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Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

STATE v. HOWARD

Cite as 26 Neb. App. 628

State of Nebraska, appellee, v. 

John J. Howard, appellant.

___ N.W.2d ___

Filed December 4, 2018. No. A-17-543.

1. Trial: Appeal and Error. In order to preserve, as a ground of appeal, 

an opponent’s misconduct during closing argument, the aggrieved party 

must have objected to improper remarks no later than at the conclusion 

of the argument.

2. Trial: Motions for Mistrial. When a party has knowledge during trial 

of irregularity or misconduct, the party must timely assert his or her 

right to a mistrial.

3. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and 

Error. A party who fails to make a timely motion for mistrial based 

on prosecutorial misconduct waives the right to assert on appeal that 

the court erred in not declaring a mistrial due to such prosecutorial 

misconduct.

4. Trial: Juries: Evidence. Trial courts have broad discretion in allowing the jury to have unlimited access to properly received exhibits that 

constitute substantive evidence of a defendant’s guilt.

5. Trial: Juries: Evidence: Appeal and Error. A trial court’s decision to 

allow a jury during deliberations to rehear or review evidence, whether 

such evidence is testimonial or nontestimonial, is reviewed by an appellate court for an abuse of discretion.

6. Trial: Testimony: Evidence: Words and Phrases. Testimonial evidence refers to trial evidence, including live oral examinations, affidavits and depositions in lieu of live testimony, and tapes of examinations 

conducted prior to the time of trial for use at trial in accordance with 

procedures provided by law.

7. Records: Appeal and Error. It is incumbent upon an appellant to supply a record which supports his or her appeal.

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

apply, the admissibility of evidence is controlled by the Nebraska 

Nebraska Supreme Court Online Library

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

12/11/2018 12:12 AM CST
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Nebraska Court of Appeals Advance Sheets

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STATE v. HOWARD

Cite as 26 Neb. App. 628

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

such discretion a factor in determining admissibility.

9. Trial: Waiver: Appeal and Error. A party may not waive an error, 

gamble on a favorable result, and, upon obtaining an unfavorable result, 

assert the previously waived error.

10. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial 

counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the 

record; otherwise, the issue will be procedurally barred.

11. Effectiveness of Counsel: Proof. 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.

12. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and 

Error. Determining whether defense counsel was ineffective in failing 

to object to prosecutorial misconduct requires an appellate court to first 

determine whether the petitioner has alleged any action or remarks that 

constituted prosecutorial misconduct.

13. Trial: Prosecuting Attorneys. A prosecutor is entitled to draw inferences from the evidence in presenting his or her case, and such inferences generally do not amount to prosecutorial misconduct.

14. Pretrial Procedure: Prosecuting Attorneys: Evidence. A prosecutor 

has a duty to disclose all favorable evidence to a criminal defendant 

prior to trial.

Appeal from the District Court for Douglas County: Thomas

A. Otepka, Judge. Affirmed.

Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

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

Klein for appellee.

Pirtle, Riedmann, and Welch, Judges.

Riedmann, Judge.

I. INTRODUCTION

John J. Howard appeals his convictions and sentences in the 

district court for Douglas County of first degree sexual assault, 
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STATE v. HOWARD

Cite as 26 Neb. App. 628

sexual assault of a child, and first degree sexual assault of a 

child. We find that the record is insufficient to address several 

of his ineffective assistance of counsel claims but otherwise 

find no merit to the arguments raised on appeal. We therefore affirm.

II. BACKGROUND

Howard was charged with first degree sexual assault, count 

1; sexual assault of a child, count 2; and first degree sexual 

assault of a child, count 3. The charges were based on allegations made by two of his daughters, M.H. and S.H., ages 

22 and 16 respectively at the time of trial. Both daughters 

claimed that when they were around the ages of 4 or 5, 

Howard would digitally penetrate them when giving them 

baths. S.H. also described incidents, prior to the time she was 

in third grade, where Howard would force her to perform oral 

sex on him and would touch her vagina or force her to touch 

his penis.

During the investigation of the matter, M.H. made a “oneparty consent phone call” (phone call) to Howard, which was 

recorded by police. The recording was received into evidence 

at trial and played for the jury. During the call, M.H. repeatedly attempted to get Howard to admit that he had intentionally digitally penetrated her while bathing her when she was 

younger, and Howard’s standard response was that he was 

just bathing her how her mother had shown him.

The matter proceeded to a jury trial. During deliberations, 

the jury asked to rehear the recorded phone call, but the district court denied the jury’s request. The jury ultimately found 

Howard guilty of the charges. He was sentenced to imprisonment for 30 to 50 years on count 1, 2 to 3 years on count 

2, and 45 to 60 years on count 3, with all sentences to run 

consecutively. Howard now appeals to this court. Additional 

facts will be provided below as necessary to address Howard’s 

assigned errors.
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STATE v. HOWARD

Cite as 26 Neb. App. 628

III. ASSIGNMENTS OF ERROR

Howard assigns that the district court erred in (1) permitting 

the prosecutor to repeatedly misstate evidence during closing 

arguments, (2) denying the jury’s request to rehear the recorded 

phone call during deliberations, (3) overruling his objection to 

a police detective’s testimony that Howard apologized during 

the recorded call for digitally penetrating M.H., and (4) denying his motion for mistrial with respect to the victims’ mother’s 

testimony and the State’s failure to disclose all impeachment 

evidence. He also claims that he received ineffective assistance 

of trial counsel in numerous respects.

IV. ANALYSIS

1. Prosecutorial Misconduct

During Closing Arguments

Howard assigns and argues that the district court erred in 

denying his motion for mistrial after the prosecutor committed 

misconduct by repeatedly misstating evidence during closing 

arguments. At trial, however, Howard did not object to the 

prosecutor’s statements. Shortly after closing arguments began, 

Howard interrupted and asked if the parties could approach 

the bench. He asserted that there was a graphic displayed 

for the jury indicating that during the recorded phone call, 

Howard admitted to digital penetration, which he alleged was 

a mischaracterization of the evidence. He therefore objected 

and moved for mistrial. The motion was denied. The State 

then completed its closing argument, including making several statements Howard challenges on appeal, with no further 

objection from Howard.

[1-3] In order to preserve, as a ground of appeal, an opponent’s misconduct during closing argument, the aggrieved party 

must have objected to improper remarks no later than at the 

conclusion of the argument. State v. Watt, 285 Neb. 647, 832 

N.W.2d 459 (2013). Likewise, when a party has knowledge 

during trial of irregularity or misconduct, the party must timely 
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STATE v. HOWARD

Cite as 26 Neb. App. 628

assert his or her right to a mistrial. State v. Custer, 292 Neb. 

88, 871 N.W.2d 243 (2015). A party who fails to make a timely 

motion for mistrial based on prosecutorial misconduct waives 

the right to assert on appeal that the court erred in not declaring 

a mistrial due to such prosecutorial misconduct. Id.

Because Howard did not object at trial to the statements he 

now challenges or move for a mistrial on that basis, this issue 

has not been properly preserved for appeal. Howard relies 

upon Neb. Rev. Stat. § 25-1141 (Reissue 2016) to argue that 

his initial objection was sufficient to challenge all of the prosecutor’s statements and that he was not required to repeatedly 

object to every statement he now challenges. We first note that 

Howard never objected to any statements made during closing arguments; rather, he objected only to the graphic that was 

displayed for the jury. His objection to the graphic does not 

encompass the prosecutor’s statements as well.

Additionally, § 25-1141 provides that where an objection 

has once been made to the admission of testimony and overruled by the court, it is unnecessary to repeat the same objection to further testimony of the same nature by the same witness in order to save the error, if any, in the ruling of the court 

whereby such testimony was received. By its plain language, 

§ 25-1141 applies to objections made to the testimony of the 

same nature by the same witness. Here, Howard’s objections 

were not to the testimony of a witness, but to a demonstrative 

exhibit and/or statements made by the prosecutor during closing arguments. We therefore find this statute inapplicable in the 

instant case.

To the extent Howard challenges the denial of his motion 

for mistrial based on the graphic displayed for the jury, the 

graphic is not contained in the record before us, and we therefore cannot conclude that the district court abused its discretion 

in denying the motion for mistrial. See State v. Ramirez, 287 

Neb. 356, 842 N.W.2d 694 (2014) (whether to grant mistrial 

is within trial court’s discretion, and appellate court will not 

disturb its ruling unless court abused its discretion).
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Nebraska Court of Appeals Advance Sheets

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STATE v. HOWARD

Cite as 26 Neb. App. 628

2. Allowing Jury to Rehear Recorded

Phone Call During Deliberations

During deliberations, the jury asked the court if it could 

rehear the recorded phone call between Howard and M.H. The 

court denied the jury’s request. On appeal, Howard argues 

that the district court erred in doing so, because it was clear 

that the jury was confused by statements the prosecutor made 

during closing arguments, which he claims mischaracterized 

the evidence. He argues that allowing the jury to rehear 

the recording for itself would have provided an opportunity 

to mitigate some of the prejudice caused by the prosecutor’s statements. We find no abuse of discretion in the trial 

court’s ruling.

[4,5] Under Nebraska case law, the trial judge has discretion 

to allow the jury to reexamine evidence during deliberations. 

State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013). 

Under this rule, trial courts have broad discretion in allowing 

the jury to have unlimited access to properly received exhibits 

that constitute substantive evidence of the defendant’s guilt. 

Id. A trial court’s decision to allow a jury during deliberations 

to rehear or review evidence, whether such evidence is testimonial or nontestimonial, is reviewed by an appellate court for 

an abuse of discretion. State v. Vandever, 287 Neb. 807, 844 

N.W.2d 783 (2014).

[6] In the present case, the parties agree, as do we, that the 

recorded phone call is properly characterized as substantive, 

nontestimonial evidence. As explained in State v. Vandever, 

supra, testimonial evidence refers to trial evidence, including 

live oral examinations, affidavits and depositions in lieu of 

live testimony, and tapes of examinations conducted prior to 

the time of trial for use at trial in accordance with procedures 

provided by law. Here, although verbal in nature, the recording 

was not prepared as or admitted into evidence as a substitute 

for live testimony at trial. Therefore, the trial court had broad 

discretion in allowing or disallowing the jury to rehear the 

recording during deliberations.
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STATE v. HOWARD

Cite as 26 Neb. App. 628

The record before us includes a copy of the jury’s question 

and the judge’s notes, which report that Howard asked that the 

jury be permitted to rehear the recording, but the State objected 

to the request. If the parties discussed the issue with the court 

prior to the court’s responding to the jury’s question, a transcription of their discussion is not contained in our record. 

Thus, we are unable to adequately review the court’s rationale 

for denying the jury’s request.

[7] It is incumbent upon an appellant to supply a record 

which supports his or her appeal. State v. Boche, 294 Neb. 912, 

885 N.W.2d 523 (2016). Absent such a record, as a general 

rule, the decision of the lower court as to those errors is to be 

affirmed. Id. Given that a trial court has broad discretion to 

disallow a jury to rehear nontestimonial evidence and based 

on the record before us, we cannot conclude that the district 

court’s decision in this case was an abuse of its discretion. We 

therefore find no merit to this assigned error.

3. Objection to Detective’s Testimony

During redirect examination of the police detective who 

investigated the case, the State asked her to confirm that 

during the recorded phone call Howard had apologized to 

M.H. for digitally penetrating her, and the detective responded, 

“Yes.” Howard objected, arguing that the question and answer 

misstated the evidence, but his objection was overruled. On 

appeal, Howard asserts that the district court erred in overruling his objection.

[8] In proceedings where the Nebraska Evidence Rules apply, 

the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the 

rules make such discretion a factor in determining admissibility. State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012). 

Where the Nebraska Evidence Rules commit the evidentiary 

question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. Id. 

A judicial abuse of discretion exists only when the reasons or 
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STATE v. HOWARD

Cite as 26 Neb. App. 628

rulings of a trial judge are clearly untenable, unfairly depriving 

a litigant of a substantial right and denying a just result in matters submitted for disposition. Id.

In the present case, the decision to overrule Howard’s objection was not an abuse of discretion. During the recorded phone 

call, Howard repeatedly apologized to M.H., albeit without 

directly admitting or denying intentional digital penetration. As 

discussed in greater detail below, the State’s interpretation of 

the phone call was based on reasonably drawn inferences from 

Howard’s comments during the phone call and therefore did 

not mischaracterize the evidence. As such, this assigned error 

lacks merit.

4. Motion for Mistrial Based on

Testimony of Howard’s Ex-Wife

Howard argues that the district court erred in denying 

his motion for mistrial with respect to the testimony of his 

ex-wife. At some point after S.H. disclosed the sexual abuse, 

she alleged that during one particular incident, Howard made 

her wear a “sports bra” belonging to her mother, who is 

Howard’s ex-wife. During a deposition of Howard’s ex-wife, 

she apparently denied owning any sports bras. At trial, however, during cross-examination, she testified that she did own 

a sports bra. She admitted that during her deposition she had 

denied owning one but said that she subsequently discovered 

that she did, in fact, have one. During redirect, she said that 

she raised the issue with the county attorney before trial 

because she realized that she had not given an honest answer 

in her deposition.

Howard did not object when his ex-wife was testifying 

regarding the sports bra issue, nor did he immediately move 

for a mistrial. After her testimony concluded, the State called 

one additional witness to testify before it rested. Howard then 

began presenting his defense by calling his first witness to testify. After that witness’ testimony concluded, Howard moved 

for a mistrial based on his ex-wife’s testimony. He claimed 
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Nebraska Court of Appeals Advance Sheets

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STATE v. HOWARD

Cite as 26 Neb. App. 628

that the State should have disclosed the inaccuracy of her 

deposition testimony prior to trial. The district court denied the 

motion for mistrial.

[9] When a party has knowledge during trial of irregularity 

or misconduct, the party must timely assert his or her right 

to a mistrial. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 

(2010). A party may not waive an error, gamble on a favorable 

result, and, upon obtaining an unfavorable result, assert the 

previously waived error. See id. The Nebraska Supreme Court 

has held that a motion for mistrial made after the testimony of 

a witness who followed the witness whose testimony was the 

basis for the mistrial was not timely. See State v. Morrow, 237 

Neb. 653, 467 N.W.2d 63 (1991).

In the instant case, Howard did not move for a mistrial 

based on his ex-wife’s testimony until two additional witnesses 

had testified. His motion was therefore untimely, and the issue 

has not been preserved for appeal.

5. Ineffective Assistance of Counsel

[10] Howard is represented on direct appeal by different 

counsel than the counsel who represented him at trial. When 

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

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

issue of trial counsel’s ineffective performance which is known 

to the defendant or is apparent from the record; otherwise, the 

issue will be procedurally barred. State v. Schwaderer, 296 

Neb. 932, 898 N.W.2d 318 (2017). An ineffective assistance 

of counsel claim is raised on direct appeal when the claim 

alleges deficient performance with enough particularity for 

(1) an appellate court to make a determination of whether the 

claim can be decided upon the trial record and (2) a district 

court later reviewing a petition for postconviction relief will 

recognize whether the claim was brought before the appellate 

court. Id.

The fact that an ineffective assistance of counsel claim is 

raised on direct appeal does not necessarily mean that it can 
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STATE v. HOWARD

Cite as 26 Neb. App. 628

be resolved. Id. The determining factor is whether the record is 

sufficient to adequately review the question. Id.

[11] 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. State v. Wells, 300 Neb. 296, 912 N.W.2d 896 (2018). 

To show deficient performance, a defendant must show that 

counsel’s performance did not equal that of a lawyer with 

ordinary training and skill in criminal law. Id. To show prejudice, the defendant must demonstrate a reasonable probability 

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

proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in 

the outcome. Id. The two prongs of this test may be addressed 

in either order, and the entire ineffectiveness analysis should be 

viewed with a strong presumption that counsel’s actions were 

reasonable. Id.

Howard asserts that his trial counsel was ineffective in 

numerous respects. We address his claims below.

(a) Failure to Object During 

Closing Arguments

Howard asserts that trial counsel was ineffective in failing 

to object to the prosecutor’s statements during closing arguments. Specifically, he contends that the prosecutor committed 

misconduct when she repeatedly misstated the evidence by 

claiming that during the recorded phone call he never denied 

digitally penetrating M.H.

[12,13] Determining whether defense counsel was ineffective in failing to object to prosecutorial misconduct requires 

an appellate court to first determine whether the petitioner 

has alleged any action or remarks that constituted prosecutorial misconduct. State v. Ely, 295 Neb. 607, 889 N.W.2d 377 

(2017). A prosecutor’s conduct that does not mislead and 
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STATE v. HOWARD

Cite as 26 Neb. App. 628

unduly influence the jury does not constitute misconduct. Id. 

A prosecutor is entitled to draw inferences from the evidence 

in presenting his or her case, and such inferences generally do 

not amount to prosecutorial misconduct. Id.

After reviewing the recorded phone call, we conclude 

that the prosecutor’s statements did not constitute misconduct, because they rested on reasonably drawn inferences 

from the evidence. The theme of the State’s comments with 

respect to the recorded call was that Howard did not react to 

M.H.’s allegations with outright denials. Instead, he repeatedly asserted that he was bathing M.H. in the manner in which 

her mother had taught him. Thus, when M.H. accused him of 

digitally penetrating her, his response was not that he never 

did so, but, rather, that he was doing what her mother told 

him to do.

We recognize that at one point, Howard responded to M.H.’s 

accusation of digital penetration by saying that “it wasn’t in 

you, it was around the rim, I mean, is how I remember her 

showing me.” The statement that “it wasn’t in you” could 

constitute an outright denial of digital penetration, but when 

considered in context of the entire sentence, what Howard 

actually said was that he remembers M.H.’s mother showing him how to bathe M.H. in a manner that did not include 

putting his fingers in her vagina. That statement is different 

than Howard’s denying that digital penetration ever actually 

occurred. Howard appeared to make other quasi-denials during 

the conversation when he made statements such as, “I don’t 

believe I did that,” “I don’t think I ever did that,” or more frequently, “I cleaned you the way your mom showed me to clean 

you” and other words to that effect. However, the prosecutor’s 

comments were inferences that could reasonably be drawn 

from what Howard did not say to M.H. Accordingly, because 

we find that the prosecutor’s statements made during closing 

arguments were reasonably drawn inferences and thus not 

improper, trial counsel was not ineffective in failing to object 

and move for mistrial.
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Nebraska Court of Appeals Advance Sheets

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STATE v. HOWARD

Cite as 26 Neb. App. 628

(b) Failure to Timely Move 

for Mistrial

Howard next alleges that his trial counsel was ineffective 

in failing to timely move for a mistrial on the basis of his 

ex-wife’s testimony. He claims that because the State knew 

prior to trial that she had testified falsely during her deposition, 

the State was required under Brady v. Maryland, 373 U.S. 83, 

83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), to disclose this information to him before trial.

[14] In Brady v. Maryland, the U.S. Supreme Court held that 

a prosecutor has a duty to disclose all favorable evidence to a 

criminal defendant prior to trial. See State v. Harris, 296 Neb. 

317, 893 N.W.2d 440 (2017). While the fact that Howard’s 

ex-wife owned a sports bra corroborated S.H.’s testimony, 

and thus was unfavorable to Howard, the record reveals that 

Howard relied upon his ex-wife’s denial in her deposition to 

prove the improbability of S.H.’s version of the events. He 

confirmed through several witnesses that S.H. had reported 

wearing a sports bra belonging to her mother, who is Howard’s 

ex-wife, during one of these incidents, and it is clear that he 

questioned his ex-wife to prove that S.H.’s memory could not 

possibly be correct. However, his attempt to negate S.H.’s 

version of the events was thwarted by his ex-wife’s changed 

testimony.

Because the record on direct appeal contains no information as to why trial counsel did not immediately move for a 

mistrial, we find the record insufficient to address this claim.

(c) Failure to Properly 

Cross-Examine M.H.

Howard asserts that trial counsel was ineffective in failing to cross-examine M.H. about allegations that she also 

had been inappropriately touched by her grandfather. At trial, 

M.H. testified that she did not tell her mother about the sexual 

abuse from Howard earlier because of the nature of their relationship. In other words, M.H. asserted that she did not feel 
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STATE v. HOWARD

Cite as 26 Neb. App. 628

comfortable disclosing the abuse to her mother at the time 

it occurred.

Howard alleges, however, that his ex-wife testified in her 

deposition that M.H. immediately reported to her an incident 

where M.H.’s grandfather had inappropriately touched her 

when she was approximately 11 years old. Howard attempted 

to impeach M.H.’s testimony at trial through questioning of 

his ex-wife rather than by cross-examination of M.H., and the 

State successfully objected to such questioning of his ex-wife 

on the grounds of improper impeachment. We find the record 

is insufficient to address this claim because the deposition of 

Howard’s ex-wife is not in our record, and the record does not 

contain any information as to why trial counsel elected not to 

raise this issue during cross-examination of M.H.

(d) Failure to Call Witness

Howard argues that trial counsel was ineffective in failing 

to call Dr. Kirk Newring as a witness at trial. According to 

Howard, Newring was hired to evaluate the circumstances of 

this case and prepared a report of his conclusions. Newring’s 

name was included on Howard’s witness list filed with the 

district court prior to trial. The State filed a motion in limine 

to exclude Newring’s testimony, and the district court reserved 

ruling on the motion. Newring was not called to testify at trial. 

The record on direct appeal is insufficient to address this claim 

because we are unable to ascertain why trial counsel elected 

not to call Newring to testify.

(e) Failure to Properly Investigate 

and Present Defense

Finally, Howard claims that trial counsel was ineffective 

in failing to properly investigate and present several key 

aspects of his defense. He lists 16 different ways in which 

he alleges trial counsel’s performance in this respect was 

deficient. Each of these alleged failures involve trial strategy. 

An evaluation of trial counsel’s actions, or inactions as the 
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STATE v. HOWARD

Cite as 26 Neb. App. 628

case may be, would require an evaluation of trial strategy and 

of matters not contained in the record. We conclude that the 

record on direct appeal is not sufficient to adequately review 

these claims.

V. CONCLUSION

As concluded above, the record on direct appeal is insufficient to address several of the ineffective assistance of counsel 

claims Howard raises on direct appeal. Otherwise, finding no 

merit to the arguments raised here, we affirm Howard’s convictions and sentences.

Affirmed.