Nebraska Advance Sheets

STATE v. FILHOLM 763

Cite as 287 Neb. 763

State of Nebraska, appellee, v. 

Mark S. Filholm, appellant.

___ N.W.2d ___

Filed March 28, 2014. No. S-12-759.

1. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of 

ineffective assistance of counsel is a mixed question of law and fact. When 

reviewing a claim of ineffective assistance of counsel, an appellate court reviews 

the factual findings of the lower court for clear error. With regard to the questions 

of counsel’s performance or prejudice to the defendant as part of the two-pronged 

test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. 

Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court’s decision.

2. Criminal Law: 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. 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.

3. 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.

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. The determining factor is whether the record is sufficient to adequately review the question.

5. 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.

6. ____. A generalized and vague assignment of error that does not advise an appellate court of the issue submitted for decision will not be considered.

7. ____. An argument that does little more than to restate an assignment of error 

does not support the assignment, and an appellate court will not address it.

8. Effectiveness of Counsel: Proof: Appeal and Error. An appellant must make 

specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel when raising an ineffective assistance claim on direct 

appeal. General allegations that trial counsel performed deficiently or that trial 

counsel was ineffective are insufficient to raise an ineffective assistance claim on 

direct appeal and thereby preserve the issue for later review.

9. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective 

assistance of counsel claim will not be addressed on direct appeal if it requires an 

evidentiary hearing.
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10. Effectiveness of Counsel: Postconviction: Appeal and Error. In the context 

of direct appeal, like the requirement in postconviction proceedings, mere 

conclusions of fact or law are not sufficient to allege ineffective assistance 

of counsel.

11. 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.

12. Effectiveness of Counsel: Proof. To show prejudice on a claim of ineffective 

assistance of counsel, the defendant must demonstrate a reasonable probability 

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

have been different.

13. Judgments: Appeal and Error. A correct result will not be set aside merely 

because the lower court applied the wrong reasoning in reaching that result.

Petition for further review from the Court of Appeals, 

Inbody, Chief Judge, and Irwin and Riedmann, Judges, on 

appeal thereto from the District Court for Lancaster County, 

Karen B. Flowers, Judge. Judgment of Court of Appeals 

affirmed as modified.

Peter K. Blakeslee for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Cassel, J.

I. INTRODUCTION

Mark S. Filholm was convicted and sentenced for first 

degree sexual assault. On direct appeal, Filholm raised seven 

claims of ineffective assistance of trial counsel. The Nebraska 

Court of Appeals found three of his claims to be without merit 

for failure to allege prejudice.1 We granted further review 

primarily to address whether, on direct appeal, allegations of 

prejudice are required to assert claims of ineffective assistance 

of trial counsel. Because resolution of such claims turns upon 

1 State v. Filholm, No. A-12-759, 2013 WL 4518211 (Neb. App. Aug. 27, 

2013) (selected for posting to court Web site).
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the sufficiency of the record, specific allegations of the deficient conduct are required. But allegations of prejudice are not 

necessary on direct appeal. In these three instances, the record 

is not sufficient to review the claim. We modify the Court of 

Appeals’ decision accordingly, and as so modified, we affirm 

the court’s decision.

II. BACKGROUND

The charges against Filholm arose out of the sexual assault 

of A.B. in her home in the early morning of June 25, 2011. 

The jury returned a verdict finding Filholm guilty of first 

degree sexual assault, and he appealed. Although he had been 

represented by counsel from the Lancaster County public 

defender’s office at trial, Filholm obtained different appellate counsel.

On appeal, Filholm claimed that he received ineffective 

assistance of counsel at trial in seven respects. He claimed 

that his trial counsel was ineffective for failing to (1) consult 

and present the testimony of a DNA expert witness and effectively cross-examine the State’s expert witness, (2) obtain 

video surveillance footage from a bar and interview two witnesses who could establish his presence at that bar on the 

night of the assault, (3) file a motion for new trial alleging 

juror misconduct, (4) call witnesses who could explain the 

presence of A.B.’s DNA on his fingers, (5) object to improper 

refreshing of a witness’ recollection at trial, (6) move for 

mistrial when two of the State’s witnesses used the term 

“victim,” and (7) file a motion in limine to prevent use of the 

term “rape” and take appropriate measures when the term was 

used at trial.

The Court of Appeals rejected Filholm’s ineffective assistance of counsel claims. In several instances, the court concluded either that his claims were without merit or that the 

record was insufficient for review. However, as to three of 

his claims, the court found his allegations “to be insufficient 

because he fails to allege how he was prejudiced by his counsel’s performance.”2

2 Id. at *7.
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Filholm further alleged that his conviction was not supported by sufficient evidence. The Court of Appeals rejected 

this claim and affirmed his conviction and sentence.

Filholm petitioned for further review, which we granted. We 

directed the parties to file supplemental briefs on the necessary 

specificity for allegations of prejudice in ineffective assistance 

of counsel claims made on direct appeal. After supplemental 

briefs were filed, we heard oral arguments. 

III. ASSIGNMENTS OF ERROR

Filholm assigns, reordered, that the Court of Appeals erred 

in (1) finding that he was not denied effective assistance of 

counsel and (2) finding that his conviction was supported by 

sufficient evidence.

IV. STANDARD OF REVIEW

[1] Appellate review of a claim of ineffective assistance of 

counsel is a mixed question of law and fact.3 When reviewing a claim of ineffective assistance of counsel, an appellate 

court reviews the factual findings of the lower court for clear 

error.4 With regard to the questions of counsel’s performance 

or prejudice to the defendant as part of the two-pronged test 

articulated in Strickland v. Washington,

5

 an appellate court 

reviews such legal determinations independently of the lower 

court’s decision.6

[2] 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. 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 

3 State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).

4 Id.

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

(1984).

6 Davlin, supra note 3.
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found the essential elements of the crime beyond a reasonable doubt.7

V. ANALYSIS

1. Ineffective Assistance

of Counsel

[3] Filholm assigns that the Court of Appeals erred in rejecting his ineffective assistance claims, which he was required 

to raise on direct appeal. 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.8

 Although Filholm suggested at oral argument 

that we should abandon this rule, we decline to do so. Thus, 

because Filholm obtained new counsel on direct appeal, he was 

required to raise those claims of ineffective assistance known 

to him or apparent from the record in order to preserve them 

for review.

As noted above, Filholm alleged that his trial counsel 

was ineffective in seven ways. The Court of Appeals found 

that three of these claims lacked merit for failure to allege 

prejudice.

We granted further review primarily to address whether, on 

direct appeal, allegations of prejudice are required to assert 

claims of ineffective assistance of trial counsel. The proposition that, on direct appeal, an appellant is required to allege 

prejudice when claiming ineffective assistance of trial counsel 

appears to have originated from the Court of Appeals’ holding 

in State v. Derr.

9

In Derr, David A. Derr’s direct appeal assigned as error 

several general allegations of ineffective assistance of trial 

counsel. Derr’s brief confessed that it presented no argument, 

but merely asserted that the record was insufficient to address 

the claims. The court’s opinion stated that “Derr [did] not 

7 State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).

8 State v. Ramirez, 284 Neb. 697, 823 N.W.2d 193 (2012).

9 State v. Derr, 19 Neb. App. 326, 809 N.W.2d 520 (2011).
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allege how any of trial counsel’s actions prejudiced him.”10

But the opinion also stated that Derr “failed to allege that any 

of counsel’s actions prejudiced him or, stated another way, 

did not sufficiently allege his ineffective assistance of counsel 

claims.”11 The Court of Appeals concluded that Derr’s failure 

“constrained [it] to find that Derr’s assertions of ineffective 

assistance of counsel [were] without merit.”12 The Court of 

Appeals has cited Derr in two subsequent cases, State v. Kays13

and State v. Warrack,

14 for the proposition that an appellant 

must specifically allege prejudice when claiming ineffective 

assistance of counsel on direct appeal.

To the extent that the Court of Appeals spoke of Derr’s failure to allege prejudice, it was incorrect. We reject the proposition that an appellant is required on direct appeal to allege 

prejudice when claiming ineffective assistance of trial counsel. 

We therefore disapprove State v. Kays15 and State v. Warrack16

to the extent they support such a proposition, and we disapprove State v. Derr17 to the extent it has been applied to that 

effect. Rather, an appellant must make specific allegations of 

trial counsel’s deficient performance.

[4] On direct appeal, the resolution of ineffective assistance 

of counsel claims turns upon the sufficiency of the record. We 

have often said that 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.18 We 

have held in countless cases that the record on direct appeal 

was insufficient for assessing ineffective assistance of counsel 

10 Id. at 329, 809 N.W.2d at 522.

11 Id. at 327, 809 N.W.2d at 521-22.

12 Id. at 327, 809 N.W.2d at 522.

13 State v. Kays, 21 Neb. App. 376, 838 N.W.2d 366 (2013).

14 State v. Warrack, 21 Neb. App. 604, 842 N.W.2d 167 (2014).

15 Kays, supra note 13.

16 Warrack, supra note 14.

17 Derr, supra note 9.

18 State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
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STATE v. FILHOLM 769

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claims.19 This is because the trial record reviewed on appeal is 

“devoted to issues of guilt or innocence” and does not usually 

address issues of counsel’s performance.20

However, in those cases where we determined that the 

record on direct appeal was sufficient to address a claim of 

ineffective assistance of trial counsel, the record itself either 

affirmatively proved or rebutted the merits of the claim. We 

found the record established either that trial counsel’s performance was not deficient,21 that the appellant could not establish 

prejudice,22 or that trial counsel’s actions could not be justified 

as a part of any plausible trial strategy.23 Thus, it is not an 

19 See, e.g., Watt, supra note 18; State v. McClain, 285 Neb. 537, 827 

N.W.2d 814 (2013); State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801 

(2013); State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013); State v. 

Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012); State v. Nolan, 283 

Neb. 50, 807 N.W.2d 520 (2012), cert. denied ___ U.S. ___, 133 S. Ct. 

158, 184 L. Ed. 2d 78; State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 

(2011); State v. Seberger, 279 Neb. 576, 779 N.W.2d 362 (2010); State 

v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010); State v. Robinson, 

278 Neb. 212, 769 N.W.2d 366 (2009); State v. Davis, 276 Neb. 755, 

757 N.W.2d 367 (2008); State v. Jones, 274 Neb. 271, 739 N.W.2d 193 

(2007); State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006); State v. 

Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006); State v. Molina, 271 Neb. 

488, 713 N.W.2d 412 (2006); State v. Gales, 269 Neb. 443, 694 N.W.2d 

124 (2005); State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005); State 

v. Brown, 268 Neb. 943, 689 N.W.2d 347 (2004); State v. Cook, 266 Neb. 

465, 667 N.W.2d 201 (2003); State v. Leibhart, 266 Neb. 133, 662 N.W.2d 

618 (2003); State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003); State v. 

Long, 264 Neb. 85, 645 N.W.2d 553 (2002); State v. McLemore, 261 Neb. 

452, 623 N.W.2d 315 (2001); State v. Hittle, 257 Neb. 344, 598 N.W.2d 

20 (1999).

20 Massaro v. United States, 538 U.S. 500, 505, 123 S. Ct. 1690, 155 L. Ed. 

2d 714 (2003). See, also, State v. Young, 279 Neb. 602, 780 N.W.2d 28 

(2010).

21 See, e.g., Nolan, supra note 19; State v. Hubbard, 267 Neb. 316, 673 

N.W.2d 567 (2004).

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

supra note 18; Hubbard, supra note 21; State v. Cody, 248 Neb. 683, 539 

N.W.2d 18 (1995).

23 See, e.g., State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013); State 

v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on other 

grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
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appellant’s allegations of prejudice that have guided our review 

of ineffective assistance claims on direct appeal, but the allegations of deficient conduct.

[5-8] Filholm was required to specifically assign and argue 

his trial counsel’s allegedly deficient conduct. This arises from 

a fundamental rule of appellate practice. An alleged error must 

be both specifically assigned and specifically argued in the 

brief of the party asserting the error to be considered by an 

appellate court.24 A generalized and vague assignment of error 

that does not advise an appellate court of the issue submitted 

for decision will not be considered.25 Similarly, an argument 

that does little more than to restate an assignment of error 

does not support the assignment, and an appellate court will 

not address it.26 It naturally follows that on direct appeal, 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. We therefore hold that an 

appellant must make specific allegations of the conduct that he 

or she claims constitutes deficient performance by trial counsel 

when raising an ineffective assistance claim on direct appeal. 

General allegations that trial counsel performed deficiently or 

that trial counsel was ineffective are insufficient to raise an 

ineffective assistance claim on direct appeal and thereby preserve the issue for later review.

[9,10] Although our case law makes clear that specific 

allegations of prejudice are required within the context of 

postconviction relief,27 we view such a requirement on direct 

appeal as a waste of time and resources. As we have noted, 

the trial record on appeal is devoted to issues of guilt or 

innocence, not counsel’s performance. Thus, to require an 

appellant to allege prejudice from ineffective assistance on 

24 State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013).

25 State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).

26 Id.

27 See, e.g., State v. Baker, 286 Neb. 524, 837 N.W.2d 91 (2013); State v. 

Jim, 275 Neb. 481, 747 N.W.2d 410 (2008); State v. Harris, 274 Neb. 40, 

735 N.W.2d 774 (2007).
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direct appeal would require him or her to allege facts in 

detail that are likely not within the appellate record or known 

to the defendant without further inquiry. And an ineffective 

assistance of counsel claim will not be addressed on direct 

appeal if it requires an evidentiary hearing.28 We therefore see 

no justification for requiring an appellant to allege prejudice 

when claiming ineffective assistance of trial counsel on direct 

appeal. That said, we emphasize that in the context of direct 

appeal, like the requirement in postconviction proceedings, 

mere conclusions of fact or law are not sufficient.29 Because 

Filholm was required to raise those claims of ineffective 

assistance known to him or apparent from the record, specific 

allegations were required.

We now turn to the merits of Filholm’s ineffective assistance 

of counsel claims. However, before conducting our analysis, 

we recall several general principles pertaining to ineffective 

assistance of counsel.

[11,12] The test for ineffective assistance of counsel is 

well settled. To prevail on a claim of ineffective assistance 

of counsel under Strickland v. Washington,

30 the defendant 

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

the defendant’s defense.31 An appellate court may address the 

two prongs of this test, deficient performance and prejudice, 

in either order.32 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.33

(a) Insufficient Allegations

The Court of Appeals found that three of Filholm’s ineffective assistance of counsel claims lacked merit for failure to 

28 Watt, supra note 18.

29 See State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).

30 Strickland, supra note 5.

31 State v. Marks, 286 Neb. 166, 835 N.W.2d 656 (2013).

32 Id.

33 State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
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allege prejudice. These claims include that his trial counsel was 

ineffective for failing to (1) consult and present the testimony 

of a DNA expert witness and to effectively cross-examine the 

State’s expert witness, (2) obtain video surveillance footage 

from a bar and interview two witnesses who could establish 

his presence at that bar on the night of the assault, and (3) file 

a motion for new trial alleging juror misconduct. The Court of 

Appeals correctly determined that Filholm was not entitled to 

relief on these issues on direct appeal.

[13] But based upon our holding above, we conclude that the 

Court of Appeals erred in reasoning that they failed because of 

insufficient allegations of prejudice. Rather, the record was 

insufficient to resolve these claims. A correct result will not 

be set aside merely because the lower court applied the wrong 

reasoning in reaching that result.34

The State argues that trial counsel could not be deficient 

for failing to file a motion for new trial if Filholm did not tell 

counsel, or allege that he told counsel, about his familiarity 

with a juror in time for trial counsel to file a timely motion. 

Filholm’s complaint was raised on the record only at sentencing. But the record does not disclose when Filholm raised the 

matter with trial counsel. Thus, the record is not sufficient to 

address this claim on direct appeal.

In finding the record to be insufficient to address these 

claims, we make no comment whether these allegations of ineffective assistance would be sufficient to require an evidentiary 

hearing in the context of a motion for postconviction relief. We 

simply decline to reach these claims on direct appeal because 

the record is insufficient to do so.35 We modify the Court of 

Appeals’ decision on those three claims to reflect that the 

record is insufficient to address them.

(b) Insufficient Record

The Court of Appeals determined that the record was insufficient to resolve Filholm’s claim that his trial counsel was 

ineffective for failing to interview witnesses who could have 

34 See State v. Chiroy Osorio, 286 Neb. 384, 837 N.W.2d 66 (2013).

35 See Morgan, supra note 22.
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placed him in A.B.’s home and in her car on June 24, 2011, 

prior to the sexual assault in the early morning of June 25, and 

thereby explain the presence of her DNA on his fingers. We 

agree that the record is insufficient to resolve this claim.

(c) Remaining Claims

(i) Refreshing of Recollection

Filholm alleges that his trial counsel was ineffective for 

failing to object to the refreshing of a witness’ recollection at 

trial. The Court of Appeals determined that Filholm could not 

establish prejudice from this claim, and we agree.

(ii) Use of Term “Victim”

Filholm asserts that his trial counsel was ineffective for 

failing to move for a mistrial after two of the State’s witnesses used the term “victim” despite an order in limine prohibiting them from doing so. The Court of Appeals rejected 

this claim because it concluded that Filholm’s trial counsel 

did not perform deficiently. We find no error in its analysis 

on this issue.

(iii) Use of Term “Rape”

Finally, Filholm alleges that his trial counsel was ineffective 

for failing to take three actions with respect to the term “rape.” 

First, he claims that his trial counsel failed to include the term 

within his motion in limine. Second, he claims that his trial 

counsel failed to make a hearsay objection to A.B.’s statement 

at trial that Filholm had raped her. Third, he argues that his 

trial counsel failed to move to strike A.B.’s statement.

The Court of Appeals found that Filholm did not establish 

prejudice from his trial counsel’s failure to include the term 

“rape” within his motion in limine, and we agree. Although 

the State argues that the court found insufficient allegations of 

prejudice on this issue, we read the court’s opinion as rejecting the claim on the merits. The court also concluded that 

Filholm’s trial counsel did not perform deficiently in failing 

to make a hearsay objection to A.B.’s statement or in failing 

to move to strike her statement. As these actions would have 

ultimately been unsuccessful, we see no error in the Court 
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of Appeals’ conclusion that Filholm did not receive ineffective assistance.

2. Insufficient Evidence

Filholm assigns that there was insufficient evidence to support his conviction. We disagree. As we have already noted, 

the relevant question is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found Filholm guilty of the crime beyond a 

reasonable doubt.36

Filholm was charged with first degree sexual assault under 

Neb. Rev. Stat. § 28-319(1)(a) (Reissue 2008). Under that statute, a person commits the offense if he or she subjects another 

person to sexual penetration without that person’s consent. The 

elements of penetration and absence of consent were undisputed at trial. Thus, this assignment of error turns on whether 

the State presented sufficient evidence to permit a rational jury 

to conclude beyond a reasonable doubt that Filholm was the 

man who sexually assaulted A.B.

A man entered A.B.’s home in the early morning of June 

25, 2011, and awoke her by touching her face. The man’s face 

was covered with a blanket, but he had a beard and smelled 

like cigarettes. Filholm admittedly had “sort of a goatee” 

and smelled strongly of cigarettes when he was apprehended 

by police.

The man removed A.B.’s clothing, digitally penetrated her, 

performed oral sex on her, and had sexual intercourse with her. 

He spoke during the assault, and A.B. recognized the voice as 

Filholm’s because she had known him for several years. He 

then forced her to shower and washed out her mouth and vaginal area. When Filholm was found, his clothing was “significantly wet,” but not in a way that was consistent with having 

urinated himself.

The man left just shortly before A.B.’s family returned 

from the family’s restaurant. Filholm had visited the restaurant sometime that night and, thus, knew that A.B. was most 

likely at home alone. Although the timing of his visit was 

36 See Castillas, supra note 7.
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subject to conflicting evidence, the jury was presented with 

sufficient evidence from which it could conclude that Filholm 

had adequate time to commit the assault prior to the arrival of 

her family.

Finally, DNA samples taken from Filholm’s person and 

clothing revealed A.B.’s DNA on his fingers and Filholm’s 

semen on his underwear and on the outside of his pants.

Filholm argues that “a fair resolution of conflicts in the testimony, a weighing of the evidence, and a drawing of reasonable 

inferences from the facts can only lead to the conclusion that 

reasonable doubt existed as to [his] guilt.”37 But 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.38 We determine only whether, based 

upon the evidence, a rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. It 

could. This assigned error lacks merit.

VI. CONCLUSION

We affirm Filholm’s conviction and sentence. However, we 

reject the Court of Appeals’ proposition that, on direct appeal, 

an appellant must allege prejudice when claiming ineffective 

assistance of counsel. The disposition of ineffective assistance 

claims on direct appeal turns on the sufficiency of the record. 

Thus, an appellant must make specific allegations of trial 

counsel’s deficient conduct. Specific allegations of prejudice 

are not necessary at that stage. We therefore conclude that the 

Court of Appeals applied the wrong reasoning in finding that 

three of Filholm’s ineffective assistance claims lacked merit for 

failure to allege prejudice. Rather, the record was insufficient 

to address those three claims. We modify the court’s decision 

accordingly. Because the Court of Appeals correctly determined that Filholm was not entitled to relief on direct appeal, 

we affirm its decision as so modified.

Affirmed as modified.

37 Memorandum brief for appellant in support of petition for further review 

at 5.

38 Castillas, supra note 7.