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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. GOLYAR

Cite as 301 Neb. 488

State of Nebraska, appellee, v. 

Shanna E. Golyar, appellant.

___ N.W.2d ___

Filed November 9, 2018. No. S-17-955.

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

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. 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.

2. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. 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. 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.

3. Homicide: Intent. A person commits first degree murder if he or 

she kills another person purposely and with deliberate and premeditated malice.

4. Criminal Law: Homicide: Proof: Words and Phrases. In a homicide 

case, corpus delicti is the body or substance of the crime—the fact that 

a crime has been committed. It is not established until it is proved that 

a human being is dead and that the death occurred as a result of the 

criminal agency of another.

5. Homicide: Circumstantial Evidence: Proof. The body of a missing 

person is not required to prove the corpus delicti for homicide. Instead, 

Nebraska Supreme Court Online Library

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

11/23/2018 12:11 AM CST
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courts have generally held that circumstantial evidence associated with 

the victim’s disappearance can be sufficient to establish the death.

6. Homicide: Intent: Circumstantial Evidence: Proof. Purposeful, deliberate, premeditated murder may be proved circumstantially.

7. Homicide: Intent: Words and Phrases. In the homicide context, deliberate means not suddenly, not rashly, and requires that the defendant considered the probable consequences of his or her act before doing the act.

8. ____: ____: ____. The term “premeditated” means to have formed a 

design to commit an act before it was done.

9. Homicide: Intent. One kills with premeditated malice if, before the act 

causing death occurs, one has formed the intent or determined to kill the 

victim without legal justification.

10. Homicide: Intent: Time. No particular length of time for premeditation 

is required, provided the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death.

11. ____: ____: ____. The design or purpose to kill may be formed upon 

premeditation and deliberation at any moment before the homicide is 

committed.

12. Criminal Law: Evidence: Intent. The intent with which an act is committed is a mental process and may be inferred from the words and acts 

of the defendant and from the circumstances surrounding the incident.

13. Arson. A person commits arson in the second degree if he or she intentionally damages a building or property contained within a building by 

starting a fire or causing an explosion.

14. Arson: Circumstantial Evidence: Proof. Circumstantial evidence is 

sufficient to support a conviction for arson if such evidence and the reasonable inferences that may be drawn therefrom establish guilt beyond 

a reasonable doubt.

15. Effectiveness of Counsel: Postconviction: 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.

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

Error. 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 to recognize whether 

the claim was brought before the appellate court.

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

an ineffective assistance of counsel claim is raised on direct appeal does 
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not necessarily mean that it can be resolved. The determining factor is 

whether the record is sufficient to adequately review the question.

18. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is 

a question of law.

19. ____: ____. 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.

20. Effectiveness of Counsel: Jury Trials: Waiver. The decision to waive 

a jury trial is ultimately and solely the defendant’s, and, therefore, the 

defendant must bear the responsibility for that decision.

21. ____: ____: ____. Counsel’s advice to waive a jury trial can be the 

source of a valid claim of ineffective assistance only when (1) counsel 

interferes with the client’s freedom to decide to waive a jury trial or (2) 

the client can point to specific advice of counsel so unreasonable as to 

vitiate the knowing and intelligent waiver of the right.

22. Trial: Joinder. Prejudice from joinder cannot be shown if evidence of 

one charge would have been admissible in a separate trial of another 

charge.

23. Trial: Constitutional Law: Testimony. A defendant has a fundamental 

constitutional right to testify.

24. Trial: Attorney and Client: Testimony: Waiver. The right to testify 

is personal to the defendant and cannot be waived by defense counsel’s 

acting alone.

25. Trial: Attorney and Client: Testimony. Defense counsel bears the primary responsibility for advising a defendant of his or her right to testify 

or not to testify, of the strategic implications of each choice, and that the 

choice is ultimately for the defendant to make.

26. Trial: Attorney and Client: Effectiveness of Counsel: Testimony: 

Waiver. Defense counsel’s advice to waive the right to testify can present a valid claim of ineffective assistance of counsel in two instances: 

(1) if the defendant shows that counsel interfered with his or her freedom to decide to testify or (2) if counsel’s tactical advice to waive the 

right was unreasonable.

Appeal from the District Court for Douglas County: Timothy

P. Burns, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, Lori A. 

Hoetger, and Scott C. Sladek for appellant.
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STATE v. GOLYAR

Cite as 301 Neb. 488

Douglas J. Peterson, Attorney General, Sarah E. Marfisi, and 

Erin E. Tangeman for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Moore, Chief Judge.

Stacy, J.

Cari Farver disappeared on November 13, 2012, and her 

body has never been found. About 4 years after Farver’s disappearance, Shanna E. Golyar was charged with Farver’s murder and with arson. At trial, the State introduced uncontested 

evidence that Golyar considered Farver a romantic rival and 

that Golyar posed as Farver (and others) for several years in 

emails, texts, and on social media. While posing as someone 

else, Golyar confessed in several emails to murdering Farver.

Golyar was found guilty of first degree murder and second 

degree arson after a bench trial. She was sentenced to life 

imprisonment on the murder conviction and to a consecutive 

sentence of 18 to 20 years’ imprisonment on the arson conviction. In this direct appeal, Golyar contends the evidence was 

insufficient to support the convictions and claims her trial 

counsel was ineffective in various ways. We affirm.

I. FACTS

1. Golyar Meets David Kroupa

In late spring or early summer 2012, Golyar started dating David Kroupa after meeting him through an online dating site. Kroupa described the relationship as “[c]asual” and 

informed Golyar he was also dating other women. From 

almost the beginning, however, Golyar wanted a commitment 

from Kroupa. The State’s general theory was that Golyar 

was obsessed with Kroupa and did not want him dating 

other women.

2. Kroupa Meets Farver

Near the end of October 2012, Kroupa met the victim in this 

case, Farver. Kroupa’s first date with Farver was on October 29 

at a restaurant in Omaha, Nebraska. During the date, Kroupa’s 
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cell phone began “blowing up” with calls and text messages 

from Golyar. He initially ignored the messages, but when they 

continued, he contacted Golyar and told her he was on a date 

and could not respond. When they left the restaurant, Kroupa 

and Farver went to Kroupa’s nearby apartment.

Almost immediately after they arrived, Golyar started ringing the bell at the security door of Kroupa’s apartment building. Kroupa left Farver in his apartment and went to the security door to speak with Golyar. Golyar was crying and upset 

and insisted Kroupa let her in so she could retrieve some of her 

belongings from his apartment. Kroupa left Golyar at the security door and went back to his apartment to explain the situation to Farver. Farver decided to leave, and as she did so, she 

passed by Golyar, who was still standing by the security door. 

Farver got into her black Ford Explorer, which was parked 

near the security door, and drove away.

After Farver left, Kroupa let Golyar into his apartment to 

retrieve her belongings. She was still upset and did not stay 

long before he asked her to leave. Not long after Golyar left, 

Kroupa and Farver spoke on the telephone and Kroupa then 

traveled to Farver’s home in Macedonia, Iowa, where he spent 

the night.

Kroupa and Farver continued to see a lot of each other over 

the next several weeks. Kroupa also continued to see Golyar 

during this time period. On November 9 or 10, 2012, Farver’s 

Explorer was vandalized with spray paint while parked in 

Macedonia. Investigators subsequently learned that Golyar, 

via a Facebook account she had created under a false persona, 

claimed to be in Macedonia during that time period. That imposter Facebook account had also attempted to “friend” Farver.

Farver worked in Omaha at a business not far from Kroupa’s 

apartment. Starting Monday, November 12, 2012, she was 

beginning a weeklong project at work that would require her 

to work late hours. Farver arranged for her teenage son to stay 

with her mother and stepfather during that week, and Kroupa 

agreed Farver could spend the week with him at his apartment. 

Farver went to work as planned on Monday, November 12, 
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and left work between 8 and 9 p.m. Her coworkers expected 

her at work the next morning. Farver spent the night with 

Kroupa at his apartment.

Kroupa left for work on November 13, 2012, at approximately 6:20 a.m. At that time, Farver was awake and using her 

laptop computer. No one has seen Farver since.

3. Farver’s Cell Phone, Debit Card, 

and Facebook Account

Records from Farver’s employer showed she called in on 

the work project at 6:15 a.m. on November 13, 2012. Other 

records showed Farver logged into her Facebook account from 

Kroupa’s apartment at 6:39 a.m. and logged out at 6:42 a.m.

At 9:54 a.m., Farver’s Facebook account “unfriended” 

Kroupa. At 10 a.m., Kroupa received a text from Farver’s cell 

phone asking him if he wanted to live together. This surprised 

him, as he thought Farver agreed they were only involved in a 

casual relationship, and he responded, “No.” Twenty seconds 

later, he received an angry text from Farver’s cell phone breaking off the relationship.

Also on November 13, 2012, Farver’s cell phone texted 

Farver’s mother. The text said Farver had found a new job, 

which surprised her mother. Farver’s mother texted back over 

the course of the next several days and asked questions, 

including when Farver was coming to pick up her son for an 

upcoming family wedding, but received no response. This was 

unusual because Farver and her mother typically had daily 

contact. Farver’s mother reported her daughter missing on 

Friday, November 16.

On November 15, 2012, Farver’s employer received a 

text from her cell phone, stating that she was resigning and 

was sending “Shanna Golyar” to replace her. Later that day, 

Golyar filled out an online application with the employer. On 

November 16, Farver’s debit card was used to make purchases 

of $167.78 and $226.56 at two separate discount stores in 

Omaha. An item purchased at one of the stores was a shower 

curtain with a distinctive black-and-white floral pattern.
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On November 17, 2012, Farver’s mother received another 

text from Farver’s cell phone. It included a photograph of a 

check for $5,000 made out to Farver and signed by Golyar, 

and asked Farver’s mother to let Golyar into Farver’s home 

to retrieve a bedroom set Golyar had allegedly purchased via 

the check. Farver’s mother was suspicious about the text and 

contacted police. Police had Farver’s service provider “ping” 

her cell phone to attempt to locate it, and the ping showed 

that in the early hours of November 18, the cell phone was 

at an Omaha location not far from Golyar’s residence. Police 

searched for Farver’s cell phone, but it was never found.

Farver’s Facebook account continued to be active after 

November 13, 2012, making posts and sending messages. Trial 

evidence demonstrated, however, that the account making 

the posts and sending the messages was actually an imposter 

account, created using photographs and information available 

on Farver’s actual Facebook account. The imposter account 

making those posts was linked via digital evidence to Golyar. 

This imposter account attempted to contact both Farver’s 

mother and Farver’s teenage son. Photographs from Farver’s 

original Facebook account were also used by Golyar to make 

online dating profiles in Farver’s name.

4. Harassment of Golyar

and Kroupa

Beginning in November 2012 and continuing until approximately December 2015, both Golyar and Kroupa began receiving frequent harassing texts and emails, purportedly from 

Farver. The texts came from as many as 30 different telephone 

numbers. The emails came from as many as 30 different email 

accounts. Kroupa alone received 50 to 60 such emails per day, 

in addition to frequent texts and missed telephone calls. The 

texts and emails frequently referred to Golyar as a “whore.”

Golyar reported vandalism to her property, allegedly by 

Farver, on November 23, 2012, and February 12 and April 

1, 2013. Golyar also reported someone had broken into 

her garage prior to November 23, 2012, and stolen checks 
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from her. Kroupa reported vandalism to his property in July, 

October, and December 2013. Many of these acts of vandalism involved messages referring to Golyar as a “whore.” Each 

time an act of vandalism occurred, Kroupa, Golyar, or both 

would receive a text or email from “Farver” taking responsibility for the act. The acts of vandalism tended to occur at 

times when Kroupa was becoming less interested in Golyar, 

and the two were drawn back together by their mutual fear or 

dislike of Farver.

In January 2013, with Kroupa’s consent, the police downloaded information from his cell phone to obtain data related 

to the texts and emails purportedly sent by Farver. At the same 

time, with Golyar’s consent, police also downloaded similar 

information from her cell phone. The downloads were “logical” downloads, which did not include data previously deleted 

from the devices.

5. Todd Butterbaugh

Todd Butterbaugh met Golyar in September 2010 through 

an online dating site, and they dated until September 2015. 

Butterbaugh understood the relationship was exclusive. During 

the course of that relationship, Butterbaugh helped Golyar 

with her bills, helped her buy a car, let her move into his residence with her two children, and cared for her children.

In January 2013, Butterbaugh began receiving text and 

email messages, purportedly from Farver. In those messages, 

“Farver” explained she was one of Golyar’s friends and 

Golyar had given her Butterbaugh’s contact information in 

case “Farver” ever needed an emergency contact for Golyar. 

When Butterbaugh asked Golyar about the messages, she 

confirmed this and said Farver was her friend. In general, the 

texts and emails between “Farver” and Butterbaugh discussed 

Butterbaugh’s relationship with Golyar. Butterbaugh did not 

learn of Kroupa until Golyar’s cell phone was downloaded 

by the police. At that time, Golyar told Butterbaugh she had 

dated Kroupa before she met Butterbaugh and that they had 

remained friends.
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Golyar and her two children moved in with Butterbaugh in 

July 2013 and stayed until December 2015 or January 2016. 

During the time she dated and lived with Butterbaugh, Golyar 

did not tell him she was being harassed by Farver or anyone 

else. While staying with Butterbaugh, Golyar had access to 

his Wi-Fi network and several electronic devices, including 

a laptop and an iPod. Golyar and Butterbaugh broke up in 

October 2015.

6. August 17, 2013, Fire

Golyar and Kroupa broke off their relationship in early 

August 2013. Shortly thereafter, on Saturday, August 17, at 

8:14 a.m., a fire was reported at a residence Golyar rented in 

Omaha. Golyar told investigators she and her children had left 

the residence at 3 p.m. the day before, and she had returned at 

approximately 7:30 a.m. the following day and discovered the 

fire. She told investigators she was in the process of moving 

from the residence, but they later learned she had been evicted. 

Firefighters found smoke in the home, but the fire had cooled 

and was no longer hot. Golyar’s four pets died in the fire.

Investigators discovered at least six different points of origin 

of the fire and found accelerants. They quickly determined the 

fire had been set intentionally.

Golyar and Kroupa both received emails, purportedly from 

Farver, claiming responsibility for the fire. The email to Golyar 

was sent at 12:56 a.m. on August 17, 2013, and said “Farver” 

hoped Golyar and her children burned to death. The email to 

Kroupa was sent at 11:57 p.m. on August 16 and said, “I am 

not lying I set that nasty whores house on fire I hope the whore 

and her kids die in it.” Golyar and Kroupa got back together 

after the fire.

7. Amy Flora and December

5, 2015, Shooting

Before Kroupa met Golyar and Farver, he had a long-term 

relationship with Amy Flora and they had two children together. 

Flora and Kroupa remained amicable after their breakup. Flora 
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and the children lived in Omaha, and Golyar met Flora briefly 

when she accompanied Kroupa to pick up his children for parenting time. In 2013, Flora began receiving harassing Facebook 

and text messages purportedly from Farver. Some of the messages indicated Flora was being watched.

Golyar and Kroupa broke up again in mid-November 2015, 

because Kroupa decided to have a “more serious” relationship 

with another woman. Shortly thereafter, on Friday, December 

4, Golyar told police that Flora had been sending her harassing 

messages via Facebook and text. Golyar told police that she 

now suspected it was Flora, not Farver, who had been harassing her and Kroupa all along. Golyar consented to a download 

of her cell phone so police could review the harassing messages. After the download, the investigating officer told Golyar 

he would follow up with Flora on Monday.

On Saturday morning, Golyar sent the officer additional 

harassing messages she claimed were sent to her by Flora. 

Later that day, at 6:40 p.m., officers were dispatched to a park 

located in a wilderness area in Council Bluffs, Iowa. They 

found Golyar sitting on the ground near the driver’s side of 

the only car in the parking lot. Golyar had been shot in the 

left thigh. Golyar’s accounts of how the shooting occurred varied significantly over the course of the next several days and 

weeks, but she insisted Flora had shot her.

Based on Golyar’s statements at the scene, police went to 

Flora’s home. Flora testified that she answered her door to 

find “police standing at [her] door with guns pointed at [her].” 

Flora had been home with her 2-year-old son, and officers 

noticed her car was cold to the touch, indicating it had not 

been used recently. Police questioned Flora and found her 

cooperative.

Police obtained consent from both Flora and Kroupa to 

download their cell phones on Monday, December 7, 2015. 

The download from Kroupa’s cell phone showed many of the 

emails he received from “Farver” were sent from Butterbaugh’s 

internet protocol (IP) address while Golyar was living with 
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Butterbaugh. A digital forensic expert explained that an IP 

address is like a postal address for an electronic device and 

that it references a device’s access to the internet from a fixed 

location. He testified that if a device accessed a residence’s 

Wi-Fi, the IP address will be that residence.

In late January or early February 2016, Kroupa moved in 

with Flora over a weekend. The following week, Golyar contacted police, very upset that Flora had not been charged in 

relation to the shooting. Golyar again consented to a download of her cell phone after telling police she had received 

additional harassing emails from “Flora.” At this time, police 

generally told Golyar that they suspected Flora in the shooting, but needed additional information to charge her. This 

was untrue, because by this time, police suspected Golyar had 

shot herself.

Golyar then began receiving additional emails from “Flora” 

about Farver’s murder. These emails are dated between 

December 21, 2015, and February 24, 2016. Several of the 

emails confessed to the murder of Farver and the arson of 

Golyar’s residence, and at least one confessed to the shooting 

of Golyar. The emails confessing to killing Farver gave details 

of how the murder occurred. The emails contained various and 

sometimes inconsistent details about the murder, but consistently described that Farver was stabbed in her vehicle, her 

body was wrapped in a tarp then later burned and put in the 

garbage, her vehicle was cleaned afterward, the killer posed as 

Farver after the killing, and the killer went to Farver’s home 

after the killing. One email describes the interior of Farver’s 

home with precision.

8. Farver’s Explorer and

Other Evidence

The January 8, 2013, download from Golyar’s cell phone 

showed the cell phone had made six calls to Farver’s landline 

on November 6 and 7, 2012, just days before Farver disappeared. Also discovered in the download of Golyar’s cell 

phone was a photograph of Farver’s Ford Explorer. Metadata 
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showed the photograph was taken December 24, 2012. This 

date was after Farver disappeared on November 13 and before 

her Explorer was found parked near Kroupa’s apartment in 

January 2013. The download of Golyar’s cell phone also 

included a video that was uploaded to YouTube, a videosharing website, by “Farver.” The video showed an apartment 

complex that looked like Kroupa’s. The IP address used to 

access the YouTube account was Butterbaugh’s. The YouTube 

account was created in 2014, after Farver’s disappearance.

When Farver’s Explorer was initially discovered in Omaha 

in January 2013, it was examined by a crime scene technician. At the time, the technician was primarily looking for 

fingerprints and noticed the vehicle was very clean. The only 

fingerprints found were on a mint container in the center cupholder. In September 2015, investigators learned the fingerprints were Golyar’s.

On December 8, 2015, the Explorer was processed again by 

the same technician. This time she was looking for blood, but 

found none. On February 18, 2016, the technician processed 

the vehicle a third time. This time, she removed the cloth seat 

covers and found a large red stain on the passenger side seat 

foam. DNA testing showed it was Farver’s blood.

9. Search Warrants

In February 2016, investigators obtained warrants and 

searched the apartment where Golyar was living, as well as the 

residence where she had lived with Butterbaugh. The storage 

unit where Farver’s mother had moved Farver’s belongings 

was searched in March 2016.

Various items were found at Golyar’s apartment, including 

LG cell phones; a black-and-white floral shower curtain that 

matched the description of the one purchased at the discount 

store with Farver’s debit card on November 16, 2012; a red 

Sony video camcorder; a Nikon Coolpix digital camera; and 

memory cards. Owners’ manuals for the Nikon camera and the 

red Sony camcorder were found among Farver’s belongings 

during the search of the storage unit, along with receipts from 
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a furniture store showing Farver had purchased both items in 

October 2012.

10. Evidence Linked Golyar to

“Farver” and “Flora” Emails

Police also obtained search warrants for a large number of 

email accounts, including 31 from Google, 9 from Yahoo!, and 

5 from Microsoft. A digital forensic examiner gave detailed 

testimony linking Golyar to all relevant messages sent by 

“Farver” after her disappearance from these accounts based on 

IP address and device usage. The forensic examiner explained 

that when using these “imposter” accounts, Golyar often 

attempted to hide her identity by using services that either disguised her IP address and/or sent messages at times other than 

when they were composed. The forensic examiner also gave 

detailed testimony linking Golyar to all relevant messages sent 

by “Flora” from these accounts based on IP address and device 

usage. At trial, Golyar did not contest the forensic evidence 

linking her to these imposter accounts. Similarly, on appeal, 

Golyar does not contest that the State proved the emails from 

“Farver” and “Flora” were actually authored by Golyar.

11. Evidence Relating to

Farver’s Body

In one of the emails confessing to the murder, “Flora” 

described a “yin-yang” tattoo on Farver’s left hip. This tattoo 

had never been described to the public. Police located Farver’s 

ex-husband and learned that when the two married in 2009, 

they got matching yin-yang tattoos. Farver’s ex-husband’s tattoo was on his calf, and Farver’s was on her left hip. Police 

also obtained a photograph of Farver from her mother which 

showed a tattoo of the Chinese symbol for mother on the top 

of Farver’s left foot.

In February 2017, investigators recovered a tablet computer 

from Kroupa that had been accessible to Golyar while the two 

were dating. The tablet had a memory card known as a micro 

SD card inserted into it. The forensic digital examiner found 
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no existing files on the SD card, but was able to recover many 

deleted ones. These included over 13,000 photographs and 

numerous text messages sent either to or from Golyar.

The tablet did not have text capabilities, so the examiner 

realized the SD card must have been used with another device 

at one time. He discovered that Golyar’s “LG VS920” cell 

phone, the contents of which were downloaded by police on 

January 8, 2013, was compatible with the SD card. The login 

file for Golyar’s cell phone showed it had used the SD card. 

And 458 of the 13,000 photographs on the card were also on 

Golyar’s cell phone when it was downloaded.

Several of the photographs on the SD card were images of 

what appears to be a blue and grey or silver tarp, taken from 

various angles. Another photograph depicts a flesh-colored 

object with a yin-yang symbol on it. A forensic video analyst 

compared the yin-yang symbol in this photograph to an image 

of the yin-yang symbol on Farver’s ex-husband’s calf and 

concluded they were very consistent with each other. Another 

photograph depicts a flesh-colored object with a Chinese symbol on it. The video analyst compared the symbol in this photograph to the image of the tattoo on Farver’s left foot provided 

by Farver’s mother, and concluded the images were also very 

consistent with one another.

A forensic pathologist testified that the photograph depicting the Chinese symbol was a photograph of the top part of a 

human left foot. The pathologist opined that the foot showed 

signs of decomposition, but admitted she could not tell from 

the photograph how long the foot had been decomposing.

Golyar waived a jury trial, and she did not testify at the 

bench trial. After the State rested, Golyar moved for a “directed 

motion of acquittal,” which the court overruled. The defense 

did not present any evidence. Golyar was convicted of one 

count of first degree murder and one count of second degree 

arson. She was sentenced to life imprisonment on the murder 

conviction and to 18 to 20 years’ imprisonment on the arson 

conviction, the sentences to run consecutively. She appeals, 

represented by new counsel.
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II. ASSIGNMENTS OF ERROR

Golyar assigns and argues that the evidence at trial was 

insufficient to prove the elements of first degree murder and 

second degree arson. She also contends her trial counsel provided ineffective assistance by (1) not adequately advising 

her of her right to a jury trial, (2) failing to move to sever the 

charges against her, (3) failing to file any pretrial motions, (4) 

waiving objections to the vast majority of evidence introduced 

by the State, (5) failing to put on any sort of defense and/or 

investigate potential witnesses and alibis, (6) failing to call 

an expert to rebut the pathologist’s testimony, (7) failing to 

adequately advise Golyar on her right to testify at trial, and (8) 

being so unprepared for trial and unfamiliar with the case that 

he referred to Golyar and Farver by the wrong names.

III. STANDARD OF REVIEW

[1] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. 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.1

[2] 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. We determine as a matter of law 

whether the record conclusively shows that (1) a defense 

counsel’s performance was deficient or (2) a defendant was 

1 State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018), disapproved on 

other grounds, State v. Avina-Murillo, ante p. 185, 917 N.W.2d 865.
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or was not prejudiced by a defense counsel’s alleged deficient performance.2

IV. ANALYSIS

1. Evidence Was Sufficient to Prove

First Degree Murder

[3] Golyar argues the State’s evidence was insufficient 

to show she committed first degree murder. In Nebraska, a 

person commits first degree murder if he or she kills another 

person purposely and with deliberate and premeditated malice.3

 The State concedes the elements of murder were proved 

with circumstantial evidence, but contends it met its burden of proving each element beyond a reasonable doubt. 

We agree.

(a) Evidence of Death

[4,5] In a homicide case, corpus delicti is the body or substance of the crime—the fact that a crime has been committed.4

 It is not established until it is proved that a human being 

is dead and that the death occurred as a result of the criminal 

agency of another.5 Here, Farver’s body was never recovered. However, the body of a missing person is not required 

to prove the corpus delicti for homicide.6 Instead, courts 

have generally held that circumstantial evidence associated 

with the victim’s disappearance can be sufficient to establish 

the death.7

This court has specifically addressed such a situation. In 

State v. Edwards,

8

 we found sufficient circumstantial evidence 

2 Id.

3 Neb. Rev. Stat. § 28-303 (Supp. 2017).

4 State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).

5 Id.

6 Id.

7 See id.

8 Id.
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of a victim’s death even though her body was never recovered. 

Edwards relied in part on evidence that the victim abruptly 

severed her habits and relationships without explanation, abandoned her personal effects, and did not take any money from 

her bank account after her disappearance. Edwards also found 

other facts were suggestive of an unlawful killing, including that the victim’s blood was found and the suspect had 

attempted to conceal the victim’s disappearance.

Similar circumstantial evidence of Farver’s death appears 

in the record. Farver has not been seen since November 13, 

2012, when she abruptly ended her contacts with her teenage 

son, her parents, her employer, and her current boyfriend. Her 

money has not been accessed, aside from the use of her debit 

card on November 16, and that use has been linked to Golyar. 

Farver’s blood was found in her vehicle. Overwhelming and 

uncontested evidence showed that Golyar posed as Farver 

online and in social media in an attempt to conceal Farver’s 

disappearance.

In addition, the record before us contains additional circumstantial evidence of Farver’s death. Photographs of what 

appear to be body parts with tattoos identical to Farver’s tattoos were discovered on an SD card used with Golyar’s cell 

phone. And, most importantly, a forensic pathologist testified 

that a photograph on the same SD card of a human left foot, 

which had a tattoo consistent with the one on Farver’s left foot, 

showed signs the foot was in a state of decomposition.

We conclude a rational trier of fact, viewing the evidence 

in the light most favorable to the State, could have concluded 

the State proved beyond a reasonable doubt that Farver 

is dead.

(b) Purposely, Deliberate, 

and Premeditated

Golyar argues that even if there was sufficient evidence 

to prove Farver’s death, the “State did not introduce any 

evidence whatsoever to prove [Golyar] killed . . . Farver 

intentionally . . . and perhaps most significantly, the State’s 
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evidence was insufficient to prove [Golyar] killed [Farver] 

with deliberate and premeditated malice.”9

[6-12] Purposeful, deliberate, premeditated murder may be 

proved circumstantially.10 In the homicide context, deliberate 

means not suddenly, not rashly, and requires that the defendant 

considered the probable consequences of his or her act before 

doing the act.11 The term “premeditated” means to have formed 

a design to commit an act before it was done.12 One kills with 

premeditated malice if, before the act causing death occurs, 

one has formed the intent or determined to kill the victim 

without legal justification.13 No particular length of time for 

premeditation is required, provided the intent to kill is formed 

before the act is committed and not simultaneously with the 

act that caused the death.14 The design or purpose to kill may 

be formed upon premeditation and deliberation at any moment 

before the homicide is committed.15 The intent with which 

an act is committed is a mental process and may be inferred 

form the words and acts of the defendant and from the circumstances surrounding the incident.16

A rational fact finder viewing the evidence in the light 

most favorable to the State could have found that Golyar was 

obsessed with Kroupa and thus had a motive to harm Farver. 

The record shows that just days before Farver’s disappearance, Golyar made six telephone calls to Farver’s landline and 

vandalized Farver’s vehicle, suggesting a premeditated plan to 

harm Farver. Most significantly, however, the record contains 

the emails, authored by Golyar posing as Flora, confessing to 

9 Brief for appellant at 24.

10 See State v. Escamilla, 291 Neb. 191, 864 N.W.2d 376 (2015).

11 Id.

12 Id.

13 Id.

14 Id.

15 See id.

16 See State v. Sing, 275 Neb. 391, 746 N.W.2d 690 (2008).
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the details of the murder. A rational trier of fact could conclude these emails are Golyar’s own statements describing the 

manner of the murder, the motive for the murder, and her state 

of mind in committing the murder.

The emails authored by Golyar contain considerable evidence that Golyar killed Farver purposely and with deliberate 

and premediated malice. Some examples from those emails, 

with spelling errors corrected, include:

“I atta[c]ked her with a kn[i]fe I stabbed her three to 

four times in chest and stomach area. I t[h]en took her out 

and burned her.”

. . . .

“I k[i]lled [Farver] because she . . . wouldn’t leave 

[Kroupa] alone.”

. . . .

“I even went out to [Farver’s] place got some of 

[Farver’s] clothes and other th[i]ngs to make it look like 

she ran away.”

One email describes driving with Farver in Farver’s vehicle, 

and then stabbing Farver multiple times in the stomach. This 

email states Farver was alive after the stabbing and “begging 

for her life” while Golyar spent the “[w]hole t[i]me watch[i]ng 

the life drain fr[o]m her body.” Another email described the 

yin-yang tattoo on Farver’s left thigh in order to prove “I’m 

not lying about offing that crazy bitch.” Two of the emails 

refer to covering Farver’s body with a tarp.

Other evidence in the record corroborates some of the statements made in these emails, including the presence of Farver’s 

blood in her vehicle, evidence of Golyar’s obsession with 

Kroupa, evidence that Golyar accessed Farver’s home and took 

some of her possessions, the existence of the yin-yang tattoo 

on Farver’s left hip, and the photographs of tarp found on the 

SD card.

A rational fact finder viewing the evidence in the light 

most favorable to the State could conclude the State proved 

Golyar killed Farver purposely and with deliberate and premeditated malice. There is no merit to Golyar’s claim that the 
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evidence was insufficient to support her conviction for first 

degree murder.

2. Evidence Was Sufficient

to Prove Arson

[13] Golyar also argues there was insufficient evidence to 

support her conviction for second degree arson. As relevant 

here, a person commits arson in the second degree if he or she 

intentionally damages a building or property contained within a 

building by starting a fire or causing an explosion.17

Here, the evidence clearly established that the August 17, 

2013, fire at Golyar’s residence was intentionally set, as investigators discovered multiple origin sources and evidence that 

accelerants were used. On appeal, Golyar argues only that there 

was not sufficient evidence to prove she was the arsonist and 

that any such evidence was circumstantial.

[14] It is true the evidence linking Golyar to the arson is 

circumstantial, but circumstantial evidence is sufficient to support a conviction for arson if such evidence and the reasonable inferences that may be drawn therefrom establish guilt 

beyond a reasonable doubt.18 Viewing the evidence in the light 

most favorable to the State, a rational finder of fact could 

conclude the circumstantial evidence established Golyar was 

the arsonist.

There is no dispute Golyar had access to the property that 

was intentionally burned and had a motive to commit the 

arson. The arson was part of a pattern of vandalism purportedly committed by Farver but ultimately linked to Golyar via 

the uncontested digital forensic evidence. These acts of vandalism tended to occur at times when Kroupa was becoming 

less interested in Golyar and were designed to capitalize on 

a mutual fear of Farver and draw Kroupa back. Golyar and 

Kroupa had broken off their relationship just before the arson, 

and after the arson, they reunited. And, most significantly, 

17 See Neb. Rev. Stat. § 28-503 (Reissue 2016).

18 State v. McDonald, 230 Neb. 85, 430 N.W.2d 282 (1988).
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Golyar, posing as Flora, later confessed to committing the 

arson in two emails.

We conclude the circumstantial evidence and reasonable 

inferences therefrom were sufficient to support the arson conviction. Golyar’s arguments to the contrary are without merit.

3. Ineffective Assistance of Counsel

[15] Golyar claims her trial counsel provided ineffective 

assistance in several respects. She is represented on direct 

appeal by different counsel than she had during 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 in a subsequent postconviction proceeding.19

[16,17] 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 to recognize whether the claim was 

brought before the appellate court.20 The fact that an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved.21 The determining 

factor is whether the record is sufficient to adequately review 

the question.22

[18,19] Whether a claim of ineffective assistance of trial 

counsel may be determined on direct appeal is a question of 

law.23 In reviewing claims of ineffective assistance of counsel 

19 See State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017).

20 Id.

21 Id.

22 Id.

23 State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018); State v. Mora, 

298 Neb. 185, 903 N.W.2d 244 (2017).
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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.24

(a) Waiver of Jury Trial

Golyar claims her trial counsel was ineffective in advising 

her to waive her right to a jury trial. The record shows she 

waived this right not once, but twice.

Golyar was originally charged with only first degree murder. 

At her arraignment, she entered a plea of not guilty and asked, 

on the record, to waive her right to a jury. The court advised 

her of the constitutional right to a jury trial and explained the 

consequences of waiving such right. Golyar stated that she 

understood, and wanted to waive her right to a jury and proceed with a bench trial. She told the court she had discussed 

her desire to waive a jury with her attorney, and she confirmed 

that no one had promised her anything or forced or threatened 

her in any way to get her to waive a jury trial.

The State subsequently amended the information to add 

the second degree arson charge. At her arraignment on the 

amended information, Golyar pled not guilty and again asked 

to waive a jury trial. The court again advised her on the record 

of her right to a jury trial and the consequences of waiving 

such right. Golyar again stated she understood and wished to 

waive a jury. She affirmatively stated that she had discussed 

her desire to waive a jury with her attorney and that no one had 

promised her anything or forced or threatened her in any way 

to get her to waive a jury trial.

[20,21] The decision to waive a jury trial is ultimately and 

solely the defendant’s, and, therefore, the defendant must bear 

the responsibility for that decision.25 Counsel’s advice to waive 

a jury trial can be the source of a valid claim of ineffective 

24 Id.

25 State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2001).
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assistance only when (1) counsel interferes with the client’s 

freedom to decide to waive a jury trial or (2) the client can 

point to specific advice of counsel so unreasonable as to vitiate 

the knowing and intelligent waiver of the right.26

On appeal, Golyar does not suggest her attorney interfered 

with her freedom to decide whether to waive a jury, but contends only that trial counsel “did not adequately advise [her] 

regarding her right to a jury trial.”27 It is clear from the record 

that she discussed the waiver with her counsel, but beyond 

characterizing counsel’s advice on that issue as being inadequate, she offers no specifics about the advice counsel gave 

or why it was unreasonable. Golyar has thus failed to allege 

this claim of ineffective assistance with sufficient particularity. 

Moreover, because she concedes the court fully advised her of 

the right to a jury trial and the consequences of waiving that 

right, the record affirmatively refutes any showing of prejudice. This claim of ineffective assistance has no merit.

(b) Motion to Sever

Golyar argues her trial counsel was ineffective for failing to 

move, prior to trial, to sever the arson charge from the murder charge. Pursuant to Neb. Rev. Stat. § 29-2002(1) (Reissue 

2016):

Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for 

each offense if the offenses charged, whether felonies or 

misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on two 

or more acts or transactions connected together or constituting parts of a common scheme or plan.

And pursuant to § 29-2002(3), offenses properly joined 

under § 29-2002(1) may be tried separately if the court finds 

either the defendant or the State “would be prejudiced by a 

joinder.”

26 Id.

27 Brief for appellant at 33.
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Golyar argues both that the murder and arson charges were 

not properly joinable under § 29-2002(1) and that, even if 

they were, the joinder resulted in prejudice to her. She suggests that if her trial counsel had asked, the trial court would 

have ordered separate trials. We find the record is sufficient to 

review and reject this claim.

[22] The State’s theory was that the arson was part of 

Golyar’s common scheme or plan to cover up Farver’s murder. 

As such, the charges were properly joined under § 29-2002(1). 

Had trial counsel moved to sever, Golyar would have had the 

burden to show compelling, specific, and actual prejudice from 

the joinder.28 Prejudice from joinder cannot be shown if evidence of one charge would have been admissible in a separate 

trial of another charge.29

The record demonstrates that if the murder had been charged 

separately, evidence of the arson would have been admissible 

at that trial. The arson was part of Golyar’s scheme both to 

cover up Farver’s murder and to frame Flora for Farver’s murder. There is no merit to this claim of ineffective assistance of 

trial counsel.

(c) Pretrial Motions

Golyar argues her trial counsel was ineffective because 

he “failed to file any pretrial motions” and “failed to move 

to exclude any of the State’s anticipated evidence.”30 Golyar 

offers no specifics about what pretrial motions should have 

been filed, or what evidence should have been excluded, other 

than to remark that counsel did not file a motion to exclude the 

photographs found on the memory card depicting flesh-colored 

objects with tattoos and the pathologist’s testimony about 

decomposition.

But Golyar concedes, and the record confirms, that trial 

counsel made an oral motion to exclude the photograph 

28 State v. Cotton, supra note 1.

29 See id.

30 Brief for appellant at 35 (emphasis in original).
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depicting what appears to be a foot with a yin-yang tattoo and 

the pathologist’s testimony with respect to that photograph. 

In response, the court indicated it would make a determination on admissibility at the time of trial, after hearing foundational evidence. At trial, Golyar objected to the pathologist’s opinion, arguing the pathologist could not testify with 

a reasonable degree of certainty that the photograph was of a 

decomposing foot. That objection was overruled. The pathologist then testified the changes in the skin and the coloring in 

the photograph were “comparable” or “‘compatible with’” a 

decomposing human body.

The record thus refutes Golyar’s claim that there was no 

request to exclude the photograph and the pathologist’s testimony. And to the extent Golyar is attempting to raise claims 

that her trial counsel should have filed other pretrial motions 

or sought to exclude other evidence, we conclude Golyar has 

failed to allege such claims with sufficient particularity.

(d) Lack of Objections

Prior to trial, the State filed a motion in limine seeking a 

ruling on the admissibility of evidence regarding Golyar’s 

actions relating to property damage, threats, the shooting at the 

park, possession of stolen property, and harassment, claiming 

it was all inextricably intertwined with the charged crimes or, 

alternatively, was admissible rule 404 evidence.31 Trial counsel 

initially resisted the motion, and the State offered evidence in 

support of admissibility. Before the court ruled on the motion 

in limine, the parties agreed that all of the evidence at issue was 

admissible either as evidence that was inextricably intertwined 

with the charged criminal acts or as evidence of consciousness 

of guilt. Golyar argues this was ineffective assistance.

The record on appeal is sufficient to review and reject this 

claim. All of the evidence referenced by Golyar was either 

inextricably intertwined with the charged crimes or evidence 

of consciousness of guilt, and thus admissible. Trial counsel 

31 See Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2016).
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could not have performed deficiently by failing to object to 

admissible evidence.32

(e) Failure to Investigate

Golyar claims her trial counsel was ineffective for failing to 

investigate potential witnesses or alibis. She does not, however, 

identify any potential witnesses or alibis or specify what their 

testimony would have been.

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 to recognize whether the claim was 

brought before the appellate court.33 We find Golyar’s allegations are not sufficient to raise this claim on direct appeal, 

because a potential postconviction court could not identify if 

a particular failure to call a witness claim or pursue an alibi 

claim was the same one raised on direct appeal.34

(f) No Rebuttal of Pathologist

Golyar claims trial counsel was deficient in not investigating or calling an expert to rebut the pathologist’s testimony. 

We find this assertion is specific enough to raise the claim of 

ineffective assistance on direct appeal, but conclude the record 

on appeal is insufficient to allow us to resolve it.

(g) Advice Not to Testify

[23-25] Golyar claims her trial counsel was ineffective in 

advising her not to testify at the bench trial. A defendant has 

a fundamental constitutional right to testify.35 The right to 

32 See State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017).

33 State v. Loding, supra note 19.

34 See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).

35 U.S. Const. amend VI; State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 

(2017).
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testify is personal to the defendant and cannot be waived by 

defense counsel’s acting alone.36 Defense counsel bears the 

primary responsibility for advising a defendant of his or her 

right to testify or not to testify, of the strategic implications of 

each choice, and that the choice is ultimately for the defendant 

to make.37

[26] Defense counsel’s advice to waive the right to testify 

can present a valid claim of ineffective assistance of counsel in two instances: (1) if the defendant shows that counsel 

interfered with his or her freedom to decide to testify or (2) if 

counsel’s tactical advice to waive the right was unreasonable.38

Golyar does not claim trial counsel interfered with her freedom to decide whether to testify. Instead, she claims counsel 

“failed to advise [her] adequately.”39 She argues she had no 

prior criminal record and thus there was no risk of having that 

used against her if she testified. She also contends that by not 

testifying, she was denied the opportunity to explain her multiple instances of harassing and impersonating others. But she 

makes no allegations as to how counsel deficiently advised her 

regarding these matters or how his advice not to testify was 

unreasonable. As such, she has failed to allege deficient performance with enough particularity and has not properly raised 

this claim on direct appeal.

(h) Mixing Up Names

Finally, Golyar claims her counsel was “so unprepared and 

unfamiliar with the issues”40 that he often used the wrong 

names when referring to Golyar and Farver. A review of 

the record shows counsel did slip up at times, and at least 

twice called Farver by the wrong name. But it is also true 

36 State v. Johnson, supra note 35.

37 See id.

38 Id.

39 Brief for appellant at 38.

40 Id.
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that throughout the 10-day bench trial, a myriad of names 

and personas were introduced and discussed. A review of the 

record, in context, shows counsel’s use of the wrong name 

was infrequent and inadvertent. Moreover, Golyar does not 

contend, and the record does not suggest, that the court or the 

issues were confused by counsel’s occasional reference to the 

wrong name.

We conclude this claim has been sufficiently raised, and 

the record on appeal is adequate for us review it. We further conclude the record refutes this claim of ineffective 

assistance.

V. CONCLUSION

For the foregoing reasons, we affirm the convictions and 

sentences.

Affirmed.

Miller-Lerman, J., not participating.