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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. JENSEN

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

STEVEN D. JENSEN, APPELLANT.

Filed December 20, 2022. No. A-22-045.

Appeal from the District Court for Sarpy County: STEFANIE A. MARTINEZ, Judge. 

Affirmed.

Joseph Kuehl, of Lefler, Kuehl & Burns Law Office, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.

PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.

WELCH, Judge.

INTRODUCTION

Steven D. Jensen appeals from his conviction of first degree sexual assault. On appeal, he 

asserts that his trial counsel was ineffective in various respects. For the reasons stated herein, we 

affirm.

STATEMENT OF FACTS

Between the dates of June 1, 2003, and February 15, 2005, Jensen, who was over 19 years 

old, allegedly had sexual intercourse with the victim, who was under the age of 16. After the victim 

reported the assault in 2019, Sergeant Daniel German with the Bellevue Police Department Special 

Victim’s Unit followed up by interviewing the victim, Jensen, and Katie Gillespie-Jensen, who 

was the victim’s former friend and Jensen’s current wife. After interviewing Gillespie-Jensen and 

Jensen at their residence, Sergeant German determined there was sufficient evidence to arrest 
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Jensen but allowed Jensen to turn himself in. Jensen was charged in Sarpy County District Court 

with first degree sexual assault, a Class II felony. See Neb. Rev. Stat. § 28-319(1)(c) (Reissue 

2016). The information was later amended twice to change the date of the offense.

A jury trial was held in October 2021. During the trial, witnesses included the victim, 

Sergeant German, and Gillespie-Jensen.

The victim testified that she met Jensen through Gillespie-Jensen sometime between the 

end of her freshman year to the beginning of her sophomore year of high school. At that time, 

Gillespie-Jensen was dating James Ullman who the victim described as having grey hair and being 

older than her parents who were in their mid-to-late 30’s. The victim and Gillespie-Jensen did not 

dispute that Ullman gave them rides, provided them with money for shopping trips, had them 

model for him afterwards, provided them with alcohol, and had sexual involvement with both girls. 

The victim testified that Gillespie-Jensen introduced her to Jensen at Ullman’s residence so that 

the victim and Jensen could “get together” which the victim understood to mean something sexual. 

The victim testified that, at some point during that evening, Jensen penetrated her. At that time, 

the victim testified she was under the age of 16 and Jensen was over the age of 19. The victim 

testified that she did not report the incident until 2019 when she learned that Ullman was a school 

bus driver, which made her concerned for the safety of other children, and that she felt it was 

necessary to include in her report the encounter with Jensen to provide the police the “whole truth.”

The victim stated that she felt bad having to also report Jensen because she knew that Jensen and 

Gillespie-Jensen were now married and were attempting to have a child.

Gillespie-Jensen testified that she met the victim when they were in junior high school; that 

the victim was a year older than her; that she met Ullman around that same time frame; and that 

she met Jensen online when she was 14 years old, but that she did not meet Jensen in person until 

after she was 16 years old. During her testimony, defense counsel offered multiple photographs 

into evidence depicting a timeline of events where Gillespie-Jensen and the victim were together. 

Based upon this timeline of events, Gillespie-Jensen testified that she believed the victim was over 

the age of 16 at the time Jensen penetrated her. On cross-examination, Gillespie-Jensen admitted 

that she was untruthful during her initial interview with Sergeant German concerning when she 

met Jensen, whether Jensen knew Ullman, and whether Jensen knew the victim.

The State called the victim’s mother as a rebuttal witness. During this line of testimony, 

the State asked questions about a photograph of the victim in her high school dance uniform which 

Gillespie-Jensen used in her timeline to suggest the event depicted occurred during the victim’s 

senior year. The victim’s mother testified that the victim only participated in dance during her 

freshman year and the photo would have been taken during the victim’s freshman year. This 

testimony was consistent with the victim’s testimony on the same subject.

The jury convicted Jensen of the charged offense and thereafter, the court sentenced Jensen 

to 6 to 12 years’ imprisonment with credit for 5 days served. Jensen has timely appealed.

ASSIGNMENTS OF ERROR

Jensen’s assignments of error, renumbered and restated, are that his trial counsel was 

ineffective for: (1) allowing the victim to narrate her story without objection, (2) inadequately 

impeaching the victim with prior inconsistent statements, (3) failing to frame questions about drugs 
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and alcohol in a way to avoid objections and then giving up on that issue, (4) failing to call as a 

witness the author of certain calendars so that they could be received as exhibits at the time of trial,

(5) failing to move for dismissal at the end of the trial, and (6) that the culmination of the errors 

made by trial counsel prejudiced Jensen and did not allow him to receive a fair trial.

STANDARD OF REVIEW

In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court 

decides only whether the undisputed facts contained within the record are sufficient to conclusively 

determine whether counsel did or did not provide effective assistance and whether the defendant 

was or was not prejudiced by counsel’s alleged deficient performance. State v. Smith, 302 Neb. 

154, 922 N.W.2d 444 (2019).

Whether a claim of ineffective assistance of trial counsel can be determined on direct 

appeal presents a question of law, which turns upon the sufficiency of the record to address the 

claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a 

statute or constitutional requirement. State v. Collins, 307 Neb. 581, 950 N.W.2d 89 (2020). An 

appellate court determines as a matter of law whether the record conclusively shows that (1) a 

defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a 

defense counsel’s alleged deficient performance. Id.

ANALYSIS

On appeal, Jensen contends that his trial counsel was ineffective for: (1) allowing the victim 

to narrate her story without objection, (2) inadequately impeaching the victim with prior 

inconsistent statements, (3) failing to frame questions about drugs and alcohol in a way to avoid 

objections and then giving up on that issue, (4) failing to call as a witness the author of certain 

calendars so that they could be received as exhibits at the time of trial, (5) failing to move for 

dismissal at the end of the trial, and (6) that the culmination of the errors made by trial counsel 

prejudiced Jensen and did not allow him to receive a fair trial.

In State v. Anders, 311 Neb. 958, 977-79, 977 N.W.2d 234, 252 (2022), the Nebraska 

Supreme Court stated:

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. 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.

Generally, to prevail on a claim of ineffective assistance of counsel under 

Strickland v. Washington, the defendant must show that his or her counsel’s performance 

was deficient and that this deficient performance actually prejudiced the defendant’s 

defense. 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. To show prejudice, the defendant must demonstrate a reasonable probability 
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that but for counsel’s deficient performance, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient to undermine confidence in 

the outcome. In determining whether trial counsel’s performance was deficient, there is a 

strong presumption that counsel acted reasonably.

In proceedings where the Nebraska Evidence Rules apply, the admissibility of 

evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility. 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.

Whether cumulative error deprived a criminal defendant of his or her Sixth 

Amendment right to a trial by an impartial jury presents a question of law to be reviewed 

de novo.

Further, as the Nebraska Supreme Court provided in State v. Drake, 311 Neb. 219, 237, 

971 N.W.2d 759, 774 (2022):

Once raised, an appellate court will determine whether the record on appeal is 

sufficient to review the merits of the ineffective performance claims. The record is 

sufficient if it establishes either that trial counsel’s performance was not deficient, that the 

appellant will not be able to establish prejudice as a matter of law, or that trial counsel’s 

actions could not be justified as a part of any plausible trial strategy. Conversely, an 

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

an evidentiary hearing.

FAILURE TO OBJECT TO NARRATIVE TESTIMONY

Jensen first claims that his trial counsel was ineffective for not objecting to the victim’s 

irrelevant “narrative about her mother, her father, her suicide attempt, her ex-boyfriend, her 

therapist, etc.”

As noted by the Nebraska Supreme Court in State v. Anders, 311 Neb. 958, 983, 977 

N.W.2d 234, 255 (2022):

The decision whether or not to object has long been held to be part of trial strategy. 

When reviewing claims of alleged ineffective assistance of counsel, trial counsel is 

afforded due deference to formulate trial strategy and tactics. There is a strong presumption 

that counsel acted reasonably, and an appellate court will not second-guess reasonable 

strategic decisions.

Here, during direct examination of the victim, the State asked what events led up to her 

decision to make a police report. The victim responded, stating:

I went through several other abusive relationships after that. And then I was going 

through a divorce, and I was having a really hard time with the divorce and with my oldest 

daughter, who was rebelling terribly.
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I had asked my dad to watch—or not to watch, but to take my oldest daughter for 

a—for a little while. And I remember him calling me a couple of days later. We were 

checking in with each other about her. And he asked me when I wanted her back. And I 

said, honestly, Dad, I don’t know if I do.

And he just went off the deep end and told me that it was my fault, everything she 

was going through was my fault and that I had drug her through all this stuff. And I 

remember saying to my dad, get out. And he just became, like, irate. He punched a hole in 

my closet door. He ripped off the baby gate.

And something in me that day just, like, snapped. And I tried to kill myself after he 

left. So, I remember my mom coming to the emergency room and them agreeing to let her 

take me home. And I remember her telling me, like, if you’re not going to be hospitalized 

after this, like, you must get in therapy. You must get your shit together and be there for 

those girls.

So, I started going to therapy every week. I took FML from work and just focused 

on my mental health. And the therapist that I see I had been seeing through, like, my divorce 

and stuff. So, he—like, I had told him about what happened with Jim and with Steve, but 

it was never, like, something that was on the forefront or, like, the main issue for us to talk 

about.

So, kind of when things really started calming down with, like, the rest of my life, 

we kind of started to dive into, like, you know my childhood and, I mean, my dad and, you 

know, all this stuff that had happened to me.

And so, I became curious. It had been years since I had heard from [GillespieJensen], so I got curious. I wonder what they’re doing now. And I—so I got on Facebook, 

and I looked up [Ullman].

Jensen argues that his counsel was ineffective in failing to make a relevancy objection which he 

claims would have been sustained.

Evidence which is not relevant is inadmissible. Neb. Rev. Stat. § 27-402 (Reissue 2016). 

“Evidence is relevant if it has ‘any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it would be 

without the evidence.’ Relevancy requires only that the probative value be something more than 

nothing.” State v. Munoz, 303 Neb. 69, 82, 927 N.W.2d 25, 36 (2019).

The record does not indicate why counsel did not make an objection to this narrative 

response. However, the record is sufficient to review the merits of this claim. Jensen’s argument 

in support of this assignment does not focus on trial counsel’s failure to object to a narrative 

response by the victim. Instead, Jensen argues the narrative response was not relevant to any issue 

in the proceeding. To the contrary, the victim’s testimony related to why she eventually decided 

to report the incident in response to Jensen’s challenge to the long delay in making the report. 

Because the response is probative of a fact that was of consequence to the proceeding, a relevancy 

objection would have been overruled. Counsel is not ineffective for failing to object to a meritless 

argument. See State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017) (as a matter of law, 
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counsel cannot be ineffective for failing to raise meritless argument). Accordingly, Jensen’s 

assignment of error fails.

FAILURE TO PROPERLY IMPEACH VICTIM ON PRIOR INCONSISTENT STATEMENTS

Jensen next contends that his trial counsel was ineffective for failing to properly impeach 

the victim. First, Jensen argues that trial counsel was ineffective for giving up on impeaching the 

victim as it related to her prior inconsistent statement about when she met Jensen. Second, Jensen 

argues that trial counsel was ineffective for giving up on impeaching the victim about her prior 

inconsistent statement as it related to whether the victim maintained a relationship with GillespieJensen throughout high school. Jensen argues that counsel’s failure to properly impeach the victim 

governing this subject matter compromised counsel’s ability to show the jury that the victim was 

not a reliable historian as it relates to the age of the victim at the time of Jensen’s alleged sexual 

assault.

In State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021), the defendant assigned that 

counsel was ineffective in cross-examining particular witnesses as it related to their prior 

inconsistent statements to law enforcement. Because the record was devoid as to why trial counsel 

chose not to ask particular questions of the witnesses, the court found the record was insufficient 

to address the claim on direct appeal.

Likewise, here the record shows that trial counsel attempted to elicit testimony from the 

victim relating to alleged prior inconsistent statements on these subjects but did so by attempting 

to refresh the victim’s memory and using both her police interview and her deposition testimony. 

The State objected on the basis that trial counsel’s questioning constituted an improper attempt to 

refresh the victim’s memory which was sustained by the court. Defense counsel did not further 

attempt to impeach the victim using the alleged prior inconsistent statements. Because the record 

is devoid as to why trial counsel failed to further pursue this line of questioning, we find the record 

is insufficient to address this claim on direct appeal.

FAILURE TO FRAME QUESTIONS TO AVOID OBJECTIONS

Jensen next assigns that his counsel was ineffective for failing to properly frame questions 

during the direct examination of Gillespie-Jensen relating to whether drugs and alcohol were 

present at parties that the victim attended with Gillespie-Jensen. He argues that counsel received 

objections from the State related to the questions which the court sustained because counsel failed 

to cure the defects posed by the State’s objections.

From our review of the record, counsel attempted to elicit testimony from Gillespie-Jensen 

relating to whether she attended parties with the victim where they consumed drugs and alcohol. 

In a sidebar, following relevance and foundation objections by the State, counsel indicated that his 

intent was to show how the drug and alcohol use would have affected the victim’s ability to 

accurately recall dates and times. The court sustained the objection for lack of foundation as 

counsel offered no timeframe associated with the questions. Thereafter, counsel attempted to ask 

follow-up questions governing the general subject matter of the victim and Gillespie-Jensen 

attending parties between their eighth grade and junior years in high school where illegal 
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substances were available and consumed, all of which were met with objections and rejected by 

the court. Jensen argues that:

During the sidebar, the Court was clear that time frame was the issue. An easily curable 

defect, but, upon returning to questioning, trial counsel failed to adequately cure that defect. 

If the jury had been able to hear this line of questioning, it would be one more detail that 

[Gillespie-Jensen] was able to remember that [the victim] was not able to recall or testify 

about. Another plus in the credibility column for [Gillespie-Jensen] and a minus for [the 

victim.]

Brief for appellant at 16. Jensen then argues that, because this case comes down to a credibility 

contest between the victim and Gillespie-Jensen, trial counsel’s omission was prejudicial to his 

defense. We find the record is sufficient to address this claim.

Contrary to Jensen’s argument, the victim was not asked whether she and Gillespie-Jensen 

attended parties where they consumed drugs and alcohol. The victim’s sole response to the subject 

matter was an acknowledgement that Ullman provided the girls with alcohol. As such, the record 

affirmatively demonstrates that Jensen was not prejudiced by counsel’s failure to elicit testimony 

on the subject as it would not have contradicted the victim’s testimony, nor would it have aided in 

his attack on the victim’s credibility in the manner Jensen contends. This assignment of error fails.

FAILURE TO CALL AUTHOR OF CALENDARS

Jensen next contends that his counsel was ineffective for failing to call the author of certain 

calendar entries made between 2004 and 2006 to cure certain foundation and hearsay objections 

made when trial counsel attempted to admit them into evidence.

When the claim of ineffective assistance on direct appeal involves uncalled witnesses, 

vague assertions that counsel was deficient for failing to call “witnesses” are little more than 

placeholders and do not sufficiently preserve the claim. State v. Blake, 310 Neb. 769, 969 N.W.2d 

399 (2022). However, the appellate court does not need specific factual allegations as to what the 

person or persons would have said, which will not be found in the appellate record. Id. It is 

sufficient that appellate counsel give on direct appeal the names or descriptions of any uncalled 

witnesses forming the basis of a claim of ineffective assistance of trial counsel. Id. Such specificity 

is necessary so that the postconviction court may later identify whether a particular claim of failing 

to investigate a witness is the same one that was raised on direct appeal. Id.

Here, Gillespie-Jensen testified that she participated in a church youth group and obtained 

calendars from them because the calendars provided her with a timeframe as to when she and the 

victim met Jensen. She correlated that she and the victim met Jensen one to two months prior to 

going to the Bellevue Berry Farm with her church youth group in the fall of 2005. She testified 

that she requested the calendars from the church and noticed that the youth group attended the 

Bellevue Berry Farm only one time between 2004 and 2006. She testified that, because the 

encounter with Jensen occurred 2 months prior to the church youth group trip in the fall of 2005, 

she knows the encounter with Jensen occurred after the victim’s 16th birthday. The evidence 

previously established the victim’s 16th birthday was on February 16, 2005. Counsel attempted to 
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offer all three calendars into evidence, but the court sustained the State’s hearsay and foundation 

objections.

Jensen asserts that, had counsel called the author of the calendars, the testimony would 

have cured the hearsay and foundation objections and the calendars would have been admitted into 

evidence. Jensen acknowledges that although the 2005 calendar was eventually offered by the 

State and received into evidence during Gillespie-Jensen’s cross-examination, the 2004 and 2006 

calendars were not and were unavailable to corroborate Gillespie-Jensen’s testimony that the trip 

to the Bellevue Berry Farm was limited to 2005.

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

if it establishes either that trial counsel’s performance was not deficient, that the appellant will not 

be able to establish prejudice, or that trial counsel’s actions could not be justified as a part of any 

plausible trial strategy. State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021). In Lowman, the 

appellant made a similar argument that his trial counsel was ineffective for failing to call two 

witnesses. The Nebraska Supreme Court found that the record was sufficient to resolve the claim 

and that counsel did not perform deficiently as the witnesses’ testimony would have provided little 

relevance to the charged crimes. We reach a similar conclusion here.

Gillespie-Jensen testified that to the best of her memory, the encounter with Jensen 

occurred in the fall of 2005, 2 months prior to her trip with a church group to the Bellevue Berry 

Farm. The 2005 calendar was eventually admitted into evidence demonstrating the trip took place 

as it related to Gillespie-Jensen’s version of events. Gillespie-Jensen testified that she reviewed 

the 2004 and 2006 calendars and they did not depict that a similar trip occurred. As such, there 

was no evidence to suggest that the trip occurred in any other year and the issue before the jury 

was whether the trip itself was a proper correlation by Gillespie-Jensen with the encounter with 

Jensen. Prejudice is defined as a reasonable probability that but for counsel’s deficient 

performance, the result of the proceeding would have been different. State v. Anders, 311 Neb. 

958, 977 N.W.2d 234 (2022). A reasonable probability is a probability sufficient to undermine 

confidence in the outcome. Id. Calling another witness to verify that the trip to the Bellevue Berry 

Farm did not occur in 2004 or 2006 would have been cumulative to Gillespie-Jensen’s testimony 

on the subject and the validity of the date of the trip was not disputed at trial. The disputed matter 

was Gillespie-Jensen’s correlation of the timing of the meeting with Jensen to the timing of the 

church group trip. Under these circumstances, we hold that trial counsel’s failure to call a witness 

from the church to lay further foundation for the 2004 and 2006 church calendars was not 

prejudicial to Jensen’s defense. This assignment fails.

FAILURE TO FILE MOTION TO DISMISS

Jensen argues that his counsel was ineffective for failing to file a motion to dismiss.

In State v. Dixon, 306 Neb. 853, 867-68, 947 N.W.2d 563, 574-75 (2020), the Nebraska 

Supreme Court stated:

A motion to dismiss at the close of all the evidence has the same legal effect as a 

motion for a directed verdict. And a motion for directed verdict is simply another name for 

a motion for judgment of acquittal. All three motions assert that the defendant should be 

acquitted of the charge because there is no legally sufficient evidentiary basis on which a 
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reasonable jury could return a guilty verdict. Thus, however styled, this type of motion 

made at the close of all the evidence challenges the sufficiency of the State’s evidence to 

sustain the conviction.

When reviewing a criminal conviction for sufficiency of the evidence to sustain the 

conviction, the relevant question for an appellate court is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. An appellate court 

does not resolve conflicts in the evidence, pass on credibility of witnesses, or reweigh the 

evidence; such matters are for the finder of fact.

Here, Jensen does not argue the grounds upon which counsel should have pursued the 

motion to dismiss. Rather he argues that trial counsel should always file a motion to dismiss and 

failing to do so is deficient performance. He generally asserts that the evidence did not warrant a 

jury deliberation, that he does not understand how the jury returned a guilty verdict, and that the

verdict means that the jury believed the testimony of the victim rather than the testimony of his 

witness.

After reviewing this record in the light most favorable to the prosecution, we find a rational 

trier of fact could have found the essential elements of the crime beyond a reasonable doubt, and 

in this case, they did so find. As such, we find no deficient performance associated with counsel’s 

failure to file a motion to dismiss because such motion was meritless. Counsel is not ineffective 

for failing to make a meritless argument. See State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 

(2017) (as a matter of law, counsel cannot be ineffective for failing to raise meritless argument). 

This assignment of error fails.

CULMINATION OF ERRORS

Jensen’s final claim of ineffective assistance of trial counsel is that the culmination of trial 

counsel’s errors necessitated ordering a new trial or dismissal of the charges against him. He asserts 

that trial counsel’s errors are the reason that the jury believed the victim’s testimony over the 

testimony of defense witnesses.

In State v. Anders, 311 Neb. 958, 986, 977 N.W.2d 234, 256 (2022), the Nebraska Supreme 

Court stated:

We have recognized the doctrine of cumulative error in the context of a criminal jury trial. 

Although one or more trial errors might not, standing alone, constitute prejudicial error, 

their cumulative effect may be to deprive the defendant of his or her constitutional right to 

a public trial by an impartial jury.

In applying that doctrine to the record before the court, the court found that the cumulative error 

doctrine did not support the appellant’s argument where the majority of his ineffective assistance 

of counsel claims were without merit or not sufficiently alleged and “[t]he remaining assignments 

of error, for which the record is insufficient to address in this direct appeal, cannot form the basis 

for a claim of cumulative error.” Id. at 986, 977 N.W.2d at 257.
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Here, like in State v. Anders, supra, the majority of Jensen’s claims of ineffective assistance 

of counsel were either without merit or the remainder of the assignments of error, for which the 

record is insufficient to address in this direct appeal, cannot form the basis of cumulative error. 

This assignment fails.

CONCLUSION

For the reasons stated herein, we affirm Jensen’s conviction and sentence and find that only 

one of his allegations of ineffective assistance of trial counsel was preserved.

AFFIRMED.