State v. Hearnes

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Nebraska Court of Appeals Advance Sheets
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STATE v. HEARNES
Cite as 34 Neb. App. 182
State of Nebraska, appellee, v. Robert L.
Hearnes, Sr., appellant.
___ N.W.3d ___
Filed March 31, 2026. 	No. A-24-753.
1. Trial: Joinder: Appeal and Error. A trial court’s ruling on a motion for
consolidation of prosecutions properly joinable will not be disturbed on
appeal absent an abuse of discretion.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
3. Hearsay: Appeal and Error. Apart from rulings under the residual
hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination to admit evidence over a hearsay
objection or exclude evidence on hearsay grounds.
4. Hearsay. Whether a statement was both taken and given in contempla-
tion of medical diagnosis or treatment is a factual finding made by the
trial court in determining the admissibility of the evidence.
5. 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.
6. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
7. Criminal Law: Trial: Joinder. Joinder of multiple offenses for a
single trial is favored and is the rule rather than the exception in crimi-
nal cases.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:36 AM CDT

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STATE v. HEARNES
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8. Trial: Joinder: Appeal and Error. Whether offenses were properly
joined involves a two-stage analysis: (1) whether the offenses were suf-
ficiently related so as to be joinable and (2) whether the joinder was
prejudicial to the defendant.
9. Criminal Law: Joinder: Presumptions. A clear presumption exists in
favor of a joinder of offenses and against severance.
10. Trial: Joinder: Proof. A defendant opposing joinder of charges must
meet a high burden of proving prejudice. To carry that burden, the
defendant must show compelling, specific, and actual prejudice.
11. Evidence: Other Acts: Time. The question whether evidence of other
conduct is too remote in time is largely within the discretion of the trial
court. While remoteness in time may weaken the value of the evidence,
such remoteness does not, in and of itself, necessarily justify exclusion
of the evidence.
12. Evidence: Hearsay: Proof. Statements having a dual medical and
investigatory purpose are admissible only if the proponent of the state-
ments demonstrates that (1) the declarant’s purpose in making the
statements was to assist in the provision of medical diagnosis or treat-
ment and (2) the statements were of a nature reasonably pertinent to
medical diagnosis or treatment by a medical professional.
13. Evidence: Intent. There need not be direct evidence of a declarant’s
state of mind; instead, the appropriate state of mind of the declarant may
be reasonably inferred from the circumstances.
14. Intent. Whether the circumstances warrant inferring an appropriate state
of mind is necessarily a fact-specific determination.
15. Indictments and Informations. An information must inform the
accused with reasonable certainty of the crime charged so that the
accused may prepare a defense to the prosecution and, if convicted, be
able to plead the judgment of conviction on such charge as a bar to a
later prosecution for the same offense.
16. ____. A trial court, in its discretion, may permit a criminal information
to be amended at any time before verdict or findings if no additional or
different offense is charged and the substantial rights of the defendant
are not prejudiced.
17. Appeal and Error. An assignment of error is specific when it addresses
a specific issue that does not require additional information to under-
stand precisely what the assignment attacks.
18. Effectiveness of Counsel: Appeal and Error. To preserve an inef-
fective assistance of counsel claim on direct appeal, the claim must
be stated with particularity in the assignment of error and then sepa-
rately argued.

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STATE v. HEARNES
Cite as 34 Neb. App. 182
19. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough par-
ticularity for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
20. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance preju-
diced the defendant’s defense.
21. ____: ____. 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.
22. ____: ____. To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding
would have been different.
23. Effectiveness of Counsel: Words and Phrases. A reasonable probabil-
ity of prejudice from ineffective assistance of counsel is a probability
sufficient to undermine confidence in the outcome.
24. Effectiveness of Counsel. Speculation alone does not support a claim
for ineffective assistance of counsel.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
Kimberly Miller Pankonin, Judge. Affirmed.
Jerry M. Hug, of Hug & Jacobs, L.L.C., for appellant.
Michael 	T. 	Hilgers, Attorney 	General, 	and 	Melissa 	R.
Vincent for appellee.
Welch and Freeman, Judges.
Freeman, Judge.
INTRODUCTION
Following a jury trial, Robert L. Hearnes, Sr., appeals his
convictions for sexual assault of a child in the first and third
degree involving two minor children, J.W. and H.C., entered
by the district court for Douglas County. He argues that the
district court erred in consolidating his charges, admitting

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STATE v. HEARNES
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evidence of a prior sexual assault, admitting hearsay evi-
dence, and granting an amendment to the information. He also
argues that his trial counsel was ineffective. For the reasons
explained below, we affirm.
BACKGROUND
The district court heard several motions throughout the
pendency of the case as discussed below.
Motion to Consolidate.
Prior to trial, the State moved to consolidate the charges as
to both children into one matter. Hearnes argued that the con-
solidation was prejudicial because it made it appear that there
was a common scheme or plan.
In its motion, the State asserted both matters involved the
sexual assault of a female child under or around the age of 12,
both involved penile-vaginal penetration, and both involved
Hearnes’ approaching the child while the child was alone,
although others may have been elsewhere in the respective
residences. However, the State’s evidence also set forth that
the sexual assaults occurred in two different residences and
involved two different children, each with no knowledge of
the other. One of the children, J.W., knew her assailant only
as “Mr. Kool-Aid.”
The district court granted the motion to consolidate because
Hearnes failed to prove prejudice and because the charges
were of a similar character. The district court also determined
that evidence of each sexual offense would be admitted in
the trial of each of the other sexual offenses and that a jury
“could separate the charges and associated evidence, without
combining evidence of other charges to find guilt on a charge
that it would not have found if the Court had ordered sepa-
rate trials.”
Evidence of Prior Sexual Assault.
Next, the State moved to offer evidence during the trial of
a prior sexual assault committed by Hearnes. Hearnes objected

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STATE v. HEARNES
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and argued that the prejudice of the evidence outweighed any
probative value.
During a pretrial hearing on its motion, the State offered
the deposition of the prior victim, K.H., along with a certi-
fied copy of the prior conviction and police reports describ-
ing the present sexual assaults. In her deposition, K.H. stated
she still had a vivid memory of the sexual assault. According
to K.H., she was 7 years old at the time she knew Hearnes
and Hearnes was approximately 19 years old. K.H. stated the
sexual assault occurred while she was alone at her mother’s
apartment, wherein Hearnes “tickl[ed her] vagina” on the skin
by “pulling [her] panties somewhat to the side.” Hearnes was
originally charged with sexual assault of a child but pled no
contest and was convicted of contributing to the delinquency
of a minor in 1995 related to the incident K.H. described.
The district court granted the State’s motion. Though the
district court found, “by clear and convincing evidence, that
[Hearnes] committed a sexual assault upon K.H. pursuant to
Neb. Rev. Stat. §§ 27-413 and 28-319(1),” or sexual assault
in the first degree, reviewing the context of the district’s court
order in its entirety, it found clear and convincing evidence to
establish the elements of a prior sexual assault of a child in the
third degree. See Neb. Rev. Stat. § 28-320.01 (Reissue 2016).
The prior sexual assault was similar to those currently charged
because it involved vaginal contact of a child who was alone
in her residence. Though there was a gap of 30 years, the
district court relied on other Nebraska cases, such as State v.
Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013), that found
evidence of prior acts with a similar time gap to still be more
probative than prejudicial.
Statements for Medical Treatment.
At trial, the State moved to enter J.W.’s recorded forensic
interview from Project Harmony, a child advocacy center. A
nurse practitioner and a forensic interviewer who met with J.W.
described the forensic interview process at Project Harmony.

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STATE v. HEARNES
Cite as 34 Neb. App. 182
Emma Wright, the nurse practitioner, testified that Project
Harmony serves children and adolescents that may have
experienced abuse and neglect. At Project Harmony, a child
undergoes an interview and medical checkup. The medi-
cal checkup is usually performed by a nurse practitioner.
Wright discussed how both the interviewer and nurse meet
with the child at the beginning to explain the process. Ellie
Arnold, the forensic interviewer, explained that the interview
is recorded and conducted by a mental health practitioner.
Both Wright and Arnold testified that the interviewer explains
his or her role and that the interview would be first; then the
nurse explains his or her role and explains that a checkup
would follow the interview.
Arnold went on to explain that both the interviewer and the
nurse work together to make sure the child is “safe and healthy.”
After the interview, the interviewer meets with the medical
provider to “provide a history of the child, what [was] talked
about in [the interview], and that helps aid the nurse in poten-
tial medical treatment . . . and then aid in follow-up referrals
that that child may need.”
Later, the detective for J.W.’s case, Marisa Boyce, explained
that the interview is used by law enforcement to prevent the
child from having to tell the story multiple times.
Here, both Wright and Arnold claimed that J.W. appeared to
understand the process and each of the workers’ roles. Arnold
testified she believed that J.W. understood that Arnold was there
to make sure J.W. was “healthy and safe.” Arnold described
behaviors she had witnessed by children who did not under-
stand the process or seemed confused by it. According to
Arnold, J.W. did not exhibit any of those signs Arnold had
previously perceived. Arnold indicated that J.W. was respon-
sive in the interview and that she believed J.W. followed
the conversation.
J.W. reiterated in her interview that she was there for an
appointment. And her caretaker, Linda Gibbs, advised that
she understood J.W. would receive a mental and physical

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examination. At the interview, J.W. was told that she was there
to make sure she was “safe and healthy” and that she would
meet with the nurse after the interview. J.W. also nodded in the
affirmative to promise to tell the truth.
Hearnes objected to the district court’s admission of the
forensic interview, based on hearsay. Hearnes argued that
during the interview, J.W. appeared distracted, fidgeted, and
exclaimed random comments. Hearnes’ counsel pointed out
that J.W. guessed answers to several preliminary questions,
such as Arnold’s dog’s name and Arnold’s age, which J.W. was
instructed not to do.
The State argued that while she guessed at a few preliminary
questions and never sat still, J.W. continued to pay attention
and respond to most questions appropriately. As the inter-
view progressed, J.W. provided detailed answers to the ques-
tions posed.
In reviewing the evidence, the district court determined that
J.W.’s interview was admissible under the medical treatment
hearsay exception because the district court inferred from the
entirety of the interview that J.W. believed her statements were
being used for medical treatment.
Amended Information.
During trial, but before the verdicts, the State moved to
amend the information to conform to evidence adduced at
trial regarding a residential lease that expanded the possible
range of dates when Hearnes’ alleged sexual assault of J.W.
could have occurred. The State sought to expand the range
to begin January 1, 2017, rather than January 1, 2019, as ini-
tially alleged. The State acknowledged that the lease was not
previously disclosed to the defense. Hearnes argued that the
amendment would violate his right to a fair trial and would
be prejudicial because he did not have notice of the possible
date range.
However, apart from the undisclosed evidence, the State
argued that during depositions prior to trial, J.W. was unable

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to articulate the dates when the sexual assault occurred.
Additionally, the State mentioned that a police report con-
nected Hearnes with J.W. in 2017. The district court granted
the State leave to amend the information.
Verdicts.
During the trial and before jury deliberations, the district
court instructed the jury not to talk to anyone about the case
or listen to any conversations related to the trial and to tell
the judge if anyone persisted in trying to address trial issues
with a juror. The jury was also instructed to come “to a sepa-
rate decision regarding each crime.” The jury found Hearnes
guilty on two counts of sexual assault of a child in the first
degree and one count of sexual assault of a child in the third
degree. Hearnes appeals.
ASSIGNMENTS OF ERROR
Hearnes argues, restated and restructured, that the district
court erred in (1) consolidating his charges, (2) admitting
evidence of a prior sexual assault, (3) admitting evidence of
a forensic interview, and (4) granting an amendment to the
information during trial. Hearnes also asserts that (5) his
counsel was ineffective for failing to (a) investigate another
person that went by his same alias, (b) move for mistrial
due to potential jury tampering, (c) request a continuance to
investigate additional witnesses, and (d) impeach J.W. with
inconsistent statements.
STANDARD OF REVIEW
[1] A trial court’s ruling on a motion for consolidation of
prosecutions properly joinable will not be disturbed on appeal
absent an abuse of discretion. State v. Sawyer, 319 Neb. 435,
22 N.W.3d 650 (2025).
[2] Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an

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abuse of discretion. State v. Falcon, 319 Neb. 911, 25 N.W.3d
462 (2025).
A judicial abuse of discretion exists only when the reasons
or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. State v. Price, 320 Neb. 1, 26
N.W.3d 70 (2025).
[3] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de
novo the court’s ultimate determination to admit evidence over
a hearsay objection or exclude evidence on hearsay grounds.
State v. Hagens, 320 Neb. 65, 26 N.W.3d 174 (2025). In a de
novo review, an appellate court reaches a conclusion indepen-
dent of the trial court. Id.
[4] Whether a statement was both taken and given in con-
templation of medical diagnosis or treatment is a factual find-
ing made by the trial court in determining the admissibility of
the evidence. See State v. Swartz, 318 Neb. 553, 17 N.W.3d
174 (2025).
[5,6] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law. Id. In reviewing claims of ineffective assistance of coun-
sel on direct appeal, an appellate court decides only whether
the undisputed facts contained within the record are suffi-
cient to conclusively determine whether counsel did or did
not provide effective assistance and whether the defendant
was or was not prejudiced by counsel’s alleged deficient per-
formance. Id.
ANALYSIS
Motion to Consolidate.
Hearnes argues that the district court abused its discretion in
granting the State’s motion to consolidate, because the offenses
were not sufficiently related, and that the joinder was prejudi-
cial. We disagree.

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[7-9] There is no constitutional right to a separate trial.
State v. Sawyer, supra. Joinder of multiple offenses for a single
trial is favored and is the rule rather than the exception in
criminal cases. State v. Corral, 318 Neb. 940, 20 N.W.3d 372
(2025). Joinder and severance are controlled by Neb. Rev. Stat.
§ 29-2002 (Reissue 2016). See State v. Sawyer, supra. Pursuant
to § 29-2002:
(1) Two or more offenses may be charged in the same
indictment, information, or complaint in a separate count
for each offense if the offenses charged, whether felonies
or misdemeanors, or both, are of the same or similar
character or are based on the same act or transaction or
on two or more acts or transactions connected together
or constituting parts of a common scheme or plan.
(2) The court may order two or more indictments,
informations, or complaints, or any combination thereof,
to be tried together if the offenses could have been joined
in a single indictment, information, or complaint . . . .
(3) If it appears that a defendant or the state would
be prejudiced by a joinder of offenses in an indictment,
information, or complaint or by such joinder of offenses
in separate indictments, informations, or complaints for
trial together, the court may order an election for separate
trials of counts, indictments, informations, or complaints,
grant a severance of defendants, or provide whatever
other relief justice requires.
As this language suggests, whether offenses were properly
joined involves a two-stage analysis: (1) whether the offenses
were sufficiently related so as to be joinable and (2) whether
the joinder was prejudicial to the defendant. State v. Sawyer,
supra. Joinder of related offenses is intended to promote the
goals of trial convenience and judicial economy. Id. A clear
presumption exists in favor of a joinder of offenses and against
severance. State v. Corral, supra.
At the hearing, Hearnes argued only that the joinder was
prejudicial. In his brief, Hearnes attempts to add the argument

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that the offenses were not sufficiently related. Appellate courts
do not generally consider arguments and theories raised for the
first time on appeal. Tyrell v. Frakes, 309 Neb. 85, 958 N.W.2d
673 (2021). Therefore, we consider only whether the joinder
was prejudicial to Hearnes.
[10] A defendant opposing joinder of charges must meet a
high burden of proving prejudice. State v. Sawyer, 319 Neb.
435, 22 N.W.3d 650 (2025). To carry that burden, the defendant
must show compelling, specific, and actual prejudice. State v.
Corral, supra. To establish prejudice, the defendant must have
been deprived of an appreciable chance for an acquittal, a
chance that the defendant would have had in a severed trial.
State v. Sawyer, supra. Joined charges do not usually result
in prejudice if the evidence is sufficiently simple and distinct
for the jury to easily separate evidence of the charges during
deliberations. State v. Corral, supra. This is particularly true
when the trial court specifically instructed the jury to sepa-
rately consider the evidence for each offense. State v. Knutson,
288 Neb. 823, 852 N.W.2d 307 (2014). Even when the risk
of prejudice is high, a court’s limiting instructions often will
suffice to cure any risk of prejudice, as a jury is presumed to
follow its instructions. See State v. Corral, supra.
The charges in this case are sufficiently simple and distinct
for the jury to easily separate evidence of the charges. The
assaults occurred in two different locations, occurred at two
different times, and involved two different children, each of
whom had no knowledge of the other. In addition, the district
court specifically instructed the jury to come to a separate
decision regarding each charge. Therefore, the district court
did not abuse its discretion in granting the State’s motion
to consolidate.
Evidence of Prior Sexual Assault.
Hearnes argues that the district court abused its discretion
in admitting evidence of a prior sexual assault because there
was not clear and convincing evidence that the sexual assault

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occurred, and the risk of prejudice substantially outweighed the
probative value of the evidence. We find this claim fails.
Neb. Rev. Stat. § 27-414 (Reissue 2016) provides when a
prior sexual assault is admissible:
In a criminal case in which the accused is accused of an
offense of sexual assault, evidence of the accused’s com-
mission of another offense or offenses of sexual assault
is admissible if there is clear and convincing evidence
otherwise admissible under the Nebraska Evidence Rules
that the accused committed the other offense or offenses.
If admissible, such evidence may be considered for its
bearing on any matter to which it is relevant.
Clear and convincing evidence means the amount of evidence
which produces in the trier of fact a firm belief or conviction
about the existence of a fact to be proved; clear and convinc-
ing evidence is more than a preponderance of the evidence,
but less than proof beyond a reasonable doubt. Benjamin S. v.
Crystal S., 313 Neb. 799, 986 N.W.2d 492 (2023).
The district court found that there was clear and convincing
evidence that Hearnes committed a prior sexual assault on a
child in the third degree.
Section 28-320.01 states:
(1) A person commits sexual assault of a child in the
second or third degree if he or she subjects another person
fourteen years of age or younger to sexual contact and the
actor is at least nineteen years of age or older.
. . . .
(3) Sexual assault of a child is in the third degree if the
actor does not cause serious personal injury to the victim.
The State submitted a deposition of the victim where she
reiterated her vivid memory of the prior sexual assault. She
described that she was 7 years old and Hearnes was approxi-
mately 19 years old when Hearnes “tickl[ed her] vagina”
on the skin while she was alone with him. The tickling did
not cause the victim any serious personal injury. It was not
clearly untenable for the district court to have a firm belief

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in the facts that were adduced from the victim’s deposition.
Therefore, the district court did not abuse its discretion when
it found that there was clear and convincing evidence that
Hearnes committed a prior sexual assault of a child in the
third degree.
However, the inquiry does not end there. The district court
then must determine whether the evidence was prejudicial.
Before admitting evidence of the accused’s commission
of another offense or offenses of sexual assault under
this section, the court shall conduct a hearing outside
the presence of any jury. At the hearing, the rules of
evidence shall apply and the court shall apply a section
27-403 balancing and admit the evidence unless the risk
of prejudice substantially outweighs the probative value
of the evidence. In assessing the balancing, the court
may consider any relevant factor such as (a) the prob-
ability that the other offense occurred, (b) the proxim-
ity in time and intervening circumstances of the other
offenses, and (c) the similarity of the other acts to the
crime charged.
§ 27-414(3). We next review the relevant factors for the bal-
ancing test.
First, Hearnes was not convicted of sexual assault of a child
in the third degree for the prior sexual assault. Instead, he pled
no contest to an amended charge of contributing to the delin-
quency of a minor. The outcome of a prior charge is relevant
in determining prejudice. See State v. Lierman, 305 Neb. 289,
940 N.W.2d 529 (2020).
[11] Second, the prior sexual assault occurred approxi-
mately 30 years prior. The question whether evidence of other
conduct is too remote in time is largely within the discre-
tion of the trial court. State v. Valverde, 286 Neb. 280, 835
N.W.2d 732 (2013). While remoteness in time may weaken
the value of the evidence, such remoteness does not, in and
of itself, necessarily justify exclusion of the evidence. Id.
Sexual assaults from 27 years prior were still admitted when

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the prior sexual assaults were similar to the current charges.
See State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991)
(finding also that evidence closer in time should not have
been admitted because sexual assault was not similar to cur-
rent charges).
Third, “overwhelming similarity” is not required for the
balancing test. See State v. Valverde, 286 Neb. at 298, 835
N.W.2d at 746. In State v. Valverde, supra, the Nebraska
Supreme Court found that the prior sexual assault was similar
to the current charges (comparing digital penetration and vagi-
nal intercourse with vaginal intercourse, sexual requests, oral
sex, and touching of breast, bottom, and penis), even though
the prior sexual assault involved different sexual contact. It
found that because the sexual assault involved a child who was
a similar age and in a similar relationship with the defendant,
the sexual assaults were similar for the purpose of the balanc-
ing test. See id.
Here, the prior sexual assault was similar to those with
which Hearnes was currently charged because all the assaults
involved a child below or near the age of 12 to whom
Hearnes had access, occurred when the child was alone
with Hearnes, and involved vaginal contact. The main dif-
ference Hearnes points out is that the prior sexual assault did
not involve penetration but only vaginal touching. But like in
State v. Valverde, supra, it was possible to find that the various
sexual contacts were similar for the balancing test.
When reviewing the relevant factors for the balancing test,
it was not clearly untenable for the district court to find that
the risk of prejudice did not substantially outweigh the proba-
tive value of the prior sexual assault. See, State v. Lierman,
supra (finding that risk of prejudice did not substantially
outweigh probative value of prior sexual assault when sexual
assaults were close in time and similar but defendant was
acquitted of prior sexual assault); State v. Valverde, supra
(finding that risk of prejudice did not substantially outweigh
probative value of prior sexual assault when sexual assaults

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were similar and occurrence of prior sexual assault was not
disputed, but prior sexual assault occurred 17 years prior);
State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012) (finding
that risk of prejudice did not substantially outweigh probative
value of prior sexual assault when sexual assaults were simi-
lar but not close together in time).
Contrary to Hearnes’ assertion, the district court maintained
its “gatekeeping function” by first determining there was clear
and convincing evidence of the prior sexual assault and then
finding that the risk of prejudice did not substantially outweigh
the probative value of the evidence by reviewing the relevant
factors. See brief for appellant at 12. Therefore, the district
court did not abuse its discretion in admitting the evidence of
the prior sexual assault.
Statements for Medical Treatment.
Hearnes argues that the district court erred in admitting the
forensic interview because it did not fall under the medical
treatment hearsay exception.
“Hearsay is a statement, other than one made by the declar-
ant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” Neb. Rev. Stat.
§ 27-801(3) (Cum. Supp. 2024). Hearsay is not admissible
except as provided by rule. See Neb. Rev. Stat. § 27-802
(Reissue 2016). “Statements made for purposes of medical
diagnosis or treatment and describing medical history, or past
or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar
as reasonably pertinent to diagnosis or treatment” are an excep-
tion to the hearsay rule and may be admissible. See Neb. Rev.
Stat. § 27-803(4) (Cum. Supp. 2024). The exception is based
on the notion that a person seeking medical attention will give
a truthful account of the history and status of his or her condi-
tion in order to ensure proper treatment. See State v. Swartz,
318 Neb. 553, 17 N.W.3d 174 (2025).

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[12] Statements having a dual medical and investigatory
purpose are admissible only if the proponent of the statements
demonstrates that (1) the declarant’s purpose in making the
statements was to assist in the provision of medical diagnosis
or treatment and (2) the statements were of a nature reason-
ably pertinent to medical diagnosis or treatment by a medical
professional. See id. Statements made by a child victim of
sexual abuse to a forensic interviewer in the chain of medi-
cal care may be admissible even though the interview has the
partial purpose of assisting law enforcement’s investigation
of the crimes. See State v. Corral, 318 Neb. 940, 20 N.W.3d
372 (2025). The fundamental inquiry to determine whether
statements made by a declarant who knew that information
could be shared with law enforcement had a medical purpose
is if the challenged statement has some value in diagnosis or
treatment, because the patient would still have the requisite
motive for providing the type of sincere and reliable informa-
tion that is important to that diagnosis and treatment. State v.
Swartz, supra.
[13,14] Hearnes assigns as error only that the forensic inter-
view was not made with the intent to obtain medical treat-
ment. The fundamental inquiry when considering a declarant’s
intent is whether the statement, despite its dual purpose, was
made in legitimate and reasonable contemplation of medical
diagnosis or treatment. See State v. Jedlicka, 297 Neb. 276,
900 N.W.2d 454 (2017). There need not be direct evidence
of a declarant’s state of mind; instead, the appropriate state
of mind of the declarant may be reasonably inferred from the
circumstances. Id. Whether the circumstances warrant infer-
ring an appropriate state of mind is necessarily a fact-specific
determination. Id.
In State v. Jedlicka, supra, the Supreme Court reviewed a
child’s Project Harmony forensic interview. The court found
several facts to support its determination that the forensic
interview was for medical treatment. See id. First, it found that
the interviewer told the child she was there “to help and make

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sure that nothing was wrong with her” and that the interviewer
asked the child to tell the truth. State v. Jedlicka, 297 Neb. at
292, 900 N.W.2d at 467. Second, the interviewer “testified that
one purpose of her interviews is to help figure out what needs
the child may have regarding medical or therapeutic care to
make a determination concerning any followup treatment or
care that may be needed for the child.” Id. Third, the child’s
caretaker understood the treatment that would occur at Project
Harmony. See State v. Jedlicka, supra. The court specified that
the circumstances in every case will be different and that no
one fact is dispositive in an analysis. See id.
Like the events during the interview in State v. Jedlicka,
supra, here, J.W. was told she was at Project Harmony to make
sure she was “safe and healthy” and J.W. promised to tell the
truth. Additionally, Arnold testified that she, as the interviewer,
meets with the medical provider to “provide a history of the
child, what [was] talked about in [the interview], and that
helps aid the nurse in potential medical treatment . . . and then
aid in follow-up referrals that that child may need.” And J.W.’s
caretaker understood that J.W. would receive a mental and
physical examination at Project Harmony.
J.W. also reiterated that she was there for an appointment.
And though not specifically addressed by the district court, it
was revealed in the evidence the district court reviewed that
J.W. had been to Project Harmony before and would have
been familiar with the process that a medical examination fol-
lowed the interview.
Hearnes argues that J.W. was distracted and unresponsive
during the interview. Even though J.W. was unable to sit still
during the interview, she was able to follow the conversa-
tion and respond accordingly. During preliminary questions,
she guessed a few answers, but as the interview progressed,
she gave detailed answers and responded appropriately, con-
trary to Hearnes’ argument.
Wright and Arnold testified that J.W. appeared to under-
stand the process and the workers’ roles, and Arnold believed

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that J.W. followed the conversation in the interview. Arnold
had previously witnessed the behavior of children who did not
understand, and J.W. did not exhibit those signs. Therefore,
considering all the facts, the district court did not err in
admitting the forensic interview.
Amended Information.
Hearnes argues that the district court erred in granting the
State’s motion to amend the information because the increased
date range caused him prejudice.
[15,16] An information must inform the accused with rea-
sonable certainty of the crime charged so that the accused may
prepare a defense to the prosecution and, if convicted, be able
to plead the judgment of conviction on such charge as a bar to
a later prosecution for the same offense. State v. Theisen, 306
Neb. 591, 946 N.W.2d 677 (2020). A trial court, in its discre-
tion, may permit a criminal information to be amended at any
time before verdict or findings if no additional or different
offense is charged and the substantial rights of the defendant
are not prejudiced. State v. Banks, 278 Neb. 342, 771 N.W.2d
75 (2009). A criminal information may be amended specifi-
cally to conform to the evidence adduced at trial. See State v.
Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984).
Here, the amendment was made before the verdict and there
was no additional or different offense charged. Therefore, our
review rests on whether the substantial rights of Hearnes were
prejudiced by the amendment. A consideration in determining
the propriety of the amendment and whether the defendant
was prejudiced thereby is whether the amendment surprised
the defense. State v. Antillon, 229 Neb. 348, 426 N.W.2d 533
(1988) (superseded by statute on other grounds as stated in
State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).
The case had proceeded for 2 years with the date range
for J.W.’s sexual assault charge beginning in 2019. The resi-
dential lease that expanded the possible date range was not
disclosed to Hearnes prior to trial. The State’s amendment to

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the information added 2 years to the date range to conform to
the evidence adduced at trial.
However, despite his argument otherwise, Hearnes had prior
knowledge that the possible dates for the sexual assault charge
could be as early as January 1, 2017. In J.W.’s deposition prior
to trial, she stated she was unsure of when the sexual assault
occurred but indicated it could have occurred between 2015
and 2019. Additionally, Hearnes received police reports prior
to trial connecting him to J.W. in 2017. Hearnes was not preju-
diced by the amendment because he was not surprised that the
possible date range for the charge could have begun in 2017,
based on evidence he received apart from the lease. Therefore,
the district court did not abuse its discretion in granting the
State’s motion to amend the information.
Insufficient Claims for Ineffective
Assistance of Counsel.
Hearnes makes four claims that his trial counsel was inef-
fective. In two of those claims, Hearnes argues that his counsel
was ineffective because his counsel “failed to request a con-
tinuance of trial to investigate and potentially call witnesses”
and “failed to impeach the State’s witness J.W. with inconsis-
tent statements.”
For the first assignment, Hearnes did not specify whom
the “witnesses” were. For the second assignment, Hearnes
indicated the witness was J.W. but did not specify what “state-
ments” were inconsistent. Hearnes argues that the record is
insufficient to address each of these assignments, but we need
not determine this, insofar as the assignments were insuffi-
ciently pled, as discussed below.
[17] We begin by setting forth the legal framework for eval-
uating assignments of error that trial counsel was ineffective.
In State v. Rupp, 320 Neb. 502, 523, 28 N.W.3d 74, 89 (2025),
the Supreme Court clarified that assignments of error on direct
appeal regarding ineffective assistance of trial counsel, “stand-
ing alone,” must specifically allege what conduct constituted

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deficient performance. A generalized and vague assignment
of error that does not advise an appellate court of the issue
submitted for decision will not be considered. State v. Rupp,
supra. An assignment is specific when it addresses a specific
issue that does not require additional information to understand
precisely what the assignment attacks. Id. Any claim of inef-
fective assistance of counsel alleging deficient conduct must
be more specific than generalities of inadequate preparation or
failures to introduce beneficial evidence. See id.
[18,19] To preserve an ineffective assistance of counsel claim
on direct appeal, the claim must be stated with particularity in
the assignment of error and then separately argued. See State v.
Rupp, 33 Neb. App. 562, 19 N.W.3d 771 (2025). Assignments
of error on direct appeal regarding ineffective assistance of
trial counsel must specifically allege deficient performance,
and an appellate court will not scour the remainder of the brief
in search of such specificity. State v. Hagens, 320 Neb. 65, 26
N.W.3d 174 (2025). An ineffective assistance of counsel claim
is raised on direct appeal when the claim alleges deficient per-
formance with enough particularity for (1) an appellate court
to make a determination of whether the claim can be decided
upon the trial record and (2) a district court later reviewing
a petition for postconviction relief to recognize whether the
claim was brought before the appellate court. State v. Kruger,
320 Neb. 361, 27 N.W.3d 398 (2025).
In State v. Hagens, 320 Neb. at 85, 26 N.W.3d at 192,
the Supreme Court found that an assertion concerning “‘wit-
nesses’” without any further description or detail in the
assignment of error was not sufficiently stated. Similarly, an
assertion claiming inconsistent statements without pointing
to specific statements in the record is not sufficiently pled.
See State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023).
Hearnes also argues that the record did not include the state-
ments that were inconsistent for him to point to, such as
J.W.’s deposition or statements to law enforcement. However,
this is refuted by the record. J.W.’s deposition was entered

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into evidence during pretrial proceedings and included in
the bill of exceptions, and according to Boyce, J.W. was not
interviewed by the police because they relied on the Project
Harmony forensic interview. Therefore, these assignments
of error are not sufficiently pled because Hearnes failed to
specify for the first assignment what “witnesses” would be
investigated and for the second assignment what specific
“statements” were inconsistent.
Ineffective Assistance of Counsel.
Hearnes further argues that his counsel was ineffective
for failing to investigate a “known individual with the same
nickname as [Hearnes] as the perpetrator,” brief for appellant
at 21, and “move for a mistrial based on evidence of poten-
tial jury tampering,” id. at 22. Pursuant to State v. Rupp, 320
Neb. 502, 28 N.W.3d 74 (2025), Hearnes’ first assignment of
error regarding a “known individual with the same nickname”
is sufficiently pled because it specifically states who counsel
failed to investigate. While we question whether “potential
jury tampering” is sufficiently pled, see id., Hearnes’ claim is
refuted by the record.
[20-23] We continue our analysis by explaining the legal
standard 	for 	reviewing 	ineffective 	assistance 	of 	counsel
claims deemed sufficient. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that his or her
counsel’s performance was deficient and that this deficient
performance prejudiced the defendant’s defense. See State
v. Hagens, supra. 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 show prejudice in a claim of ineffec-
tive assistance of counsel, the defendant must demonstrate
a reasonable probability that but for counsel’s deficient per-
formance, the result of the proceeding would have been differ-
ent. Id. A reasonable probability of prejudice from ineffective
assistance of counsel is a probability sufficient to undermine

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confidence in the outcome. Id. Courts may examine per-
formance and prejudice in any order and need not examine
both prongs if the defendant fails to demonstrate either. State
v. Parks, 319 Neb. 773, 25 N.W.3d 146 (2025).
First, Hearnes argues that Gibbs, J.W.’s current caretaker,
indicated in her deposition that she knew “another individual
who went [by] the nickname ‘Kool-Aid,’” Hearnes’ alias. Brief
for appellant at 22. Hearnes argues that the record is insuffi-
cient to address his claim that trial counsel should have inves-
tigated that other individual. We disagree.
Even though Gibbs’ deposition was not included in the
record, the remaining record is sufficient to show Hearnes was
not prejudiced by counsel’s alleged deficient performance.
Boyce testified she discovered a police report during her
investigation that connected J.W.’s mother and Hearnes, who
had the “alias of Kool Aid.” Regardless of whether there was
another individual named “Kool-Aid,” J.W. identified Hearnes
in a six-photo lineup conducted before trial as the person she
knew as “Kool-Aid” because of his moustache and beard and
because he “lookeded [phonetic] just like him.” J.W. also iden-
tified “Kool-Aid” in the courtroom during trial and testified
that “Kool-Aid” put his penis in her vagina.
Second, Hearnes argues that his counsel was ineffective for
failing to move for mistrial because of potential jury tampering
by one of the children. Hearnes argues that the record is insuf-
ficient to address this claim because no information regarding
jury tampering was provided. We disagree.
[24] Hearnes’ claim of jury tampering is based on his
observation that an attorney for the State and J.W. walked
near the jury room that was occupied by jurors, but Hearnes
did not directly witness jury tampering. Speculation alone
does not support a claim for ineffective assistance of counsel.
See State v. Galindo, 315 Neb. 1, 994 N.W.2d 562 (2023).
See, also, State v. Avina-Murillo, 301 Neb. 185, 204, 917
N.W.2d 865, 878 (2018) (“[w]e will not presume prejudice
based on mere speculation”). The jury was instructed not to

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talk to anyone about the case and to tell the judge if anyone
persisted in trying to address trial issues with a juror. A jury is
presumed to follow its instructions. State v. Corral, 318 Neb.
940, 20 N.W.3d 372 (2025). Defense counsel is not ineffec-
tive for failing to raise an argument that has no merit. State v.
Devers, 313 Neb. 866, 986 N.W.2d 747 (2023). As there was
no evidence of jury tampering and the jury was instructed not
to talk to anyone about the case, Hearnes’ claim fails because
he is unable to show prejudice.
CONCLUSION
We conclude that the district court did not abuse its dis-
cretion in granting the motions, the forensic interview was
admittable hearsay under the medical treatment exception,
and Hearnes was not prejudiced by ineffective assistance
of counsel.
Affirmed.
Pirtle, Judge, participating on briefs.