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STATE v. JEDLICKA

Cite as 297 Neb. 276

State of Nebraska, appellee, v. 

Paul J. Jedlicka, appellant.

___ N.W.2d ___

Filed July 28, 2017. No. S-16-629.

1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court will review for 

clear error the factual findings underpinning a trial court’s hearsay ruling and review de novo the court’s ultimate determination whether the 

court admitted evidence over a hearsay objection or excluded evidence 

on hearsay grounds.

2. Rules of Evidence: Hearsay. Whether a statement was both taken and 

given in contemplation of medical diagnosis or treatment is a factual 

finding made by the trial court in determining the admissibility of 

the evidence under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) 

(Reissue 2016).

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

Error. An ineffective assistance of counsel claim is raised on direct 

appeal when allegations of deficient performance are made with enough 

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

whether the claim can be decided upon the trial record and (2) a 

district court later reviewing a petition for postconviction relief to 

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

4. 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.

5. ____: ____. In reviewing claims of ineffective assistance of counsel on 

direct appeal, an appellate court decides only questions of law: Are the 

undisputed facts contained within the record sufficient to conclusively 

determine whether counsel did or did not provide effective assistance 

and whether the defendant was or was not prejudiced by counsel’s 

alleged deficient performance?

Nebraska Supreme Court Online Library

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

08/04/2017 09:07 AM CDT
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6. Appeal and Error. An appellate court does not consider errors which 

are argued but not assigned.

7. Rules of Evidence: Hearsay. A declarant’s out-of-court statement 

offered for the truth of the matter asserted is inadmissible unless it falls 

within a definitional exclusion or statutory exception.

8. ____: ____. Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 

2016), is based on the notion that a person seeking medical attention 

will give a truthful account of the history and current status of his or her 

condition in order to ensure proper treatment.

9. Rules of Evidence: Hearsay: Sexual Assault: Minors. Statements 

made by a child victim of sexual abuse to a forensic interviewer in the 

chain of medical care may be admissible under Neb. Evid. R. 803(3), 

Neb. Rev. Stat. § 27-803(3) (Reissue 2016), even though the interview 

has the partial purpose of assisting law enforcement’s investigation of 

the crimes.

10. Rules of Evidence: Hearsay: Police Officers and Sheriffs. The fundamental inquiry to determine whether statements, made by a declarant 

who knew law enforcement was listening, had a medical purpose is 

if the challenged statement has some value in diagnosis or treatment, 

because the patient would still have the requisite motive for providing 

the type of sincere and reliable information that is important to that 

diagnosis and treatment.

11. Rules of Evidence: Hearsay: Proof. Statements having a dual medical 

and investigatory purpose are admissible under Neb. Evid. R. 803(3), 

Neb. Rev. Stat. § 27-803(3) (Reissue 2016), only if the proponent of the 

statements demonstrates that (1) the declarant’s purpose in making the 

statements was to assist in the provision of medical diagnosis or treatment and (2) the statements were of a nature reasonably pertinent to 

medical diagnosis or treatment by a medical professional.

12. Rules of Evidence: Hearsay. Under Neb. Evid. R. 803(3), Neb. Rev. 

Stat. § 27-803(3) (Reissue 2016),the admissibility of a victim’s statements in a recording is not distinct from the admissibility of the statements themselves.

13. Rules of Evidence: Hearsay: Intent. Under Neb. Evid. R. 803(3), 

Neb. Rev. Stat. § 27-803(3) (Reissue 2016), the fundamental inquiry 

when considering a declarant’s intent is whether the statement was 

made in legitimate and reasonable contemplation of medical diagnosis 

or treatment.

14. ____: ____: ____. Under Neb. Evid. R. 803(3), Neb. Rev. Stat. 

§ 27-803(3) (Reissue 2016), the appropriate state of mind of the declarant may be reasonably inferred from the circumstances; such a determination is necessarily fact specific.
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15. 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.

16. 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 on direct appeal. The determining factor is whether the record is sufficient to adequately review 

the question.

17. Effectiveness of Counsel: Proof. 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.

18. ____: ____. To show prejudice on a claim of ineffective assistance of 

counsel, the defendant must demonstrate a reasonable probability that 

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

would have been different.

19. Effectiveness of Counsel: Proof: Presumptions. The two prongs of the 

ineffective assistance of counsel test under Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed 

in either order, and the entire ineffectiveness analysis should be viewed 

with a strong presumption that counsel’s actions were reasonable.

20. ____: ____: ____. United States v. Cronic, 466 U.S. 648, 104 S. Ct. 

2039, 80 L. Ed. 2d 657 (1984), provides narrow exceptions to the ineffective assistance of counsel test under Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), where the reliability 

of the adversarial process is in such doubt that prejudice to the defendant will be presumed, resulting in a conclusion of ineffective assistance 

of counsel.

21. Effectiveness of Counsel: Presumptions. Under United States v. 

Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), there 

are three circumstances where prejudice to the defendant will be presumed: (1) where the accused is completely denied counsel at a critical 

stage of the proceedings, (2) where counsel entirely fails to subject the 

prosecution’s case to meaningful adversarial testing, and (3) where the 

surrounding circumstances may justify the presumption of ineffectiveness without inquiry into counsel’s actual performance at trial.

22. Effectiveness of Counsel. The difference between the rule in Strickland 

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

and the rule in United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 
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80 L. Ed. 2d 657 (1984), is the difference between bad lawyering and 

no lawyering.

23. ____. Under United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 

L. Ed. 2d 657 (1984), for counsel to entirely fail to subject the prosecution’s case to meaningful adversarial testing, the attorney’s failure must 

be complete.

24. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

25. Convictions: Evidence: Appeal and Error. Regardless of whether 

the evidence is direct, circumstantial, or a combination thereof, and 

regardless of whether the issue is labeled as a failure to direct a verdict, 

insufficiency of the evidence, or failure to prove a prima facie case, the 

standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

Appeal from the District Court for Sarpy County: David K. 

Arterburn, Judge. Affirmed.

Ann C. Addison-Wageman, of Law Office of Ann C. 

Addison-Wageman, P.C., L.L.O., for appellant.

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

Klein for appellee.

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

Kelch, and Funke, JJ.

Funke, J.

I. NATURE OF CASE

In this direct appeal, Paul J. Jedlicka challenges his conviction, by jury verdict, for first degree sexual assault of a child 

under 12 years of age. Jedlicka primarily argues that he was 

prejudiced by the erroneous admission of hearsay evidence 

under the medical diagnosis and treatment exception, Neb. 

Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016). 
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We conclude that the court properly admitted such evidence 

under rule 803(3). We also reject Jedlicka’s assertions that 

his trial counsel provided ineffective assistance and that the 

evidence was insufficient to support his conviction. Therefore, 

we affirm.

II. FACTS

In May 2015, Jedlicka was in a relationship with the mother 

of the 10-year-old victim, M.B., and had been living with 

M.B., her mother, and her younger brother since the fall of 

20l4. On May 13, 2015, the mother was working the night shift 

as an emergency room nurse while Jedlicka watched M.B. and 

her brother. After playing a “scary” video game, M.B.’s brother 

wanted to sleep with her, but Jedlicka suggested both children 

sleep with him in his and their mother’s bedroom. M.B. slept 

between Jedlicka and her brother.

M.B. testified that she woke up during the night to 

Jedlicka’s fingers inside her vagina. She said that she was 

scared and confused but pretended to be asleep because she 

did not know what else to do; M.B. did not want Jedlicka to 

know that she knew what was happening so that she could 

tell someone later. She testified that she knew it was Jedlicka, 

because his hand was bigger than her brother’s and she saw 

that her brother was asleep on his back when she briefly 

opened her eyes. M.B. said that eventually Jedlicka stopped 

and left the room.

The next morning, M.B. got ready for school and went to 

the bus stop with her brother. She said that she did not say 

anything that morning, because Jedlicka was the only adult at 

the house and she still did not want him to know she had been 

awake. M.B.’s mother met the children at the bus stop a minute 

or two before the bus arrived to make sure they got there on 

time. She said that her son was acting normal, but that M.B. 

was acting differently, clinging to her rather than playing with 

the other children. M.B. said that she did not tell her mother, 

because other people were around.
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Once M.B. got to school, she told her teacher from the prior 

year about the incident. The teacher testified at trial that M.B. 

told her that Jedlicka had touched her privates. As a result, the 

teacher notified the school psychologist and made a report to 

Child Protective Services.

Det. Brandon Stigge reported to the school to investigate the 

allegation. He testified that M.B. was crying when he arrived 

and that he told her there were “way smarter” people than he 

was that would like to talk to her. Stigge called the mother and 

requested that she come to the school. While waiting for the 

mother to arrive, he contacted Project Harmony to request a 

forensic interview.

After the mother arrived at the school, Stigge told her 

M.B.’s allegation and explained to her the process that would 

take place. Stigge recommended that the mother take M.B. to 

Project Harmony. The mother testified that she took M.B. to 

Project Harmony voluntarily.

Project Harmony is a child advocacy center that serves 

children when there have been allegations of abuse. It provides forensic interview, medical, and mental health services 

and victim advocacy. Children typically become involved 

with Project Harmony by referral from law enforcement or 

Child Protective Services during an active investigation. Law 

enforcement and Child Protective Services representatives can 

watch the interviews by closed-circuit television and are provided a DVD of the video-recorded interviews.

April Anderson is a forensic interviewer at Project 

Harmony. She has a master’s degree in social work and is a 

licensed mental health practitioner. Anderson has completed 

numerous training courses for forensic interviewing since she 

began working at Project Harmony in 2001, including training 

through the National Children’s Advocacy Center (NCAC). 

She testified that she has conducted over 5,000 forensic interviews, close to 60 percent of which were in child sexual 

assault cases. Anderson stated that as a forensic interviewer, 

she conducts structured conversations with children to gather 
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information to piece together whether something did or did 

not happen.

Anderson testified that she provides the information she 

learns in her interviews to the nurse practitioner at Project 

Harmony, Sarah Cleaver, to assist Cleaver in making an appropriate medical diagnosis and in determining any appropriate 

medical care or mental health treatment the child may need. 

The information also assists in identifying the perpetrator to 

ensure the child is not being placed back in the home with 

the abuser.

Anderson testified that she met with M.B.’s mother before 

the interview to gather some background information and 

explain what was going to take place. Anderson then interviewed M.B. while Stigge and a caseworker observed the interview in an adjacent room by closed-circuit television.

The DVD of Anderson’s interview with M.B. shows that 

Anderson began the interview by explaining that M.B. was 

safe and that nobody was going to hurt her. She also told M.B. 

that “two friends” were watching from another room to make 

sure Anderson did not forget to ask anything important. Then, 

Anderson explained the importance of telling the truth and 

M.B. agreed that she would tell the truth.

Anderson proceeded to ask M.B. open-ended questions about 

the abuse, under NCAC protocols. M.B.’s responses were initially vague, but she eventually described the sexual assault in 

detail. M.B. stated that she had slept with Jedlicka that night 

and woke up while it was still dark to Jedlicka’s fingers inside 

her vagina.

After M.B. described the sexual assault, Anderson left the 

room to consult with Stigge. She testified that Stigge asked 

her to inquire further about the sleeping arrangement and how 

M.B. knew it was Jedlicka touching her, but she said that 

Stigge did not tell her any questions to ask.

Anderson stated that the information she learned from M.B. 

was important for her to determine the appropriate followup 

care and treatment for the child. Before examining M.B., 
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Cleaver, who was not present to observe the interview, spoke 

with Anderson to gather information about M.B. Cleaver testified that it was important that she receive an accurate account 

of the assault, because “[i]t helps guide me during the exam 

as to where I should look, what kind of injuries I would 

potentially consider, [and] where I would potentially collect 

evidence from.” She also stated that the information from 

Anderson assisted her in examining M.B., because she knew 

to obtain a DNA sample since the assault had occurred within 

72 hours.

Cleaver began M.B.’s examination by asking her what had 

happened. Specifically, Cleaver inquired about (1) the time of 

the assault; (2) where M.B. was assaulted; (3) what M.B. may 

have done since the assault that would have interfered with 

DNA collection, including showering, urinating, and changing clothing; and (4) if M.B. had experienced pain during 

the assault.

Cleaver said the examination could neither confirm nor 

disprove a sexual assault occurred. She said that based on 

her training and experience, she would not expect to see any 

signs of injury based on M.B.’s report of digital penetration. 

Cleaver did not test for sexually transmitted diseases, because 

it was not a concern from digital penetration. After Cleaver’s 

examination was complete, M.B. saw a therapist at Project 

Harmony.

At trial, Jedlicka objected to the admission of exhibit 2, the 

Project Harmony video recording of Anderson’s interview of 

M.B., into evidence because it was hearsay. The court overruled Jedlicka’s objection, finding that exhibit 2 qualified for 

the medical exception to hearsay. After the prosecution had 

concluded its case in chief, Jedlicka moved to dismiss by 

arguing that no reasonable juror could find that penetration 

occurred. The court overruled the motion.

The jury found Jedlicka guilty of first degree sexual assault 

of a child under 12 years of age. For the sentencing hearing, 

Jedlicka obtained substitute counsel from his trial. Jedlicka 
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was sentenced to a term of incarceration of 15 to 25 years. 

Jedlicka, with substitute counsel, appeals the conviction.

III. ASSIGNMENTS OF ERROR

Jedlicka assigns, restated, the following errors: (1) The court 

erred by admitting hearsay evidence under the medical diagnosis and treatment exception, rule 803(3); (2) his trial counsel was ineffective; and (3) the court erred by overruling his 

motion to dismiss at the close of the State’s case, because there 

was insufficient evidence to support his conviction.

IV. STANDARD OF REVIEW

[1] Apart from rulings under the residual hearsay exception, 

we will review for clear error the factual findings underpinning a trial court’s hearsay ruling and review de novo the 

court’s ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds.1

[2] Whether a statement was both taken and given in contemplation of medical diagnosis or treatment is a factual finding made by the trial court in determining the admissibility of 

the evidence under rule 803(3).2

[3] An ineffective assistance of counsel claim is raised on 

direct appeal when allegations of deficient performance are 

made with enough particularity for (1) an appellate court to 

make a determination of whether the claim can be decided 

upon the trial record and (2) a district court later reviewing 

a petition for postconviction relief to be able to recognize 

whether the claim was brought before the appellate court.3

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

may be determined on direct appeal is a question of law.4

1 State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).

2 State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012).

3 State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).

4 State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016).
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[5] In reviewing claims of ineffective assistance of counsel 

on direct appeal, an appellate court decides only questions 

of law: Are the undisputed facts contained within the record 

sufficient to conclusively determine whether counsel did or 

did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance?5

V. ANALYSIS

1. Excessive Sentence Not

Assigned as Error

[6] We first dispose of a preliminary issue. An appellate court does not consider errors which are argued but 

not assigned.6 Jedlicka argues that his sentence is excessive. 

However, he did not assign this proposition as error. As a 

result, we need not consider whether Jedlicka’s sentence was 

excessive and we restrict our analysis to Jedlicka’s listed 

assignments of error.

2. Exhibit 2 Was Not Inadmissible

Hearsay Under Rule 803(3)

Jedlicka argues that exhibit 2 was hearsay not within the 

rule 803(3) exception, because it was not made in the chain 

of medical care and the State failed to demonstrate that M.B. 

made the statements therein with the intent to obtain medical 

diagnosis or treatment. He also contends that exhibit 2 was 

made only for investigatory purposes.

[7] Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered to 

prove the truth of the matter asserted.7 A declarant’s out-ofcourt statement offered for the truth of the matter asserted is 

5 Ash, supra note 3.

6 State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).

7 Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2016).
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inadmissible unless it falls within a definitional exclusion or 

statutory exception.8

[8] Rule 803(3) provides that the hearsay rule does not 

exclude “[s]tatements made for purposes of medical diagnosis 

or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general 

character of the cause or external source thereof insofar as 

reasonably pertinent to diagnosis or treatment.” Rule 803(3) 

is based on the notion that a person seeking medical attention 

will give a truthful account of the history and current status 

of his or her condition in order to ensure proper treatment.9

In order for statements to be admissible under rule 803(3), the 

party seeking to introduce the evidence must demonstrate (1) 

that the circumstances under which the statements were made 

were such that the declarant’s purpose in making the statements was to assist in the provision of medical diagnosis or 

treatment and (2) that the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional.10

[9-11] In State v. Vigil,

11 we held that “statements made 

by a child victim of sexual abuse to a forensic interviewer 

in [the chain of medical care] may be admissible under rule 

803(3) even though the interview has the partial purpose of 

assisting law enforcement’s investigation of the crimes.” We 

stated that the fundamental inquiry to determine whether statements, made by a declarant who knew law enforcement was 

listening, had a medical purpose is “‘[i]f the challenged statement has some value in diagnosis or treatment, [because] the 

patient would still have the requisite motive for providing the 

type of “sincere and reliable” information that is important 

8 See, Neb. Evid. R. 802, Neb. Rev. Stat. § 27-802 (Reissue 2016); State v. 

McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

9 State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014).

10 Id.

11 Vigil, supra note 2, 283 Neb. at 139, 810 N.W.2d at 696.
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to that diagnosis and treatment.’”12 Nevertheless, the admissibility of dual purpose statements are still subject to the general two-prong standard used to determine admissibility under 

rule 803(3).13

Jedlicka did not assert that M.B.’s statements were not 

reasonably pertinent or lacked value for medical diagnosis or 

treatment. Therefore, we consider only whether Anderson’s 

interview was in the chain of medical care and whether M.B. 

made the statements therein with the intent to obtain medical 

diagnosis or treatment.

(a) Anderson’s Interview Was Conducted 

in Chain of Medical Care

Jedlicka asserts that exhibit 2 was not in the chain of 

medical care, primarily, because Cleaver did not watch it 

before examining M.B. Further, he contends that M.B.’s statements to Anderson were not in the chain of medical care, 

because Cleaver asked M.B. some of the same questions 

later. Specifically, Jedlicka argues that M.B.’s statements to 

Anderson could be in the chain of medical care only if they 

prevented her from being revictimized by having to recount 

the assault again later.

Although the heart of the rule 803(3) exception lies in statements made by a patient to a treating physician, the exception 

casts its net wider than the patient-physician relationship.14

Accordingly, the admissibility of statements, under rule 803(3), 

is not dependent on whether they were made to a physician.15

As mentioned above, we held in Vigil that statements made to a 

forensic interviewer may qualify for the rule 803(3) exception, 

if they are a part of the “‘chain of medical care.’”16

12 Id. at 137, 810 N.W.2d at 695-96.

13 See id.

14 Id.

15 Herrera, supra note 9.

16 Vigil, supra note 2, 283 Neb. at 137, 810 N.W.2d at 695.
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In Vigil, Kelli Lowe, a forensic interviewer, recorded her 

interview with the victim, D.S. Lowe testified that her role 

was “‘to gather the information for all, for everyone involved 

so that the child only has to go through it one time,’”17 and 

“to determine possible abuse or traumatic injury.”18 She testified further that “the treating physician utilizes the forensic 

interview in determining the proper treatment and therapy for 

the patient.”19 Lowe stated that she verbally summarized the 

interview to a doctor, who then created the discharge instructions—recommending therapy and a physical examination—

based solely on Lowe’s summary. D.S. was not examined by a 

doctor until 9 days later.

At the defendant’s trial, the video-recorded interview 

between D.S. and Lowe was entered into evidence. We did not 

consider the fact that the video recording was never viewed by 

the treating physician to be relevant in determining its admissibility. We held that the video recording was properly admitted as evidence under rule 803(3).

[12] Accordingly, under rule 803(3), the admissibility of a 

victim’s statements in a recording is not distinct from the admissibility of the statements themselves. Therefore, we consider 

only whether M.B.’s statements to Anderson are admissible.

The facts concerning M.B.’s statements to Anderson are 

substantially the same as D.S.’ statements to Lowe in Vigil. 

Anderson testified that her forensic interviews derive information that is used to guide the treatment of a victim regarding 

medical care, therapeutic care, and followup treatment. Cleaver 

testified that she did not watch the video-recorded interview, 

but merely received a verbal summary of it from Anderson. 

Similar to Vigil, Cleaver’s determination that M.B. should 

receive a medical examination was based solely on Anderson’s 

17 Id. at 133-34, 810 N.W.2d at 693.

18 Id. at 133, 810 N.W.2d at 693.

19 Id.
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summary. Further, Cleaver testified that Anderson’s summary 

informed her that the need for an examination was imminent 

because the 72-hour window to collect DNA evidence from 

M.B. had not passed.

Jedlicka’s argument that statements to a forensic interviewer 

are not in the chain of medical care if they do not prevent 

any requestioning of a victim that might lead to revictimization is without merit. Such an argument is not based on any 

holdings by this court, but, instead, on a statement made by 

Lowe, included in our opinion in Vigil, describing her role as 

a forensic interviewer.

In Vigil, we did not consider whether the doctor who later 

examined D.S. asked her questions that were also asked by 

Lowe. Further, we do not think it desirable to discourage medical professionals from discussing a child victim’s assault with 

the child, to build rapport and to understand the child’s emotional state, before engaging in the type of intimate examination required in these situations.

Here, Anderson interviewed M.B. the day that she was 

assaulted and was the first person to whom M.B. told specific 

details. Anderson emphasized the need for M.B. to tell the 

truth, and her NCAC training assisted M.B. to share progressively more details of the assault throughout the interview. 

Cleaver’s testimony that it was important that she receive an 

accurate account of the assault to guide her examination and 

inform her of potential injuries emphasizes the importance 

of Anderson’s extensive training in interviewing child sexual 

assault victims.

Further, Anderson’s interview focused on broader issues—

including the perpetrator’s identity and the circumstances of 

the assault—than Cleaver’s recount of her interview, which 

focused more on symptoms and evidence collection. In Vigil, 

we explained that “[t]he frequency and nature of the sexual 

contacts with [the defendant] were part of D.S.’ medical history” and that the defendant’s familial relationship with D.S. 

and his residence in the home with her made his identity 
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reasonably pertinent to diagnosis and treatment.20 Additionally, 

we stated that “[d]etails of the abuse are relevant to psychological implications regardless of whether any physical injury 

occurred. . . . [E]valuation of the need for psychological 

treatment is a fundamental component of sexual assault cases 

and, thus, a component of medical diagnosis and treatment in 

such cases.”21

Accordingly, Anderson’s interview elicited facts that were 

reasonably pertinent to Cleaver’s diagnosis and treatment of 

M.B., including the recommendation that M.B. follow up with 

a mental health therapist at the conclusion of her examination. 

Therefore, the court did not err in findings that Anderson was 

acting in the chain of medical care.

(b) M.B.’s Statements to Anderson Were 

Made With Intent to Obtain Medical 

Diagnosis or Treatment

Jedlicka also argues that the State failed to present sufficient 

direct or circumstantial evidence that M.B.’s statements during 

the interview were made for the purpose of medical diagnosis 

or treatment. Specifically, he asserts that neither M.B. nor her 

mother testified that she had medical concerns about M.B., 

that she knew what Project Harmony was, or that she knew 

that M.B. would receive medical treatment after the interview. 

Additionally, Jedlicka argues that the setting of the interview 

was not medical in nature.

[13,14] Under rule 803(3), the fundamental inquiry when 

considering a declarant’s intent “is whether the statement, 

despite its dual purpose, was made in legitimate and reasonable contemplation of medical diagnosis or treatment.”22

Under rule 803(3), there need not be direct evidence of the 

20 Id. at 141, 810 N.W.2d at 698.

21 Id. at 140-41, 810 N.W.2d at 697-98.

22 Herrera, supra note 9, 289 Neb. at 598, 856 N.W.2d at 330, citing Vigil, 

supra note 2.
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declarant’s state of mind; instead, the appropriate state of mind 

of the declarant may be reasonably inferred from the circumstances.23 Determining if the circumstances warrant inferring 

the appropriate state of mind is necessarily a fact-specific 

determination.24

In Vigil, we determined that D.S.’ statements to Lowe were 

pertinent to medical diagnosis or treatment.25 There, we considered the following facts: D.S.’ mother was concerned for D.S.’ 

physical and psychological health; D.S. believed she would 

be physically examined after the interview, and her mother 

had explained to her that certain medical procedures may be 

necessary; D.S. was concerned that she had gotten sick from 

the abuse; and D.S. was checked into the hospital, where the 

forensic interview took place, as a patient.

We also cited another case in Vigil where a court had 

inferred that the victim’s statements in a video-recorded interview were for medical diagnosis or treatment, State v. Donald 

M.

26 There, the court relied on the following facts: The 

10-year-old victim was taken to a child advocacy center in 

a hospital, the interviewer testified that the purpose of the 

interview was to assess the physical and psychological needs 

of the victim, and a social worker testified that she had 

told the victim that the interviewer was going to make sure 

she was safe and determine if a doctor examination would 

be necessary.

Here, there is no direct testimony from M.B. that she made 

her statements to Anderson with the intent to receive medical diagnosis or treatment. However, there is circumstantial 

evidence from which the court could infer that M.B. made her 

statements with such intent.

23 Vigil, supra note 2, citing State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 

(2004).

24 See id.

25 Id.

26 State v. Donald M., 113 Conn. App. 63, 966 A.2d 266 (2009).
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First, as in Donald M., M.B. testified that Anderson told 

her that she was there to help and make sure that nothing 

was wrong with her. Additionally, the video recording shows 

Anderson telling M.B. that she is safe and that nobody is going 

to hurt her and asking M.B. if she will tell the truth and talk 

only about things that are real and true.

Second, as in Donald M., Anderson testified that one purpose of her interviews is to help figure out what needs the 

child may have regarding medical or therapeutic care to make 

a determination concerning any followup treatment or care 

that may be needed for the child.

Third, as in Vigil, M.B.’s mother had an understanding of 

the process that would take place at Project Harmony and consented to Anderson’s interview to get M.B. help. Stigge testified that he explained to M.B.’s mother the process that would 

occur at Project Harmony. Specifically, he requested that she 

take M.B. there for M.B.’s safety and told her that Project 

Harmony had therapists that M.B. could speak with. In Vigil, 

we also stated that “psychological treatment is a fundamental 

component of sexual assault cases and, thus, a component of 

medical diagnosis and treatment in such cases.”27 It is also 

relevant that M.B.’s mother was an emergency room nurse 

and would have a much greater understanding of the followup 

required for a victim of sexual assault.

Jedlicka’s assertion that the absence of certain factors precludes an inference that M.B.’s statements were made for the 

purpose of medical diagnosis or treatment is without merit. As 

mentioned above, the circumstances in every case will be different, and no one fact is dispositive in our analysis.

Therefore, based on the circumstances, the court did not err 

by inferring that M.B. made her statements with the intent to 

receive medical diagnosis or treatment.

27 Vigil, supra note 2, 283 Neb. at 141, 810 N.W.2d at 697-98.
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3. Jedlicka’s Trial Counsel Did Not

Provide Ineffective Assistance

Jedlicka contends that his trial counsel was ineffective for 

(l) failing to object to the admission of exhibit 2; (2) failing to develop and marshal a proper and reasonable defense 

strategy by failing to utilize a rebuttal forensic expert, a 

DNA expert, and a supporting medical expert; and, as a result, 

(3) failing to subject the State’s case to meaningful adversarial testing.

[15] Jedlicka is represented on direct appeal by different 

counsel than at trial. When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant 

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

apparent from the record. Otherwise, the issue will be procedurally barred.28

[16] An ineffective assistance of counsel claim is raised on 

direct appeal when the claim alleges deficient performance 

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 recognize whether the claim was 

brought before the appellate court.29 However, the fact that 

an ineffective assistance of counsel claim is raised on direct 

appeal does not necessarily mean that it can be resolved on 

direct appeal.30 The determining factor is whether the record 

is sufficient to adequately review the question.31 An ineffective assistance of counsel claim will not be resolved on direct 

appeal if it requires an evidentiary hearing.32

28 State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).

29 Ash, supra note 3.

30 Id.

31 Id.

32 Id.
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(a) Two Tests for Claims of Ineffective 

Assistance of Counsel: 

Cronic and Strickland

[17-19] In order to assess the adequacy of counsel’s assistance under the Sixth Amendment, we ordinarily apply the twopart test enunciated by the U.S. Supreme Court in Strickland 

v. Washington.

33 To prevail on a claim of ineffective assistance 

of counsel under the Strickland analysis, the defendant must 

show that his or her counsel’s performance was deficient 

and that this deficient performance actually prejudiced the 

defendant’s defense.34 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.35 The two prongs of this test may be addressed 

in either order, and the entire ineffectiveness analysis should 

be viewed with a strong presumption that counsel’s actions 

were reasonable.36

[20,21] However, Jedlicka directs us to United States v. 

Cronic,

37 the companion case to Strickland. Cronic provides 

narrow exceptions to the Strickland analysis, where the reliability of the adversarial process is in such doubt that prejudice 

to the defendant will be presumed, resulting in a conclusion 

of ineffective assistance of counsel.38 The three circumstances 

where prejudice will be presumed are “(1) where the accused 

is completely denied counsel at a critical stage of the proceedings, (2) where counsel [entirely] fails to subject the 

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

(1984).

34 Betancourt-Garcia, supra note 4.

35 Id.

36 Ash, supra note 3.

37 United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 

(1984).

38 State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000), citing Cronic, supra

note 37.
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prosecution’s case to meaningful adversarial testing, and (3) 

where the surrounding circumstances may justify the presumption of ineffectiveness without inquiry into counsel’s actual 

performance at trial.”39 These circumstances “are so likely to 

prejudice the accused that the cost of litigating their effect in a 

particular case is unjustified.”40

[22] The Fifth Circuit Court of Appeals described the difference between the Strickland and Cronic rules as the difference 

between bad lawyering and no lawyering.41 It explained:

The difference between bad and no lawyering is critical 

. . . because very different results flow from the label 

which is attached to the conduct in question. If the lawyering is merely ineffective, then the decision to upset 

the conviction, which turns on the presence of incompetence and prejudice, is made on a case by case basis. 

See Strickland. If, on the other hand, the defendant was 

constructively denied the assistance of counsel, then the 

conviction must be overturned because prejudice is presumed. See Cronic.

42

The U.S. Supreme Court emphasized the distinction between 

the Strickland and Cronic rules in Bell v. Cone.

43 It stated 

that “[f]or purposes of distinguishing between the rule of 

Strickland and that of Cronic, this difference is not of degree 

but of kind.”44

In Cone, the defendant was being tried for first degree 

murder. Defense counsel raised mitigating circumstances 

and asked for mercy in his opening statement, successfully 

objected to the introduction of prejudicial evidence, and 

39 State v. Davlin, 265 Neb. 386, 401, 658 N.W.2d 1, 12-13 (2003), citing 

Trotter, supra note 38.

40 Cronic, supra note 37, 466 U.S. at 658.

41 Woodard v. Collins, 898 F.2d 1027 (5th Cir. 1990).

42 Id. at 1028.

43 Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002).

44 Id., 535 U.S. at 697.
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adduced mitigating facts regarding his client, but he waived 

his closing argument after a junior prosecutor gave a “‘lowkey’” closing argument, to prevent the lead prosecutor from 

having a rebuttal.45 The Sixth Circuit Court of Appeals applied 

the second Cronic exception to presume prejudice against the 

defendant, because defense counsel’s failure to ask for mercy 

“did not subject the State’s call for the death penalty to meaningful adversarial testing.”46

[23] The Supreme Court reversed, stating that the second 

Cronic exception did not apply. It emphasized that for the 

exception to apply, the “attorney’s failure must be complete” 

and emphasized that counsel must “‘entirely fail[] to subject 

the prosecution’s case to meaningful adversarial testing.’”47

The following statements by the Court emphasize the difference between Strickland and Cronic claims:

Here, respondent’s argument is not that his counsel failed 

to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at 

specific points. . . .

The aspects of counsel’s performance challenged by 

respondent—the failure to adduce mitigating evidence 

and the waiver of closing argument—are plainly of 

the same ilk as other specific attorney errors we have 

held subject to Strickland’s performance and prejudice 

components.48

In accordance with this view, courts rarely apply the Cronic

exceptions.49 The Supreme Court confirmed this as the correct approach in Florida v. Nixon50 when it again emphasized 

45 Id., 535 U.S. at 692.

46 Id., 535 U.S. at 693.

47 Id., 535 U.S. at 697 (emphasis in original).

48 Id., 535 U.S. at 697-98.

49 See, e.g., Malcom v. Houston, 518 F.3d 624 (8th Cir. 2008).

50 Florida v. Nixon, 543 U.S. 175, 189, 125 S. Ct. 551, 160 L. Ed. 2d 565 

(2004).
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that counsel must “entirely fail[] to function as the client’s 

advocate.” Further, the Court stated: “We illustrated just how 

infrequently the ‘surrounding circumstances [will] justify a 

presumption of ineffectiveness’ in Cronic itself. In that case, 

we reversed a Court of Appeals ruling that ranked as prejudicially inadequate the performance of an inexperienced, underprepared attorney in a complex mail fraud trial.”51 Other courts 

have similarly rejected claims of ineffective assistance of 

counsel that are directed at counsel’s performance in acting as 

an advocate for their client.52

(b) Jedlicka Did Not Receive Ineffective 

Assistance of Counsel 

Under Cronic Rule

Jedlicka argues that under Cronic, we should presume prejudice in this case. He alleges specific mistakes that his trial 

counsel made and argues that the aggregate effect of these 

mistakes constitutes a failure to subject the State’s case in chief 

to meaningful adversarial testing. Additionally, he contends 

generally that his counsel’s cross-examinations of the State’s 

witnesses were wholly ineffective.

As discussed above, allegations of bad lawyering are not 

proper for consideration under the Cronic exceptions. Jedlicka 

has made no allegations of deficient performance showing his 

attorney’s failure was complete, constituting a constructive 

denial of the assistance of counsel. As in State v. Dubray,

53

Jedlicka’s counsel advocated on his behalf as an attorney at 

trial. Therefore, Jedlicka’s reliance upon Cronic is misplaced 

and his allegations of specific mistakes are properly considered 

under Strickland instead.

51 Id., 543 U.S. at 190 (citation omitted).

52 See, e.g., Malcom, supra note 49; Scarpa v. Dubois, 38 F.3d 1 (1st Cir. 

1994).

53 State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
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(c) Jedlicka’s Claims of Ineffective 

Assistance of Counsel 

Under Strickland Rule

(i) Failure to Object to Exhibit 1

Jedlicka argues that his trial counsel should have objected 

to exhibit 1, the picture drawn by M.B. depicting the sleeping arrangement when the assault occurred, because it was 

hearsay.

Jedlicka cannot establish prejudice by his counsel’s failure 

to object. Both Jedlicka and M.B. testified that the sleeping situation was as depicted by the drawing. Therefore, 

Jedlicka cannot demonstrate a reasonable probability that the 

result of the proceeding would have been different if counsel 

had objected.

(ii) Stigge’s Testimony

Jedlicka contends that his trial counsel’s decision to ask 

Stigge if there were any inconsistencies in Jedlicka’s statements during his interrogation opened the door for the prosecution to point out the inconsistencies in his statements on redirect, destroying his credibility. He also specifically identifies 

one of Stigge’s answers, which he argues would have otherwise 

been inadmissible, as especially damaging to his credibility: 

“[Prosecutor:] Well, do you feel he was being honest with you? 

[Stigge:] No, I did not.”

Further, Jedlicka asserts that his attorney failed to object to 

several of the prosecution’s leading questions concerning the 

inconsistencies in his statements and that when his attorney 

did successfully object to some of the prosecution’s questions 

on the subject, he failed to have the questions stricken from 

the record.

The record before us is insufficient to determine whether trial 

counsel’s decision to ask about inconsistencies in Jedlicka’s 

statements during his interrogation and his decision to object 

to only some of the prosecution’s leading questions on the 
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subject were part of his trial strategy. Therefore, we decline to 

address these questions on direct appeal.

However, the record is sufficient to address his attorney’s 

failure to move to strike the questions he successfully objected 

to. Both successful objections made by Jedlicka’s attorney 

were made before Stigge answered the prosecutor’s objected-to 

questions. Jury instruction No. 1 read, in part, that “[y]ou must 

not speculate as to possible answers to questions I did not permit to be answered . . . .” Therefore, Jedlicka cannot show that 

he was prejudiced by his attorney’s failure to have the questions stricken from the record.

(iii) Failure to Impeach M.B.

Jedlicka asserts that M.B.’s prior testimony, concerning her 

sleeping position, was inconsistent with her testimony at trial. 

In addition to presenting an opportunity to impeach M.B., her 

prior testimony would have created reasonable doubt as to the 

feasibility of the assault. However, Jedlicka acknowledges that 

this allegation cannot be resolved on direct appeal, because 

M.B.’s deposition is not in evidence. We agree.

(iv) Failure to Retain Expert Witnesses

Jedlicka asserts that his trial counsel should have called 

experts to rebut the following witnesses’ testimony: a forensic DNA analyst who testified that testing M.B.’s underwear 

and vaginal swab for DNA would not have been useful 

in proving or disproving Jedlicka’s guilt; Anderson, whose 

NCAC interview techniques elicited M.B.’s first allegation of 

penetration; and Cleaver, who discussed studies supporting 

her conclusion that digital sexual penetration rarely causes 

vaginal injuries.

The parties recognize that the record is currently insufficient, because there is no evidence that Jedlicka requested 

such experts or any evidence concerning his trial counsel’s 

strategy. The State, however, argues that Jedlicka has not 

sufficiently preserved the record for a postconviction action, 
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because he did not make any allegations of what such experts 

would have actually testified to.

[24] We agree with the parties that the record is currently 

insufficient to review Jedlicka’s claims. From our review of 

the record, we cannot make any meaningful determination 

whether expert testimony beneficial to Jedlicka could have 

been produced or, if it could have, whether trial counsel 

made a reasonable strategic decision not to present certain 

evidence.54 The record is, therefore, insufficient to adequately 

review these claims on direct appeal, and we decline to consider them at this time.55 As a result, we do not consider 

the State’s contention that Jedlicka’s specific allegations of 

deficient conduct are not sufficient to preserve the record for 

appeal. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy before it.56

4. There Was Sufficient Evidence

to Convict Jedlicka

Jedlicka argues that the court erred in overruling his motion 

to dismiss, because the prosecution presented insufficient evidence to warrant a conviction. He asserts that his statement of 

events has never changed, that M.B.’s story has changed—at 

Anderson’s prompting, and that there is no physical evidence 

of the assault.

[25] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether 

the issue is labeled as a failure to direct a verdict, insufficiency 

of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on 

54 See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).

55 See id. See, also, State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014); 

State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).

56 Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).
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the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, 

in the absence of prejudicial error, if the evidence admitted at 

trial, viewed and construed most favorably to the State, is sufficient to support the conviction.57

Accordingly, we will not review the credibility of Jedlicka 

or M.B. as witnesses, resolve the conflicts in his or her testimony, or reweigh the evidence of Jedlicka’s guilt; these were 

determinations appropriate only for the trier of fact. We have 

found no prejudicial error regarding the evidence presented or 

Jedlicka’s assistance of counsel. M.B. testified that Jedlicka 

assaulted her. Along with the other evidence admitted at trial, 

all viewed in favor of the State, there was sufficient evidence for a rational jury to find beyond a reasonable doubt 

that Jedlicka was guilty of first degree sexual assault of a 

child under 12 years of age. This assignment of error is without merit.

VI. CONCLUSION

We conclude that exhibit 2 was properly admitted as evidence under the medical diagnosis and treatment hearsay 

exception. Further, Jedlicka’s contentions of ineffective assistance of trial counsel either lack merit or cannot be resolved, 

because the record on direct appeal is insufficient. Finally, 

Jedlicka’s argument that there was insufficient evidence to 

support the verdict is without merit. Accordingly, Jedlicka’s 

conviction is affirmed.

Affirmed.

57 Betancourt-Garcia, supra note 4.