assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance, and appellate court will not scour remainder of brief in search of such specificity
How later courts described this case
- assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance, and appellate court will not scour remainder of brief in search of such specificity
Written by the judges who cited it.
The opinion
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/10/2025 09:09 AM CDT
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. HAGENS
Cite as 320 Neb. 65
State of Nebraska, appellee, v.
Ivell M. Hagens, appellant.
___ N.W.3d ___
Filed October 10, 2025. No. S-24-612.
1. Convictions: Appeal and Error. In an appeal of a criminal convic-
tion, an appellate court reviews the evidence in a light most favorable
to the prosecution.
2. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for sufficiency of the evidence, whether the evidence is
direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact. 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.
3. Rules of Evidence: Hearsay: Appeal and Error. Hearsay is not
admissible except as provided by the Nebraska Evidence Rules. Apart
from rulings under the residual hearsay exception, an appellate court
reviews for clear error the factual findings underpinning a trial court’s
hearsay ruling and reviews de novo the court’s ultimate determination
to admit evidence over a hearsay objection or exclude evidence on
hearsay grounds.
4. Appeal and Error. In a de novo review, an appellate court reaches a
conclusion independent of the trial court.
5. Hearsay: Words and Phrases. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
6. Evidence: Words and Phrases. Cumulative evidence means evi-
dence tending to prove the same point to which other evidence has
been offered.
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7. Trial: Convictions: Evidence: Appeal and Error. Where the evidence
is cumulative and there is other competent evidence to support the con-
viction, the improper admission or exclusion of evidence is harmless
beyond a reasonable doubt.
8. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not needed to adjudicate the controversy before it.
9. ____. Plain error may be found on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record, prejudi-
cially affects a litigant’s substantial right and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of the judicial
process. Generally, an appellate court will find plain error only when a
miscarriage of justice would otherwise occur.
10. Motions for Mistrial: Prosecuting Attorneys: Appeal and Error. A
party who fails to make a timely motion for mistrial based on prosecuto-
rial misconduct forfeits the right to assert on appeal that the court erred
in not declaring a mistrial due to such prosecutorial misconduct.
11. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant
has not preserved a claim of prosecutorial misconduct for direct appeal,
an appellate court will review the record only for plain error.
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. 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.
14. Sentences. The appropriateness of a sentence is necessarily a subjec-
tive judgment that includes the sentencing judge’s observations of the
defendant’s demeanor and attitude and all the facts and circumstances
surrounding the defendant’s life.
15. Sentences: Appeal and Error. It is not the proper function of an appel-
late court to conduct a de novo review of the record to determine what
sentence it would impose.
16. 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.
17. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
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STATE V. HAGENS
Cite as 320 Neb. 65
18. ____: ____. 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 deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
19. 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.
20. ____: ____. 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.
21. ____: ____. To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding
would have been different.
22. Effectiveness of Counsel: Words and Phrases. A reasonable probabil-
ity of prejudice from ineffective assistance of counsel is a probability
sufficient to undermine confidence in the outcome.
23. 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.
24. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough par-
ticularity for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
25. 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 determin-
ing factor is whether the record is sufficient to adequately review
the issue.
26. ____: ____: ____. The record on appeal is sufficient to effectively
review the question of ineffective assistance if it establishes either that
trial counsel’s performance was not deficient, that the appellant will not
be able to establish prejudice, or that trial counsel’s actions could not be
justified as a part of any plausible trial strategy.
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STATE V. HAGENS
Cite as 320 Neb. 65
27. Effectiveness of Counsel: Appeal and Error. Assignments of error
on direct appeal regarding ineffective assistance of trial coun-
sel must specifically allege deficient performance, and an appel-
late court will not scour the remainder of the brief in search of
such specificity.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Jason E. Troia, of Jason Troia Law, for appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Bergevin, JJ.
Cassel, J.
I. INTRODUCTION
In this direct appeal from criminal convictions and sen-
tences, Ivell M. Hagens challenges the sufficiency of the
evidence, the overruling of his hearsay objections, alleged
prosecutorial misconduct, the excessiveness of his sentences,
and whether his trial counsel provided effective assistance.
We find the record insufficient to address two claims of
ineffective assistance of trial counsel. Otherwise, seeing no
merit to Hagens’ assignments of error, we affirm the district
court’s judgment.
II. BACKGROUND
The State’s amended information charged Hagens with first
degree sexual assault of a child, a Class IB felony 1; incest
with a person under age 18, a Class IIA felony 2; and tamper-
ing with physical evidence. The victim was Hagens’ daughter,
J.C. The State alleged that the charges arose from an incident
1
See Neb. Rev. Stat. § 28-319.01(1)(a) and (2) (Reissue 2016).
2
See Neb. Rev. Stat. § 28-703 (Reissue 2016).
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Cite as 320 Neb. 65
on April 27, 2023. Because Hagens was born in 1984 and J.C.
was born in 2016, at the time of the crimes, Hagens was at
least 19 years old and J.C. was under the age of 12. 3
Hagens pled not guilty, and the case proceeded to a jury
trial. We recite the evidence in the light most favorable to the
State. Because Hagens was acquitted on the charge of tamper-
ing with evidence, we recite only the evidence relevant to the
other charges. Additional background will be provided, as nec-
essary, in the analysis section.
J.C. lived with her mother, Jasmine C., and Jasmine’s
other children. Hagens and his son, I.H., sometimes lived in
Jasmine’s home, and they were there during the days leading
up to the incident.
In the early morning hours on April 27, 2023, Jasmine heard
Hagens’ exiting a bedroom that was used, at that time, by J.C.
and her younger brothers, M.C. and I.H. Hagens walked from
the children’s bedroom into a nearby restroom and closed the
door. At that point, Jasmine went into the children’s bedroom
and observed that J.C. was awake. Jasmine heard Hagens exit
the restroom and go downstairs. Later that day, she asked J.C.
and M.C. why Hagens was in their bedroom. She then asked a
series of questions that led to J.C.’s initial disclosure.
When at trial the prosecutor asked Jasmine what J.C. told her
about what had occurred, defense counsel raised hearsay objec-
tions, which the court overruled. Jasmine testified that J.C.
said that Hagens touched her with “‘[h]is fingers’” and “‘[h]is
mouth.’” Defense counsel requested the court to “admonish[]”
the jury that the testimony could not be considered for its truth,
but the court did not address that request.
Shortly after J.C.’s initial disclosure, Jasmine had a private
conversation with J.C., who was then 6 years old. Jasmine
asked her whether it hurt when Hagens touched her, and she
3
See § 28-319.01(1)(a) (sexual assault of child in first degree where actor
subjects person under 12 years of age to sexual penetration and actor is at
least 19 years of age).
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said that it did. Jasmine asked to “check [J.C.’s] private area”
and observed that she “looked a little red down there.”
Late that same day, Jasmine took J.C. to a hospital. Upon
arriving, Jasmine met with a police officer and told him what
had occurred. The police officer did not speak with J.C., but
she was examined by a physician. Defense counsel objected
when the prosecutor attempted to adduce testimony from both
the police officer and the physician regarding whether J.C.
had been sexually assaulted by Hagens on a separate occasion.
The court sustained the objections before either witness could
answer. Defense counsel did not request a curative instruction
or move for a mistrial.
The next day, Jasmine took J.C. to a child advocacy center.
There, J.C. was examined by a sexual assault nurse and met
with a forensic interviewer. At trial, defense counsel pointed
out inconsistencies in J.C.’s testimony. J.C. remembered tell-
ing the forensic interviewer that “‘[she] th[ought she] was
sleeping” at the time of the incident, “but [her] mom said [she]
was awake.’” At trial, J.C. testified that she was asleep before
Hagens came into the bedroom but that he woke her up by
calling her name.
J.C. further testified that she remembered Hagens “taking
off [her] onesie” and then “touch[ing her] private parts.” She
stated that she was in her bed when this occurred, it was dark
outside, and her brothers were sleeping. When the prosecutor
asked whether Hagens touched her on the outside or the inside
of her body or both, J.C. responded, “Both.” She indicated that
the “tips of his finger[s]” were “[m]oving.” J.C. demonstrated
the movement for the jury by moving two of her fingers “back
and forth.” At trial, J.C. stated that she did not know whether
Hagens used other parts of his body to touch her.
At the child advocacy center, a detective with the police
department’s child victim sexual assault unit met with Jasmine
as part of his investigation. During the detective’s cross-
examination at trial, defense counsel asked about information
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STATE V. HAGENS
Cite as 320 Neb. 65
that was not included in his written report regarding that
investigation. On redirect, the prosecutor asked questions
regarding what the report did include, and defense counsel
raised hearsay objections. The court overruled the objec-
tions. The detective testified regarding specific statements
that Jasmine made to him and specific statements that J.C.
made to Jasmine and to the forensic interviewer. Defense
counsel did not request the court to instruct the jury that the
out-of-court statements were not admitted for their truth.
After the State rested its case, the defense adduced expert
testimony regarding the applicable protocol and guidelines
for interviewing child witnesses. The expert did not offer an
opinion regarding whether the protocol and guidelines were
followed in this case. Hagens did not call other witnesses and
waived his right to testify.
On rebuttal, the State adduced the testimony of the child
advocacy center’s senior director of children’s services. She
represented that in the course of her career, she had done more
than 8,000 forensic interviews. After completing a peer review
of J.C.’s interview in this case, she concluded that it was con-
ducted according to protocol.
The jury found Hagens guilty of first degree sexual assault
of a child and incest; it found him not guilty of tampering
with physical evidence. The court accepted the verdict and
convicted Hagens accordingly. It ordered a presentence inves-
tigation and appointed different counsel to represent Hagens
at sentencing.
Following a hearing, the court sentenced Hagens to 40 to 50
years’ imprisonment for the sexual assault conviction and to a
consecutive term of 15 to 20 years’ imprisonment for the incest
conviction. It gave him credit for 451 days’ time served on the
sexual assault conviction.
Through his sentencing counsel, Hagens filed a timely
appeal. We moved the appeal to our docket. 4
4
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).
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STATE V. HAGENS
Cite as 320 Neb. 65
III. ASSIGNMENTS OF ERROR
Hagens assigns 11 errors, which we consolidate, restate,
and reorder for ease of discussion. He assigns that (1) there
was insufficient evidence to support his convictions, (2) the
district court erred in overruling his hearsay objections to (a)
Jasmine’s testimony regarding J.C.’s statements and (b) the
detective’s testimony regarding statements made by J.C. and
Jasmine, (3) the State committed prosecutorial misconduct by
asking multiple witnesses questions pertaining to a separate
incident of sexual assault, and (4) the district court imposed
excessive sentences.
Hagens further assigns that he received ineffective assist
ance of counsel, when his trial counsel (1) waived the above
hearsay objections, to any extent, by failing to object prop-
erly, request an appropriate instruction, or move for a mis-
trial; (2) failed to subpoena video footage from the relevant
supplier in a timely fashion; (3) “failed to call his witnesses”;
(4) “advised him not to testify”; and (5) failed to move for
a mistrial and request a curative instruction in response to
the prosecutor’s questions regarding a separate incident of
sexual assault and when Jasmine volunteered testimony on
the same.
IV. STANDARD OF REVIEW
[1] In an appeal of a criminal conviction, an appellate court
reviews the evidence in a light most favorable to the prosecu-
tion. 5 Additional standards are set forth in our analysis.
V. ANALYSIS
1. Evidence of Sexual Penetration
Was Sufficient
Focusing on one element, Hagens asserts that the evidence
presented at trial was insufficient to support his convictions for
first degree sexual assault of a child and incest.
5
State v. Dat, 318 Neb. 311, 15 N.W.3d 410 (2025).
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(a) Standard of Review
[2] In reviewing a criminal conviction for sufficiency of
the evidence, whether the evidence is direct, circumstantial,
or a combination thereof, the standard is the same: An appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact. The relevant question is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt. 6
(b) Application
Hagens contends that the State failed to meet its burden to
prove he subjected J.C. to sexual penetration.
A statutory definition controls. Under the Nebraska Criminal
Code, 7 “[s]exual penetration” is defined as
sexual intercourse in its ordinary meaning, cunnilingus,
fellatio, anal intercourse, 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 enforce-
ment purposes. Sexual penetration shall not require emis-
sion of semen. 8
This definition applies to both of Hagens’ crimes. 9
We conclude that the evidence, when viewed in the
light most favorable to the State, was sufficient to support
Hagens’ convictions. J.C.’s testimony was direct evidence
that Hagens subjected her to sexual penetration. She testified
6
State v. Perry, 318 Neb. 613, 17 N.W.3d 504 (2025).
7
See Neb. Rev. Stat. § 28-101 (Cum. Supp. 2024) (identifying sections of
Nebraska Criminal Code).
8
Neb. Rev. Stat. § 28-318(6) (Cum. Supp. 2024).
9
See §§ 28-318, 28-319.01, and 28-703(3)(a).
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that after Hagens removed her pajamas, he “touched [her]
private parts.” When asked whether Hagens touched her on
the inside of her body, she responded affirmatively.
J.C.’s testimony was corroborated by circumstantial evi-
dence. Among other things, Jasmine testified that she heard
Hagens exiting the children’s bedroom at around 3 or 4 a.m.;
that shortly thereafter, she observed J.C. was awake; and
that later that day, J.C. disclosed the assault to her. Jasmine
then examined J.C. and observed that she “looked a little red
down there.”
We read Hagens’ argument to attack J.C.’s credibility as a
witness and the weight of the State’s other evidence. Hagens
largely focuses on the “dynamic” 10 between J.C. and Jasmine.
He claims that the disclosure was made in an “overly sug-
gestive, coercive and threatening manner.” 11 Essentially, he
argues that J.C. was “so impressionable” 12 that she adopted
a version of events suggested to her by Jasmine. Further,
Hagens asserts that Jasmine’s testimony was “unpersuasive” 13
and that law enforcement’s investigation “failed to establish
any probative evidence.” 14
To the extent that Hagens asks this court to pass on J.C.’s
credibility and to reweigh the evidence, it is not within our
purview to do so. Such matters were for the finder of fact. 15
2. Because Hearsay Was Cumulative,
Admission Was Harmless
Hagens next argues that the court erred in overruling his
hearsay objections.
10
Brief for appellant at 28.
11
Id.
12
Id.
13
Id. at 29.
14
Id.
15
See State v. Perry, supra note 6.
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(a) Standard of Review
[3,4] Hearsay is not admissible except as provided by the
Nebraska Evidence Rules. Apart from rulings under the resid-
ual hearsay exception, an appellate court reviews for clear
error the factual findings underpinning a trial court’s hearsay
ruling and reviews de novo the court’s ultimate determination
to admit evidence over a hearsay objection or exclude evidence
on hearsay grounds. 16 In a de novo review, an appellate court
reaches a conclusion independent of the trial court. 17
(b) Application
[5] For purposes of resolving this assignment, we assume,
without deciding, that the challenged statements were hearsay.
Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. 18
We first consider the objections to Jasmine’s testimony. As
noted above, defense counsel raised hearsay objections when
the prosecutor asked what J.C. told Jasmine about what had
occurred. After the court overruled the objections, Jasmine
testified that J.C. said that Hagens touched her with “‘[h]is fin-
gers’” and “‘[h]is mouth.’” Although defense counsel requested
that the jury be “admonished” that the testimony could not be
considered for the truth of the matter asserted, the court implic-
itly denied that request. Hagens asserts that the court erred both
in admitting the evidence and in failing to provide a limiting
instruction. We see no reversible error.
[6] The record shows that the admitted testimony was
cumulative. Cumulative evidence means evidence tending
to prove the same point to which other evidence has been
16
State v. Boswell, 316 Neb. 542, 5 N.W.3d 747 (2024).
17
Id.
18
State v. Sawyer, 319 Neb. 435, 22 N.W.3d 650 (2025). Accord Neb. Evid.
R. 801(3), Neb. Rev. Stat. § 27-801(3) (Cum. Supp. 2024).
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offered. 19 Here, the testimony regarding J.C.’s statements to
Jasmine tended to prove the same point to which J.C.’s
own testimony was offered: that Hagens subjected J.C. to
sexual penetration.
[7] Where the evidence is cumulative and there is other
competent evidence to support the conviction, the improper
admission or exclusion of evidence is harmless beyond a
reasonable doubt. 20 Because we have already determined that
there was other competent evidence to support Hagens’ con-
victions, we conclude that any perceived error in admitting
Jasmine’s testimony was harmless.
We reach a similar conclusion regarding the detective’s
testimony. Hagens argues that this testimony was prejudicial
because it included “[Jasmine’s] version” 21 of a discussion
between Jasmine and J.C., as well as statements made by J.C.
during her interview and to Jasmine. Again, the admitted tes-
timony was cumulative of other evidence. At this point in the
trial, the jury had already heard Jasmine’s testimony regard-
ing her discussions with J.C., the forensic interviewer’s tes-
timony regarding her conversation with J.C., and J.C.’s own
testimony about these events. Having reviewed de novo the
court’s ultimate determination to admit the evidence over
Hagens’ objections, we conclude that because it was cumula-
tive, any perceived error in admitting it was harmless.
[8] The State suggests that this assignment fails on addi-
tional grounds, but we need not address them. An appellate
court is not obligated to engage in an analysis that is not
needed to adjudicate the controversy before it. 22
19
State v. Sawyer, supra note 18.
20
Id.
21
Brief for appellant at 50.
22
State v. Lear, 316 Neb. 14, 2 N.W.3d 632 (2024).
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3. No Plain Error Regarding
Prosecutor’s Questions
Hagens contends that the State committed prosecutorial mis-
conduct based on two allegedly improper questions asked dur-
ing the State’s case in chief. But he acknowledges that his trial
counsel did not move for a mistrial on that basis. This affects
our standard of review.
(a) Standard of Review
If Hagens’ trial counsel had moved for a mistrial and suf-
fered the denial of such motion, we would apply the standard
of review applicable to such a denial. 23 Anticipating this prob-
lem, Hagens urges that we review his claim of prosecutorial
misconduct for plain error.
[9] Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from
the record, prejudicially affects a litigant’s substantial right
and, if uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process. Generally, an
appellate court will find plain error only when a miscarriage of
justice would otherwise occur. 24
[10,11] In our recent cases, “‘we have actually treated
a defendant’s failure to move for a mistrial on the basis of
alleged prosecutorial misconduct more like a forfeiture by
conducting a plain error review in such circumstances.’” 25
Consistent with that language, we now articulate this prin-
ciple: A party who fails to make a timely motion for mistrial
based on prosecutorial misconduct forfeits the right to assert
on appeal that the court erred in not declaring a mistrial
23
See State v. Parks, 319 Neb. 773, ___ N.W.3d ___ (2025) (decision
whether to grant motion for mistrial is within trial court’s discretion and
will not be disturbed on appeal in absence of abuse of discretion).
24
State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023).
25
State v. Barnes, 317 Neb. 517, 544, 10 N.W.3d 716, 739 (2024) (quoting
State v. Gleaton, 316 Neb. 114, 3 N.W.3d 334 (2024)).
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due to such prosecutorial misconduct. 26 When a defendant
has not preserved a claim of prosecutorial misconduct for
direct appeal, an appellate court will review the record only
for plain error. 27 To the extent that this court’s prior opin-
ions 28 and the lower court opinions relying on them 29 fail to
use the language of forfeiture rather than waiver, we disap-
prove them.
With that refinement, we settle the standard of review
applicable to this assignment. We review the record only for
plain error.
(b) Application
As set forth in the background, the prosecutor attempted to
adduce testimony from two witnesses regarding whether J.C.
had been sexually assaulted by Hagens on a separate occasion.
The prosecutor’s questions form the basis for Hagens’ claim of
prosecutorial misconduct.
26
See State v. Gleaton, supra note 25.
27
State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023).
28
See, State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020); State v. Mrza,
302 Neb. 931, 926 N.W.2d 79 (2019); State v. Cotton, 299 Neb. 650, 910
N.W.2d 102 (2018), disapproved on other grounds, State v. Avina-Murillo,
301 Neb. 185, 917 N.W.2d 865 (2018); State v. Smith, 292 Neb. 434,
873 N.W.2d 169 (2016); State v. Custer, 292 Neb. 88, 871 N.W.2d 243
(2015); State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015); State
v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on other
grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010); State v.
Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v. Lotter, 255 Neb.
456, 586 N.W.2d 591 (1998), modified on denial of rehearing 255 Neb.
889, 587 N.W.2d 673 (1999); State v. Wilson, 252 Neb. 637, 564 N.W.2d
241 (1997).
29
See, In re Interest of Quiotis C., 32 Neb. App. 932, 9 N.W.3d 224 (2024);
State v. Howard, 26 Neb. App. 628, 921 N.W.2d 869 (2018); State v. Kays,
21 Neb. App. 376, 838 N.W.2d 366 (2013), disapproved on other grounds,
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014); State v. Balvin, 18
Neb. App. 690, 791 N.W.2d 352 (2010); State v. SapaNajin, 11 Neb. App.
190, 646 N.W.2d 668 (2002).
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When considering a claim of prosecutorial misconduct, an
appellate court first considers whether the prosecutor’s acts
constitute misconduct. 30 If the appellate court concludes that
a prosecutor’s acts were misconduct, the court next considers
whether the misconduct prejudiced the defendant’s right to a
fair trial. 31 Prosecutorial misconduct prejudices a defendant’s
right to a fair trial when the misconduct so infects the trial that
the resulting conviction violates due process. 32
Hagens argues that the prosecutor’s questions were
improper, because they attempted to introduce evidence that
first needed to be evaluated outside the presence of the jury.
In support, he points to two rules of evidence: Neb. Evid.
R. 404, Neb. Rev. Stat. § 27-404 (Cum. Supp. 2024), and
Neb. Evid. R. 414, Neb. Rev. Stat. § 27-414 (Reissue 2016).
These rules, respectively, set forth requirements pertaining to
evidence of “other crimes, wrongs, or acts” 33 of the accused
and, in criminal cases involving charges of sexual assault,
evidence of the “accused’s commission of another offense or
offenses of sexual assault.” 34 Under both rules, the State has
the burden to prove by clear and convincing evidence, out-
side the presence of any jury, that the accused committed
such crime, wrong, act, or other sexual assault offense before
such evidence is admissible. 35
The record supports Hagens’ argument that the statutory
procedures were not employed. Had the prosecutor done so
and addressed the evidence in a hearing outside the presence of
the jury, the series of events could have been avoided.
But here, the question is whether there is plain error on the
record. We see none.
30
State v. Barnes, supra note 25.
31
Id.
32
Id.
33
§ 27-404(2) and (3).
34
§ 27-414(1) and (3).
35
See §§ 27-404(3) and 27-414(1) and (3).
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We need not decide whether the prosecutor’s questions
constituted misconduct, because even if they did, there was no
miscarriage of justice on this record. Defense counsel timely
objected to the two questions. The court sustained both objec-
tions before the witnesses could answer. The jury instructions
tendered at the close of trial stated that counsel’s questions
are not evidence. They further stated that the jury must
not speculate as to possible answers to questions the court
did not permit to be answered. Additionally, the instructions
directed the jury not to interpret any of the court’s rulings as
reflecting an opinion as to how the case should be decided.
It is presumed that a jury followed the instructions given in
arriving at its verdict, and unless it affirmatively appears to
the contrary, it cannot be said that such instructions were dis-
regarded. 36 In these circumstances, the two questions did not
rise to the level of plain error.
We express no opinion whether the outcome might have
been different had proper motions been made to preserve
the issue.
4. No Abuse of Discretion in Sentences
Hagens contends that the district court abused its discretion
in imposing 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. 37 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 con-
science, reason, and evidence. 38
36
State v. Lenhart, 317 Neb. 787, 11 N.W.3d 661 (2024).
37
State v. Rezac, 318 Neb. 352, 15 N.W.3d 705 (2025).
38
State v. Sutton, 319 Neb. 581, 24 N.W.3d 43 (2025).
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(b) Application
Hagens does not contest that his sentences were within the
statutory limits. Instead, he argues that the court abused its
discretion by “placing him in the category of warranting an
upper-end sentence.” 39 He asserts that he was “sentenced the
same” as individuals convicted of committing similar criminal
acts “on a biweekly or more basis for years with various forms
of penetration.” 40 Hagens also argues, in essence, that the court
placed too much weight on his prior criminal history and not
enough weight on his favorable character references.
[14] Because the sentences imposed were within the statu-
tory limits, we must determine whether the court abused its
discretion in considering and applying the relevant factors,
as well as any applicable legal principles in determining the
sentence to be imposed. 41 The appropriateness of a sentence
is necessarily a subjective judgment that includes the sentenc-
ing judge’s observations of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the
defendant’s life. 42
Contrary to Hagens’ argument, the appellate record shows
that the court based his sentences on the facts and circum-
stances surrounding his life and not on its placing him
into a particular “category” of offenders. Nothing in the
record shows that the court failed to consider the evidence
offered by Hagens or that it made its decision based on
improper considerations.
In pronouncing the sentences, the court emphasized there
were “many factors” to consider. It stated that it had consid-
ered the evidence from trial and the presentence investiga-
tion report, which revealed, among other things, that Hagens
39
Brief for appellant at 32.
40
Id. at 30.
41
See State v. Sutton, supra note 38.
42
State v. Lara, 315 Neb. 856, 2 N.W.3d 1 (2024).
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had an extensive criminal history. It remarked that the jury
had found Hagens guilty of a “fairly egregious offense here.”
We cannot conclude that the court made its decision based
upon reasons that were untenable or unreasonable or that its
action was clearly against justice or conscience, reason, and
evidence. The court did not abuse its discretion.
[15] Although Hagens seemingly asks us to reweigh the
relevant factors, it is not the proper function of an appellate
court to conduct a de novo review of the record to determine
what sentence it would impose. 43 Moreover, we are mindful
that “the district court was under no obligation to conduct a
comparative analysis of ‘similar’ cases—an inquiry that would
be entirely impractical for trial courts to undertake.” 44 This
assignment lacks merit.
5. Ineffective Assistance
of Trial Counsel
[16] Hagens argues that he received ineffective assistance
of trial counsel in multiple respects. 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 coun-
sel’s ineffective performance which is known to the defendant
or is apparent from the record; otherwise, the issue will be pro-
cedurally barred in a subsequent postconviction proceeding. 45
Here, Hagens’ appellate counsel was required to raise such
claims regarding his predecessor counsel below.
Before addressing Hagens’ specific claims, we set forth the
applicable legal principles. As discussed below, two of his
claims fail because the record on appeal conclusively shows
that Hagens will not be able to establish prejudice. One fails
because it is insufficiently assigned. The record is insufficient
to resolve the remaining claims.
43
Id.
44
State v. Morton, 310 Neb. 355, 372, 966 N.W.2d 57, 70 (2021).
45
State v. Parks, supra note 23.
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(a) Standard of Review
[17,18] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question
of law. 46 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. 47
(b) Legal Principles
[19-22] Generally, to prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 48 the
defendant must show that his or her counsel’s performance
was deficient and that this deficient performance actually
prejudiced the defendant’s defense. 49 To show that counsel’s
performance was deficient, a defendant must show that coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. 50 To show prejudice in a
claim of ineffective assistance of counsel, the defendant must
demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would
have been different. 51 A reasonable probability of prejudice
from ineffective assistance of counsel is a probability suffi-
cient to undermine confidence in the outcome. 52
46
Id.
47
Id.
48
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
49
State v. Parks, supra note 23.
50
Id.
51
Id.
52
Id.
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[23] There is a strong presumption that counsel acted rea-
sonably, and an appellate court will not second-guess reason-
able strategic decisions. 53
[24] An ineffective assistance of counsel claim is raised on
direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make a
determination of whether the claim can be decided upon the
trial record and (2) a district court later reviewing a petition
for postconviction relief to recognize whether the claim was
brought before the appellate court. 54
[25,26] The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean that
it can be resolved. The determining factor is whether the record
is sufficient to adequately review the issue. 55 The record on
appeal is sufficient to effectively review the question of inef-
fective assistance if it establishes either that trial counsel’s per-
formance was not deficient, that the appellant will not be able
to establish prejudice, or that trial counsel’s actions could not
be justified as a part of any plausible trial strategy. 56
(c) Claims Assigned
(i) Failure to Preserve Hearsay Objections
Hagens claims that trial counsel was ineffective in not pre-
serving the above hearsay objections, to any extent, by failing
to object properly, request an appropriate instruction, or move
for a mistrial. We have already concluded that the admission of
the hearsay evidence was, at most, harmless error. It necessar-
ily follows that Hagens cannot demonstrate a reasonable prob-
ability that but for counsel’s deficient performance, the result
of the proceeding would have been different. In other words,
he cannot show prejudice. This assignment fails.
53
State v. Vazquez, 319 Neb. 192, 21 N.W.3d 615 (2025).
54
State v. Sawyer, supra note 18.
55
State v. Parks, supra note 23.
56
State v. Sawyer, supra note 18.
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(ii) Failure to Timely Subpoena Video Footage
a. Additional Background
We learn from the bill of exceptions that Hagens intended
to offer as evidence video footage from cameras located in
Jasmine’s home at the time of the incident. The record includes
correspondence from the supplier stating that it has a “60-
day retention period” for all video and photographic content.
Defense counsel attempted to subpoena the video footage
outside that period. At trial, Jasmine testified that although she
had cameras in the home, they were not turned on when the
assault occurred.
b. Application
Hagens asserts that his trial counsel was ineffective in fail-
ing to subpoena the video footage from the supplier in a timely
fashion. We agree with the State that Hagens cannot show
prejudice.
The undisputed facts in the record establish that the sup-
plier retains video content for 60 days. Outside that period, all
content is “automatically deleted” and “cannot be retrieved or
restored.” Regardless, there was uncontroverted testimony that
the cameras in the home were not on at the time of the assault.
Because the 60-day retention period passed long ago, there
is no way for Hagens to obtain the evidence, if it ever existed.
Without it, Hagens cannot demonstrate a reasonable probability
that but for his counsel’s alleged deficient performance, the
result of the proceeding would have been different.
(iii) Failure to Call Witnesses
[27] We do not address Hagens’ assignment of error
that he “received ineffective assistance of counsel when
his counsel failed to call his witnesses.” This assignment
lacks the specificity we demand on direct appeal. We have
repeatedly said that assignments of error on direct appeal
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regarding ineffective assistance of trial counsel must spe-
cifically allege deficient performance, and an appellate
court will not scour the remainder of the brief in search of
such specificity. 57
(iv) Advising Not to Testify
a. Additional Background
Outside the presence of the jury, the judge, and the prosecu-
tor, the following exchange took place on the record:
[Defense counsel]: . . . We have discussed with . . .
Hagens his right to remain silent and his right to testify at
trial in his defense. After discussion and weighing of the
benefits, he is choosing today to not testify.
Is that correct?
[Hagens]: Correct.
[Defense counsel]: Is there anything you want to add?
[Hagens]: No.
[Defense counsel]: Okay. We also have to inform the
[j]udge of your waiver. Okay?
[Defense counsel]: Okay. That’s it. Thanks.
At this point, there was a discussion off the record. Then, the
following exchange took place:
THE COURT: We’re outside the presence of the jury.
Counsel is present. [Hagens] is present.
I know you have made a record, but just formally tell
the [c]ourt whether [Hagens] chooses to testify.
[Defense counsel]: [Hagens] has chosen to waive his
right to testify.
THE COURT: Is that correct, sir?
[Hagens]: Yes.
THE COURT: All right. Very good.
57
State v. German, 316 Neb. 841, 7 N.W.3d 206 (2024).
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b. Application
Hagens assigns that he received ineffective assistance of
counsel when his counsel “advised him not to testify.” There
may be perceived similarities between this assignment and one
we recently declined to address in another case, 58 but here,
the assignment is sufficiently specific. It addresses a specific
issue that does not require additional information to understand
precisely what the assignment attacks: Hagens challenges his
counsel’s advice not to testify. The record does not set forth
any details regarding the advice on this issue given to Hagens
by his trial counsel.
A defendant has a fundamental constitutional right to testify,
and the right to testify is personal to the defendant and cannot
be waived by defense counsel’s acting alone. 59 Defense coun-
sel bears the primary responsibility for advising a defendant
of his or her right to testify or not to testify, of the strategic
implications of each choice, and that the choice is ultimately
for the defendant to make. 60 Defense counsel’s advice to waive
the right to testify can present a valid claim of ineffective
assistance of counsel in two instances: (1) if the defendant
shows that counsel interfered with his or her freedom to decide
to testify or (2) if counsel’s tactical advice to waive the right
was unreasonable. 61
The State concedes that the record on appeal does not con-
tain evidence necessary to the determination of this claim,
including the extent and content of any discussions between
Hagens and trial counsel. The record reflects that the court
asked Hagens whether his trial counsel was correct that he
had chosen to waive his right to testify, and he responded,
“Yes.” But the record reveals nothing of Hagens’ attorney’s
58
See id.
59
State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022).
60
Id.
61
Id.
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discussion with him on this matter. We agree that the record is
insufficient to resolve this claim on direct appeal.
(v) Failure to Move for Mistrial and
Request Curative Instruction
a. Additional Background
At three points during the State’s case in chief, there were
mentions of a separate incident. As noted above, the prosecutor
asked two witnesses—the police officer and the physician—
questions regarding whether J.C. had been sexually assaulted
by Hagens on a separate occasion. Counsel objected but did
not move for a mistrial based on the questions and did not
request a curative instruction.
The third mention was volunteered by Jasmine on direct
examination. As part of establishing the series of events at the
child advocacy center, the prosecutor asked, “[W]hat was the
next thing that happened after that?” Jasmine answered, “Well,
before I seen [J.C.], they called me into a room, sat me down.
I believe they asked me a couple questions. The detective got
some information. They did tell me that [J.C.] revealed that it
had happened one time before.” (Emphasis supplied.) Defense
counsel objected, and the court sustained the objection. Again,
defense counsel did not request a curative instruction and did
not move for a mistrial. From there, the prosecutor resumed
questioning.
b. Application
Hagens argues that his trial counsel was ineffective in fail-
ing to move for a mistrial and request a curative instruction
in response to the prosecutor’s two questions and the testi-
mony volunteered by Jasmine. He asserts that his counsel
was aware “you could not un[]ring the bell.” 62 He contends
that such failures, occurring in all three instances, consti-
tuted deficient performance and were sufficient to undermine
62
Brief for appellant at 38.
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confidence in the outcome. The State doubts whether Hagens’
counsel could have prevailed on a motion for mistrial, but it
asserts that this claim requires an evaluation of trial strategy
and matters not contained in the record.
The following principles are relevant: A mistrial is prop-
erly granted in a criminal case where an event occurs during
the course of a trial that is of such a nature that its damaging
effect cannot be removed by proper admonition or instruc-
tion to the jury and thus prevents a fair trial. 63 To prove error
predicated on the failure to grant a mistrial, the defendant
must prove that the alleged error actually prejudiced him or
her, rather than creating only the possibility of prejudice. 64
Error cannot ordinarily be predicated on the failure to grant
a mistrial if an objection or motion to strike the improper
material is sustained and the jury is admonished to disregard
such material. 65
We conclude that the record is insufficient to resolve
Hagens’ claim. The record shows that the jury heard three
mentions of a separate incident of sexual assault involving
Hagens and J.C. Defense counsel objected in all instances, but
the pertinent questions and testimony were not stricken from
the record and the jury was not admonished or instructed to
disregard them. Days passed before the court tendered the jury
instructions. Because of the absence of a motion for mistrial,
our review of the claim of prosecutorial misconduct was lim-
ited to an examination for plain error.
But the record does not permit us to assess what defense
counsel’s strategy may have been. As noted above, we would
apply a strong presumption that counsel acted reasonably
and would not second-guess counsel’s reasonable strate-
gic decisions.
63
State v. Rush, 317 Neb. 622, 11 N.W.3d 394 (2024), modified on denial of
rehearing 317 Neb. 917, 12 N.W.3d 787.
64
State v. Ramos, 319 Neb. 511, 23 N.W.3d 640 (2025).
65
State v. Lenhart, supra note 36.
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In light of these circumstances, and given the nature of
Hagens’ charges, we cannot say that the record conclu-
sively shows Hagens’ counsel’s performance was not defi-
cient or that he was not prejudiced by the alleged defi-
cient performance.
VI. CONCLUSION
As set forth above, we have refined the rule of law regard-
ing the effect of a failure to move for a mistrial regarding
purported prosecutorial misconduct to employ the language of
forfeiture rather than waiver.
The appellate record is insufficient to address two ineffective
assistance of trial counsel claims. Otherwise, seeing no merit to
Hagens’ arguments, we affirm the district court’s judgment.
Affirmed.
Freudenberg, J., not participating.
Bergevin, J., concurring.
I join the opinion of the court in full. However, I write
separately to emphasize the importance of not inquiring into
evidence of other acts until the trial court has determined the
admissibility of that evidence.
Hagens argues that the State committed prosecutorial mis-
conduct when it asked questions that suggested inadmissible
evidence to the jury after it failed to address the evidence in a
hearing outside the presence of the jury. But the State argues
that no misconduct occurred because the evidence was admis-
sible as “inextricably intertwined evidence.” 1
1
See, e.g., State v. Lee, 304 Neb. 252, 271, 934 N.W.2d 145, 160 (2019)
(“[i]nextricably intertwined evidence includes evidence that forms part of
the factual setting of the crime, is so blended or connected to the charged
crime that proof of the charged crime will necessarily require proof of the
other crimes or bad acts, or is necessary for the prosecution to present a
coherent picture of the charged crime”).
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The Nebraska Evidence Rules render all propensity evi-
dence inadmissible, subject to specific exceptions 2 and proce-
dural requirements. 3 This court has held that rule 404(1) does
not apply if the evidence is “inextricably intertwined” with
the charged crime. 4 Consequently, the first inquiry concerning
evidence that gives rise to a propensity inference is whether
the evidence is, in fact, rule 404 evidence. 5
To that end, whenever the State intends to offer evidence
of other acts by the defendant that the State views as “inex-
tricably intertwined” with the charged offenses, the best
practice is for the State to first raise the evidence outside the
presence of the jury and obtain a ruling on its admissibility.
Doing so is certainly practicable, 6 and there was no reason
not to do so here.
2
See, Neb. Evid. R. 404(1)(a) to (c) and (2), Neb. Rev. Stat. § 27‑404(1)(a)
to (c) and (2) (Cum. Supp. 2024); Neb. Evid. R. 414(1), Neb. Rev. Stat.
§ 27‑414(1) (Reissue 2016).
3
See §§ 27‑404(3) and (4) and 27‑414. See, also, State v. Swartz, 318 Neb.
553, 17 N.W.3d 174 (2025) (discussing evidence of other sexual assaults
under § 27‑414); State v. Wheeler, 314 Neb. 282, 989 N.W.2d 728 (2023)
(discussing evidence of other acts under § 27‑404).
4
See, e.g., State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023), cert.
denied ___ U.S. ___, 144 S. Ct. 1073, 218 L. Ed. 2d 249 (2024); State v.
Lee, 304 Neb. 252, 934 N.W.2d 145 (2019); State v. Wisinski, 268 Neb.
778, 688 N.W.2d 586 (2004). See, also, State v. Pruett, 263 Neb. 99, 638
N.W.2d 809 (2002); State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395
(2000).
5
See State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002).
6
See Neb. Rev. Stat. § 27‑103(3) (Reissue 2016) (“proceedings shall
be conducted, to the extent practicable, so as to prevent inadmissible
evidence from being suggested to the jury by any means, [including]
asking questions in the hearing of the jury”). See, also, State v. Houser,
241 Neb. 525, 490 N.W.2d 168 (1992) (failure to conduct proper hearing
may be basis for reversal). Cf. State v. Jackson, 255 Neb. 68, 582 N.W.2d
317 (1998).