State v. Torres Aquino

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
State of Nebraska, appellee, v.
Nimrod Torres Aquino, appellant.
___ N.W.3d ___
Filed April 18, 2025. 	No. S-23-596.
1. Criminal Law: Pretrial Procedure: Appeal and Error. Discovery in
a criminal case is generally controlled by either a statute or court rule.
Therefore, unless granted as a matter of right under the Constitution or
other law, discovery is within the discretion of a trial court, whose ruling
will be upheld on appeal unless the trial court has abused its discretion.
2. Criminal Law: Pretrial Procedure: Evidence: Appeal and Error. The
exclusion of evidence in a criminal case as a sanction for a discovery
violation is subject to harmless error review.
3. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
4. Rules of Evidence: Proof: Appeal and Error. Neb. Rev. Stat. § 27-103
(Reissue 2016) did not change the rule that where evidence is excluded,
an offer of proof is generally a prerequisite to review on appeal.
5. Evidence: Proof: Appeal and Error. An offer of proof brings the
substance of the evidence before the trial court and the appellate court
so that both may determine whether the refusal to accept the evidence
was error.
6. Trial: Records: Pretrial Procedure: Evidence: Appeal and Error.
An aggrieved party must ensure that the trial record is sufficient for an
appellate court to review whether the trial court committed reversible
error in imposing a sanction for a discovery violation, whether the cho-
sen sanction was an abuse of discretion, and whether the exclusion of
the evidence was harmless.
7. Trial: Pretrial Procedure: Evidence: Proof: Appeal and Error. The
rules governing the need to renew an offer of proof at trial to preserve
error relating to preliminary evidentiary rulings on admissibility do
not apply to evidence barred or stricken as a sanction for a discovery
violation.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:15 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
8. Sexual Assault: Minors: Time. The exact date of commission is not
a substantive element of first degree or third degree sexual assault of
a child.
9. ____: ____: ____. The statutes governing sexual assault of children rec-
ognize and accommodate the unique circumstances surrounding young
victims, who are often unsure of the date on which an assault or assaults
occurred and may have no meaningful reference point of time or detail
by which to distinguish one specific act from another.
10. Criminal Law: Appeal and Error. Errors, other than structural errors,
which occur within the trial and sentencing process, are subject to harm-
less error review.
11. ____: ____. Harmless error jurisprudence recognizes that not all trial
errors, even those of constitutional magnitude, entitle a criminal defend-
ant to the reversal of an adverse trial result.
12. Criminal Law: Trial: Evidence: Appeal and Error. An error in admit-
ting or excluding evidence in a criminal trial, whether of constitutional
magnitude or otherwise, is prejudicial unless it can be said that the error
was harmless beyond a reasonable doubt.
13. Appeal and Error. When determining whether an alleged error is so
prejudicial as to justify reversal, courts generally consider whether the
error, in light of the totality of the record, materially influenced the out-
come of the case.
14. Verdicts: Juries: Appeal and Error. Harmless error review looks to
the basis on which the trier of fact actually rested its verdict; the inquiry
is not whether in a trial that occurred without the error a guilty verdict
would surely have been rendered, but, rather, whether the actual guilty
verdict rendered in the questioned trial was surely unattributable to
the error.
15. Appeal and Error. Whether error is harmless in a particular case
depends upon a host of factors.
16. Witnesses: Testimony: Appeal and Error. Whether the exclusion of
witness testimony is harmless depends upon the importance of the wit-
ness’ testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or con-
tradicting the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and the overall strength of the
prosecution’s case.
17. Convictions: Evidence: Appeal and Error. Where the evidence is
cumulative and there is other competent evidence to support the con-
viction, the improper admission or exclusion of evidence is harmless
beyond a reasonable doubt.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
18. Evidence: Witnesses. If a witness is questioned about a prior inconsist-
ent statement and admits to making it, then counsel is precluded from
introducing extrinsic evidence of the statement itself.
19. Effectiveness of Counsel: Records: Appeal and Error. The record
on appeal is sufficient to adequately review the question on ineffective
assistance if it establishes either that trial counsel’s performance was not
deficient, that the appellant will not be able to establish prejudice as a
matter of law, or that trial counsel’s actions could not be justified as a
part of any plausible trial strategy.
20. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel, the defendant must show both deficient perform-
ance and prejudice.
21. ____: ____. To show prejudice, the defendant must demonstrate a rea-
sonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
Petition for further review from the Court of Appeals,
Pirtle, Chief Judge, and Arterburn and Welch, Judges, on
appeal thereto from the District Court for Hall County, Patrick
M. Lee, Judge. Judgment of Court of Appeals affirmed.
Jerrod Jaeger, of Jaeger Law Office, P.C., L.L.O., for
appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Freudenberg, J.
I. INTRODUCTION
We 	granted 	further 	review 	of 	the 	Nebraska 	Court 	of
Appeals’ decision affirming the defendant’s convictions of first
and third degree sexual assault of his stepdaughter in Grand
Island, Hall County, Nebraska. At issue is the trial court’s
order of a discovery sanction barring evidence and quashing
the defendant’s subpoena duces tecum that was filed on the
Friday before trial was to commence the following Monday.
The barred evidence concerned an asserted prior inconsistent

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
statement by the victim as to the date of a relevant assault. The
defendant argues on appeal that the trial court erred in finding
a discovery violation, because the information was not subject
to the reciprocal discovery order. Alternatively, the defendant
argues trial counsel was ineffective by violating the recipro-
cal discovery order and failing to follow proper procedures
for privileged medical records, which the court also cited as a
reason for barring the evidence at trial. The defendant assigns
on further review that the Court of Appeals erroneously held
that any error in ordering the discovery sanction was waived
because trial counsel did not renew, at trial, his offer of proof
that was made at the pretrial hearing. He also assigns that the
Court of Appeals erroneously found that he was not prejudiced
by the alleged ineffective assistance that resulted in the discov-
ery sanction, because the trial court’s order did not foreclose
all trial counsel’s avenues of presenting the prior inconsistent
statement, nor did it prevent trial counsel from making an offer
of proof at trial; and these failures by trial counsel were not
specifically assigned as error on appeal. For different reasons
than given by the Court of Appeals, we affirm.
II. BACKGROUND
1. Charges
Nimrod Torres Aquino (Aquino) was charged with one count
of sexual assault of a child in the first degree and one count
of sexual assault of a child in the third degree. On the charge
of first degree sexual assault, the operative information alleged
that “[o]n or between” December 1, 2021, and February 24,
2022, Aquino, who was over the age of 25, subjected the
victim, who was between 12 and 16 years of age, to sexual
penetration. On the charge of third degree sexual assault, the
information alleged that on or between December 1, 2021,
and February 24, 2022, Aquino, who was over the age of 19,
subjected the victim, who was 14 years of age or younger,
to sexual contact. The original information set forth the date
range for both charges as February 1, 2022, through February

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
24, 2022. This was amended to conform to the evidence at trial
after the State rested its case in chief.
It is not disputed that the victim, T.G.T., was 14 years old or
younger at the time of the alleged assaults and that Aquino was
over the age of 25. T.G.T. was born in Puerto Rico in October
2007 and was 15 years old at the time of trial. Aquino was born
in July 1982.
2. Evidence at Trial
(a) Places of Residence, Employment,
and Aquino’s Access to T.G.T.
Aquino began living with T.G.T. and T.G.T.’s mother and
younger brother in November 2018 in Puerto Rico. Aquino
and T.G.T.’s mother married in April 2019. Aquino moved
to the United States in October 2020. The mother followed
a month later. By January 2021, T.G.T. and her brother were
living in California with their mother and Aquino in a hotel.
Thereafter, the family relocated to Idaho, North Carolina,
Utah, back to California, to Washington, back to Idaho, and
then back to California. They mostly stayed in hotels paid for
by the employer of Aquino and the mother. Sometimes the
family stayed with friends or relatives. Other than when the
children lived with relatives in North Carolina for approxi-
mately 4 months, they either went to school online or did
not attend school. Both Aquino and T.G.T.’s mother worked
“third shift.”
According to the mother, in December 2021, the family
moved to Grand Island. The mother testified that the family
stayed one night in a hotel in Grand Island on December 1
and moved into a two-bedroom rental home the following
day, December 2. She testified that the company she worked
for had paid for them to stay at the hotel from December 1
through 8.
According to T.G.T.’s testimony on direct examination,
the family moved to Grand Island in September 2021. T.G.T.
testified that the family stayed at the hotel for approximately

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
2 weeks. Later, she testified it was “[j]ust a couple of days.”
On cross-examination, T.G.T. agreed with defense counsel’s
statement that they arrived in Nebraska on December 1, 2021.
No other evidence was submitted regarding the date of the
family’s arrival in Grand Island.
The mother testified that during the singular night in the
hotel in Grand Island, she was with Aquino and the chil-
dren the entire time. According to the mother, Aquino went
to California on either December 2 or 3, 2021, to retrieve
a vehicle and some belongings. Aquino returned to Grand
Island between December 6 and 10. On December 10, she
and Aquino began employment with the same employer in
Grand Island.
T.G.T. testified that Aquino did not go back to California
after they moved to Grand Island. She could not remember
any time Aquino was not with them. She acknowledged, how-
ever, that the vehicle and the things the family had stored in
California were, by the time of trial, in Grand Island.
The mother testified that she and Aquino worked the same
shifts for the same employer for about 5 weeks in Grand
Island, from December 10, 2021, to January 14, 2022. They
both lost that employment and subsequently obtained jobs
with different employers. The mother testified this occurred
about 2 weeks before Aquino’s arrest on February 24, which
would be approximately February 10. At another point, how-
ever, the mother indicated they lost their employment a month
before, which would be approximately January 27.
The mother testified that until she and Aquino lost their
first jobs in Grand Island, they always worked the same shifts,
even in Puerto Rico. Furthermore, she was generally with
Aquino when he was not working. The mother indicated that
from the time the children came to the United States until
February 2022, if the children were ever alone with Aquino, it
“would have been a maximum of maybe five minutes.” After
beginning his new job in February 2022, Aquino worked
a different shift than T.G.T.’s mother. Aquino picked the

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
children up after school from their bus stop while the mother
was still at work.
(b) Report of Abuse to Boyfriend in Grand Island
T.G.T. testified that she did not have any friends before
moving to Grand Island. She spent most of her time in hotel
rooms caring for her brother. When she went to school in
North Carolina, she was not allowed to spend time with fellow
students outside of school hours.
In Grand Island, T.G.T. and her brother were enrolled in
school and attended in person. T.G.T. was in seventh grade.
T.G.T. developed a girlfriend-boyfriend relationship with a
fellow student who was also in seventh grade. She “felt close
to him, but not in a sexual way.” She testified, “He was the
only person I considered a friend after two years.” T.G.T.
was still not allowed to spend time with classmates outside
of school hours. She was not permitted to use social media,
but she had her own phone, which she used to message her
boyfriend.
Sometime around February 24, 2022, T.G.T. reported to the
boyfriend that she was being “violated” at home. T.G.T.’s first
language is Spanish. It was established at trial that “violated”
is a cognate of the Spanish word “violacion,” which can mean
rape. T.G.T. explained that she told the boyfriend that “[m]y
stepfather was raping me.”
The boyfriend testified that on February 24, 2022, he
reported what T.G.T. told him to a school educator. The edu-
cator informed a school counselor that same day, who called
the “Child Abuse Hotline.” T.G.T. was taken to a child advo-
cacy center, where she was interviewed by Officer Timothy
Champion.
(c) Sexual Assaults Before Moving to Grand Island
T.G.T. testified that Aquino had been “taking advantage” of
her since they lived in Puerto Rico and she was 11 years old.
Aquino told her not to tell anyone about the sexual assaults and
that “he could hurt my mother or me and my little brother.”

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
Also, she did not think her mother would believe her. T.G.T.
explained that even in Puerto Rico, Aquino told her mother
that T.G.T. was doing “incorrect things” with boys. In the
United States, Aquino told her mother that “he suspected that
I would have sex with . . . boys in the hotels.” As a result, the
mother subjected T.G.T. to two pregnancy tests.
Throughout her testimony, T.G.T. distinguished between
“rape,” which she defined as “nonconsensual sex,” and man-
ual stimulation of Aquino’s penis, which she called “mastur-
bating” him. She referred to giving Aquino fellatio as a form
of masturbating him with her mouth. T.G.T. testified that the
sexual assaults began with Aquino making her masturbate him
with her hand. Aquino asked T.G.T. to “help him,” because
his penis “hurt.” “He told me that I had to masturbate him
so that he didn’t have pain anymore.” Aquino demonstrated
how to touch his penis, and T.G.T. followed his instructions.
When Aquino had determined she “was already very good at
doing it with my hands,” he “told [her] there was a different
way to do it[,] with [her] mouth.” Aquino showed T.G.T. a
pornographic video so she could learn.
T.G.T. testified that the assaults involving masturbation
with T.G.T.’s hands or mouth were “[a]lways in the bath-
room” when T.G.T. was taking a shower. More specifically,
the assaults occurred when T.G.T. washed her hair. T.G.T.
explained that when she washes her hair, she spends more time
in the shower.
T.G.T.’s mother was not home when the assaults happened.
Her younger brother was usually home. T.G.T. explained that
Aquino would give her brother his phone to play games
or watch videos on. Her brother never witnessed any of
the assaults.
At trial, T.G.T. described three occasions where Aquino
raped her, which she described as penetrating her vagina with
his penis. T.G.T. testified that the first time was when they
were living in North Carolina at a relative’s house. The sec-
ond time was in a hotel in California, again in a bedroom. Her
mother and brother were not there.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
(d) Sexual Assaults in Grand Island
T.G.T. testified the third time Aquino raped her, which
was the last time, was in a bathroom at their house in Grand
Island as she was taking a shower, the day before she told
her boyfriend about what Aquino had been doing to her. On
cross-examination, she confirmed this was on approximately
February 22, 2022.
T.G.T. testified at trial that the first nonpenetrative sexual
contact with Aquino in Grand Island occurred about a week
after the family moved into the rental house. T.G.T. elaborated
that on multiple occasions in the bathroom of the rental house,
Aquino made her masturbate him with her hands. She did not
use her mouth. At trial, T.G.T. denied any recollection of any-
thing sexual occurring at the hotel.
Defense 	counsel 	repeatedly 	adduced 	during 	cross-
examination 	that 	T.G.T. 	had 	told 	Champion 	during 	the
February 24, 2022, forensic interview that Aquino had only
“violated” her once and that that singular vaginal penetration
had occurred at the hotel in Grand Island. Similarly, defense
counsel adduced at trial that in T.G.T.’s pretrial deposition
testimony, T.G.T. had said the only time Aquino vaginally
penetrated her was at the hotel in Grand Island.
Defense counsel also adduced during cross-examination
that in her pretrial deposition, T.G.T. had testified Aquino
made her touch his penis with her hands and “do it with [her]
mouth” at least three times while in Grand Island, with the last
time being “two days before [she] told everything.” Defense
counsel, emphasizing that T.G.T. was under oath during her
deposition, adduced that T.G.T. had described such sexual
touching as having occurred at both the hotel and the house.
On redirect, T.G.T. explained that when she said Aquino
penetrated her vaginally once, she was referring to the fact
that such penetration occurred only once in Nebraska. When
questioned as to timelines, T.G.T. testified, “The truth is I don’t
remember a lot of time.”

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
(e) Aquino’s Statements to Law Enforcement
Aquino was interviewed by Champion after his arrest.
According to Champion’s testimony at trial, Aquino said dur-
ing the interview that he had a responsibility to make sure
T.G.T. understood “what a male or man might expect and
what from a woman, how to treat her or take care of her when
nobody else wanted to be in her life.” Aquino told Champion
that T.G.T. “didn’t have the body of somebody her age.” He
also told Champion that T.G.T.’s menstrual cycle was some-
times irregular and that in the past, she had gone for 3 months
without a cycle.
Aquino explained that because the mother worked evenings,
“he was entrusted in ensuring that [T.G.T.] bathed” and “took a
shower.” In order to make sure T.G.T. washed her hair, Aquino
made T.G.T. keep the bathroom door open when showering.
Aquino reported during the interview that he and T.G.T.’s
mother were not able to spend a lot of time together due to
their work schedules. Aquino said their “sex life” had “taken
a decline.”
(f) Jury Instructions and Verdicts
In the jury instructions, the court set forth for the charge
of first degree sexual assault of a child that “on or about
December 1, 2021 through February 24, 2022,” in Hall County,
Aquino subjected T.G.T. to sexual penetration, Aquino was
then 25 years of age or older, and T.G.T was at least 12 but
less than 16 years of age. The court instructed the jury as to
the charge of third degree assault that “on or about December
1, 2021 through February 24, 2022,” in Hall County, Aquino
subjected T.G.T. to sexual contact, Aquino was then 19 years
of age or older, and T.G.T was at least 12 but less than 14 years
of age. Defense counsel did not object to the jury instructions.
The jury found Aquino guilty on both counts. Aquino was
sentenced to 45 to 60 years’ incarceration for first degree
sexual assault and 1 to 3 years’ incarceration for third degree
sexual assault, with the sentences to be served concurrently.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
3. Exclusion of Evidence of Emergency Room Visit
and Admission of “Prior Bad Acts”
The jury did not hear evidence relating to an emergency
room visit on March 25, 2022, where T.G.T. was seen by Dr.
Carmen Partida and reported “the prior history of a penetra-
tive sexual assault approximately 4 months ago from her step-
father.” Four months before March 25, 2022, would have been
November 25, 2021, 5 days before the mother said the family
arrived in Nebraska.
(a) Praecipe for Subpoena and Motion in Limine
On Friday, May 5, 2023, the date of the final status hear-
ing, with trial set to commence on Monday, May 8, and with
no prior notice to the State, Aquino filed a praecipe for a sub-
poena duces tecum to have Partida testify for the defense and
bring with her to trial all medical records pertaining to a visit
“on or about March 5, 2022.” Concurrently, defense counsel
filed a motion in limine to prohibit the jury from hearing
any evidence of “sexual contact/abuse outside of the state of
Nebraska or outside of any of the dates alleged on the infor-
mation.” The motion deadline established by the court was
April 28, 2023.
(b) Motion to Quash
That same date, the State responded with a motion to quash
the subpoena duces tecum on the grounds that it called for the
production of documents protected by doctor-patient privi-
lege; Aquino had failed to notify the Department of Health
and Human Services, which was T.G.T.’s legal guardian, of
the request; and Aquino had not filed a motion pursuant to
State v. Trammell 1 to obtain a crime victim’s protected health
and treatment information. A guardian ad litem had been
appointed for T.G.T. on June 22, 2022. In July, T.G.T. had
been removed from her mother’s care and placed in the cus-
tody of the Department of Health and Human Services, and
the State had been T.G.T.’s guardian since that time.
1 State v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (1989).

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318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
(c) Exhibits 1 and 2
Exhibits 1 and 2 contain the record of a March 25, 2022,
emergency room visit where T.G.T. was seen by Partida. There
was no visit on March 5. Both exhibits are found in a sealed
bill of exceptions.
Exhibit 1 was marked for purposes of the hearing on the
motion to quash the subpoena, which took place at the final
status hearing. Although the discussion between defense coun-
sel and the prosecutor indicates that the entire 9-page docu-
ment was taken to the hearing by defense counsel and shown
to the prosecutor, exhibit 1 consists of only the first page of an
“emergency department encounter” describing a date of service
of March 25, 2022, and a complaint “of a prior sexual assault”
of T.G.T. “approximately 4 months ago.” It sets forth that
T.G.T. was taken to the emergency room by her mother, “by
private vehicle,” because, according to the mother, “[T.G.T.’s]
story of the events of the assault and the interactions between
her and [Aquino] have varied and her mother is seeking clari-
fication regarding events.”
Exhibit 2 was marked at trial for identification during
defense counsel’s cross-examination of the mother. It contains
the full report of the “emergency department encounter.” There
was “no indication for [an] exam [by a sexual assault nurse
examiner] today or any other intervention,” and “[T.G.T.] con-
firmed the prior history of a penetrative sexual assault approxi-
mately 4 months ago from her stepfather.”
(d) Relevancy, Offer of Proof, and Prior Bad
Act Argument at Final Status Hearing
At 	the 	May 	5, 	2023, 	status 	hearing, 	defense 	counsel
explained he wished to call Partida for the sole purpose of
testifying that, during an examination of T.G.T. on March 25,
2022, T.G.T. reported that the sexual assault occurred 4 months
prior. Defense counsel said what Partida’s testimony would
consist of:
I subpoenaed [Partida] for the only purpose of [her]
taking the stand and saying that [T.G.T.] went to the

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
hospital, spoke to [her], and reported to [her] that the
alleged sexual assault occurred four months prior to the
date of this document, March 25, 2022. That’s it.
Defense counsel explained he wanted Partida to bring the
requested documents “in case she has to refresh her recollec-
tion.” Defense counsel stated he did not plan on offering any
medical report into evidence.
Defense counsel said Partida’s testimony was important
because, according to the mother’s anticipated testimony, the
family did not move to Grand Island until December 1, 2021.
Thus, Partida’s testimony would show that the sexual assault
reported during the emergency room visit occurred outside
of Nebraska and outside of the dates alleged in the informa-
tion. As a result, the assault was a prior bad act, and any evi-
dence thereof should be excluded pursuant to defense counsel’s
motion in limine under Neb. Rev. Stat. § 27-404 (Cum. Supp.
2024). In response to the district court’s question, defense
counsel specifically denied that the evidence pertaining to
T.G.T.’s report during the emergency room visit would be
impeachment of T.G.T.
(e) Pretrial Discovery
The history of pretrial discovery is complicated. Aquino’s
motion for pretrial discovery had been filed by the public
defender on May 6, 2022. Aquino had asked, pursuant to Neb.
Rev. Stat. § 29-1912 (Cum. Supp. 2024), to inspect, copy,
or photograph his prior criminal record, recorded testimony
before any grand jury, results and reports of physical or men-
tal examinations and scientific tests or experiments made in
connection with the case, tangible things that could be used as
evidence, and investigatory reports by law enforcement.
The public defender did not specifically request the names
and addresses of witnesses on whose evidence the charges are
based, as is permitted by § 29-1912. The information filed in
district court had already listed the names and cities of resi-
dence of 18 witnesses.

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318 Nebraska Reports
STATE v. TORRES AQUINO
Cite as 318 Neb. 771
The public defender’s motion also requested that the State
furnish all exculpatory evidence in the possession of the pros-
ecution and law enforcement.
The public defender set forth in his motion that he had no
objection to the court’s entering a reciprocal order pursuant to
Neb. Rev. Stat. § 29-1916 (Cum. Supp. 2024).
On May 6, 2022, the district court entered an order gener-
ally granting Aquino’s motion for discovery and stating that
“[p]ursuant to . . . §29-1916, [Aquino] is ordered to provide
reciprocal discovery to the State.” The court ordered both par-
ties to comply within 30 days.
Beginning in June 2022, the State filed notices of compli-
ance with discovery, describing material generated by law
enforcement and sent to Aquino. On July 26, Aquino, through
the public defender, filed a notice of compliance describing
nine pages generated by the public defender and sent to the
State on July 27, further declaring that Aquino “possesses no
other evidence.”
Private defense counsel entered his appearance on July
26, 2022. The public defender moved to withdraw on that
same date.
On May 2, 2023, approximately 9 months after entering
his appearance for Aquino and 3 days before the final status
hearing, private defense counsel sent to the State, via email,
an evidence request letter. Defense counsel requested that
the State produce, among other things, “[a] complete written
summary of testimony to be presented by any State witness
called as an expert witness including the witness’ opinions,
the basis and the reasons therefore [sic], and his/her qualifica-
tions”; “[t]he existence of any witness known to the State who
is favorable to the defense”; and “[a]ny and all information
that tends to detract from the credibility or probative value
of the testimony and/or evidence that the State anticipates it
will present at trial.” Furthermore, defense counsel requested
that the State produce for the defense’s inspection “[a]ny
statements made or adopted by witnesses which the State

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STATE v. TORRES AQUINO
Cite as 318 Neb. 771
intends to call to testify at any hearing (including a sentencing
hearing) connected with the above-referenced case.” Defense
counsel, on behalf of Aquino, requested that the State com-
ply or inform the defense of its intent not to comply within
10 days, reserving the right to oppose the introduction at
any hearing of any evidence that the State failed to produce.
Exhibit 3, which consists of the emailed discovery request,
was marked at trial by defense counsel as an offer of proof
in relation to a defense objection to testimony by Champion
allegedly involving specialized knowledge about delayed dis-
closures of sexual assaults.
It appears that following the May 2, 2023, email request,
the State filed a second supplemental notice of compliance,
describing the addition of 86 pages generated by law enforce-
ment. The State subsequently filed additional notices of com-
pliance, making the total number of pages 257. The State
set forth that it was not aware of any exculpatory evidence
not contained in the information set forth in the notice of
compliance.
Partida was not mentioned in any of the law enforcement
reports and was not on the State’s witness list.
At the final status hearing, the prosecutor noted that defense
counsel had “disclosed a number of witnesses via email . . .
some time ago,” after he took over representation, and that
“[a]t no time has he disclosed the name of [Partida] as a poten-
tial witness for the defense.”
(f) Source and Disclosure of
Emergency Room Record
The prosecutor explained at the final status hearing that
she was not familiar with Partida and that the defense did not
“receive this discovery from [her].” The prosecutor said the
State was not in possession of any medical records of T.G.T.,
and law enforcement did not request that T.G.T. be taken for a
medical examination. In fact, the prosecutor “had no idea this
medical examination took place.”

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Defense counsel responded that the record of the emergency
room visit was “what [he had] in [his] trial notebook.” Defense
counsel had “just dug down to a bunch of information this
week,” “in the massive discovery” that he had. Defense coun-
sel did not learn about Partida as a possible witness until he
reviewed the documents in his notebook, which apparently had
not been until shortly before the final status hearing.
Defense counsel did not know how or when the medical
record came into his possession. He did not know “whether
[the medical record] came from previous counsel or where [it]
came from.” He told the court, “I just know that when we put
our trial notebook together, I have those documents in my trial
notebook.”
Defense counsel explained he did not personally receive the
medical record from T.G.T.’s mother. He had never met the
mother. Defense counsel said at the final status hearing that
he believed the medical examination was at the request of law
enforcement. Later, during defense counsel’s cross-examination
of the mother at trial, defense counsel was permitted to show
the mother exhibit 2 without revealing its contents to the jury.
The mother testified that she took T.G.T. to the emergency
room of the local hospital. At the end of the hospital visit,
she requested documents, which she took, the day after, to
Champion. Additionally, the mother testified that she thought
she had given exhibit 2 to Aquino’s previous attorney.
Champion testified at trial that the mother contacted him on
March 10, 2022, and that he had no contact with her thereafter.
He testified that he had never directed T.G.T.’s mother to take
T.G.T. to the hospital, nor did the mother ever provide him
with the documentation in exhibit 2, and that in fact, during
trial was the first time he had seen exhibit 2.
(g) Arguments at Final Status Hearing
The prosecutor expressed that the failure to disclose the
emergency room record may be a violation of the recipro-
cal discovery agreement: “I don’t know who he received this

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from. If this is discovery that he received from his client that
should have been disclosed pursuant to our reciprocal discov-
ery agreement, then I think we have an issue.” The prosecutor
explained she was taken by surprise by the praecipe for sub-
poena duces tecum, but also believed the information pertain-
ing to the medical report was not relevant and could present a
“Trammell issue.” 2
At no point during the final status hearing did defense
counsel argue that, under the reciprocal discovery order, the
defense was not obliged to disclose potential witness testi-
mony or medical examinations. To the contrary, when ques-
tioned repeatedly by the district court whether defense counsel
believed the defense had an obligation under the reciprocal
discovery order to disclose the medical record, if it was never
in the State’s possession, defense counsel expressed only that
“we are still on time,” “there’s no bad faith,” and “things like
this happen[].” Defense counsel pointed out that the State had
also sent him some last-minute disclosures. During trial, in
relation to an offer of exhibit 2 and a request that the court
revisit its discovery sanction order, defense counsel asserted
for the first time that the medical record therein was not sub-
ject to the reciprocal discovery order, for the reason that “[t]he
defense is not using the exhibit in its case in chief.”
(h) District Court’s Orders of Discovery Sanction
and Quashing Subpoena Duces Tecum
The district court denied Aquino’s motion in limine. The
court reasoned that the prior sexual assaults were inextricably
intertwined with the charged crimes. It then granted the State’s
motion to quash the subpoena duces tecum. The court found
that Aquino had failed to provide the medical record or the
identity of Partida to the State prior to May 5, 2023, for a jury
trial beginning May 8, in violation of the court’s reciprocal
discovery order.
2 See id.

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“Based upon the significance of the [discovery] violation,”
and citing to State v. Sierra 3 and Neb. Rev. Stat. § 29-1919
(Cum. Supp. 2024), in its written order, the court “prohibit[ed]
. . . Partida from being called as a witness by [Aquino].”
During its oral pronouncement at the final status hearing, the
court additionally stated that under State v. Trammell, it would
not allow Partida to bring the medical record to trial. 4
The district court said it would reconsider its order prohib-
iting Partida from testifying at trial if Aquino could provide,
before trial, evidence that Partida was disclosed to the State.
At no point during the pretrial hearing or at trial did defense
counsel ask the court for permission to subpoena Partida for
the limited purpose of having her appear to make an offer
of proof.
(i) Offer of Exhibit 2 at Trial
Defense counsel offered exhibit 2 at trial after the mother
identified it as the medical document she provided to Champion.
The prosecutor objected on the grounds of hearsay, relevance,
privilege, and the discovery violation. The court sustained the
objection on all grounds.
4. Appeal to Court of Appeals
Aquino timely appealed his convictions to the Court of
Appeals. As relevant to the assigned errors on further review,
Aquino assigned to the Court of Appeals that (1) under State
v. Woods, 5 the district court erred in determining he had com-
mitted a discovery violation for failing to disclose Partida and
the documentation in exhibits 1 and 2, and (2) alternatively,
he received ineffective assistance when trial counsel failed to
disclose Partida’s identity and the documentation in exhibit 2,
3 State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
4 See State v. Trammell, supra note 1. See, also, State v. Kinser, 259 Neb.
251, 609 N.W.2d 322 (2000).
5 State v. Woods, 255 Neb. 755, 587 N.W.2d 122 (1998).

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as obligated either by the discovery order or by operation of
Trammell. 6
The Court of Appeals affirmed Aquino’s convictions. It
held that trial counsel failed to preserve the assigned trial
court error for appellate review. First, trial counsel “made no
attempt during trial to question T.G.T. about the alleged state-
ment she made to . . . Partida,” and this was not prohibited
by the district court’s orders. 7 Second, trial counsel did not
attempt to impeach T.G.T. with the medical record, “such that
the trial court never had the opportunity to revisit its pretrial
ruling.” 8 Third, trial counsel “did not present an offer of proof
at trial of what . . . Partida would have testified to if allowed
to testify.” 9
On this last point, the Court of Appeals ignored Aquino’s
offer of proof at the final status hearing asserting that Partida
would testify consistent with the medical record of T.G.T.
that said the reported sexual assault occurred approximately
4 months prior to the date of the medical record, March 25,
2022. It also ignored the offer of exhibit 1 at the final status
hearing and the offer of exhibit 2 at trial.
The Court of Appeals instead held that to preserve the ques-
tion of whether a trial court has erred in issuing a discovery
sanction, the “‘offer of proof must be made at trial.’” 10 The
court of Appeals relied on State v. Schreiner, 11 which involved
the application of Neb. Rev. Stat. § 27-103 (Reissue 2016) to
court orders granting the State’s pretrial motions in limine to
exclude inadmissible and prejudicial evidence at trial. Schreiner
did not involve a discovery sanction. We held in Schreiner
6 See State v. Trammell, supra note 1.
7 State v. Aquino, No. A-23-596, 2024 WL 3873804 at *6 (Neb. App. Aug.
20, 2024).
8 Id. at *9.
9 Id. at *6.
10 Id.
11 State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).

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that the offer of proof must be made at trial because “[a]
motion in limine is only a procedural step to prevent prejudi-
cial evidence from reaching the jury” and does not “obtain a
final ruling upon the ultimate admissibility of the evidence.” 12
After concluding that the trial error had not been preserved,
the Court of Appeals moved on to the claim of ineffective
assistance. It found Aquino was not prejudiced by trial coun-
sel’s allegedly deficient conduct, because the only possible
prejudice from the court’s orders resulting from trial counsel’s
alleged deficiency arose from trial counsel’s failure to make
an offer of proof at trial or question T.G.T. about her state-
ment to Partida that the sexual assault occurred approximately
4 months before the emergency room visit. According to the
Court of Appeals, since neither of these failures was spe-
cifically assigned as error and argued on appeal, they were not
before the Court of Appeals.
III. ASSIGNMENTS OF ERROR
In his memorandum brief in support of further review,
Aquino assigns the Court of Appeals erred in finding (1) that
Aquino had failed to preserve error relating to the trial court’s
ruling that quashed the subpoena of Partida and barred admis-
sion of the documentation in exhibits 1 and 2 and (2) that
Aquino’s assignments of error “regarding trial counsel’s inef-
fective assistance regarding [the] Partida evidence [were] both
too finely tailored and insufficiently broad to be effective.”
IV. STANDARD OF REVIEW
[1] Discovery in a criminal case is generally controlled
by either a statute or court rule. Therefore, unless granted
as a matter of right under the Constitution or other law, dis-
covery is within the discretion of a trial court, whose ruling
will be upheld on appeal unless the trial court has abused its
discretion. 13
12 Id. at 407, 754 N.W.2d at 755.
13 State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014).

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[2] The exclusion of evidence in a criminal case as a sanc-
tion for a discovery violation is subject to harmless error
review. 14
[3] Whether a claim of ineffective assistance of trial counsel
may be determined on direct appeal is a question of law. 15
V. ANALYSIS
The issues presented on further review revolve around the
district court’s finding that Aquino committed a discovery vio-
lation and barring, as a sanction, evidence at trial that T.G.T.
reported during a medical examination on March 25, 2022,
“the prior history of a penetrative sexual assault approxi-
mately 4 months ago from her stepfather,” which would be
approximately November 25, 2021. The court’s pretrial orders
expressly prohibited Aquino from calling Partida as a witness
or bringing with her to trial any medical records pertaining to
the emergency room visit. The court also orally pronounced
that Aquino had not followed the discovery procedures rel-
evant to that privileged medical record. At trial, after defense
counsel asked the court to revisit its pretrial order and offered
exhibit 2 into evidence, the court sustained the State’s objec-
tions to the medical record on grounds of, among other things,
privilege and the discovery violation.
Aquino does not directly take issue with the trial court’s
rejection of his proffer of exhibit 2 at trial, but argues the trial
court erred by “excluding evidence related to Exhibit 2 and
testimony from . . . Partida.” 16 Aquino explains that the dis-
covery sanction “eliminated [his] ability to present extrinsic
14 See, e.g., Thomas v. Wyrick, 687 F.2d 235 (8th Cir. 1982); U.S. v. Gray-
Burriss, 791 F.3d 50 (D.C. Cir. 2015); State v. Schopp, 653 So. 2d 1016
(Fla. 1995); Williams v. State, 256 Ga. App. 249, 568 S.E.2d 132 (2002);
People v. Echols, 146 Ill. App. 3d 965, 497 N.E.2d 321, 100 Ill. Dec. 343
(1986); State v. Martens, 996 N.W.2d 249 (Minn. App. 2023); Jones v.
City of Seattle, 179 Wash. 2d 322, 314 P.3d 380 (2013).
15 State v. Rezac, ante p. 352, 15 N.W.3d 705 (2025).
16 Brief for appellant at 13.

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evidence of a prior inconsistent statement affecting a material
element of the crime.” 17 Aquino asserts that the order quashing
the subpoena denied his ability to make an offer of proof “with
the use of the witness.” 18
Aquino does not raise on appeal that the court erred in fail-
ing to impose a lesser sanction for the discovery violation, and
he did not make that argument below. 19 He argues only that
he did not violate the discovery order. He explains that while
the public defender’s motion for discovery that preceded the
court’s reciprocal discovery order requested results and reports
of physical or mental examinations, it did not request wit-
nesses. Furthermore, Aquino argues that because the evidence
was for possible impeachment of T.G.T., it was not evidence
“[t]he defendant intends to produce at trial,” as described by
§ 29-1916(1)(b).
1. Failure to Make Offer of Proof at Trial
We hold that Aquino adequately raised the matter of the
discovery sanction and order to quash through his offer of
exhibit 2 and the evidence adduced pertaining to whether there
was a discovery violation. To the extent a defendant must give
the district court an opportunity at trial to revisit the merits of
its pretrial order of a discovery sanction, an issue we need not
decide in this appeal, trial counsel adequately did so when he
offered exhibit 2 at trial and presented evidence that T.G.T.’s
mother had given the medical record to Champion.
[4] Section 27-103 provides:
(1) Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of
the party is affected, and:
. . . .
17 Id. at 14.
18 Id. at 17.
19 See State v. Cunningham, 197 Or. App. 264, 105 P.3d 929 (2005).

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(b) In case the ruling is one excluding evidence, the
substance of the evidence was made known to the judge
by offer or was apparent from the context within which
questions were asked.
(2) The judge may add any other or further statement
which shows the character of the evidence, the form in
which it was offered, the objection made, and the ruling
thereon. He may direct the making of an offer in question
and answer form.
(3) In jury cases, proceedings shall be conducted, to the
extent practicable, so as to prevent inadmissible evidence
from being suggested to the jury by any means, such as
making statements or offers of proof or asking questions
in the hearing of the jury.
(4) Nothing in this rule precludes taking notice of plain
errors affecting substantial rights although they were not
brought to the attention of the judge.
Section 27-103 did not change the rule that where evidence is
excluded, an offer of proof is generally a prerequisite to review
on appeal. 20
[5] An offer of proof brings the substance of the evidence
before the trial court and the appellate court so that both may
determine whether the refusal to accept the evidence was
error. 21 A commentator has observed that the offer of proof
requirement serves two policy goals: (1) aiding an appellate
court in determining if trial error influenced the trier’s decision
and (2) giving the trial judge sufficient information to aid in
making a sound ruling. 22 When the condition of the record and
form of the question itself show that it is relevant and compe-
tent, no offer of proof is necessary. 23
20 State v. Kramer, 238 Neb. 252, 469 N.W.2d 785 (1991).
21 State v. Bennett, 2 Neb. App. 188, 508 N.W.2d 294 (1993).
22 Roger C. Park & Aviva Orenstein, Trial Objections Handbook § 1:11 (2d
ed. 2024).
23 State v. Kramer, supra note 20; Fite v. Ammco Tools, Inc., 199 Neb. 353,
258 N.W.2d 922 (1977).

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The Court of Appeals, in finding that Aquino had failed to
preserve the correctness of the discovery sanction by failing
to renew his offer of proof at trial, relied on cases address-
ing appellants’ challenges to court orders granting motions
in limine to exclude evidence at trial on the ground that the
evidence was inadmissible. This case law is inapposite to the
case at bar.
The definition of “in limine” is “‘[o]n or at the threshold;
at the very beginning; preliminarily.’” 24 A motion in limine is
but “‘a tentative, interlocutory, precautionary ruling by the trial
court reflecting its anticipatory treatment of the evidentiary
issues.’” 25
As we explained in Schreiner, in the context of a pretrial
order granting the State’s motion in limine to exclude inadmis-
sible witness testimony, unless “the substance of the evidence
was made known to the judge by offer or was apparent from
the context within which questions were asked,” “to predicate
error upon a ruling of the court refusing to permit a witness to
testify, or to answer a specific question,” the record must show
an offer to prove the facts sought to be elicited, “[a]nd that
offer of proof must be made at trial.” 26 We elaborated that
[b]ecause overruling a motion in limine is not a final rul-
ing on the admissibility of evidence and does not present
a question for appellate review, a question concerning
the admissibility of evidence which is the subject of a
motion in limine is raised and preserved for appellate
24 Luce v. United States, 469 U.S. 38, 40 n.2, 105 S. Ct. 460, 83 L. Ed. 2d
443 (1984), quoting Black’s Law Dictionary 708 (5th ed. 1979).
25 State v. Schrock, 2013 Ohio 441, ¶ 8, 986 N.E.2d 1068, 1072 (Ohio App.
2013).
26 State v. Schreiner, supra note 11, 276 Neb. at 407, 754 N.W.2d at 755.
Accord State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013). See, also,
State v. King, 316 Neb. 991, 7 N.W.3d 884 (2024); BCL Properties v.
Boyle, 314 Neb. 607, 992 N.W.2d 440 (2023).

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review by an appropriate objection or offer of proof dur-
ing trial. 27
“A motion in limine is only a procedural step to prevent preju-
dicial evidence from reaching the jury” and does not “obtain a
final ruling upon the ultimate admissibility of the evidence.” 28
In this case, we are not presented with an order granting a
motion in limine. The court’s exclusion of the evidence and
order quashing the subpoena, as a discovery sanction, do not
concern the court’s anticipatory treatment of the evidence
under the Nebraska Evidence Rules, which must be revisited in
the context of the trial itself.
[6] Courts have frequently refused to find reversible error
where the defendant failed to make an offer of proof of the
substance of the evidence excluded as a discovery sanction. 29
An aggrieved party must ensure that the trial record is suf-
ficient for an appellate court to review whether the trial court
committed reversible error in imposing a sanction for a dis-
covery violation, whether the chosen sanction was an abuse
of discretion, and whether the exclusion of the evidence was
harmless. 30 This obligation must be viewed in light of what
is reasonably possible in light of the court’s orders, but a
party cannot prevent an appellate court from affirming under
harmless error by failing to create a record that could have
been made. It may also behoove a litigant to give the district
27 State v. Schreiner, supra note 11, 276 Neb. at 407, 754 N.W.2d at 755.
See, also, State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002); State
v. Tomrdle, 214 Neb. 580, 335 N.W.2d 279 (1983).
28 State v. Schreiner, supra note 11, 276 Neb. at 407, 754 N.W.2d at 755.
29 See Annot., 9 A.L.R.4th 837 (1981).
30 See, e.g., State v. Dorow, 116 Ariz. 294, 569 P.2d 236 (1977); Dist. of
Col. v. Kora & Williams Corp., 743 A.2d 682 (D.C. App. 1999); Shaw v.
Sundaram, 108 N.E.3d 923 (Ind. App. 2018); Dewitz by Nuestel v. Emery,
508 N.W.2d 334 (N.D. 1993); Walker v. Kleiman, 896 S.W.2d 413 (Tex.
App. 1995); Estate of Fahnlander, 81 Wash. App. 206, 913 P.2d 426
(1996); In re Paternity of HLG, 368 P.3d 902 (Wy. 2016). See, also, 9
A.L.R.4th, supra note 29. But see Pitcher v. Centene Corp., 602 S.W.3d
216 (Mo. App. 2020).

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court an opportunity to revisit a pretrial discovery sanction.
But neither the objective of ensuring an adequate record for
appellate review nor the objective of giving the trial court an
opportunity to revisit its ruling must be accomplished through
a formal offer of proof at trial.
[7] In our case law reviewing pretrial court orders quashing
subpoenas, we have never required that an objection and offer
of proof be made at trial to preserve the error. 31 Likewise, we
have not required an offer of proof at trial to review whether a
court abused its discretion in issuing a pretrial discovery sanc-
tion excluding evidence. 32 Other courts similarly recognize that
the rules governing the need to renew an offer of proof at trial
to preserve error relating to preliminary evidentiary rulings on
admissibility do not apply to evidence barred or stricken as a
sanction for a discovery violation. 33
In this case, defense counsel adequately ensured that the trial
record is sufficient for an appellate court to review whether
the trial court committed reversible error in imposing the
contested discovery sanction. Defense counsel also gave the
district court an opportunity to revisit its prior ruling excluding
Partida’s testimony and the medical record as a sanction for a
discovery violation at trial; as we have noted, defense counsel
offered exhibit 2, requested that the district court revisit its
discovery sanction order, and argued that the medical record
was not subject to the reciprocal discovery order.
Without deciding whether the renewal at trial of questions
pertaining to a discovery sanction is necessary to preserve for
appeal the trial court’s alleged error in imposing the sanction,
31 See, e.g., State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020); State v.
Valentino, 305 Neb. 96, 939 N.W.2d 345 (2020); Gallner v. Gallner, 257
Neb. 158, 595 N.W.2d 904 (1999).
32 See, State v. Short, 310 Neb. 81, 964 N.W.2d 272 (2021); State v. Sierra,
supra note 3; Hill v. Tevogt, 293 Neb. 429, 879 N.W.2d 369 (2016).
33 See Blair v. Ta-Seattle East No. 176, 171 Wash. 2d 342, 254 P.3d 797
(2011).

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we hold that defense counsel adequately preserved the issue of
whether the district court erred in this case.
2. Harmless Trial Court Error
Considering exhibit 2 and defense counsel’s offer of proof at
the pretrial hearing as to what Partida would have testified to,
we need not decide whether defense counsel committed a dis-
covery violation. We also need not determine whether the court
abused its discretion in excluding the evidence as opposed to
imposing a lesser sanction, which, in any event, is not argued
by Aquino on appeal. Assuming without deciding that the trial
court erred in finding a discovery violation and imposing the
sanction of barring Partida from testifying or the defense from
utilizing exhibit 2 as extrinsic evidence of a prior inconsistent
statement, we hold that such error was harmless.
T.G.T. testified at trial that Aquino vaginally penetrated
her around February 22, 2022, in the house in Grand Island.
Aquino points out this was inconsistent with her report to
Partida that Aquino had vaginally penetrated her on approxi-
mately November 25, 2021.
Aquino’s principal contention as to how he was harmed
by the court’s sanctions seems to revolve around his alleged
inability to impeach T.G.T.’s credibility based on this incon-
sistency. Aquino does not suggest that T.G.T.’s prior inconsist-
ent statement to Partida was relevant to venue or territorial
jurisdiction. Aquino simply describes the timeframe T.G.T.
reported to Partida as preceding the dates alleged in the
original information. Aquino does not acknowledge that the
information was amended to conform to the evidence and that
the jury was instructed it must decide whether the assaults
occurred on or about December 1, 2021, through February
24, 2022.
[8,9] The exact date of commission is not a substantive ele-
ment of first or third degree sexual assault of a child. 34 The
statutes governing sexual assault of children recognize and
34 State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (2015).

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accommodate the unique circumstances surrounding young
victims, who “are often unsure of the date on which the assault
or assaults occurred” and “may have no meaningful reference
point of time or detail by which to distinguish one specific
act from another.” 35 With that in mind, T.G.T.’s prior report
to Partida of penetrative sexual assault is sufficiently within
the date range of the instructions that it occurred on or about
December 1, 2021, through February 24, 2022.
[10] Errors, other than structural errors, which occur within
the trial and sentencing process, are subject to harmless error
review. 36 This is consistent with § 27-103, which states that
error may not be predicated upon a ruling which excludes evi-
dence unless a substantial right of a party is affected, and Neb.
Rev. Stat. § 29-2308(1) (Reissue 2016), which provides that
no judgment in a criminal case shall be set aside or new trial
granted because of the rejection of evidence, unless a substan-
tial miscarriage of justice has actually occurred.
[11-14] Harmless error jurisprudence recognizes that not all
trial errors, even those of constitutional magnitude, entitle a
criminal defendant to the reversal of an adverse trial result. 37
An error in admitting or excluding evidence in a criminal
trial, whether of constitutional magnitude or otherwise, is
prejudicial unless it can be said that the error was harmless
beyond a reasonable doubt. 38 When determining whether an
alleged error is so prejudicial as to justify reversal, courts
generally consider whether the error, in light of the totality of
the record, materially influenced the outcome of the case. 39
Harmless error review looks to the basis on which the trier of
fact actually rested its verdict; the inquiry is not whether in
a trial that occurred without the error a guilty verdict would
35 Id. at 343, 873 N.W.2d at 456 (internal quotation marks omitted).
36 State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).
37 State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018).
38 State v. Matthews, 289 Neb. 184, 854 N.W.2d 576 (2014).
39 See State v. Kidder, supra note 37.

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surely have been rendered, but, rather, whether the actual
guilty verdict rendered in the questioned trial was surely unat-
tributable to the error. 40
[15-17] Whether error is harmless in a particular case
depends upon a host of factors. 41 Whether the exclusion of
witness testimony is harmless depends upon the importance
of the witness’ testimony in the prosecution’s case, whether
the testimony was cumulative, the presence or absence of evi-
dence corroborating or contradicting the testimony of the wit-
ness on material points, the extent of cross-examination oth-
erwise permitted, and the overall strength of the prosecution’s
case. 42 Where the evidence is cumulative and there is other
competent evidence to support the conviction, the improper
admission or exclusion of evidence is harmless beyond a rea-
sonable doubt. 43
[18] While Aquino was barred from calling Partida to tes-
tify and his offer of exhibit 2 at trial was denied, the Court
of Appeals correctly observed that Aquino was not prohibited
from asking T.G.T. what she said to Partida, and he chose not
to do so. Aquino argues that, considering the prohibition from
using extrinsic evidence of the prior inconsistent statement, it
was “madness” for the Court of Appeals to suggest he should
have used the medical report authored by an unavailable third
party “to impeach a teenage assault victim through the aid of
an interpreter.” 44 But it is speculative that T.G.T. would have
even denied making the statement. If a witness is questioned
about the prior inconsistent statement and admits to mak-
ing it, then counsel is precluded from introducing extrinsic
40 State v. Pangborn, supra note 36.
41 State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019).
42 Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674
(1986).
43 State v. Matthews, supra note 38.
44 Brief for appellant in support of petition for further review at 6.

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evidence of the statement itself. 45 In other words, any prohibi-
tion of presenting extrinsic evidence of the inconsistent state-
ment would have been immaterial.
Furthermore, an attempt to impeach T.G.T. could have raised
a new aspect of relevancy of the excluded evidence that had
not been considered at the pretrial hearing because defense
counsel had specifically denied he wished to introduce the evi-
dence for that purpose. That new relevancy may have changed
the court’s decision to exclude the evidence as the sanction.
Even if Aquino was hindered by the discovery sanction
in his ability to confront T.G.T. with her prior inconsistent
statement, he was not materially harmed. As to the charge
of third degree assault, the barred evidence has little to no
relevance. There was abundant testimony that Aquino made
T.G.T. perform manual stimulation of Aquino’s penis on mul-
tiple occasions while they lived in Grand Island, and there is
no indication from the medical report that Partida questioned
T.G.T. as to whether there was a history of nonpenetrative
sexual touching. Confirming a prior history of a penetrative
sexual assault is not inconsistent with having been the victim
of nonpenetrative sexual assault.
As for first degree sexual assault, even if exhibit 2 is read as
T.G.T.’s indicating the reported incident was the only penetra-
tive sexual assault that had occurred, that statement is consist-
ent with T.G.T.’s initial reports, adduced at trial, that a singular
penetrative assault occurred when the family first arrived in
Grand Island. Also, defense counsel adduced T.G.T.’s deposi-
tion testimony that Aquino penetrated her mouth with his penis
several times while they were living in Grand Island.
Relatedly and most importantly, defense counsel confronted
T.G.T. with inconsistent statements similar to the statement
made to Partida. Defense counsel confronted T.G.T. with
both her prior report to Champion and her prior deposition
45 See, Neb. Rev. Stat. § 27-613 (Reissue 2016); R. Collin Mangrum,
Mangrum on Nebraska Evidence § 27-613 (2024).

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testimony describing only one incident of vaginal penetration
occurring at the hotel sometime around December 1, 2021.
This was approximately 4 months before the March 25, 2022,
emergency room visit, making the evidence adduced on cross-
examination cumulative of the barred evidence of T.G.T.’s
report to Partida.
Defense counsel made it abundantly clear to the jury that
T.G.T. was describing at trial incidents of sexual assault that
she had never previously reported. T.G.T.’s credibility as to the
times, places, and details of the sexual assaults described by
T.G.T. at trial was thoroughly tested.
Accordingly, the court’s restrictions on confronting T.G.T.
with extrinsic evidence of her statement to Partida were harm-
less beyond a reasonable doubt. The trial court’s rulings, even
if they were found to be in error, did not materially influence
the outcome of the case, considering the totality of the record.
3. Record Affirmatively Shows No Prejudice
From Allegedly Deficient Conduct
Having found, for reasons different from those articulated
by the Court of Appeals, that the district court did not com-
mit reversible error in imposing the discovery sanction, we
find, also for different reasons than those stated by the Court
of Appeals, no merit to Aquino’s alternative claim of ineffec-
tive assistance of trial counsel. Because the record establishes
that the court’s sanctions were harmless beyond a reasonable
doubt, even if trial counsel was deficient in failing to disclose
Partida’s identity and the documentation in exhibit 2, Aquino
is unable to establish prejudice from the alleged deficient con-
duct. The burden on the defendant to demonstrate prejudice
on an ineffective assistance of counsel claim is a higher bar to
relief than harmless error. 46
[19-21] The record on appeal is sufficient to adequately
review the question on ineffective assistance if it establishes
46 See Justin Murray, Prejudice-Based Rights in Criminal Procedure, 168 U.
Pa. L. Rev. 277 (2020).

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either that trial counsel’s performance was not deficient, that
the appellant will not be able to establish prejudice as a matter
of law, or that trial counsel’s actions could not be justified as
a part of any plausible trial strategy. 47 To prevail on a claim
of ineffective assistance of counsel, the defendant must show
both deficient performance and prejudice. 48 To show prejudice,
the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the pro-
ceeding would have been different. 49
Having already found that the exclusion of T.G.T’s report
to Partida of a “prior history of a penetrative sexual assault
approximately 4 months ago” was harmless error, we find, for
similar reasons, that the trial record establishes as a matter of
law that Aquino was not prejudiced by any deficient conduct
of trial counsel in failing to disclose the medical report or
Partida’s identity, or to follow Trammell procedures for the
privileged medical information. 50
VI. CONCLUSION
For the foregoing reasons, we affirm the decision of the
Court of Appeals affirming Aquino’s convictions of sexual
assault of a child in the first and third degree.
Affirmed.
47 See State v. Rezac, supra note 15.
48 See State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).
49 Id.
50 See State v. Trammell, supra note 1.