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

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/30/2022 01:06 AM CDT
- 958 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958State of Nebraska, appellee, v.
Douglas H. Anders, appellant.
___ N.W.2d ___
Filed July 15, 2022. No. S-21-413.
1. Effectiveness of Counsel: Appeal and Error. Assignments of error
on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate court will not
scour the remainder of the brief in search of such specificity.
2. Convictions: Appeal and Error. In an appeal of a criminal conviction,
an appellate court reviews the evidence in a light most favorable to the
prosecution.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Trial: Convictions: Evidence: Appeal and Error. An appellate court
will sustain a conviction in a bench trial of a criminal case if the prop-
erly admitted evidence, viewed and construed most favorably to the
State, is sufficient to support that conviction. In making this determi-
nation, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, evaluate explanations, or reweigh
the evidence presented, which are within a fact finder’s province for
disposition. Instead, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.
5. Sexual Assault: Testimony: Proof. The State is not required to cor-
roborate a victim’s testimony in cases of first degree sexual assault; if
believed by the finder of fact, the victim’s testimony alone is sufficient.
6. Witnesses: Appeal and Error. It is not in the purview of the appellate
court to determine the credibility of witnesses on appeal, as such deter-
minations are for the finder of fact.
- 959 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 9587. Statutes: Intent. When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory language, understood
in context.
8. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
9. Statutes. It is not within the province of the courts to read meaning into
a statute that is not there or to read anything direct and plain out of a
statute.
10. Sexual Assault. Under Neb. Rev. Stat. § 28-318(8)(a)(iv) (Cum. Supp.
2020), a victim does not consent to sexual penetration if the consent, if
any was actually given, was the result of the actor’s deception as to the
nature or purpose of the act on the part of the actor.
11. Sexual Assault: Words and Phrases. The word “deception,” as used in
Neb. Rev. Stat. § 28-318(8)(a)(iv) (Cum. Supp. 2020), has a plain and
ordinary meaning: words or conduct, or both words and conduct, caus-
ing the victim to believe what is false.
12. Criminal Law: Statutes: Appeal and Error. In strictly construing
penal statutes, an appellate court does not supply missing words or sen-
tences to make clear that which is indefinite, or to supply that which is
not there.
13. Convictions: Evidence: Appeal and Error. Where there is sufficient
evidence to support a conviction under one theory of guilt, an appellate
court need not consider whether the evidence was sufficient to support
the alternative theory or theories of guilt.
14. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
15. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
16. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must
show that his or her counsel’s performance was deficient and that this
deficient performance actually prejudiced the defendant’s defense.
- 960 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 95817. ____: ____. To show that counsel’s performance was deficient, a defend­
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
18. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice, the defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
19. Trial: Effectiveness of Counsel: Presumptions: Appeal and Error. In
determining whether trial counsel’s performance was deficient, there is
a strong presumption that counsel acted reasonably.
20 Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
21. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
22. Constitutional Law: Criminal Law: Jury Trials: Appeal and Error.
Whether cumulative error deprived a criminal defendant of his or her
Sixth Amendment right to a trial by an impartial jury presents a question
of law to be reviewed de novo.
23. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
24. Effectiveness of Counsel. A pro se party is held to the same standards
as one who is represented by counsel.
25. Trial: Attorneys at Law. The decision whether or not to object has long
been held to be part of trial strategy.
26. Effectiveness of Counsel: Trial. When reviewing claims of alleged
ineffective assistance of counsel, trial counsel is afforded due deference
to formulate trial strategy and tactics.
27. Effectiveness of Counsel: Presumptions: Appeal and Error. There
is a strong presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions.
28. Constitutional Law: Jury Trials: Appeal and Error. Although one or
more trial errors might not, standing alone, constitute prejudicial error,
their cumulative effect may be to deprive the defendant of his or her
constitutional right to a public trial by an impartial jury.
29. Trial: Evidence: Presumptions: Appeal and Error. In a case tried to
the court without a jury, there is a presumption that the trial court, in
- 961 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958reaching its decision, considered only evidence that is competent and
relevant, and this court will not overturn such a decision where there
is sufficient material, competent, and relevant evidence to sustain the
judgment.
30. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
31. Constitutional Law: Criminal Law: Sentences. The constitutional
protection against cruel and unusual punishment does not require strict
proportionality between crime and sentence, but, rather, forbids only
extreme sentences that are grossly disproportionate to the crime.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Douglas H. Anders, pro se, and Timothy S. Noerrlinger for
appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Douglas H. Anders appeals from his conviction and sen-
tence for first degree sexual assault. At the conclusion of a
bench trial, the court found that Anders exploited his position
as K.G.’s Olympic trainer and sexually penetrated her through
deception and coercion. Anders primarily challenges the suf-
ficiency of the evidence to support his conviction. He also
asserts that his sentence was excessive and that his trial coun-
sel was ineffective. Finding no merit to his appeal, we affirm.
II. BACKGROUND
The State charged Anders with first degree sexual assault,
a Class II felony, pursuant to Neb. Rev. Stat. § 28-319(1)
(Reissue 2016). The State alleged that Anders sexually
- 962 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958penetrated K.G. under the guise that it was necessary to aid
in her physical recovery from athletic training.
A bench trial was held where the State and Anders offered
evidence. In this section, we summarize testimony and facts
pertinent to the instant appeal, viewed in the light most favor-
able to the State. In the analysis section below, we provide
additional facts where necessary.
1. State’s Evidence
The State offered the testimony of multiple witnesses,
including K.G., K.G.’s therapist, K.G.’s friends and family,
M.C. (another woman who testified that she was sexually
assaulted by Anders), and criminal investigators.
(a) K.G.’s Testimony
K.G. testified that Anders trained her at his commercial gym
to become an Olympic weightlifter. During K.G.’s training,
Anders performed “adjustments” to her, claiming that they
would alleviate the pain and soreness she felt in her pelvis and
legs. Anders would “adjust” K.G. by inserting his fingers into
her vagina while she lay on a chiropractic bed.
K.G. testified that she was not yet 16 years old the first time
that Anders performed an “adjustment” on her. K.G. remem-
bered that her mom “pick[ed her] up” from the gym that day,
because she “couldn’t drive” yet. Anders was 35 years her
senior. K.G. was uncomfortable and embarrassed by Anders’
actions, but she did not protest, because she trusted him and
wanted to alleviate her pain.
Anders convinced K.G. to not tell anyone about the “treat-
ment,” because he claimed that although it was commonplace
in the sports world, it was “taboo” to talk about it to others.
Accordingly, K.G. generally kept Anders’ conduct a secret
while under his training. K.G. never went to law enforcement
and only discussed being sexually penetrated by Anders with a
friend and her former boyfriend.
Anders’ “adjustments” progressed into what he called “sports
massage[s],” where he would rub K.G.’s inner thighs. Anders
- 963 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958told K.G. that there was a muscle in her thigh that was affect-
ing the way her foot turned while lifting and that the “sports
massage” was necessary to increase blood flow. These mas-
sages ended with Anders’ touching K.G.’s genital area. K.G.
testified that Anders would often have an erection while mas-
saging her. Again, K.G. was uncomfortable; but because she
believed his explanation, she did not protest.
Anders’ conduct advanced further. Eventually, Anders started
inserting foreign objects into K.G.’s vagina to “stimulat[e]”
recovery. This progressed over time to penetrating her vagina
with his penis.
K.G. testified that she initially “refuse[d] any type of pen-
etration by [Anders] and, usually, that was a boundary that was
pushed.” According to K.G., no matter how many times she
protested being sexually penetrated by Anders, he would insist
that it was necessary for her “recovery” until she just “caved
and just submitted to [it].”
Several times, K.G. expressed her desire that the touching
“not be part of the training” and that she “still want[ed] to be
an athlete and do weightlifting[,] but [she didn’t] want to con-
tinue with the other stuff.” However, when K.G. would bring
this desire to Anders, he would get upset and threaten to stop
training her or kick her out of his gym until she begged him
to return. K.G. always begged to return, because Anders had
manipulated her into believing that she would not achieve her
Olympic dreams if he did not train her.
K.G. testified that Anders manipulated her in other ways
as well. Anders isolated K.G. from her social life and
demanded that she focus her attention on training. Anders
told K.G. that she needed to “get more focused, more seri-
ous” about her training and “[could not] necessarily go out
Friday nights because [she] had to be in the gym to train on
Saturday.” When K.G. was not at his gym, Anders would
text her, asking if she was “‘home yet.’” Consequently, K.G.
stopped socializing with her friends, because she “had to be
serious and focused.” It came to the point where she would
- 964 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958“first ask him if [she] could go.” K.G. also began working at
the gym.
Anders’ actions became “less adjustment, less massage,
more just intercourse whenever he wanted, whenever it was
convenient, whenever there was an opportunity.” K.G. testi-
fied that the sexual intercourse became such a “normal part of
[her] being at the gym” that she would initiate it with Anders
on occasion.
After 8 years, K.G. finally stopped training under Anders
and permanently left the gym. K.G. then told her parents that
Anders had been sexually abusing her and sought therapy.
Anders’ conduct was finally brought to the attention of
law enforcement when K.G.’s therapist complied with his
legal obligation to report sexual abuse to authorities. After
law enforcement launched an investigation into Anders, K.G.
talked to investigators and gave them the cell phones that she
used during and after her time at Anders’ gym.
(b) M.C.’s Testimony
M.C. testified to similar conduct by Anders directed toward
her. M.C. also trained and worked at Anders’ gym. M.C.
claimed that he had sexually assaulted her.
Before trial, Anders filed a motion in limine to bar M.C.
from testifying under Neb. Rev. Stat. § 27-414 (Reissue 2016).
The court held a hearing where M.C. testified regarding those
events. After the hearing, the court overruled Anders’ motion
in limine and allowed M.C. to testify at trial. At trial, Anders
did not renew his objection when the State called M.C.
to testify.
At trial, M.C. testified that Anders performed some “adjust-
ments or chiropractic measures” on her for pain that she was
suffering. Anders never inserted his fingers into M.C.’s vagina
during these sessions. However, M.C. suffered a broken tail-
bone at one point in her training and Anders claimed he could
“fix [her] broken tailbone” by inserting his fingers into her
vagina to “correct” it.
- 965 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958M.C. was skeptical of Anders’ claim, because he was not a
doctor. Anders responded to M.C.’s skepticism by asking to do
an initial examination on her to see if treating her tailbone was
“even possible.”
After M.C. agreed to the initial procedure, Anders placed
his hands on her inner thigh near her genital areas, moved his
hands up to “where [her] leg connects to [her] pelvis,” and
moved his hands over her breasts before ending the procedure.
Anders informed her that he could “fix” her tailbone, but M.C.
told him she needed time to think it over.
However, M.C. never decided whether to consent to Anders’
“treatment,” because she was permanently “kicked out of the
gym.” A few days after Anders’ examination of M.C., K.G.
confronted her about arriving late to the gym. M.C. discussed
the matter with K.G. in a private room, where she explained
she believed Anders was manipulating K.G. Anders then “burst
in” the room and told M.C., “that’s it, you’re out.” M.C. left
and never went back to the gym.
(c) Investigators’ Testimony
The State called multiple investigators to detail their investi-
gation into Anders and the collection of evidence presented in
the case. Some of the most notable testimony by the investiga-
tors regarded K.G. and Anders’ cell phone communications.
An investigator testified to receiving phone records from
K.G.’s phone carriers and recovering two phones from K.G.
and one phone from Anders. The phone carriers’ records listed
K.G.’s phone number and stated that 62.56 percent of all com-
munications to K.G.’s phone number were either to or from
Anders’ phone number. Anders provided the investigator with
his number.
A second investigator testified that he used computer soft-
ware to download text messages from two phones owned by
K.G. and one phone owned by Anders. The phones matched
K.G.’s and Anders’ phone numbers. The investigator explained
that some text messages could not be retrieved, because they
- 966 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958had been deleted. However, the investigator was able to recover
some messages that were marked for deletion but had not yet
been removed from the phones’ databases.
The State introduced the text messages that investigators
recovered as exhibits. As an example, Anders texted K.G.
that “I need some,” to which she responded, “I’d give some
but my tailbone [is] sore.” Another text Anders sent to K.G.
stated, “No candy touching my LIPS . . . UNLESS [it’s] ON
YOURS.” Yet another text message included K.G.’s mention-
ing taking a nap with Anders after “bang[ing].”
(d) Other Witnesses
K.G.’s friend and her former boyfriend testified that while
K.G. was still training under Anders, she told them about his
sexual abuse. K.G.’s father also testified. While K.G.’s father
was not aware of the sexual abuse until after she left the
gym, he confirmed her general timeline of events (her train-
ing schedule, the amount of time she spent at the gym, her
informing him of the abuse after she permanently left the gym,
her decision to seek counseling, et cetera). Further, Anders’
ex-business partner testified that he saw Anders and K.G. kiss-
ing in the gym’s spa area.
At the conclusion of the State’s case, Anders moved to dis-
miss the charge against him, arguing the State failed to provide
sufficient evidence to support his conviction. The court over-
ruled Anders’ motion.
2. Anders’ Defense
Anders testified in his defense and presented multiple
witnesses.
(a) Anders’ Testimony
Anders denied ever performing any sexual acts on K.G.
or M.C. and attacked the credibility of the State’s witnesses.
Anders asserted that K.G. had mental issues that caused her
to fabricate her allegations, claiming that she made them up
after seeing reports that a doctor who was associated with
- 967 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958U.S. “gymnastic programs that were Olympic-certified” had
sex­ually abused female athletes. Anders acknowledged that he
was not qualified to make any medical response to a medical
report. Nevertheless, he contended that he had obtained tests
results from K.G.’s blood showing she was schizophrenic.
(Anders did not introduce the test results or the testimony of
the clinical psychologists with whom he claimed to have dis-
cussed her test results.) Further, Anders insisted that K.G.’s
friend and her former boyfriend were lying that she informed
them of his sexual abuse years before the reports against the
Olympic doctor came to light. Anders also asserted the M.C.
was lying and had mental issues.
Anders attempted to explain away many of the text mes-
sages that investigators retrieved from his and K.G.’s phones.
For instance, Anders claimed that the “candy touching [my]
lips” message was regarding candy-flavored lip balm that he
was using to treat a cold sore. Anders also asserted that K.G.
could not have been talking about him in the message that
referred to taking a nap after “bang[ing],” because he never
napped in the office. Regarding other messages, he simply
denied ever sending or receiving them.
Finally, Anders claimed that his ex-business partner misin-
terpreted the kiss that he gave K.G. Anders stated he “kissed
[K.G.] on the cheek” after she “missed . . . a personal best.”
Anders maintained that he would regularly do the same thing
for any of his clients—including men.
(b) Character Witnesses
Anders presented multiple witnesses who either worked at
or attended his gym. The witnesses testified that they never
saw Anders sexually abuse K.G. and did not believe he would
do so based on their interactions with him. However, when
confronted with K.G.’s and Anders’ text messages, the wit-
nesses were surprised and could not reasonably justify the text
messages’ explicit contents.
- 968 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958After resting Anders’ case, his trial counsel renewed his
motion to dismiss. The court overruled the motion.
3. Verdict and Sentencing
Acting as the trier of fact, the court found Anders guilty of
one count of first degree sexual assault. The court stated that
Anders and K.G. had a lengthy sexual history in which he
sexually penetrated her without her consent on multiple occa-
sions “through coercion, at times it was through deception, and
at times it was through both coercion and deception.” The court
also made explicit witness credibility determinations, finding
K.G. credible and Anders not credible. Anders filed a motion
for new trial, which the court overruled.
At Anders’ sentencing hearing, the court listened to K.G.’s
victim statement and reviewed the presentence investigation
report. The court then stated to Anders:
[I]t’s very disturbing that you were 50 or so when [K.G.],
a teenager — and you started a sexual relationship with
her. You were in a position of authority, command, influ-
ence, and yet you manipulated and isolated her. Despite
overwhelming evidence of your guilt, your only response
to the conviction is, I did not have any sexual contact
with [her].
The court sentenced Anders to a term of 25 to 30 years’
imprisonment.
Anders filed a timely appeal and a petition to bypass the
Nebraska Court of Appeals. We denied Anders’ petition to
bypass, but moved the case to our docket. 1
4. Changes in Counsel
Anders has changed his counsel three times during the course
of his proceedings: (1) before trial; (2) after the court issued
its verdict, but before Anders was sentenced; and (3) after
Anders’ notice of appeal was filed, but before oral arguments
1
See Neb. Rev. Stat. § 24-1106(2) and (3) (Cum. Supp. 2020).
- 969 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958were presented. In total, Anders was represented by three dif-
ferent trial counsel and two appellate counsel. Because Anders
assigns ineffective assistance of counsel, we clarify the time
periods during which each counsel represented him.
Anders retained his initial counsel—who represented him
during the discovery portion of his proceedings, including the
depositions of K.G. and her mother. Anders terminated his
initial counsel and retained his primary counsel. The court sus-
tained Anders’ initial counsel’s motion to withdraw.
Anders’ primary counsel represented him during the remain-
der of the discovery proceedings and at trial. At Anders’ sen-
tencing hearing, Anders “releas[ed]” his primary counsel from
representing him. The court allowed Anders’ primary counsel
to withdraw.
Anders then retained his postverdict counsel, who presented
arguments in support of his motion for new trial, represented
him at his sentencing hearing, and filed his notice of appeal.
By filing Anders’ notice of appeal, his postverdict counsel
became his appellate counsel. However, Anders filed a pro
se “Notice of Termination of Appellant’s Counsel” with the
Court of Appeals, stating that he notified his counsel that he
was “terminat[ed] effective[] immediately” and intended to
retain new appellate counsel. Anders’ postverdict counsel filed
a motion to withdraw, which the Court of Appeals held under
advisement and directed the counsel to file a motion to with-
draw with the district court. Anders’ postverdict counsel then
filed a motion to withdraw with the district court, which the
court sustained. After receiving a supplemental transcript, the
Court of Appeals reconsidered and sustained Anders’ postver-
dict counsel’s motion to withdraw.
Anders filed his appellate brief and petition to bypass
pro se. Anders then retained new appellate counsel—who
entered a written appearance, filed a reply brief, and pre-
sented oral argument to this court. At oral argument, appellate
counsel explained that he was retained “to orally argue the
[appeal] for [Anders].” However, we observe that appellate
- 970 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958counsel’s written appearance did not specify a limited scope of
representation. 2
After oral arguments were presented, and while the appeal
was under submission, Anders filed a written notice that he had
discharged his appellate counsel. In that notice, he reiterated
his reliance upon the assignments of error in his pro se brief.
III. ASSIGNMENTS OF ERROR
Anders assigns three categories of error, which we combine
and restate. Anders assigns that the evidence was insufficient
to support his conviction. He also assigns that he received
an excessive and unconstitutional sentence. Finally, Anders
assigns that he received ineffective assistance of trial counsel.
[1] We have held that assignments of error on direct appeal
regarding ineffective assistance of trial counsel must specifi-
cally allege deficient performance, and an appellate court will
not scour the remainder of the brief in search of such specific­
ity. 3 Therefore, we quote Anders’ assignments of error regard-
ing ineffective assistance of counsel.
Anders assigns his trial counsel was ineffective in:
A. Failing to insist upon expert testimony as to psycho-
logical coercion[;]
B. Failing to argue [sic] reliance upon deception as to
the nature or purpose of a sexual act must be objectively
reasonable[;]
C. Failing to object to inadmissible single, double, and
triple hearsay[;]
D. Failing to object to unreliable testimony by [M.C.]
as to an allegedly prior bad act that was dissimilar, did
not constitute a crime of sexual assault under [Neb. Rev.
Stat. § 27-413 (Reissue 2016)], and was unduly prejudi-
cial under [Neb. Rev. Stat. § 27-403 (Reissue 2016);]
E. Fail[ing] to impeach [his ex-business partner] about
his previous felony convictions, to object to his testimony
2
See Neb. Ct. R. of Prof. Cond. § 3-501.2(d) (rev. 2016).
3
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
- 971 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958as improper evidence of prior bad acts, to object to defense
witnesses being questioned about [his] testimony, and the
financial windfall [he] would derive from [Anders’] being
convicted[;]
F. Failing to object to inadmissible text messages from
[Anders’] and [K.G.’s] cell phones[;]
G. Fail[ing] to cross examine [K.G.] about the inconsist­
ent time periods of [Anders’] alleged misconduct between
her trial testimony and previous sworn statements[;]
H. Fail[ing] to seek the counseling records of [K.G.’s
therapist] under [State v. Trammell, 4] to cross examine
[him] thereon, and to retain a defense expert to determine
and testify if [K.G.] was suffering from false memory
syndrome, and whether or not [K.G.’s] reliance upon any
deception by [Anders] was reasonable and/or a result of
psychological coercion.
Anders also assigns his trial counsel’s “collective ineffec-
tiveness in failing to object to prejudicial inadmissible evidence
constitutes plain error under the cumulative error doctrine.”
IV. STANDARD OF REVIEW
[2,3] In an appeal of a criminal conviction, we review the
evidence in a light most favorable to the prosecution. 5 An
abuse of discretion occurs when a trial court’s decision is based
upon reasons that are untenable or unreasonable or if its action
is clearly against justice or conscience, reason, and evidence. 6
Additional standards will be set forth in the analysis section.
V. ANALYSIS
1. Sufficiency of Evidence
Anders assigns that the court erred in finding that there was
sufficient evidence to support his conviction for first degree
sexual assault. Anders presents two arguments. First, he argues
4
State v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (1989).
5
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
6
Id.- 972 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958the evidence was insufficient to prove that he sexually pene­
trated K.G., because the court should not have considered her
testimony. Anders also argues the evidence was insufficient
to prove that he induced K.G.’s consent through deception
or compelled her to submit through coercion. Each will be
addressed in turn.
(a) Standard of Review
[4] An appellate court will sustain a conviction in a bench
trial of a criminal case if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support that conviction. In making this determination, we
do not resolve conflicts in the evidence, pass on the credibility
of witnesses, evaluate explanations, or reweigh the evidence
presented, which are within a fact finder’s province for dispo-
sition. Instead, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. 7
(b) Statutes
Section 28-319(1) creates the offense at issue here. It states:
“Any person who subjects another person to sexual penetration
. . . without the consent of the victim . . . is guilty of sexual
assault in the first degree.” 8
For purposes of that offense, Neb. Rev. Stat. § 28-318 (Cum.
Supp. 2020) defines “[s]exual penetration” and “[w]ithout con-
sent.” This definitional statute states in part:
(6) Sexual penetration means sexual intercourse in its
ordinary meaning, . . . , or any intrusion, however slight,
of any part of the actor’s or victim’s body or any object
manipulated by the actor into the genital or anal openings
of the victim’s body which can be reasonably construed as
being for nonmedical, nonhealth, or nonlaw enforcement
7
State v. Taylor, 310 Neb. 376, 966 N.W.2d 510 (2021).
8
§ 28-319(1).
- 973 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958purposes. Sexual penetration shall not require emission
of semen.
....
(8) Without consent means:
(a)(i) The victim was compelled to submit due to the
use of force or threat of force or coercion, or (ii) the vic-
tim expressed a lack of consent through words, or (iii) the
victim expressed a lack of consent through conduct, or
(iv) the consent, if any was actually given, was the result
of the actor’s deception as to the identity of the actor or
the nature or purpose of the act on the part of the actor;
(b) The victim need only resist, either verbally or
physically, so as to make the victim’s refusal to consent
genuine and real and so as to reasonably make known to
the actor the victim’s refusal to consent[.] 9
(c) Discussion
(i) K.G.’s Testimony
Anders’ first sufficiency argument asserts that the court
should not have considered K.G.’s testimony, because it was
“uncorroborated and materially inconsistent.” 10 And without
K.G.’s testimony, he argues, the evidence was insufficient to
support his conviction.
Anders acknowledges that Neb. Rev. Stat. § 29-2028 (Reissue
2016) “did away with the [victim] corroboration requirement in
sexual assault cases.” 11 However, Anders asserts that § 29-2028
should not apply when the victim’s testimony is inconsistent
with prior statements. Anders alleges that K.G.’s trial testi-
mony was materially inconsistent with the affidavit she used
to seek a protection order against him and with her pretrial
deposition. In that testimony, Anders claims, K.G. stated that
he never sexually penetrated her before her 16th birthday.
9
§ 28-318(6) and (8) (emphasis supplied).
10
Brief for appellant at 33.
11
Id.
- 974 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958Although K.G.’s deposition appears in our record, her pro-
tection order application does not. But Anders’ argument fails
for two more basic reasons.
[5] First, it contradicts the corroboration statute. Since 1989,
the State has not been required to corroborate a victim’s testi-
mony in cases of first degree sexual assault; if believed by the
finder of fact, the victim’s testimony alone is sufficient. 12
[6] Second, it disregards our standard of review. It is not
in the purview of the appellate court to determine the cred-
ibility of witnesses on appeal, as such determinations are for
the finder of fact. 13 We decline to resolve evidentiary conflicts,
pass on witness credibility, evaluate explanations, or reweigh
the evidence.
(ii) Without Consent
Anders’ second insufficiency argument relies upon the statu-
tory definitions of the phrase “without consent.” Anders argues
the evidence was insufficient to prove that he induced K.G.’s
consent through deception or compelled her to submit through
coercion.
Because the first time that Anders sexually penetrated K.G.
was after he claimed he needed to do so to “adjust” her pelvis,
we begin with deception.
a. Deception
Anders argues there was insufficient evidence to prove that
he used deception to sexually penetrate K.G. He contends that
his statements—expressing a purpose to sexually penetrate
K.G. to “aid her physical recovery from workouts” 14—were not
deceptive, because it was not “objectively reasonable” for her
to believe that was the purpose of his conduct. 15 Anders’ argu-
ment requires this court to interpret § 28-318(8)(a)(iv).
12
State v. Mrza, supra note 3.
13
See State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020).
14
Brief for appellant at 17.
15
Id. (emphasis omitted).
- 975 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958[7-9] When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory language,
understood in context. 16 Our analysis begins with the text,
because statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous. 17 Neither is it within the province of
the courts to read meaning into a statute that is not there or to
read anything direct and plain out of a statute. 18
[10] Under § 28-318(8)(a)(iv), a victim does not consent to
sexual penetration if “the consent, if any was actually given,
was the result of the actor’s deception as to the identity of
the actor or the nature or purpose of the act on the part of the
actor.” The words of the statute thus impose two requirements
to hold an actor responsible for sexual penetration of a victim.
The actor must employ deception regarding either the identity
of the actor or the nature and purpose of the act on the part
of the actor. And the consent given, if any, must be the result
of the deception. Here, there is no suggestion that there was
any deception as to the identity of the actor; rather, the theory
of deception focused on the nature and purpose of Anders’
“treatment.”
[11] Deception is not statutorily defined. Legal dictionaries
have commonly defined “deception” as follows: “The act of
deliberately causing someone to believe that something is true
when the actor knows it to be false. . . . A trick intended to
make a person believe something untrue.” 19 But, more impor-
tant, the word “deception,” as used in § 28-318(8)(a)(iv), has a
16
State v. Taylor, supra note 7.
17
Id.18
Id.19
See, Black’s Law Dictionary 510 (11th ed. 2019); “Deception,” Merriam-
Webster.com, https://www.merrriam-webster.com/dictionary/deception (last
visited July 7, 2022) (“the act of causing someone to accept as true or
valid what is false or invalid”).
- 976 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958plain and ordinary meaning: words or conduct, or both words
and conduct, causing the victim to believe what is false. This
derives from two ordinary definitions. “[D]eception” is the
“action of deceiving or cheating,” the “fact or condition of
being deceived,” or “[t]hat which deceives; a piece of trickery;
a cheat, sham.” 20 “[D]eceive,” in turn, is to “cause to believe
what is false; to mislead as to a matter of fact, lead into error,
impose upon, delude, ‘take in.’” 21
Here, Anders argues, it is “wholly unreasonable for an intel-
ligent, emotionally, and socially well-adjusted high school
student to believe in the early period of her weight training an
obvious and self-serving lie by her trainer that digital sexual
penetration would aid her recovery from workouts.” 22 Thus, he
continues, even if “it happened as she claims, [K.G.’s] belief in
. . . Anders’ statements [was] unreasonable.” 23
[12] In part, Anders’ argument attempts to add words to
§ 28-318(8)(a)(iv). He invites us to insert a “reasonable reli-
ance requirement” into the statute. 24 But in strictly constru-
ing penal statutes, an appellate court does not supply missing
words or sentences to make clear that which is indefinite, or to
supply that which is not there. 25 We decline Anders’ request to
read words into the statute.
Mainly, however, Anders invites us to reweigh credibility.
He asks us to second-guess the trier of fact. Viewed in the light
most favorable to the prosecution, the evidence shows that
the first time that Anders sexually penetrated K.G., she was a
young teenager under his tutelage. K.G. sought treatment for
20
See “Deception,” Oxford English Dictionary Online, https://www.oed.
com/view/Entry/48134 (last visited July 7, 2022).
21
See “Deceive,” Oxford English Dictionary Online, https://www.oed.com/
view/Entry/48096 (last visited July 7, 2022).
22
Brief for appellant at 18.
23
Id.
24
See id.
25
State v. Johnson, 310 Neb. 527, 967 N.W.2d 242 (2021).
- 977 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958pain she was suffering from training, and Anders had her lie
down on a chiropractic bed at his gym. Anders then told K.G.
that he needed to sexually penetrate her with his fingers to
“adjust” her pelvis. Anders was 35 years her senior.
Anders occupied a position of trust, power, and authority
over K.G. Could a reasonable fact finder conclude that Anders
used that trust, power, and authority to cause K.G. to believe in
something false, specifically, the nature and purpose of his act
in penetrating her? In light of the evidence viewed most favor-
ably to the prosecution, the question answers itself.
Moreover, Anders used deception for years to obtain K.G.’s
consent and escalate the nature of the sexual penetration. Any
time that K.G. protested being sexually penetrated, Anders
deceptively stated that it was necessary for her “recovery”
from her training. Then, K.G. would consent.
The court did not err in convicting Anders of first degree
sexual assault. There was sufficient evidence to support Anders’
conviction through the use of deception.
b. Coercion
[13] Because we found that the evidence was sufficient to
prove that Anders sexually penetrated K.G. through decep-
tion, we need not address this argument. Where there is suf-
ficient evidence to support a conviction under one theory
of guilt, an appellate court need not consider whether the
evidence was sufficient to support the alternative theory or
theories of guilt. 26
2. Ineffective Assistance of Counsel
(a) Standard of Review
[14,15] When a defendant’s trial counsel is different from
his or her counsel on direct appeal, the defendant must raise
on direct appeal any issue of trial counsel’s ineffective per­
formance which is known to the defendant or is apparent from
26
See State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).
- 978 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958the record; otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. 27 The fact that an inef-
fective assistance of counsel claim is raised on direct appeal
does not necessarily mean that it can be resolved. The deter-
mining factor is whether the record is sufficient to adequately
review the question. 28
[16-19] Generally, to prevail on a claim of ineffective assist­
ance of counsel under Strickland v. Washington, 29 the defend­ant
must show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense. 30 To show that counsel’s performance
was deficient, a defendant must show that counsel’s perform­
ance did not equal that of a lawyer with ordinary training and
skill in criminal law. 31 To show prejudice, the defendant must
demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have
been different. A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome. 32 In determining
whether trial counsel’s performance was deficient, there is a
strong presumption that counsel acted reasonably. 33
[20,21] In proceedings where the Nebraska Evidence
Rules apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. 34 Where the Nebraska Evidence Rules commit the
evidentiary question at issue to the discretion of the trial court,
27
State v. Mrza, supra note 3.
28
Id.29
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
30
State v. Mrza, supra note 3.
31
Id.32
Id.33
Id.34
State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
- 979 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958an appellate court reviews the admissibility of evidence for an
abuse of discretion. 35
[22] Whether cumulative error deprived a criminal defendant
of his or her Sixth Amendment right to a trial by an impartial
jury presents a question of law to be reviewed de novo. 36
(b) Discussion
[23] We must address two preliminary matters. First, we
emphasize that we restrict our analysis to only those errors
that are assigned and specifically alleged. An alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error to be considered by
an appellate court. 37 Further, assignments of error on direct
appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate
court will not scour the remainder of the brief in search of
such specificity. 38
[24] Anders does not limit his arguments regarding inef-
fective assistance of counsel to his assigned errors. Some of
Anders’ errors also lack the specificity we demand on direct
appeal. We acknowledge that Anders filed his brief pro se.
But a pro se party is held to the same standards as one who
is represented by counsel. 39 Therefore, we only consider those
arguments that are specifically raised in his assignments
of error.
Additionally, while Anders’ appellate counsel was different
from his trial counsel, he does not specify in his assignments of
error which trial counsel was ineffective. Technically, Anders’
initial counsel, primary counsel, and postverdict counsel were
all trial counsel.
35
Id.36
State v. Figures, supra note 5.
37
State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021).
38
State v. Mrza, supra note 3.
39
State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
- 980 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958Despite Anders’ generality, we will consider his assignments
of ineffective assistance of counsel, because we infer from the
specific allegations of deficient performance that he is refer-
ring to his primary counsel. Anders’ assignments of ineffective
assistance of counsel discuss only pretrial and trial matters
during which he was represented by primary counsel. For the
remainder of our analysis, we will refer to Anders’ primary
counsel as “trial counsel.”
(i) Expert Testimony Regarding Coercion
Anders assigns that his trial counsel was ineffective by fail-
ing to “insist upon expert testimony as to psychological coer-
cion.” We read this assignment of error as recasting Anders’
sufficiency of the evidence argument regarding psychological
coercion into an effective assistance of counsel claim.
Anders’ assignment lacks merit, because his trial coun-
sel objected to the sufficiency of the evidence by moving to
dismiss the charge against Anders after the State completed
its presentation of evidence. Further, we found the evidence
sufficient to convict Anders—albeit under a different theory
of guilt. Therefore, Anders’ trial counsel was not deficient for
failing to “insist” on expert testimony regarding psychologi-
cal coercion.
(ii) Deception
Anders assigns that his trial counsel was ineffective by
“[f]ailing to argue [sic] reliance upon deception as to the nature
or purpose of a sexual act must be objectively reasonable.”
For almost identical reasons as the previous assignment, we
find Anders’ assignment lacks merit. Anders’ trial counsel did
object, and we have found sufficient evidence supporting the
theory of deception.
(iii) Hearsay
Anders assigns that he received ineffective assistance of
counsel, because his trial counsel did not object to “inadmis-
sible single, double, and triple hearsay.” Anders’ assignment of
- 981 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958error does not allege what specific testimony his trial counsel
should have objected to as inadmissible hearsay. This court
shall not scour Anders’ brief to rectify his lack of specificity.
Therefore, we will not address this claim of ineffective assist­
ance of counsel.
(iv) M.C.
Anders assigns that his trial counsel was ineffective by fail-
ing to object to M.C.’s testimony at trial for being “an alleg-
edly prior bad act that was dissimilar, did not constitute a crime
of sexual assault under [§] 27-413 . . . , and was unduly preju-
dicial under [§] 27-403.” Although Anders cites to Neb. Rev.
Stat. § 27-413 (Reissue 2016), that section provides a defini-
tion pertinent to § 27-414—the section authorizing evidence of
similar crimes in sexual assault cases. We understand Anders’
argument to rely on the latter section.
Pursuant to § 27-414, evidence of the accused’s prior com-
mission of another offense of sexual assault is admissible if
there is clear and convincing evidence that the accused com-
mitted the other offense. 40 Section 27-414 requires a hearing
outside the presence of the jury before the court admits such
evidence. 41 Subsection (3) of the statute also mandates:
At the hearing, the rules of evidence shall apply and the
court shall apply a section 27-403 balancing and admit
the evidence unless the risk of prejudice substantially out-
weighs the probative value of the evidence. In assessing
the balancing, the court may consider any relevant factor
such as (a) the probability that the other offense occurred,
(b) the proximity in time and intervening circumstances
of the other offenses, and (c) the similarity of the other
acts to the crime charged. 42
40
See State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
41
See id.42
See § 27-414(3).
- 982 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958At the § 27-414 hearing, M.C. testified that Anders deceived
her, ran his fingers up her thigh to her pelvic area, and “swirled
his hands all over [her] breasts.” These actions constituted third
degree sexual assault. 43
The court issued a written order, overruling Anders’ objec-
tion and allowing M.C. to testify at trial. The court con-
ducted a § 27-403 balancing test and considered the factors in
§ 27-414(3). The court found that there was clear and convinc-
ing evidence “the incident [M.C.] testified about occurred,”
noted that it occurred during the same period the State alleged
that Anders sexually assaulted K.G., and noted that “both [M.C.
and K.G.] allege that [Anders] told them that he would need to
penetrate their vagina in order to properly adjust them.”
Anders’ trial counsel was not ineffective for failing to renew
his objection to M.C.’s testimony under § 27-414, because it
would have been futile to do so. The court did not abuse its
discretion in allowing M.C. to testify at trial, and the record
does not support the notion that the court would have reversed
its ruling.
(v) Ex-Business Partner
Anders assigns that he received ineffective assistance of
counsel because his trial counsel “[f]ail[ed] to impeach [his
ex-business partner] about his previous felony convictions,
to object to his testimony as improper evidence of prior bad
acts, to object to defense witnesses being questioned about
[his] testimony, and the financial windfall [he] would derive
from [Anders’] being convicted.” This assignment features four
claims. We will address them in turn.
a. Felony Convictions
Anders argues that his trial counsel was ineffective because
he did not impeach his ex-business partner for having previous
43
See, § 27-414(1); § 28-318(5); Neb. Rev. Stat. § 28-320(1) (Reissue
2016).
- 983 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958felony convictions. The record is sufficient to address this
claim, but Anders’ argument lacks merit.
Anders’ trial counsel questioned Anders’ ex-business part-
ner and revealed that he was “arrested for a crime and actu-
ally incarcerated between 2011 and 2015” and was, at one
point, on “work release” when working for Anders. Therefore,
Anders’ trial counsel was not deficient regarding his “[f]ailure
to impeach [his ex-business partner].”
b. Prior Bad Act
Anders also argues his trial counsel should have objected
to his ex-business partner’s testimony that he saw Anders kiss
K.G., because it was inadmissible evidence of a prior bad
act under § 27-414. The record is insufficient to address this
assignment.
[25-27] The decision whether or not to object has long
been held to be part of trial strategy. 44 When reviewing claims
of alleged ineffective assistance of counsel, trial counsel is
afforded due deference to formulate trial strategy and tactics. 45
There is a strong presumption that counsel acted reasonably,
and an appellate court will not second-guess reasonable strate-
gic decisions. 46
The record is devoid of evidence that would allow us to
determine whether Anders’ trial counsel chose to not object
to Anders’ ex-business partner’s testimony regarding the kiss
as part of a trial strategy. Therefore, the record is insufficient
to adequately review this claim of ineffective assistance of
counsel.
c. Defense Witnesses
Anders presents no argument to support his claim that his
trial counsel was ineffective for failing to object to defense
44
See State v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015).
45
See id.46
Id.- 984 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958witnesses’ being questioned about the ex-business partner’s
testimony. Therefore, we will not consider this claim of inef-
fective assistance of counsel.
d. Financial Motives
Finally, Anders argues that his trial counsel was ineffective
for questioning his ex-business partner regarding any financial
motives for testifying. Anders attempts to support this argu-
ment by reference to materials entirely outside the record.
While Anders sufficiently alleges this portion of his assignment
of error, the record is insufficient for this court to address this
claim of ineffective assistance of counsel.
(vi) Text Messages
Anders assigns that his trial counsel was ineffective for
“[f]ailing to object to inadmissible text messages from
[Anders’] and [K.G.’s] cell phones.” Anders does not specify
in what manner the text messages were inadmissible in his
assignment of error. Therefore, this claim of ineffective assist­
ance of counsel lacks the specificity required for this court to
address it.
(vii) K.G.’s Statements
Anders assigns that his trial counsel was ineffective for
“[f]ailing to cross-examine [K.G.] about the inconsistent time
periods of [his] alleged misconduct between her trial testimony
and previous sworn statements.” The previous sworn state-
ments that Anders cites are K.G.’s deposition for his trial and
an affidavit she attached to her petition to seek a protection
order against him. Anders claims “[K.G.] was clear no sexual
penetration of her by [Anders] occurred before her 16th birth-
day, and that all incidents occurred inside [his] gym.” 47
Anders’ trial counsel was not deficient for not cross-
examining K.G. about her statements in her deposition because
47
Brief for appellant at 34.
- 985 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958they were not inconsistent with her trial testimony. In her
deposition, K.G. testified, “That adjustment where he stuck
his fingers into my vaginal canal and adjusted my pelvis . . .
occurred when I was fifteen . . . I remember the first time that
had happened my mom came and picked me up.” K.G. also
testified that Anders and K.G. had “sexual relations” outside
his gym—during their travels to weightlifting competitions.
However, the record is insufficient for this court to assess
Anders’ claim that K.G. made inconsistent statements in her
protection order affidavit, because the affidavit is not in the
record. Therefore, this court cannot address this portion of
Anders’ claim of ineffective assistance of counsel.
(viii) K.G.’s Mental State
Anders assigns his trial counsel was ineffective for “[f]ailing
to seek the counseling records of [K.G.’s therapist]” under State
v. Trammell 48 “to cross examine [him] thereon, and to retain a
defense expert to determine and testify if [K.G.] was suffer-
ing from false memory syndrome, and whether or not [K.G.’s]
reliance upon any deception by [Anders] was reasonable and/
or a result of psychological coercion.” Anders argues that his
trial counsel’s failure to obtain K.G.’s counseling records pre-
vented him from being able to sufficiently cross-examine her
therapist and prove that her testimony was unreliable due to a
mental condition.
Because Anders’ trial counsel never filed a motion pur-
suant to Trammell and presented evidence under the estab-
lished procedure, the record is insufficient for this court to
assess whether his trial counsel was ineffective for failing to
seek K.G’s counseling records. 49 Consequently, we also can-
not address Anders’ claim that his trial counsel was ineffective
for failing to cross-examine K.G.’s therapist and present expert
testimony regarding K.G.’s mental state, because these claims
48
See State v. Trammell, supra note 4.
49
See id.- 986 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958are conditioned upon his trial counsel’s obtaining her counsel-
ing records. This court cannot address these claims based upon
the record before us.
(ix) Cumulative Error
[28] Anders concludes his assignments of error regarding
ineffective assistance of counsel by arguing that the cumulative
effect of his trial counsel’s deficient performance resulted in
cumulative error. We have recognized the doctrine of cumu-
lative error in the context of a criminal jury trial. 50 Although
one or more trial errors might not, standing alone, constitute
prejudicial error, their cumulative effect may be to deprive the
defendant of his or her constitutional right to a public trial by
an impartial jury. 51
[29] However, we note that in a case tried to the court with-
out a jury, there is a presumption that the trial court, in reach-
ing its decision, considered only evidence that is competent
and relevant, and this court will not overturn such a decision
where there is sufficient material, competent, and relevant evi-
dence to sustain the judgment. 52 This presumption is a principle
of appellate procedure which requires an appellant to show that
the trial court actually used erroneously admitted evidence for
the judgment or decision against the appellant. 53
The doctrine of cumulative error does not support Anders’
argument. The majority of Anders’ claims of ineffective assist­
ance of counsel are without merit or not sufficiently alleged.
The remaining assignments of error, for which the record is
insufficient to address in this direct appeal, cannot form the
basis for a claim of cumulative error. 54
50
See State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).
51
See State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
52
See State v. Tomes, 218 Neb. 148, 352 N.W.2d 608 (1984).
53
See State v. Lomack, 239 Neb. 368, 476 N.W.2d 237 (1991).
54
See State v. Stelly, supra note 50.
- 987 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 9583. Sentence
Finally, Anders assigns that his sentence was excessive and
unconstitutional. Anders’ assignment lacks merit.
(a) Standard of Review
[30] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. 55 We have already recited the definition of
abuse of discretion.
(b) Discussion
(i) Excessive
Anders asserts that his sentence of 25 to 30 years’ imprison-
ment was clearly excessive. Anders argues the court improp-
erly applied the well-established factors and applicable legal
principles. We disagree.
Anders’ sentence was within the statutory limits, and the
court considered the well-established factors and applicable
legal principles in its sentencing decision. As stated by the
court, Anders used his “position of authority, command, influ-
ence” to “manipulate[] and isolate[]” a teenager into having
sexual intercourse with someone 35 years her senior. Anders
also showed no remorse for his actions.
The court’s decision was not untenable, unreasonable, or
clearly against justice or conscience, reason, and evidence.
Therefore, Anders’ sentence was not excessive.
(ii) Unconstitutional
Anders also challenges that his sentence is unconstitutional
under art. I, § 9, of the Nebraska Constitution and the Eighth
Amendment to the U.S. Constitution, which prohibit the inflic-
tion of cruel and unusual punishment. Anders argues that his
sentence must be proportionate to others sentenced for similar
crimes. Again, we disagree.
55
State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
- 988 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ANDERS
Cite as 311 Neb. 958[31] We have previously considered and rejected this broad
proportionality claim. 56 The constitutional protection against
cruel and unusual punishment does not require strict propor-
tionality between crime and sentence, but, rather, forbids only
extreme sentences that are grossly disproportionate to the
crime. 57 The sentencing court was under no obligation to con-
duct a comparative analysis of similar cases—an inquiry that
would be entirely impractical for trial courts to undertake. 58
We find that Anders’ sentence did not constitute cruel and
unusual punishment. Anders’ sentence properly reflected the
seriousness of the crime committed and was proportionate for
the offense and the offender.
VI. CONCLUSION
There was sufficient evidence to support Anders’ conviction
for first degree sexual assault. Further, Anders did not receive
an excessive sentence. Anders’ ineffective assistance of counsel
claims either lack merit or cannot be addressed on this record.
We affirm Anders’ conviction and sentence.
Affirmed.
56
See State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).
57
See id.58
See State v. Morton, 310 Neb. 355, 966 N.W.2d 57 (2021).