State v. Bershon

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. BERSHON
Cite as 33 Neb. App. 523
State of Nebraska, appellee, v.
Paul D. Bershon, appellant.
___ N.W.3d ___
Filed April 8, 2025. 	No. A-24-174.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Postconviction: Appeal and Error. On appeal from the denial of
postconviction relief without an evidentiary hearing, the question is not
whether the movant was entitled to relief by having made the requisite
showing. Instead, it must be determined whether the allegations were
sufficient to grant an evidentiary hearing.
3. Postconviction: Constitutional Law: Proof. The district court must
grant an evidentiary hearing to resolve the claims in a postconviction
motion when the motion contains factual allegations which, if proved,
constitute an infringement of the defendant’s rights under the state or
federal Constitution.
4. Postconviction: Pleadings. The allegations in a motion for postconvic-
tion relief must be sufficiently specific for the district court to make
a preliminary determination as to whether an evidentiary hearing is
justified.
5. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the motion
does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
6. Postconviction: 	Effectiveness 	of 	Counsel: Appeal 	and 	Error.
Generally, a motion for postconviction relief cannot be used to secure
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Nebraska Court of Appeals Advance Sheets
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STATE v. BERSHON
Cite as 33 Neb. App. 523
review of issues that were or could have been litigated on direct appeal;
however, when the defendant is represented both at trial and on direct
appeal by the same counsel, the defendant’s first opportunity to assert
ineffective assistance of trial counsel is in a motion for postconvic-
tion relief.
7. Effectiveness of Counsel: Proof. In order to establish a right to post-
conviction relief based on a claim of ineffective assistance of coun-
sel, the defendant has the burden to show that counsel’s performance
was deficient and that counsel’s deficient performance prejudiced the
defense in his or her case.
8. Effectiveness of Counsel: Presumptions: Proof. The two prongs of
the ineffective assistance of counsel test—deficient performance and
prejudice—may be addressed in either order, and the entire ineffective-
ness analysis is viewed with a strong presumption that counsel’s actions
were reasonable.
9. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
10. ____: ____. To establish prejudice, the defendant must demonstrate a
reasonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
11. Sexual Assault: Witnesses: Evidence: Proof. Before defense counsel
may cross-examine a witness about prior false allegations of sexual
assault, a defendant must establish, outside the presence of the jury, and
by a greater weight of the evidence, that (1) the accusation or accusa-
tions were in fact made, (2) the accusation or accusations were in fact
false, and (3) the evidence is more probative than prejudicial. If the
defendant satisfies these three conditions, the trial court will authorize
cross-examination of the complaining witness concerning the alleged
false accusations; the defendant may thereafter present extrinsic evi-
dence of the false accusations only if the complaining witness denies or
fails to recall having made such accusations.
12. Sexual Assault: Witnesses. In sexual assault cases, the complaining
witness’ credibility is critical.
13. Sexual Assault: Witnesses: Evidence. Prior fabricated accusations of
sexual assault are highly probative of a complaining witness’ credibility,
and in such cases, evidentiary constraints must sometimes yield to a
defendant’s right of cross-examination.
14. Effectiveness of Counsel: Trial: Appeal and Error. In cases where the
alleged ineffectiveness of counsel was not raised or ruled on at the trial
level, an evaluation of defense counsel’s actions would require an evalu-
ation of trial strategy and of matters not contained in the record.

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Nebraska Court of Appeals Advance Sheets
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STATE v. BERSHON
Cite as 33 Neb. App. 523
15. ____: ____: ____. It is more the exception than the rule that defense
counsel’s strategy can be reasonably inferred from the trial record on
direct appeal.
16. Effectiveness of Counsel: Presumptions. In assessing deficiency in
counsel’s performance, a court presumes that counsel rendered adequate
assistance and made all significant decisions in the exercise of reason-
able professional judgment.
17. Effectiveness of Counsel. Trial counsel’s decisions that amount to rea-
sonable trial strategy do not constitute deficient performance.
18. Effectiveness of Counsel: Trial: Presumptions: Appeal and Error.
An appellate court does not use perfect hindsight to criticize unsuc-
cessful trial strategies or second-guess trial strategy; there is a strong
presumption that counsel acted reasonably, and an appellate court will
not second-guess reasonable strategic decisions.
19. Postconviction. In a motion for postconviction relief, a defendant is
required to specifically allege what the testimony of potential witnesses
would have been had they had been called at trial in order to avoid
dismissal without an evidentiary hearing. Absent specific allegations, a
motion for postconviction relief effectively becomes a discovery motion
to determine whether evidence favorable to a defendant’s position actu-
ally exists.
Appeal from the District Court for Washington County: John
E. Samson and Bryan C. Meismer, Judges. Affirmed in part,
and in part reversed and remanded for further proceedings.
Mark Porto, of Wolf, McDermott, Depue, Sabott, Butz &
Porto, L.L.C., and Jerrod Jaeger, of Jaeger Law Office, P.C.,
L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Riedmann, 	Chief 	Judge, 	and 	Pirtle 	and 	Arterburn,
Judges.
Arterburn, Judge.
INTRODUCTION
Paul D. Bershon appeals from an order of the district court
for Washington County that denied, without an evidentiary
hearing, his motion for postconviction relief. We determine

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Nebraska Court of Appeals Advance Sheets
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STATE v. BERSHON
Cite as 33 Neb. App. 523
that the district court erred when it denied Bershon an eviden-
tiary hearing on his claim that trial counsel was ineffective for
failing to present evidence of a prior recanted accusation of
sexual assault made by the victim. We therefore reverse that
portion of the district court’s order and remand the cause for an
evidentiary hearing on this single claim. In all other respects,
the order of the district court is affirmed.
BACKGROUND
A full recitation of the facts underlying Bershon’s convic-
tions is not necessary to our review of his postconviction
appeal. As such, we summarize only the facts necessary to
provide context for the present appeal. A full recitation of the
facts underlying Bershon’s convictions can be found in his
direct appeal in State v. Bershon, 313 Neb. 153, 983 N.W.2d
490 (2023).
In 2021, the State charged Bershon in an amended infor-
mation with 13 counts of first degree sexual assault, Class II
felonies; 3 counts of incest, Class III felonies; and 3 counts
of intentional abuse of a vulnerable adult, Class IIIA felonies.
Bershon pled not guilty to all charges. The charges related to
Bershon’s sexual abuse of his then-stepdaughter, B.B., which
began in 2006 and continued through 2018. B.B. was born in
December 1990 and was 15 years old when the alleged abuse
began. She is intellectually disabled.
When B.B. was born, her mother, Pamela Leman, was mar-
ried to B.B.’s biological father. B.B.’s parents divorced a few
years later, and Leman married Bershon in 2000. Leman and
Bershon had two children together, Joshua B. and Jessica B.,
born in 2001 and 2002, respectively. In 2005, Leman, Bershon,
B.B., Joshua, and Jessica resided in a home in Michigan
together. In 2006, the family moved to Nebraska.
Prior to trial, Bershon filed a motion in limine to preclude the
State from introducing any evidence of a 2005 sexual assault
allegation made by B.B. against him in Michigan (referred to
hereafter as the “Michigan allegations”). A hearing was held

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Nebraska Court of Appeals Advance Sheets
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STATE v. BERSHON
Cite as 33 Neb. App. 523
on the motion, and the court received as evidence a copy of
the 2005 Michigan police report detailing the allegation and
the subsequent investigation. The report shows that in August
2005, when B.B. was 14 years old, she reported that Bershon
had touched her in a sexual manner. A month after making her
initial statement, B.B. recanted the allegation, informed law
enforcement that she had lied, and stated that Bershon had
never “done anything to her.” Consequently, the investigation
was closed.
The State objected to Bershon’s motion and moved to elicit
evidence of the Michigan allegations pursuant to Neb. Rev.
Stat. § 27-414 (Reissue 2016). The State specified that it
mainly sought inclusion of the Michigan allegations to prevent
a mistrial. The State explained that if the allegations were not
admissible, there was a significant probability that despite any
warnings the State gave B.B., she would inadvertently mention
these events during her trial testimony.
The court inquired as to whether Bershon had any additional
evidence regarding the alleged recantation. Bershon stated that
he did not have any additional evidence. The court then asked
whether the police report would be admissible in a § 27-414
hearing. Bershon remarked that it would be admissible because
he did not believe that the strict rules of evidence applied
to § 27-414 hearings. The court and the State disagreed and
stated that they believed that the rules of evidence applied.
Bershon’s counsel replied, “Judge, what am I—I mean, listen,
I’m not in a position where—Am I supposed to fly in this law
enforcement officer from Michigan?”
The court subsequently held a § 27-414 hearing. Once again,
Bershon offered as evidence the 2005 Michigan police report
that the court had received in support of his motion in limine.
Bershon argued
Defense counsel is aware of the extrinsic evidence rule,
and the reason I move to admit the police report is
because we don’t know where the author is, we can’t

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STATE v. BERSHON
Cite as 33 Neb. App. 523
bring the author in to verify the veracity of the report, but
we know there’s an allegation that she lied.
The State objected, arguing that the document contained hear-
say. The court sustained the objection.
B.B. and Leman testified about the Michigan allegations at
the hearing. B.B. recalled that while living in Michigan, she
reported to law enforcement that Bershon had “touched” her.
Initially, she could not recall the specifics of her statement,
nor the incident that preceded her contacting law enforce-
ment. After the State refreshed B.B.’s recollection, B.B. testi-
fied that Bershon had “[t]ouched [her] boob and all that other
kind of stuff.” The State asked her to clarify what “other . . .
stuff” meant, and B.B. testified that Bershon had touched her
vagina. B.B. testified that she initially told her biological
father of the assault and that afterward, she went to the police
station with him. She could not recall if Bershon had touched
her more than once. She also could not recall if the touching
occurred on bare skin or over her clothes. B.B. denied ever
lying to the police about these allegations.
The State also asked B.B. whether Bershon had told her
anything when he touched her. B.B. testified that she did not
remember. After refreshing her memory with the 2005 police
report, the State asked the same question, and B.B. responded,
“I don’t know.” The State then asked, “[D]o you recall if
[Bershon] said don’t tell anyone or I’ll get in trouble,” to
which B.B. responded, “Oh yes. Yes.”
Leman similarly testified that in August 2005, police officers
arrived at her Michigan home and informed her that B.B. had
told her biological father that Bershon had sexually assaulted
her, and her father filed a police report in response. Leman
did not recall having any other conversations concerning these
allegations with the police, Bershon, or B.B. She also did not
recall what she thought of the allegations at the time, nor the
results of the police investigation.
After all the evidence was submitted, Bershon argued that
the State failed to show that the 2005 assault had actually

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Nebraska Court of Appeals Advance Sheets
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STATE v. BERSHON
Cite as 33 Neb. App. 523
occurred. Bershon pointed out that B.B. testified several times
that she did not remember the specifics of the allegations. He
also argued that in light of her memory lapses, her testimony
that she did not lie to the police was unreliable. Additionally,
Bershon seriously questioned Leman’s testimony that she could
not recall any significant details about the sexual assault alle-
gations, considering that they were made by her intellectually
disabled daughter against her then-husband. For these reasons,
he asked the court to deny the State’s motion to introduce this
evidence under § 27-414.
On May 4, 2021, the court issued an order finding that “the
State did not meet its burden of proof and that the limited
probative value, due to lack of details, of [the Michigan alle-
gations] is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading to the jury.”
The court stated that “[t]he inability of both [B.B.] and
[Leman] to remember any details of the alleged Michigan
[allegations] made it impossible for the Court to find that clear
and convincing evidence had been shown by the State.” The
State was precluded from presenting any evidence regarding
the Michigan allegations at trial.
Accordingly, at trial, B.B. and Leman testified only about
the events that occurred in Nebraska and led to the charges
against Bershon. Leman generally testified that in May 2018,
she walked into the kitchen and witnessed B.B. performing
oral sex on Bershon. When Leman entered the room, B.B. ran
out, and Bershon told Leman, “I’m lonely and she wants to.”
Leman stated that B.B. hid in her bedroom for days afterward,
refused to talk, and was extremely frightened. Two days later,
Bershon moved out of the home. The following day, Leman
contacted law enforcement.
On cross-examination, Leman testified that later that month,
Bershon sent her a text message and a voicemail message
apologizing and admitting he was at fault for the incident.
Leman testified that she did not provide these messages to
the police and that they were no longer in her possession.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. BERSHON
Cite as 33 Neb. App. 523
She explained that the text message was sent to a phone
that automatically deleted messages after 30 days and that
the voicemail was sent to a home answering machine that
eventually stopped working. Leman admitted that she had at
least 30 days after receiving the messages to provide them to
law enforcement. She did not explain why she did not do so.
Leman admitted that she provided law enforcement with other
items that she believed were relevant to the case.
B.B. testified that she recalled an incident where she was
“sucking on [Bershon’s] private” when Leman walked in and
Bershon smacked her on the head. She clarified that by “pri-
vate,” she meant penis. B.B. testified that she knew what she
was doing was wrong, but she did not know why she had done
it. She also testified that she and Bershon had engaged in oral
sex approximately 10 times.
B.B. testified that she and Bershon engaged in sexual inter-
course “a lot,” and when asked what “a lot” meant, she said
“[a] hundred times.” B.B. testified that the abuse occurred
every year she had lived in Nebraska with Bershon. B.B. also
testified that the abuse occurred when Leman was not in the
home. B.B. testified that it was Bershon’s idea to have sex
and that she did not refuse him because she feared him. She
testified that Bershon told her not to tell Leman about these
incidents and that she was scared to tell Leman because she
did not want Leman and Bershon to fight or get a divorce.
B.B. denied ever telling her siblings about the assaults but
confirmed that Leman informed them after she discovered
the abuse.
Additionally, a significant amount of evidence was adduced
at trial concerning B.B.’s intellectual disability. Bob Richey,
a school psychologist who worked with B.B. in high school,
testified that B.B. was enrolled in special education courses
and an individualized education plan beginning in elementary
school. B.B. graduated from high school when she was 21
years old.

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STATE v. BERSHON
Cite as 33 Neb. App. 523
In 2007, Richey conducted IQ testing on B.B. and deter-
mined that her full scale IQ was 48. Richey testified that at
B.B.’s age, the average individual’s score was 100, and that a
score below 70 indicated the presence of “a mental handicap.”
B.B.’s score placed her “below the first percentile.” Richey
testified that B.B.’s academic skills clustered around the late
elementary years of fourth through sixth grade. He further
testified that in his opinion, B.B. had a substantial mental
impairment while in high school.
Elizabeth Morell, a clinical psychologist, conducted a psy-
chological assessment of B.B. in 2018 that involved an IQ test.
The test determined that B.B.’s full scale IQ at that point was
63. Morell testified that this score was in the lowest percentile
level and “extremely low range.” She ultimately diagnosed
B.B. with a mild intellectual disability. Morell reached this
diagnosis after considering B.B.’s low intellectual function-
ing, along with B.B.’s low adaptive functioning, which was
determined based on B.B.’s inability to manage her day-to-
day activities. Morell categorized B.B.’s diagnosis as chronic
in nature, meaning that it was unlikely that B.B.’s intellectual
functioning would improve over the course of time. Morell
concluded that B.B. was not capable of independent living and
that she needed continuous help in meeting her daily needs
and activities.
B.B., Jessica, and Leman also testified about B.B.’s intel-
lectual disability. B.B. testified that she was in a resource
room all throughout high school, that she graduated from high
school when she was “[s]omewhere in [her] twenties,” and
that she had participated in the Special Olympics. B.B also
testified that she did not cook for herself and did not operate
motor vehicles.
Jessica testified that although B.B. is older than Jessica,
she treats B.B. like a younger sister. Jessica explained that
she helps take care of B.B. and has a desire to protect B.B.
Jessica testified that B.B. does not drive a car because driving

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STATE v. BERSHON
Cite as 33 Neb. App. 523
frightens her and that B.B. needs assistance whenever she is
purchasing items in a store.
Leman testified that when B.B. entered kindergarten, she
was unable to participate and was placed into special educa-
tion courses. B.B. remained in special education courses and
an individualized education plan program until graduating at
age 21. Leman testified that B.B. was never diagnosed with
a specific intellectual disability but that she described it as
“learning disabled” and believed that B.B. would remain at her
current level of functioning. Leman described B.B. as having
the mentality of an 8- or 9-year-old. Due to B.B.’s intellectual
disability, B.B. receives disability payments from the Social
Security Administration.
During closing arguments, Bershon asserted that Leman
manipulated B.B. to fabricate the allegations against Bershon
because her marriage to Bershon was deteriorating and Leman
wanted financial security in the event of a divorce. In support
of his theory, Bershon emphasized Leman’s failure to provide
law enforcement with the incriminating text message and
voicemail she allegedly received from Bershon. He argued
that Leman’s decision to turn over other items indicated
that she had the knowledge and capability to provide the
police with relevant materials. He asserted that these alleged
messages were “the most incriminating evidence” against
Bershon and that the only logical conclusion for Leman’s not
providing these messages to law enforcement was that they
never existed.
At the conclusion of the trial, Bershon was found guilty by
a jury of all charges. The court sentenced him to an aggregate
sentence of 80 to 90 years’ imprisonment.
In August 2021, Bershon filed a direct appeal and was
represented by his trial attorneys. He alleged due process and
double jeopardy violations with respect to all charges occur-
ring prior to 2018. He further assigned and argued that there
was insufficient evidence to support his 13 convictions for
first degree sexual assault and his 3 convictions for intentional

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STATE v. BERSHON
Cite as 33 Neb. App. 523
abuse of a vulnerable adult. The Nebraska Supreme Court
affirmed his convictions and sentences. See State v. Bershon,
313 Neb. 153, 983 N.W.2d 490 (2023).
On January 5, 2024, Bershon, represented by new coun-
sel, filed a motion for postconviction relief. In his motion,
Bershon alleged that his trial counsel had provided ineffective
assistance of counsel when counsel failed to (1) present evi-
dence of the recanted Michigan allegations, (2) investigate the
contents of Bershon’s cell phone to definitively show that he
did not send incriminating messages to Leman, (3) have B.B.
independently evaluated, and (4) call Joshua as a witness at
trial. The State objected to Bershon’s request for an eviden-
tiary hearing.
On February 22, 2024, the district court issued a three-page
order denying Bershon postconviction relief without an evi-
dentiary hearing. The court found that Bershon’s four claims
of ineffective assistance of trial counsel were “speculative
allegations as to whether a different course of action would
have altered the outcome of the jury trial.” The court deter-
mined that Bershon “failed to make any factual allegations
that would render the judgment void or voidable” and that
Bershon failed to show prejudice.
Bershon now appeals to this court.
ASSIGNMENT OF ERROR
Bershon assigns that the district court erred in determining
that his motion for postconviction relief failed to allege facts
that, if proved, constituted an infringement of his constitutional
right to effective assistance of counsel.
STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirma-
tively show that the defendant is entitled to no relief. State v.
Harms, 315 Neb. 445, 996 N.W.2d 859 (2023).

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STATE v. BERSHON
Cite as 33 Neb. App. 523
[2] On appeal from the denial of postconviction relief with-
out an evidentiary hearing, the question is not whether the
movant was entitled to relief by having made the requisite
showing. Instead, it must be determined whether the allega-
tions were sufficient to grant an evidentiary hearing. State v.
Meyer, 30 Neb. App. 662, 971 N.W.2d 185 (2022).
ANALYSIS
[3-5] Bershon challenges the district court’s denial of his
motion for postconviction relief without first holding an evi-
dentiary hearing on his four ineffective assistance of counsel
claims. Before addressing his specific arguments on appeal,
we set forth the general principles applicable to postconviction
motions. The district court must grant an evidentiary hearing to
resolve the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an
infringement of the defendant’s rights under the state or federal
Constitution. State v. Yates, 32 Neb. App. 555, 2 N.W.3d 197
(2024). See, also, State v. Jaeger, 311 Neb. 69, 970 N.W.2d
751 (2022). However, the allegations in a motion for post-
conviction relief must be sufficiently specific for the district
court to make a preliminary determination as to whether an
evidentiary hearing is justified. State v. Yates, supra. An evi-
dentiary hearing is not required on a motion for postconviction
relief when (1) the motion does not contain factual allegations
which, if proved, constitute an infringement of the movant’s
constitutional rights rendering the judgment void or voidable;
(2) the motion alleges only conclusions of fact or law without
supporting facts; or (3) the records and files affirmatively show
that the defendant is entitled to no relief. Id.
[6] In his motion for postconviction relief, Bershon asserts
four claims of ineffective assistance of trial counsel. Generally,
a motion for postconviction relief cannot be used to secure
review of issues that were or could have been litigated on
direct appeal. See State v. Lessley, 312 Neb. 316, 978 N.W.2d
620 (2022). However, when the defendant is represented both
at trial and on direct appeal by the same counsel, as was the

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STATE v. BERSHON
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case here, the defendant’s first opportunity to assert ineffec-
tive assistance of trial counsel is in a motion for postconvic-
tion relief. See id.
[7-10] In order to establish a right to postconviction 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. Munoz, 309 Neb. 285, 959 N.W.2d 806
(2021). The two prongs of this test—deficient performance
and prejudice—may be addressed in either order, and the
entire ineffectiveness analysis is viewed with a strong pre-
sumption that counsel’s actions were reasonable. Id. To show
that counsel’s performance was deficient, a defendant must
show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law. Id. To estab-
lish prejudice, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different. See State
v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018).
Bershon asserts that trial counsel was ineffective when coun-
sel failed to (1) present evidence of the recanted Michigan alle-
gations, (2) investigate the contents of Bershon’s cell phone,
(3) have B.B. independently evaluated, and (4) call Joshua as
a witness at trial. We review each of these claims separately.
Failure to Offer Evidence of Michigan Allegations.
Bershon argues that trial counsel was ineffective because
counsel failed to present evidence that B.B. had recanted
the Michigan allegations. Bershon maintains that if this evi-
dence had been used to impugn the credibility of both B.B.
and Leman, there is a reasonable probability that a different
outcome would have resulted at trial. The State counters that
this claim was properly denied without an evidentiary hear-
ing because Bershon cannot show deficient performance or
prejudice.

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STATE v. BERSHON
Cite as 33 Neb. App. 523
[11] We begin with an overview of our case law on prior
false allegations of sexual assault. Before defense counsel may
cross-examine a witness about prior false allegations of sexual
assault, a defendant must establish, outside the presence of the
jury, and by a greater weight of the evidence, that
(1) the accusation or accusations were in fact made, (2)
the accusation or accusations were in fact false, and
(3) the evidence is more probative than prejudicial. If
the defendant satisfies these three conditions, the trial
court will authorize cross-examination of the complain-
ing witness concerning the alleged false accusations. The
defendant may thereafter present extrinsic evidence of the
false accusations only if the complaining witness denies
or fails to recall having made such accusations.
State v. Swindle, 300 Neb. 734, 752, 915 N.W.2d 795, 810
(2018). See, also, State v. Ali, 312 Neb. 975, 981 N.W.2d
821 (2022).
[12,13] The Supreme Court has acknowledged that in sexual
assault cases, the complaining witness’ credibility is critical.
State v. Ali, supra. Thus, prior fabricated accusations of sexual
assault are highly probative of a complaining witness’ credibil-
ity. Id. In such cases, evidentiary constraints must sometimes
yield to a defendant’s right of cross-examination. Id.
In this case, the district court’s order denying Bershon post-
conviction relief does little more than state that the court found
that each ineffective assistance of counsel claim was specula-
tive. The order is silent as to what portions of the record the
district court considered when determining Bershon’s trial
counsel was not ineffective for failing to present evidence
of the Michigan allegations. Thus, we are unable to discern
what the district court’s determination was as to counsel’s
reasoning for not utilizing this evidence as a part of his trial
strategy or why, had this evidence been admitted, there was
not a reasonable probability that the result at trial would have
been different.

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[14,15] The Supreme Court has held that in cases where the
alleged ineffectiveness of counsel was not raised or ruled on
at the trial level, an evaluation of defense counsel’s actions
would require an evaluation of trial strategy and of matters
not contained in the record. See State v. McCulloch, 274
Neb. 636, 742 N.W.2d 727 (2007). The Supreme Court has
also cautioned that it is more the exception than the rule that
defense counsel’s strategy can be reasonably inferred from the
trial record on direct appeal. State v. Wood, 310 Neb. 391, 966
N.W.2d 825 (2021). However, in at least one case, the Supreme
Court has determined a defense counsel’s trial strategy based
upon counsel’s cross-examination of the victim and counsel’s
closing argument. See id.
The State argues that defense counsel had a reasonable
strategy to preclude evidence of the Michigan allegations:
had these allegations been adduced at trial, there would have
been conflicting assertions about whether and to what extent
those allegations were true. The State asserts that if Bershon
had cross-examined B.B. on her retraction of the allegations,
it would have countered with an assertion that the Michigan
allegations were, in fact, true. The State argues that in light of
B.B.’s intellectual disability, it would not be unreasonable for
a jury to conclude that she incorrectly recanted the allegations
in 2005.
At the outset, we note that the State’s argument focuses less
on defense counsel’s strategy and more on the State’s hypo-
thetical strategy had the Michigan allegations been presented
at trial. Moreover, the State’s proposed rehabilitation of B.B.
would have still left the jury with a question as to her credibil-
ity. As stated earlier, the credibility of a complaining witness
in a sexual assault case is significant. See State v. Ali, supra.
The fact that B.B. had previously alleged sexual assault against
Bershon, only to later recant her allegation and inform the
police she had lied, goes directly to her credibility as a com-
plaining witness in this case.

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For purposes of our analysis, we assume that the Michigan
allegations were admissible under the test outlined in State v.
Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). We also note
that the State sought to present the evidence of the Michigan
allegations at trial. Trial counsel for Bershon chose to resist
the State’s efforts. Keeping all of these issues in mind, we
find that in this case, the record on appeal is insufficient to
determine whether Bershon received ineffective assistance of
counsel when counsel chose to pursue a strategy of keeping all
evidence regarding the Michigan allegations from the jury’s
consideration. We note that had trial counsel not resisted the
§ 27-414 motion, further evidence of a history of sexual abuse
on Bershon’s part would have been presented to the jury. The
question then becomes, given all of the circumstances pres-
ent in the case, whether trial counsel reasonably believed
that allowing the Michigan allegations to be presented to the
jury as past offenses of sexual assault committed by Bershon
against B.B. would be more detrimental to Bershon’s defense
than his being able to show that B.B. eventually recanted
those allegations.
Why trial counsel did not seek to admit the Michigan alle-
gations as evidence of prior false allegations made by B.B.
against Bershon is unclear on the existing record. The record
contains a possible indication that counsel was unsure of
whether he could subpoena an out-of-state witness to testify
at the § 27-414 hearing. Before the hearing, counsel asked
the court if he was “supposed to fly in this law enforcement
officer from Michigan.” At the hearing, counsel remarked that
“we can’t bring the author [of the Michigan police report] in
to verify the veracity of the report.” Whether counsel believed
that this inability was due to the lack of a legal mechanism
to secure an out-of-state witness (which, considering Neb.
Rev. Stat. § 29-1908 (Reissue 2016), would be untrue) or
due to a true lack of knowledge concerning the where-
abouts of the author is unclear. The former explanation could

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theoretically raise concerns about the effectiveness of trial
counsel’s performance.
In counsel’s closing argument, he revealed his theory of the
case, which was that Leman had manipulated B.B. to fabricate
the allegations of sexual assault against Bershon. Evidence
that B.B. had previously recanted allegations of sexual assault
against Bershon may have bolstered that theory. Because our
record does not demonstrate the totality of the circumstances
that trial counsel may have considered, we cannot determine
whether counsel declined to present this evidence pursuant to
a reasonable defense strategy or lack thereof. An evidentiary
hearing is necessary to explore trial counsel’s strategy and
determine whether counsel’s performance was deficient.
Furthermore, on the record before us, we cannot assume
that Bershon was not prejudiced by trial counsel’s decision.
We therefore hold that the district court erred in denying this
portion of Bershon’s motion for postconviction relief without
a hearing. We reverse this decision of the district court and
remand the cause with directions to hold an evidentiary hear-
ing on this claim of ineffective assistance of counsel.
Failure to Investigate Contents
of Bershon’s Cell Phone.
Bershon contends that trial counsel was ineffective because
counsel failed to investigate the contents of his cell phone. He
alleges that an investigation of the phone would have defini-
tively shown that he did not confess any crimes to Leman
via text or voicemail and that this evidence would have led
to a different outcome at trial. The State counters that this
claim is without merit because Bershon cannot show deficient
performance or prejudice. The State points out that even if it
was shown that Bershon’s phone did not contain evidence of
texts or calls sent to Leman, this would not negate the pos-
sibility that he deleted the information from his phone. In
other words, the State argues that an examination of the phone
would not have definitively established that the confessions
did not occur.

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[16-18] We agree with the State that Bershon cannot show
that his trial counsel performed deficiently or that he was
prejudiced by any allegedly deficient performance. To show
that counsel’s performance was deficient, a defendant must
show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law. State v. Wood,
310 Neb. 391, 966 N.W.2d 825 (2021). In assessing deficiency
in counsel’s performance, a court presumes that counsel “‘ren-
dered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.’” Id. at
431, 966 N.W.2d at 855 (quoting Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Trial
counsel’s decisions that amount to reasonable trial strategy
do not constitute deficient performance. State v. Wood, supra.
We do not use perfect hindsight to criticize unsuccessful trial
strategies or second-guess trial strategy. Id. There is a strong
presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions.
State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023).
It was not an unreasonable decision for counsel to forgo
an investigation of Bershon’s cell phone. Even if we assume
that Bershon’s assertion is correct that no incriminating text or
voicemail would have been found on his phone, the possibility
that Bershon had simply deleted the messages from his phone
would not be negated. A lawyer using reasonable professional
judgment could conclude that investigating Bershon’s phone
would not be helpful and could result in an unexpected and
potentially harmful discovery. We also note that Bershon’s
trial counsel thoroughly cross-examined Leman about the
alleged messages. Leman admitted that despite providing law
enforcement with other items she believed relevant to the case,
and despite having at least 30 days to turn the messages over,
she never did so. In closing arguments, counsel described the
messages as “the most incriminating evidence” in Leman’s
possession and argued that the most likely reason Leman did

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not provide the messages to law enforcement was because they
did not exist.
Since we find that Bershon’s trial counsel was not deficient
in his decision not to have Bershon’s cell phone examined, we
need not address prejudice. We find that trial counsel’s deci-
sion not to pursue an investigation of Bershon’s phone was
reasonable. This claim of ineffective assistance of trial counsel
was properly denied without an evidentiary hearing.
Failure to Offer Independent Evaluation
of B.B.’s Mental Capacity.
Bershon asserts that trial counsel was ineffective because
counsel did not have B.B. independently evaluated. He specifi-
cally asserts that an independent evaluation would have shown
that B.B. had the mental capacity to appraise the nature of
sexual conduct and had the ability to resist unwanted sexual
contact, thus negating one of the State’s theories of the case
that B.B. was incapable of resisting or appraising the nature
of her conduct. Bershon contends that, had his trial counsel
offered an independent evaluation, a reasonable probability
exists that the outcome of trial would have been different.
The State argues that this claim was properly denied without
an evidentiary hearing because it contains insufficient alle-
gations. The State claims that Bershon failed to specifically
allege the expert testimony that his trial counsel should have
produced at trial. Additionally, the State argues that this claim
is without merit because Bershon cannot show that his trial
counsel was ineffective for failing to offer an independent
evaluation of B.B. given that it was undisputed that B.B. is
intellectually disabled.
[19] In a motion for postconviction relief, a defendant is
required to specifically allege what the testimony of potential
witnesses would have been had they had been called at trial in
order to avoid dismissal without an evidentiary hearing. State
v. Cox, 314 Neb. 104, 989 N.W.2d 65 (2023). Absent spe-
cific allegations, a motion for postconviction relief effectively

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becomes a discovery motion to determine whether evidence
favorable to a defendant’s position actually exists. Id.
In his postconviction motion, Bershon does not identify a
potential expert witness or what evidence that witness would
have provided to bolster Bershon’s defense. Bershon states
only that an independent examination would show that B.B.
could appraise the nature of sexual conduct and was capable
of resisting the same. This is a conclusory statement of law,
not a specific allegation of testimony. Further, to the extent
that we can assume that an expert witness would have sup-
ported Bershon’s theory of defense, Bershon has not shown
how that defense would have been successful. At trial, a
school psychologist and a clinical psychologist, both having
personally tested B.B., testified that she had an extremely low
IQ and was intellectually disabled. The school psychologist
was involved with assessing B.B.’s educational needs and
abilities from 2007 through 2014. Leman and Jessica similarly
testified that B.B. had the mentality of a young child. B.B.
herself testified to her own limitations, her enrollment in
special education courses, and her participation at the Special
Olympics. The evidence unequivocally showed that B.B. has
a substantial mental impairment and is fully dependent upon
Leman for day-to-day functioning. In closing argument, trial
counsel acknowledged that the jury could observe that B.B.
was disabled.
In his motion, Bershon does not explain how expert testi-
mony would have established that B.B.’s intellectual disability
was not significant. Thus, he has not shown that trial counsel’s
allegedly deficient performance prejudiced his defense. The
district court did not err when it rejected this claim without
conducting an evidentiary hearing.
Failure to Call Joshua as Witness.
Bershon argues that trial counsel was ineffective because
counsel failed to call Joshua as a witness. Bershon asserts
that Joshua’s testimony would have demonstrated Bershon’s
lack of propensity to engage in sexual abuse, “impugned the

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credibility of B.B. and [Leman],” and shown that “Bershon’s
children were not unified in any belief of his guilt.” Brief for
appellant at 26. Bershon also asserts that Joshua’s testimony
would have enhanced Bershon’s credibility and would have
likely resulted in a different outcome at trial.
In response, the State argues that the district court prop-
erly denied this claim without an evidentiary hearing because
Bershon cannot show prejudice. The State points out that it
was undisputed that Joshua was not present when Bershon
was alleged to have sexually abused B.B. Further, the State
observes that even if Joshua testified as Bershon suggests, his
testimony, at most, would have been his opinion as to the char-
acter of Bershon, B.B., and Leman, and that his opinion would
be scrutinized by the jury for objectivity and impartiality.
We agree with the State that, given the other evidence
adduced at trial, there is not a reasonable probability that
Joshua’s purported testimony would have changed the out-
come of the trial. Joshua’s purported support of his father
would have been general in nature. It would not specifically
address B.B.’s and Leman’s specific testimony regarding their
observation of Bershon’s abuse of B.B. and B.B.’s reluctance
to disclose it. Thus, Bershon has failed to establish prejudice,
and this claim of ineffective assistance of trial counsel was
properly denied without an evidentiary hearing.
CONCLUSION
For the foregoing reasons, we find that the district court
erred when it denied Bershon postconviction relief without an
evidentiary hearing on his claim that trial counsel was inef-
fective for failing to present evidence of B.B.’s recantation
of prior allegations of sexual abuse. We reverse this portion
of the court’s order and remand the cause for an evidentiary
claim on this single claim. The order of the district court is
otherwise affirmed.
Affirmed in part, and in part reversed and
remanded for further proceedings.