            Decisions     of the    Nebraska Court of Appeals
	                                  STATE v. KELLY	871
	                              Cite as 20 Neb. App. 871

               State    of Nebraska, appellee, v. William
                          Joseph K elly, appellant.
                                   ___ N.W.2d ___

                        Filed June 25, 2013.    No. A-12-218.

 1.	 Sexual Assault: Words and Phrases. A person commits first degree sexual
      assault if he or she subjects another person to sexual penetration without the
      consent of the victim.
  2.	 ____: ____. Sexual penetration includes sexual intercourse in its ordinary mean-
      ing, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of
      any part of the actor’s or victim’s body or any object manipulated by the actor
      into the genital or anal openings of the victim’s body which can be reasonably
      construed as being for nonmedical or nonhealth purposes.
 3.	 Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate
      court does not resolve conflicts in the evidence, pass on the credibility of wit-
      nesses, or reweigh the evidence.
 4.	 Convictions: Evidence: Appeal and Error. A conviction will be affirmed, in
      the absence of prejudicial error, if the properly admitted evidence, viewed and
      construed most favorably to the State, is sufficient to support the conviction.
 5.	 Verdicts: Appeal and Error. Only where evidence lacks sufficient probative
      value as a matter of law may an appellate court set aside a guilty verdict as
      unsupported by evidence beyond a reasonable doubt.
 6.	 Criminal Law: Juries: Appeal and Error. An appellate court’s standard of
      review for criminal cases requires substantial deference to the factual findings
      made by the jury.
 7.	 Sexual Assault: Parent and Child. A person commits incest if he or she know-
      ingly engages in sexual penetration with any person who falls within the degrees
      of consanguinity set forth in Neb. Rev. Stat. § 28-702 (Reissue 2008).
  8.	 ____: ____. Neb. Rev. Stat. § 28-702 (Reissue 2008) includes a parent engaging
      in sexual penetration with his or her child.
 9.	 Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
      admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
      discretion is involved only when the rules make discretion a factor in determin-
      ing admissibility.
10.	 Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
      commit the evidentiary question at issue to the discretion of the trial court, an
      appellate court reviews the admissibility of evidence for an abuse of discretion.
11.	 Rules of Evidence: Other Acts. Before admitting evidence of the accused’s
      commission of another offense or offenses of sexual assault under Neb. Evid. R.
      414, Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012), the court shall conduct a hear-
      ing outside the presence of any jury. At the hearing, the rules of evidence shall
      apply and the court shall apply a balancing under Neb. Evid. R. 403, Neb. Rev.
      Stat. § 27-403 (Reissue 2008), and admit the evidence unless the risk of preju-
      dice substantially outweighs the probative value of the evidence. In assessing
      the balancing, the court may consider any relevant factor such as (1) the prob-
      ability that the other offense occurred, (2) the proximity in time and intervening
   Decisions of the Nebraska Court of Appeals
872	20 NEBRASKA APPELLATE REPORTS


       circumstances of the other offenses, and (3) the similarity of the other acts to the
       crime charged.
12.	   ____: ____. Evidence of other crimes, wrongs, or acts is not admissible to prove
       the character of a person in order to show that he or she acted in conformity
       therewith. It may, however, be admissible for other purposes, such as proof of
       motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident.
13.	   ____: ____. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp.
       2012), does not apply to evidence of a defendant’s other crimes or bad acts if the
       evidence is inextricably intertwined with the charged crime. This rule includes
       evidence that forms part of the factual setting of the crime, or evidence that is so
       blended or connected to the charged crime that proof of the charged crime will
       necessarily require proof of the other crimes or bad acts, or if the other crimes
       or bad acts are necessary for the prosecution to present a coherent picture of the
       charged crime.
14.	   Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
       of counsel, the defendant must show that counsel’s performance was deficient
       and that this deficient performance actually prejudiced his or her defense.
15.	   Effectiveness of Counsel: Waiver: Appeal and Error. Although Nebraska law
       requires that issues of ineffective assistance of counsel be raised on direct appeal
       or be waived, the fact that they are raised does not necessarily mean they can
       be resolved.
16.	   Effectiveness of Counsel: Records: Appeal and Error. In most instances,
       claims of ineffective assistance of counsel cannot be resolved on direct appeal,
       because the trial record that an appellate court reviews is devoted to issues of
       guilt or innocence and usually will not disclose the facts necessary to decide
       whether counsel’s performance was deficient or whether such deficient perform­
       ance prejudiced the defense.
17.	   ____: ____: ____. A claim of ineffective assistance of counsel need not be dis-
       missed merely because it is made on direct appeal. The determining factor is
       whether the record is sufficient to adequately review the question.

  Appeal from the District Court for Cedar County: Paul J.
Vaughan, Judge. Affirmed.
   Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
  Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
   Sievers, Pirtle, and Riedmann, Judges.
   Riedmann, Judge.
                   I. INTRODUCTION
  William Joseph Kelly appeals from the order of the district
court for Cedar County convicting him of two counts of first
         Decisions   of the  Nebraska Court of Appeals
	                           STATE v. KELLY	873
	                       Cite as 20 Neb. App. 871

degree sexual assault and two counts of incest. Kelly argues
that the evidence was insufficient to support the convictions,
that the district court admitted unfairly prejudicial evidence
of prior alleged sexual assaults, and that his trial counsel was
ineffective. Finding no merit to Kelly’s arguments, we affirm.

                         II. BACKGROUND
    Kelly was charged by second amended information with two
counts of first degree sexual assault and two counts of incest
against his daughter, K.K. The first count of sexual assault and
first count of incest were alleged to have occurred “[b]etween
on or about September 1, 2009 and on or about April 30, 2010
. . . .” The second count of sexual assault and second count of
incest were alleged to have occurred “[b]etween on or about
March 1, 2010 and on or about April 30, 2010 . . . at [Kelly’s]
Cedar County residence just before K.K.’s decision to move
out of [Kelly’s] Cedar County residence . . . .” A jury found
Kelly guilty of all four counts.
    Prior to trial, the State sought permission to elicit testimony
from K.K. that Kelly had been sexually assaulting her over
the entire 10-year period leading up to the charged offenses.
Kelly’s counsel objected, arguing that the evidence of other
offenses was more prejudicial than probative, and asked that
the court conduct a hearing to determine admissibility under
Neb. Evid. R. 414, Neb. Rev. Stat. § 27-414 (Cum. Supp.
2012). The district court determined that the history of the
relationship between Kelly and K.K. was intertwined with
K.K.’s ability to relate what happened on the dates of the
charged offenses and, thus, that the prior sexual assaults were
not “other bad acts, per se, that would require a 414 type
of hearing.”
    K.K. is the daughter of Kelly and his ex-wife, Jodi K. Kelly
and Jodi divorced when K.K. was 4 years old. Kelly is cur-
rently married to Tiffany K., and they have three children
together. After Kelly and Jodi’s divorce, K.K. initially lived
with Jodi in and near Sioux City, Iowa, but when she was
13, she moved in with Kelly and his family in Sioux City. In
September 2009, when K.K. was 15, she moved with Kelly and
his family to a farmhouse in Cedar County.
   Decisions of the Nebraska Court of Appeals
874	20 NEBRASKA APPELLATE REPORTS



   K.K. testified that Kelly “had sex with [her] and other
forms of it.” She remembered that the first time anything sex-
ual happened with Kelly, she was 6 or 7 years old and Kelly
made her give him a “hand job.” K.K. remembered that the
first time she gave Kelly oral sex was when she was 10 or 11
years old and he ejaculated in her mouth. The first time Kelly
had sexual intercourse with K.K., she was approximately 13
years old; K.K. testified, “It hurt really bad. A pain I never
felt before.” K.K. also testified that Kelly had anal sex with
her twice.
   K.K. testified that these sexual assaults occurred at the fam-
ily’s residences, in Kelly’s pickup truck, in Kelly’s work truck,
and once in a hotel. The frequency of incidents varied over the
years, but K.K. testified that she never gave her consent. K.K.
testified that she asked Kelly to stop, but that Kelly said he had
a problem and could not stop.
   K.K. lived in the farmhouse with Kelly and his family from
September 2009 until she moved out on March 22, 2010. She
testified that Kelly had sex with her at the farmhouse on the
futon where she slept on approximately 5 to 10 occasions. He
also had sex with her in his bedroom five or six times.
   K.K. remembered one particular occasion that Kelly had
sex with her. The family was having a party at K.K.’s great-­
grandparents’ house that day. She remembered it was on a
weekend but could not remember the exact day. K.K. testified
that she and her grandmother went to the party early in the
morning, but that K.K. left the party sometime in the afternoon
to pick Kelly up from work at a truckstop and took him back
to the farmhouse so he could take a shower. Before taking a
shower, Kelly took K.K. into his bedroom, performed oral sex
on her, and then had sexual intercourse with her. K.K. then
took Kelly back to the family party.
   K.K. recalled another specific incident that happened at the
farmhouse. Early one morning in about the middle of the week
prior to March 22, 2010, Kelly woke K.K. up and asked for
oral sex. She performed oral sex on him, and he ejaculated in
her mouth, but he was more aggressive than usual and seemed
upset. Afterward, K.K. felt sick and vomited in her closet. K.K.
        Decisions   of the  Nebraska Court of Appeals
	                          STATE v. KELLY	875
	                      Cite as 20 Neb. App. 871

moved out of Kelly’s house that weekend and moved back in
with Jodi.
   K.K. testified that Kelly asked her not to tell anyone about
the sexual assaults because he would “get in big trouble.”
However, in the fall of 2010, K.K. told her friend what Kelly
was doing to her. K.K.’s friend testified that K.K. told her,
“[M]y dad has been raping me.” According to K.K.’s friend,
K.K. said Kelly had sex with her in her bedroom or anywhere
in their house.
   On Christmas Day in 2010, K.K. told Jodi that Kelly had
been sexually abusing her since she was 5 or 6 years old.
The following day, Jodi called the “Department of Human
Services” and set up an interview with a child advocacy center.
   As part of the interview, K.K. underwent a physical exami-
nation. The examination revealed a healed tear in the hymen
consistent with blunt force penetration. At trial, the nurse who
performed K.K.’s examination testified that an injury such as
K.K.’s occurs infrequently and is uncommon. K.K. had never
had sex with anyone other than Kelly, but a previous boyfriend
had consensually digitally penetrated her. The medical direc-
tor of the child advocacy center testified that the injury found
on K.K. would be something that would be painful and would
not be consistent with a nonpainful digital penetration. He
stated that digital penetration occurring when a teenage girl is
sex­ ally aroused would be “extremely unlikely” to cause the
    u
injury found on K.K.
   Several witnesses testified on Kelly’s behalf, including
his wife, Tiffany; his mother, Nancy K.; and his sister, Stacy
C. Tiffany, Nancy, Nancy’s brother, and Kelly testified that
the only parties the family had during the time K.K. lived
in the farmhouse were on Sunday, January 10, and Sunday,
March 14, 2010. Kelly worked as a truckdriver, and his daily
trucking logs were admitted into evidence at trial. The logs
indicate that Kelly was off duty all day on January 10 and
March 14.
   During the cross-examinations of Tiffany, Nancy, and Stacy,
the State questioned the witnesses about statements they had
made during recorded conversations while visiting Kelly in
jail. In voicing his objection to these lines of questioning,
   Decisions of the Nebraska Court of Appeals
876	20 NEBRASKA APPELLATE REPORTS



Kelly’s attorney admitted that he had been provided copies
of the hours of recorded conversations but had not listened
to them.
   Kelly testified in his own behalf. He testified that K.K. had
never picked him up when he got off work. He stated that he
arrived at the parties on January 10 and March 14, 2010, with
Tiffany and his three younger children. Kelly denied ever sex­
ually assaulting K.K.
   On the morning of the final day of trial, Kelly’s counsel
asked the court to allow him to present testimony from six
additional witnesses who would testify as to the dates of the
family parties. He was allowed to make an offer of proof
that the witnesses would testify that the parties were, in fact,
held on Sunday, January 10, and Sunday, March 14, 2010.
The court refused to allow the testimony, because it would
be unfairly prejudicial to the State and the evidence would
be cumulative.
   The jury ultimately found Kelly guilty of all four counts.
Kelly timely appeals his convictions.
               III. ASSIGNMENTS OF ERROR
   Kelly argues that (1) the evidence was insufficient to sustain
his convictions, (2) the trial court erred in admitting unfairly
prejudicial evidence of prior alleged sexual assaults, and (3)
his trial counsel provided ineffective assistance.
                          IV. ANALYSIS
                    1. Sufficiency of Evidence
                 (a) First Degree Sexual Assault
    [1,2] The State charged Kelly with one count of first degree
sexual assault and one count of incest occurring “[b]etween on
or about September 1, 2009 and on or about April 30, 2010
. . . ,” and a second count of first degree sexual assault and a
second count of incest occurring “[b]etween on or about March
1, 2010 and on or about April 30, 2010 . . . .” A person com-
mits first degree sexual assault if he or she subjects another
person to sexual penetration without the consent of the victim.
Neb. Rev. Stat. § 28-319(1)(a) (Reissue 2008). Sexual penetra-
tion includes:
         Decisions   of the  Nebraska Court of Appeals
	                           STATE v. KELLY	877
	                       Cite as 20 Neb. App. 871

      sexual intercourse in its ordinary meaning, cunnilingus,
      fellatio, anal intercourse, or any intrusion, however slight,
      of any part of the actor’s or victim’s body or any object
      manipulated by the actor into the genital or anal openings
      of the victim’s body which can be reasonably construed
      as being for nonmedical or nonhealth purposes.
Neb. Rev. Stat. § 28-318(6) (Reissue 2008 & Cum. Supp.
2012).
   Kelly first contends that the evidence is insufficient to sup-
port his convictions for first degree sexual assault. He argues
that the State failed to present corroborating evidence and that
K.K.’s testimony is not credible. Kelly’s argument conflicts
with the 1989 enactment of Neb. Rev. Stat. § 29-2028 (Reissue
2008). Since 1989, the State has not been required to corrobo-
rate a victim’s testimony in cases of first degree sexual assault.
See id. So, K.K.’s testimony alone is sufficient if believed by
the finder of fact.
   [3-6] In reviewing a criminal conviction, we do not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. State v. Davis, 277 Neb. 161, 762
N.W.2d 287 (2009). A conviction will be affirmed, in the
absence of prejudicial error, if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support the conviction. Id. Only where evidence lacks suffi-
cient probative value as a matter of law may an appellate court
set aside a guilty verdict as unsupported by evidence beyond
a reasonable doubt. Id. And our standard of review for crimi-
nal cases requires substantial deference to the factual findings
made by the jury. Id.
   The State was required to prove that Kelly subjected K.K.
to sexual penetration without her consent between September
1, 2009, and April 30, 2010, and again between March 1 and
April 30, 2010. Kelly and his family moved into the farmhouse
in September 2009, and K.K. moved out in March 2010. K.K.
testified that Kelly had sex with her on a futon in the farm-
house on more than one occasion. K.K. testified that she never
gave her consent to any sexual activities with Kelly.
   K.K. recalled one particular incident that occurred on the
day of a party at her great-grandparents’ house. K.K. could
   Decisions of the Nebraska Court of Appeals
878	20 NEBRASKA APPELLATE REPORTS



not remember the exact date but testified that it occurred on
a weekend. She remembered going to the party early in the
morning with her grandmother but leaving in the afternoon to
pick Kelly up from work at a truckstop. Before going back to
the party, K.K. and Kelly stopped at the farmhouse, where he
performed oral sex on K.K. and then had sexual intercourse
with her.
   K.K. also testified about another instance the week before
she moved out of the farmhouse in which Kelly forced her to
perform oral sex on him early in the morning. K.K. testified
that this incident occurred “[a]bout middle of the week” prior
to Monday, March 22, 2010.
   Kelly argues that his work logbooks and truck “GPS”
records contradict the two specific incidents about which K.K.
testified. Several witnesses testified that the only family par-
ties during this time period were on Sunday, January 10, and
Sunday, March 14, 2010. Kelly’s work records indicate that he
was off duty all day on January 10 and March 14.
   However, K.K. testified she remembered only that the party
was on a weekend but could not recall the exact date. It was
the defense witnesses who placed the parties on January 10
and March 14, 2010. The logbooks and GPS records would
corroborate K.K.’s testimony on other dates; for example, on
Saturday, January 16, Kelly got off work at 1:45 p.m., and
on Saturday, March 13, Kelly finished work at 4:15 p.m. This
evidence is sufficient for the jury to have found that the party
occurred on a date other than those suggested by Kelly.
   Additionally, there was evidence presented from which the
jury could have inferred that Tiffany, Nancy, and Stacy used
Kelly’s logbooks to determine party dates that would directly
contradict K.K.’s testimony. Stacy was cross-examined on the
following conversation she had while visiting Kelly in jail:
         Stacy: Did mom tell you we found your log books?
         [Kelly]: What?
         Stacy: We found your log books.
         [Kelly]: Yeah, that’s what she said. That would take
      care of a lot of stuff there.
         Stacy: A lot, just a lot, me and Tiff are up to about 2:00
      a.m. going through everything and all that so —
        Decisions   of the  Nebraska Court of Appeals
	                          STATE v. KELLY	879
	                      Cite as 20 Neb. App. 871

         [Kelly]: Did you figure out how all of them lines work?
         Stacy: Uh-huh. We put it all on the calendar and every-
      thing. I know it stinks right now, but it will work out. It
      will all work out and then you know who’s going to have
      to deal with it.
         [Kelly]: Uh-huh.
Stacy admitted on cross-examination that the person who would
“have to deal with it” would be K.K. During Tiffany’s cross-
examination, she was asked whether she created the defense
herself about the logs, and she answered, “Yes.” On cross-
examination of Nancy, the State refreshed her recollection of
a recorded conversation between herself and Kelly while Kelly
was in jail in which Nancy stated, “[W]e’ve got a plan,” to
which Kelly responded, “Well, I hope so.”
   As to the second specific incident, K.K. testified it happened
in approximately the middle of the week before March 22,
2010, in the early morning hours. According to Kelly’s log-
books, he began work at 7:15 a.m. on Monday, March 15, and
was off duty in the early morning hours of Saturday, March
20, and Sunday, March 21. Again, this evidence is sufficient
for the jury to have found that the incident occurred on a date
other than Wednesday, March 17.
   Even without the two specific incidents K.K. recalled, there
was sufficient evidence to support the convictions for first
degree sexual assault because of K.K.’s testimony that Kelly
had nonconsensual sexual penetration with her at the farm-
house on numerous occasions during the time periods in the
second amended information. The evidence satisfies the ele-
ments of first degree sexual assault. While Kelly denied the
allegations, a jury determined otherwise. The conflicts in the
evidence are not for us to resolve, and we give substantial
deference to the jury’s factual findings. We conclude the State
presented sufficient evidence to prove the first degree sexual
assault convictions beyond a reasonable doubt.

                           (b) Incest
   [7,8] Kelly also argues the record lacks sufficient evidence
to support his convictions for incest. According to Neb. Rev.
Stat. § 28-703 (Reissue 2008), a person commits incest if he or
   Decisions of the Nebraska Court of Appeals
880	20 NEBRASKA APPELLATE REPORTS



she knowingly engages in sexual penetration with any person
who falls within the degrees of consanguinity set forth in Neb.
Rev. Stat. § 28-702 (Reissue 2008). Section 28-702 includes a
parent engaging in sexual penetration with his or her child.
   It is undisputed that Kelly is K.K.’s biological father. This,
in addition to the evidence and testimony summarized above, is
sufficient to support the incest convictions. Therefore, Kelly’s
argument is without merit.

                2. Improperly Admitted Evidence
   [9,10] Kelly argues that the trial court erred in allowing
K.K. to testify about prior sexual assaults allegedly com-
mitted by Kelly or, in the alternative, that the court erred by
denying Kelly’s request for a hearing pursuant to § 27-414.
In proceedings where the Nebraska Evidence Rules apply,
the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the
rules make discretion a factor in determining admissibility.
State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012). Where
the Nebraska Evidence Rules commit the evidentiary question
at issue to the discretion of the trial court, an appellate court
reviews the admissibility of evidence for an abuse of discre-
tion. Id.
   At the outset, we note that the State argues Kelly failed
to properly preserve this issue for appeal because he did not
object to this testimony on the basis of § 27-414 at trial. At
trial, K.K. began describing an incident she said occurred when
she was 6 or 7 years old. Kelly objected, stating, “Your Honor,
for the record, I’m going to object as to relevance. We know
what he’s charged with, the dates that we’re charged with.
Apparently we’re going to go back in history.” Although Kelly
did not explicitly identify rule 414 as his objection, his refer-
ence to going “back in history,” combined with the fact that
admissibility of this evidence had previously been addressed
by the court, is sufficient for us to address this assignment
of error.
   [11] In relevant part, § 27-414 provides:
         (3) Before admitting evidence of the accused’s com-
       mission of another offense or offenses of sexual assault
        Decisions   of the  Nebraska Court of Appeals
	                          STATE v. KELLY	881
	                      Cite as 20 Neb. App. 871

      under this section, the court shall conduct a hearing
      outside the presence of any jury. At the hearing, the
      rules of evidence shall apply and the court shall apply a
      section 27-403 balancing and admit the evidence unless
      the risk of prejudice substantially outweighs the proba-
      tive value of the evidence. In assessing the balancing,
      the court may consider any relevant factor such as (a)
      the probability that the other offense occurred, (b) the
      proximity in time and intervening circumstances of the
      other offenses, and (c) the similarity of the other acts to
      the crime charged.
   [12] Prior to § 27-414, which became operative January 1,
2010, evidence of prior bad acts in sexual assault cases was
governed by Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 2008), 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.
   [13] Section 27-404(2) (Cum. Supp. 2012) does not apply
to evidence of a defendant’s other crimes or bad acts if the
evidence is inextricably intertwined with the charged crime.
State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012). This
rule includes evidence that forms part of the factual setting of
the crime, or evidence that is so blended or connected to the
charged crime that proof of the charged crime will necessarily
require proof of the other crimes or bad acts, or if the other
crimes or bad acts are necessary for the prosecution to pre­
sent a coherent picture of the charged crime. Id. The Nebraska
Supreme Court has explained:
         “‘“‘Where evidence of other crimes is “so blended
      or connected, with the one[s] on trial [so] that proof of
      one incidentally involves the other[s]; or explains the
      circumstances; or tends logically to prove any element
      of the crime charged,” it is admissible as an integral part
      of the immediate context of the crime charged. When the
      other crimes evidence is so integrated, it is not extrinsic
   Decisions of the Nebraska Court of Appeals
882	20 NEBRASKA APPELLATE REPORTS



      and therefore not governed by [r]ule 404 . . . . As such,
      prior conduct that forms the factual setting of the crime
      is not rendered inadmissible by rule 404. . . . The State
      is entitled to present a coherent picture of the facts of the
      crime charged, and evidence of prior conduct that forms
      an integral part of the crime charged is not rendered inad-
      missible under rule 404 merely because the acts are crimi-
      nal in their own right, but have not been charged. . . . A
      court does not err in finding rule 404 inapplicable and in
      accepting prior conduct evidence where the prior conduct
      evidence is so closely intertwined with the charged crime
      that the evidence completes the story or provides a total
      picture of the charged crime. . . .’”’”
State v. Robinson, 271 Neb. 698, 714, 715 N.W.2d 531, 549
(2006).
   We do not read rule 414 to change the law regarding acts
which are inextricably intertwined to the charged offenses.
Because they were not considered extrinsic and therefore not
subject to rule 404 before, they are not extrinsic and not sub-
ject to rule 414 now. As a result, even though evidence of prior
sexual assaults may be considered prior bad acts, a hearing
under rule 414 is not required if this evidence forms the factual
setting of the charged offenses and is necessary to present a
complete and coherent picture of the facts.
   In the present case, we conclude the district court did not
abuse its discretion in determining the evidence of prior sexual
assaults was inextricably intertwined with the charged offenses.
The 10-year history between Kelly and K.K. forms the factual
setting of the crimes at issue. Although some of the events to
which K.K. testified were more remote in time, they were nec-
essary to present a coherent historical picture of the facts lead-
ing up to the charged offenses for the jury. As such, a hearing
pursuant to rule 414 was not required.

             3. Ineffective Assistance of Counsel
   Kelly argues his trial counsel was ineffective for (1) failing
to request a jury instruction limiting the jury’s consideration
of the evidence of prior offenses of sexual assault, (2) failing
to adequately prepare for trial by listening to the recordings of
         Decisions   of the  Nebraska Court of Appeals
	                           STATE v. KELLY	883
	                       Cite as 20 Neb. App. 871

Kelly’s conversations with visitors at the jail, and (3) failing to
endorse additional witnesses who would have corroborated the
testimony called into question by jail recordings.
    [14-17] To prevail on a claim of ineffective assistance of
counsel, the defendant must show that counsel’s performance
was deficient and that this deficient performance actually preju-
diced his or her defense. See State v. Young, 279 Neb. 602, 780
N.W.2d 28 (2010). Although Nebraska law requires that issues
of ineffective assistance of counsel be raised on direct appeal
or be waived, the fact that they are raised does not necessarily
mean they can be resolved. See id. In most instances, they can-
not, because the trial record that an appellate court reviews is
“‘devoted to issues of guilt or innocence’” and usually “‘will
not disclose the facts necessary to decide either prong of the
. . . analysis.’” Id. at 607, 780 N.W.2d at 34. A claim of inef-
fective assistance of counsel need not be dismissed merely
because it is made on direct appeal. The determining factor is
whether the record is sufficient to adequately review the ques-
tion. State v. Young, supra.
                 (a) Limiting Jury Instruction
   Kelly claims that his trial counsel was ineffective in failing
to request a limiting jury instruction. An evaluation of trial
counsel’s actions would require an evaluation of trial strat-
egy and of matters not contained in the record. We conclude
that the record on direct appeal is not sufficient to adequately
review this claim.
                 (b) Recorded Jail Conversations
   Kelly argues that his trial counsel was ineffective in failing
to listen to the recorded jail conversations. Because the record
does not disclose the contents of the recorded conversations,
we cannot determine whether failure of trial counsel to listen to
and utilize the conversations at trial prejudiced Kelly’s defense.
Therefore, we conclude that the record is not sufficient to
adequately review this claim.
                    (c) Additional Witnesses
   Kelly asserts that his trial counsel was ineffective in failing
to timely endorse additional witnesses whose testimony would
   Decisions of the Nebraska Court of Appeals
884	20 NEBRASKA APPELLATE REPORTS



have rehabilitated the testimony of Tiffany, Nancy, and Stacy
which had been impeached. The record on appeal is not suf-
ficient to review this claim, because it does not indicate why
the proposed additional witnesses were not included on the
original witness list, nor does the record disclose trial counsel’s
strategy in trial preparation.
                       V. CONCLUSION
   We find that there was sufficient evidence to sustain the
convictions on all four counts. It was not an abuse of discretion
for the trial court to determine that evidence of prior sexual
assaults by Kelly against K.K. was inextricably intertwined
with the charged offenses and deny Kelly’s request for a rule
414 hearing. We conclude that the record is not sufficient to
review the grounds for Kelly’s ineffective assistance of coun-
sel claims.
                                                     Affirmed.


                       Edwin H. Kuhnel, appellant, v.
                         BNSF R ailway Company,
                          a corporation, appellee.
                                     ___ N.W.2d ___

                          Filed June 25, 2013.     No. A-12-296.

 1.	 Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
     given by a trial court are correct is a question of law. When dispositive issues on
     appeal present questions of law, an appellate court has an obligation to reach an
     independent conclusion irrespective of the decision of the court below.
 2.	 Appeal and Error. Plain error may be asserted for the first time on appeal or be
     noted by an appellate court on its own motion.
 3.	 Appeal and Error: Words and Phrases. Plain error exists where there is an
     error, plainly evident from the record but not complained of at trial, which preju-
     dicially affects a substantial right of a litigant and is of such a nature that to leave
     it uncorrected would cause a miscarriage of justice or result in damage to the
     integrity, reputation, and fairness of the judicial process.
 4.	 Jury Instructions: Pleadings: Evidence. A trial court, whether requested to do
     so or not, has a duty to instruct the jury on issues presented by the pleadings and
     the evidence.
 5.	 Jury Instructions: Appeal and Error. All the jury instructions must be read
     together, and if, taken as a whole, they correctly state the law, are not misleading,
