- 958 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

State of Nebraska, appellee, v. 

Douglas H. Anders, appellant.

___ N.W.2d ___

Filed July 15, 2022. No. S-21-413.

1. Effectiveness of Counsel: Appeal and Error. Assignments of error 

on direct appeal regarding ineffective assistance of trial counsel must 

specifically allege deficient performance, and an appellate court will not 

scour the remainder of the brief in search of such specificity.

2. Convictions: Appeal and Error. In an appeal of a criminal conviction, 

an appellate court reviews the evidence in a light most favorable to the 

prosecution.

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. Trial: Convictions: Evidence: Appeal and Error. An appellate court 

will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the 

State, is sufficient to support that conviction. In making this determination, an appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, evaluate explanations, or reweigh 

the evidence presented, which are within a fact finder’s province for 

disposition. Instead, the relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a 

reasonable doubt.

5. Sexual Assault: Testimony: Proof. The State is not required to corroborate a victim’s testimony in cases of first degree sexual assault; if 

believed by the finder of fact, the victim’s testimony alone is sufficient.

6. Witnesses: Appeal and Error. It is not in the purview of the appellate 

court to determine the credibility of witnesses on appeal, as such determinations are for the finder of fact.

Nebraska Supreme Court Online Library

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

07/28/2022 07:06 AM CDT
- 959 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

7. Statutes: Intent. When interpreting a statute, the starting point and 

focus of the inquiry is the meaning of the statutory language, understood 

in context.

8. Statutes: Appeal and Error. Statutory language is to be given its plain 

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

direct, and unambiguous.

9. Statutes. It is not within the province of the courts to read meaning into 

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

statute.

10. Sexual Assault. Under Neb. Rev. Stat. § 28-318(8)(a)(iv) (Cum. Supp. 

2020), a victim does not consent to sexual penetration if the consent, if 

any was actually given, was the result of the actor’s deception as to the 

nature or purpose of the act on the part of the actor.

11. Sexual Assault: Words and Phrases. The word “deception,” as used in 

Neb. Rev. Stat. § 28-318(8)(a)(iv) (Cum. Supp. 2020), has a plain and 

ordinary meaning: words or conduct, or both words and conduct, causing the victim to believe what is false.

12. Criminal Law: Statutes: Appeal and Error. In strictly construing 

penal statutes, an appellate court does not supply missing words or sentences to make clear that which is indefinite, or to supply that which is 

not there.

13. Convictions: Evidence: Appeal and Error. Where there is sufficient 

evidence to support a conviction under one theory of guilt, an appellate 

court need not consider whether the evidence was sufficient to support 

the alternative theory or theories of guilt.

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

Error. When a defendant’s trial counsel is different from his or her 

counsel on direct appeal, the defendant must raise on direct appeal any 

issue of trial counsel’s ineffective performance which is known to the 

defendant or is apparent from the record; otherwise, the issue will be 

procedurally barred in a subsequent postconviction proceeding.

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

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

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

whether the record is sufficient to adequately review the question.

16. Effectiveness of Counsel: Proof. Generally, 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 his or her counsel’s performance was deficient and that this 

deficient performance actually prejudiced the defendant’s defense.
- 960 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

17. ____: ____. To show that counsel’s performance was deficient, a defend

ant must show that counsel’s performance did not equal that of a lawyer 

with ordinary training and skill in criminal law.

18. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice, the defendant must demonstrate a reasonable probability that but 

for counsel’s deficient performance, the result of the proceeding would 

have been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

19. Trial: Effectiveness of Counsel: Presumptions: Appeal and Error. In 

determining whether trial counsel’s performance was deficient, there is 

a strong presumption that counsel acted reasonably.

20 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.

21. 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.

22. Constitutional Law: Criminal Law: Jury Trials: Appeal and Error.

Whether cumulative error deprived a criminal defendant of his or her 

Sixth Amendment right to a trial by an impartial jury presents a question 

of law to be reviewed de novo.

23. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

24. Effectiveness of Counsel. A pro se party is held to the same standards 

as one who is represented by counsel.

25. Trial: Attorneys at Law. The decision whether or not to object has long 

been held to be part of trial strategy.

26. Effectiveness of Counsel: Trial. When reviewing claims of alleged 

ineffective assistance of counsel, trial counsel is afforded due deference 

to formulate trial strategy and tactics.

27. Effectiveness of Counsel: Presumptions: Appeal and Error. There 

is a strong presumption that counsel acted reasonably, and an appellate 

court will not second-guess reasonable strategic decisions.

28. Constitutional Law: Jury Trials: Appeal and Error. Although one or 

more trial errors might not, standing alone, constitute prejudicial error, 

their cumulative effect may be to deprive the defendant of his or her 

constitutional right to a public trial by an impartial jury.

29. Trial: Evidence: Presumptions: Appeal and Error. In a case tried to 

the court without a jury, there is a presumption that the trial court, in 
- 961 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

reaching its decision, considered only evidence that is competent and 

relevant, and this court will not overturn such a decision where there 

is sufficient material, competent, and relevant evidence to sustain the 

judgment.

30. Sentences: Appeal and Error. A sentence imposed within the statutory 

limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.

31. Constitutional Law: Criminal Law: Sentences. The constitutional 

protection against cruel and unusual punishment does not require strict 

proportionality between crime and sentence, but, rather, forbids only 

extreme sentences that are grossly disproportionate to the crime.

Appeal from the District Court for Douglas County: Timothy 

P. Burns, Judge. Affirmed.

Douglas H. Anders, pro se, and Timothy S. Noerrlinger for 

appellant.

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

Klein, for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

Douglas H. Anders appeals from his conviction and sentence for first degree sexual assault. At the conclusion of a 

bench trial, the court found that Anders exploited his position 

as K.G.’s Olympic trainer and sexually penetrated her through 

deception and coercion. Anders primarily challenges the sufficiency of the evidence to support his conviction. He also 

asserts that his sentence was excessive and that his trial counsel was ineffective. Finding no merit to his appeal, we affirm.

II. BACKGROUND

The State charged Anders with first degree sexual assault, 

a Class II felony, pursuant to Neb. Rev. Stat. § 28-319(1) 

(Reissue 2016). The State alleged that Anders sexually 
- 962 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

penetrated K.G. under the guise that it was necessary to aid 

in her physical recovery from athletic training.

A bench trial was held where the State and Anders offered 

evidence. In this section, we summarize testimony and facts 

pertinent to the instant appeal, viewed in the light most favorable to the State. In the analysis section below, we provide 

additional facts where necessary.

1. State’s Evidence

The State offered the testimony of multiple witnesses, 

including K.G., K.G.’s therapist, K.G.’s friends and family, 

M.C. (another woman who testified that she was sexually 

assaulted by Anders), and criminal investigators.

(a) K.G.’s Testimony

K.G. testified that Anders trained her at his commercial gym 

to become an Olympic weightlifter. During K.G.’s training, 

Anders performed “adjustments” to her, claiming that they 

would alleviate the pain and soreness she felt in her pelvis and 

legs. Anders would “adjust” K.G. by inserting his fingers into 

her vagina while she lay on a chiropractic bed.

K.G. testified that she was not yet 16 years old the first time 

that Anders performed an “adjustment” on her. K.G. remembered that her mom “pick[ed her] up” from the gym that day, 

because she “couldn’t drive” yet. Anders was 35 years her 

senior. K.G. was uncomfortable and embarrassed by Anders’ 

actions, but she did not protest, because she trusted him and 

wanted to alleviate her pain.

Anders convinced K.G. to not tell anyone about the “treatment,” because he claimed that although it was commonplace 

in the sports world, it was “taboo” to talk about it to others. 

Accordingly, K.G. generally kept Anders’ conduct a secret 

while under his training. K.G. never went to law enforcement 

and only discussed being sexually penetrated by Anders with a 

friend and her former boyfriend.

Anders’ “adjustments” progressed into what he called “sports 

massage[s],” where he would rub K.G.’s inner thighs. Anders 
- 963 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

told K.G. that there was a muscle in her thigh that was affecting the way her foot turned while lifting and that the “sports 

massage” was necessary to increase blood flow. These massages ended with Anders’ touching K.G.’s genital area. K.G. 

testified that Anders would often have an erection while massaging her. Again, K.G. was uncomfortable; but because she 

believed his explanation, she did not protest.

Anders’ conduct advanced further. Eventually, Anders started 

inserting foreign objects into K.G.’s vagina to “stimulat[e]” 

recovery. This progressed over time to penetrating her vagina 

with his penis.

K.G. testified that she initially “refuse[d] any type of penetration by [Anders] and, usually, that was a boundary that was 

pushed.” According to K.G., no matter how many times she 

protested being sexually penetrated by Anders, he would insist 

that it was necessary for her “recovery” until she just “caved 

and just submitted to [it].”

Several times, K.G. expressed her desire that the touching 

“not be part of the training” and that she “still want[ed] to be 

an athlete and do weightlifting[,] but [she didn’t] want to continue with the other stuff.” However, when K.G. would bring 

this desire to Anders, he would get upset and threaten to stop 

training her or kick her out of his gym until she begged him 

to return. K.G. always begged to return, because Anders had 

manipulated her into believing that she would not achieve her 

Olympic dreams if he did not train her.

K.G. testified that Anders manipulated her in other ways 

as well. Anders isolated K.G. from her social life and 

demanded that she focus her attention on training. Anders 

told K.G. that she needed to “get more focused, more serious” about her training and “[could not] necessarily go out 

Friday nights because [she] had to be in the gym to train on 

Saturday.” When K.G. was not at his gym, Anders would 

text her, asking if she was “‘home yet.’” Consequently, K.G. 

stopped socializing with her friends, because she “had to be 

serious and focused.” It came to the point where she would 
- 964 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

“first ask him if [she] could go.” K.G. also began working at 

the gym.

Anders’ actions became “less adjustment, less massage, 

more just intercourse whenever he wanted, whenever it was 

convenient, whenever there was an opportunity.” K.G. testified that the sexual intercourse became such a “normal part of 

[her] being at the gym” that she would initiate it with Anders 

on occasion.

After 8 years, K.G. finally stopped training under Anders 

and permanently left the gym. K.G. then told her parents that 

Anders had been sexually abusing her and sought therapy.

Anders’ conduct was finally brought to the attention of 

law enforcement when K.G.’s therapist complied with his 

legal obligation to report sexual abuse to authorities. After 

law enforcement launched an investigation into Anders, K.G. 

talked to investigators and gave them the cell phones that she 

used during and after her time at Anders’ gym.

(b) M.C.’s Testimony

M.C. testified to similar conduct by Anders directed toward 

her. M.C. also trained and worked at Anders’ gym. M.C. 

claimed that he had sexually assaulted her.

Before trial, Anders filed a motion in limine to bar M.C. 

from testifying under Neb. Rev. Stat. § 27-414 (Reissue 2016). 

The court held a hearing where M.C. testified regarding those 

events. After the hearing, the court overruled Anders’ motion 

in limine and allowed M.C. to testify at trial. At trial, Anders 

did not renew his objection when the State called M.C. 

to testify.

At trial, M.C. testified that Anders performed some “adjustments or chiropractic measures” on her for pain that she was 

suffering. Anders never inserted his fingers into M.C.’s vagina 

during these sessions. However, M.C. suffered a broken tailbone at one point in her training and Anders claimed he could 

“fix [her] broken tailbone” by inserting his fingers into her 

vagina to “correct” it.
- 965 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

M.C. was skeptical of Anders’ claim, because he was not a 

doctor. Anders responded to M.C.’s skepticism by asking to do 

an initial examination on her to see if treating her tailbone was 

“even possible.”

After M.C. agreed to the initial procedure, Anders placed 

his hands on her inner thigh near her genital areas, moved his 

hands up to “where [her] leg connects to [her] pelvis,” and 

moved his hands over her breasts before ending the procedure. 

Anders informed her that he could “fix” her tailbone, but M.C. 

told him she needed time to think it over.

However, M.C. never decided whether to consent to Anders’ 

“treatment,” because she was permanently “kicked out of the 

gym.” A few days after Anders’ examination of M.C., K.G. 

confronted her about arriving late to the gym. M.C. discussed 

the matter with K.G. in a private room, where she explained 

she believed Anders was manipulating K.G. Anders then “burst 

in” the room and told M.C., “that’s it, you’re out.” M.C. left 

and never went back to the gym.

(c) Investigators’ Testimony

The State called multiple investigators to detail their investigation into Anders and the collection of evidence presented in 

the case. Some of the most notable testimony by the investigators regarded K.G. and Anders’ cell phone communications.

An investigator testified to receiving phone records from 

K.G.’s phone carriers and recovering two phones from K.G. 

and one phone from Anders. The phone carriers’ records listed 

K.G.’s phone number and stated that 62.56 percent of all communications to K.G.’s phone number were either to or from 

Anders’ phone number. Anders provided the investigator with 

his number.

A second investigator testified that he used computer software to download text messages from two phones owned by 

K.G. and one phone owned by Anders. The phones matched 

K.G.’s and Anders’ phone numbers. The investigator explained 

that some text messages could not be retrieved, because they 
- 966 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

had been deleted. However, the investigator was able to recover 

some messages that were marked for deletion but had not yet 

been removed from the phones’ databases.

The State introduced the text messages that investigators 

recovered as exhibits. As an example, Anders texted K.G. 

that “I need some,” to which she responded, “I’d give some 

but my tailbone [is] sore.” Another text Anders sent to K.G. 

stated, “No candy touching my LIPS . . . UNLESS [it’s] ON 

YOURS.” Yet another text message included K.G.’s mentioning taking a nap with Anders after “bang[ing].”

(d) Other Witnesses

K.G.’s friend and her former boyfriend testified that while 

K.G. was still training under Anders, she told them about his 

sexual abuse. K.G.’s father also testified. While K.G.’s father 

was not aware of the sexual abuse until after she left the 

gym, he confirmed her general timeline of events (her training schedule, the amount of time she spent at the gym, her 

informing him of the abuse after she permanently left the gym, 

her decision to seek counseling, et cetera). Further, Anders’ 

ex-business partner testified that he saw Anders and K.G. kissing in the gym’s spa area.

At the conclusion of the State’s case, Anders moved to dismiss the charge against him, arguing the State failed to provide 

sufficient evidence to support his conviction. The court overruled Anders’ motion.

2. Anders’ Defense

Anders testified in his defense and presented multiple 

witnesses.

(a) Anders’ Testimony

Anders denied ever performing any sexual acts on K.G. 

or M.C. and attacked the credibility of the State’s witnesses. 

Anders asserted that K.G. had mental issues that caused her 

to fabricate her allegations, claiming that she made them up 

after seeing reports that a doctor who was associated with 
- 967 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

U.S. “gymnastic programs that were Olympic-certified” had 

sexually abused female athletes. Anders acknowledged that he 

was not qualified to make any medical response to a medical 

report. Nevertheless, he contended that he had obtained tests 

results from K.G.’s blood showing she was schizophrenic. 

(Anders did not introduce the test results or the testimony of 

the clinical psychologists with whom he claimed to have discussed her test results.) Further, Anders insisted that K.G.’s 

friend and her former boyfriend were lying that she informed 

them of his sexual abuse years before the reports against the 

Olympic doctor came to light. Anders also asserted the M.C. 

was lying and had mental issues.

Anders attempted to explain away many of the text messages that investigators retrieved from his and K.G.’s phones. 

For instance, Anders claimed that the “candy touching [my] 

lips” message was regarding candy-flavored lip balm that he 

was using to treat a cold sore. Anders also asserted that K.G. 

could not have been talking about him in the message that 

referred to taking a nap after “bang[ing],” because he never 

napped in the office. Regarding other messages, he simply 

denied ever sending or receiving them.

Finally, Anders claimed that his ex-business partner misinterpreted the kiss that he gave K.G. Anders stated he “kissed 

[K.G.] on the cheek” after she “missed . . . a personal best.” 

Anders maintained that he would regularly do the same thing 

for any of his clients—including men.

(b) Character Witnesses

Anders presented multiple witnesses who either worked at 

or attended his gym. The witnesses testified that they never 

saw Anders sexually abuse K.G. and did not believe he would 

do so based on their interactions with him. However, when 

confronted with K.G.’s and Anders’ text messages, the witnesses were surprised and could not reasonably justify the text 

messages’ explicit contents.
- 968 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

After resting Anders’ case, his trial counsel renewed his 

motion to dismiss. The court overruled the motion.

3. Verdict and Sentencing

Acting as the trier of fact, the court found Anders guilty of 

one count of first degree sexual assault. The court stated that 

Anders and K.G. had a lengthy sexual history in which he 

sexually penetrated her without her consent on multiple occasions “through coercion, at times it was through deception, and 

at times it was through both coercion and deception.” The court 

also made explicit witness credibility determinations, finding 

K.G. credible and Anders not credible. Anders filed a motion 

for new trial, which the court overruled.

At Anders’ sentencing hearing, the court listened to K.G.’s 

victim statement and reviewed the presentence investigation 

report. The court then stated to Anders:

[I]t’s very disturbing that you were 50 or so when [K.G.], 

a teenager — and you started a sexual relationship with 

her. You were in a position of authority, command, influence, and yet you manipulated and isolated her. Despite 

overwhelming evidence of your guilt, your only response 

to the conviction is, I did not have any sexual contact 

with [her].

The court sentenced Anders to a term of 25 to 30 years’ 

imprisonment.

Anders filed a timely appeal and a petition to bypass the 

Nebraska Court of Appeals. We denied Anders’ petition to 

bypass, but moved the case to our docket. 1

4. Changes in Counsel

Anders has changed his counsel three times during the course 

of his proceedings: (1) before trial; (2) after the court issued 

its verdict, but before Anders was sentenced; and (3) after 

Anders’ notice of appeal was filed, but before oral arguments 

1 See Neb. Rev. Stat. § 24-1106(2) and (3) (Cum. Supp. 2020).
- 969 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

were presented. In total, Anders was represented by three different trial counsel and two appellate counsel. Because Anders 

assigns ineffective assistance of counsel, we clarify the time 

periods during which each counsel represented him.

Anders retained his initial counsel—who represented him 

during the discovery portion of his proceedings, including the 

depositions of K.G. and her mother. Anders terminated his 

initial counsel and retained his primary counsel. The court sustained Anders’ initial counsel’s motion to withdraw.

Anders’ primary counsel represented him during the remainder of the discovery proceedings and at trial. At Anders’ sentencing hearing, Anders “releas[ed]” his primary counsel from 

representing him. The court allowed Anders’ primary counsel 

to withdraw.

Anders then retained his postverdict counsel, who presented 

arguments in support of his motion for new trial, represented 

him at his sentencing hearing, and filed his notice of appeal. 

By filing Anders’ notice of appeal, his postverdict counsel 

became his appellate counsel. However, Anders filed a pro 

se “Notice of Termination of Appellant’s Counsel” with the 

Court of Appeals, stating that he notified his counsel that he 

was “terminat[ed] effective[] immediately” and intended to 

retain new appellate counsel. Anders’ postverdict counsel filed 

a motion to withdraw, which the Court of Appeals held under 

advisement and directed the counsel to file a motion to withdraw with the district court. Anders’ postverdict counsel then 

filed a motion to withdraw with the district court, which the 

court sustained. After receiving a supplemental transcript, the 

Court of Appeals reconsidered and sustained Anders’ postverdict counsel’s motion to withdraw.

Anders filed his appellate brief and petition to bypass 

pro se. Anders then retained new appellate counsel—who 

entered a written appearance, filed a reply brief, and presented oral argument to this court. At oral argument, appellate 

counsel explained that he was retained “to orally argue the 

[appeal] for [Anders].” However, we observe that appellate 
- 970 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

counsel’s written appearance did not specify a limited scope of 

representation. 2

After oral arguments were presented, and while the appeal 

was under submission, Anders filed a written notice that he had 

discharged his appellate counsel. In that notice, he reiterated 

his reliance upon the assignments of error in his pro se brief.

III. ASSIGNMENTS OF ERROR

Anders assigns three categories of error, which we combine 

and restate. Anders assigns that the evidence was insufficient 

to support his conviction. He also assigns that he received 

an excessive and unconstitutional sentence. Finally, Anders 

assigns that he received ineffective assistance of trial counsel.

[1] We have held that assignments of error on direct appeal 

regarding ineffective assistance of trial counsel must specifically allege deficient performance, and an appellate court will 

not scour the remainder of the brief in search of such specific

ity. 3 Therefore, we quote Anders’ assignments of error regarding ineffective assistance of counsel.

Anders assigns his trial counsel was ineffective in:

A. Failing to insist upon expert testimony as to psychological coercion[;]

B. Failing to argue [sic] reliance upon deception as to 

the nature or purpose of a sexual act must be objectively 

reasonable[;]

C. Failing to object to inadmissible single, double, and 

triple hearsay[;]

D. Failing to object to unreliable testimony by [M.C.] 

as to an allegedly prior bad act that was dissimilar, did 

not constitute a crime of sexual assault under [Neb. Rev. 

Stat. § 27-413 (Reissue 2016)], and was unduly prejudicial under [Neb. Rev. Stat. § 27-403 (Reissue 2016);]

E. Fail[ing] to impeach [his ex-business partner] about 

his previous felony convictions, to object to his testimony 

2 See Neb. Ct. R. of Prof. Cond. § 3-501.2(d) (rev. 2016).

3 State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
- 971 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

as improper evidence of prior bad acts, to object to defense 

witnesses being questioned about [his] testimony, and the 

financial windfall [he] would derive from [Anders’] being 

convicted[;]

F. Failing to object to inadmissible text messages from 

[Anders’] and [K.G.’s] cell phones[;]

G. Fail[ing] to cross examine [K.G.] about the inconsist

ent time periods of [Anders’] alleged misconduct between 

her trial testimony and previous sworn statements[;]

H. Fail[ing] to seek the counseling records of [K.G.’s 

therapist] under [State v. Trammell,

 4] to cross examine 

[him] thereon, and to retain a defense expert to determine 

and testify if [K.G.] was suffering from false memory 

syndrome, and whether or not [K.G.’s] reliance upon any 

deception by [Anders] was reasonable and/or a result of 

psychological coercion.

Anders also assigns his trial counsel’s “collective ineffectiveness in failing to object to prejudicial inadmissible evidence 

constitutes plain error under the cumulative error doctrine.”

IV. STANDARD OF REVIEW

[2,3] In an appeal of a criminal conviction, we review the 

evidence in a light most favorable to the prosecution. 5 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. 6

Additional standards will be set forth in the analysis section.

V. ANALYSIS

1. Sufficiency of Evidence

Anders assigns that the court erred in finding that there was 

sufficient evidence to support his conviction for first degree 

sexual assault. Anders presents two arguments. First, he argues 

4 State v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (1989).

5 State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).

6 Id.
- 972 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

the evidence was insufficient to prove that he sexually pene

trated K.G., because the court should not have considered her 

testimony. Anders also argues the evidence was insufficient 

to prove that he induced K.G.’s consent through deception 

or compelled her to submit through coercion. Each will be 

addressed in turn.

(a) Standard of Review

[4] An appellate court will sustain a conviction in a bench 

trial of a criminal case if the properly admitted evidence, 

viewed and construed most favorably to the State, is sufficient 

to support that conviction. In making this determination, we 

do not resolve conflicts in the evidence, pass on the credibility 

of witnesses, evaluate explanations, or reweigh the evidence 

presented, which are within a fact finder’s province for disposition. Instead, the relevant question 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

(b) Statutes

Section 28-319(1) creates the offense at issue here. It states: 

“Any person who subjects another person to sexual penetration 

. . . without the consent of the victim . . . is guilty of sexual 

assault in the first degree.” 8

For purposes of that offense, Neb. Rev. Stat. § 28-318 (Cum. 

Supp. 2020) defines “[s]exual penetration” and “[w]ithout consent.” This definitional statute states in part:

(6) Sexual penetration means sexual intercourse in its 

ordinary meaning, . . . , or any intrusion, however slight, 

of any part of the actor’s or victim’s body or any object 

manipulated by the actor into the genital or anal openings 

of the victim’s body which can be reasonably construed as 

being for nonmedical, nonhealth, or nonlaw enforcement 

7 State v. Taylor, 310 Neb. 376, 966 N.W.2d 510 (2021).

8 § 28-319(1).
- 973 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

purposes. Sexual penetration shall not require emission 

of semen.

. . . .

(8) Without consent means:

(a)(i) The victim was compelled to submit due to the 

use of force or threat of force or coercion, or (ii) the victim expressed a lack of consent through words, or (iii) the 

victim expressed a lack of consent through conduct, or 

(iv) the consent, if any was actually given, was the result 

of the actor’s deception as to the identity of the actor or 

the nature or purpose of the act on the part of the actor;

(b) The victim need only resist, either verbally or 

physically, so as to make the victim’s refusal to consent 

genuine and real and so as to reasonably make known to 

the actor the victim’s refusal to consent[.] 9

(c) Discussion

(i) K.G.’s Testimony

Anders’ first sufficiency argument asserts that the court 

should not have considered K.G.’s testimony, because it was 

“uncorroborated and materially inconsistent.” 10 And without 

K.G.’s testimony, he argues, the evidence was insufficient to 

support his conviction.

Anders acknowledges that Neb. Rev. Stat. § 29-2028 (Reissue 

2016) “did away with the [victim] corroboration requirement in 

sexual assault cases.” 11 However, Anders asserts that § 29-2028 

should not apply when the victim’s testimony is inconsistent 

with prior statements. Anders alleges that K.G.’s trial testimony was materially inconsistent with the affidavit she used 

to seek a protection order against him and with her pretrial 

deposition. In that testimony, Anders claims, K.G. stated that 

he never sexually penetrated her before her 16th birthday.

9 § 28-318(6) and (8) (emphasis supplied).

10 Brief for appellant at 33.

11 Id.
- 974 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

Although K.G.’s deposition appears in our record, her protection order application does not. But Anders’ argument fails 

for two more basic reasons.

[5] First, it contradicts the corroboration statute. Since 1989, 

the State has not been required to corroborate a victim’s testimony in cases of first degree sexual assault; if believed by the 

finder of fact, the victim’s testimony alone is sufficient. 12

[6] Second, it disregards our standard of review. It is not 

in the purview of the appellate court to determine the credibility of witnesses on appeal, as such determinations are for 

the finder of fact. 13 We decline to resolve evidentiary conflicts, 

pass on witness credibility, evaluate explanations, or reweigh 

the evidence.

(ii) Without Consent

Anders’ second insufficiency argument relies upon the statutory definitions of the phrase “without consent.” Anders argues 

the evidence was insufficient to prove that he induced K.G.’s 

consent through deception or compelled her to submit through 

coercion.

Because the first time that Anders sexually penetrated K.G. 

was after he claimed he needed to do so to “adjust” her pelvis, 

we begin with deception.

a. Deception

Anders argues there was insufficient evidence to prove that 

he used deception to sexually penetrate K.G. He contends that 

his statements—expressing a purpose to sexually penetrate 

K.G. to “aid her physical recovery from workouts” 14—were not 

deceptive, because it was not “objectively reasonable” for her 

to believe that was the purpose of his conduct. 15 Anders’ argument requires this court to interpret § 28-318(8)(a)(iv).

12 State v. Mrza, supra note 3.

13 See State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020).

14 Brief for appellant at 17.

15 Id. (emphasis omitted).
- 975 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

[7-9] When interpreting a statute, the starting point and 

focus of the inquiry is the meaning of the statutory language, 

understood in context. 16 Our analysis begins with the text, 

because statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation 

to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous. 17 Neither is it within the province of 

the courts to read meaning into a statute that is not there or to 

read anything direct and plain out of a statute. 18

[10] Under § 28-318(8)(a)(iv), a victim does not consent to 

sexual penetration if “the consent, if any was actually given, 

was the result of the actor’s deception as to the identity of 

the actor or the nature or purpose of the act on the part of the 

actor.” The words of the statute thus impose two requirements 

to hold an actor responsible for sexual penetration of a victim. 

The actor must employ deception regarding either the identity 

of the actor or the nature and purpose of the act on the part 

of the actor. And the consent given, if any, must be the result 

of the deception. Here, there is no suggestion that there was 

any deception as to the identity of the actor; rather, the theory 

of deception focused on the nature and purpose of Anders’ 

“treatment.”

[11] Deception is not statutorily defined. Legal dictionaries 

have commonly defined “deception” as follows: “The act of 

deliberately causing someone to believe that something is true 

when the actor knows it to be false. . . . A trick intended to 

make a person believe something untrue.” 19 But, more important, the word “deception,” as used in § 28-318(8)(a)(iv), has a 

16 State v. Taylor, supra note 7.

17 Id.

18 Id.

19 See, Black’s Law Dictionary 510 (11th ed. 2019); “Deception,” MerriamWebster.com, https://www.merrriam-webster.com/dictionary/deception (last 

visited July 7, 2022) (“the act of causing someone to accept as true or 

valid what is false or invalid”).
- 976 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

plain and ordinary meaning: words or conduct, or both words 

and conduct, causing the victim to believe what is false. This 

derives from two ordinary definitions. “[D]eception” is the 

“action of deceiving or cheating,” the “fact or condition of 

being deceived,” or “[t]hat which deceives; a piece of trickery; 

a cheat, sham.” 20 “[D]eceive,” in turn, is to “cause to believe 

what is false; to mislead as to a matter of fact, lead into error, 

impose upon, delude, ‘take in.’” 21

Here, Anders argues, it is “wholly unreasonable for an intelligent, emotionally, and socially well-adjusted high school 

student to believe in the early period of her weight training an 

obvious and self-serving lie by her trainer that digital sexual 

penetration would aid her recovery from workouts.” 22 Thus, he 

continues, even if “it happened as she claims, [K.G.’s] belief in 

. . . Anders’ statements [was] unreasonable.” 23

[12] In part, Anders’ argument attempts to add words to 

§ 28-318(8)(a)(iv). He invites us to insert a “reasonable reliance requirement” into the statute. 24 But in strictly construing penal statutes, an appellate court does not supply missing 

words or sentences to make clear that which is indefinite, or to 

supply that which is not there. 25 We decline Anders’ request to 

read words into the statute.

Mainly, however, Anders invites us to reweigh credibility. 

He asks us to second-guess the trier of fact. Viewed in the light 

most favorable to the prosecution, the evidence shows that 

the first time that Anders sexually penetrated K.G., she was a 

young teenager under his tutelage. K.G. sought treatment for 

20 See “Deception,” Oxford English Dictionary Online, https://www.oed.

com/view/Entry/48134 (last visited July 7, 2022).

21 See “Deceive,” Oxford English Dictionary Online, https://www.oed.com/

view/Entry/48096 (last visited July 7, 2022).

22 Brief for appellant at 18.

23 Id.

24 See id.

25 State v. Johnson, 310 Neb. 527, 967 N.W.2d 242 (2021).
- 977 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

pain she was suffering from training, and Anders had her lie 

down on a chiropractic bed at his gym. Anders then told K.G. 

that he needed to sexually penetrate her with his fingers to 

“adjust” her pelvis. Anders was 35 years her senior.

Anders occupied a position of trust, power, and authority 

over K.G. Could a reasonable fact finder conclude that Anders 

used that trust, power, and authority to cause K.G. to believe in 

something false, specifically, the nature and purpose of his act 

in penetrating her? In light of the evidence viewed most favorably to the prosecution, the question answers itself.

Moreover, Anders used deception for years to obtain K.G.’s 

consent and escalate the nature of the sexual penetration. Any 

time that K.G. protested being sexually penetrated, Anders 

deceptively stated that it was necessary for her “recovery” 

from her training. Then, K.G. would consent.

The court did not err in convicting Anders of first degree 

sexual assault. There was sufficient evidence to support Anders’ 

conviction through the use of deception.

b. Coercion

[13] Because we found that the evidence was sufficient to 

prove that Anders sexually penetrated K.G. through deception, we need not address this argument. Where there is sufficient evidence to support a conviction under one theory 

of guilt, an appellate court need not consider whether the 

evidence was sufficient to support the alternative theory or 

theories of guilt. 26

2. Ineffective Assistance of Counsel

(a) Standard of Review

[14,15] 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 per

formance which is known to the defendant or is apparent from 

26 See State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).
- 978 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

the record; otherwise, the issue will be procedurally barred in a 

subsequent postconviction proceeding. 27 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. 28

[16-19] Generally, to prevail on a claim of ineffective assist

ance of counsel under Strickland v. Washington,

 29 the defendant 

must show that his or her counsel’s performance was deficient 

and that this deficient performance actually prejudiced the 

defendant’s defense. 30 To show that counsel’s performance 

was deficient, a defendant must show that counsel’s perform

ance did not equal that of a lawyer with ordinary training and 

skill in criminal law. 31 To show prejudice, the defendant must 

demonstrate a reasonable probability that but for counsel’s 

deficient performance, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. 32 In determining 

whether trial counsel’s performance was deficient, there is a 

strong presumption that counsel acted reasonably. 33

[20,21] 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. 34 Where the Nebraska Evidence Rules commit the 

evidentiary question at issue to the discretion of the trial court, 

27 State v. Mrza, supra note 3.

28 Id.

29 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

30 State v. Mrza, supra note 3.

31 Id.

32 Id.

33 Id.

34 State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
- 979 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

an appellate court reviews the admissibility of evidence for an 

abuse of discretion. 35

[22] Whether cumulative error deprived a criminal defendant 

of his or her Sixth Amendment right to a trial by an impartial 

jury presents a question of law to be reviewed de novo. 36

(b) Discussion

[23] We must address two preliminary matters. First, we 

emphasize that we restrict our analysis to only those errors 

that are assigned and specifically alleged. An alleged error 

must be both specifically assigned and specifically argued in 

the brief of the party asserting the error to be considered by 

an appellate court. 37 Further, assignments of error on direct 

appeal regarding ineffective assistance of trial counsel must 

specifically allege deficient performance, and an appellate 

court will not scour the remainder of the brief in search of 

such specificity. 38

[24] Anders does not limit his arguments regarding ineffective assistance of counsel to his assigned errors. Some of 

Anders’ errors also lack the specificity we demand on direct 

appeal. We acknowledge that Anders filed his brief pro se. 

But a pro se party is held to the same standards as one who 

is represented by counsel. 39 Therefore, we only consider those 

arguments that are specifically raised in his assignments 

of error.

Additionally, while Anders’ appellate counsel was different 

from his trial counsel, he does not specify in his assignments of 

error which trial counsel was ineffective. Technically, Anders’ 

initial counsel, primary counsel, and postverdict counsel were 

all trial counsel.

35 Id.

36 State v. Figures, supra note 5.

37 State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021).

38 State v. Mrza, supra note 3.

39 State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
- 980 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

Despite Anders’ generality, we will consider his assignments 

of ineffective assistance of counsel, because we infer from the 

specific allegations of deficient performance that he is referring to his primary counsel. Anders’ assignments of ineffective 

assistance of counsel discuss only pretrial and trial matters 

during which he was represented by primary counsel. For the 

remainder of our analysis, we will refer to Anders’ primary 

counsel as “trial counsel.”

(i) Expert Testimony Regarding Coercion

Anders assigns that his trial counsel was ineffective by failing to “insist upon expert testimony as to psychological coercion.” We read this assignment of error as recasting Anders’ 

sufficiency of the evidence argument regarding psychological 

coercion into an effective assistance of counsel claim.

Anders’ assignment lacks merit, because his trial counsel objected to the sufficiency of the evidence by moving to 

dismiss the charge against Anders after the State completed 

its presentation of evidence. Further, we found the evidence 

sufficient to convict Anders—albeit under a different theory 

of guilt. Therefore, Anders’ trial counsel was not deficient for 

failing to “insist” on expert testimony regarding psychological coercion.

(ii) Deception

Anders assigns that his trial counsel was ineffective by 

“[f]ailing to argue [sic] reliance upon deception as to the nature 

or purpose of a sexual act must be objectively reasonable.” 

For almost identical reasons as the previous assignment, we 

find Anders’ assignment lacks merit. Anders’ trial counsel did 

object, and we have found sufficient evidence supporting the 

theory of deception.

(iii) Hearsay

Anders assigns that he received ineffective assistance of 

counsel, because his trial counsel did not object to “inadmissible single, double, and triple hearsay.” Anders’ assignment of 
- 981 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

error does not allege what specific testimony his trial counsel 

should have objected to as inadmissible hearsay. This court 

shall not scour Anders’ brief to rectify his lack of specificity. 

Therefore, we will not address this claim of ineffective assist

ance of counsel.

(iv) M.C.

Anders assigns that his trial counsel was ineffective by failing to object to M.C.’s testimony at trial for being “an allegedly prior bad act that was dissimilar, did not constitute a crime 

of sexual assault under [§] 27-413 . . . , and was unduly prejudicial under [§] 27-403.” Although Anders cites to Neb. Rev. 

Stat. § 27-413 (Reissue 2016), that section provides a definition pertinent to § 27-414—the section authorizing evidence of 

similar crimes in sexual assault cases. We understand Anders’ 

argument to rely on the latter section.

Pursuant to § 27-414, evidence of the accused’s prior commission of another offense of sexual assault is admissible if 

there is clear and convincing evidence that the accused committed the other offense. 40 Section 27-414 requires a hearing 

outside the presence of the jury before the court admits such 

evidence. 41 Subsection (3) of the statute also mandates:

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. 42

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

41 See id.

42 See § 27-414(3).
- 982 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

At the § 27-414 hearing, M.C. testified that Anders deceived 

her, ran his fingers up her thigh to her pelvic area, and “swirled 

his hands all over [her] breasts.” These actions constituted third 

degree sexual assault. 43

The court issued a written order, overruling Anders’ objection and allowing M.C. to testify at trial. The court conducted a § 27-403 balancing test and considered the factors in 

§ 27-414(3). The court found that there was clear and convincing evidence “the incident [M.C.] testified about occurred,” 

noted that it occurred during the same period the State alleged 

that Anders sexually assaulted K.G., and noted that “both [M.C. 

and K.G.] allege that [Anders] told them that he would need to 

penetrate their vagina in order to properly adjust them.”

Anders’ trial counsel was not ineffective for failing to renew 

his objection to M.C.’s testimony under § 27-414, because it 

would have been futile to do so. The court did not abuse its 

discretion in allowing M.C. to testify at trial, and the record 

does not support the notion that the court would have reversed 

its ruling.

(v) Ex-Business Partner

Anders assigns that he received ineffective assistance of 

counsel because his trial counsel “[f]ail[ed] to impeach [his 

ex-business partner] about his previous felony convictions, 

to object to his testimony as improper evidence of prior bad 

acts, to object to defense witnesses being questioned about 

[his] testimony, and the financial windfall [he] would derive 

from [Anders’] being convicted.” This assignment features four 

claims. We will address them in turn.

a. Felony Convictions

Anders argues that his trial counsel was ineffective because 

he did not impeach his ex-business partner for having previous 

43 See, § 27-414(1); § 28-318(5); Neb. Rev. Stat. § 28-320(1) (Reissue 

2016).
- 983 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

felony convictions. The record is sufficient to address this 

claim, but Anders’ argument lacks merit.

Anders’ trial counsel questioned Anders’ ex-business partner and revealed that he was “arrested for a crime and actually incarcerated between 2011 and 2015” and was, at one 

point, on “work release” when working for Anders. Therefore, 

Anders’ trial counsel was not deficient regarding his “[f]ailure 

to impeach [his ex-business partner].”

b. Prior Bad Act

Anders also argues his trial counsel should have objected 

to his ex-business partner’s testimony that he saw Anders kiss 

K.G., because it was inadmissible evidence of a prior bad 

act under § 27-414. The record is insufficient to address this 

assignment.

[25-27] The decision whether or not to object has long 

been held to be part of trial strategy. 44 When reviewing claims 

of alleged ineffective assistance of counsel, trial counsel is 

afforded due deference to formulate trial strategy and tactics. 45

There is a strong presumption that counsel acted reasonably, 

and an appellate court will not second-guess reasonable strategic decisions. 46

The record is devoid of evidence that would allow us to 

determine whether Anders’ trial counsel chose to not object 

to Anders’ ex-business partner’s testimony regarding the kiss 

as part of a trial strategy. Therefore, the record is insufficient 

to adequately review this claim of ineffective assistance of 

counsel.

c. Defense Witnesses

Anders presents no argument to support his claim that his 

trial counsel was ineffective for failing to object to defense 

44 See State v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015).

45 See id.

46 Id.
- 984 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

witnesses’ being questioned about the ex-business partner’s 

testimony. Therefore, we will not consider this claim of ineffective assistance of counsel.

d. Financial Motives

Finally, Anders argues that his trial counsel was ineffective 

for questioning his ex-business partner regarding any financial 

motives for testifying. Anders attempts to support this argument by reference to materials entirely outside the record. 

While Anders sufficiently alleges this portion of his assignment 

of error, the record is insufficient for this court to address this 

claim of ineffective assistance of counsel.

(vi) Text Messages

Anders assigns that his trial counsel was ineffective for 

“[f]ailing to object to inadmissible text messages from 

[Anders’] and [K.G.’s] cell phones.” Anders does not specify 

in what manner the text messages were inadmissible in his 

assignment of error. Therefore, this claim of ineffective assist

ance of counsel lacks the specificity required for this court to 

address it.

(vii) K.G.’s Statements

Anders assigns that his trial counsel was ineffective for 

“[f]ailing to cross-examine [K.G.] about the inconsistent time 

periods of [his] alleged misconduct between her trial testimony 

and previous sworn statements.” The previous sworn statements that Anders cites are K.G.’s deposition for his trial and 

an affidavit she attached to her petition to seek a protection 

order against him. Anders claims “[K.G.] was clear no sexual 

penetration of her by [Anders] occurred before her 16th birthday, and that all incidents occurred inside [his] gym.” 47

Anders’ trial counsel was not deficient for not crossexamining K.G. about her statements in her deposition because 

47 Brief for appellant at 34.
- 985 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

they were not inconsistent with her trial testimony. In her 

deposition, K.G. testified, “That adjustment where he stuck 

his fingers into my vaginal canal and adjusted my pelvis . . . 

occurred when I was fifteen . . . I remember the first time that 

had happened my mom came and picked me up.” K.G. also 

testified that Anders and K.G. had “sexual relations” outside 

his gym—during their travels to weightlifting competitions.

However, the record is insufficient for this court to assess 

Anders’ claim that K.G. made inconsistent statements in her 

protection order affidavit, because the affidavit is not in the 

record. Therefore, this court cannot address this portion of 

Anders’ claim of ineffective assistance of counsel.

(viii) K.G.’s Mental State

Anders assigns his trial counsel was ineffective for “[f]ailing 

to seek the counseling records of [K.G.’s therapist]” under State 

v. Trammell 48 “to cross examine [him] thereon, and to retain a 

defense expert to determine and testify if [K.G.] was suffering from false memory syndrome, and whether or not [K.G.’s] 

reliance upon any deception by [Anders] was reasonable and/

or a result of psychological coercion.” Anders argues that his 

trial counsel’s failure to obtain K.G.’s counseling records prevented him from being able to sufficiently cross-examine her 

therapist and prove that her testimony was unreliable due to a 

mental condition.

Because Anders’ trial counsel never filed a motion pursuant to Trammell and presented evidence under the established procedure, the record is insufficient for this court to 

assess whether his trial counsel was ineffective for failing to 

seek K.G’s counseling records. 49 Consequently, we also cannot address Anders’ claim that his trial counsel was ineffective 

for failing to cross-examine K.G.’s therapist and present expert 

testimony regarding K.G.’s mental state, because these claims 

48 See State v. Trammell, supra note 4.

49 See id.
- 986 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

are conditioned upon his trial counsel’s obtaining her counseling records. This court cannot address these claims based upon 

the record before us.

(ix) Cumulative Error

[28] Anders concludes his assignments of error regarding 

ineffective assistance of counsel by arguing that the cumulative 

effect of his trial counsel’s deficient performance resulted in 

cumulative error. We have recognized the doctrine of cumulative error in the context of a criminal jury trial. 50 Although 

one or more trial errors might not, standing alone, constitute 

prejudicial error, their cumulative effect may be to deprive the 

defendant of his or her constitutional right to a public trial by 

an impartial jury. 51

[29] However, we note that in a case tried to the court without a jury, there is a presumption that the trial court, in reaching its decision, considered only evidence that is competent 

and relevant, and this court will not overturn such a decision 

where there is sufficient material, competent, and relevant evidence to sustain the judgment. 52 This presumption is a principle 

of appellate procedure which requires an appellant to show that 

the trial court actually used erroneously admitted evidence for 

the judgment or decision against the appellant. 53

The doctrine of cumulative error does not support Anders’ 

argument. The majority of Anders’ claims of ineffective assist

ance of counsel are without merit or not sufficiently alleged. 

The remaining assignments of error, for which the record is 

insufficient to address in this direct appeal, cannot form the 

basis for a claim of cumulative error. 54

50 See State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).

51 See State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).

52 See State v. Tomes, 218 Neb. 148, 352 N.W.2d 608 (1984).

53 See State v. Lomack, 239 Neb. 368, 476 N.W.2d 237 (1991).

54 See State v. Stelly, supra note 50.
- 987 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

3. Sentence

Finally, Anders assigns that his sentence was excessive and 

unconstitutional. Anders’ assignment lacks merit.

(a) Standard of Review

[30] A sentence imposed within the statutory limits will not 

be disturbed on appeal in the absence of an abuse of discretion 

by the trial court. 55 We have already recited the definition of 

abuse of discretion.

(b) Discussion

(i) Excessive

Anders asserts that his sentence of 25 to 30 years’ imprisonment was clearly excessive. Anders argues the court improperly applied the well-established factors and applicable legal 

principles. We disagree.

Anders’ sentence was within the statutory limits, and the 

court considered the well-established factors and applicable 

legal principles in its sentencing decision. As stated by the 

court, Anders used his “position of authority, command, influence” to “manipulate[] and isolate[]” a teenager into having 

sexual intercourse with someone 35 years her senior. Anders 

also showed no remorse for his actions.

The court’s decision was not untenable, unreasonable, or 

clearly against justice or conscience, reason, and evidence. 

Therefore, Anders’ sentence was not excessive.

(ii) Unconstitutional

Anders also challenges that his sentence is unconstitutional 

under art. I, § 9, of the Nebraska Constitution and the Eighth 

Amendment to the U.S. Constitution, which prohibit the infliction of cruel and unusual punishment. Anders argues that his 

sentence must be proportionate to others sentenced for similar 

crimes. Again, we disagree.

55 State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
- 988 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ANDERS

Cite as 311 Neb. 958

[31] We have previously considered and rejected this broad 

proportionality claim. 56 The constitutional protection against 

cruel and unusual punishment does not require strict proportionality between crime and sentence, but, rather, forbids only 

extreme sentences that are grossly disproportionate to the 

crime. 57 The sentencing court was under no obligation to conduct a comparative analysis of similar cases—an inquiry that 

would be entirely impractical for trial courts to undertake. 58

We find that Anders’ sentence did not constitute cruel and 

unusual punishment. Anders’ sentence properly reflected the 

seriousness of the crime committed and was proportionate for 

the offense and the offender.

VI. CONCLUSION

There was sufficient evidence to support Anders’ conviction 

for first degree sexual assault. Further, Anders did not receive 

an excessive sentence. Anders’ ineffective assistance of counsel 

claims either lack merit or cannot be addressed on this record. 

We affirm Anders’ conviction and sentence.

Affirmed. 

56 See State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).

57 See id.

58 See State v. Morton, 310 Neb. 355, 966 N.W.2d 57 (2021).