Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/19/2019 08:07 AM CDT




                                                         - 202 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                                  STATE v. HUSTON
                                                  Cite as 302 Neb. 202




                                        State of Nebraska, appellee, v.
                                         Dallas L. Huston, appellant.
                                                    ___ N.W.2d ___

                                         Filed February 8, 2019.   No. S-18-145.

                1.	 Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
                    dentiary hearing on a motion for postconviction relief, the trial judge, as
                    the trier of fact, resolves conflicts in the evidence and questions of fact.
                    An appellate court upholds the trial court’s factual findings unless they
                    are clearly erroneous.
                2.	 Effectiveness of Counsel. A claim that defense counsel provided inef-
                    fective assistance presents a mixed question of law and fact.
                3.	 Effectiveness of Counsel: Appeal and Error. When reviewing a
                    claim of ineffective assistance of counsel, an appellate court reviews
                    the factual findings of the lower court for clear error. With regard to
                    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
                    conclusion.
                4.	 Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
                    Error. To prevail on a claim of ineffective assistance of counsel under
                    Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
                    674 (1984), the defendant must show that his or her counsel’s perform­
                    ance was deficient and that this deficient performance actually preju-
                    diced the defendant’s defense. To show prejudice under the prejudice
                    component of the Strickland test, the defendant must demonstrate a rea-
                    sonable probability that but for his or her counsel’s deficient perform­
                    ance, the result of the proceeding would have been different. A reason-
                    able probability does not require that it be more likely than not that
                    the deficient performance altered the outcome of the case; rather, the
                    defendant must show a probability sufficient to undermine confidence in
                    the outcome.
                                   - 203 -
             Nebraska Supreme Court A dvance Sheets
                     302 Nebraska R eports
                             STATE v. HUSTON
                             Cite as 302 Neb. 202

 5.	 Effectiveness of Counsel: Proof. The two prongs of the ineffective
     assistance of counsel test under Strickland v. Washington, 466 U.S.
     668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed in
     either order.
 6.	 Evidence: Words and Phrases. Unfair prejudice speaks to the capac-
     ity of some concededly relevant evidence to lure the fact finder into
     declaring guilt on a ground different from proof specific to the offense
     charged, commonly on an emotional basis.
 7.	 Rules of Evidence: Police Officers and Sheriffs. Statements made by
     law enforcement in the course of interviewing suspects may be admis-
     sible for the purpose of providing necessary context to a defendant’s
     statements in the interview which are themselves admissible.
 8.	 ____: ____. In order to determine whether a statement made by law
     enforcement is admissible to provide context, the probative value of the
     statements of both the defendant and the officer must be assessed.

  Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.

   Timothy S. Noerrlinger for appellant.

   Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.

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

   Papik, J.
   Dallas L. Huston was convicted by a jury of second degree
murder and sentenced to 50 years’ to life imprisonment.
We affirmed his conviction and sentence on direct appeal.
See State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013)
(Huston I). After Huston’s motion for postconviction relief
was denied without an evidentiary hearing, we affirmed in
part. See State v. Huston, 291 Neb. 708, 868 N.W.2d 766
(2015) (Huston II). However, with respect to claims that
Huston’s trial counsel was ineffective for failing to properly
object to the admission of certain portions of recorded inter-
views between Huston and police, we reversed, and remanded
                              - 204 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. HUSTON
                        Cite as 302 Neb. 202

for an evidentiary hearing. The case returns to us now after the
district court held an evidentiary hearing and denied Huston’s
motion for postconviction relief. We affirm.

                       BACKGROUND
   We provided a full recitation of the facts regarding this case
in Huston I. We summarize facts relevant to this appeal in the
sections below.

Investigation of Ryan Johnson’s Death.
   Huston and Ryan Johnson “were living together as a couple
in a nonsexual relationship” at the time of Johnson’s death.
Huston I, 285 Neb. at 12, 824 N.W.2d at 728. In September
2009, Huston called the 911 emergency dispatch service, claim-
ing that he had walked into the room he and Johnson shared
and found Johnson wrapped in a blanket with plastic wrap
covering his face. Paramedics performed lifesaving measures
but were unable to revive Johnson.
   Police later began to investigate whether Huston was respon-
sible for Johnson’s death. Police received information that
Huston had told Nicholas Berghuis and Christopher Wilson,
friends of Johnson and Huston, that one of Huston’s “per-
sonalities” had played a role in Johnson’s death by wrap-
ping Johnson’s face in plastic wrap and putting a pillow over
Johnson’s face as Johnson tried to breathe. Id. at 13, 824
N.W.2d at 728. While Huston purported to make statements
and to have performed actions as a different personality, he
later admitted that he did not have multiple personality dis­
order, that he made up all of the different personalities as part
of a “‘social experiment,’” and that “he controlled them com-
pletely.” Id.
   Berghuis and Wilson agreed to cooperate with police in
an attempt to conduct surveillance on Huston. On October 6
and 7, 2009, Berghuis and Wilson invited Huston to Wilson’s
apartment, where a camera was concealed. On the first night,
Wilson wore a wire, and on the second, Berghuis did. Police
                               - 205 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                         STATE v. HUSTON
                         Cite as 302 Neb. 202

monitored the audio and video surveillance in unmarked cars
near the residence. On the second night, Huston, purporting to
act as one of his personalities, admitted that on the morning
of Johnson’s death, he wrapped Johnson in a blanket; wrapped
plastic wrap around Johnson’s face; and, as Johnson broke
through the plastic wrap and opened his mouth, held a pillow
over his head and listened to Johnson’s last heartbeats “‘with
enjoyment.’” Id. at 14, 824 N.W.2d at 728.
   Police questioned Huston later in the evening of October 7,
2009. Huston initially denied involvement in Johnson’s death.
He then began to discuss a dream he had been having in which
one of his personalities sat on top of Johnson, wrapped plastic
wrap around Johnson’s face, and suffocated Johnson with a
pillow after Johnson broke through the plastic wrap. Later in
the same interview, Huston admitted that the events were not a
dream and that he physically aided in Johnson’s death.
   In an interview the next day, Huston first tried to retract these
statements. Later, however, Huston stated that he was tired of
fighting and that Johnson’s death had occurred just as Huston
had told Berghuis: Johnson was wrapped tightly in a blanket
with his hands in his pockets, Huston wrapped Johnson’s face
with plastic wrap, and Huston covered Johnson’s face with a
pillow to make sure he died.
   In an October 10, 2009, interview, Huston made additional
statements about Johnson’s death. Huston said that he has
a morbid fascination with death, that he has urges to kill
those to whom he is sexually attracted, and that Johnson and
Wilson helped him deal with those urges by role playing in
mock death performances. Huston said that Johnson used
Huston’s urges against him to convince Huston to help him
commit suicide. Huston discussed the way he felt after put-
ting a pillow over Johnson’s face as Johnson tried to breathe,
explaining that it did not provide the feeling he had expected.
Huston also stated that he had fought his urges for most of
his life and that he feared he might hurt someone else in
the future.
                              - 206 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. HUSTON
                        Cite as 302 Neb. 202

  Huston was ultimately arrested and charged with second
degree murder. Huston pleaded not guilty, and the case pro-
ceeded to trial.

Trial.
   At trial, Wilson and Berghuis testified about the statements
Huston made to them concerning his role in Johnson’s death.
Wilson testified that he and Huston engaged in role playing in
which Huston, acting as one of his personalities, would pretend
to kill Wilson. Wilson also testified that Huston, purporting to
act as one of Huston’s personalities, had told Wilson approxi-
mately 6 months prior to Johnson’s death that Johnson might
die soon and that Huston would need somebody “to be there
for him.”
   In addition, the State introduced the surveillance video and
recordings of numerous interviews between Huston and police.
The recordings included the statements from Huston summa-
rized above, as well as several exchanges at issue in this appeal
that are discussed further in the analysis section below.
   The State also introduced a video found on Huston’s com-
puter. The video was filmed several weeks after Johnson had
attempted suicide in March 2009. In the video, Huston pretends
to kill Johnson by suffocating him with a pillow. The State also
called a forensic pathologist who testified to his opinion that
the cause of Johnson’s death was suffocation.
   Huston testified in his own defense. He disavowed his ear-
lier statements admitting to restraining Johnson and suffocating
him with a pillow. Huston claimed that he did not remember
having any involvement in Johnson’s death, but that he came to
believe dreams he had been having to that effect. Huston testi-
fied that upon having the opportunity to review police reports
after his confessions, he determined that he had not done what
he had previously admitted doing. He testified that he had no
involvement in Johnson’s death and that Johnson must have
wrapped himself in a blanket and covered his own face with
plastic wrap.
                              - 207 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. HUSTON
                        Cite as 302 Neb. 202

  The jury found Huston guilty of second degree murder.
Huston was sentenced to 50 years’ to life imprisonment.

Direct Appeal.
   On direct appeal, Huston, represented by new counsel,
argued that the court erred in admitting certain evidence and
that if the issue was not preserved for appeal, Huston’s trial
counsel was ineffective for failing to object at trial and thus
preserve the issue. See Huston I. The evidence at issue was in
exhibits 38, 81, and 95, each of which were video recordings
of police interviews with Huston.
   We held that Huston’s trial counsel did not preserve his
evidentiary objections for appeal and that the record was not
sufficient to adequately review his ineffective assistance of
counsel claim. See Huston I. As a result, Huston’s conviction
and sentence were affirmed.

Postconviction Proceedings.
   Huston filed a pro se motion for postconviction relief,
asserting ineffective assistance of trial and appellate coun-
sel in various respects. The district court denied Huston’s
motion without an evidentiary hearing, and Huston appealed.
See Huston II. We affirmed in part. However, we also deter-
mined that the district court, with respect to the assertion that
Huston’s trial counsel was ineffective in not properly objecting
to portions of exhibits 38, 81, and 95, erred by denying relief
without an evidentiary hearing. We reversed, and remanded
with directions to hold an evidentiary hearing on that issue.
See Huston II.
   Upon remand, the district court held an evidentiary hear-
ing. Following the evidentiary hearing, the district court again
denied Huston’s motion. The district court found that Huston
had failed to establish deficient performance or prejudice, as
required under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The district court found
that trial counsel’s performance was not deficient, because
                              - 208 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. HUSTON
                        Cite as 302 Neb. 202

both parties and the court believed that trial counsel had pre-
served the issues for appeal. The district court also found no
prejudice, because either the statements at issue were admis-
sible at trial or, alternatively, their admission would have
amounted to only harmless error. Huston appeals.

                 ASSIGNMENT OF ERROR
  Huston assigns that the district court erred in denying his
motion for postconviction relief.

                   STANDARD OF REVIEW
   [1] In an evidentiary hearing on a motion for postcon-
viction relief, the trial judge, as the trier of fact, resolves
conflicts in the evidence and questions of fact. An appellate
court upholds the trial court’s factual findings unless they
are clearly erroneous. State v. McGuire, 299 Neb. 762, 910
N.W.2d 144 (2018).
   [2,3] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact. Id. When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error. With regard to questions of counsel’s perform­
ance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland, an appellate court reviews such
legal determinations independently of the lower court’s conclu-
sion. McGuire, supra.

                           ANALYSIS
   [4,5] Huston’s postconviction motion alleges that he received
ineffective assistance of counsel. To prevail on a claim of inef-
fective assistance of counsel under Strickland, the defendant
must show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense. State v. Taylor, 300 Neb. 629, 915 N.W.2d
568 (2018). To show prejudice under the prejudice compo-
nent of the Strickland test, the defendant must demonstrate a
                              - 209 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. HUSTON
                        Cite as 302 Neb. 202

reasonable probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been dif-
ferent. Taylor, supra. A reasonable probability does not require
that it be more likely than not that the deficient performance
altered the outcome of the case; rather, the defendant must
show a probability sufficient to undermine confidence in the
outcome. Id. The two prongs of this test may be addressed in
either order. See id.
   With these principles in mind, we turn to Huston’s specific
claims of ineffective assistance of counsel. Huston asserts that
his counsel provided ineffective assistance by failing to pre-
serve an objection to certain portions of exhibits 38, 81, and
95, all of which are recorded interviews of Huston conducted
by police.

“Serial Killer” Conversation.
   We begin with Huston’s claim that his counsel provided
ineffective assistance by failing to properly object to a portion
of one law enforcement interview of Huston in which Huston
expressed fear about his future dangerousness and admitted
that he had wondered in the past if he were a serial killer.
The portion of the interview at issue was conducted by Sgt.
Gregory Sorensen and went as follows:
         [Huston]: . . . [T]his is what I meant though when I’ve
      told everybody that I want to get help. I never thought
      this could happen and now that this has happened, I am
      so scared that I’m capable of doing it again.
         [Sorensen]: Yeah, I think that that’s probably really
      true.
         [Huston]: And that scares me to death because, like I
      said, I have never thought of myself as a violent person
      and now I don’t know what to think of myself.
         [Sorensen]: Well especially when you consider that . . .
      you have urges to kill the people that you’re attracted to.
         [Huston]: And I’ve done everything that I could for the
      last, you know, if . . . you know, the earliest memories
                              - 210 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. HUSTON
                        Cite as 302 Neb. 202

      I have of this are say 9, 10 years old so . . . 18 years I
      have fought myself.
         [Sorensen]: But most serial killers do the same thing at
      some point in time.
         [Huston]: Oh wow.
         [Sorensen]: At some point in time, they crossed that
      line. I mean when you talk about . . .
         [Huston]: [Interrupting.] I’ve asked myself that.
         [Sorensen]: Whether you[’re] a serial killer?
         [Huston]: Uh-hum (yes). I’ve asked myself that . . .
      you’ve asked me if I have been suicidal in the past.
         [Sorensen]: Yeah[.]
         [Huston]: To be completely honest I lied to you.
      Because of this, I have been. I have thought about killing
      myself so I wouldn’t hurt anyone.
Later in the same interview, Huston stated, “I am so scared
now that this could happen again.”
   Huston objects to two aspects of the above exchange. He
contends that the probative value of his own statements in the
exchange are outweighed by the danger of unfair prejudice
and thus inadmissible under Neb. Evid. R. 403, Neb. Rev.
Stat. § 27-403 (Reissue 2016). Additionally, he contends that
Sorensen’s reference to “serial killers” was not probative of
any issue.
   With respect to Huston’s claim regarding his own statements
in the above exchange, we do not believe his counsel per-
formed deficiently. His statements occurred after he had admit-
ted to law enforcement that Johnson died after Huston wrapped
plastic wrap around his face and held a pillow over Johnson’s
head until his heart stopped beating. We find Huston’s state-
ment that he was scared he might do this again and his admis-
sions that he has urges to kill people to whom he is attracted
and that he had wondered whether he is a serial killer to all
be probative of the central issue in the case—whether Huston
intentionally caused Johnson’s death.
                              - 211 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. HUSTON
                        Cite as 302 Neb. 202

   [6] And while such evidence was certainly harmful to Huston’s
case, most, if not all, evidence offered by a party is calculated
to be prejudicial to the opposing party. State v. Oldson, 293
Neb. 718, 884 N.W.2d 10 (2016). Rule 403 allows for exclu-
sion only if the probative value of evidence is substantially
outweighed by the danger of unfair prejudice. Unfair prejudice
speaks to the capacity of some concededly relevant evidence
to lure the fact finder into declaring guilt on a ground different
from proof specific to the offense charged, commonly on an
emotional basis. Oldson, supra. Given Huston’s own admis-
sions about his involvement in Johnson’s death and the fact that
the conversation sheds light on the key issue of whether Huston
intentionally caused Johnson’s death, we do not consider the
probative value of this evidence to be outweighed by the dan-
ger of unfair prejudice. Because any objection to Huston’s own
statements would not have been successful, trial counsel did not
perform deficiently by not making such an objection. See State
v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).
   [7,8] As for Huston’s claim regarding Sorensen’s statements
in the exchange, we reach the same conclusion. We have rec-
ognized that statements made by law enforcement in the course
of interviewing suspects may be admissible for the purpose of
“providing necessary context to a defendant’s statements in the
interview which are themselves admissible.” State v. Rocha,
295 Neb. 716, 740, 890 N.W.2d 178, 199 (2017). In order to
determine whether a statement made by law enforcement is
admissible to provide context, the probative value of the state-
ments of both the defendant and the officer must be assessed.
See id.
   As we have explained, Huston’s admissions were highly
probative of the issues in the case, certainly more relevant
than mere denials of criminal activity we found relevant in
Rocha. Additionally, Sorensen’s statements are highly relevant,
because Huston’s statements took place in a conversation and
would make little sense without Sorensen as a conversation
partner. For similar reasons to those outlined above, we also
                               - 212 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                         STATE v. HUSTON
                         Cite as 302 Neb. 202

do not believe the probative value of Sorensen’s statements
is outweighed by the danger of unfair prejudice. Because this
evidence was admissible, Huston’s counsel did not perform
deficiently by failing to preserve an objection to them. See
Newman, supra.

Sorensen’s Opinion That Huston
Committed Murder.
   Next, Huston claims he is entitled to postconviction relief
on his claim that his counsel was ineffective for failing to
preserve an objection to a portion of an interview in which
Sorensen stated a belief that Huston committed murder and not
assisted suicide. Huston argues this evidence should have been
excluded as inadmissible opinion testimony.
   Huston’s postconviction motion is not entirely clear as to the
specific statement of Sorensen to which he claims his counsel
deficiently failed to preserve an objection. Exhibits 81 and 95
do contain several exchanges in which Sorensen made state-
ments about the nature of Huston’s involvement with Johnson’s
death. In an interview conducted on October 7, 2009, the fol-
lowing dialogue took place:
         [Sorensen]: . . . [Y]ou or [one of your personalities]
      were the person or persons that killed [Johnson]. And,
      maybe at the time, it started out as a suicide. But it didn’t
      end that way. It just didn’t end that way.
         [Huston]: See, I don’t believe that.
         [Sorensen]: You don’t believe that it didn’t end in a
      homicide?
         [Huston]: No, I don’t.
         ....
         [Huston]: . . . [T]hey asked me that. They asked me
      that. Did he fight? Did he . . .
         [Sorensen]: [Interrupting.] He doesn’t have to fight. All
      he had to do was break the seal, all he had to do was try
      to breathe, and . . . that was his intent to stay alive. He
      tried to br[eathe].
                                 - 213 -
            Nebraska Supreme Court A dvance Sheets
                    302 Nebraska R eports
                           STATE v. HUSTON
                           Cite as 302 Neb. 202

Later, in the same interview, Sorensen stated, “[W]hen you put
the pillow over his face, you are killing him. He’s not killing
himself, you’re killing him.”
   On October 10, 2009, Huston and Sorensen had the follow-
ing conversation after Huston asserted that he “didn’t murder
[Johnson]”:
          [Sorensen]: . . . [B]ut I don’t know how else you can
      describe it. . . . This isn’t . . . assisting a suicide. This . . .
      this is just not assisting a suicide. . . . I don’t know if you
      can understand this, but if [Johnson] looks at me right
      now and he says . . . I can’t take it anymore, you got to
      kill me and I pull a gun out and I shoot him dead.
          [Huston]: You’ve tried to say that before and I do
      understand what you mean.
          [Sorensen]: [Johnson’s] just asked me to kill him and
      I don’t have that right to do that. He can ask me all he
      wants, but I don’t have the right to do it. And this isn’t
      any different . . . I know that you think that it is, but
      it’s not.
   Huston argues that Sorensen’s statements that Huston com-
mitted murder were inadmissible, because the statements were
not based on Sorensen’s personal knowledge and constituted
opinion testimony of Huston’s guilt. However, for reasons
explained below, even assuming this evidence was inadmis-
sible, we do not believe Huston has demonstrated he was
prejudiced by his counsel’s failure to properly object to it.
   Sorensen’s statements that Huston killed Johnson or com-
mitted murder were based on Huston’s admissions. At the
time Sorensen made them, Huston had admitted to restrain-
ing Johnson, wrapping his face in plastic wrap, and covering
his head with a pillow until he stopped breathing. Huston,
however, continued to insist that these acts did not amount to
murder. Sorensen’s statements addressed the question of what
crime Huston had committed if Huston had, in fact, done what
he had admitted doing. At trial, however, Huston did not take
the position that the actions he had admitted taking did not
                              - 214 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. HUSTON
                        Cite as 302 Neb. 202

amount to second degree murder. Rather, he changed course
and denied any involvement in Johnson’s death.
   The basic question before the jury was thus whether to believe
Huston’s numerous admissions that he wrapped Johnson’s face
with plastic wrap and placed a pillow over Johnson’s head until
his heart stopped beating or to believe his later claim made at
trial that he did not actually do what he had previously admit-
ted doing. The jury’s verdict shows it believed Huston’s admis-
sions and not his attempt at trial to disavow them. Huston has
not offered and neither can we discern a reason why the out-
come would have been different if Sorensen’s above statements
had been excluded from evidence.	        Because Huston cannot
demonstrate that he was prejudiced by any failure to object to
the statements discussed above, the district court did not err in
rejecting postconviction relief.

Evidence Regarding Huston’s
Relationships.
   Finally, Huston contends that his counsel provided ineffec-
tive assistance by failing to preserve objections to a part of
exhibit 38, an interview between Huston and police in which
Huston discussed the nature of his relationship with Johnson
and what Huston terms a “homosexual encounter” with Wilson.
Brief for appellant at 40. In that part of the interview, Huston
and an officer had the following discussion:
        [Huston]: Okay. To be completely honest, me and
     [Wilson] were together once. Only once uhm, it’s how it
     came out to [Johnson] that we might have been interested
     in each other, but [Wilson] decided he didn’t want to
     do that.
        [Police officer]: Okay. And was this early in your rela-
     tionship with [Johnson]? Or . . .
        [Huston]: [Interrupting.] Oh, no no. [Wilson] is only
     been back around, see [Wilson] has only been back in the
     picture as a friend of ours for like a month. . . . I believe
     in being up front, yes, one time and only one time me
                               - 215 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                         STATE v. HUSTON
                         Cite as 302 Neb. 202

      and [Wilson] were together and we, well we went to bed
      together, and
         [Police officer]: [Interrupting.] How long ago was that?
         ....
         [Huston]: . . . Three weeks ago.
         [Police officer]: So, it was pretty recent then.
         [Huston]: Yep. . . . [Y]ou probably don’t want to hear
      this, but me and [Johnson] had kind of a . . . unique rela-
      tionship. . . . I know it’s kind of a weird situation to be in
      [be]cause in the four years of our relationship, there was
      never anything sexual uhm, and we allowed ourselves . . .
      an “open relationship.” We allowed ourselves what he’d
      call “[expletive] buddies.” . . . That one and only one
      time that me and [Wilson] ended up . . . was kind of a
      heat of the moment, uhm, you know, spur of the moment
      type thing. . . . [W]e ended up in bed together, we kissed,
      we, we made out, but it never went anywhere further
      than that.
   Huston argues that the discussion quoted above was not rel-
evant to any issues at trial. He contends that his encounter with
Wilson and the open nature of his relationship with Johnson
could only have prejudiced him in the eyes of the jury. He
argues that evidence of his encounter with Wilson was particu-
larly prejudicial, because the jury also heard that Huston served
as Wilson’s mentor in a mentoring program several years
before. Even though Wilson was 19 years old at the time of
the encounter, Huston asserts that the fact that he was formerly
Wilson’s mentor “feels unsavory.” Id. at 41.
   We are not persuaded that Huston was prejudiced by his
counsel’s failure to properly object to the evidence at issue.
Huston’s statements about his encounter with Wilson were
a very small part of lengthy interviews between Huston and
law enforcement, and the recordings were just a portion of
the State’s overall case. Furthermore, while Huston may have
served as a mentor to Wilson when Wilson was younger,
Wilson was 19 years old at the time of the encounter and there
                              - 216 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. HUSTON
                        Cite as 302 Neb. 202

was no suggestion that Huston coerced Wilson at any point to
engage in intimate activity with him.
   In addition, the jury heard other evidence regarding Huston’s
relationship with Wilson. In particular, in one interview with
police in which Huston was explaining that he engaged in role
playing in which he would pretend to kill people to placate his
urges to kill, he admitted that Johnson and Wilson were “prime
targets for this stuff,” because he had urges to kill those to
whom he is physically attracted. At trial, Huston also admitted
that Wilson helped him placate his urges by pretending to allow
Huston to kill him because Huston was attracted to Wilson.
The jury also heard another recording in which Huston told
an officer, “If there was anyone who [Johnson] intended me to
have a relationship with after all this, it would be [Wilson].”
Given the other evidence in the record about Huston’s attrac-
tion to Wilson and about Wilson and Huston’s role playing in
which Huston would pretend to kill Wilson because of that
attraction, evidence of the specific encounter to which Huston
claims his counsel should have objected did little to “alter[] the
evidentiary picture.” See State v. Newman, 300 Neb. 770, 783,
916 N.W.2d 393, 407 (2018).
   In light of the nature of the evidence at issue, the other
evidence in the record regarding Huston’s relationship with
Wilson, and the overall evidence of Huston’s guilt, we find
no reasonable probability that the statements noted by Huston
altered the outcome. We thus reject this claim of ineffective
assistance of counsel for failure to demonstrate prejudice.
                        CONCLUSION
   We find no merit to Huston’s claims that his counsel pro-
vided ineffective assistance by failing to preserve objections
to certain evidence introduced at trial. Accordingly, we affirm
the order of the district court denying Huston postconvic-
tion relief.
                                                    A ffirmed.
   Freudenberg, J., not participating.
