                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                        STATE V. BALVIN


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                  STATE OF NEBRASKA, APPELLEE,
                                               V.
                                  SONNY D. BALVIN, APPELLANT.


                              Filed July 15, 2014.   No. A-13-529.


       Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.
Affirmed.
       Sonny D. Balvin, pro se.
       Jon Bruning, Attorney General, and George R. Love for appellee.


       INBODY, Chief Judge, and IRWIN and BISHOP, Judges.
       IRWIN, Judge.
                                      I. INTRODUCTION
        This is a postconviction appeal. In 2009, Sonny D. Balvin was convicted by a jury of first
degree sexual assault. As a result of his conviction, he was sentenced to 24 to 36 years’
imprisonment. In addition, the trial court found that the offense was aggravated and justified the
imposition of lifetime community supervision after Balvin’s release from prison.
        On direct appeal, this court affirmed Balvin’s conviction, but reversed his sentence and
remanded the case back to the district court in order for a jury to make a finding concerning
whether Balvin’s offense was aggravated and, thus, made him subject to the imposition of
lifetime community supervision. State v. Balvin, 18 Neb. App. 690, 791 N.W.2d 352 (2010)
(Balvin I). On remand, the district court amended the previously imposed sentence by removing
the imposition of lifetime community supervision. Balvin remained sentenced to 24 to 36 years’
imprisonment. Balvin appealed from the amended sentencing order. This court affirmed the
sentence. State v. Balvin, No. A-11-244, 2011 WL 6251088 (Neb. App. Dec. 13, 2011) (selected
for posting to court Web site) (Balvin II).


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        Balvin now appeals the district court’s dismissal of all of his claims for postconviction
relief without an evidentiary hearing. For the reasons set forth below, we affirm the district
court’s decision to deny Balvin an evidentiary hearing for all of his postconviction allegations.
                                       II. BACKGROUND
        The following summary of the original criminal proceedings against Balvin is taken
directly from our opinion in Balvin I:
                The State filed a criminal complaint charging Balvin with first degree sexual
        assault pursuant to Neb. Rev. Stat. § 28-319 (Reissue 2008). The charge against Balvin
        stems from an incident which occurred in March 2009. Evidence adduced at trial revealed
        that on the night of March 9, 2009, Balvin offered a ride to A.R., who had been walking
        from a friend’s house to the home of her cousin. She and Balvin proceeded to drive to a
        liquor store where Balvin bought bottles of beer. They continued to drive around the city
        of Lincoln, Nebraska, drinking beer and talking. Eventually, Balvin drove to a secluded,
        rural area, where he parked his car on the side of a dirt road.
                The events that transpired after Balvin parked the car on the side of the road were
        disputed at trial. A.R. testified that Balvin asked her to have sex with him. When she told
        him that she did not want to, he told her that she was either “going to give it to him or he
        was going to take it.” He then lunged toward her. She testified that she was scared and
        unable to run away because there was nowhere to go. She testified that she had no choice
        but to do what he asked of her. A.R. testified that Balvin forced her to engage in
        numerous sexual acts. She testified that after approximately 45 minutes, Balvin drove her
        to her cousin’s house. When she arrived, she told her cousin what happened and called
        the police.
                Balvin did not testify at trial, nor did he offer any evidence in his defense.
        However, throughout the cross-examination of the State’s witnesses and during closing
        arguments, Balvin’s trial counsel indicated that Balvin did not dispute that he and A.R.
        engaged in sexual intercourse on the night in question. Balvin contended that he had
        picked up A.R. on March 9, 2009, because she was a prostitute. He argued that A.R.
        consented to having sexual intercourse with him and reported a sexual assault to the
        police only because Balvin refused to pay her after the incident.
                After hearing all of the evidence, the jury convicted Balvin of first degree sexual
        assault. The district court subsequently sentenced Balvin to 24 to 36 years’ imprisonment.
18 Neb. App. at 693-94, 791 N.W.2d at 360-61.
        As we discussed above, Balvin appealed from his conviction and sentence. See Balvin I.
By the time of this appeal, Balvin had different counsel than his trial attorney. In his appellate
brief, Balvin alleged, among other things, that his trial counsel had been ineffective in numerous
respects. Upon our review, we concluded that the record was insufficient to review the majority
of Balvin’s claims of ineffective assistance of counsel. However, we specifically found that
Balvin was not denied effective assistance of counsel when substitute counsel appeared on
Balvin’s behalf during a pretrial hearing, when counsel failed to refresh A.R.’s memory about a
prior false report that she had been sexually assaulted, when counsel made a motion to dismiss at
the close of the evidence, or when counsel failed to object to the State’s closing argument.


                                               -2-
        In August 2012, Balvin filed a pro se motion for postconviction relief. The motion
alleged that Balvin’s trial counsel and his appellate counsel were ineffective in numerous
respects. Specifically, the motion alleged that trial counsel was ineffective in failing to call
certain witnesses to testify about A.R.’s prior false report of sexual assault; failing to make a
hearsay objection during certain testimony of Tiffany Blaker, Balvin’s fiance at the time of the
incident; failing to call Balvin’s mother to testify as a witness in order to rebut the assertions
made by Blaker; and failing to properly impeach Blaker’s testimony.
        In addition to these allegations, the postconviction motion alleged that Balvin’s appellate
counsel was ineffective in failing to raise the following issues on direct appeal: the admissibility
of testimony about Balvin’s sexual relationship with Blaker, the admissibility of letters written
by Balvin while he was awaiting trial; trial counsel’s ineffectiveness in failing to call certain
witnesses to testify about A.R.’s prior false report of sexual assault, and trial counsel’s
ineffectiveness in failing to make a hearsay objection during certain portions of Blaker’s
testimony.
        The district court denied Balvin’s motion without an evidentiary hearing. In its order, the
court stated:
        [Balvin’s] rights under the United States and Nebraska Constitutions were neither denied
        nor infringed so as to render his conviction void or voidable. . . . The records and files in
        this case clearly show [Balvin] is entitled to no relief. Therefore, it is the conclusion of
        the court that [Balvin’s] motion for postconviction relief should be overruled and denied.
        Balvin appeals.
                                 III. ASSIGNMENT OF ERROR
       On appeal, Balvin alleges, restated and consolidated, that the district court erred in
denying his motion for postconviction relief without an evidentiary hearing.
                                  IV. STANDARD OF REVIEW
        In appeals from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirmatively show that the defendant is
entitled to no relief. State v. Branch, 286 Neb. 83, 834 N.W.2d 604 (2013).
        A claim that defense counsel provided ineffective assistance presents a mixed question of
law and fact. State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012). When reviewing a claim of
ineffective assistance of counsel, an appellate court reviews the factual findings of the lower
court for clear error. Id. With regard to the questions of counsel’s performance or prejudice to the
defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations
independently of the lower court’s decision. State v. Golka, 281 Neb. 360, 796 N.W.2d 198
(2011).
                                          V. ANALYSIS
       Balvin appeals the district court’s decision to deny his motion for postconviction relief
without an evidentiary hearing. An evidentiary hearing on a motion for postconviction relief is


                                                -3-
required on an appropriate motion containing factual allegations which, if proved, constitute an
infringement of the movant’s rights under the Nebraska or federal Constitution, causing the
judgment against the defendant to be void or voidable. State v. Branch, supra. An evidentiary
hearing is not required when the motion alleges only conclusions of fact or law. Id. If the
defendant makes sufficient allegations of a constitutional violation which would render the
judgment void or voidable, an evidentiary hearing may be denied only when the records and files
affirmatively show that the defendant is entitled to no relief. Id.
        In his brief on appeal, Balvin has narrowed his postconviction claims to two allegations
of ineffective assistance of trial counsel and five allegations of ineffective assistance of appellate
counsel. Specifically, he alleges that trial counsel was ineffective in (1) failing to adequately
argue that pertinent statutory and case law permitted the use of extrinsic evidence to prove
A.R.’s prior false statement of sexual assault and (2) failing to call the police officer who took
A.R.’s prior false statement to testify at trial.
        Balvin also alleges that appellate counsel was ineffective in failing to raise on direct
appeal certain claims of ineffective assistance of trial counsel and certain assertions regarding
erroneous evidentiary rulings made by the trial court. Specifically, he alleges that his appellate
counsel should have raised the following issues on direct appeal: (1) trial counsel was ineffective
in not calling the police officer who took A.R.’s prior false statement to testify at trial; (2) trial
counsel was ineffective in failing to properly object to Blaker’s testimony concerning a
telephone call between herself, Balvin, and Balvin’s mother; (3) the trial court erred in
overruling an “original writing objection” to Blaker’s testimony about the telephone call; (4) the
trial court erred in admitting into evidence letters written by Balvin while he was awaiting trial;
and (5) the trial court erred in permitting Blaker to testify about her and Balvin’s physical
relationship.
                                    1. INEFFECTIVE ASSISTANCE
                                         OF TRIAL COUNSEL

        Balvin’s allegations that he received ineffective assistance of trial counsel are
procedurally barred. A motion for postconviction relief cannot be used to secure review of issues
that were known to the defendant and could have been litigated on direct appeal. State v. Hessler,
282 Neb. 935, 807 N.W.2d 504 (2011). Balvin was represented by different counsel than his trial
attorney on direct appeal. And, while he did raise some allegations of ineffective assistance of
trial counsel in his direct appeal, he did not specifically assert that his trial counsel was
ineffective either in failing to adequately argue that pertinent statutory and case law permitted the
use of extrinsic evidence to prove A.R.’s prior false statement of sexual assault or in failing to
call the police officer who took A.R.’s prior false statement to testify at trial, as he now asserts in
this appeal. Because he did not raise these issues in his direct appeal, he is now procedurally
barred from raising the issues.
        Moreover, we must note that Balvin’s assertion that his trial counsel was ineffective in
failing to adequately argue that pertinent statutory and case law permitted the use of extrinsic
evidence to prove A.R.’s prior false statement of sexual assault was not raised in his
postconviction motion submitted to the district court. As a result, this assertion, in addition to
being procedurally barred, is also not properly before this court for consideration. See State v.


                                                 -4-
Caddy, 262 Neb. 38, 628 N.W.2d 251 (2001) (holding that appellate court will not consider as
assignment of error question not presented to district court for disposition through defendant’s
motion for postconviction relief).
        We conclude that the district court did not err in denying Balvin an evidentiary hearing as
to his allegations of ineffective assistance of trial counsel.
                                     2. INEFFECTIVE ASSISTANCE
                                       OF APPELLATE COUNSEL

         When analyzing a claim of ineffective assistance of appellate counsel, courts usually
begin by determining whether appellate counsel failed to bring a claim on appeal that actually
prejudiced the defendant. State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011). Appellate
counsel’s failure to raise an issue on appeal could be ineffective assistance only if there is a
reasonable probability that inclusion of the issue would have changed the result of the appeal. Id.
When, as here, the case presents layered ineffectiveness claims, we determine the prejudice
prong of appellate counsel’s performance by focusing on whether trial counsel was ineffective
under the Strickland test. State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
         Under the Strickland test, the defendant has the burden to show that counsel’s
performance was deficient and that counsel’s deficient performance prejudiced the defendant.
State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). The two prongs of the ineffective
assistance of counsel test, deficient performance and prejudice, may be addressed in either order.
State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011).
         When considering whether trial counsel’s performance was deficient, there is a strong
presumption that counsel acted reasonably. State v. Nesbitt, 279 Neb. 355, 777 N.W.2d 821
(2010). Furthermore, trial counsel is afforded due deference to formulate trial strategy and
tactics. Id. To show prejudice, the defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding would have been different. State
v. McGhee, supra.
         We now turn to Balvin’s specific allegations of ineffective assistance of appellate
counsel.
                                    (a) A.R.’s Prior False Report
                                          of Sexual Assault
          Prior to trial, the State filed a motion in limine seeking to preclude Balvin from offering
evidence that A.R. allegedly had previously made a false report that she had been sexually
assaulted. This previous false report occurred approximately 11 years prior to trial, when A.R.
was 10 years old. The district court granted the State’s motion, but indicated that it would revisit
the issue prior to A.R.’s testimony at trial.
          Just prior to A.R.’s testifying at trial, the court indicated, “I’m inclined to allow [Balvin’s
counsel] to inquire into whether [A.R.] had made such an allegation and that it turned out it was
not true . . . .” The court later clarified its ruling by informing counsel, “[I]f you ask [A.R.] if she
has made a prior allegation of attempted sexual contact when she was ten years old and she says,
no, . . . that ends it.”




                                                  -5-
        During Balvin’s cross-examination of A.R., counsel asked her, “[A]s we sit here today,
do you recall that you reported that you had been sexually assaulted during that incident?” A.R.
responded that she did not remember such a report. Counsel was not permitted to ask further
questions regarding the prior false report in the presence of the jury, and counsel was not
permitted to submit into evidence a copy of the police report regarding A.R.’s previous
allegation of sexual assault.
        In his direct appeal, Balvin alleged that the district court erred in prohibiting him from
submitting evidence concerning the prior false report during his cross-examination of A.R. Upon
our review, we concluded that the district court did not abuse its discretion in excluding evidence
of the prior false report. Balvin I. In coming to this conclusion, we relied on Neb. Evid. R.
608(2), Neb. Rev. Stat. § 27-608(2) (Reissue 2008). That rule provides as follows:
        Specific instances of the conduct of a witness, for the purpose of attacking or supporting
        his credibility, other than conviction of crime as provided in section 27-609, may not be
        proved by extrinsic evidence. They may, however, in the discretion of the court, if
        probative of truthfulness or untruthfulness be inquired into on cross-examination of the
        witness (a) concerning his character for truthfulness or untruthfulness, or (b) concerning
        the character for truthfulness or untruthfulness of another witness as to which character
        the witness being cross-examined has testified.
Based on the language of rule 608(2), we held that the district court did not err in prohibiting
counsel from further questioning A.R. about the prior false report after she indicated she did not
remember or in failing to admit into evidence copies of the police report regarding the prior false
report. Balvin I. The police report was extrinsic evidence which related only to A.R.’s credibility.
        In his motion for postconviction relief and in this appeal, Balvin alleges that his appellate
counsel was ineffective for failing to raise on direct appeal the claim that his trial counsel was
ineffective in not calling the police officer who authored the police report regarding A.R.’s prior
sexual assault report to testify. In his brief on appeal, Balvin specifically claims, “The law was
clearly established allowing [the police officer] to testify regarding his interviews and
investigative reports concluding [A.R.] had made prior false allegations of being sexually
assaulted.” Brief for appellant at 26. Balvin’s assertion has no merit.
        As we explained in Balvin I, rule 608(2) explicitly prohibits the use of extrinsic evidence
to prove specific instances of conduct which relate only to the credibility of a witness. Balvin
alleges that his trial counsel was ineffective in failing to call a witness to testify about A.R.’s
alleged prior false report of sexual assault and, thus, about A.R.’s lack of credibility concerning
her current report of sexual assault. Stated another way, Balvin alleges that his trial counsel was
ineffective for failing to offer extrinsic evidence to prove a specific instance of A.R.’s conduct
which related only to A.R.’s credibility. Such evidence is clearly not admissible pursuant to rule
608(2). Just as the police report regarding the prior false report was considered extrinsic
evidence and was not admissible, testimony from a witness about that report is also extrinsic
evidence and is not admissible.
        Accordingly, Balvin’s trial counsel’s performance was not deficient when he failed to
offer the testimony of the police officer. Such offer would not have been successful pursuant to
the language of rule 608(2). Because any offer of the testimony of the police officer would not



                                                -6-
have been successful, Balvin’s appellate counsel was not deficient in failing to raise this issue in
his direct appeal.
                              (b) Admissibility of Recordings From
                                   Jailhouse Telephone Calls
         At trial, one of the State’s key witnesses was Blaker, Balvin’s fiance at the time of the
sexual assault. Sometime after Balvin was arrested, Blaker ended her relationship with Balvin.
However, prior to the end of their relationship, Balvin telephoned Blaker from jail on numerous
occasions. These telephone conversations were recorded by jail personnel. During Blaker’s
testimony, the State offered into evidence a recording of six of the telephone conversations
between Balvin and Blaker. Before any of the recordings were played for the jury, Balvin’s
counsel objected generally to the admission of the recordings, arguing, “I believe the CD in
question does contain hearsay and does contain statements other than that of . . . Balvin.” The
district court overruled the objection.
         During the second telephone conversation played for the jury, Blaker telephoned Balvin’s
mother on another telephone line so that Blaker was able to talk to both Balvin and his mother.
Blaker then relayed to Balvin his mother’s questions and comments. As a part of this dialog,
Tiffany told Balvin that his mother wanted to know whether the girl he picked up on the night in
question was a prostitute who was angry that she did not get paid. Balvin responded, “That is
really close.” Balvin did not make any objections at the time this recording was played for the
jury.
         After the second telephone conversation was played for the jury, the State questioned
Blaker about the content of the recording as follows:
                 Q: And you are trying to relay what [Balvin’s mother] says to . . . Balvin, her son?
                 A: Yes.
                 Q: And it was [his mother] that brought up the possibility that he had picked up a
         prostitute.
                 A: Yes.
After this line of questioning, Balvin’s trial counsel objected to the form of the question, because
counsel did not “think that’s what was said” on the recording and because “the tape speaks for
itself.” The court overruled the objection.
         In Balvin’s direct appeal, his appellate counsel challenged the admissibility of Blaker’s
testimony about the substance of the telephone conversation between herself, Balvin, and
Balvin’s mother. Counsel alleged that such testimony included inadmissible hearsay statements,
including Blaker’s statement that Balvin’s mother was the one who initially suggested to Balvin
his defense that A.R. was a prostitute. In Balvin I, we found that Balvin’s assertion concerning
Blaker’s testimony about the telephone conversation was not preserved for our review because
Balvin’s trial counsel did not make a hearsay objection during Blaker’s testimony.
         In his postconviction motion and in this appeal, Balvin now alleges that his appellate
counsel was ineffective in failing to assign as error his trial counsel’s ineffectiveness in not
objecting to Blaker’s testimony about the telephone call as hearsay. We conclude that Balvin’s
assertion that his appellate counsel was ineffective does not have merit.



                                                -7-
         First, Blaker’s testimony about the substance of the conversation between herself, Balvin,
and Balvin’s mother was not hearsay. Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue
2008), defines hearsay as “a statement other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Here, Blaker’s
testimony that Balvin’s mother suggested that A.R. was a prostitute was not offered for the truth
of the matter asserted. Stated another way, the State was not trying to prove the truth of the
statement, that A.R. was a prostitute, but, rather, it was simply trying to demonstrate the fact that
Balvin’s mother made such a statement and the effect that the statement had on Balvin. Because
Blaker’s testimony was not hearsay, an objection to that testimony on the basis of hearsay would
not have been successful. Accordingly, even if Balvin’s appellate counsel had argued on appeal
that trial counsel was ineffective for failing to make a hearsay objection, this argument would not
have been successful. Balvin’s appellate counsel was not ineffective in this regard.
         Second, we must note that the jury heard the recording of the telephone conversation
between Blaker, Balvin, and Balvin’s mother. As such, they heard Blaker ask Balvin all of his
mother’s questions, including the question about A.R.’s being a prostitute. Blaker’s testimony on
this subject was, as a result, cumulative in nature, and any error in its admission would have been
harmless.
         Balvin’s appellate counsel was not ineffective in failing to raise on direct appeal the issue
of trial counsel’s ineffectiveness in not making a hearsay objection during Blaker’s testimony
about the telephone call. The assertion would not have been successful because Blaker’s
testimony was not hearsay and was cumulative to the actual recording of the telephone calls.
         In this appeal, Balvin also asserts that his appellate counsel was ineffective in failing to
raise, on direct appeal, the district court’s overruling of trial counsel’s “original writing
objection” to Blaker’s testimony about the telephone conversation. However, Balvin did not raise
this issue in his postconviction motion, and as such, this issue is not properly before us. See State
v. Caddy, 262 Neb. 38, 628 N.W.2d 251 (2001).
                                    (c) Admissibility of Letters
                                         Written From Jail
         At trial, the State offered into evidence excerpts from letters written by Balvin to Blaker,
while he was in jail awaiting trial. Balvin’s trial counsel objected to the admission of these
letters, arguing that the letters contained hearsay and that they were not relevant. The district
court overruled Balvin’s objections and admitted the letters into evidence. Copies of the letters
were provided to each juror, and the members of the jury were given time to read the content of
all the letters.
         In his direct appeal, Balvin did not raise the issue of the admissibility of these letters.
However, in his motion for postconviction relief and in this appeal, Balvin asserts that his
appellate counsel was ineffective for failing to raise this issue in his direct appeal, because the
letters should not have been admitted into evidence because they contained hearsay and were not
relevant. He also asserts that the erroneous admission of the letters prejudiced his defense. Upon
our review, we conclude that Balvin’s assertions have no merit.
         The letters did not contain hearsay. They were authored entirely by Balvin, and pursuant
to rule 801(4) of the Nebraska Evidence Rules, a party’s own statement is not hearsay when it is


                                                -8-
offered against him at trial. Rule 801(4) states, in relevant part, “A statement is not hearsay if . . .
[t]he statement is offered against a party and is . . . his own statement, in either his individual or a
representative capacity . . . .” Blaker’s testimony about the letters clearly indicated that the letters
were in Balvin’s handwriting and that they had been authored entirely by him.
        Having found that the letters were not hearsay, we next turn to Balvin’s assertion that the
letters were inadmissible because they were not relevant. The exercise of judicial discretion is
implicit in determining the relevance of evidence. State v. Draganescu, 276 Neb. 448, 755
N.W.2d 57 (2008). Evidence must be relevant to be admissible. See State v. Merrill, 252 Neb.
736, 566 N.W.2d 742 (1997). Evidence is relevant if it has any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence. See id.
        In his brief to this court, Balvin asserts that the letters:
        [D]emonstrated only general feelings of remorse and discussion of legitimate
        development of his defense. The letters in no way constituted direct assertions regarding
        any material facts or admissions of guilt, nor did they provide a basis for any reasonable
        inferences in that regard.
Brief for appellant at 33. We have reviewed the letters in their entirety, and we must disagree
with Balvin’s characterization of the substance of the letters.
        First, the letters contain repeated instances of Balvin’s apologizing to Blaker for what he
has done and how he has hurt her and their relationship. Specifically, Balvin stated at various
points in the letter, “I did a terrible thing to us”; “it was a mistake . . . people will never look at
me the same again no matter what”; and “I ask myself, everyday why? How could I do this?” In
addition, he told Blaker, “No more will I do anything to losse [sic] our freedom or to get in
trouble.” While these statements could be read to refer only to Balvin’s guilt for cheating on
Blaker with A.R., as he suggested during his criminal trial, the statements could also be read to
evidence a consciousness of guilt on Balvin’s part for his sexual assault on A.R. In addition,
Balvin appears to admit some remorse for his actions. Ultimately, these statements are relevant
because the inferences that can be drawn from them are indicative of Balvin’s guilt.
        In addition to Balvin’s statements of guilt and remorse, the letters also contain directions
to Blaker about how to testify at a deposition concerning Balvin’s criminal charges. He tells
Blaker what to say and then informs her that “if everybody story’s [sic] are the same it looks
good.” He also tells her, “I hope you stick up for me like we talked about how good I was to you
and our Relationship [sic].” These statements could be read to indicate that Balvin was trying to
create an effective defense to the criminal charges through Blaker’s testimony. As a result, these
statements are relevant to disprove Balvin’s assertions about what happened with A.R. on the
night in question.
        Because the letters contained only Balvin’s own statements and were relevant to a
determination of Balvin’s guilt, the district court’s admission of the letters was not error. And,
similarly, Balvin’s appellate counsel was not ineffective in failing to raise this issue in Balvin’s
direct appeal, because counsel’s arguments that the letters were inadmissible because they
contained hearsay and were not relevant would not have been successful.




                                                 -9-
        In his brief on appeal, Balvin also asserts that his appellate counsel was ineffective in
failing to raise on direct appeal the admissibility of Blaker’s testimony about the letters.
However, Balvin did not raise this issue in his postconviction motion, and as such, this issue is
not properly before us. See State v. Caddy, 262 Neb. 38, 628 N.W.2d 251 (2001).
                                (d) Testimony Concerning Balvin’s
                                     Relationship With Fiance
        During Blaker’s direct examination by the State, the prosecutor asked her about her and
Balvin’s physical relationship in the weeks and months prior to the night of A.R.’s sexual
assault. Blaker testified that during this timeframe, her relationship with Balvin was generally
“good,” but that she and Balvin had not engaged in sexual relations for about 2 weeks prior to
the night of the assault. She also testified that throughout their relationship, she and Balvin did
not engage in sexual relations “very often.” Balvin’s counsel objected to the prosecutor’s line of
questioning, arguing that it was not relevant. The court overruled the objection and permitted
Blaker’s testimony.
        During defense counsel’s cross-examination of Blaker, he attempted to clarify her
testimony about her and Balvin’s physical relationship. During this cross-examination, Blaker
described her “sex life with [Balvin] as normal.” She also stated that it was not unusual for them
to not engage in sexual relations for a couple of weeks at a time.
         In his direct appeal, Balvin did not argue that the district court erred in permitting Blaker
to testify about her and Balvin’s physical relationship. However, in his postconviction motion
and in this appeal, Balvin alleges that his appellate counsel was ineffective in failing to raise this
issue in his direct appeal because the testimony should not have been admitted into evidence as it
was not relevant. He also asserts that the erroneous admission of the testimony prejudiced his
defense. Upon our review, we conclude that Balvin’s assertions have no merit.
         At trial, the State suggested that Balvin’s motive to commit the sexual assault, in part,
was his lack of a physical relationship with Blaker. As such, Blaker’s testimony about her and
Balvin’s physical relationship was relevant to demonstrating Balvin’s motive. Moreover, we
must note that even if Blaker’s testimony on this subject was not relevant, it is not at all clear
how Balvin was prejudiced by the testimony. When we read Blaker’s testimony in its entirety,
we understand her testimony to be that she and Balvin had a good relationship and that their
physical relationship was fairly normal. Although they had not engaged in sexual relations in the
weeks prior to the sexual assault of A.R., this was apparently not unusual for them. Blaker’s
testimony did not demonstrate anything abnormal about her and Balvin’s relationship which
would have driven him to commit a sexual assault.
         Because Blaker’s testimony about her and Balvin’s physical relationship was relevant to
prove the State’s theory about motive and because Balvin cannot show prejudice as a result of
the testimony, his appellate counsel was not ineffective in failing to raise the admissibility of
such testimony on direct appeal. Any challenge to this testimony would have ultimately been
unsuccessful.




                                                - 10 -
                                       VI. CONCLUSION
        We affirm the district court’s denial of Balvin’s motion for postconviction relief without
an evidentiary hearing. Balvin’s claims that his trial counsel was ineffective are procedurally
barred. And, the files and records affirmatively show that he is entitled to no relief on his claims
of ineffective assistance of appellate counsel.
                                                                                         AFFIRMED.




                                               - 11 -
