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State of Nebraska, appellee, v. 

Darryl Lierman, appellant.

___ N.W.2d ___

Filed March 20, 2020. No. S-18-402.

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility.

2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

3. Criminal Law: Judgments: Proof. An acquittal in a criminal case does 

not preclude the government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.

4. Criminal Law: Proof. The standard of proof in a criminal case is that 

the State must prove the charges against the defendant beyond a reasonable doubt.

5. Sexual Assault: Evidence. Evidence that a defendant committed an act 

of sexual assault is, by its very nature, prejudicial.

6. 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 the 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.

7. Judges: Recusal. A recusal motion is initially addressed to the discretion of the judge to whom the motion is directed.

Nebraska Supreme Court Online Library

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

05/22/2020 08:09 AM CDT
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8. Trial: Judges: Words and Phrases. An ex parte communication occurs 

when a judge communicates with any person concerning a pending or 

impending proceeding without notice to an adverse party.

9. Trial: Judges: Recusal. A judge who initiates or invites and receives 

an ex parte communication concerning a pending or impending proceeding must recuse himself or herself from the proceedings when a litigant 

requests such recusal.

10. Judges: Recusal. A judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances 

of the case would question the judge’s impartiality under an objective 

standard of reasonableness, even though no actual bias or prejudice 

was shown.

11. Judges: Recusal: Presumptions. A party alleging that a judge acted 

with bias or prejudice bears a heavy burden of overcoming the presumption of judicial impartiality.

12. 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.

13. Judgments: Words and Phrases. Abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

14. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

15. Effectiveness of Counsel: Appeal and Error. 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.

16. ____: ____. 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.

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

Error. In order to know whether the record is insufficient to address 

assertions on direct appeal that trial counsel was ineffective, appellate 

counsel must assign and argue deficiency with enough particularity (1) 

for an appellate court to make a determination of whether the claim can 

be decided upon the trial record and (2) for a district court later reviewing a petition for postconviction relief to be able to recognize whether 

the claim was brought before the appellate court.
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18. Effectiveness of Counsel: Proof: Appeal and Error. When a claim 

of ineffective assistance of trial counsel is raised in a direct appeal, the 

appellant is not required to allege prejudice; however, an appellant must 

make specific allegations of the conduct that he or she claims constitutes 

deficient performance by trial counsel.

Appeal from the District Court for Antelope County: Mark 

A. Johnson, Judge. Affirmed.

Bradley A. Ewalt, of Ewalt Law Office, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

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

and Papik, JJ.

Heavican, C.J.

I. INTRODUCTION

Darryl Lierman was convicted of multiple counts of sexual 

assault of a child and child abuse and was sentenced to a total 

term of 70 to 140 years’ imprisonment, with credit for 272 

days’ time served. The child in question was B.L., Lierman’s 

adopted daughter, who was born in January 2000. Lierman’s 

primary argument on appeal is that the district court erred in 

admitting evidence of prior sexual assault alleged to have been 

committed by Lierman against another adopted daughter, A.L., 

because Lierman was acquitted in that case. We affirm.

II. BACKGROUND

Lierman was charged by information with three counts of 

first degree sexual assault of a child, three counts of third 

degree sexual assault of a child, and four counts of child abuse. 

Though further details of these charges will be discussed in 

more detail below, it is sufficient to note here that B.L. alleged 

this sexual abuse began in approximately 2010. At that time, 

Lierman was on bond awaiting trial on charges that he sexually abused B.L.’s biological sister, A.L., who was another of 
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Lierman’s adopted daughters. Lierman was eventually acquitted by a jury of the charges involving A.L.

B.L.’s allegations first came to light on or about February 

12, 2015. On February 7, B.L. ingested an unknown number 

of pills in an attempted suicide and was taken to a hospital in 

Kearney, Nebraska. During a counseling session on February 

12, B.L. made statements suggesting that Lierman had been 

sexually abusing her. An interview at a child advocacy center 

was scheduled, at which time B.L. made further allegations 

against Lierman, including that he would make her model 

bras for him and that he would watch her while she was 

showering. B.L. was placed in foster care while the matter 

was investigated.

In July 2015, B.L. disclosed that from the ages of 12 to 14, 

she was subject to digital and penile penetration by Lierman 

on more than one occasion, primarily while at the family’s 

home in Neligh, Nebraska. Lierman was ultimately charged 

with the allegations set forth above. Various pretrial hearings 

were held, details of which will be noted below as relevant. 

After a jury trial, Lierman was found guilty of all charges. 

He appeals.

III. ASSIGNMENTS OF ERROR

On appeal, Lierman assigns that the district court erred 

in (1) allowing the State to present evidence of prior sexual 

assaults, where that evidence was in support of charges of 

sexual assault for which Lierman was ultimately acquitted, 

or where at least some of those assaults were alleged to have 

been committed by Lierman in other jurisdictions; (2) not 

admitting evidence that prior to her suicide attempt, B.L. was 

unhappy at home and at school and was using the home computer to access adult dating sites; (3) finding the evidence sufficient to convict Lierman; (4) not recusing itself; (5) imposing 

excessive sentences; and (6) not permitting Lierman to issue 

subpoenas duces tecum in order to obtain records through 

depositions. Lierman additionally assigns that his counsel was 

ineffective by not (1) calling certain witnesses, (2) utilizing 
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evidence of Lierman’s driving logs to form an alibi defense, 

(3) filing a motion in limine regarding the evidence to be 

sought about B.L.’s difficulties at school and general unhappiness, (4) objecting to the order in which the State presented its 

evidence, and (5) objecting to the State’s use of B.L.’s suicide 

attempts and ideations.

IV. ANALYSIS

1. Admissibility of Evidence

(a) Standard of Review

[1,2] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility. 1 Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, 

an appellate court reviews the admissibility of evidence for an 

abuse of discretion. 2

(b) Background

Prior to trial, the State filed a motion for a hearing to determine the admissibility of prior sexual assault evidence and an 

intent to offer additional evidence pursuant to Neb. Rev. Stat. 

§§ 27-404 and 27-414 (Reissue 2016). The State averred that 

it wished to use evidence that had previously been presented 

against Lierman in the case involving A.L.’s allegations.

At this hearing, the State introduced evidence generally comprising three categories: (1) evidence that had been 

offered against Lierman during A.L.’s trial in Antelope County, 

Nebraska, for which Lierman was acquitted; (2) evidence that 

was not offered in Antelope County either for reasons not clear 

from the record or because the events in question did not occur 

in Antelope County, but instead in Madison County, Nebraska, 

1 State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).

2 Id.
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or while Lierman was on the road with A.L; and (3) evidence 

of allegations by B.L. that did not occur in Antelope County, 

but instead in Madison County, or while Lierman was on the 

road with B.L.

A.L. testified that Lierman began sexually abusing her when 

she was approximately 10 years old, when the family lived in 

both Neligh and Tilden, Nebraska. A.L. testified that Lierman 

had, for the 2 or 3 years prior, sought “hip rubs” from A.L. 

and asked her to walk on his back. (There was testimony at 

trial that “hip rubs” and the children’s walking on Lierman’s 

back were a common occurrence for all of the children in the 

household and were apparently performed to relieve pain that 

Lierman suffered as a result of his over-the-road trucking job. 

The record shows that Lierman was obese, weighing approximately 500 pounds.)

The first sexual abuse occurred when A.L. was sleeping with 

Lierman and Lierman’s wife, Julie Lierman (the mother of the 

adopted children), in the couple’s bed. Early in the morning 

of this first occasion, A.L. was giving Lierman a hip rub and 

accidently rubbed his penis over his clothing. A.L. was told 

to stop and was sent to her own bed. But the next night, A.L. 

was again sleeping with Lierman and Julie in their bed, when 

Lierman told her to “do what [you] did last night.” At first 

A.L. thought Lierman meant a hip rub, but subsequently began 

rubbing his penis over his clothes, and Lierman did not tell her 

to stop.

Lierman eventually introduced A.L. to the “cowlick,” which 

involved Lierman’s licking A.L.’s vagina. A.L. testified that 

at the time, she and Lierman were watching television in the 

couple’s bedroom and Julie was not at home. The “cowlick” 

began after the family moved to Tilden.

A.L. also testified that Lierman began taking her on his 

multiday trucking routes and would engage in sexual activity with her in the sleeper portion of the semi-truck. On one 

such occasion in the truck, A.L. and Lierman were watching a 

movie and Lierman told A.L. to rub his penis, which A.L. did 
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over his clothing. Lierman then directed her to rub his penis 

under his clothing. In a second incident, A.L. was walking on 

Lierman’s back, when he rolled over and she accidentally hit 

his groin area, causing him pain. He then grabbed her, took 

off her pajamas, got on top of her, and penetrated her vagina 

with his penis. A.L. cried out that it hurt and screamed at him 

to stop, but Lierman placed a pillow over her head to muffle 

the screams. A.L. further testified that almost every time she 

went with Lierman in the truck, some type of sexual activity 

occurred, and that she was often asked to model underwear that 

he had brought along.

A.L. testified that after the family moved from Tilden to 

Neligh, she shared a room with another sister. The house was 

being remodeled, so Lierman and Julie’s bed was in the living 

room, and as a result, no sexual abuse took place during that 

time. But as soon as the remodel was finished, the sexual abuse 

resumed. The abuse usually began with a request that A.L. give 

Lierman a hip rub or back rub, and it occurred most evenings 

when Lierman was not on the road. A.L. also testified that she 

performed oral sex on Lierman and that Lierman used a purple 

sex toy on her on at least two occasions.

A.L. disclosed some of these events to Neligh school authorities on September 17, 2010, after speaking with the counselor 

about her concern that Lierman may have impregnated her. A 

search of the family’s home revealed bedding and a purple sex 

toy. DNA that included Lierman and A.L., but excluded Julie, 

was found on both items. (The DNA evidence was apparently 

either not available or not offered at the time of Lierman’s trial 

on A.L.’s allegations.)

Evidence of non-Antelope County incidents involving B.L. 

and Lierman was also offered. B.L.’s therapist testified that 

B.L. revealed to her that Lierman began sexually abusing her 

when she was approximately 10 years old, when the family 

lived in Meadow Grove, Nebraska, and while Lierman was 

out on bond for the charges he faced involving A.L. Similar to 

A.L., the abuse began with Lierman’s asking B.L. to massage 
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his penis. B.L. reported that Lierman assaulted her while she 

was with him on the road and that Lierman was “‘not right 

down there,’” meaning something was wrong with his penis. 

B.L. also reported that Lierman penetrated her with his penis 

and that it hurt.

Following this hearing, the court found that (1) the State was 

not barred by principles of collateral estoppel from introducing 

evidence regarding A.L., despite the fact that Lierman had been 

acquitted of those charges; (2) A.L.’s allegations were inextricably intertwined with B.L.’s allegations; and (3) the evidence 

the State sought to admit as to both A.L. and B.L. was conditionally admissible under §§ 27-404 and 27-414, subject to 

confirmation of factual similarities deemed relevant at trial.

(c) Analysis

In his first assignment of error, Lierman assigns that the 

district court erred in admitting A.L.’s allegations, because he 

was acquitted of those charges at trial. He contends that the 

principles of collateral estoppel prevent the State from offering 

evidence about charges for which he was acquitted. Lierman 

also asserts that by offering evidence regarding A.L.’s allegations, the State was attempting to convince the jury that he 

should have been found guilty in A.L.’s case and that it had an 

opportunity to correct that wrong.

We turn first to Lierman’s assertion that the U.S. Supreme 

Court’s decision in Ashe v. Swenson 3 precludes the admission 

of that evidence. In Ashe, the Court explained that in the context of collateral estoppel, “when an issue of ultimate fact has 

once been determined by a valid and final judgment, that issue 

cannot again be litigated between the same parties in any future 

lawsuit.” 4

[3] We find Lierman’s assertion to be without merit. While 

Ashe does speak to the issue of collateral estoppel in the 

criminal case, the Court expanded on that holding in Dowling 

3 Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970).

4 Id., 397 U.S. at 443.
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v. United States. 5 In Dowling, the Court noted that “an acquittal in a criminal case does not preclude the Government from 

relitigating an issue when it is presented in a subsequent action 

governed by a lower standard of proof.” 6

Section 27-414 provides:

(1) In a criminal case in which the accused is accused 

of an offense of sexual assault, evidence of the accused’s 

commission of another offense or offenses of sexual 

assault is admissible if there is clear and convincing evidence otherwise admissible under the Nebraska 

Evidence Rules that the accused committed the other 

offense or offenses. If admissible, such evidence may 

be considered for its bearing on any matter to which it 

is relevant.

(2) In a case in which the prosecution intends to offer 

evidence under this section, the prosecuting attorney shall 

disclose the evidence to the accused, including statements 

of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days 

before the scheduled date of trial or at such later time as 

the court may allow for good cause.

(3) Before admitting evidence of the accused’s commission of another offense or offenses of sexual assault 

under this section, the court shall conduct a hearing outside the presence of any jury. At the hearing, the rules of 

evidence shall apply and the court shall apply a section 

27-403 balancing and admit the evidence unless the risk 

of prejudice substantially outweighs the probative value 

of the evidence. In assessing the balancing, the court may 

consider any relevant factor such as (a) the probability 

that the other offense occurred, (b) the proximity in time 

and intervening circumstances of the other offenses, and 

(c) the similarity of the other acts to the crime charged.

5 Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668, 107 L. Ed. 2d 708 

(1990).

6 Id., 493 U.S. at 349.
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(4) This section shall not be construed to limit the 

admission or consideration of evidence under any other 

section of the Nebraska Evidence Rules.

Thus, under § 27-414, assuming that notice and hearing requirements are met and the evidence survives a moreprobative-than-prejudicial balancing test, evidence of prior 

sexual assaults are admissible if proved by clear and convincing evidence.

[4] The standard of proof in a criminal case is that the State 

must prove the charges against the defendant beyond a reasonable doubt, 7 a higher standard of proof. 8 Because the standard 

set forth as to the question of whether A.L.’s allegations were 

proved for purposes of § 27-414 is lower than the standard of 

proof the State was held to in prosecuting those allegations, 

the principles of collateral estoppel do not bar the admission 

of that evidence.

And we disagree with Lierman’s contention that the State 

did not prove A.L.’s allegations by clear and convincing evidence. A.L. testified to the truth of her allegations, and her 

testimony was at least partially corroborated by DNA testing and other physical evidence. Lierman attempted to attack 

A.L.’s credibility by pointing out inconsistencies and failed 

memory, but as the State noted, those inconsistencies are typical of a young adult remembering traumatic events that took 

place years ago.

While the fact that Lierman was acquitted does not affect 

the threshold admissibility of the evidence under § 27-414, 

it is relevant to the undue prejudice analysis conducted under 

§ 27-414 and Neb. Rev. Stat. § 27-403 (Reissue 2016). We 

held in State v. Kirksey,

 9 a case involving § 27-404, that a 

prior acquittal

7 See, U.S. Const. amend. XIV; In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 

25 L. Ed. 2d 368 (1970).

8 See, e.g., State v. Bigelow, 303 Neb. 729, 931 N.W.2d 842 (2019).

9 State v. Kirksey, 254 Neb. 162, 180, 575 N.W.2d 377, 390-91 (1998).
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does not, in and of itself, preclude admission of the facts 

underlying the charge as evidence of other bad acts when 

offered for one of the purposes specified in [§ 27-404(2)]. 

. . . However, the acquittal is a factor which the court 

must consider when weighing the probative value of the 

evidence against the potential for unfair prejudice under 

[§ 27-403].

[5] We turn to the balancing test set forth in §§ 27-414 and 

27-403. We first note that evidence that a defendant committed an act of sexual assault is, by its very nature, prejudicial 10:

The [§ 27-403] unfairly prejudicial analysis cannot be 

based on the fact that evidence of sexual misconduct propensity evidence would be prejudicial. . . . Of course, the 

more probative the evidence is in establishing a similar 

deviant sexual propensity the more prejudicial the evidence becomes, but such prejudice is not unfair under 

[§ 27-403] because of its enhanced probative value. 11

Despite the prejudice inherent in this type of evidence, the 

Legislature enacted § 27-414. Assuming that the evidence met 

the balancing test of § 27-414, the Legislature set no limitation 

on a fact finder’s use of this evidence. This stands in contrast 

to § 27-404, where other types of character or bad acts evidence are presumed to be inadmissible, and where admissible 

for one or more of the particular purposes as set forth by the 

statute, the evidence may be considered only for those purposes. Thus, while § 27-404 is a rule of exclusion, § 27-414 is 

a rule of admissibility.

It is with an understanding of the prejudicial nature of such 

evidence, and the wide range of purpose for which the fact 

finder may consider it, that we weigh the various factors of the 

balancing test set forth in § 27-414.

The district court found, and we agree, that there was clear 

and convincing evidence that the events composing A.L.’s 

10 See State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).

11 3 R. Collin Mangrum, Mangrum on Nebraska Evidence § 27-414[D](5) at 

334 (2019).
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allegations occurred. In addition, we have previously noted 

that evidence of the repeated nature of sexual assault incidents 

may be relevant in proving these crimes occurred, especially 

when committed against “‘“persons otherwise defenseless 

due to age.”’” 12 This is applicable in this situation, given 

the young age of B.L. (as well as A.L.) at the time of the 

alleged assaults.

In addition, the events described in A.L.’s allegations were 

close in time to the charges involving B.L. for which Lierman 

was on trial. According to A.L., Lierman sexually assaulted her 

until the time of his arrest, while B.L. testified that Lierman 

began assaulting her when he was on bond awaiting trial on 

A.L.’s allegations.

A.L.’s allegations were similar to the allegations made by 

B.L. The girls were similar in age when the assaults began, 

were sisters, and were both adopted daughters to Lierman. 

Both girls reported that the sexual acts grew out of “hip rubs” 

that they each gave Lierman, which led to fondling outside of 

clothing, and then eventually, penile penetration. Both girls 

reported incidents occurring in Lierman’s bedroom and in his 

semi-truck while on the road.

Of course, as Lierman points out, he was acquitted by a jury 

of A.L.’s allegations, which we consider in this balancing test. 

Lierman argues that the State offered A.L.’s allegations in part 

to argue to the jury in B.L.’s case that the jury in the first case 

made a mistake, while this second jury could rectify it. But 

we are not persuaded by this: the jury was clearly instructed 

that “[t]he defendant [was] on trial only for the crimes alleged 

herein,” and that fact was pointed out to the jury by both the 

State and Lierman’s counsel.

Nor is there any distinction between the allegations for 

which Lierman was convicted and those for which he was 

never charged. Other than arguing the State could have charged 

him earlier, Lierman does not explain how this fact would 

12 See State v. Kibbee, supra note 10, 284 Neb. at 95, 815 N.W.2d at 891, 

quoting State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991).
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prevent the use of the allegations per § 27-414. That statute 

allows conduct to be admitted, not convictions.

There is no merit to Lierman’s first assignment of error.

2. Evidence of Alternative Reasons 

for B.L.’s Unhappiness

(a) Standard of Review

In proceedings where the Nebraska Evidence Rules apply, 

the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the 

rules make discretion a factor in determining admissibility. 13

Where the Nebraska Evidence Rules commit the evidentiary 

question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of 

discretion. 14

(b) Background

In his second assignment of error, Lierman argues that 

during the State’s examination of B.L., it opened the door to 

the introduction of specific evidence that when considered 

together, showed that B.L. was not happy and that it was this 

unhappiness, and not any alleged sexual abuse, that resulted in 

B.L.’s attempted suicide. At issue was evidence that B.L. was 

(1) caught using the computer to access an adult dating website, (2) using social media to arrange a meeting with a boy 

her age, (3) using a tablet computer to access adult-oriented 

websites on dates when Lierman claims he was out of town, 

and (4) being bullied at school.

The district court sustained the State’s objection to Lierman’s 

attempts to present evidence of these instances.

(i) Use of Adult Dating Website

An offer of proof was made wherein Julie would have testified that sometime in 2013, she was on the family computer 

13 State v. Kibbee, supra note 10.

14 Id.
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and noticed that B.L. had left her email account open. Julie 

discovered that B.L. had been creating a profile on a dating 

website. In response, Lierman and Julie summoned the county 

sheriff to explain to B.L. the dangers of this type of activity. 

Lierman also wanted to offer a portion of B.L.’s deposition in 

which she testified that she had not had contact with anyone 

on the website, but that she had only created a profile using 

false information. In her deposition testimony, B.L. testified 

that Lierman sexually assaulted her after Julie went to work the 

night that B.L.’s actions were discovered. In support of admitting this evidence, Lierman argued it was part of the res gestae 

of the crimes charged, because B.L. claimed that it led directly 

to another sexual assault.

The district court declined to admit this evidence, finding 

the implication was that B.L. had engaged in some type of 

sexual misconduct, violating Neb. Rev. Stat. § 27-412 (Reissue 

2016). In addition, the court sustained the State’s objection 

that Lierman’s cross-examination of B.L. on this point was 

improper under § 27-403 and Neb. Rev. Stat. § 27-608(2) 

(Reissue 2016).

(ii) Social Media Message About 

Meeting With Classmates

A second offer of proof would have had Julie testify that 

one night when she was on the computer, an instant message for B.L. appeared. The message indicated that B.L. was 

attempting to arrange to meet classmates, including a particular boy, after school to go to another location and that this was 

a violation of the rules of the Lierman household. The district 

court refused to admit this evidence as well, again on the basis 

of §§ 27-412 and 27-608(2).

(iii) Websites Accessed on Tablet Computer

A third offer of proof involved a tablet computer used by 

B.L. Law enforcement examined the tablet and determined 

that it was used on several occasions to access pornographic 

websites. The offer of proof also established that there was 
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no way to know who had accessed the websites, but Lierman 

argued that his trucking logs would have established that it 

was not him. The district court found that this evidence was 

not relevant, because it could not be established that B.L. was 

the person who accessed the websites, and that in any case, the 

evidence was inadmissible under § 27-412.

(iv) Unhappiness at Home and School

In a final offer of proof, Lierman asserted that if admitted, 

testimony from family members would show that B.L. was 

being bullied at school. In addition, this testimony would show 

that B.L. was unhappy at home because, as the prior incidents 

indicated, she had trouble following the rules of the household. 

The district court found that the matter of B.L.’s not liking or 

following the rules of the household to be irrelevant and in violation of § 27-608(2). As for the bullying at school, the district 

court concluded it was not relevant, because B.L. had changed 

schools by the time of the suicide attempt.

(c) Analysis

Lierman’s argument on appeal with respect to these various 

pieces of evidence is that the State opened the door to B.L.’s 

credibility and that he was then permitted to cross-examine her 

with respect to these incidents. “Opening the door” is a rule of 

expanded relevancy which authorizes admitting evidence that 

would otherwise be irrelevant in order to respond to (1) admissible evidence which generates an issue or (2) inadmissible 

evidence admitted by the court over objection. 15

Lierman contends that the State opened the door to B.L.’s 

truthfulness in the following exchange between the State’s 

attorney and B.L.:

Q. Another thing, during the — those times you 

described and generally, those things you described with 

. . . Lierman and you, did . . . Lierman always call you by 

his own name — by your own name, rather?

A. No.

15 State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999).
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Q. Explain, please.

A. Yeah. Well, I have nicknames, I mean, like Nanna 

and stuff.

Q. Speak up.

A. Like Nanna. But when he got mad at me or I did 

something like lie about doing the dishes and I didn’t do 

them, he would call me . . .

Q. What I’m talking about is . . . during the times sex 

things were going on, was there another name used?

Lierman additionally argues that the State opened the door 

by offering into evidence exhibit 201, which he identified as a 

letter written to Lierman from B.L., detailing B.L.’s unhappiness and the bullying she was facing at school.

In fact, exhibit 201 is a photograph of a piece of lined notebook paper that repeats the sentence, “I will respeck [sic] my 

mom and dad.” This exhibit was initially offered, but the State 

acknowledged that it was done so in error and it was withdrawn, though it had been published to the jury. (The letter was 

not sent back with the jury during its deliberations.) The letter 

from B.L. to Lierman was actually exhibit 246, and it was 

offered into evidence. With the exception of the salutation and 

the signature, which B.L. said did not look like her handwriting, B.L. agreed that she wrote the letter.

Lierman argues only about the letter from B.L. to Lierman, 

not about the “respeck” lines. But the record shows that this 

letter was offered and admitted and that B.L. was questioned 

about it. As for the other incident—the questioning about B.L.’s 

lying about doing the dishes—such did not “open the door” to 

questions about B.L.’s credibility. B.L.’s answer appears to 

be born of not understanding the question asked of her, and 

the State immediately redirected her testimony. Moreover, the 

specific instances of B.L.’s misbehavior were not relevant to 

B.L.’s truthfulness, because as the district court noted, those 

instances are excludable as specific instances of misconduct, or 

at worst, attempting to impugn B.L. by implying that she was 

involved in risky sexualized behavior.
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Because the State did not open the door to the evidence 

which Lierman argues is admissible, there is no merit to 

Lierman’s second assignment of error.

3. Sufficiency of Evidence

(a) Standard of Review

[6] 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 the 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. 16

(b) Analysis

In his third assignment of error, Lierman assigns that the district court erred in finding that the evidence was sufficient to 

convict him. Lierman argues that without the evidence pertaining to the allegations made by B.L., “it is highly unlikely that 

[Lierman] would have been convicted. The evidence pertaining 

to the allegations made by B.L. was very weak with no real 

physical evidence present and frequently changing allegations 

by B.L. during the course of the case.” 17 In addition, Lierman 

asserts that “[t]here [was] no specificity in [B.L.’s] responses” 

as to the dates of the alleged offenses and that such was necessary because the only distinction between many of the offenses 

was B.L.’s age at the relevant time. 18

We find that the evidence was sufficient to support Lierman’s 

convictions. B.L. testified that she was sexually assaulted by 

Lierman during the relevant time periods. This court does not 

16 State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019).

17 Brief for appellant at 44.

18 Id.
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reweigh that evidence. Lierman’s assignment of error to the 

contrary is without merit.

4. Recusal

(a) Standard of Review

[7] A recusal motion is initially addressed to the discretion 

of the judge to whom the motion is directed. 19

(b) Analysis

In his fourth assignment of error, Lierman contends that 

the district court erred in not recusing itself because of an ex 

parte communication with the State and because it presided at 

a hearing regarding a grant of immunity given to Julie without 

giving Lierman notice.

[8-11] An ex parte communication occurs when a judge 

communicates with any person concerning a pending or 

impending proceeding without notice to an adverse party. 20 A 

judge who initiates or invites and receives an ex parte communication concerning a pending or impending proceeding 

must recuse himself or herself from the proceedings when a 

litigant requests such recusal. 21 A judge should recuse himself or herself when a litigant demonstrates that a reasonable 

person who knew the circumstances of the case would question the judge’s impartiality under an objective standard of 

reasonableness, even though no actual bias or prejudice was 

shown. 22 A party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming the presumption of 

judicial impartiality. 23

The first motion to recuse, filed on January 29, 2016, details 

events from earlier that same day. It appears there was an issue 

19 Thompson v. Millard Pub. Sch. Dist. No. 17, 302 Neb. 70, 921 N.W.2d 589 

(2019).

20 State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018).

21 Id.

22 Thompson v. Millard Pub. Sch. Dist. No. 17, supra note 19.

23 Id.
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surrounding the taking of B.L.’s deposition. One of the State’s 

attorneys went to the district court’s courtroom while the 

judge was on the bench regarding matters in unrelated cases. 

At the conclusion of those matters, but before the court had 

adjourned, the State’s attorney indicated that the parties were 

having an issue with the deposition and sought a hearing. The 

district court then asked his staff to contact defense counsel to 

see whether a hearing could be set for later that day. Defense 

counsel refused to do so based on just the State’s oral motion, 

then filed the recusal motion.

A hearing was held on this motion on February 1, 2016. At 

the hearing, the court declined to hear evidence, but instead 

explained the facts, as set forth above, and denied the motion. 

During the hearing, Lierman made an oral motion to recuse, 

which the court requested be filed as a written motion.

A second hearing on the motions to recuse was held on 

February 5, 2016. The operative motion at that hearing was the 

amended second motion to recuse, which sought the district 

court’s recusal because the court had failed to give notice to 

Lierman that his wife, Julie, was being offered immunity for 

her testimony. Following that hearing, the district court denied 

the motion to recuse, reasoning that Lierman was not entitled 

to notice of any grant of immunity to Julie.

We turn first to the issue of B.L.’s deposition. The record 

indicates that the State, not the court, initiated the conversation 

and that the conversation pertained to scheduling a hearing. 

The court’s response was to have defense counsel contacted 

about the issue. This is not an improper ex parte communication that would give rise to a need for a judge’s recusal. 24

Nor was there error with respect to the grant of immunity 

to Julie. The language of the relevant statute, Neb. Rev. Stat. 

§ 29-2011.02 (Reissue 2016), and our case law interpreting 

that statute, 25 provides that because the Legislature “has given 

courts the power to immunize a witness solely upon the request 

24 Neb. Rev. Code of Judicial Conduct § 5-302.9.

25 State v. Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013).
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of the prosecutor, it is not a power the court can exercise upon 

the request of the defendant or upon its own initiative.” 26 The 

court is not obligated under § 29-2011.02 to notify a defendant 

when the State offers a witness immunity. As such, the district 

court did not show bias or prejudice against Lierman by failing 

to provide notice to him.

To the extent that Lierman is suggesting that the hearing 

in which Julie was given immunity might have been considered an ex parte communication, this argument is also without 

merit. The hearing took place in a separately docketed case, in 

open court, and on the record. There is no merit to Lierman’s 

fourth assignment of error.

5. Excessive Sentences

(a) Standard of Review

[12,13] An appellate court will not disturb a sentence 

imposed within the statutory limits absent an abuse of discretion by the trial court. 27 Abuse of discretion occurs when a trial 

court’s decision is based upon reasons that are untenable or 

unreasonable or if its action is clearly against justice or conscience, reason, and evidence. 28

(b) Analysis

In his fifth assignment of error, Lierman contends that the 

district court’s sentences were excessive. Lierman argues that 

he is obese and in poor health, with no record of prior sexual 

assault convictions, and that at his age, his sentence total of 70 

to 140 years’ imprisonment amounts to a life sentence.

When imposing a sentence, a sentencing judge should consider 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 

26 Id. at 989, 840 N.W.2d at 514.

27 State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).

28 Id.
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(8) the violence involved in the commission of the crime. 29

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. 30

We have reviewed Lierman’s sentences and conclude that 

they were not excessive. Lierman was convicted of multiple 

counts of sexual assault of his adolescent daughter over a 

period of several years. The sentences were within statutory 

limits and were not an abuse of discretion. This assignment of 

error is without merit.

6. Subpoenas Duces Tecum

(a) Standard of Review

[14] Statutory interpretation is a question of law, which an 

appellate court resolves independently of the trial court. 31

(b) Analysis

In his sixth assignment of error, Lierman assigns that the 

district court erred in quashing the subpoenas duces tecum 

served upon several witness set for deposition. Lierman argues 

that in addition to their testimony, he ought to be permitted to 

ask deponents to provide materials relevant to B.L.’s allegations. In quashing the subpoenas duces tecum, the district court 

found that there was no statutory authority for such a request 

in criminal cases and that the lack of this procedure did not 

violate the constitution. Lierman argues on appeal that he is 

“concerned with the possibility that one of the witnesses may 

have some information that the State does not request or does 

not hand over pursuant to discovery. In that respect, [Lierman] 

can not obtain such information.” 32

29 Id.

30 Id.

31 Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 

(2019).

32 Brief for appellant at 51.
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No reciprocal discovery order had been sought in this case 

as of the time of the issuance of these subpoenas, but a Brady 33

notice was filed. Lierman concedes that he does not accuse the 

State of failing to hand over Brady material.

Neb. Rev. Stat. § 29-1917(1) (Reissue 2016) provides for the 

issuance of a deposition subpoena in a criminal case:

(1) Except as provided in section 29-1926, at any time 

after the filing of an indictment or information in a felony 

prosecution, the prosecuting attorney or the defendant 

may request the court to allow the taking of a deposition 

of any person other than the defendant who may be a witness in the trial of the offense. The court may order the 

taking of the deposition when it finds the testimony of 

the witness:

(a) May be material or relevant to the issue to be determined at the trial of the offense; or

(b) May be of assistance to the parties in the preparation of their respective cases.

Both § 29-1917(3) and Neb. Rev. Stat. § 29-1905 (Reissue 

2016) similarly provide that the taking of the deposition of a 

witness “shall be governed in all respects as the taking of depositions in civil cases.”

The general procedures to be used in issuing subpoenas in 

a civil case are set forth in Neb. Rev. Stat. § 25-1223 (Cum. 

Supp. 2018). Neb. Rev. Stat. § 25-1224(1) (Cum. Supp. 2018) 

provides:

A subpoena commanding an individual to appear and 

testify at a trial or deposition may command that at the 

same time and place specified in the subpoena for the 

individual to appear and testify, the individual must produce designated documents, electronically stored information, or tangible things in the individual’s possession, 

custody, or control. The scope of a command to produce 

documents, electronically stored information, or tangible 

33 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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things pursuant to this section is governed by the rules of 

discovery in civil cases.

This section, when considered with §§ 29-1905 and 29-1917, 

forms the basis of Lierman’s argument on appeal that “[t]he 

proceedings in taking the deposition of a witness pursuant to 

this section and returning it to the court shall be governed 

in all respects as the taking of depositions in civil cases.” 34

Lierman suggests that the ability to seek “designated documents, electronically stored information, or tangible things in 

the individual’s possession, custody, or control” is part of the 

procedure referenced in §§ 29-1905 and 29-1917.

Section 25-1223 generally sets forth the procedure for the 

issuance of trial and deposition subpoenas. The power to 

specifically issue a subpoena duces tecum is the topic of 

§ 25-1224. It is § 25-1224(1) which explicitly notes that “[t]he 

scope of a command to produce documents, electronically 

stored information, or tangible things pursuant to this section is 

governed by the rules of discovery in civil cases.”

The crux of Lierman’s argument is that a subpoena duces 

tecum allows him to obtain records that he might not otherwise 

have known existed. But even assuming that the subpoena 

duces tecum is available in criminal cases in Nebraska, it is not 

intended to be used as a “‘fishing expedition.’” 35 Generally, 

documents sought in such a way are subject to a showing of 

relevance and admissibility, with requested documents identified with adequate specificity. 36 Nebraska’s rules of civil discovery provide that “the designation of the materials to be produced pursuant to the subpoena shall be attached to or included 

in the notice.” 37

34 § 29-1917(3).

35 United States v. Nixon, 418 U.S. 683, 700, 94 S. Ct. 3090, 41 L. Ed. 2d 

1039 (1974).

36 2 Barbara E. Bergman & Nancy Hollander, Wharton’s Criminal Evidence 

§ 10:9 (15th ed. 1998 & Cum. Supp. 2019-20) (collecting cases).

37 Neb. Ct. R. Disc. § 6-330(C)(1) (rev. 2016).
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As an initial matter, we lack a complete record on this 

issue. The record before this court generally shows that 

Lierman sought deposition testimony and documents, but, 

with a few exceptions, the record does not include the pertinent notices of deposition or otherwise identify the witnesses 

upon whom notices were served. Moreover, Lierman failed to 

explain below or on appeal what documents he would have 

requested that witnesses bring to their depositions or what 

documents he believes they might have had in their possession, custody, or control. But without this showing, Lierman’s 

subpoenas amount to no more than an impermissible fishing expedition.

For these reasons, we find no error in the district court’s 

quashing of the subpoenas duces tecum, and Lierman’s assignment of error is without merit.

7. Ineffective Assistance of Counsel

(a) Standard of Review and 

Propositions of Law

[15] 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. 38

[16] 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 perform

ance which is known to the defendant or is apparent from 

the record. 39 Once raised, the appellate court will determine 

whether the record on appeal is sufficient to review the merits 

of the ineffective performance claims. 40

38 State v. Lee, supra note 27.

39 Id.

40 Id.
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[17,18] In order to know whether the record is insufficient 

to address assertions on direct appeal that trial counsel was 

ineffective, appellate counsel must assign and argue deficiency 

with enough particularity (1) for an appellate court to make a 

determination of whether the claim can be decided upon the 

trial record and (2) for a district court later reviewing a petition for postconviction relief to be able to recognize whether 

the claim was brought before the appellate court. 41 When a 

claim of ineffective assistance of trial counsel is raised in a 

direct appeal, the appellant is not required to allege prejudice; 

however, an appellant must make specific allegations of the 

conduct that he or she claims constitutes deficient performance 

by trial counsel. 42

(b) Analysis

In his final assignment of error, Lierman assigns that his 

trial counsel was ineffective by (1) failing to call certain witnesses, (2) not utilizing evidence of Lierman’s driving logs to 

form an alibi defense, (3) failing to file a motion in limine to 

exclude evidence regarding B.L.’s difficulties at school and 

general unhappiness, (4) not objecting to the order in which the 

State presented its evidence, and (5) not objecting to the State’s 

use of B.L.’s suicide attempts and ideation.

(i) Failure to Call Certain Witnesses

Lierman first assigns that his counsel was ineffective in failing to call two particular witnesses: Dr. Ashutosh Atri, a doctor 

at the hospital where B.L. was admitted following her suicide 

attempt, and Dr. Hugo Gonzalez, another doctor who would 

have testified that B.L. never reported a sexual assault to him. 

Lierman alleges Atri would have testified that B.L. indicated 

early in her stay she was not a victim of sexual assault, that 

she participated in family counseling sessions, and, further, that 

41 Id.

42 Id.
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she made no allegations of sexual assault until she learned she 

might be discharged to go home soon.

There is nothing in the record to explain why counsel did 

not call Atri and Gonzalez. As such, we lack the record to 

determine this issue on direct appeal.

We additionally note that Lierman argues that his trial counsel was ineffective in failing to ask certain questions of B.L.’s 

aunt. But we need not consider that argument, because Lierman 

did not separately assign that failure as error. 43

(ii) Driving Logs as Alibi Defense

Lierman argues that his trial counsel erred in not pursuing an 

alibi defense through the use of Lierman’s driving logs, which 

were apparently created by Lierman himself. Lierman claims 

those logs would have shown that he was on the road during 

some of the “relevant dates.”

There is nothing in the record to explain why counsel chose 

not to introduce these driving records. As such, we lack the 

record to determine this issue on direct appeal.

(iii) Failure to File Motion in Limine 

Regarding B.L.’s School and 

Home Difficulties

Lierman argues that trial counsel was ineffective in failing to file pretrial motions in limine regarding “evidence 

that would call into question the credibility of the State’s 

witnesses.” 44 Lierman contends that had trial counsel done so, 

counsel would have known what evidence would have been 

admissible versus inadmissible and would have been better 

prepared for trial.

Lierman has not sufficiently pled this allegation. He does 

not identify what evidence should have been subject to a 

motion in limine or which witness’ credibility would have been 

43 See In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).

44 Brief for appellant at 54.
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challenged by that evidence. As such, we find that this allegation of deficient conduct has not been pled with the specificity 

necessary to avoid a future procedural bar.

(iv) Failure to Object to Order of 

State-Presented Evidence

Lierman next contends that his counsel was ineffective 

in failing to object to the order in which the State presented its evidence. Specifically, Lierman argues that at the 

§ 27-414 hearing held prior to trial, the evidence of A.L.’s 

allegations was found by the trial court to be conditionally 

admissible dependent upon a showing of sufficient factual 

similarities and trial counsel should have objected when the 

State offered that evidence prior to showing those similarities. Lierman argues that “counsel should have objected to the 

sequence of the evidence being presented because the Court 

gave counsel the opportunity to force the State to produce 

evidence in another order than the one it was comfortable 

with.” 45 We have a sufficient record to determine this issue 

on direct appeal, and we find that trial counsel was not 

ineffective.

First, we observe that Neb. Rev. Stat. § 29-2016 (Reissue 

2016) sets forth the procedure that a trial court should follow in 

conducting a criminal trial. There is nothing in that section, nor 

does Lierman direct us to other law, that might suggest that a 

criminal defendant has any control, directly or otherwise, over 

the order in which the State presents its evidence.

Lierman suggests that he had the ability to dictate the 

sequence of the State’s evidence had counsel objected and held 

the State to the district court’s earlier order finding the State’s 

§ 27-414 evidence to be only conditionally admissible. But 

having reviewed the record as a whole, we conclude that the 

State made a sufficient showing as to the similarities between 

A.L.’s and B.L.’s allegations such that A.L.’s allegations 

45 Id.
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were admissible. As such, Lierman cannot show that counsel 

was ineffective.

(v) Failure to Object to State’s 

Use of Lierman’s Suicide Attempts

Finally, Lierman asserts that his trial counsel was ineffective for failing to object to the admission into evidence of 

Lierman’s two suicide attempts. One attempt occurred during 

a standoff between him and law enforcement when he returned 

home from a trucking job to find that A.L. had accused him of 

sexual abuse. The second attempt occurred while he was in jail 

on those charges.

The record indicates that these issues were addressed at a 

pretrial hearing on Lierman’s motions to suppress, in limine, 

and for a determination of relevancy. The trial court, in its 

order largely denying Lierman’s motions, found that the events 

were relevant and were admissible as evidence of Lierman’s 

consciousness of guilt. In particular, Lierman now argues 

that while suicide attempts might be probative of “‘conscious 

guilt,’” they also speak toward “potential mental illness,” and 

that thus, the admission of this evidence was more prejudicial 

than probative. 46

An analysis under § 27-403 consists of a balancing test, 

which is left to the sound discretion of the trial court. 47 That 

balancing test provides that “[a]lthough relevant, evidence may 

be excluded if its probative value is substantially outweighed 

by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, waste 

of time, or needless presentation of cumulative evidence.” 48

We find that the district court did not abuse its discretion in 

admitting evidence of Lierman’s suicide attempts and ideation. 

Both suicide attempts were made contemporaneous to A.L.’s 

46 Id. at 55.

47 See State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019).

48 § 27-403. See State v. Stubbendieck, supra note 47.
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allegations, one immediately prior to Lierman’s arrest at a time 

when he was aware that he was about to arrested. The second 

attempt was made at the jail when Lierman was incarcerated 

after his arrest and immediately following a visit with members 

of his family.

It was not an abuse of discretion for the district court to 

conclude that Lierman’s actions were probative of his guilt 

and that this outweighed any possible prejudice. We decline 

Lierman’s invitation to conclude that a suicide attempt can 

never be probative of consciousness of guilt; indeed, the facts 

in this case show that these suicide attempts were probative of 

Lierman’s consciousness of guilt.

Because the district court did not err in admitting the evidence, counsel was not ineffective for failing to object. There 

is no merit to Lierman’s argument to the contrary.

V. CONCLUSION

The judgment and sentences of the district court are affirmed.

Affirmed.

Freudenberg, J., not participating.

Cassel, J., concurring.

I write separately only to address Lierman’s argument, which 

he makes at least implicitly, that the scope of discovery and, in 

particular, the scope of a subpoena duces tecum in a criminal 

case is as broad as in a civil case. He is wrong.

Civil and criminal cases have different limitations upon 

when depositions may be taken. In civil cases, depositions 

may be taken without leave of court, except within 30 days of 

service of summons. 1 And there are exceptions to the 30‐day

limitation. 2 In criminal cases, however, leave of court is always 

required. 3 Although this statute was amended in 2019, the same 

1 See Neb. Ct. R. Disc. § 6‐330 (rev. 2016)

2 See id.

3 See Neb. Rev. Stat. § 29‐1917(1) (Supp. 2019)
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requirement for leave existed at all relevant times in the prosecution against Lierman. 4

Section 29‐1917 limits the scope of a discovery deposition

in a criminal case in two significant ways. First, only a “person 

other than the defendant who may be a witness in the trial of 

the offense” may be deposed. 5 In other words, if the person 

could not possibly be called as a witness at the trial in the 

criminal case, no deposition is permitted.

The second limitation is more significant. A court is permitted to order the taking of a deposition in a criminal case only 

if the witness’ testimony “[m]ay be material or relevant to the 

issue to be determined at the trial of the offense” or “[m]ay be 

of assistance to the parties in the preparation of their respective 

cases.” 6 In a criminal case, the elements of the charged crime 

or crimes define the issues. 7 Thus, a court may grant leave to 

take a criminal case deposition only where the testimony would 

be material or relevant to the existence or nonexistence of an 

element of a charged offense or where the testimony would 

assist a party in preparing its case.

In contrast, the scope of discovery in civil cases extends 

much further. Generally, in a civil case, parties may obtain discovery “regarding any matter, not privileged, which is relevant 

to the subject matter involved in the pending action.” 8 Further, 

the rule adds, “It is not ground for objection that the information sought will be inadmissible at the trial if the information 

sought appears reasonably calculated to lead to the discovery 

of admissible evidence.” 9 Obviously, the civil discovery rule 

articulates a much wider scope for inquiry than is permitted in 

a criminal case.

4 See § 29‐1917 (Reissue 2016)

5 § 29‐1917(1)

6 § 29‐1917(1)(a) and (b) (emphasis supplied)

7 See State v. George, 228 Neb. 774, 424 N.W.2d 350 (1988).

8 Neb. Ct. R. Disc. § 6‐326(b)(1) (emphasis supplied)

9 Id. (emphasis supplied).
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Neither statute upon which Lierman relies expands the scope 

of depositions in criminal cases. He cites two criminal procedure statutes: § 29‐1917 and Neb. Rev. Stat. § 29‐190

(Reissue 2016). In both instances, his reliance is misplaced.

First, he reads too much into § 29‐1905, which states: “The

proceedings in taking the examination of such [deposition] witness and returning it to court shall be governed in all respects 

as the taking of depositions in all civil cases.” In reading a 

penal statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire 

language of the statute considered in its plain, ordinary, and 

popular sense. 10 The plain language of § 29‐1905 applies the

civil procedures to criminal cases only in “taking the examination” and “returning it to court.” In the context of civil discovery depositions under § 6‐330, the procedures of “taking” and

“returning” would include subsections (c) 11 and (f). 12

Second, the text of § 29‐1905 predates discovery depositions in criminal cases. It was first enacted in 1873 13 and has

not been amended since the 1943 codification. 14 The criminal 

case discovery statute, § 29‐1917, in contrast, was initially

adopted only in 1969. 15 Section 29‐1905 simply does not speak

to the scope of discovery permitted in a deposition in a criminal case.

Lierman’s reliance on § 29‐1917(3) fares no better. At

the relevant times in the court below, this subsection stated 

only, “The proceedings in taking the deposition of a witness 

pursuant to this section and returning it to the court shall be 

10 State v. Jedlicka, ante p. 52, ___ N.W.2d ___ (2020).

11 § 6‐330(c) (“Examination and Cross‐Examination; Record of Examination

Oath; Objections”).

12 § 6‐330(f) (“Certification and Delivery by Officer; Copies; Notice of

Delivery”).

13 Gen. Stat. ch. 58, § 463, p. 825 (1873).

14 See § 29‐1905 (1943)

15 See 1969 Neb. Laws, ch. 235, § 6, p. 870.
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governed in all respects as the taking of depositions in civil 

cases.” 16 This language, like § 29‐1905, is limited to the

“taking” and “returning” of the deposition. It addresses procedural steps rather than the scope of discovery. In 2019, the 

Legislature appended the words, “including section 25‐1223.” 1

This was apparently done in light of a substantial rewrite of 

Neb. Rev. Stat. § 25‐1223 (Cum. Supp. 2018) in 2017. 18 The

changes in § 25‐1223 speak mainly to the “nuts and bolts” of

the procedures for issuance, service, and return of a subpoena. 

And nothing in the 2019 amendment of § 29‐1917 to include

provisions from § 25‐1223 regarding “taking” and “returning” a deposition suggests, let alone dictates, any intention

to modify the scope of inquiry permitted in a deposition in a 

criminal case.

These statutes, taken as a whole, demonstrate the 

Legislature’s understanding that the issues in a criminal case 

are always circumscribed by the elements of the crime or 

crimes with which a defendant is charged. And the differences 

in scope and procedure prevent discovery from being used 

in a “fishing expedition” or an attempt to confuse the issues. 

Thus, while I agree with the outcome of the court’s decision, 

I would squarely reject Lierman’s attempt to judicially expand 

the scope of discovery in criminal cases beyond that clearly 

articulated by the Legislature.

16 § 29‐1917(3) (Reissue 2016)

17 § 29‐1917(3) (Supp. 2019)

18 See 2017 Neb. Laws, L.B. 509, § 1.