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                                                        - 488 -
                                  Nebraska Supreme Court A dvance Sheets
                                          301 Nebraska R eports
                                                 STATE v. GOLYAR
                                                 Cite as 301 Neb. 488




                                        State of Nebraska, appellee, v.
                                         Shanna E. Golyar, appellant.
                                                   ___ N.W.2d ___

                                        Filed November 9, 2018.   No. S-17-955.

                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 ele-
                    ments of the crime beyond a reasonable doubt.
                2.	 Effectiveness of Counsel: Constitutional Law: Statutes: Records:
                    Appeal and Error. Whether a claim of ineffective assistance of trial
                    counsel can be determined on direct appeal presents a question of law,
                    which turns upon the sufficiency of the record to address the claim
                    without an evidentiary hearing or whether the claim rests solely on the
                    interpretation of a statute or constitutional requirement. An appellate
                    court determines as a matter of law whether the record conclusively
                    shows that (1) a defense counsel’s performance was deficient or (2)
                    a defendant was or was not prejudiced by a defense counsel’s alleged
                    deficient performance.
                3.	 Homicide: Intent. A person commits first degree murder if he or
                    she kills another person purposely and with deliberate and premedi-
                    tated malice.
                4.	 Criminal Law: Homicide: Proof: Words and Phrases. In a homicide
                    case, corpus delicti is the body or substance of the crime—the fact that
                    a crime has been committed. It is not established until it is proved that
                    a human being is dead and that the death occurred as a result of the
                    criminal agency of another.
                5.	 Homicide: Circumstantial Evidence: Proof. The body of a missing
                    person is not required to prove the corpus delicti for homicide. Instead,
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             Nebraska Supreme Court A dvance Sheets
                     301 Nebraska R eports
                             STATE v. GOLYAR
                             Cite as 301 Neb. 488

     courts have generally held that circumstantial evidence associated with
     the victim’s disappearance can be sufficient to establish the death.
 6.	 Homicide: Intent: Circumstantial Evidence: Proof. Purposeful, delib-
     erate, premeditated murder may be proved circumstantially.
 7.	 Homicide: Intent: Words and Phrases. In the homicide context, delib-
     erate means not suddenly, not rashly, and requires that the defendant con-
     sidered the probable consequences of his or her act before doing the act.
 8.	 ____: ____: ____. The term “premeditated” means to have formed a
     design to commit an act before it was done.
 9.	 Homicide: Intent. One kills with premeditated malice if, before the act
     causing death occurs, one has formed the intent or determined to kill the
     victim without legal justification.
10.	 Homicide: Intent: Time. No particular length of time for premeditation
     is required, provided the intent to kill is formed before the act is com-
     mitted and not simultaneously with the act that caused the death.
11.	 ____: ____: ____. The design or purpose to kill may be formed upon
     premeditation and deliberation at any moment before the homicide is
     committed.
12.	 Criminal Law: Evidence: Intent. The intent with which an act is com-
     mitted is a mental process and may be inferred from the words and acts
     of the defendant and from the circumstances surrounding the incident.
13.	 Arson. A person commits arson in the second degree if he or she inten-
     tionally damages a building or property contained within a building by
     starting a fire or causing an explosion.
14.	 Arson: Circumstantial Evidence: Proof. Circumstantial evidence is
     sufficient to support a conviction for arson if such evidence and the rea-
     sonable inferences that may be drawn therefrom establish guilt beyond
     a reasonable doubt.
15.	 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 postconviction proceeding.
16.	 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 par-
     ticularity 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 court.
17.	 Effectiveness of Counsel: Records: Appeal and Error. The fact that
     an ineffective assistance of counsel claim is raised on direct appeal does
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              Nebraska Supreme Court A dvance Sheets
                      301 Nebraska R eports
                              STATE v. GOLYAR
                              Cite as 301 Neb. 488

     not necessarily mean that it can be resolved. The determining factor is
     whether the record is sufficient to adequately review the question.
18.	 Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
     fective assistance of trial counsel may be determined on direct appeal is
     a question of law.
19.	 ____: ____. 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 deter-
     mine whether counsel did or did not provide effective assistance and
     whether the defendant was or was not prejudiced by counsel’s alleged
     deficient performance.
20.	 Effectiveness of Counsel: Jury Trials: Waiver. The decision to waive
     a jury trial is ultimately and solely the defendant’s, and, therefore, the
     defendant must bear the responsibility for that decision.
21.	 ____: ____: ____. Counsel’s advice to waive a jury trial can be the
     source of a valid claim of ineffective assistance only when (1) counsel
     interferes with the client’s freedom to decide to waive a jury trial or (2)
     the client can point to specific advice of counsel so unreasonable as to
     vitiate the knowing and intelligent waiver of the right.
22.	 Trial: Joinder. Prejudice from joinder cannot be shown if evidence of
     one charge would have been admissible in a separate trial of another
     charge.
23.	 Trial: Constitutional Law: Testimony. A defendant has a fundamental
     constitutional right to testify.
24.	 Trial: Attorney and Client: Testimony: Waiver. The right to testify
     is personal to the defendant and cannot be waived by defense counsel’s
     acting alone.
25.	 Trial: Attorney and Client: Testimony. Defense counsel bears the pri-
     mary responsibility for advising a defendant of his or her right to testify
     or not to testify, of the strategic implications of each choice, and that the
     choice is ultimately for the defendant to make.
26.	 Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
     Waiver. Defense counsel’s advice to waive the right to testify can pre­
     sent a valid claim of ineffective assistance of counsel in two instances:
     (1) if the defendant shows that counsel interfered with his or her free-
     dom to decide to testify or (2) if counsel’s tactical advice to waive the
     right was unreasonable.

   Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
  Thomas C. Riley, Douglas County Public Defender, Lori A.
Hoetger, and Scott C. Sladek for appellant.
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          Nebraska Supreme Court A dvance Sheets
                  301 Nebraska R eports
                       STATE v. GOLYAR
                       Cite as 301 Neb. 488

  Douglas J. Peterson, Attorney General, Sarah E. Marfisi, and
Erin E. Tangeman for appellee.
  Heavican, C.J., Cassel, Stacy, Funke,           Papik,   and
Freudenberg, JJ., and Moore, Chief Judge.
   Stacy, J.
   Cari Farver disappeared on November 13, 2012, and her
body has never been found. About 4 years after Farver’s disap-
pearance, Shanna E. Golyar was charged with Farver’s mur-
der and with arson. At trial, the State introduced uncontested
evidence that Golyar considered Farver a romantic rival and
that Golyar posed as Farver (and others) for several years in
emails, texts, and on social media. While posing as someone
else, Golyar confessed in several emails to murdering Farver.
   Golyar was found guilty of first degree murder and second
degree arson after a bench trial. She was sentenced to life
imprisonment on the murder conviction and to a consecutive
sentence of 18 to 20 years’ imprisonment on the arson convic-
tion. In this direct appeal, Golyar contends the evidence was
insufficient to support the convictions and claims her trial
counsel was ineffective in various ways. We affirm.
                          I. FACTS
                1. Golyar Meets David K roupa
   In late spring or early summer 2012, Golyar started dat-
ing David Kroupa after meeting him through an online dat-
ing site. Kroupa described the relationship as “[c]asual” and
informed Golyar he was also dating other women. From
almost the beginning, however, Golyar wanted a commitment
from Kroupa. The State’s general theory was that Golyar
was obsessed with Kroupa and did not want him dating
other women.
                    2. K roupa Meets Farver
   Near the end of October 2012, Kroupa met the victim in this
case, Farver. Kroupa’s first date with Farver was on October 29
at a restaurant in Omaha, Nebraska. During the date, Kroupa’s
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                        STATE v. GOLYAR
                        Cite as 301 Neb. 488

cell phone began “blowing up” with calls and text messages
from Golyar. He initially ignored the messages, but when they
continued, he contacted Golyar and told her he was on a date
and could not respond. When they left the restaurant, Kroupa
and Farver went to Kroupa’s nearby apartment.
   Almost immediately after they arrived, Golyar started ring-
ing the bell at the security door of Kroupa’s apartment build-
ing. Kroupa left Farver in his apartment and went to the secu-
rity door to speak with Golyar. Golyar was crying and upset
and insisted Kroupa let her in so she could retrieve some of her
belongings from his apartment. Kroupa left Golyar at the secu-
rity door and went back to his apartment to explain the situa-
tion to Farver. Farver decided to leave, and as she did so, she
passed by Golyar, who was still standing by the security door.
Farver got into her black Ford Explorer, which was parked
near the security door, and drove away.
   After Farver left, Kroupa let Golyar into his apartment to
retrieve her belongings. She was still upset and did not stay
long before he asked her to leave. Not long after Golyar left,
Kroupa and Farver spoke on the telephone and Kroupa then
traveled to Farver’s home in Macedonia, Iowa, where he spent
the night.
   Kroupa and Farver continued to see a lot of each other over
the next several weeks. Kroupa also continued to see Golyar
during this time period. On November 9 or 10, 2012, Farver’s
Explorer was vandalized with spray paint while parked in
Macedonia. Investigators subsequently learned that Golyar,
via a Facebook account she had created under a false persona,
claimed to be in Macedonia during that time period. That impos-
ter Facebook account had also attempted to “friend” Farver.
   Farver worked in Omaha at a business not far from Kroupa’s
apartment. Starting Monday, November 12, 2012, she was
beginning a weeklong project at work that would require her
to work late hours. Farver arranged for her teenage son to stay
with her mother and stepfather during that week, and Kroupa
agreed Farver could spend the week with him at his apartment.
Farver went to work as planned on Monday, November 12,
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                        STATE v. GOLYAR
                        Cite as 301 Neb. 488

and left work between 8 and 9 p.m. Her coworkers expected
her at work the next morning. Farver spent the night with
Kroupa at his apartment.
   Kroupa left for work on November 13, 2012, at approxi-
mately 6:20 a.m. At that time, Farver was awake and using her
laptop computer. No one has seen Farver since.
              3. Farver’s Cell Phone, Debit Card,
                     and Facebook Account
   Records from Farver’s employer showed she called in on
the work project at 6:15 a.m. on November 13, 2012. Other
records showed Farver logged into her Facebook account from
Kroupa’s apartment at 6:39 a.m. and logged out at 6:42 a.m.
   At 9:54 a.m., Farver’s Facebook account “unfriended”
Kroupa. At 10 a.m., Kroupa received a text from Farver’s cell
phone asking him if he wanted to live together. This surprised
him, as he thought Farver agreed they were only involved in a
casual relationship, and he responded, “No.” Twenty seconds
later, he received an angry text from Farver’s cell phone break-
ing off the relationship.
   Also on November 13, 2012, Farver’s cell phone texted
Farver’s mother. The text said Farver had found a new job,
which surprised her mother. Farver’s mother texted back over
the course of the next several days and asked questions,
including when Farver was coming to pick up her son for an
upcoming family wedding, but received no response. This was
unusual because Farver and her mother typically had daily
contact. Farver’s mother reported her daughter missing on
Friday, November 16.
   On November 15, 2012, Farver’s employer received a
text from her cell phone, stating that she was resigning and
was sending “Shanna Golyar” to replace her. Later that day,
Golyar filled out an online application with the employer. On
November 16, Farver’s debit card was used to make purchases
of $167.78 and $226.56 at two separate discount stores in
Omaha. An item purchased at one of the stores was a shower
curtain with a distinctive black-and-white floral pattern.
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          Nebraska Supreme Court A dvance Sheets
                  301 Nebraska R eports
                      STATE v. GOLYAR
                      Cite as 301 Neb. 488

   On November 17, 2012, Farver’s mother received another
text from Farver’s cell phone. It included a photograph of a
check for $5,000 made out to Farver and signed by Golyar,
and asked Farver’s mother to let Golyar into Farver’s home
to retrieve a bedroom set Golyar had allegedly purchased via
the check. Farver’s mother was suspicious about the text and
contacted police. Police had Farver’s service provider “ping”
her cell phone to attempt to locate it, and the ping showed
that in the early hours of November 18, the cell phone was
at an Omaha location not far from Golyar’s residence. Police
searched for Farver’s cell phone, but it was never found.
   Farver’s Facebook account continued to be active after
November 13, 2012, making posts and sending messages. Trial
evidence demonstrated, however, that the account making
the posts and sending the messages was actually an imposter
account, created using photographs and information available
on Farver’s actual Facebook account. The imposter account
making those posts was linked via digital evidence to Golyar.
This imposter account attempted to contact both Farver’s
mother and Farver’s teenage son. Photographs from Farver’s
original Facebook account were also used by Golyar to make
online dating profiles in Farver’s name.
                   4. H arassment of Golyar
                          and K roupa
   Beginning in November 2012 and continuing until approxi-
mately December 2015, both Golyar and Kroupa began receiv-
ing frequent harassing texts and emails, purportedly from
Farver. The texts came from as many as 30 different telephone
numbers. The emails came from as many as 30 different email
accounts. Kroupa alone received 50 to 60 such emails per day,
in addition to frequent texts and missed telephone calls. The
texts and emails frequently referred to Golyar as a “whore.”
   Golyar reported vandalism to her property, allegedly by
Farver, on November 23, 2012, and February 12 and April
1, 2013. Golyar also reported someone had broken into
her garage prior to November 23, 2012, and stolen checks
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                        STATE v. GOLYAR
                        Cite as 301 Neb. 488

from her. Kroupa reported vandalism to his property in July,
October, and December 2013. Many of these acts of vandal-
ism involved messages referring to Golyar as a “whore.” Each
time an act of vandalism occurred, Kroupa, Golyar, or both
would receive a text or email from “Farver” taking respon-
sibility for the act. The acts of vandalism tended to occur at
times when Kroupa was becoming less interested in Golyar,
and the two were drawn back together by their mutual fear or
dislike of Farver.
   In January 2013, with Kroupa’s consent, the police down-
loaded information from his cell phone to obtain data related
to the texts and emails purportedly sent by Farver. At the same
time, with Golyar’s consent, police also downloaded similar
information from her cell phone. The downloads were “logi-
cal” downloads, which did not include data previously deleted
from the devices.
                     5. Todd Butterbaugh
   Todd Butterbaugh met Golyar in September 2010 through
an online dating site, and they dated until September 2015.
Butterbaugh understood the relationship was exclusive. During
the course of that relationship, Butterbaugh helped Golyar
with her bills, helped her buy a car, let her move into his resi-
dence with her two children, and cared for her children.
   In January 2013, Butterbaugh began receiving text and
email messages, purportedly from Farver. In those messages,
“Farver” explained she was one of Golyar’s friends and
Golyar had given her Butterbaugh’s contact information in
case “Farver” ever needed an emergency contact for Golyar.
When Butterbaugh asked Golyar about the messages, she
confirmed this and said Farver was her friend. In general, the
texts and emails between “Farver” and Butterbaugh discussed
Butterbaugh’s relationship with Golyar. Butterbaugh did not
learn of Kroupa until Golyar’s cell phone was downloaded
by the police. At that time, Golyar told Butterbaugh she had
dated Kroupa before she met Butterbaugh and that they had
remained friends.
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                         STATE v. GOLYAR
                         Cite as 301 Neb. 488

   Golyar and her two children moved in with Butterbaugh in
July 2013 and stayed until December 2015 or January 2016.
During the time she dated and lived with Butterbaugh, Golyar
did not tell him she was being harassed by Farver or anyone
else. While staying with Butterbaugh, Golyar had access to
his Wi-Fi network and several electronic devices, including
a laptop and an iPod. Golyar and Butterbaugh broke up in
October 2015.
                     6. August 17, 2013, Fire
   Golyar and Kroupa broke off their relationship in early
August 2013. Shortly thereafter, on Saturday, August 17, at
8:14 a.m., a fire was reported at a residence Golyar rented in
Omaha. Golyar told investigators she and her children had left
the residence at 3 p.m. the day before, and she had returned at
approximately 7:30 a.m. the following day and discovered the
fire. She told investigators she was in the process of moving
from the residence, but they later learned she had been evicted.
Firefighters found smoke in the home, but the fire had cooled
and was no longer hot. Golyar’s four pets died in the fire.
   Investigators discovered at least six different points of origin
of the fire and found accelerants. They quickly determined the
fire had been set intentionally.
   Golyar and Kroupa both received emails, purportedly from
Farver, claiming responsibility for the fire. The email to Golyar
was sent at 12:56 a.m. on August 17, 2013, and said “Farver”
hoped Golyar and her children burned to death. The email to
Kroupa was sent at 11:57 p.m. on August 16 and said, “I am
not lying I set that nasty whores house on fire I hope the whore
and her kids die in it.” Golyar and Kroupa got back together
after the fire.
                  7. A my Flora and December
                        5, 2015, Shooting
   Before Kroupa met Golyar and Farver, he had a long-term
relationship with Amy Flora and they had two children together.
Flora and Kroupa remained amicable after their breakup. Flora
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                        STATE v. GOLYAR
                        Cite as 301 Neb. 488

and the children lived in Omaha, and Golyar met Flora briefly
when she accompanied Kroupa to pick up his children for par-
enting time. In 2013, Flora began receiving harassing Facebook
and text messages purportedly from Farver. Some of the mes-
sages indicated Flora was being watched.
   Golyar and Kroupa broke up again in mid-November 2015,
because Kroupa decided to have a “more serious” relationship
with another woman. Shortly thereafter, on Friday, December
4, Golyar told police that Flora had been sending her harassing
messages via Facebook and text. Golyar told police that she
now suspected it was Flora, not Farver, who had been harass-
ing her and Kroupa all along. Golyar consented to a download
of her cell phone so police could review the harassing mes-
sages. After the download, the investigating officer told Golyar
he would follow up with Flora on Monday.
   On Saturday morning, Golyar sent the officer additional
harassing messages she claimed were sent to her by Flora.
Later that day, at 6:40 p.m., officers were dispatched to a park
located in a wilderness area in Council Bluffs, Iowa. They
found Golyar sitting on the ground near the driver’s side of
the only car in the parking lot. Golyar had been shot in the
left thigh. Golyar’s accounts of how the shooting occurred var-
ied significantly over the course of the next several days and
weeks, but she insisted Flora had shot her.
   Based on Golyar’s statements at the scene, police went to
Flora’s home. Flora testified that she answered her door to
find “police standing at [her] door with guns pointed at [her].”
Flora had been home with her 2-year-old son, and officers
noticed her car was cold to the touch, indicating it had not
been used recently. Police questioned Flora and found her
cooperative.
   Police obtained consent from both Flora and Kroupa to
download their cell phones on Monday, December 7, 2015.
The download from Kroupa’s cell phone showed many of the
emails he received from “Farver” were sent from Butterbaugh’s
internet protocol (IP) address while Golyar was living with
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                        STATE v. GOLYAR
                        Cite as 301 Neb. 488

Butterbaugh. A digital forensic expert explained that an IP
address is like a postal address for an electronic device and
that it references a device’s access to the internet from a fixed
location. He testified that if a device accessed a residence’s
Wi-Fi, the IP address will be that residence.
   In late January or early February 2016, Kroupa moved in
with Flora over a weekend. The following week, Golyar con-
tacted police, very upset that Flora had not been charged in
relation to the shooting. Golyar again consented to a down-
load of her cell phone after telling police she had received
additional harassing emails from “Flora.” At this time, police
generally told Golyar that they suspected Flora in the shoot-
ing, but needed additional information to charge her. This
was untrue, because by this time, police suspected Golyar had
shot herself.
   Golyar then began receiving additional emails from “Flora”
about Farver’s murder. These emails are dated between
December 21, 2015, and February 24, 2016. Several of the
emails confessed to the murder of Farver and the arson of
Golyar’s residence, and at least one confessed to the shooting
of Golyar. The emails confessing to killing Farver gave details
of how the murder occurred. The emails contained various and
sometimes inconsistent details about the murder, but consist­
ently described that Farver was stabbed in her vehicle, her
body was wrapped in a tarp then later burned and put in the
garbage, her vehicle was cleaned afterward, the killer posed as
Farver after the killing, and the killer went to Farver’s home
after the killing. One email describes the interior of Farver’s
home with precision.
                  8. Farver’s Explorer and
                       Other Evidence
  The January 8, 2013, download from Golyar’s cell phone
showed the cell phone had made six calls to Farver’s landline
on November 6 and 7, 2012, just days before Farver disap-
peared. Also discovered in the download of Golyar’s cell
phone was a photograph of Farver’s Ford Explorer. Metadata
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                  301 Nebraska R eports
                       STATE v. GOLYAR
                       Cite as 301 Neb. 488

showed the photograph was taken December 24, 2012. This
date was after Farver disappeared on November 13 and before
her Explorer was found parked near Kroupa’s apartment in
January 2013. The download of Golyar’s cell phone also
included a video that was uploaded to YouTube, a video-­
sharing website, by “Farver.” The video showed an apartment
complex that looked like Kroupa’s. The IP address used to
access the YouTube account was Butterbaugh’s. The YouTube
account was created in 2014, after Farver’s disappearance.
   When Farver’s Explorer was initially discovered in Omaha
in January 2013, it was examined by a crime scene techni-
cian. At the time, the technician was primarily looking for
fingerprints and noticed the vehicle was very clean. The only
fingerprints found were on a mint container in the center cup-
holder. In September 2015, investigators learned the finger-
prints were Golyar’s.
   On December 8, 2015, the Explorer was processed again by
the same technician. This time she was looking for blood, but
found none. On February 18, 2016, the technician processed
the vehicle a third time. This time, she removed the cloth seat
covers and found a large red stain on the passenger side seat
foam. DNA testing showed it was Farver’s blood.
                     9. Search Warrants
   In February 2016, investigators obtained warrants and
searched the apartment where Golyar was living, as well as the
residence where she had lived with Butterbaugh. The storage
unit where Farver’s mother had moved Farver’s belongings
was searched in March 2016.
   Various items were found at Golyar’s apartment, including
LG cell phones; a black-and-white floral shower curtain that
matched the description of the one purchased at the discount
store with Farver’s debit card on November 16, 2012; a red
Sony video camcorder; a Nikon Coolpix digital camera; and
memory cards. Owners’ manuals for the Nikon camera and the
red Sony camcorder were found among Farver’s belongings
during the search of the storage unit, along with receipts from
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                   301 Nebraska R eports
                        STATE v. GOLYAR
                        Cite as 301 Neb. 488

a furniture store showing Farver had purchased both items in
October 2012.

                10. Evidence Linked Golyar to
                 “Farver” and “Flora” Emails
   Police also obtained search warrants for a large number of
email accounts, including 31 from Google, 9 from Yahoo!, and
5 from Microsoft. A digital forensic examiner gave detailed
testimony linking Golyar to all relevant messages sent by
“Farver” after her disappearance from these accounts based on
IP address and device usage. The forensic examiner explained
that when using these “imposter” accounts, Golyar often
attempted to hide her identity by using services that either dis-
guised her IP address and/or sent messages at times other than
when they were composed. The forensic examiner also gave
detailed testimony linking Golyar to all relevant messages sent
by “Flora” from these accounts based on IP address and device
usage. At trial, Golyar did not contest the forensic evidence
linking her to these imposter accounts. Similarly, on appeal,
Golyar does not contest that the State proved the emails from
“Farver” and “Flora” were actually authored by Golyar.

                    11. Evidence R elating to
                         Farver’s Body
   In one of the emails confessing to the murder, “Flora”
described a “yin-yang” tattoo on Farver’s left hip. This tattoo
had never been described to the public. Police located Farver’s
ex-husband and learned that when the two married in 2009,
they got matching yin-yang tattoos. Farver’s ex-husband’s tat-
too was on his calf, and Farver’s was on her left hip. Police
also obtained a photograph of Farver from her mother which
showed a tattoo of the Chinese symbol for mother on the top
of Farver’s left foot.
   In February 2017, investigators recovered a tablet computer
from Kroupa that had been accessible to Golyar while the two
were dating. The tablet had a memory card known as a micro
SD card inserted into it. The forensic digital examiner found
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                   301 Nebraska R eports
                        STATE v. GOLYAR
                        Cite as 301 Neb. 488

no existing files on the SD card, but was able to recover many
deleted ones. These included over 13,000 photographs and
numerous text messages sent either to or from Golyar.
   The tablet did not have text capabilities, so the examiner
realized the SD card must have been used with another device
at one time. He discovered that Golyar’s “LG VS920” cell
phone, the contents of which were downloaded by police on
January 8, 2013, was compatible with the SD card. The login
file for Golyar’s cell phone showed it had used the SD card.
And 458 of the 13,000 photographs on the card were also on
Golyar’s cell phone when it was downloaded.
   Several of the photographs on the SD card were images of
what appears to be a blue and grey or silver tarp, taken from
various angles. Another photograph depicts a flesh-colored
object with a yin-yang symbol on it. A forensic video analyst
compared the yin-yang symbol in this photograph to an image
of the yin-yang symbol on Farver’s ex-husband’s calf and
concluded they were very consistent with each other. Another
photograph depicts a flesh-colored object with a Chinese sym-
bol on it. The video analyst compared the symbol in this pho-
tograph to the image of the tattoo on Farver’s left foot provided
by Farver’s mother, and concluded the images were also very
consistent with one another.
   A forensic pathologist testified that the photograph depict-
ing the Chinese symbol was a photograph of the top part of a
human left foot. The pathologist opined that the foot showed
signs of decomposition, but admitted she could not tell from
the photograph how long the foot had been decomposing.
   Golyar waived a jury trial, and she did not testify at the
bench trial. After the State rested, Golyar moved for a “directed
motion of acquittal,” which the court overruled. The defense
did not present any evidence. Golyar was convicted of one
count of first degree murder and one count of second degree
arson. She was sentenced to life imprisonment on the murder
conviction and to 18 to 20 years’ imprisonment on the arson
conviction, the sentences to run consecutively. She appeals,
represented by new counsel.
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                              STATE v. GOLYAR
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                II. ASSIGNMENTS OF ERROR
   Golyar assigns and argues that the evidence at trial was
insufficient to prove the elements of first degree murder and
second degree arson. She also contends her trial counsel pro-
vided ineffective assistance by (1) not adequately advising
her of her right to a jury trial, (2) failing to move to sever the
charges against her, (3) failing to file any pretrial motions, (4)
waiving objections to the vast majority of evidence introduced
by the State, (5) failing to put on any sort of defense and/or
investigate potential witnesses and alibis, (6) failing to call
an expert to rebut the pathologist’s testimony, (7) failing to
adequately advise Golyar on her right to testify at trial, and (8)
being so unprepared for trial and unfamiliar with the case that
he referred to Golyar and Farver by the wrong names.

                III. STANDARD OF REVIEW
   [1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, 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.1
   [2] Whether a claim of ineffective assistance of trial coun-
sel can be determined on direct appeal presents a question
of law, which turns upon the sufficiency of the record to
address the claim without an evidentiary hearing or whether
the claim rests solely on the interpretation of a statute or
constitutional requirement. We determine as a matter of law
whether the record conclusively shows that (1) a defense
counsel’s performance was deficient or (2) a defendant was

 1	
      State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018), disapproved on
      other grounds, State v. Avina-Murillo, ante p. 185, 917 N.W.2d 865.
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                              STATE v. GOLYAR
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or was not prejudiced by a defense counsel’s alleged defi-
cient performance.2
                        IV. ANALYSIS
             1. Evidence Was Sufficient to Prove
                     First Degree Murder
   [3] Golyar argues the State’s evidence was insufficient
to show she committed first degree murder. In Nebraska, a
person commits first degree murder if he or she kills another
person purposely and with deliberate and premeditated mal-
ice.3 The State concedes the elements of murder were proved
with circumstantial evidence, but contends it met its bur-
den of proving each element beyond a reasonable doubt.
We agree.
                       (a) Evidence of Death
   [4,5] In a homicide case, corpus delicti is the body or sub-
stance of the crime—the fact that a crime has been commit-
ted.4 It is not established until it is proved that a human being
is dead and that the death occurred as a result of the criminal
agency of another.5 Here, Farver’s body was never recov-
ered. However, the body of a missing person is not required
to prove the corpus delicti for homicide.6 Instead, courts
have generally held that circumstantial evidence associated
with the victim’s disappearance can be sufficient to establish
the death.7
   This court has specifically addressed such a situation. In
State v. Edwards,8 we found sufficient circumstantial evidence

 2	
      Id.
 3	
      Neb. Rev. Stat. § 28-303 (Supp. 2017).
 4	
      State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
 5	
      Id.
 6	
      Id.
 7	
      See id.
 8	
      Id.
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of a victim’s death even though her body was never recovered.
Edwards relied in part on evidence that the victim abruptly
severed her habits and relationships without explanation, aban-
doned her personal effects, and did not take any money from
her bank account after her disappearance. Edwards also found
other facts were suggestive of an unlawful killing, includ-
ing that the victim’s blood was found and the suspect had
attempted to conceal the victim’s disappearance.
   Similar circumstantial evidence of Farver’s death appears
in the record. Farver has not been seen since November 13,
2012, when she abruptly ended her contacts with her teenage
son, her parents, her employer, and her current boyfriend. Her
money has not been accessed, aside from the use of her debit
card on November 16, and that use has been linked to Golyar.
Farver’s blood was found in her vehicle. Overwhelming and
uncontested evidence showed that Golyar posed as Farver
online and in social media in an attempt to conceal Farver’s
disappearance.
   In addition, the record before us contains additional cir-
cumstantial evidence of Farver’s death. Photographs of what
appear to be body parts with tattoos identical to Farver’s tat-
toos were discovered on an SD card used with Golyar’s cell
phone. And, most importantly, a forensic pathologist testified
that a photograph on the same SD card of a human left foot,
which had a tattoo consistent with the one on Farver’s left foot,
showed signs the foot was in a state of decomposition.
   We conclude a rational trier of fact, viewing the evidence
in the light most favorable to the State, could have concluded
the State proved beyond a reasonable doubt that Farver
is dead.
                    (b) Purposely, Deliberate,
                        and Premeditated
   Golyar argues that even if there was sufficient evidence
to prove Farver’s death, the “State did not introduce any
evidence whatsoever to prove [Golyar] killed . . . Farver
intentionally . . . and perhaps most significantly, the State’s
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evidence was insufficient to prove [Golyar] killed [Farver]
with deliberate and premeditated malice.”9
   [6-12] Purposeful, deliberate, premeditated murder may be
proved circumstantially.10 In the homicide context, deliberate
means not suddenly, not rashly, and requires that the defendant
considered the probable consequences of his or her act before
doing the act.11 The term “premeditated” means to have formed
a design to commit an act before it was done.12 One kills with
premeditated malice if, before the act causing death occurs,
one has formed the intent or determined to kill the victim
without legal justification.13 No particular length of time for
premeditation is required, provided the intent to kill is formed
before the act is committed and not simultaneously with the
act that caused the death.14 The design or purpose to kill may
be formed upon premeditation and deliberation at any moment
before the homicide is committed.15 The intent with which
an act is committed is a mental process and may be inferred
form the words and acts of the defendant and from the circum-
stances surrounding the incident.16
   A rational fact finder viewing the evidence in the light
most favorable to the State could have found that Golyar was
obsessed with Kroupa and thus had a motive to harm Farver.
The record shows that just days before Farver’s disappear-
ance, Golyar made six telephone calls to Farver’s landline and
vandalized Farver’s vehicle, suggesting a premeditated plan to
harm Farver. Most significantly, however, the record contains
the emails, authored by Golyar posing as Flora, confessing to

 9	
      Brief for appellant at 24.
10	
      See State v. Escamilla, 291 Neb. 191, 864 N.W.2d 376 (2015).
11	
      Id.
12	
      Id.
13	
      Id.
14	
      Id.
15	
      See id.
16	
      See State v. Sing, 275 Neb. 391, 746 N.W.2d 690 (2008).
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the details of the murder. A rational trier of fact could con-
clude these emails are Golyar’s own statements describing the
manner of the murder, the motive for the murder, and her state
of mind in committing the murder.
   The emails authored by Golyar contain considerable evi-
dence that Golyar killed Farver purposely and with deliberate
and premediated malice. Some examples from those emails,
with spelling errors corrected, include:
         “I atta[c]ked her with a kn[i]fe I stabbed her three to
      four times in chest and stomach area. I t[h]en took her out
      and burned her.”
         ....
         “I k[i]lled [Farver] because she . . . wouldn’t leave
      [Kroupa] alone.”
         ....
         “I even went out to [Farver’s] place got some of
      [Farver’s] clothes and other th[i]ngs to make it look like
      she ran away.”
   One email describes driving with Farver in Farver’s vehicle,
and then stabbing Farver multiple times in the stomach. This
email states Farver was alive after the stabbing and “begging
for her life” while Golyar spent the “[w]hole t[i]me watch[i]ng
the life drain fr[o]m her body.” Another email described the
yin-yang tattoo on Farver’s left thigh in order to prove “I’m
not lying about offing that crazy bitch.” Two of the emails
refer to covering Farver’s body with a tarp.
   Other evidence in the record corroborates some of the state-
ments made in these emails, including the presence of Farver’s
blood in her vehicle, evidence of Golyar’s obsession with
Kroupa, evidence that Golyar accessed Farver’s home and took
some of her possessions, the existence of the yin-yang tattoo
on Farver’s left hip, and the photographs of tarp found on the
SD card.
   A rational fact finder viewing the evidence in the light
most favorable to the State could conclude the State proved
Golyar killed Farver purposely and with deliberate and pre-
meditated malice. There is no merit to Golyar’s claim that the
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evidence was insufficient to support her conviction for first
degree murder.
                   2. Evidence Was Sufficient
                         to P rove A rson
   [13] Golyar also argues there was insufficient evidence to
support her conviction for second degree arson. As relevant
here, a person commits arson in the second degree if he or she
intentionally damages a building or property contained within a
building by starting a fire or causing an explosion.17
   Here, the evidence clearly established that the August 17,
2013, fire at Golyar’s residence was intentionally set, as inves-
tigators discovered multiple origin sources and evidence that
accelerants were used. On appeal, Golyar argues only that there
was not sufficient evidence to prove she was the arsonist and
that any such evidence was circumstantial.
   [14] It is true the evidence linking Golyar to the arson is
circumstantial, but circumstantial evidence is sufficient to sup-
port a conviction for arson if such evidence and the reason-
able inferences that may be drawn therefrom establish guilt
beyond a reasonable doubt.18 Viewing the evidence in the light
most favorable to the State, a rational finder of fact could
conclude the circumstantial evidence established Golyar was
the arsonist.
   There is no dispute Golyar had access to the property that
was intentionally burned and had a motive to commit the
arson. The arson was part of a pattern of vandalism purport-
edly committed by Farver but ultimately linked to Golyar via
the uncontested digital forensic evidence. These acts of van-
dalism tended to occur at times when Kroupa was becoming
less interested in Golyar and were designed to capitalize on
a mutual fear of Farver and draw Kroupa back. Golyar and
Kroupa had broken off their relationship just before the arson,
and after the arson, they reunited. And, most significantly,

17	
      See Neb. Rev. Stat. § 28-503 (Reissue 2016).
18	
      State v. McDonald, 230 Neb. 85, 430 N.W.2d 282 (1988).
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Golyar, posing as Flora, later confessed to committing the
arson in two emails.
   We conclude the circumstantial evidence and reasonable
inferences therefrom were sufficient to support the arson con-
viction. Golyar’s arguments to the contrary are without merit.
              3. Ineffective Assistance of Counsel
   [15] Golyar claims her trial counsel provided ineffective
assistance in several respects. She is represented on direct
appeal by different counsel than she had during trial. 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 postconvic-
tion proceeding.19
   [16,17] 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 court.20 The fact that an ineffec-
tive assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved.21 The determining
factor is whether the record is sufficient to adequately review
the question.22
   [18,19] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law.23 In reviewing claims of ineffective assistance of counsel

19	
      See State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017).
20	
      Id.
21	
      Id.
22	
      Id.
23	
      State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018); State v. Mora,
      298 Neb. 185, 903 N.W.2d 244 (2017).
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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.24
                     (a) Waiver of Jury Trial
   Golyar claims her trial counsel was ineffective in advising
her to waive her right to a jury trial. The record shows she
waived this right not once, but twice.
   Golyar was originally charged with only first degree murder.
At her arraignment, she entered a plea of not guilty and asked,
on the record, to waive her right to a jury. The court advised
her of the constitutional right to a jury trial and explained the
consequences of waiving such right. Golyar stated that she
understood, and wanted to waive her right to a jury and pro-
ceed with a bench trial. She told the court she had discussed
her desire to waive a jury with her attorney, and she confirmed
that no one had promised her anything or forced or threatened
her in any way to get her to waive a jury trial.
   The State subsequently amended the information to add
the second degree arson charge. At her arraignment on the
amended information, Golyar pled not guilty and again asked
to waive a jury trial. The court again advised her on the record
of her right to a jury trial and the consequences of waiving
such right. Golyar again stated she understood and wished to
waive a jury. She affirmatively stated that she had discussed
her desire to waive a jury with her attorney and that no one had
promised her anything or forced or threatened her in any way
to get her to waive a jury trial.
   [20,21] The decision to waive a jury trial is ultimately and
solely the defendant’s, and, therefore, the defendant must bear
the responsibility for that decision.25 Counsel’s advice to waive
a jury trial can be the source of a valid claim of ineffective

24	
      Id.
25	
      State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2001).
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assistance only when (1) counsel interferes with the client’s
freedom to decide to waive a jury trial or (2) the client can
point to specific advice of counsel so unreasonable as to vitiate
the knowing and intelligent waiver of the right.26
   On appeal, Golyar does not suggest her attorney interfered
with her freedom to decide whether to waive a jury, but con-
tends only that trial counsel “did not adequately advise [her]
regarding her right to a jury trial.”27 It is clear from the record
that she discussed the waiver with her counsel, but beyond
characterizing counsel’s advice on that issue as being inad-
equate, she offers no specifics about the advice counsel gave
or why it was unreasonable. Golyar has thus failed to allege
this claim of ineffective assistance with sufficient particularity.
Moreover, because she concedes the court fully advised her of
the right to a jury trial and the consequences of waiving that
right, the record affirmatively refutes any showing of preju-
dice. This claim of ineffective assistance has no merit.
                       (b) Motion to Sever
   Golyar argues her trial counsel was ineffective for failing to
move, prior to trial, to sever the arson charge from the mur-
der charge. Pursuant to Neb. Rev. Stat. § 29-2002(1) (Reissue
2016):
      Two or more offenses may be charged in the same indict-
      ment, information, or complaint in a separate count for
      each offense if the offenses charged, whether felonies or
      misdemeanors, or both, are of the same or similar charac-
      ter or are based on the same act or transaction or on two
      or more acts or transactions connected together or consti-
      tuting parts of a common scheme or plan.
And pursuant to § 29-2002(3), offenses properly joined
under § 29-2002(1) may be tried separately if the court finds
either the defendant or the State “would be prejudiced by a
joinder.”

26	
      Id.
27	
      Brief for appellant at 33.
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   Golyar argues both that the murder and arson charges were
not properly joinable under § 29-2002(1) and that, even if
they were, the joinder resulted in prejudice to her. She sug-
gests that if her trial counsel had asked, the trial court would
have ordered separate trials. We find the record is sufficient to
review and reject this claim.
   [22] The State’s theory was that the arson was part of
Golyar’s common scheme or plan to cover up Farver’s murder.
As such, the charges were properly joined under § 29-2002(1).
Had trial counsel moved to sever, Golyar would have had the
burden to show compelling, specific, and actual prejudice from
the joinder.28 Prejudice from joinder cannot be shown if evi-
dence of one charge would have been admissible in a separate
trial of another charge.29
   The record demonstrates that if the murder had been charged
separately, evidence of the arson would have been admissible
at that trial. The arson was part of Golyar’s scheme both to
cover up Farver’s murder and to frame Flora for Farver’s mur-
der. There is no merit to this claim of ineffective assistance of
trial counsel.
                      (c) Pretrial Motions
   Golyar argues her trial counsel was ineffective because
he “failed to file any pretrial motions” and “failed to move
to exclude any of the State’s anticipated evidence.”30 Golyar
offers no specifics about what pretrial motions should have
been filed, or what evidence should have been excluded, other
than to remark that counsel did not file a motion to exclude the
photographs found on the memory card depicting flesh-colored
objects with tattoos and the pathologist’s testimony about
decomposition.
   But Golyar concedes, and the record confirms, that trial
counsel made an oral motion to exclude the photograph

28	
      State v. Cotton, supra note 1.
29	
      See id.
30	
      Brief for appellant at 35 (emphasis in original).
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depicting what appears to be a foot with a yin-yang tattoo and
the pathologist’s testimony with respect to that photograph.
In response, the court indicated it would make a determina-
tion on admissibility at the time of trial, after hearing foun-
dational evidence. At trial, Golyar objected to the patholo-
gist’s opinion, arguing the pathologist could not testify with
a reasonable degree of certainty that the photograph was of a
decomposing foot. That objection was overruled. The patholo-
gist then testified the changes in the skin and the coloring in
the photograph were “comparable” or “‘compatible with’” a
decomposing human body.
   The record thus refutes Golyar’s claim that there was no
request to exclude the photograph and the pathologist’s testi-
mony. And to the extent Golyar is attempting to raise claims
that her trial counsel should have filed other pretrial motions
or sought to exclude other evidence, we conclude Golyar has
failed to allege such claims with sufficient particularity.
                      (d) Lack of Objections
   Prior to trial, the State filed a motion in limine seeking a
ruling on the admissibility of evidence regarding Golyar’s
actions relating to property damage, threats, the shooting at the
park, possession of stolen property, and harassment, claiming
it was all inextricably intertwined with the charged crimes or,
alternatively, was admissible rule 404 evidence.31 Trial counsel
initially resisted the motion, and the State offered evidence in
support of admissibility. Before the court ruled on the motion
in limine, the parties agreed that all of the evidence at issue was
admissible either as evidence that was inextricably intertwined
with the charged criminal acts or as evidence of consciousness
of guilt. Golyar argues this was ineffective assistance.
   The record on appeal is sufficient to review and reject this
claim. All of the evidence referenced by Golyar was either
inextricably intertwined with the charged crimes or evidence
of consciousness of guilt, and thus admissible. Trial counsel

31	
      See Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2016).
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could not have performed deficiently by failing to object to
admissible evidence.32
                    (e) Failure to Investigate
   Golyar claims her trial counsel was ineffective for failing to
investigate potential witnesses or alibis. She does not, however,
identify any potential witnesses or alibis or specify what their
testimony would have been.
   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 court.33 We find Golyar’s allega-
tions are not sufficient to raise this claim on direct appeal,
because a potential postconviction court could not identify if
a particular failure to call a witness claim or pursue an alibi
claim was the same one raised on direct appeal.34
                  (f) No Rebuttal of Pathologist
   Golyar claims trial counsel was deficient in not investigat-
ing or calling an expert to rebut the pathologist’s testimony.
We find this assertion is specific enough to raise the claim of
ineffective assistance on direct appeal, but conclude the record
on appeal is insufficient to allow us to resolve it.
                   (g) Advice Not to Testify
  [23-25] Golyar claims her trial counsel was ineffective in
advising her not to testify at the bench trial. A defendant has
a fundamental constitutional right to testify.35 The right to

32	
      See State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017).
33	
      State v. Loding, supra note 19.
34	
      See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
35	
      U.S. Const. amend VI; State v. Johnson, 298 Neb. 491, 904 N.W.2d 714
      (2017).
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testify is personal to the defendant and cannot be waived by
defense counsel’s acting alone.36 Defense counsel bears the
primary responsibility for advising a defendant of his or her
right to testify or not to testify, of the strategic implications of
each choice, and that the choice is ultimately for the defendant
to make.37
   [26] Defense counsel’s advice to waive the right to testify
can present a valid claim of ineffective assistance of coun-
sel in two instances: (1) if the defendant shows that counsel
interfered with his or her freedom to decide to testify or (2) if
counsel’s tactical advice to waive the right was unreasonable.38
Golyar does not claim trial counsel interfered with her free-
dom to decide whether to testify. Instead, she claims counsel
“failed to advise [her] adequately.”39 She argues she had no
prior criminal record and thus there was no risk of having that
used against her if she testified. She also contends that by not
testifying, she was denied the opportunity to explain her mul-
tiple instances of harassing and impersonating others. But she
makes no allegations as to how counsel deficiently advised her
regarding these matters or how his advice not to testify was
unreasonable. As such, she has failed to allege deficient per-
formance with enough particularity and has not properly raised
this claim on direct appeal.
                     (h) Mixing Up Names
   Finally, Golyar claims her counsel was “so unprepared and
unfamiliar with the issues”40 that he often used the wrong
names when referring to Golyar and Farver. A review of
the record shows counsel did slip up at times, and at least
twice called Farver by the wrong name. But it is also true

36	
      State v. Johnson, supra note 35.
37	
      See id.
38	
      Id.
39	
      Brief for appellant at 38.
40	
      Id.
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that throughout the 10-day bench trial, a myriad of names
and personas were introduced and discussed. A review of the
record, in context, shows counsel’s use of the wrong name
was infrequent and inadvertent. Moreover, Golyar does not
contend, and the record does not suggest, that the court or the
issues were confused by counsel’s occasional reference to the
wrong name.
   We conclude this claim has been sufficiently raised, and
the record on appeal is adequate for us review it. We fur-
ther conclude the record refutes this claim of ineffective
assistance.
                     V. CONCLUSION
  For the foregoing reasons, we affirm the convictions and
sentences.
                                               A ffirmed.
  Miller-Lerman, J., not participating.
