this court to interpret § 28-318(8)(a)(iv).
    12
    State v. Mrza, 
    supra note 3
    .
    13
    See State v. Price, 
    306 Neb. 38
    , 
    944 N.W.2d 279
     (2020).
    14
    Brief for appellant at 17.
    15
    
    Id.
     (emphasis omitted).
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    [7-9] When interpreting a statute, the starting point and
    focus of the inquiry is the meaning of the statutory language,
    understood in context. 16 Our analysis begins with the text,
    because statutory language is to be given its plain and ordinary
    meaning, and an appellate court will not resort to interpretation
    to ascertain the meaning of statutory words which are plain,
    direct, and unambiguous. 17 Neither is it within the province of
    the courts to read meaning into a statute that is not there or to
    read anything direct and plain out of a statute. 18
    [10] Under § 28-318(8)(a)(iv), a victim does not consent to
    sexual penetration if “the consent, if any was actually given,
    was the result of the actor’s deception as to the identity of
    the actor or the nature or purpose of the act on the part of the
    actor.” The words of the statute thus impose two requirements
    to hold an actor responsible for sexual penetration of a victim.
    The actor must employ deception regarding either the identity
    of the actor or the nature and purpose of the act on the part
    of the actor. And the consent given, if any, must be the result
    of the deception. Here, there is no suggestion that there was
    any deception as to the identity of the actor; rather, the theory
    of deception focused on the nature and purpose of Anders’
    “treatment.”
    [11] Deception is not statutorily defined. Legal dictionaries
    have commonly defined “deception” as follows: “The act of
    deliberately causing someone to believe that something is true
    when the actor knows it to be false. . . . A trick intended to
    make a person believe something untrue.” 19 But, more impor-
    tant, the word “deception,” as used in § 28-318(8)(a)(iv), has a
    16
    State v. Taylor, 
    supra note 7
    .
    17
    
    Id.
    18
    
    Id.
    19
    See, Black’s Law Dictionary 510 (11th ed. 2019); “Deception,” Merriam-
    Webster.com, https://www.merrriam-webster.com/dictionary/deception (last
    visited July 7, 2022) (“the act of causing someone to accept as true or
    valid what is false or invalid”).
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    plain and ordinary meaning: words or conduct, or both words
    and conduct, causing the victim to believe what is false. This
    derives from two ordinary definitions. “[D]eception” is the
    “action of deceiving or cheating,” the “fact or condition of
    being deceived,” or “[t]hat which deceives; a piece of trickery;
    a cheat, sham.” 20 “[D]eceive,” in turn, is to “cause to believe
    what is false; to mislead as to a matter of fact, lead into error,
    impose upon, delude, ‘take in.’” 21
    Here, Anders argues, it is “wholly unreasonable for an intel-
    ligent, emotionally, and socially well-adjusted high school
    student to believe in the early period of her weight training an
    obvious and self-serving lie by her trainer that digital sexual
    penetration would aid her recovery from workouts.” 22 Thus, he
    continues, even if “it happened as she claims, [K.G.’s] belief in
    . . . Anders’ statements [was] unreasonable.” 23
    [12] In part, Anders’ argument attempts to add words to
    § 28-318(8)(a)(iv). He invites us to insert a “reasonable reli-
    ance requirement” into the statute. 24 But in strictly constru-
    ing penal statutes, an appellate court does not supply missing
    words or sentences to make clear that which is indefinite, or to
    supply that which is not there. 25 We decline Anders’ request to
    read words into the statute.
    Mainly, however, Anders invites us to reweigh credibility.
    He asks us to second-guess the trier of fact. Viewed in the light
    most favorable to the prosecution, the evidence shows that
    the first time that Anders sexually penetrated K.G., she was a
    young teenager under his tutelage. K.G. sought treatment for
    20
    See “Deception,” Oxford English Dictionary Online, https://www.oed.
    com/view/Entry/48134 (last visited July 7, 2022).
    21
    See “Deceive,” Oxford English Dictionary Online, https://www.oed.com/
    view/Entry/48096 (last visited July 7, 2022).
    22
    Brief for appellant at 18.
    23
    Id.
    24
    See id.
    25
    State v. Johnson, 
    310 Neb. 527
    , 
    967 N.W.2d 242
     (2021).
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    pain she was suffering from training, and Anders had her lie
    down on a chiropractic bed at his gym. Anders then told K.G.
    that he needed to sexually penetrate her with his fingers to
    “adjust” her pelvis. Anders was 35 years her senior.
    Anders occupied a position of trust, power, and authority
    over K.G. Could a reasonable fact finder conclude that Anders
    used that trust, power, and authority to cause K.G. to believe in
    something false, specifically, the nature and purpose of his act
    in penetrating her? In light of the evidence viewed most favor-
    ably to the prosecution, the question answers itself.
    Moreover, Anders used deception for years to obtain K.G.’s
    consent and escalate the nature of the sexual penetration. Any
    time that K.G. protested being sexually penetrated, Anders
    deceptively stated that it was necessary for her “recovery”
    from her training. Then, K.G. would consent.
    The court did not err in convicting Anders of first degree
    sexual assault. There was sufficient evidence to support Anders’
    conviction through the use of deception.
    b. Coercion
    [13] Because we found that the evidence was sufficient to
    prove that Anders sexually penetrated K.G. through decep-
    tion, we need not address this argument. Where there is suf-
    ficient evidence to support a conviction under one theory
    of guilt, an appellate court need not consider whether the
    evidence was sufficient to support the alternative theory or
    theories of guilt. 26
    2. Ineffective Assistance of Counsel
    (a) Standard of Review
    [14,15] 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 per­
    formance which is known to the defendant or is apparent from
    26
    See State v. McCurdy, 
    301 Neb. 343
    , 
    918 N.W.2d 292
     (2018).
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    the record; otherwise, the issue will be procedurally barred in a
    subsequent postconviction proceeding. 27 The fact that an inef-
    fective assistance of counsel claim is raised on direct appeal
    does not necessarily mean that it can be resolved. The deter-
    mining factor is whether the record is sufficient to adequately
    review the question. 28
    [16-19] Generally, to prevail on a claim of ineffective assist­
    ance of counsel under Strickland v. Washington, 29 the defend­ant
    must show that his or her counsel’s performance was deficient
    and that this deficient performance actually prejudiced the
    defendant’s defense. 30 To show that counsel’s performance
    was deficient, a defendant must show that counsel’s perform­
    ance did not equal that of a lawyer with ordinary training and
    skill in criminal law. 31 To show prejudice, the defendant must
    demonstrate a reasonable probability that but for counsel’s
    deficient performance, the result of the proceeding would have
    been different. A reasonable probability is a probability suffi-
    cient to undermine confidence in the outcome. 32 In determining
    whether trial counsel’s performance was deficient, there is a
    strong presumption that counsel acted reasonably. 33
    [20,21] In proceedings where the Nebraska Evidence
    Rules apply, the admissibility of evidence is controlled by the
    Nebraska Evidence Rules; judicial discretion is involved only
    when the rules make discretion a factor in determining admis-
    sibility. 34 Where the Nebraska Evidence Rules commit the
    evidentiary question at issue to the discretion of the trial court,
    27
    State v. Mrza, 
    supra note 3
    .
    28
    
    Id.
    29
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    30
    State v. Mrza, 
    supra note 3
    .
    31
    
    Id.
    32
    
    Id.
    33
    
    Id.
    34
    State v. Lierman, 
    305 Neb. 289
    , 
    940 N.W.2d 529
     (2020).
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    an appellate court reviews the admissibility of evidence for an
    abuse of discretion. 35
    [22] Whether cumulative error deprived a criminal defendant
    of his or her Sixth Amendment right to a trial by an impartial
    jury presents a question of law to be reviewed de novo. 36
    (b) Discussion
    [23] We must address two preliminary matters. First, we
    emphasize that we restrict our analysis to only those errors
    that are assigned and specifically alleged. An alleged error
    must be both specifically assigned and specifically argued in
    the brief of the party asserting the error to be considered by
    an appellate court. 37 Further, assignments of error on direct
    appeal regarding ineffective assistance of trial counsel must
    specifically allege deficient performance, and an appellate
    court will not scour the remainder of the brief in search of
    such specificity. 38
    [24] Anders does not limit his arguments regarding inef-
    fective assistance of counsel to his assigned errors. Some of
    Anders’ errors also lack the specificity we demand on direct
    appeal. We acknowledge that Anders filed his brief pro se.
    But a pro se party is held to the same standards as one who
    is represented by counsel. 39 Therefore, we only consider those
    arguments that are specifically raised in his assignments
    of error.
    Additionally, while Anders’ appellate counsel was different
    from his trial counsel, he does not specify in his assignments of
    error which trial counsel was ineffective. Technically, Anders’
    initial counsel, primary counsel, and postverdict counsel were
    all trial counsel.
    35
    
    Id.
    36
    State   v.   Figures, 
    supra note 5
    .
    37
    State   v.   Wood, 
    310 Neb. 391
    , 
    966 N.W.2d 825
     (2021).
    38
    State   v.   Mrza, 
    supra note 3
    .
    39
    State   v.   Sellers, 
    290 Neb. 18
    , 
    858 N.W.2d 577
     (2015).
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    Despite Anders’ generality, we will consider his assignments
    of ineffective assistance of counsel, because we infer from the
    specific allegations of deficient performance that he is refer-
    ring to his primary counsel. Anders’ assignments of ineffective
    assistance of counsel discuss only pretrial and trial matters
    during which he was represented by primary counsel. For the
    remainder of our analysis, we will refer to Anders’ primary
    counsel as “trial counsel.”
    (i) Expert Testimony Regarding Coercion
    Anders assigns that his trial counsel was ineffective by fail-
    ing to “insist upon expert testimony as to psychological coer-
    cion.” We read this assignment of error as recasting Anders’
    sufficiency of the evidence argument regarding psychological
    coercion into an effective assistance of counsel claim.
    Anders’ assignment lacks merit, because his trial coun-
    sel objected to the sufficiency of the evidence by moving to
    dismiss the charge against Anders after the State completed
    its presentation of evidence. Further, we found the evidence
    sufficient to convict Anders—albeit under a different theory
    of guilt. Therefore, Anders’ trial counsel was not deficient for
    failing to “insist” on expert testimony regarding psychologi-
    cal coercion.
    (ii) Deception
    Anders assigns that his trial counsel was ineffective by
    “[f]ailing to argue [sic] reliance upon deception as to the nature
    or purpose of a sexual act must be objectively reasonable.”
    For almost identical reasons as the previous assignment, we
    find Anders’ assignment lacks merit. Anders’ trial counsel did
    object, and we have found sufficient evidence supporting the
    theory of deception.
    (iii) Hearsay
    Anders assigns that he received ineffective assistance of
    counsel, because his trial counsel did not object to “inadmis-
    sible single, double, and triple hearsay.” Anders’ assignment of
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    error does not allege what specific testimony his trial counsel
    should have objected to as inadmissible hearsay. This court
    shall not scour Anders’ brief to rectify his lack of specificity.
    Therefore, we will not address this claim of ineffective assist­
    ance of counsel.
    (iv) M.C.
    Anders assigns that his trial counsel was ineffective by fail-
    ing to object to M.C.’s testimony at trial for being “an alleg-
    edly prior bad act that was dissimilar, did not constitute a crime
    of sexual assault under [§] 27-413 . . . , and was unduly preju-
    dicial under [§] 27-403.” Although Anders cites to 
    Neb. Rev. Stat. § 27-413
     (Reissue 2016), that section provides a defini-
    tion pertinent to § 27-414—the section authorizing evidence of
    similar crimes in sexual assault cases. We understand Anders’
    argument to rely on the latter section.
    Pursuant to § 27-414, evidence of the accused’s prior com-
    mission of another offense of sexual assault is admissible if
    there is clear and convincing evidence that the accused com-
    mitted the other offense. 40 Section 27-414 requires a hearing
    outside the presence of the jury before the court admits such
    evidence. 41 Subsection (3) of the statute also mandates:
    At the hearing, the rules of evidence shall apply and the
    court shall apply a section 27-403 balancing and admit
    the evidence unless the risk of prejudice substantially out-
    weighs the probative value of the evidence. In assessing
    the balancing, the court may consider any relevant factor
    such as (a) the probability that the other offense occurred,
    (b) the proximity in time and intervening circumstances
    of the other offenses, and (c) the similarity of the other
    acts to the crime charged. 42
    40
    See State v. Valverde, 
    286 Neb. 280
    , 
    835 N.W.2d 732
     (2013).
    41
    See 
    id.
    42
    See § 27-414(3).
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    At the § 27-414 hearing, M.C. testified that Anders deceived
    her, ran his fingers up her thigh to her pelvic area, and “swirled
    his hands all over [her] breasts.” These actions constituted third
    degree sexual assault. 43
    The court issued a written order, overruling Anders’ objec-
    tion and allowing M.C. to testify at trial. The court con-
    ducted a § 27-403 balancing test and considered the factors in
    § 27-414(3). The court found that there was clear and convinc-
    ing evidence “the incident [M.C.] testified about occurred,”
    noted that it occurred during the same period the State alleged
    that Anders sexually assaulted K.G., and noted that “both [M.C.
    and K.G.] allege that [Anders] told them that he would need to
    penetrate their vagina in order to properly adjust them.”
    Anders’ trial counsel was not ineffective for failing to renew
    his objection to M.C.’s testimony under § 27-414, because it
    would have been futile to do so. The court did not abuse its
    discretion in allowing M.C. to testify at trial, and the record
    does not support the notion that the court would have reversed
    its ruling.
    (v) Ex-Business Partner
    Anders assigns that he received ineffective assistance of
    counsel because his trial counsel “[f]ail[ed] to impeach [his
    ex-business partner] about his previous felony convictions,
    to object to his testimony as improper evidence of prior bad
    acts, to object to defense witnesses being questioned about
    [his] testimony, and the financial windfall [he] would derive
    from [Anders’] being convicted.” This assignment features four
    claims. We will address them in turn.
    a. Felony Convictions
    Anders argues that his trial counsel was ineffective because
    he did not impeach his ex-business partner for having previous
    43
    See, § 27-414(1); § 28-318(5); 
    Neb. Rev. Stat. § 28-320
    (1) (Reissue
    2016).
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    felony convictions. The record is sufficient to address this
    claim, but Anders’ argument lacks merit.
    Anders’ trial counsel questioned Anders’ ex-business part-
    ner and revealed that he was “arrested for a crime and actu-
    ally incarcerated between 2011 and 2015” and was, at one
    point, on “work release” when working for Anders. Therefore,
    Anders’ trial counsel was not deficient regarding his “[f]ailure
    to impeach [his ex-business partner].”
    b. Prior Bad Act
    Anders also argues his trial counsel should have objected
    to his ex-business partner’s testimony that he saw Anders kiss
    K.G., because it was inadmissible evidence of a prior bad
    act under § 27-414. The record is insufficient to address this
    assignment.
    [25-27] The decision whether or not to object has long
    been held to be part of trial strategy. 44 When reviewing claims
    of alleged ineffective assistance of counsel, trial counsel is
    afforded due deference to formulate trial strategy and tactics. 45
    There is a strong presumption that counsel acted reasonably,
    and an appellate court will not second-guess reasonable strate-
    gic decisions. 46
    The record is devoid of evidence that would allow us to
    determine whether Anders’ trial counsel chose to not object
    to Anders’ ex-business partner’s testimony regarding the kiss
    as part of a trial strategy. Therefore, the record is insufficient
    to adequately review this claim of ineffective assistance of
    counsel.
    c. Defense Witnesses
    Anders presents no argument to support his claim that his
    trial counsel was ineffective for failing to object to defense
    44
    See State v. Huston, 
    291 Neb. 708
    , 
    868 N.W.2d 766
     (2015).
    45
    See 
    id.
    46
    
    Id.
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    witnesses’ being questioned about the ex-business partner’s
    testimony. Therefore, we will not consider this claim of inef-
    fective assistance of counsel.
    d. Financial Motives
    Finally, Anders argues that his trial counsel was ineffective
    for questioning his ex-business partner regarding any financial
    motives for testifying. Anders attempts to support this argu-
    ment by reference to materials entirely outside the record.
    While Anders sufficiently alleges this portion of his assignment
    of error, the record is insufficient for this court to address this
    claim of ineffective assistance of counsel.
    (vi) Text Messages
    Anders assigns that his trial counsel was ineffective for
    “[f]ailing to object to inadmissible text messages from
    [Anders’] and [K.G.’s] cell phones.” Anders does not specify
    in what manner the text messages were inadmissible in his
    assignment of error. Therefore, this claim of ineffective assist­
    ance of counsel lacks the specificity required for this court to
    address it.
    (vii) K.G.’s Statements
    Anders assigns that his trial counsel was ineffective for
    “[f]ailing to cross-examine [K.G.] about the inconsistent time
    periods of [his] alleged misconduct between her trial testimony
    and previous sworn statements.” The previous sworn state-
    ments that Anders cites are K.G.’s deposition for his trial and
    an affidavit she attached to her petition to seek a protection
    order against him. Anders claims “[K.G.] was clear no sexual
    penetration of her by [Anders] occurred before her 16th birth-
    day, and that all incidents occurred inside [his] gym.” 47
    Anders’ trial counsel was not deficient for not cross-
    examining K.G. about her statements in her deposition because
    47
    Brief for appellant at 34.
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    they were not inconsistent with her trial testimony. In her
    deposition, K.G. testified, “That adjustment where he stuck
    his fingers into my vaginal canal and adjusted my pelvis . . .
    occurred when I was fifteen . . . I remember the first time that
    had happened my mom came and picked me up.” K.G. also
    testified that Anders and K.G. had “sexual relations” outside
    his gym—during their travels to weightlifting competitions.
    However, the record is insufficient for this court to assess
    Anders’ claim that K.G. made inconsistent statements in her
    protection order affidavit, because the affidavit is not in the
    record. Therefore, this court cannot address this portion of
    Anders’ claim of ineffective assistance of counsel.
    (viii) K.G.’s Mental State
    Anders assigns his trial counsel was ineffective for “[f]ailing
    to seek the counseling records of [K.G.’s therapist]” under State
    v. Trammell 48 “to cross examine [him] thereon, and to retain a
    defense expert to determine and testify if [K.G.] was suffer-
    ing from false memory syndrome, and whether or not [K.G.’s]
    reliance upon any deception by [Anders] was reasonable and/
    or a result of psychological coercion.” Anders argues that his
    trial counsel’s failure to obtain K.G.’s counseling records pre-
    vented him from being able to sufficiently cross-examine her
    therapist and prove that her testimony was unreliable due to a
    mental condition.
    Because Anders’ trial counsel never filed a motion pur-
    suant to Trammell and presented evidence under the estab-
    lished procedure, the record is insufficient for this court to
    assess whether his trial counsel was ineffective for failing to
    seek K.G’s counseling records. 49 Consequently, we also can-
    not address Anders’ claim that his trial counsel was ineffective
    for failing to cross-examine K.G.’s therapist and present expert
    testimony regarding K.G.’s mental state, because these claims
    48
    See State v. Trammell, 
    supra note 4
    .
    49
    See 
    id.
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    are conditioned upon his trial counsel’s obtaining her counsel-
    ing records. This court cannot address these claims based upon
    the record before us.
    (ix) Cumulative Error
    [28] Anders concludes his assignments of error regarding
    ineffective assistance of counsel by arguing that the cumulative
    effect of his trial counsel’s deficient performance resulted in
    cumulative error. We have recognized the doctrine of cumu-
    lative error in the context of a criminal jury trial. 50 Although
    one or more trial errors might not, standing alone, constitute
    prejudicial error, their cumulative effect may be to deprive the
    defendant of his or her constitutional right to a public trial by
    an impartial jury. 51
    [29] However, we note that in a case tried to the court with-
    out a jury, there is a presumption that the trial court, in reach-
    ing its decision, considered only evidence that is competent
    and relevant, and this court will not overturn such a decision
    where there is sufficient material, competent, and relevant evi-
    dence to sustain the judgment. 52 This presumption is a principle
    of appellate procedure which requires an appellant to show that
    the trial court actually used erroneously admitted evidence for
    the judgment or decision against the appellant. 53
    The doctrine of cumulative error does not support Anders’
    argument. The majority of Anders’ claims of ineffective assist­
    ance of counsel are without merit or not sufficiently alleged.
    The remaining assignments of error, for which the record is
    insufficient to address in this direct appeal, cannot form the
    basis for a claim of cumulative error. 54
    50
    See   State   v.   Stelly, 
    304 Neb. 33
    , 
    932 N.W.2d 857
     (2019).
    51
    See   State   v.   Garcia, 
    302 Neb. 406
    , 
    923 N.W.2d 725
     (2019).
    52
    See   State   v.   Tomes, 
    218 Neb. 148
    , 
    352 N.W.2d 608
     (1984).
    53
    See   State   v.   Lomack, 
    239 Neb. 368
    , 
    476 N.W.2d 237
     (1991).
    54
    See   State   v.   Stelly, 
    supra note 50
    .
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    3. Sentence
    Finally, Anders assigns that his sentence was excessive and
    unconstitutional. Anders’ assignment lacks merit.
    (a) Standard of Review
    [30] A sentence imposed within the statutory limits will not
    be disturbed on appeal in the absence of an abuse of discretion
    by the trial court. 55 We have already recited the definition of
    abuse of discretion.
    (b) Discussion
    (i) Excessive
    Anders asserts that his sentence of 25 to 30 years’ imprison-
    ment was clearly excessive. Anders argues the court improp-
    erly applied the well-established factors and applicable legal
    principles. We disagree.
    Anders’ sentence was within the statutory limits, and the
    court considered the well-established factors and applicable
    legal principles in its sentencing decision. As stated by the
    court, Anders used his “position of authority, command, influ-
    ence” to “manipulate[] and isolate[]” a teenager into having
    sexual intercourse with someone 35 years her senior. Anders
    also showed no remorse for his actions.
    The court’s decision was not untenable, unreasonable, or
    clearly against justice or conscience, reason, and evidence.
    Therefore, Anders’ sentence was not excessive.
    (ii) Unconstitutional
    Anders also challenges that his sentence is unconstitutional
    under art. I, § 9, of the Nebraska Constitution and the Eighth
    Amendment to the U.S. Constitution, which prohibit the inflic-
    tion of cruel and unusual punishment. Anders argues that his
    sentence must be proportionate to others sentenced for similar
    crimes. Again, we disagree.
    55
    State v. Blake, 
    310 Neb. 769
    , 
    969 N.W.2d 399
     (2022).
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    [31] We have previously considered and rejected this broad
    proportionality claim. 56 The constitutional protection against
    cruel and unusual punishment does not require strict propor-
    tionality between crime and sentence, but, rather, forbids only
    extreme sentences that are grossly disproportionate to the
    crime. 57 The sentencing court was under no obligation to con-
    duct a comparative analysis of similar cases—an inquiry that
    would be entirely impractical for trial courts to undertake. 58
    We find that Anders’ sentence did not constitute cruel and
    unusual punishment. Anders’ sentence properly reflected the
    seriousness of the crime committed and was proportionate for
    the offense and the offender.
    VI. CONCLUSION
    There was sufficient evidence to support Anders’ conviction
    for first degree sexual assault. Further, Anders did not receive
    an excessive sentence. Anders’ ineffective assistance of counsel
    claims either lack merit or cannot be addressed on this record.
    We affirm Anders’ conviction and sentence.
    Affirmed.
    56
    See State v. Jones, 
    297 Neb. 557
    , 
    900 N.W.2d 757
     (2017).
    57
    See 
    id.
    58
    See State v. Morton, 
    310 Neb. 355
    , 
    966 N.W.2d 57
     (2021).