State of Nebraska v. Ivell M. Hagens

Date: 11-07-2025

Case Number:

Judge: Russell Derr

Court: District Court, Douglas County, Nebraska

Plaintiff's Attorney: Douglas County, Nebraska, County Attorney's Office

Defendant's Attorney:

Description: Omaha, Nebraska, first degree sexual assault of a child, a Class IB felony 1; incest
with a person under age 18, a Class IIA felony 2; and tampering with physical evidence.

1. Convictions: Appeal and Error. In an appeal of a criminal convic -
tion, an appellate court reviews the evidence in a light most favorable
to the prosecution.

2. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for sufficiency of the evidence, whether the evidence is
direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such mat -
ters are for the finder of fact. The relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.

3. Rules of Evidence: Hearsay: Appeal and Error. Hearsay is not
admissible except as provided by the Nebraska Evidence Rules. 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. Appeal and Error. In a de novo review, an appellate court reaches a
conclusion independent of the trial court.

5. Hearsay: Words and Phrases. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.

6. Evidence: Words and Phrases. Cumulative evidence means evi -
dence tending to prove the same point to which other evidence has
been offered.

7. Trial: Convictions: Evidence: Appeal and Error. Where the evidence
is cumulative and there is other competent evidence to support the con -
viction, the improper admission or exclusion of evidence is harmless
beyond a reasonable doubt.

8. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not needed to adjudicate the controversy before it.

9. ____. Plain error may be found on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record, prejudi -
cially affects a litigant’s substantial right and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of the judicial
process. Generally, an appellate court will find plain error only when a
miscarriage of justice would otherwise occur.

10. Motions for Mistrial: Prosecuting Attorneys: Appeal and Error. A
party who fails to make a timely motion for mistrial based on prosecuto -
rial misconduct forfeits the right to assert on appeal that the court erred
in not declaring a mistrial due to such prosecutorial misconduct.

11. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant
has not preserved a claim of prosecutorial misconduct for direct appeal,
an appellate court will review the record only for plain error.

12. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.

13. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea -
sonable or if its action is clearly against justice or conscience, reason,
and evidence.

14. Sentences. The appropriateness of a sentence is necessarily a subjec-
tive judgment that includes the sentencing judge’s observations of the
defendant’s demeanor and attitude and all the facts and circumstances
surrounding the defendant’s life.

15. Sentences: Appeal and Error. It is not the proper function of an appel-
late court to conduct a de novo review of the record to determine what
sentence it would impose.

16. Effectiveness of Counsel: Postconviction: Records: 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: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.

18. ____: ____. 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.

19. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must
show that his or her counsel’s performance was deficient and that this
deficient performance actually prejudiced the defendant’s defense.

20. ____: ____. To show that counsel’s performance was deficient, a defend-
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.

21. ____: ____. 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.

22. 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.

23. Effectiveness of Counsel: Presumptions: Appeal and Error. There
is a strong presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions.

24. 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.

25. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal
does not necessarily mean that it can be resolved. The determin -
ing factor is whether the record is sufficient to adequately review
the issue.

26. ____: ____: ____. The record on appeal is sufficient to effectively
review the question of ineffective assistance if it establishes either that
trial counsel’s performance was not deficient, that the appellant will not
be able to establish prejudice, or that trial counsel’s actions could not be
justified as a part of any plausible trial strategy.

27. Effectiveness of Counsel: Appeal and Error. Assignments of error
on direct appeal regarding ineffective assistance of trial coun -
sel must specifically allege deficient performance, and an appel -
late court will not scour the remainder of the brief in search of
such specificity.

Outcome: The Defendant was found guilty.

Affirmed

Plaintiff's Experts:

Defendant's Experts:

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