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Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. SINKEY

Cite as 303 Neb. 345

State of Nebraska, appellee, v.

Jason P. Sinkey, appel

___ N.W.2d ___

Filed June 7, 2019. No. S-18-717.

1. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. The relevant question for an appellate court 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

2. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal 

is a question of law. In reviewing claims of ineffective assistance of 

counsel on direct appeal, an appellate court decides only whether the 

undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s 

alleged deficient performance.

3. 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.

4. 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.

Nebraska Supreme Court Online Library

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

07/25/2019 01:06 AM CDT
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Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. SINKEY

Cite as 303 Neb. 345

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

Error. In order to avoid a procedural bar to a future postconviction proceeding, a claim of ineffective assistance of counsel must be presented 

with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) 

a district court later reviewing a petition for postconviction relief to 

be able to recognize whether the claim was brought before the appellate court.

Appeal from the District Court for Douglas County: W. 

Russell Bowie III, Judge. Aff

Thomas C. Riley, Douglas County Public Defender, and 

Matthew J. Miller for appellant.

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

Klein for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Heavican, C

INTRODUCTION

Jason P. Sinkey was convicted of two counts of first degree 

sexual assault of a child and one count of possession of a firearm by a prohibited person. He appeals. We affirm.

FACTUAL BACKGROUND

Sinkey was charged on August 14, 2017, with two counts 

of first degree sexual assault of a child and one count of possession of a firearm by a prohibited person. The sexual assault 

charges arose from incidents occurring on July 10 and 11; the 

possession of a firearm by a prohibited person charge resulted 

from a firearm that was found in Sinkey’s residence while 

members of law enforcement were executing a search warrant 

with respect to the sexual assault charges.
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Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. SINKEY

Cite as 303 Neb. 345

Sinkey was romantically involved with the mother of the 

8-year-old victim, Z.P. Z.P. testified that on July 10, 2017, 

when her mother was out of the home, she was lying on her 

mother’s bed with Sinkey. Z.P. testified that Sinkey told her 

to take her pants and underwear off, then touched her “privates,” by both “st[icking] his tongue into [her] privates” and 

“lick[ing] his finger” and then rubbing her privates in the same 

place that he had used his tongue.

Z.P. testified that later that same day, July 10, 2017, Sinkey 

did the same thing: he “licked” with his tongue and with his 

finger. Z.P. also testified that Sinkey showed her his penis, 

which she described in a graphic manner, and asked her to 

touch it. Z.P. testified that Sinkey told her to keep these activities a secret and not tell her mother or he might go to jail and 

kill himself.

The next day, July 11, 2017, Z.P. testified that she was in 

the living room of the apartment she shared with her mother 

when Sinkey told her to remove her pants and underwear. Z.P. 

testified that on this occasion, Sinkey just touched her with his 

finger, which she said stayed outside of her. After this incident, 

Z.P.’s mother came home and Z.P. told her what Sinkey had 

done. Z.P. was instructed to take a shower; Z.P.’s mother then 

had a friend drive her and Z.P. to the police station to report 

the incident.

Sinkey was arrested later that same day on an outstanding 

warrant for failure to appear for a court hearing on a traffic 

offense. He was questioned by a detective with the Omaha 

Police Department. During the course of that interview, Sinkey 

admitted that he had licked Z.P.’s vagina and had touched 

her sexually.

A search of the crime scene was conducted. Following the 

issuance of a warrant, Sinkey’s residence was also searched. 

During the search of Sinkey’s residence, law enforcement 

found a rifle, ammunition, and other firearm-related items. 
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Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. SINKEY

Cite as 303 Neb. 345

Other evidence offered showed that Sinkey had previously 

been convicted of a felony.

Following a jury trial, Sinkey was found guilty of both 

counts of first degree sexual assault of a child and one count 

of possession of a firearm by a prohibited person. Sinkey was 

sentenced to 55 to 70 years’ imprisonment on each sexual 

assault conviction and 3 to 5 years’ imprisonment for the possession of a firearm conviction. The sentence for the possession of a firearm conviction was ordered to be served consecutively to one count of sexual assault and concurrently with the 

other count of sexual assault. Sinkey appeals.

ASSIGNMENTS OF ERROR

On appeal, Sinkey assigns that (1) there was insufficient 

evidence to support his convictions and (2) his trial counsel 

was ineffective.

STANDARD OF REVIEW

[1] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. The relevant question 

for an appellate court is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt.1

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

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

reviewing claims of ineffective assistance of counsel on direct 

appeal, an appellate court decides only whether the undisputed 

1 State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. SINKEY

Cite as 303 Neb. 345

facts contained within the record are sufficient to conclusively 

determine whether counsel did or did not provide effective 

assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.2

ANALYSIS

Sufficiency of Evidence.

In his first assignment of error, Sinkey assigns that there was 

insufficient evidence to support his convictions.

We turn first to Sinkey’s convictions for first degree sexual 

assault of a child. Sinkey contends that the State’s allegation 

was based upon his admission to law enforcement that he 

“‘lick[ed] an eight-year-old’s vagina,’” but that his purported 

admission was not as “explicit or clear as a rational factfinder 

should require before passing on a defendant’s guilt.”3 Sinkey 

asserts that other than his admission, the State’s case rests 

solely on statements made by Z.P.

Sinkey’s contention is without merit. He is correct in that the 

only evidence to support his convictions was Z.P.’s testimony 

that Sinkey “licked” and “rubbed” her vagina and Sinkey’s 

confession that he “did lick her” and that he asked Z.P. to not 

tell anyone. But contrary to his assertion, this testimony is sufficient to support his convictions.

As is relevant on appeal, in order to prove the elements 

of sexual assault of a child, the State needed to prove that 

Sinkey subjected Z.P. to sexual penetration. Z.P. testified that 

on at least two occasions, Sinkey used his tongue in and 

around her vaginal area and that on three occasions, he used 

his finger to rub and touch Z.P.’s vaginal area. We review the 

evidence in a light most favorable to the State. This evidence 

was sufficient to prove that Sinkey subjected Z.P. to sexual 

2 Id.

3 Brief for appellant at 11.
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STATE v. SINKEY

Cite as 303 Neb. 345

penetration, regardless of the content of Sinkey’s statement to 

law enforcement.

In his brief, Sinkey asserts that there was insufficient evidence to support his conviction for possession of a firearm by 

a prohibited person. Other than that assertion, Sinkey makes 

no argument with respect to this assignment of error. We conclude that the assertion was inadequate to preserve this issue 

for appeal.4

The evidence was sufficient to support Sinkey’s convictions. 

His first assignment of error is without merit.

Ineffective Assistance of Counsel.

In his second assignment of error, Sinkey contends that his 

trial counsel was ineffective by failing to adequately crossexamine certain witnesses at trial and failing altogether to 

cross-examine other witnesses. Sinkey specifically notes concerns with trial counsel’s cross-examination of the detective 

and of the victim’s mother. In addition, Sinkey argues that 

counsel was ineffective in failing to offer any testimony or evidence adverse to the State’s defense or present any witnesses 

“who may have spoken to his client’s positive traits or lack of 

propensity to commit acts like those alleged at trial.”5

[3-5] 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.6 The fact that an 

ineffective assistance of counsel claim is raised on direct 

appeal does not necessarily mean that it can be resolved. 

4 See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

5 Brief for appellant at 12.

6 State v. Mrza, supra note 1.
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Nebraska Supreme Court Advance S

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STATE v. SINKEY

Cite as 303 Neb. 345

The determining factor is whether the record is sufficient to 

adequately review the question.7 In order to avoid a procedural 

bar to a future postconviction proceeding, a claim of ineffective assistance of counsel must be presented with enough 

particularity for (1) an appellate court to make a determination 

of whether the claim can be decided upon the trial record and 

(2) a district court later reviewing a petition for postconviction 

relief to be able to recognize whether the claim was brought 

before the appellate court.8

We conclude that Sinkey failed to allege ineffective assistance of counsel with sufficient particularity. Sinkey alleges that 

his defense counsel’s performance was inadequate, but he fails 

to include allegations relating what counsel could have argued 

or done differently in Sinkey’s defense. Sinkey also alleges 

that his counsel only “lightly” cross-examined the detective 

and the victim’s mother,9 but again, he fails to detail what 

questions should have been asked that would have contributed 

to his defense.

In sum, Sinkey alleged only neutral facts about the evidence 

presented at trial and the actions of defense counsel and then 

concluded that defense counsel’s performance was deficient. 

Because Sinkey did not allege specific instances of counsel’s 

ineffectiveness, there is no record upon which this court could 

decide these allegations. Accordingly, we conclude that Sinkey 

failed to sufficiently allege ineffective assistance of counsel.

CONCLUSION

The judgment of the district court is affirmed.

Affirmed

7 Id.

8 See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).

9 Brief for appellant at 15.