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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

STATE v. MADREN

Cite as 28 Neb. App. 533

State of Nebraska, appellee, v.

 James M. Madren, appellant.

___ N.W.2d ___

Filed June 23, 2020. No. A-19-240.

1. Motions for Mistrial: Appeal and Error. Decisions regarding motions 

for mistrial are directed to the discretion of the trial court, and will be 

upheld in the absence of an abuse of discretion.

2. Motions for New Trial: Appeal and Error. The standard of review for 

the denial of a motion for new trial is whether the trial court abused its 

discretion in denying the motion.

3. Trial: Witnesses: Appeal and Error. To establish reversible error due 

to a violation of a sequestration order, a defendant must make a showing 

of prejudice.

4. 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.

5. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

6. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. The relevant question for an appellate court 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

7. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/30/2020 08:08 AM CDT
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STATE v. MADREN

Cite as 28 Neb. App. 533

8. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is 

a question of law.

9. ____: ____. In reviewing claims of ineffective assistance of counsel on 

direct appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and 

whether the defendant was or was not prejudiced by counsel’s alleged 

deficient performance.

10. Motions for Mistrial: Appeal and Error. The decision whether to 

grant a motion for mistrial is within the trial court’s discretion and will 

not be disturbed on appeal in the absence of an abuse of discretion.

11. Motions for New Trial: Appeal and Error. A trial court’s denial of a 

motion for new trial is reviewed for an abuse of discretion.

12. Trial: Juries. Although the presence of a discharged alternate juror in 

the jury room constitutes an unwarranted intrusion upon the jury and is 

to be guarded against, not every such intrusion requires a new trial.

13. Effectiveness of Counsel: Postconviction: Records: Appeal and 

Error. When a defendant’s trial counsel is different from his or her 

counsel on direct appeal, the defendant must raise on direct appeal any 

issue of trial counsel’s ineffective performance which is known to the 

defendant or is apparent from the record. Otherwise, the issue will be 

procedurally barred in a subsequent postconviction proceeding.

14. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining factor is 

whether the record is sufficient to adequately review the question.

15. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of 

ineffective assistance of counsel under Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must 

show that his or her counsel’s performance was deficient and that this 

deficient performance actually prejudiced the defendant’s defense.

16. ____: ____. 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.

17. ____: ____. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the 

result of the proceeding would have been different.

18. Words and Phrases. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

19. Trial: Effectiveness of Counsel: Presumptions: Appeal and Error. In 

determining whether trial counsel’s performance was deficient, there is 

a strong presumption that counsel acted reasonably.
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STATE v. MADREN

Cite as 28 Neb. App. 533

20. Postconviction: Effectiveness of Counsel: Records: Appeal and 

Error. In the case of an argument presented for the purpose of avoiding 

procedural bar to a future postconviction action, appellate counsel must 

present the claim with enough particularity for (1) an appellate court to 

make a determination of whether the claim can be decided upon the trial 

record and (2) a district court later reviewing a petition for postconviction relief to be able to recognize whether the claim was brought before 

the appellate court.

21. Rules of Evidence: Hearsay: Sexual Assault: Minors. Statements 

made by a child victim of sexual abuse to a forensic interviewer in 

the chain of medical care may be admissible under Neb. Rev. Stat. 

§ 27-803(3) (Reissue 2016), even though the interview has the partial 

purpose of assisting law enforcement’s investigation of the crimes.

22. Rules of Evidence: Hearsay: Police Officers and Sheriffs. The fundamental inquiry to determine whether statements, made by a declarant 

who knew law enforcement was listening, had a medical purpose is 

if the challenged statement has some value in diagnosis or treatment, 

because the patient would still have the requisite motive for providing 

the type of sincere and reliable information that is important to that 

diagnosis and treatment.

23. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal 

principles in determining the sentence to be imposed.

24. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, 

(5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the 

amount of violence in the commission of the crime.

25. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

Appeal from the District Court for Douglas County: James 

T. Gleason, Judge. Affirmed.

Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for 

appellant.
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STATE v. MADREN

Cite as 28 Neb. App. 533

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Moore, Chief Judge, and Arterburn and Welch, Judges.

Welch, Judge.

I. INTRODUCTION

James M. Madren was convicted by a jury of first degree 

sexual assault. Madren argues the trial court erred in failing to 

timely discharge an alternate juror, allowing evidence in contradiction to the court’s previous in limine and sequestration 

orders, accepting the jury’s verdict without sufficient evidence 

to convict him, and imposing an excessive sentence. He also 

argues that his counsel was constitutionally deficient and that 

an aggregate of error warrants a reversal. We affirm his conviction and sentence.

II. STATEMENT OF FACTS

Madren was charged with one count of first degree sexual 

assault, a Class II felony. Specifically, the State alleged that 

Madren, being a person 19 years of age or older, subjected 

L.O., a person at least 12 years of age but less than 16 years of 

age, to sexual penetration. The evidence adduced at trial established that Madren was born in August 1981 and that L.O. was 

born in January 2003.

In May or June 2017, L.O.’s father allowed Madren, a 

longtime friend who needed a place to live, to temporarily 

reside with his family. After Madren moved into the family home, Madren and L.O. began spending time together, 

including watching movies or preparing meals for L.O. and 

her brothers. L.O. testified that Madren eventually asked her 

if she would be his girlfriend and that she agreed. L.O. also 

testified Madren began privately referring to L.O. as “‘baby’” 

and began hugging and kissing her and touching her thighs, 

legs, and shoulders over her clothes. L.O. testified that she and 

Madren had sexual intercourse during her freshman year of 

high school. At that time, L.O. was 14 years old and Madren 
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STATE v. MADREN

Cite as 28 Neb. App. 533

was 36 years old. Madren moved out of the family home in 

November 2017.

The State also offered into evidence text messages between 

Madren and L.O., including pictures Madren sent to L.O. while 

he was out of town. After L.O.’s mother discovered the nature 

of L.O.’s relationship with Madren, including L.O.’s admission 

that she and Madren had sexual intercourse, the incidents were 

reported to the police and L.O. was eventually interviewed by 

staff at Project Harmony, a child advocacy center.

During the trial, over Madren’s “foundation” objection, 

L.O.’s mother testified that after L.O. received counseling at 

Project Harmony, she sought treatment for L.O. at the recommendation of L.O.’s therapist, including having L.O. taken in 

for further evaluation and a medical evaluation that was in 

process. L.O.’s mother was allowed to testify about her observations of how L.O.’s condition affects L.O.’s daily life, which 

observations included that L.O. took long periods of time to 

process information; that L.O. struggled with comprehension 

at school; and that when confronted with questions, she would 

delay before answering due to her limitations in processing. 

L.O.’s mother was not allowed to testify as to any specific 

medical diagnosis for L.O.

Following L.O.’s mother’s testimony, a brief recess was 

taken prior to L.O.’s testimony. During the recess, L.O.’s 

mother spoke with L.O. in the courthouse rotunda while 

the two embraced and cried. Due to concern expressed by 

Madren’s counsel that the interaction was seen by some jurors, 

the judge informed the jury that during the recess, there was an 

interaction between L.O.’s mother and L.O. in the rotunda, and 

the court inquired if anyone had seen it. When certain jurors 

responded they had seen the interaction, the court inquired as 

to whether anything about the interaction would impact their 

decision on the evidence received in the courtroom as to which 

all the jurors stated it would not.

After closing arguments, the case was submitted to the 

jury. However, about 1 hour after the case was submitted to 
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STATE v. MADREN

Cite as 28 Neb. App. 533

the jury, Madren’s counsel advised the court that it had failed 

to discharge the alternate juror. As a result, the court informed 

the jury it had failed to remove the alternate juror, apprised the 

alternate juror that she was the alternate, and then dismissed 

her. The district court then instructed the jury to again refer to 

the instructions and asked the jury to start deliberating again 

“from scratch.” The court stated it did not want to inquire to 

what extent the jury had communicated back and forth, but that 

because of the presence of the alternate, the jurors needed to 

begin deliberations as if they started then and without the alternate. Upon being asked if that made sense, the jurors responded 

affirmatively. After the jury was sent back to the jury room to 

deliberate, Madren’s counsel moved for a mistrial on the basis 

of the court’s delayed discharge of the alternate juror, which 

motion was overruled by the court. The jury convicted Madren 

of first degree sexual assault.

After the jury returned its verdict, the district court again 

addressed the jury regarding the alternate juror. Specifically, 

the court inquired whether the jury, in reaching the verdict, had 

considered any conversations or participation of the alternate 

juror while she was in the room, to which the jurors responded 

in the negative. Madren filed a motion for new trial, which 

included allegations that L.O. and her mother were observed 

crying and embracing following L.O.’s mother’s testimony, 

these activities were viewed by the jury, and the viewing of 

said activities by members of the jury was unfairly prejudicial to Madren and prevented him from having a fair trial. 

Madren’s motion for new trial was overruled. The district court 

sentenced Madren to 30 to 38 years’ imprisonment with credit 

for 358 days served.

III. ASSIGNMENTS OF ERROR

Madren’s assignments of error, restated and renumbered, 

are as follows: (1) The court erred in overruling his motion 

for mistrial and motion for new trial on the court’s delayed 

discharge of the alternate juror, (2) the court erred in failing 
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STATE v. MADREN

Cite as 28 Neb. App. 533

to enforce its order in limine, (3) the court erred in failing to 

enforce its sequestration order, (4) the record contains insufficient evidence to convict Madren of violating Neb. Rev. Stat. 

§ 28-319(1)(c) (Reissue 2016), (5) Madren received ineffective 

assistance of counsel at trial in various ways, (6) the accumulation of errors requires a reversal of his conviction and a 

remand of the cause for new trial, and (7) the sentence imposed 

was excessive.

IV. STANDARD OF REVIEW

[1,2] Decisions regarding motions for mistrial are directed 

to the discretion of the trial court, and will be upheld in the 

absence of an abuse of discretion. State v. Briggs, 303 Neb. 

352, 929 N.W.2d 65 (2019). The standard of review for the 

denial of a motion for new trial is whether the trial court 

abused its discretion in denying the motion. Id.

[3] To establish reversible error due to a violation of a 

sequestration order, a defendant must make a showing of 

prejudice. State v. Cottingham, 226 Neb. 270, 410 N.W.2d 

498 (1987).

[4,5] 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. State v. Briggs, supra. An abuse of discretion occurs when a trial court’s decision is based upon reasons 

that are untenable or unreasonable or if its action is clearly 

against justice or conscience, reason, and evidence. Id.

[6] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An 

appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such 

matters are for the finder of fact. State v. Smith, 302 Neb. 154, 

922 N.W.2d 444 (2019). The relevant question for an appellate 

court is whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could 
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STATE v. MADREN

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have found the essential elements of the crime beyond a reasonable doubt. Id.

[7] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court. Id.

[8,9] Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. 

State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). In reviewing claims of ineffective assistance of counsel on direct appeal, 

an appellate court decides only whether the undisputed facts 

contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by 

counsel’s alleged deficient performance. Id.

V. ANALYSIS

1. Alternate Juror

[10,11] Madren first argues the court erred in overruling his 

motion for mistrial and later his motion for new trial relating 

to the court’s late discharge of the alternate juror. The decision whether to grant a motion for mistrial is within the trial 

court’s discretion and will not be disturbed on appeal in the 

absence of an abuse of discretion. State v. Aguilar, 268 Neb. 

411, 683 N.W.2d 349 (2004). Likewise, a trial court’s denial 

of a motion for new trial is reviewed for an abuse of discretion. See State v. Briggs, supra. In either case, we must now 

determine whether the trial court abused its discretion in not 

granting Madren’s motions for failing to timely discharge the 

alternate juror.

[12] The legal framework for a court’s failure to discharge 

an alternate juror was discussed at length by the Nebraska 

Supreme Court in State v. Menuey, 239 Neb. 513, 476 N.W.2d 

846 (1991). After reviewing the constitutional and statutory 

rights to a 12-person jury in relation to a court’s late discharge 

of an alternate juror, the Supreme Court held:
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STATE v. MADREN

Cite as 28 Neb. App. 533

There can thus be no question that the bailiff’s inexplicable misconduct violated defendant’s federal and state 

constitutional rights to a fair and impartial trial. The controlling question becomes whether that violation compels 

reversal of his convictions.

In Simants v. State, 202 Neb. 828, 277 N.W.2d 217 

(1979), the sheriff, who also testified as a material witness, fraternized with the jurors during sequestration. 

The trial court found the communications unwarranted, 

but ruled they did not rise to a level prejudicing the 

accused. In reversing, this court observed that “when 

an improper communication with a juror or jurors is 

shown to have taken place in a criminal case, a rebuttable presumption of prejudice arises and the burden is 

on the State to prove that the communication was not 

prejudicial,” id. at 835, 277 N.W.2d at 221, saying: “The 

foundational basis for the rule of presumptive prejudice 

is that a fair trial in a fair tribunal is a basic requirement 

of constitutional due process. The reasons for the rule 

have been variously expressed by the courts. ‘“The verdict of a jury . . . should represent the concurring judgment, reason and intelligence of the entire jury, free from 

outside influence from any source whatever.”’ Bramlett 

v. State, 129 Neb. 180, 261 N.W. 166 ([1935]).” Simants, 

supra at 836-37, 277 N.W.2d at 222. The Simants court 

also declared that the occurrence of unauthorized private 

communications was forbidden and would invalidate the 

verdict unless it was shown to be harmless error. In 

other words, Simants concluded that not all errors, even 

if of constitutional magnitude, entitle an accused to the 

reversal of an adverse trial result; it is only a prejudicial error, that is, an error which cannot be said to have 

been harmless beyond a reasonable doubt, which requires 

that a conviction be set aside. State v. Hartmann, [239 

Neb.] 300, 476 N.W.2d 209 (1991); State v. Green, 238 

Neb. 492, 471 N.W.2d 413 (1991); State v. Chapman, 
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234 Neb. 369, 451 N.W.2d 263 (1990); Chapman v. 

California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 

(1967). See, also, State v. McDonald, 230 Neb. 85, 430 

N.W.2d 282 (1988).

State v. LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984), 

applied the same doctrine in determining that LeBron had 

not been prejudiced by the fact that two jurors had overheard the judge and his law clerk discussing the case. See, 

also, Sunderland v. United States, 19 F.2d 202 (8th Cir. 

1927) (juror conversing with witness).

In Gandy v. State, 24 Neb. 716, 40 N.W. 302 (1888), 

the court officer having charge of the jury sat in on a 

portion of the jury’s deliberations. The Gandy court, in 

following People v. Knapp, 42 Mich. 267, 3 N.W. 927 

(1879), adopted the rule that the officer’s mere presence 

in the jury room deprived the jury of the opportunity for 

private and confidential discussion and was thus grounds 

for automatic reversal. In so holding, this court wrote in 

Gandy, supra at 727, 40 N.W. at 306: “It is the policy of 

the law that the verdict of every jury shall be reached by 

free and deliberate consultation, without bias or prejudice, 

and be based upon the evidence. The evidence is to be 

carefully weighed, the instructions to the court considered, and a conclusion reached which shall satisfy each 

member of the jury. This can only be had by preventing 

an intrusion for any considerable time by the bailiff, or 

others, while the jury are considering their verdict.”

The same view was reiterated in Cooney v. State, 61 

Neb. 342, 85 N.W. 281 (1901), wherein the sheriff and 

officer having charge of the jury remained with the jury 

during several hours of deliberations. The Cooney court 

found that while neither party participated nor advised 

the jury in any manner, their presence had deprived 

Cooney of a substantial right. However, the Cooney court 

noted that “the presence of” a court officer “or other 

intruder in the jury room for a short time while the jury 
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are deliberating, will [not] in every case vitiate the verdict rendered . . . .” Id. at 344, 85 N.W. at 282. The 

Cooney court thus recognized that not every intrusion 

into the jury room automatically results in prejudice to an 

accused. It is only those intrusions which result in prejudice to an accused, that is, intrusions into the jury room 

by third parties of a nature which cannot be said to have 

been harmless beyond a reasonable doubt, which require 

that a conviction be set aside.

The presence in the jury room of a discharged alternate juror is qualitatively different from the presence 

of a court officer or of a law enforcement officer, as 

occurred in Gandy and Cooney. A court officer might be 

expected to be present to monitor the jury’s discussions 

for some purpose of the court; the presence of a law 

enforcement officer could be expected to inhibit criticism 

of the State’s case. The presence of both a court officer 

and a law enforcement officer increases the inhibitory 

effect. However, a discharged alternate juror represents 

neither the State nor the court. Thus, although the presence of such an alternate in the jury room constitutes an 

unwarranted intrusion upon the jury and is to be guarded 

against, not every such intrusion requires a new trial.

State v. Menuey, 239 Neb. 513, 521-24, 476 N.W.2d 846, 852-

53 (1991).

Based upon the conclusion that an alternate juror’s presence 

only requires a new trial if that juror’s presence prejudiced the 

defendant, the Nebraska Supreme Court went on to explore 

what evidence the court could rightfully consider in determining whether prejudice ensued from the alternate juror’s presence and whether any such prejudice resulted in that case. In 

doing so, the Supreme Court held:

Neb. Rev. Stat. § 27-606(2) (Reissue 1989) provides 

that a juror may not be questioned about any “matter 

or statement occurring during the course of the jury’s 

deliberations,” but may testify regarding whether any 
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“outside influence was improperly brought to bear upon 

any juror.” In State v. Roberts, 227 Neb. 489, 493, 418 

N.W.2d 246, 249 (1988), we held that § 27-606(2) “controls inquiries into the validity of a verdict reached by a 

jury.” The trial judge in State v. LeBron, 217 Neb. 452, 

349 N.W.2d 918 (1984), upon discovering the overheard 

conversation described . . . above, examined the jurors 

to determine whether they were nonetheless capable of 

rendering a fair and impartial verdict and, in refusing 

to declare a mistrial, concluded that there was no prejudice to LeBron. We affirmed. The Missouri courts have 

also found convincing affidavits by jurors establishing 

that they were not influenced by a discharged alternate 

juror’s presence. State v. Scrivner, 676 S.W.2d 12 (Mo. 

App. 1984).

Menuey, 239 Neb. at 524, 476 N.W.2d at 853-54.

Based upon uncontradicted testimony from the jurors that 

the alternate juror’s presence did not influence them, the court 

in Menuey ultimately concluded that the alternate juror’s presence did not prejudice the defendant and that such presence of 

the alternate juror did not require a new trial.

Similar to Menuey, here, the district court discovered that it 

failed to discharge the alternate juror after allowing the jury to 

begin deliberations. Once the error was brought to the court’s 

attention after about 1 hour, the court interrupted the jury, 

discharged the alternate, and instructed the jury to start over 

“from scratch” with its deliberations and to refer to the instructions governing the jury’s duties. In addition, after the jury 

returned its verdict, the court again addressed the matter with 

the jury stating:

Ladies and Gentlemen, I’m going to make additional 

inquiry for the purposes of the record. And this is because 

I had erroneously allowed [the alternate juror] to remain 

with you. I asked you when you went back after I 

excused [the alternate juror] to commence your deliberations anew as if starting from scratch. I will ask you, did 
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any one of you in reaching your verdict consider any of 

the conversations or participation of [the alternate juror] 

while she was with you in the jury room? If any of you 

did, please let me know.

(No audible response.)

THE COURT: None of the jurors having responded, 

the record will show that this is a unanimous verdict of 

this jury. Judgment will be rendered on the verdict.

Pursuant to Neb. Rev. Stat. § 27-606(2) (Reissue 2016), 

the court was allowed to inquire and did inquire into whether 

“any outside influence was improperly brought to bear upon 

any juror” in relation to the alternate juror, and the uncontradicted evidence establishes that the alternate’s presence did not 

influence the jury deliberations and did not prejudice Madren. 

Accordingly, the court did not abuse its discretion in overruling 

Madren’s motion for mistrial or motion for new trial in connection with the court’s original error in failing to timely discharge 

the alternate juror.

2. Order in Limine

Madren next assigns that the district court erred in failing 

to enforce its order with respect to Madren’s motion in limine. 

More specifically, before the commencement of trial, Madren 

made an oral motion in limine to prohibit the State from offering any evidence regarding L.O.’s diagnosis of autism. In 

support of that motion, Madren argued that the State had not 

endorsed any witness who could offer a medical opinion of 

that nature and that persons associated with Project Harmony 

had not met with L.O. long enough to establish any kind of 

diagnosis. In response, the State expressed it intended to offer 

evidence from L.O.’s mother governing her observations of 

L.O.’s problems with comprehension and delays in responding 

as those issues might relate to her ability to testify, but that 

it did not intend to offer evidence of a diagnosis of the cause 

of her condition which was still being studied. The court sustained the motion only to the extent that the court prohibited 
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the mother from identifying the diagnosis, but found that the 

mother was free to describe the conditions she observed which 

led her to have her daughter tested.

At trial, when the victim’s mother began to describe the 

conditions which led her to have her daughter seek medical 

assistance, Madren’s counsel objected by stating, “[I] [a]sk 

for a continuing objection regarding any testimony regarding 

any kind of diagnosis for lack of foundation pursuant to the 

Court’s ruling.” The continuing objection was granted. L.O.’s 

mother went on to describe the problems she had observed 

with her daughter with concentration and mental processing 

and that she was now seeking medical assistance in relation 

to the conditions, but L.O.’s mother did not offer any kind of 

diagnosis consistent with the court’s ruling. Madren’s objection here is that the court erred in not enforcing its prior 

ruling; however, the record very clearly indicates the court’s 

trial rulings were consistent with its pretrial ruling. Because 

L.O.’s mother never provided nor attempted to provide a 

diagnosis in a manner inconsistent with the court’s order in 

limine or counsel’s specific objection at trial, this assignment 

of error fails.

3. Sequestration Order

Madren similarly argues the district court failed to enforce 

its sequestration order in relation to L.O. and her mother. 

Again, the record clearly indicates the court issued a sequestration order directing the jury that any witness who was going 

to testify at trial could not be present when another witness 

testified nor were they allowed to discuss testimony among 

themselves.

Madren argues that following L.O.’s mother’s testimony and 

during a break, L.O.’s mother and L.O. were seen hugging and 

crying outside the courtroom in the rotunda and jurors saw 

the exchange. Madren argues that this was a violation of the 

sequestration order and moved for a mistrial which was subsequently overruled by the court.
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As we previously noted, the decision whether to grant a 

motion for mistrial is within the trial court’s discretion and 

will not be disturbed on appeal in the absence of an abuse of 

discretion. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 

(2004). Here, contrary to Madren’s argument, there is no evidence that L.O. or her mother were discussing the mother’s 

trial testimony in violation of the court’s specific sequestration order and the prosecutor’s very specific admonition to 

L.O. and her mother not to discuss it. The record reflects 

only an emotional exchange between L.O. and her mother 

in the rotunda following the mother’s testimony. Following 

the interaction and Madren’s counsel’s voiced concerns that 

members of the jury saw the interaction, the court asked the 

specific jurors who acknowledged they saw the exchange, “Is 

there anything about that interaction that’s going to affect your 

decision on the evidence received here in the courtroom?” The 

jurors responded, “‘No.’” Because the record does not reflect 

a violation of the sequestration order and because of the trial 

court’s specific inquiry and the response of the jurors relating 

to the interaction, we cannot say the court abused its discretion in failing to grant a mistrial because of this interaction 

between L.O. and her mother during the trial. This assignment 

of error fails.

4. Insufficiency of Evidence

Madren next argues that there was insufficient evidence 

offered at trial to convict him of violating § 28-319(1)(c).

Section 28-319 provides, in relevant part:

Any person who subjects another person to sexual penetration (a) without the consent of the victim, (b) who 

knew or should have known that the victim was mentally 

or physically incapable of resisting or appraising the 

nature of his or her conduct, or (c) when the actor is nineteen years of age or older and the victim is at least twelve 

but less than sixteen years of age is guilty of sexual 

assault in the first degree.
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Because the record clearly establishes that Madren was over 

19 years of age and L.O. was between 12 and 16 years of age 

at the time of the incident, this case against Madren was predicated on whether Madren subjected L.O. to sexual penetration 

during that time. Although he recognizes that L.O. specifically 

testified that Madren penetrated her vagina with his penis, 

Madren argues:

The record reflects that the State’s case against Madren 

was predicated on [L.O.’s] testimony that Madren had 

“sex” with her. . . . The record does not contain corroborative evidence—in the form of medical or testamentary evidence—that confirms or tends to confirm 

[L.O.’s] account. Madren acknowledges that, pursuant 

to § 29-2028, the State was not required to corroborate 

[L.O.’s] testimony; but, Madren contends that, alone, 

[L.O.’s] self-proving testimony regarding the material facts related to the elements of § 28-319(1)(c)—in 

light of her admission on the witness stand that she 

lied regarding the number of times that said sex allegedly occurred and in light of her inability to identify 

when said sex allegedly occurred—was insufficient evidence upon which the trier of fact could rely to determine beyond a reasonable doubt that Madren violated 

§ 28-319(1)(c).

Brief for appellant at 26. Stated differently, Madren’s argument 

is that due to L.O.’s lack of credibility, her testimony should be 

discounted and his conviction set aside.

Yet, as our Supreme Court has continually stated:

In reviewing a criminal conviction for a sufficiency 

of the evidence claim, whether the evidence is direct, 

circumstantial, or a combination thereof, the standard is 

the same: An appellate court does not resolve conflicts 

in the evidence, pass on the credibility of the witnesses, 

or reweigh the evidence; such matters are for the finder 

of fact. The relevant question for an appellate court is 

whether, after viewing the evidence in the light most 
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favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime 

beyond a reasonable doubt.

State v. Dady, 304 Neb. 649, 667, 936 N.W.2d 486, 500-01 

(2019).

Here, although L.O. differed in her testimony with regard 

to the number of times Madren had sexual intercourse with 

her, she unequivocally and consistently testified that, while 

in her bedroom, Madren penetrated her vagina with his penis 

within the short period of time he lived with her family in 

their home. We will not pass on the credibility of or reweigh 

the evidence here. In viewing the evidence in the light most 

favorable to the State, based upon L.O.’s testimony, we find a 

rational trier of fact could have found the essential elements 

of first degree sexual assault beyond a reasonable doubt. 

Madren’s assignment of error fails.

5. Ineffective Assistance of Counsel

Madren next argues that his trial counsel was ineffective in 

(1) failing to offer evidence in support of his motion for new 

trial, (2) failing to object to incriminating “expert” testimony, 

(3) eliciting incriminating evidence against Madren, and (4) 

failing to object to hearsay testimony that established an element of § 28-319(1)(c).

[13-19] When a defendant’s trial counsel is different from 

his or her counsel on direct appeal, the defendant must raise 

on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from 

the record. Otherwise, the issue will be procedurally barred 

in a subsequent postconviction proceeding. State v. Mrza, 302 

Neb. 931, 926 N.W.2d 79 (2019). The fact that an ineffective 

assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining 

factor is whether the record is sufficient to adequately review 

the question. Id. Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 
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Cite as 28 Neb. App. 533

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. State v. Mrza, supra. 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. Id. To show 

prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result 

of the proceeding would have been different. Id. A reasonable 

probability is a probability sufficient to undermine confidence 

in the outcome. Id. In determining whether trial counsel’s 

performance was deficient, there is a strong presumption that 

counsel acted reasonably. Id.

Whether a claim of ineffective assistance of trial counsel 

may be determined on direct appeal is a question of law. Id.

In reviewing claims of ineffective assistance of counsel on 

direct appeal, an appellate court decides only whether the 

undisputed facts contained within the record are sufficient to 

conclusively determine whether counsel did or did not provide 

effective assistance and whether the defendant was or was not 

prejudiced by counsel’s alleged deficient performance. State v. 

Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). We now make 

those determinations for each of Madren’s specific assignments 

of error.

(a) Trial Counsel’s Failing to Offer Evidence 

in Motion for New Trial

Madren first assigns that his trial counsel was deficient for 

failing to offer evidence in connection with his motion for 

new trial. In furtherance of this assignment of error, Madren 

argues that pursuant to Neb. Rev. Stat. § 29-2101 (Reissue 

2016), his trial counsel had the right to request a new trial, 

did make such a motion for new trial, but then failed to present evidence in support of said motion as is contemplated 

in Neb. Rev. Stat. § 29-2102(1) (Reissue 2016). Although 
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Madren is correct in asserting that § 29-2102(1) provides that 

“[t]he grounds set forth in subdivisions (2), (3), and (6) of 

section 29-2101 shall be supported by affidavits showing the 

truth of such grounds, and the grounds may be controverted 

by affidavits,” he does not articulate what, if any, evidence 

his trial counsel failed to produce to support any ground 

for mistrial.

[20] In connection with a claim of ineffective assistance, our 

Supreme Court has stated:

We hold that in the case of an argument presented 

for the purpose of avoiding procedural bar to a future 

postconviction action, appellate counsel must present the 

claim with enough particularity for (1) an appellate court 

to make a determination of whether the claim can be 

decided upon the trial record and (2) a district court later 

reviewing a petition for postconviction relief to be able 

to recognize whether the claim was brought before the 

appellate court.

State v. Abdullah, 289 Neb. 123, 132-33, 853 N.W.2d 858, 866 

(2014). For instance, in Abdullah, the court held that an argument that counsel’s failure to call “‘at least two witnesses that 

[the defendant] informed would be beneficial to his case’” was 

a conclusory and general allegation lacking in specificity and 

serves as “little more than a placeholder” resulting in a failure 

to preserve it for a future postconviction action. 289 Neb. at 

126-27, 133, 853 N.W.2d at 863, 867.

Although Madren argues his counsel was deficient in failing to offer evidence at the motion for new trial in support 

of his motion, he never articulates what evidence his counsel 

should have submitted which would have made a difference. 

Similar to the defendant’s argument of failing to call “witnesses” in Abdullah, Madren’s argument that his trial counsel’s failure to produce “evidence” in connection with his 

posttrial motion without naming what, if any, evidence may 

have supported it meets with the same result. This assignment 

of error fails.
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(b) Trial Counsel’s Failing to Object 

to “Expert” Testimony

Madren next assigns error to his trial counsel’s failure to 

object to certain “incriminating ‘expert’ testimony to explain 

deficiencies in [the State’s] case.” Brief for appellant at 32. 

Specifically, Madren cites to the testimony of L.O.’s mother 

where she explains her observations of L.O., including L.O.’s 

difficulties in processing information for which the mother 

has now sought medical attention and was waiting on a diagnosis; the general testimony of a mental health coordinator at 

Project Harmony, Tiffany Lassek, who testified generally about 

delayed disclosures of assault by children; and testimony of 

an Omaha police officer, who likewise testified about delayed 

sexual assault disclosures by children.

In support of his contentions, Madren argues that Neb. Rev. 

Stat. § 27-702 (Reissue 2016) states: “If scientific, technical, 

or other specialized knowledge will assist the trier of fact to 

understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, 

training, or education, may testify thereto in the form of an 

opinion or otherwise.” He then argues that pursuant to State v. 

Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004), in Nebraska, 

a trial court’s evaluation of expert testimony involves a 

four-step process, which involves determining whether the 

expert witness is qualified, whether the expert’s reasoning 

or methodology is scientifically valid and reliable, whether 

the reasoning or methodology has been properly applied in 

the case, and whether the opinions are more probative than 

prejudicial.

After setting forth that criteria, Madren generally argues that 

with respect to the above-cited persons and testimony:

Madren’s trial counsel did not demand that the State 

qualify any individual as an expert nor did counsel object 

regarding the proffering of expert testimony. [Madren] 

suffered actual prejudice due to counsel’s lack of performance because the State, in its closing argument, relied 
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Cite as 28 Neb. App. 533

extensively on opinion evidence to argue that the jury 

should convict Madren.

Brief for appellant at 32.

We find that the record is sufficient to review these assignments of error. First, as to L.O.’s mother’s testimony, she 

simply testified as to her observations of L.O.’s difficulties 

in processing information for which the mother was seeking 

medical attention. As we discussed above, L.O.’s mother never 

offered an opinion as to what was causing her daughter’s issues 

or a diagnosis of any condition. Accordingly, L.O.’s mother’s 

testimony was not expert testimony, and Madren’s trial counsel was not deficient for failing to object to her testimony on 

that basis.

Regarding Lassek, Madren’s specific objection relates to 

her general testimony governing why victims of sexual assault 

sometimes delay reporting the incident to authorities. Her testimony was not specific to L.O. As to Madren’s specific assignment of error, the record demonstrates Lassek was qualified 

to issue that general opinion, and Madren fails to provide any 

specifics on why that general opinion should have been further 

challenged and on what basis.

Finally, as to the police officer, Madren’s specific objection 

likewise relates to her general testimony governing why sexual 

assault victims sometimes delay in reporting the incident to 

authorities. Her testimony was not specific to L.O. As to 

Madren’s specific assignment of error, the record demonstrates 

the police officer was qualified to issue that specific general 

opinion, and Madren again fails to specifically articulate any 

basis upon which this general opinion should have been further 

challenged. This assignment of error fails.

(c) Trial Counsel’s Eliciting Incriminating 

Evidence Against Client

Madren next challenges his counsel’s line of questioning involving Lassek’s forensic interview of L.O. at Project 

Harmony. During that questioning, the following colloquy 

ensued between defense counsel and Lassek:
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Cite as 28 Neb. App. 533

Q. Okay. Now, do you recall [L.O.] at any point during the interview prior to that break mentioning sexual 

penetration?

A. I don’t believe so.

Q. You don’t remember or you don’t think she did?

A. I don’t think she did.

Q. Okay. So you did ask a question afterwards as to 

whether or not his penis was on the inside or outside of 

her down below; is that right?

A. I did.

Q. Okay. And at that point, after meeting with law 

enforcement, specifically asking that question, then she 

said it was both; is that right?

A. Correct.

Q. Okay. So it wasn’t until after meeting with law 

enforcement that that question was asked, and it was only 

after that question was asked that anything was actually 

mentioned about sexual penetration; is that right?

A. Ye[s].

Madren argues that on direct examination by the State, 

Lassek did not testify that L.O. reported to her that she was 

sexually assaulted. Madren argues his counsel’s own line of 

questioning on cross-examination opened the door to Lassek’s 

testifying that L.O. told her she had been sexually penetrated. 

In response, the State argues that “[t]he implication from 

[Madren’s counsel’s] questions is that L.O. did not disclose 

sexual penetration during the interview, and only did so at the 

prompting of the interviewer,” and that the line of questioning represented a trial strategy or tactic which should not be 

second-guessed by an appellate court. Brief for appellee at 

27-28. Although we understand this argument, we note the 

Nebraska Supreme Court’s statement governing a similar issue 

in State v. McCulloch, 274 Neb. 636, 642-43, 742 N.W.2d 727, 

732 (2007), wherein it held:

We do not, and cannot, determine on direct appeal 

whether defense counsel elicited the evidence at issue 
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pursuant to a reasonable defense strategy because there 

has been no evidentiary hearing to present evidence 

regarding defense counsel’s strategy or lack thereof. 

While in hindsight it appears that defense counsel may 

have helped the State prove an element that the State may 

have failed to adequately prove, without an evidentiary 

hearing to explore defense counsel’s strategy, we cannot 

determine based solely on the record on direct appeal 

that defense counsel’s performance was deficient. Such 

a determination would require consideration of whether 

defense counsel’s actions were reasonable in the context 

of the trial.

Here, we note L.O. separately testified that she was sexually 

assaulted such that the testimony from Lassek does not provide 

the only evidence of the sexual assault. Nevertheless, because 

the record does not disclose whether eliciting this evidence was 

a part of defense counsel’s strategy, we find the record is not 

sufficient to reach this claim.

(d) Trial Counsel’s Failing to Object 

to Hearsay Testimony

Madren’s final assignment of error is that his counsel failed 

to object on hearsay grounds to certain testimony from a nurse 

practitioner and program manager at Project Harmony. She 

testified about her interview with L.O. at Project Harmony. 

Specifically, she testified that L.O. told her she came to Project 

Harmony because she was raped by “James,” a man in his 

thirties who was living at their home, and that by “rape,” she 

meant James placed his penis in her vagina. Madren argues that 

this testimony was hearsay and that his trial counsel was ineffective for failing to object to it.

In support of his assignment, Madren argues that his trial 

counsel failed to put the State to the burden of satisfying Neb. 

Rev. Stat. § 27-803(3) (Reissue 2016), which excepts from 

the hearsay rule statements made for the purpose of medical 

diagnosis or treatment. L.O.’s statements were made to the 

nurse practitioner in connection with her interview of L.O. and 
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as part of her function with Project Harmony. Madren does 

not specifically articulate what, if any, deficiencies there were 

with this testimony which would fail to qualify it for admission under § 27-803(3); instead, he simply argues his counsel 

failed to put the evidence to the test.

[21,22] Contrary to Madren’s assertions, the Nebraska 

Supreme Court has stated: “‘[S]tatements made by a child 

victim of sexual abuse to a forensic interviewer in [the chain 

of medical care] may be admissible under [§ 27-]803(3) even 

though the interview has the partial purpose of assisting law 

enforcement’s investigation of the crimes.’” State v. Jedlicka, 

297 Neb. 276, 286, 900 N.W.2d 454, 464 (2017), quoting State 

v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012). The Nebraska 

Supreme Court further held:

[T]he fundamental inquiry to determine whether statements, made by a declarant who knew law enforcement 

was listening, had a medical purpose is “‘[i]f the challenged statement has some value in diagnosis or treatment, 

[because] the patient would still have the requisite motive 

for providing the type of “sincere and reliable” information that is important to that diagnosis and treatment.’”

Id., 297 Neb. at 286-87, 900 N.W.2d at 464.

As to Madren’s nondescript argument that his trial counsel 

was ineffective for failing to object to the nurse practitioner’s testimony on hearsay grounds, we find the record is sufficient to address this assignment of error. Specifically, we 

find the record indicates that the interview was conducted 

within the chain of medical care for L.O. and that the statements were made with the intent to obtain a medical diagnosis or treatment for her. As such, any objection on hearsay 

grounds would have been overruled and Madren’s counsel was 

not insufficient in failing to object to it. This assignment of 

error fails.

6. Accumulation of Errors

Madren’s next assignment of error is that the accumulation 

of errors mentioned above were not harmless and that, taken 
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together, they demonstrate he did not receive a fair trial. Yet, 

as we have already explained, Madren’s assigned errors were 

lacking in merit and only one claimed error of ineffective 

assistance of counsel has been preserved. This assignment of 

error fails.

7. Excessive Sentence

Madren contends the court abused its discretion by imposing 

an excessive sentence because the court failed to sufficiently 

weigh the sentencing factors.

[23-25] Where a sentence imposed within the statutory 

limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well 

as any applicable legal principles in determining the sentence 

to be imposed. State v. Smith, 302 Neb. 154, 922 N.W.2d 444 

(2019). In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) 

age, (2) mentality, (3) education and experience, (4) social and 

cultural background, (5) past criminal record or record of lawabiding conduct, and (6) motivation for the offense, as well as 

(7) the nature of the offense and (8) the amount of violence 

in the commission of the crime. Id. The appropriateness of a 

sentence is necessarily a subjective judgment and includes the 

sentencing judge’s observation of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding the 

defendant’s life. Id.

Madren was convicted of first degree sexual assault, which 

is punishable by a minimum sentence of 1 year’s imprisonment and a maximum sentence of 50 years’ imprisonment. See 

§ 28-319; Neb. Rev. Stat. § 28-105 (Reissue 2016). Madren 

received a sentence of 30 to 38 years’ imprisonment, which 

falls within the statutory sentencing range.

At sentencing, the court noted it had considered the presentence investigation report, in which Madren scored very high 

in the categories measuring “Procriminal Attitude/Orientation 
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and Antisocial Pattern.” Overall, Madren scored a 26, placing 

him in the high risk category. After reviewing the record, we 

conclude the district court did not consider any inappropriate 

factors for Madren’s sentence. Thus, Madren cannot show the 

court abused its discretion, and this assignment of error fails.

VI. CONCLUSION

For the foregoing reasons, we affirm Madren’s conviction 

and sentence. We further consider and reject Madren’s claims 

of ineffective assistance of trial counsel with the exception of 

his claim that his trial counsel was ineffective for opening the 

door to Lassek’s testifying that L.O. told her that Madren sexually penetrated L.O., which we determine the record on direct 

appeal is insufficient to address.

Affirmed.