Constitutional Law: Statutes: Appeal and
Error. The constitutionality of a statute presents a
question of law, which an appellate court independently
Rules of Evidence: Appeal and Error. An
appellate court reviews for abuse of discretion a trial
court's evidentiary rulings on relevance, whether the
probative value of evidence is substantially outweighed by
the danger of unfair prejudice, and the sufficiency of a
party's foundation for admitting evidence.
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: 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
Constitutional Law: Statutes: Presumptions.
A statute is presumed to be constitutional, and all
reasonable doubts are resolved in favor of its
Neb. 326] 6. Constitutional Law:
Statutes: Waiver. The proper procedure for raising a
facial constitutional challenge to a criminal statute is to
file a motion to quash, and all defects not raised in a
motion to quash are taken as waived by a defendant pleading
the general issue.
Constitutional Law: Statutes: Standing:
Proof. Standing to challenge the constitutionality
of a statute under the federal or state Constitution depends
upon whether one is, or is about to be, adversely affected by
the language in question; to establish standing, the
contestant must show that as a consequence of the alleged
unconstitutionality, the contestant is, or is about to be,
deprived of a protected right.
Constitutional Law: Equal Protection. The
Nebraska Constitution and the U.S. Constitution have
identical requirements for equal protection challenges. The
Equal Protection Clause requires the government to treat
similarly situated people alike.
Equal Protection. The Equal Protection
Clause does not forbid classifications; it simply keeps
governmental decisionmakers from treating differently persons
who are in all relevant respects alike.
Legislature: Equal Protection. If a
legislative classification involves either a suspect class or
a fundamental right, courts will analyze the classification
with strict scrutiny.
Equal Protection: Words and Phrases. A
suspect class is one that has been saddled with such
disabilities or subjected to such a history of purposeful
unequal treatment as to command extraordinary protection from
the majoritarian political process.
Equal Protection. Age itself is not a
suspect classification for equal protection purposes.
13. _ .
When a classification created by state action does not
jeopardize the exercise of a fundamental right or categorize
because of an inherently suspect characteristic, the Equal
Protection Clause requires only that the classification
rationally further a legitimate state interest.
Equal Protection: Proof. Under the rational
basis test, whether an equal protection claim challenges a
statute or some other government act or decision, the burden
is upon the challenging party to eliminate any reasonably
conceivable state of facts that could provide a rational
basis for the classification.
Equal Protection. Under the rational basis
test, the Equal Protection Clause is satisfied as long as (1)
there is a plausible policy reason for the classification,
(2) the legislative facts on which the classification is
based may rationally have been considered to be true by the
governmental decisionmaker, and (3) the relationship of the
classification to its goal is not so attenuated as to render
the distinction arbitrary or irrational.
Constitutional Law: Criminal Law: Sentences:
Legislature: Courts. The Legislature is clothed with
the power of defining crimes and [302 Neb. 327] misdemeanors
and fixing their punishment; and its discretion in this
respect, exercised within constitutional limits, is not
subject to review by the courts.
Constitutional Law: Criminal Law: Sentences.
With regard to the mandatory minimum sentence, the guarantees
of due process and equal protection, as well as the
prohibition against cruel and unusual punishment, do not
require individual sentencing in noncapital cases.
Witnesses: Impeachment. As a general rule, a
witness makes an inconsistent or contradictory statement if
the witness refuses to either deny or affirm that he or she
made the prior statement, or if the witness answers that he
or she does not remember whether he or she made the prior
Evidence: Hearsay. Prior extrajudicial
statements of a witness may be received into evidence for the
limited purpose of assisting the jury in ascertaining the
credibility of the witness, but unless they are otherwise
admissible, they may not be considered as substantive
evidence of the facts declared in the statements.
Trial: Witnesses: Impeachment. It is
sometimes difficult to determine whether a question attempts
impeachment or rises to the level of a charge of recent
fabrication, and it is not an abuse of discretion to allow
the question where the impeachment is susceptible to either
Hearsay: Time. A declarant's consistent
out-of-court statements are permitted to rebut a charge of
recent fabrication, improper influence, or improper motive
when those statements were made before the charge of recent
fabrication, improper influence, or improper motive.
Sexual Assault: Proof: Words and Phrases.
The slightest intrusion into the genital opening is
sufficient to constitute penetration, and such element may be
proved by either direct or circumstantial evidence.
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. 328] 25. Effectiveness of Counsel: Records:
Appeal and Error. On direct appeal, allegations of
how the defendant was prejudiced by trial counsel's
allegedly deficient conduct are unnecessary in an appellate
court determination of whether the trial record supports the
_: _ . 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.
from the District Court for Lancaster County: Darla S. Ideus,
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
NATURE OF CASE
J. Hibler, Jr., appeals his convictions and sentences in the
district court for Lancaster County, following a jury trial,
for first degree sexual assault of a child, incest with a
person under 18 years of age, and third degree sexual assault
of a child. On appeal, Hibler argues that first degree sexual
assault of a child under Neb. Rev. Stat. §
28-319.Ol(1)(a) and (2) (Reissue 2016) is unconstitutional,
because the statute subjects the defendant to a mandatory
minimum sentence based solely on the ages of the victim and
perpetrator. We conclude that the age classifications
defining sexual assault of a child in § 28-319.Ol(1)(a)
and associated mandatory sentence in § 28-319.01(2) are
not unconstitutional. We also determine that the district
court did not abuse its discretion when it made various
evidentiary rulings and that the evidence was sufficient to
support Hibler's convictions. We reject several of
Hibler's claims of ineffectiveness of trial counsel but
do not reach the merits of various other ineffectiveness
claims. For the reasons explained below, we affirm.
Neb. 329] II. STATEMENT OF FACTS
State charged Hibler by information with one count of first
degree sexual assault of a child, § 28-319.01(2); one
count of incest with a person under 18 years of age, Neb.
Rev. Stat. § 28-703 (Reissue 2016); and one count of
third degree sexual assault of a child, Neb. Rev. Stat.
§ 28-320.01(3) (Reissue 2016). Before trial, Hibler
filed a motion to quash based on his claim that the
provisions of § 28-319.01(2) "violate
[Hibler's] constitutional rights under the Fifth,
Fourteenth and Eighth Amendment[s] to the United States
Constitution and the correlative provisions of the Nebraska
Constitution." At a hearing on the motion to quash,
Hibler's counsel noted the motion was being filed
pursuant to State v. Stone, 298 Neb. 53, 902 N.W.2d
197 (2017), which states that to preserve a constitutional
challenge to the mandatory minimum sentence which could be
imposed, a motion to quash must be filed. The motion was
Testimony of J.H.
the victim, was 13 years old when she testified as the
State's first witness. J.H. is the oldest of the three
biological children of Hibler and his former wife, A.H. J.H.
testified that she was 11 years old during the events alleged
in the information. She testified that her parents were still
married in 2015, but she thought they were now divorced.
testified that Hibler began giving her massages when she was
11 years old, following a Soap Box Derby win in 2015. Hibler
would massage her when they would run and bike together.
Initially, Hibler touched only J.H.'s back and legs when
he massaged her.
stated that one night when she was 11 years old, Hibler began
to massage her "butt" during a massage in A.H. and
Hibler's bedroom. J.H. testified that beginning in
October 2015 and continuing through January 2016, Hibler
touched her inappropriately more than one time, but less than
10 times. J.H. believed the inappropriate touching occurred
about four or [302 Neb. 330] five times. J.H. testified
specifically that one incident occurred at her
grandfather's home, one incident occurred in J.H.'s
bedroom, and the other incidents were in the bedroom Hibler
shared with A.H., J.H.'s mother.
evidence showed that one of J.H.'s brothers has cancer
and that A.H. would take him out of state once a month for
treatment. J.H. stated A.H. and her brother were out of town
when Hibler massaged her backside. J.H. was lying on her
stomach on Hibler's bed, and she was not wearing any
clothes, but had a towel over her body.
testified that another incident occurred during the morning
in J.H.'s room. J.H. had a pain in her chest and Hibler
told her to let him give her a massage. He told her to remove
her bra so he could massage her chest. J.H. indicated that
she stated no but that Hibler stated it "would make it
better," so J.H. removed her bra. Hibler then massaged
her breasts for possibly 5 or 10 minutes. J.H. was sitting on
her bed, and Hibler was sitting next to her.
also testified that Hibler touched her genitals multiple
times. Sometime in 2015, J.H. and Hibler were spending the
night at her grandfather's home in Omaha, Nebraska; J.H.
believed A.H. and her brother were not at the home. J.H.
stated that she was lying on her side while Hibler was
massaging her from behind and that at some point, he put his
hand in her underwear "and started touching [her]
vagina." J.H. described that it felt like a
"swiping motion" and compared it to "when a
girl goes to the bathroom and she takes the toilet paper, she
wipes. She doesn't like stick it up her vagina,
doesn't like just . . . pat it. She swipes it and then
puts it in the toilet." J.H. testified that she could
feel his fingers "moving up and down [her] vagina"
and that it lasted a long time. She testified that she did
not tell anyone, because she was scared.
testified that Hibler also touched her genitals with the
"swiping motion" at the family home in Lincoln,
Nebraska. J.H. thought that it occurred about three times and
that it happened when A.H. and her brothers were out of town
for her brother's treatment. J.H. described the swiping
episodes as [302 Neb. 331] follows: she would be half asleep
but still aware of her surroundings, then Hibler would put
his hand under her underwear and start touching her vagina in
a swiping motion.
described an incident which occurred with Hibler in his
bedroom during which Hibler asked J.H. to wear a pair of
A.H.'s purple underwear, which tied on the sides.
According to J.H., Hibler was massaging her and then had her
put on the underwear that tied and began massaging her legs.
At one point, Hibler untied the sides of the underwear and
massaged her legs right next to her vagina. Hibler looked at
her vagina, though he did not touch her vagina at that time.
J.H. testified that when Hibler told her to put the underwear
on, he had stated something about them making it
also testified about another incident which occurred in
Hibler's bedroom in the early morning. J.H. believed that
just she and Hibler were home and that A.H. and her brothers
were probably out of state. During this incident, J.H. was
asleep when Hibler began to massage her. When Hibler touched
her, he performed the swiping motion and also put his hand
over her vagina "like as if his hand were a bowl and he
were putting it over [her] vagina." J.H. testified that
Hibler "touched [her] vagina" and did so "more
towards the top of [her] vagina where there is this
thing." J.H. stated that during the previous episodes
when Hibler was swiping, he would touch the labia, but
"this time it was more towards the top of that"
area but that she did not know the name of the area. When it
was just the swiping motion, J.H. usually could feel just
Hibler's fingers, but "this time [she] felt his
whole hand." He "touched the top of [her]
vagina" with "maybe two or three fingers," and
"[h]is fingers were moving." This continued for
between 15 to 30 minutes. J.H. stated that her eyes were
closed but that she was not asleep. J.H. stated that this was
the last incident and that it occurred around December or
January. She knew that the incident did not happen in
testified that, initially, she did not tell anyone about this
last incident, because she was scared and did not know what
would happen to her and her family. However, after [302 Neb.
332] her friends realized something was wrong, she met them
at the school playground and told them in February. J.H.
asked her friends not to tell anybody, but the mother of one
of her friends learned of the alleged assaults and called the
school. The principal asked J.H. to come to the office and
asked her some questions. J.H. did not tell A.H. prior to
when the police became involved, because she stated, "I
wasn't sure if she would believe me or - I actually
wanted to wait until we got a new house, because then I
thought at the time, I thought it would be easier . . .
." She stated that she "tried to tell [A.H.] There
were times, you know, that I would say, let's go for a
ride, and I would want to tell her. Then I would chicken out
because it is not something that you can walk up to somebody
and say this happened."
Testimony of A.H.
testified that Hibler was born in November 1980. A.H. married
Hibler in 2002 and had three biological children with him.
A.H. testified that there were times she went with her son
for his treatments out of state between October 2015 and
March 2016. The day visits occurred about once a month and
often on Fridays. In addition, A.H. recalled that there were
two or three other times when she took her son out of state
for treatment and that they spent the night out of state. On
those occasions, Hibler stayed home with J.H. and their other
testified that J.H. "loved to give pedicures" and
that she liked to give massages and receive them. A.H.
testified it would not have been unusual for Hibler to
massage J.H. after running or stretching. A.H. stated that
before the police came to her workplace on March 31, 2016, to
tell her that J.H. had been interviewed, J.H. had not told
her anything regarding Hibler's actions.
testified that she spoke with Hibler in person on several
occasions about J.H.'s accusations. They also discussed
the trouble in their marriage. According to A.H., Hibler
wanted A.H. to convey to J.H. that Hibler believed J.H.'s
recollection [302 Neb. 333] was a misunderstanding of what
had occurred. According to A.H., Hibler initially admitted
touching J.H. on just one occasion. A.H. testified that
Hibler stated this event occurred when he took J.H. home one
night; she was asleep, and he did not want to carry J.H. up
the stairs, so he took J.H. to A.H. and Hibler's bed.
Hibler told A.H. that "he took some melatonin and rolled
over and thought [J.H. was A.H.] and he touched her."
Hibler stated that "by the time he realized what he had
done, the damage was done," but that it was only one
time and wondered if A.H. could forgive him and try to make
their marriage work.
testified that Hibler wanted A.H. to encourage J.H. to change
her story and tell the police that she took melatonin and had
some "really bad dreams." If this became J.H.'s
story, people would believe her, they could still buy the
house they wanted, they could have more children, and they
could try to start over. He urged A.H. to tell J.H. that
"it was just a little mistake and it didn't have to
testified regarding another conversation she had with Hibler
on April 26, 2016, when she and Hibler sat in a truck and
spoke for a "[c]ouple hours maybe." Hibler
initially stated that they could possibly record the
conversation, but then changed his mind, so A.H. was only
able to record about 7 seconds.
conversation, Hibler repeated to A.H. what he had said the
night before to the effect that he was sorry and ashamed,
that there was no good excuse for what he had done, and that
there was nothing that he could say or do that would excuse
what had happened. A.H. testified that at this point, Hibler
indicated there had been several episodes which started
around October 2014, when A.H. was at the hospital with their
son. A.H. testified that Hibler told her the first episode
occurred at his father's home, sometime in October 2014.
Hibler indicated that when J.H. had complained of pain in her
hip flexor, he had rubbed her thighs and her hip, and she
then fell asleep. Hibler described that there was a
"little gap" between J.H.'s underwear and skin
and that he put his fingers [302 Neb. 334] in the gap and
felt that "she was wet" and it was "arousing
for him." A.H. stated Hibler told her he then pulled his
hand back, resumed massaging her thigh and hip but then
repeatedly slipped his fingers under her underwear while J.H.
slept. A.H. testified that Hibler told her that at one point,
he gave J.H. a frontal massage, but that it was really
innocent, and that J.H. was having panic attacks or shortness
of breath and would get a really sharp pain on her side, in
response to which Hibler offered to rub her ribs. Hibler told
her that J.H. had taken off her shirt, but the pain was in
the area covered by her sports bra, so Hibler told her to
take the sports bra off, and he just rubbed her muscles
there, but that it was not sexual.
connection with another incident, Hibler told A.H. that he
and J.H. were home and J.H. asked to sleep in Hibler and
A.H.'s bed, which was not uncommon. J.H. indicated she
was scared and crying, so she slept in their room. A.H.
testified that Hibler stated that either he or J.H. asked for
a hug, and Hibler rolled J.H. on top of him and gave her a
hug. Hibler became aroused, so he put J.H. back on the bed.
A.H. testified that Hibler stated, "He thought something
was wrong with him and he did not know what to do about
it." A.H. stated Hibler told her he tried watching
pornography, including "fake daddy-daughter porn,"
to cure the problem, but that did not help and in fact made
things worse. Hibler stated that J.H. would sometimes ...