State v. Lee , 304 Neb. 252 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/11/2019 09:06 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    304 Nebraska R eports
    STATE v. LEE
    Cite as 
    304 Neb. 252
    State of Nebraska, appellee,
    v. Talon J. Lee, appellant.
    ___ N.W.2d ___
    Filed October 11, 2019.   No. S-18-702.
    1. Rules of Evidence: Other Acts: Appeal and Error. An appellate court
    reviews for abuse of discretion a trial court’s evidentiary rulings on the
    admissibility of a defendant’s other crimes or bad acts under Neb. Evid.
    R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), or under the
    inextricably intertwined exception to the rule.
    2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
    apply, the admissibility of evidence is controlled by such rules; judicial
    discretion is involved only when the rules make discretion a factor in
    determining admissibility.
    3. 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.
    4. Effectiveness of Counsel: Appeal and Error. In reviewing claims of
    ineffective assistance of counsel on direct appeal, an appellate court
    decides only whether the undisputed facts contained within the record
    are sufficient to conclusively determine whether counsel did or did not
    provide effective assistance and whether the defendant was or was not
    prejudiced by counsel’s alleged deficient performance.
    5. Jury Instructions: Appeal and Error. Whether jury instructions are
    correct is a question of law, which an appellate court resolves indepen-
    dently of the lower court’s decision.
    6. Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
    7. Rules of Evidence: Other Acts. Inextricably intertwined evidence
    includes evidence that forms part of the factual setting of the crime, is
    so blended or connected to the charged crime that proof of the charged
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    crime will necessarily require proof of the other crimes or bad acts,
    or is necessary for the prosecution to present a coherent picture of the
    charged crime.
    8.   ____: ____. The State is entitled to present a coherent picture of the
    facts of the crime charged, and evidence of other conduct that forms
    an integral part of the crime charged is not rendered inadmissible
    under Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2016),
    merely because the acts are criminal in their own right, but have not
    been charged.
    9.   Jury Instructions: Proof: Appeal and Error. In an appeal based on
    a claim of an erroneous jury instruction, the appellant has the burden
    to show that the questioned instruction was prejudicial or otherwise
    adversely affected a substantial right of the appellant.
    10.   Jury Instructions: Appeal and Error. All the jury instructions must
    be read together, and if, taken as a whole, they correctly state the law,
    are not misleading, and adequately cover the issues supported by the
    pleadings and the evidence, there is no prejudicial error necessitat-
    ing reversal.
    11.   ____: ____. Whether jury instructions are correct is a question of law,
    which an appellate court resolves independently of the lower court’s
    decision.
    12.   Sentences: Appeal and Error. When a trial court’s sentence is within
    the statutory guidelines, the sentence will be disturbed by an appellate
    court only when an abuse of discretion is shown.
    13.   Judgments: Words and Phrases. 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.
    14.   Sentences. The appropriateness of a sentence is necessarily a subjec-
    tive judgment and includes the sentencing judge’s observation of the
    defendant’s demeanor and attitude and all the facts and circumstances
    surrounding the defendant’s life.
    15.   Effectiveness of Counsel: 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 ineffec-
    tive performance which is known to the defendant or is apparent from
    the record.
    16.   Effectiveness of Counsel: Proof. 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 per­
    formance actually prejudiced the defendant’s defense.
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    17. ____: ____. To show deficient performance in a claim of ineffective
    assistance of counsel, a defendant must show that counsel’s performance
    did not equal that of a lawyer with ordinary training and skill in crimi-
    nal law.
    18. ____: ____. To show prejudice in a claim of ineffective assistance of
    counsel, the defendant must demonstrate a reasonable probability that
    but for counsel’s deficient performance, the result of the proceeding
    would have been different.
    19. Effectiveness of Counsel: Records. Trial counsel cannot be ineffec-
    tive for failing to do that which the record affirmatively establishes
    was done.
    20. Hearsay. Statements are not hearsay if they are offered to show the
    effect on the listener.
    Appeal from the District Court for Douglas County: Gary B.
    R andall, Judge. Affirmed.
    Stephen P. Kraft for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. NATURE OF CASE
    Defendant was charged with two counts of sexual assault
    of a child in the first degree, one count of attempted sexual
    assault of a child in the first degree, one count of sexual assault
    of a child in the third degree, and one count of incest with
    a victim age 17 or under. After trial, a jury found defendant
    guilty and convicted him on all charges. The district court
    sentenced him to an aggregate period of 100 years’ to life
    imprisonment, plus an additional imprisonment term of 32 to
    73 years. Defendant appeals his convictions and sentences.
    On appeal, defendant assigns a number of evidentiary errors,
    including errors involving Neb. Evid. R. 403, Neb. Rev. Stat.
    § 27-403 (Reissue 2016) (Rule 403); Neb. Evid. R. 404, Neb.
    Rev. Stat. § 27-404 (Reissue 2016) (Rule 404); and Neb. Evid.
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    R. 412, Neb. Rev. Stat. § 27-412 (Reissue 2016) (Rule 412).
    Defendant also alleges that the district court inappropriately
    instructed the jury regarding venue in this case. We affirm the
    decision of the district court.
    II. FACTS
    1. Charges
    On September 19, 2017, the State of Nebraska charged
    Talon J. Lee with two counts of sexual assault of a child in
    the first degree, a Class IB felony; one count of attempted
    sexual assault of a child in the first degree, a Class II felony;
    one count of sexual assault of a child in the third degree, a
    Class IIIA felony; and one count of incest with a victim age 17
    or under, a Class IIA felony. The charges arose from reports of
    Lee’s sexual abuse against R.W., Lee’s 10-year-old daughter,
    and another girl, M.B., who was 9 to 10 years old at the time
    of the alleged abuse. Lee pled not guilty to the State’s charges,
    and the case proceeded to trial.
    2. Motion in Limine
    Prior to trial, the State made a motion in limine seeking
    to admit at trial evidence of a sexual assault of R.W. that
    occurred in Iowa shortly after the incidents of sexual assault
    of R.W. and M.B. being charged in this case. Specifically,
    the State wished to introduce at trial witness testimony as to
    R.W.’s statements that Lee sexually penetrated her, made her
    “play with his private part,” and showed her pornographic
    videos at Lee’s Iowa home approximately 3 months after the
    incidents occurring in Nebraska. The State’s motion alleged
    that this evidence was relevant and admissible because it was
    inextricably intertwined with Lee’s current charges and, thus,
    not subject to Rule 404. Alternatively, the State alleged the
    testimony was admissible under Rule 404(2) and Neb. Evid.
    R. 414, Neb. Rev. Stat. § 27-414 (Reissue 2016) (Rule 414).
    The State withdrew its argument regarding Rule 414, how-
    ever, prior to the hearing. The defense claimed that the Iowa
    incident should be excluded because, unlike other incidents
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    found to be admissible under our case law as inextricably
    intertwined, the Iowa assault was not one continuous chain of
    events. Further, defense counsel pointed out that according to
    R.W.’s allegations, the incident in Iowa was the last incident to
    occur. So, according to the defense, the Iowa incident formed
    no part of the factual setting of the Nebraska charges and was
    not inextricably intertwined.
    The district court granted the State’s motion, ultimately
    entering two orders on the matter. In its first order, entered
    March 19, 2018, the court found that the Iowa incident was
    relevant and material to the State’s charges. As such, the dis-
    trict court concluded that the evidence related to the Iowa inci-
    dent was inextricably intertwined to the State’s charges. In the
    alternative, the district court concluded that the evidence of the
    Iowa incident was admissible under Rule 414.
    Subsequently, the district court entered a second order nunc
    pro tunc to its previous order, where it removed its analysis
    and conclusion relating to Rule 414, but reaffirmed its finding
    that the evidence was inextricably intertwined. In doing so, the
    district court stated:
    [T]he evidence of sexual abuse in Council Bluffs[,] Iowa
    is inextricably intertwined with the other allegations of
    sexual abuse [Lee] perpetrated on his daughter over the
    period of time alleged by the State and is so blended or
    connected to the charged crimes that it will be neces-
    sary to show a complete and coherent picture of this
    relationship.
    3. Lee’s Rule 412 Motion
    Lee filed a pretrial motion to obtain permission to adduce
    testimony about R.W.’s having been sexually abused in the
    past by her biological brother. According to Lee’s motion,
    this evidence was relevant to show that someone other than
    the accused was the “source of injury” to R.W. Lee’s motion
    alleged that such evidence was admissible under Rule 412 and
    that the exclusion of such evidence would “violate [his] consti-
    tutional rights.”
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    STATE v. LEE
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    304 Neb. 252
    At the hearing on Lee’s Rule 412 motion, Lee asserted that
    during the investigation in this case, R.W. disclosed that she
    was sexually abused by her brother at some point around 2016,
    when she was approximately 10 years old. R.W. reportedly
    indicated that her brother tried to penetrate her with his penis
    in the same way that Lee did. Lee acknowledged that R.W.’s
    brother had not been adjudicated of the allegations, but noted
    that there was a juvenile proceeding pending against him per-
    taining to these allegations.
    Lee argued that this alleged prior sexual assault of R.W.
    was relevant to show how R.W. had a “prior source of
    sexual knowledge.” In other words, Lee explained, the jury
    would likely be wondering how R.W., as a 10-year-old child,
    could possess the type of sexual knowledge she has if she
    was not sexually abused by Lee. The fact she has been sex­
    ually abused by her brother in the past would show why she
    has such knowledge and that it came from a source other
    than Lee.
    The State disagreed and argued that this evidence was
    inadmissible and improper because it would lead to a cred-
    ibility debate regarding R.W.’s allegations in the separate and
    unrelated matter, which would create “a trial within a trial.”
    Based on this, the State argued that any probative value of
    the incident would be outweighed by the danger of unfair
    prejudice.
    The district court denied Lee’s motion and ruled that the
    evidence at issue was inadmissible. The district court entered a
    written order on the matter, which concluded:
    There is no evidence the acts of [R.W.’s brother] have
    any relevance to the sexual assault committed by [Lee]
    or that the sexual behavior of R.W. incident to being
    assaulted by [her brother] in any way contributed to any
    physical injury of R.W. The court does not find the same
    to be relevant nor material to the charges against [Lee]
    nor would exclusion of this evidence violate the constitu-
    tional rights of [Lee].
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    4. Trial
    At trial, the State elicited testimony from both victims; the
    victims’ mothers; several members of law enforcement from
    both Omaha, Nebraska, and Iowa; and a physician who exam-
    ined R.W. The State also called witnesses employed by Project
    Harmony, a child advocacy center that serves children when
    there have been allegations of abuse, who were involved in
    the investigation. The Project Harmony employees included a
    pediatric nurse who examined and interviewed R.W. and M.B.
    and a forensic interviewer who examined and interviewed
    R.W. and M.B. The defense offered testimony from Lee’s wife,
    Nikisha Lee.
    (a) Incidents
    Testimony from R.W., M.B., and the victims’ mothers estab-
    lished the following facts.
    From the fall of 2016 to the spring of 2017, Lee was living
    with Nikisha in Council Bluffs, Iowa. R.W. lived with Lee and
    Nikisha in November and December 2016. Aside from those 2
    months, R.W. lived in Omaha with her mother.
    The victims’ mothers testified that they knew each other
    because they both have children with Lee. Lee fathered at
    least one of M.B.’s siblings. R.W. would often spend time with
    M.B. and her siblings. Lee would occasionally watch R.W.
    and M.B. when he was in Omaha, which is when the alleged
    incidents occurred. Lee was 29 years old at the time of the
    alleged incidents.
    After R.W. moved back to Omaha to live with her mother,
    R.W. and her mother stayed for a few weeks with one of
    R.W.’s mother’s friends, Jasmine Kelly. One night at approxi-
    mately 5 p.m., while they were staying with Kelly, Lee arrived
    unannounced and took R.W. to a store. When Lee and R.W.
    were leaving for the store, R.W.’s mother also left to run an
    errand. R.W.’s mother testified that this errand took about 30 to
    45 minutes. When she returned to Kelly’s house, Lee and R.W.
    were still gone. R.W.’s mother testified that she called Lee to
    find out where they were, because it was a school night and
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    R.W. needed to get home. Lee responded that they were “down
    the street” and would be home soon. As more time passed and
    Lee and R.W. still were not home, R.W.’s mother continued to
    call Lee. R.W.’s mother testified that she called Lee roughly 50
    times that night and that Lee answered only a couple of those
    calls. Lee eventually brought R.W. home around midnight.
    R.W. testified that after she and Lee left Kelly’s house that
    night, Lee drove her to a “dark place” where there was a build-
    ing with gates and a “bunch of trees.” Lee parked the car and
    asked R.W., “Can you do me a favor?” R.W. agreed, and Lee
    proceeded to suck on her finger and say “‘no teeth.’” Lee then
    asked her to suck his “private part” and told her he would
    take her to the store afterward. Lee put his “private part” in
    her mouth, and she sucked on it until “[s]ome stuff” went into
    her mouth, which she said tasted “[n]asty.” R.W. testified that
    her mother called Lee’s cell phone several times but Lee told
    her not to answer it, so she did not. Lee also told her not to
    tell anyone about what happened. He took her to the store and
    eventually back to Kelly’s house. R.W. testified that she did not
    tell anyone what happened when she got back to Kelly’s home,
    because she was scared.
    R.W. testified that another incident of abuse occurred when
    she was having a sleepover with M.B. at M.B.’s house. R.W.
    and M.B. woke up when they heard a deep voice downstairs.
    The girls went downstairs and learned that the voice was Lee’s.
    R.W. and M.B. then sat on the couch and started playing “Truth
    or Dare.” Eventually, Lee sat between them and told the girls
    that they were going to play “Dirty Truth or Dare.”
    R.W. testified that Lee made M.B. do the first dare and told
    her to suck his “private part” and said, “[Y]ou got to wake him
    up,” referring to his penis as “him.” Lee told M.B. to “play
    with it” to “wake it up,” and she complied. Lee told her to
    suck it, and it “got bigger in her mouth.” Then, according to
    R.W., while M.B. was sucking on Lee’s penis, Lee told R.W.
    to pick a dare, which she did, and he “made me play with it
    while she was sucking it.” Lee then had R.W. and M.B. take
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    turns sucking it. R.W. testified that as this was going on, Lee
    also played a video on his cell phone of “[a] girl sucking a boy
    private part.”
    M.B., through her testimony, confirmed that she and R.W.
    played a game of “Dirty Truth or Dare” with Lee in her base-
    ment the morning after R.W. spent the night. She testified that
    when she or R.W. would pick a dare, he would ask them to
    suck his “private part” or to lick each other’s “boobs,” but that
    they said no. Then, he asked R.W. “to let him finger her,” but
    R.W. again said no. M.B. said she and R.W. went upstairs for
    a while. When they came back downstairs, Lee was on his cell
    phone “watching porn,” which she described as girls with no
    clothes touching each other and doing “nasty things.” Then,
    according to M.B., Lee pulled R.W. over next to him and told
    R.W. to “lick his private part,” which R.W. did. M.B. stated
    that Lee then made M.B. move her hand up and down on his
    penis. M.B. testified that Lee also asked her to suck his penis
    but that she said no.
    R.W. and M.B. testified that on another day at M.B.’s house,
    they played “Hide and Seek” with Lee. When Lee found where
    R.W. and M.B. were hiding, he told them to kiss each other.
    Lee wanted them to kiss on the lips or to put their tongues
    in each other’s mouths, but they kissed on the cheek instead.
    R.W. testified that Lee also made them strip down to their
    underwear and a tank top and that he touched both of them on
    the buttocks.
    According to R.W. and M.B, on one of the same days that
    they played “Truth or Dare” or “Hide and Seek,” Lee called
    R.W. and M.B. into M.B.’s mother’s bedroom, where Lee was
    lying on the floor next to the bed. Lee asked the girls to “sit
    on his private part,” which neither of them did. According to
    M.B., Lee then pulled R.W. toward him and had her sit on his
    stomach. R.W. testified that she thought Lee had his clothes
    on during this incident, but M.B. testified that he did not have
    any clothes on and recalled seeing his “private part” when
    this occurred.
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    R.W. testified about another incident, involving only R.W.
    and Lee, which occurred at Lee and Nikisha’s house in Council
    Bluffs. R.W. testified that one day, when Nikisha was not
    home, Lee was lying on the bed in his bedroom and he called
    her into the room to ask for a “favor.” They watched another
    pornographic video, and Lee asked R.W. to play with his penis.
    R.W. complied. R.W. testified that Lee told her to take off her
    pants, which she did. Lee then stood up behind her and put
    his penis inside her buttocks and vagina. R.W. testified that it
    hurt, so she told Lee she needed to go to the bathroom, where
    she noticed that she was bleeding from her anus. When she
    told Lee about it, he told her to get into the bathtub. R.W.
    testified that this incident in Council Bluffs was the last time
    Lee did anything to her, although on cross-examination, she
    gave differing responses on the timeline of the sexual assaults.
    Lee objected to the evidence about the Council Bluffs incident
    on Rule 404 grounds. Lee received a continuing objection
    on these grounds to the testimony relating to the incident in
    Council Bluffs.
    R.W. testified that she did not initially tell anyone about
    any of these incidents, because Lee had told her and M.B. that
    he would “make up a bad lie” about them if they ever did so.
    Later that summer, however, in June 2017, R.W. decided to
    tell M.B.’s aunt about what Lee had been doing to her while
    she was at M.B.’s mother’s house with M.B. M.B.’s aunt
    relayed this disclosure to M.B.’s mother, who, in turn, told
    R.W.’s mother.
    R.W.’s mother testified that she got a call from M.B.’s
    mother on the night of June 22, 2017, while she was at work.
    R.W.’s mother immediately called R.W. and spoke with her
    about what she’d heard from M.B.’s mother. R.W.’s mother
    testified that when R.W. told her about the incident in Lee’s
    car, it all “ma[de] sense,” because she remembered “calling,
    calling, calling” Lee’s cell phone on the night he took R.W. to
    the store. R.W.’s mother called M.B.’s mother again after that,
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    because, based on what R.W. told her, it appeared the abuse
    also involved M.B.
    R.W.’s mother testified that she left work that night to take
    R.W. to an emergency room. She said that after the abuse was
    revealed, R.W. started acting out at school and getting into
    fights, and that she eventually got “kicked out of school.”
    On June 23, 2017, after speaking further with M.B., M.B.’s
    mother filed a police report regarding the sexual assault of
    M.B. M.B.’s mother testified that when she spoke with M.B.
    about what she had heard, M.B. started to cry and eventually
    told her things that had happened, which disclosure led to her
    decision to file a police report. M.B.’s mother confirmed that
    her house was in Omaha and said that she could recall three
    times that Lee came over to her house and watched the chil-
    dren in February and March 2017.
    (b) Dr. Cynthia Hernandez
    R.W. was seen at an emergency room in the early morn-
    ing hours of June 23, 2017. The doctor who examined R.W.,
    Dr. Cynthia Hernandez, testified that she spoke with R.W.
    about why she was there. R.W. told her that on one occasion,
    Lee put his penis in her mouth until “white stuff” came out,
    and that on another occasion, he put his penis in her vagina
    and anus, which caused her to bleed. Hernandez testified
    that R.W. told her that one of the incidents occurred about
    1 month earlier and the other about 2 months earlier. When
    Hernandez examined R.W., she did not find any signs of
    physical injury and referred R.W. to Project Harmony for a
    more detailed examination. Hernandez explained that this
    was not surprising given how much time had passed since
    the incidents. Hernandez also testified that, in general, it is
    not uncommon in cases of sexual assault for there to be no
    physical signs of trauma. However, on cross-examination,
    Hernandez agreed that signs of internal injury, especially with
    anal penetration, could possibly be detected months after an
    assault had occurred.
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    (c) Law Enforcement
    The State elicited testimony from several law enforcement
    officers who were involved in the joint investigation that was
    being conducted by the Omaha Police Department (OPD) and
    the Council Bluffs Police Department (CBPD).
    Amber Kennedy, the lead detective for CBPD, testified
    that the date range for CBPD’s investigation was January 1
    to May 13, 2017. Kennedy described that Project Harmony
    had originally referred the case to CBPD. She had watched
    the video-recorded forensic interview and determined it con-
    tained evidence to show that a crime had been committed in
    Omaha and also in Council Bluffs. After reviewing all of the
    evidence, CBPD decided that OPD needed to be involved as
    well, because it appeared that their investigations would over-
    lap. Kennedy testified that CBPD and OPD were aware of each
    other’s investigations and maintained communication through-
    out the investigations, which ultimately led to Lee’s arrest.
    Though it was asserted by Kennedy that charges have been
    filed in Iowa, there was no evidence presented of the charges
    and it was conceded that a trial had not occurred regarding the
    alleged incidents in Council Bluffs.
    From OPD, the State examined Mark McKenna and Lisa
    Crouch. McKenna testified that he was the officer who took
    M.B.’s mother’s report of the sexual abuse of M.B. McKenna
    confirmed that M.B.’s mother identified Lee in her report.
    Upon the filing of the report, McKenna forwarded the investi-
    gation to the child victim sexual assault unit.
    Crouch testified that she was a detective in the special
    victims unit, specifically the child victim sexual assault unit.
    Crouch testified that the date range of their investigation was
    January to March 2017. She stated that her involvement in this
    case began when an information report was generated through
    OPD indicating possible sexual abuse. Crouch stated that upon
    receiving that assignment, she received other information while
    observing a video-recorded forensic interview of R.W. by a
    forensic examiner at Project Harmony.
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    (d) Project Harmony
    (i) Amy Cirian
    The State called Amy Cirian, a forensic interviewer at
    Project Harmony who interviewed R.W. and M.B regard-
    ing the reported assaults. Cirian testified as to R.W.’s and
    M.B.’s demeanors throughout the forensic interview. Cirian
    described R.W.’s demeanor as calm but a little nervous and
    “fidgety,” while M.B. was calm throughout most of her inter-
    view. Cirian opined that there is no singular demeanor that she
    would expect a child to have when discussing sexual abuse,
    because many children react differently. She noted further
    that it is not her role to determine the credibility or reliability
    of the girls’ statements or disclosures, but, rather, to simply
    gather information throughout the interview process as to the
    abuse allegations.
    At the outset of this demeanor testimony, defense counsel
    objected on the basis of relevance, which was overruled by
    the district court. On cross-examination, defense counsel elic-
    ited testimony from Cirian that just as there is no particular
    behavior she can look to in order to determine whether a child
    has been sexually abused, there is no way of determining from
    behavior whether a child has not been abused.
    Cirian also testified as to certain procedures and protocols
    that are followed throughout these interviews. Cirian’s testi-
    mony specifically detailed what actions were taken or what
    protocols were triggered in response to the girls’ disclosures.
    Cirian testified that per these protocols, she is required to meet
    with the multidisciplinary team only when there is a sexual
    assault disclosure made at the forensic interview. Cirian stated
    that she met with the multidisciplinary team after interviewing
    the girls.
    (ii) Sarah Cleaver
    R.W. and M.B. were examined by a pediatric nurse prac-
    titioner at Project Harmony. Both of their physical examina-
    tions came back normal with no signs of injury or sexually
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    transmitted diseases. The nurse practitioner, Sarah Cleaver,
    who has conducted over 1,000 sexual assault examinations,
    testified that it is normal to find no signs of physical injury in
    child sexual assaults, because children often do not disclose
    right away and their bodies heal very quickly. Cleaver testi-
    fied that an estimated 95 percent of children who report sexual
    abuse have normal physical examinations.
    Cleaver testified that during R.W.’s examination, R.W. indi-
    cated that Lee’s penis had been in her mouth more than once
    and that his ejaculate had been in her mouth. Cleaver also
    stated R.W. claimed that Lee had penetrated her anus with
    his penis one time and that he took the condom off and con-
    tinued to penetrate her anus, but that there was no ejaculate.
    R.W. reported that bleeding followed after she was penetrated
    anally. Cleaver testified that R.W. reported that Lee penetrated
    R.W. vaginally while wearing a condom. Finally, Cleaver testi-
    fied that M.B. indicated during her examination that Lee had
    touched her buttocks over her clothes and had made her touch
    his penis with her hand.
    (e) Nikisha
    After the State rested, Lee called Nikisha to testify. Nikisha
    confirmed that R.W. would occasionally stay with her and Lee
    between January and March 2017. She testified that when R.W.
    stayed with them in Council Bluffs, they always interacted as
    a family and Lee was never alone with R.W. at their home.
    The only interactions Nikisha observed between Lee and R.W.
    were normal father-daughter activities. Nikisha acknowledged,
    however, that Lee would occasionally go to Omaha without
    her to care for his other children and that he may have had
    contact with R.W. and M.B. at those times.
    5. Jury Instruction Conference
    At the close of all the evidence, the parties held a jury
    instruction conference outside the presence of the jury. During
    the conference, the parties focused on the venue element
    of count I, sexual assault of a child in the first degree, and
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    count V, incest with a victim age 17 or younger. The disputed
    venue elements were addressed in jury instructions Nos. 5
    and 6.
    The relevant portion of jury instruction No. 5 provided:
    COUNT I
    ....
    The material elements which the State must prove by
    evidence beyond a reasonable doubt, in order to convict
    the Defendant of the crime of First Degree Sexual Assault
    on a Child as charged in the Amended Information are:
    1. That on or about January 1[,] 2017 through January
    31, 2017, the Defendant, Talon Lee, did subject [R.W.] to
    sexual penetration;
    2. That Defendant, Talon Lee, (a) did so in Douglas
    County, Nebraska, or (b) brought [R.W.] into or out of
    Douglas County, Nebraska in the commission of the
    offense, or (c) did an act in Douglas County, Nebraska
    instigating, procuring, promoting, or aiding in the com-
    mission of the offense;
    3. That at that time Talon Lee was nineteen years of
    age or older; and
    4. That at that time, [R.W.] was under twelve years
    of age.
    ....
    COUNT V
    ....
    The material elements which the State must prove by
    evidence beyond a reasonable doubt, in order to convict
    the Defendant of the crime of Incest of a Victim 17 or
    Under as charged in the Amended Information are:
    1. That on or about January 1, 2017 through January
    31, 2017, the Defendant Talon Lee did knowingly engage
    in sexual penetration with [R.W.];
    2. That Defendant, Talon Lee, (a) did so in Douglas
    County, Nebraska, or (b) brought [R.W.] into or out of
    Douglas County, Nebraska in the commission of the
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    offense, or (c) did an act in Douglas County, Nebraska
    instigating, procuring, promoting, or aiding in the com-
    mission of the offense;
    3. That Talon Lee and [R.W.] are parent and child; and
    4. That at that time, [R.W.] was under eighteen years
    of age.
    Also related to the venue element of counts I and V, jury
    instruction No. 6 provided:
    According to the law in the State of Nebraska, when
    an offense is committed in this state, in a car or motor
    vehicle, the accused may be tried in any county through,
    on or over which the vehicle passes in the course of its
    trip, or in the county in which the trip terminates.
    Lee objected solely to the venue element definitions for
    counts I and V of jury instruction No. 5, arguing that it incor-
    rectly incorporated language from Neb. Rev. Stat. § 29-1301.01
    (Reissue 2016). Lee argued that this statute was inapplicable
    to this case, because it applies only when an offense is alleged
    to have occurred in different counties within the state, which
    was not the case here. Lee argued that this case involved
    the possibility that Lee “crosse[d] a state line” in the proc­
    ess of committing the alleged offense, but that it did not
    involve an allegation that it occurred in two different coun-
    ties within Nebraska. As such, Lee argued that § 29-1301.01
    was inapplicable.
    The State disagreed and argued that jury instruction No.
    5 correctly incorporated § 29-1301.01. The State noted that
    there was no evidence the offense in Lee’s car occurred in
    Iowa or some other state, but argued that instruction No. 5, as
    written, nonetheless appropriately addressed the notion that a
    portion of the offense could have occurred in Douglas County
    while another portion of the offense could have occurred
    elsewhere.
    Ultimately, the district court agreed with the State and over-
    ruled Lee’s objection to jury instruction No. 5. The court read
    jury instruction No. 5 as written.
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    Neither party objected to jury instruction No. 6. Jury
    instruction No. 6 incorporated the language of Neb. Rev. Stat.
    § 29-1301.02 (Reissue 2016), which relatedly addresses venue
    for crimes committed on moving means of transportation.
    6. Jury Verdict and Sentencing
    The jury found Lee guilty as charged on all five counts. In
    June 2018, the sentencing hearing was held. The district court
    reviewed the presentence investigation report and considered
    Lee’s age, mentality, education, experience, social and cul-
    tural background, criminal record, and law-abiding conduct,
    as well as the motivations for these offenses and the nature of
    the offenses, including the presence or absence of violence.
    Based on this information, the court determined that Lee was
    a dangerous sexual predator and sentenced him as follows: 50
    years’ to life imprisonment on count I, sexual assault of a child
    in the first degree; 50 years’ to life imprisonment on count II,
    sexual assault of a child in the first degree; 20 to 50 years’
    imprisonment on count III, attempted sexual assault of a child
    in the first degree; 2 to 3 years’ imprisonment on count IV,
    sexual assault of a child in the third degree; and 10 to 20 years’
    imprisonment on count V, incest with a victim age 17 or under.
    Lee’s sentences were ordered to run consecutively, resulting in
    an aggregate period of 100 years’ to life imprisonment, plus
    an additional term of 32 to 73 years’ imprisonment. Lee was
    also ordered to register as a sex offender under Nebraska’s Sex
    Offender Registration Act.
    III. ASSIGNMENTS OF ERROR
    Lee assigns, restated and renumbered, that the district court
    erred by (1) granting the State’s motion to allow evidence that
    Lee sexually assaulted R.W. in the State of Iowa, (2) denying
    Lee’s Rule 412 motion, (3) giving erroneous and misleading
    jury instructions which relieved the State from proving essen-
    tial elements of the crimes charged, (4) failing to give a limit-
    ing instruction, and (5) imposing excessive sentences.
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    He also assigns that he received ineffective assistance of
    counsel at trial, because his trial counsel did not perform at
    least as well as a criminal lawyer with ordinary training and
    skill in the area and such deficient performance prejudiced
    his defense. Lee specifically asserts that his trial counsel (1)
    made inappropriate comments to the prosecutor and Lee, (2)
    did not review discovery with him, (3) told Lee that he could
    not call witnesses he wished to call at trial, (4) failed to
    raise a Batson1 challenge, (5) failed to litigate Lee’s motion
    to sever charges, and (6) failed to object to improper hear-
    say evidence.
    IV. STANDARD OF REVIEW
    [1] An appellate court reviews for abuse of discretion a trial
    court’s evidentiary rulings on the admissibility of a defend­
    ant’s other crimes or bad acts under Rule 404(2), or under the
    inextricably intertwined exception to the rule.2
    [2,3] In proceedings where the Nebraska Evidence Rules
    apply, the admissibility of evidence is controlled by such rules;
    judicial discretion is involved only when the rules make discre-
    tion a factor in determining admissibility.3 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.4
    [4] In reviewing claims of ineffective assistance of counsel
    on direct appeal, an appellate court decides only whether the
    undisputed facts contained within the record are sufficient to
    conclusively determine whether counsel did or did not provide
    effective assistance and whether the defendant was or was not
    prejudiced by counsel’s alleged deficient performance.5
    1
    Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
    , 
    90 L. Ed. 2d 69
    (1986).
    2
    State v. Burries, 
    297 Neb. 367
    , 
    900 N.W.2d 483
    (2017).
    3
    
    Id. 4 Id.
    5
    State v. Mendez-Osorio, 
    297 Neb. 520
    , 
    900 N.W.2d 776
    (2017).
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    [5] Whether jury instructions are correct is a question of law,
    which an appellate court resolves independently of the lower
    court’s decision.6
    [6] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.7
    V. ANALYSIS
    Lee argues that the district court erred by (1) granting the
    State’s motion to allow evidence that Lee sexually assaulted
    R.W. in the State of Iowa, (2) denying Lee’s Rule 412 motion,
    (3) giving erroneous and misleading jury instructions which
    relieved the State from proving essential elements of the
    crimes charged and failing to give a limiting instruction, and
    (4) imposing excessive sentences. Lee also asserts that he
    received ineffective assistance of counsel throughout his pro-
    ceedings below. We affirm the decision of the district court.
    1. Inextricably Intertwined Incident
    At the outset, Lee assigns that the district court abused its
    discretion by granting the State’s motion in limine, allowing
    it to admit evidence regarding R.W.’s sexual assault allega-
    tions that occurred in Iowa, and, relatedly, overruling Lee’s
    renewed objections at trial to the admission of that evi-
    dence. In its order on the motion in limine, the district court
    concluded:
    [T]he evidence of sexual abuse in Council Bluffs[,] Iowa
    is inextricably intertwined with the other allegations of
    sexual abuse [Lee] perpetrated on his daughter over the
    period of time alleged by the State and is so blended or
    connected to the charged crimes that it will be neces-
    sary to show a complete and coherent picture of this
    relationship.
    6
    State v. Paez, 
    302 Neb. 676
    , 
    925 N.W.2d 75
    (2019).
    7
    State v. Chairez, 
    302 Neb. 731
    , 
    924 N.W.2d 725
    (2019).
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    Lee, however, claims the evidence regarding the alleged inci-
    dent of sexual assault in Iowa was inadmissible under Rule
    404 and should have been excluded at trial. Specifically, Lee
    argues that the court failed to conduct a hearing pursuant to
    Rule 404(3) finding clear and convincing evidence of the
    other crime.
    [7,8] We agree with the district court that Rule 404 did
    not apply, because the alleged Iowa incident was inextricably
    intertwined with the crimes charged.8 Further, since Rule 404
    did not apply, the court was not required to conduct a hearing
    under Rule 404(3). Inextricably intertwined evidence includes
    evidence that forms part of the factual setting of the crime, is
    so blended or connected to the charged crime that proof of the
    charged crime will necessarily require proof of the other crimes
    or bad acts, or is necessary for the prosecution to present a
    coherent picture of the charged crime.9 The State is entitled to
    present a coherent picture of the facts of the crime charged,
    and evidence of other conduct that forms an integral part of
    the crime charged is not rendered inadmissible under Rule 404
    merely because the acts are criminal in their own right, but
    have not been charged.10
    The State asserts that evidence of the Iowa incident was
    integral to the development of an accurate timeline in this
    case.11 The State asserts that without the evidence of the Iowa
    incident, it would have appeared that it took R.W. much longer
    to disclose the sexual abuse than it actually did. Further, the
    absence of such evidence would have created a misleadingly
    incoherent picture that would have adversely impacted R.W.’s
    credibility.12 We agree.
    8
    See State v. Burries, supra note 2.
    9
    See 
    id. 10 State
    v. Robinson, 
    271 Neb. 698
    , 
    715 N.W.2d 531
    (2006); State v. Kelly,
    
    20 Neb. Ct. App. 871
    , 
    835 N.W.2d 79
    (2013).
    11
    See 
    id. 12 See
    id.
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    Our precedent shows that we have upheld the admission
    of evidence under the inextricably intertwined rule when the
    defendant’s other bad acts showed his pattern of sexually abus-
    ing a child or exposing the child to sexually explicit material.13
    For example, in State v. Baker,14 we held that the inextricably
    intertwined exception applied where the defendant’s other bad
    acts showed his pattern of sexually abusing the victim. In
    Baker, the State’s evidence included the victim’s testimony
    that the defendant had threatened her with harm if she reported
    him, the mother’s testimony that the defendant threatened her
    and physically assaulted her if she did not bring the victim to
    the bedroom at his direction, and the mother’s testimony that
    the defendant became sexually aroused while watching the vic-
    tim administer a massage. The defendant claimed this evidence
    was inadmissible under Rule 404(2), but we concluded the
    State was entitled to present this evidence as part of a coherent
    factual setting of the crime.
    We likewise conclude here that the district court did not
    abuse its discretion in determining the evidence of a subse-
    quent sexual assault involving the same victim was inextricably
    intertwined with the charged offenses. The evidence adduced
    at trial established that R.W. and her mother were living in
    Omaha with Kelly, one of R.W.’s mother’s friends, in January
    2017 when Lee sexually assaulted R.W. in his car, which was
    the first incident of sexual assault that occurred. Throughout
    R.W.’s testimony, she had difficulty providing the exact dates
    of the subsequent sexual assaults at M.B.’s house. Nevertheless,
    R.W. recalled that the incident in Iowa was the last incident
    that had occurred. This information was significant, because
    Hernandez testified that when R.W. spoke with her at the emer-
    gency room on June 23, 2017, R.W. told Hernandez that the
    most recent incident occurred about 1 month earlier and that
    13
    See, e.g., State v. Baker, 
    280 Neb. 752
    , 
    789 N.W.2d 702
    (2010); State v.
    McPherson, 
    266 Neb. 734
    , 
    668 N.W.2d 504
    (2003).
    14
    State v. Baker, supra note 13. See, also, State v. Cullen, 
    292 Neb. 30
    , 
    870 N.W.2d 784
    (2015).
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    another incident occurred about 2 months earlier. This infor-
    mation in its entirety creates a timeline demonstrating that the
    sexual assaults charged occurred in Omaha, lending coherence
    as to why R.W. would have reported to Hernandez that the last
    assault occurred around May 2017.
    R.W.’s testimony of the Iowa incident forms the factual
    setting of the charged offenses and is necessary to present a
    complete and coherent picture of the facts of this case. Such
    evidence showed a pattern of Lee’s sexually abusing R.W.
    and exposing her to sexually explicit material. Based on this,
    it cannot be said that the district court abused its discretion in
    admitting the testimony regarding the alleged Iowa incident
    into evidence.
    2. Defendant’s Rule 412 Motion
    Next, Lee assigns that the district court abused its discre-
    tion in denying Lee’s motion under Rule 412 seeking to admit
    testimony regarding R.W.’s sexual assault allegation against
    her brother. Lee argues that he was prejudiced by the dis-
    trict court’s denial of his motion, because evidence of R.W.’s
    alleged sexual assault by her brother would be relevant to show
    a “prior source of [R.W.’s] ‘sexual knowledge.’”15 The State
    opposed the motion and argued that this evidence was more
    prejudicial than probative because it would result in a “trial
    within a trial.” The district court agreed with the State’s argu-
    ment and reasoned, “How do we know her brother didn’t do all
    of these things? . . . I don’t think we’re going to put [R.W] on
    trial on that issue.”
    In denying Lee’s request, the district court stated:
    There is no evidence the acts of [R.W.’s brother] have
    any relevance to the sexual assault committed by [Lee]
    or that the sexual behavior of R.W. incident to being
    assaulted by [her brother] in any way contributed to any
    physical injury of R.W. The court does not find the same
    to be relevant nor material to the charges against [Lee]
    15
    See brief for appellant at 32.
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    nor would exclusion of this evidence violate the constitu-
    tional rights of [Lee].
    It is apparent from the hearing on Lee’s motion and the district
    court’s subsequent order that it excluded the evidence upon
    both Rule 403 and Rule 412 grounds.
    Lee claims that this case is similar to State v. Lavalleur,16
    in which we held it was reversible error to exclude evidence
    of other independent sexual acts involving the victim. In
    Lavalleur, the State had charged the defendant with sexually
    assaulting the victim, who was a friend and coworker of the
    defendant. At trial, the defendant sought to introduce evidence
    that the victim was involved in an intimate relationship with
    a third party on the date in question, which, according to the
    defense, gave the victim a motive to falsely report the sexual
    assault against the defendant to preserve her relationship with
    the third party. The trial court excluded the evidence, find-
    ing that it was irrelevant under Rule 403 and inadmissible
    under Rule 412. In reversing, we explained that Rule 412
    generally prohibits evidence only of sexual predisposition or
    “‘sexual behavior,’” which we explained refers to specific
    instances of conduct.17 We explained that “‘[i]f question-
    ing about [a] subject were to lead to evidence or questions
    about details of particular acts, encounters, or practices, then
    such evidence and quests are indeed covered by rape shield
    legislation . . . .’”18 But, we reasoned that the mere fact that
    the complaining witness is in an ongoing relationship raises
    no such concerns about details of particular acts, encounters,
    or practices, because being in an ongoing relationship is not
    ordinarily described as “‘sexual conduct,’” even if the rela-
    tionship involves ongoing sexual intimacy.19 Accordingly, we
    found that the evidence the defendant sought to introduce was
    16
    State v. Lavalleur, 
    289 Neb. 102
    , 
    853 N.W.2d 203
    (2014).
    17
    
    Id. at 111,
    853 N.W.2d at 212.
    18
    
    Id. 19 Id.
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    not precluded and that it was both relevant and material to the
    defense that the victim had a motive to lie about the nature
    of her sexual encounter with the defendant to “dispel any air
    of infidelity.”20
    Here, unlike Lavalleur, the defense was not seeking to
    attack the credibility of R.W. by showing that she was involved
    in another ongoing relationship which gave her a motive to lie
    about the allegations against Lee. Rather, Lee sought to intro-
    duce this evidence to show that there was some other conceiv-
    able basis for R.W.’s sexual knowledge. Lee asserts that the
    evidence of R.W.’s prior alleged sexual abuse by her brother
    was particularly relevant in this case because, without this
    evidence, “the only conclusion for the jury to make is that this
    allegation against [Lee] must have occurred or how else would
    this child know about this sort of behavior.”21
    Such evidence requires a finding of admissibility under both
    Rule 403 and Rule 412. Here, the district court agreed with the
    State’s argument that the evidence would be more prejudicial
    than probative and thus was not admissible under Rule 403. We
    do not believe the district court abused its discretion in reach-
    ing that conclusion. R.W.’s brother had not been convicted or
    adjudicated of the allegations that he had sexually assaulted
    R.W. As a result, admission of the evidence would have led to
    a potentially distracting “trial within a trial” which would have
    substantially risked confusing the issues and misleading the
    jury. Moreover, an inquiry into whether R.W. was also abused
    by her brother would have done nothing to offset M.B.’s testi-
    mony that Lee had abused her.
    3. Jury Instructions
    Next, Lee asserts that the district court erred in giving jury
    instruction No. 5, because it was misleading and relieved the
    State from proving an essential element of the crimes charged.
    20
    
    Id. at 115,
    853 N.W.2d at 214.
    21
    Brief for appellant at 32-33.
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    Specifically, Lee asserts that the district court erred by failing
    to properly instruct the jury regarding venue on both count I
    (first degree sexual assault of R.W.) and count V (incest of
    R.W.), both of which pertained to the first incident in Lee’s car
    in January 2017.
    Relatedly, Lee assigns that the district court erred by fail-
    ing to give a limiting instruction to the jury on the importance
    of keeping separate during its deliberations the charges from
    the evidence related to those charges. However, based on the
    record, Lee did not object to the court’s jury instructions on this
    basis at the trial court level. He made an objection solely as to
    jury instruction No. 5. An issue not presented to or decided on
    by the trial court is not an appropriate issue for consideration
    on appeal.22 Because this assignment was not raised below, we
    address only Lee’s assignment of error regarding jury instruc-
    tion No. 5.
    [9-11] In an appeal based on a claim of an erroneous jury
    instruction, the appellant has the burden to show that the
    questioned instruction was prejudicial or otherwise adversely
    affected a substantial right of the appellant.23 All the jury
    instructions must be read together, and if, taken as a whole,
    they correctly state the law, are not misleading, and adequately
    cover the issues supported by the pleadings and the evi-
    dence, there is no prejudicial error necessitating reversal.24
    Whether jury instructions are correct is a question of law,
    which an appellate court resolves independently of the lower
    court’s decision.25
    Lee maintains that jury instruction No. 5 incorrectly
    instructed the jury regarding venue on counts I and V, because
    the instruction did not limit the venue to Douglas County, or
    even Nebraska. He claims that jury instruction No. 5 allowed
    22
    Ecker v. E & A Consulting Group, 
    302 Neb. 578
    , 
    924 N.W.2d 671
    (2019).
    23
    State v. Mueller, 
    301 Neb. 778
    , 
    920 N.W.2d 424
    (2018).
    24
    
    Id. 25 State
    v. Paez, supra note 6.
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    the jury to find him guilty on counts I and V if they believed
    that these counts occurred “anywhere,” which effectively
    relieved the State of its burden to prove venue on these
    counts.26 He argues that the overbreadth of this instruction was
    especially prejudicial because of the evidence presented at trial
    regarding Lee’s alleged sexual abuse of R.W. in Iowa.
    Jury instructions Nos. 5 and 6, read together, set forth the
    elements for venue in this case. Jury instruction No. 5, specifi-
    cally subsection 2, incorporated the language of § 29-1301.01
    and provided that one of the material elements which must be
    proved was
    [t]hat Defendant, Talon Lee, (a) did so in Douglas County,
    Nebraska, or (b) brought [R.W.] into or out of Douglas
    County, Nebraska in the commission of the offense, or
    (c) did an act in Douglas County, Nebraska instigating,
    procuring, promoting, or aiding in the commission of
    the offense.
    Jury instruction No. 6 similarly incorporates language from
    § 29-1301.02 and provided: “[W]hen an offense is commit-
    ted in this state, in a car or motor vehicle, the accused may
    be tried in any county through, on or over which the vehicle
    passes in the course of its trip, or in the county in which the
    trip terminates.”
    Reading jury instructions Nos. 5 and 6 together, we disagree
    with Lee’s argument. When these instructions are read in con-
    junction, they correctly instruct the jury that the offenses that
    occurred in a motor vehicle (counts I and V) must have been
    “committed in this state.” Further, based on the record before
    us, there was no evidence presented that would indicate that
    the relevant incident occurring between Lee and R.W. in his
    car occurred in Iowa or a state other than Nebraska, leaving no
    basis for a jury to reach that conclusion. As such, we conclude
    that Lee was not prejudiced as to necessitate a reversal on
    these grounds.
    26
    Brief for appellant at 44.
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    4. Excessive Sentences
    [12] Lee next assigns that that the district court erred by
    imposing excessive sentences. When a trial court’s sentence
    is within the statutory guidelines, the sentence will be dis-
    turbed by an appellate court only when an abuse of discretion
    is shown.27
    On counts I and II, Lee was found guilty of first degree
    sexual assault of a child, which is a Class IB felony punish-
    able by a mandatory minimum of 20 years’ imprisonment and
    a maximum of life in prison.28 Lee was sentenced to 50 years’
    to life imprisonment on each count of this offense.
    On count III, Lee was found guilty of attempted first degree
    sexual assault of a child, which is a Class II felony punishable
    by 1 to 50 years’ imprisonment.29 Lee was sentenced to 20 to
    50 years’ imprisonment on this offense.
    On count IV, Lee was found guilty of third degree sexual
    assault of a child, which is a Class IIIA felony punishable by
    up to 3 years’ imprisonment and 18 months’ postrelease super-
    vision, a $10,000 fine, or both.30 Lee was sentenced to 2 to 3
    years’ imprisonment on this offense.
    Finally, on count V, Lee was found guilty of incest with a
    victim age 17 or under, which is a Class IIA felony punishable
    by 0 to 20 years’ imprisonment.31 Lee was sentenced to 10 to
    20 years’ imprisonment on this offense.
    Running consecutively, Lee’s sentences equate to an aggre-
    gate period of 100 years’ to life imprisonment, plus an addi-
    tional 32 to 73 years’ imprisonment.
    Lee does not contest that his sentences were within the stat-
    utory limitations. He solely argues that the district court abused
    27
    See State v. Huff, 
    282 Neb. 78
    , 
    802 N.W.2d 77
    (2011).
    28
    See Neb. Rev. Stat. §§ 28-319.01 and 28-105 (Reissue 2016).
    29
    See § 28-319.01, Neb. Rev. Stat. § 28-201(4)(a) (Reissue 2016), and
    § 28-105.
    30
    See Neb. Rev. Stat. §§ 28-320.01 (Reissue 2016) and 28-105.
    31
    See Neb. Rev. Stat. §§ 28-703 (Reissue 2016) and 28-105.
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    its discretion by imposing an unjustly lengthy total sentence as
    compared to other Nebraska cases where defendants were con-
    victed of similar crimes. Consequently, Lee’s sentences will be
    disturbed only upon a finding of abuse of discretion.
    [13,14] Abuse of discretion occurs when a trial court’s
    decision is based upon reasons that are untenable or unreason-
    able or if its action is clearly against justice or conscience,
    reason, and evidence.32 When imposing a sentence, a sentenc-
    ing judge should consider the defendant’s (1) age, (2) men-
    tality, (3) education and experience, (4) social and cultural
    background, (5) past criminal record or record of law-abiding
    conduct, and (6) motivation for the offense, as well as (7)
    the nature of the offense and (8) the violence involved in the
    commission of the crime.33 The appropriateness of a sentence
    is necessarily a subjective judgment and includes the sen-
    tencing judge’s observation of the defendant’s demeanor and
    attitude and all the facts and circumstances surrounding the
    defendant’s life.34
    There is no evidence in the record demonstrating that the
    sentencing court considered inappropriate or unreasonable fac-
    tors in forming Lee’s sentences. The district court reviewed
    the presentence investigation report, which revealed Lee had
    an extensive criminal history. The district court also consid-
    ered Lee’s age, mentality, education, experience, social and
    cultural background, and law-abiding conduct, as well as the
    motivations for these offenses, the nature of the offenses, and
    the presence or absence of violence, including sexual violence.
    Considering the totality of this information, the court deter-
    mined that Lee was a dangerous sexual predator and imposed
    his above-described sentences.
    We cannot conclude that the district court made its deci-
    sion based upon reasons that were untenable or unreasonable,
    32
    State v. Collins, 
    292 Neb. 602
    , 
    873 N.W.2d 657
    (2016).
    33
    State v. Huff, supra note 27.
    34
    State v. Custer, 
    292 Neb. 88
    , 
    871 N.W.2d 243
    (2015).
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    nor was the district court’s action clearly against justice or
    conscience, reason, and evidence. Therefore, we conclude that
    the sentencing court did not abuse its discretion and that Lee’s
    sentences are not excessive.
    5. Ineffective Assistance of Counsel
    Lastly, Lee asserts a number of claims of ineffective assist­
    ance of trial counsel. Specifically, he argues that (1) he over-
    heard his trial counsel talking with the prosecutor and indicat-
    ing she believed Lee was guilty, and that when he confronted
    her about it, she told him to “go back to his cell and taste his
    own semen and see what it tastes like”35; (2) his trial counsel
    did not review discovery with him; (3) his trial counsel told
    him that he could not call any other witnesses that he wished
    to call at trial; (4) his trial counsel failed to raise a Batson 36
    challenge, which he believes was appropriate because there
    was “not a single African American” in the venire 37; (5) he
    was prejudiced by his trial counsel’s deficient performance by
    failing to litigate Lee’s motion to sever charges; and (6) he was
    prejudiced by his trial counsel’s deficient performance by fail-
    ing to object to improper hearsay and opinion testimony from
    Cirian, the forensic interviewer.
    [15] Lee has new counsel on direct appeal. When a defend­
    ant’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.38 Once raised, the
    appellate court will determine whether the record on appeal
    is sufficient to review the merits of the ineffective perform­
    ance claims.39
    35
    Brief for appellant at 50.
    36
    Batson v. Kentucky, supra note 1.
    37
    Brief for appellant at 51.
    38
    State v. Chairez, supra note 7.
    39
    
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    In order to know whether the record is insufficient to
    address assertions on direct appeal that trial counsel was inef-
    fective, appellate counsel must assign and argue deficiency
    with enough particularity for (1) an appellate court to make
    a determination of whether the claim can be decided upon
    the trial record and (2) a district court later reviewing a peti-
    tion for postconviction relief to be able to recognize whether
    the claim was brought before the appellate court.40 When a
    claim of ineffective assistance of trial counsel is raised in a
    direct appeal, the appellant is not required to allege prejudice;
    however, an appellant must make specific allegations of the
    conduct that he or she claims constitutes deficient performance
    by trial counsel.41
    Lee and the State agree that the record is insufficient to
    address four of Lee’s assertions on direct appeal that trial
    counsel was ineffective, made under the heading “Defendant’s
    preservation of Post Conviction Relief issues.”42 In this regard,
    Lee asserts, first, that he overheard trial counsel telling the
    prosecutor she believed he was guilty and, when confronted
    about the conversation, told Lee to “go back to his cell and
    taste his own semen and see what it tastes like.” Second, Lee
    contends that trial counsel refused to allow him to review the
    entire discovery in the case, including the Project Harmony
    reports and the video-recorded forensic interview, which he
    asserts impeded his ability to assist in his defense and would
    have led Lee to insist that trial counsel call “adverse witnesses,
    including . . . Kelly who was purportedly present during an
    alleged assault.”43 Third, Lee argues that trial counsel told him
    he could not call any other witnesses in his defense, which
    prevented him from adducing the testimony of “adverse wit-
    nesses,” including Kelly. Fourth, Lee asserts trial counsel was
    40
    See State v. Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
    (2014).
    41
    See State v. Filholm, 
    287 Neb. 763
    , 
    848 N.W.2d 571
    (2014).
    42
    Brief for appellant at 50.
    43
    
    Id. at 51.
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    ineffective by failing to raise a Batson challenge to a jury
    consisting of “not a single African American” and by failing to
    preserve any Batson challenge by not having a record made of
    the lack of diversity of the venire.
    We find these assertions sufficient to preserve the alleged
    claims of deficiency, with one caveat. Appellate counsel
    must give on direct appeal the names or descriptions of any
    uncalled witnesses forming the basis of a claim of inef-
    fective assistance of trial counsel.44 Otherwise, a potential
    postconviction court would be unable to identify whether a
    claim based on the alleged failure to call a particular witness
    was preserved on direct appeal.45 Here, appellate counsel
    raised only the failure to call witness Kelly with sufficient
    specificity. Any other claim as to “adverse witnesses” has not
    been preserved.
    As we have held in countless cases where the record on
    direct appeal was insufficient for assessing ineffective assist­
    ance of counsel claims, the issue that often arises is that the
    trial record reviewed on appeal is “devoted to issues of guilt
    or innocence” and does not usually address issues of counsel’s
    performance.46 The same can be said in this case. The record on
    appeal is simply devoid of any evidence of the circumstances
    and facts regarding the four contentions of ineffective assist­
    ance of counsel that were adequately presented. Therefore, we
    decline to reach these claims on direct appeal based on the
    insufficiency of the record before us.
    However, we find that the record is sufficient to address on
    direct appeal Lee’s claims that his trial counsel was deficient
    by failing to (1) litigate Lee’s motion to sever charges and
    (2) object to improper hearsay and opinion testimony from
    Cirian. Where the record is sufficient to address the ineffec-
    tive assistance of counsel claim, an appellate court reviews
    44
    See State v. Abdullah, supra note 40.
    45
    See 
    id. 46 Id.
    at 
    128, 853 N.W.2d at 864
    .
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    the factual findings of the lower court for clear error.47 But
    with regard to the questions of counsel’s performance or
    prejudice to the defendant as part of the two-pronged test
    articulated in Strickland v. Washington,48 an appellate court
    reviews such legal determinations independently of the lower
    court’s decision.49
    [16-18] To prevail on a claim of ineffective assistance of
    counsel under Strickland, the defendant must show that his or
    her counsel’s performance was deficient and that this deficient
    performance actually prejudiced the defendant’s defense.50 To
    show deficient performance, a defendant must show that coun-
    sel’s performance did not equal that of a lawyer with ordinary
    training and skill in criminal law.51 To show prejudice, the
    defendant must demonstrate a reasonable probability that but
    for counsel’s deficient performance, the result of the proceed-
    ing would have been different.52
    (a) Motion to Sever
    [19] Lee contends that the charges involving R.W. should
    have been severed from the charges involving M.B., so his
    trial counsel should have pursued their motion to sever and
    was ineffective in failing to do so. However, based on the
    record before us, trial counsel did in fact “litigate” and “pur-
    sue” Lee’s motion to sever. Lee’s trial counsel filed a four-page
    motion detailing the requested severances. At the beginning of
    a pretrial hearing on March 15, 2018, trial counsel stated that
    she wished to withdraw the motion, but then she argued the
    motion toward the end of these pretrial hearings. Trial counsel
    47
    State v. Chairez, supra note 7.
    48
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
         (1984).
    49
    State v. Filholm, supra note 41.
    50
    
    Id. 51 State
    v. Chairez, supra note 7.
    52
    
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    maintained that a severance was warranted and laid out the
    requested severances. The district court subsequently denied
    severance via a written order. Thus, this motion to sever was in
    fact argued and ruled upon. Trial counsel cannot be ineffective
    for failing to do that which the record affirmatively establishes
    was done.
    (b) Failure to Object to
    Cirian’s Testimony
    [20] Regarding counsel’s failure to object to Cirian’s tes-
    timony on hearsay grounds, Lee argues that his trial coun-
    sel should have objected to Cirian’s testimony about what
    actions were required to be taken or what protocols were trig-
    gered in response to R.W.’s and M.B.’s disclosures, because
    this was inadmissible “derivative hearsay.”53 Lee cites no
    authority to support this “derivative hearsay” argument, nor
    are we aware of any precedent or authority that indicates
    such evidence constitutes inadmissible “derivative hearsay.”
    To the contrary, the law generally provides that statements
    are not hearsay if they are offered to show the effect on
    the listener.54
    Cirian’s testimony regarding the requisite protocols when
    certain disclosures by the interviewed children are made was
    nothing more than her description of the steps she was required
    to take during the girls’ interview process. Cirian testified only
    as to her actions as a result of the disclosures made to her dur-
    ing these interviews. We find that Cirian’s testimony regarding
    the actions that were required to be taken and the protocols
    that were triggered in response to the girls’ disclosures was not
    hearsay. As such, as a matter of law, Lee’s trial counsel was not
    deficient for failing to object to Cirian’s testimony as “deriva-
    tive hearsay.”
    53
    See brief for appellant at 39.
    54
    See, State v. Poe, 
    292 Neb. 60
    , 
    870 N.W.2d 779
    (2015); State v. McCave,
    
    282 Neb. 500
    , 
    805 N.W.2d 290
    (2011).
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    Lee also argues that trial counsel was ineffective for fail-
    ing to object to Cirian’s allegedly improper opinion testimony
    when Cirian testified that the demeanor of R.W. and M.B.
    was consistent with the demeanor of a victim of sexual abuse.
    Lee argues that this testimony amounted to improper vouch-
    ing for the credibility of the victims and was an improper
    opinion.
    The record reflects that when the State initially questioned
    Cirian regarding the girls’ demeanor and its consistency with
    children alleging sexual abuse, Lee’s trial counsel objected
    to the testimony on the basis of relevance. Such an objection
    necessarily encompassed the propriety of Cirian’s opinion.55
    Lee’s trial counsel was not ineffective for failing to object
    to Cirian’s conclusion, because the record demonstrates that
    such an objection was made. Moreover, we conclude that
    Cirian did not opine as to the reliability or the credibility of
    the girls’ statements or allegations made during their respec-
    tive interviews.
    VI. CONCLUSION
    For the reasons set forth above, we affirm the decision of the
    district court.
    A ffirmed.
    55
    See State v. Merchant, 
    285 Neb. 456
    , 
    827 N.W.2d 473
    (2013). See, also,
    In re Interest of Kyle O., 
    14 Neb. Ct. App. 61
    , 
    703 N.W.2d 909
    (2005).
    Cassel, J., concurring.
    I write separately only to remind the practicing bar that
    assignments of error on direct appeal regarding ineffective
    assistance of trial counsel must specifically allege deficient
    performance and that an appellate court will not scour the
    remainder of the brief in search of such specificity.1 Our deci-
    sion making this rule explicit was released on April 19, 2019.
    1
    See State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
    (2019).
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    In the appeal before us, Lee’s sole assignment of error relat-
    ing to ineffective assistance stated only, “Defendant’s preser-
    vation of Post Conviction Relief issues.” But for having been
    filed on December 21, 2018, it clearly would have failed the
    specificity requirement. Although we have declined to apply
    the specificity requirement retroactively,2 that time is already
    gone for briefs being filed now. Counsel should understand that
    briefs filed after April 19, 2019, which fail to comply may have
    consequences beyond loss of such claims.3
    2
    See State v. Blaha, 
    303 Neb. 415
    , 
    929 N.W.2d 494
    (2019).
    3
    See Neb. Ct. R. of Prof. Cond. § 3‑501.1 (rev. 2017).