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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. COOK

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

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

STATE OF NEBRASKA, APPELLEE,

V.

CHELSEY COOK, APPELLANT.

Filed August 22, 2017. No. A-16-923.

Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge.

Affirmed.

Thomas C. Riley, Douglas County Public Defender, and Zoë R. Wade for appellant.

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

MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.

ARTERBURN, Judge.

I. INTRODUCTION

Following a bench trial, the district court found Chelsey Cook guilty of child abuse 

resulting in death. On appeal, Cook argues there was insufficient evidence to support her 

conviction and that she received ineffective assistance of counsel. For the reasons set forth below, 

we affirm.

II. BACKGROUND

On December 30, 2014, Lakisha Morrow and Cook executed a notarized agreement, 

wherein Morrow agreed to relinquish her parental rights to her three year old daughter, Alicia. 

Cook agreed to assume the parental rights of Alicia for purposes of adoption. From the time of the 

executed agreement until Alicia’s death, Cook represented Alicia to be her daughter. In addition 
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to Alicia, Cook cared for her two year old biological son, T.W. At the time of the incident, Cook 

was 24 years old, a high school graduate, and had some beauty school training.

Detective Thomas Queen testified at trial regarding the state of 3025 Franklin Street 

residence the evening Alicia was discovered. Detective Queen testified that the inside of the 

residence was as cold as the outdoor temperature, 32 degrees. Detective Queen testified that the 

first floor of the residence was sparsely furnished. The living room contained a sectional, a 

disassembled table, television, television stand, and some DVDs. The dining room was completely 

unfurnished. The kitchen cupboards and cabinets were completely empty. However, Detective 

Queen testified that there were some fast food wrappers and uneaten food in a trash bag in the 

kitchen and there were some packages of ramen noodles on the kitchen counter. Otherwise, the 

kitchen was empty. The second floor of the residence had four bedrooms. Three of the bedrooms 

were completely unfurnished. One bedroom had a mattress and box spring leaning against one of 

the walls and a space heater in the room. There were no other auxiliary heaters on the second floor.

Detective Wendi Dye testified as to Cook’s description of the events leading up to Alicia’s 

death. Detective Dye began by asking Cook biographical information. Cook had worked at 

Walgreens since July 2015. She stated that she worked the night shift from 10 p.m. until 8 a.m. 

She worked a one-week on, one-week off shift. Cook stated that she had two children, T.W. and 

Alicia. She stated that the last time Cook had seen Alicia’s biological mother was the day after 

Easter in 2015. Cook informed Detective Dye that Lakisha Morrow had executed a notarized 

document giving custody of Alicia to Cook. Cook stated that she had lived at 3025 Franklin Street 

for approximately two years. Her grandparents owned the home and allowed her and the children 

to live there rent free. Cook had enrolled Alicia in a Head Start program at Kennedy Elementary 

beginning in October 2015. Cook had an overnight childcare provider for the children while she 

was at work. Cook received state aid for childcare expenses for both Alicia and T.W.

Detective Dye then began asking Cook about the circumstances that precipitated Alicia’s 

death. Cook informed Detective Dye that between 9 a.m. and noon on January 2, 2016, Cook, 

T.W., and Alicia were reading books. Cook wanted Alicia to write her name, but Alicia refused. 

Cook stated that “until she figured it out, good-bye.” Cook stated that she did not want to speak 

with Alicia and Alicia did not want to speak with her. Alicia went to another bedroom, located 

nearest to the attic.

Later on during the day, Cook sent T.W. to ask if Alicia wanted anything to eat. Cook 

stated that her son told her Alicia had refused food. Cook stated that Alicia had not eaten anything 

that day and had drank only a little bit of water. Cook and her son spent the rest of the day in the 

bedroom that was furnished with a mattress and space heater. Cook stated she had no contact with 

Alicia between sending her from the bedroom that morning until falling asleep. She testified that 

she fell asleep at approximately 6 p.m. with her son present. Cook stated she woke up at 

approximately 12:44 a.m. on January. She stated she went to the restroom and noticed the house 

was very cold. When she returned to the room where she and T.W. had been sleeping, she noticed 

that Alicia was not there. Cook informed Detective Dye that the pilot light in the furnace had a 

tendency to go out, requiring her to relight it. She stated that when the pilot light went out, the 

furnace would blow cold air and the house would get as cold as the outside temperature. Cook kept 

a space heater operating in the bedroom where she and T.W. had been sleeping, however.
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Cook searched for Alicia and found her in the bedroom next to the attic. Alicia was not 

wearing any clothes. According to Cook, it was not uncommon for her children not to wear clothes. 

She stated that she does not believe that clothes keep people warm. She stated that upon finding 

Alicia she noted that Alicia was not speaking. Cook knew that she was alive because she was 

blinking her eyes. Cook told Alicia to get up, but Alicia was stumbling and falling when she 

attempted to get up. Alicia also made a moaning sound. Cook told Alicia that “this was not a joke”

and then picked her up and brought her into the bedroom with the space heater. Cook tried to wake 

Alicia up in this room, but was unsuccessful. Cook thought Alicia might have been thirsty, and 

attempted to give her some soda to drink. She poured the soda into Alicia’s mouth and observed it 

come out of Alicia’s nose. Cook then moved Alicia closer to the space heater in the bedroom and 

began rubbing her to try and warm her up. Cook described Alicia as freezing to the touch. Cook 

wrapped Alicia in a blanket and thought she was getting warmer. At that point, Cook stated that 

she was scared so she went into another bedroom with her Bible and prayed for Alicia to get better.

Shortly thereafter, Cook stated that T.W. started to wake up, so she took him downstairs 

and made him a pizza. Cook checked on Alicia while the pizza was cooking and stated that she 

could hear a heartbeat and see that Alicia was still breathing. Cook then went to the basement to 

light the pilot light on the furnace. While downstairs, Cook read T.W. a book and put him back to 

sleep on the living room sofa. Cook then went to the back upstairs bedroom to check on Alicia. 

Cook stated that Alicia’s chest was not moving when she returned. Cook believed that she felt a 

heartbeat, so she went into another bedroom to pray. Cook returned to the room Alicia was 

occupying and noticed her arm had moved. Cook thought this meant that Alicia was fine, so she 

went to the other bedroom to pray more. Cook returned once more and listened for Alicia’s

heartbeat. Cook stated that this time Alicia’s heartbeat sounded faint. Cook realized that she was 

not hearing Alicia’s heartbeat, but was hearing her own heartbeat. Cook stated that she realized 

Alicia was deceased at approximately 1:30 a.m.

Cook left Alicia in the bedroom and went downstairs. Cook stated she laid awake next to 

her son for hours. Cook stated that she did not do anything until 8 a.m. At that time, Cook was 

afraid that T.W. would see Alicia’s body or that the body would start to smell. Cook wrapped 

Alicia in a plastic bag that was covering the mattress, along with the blanket that was covering her. 

Cook carried Alicia downstairs and placed her in the closet beneath the stairs where she would 

remain until paramedics arrived on the scene two days later. Cook told Detective Dye that she did 

not call 911 because she thought Alicia would “come back.” She also stated that she knew she had 

a warrant for driving under suspension. She was afraid that if Alicia was taken to the hospital the 

authorities would arrest her and T.W. would be placed in foster care.

After placing Alicia’s body in the basement, Cook stated that on January 3, 2016, at 

approximately 9 a.m. she and T.W. went to the gas station. They then went to attend church 

services at two separate churches. Cook stated that she went to church to “get the word.” Cook 

stated that after the service at the second church, she went with Stella Cooper to Walgreens and 

then to Cooper’s home. Cooper asked where Alicia was, and Cook responded that she was with a 

friend. Cook had dinner with Cooper and then went to the home of her grandmother, Charlie Miles. 

Cook and T.W. stayed the night at Miles’ home.
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On January 4, 2016, Cook woke up and Miles asked where Alicia was, Cook told her she 

was with a friend. Cook stayed at Miles’ home with T.W. until the night of January 4, 2016. At 

approximately 9:40 p.m. Cook dropped T.W. off at daycare. The daycare provider also asked 

where Alicia was. Cook responded that someone else would be taking care of her from then on. 

Cook then worked her night shift that evening.

On the morning of January 5, 2016, Cook picked up T.W. from childcare and went to 

Miles’ home. Later that morning, Cook spoke to her mother, Delena Winston, by telephone. 

Winston lived in Chicago. Cook asked her to come to Omaha because she needed to speak with 

her. Winston agreed to come to Omaha. Cook’s brother, Anthony Orr, came over to Miles’ home 

and took Cook and T.W. to the library from approximately 11 a.m. until 1 p.m., where Cook 

utilized her Facebook account. Orr asked where Alicia was. Cook stated she was with a friend. 

After leaving the library with Orr, Cook went to a beauty supply store and then to a Baker’s 

supermarket. Cook then went to Orr’s house in Millard where she and T.W. took a nap. At 

approximately 8:30 p.m. Cook’s brother woke her up and informed her that their mother was in 

town. They proceeded to Miles’ home, where Winston, Miles, and Cook’s father, Kevin Cook, 

were gathered.

At that time Cook told the gathered individuals that Alicia was still at the Franklin Street 

home. Cook informed them that Alicia was dead. Orr, Kevin Cook, and Cook drove to the Franklin 

Street home where Kevin Cook kicked in the door. Cook informed her father that Alicia was in 

the closet under the stairs. Orr and Kevin Cook discovered Alicia and Orr called 911.

Paramedics and police officers responded to the 911 call. Paramedics discovered the body 

of four year old Alicia in a storage area underneath the stairs leading to the basement. Alicia’s 

body was wrapped in a blanket and plastic mattress bag. Alicia was discovered naked with the 

exception of wearing a pair of ankle socks. An autopsy was performed on January 6, 2016. The 

pathologist, Dr. Michelle Elieff, concluded that Alicia had died as a result of hypothermia.

At trial the State called numerous family members and acquaintances of Cook, a 

paramedic, police officers, forensic technicians, and three medical doctors. Cook called one 

medical doctor to testify in her defense. The paramedic and police officers’ testimony revolved 

around the factual background and investigation detailed above. Additionally, numerous detectives 

testified that the house was as cold as the outdoor temperature. Detective Queen had a furnace 

technician come to the scene to fix and assess the furnace. The furnace technician stated the furnace 

was a relic, but it had been serviced in November 2015.

The family members and acquaintances of Cook testified about Cook’s parenting abilities 

and their interactions with Cook and her children. No witness testified that they had ever seen 

Cook strike either of the children. With one exception, no witness testified that they believed Cook 

neglected or deprived the children of necessities. One witness, Tyesha Brown, did express concern 

regarding Cook’s children not having appropriate winter clothing. Brown, whose son’s biological 

father was also T.W.’s father, stated that the children’s paternal grandparents had to buy winter 

coats for Cook’s children. Otherwise, the witnesses testified that Cook and her children were 

generally happy.
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Dr. Jamie Drake, a pediatrician at Children’s Hospital, testified that she saw Alicia once in 

April 2015 for a well-child visit. Dr. Drake stated that Alicia appeared to be a healthy three year 

old at the time of the visit. Dr. Drake noted no injuries or particular causes for concern.

Dr. Michelle Elieff, a forensic pathologist, testified regarding the autopsy performed on 

Alicia. Dr. Elieff detailed her autopsy procedure. She described several irregular scars on Alicia’s 

torso, buttocks, and thighs. Dr. Elieff was concerned that these scars were from past inflicted 

injuries. However, Dr. Elieff testified that none of the scars or more recent injuries were the cause 

of Alicia’s death. Additionally, Dr. Elieff was unable to determine the time period in which the 

injuries, and resulting scars, would have been incurred.

After performing the external examination, Dr. Elieff proceeded to draw fluids from the 

body in order to perform toxicology analyses. The toxicology results were negative for any agent 

that would have resulted in death. Then, Dr. Elieff systematically removed each organ in order to 

examine it for any injury, disease, or congenital abnormality. Dr. Elieff testified that she did not 

discover evidence of any congenital disorder, any disease, or injury that would have caused death. 

Finally, Dr. Elieff performed x rays of the body and microscopic examination of tissue samples, 

both of which did not indicate any irregularities. Based on Dr. Eleiff’s autopsy, she was able to 

determine with a reasonable degree of medical certainty that Alicia’s cause of death was 

hypothermia.

Dr. Elieff described hypothermia as a medical condition that can result in death. Dr. Elieff 

testified that hypothermia involves the lowering of the body temperature such that the cells, organs, 

and tissues of the body lose their ability to respond. She testified that hypothermia can result from 

temperatures that are not necessarily freezing. Hypothermia varies from person to person based on 

a number of factors, including, body size, nutrition, any underlying medical condition, the amount 

and nature of the clothing they are wearing, whether they are damp, whether it is drafty, and 

whether there is immersion in water. Dr. Elieff testified that a person can succumb to hypothermia 

in temperatures under 50 degrees. She testified that the time it takes for a person to succumb to 

hypothermia depends on how cold the actual temperature gets and the duration of time a person is 

exposed to that temperature in combination with the personal variations listed previously. Dr. 

Elieff testified that young people are more susceptible to hypothermia because their surface 

volume to weight makes them more affected by changes in temperature extremes. Dr. Elieff 

testified that hypothermia initially presents in a person as a gradual slowing down of the body. The 

person may become confused and not be able to respond to commands or questions. A person may 

stumble around and not respond to their environmental surroundings. Dr. Elieff testified that 

hypothermia progresses in stages. After the initial confusion stage, a person may not be able to 

drink or breathe properly. A person may not be able to urinate. Their body temperature, pulse, and 

blood pressure lower. Dr. Elieff stated that as time passes, the symptoms become more severe.

Dr. Elieff testified that hypothermia is treatable, as well as preventable. She testified that 

it can be prevented through adequate clothing, shelter, and proper nutrition. Dr. Elieff testified that 

a reasonable layperson witnessing the symptoms of hypothermia stated above would be able to 

determine that emergency medical treatment was needed for that individual. She testified that the 

earlier hypothermia is treated, the more likely a person is to survive. She testified that the type of 

treatment administered is dependent on the stage. In the early stages, a person is monitored and 
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treated with electrochemicals. As the stages progress, a person will require intravenous fluids and 

close monitoring by medical professionals.

On cross-examination, Dr. Elieff was questioned about whether a person without medical 

training, and limited education, could recognize the symptoms of hypothermia. Dr. Elieff testified 

that a person without medical training should recognize the symptoms as needing to be treated by 

a medical professional. Dr. Elieff also stated that children have been able to call 911 when they 

have recognized that a person was in distress.

The final medical expert called by the State was Dr. Suzanne Haney. Dr. Haney is 

employed at Children’s Hospital and Project Harmony as a child abuse pediatrician and medical 

director of the children’s advocacy team. Dr. Haney is board-certified in pediatrics and child abuse 

pediatrics. Dr. Haney testified that she has personally treated patients with hypothermia. Dr. Haney 

testified that she had treated five to six cases of hypothermia and all of the patients had survived. 

The most recent case Dr. Haney treated had presented comatose and nearly unresponsive.

Dr. Haney described the symptoms and treatment of hypothermia very similarly to Dr. 

Elieff. Dr. Haney testified that hypothermia progresses in stages and that the earlier the treatment, 

the more likely a patient is to survive. Dr. Haney testified that the symptoms of hypothermia should 

alert a reasonable person that something is wrong with the person suffering from the symptoms. 

Dr. Haney testified that a reasonable person would seek medical care for a person they observed 

suffering from the hypothermia-like symptoms.

Dr. Haney testified that she reviewed literature regarding hypothermia in children and its 

treatability. Dr. Haney testified that the literature demonstrates that hypothermia in children is very 

treatable. Dr. Haney reviewed multiple cases of children that were unresponsive or even without 

a heartbeat for hours who were completely resuscitated. When posed a hypothetical with the facts 

of this case, Dr. Haney testified that if the child received immediate medical care, the child’s 

chance of survival would be “very, very good.” Dr. Haney testified that unless there was some 

other condition, there was a “90, 95 or more percent chance of survival.”

On cross-examination, Cook’s counsel questioned Dr. Haney regarding the verbiage of her 

report. Dr. Haney testified that her report stated “it is distinctly possible that had [Cook] sought 

care at that time Alicia would have survived.” When Cook questioned Dr. Haney regarding the 

difference between a 95 percent probability and a distinct possibility of survival, Dr. Haney 

testified that the percentage was consistent with her written report. Cook also questioned Dr. 

Haney’s opinion given to Detective Dye prior to trial about whether Alicia would have survived. 

Dr. Haney testified that the opinion given to Detective Dye was based on the information presented 

to her at that time. On re-direct examination, Dr. Haney testified that her intent as to Alicia’s 

probability was the same in her written report as her testimony of 90 to 95 percent probability of 

survival.

The only witness called by Cook was Dr. Richard Forsman. Dr. Forsman has practiced as 

a doctor of internal medicine since 1970. Dr. Forsman reviewed the autopsy report prepared by 

Dr. Elieff and the report prepared by Dr. Haney. Dr. Forsman initially testified that no doctor could 

state with a reasonable degree of medical certainty that a child under Alicia’s circumstances that 

night could have survived if she received prompt medical attention that early morning.
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On cross-examination, Dr. Forsman conceded that he had never treated a person with 

hypothermia, he was not familiar with the stages of hypothermia, and he had not reviewed the 

research regarding the successful treatment of hypothermia. Dr. Forsman also testified that a 

layperson observing Alicia’s described symptoms that early morning would be able to determine 

that she needed medical assistance. On re-direct examination, Dr. Forsman testified that based on 

Alicia’s circumstances described to him, that even if she had received medical care, he believed 

that Alicia’s probability of survival “was not very good.” On re-cross examination, Dr. Forsman 

again testified that he was not familiar with the stages of hypothermia, had not done any research 

on hypothermia, had not read the police reports associated with the case, and had not read Cook’s 

statements about the circumstances surrounding Alicia’s death.

After the close of evidence, the district court found Cook guilty of intentional child abuse 

resulting in death. Prior to the announcement of its verdict, the district court stated that the autopsy 

photographs received into evidence depicting the exterior of Alicia’s body were considered only 

for the limited purpose of ruling out alternative causes of death, as testified by the pathologist, and 

for no other reason. The district court also stated that Cook’s statements to law enforcement 

officers were made freely and voluntarily. The district court enunciated some of its reasoning for 

the decision, including “The defendant’s failure to monitor the health and well-being of Alicia 

[M.] under the circumstances was done knowingly and intentionally and was the proximate cause 

of Alicia [M.’s] hypothermia, and eventually, her death.

After trial, Cook filed a motion for a new trial on July 20, 2016. The district court overruled 

the motion in an order filed on August 8, 2016. Cook then filed the instant appeal.

III. ASSIGNMENTS OF ERROR

Cook asserts that the district court erred in finding the evidence sufficient to support a 

guilty verdict beyond a reasonable doubt. She further alleges that her trial counsel was ineffective.

IV. STANDARD OF REVIEW

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. McCurry, 296 Neb. 40, 891 N.W.2d 663 

(2017). An appellate court does not resolve conflicts in the evidence, pass on the credibility of 

witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact 

finder’s province for disposition. State v. Jenkins, 294 Neb. 475, 883 N.W.2d 351 (2016).

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

appeal is a question of law. State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017). In reviewing 

claims of ineffective assistance of counsel on direct appeal, an appellate court decides only 

questions of law: Are the undisputed facts contained within the record 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.
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V. ANALYSIS

1. SUFFICIENCY OF EVIDENCE

Cook was convicted of a violation of Neb. Rev. Stat. § 28-707 (Reissue 2016), which 

provides that a person is guilty of child abuse if he or she knowingly, intentionally, or negligently 

causes or permits a minor child to be placed in a situation that endangers his or her life or physical 

or mental health or to be deprived of necessary food, clothing, shelter, or care. Subsection (6) of 

the statute provides that child abuse is a Class IB felony “if the offense is committed knowingly 

and intentionally and results in the death of such child.” Id. Child abuse resulting in death requires 

proof of the defendant’s intent to commit child abuse, as defined in Neb. Rev. Stat. § 28-707, but 

it does not require proof that the defendant intended to kill the minor child. State v. Molina, 271 

Neb. 488, 713 N.W.2d 412 (2006).

Cook argues that her conviction was not supported by relevant evidence because the district 

court explicitly found that Cook’s actions prior to 12:45 a.m. were the proximate cause of her 

death. Cook argues that the State’s theory of the case revolved around Cook’s actions after she 

discovered Alicia at 12:45 a.m., and thus, there was insufficient evidence for the district court to 

find Cook guilty based on its explicit findings. She further asserts that the furnace blowing out in 

the night was an intervening cause and the proximate cause of Alicia’s death. We disagree.

As stated above, when a defendant argues that there was insufficient evidence to support a 

conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of 

witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact 

finder’s province for disposition. This standard is applied to both jury and bench trials. Cook urges 

this court to evaluate only the rationale enunciated by the district court in reaching its decision. 

However, the district court, as any fact finder in a criminal case, was not required to set forth all 

or any of its reasoning in reaching its decision. Cook has pointed out no case law which would 

require us to deviate from the standard of review that is given to all verdicts in criminal cases. We 

must determine, viewing all of the evidence in the light most favorable to the prosecution, whether 

any rational trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt.

The evidence demonstrates that sometime between the hours of 9 a.m. and 12 p.m. on 

January 2, 2016, Cook, T.W., and Alicia were reading books. Cook wanted Alicia to write her 

name, but Alicia refused. Cook stated that “until she figured it out, good-bye.” Cook stated that 

she did not want to speak with Alicia and Alicia did not want to speak with her. Alicia went to an 

empty bedroom, located nearest to the attic. Later on during the day, Cook sent her two year old 

son to ask if Alicia wanted anything to eat. Cook stated that T.W. told her Alicia had refused food. 

Cook stated that Alicia had not eaten anything that day and had drank only a little bit of water. 

Cook and T.W. spent the rest of the day in the bedroom they had occupied for most of the day. 

Cook stated she fell asleep at approximately 6 p.m. with her son.

Cook, by her own statements, did not personally check on Alicia for at least six hours, and 

up to nine hours, before going to sleep. Alicia did not have any clothes on with the exception of 

her anklet socks. She had not eaten anything. Cook knew that the pilot light in the furnace had a 

history of blowing out, causing the house to be as cold as the outside temperature.
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According to Cook’s own statement, she had no personal contact with Alicia until 12:45 

a.m. the next morning when she discovered Alicia essentially naked in the room nearest the attic. 

Cook admitted that Alicia was not wearing any clothes, a condition that was not unusual in her 

household. She stated that Alicia was not speaking, but that Cook knew that she was alive because 

she was blinking. Cook told Alicia to get up. After noting that Alicia could not walk on her own, 

Cook picked Alicia up and brought her into the room with the space heater. Cook tried to wake 

Alicia up in this room, but was unsuccessful. Cook thought Alicia might have been thirsty, so she 

tried to give her some soda to drink. Cook stated the soda came out of Alicia’s nose. Cook then 

moved Alicia in front of the space heater in the room and began rubbing her to try and warm her 

up. Cook described Alicia as freezing to the touch. Cook wrapped Alicia in a blanket and believed 

she was getting warmer.

At this point, Cook was scared and left Alicia in the room. When T.W. began to wake up, 

Cook took him to the first floor of the house, cooked him a pizza, and thereafter re-lit the pilot 

light in the furnace. She checked on Alicia while the pizza was cooking and then again after the 

pilot light was re-lit. Drs. Elieff, Haney, and Forsman testified that a reasonable person would have 

sought medical attention if they observed the symptoms Alicia was displaying. Cook did not seek 

medical attention for Alicia. Cook stated that she did not have an operating cell phone or vehicle. 

She also stated that she was worried that if she took Alicia to the hospital, she would be arrested 

on a warrant and T.W. would be placed in foster care. Her concerns for herself and T.W. clearly 

outweighed her concerns for Alicia’s health. Dr. Haney testified based on Alicia’s symptoms that 

there was a 90 to 95 percent chance that Alicia would have survived if Cook had sought medical 

care. Cook did not seek medical care. After Cook realized that Alicia had died, she wrapped her 

in the blanket and plastic mattress covering and put her in a closet underneath the stairs. Cook then 

carried on her life as normal for two more days.

Viewing the evidence in the light most favorable to the prosecution, any rational finder of 

fact could have determined that Cook intentionally deprived Alicia of necessary clothing, shelter, 

or care, which resulted in her death. We find that the district court did not err by finding sufficient 

evidence to determine Cook committed the elements of the charged crime beyond a reasonable 

doubt.

2. INEFFECTIVE ASSISTANCE OF COUNSEL

Cook argues that her trial counsel’s performance fell below the standard of a reasonable 

attorney under the same circumstances because trial counsel failed to raise proper evidentiary 

objections, “opened the door” to damaging testimony that otherwise would not have been adduced, 

failed to educate himself and effectively cross-examine the State’s expert witness, and retained an 

improper expert witness with no relevant experience to the facts of the case. We disagree.

To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel’s 

performance was deficient and that this deficient performance actually prejudiced his or her 

defense. State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016). The two prongs of this test may be 

addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong 

presumption that counsel’s actions were reasonable. Id. The prejudice prong of the ineffective 
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assistance of counsel test requires that the defendant show a reasonable probability that but for 

counsel’s deficient performance, the result of the proceeding in question would have been 

different. State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017). Cook is represented on direct 

appeal by different counsel than the counsel who represented her at trial. When a defendant’s trial 

counsel is different from his or her counsel on direct appeal, the defendant must raise on direct 

appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is 

apparent from the record. State v. Ash, supra. Otherwise, the issue will be procedurally barred. Id.

An ineffective assistance of counsel claim is raised on direct appeal when allegations of deficient 

performance are made 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) district court later reviewing a 

petition for postconviction relief to be able to recognize whether the claim was brought before the 

appellate court. Id.

(a) Evidentiary Issues

Cook argues that her trial counsel’s performance was deficient and this deficiency resulted 

in prejudice because trial counsel failed to object to prejudicial evidence and trial counsel “opened 

the door” to prejudicial evidence with his examination of witnesses. Specifically, Cook argues that 

trial counsel failed to object to improper character testimony from Mack with regard to the care of 

Alicia, object to testimony regarding previous injuries on Alicia’s body that posited an inference 

of physical abuse, and opened the door to testimony about Alicia’s school attendance, Cook’s 

receipt of welfare, and whether Cook placed the children in car seats.

In a bench trial of a law action, including a criminal case tried without a jury, erroneous 

admission of evidence is not reversible error if other relevant evidence, admitted without objection 

or properly admitted over objection, sustains the trial court’s factual findings necessary for the 

judgment or decision reviewed; therefore, an appellant must show that the trial court actually made 

a factual determination, or otherwise resolved a factual issue or question, through the use of 

erroneously admitted evidence in a case tried without a jury. State v. Thompson, 278 Neb. 320, 

770 N.W.2d 598 (2009). There is no indication that the district court relied upon any of the 

evidence alleged to have been received due to trial counsel’s ineffective performance in 

determining its verdict. Likewise, there is no evidence that trial counsel’s performance as to 

evidentiary matters prejudiced Cook. As for Cook’s argument that trial counsel’s failure to object 

to the implication of past inflicted injuries on Alicia’s body, the district court explicitly stated the 

autopsy photographs received into evidence depicting the exterior of Alicia’s body were 

considered only for the limited purpose of ruling out alternative causes of death, as testified by the 

pathologist, and for no other reason. Therefore, we find that Cook’s trial counsel’s performance 

with regard to evidentiary issues was not deficient. Even if we presumed that all of the complained 

of evidence was improperly received, erroneous admission of evidence is harmless error and does 

not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, 

supports the finding by the trier of fact. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
- 11 -

(b) Cross-Examination of Expert

Cook argues that her trial counsel was ineffective in failing to effectively cross-examine 

Dr. Haney regarding her opinion that Alicia most likely could have been saved if she received 

immediate medical care when Cook discovered her. Specifically, Cook argues that trial counsel 

was deficient in his examination of Dr. Haney because he focused on semantic differences between 

Dr. Haney’s testimony and Dr. Haney’s report. Additionally, Cook argues that trial counsel should 

have impeached Dr. Haney with her previous statements to Detective Dye before the preliminary 

hearing when Detective Dye asked Dr. Haney about Alicia’s chance of survival over the telephone. 

Finally, Cook argues that trial counsel’s cross-examination of Dr. Haney’s literature review and 

overall opinion was deficient.

We find that Cook’s arguments are without merit since she cannot demonstrate prejudice 

based on counsel’s allegedly deficient cross-examination. Even if Dr. Haney’s testimony that 

Alicia would most likely have been saved if she received immediate medical care when Cook 

discovered her were discarded, there was still sufficient evidence to support the district court’s 

verdict. The State presented sufficient evidence to satisfy all of the elements of the offense even 

disregarding the complained of opinion of Dr. Haney. Therefore, we find that Cook can 

demonstrate no prejudice by way of counsel’s allegedly deficient cross-examination.

(c) Remaining Assigned Errors

Cook concedes that her final two claims of ineffective assistance of counsel do not have a 

sufficient record on direct appeal. The record does not demonstrate whether trial counsel failed to 

depose Dr. Haney nor to what information a different defense expert well-versed regarding 

hypothermia would have testified to at a trial. Therefore, these claims cannot be resolved on direct 

appeal. See, State v. Loding, supra.

VI. CONCLUSION

We conclude the district court did not err by finding the evidence sufficient to support a 

guilty verdict beyond a reasonable doubt. We also conclude that Cook was not denied effective 

assistance of counsel for the claims which we have an adequate record to review.

AFFIRMED.