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.
Effectiveness of Counsel: Constitutional Law:
Statutes: Records: Appeal and Error. Whether a claim
of ineffective assistance of trial counsel can be determined
on direct appeal presents a question of law, which turns upon
the sufficiency of the record to address the claim without an
evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement. An
appellate court determines as a matter of law whether the
record conclusively shows that (1) a defense counsel's
performance was deficient or (2) a defendant was or was not
prejudiced by a defense counsel's alleged deficient
Homicide: Intent. A person commits first
degree murder if he or she kills another person purposely and
with deliberate and premeditated malice.
Criminal Law: Homicide: Proof: Words and
Phrases. In a homicide case, corpus delicti is the
body or substance of the crime-the fact that a crime has been
committed. It is not established until it is proved that a
human being is dead and that the death occurred as a result
of the criminal agency of another.
Homicide: Circumstantial Evidence: Proof.
The body of a missing person is not required to prove the
corpus delicti for homicide. Instead, [301 Neb. 489] courts
have generally held that circumstantial evidence associated
with the victim's disappearance can be sufficient to
establish the death.
Homicide: Intent: Circumstantial Evidence:
Proof. Purposeful, deliberate, premeditated murder
may be proved circumstantially.
Homicide: Intent: Words and Phrases. In the
homicide context, deliberate means not suddenly, not rashly,
and requires that the defendant considered the probable
consequences of his or her act before doing the act.
___: ___. The term "premeditated" means to have
formed a design to commit an act before it was done.
Homicide: Intent. One kills with
premeditated malice if, before the act causing death occurs,
one has formed the intent or determined to kill the victim
without legal justification.
Homicide: Intent: Time. No particular length
of time for premeditation is required, provided the intent to
kill is formed before the act is committed and not
simultaneously with the act that caused the death.
___: ___: ___. The design or purpose to kill may be formed
upon premeditation and deliberation at any moment before the
homicide is committed.
Criminal Law: Evidence: Intent. The intent
with which an act is committed is a mental process and may be
inferred from the words and acts of the defendant and from
the circumstances surrounding the incident.
Arson. A person commits arson in the second
degree if he or she intentionally damages a building or
property contained within a building by starting a fire or
causing an explosion.
Arson: Circumstantial Evidence: Proof.
Circumstantial evidence is sufficient to support a conviction
for arson if such evidence and the reasonable inferences that
may be drawn therefrom establish guilt beyond a reasonable
Effectiveness of Counsel: Postconviction: 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
Effectiveness of Counsel: Postconviction: Records:
Appeal and Error. 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
Effectiveness of Counsel: Records: Appeal and
Error. The fact that an ineffective assistance of
counsel claim is raised on direct appeal does [301 Neb. 490]
not necessarily mean that it can be resolved. The determining
factor is whether the record is sufficient to adequately
review the question.
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
Effectiveness of Counsel: Jury Trials:
Waiver. The decision to waive a jury trial is
ultimately and solely the defendant's, and, therefore,
the defendant must bear the responsibility for that decision.
___: ___: ___. Counsel's advice to waive a jury trial can
be the source of a valid claim of ineffective assistance only
when (1) counsel interferes with the client's freedom to
decide to waive a jury trial or (2) the client can point to
specific advice of counsel so unreasonable as to vitiate the
knowing and intelligent waiver of the right.
Trial: Joinder. Prejudice from joinder
cannot be shown if evidence of one charge would have been
admissible in a separate trial of another charge.
Trial: Constitutional Law: Testimony. A
defendant has a fundamental constitutional right to testify.
Trial: Attorney and Client: Testimony:
Waiver. The right to testify is personal to
the defendant and cannot be waived by defense counsel's
Trial: Attorney and Client: Testimony.
Defense counsel bears the primary responsibility for advising
a defendant of his or her right to testify or not to testify,
of the strategic implications of each choice, and that the
choice is ultimately for the defendant to make.
Trial: Attorney and Client: Effectiveness of Counsel:
Testimony: Waiver. Defense
counsel's advice to waive the right to testify can
present a valid claim of ineffective assistance of counsel in
two instances: (1) if the defendant shows that counsel
interfered with his or her freedom to decide to testify or
(2) if counsel's tactical advice to waive the right was
from the District Court for Douglas County: Timothy P. Burns,
C. Riley, Douglas County Public Defender, Lori A. Hoetger,
and Scott C. Sladek for appellant.
Neb. 491] Douglas J. Peterson, Attorney General, Sarah E.
Marfisi, and Erin E. Tangeman for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg,
JJ., and Moore, Chief Judge.
Farver disappeared on November 13, 2012, and her body has
never been found. About 4 years after Farver's
disappearance, Shanna E. Golyar was charged with Farver's
murder and with arson. At trial, the State introduced
uncontested evidence that Golyar considered Farver a romantic
rival and that Golyar posed as Farver (and others) for
several years in emails, texts, and on social media. While
posing as someone else, Golyar confessed in several emails to
was found guilty of first degree murder and second degree
arson after a bench trial. She was sentenced to life
imprisonment on the murder conviction and to a consecutive
sentence of 18 to 20 years' imprisonment on the arson
conviction. In this direct appeal, Golyar contends the
evidence was insufficient to support the convictions and
claims her trial counsel was ineffective in various ways. We
Golyar Meets David Kroupa
spring or early summer 2012, Golyar started dating David
Kroupa after meeting him through an online dating site.
Kroupa described the relationship as "[c]asual" and
informed Golyar he was also dating other women. From almost
the beginning, however, Golyar wanted a commitment from
Kroupa. The State's general theory was that Golyar was
obsessed with Kroupa and did not want him dating other women.
Kroupa Meets Farver
the end of October 2012, Kroupa met the victim in this case,
Farver. Kroupa's first date with Farver was on October 29
at a restaurant in Omaha, Nebraska. During the date,
Kroupa's [301 Neb. 492] cell phone began "blowing
up" with calls and text messages from Golyar. He
initially ignored the messages, but when they continued, he
contacted Golyar and told her he was on a date and could not
respond. When they left the restaurant, Kroupa and Farver
went to Kroupa's nearby apartment.
immediately after they arrived, Golyar started ringing the
bell at the security door of Kroupa's apartment building.
Kroupa left Farver in his apartment and went to the security
door to speak with Golyar. Golyar was crying and upset and
insisted Kroupa let her in so she could retrieve some of her
belongings from his apartment. Kroupa left Golyar at the
security door and went back to his apartment to explain the
situation to Farver. Farver decided to leave, and as she did
so, she passed by Golyar, who was still standing by the
security door. Farver got into her black Ford Explorer, which
was parked near the security door, and drove away.
Farver left, Kroupa let Golyar into his apartment to retrieve
her belongings. She was still upset and did not stay long
before he asked her to leave. Not long after Golyar left,
Kroupa and Farver spoke on the telephone and Kroupa then
traveled to Farver's home in Macedonia, Iowa, where he
spent the night.
and Farver continued to see a lot of each other over the next
several weeks. Kroupa also continued to see Golyar during
this time period. On November 9 or 10, 2012, Farver's
Explorer was vandalized with spray paint while parked in
Macedonia. Investigators subsequently learned that Golyar,
via a Facebook account she had created under a false persona,
claimed to be in Macedonia during that time period. That
impos-ter Facebook account had also attempted to
worked in Omaha at a business not far from Kroupa's
apartment. Starting Monday, November 12, 2012, she was
beginning a weeklong project at work that would require her
to work late hours. Farver arranged for her teenage son to
stay with her mother and stepfather during that week, and
Kroupa agreed Farver could spend the week with him at his
apartment. Farver went to work as planned on Monday, November
12, [301 Neb. 493] and left work between 8 and 9 p.m. Her
coworkers expected her at work the next morning. Farver spent
the night with Kroupa at his apartment.
left for work on November 13, 2012, at approximately 6:20
a.m. At that time, Farver was awake and using her laptop
computer. No one has seen Farver since.
Farver's Cell Phone, Debit Card, and Facebook Account
from Farver's employer showed she called in on the work
project at 6:15 a.m. on November 13, 2012. Other records
showed Farver logged into her Facebook account from
Kroupa's apartment at 6:39 a.m. and logged out at 6:42
a.m., Farver's Facebook account "unfriended"
Kroupa. At 10 a.m., Kroupa received a text from Farver's
cell phone asking him if he wanted to live together. This
surprised him, as he thought Farver agreed they were only
involved in a casual relationship, and he responded,
"No." Twenty seconds later, he received an angry
text from Farver's cell phone breaking off the
November 13, 2012, Farver's cell phone texted
Farver's mother. The text said Farver had found a new
job, which surprised her mother. Farver's mother texted
back over the course of the next several days and asked
questions, including when Farver was coming to pick up her
son for an upcoming family wedding, but received no response.
This was unusual because Farver and her mother typically had
daily contact. Farver's mother reported her daughter
missing on Friday, November 16.
November 15, 2012, Farver's employer received a text from
her cell phone, stating that she was resigning and was
sending "Shanna Golyar" to replace her. Later that
day, Golyar filled out an online application with the
employer. On November 16, Farver's debit card was used to
make purchases of $167.78 and $226.56 at two separate
discount stores in Omaha. An item purchased at one of the
stores was a shower curtain with a distinctive
black-and-white floral pattern.
Neb. 494] On November 17, 2012, Farver's mother received
another text from Farver's cell phone. It included a
photograph of a check for $5, 000 made out to Farver and
signed by Golyar, and asked Farver's mother to let Golyar
into Farver's home to retrieve a bedroom set Golyar had
allegedly purchased via the check. Farver's mother was
suspicious about the text and contacted police. Police had
Farver's service provider "ping" her cell phone
to attempt to locate it, and the ping showed that in the
early hours of November 18, the cell phone was at an Omaha
location not far from Golyar's residence. Police searched
for Farver's cell phone, but it was never found.
Facebook account continued to be active after November 13,
2012, making posts and sending messages. Trial evidence
demonstrated, however, that the account making the posts and
sending the messages was actually an imposter account,
created using photographs and information available on
Farver's actual Facebook account. The imposter account
making those posts was linked via digital evidence to Golyar.
This imposter account attempted to contact both Farver's
mother and Farver's teenage son. Photographs from
Farver's original Facebook account were also used by
Golyar to make online dating profiles in Farver's name.
Harassment of Golyar and Kroupa
in November 2012 and continuing until approximately December
2015, both Golyar and Kroupa began receiving frequent
harassing texts and emails, purportedly from Farver. The
texts came from as many as 30 different telephone numbers.
The emails came from as many as 30 different email accounts.
Kroupa alone received 50 to 60 such emails per day, in
addition to frequent texts and missed telephone calls. The
texts and emails frequently referred to Golyar as a
reported vandalism to her property, allegedly by Farver, on
November 23, 2012, and February 12 and April 1, 2013. Golyar
also reported someone had broken into her garage prior to
November 23, 2012, and stolen checks [301 Neb. 495] from her.
Kroupa reported vandalism to his property in July. October,
and December 2013. Many of these acts of vandalism involved
messages referring to Golyar as a "whore." Each
time an act of vandalism occurred, Kroupa, Golyar, or both
would receive a text or email from "Farver" taking
responsibility for the act. The acts of vandalism tended to
occur at times when Kroupa was becoming less interested in
Golyar, and the two were drawn back together by their mutual
fear or dislike of Farver.
January 2013, with Kroupa's consent, the police
downloaded information from his cell phone to obtain data
related to the texts and emails purportedly sent by Farver.
At the same time, with Golyar's consent, police also
downloaded similar information from her cell phone. The
downloads were "logical" downloads, which did not
include data previously deleted from the devices.
Butterbaugh met Golyar in September 2010 through an online
dating site, and they dated until September 2015. Butterbaugh
understood the relationship was exclusive. During the course
of that relationship, Butterbaugh helped Golyar with her
bills, helped her buy a car, let her move into his residence
with her two children, and cared for her children.
January 2013, Butterbaugh began receiving text and email
messages, purportedly from Farver. In those messages,
"Farver" explained she was one of Golyar's
friends and Golyar had given her Butterbaugh's contact
information in case "Farver" ever needed an
emergency contact for Golyar. When Butterbaugh asked Golyar
about the messages, she confirmed this and said Farver was
her friend. In general, the texts and emails between
"Farver" and Butterbaugh discussed
Butterbaugh's relationship with Golyar. Butterbaugh did
not learn of Kroupa until Golyar's cell phone was
downloaded by the police. At that time, Golyar told
Butterbaugh she had dated Kroupa before she met Butterbaugh
and that they had remained friends.
Neb. 496] Golyar and her two children moved in with
Butterbaugh in July 2013 and stayed until December 2015 or
January 2016. During the time she dated and lived with
Butterbaugh, Golyar did not tell him she was being harassed
by Farver or anyone else. While staying with Butterbaugh,
Golyar had access to his Wi-Fi network and several ...