1. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact.
2.___: ___. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error.
3.___: ___. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision.
4. Appeal and Error. Absent plain error, an appellate court ordinarily will not address an issue that was not raised in the trial court.
5. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. Ineffective assistance of counsel claims are generally addressed through a postconviction action. This is frequently because the record is insufficient to review the issue on direct appeal.
6. Effectiveness of Counsel: Postconviction. Where no plausible explanation for an attorney's actions exists, to require the defendant to file a postconviction action can only be a waste of judicial time.
7. 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 counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.
8.___:___ . To show deficient performance, a defendant must show that counsel 's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.
9. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the petitioner must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have [286 Neb. 257] been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
10. Effectiveness of Counsel: Appeal and Error. In addressing the "prejudice" component of the test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052. 80 L.Ed.2d 674 (1984), an appellate court focuses on whether a trial counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.
11. Trial: Joinder. Offenses are properly joinable under Neb. Rev. Stat. § 29-2002(1) (Reissue 2008) if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
12. ___:___. Charges arise out of the same act or transaction if they are so closely linked in time, place, and circumstance that a complete account of one charge cannot be related without relating details of the other charge.
13. Trial: Joinder: Evidence. To be part of the same act or transaction, there must be substantially the same facts; i.e., one charge cannot be proved without presenting evidence of the other charge.
Appeal from the District Court for Scotts Bluff County: Leo Dobrovolny, Judge.
James R. Mowbray and Todd W. Lancaster, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
Wright, Connolly, Stephan, Miller-Lerman, and Cassel, JJ., and Riedmann, Judge.
I. NATURE OF CASE
Eric O. Rocha, Sr., was convicted of first degree sexual assault of a child and four counts of child abuse. In this direct appeal, Rocha claims trial counsel was ineffective in failing to move to sever the sexual assault charge from the child abuse charges and in failing to request an instruction limiting the jury's consideration of the evidence of one crime to that particular crime. He also alleges trial error in failing to instruct the jury on the lesser-included offense of negligent child abuse and in failing to instruct the jury on the defense of parental justification of use of force. For the reasons set forth, we reverse the [286 Neb. 258] judgments of conviction, vacate the sentences, and remand the cause for further proceedings.
On March 8, 2011, an officer with the Nebraska State Patrol conducted an interview of J.S., a young girl, who was 8 years old at the time of trial. After the interview, the officer obtained a search warrant for Rocha's residence in Scottsbluff, Nebraska. At the residence, a slipper and a belt were retrieved and photographs were taken of the residence, including a photograph of a bedroom door which could be locked from the outside of the room.
Rocha was charged with one count of first degree sexual assault of a child and four counts of felony child abuse. J.S. was the alleged victim of the sexual assault and one of the alleged victims of child abuse. Her three brothers, J.C., A.R., and A.S., were the other alleged child abuse victims. A second amended information alleged that Rocha committed sexual assault from October 14, 2009, through February 2011 and that Rocha committed child abuse from June 11, 2008, through February 2011.
At trial, the evidence showed that Rocha and Jessica S. were married and lived together. J.S., J.C., A.R., and A.S. are Jessica's children, but Rocha is not their biological father. He supervised the children while Jessica was at work and the children were at home.
J.S. testified that during the evenings, Rocha came into her bedroom, which she shared with her brothers. He took her into the living room and forced her to perform oral sex. She gave her story as to what occurred during the assaults. The assaults allegedly occurred in the living room, in her mother's bedroom, in the bathrooms, and in the car.
In the car, Rocha allegedly made J.S. sit on his lap with her pants and underwear partially off. Rocha's "private area" went "in [her] bottom, " and she said that hurt. Rocha also allegedly touched her vaginal area with his finger.
J.S. claimed Rocha hit her with a slipper on her arm. She claimed Rocha hit her bottom with a belt, which hurt. Rocha also blew marijuana smoke into her mouth. She said she did [286 Neb. 259] not get enough to eat at dinner because the children did not get "seconds." She said that on one occasion, Rocha made her drink beer and then made her perform oral sex.
J.S. was afraid of Rocha because he hurt her brothers. She said Rocha choked A.R. by "dragging him up in the wall" with his hands around his throat. She also saw Rocha push his fingernail into A.R.'s ear. Rocha spanked A.R. and A.S. with the belt and the slipper. And J.S. saw Rocha choke A.S. in the bathroom.
J.C. explained that the bedroom he shared with J.S., A.R., and A.S. locked from the outside and that sometimes the boys were locked in the bedroom while J.S. was in the living room with Rocha. J.C. testified he did not always get enough food to eat. He saw Rocha smoke something green in color, and the smoke hurt the boys' eyes.
Rocha did not hit J.C, but J.C. saw Rocha hit the other children. Rocha spanked J.S. with his hand, sometimes with her pants down. Rocha spanked A.R.'s bottom with his hand or with a sandal. Rocha also hit A.R.'s bottom and hands with a wooden stick and hit A.R.'s bottom with the tube of a vacuum cleaner. He made A.R. stand in a corner, and one time, J.C. saw Rocha push A.R.'s head into the wall, giving A.R. a bloody nose. On another occasion, Rocha threw A.R. across the kitchen floor. He "thump[ed]" A.R. on the head with his finger or a wooden spoon. Rocha hit A.R. on his side if he was not behaving. J.C. testified that Rocha spanked A.S. with his hand, but never used anything else to hit A.S.
J.S.' kindergarten teacher testified that until November 2009, J.S. was a "bubbly" 5-year-old, who then became very agitated and nervous, cried a lot, and did not want to go home. J.S. refused to take an art project home. The teacher explained that J.S. wanted to be perfect in doing everything at school and would erase her papers repeatedly. When coloring, J.S. was afraid to go outside the lines. She would cry at school because she was hungry or afraid to go home. The teacher gave J.S. and the other students in the class snacks twice a day to address J.S.' hunger. J.S. was frightened and uneasy when she talked with the teacher about her home. She was afraid to go home if her new shoes were dirty, so she [286 Neb. 260] "spit clean[ed]" them. After the teacher observed this behavior, she helped J.S. clean her shoes with a rag, and did so regularly after J.S. sobbed for fear she would get in trouble at home.
J.S.' kindergarten teacher said that toward the end of November 2009, J.S. used the bathroom 15 or 20 times each day to wash her hands, arms, legs, hair, and face. The teacher testified that this behavior was different for J.S. and unusual for any kindergarten student. J.S.' first grade ...