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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

STATE v. BARBER

Cite as 28 Neb. App. 820

State of Nebraska, appellee, v. 

Jesse D. Barber, appellant.

___ N.W.2d ___

Filed September 8, 2020. No. A-18-1097.

1. Motions for New Trial: Appeal and Error. The standard of review for 

the denial of a motion for new trial is whether the trial court abused its 

discretion in denying the motion.

2. Jury Instructions: Judgments: Appeal and Error. Whether jury 

instructions given by a trial court are correct is a question of law. When 

dispositive issues on appeal present questions of law, an appellate court 

has an obligation to reach an independent conclusion irrespective of the 

decision of the court below.

3. Jury Instructions: Appeal and Error. Jury instructions are subject 

to the harmless error rule, and an erroneous jury instruction requires 

reversal only if the error adversely affects the substantial rights of the 

complaining party.

4. Verdicts: Appeal and Error. Harmless error review looks to the basis 

on which the trier of fact actually rested its verdict; the inquiry is 

not whether in a trial that occurred without the error a guilty verdict 

surely would have been rendered, but, rather, whether the actual guilty 

verdict rendered in the questioned trial was surely unattributable to 

the error.

5. Effectiveness of Counsel: Appeal and Error. Appellate review of a 

claim of ineffective assistance of counsel is a mixed question of law and 

fact. When reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court for clear 

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

to the defendant as part of the two-pronged test articulated in Strickland 

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

an appellate court reviews such legal determinations independently of 

the lower court’s decision.

Nebraska Supreme Court Online Library

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

09/15/2020 09:07 AM CDT
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STATE v. BARBER

Cite as 28 Neb. App. 820

6. Criminal Law: Words and Phrases. The corpus delicti of a crime 

is the body or substance of a crime—the fact that a crime has been 

committed.

7. Criminal Law. The corpus delicti may be proved by circumstantial 

evidence.

8. ____. Extrajudicial admissions or a voluntary confession is insufficient 

to prove that a crime has been committed, but either or both are competent evidence of the fact and may, with corroborative evidence of facts 

and circumstances, establish the corpus delicti and guilty participation of 

the defendant.

9. Criminal Law: Proof: Confessions. The rule that the corpus delicti 

cannot be proved by the extrajudicial admission of the defendant is 

true as a general proposition, yet confessions or admissions may be 

considered in connection with the other evidence to establish the corpus delicti. It is not necessary to prove the corpus delicti by evidence 

entirely independent and exclusive of the confession or admissions.

10. ____: ____: ____. While a voluntary admission tending to prove a crime 

is insufficient standing alone to prove the corpus delicti, it is competent 

evidence, and may with slight corroborating circumstances be sufficient 

to warrant a conviction.

11. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admission, as a formal act done in the course of judicial proceedings, is a 

substitute for evidence and thereby waives and dispenses with the production of evidence by conceding for the purpose of litigation that the 

proposition of fact alleged by an opponent is true.

12. Pleadings: Waiver. A judicial admission waives all right to deny the 

fact admitted.

13. Circumstantial Evidence: Words and Phrases. Circumstantial evidence is evidence which, without going directly to prove the existence 

of a fact, gives rise to a logical inference that such fact exists.

14. Sexual Assault. Under the statutory provision governing the commission of first degree sexual assault when an alleged attacker knew or 

should have known the alleged victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct, analysis 

in determining if such provision was violated requires the existence of a 

significant abnormality, such as severe intoxication or other substantial 

mental or physical impairment, on the part of the alleged victim, and 

knowledge of the abnormality on the part of the alleged attacker.

15. Jury Instructions: Appeal and Error. The failure to object to a jury 

instruction after it has been submitted to counsel for review precludes 

raising an objection on appeal absent plain error.

16. Appeal and Error. Plain error may be found on appeal when an error 

unasserted or uncomplained of at trial, but plainly evident from the 
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STATE v. BARBER

Cite as 28 Neb. App. 820

record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness 

of the judicial process.

17. Sexual Assault. A victim’s lack of consent is not an element of the 

crime of sexual assault when the victim is incapable of resisting or 

appraising the nature of his or her conduct.

18. Jury Instructions: Appeal and Error. Alleged errors in a jury instruction are examined using a two-step process. First, the court reviews the 

case based on the errors assigned and argued, or it may find plain error. 

Second, when an error is identified, the court considers whether the 

error was harmless or prejudicial.

19. ____: ____. Jury instructions are subject to the harmless error rule, and 

an erroneous jury instruction requires reversal only if the error adversely 

affects the substantial rights of the complaining party.

20. Verdicts: Appeal and Error. Harmless error review looks to the basis 

on which the trier of fact actually rested its verdict; the inquiry is not 

whether in a trial that occurred without the error a guilty verdict surely 

would have been rendered, but, rather, whether the actual guilty verdict 

rendered in the questioned trial was surely unattributable to the error.

21. Jury Instructions: Evidence: Appeal and Error. When examining for 

harmless error, the court may look at a variety of factors including the 

jury instructions as a whole, the evidence presented at trial, and the closing arguments.

22. ____: ____: ____. The court may consider the facts of the case when 

determining whether a jury instruction was confusing or misleading.

23. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence 

to the contrary, it is presumed that a jury followed the instructions given 

in arriving at its verdict.

24. Effectiveness of Counsel: Postconviction: Records: 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 in a subsequent postconviction proceeding.

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

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

not necessarily mean that it can be resolved. The determining factor is 

whether the record is sufficient to adequately review the question.

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

Error. In order to avoid a procedural bar to a future postconviction 

proceeding, a claim of ineffective assistance of counsel must be presented with enough particularity for (1) an appellate court to make a 

determination of whether the claim can be decided upon the trial record 
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STATE v. BARBER

Cite as 28 Neb. App. 820

and (2) a district court later reviewing a petition for postconviction relief 

to be able to recognize whether the claim was brought before the appellate court.

27. Effectiveness of Counsel: Appeal and Error. The trial record reviewed 

on appeal is devoted to issues of guilt or innocence and does not usually 

address issues of counsel’s performance.

Appeal from the District Court for Dawes County: Travis P. 

O’Gorman, Judge. Affirmed.

Mark E. Rappl for appellant.

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

for appellee.

Pirtle, Riedmann, and Welch, Judges.

Pirtle, Judge.

INTRODUCTION

Jesse D. Barber was found guilty of first degree sexual 

assault following a jury trial in Dawes County, Nebraska, on 

September 6 and 7, 2018. In this direct appeal, we affirm the 

judgment of the district court as to errors raised. With the 

exception of the ineffective assistance claim relating to the jury 

instructions, we cannot reach the ineffective assistance of counsel claims for the reason that the trial record is insufficient.

BACKGROUND

The charges against Barber arose out of a sexual assault 

of A.N. in Barber’s home. In 2017, Barber was charged as 

follows:

On or about June 29, 2013, . . . Barber, the Defendant, 

then and there being, in Dawes County, Nebraska, did 

subject another person to sexual penetration without consent of the victim, or knew or should have known that the 

victim was mentally or physically incapable of resisting 

or appraising the nature of her conduct, in violation of 

Section 28-319, a Class II Felony.
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STATE v. BARBER

Cite as 28 Neb. App. 820

Barber was acquainted with A.N. because he had been dating 

her mother since May 2013. Barber lived in a house by himself 

in Chadron, Nebraska. A.N. lived in Chadron with her father. 

A.N.’s mother lived near Omaha, Nebraska. At the time of the 

incident, A.N. was 17 years old and had just finished her junior 

year of high school. Barber was 27 years old and employed by 

his family’s landscaping and floral business.

On the evening of June 28, 2013, A.N. was drinking vodka 

and wine coolers at a party at a friend’s house. A.N. ultimately 

vomited in the bathroom, and at that point, she decided she 

wanted to leave the party and go to sleep. A.N. was afraid to 

go home to her father’s house because she knew he would be 

angry and disappointed about her behavior. A.N. was not as 

worried about her mother’s reaction, so she called her mother 

for ideas about what to do. A.N.’s mother suggested that A.N. 

go to Barber’s house, so A.N. set off on foot. In the meantime, 

A.N.’s mother called Barber to let him know A.N. was on 

her way and that it was all right with her that A.N. sleep at 

his house.

While A.N. was walking to Barber’s house, she came to the 

attention of a neighbor who noticed her struggling to walk down 

the street. The neighbor observed A.N. losing her balance and 

walking out of her sandals, so he left his porch and approached 

her to ask if she needed help. The neighbor believed A.N. to be 

under the influence of alcohol, so he walked with her because 

he was afraid that if she fell down, she might pass out on the 

sidewalk. While they were walking, the neighbor overheard 

A.N. call Barber a total of four times to get directions to his 

house. During the fourth call, Barber’s house was visible and 

the neighbor observed the front door open and a man standing 

against the doorjamb. As he watched A.N. approach Barber’s 

house, he decided this situation had the potential to go very 

badly, so he decided to notify law enforcement about the situation and suggest they perform a welfare check.

Officer Aron Chrisman responded and was dispatched to 

Barber’s house in response to a call about a highly intoxicated 
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STATE v. BARBER

Cite as 28 Neb. App. 820

female. Barber answered the door and acknowledged that 

his girlfriend’s daughter was inside and that she was drunk. 

Chrisman found A.N. lying on the bed in the bedroom, awake 

and fully clothed, and determined she was intoxicated, due to 

her slurred speech. Chrisman was the school resource officer at A.N.’s school, so he was familiar with her as a high 

school student. Chrisman learned from A.N. that she had her 

mother’s permission to sleep at Barber’s house, so he told her 

to stay put and he left after 2 or 3 minutes. Chrisman did not 

follow up with either of A.N.’s parents nor did he investigate 

the party.

A.N. went to sleep and has no memory of the overnight 

hours. When A.N. woke up in the morning, she was fully 

clothed and all her clothes were in the proper places. By this 

time, Barber was in the kitchen “on the phone” with A.N.’s 

mother, cooking breakfast and doing laundry. A.N. noticed 

blood on the bedding, and when she asked Barber about it, he 

said, “‘Don’t you remember last night? Last night was crazy.’” 

Barber then told A.N. he had performed oral sex on her. A.N. 

did not believe Barber’s account until Barber showed her naked 

pictures of herself which he had stored on his cell phone. A.N. 

asked Barber to delete the pictures, and he complied. After 

they ate breakfast together, Barber drove A.N. back to her car 

that had been parked near the site of the party.

Barber’s version of the facts differs only in that he claims 

A.N. initiated oral sexual contact after several hours of sleep, 

so he reciprocated. Barber also testified that they then proceeded to have “sex in a missionary style.” Barber denied that 

A.N. ever told him to stop and stated that because she initiated 

the encounter, he believed she had the capacity to consent to 

the sexual activity.

At the end of the State’s evidence and again at the close 

of Barber’s case, Barber moved for a directed verdict on the 

theory that there was no evidence that A.N. lacked the ability 

to consent at the time of the act nor was there proof of penetration without consent. The court concluded whether or not 
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STATE v. BARBER

Cite as 28 Neb. App. 820

A.N. had the capacity to consent was a jury question, because 

there was ample evidence she was very intoxicated and sufficient evidence of penetration.

The jury returned a guilty verdict, and Barber immediately 

filed a motion for a new trial that was considered and denied 

at the sentencing hearing. Barber was sentenced to a term of 

incarceration of 10 to 12 years in the custody of the Nebraska 

Department of Correctional Services. This direct appeal followed, filed by different counsel than the counsel representing 

Barber at trial.

ASSIGNMENTS OF ERROR

Barber raises three distinct errors. First, the district court 

erred in denying his motion for new trial, because the only 

evidence of penetration was Barber’s admission, which is 

insufficient and uncorroborated. Second, the district court erred 

in instructing the jury as to “without consent” and failing to 

instruct the jury that the burden of proof never shifts to Barber. 

And third, Barber received ineffective assistance of counsel 

before trial and during trial.

STANDARD OF REVIEW

[1] The standard of review for the denial of a motion for 

new trial is whether the trial court abused its discretion in 

denying the motion. State v. Briggs, 303 Neb. 352, 929 N.W.2d 

65 (2019).

[2] Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal 

present questions of law, an appellate court has an obligation 

to reach an independent conclusion irrespective of the decision 

of the court below. State v. Dady, 304 Neb. 649, 936 N.W.2d 

486 (2019).

[3] Jury instructions are subject to the harmless error rule, 

and an erroneous jury instruction requires reversal only if the 

error adversely affects the substantial rights of the complaining 

party. Id.
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STATE v. BARBER

Cite as 28 Neb. App. 820

[4] Harmless error review looks to the basis on which 

the trier of fact actually rested its verdict; the inquiry is not 

whether in a trial that occurred without the error a guilty verdict surely would have been rendered, but, rather, whether the 

actual guilty verdict rendered in the questioned trial was surely 

unattributable to the error. Id.

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

counsel is a mixed question of law and fact. State v. Filholm,

287 Neb. 763, 848 N.W.2d 571 (2014). When reviewing a 

claim of ineffective assistance of counsel, an appellate court 

reviews the factual findings of the lower court for clear error. 

Id. With regard to the questions of counsel’s performance 

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

articulated in Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews 

such legal determinations independently of the lower court’s 

decision. State v. Filholm, supra.

ANALYSIS

Denial of Motion for New Trial

[6-8] Barber argues the district court erred in denying his 

motion for new trial, because the evidence was insufficient to 

support his conviction. Barber argues the State failed to prove 

the corpus delicti of first degree sexual assault. The corpus 

delicti of a crime is the body or substance of a crime—the fact 

that a crime has been committed. See State v. Torwirt, 9 Neb. 

App. 52, 607 N.W.2d 541 (2000). The corpus delicti may be 

proved by circumstantial evidence. Id. Extrajudicial admissions or a voluntary confession is insufficient to prove that a 

crime has been committed, but either or both are competent 

evidence of the fact and may, with corroborative evidence of 

facts and circumstances, establish the corpus delicti and guilty 

participation of the defendant. Hoffman v. State, 160 Neb. 375, 

70 N.W.2d 314 (1955). See, also, State v. Scott, 200 Neb. 265, 

263 N.W.2d 659 (1978).

[9,10] Other than his own admission to A.N. in his kitchen, 

Barber argues there was no evidence establishing that 
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STATE v. BARBER

Cite as 28 Neb. App. 820

penetration occurred. Consequently, Barber claims his extrajudicial statements cannot be sufficient to establish the corpus 

delicti and his guilty participation. The rule that the corpus 

delicti cannot be proved by the extrajudicial admission of the 

defendant is true as a general proposition, yet confessions or 

admissions may be considered in connection with the other 

evidence to establish the corpus delicti. It is not necessary to 

prove the corpus delicti by evidence entirely independent and 

exclusive of the confession or admissions. See Limmerick v. 

State, 120 Neb. 558, 234 N.W. 98 (1931). See, also, Egbert 

v. State, 113 Neb. 790, 205 N.W. 252 (1925) (while voluntary 

admission tending to prove crime is insufficient standing alone 

to prove corpus delicti, it is competent evidence, and may 

with slight corroborating circumstances be sufficient to warrant conviction).

[11,12] Barber’s argument that the corpus delicti was not 

proved is limited to his assertion that the evidence was insufficient to prove penetration. He claims that his extrajudicial 

admission was not corroborated and is therefore insufficient to 

establish the corpus delicti. However, Barber testified at trial 

that he penetrated A.N. This goes beyond an extrajudicial statement and constitutes a judicial admission. “[A] judicial admission, as a formal act done in the course of judicial proceedings, 

is a substitute for evidence and thereby waives and dispenses 

with the production of evidence by conceding for the purpose 

of litigation that the proposition of fact alleged by an opponent 

is true.” Anderson v. Cumpston, 258 Neb. 891, 897-98, 606 

N.W.2d 817, 823 (2000). Accord State v. Canady, 263 Neb. 

552, 641 N.W.2d 43 (2002). It waives all right to deny the fact 

admitted. Kipf v. Bitner, 150 Neb. 155, 33 N.W.2d 518 (1948). 

Therefore, Barber’s in-court testimony that he penetrated A.N. 

is conclusive as to that fact.

[13] Aside from the judicial admission, the circumstantial 

evidence further corroborated Barber’s extrajudicial statement 

that he penetrated A.N. Circumstantial evidence is evidence 

which, without going directly to prove the existence of a fact, 

gives rise to a logical inference that such fact exists. State v. 
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STATE v. BARBER

Cite as 28 Neb. App. 820

Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019). A.N. testified she saw naked pictures of herself on Barber’s cell phone, 

pictures including “up close” of her vagina, and she recalled 

there being blood on the sheets. This evidence, coupled with 

Barber’s admission to A.N., gives rise to the logical inference that penetration occurred. We reject Barber’s argument to 

the contrary.

Jury Instructions

Barber’s second assigned error raises two issues related to 

the jury instructions. The first is that the district court erred 

in instructing the jury in regard to “without consent.” Barber 

takes issue with two instructions in particular: The instruction 

on the elements of the crime, and an instruction defining “without consent.” The elements of the crime instruction explained 

in part as follows:

ELEMENTS

The elements of first degree sexual assault are:

1. That [Barber] subjected [A.N.] to sexual penetration; and

2. That [Barber] did so either (a) without [A.N.’s] 

consent, or (b) when he knew or should have known that 

[A.N.] was mentally or physically incapable of resisting 

or appr[a]ising the nature of [Barber’s] conduct; and

3. That [Barber] did so on or about the date charged in 

Dawes County, Nebraska.

EFFECT OF FINDINGS

If you decide the state proved each element of the 

crime beyond a reasonable doubt, then you must find 

[Barber] guilty of that crime. Otherwise, you must find 

[Barber] not guilty of that crime.

The elements portion of the instruction tracked the language 

of Neb. Rev. Stat. § 28-319(1) (Reissue 2016) and instructed 

the jury on two theories—that Barber subjected A.N. to sexual penetration without the consent of A.N., in violation of 

§ 28-319(1)(a), or alternatively, when Barber knew or should 

have known that A.N. was mentally or physically incapable of 
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STATE v. BARBER

Cite as 28 Neb. App. 820

resisting or appraising the nature of her conduct, in violation 

of § 28-319(1)(b).

The second instruction that Barber takes issue with defined 

“without consent” as follows:

Without consent means:

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

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

victim expressed a lack of consent through conduct, or 

(iv) the consent, if any was actually given, was the result 

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

the nature or purpose of the act on the part of the actor;

b) The victim need only resist, either verbally or physically, so as to make the victim’s refusal to consent genuine and real and so as to reasonably make known to the 

actor the victim’s refusal to consent; and

c) A victim need not resist verbally or physically where 

it would be useless or futile to do so.

A victim may be found mentally or physically incapable of resisting or appraising the nature of their conduct 

if the victim experiences a significant abnormality, such 

as severe intoxication, and [Barber] knew or should have 

known of the victim’s severe intoxication.

[14] The first part of this instruction defining “without 

consent” tracked the language of Neb. Rev. Stat. § 28-318(8) 

(Reissue 2016). The last paragraph of the instruction is a correct statement of the law regarding the incapacity to resist or 

appraise the nature of the conduct. See State v. Rossbach, 264 

Neb. 563, 650 N.W.2d 242 (2002) (under statutory provision 

governing commission of first degree sexual assault when 

alleged attacker knew or should have known alleged victim 

was mentally or physically incapable of resisting or appraising 

nature of his or her conduct, analysis in determining if such 

provision was violated requires existence of significant abnormality, such as severe intoxication or other substantial mental 

or physical impairment, on part of alleged victim, and knowledge of abnormality on part of alleged attacker).
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Barber argues the district court should not have instructed 

the jury as to “without consent,” because the State failed to 

present any evidence to support the theory that A.N. did not 

consent and because it created a conflict with the lack of 

capacity to consent theory, subjecting him to prejudice.

[15,16] Barber concedes that he did not object to any of 

the jury instructions at the time of trial. As such, we review 

for plain error. The failure to object to a jury instruction after 

it has been submitted to counsel for review precludes raising 

an objection on appeal absent plain error. State v. Hinrichsen, 

292 Neb. 611, 877 N.W.2d 211 (2016). Plain error may be 

found on appeal when an error unasserted or uncomplained 

of at trial, but plainly evident from the record, prejudicially 

affects a litigant’s substantial right and, if uncorrected, would 

result in damage to the integrity, reputation, and fairness of 

the judicial process. State v. Mann, 302 Neb. 804, 925 N.W.2d 

324 (2019).

[17] Barber contends that the State’s entire case was based 

on the theory that he committed first degree sexual assault 

by subjecting A.N. to sexual penetration when Barber knew 

or should have known that A.N. was mentally or physically 

incapable of resisting or appraising the nature of her conduct. 

A victim’s lack of consent is not an element of the crime of 

sexual assault when the victim is incapable of resisting or 

appraising the nature of his or her conduct. In re Interest of 

K.M., 299 Neb. 636, 910 N.W.2d 82 (2018). Barber argues that 

because the State did not present any evidence that he compelled A.N. to submit due to threat of force or coercion, any 

evidence that A.N. expressed a lack of consent through words 

or conduct, or any evidence that he used deception to obtain 

consent, the court erred in instructing the jury on the alternative sexual assault theory of “without consent.” We agree. 

Combining the definition of “without consent” with “incapable 

of resisting” in a single instruction, coupled with counsel’s use 

of the two phrases interchangeably as explained below, made 

the instructions ambiguous and capable of misleading the jury. 

Accordingly, we conclude that the district court committed 
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plain error by instructing the jury on the theory of “without consent.”

[18-21] However, our analysis does not end there. Alleged 

errors in a jury instruction are examined using a two-step 

process. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019). 

First, the court reviews the case based on the errors assigned 

and argued, or it may find plain error. Second, when an error is 

identified, the court considers whether the error was harmless 

or prejudicial. Id. Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of 

the complaining party. Id. Harmless error review looks to the 

basis on which the trier of fact actually rested its verdict; the 

inquiry is not whether in a trial that occurred without the error 

a guilty verdict surely would have been rendered, but, rather, 

whether the actual guilty verdict rendered in the questioned 

trial was surely unattributable to the error. Id. When examining 

for harmless error, the court may look at a variety of factors 

including the jury instructions as a whole, the evidence presented at trial, and the closing arguments. Id.

We find State v. Dady, supra, instructive in determining 

whether the jury instruction error was harmless. In that case, 

the defendant was convicted of first degree sexual assault and 

on appeal alleged, among other errors, that the trial court erred 

in giving a jury instruction that incorrectly stated the law. The 

Nebraska Supreme Court concluded that although the instruction at issue contained essentially correct definitions of applicable terms, it was ambiguous and capable of misleading the 

jury and thus, erroneous.

The Dady court further determined that the potentially misleading ambiguity of the instruction did not in fact mislead 

the jury. It concluded that the jury’s verdict was surely unattributable to the erroneous instruction, because the instructions, 

taken as a whole, combined with the evidence and arguments 

presented at trial, clarified the ambiguity and the jury was not 

misled by the ambiguous instruction.
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[22] In the present case, we look to the remarks made in 

the opening statements and closing arguments, as well as the 

manner in which the evidence was presented. During opening 

statements, the prosecutor seemed to equate lack of consent 

with the lack of capacity to consent due to intoxication. He 

stated, “[A.N.] was not capable of consenting. In fact, she 

didn’t consent. In fact, she doesn’t even know exactly what 

happened to her other than what [Barber], the defendant, told 

her that morning.” Barber’s position was that she did consent 

and that in fact, she initiated the encounter. Barber’s counsel 

stated, “And at the end of this trial — the issue is consent.” 

During closing arguments, the prosecutor told the jury, “You 

have had absolutely no evidence that that was consensual 

in any manner whatsoever. [A.N.] didn’t know it had taken 

place. She didn’t even know what happened and was having a hard time believing what had happened until he shows 

this photo.” The prosecutor further stated, “The evidence is 

overwhelming [Barber] knew or should have known [A.N.’s] 

state. And the evidence is overwhelming that he perpetrated 

a sexual assault on her.” Barber’s counsel continued to converge the two concepts during closing arguments. Barber’s 

counsel stated, “When the judge tells you the elements of 

the crime, it’s without her consent. And without her consent 

means she had to do something or be unable to do something, 

such as from her conduct. And that’s what you have to look at 

here.” (Emphasis supplied.) Both parties were using “without 

consent” synonymously with a lack of capacity to consent. 

We conclude, therefore, that the jury was not misled by any 

ambiguity created by the inclusion of “without consent” in the 

jury instructions, because it was clear the State’s theory was 

incapacity to consent, not that she did not consent. As stated 

above, Barber agrees that the State’s case was based on the 

theory of incapacity to consent. The court may consider the 

facts of the case when determining whether a jury instruction 

was confusing or misleading. State v. Dady, 304 Neb. 649, 936 

N.W.2d 486 (2019).
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We conclude that the jury could not have been misled by the 

erroneous inclusion of “without consent” in the instructions, 

because the instructions, when taken as a whole, combined 

with the evidence and arguments presented at trial, clarified 

any ambiguity such that the jury understood the parties’ use 

of the phrase “without consent” to include the incapacity to 

consent. Given the manner in which the case was presented, 

the jury’s verdict was surely unattributable to the erroneous 

inclusion of “without consent,” and thus, the erroneous jury 

instructions were harmless error.

[23] Barber next argues that he was prejudiced by the court’s 

failure to instruct the jury that “the burden of proof never shifts 

to [Barber],” because this may have caused the jury to believe 

Barber had a duty to prove A.N. did in fact consent. Brief for 

appellant at 23. The final instructions delivered by the court 

specifically instructed the jury that Barber was presumed to be 

innocent and must be acquitted unless the State proved his guilt 

beyond a reasonable doubt. Further, the elements instruction 

included an instruction that the jury must find that the State 

proved each and every element of the crime beyond a reasonable doubt before it could find Barber guilty of the crime. 

Admonitions given during the trial reminded the jurors that the 

charges against Barber are “simply an accusation and nothing 

more” and “[Barber] has plead [sic] not guilty. He is presumed 

innocent . . . unless and until you decide that the State has 

proved him guilty beyond a reasonable doubt.” Absent evidence to the contrary, it is presumed that a jury followed the 

instructions given in arriving at its verdict. State v. Henderson,

301 Neb. 633, 920 N.W.2d 246 (2018). Barber has failed to 

overcome this presumption.

Ineffective Assistance of 

Counsel Claims

[24-26] When a defendant’s trial counsel is different from 

his or her counsel on direct appeal, as is the case here, the 

defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant 
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or is apparent from the record. See State v. Sinkey, 303 Neb. 

345, 929 N.W.2d 35 (2019). Otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding.

Id. The fact that an ineffective assistance of counsel claim is 

raised on direct appeal does not necessarily mean that it can 

be resolved. The determining factor is whether the record is 

sufficient to adequately review the question. Id. In order to 

avoid a procedural bar to a future postconviction proceeding, 

a claim of ineffective assistance of counsel must be presented 

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 to be able to recognize whether the claim 

was brought before the appellate court. Id.

Barber raises several claims of ineffective assistance of trial 

counsel, both before and during trial. Specifically, the claims 

include his trial counsel’s failure to locate, interview, and 

depose 11 specifically identified material witnesses prior to 

trial; failure to obtain specifically identified material evidence 

prior to trial; ineffective assistance during voir dire; failure to 

call specific witnesses during trial; failure to impeach A.N. and 

other specifically identified witnesses during trial; failure to 

impeach three specifically identified witnesses during trial; and 

failure to object to jury instructions.

[27] In concluding Barber did not suffer any prejudice as a 

result of the court’s instruction error, we have disposed of this 

posttrial ineffective assistance claim. See State v. McDaniel, 

17 Neb. App. 725, 771 N.W.2d 173 (2009) (court found record 

adequate to address counsel’s failure to object to erroneous 

instruction on prejudice prong of test for ineffective assistance 

of counsel, and given resolution of instruction issue, it followed that defendant was not prejudiced by any shortcoming 

of trial counsel concerning instruction). But that is the only 

claim we are able to resolve at this stage of the proceedings. 

Although we believe all the claims are sufficiently stated to 

permit a district court to recognize whether the claim was 

raised in this court, the trial record simply does not permit our 
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review. As in most cases raising ineffective assistance of counsel claims on direct appeal, the trial record reviewed on appeal 

is “‘devoted to issues of guilt or innocence’” and does not usually address issues of counsel’s performance. State v. Filholm,

287 Neb. 763, 769, 848 N.W.2d 571, 578 (2014).

CONCLUSION

For the foregoing reasons, we affirm Barber’s conviction 

and sentence.

Affirmed.