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STATE v. SMITH

Cite as 302 Neb. 154

State of Nebraska, appellee, v. 

Jeffery S. Smith, Appellant.

___ N.W.2d ___

Filed February 1, 2019. No. S-18-178.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower 

court’s determination.

2. Constitutional Law: Witnesses: Appeal and Error. An appellate 

court reviews de novo a trial court’s determination of the protections 

afforded by the Confrontation Clause of the Sixth Amendment to the 

U.S. Constitution and article I, § 11, of the Nebraska Constitution and 

reviews the underlying factual determinations for clear error.

3. 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. 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.

4. 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.

5. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

Nebraska Supreme Court Online Library

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

03/08/2019 09:05 AM CST
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6. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

7. Statutes. It is not within the province of the courts to read a meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

8. Constitutional Law: Criminal Law: Trial: Witnesses. While the 

Confrontation Clause guarantees a criminal defendant a face-to-face 

meeting with witnesses appearing before the trier of fact, that guarantee 

is not an absolute right. But while the face-to-face requirement is not 

absolute, it cannot be disposed of easily.

9. Constitutional Law: Trial: Witnesses: Public Policy. A defendant’s 

right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only 

where the reliability of the testimony is otherwise assured.

10. Constitutional Law: Trial: Witnesses: Appeal and Error. An unconstitutional denial of face-to-face confrontation, like other types of violations of the Confrontation Clause, is subject to harmless error review.

11. Constitutional Law: Trial: Proof: Appeal and Error. Where the trial 

error is of a constitutional dimension, the burden must be on the beneficiary of the error to prove beyond a reasonable doubt that the error did 

not contribute to the verdict obtained.

12. Verdicts: Juries: Appeal and Error. Harmless error review ultimately 

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

actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

13. 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.

14. 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.
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15. 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.

16. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal 

principles in determining the sentence to be imposed.

17. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, 

(5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the 

amount of violence involved in the commission of the crime.

18. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

Appeal from the District Court for Harlan County: Terri S. 

Harder, Judge. Affirmed.

D. Brandon Brinegar, of Ross, Schroeder & George, L.L.C., 

for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Jeffery S. Smith appeals his convictions and sentences for 

first degree sexual assault of a child and felony child abuse 

following a bench trial in the district court for Harlan County. 

Smith claims that the court violated his constitutional right 

of confrontation when it allowed the alleged victim to testify outside Smith’s presence. Smith also makes claims of 

ineffective assistance of trial counsel, insufficiency of the 
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evidence, and excessive sentences. We affirm Smith’s convictions and sentences.

STATEMENT OF FACTS

Smith lived in Alma, Nebraska, with his wife, Rochelle 

Smith, their two children, and Rochelle’s two children from 

a prior relationship. The State originally charged Smith with 

four counts of first degree sexual assault of a child in violation of Neb. Rev. Stat. § 28-319.01(1)(b) (Reissue 2016) and 

four counts of felony child abuse in violation of Neb. Rev. 

Stat. § 28-707(1)(a) or (e) and (4) (Reissue 2016). The State 

amended the information to charge one count of each offense. 

The alleged victim with respect to each charge was R.F., who 

is Rochelle’s daughter from a prior relationship and who was 

born in February 2001. Smith was born in January 1978. The 

offenses were charged as having been committed between 

August 1 and September 30, 2016, when R.F. was 15 years old. 

Smith’s trial on the charges was held in October 2017, when 

R.F. was 16 years old.

In October 2016, police investigated suspected sexual abuse 

of R.F. by Ronald Lauhead, an adult friend of Smith and 

Rochelle. The investigation began after Smith reported to 

police that one of the other children had told him that she had 

seen Lauhead naked with R.F. The investigation led police to 

suspect that Smith and Rochelle had also been involved in the 

abuse of R.F., and eventually Smith, Rochelle, and Lauhead 

were each charged with offenses related to such abuse.

Smith waived his right to a jury trial, and the district 

court scheduled a bench trial for October 24, 2017. The State 

called Rochelle as its first witness. Rochelle’s testimony was 

as follows.

At the time of the trial, Rochelle was divorced from Smith. 

She had married Smith in 2007, and they had been married 

for over 10 years prior to the divorce. Rochelle has four children—two older children from a prior relationship and two 

younger children with Smith. R.F. is the oldest of Rochelle’s 

children. In 2013, Rochelle and Smith and the four children 
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moved into a house in Alma. Soon thereafter, Rochelle introduced Smith to Lauhead, whom she had known from high 

school. Smith and Lauhead became friends, and Lauhead 

frequently spent time at Smith and Rochelle’s house. One 

night in March 2016, when the children were asleep in their 

beds, Smith invited Lauhead to engage in a sexual encounter 

with Smith and Rochelle. Rochelle testified that she initially 

objected, but she eventually gave in and the three engaged in 

sexual activities in Smith and Rochelle’s bedroom. The next 

day, Rochelle told Smith that she was not comfortable with 

what they had done with Lauhead. However, Smith convinced 

Rochelle to engage in sexual encounters with Lauhead “[t]wo 

or three more times” in April.

The last time that Rochelle recalled engaging in group sexual 

activity with Smith and Lauhead was at the end of September 

2016. Rochelle finished working at 11 p.m., and when she 

returned home, Smith and Lauhead were watching television 

in the living room. The children were asleep in their rooms. 

Eventually, Smith “suggested another threesome” and Rochelle 

“went along with” the suggestion. The three went to Smith and 

Rochelle’s bedroom and removed their clothing. Smith and 

Rochelle lay on their bed touching one another, while Lauhead 

performed oral sex on Rochelle.

At some point, Smith got out of bed, put on his boxer shorts 

and left the bedroom. Shortly thereafter, Smith returned to 

the bedroom with R.F., who was wearing sweatpants and a 

T-shirt. Smith said that R.F. “was going to join in on the activity.” Rochelle told him “no, it wasn’t going to happen,” but 

Smith threatened that “if it didn’t happen he was going to take 

all the kids and leave [the] state and [Rochelle would] never 

see them again.” Smith then proceeded to undress R.F. and 

touch her breasts with his hands as they were standing beside 

the bed. After Smith had taken all of R.F.’s clothes off, he 

had her lie down on the bed and then he lay on the bed with 

R.F. and Rochelle. Lauhead, who had been performing oral 

sex on Rochelle, moved to the other side of the bed beside 
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R.F. Lauhead and Smith were both touching R.F.’s breasts 

and vagina.

In response to the State’s question regarding how Smith 

was touching R.F.’s vagina, Rochelle testified, “Just putting 

his hand on it and rubbing it.” The State further inquired 

regarding Smith’s touching R.F.’s vagina by asking, “[D]id 

you see him put his finger inside of her vagina?” Rochelle 

responded, “No.” The State asked, “What did you see him 

do?” Rochelle responded, “He was just fondling the top of it.” 

When the State asked Rochelle to describe what she meant by 

“fondling,” Rochelle stated, “Rubbing it.” The State returned 

to the topic in its redirect examination of Rochelle. The State 

asked Rochelle to describe Smith’s touching of R.F.’s vagina 

in “better detail.” Rochelle replied that “[h]e was touching 

the outward part of her vagina.” The State asked, “Was that 

between the skin folds known as the labia?” Rochelle replied, 

“Yes.” Upon further questioning, Rochelle testified that Smith 

had touched R.F. “between the lips of her vagina” for “[m]aybe 

three to five seconds” and that she had seen him do so “[j]ust 

once.” The State also asked, “But you did not see him actually 

insert his finger into her vaginal opening?” Rochelle replied, 

“No, ma’am.”

Rochelle testified on direct examination that during the 

encounter among the four, Lauhead had vaginal intercourse 

with R.F., while Smith had vaginal intercourse with Rochelle. 

She also testified that Smith did not attempt to stop Lauhead 

from having intercourse with R.F. After the encounter was finished, the four all got dressed, and Lauhead went home while 

R.F. returned to her bed. Thereafter, Rochelle never talked to 

R.F. about what had happened and R.F. did not try to talk to 

Rochelle about it.

On cross-examination, Rochelle testified that she had been 

arrested for child abuse with respect to the abuse of R.F. and 

that, as a result, her testimony in this case was being given pursuant to a plea agreement related to those charges. According 

to Rochelle, pursuant to the plea agreement, some charges 
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against her were being dismissed and the State agreed not to 

attempt to terminate her parental rights.

Rochelle testified that in her initial statement to police 

regarding the abuse of R.F., she had indicated that she had 

refused to participate in the sexual activity involving Smith, 

Lauhead, and R.F. She also testified that in the initial statement, she had said that Smith had touched R.F.’s breasts but 

she had not said that Smith touched R.F.’s vagina. On crossexamination, Rochelle testified that an examination in October 

2016 revealed that R.F. was pregnant and that Rochelle subsequently learned that neither Smith nor Lauhead was the father 

of the baby.

After Rochelle’s testimony was completed, the State called 

R.F. as a witness. Prior to trial, the State had filed a motion to 

allow R.F. to testify in camera and outside Smith’s presence. 

The State asserted in the motion that the request was being 

made pursuant to Neb. Rev. Stat. § 29-1926(1)(d) (Reissue 

2016), which generally relates to accommodations for child 

victims and child witnesses. In this case, the State sought in 

camera testimony by R.F. because of its concern that R.F. “will 

be harmed emotionally and psychologically if forced to testify 

in the presence of . . . Smith.” The State further asserted in the 

motion that R.F., who was 16 years old at the time, “has been 

diagnosed with Fragile X and functions at a much younger 

age than her biological age would suggest.” The State also 

requested that R.F.’s guardian ad litem be allowed to sit beside 

her when she testified.

At a hearing prior to trial, the court stated that its understanding was that Smith’s counsel had “indicated that he does 

not object to the State’s motion to allow [R.F.] to testify in 

camera and with a [guardian ad litem] present.” Smith’s counsel replied that he was not willing to stipulate to the request. 

The court therefore took the motion up as a contested matter 

and allowed the State to argue. In response to the court’s questions, the State said that R.F. was 16 years old and that she had 

“been diagnosed with among other things Fragile X, [and] was 
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in special education.” The State asserted that R.F.’s “biological 

age [was] much different than her functioning age.” After the 

State presented its argument, Smith stated, “I would object, 

Judge. I guess [on] the primary basis of confrontation . . . .” 

Smith requested that the court reserve ruling on the motion 

until the court had had a chance to voir dire R.F. The court 

stated that it would delay ruling until voir dire could be made 

of R.F. at the time of trial.

After the State called R.F. as a witness, the court asked 

whether the State was withdrawing its motion. The State said 

that it was not and that it renewed its motion to have R.F. 

testify in camera. The court stated its understanding that the 

plan had been to wait until the trial to rule on the motion and 

decided to move from the courtroom to the jury room in order 

to hear the motion.

The court began the hearing on the motion by stating that 

the proceeding was taking place “in the jury room outside the 

presence of . . . Smith” and that R.F., R.F’s guardian ad litem, 

the State’s counsel, and Smith’s counsel were present in the 

jury room. The court explained the proceeding to R.F. and 

had R.F. take an oath. The State began by asking R.F. general 

questions regarding her age, her school, and her baby. R.F. 

testified that she was 16 years old, that she was in 11th grade 

in high school, that she had a baby, and that she generally 

took care of the baby but was helped by her foster mother. 

R.F. also testified that she did not know if she had ever been 

diagnosed with any illness. The State then asked R.F. whether 

she remembered that she had come to tell the judge what had 

happened to her. R.F. replied, “Yes,” and the State asked “do 

you want to do that in front of [Smith]?” R.F. replied, “Um, 

probably not.” The State asked why not, and R.F. replied, 

“Because I probably going to get scared.” The State asked 

why she would be scared, and R.F. replied, “Because I’m 

going to probably do is probably I kind of — I’m going to 

get — probably going to end up doing is probably do is just 

try.” The State then asked questions to establish that R.F. 
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knew the difference between the truth and a lie and that R.F. 

was going to tell the truth.

Smith’s counsel cross-examined R.F. and elicited testimony 

that R.F. had talked to several people about what had happened to her. Counsel asked whether R.F. understood that 

Smith would not get to ask her questions and that instead 

counsel would ask questions. R.F. replied that she understood 

and that it did not scare her to be questioned by counsel. 

Counsel asked whether it would be impossible for R.F. to talk 

if Smith were in the room, and she replied, “Um, well, I, um, 

I’m going to be kind of scared.” Upon further questioning by 

Smith’s counsel, R.F. stated:

I probably I don’t want to see him because I don’t want 

to and I just think that I just don’t want to see him at 

all. And I really do not want to live with him anymore 

because I know what happened and I just don’t think that 

he is not a good dad to me.

After Smith’s counsel finished questioning R.F., the court 

said, “All right. [R.F.], I am going to allow you to give your 

testimony in this room outside the presence of [Smith.]” The 

court also stated that R.F.’s guardian ad litem would be allowed 

to stay with her during her testimony. After allowing a brief 

time for counsel to prepare, the court began R.F.’s testimony by 

noting for the record that the court was in the jury room with 

R.F., R.F.’s guardian ad litem, the State’s counsel, and Smith’s 

counsel present. The court reminded R.F. that she was under 

oath, and the State began its direct examination of R.F.

After some initial general questioning, the State asked 

R.F. whether she remembered “a time when you were in 

your mom and dad’s bedroom with your mom and your dad 

and [Lauhead].” R.F. replied that she remembered. R.F. testified that Smith came downstairs to her bedroom and took 

her upstairs. R.F. testified that when she was in Smith and 

Rochelle’s bedroom, Smith took her clothes off and he lay 

on top of her while he had no clothes on. R.F. testified that 

Lauhead and Rochelle were also present in the bedroom. The 
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State used diagrams of male and female bodies to aid R.F.’s 

testimony. By referencing the diagrams, R.F. indicated that 

Smith had touched her breasts with his hands. She also testified that both Smith and Lauhead had touched her genital 

area with “that thing,” indicating the genital area of the male 

body diagram.

After the State completed its direct examination of R.F., 

Smith’s counsel asked to leave the jury room before crossexamining R.F. in order to confer with Smith who had not been 

present for R.F.’s testimony. The court allowed a break of 5 

minutes. The trial thereafter continued with defense counsel’s 

cross-examination of R.F. in the jury room outside of Smith’s 

presence. Smith’s counsel questioned R.F. regarding, inter alia, 

her prior interviews by advocacy counselors.

After R.F.’s testimony was completed, the court returned 

to the courtroom and the trial continued in Smith’s presence. 

After the State completed its presentation of evidence and 

rested, Smith moved to dismiss the charges. The court overruled Smith’s motion.

Smith testified in his own defense. He generally denied 

that he had been involved in sexual encounters with Rochelle 

and Lauhead in March and April 2016. He testified that in 

late September, he was suspicious that Rochelle was having a 

sexual relationship with Lauhead. One day while the children 

were in school, he argued with Rochelle and told her that if 

she had sexual relations with Lauhead behind his back she 

might as well have them in front of him. Rochelle led Smith 

and Lauhead, who was also in the house, to the bedroom 

where she had sexual relations with Smith while Lauhead 

watched. After Smith was finished, Rochelle had sexual relations with Lauhead. Smith testified that he watched Rochelle 

and Lauhead for a while but became disgusted and left. Smith 

denied that R.F. was involved in the encounter in September, 

and he denied having had any sexual relations with R.F. or 

touching her breasts or vagina at any time. Smith testified 

that in October, one of his younger daughters told him she 
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had seen Lauhead naked with R.F. Smith had the daughter tell 

Rochelle what she had seen, and he then went to the police to 

report what Lauhead had done.

During its cross-examination of Smith, the State recited 

certain statements and asked Smith whether he had ever made 

those statements to anyone. Smith denied making the statements. In its rebuttal, the State called as a witness Russell 

Solky, who in October 2016 had spent 2 days in the Harlan 

County jail with Smith as his cellmate. Solky testified regarding statements Smith had made to him during that time. 

The statements Solky recited included some of the statements 

Smith had just denied having made to anyone during the State’s 

cross-examination of Smith. Solky testified that he and Smith 

talked about why each of them was in jail and that Smith said 

that he had been arrested for child molestation and that “his 

wife made a statement or something like that.” Smith also told 

Solky that his wife “kept breaking his self-esteem down, trying 

to say that he was a worthless piece of shit, no woman would 

ever want to be with him.” Solky asked Smith whether he had 

had an affair, and Smith replied that he could not, because “it’s 

a real small town, everybody knows me. . . . [I]f I go to a bar 

and try to pick somebody up, everybody knows me, I can’t do 

that.” During the State’s redirect examination, Solky further 

testified that Smith “said when he wasn’t getting [sex] from 

his wife he was getting it from his kid.” When Solky asked 

which of his children, Smith replied that “it was his special 

needs daughter.”

On cross-examination, Smith elicited testimony from Solky 

to the effect that charges against Solky had been dismissed in 

exchange for his testimony in this case. On surrebuttal, Smith 

testified and denied the statements Solky attributed to him. 

Smith testified that he had told Solky that he was in jail for 

“assault,” not child molestation.

After all the evidence had been presented, the court ordered 

a schedule for the parties to submit written closing statements. 

On November 15, 2017, the court filed an order in which it 
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found Smith guilty beyond a reasonable doubt of both first 

degree sexual assault of a child and felony child abuse. In the 

order, the court reviewed the charges against Smith and the 

evidence presented at the trial. In connection with its review 

of R.F.’s testimony, the court stated that it had sustained the 

State’s motion and allowed R.F. to give her testimony in camera. The court stated, “There was evidence during the trial that 

R.F. is autistic and has Fragile X Syndrome. R.F. clearly suffers from a mental disability. Her manner was very child-like, 

not at all what you would expect of a 16 year old.”

In its order, after reviewing the evidence, the court set forth 

the reasoning behind its findings of guilt and which evidence it 

found determinative. The court stated that it found Rochelle’s 

testimony to be credible. The court noted that if Rochelle was 

lying, it would have been easy for her to say that Smith had 

penetrated R.F. with his finger or with his penis; the court 

stated that it was “doubtful that Rochelle knew that under the 

law, placing your fingers between the lips of the labia or rubbing the top of the vagina was penetration, and thereby, first 

degree sexual assault.” Turning to R.F.’s testimony, the court 

stated that her testimony alone would not support conviction beyond a reasonable doubt, because R.F.’s testimony was 

“troubling” and “inconsistent” with regard to whether Smith 

had assaulted her. But the court stated that it had not “wholly 

disregarded” R.F.’s testimony, because R.F. was consistent in 

her testimony that Lauhead had sexually assaulted her and 

because R.F. had credibly testified that Smith retrieved her 

from her bedroom and had undressed her. The court further 

found credible Solky’s testimony regarding statements Smith 

made to him when they were cellmates. The court specifically 

found credible Solky’s testimony regarding Smith’s statements 

concerning the way his wife treated him and how when he was 

not getting sex from his wife, he would get it from his “special 

needs daughter.”

The court stated that it gave the court pause that Smith was 

the one who had initially reported Lauhead’s sexual assault of 
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R.F. to police. But the court’s concerns appeared to be satisfied 

by the State’s argument that two factors may have prompted 

Smith’s report to police. First, Smith feared that R.F. might 

be pregnant, and second, Smith’s younger daughter had seen 

Lauhead naked with R.F. These two factors gave Smith reason 

to fear that “a lot of questions were going to be asked” and 

gave him motivation to “‘rat out’” Lauhead.

Based on the evidence and reasoning set forth above, the 

court found Smith guilty of first degree sexual assault of a 

child. Regarding the charge of felony child abuse, the court 

determined that evidence of Smith’s “introducing R.F. into 

the foursome, penetrating her and not stopping Lauhead from 

sexually assaulting her is child abuse that meets both prongs 

of § 28-707 as charged in this case.” The court further noted 

that even if Smith had not himself sexually assaulted R.F., 

“he would be guilty of child abuse for allowing Lauhead to 

sexually assault her.” The court therefore found Smith guilty of 

child abuse beyond a reasonable doubt.

The district court thereafter sentenced Smith to imprisonment for 20 to 30 years for first degree sexual assault of a child 

with a mandatory minimum sentence of 15 years and with 

credit for time served of 199 days. The court also sentenced 

him to imprisonment for 2 to 3 years for felony child abuse and 

ordered the sentence to be served concurrently to the sentence 

for first degree sexual assault of a child.

Smith appeals his convictions and sentences.

ASSIGNMENTS OF ERROR

Smith claims that the district court erred when it heard R.F.’s 

testimony outside Smith’s presence, in violation of § 29-1926 

and in violation of Smith’s constitutional right of confrontation. Smith, who has new counsel on direct appeal, also claims 

that trial counsel provided ineffective assistance when counsel 

(1) failed to call witnesses that Smith had informed counsel 

he wanted to testify, (2) failed to use video recordings of prior 

interviews of R.F. to impeach her testimony, and (3) failed 
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to use a video recording of a prior interview of Rochelle to 

impeach her testimony. Smith further claims that there was 

insufficient evidence to support his convictions and that the 

court imposed excessive sentences.

STANDARDS OF REVIEW

[1] Statutory interpretation presents a question of law, which 

an appellate court reviews independently of the lower court’s 

determination. State v. Kennedy, 299 Neb. 362, 908 N.W.2d 

69 (2018).

[2] An appellate court reviews de novo a trial court’s determination of the protections afforded by the Confrontation 

Clause of the Sixth Amendment to the U.S. Constitution and 

article I, § 11, of the Nebraska Constitution and reviews 

the underlying factual determinations for clear error. State v. 

Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).

[3] Whether a claim of ineffective assistance of trial counsel 

may be determined on direct appeal is a question of law. State 

v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018). 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. Id.

[4] 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. State v. Mueller, 301 Neb. 778, 920 

N.W.2d 424 (2018).
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[5] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court. Id.

ANALYSIS

District Court Erred by Hearing R.F.’s Testimony Outside 

Smith’s Presence Without Following Constitutional 

Requirements to Protect Smith’s Confrontation 

Rights, but Such Error Was Harmless Error.

Smith first claims that the district court erred when it heard 

R.F.’s testimony outside his presence. He contends that the 

court’s decision violated both § 29-1926 and his constitutional 

right of confrontation. Smith makes three general arguments 

with respect to R.F.’s in camera testimony outside his presence. Smith argues that (1) § 29-1926 did not apply to R.F.’s 

testimony, because the statute does not apply to a witness who 

is older than 11 years of age; (2) even if § 29-1926 applied, the 

court failed to make the particularized findings required under 

the statute; and (3) whether or not § 29-1926 applied, the court 

infringed upon his constitutional right of confrontation when it 

heard R.F.’s testimony outside his presence and without making accommodations to protect his right of confrontation. We 

determine that § 29-1926 did not apply to R.F.’s testimony and 

did not justify the court’s decision to hear R.F.’s testimony 

outside Smith’s presence. We further determine that, to the 

extent the court had authority outside § 29-1926 to hear R.F.’s 

testimony in camera rather than in the courtroom, the court’s 

decision to hear R.F.’s testimony outside Smith’s presence 

did not comport with constitutional requirements to protect 

Smith’s right of confrontation. However, given the court’s 

explicit findings in this bench trial, we conclude that the error 

was harmless.

We first address, without reference to constitutional confrontation requirements, whether § 29-1926 applied to the court’s 

decision to allow R.F. to testify in camera. The State had filed a 

motion prior to trial in which it requested that R.F. be allowed 
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to testify at trial in camera pursuant to § 29-1926(1)(d). 

We note that at both the hearing prior to trial and the hearing immediately prior to R.F.’s testimony, § 29-1926 and its 

requirements were not explicitly referenced, and that therefore, 

it is not clear whether the court made its decisions regarding 

R.F.’s testimony pursuant to § 29-1926 or pursuant to some 

other authority. Nevertheless, because the State’s motion stated 

that it was made pursuant to § 29-1926(1)(d), we examine the 

statute and its applicability to this case.

Section 29-1926 generally provides that under specific circumstances, “a child victim of or child witness to” a felony 

may provide testimony by videotape deposition rather than 

testifying in court. Section 29-1926(d) provides, “If the child 

testifies at trial in person rather than by videotape deposition, 

the taking of the child’s testimony may, upon request of the 

prosecuting attorney and upon a showing of compelling need, 

be conducted in camera.” Section 29-1926(g) also provides, 

“For purposes of this section, child means a person eleven 

years of age or younger at the time the motion to take the 

deposition is made or at the time of the taking of in camera 

testimony at trial.”

At the time of the trial in this case, R.F. was 16 years old. 

In its motion, the State asserted that R.F. “functions at a much 

younger age than her biological age would suggest.” However, 

the definition of “child” in § 29-1926(g) refers to the chronological age of “a person eleven years of age or younger.” The 

definition makes no reference to a person who functions at the 

level of a person 11 years of age or younger.

[6,7] Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are 

plain, direct, and unambiguous. State v. McGuire, 301 Neb. 

895, 921 N.W.2d 77 (2018). Giving § 29-1926(g) its plain 

and ordinary meaning, a “child” for purposes of § 29-1926 

is defined as a person whose biological age is 11 years or 

younger. It is not within the province of the courts to read 
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a meaning into a statute that is not there or to read anything 

direct and plain out of a statute. State v. Swindle, 300 Neb. 

734, 915 N.W.2d 795 (2018). We therefore cannot read into 

§ 29-1926 the inclusion of persons whose biological age is 

over 11 years but whose mental or functional age is equivalent 

to that of one who is 11 years of age or younger. To the extent 

there is sentiment that such a witness should be included 

within the operation of the statute, “the remedy lies with the 

Legislature to amend” § 29-1926. See State v. Wright, 261 

Neb. 277, 288, 622 N.W.2d 676, 684 (2001). In this regard, 

we are aware of at least one other state which has statutes that 

operate like § 29-1926 but explicitly apply to witnesses with 

intellectual disabilities. See Fla. Stat. Ann. §§ 92.53 and 92.54 

(West Cum. Supp. 2019).

Having determined that § 29-1926 did not apply to R.F.’s 

testimony in this case, we need not consider whether the court 

complied with the specific requirements of § 29-1926 when 

it made its decision. Nevertheless, we note in passing that 

§ 29-1926(h) provides, in part, that “[n]othing in this section 

[regarding making accommodations] shall restrict the court 

from conducting the pretrial deposition or in camera proceedings in any manner . . . consistent with the right to confrontation guaranteed in the [federal and Nebraska Constitutions].” 

These portions of the statute indicate a legislative recognition 

that the statute applies to a decision to allow a witness to testify outside a courtroom setting but that the decision whether 

a deposition may be taken or testimony given outside the presence of the defendant is to be determined pursuant to other 

authority, including constitutional requirements protecting the 

right of confrontation.

In this regard, Smith’s complaint focuses on the fact that 

R.F.’s testimony was given outside his presence. Thus, our 

analysis inevitably turns to whether the court’s decision to 

hear R.F.’s testimony outside Smith’s presence comported 

with constitutional requirements to protect his confrontation rights. The U.S. Supreme Court addressed constitutional 
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confrontation requirements with regard to a child witness’ testimony outside the defendant’s physical presence in Maryland 

v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 

(1990). In that case, the Court considered a Maryland statute 

which, unlike our reading of § 29-1926 set forth above, the 

Maryland court had interpreted to allow the child to testify 

outside the presence of the defendant. In considering whether 

the Maryland statute could be used to allow testimony outside the defendant’s presence without violating constitutional 

confrontation rights, the Court set forth principles of confrontation analysis that we believe have application whether 

a court’s decision on how to take witness testimony is made 

pursuant to a statute or pursuant to some other authority of 

the court.

[8] In Maryland v. Craig, the Court reasoned that while the 

Confrontation Clause guaranteed a criminal defendant a faceto-face meeting with witnesses appearing before the trier of 

fact, that guarantee was not an absolute right. The Court further 

stated that while the face-to-face requirement was not absolute, 

it could not be disposed of easily. We note that Justice Scalia, 

joined by three other justices, dissented and questioned whether 

face-to-face confrontation could be dispensed with even under 

the standards set forth by the majority. Justice Scalia reasoned 

that the Confrontation Clause “guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was ‘face-to-face’ confrontation.” Maryland 

v. Craig, 497 U.S. at 862 (Scalia, J., dissenting) (emphasis 

in original).

[9] Based on its reasoning that a face-to-face confrontation was not an absolute right but could not be disposed of 

easily, the Court in Maryland v. Craig held that “a defendant’s right to confront accusatory witnesses may be satisfied 

absent a physical, face-to-face confrontation at trial only where 

denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” 497 U.S. at 850. The Court then 
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analyzed the Maryland statutory procedure in light of these 

two requirements.

The Court in Maryland v. Craig first addressed the second 

requirement—that reliability of the testimony is otherwise 

assured—and concluded that Maryland’s statute preserved “all 

of the other elements of the confrontation right,” which the 

Court described to include requirements that the witness must 

be found competent to testify and must testify under oath; 

that the defendant retained full opportunity for contemporaneous cross-examination; and that the judge, jury, and, notably, 

the defendant were able to view the demeanor of the witness as he or she testified. 497 U.S. at 851. The Court stated 

that this final requirement was satisfied, because the statute 

required use of a one-way closed circuit television procedure 

through which the court, the jury, and the defendant were able 

to view the questioning of the witness by prosecutors and 

defense counsel.

Having found that the statute met the second requirement, 

the Court indicated that the critical inquiry in Maryland v. 

Craig was whether dispensing with face-to-face confrontation was necessary to further an important public policy. 

The Court concluded that “a State’s interest in the physical 

and psychological well-being of child abuse victims may be 

sufficiently important to outweigh, at least in some cases, 

a defendant’s right to face his or her accusers in court.” 

Maryland v. Craig, 497 U.S. 836, 853, 110 S. Ct. 3157, 

111 L. Ed. 2d 666 (1990). The Court cautioned, however, 

that the “requisite finding of necessity must of course be a 

case-specific one: The trial court must hear evidence and 

determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the 

particular child witness who seeks to testify.” Id., 497 U.S. at 

855. The Court further stated that the trial court “must also 

find that the child witness would be traumatized, not by the 

courtroom generally, but by the presence of the defendant.” 

Id., 497 U.S. at 856. The Court reasoned that “[d]enial of 
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face-to-face confrontation is not needed to further the state 

interest in protecting the child witness from trauma unless it 

is the presence of the defendant that causes the trauma,” and 

it noted that general courtroom trauma could be addressed by 

permitting the child witness “to testify in less intimidating 

surroundings, albeit with the defendant present.” Id., 497 U.S. 

at 856. The Court finally stated that in order to dispense with 

face-to-face confrontation, the trial court must further “find 

that the emotional distress suffered by the child witness in the 

presence of the defendant is more than de minimis, i. e., more 

than ‘mere nervousness or excitement or some reluctance to 

testify.’” Id., 497 U.S. at 856. The Court did not set forth a 

“minimum showing of emotional trauma required for use of 

the special procedure,” but it found that the standard used 

in the Maryland statute—that the “child witness will suffer 

‘serious emotional distress such that the child cannot reasonably communicate’”—was sufficient to meet constitutional 

standards. Id., 497 U.S. at 856. Having set forth these standards, the Court remanded the cause for further proceedings 

to determine whether a showing of necessity had been made 

under these standards. Maryland v. Craig, supra.

The Court summarized its holding in Maryland v. Craig, 497 

U.S. at 857, as follows:

[W]here necessary to protect a child witness from trauma 

that would be caused by testifying in the physical presence 

of the defendant, at least where such trauma would impair 

the child’s ability to communicate, the Confrontation 

Clause does not prohibit use of a procedure that, despite 

the absence of face-to-face confrontation, ensures the 

reliability of the evidence by subjecting it to rigorous 

adversarial testing and thereby preserves the essence of 

effective confrontation.

We set forth similar standards in State v. Warford, 223 Neb. 

368, 389 N.W.2d 575 (1986), a case that was decided before

Maryland v. Craig and before the 1988 enactment of § 29-1926. 

In Warford, the trial court allowed a child victim-witness to 
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testify in chambers with the judge and counsel for both parties 

present in chambers, while the defendant and the jury watched 

from the courtroom by closed-circuit television. We determined 

that the procedure used by the trial court in Warford failed 

to protect the defendant’s right to confrontation under both 

the federal and Nebraska Constitutions. Similar to the U.S. 

Supreme Court’s subsequent holding in Maryland v. Craig, we 

held in Warford that “[t]he right of confrontation is not . . . 

immune to exception,” but that “a limitation of the right can 

only be necessitated by a showing of a compelling interest and 

any infringement must be as minimally obtrusive as possible.” 

223 Neb. at 375, 389 N.W.2d at 580-81.

With respect to the “showing of a compelling interest,” we 

concluded that the record in Warford did not show “a compelling need to protect the child witness from further injury.” 223 

Neb. at 376, 389 N.W.2d at 581. We stated that before the witness could be allowed to testify outside the defendant’s presence, there should be “a particularized showing on the record 

that the child would be further traumatized or was intimidated 

by testifying in the courtroom in front of the defendant.” Id. at 

377, 389 N.W.2d at 581. With respect to the infringement of 

the right to confrontation being as minimally obtrusive as possible, we stated that “[a]t the very least, the defendant must at 

all times have a means of communicating with his attorney, and 

the court must be able to control the examination by interrupting the questioning to rule on objections.” Id. We noted that 

under the procedure used in Warford, “[t]he defendant could 

not physically confront his accuser, nor could he confront the 

witness through counsel because he had no means of communicating with his attorney,” and we concluded that this procedure 

“unduly inhibited the defendant’s confrontation right and was 

therefore constitutionally objectionable.” 223 Neb. at 377, 389 

N.W.2d at 582.

We review the procedure used by the district court in this 

case under the standards set forth in Maryland v. Craig, 497 

U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), and in 
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Warford. As did the Court in Maryland v. Craig, we first look 

to the second requirement—whether reliability of the testimony 

is otherwise assured despite the absence of face-to-face confrontation, or as stated in Warford, whether the infringement of 

a defendant’s right of confrontation was as minimally obtrusive 

as possible. The Court in Maryland v. Craig found this requirement was met, because the Maryland statutory procedure preserved all the other “elements” of confrontation, including that 

the witness must be found competent to testify and must testify 

under oath; that the defendant retains full opportunity for contemporaneous cross-examination; and that the judge, jury, and 

the defendant are able to view the demeanor of the witness as 

he or she testified. 497 U.S. at 851. In the present case, R.F. 

was found competent to testify and she testified under oath. 

This was a bench trial, so the jury’s ability to view the witness 

was not relevant, but the court, as the fact finder, was able to 

view R.F. as she testified.

However, because Smith was not able to view R.F.’s 

demeanor as she testified, whether by closed-circuit television or otherwise, the procedure in this case fell short of that 

set forth in Maryland v. Craig in a significant way. This failure limited Smith’s ability to confront R.F., because he was 

not able to advise counsel on matters that he observed that 

might provide avenues to challenge the credibility of R.F. 

Furthermore, in Warford, we stated that the defendant must at 

all times have a means of communicating with his attorney. 

Although in the present case the court allowed Smith’s attorney to briefly meet with Smith after R.F.’s direct testimony 

and before the cross-examination, the procedure did not fully 

protect Smith’s right of confrontation, because he had not been 

able to view R.F.’s direct testimony and he was not able to 

communicate with his attorney during R.F.’s direct testimony 

or during the cross-examination.

Turning to the requirement in Maryland v. Craig that 

infringement of the right of confrontation must be found to be 

necessary to further an important public policy, or, as stated 
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in State v. Warford, 223 Neb. 368, 389 N.W.2d 575 (1986), a 

showing of a compelling interest, we acknowledge that there 

is an important public policy in protecting young victims who 

may be retraumatized by testifying in front of a defendant. In 

this respect, we note that Nebraska’s public policy has been 

expressed, at least to some extent, in § 29-1926, and as discussed above, the present case does not fit within the public 

policy stated in § 29-1926, because R.F. was 16 years old and 

the statute applies only to those 11 years of age and younger. 

Also as noted above, even when § 29-1926 applies, it does 

not explicitly allow for testimony outside the presence of the 

defendant and it does show a legislative intent to respect the 

defendant’s right of confrontation, including the right to faceto-face confrontation. Taking guidance from the constitution, 

cases, and statute, we cannot unreservedly state that adherence 

to a generally recognized important public policy or compelling interest was demonstrated in this case.

We believe that in the absence of an express public policy 

that covers a specific case, before an infringement of confrontation rights can be justified in a specific case, it is vital under 

Maryland v. Craig that there is a clear determination of the 

justification made on a case-specific basis.

In Warford, we required “a particularized showing on the 

record that the child would be further traumatized or was 

intimidated by testing in the courtroom in front of the defendant.” 223 Neb. at 377, 389 N.W.2d at 581. Although it does not 

apply here, § 29-1926(h) requires “particularized findings on 

the record” to determine that “there is a compelling need that 

child testimony accommodation is required.” But, foremost, 

the constitutional requirements for several ultimate findings 

were set forth in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 

3157, 111 L. Ed. 2d 666 (1990). That decision mandates those 

findings, at a minimum.

In the present case, the court held a hearing to determine 

whether R.F. could testify outside Smith’s presence. However, 

after the hearing, the court did not make the ultimate findings 
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mandated by Maryland v. Craig, which, in essence, require a 

compelling interest to support its decision to allow R.F. to testify outside Smith’s presence. Instead, at the end of the hearing, 

the court simply told R.F. that it would allow her to testify in 

camera outside Smith’s presence. As set forth in Maryland v. 

Craig, the requisite findings include findings that (1) the child 

witness would be traumatized, not by the courtroom generally, 

but by the presence of the defendant, and (2) “the emotional 

distress suffered by the child witness in the presence of the 

defendant is more than de minimis, i. e., more than ‘mere 

nervousness or excitement or some reluctance to testify.’” 

497 U.S. at 856. The Court noted in this respect that general 

courtroom trauma could be addressed by permitting the child 

witness “to testify in less intimidating surroundings, albeit with 

the defendant present,” thus respecting the defendant’s confrontation right. Id., 497 U.S. at 856. Incidentally, this is consistent with the terms of § 29-1926, which we see as protecting 

the child witness from courtroom trauma while protecting the 

defendant’s right of confrontation.

We read the record before us, but without the benefit of 

such findings. R.F.’s responses during the hearing indicate 

feelings of nervousness, excitement, or reluctance to testify 

in the presence of Smith, but not necessarily severe emotional 

distress. R.F. understandably states that she does not want to 

be around Smith, but she frames her aversion as not wanting 

to live with him again because he is not a good parent. When 

asked whether she wants to testify in front of Smith, she says 

that she does not and expresses nervousness but concludes that 

what she will “probably do is just try.” This does not clearly 

show that R.F. would suffer trauma that would prevent her 

from being able to communicate.

In the absence of the ultimate findings required by Maryland 

v. Craig, it is difficult for us to determine from the cold record 

of R.F.’s statements how the prospect of testifying in front of 

Smith affected her; nonverbal cues and body language could 

inform an impression that her words do not. And although 
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not a requirement, it might have been productive in this case 

to have testimony from an expert or someone who knew R.F. 

well to indicate the effect testifying in front of Smith could 

have had on R.F. Furthermore, in the record before us, there 

are assertions that R.F. suffers certain developmental impairments, but it is not clear whether there has been expert evidence regarding her level of functioning or how testifying 

in Smith’s presence might cause her a special trauma due to 

a disability.

Given the applicable law and record in this case, we conclude the procedure used was constitutionally deficient. We 

note that in the present case, there were not sufficient particularized findings to support a public policy or a compelling interest to curtail Smith’s confrontation rights. We further 

determine that there were not adequate procedures to compensate for the lack of face-to-face confrontation, mainly because 

Smith was not able to view R.F.’s testimony, even remotely, 

and he did not have communication with counsel at all times. 

Based on these shortcomings, we conclude that the court’s 

decision to hear R.F.’s testimony outside Smith’s presence did 

not comport with constitutional confrontation requirements as 

set forth in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 

111 L. Ed. 2d 666 (1990), and State v. Warford, 223 Neb. 368, 

389 N.W.2d 575 (1986).

[10] Although the court erred in hearing R.F.’s testimony 

outside Smith’s presence without adequately safeguarding 

Smith’s confrontation rights, such error is subject to harmless 

error review. We have said that a violation of a defendant’s 

constitutional right of confrontation that results in the improper 

admission of evidence is trial error subject to harmless error 

review. See State v. Leibel, 286 Neb. 725, 838 N.W.2d 286 

(2013). The U.S. Supreme Court has said that an unconstitutional “denial of face-to-face confrontation,” like other types 

of violations of the Confrontation Clause, is subject to harmless error review. Coy v. Iowa, 487 U.S. 1012, 1021, 108 S. Ct. 

2798, 101 L. Ed. 2d 857 (1988).
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[11,12] Where the trial error is of a constitutional dimension, 

the burden must be on the beneficiary of the error to prove 

beyond a reasonable doubt that the error did not contribute 

to the verdict obtained. State v. Leibel, supra. This standard 

applies equally to jury and bench trials. Id. Whether error is 

harmless in a particular case depends “‘upon a host of factors,’” and we find the fact of a bench trial a proper consideration in conducting our harmless error review. Id. at 740, 838 

N.W.2d at 298. Harmless error review ultimately 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 would surely have been rendered, but, rather, 

whether the actual guilty verdict rendered in the questioned 

trial was surely unattributable to the error. Id. As outlined 

below, we find the error in this case to be harmless.

In our harmless error review in this case, we consider 

whether Smith’s convictions were surely unattributable to 

R.F.’s in camera testimony outside Smith’s presence. If this 

were a jury trial, it would be challenging for an appellate 

court to say that a conviction for sexual assault was surely 

unattributable to the alleged victim’s testimony. However, in 

this case, there was a bench trial and we have the benefit of 

the court’s order which set forth in detail the reasoning behind 

the court’s finding of guilt beyond a reasonable doubt. In that 

order, the court specifically stated that R.F.’s testimony, standing alone, would not support conviction beyond a reasonable 

doubt and the court described her testimony as “troubling” and 

“inconsistent.” Instead, the court relied mainly on Rochelle’s 

testimony to establish the elements of the offenses and it characterized R.F.’s testimony as merely helpful to the extent it 

corroborated portions of Rochelle’s testimony. The court also 

cited Solky’s testimony regarding Smith’s statements in jail as 

an important factor in its verdicts.

We think that the court’s order makes clear that the error in 

hearing R.F.’s testimony outside Smith’s presence was harmless error in at least two respects. First, the court relied on 
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evidence other than R.F.’s testimony and R.F.’s testimony 

was helpful only to the extent it corroborated other evidence. 

Second, despite Smith’s absence at the time of R.F.’s testimony, the presence of other “elements” of the right of confrontation, particularly cross-examination by defense counsel, was 

sufficient to call the credibility of R.F.’s testimony into doubt; 

this is evidenced by the court’s limited reliance on her testimony and the court’s explicit statement that R.F.’s testimony 

alone would not have supported conviction.

Given the court’s order and the record, we determine that 

the court’s verdicts were surely unattributable to R.F.’s testimony and more specifically that they were surely unattributable to R.F.’s testimony that was given outside Smith’s presence in violation of his right of confrontation. We therefore 

conclude that although the court erred by allowing R.F. to 

testify outside Smith’s presence without following constitutional requirements to protect Smith’s right of confrontation, 

such error was harmless error and does not require reversal of 

Smith’s convictions.

Smith’s Claims of Ineffective Assistance of Counsel 

Cannot Be Reviewed on Direct Appeal but Are 

Stated With Sufficient Particularity to Be 

Preserved for Postconviction Review.

[13] Smith next claims that his trial counsel provided ineffective assistance in various respects. 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. State v. Golyar, 301 Neb. 488, 919 N.W.2d 

133 (2018). Smith has different counsel on appeal, and Smith 

specifically claims that his trial counsel provided ineffective 

assistance when counsel (1) failed to call witnesses that Smith 

had informed counsel he wanted to testify, (2) failed to use 
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video recordings of prior interviews of R.F. to impeach her 

testimony, and (3) failed to use a video recording of a prior 

interview of Rochelle to impeach her testimony.

[14,15] 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. Id. The fact that an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. Id. The determining factor is whether the record is sufficient to adequately 

review the question. Id.

With regard to his claim that trial counsel failed to call 

witnesses, Smith states in his brief that the three persons trial 

counsel failed to call were named “Linda Mask, Verlon Mask, 

and Sherri Hopkins.” Brief for appellant at 15. He argues that 

the record on direct appeal is not sufficient to address this 

claim, because the record does not disclose what testimony the 

witnesses would have provided, nor does it disclose counsel’s 

reasons for failing to call the witnesses. Smith states that he 

raised the claim and named the potential witnesses in order to 

preserve the claim for postconviction review.

In response, the State notes that the record indicates that 

Smith might have intended to refer to “‘Linda Mast’” and 

“‘Verlon Mast,’” rather than “‘Linda Mask’” and “‘Verlon 

Mask.’” Brief for appellee at 14. However, the State agrees 

with Smith’s argument that the record on direct appeal is 

not sufficient to review the claim and that Smith sufficiently 

alleged the claim to preserve it for postconviction review.

Smith further claims that counsel failed to impeach the testimony of both R.F. and Rochelle by using video recordings 

of prior interviews that each witness had given. Smith argues 

that the record is not sufficient to review these claims on 

direct appeal because the full video recordings are not in the 
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record. The State concedes that each of these claims was sufficiently alleged by Smith, but the State argues that the record 

on direct appeal is sufficient to review each claim and that the 

record demonstrates that each claim is without merit. The State 

notes that Smith used statements from the prior interviews to 

impeach each of the witnesses and that each of the witnesses 

admitted to making the statements. However, Smith argues in 

reply that the record shows only the statements that trial counsel actually used to impeach the witnesses, but it does not show 

statements that could or should have been used to impeach the 

witnesses’ testimony.

We determine that with regard to his claim that trial counsel failed to call witnesses, Smith sufficiently identified three 

particular potential witnesses. We further determine that with 

regard to his claims that trial counsel failed to use prior interviews to impeach the testimony of witnesses, Smith identified 

two particular witnesses and the particular prior interviews of 

each witness. We conclude with respect to each of these three 

claims of ineffective assistance of trial counsel that the record 

on direct appeal is not sufficient to review the claim but that 

Smith alleged the claim with sufficient particularity to preserve 

the claim for postconviction review.

The Evidence Was Sufficient to 

Support Smith’s Convictions.

Smith next claims that there was not sufficient evidence to 

support his convictions. With respect to his conviction for first 

degree sexual assault of a child, Smith contends that there was 

no evidence that he had sexually penetrated R.F. With respect 

to his conviction for child abuse, Smith concedes that the 

testimony of R.F. and Rochelle could establish the elements 

of child abuse but he contends that the testimony was not 

credible. We conclude there was sufficient evidence to support 

both convictions.

One is guilty of first degree sexual assault of a child under 

§ 28-319.01(1)(b) “[w]hen he or she subjects another person 
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who is at least twelve years of age but less than sixteen years 

of age to sexual penetration and the actor is twenty-five years 

of age or older.” Smith does not dispute that there was sufficient evidence that R.F. was at least 12 but less than 16 years of 

age and that he was 25 years of age or older at the time of the 

alleged incident. But he contends that there was no evidence 

that he subjected R.F. to “sexual penetration” which is defined 

under Neb. Rev. Stat. § 28-318(6) (Reissue 2016) to include, 

inter alia, “any intrusion, however slight, of any part of the 

actor’s or victim’s body or any object manipulated by the actor 

into the genital or anal openings of the victim’s body.”

In this case, Rochelle testified that Smith touched R.F.’s 

vagina during the group encounter. When asked by the State 

to describe how Smith had touched R.F.’s vagina, Rochelle 

described Smith’s actions as “putting his hand on it,” “rubbing it,” and “fondling the top of it.” Upon further questioning, Rochelle testified that she had not seen Smith put his 

finger inside R.F.’s vagina, but when the State asked whether 

Smith had touched R.F. “between the skin folds known as the 

labia,” Rochelle replied, “Yes.” The State then asked how long 

Smith had touched R.F. “between the lips of her vagina,” and 

Rochelle replied that he had done so for “[m]aybe three to 

five seconds” and that she had seen him touch R.F. in this way 

“[j]ust once.”

Based on our precedent, we determine that evidence that 

Smith had touched R.F. “between the skin folds known as the 

labia” and “between the lips of her vagina” was sufficient to 

support a finding of sexual penetration. Interpreting the definition of “sexual penetration” quoted above, we have said:

The slightest intrusion into the genital opening is sufficient to constitute penetration, and such element may be 

proved by either direct or circumstantial evidence. It is 

not necessary that the vagina be entered or that the hymen 

be ruptured; the entry of the vulva or labia is sufficient.

State v. Archie, 273 Neb. 612, 642, 733 N.W.2d 513, 536 

(2007). See, also, State v. Kays, 21 Neb. App. 376, 838 N.W.2d 
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366 (2013), disapproved on other grounds, State v. Filholm, 

287 Neb. 763, 848 N.W.2d 571 (2014), and State v. Newman, 

21 Neb. App. 29, 838 N.W.2d 317 (2013). Rochelle’s testimony that Smith touched the “skin folds known as the labia” 

and “between the lips of her vagina” was sufficient to prove 

entry of the vulva or labia and therefore to support a finding 

of sexual penetration and a conviction for first degree sexual 

assault of a child.

One is guilty of child abuse under § 28-707(1) if

he or she knowingly, intentionally, or negligently causes 

or permits a minor child to be:

(a) Placed in a situation that endangers his or her life or 

physical or mental health; [or]

. . . .

(e) Placed in a situation to be sexually abused as 

defined in section 28-319, 28-319.01, or 28-320.01[.]

The offense is a Class IIIA felony under § 28-707(4) if the 

offense is committed knowingly and intentionally and does not 

result in serious bodily injury.

Evidence supporting the conviction for child abuse included 

Rochelle’s testimony that Smith brought R.F. into the group 

sexual encounter, wherein Smith subjected R.F. to sexual contact and sexual penetration and allowed Lauhead to subject 

R.F. to sexual penetration.

Smith does not argue that such testimony, if believed, would 

not support a finding that he had placed R.F. in a situation to be 

sexually abused. Instead, he attacks the credibility of Rochelle 

and argues that a fact finder could not have found her testimony believable.

As discussed above in connection with our harmless error 

analysis, the court in this bench trial made specific findings 

regarding the credibility and reliability of witnesses, including Rochelle. In reviewing a conviction for sufficiency of the 

evidence, we do not pass on the credibility of witnesses and 

instead we recognize that it is a matter for the fact finder. 

See State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018). 
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Viewing the evidence in this case in the light most favorable 

to the prosecution, we conclude that based on its witness 

credibility assessment, the court could have found the elements of felony child abuse had been proved beyond a reasonable doubt.

We conclude that there was sufficient evidence to support 

Smith’s convictions for first degree sexual assault of a child 

and felony child abuse.

District Court Did Not Abuse Its 

Discretion in Sentencing Smith.

Smith finally claims that the district court imposed excessive sentences. We find no abuse of discretion in the court’s 

sentencing of Smith.

Under § 28-319.01(2), first degree sexual assault of a child 

is a Class IB felony with a mandatory minimum sentence of 

15 years in prison for the first offense. Child abuse committed knowingly and intentionally that does not result in serious 

bodily injury is a Class IIIA felony under § 28-707(4). Under 

Neb. Rev. Stat. § 28-105(1) (Reissue 2016), a Class IB felony 

is punishable by imprisonment for a minimum of 20 years 

and a maximum of life, and a Class IIIA felony is punishable by imprisonment for a maximum of 3 years. Smith was 

sentenced to concurrent terms of imprisonment for 20 to 30 

years for first degree sexual assault of a child with a mandatory minimum sentence of 15 years and for 2 to 3 years for 

felony child abuse. Therefore, Smith’s sentences were within 

statutory limits and we review his sentencing for an abuse 

of discretion.

[16-18] Where a sentence imposed within the statutory 

limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as 

any applicable legal principles in determining the sentence to 

be imposed. State v. Mueller, supra. In determining a sentence 

to be imposed, relevant factors customarily considered and 
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Cite as 302 Neb. 154

applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) 

past criminal record or record of law-abiding conduct, and 

(6) motivation for the offense, as well as (7) the nature of the 

offense and (8) the amount of violence involved in the commission of the crime. Id. The appropriateness of a sentence is 

necessarily a subjective judgment and includes the sentencing 

judge’s observation of the defendant’s demeanor and attitude 

and all the facts and circumstances surrounding the defendant’s 

life. Id.

Smith focuses mainly on the sentence for first degree sexual assault of a child and contends that given certain factors, 

imprisonment for a term of 15 to 20 years would have been 

a more appropriate sentence than the term of 20 to 30 years 

that was imposed. Smith asserts that certain factors mitigate 

for a lesser sentence including that he is “an extremely low 

risk individual,” see brief for appellant at 32; his criminal 

history was minimal; he has no substance abuse issue; an 

evaluation showed that he was not violent and did not meet 

the criteria to be classified as a pedophile; and he is an honorably discharged veteran who was disabled because of a 

combat injury.

As Smith acknowledges, at the sentencing hearing, the court 

stated that it had considered the results of testing that had been 

done as part of a presentence evaluation, as well as Smith’s 

lack of a criminal record, his military service, and his disability. But the court stated it had also considered that Smith had 

sexually assaulted a person who the record indicates was disabled and that he had continued to deny responsibility. Given 

that the court considered the factors urged by Smith, that the 

record does not show the court considered improper factors, 

and that the offense carried a potential maximum sentence 

of imprisonment for life, we cannot say that the sentence of 

imprisonment for 20 to 30 years was an abuse of discretion. 

We determine that the district court did not abuse its discretion 

in sentencing Smith.
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CONCLUSION

We conclude that the district court’s decision to hear R.F.’s 

testimony outside Smith’s presence did not comport with constitutional requirements to protect Smith’s right of confrontation; however, in this bench trial, given the court’s order 

detailing its findings, the error was harmless error and does not 

require reversal of Smith’s convictions. We further conclude 

that the record on direct appeal is not sufficient to review 

Smith’s claims of ineffective assistance of trial counsel but that 

Smith alleged the claims with sufficient particularity to preserve the claims for postconviction review. We finally conclude 

that there was sufficient evidence to support Smith’s convictions and that the district court did not abuse its discretion in 

sentencing Smith. We therefore affirm Smith’s convictions and 

sentences for first degree sexual assault of a child and felony 

child abuse.

Affirmed.