Statutes: Appeal and Error. Statutory
interpretation presents a question of law, which an appellate
court reviews independently of the lower court's
Constitutional Law: Witnesses: Appeal and
Error. An appellate court reviews de novo a trial
court's determination of the protections afforded by the
Confrontation Clause of the Sixth Amendment to the U.S.
Constitution and article I, § 11, of the Nebraska
Constitution and reviews the underlying factual
determinations for clear error.
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
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.
Sentences: Appeal and Error. An appellate
court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial
Neb. 155] 6. 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.
Statutes. It is not within the province of
the courts to read a meaning into a statute that is not there
or to read anything direct and plain out of a statute.
Constitutional Law: Criminal Law: Trial:
Witnesses. While the Confrontation Clause guarantees
a criminal defendant a face-to-face meeting with witnesses
appearing before the trier of fact, that guarantee is not an
absolute right. But while the face-to-face requirement is not
absolute, it cannot be disposed of easily.
Constitutional Law: Trial:
Witnesses: Public Policy. A defendant's
right to confront accusatory witnesses may be satisfied
absent a physical, face-to-face confrontation at trial only
where denial of such confrontation is necessary to further an
important public policy and only where the reliability of the
testimony is otherwise assured.
Constitutional Law: Trial:
Witnesses: Appeal and Error. An
unconstitutional denial of face-to-face confrontation, like
other types of violations of the Confrontation Clause, is
subject to harmless error review.
Constitutional Law: Trial: Proof: Appeal and
Error. Where the trial error is of a constitutional
dimension, the burden must be on the beneficiary of the error
to prove beyond a reasonable doubt that the error did not
contribute to the verdict obtained.
Verdicts: Juries: Appeal and Error. Harmless
error review ultimately looks to the basis on which the trier
of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty
verdict would surely have been rendered, but, rather, whether
the actual guilty verdict rendered in the questioned trial
was surely unattributable to the error.
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
Neb. 156] 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.
Sentences: Appeal and Error. Where a
sentence imposed within the statutory limits is alleged on
appeal to be excessive, the appellate court must determine
whether a sentencing court abused its discretion in
considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
Sentences. In determining a sentence to be
imposed, relevant factors customarily considered and applied
are the defendant's (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6)
motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the
commission of the crime.
___. The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge's
observation of the defendant's demeanor and attitude and
all the facts and circumstances surrounding the
from the District Court for Harlan County: Terri S. Harder,
Brandon Brinegar, of Ross, Schroeder & George, L.L.C.,
Douglas J. Peterson, Attorney General, and Austin N. Relph
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
S. Smith appeals his convictions and sentences for first
degree sexual assault of a child and felony child abuse
following a bench trial in the district court for Harlan
County. Smith claims that the court violated his
constitutional right of confrontation when it allowed the
alleged victim to testify outside Smith's presence. Smith
also makes claims of ineffective assistance of trial counsel,
insufficiency of the [302 Neb. 157] evidence, and excessive
sentences. We affirm Smith's convictions and sentences.
lived in Alma, Nebraska, with his wife, Rochelle Smith, their
two children, and Rochelle's two children from a prior
relationship. The State originally charged Smith with four
counts of first degree sexual assault of a child in violation
of Neb. Rev. Stat. § 28-319.01(1)(b) (Reissue 2016) and
four counts of felony child abuse in violation of Neb. Rev.
Stat. § 28-707(1)(a) or (e) and (4) (Reissue 2016). The
State amended the information to charge one count of each
offense. The alleged victim with respect to each charge was
R.F., who is Rochelle's daughter from a prior
relationship and who was born in February 2001. Smith was
born in January 1978. The offenses were charged as having
been committed between August 1 and September 30, 2016, when
R.F. was 15 years old. Smith's trial on the charges was
held in October 2017, when R.F. was 16 years old.
October 2016, police investigated suspected sexual abuse of
R.F. by Ronald Lauhead, an adult friend of Smith and
Rochelle. The investigation began after Smith reported to
police that one of the other children had told him that she
had seen Lauhead naked with R.F. The investigation led police
to suspect that Smith and Rochelle had also been involved in
the abuse of R.F., and eventually Smith, Rochelle, and
Lauhead were each charged with offenses related to such
waived his right to a jury trial, and the district court
scheduled a bench trial for October 24, 2017. The State
called Rochelle as its first witness. Rochelle's
testimony was as follows.
time of the trial, Rochelle was divorced from Smith. She had
married Smith in 2007, and they had been married for over 10
years prior to the divorce. Rochelle has four children-two
older children from a prior relationship and two younger
children with Smith. R.F. is the oldest of Rochelle's
children. In 2013, Rochelle and Smith and the four children
[302 Neb. 158] moved into a house in Alma. Soon thereafter,
Rochelle introduced Smith to Lauhead, whom she had known from
high school. Smith and Lauhead became friends, and Lauhead
frequently spent time at Smith and Rochelle's house. One
night in March 2016, when the children were asleep in their
beds, Smith invited Lauhead to engage in a sexual encounter
with Smith and Rochelle. Rochelle testified that she
initially objected, but she eventually gave in and the three
engaged in sexual activities in Smith and Rochelle's
bedroom. The next day, Rochelle told Smith that she was not
comfortable with what they had done with Lauhead. However,
Smith convinced Rochelle to engage in sexual encounters with
Lauhead "[t]wo or three more times" in April.
last time that Rochelle recalled engaging in group sexual
activity with Smith and Lauhead was at the end of September
2016. Rochelle finished working at 11 p.m., and when she
returned home, Smith and Lauhead were watching television in
the living room. The children were asleep in their rooms.
Eventually, Smith "suggested another threesome" and
Rochelle "went along with" the suggestion. The
three went to Smith and Rochelle's bedroom and removed
their clothing. Smith and Rochelle lay on their bed touching
one another, while Lauhead performed oral sex on Rochelle.
point, Smith got out of bed, put on his boxer shorts and left
the bedroom. Shortly thereafter, Smith returned to the
bedroom with R.F., who was wearing sweatpants and a T-shirt.
Smith said that R.F. "was going to join in on the
activity." Rochelle told him "no, it wasn't
going to happen," but Smith threatened that "if it
didn't happen he was going to take all the kids and leave
[the] state and [Rochelle would] never see them again."
Smith then proceeded to undress R.F. and touch her breasts
with his hands as they were standing beside the bed. After
Smith had taken all of R.F.'s clothes off, he had her lie
down on the bed and then he lay on the bed with R.F. and
Rochelle. Lauhead, who had been performing oral sex on
Rochelle, moved to the other side of the bed beside [302 Neb.
159] R.F. Lauhead and Smith were both touching R.F.'s
breasts and vagina.
response to the State's question regarding how Smith was
touching R.F.'s vagina, Rochelle testified, "Just
putting his hand on it and rubbing it." The State
further inquired regarding Smith's touching R.F.'s
vagina by asking, "[D]id you see him put his finger
inside of her vagina?" Rochelle responded,
"No." The State asked, "What did you see him
do?" Rochelle responded, "He was just fondling the
top of it." When the State asked Rochelle to describe
what she meant by "fondling," Rochelle stated,
"Rubbing it." The State returned to the topic in
its redirect examination of Rochelle. The State asked
Rochelle to describe Smith's touching of R.F.'s
vagina in "better detail." Rochelle replied that
"[h]e was touching the outward part of her vagina."
The State asked, "Was that between the skin folds known
as the labia?" Rochelle replied, "Yes." Upon
further questioning, Rochelle testified that Smith had
touched R.F. "between the lips of her vagina" for
"[m]aybe three to five seconds" and that she had
seen him do so "[j]ust once." The State also asked,
"But you did not see him actually insert his finger into
her vaginal opening?" Rochelle replied, "No,
testified on direct examination that during the encounter
among the four, Lauhead had vaginal intercourse with R.F.,
while Smith had vaginal intercourse with Rochelle. She also
testified that Smith did not attempt to stop Lauhead from
having intercourse with R.F. After the encounter was
finished, the four all got dressed, and Lauhead went home
while R.F. returned to her bed. Thereafter, Rochelle never
talked to R.F. about what had happened and R.F. did not try
to talk to Rochelle about it.
cross-examination, Rochelle testified that she had been
arrested for child abuse with respect to the abuse of R.F.
and that, as a result, her testimony in this case was being
given pursuant to a plea agreement related to those charges.
According to Rochelle, pursuant to the plea agreement, some
charges [302 Neb. 160] against her were being dismissed and
the State agreed not to attempt to terminate her parental
testified that in her initial statement to police regarding
the abuse of R.F., she had indicated that she had refused to
participate in the sexual activity involving Smith. Lauhead,
and R.F. She also testified that in the initial statement,
she had said that Smith had touched R.F.'s breasts but
she had not said that Smith touched R.F.'s vagina. On
cross-examination, Rochelle testified that an examination in
October 2016 revealed that R.F. was pregnant and that
Rochelle subsequently learned that neither Smith nor Lauhead
was the father of the baby.
Rochelle's testimony was completed, the State called R.F.
as a witness. Prior to trial, the State had filed a motion to
allow R.F. to testify in camera and outside Smith's
presence. The State asserted in the motion that the request
was being made pursuant to Neb. Rev. Stat. §
29-1926(1)(d) (Reissue 2016), which generally relates to
accommodations for child victims and child witnesses. In this
case, the State sought in camera testimony by R.F. because of
its concern that R.F. "will be harmed emotionally and
psychologically if forced to testify in the presence of . . .
Smith." The State further asserted in the motion that
R.F., who was 16 years old at the time, "has been
diagnosed with Fragile X and ...