State v. Wood

Nebraska Supreme Court Online Library

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02/11/2022 09:12 AM CST

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

State of Nebraska, appellee, v.

Marvin L. Wood, appellant.

___ N.W.2d ___

Filed November 19, 2021. No. S-20-877.

1. Trial: Expert Witnesses. The right of an indigent defendant to the

appointment of an expert witness at the State’s expense generally rests

in the discretion of the trial court.

2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules

apply, the admissibility of evidence is controlled by the Nebraska

Evidence Rules and judicial discretion is involved only when the rules

make discretion a factor in determining admissibility.

3. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence

Rules commit the evidentiary question at issue to the discretion of the

trial court, an appellate court reviews the admissibility of evidence for

an abuse of discretion.

4. Effectiveness of Counsel: 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 on direct appeal; the deter-

mining factor is whether the record is sufficient to adequately review

the question.

5. Effectiveness of Counsel: Records: Proof: Appeal and Error. The

record is sufficient to resolve on direct appeal a claim of ineffective

assistance of counsel if the record affirmatively proves or rebuts either

deficiency or prejudice with respect to the defendant’s claims.

6. Due Process. There are three factors of procedural due process set forth

in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18

(1976): First, the private interest that will be affected by the official

action; second, the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of addi-

tional or substitute procedural safeguards; and finally, the government’s

interest, including the function involved and the fiscal and administra-

tive burdens that the additional or substitute procedural requirement

would entail.

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

7. Expert Witnesses. With respect to a defense request for the appoint-

ment of an expert independent of the prosecution, the question in each

case must be not what field of science or expert knowledge is involved,

but, rather, how important the scientific issue is in the case and how

much help a defense expert could have given.

8. ____. Some reasonable preliminary showing by the defense justifying

its request for the appointment of an expert is necessary because the

criminal justice system cannot afford defense experts on demand.

9. Judges: Expert Witnesses. The determination of whether a defend­

ant has made an adequate showing of the reasonable necessity for an

appointed expert lies within the discretion of the trial judge.

10. Courts: Words and Phrases. A district court abuses its discretion when

its reasoning or rulings are clearly untenable, unfairly depriving a liti-

gant of a substantial right and denying a just result in matters submitted

for disposition.

11. Constitutional Law: Expert Witnesses. Outside the context of psy-

chiatric expertise, to show a constitutional right to appointment of an

independent expert at the State’s expense, the accused must timely make

a preliminary, particularized showing (1) that an issue involving spe-

cialized knowledge is likely to be a significant factor in the accused’s

defense and (2) that there is a reasonable necessity for the defense to

have expert assistance in contesting that issue.

12. Expert Witnesses. To be a significant factor in an accused’s defense,

an issue involving specialized knowledge must be one likely to make a

difference as to the outcome if the defendant is successful in contest-

ing it.

13. ____. There is a reasonable necessity for appointed expert assistance

if the defendant shows some basis for believing the issue can only be

strongly contested with the assistance of an appointed expert.

14. Trial: Expert Witnesses. Sometimes, under the facts presented, pretrial

access to the State’s experts and their cross-examination at trial will be

adequate to contest the issue.

15. Expert Witnesses. In the context of a motion for appointment of an

expert, public money need not provide defense counsel with equipment

for a “fishing expedition.”

16. ____. The defense cannot be asked to support the motion for appoint-

ment of an expert with information that can only be found by paying for

expert assistance the defendant cannot afford. Neither should the trial

court demand defense counsel conduct a lay investigation outside the

bounds of what can be expected from an attorney of ordinary training

and experience.

17. Trial: Expert Witnesses. There must be some particularized preliminary

showing by the defendant either that cross-examination of the State’s

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

experts was inadequate to the task of revealing misleading or inadequate

information or that there was a reasonable necessity for an independent

expert to help the defense prepare for effective cross-examination of the

State’s experts.

18. Effectiveness of Counsel: Appeal and Error. The fact that an inef-

fective assistance of counsel claim is raised on direct appeal does not

necessarily mean that it can be resolved.

19. Effectiveness of Counsel: Proof: Appeal and Error. 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.

An appellate court may address the two prongs of this test, deficient

performance and prejudice, in either order.

20. Effectiveness of Counsel: Records: Proof: Appeal and Error. An

appellate court can determine whether the record proves or rebuts the

merits of a claim of ineffective assistance of trial counsel only if it

has knowledge of the specific conduct alleged to constitute deficient

performance.

21. Effectiveness of Counsel: Appeal and Error. In order to preserve a

claim of ineffective assistance of trial counsel when new counsel repre-

sents the defendant on direct appeal, the appellant must make specific

allegations of the conduct the appellant claims constituted deficient

performance by trial counsel.

22. Effectiveness of Counsel: Waiver: Records: Appeal and Error.

Appellate counsel does not waive a claim of ineffective assistance

of trial counsel by failing to specifically allege and argue prejudice,

because doing so would often require details unlikely to be found in the

record or known to the defendant without further inquiry.

23. Records: Appeal and Error. An appellate court ordinarily does

not scour the record in search of facts that might support an appel-

lant’s claim.

24. Rules of Evidence: Hearsay: Evidence: Witnesses. Neb. Rev. Stat.

§ 27-806 (Reissue 2016) allows the credibility of a declarant of a hear-

say statement or statement defined in Neb. Rev. Stat. § 27-801(4)(b)(iii),

(iv), or (v) (Cum. Supp. 2020)—statements offered against a party that

are by a person authorized by the party, by the party’s agent or servant,

or by the party’s coconspirator—to be attacked by any evidence that

would be admissible for those purposes if the declarant had testified as

a witness, without any opportunity to deny or explain.

25. Rules of Evidence: Hearsay: Proof. 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.

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

26. Hearsay. Statements offered to show their effect on the listener are

not hearsay.

27. ____. Statements are not hearsay to the extent they are offered for con-

text and coherence of other admissible statements and not for the truth

or the truth of the matter asserted.

28. Witnesses: Impeachment: Prior Convictions. The basic premise

underlying impeachment of a witness by evidence of a prior felony

conviction is that any past felony committed by the witness is to some

degree relevant to that individual’s credibility.

29. Witnesses. Credibility of a witness is not at issue when the truth of the

assertions are not in dispute.

30. Judges: Evidence: Appeal and Error. The exercise of judicial dis-

cretion is implicit in determinations of relevancy, and a trial court’s

decision regarding relevancy will not be reversed absent an abuse of

discretion.

31. Constitutional Law: Trial: Witnesses. The Confrontation Clause guar-

antees an opportunity for effective cross-examination, but not in what-

ever way or to whatever extent the defendant might wish, and trial

judges retain wide latitude to impose reasonable limits on such cross-

examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation

that is repetitive or only marginally relevant.

32. Effectiveness of Counsel: Proof. To show that counsel’s performance

was deficient, a defendant must show that counsel’s performance did not

equal that of a lawyer with ordinary training and skill in criminal law.

33. Effectiveness of Counsel: Presumptions. In assessing deficiency in

counsel’s performance, a court presumes that counsel rendered adequate

assistance and made all significant decisions in the exercise of reason-

able professional judgment.

34. Effectiveness of Counsel. Trial counsel’s decisions that amount to rea-

sonable trial strategy do not constitute deficient performance.

35. ____. Decisions about whether to engage in cross-examination, and if so

to what extent and in what manner, are strategic in nature and generally

will not support an ineffective assistance claim.

36. Effectiveness of Counsel: Appeal and Error. An appellate court does

not use perfect hindsight to criticize unsuccessful trial strategies or

second-guess trial strategy.

37. Expert Witnesses: Words and Phrases. An expert does not have to

couch his or her opinion in the magic words of reasonable certainty, but

it must be sufficiently definite and relevant to provide a basis for the

fact finder’s determination of a material fact.

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

38. Expert Witnesses. A court should exclude an expert’s opinion when it

gives rise to conflicting inferences of equal probability, so the choice

between them is a matter of conjecture.

39. DNA Testing: Evidence: Jurors. The potential precision of DNA

testing is well known; thus, jurors might wrongly assume, absent evi-

dence of statistical relevance, that any DNA profile match is extremely

unlikely and therefore extremely probative.

40. ____: ____: ____. Because of the significance that jurors will likely

attach to DNA evidence, the value of inconclusive testing results with-

out statistical relevance is substantially outweighed by the danger that

the evidence will mislead the jurors.

41. Sexual Assault: DNA Testing: Evidence: Jurors. In an alleged sexual

assault described by a female victim as involving her genital area and

a male perpetrator, the presence of male DNA near the victim’s genital

area is relevant to whether the assault occurred as the victim described,

and such evidence is not outweighed by a danger of confusing the issues

or misleading the jurors even if the DNA is of insufficient quantity or

quality to obtain a profile.

42. 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.

43. 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.

44. Lesser-Included Offenses: Jury Instructions: Evidence. A court must

instruct on a lesser-included offense if (1) the elements of the lesser

offense for which an instruction is requested are such that one cannot

commit the greater offense without simultaneously committing the lesser

offense and (2) the evidence produces a rational basis for acquitting the

defendant of the greater offense and convicting the defendant of the

lesser offense.

45. Lesser-Included Offenses: Sexual Assault. Attempted first degree sex-

ual assault of a child is a lesser-included offense of first degree sexual

assault of a child.

Appeal from the District Court for Hall County: Andrew C.

Butler, Judge. Affirmed.

Robert W. Alexander, Deputy Hall County Public Defender,

for appellant.

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

Douglas J. Peterson, Attorney General, and Nathan A. Liss

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

Marvin L. Wood appeals from his conviction of first degree

sexual assault of a child. He asserts the trial court erred by

refusing to appoint him a DNA expert, sustaining the prosecu-

tion’s objection to further use of a forensic video to refresh

the victim’s recollection, and sustaining the State’s relevancy

objection to his attempt to adduce the fact that the declarant

of certain out-of-court statements was a convicted felon. Wood

also makes numerous claims of ineffective assistance of his

trial counsel, including the failure to adequately support the

motion for a DNA expert, the handling of the State’s DNA evi-

dence, and the cross-examination of the victim. We affirm the

judgment below.

II. BACKGROUND

With counsel different from trial counsel, Wood appeals

his conviction, following a jury trial, of first degree sexual

assault of a child pursuant to Neb. Rev. Stat. § 28-319.01(1)(a)

(Reissue 2016). Trial counsel did not request that the jury be

instructed on a lesser-included offense of attempted first degree

assault of a child. The victim was friends with Wood’s daugh-

ter, and the assault occurred during a sleepover with Wood’s

daughter at Wood’s apartment. The victim was 8 years old at

the time of the assault and 9 years old at the time of trial.

1. Motion to Employ Expert Witness

Wood was charged in September 2019. Due to laboratory

delays in DNA testing, trial was continued to August 3, 2020,

with a pretrial conference set for July 2. The DNA test results

became available to the defense on June 8. At the July 2 pre-

trial conference, defense counsel indicated readiness to go

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

to trial. However, on July 17, Wood moved to continue trial

on the grounds that he would be asking the court to provide

funds to retain a DNA expert and that the expert Wood wished

to hire was not available during the scheduled week of trial.

The prosecutor objected, noting it was the first she had heard

about the alleged need for a DNA expert. The court granted the

contin­uance, ordering trial to begin on September 14.

On July 27, 2020, Wood moved for the court to provide him

“with reasonable funds to employ an independent expert wit-

ness in the field of DNA science” and set forth the estimated

costs and fees for the expert witness he proposed to hire. As for

the need for such an expert, the motion elaborated that “[b]ased

on counsel’s review of discovery, the State’s evidence in the

above-styled case appears to consist of testimony of an alleged

victim, photographs of her injuries, medical reports and expert

testimony.” This meant that

[Wood] has a particularized need for the assistance of

an independent expert in the field of DNA science to

assess the DNA reports and testing methods completed

by the Nebraska Crime Lab and explain if they are con-

sistent with the statement(s) of the alleged victim, proper

scientific methods, and the other evidence collected in

this case.

Based upon the DNA report completed by the Nebraska State

Patrol Crime Laboratory, “it has become apparent further anal-

ysis is needed regarding test results and methods of testing

used by the Nebraska State Patrol Crime Laboratory.” Finally,

the motion set forth that “[c]ounsel for [Wood] lacks the nec-

essary expertise to question the DNA reports provided by the

State in regards to DNA testing methods and DNA results to

determine whether the alleged victim’s statements and testing

are consistent with the DNA evidence that may exist.” And

“[c]ounsel lacks expertise regarding testing methodology and

if such testing was conducted according to the recognized stan-

dards.” Therefore, trial counsel was “in need of the assistance

of an expert witness in the DNA field to assist in evaluating

these matters.”

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

At hearings on the motion, trial counsel introduced evidence

to support Wood’s indigent status. The court acknowledged

the evidence demonstrated Wood was indigent. Trial counsel

explained Wood had used all his assets in retaining counsel

that was continuing representation on a pro bono basis. The

only other evidence offered by trial counsel was a copy of the

motion and its attached cost estimate for the proposed expert.

Trial counsel acknowledged that the court had allowed Wood

to employ an expert sexual assault nurse examiner to testify on

behalf of the defense and that the State had allowed the defense

to have access to its DNA expert from the Nebraska State

Patrol Crime Laboratory. Nevertheless, trial counsel became

aware of the need for a DNA expert after witness preparation

occurred with Wood’s expert sexual assault nurse examiner in

mid-July. Trial counsel argued that “based on some of the con-

clusions and the methodology that was used in the creation of

the DNA report, we’re needing a DNA expert” “to look at how

these tests were performed.” Trial counsel elaborated:

We believe it’s necessary to employ a DNA expert to

help the jury to understand what the DNA evidence in this

case means. Specifically, I believe the evidence will show

that there was found on the alleged victim’s underwear a

mixture of DNA from three people, a 4 percent portion of

which appears to be that of . . . Wood.

However, the amount of DNA, the amount of cells

where it was found, to explain to the jury how that actu-

ally exists in life, whether it’s touch DNA, what kind of

cells, all of that, Judge, I’m not an expert in DNA. The

jury is not an expert in DNA. But I believe it’s important

that we have someone who can explain to them exactly

what this means.

The State will have an expert that does all of that and

explain how things were tested and how it was found,

why they believe that it’s . . . Wood’s DNA on those

underwear, but the jury also needs to understand the facts

in totality.

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

Because in speaking to our expert, talking about mark-

ers, talking about whether it’s one in a billion or one in a

trillion or one in 500,000, all these probabilities of who it

could be, how many cells, what kind of cells, whether it’s

touch DNA, seminal fluid or semen, all of these things

matter. It’s something we don’t have the expertise to

explain to the jury.

Trial counsel also described an alleged phone call with the

Nebraska State Patrol Crime Laboratory in which it was dis-

closed that no male DNA was detected in any of the swabs and

the biologist “didn’t understand the findings that were in that

lab report.” Trial counsel summarized that the request was for

the court to “allow us to hire this expert and to use her both for

review of the trial to help educate us as to DNA and its mean-

ing, and then to educate the jury and educate a layman exactly

what that means.”

The court denied the motion. It observed that “virtually no

evidence to support the motion was offered” and that “[t]he

reasons that prompted an ‘apparent’ need for an expert witness

remain largely unspecified.” It then reasoned:

The State has indicated that it intends to call upon an

expert in genetic analysis employed by the Nebraska

Crime Lab. While this expert would technically be con-

sidered the State’s witness, this Court finds no evidence

to suggest that defense counsel is deprived of the right

to cross examination. Likewise, this Court possesses no

knowledge that would indicate that defense counsel is

incapable of amassing sufficient independent research on

the subject that would equip defense counsel with the rel-

evant knowledge and resources required to conduct such

cross examination.

The court concluded that it was not “required to provide

[Wood] with the tools needed for a ‘fishing expedition’” and it

was “confident that defense counsel in this case has the intel-

lectual capacity, resources, and creativity required to mount an

exceptionally comprehensive cross examination of the State’s

proposed expert witness.”

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

2. Mother’s Testimony

The first witness called by the State was the victim’s mother.

She testified that she was in a romantic relationship with

Matthew Price, the owner of an auto shop where Wood worked,

and that her daughter and Wood’s daughter were friends.

The two girls often played together at the shop where Wood

was employed.

The mother testified that the morning after the victim spent

the night at Wood’s apartment for a sleepover with Wood’s

daughter, she was informed the victim would be going to

Lincoln, Nebraska, with Wood and his daughter because Wood

had to get a title to a vehicle. These arrangements were unex-

pected and were made without her input. Later that day, Wood

dropped the victim off at a parking lot near Price’s softball

game that the mother was attending. Wood’s daughter was not

with him. The victim exited Wood’s vehicle first, holding an

outfit Wood had purchased for her in Lincoln. When Wood

exited the vehicle, the first thing he said was, “‘She’s been a

fucking brat all day.’” Price invited Wood to stay for the game,

but Wood declined.

The mother and the victim sat in the dugout to watch the

game. The mother testified that, since the victim’s arrival,

the victim “was being really quiet,” “clinging on to me pretty

tight,” and “wasn’t saying anything when anybody was around

at all.” The mother asked the victim if something was wrong.

The victim told her mother she needed to tell her a “secret.”

After the victim told her the “secret,” the mother immediately

“hollered to the field,” telling Price she needed to leave. They

took the victim immediately to a hospital. The mother told the

victim they needed to see a doctor because of what happened.

The victim said, “‘Okay.’” She “was crying in the car the

whole time.”

There was a delay in finding someone to come to the hospi-

tal to examine the victim. The mother testified that while they

were waiting for the victim to be examined, the victim needed

to use the restroom. The mother accompanied her. After the

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

victim wiped herself, she showed her mother the toilet paper,

because it had blood on it. The mother conveyed this informa-

tion to a nurse at the hospital. The mother explained that before

that day, the victim had not complained of experiencing any

irritation in her vaginal area, and that the victim normally tells

her “right away” if something like that is wrong.

They waited about 5 hours while the hospital attempted to

set up a medical examination, but it was not able to do so.

The entire time, the victim kept wearing everything she had

worn since being dropped off with her mother, because the

staff “didn’t want to contaminate anything.” This included the

underwear she had worn during the sleepover.

After the victim was released from the hospital, her mother

and Price took her to a child advocacy center. The victim was

quiet on the ride there. The victim was asked to change her

underwear and give the underwear she was wearing to the

interviewer at the child advocacy center, who put them in a

paper bag. The victim was interviewed, and then they went

home. The interview had lasted until approximately 1 a.m.;

they had arrived there late in the evening.

The victim was finally able to be examined by a pediatrician

2 days after she spent the night at Wood’s apartment.

The mother described changes in the victim’s behavior. Her

normally “pretty happy kid” had become more quiet and would

“get angry about small things.” The victim has two siblings.

While the victim used to occasionally shower with her younger

sister when there was not enough time for all three siblings to

take separate showers, she no longer did. The victim did not

want to get dressed in front of anyone. When it was time to

go to bed, the victim “would start crying that she didn’t want

to be, like, in her room by herself” and she “would wake up

crying a lot.” This was not behavior the mother had observed

before the victim spent the night at Wood’s apartment.

During trial counsel’s cross-examination of the mother, she

was asked whether she knew Price was a convicted felon.

The prosecution objected, and counsel had an in-chambers

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

conference in which the prosecution explained its objection

was on the grounds of relevance and improper character evi-

dence. Defense counsel argued the evidence supported the

theory that Price and the victim’s mother “got together and

chose to have [the victim] make up this story.” The court sus-

tained the objection, explaining that, at that time, there was no

evidence supporting the relevancy of Price’s criminal history.

The court explained that it would retain the mother for added

testimony later, if defense counsel wished. Defense counsel

said nothing further on the matter. The jury was instructed to

disregard the question regarding Price’s criminal history.

The mother’s testimony during direct examination had

referred to approximately five general statements by Price. At

one point in describing the events leading up to the sleepover,

she said Price had told her that because the victim had been

good all day, he was going to let her go to the sleepover. She

also described how Price had told her that Wood took the vic-

tim directly from the shop to the sleepover at his apartment.

Price had informed the mother that the victim was going with

Wood and Wood’s daughter to Lincoln the day following the

sleepover. The mother testified as to how Price had invited

Wood to stay and watch the softball game. Finally, when the

mother later yelled at Price that she needed to leave, she testi-

fied Price asked her, “‘What’s wrong?’”

3. Law Enforcement Officer Testimony

A law enforcement officer who had met the victim at the

hospital testified at trial. She described the victim as “with-

drawn” and “in shock.” The officer testified she became aware

at the hospital that blood had been observed on a piece of toilet

paper after the victim used the restroom. She elaborated that

she heard multiple medical professionals speaking about it.

The officer went to the child advocacy center when the

victim did, collected the underwear, and placed it into evi-

dence. The officer later went to Wood’s apartment, and Wood

accompanied the officer to the police station for an interview.

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

In the interview, Wood said he had gone to his daughter’s room

to comfort the victim who was scared of a severe storm that

occurred that night. The officer affirmed on cross-examination

that a large storm had occurred on the night in question.

The officer testified that Wood said he brought the victim

to the sofa bed in the living room, which had been turned

into a bed; gave the victim a “tablet [computer] for entertain-

ment”; and lay down next to her and fell asleep. Wood denied

any physical contact other than putting his arm around her for

comfort. At some point during the interview, Wood expressed

that the victim had put on only a shirt and underwear to wear

to bed and that he thought it was unacceptable she was not

wearing pants. Further, Wood said that sometimes the victim

would climb all over him, “but she sets those boundaries.”

Wood stated that when he woke up on the sofa bed, “she was

right there, that she sets those boundaries.”

4. DNA and Serum Testing of Clothing

and Medical Examination Swabs

A forensic biologist in the DNA unit of the Nebraska State

Patrol Crime Laboratory testified as to the procedures and

results of DNA and serum testing of the victim’s clothing and

of swabs taken during the medical examination.

(a) Serum Testing

The biologist tested the items from the sexual assault medi-

cal examination kit, which included two vaginal swabs, two

external genital swabs, and two oral evidence swabs. Serology

testing did not detect the presence of semen in any item con-

tained in the kit.

(b) DNA Processing of Examination

Swabs and Exhibit 18

The biologist then processed all the examination swabs for

DNA. Exhibit 18, entered into evidence by the State without

objection, is the laboratory report signed by the biologist. It

shows that no semen was found in the swabs and that DNA

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STATE v. WOOD

Cite as 310 Neb. 391

testing was performed on them. It shows that DNA processing

of the DNA samples in both the two vaginal swabs and the

two oral evidence swabs was stopped “due to the insufficient

quantity of male DNA detected.” The victim’s DNA was found

on the external genital swabs, while Wood was excluded as a

contributor to the DNA profile detected.

The biologist explained that the aspect of the report showing

processing of the two vaginal swabs and the two oral swabs

was stopped, due to the insufficient quantity of male DNA

detected, meant that she “was not able to detect the presence

of male DNA on the sample.” The State then asked the biolo-

gist, “Can you say with certainty that there was no male DNA

on the two vaginal swabs?” She responded, without objection,

“I couldn’t say definitively, no, there’s no DNA present. It

just wasn’t in great enough amounts to be detected using this

form of testing.” With respect to the oral swabs, the biologist

again confirmed, without objection, she was not able to say

with absolute certainty whether or not there was male DNA

on them.

The biologist was also asked about the external genital

swabs. She explained that, referring to some of the worksheets

generated as a byproduct of her testing during the quantitation

portion of the DNA process, she had detected the presence of

both male and female DNA. This information is not reflected

in the report. The biologist testified that, as stated in the report,

Wood’s profile was excluded from that sample, while the vic-

tim’s DNA was included. The biologist explained Wood was

excluded because she was not able to find a profile of that

male DNA to compare with other DNA profiles. “In samples

like this where there’s a greater female present than male, the

female can essentially drown out any potential load level of

male DNA.”

(c) Y-STR DNA Testing of Examination

Swabs and Exhibit 20

The biologist testified that in a further attempt to find

a profile in the male DNA she had detected, she sent the

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STATE v. WOOD

Cite as 310 Neb. 391

external genital swabs for “Y-STR testing,” which can ignore

the female DNA and just focus on the male DNA. This can

make it possible to obtain a DNA profile to use for comparison

purposes. The Y-STR DNA testing was performed by one of

the supervisors in the biology unit of the Nebraska State Patrol

Crime Laboratory. The biologist reviewed the report, marked

as exhibit 20, before testifying further. She then testified that

the Y-STR DNA testing was, like the DNA testing conducted

by herself, unable to detect a male DNA profile. As a result,

the male DNA found could not be compared with any other

known DNA profiles for comparison purposes.

The State did not offer exhibit 20 into evidence. But on

cross-examination, trial counsel offered exhibit 20 into evi-

dence and it was received. The biologist testified that the

supervisor’s report, marked as exhibit 20, was a true and accu-

rate copy and that she recognized the supervisor’s signature

on it.

Exhibit 20 is a short report that concludes no Y-STR DNA

profile was found.

(d) Epithelial DNA on Underwear and Exhibit 17

The biologist also performed testing on the victim’s under-

wear that she wore at the time of the incident, which testing did

not detect semen. Swabs for epithelial, or “touch,” DNA on the

waistband and crotch area of the underwear were tested, and a

mixture of DNA originating from three individuals was found.

The victim was a major contributor to that mixture.

Testing included Wood as one of the minor contributors to

the mixture. Two percent of the DNA mixture was from an

unknown person. The results of this DNA testing were entered

into evidence as exhibit 17.

During cross-examination, the biologist explained that touch

DNA could be transferred directly or indirectly by touching

things a person has touched. She also explained that one would

expect to find the touch DNA of a person on surfaces where

that person lives.

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5. Victim’s Testimony

The victim testified that the last time she spent the night at

Wood’s apartment, she had slept in the top bunk of a bunk bed

in her friend’s bedroom. She testified that Wood woke her up.

Wood accompanied her to the living room, where a sofa bed

had been made into a bed. The victim described that while

she stood by the sofa bed, Wood removed her pajama pants.

She admitted she was unsure if she was wearing a nightgown

instead of pants. The victim described that Wood removed her

underwear. Wood lay down on the sofa bed with the victim and

unzipped and pulled his pants down “a little.” The victim testi-

fied Wood lay on top of her and “put[] his finger in my private

part.” They eventually went to Wood’s bedroom, where the

victim described “he put his private in mine.”

The victim described that during the shopping excursion

the following day, Wood said he did not want the victim “to

tell” because she and Price “were his only friends.” The victim

could not remember if she was wearing the new clothes the fol-

lowing day when she was brought back to her mother.

The victim explained that she told her mother what had hap-

pened and that they went to the hospital. At the hospital, her

mother accompanied her when she had to use the bathroom,

and her “pee” was light red and it hurt when she urinated. The

victim also explained that she was wearing the same underwear

she had worn when Wood had woken her up.

(a) Refreshing Recollection With Video

Trial counsel had moved before trial for the release of the

child advocacy center video of the victim’s forensic interview,

but had then withdrawn this request, explaining, “We needed

to have it formatted in a way we could go back and forth in

time in case we need to refresh the memory of the [victim].

We were able to do that without the necessity of releasing it

to anyone.” On cross-examination, the victim testified she did

not remember if she had taken clothes to Wood’s apartment

or if she had taken a shower or bath while there. Most of the

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cross-examination centered on the victim’s prior statements in

the forensic interview and deposition.

At one point, trial counsel asked about the interview and the

fact that it was just the victim and the interviewer present in

the room. When trial counsel then asked questions such as, “do

you remember where you told them that this took place?,” a

series of questions and answers revealed the victim’s confusion

about whether she was being asked about the room where the

interview had taken place or the location where the assault had

taken place.

She eventually testified she had told the interviewer the

incident started in her friend’s room, moved to the living

room, and then to Wood’s bedroom. At that point, in chambers,

defense counsel was permitted to show the victim a portion of

the video of the interview. Upon returning to the courtroom,

the victim stated that the video had refreshed her memory.

The victim confirmed she had told the interviewer that

Wood and she went from her friend’s bedroom to Wood’s bed-

room. She had not told the interviewer anything with Wood

had occurred in the living room.

Trial counsel also confronted the victim with her deposition

testimony that Wood had taken her to the living room, where

all the events described occurred. She did not testify in her

deposition that she had gone to Wood’s bedroom.

Trial counsel proceeded to ask the victim if she remembered

what she had told the interviewer with respect to whether Wood

took his clothes off or only unzipped his pants. When the vic-

tim said she did not remember, she was again taken in cham-

bers where she watched a portion of the video of her interview.

Upon returning to the courtroom, the victim testified she had

told the interviewer that Wood had taken his clothes off.

Next, trial counsel confronted the victim with her statement

in her deposition that Wood had placed her into his bed. Trial

counsel asked if she remembered what she had said in this

regard in her interview at the child advocacy center. She did

not remember. But before the court ruled on trial counsel’s

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request to take the victim back in chambers to watch a portion

of the video, an off-the-record discussion between counsel and

the court took place, after which the jury was dismissed until

the continuation of trial the following day.

(b) Plan to Have Victim Watch Entire Video

The court articulated that a plan had been made for the

victim to watch the entirety of the interview video with her

guardian ad litem and have the transcript of her deposition read

to her before testifying the next day. The court explained this

was to avoid the “up-and-down issue that we have been having

with this.”

The following morning, however, the prosecution explained

the victim had her deposition read to her, but only watched

about 16 minutes of the 45-minute interview before the guard-

ian ad litem decided to stop it. The guardian ad litem explained

she became “very concerned with [the victim’s] demeanor and

a change in her demeanor that I thought she became just vis-

ibly upset and kind of shrunken down into her chair.”

(c) Objection and Ruling That Video

Could Not Be Used

The prosecution stated that it had reflected upon “what hap-

pened yesterday” and that, after some research, it decided to

motion the court to prohibit the defense from using the inter-

view video to refresh the victim’s recollection. The prosecu-

tion relied on the fact that Neb. Rev. Stat. § 27-612 (Reissue

2016) refers only to writings, as well as the case of State v.

Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019). Even if

refreshing the victim’s recollection with the video were per-

missible, the State argued the procedure used did not comport

with § 27-612. Lastly, the prosecution explained it believed

counsel was attempting to impeach the victim under the guise

of refreshing her recollection.

According to the prosecution, when the attempted impeach-

ment did not work because the victim did not remember what

she had said, the rules contemplated impeachment through

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extrinsic evidence, not by using extrinsic evidence to refresh

a victim’s recollection so she could then impeach herself. The

prosecution argued there were other means to impeach the vic-

tim’s testimony without making her watch the interview video.

For example, the defense could call another witness who was

present at the interview and impeach the witness’ testimony by

adducing the other witness’ testimony about what was said.

Trial counsel responded no notice was given that this was

to be discussed and the matter was believed to be settled. That

said, “Certainly I have no issue using her prior statements

against her without her being refreshed. Probably would have

been easier for her.” But trial counsel also pointed out that

Neb. Rev. Stat. § 27-613 (Reissue 2016) describes giving a

witness the opportunity to explain or deny a prior inconsistent

statement. Trial counsel then argued that “for her to simply say

I don’t remember when she made an inconsistent statement is

not acceptable. We would then be unable to delve into it by

actually playing that portion of the video to the jury.”

The court ruled that the victim’s recollection could no longer

be refreshed by use of the interview video, nor could the video

be played for the jury as extrinsic evidence to impeach the vic-

tim. The court said:

Yes, going forward, the moment [the victim] indicates

she doesn’t remember, she doesn’t remember. That is her

answer. You do have the opportunity through [§ 27-]613

for the inconsistent statements with extrinsic evidence,

but that will not include the playing of that video or the

refreshing of her recollection with that video.

We still have the deposition, which that has been read

to her this morning, and you can question regarding that.

Trial counsel did not respond to this pronouncement and did

not ask to make an offer of proof as to any impeachment

believed to be thereby impeded.

(d) Resumption of Cross-Examination

When cross-examination resumed, the victim admitted that

she had told defense counsel in her deposition that she had

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dressed herself after the assault, while in her testimony at trial

she said Wood put her clothes on her. Defense counsel also

questioned the victim about the details of her shopping trip

with Wood the following day.

6. Testimony of Forensic Interviewer

The forensic interviewer testified about her interview of

the victim the evening after the assault. She said that she was

trained in the disclosure process children typically use when

disclosing traumatic events and that disclosure does not usually

happen all at once. Also, a child may not disclose all the details

involved in the assault during the forensic interview.

On cross-examination, trial counsel asked the interviewer

where the victim had told her the incident had taken place.

The interviewer answered in the bedroom. Then trial counsel

asked, “Let’s talk first about [Wood’s] bedroom. Is that where

she said the, I’ll call it touching, took place?” The prosecution

objected on the grounds of hearsay and improper impeach-

ment. In a discussion at the bench, the trial counsel asserted

the question was not hearsay because it was asked to elicit the

prior inconsistent statements for purposes of impeachment. The

prosecution responded:

He is only able to impeach specific statements that [the

victim] testified to when she testified in this court hear-

ing, and asking this witness to have her essentially recount

everything that [the victim] told her is above and beyond

impeachment. He needs to be specific, needs to ask her

— I mean, we haven’t even said a specific statement he’s

attempting to impeach. To use [the interviewer] to reiter-

ate the entirety of the interview is not confined enough to

qualify as improper impeachment.

Trial counsel withdrew the question and agreed to ask a

more specific question. The following cross-examination then

took place:

Q Did [the victim] tell you that the incident took place

in [Wood’s] room?

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A Part of it, yes.

Q Did [the victim] tell you that in [Wood’s] room [he]

put his private parts in her private parts?

A Yes.

Q Did [the victim] tell you that [Wood] took her

back to her bed, the bunkbed, got in bed with her and

kissed her?

A Yes.

....

Q [The victim] then said that [Wood] got out of the top

bunk and she went to sleep, correct?

A Yes.

....

Q Did [the victim] tell you that . . . Wood took off his

clothes?

A Yes.

On redirect, the interviewer testified that children dis-

closing traumatic events do not always disclose the facts

chronologically.

7. Sexual Assault Examination

The pediatrician who performed the victim’s sexual assault

examination testified the victim had disclosed she had some

burning and some blood when she urinated the night before,

but those issues had resolved by the time of the examination.

The pediatrician testified that the victim eventually became

uncooperative when the pediatrician attempted to swab the out-

side of the victim’s vaginal opening and that the pediatrician

was unable to swab fully.

All other aspects of the sexual examination kit were com-

pleted successfully. The pediatrician also conducted a physi-

cal examination for injuries. She photographed the area, but

explained the photographs could have been better had the vic-

tim been more cooperative when they were taken. The victim

at that point had become “uncomfortable.”

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The pediatrician testified that she observed during the physi-

cal examination “an extreme amount of redness and irritated

tissue from about 3 o’clock going around to about 9 o’clock on

the face of a clock.” She explained, “Lots of young girls have

redness down there, but this was impressive, much more than

you see on a standard exam of a child.”

The pediatrician also observed a superficial, vertical lac-

eration at about the 9 o’clock position and in the folds of the

labia minora adjacent to the vaginal opening. The tissue of

the vagina heals very quickly; therefore, she concluded the

observed injuries were recent.

The victim’s injuries, the pediatrician explained, could have

caused bleeding when they first occurred, as well as burning

during urination. Further, there would not necessarily be blood

on the victim’s underwear given the injuries and reported

bleeding. Rather, “[t]he way that it’s hidden up in these tis-

sues,” it was possible that “when [she] wiped over it, it opened

it up again or that that blood had sort [sic] been tucked up in

that tissue.”

The pediatrician stated the observed injuries could be con-

sistent with digital or penile penetration of the vagina. On

cross-examination, the pediatrician conceded it was “possible”

the observed injuries were caused by acts that were not “crimi-

nal or nefarious.”

8. Defense Expert Witness

The defense called as an expert witness the sexual assault

nurse examiner, who was also a nurse practitioner with a

doctorate degree in nursing. The expert works as the assistant

manager of a forensic assessment consultation and treatment

program. She had reviewed the police records, a transcript of

the forensic interview, the medical records from the hospital,

and the medical records from the forensic examination.

The expert testified that redness is a nonspecific finding

that “really holds no significance to the exam.” She observed

no physical injuries from the photographs taken during the

examination.

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The expert stated that if there was blood observed after

urinating, she would expect blood cells would be detected in

a urinalysis. A urinalysis had been completed at the hospital.

The expert stated that if she remembered correctly, “the blood

was negative, the urine was clear. And then I believe there

were minimal whites, which is white blood cells, and then red

blood cells were present.”

Based on her review of the records, the expert opined

there was no injury indicative of sexual abuse. On cross-­

examination, the expert admitted that it is possible for a sexual

assault not to cause any injuries.

9. Jury Instruction Conference

and Closing Arguments

Wood’s trial counsel did not object to any of the jury instruc-

tions or the verdict form and did not submit any additional pro-

posed instructions. During closing arguments, the prosecution

pointed out the victim’s physical injuries and made the follow-

ing argument with respect to the DNA evidence:

We had DNA evidence. Sure, I think it was pointed

out by one of the defense attorneys during their cross-

examination maybe in 100 years we’ll finally catch up to

CSI and all of the other television shows. Fair enough.

But we know that there was male DNA on the external

genital swabs that were collected from [the victim] during

[the victim’s] exam. There shouldn’t be male DNA on the

external area of an eight-year-old’s vagina.

We also know that . . . Wood’s DNA is on [the vic-

tim’s] underwear, the underwear she was wearing imme-

diately before, immediately after the assault happened.

The prosecution also pointed out that disclosure of a sexual

assault is a process that does not necessarily happen all at once

or in a perfect chronological retelling. The prosecution pointed

out that the victim was a child who did not know about sexual

intercourse and who had no experience to assist in processing

this trauma. Despite this, she was expected to talk about the

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assault and then have a pediatrician examine her “on a part of

her body that isn’t normal for an eight-year-old girl to have

examined.” Lastly, the prosecution described the testimony

indicating the victim’s changes in behavior and demeanor after

the assault.

Trial counsel emphasized in closing arguments the burden of

proof. Trial counsel pointed out that the victim had told three

different stories and that there were multiple inconsistencies in

her statements about the alleged assault. In fact, trial counsel

had counted the inconsistencies to be “into the teens.” Trial

counsel asserted, “It’s easy to remember the truth. It’s very

hard to remember a lie.”

Trial counsel also emphasized that its expert found no injury

demonstrating sexual assault and that the presence of epithelial

cells in underwear worn overnight while in Wood’s “messy

apartment” was not incriminating, given that the cells can be

transferred via surfaces.

III. ASSIGNMENTS OF ERROR

Wood assigns that the district court erred when it (1) denied

his motion that a DNA expert be appointed, (2) refused to

allow Wood to refresh the victim’s recollection by having her

watch the video of her forensic interview, and (3) prohibited

Wood from asking the victim’s mother if Price, who was

Wood’s employer, was a convicted felon.

Wood assigns that trial counsel was ineffective in (1) fail-

ing to request a lesser-included instruction of attempted first

degree sexual assault of a child, (2) “Failing to Investigate the

Case Fully,” (3) presenting “Virtually No Evidence in Support

of his Motion to Employ an Expert Witness and for Payment

of the Same,” (4) failing to object to “Clearly Irrelevant and

Unduly Prejudicial Testimony About DNA Testing Results

with No Statistical Significance,” (5) failing to object to the

biologist’s “Testimony” regarding the Y-STR DNA testing

conducted by her supervisor, (6) offering exhibit 20, (7) “in

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his Cross-Examination” of the victim, and (8) “in his Cross-

Examination” of the forensic interviewer.

IV. STANDARD OF REVIEW

[1] The right of an indigent defendant to the appointment of

an expert witness at the State’s expense generally rests in the

discretion of the trial court. 1

[2,3] In proceedings where the Nebraska Evidence Rules

apply, the admissibility of evidence is controlled by the

Nebraska Evidence Rules and judicial discretion is involved

only when the rules make discretion a factor in determining

admissibility. 2 Where the Nebraska Evidence Rules commit the

evidentiary question at issue to the discretion of the trial court,

an appellate court reviews the admissibility of evidence for an

abuse of discretion. 3

[4,5] The fact that an ineffective assistance of counsel claim

is raised on direct appeal does not necessarily mean that it can

be resolved on direct appeal; the determining factor is whether

the record is sufficient to adequately review the question. 4 The

record is sufficient to resolve on direct appeal a claim of inef-

fective assistance of counsel if the record affirmatively proves

or rebuts either deficiency or prejudice with respect to the

defendant’s claims. 5

V. ANALYSIS

Wood asserts on appeal three errors by the trial court and

numerous alleged acts of ineffective assistance by his trial

counsel. Wood argues the court erred by denying his pretrial

motion that a DNA expert be appointed and, alternatively,

1

State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000); State v. Quezada, 20

Neb. App. 836, 834 N.W.2d 258 (2013).

2

State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).

3

Id.

4

See State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).

5

See id.

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that defense counsel was ineffective for presenting “Virtually

No Evidence” in support of the motion for appointment of

a DNA expert. Wood argues the court erred during trial in

prohibiting defense counsel from eliciting testimony from

the victim’s mother that Price was a convicted felon in order

to impeach Price’s out-of-court statements. Wood argues the

trial court erred by sustaining the prosecution’s objection to

any further use of the forensic video to refresh the victim’s

recollection. Relatedly, he asserts defense counsel was inef-

fective in the manner the victim was cross-examined. Defense

counsel was also allegedly ineffective in cross-examining the

forensic examiner about the victim’s interview statements.

Wood claims defense counsel failed to “Investigate the Case

Fully” and mishandled the evidence relating to the DNA test-

ing of the swabs from the medical examination. Finally, Wood

argues defense counsel was ineffective by failing to request an

instruction on the lesser-included offense of attempt.

1. Failure to Appoint DNA Expert and

Alleged Ineffectiveness in Trial

Counsel’s Lack of Support

for Its Motion

The right of an indigent defendant to the appointment of an

expert witness at the State’s expense generally rests in the dis-

cretion of the trial court. 6 Neb. Rev. Stat. § 27-706(1) (Reissue

2016) provides, in part:

The judge may on his own motion or on the motion of

any party enter an order to show why expert witnesses

should not be appointed, and may request the parties to

submit nominations. The judge may appoint any expert

witnesses agreed upon by the parties, and may appoint

witnesses of his own selection.

Under § 27-706(2), “Expert witnesses so appointed are entitled

to reasonable compensation in whatever sum the judge may

6

State v. Baue, supra note 1.

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allow. The compensation thus fixed is payable from funds

which may be provided by law in criminal cases . . . .”

We have repeatedly held that the right of an indigent defend­

ant to the appointment of an expert witness at the State’s

expense generally rests in the discretion of the trial court. 7

Wood asserts the trial court abused its discretion because deny-

ing his request for appointment of a DNA expert violated his

rights to procedural due process.

The U.S. Supreme Court has said that “when a State brings

its judicial power to bear on an indigent defendant in a crimi-

nal proceeding, it must take steps to assure that the defendant

has a fair opportunity to present his defense,” and that “justice

cannot be equal where, simply as a result of his poverty, a

defendant is denied the opportunity to participate meaningfully

in a judicial proceeding in which his liberty is at stake.” 8 The

Court stated, “[A] criminal trial is fundamentally unfair if the

State proceeds against an indigent defendant without making

certain he has access to the raw materials integral to the build-

ing of an effective defense.” 9 The State need not purchase for

the indigent defendant all the assistance wealthier counterparts

might buy, 10 but the “‘basic tools of an adequate defense or

appeal’” must be provided to those defendants who cannot

afford to pay for them. 11

In Ake v. Oklahoma, 12 and McWilliams v. Dunn, 13 the Court

held that an indigent defendant has a constitutional right

7

Id.

8

Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 84 L. Ed. 2d 53

(1985).

9

Id., 470 U.S. at 77.

10

See id. See, also, Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed.

2d 341 (1974).

11

Ake v. Oklahoma, supra note 8.

12

Id.

13

McWilliams v. Dunn, ___ U.S. ___, 137 S. Ct. 1790, 198 L. Ed. 2d 341

(2017).

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to access to an expert in psychiatry after the defendant has

made a preliminary showing that the defendant’s sanity at

the time of the offense is “likely” to be “a significant fac-

tor in his defense.” 14 It found the need for an independent

expert psychiatrist necessarily followed from a showing of

such materiality, because psychiatry is not an “exact science”

and “psychiatrists disagree widely and frequently,” so jurors

“must resolve differences in opinion within the psychiat-

ric profession on the basis of the evidence offered by each

party.” 15 Thus,

without the assistance of a psychiatrist to conduct a pro-

fessional examination on issues relevant to the defense,

to help determine whether the insanity defense is via-

ble, to present testimony, and to assist in preparing the

cross-examination of a State’s psychiatric witnesses,

the risk of an inaccurate resolution of sanity issues is

extremely high. 16

The U.S. Supreme Court elaborated that a qualified mental

health expert must be “sufficiently available” to the defense

and “independent from the prosecution” in order to effectively

“‘assist in evaluation, preparation, and presentation of the

defense.’” 17 While the Court has recognized the simplest way

to achieve this goal is to provide a qualified expert retained

specifically for the defense team, it has declined to address

whether appointment of an expert for the defense is always

required when sanity is likely to be a significant factor in the

accused’s defense. 18

14

Ake v. Oklahoma, supra note 8, 470 U.S. at 86.

15

Id., 470 U.S. at 81.

16

Id., 470 U.S. at 82.

17

McWilliams v. Dunn, supra note 13, 137 S. Ct. at 1800, quoting Ake v.

Oklahoma, supra note 8.

18

McWilliams v. Dunn, supra note 13.

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[6] The Court explained that access to an expert with State

funds is at its foundations analyzed under the three factors

of procedural due process set forth in Mathews v. Eldridge 19:

First, the private interest that will be affected by the offi-

cial action; second, the risk of an erroneous deprivation of

such interest through the procedures used, and the probable

value, if any, of additional or substitute procedural safe-

guards; and finally, the government’s interest, including the

function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would

entail. 20 While the Court recognized the State may suffer

some financial burden in providing defense access to an inde-

pendent psychiatrist at its expense, in circumstances where a

defendant’s mental condition is at issue and relevant to cul-

pability or punishment, this financial burden is outweighed

by both the State’s and the defendant’s interests in fair and

accurate adjudications of criminal cases—given the complex-

ity of the determination for which such expert testimony can

be crucial. 21

These procedural due process standards have since been

applied by Nebraska courts, 22 as well as by both federal

19

Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

20

Id.

21

See Ake v. Oklahoma, supra note 8.

22

See, State v. George, 264 Neb. 26, 645 N.W.2d 777 (2002); State v. Jacob,

253 Neb. 950, 574 N.W.2d 117 (1998), abrogated on other grounds,

State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012); State v. Grimes,

246 Neb. 473, 519 N.W.2d 507 (1994), overruled on other grounds, State

v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998); State v. White, 244

Neb. 577, 508 N.W.2d 554 (1993), overruled on other grounds, State v.

Burlison, supra note 22; State v. Boppre, 234 Neb. 922, 453 N.W.2d 406

(1990); State v. Lesiak, 234 Neb. 163, 449 N.W.2d 550 (1989); State v.

Suggett, 200 Neb. 693, 264 N.W.2d 876 (1978); State v. Quezada, supra

note 1; State v. Turco, 6 Neb. App. 725, 576 N.W.2d 847 (1998); State v.

Doremus, 2 Neb. App. 784, 514 N.W.2d 649 (1994).

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courts 23 and courts in other states, 24 to a variety of other fields

of expert knowledge shown likely to be a significant factor

to the accused’s defense. The U.S. Supreme Court has not

spoken on the question of other areas of scientific knowledge,

declining in Caldwell v. Mississippi 25 to consider a trial court’s

refusal to appoint fingerprint and ballistics experts, because the

defendant had “offered little more than undeveloped assertions

that the requested assistance would be beneficial.”

[7] We agree with the Eighth Circuit that “[t]here is no

principled way to distinguish between psychiatric and non-

psychiatric experts,” inasmuch as an expert in any field of

expertise may, under the circumstances, be a “‘basic tool[] of

an adequate defense’” or appeal. 26 With respect to a defense

request for the appointment of an expert independent of the

prosecution, “[t]he question in each case must be not what field

of science or expert knowledge is involved, but rather how

important the scientific issue is in the case, and how much help

a defense expert could have given.” 27

23

See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed.

2d 231 (1985); Scott v. State of La., 934 F.2d 631 (5th Cir. 1991); Terry

v. Rees, 985 F.2d 283 (6th Cir. 1993); Little v. Armontrout, 835 F.2d 1240

(8th Cir. 1987); Dunn v. Roberts, 963 F.2d 308 (10th Cir. 1992); Moore v.

Kemp, 809 F.2d 702 (11th Cir. 1987).

24

See, e.g., Ex parte Moody, 684 So. 2d 114 (Ala. 1996); Doe v. Superior

Court, 39 Cal. App. 4th 538, 45 Cal. Rptr. 2d 888 (1995), disapproved on

other grounds, James G. v. Superior Court, 80 Cal. App. 4th 275, 95 Cal.

Rptr. 2d 135 (2000); Bright v. State, 265 Ga. 265, 455 S.E.2d 37 (1995);

People v. Lawson, 163 Ill. 2d 187, 644 N.E.2d 1172, 206 Ill. Dec. 119

(1994); State v. Coker, 412 N.W.2d 589 (Iowa 1987); State v. Moore, 321

N.C. 327, 364 S.E.2d 648 (1988); State v. Mason, 82 Ohio St. 3d 144,

694 N.E.2d 932 (1998); Rogers v. State, 890 P.2d 959 (Okla. Crim. App.

1995); State v. Rogers, 313 Or. 356, 836 P.2d 1308 (1992); Rey v. State,

897 S.W.2d 333 (Tex. Crim. App. 1995); Husske v. Com., 252 Va. 203, 476

S.E.2d 920 (1996).

25

Caldwell v. Mississippi, supra note 23, 472 U.S. at 323-24, n.1.

26

Little v. Armontrout, supra note 23, 835 F.2d at 1243.

27

Id.

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(a) No Preliminary Showing of

Necessity Supporting Motion

[8] The State does not contest that defendants may, depend-

ing on the circumstances, have a procedural due process right

to appointment of a DNA expert. It asserts the district court did

not abuse its discretion in finding Wood failed to demonstrate

the need for such an appointment. We agree. “Courts uni-

formly stress that the showing of need must set forth in detail

what assistance is being requested and why it is needed.” 28

Some reasonable preliminary showing by the defense justify-

ing its request for the appointment of an expert is necessary

because the criminal justice system cannot afford defense

experts on “demand.” 29

[9,10] The determination of whether a defendant has made an

adequate showing of the reasonable necessity for an appointed

expert lies within the discretion of the trial judge. 30 A district

court abuses its discretion when its reasoning or rulings are

clearly untenable, unfairly depriving a litigant of a substan-

tial right and denying a just result in matters submitted for

disposition. 31 The district court did not abuse its discretion in

finding that Wood’s trial counsel did not make this prelimi-

nary showing.

[11,12] Outside the context of psychiatric expertise, to show

a constitutional right to appointment of an independent expert

at the State’s expense, the accused must timely make a pre-

liminary, particularized showing (1) that an issue involving

specialized knowledge is likely to be a significant factor in

the accused’s defense and (2) that there is a reasonable neces-

sity for the defense to have expert assistance in contesting that

28

3 Wayne R. LaFave et al., Criminal Procedure § 11.2(e) at 745 (4th ed.

2015).

29

See Moore v. Kemp, supra note 23, 809 F.2d at 712.

30

See, e.g., Husske v. Com., supra note 24.

31

See State v. Ralios, 301 Neb. 1027, 921 N.W.2d 362 (2019).

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issue. 32 To be a significant factor, the issue must be one likely

to make a difference as to the outcome if the defendant is suc-

cessful in contesting it. 33

[13] There is a reasonable necessity for appointed expert

assistance if the defendant shows some basis for believing the

issue can only be strongly contested with the assistance of an

appointed expert. 34 A general appeal to the complexity of the

material issue involving specialized knowledge is insufficient

to show need for the appointment of an expert unless the

defendant demonstrates the very nature of the scientific field

suggests ground for challenge—for instance, that it is one filled

with controversy and disputes over methodology. 35 On the

other extreme, where the scientific methodology is well estab-

lished and its application is viewed as largely mechanical, the

defense must show a specific reason, such as the prosecution

expert’s bias or incompetence, for concluding that a defense

expert is needed to assist in a successful challenge to such sci-

entific evidence. 36

32

See, e.g., Cade v. State, 658 So. 2d 550 (Fla. App. 1995); Isaacs v. State,

259 Ga. 717, 386 S.E.2d 316 (1989); State v. Dahl, 874 N.W.2d 348 (Iowa

2016); Sommers v. Com., 843 S.W.2d 879 (Ky. 1992), abrogated on other

grounds, Abbott, Inc. v. Guirguis, 626 S.W.3d 475 (Ky. 2021); State v.

Allen, 77 N.C. App. 142, 334 S.E.2d 410 (1985); Tibbs v. State, 819 P.2d

1372 (Okla. Crim. App. 1991); Davis v. State, 905 S.W.2d 655 (Tex. App.

1995); Husske v. Com., supra note 24. See, also, 3 LaFave et al., supra

note 28.

33

See 3 LaFave et al., supra note 28. See, also, e.g., Dunn v. State, 291 Ark.

131, 722 S.W.2d 595 (1987); Stafford v. Love, 726 P.2d 894 (Okla. 1986).

34

See 3 LaFave et al., supra note 28 (and cases cited therein). See, also, e.g.,

Moore v. Kemp, supra note 23; State v. Scott, 33 S.W.3d 746 (Tenn. 2000);

3 Nancy Hollander et al., Wharton’s Criminal Procedure § 16:2 (14th ed.

2017).

35

See, e.g., Sommers v. Com., supra note 32; 3 LaFave et al., supra note 28.

36

See 3 LaFave et al., supra note 28. See, also, e.g., Scott v. State of La.,

supra note 23; McLeod v. State, 581 So. 2d 1144 (Ala. Crim. App. 1990);

Schultz v. State, 497 N.E.2d 531 (Ind. 1986); State v. Balfa, 506 So. 2d

1369 (La. App. 1987); Johnson v. State, 529 So. 2d 577 (Miss. 1988).

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[14,15] Here, the district court reasoned defense counsel

had failed to demonstrate the DNA evidence could not be

strongly contested through rigorous cross-examination with-

out the assistance of an appointed expert. Sometimes, under

the facts presented, pretrial access to the State’s experts and

their cross-examination at trial will be adequate to contest

the issue. 37 In State v. Turco, 38 the Nebraska Court of Appeals

explained public money need not provide defense counsel with

equipment for a “‘fishing expedition.’” Rather, there must be

some showing by defense counsel that the expert is necessary

for an adequate defense, and the district court did not abuse its

discretion in denying a motion to appoint an expert when the

defendant failed to show why a vigorous cross-examination of

the State’s witnesses would not achieve the same result. 39

[16] Wood argues he was caught in a Catch-22 whereby he

had to employ an expert he could not afford in order to dem-

onstrate the need for the appointment of an expert. This is a

concern discussed by several courts and legal authorities. 40 We

find that a Catch-22 is only created when the burden of the

preliminary showing of necessity is unreasonably high. 41 The

37

See 3 LaFave et al., supra note 28.

38

State v. Turco, supra note 22, 6 Neb. App. at 731, 576 N.W.2d at 852,

quoting United States v. Schultz, 431 F.2d 907 (8th Cir. 1970).

39

See State v. Turco, supra note 22.

40

See, e.g., F.T.C. v. Atlantex Associates, 872 F.2d 966 (11th Cir. 1989);

Yarbrough v. Johnson, 490 F. Supp. 2d 694 (E.D. Va. 2007); U.S. v.

Warner, 62 M.J. 114 (C.A.A.F. 2005); Emily J. Groendyke, Ake v.

Oklahoma: Proposals for Making the Right a Reality, 10 N.Y.U. J. Legis.

& Pub. Policy 367 (2007); Fred Warren Bennett, Toward Eliminating

Bargain Basement Justice: Providing Indigent Defendants With Expert

Services and an Adequate Defense, 58 Law & Contemp. Probs. 95 (Winter

1995); A. Michelle Willis, Comment, Nonpsychiatric Expert Assistance

and the Requisite Showing of Need: A Catch-22 in the Post-Ake Criminal

Justice System, 37 Emory L.J. 995 (1988).

41

See Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in

a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305 (2004).

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defense cannot be asked to support the motion for appoint-

ment of an expert with information that can only be found

by paying for expert assistance the defendant cannot afford.

Neither should the trial court demand defense counsel conduct

a lay investigation outside the bounds of what can be expected

from an attorney of ordinary training and experience. 42 But the

district court did not impose an unreasonably high standard in

finding Wood’s request inadequate.

[17] The defendant does not have a right to the appointment

of an expert every time the material incriminating evidence

adduced by the State involves specialized knowledge. There

must be some particularized preliminary showing either that

cross-examination of the State’s experts was inadequate to the

task of revealing misleading or inadequate information or that

there was a reasonable necessity for an independent expert to

help the defense prepare for effective cross-examination of the

State’s experts. 43

Defense counsel asserted in support of Wood’s motion for

appointment of an expert that the need for an expert was

“apparent” because counsel lacked expertise in DNA testing;

that the jury needed to understand the significance of minor

contributors in a mixture of touch DNA and how touch DNA

“exists in life”; and, without any supporting affidavit or testi-

mony, that there was a phone call giving the defense reason to

question the State’s experts and proof. The district court did

not require Wood to support his motion with expert testimony

or assertions as to what an appointed expert would say, 44 but

found counsel’s unsupported arguments to be insufficient. We

cannot say this was an abuse of discretion.

(b) Ineffective Assistance

[18] Wood alternatively asserts defense counsel was inef-

fective in failing to provide adequate support for the motion

42

See, e.g., Cade v. State, supra note 32.

43

See id.

44

See, e.g., Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980).

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for appointment of a DNA expert. On direct appeal when the

defendant has obtained new counsel, the resolution of inef-

fective assistance of trial counsel claims turns upon the suf-

ficiency of the record to affirmatively prove or rebut the merits

of the ineffective assistance claims. 45 The fact that an ineffec-

tive assistance of counsel claim is raised on direct appeal does

not necessarily mean that it can be resolved. 46 The determining

factor is whether the record is sufficient to adequately review

the question. 47

[19] To prevail on a claim of ineffective assistance of coun-

sel 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 An appellate court may address the two prongs of

this test, deficient performance and prejudice, in either order. 50

[20,21] An appellate court can determine whether the record

proves or rebuts the merits of a claim of ineffective assist­

ance of trial counsel only if it has knowledge of the specific

conduct alleged to constitute deficient performance. 51 Thus,

in order to preserve a claim of ineffective assistance of trial

counsel when new counsel represents the defendant on direct

appeal, the appellant must make specific allegations of the

conduct the appellant claims constituted deficient performance

by trial counsel. 52

[22] In contrast, appellate counsel does not waive a

claim of ineffective assistance of trial counsel by failing to

45

See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

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. Filholm, supra note 45.

50

Id.

51

Id.

52

See id.

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specifically allege and argue prejudice, because doing so would

often require details unlikely to be found in the record or

known to the defendant without further inquiry. 53 It is, never-

theless, advisable for appellate counsel to specifically argue

prejudice if counsel believes the details in the trial record perti-

nent to the prejudice prong of the ineffective assistance inquiry

are sufficient to adequately review the question. Appellate

courts are free to determine on direct appeal the effectiveness

of trial counsel on the prejudice prong if the record affirma-

tively proves or rebuts the claim on that ground. 54

We conclude that Wood has adequately assigned and argued

the issue of his trial counsel’s deficient conduct with respect to

the motion for appointment of an expert, but neither the ques-

tion of deficiency nor of prejudice can affirmatively be proved

or rebutted by the trial record. We have already determined

defense counsel’s motion and support thereof was inadequate

to compel, under procedural due process, the appointment of a

DNA expert. However, defense counsel would only have been

constitutionally ineffective in this regard if adequate support

actually existed.

Wood argues defense counsel could have at least proffered

an affidavit by Wood’s appointed expert sexual assault nurse

examiner. We agree with the State this was unlikely to have

made a difference, because her opinions about the need for a

DNA expert would fall outside the range of her expertise. But

Wood does not limit his allegations to trial counsel’s failure

to proffer the sexual assault nurse examiner’s affidavit. For

instance, he additionally refers to the possibility, reflected in

the discussion at the hearing on the motion, that someone at the

Nebraska State Patrol Crime Laboratory had said no male DNA

was detected on any of the swabs.

53

See id.

54

See, e.g., State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013); State v.

Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004); State v. Cody, 248 Neb.

683, 539 N.W.2d 18 (1995).

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The trial record does not affirmatively prove or rebut

whether there were such grounds to dispute the biologist’s tes-

timony that male DNA was found or whether there were addi-

tional reasons why the opportunity to cross-examine the State’s

experts, without independent expert advice in preparation, was

inadequate to contest the incriminating DNA evidence. Though

the incriminating evidence against Wood was not limited to the

DNA evidence, the DNA evidence, including the presence of

male DNA on the external vaginal swabs, was not insignificant,

and we cannot speculate as to what extent an appointed expert

would have been pivotal in contesting it.

The record does not affirmatively prove or refute whether it

is reasonably probable that effective trial counsel could have

adequately supported the motion or that the appointment of a

DNA expert would have led to a challenge to prejudicial DNA

evidence which could have changed the result of trial. 55 As

such, we do not resolve on direct appeal Wood’s claim that

trial counsel was ineffective in failing to adequately support his

motion for appointment of a DNA expert.

2. Refusal to Allow Impeachment of Price’s

Character as Convicted Felon

[23] Turning back to Wood’s alleged trial errors, we observe

in relation to Wood’s assertion that the trial court erred in

denying his attempt to adduce that Price was a convicted felon

in order to impeach Price’s out-of-court statements, Wood

fails to specify the out-of-court statements he believes to be at

issue. We ordinarily do not scour the record in search of facts

that might support an appellant’s claim. 56 But having read the

entirety of the testimony of the victim’s mother, we find that

there are few potential out-of-court statements which could

be subject to this claim and that the trial court did not abuse

55

See, e.g., State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).

56

See State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018).

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its discretion in sustaining the State’s relevancy objection to

Price’s status as a convicted felon.

[24-27] Neb. Rev. Stat. § 27-806 (Reissue 2016) allows

the credibility of a declarant of a hearsay statement or state-

ment defined in Neb. Rev. Stat. § 27-801(4)(b)(iii), (iv), or (v)

(Cum. Supp. 2020)—statements offered against a party that

are by a person authorized by the party, by the party’s agent

or servant, or by the party’s coconspirator—to be attacked by

any evidence that would be admissible for those purposes if

the declarant had testified as a witness, without any opportu-

nity to deny or explain. 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. 57

Statements offered to show their effect on the listener are not

hearsay. 58 Also, statements are not hearsay to the extent they

are offered for context and coherence of other admissible state-

ments and not for the truth or the truth of the matter asserted. 59

It does not appear that any of Price’s out-of-court statements

were hearsay.

[28,29] Moreover, Price’s out-of-court statements do not

concern matters that were in dispute at trial. The basic premise

underlying impeachment of a witness by evidence of a prior

felony conviction is that any past felony committed by the wit-

ness is to some degree relevant to that individual’s credibility. 60

But credibility of a witness is not at issue when the truth of the

assertions is not in dispute. 61

57

State v. Hassan, 309 Neb. 644, 962 N.W.2d 210 (2021). See, also,

§ 27-801(3).

58

See 2 McCormick on Evidence § 249 (Robert P. Mosteller ed., 8th ed.

2020).

59

See, U.S. v. Ralston, 973 F.3d 896 (8th Cir. 2020); U.S. v. Spencer, 592

F.3d 866 (8th Cir. 2010); State v. Childs, 309 Neb. 427, 960 N.W.2d 585

(2021).

60

See, e.g., State v. Bush, 131 Idaho 22, 951 P.2d 1249 (1997); People v.

Garth, 93 Mich. App. 308, 287 N.W.2d 216 (1979).

61

See State v. Veiman, 249 Neb. 875, 546 N.W.2d 785 (1996).

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[30] The exercise of judicial discretion is implicit in deter-

minations of relevancy, and a trial court’s decision regarding

relevancy will not be reversed absent an abuse of discretion. 62

The trial court did not abuse its discretion in concluding that

Price’s credibility was not relevant to Price’s out-of-court state-

ments adduced during the mother’s testimony.

3. Prohibiting Wood From Further Refreshing

Victim’s Recollection With Video and

Effectiveness of Cross-Examination of

Victim and Forensic Interviewer

We also do not agree with Wood’s assertion that he was

deprived of the right to confrontation by the court’s decision

prohibiting him on the second day of cross-examination of the

victim from further use of the interview video to refresh her

recollection or to impeach her testimony. First, it is unclear that

defense counsel objected below to the trial court’s ruling at all,

and defense counsel certainly did not raise the right to confron-

tation. Therefore, the alleged error was waived. 63

[31] But, for the sake of completeness, we also observe

that the record does not support the alleged error. Under Neb.

Rev. Stat. § 27-611(1) (Reissue 2016), the trial judge shall

exercise reasonable control over the mode and order of inter-

rogating witnesses and presenting evidence so as to make the

interrogation and presentation effective for the ascertainment

of the truth, avoid needless consumption of time, and pro-

tect witnesses from harassment or undue embarrassment. The

Confrontation Clause guarantees an opportunity for effective

cross-examination, but not in whatever way or to whatever

extent the defendant might wish, and trial judges retain wide

latitude to impose reasonable limits on such cross-examination

based on concerns about, among other things, harassment,

62

Sacco v. Carothers, 257 Neb. 672, 601 N.W.2d 493 (1999).

63

See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).

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prejudice, confusion of the issues, the witness’ safety, or inter-

rogation that is repetitive or only marginally relevant. 64

In making its ruling, the trial court agreed with the pros-

ecution that if the defense was trying to refresh the victim’s

recollection in an attempt to impeach her testimony at trial,

defense counsel could do so through other means, such as

through the testimony of the forensic interviewer. It cited to

State v. Molina, 65 in which we held that the court did not abuse

its discretion in refusing to play for the jury a video recording

of a witness as extrinsic evidence of an inconsistent statement,

because its probative value was outweighed by the danger of

unfair prejudice, confusion of the issues, misleading the jury,

or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.

We see nothing amiss in the trial court’s ruling, and we find

no merit to Wood’s arguments that seek to avoid the applicable

standards pertaining to the trial court’s discretion by framing

the error as an act of the guardian ad litem who stopped the

victim from watching the video in its entirety, as had been

ordered. The court was free to order that the victim watch the

remainder of the video, if it had continued to believe that was

a reasonable approach. The court did not err in determining it

was not.

Wood alternatively argues trial counsel was ineffective by

apparently abandoning further attempts to refresh the victim’s

recollection after the court’s ruling and by having impeached

the victim’s every inconsistent statement in an allegedly clumsy

manner that Wood argues bolstered the forensic interviewer’s

testimony that child victims of sexual assault do not always

disclose all the details of an assault in a linear fashion. We

find these contentions of ineffective assistance of counsel are

affirm­atively refuted by the trial record.

64

See State v. Schreiner, 276 Neb. 393, 745 N.W.2d 742 (2008). See, also,

Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).

65

State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).

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[32,33] To show that counsel’s performance was deficient, a

defendant must show that counsel’s performance did not equal

that of a lawyer with ordinary training and skill in criminal

law. 66 In assessing deficiency in counsel’s performance, a court

presumes that counsel “rendered adequate assistance and made

all significant decisions in the exercise of reasonable profes-

sional judgment.” 67

[34-36] Trial counsel’s decisions that amount to reason-

able trial strategy do not constitute deficient performance. 68

Decisions about whether to engage in cross-examination, and

if so to what extent and in what manner, are strategic in nature

and generally will not support an ineffective assistance claim. 69

We do not use perfect hindsight to criticize unsuccessful trial

strategies 70 or second-guess trial strategy. 71

We caution that it is more the exception than the rule that

defense counsel’s strategy can be reasonably inferred from the

trial record on direct appeal. However, given defense counsel’s

cross-examination of the victim and arguments in closing, the

record here is sufficient to demonstrate it was defense coun-

sel’s strategy to undermine the victim’s credibility by point-

ing out her inconsistent statements in describing the details of

the assault.

This was not unreasonable. The assertion that this strat-

egy may have inherently served to bolster the forensic inter-

viewer’s testimony about the way children disclose sexual

assault—which was adduced to reduce any inference that such

inconsistencies impeached the witness’ credibility in the first

place—does not render defense counsel’s cross-examination

66

State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).

67

Strickland v. Washington, supra note 48, 466 U.S. at 690.

68

McKinney v. State, 281 Ga. 92, 635 S.E.2d 153 (2006).

69

Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2003).

70

Id.

71

Calkins v. U.S., 795 F.3d 896 (8th Cir. 2015).

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deficient. Nor was defense counsel constitutionally deficient in

the manner in which the victim’s inconsistent statements were

adduced or by not adducing more inconsistent statements.

We find similarly with respect to Wood’s claim that defense

counsel was deficient in cross-examining the forensic inter-

viewer. The entirety of Wood’s argument with respect to cross-

examination of the forensic interviewer borders on conclusory.

Wood asserts that adducing the victim’s statements that Wood

put his private part in her private part in the bedroom and took

off his clothes “accomplished nothing for Wood” and “bol-

stered” the victim’s testimony. 72 The record reflects that Wood

adduced numerous inconsistent statements and was attempting

to effectuate that strategy during his cross-examination of the

forensic interviewer. The simple assertion that defense counsel

could have performed better is not grounds to conclude defense

counsel was constitutionally deficient.

The record affirmatively refutes Wood’s claims regarding

ineffective assistance of trial counsel in cross-examining the

victim and the forensic interviewer.

4. Ineffective Assistance in Failing to Object

to Inconclusive DNA Testing Results, Offering

Exhibit 20, and Failing to Object to Testimony

Describing Testing Done by Another Forensic

Biologist Who Did Not Testify at Trial

Wood makes several claims of ineffective assistance relating

to the DNA evidence. We will address each in turn.

First, Wood assigns and argues that counsel was ineffective

for failing to object to the biologist’s testimony that male DNA

was present on the external vaginal swabs and that she could

not say with certainty that no male DNA was on the vaginal

or oral swabs. Wood also argues counsel was ineffective in

failing to object to exhibit 18, which shows there was an insuf-

ficient quantity of DNA present on the external vaginal swabs

72

Brief for appellant at 36.

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to obtain any profile to attempt to match with Wood’s profile

or anyone else’s. Wood did not assign as error that defense

counsel was ineffective in failing to object to exhibit 18, and

thus, we will not consider that argument. 73 Exhibit 18 is not

cumulative to the biologist’s testimony stating male DNA was

found. Wood argues the biologist’s testimony was inadmissible

due to its potential to mislead the jurors because the testing of

that male DNA did not lead to conclusive results. For the fore-

going reasons, we find no merit to this argument.

[37,38] An expert does not have to couch his or her opin-

ion in the magic words of “reasonable certainty,” but it must

be sufficiently definite and relevant to provide a basis for the

fact finder’s determination of a material fact. 74 A court should

exclude an expert’s opinion when it gives rise to conflicting

inferences of equal probability, so the choice between them is

a matter of conjecture. 75

Wood relies on State v. Johnson 76 to support his argument

that the biologist’s testimony that male DNA was detected on

the external vaginal swabs was insufficiently definite and rel-

evant. We held in Johnson that the trial court had improperly

admitted, over defense counsel’s objections, irrelevant DNA

testing results, though ultimately the evidentiary error was

harmless. At issue was expert testimony that the defendant’s

DNA profile could be neither included nor excluded from a

mixed DNA sample from one of the victim’s fingernails. The

expert testified the results were inconclusive because there

was only a partial minor profile obtained from the samples;

however, the expert revealed that some of the defendant’s

alleles matched those found in the partial minor profile of

one of the samples. The expert could not determine the sex of

73

See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).

74

State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

75

Id.

76

Id. See, also, State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).

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the minor contributor. The expert also testified that there may

have been a minor contributor’s DNA on one of the finger-

nails and that she could not draw any conclusions about the

partial minor profile she found on a sample of the rope used

in the crime. 77

[39,40] We held in Johnson:

Presenting this evidence without offering any statistical

relevance of the matching alleles she found, or the prob-

ability that the minor profile would exclude a random per-

son, suggested to the jury that [the defendant] was linked

to the evidence and that the proof would be even stronger

if investigators had found more DNA. 78

We explained that the potential precision of DNA testing is

well known; thus, jurors might wrongly assume, absent evi-

dence of statistical relevance, that any DNA profile match is

extremely unlikely and therefore extremely probative. 79 We

held that because of the significance that jurors will likely

attach to DNA evidence, the value of inconclusive testing

results without statistical relevance is substantially outweighed

by the danger that the evidence will mislead the jurors. 80

Here, the biologist’s testimony that male DNA was present

on the external vaginal swabs taken during the physical exami-

nation of the victim is not analogous to the evidence found in

Johnson to be lacking in probative value. The biologist conclu-

sively testified that male DNA was present. We disagree with

Wood’s supposition that conclusive evidence of the presence of

male DNA was nevertheless insufficiently certain and was mis-

leading because further DNA testing could not obtain a DNA

profile from it.

[41] In an alleged sexual assault described by a female vic-

tim as involving her genital area and a male perpetrator, the

77

State v. Johnson, supra note 74.

78

State v. Johnson, supra note 74, 290 Neb. at 882, 862 N.W.2d at 773.

79

State v. Johnson, supra note 74.

80

See id.

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presence of male DNA near the victim’s genital area is relevant

to whether the assault occurred as the victim described, and

such evidence is not outweighed by a danger of confusing the

issues or misleading the jurors even if the DNA is of insuf-

ficient quantity or quality to obtain a profile. 81 Here, the pres-

ence of male DNA on the external vaginal swabs of the victim’s

external vaginal area made the truth of the victim’s allegations

more probable, even if the DNA did not identify Wood specifi-

cally. Because the testimony concerning the presence of male

DNA on the external vaginal swabs was admissible, defense

counsel was not deficient at trial for failing to object to it.

We also find the biologist’s testimony acknowledging the

hypothetical possibility of the presence of male DNA that she

was unable to detect on other swabs distinguishable from the

testimony in Johnson that there may have been a minor con-

tributor. 82 The biologist simply acknowledged she could not

“say definitively, no, there’s no DNA present. It just wasn’t in

great enough amounts to be detected using this form of test-

ing.” Such testimony did not call for speculation but merely

affirmed that simply because something microscopic cannot be

detected by the current scientific methods available that does

not mean it does not exist.

The record affirmatively refutes Wood’s claim that counsel

was ineffective in failing to object to the biologist’s testimony

that he alleges was insufficiently certain and definite.

Wood also assigns and argues with respect to the DNA

evidence that defense counsel was ineffective by introducing

exhibit 20, the report of the Y-STR DNA testing showing that

no Y-STR DNA profile was found from the male DNA, and by

failing to object to the biologist’s testimony about those test

results, on the grounds of confrontation, because they were not

81

See Rodriguez v. State, 158 N.E.3d 802 (Ind. App. 2020). See, also, In

re Brandon P., 2013 IL App (4th) 111022, 992 N.E.2d 651, 372 Ill. Dec.

809 (2013). But see State v. Gutierrez, 391 Wis. 2d 799, 943 N.W.2d 870

(2020).

82

See State v. Johnson, supra note 74.

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conducted by her. We find the record affirmatively refutes this

claim of ineffective assistance of counsel.

In light of the admissibility of the presence of male DNA on

the external vaginal swabs, it is reasonably apparent from the

record that defense counsel’s strategy in introducing exhibit

20 and in not objecting to the biologist’s testimony pertaining

to exhibit 20 was to minimize the prejudice of the biologist’s

prior testimony that male DNA was found. By introducing

exhibit 20 and not objecting to the biologist’s testimony about

the testing reflected therein, defense counsel demonstrated

that even the most sophisticated testing was unable to detect

a profile from that male DNA, which, notably, was not from

semen. This would have been consistent with minimal amounts

of DNA and allowed defense counsel to argue the jury should

infer that the male DNA found was the result of indirect trans-

fer during the victim’s prolonged presence in Wood’s home. In

light of the presumption that defense counsel made all signifi-

cant decisions in the exercise of reasonable professional judg-

ment, we cannot find that the defense counsel’s decision was

unreasonable.

5. Failure to Investigate Case Fully

[42,43] Wood’s argument that his trial counsel was ineffec-

tive in “Failing to Investigate the Case Fully” is insufficiently

specific. 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. 83 As stated, when

the claim is raised in a direct appeal, the appellant is not

required to allege prejudice; however, an appellant must make

specific allegations of the conduct that he or she claims consti-

tutes deficient performance by trial counsel. 84 Assignments of

error on direct appeal regarding ineffective assistance of trial

counsel must specifically allege deficient performance, and

83

State v. Figures, supra note 2.

84

Id.

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an appellate court will not scour the remainder of the brief in

search of such specificity. 85

We held, in State v. Mrza, 86 that an assignment of error that

trial counsel was ineffective by “‘fail[ing] to adequately inves-

tigate [the defendant’s] defenses’” lacked the specificity we

demand on direct appeal. Wood’s assignment of error is simi-

lar. It lacks any specificity as to what component of investiga-

tion his counsel was allegedly deficient in failing to conduct.

Therefore, we do not address it.

6. Failure to Request

Lesser-Included Instruction

[44,45] Lastly, we consider Wood’s argument that his trial

counsel was ineffective by failing to request an instruction on

the lesser-included offense of attempted first degree sexual

assault of a child. A court must instruct on a lesser-included

offense if (1) the elements of the lesser offense for which an

instruction is requested are such that one cannot commit the

greater offense without simultaneously committing the lesser

offense and (2) the evidence produces a rational basis for

acquitting the defendant of the greater offense and convicting

the defendant of the lesser offense. 87 The Nebraska Supreme

Court has previously held that attempted first degree sexual

assault of a child is a lesser-included offense of first degree

sexual assault of a child. 88

The defense’s expert nurse practitioner testified there were

no injuries indicative of sexual abuse; therefore, according

to Wood, there was a rational basis for acquitting him of

the greater offense and convicting him of the lesser offense.

Under § 28-319.01, as relevant here, a person commits sexual

assault of a child in the first degree when he or she subjects

85

State v. Mrza, supra note 73.

86

See id. at 935, 926 N.W.2d at 86.

87

State v. Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009).

88

See State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).

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another person under 12 years of age to sexual penetration

and the actor is at least 19 years of age or older. Under Neb.

Rev. Stat. § 28-201 (Reissue 2016), a person shall be guilty

of an attempt to commit a crime if that person intentionally

engages in conduct which would constitute the crime if the

attendant circumstances were as he or she believes them to be

or that person intentionally engages in conduct which, under

the circumstances as he or she believes them to be, constitutes

a substantial step in a course of conduct intended to culminate

in his or her commission of the crime. When causing a partic-

ular result is an element of the crime, a person shall be guilty

of an attempt to commit the crime if, acting with the state of

mind required to establish liability with respect to the attend­

ant circumstances specified in the definition of the crime, he

or she intentionally engages in conduct which is a substantial

step in a course of conduct intended or known to cause such

a result. 89 Conduct shall not be considered a substantial step

under this section unless it is strongly corroborative of the

defendant’s criminal intent. 90

There was conflicting evidence whether there were sequelae

of a sexual assault by penetration found during the physical

examination of the victim. The touch DNA was on the vic-

tim’s underwear, and the male DNA detected was outside of

the vaginal opening. But it is apparent from the trial record

that counsel’s strategy was to argue that nothing inappropriate

occurred during the sleepover. It is a valid strategy to obtain

a full acquittal through an “‘all or nothing’ defense.” 91 We

will not second-guess that strategy. The record affirmatively

rebuts Wood’s claim that defense counsel was deficient by

failing to request an instruction on the lesser-included offense

of attempt.

89

§ 28-201.

90

Id.

91

Williams v. State, 353 Ga. App. 821, 830, 840 S.E.2d 32, 39 (2020). See

Druery v. Thaler, 647 F.3d 535 (5th Cir. 2011).

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VI. CONCLUSION

For the foregoing reasons, we find no merit to Wood’s

claims of trial error. We likewise find no merit to Wood’s

claims of ineffective assistance of counsel, with the exception

that we do not reach the merits of his argument that counsel

was ineffective in failing to adequately support his motion for

a DNA expert.

Affirmed.