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STATE v. HUERTA

Cite as 26 Neb. App. 170

State of Nebraska, appellee, 

v. Jose Huerta, appellant.

___ N.W.2d ___

Filed August 7, 2018. No. A-17-562.

1. Rules of Evidence: Appeal and Error. When 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. Trial: Rules of Evidence: Expert Witnesses. A trial court exercises 

its discretion in determining whether evidence is relevant and whether 

its prejudicial effect substantially outweighs its probative value and in 

admitting or excluding an expert’s testimony.

3. Judgments: Words and Phrases. An 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.

4. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2) does not apply 

to evidence of a defendant’s other crimes or bad acts if the evidence is 

inextricably intertwined with the charged crime.

5. ____: ____. Inextricably intertwined evidence includes evidence that 

forms part of the factual setting of the crime, or evidence that is so 

blended or connected to the charged crime that proof of the charged 

crime will necessarily require proof of the other crimes or bad acts, or if 

the other crimes or bad acts are necessary for the prosecution to present 

a coherent picture of the charged crime.

6. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.

7. Trial: Evidence: Appeal and Error. On appeal, a defendant may not 

assert a different ground for his objection to the admission of evidence 

than was offered at trial.

8. Trial: Waiver: Appeal and Error. Failure to make a timely objection 

waives the right to assert prejudicial error on appeal.

Nebraska Supreme Court Online Library

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

08/07/2018 09:08 AM CDT
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STATE v. HUERTA

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9. Jury Instructions. Whether jury instructions given by a trial court are 

correct is a question of law.

10. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the conclusion 

reached by the lower court.

11. Jury Instructions: Proof: Appeal and Error. In an appeal based on 

a claim of an erroneous jury instruction, the appellant has the burden 

to show that the questioned instruction was prejudicial or otherwise 

adversely affected a substantial right of the appellant.

12. Appeal and Error. Plain error may be found on appeal when an error 

unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness 

of the judicial process.

13. Verdicts: Appeal and Error. Harmless error review looks to the basis 

on which the trier of fact actually rested its verdict; the inquiry is 

not whether in a trial that occurred without the error a guilty verdict 

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

verdict rendered in the questioned trial was surely unattributable to 

the error.

14. Criminal Law: Trial: Proof: Jury Instructions: Due Process. In a 

criminal trial, the State must prove every element of the offense beyond 

a reasonable doubt, and a jury instruction violates due process if it fails 

to give effect to that requirement.

15. Trial: Jury Instructions: Due Process. Not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is whether the ailing instruction so infected 

the entire trial that the resulting conviction violates due process.

16. Jury Instructions: Appeal and Error. All the jury instructions must 

be read together, and if, taken as a whole, they correctly state the law, 

are not misleading, and adequately cover the issues supported by the 

pleadings and the evidence, there is no prejudicial error necessitating reversal.

17. Trial: Prosecuting Attorneys: Jury Instructions. A statement made by 

a prosecutor during closing argument can assist a jury in resolving any 

ambiguity in the jury instructions and may be considered particularly 

where the prosecutor’s argument resolves the ambiguity in favor of 

the defendant.

18. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial 

counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the 

record. Otherwise the issue will be procedurally barred.
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STATE v. HUERTA

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

an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining factor is 

whether the record is sufficient to adequately review the question.

20. Effectiveness of Counsel: Proof: Appeal and Error. 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.

Appeal from the District Court for Buffalo County: William

T. Wright, Judge. Affirmed.

David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, 

P.C., for appellant.

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

for appellee.

Moore, Chief Judge, and Arterburn and Welch, Judges.

Arterburn, Judge.

I. INTRODUCTION

Jose Huerta was convicted by a jury of first degree sexual 

assault. The district court subsequently sentenced Huerta to 

6 to 8 years’ imprisonment. Huerta appeals from his conviction here. On appeal, he assigns numerous errors, including 

that the district court erred in making certain evidentiary 

rulings and in failing to properly instruct the jury. In addition, Huerta alleges that he received ineffective assistance of 

trial counsel in various respects. Upon our review, we affirm 

Huerta’s conviction.

II. BACKGROUND

The State filed an information charging Huerta with 

first degree sexual assault pursuant to Neb. Rev. Stat. 

§ 28-319(1)(c) (Reissue 2016). Specifically, the information 

alleged that Huerta, who is 19 years of age or older, subjected 

a person, who was at least 12 years old, but less than 16 years 
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old, to sexual penetration. The charge against Huerta stems 

from an incident which occurred on April 3, 2016. Evidence 

adduced at trial revealed that during the evening of April 3, 

14-year-old C.W. was spending time with her 16-year-old 

friend, C.G., when C.G. contacted Huerta, whom she referred 

to as her “uncle,” to come pick them up. After Huerta picked 

the girls up, he drove them to a liquor store where he purchased beer, and then he drove all of them to an apartment 

owned by his friend, William McGregor.

The events that transpired after Huerta, C.W., and C.G. 

arrived at McGregor’s apartment were disputed at trial. C.W. 

testified that once they arrived at the apartment, she, C.G., 

and Huerta all began to drink the beer he had purchased and 

to smoke cigarettes, which were also provided by Huerta. 

C.W. testified that she drank four beers, which was more alcohol than she had ever previously consumed. In fact, she drank 

so much that she threw up in a trash can which was located 

in the kitchen of the apartment. C.W. testified that after they 

had been at the apartment for a few hours, C.G. and Huerta 

went into the bathroom together and shut the door. While 

they were in the bathroom, C.W. could hear “kissing sounds.” 

When they returned from the bathroom, C.W. observed Huerta 

touching C.G. “in her vaginal area” over her clothing and 

kissing C.G.

C.W. testified that at some point, Huerta began touching 

her vaginal area. C.G. then instructed C.W. to come into the 

bedroom with her and Huerta. Once inside the bedroom, C.W. 

sat on the corner of the bed. C.W. testified that C.G. told C.W. 

that C.W. was “not going to be a virgin anymore.” Then C.G. 

and Huerta undressed and began having sexual intercourse 

on the bed next to where C.W. was sitting. C.W. testified that 

Huerta used a condom during his sexual contact with C.G. She 

indicated that she had observed Huerta obtain this condom 

from the laundry room in the apartment.

After C.G. and Huerta finished, they dressed and all three 

of them returned to the living room. However, a few minutes 
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later, Huerta obtained another condom from McGregor, and 

C.W., C.G., and Huerta returned to the bedroom. This time, 

Huerta took off C.W.’s clothes and removed his own clothes. 

He began having penile-vaginal intercourse with C.W. She testified that she had never had sexual intercourse before and that 

it was “very painful.” She also testified that she told Huerta 

to stop because she was in pain, but he did not stop. C.W. 

indicated that during this portion of the assault, C.G. remained 

in the bedroom. After C.G. left the room, C.W. described that 

Huerta had anal sex and oral sex with her. She explained that 

Huerta had “stuck his penis through my anus,” that he had 

“placed my mouth on his penis,” and that he “was biting” her 

vaginal area.

After the assault, C.G.’s boyfriend came to McGregor’s 

apartment to take the girls home. C.W. testified that in the days 

following the assault, she felt anxiety and depression about 

what had happened. Ultimately, she was admitted to a mental 

health hospital where she disclosed the assault.

C.G. also testified at trial and essentially corroborated 

C.W.’s version of the events which transpired on the evening 

of April 3, 2016. C.G. testified that she, C.W., and Huerta 

went to McGregor’s apartment where they all began to drink 

beer, which was provided by Huerta. She testified that at 

some point, she, C.W., and Huerta went into the bedroom 

where she and Huerta had consensual sexual intercourse. C.G. 

described that C.W. was on the bed while she and Huerta had 

sex. She also explained that after she and Huerta finished, 

Huerta began having sexual intercourse with C.W. C.G. indicated that after C.W. and Huerta began having sex, she left 

the bedroom.

During the trial, the State also offered DNA evidence which 

was recovered from two condoms located in the bedroom of 

McGregor’s apartment. This evidence revealed that on one of 

the condoms, both C.G.’s and Huerta’s DNA was present. On 

the second condom, C.W.’s DNA was present, but no conclusions could be drawn about the presence of any other DNA 
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because the sample was “too complex.” Both condoms tested 

positive for the presence of semen.

Huerta did not testify at trial, nor did he offer any evidence 

in his defense. However, during the trial the State did offer the 

testimony of Investigator Daniel Warrington with the Kearney 

Police Department, who had previously interviewed Huerta 

about his version of the events of April 3, 2016. During the 

interview, Huerta admitted that the girls were with him at 

McGregor’s apartment, but he denied he had any type of sexual 

contact with either C.W. or C.G. He described himself as “a 

mentor” to C.G. During a subsequent interview with Huerta, 

Huerta continued to “adamantly” deny that he had provided the 

girls with any alcohol, but admitted that he had drank “a large 

amount of alcohol.” He also admitted that C.G. tried to give 

him a “lap dance.” Huerta told Investigator Warrington that he 

had observed C.W. and C.G. kissing each other. He then went 

into the bedroom to sleep.

When Investigator Warrington indicated that law enforcement was testing the condoms found in the bedroom for DNA, 

Huerta explained that when he awoke after being asleep on 

the bed, his “pants were loose on him.” He told Investigator 

Warrington that he was concerned that the girls “did something 

to him while he was passed out.”

After hearing all of the evidence, the jury convicted Huerta 

of first degree sexual assault. The district court subsequently 

sentenced Huerta to 6 to 8 years’ imprisonment.

Huerta appeals his conviction here.

III. ASSIGNMENTS OF ERROR

On appeal, Huerta assigns four errors. First, Huerta argues 

that the district court erred in overruling his objections to 

evidence regarding his sexual contact with C.G. Second, he 

argues that the court erred in allowing the State to offer evidence of DNA testing which provided inconclusive results. 

Third, he alleges that the court committed plain error in 

instructing the jury prior to its deliberations. Finally, he asserts 
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that he received ineffective assistance of trial counsel in various respects.

IV. ANALYSIS

1. Evidentiary Rulings

On appeal, Huerta alleges that the district court erred in 

making two evidentiary rulings. First, he alleges that the court 

erred in permitting the State to present evidence regarding 

his sexual contact with C.G. on the night of April 3, 2016. 

Second, he alleges that the court erred in allowing the State 

to present evidence regarding DNA testing that was done 

on the two condoms found in a trash can in McGregor’s 

bedroom.

(a) Standard of Review

[1,2] When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, 

we review the admissibility of evidence for an abuse of discretion. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015). 

A trial court exercises its discretion in determining whether 

evidence is relevant and whether its prejudicial effect substantially outweighs its probative value. Id. In addition, a trial 

court exercises its discretion admitting or excluding an expert’s 

testimony. See State v. Braesch, 292 Neb. 930, 874 N.W.2d 

874 (2016).

[3] An 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. State v. Johnson, supra.

(b) Evidence of Huerta’s 

Sexual Contact with C.G.

During the State’s opening statement, Huerta objected to 

comments regarding Huerta’s sexual contact with C.G. on the 

night of April 3, 2016. Huerta’s counsel argued:

The objection is that, Your Honor, this is prejudicial. It’s a 

404 objection in that the evidence would tend to indicate 
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rather than what actually happened between [Huerta] and 

the alleged victim, [C.W.], that it’s probable because he 

had legal sex with what the law would consider a consenting adult, although, she’s a 16-year-old and a minor, that 

he also did have sex with [C.W.]

So I think that that being the case, that evidence is 

more prejudicial than probative in that it would allow the 

jury to make an improper conclusion that, well, if he had 

sex with this person, then he must have had sex with this 

other person.

The district court overruled Huerta’s objection to the evidence. 

The court stated:

And at least the Court’s understanding is that this is all 

part and parcel of a series of acts leading to the actual 

sexual act, which is the basis for the charge. It is not a 

separate act in and of itself.

And so on that basis, I am going to overrule the 

objection. I’ll allow the State to make an opening statement with regard to what the alleged victim in this case, 

[C.W.], observed, in large part because it is part of the 

ongoing criminal act and at least potentially preparatory 

for grooming her for something that might later have 

occurred. So I believe it is probative. I believe under the 

circumstances it is more probative than prejudicial in 

any event.

When Huerta renewed his objection to this evidence at various 

points during the State’s presentation of evidence, the district 

court continued to overrule the objection.

On appeal, Huerta argues that the district court erred in 

overruling his objections to evidence regarding his sexual contact with C.G. on April 3, 2016. He argues that this evidence 

was not “inextricably intertwined” with evidence regarding the 

sexual assault of C.W. Brief for appellant at 15. In addition, he 

argues that the probative value of the evidence was clearly outweighed by its potential prejudice. We conclude that Huerta’s 

assertions have no merit. The district court did not abuse its 
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discretion in admitting evidence of Huerta’s sexual contact 

with C.G. into evidence.

[4,5] We conclude first that the district court did not err 

in determining that evidence of Huerta’s sexual contact with 

C.G. was inextricably intertwined with evidence of his sexual 

assault of C.W. so as to exclude such evidence from the 

parameters of Neb. Evid. R. 404(2). Rule 404(2) provides the 

following:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show 

that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of 

motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident.

Rule 404(2) does not apply to evidence of a defendant’s other 

crimes or bad acts if the evidence is inextricably intertwined 

with the charged crime. State v. Burries, 297 Neb. 367, 900 

N.W.2d 483 (2017). Inextricably intertwined evidence includes 

evidence that forms part of the factual setting of the crime, or 

evidence that is so blended or connected to the charged crime 

that proof of the charged crime will necessarily require proof 

of the other crimes or bad acts, or if the other crimes or bad 

acts are necessary for the prosecution to present a coherent 

picture of the charged crime. Id.

Huerta’s sexual contact with C.G. on the evening of April 

3, 2016, was part of the factual setting for the assault of C.W., 

which occurred on the same evening. The State presented evidence that Huerta and C.G. instructed C.W. to come into the 

bedroom with them and that they proceeded to have sexual 

intercourse on the bed while C.W. was seated next to them. 

In addition, C.W. testified that once they all got into the bedroom, C.G. told C.W. that after that night, C.W. was no longer 

going to be a virgin. C.W. also testified that while Huerta and 

C.G. were engaging in sexual intercourse, he tried to pull her 

down so that she, too, was lying on the bed next to them. The 

sexual assault of C.W. happened very close in time to Huerta’s 
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sexual contact with C.G. While C.W. testified that there was 

a little time between the two events because all three of them 

left the bedroom to go to the living room for a few minutes, 

C.G. testified that Huerta began having sexual intercourse with 

C.W. almost immediately after she and Huerta stopped having 

sexual intercourse.

The record supports a conclusion that the evidence of 

Huerta’s sexual contact with C.G. was necessary to present a 

coherent picture of the events of the evening of April 3, 2016. 

In addition, we find that there is some evidence to suggest that 

Huerta had some sort of plan to “groom” C.W. for the sexual 

encounter by involving her in the sexual contact with C.G.

[6] We also find that the district court did not err in concluding that evidence of Huerta’s sexual contact with C.G. was 

more probative than prejudicial. Neb. Evid. R. 403 provides, 

“Although 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.” Unfair prejudice 

means an undue tendency to suggest a decision based on an 

improper basis. State v. Chauncey, 295 Neb. 453, 890 N.W.2d 

453 (2017).

Evidence of Huerta’s sexual contact with C.G. was probative for multiple reasons. First, the evidence demonstrated 

that Huerta lied to Investigator Warrington about the events of 

April 3, 2016, on two separate occasions. Huerta repeatedly 

told Investigator Warrington that he did not have any sexual 

contact with either C.W. or C.G. Huerta also indicated during 

his interview with Investigator Warrington that he considered 

himself to be a mentor to C.G. and that he would not do anything like that to her. Second, as we discussed above, evidence 

of Huerta’s sexual contact with C.G. provided necessary factual context to the events leading up to Huerta’s sexual assault 

of C.W. The evidence suggests that Huerta intended C.W.’s 

exposure to the sexual contact between him and C.G. to be a 
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step toward his sexual assault of C.W. Accordingly, while the 

evidence may have been prejudicial to Huerta, its probative 

value clearly outweighed any unfair prejudice.

Upon our review, we do not find that the district court 

abused its discretion in allowing the State to present evidence 

of Huerta’s sexual contact with C.G. on the evening of April 3, 

2016. Huerta’s assertions on appeal to the contrary are without merit.

(c) DNA Evidence

During the trial, the State called Jeff Bracht, a forensic 

scientist with the Nebraska State Patrol, to testify regarding his analysis of the two condoms found in a trash can in 

McGregor’s bedroom. Bracht testified that the presence of 

semen was detected on both condoms. He went on to testify 

that on the first condom he analyzed, both C.G.’s and Huerta’s 

DNA were present. Huerta objected to Bracht’s testimony 

regarding the DNA on the first condom on the basis that such 

evidence was more prejudicial than probative. The court overruled the objection.

Bracht testified that his analysis indicated that on the second condom, C.W.’s DNA was present on one side of the 

condom. Bracht did indicate that on the side of the condom 

where C.W.’s DNA was present, Huerta was excluded as a 

contributor of the sample. However, on the other side of the 

condom, Bracht was unable to include or exclude anyone as a 

contributor to the DNA present. He testified, “There is just a 

lot going on. The mixture was too complex to really determine 

how many people were in that mixture.”

Huerta alleges on appeal that the district court erred in 

allowing the State to present evidence regarding the DNA 

testing completed on the two condoms. Specifically, he argues 

that evidence that the first condom contained both C.G.’s and 

his DNA should have been excluded because the evidence was 

not relevant to the question of whether he had sexual contact with C.W. Additionally, he argues that evidence that the 
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second condom contained C.W.’s DNA, but that the remaining 

sample was “too complex” to reach any conclusions about 

other contributors of DNA, constituted “inconclusive” test 

results that “could cause the jury to speculate.” Brief for 

appellant at 17. Because Huerta failed to properly object to the 

DNA evidence regarding both condoms, we conclude that he 

has waived his right to appellate review of this issue.

[7] During Bracht’s testimony, Huerta objected to the admission of evidence about the condom that contained both his and 

C.G.’s DNA because the evidence was more prejudicial than 

probative. However, on appeal, he argues that the evidence 

should not have been admitted because it was not relevant 

to whether he had sexual contact with C.W. Essentially, he is 

asserting a different ground for his objection on appeal than he 

did at trial. On appeal, a defendant may not assert a different 

ground for his objection to the admission of evidence than was 

offered at trial. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 

267 (2012). Because at trial Huerta did not object to the admission of evidence about the condom that contained both his and 

C.G.’s DNA on the basis of relevance, he is precluded from 

arguing that assertion in this appeal.

[8] In addition, Huerta did not object at all to Bracht’s testimony regarding the DNA found on the second condom. It is 

well settled that failure to make a timely objection waives the 

right to assert prejudicial error on appeal. State v. Casterline, 

293 Neb. 41, 878 N.W.2d 38 (2016). We conclude that Huerta 

has waived appellate review regarding the district court’s decision to admit the DNA evidence.

2. Jury Instructions

Huerta alleges that the district court committed plain error 

in improperly instructing the jury regarding the elements of 

first degree sexual assault and the State’s burden of proof 

regarding those elements. Although we agree with Huerta that 

the district court did err in its instructions to the jury, we find 

that such error was harmless.
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(a) Standard of Review

[9-11] Whether jury instructions given by a trial court are 

correct is a question of law. State v. Abejide, 293 Neb. 687, 

879 N.W.2d 684 (2016). When reviewing questions of law, 

an appellate court resolves the questions independently of the 

conclusion reached by the lower court. Id. In an appeal based 

on a claim of an erroneous jury instruction, the appellant has 

the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of 

the appellant. State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 

211 (2016).

(b) Analysis

Jury instruction No. 7 provided to the jury informed it of 

the elements of the charge of first degree sexual assault. That 

instruction, as given to the jury in this case, read as follows:

The elements of the crime of first degree sexual 

assault are:

(1) That the Defendant, . . . Huerta, subjected C.W. to 

sexual penetration;

(2) That when [Huerta] subjected C.W. to sexual penetration he was a person nineteen years of age or older;

(3) That when [Huerta] subjected C.W. to sexual penetration she was a person at least 12 years of age but less 

than 16 years of age;

(4) That events occurred on or about April 3, 2016; 

and

(5) These events occurred in Buffalo County, Nebraska.

During the jury instruction conference, Huerta did not 

object to this instruction, nor did he offer an alternative 

instruction in its place. On appeal, however, he argues that the 

district court erred in giving jury instruction No. 7 because 

the instruction does not conform to the applicable pattern jury 

instruction and does not properly instruct the jury that the 

State has to prove each element of the crime charged beyond 

a reasonable doubt. We agree with Huerta’s basic contention 
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that the district court erred in failing to model jury instruction 

No. 7 after the applicable pattern instruction.

[12] As Huerta concedes in his brief on appeal, he did not 

object to jury instruction No. 7 during the trial. As such, we 

review only for plain error. Plain error may be found on appeal 

when an error unasserted or uncomplained of at trial, but 

plainly evident from the record, prejudicially affects a litigant’s 

substantial right and, if uncorrected, would result in damage to 

the integrity, reputation, and fairness of the judicial process. 

State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).

Whenever an applicable instruction may be taken from the 

Nebraska Jury Instructions, that instruction is the one which 

should usually be given to the jury in a criminal case. State v. 

Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011). NJI2d Crim. 

3.0 provides a pattern instruction for explaining to the jury the 

elements of the charged crime or crimes. Included in NJI2d 

Crim. 3.0, in addition to the elements of the charged crime, 

is a separate section which instructs the jury regarding the 

“Effect of Findings.” That section reads as follows: “If you 

decide that the state proved each element beyond a reasonable 

doubt then you must find the defendant guilty. Otherwise, you 

must find the defendant not guilty.”

In this case, the district court properly instructed the jury 

regarding the elements of first degree sexual assault in jury 

instruction No. 7. However, the court did not include in that 

instruction the separate section regarding the effect of the 

jury’s findings. Essentially, jury instruction No. 7 failed to 

inform the jury that it had to find that the State proved each 

element of first degree sexual assault beyond a reasonable 

doubt in order to find Huerta guilty of that crime. We agree 

with Huerta that the district court committed plain error in 

omitting that portion of the instruction. Nevertheless, we find 

that the court’s omission does not require reversal because such 

omission constituted a harmless error.

[13] Harmless error review looks to the basis on which 

the trier of fact actually rested its verdict; the inquiry is not 
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whether in a trial that occurred without the error a guilty verdict surely would have been rendered, but, rather, whether the 

actual guilty verdict rendered in the questioned trial was surely 

unattributable to the error. State v. Merchant, 288 Neb. 439, 

848 N.W.2d 630 (2014). Upon our review, we conclude that the 

district court’s error in giving jury instruction No. 7 is harmless because the other instructions given to the jury properly 

instructed it regarding the State’s burden to prove Huerta’s 

guilt beyond a reasonable doubt.

[14,15] In a criminal trial, the State must prove every element of the offense beyond a reasonable doubt, and a jury 

instruction violates due process if it fails to give effect to that 

requirement. See, e.g., Middleton v. McNeil, 541 U.S. 433, 124 

S. Ct. 1830, 158 L. Ed. 2d 701 (2004); Rose v. Clark, 478 U.S. 

570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986). Nonetheless, not 

every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question 

is whether the ailing instruction so infected the entire trial 

that the resulting conviction violates due process. Middleton 

v. McNeil, supra. To determine whether Huerta’s due process 

rights have been violated, the question that must be answered 

is whether there is a reasonable likelihood that the jury has 

applied the challenged instruction in a way that violates the 

Constitution. See id.

Our review of the case law in this area reveals that many 

courts have considered the effect of failing to instruct the 

jury regarding each and every element of the charged crime 

or failing to properly instruct the jury as to the meaning of 

each and every element of the charged crime. However, this 

is not the situation presented by this case. The district court 

properly instructed the jury regarding each element of Huerta’s 

first degree sexual assault charge. However, the court did 

not explicitly indicate that the jury had to find that the State 

proved each and every element of first degree sexual assault 

beyond a reasonable doubt in order to find Huerta guilty of 

that charge. We have been unable to find a similar case where 
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a court has failed to specifically delineate to the jury that the 

State must prove each element of the charged crime beyond a 

reasonable doubt.

[16] We have examined all of the jury instructions provided 

to the jury in this case. Notwithstanding the district court’s 

error in giving jury instruction No. 7, we conclude that the 

jury was properly instructed that it had to find the State proved 

each element of first degree sexual assault beyond a reasonable 

doubt in order to return a guilty verdict. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover 

the issues supported by the pleadings and the evidence, there 

is no prejudicial error necessitating reversal. State v. Merchant, 

288 Neb. 439, 848 N.W.2d 630 (2014). And the appellant 

has the burden to show that a questioned jury instruction was 

prejudicial or otherwise adversely affected a substantial right 

of the appellant. Id.

Jury instruction No. 2 stated:

As I told you at the beginning of the trial this is a 

criminal case in which the State of Nebraska has charged 

[Huerta] with first degree sexual assault. The fact that 

the State has brought this charge is not evidence of anything. The charge is simply an accusation, nothing more. 

[Huerta] has pleaded not guilty. He is presumed to be 

innocent. That means you must find him not guilty unless 

and until you decide that the State has proved him guilty 

beyond a reasonable doubt.

In addition, jury instruction No. 9 instructed the jury regarding 

the definition of reasonable doubt:

A reasonable doubt is one based upon reason and common sense after careful and impartial consideration of all 

the evidence. Proof beyond a reasonable doubt is proof so 

convincing that you would rely and act upon it without 

hesitation in the more serious and important transactions 

of life. However, proof beyond a reasonable doubt does 

not mean proof beyond all possible doubt.
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The district court also informed the jury prior to reading the 

jury instructions that “[n]o one of these instructions contain 

all of the law applicable to this case. You must consider each 

instruction in light of all the others.” This admonition is also 

contained in jury instruction No. 1.

[17] In addition to the jury instructions provided by the district court, we note that the State correctly informed the jury 

about its burden of proof during its closing argument:

So what I really want you to focus on right now is Jury 

Instruction No. 7. And that’s going to be the elements the 

State has to prove. As we talked about during my voir 

dire with you initially when we did the jury selection, 

if you can remember we talked about what the State’s 

burden is and it is to prove [Huerta] guilty beyond a 

reasonable doubt of the elements, not every fact that the 

witnesses say, okay. So let’s go over those elements and 

how the State has proven each one of those individually 

beyond a reasonable doubt.

Following this statement, counsel for the State explained in 

her argument to the jury how the burden of proof had been 

met as to each element of the charged offense. The U.S. 

Supreme Court noted in Middleton v. McNeil, 541 U.S. 433, 

124 S. Ct. 1830, 158 L. Ed. 2d 701 (2004), that a statement 

made by a prosecutor during closing argument can assist a 

jury in resolving any ambiguity in the jury instructions and 

may be considered particularly where, as here, the prosecutor’s argument resolves the ambiguity in favor of the 

defendant.

Based upon our reading of the entirety of the jury instructions provided in this case and considering the statements 

of the State in its closing argument, we find that the district 

court’s failure to include in jury instruction No. 7 a separate 

section informing the jury regarding the effect of its findings 

was harmless error. Read as a whole, the jury instructions 

properly inform the jury that it had to find that the State 

had proved all of the elements of first degree sexual assault 
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beyond a reasonable doubt in order to find Huerta guilty of 

that crime. To the extent the instructions were ambiguous 

in any way, the State’s clear and explicit explanation of its 

burden of proof during closing argument resolved that ambiguity. There is no reasonable likelihood that the jury applied 

jury instruction No. 7 in a way that violates the Constitution. 

Huerta cannot show he was prejudiced in any way by the 

district court’s omission of the separate section from jury 

instruction No. 7, and his guilty verdict was surely unattributable to the court’s error.

3. Ineffective Assistance

of Trial Counsel

On appeal, Huerta alleges that his trial counsel was ineffective in (1) failing to object to the testimony of Investigator 

Warrington regarding Huerta’s date of birth, (2) failing to file 

a motion in limine to exclude evidence of Huerta’s sexual contact with C.G., (3) failing to object to jury instruction No. 7, 

and (4) failing to object to the DNA evidence. We will address 

each of Huerta’s allegations of ineffective assistance of counsel 

below. First, however, we detail the relevant law which overlays our analysis of ineffective assistance of counsel claims 

which are made on direct appeal.

[18,19] Huerta is represented in this direct appeal by different counsel than the counsel who represented him during trial. 

However, we do note that appellate counsel did begin representing Huerta at his sentencing hearing. When a defendant’s 

trial counsel is different from his or her counsel on direct 

appeal, the defendant must raise on direct appeal any issue of 

trial counsel’s ineffective performance which is known to the 

defendant or is apparent from the record. Otherwise the issue 

will be procedurally barred. State v. Casares, 291 Neb. 150, 

864 N.W.2d 667 (2015). The fact that an ineffective assistance 

of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. State v. Mendez-Osorio, 297 

Neb. 520, 900 N.W.2d 776 (2017). The determining factor is 
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whether the record is sufficient to adequately review the question. Id.

[20] 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. 

Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).

When an ineffective assistance of counsel claim 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. State v. Casares, supra. General 

allegations that trial counsel performed deficiently or that trial 

counsel was ineffective are insufficient to raise an ineffective 

assistance claim on direct appeal and thereby preserve the 

issue for later review. Id.

Appellate courts have generally reached ineffective assistance of counsel claims on direct appeal only in those instances 

where it was clear from the record that such claims were without merit or in the rare case where trial counsel’s error was so 

egregious and resulted in such a high level of prejudice that 

no tactic or strategy could overcome the effect of the error, 

which effect was a fundamentally unfair trial. Id. An ineffective assistance of counsel claim made on direct appeal can be 

found to be without merit if the record establishes that trial 

counsel’s performance was not deficient or that the appellant 

could not establish prejudice. Id. See, also, State v. Filholm, 

287 Neb. 763, 848 N.W.2d 571 (2014).

(a) Failure to Object to Investigator 

Warrington’s Testimony

Huerta alleges that his trial counsel was ineffective in 

failing to object to the testimony of Investigator Warrington 

regarding Huerta’s date of birth. That testimony reads as 

follows:
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Q[:] And were you familiar with . . . Huerta from previous contacts with him?

A[:] Just aware from previous law enforcement. We 

have a database that contains reports, any type of a contact with the individual, which we were able to determine. 

And based upon his current address . . . being that of . . . 

Huerta with the date of birth of [March] 1980.

Q[:] And at that time then that would have made him a 

person over 19 years of age?

A[:] Correct.

Huerta contends that trial counsel failed to make a foundational objection to Investigator Warrington’s testimony and 

that if counsel had done so, the objection would have been 

sustained and the State would not have had any evidence to 

prove that Huerta was 19 years of age or older at the time of 

the offense.

Upon our review, we conclude that the record is insufficient to address Huerta’s claim, because it does not contain 

any indication of why counsel did not object to Investigator 

Warrington’s testimony on foundational grounds or whether the 

decision to not object was part of counsel’s trial strategy.

(b) Failure to Make Motion in 

Limine Regarding Evidence 

of Sexual Contact Between 

Huerta and C.G.

Huerta alleges that his trial counsel was ineffective in failing to file a motion in limine to exclude evidence of Huerta’s 

sexual contact with C.G. at trial. Huerta acknowledges that his 

trial counsel did object to such evidence during the trial, but 

he argues that the issue “would have been better presented at a 

motion in limine which would have given the Court more time 

to determine if the sexual contact/intercourse between [Huerta] 

and C.G. was inextricably intertwined to the sexual assault 

of C.W.” Brief for appellant at 26. Essentially, Huerta argues 

that had trial counsel presented his objection to this evidence 
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to the district court prior to trial, such objection would have 

been successful.

Huerta’s allegation of ineffective assistance of counsel has 

no merit. As we discussed more thoroughly above, the district 

court did not err in admitting evidence of Huerta’s sexual 

contact with C.G. into evidence, because such evidence was 

relevant and was more probative than prejudicial. Had trial 

counsel filed a motion in limine regarding his objection to this 

evidence, such motion would have failed. Whether the objection was made prior to or during the State’s presentation of 

evidence, the result would have been the same. The evidence 

was properly admitted.

(c) Failure to Object to 

Jury Instruction No. 7

Huerta alleges that his trial counsel was ineffective in failing to object to jury instruction No. 7 and in failing to offer 

NJI2d Crim. 3.0 as an alternative to jury instruction No. 7. 

Huerta’s allegation of ineffective assistance of trial counsel 

has no merit. As we discussed above, although the district 

court did err in its giving of jury instruction No. 7 without 

including the separate section informing the jury about the 

effect of its findings, we concluded that such error was harmless. Accordingly, even if counsel had objected to the instruction or had offered an alternative instruction, such action 

would not have had any effect on the ultimate outcome of 

the trial. Huerta’s guilty verdict was not attributable to the 

district court’s error or to his trial counsel’s failure to object. 

Simply stated, Huerta cannot show he was prejudiced by 

counsel’s actions.

(d) Failure to Object 

to DNA Evidence

Finally, Huerta alleges that his trial counsel was ineffective 

in failing to properly object to the DNA evidence offered by 

the State. Our record on appeal is sufficient to address Huerta’s 

claim. The record before us does not support a claim of 
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ineffective assistance of counsel regarding the failure to object 

to the DNA evidence.

Huerta argues that trial counsel should have made a relevance objection to evidence that both his DNA and C.G.’s 

DNA were found on a condom located in a trash can in 

McGregor’s bedroom. He contends that this evidence is not 

relevant to the question of whether he had sexual contact with 

C.W. We disagree. Huerta concedes in his brief on appeal that 

he had sexual contact with C.G. on the evening of April 3, 

2016, when he states, “[T]here is no question that [Huerta] 

had sexual contact/intercourse with C.G. that night. So no surprise that [Huerta’s] DNA would be found in the semen on the 

inside of that condom.” Brief for appellant at 18. This statement is in direct contrast to Huerta’s statements to Investigator 

Warrington that he did not have sexual contact with either C.W. 

or C.G. In addition, it is in contrast to the position he seemingly took at trial.

Contrary to Huerta’s assertions on appeal, evidence that both 

Huerta’s DNA and C.G.’s DNA were on the condom was relevant to disprove Huerta’s original version of what happened 

on April 3, 2016. In addition, as we discussed above, it was 

relevant to support C.W.’s testimony about all of the events 

which transpired on that date. Accordingly, any objection by 

trial counsel to this evidence on relevance grounds would not 

have been successful and trial counsel was not ineffective for 

failing to raise an unsuccessful objection.

Huerta also argues that trial counsel should have objected 

to inconclusive DNA evidence which was found on the condom where C.W.’s DNA was identified. Huerta argues that 

the results of the DNA testing of that condom “were so inconclusive that they could cause the jury to speculate.” Brief for 

appellant at 17. Based on our review of Bracht’s testimony 

regarding the inconclusive DNA evidence, we conclude that 

Huerta cannot show that he was prejudiced by the admission 

of the testimony and that, as a result, he cannot demonstrate he 

received ineffective assistance of counsel.
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As we discussed above, Bracht testified that his analysis 

of the condom indicated that C.W.’s DNA was present on one 

side of the condom. Bracht did indicate that on the side of the 

condom where C.W.’s DNA was present, Huerta was excluded 

as a contributor of the sample. However, on the other side of 

the condom, Bracht was unable to include or exclude anyone 

as a contributor to the DNA present. He testified, “There is 

just a lot going on. The mixture was too complex to really 

determine how many people were in that mixture.” Bracht also 

testified that the presence of semen was found on the condom 

with C.W.’s DNA.

We find that this evidence is relevant, in that it supports 

both C.W.’s testimony and C.G.’s testimony that C.W. had 

sexual intercourse in McGregor’s bedroom on the evening of 

April 3, 2016. We also find that this evidence is more probative than prejudicial. However, we do note that the weight of 

the evidence is decreased somewhat due to the inability to 

identify the male contributor of the semen. We also note that 

to some extent, Bracht’s testimony was exculpatory because 

he was able to completely exclude Huerta as a contributor of 

DNA as to one side of the condom. To the extent Bracht was 

unable to give any identifying information about the other side 

of the condom, there is no indication of any kind that suggested that Huerta may be a contributor on that side or that 

would lead the jury to insinuate that he was a contributor to 

the mixture of DNA. We conclude that Huerta cannot show 

that he was prejudiced by the admission of this DNA evidence. 

As such, he cannot demonstrate that he received ineffective 

assistance of trial counsel in this regard.

V. CONCLUSION

Upon our review, we affirm Huerta’s conviction for first 

degree sexual assault. As to Huerta’s claims of ineffective 

assistance of trial counsel, we find that he was not denied 

effective assistance of counsel when counsel failed to make 

a motion in limine regarding evidence of sexual contact 
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between Huerta and C.G., failed to object to jury instruction 

No. 7, or failed to object to the DNA evidence presented by 

the State. We find that the record is insufficient to review 

whether trial counsel was ineffective when he failed to object 

to Investigator Warrington’s testimony regarding Huerta’s date 

of birth.

Affirmed.

Welch, Judge, concurring.

While I concur in the result reached by the majority, I 

respectfully disagree with the reasoning touching on the jury 

instruction issue.

In Middleton v. McNeil, 541 U.S. 433, 437, 124 S. Ct. 1830, 

158 L. Ed. 2d 701 (2004), the U.S. Supreme Court held:

In a criminal trial, the State must prove every element of the offense, and a jury instruction violates due 

process if it fails to give effect to that requirement. . 

. . Nonetheless, not every ambiguity, inconsistency, or 

deficiency in a jury instruction rises to the level of a due 

process violation. The question is “‘whether the ailing 

instruction . . . so infected the entire trial that the resulting conviction violates due process.’” . . . “‘[A] single 

instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall 

charge.’” . . . If the charge as a whole is ambiguous, the 

question is whether there is a “‘reasonable likelihood that 

the jury has applied the challenged instruction in a way’ 

that violates the Constitution.”

(Citations omitted.)

In Middleton, the U.S. Supreme Court found that the combined instructions were, at worst, ambiguous because they were 

internally inconsistent. In response, the State of California 

argued that the prosecutor cured any potential ambiguity by 

arguing a correct statement of the law to the jury. The U.S. 

Supreme Court noted that the Ninth Circuit “faulted the state 

court for relying on the prosecutor’s argument, noting that 
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instructions from a judge are presumed to have more influence than arguments of counsel.” Middleton, 541 U.S. at 438. 

In response, the U.S. Supreme Court held:

But this is not a case where the jury charge clearly 

says one thing and the prosecutor says the opposite; the 

instructions were at worst ambiguous because they were 

internally inconsistent. Nothing in Boyde [v. California, 

494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316 

(1990),] precludes a state court from assuming that counsel’s arguments clarified an ambiguous jury charge. This 

assumption is particularly apt when it is the prosecutor’s argument that resolves an ambiguity in favor of 

the defendant.

Middleton, supra (emphasis in original).

I agree with the majority that the omission of NJI2d Crim. 

3.0’s “Effect of Findings” from jury instruction No. 7 which 

sets forth the State’s burden of proof as to each and every 

element of the crime rendered that instruction, in isolation, 

an erroneous jury instruction. When read as a whole with all 

instructions, the district court properly instructed the jury that 

the State had the burden of proof beyond a reasonable doubt 

for the offense, but left out that the burden attached to each and 

every element. I disagree with the majority that the combined 

instructions “properly instructed that [the jury] had to find the 

State proved each element of first degree sexual assault beyond 

a reasonable doubt in order to return a guilty verdict.” Without 

reference to the burden attaching to each and every element, 

the instructions were ambiguous. That said, the instructions as 

a whole, taken together with the prosecutors’ argument to the 

jury which clearly delineated that the State’s burden attached 

to each and every element of the offense, left no reasonable 

likelihood that the jury applied the challenged instructions in 

a way that violates the Constitution. As such, I concur with 

the majority that the judgment of the district court should be 

affirmed as to this issue, and I join with the court as to the 

remainder of the majority opinion.