CASSEL, Judge.
Following an evidentiary hearing, the district court entered an order denying James C. Rudnick's motion for postconviction relief. Rudnick appeals, arguing that structural error occurred and that his trial counsel and appellate counsel provided ineffective assistance. Because we find no error in the district court's findings and conclude that Rudnick was not denied effective assistance of trial or appellate counsel, we affirm.
The facts of this case are set out in more detail in the direct appeal from Rudnick's conviction, State v. Rudnick, No. A-06-625, 2007 WL 1977243 (Neb. App. July 10, 2007) (not designated for permanent publication).
The State charged Rudnick with four counts of first degree sexual assault of F.L. The prosecution was under Neb. Rev. Stat. § 28-319(1)(c) (Reissue 1995), when the actor is 19 years of age or older and the victim is at least 12 but less than 16 years of age. The operative information alleged that count I occurred from December 1, 1997, through January 31, 2001, and that the offenses charged in counts II, III, and Iv occurred from May 1, 2001, through July 22, 2002, with each count alleging a different room of Rudnick's home in which the act occurred.
On July 12, 2005, Rudnick filed a motion for discovery of medical records. It requested that F.L.'s counseling and therapy records be produced for an in camera inspection and a determination of relevancy by the court before production to Rudnick's counsel. On August 11, the court sustained the motion and ordered the State to produce to the court counseling records from APEX Therapy, Odyssey III, and Wholeness Healing Center. On August 30, the Antelope County Attorney sent a cover letter to those three agencies along with a copy of the court's August 11 order and a signed release from F.L. On October 17, the court entered an order following an in camera review of records from Odyssey III and of a psychological evaluation from APEX Therapy. The order made no mention of any records from Wholeness Healing Center.
On January 31, 2006, Rudnick filed a motion for discovery seeking, among other things, "[a]ny counseling records or statements to counselors not previously disclosed but were revealed at the deposition of [F.L.], in which [F.L.] indicated he first disclosed he was molested to a female counselor with an office on 13th and Benjamin Ave."
During the hearing on the motion, Rudnick's counsel discussed a fourth provider of counseling to F.L. The following colloquy occurred:
On January 31, 2006, Rudnick filed a motion in limine seeking an order prohibiting the State from mentioning, among other things, any evidence of prior alleged sexual relationships of Rudnick outside of the time period alleged in the information. During the hearing on the motion, the prosecutor argued that crimes concerning a continuing sex act with one person is not "404(2) evidence" and that "[t]here has to be some explanation to the jury how the sex started." See Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2008). Rudnick's counsel responded, "We see each sex act as different and individual, that those are completely separate allegations that happened in Arizona . . . ." The court overruled the motion in limine, finding that "this is not the normal prior bad acts that [§] 27-404 relates. This is part of the ongoing presentation between the victim and the defendant." During trial, Rudnick's counsel renewed his motion in limine on the issue, but the court overruled the objection and gave counsel a standing objection.
Todd Lancaster represented Rudnick at trial. According to the evidence, F.L. was sent from Mexico to Arizona to reside with his godparents when he was 9 years old. F.L. began elementary school in the third grade in Dateland, Arizona, and graduated from the eighth grade in 2001 when he was 14. Meanwhile, Rudnick managed a cotton farm where F.L.'s godparents worked. Rudnick, born in 1959, befriended F.L. and took F.L. to Nebraska a number of times. After F.L. graduated from the eighth grade, Rudnick took him to Rudnick's home in Tilden, Nebraska, where F.L. then lived with Rudnick, Rudnick's wife, and their two children. A sexual relationship between F.L. and Rudnick began when F.L. was 12 years old and continued until he turned 17. It included many instances of oral and anal sex. After F.L. disclosed his sexual relationship with Rudnick to authorities, the Nebraska State Patrol arranged a taped telephone conversation between F.L. and Rudnick in January 2005. The taped conversation was received into evidence, and it contained Rudnick's graphic admissions to numerous sexual encounters with F.L. Rudnick denied the truth of his incriminating statements, explaining that they were part of counseling F.L. to get him to open up about possible sexual abuse. A jury convicted Rudnick of all four counts.
With counsel different from trial counsel, Rudnick appealed. He assigned that trial counsel was ineffective in 10 specified ways, including failing to properly raise a defense that F.L. suffered from reactive attachment disorder, failing to call an expert to explain F.L.'s alleged reactive attachment disorder, and failing to fully explore F.L.'s true age. Rudnick also claimed that the district court erred in, among other things, not allowing defense counsel to review records of the counselors who treated F.L. or review the records of the counselor to whom F.L. first disclosed he was molested.
We affirmed Rudnick's convictions, but we concluded that certain of Rudnick's claims of ineffective assistance of counsel could not be addressed because the record on direct appeal was insufficient. See State v. Rudnick, No. A-06-625, 2007 WL 1977243 (Neb. App. July 10, 2007) (not designated for permanent publication).
Rudnick filed a motion for postconviction relief, alleging that he received ineffective assistance of trial counsel and appellate counsel in several respects. He alleged that trial counsel was ineffective in failing to (1) meaningfully investigate and challenge F.L.'s age in a statutory rape case and (2) sufficiently present evidence that F.L. suffered from an adjustment disorder or attachment disorder.
Rudnick alleged ineffective assistance of trial counsel—and ineffective assistance of appellate counsel for failing to raise trial counsel's ineffectiveness on appeal—when trial counsel (1) failed to pursue discovery of F.L.'s records at Wholeness Healing Center; (2) failed to pursue discovery of additional counseling records, move for a continuance of the trial once the identity of an additional counselor became known, and move for a mistrial based on prosecutorial misconduct when it became apparent the prosecutor failed to cooperate with the court's order of discovery; and (3) failed to meaningfully confront and impeach F.L. at trial with records of his school attendance.
Rudnick also claimed that he received ineffective assistance of appellate counsel when appellate counsel failed to raise on direct appeal the district court's ruling with respect to § 27-404(2) evidence as to other alleged acts of sexual conduct occurring between Rudnick and F.L. in Arizona.
On April 1, 2010, the district court held an evidentiary hearing on Rudnick's motion for postconviction relief. The postconviction court received into evidence the bill of exceptions from the trial, a certified copy of the court file, excerpts of F.L.'s pretrial deposition, F.L.'s grade reports, the deposition of Lancaster, the deposition of Pat Koury, reports from Associated Psychologists, and a videotape of an interview. Rudnick adduced testimony from Debra Baldwin-Betty, a licensed mental health practitioner, and Jacqui Schlund, the office manager and assistant director at Wholeness Healing Center. The State called as witnesses counselor Diane Martin and Dennis D. Ternus, the investigating officer in Rudnick's case.
Schlund testified that Baldwin-Betty was never employed at Wholeness Healing Center and that F.L. was not a client of Wholeness Healing Center, but that Baldwin-Betty had an office there as part of an office-sharing arrangement. In contrast, Baldwin-Betty testified that she was employed by and a co-owner of Wholeness Healing Center. Baldwin-Betty testified that she engaged in therapy with F.L. "maybe five times" in "2002, 2003" at Wholeness Healing Center. She did not remember any correspondence from the Antelope County Attorney's office about releasing F.L.'s therapy records. All she could remember about her diagnosis of F.L. was that it was adjustment disorder, which she had written in a letter to Rudnick's postconviction counsel. Baldwin-Betty testified that some children suffering from adjustment disorder lie, but that "everybody manifests it in different ways." Baldwin-Betty recalled that F.L. was very angry and did not want to live with Rudnick, but she had no recollection of a disclosure of a sexual assault.
Martin testified that F.L. was one of her clients when he was 17. She testified that on November 4, 2004, F.L. disclosed to her that Rudnick had tried to kiss him when F.L. was at a young age, but that F.L. denied at that time that anything beyond kissing had occurred. Martin testified that after this session, F.L. "spoke with his case worker about specific activity" and that on December 2, he told Martin of specific details of sexual activity. Martin testified that she diagnosed F.L. with adjustment disorder with anxiety and that lying is not something that she typically sees as a symptom of the disorder. Some of the manifestations that she sees are worry, anxiety, feelings of loss, sadness, difficulty sleeping, increased irritability, and anger. Martin testified that in February 2006, in response to a letter from the Antelope County Attorney, she sent to the court a summary which discussed F.L.'s relationship with Rudnick. Her February 20 letter stated in part, "During the 11-4-04 session, [F.L.] stated that sexual contact between [Rudnick] and himself occurred when [F.L.] was 8 years old and both he and [Rudnick] were living in Arizona. [Rudnick] tried to kiss him when they were in a vehicle." It also stated, "The sexual contact between [F.L.] and [Rudnick] started while in Arizona and continued in Nebraska until he was removed from the Rudnick home. When living in Tilden, the sexual contact would occur when no one else was home. This involved physical sexual touch."
Ternus testified that he interviewed F.L. on December 9, 2004, and that F.L. told him that there had been oral and anal penetration between F.L. and Rudnick. The Nebraska State Patrol placed a telephone call to Rudnick on January 18, 2005, and had F.L. speak with Rudnick. During the telephone call, Rudnick and F.L. discussed their various sexual contacts and discussed that the sex began when F.L. was 12 or 13 years old.
Koury, superintendent for a school district in Arizona, testified in a deposition that F.L. enrolled in 1995 and was a student at Dateland until he graduated from the eighth grade in the 2000-2001 school year. Koury worked with F.L. in baseball, 4-H, religious education classes, and "everything that required age." Koury testified that F.L. "was not officially in" an English as a Second Language (ESL) program "because he knew some English. But he did get assistance, like all the Hispanic kids did, by different staff members that worked with them on English-language development."
Lancaster testified in his deposition that the defense, according to Rudnick, was that the sexual contact never occurred. The defense was going to focus on the fact that the acts discussed by Rudnick during the taped telephone conversation did not happen and to explain to the jury that Rudnick "was saying those things in order to get [F.L.] to open up about his prior being sexually abused or abused by somebody else." Lancaster testified that Rudnick's explanation to him about why Rudnick was saying such things on the tape was
Lancaster believed that Martin's name came up as a therapist during the pretrial deposition of F.L., but Lancaster did not speak with Martin nor did he believe that he received or reviewed Martin's records. With regard to the trial's proceeding without Lancaster's seeing Martin's records, Lancaster testified, "There was nothing that I felt was going to be gained by trying to continue trial or waiting to get those records."
Lancaster described his efforts to verify F.L.'s age. He knew the date of birth on the birth certificate, and he knew what F.L. had testified was his date of birth in the deposition. Lancaster also looked at F.L.'s Antelope County juvenile court file and at various documents supplied by the Rudnicks. When asked what he did to challenge the State's proof of F.L.'s age, Lancaster explained that F.L. testified he was a certain age and that Lancaster did everything he could to convince the jury that F.L. was not a credible person. Lancaster did not believe that Rudnick ever disputed F.L.'s birth date, and Lancaster's conversations with Rudnick "never focused on the fact that he didn't think [F.L.] was the age he was saying he was." Lancaster further testified, "I don't recall . . . Rudnick ever saying to me or asking me, you know, is this something we should look into, about [F.L.'s] age. He felt [F.L.] was the age [F.L.] was saying [F.L.] was."
Lancaster testified that generally there is a problem in having a "bifurcated defense." As an example, Lancaster said somebody will come in and say that the defendant did not assault the victim, but if he did, it was self-defense, which Lancaster said was "difficult to sell to a jury. Because you can't be at one point saying I didn't do it, I didn't assault this person; but if I did assault them, I was doing it to protect myself or somebody else." Lancaster felt that there would be a problem with trying a case on two different strategies by saying on the one hand that these events never happened and that the victim is lying, but on the other hand saying that if Rudnick did have sex with F.L., F.L. was over 16. Lancaster did not think that he ever suggested to Rudnick that a better approach may be to take a closer look at F.L.'s age and defend it that way. Based on Lancaster's conversations with Rudnick, Lancaster thought that Rudnick would have fired him immediately if Lancaster had told Rudnick that the defense would be to not dispute that there was penetration because Rudnick wanted to defend on the basis that the sexual assaults never happened. But Lancaster admitted that he did not have a conversation with Rudnick about a defense that would concede penetration.
Lancaster did not think that he made any request to the Arizona school for F.L.'s school records. Lancaster testified that he believed he reviewed F.L.'s school records from Nebraska and that he "looked at the absences and the tardies." Lancaster admitted that it did not appear he impeached F.L.'s testimony about missing a lot of school, but he testified that "there were a lot of things I did impeach [F.L.] with. We had done a deposition, I had witnesses to come in and testify about their opinion if he was a truthful person."
On July 22, 2010, the district court entered a comprehensive order denying postconviction relief. The court found Rudnick's claim that F.L. was at least 16 years old when the sexual activity occurred to be without merit; thus, trial counsel was not deficient in failing to present such evidence. The court found that Rudnick suffered no prejudice by counsel's failure to pursue discovery of F.L.'s counseling records or to impeach F.L. at trial with records of his school attendance. The court determined that Rudnick had not established deficient performance by appellate counsel's failing to argue that the court erred in finding that § 27-404(2) did not apply to certain evidence and determined that trial counsel was not ineffective for not presenting evidence at trial that F.L. suffered from an adjustment disorder or an attachment disorder.
Rudnick timely appeals. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
Rudnick alleges that the district court erred in concluding that he did not receive ineffective assistance of trial counsel, and he assigns five ways in which trial counsel was ineffective.
Rudnick assigns that counsel performed deficiently in failing to (1) present at trial certain evidence showing that F.L. was too old to be a victim of "statutory rape"; (2) pursue pretrial discovery of, and utilize at trial, F.L.'s counseling records from Wholeness Healing Center; (3) pursue pretrial discovery of, and utilize at trial, F.L.'s counseling records from Martin; (4) obtain F.L.'s school attendance records prior to trial and impeach F.L.'s trial testimony through the attendance records; and (5) sufficiently present evidence at trial that F.L. suffered from an adjustment disorder or attachment disorder.
Rudnick alleges that the district court erred in concluding he did not receive ineffective assistance of appellate counsel. He contends that appellate counsel was ineffective in failing to assign and argue as error on direct appeal (1) trial counsel's ineffectiveness in failing to pursue pretrial discovery of, and utilize at trial, F.L.'s counseling records from Wholeness Healing Center; (2) the fact that Wholeness Healing Center records were never produced to the trial court, defense counsel, or Rudnick rose to the level of structural error; (3) trial counsel's ineffectiveness in failing to pursue pretrial discovery of, and utilize at trial, F.L.'s counseling records with Martin; (4) the fact that Martin's records were never produced to the trial court, defense counsel, or Rudnick rose to the level of structural error; (5) trial counsel's ineffectiveness in failing to obtain prior to trial F.L.'s school attendance records and to impeach F.L.'s trial testimony through the attendance records; and (6) the district court's pretrial ruling with respect to § 27-404(2) evidence, which permitted the State to present evidence at trial of sexual activity between Rudnick and F.L. in Arizona.
Rudnick claims that the district court erred in concluding that the fact that Wholeness Healing Center records and Martin's records were never produced to the trial court, defense counsel, or Rudnick prior to trial, in violation of the procedures set forth in State v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (1989), did not rise to the level of structural error.
Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Golka, 281 Neb. 360, ___ N.W.2d ___ (2011).
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. 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 the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision. State v. Golka, supra.
We first consider Rudnick's assignments of error claiming structural error. He asserts that the court erred in not finding structural error based on the fact that the records of Wholeness Healing Center and of Martin were not produced prior to trial.
We recite the procedural history on these records. In August 2005, the trial court sustained Rudnick's motion for discovery of medical records pursuant to State v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (1989), and ordered the State to produce records from APEX Therapy, Odyssey III, and Wholeness Healing Center to the court for an in camera review. Prior to trial, F.L. disclosed that he told a female counselor of sexual activity with Rudnick. Rudnick's trial counsel filed on January 31, 2006, another motion for discovery under Trammell, to request records from the female counselor. During the hearing on the motion, the prosecutor represented that he was not aware of any other therapy providers other than APEX Therapy, Odyssey III, and Wholeness Healing Center. The court advised that if there was another, it was subject to the same Trammell procedures previously filed, but that if the State was not aware of it, "then that's the end of that story." At a February 21 pretrial § 27-404(3) hearing, F.L. confirmed, at the State's prompting, that his counselor's name was "Diane" and that what he told her "was more detailed." At trial, F.L. testified that he saw Martin for counseling when he was living with a foster family.
In part, these matters are procedurally barred because they were or could have been litigated on direct appeal. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased. State v. Boppre, supra. On direct appeal, Rudnick asserted that the district court committed error when it refused to allow defense counsel to review the records of the counselors who had treated F.L. or the records where F.L. first disclosed the molestation. Because Rudnick's claims of structural error occurring during trial were or could have been raised on direct appeal, the claims are procedurally barred.
To the extent Rudnick's assignment of error is addressed to evidence first adduced during the postconviction hearing that Martin sent information concerning her counseling of F.L. to the court and that Baldwin-Betty counseled F.L.—which information does not appear to have been known at the time of the direct appeal—we agree with the district court that it does not amount to structural error. Structural errors are defined as those so affecting the framework within which the trial proceeds that they demand automatic reversal. State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007). The Nebraska Supreme Court noted in State v. Bjorklund, 258 Neb. 432, 504, 604 N.W.2d 169, 225 (2000):
The claimed error in this case does not fall within one of those specified categories. We decline Rudnick's invitation "to determine a collapse of the Trammell procedure is structural error." Brief for appellant at 26.
In contrast, trial errors are those which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt. State v. McKinney, supra. The district court determined that any error in this case was trial error because "it occurred in conjunction with [Rudnick's] inability to cast potential doubt upon F.L.'s credibility during the trial using the nondisclosed records." We agree that the alleged errors are properly characterized as trial errors.
The district court then assessed the alleged trial errors in the context of other evidence and determined that it was harmless beyond a reasonable doubt. We agree. We discuss each matter in turn.
Baldwin-Betty testified that she engaged in therapy with F.L. approximately five times in 2002 and 2003 at Wholeness Healing Center and that she had no recollection of a disclosure of a sexual assault, that she diagnosed F.L. with adjustment disorder, that untruthfulness can be a trait of the disorder, but that lying is human nature. Although the lack of a disclosure to this therapist and untruthfulness as a possible trait of F.L.'s disorder could have been brought up to challenge F.L.'s credibility, other evidence at trial revealed that F.L. did not disclose any sexual activity with Rudnick until he moved out of Rudnick's house and that other witnesses did not believe F.L. was honest. Maria Goede, a psychotherapist, testified at trial that she saw F.L. in April and May 2001, that he did not disclose any sexual abuse, and that she did not believe F.L. was truthful. F.L. admitted at trial that he did not tell Goede about his sexual contact with Rudnick and that he would have lied to her if she had asked. F.L. admitted that counselor Mark Hannappel asked him if he had been sexually abused and that F.L. told him "no." F.L. also admitted that he did not tell counselor Alfredo Ramirez that he was being sexually abused. We agree with the district court's reasoning that "[t]he addition of one more person to whom [F.L.] failed to report any sexual assault would not have made a significant impact upon the jury." Accordingly, we find no clear error in the district court's conclusion that the nonproduction of Wholeness Healing Center's records was harmless beyond a reasonable doubt.
Martin sent a two-page letter to the court in February 2006, but she did not send her records. The letter stated that F.L. initially denied any history of sexual abuse, but that on November 4, 2004, F.L. disclosed to her that Rudnick had tried to kiss F.L. when he was 8 years old. Then, on December 2, F.L. told Martin that sexual contact with Rudnick began in Arizona and continued in Nebraska. Rudnick argues that because F.L. testified that he told Martin that Rudnick molested him and Martin's records demonstrate that F.L. denied a number of times that any sexual contact occurred, the absence of Martin's records left Rudnick's counsel unable to impeach F.L. But Martin's records show that F.L. did eventually reveal that he engaged in sexual contact with Rudnick. Although any inconsistencies could have been used to challenge F.L.'s credibility at trial, given all other evidence presented which reflected negatively on F.L.'s credibility, any error in the nonproduction of Martin's records was harmless.
In order to raise the issue of ineffective assistance of trial counsel where appellate counsel is different from trial counsel, a defendant must raise on direct appeal any issue of ineffective assistance of trial counsel which is known to the defendant or is apparent from the record, or the issue will be procedurally barred on postconviction review. State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011).
Although two of Rudnick's claims of ineffective assistance of trial counsel are barred by this rule, we reach them later in the context of alleged ineffective assistance of appellate counsel. An attorney different from trial counsel represented Rudnick on direct appeal, and Rudnick alleged many instances of ineffective assistance of trial counsel. He did not, however, allege that trial counsel provided ineffective assistance when he failed to obtain and use F.L.'s school attendance records and when he failed to pursue pretrial discovery of, and utilize at trial, F.L.'s counseling records from Wholeness Healing Center and from Martin. Thus, these claims of ineffective assistance of trial counsel are barred by the procedural default rule. We note, however, that these same issues are raised in terms of ineffective assistance of appellate counsel for failing to assert them on direct appeal, and we discuss them at the appropriate point in our analysis.
We do consider two issues of alleged ineffective assistance of trial counsel which are not procedurally barred, relating to F.L.'s age and evidence that F.L. had an adjustment or attachment disorder. On direct appeal, we concluded that the record was insufficient to review Rudnick's claims that counsel was ineffective in failing to fully explore F.L.'s true age and in failing to raise a defense that F.L. suffered from reactive attachment disorder or to call an expert to explain the disorder. Rudnick has realleged similar claims in his postconviction appeal that we can now address: that trial counsel failed to present certain evidence showing that F.L. was too old to be a victim of "statutory rape" and that counsel failed to sufficiently present evidence at trial that F.L. suffered from an adjustment or attachment disorder.
In order to establish a right to relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense in his or her case. State v. Sidzyik, supra. The two prongs of the ineffective assistance of counsel test, deficient performance and prejudice, may be addressed in either order. Id.
In demonstrating prejudice, a defendant claiming ineffective assistance of counsel must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. Jim, 278 Neb. 238, 768 N.W.2d 464 (2009). When considering whether trial counsel's performance was deficient, there is a strong presumption that counsel acted reasonably.
Rudnick argues that he received ineffective assistance of trial counsel when counsel failed to present evidence tending to prove F.L. was too old to be a victim of "statutory rape."
Rudnick first points to a birth certificate issued on May 23, 1989, which F.L. used to attend elementary school at age 9. Rudnick asserts that "the conclusion is that F.L. must have been born in 1980." Brief for appellant at 15. This conclusion, however, completely ignores the fact that the certificate of birth reflects a date of birth in August 1986.
F.L. testified that he was born in July 1986, that he first came to the United States when he was in the third grade, and that he was "[n]ine, almost ten I think it was. It was that summer." His school records show that he was admitted to the third grade in August 1995, which would corroborate F.L.'s testimony that he was born in 1986 and that he was 9 years old and in the third grade when he arrived in Arizona. We conclude that trial counsel's representation of Rudnick was not deficient for not advancing the hypothetical that F.L. was born in 1980.
Rudnick next points to evidence that he claims tends to prove that F.L. was born in 1985. He begins with the date of birth of "Tatiana"—the granddaughter of F.L.'s godparents with whom F.L. lived in Dateland. School records show that Tatiana was born in October 1988. F.L. testified in his deposition that she was 3 years younger than F.L. Thus, Rudnick argues that F.L. must have been born in 1985, which could make him at least 16 on the earliest date of a possible crime as alleged in counts II through IV, i.e., May 1, 2001.
But F.L. also testified in his pretrial deposition that Tatiana was 7 years old when he first met her and that he was 9 years old when he arrived in the United States. Such testimony shows a 2-year age difference, which would mean that F.L. was born in 1986—just as he testified and as shown on his birth certificate. We agree with the district court's reasoning that if F.L. was born in August 1986 and Tatiana was born in October 1988, that every year between August and October, F.L. would appear to be 3 years older that Tatiana. The court's factual findings on this issue are not clearly erroneous.
Rudnick argues that because school records showed F.L. attended seventh grade in Dateland in 1999 and because F.L. testified in a pretrial evidentiary hearing that he was 14 years old prior to attending the seventh grade at Dateland, F.L. must have been born in 1985.
At trial, F.L. testified that he thought he moved to Aztec, Arizona, when he "might have been almost the seventh grade." The following question and answer ensued: "Q. So what age do you think? In fourth grade you were 10, fifth grade probably been 11? A. Probably around 14." Following the trail of logic from the question, if F.L. was 11 in the fifth grade, he would have been 13—not 14—in the seventh grade. Again, this evidence would support a date of birth in 1986.
Rudnick also contends that F.L.'s proficiency in English demonstrates that he was too old to be a victim of "statutory rape." Rudnick bases this argument on F.L.'s testimony that he came to the United States to learn English and on the fact that Dateland school records do not show that F.L. was an ESL student, which Rudnick contends "strongly suggests F.L. must have learned English elsewhere before he enrolled in school at Dateland. By implication, F.L. must have been older than nine when he enrolled at Dateland." Brief for appellant at 17. F.L. testified that he could not speak English when he came to the United States, but that he had a bilingual teacher. Similarly, Koury testified that even though F.L. was not officially in an ESL program, he received assistance "like all the Hispanic kids did." The district court found that there was no evidence that F.L. learned English elsewhere or that he was older than 9 when he enrolled. We agree with the district court, and its factual findings are not clearly erroneous.
Finally, Rudnick challenges F.L.'s age based on the age of "Samu," a boy who lived with F.L. and his godparents for a period of time. School records show that Samu was born in 1982, and Rudnick infers that Samu's age in relation to F.L.'s age means that F.L. was born in either 1984 or 1985. F.L. testified in a pretrial deposition that he was younger than Samu, that F.L. did not "know exactly" Samu's age, that he knew Samu for "maybe" 2 or 3 years, and that Samu left when Samu was in the eighth grade. Rudnick argues, "By inference, there is only a few years' difference between `Samu's' date of birth and F.L.'s date of birth." Brief for appellant at 18. Rudnick reasons that if Samu left in the eighth grade and F.L. knew him for 2 or 3 years, Samu must have been in the fifth or sixth grade when F.L. was in the third grade. However, F.L.'s testimony was hardly concrete. Further, the school records used during Koury's deposition show that Samu was in the eighth grade in 1996 and that F.L. was in the eighth grade in 2000. That 4-year difference would tend to support a date of birth of 1986 for F.L. We conclude that this argument does not support a claim that trial counsel performed deficiently.
Rudnick argues that trial counsel provided ineffective assistance of counsel by failing to sufficiently present evidence that F.L. suffered from an adjustment disorder or attachment disorder. Baldwin-Betty and Martin each testified that they diagnosed F.L. with adjustment disorder. Rudnick argues that he was prejudiced by counsel's failure to present such evidence because untruthfulness and manipulation are symptoms of the disorder.
Baldwin-Betty testified that some children suffering from adjustment disorder lie, but that "everybody manifests it in different ways." Martin testified that lying is not something that she typically sees as a symptom of adjustment disorder. Such testimony does not support Rudnick's assertion that untruthfulness is a typical symptom of the disorder. Further, as the State points out, Rudnick's trial counsel called several witnesses to testify that they did not believe that F.L. was a truthful person.
Rudnick also claims that he was prejudiced by counsel's failure to adduce evidence of F.L.'s adjustment disorder because it would have made Rudnick's explanation about the taped telephone conversation—that the sexually graphic discussion was therapeutic—more credible. However, Martin testified that having a sexually graphic conversation to get someone to "open up" would not be something that someone like Martin would do with an adolescent who was suffering from an adjustment disorder. Baldwin-Betty also testified that she would never engage in the type of conversation that Rudnick engaged in with F.L. because that is not how she is trained as a therapist and she "would never include [her]self, because that's not real[i]ty."
The district court stated that it was "not convinced that evidence of F.L. suffering from [a]djustment [d]isorder would have diminished his credibility in the eyes of the jury, nor would it have made the defendant's testimony more credible." We agree. We conclude that Rudnick's ineffective assistance of trial counsel claim fails because Rudnick did not demonstrate a reasonable probability that the result of the trial would have been different if counsel had adduced evidence of F.L.'s adjustment disorder.
When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced the defendant. State v. Golka, 281 Neb. 360, ___ N.W.2d ___(2011). In doing so, courts begin by assessing the strength of the claim appellate counsel purportedly failed to raise. Id. Counsel's failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal. Id.
When the case presents layered ineffectiveness claims, the court determines the prejudice prong of appellate counsel's performance by focusing on whether trial counsel was ineffective under the Strickland test. State v. Jim, 278 Neb. 238, 768 N.W.2d 464 (2009). Under the Strickland test, a court determines (1) whether counsel's performance was deficient and (2) whether the deficient performance actually prejudiced the defendant in making his or her defense. State v. Jim, supra. If trial counsel was not ineffective, then the defendant suffered no prejudice when appellate counsel purportedly failed to bring an ineffective assistance of trial counsel claim. Id.
We first dispose of Rudnick's claim that appellate counsel was ineffective for not assigning the nonproduction of records from Wholeness Healing Center or Martin as structural error. Because we concluded above that any error in that regard was trial error rather than structural error, appellate counsel was not ineffective in failing to raise the issue. see State v. Golka, supra (failure to raise issue on appeal could be ineffective assistance only if there is reasonable probability that inclusion of issue would have changed result of appeal).
We further conclude that appellate counsel was not ineffective for failing to assign as error that trial counsel provided ineffective assistance of counsel for not pursuing discovery of F.L.'s records from Wholeness Healing Center and from Martin. The records from Wholeness Healing Center would have showed that F.L. had an adjustment disorder and that F.L. did not disclose any sexual activity with Rudnick. Martin's records would show that she diagnosed F.L. with adjustment disorder and that she met with F.L. several times before he disclosed a kiss, but nothing more. F.L. later talked about the abuse in more detail with Martin. Above we concluded that trial counsel did not provide ineffective assistance by failing to present evidence of F.L.'s adjustment disorder. As discussed earlier, F.L. admitted that he did not disclose any abuse to several other counselors and diminishing F.L.'s credibility was the focus of the defense. We conclude that Rudnick has failed to show that any deficient performance by his trial counsel in failing to pursue these records actually prejudiced Rudnick in making his defense. In other words, Rudnick failed to establish that he was prejudiced by trial counsel's performance and thus, trial counsel was not ineffective. Accordingly, Rudnick suffered no prejudice by appellate counsel's failure to assign ineffective assistance of trial counsel in this regard. See State v. Jim, supra (if trial counsel was not ineffective, then defendant suffered no prejudice when appellate counsel purportedly failed to bring ineffective assistance of trial counsel claim).
Rudnick argues that his trial counsel was ineffective in failing to confront and impeach F.L. with his record of school attendance in order to refute F.L.'s claims at trial that he missed "a lot" of school because he was engaging in sexual activity with Rudnick.
At trial, F.L. testified that he stayed home from school in the mornings, usually missing first or second periods, and ended up having sex with Rudnick on those occasions. He also testified that he would stay home from school due to "bad headaches," but then have sex with Rudnick, and that he "usually missed first or second period at school, or sometimes just come at lunch time for school. It shows on the records of school. It shows on there [he] missed a lot of school."
F.L. was asked to "put a number on how many times" he missed morning classes and answered, "I don't know. I don't know exactly. I wasn't to the limit, because I checked it all the time." F.L. thought that "the limit" was "[a]bout nine maybe" and elaborated "that's not nine absences per class, but maybe just full days. I don't know for sure though." The school records received at the evidentiary hearing show that F.L. had four absences during the ninth grade, five absences during the tenth grade, and four tardies during the tenth grade. However, because F.L. was never able to "put a number on" his absences and tardies, we agree with the district court that "[i]t is not at all clear . . . that the school records would have had any impeachment effect, whatsoever." The district court further reasoned:
The district court's factual findings are not clearly wrong. We conclude that there is not a reasonable probability that the outcome of Rudnick's trial would have been different but for trial counsel's failure to impeach F.L. with school records. And because trial counsel's performance did not prejudice Rudnick, appellate counsel could not have been ineffective in failing to raise the issue on appeal.
Finally, Rudnick argues that his appellate counsel performed deficiently when he failed to assign and argue as error on appeal the district court's pretrial ruling regarding the admissibility at trial of alleged acts of sexual conduct that occurred between Rudnick and F.L. in Arizona. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), and § 27-404(2), and the trial court's decision will not be reversed absent an abuse of discretion. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).
Section 27-404(2) provides:
Thus, the statute prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. See State v. Baker, supra. But evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under § 27-404(2). State v. Baker, supra. Bad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not part of the coverage under § 27-404(2). State v. Baker, supra. An appellate court's analysis under § 27-404(2) considers (1) whether the evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith; (2) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice; and (3) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted. State v. Baker, supra.
Evidence of sexual contact between Rudnick and F.L. in Arizona was within the "`coherent picture of the facts of the crimes charged' which the State was entitled to present." See State v. Baker, 280 Neb. at 760, 789 N.W.2d at 709. Because such evidence was not offered to prove that Rudnick had the propensity to act in a certain way, the district court did not abuse its discretion in overruling Rudnick's motion in limine and objection to such evidence at trial. Accordingly, Rudnick suffered no prejudice by appellate counsel's failing to assign and argue this issue on appeal.
We have reviewed the district court's factual findings for clear error and found none. We conclude that Rudnick failed to show that he was prejudiced by any deficient performance of trial or appellate counsel. Because there was no structural error and Rudnick failed to establish that counsel was ineffective, the district court did not err in denying Rudnick's motion for postconviction relief. Accordingly, we affirm.
AFFIRMED.
