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STATE v. LODING

Cite as 296 Neb. 670

State of Nebraska, appellee, v.

Bashir V. Loding, appel

___ N.W.2d ___

Filed May 12, 2017. No. S-16-614.

1. 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.

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

direct appeal, an appellate court decides only questions of law: Are the 

undisputed facts contained within the record 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?

3. Evidence: Appeal and Error. In reviewing 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.

4. 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.

5. Judgments: Appeal and Error. 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. Effectiveness of Counsel: 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.

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

Error. An ineffective assistance of counsel claim is raised on direct 

appeal when the claim alleges deficient performance with enough 

Nebraska Supreme Court Online Library

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

06/30/2017 01:11 AM CDT
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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 will recognize 

whether the claim was brought before the appellate court.

8. 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.

9. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. 

To establish a right to postconviction relief because of counsel’s ineffective assistance, the defendant has the burden, in accordance with 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984), to show that counsel’s performance was deficient; that is, 

counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. To 

show prejudice, the defendant must demonstrate a reasonable probability 

that but for counsel’s deficient performance, the result of the proceeding 

would have been different. A court may address the two prongs of this 

test, deficient performance and prejudice, in either order.

10. Statutes: Rules of the Supreme Court. Just as statutes relating to 

the same subject are in pari materia and should be construed together, 

Nebraska Supreme Court rules should be read and construed together.

11. Attorneys at Law. A passing score on the Multistate Professional 

Responsibility Examination is a substantive requirement for admittance 

to the Nebraska bar.

12. Attorneys at Law: Disciplinary Proceedings. Violations of the standards and rules of professional conduct can subject an attorney to disciplinary proceedings.

13. Attorneys at Law: Effectiveness of Counsel. An applicant for admittance to the Nebraska bar who has demonstrated that he or she lacks the 

required knowledge of his or her ethical obligations is incompetent to 

act as counsel.

14. Attorneys at Law: Words and Phrases. A nonlawyer is any person 

not duly licensed or otherwise authorized to practice law in the State 

of Nebraska.

15. Attorneys at Law: Rules of the Supreme Court. The Nebraska 

Supreme Court rules do not allow a nonlawyer to engage in the practice 

of law.

16. Attorneys at Law: Disciplinary Proceedings. Because the Nebraska 

Supreme Court regards the unauthorized practice of law as a serious 

offense, any unauthorized practice is a nullity.

17. Constitutional Law: Right to Counsel. A complete denial of assistance 

of counsel is a per se violation of a defendant’s right to counsel.
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18. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. 

When reviewing claims of ineffective assistance, an appellate court will 

not second-guess a trial counsel’s reasonable strategic decisions. An 

appellate court must assess the trial counsel’s performance from the 

counsel’s perspective when the counsel provided the assistance.

19. Trial: Attorneys at Law. Defense counsel are not deficient for failing to 

defeat their own legitimate defense theory.

20. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, an appellate court does not pass on the credibility of witnesses. 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.

21. Indictments and Informations: Evidence: Time. The State can present evidence of several violations within a specific timeframe to secure 

one conviction.

22. Sentences: Appeal and Error. In reviewing a sentence imposed within 

the statutory limits, an appellate court considers whether the 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.

23. Sentences. When imposing a sentence, the sentencing court is to consider 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 

involved in the commission of the crime.

24. ____. Traditionally, a sentencing court is accorded very wide discretion 

in determining an appropriate sentence.

Appeal from the District Court for Douglas County: Gregor

M. Schatz, Judge. Affirm

Thomas C. Riley, Douglas County Public Defender, W. 

Patrick Dunn, and Andrew J.K. Johnson for appellant.

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

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

and Funke, J
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Per Curiam

I. INTRODUCTION

In this direct appeal, Bashir V. Loding challenges his conviction for first degree sexual assault of a child. He alleges that he 

received ineffective assistance of counsel, that there was insufficient evidence to support his conviction, and that he received 

an excessive sentence. He presents one issue of first impression: whether representation by a former senior certified law 

student, who was not yet an admitted member of the Nebraska 

bar, although accompanied by an admitted lawyer, constitutes 

per se ineffective assistance of counsel. We conclude that it 

does not. The record is insufficient to address two claims of 

ineffective assistance. Because we find no merit in Loding’s 

other claims, we affirm the judgment of the district court.

II. BACKGROUND

Loding was charged with first degree sexual assault of a 

child. The information filed alleged that on or about May 1 

through September 17, 2015, Loding, a man at least 19 years 

old or older, subjected A.B., a child less than 12 years old, to 

sexual penetration.

1. Evidence at T

Trial was held in April 2016, at which A.B. testified that she 

was born in 2006 and lived in Douglas County, Nebraska. She 

testified that Loding was her mother’s friend and that he was 

43 years old. She testified that Loding would visit her home 

and that beginning in May 2015, he penetrated her anus with 

his penis on multiple occasions. He also penetrated her anus 

and vagina with his fingers on multiple occasions. She was 

able to describe events in detail, what his penis looked like, 

and how after he penetrated her anus, “sometimes [her] pee 

would be brown.” Her older sister corroborated her testimony 

and confirmed that Loding had access to A.B. without her 

mother’s direct supervision.

Several expert witnesses testified as to A.B.’s initial disclosure and explained that her allegations were consistent 
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with her testimony and not unusual for child victims of 

sexual assault.

Loding did not testify in his own behalf or call any 

witnesses.

2. Conviction and 

The jury convicted Loding of first degree sexual assault of 

a child, and the district court sentenced Loding to 35 to 50 

years’ imprisonment with credit for 129 days served.

Loding timely appealed, and we granted the State’s petition 

to bypass review by the Nebraska Court of Appeals.

III. ASSIGNMENTS OF ERROR

Loding assigns, reordered and restated, that (1) he received 

ineffective assistance of counsel when (a) a former senior certified law student, who was not yet an admitted member of the 

Nebraska bar, participated in critical stages of the proceedings, 

(b) he did not validly consent to representation by a certified 

law student, and (c) trial counsel made prejudicial remarks 

during opening statement and closing argument; (2) there was 

insufficient evidence to sustain a guilty verdict; and (3) his 

sentence was excessive.

IV. STANDARD OF REVIEW

[1,2] Whether a claim of ineffective assistance of trial 

counsel may be determined on direct appeal is a question of 

law.1 In reviewing claims of ineffective assistance of counsel 

on direct appeal, an appellate court decides only questions of 

law: Are the undisputed facts contained within the record 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?2

1 State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).

2 Id.
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[3] In reviewing 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.3

[4,5] We will not disturb a sentence imposed within the 

statutory limits absent an abuse of discretion by the trial court.4

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.5

V. ANALYSIS

1. Ineffective Assi

of Counse

[6,7] Loding is represented on direct appeal by different 

counsel than the counsel who represented him at trial. 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.6 An ineffective assistance of counsel claim is raised on direct appeal 

when the claim alleges deficient performance with enough 

particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record 

and (2) a district court later reviewing a petition for postconviction relief will recognize whether the claim was brought 

before the appellate court.7

3 State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016).

4 Id.

5 Id.

6 See State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).

7 See id.
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[8] The fact that an ineffective assistance of counsel claim 

is raised on direct appeal does not necessarily mean that 

it can be resolved.8 The determining factor is whether the 

record is sufficient to adequately review the question.9

[9] To establish a right to postconviction relief because of 

counsel’s ineffective assistance, the defendant has the burden, 

in accordance with Strickland v. Washington,

10 to show that 

counsel’s performance was deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary training 

and skill in criminal law.11 Next, the defendant must show that 

counsel’s deficient performance prejudiced the defense in his 

or her case.12 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.13 A court may address the two prongs of this test, 

deficient performance and prejudice, in either order.14

(a) Per Se Ineffective Assistance 

of Counsel

Loding alleges that he received ineffective assistance of 

counsel because he was represented by a law school graduate who was not a certified senior law student or an admitted 

member of the Nebraska bar. He invites this court to find per 

se ineffective assistance of counsel.

This is an issue of law, and the record is sufficient to 

adequately review this claim. Before we do, we assess the law 

school graduate’s senior certified status.

8 State v. Parnell, supra note 1.

9 Id.

10 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

11 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).

12 Id.

13 Id.

14 Id.
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(i) Senior Certified Status

Loding was represented at trial by a licensed attorney, James 

Schaefer, and the attorney’s son, Robert Schaefer. At one point, 

Robert had been certified to practice law under James’ supervision pursuant to our rules authorizing limited practice of law 

by senior law students.15 Believing that he was still certified 

to practice, Robert participated during voir dire and gave the 

opening statement and closing argument at Loding’s trial in 

April 2016.

But Robert’s status had changed. He graduated from law 

school in the spring of 2015. After graduation, he took both 

the Uniform Bar Examination (UBE)16 and the Multistate 

Professional Responsibility Examination (MPRE).17 He passed 

the UBE but failed the MPRE. And the record is clear that he 

was notified of this failure prior to the April 2016 trial.

The first question is how this affected his senior practice 

certification. The relevant senior practice rule provides that 

senior certification of a law student “shall terminate if the 

student does not take the first bar examination following his 

or her graduation, or if the student takes such bar examination and fails it, or if he or she is admitted to full practice 

before this court.”18

Before applying this rule, however, we must determine 

whether the rule’s use of the term “bar examination”19 applies 

only to the UBE or to both the UBE and the MPRE. The State 

suggests that it is unclear whether failure of the MPRE is a 

terminating event under the rule and argues that “the passing 

of the MPRE is a prerequisite to the ethical practice of law in 

this state but it has nothing to do with the legal ability of the 

attorney.”20 We disagree.

15 See Neb. Ct. R. §§ 3-701 to 3-706 (rev. 2012).

16 See Neb. Ct. R. § 3-101(L) (rev. 2015).

17 § 3-101(J).

18 § 3-705(A) (emphasis supplied).

19 Id.

20 Brief for appellee at 17.
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[10] Just as statutes relating to the same subject are in pari 

materia and should be construed together,21 our rules should 

be read and construed together. “Examination applicants are 

required to pass the MPRE and are required to pass by a combined score the [component parts of the UBE].”22 This rule 

makes it clear that the “bar examination” consists of both the 

UBE and the MPRE and that examination applicants (including Robert) are required to pass both of them. In other words, a 

failure of either the MPRE or the UBE, taken after graduation, 

is a failure of the “bar examination.” Because Robert’s failure 

to pass the MPRE, and thus, the bar examination, was known 

before Loding’s trial, Robert’s certification under the senior 

practice rules had terminated before the trial.

The second question is whether, as the State also argues, 

Robert still met the substantive requirements to provide effective assistance of counsel. In making this argument, the State 

analogizes the passing of the MPRE to the paying of bar 

dues as mere “‘technical licensing requirements’” and argues 

that Robert was “otherwise competent and qualified to act as 

counsel.”23 We disagree.

[11,12] As we have already explained, a passing score on 

the MPRE is a substantive requirement for admittance to the 

Nebraska bar.24 The MPRE measures “examinees’ knowledge 

and understanding of established standards related to the professional conduct of lawyers.”25 These standards guide the 

Nebraska Rules of Professional Conduct to which all licensed 

attorneys within Nebraska are held accountable. Violations of 

21 See Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).

22 Neb. Ct. R. § 3-117(A) (rev. 2013).

23 Brief for appellee at 17. See, also, State v. Vanderpool, 286 Neb. 111, 835 

N.W.2d 52 (2013).

24 See § 3-117(A).

25 Nat. Conf. of Bar Examiners, Multistate Professional Responsibility 

Examination, http://www.ncbex.org/exams/mpre/ (last visited May 3, 

2017).
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these standards and rules of professional conduct can subject 

an attorney to disciplinary proceedings.26

[13] In sum, our standards and rules emphasize the importance of the ethical practice as indicative of an attorney’s legal 

ability. An applicant for admittance to the Nebraska bar who 

has demonstrated that he or she lacks the required knowledge of his or her ethical obligations is incompetent to act 

as counsel.

Having found that Robert lost his status as a senior certified 

law student and failed to meet the substantive requirements to 

be a licensed attorney at trial, we now consider the effect of his 

participation at trial.

(ii) Robert’s Participation 

at Trial

Courts in other jurisdictions have consistently found legal 

representation by an unlicensed individual who did not meet 

the substantive requirements for admittance to the bar, or 

was a layperson posing as an attorney, constitutes per se 

ineffective assistance of counsel.27 In such circumstances, an 

individual is entitled to postconviction relief without proving 

prejudice. As one court explained, “one never admitted to 

practice law and therefore who never acquired the threshold 

qualification to represent a client in court cannot be allowed 

26 See Neb. Ct. R. of Prof. Cond. Scope, comment 19.

27 See, U.S. v. Bergman, 599 F.3d 1142 (10th Cir. 2010), cert. denied 562 U.S. 

887, 131 S. Ct. 219, 178 L. Ed. 2d 132; U.S. v. Mitchell, 216 F.3d 1126 

(D.C. Cir. 2000); U.S. v. Novak, 903 F.2d 883 (2d Cir. 1990); United States 

v. Mouzin, 785 F.2d 682 (9th Cir. 1986), cert. denied sub nom. Carvajal v. 

United States, 479 U.S. 985, 107 S. Ct. 574, 93 L. Ed. 2d 577; Solina v. 

United States, 709 F.2d 160 (2d Cir. 1983); McKeldin v. Rose, 482 F. Supp. 

1093 (E.D. Tenn. 1980), reversed on other grounds 631 F.2d 458 (6th Cir.); 

Huckelbury v. State, 337 So. 2d 400 (Fla. App. 1976); In re Denzel W., 237 

Ill. 2d 285, 930 N.E.2d 974, 341 Ill. Dec. 460 (2010); Benbow v. State, 

614 So. 2d 398 (Miss. 1993); People v Felder, 47 N.Y.2d 287, 391 N.E.2d 

1274, 418 N.Y.S.2d 295 (1979). But see Blanton v. U.S., 896 F. Supp. 1451 

(M.D. Tenn. 1995), rehearing denied 94 F.3d 227 (6th Cir. 1996).
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to do so, and no matter how spectacular a performance may 

ensue, it will not constitute ‘effective representation of counsel’ for purposes of the Sixth Amendment.”28 This is consistent with our treatment of nonlawyers who engage in the 

practice of law.

[14-16] A nonlawyer is “any person not duly licensed or otherwise authorized to practice law in the State of Nebraska.”29

As we have demonstrated, Robert was a nonlawyer at the time 

of trial. Our court rules are clear and firm; they do not allow 

a nonlawyer to engage in the practice of law.30 Because we 

regard the unauthorized practice of law as a serious offense, 

any unauthorized practice is a nullity.31 Obviously, such a nullity cannot satisfy a defendant’s right to effective representation of counsel.

[17] We concede that if Loding had been represented only 

by Robert, he would have been completely denied the right to 

assistance of counsel. A complete denial of assistance of counsel is a per se violation of his right to counsel.

However, other jurisdictions have declined to find per se 

ineffective assistance of counsel when there has been “active

participation of a licensed attorney throughout a defendant’s 

trial.”32 As the Eighth Circuit explained, “[i]f co-counsel provides petitioners with effective assistance at all critical stages 

28 United States v. Mouzin, supra note 27, 785 F.2d at 697.

29 Neb Ct. R. § 3-1002(A).

30 Neb Ct. R. § 3-1003.

31 See Kelly v. Saint Francis Med. Ctr., 295 Neb. 650, 889 N.W.2d 613 

(2017).

32 People v. Jacobs, 6 N.Y.3d 188, 190, 844 N.E.2d 1126, 1127, 811 N.Y.S.2d 

604, 605 (2005) (emphasis supplied). See, also, U.S. v. Novak, supra note 

27; U.S. v. Cocivera, 104 F.3d 566 (3d Cir. 1996); U.S. v. Rimell, 21 F.3d 

281 (8th Cir. 1994), cert. denied 513 U.S. 976, 115 S. Ct. 453, 130 L. Ed. 

2d 362; The People v. Cox, 12 Ill. 2d 265, 146 N.E.2d 19 (1957); Riggs 

v. State, 235 Ind. 499, 135 N.E.2d 247 (1956); State v. Deruy, 143 Kan. 

590, 56 P.2d 57 (1936); Higgins v. Parker, 354 Mo. 888, 191 S.W.2d 668 

(1945), cert. denied 327 U.S. 801, 66 S. Ct. 902, 90 L. Ed. 1026 (1946).
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of the proceedings, [a defendant’s] Sixth Amendment rights 

have been protected.”33 The theory is that effective assistance 

of licensed cocounsel would include correcting any error by 

the unadmitted cocounsel. And, in finding no per se violation 

in circumstances quite similar to those before us, the Eighth 

Circuit relied on its earlier decision in U.S. v. Rosnow.

34

James, a qualified, licensed attorney in Nebraska, was the 

lead attorney for Loding’s trial. It is undisputed that he was 

present at all times throughout the trial and for all interactions 

between Loding and Robert. Thus, there was no per se violation of Loding’s constitutional right to counsel. We now turn 

to consider whether Loding is entitled to relief on his claims 

under Strickland.

(b) Ineffective Assistance 

Under Strickland

(i) Lack of Written Consent

Loding alleges that he received ineffective assistance of 

counsel because James did not secure his written consent to be 

represented by Robert. While this alleges a very serious violation of our court rules,35 there is a disciplinary process established to adjudicate rule violations.36 But that is not the matter 

before us in this appeal. The question here is whether James 

(and Robert, under James’ direction) provided ineffective 

assistance of counsel under Strickland. We conclude that the 

record is not adequate to address this matter on direct appeal.

(ii) Opening Statement and 

Closing Argument

Loding alleges that he received ineffective assistance of 

counsel during opening statement and closing argument. He 

33 U.S. v. Rosnow, 981 F.2d 970, 972 (8th Cir. 1992).

34 See U.S. v. Rimell, supra note 32.

35 See § 3-704(C).

36 See Neb. Ct. R. §§ 3-301 to 3-328 (rev. 2016).
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claims that counsel was ineffective in failing (1) to call on 

A.B.’s mother to testify or explain her absence after stating 

during opening statement she would be called upon, (2) to 

mention during closing argument other individuals who had 

sexually assaulted A.B., and (3) to give a longer closing argument or say more than that Loding was not guilty.

[18] When reviewing claims of ineffective assistance, an 

appellate court will not second-guess a trial counsel’s reasonable strategic decisions.37 And an appellate court must assess 

the trial counsel’s performance from the counsel’s perspective 

when the counsel provided the assistance.38

It is clear from the record that Loding’s trial counsel organized his defense around the theory that A.B. did not like 

Loding and that she made up allegations of sexual assault. This 

was a legitimate strategy aimed at acquitting Loding of the 

charged offense. Therefore, we review Loding’s claims with 

this defense theory in mind.

a. Absence of A.B.’s Mother 

as Witness

As Loding conceded at oral argument, his brief misstated 

the record when he argued that counsel failed to explain why 

A.B.’s mother did not testify. The record shows that Loding’s 

counsel explained, “We said we would call the mother . . . we 

said that in the beginning because we thought the state would 

prove its case, and it has not.”

During closing argument, counsel explained multiple times 

that the burden of proof was on the State to prove beyond a reasonable doubt that Loding was guilty. Counsel then reviewed 

the evidence and explained to the jury why the State had not 

met its burden. Outside the presence of the jury, Loding confirmed on the record that the mother did not want to testify and 

that he did not want her to testify.

37 State v. Alarcon-Chavez, 295 Neb. 1014, ___ N.W.2d ___ (2017).

38 Id.
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But the record does not explain why, during opening statement, counsel elected to tell the jury that A.B.’s mother would 

be called to testify. Although the record shows how the problem was addressed, the record does not show how it came 

about. Under these circumstances, we conclude that the record 

is not sufficient to address this matter on direct appeal.

b. Other Alleged Assault 

Perpetrators

Loding alleges that his trial counsel was ineffective during 

their closing argument for failing to mention two other known 

individuals who had both allegedly sexually assaulted A.B. 

in the past. He does not explain why this should have been 

done, but the implication would seem to be that it could have 

convinced the jury someone other than Loding committed the 

sexual assaults charged in this case. This is in direct conflict 

with Loding’s defense that A.B. made up the allegations of 

sexual assault.

[19] We conclude that defense counsel were not deficient 

for failing to defeat their own legitimate defense theory. As 

to this argument, the record affirmatively shows that Loding’s 

counsel acted reasonably and consistently in presenting his 

defense and were not ineffective.

c. Closing Argument

Loding alleges that his trial counsel was ineffective because 

“closing argument was too short and not much was said other 

than that [Loding] was not guilty.”39 This, too, is clearly refuted 

by the record.

During their closing argument, Loding’s counsel discussed 

the State’s burden of proof, the presumption of innocence, 

perceived conflicts in the State’s evidence, A.B.’s lack of 

credibility, the defense’s theory of the case, the function of 

the criminal justice system, the significance of the jury’s 

39 Brief for appellant at 16.
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role, the magnitude of the charge, and the standard for reasonable doubt. Because there was no deficiency in this argument, the record establishes that Loding’s counsel were not 

ineffective.

2. Sufficiency of E

Loding alleges that there was insufficient evidence to support his conviction. He does not argue that the evidence did 

not establish the elements of the crime. He essentially argues 

that A.B., the one witness to testify to all the elements of the 

crime, was not a credible witness because of her youth, her 

prior history as a sexual assault victim, her dislike of Loding, 

and because she “admitted she was confused about who had 

touched her inappropriately at which times”40 in regard to previous incidents of sexual assault.

[20] But, in reviewing a sufficiency of the evidence claim, 

we do not pass on the credibility of witnesses.41 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.42

Viewed in the light most favorable to the State, and without passing on the credibility of the witnesses, there was sufficient evidence for any rational juror to find Loding guilty 

beyond a reasonable doubt.

[21] Loding also alleges that there was insufficient evidence to determine which of the different circumstances 

of sexual assault was found to be proved by a reasonable 

doubt by all jurors. He argues that such a finding was necessary where he was charged with only one count of sexual assault while the State alleged several different incidents. Because we have consistently held that the State 

40 Id. at 12.

41 See State v. Draper, supra note 3.

42 See id.
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can present evidence of several violations within a specific 

timeframe to secure one conviction,43 this argument is without merit.

3. Excessive Se

Lastly, Loding alleges that he received an excessive sentence, because the court failed to consider all the appropriate 

mitigating factors in imposing the sentence. He was convicted 

of first degree sexual assault of a child—a Class IB felony,44

which is punishable by a mandatory minimum of 15 years’ 

imprisonment and a maximum of life imprisonment.45 He was 

sentenced to 35 to 50 years’ imprisonment with credit for 

129 days served. As such, his sentences are within the statutory limits.

[22,23] In reviewing a sentence imposed within the statutory limits, an appellate court considers whether the 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.46 When imposing a 

sentence, the sentencing court is to consider 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 involved in the commission of the crime.47 The 

district court reviewed the presentence investigation report, 

which addressed all of these matters.

43 See, State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010); State v. 

Martinez, 250 Neb. 597, 550 N.W.2d 655 (1996).

44 Neb. Rev. Stat. § 28-319.01(2) (Reissue 2016).

45 Id. See, also, Neb. Rev. Stat. § 28-105 (Reissue 2016); State v. Russell, 

291 Neb. 33, 863 N.W.2d 813 (2015).

46 State v. Draper, supra note 3.

47 Id.
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Nebraska Supreme Court Advance S

296 Nebraska Report

STATE v. LODING

Cite as 296 Neb. 670

[24] Given that, traditionally, a sentencing court is accorded 

very wide discretion in determining an appropriate sentence,48

we find no abuse of discretion in the sentence imposed.

VI. CONCLUSION

We emphasize that we take very seriously Loding’s complaint that James failed to obtain Loding’s written consent 

to Robert’s participation in the conduct of his trial. Although 

we decline to find a per se violation of the right to effective assistance of counsel, it deserves careful scrutiny under 

Strickland. And we conclude that the record is insufficient 

to do so. Loding’s allegation regarding counsel’s actions 

regarding A.B.’s mother also raises a serious claim of ineffective assistance of counsel. But here again, the record 

is insufficient.

As to Loding’s other allegations of ineffective assistance 

of counsel, the record affirmatively refutes them. And we 

find no merit to his assignments of insufficient evidence and 

excessive sentence. We therefore affirm the judgment of the 

district court.

Affirmed

Kelch, J., not participatin

48 See id.