                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                        STATE V. FESSLER


  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.
                                 JEFFREY S. FESSLER, APPELLANT.


                               Filed June 4, 2013.   No. A-12-273.


       Appeal from the District Court for Holt County: MARK D. KOZISEK, Judge. Affirmed.
       Ronald E. Temple, of Fitzgerald, Vetter & Temple, for appellant.
       Jon Bruning, Attorney General, and Nathan A. Liss for appellee.


       SIEVERS, PIRTLE, and RIEDMANN, Judges.
       RIEDMANN, Judge.
                                       I. INTRODUCTION
        Jeffrey S. Fessler challenges his conviction for first degree sexual assault on a child. On
appeal, he argues that (1) the trial court erred in admitting evidence of other sexual assaults, (2)
the trial court erred in failing to provide a sufficient limiting instruction of witness testimony
regarding other sexual assaults, (3) the prosecutor committed misconduct by asking the jurors to
place themselves in the role of the victims, and (4) his counsel did not effectively assist him. We
affirm the conviction.
                                       II. BACKGROUND
       Fessler is the father of twin girls, S.F. and P.F., who were born in May 2001. He and his
wife divorced when the girls were very young, and Fessler was awarded parenting time every
other weekend.
       During the Christmas holidays in 2009, S.F. informed her cousins that Fessler made her
perform oral sex on him. One of the cousins eventually told his mother about the disclosure, and




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she informed the twins’ grandparents of his remarks. The grandparents reported the information
to a child abuse hotline.
                                1. INTERVIEWS AND INVESTIGATION
       On March 30, 2010, Kelli Lowe from the Northeast Nebraska Child Advocacy Center
(CAC) interviewed S.F. and P.F. During that interview, S.F. disclosed sexual abuse, but P.F. did
not. The same day, the Holt County Attorney filed an information charging Fessler with two
counts of first degree sexual assault on a child. The information was amended twice in order to
narrow the date of the assaults to the time period of March 1 through 31, 2010.
       Subsequently, the grandparents arranged for S.F. and P.F. to speak with a pastor. After
speaking with the pastor, P.F. returned to the CAC for a second interview with Lowe, at which
time she disclosed sexual abuse.
                               2. PRETRIAL MOTIONS AND HEARINGS
        Fessler filed several pretrial motions, including a motion to sever the counts, which the
State “confessed.” The State proceeded first on the charges for sexual assault of S.F., and this
appeal deals solely with the alleged errors that occurred in connection with those charges.
        In March 2011, Fessler filed a motion for disclosure of the intention to use evidence of
other sexual assaults pursuant to Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012). The State
“confessed” Fessler’s motion, and a hearing was set.
        At that hearing, Fessler argued that the court should exclude any evidence of sexual
assaults against S.F. outside the date range alleged in the information, March 1 through 31, 2010.
Fessler also argued that the court should exclude testimony P.F. might provide about sexual
assaults Fessler allegedly inflicted upon her. During the hearing, both S.F. and P.F. testified that
Fessler sexually abused them. S.F. and P.F. both stated that Fessler made them perform oral sex
on him. S.F. also testified that Fessler touched her vagina. Fessler testified at the hearing, but did
not discuss whether or not the sexual assaults occurred.
        Based on the testimony, the trial court found “clear and convincing evidence that other
sexual assaults occurred.” The court also found that the probative value of the testimony
substantially outweighed its prejudicial effect. The court deemed evidence of other sexual
assaults admissible to any issue on which they were relevant.
        Fessler also requested a Daubert hearing to determine whether the State’s witnesses
could present evidence of “child sexual abuse accommodation syndrome,” “grooming,” and
“delayed disclosure [explanatory] testimony.” See Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The trial court considered the
request as a motion in limine and denied the motion with respect to Lowe, the CAC interviewer.
The State “confessed” the motion with respect to three other potential witnesses.
        Immediately prior to trial, Fessler moved for the State either to designate a “fresh
complaint witness” or to prevent witnesses from testifying about statements S.F. and P.F. made
in reporting the sexual assaults to them. A “fresh complaint witness” is the first person a sexual
assault victim informs of the assault. The court denied Fessler’s motion and informed his counsel
that he would need to make timely hearsay objections to this testimony at trial if he felt it should
be excluded.


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                                       3. TRIAL TESTIMONY
                                    (a) S.F.’s Trial Testimony
        At trial, S.F. testified that Fessler is her father and that when she was very young, her
parents divorced. She stated that Fessler was awarded parenting time every other weekend.
        S.F. testified that she told her cousins that Fessler makes her “suck his penis” when she
stays with him. Fessler did not object to this statement at trial. She also testified that what she
told her cousins was true and that it happened every time she went to visit Fessler since she was
3 or 4 years old. S.F. explained that Fessler made P.F. perform oral sex on him as well. S.F.
provided a detailed account of the sexual abuse that included testimony that Fessler would kiss
her “and put his tongue in [her] mouth.”
        On cross-examination, S.F. testified that Fessler was living with a woman during a
portion of the time the abuse was occurring. S.F. testified that she could not remember whether
or not the woman was ever present while Fessler was sexually abusing her.
                                    (b) P.F.’s Trial Testimony
        P.F. also testified that Fessler had required her to perform oral sex on him since she was
young. P.F. described the sexual abuse in detail and discussed the consequences of her failure to
follow Fessler’s instructions. She testified that Fessler also required S.F. to perform oral sex on
him. In addition to describing oral sex, P.F. testified that there were other instances where
Fessler sexually abused her through vaginal and anal penetration and inappropriate touching.
P.F. did not testify to these additional acts in the § 27-414 hearing.
        On cross-examination, P.F. testified that the woman who was living with Fessler during
part of the time period when he was sexually abusing her was always at work when the abuse
occurred. She admitted that she had previously made a statement that the woman saw the abuse
and tried to stop it.
                                  (c) Trial Testimony of Cousins
                                         and Their Mother
       The twins’ cousins provided testimony that included the statements S.F. made to them
around Christmas 2009. Defense counsel did not interpose an objection to these statements. Over
a hearsay objection, the trial court allowed the cousins’ mother to repeat the statement one of the
cousins made to her that S.F. and P.F. told him Fessler “makes them suck on his penis.” The trial
court instructed the jury that it was to consider this statement solely for the purpose of
determining whether or not it was said, not for the truth of its content.
                               (d) Trial Testimony of Grandmother
        The grandmother testified that she asked S.F. if Fessler ever did anything that made her
feel uncomfortable. She said S.F. told her she did not want to talk about it, but admitted that what
she told her cousins was the truth. The grandmother testified that she told S.F. that S.F. had not
done anything wrong and that she would not have to go with Fessler alone again.
        On cross-examination, defense counsel asked the grandmother how she felt when she
heard allegations that the girls had been sexually assaulted. The grandmother responded that she
“wanted to kill” Fessler.


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                               (e) Trial Testimony Relating to Pastor
        Defense counsel cross-examined the grandparents, S.F., and P.F. about the twins’
meetings with the pastor. The grandparents both testified that they took S.F. and P.F. to see the
pastor because they thought the girls would benefit from speaking with her, but neither testified
to the content of the conversation between her and the girls. S.F. testified that she met with the
pastor, and that the pastor told her not to be afraid.
        P.F. testified that the pastor convinced her to disclose the sexual abuse. She said that after
talking with the pastor, she was able to disclose the abuse to Lowe. P.F. testified that the pastor
told her that she had not done anything wrong and that Fessler had done “some bad things.”
        P.F. responded affirmatively to defense counsel’s questions as to whether the pastor told
P.F. that Fessler had sexually abused her, but on redirect, P.F. stated the reverse--that she had
told the pastor that Fessler had sexually abused her. She also testified that the pastor told her
about things she had never heard before and used words she had “never heard of before.”
                                    (f) Trial Testimony of Lowe
         Lowe testified that she is a forensic interviewer and supervisor at the CAC. Her job is to
conduct forensic interviews and supervise other forensic interviewers within the center. Lowe
testified that she has “a bachelor’s degree in human service counseling and a master’s of science
and education with an emphasis in social sciences.” Lowe was trained as a forensic interviewer
and received advanced forensic interview training. She has conducted approximately 1,300
forensic interviews.
         Lowe testified that she interviewed both S.F. and P.F. separately. Lowe first interviewed
P.F., who disclosed some possible physical abuse by Fessler but denied any sexual abuse. Lowe
said that she also interviewed S.F., who had a very difficult time disclosing abuse. She explained
that S.F. would tell little pieces and eventually disclose more.
         Lowe testified that children generally do not disclose sexual abuse immediately,
especially if the perpetrator is a family member.
         After Lowe was asked about P.F.’s second interview, defense counsel objected on
hearsay grounds. The trial court overruled the objection, but admonished the jury that P.F.’s
statements could be considered for only limited purposes.
         On cross-examination, defense counsel elicited testimony from Lowe that the reason
forensic interviewers seek to be the first individuals to interview children about alleged abuse is
because children’s memories can be unintentionally tainted if they are interviewed by someone
without special training. Lowe also admitted that she was familiar with studies about “false
memories in children,” but explained that “false memories” were rare.
                                       (g) Closing Argument
        During closing argument, the prosecutor for the State argued that S.F. and P.F. were
credible witnesses because children their age could not describe the alleged sexual acts in the
way S.F. and P.F. did unless they experienced them. As part of this argument, he directed the
jurors to try and remember what it was like to be S.F.’s and P.F.’s age. He then told the jurors to
ask themselves whether or not they could imagine any circumstance in which a child that age
would know about the acts S.F. and P.F. discussed without having experienced them. The


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prosecutor also stated that although the only count being tried was the one involving S.F., P.F.
was an equally important witness who had also had the same experiences.
       In rebuttal, the defense argued that S.F. and P.F. were not reliable witnesses and
suggested that their accounts of the acts had been tainted by interference from the grandparents
and the pastor.
       The jury convicted Fessler of first degree sexual assault on a child. Fessler moved for a
new trial, which the court denied. The court sentenced Fessler to 30 to 40 years’ imprisonment
and ordered him to register under the Nebraska Sex Offender Registration Act.
                                 III. ASSIGNMENTS OF ERROR
         Fessler argues, condensed and restated, that (1) the trial court erred in denying his motion
to exclude other alleged acts of sexual assault, (2) the trial court erred in failing to give an oral or
written jury instruction limiting the testimony of P.F., (3) the State committed prosecutorial
misconduct by asking the jurors to identify with the alleged victims in its closing argument, and
(4) his trial counsel did not effectively assist him.
                                           IV. ANALYSIS
                             1. MOTION TO PRECLUDE OTHER ACTS OF
                                SEXUAL ASSAULT UNDER § 27-414
         Fessler alleges that the trial court erred in finding other sexual acts admissible under
§ 27-414 and in allowing testimony of other sexual acts beyond the scope of the acts discussed at
the § 27-414 hearing. Fessler did not properly preserve either of these issues, because he did not
object to evidence of his other sexual acts at trial.
         A party who fails to make a timely objection to evidence waives the right on appeal to
assert prejudicial error concerning the evidence received without objection. State v. Harris, 263
Neb. 331, 640 N.W.2d 24 (2002). Neither a defendant’s motion in limine nor his renewal of the
motion in limine will preserve an issue for appeal when he fails to object at trial when the
evidence is introduced. See, State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002) (stating
that failure to object to evidence at trial, even though evidence was subject of previous motion to
suppress, waives objection and that party will not be heard to complain of alleged error on
appeal); State v. McDaniel, 17 Neb. App. 725, 771 N.W.2d 173 (2009) (finding that defendant’s
motions in limine did not preserve issue for appeal even though motions were renewed).
         Fessler’s attorney did not preserve a claim of error with respect to the district court’s
ruling on the admissibility of other sexual acts, because he failed to object at trial when the
evidence was adduced.
         An appellate court, however, always reserves the right to note plain error which would
cause a substantial miscarriage of justice or damage the judicial process. See State v. McHenry,
250 Neb. 614, 550 N.W.2d 364 (1996). Plain error exists where there is error, plainly evident
from the record but not complained of at trial, which prejudicially affects a substantial right of a
litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or
result in damage to the integrity, reputation, and fairness of the judicial process. State v. Paul,
256 Neb. 669, 592 N.W.2d 148 (1999).



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         The trial court conducted a hearing pursuant to § 27-414, at which time both S.F. and P.F.
testified to repeated acts of oral sex. S.F. did not testify at the hearing that Fessler kissed her
inappropriately, nor did P.F. testify to acts of vaginal and anal penetration. Although these acts
were beyond the scope of the § 27-414 hearing, we find no plain error in their admission into
evidence at trial because of their probative value. See State v. Kibbee, 284 Neb. 72, 815 N.W.2d
872 (2012). We therefore reject this assignment of error.
                            2. FAILURE TO GIVE LIMITING INSTRUCTION
                                      ON P.F.’S TESTIMONY

        Fessler argues that the trial court erred in failing to give the jury an instruction specifying
the limited uses for which it could consider P.F.’s testimony. Neb. Rev. Stat. § 27-105 (Reissue
2008) states that when evidence is admissible for one purpose, but not another purpose, the trial
court judge, upon request, shall restrict the evidence to its proper scope and instruct the jury
accordingly. In this case, Fessler did not request a limiting instruction; therefore, the trial court
did not err by not including a limiting instruction.
                                3. PROSECUTOR’S REMARKS DURING
                                       CLOSING ARGUMENT
        Fessler argues that the State committed prosecutorial misconduct by asking the jurors to
put themselves in the place of the victims during closing arguments. Fessler acknowledges that
his counsel did not timely object to the statements. A party who fails to make a timely motion for
mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court
erred in not declaring a mistrial due to such prosecutorial misconduct. State v. Wilson, 252 Neb.
637, 564 N.W.2d 241 (1997). Fessler never objected or moved for a mistrial on misconduct;
therefore, he failed to preserve this error.
                             4. INEFFECTIVE ASSISTANCE OF COUNSEL
        Fessler argues that his counsel was ineffective because he (1) failed to object to evidence
of prior sexual assaults beyond the scope of the § 27-414 hearing, (2) failed to object to the
prosecutor’s remarks during closing argument, (3) failed to request a limiting instruction for
P.F.’s testimony, (4) elicited hearsay testimony from S.F. regarding the pastor and her relatives,
(5) failed to object to hearsay testimony from the girls’ cousins and grandmother, (6) elicited
testimony from the grandmother that she “wanted to kill” Fessler, (7) failed to object to the
hearsay testimony of Lowe, (8) failed to object to Lowe’s testimony about “child sexual abuse
accommodation syndrome” and elicited such testimony from Lowe, (9) recommended Fessler
not take the stand in his own defense, and (10) failed to call as a witness on Fessler’s behalf the
woman who had lived with him.
        We disagree that Fessler’s counsel was ineffective for failing to object to S.F’s or P.F.’s
testimony regarding other evidence of sexual acts or for failing to object during closing
arguments. The record is insufficient to address Fessler’s remaining claims of ineffective
assistance of counsel.
        To prevail on a claim of ineffective assistance under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), Fessler must show that his counsel’s performance



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was deficient and that this deficient performance actually prejudiced his defense. See State v.
McClain, 285 Neb. 537, 827 N.W.2d 814 (2013). A claim of ineffective assistance of counsel
need not be dismissed merely because it is made on direct appeal. State v. Young, 279 Neb. 602,
780 N.W.2d 28 (2010). The determining factor is whether the record is sufficient to adequately
review the question. Id. We have generally reached ineffective assistance of counsel claims on
direct appeal only in those instances where it was clear from the record that such claims were
without merit or where trial counsel’s error was “‘so egregious and resulted in such a high level
of prejudice [that] no tactic or strategy can overcome the effect of the error, which effect was a
fundamentally unfair trial.’” Id. at 607-08, 780 N.W.2d at 34 (quoting Massaro v. United States,
538 U.S. 500, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003)).
                             (a) Failing to Object to Evidence Beyond
                                     Scope of § 27-414 Hearing
        Fessler argues that his counsel was ineffective for failing to object to evidence of sexual
assaults that went beyond the scope of the testimony offered at the prior hearing under § 27-414.
In particular, Fessler argues his counsel should have objected to S.F.’s testimony that he kissed
her inappropriately and P.F.’s testimony of anal and vaginal penetration. We address each girl’s
testimony separately.
                                         (i) S.F.’s Testimony
        S.F. testified at trial that Fessler put his tongue in her mouth when he kissed her; she did
not relay this information at the § 27-414 hearing. This evidence, however, was not subject to
§ 27-414 because it was intertwined with the charged sexual assault. See, State v. Freemont, 284
Neb. 179, 817 N.W.2d 277 (2012); State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006)
(stating evidence of other wrongs that is so integrated with crime charged is not extrinsic).
        Prior to § 27-414, which became operative January 1, 2010, evidence of prior bad acts in
sexual assault cases was governed by Neb. Rev. Stat. § 27-404(2) (Reissue 2008). Section
27-404(2) does not apply to evidence of a defendant’s other crimes or bad acts if the evidence is
inextricably intertwined with the charged crime. State v. Freemont, supra. We do not read
§ 27-414 to change the law regarding acts which are inextricably intertwined to the charged
offenses. Because such acts were not considered extrinsic and therefore not subject to § 27-404
before, they are not extrinsic and not subject to § 27-414 now. As a result, even though evidence
of prior sexual assaults may be considered prior bad acts, a hearing under § 27-414 is not
required if this evidence forms the factual setting of the charged offense and is necessary to
present a complete and coherent picture of the facts.
        Under the facts of this case, evidence of the manner in which Fessler kissed S.F. forms
the factual setting of the sexual assault charge and was necessary to present a complete and
coherent picture of S.F.’s weekends with Fessler. Defense counsel was not ineffective in failing
to object to this testimony.
                                        (ii) P.F.’s Testimony
        P.F. testified at trial that Fessler subjected her to vaginal and anal penetration, but did not
relate that information at the § 27-414 hearing. A § 27-414 hearing was not necessary, however,



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for P.F.’s testimony to be admissible because Fessler’s actions toward her were sufficiently
intertwined with the charged offense and therefore were not subject to § 27-414. As previously
discussed, evidence that is sufficiently intertwined with the charged sexual assault is not subject
to a § 27-414 hearing. See, State v. Robinson, supra; State v. Freemont, supra.
         In this case, the State charged Fessler with committing first degree sexual assault against
S.F. The evidence showed, however, that Fessler engaged in a pattern of repeatedly sexually
assaulting both S.F. and P.F. P.F. testified that sometimes Fessler would bring both girls into his
bedroom and the three of them would be naked. He would sexually assault the girls
consecutively, and each would witness the other’s assault. Other times each girl would go into
Fessler’s bedroom alone with him. This practice started when the girls were very young and
continued for a number of years. Accordingly, Fessler’s actions against P.F. are sufficiently
intertwined to the sexual assault charged that they do not require a § 27-414 hearing.
         For purposes of determining whether a § 27-414 hearing was necessary, in this case, it
does not matter that P.F. testified to actions which constituted other acts of sexual assault than
the assault charged. The acts to which P.F. testified help form the context in which the charged
assaults occurred and are a part of Fessler’s pattern of behavior toward his daughters. P.F.’s
testimony was therefore not subject to § 27-414 because it was sufficiently intertwined with the
charged assault. Because P.F.’s testimony was admissible, defense counsel was not ineffective
for failing to object to it.
                          (b) Failing to Object to Prosecutor’s Remarks
                                    During Closing Argument
        Fessler argues that his counsel was ineffective for failing to object to the prosecutor’s
comment asking the jurors to place themselves in the same age range as S.F. and P.F. Because
the prosecutor’s comments were not improper, Fessler’s counsel did not have a duty to object
and therefore was not ineffective for failing to do so.
        Generally, in assessing allegations of prosecutorial misconduct in closing arguments, a
court first determines whether the prosecutor’s remarks were improper. State v. Alarcon-Chavez,
284 Neb. 322, 821 N.W.2d 359 (2012). Prosecutors are charged with the duty to conduct
criminal trials in such a manner that the accused may have a fair and impartial trial and
prosecutors are not to inflame the prejudices or excite the passions of the jury against the
accused. Id. A prosecutor’s conduct that does not mislead and unduly influence the jury does not
constitute misconduct. Id.
        In this case, the prosecutor did not ask the jurors to sympathize with the victims or to
place themselves in the role of the victims; rather, the prosecutor asked the jurors to remember
the level of knowledge they had when they were the age of the victims. The statement was
intended to help the jurors properly evaluate the testimony of a young witness. The comment did
not mislead or unduly influence the jurors and therefore did not constitute misconduct. Fessler’s
counsel had no duty to object, and his failure to do so cannot be considered deficient.
Accordingly, this claim of ineffective assistance of counsel is without merit.




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                               (c) Remaining Claims of Ineffective
                                     Assistance of Counsel
       Fessler’s remaining assignments of error regarding ineffective assistance of trial counsel
involve trial strategy, and the record is insufficient for us to address those claims.
                                       V. CONCLUSION
        Fessler failed to properly preserve the claims he now asserts as errors. We have reviewed
his claim that the trial court erred in admitting evidence of other sexual assaults for plain error
and found none. The record is insufficient to review his claims of ineffective assistance of
counsel, with the exception of S.F.’s and P.F.’s testimony of prior bad acts and the alleged
prosecutorial misconduct. As to these two claims, we determine that his counsel was not
ineffective. Accordingly, we affirm the decision of the trial court.
                                                                                        AFFIRMED.




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