State v. Lierman ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/17/2020 09:07 AM CDT
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. LIERMAN
    Cite as 
    305 Neb. 289
    State of Nebraska, appellee, v.
    Darryl Lierman, appellant.
    ___ N.W.2d ___
    Filed March 20, 2020.    No. S-18-402.
    1. 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.
    2. 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.
    3. Criminal Law: Judgments: Proof. An acquittal in a criminal case does
    not preclude the government from relitigating an issue when it is pre-
    sented in a subsequent action governed by a lower standard of proof.
    4. Criminal Law: Proof. The standard of proof in a criminal case is that
    the State must prove the charges against the defendant beyond a reason-
    able doubt.
    5. Sexual Assault: Evidence. Evidence that a defendant committed an act
    of sexual assault is, by its very nature, prejudicial.
    6. Convictions: Evidence: Appeal and Error. In reviewing a criminal
    conviction for a sufficiency of the evidence claim, whether the evidence
    is direct, circumstantial, or a combination thereof, the standard is the
    same: An appellate court does not resolve conflicts in the evidence, pass
    on the credibility of the witnesses, or reweigh the evidence; such matters
    are for the finder of fact. The relevant question for an appellate court is
    whether, after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential ele-
    ments of the crime beyond a reasonable doubt.
    7. Judges: Recusal. A recusal motion is initially addressed to the discre-
    tion of the judge to whom the motion is directed.
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    8. Trial: Judges: Words and Phrases. An ex parte communication occurs
    when a judge communicates with any person concerning a pending or
    impending proceeding without notice to an adverse party.
    9. Trial: Judges: Recusal. A judge who initiates or invites and receives
    an ex parte communication concerning a pending or impending proceed-
    ing must recuse himself or herself from the proceedings when a litigant
    requests such recusal.
    10. Judges: Recusal. A judge should recuse himself or herself when a liti-
    gant demonstrates that a reasonable person who knew the circumstances
    of the case would question the judge’s impartiality under an objective
    standard of reasonableness, even though no actual bias or prejudice
    was shown.
    11. Judges: Recusal: Presumptions. A party alleging that a judge acted
    with bias or prejudice bears a heavy burden of overcoming the presump-
    tion of judicial impartiality.
    12. 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.
    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. Statutes: Appeal and Error. Statutory interpretation is a question of
    law, which an appellate court resolves independently of the trial court.
    15. 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.
    16. ____: ____. 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.
    17. Effectiveness of Counsel: Postconviction: Records: Appeal and
    Error. In order to know whether the record is insufficient to address
    assertions on direct appeal that trial counsel was ineffective, appellate
    counsel must assign and argue deficiency with enough particularity (1)
    for an appellate court to make a determination of whether the claim can
    be decided upon the trial record and (2) for a district court later review-
    ing a petition for postconviction relief to be able to recognize whether
    the claim was brought before the appellate court.
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    STATE v. LIERMAN
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    305 Neb. 289
    18. Effectiveness of Counsel: Proof: Appeal and Error. 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.
    Appeal from the District Court for Antelope County: Mark
    A. Johnson, Judge. Affirmed.
    Bradley A. Ewalt, of Ewalt Law Office, P.C., L.L.O., for
    appellant.
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Heavican, C.J.
    I. INTRODUCTION
    Darryl Lierman was convicted of multiple counts of sexual
    assault of a child and child abuse and was sentenced to a total
    term of 70 to 140 years’ imprisonment, with credit for 272
    days’ time served. The child in question was B.L., Lierman’s
    adopted daughter, who was born in January 2000. Lierman’s
    primary argument on appeal is that the district court erred in
    admitting evidence of prior sexual assault alleged to have been
    committed by Lierman against another adopted daughter, A.L.,
    because Lierman was acquitted in that case. We affirm.
    II. BACKGROUND
    Lierman was charged by information with three counts of
    first degree sexual assault of a child, three counts of third
    degree sexual assault of a child, and four counts of child abuse.
    Though further details of these charges will be discussed in
    more detail below, it is sufficient to note here that B.L. alleged
    this sexual abuse began in approximately 2010. At that time,
    Lierman was on bond awaiting trial on charges that he sexu-
    ally abused B.L.’s biological sister, A.L., who was another of
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    STATE v. LIERMAN
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    Lierman’s adopted daughters. Lierman was eventually acquit-
    ted by a jury of the charges involving A.L.
    B.L.’s allegations first came to light on or about February
    12, 2015. On February 7, B.L. ingested an unknown number
    of pills in an attempted suicide and was taken to a hospital in
    Kearney, Nebraska. During a counseling session on February
    12, B.L. made statements suggesting that Lierman had been
    sexually abusing her. An interview at a child advocacy center
    was scheduled, at which time B.L. made further allegations
    against Lierman, including that he would make her model
    bras for him and that he would watch her while she was
    showering. B.L. was placed in foster care while the matter
    was investigated.
    In July 2015, B.L. disclosed that from the ages of 12 to 14,
    she was subject to digital and penile penetration by Lierman
    on more than one occasion, primarily while at the family’s
    home in Neligh, Nebraska. Lierman was ultimately charged
    with the allegations set forth above. Various pretrial hearings
    were held, details of which will be noted below as relevant.
    After a jury trial, Lierman was found guilty of all charges.
    He appeals.
    III. ASSIGNMENTS OF ERROR
    On appeal, Lierman assigns that the district court erred
    in (1) allowing the State to present evidence of prior sexual
    assaults, where that evidence was in support of charges of
    sexual assault for which Lierman was ultimately acquitted,
    or where at least some of those assaults were alleged to have
    been committed by Lierman in other jurisdictions; (2) not
    admitting evidence that prior to her suicide attempt, B.L. was
    unhappy at home and at school and was using the home com-
    puter to access adult dating sites; (3) finding the evidence suf-
    ficient to convict Lierman; (4) not recusing itself; (5) imposing
    excessive sentences; and (6) not permitting Lierman to issue
    subpoenas duces tecum in order to obtain records through
    depositions. Lierman additionally assigns that his counsel was
    ineffective by not (1) calling certain witnesses, (2) utilizing
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    STATE v. LIERMAN
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    305 Neb. 289
    evidence of Lierman’s driving logs to form an alibi defense,
    (3) filing a motion in limine regarding the evidence to be
    sought about B.L.’s difficulties at school and general unhappi-
    ness, (4) objecting to the order in which the State presented its
    evidence, and (5) objecting to the State’s use of B.L.’s suicide
    attempts and ideations.
    IV. ANALYSIS
    1. Admissibility of Evidence
    (a) Standard of Review
    [1,2] 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. 1 Where the Nebraska Evidence Rules commit the evi-
    dentiary question at issue to the discretion of the trial court,
    an appellate court reviews the admissibility of evidence for an
    abuse of discretion. 2
    (b) Background
    Prior to trial, the State filed a motion for a hearing to deter-
    mine the admissibility of prior sexual assault evidence and an
    intent to offer additional evidence pursuant to Neb. Rev. Stat.
    §§ 27-404 and 27-414 (Reissue 2016). The State averred that
    it wished to use evidence that had previously been presented
    against Lierman in the case involving A.L.’s allegations.
    At this hearing, the State introduced evidence gener-
    ally comprising three categories: (1) evidence that had been
    offered against Lierman during A.L.’s trial in Antelope County,
    Nebraska, for which Lierman was acquitted; (2) evidence that
    was not offered in Antelope County either for reasons not clear
    from the record or because the events in question did not occur
    in Antelope County, but instead in Madison County, Nebraska,
    1
    State v. Valverde, 
    286 Neb. 280
    , 
    835 N.W.2d 732
    (2013).
    2
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    STATE v. LIERMAN
    Cite as 
    305 Neb. 289
    or while Lierman was on the road with A.L; and (3) evidence
    of allegations by B.L. that did not occur in Antelope County,
    but instead in Madison County, or while Lierman was on the
    road with B.L.
    A.L. testified that Lierman began sexually abusing her when
    she was approximately 10 years old, when the family lived in
    both Neligh and Tilden, Nebraska. A.L. testified that Lierman
    had, for the 2 or 3 years prior, sought “hip rubs” from A.L.
    and asked her to walk on his back. (There was testimony at
    trial that “hip rubs” and the children’s walking on Lierman’s
    back were a common occurrence for all of the children in the
    household and were apparently performed to relieve pain that
    Lierman suffered as a result of his over-the-road trucking job.
    The record shows that Lierman was obese, weighing approxi-
    mately 500 pounds.)
    The first sexual abuse occurred when A.L. was sleeping with
    Lierman and Lierman’s wife, Julie Lierman (the mother of the
    adopted children), in the couple’s bed. Early in the morning
    of this first occasion, A.L. was giving Lierman a hip rub and
    accidently rubbed his penis over his clothing. A.L. was told
    to stop and was sent to her own bed. But the next night, A.L.
    was again sleeping with Lierman and Julie in their bed, when
    Lierman told her to “do what [you] did last night.” At first
    A.L. thought Lierman meant a hip rub, but subsequently began
    rubbing his penis over his clothes, and Lierman did not tell her
    to stop.
    Lierman eventually introduced A.L. to the “cowlick,” which
    involved Lierman’s licking A.L.’s vagina. A.L. testified that
    at the time, she and Lierman were watching television in the
    couple’s bedroom and Julie was not at home. The “cowlick”
    began after the family moved to Tilden.
    A.L. also testified that Lierman began taking her on his
    multiday trucking routes and would engage in sexual activ-
    ity with her in the sleeper portion of the semi-truck. On one
    such occasion in the truck, A.L. and Lierman were watching a
    movie and Lierman told A.L. to rub his penis, which A.L. did
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    STATE v. LIERMAN
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    305 Neb. 289
    over his clothing. Lierman then directed her to rub his penis
    under his clothing. In a second incident, A.L. was walking on
    Lierman’s back, when he rolled over and she accidentally hit
    his groin area, causing him pain. He then grabbed her, took
    off her pajamas, got on top of her, and penetrated her vagina
    with his penis. A.L. cried out that it hurt and screamed at him
    to stop, but Lierman placed a pillow over her head to muffle
    the screams. A.L. further testified that almost every time she
    went with Lierman in the truck, some type of sexual activity
    occurred, and that she was often asked to model underwear that
    he had brought along.
    A.L. testified that after the family moved from Tilden to
    Neligh, she shared a room with another sister. The house was
    being remodeled, so Lierman and Julie’s bed was in the living
    room, and as a result, no sexual abuse took place during that
    time. But as soon as the remodel was finished, the sexual abuse
    resumed. The abuse usually began with a request that A.L. give
    Lierman a hip rub or back rub, and it occurred most evenings
    when Lierman was not on the road. A.L. also testified that she
    performed oral sex on Lierman and that Lierman used a purple
    sex toy on her on at least two occasions.
    A.L. disclosed some of these events to Neligh school author-
    ities on September 17, 2010, after speaking with the counselor
    about her concern that Lierman may have impregnated her. A
    search of the family’s home revealed bedding and a purple sex
    toy. DNA that included Lierman and A.L., but excluded Julie,
    was found on both items. (The DNA evidence was apparently
    either not available or not offered at the time of Lierman’s trial
    on A.L.’s allegations.)
    Evidence of non-Antelope County incidents involving B.L.
    and Lierman was also offered. B.L.’s therapist testified that
    B.L. revealed to her that Lierman began sexually abusing her
    when she was approximately 10 years old, when the family
    lived in Meadow Grove, Nebraska, and while Lierman was
    out on bond for the charges he faced involving A.L. Similar to
    A.L., the abuse began with Lierman’s asking B.L. to massage
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    STATE v. LIERMAN
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    his penis. B.L. reported that Lierman assaulted her while she
    was with him on the road and that Lierman was “‘not right
    down there,’” meaning something was wrong with his penis.
    B.L. also reported that Lierman penetrated her with his penis
    and that it hurt.
    Following this hearing, the court found that (1) the State was
    not barred by principles of collateral estoppel from introducing
    evidence regarding A.L., despite the fact that Lierman had been
    acquitted of those charges; (2) A.L.’s allegations were inextri-
    cably intertwined with B.L.’s allegations; and (3) the evidence
    the State sought to admit as to both A.L. and B.L. was con-
    ditionally admissible under §§ 27-404 and 27-414, subject to
    confirmation of factual similarities deemed relevant at trial.
    (c) Analysis
    In his first assignment of error, Lierman assigns that the
    district court erred in admitting A.L.’s allegations, because he
    was acquitted of those charges at trial. He contends that the
    principles of collateral estoppel prevent the State from offering
    evidence about charges for which he was acquitted. Lierman
    also asserts that by offering evidence regarding A.L.’s allega-
    tions, the State was attempting to convince the jury that he
    should have been found guilty in A.L.’s case and that it had an
    opportunity to correct that wrong.
    We turn first to Lierman’s assertion that the U.S. Supreme
    Court’s decision in Ashe v. Swenson 3 precludes the admission
    of that evidence. In Ashe, the Court explained that in the con-
    text of collateral estoppel, “when an issue of ultimate fact has
    once been determined by a valid and final judgment, that issue
    cannot again be litigated between the same parties in any future
    lawsuit.” 4
    [3] We find Lierman’s assertion to be without merit. While
    Ashe does speak to the issue of collateral estoppel in the
    criminal case, the Court expanded on that holding in Dowling
    3
    Ashe v. Swenson, 
    397 U.S. 436
    , 
    90 S. Ct. 1189
    , 
    25 L. Ed. 2d 469
    (1970).
    4
    Id., 397 U.S.
    at 443.
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    v. United States. 5 In Dowling, the Court noted that “an acquit-
    tal in a criminal case does not preclude the Government from
    relitigating an issue when it is presented in a subsequent action
    governed by a lower standard of proof.” 6
    Section 27-414 provides:
    (1) In a criminal case in which the accused is accused
    of an offense of sexual assault, evidence of the accused’s
    commission of another offense or offenses of sexual
    assault is admissible if there is clear and convinc-
    ing evidence otherwise admissible under the Nebraska
    Evidence Rules that the accused committed the other
    offense or offenses. If admissible, such evidence may
    be considered for its bearing on any matter to which it
    is relevant.
    (2) In a case in which the prosecution intends to offer
    evidence under this section, the prosecuting attorney shall
    disclose the evidence to the accused, including statements
    of witnesses or a summary of the substance of any testi-
    mony that is expected to be offered, at least fifteen days
    before the scheduled date of trial or at such later time as
    the court may allow for good cause.
    (3) Before admitting evidence of the accused’s com-
    mission of another offense or offenses of sexual assault
    under this section, the court shall conduct a hearing out-
    side the presence of any jury. 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 outweighs 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.
    5
    Dowling v. United States, 
    493 U.S. 342
    , 
    110 S. Ct. 668
    , 
    107 L. Ed. 2d 708
        (1990).
    6
    Id., 493 U.S.
    at 349.
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    STATE v. LIERMAN
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    (4) This section shall not be construed to limit the
    admission or consideration of evidence under any other
    section of the Nebraska Evidence Rules.
    Thus, under § 27-414, assuming that notice and hear-
    ing requirements are met and the evidence survives a more-
    probative-than-prejudicial balancing test, evidence of prior
    sexual assaults are admissible if proved by clear and convinc-
    ing evidence.
    [4] The standard of proof in a criminal case is that the State
    must prove the charges against the defendant beyond a reason-
    able doubt, 7 a higher standard of proof. 8 Because the standard
    set forth as to the question of whether A.L.’s allegations were
    proved for purposes of § 27-414 is lower than the standard of
    proof the State was held to in prosecuting those allegations,
    the principles of collateral estoppel do not bar the admission
    of that evidence.
    And we disagree with Lierman’s contention that the State
    did not prove A.L.’s allegations by clear and convincing evi-
    dence. A.L. testified to the truth of her allegations, and her
    testimony was at least partially corroborated by DNA test-
    ing and other physical evidence. Lierman attempted to attack
    A.L.’s credibility by pointing out inconsistencies and failed
    memory, but as the State noted, those inconsistencies are typi-
    cal of a young adult remembering traumatic events that took
    place years ago.
    While the fact that Lierman was acquitted does not affect
    the threshold admissibility of the evidence under § 27-414,
    it is relevant to the undue prejudice analysis conducted under
    § 27-414 and Neb. Rev. Stat. § 27-403 (Reissue 2016). We
    held in State v. Kirksey, 9 a case involving § 27-404, that a
    prior acquittal
    7
    See, U.S. Const. amend. XIV; In re Winship, 
    397 U.S. 358
    , 
    90 S. Ct. 1068
    ,
    
    25 L. Ed. 2d 368
    (1970).
    8
    See, e.g., State v. Bigelow, 
    303 Neb. 729
    , 
    931 N.W.2d 842
    (2019).
    9
    State v. Kirksey, 
    254 Neb. 162
    , 180, 
    575 N.W.2d 377
    , 390-91 (1998).
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    does not, in and of itself, preclude admission of the facts
    underlying the charge as evidence of other bad acts when
    offered for one of the purposes specified in [§ 27-404(2)].
    . . . However, the acquittal is a factor which the court
    must consider when weighing the probative value of the
    evidence against the potential for unfair prejudice under
    [§ 27-403].
    [5] We turn to the balancing test set forth in §§ 27-414 and
    27-403. We first note that evidence that a defendant commit-
    ted an act of sexual assault is, by its very nature, prejudicial 10:
    The [§ 27-403] unfairly prejudicial analysis cannot be
    based on the fact that evidence of sexual misconduct pro-
    pensity evidence would be prejudicial. . . . Of course, the
    more probative the evidence is in establishing a similar
    deviant sexual propensity the more prejudicial the evi-
    dence becomes, but such prejudice is not unfair under
    [§ 27-403] because of its enhanced probative value. 11
    Despite the prejudice inherent in this type of evidence, the
    Legislature enacted § 27-414. Assuming that the evidence met
    the balancing test of § 27-414, the Legislature set no limitation
    on a fact finder’s use of this evidence. This stands in contrast
    to § 27-404, where other types of character or bad acts evi-
    dence are presumed to be inadmissible, and where admissible
    for one or more of the particular purposes as set forth by the
    statute, the evidence may be considered only for those pur-
    poses. Thus, while § 27-404 is a rule of exclusion, § 27-414 is
    a rule of admissibility.
    It is with an understanding of the prejudicial nature of such
    evidence, and the wide range of purpose for which the fact
    finder may consider it, that we weigh the various factors of the
    balancing test set forth in § 27-414.
    The district court found, and we agree, that there was clear
    and convincing evidence that the events composing A.L.’s
    10
    See State v. Kibbee, 
    284 Neb. 72
    , 
    815 N.W.2d 872
    (2012).
    11
    3 R. Collin Mangrum, Mangrum on Nebraska Evidence § 27-414[D](5) at
    334 (2019).
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    allegations occurred. In addition, we have previously noted
    that evidence of the repeated nature of sexual assault incidents
    may be relevant in proving these crimes occurred, especially
    when committed against “‘“persons otherwise defenseless
    due to age.”’” 12 This is applicable in this situation, given
    the young age of B.L. (as well as A.L.) at the time of the
    alleged assaults.
    In addition, the events described in A.L.’s allegations were
    close in time to the charges involving B.L. for which Lierman
    was on trial. According to A.L., Lierman sexually assaulted her
    until the time of his arrest, while B.L. testified that Lierman
    began assaulting her when he was on bond awaiting trial on
    A.L.’s allegations.
    A.L.’s allegations were similar to the allegations made by
    B.L. The girls were similar in age when the assaults began,
    were sisters, and were both adopted daughters to Lierman.
    Both girls reported that the sexual acts grew out of “hip rubs”
    that they each gave Lierman, which led to fondling outside of
    clothing, and then eventually, penile penetration. Both girls
    reported incidents occurring in Lierman’s bedroom and in his
    semi-truck while on the road.
    Of course, as Lierman points out, he was acquitted by a jury
    of A.L.’s allegations, which we consider in this balancing test.
    Lierman argues that the State offered A.L.’s allegations in part
    to argue to the jury in B.L.’s case that the jury in the first case
    made a mistake, while this second jury could rectify it. But
    we are not persuaded by this: the jury was clearly instructed
    that “[t]he defendant [was] on trial only for the crimes alleged
    herein,” and that fact was pointed out to the jury by both the
    State and Lierman’s counsel.
    Nor is there any distinction between the allegations for
    which Lierman was convicted and those for which he was
    never charged. Other than arguing the State could have charged
    him earlier, Lierman does not explain how this fact would
    12
    See State v. Kibbee, supra note 
    10, 284 Neb. at 95
    , 815 N.W.2d at 891,
    quoting State v. Stephens, 
    237 Neb. 551
    , 
    466 N.W.2d 781
    (1991).
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    prevent the use of the allegations per § 27-414. That statute
    allows conduct to be admitted, not convictions.
    There is no merit to Lierman’s first assignment of error.
    2. Evidence of Alternative Reasons
    for B.L.’s Unhappiness
    (a) Standard of Review
    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. 13
    Where the Nebraska Evidence Rules commit the evidentiary
    question at issue to the discretion of the trial court, an appel-
    late court reviews the admissibility of evidence for an abuse of
    discretion. 14
    (b) Background
    In his second assignment of error, Lierman argues that
    during the State’s examination of B.L., it opened the door to
    the introduction of specific evidence that when considered
    together, showed that B.L. was not happy and that it was this
    unhappiness, and not any alleged sexual abuse, that resulted in
    B.L.’s attempted suicide. At issue was evidence that B.L. was
    (1) caught using the computer to access an adult dating web-
    site, (2) using social media to arrange a meeting with a boy
    her age, (3) using a tablet computer to access adult-oriented
    websites on dates when Lierman claims he was out of town,
    and (4) being bullied at school.
    The district court sustained the State’s objection to Lierman’s
    attempts to present evidence of these instances.
    (i) Use of Adult Dating Website
    An offer of proof was made wherein Julie would have testi-
    fied that sometime in 2013, she was on the family computer
    13
    State v. Kibbee, supra note 10.
    14
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    and noticed that B.L. had left her email account open. Julie
    discovered that B.L. had been creating a profile on a dating
    website. In response, Lierman and Julie summoned the county
    sheriff to explain to B.L. the dangers of this type of activity.
    Lierman also wanted to offer a portion of B.L.’s deposition in
    which she testified that she had not had contact with anyone
    on the website, but that she had only created a profile using
    false information. In her deposition testimony, B.L. testified
    that Lierman sexually assaulted her after Julie went to work the
    night that B.L.’s actions were discovered. In support of admit-
    ting this evidence, Lierman argued it was part of the res gestae
    of the crimes charged, because B.L. claimed that it led directly
    to another sexual assault.
    The district court declined to admit this evidence, finding
    the implication was that B.L. had engaged in some type of
    sexual misconduct, violating Neb. Rev. Stat. § 27-412 (Reissue
    2016). In addition, the court sustained the State’s objection
    that Lierman’s cross-examination of B.L. on this point was
    improper under § 27-403 and Neb. Rev. Stat. § 27-608(2)
    (Reissue 2016).
    (ii) Social Media Message About
    Meeting With Classmates
    A second offer of proof would have had Julie testify that
    one night when she was on the computer, an instant mes-
    sage for B.L. appeared. The message indicated that B.L. was
    attempting to arrange to meet classmates, including a particu-
    lar boy, after school to go to another location and that this was
    a violation of the rules of the Lierman household. The district
    court refused to admit this evidence as well, again on the basis
    of §§ 27-412 and 27-608(2).
    (iii) Websites Accessed on Tablet Computer
    A third offer of proof involved a tablet computer used by
    B.L. Law enforcement examined the tablet and determined
    that it was used on several occasions to access pornographic
    websites. The offer of proof also established that there was
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    no way to know who had accessed the websites, but Lierman
    argued that his trucking logs would have established that it
    was not him. The district court found that this evidence was
    not relevant, because it could not be established that B.L. was
    the person who accessed the websites, and that in any case, the
    evidence was inadmissible under § 27-412.
    (iv) Unhappiness at Home and School
    In a final offer of proof, Lierman asserted that if admitted,
    testimony from family members would show that B.L. was
    being bullied at school. In addition, this testimony would show
    that B.L. was unhappy at home because, as the prior incidents
    indicated, she had trouble following the rules of the household.
    The district court found that the matter of B.L.’s not liking or
    following the rules of the household to be irrelevant and in vio-
    lation of § 27-608(2). As for the bullying at school, the district
    court concluded it was not relevant, because B.L. had changed
    schools by the time of the suicide attempt.
    (c) Analysis
    Lierman’s argument on appeal with respect to these various
    pieces of evidence is that the State opened the door to B.L.’s
    credibility and that he was then permitted to cross-examine her
    with respect to these incidents. “Opening the door” is a rule of
    expanded relevancy which authorizes admitting evidence that
    would otherwise be irrelevant in order to respond to (1) admis-
    sible evidence which generates an issue or (2) inadmissible
    evidence admitted by the court over objection. 15
    Lierman contends that the State opened the door to B.L.’s
    truthfulness in the following exchange between the State’s
    attorney and B.L.:
    Q. Another thing, during the — those times you
    described and generally, those things you described with
    . . . Lierman and you, did . . . Lierman always call you by
    his own name — by your own name, rather?
    A. No.
    15
    State v. Harrold, 
    256 Neb. 829
    , 
    593 N.W.2d 299
    (1999).
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    Q. Explain, please.
    A. Yeah. Well, I have nicknames, I mean, like Nanna
    and stuff.
    Q. Speak up.
    A. Like Nanna. But when he got mad at me or I did
    something like lie about doing the dishes and I didn’t do
    them, he would call me . . .
    Q. What I’m talking about is . . . during the times sex
    things were going on, was there another name used?
    Lierman additionally argues that the State opened the door
    by offering into evidence exhibit 201, which he identified as a
    letter written to Lierman from B.L., detailing B.L.’s unhappi-
    ness and the bullying she was facing at school.
    In fact, exhibit 201 is a photograph of a piece of lined note-
    book paper that repeats the sentence, “I will respeck [sic] my
    mom and dad.” This exhibit was initially offered, but the State
    acknowledged that it was done so in error and it was with-
    drawn, though it had been published to the jury. (The letter was
    not sent back with the jury during its deliberations.) The letter
    from B.L. to Lierman was actually exhibit 246, and it was
    offered into evidence. With the exception of the salutation and
    the signature, which B.L. said did not look like her handwrit-
    ing, B.L. agreed that she wrote the letter.
    Lierman argues only about the letter from B.L. to Lierman,
    not about the “respeck” lines. But the record shows that this
    letter was offered and admitted and that B.L. was questioned
    about it. As for the other incident—the questioning about B.L.’s
    lying about doing the dishes—such did not “open the door” to
    questions about B.L.’s credibility. B.L.’s answer appears to
    be born of not understanding the question asked of her, and
    the State immediately redirected her testimony. Moreover, the
    specific instances of B.L.’s misbehavior were not relevant to
    B.L.’s truthfulness, because as the district court noted, those
    instances are excludable as specific instances of misconduct, or
    at worst, attempting to impugn B.L. by implying that she was
    involved in risky sexualized behavior.
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    Because the State did not open the door to the evidence
    which Lierman argues is admissible, there is no merit to
    Lierman’s second assignment of error.
    3. Sufficiency of Evidence
    (a) Standard of Review
    [6] In reviewing a criminal conviction for a sufficiency of
    the evidence claim, whether the evidence is direct, circum-
    stantial, or a combination thereof, the standard is the same: An
    appellate court does not resolve conflicts in the evidence, pass
    on the credibility of the witnesses, or reweigh the evidence;
    such matters are for the finder of fact. The relevant question
    for an appellate court is whether, after viewing the evidence in
    the light most favorable to the prosecution, any rational trier
    of fact could have found the essential elements of the crime
    beyond a reasonable doubt. 16
    (b) Analysis
    In his third assignment of error, Lierman assigns that the dis-
    trict court erred in finding that the evidence was sufficient to
    convict him. Lierman argues that without the evidence pertain-
    ing to the allegations made by B.L., “it is highly unlikely that
    [Lierman] would have been convicted. The evidence pertaining
    to the allegations made by B.L. was very weak with no real
    physical evidence present and frequently changing allegations
    by B.L. during the course of the case.” 17 In addition, Lierman
    asserts that “[t]here [was] no specificity in [B.L.’s] responses”
    as to the dates of the alleged offenses and that such was neces-
    sary because the only distinction between many of the offenses
    was B.L.’s age at the relevant time. 18
    We find that the evidence was sufficient to support Lierman’s
    convictions. B.L. testified that she was sexually assaulted by
    Lierman during the relevant time periods. This court does not
    16
    State v. Thomas, 
    303 Neb. 964
    , 
    932 N.W.2d 713
    (2019).
    17
    Brief for appellant at 44.
    18
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    reweigh that evidence. Lierman’s assignment of error to the
    contrary is without merit.
    4. Recusal
    (a) Standard of Review
    [7] A recusal motion is initially addressed to the discretion
    of the judge to whom the motion is directed. 19
    (b) Analysis
    In his fourth assignment of error, Lierman contends that
    the district court erred in not recusing itself because of an ex
    parte communication with the State and because it presided at
    a hearing regarding a grant of immunity given to Julie without
    giving Lierman notice.
    [8-11] An ex parte communication occurs when a judge
    communicates with any person concerning a pending or
    impending proceeding without notice to an adverse party. 20 A
    judge who initiates or invites and receives an ex parte com-
    munication concerning a pending or impending proceeding
    must recuse himself or herself from the proceedings when a
    litigant requests such recusal. 21 A judge should recuse him-
    self or herself when a litigant demonstrates that a reasonable
    person who knew the circumstances of the case would ques-
    tion the judge’s impartiality under an objective standard of
    reasonableness, even though no actual bias or prejudice was
    shown. 22 A party alleging that a judge acted with bias or preju-
    dice bears a heavy burden of overcoming the presumption of
    judicial impartiality. 23
    The first motion to recuse, filed on January 29, 2016, details
    events from earlier that same day. It appears there was an issue
    
    19 Thompson v
    . Millard Pub. Sch. Dist. No. 17, 
    302 Neb. 70
    , 
    921 N.W.2d 589
         (2019).
    20
    State v. Thompson, 
    301 Neb. 472
    , 
    919 N.W.2d 122
    (2018).
    21
    Id. 22 Thompson
    v. Millard Pub. Sch. Dist. No. 17, supra note 19.
    23
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    surrounding the taking of B.L.’s deposition. One of the State’s
    attorneys went to the district court’s courtroom while the
    judge was on the bench regarding matters in unrelated cases.
    At the conclusion of those matters, but before the court had
    adjourned, the State’s attorney indicated that the parties were
    having an issue with the deposition and sought a hearing. The
    district court then asked his staff to contact defense counsel to
    see whether a hearing could be set for later that day. Defense
    counsel refused to do so based on just the State’s oral motion,
    then filed the recusal motion.
    A hearing was held on this motion on February 1, 2016. At
    the hearing, the court declined to hear evidence, but instead
    explained the facts, as set forth above, and denied the motion.
    During the hearing, Lierman made an oral motion to recuse,
    which the court requested be filed as a written motion.
    A second hearing on the motions to recuse was held on
    February 5, 2016. The operative motion at that hearing was the
    amended second motion to recuse, which sought the district
    court’s recusal because the court had failed to give notice to
    Lierman that his wife, Julie, was being offered immunity for
    her testimony. Following that hearing, the district court denied
    the motion to recuse, reasoning that Lierman was not entitled
    to notice of any grant of immunity to Julie.
    We turn first to the issue of B.L.’s deposition. The record
    indicates that the State, not the court, initiated the conversation
    and that the conversation pertained to scheduling a hearing.
    The court’s response was to have defense counsel contacted
    about the issue. This is not an improper ex parte communica-
    tion that would give rise to a need for a judge’s recusal. 24
    Nor was there error with respect to the grant of immunity
    to Julie. The language of the relevant statute, Neb. Rev. Stat.
    § 29-2011.02 (Reissue 2016), and our case law interpreting
    that statute, 25 provides that because the Legislature “has given
    courts the power to immunize a witness solely upon the request
    24
    Neb. Rev. Code of Judicial Conduct § 5-302.9.
    25
    State v. Phillips, 
    286 Neb. 974
    , 
    840 N.W.2d 500
    (2013).
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    of the prosecutor, it is not a power the court can exercise upon
    the request of the defendant or upon its own initiative.” 26 The
    court is not obligated under § 29-2011.02 to notify a defendant
    when the State offers a witness immunity. As such, the district
    court did not show bias or prejudice against Lierman by failing
    to provide notice to him.
    To the extent that Lierman is suggesting that the hearing
    in which Julie was given immunity might have been consid-
    ered an ex parte communication, this argument is also without
    merit. The hearing took place in a separately docketed case, in
    open court, and on the record. There is no merit to Lierman’s
    fourth assignment of error.
    5. Excessive Sentences
    (a) Standard of Review
    [12,13] An appellate court will not disturb a sentence
    imposed within the statutory limits absent an abuse of discre-
    tion by the trial court. 27 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 con-
    science, reason, and evidence. 28
    (b) Analysis
    In his fifth assignment of error, Lierman contends that the
    district court’s sentences were excessive. Lierman argues that
    he is obese and in poor health, with no record of prior sexual
    assault convictions, and that at his age, his sentence total of 70
    to 140 years’ imprisonment amounts to a life sentence.
    When imposing a sentence, a sentencing judge should con-
    sider the defendant’s (1) age, (2) mentality, (3) education and
    experience, (4) social and cultural background, (5) past crimi-
    nal record or record of law-abiding conduct, and (6) motivation
    for the offense, as well as (7) the nature of the offense and
    26
    Id. at 989,
    840 N.W.2d at 514.
    27
    State v. Lee, 
    304 Neb. 252
    , 
    934 N.W.2d 145
    (2019).
    28
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    (8) the violence involved in the commission of the crime. 29
    The appropriateness of a sentence is necessarily a subjective
    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. 30
    We have reviewed Lierman’s sentences and conclude that
    they were not excessive. Lierman was convicted of multiple
    counts of sexual assault of his adolescent daughter over a
    period of several years. The sentences were within statutory
    limits and were not an abuse of discretion. This assignment of
    error is without merit.
    6. Subpoenas Duces Tecum
    (a) Standard of Review
    [14] Statutory interpretation is a question of law, which an
    appellate court resolves independently of the trial court. 31
    (b) Analysis
    In his sixth assignment of error, Lierman assigns that the
    district court erred in quashing the subpoenas duces tecum
    served upon several witness set for deposition. Lierman argues
    that in addition to their testimony, he ought to be permitted to
    ask deponents to provide materials relevant to B.L.’s allega-
    tions. In quashing the subpoenas duces tecum, the district court
    found that there was no statutory authority for such a request
    in criminal cases and that the lack of this procedure did not
    violate the constitution. Lierman argues on appeal that he is
    “concerned with the possibility that one of the witnesses may
    have some information that the State does not request or does
    not hand over pursuant to discovery. In that respect, [Lierman]
    can not obtain such information.” 32
    29
    Id. 30 Id.
    31
    Griffith v. Nebraska Dept. of Corr. Servs., 
    304 Neb. 287
    , 
    934 N.W.2d 169
         (2019).
    32
    Brief for appellant at 51.
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    No reciprocal discovery order had been sought in this case
    as of the time of the issuance of these subpoenas, but a Brady 33
    notice was filed. Lierman concedes that he does not accuse the
    State of failing to hand over Brady material.
    Neb. Rev. Stat. § 29-1917(1) (Reissue 2016) provides for the
    issuance of a deposition subpoena in a criminal case:
    (1) Except as provided in section 29-1926, at any time
    after the filing of an indictment or information in a felony
    prosecution, the prosecuting attorney or the defendant
    may request the court to allow the taking of a deposition
    of any person other than the defendant who may be a wit-
    ness in the trial of the offense. The court may order the
    taking of the deposition when it finds the testimony of
    the witness:
    (a) May be material or relevant to the issue to be deter-
    mined at the trial of the offense; or
    (b) May be of assistance to the parties in the prepara-
    tion of their respective cases.
    Both § 29-1917(3) and Neb. Rev. Stat. § 29-1905 (Reissue
    2016) similarly provide that the taking of the deposition of a
    witness “shall be governed in all respects as the taking of depo-
    sitions in civil cases.”
    The general procedures to be used in issuing subpoenas in
    a civil case are set forth in Neb. Rev. Stat. § 25-1223 (Cum.
    Supp. 2018). Neb. Rev. Stat. § 25-1224(1) (Cum. Supp. 2018)
    provides:
    A subpoena commanding an individual to appear and
    testify at a trial or deposition may command that at the
    same time and place specified in the subpoena for the
    individual to appear and testify, the individual must pro-
    duce designated documents, electronically stored infor-
    mation, or tangible things in the individual’s possession,
    custody, or control. The scope of a command to produce
    documents, electronically stored information, or tangible
    33
    Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
    (1963).
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    things pursuant to this section is governed by the rules of
    discovery in civil cases.
    This section, when considered with §§ 29-1905 and 29-1917,
    forms the basis of Lierman’s argument on appeal that “[t]he
    proceedings in taking the deposition of a witness pursuant to
    this section and returning it to the court shall be governed
    in all respects as the taking of depositions in civil cases.” 34
    Lierman suggests that the ability to seek “designated docu-
    ments, electronically stored information, or tangible things in
    the individual’s possession, custody, or control” is part of the
    procedure referenced in §§ 29-1905 and 29-1917.
    Section 25-1223 generally sets forth the procedure for the
    issuance of trial and deposition subpoenas. The power to
    specifically issue a subpoena duces tecum is the topic of
    § 25-1224. It is § 25-1224(1) which explicitly notes that “[t]he
    scope of a command to produce documents, electronically
    stored information, or tangible things pursuant to this section is
    governed by the rules of discovery in civil cases.”
    The crux of Lierman’s argument is that a subpoena duces
    tecum allows him to obtain records that he might not otherwise
    have known existed. But even assuming that the subpoena
    duces tecum is available in criminal cases in Nebraska, it is not
    intended to be used as a “‘fishing expedition.’” 35 Generally,
    documents sought in such a way are subject to a showing of
    relevance and admissibility, with requested documents identi-
    fied with adequate specificity. 36 Nebraska’s rules of civil dis-
    covery provide that “the designation of the materials to be pro-
    duced pursuant to the subpoena shall be attached to or included
    in the notice.” 37
    34
    § 29-1917(3).
    35
    United States v. Nixon, 
    418 U.S. 683
    , 700, 
    94 S. Ct. 3090
    , 
    41 L. Ed. 2d 1039
    (1974).
    36
    2 Barbara E. Bergman & Nancy Hollander, Wharton’s Criminal Evidence
    § 10:9 (15th ed. 1998 & Cum. Supp. 2019-20) (collecting cases).
    37
    Neb. Ct. R. Disc. § 6-330(C)(1) (rev. 2016).
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    As an initial matter, we lack a complete record on this
    issue. The record before this court generally shows that
    Lierman sought deposition testimony and documents, but,
    with a few exceptions, the record does not include the perti-
    nent notices of deposition or otherwise identify the witnesses
    upon whom notices were served. Moreover, Lierman failed to
    explain below or on appeal what documents he would have
    requested that witnesses bring to their depositions or what
    documents he believes they might have had in their posses-
    sion, custody, or control. But without this showing, Lierman’s
    subpoenas amount to no more than an impermissible fish-
    ing expedition.
    For these reasons, we find no error in the district court’s
    quashing of the subpoenas duces tecum, and Lierman’s assign-
    ment of error is without merit.
    7. Ineffective Assistance of Counsel
    (a) Standard of Review and
    Propositions of Law
    [15] 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. 38
    [16] 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 perform­
    ance which is known to the defendant or is apparent from
    the record. 39 Once raised, the appellate court will determine
    whether the record on appeal is sufficient to review the merits
    of the ineffective performance claims. 40
    38
    State v. Lee, supra note 27.
    39
    Id. 40 Id.
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    [17,18] In order to know whether the record is insufficient
    to address assertions on direct appeal that trial counsel was
    ineffective, appellate counsel must assign and argue deficiency
    with enough particularity (1) for an appellate court to make a
    determination of whether the claim can be decided upon the
    trial record and (2) for 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. 41 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. 42
    (b) Analysis
    In his final assignment of error, Lierman assigns that his
    trial counsel was ineffective by (1) failing to call certain wit-
    nesses, (2) not utilizing evidence of Lierman’s driving logs to
    form an alibi defense, (3) failing to file a motion in limine to
    exclude evidence regarding B.L.’s difficulties at school and
    general unhappiness, (4) not objecting to the order in which the
    State presented its evidence, and (5) not objecting to the State’s
    use of B.L.’s suicide attempts and ideation.
    (i) Failure to Call Certain Witnesses
    Lierman first assigns that his counsel was ineffective in fail-
    ing to call two particular witnesses: Dr. Ashutosh Atri, a doctor
    at the hospital where B.L. was admitted following her suicide
    attempt, and Dr. Hugo Gonzalez, another doctor who would
    have testified that B.L. never reported a sexual assault to him.
    Lierman alleges Atri would have testified that B.L. indicated
    early in her stay she was not a victim of sexual assault, that
    she participated in family counseling sessions, and, further, that
    41
    Id. 42 Id.
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    she made no allegations of sexual assault until she learned she
    might be discharged to go home soon.
    There is nothing in the record to explain why counsel did
    not call Atri and Gonzalez. As such, we lack the record to
    determine this issue on direct appeal.
    We additionally note that Lierman argues that his trial coun-
    sel was ineffective in failing to ask certain questions of B.L.’s
    aunt. But we need not consider that argument, because Lierman
    did not separately assign that failure as error. 43
    (ii) Driving Logs as Alibi Defense
    Lierman argues that his trial counsel erred in not pursuing an
    alibi defense through the use of Lierman’s driving logs, which
    were apparently created by Lierman himself. Lierman claims
    those logs would have shown that he was on the road during
    some of the “relevant dates.”
    There is nothing in the record to explain why counsel chose
    not to introduce these driving records. As such, we lack the
    record to determine this issue on direct appeal.
    (iii) Failure to File Motion in Limine
    Regarding B.L.’s School and
    Home Difficulties
    Lierman argues that trial counsel was ineffective in fail-
    ing to file pretrial motions in limine regarding “evidence
    that would call into question the credibility of the State’s
    witnesses.” 44 Lierman contends that had trial counsel done so,
    counsel would have known what evidence would have been
    admissible versus inadmissible and would have been better
    prepared for trial.
    Lierman has not sufficiently pled this allegation. He does
    not identify what evidence should have been subject to a
    motion in limine or which witness’ credibility would have been
    43
    See In re Estate of Graham, 
    301 Neb. 594
    , 
    919 N.W.2d 714
    (2018).
    44
    Brief for appellant at 54.
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    challenged by that evidence. As such, we find that this allega-
    tion of deficient conduct has not been pled with the specificity
    necessary to avoid a future procedural bar.
    (iv) Failure to Object to Order of
    State-Presented Evidence
    Lierman next contends that his counsel was ineffective
    in failing to object to the order in which the State pre-
    sented its evidence. Specifically, Lierman argues that at the
    § 27-414 hearing held prior to trial, the evidence of A.L.’s
    allegations was found by the trial court to be conditionally
    admissible dependent upon a showing of sufficient factual
    similarities and trial counsel should have objected when the
    State offered that evidence prior to showing those similari-
    ties. Lierman argues that “counsel should have objected to the
    sequence of the evidence being presented because the Court
    gave counsel the opportunity to force the State to produce
    evidence in another order than the one it was comfortable
    with.” 45 We have a sufficient record to determine this issue
    on direct appeal, and we find that trial counsel was not
    ineffective.
    First, we observe that Neb. Rev. Stat. § 29-2016 (Reissue
    2016) sets forth the procedure that a trial court should follow in
    conducting a criminal trial. There is nothing in that section, nor
    does Lierman direct us to other law, that might suggest that a
    criminal defendant has any control, directly or otherwise, over
    the order in which the State presents its evidence.
    Lierman suggests that he had the ability to dictate the
    sequence of the State’s evidence had counsel objected and held
    the State to the district court’s earlier order finding the State’s
    § 27-414 evidence to be only conditionally admissible. But
    having reviewed the record as a whole, we conclude that the
    State made a sufficient showing as to the similarities between
    A.L.’s and B.L.’s allegations such that A.L.’s allegations
    45
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    were admissible. As such, Lierman cannot show that counsel
    was ineffective.
    (v) Failure to Object to State’s
    Use of Lierman’s Suicide Attempts
    Finally, Lierman asserts that his trial counsel was ineffec-
    tive for failing to object to the admission into evidence of
    Lierman’s two suicide attempts. One attempt occurred during
    a standoff between him and law enforcement when he returned
    home from a trucking job to find that A.L. had accused him of
    sexual abuse. The second attempt occurred while he was in jail
    on those charges.
    The record indicates that these issues were addressed at a
    pretrial hearing on Lierman’s motions to suppress, in limine,
    and for a determination of relevancy. The trial court, in its
    order largely denying Lierman’s motions, found that the events
    were relevant and were admissible as evidence of Lierman’s
    consciousness of guilt. In particular, Lierman now argues
    that while suicide attempts might be probative of “‘conscious
    guilt,’” they also speak toward “potential mental illness,” and
    that thus, the admission of this evidence was more prejudicial
    than probative. 46
    An analysis under § 27-403 consists of a balancing test,
    which is left to the sound discretion of the trial court. 47 That
    balancing test provides that “[a]lthough relevant, evidence may
    be excluded if its probative value is substantially outweighed
    by the danger of unfair prejudice, confusion of the issues, or
    misleading the jury, or by considerations of undue delay, waste
    of time, or needless presentation of cumulative evidence.” 48
    We find that the district court did not abuse its discretion in
    admitting evidence of Lierman’s suicide attempts and ideation.
    Both suicide attempts were made contemporaneous to A.L.’s
    46
    Id. at 55.
    47
    See State v. Stubbendieck, 
    302 Neb. 70
    2, 
    924 N.W.2d 711
    (2019).
    48
    § 27-403. See State v. Stubbendieck, supra note 47.
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    allegations, one immediately prior to Lierman’s arrest at a time
    when he was aware that he was about to arrested. The second
    attempt was made at the jail when Lierman was incarcerated
    after his arrest and immediately following a visit with members
    of his family.
    It was not an abuse of discretion for the district court to
    conclude that Lierman’s actions were probative of his guilt
    and that this outweighed any possible prejudice. We decline
    Lierman’s invitation to conclude that a suicide attempt can
    never be probative of consciousness of guilt; indeed, the facts
    in this case show that these suicide attempts were probative of
    Lierman’s consciousness of guilt.
    Because the district court did not err in admitting the evi-
    dence, counsel was not ineffective for failing to object. There
    is no merit to Lierman’s argument to the contrary.
    V. CONCLUSION
    The judgment and sentences of the district court are affirmed.
    Affirmed.
    Freudenberg, J., not participating.
    Cassel, J., concurring.
    I write separately only to address Lierman’s argument, which
    he makes at least implicitly, that the scope of discovery and, in
    particular, the scope of a subpoena duces tecum in a criminal
    case is as broad as in a civil case. He is wrong.
    Civil and criminal cases have different limitations upon
    when depositions may be taken. In civil cases, depositions
    may be taken without leave of court, except within 30 days of
    service of summons. 1 And there are exceptions to the 30‑day
    limitation. 2 In criminal cases, however, leave of court is always
    required. 3 Although this statute was amended in 2019, the same
    1
    See Neb. Ct. R. Disc. § 6‑330 (rev. 2016).
    2
    See
    id. 3 See
    Neb. Rev. Stat. § 29‑1917(1) (Supp. 2019).
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    requirement for leave existed at all relevant times in the pros-
    ecution against Lierman. 4
    Section 29‑1917 limits the scope of a discovery deposition
    in a criminal case in two significant ways. First, only a “person
    other than the defendant who may be a witness in the trial of
    the offense” may be deposed. 5 In other words, if the person
    could not possibly be called as a witness at the trial in the
    criminal case, no deposition is permitted.
    The second limitation is more significant. A court is permit-
    ted to order the taking of a deposition in a criminal case only
    if the witness’ testimony “[m]ay be material or relevant to the
    issue to be determined at the trial of the offense” or “[m]ay be
    of assistance to the parties in the preparation of their respective
    cases.” 6 In a criminal case, the elements of the charged crime
    or crimes define the issues. 7 Thus, a court may grant leave to
    take a criminal case deposition only where the testimony would
    be material or relevant to the existence or nonexistence of an
    element of a charged offense or where the testimony would
    assist a party in preparing its case.
    In contrast, the scope of discovery in civil cases extends
    much further. Generally, in a civil case, parties may obtain dis-
    covery “regarding any matter, not privileged, which is relevant
    to the subject matter involved in the pending action.” 8 Further,
    the rule adds, “It is not ground for objection that the informa-
    tion sought will be inadmissible at the trial if the information
    sought appears reasonably calculated to lead to the discovery
    of admissible evidence.” 9 Obviously, the civil discovery rule
    articulates a much wider scope for inquiry than is permitted in
    a criminal case.
    4
    See § 29‑1917 (Reissue 2016).
    5
    § 29‑1917(1).
    6
    § 29‑1917(1)(a) and (b) (emphasis supplied).
    7
    See State v. George, 
    228 Neb. 774
    , 
    424 N.W.2d 350
    (1988).
    8
    Neb. Ct. R. Disc. § 6‑326(b)(1) (emphasis supplied).
    9
    Id. (emphasis supplied).
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    Neither statute upon which Lierman relies expands the scope
    of depositions in criminal cases. He cites two criminal pro-
    cedure statutes: § 29‑1917 and Neb. Rev. Stat. § 29‑1905
    (Reissue 2016). In both instances, his reliance is misplaced.
    First, he reads too much into § 29‑1905, which states: “The
    proceedings in taking the examination of such [deposition] wit-
    ness and returning it to court shall be governed in all respects
    as the taking of depositions in all civil cases.” In reading a
    penal statute, a court must determine and give effect to the pur-
    pose and intent of the Legislature as ascertained from the entire
    language of the statute considered in its plain, ordinary, and
    popular sense. 10 The plain language of § 29‑1905 applies the
    civil procedures to criminal cases only in “taking the examina-
    tion” and “returning it to court.” In the context of civil discov-
    ery depositions under § 6‑330, the procedures of “taking” and
    “returning” would include subsections (c) 11 and (f). 12
    Second, the text of § 29‑1905 predates discovery deposi-
    tions in criminal cases. It was first enacted in 1873 13 and has
    not been amended since the 1943 codification. 14 The criminal
    case discovery statute, § 29‑1917, in contrast, was initially
    adopted only in 1969. 15 Section 29‑1905 simply does not speak
    to the scope of discovery permitted in a deposition in a crimi-
    nal case.
    Lierman’s reliance on § 29‑1917(3) fares no better. At
    the relevant times in the court below, this subsection stated
    only, “The proceedings in taking the deposition of a witness
    pursuant to this section and returning it to the court shall be
    10
    State v. Jedlicka, ante p. 52, ___ N.W.2d ___ (2020).
    11
    § 6‑330(c) (“Examination and Cross‑Examination; Record of Examination;
    Oath; Objections”).
    12
    § 6‑330(f) (“Certification and Delivery by Officer; Copies; Notice of
    Delivery”).
    13
    Gen. Stat. ch. 58, § 463, p. 825 (1873).
    14
    See § 29‑1905 (1943).
    15
    See 1969 Neb. Laws, ch. 235, § 6, p. 870.
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    governed in all respects as the taking of depositions in civil
    cases.” 16 This language, like § 29‑1905, is limited to the
    “taking” and “returning” of the deposition. It addresses pro-
    cedural steps rather than the scope of discovery. In 2019, the
    Legislature appended the words, “including section 25‑1223.” 17
    This was apparently done in light of a substantial rewrite of
    Neb. Rev. Stat. § 25‑1223 (Cum. Supp. 2018) in 2017. 18 The
    changes in § 25‑1223 speak mainly to the “nuts and bolts” of
    the procedures for issuance, service, and return of a subpoena.
    And nothing in the 2019 amendment of § 29‑1917 to include
    provisions from § 25‑1223 regarding “taking” and “return-
    ing” a deposition suggests, let alone dictates, any intention
    to modify the scope of inquiry permitted in a deposition in a
    criminal case.
    These statutes, taken as a whole, demonstrate the
    Legislature’s understanding that the issues in a criminal case
    are always circumscribed by the elements of the crime or
    crimes with which a defendant is charged. And the differences
    in scope and procedure prevent discovery from being used
    in a “fishing expedition” or an attempt to confuse the issues.
    Thus, while I agree with the outcome of the court’s decision,
    I would squarely reject Lierman’s attempt to judicially expand
    the scope of discovery in criminal cases beyond that clearly
    articulated by the Legislature.
    16
    § 29‑1917(3) (Reissue 2016).
    17
    § 29‑1917(3) (Supp. 2019).
    18
    See 2017 Neb. Laws, L.B. 509, § 1.