State v. Rocha

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adjudication order concerning Moses and Elijah and remand
the cause with directions to dismiss the petition as to Moses
and Elijah. As conceded by the parties, we affirm the adjudica-
tion order of the juvenile court as to Sylissa and Justine.
	Affirmed in part, and in part reversed
	                      and remanded with directions.




                     State of Nebraska, appellee, v.
                     Eric O. Rocha, Sr., appellant.
                                   ___ N.W.2d ___

                         Filed July 19, 2013.   No. S-12-411.

 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 preju-
      dice to the defendant as part of the two-pronged test articulated in Strickland
      v. Washington, 

, 

, 

 (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 post-
      conviction 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, 

, 

, 

 (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 coun-
      sel’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, 

, 

, 

      (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
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        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, 

, 

,
        

 (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 

(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 present-
        ing evidence of the other charge.

  Appeal from the District Court for Scotts Bluff County: Leo
Dobrovolny, Judge. Reversed, sentences vacated, and cause
remanded for further proceedings.
  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.
       P er Curiam.
                      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 par-
ticular 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 justifi-
cation of use of force. For the reasons set forth, we reverse the
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judgments of conviction, vacate the sentences, and remand the
cause for further proceedings.

                            II. FACTS
   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 pho-
tograph 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 chil-
dren 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 bed-
room, 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
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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 col-
oring, 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
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“spit clean[ed]” them. After the teacher observed this behav-
ior, 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 teacher during the
2010-11 school year also testified to similar behavior.
   A licensed medical health practitioner and certified profes-
sional counselor, Jeanna Townsend, provided therapy to J.S.
5 times in February 2010 and approximately 14 times begin-
ning in June 2011. During her five sessions with J.S. in 2010,
J.S. did not answer questions and “shut down.” Townsend
testified that child victims of sexual abuse exhibit certain
behaviors. These include taking responsibility for many things
and feeling that they are bad or dirty. Townsend stated that
constant washing of body parts was consistent with sexual
abuse because the child tends to feel dirty. Excessive use of
the bathroom was consistent with sexual abuse. Townsend
testified to other activities that could be consistent with
sexual abuse.
   The children’s mother, Jessica, testified Rocha disciplined
the children by sending them to their room, giving them a
“time out,” or not letting them go outside to play. She did not
see any marks or bruises on the children that caused concern
that the children were improperly disciplined, and she did not
see Rocha hit A.R. or A.S. on the head with a wooden spoon
during mealtime. She did not hear any complaints from the
children that Rocha spanked or treated them inappropriately;
hit them with a belt, stick, or sandal; or choked them. But
Jessica admitted she found little bruises on the children after
Rocha had been alone with them and stated she had concerns
about how Rocha treated the children.
   Jessica did not expose J.S. to anything sexual, and Jessica
claimed J.S. did not tell her that she was sexually abused by
Rocha. She said J.S. had an imagination and made up stories.
Jessica said she did not see Rocha smoke marijuana in the
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home and did not find or smell marijuana in the home. She
denied that the children were deprived of food at dinner.
   Rocha denied the allegations of sexual assault and child
abuse. He denied taking J.S. to the living room or exposing
himself to her. He denied having done anything to J.S. for
sexual gratification.
   Rocha said he disciplined J.S., A.R., and A.S. by scolding
them, yelling at them, giving them “timeouts,” and sending
them to their room. He said he spanked them with an open
hand on the bottom but denied pinching, choking, hitting
them in the face, or striking them with anything other than
his hands. Rocha disciplined J.C. by “grounding” him. He
denied using marijuana in front of the children, offering it to
the children, or forcing them to consume it. He said that he
and Jessica made them meals and that the children were not
denied food.
   After the evidentiary portion of the trial, Rocha’s counsel
requested that a proposed jury instruction on the term “cruel
punishment” be given to the jury. The court denied the instruc-
tion. It determined the instruction was not necessary to accu-
rately state the law. During its rebuttal argument, the State
asserted that J.S. had been “absolutely honest in everything she
told [the jury] that happened.”
   The jury found Rocha guilty on all counts. He was sentenced
to prison for 40 years to life on the sexual assault conviction,
with credit for 264 days served, and 3 to 5 years on each child
abuse conviction. All sentences were to run consecutively.
He appealed. This court has a statutory obligation to hear all
appeals in cases in which the sentence of life imprisonment
is imposed.1
               III. ASSIGNMENTS OF ERROR
   Rocha assigns, summarized and restated, that (1) his trial
counsel was ineffective in failing to move to sever the sexual
assault charge from the child abuse charges, (2) his trial coun-
sel was ineffective in failing to request a limiting instruction
preventing the jury from considering the evidence of sexual

 1	
      See 

(1) (Reissue 2008).
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assault to convict him of the child abuse charges and vice
versa, (3) the trial court erred in failing to instruct the jury on
the lesser-included offense of negligent child abuse, and (4)
the trial court erred in failing to instruct the jury on the paren-
tal justification for use of force as set forth in 

 (Reissue 2008). Rocha raises a hearsay claim and
other ineffective assistance of counsel claims which are not
necessary for our analysis.

                 IV. STANDARD OF REVIEW
   [1-3] Appellate review of a claim of ineffective assistance
of counsel is a mixed question of law and fact.2 When review-
ing 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,4 an appellate court
reviews such legal determinations independently of the lower
court’s decision.5

                          IV. ANALYSIS
               1. Trial Counsel Was Ineffective in
                Failing to Move to Sever Sexual
                   Assault Charge From Child
                          Abuse Charges
   [4] Rocha first takes issue with his charges being joined in a
single trial. Rocha did not object to the alleged misjoinder and
did not move to sever one or several of the charges. Absent
plain error, we ordinarily will not address an issue that was
not raised in the trial court.6 Other courts have held that a trial
court may raise the issue of misjoinder and sever joint charges

 2	
      State v. Poe, 

, 

 (2012).
 3	
      

 4	
      Strickland v. Washington, 

, 

, 

      (1984).
 5	
      State v. Poe, supra note 2.
 6	
      See, e.g., State v. Simnick, 

, 

 (2010).
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or defendants on its own motion.7 But a court’s failure to exer-
cise that power is reviewable only for plain error.8 Rocha has
not argued plain error here.
   However, the alleged misjoinder and failure to sever may
also be addressed through the prism of ineffective assistance
of counsel, which is what Rocha has done here. He argues that
his counsel was ineffective in failing to object to the misjoinder
of his charges and in failing to move to sever the charges. He
argues that his counsel’s inaction resulted in a fundamentally
unfair trial and that his convictions must be reversed. We can
conceive of no strategic reason for his counsel’s failure to act,
and that failure undermines our confidence in the outcome of
the trial.

             (a) Addressing Ineffective Assistance of
                 Counsel Claim on Direct Appeal
   [5] Obviously, this is Rocha’s direct appeal, and 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.9 There is
a strong presumption that counsel acted reasonably, and an
appellate court will not second-guess reasonable strategic deci-
sions.10 But where the record on direct appeal rebuts that pre-
sumption, we may address the issue. Essentially, that presump-
tion is rebutted when counsel’s decision cannot be justified as a
part of any plausible trial strategy.11 As will be discussed more
fully below, such is the case here.

 7	
      See, e.g., U.S. v. McManus, 

 (4th Cir. 1994); United States
      v. De Diego, 

 (D.C. Cir. 1975); 5 Wayne R. LaFave et al.,
      Criminal Procedure § 17.3(a) (2007).
 8	
      See, e.g., U.S. v. Hart, 

 (3d Cir. 2001); U.S. v. Iiland, 

 (10th Cir. 2001); United States v. Palow, 

 (1st Cir.
      1985).
 9	
      See, e.g., State v. Watt, 

, ___ N.W.2d ___ (2013). See, also,
      State v. Faust, 

, 

 (2003), disapproved on
      other grounds, State v. McCulloch, 

, 

 (2007).
10	
      See, e.g., State v. Huston, 

, 

 (2013).
11	
      See 

.
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   The dissent, however, takes issue with our addressing
Rocha’s ineffective assistance claim on direct appeal and sug-
gests that we should never resolve such claims on direct
appeal. In support of its position, the dissent makes several
arguments, most of which find support in the U.S. Supreme
Court’s opinion in Massaro v. United States12; the dissent
quotes Massaro extensively. But in the final paragraph of
Massaro, the Court stated:
      We do not go this far. We do not hold that ineffective-
      assistance claims must be reserved for collateral review.
      There may be cases in which trial counsel’s ineffective-
      ness is so apparent from the record that appellate coun-
      sel will consider it advisable to raise the issue on direct
      appeal. There may be instances, too, when obvious defi-
      ciencies in representation will be addressed by an appel-
      late court sua sponte.13
Clearly, the U.S. Supreme Court disagreed with the dissent’s
categorical approach. We do too.
   The dissent also poses a litany of questions that, in its view,
might (on postconviction review) uncover a reasonable strategy
behind trial counsel’s failure to sever the charges. Putting aside
whether the dissent’s possible answers are actually probable
or convincing, this “what if” routine could be done for any
case on direct appeal. It is just another way for the dissent
to argue that ineffective assistance claims should always be
reserved for postconviction review. As noted above, we (and
the U.S. Supreme Court) reject that position. Here, ineffec-
tive assistance is plain from the record and may be addressed
on direct appeal. In fact, if appellate counsel is different from
trial counsel, claims of ineffective assistance of counsel must
be raised on direct appeal, or they are waived. The question
is whether the record is sufficient to address the claim. In this
case, the majority has determined the record is sufficient to
address the claim.

12	
      Massaro v. United States, 

, 

, 

 (2003).
13	
      

.
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   [6] As the analysis will show, the charges were improperly
joined together, and considering the obvious risks to Rocha of
proceeding with a joint trial on the charges, we can conceive
of no justifiable reason for counsel’s failure to object to the
misjoinder and failure to move to sever. “[W]here no plau-
sible explanation for an attorney’s actions exists, to require the
defendant to file a postconviction action can be only a waste of
judicial time.”14
   The State and the dissent argue that a reasonable explanation
could exist and that we should wait to address this claim until
it is on postconviction review. As stated above, we disagree.
But as an example of such an alleged explanation, the State
claimed at oral argument that perhaps Rocha’s counsel did not
object to the joinder of the charges and move to sever because
Rocha himself requested a single trial. We find this hypotheti-
cal unpersuasive because, regardless, the decision whether to
object to the joinder and move to sever was a tactical decision
for trial counsel to make rather than Rocha.15

               (b) Merits of Rocha’s Ineffective
                 Assistance of Counsel Claim
   [7,8] To prevail on a claim of ineffective assistance of coun-
sel under Strickland,16 the defendant must show that counsel’s
performance was deficient and that this deficient performance
actually prejudiced his or her defense.17 To show deficient per-
formance, 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.18

14	
      

, 

, 

. See, also, Hills
      v. State, 

 (Fla. App. 2012); People v. Karraker, 

, 

, 

 (1994).
15	
      See, e.g., State v. Fleury, 

, 

 (2012); Com.
      v. Hernandez, 63 Mass. App. 426, 

 (2005); Com. v. Clarke,
      44 Mass. App. 502, 

 (1998). See, also, Neb. Ct. R. of Prof.
      Cond. § 3-501.2.
16	
      

.
17	
      

.
18	
      

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   [9,10] The petitioner must demonstrate a reasonable prob-
ability that but for his or her counsel’s deficient performance,
the result of the proceeding would have been different.19 A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.20 In addressing the “prejudice”
component of the Strickland test, we focus on whether a trial
counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair.21
   [11] Here, whether counsel’s performance was deficient
initially depends on whether the charges were properly joined
under 

(1) (Reissue 2008). Section
29-2002 states in relevant part:
          (1) Two or more offenses may be charged in the same
      . . . information . . . in a separate count for each offense
      if the offenses charged . . . 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.
The language of § 29-2002(1) is similar to the language found
in Fed. R. Crim. P. 8(a). Offenses are properly joinable under
§ 29-2002(1) 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 com-
mon scheme or plan.22
   At the outset, the exact charges in this case should be made
clear. The State charged Rocha with first degree sexual assault
of a child (as to J.S. only) under 

(Cum. Supp. 2012). The State also charged Rocha with four
counts of child abuse (as to all four children, including J.S.)
under 

 (Reissue 2008). Rocha argues
now on appeal that his trial counsel was ineffective for failing
to object to the misjoinder of these charges and for failing to

19	
      State v. Robinson, 

, 

 (2013).
20	
      

21	
      See, e.g., 

; Peralta v. U.S., 

 (1st Cir.
      2010); Nguyen v. U.S., 

 (11th Cir. 2012); Henington v.
      State, 

, ___ S.W.3d ___ (2012).
22	
      See State v. Hilding, 

, 

 (2009).
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move to sever these charges. Specifically, Rocha argues that
the sexual assault charge should not have been tried with the
four child abuse charges. We agree.
   First, we conclude that the sexual assault charge and the
child abuse charges were not of the same or similar character.
For one thing, they are different crimes. Most notably, how-
ever, sexual assault, on its face, is sexual in nature, whereas
child abuse is not. The sexual assault charge pertained only
to J.S. and took place over a different period of time than
the child abuse charges. As such, the sexual assault charge
and the child abuse charges were not of the same or simi-
lar character.
   [12,13] Second, the sexual assault charge was not based on
the same act or transaction as the child abuse charges. 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.23 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.24 The
fact that multiple crimes were allegedly committed about the
same time or overlapped is not enough.25
   Here, the alleged sexual assaults occurred separately and
apart from the alleged child abuse. As noted above, J.S. was
allegedly assaulted when the other children were not present.
The alleged incidents occurred in the living room, Jessica’s
bedroom, the bathrooms, or the car. J.S. was the only child
who was sexually assaulted and the only child who testified to
being sexually assaulted. There was no evidence that the other
children were sexually assaulted.
   In contrast, many of the alleged incidents of child abuse
occurred in the presence of more than one child and related
to the striking of the children with a slipper, belt, or Rocha’s

23	
      State v. Clark, 

, 

 (1988) (quoting State v.
      Brehmer, 

, 

 (1982)).
24	
      See, Clark, supra note 23; 

; State v. Dandridge, 

, 

 (1993).
25	
      See 

.
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hand. Rocha allegedly choked two of the children with his
hands. Evidence of the child abuse did not require evidence of
the sexual assaults, and vice versa. The charges were not part
of the same act or transaction.
   Finally, the sexual assault charge and the child abuse charges
were not connected together or parts of a common scheme or
plan. The State argues otherwise, on the basis that each of
the alleged crimes was part of a common scheme or plan to
exercise control over the children. We find this unpersua-
sive—Rocha already controlled the children by virtue of being
a stepparent. And the record does not demonstrate any other
inferable common scheme or plan.
   Furthermore, these charges are unlike charges in cases
that we have found sufficiently related under the “connected
together” or “parts of a common scheme or plan” provi-
sion of § 29-2002(1). For example, in State v. Hilding,26 we
allowed the joinder of sexual assault charges and a stalking
charge because the telephone calls which formed the stalk-
ing charge included, as a “frequent topic,” the alleged sexual
assaults. And the defendant “admitted that the threats he made
in the calls were a response to [the victim’s] allegations that
he had sexually assaulted her.”27 Such evidence would have
been admissible in separate trials of the crimes and formed
a series of connected transactions.28 There is no such nexus
between the alleged sexual assault and the alleged child abuse
in Rocha’s case.
   In sum, the sexual assault charge was misjoined with the
child abuse charges. Under § 29-2002(1), the charges were not
of the same or similar character, part of the same act or trans-
action, or connected together or parts of a common scheme or
plan. As such, the charges were misjoined, and had a proper
objection been raised by trial counsel, the court would have
been required to order separate trials.29 That being the case,

26	
      

, 

, 

.
27	
      

28	
      See 

.
29	
      See, e.g., U.S. v. Chavis, 

 (6th Cir. 2002); 5 LaFave et al.,
      supra note 7, § 17.3(b).
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and because of the obvious risks to Rocha of proceeding with
a joint trial on the charges, we can conceive of no reasonable
strategic reason for counsel’s failure to object and move to
sever the charges. This was deficient performance.
   The question remains whether counsel’s deficient perform­
ance actually prejudiced Rocha. In answering that question,
and as stated previously, we focus on whether a trial counsel’s
deficient performance rendered the result of the trial unreliable
or the proceeding fundamentally unfair. To show prejudice,
the defendant must demonstrate a reasonable probability that
but for his or her counsel’s deficient performance, the result
of the proceeding would have been different.30 A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.31
   Because the charges were misjoined under § 29-2002(1),
evidence of both the alleged sexual assaults and the child
abuse of the other children was admitted in the joint trial. But
had the charges been tried separately, evidence of the child
abuse regarding the other children would have been inadmis-
sible in a trial on the sexual assault charge, and vice versa,
under 

(2) (Cum. Supp. 2012), which
provides:
      Evidence of other crimes, wrongs, or acts is not admis-
      sible to prove the character of a person in order to show
      that he or she acted in conformity therewith. It may, how-
      ever, be admissible for other purposes, such as proof of
      motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident.
The reason for the rule is that such evidence, despite its rel-
evance, creates the risk of a decision by the trier of fact on an
improper basis.32 That risk is a substantial one.33
   We do not agree with the State’s claim that § 27-404(2)
would be inapplicable in separate trials, because the evidence

30	
      Robinson, supra note 19.
31	
      Id.
32	
      See State v. Glazebrook, 

, 

 (2011).
33	
      See 

.
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270	286 NEBRASKA REPORTS



of the child abuse charges and of the sexual assault charge
was inextricably intertwined.34 Here, there was no evidence
that Rocha sexually assaulted the boys. The boys were not
present when the alleged sexual assaults occurred. The State
did not need to present evidence that Rocha abused the chil-
dren to tell the entire story of sexual assault, and it did not
need to present evidence of sexual assault to tell the entire
story of child abuse.
   Trying the sexual assault and child abuse charges together
also essentially prohibited Rocha from moving to exclude
prejudicial evidence based on 

(Reissue 2008), which states: “Although relevant, evidence
may be excluded if its probative value is substantially out-
weighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.” In a separate trial for child abuse, any probative
value of the sexual assault evidence would be outweighed
by unfair prejudice; the jury might convict Rocha of child
abuse because he had sexually assaulted J.S. Similarly, in a
separate trial for sexual assault, any probative value of child
abuse evidence would be outweighed by unfair prejudice; the
jury might convict Rocha of sexual assault because he abused
the children.
   The risk of undue prejudice, considering the type of evi-
dence at issue, was high; evidence of sexual assault, by its
nature, was highly volatile and had the potential to fan the
jury’s emotions. That risk was exacerbated by the fact that
the court did not specifically instruct the jury on the impor-
tance of keeping the charges, and evidence related to those
charges, separate during its deliberations. For these reasons,
our confidence in the outcome of this case is undermined and
we conclude that Rocha was prejudiced by his trial counsel’s
deficient performance.



34	
      See State v. Freemont, 

, 

 (2012).
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	                               STATE v. ROCHA	271
	                              Cite as 

                     2. Failure to R equest
                      Limiting Instructions
   Rocha claims trial counsel was ineffective because he failed
to request a limiting instruction that the jury could not consider
the evidence of sexual assault to prove the charges of child
abuse and vice versa.
   At oral argument, the State asserted hypothetically that an
evidentiary hearing was required to examine counsel’s strategy,
because Rocha may have insisted on testifying, but in only one
trial. Assuming for purposes of the State’s assertion that an
evidentiary hearing was required, the question remains whether
the record is sufficient to address counsel’s failure to request
limiting instructions. We conclude that it is.
   In reviewing the admissibility of other crimes evidence
under § 27-404(2), an appellate court considers (1) whether the
evidence was relevant for some purpose other than to prove the
character of a person to show that he or she acted in conform­
ity therewith, (2) whether the probative value of the evidence
is substantially outweighed by its potential for unfair preju-
dice, and (3) whether the trial court, if requested, instructed the
jury to consider the evidence only for the limited purpose for
which it was admitted.35
   The charges were not of the same or similar character, were
not based on the same act, and were not part of a common
scheme or plan. The evidence of Rocha’s sexual assaults was
not relevant to the charges of child abuse and vice versa.
   Evidence that Rocha made J.S. perform oral sex and that
Rocha put his “private area in [her] bottom” would not be
relevant for any proper purpose under § 27-404 as to the child
abuse charges. Nor would evidence that Rocha spanked the
children or allegedly physically abused the children be relevant
to the sexual assault charges. The admission of this evidence
without limiting instructions was unfairly prejudicial.
   Once the charges were joined, an attorney with ordinary
training and skill in criminal law would have requested these
limiting instructions. We can conceive of no reasonable


35	
      Glazebrook, supra note 32.
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272	286 NEBRASKA REPORTS



explanation why, if Rocha insisted on trying the charges in one
trial, counsel would not ask for the limiting instructions.
   For the reasons stated above, we conclude that Rocha
received ineffective assistance of counsel. We therefore reverse
the judgments of conviction.
                   3. Sufficiency of Evidence
   Because we reverse the judgments of conviction, we exam-
ine whether the evidence admitted by the trial court was suf-
ficient to sustain Rocha’s convictions. The Double Jeopardy
Clause does not forbid a retrial so long as the sum of all the
evidence admitted by a trial court, whether erroneously or not,
would have been sufficient to sustain a guilty verdict.36 The
evidence was sufficient to sustain the guilty verdicts.
                      VI. CONCLUSION
   For the reasons set forth herein, we reverse the judgments
of conviction, vacate the sentences, and remand the cause for
further proceedings.
	R eversed, sentences vacated, and cause
	                     remanded for further proceedings.
   McCormack, J., participating on briefs.
   Heavican, C.J., not participating.

36	
      See State v. Sorensen, 

, 

 (2012).

   Stephan, J., dissenting.
   This is the second time that this court has overturned a
criminal conviction on the ground of ineffective assistance of
counsel without a complete factual record to support its con-
clusion. As in the first instance,1 I respectfully dissent.
   As the majority acknowledges in its statement of the stan-
dard of review, a claim of ineffective assistance of counsel
presents a mixed question of law and fact, requiring that we
review factual findings of the lower court for clear error, but
reach an independent determination of whether ineffective

 1	
      State v. Faust, 

, 

 (2003) (Stephan, J.,
      dissenting), disapproved on other grounds, State v. McCulloch, 

, 

 (2007).
                         Nebraska Advance Sheets
	                               STATE v. ROCHA	273
	                              Cite as 

assistance of counsel under the Strickland v. Washington2 stan-
dard has been proved.3 Here, we have no “factual findings of
the lower court” to review on the issue of defense counsel’s
performance, because that issue was never tried. The issue
before the district court was Rocha’s guilt on the charged
offenses, not counsel’s performance in conducting Rocha’s
defense. That is precisely why we have held in countless cases
that the record on direct appeal is insufficient for assessing
claims of ineffective assist­ nce of counsel.4 The majority does
                            a
not explain how it can review a mixed question of law and fact
when the requisite factual findings have never been made by
a trial court.
   The reasons why an appellate court usually cannot and
should not consider ineffective assistance of counsel claims
on direct appeal from a criminal conviction were explained
by the U.S. Supreme Court in Massaro v. United States.5

 2	
      Strickland v. Washington, 

, 

, 

      (1984).
 3	
      State v. Poe, 

, 

 (2012).
 4	
      See, e.g., State v. Watt, 

, ___ N.W.2d ___ (2013); State
      v. McClain, 

, 

 (2013); State v. Ramirez,
      

, 

 (2013); State v. Huston, 

,
      

 (2013); State v. Freemont, 

, 

 (2012); State v. Nolan, 

, 

 (2012), cert.
      denied ___ U.S. ___, 

, 

; State v. Pullens,
      

, 

 (2011); State v. Seberger, 

,
      

 (2010); State v. Sellers, 

, 

      (2010); State v. Robinson, 

, 

 (2009); State
      v. Davis, 

, 

 (2008); State v. Jones, 

, 

 (2007); State v. Davlin, 

, 

 (2006); State v. Moyer, 

, 

 (2006); State
      v. Molina, 

, 

 (2006); State v. Gales, 

, 

 (2005); State v. King, 

, 

 (2005); State v. Brown, 

, 

 (2004); State v.
      Cook, 

, 

 (2003); State v. Leibhart, 

, 

 (2003); State v. Kelley, 

, 

 (2003); State v. Long, 

, 

 (2002); State v.
      McLemore, 

, 

 (2001); State v. Hittle, 

, 

 (1999).
 5	
      Massaro v. United States, 

, 

, 

 (2003).
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274	286 NEBRASKA REPORTS



Although the Court acknowledged the possibility that ineffec-
tive assist­ nce of counsel could be evident from a trial record
            a
alone, it observed that such cases would be few. The Court’s
reasons clearly apply to Rocha’s direct appeal and explain
why this court should decline to address his claims of ineffec-
tive assistance of counsel. The Court noted that a trial record
reviewed on direct appeal is “not developed . . . for the object
of litigating or preserving the [ineffective assistance of coun-
sel] claim and thus often incomplete or inadequate for this
purpose.”6 The Court further reasoned that because evidence at
a criminal trial is “devoted to issues of guilt or innocence, . . .
the resulting record in many cases will not disclose the facts
necessary to decide either prong of the Strickland analysis.”7
For example, the Court noted that
      [i]f the alleged error is one of commission, the record
      may reflect the action taken by counsel but not the
      reasons for it. The appellate court may have no way
      of knowing whether a seemingly unusual or misguided
      action by counsel had a sound strategic motive or was
      taken because the counsel’s alternatives were even
      worse.8
And the Court reasoned that “[t]he trial record may contain
no evidence of alleged errors of omission, much less the
reasons underlying them.”9 Because of the inadequacy of the
trial record as a basis for adjudicating ineffective assistance
of counsel claims, the Court concluded that such claims ordi-
narily should be litigated in the first instance in the district
court, “the forum best suited to developing the facts neces-
sary to determining the adequacy of representation during an
entire trial.”10
   Although this court generally requires ineffective assistance
of counsel claims to be raised on direct appeal in order to

 6	
      

.
 7	
      

 8	
      

 9	
      

10	
      

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	                              Cite as 

be preserved for postconviction review,11 we have steadfastly
followed the principle that the fact that such a claim may be
raised on direct appeal does not mean that it can be resolved.12
The determining factor is whether the record is sufficient to
adequately review the question.13 And with the exception of
State v. Faust,14 when the ineffective assistance of counsel
at issue could involve trial strategy, we have always found a
trial record reviewed on direct appeal to be insufficient for
adequate review because it does not tell us the reasons defense
counsel tried the case in a particular manner.15 We have pru-
dently followed this course even while expressing skepticism
as to whether counsel could have been pursuing a reasonable
trial strategy. For example, in State v. Sidzyik,16 the defendant
claimed on direct appeal that his trial counsel was ineffective
in not objecting when the prosecutor made statements at sen-
tencing after agreeing as a part of the plea agreement to stand
silent. We concluded that there had been a material breach
of the plea agreement and noted that “‘it would be a rare
circumstance when a lawyer with ordinary training and skill
in the area of criminal law would not inform the court of the
breach.’”17 But we concluded that the record was insufficient
to review the ineffective assistance of counsel claim because it
was “not clear from the record . . . whether [the defendant’s]
counsel did not object to the breach of the plea agreement
based on trial strategy.”18
   But in Faust and now in this case, the majority reaches and
resolves the ineffective assistance of counsel claim on direct

11	
      See, State v. Young, 

, 

 (2010); State v.
      Marshall, 

, 

 (2005).
12	
      E.g., State v. 

; State v. Sidzyik, 

, 

 (2011).
13	
      

14	
      State v. 

.
15	
      See, e.g., cases cited supra note 4.
16	
      State v. Sidzyik, supra note 12.
17	
      Id. at 314, 795 N.W.2d at 288-89 (quoting State v. Gonzalez-Faguaga, 

, 

 (2003)).
18	
      Id. at 314, 795 N.W.2d at 289.
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276	286 NEBRASKA REPORTS



appeal because it “can conceive of no reasonable strategic
reason” for the challenged performance of defense counsel. I
believe that this “we know it when we see it” approach to the
question of whether counsel had no reasonable trial strategy
is unsound.
   Here, we simply do not have the information necessary to
make a principled determination of whether counsel acted,
or did not act, pursuant to some reasonable trial strategy.
There is a strong presumption that trial counsel acted reason-
ably.19 Trial counsel is afforded due deference to formulate
trial strategy and tactics, and we are not to second-guess
trial counsel’s reasonable strategic decisions when review-
ing claims of ineffective assistance of counsel.20 And we are
required to assess trial counsel’s performance from the coun-
sel’s perspective when the counsel provided the assistance,21
not in hindsight. The fact that a calculated trial tactic or
strategy fails to work out as planned will not establish that
counsel was ineffective.22
   These sound principles recognize that no one knows more
about a case than the lawyer who tries it. Before trial, a crimi-
nal defense lawyer conducts confidential communications with
his or her client, interviews witnesses, and reviews police
reports and other information compiled by the State. It is from
this knowledge base that the lawyer formulates trial strategy
by application of professional judgment to particular facts and
circumstances. The trial record tells us how the lawyer elected
to try the case, but it ordinarily does not disclose counsel’s
reasons for taking, or not taking, a particular action. Any expe-
rienced trial lawyer knows that there can be sound strategic
reasons for not filing a motion, for not making an objection,
or for not requesting a limiting instruction, even if there are
grounds to do so. It is impossible to determine whether counsel
acted or refrained from acting pursuant to a reasonable trial

19	
      State v. 

; State v. Huston, supra note 4.
20	
      See, e.g., State v. Huston, supra note 4; State v. Edwards, 

,
      

 (2012).
21	
      State v. Edwards, supra note 20.
22	
      State v. Iromuanya, 

, 

 (2011).
                       Nebraska Advance Sheets
	                              STATE v. ROCHA	277
	                             Cite as 

strategy without knowing what counsel knew at the time of
the challenged conduct, and why he or she tried the case in a
particular manner. We simply cannot tell from this record why
Rocha’s counsel did not file a motion to sever the charges or
request a limiting instruction. And we should not guess or jump
to the conclusion that we can “conceive of no strategic reason”
for a particular action taken by counsel during the course of a
criminal trial.
   The majority’s willingness to conclude that Rocha’s coun-
sel could not have been acting pursuant to a reasonable trial
strategy is at odds with the reasoning of State v. Poe,23 decided
just last year. In Poe, we reversed an order denying postcon-
viction relief without an evidentiary hearing because the files
and records of the case, which are essentially the trial record,
contained no explanation for trial counsel’s failure to cross-
examine a key prosecution witness with a prior inconsistent
statement in which the witness identified someone other than
the defendant as the perpetrator of the crime. We reasoned
that “[u]nder these circumstances, trial counsel’s strategy is
a matter of conjecture.”24 In this case, as in Poe, the record
does not disclose counsel’s strategy in not taking a particular
action at trial. Further factfinding was required in Poe in order
to address that issue, and it is likewise required here. In my
view, the majority’s bold statement that it can “conceive of no
strategic reason” for Rocha’s counsel not to move to sever the
charges or to request a limiting instruction is pure “conjecture,”
i.e., “the formation or expression of an opinion without suffi-
cient evidence for proof.”25
   In addition to reaching a result without adequate factual
support, the majority’s reasoning prevents the relevant facts
from ever being determined. Had this court followed our nor-
mal procedure and declined to reach the ineffective assistance
claim on direct appeal, Rocha could have asserted the same
claim in a motion for postconviction relief. Because the files

23	
      State v. Poe, supra note 3.
24	
      Id. at 774, 822 N.W.2d at 849.
25	
      Webster’s Encyclopedic Unabridged Dictionary of the English Language
      310 (1989).
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278	286 NEBRASKA REPORTS



and records of the case now before us on direct appeal do not
affirmatively show that his claim is without merit, he would be
entitled to an evidentiary hearing26 at which his trial counsel
would likely be a witness.
   And what if, at a postconviction evidentiary hearing, trial
counsel testified that Rocha had always insisted that he was
innocent of all charges and that the children fabricated their
allegations because he was strict with them and was not their
biological father? What if counsel testified that after con-
sultation, Rocha insisted on testifying in his own defense,
and counsel concluded that under Neb. Ct. R. of Prof. Cond.
§ 3-501.2(a), he was ethically required to abide by that deci-
sion? What if counsel testified that he determined that the
mother of the children would testify in Rocha’s defense, spe-
cifically that the children had never reported physical or sexual
abuse to her and that the alleged sexual assault victim “had an
imagination and made up stories”? What if counsel testified
that given the absence of any physical evidence of sexual or
physical abuse and Rocha’s insistence on testifying in his own
defense, counsel concluded that the best strategy for obtaining
acquittal on all charges was to have a single trial in which he
would seek to create reasonable doubt as to the credibility of
the complaining witnesses, rather than moving to sever the
charges and thus giving the State two opportunities to cross-
examine Rocha and obtain felony convictions? What if counsel
testified that he reviewed the pros and cons of severance with
his client and that Rocha agreed with counsel’s assessment
that Rocha stood a better chance of acquittal on all charges in
a single trial? What if counsel testified that he did not request
a limiting instruction requiring the jury to consider the chil-
dren’s testimony only for specific purposes because counsel’s
strategy was to characterize the children’s testimony as totally
lacking in credibility and therefore unworthy of the jury’s con-
sideration on any charge? I think it is possible, if not probable,
that a district court hearing this testimony would conclude that
this strategy was reasonable from defense counsel’s perspec-
tive at trial and was therefore not ineffective assistance of

26	
      See 

 (Cum. Supp. 2012).
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	                               STATE v. ROCHA	279
	                              Cite as 

counsel. In such a scenario, Rocha’s otherwise valid criminal
convictions would not be overturned.
   But because of the majority’s preemptive adjudication of
the ineffective assistance claim on the trial record alone, we
will never know the reasons defense counsel did not move to
sever the charges or request a limiting instruction. I submit
that the majority cannot “conceive” of a strategic explanation
for counsel’s performance at trial because it does not know all
the facts and has eliminated the procedural means of acquiring
them. The majority’s approach violates a fundamental principle
of appellate review in criminal cases—a principle codified for
over 90 years—that no judgment in a criminal case may be set
aside if the court considers that no substantial miscarriage of
justice has actually occurred.27 Without having the facts in the
record, an appellate court cannot assess whether a miscarriage
of justice has occurred. Despite the absence of necessary facts
and the existence of a procedure for ascertaining them, the
majority nonetheless sets these judgments of conviction aside
in contravention of the statutory mandate.
   Finally, I cannot accept the majority’s conclusion that this is
a case in which requiring “the defendant to file a postconvic-
tion action can be only a waste of judicial time.”28 In my view,
it is never a waste of judicial time to follow standard proce-
dures designed to ensure that a court has all relevant facts nec-
essary to decide whether a criminal conviction should stand.
And I believe that it is the majority’s approach which could,
in this case or another, lead to what would truly be a waste of
judicial time: an unnecessary retrial.
   Finding no merit in any of Rocha’s other assignments of
error, I would affirm his convictions and sentences without
reaching his ineffective assistance of counsel claim, thereby
permitting him to pursue his postconviction remedy on
that issue.
   Cassel, J., joins in this dissent.

27	
      See 

 (Reissue 2008).
28	
      State v. 

, 265 Neb. at 876, 

.