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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. WOOD

Cite as 310 Neb. 391

State of Nebraska, appellee, v. 

Marvin L. Wood, appellant.

___ N.W.2d ___

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

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

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

in the discretion of the trial court.

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

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules and judicial discretion is involved only when the rules 

make discretion a factor in determining admissibility.

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

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

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

an abuse of discretion.

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

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

not necessarily mean that it can be resolved on direct appeal; the determining factor is whether the record is sufficient to adequately review 

the question.

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

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

assistance of counsel if the record affirmatively proves or rebuts either 

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

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

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

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

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

through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s 

interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement 

would entail.

Nebraska Supreme Court Online Library

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

11/26/2021 01:10 AM CST
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STATE v. WOOD

Cite as 310 Neb. 391

7. Expert Witnesses. With respect to a defense request for the appointment of an expert independent of the prosecution, the question in each 

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

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

much help a defense expert could have given.

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

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

criminal justice system cannot afford defense experts on demand.

9. Judges: Expert Witnesses. The determination of whether a defendant has made an adequate showing of the reasonable necessity for an 

appointed expert lies within the discretion of the trial judge.

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

its reasoning or rulings are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted 

for disposition.

11. Constitutional Law: Expert Witnesses. Outside the context of psychiatric expertise, to show a constitutional right to appointment of an 

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

a preliminary, particularized showing (1) that an issue involving specialized knowledge is likely to be a significant factor in the accused’s 

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

have expert assistance in contesting that issue.

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

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

difference as to the outcome if the defendant is successful in contesting it.

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

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

strongly contested with the assistance of an appointed expert.

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

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

adequate to contest the issue.

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

expert, public money need not provide defense counsel with equipment 

for a “fishing expedition.”

16. ____. The defense cannot be asked to support the motion for appointment of an expert with information that can only be found by paying for 

expert assistance the defendant cannot afford. Neither should the trial 

court demand defense counsel conduct a lay investigation outside the 

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

and experience.

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

showing by the defendant either that cross-examination of the State’s 
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STATE v. WOOD

Cite as 310 Neb. 391

experts was inadequate to the task of revealing misleading or inadequate 

information or that there was a reasonable necessity for an independent 

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

State’s experts.

18. Effectiveness of Counsel: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not 

necessarily mean that it can be resolved.

19. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a 

claim of ineffective assistance of counsel under Strickland v. Washington, 

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

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

this deficient performance actually prejudiced the defendant’s defense. 

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

performance and prejudice, in either order.

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

appellate court can determine whether the record proves or rebuts the 

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

has knowledge of the specific conduct alleged to constitute deficient 

performance.

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

claim of ineffective assistance of trial counsel when new counsel represents the defendant on direct appeal, the appellant must make specific 

allegations of the conduct the appellant claims constituted deficient 

performance by trial counsel.

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

Appellate counsel does not waive a claim of ineffective assistance 

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

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

record or known to the defendant without further inquiry.

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

not scour the record in search of facts that might support an appellant’s claim.

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

§ 27-806 (Reissue 2016) allows the credibility of a declarant of a hearsay statement or statement defined in Neb. Rev. Stat. § 27-801(4)(b)(iii), 

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

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

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

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

a witness, without any opportunity to deny or explain.

25. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than 

one made by the declarant while testifying at the trial or hearing, offered 

in evidence to prove the truth of the matter asserted.
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Cite as 310 Neb. 391

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

not hearsay.

27. ____. Statements are not hearsay to the extent they are offered for context and coherence of other admissible statements and not for the truth 

or the truth of the matter asserted.

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

underlying impeachment of a witness by evidence of a prior felony 

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

degree relevant to that individual’s credibility.

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

assertions are not in dispute.

30. Judges: Evidence: Appeal and Error. The exercise of judicial discretion is implicit in determinations of relevancy, and a trial court’s 

decision regarding relevancy will not be reversed absent an abuse of 

discretion.

31. Constitutional Law: Trial: Witnesses. The Confrontation Clause guarantees an opportunity for effective cross-examination, but not in whatever way or to whatever extent the defendant might wish, and trial 

judges retain wide latitude to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, 

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

that is repetitive or only marginally relevant.

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

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

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

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

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

assistance and made all significant decisions in the exercise of reasonable professional judgment.

34. Effectiveness of Counsel. Trial counsel’s decisions that amount to reasonable trial strategy do not constitute deficient performance.

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

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

will not support an ineffective assistance claim.

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

not use perfect hindsight to criticize unsuccessful trial strategies or 

second-guess trial strategy.

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

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

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

fact finder’s determination of a material fact.
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STATE v. WOOD

Cite as 310 Neb. 391

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

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

between them is a matter of conjecture.

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

testing is well known; thus, jurors might wrongly assume, absent evidence of statistical relevance, that any DNA profile match is extremely 

unlikely and therefore extremely probative.

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

attach to DNA evidence, the value of inconclusive testing results without statistical relevance is substantially outweighed by the danger that 

the evidence will mislead the jurors.

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

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

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

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

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

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

quality to obtain a profile.

42. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

43. Effectiveness of Counsel: Appeal and Error. Assignments of error 

on direct appeal regarding ineffective assistance of trial counsel must 

specifically allege deficient performance, and an appellate court will not 

scour the remainder of the brief in search of such specificity.

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

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

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

commit the greater offense without simultaneously committing the lesser 

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

defendant of the greater offense and convicting the defendant of the 

lesser offense.

45. Lesser-Included Offenses: Sexual Assault. Attempted first degree sexual assault of a child is a lesser-included offense of first degree sexual 

assault of a child.

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

Butler, Judge. Affirmed.

Robert W. Alexander, Deputy Hall County Public Defender, 

for appellant.
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STATE v. WOOD

Cite as 310 Neb. 391

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

for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

Marvin L. Wood appeals from his conviction of first degree 

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

refusing to appoint him a DNA expert, sustaining the prosecution’s objection to further use of a forensic video to refresh 

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

objection to his attempt to adduce the fact that the declarant 

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

also makes numerous claims of ineffective assistance of his 

trial counsel, including the failure to adequately support the 

motion for a DNA expert, the handling of the State’s DNA evidence, and the cross-examination of the victim. We affirm the 

judgment below.

II. BACKGROUND

With counsel different from trial counsel, Wood appeals 

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

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

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

instructed on a lesser-included offense of attempted first degree 

assault of a child. The victim was friends with Wood’s daughter, and the assault occurred during a sleepover with Wood’s 

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

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

1. Motion to Employ Expert Witness

Wood was charged in September 2019. Due to laboratory 

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

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

became available to the defense on June 8. At the July 2 pretrial conference, defense counsel indicated readiness to go 
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STATE v. WOOD

Cite as 310 Neb. 391

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

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

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

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

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

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

continuance, ordering trial to begin on September 14.

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

“with reasonable funds to employ an independent expert witness in the field of DNA science” and set forth the estimated 

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

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

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

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

victim, photographs of her injuries, medical reports and expert 

testimony.” This meant that

[Wood] has a particularized need for the assistance of 

an independent expert in the field of DNA science to 

assess the DNA reports and testing methods completed 

by the Nebraska Crime Lab and explain if they are consistent with the statement(s) of the alleged victim, proper 

scientific methods, and the other evidence collected in 

this case.

Based upon the DNA report completed by the Nebraska State 

Patrol Crime Laboratory, “it has become apparent further analysis is needed regarding test results and methods of testing 

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

the motion set forth that “[c]ounsel for [Wood] lacks the necessary expertise to question the DNA reports provided by the 

State in regards to DNA testing methods and DNA results to 

determine whether the alleged victim’s statements and testing 

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

“[c]ounsel lacks expertise regarding testing methodology and 

if such testing was conducted according to the recognized standards.” Therefore, trial counsel was “in need of the assistance 

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

these matters.”
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STATE v. WOOD

Cite as 310 Neb. 391

At hearings on the motion, trial counsel introduced evidence 

to support Wood’s indigent status. The court acknowledged 

the evidence demonstrated Wood was indigent. Trial counsel 

explained Wood had used all his assets in retaining counsel 

that was continuing representation on a pro bono basis. The 

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

motion and its attached cost estimate for the proposed expert. 

Trial counsel acknowledged that the court had allowed Wood 

to employ an expert sexual assault nurse examiner to testify on 

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

to have access to its DNA expert from the Nebraska State 

Patrol Crime Laboratory. Nevertheless, trial counsel became 

aware of the need for a DNA expert after witness preparation 

occurred with Wood’s expert sexual assault nurse examiner in 

mid-July. Trial counsel argued that “based on some of the conclusions and the methodology that was used in the creation of 

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

these tests were performed.” Trial counsel elaborated:

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

help the jury to understand what the DNA evidence in this 

case means. Specifically, I believe the evidence will show 

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

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

which appears to be that of . . . Wood.

However, the amount of DNA, the amount of cells 

where it was found, to explain to the jury how that actually exists in life, whether it’s touch DNA, what kind of 

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

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

that we have someone who can explain to them exactly 

what this means.

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

explain how things were tested and how it was found, 

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

underwear, but the jury also needs to understand the facts 

in totality.
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Cite as 310 Neb. 391

Because in speaking to our expert, talking about markers, talking about whether it’s one in a billion or one in a 

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

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

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

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

explain to the jury.

Trial counsel also described an alleged phone call with the 

Nebraska State Patrol Crime Laboratory in which it was disclosed that no male DNA was detected in any of the swabs and 

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

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

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

review of the trial to help educate us as to DNA and its meaning, and then to educate the jury and educate a layman exactly 

what that means.”

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

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

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

remain largely unspecified.” It then reasoned:

The State has indicated that it intends to call upon an 

expert in genetic analysis employed by the Nebraska 

Crime Lab. While this expert would technically be considered the State’s witness, this Court finds no evidence 

to suggest that defense counsel is deprived of the right 

to cross examination. Likewise, this Court possesses no 

knowledge that would indicate that defense counsel is 

incapable of amassing sufficient independent research on 

the subject that would equip defense counsel with the relevant knowledge and resources required to conduct such 

cross examination.

The court concluded that it was not “required to provide 

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

was “confident that defense counsel in this case has the intellectual capacity, resources, and creativity required to mount an 

exceptionally comprehensive cross examination of the State’s 

proposed expert witness.”
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STATE v. WOOD

Cite as 310 Neb. 391

2. Mother’s Testimony

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

She testified that she was in a romantic relationship with 

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

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

The two girls often played together at the shop where Wood 

was employed.

The mother testified that the morning after the victim spent 

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

daughter, she was informed the victim would be going to 

Lincoln, Nebraska, with Wood and his daughter because Wood 

had to get a title to a vehicle. These arrangements were unexpected and were made without her input. Later that day, Wood 

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

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

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

outfit Wood had purchased for her in Lincoln. When Wood 

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

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

but Wood declined.

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

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

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

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

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

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

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

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

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

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

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

whole time.”

There was a delay in finding someone to come to the hospital to examine the victim. The mother testified that while they 

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

to use the restroom. The mother accompanied her. After the 
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Cite as 310 Neb. 391

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

because it had blood on it. The mother conveyed this information to a nurse at the hospital. The mother explained that before 

that day, the victim had not complained of experiencing any 

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

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

They waited about 5 hours while the hospital attempted to 

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

The entire time, the victim kept wearing everything she had 

worn since being dropped off with her mother, because the 

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

underwear she had worn during the sleepover.

After the victim was released from the hospital, her mother 

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

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

underwear and give the underwear she was wearing to the 

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

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

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

they had arrived there late in the evening.

The victim was finally able to be examined by a pediatrician 

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

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

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

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

While the victim used to occasionally shower with her younger 

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

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

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

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

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

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

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

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

was asked whether she knew Price was a convicted felon. 

The prosecution objected, and counsel had an in-chambers 
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Cite as 310 Neb. 391

conference in which the prosecution explained its objection 

was on the grounds of relevance and improper character evidence. Defense counsel argued the evidence supported the 

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

chose to have [the victim] make up this story.” The court sustained the objection, explaining that, at that time, there was no 

evidence supporting the relevancy of Price’s criminal history. 

The court explained that it would retain the mother for added 

testimony later, if defense counsel wished. Defense counsel 

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

disregard the question regarding Price’s criminal history.

The mother’s testimony during direct examination had 

referred to approximately five general statements by Price. At 

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

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

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

also described how Price had told her that Wood took the victim directly from the shop to the sleepover at his apartment. 

Price had informed the mother that the victim was going with 

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

sleepover. The mother testified as to how Price had invited 

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

mother later yelled at Price that she needed to leave, she testified Price asked her, “‘What’s wrong?’”

3. Law Enforcement Officer Testimony

A law enforcement officer who had met the victim at the 

hospital testified at trial. She described the victim as “withdrawn” and “in shock.” The officer testified she became aware 

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

paper after the victim used the restroom. She elaborated that 

she heard multiple medical professionals speaking about it.

The officer went to the child advocacy center when the 

victim did, collected the underwear, and placed it into evidence. The officer later went to Wood’s apartment, and Wood 

accompanied the officer to the police station for an interview. 
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In the interview, Wood said he had gone to his daughter’s room 

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

occurred that night. The officer affirmed on cross-examination 

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

The officer testified that Wood said he brought the victim 

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

into a bed; gave the victim a “tablet [computer] for entertainment”; and lay down next to her and fell asleep. Wood denied 

any physical contact other than putting his arm around her for 

comfort. At some point during the interview, Wood expressed 

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

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

wearing pants. Further, Wood said that sometimes the victim 

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

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

right there, that she sets those boundaries.”

4. DNA and Serum Testing of Clothing 

and Medical Examination Swabs

A forensic biologist in the DNA unit of the Nebraska State 

Patrol Crime Laboratory testified as to the procedures and 

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

of swabs taken during the medical examination.

(a) Serum Testing

The biologist tested the items from the sexual assault medical examination kit, which included two vaginal swabs, two 

external genital swabs, and two oral evidence swabs. Serology 

testing did not detect the presence of semen in any item contained in the kit.

(b) DNA Processing of Examination 

Swabs and Exhibit 18

The biologist then processed all the examination swabs for 

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

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

shows that no semen was found in the swabs and that DNA 
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testing was performed on them. It shows that DNA processing 

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

two oral evidence swabs was stopped “due to the insufficient 

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

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

contributor to the DNA profile detected.

The biologist explained that the aspect of the report showing 

processing of the two vaginal swabs and the two oral swabs 

was stopped, due to the insufficient quantity of male DNA 

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

of male DNA on the sample.” The State then asked the biologist, “Can you say with certainty that there was no male DNA 

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

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

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

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

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

with absolute certainty whether or not there was male DNA 

on them.

The biologist was also asked about the external genital 

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

generated as a byproduct of her testing during the quantitation 

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

both male and female DNA. This information is not reflected 

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

Wood’s profile was excluded from that sample, while the victim’s DNA was included. The biologist explained Wood was 

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

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

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

female can essentially drown out any potential load level of 

male DNA.”

(c) Y-STR DNA Testing of Examination 

Swabs and Exhibit 20

The biologist testified that in a further attempt to find 

a profile in the male DNA she had detected, she sent the 
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external genital swabs for “Y-STR testing,” which can ignore 

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

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

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

the supervisors in the biology unit of the Nebraska State Patrol 

Crime Laboratory. The biologist reviewed the report, marked 

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

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

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

the male DNA found could not be compared with any other 

known DNA profiles for comparison purposes.

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

cross-examination, trial counsel offered exhibit 20 into evidence and it was received. The biologist testified that the 

supervisor’s report, marked as exhibit 20, was a true and accurate copy and that she recognized the supervisor’s signature 

on it.

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

profile was found.

(d) Epithelial DNA on Underwear and Exhibit 17

The biologist also performed testing on the victim’s underwear that she wore at the time of the incident, which testing did 

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

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

mixture of DNA originating from three individuals was found. 

The victim was a major contributor to that mixture.

Testing included Wood as one of the minor contributors to 

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

unknown person. The results of this DNA testing were entered 

into evidence as exhibit 17.

During cross-examination, the biologist explained that touch 

DNA could be transferred directly or indirectly by touching 

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

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

that person lives.
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5. Victim’s Testimony

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

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

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

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

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

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

She admitted she was unsure if she was wearing a nightgown 

instead of pants. The victim described that Wood removed her 

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

unzipped and pulled his pants down “a little.” The victim testified Wood lay on top of her and “put[] his finger in my private 

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

victim described “he put his private in mine.”

The victim described that during the shopping excursion 

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

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

could not remember if she was wearing the new clothes the following day when she was brought back to her mother.

The victim explained that she told her mother what had happened and that they went to the hospital. At the hospital, her 

mother accompanied her when she had to use the bathroom, 

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

victim also explained that she was wearing the same underwear 

she had worn when Wood had woken her up.

(a) Refreshing Recollection With Video

Trial counsel had moved before trial for the release of the 

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

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

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

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

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

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

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

or if she had taken a shower or bath while there. Most of the 
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cross-examination centered on the victim’s prior statements in 

the forensic interview and deposition.

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

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

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

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

series of questions and answers revealed the victim’s confusion 

about whether she was being asked about the room where the 

interview had taken place or the location where the assault had 

taken place.

She eventually testified she had told the interviewer the 

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

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

defense counsel was permitted to show the victim a portion of 

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

the victim stated that the video had refreshed her memory.

The victim confirmed she had told the interviewer that 

Wood and she went from her friend’s bedroom to Wood’s bedroom. She had not told the interviewer anything with Wood 

had occurred in the living room.

Trial counsel also confronted the victim with her deposition 

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

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

deposition that she had gone to Wood’s bedroom.

Trial counsel proceeded to ask the victim if she remembered 

what she had told the interviewer with respect to whether Wood 

took his clothes off or only unzipped his pants. When the victim said she did not remember, she was again taken in chambers where she watched a portion of the video of her interview. 

Upon returning to the courtroom, the victim testified she had 

told the interviewer that Wood had taken his clothes off.

Next, trial counsel confronted the victim with her statement 

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

counsel asked if she remembered what she had said in this 

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

not remember. But before the court ruled on trial counsel’s 
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request to take the victim back in chambers to watch a portion 

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

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

the continuation of trial the following day.

(b) Plan to Have Victim Watch Entire Video

The court articulated that a plan had been made for the 

victim to watch the entirety of the interview video with her 

guardian ad litem and have the transcript of her deposition read 

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

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

with this.”

The following morning, however, the prosecution explained 

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

about 16 minutes of the 45-minute interview before the guardian ad litem decided to stop it. The guardian ad litem explained 

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

a change in her demeanor that I thought she became just visibly upset and kind of shrunken down into her chair.”

(c) Objection and Ruling That Video 

Could Not Be Used

The prosecution stated that it had reflected upon “what happened yesterday” and that, after some research, it decided to 

motion the court to prohibit the defense from using the interview video to refresh the victim’s recollection. The prosecution relied on the fact that Neb. Rev. Stat. § 27-612 (Reissue 

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

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

refreshing the victim’s recollection with the video were permissible, the State argued the procedure used did not comport 

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

counsel was attempting to impeach the victim under the guise 

of refreshing her recollection.

According to the prosecution, when the attempted impeachment did not work because the victim did not remember what 

she had said, the rules contemplated impeachment through 
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extrinsic evidence, not by using extrinsic evidence to refresh 

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

prosecution argued there were other means to impeach the victim’s testimony without making her watch the interview video. 

For example, the defense could call another witness who was 

present at the interview and impeach the witness’ testimony by 

adducing the other witness’ testimony about what was said.

Trial counsel responded no notice was given that this was 

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

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

against her without her being refreshed. Probably would have 

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

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

witness the opportunity to explain or deny a prior inconsistent 

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

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

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

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

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

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

be played for the jury as extrinsic evidence to impeach the victim. The court said:

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

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

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

for the inconsistent statements with extrinsic evidence, 

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

refreshing of her recollection with that video.

We still have the deposition, which that has been read 

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

Trial counsel did not respond to this pronouncement and did 

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

believed to be thereby impeded.

(d) Resumption of Cross-Examination

When cross-examination resumed, the victim admitted that 

she had told defense counsel in her deposition that she had 
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dressed herself after the assault, while in her testimony at trial 

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

questioned the victim about the details of her shopping trip 

with Wood the following day.

6. Testimony of Forensic Interviewer

The forensic interviewer testified about her interview of 

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

trained in the disclosure process children typically use when 

disclosing traumatic events and that disclosure does not usually 

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

involved in the assault during the forensic interview.

On cross-examination, trial counsel asked the interviewer 

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

The interviewer answered in the bedroom. Then trial counsel 

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

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

objected on the grounds of hearsay and improper impeachment. In a discussion at the bench, the trial counsel asserted 

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

prior inconsistent statements for purposes of impeachment. The 

prosecution responded:

He is only able to impeach specific statements that [the 

victim] testified to when she testified in this court hearing, and asking this witness to have her essentially recount 

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

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

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

attempting to impeach. To use [the interviewer] to reiterate the entirety of the interview is not confined enough to 

qualify as improper impeachment.

Trial counsel withdrew the question and agreed to ask a 

more specific question. The following cross-examination then 

took place:

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

in [Wood’s] room?
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A Part of it, yes.

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

put his private parts in her private parts?

A Yes.

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

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

kissed her?

A Yes.

. . . .

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

bunk and she went to sleep, correct?

A Yes.

. . . .

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

clothes?

A Yes.

On redirect, the interviewer testified that children disclosing traumatic events do not always disclose the facts 

chronologically.

7. Sexual Assault Examination

The pediatrician who performed the victim’s sexual assault 

examination testified the victim had disclosed she had some 

burning and some blood when she urinated the night before, 

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

The pediatrician testified that the victim eventually became 

uncooperative when the pediatrician attempted to swab the outside of the victim’s vaginal opening and that the pediatrician 

was unable to swab fully.

All other aspects of the sexual examination kit were completed successfully. The pediatrician also conducted a physical examination for injuries. She photographed the area, but 

explained the photographs could have been better had the victim been more cooperative when they were taken. The victim 

at that point had become “uncomfortable.”
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The pediatrician testified that she observed during the physical examination “an extreme amount of redness and irritated 

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

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

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

you see on a standard exam of a child.”

The pediatrician also observed a superficial, vertical laceration at about the 9 o’clock position and in the folds of the 

labia minora adjacent to the vaginal opening. The tissue of 

the vagina heals very quickly; therefore, she concluded the 

observed injuries were recent.

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

caused bleeding when they first occurred, as well as burning 

during urination. Further, there would not necessarily be blood 

on the victim’s underwear given the injuries and reported 

bleeding. Rather, “[t]he way that it’s hidden up in these tissues,” it was possible that “when [she] wiped over it, it opened 

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

that tissue.”

The pediatrician stated the observed injuries could be consistent with digital or penile penetration of the vagina. On 

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

the observed injuries were caused by acts that were not “criminal or nefarious.”

8. Defense Expert Witness

The defense called as an expert witness the sexual assault 

nurse examiner, who was also a nurse practitioner with a 

doctorate degree in nursing. The expert works as the assistant 

manager of a forensic assessment consultation and treatment 

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

the forensic interview, the medical records from the hospital, 

and the medical records from the forensic examination.

The expert testified that redness is a nonspecific finding 

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

no physical injuries from the photographs taken during the 

examination.
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The expert stated that if there was blood observed after 

urinating, she would expect blood cells would be detected in 

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

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

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

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

blood cells were present.”

Based on her review of the records, the expert opined 

there was no injury indicative of sexual abuse. On crossexamination, the expert admitted that it is possible for a sexual 

assault not to cause any injuries.

9. Jury Instruction Conference 

and Closing Arguments

Wood’s trial counsel did not object to any of the jury instructions or the verdict form and did not submit any additional proposed instructions. During closing arguments, the prosecution 

pointed out the victim’s physical injuries and made the following argument with respect to the DNA evidence:

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

out by one of the defense attorneys during their crossexamination maybe in 100 years we’ll finally catch up to 

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

But we know that there was male DNA on the external 

genital swabs that were collected from [the victim] during 

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

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

We also know that . . . Wood’s DNA is on [the victim’s] underwear, the underwear she was wearing immediately before, immediately after the assault happened.

The prosecution also pointed out that disclosure of a sexual 

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

or in a perfect chronological retelling. The prosecution pointed 

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

intercourse and who had no experience to assist in processing 

this trauma. Despite this, she was expected to talk about the 
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assault and then have a pediatrician examine her “on a part of 

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

examined.” Lastly, the prosecution described the testimony 

indicating the victim’s changes in behavior and demeanor after 

the assault.

Trial counsel emphasized in closing arguments the burden of 

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

different stories and that there were multiple inconsistencies in 

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

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

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

hard to remember a lie.”

Trial counsel also emphasized that its expert found no injury 

demonstrating sexual assault and that the presence of epithelial 

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

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

transferred via surfaces.

III. ASSIGNMENTS OF ERROR

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

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

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

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

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

Wood’s employer, was a convicted felon.

Wood assigns that trial counsel was ineffective in (1) failing to request a lesser-included instruction of attempted first 

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

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

of his Motion to Employ an Expert Witness and for Payment 

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

Unduly Prejudicial Testimony About DNA Testing Results 

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

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

conducted by her supervisor, (6) offering exhibit 20, (7) “in 
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his Cross-Examination” of the victim, and (8) “in his CrossExamination” of the forensic interviewer.

IV. STANDARD OF REVIEW

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

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

discretion of the trial court. 1

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

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules and judicial discretion is involved 

only when the rules make discretion a factor in determining 

admissibility. 2 Where the Nebraska Evidence Rules commit the 

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

an appellate court reviews the admissibility of evidence for an 

abuse of discretion. 3

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

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

be resolved on direct appeal; the determining factor is whether 

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

record is sufficient to resolve on direct appeal a claim of ineffective assistance of counsel if the record affirmatively proves 

or rebuts either deficiency or prejudice with respect to the 

defendant’s claims. 5

V. ANALYSIS

Wood asserts on appeal three errors by the trial court and 

numerous alleged acts of ineffective assistance by his trial 

counsel. Wood argues the court erred by denying his pretrial 

motion that a DNA expert be appointed and, alternatively, 

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

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

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

3 Id.

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

5 See id.
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that defense counsel was ineffective for presenting “Virtually 

No Evidence” in support of the motion for appointment of 

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

prohibiting defense counsel from eliciting testimony from 

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

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

trial court erred by sustaining the prosecution’s objection to 

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

recollection. Relatedly, he asserts defense counsel was ineffective in the manner the victim was cross-examined. Defense 

counsel was also allegedly ineffective in cross-examining the 

forensic examiner about the victim’s interview statements. 

Wood claims defense counsel failed to “Investigate the Case 

Fully” and mishandled the evidence relating to the DNA testing of the swabs from the medical examination. Finally, Wood 

argues defense counsel was ineffective by failing to request an 

instruction on the lesser-included offense of attempt.

1. Failure to Appoint DNA Expert and 

Alleged Ineffectiveness in Trial 

Counsel’s Lack of Support 

for Its Motion

The right of an indigent defendant to the appointment of an 

expert witness at the State’s expense generally rests in the discretion of the trial court. 6 Neb. Rev. Stat. § 27-706(1) (Reissue 

2016) provides, in part:

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

any party enter an order to show why expert witnesses 

should not be appointed, and may request the parties to 

submit nominations. The judge may appoint any expert 

witnesses agreed upon by the parties, and may appoint 

witnesses of his own selection.

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

to reasonable compensation in whatever sum the judge may 

6 State v. Baue, supra note 1.
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allow. The compensation thus fixed is payable from funds 

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

We have repeatedly held that the right of an indigent defendant to the appointment of an expert witness at the State’s 

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

Wood asserts the trial court abused its discretion because denying his request for appointment of a DNA expert violated his 

rights to procedural due process.

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

its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant 

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

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

defendant is denied the opportunity to participate meaningfully 

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

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

State proceeds against an indigent defendant without making 

certain he has access to the raw materials integral to the building of an effective defense.” 9 The State need not purchase for 

the indigent defendant all the assistance wealthier counterparts 

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

appeal’” must be provided to those defendants who cannot 

afford to pay for them. 11

In Ake v. Oklahoma,

 12 and McWilliams v. Dunn, 13 the Court 

held that an indigent defendant has a constitutional right 

7 Id.

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

(1985).

9 Id., 470 U.S. at 77.

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

2d 341 (1974).

11 Ake v. Oklahoma, supra note 8.

12 Id.

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

(2017).
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to access to an expert in psychiatry after the defendant has 

made a preliminary showing that the defendant’s sanity at 

the time of the offense is “likely” to be “a significant factor in his defense.” 14 It found the need for an independent 

expert psychiatrist necessarily followed from a showing of 

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

and “psychiatrists disagree widely and frequently,” so jurors 

“must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each 

party.” 15 Thus,

without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, 

to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the 

cross-examination of a State’s psychiatric witnesses, 

the risk of an inaccurate resolution of sanity issues is 

extremely high. 16

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

health expert must be “sufficiently available” to the defense 

and “independent from the prosecution” in order to effectively 

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

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

to achieve this goal is to provide a qualified expert retained 

specifically for the defense team, it has declined to address 

whether appointment of an expert for the defense is always 

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

accused’s defense. 18

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

15 Id., 470 U.S. at 81.

16 Id., 470 U.S. at 82.

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

Oklahoma, supra note 8.

18 McWilliams v. Dunn, supra note 13.
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[6] The Court explained that access to an expert with State 

funds is at its foundations analyzed under the three factors 

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

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of 

such interest through the procedures used, and the probable 

value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the 

function involved and the fiscal and administrative burdens 

that the additional or substitute procedural requirement would 

entail. 20 While the Court recognized the State may suffer 

some financial burden in providing defense access to an independent psychiatrist at its expense, in circumstances where a 

defendant’s mental condition is at issue and relevant to culpability or punishment, this financial burden is outweighed 

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

accurate adjudications of criminal cases—given the complexity of the determination for which such expert testimony can 

be crucial. 21

These procedural due process standards have since been 

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

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

20 Id.

21 See Ake v. Oklahoma, supra note 8.

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

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

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

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

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

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

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

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

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

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

Doremus, 2 Neb. App. 784, 514 N.W.2d 649 (1994).
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courts 23 and courts in other states, 24 to a variety of other fields 

of expert knowledge shown likely to be a significant factor 

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

spoken on the question of other areas of scientific knowledge, 

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

refusal to appoint fingerprint and ballistics experts, because the 

defendant had “offered little more than undeveloped assertions 

that the requested assistance would be beneficial.”

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

principled way to distinguish between psychiatric and nonpsychiatric experts,” inasmuch as an expert in any field of 

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

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

request for the appointment of an expert independent of the 

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

of science or expert knowledge is involved, but rather how 

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

a defense expert could have given.” 27

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

S.E.2d 920 (1996).

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

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

27 Id.
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(a) No Preliminary Showing of 

Necessity Supporting Motion

[8] The State does not contest that defendants may, depending on the circumstances, have a procedural due process right 

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

not abuse its discretion in finding Wood failed to demonstrate 

the need for such an appointment. We agree. “Courts uniformly stress that the showing of need must set forth in detail 

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

Some reasonable preliminary showing by the defense justifying its request for the appointment of an expert is necessary 

because the criminal justice system cannot afford defense 

experts on “demand.” 29

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

adequate showing of the reasonable necessity for an appointed 

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

court abuses its discretion when its reasoning or rulings are 

clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for 

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

finding that Wood’s trial counsel did not make this preliminary showing.

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

a constitutional right to appointment of an independent expert 

at the State’s expense, the accused must timely make a preliminary, particularized showing (1) that an issue involving 

specialized knowledge is likely to be a significant factor in 

the accused’s defense and (2) that there is a reasonable necessity for the defense to have expert assistance in contesting that 

28 3 Wayne R. LaFave et al., Criminal Procedure § 11.2(e) at 745 (4th ed. 

2015).

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

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

31 See State v. Ralios, 301 Neb. 1027, 921 N.W.2d 362 (2019).
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issue. 32 To be a significant factor, the issue must be one likely 

to make a difference as to the outcome if the defendant is successful in contesting it. 33

[13] There is a reasonable necessity for appointed expert 

assistance if the defendant shows some basis for believing the 

issue can only be strongly contested with the assistance of an 

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

material issue involving specialized knowledge is insufficient 

to show need for the appointment of an expert unless the 

defendant demonstrates the very nature of the scientific field 

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

with controversy and disputes over methodology. 35 On the 

other extreme, where the scientific methodology is well established and its application is viewed as largely mechanical, the 

defense must show a specific reason, such as the prosecution 

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

expert is needed to assist in a successful challenge to such scientific evidence. 36

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

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

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

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

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

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

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

note 28.

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

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

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

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

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

2017).

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

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

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

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

1369 (La. App. 1987); Johnson v. State, 529 So. 2d 577 (Miss. 1988).
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[14,15] Here, the district court reasoned defense counsel 

had failed to demonstrate the DNA evidence could not be 

strongly contested through rigorous cross-examination without the assistance of an appointed expert. Sometimes, under 

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

their cross-examination at trial will be adequate to contest 

the issue. 37 In State v. Turco,

 38 the Nebraska Court of Appeals 

explained public money need not provide defense counsel with 

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

some showing by defense counsel that the expert is necessary 

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

discretion in denying a motion to appoint an expert when the 

defendant failed to show why a vigorous cross-examination of 

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

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

had to employ an expert he could not afford in order to demonstrate the need for the appointment of an expert. This is a 

concern discussed by several courts and legal authorities. 40 We 

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

preliminary showing of necessity is unreasonably high. 41 The 

37 See 3 LaFave et al., supra note 28.

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

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

39 See State v. Turco, supra note 22.

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

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

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

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

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

Bargain Basement Justice: Providing Indigent Defendants With Expert 

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

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

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

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

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

a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305 (2004).
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defense cannot be asked to support the motion for appointment of an expert with information that can only be found 

by paying for expert assistance the defendant cannot afford. 

Neither should the trial court demand defense counsel conduct 

a lay investigation outside the bounds of what can be expected 

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

district court did not impose an unreasonably high standard in 

finding Wood’s request inadequate.

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

of an expert every time the material incriminating evidence 

adduced by the State involves specialized knowledge. There 

must be some particularized preliminary showing either that 

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

task of revealing misleading or inadequate information or that 

there was a reasonable necessity for an independent expert to 

help the defense prepare for effective cross-examination of the 

State’s experts. 43

Defense counsel asserted in support of Wood’s motion for 

appointment of an expert that the need for an expert was 

“apparent” because counsel lacked expertise in DNA testing; 

that the jury needed to understand the significance of minor 

contributors in a mixture of touch DNA and how touch DNA 

“exists in life”; and, without any supporting affidavit or testimony, that there was a phone call giving the defense reason to 

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

not require Wood to support his motion with expert testimony 

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

found counsel’s unsupported arguments to be insufficient. We 

cannot say this was an abuse of discretion.

(b) Ineffective Assistance

[18] Wood alternatively asserts defense counsel was ineffective in failing to provide adequate support for the motion 

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

43 See id.

44 See, e.g., Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980).
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for appointment of a DNA expert. On direct appeal when the 

defendant has obtained new counsel, the resolution of ineffective assistance of trial counsel claims turns upon the sufficiency of the record to affirmatively prove or rebut the merits 

of the ineffective assistance claims. 45 The fact that an ineffective assistance of counsel claim is raised on direct appeal does 

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

factor is whether the record is sufficient to adequately review 

the question. 47

[19] To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,

 48 the defendant must show 

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

this deficient performance actually prejudiced the defendant’s 

defense. 49 An appellate court may address the two prongs of 

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

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

proves or rebuts the merits of a claim of ineffective assistance of trial counsel only if it has knowledge of the specific 

conduct alleged to constitute deficient performance. 51 Thus, 

in order to preserve a claim of ineffective assistance of trial 

counsel when new counsel represents the defendant on direct 

appeal, the appellant must make specific allegations of the 

conduct the appellant claims constituted deficient performance 

by trial counsel. 52

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

claim of ineffective assistance of trial counsel by failing to 

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

46 Id.

47 Id.

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

(1984).

49 State v. Filholm, supra note 45.

50 Id.

51 Id.

52 See id.
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specifically allege and argue prejudice, because doing so would 

often require details unlikely to be found in the record or 

known to the defendant without further inquiry. 53 It is, nevertheless, advisable for appellate counsel to specifically argue 

prejudice if counsel believes the details in the trial record pertinent to the prejudice prong of the ineffective assistance inquiry 

are sufficient to adequately review the question. Appellate 

courts are free to determine on direct appeal the effectiveness 

of trial counsel on the prejudice prong if the record affirmatively proves or rebuts the claim on that ground. 54

We conclude that Wood has adequately assigned and argued 

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

the motion for appointment of an expert, but neither the question of deficiency nor of prejudice can affirmatively be proved 

or rebutted by the trial record. We have already determined 

defense counsel’s motion and support thereof was inadequate 

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

DNA expert. However, defense counsel would only have been 

constitutionally ineffective in this regard if adequate support 

actually existed.

Wood argues defense counsel could have at least proffered 

an affidavit by Wood’s appointed expert sexual assault nurse 

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

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

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

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

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

instance, he additionally refers to the possibility, reflected in 

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

Nebraska State Patrol Crime Laboratory had said no male DNA 

was detected on any of the swabs.

53 See id.

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

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

683, 539 N.W.2d 18 (1995).
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The trial record does not affirmatively prove or rebut 

whether there were such grounds to dispute the biologist’s testimony that male DNA was found or whether there were additional reasons why the opportunity to cross-examine the State’s 

experts, without independent expert advice in preparation, was 

inadequate to contest the incriminating DNA evidence. Though 

the incriminating evidence against Wood was not limited to the 

DNA evidence, the DNA evidence, including the presence of 

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

and we cannot speculate as to what extent an appointed expert 

would have been pivotal in contesting it.

The record does not affirmatively prove or refute whether it 

is reasonably probable that effective trial counsel could have 

adequately supported the motion or that the appointment of a 

DNA expert would have led to a challenge to prejudicial DNA 

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

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

trial counsel was ineffective in failing to adequately support his 

motion for appointment of a DNA expert.

2. Refusal to Allow Impeachment of Price’s 

Character as Convicted Felon

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

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

denying his attempt to adduce that Price was a convicted felon 

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

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

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

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

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

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

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

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

56 See State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018).
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its discretion in sustaining the State’s relevancy objection to 

Price’s status as a convicted felon.

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

the credibility of a declarant of a hearsay statement or statement defined in Neb. Rev. Stat. § 27-801(4)(b)(iii), (iv), or (v) 

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

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

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

any evidence that would be admissible for those purposes if 

the declarant had testified as a witness, without any opportunity to deny or explain. Hearsay is a statement, other than one 

made by the declarant while testifying at the trial or hearing, 

offered in evidence to prove the truth of the matter asserted. 57

Statements offered to show their effect on the listener are not 

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

are offered for context and coherence of other admissible statements and not for the truth or the truth of the matter asserted. 59

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

were hearsay.

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

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

underlying impeachment of a witness by evidence of a prior 

felony conviction is that any past felony committed by the witness is to some degree relevant to that individual’s credibility. 60

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

assertions is not in dispute. 61

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

§ 27-801(3).

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

2020).

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

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

(2021).

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

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

61 See State v. Veiman, 249 Neb. 875, 546 N.W.2d 785 (1996).
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[30] The exercise of judicial discretion is implicit in determinations of relevancy, and a trial court’s decision regarding 

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

The trial court did not abuse its discretion in concluding that 

Price’s credibility was not relevant to Price’s out-of-court statements adduced during the mother’s testimony.

3. Prohibiting Wood From Further Refreshing 

Victim’s Recollection With Video and 

Effectiveness of Cross-Examination of 

Victim and Forensic Interviewer

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

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

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

victim from further use of the interview video to refresh her 

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

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

and defense counsel certainly did not raise the right to confrontation. Therefore, the alleged error was waived. 63

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

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

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

exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the 

interrogation and presentation effective for the ascertainment 

of the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment. The 

Confrontation Clause guarantees an opportunity for effective 

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

extent the defendant might wish, and trial judges retain wide 

latitude to impose reasonable limits on such cross-examination 

based on concerns about, among other things, harassment, 

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

63 See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
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prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. 64

In making its ruling, the trial court agreed with the prosecution that if the defense was trying to refresh the victim’s 

recollection in an attempt to impeach her testimony at trial, 

defense counsel could do so through other means, such as 

through the testimony of the forensic interviewer. It cited to 

State v. Molina,

 65 in which we held that the court did not abuse 

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

of a witness as extrinsic evidence of an inconsistent statement, 

because its probative value was outweighed by the danger of 

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

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

presentation of cumulative evidence.

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

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

standards pertaining to the trial court’s discretion by framing 

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

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

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

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

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

was not.

Wood alternatively argues trial counsel was ineffective by 

apparently abandoning further attempts to refresh the victim’s 

recollection after the court’s ruling and by having impeached 

the victim’s every inconsistent statement in an allegedly clumsy 

manner that Wood argues bolstered the forensic interviewer’s 

testimony that child victims of sexual assault do not always 

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

find these contentions of ineffective assistance of counsel are 

affirmatively refuted by the trial record.

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

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

65 State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
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[32,33] To show that counsel’s performance was deficient, a 

defendant must show that counsel’s performance did not equal 

that of a lawyer with ordinary training and skill in criminal 

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

presumes that counsel “rendered adequate assistance and made 

all significant decisions in the exercise of reasonable professional judgment.” 67

[34-36] Trial counsel’s decisions that amount to reasonable trial strategy do not constitute deficient performance. 68

Decisions about whether to engage in cross-examination, and 

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

and generally will not support an ineffective assistance claim. 69

We do not use perfect hindsight to criticize unsuccessful trial 

strategies 70 or second-guess trial strategy. 71

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

defense counsel’s strategy can be reasonably inferred from the 

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

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

record here is sufficient to demonstrate it was defense counsel’s strategy to undermine the victim’s credibility by pointing out her inconsistent statements in describing the details of 

the assault.

This was not unreasonable. The assertion that this strategy may have inherently served to bolster the forensic interviewer’s testimony about the way children disclose sexual 

assault—which was adduced to reduce any inference that such 

inconsistencies impeached the witness’ credibility in the first 

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

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

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

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

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

70 Id.

71 Calkins v. U.S., 795 F.3d 896 (8th Cir. 2015).
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deficient. Nor was defense counsel constitutionally deficient in 

the manner in which the victim’s inconsistent statements were 

adduced or by not adducing more inconsistent statements.

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

counsel was deficient in cross-examining the forensic interviewer. The entirety of Wood’s argument with respect to crossexamination of the forensic interviewer borders on conclusory. 

Wood asserts that adducing the victim’s statements that Wood 

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

off his clothes “accomplished nothing for Wood” and “bolstered” the victim’s testimony. 72 The record reflects that Wood 

adduced numerous inconsistent statements and was attempting 

to effectuate that strategy during his cross-examination of the 

forensic interviewer. The simple assertion that defense counsel 

could have performed better is not grounds to conclude defense 

counsel was constitutionally deficient.

The record affirmatively refutes Wood’s claims regarding 

ineffective assistance of trial counsel in cross-examining the 

victim and the forensic interviewer.

4. Ineffective Assistance in Failing to Object 

to Inconclusive DNA Testing Results, Offering 

Exhibit 20, and Failing to Object to Testimony 

Describing Testing Done by Another Forensic 

Biologist Who Did Not Testify at Trial

Wood makes several claims of ineffective assistance relating 

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

First, Wood assigns and argues that counsel was ineffective 

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

was present on the external vaginal swabs and that she could 

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

or oral swabs. Wood also argues counsel was ineffective in 

failing to object to exhibit 18, which shows there was an insufficient quantity of DNA present on the external vaginal swabs 

72 Brief for appellant at 36.
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to obtain any profile to attempt to match with Wood’s profile 

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

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

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

cumulative to the biologist’s testimony stating male DNA was 

found. Wood argues the biologist’s testimony was inadmissible 

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

that male DNA did not lead to conclusive results. For the foregoing reasons, we find no merit to this argument.

[37,38] An expert does not have to couch his or her opinion in the magic words of “reasonable certainty,” but it must 

be sufficiently definite and relevant to provide a basis for the 

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

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

inferences of equal probability, so the choice between them is 

a matter of conjecture. 75

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

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

the external vaginal swabs was insufficiently definite and relevant. We held in Johnson that the trial court had improperly 

admitted, over defense counsel’s objections, irrelevant DNA 

testing results, though ultimately the evidentiary error was 

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

DNA profile could be neither included nor excluded from a 

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

expert testified the results were inconclusive because there 

was only a partial minor profile obtained from the samples; 

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

alleles matched those found in the partial minor profile of 

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

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

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

75 Id.

76 Id. See, also, State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
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the minor contributor. The expert also testified that there may

have been a minor contributor’s DNA on one of the fingernails and that she could not draw any conclusions about the 

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

in the crime. 77

[39,40] We held in Johnson:

Presenting this evidence without offering any statistical 

relevance of the matching alleles she found, or the probability that the minor profile would exclude a random person, suggested to the jury that [the defendant] was linked 

to the evidence and that the proof would be even stronger 

if investigators had found more DNA. 78

We explained that the potential precision of DNA testing is 

well known; thus, jurors might wrongly assume, absent evidence of statistical relevance, that any DNA profile match is 

extremely unlikely and therefore extremely probative. 79 We 

held that because of the significance that jurors will likely 

attach to DNA evidence, the value of inconclusive testing 

results without statistical relevance is substantially outweighed 

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

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

on the external vaginal swabs taken during the physical examination of the victim is not analogous to the evidence found in 

Johnson to be lacking in probative value. The biologist conclusively testified that male DNA was present. We disagree with 

Wood’s supposition that conclusive evidence of the presence of 

male DNA was nevertheless insufficiently certain and was misleading because further DNA testing could not obtain a DNA 

profile from it.

[41] In an alleged sexual assault described by a female victim as involving her genital area and a male perpetrator, the 

77 State v. Johnson, supra note 74.

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

79 State v. Johnson, supra note 74.

80 See id.
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presence of male DNA near the victim’s genital area is relevant 

to whether the assault occurred as the victim described, and 

such evidence is not outweighed by a danger of confusing the 

issues or misleading the jurors even if the DNA is of insufficient quantity or quality to obtain a profile. 81 Here, the presence of male DNA on the external vaginal swabs of the victim’s 

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

more probable, even if the DNA did not identify Wood specifically. Because the testimony concerning the presence of male 

DNA on the external vaginal swabs was admissible, defense 

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

We also find the biologist’s testimony acknowledging the 

hypothetical possibility of the presence of male DNA that she 

was unable to detect on other swabs distinguishable from the 

testimony in Johnson that there may have been a minor contributor. 82 The biologist simply acknowledged she could not 

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

great enough amounts to be detected using this form of testing.” Such testimony did not call for speculation but merely 

affirmed that simply because something microscopic cannot be 

detected by the current scientific methods available that does 

not mean it does not exist.

The record affirmatively refutes Wood’s claim that counsel 

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

that he alleges was insufficiently certain and definite.

Wood also assigns and argues with respect to the DNA 

evidence that defense counsel was ineffective by introducing 

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

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

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

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

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

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

809 (2013). But see State v. Gutierrez, 391 Wis. 2d 799, 943 N.W.2d 870 

(2020).

82 See State v. Johnson, supra note 74.
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conducted by her. We find the record affirmatively refutes this 

claim of ineffective assistance of counsel.

In light of the admissibility of the presence of male DNA on 

the external vaginal swabs, it is reasonably apparent from the 

record that defense counsel’s strategy in introducing exhibit 

20 and in not objecting to the biologist’s testimony pertaining 

to exhibit 20 was to minimize the prejudice of the biologist’s 

prior testimony that male DNA was found. By introducing 

exhibit 20 and not objecting to the biologist’s testimony about 

the testing reflected therein, defense counsel demonstrated 

that even the most sophisticated testing was unable to detect 

a profile from that male DNA, which, notably, was not from 

semen. This would have been consistent with minimal amounts 

of DNA and allowed defense counsel to argue the jury should 

infer that the male DNA found was the result of indirect transfer during the victim’s prolonged presence in Wood’s home. In 

light of the presumption that defense counsel made all significant decisions in the exercise of reasonable professional judgment, we cannot find that the defense counsel’s decision was 

unreasonable.

5. Failure to Investigate Case Fully

[42,43] Wood’s argument that his trial counsel was ineffective in “Failing to Investigate the Case Fully” is insufficiently 

specific. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the 

error to be considered by an appellate court. 83 As stated, when 

the claim is raised in a direct appeal, the appellant is not 

required to allege prejudice; however, an appellant must make 

specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel. 84 Assignments of 

error on direct appeal regarding ineffective assistance of trial 

counsel must specifically allege deficient performance, and 

83 State v. Figures, supra note 2.

84 Id.
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an appellate court will not scour the remainder of the brief in 

search of such specificity. 85

We held, in State v. Mrza,

 86 that an assignment of error that 

trial counsel was ineffective by “‘fail[ing] to adequately investigate [the defendant’s] defenses’” lacked the specificity we 

demand on direct appeal. Wood’s assignment of error is similar. It lacks any specificity as to what component of investigation his counsel was allegedly deficient in failing to conduct. 

Therefore, we do not address it.

6. Failure to Request 

Lesser-Included Instruction

[44,45] Lastly, we consider Wood’s argument that his trial 

counsel was ineffective by failing to request an instruction on 

the lesser-included offense of attempted first degree sexual 

assault of a child. A court must instruct on a lesser-included 

offense if (1) the elements of the lesser offense for which an 

instruction is requested are such that one cannot commit the 

greater offense without simultaneously committing the lesser 

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

acquitting the defendant of the greater offense and convicting 

the defendant of the lesser offense. 87 The Nebraska Supreme 

Court has previously held that attempted first degree sexual 

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

sexual assault of a child. 88

The defense’s expert nurse practitioner testified there were 

no injuries indicative of sexual abuse; therefore, according 

to Wood, there was a rational basis for acquitting him of 

the greater offense and convicting him of the lesser offense. 

Under § 28-319.01, as relevant here, a person commits sexual 

assault of a child in the first degree when he or she subjects 

85 State v. Mrza, supra note 73.

86 See id. at 935, 926 N.W.2d at 86.

87 State v. Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009).

88 See State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).
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another person under 12 years of age to sexual penetration 

and the actor is at least 19 years of age or older. Under Neb. 

Rev. Stat. § 28-201 (Reissue 2016), a person shall be guilty 

of an attempt to commit a crime if that person intentionally 

engages in conduct which would constitute the crime if the 

attendant circumstances were as he or she believes them to be 

or that person intentionally engages in conduct which, under 

the circumstances as he or she believes them to be, constitutes 

a substantial step in a course of conduct intended to culminate 

in his or her commission of the crime. When causing a particular result is an element of the crime, a person shall be guilty 

of an attempt to commit the crime if, acting with the state of 

mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, he 

or she intentionally engages in conduct which is a substantial 

step in a course of conduct intended or known to cause such 

a result. 89 Conduct shall not be considered a substantial step 

under this section unless it is strongly corroborative of the 

defendant’s criminal intent. 90

There was conflicting evidence whether there were sequelae 

of a sexual assault by penetration found during the physical 

examination of the victim. The touch DNA was on the victim’s underwear, and the male DNA detected was outside of 

the vaginal opening. But it is apparent from the trial record 

that counsel’s strategy was to argue that nothing inappropriate 

occurred during the sleepover. It is a valid strategy to obtain 

a full acquittal through an “‘all or nothing’ defense.” 91 We 

will not second-guess that strategy. The record affirmatively 

rebuts Wood’s claim that defense counsel was deficient by 

failing to request an instruction on the lesser-included offense 

of attempt.

89 § 28-201.

90 Id.

91 Williams v. State, 353 Ga. App. 821, 830, 840 S.E.2d 32, 39 (2020). See 

Druery v. Thaler, 647 F.3d 535 (5th Cir. 2011).
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VI. CONCLUSION

For the foregoing reasons, we find no merit to Wood’s 

claims of trial error. We likewise find no merit to Wood’s 

claims of ineffective assistance of counsel, with the exception 

that we do not reach the merits of his argument that counsel 

was ineffective in failing to adequately support his motion for 

a DNA expert.

Affirmed.