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08/07/2018 09:08 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     26 Nebraska A ppellate R eports
                                                 STATE v. HUERTA
                                              Cite as 26 Neb. App. 170




                                        State of Nebraska, appellee,
                                         v. Jose Huerta, appellant.
                                                   ___ N.W.2d ___

                                        Filed August 7, 2018.    No. A-17-562.

                1.	 Rules of Evidence: Appeal and Error. When the Nebraska Evidence
                    Rules commit the evidentiary question at issue to the discretion of the
                    trial court, an appellate court reviews the admissibility of evidence for
                    an abuse of discretion.
                2.	 Trial: Rules of Evidence: Expert Witnesses. A trial court exercises
                    its discretion in determining whether evidence is relevant and whether
                    its prejudicial effect substantially outweighs its probative value and in
                    admitting or excluding an expert’s testimony.
                3.	 Judgments: Words and Phrases. An abuse of discretion occurs when a
                    trial court’s decision is based upon reasons that are untenable or unrea-
                    sonable or if its action is clearly against justice or conscience, reason,
                    and evidence.
                4.	 Rules of Evidence: Other Acts. Neb. Evid. R. 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.
                5.	 ____: ____. Inextricably intertwined evidence includes evidence that
                    forms part of the factual setting of the crime, or evidence that is so
                    blended or connected to the charged crime that proof of the charged
                    crime will necessarily require proof of the other crimes or bad acts, or if
                    the other crimes or bad acts are necessary for the prosecution to present
                    a coherent picture of the charged crime.
                6.	 Evidence: Words and Phrases. Unfair prejudice means an undue tend­
                    ency to suggest a decision based on an improper basis.
                7.	 Trial: Evidence: Appeal and Error. On appeal, a defendant may not
                    assert a different ground for his objection to the admission of evidence
                    than was offered at trial.
                8.	 Trial: Waiver: Appeal and Error. Failure to make a timely objection
                    waives the right to assert prejudicial error on appeal.
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                 26 Nebraska A ppellate R eports
                               STATE v. HUERTA
                            Cite as 26 Neb. App. 170

 9.	 Jury Instructions. Whether jury instructions given by a trial court are
     correct is a question of law.
10.	 Judgments: Appeal and Error. When reviewing questions of law, an
     appellate court resolves the questions independently of the conclusion
     reached by the lower court.
11.	 Jury Instructions: Proof: Appeal and Error. In an appeal based on
     a claim of an erroneous jury instruction, the appellant has the burden
     to show that the questioned instruction was prejudicial or otherwise
     adversely affected a substantial right of the appellant.
12.	 Appeal and Error. Plain error may be found on appeal when an error
     unasserted or uncomplained of at trial, but plainly evident from the
     record, prejudicially affects a litigant’s substantial right and, if uncor-
     rected, would result in damage to the integrity, reputation, and fairness
     of the judicial process.
13.	 Verdicts: Appeal and Error. Harmless error review looks to the basis
     on which the trier of fact actually rested its verdict; the inquiry is
     not whether in a trial that occurred without the error a guilty verdict
     surely would have been rendered, but, rather, whether the actual guilty
     verdict rendered in the questioned trial was surely unattributable to
     the error.
14.	 Criminal Law: Trial: Proof: Jury Instructions: Due Process. In a
     criminal trial, the State must prove every element of the offense beyond
     a reasonable doubt, and a jury instruction violates due process if it fails
     to give effect to that requirement.
15.	 Trial: Jury Instructions: Due Process. Not every ambiguity, inconsist­
     ency, or deficiency in a jury instruction rises to the level of a due proc­
     ess violation. The question is whether the ailing instruction so infected
     the entire trial that the resulting conviction violates due process.
16.	 Jury Instructions: Appeal and Error. All the jury instructions must
     be read together, and if, taken as a whole, they correctly state the law,
     are not misleading, and adequately cover the issues supported by the
     pleadings and the evidence, there is no prejudicial error necessitat-
     ing reversal.
17.	 Trial: Prosecuting Attorneys: Jury Instructions. A statement made by
     a prosecutor during closing argument can assist a jury in resolving any
     ambiguity in the jury instructions and may be considered particularly
     where the prosecutor’s argument resolves the ambiguity in favor of
     the defendant.
18.	 Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
     counsel is different from his or her counsel on direct appeal, the defend­
     ant must raise on direct appeal any issue of trial counsel’s ineffective
     performance which is known to the defendant or is apparent from the
     record. Otherwise the issue will be procedurally barred.
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                 26 Nebraska A ppellate R eports
                              STATE v. HUERTA
                           Cite as 26 Neb. App. 170

19.	 Effectiveness of Counsel: Records: Appeal and Error. The fact that
     an ineffective assistance of counsel claim is raised on direct appeal does
     not necessarily mean that it can be resolved. The determining factor is
     whether the record is sufficient to adequately review the question.
20.	 Effectiveness of Counsel: Proof: 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 counsel’s performance was deficient and that this defi-
     cient performance actually prejudiced his or her defense.

   Appeal from the District Court for Buffalo County: William
T. Wright, Judge. Affirmed.
   David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson,
P.C., for appellant.
   Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
   Moore, Chief Judge, and A rterburn and Welch, Judges.
   A rterburn, Judge.
                      I. INTRODUCTION
   Jose Huerta was convicted by a jury of first degree sexual
assault. The district court subsequently sentenced Huerta to
6 to 8 years’ imprisonment. Huerta appeals from his convic-
tion here. On appeal, he assigns numerous errors, including
that the district court erred in making certain evidentiary
rulings and in failing to properly instruct the jury. In addi-
tion, Huerta alleges that he received ineffective assistance of
trial counsel in various respects. Upon our review, we affirm
Huerta’s conviction.
                     II. BACKGROUND
   The State filed an information charging Huerta with
first degree sexual assault pursuant to Neb. Rev. Stat.
§ 28-319(1)(c) (Reissue 2016). Specifically, the information
alleged that Huerta, who is 19 years of age or older, subjected
a person, who was at least 12 years old, but less than 16 years
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                         STATE v. HUERTA
                      Cite as 26 Neb. App. 170

old, to sexual penetration. The charge against Huerta stems
from an incident which occurred on April 3, 2016. Evidence
adduced at trial revealed that during the evening of April 3,
14-year-old C.W. was spending time with her 16-year-old
friend, C.G., when C.G. contacted Huerta, whom she referred
to as her “uncle,” to come pick them up. After Huerta picked
the girls up, he drove them to a liquor store where he pur-
chased beer, and then he drove all of them to an apartment
owned by his friend, William McGregor.
   The events that transpired after Huerta, C.W., and C.G.
arrived at McGregor’s apartment were disputed at trial. C.W.
testified that once they arrived at the apartment, she, C.G.,
and Huerta all began to drink the beer he had purchased and
to smoke cigarettes, which were also provided by Huerta.
C.W. testified that she drank four beers, which was more alco-
hol than she had ever previously consumed. In fact, she drank
so much that she threw up in a trash can which was located
in the kitchen of the apartment. C.W. testified that after they
had been at the apartment for a few hours, C.G. and Huerta
went into the bathroom together and shut the door. While
they were in the bathroom, C.W. could hear “kissing sounds.”
When they returned from the bathroom, C.W. observed Huerta
touching C.G. “in her vaginal area” over her clothing and
kissing C.G.
   C.W. testified that at some point, Huerta began touching
her vaginal area. C.G. then instructed C.W. to come into the
bedroom with her and Huerta. Once inside the bedroom, C.W.
sat on the corner of the bed. C.W. testified that C.G. told C.W.
that C.W. was “not going to be a virgin anymore.” Then C.G.
and Huerta undressed and began having sexual intercourse
on the bed next to where C.W. was sitting. C.W. testified that
Huerta used a condom during his sexual contact with C.G. She
indicated that she had observed Huerta obtain this condom
from the laundry room in the apartment.
   After C.G. and Huerta finished, they dressed and all three
of them returned to the living room. However, a few minutes
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                         STATE v. HUERTA
                      Cite as 26 Neb. App. 170

later, Huerta obtained another condom from McGregor, and
C.W., C.G., and Huerta returned to the bedroom. This time,
Huerta took off C.W.’s clothes and removed his own clothes.
He began having penile-vaginal intercourse with C.W. She tes-
tified that she had never had sexual intercourse before and that
it was “very painful.” She also testified that she told Huerta
to stop because she was in pain, but he did not stop. C.W.
indicated that during this portion of the assault, C.G. remained
in the bedroom. After C.G. left the room, C.W. described that
Huerta had anal sex and oral sex with her. She explained that
Huerta had “stuck his penis through my anus,” that he had
“placed my mouth on his penis,” and that he “was biting” her
vaginal area.
    After the assault, C.G.’s boyfriend came to McGregor’s
apartment to take the girls home. C.W. testified that in the days
following the assault, she felt anxiety and depression about
what had happened. Ultimately, she was admitted to a mental
health hospital where she disclosed the assault.
    C.G. also testified at trial and essentially corroborated
C.W.’s version of the events which transpired on the evening
of April 3, 2016. C.G. testified that she, C.W., and Huerta
went to McGregor’s apartment where they all began to drink
beer, which was provided by Huerta. She testified that at
some point, she, C.W., and Huerta went into the bedroom
where she and Huerta had consensual sexual intercourse. C.G.
described that C.W. was on the bed while she and Huerta had
sex. She also explained that after she and Huerta finished,
Huerta began having sexual intercourse with C.W. C.G. indi-
cated that after C.W. and Huerta began having sex, she left
the bedroom.
    During the trial, the State also offered DNA evidence which
was recovered from two condoms located in the bedroom of
McGregor’s apartment. This evidence revealed that on one of
the condoms, both C.G.’s and Huerta’s DNA was present. On
the second condom, C.W.’s DNA was present, but no conclu-
sions could be drawn about the presence of any other DNA
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                          STATE v. HUERTA
                       Cite as 26 Neb. App. 170

because the sample was “too complex.” Both condoms tested
positive for the presence of semen.
   Huerta did not testify at trial, nor did he offer any evidence
in his defense. However, during the trial the State did offer the
testimony of Investigator Daniel Warrington with the Kearney
Police Department, who had previously interviewed Huerta
about his version of the events of April 3, 2016. During the
interview, Huerta admitted that the girls were with him at
McGregor’s apartment, but he denied he had any type of sexual
contact with either C.W. or C.G. He described himself as “a
mentor” to C.G. During a subsequent interview with Huerta,
Huerta continued to “adamantly” deny that he had provided the
girls with any alcohol, but admitted that he had drank “a large
amount of alcohol.” He also admitted that C.G. tried to give
him a “lap dance.” Huerta told Investigator Warrington that he
had observed C.W. and C.G. kissing each other. He then went
into the bedroom to sleep.
   When Investigator Warrington indicated that law enforce-
ment was testing the condoms found in the bedroom for DNA,
Huerta explained that when he awoke after being asleep on
the bed, his “pants were loose on him.” He told Investigator
Warrington that he was concerned that the girls “did something
to him while he was passed out.”
   After hearing all of the evidence, the jury convicted Huerta
of first degree sexual assault. The district court subsequently
sentenced Huerta to 6 to 8 years’ imprisonment.
   Huerta appeals his conviction here.

               III. ASSIGNMENTS OF ERROR
   On appeal, Huerta assigns four errors. First, Huerta argues
that the district court erred in overruling his objections to
evidence regarding his sexual contact with C.G. Second, he
argues that the court erred in allowing the State to offer evi-
dence of DNA testing which provided inconclusive results.
Third, he alleges that the court committed plain error in
instructing the jury prior to its deliberations. Finally, he asserts
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                          STATE v. HUERTA
                       Cite as 26 Neb. App. 170

that he received ineffective assistance of trial counsel in vari-
ous respects.
                       IV. ANALYSIS
                   1. Evidentiary Rulings
   On appeal, Huerta alleges that the district court erred in
making two evidentiary rulings. First, he alleges that the court
erred in permitting the State to present evidence regarding
his sexual contact with C.G. on the night of April 3, 2016.
Second, he alleges that the court erred in allowing the State
to present evidence regarding DNA testing that was done
on the two condoms found in a trash can in McGregor’s
bedroom.
                      (a) Standard of Review
   [1,2] When the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
we review the admissibility of evidence for an abuse of discre-
tion. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).
A trial court exercises its discretion in determining whether
evidence is relevant and whether its prejudicial effect sub-
stantially outweighs its probative value. Id. In addition, a trial
court exercises its discretion admitting or excluding an expert’s
testimony. See State v. Braesch, 292 Neb. 930, 874 N.W.2d
874 (2016).
   [3] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. State v. Johnson, supra.
                    (b) Evidence of Huerta’s
                   Sexual Contact with C.G.
   During the State’s opening statement, Huerta objected to
comments regarding Huerta’s sexual contact with C.G. on the
night of April 3, 2016. Huerta’s counsel argued:
     The objection is that, Your Honor, this is prejudicial. It’s a
     404 objection in that the evidence would tend to indicate
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                         STATE v. HUERTA
                      Cite as 26 Neb. App. 170

     rather than what actually happened between [Huerta] and
     the alleged victim, [C.W.], that it’s probable because he
     had legal sex with what the law would consider a consent-
     ing adult, although, she’s a 16-year-old and a minor, that
     he also did have sex with [C.W.]
        So I think that that being the case, that evidence is
     more prejudicial than probative in that it would allow the
     jury to make an improper conclusion that, well, if he had
     sex with this person, then he must have had sex with this
     other person.
The district court overruled Huerta’s objection to the evidence.
The court stated:
     And at least the Court’s understanding is that this is all
     part and parcel of a series of acts leading to the actual
     sexual act, which is the basis for the charge. It is not a
     separate act in and of itself.
        And so on that basis, I am going to overrule the
     objection. I’ll allow the State to make an opening state-
     ment with regard to what the alleged victim in this case,
     [C.W.], observed, in large part because it is part of the
     ongoing criminal act and at least potentially preparatory
     for grooming her for something that might later have
     occurred. So I believe it is probative. I believe under the
     circumstances it is more probative than prejudicial in
     any event.
When Huerta renewed his objection to this evidence at various
points during the State’s presentation of evidence, the district
court continued to overrule the objection.
   On appeal, Huerta argues that the district court erred in
overruling his objections to evidence regarding his sexual con-
tact with C.G. on April 3, 2016. He argues that this evidence
was not “inextricably intertwined” with evidence regarding the
sexual assault of C.W. Brief for appellant at 15. In addition, he
argues that the probative value of the evidence was clearly out-
weighed by its potential prejudice. We conclude that Huerta’s
assertions have no merit. The district court did not abuse its
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                         STATE v. HUERTA
                      Cite as 26 Neb. App. 170

discretion in admitting evidence of Huerta’s sexual contact
with C.G. into evidence.
   [4,5] We conclude first that the district court did not err
in determining that evidence of Huerta’s sexual contact with
C.G. was inextricably intertwined with evidence of his sexual
assault of C.W. so as to exclude such evidence from the
parameters of Neb. Evid. R. 404(2). Rule 404(2) provides the
following:
      Evidence of other crimes, wrongs, or acts is not admis-
      sible to prove the character of a person in order to show
      that he or she acted in conformity therewith. It may, how-
      ever, be admissible for other purposes, such as proof of
      motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident.
Rule 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. Burries, 297 Neb. 367, 900
N.W.2d 483 (2017). Inextricably intertwined evidence includes
evidence that forms part of the factual setting of the crime, or
evidence that is so blended or connected to the charged crime
that proof of the charged crime will necessarily require proof
of the other crimes or bad acts, or if the other crimes or bad
acts are necessary for the prosecution to present a coherent
picture of the charged crime. Id.
   Huerta’s sexual contact with C.G. on the evening of April
3, 2016, was part of the factual setting for the assault of C.W.,
which occurred on the same evening. The State presented evi-
dence that Huerta and C.G. instructed C.W. to come into the
bedroom with them and that they proceeded to have sexual
intercourse on the bed while C.W. was seated next to them.
In addition, C.W. testified that once they all got into the bed-
room, C.G. told C.W. that after that night, C.W. was no longer
going to be a virgin. C.W. also testified that while Huerta and
C.G. were engaging in sexual intercourse, he tried to pull her
down so that she, too, was lying on the bed next to them. The
sexual assault of C.W. happened very close in time to Huerta’s
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                         STATE v. HUERTA
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sexual contact with C.G. While C.W. testified that there was
a little time between the two events because all three of them
left the bedroom to go to the living room for a few minutes,
C.G. testified that Huerta began having sexual intercourse with
C.W. almost immediately after she and Huerta stopped having
sexual intercourse.
   The record supports a conclusion that the evidence of
Huerta’s sexual contact with C.G. was necessary to present a
coherent picture of the events of the evening of April 3, 2016.
In addition, we find that there is some evidence to suggest that
Huerta had some sort of plan to “groom” C.W. for the sexual
encounter by involving her in the sexual contact with C.G.
   [6] We also find that the district court did not err in con-
cluding that evidence of Huerta’s sexual contact with C.G. was
more probative than prejudicial. Neb. Evid. R. 403 provides,
“Although relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or need-
less presentation of cumulative evidence.” Unfair prejudice
means an undue tendency to suggest a decision based on an
improper basis. State v. Chauncey, 295 Neb. 453, 890 N.W.2d
453 (2017).
   Evidence of Huerta’s sexual contact with C.G. was proba-
tive for multiple reasons. First, the evidence demonstrated
that Huerta lied to Investigator Warrington about the events of
April 3, 2016, on two separate occasions. Huerta repeatedly
told Investigator Warrington that he did not have any sexual
contact with either C.W. or C.G. Huerta also indicated during
his interview with Investigator Warrington that he considered
himself to be a mentor to C.G. and that he would not do any-
thing like that to her. Second, as we discussed above, evidence
of Huerta’s sexual contact with C.G. provided necessary fac-
tual context to the events leading up to Huerta’s sexual assault
of C.W. The evidence suggests that Huerta intended C.W.’s
exposure to the sexual contact between him and C.G. to be a
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step toward his sexual assault of C.W. Accordingly, while the
evidence may have been prejudicial to Huerta, its probative
value clearly outweighed any unfair prejudice.
   Upon our review, we do not find that the district court
abused its discretion in allowing the State to present evidence
of Huerta’s sexual contact with C.G. on the evening of April 3,
2016. Huerta’s assertions on appeal to the contrary are with-
out merit.

                       (c) DNA Evidence
   During the trial, the State called Jeff Bracht, a forensic
scientist with the Nebraska State Patrol, to testify regard-
ing his analysis of the two condoms found in a trash can in
McGregor’s bedroom. Bracht testified that the presence of
semen was detected on both condoms. He went on to testify
that on the first condom he analyzed, both C.G.’s and Huerta’s
DNA were present. Huerta objected to Bracht’s testimony
regarding the DNA on the first condom on the basis that such
evidence was more prejudicial than probative. The court over-
ruled the objection.
   Bracht testified that his analysis indicated that on the sec-
ond condom, C.W.’s DNA was present on one side of the
condom. Bracht did indicate that on the side of the condom
where C.W.’s DNA was present, Huerta was excluded as a
contributor of the sample. However, on the other side of the
condom, Bracht was unable to include or exclude anyone as a
contributor to the DNA present. He testified, “There is just a
lot going on. The mixture was too complex to really determine
how many people were in that mixture.”
   Huerta alleges on appeal that the district court erred in
allowing the State to present evidence regarding the DNA
testing completed on the two condoms. Specifically, he argues
that evidence that the first condom contained both C.G.’s and
his DNA should have been excluded because the evidence was
not relevant to the question of whether he had sexual con-
tact with C.W. Additionally, he argues that evidence that the
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second condom contained C.W.’s DNA, but that the remaining
sample was “too complex” to reach any conclusions about
other contributors of DNA, constituted “inconclusive” test
results that “could cause the jury to speculate.” Brief for
appellant at 17. Because Huerta failed to properly object to the
DNA evidence regarding both condoms, we conclude that he
has waived his right to appellate review of this issue.
   [7] During Bracht’s testimony, Huerta objected to the admis-
sion of evidence about the condom that contained both his and
C.G.’s DNA because the evidence was more prejudicial than
probative. However, on appeal, he argues that the evidence
should not have been admitted because it was not relevant
to whether he had sexual contact with C.W. Essentially, he is
asserting a different ground for his objection on appeal than he
did at trial. On appeal, a defendant may not assert a different
ground for his objection to the admission of evidence than was
offered at trial. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d
267 (2012). Because at trial Huerta did not object to the admis-
sion of evidence about the condom that contained both his and
C.G.’s DNA on the basis of relevance, he is precluded from
arguing that assertion in this appeal.
   [8] In addition, Huerta did not object at all to Bracht’s tes-
timony regarding the DNA found on the second condom. It is
well settled that failure to make a timely objection waives the
right to assert prejudicial error on appeal. State v. Casterline,
293 Neb. 41, 878 N.W.2d 38 (2016). We conclude that Huerta
has waived appellate review regarding the district court’s deci-
sion to admit the DNA evidence.

                       2. Jury Instructions
   Huerta alleges that the district court committed plain error
in improperly instructing the jury regarding the elements of
first degree sexual assault and the State’s burden of proof
regarding those elements. Although we agree with Huerta that
the district court did err in its instructions to the jury, we find
that such error was harmless.
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                    (a) Standard of Review
   [9-11] Whether jury instructions given by a trial court are
correct is a question of law. State v. Abejide, 293 Neb. 687,
879 N.W.2d 684 (2016). When reviewing questions of law,
an appellate court resolves the questions independently of the
conclusion reached by the lower court. Id. In an appeal based
on a claim of an erroneous jury instruction, the appellant has
the burden to show that the questioned instruction was preju-
dicial or otherwise adversely affected a substantial right of
the appellant. State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d
211 (2016).

                           (b) Analysis
   Jury instruction No. 7 provided to the jury informed it of
the elements of the charge of first degree sexual assault. That
instruction, as given to the jury in this case, read as follows:
         The elements of the crime of first degree sexual
      assault are:
         (1) That the Defendant, . . . Huerta, subjected C.W. to
      sexual penetration;
         (2) That when [Huerta] subjected C.W. to sexual pen-
      etration he was a person nineteen years of age or older;
         (3) That when [Huerta] subjected C.W. to sexual pen-
      etration she was a person at least 12 years of age but less
      than 16 years of age;
         (4) That events occurred on or about April 3, 2016;
      and
         (5) These events occurred in Buffalo County, Nebraska.
   During the jury instruction conference, Huerta did not
object to this instruction, nor did he offer an alternative
instruction in its place. On appeal, however, he argues that the
district court erred in giving jury instruction No. 7 because
the instruction does not conform to the applicable pattern jury
instruction and does not properly instruct the jury that the
State has to prove each element of the crime charged beyond
a reasonable doubt. We agree with Huerta’s basic contention
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that the district court erred in failing to model jury instruction
No. 7 after the applicable pattern instruction.
   [12] As Huerta concedes in his brief on appeal, he did not
object to jury instruction No. 7 during the trial. As such, we
review only for plain error. Plain error may be found on appeal
when an error unasserted or uncomplained of at trial, but
plainly evident from the record, prejudicially affects a litigant’s
substantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.
State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).
   Whenever an applicable instruction may be taken from the
Nebraska Jury Instructions, that instruction is the one which
should usually be given to the jury in a criminal case. State v.
Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011). NJI2d Crim.
3.0 provides a pattern instruction for explaining to the jury the
elements of the charged crime or crimes. Included in NJI2d
Crim. 3.0, in addition to the elements of the charged crime,
is a separate section which instructs the jury regarding the
“Effect of Findings.” That section reads as follows: “If you
decide that the state proved each element beyond a reasonable
doubt then you must find the defendant guilty. Otherwise, you
must find the defendant not guilty.”
   In this case, the district court properly instructed the jury
regarding the elements of first degree sexual assault in jury
instruction No. 7. However, the court did not include in that
instruction the separate section regarding the effect of the
jury’s findings. Essentially, jury instruction No. 7 failed to
inform the jury that it had to find that the State proved each
element of first degree sexual assault beyond a reasonable
doubt in order to find Huerta guilty of that crime. We agree
with Huerta that the district court committed plain error in
omitting that portion of the instruction. Nevertheless, we find
that the court’s omission does not require reversal because such
omission constituted a harmless error.
   [13] Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not
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whether in a trial that occurred without the error a guilty ver-
dict surely would have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely
unattributable to the error. State v. Merchant, 288 Neb. 439,
848 N.W.2d 630 (2014). Upon our review, we conclude that the
district court’s error in giving jury instruction No. 7 is harm-
less because the other instructions given to the jury properly
instructed it regarding the State’s burden to prove Huerta’s
guilt beyond a reasonable doubt.
   [14,15] In a criminal trial, the State must prove every ele-
ment of the offense beyond a reasonable doubt, and a jury
instruction violates due process if it fails to give effect to that
requirement. See, e.g., Middleton v. McNeil, 541 U.S. 433, 124
S. Ct. 1830, 158 L. Ed. 2d 701 (2004); Rose v. Clark, 478 U.S.
570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986). Nonetheless, not
every ambiguity, inconsistency, or deficiency in a jury instruc-
tion rises to the level of a due process violation. The question
is whether the ailing instruction so infected the entire trial
that the resulting conviction violates due process. Middleton
v. McNeil, supra. To determine whether Huerta’s due process
rights have been violated, the question that must be answered
is whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way that violates the
Constitution. See id.
   Our review of the case law in this area reveals that many
courts have considered the effect of failing to instruct the
jury regarding each and every element of the charged crime
or failing to properly instruct the jury as to the meaning of
each and every element of the charged crime. However, this
is not the situation presented by this case. The district court
properly instructed the jury regarding each element of Huerta’s
first degree sexual assault charge. However, the court did
not explicitly indicate that the jury had to find that the State
proved each and every element of first degree sexual assault
beyond a reasonable doubt in order to find Huerta guilty of
that charge. We have been unable to find a similar case where
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a court has failed to specifically delineate to the jury that the
State must prove each element of the charged crime beyond a
reasonable doubt.
   [16] We have examined all of the jury instructions provided
to the jury in this case. Notwithstanding the district court’s
error in giving jury instruction No. 7, we conclude that the
jury was properly instructed that it had to find the State proved
each element of first degree sexual assault beyond a reasonable
doubt in order to return a guilty verdict. All the jury instruc-
tions must be read together, and if, taken as a whole, they cor-
rectly state the law, are not misleading, and adequately cover
the issues supported by the pleadings and the evidence, there
is no prejudicial error necessitating reversal. State v. Merchant,
288 Neb. 439, 848 N.W.2d 630 (2014). And the appellant
has the burden to show that a questioned jury instruction was
prejudicial or otherwise adversely affected a substantial right
of the appellant. Id.
   Jury instruction No. 2 stated:
         As I told you at the beginning of the trial this is a
      criminal case in which the State of Nebraska has charged
      [Huerta] with first degree sexual assault. The fact that
      the State has brought this charge is not evidence of any-
      thing. The charge is simply an accusation, nothing more.
      [Huerta] has pleaded not guilty. He is presumed to be
      innocent. That means you must find him not guilty unless
      and until you decide that the State has proved him guilty
      beyond a reasonable doubt.
In addition, jury instruction No. 9 instructed the jury regarding
the definition of reasonable doubt:
         A reasonable doubt is one based upon reason and com-
      mon sense after careful and impartial consideration of all
      the evidence. Proof beyond a reasonable doubt is proof so
      convincing that you would rely and act upon it without
      hesitation in the more serious and important transactions
      of life. However, proof beyond a reasonable doubt does
      not mean proof beyond all possible doubt.
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The district court also informed the jury prior to reading the
jury instructions that “[n]o one of these instructions contain
all of the law applicable to this case. You must consider each
instruction in light of all the others.” This admonition is also
contained in jury instruction No. 1.
   [17] In addition to the jury instructions provided by the dis-
trict court, we note that the State correctly informed the jury
about its burden of proof during its closing argument:
         So what I really want you to focus on right now is Jury
      Instruction No. 7. And that’s going to be the elements the
      State has to prove. As we talked about during my voir
      dire with you initially when we did the jury selection,
      if you can remember we talked about what the State’s
      burden is and it is to prove [Huerta] guilty beyond a
      reasonable doubt of the elements, not every fact that the
      witnesses say, okay. So let’s go over those elements and
      how the State has proven each one of those individually
      beyond a reasonable doubt.
Following this statement, counsel for the State explained in
her argument to the jury how the burden of proof had been
met as to each element of the charged offense. The U.S.
Supreme Court noted in Middleton v. McNeil, 541 U.S. 433,
124 S. Ct. 1830, 158 L. Ed. 2d 701 (2004), that a statement
made by a prosecutor during closing argument can assist a
jury in resolving any ambiguity in the jury instructions and
may be considered particularly where, as here, the pros-
ecutor’s argument resolves the ambiguity in favor of the
defendant.
   Based upon our reading of the entirety of the jury instruc-
tions provided in this case and considering the statements
of the State in its closing argument, we find that the district
court’s failure to include in jury instruction No. 7 a separate
section informing the jury regarding the effect of its findings
was harmless error. Read as a whole, the jury instructions
properly inform the jury that it had to find that the State
had proved all of the elements of first degree sexual assault
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beyond a reasonable doubt in order to find Huerta guilty of
that crime. To the extent the instructions were ambiguous
in any way, the State’s clear and explicit explanation of its
burden of proof during closing argument resolved that ambi-
guity. There is no reasonable likelihood that the jury applied
jury instruction No. 7 in a way that violates the Constitution.
Huerta cannot show he was prejudiced in any way by the
district court’s omission of the separate section from jury
instruction No. 7, and his guilty verdict was surely unattribut-
able to the court’s error.

                     3. Ineffective Assistance
                         of Trial Counsel
   On appeal, Huerta alleges that his trial counsel was inef-
fective in (1) failing to object to the testimony of Investigator
Warrington regarding Huerta’s date of birth, (2) failing to file
a motion in limine to exclude evidence of Huerta’s sexual con-
tact with C.G., (3) failing to object to jury instruction No. 7,
and (4) failing to object to the DNA evidence. We will address
each of Huerta’s allegations of ineffective assistance of counsel
below. First, however, we detail the relevant law which over-
lays our analysis of ineffective assistance of counsel claims
which are made on direct appeal.
   [18,19] Huerta is represented in this direct appeal by differ-
ent counsel than the counsel who represented him during trial.
However, we do note that appellate counsel did begin repre-
senting Huerta at his sentencing hearing. When a defendant’s
trial counsel is different from his or her counsel on direct
appeal, the defendant must raise on direct appeal any issue of
trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record. Otherwise the issue
will be procedurally barred. State v. Casares, 291 Neb. 150,
864 N.W.2d 667 (2015). The fact that an ineffective assistance
of counsel claim is raised on direct appeal does not necessar-
ily mean that it can be resolved. State v. Mendez-Osorio, 297
Neb. 520, 900 N.W.2d 776 (2017). The determining factor is
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whether the record is sufficient to adequately review the ques-
tion. Id.
   [20] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense. State v.
Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
   When an ineffective assistance of counsel claim is raised
in a direct appeal, the appellant is not required to allege
prejudice; however, an appellant must make specific allega-
tions of the conduct that he or she claims constitutes deficient
performance by trial counsel. State v. Casares, supra. General
allegations that trial counsel performed deficiently or that trial
counsel was ineffective are insufficient to raise an ineffective
assistance claim on direct appeal and thereby preserve the
issue for later review. Id.
   Appellate courts have generally reached ineffective assist­
ance of counsel claims on direct appeal only in those instances
where it was clear from the record that such claims were with-
out merit or in the rare case where trial counsel’s error was so
egregious and resulted in such a high level of prejudice that
no tactic or strategy could overcome the effect of the error,
which effect was a fundamentally unfair trial. Id. An ineffec-
tive assistance of counsel claim made on direct appeal can be
found to be without merit if the record establishes that trial
counsel’s performance was not deficient or that the appellant
could not establish prejudice. Id. See, also, State v. Filholm,
287 Neb. 763, 848 N.W.2d 571 (2014).

              (a) Failure to Object to Investigator
                    Warrington’s Testimony
   Huerta alleges that his trial counsel was ineffective in
failing to object to the testimony of Investigator Warrington
regarding Huerta’s date of birth. That testimony reads as
follows:
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         Q[:] And were you familiar with . . . Huerta from pre-
      vious contacts with him?
         A[:] Just aware from previous law enforcement. We
      have a database that contains reports, any type of a con-
      tact with the individual, which we were able to determine.
      And based upon his current address . . . being that of . . .
      Huerta with the date of birth of [March] 1980.
         Q[:] And at that time then that would have made him a
      person over 19 years of age?
         A[:] Correct.
Huerta contends that trial counsel failed to make a founda-
tional objection to Investigator Warrington’s testimony and
that if counsel had done so, the objection would have been
sustained and the State would not have had any evidence to
prove that Huerta was 19 years of age or older at the time of
the offense.
   Upon our review, we conclude that the record is insuffi-
cient to address Huerta’s claim, because it does not contain
any indication of why counsel did not object to Investigator
Warrington’s testimony on foundational grounds or whether the
decision to not object was part of counsel’s trial strategy.

                 (b) Failure to Make Motion in
                  Limine Regarding Evidence
                   of Sexual Contact Between
                        Huerta and C.G.
   Huerta alleges that his trial counsel was ineffective in fail-
ing to file a motion in limine to exclude evidence of Huerta’s
sexual contact with C.G. at trial. Huerta acknowledges that his
trial counsel did object to such evidence during the trial, but
he argues that the issue “would have been better presented at a
motion in limine which would have given the Court more time
to determine if the sexual contact/intercourse between [Huerta]
and C.G. was inextricably intertwined to the sexual assault
of C.W.” Brief for appellant at 26. Essentially, Huerta argues
that had trial counsel presented his objection to this evidence
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to the district court prior to trial, such objection would have
been successful.
   Huerta’s allegation of ineffective assistance of counsel has
no merit. As we discussed more thoroughly above, the district
court did not err in admitting evidence of Huerta’s sexual
contact with C.G. into evidence, because such evidence was
relevant and was more probative than prejudicial. Had trial
counsel filed a motion in limine regarding his objection to this
evidence, such motion would have failed. Whether the objec-
tion was made prior to or during the State’s presentation of
evidence, the result would have been the same. The evidence
was properly admitted.
                     (c) Failure to Object to
                      Jury Instruction No. 7
   Huerta alleges that his trial counsel was ineffective in fail-
ing to object to jury instruction No. 7 and in failing to offer
NJI2d Crim. 3.0 as an alternative to jury instruction No. 7.
Huerta’s allegation of ineffective assistance of trial counsel
has no merit. As we discussed above, although the district
court did err in its giving of jury instruction No. 7 without
including the separate section informing the jury about the
effect of its findings, we concluded that such error was harm-
less. Accordingly, even if counsel had objected to the instruc-
tion or had offered an alternative instruction, such action
would not have had any effect on the ultimate outcome of
the trial. Huerta’s guilty verdict was not attributable to the
district court’s error or to his trial counsel’s failure to object.
Simply stated, Huerta cannot show he was prejudiced by
counsel’s actions.
                      (d) Failure to Object
                        to DNA Evidence
   Finally, Huerta alleges that his trial counsel was ineffective
in failing to properly object to the DNA evidence offered by
the State. Our record on appeal is sufficient to address Huerta’s
claim. The record before us does not support a claim of
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ineffective assistance of counsel regarding the failure to object
to the DNA evidence.
   Huerta argues that trial counsel should have made a rel-
evance objection to evidence that both his DNA and C.G.’s
DNA were found on a condom located in a trash can in
McGregor’s bedroom. He contends that this evidence is not
relevant to the question of whether he had sexual contact with
C.W. We disagree. Huerta concedes in his brief on appeal that
he had sexual contact with C.G. on the evening of April 3,
2016, when he states, “[T]here is no question that [Huerta]
had sexual contact/intercourse with C.G. that night. So no sur-
prise that [Huerta’s] DNA would be found in the semen on the
inside of that condom.” Brief for appellant at 18. This state-
ment is in direct contrast to Huerta’s statements to Investigator
Warrington that he did not have sexual contact with either C.W.
or C.G. In addition, it is in contrast to the position he seem-
ingly took at trial.
   Contrary to Huerta’s assertions on appeal, evidence that both
Huerta’s DNA and C.G.’s DNA were on the condom was rel-
evant to disprove Huerta’s original version of what happened
on April 3, 2016. In addition, as we discussed above, it was
relevant to support C.W.’s testimony about all of the events
which transpired on that date. Accordingly, any objection by
trial counsel to this evidence on relevance grounds would not
have been successful and trial counsel was not ineffective for
failing to raise an unsuccessful objection.
   Huerta also argues that trial counsel should have objected
to inconclusive DNA evidence which was found on the con-
dom where C.W.’s DNA was identified. Huerta argues that
the results of the DNA testing of that condom “were so incon-
clusive that they could cause the jury to speculate.” Brief for
appellant at 17. Based on our review of Bracht’s testimony
regarding the inconclusive DNA evidence, we conclude that
Huerta cannot show that he was prejudiced by the admission
of the testimony and that, as a result, he cannot demonstrate he
received ineffective assistance of counsel.
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   As we discussed above, Bracht testified that his analysis
of the condom indicated that C.W.’s DNA was present on one
side of the condom. Bracht did indicate that on the side of the
condom where C.W.’s DNA was present, Huerta was excluded
as a contributor of the sample. However, on the other side of
the condom, Bracht was unable to include or exclude anyone
as a contributor to the DNA present. He testified, “There is
just a lot going on. The mixture was too complex to really
determine how many people were in that mixture.” Bracht also
testified that the presence of semen was found on the condom
with C.W.’s DNA.
   We find that this evidence is relevant, in that it supports
both C.W.’s testimony and C.G.’s testimony that C.W. had
sexual intercourse in McGregor’s bedroom on the evening of
April 3, 2016. We also find that this evidence is more proba-
tive than prejudicial. However, we do note that the weight of
the evidence is decreased somewhat due to the inability to
identify the male contributor of the semen. We also note that
to some extent, Bracht’s testimony was exculpatory because
he was able to completely exclude Huerta as a contributor of
DNA as to one side of the condom. To the extent Bracht was
unable to give any identifying information about the other side
of the condom, there is no indication of any kind that sug-
gested that Huerta may be a contributor on that side or that
would lead the jury to insinuate that he was a contributor to
the mixture of DNA. We conclude that Huerta cannot show
that he was prejudiced by the admission of this DNA evidence.
As such, he cannot demonstrate that he received ineffective
assistance of trial counsel in this regard.

                      V. CONCLUSION
   Upon our review, we affirm Huerta’s conviction for first
degree sexual assault. As to Huerta’s claims of ineffective
assistance of trial counsel, we find that he was not denied
effective assistance of counsel when counsel failed to make
a motion in limine regarding evidence of sexual contact
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between Huerta and C.G., failed to object to jury instruction
No. 7, or failed to object to the DNA evidence presented by
the State. We find that the record is insufficient to review
whether trial counsel was ineffective when he failed to object
to Investigator Warrington’s testimony regarding Huerta’s date
of birth.
                                                   A ffirmed.

   Welch, Judge, concurring.
   While I concur in the result reached by the majority, I
respectfully disagree with the reasoning touching on the jury
instruction issue.
   In Middleton v. McNeil, 541 U.S. 433, 437, 124 S. Ct. 1830,
158 L. Ed. 2d 701 (2004), the U.S. Supreme Court held:
         In a criminal trial, the State must prove every ele-
      ment of the offense, and a jury instruction violates due
      process if it fails to give effect to that requirement. .
      . . Nonetheless, not every ambiguity, inconsistency, or
      deficiency in a jury instruction rises to the level of a due
      process violation. The question is “‘whether the ailing
      instruction . . . so infected the entire trial that the result-
      ing conviction violates due process.’” . . . “‘[A] single
      instruction to a jury may not be judged in artificial iso-
      lation, but must be viewed in the context of the overall
      charge.’” . . . If the charge as a whole is ambiguous, the
      question is whether there is a “‘reasonable likelihood that
      the jury has applied the challenged instruction in a way’
      that violates the Constitution.”
(Citations omitted.)
   In Middleton, the U.S. Supreme Court found that the com-
bined instructions were, at worst, ambiguous because they were
internally inconsistent. In response, the State of California
argued that the prosecutor cured any potential ambiguity by
arguing a correct statement of the law to the jury. The U.S.
Supreme Court noted that the Ninth Circuit “faulted the state
court for relying on the prosecutor’s argument, noting that
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instructions from a judge are presumed to have more influ-
ence than arguments of counsel.” Middleton, 541 U.S. at 438.
In response, the U.S. Supreme Court held:
      But this is not a case where the jury charge clearly
      says one thing and the prosecutor says the opposite; the
      instructions were at worst ambiguous because they were
      internally inconsistent. Nothing in Boyde [v. California,
      494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316
      (1990),] precludes a state court from assuming that coun-
      sel’s arguments clarified an ambiguous jury charge. This
      assumption is particularly apt when it is the prosecu-
      tor’s argument that resolves an ambiguity in favor of
      the defendant.
Middleton, supra (emphasis in original).
   I agree with the majority that the omission of NJI2d Crim.
3.0’s “Effect of Findings” from jury instruction No. 7 which
sets forth the State’s burden of proof as to each and every
element of the crime rendered that instruction, in isolation,
an erroneous jury instruction. When read as a whole with all
instructions, the district court properly instructed the jury that
the State had the burden of proof beyond a reasonable doubt
for the offense, but left out that the burden attached to each and
every element. I disagree with the majority that the combined
instructions “properly instructed that [the jury] had to find the
State proved each element of first degree sexual assault beyond
a reasonable doubt in order to return a guilty verdict.” Without
reference to the burden attaching to each and every element,
the instructions were ambiguous. That said, the instructions as
a whole, taken together with the prosecutors’ argument to the
jury which clearly delineated that the State’s burden attached
to each and every element of the offense, left no reasonable
likelihood that the jury applied the challenged instructions in
a way that violates the Constitution. As such, I concur with
the majority that the judgment of the district court should be
affirmed as to this issue, and I join with the court as to the
remainder of the majority opinion.
