Opinion
No. A-11-242.
12-20-2011
STATE OF NEBRASKA, APPELLEE, v. JUAN F. HEREDIA, APPELLANT.
Chad M. Brown, Laird T. Moore, and Patrick A. McCormick for appellant. Jon Bruning, Attorney General, and George R. Love for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Douglas County: W. RUSSELL BOWIE III, Judge. Affirmed.
Chad M. Brown, Laird T. Moore, and Patrick A. McCormick for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
INBODY, Chief Judge, and SIEVERS and PIRTLE, Judges. PIRTLE, Judge.
INTRODUCTION
Juan F. Heredia appeals his conviction of first degree sexual assault in the district court for Douglas County. Based on the reasons that follow, we affirm.
BACKGROUND
On November 10, 2009, the State filed an information charging Heredia with "firest [sic] degree sexual assault on a child," a violation of Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2008). Heredia pled not guilty. A bench trial was held on December 7, 2010. Before the trial started, the State moved to sequester the witnesses, which the trial court granted. The State also sought to amend the information by deleting the word "attempt" from the charge and changing the offense to a violation of Neb. Rev. Stat. § 28-319.01(1)(b) (Cum. Supp. 2010), thereby increasing the penalty from a Class II felony to a Class IB felony. The court allowed the State to delete the word "attempt" from the information but did not allow a change of the charging statute unless Heredia sought a continuance. Heredia's counsel declined to continue the case.
The victim, R.G., was the first witness to testify for the State. R.G. testified that on September 14, 2009, she went with Heredia to a junk yard and then went to get something to eat before returning to R.G.'s home. She testified that Heredia was a friend of her mother and that R.G. had known him for 8 or 9 years. R.G. was 14 years old at the time. After Heredia and R.G. arrived home, R.G.'s mother left to get something to eat for herself and R.G. went to the bathroom. R.G. testified that when she came out of the bathroom, Heredia asked R.G. to "suck his dick." R.G. testified that she told him "no," but after Heredia asked her five or six times, she gave in and said "yes." R.G. testified that she then performed oral sex on Heredia in the living room. R.G. specified that Heredia's penis went inside her mouth. R.G. testified that she performed oral sex on Heredia for about 5 minutes at which time her mother arrived home and walked in the room where they were located. R.G. testified that she stood up and adjusted her bra strap, while Heredia pulled up his pants and tried talking to her mother. R.G. testified that Heredia offered to help her mother get a car and pay for her cellular telephone if she did not get him in trouble. R.G. stated that her mother was very angry and was cussing. R.G.'s mother then left and walked to a gas station to call the police.
Heredia's counsel cross-examined R.G. about the length of Heredia's penis, whether he was circumcised, whether his penis had a rash on it, and whether she noticed the birthmark on his penis. When R.G. was first asked if Heredia was circumcised, she stated, "Not that I know of." R.G.'s testimony was then impeached with her deposition testimony in which she stated that she knew what circumcision means and that Heredia was not circumcised. R.G. then explained that after her deposition, the prosecutor showed her pictures of a circumcised penis and an uncircumcised penis and now she is not sure if Heredia was circumcised or not because he had "a little skin still on the top" of his penis. Heredia's counsel asked R.G. what circumcision means and how she learned about it. R.G. explained circumcision and stated that she learned about it in school. On redirect, R.G. specified that she learned about circumcision in a human growth class that she took in middle school and was also taking at the time of trial.
R.G.'s mother testified that when she came home on the day of the incident, she walked in the house and Heredia jumped up from the couch and R.G. adjusted her clothing and wiped her mouth. R.G.'s mother testified that as she got closer, she saw Heredia's erect penis sticking out of his pants. R.G.'s mother testified that she started yelling and cussing at Heredia and asking him what was going on. Heredia told her he was sorry and asked her not to call the police. R.G.'s mother testified that Heredia offered her money, a car, and a telephone if she would not call the police. She stated that she got her cellular telephone, but the battery was not charged, so she went to her neighbor's house to ask to use the telephone to no avail. R.G.'s mother then left and walked to a gas station and called the police.
Omaha police officer Todd Coniglio testified that he was one of the officers that responded to a call to R.G.'s mother's residence on the day in question. Coniglio stated that when he arrived at the residence, he first spoke with R.G.'s mother, who was furious and was yelling. He then spoke with R.G., who told him she had performed oral sex on Heredia. Coniglio testified that based on the information provided by R.G. and her mother about Heredia, he was able to verify that Heredia's date of birth was in November 1959.
The State rested. Heredia called Dr. Loretta Tibbles, who saw Heredia in her family practice clinic on July 24 and August 31, 2009. Tibbles testified that on July 24, she treated Heredia for a chronic rash on his penis. Tibbles testified that she examined him and that he had a red rash on the end of his penis which she diagnosed as a yeast infection. She testified that the skin on the penis was irritated and that it would be possible for him to engage in sexual activity, but it would be painful. Tibbles testified that the August 31 visit was a followup visit for Heredia's diabetes and that at that time, Heredia complained of an irritation on his scrotum and thighs. Tibbles testified that she could not say if Heredia still had a rash on his penis because she did not examine his genitals at the August 31 visit.
Tibbles testified that she believed that Heredia was circumcised. Tibbles also testified that in her opinion, it is not difficult to tell the difference between a circumcised penis and a noncircumcised penis. On cross-examination by the State, Tibbles testified that in her opinion, if a person has been sexually active with multiple partners, that person would know the difference between a circumcised penis and an uncircumcised penis and a person that has not been sexually active may not know the difference.
Heredia's wife testified that she believes the allegation of sexual assault against Heredia is groundless and that R.G. and her mother fabricated the story because R.G.'s mother is angry with Heredia's wife. R.G.'s mother had been investigated by Child Protective Services and blamed Heredia's wife for making the initial call.
Heredia's wife also testified that Heredia has had a chronic infection of his genitals since 2006. She testified that he had a rash on the tip of his penis on the day of the incident involving R.G. She testified that during this time period, she and Heredia were not having sexual intercourse often because it was painful for Heredia. She also testified that Heredia is circumcised. Heredia's wife further testified that Heredia has a mole or birthmark on his penis that protrudes from the skin and is readily visible.
The defense recalled R.G and asked her if her encounter with Heredia was her first sexual experience. The State objected to the question on the basis of Neb. Rev. Stat. § 27-412 (Cum. Supp. 2010), and the trial court sustained the objection, concluding that the defense had not given 15 days' notice of its intent to inquire into the sexual history of the victim as required by § 27-412.
Following trial, the trial court entered an order finding Heredia guilty of first degree sexual assault on a child. The court subsequently sentenced Heredia to 4 to 6 years' imprisonment.
ASSIGNMENTS OF ERROR
Heredia assigns (1) that he is entitled to a new trial based on prosecutorial misconduct, (2) that the trial court erred in allowing the State to amend the information, (3) that the trial court erred in allowing evidence of Heredia's immigration status, (4) that the trial court erred in finding there was sufficient evidence to sustain a conviction, (5) that he was denied his right to fully cross-examine his accuser and was therefore denied his right of confrontation, and (6) that his trial counsel was ineffective.
STANDARD OF REVIEW
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009). Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Id. Any conflicts in the evidence or questions concerning the credibility of witnesses are for the finder of fact to resolve. Id. A conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. Id.
ANALYSIS
Prosecutorial Misconduct.
Heredia asserts he is entitled to a new trial based upon prosecutorial misconduct. Specifically, he contends that the prosecutor committed misconduct when she moved to amend the information, violated the sequestration order, stated during opening statements that the evidence would show Heredia's pants were down during the incident at issue and then tried to coax the witnesses to testify in a way that matched the prosecutor's version of the story, and questioned Heredia's wife about Heredia's immigration status.
A party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to such prosecutorial misconduct. State v. Wilson, 252 Neb. 637, 564 N.W.2d 241 (1997). Further, when a party has knowledge during trial of irregularity or misconduct, the party must timely assert his or her right to a mistrial. One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error. State v. Hudson, 268 Neb. 151, 680 N.W.2d 603 (2004).
In the present case, Heredia made no motion for mistrial at any time during the trial. By not moving for a mistrial, Heredia failed to preserve any error created by any alleged misconduct by the prosecutor. State v. Wilson, supra. Heredia has waived appellate review of his claim of prosecutorial misconduct. Accordingly, this assignment of error is without merit.
Amendment to Information.
Heredia assigns that the trial court erred in allowing the State to amend the information at trial. The front page of the original information charged Heredia with "firest [sic] degree sexual assault on a child" and the language in the information alleged that on September 14, 2009, Heredia, "being a person of nineteen years of age or older, did then and there attempt to subject [R.G.], a person of at least twelve years of age but less than sixteen years of age, to sexual penetration." The information indicated that the charge was a violation of § 28-319(1)(c), a Class II felony. Before trial commenced, the State sought to amend the information by deleting the word "attempt" from the charge and to change the statute charging the offense to a violation of § 28-319.01(1)(b), which would increase the penalty to a Class IB felony. The State explained that the word "attempt" was included in the information inadvertently. Heredia's counsel objected to any changes.
The court allowed the State to delete the word "attempt" from the information but did not allow a change of the charging statute from a Class II felony to a Class IB felony, concluding that such change would prejudice Heredia, unless Heredia sought a continuance of the trial. Heredia's counsel declined to ask for a continuance. Heredia was arraigned on the amended information and pled not guilty.
There is additional confusion created in the fact that the information states on the front page that Heredia was charged with first degree sexual assault on a child, which would be a violation of § 28-319.01(1)(b). However, the parties agree that Heredia was charged with a violation of § 28-319(1)(c), which is first degree sexual assault, a Class II felony. Heredia's only argument on appeal in regard to the information is that the State should not have been allowed to remove the word "attempt" from the charge.
A trial court, in its discretion, may permit a criminal information to be amended at any time before verdict or findings if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced. State v. Banks, 278 Neb. 342, 771 N.W.2d 75 (2009).
The amendment in the instant case did not charge an additional or different offense. The original information indicated that the charge was a violation of § 28-319(1)(c), a Class II felony. Although the front page of the information stated the charge was first degree sexual assault on a child, it did not include the word "attempt" and the information does not reference Neb. Rev. Stat. § 28-201 (Reissue 2008), which provides the penalty ranges for criminal attempt.
Further, Heredia's substantial rights were not prejudiced. The information indicated that Heredia was being charged with a Class II felony, and after the amendment, the crime charged remained a Class II felony. Heredia argues that up to the day of trial, he thought he was charged with attempted first degree sexual assault on a child, which is a Class III felony with a penalty range of 1 to 20 years' imprisonment. A Class II felony has a penalty range of 1 to 50 years. See Neb. Rev. Stat. § 28-105 (Reissue 2008). As previously stated, the information always stated that Heredia was being charged with a Class II felony. Also, Heredia knew throughout pretrial proceedings that R.G. was alleging that sexual penetration actually occurred, not that it was attempted. In addition, Heredia's substantial rights were not prejudiced by the amendment because he was sentenced to 4 to 6 years' imprisonment, which is in the range for a Class III felony. We conclude that the trial court did not err when it allowed the State to amend the information.
Evidence of Heredia's Immigration Status.
Heredia next assigns that the trial court erred in allowing the State to cross-examine Heredia's wife about his immigration status. He contends that such evidence should have been excluded under Neb. Rev. Stat. § 27-403 (Reissue 2008), because its probative value is substantially outweighed by the danger of unfair prejudice. He argues that evidence of the fact that he is an illegal alien might cause the trier of fact to be biased against him independent of the evidence presented on the elements of the crime.
During cross-examination of Heredia's wife, the State asked her if it would be fair to say that she would do anything for her husband, to which she responded, "Yes." The State then asked her if she would harbor him from authorities as being an illegal alien. Heredia's counsel's objection was overruled, and Heredia's wife responded, "If you want to look at it that way, yes." She admitted that Heredia is not a legal citizen and that she had never notified authorities that he is an illegal alien, but stated that she filled out an application for citizenship for him in 2006. The State then asked Heredia's wife additional questions about the citizenship process.
Although Heredia's counsel made several objections during this line of questioning, he never made an objection on the ground that such evidence was unfairly prejudicial, as Heredia now contends. On appeal, a defendant may not assert a different ground for his or her objection to the admission of evidence than was asserted to the trial court. State v. Balvin, 18 Neb. App. 690, 791 N.W.2d 352 (2010). An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground. Id.
Because Heredia has raised a different ground for his objection to his wife's cross-examination testimony than was presented to the trial court, he has not preserved this issue for appellate review.
Further, it appears the purpose of cross-examining Heredia's wife on the issue of Heredia's immigration status was not to show that Heredia is an illegal alien, but, rather, to show that Heredia's wife would do anything to protect Heredia, thereby creating doubt as to the reliability and truth of her testimony. The particular bias and truthfulness of a witness are subject to attack on cross-examination to judge credibility. When the object of the cross-examination is to collaterally ascertain the accuracy or credibility of the witness, some latitude should be permitted, and the scope of such latitude is ordinarily subject to the discretion of the trial judge, and, unless abused, its exercise is not reversible error. State v. Ballard, 237 Neb. 729, 467 N.W.2d 662 (1991). Cross-examination is proper as to anything tending to affect the accuracy, veracity, or credibility of the witness. Id. The trial court did not abuse its discretion in allowing the State to cross-examine Heredia's wife about Heredia's immigration status. This assignment of error is without merit.
Right of Confrontation.
Heredia next argues that he was denied his right to fully cross-examine his accuser and was therefore denied his right of confrontation as provided in the Sixth Amendment to the U.S. Constitution. Specifically, he contends that the State "opened the door" for Heredia to inquire about R.G.'s knowledge of circumcision and her past sexual behavior and that the court denied his right of confrontation when it did not allow him to question R.G. on such issues.
The defense in its case called R.G. to testify and asked her if the incident with Heredia was her first sexual encounter. The State objected to the question on the basis of § 27-412, which prohibits evidence offered to prove that a victim engaged in other sexual behavior in cases involving sexual misconduct. The trial court sustained the objection, concluding that Heredia had not given 15 days' notice of his intent to inquire into the sexual history of the victim as required by § 27-412.
There is no merit to Heredia's contention that he should have been allowed to question R.G. about her knowledge of circumcision, as she was questioned about this at length on cross-examination by Heredia's counsel. On cross-examination, R.G. was asked if Heredia was circumcised to which she responded, "Not that I know of." R.G.'s testimony was then impeached with her deposition testimony in which she stated that she knew what circumcision means and that Heredia was not circumcised. R.G. then explained that after her deposition, the prosecutor showed her pictures of a circumcised penis and an uncircumcised penis and after viewing the pictures, she was not sure if Heredia was circumcised or not because he had "a little skin still on the top" of his penis. Heredia's counsel asked R.G. what circumcision means and how she learned about it. R.G. explained circumcision and stated that she learned about it in school. On redirect, R.G. specified that she learned about circumcision in a human growth class that she took in middle school and was also taking at the time of trial.
In regard to Heredia's contention that he should have been allowed to inquire about R.G.'s past sexual behavior, he argues that the State "opened the door" for such questions based on testimony from Tibbles. "Opening the door" is simply a contention that competent evidence which was previously irrelevant is now relevant through the opponent's admission of other evidence on the same issue. State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999).
Tibbles, a witness called by Heredia, testified that in her opinion, it is not difficult to tell the difference between a circumcised penis and a noncircumcised penis. On cross-examination by the State, Tibbles testified that in her opinion, if a person has been sexually active with multiple partners, that person would know the difference between a circumcised penis and an uncircumcised penis and a person that has not been sexually active may not know the difference. Heredia also cites to testimony by R.G., elicited by the State, that she learned about circumcision in a human growth class in school. It is this testimony that Heredia contends "opened the door" for Heredia to inquire about R.G.'s past sexual behavior. Heredia contends that such testimony permitted the fact finder to draw an inference that R.G. did not have sufficient prior sexual experiences to distinguish between a circumcised penis and an uncircumcised penis. Heredia alleges that the evidence he sought from R.G. would have made this inference less probable.
An accused's constitutional right of confrontation is violated when either (1) he or she is absolutely prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of a witness, or (2) a reasonable jury would have received a significantly different impression of the witness' credibility had counsel been permitted to pursue his or her proposed line of cross-examination. State v. Banks, 278 Neb. 342, 771 N.W.2d 75 (2009). Although the main and essential purpose of confrontation is the opportunity of cross-examination, trial judges retain wide latitude insofar as the confrontation clause is concerned to impose reasonable limits on such cross-examination based upon concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. Id.
We conclude that the State did not "open the door" to R.G.'s past sexual behavior and that Heredia's right of confrontation was not violated in either of the ways set forth above. Heredia cross-examined R.G. on her knowledge of circumcision in general and confronted her regarding her inconsistent statements about her knowledge of Heredia being circumcised. Exploring R.G.'s past sexual behavior would not add or detract from her credibility on this issue.
We conclude that the trial court did not err when it sustained the State's objection to Heredia's questioning about R.G.'s sexual past on cross-examination and that limiting such cross-examination did not violate Heredia's constitutional right of confrontation.
Under this same assignment of error, Heredia argues that the prosecution violated the sequestration order and that the trial court violated his right of confrontation when it prevented Heredia's counsel from cross-examining R.G. about the violation. Before trial began, the State asked that any potential defense witnesses be sequestered because the prosecutor did not receive a witness list from Heredia's counsel. The court ordered that all witnesses would be sequestered. During the State's direct examination of R.G., the prosecutor asked the trial court for a break. Soon after that break, R.G. asked the court for another break, explaining that she was "really, really nervous." Immediately following the second break, the prosecutor stated to the court that during the break, she was in the hallway speaking with R.G. and her mother and that Heredia's counsel accused her of violating the sequestration order. The prosecutor denied violating the sequestration order. Heredia's counsel then stated that he saw the prosecutor standing in between R.G. and her mother, who were about 5 feet apart, talking to them. Heredia's counsel stated that based on what he heard, R.G. did not want to continue with her testimony and the prosecutor was trying to convince her to continue. Heredia's counsel stated that he intervened because he did not want R.G. and her mother talking to each other. Heredia's counsel stated that he did not want the witnesses in the same proximity talking about the case, but that he was not moving the court to take any action. When the cross-examination of R.G. continued, Heredia's counsel began asking R.G. questions about what occurred during the break, and the trial court interrupted and told counsel to ask questions about the incident in September 2009.
We conclude that there is no merit to Heredia's argument that his right to confrontation was violated when the court did not allow Heredia's counsel to cross-examine R.G. about the hallway conversation. As previously set forth, the prosecutor and Heredia's counsel both explained on the record what happened in the hallway during the break. Heredia's counsel did not move for a mistrial, and there was no offer of proof made as to what R.G. would have said had Heredia's counsel been allowed to cross-examine R.G. about what occurred in the hallway. Based on the record before us, Heredia was not "absolutely prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of a witness," nor can we conclude that "a reasonable jury would have received a significantly different impression of [R.G.'s] credibility had counsel been permitted to pursue his or her proposed line of cross-examination." See State v. Banks, 278 Neb. 342, 369, 771 N.W.2d 75, 96 (2009). Therefore, Heredia's constitutional right of confrontation was not violated.
Sufficiency of Evidence.
Heredia next argues that there was insufficient evidence to sustain a conviction for first degree sexual assault on a child. He contends that despite R.G.'s claim to have performed oral sex on Heredia, she did not have "actual knowledge" of Heredia's penis and that therefore, there is insufficient evidence to prove that Heredia subjected R.G. to sexual penetration as required by § 28-319(1)(c).
Heredia argues that R.G.'s inability to give specifics or describe Heredia's penis discredits her testimony that she performed oral sex on Heredia. Heredia is asking this court to reweigh R.G.'s credibility, which we will not do. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. See State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009).
R.G. testified that Heredia asked her to perform oral sex on him and that after five or six requests, she gave in and agreed to do it. She stated that she performed oral sex on Heredia for about 5 minutes until her mother walked in. The trial court found R.G.'s testimony credible, and such testimony alone is sufficient to support the required element of sexual penetration. We conclude there was sufficient evidence to support a conviction of first degree sexual assault. Heredia's assignment of error is without merit.
Ineffective Assistance of Counsel.
Heredia raises six claims of ineffective assistance of trial counsel, which we will address in turn. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. See State v. Jones, 274 Neb. 271, 739 N.W.2d 193 (2007). Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. Id. When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. Id.
Heredia first asserts that his trial counsel was ineffective because he waived the statutory 24-hour-notice requirement when the information was amended just before trial began. Heredia asserts he was prejudiced by his counsel's not asserting the right to a continuance based on substantial changes of the elements of the offense. As previously discussed, deleting the word "attempt" did not charge an additional or different offense and did not prejudice Heredia's substantial rights. Accordingly, Heredia cannot show that he was prejudiced by his trial counsel's performance in this regard.
Heredia next argues that his counsel was ineffective because he offered Tibbles' notes from Heredia's two visits into evidence, which notes helped establish an element of the offense, i.e., Heredia's age. Section 28-319(1)(c) requires the State to prove that the actor is 19 years of age or older and the victim is at least 12 but less than 16 years of age. Heredia's age was established by Coniglio's testimony, who testified before Tibbles. Accordingly, the evidence of Heredia's age in Tibbles' notes was cumulative and no prejudice can be shown by the admission of such evidence.
Heredia also claims that his trial counsel was ineffective for not asserting the spousal privilege when the State cross-examined his wife on the issue of Heredia's immigration status. Neb. Rev. Stat. § 27-505 (Reissue 2008) provides in part that "[n]either husband nor wife can be examined in any case as to any confidential communication made by one to the other while married . . . ." Section 27-505 states that "a confidential communication shall mean a communication which is made privately by any person to his or her spouse with no intention that such communication be disclosed to any other person." Heredia's immigration status is not a "confidential communication" as defined in § 27-505, and thus, the spousal privilege is inapplicable. Heredia cannot show that his counsel's failure to assert the spousal privilege was deficient performance or that he was prejudiced in any way.
Heredia next contends that his trial counsel was ineffective in not making a motion for mistrial in regard to any of the alleged misconduct by the prosecutor. As previously set forth above, Heredia argues that the prosecutor committed misconduct when she moved to amend the information, violated the sequestration order, stated during opening statements that the evidence would show Heredia's pants were down during the incident at issue and then tried to coax the witnesses to testify in a way that matched the prosecutor's version of the story, and questioned Heredia's wife about his immigration status.
We have already concluded that the trial court did not err in allowing the State to amend the information and in allowing the State to question Heredia's wife about his immigration status. Accordingly, it cannot be said that the prosecutor committed misconduct in connection to either of these actions. It follows then that Heredia's counsel was not ineffective in failing to motion for a mistrial in regard to these actions by the prosecutor.
Heredia contends that his counsel should have filed a motion for mistrial in connection with the prosecutor's misconduct during opening statements and in questioning witnesses in regard to whether Heredia's pants were down during the incident at issue. Based on the record, there was no misconduct during opening statements or in the prosecutor's questioning of the witnesses. Accordingly, Heredia cannot show that counsel's performance was deficient or that he was prejudiced by counsel's failure to move for a mistrial. We conclude that Heredia's trial counsel was not ineffective in failing to motion for a mistrial in regard to any of the alleged misconduct by the prosecutor.
There are three remaining claims of ineffective assistance of counsel raised by Heredia, specifically that his counsel was ineffective for not making an offer of proof regarding the answers R.G. would have given had he been allowed to explore R.G.'s past sexual behavior, that his counsel was ineffective for failing to file a written motion 15 days before trial for the admission of sexual conduct evidence as required by § 27-412, and that his counsel was ineffective for failing to move for a mistrial based on the prosecutor's alleged violation of the sequestration order. We conclude that the record is insufficient to rule on these remaining claims, and therefore, we are unable to address them further.
CONCLUSION
We conclude that Heredia's assigned errors are without merit and that the record is insufficient to rule on three of his ineffective assistance of counsel claims. Accordingly, the judgment of the district court is affirmed.
AFFIRMED.