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State of Nebraska, appellee, v. Alejandro 

Garcia Prado, appellant.

___ N.W.2d ___

Filed October 12, 2021. No. A-20-815.

1. 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.

2. ____: ____. Whether a claim of ineffective assistance of trial counsel 

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

3. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel, the defendant must show that his or her counsel’s 

performance was deficient and that this deficient performance actually 

prejudiced the defendant’s defense.

4. Effectiveness of Counsel: Claims. A claim of ineffective assistance that 

is insufficiently stated is no different than a claim not stated at all.

5. Jurors: Damages. A Golden Rule argument that tells jurors to place 

themselves in the plaintiff’s shoes and award the amount they would 

charge to undergo equivalent disability, pain, and suffering is improper 

because it asks the jurors to place themselves or their loved ones in the 

plaintiff’s position, effectively urging them to become advocates for 

the plaintiff.

6. Juror Qualifications. Parties may not use voir dire to impanel a jury 

with a predetermined disposition or to indoctrinate jurors to react favorably to a party’s position when presented with particular evidence.

7. Effectiveness of Counsel. As a matter of law, counsel is not ineffective 

for failing to make a meritless objection.

8. Evidence: Words and Phrases. Cumulative evidence means evidence 

tending to prove the same point of which other evidence has been 

offered.

Nebraska Supreme Court Online Library

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

10/19/2021 12:07 AM CDT
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9. Trial: Evidence: Appeal and Error. Erroneous admission of evidence 

is harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding 

by the trier of fact.

10. Evidence: Words and Phrases. Evidence which is not relevant is inadmissible. To be relevant, evidence must be probative and material.

11. Rules of Evidence. Under Neb. Rev. Stat. § 27-403 (Reissue 2016), 

relevant evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice.

12. Effectiveness of Counsel: Proof. 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. Right to Counsel: Appeal and Error. An appellate court reviews a 

trial court’s rulings on motions to withdraw as counsel and motions to 

dismiss appointed counsel and appoint substitute counsel for an abuse 

of discretion.

14. Criminal Law: Appeal and Error. A defendant in a criminal case may 

not take advantage of an alleged error which the defendant invited the 

trial court to commit.

15. Motions to Suppress: Confessions: Constitutional Law: Miranda 

Rights: Appeal and Error. In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, including 

claims that it was procured in violation of the safeguards established 

by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 

S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a twopart standard of review. With regard to historical facts, an appellate 

court reviews the trial court’s findings for clear error. Whether those 

facts suffice to meet the constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial 

court’s determination.

16. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prohibits the use of statements derived during custodial interrogation unless 

the prosecution demonstrates the use of procedural safeguards that are 

effective to secure the privilege against self-incrimination.

17. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.

For purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. 

Ed. 2d 694 (1966), interrogation refers not only to express questioning, 

but also to any words or actions on the part of the police (other than 

those normally attendant to arrest and custody) that the police should 

know are reasonably likely to elicit an incriminating response from 

the suspect.
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18. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility.

19. 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.

20. Trial: Evidence. The principle of opening the door is simply a contention that competent evidence which was previously irrelevant is now 

relevant through the opponent’s admission of other evidence on the 

same issue.

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

conviction, 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, and a conviction will be affirmed, in the 

absence of prejudicial error, if the evidence admitted at trial, viewed 

and construed most favorably to the State, is sufficient to support 

the conviction.

22. Sentences: Appeal and Error. When a trial court’s sentence is within 

the statutory guidelines, the sentence will be disturbed by an appellate 

court only when an abuse of discretion is shown.

23. 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.

Appeal from the District Court for Lancaster County: Kevin 

R. McManaman, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, and 

Nathan J. Sohriakoff for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Riedmann, Judge.

I. INTRODUCTION

Alejandro Garcia Prado appeals his conviction and sentence in the district court for Lancaster County for first degree 
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sexual assault. He argues multiple ineffective assistance of 

counsel claims, along with claims that the district court erred 

in both procedural and evidentiary matters. Prado also assigns 

that there was insufficient evidence for his conviction and that 

the sentence imposed was excessive. We affirm.

II. BACKGROUND

On March 9, 2018, the victim, D.A., and her friend, Gwen P., 

each consumed three to four shots of vodka at D.A.’s apartment 

around 11 p.m. before going to a local club at approximately 

midnight. D.A.’s friend, Brenden J., met her at the club with 

two other male friends about 30 minutes later. While at the 

club, D.A., Gwen, and Brenden each consumed more alcohol. 

At approximately 2:30 a.m., the group returned to D.A.’s apartment. D.A., Brenden, Gwen, and one of Brenden’s friends each 

had one to two beers at the apartment, and the group decided 

to order pizza. At 2:44 a.m., the group ordered a pizza delivery, 

for which Brenden paid.

Prado arrived at the apartment to deliver the pizza, at which 

point Brenden informed Prado he did not have cash for a tip 

but offered Prado a beer in lieu of the tip. Prado accepted, 

drank the beer at the door to the apartment, and then offered 

to come back when his shift ended with “a bottle and a pizza.” 

Although Prado testified the group invited him to return, 

Brenden testified that he remembered hinting to Prado that he 

did not need to return, because they were just going to eat the 

pizza and go to bed. Regardless, Brenden and Prado exchanged 

phone numbers, and Prado said he would return in 20 minutes. 

Brenden told Prado that the group was tired and that they 

“probably weren’t gonna be up much longer.” Brenden did not 

receive a phone call from Prado later that night.

The witnesses’ testimonies conflict at this point, but generally, D.A. and her friends testified that Gwen and D.A. went 

to sleep and the three male friends left soon thereafter, somewhere between 4 and 7 a.m. Brenden was the last one out of 

the apartment, and although he believed he would have turned 
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off the apartment lights, he could not confirm that he did. He 

did not believe the music was still playing but was certain that 

he closed the apartment door. He testified that he did not have 

a key to lock the front door from the outside.

Prado testified that he returned to D.A.’s apartment when he 

clocked out of work around 4:30 a.m. According to him, the 

lights and music were still on, so he knocked and “a brunette 

answer[ed] the door” and let him into the apartment. He then 

followed her into the bedroom, where a woman with blond 

hair was lying on the bed. Prado explained that he climbed 

into bed between the two women because he thought, “well, 

hey, if I’m in the middle maybe I might get lucky and have a 

threesome.” Prado claimed that D.A., the woman with blond 

hair, then kissed him and began stroking his genitals over his 

pants. Prado admitted to kissing D.A.’s neck. He claimed that 

D.A. then pulled her pants down, which he believed to be an 

indication that she wanted to have vaginal intercourse with 

him. Prado testified that he began to position himself to have 

intercourse with D.A., but he prematurely ejaculated. D.A. left 

to use the bathroom, and Prado turned his attention to Gwen, 

who told him to leave. He denied he ever put his fingers or 

penis in D.A.’s vagina.

D.A., however, testified that she did not recall hearing a 

knock at the front door or letting anybody into her apartment; rather, she awoke to feeling someone “touching” and 

“caress[ing]” her buttocks. She knew the person touching her 

was lying between her and Gwen on the bed, although she 

could not see who it was because the lights were off. She 

“could feel fingers” moving “in and out of [her] vagina.” 

She explained that she thought the person touching her was 

Brenden, but was confused because they did not have that type 

of a relationship. While this was happening, she was “half 

asleep, half awake.”

Gwen testified that she woke up and heard D.A. making 

“sexual noises” and that the latter was “moaning and stuff.” 

Gwen explained that a bathroom light was on, casting light 
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into the bedroom. She turned and saw D.A. was rocking from 

her back to her side while making the sounds. Gwen remained 

lying down on the bed and staring at D.A., when she saw black 

hair and noticed a male’s hand was under the bed cover. Gwen 

perceived the male’s hand to be around the area of D.A.’s genitals, and she then “heard him get on top of [D.A.].”

D.A. explained that she “wasn’t really resisting, just because 

[she] was still kind of in that half-asleep/half-awake state.” 

When she felt a “graze” on her leg that felt like a penis, she 

pushed it away. At that point, she got up to go to the bathroom 

because she “didn’t want that to go on for any longer, obviously,” since she did not want to have sex with Brenden. Gwen 

testified that she heard D.A. twice ask, “‘What’s going on?’” 

before getting up and going to the bathroom. D.A. explained 

she did not want to have sex with either Brenden or Prado 

that night.

After approximately 5 minutes in the bathroom, D.A. 

returned to the bedroom and saw Gwen sitting alone on the 

bed, looking “shocked and scared.” Gwen was “100 percent 

sure” that the man had not been Brenden and asked D.A. who 

it was. D.A. testified that at that point, she thought the man 

had been Brenden, but that they walked around the apartment 

to make sure no one else was there. D.A. did not immediately 

call the police.

The next afternoon, D.A. called the pizza restaurant to ask 

who had delivered the pizza to her apartment the previous 

night and was advised that it was Prado. A security guard 

with whom D.A. had discussed the incident reported it to the 

police; they came to talk with her while she was at work that 

same day.

After her shift ended around 9:30 p.m., D.A. went to the 

police station to talk with an investigator, Tu Tran. The police 

retrieved D.A.’s bedsheets, her comforter, and what she had 

worn at the time of the incident. A “SANE” examination 

was conducted that revealed a 1.5- by 0.75-centimeter circular bruise and abrasion to the right side of D.A.’s neck, 
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lateral to her trachea. The examination also revealed abrasions to her vagina and hymenal tissue. The nurse who conducted the examination testified that these abrasions could be 

“fairly normal injuries to see in a digital penetration incident.” 

She also admitted, however, that such injuries could come 

from consensual sex. No semen was detected on the vaginal 

swabs retrieved during D.A.’s examination. Swabs taken from 

a bruise on D.A.’s neck included Prado’s DNA. Prado could 

not be excluded as the major contributor from semen samples 

found in D.A.’s underwear.

The police located Prado and subsequently interrogated him 

at the police station on March 19, 2018. A duty commander, 

Capt. Robert Farber, testified that Prado “was not free to go” 

and that while Prado was tired and spoke of having a learning disability, Farber did not notice anything to indicate that 

Prado had difficulty understanding or communicating with 

him. While in police custody, Farber read Prado his Miranda

rights, but did not have a pen to fill out the form. When Tran 

arrived, Farber gave him the blank form and told Tran that 

Farber had gone through the form with Prado but did not fill 

it out due to the lack of a pen. Tran confirmed with Prado that 

he had answered “yes” to all of the questions on the Miranda

rights form. Tran filled out the form, which Prado signed.

Following a jury trial, Prado was convicted of first degree 

sexual assault, a Class II felony punishable by 1 to 50 years’ 

imprisonment. See, Neb. Rev. Stat. § 28-319 (Reissue 2016); 

Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020). The district court 

sentenced Prado to 24 to 26 years’ imprisonment, along with 

lifetime community supervision, and it required Prado to register under Nebraska’s Sex Offender Registration Act. See, Neb. 

Rev. Stat. § 83-174.03 (Cum. Supp. 2020); Neb. Rev. Stat. 

§ 29-4001 (Reissue 2016). Prado appeals.

III. ASSIGNMENTS OF ERROR

Prado assigns that he received ineffective assistance of 

counsel in numerous respects. He also assigns that the district 
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court erred in (1) appointing new counsel after the verdict 

but before sentencing, (2) denying his motion to suppress, (3) 

granting the State’s motion to offer Neb. Rev. Stat. § 27-414 

(Reissue 2016) evidence, and (4) denying his motion to offer 

Neb. Rev. Stat. § 27-412 (Reissue 2016) evidence. Finally, he 

assigns that there was insufficient evidence for his conviction 

and that his sentence was excessive.

IV. ANALYSIS

1. Ineffective Assistance of Counsel

[1] Prado is represented on appeal by different counsel than 

the counsel who represented him in the district court. 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. State v. Casares, 291 Neb. 

150, 864 N.W.2d 667 (2015). Therefore, Prado timely raised 

his claims of ineffective assistance of counsel.

(a) Standard of Review

[2] 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.

(b) Discussion

[3] To prevail on a claim of ineffective assistance of counsel, 

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. Anderson, 305 Neb. 
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978, 943 N.W.2d 690 (2020). 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 deficient performance and whether the 

defendant was or was not prejudiced by counsel’s alleged deficient performance. Id. The record on direct appeal is sufficient 

to review a claim of ineffective assistance of trial counsel if it 

establishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, 

or that trial counsel’s actions could not be justified as a part of 

any plausible trial strategy. Id.

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.

Prado makes multiple assertions regarding ineffective assistance of his trial counsel. We address each of them in turn.

(i) Failure to Allow Prado to Testify 

About D.A.’s Request for Oral Sex

Prado first asserts that his counsel failed to allow him to testify that D.A. requested he perform oral sex on her. According 

to Prado, his refusal to honor her request angered D.A. and 

such testimony “would have informed the jury on the question of consent.” Brief for appellant at 15. However, Prado 

testified on both direct examination and cross-examination that 

he believed D.A. was upset with him because he prematurely 

ejaculated and took the pizza and alcohol with him when he left 

the apartment. He also testified extensively as to D.A.’s actions 

that would support a finding of consent if the jury had believed 

him; he detailed D.A.’s movements, including the removal 
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of her pants and the repositioning of herself for “penile-vaginal 

sex” just before Prado prematurely ejaculated. Although he 

argues that he was “ripped of his opportunity to present the 

jury with his side of the story in its entirety,” he did present 

evidence from which a jury could have determined the contact 

was consensual, if believed. Brief for appellant at 16.

Because the record refutes Prado’s claim that he was deprived 

of his ability to address the issue of consent, his counsel was 

not ineffective for failing to elicit testimony regarding D.A.’s 

alleged request for oral sex.

(ii) Failure to Cross-Examine D.A. 

About Her Request for Oral Sex

Prado asserts that his trial counsel was ineffective for refusing to cross-examine D.A. about her request that Prado perform oral sex on her. Similar to the argument above, he claims 

that such cross-examination would have directly addressed the 

issue of consent in this case, and that the failure to question 

D.A. about this topic was a violation of his Sixth Amendment 

right to confrontation. We disagree.

[4] Prado does not state how D.A.’s response would have 

addressed the issue of consent. The Nebraska Supreme Court 

has found that a claim of ineffective assistance that is insufficiently stated is no different than a claim not stated at all. State 

v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). In Stelly, the 

defendant claimed his trial counsel was ineffective for failing 

to ask questions of the State’s witnesses that would have shown 

a break in the chain of custody of certain evidence recovered 

from the crime scene. However, the Supreme Court found that 

because the defendant did not allege how the witnesses’ testimony would reveal such a break, the defendant failed to allege 

his claim of deficient performance with sufficient particularity. 

See id.

Similarly to the defendant in Stelly, Prado fails to allege 

with sufficient particularity how D.A.’s testimony would reveal 

that the encounter was consensual. He does not claim that she 

would have admitted that she requested oral sex, and given 
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her testimony on direct examination, it is likely that she would 

have denied having done so. Therefore, Prado failed to allege 

this claim of deficient performance with sufficient particularity. 

See State v. Stelly, supra.

(iii) Failure to Impeach Witnesses 

Rather Than Refresh Recollection

Prado assigns that his trial counsel was ineffective for failing to impeach D.A. and Gwen at various points in the trial 

with their prior inconsistent statements rather than refreshing 

their recollections. Prado relies on Moffett v. Kolb, 930 F.2d 

1156 (7th Cir. 1991), to support his argument. We find his reliance misplaced.

In Moffett v. Kolb, supra, a police report contained a statement by a witness that he had seen someone other than the 

defendant holding a gun immediately after it was fired. At 

trial, the witness expressly denied making this statement to 

the police, but the police report containing the statement was 

never produced at trial. The court determined that although 

the witness’ testimony made the jury aware that a discrepancy 

regarding whether or not he saw someone else holding the 

gun may exist, defense counsel’s failure to produce the police 

report rendered the witness’ statement that he had never seen 

the other person with the gun completely trustworthy. See id. 

The court found that if the witness had been impeached with 

his prior statement, the jury would have been required to assess 

his credibility. Therefore, defense counsel was ineffective for 

failing to properly impeach him with the police report.

We find the present case distinguishable from Moffett v. 

Kolb, supra. Here, Prado’s counsel not only brought attention to the inconsistencies between what D.A. and Gwen said 

in their prior statements and what they said at trial, but he 

also produced their prior statements, had the witnesses read 

them silently, and then made them confront the inconsistencies. Because the witnesses were confronted with their prior 

statements, we do not believe that impeaching them would 
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have resulted in a different outcome in the trial. See State v. 

Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).

Because Prado can show no prejudice as a result of his trial 

counsel’s choice to refresh D.A.’s and Gwen’s recollections, 

this claim of ineffective assistance of counsel fails. See State v. 

Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).

(iv) Failure to Object and Move for 

Mistrial During Voir Dire

Prado assigns that his trial counsel was ineffective for failing to object and move for a mistrial when the State asked a 

venireperson how he would feel if he were asked to describe 

his last consensual sexual encounter to the other potential 

jurors. Prado claims this question asks the venire to put themselves “in the shoes” of D.A., brief for appellant at 20, and 

therefore, the State improperly invoked the Golden Rule.

[5] As explained by the Supreme Court:

“A ‘golden rule’ argument tells the jur[ors] ‘to place 

themselves in the plaintiff’s shoes and award the amount 

they would ‘charge’ to undergo equivalent disability, pain 

and suffering.’” Such an argument is improper because it 

asks the jurors to place themselves or their loved ones in 

the plaintiff’s position, effectively urging them to become 

advocates for the plaintiff.

Anderson v. Babbe, 304 Neb. 186, 197, 933 N.W.2d 813, 821 

(2019).

[6] As applied to voir dire, the Supreme Court noted that 

“[p]arties may not use voir dire to impanel a jury with a 

predetermined disposition or to indoctrinate jurors to react 

favorably to a party’s position when presented with particular 

evidence.” Id. The Supreme Court noted, and found persuasive, a case from the District Court of Appeal of Florida, 

in which a venireperson was asked if she would be able to 

conduct her family business without her spouse. See Goutis v. 

Express Transport, Inc., 699 So. 2d 757 (Fla. App. 1997), disapproved on other grounds, Murphy v. International Robotic 

Systems, 766 So. 2d 1010 (Fla. 2000). The Florida appellate 
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court disagreed with the trial court’s ruling that the question 

violated the Golden Rule argument.

The Florida appellate court found that the question did not 

ask the prospective juror how much the juror would want to 

receive if placed in the plaintiffs’ position nor did it ask the 

juror to identify with the plaintiffs’ personal circumstances. 

The Florida appellate court found that “the question ‘asked 

what the juror’s own personal circumstances were, which is the 

very reason for voir dire—to know whether something in the 

juror’s personal experience is relevant to the issues to be tried 

in the case.’” Anderson v. Babbe, 304 Neb. at 198, 933 N.W.2d 

at 822, quoting Goutis v. Express Transport, Inc., supra.

In Anderson v. Babbe, supra, the Supreme Court noted that 

the venirepersons had been informed that the case was one of 

medical malpractice but were unaware of the particular facts. 

They had not been told to place themselves in the plaintiff’s 

situation or asked how much they would want to be awarded 

if so placed. See id. The Supreme Court specifically noted that 

“[w]hile the discussion during voir dire may have been heading 

in an improper direction, it did not reach the point of stating 

‘put yourself in the plaintiff’s place’ or asking the prospective 

jurors to do so.” Id. at 199, 933 N.W.2d at 822.

[7] Likewise, we find the voir dire question at issue does not 

violate the Golden Rule argument. The particular venireperson 

was asked how he would feel describing his last consensual 

sexual encounter in front of a group of strangers. He was not 

asked to put himself in a situation in which he was sexually 

assaulted. We acknowledge Prado’s argument that the potential 

jurors knew a few additional generalities of the case, including the allegation that he delivered a pizza to D.A.’s apartment and then came back later in the night when the sexual 

assault occurred, but we do not find that this rises to the level 

of a Golden Rule issue. Rather, as evidenced by the questions 

that followed, the initial question was posed to elicit how one 

would feel while testifying on the topic and what the physical manifestations of those feelings may look like. Because 
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neither an objection nor a motion for mistrial would have been 

successful, counsel cannot be ineffective for failing to have 

objected. See State v. Anderson, 305 Neb. 978, 943 N.W.2d 

690 (2020) (as matter of law, counsel is not ineffective for failing to make meritless objection).

(v) Failure to Object and Move for Mistrial 

Due to State’s Improper Impeachment

Prado argues that his trial counsel was ineffective for failing to object to the State’s improper impeachment of Gwen. 

He claims that the witness was allowed to read her prior statement into the record, without objection. We find that the record 

refutes this assertion.

The exchange in question during the State’s direct examination of Gwen is as follows:

Q Do you recall telling Investigator Tran that you and 

[D.A.] took a Lyft to [the club]?

A That part, I don’t really remember. I remember we 

got — we got a ride, ’cause we couldn’t drive. I know 

[Brenden], for sure, drove us home, but it was either a 

Lyft or we got a ride there. That part is a little fuzzy.

Q Okay. If I showed you your statement to Investigator 

Tran, would that help refresh your memory?

A Yes, probably.

Q All right. [Gwen], I’m showing you what’s page 6 of 

your statement. If you could just read the entire page, and 

let me know when you’re done.

A In my head?

Q Yes, in your head.

A (Witness examining document.)

Yeah, that makes sense. I also think I have a video of 

us from that night, getting in a Lyft. It’s just a car, so, 

like, I couldn’t really remember if we got a ride or if it 

was a Lyft, but we Lyft a lot, so that makes sense.

The record does not indicate that Gwen read any portion 

of her statement into the record; rather, it shows that Gwen 

read the relevant portion silently and then answered the State’s 
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pending question. Therefore, the record refutes Prado’s assertion that Gwen was improperly impeached and counsel could 

not have been ineffective for failing to object. See State v. 

Anderson, supra.

(vi) Failure to Object and Move for Mistrial 

Due to Brenden’s Inadmissible Hearsay

Prado argues that his trial counsel was ineffective for failing 

to object to a portion of Brenden’s testimony as inadmissible 

hearsay. While we agree that the testimony contained hearsay, it was cumulative of other admissible evidence; therefore, Prado is unable to prove that he was prejudiced by its 

admission. See State v. Ildefonso, 262 Neb. 672, 634 N.W.2d 

252 (2001).

The exchange in question during Brenden’s direct examination by the State was as follows:

Q . . . Was that topic of conversation that you and 

[D.A.] talked about whether or not it was you who came 

back in the middle of the night and was in her room in 

her bed?

A As far as me or — I remember her texting me asking 

if anyone else had came [sic] over or we invited anyone 

else over after, but as far as like the texting-wise, I knew 

at first she thought that it was me that we had stayed 

there or something along those lines, and then that’s 

when Gwen had mentioned to her like that definitely 

wasn’t [Brenden].

Hearsay, in relevant part, is defined as “a statement, other 

than one made by the declarant while testifying at the trial 

or hearing, offered in evidence to prove the truth of the matter asserted.” Neb. Rev. Stat. § 27-801(3) (Reissue 2016). 

Brenden’s statement contains hearsay to which Prado’s trial 

counsel could have objected. However, Gwen also testified that 

she told D.A. that the person on the bed was not Brenden, and 

Prado, himself, admitted to being the person on the bed. These 

statements were admitted into evidence without objection; 

therefore, the hearsay statement was cumulative.
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[8,9] Cumulative evidence means evidence tending to prove 

the same point of which other evidence has been offered. State 

v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014). Generally, 

erroneous admission of evidence is harmless error and does not 

require reversal if the evidence is cumulative and other relevant 

evidence, properly admitted, supports the finding by the trier of 

fact. State v. Ildefonso, supra. Because Brenden’s hearsay statement was cumulative of other admitted evidence, Brenden’s 

statement is harmless error, and Prado is unable to prove he 

was prejudiced by counsel’s failure to object. See id.

(vii) Failure to Object and Move for Mistrial 

Based on Testimony Regarding Prado’s 

Appearance and Work History

Prado argues that his trial counsel was ineffective for failing 

to object on relevancy grounds and move for a mistrial when 

Prado’s supervisor testified that Prado “looked pretty rough” 

most of the time and would periodically stop “showing up” 

for work. Prado claims the evidence was both irrelevant and 

unfairly prejudicial.

[10] Evidence which is not relevant is inadmissible. State v. 

Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). To be relevant, evidence must be probative and material. Id. Evidence is 

probative if it has any tendency to make the existence of a fact 

more or less probable than it would be without the evidence. 

Id. A fact is material if it is of consequence to the determination of the case. Id.

We agree with Prado that his supervisor’s testimony was 

not relevant, as it was neither probative nor material to the 

elements of first degree sexual assault. However, we find this 

record is sufficient to conclude that Prado was not prejudiced 

by counsel’s alleged deficient performance. Prado cannot show 

he was deprived of a fair trial or demonstrate a reasonable 

probability that but for counsel’s deficient performance, the 

result of the proceeding would have been different. See State 

v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). Here, as in 

Stelly, the testimony regarding the personal attributes of the 
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defendant was a small part of an otherwise lengthy trial in 

which there was strong evidence of his guilt.

[11] Prado also argues that even if the testimony was 

relevant, it was unfairly prejudicial. Under Neb. Rev. Stat. 

§ 27-403 (Reissue 2016), relevant evidence may be excluded 

if its probative value is substantially outweighed by the danger 

of unfair prejudice. To show prejudice, it must be shown that 

a motion under § 27-403 should have resulted in the evidence 

in question’s being ruled inadmissible and that, without such 

evidence, there is a reasonable probability of a different outcome in the trial. State v. Sierra, 305 Neb. 249, 939 N.W.2d 

808 (2020).

As stated above, the supervisor’s testimony as to Prado’s 

appearance and work history was irrelevant; therefore, § 27-403 

is inapplicable. Regardless, because we determine that the 

evidence did not affect the outcome of the trial, even under 

§ 27-403, this argument fails.

(viii) Failure to Object and Move for Mistrial on 

Grounds of Relevancy Due to Testimony 

on Prado’s Homelessness

Prado argues that his trial counsel was ineffective for failing to object on relevancy grounds and move for a mistrial 

when Prado’s supervisor testified that Prado was homeless at 

the time of the incident. Prado claims that his living situation 

at the time of the incident was irrelevant, and its probative 

value was substantially outweighed by its prejudicial nature. 

However, Prado similarly testified on direct examination that 

he was living in his car and showering at friends’ houses. This 

testimony negates any potential prejudice in the supervisor’s 

cumulative testimony as to Prado’s homelessness. See State v. 

Ildefonso, 262 Neb. 672, 634 N.W.2d 252 (2001). Therefore, 

his claim that counsel was ineffective for failing to object or 

move for a mistrial based on his supervisor’s testimony fails. 

See id.

Prado also argues that even if the evidence was relevant, its 

relevancy was outweighed by the danger of unfair prejudice 
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under § 27-403, and that his counsel was ineffective for failing to raise this objection. However, Prado failed to assign this 

as error; therefore, we do not consider it. See State v. Smith, 

292 Neb. 434, 873 N.W.2d 169 (2016) (for alleged error to be 

considered by appellate court, appellant must both assign and 

specifically argue alleged error).

(ix) Failure to Move to Strike Questions 

and Testimony After Trial Court 

Sustained Hearsay Objections

Prado asserts that his trial counsel was ineffective on multiple occasions for failing to move to strike sustained hearsay 

testimony from the record. Prado asserts that “both the question 

and the answer remain in the record for the jury to consider” 

and that “these improper questions that were sustained by the 

hearsay objection continue to be a part of the record, which 

prejudice [Prado] tremendously.” Brief for appellant at 29.

Three of the hearsay statements Prado claims were improperly retained in the record include two statements from D.A. 

and one from Gwen, each of which Prado corroborated during 

his own testimony. Because the hearsay statements were cumulative of other evidence, Prado cannot prove he was prejudiced 

by counsel’s failure to have them stricken.

The first statement involved the conversation at the apartment door between Prado and Brenden, but the objection was 

sustained before D.A. finished her answer and both Prado and 

Brenden testified as to the substance of that conversation. The 

second statement involved a comment made by Gwen to D.A. 

about the identity of the person on the bed, but the objection 

was sustained before D.A. identified Prado. Regardless, Prado 

admitted he was the person on the bed. The third statement 

was a reiteration by Gwen of Brenden’s statement that the 

delivery man said he would return with pizza and alcohol. Both 

Brenden and Prado testified as to this conversation between the 

two of them.

Because each of the hearsay statements was cumulative 

to other testimony, no prejudice can be shown, negating any 
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claim of ineffective assistance of counsel for failing to move 

to strike them. See State v. Ildefonso, supra.

Four additional statements that Prado’s trial counsel failed 

to move to strike were not prejudicial to Prado, and therefore, 

counsel was not ineffective for failing to have them stricken. 

These statements involve D.A.’s testimony that Gwen told 

her that Gwen went to bed shortly after D.A. did; Brenden’s 

friend’s statement that he did not know what the pizza delivery 

man said to Brenden; Gwen’s testimony that D.A. told her, 

“‘I’m kind of worried about last night’”; and Brenden’s testimony that D.A. sent him a text message the next day inquiring 

about the previous night’s events.

[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. 

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

no reasonable probability that if any of these statements were 

removed from the record that the jury would have acquitted 

Prado. Thus, Prado’s trial counsel was not ineffective in failing 

to move to strike any of these statements.

Prado also asserts his counsel was ineffective for failing to 

strike the questions that led to the sustained objections. He 

cites State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017), 

in which the Supreme Court determined that a defendant could 

not show he was prejudiced by his counsel’s failure to have 

such questions stricken because the jury was instructed that it 

could not speculate as to the possible answers. Prado claims 

that the jury in his case was not so instructed. However, jury 

instruction No. 1, read to the jury, contains the identical admonition. Therefore, we reject this claim.

(x) Failure to Object to Hearsay Evidence 

During Witnesses’ Testimony

Prado’s claims that his trial counsel was ineffective for 

failing to object to hearsay evidence during the testimony 

of “the witnesses.” Brief for appellant at 29. However, his 
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argument references only two instances of inadmissible hearsay during Gwen’s testimony; therefore, we limit our analysis 

to those specific instances.

Prado specifically references Gwen’s testimony regarding 

the conversation between Brenden and Prado in which Prado 

indicated that he could return to the apartment with “free 

alcohol and pizza,” although Gwen admitted she did not 

personally hear Prado say this. While Gwen’s statement is 

inadmissible hearsay as defined by § 27-801(3), both Brenden 

and his friend testified to the same conversation, thereby making the evidence cumulative. The submission of cumulative 

evidence regarding the conversation to which Gwen testified 

negates any potential prejudice in Gwen’s testimony as to this 

conversation. See State v. Hibler, 302 Neb. 325, 923 N.W.2d 

398 (2019).

Prado also argues that his trial counsel should have objected 

during the direct examination of Gwen, when the State asked, 

“At some point the next day, do you learn that [D.A.] has 

reported this incident to police?” and Gwen responded that 

D.A. “had told me that she wanted to, and I said we should, 

so we did.” While this particular testimony from Gwen fits 

within the definition of hearsay, nothing about the statement 

is prejudicial to Prado. 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. State v. Mrza, supra. D.A. had already testified 

that she decided to tell the police about the incident, and Tran 

later testified that D.A. reported the incident to him. Nothing 

about this statement indicates that but for its admission, Prado 

would not have been convicted of the crime; as such, Prado 

cannot show prejudice, making the argument meritless that his 

trial counsel was ineffective.

2. Appointment of New Counsel 

Postverdict and Presentencing

Prado argues that the district court erred in appointing 

new counsel after the verdict but before Prado’s sentencing 
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hearing. He claims he was prejudiced by this action, as his 

“sentencing was a month away and new counsel did not know 

the facts of the case, nor was he present at trial.” Brief for 

appellant at 31. Because Prado acquiesced to this request, we 

reject his argument.

(a) Standard of Review

[13] An appellate court reviews a trial court’s rulings 

on motions to withdraw as counsel and motions to dismiss 

appointed counsel and appoint substitute counsel for an abuse 

of discretion. State v. Figures, 308 Neb. 801, 957 N.W.2d 

161 (2021).

(b) Discussion

On September 19, 2019, the day after jury deliberations 

began, Prado requested that he be allowed to represent himself 

because he did not believe his counsel properly presented the 

facts. The court cautioned Prado about the dangers of representing himself because there may be certain motions to be 

filed after the jury returned its verdict. After being advised 

by the court, Prado responded that he did not want to make a 

motion to have his counsel removed.

Immediately after the jury returned its guilty verdict on 

September 19, 2019, Prado’s trial counsel motioned to withdraw as counsel because Prado was “not satisfied” with counsel 

and “basically made allegations [of] ineffective[ness].” Prado 

affirmed his desire for counsel to withdraw. The court explained 

that if it granted the motion to withdraw, the court would 

appoint another attorney to take over the case. The court confirmed thrice more with Prado that he wished for trial counsel 

to withdraw that day, and Prado answered affirmatively each 

time. The court sustained counsel’s motion and entered an 

order allowing Prado’s counsel to withdraw and appointing 

new counsel.

[14] Prado personally affirmed that he wanted the court to 

remove his trial counsel and appoint new counsel. A defendant in a criminal case may not take advantage of an alleged 
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error which the defendant invited the trial court to commit. 

State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001). 

Prado’s repeated desire for his trial counsel to be removed 

and for subsequent counsel to be appointed is unambiguous. 

Therefore, we find no abuse of discretion in the court’s appointment of new counsel for Prado after the verdict but before 

sentencing.

3. Motion to Suppress

Prado argues that the district court erred in denying his 

motion to suppress the use of any and all statements and evidence obtained by law enforcement officers during their questioning of him on March 19, 2018. Specifically, Prado claims 

the officers did not read him his Miranda rights prior to interrogation, thus invalidating all evidence and statements arising 

from the interview.

(a) Standard of Review

[15] In reviewing a motion to suppress a confession based 

on the claimed involuntariness of the statement, including 

claims that it was procured in violation of the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate 

court applies a two-part standard of review. With regard to historical facts, we review the trial court’s findings for clear error. 

Whether those facts suffice to meet the constitutional standards, however, is a question of law, which we review independently of the trial court’s determination. State v. Juranek, 287 

Neb. 846, 844 N.W.2d 791 (2014).

(b) Discussion

[16] Miranda v. Arizona, supra, prohibits the use of statements derived during custodial interrogation unless the prosecution demonstrates the use of procedural safeguards that 

are effective to secure the privilege against self-incrimination. 

State v. Juranek, supra. Miranda requires that before interrogation, law enforcement must warn a person in custody that 
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he or she has the right to remain silent, that any statement the 

person makes may be used as evidence against him or her, 

and that the person has the right to an attorney, either retained 

or appointed. See State v. Nave, 284 Neb. 477, 821 N.W.2d 

723 (2012).

[17] For purposes of Miranda, interrogation “‘refers not 

only to express questioning, but also to any words or actions 

on the part of the police (other than those normally attendant to 

arrest and custody) that the police should know are reasonably 

likely to elicit an incriminating response from the suspect.’” 

State v. Buckman, 259 Neb. 924, 935, 613 N.W.2d 463, 474 

(2000), quoting Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 

1682, 64 L. Ed. 2d 297 (1980).

Prado argues that Farber’s question “[w]ell do you have any 

idea what this is about?” was intended to elicit an incriminating response. And, because this question was posed prior to 

Farber’s reading Prado his Miranda rights, the entire interrogation should have been suppressed. We disagree.

In Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. 

Ed. 2d 222 (1984), the sheriffs entered the defendant’s home 

with an arrest warrant. The officer asked him if he was aware 

why they were there to speak with him, and the defendant 

responded that he did not know why. The officer asked, “[I]f he 

knew a person by the name of Gross, and he said yes, he did, 

and also added that he heard that there was a robbery at the 

Gross house.” Id., 470 U.S. at 301 (internal quotation marks 

omitted). The officer told the defendant that he believed he was 

involved in the robbery, and the defendant admitted he “was 

there.” Id. (internal quotation marks omitted). His Miranda

rights were read to him later at the sheriff’s office, where he 

gave a full statement and signed a written confession.

The U.S. Supreme Court determined that

absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect 

has made an unwarned admission does not warrant a 

presumption of compulsion. A subsequent administration 
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of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice 

to remove the conditions that precluded admission of 

the earlier statement. In such circumstances, the finder 

of fact may reasonably conclude that the suspect made a 

rational and intelligent choice whether to waive or invoke 

his rights.

Oregon v. Elstad, 470 U.S. at 314. Ultimately, the Court found 

that the unwarned statement prior to the defendant’s Miranda

warning was voluntary and thereby admissible.

In the present case, Prado responded to Farber’s question by 

indicating that his supervisor mentioned that a customer complained that “a guy . . . went into her house and jumped into bed 

to her—with her,” but it was not him. Although this statement 

was not an admission, Prado argues that it “showed inconsistencies of his statements in his later interview.” Brief for appellant at 34. However, Farber’s question was not designed to 

elicit an incriminating response. His question “[w]ell do you 

have any idea what this is about?” is similar to the question 

of whether the defendant was aware of the reason the officers 

were at the defendant’s home in Oregon v. Elstad, supra. And, 

it is even further removed from the followup accusation in 

Elstad that led to the defendant’s confession.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 

2d 694 (1966), prohibits the use of statements derived during 

custodial interrogation; at the time of Prado’s statement, he 

was not being interrogated. An interrogation is a

practice that the police should know is reasonably likely 

to evoke an incriminating response from a suspect . . . . 

But, since the police surely cannot be held accountable 

for the unforeseeable results of their words or actions, 

the definition of interrogation can extend only to words 

or actions on the part of police officers that they should 

have known were reasonably likely to elicit an incriminating response.

Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S. Ct. 1682, 

64 L. Ed. 2d 297 (1980) (emphasis in original).
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Nebraska has adopted an objective test, which asks: “‘Would 

a reasonable and disinterested person conclude that police 

conduct, directed to a suspect or defendant in custody, would 

likely elicit an incriminating response from that suspect or 

defendant? . . .’” State v. Bormann, 279 Neb. 320, 327, 777 

N.W.2d 829, 836 (2010), quoting State v. Gibson, 228 Neb. 

455, 422 N.W.2d 570 (1988). We do not believe that a reasonable person would conclude that a question designed to elicit a 

“yes or no” response and as innocuous as “[w]ell do you have 

any idea what this is about?” would elicit an incriminating 

response. Rather, the question was a transitional one. Farber 

explained to Prado, “What I do is I talk to somebody and then 

when I’m gonna talk to ’em about the specific crime I read ’em 

their rights. Okay? Prior to this I’ve been visiting with you.” 

Before interrogating Prado about the allegations, Farber read 

him his Miranda warning.

We find Prado’s response similar to that of the defendant in 

State v. Cavitte, 28 Neb. App. 601, 945 N.W.2d 228 (2020). 

In Cavitte, the defendant was handcuffed in the back seat of 

a police cruiser when law enforcement questioned her about 

her injuries. The defendant responded that the injuries resulted 

from a disagreement with her husband and that they had “‘been 

going through a lot’” in their marriage. Id. at 607, 945 N.W.2d 

at 236. The officer then read the defendant her Miranda warning, and she was transported to the police station where she 

was interrogated. The defendant was subsequently charged 

with second degree domestic assault. Prior to trial, she sought 

to have both her pre-Miranda and post-Miranda statements 

suppressed on the basis that they were obtained in violation of 

her constitutional rights. The court denied her motion.

On appeal, this court held that the defendant’s response 

in the police cruiser was not incriminating. We further held, 

however, that the questions posed were not intended to elicit 

incriminating responses. State v. Cavitte, supra. Because the 

pre-Miranda statements were not made in violation of the 

defendant’s constitutional rights, the subsequent post-Miranda

statements were not subject to suppression.
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Likewise, Prado argues that his constitutional rights were 

violated through interrogation prior to being read his Miranda

warning and that therefore, his post-Miranda statements should 

also be suppressed. Having found that no constitutional violation occurred pre-Miranda, we reject this argument.

4. § 27-414 Motion

The State filed a pretrial motion under § 27-414 in which it 

sought to introduce evidence that Prado was previously convicted of attempted sexual assault of a child. Prado argues that 

the district court improperly granted the State’s motion. We 

disagree.

(a) Standard of Review

[18,19] In proceedings where the Nebraska Evidence 

Rules apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility. State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013). 

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. Valverde, supra.

(b) Background of 2014 Conviction

In a pretrial hearing, the victim from the 2014 incident, 

T.M., testified that the day of the incident, Prado arrived at her 

family’s apartment looking for her mother’s boyfriend. T.M.’s 

mother allowed him to wait in the apartment, where Prado sat 

on the couch and drank alcohol. Later that evening, while T.M. 

slept on the living room floor with a friend and Prado slept on 

the couch, she awoke to Prado’s sliding his hand from her calf 

to her thigh and then squeezing her buttock. Prado then picked 

her up, rubbed her vaginal area over her pajamas, and rubbed 

her chest over her pajamas. When they heard somebody turn 

the shower on, Prado pushed T.M. onto the floor.
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The following morning, T.M. explained to her mother what 

happened the previous night. When questioned, Prado stated 

he had picked T.M. up off the ground because the family dog 

had been biting her. T.M. denied this. T.M.’s mother reported 

the incident to the police, who arrested Prado. He pled guilty 

to and was convicted of one count of attempted sexual assault 

of a child.

(c) District Court’s Ruling

Following a hearing, the court ruled that evidence of the 

prior 2014 attempted sexual assault was conditionally admissible. The court determined that the 2014 crime happened, was 

not too remote in time, and was substantially similar to the 

present charge.

In its order, the court primarily focused on the similarities between the 2014 crime and the 2019 incident. The court 

explained that both victims were “young females,” both incidents occurred in the victims’ homes while the victims slept in 

the night, and both incidents occurred near the female’s friend 

and involved Prado’s fingers touching the victims’ buttocks 

and vaginal areas. Differences the court analyzed included 

D.A.’s intoxication, how Prado’s touching occurred over T.M.’s 

clothing but under and inside D.A.’s, and the 9-year age difference between the two victims at the time of the incidents.

Ultimately, in making its ruling, the court acknowledged 

that admittance of the 2014 attempted sexual assault would be 

prejudicial, but not “unfairly prejudicial.”

(d) Discussion

Prado’s argument on appeal is that the court erred in allowing the § 27-414 evidence because the risk of prejudice substantially outweighed the probative value of the evidence. 

Section 27-414(3) requires that the court employ a balancing 

test, admitting the evidence if the risk of prejudice does not 

substantially outweigh the probative value of the evidence. 

When administering the balancing test, the court may consider any relevant factor, such as the probability that the other 
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offense occurred, the proximity in time and intervening circumstances of the other offenses, and the similarity of the other 

acts to the crime charged. See § 27-414(3).

Prado does not deny that the 2014 incident occurred; rather, 

he argues that the two cases “were vastly different.” Brief for 

appellant at 36. We disagree.

Although there were differences between the two incidents, we find the similarities more compelling. Both incidents 

involved female victims, who were sleeping near their friends. 

Prado had never met either of the victims prior to the day of 

the assaults and did not engage in conversation with either of 

them prior to the assault. Neither the victims nor Prado spoke 

during the assaults. Both assaults involved Prado’s touching 

the victims’ buttocks and vaginal regions, although the 2014 

assault was done over the victim’s clothing. In both cases, 

Prado left the homes when he was confronted about his behavior by somebody other than the victim. The only identifiable 

differences between the 2014 assault and the 2019 assault were 

the victims’ ages at the time of the assaults (11 years old and 

20 years old, respectively), and in the current case, the victim 

had consumed alcohol and did not even know that Prado was in 

her apartment prior to waking up to the assault. Therefore, the 

incidents had few differences and multiple similarities.

After balancing the § 27-414(3) factors, we determine that 

they weigh in favor of admissibility and that the probative 

value of Prado’s 2014 sexual assault was not outweighed by 

the danger of unfair prejudice. We therefore conclude that the 

district court did not abuse its discretion in allowing evidence 

of the 2014 incident.

5. § 27-412 Motion

Prado assigns that the district court erred in denying his 

motion to offer evidence of D.A.’s past sexual behavior under 

§ 27-412. Specifically, Prado sought to question D.A. about 

text messages between her and Gwen, discussing instances 

when D.A. drank too much, had sex, and then regretted the 
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sexual encounters. We disagree that the court improperly 

excluded the evidence.

(a) Standard of Review

In proceedings where the Nebraska Evidence Rules apply, 

the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when 

the rules make discretion a factor in determining admissibility. State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013). 

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. Valverde, supra.

(b) Pretrial Motion

In his pretrial motion, Prado sought to introduce evidence 

of D.A.’s past sexual behavior “pursuant to Neb. Rev. Stat. 

§ 27-412, (i) and (iii)” and “the holding in Olden v. Kentucky, 

488 U.S. 227, (1988), for the additional purpose of challenging the victim’s credibility and motive to be untruthful.” He 

claimed the existence of evidence that would prove D.A. had, 

in the past, consented to sex while impaired and was “remorseful or could not remember afterward.”

Following a hearing, in which two exhibits consisting of 

text messages between D.A. and Gwen were received, the 

court denied the motion. In its order, the court reasoned that 

“[c]onsent to sex with one person while intoxicated does not 

imply consent with another, and while the text messages at 

most express some regret, the victim in no way subsequently 

denied the sexual contact; rather she freely discussed it with 

her friend.”

Prado renewed his motion at trial, citing the same bases he 

had previously raised, which was overruled.

(c) Discussion

Although Prado sought to introduce evidence of D.A.’s 

past sexual behavior under what we assume he meant to be 
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§ 27-412(2)(a)(i) and (iii), he argues on appeal that the evidence was admissible under § 27-412(2)(a)(ii). Because Prado 

never raised the applicability of this subsection in the district 

court, we decline to address it on appeal. See State v. Devers, 

306 Neb. 429, 945 N.W.2d 470 (2020) (appellate courts do not 

generally consider arguments and theories raised for first time 

on appeal).

Prado also asserts that the exclusion of this evidence violated his Sixth Amendment right to confront his accuser. He 

relies upon State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 

(1999). In Lessley, the defendant was charged with first degree 

sexual assault. He claimed the encounter was consensual. He 

sought to introduce evidence that the victim, a lesbian, had 

stated to a coworker that she had anal intercourse with males 

in the past. Id. Following a pretrial motion, the court held that 

the evidence was inadmissible under Nebraska’s rape shield 

statute. See § 27-412.

During trial, the State elicited evidence from the victim that 

she was a lesbian. State v. Lessley, supra. Thereafter, the defendant renewed his motion to present evidence of the victim’s past 

sexual conduct multiple times, arguing that her testimony that 

she was a lesbian showed a greater likelihood the encounter 

was not consensual and that he had a constitutional right to 

confront his accuser. The court denied his motions. Id.

[20] On appeal, the Supreme Court agreed that the evidence of the victim’s past sexual behavior was not admissible 

under the rape shield statute, but held that the exclusion of the 

evidence violated the defendant’s Sixth Amendment right to 

confront his accuser. See State v. Lessley, supra. In reaching 

this decision, the Lessley court agreed with the defendant that 

the State had “opened the door” to the victim’s homosexuality during its direct examination of her. It explained that the 

principle of “‘[o]pening the door’ is simply a contention that 

competent evidence which was previously irrelevant is now 

relevant through the opponent’s admission of other evidence 

on the same issue. State v. Harrold, [256 Neb. 829, 855, 593 
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N.W.2d 299, 319 (1999)], quoting Clark v. State, [332 Md. 77, 

629 A.2d 1239 (1993)].” State v. Lessley, 257 Neb. at 908, 601 

N.W.2d at 526.

In the present case, Prado renewed his motion to admit 

§ 27-412 evidence, stating that

the prior sexual history, to prove habit and to prove, 

you know, that she was going out and getting drunk and 

hav[ing] sex and planned for sex, and regretted it the 

next day, things like that, and I can’t think of the other 

purposes, but just our motion that we had filed for those 

purposes, and I just need to renew that for the record.

Prado did not argue that the State opened the door to such 

testimony through its direct examination of D.A. As such, we 

find no error in the district court’s refusal to allow Prado to 

offer evidence of D.A.’s prior sexual behavior under § 27-412. 

See State v. Devers, supra.

Regardless of Prado’s failure to argue to the district court 

that the State opened the door to D.A.’s prior sexual conduct, 

we disagree that the State did so. The State asked no questions 

regarding any part of D.A.’s sexual history. Unlike the victim 

in State v. Lessley, supra, D.A. did not deny on direct examination that she had previously engaged in the type of behavior at 

issue; rather, the issue was not raised. Therefore, the State did 

not open the door to her sexual history.

6. Sufficiency of Evidence

Prado assigns that the evidence presented at trial was insufficient to convict him of first degree sexual assault. Viewing 

the record in the light most favorable to the State, we disagree.

(a) Standard of Review

[21] In reviewing a criminal conviction, 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, and a conviction will be affirmed, 

in the absence of prejudicial error, if the evidence admitted 

at trial, viewed and construed most favorably to the State, is 
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sufficient to support the conviction. State v. Sanders, 269 Neb. 

895, 697 N.W.2d 657 (2005).

(b) Discussion

Prado was convicted of one count of aggravated first degree 

sexual assault. The first degree sexual assault statute, § 28-319, 

sets forth the elements of the offense. Section 28-319(1) provides, in relevant part, that one is guilty of first degree sexual 

assault if one “subjects another person to sexual penetration (a) 

without the consent of the victim [or] (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.” 

Prado contends that the State failed to prove beyond a reasonable doubt that D.A. did not consent or that Prado should have 

known she was incapable of consent.

Neb. Rev. Stat. § 28-318(8) (Reissue 2016) defines the 

phrase “without consent” to mean, in relevant part:

(a)(i) The victim was compelled to submit due to the 

use of force or threat of force or coercion, or (ii) the victim expressed a lack of consent through words, or (iii) the 

victim expressed a lack of consent through conduct, or (iv) 

the consent, if any was actually given, was the result of 

the actor’s deception as to the identity of the actor or the 

nature or purpose of the act on the part of the actor[.]

Prado argues that D.A. was awake when the digital penetration was occurring but that she did not object until “she felt a 

penis on her back.” Brief for appellant at 41. He further asserts 

that D.A. testified she thought it was Brenden who was on the 

bed and allowed the interaction to continue. Therefore, he contends that the State failed to prove the interaction was without 

D.A.’s consent. We disagree.

We first take into account the circumstances in which this 

incident occurred. Prado entered the apartment of a woman 

whom he had never met and let himself into her bedroom 

where he lay down between her and her friend in the hopes of 

having a “threesome.” He then proceeded to digitally penetrate 
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her while she slept. From this, a jury could reasonably conclude that Prado’s actions were without D.A.’s consent. See 

State v. Koperski, 254 Neb. 624, 578 N.W.2d 837 (1998) 

(requiring conclusion regarding victim’s consent be objectively reasonable).

Prado argues that D.A. did not immediately resist; therefore, 

the interaction was consensual. However, even if her inaction 

could be considered consent, § 28-318(8)(a)(iv) categorizes 

such a situation as nonconsensual. This subsection states that 

consent that “was the result of the actor’s deception as to 

the identity of the actor” qualifies as being without consent. 

§ 28-318(8)(a)(iv). As explained in the legislative history of 

1995 Neb. Laws, L.B. 371, § 3, this deception language was 

included to encompass situations in which an intruder, who the 

victim believed was someone else, penetrates the victim. As 

clarified by the amendment’s introducing senator, this would 

be a situation “in which it would . . . not be necessary to establish a physical resistance to the rapist and still preserve the 

possibility of a conviction for rape.” Floor Debate, L.B. 371, 

94th Leg., 1st Sess. 8366 (May 24, 1995) (remarks of Senator 

David Landis).

D.A. explained that she was “half asleep, half awake” and 

initially thought the person on her bed was Brenden. Without 

determining who the person was, D.A. left the bed to end 

the encounter. Therefore, even if D.A.’s initial inaction could 

be considered consent, it does not exculpate Prado’s actions. 

Reviewing the evidence in a light most favorable to the State, 

we find the evidence sufficient for a jury to determine that 

Prado penetrated D.A. without her consent. In light of this 

conclusion, we need not address whether the victim lacked the 

mental capacity to consent under § 28-319(1)(b). See State v. 

McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).

7. Excessive Sentence

Prado assigns that the district court erred by imposing an 

excessive sentence. We find no abuse of discretion in the sentence imposed.
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(a) Standard of Review

[22] When a trial court’s sentence is within the statutory 

guidelines, the sentence will be disturbed by an appellate court 

only when an abuse of discretion is shown. State v. Spang, 302 

Neb. 285, 923 N.W.2d 59 (2019).

(b) Discussion

Aggravated first degree sexual assault is a Class II felony, 

punishable by 1 to 50 years’ imprisonment. See, § 28-319; 

§ 28-105. Prado was sentenced to 24 to 26 years’ imprisonment and lifetime community supervision, and he was required 

to register under Nebraska’s Sex Offender Registration Act. 

See, § 83-174.03; § 29-4001. Because his sentence is within 

the prescribed statutory limitations, we review for an abuse 

of discretion.

[23] 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. State v. Spang, supra. When imposing a sentence, a sentencing judge should consider 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 violence involved 

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.

The “Level of Service/Case Management Inventory” 

(LS/CMI) indicated Prado’s education/employment, family/

marital status, companions, and procriminal attitude/orientation 

put him at a very high risk of recidivism. Prado was 27 years 

old at the time of sentencing. He dropped out of high school 

in the 11th grade. He reported one expulsion for burglary 

and criminal mischief, although he claims to have had good 
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relationships with his teachers and classmates. Prado held multiple jobs between 2017 and the time of sentencing, remaining 

in each position between 2 months and 1 year. He was unemployed without health insurance at the time of sentencing.

Prado has not spoken to his father, who has a criminal history, since 2018, but he speaks to his mother every week. 

He has an adult sister and an infant brother, but he does not 

contact his sister often. Prado has no current romantic partner 

and claims to have been the subject of sexual abuse by various 

women in the past. He reports having only one friend who he 

does not see often.

Regarding the current case, Prado denied any wrongdoing. 

He indicated a desire for probation, although his past attempts 

at probation ended in revocation due to law violations, probation violations, and absconding. The LS/CMI noted that 

Prado’s “ongoing involvement in criminal activities despite the 

consequences reflects a general disregard for the laws and an 

attitude that is supportive of crime.”

The LS/CMI indicated that Prado’s criminal history and antisocial pattern put him at a high risk of recidivism. Prado has a 

lengthy criminal history, both as a juvenile and as an adult. His 

adult history includes multiple traffic infractions, along with 

two counts of driving under the influence, escape, possessing 

or consuming open alcohol containers, a third degree sexual 

assault of a child charge that was amended to attempt, four 

counts of violating his sex offender registration, possession of 

“K2” or marijuana, failure to appear in court, furnishing false 

or misleading information, and false reporting. The LS/CMI 

noted that Prado “appears to have a tolerance for deviancy and 

a tendency to resort to criminal alternatives.” He claims that 

authority figures tend to demean and disrespect him.

Prado’s history with alcohol and drugs puts him at a low risk 

of recidivism according to the LS/CMI. The LS/CMI indicated 

multiple skill deficits for Prado, including impulse control, 

making appropriate decisions, using good judgment, problems 

with authority, his history of assault, and setting boundaries, 
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among others. Additionally, Prado underwent a sex offender 

risk assessment, which is used to indicate the appropriateness 

of community supervision. Prado ranked in the moderate-high 

risk category. Ultimately, the LS/CMI stated Prado appeared to 

be in the “pre-contemplative stage of change.”

At sentencing, the district court made clear that it read and 

considered the contents of the presentence investigation report. 

Thus, when considering all of the information contained in the 

presentence investigation report and the required sentencing 

factors under State v. Spang, 302 Neb. 285, 923 N.W.2d 59 

(2019), the court did not abuse its discretion in its sentencing 

of Prado.

V. CONCLUSION

For the aforementioned reasons, we affirm Prado’s conviction and sentence.

Affirmed.