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State v. Sinkey

Supreme Court of Nebraska

June 7, 2019

State of Nebraska, appellee,
v.
Jason P. Sinkey, appellant.

         1. 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.

         2. 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 performance.

         3. Effectiveness of Counsel: Postconviction: Records: 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 postconviction proceeding.

         4. 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.

         [303 Neb. 346] 5. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. In order to avoid a procedural bar to a future postconviction proceeding, a claim of ineffective assistance of counsel must be presented 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.

          Appeal from the District Court for Douglas County: W. Russell Bowie III, Judge.

          Thomas C. Riley, Douglas County Public Defender, and Matthew J. Miller for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          HEAVICAN, C.J.

         INTRODUCTION

         Jason P. Sinkey was convicted of two counts of first degree sexual assault of a child and one count of possession of a firearm by a prohibited person. He appeals. We affirm.

         FACTUAL BACKGROUND

         Sinkey was charged on August 14, 2017, with two counts of first degree sexual assault of a child and one count of possession of a firearm by a prohibited person. The sexual assault charges arose from incidents occurring on July 10 and 11; the possession of a firearm by a prohibited person charge resulted from a firearm that was found in Sinkey's residence while members of law enforcement were executing a search warrant with respect to the sexual assault charges.

         [303 Neb. 347] Sinkey was romantically involved with the mother of the 8-year-old victim, Z.P. Z.P. testified that on July 10, 2017, when her mother was out of the home, she was lying on her mother's bed with Sinkey. Z.P. testified that Sinkey told her to take her pants and underwear off, then touched her "privates," by both "stacking] his tongue into [her] privates" and "lick[ing] his ...


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