State v. German

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GERMAN
Cite as 316 Neb. 841
State of Nebraska, appellee, v.
Kevin S. German, appellant.
___ N.W.3d ___
Filed June 14, 2024. 	No. S-23-159.
1. Judgments: Appeal and Error. On questions of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
3. 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.
4. Trial: Rules of Evidence. A trial court exercises its discretion in deter-
mining whether evidence is relevant and whether its probative value is
outweighed by its prejudicial effect.
5. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
6. Evidence: Proof. The bar for establishing evidentiary relevance is not
a high one and requires only the probative value of the evidence to be
something more than nothing.
7. Evidence: Words and Phrases. Unfair prejudice means an undue tend-
ency to suggest a decision based on an improper basis.
8. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
9. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appellant
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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
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STATE v. GERMAN
Cite as 316 Neb. 841
has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
10. Jury Instructions: Appeal and Error. It is not error for a trial court to
refuse to give a party’s requested instruction where the substance of the
requested instruction was covered in the instructions given.
11. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
12. Jury Instructions: Appeal and Error. All the jury instructions must be
read together, and if, taken as a whole, they correctly state the law, are
not misleading, and adequately cover the issues supported by the plead-
ings and the evidence, there is no prejudicial error necessitating reversal.
13. Criminal Law: Jury Instructions. When there is an applicable instruc-
tion in the Nebraska Jury Instructions, the court should usually give that
instruction to the jury in a criminal case.
14. Jury Instructions. Parties have no right to particular language in a jury
instruction; they are entitled to nothing more or less than a fair, impar-
tial, and complete statement of the applicable law.
15. Constitutional Law: Due Process. The determination of whether pro-
cedures afforded an individual comport with constitutional requirements
for procedural due process presents a question of law.
16. Effectiveness of Counsel: Postconviction: Appeal and Error. When a
defendant’s trial counsel is different from his or her counsel on direct
appeal, the defendant must raise on direct appeal any issue of trial
counsel’s ineffective performance which is known to the defendant or
is apparent from the record; otherwise, the issue will be procedurally
barred in a subsequent postconviction proceeding.
17. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of counsel
can be determined on direct appeal presents a question of law, which
turns upon the sufficiency of the record to address the claim without an
evidentiary hearing or whether the claim rests solely on the interpreta-
tion of a statute or constitutional requirement.
18. 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

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GERMAN
Cite as 316 Neb. 841
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
19. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of
ineffective assistance of counsel is raised in a direct appeal, the appel-
lant is not required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims constitutes defi-
cient performance by trial counsel.
20. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an
appellate court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims. The record
is sufficient 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.
21. Miranda Rights: Waiver: Self-Incrimination. Whether or not a sus-
pect initially waived his or her right to remain silent, the suspect retains
the right to cut off questioning.
22. Miranda Rights: Police Officers and Sheriffs: Self-Incrimination. A
suspect must articulate the desire to cut off questioning with sufficient
clarity that a reasonable police officer under the circumstances would
understand the statement as an invocation of the right to remain silent.
23. ____: ____: ____. Ambiguous or equivocal statements that might be
construed as invoking the right to silence do not require the police to
discontinue their questioning.
24. Miranda Rights: Self-Incrimination: Appeal and Error. In determin-
ing whether there has been a clear invocation of the right to remain
silent, an appellate court reviews the totality of the circumstances sur-
rounding the statement in order to assess the words in context.
25. Effectiveness of Counsel: Jury Instructions. Counsel’s failure to
request a novel jury instruction does not constitute deficient performance.
26. Effectiveness of Counsel: Appeal and Error. 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.
Appeal from the District Court for Chase County, Patrick
M. Heng, Judge. Affirmed.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GERMAN
Cite as 316 Neb. 841
Michael 	T. 	Hilgers, Attorney 	General, 	and 	Melissa 	R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
On direct appeal, Kevin S. German challenges an eviden-
tiary ruling, jury instructions given and refused, a sentencing
determination, and the assistance of counsel. Because a jury
convicted German of second degree murder, he can show no
prejudice based on the court’s giving of an aiding instruction
that would include unintentional manslaughter or based on not
submitting to the jury whether the murder victim was safely
released for purposes of the kidnapping sentence. Finding
no merit to German’s other arguments, we affirm the district
court’s judgment.
II. BACKGROUND
A jury convicted German of second degree murder, kid-
napping, and first degree false imprisonment based on two
separate but related incidents occurring over a 2-day period
in November 2019. In the first incident, German and his
girlfriend, Keonna Carter, abducted and assaulted E.A. In the
second incident, German and Carter abducted, assaulted, and
killed Annika Swanson. Before summarizing the evidence per-
taining to the crimes, we provide background concerning the
perpetrators, victims, and a witness.
1. Individuals Involved
Though in different grades, German, Swanson, and E.A.
attended high school together in Imperial, Nebraska, during
the 2013-14 school year. Toward the end of the school year,
German and E.A. began an intimate relationship. Although
German moved out of town after graduating, he communicated
with E.A. “off and on” and they would meet when German
returned to the area.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GERMAN
Cite as 316 Neb. 841
Fast forward to the summer of 2019. Swanson began dating
and living with Russ Mann. Mann described his trailer as “a
place where people go to use drugs and procure drugs.” He and
Swanson used methamphetamine daily.
German, who lived in Louisiana, met and began a rela-
tionship with Carter, who lived in Fort Collins, Colorado.
They remained in near-daily communication through elec-
tronic means. Later, Carter falsely told German that he had
impregnated her.
Also that summer, E.A. sought to reconnect with German.
They traveled to California and Louisiana and resumed a
sexual relationship. During their trip, German received a tele-
phone call from Carter. German told E.A. that Carter was
pregnant with his children and that he was going to be
involved with his children even though he and Carter were not
together. German also told E.A. that Carter was dangerous and
had killed people.
In September 2019, German and E.A. returned to Imperial.
German and E.A. both sold drugs, and E.A. introduced German
to Mann. Over the next couple of months, German and Mann
“would work trades together” where Mann would give German
methamphetamine in return for cocaine.
While German and E.A. were living together in Imperial,
E.A. suspected that German remained in a relationship with
Carter. E.A. saw German send a message to Carter stating
that E.A. was just a friend whom he was helping and that she
was “delusional and crazy.” E.A. subsequently ended the rela-
tionship and told German that he could be with Carter.
In approximately October 2019, German called Carter and
asked her to pick him up in Imperial. She did so. German told
her that he had grown tired of helping out his friend, E.A.,
whom he had a relationship with “back in the day.” He denied
having had a recent relationship with E.A. Before leaving
Imperial, German and Carter went to Mann’s trailer. There,
Carter met Swanson.

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Nebraska Supreme Court Advance Sheets
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STATE v. GERMAN
Cite as 316 Neb. 841
German and Carter began living together in Fort Collins.
They made return trips to Imperial—specifically, to Mann’s
trailer—to bring drugs. Carter recalled that during one trip
in October 2019, German drove her to his family’s property,
which was located several miles south of Imperial.
On numerous occasions, Carter did not accompany German
to Imperial. On one such occasion—October 16, 2019—
German 	and 	Carter 	exchanged 	messages 	about 	Swanson.
German wrote, “Yup may test the trunk today” and “Yea
[expletive] women out here need to know they can be lost in
5 seconds.” German indicated that Swanson “may be in some
trouble with our good friend” because Swanson was “a busy
body” and was “talkin to some ppl that owe us money.”
2. Events Leading to
Abductions and Death
On November 11 or 12, 2019, German and Carter acquired
drugs in Colorado and traveled to Mann’s trailer. Swanson was
at the trailer, and German expressed to Carter frustration with
Swanson’s inability “to keep her mouth shut.”
On the evening of November 12, 2019, E.A. sent messages
to Swanson, seeking to procure drugs. Swanson told German,
in Carter’s presence, that “his girlfriend” was “messaging” her.
Carter saw that the messages were from E.A. Using Swanson’s
phone and texting as her, German set up a meeting with E.A.
German and Carter arrived at the meeting location, and German
told E.A. to get in the car.
According to E.A., German took her cell phone when she
got in the car. He pulled out a gun and began driving. German
said E.A. owed him money and needed to learn to keep her
mouth shut. Carter yelled at E.A. and hit her. As German
drove, Carter recognized that they entered the German family
property.
German parked the car and ordered E.A. to get out. Carter
then hit E.A. in the face and stomach. German grabbed E.A.
and threw her against the car. German and Carter each kicked

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Nebraska Supreme Court Advance Sheets
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STATE v. GERMAN
Cite as 316 Neb. 841
E.A. German gave E.A. the choice to be either killed or “pros-
tituted out.” After E.A. agreed to be a prostitute, they then
returned to Mann’s trailer.
On the morning of November 13, 2019, Mann and German
left the trailer. Carter was given a gun and told to keep
Swanson and E.A. at the trailer. That afternoon, a deputy
sheriff knocked on the door of the trailer; no one answered.
German arranged for Carter to go elsewhere for a while. After
several hours, Carter sent messages trying to find someone to
retrieve her. German sent a message offering to “come to you
and leave them there,” and Carter responded, “NOW THAT’S
[expletive] STUPID AS HELL!” A few minutes later, Carter
sent a message stating, “Stay with your sluts I’m over this,”
and German replied, “Nah . . . I’ll splatter them and come to
you.” Instead, German had Mann pick Carter up and return
with her to the trailer.
At some point, Swanson and Carter spoke alone. Swanson
told Carter that German and E.A. had a relationship, which
Swanson assumed to be sexual, in September and October
2019. Carter became angry and told German that they needed
to leave. Mann agreed to keep watch over E.A. and “make
sure she’s doing what she has to do to make [German’s]
money back.”
German and Carter left to return to Fort Collins. Carter,
upset and yelling, told German what Swanson said about his
relationship with E.A. German said that Swanson was lying.
Upset, he made a U-turn and sped back to Mann’s trailer.
German entered the trailer. According to E.A., German
appeared to be “filled with pure rage” and was “the angri-
est [she had] ever seen him.” German grabbed Swanson, hit
her, and threw her to the ground. He dragged Swanson out of
the house and threw her off the porch. German then picked
Swanson up, put her in the back of the car, and drove away.
German pulled the car to the side of a road after Swanson
said something that upset him. He pulled Swanson from the
car, hit her face, and held her down on a gravel road. Carter

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GERMAN
Cite as 316 Neb. 841
kicked Swanson and stepped on the side of her neck for 10 to
15 seconds. Carter described that Swanson’s “pulse just got
weak.” German then put Swanson in the trunk of the car.
German drove to three locations. The first had a locked
gate, so German said they would go somewhere else. Carter
described the second location as “an outlook area” or “little
cliff” on a bumpy dirt road. The last location was on the
German family property. The road was bumpy, and Carter
heard Swanson moan and say “‘ow.’” German drove the car
toward a vertical pipe that protruded from the ground and
popped the trunk.
Swanson got out of the trunk and asked “why couldn’t
she have the same deal [E.A.] did.” Carter heard German tell
Swanson to drink something. Carter testified that she had a
container of windshield wiper fluid in the car. German then
told Swanson to get inside the pipe. Eventually, Swanson
entered the pipe. Carter observed German lighting on fire
items, including paper and a glove, to throw into the pipe. She
heard Swanson repeatedly saying “‘no.’” German and Carter
returned to Mann’s trailer, and Carter heard German tell Mann
that Swanson was somewhere no one would find her.
3. Investigation
On November 21, 2019, Swanson’s father reported to the
Chase County sheriff’s office that he had not heard from
Swanson for approximately 1 week. Law enforcement inter-
viewed Mann and E.A. After E.A. “spilled the beans,” officers
sought search warrants for some of the German family property
and sought arrest warrants for German and Carter.
Officers from the Fort Collins Police Department arrested
German and Carter. During a custodial interview, Carter tried
to explain how to find Swanson by describing locations and
surroundings. Law enforcement eventually found the location.
The vertical pipe was part of a culvert system. It was 24
inches wide and connected below ground into a horizon-
tal structure that was 18 inches wide. The pipe protruded

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STATE v. GERMAN
Cite as 316 Neb. 841
approximately 3 feet 6 inches out of the ground and was
approximately 8 feet total in depth. Swanson’s deceased body,
which was measured at 5 feet 10 inches, was found inside
the horizontal structure connected to the bottom of the verti-
cal pipe.
Officers located several pieces of evidence near the culvert
system. Those items included a clear plastic bottle with “some
sort of coagulated substance in the bottom,” grass or soil that
appeared to be wet or oily, and a blue plastic lid. Items found
inside the culvert included an oily substance, a vegetable
oil bottle lacking a blue lid, a sweatshirt, and pages from a
Colorado library book.
Law enforcement searched Carter’s vehicle and apartment.
In the trunk of the vehicle, a detective found a clump of hair,
a hubcap with an apparent bloodstain, a bottle of “jack oil,”
and a library book, which was missing the first 32 pages. In
Carter’s apartment, officers located E.A.’s cell phone.
Brandy Porter, a forensic scientist, received DNA refer-
ence samples for Swanson, Carter, and German. She swabbed
around the rim of the clear plastic bottle, and the DNA profile
on the swab was a partial mixture of three people. Carter and
Swanson could be included as a contributor to the sample,
but German was excluded as a contributor. Porter devel-
oped a DNA profile on the container of vegetable oil, which
showed that Swanson was included in the DNA profile but
that German and Carter were excluded. Porter cautioned that
a person does not always leave DNA when he or she touches
something, so it would be improper to conclude that a person
did not handle an item just because that person’s DNA was
not found on it.
Testing showed the substance inside the clear plastic bottle
to contain methanol. Toxicology testing revealed that Swanson
had methanol, formic acid, amphetamine, and methamphet-
amine in her system. Formic acid is formed if methanol is
ingested. Windshield wiper fluid contains methanol.

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Nebraska Supreme Court Advance Sheets
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STATE v. GERMAN
Cite as 316 Neb. 841
4. Medical Expert Testimony
A pathologist opined that the cause of Swanson’s death was
blunt force head injuries and methanol and methamphetamine
toxicity. Swanson’s subdural hemorrhages were consistent
with blunt force trauma that could be caused by downward
pressure of a foot on the side of the head or by being kicked
in the side of the head. The pathologist believed that the
methanol was at a fatal level and that the level of metham-
phetamine was a contributing factor to Swanson’s death.
An expert witness called by the State testified that the meth-
anol concentration in Swanson’s system was approximately
1,000 times higher than normal. Although he did not believe
Swanson’s death was due solely to methanol, he believed that
it played a “causative role” and that methamphetamine inges-
tion was a contributing factor to Swanson’s death.
The defense’s expert witness opined that it could not be
concluded with reasonable medical certainty that methanol
ingestion caused or contributed to Swanson’s death. The expert
explained that Swanson had an elevated methanol level, but
that her level of formic acid was normal. And methanol itself
is not toxic, only the metabolite—formic acid—is toxic. He
opined that Swanson had not yet become poisoned by the
methanol at the time that she died.
5. Verdict and Sentencing
The jury found German guilty of murder in the second
degree of Swanson, guilty of kidnapping Swanson, and guilty
of first degree false imprisonment of E.A. The court accepted
the jury’s verdicts and entered judgment.
The court imposed sentences of 60 to 80 years’ imprison-
ment for murder in the second degree, life imprisonment
for kidnapping, and 30 to 36 months’ imprisonment for first
degree false imprisonment. It ordered that the kidnapping sen-
tence be served concurrently to the murder sentence and that
the false imprisonment sentence be served consecutively to the
other two sentences.

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STATE v. GERMAN
Cite as 316 Neb. 841
Through 	counsel 	different 	from 	trial 	counsel, 	German
appealed.
III. ASSIGNMENTS OF ERROR
German assigns 11 errors. He alleges that the district court
erred in (1) admitting photographic evidence of Swanson’s
child, (2) giving instructions on aiding and abetting a crime
and refusing to give his tendered instructions, and (3) impos-
ing a sentence of life imprisonment for kidnapping in viola-
tion of Alleyne v. United States 1 and the federal and state
Constitutions. German also alleges eight instances of ineffec-
tive assistance of trial counsel.
IV. STANDARD OF REVIEW
[1] On questions of law, an appellate court is obligated to
reach a conclusion independent of the determination reached
by the court below. 2 Additional standards of review will be set
forth, as appropriate, in the analysis.
V. ANALYSIS
1. Receipt of Evidence
German argues that admission of photographic evidence of
Swanson’s child denied him a fair trial and violated due proc-
ess. He contends that the exhibit contained irrelevant evidence
and was unfairly prejudicial.
(a) Standard of Review
[2-5] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. 3 Where the Nebraska Evidence Rules commit the
1 Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013).
2 State v. Lear, ante p. 14, 2 N.W.3d 632 (2024).
3 State v. Anthony, ante p. 308, 4 N.W.3d 393 (2024).

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STATE v. GERMAN
Cite as 316 Neb. 841
evidentiary question at issue to the discretion of the trial
court, an appellate court reviews the admissibility of evidence
for an abuse of discretion. 4 A trial court exercises its discre-
tion in determining whether evidence is relevant and whether
its probative value is outweighed by its prejudicial effect. 5 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 a just result in
matters submitted for disposition. 6
(b) Additional Facts
The fourth witness called by the State, the father of one of
Swanson’s children, testified about his efforts to keep Swanson
involved in their young child’s life. Those efforts included
sending messages to Swanson with pictures and videos of
their child. A trial exhibit contained photographs of the mes-
sages sent to Swanson between November 12 and November
15, 2019.
Before the State offered the exhibit into evidence, a sidebar
conference occurred. Defense counsel objected that pictures
of the child lacked relevance, were unfairly prejudicial, and
were cumulative. The prosecutor asserted that the purpose
of the exhibit was to show that Swanson opened a mes-
sage on November 12, 2019, but did not open messages sent
November 13 and later. Defense counsel offered to stipulate
to Swanson’s receiving but not opening messages, but the
prosecutor remarked on the State’s burden of proof. The court
overruled the objection.
When the State subsequently offered the exhibit into evi-
dence, 	defense 	counsel 	renewed 	the 	objection. The 	court
4 Id.
5 State v. Lorello, 314 Neb. 385, 991 N.W.2d 11 (2023).
6 State v. Anthony, supra note 3.

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STATE v. GERMAN
Cite as 316 Neb. 841
overruled the objection and received the exhibit. Counsel did
not request a limiting instruction.
(c) Discussion
(i) Relevance
[6] Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determina-
tion of the action more probable or less probable than it would
be without the evidence.” 7 The bar for establishing evidentiary
relevance is not a high one and requires only the probative
value of the evidence to be something more than nothing. 8
Here, as an element of the offenses, the State had the burden
to prove when German abducted and killed Swanson. When
Swanson received and opened a message, received but did not
open a message, or did not receive a sent message was proba-
tive of this element. The district court did not abuse its discre-
tion in overruling German’s relevancy objection.
(ii) Unfair Prejudice
[7] Under Neb. Rev. Stat. § 27-403 (Reissue 2016), rel-
evant evidence may be excluded when “its probative value is
substantially outweighed by the danger of unfair prejudice.”
Unfair prejudice means an undue tendency to suggest a deci-
sion based on an improper basis. 9
German argues that “[d]isplaying for the jury the face of
a motherless child four times was a preventable and emo-
tional distraction which unnecessarily risked having jurors
consider impermissible passions and emotions as part of
their deliberation.” 10 But these photographs of Swanson’s
child—whose life Swanson “walked out of”—do not somehow
7 Neb. Rev. Stat. § 27-401 (Reissue 2016).
8 State v. Lorello, supra note 5.
9 State v. Abligo, 312 Neb. 74, 978 N.W.2d 42 (2022).
10 Brief for appellant at 25.

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STATE v. GERMAN
Cite as 316 Neb. 841
suggest that German murdered Swanson. We conclude the dis-
trict court did not abuse its discretion by admitting the exhibit
into evidence.
2. Jury Instructions
German contends that the court erred by refusing to give the
instructions that he tendered on aiding a crime and by giving
incorrect jury instructions.
(a) Standard of Review
[8] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. 11
[9,10] To establish reversible error from a court’s refusal
to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. 12 It is not error for
a trial court to refuse to give a party’s requested instruction
where the substance of the requested instruction was covered
in the instructions given. 13
[11] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. 14
[12] All the jury instructions must be read together, and if,
taken as a whole, they correctly state the law, are not mislead-
ing, and adequately cover the issues supported by the pleadings
and the evidence, there is no prejudicial error necessitating
reversal. 15
11 State v. Npimnee, ante p. 1, 2 N.W.3d 620 (2024).
12 State v. Johnson, 314 Neb. 20, 988 N.W.2d 159 (2023).
13 State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019).
14 State v. Tvrdy, 315 Neb. 756, 1 N.W.3d 479 (2024).
15 State v. Npimnee, supra note 11.

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STATE v. GERMAN
Cite as 316 Neb. 841
(b) Additional Facts
(i) Instructions Given
a. Homicide
In connection with the charge of first degree murder, the
court instructed the jury that it could find German guilty of
murder in the first degree, murder in the second degree, or
manslaughter. The jury instruction stated in relevant part:
MURDER IN THE SECOND DEGREE
The elements which the State must prove beyond a
reasonable doubt in order to convict [German] of Murder
in the Second Degree are:
. . . .
1. That [German], either independently or while aiding
and abetting another, did kill . . . Swanson; and
2. That [German], either independently or while aid-
ing and abetting another, did so intentionally, but without
premeditation; and
3. That [German], either independently or while aiding
and abetting another, did so without the provocation of a
sudden quarrel; and
4. That [German] did so on or about or around the
dates of November 12, 2019 to November 21, 2019, in
Chase County, Nebraska.
MANSLAUGHTER
The elements of the crime of Manslaughter are:
1. That [German], either independently or while aiding
and abetting another, killed . . . Swanson; and
2. That [German], either independently or while aiding
and abetting another, did so
a. Intentionally without malice upon a sudden quar-
rel; or
b. Unintentionally while in the commission of an
unlawful act, to wit, an unlawful restraint upon the liberty
of . . . Swanson.

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STATE v. GERMAN
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3. That [German] did so on or about or around the
dates of November 12, 2019 to November 21, 2019, in
Chase County, Nebraska.
A death occurs while in the commission of an unlawful
act if death came in a natural and continuous sequence
from [German’s] unlawful act and if without that act the
death would not have occurred.
. . . .
EFFECT OF FINDINGS
You must separately consider in the following order
the crimes of (1) Murder in the First Degree, (2) Murder
in the Second Degree, and (3) Manslaughter.
For the crime of Murder in the First Degree, you must
decide whether the State proved each element beyond a
reasonable doubt. If the State did so prove each element,
then you must find [German] guilty of Murder in the First
Degree and stop.
If, however, you find that the State did not so prove,
then you must proceed to consider the next crime in the
list, Murder in the Second Degree. You must proceed in
this fashion to consider each of the crimes in sequence
until you find [German] guilty of one of the crimes or
find him not guilty of all of them.
The corresponding aiding instruction stated:
[German] can be guilty of the crime of Murder in
the 	First 	Degree, 	Murder 	in 	the 	Second 	Degree 	or
Manslaughter, even though he personally did not commit
every act involved in the crime so long as he aided some-
one else to commit it. [German] aided someone else if:
1. [German] intentionally encouraged or intentionally
helped another person to commit the crime; and
2. [German] intended that the crime be committed; or
[German] knew that the other person intended to commit
the crime; and
3. The crime in fact was committed by that other
person.

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Mere encouragement or assistance is sufficient. On
the other hand, evidence of mere presence, acquiescence,
or silence is not enough to sustain the State’s burden of
proving [German] guilty.
b. Kidnapping
The State also charged German with kidnapping Swanson.
The court instructed the jury that the elements of kidnap-
ping were:
1. That [German], either independently or while aiding
and abetting another, did abduct . . . Swanson, or having
abducted her, continued to restrain her; and
2. That [German], either independently or while aiding
and abetting another, did so with the intent to terrorize her
or with the intent to commit a felony; and
3. That he did so on or about or around the dates of
November 12, 2019 to November 21, 2019 in Chase
County, Nebraska.
That for purposes of the charge of Kidnapping the
crimes of Murder in the First Degree, Murder in the
Second Degree, Manslaughter and First Degree False
Imprisonment, are felonies under Nebraska law.
With regard to aiding and abetting, the court’s instruction
was the same as that given for aiding a homicide with the
exception of the crimes. In place of homicides, it substituted
the crimes of “Kidnapping, First Degree False Imprisonment,
or Second Degree False Imprisonment.”
(ii) Instructions Requested
German proposed two jury instructions on aiding a crime,
which the court refused. They were substantially similar to the
aiding instructions given by the court.
In both of German’s requested instructions, he proposed
adding the following paragraph derived from State v. Ramsay 16:
16 State v. Ramsay, 257 Neb. 430, 598 N.W.2d 51 (1999).

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When the elements of a crime charged require proof of
the existence of a particular intent, an alleged aider or
abettor can be held criminally liable as a principal only if
it is shown that the aider and abettor knew that the perpe-
trator of the act possessed the required intent, or that the
aider and abettor himself possessed such intent.
However, for aiding a homicide, German’s proposed instruc-
tion inserted “Intentional” before “Manslaughter.”
(c) Discussion
(i) Ramsay Language
There is no dispute that the Ramsay language proposed by
German was a correct statement of the law. But the question
becomes whether German was prejudiced by the use of other
language where the court based its aiding instruction on NJI2d
Crim. 3.8. Two principles dictate that he was not.
[13] First, when there is an applicable instruction in the
Nebraska Jury Instructions, the court should usually give that
instruction to the jury in a criminal case. 17 That is precisely
what the court did.
[14] Second, parties have no right to particular language
in a jury instruction; they are entitled to nothing more or less
than a fair, impartial, and complete statement of the appli-
cable law. 18 We discern no significant difference between
the instructions given and German’s requested instructions.
Because there is no prejudice, there is no reversible error in
the court’s refusal to give German’s proposed instructions con-
taining the Ramsay language.
(ii) Intentional Manslaughter
German next contends that the instructions for homicide
and kidnapping were problematic because they incorporated
an unintentional form of manslaughter as a possible predicate
17 State v. Esch, 315 Neb. 482, 997 N.W.2d 569 (2023).
18 See Gustafson v. Burlington Northern RR. Co., 252 Neb. 226, 561 N.W.2d
212 (1997).

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felony. German asserts that “aiding and abetting must be
affixed to intentional crimes.” 19 Thus, as noted, his proposed
instruction limited manslaughter to “Intentional Manslaughter.”
Under the circumstances here, we need not determine whether
this aspect of the instructions was correct.
Even if the instructions were erroneous, German cannot
establish prejudice. His arguments are based on instructing
the jury as to a form of manslaughter that is an unintentional
crime. But here, the jury convicted German of second degree
murder. Accordingly, under the effect of findings portion of
the homicide instruction, the jury “stop[ped]” before ever con-
sidering the crime of manslaughter. Nor was there any basis
to find that German was convicted of kidnapping based on an
unintentional form of manslaughter. German had the burden to
show that the instructions were prejudicial, and he has failed
to meet that burden. We find no reversible error.
3. Kidnapping Sentence
German challenges his sentence to life imprisonment for
kidnapping. He contends that under the U.S. Supreme Court’s
Alleyne decision, the jury was required to make findings as to
certain matters that differentiated a mandatory life sentence
from a sentence for a Class II felony. 20
(a) Standard of Review
[15] The determination of whether procedures afforded an
individual comport with constitutional requirements for proce-
dural due process presents a question of law. 21
(b) Additional Facts
Prior to sentencing, German submitted a brief to the dis-
trict court in which he asserted that facts controlling manda-
tory minimum sentences must be decided by a jury under
19 Brief for appellant at 30.
20 See Alleyne v. United States, supra note 1.
21 State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020).

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Alleyne. During the sentencing hearing, the court disagreed
that the jury had to make the determination about whether the
victim was liberated alive, reasoning that the jury implicitly
did so by finding German guilty of second degree murder.
To the extent the court needed to make a finding, it found
beyond a reasonable doubt that Swanson was kidnapped, was
not voluntarily released or liberated alive by the abductor,
and was not left in a safe place without having some serious
bodily injury.
(c) Discussion
We start our discussion with Apprendi v. New Jersey. 22 In
that case, the U.S. Supreme Court held that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 23
A couple of years later, in State v. Becerra, 24 we considered
Apprendi in connection with Nebraska’s kidnapping statute.
The kidnapping statute, Neb. Rev. Stat. § 28-313 (Reissue
2016), provides for a lesser penalty depending on treatment of
the victim. The statute provides:
(1) A person commits kidnapping if he abducts another
or, having abducted another, continues to restrain him
with intent to do the following:
(a) Hold him for ransom or reward; or
(b) Use him as a shield or hostage; or
(c) Terrorize him or a third person; or
(d) Commit a felony; or
(e) Interfere with the performance of any government
or political function.
(2) Except as provided in subsection (3) of this section,
kidnapping is a Class IA felony.
22 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000).
23 Id., 530 U.S. at 490.
24 See State v. Becerra, 263 Neb. 753, 642 N.W.2d 143 (2002).

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(3) If the person kidnapped was voluntarily released or
liberated alive by the abductor and in a safe place without
having suffered serious bodily injury, prior to trial, kid-
napping is a Class II felony. 25
In Becerra, we rejected an argument that whether a defend-
ant’s kidnapping sentence should be a Class IA felony or a
Class II felony was a question for the jury to decide under
Apprendi. 26 We stated that the factors to determine which
penalty to impose were not elements of the offense of kidnap-
ping, but, rather, were mitigating factors that may reduce a
sentence under § 28-313. We explained:
Under § 28-313, any factual finding about whether
the person kidnapped was voluntarily released affects
whether 	the 	defendant 	will 	receive 	a 	lesser 	penalty
instead of an increased penalty. Apprendi made clear that
it was concerned only with cases involving an increase
in penalty beyond the statutory maximum and does not
apply to the mitigating factors in § 28-313. 27
German argues that the premise from Becerra does not sur-
vive the U.S. Supreme Court’s subsequent Alleyne decision.
There, the Court stated: “[T]he essential Sixth Amendment
inquiry is whether a fact is an element of the crime. When a
finding of fact alters the legally prescribed punishment so as
to aggravate it, the fact necessarily forms a constituent part of
a new offense and must be submitted to the jury.” 28
Under the circumstances here, we need not determine
whether Alleyne would require a jury to make factual find-
ings under § 28-313(3). The jury found German guilty beyond
a reasonable doubt of murdering Swanson. By making such
a determination, the jury necessarily rejected the idea that
Swanson was “voluntarily released or liberated alive by the
25 § 28-313.
26 See State v. Becerra, supra note 24.
27 Id. at 759, 642 N.W.2d at 148.
28 Alleyne v. United States, supra note 1, 570 U.S. at 114-15.

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abductor and in a safe place without having suffered seri-
ous bodily injury, prior to trial.” 29 We need not speak to the
impact of Alleyne on a situation in which the evidence could
support a safe release.
4. Ineffective Assistance of Counsel
[16] German assigns several instances in which he claims
that his trial counsel performed deficiently. When a defendant’s
trial counsel is different from his or her counsel on direct
appeal, the defendant must raise on direct appeal any issue of
trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue
will be procedurally barred in a subsequent postconviction
proceeding. 30 After setting forth the standard of review, we
address each instance of alleged ineffective assistance.
(a) Standard of Review
[17] Whether a claim of ineffective assistance of counsel
can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim
rests solely on the interpretation of a statute or constitutional
requirement. 31
[18,19] An ineffective assistance of counsel claim is raised
on direct appeal when the claim alleges deficient performance
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 peti-
tion for postconviction relief to recognize whether the claim
was brought before the appellate court. 32 When a claim of
ineffective assistance of counsel is raised in a direct appeal,
the appellant is not required to allege prejudice; however,
29 § 28-313(3).
30 State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).
31 State v. Npimnee, supra note 11.
32 State v. Miller, 315 Neb. 951, 2 N.W.3d 345 (2024).

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an appellant must make specific allegations of the conduct
that he or she claims constitutes deficient performance by
trial counsel. 33
[20] Once raised, an appellate court will determine whether
the record on appeal is sufficient to review the merits of the
ineffective performance claims. The record is sufficient if it
establishes either that trial counsel’s performance was not
deficient, that the appellant will not be able to establish preju-
dice as a matter of law, or that trial counsel’s actions could
not be justified as a part of any plausible trial strategy. 34
(b) Specific Assignments
(i) German’s Statement to Police
With 	respect 	to 	German’s 	custodial 	statement 	to 	law
enforcement officers, German contends that his counsel pro-
vided ineffective assistance in numerous ways. First, he argues
that counsel should have moved to suppress his statement,
objected to the statement at trial and moved to strike it, or
moved for a mistrial. Second, he asserts that counsel should
have sought redaction of irrelevant and unduly prejudicial
comments within that custodial statement. Third, he asserts
that counsel should have mitigated the damage of his custo-
dial statement.
a. Additional Facts
Tessa Jakobsson, a detective with the Fort Collins Police
Department, 	conducted 	a 	custodial 	interview 	of 	German.
Jakobsson read German his Miranda rights, and he stated that
he was willing to answer some questions. The jury heard the
entirety of the interview.
German described his family as “big farmers” in Imperial,
where “everybody knows everybody.” He stated that he was
“the only black kid in a town of 2,000 people” and that he
learned what racism was “real quick.” German stated that
33 Id.
34 Id.

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he disliked Imperial because “the stigma there is just so
dumb.” He explained that his family was a “good family”
and that he found it annoying everyone knows who you are
and “expects you to like hand out money or something ’cause
you’re from the rich end of town.” He claimed that Child
Protective Services and police officers did not do their jobs
because “people know people” and that the police and sheriff
were corrupt.
German reported dropping Swanson off at Mann’s house
and then leaving with Carter. Jakobsson stated, “The prob-
lem is that you guys went somewhere and then you came
back, and [Swanson] didn’t come back with you.” Jakobsson
expressed her concern that Swanson was “dead out in a corn-
field somewhere” and her desire to find Swanson’s body.
German responded, “I did nothing.” He added, “I’ve said my
piece.” He then complained about the circumstances in which
he was taken into custody.
Jakobsson told German that his story was “complete gar-
bage.” German replied, “It was complete garbage, ma’am?
[indiscernible] why don’t you just get me a lawyer then?”
Jakobsson stated: “I don’t need to get you a lawyer unless
you want a lawyer. Would you like a lawyer? I can certainly
get you one; I’m just hoping that you will give me the truth,
show me where [Swanson] is . . . .” German and Jakobsson
continued talking, and German repeatedly denied knowledge
of Swanson’s whereabouts. German stated, “And you know
what, I would gladly talk to Nebraska cops that are from Chase
County, and I would gladly talk to the family.” Jakobsson
retorted, “Perfect, I will go get you a Chase County deputy.”
German replied: “Sweet. Thank you.”
Chase County Deputy Sheriff Duncan Einspahr then entered
the room. Einspahr told German what he learned from inter-
views with others and stated, “The jig is up.” German replied,
“With what?” Einspahr said: “With [Swanson]. I know what
happened. . . . Really, man? You’re gonna sit there, to my
face, and tell me that you don’t know what happened and

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where she is? You’re not gonna help me find her?” German
discussed putting Swanson in Carter’s car, driving her out
of town, and dropping her off. He claimed to have removed
Swanson from a bad situation. German hypothesized that
Swanson “either ran off with a Mexican dude . . . or she got
killed.” Einspahr then explained why he thought German
killed Swanson.
b. Discussion
i. Failing to Move to Suppress, Object at Trial,
Move to Strike, or Move for Mistrial
[21-24] Whether or not a suspect initially waived his or
her right to remain silent, the suspect retains the right to cut
off questioning. 35 But a suspect must articulate the desire to
cut off questioning with sufficient clarity that a reasonable
police officer under the circumstances would understand the
statement as an invocation of the right to remain silent. 36
Ambiguous or equivocal statements that might be construed
as invoking the right to silence do not require the police
to discontinue their questioning. 37 In determining whether
there has been a clear invocation of the right to remain
silent, an appellate court reviews the totality of the circum-
stances surrounding the statement in order to assess the words
in context. 38
German argues that he clearly and unequivocally invoked
his right to remain silent. He relies on his statements of
“I’ve said my piece” and “I’m done.” But “[w]e have never
held that any utterance of ‘I’m done,’ no matter what the
surrounding circumstances or other statements, will be con-
strued as cutting off all further questioning.” 39 From the
35 State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010).
36 Id.
37 Id.
38 See id.
39 Id. at 218, 777 N.W.2d at 809.

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context surrounding German’s statements, it appears that he
was merely conveying that he had told the officer all that
he knew. Because German did not unequivocally invoke the
right to remain silent, counsel had no basis to move to sup-
press the statement, object to it, move to strike it, or move
for a mistrial. We conclude that counsel’s performance was
not deficient.
ii. Failing to Seek Redaction of Irrelevant
and Unduly Prejudicial Statements
German contends that counsel should have objected or
sought to redact numerous statements by German. Those state-
ments included his negative comments about Imperial and its
residents, his statements that he suffered from racism, and
his comments about law enforcement’s being corrupt. While
German’s comments may have been only minimally relevant,
he does not explain how they were unfairly prejudicial. But
on direct appeal, he is not required to make a showing of
prejudice regarding ineffective assistance of counsel. Because
the record does not disclose trial counsel’s reasons for not
objecting or seeking redaction, we conclude that the record is
insufficient to address this assignment.
iii. Failing to Mitigate Damage of Statement
German asserts as deficient performance the failure of coun-
sel to address the prejudice of German’s custodial statement.
Specifically, German contends that counsel failed to argue that
German was compelled to protect Carter due to his belief that
Carter was pregnant with his children.
But this claim is refuted by the record. During cross-
examination of Jakobsson, defense counsel asked her about
situations “in which one witness that you’re interviewing or
somebody in a custodial interrogation may not be fully truth-
ful to law enforcement to start with because they’re trying to
protect somebody else.” Jakobsson testified she considered
that German might try to protect the mother of his children.

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Then, in closing arguments, counsel reminded the jury of
Jakobsson’s testimony that people commonly lie to police to
protect others and argued that German thought “he was pro-
tecting the woman who was carrying the three triplet children
gestating in . . . Carter, protecting her because of her miscon-
duct and what would happen if she was convicted [and] put
into the criminal justice system.”
German also asserts that counsel failed to argue that the
State maintained the burden of proof beyond a reasonable
doubt and that the jury could not merely weigh German’s
version of events against the State’s case. The record refutes
the former assertion, and the latter assertion is not entirely
accurate.
The record shows that defense counsel began his closing
argument by talking about safeguards and the proper way to
arrive at a verdict. Counsel stressed that the government had
to provide proof and that the proof had to be beyond a reason-
able doubt. Counsel presented the jury with a chart that “kind
of shows you, in words, what we’re talking about when we
talk about beyond a reasonable doubt.” Counsel reminded the
jury that “you could have a firm belief in the existence of the
fact to be proven, and yet that’s not guilt beyond a reasonable
doubt.” While the jury was entitled to weigh German’s ver-
sion against the State’s case, the State was required to prove
every element of an offense beyond a reasonable doubt 40 and
not merely by the greater weight of the evidence. Because the
record shows that counsel emphasized the State’s burden of
proof, we conclude counsel did not perform deficiently.
(ii) Jury Instructions
German claims that defense counsel provided ineffective
assistance with respect to jury instructions in two ways. One
assertion is that counsel should have requested a curative
instruction on implicit and unconscious bias. The other is that
40 See State v. Mann, supra note 13.

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counsel should have either objected to the jury instruction on
kidnapping that German claims to be incorrect or offered a
correct instruction.
a. Additional Facts
German and Carter are African American. During pretrial
status hearings, defense counsel and the court discussed racial
bias. In a hearing on a motion for change of venue, defense
counsel noted that “we have a very small population in . . .
Chase County that is 93 percent white, has less than one per-
cent African American or minority percentage.”
During jury selection, there was an emphasis on the abil-
ity to be fair and impartial and a discussion of race. Defense
counsel stated, “I think there are people who consciously,
and other people subconsciously, who still have some men-
tal impairment in the sense of — about dealing with African
American citizens in our country.” Counsel inquired whether
anyone thought that “African Americans are more likely to
commit crimes than white people.” He stated, “Now, if there’s
any of you that feel that way, I just need to know . . . .” No
one responded.
b. Discussion
i. Failing to Request Instruction
on Implicit Bias
Citing case law from Iowa 41 and proposed jury instructions
formulated by a Washington committee, 42 German argues that
counsel should have offered a jury instruction on implicit bias.
But two principles dictate otherwise.
First, the standard instructions given were sufficient to
cover the concept. A preliminary instruction provided in part:
41 State v. Plain, 898 N.W.2d 801 (Iowa 2017).
42 Western District of Washington, Criminal Jury Instructions, https://
www.wawd.uscourts.gov/sites/wawd/files/CriminalJuryInstructions-
ImplicitBias.pdf (last visited June 7, 2024).

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“Do not allow sympathy or prejudice to influence you. Do not
indulge in any speculation, guess, or conjecture. And do not
make any inferences that are not supported by the evidence.”
Similarly, the final instructions included the following: “The
law demands of you a just verdict. You must not indulge in
any speculation, guess, or conjecture. You must not allow
sympathy or prejudice to influence your verdict.” As set forth
previously, if the jury instructions, read together and taken
as a whole, adequately cover the issues, there is no prejudi-
cial error. 43
[25] Second, we have stated that counsel’s failure to raise
novel legal theories or arguments or to make novel constitu-
tional challenges in order to bring a change in existing law
does not constitute deficient performance. 44 The same is true
with respect to failing to offer a pioneering jury instruction. We
conclude that counsel’s failure to request a novel jury instruc-
tion does not constitute deficient performance. Accordingly,
counsel did not perform deficiently in this regard.
ii. Kidnapping
German’s assertion that counsel provided ineffective assist-
ance by failing to object to the kidnapping jury instruction
or to tender an appropriate instruction fails. As discussed
above, the jury found German guilty of second degree murder.
Thus, the arguments related to unintentional manslaughter
and depriving the jury of the opportunity to consider the safe
release provision of § 28-313(3) lack merit. Even if counsel
performed deficiently, German cannot show that he suffered
prejudice.
(iii) Evidence of Possibility of
Polygraph Testing
German faults his counsel for offering evidence that Mann
and Carter were subject to the possibility of polygraph testing.
43 See State v. Npimnee, supra note 11.
44 State v. Kipple, 310 Neb. 654, 968 N.W.2d 613 (2022).

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a. Additional Facts
Upon defense counsel’s offers, the court received unre-
dacted proffer agreements of Mann and Carter. Each agreement
included a provision stating, “Further cooperation to include,
but not limited to, further interviews, permissions to search,
and/or polygraph examination(s) by a government polygra-
phist, may be required . . . .”
b. Discussion
German contends that allowing the unredacted documents
“opened the possibility that law enforcement and the govern-
ment have given polygraph examinations to the witnesses” 45
and that the jury may surmise that Mann and Carter would not
have been called to testify if they had failed the examination.
But counsel offered the agreements to impeach the credibility
of Mann and Carter.
Although counsel could have redacted the provision con-
cerning the possibility of polygraph testing, German cannot
show that he suffered prejudice from the failure to do so. The
agreements mentioned polygraph examinations as an option—
not a requirement—and there was no evidence that Mann or
Carter actually submitted to such an examination. Further,
the State adduced other evidence that corroborated the testi-
monies of Mann and Carter. Thus, even if counsel performed
deficiently, German cannot establish prejudice.
(iv) Cross-Examination of DNA Analyst
German alleges that counsel performed ineffectively by
cross-examining the DNA analyst, Porter, with respect to the
testing procedure on the clear plastic bottle.
a. Additional Facts
The 	direct 	examination 	of 	Porter 	established 	that 	she
swabbed around only the rim of the bottle for a DNA profile.
The DNA profile on the swab included Carter and Swanson
45 Brief for appellant at 62.

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as contributors to the sample but excluded German as a
contributor.
On cross-examination, defense counsel asked questions
highlighting that Porter swabbed the entire bottle of veg-
etable oil but swabbed only the rim of the clear plastic bottle.
Counsel asked if “there is a possibility that on the . . . con-
tainer there was a DNA profile that could have been devel-
oped had you swabbed it all around the bottom, below the
one-half inch line where you did the swabbing to determine
whether or not it was there?” And Porter answered, “Yes, I
could have swabbed it to try and develop a DNA profile, that
is correct.”
b. Discussion
German asserts that his counsel’s line of questioning caused
him prejudice because “[t]here is a strong possibility that the
jury speculated that [German’s] DNA could still have been
on that bottle in the area which was not swabbed by the
analyst.” 46 But it is apparent that counsel sought to attack the
thoroughness of the State’s investigation, which is a reason-
able defense tactic. Further, German cannot show prejudice
because Porter had already testified on direct examination
that it would be improper to conclude that a person did not
handle an item just because that person’s DNA was not found
on it. This claim of ineffective assistance fails.
(v) Advice Regarding Waiver of
Right to Testify
Finally, German asserts that his counsel provided unreason-
able advice that prevented German from meaningfully exercis-
ing his right to testify.
a. Additional Facts
The 	court 	reporter 	documented 	a 	discussion 	between
defense counsel and German regarding German’s right to
46 Id. at 63.

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testify. According to the questions asked and answers given,
counsel and German discussed on numerous occasions whether
it would be beneficial for German to testify. German stated
that he understood he had a constitutional right to testify in
his own behalf and that it was his choice whether he would
testify. German stated that he concluded he did not want to
testify, that he was not pressured by counsel or any employee
of counsel’s law firm, and that he made the decision on his
own. When asked if German felt it was the appropriate choice
for him under the circumstances, he answered, “Yes, sir.”
b. Discussion
German’s assignment of error stated merely that coun-
sel was ineffective “in respect to [a]dvice [p]rovided on the
[d]ecision to [w]aive the [r]ight to [t]estify [b]y [p]rovid-
ing [u]nreasonable [a]dvi[c]e [n]ecessary for a [m]eaningful
[d]ecision.” This assignment lacks the specificity we demand
on direct appeal.
[26] Assignments of error on direct appeal regarding inef-
fective 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. 47 This
is not a new principle. 48 We have adhered to it on numerous
occasions. 49
47 State v. Turner, 315 Neb. 661, 998 N.W.2d 783 (2024).
48 See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
49 See, State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023); State v.
Applehans, 314 Neb. 653, 992 N.W.2d 464 (2023); State v. Fernandez,
313 Neb. 745, 986 N.W.2d 53 (2023); State v. Miranda, 313 Neb. 358,
984 N.W.2d 261 (2023); State v. Anders, 311 Neb. 958, 977 N.W.2d 234
(2022); State v. Drake, 311 Neb. 219, 971 N.W.2d 759 (2022); State v.
Blake, 310 Neb. 769, 969 N.W.2d 399 (2022); State v. Wood, 310 Neb.
391, 966 N.W.2d 825 (2021); State v. Figures, 308 Neb. 801, 957 N.W.2d
161 (2021); State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020); State v.
Archie, 305 Neb. 835, 943 N.W.2d 252 (2020); State v. Guzman, 305 Neb.
376, 940 N.W.2d 552 (2020).

- 873 -
Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GERMAN
Cite as 316 Neb. 841
As alluded to earlier, the necessary specificity of allega-
tions of ineffective assistance of trial counsel on direct appeal
for purposes of avoiding waiver requires, at a minimum,
allegations of deficient performance described with enough
particularity for an appellate court to make a determination
of whether the claim can be decided upon the trial record
and also for a district court later reviewing a potential peti-
tion for postconviction relief to be able to recognize whether
the claim was brought before the appellate court. 50 Because
German’s assignment is not sufficiently specific, we decline
to address it.
We observe that German expanded on counsel’s specific
deficiencies in the argument portion of his brief. There, he
set forth:
[German] specifically alleges trial counsel failed to
properly explain the relative advantages or disadvan-
tages of testifying; did not sufficiently advise [German]
of what questions [he] would be subject to on cross-
examination if [German] did testify; did not explain
the questions that would be asked of [German] and the
relative risks of those inquiries if [German] exercised the
right to testify. 51
But even this expanded assertion does not set forth the advice
actually given and claimed to be insufficient, or the specific
advice not given. Thus, it lacks the necessary specificity.
VI. CONCLUSION
Finding no abuse of discretion in the receipt of photographic
evidence and no reversible error related to the jury instruc-
tions or kidnapping sentence, we affirm the judgment of the
district court. With regard to German’s ineffective assistance
of counsel claims, they either lack merit, cannot be resolved
on the existing record, or were not sufficiently alleged.
Affirmed.
50 See, State v. Miller, supra note 32; State v. Blake, supra note 49.
51 Brief for appellant at 64.