At the outset, we reject defendant's and the trial court's reliance on this court's decision in People v. Walker (2012) 210 Cal.App.4th 1372, 152 Cal.Rptr.3d 424 ( Walker ). In Walker , a sheriff's detective had circulated an e-mail about a <mask> that had occurred a week earlier at a downtown San Jose light rail station. The e-mail contained a description of the two suspects and photographs of the suspects taken from a surveillance video. The description of one suspect was: " '[B]lack male adult, approximately in his 20's, approximately six[-]one, 195, short afro, clean shaven, light complected, appeared unkempt[,] wearing a backpack.' " The description of the second suspect was: " '[B]lack male adult, 30's, approximately five[-]five, 195, short hair[,] unkempt with a body odor[,] wearing a black sweatshirt jacket with a hood and black pants.' " ( Walker , at p. 1378, 152 Cal.Rptr.3d 424.)


After again noting the issues of advocacy by the court, as previously discussed in Sherman, this court explained that the procedure had been insufficient where A.G. had “requested a show cause hearing as to whether a <mask> protection order should remain in effect.” 19 It was not until after the close of evidence that the trial court “brought up the harassment pro- tection order on its own initiative.” 20 We found that by the time A.G. was aware that the court was considering a harassment protection order in place of a sexual assault protection order, A.G. no longer had the opportunity to present a case that such an order was not warranted. Further, we discussed how the procedure followed by the lower court was not meaningfully different from that of Linda N., a procedure which we found to be inconsistent with due process. We noted, again: Whether a new theory for a protection order is asserted for the first time on appeal or after the close of evidence at the show cause hearing, the respondent does not have an opportunity to defend against the entry of the protec- tion order on the new theory and is denied procedural due process. 21 Because the entry of a harassment protection order did not comply with procedural due process, we reversed entry of the harassment protection order and remanded the cause with directions to vacate it. 22


The flaws in Dr. Allee's investigation, which formed the basis of her factual findings, illustrate well the significant dangers created by USC's system. This case turned on witness credibility. There are inconsistent accounts from Roe and Doe about whether their sexual encounter was consensual. The only physical evidence is photographs of small bruises on Roe's arms, breast and thigh. That evidence could support either Doe's claim of vigorous consensual sex, or Roe's charge of <mask>. Evaluation of the credibility of the only witnesses to the event was pivotal to a fair adjudication.


On May 31, 2018, the circuit court held the permanency-planning hearing. At the hearing, caseworker Felicia Kirksey explained that an emergency staffing was held on April 3 due to a report from the prosecutor's office that Arazola had requested that the no-contact order be lifted so that she could marry Cordova.1 At the time, Cordova was incarcerated for possession of firearms by certain persons, theft of property, criminal use of a prohibited weapon, and possession of drug paraphernalia. The charges of second-degree <mask> and third-degree domestic battery had been nolle prossed. The Department submitted a court report stating it had received information that Arazola had allowed AA and CA to talk to Cordova on the phone in violation of the no-contact order. Kirskey explained that initially Arazola denied that any phone calls had taken place between her and the children and Cordova, and she denied that she had plans to marry Cordova. Eventually, Arazola admitted that she had spoken to Cordova on the phone between twelve and sixteen times and that the children were involved in some of the phone calls. A transcript of one phone call was submitted to the court, and though it was not dated, Kirksey stated that she believed that the call took place after the emergency staffing because Cordova and Arazola discussed the matters discussed at the staffing. Kirksey testified that Arazola encouraged Cordova to continue to write letters to her and the children under a false name but that she instructed him not to call until after her court date.


*80SI (1) is authorized by the <mask> Reform Act (SARA)1 in conjunction with CPL 200.62. These statutes provide, in substance, that whenever a person is charged with a sex offense as defined in article 130 of the Penal Law, and the victim’s age is not an element of the offense, the indictment may be accompanied by a special information alleging that the victim was in fact less than 15 years old. (CPL 200.62.) If the accused does not concede the victim’s age, it must be proved to the jury beyond a reasonable doubt. (CPL 200.62 [2] [b].)2


Let me make clear at the outset that I entirely agree that if Mother has incurred expenses for counseling or other treatment for emotional trauma due to the <mask> of her child, she is entitled to assistance from the state Restitution Fund as a "derivative" victim ( Gov. Code, §§ 13950, subd. (a), 13951, subd. (c), (e), 13955, subd. (a)(2), (c), (f),15 13957, subd. (a)(2)16 ) and *189also is entitled to statutory restitution for these economic losses as a "victim" as defined by the restitution statute ( Pen. Code, § 1202.4, subd. (k)(3)(A) ).17 The majority observes there is a reference in the record to several claims for assistance having been submitted to the Restitution Fund. It *328acknowledges, however, neither a copy of these claims, nor any information as to the kind and amount of assistance they request, are in the record. A sentencing court cannot, of course, order statutory restitution without at least some showing as to the nature and amount of loss. (See In re Travis J. (2013) 222 Cal.App.4th 187, 204, 165 Cal.Rptr.3d 635 [no "evidence in the record" supported claimed economic loss]; People v. Harvest (2000) 84 Cal.App.4th 641, 653, 101 Cal.Rptr.2d 135 [claim for burial expenses not supported with documentation or testimony; while "mention" of such claim in probation report provided notice to defendant of a potential claim, that did not "take the place of evidence"].18 ) In any case, since assistance from the Restitution Fund is limited to economic losses, the claims presumably seek assistance for such losses, which I agree are compensable losses recoverable through statutory restitution. The issue before us, however, concerns restitution for noneconomic losses.


specifically allege and argue prejudice, because doing so would often require details unlikely to be found in the record or known to the defendant without further inquiry. 53 It is, never- theless, advisable for appellate counsel to specifically argue prejudice if counsel believes the details in the trial record perti- nent to the prejudice prong of the ineffective assistance inquiry are sufficient to adequately review the question. Appellate courts are free to determine on direct appeal the effectiveness of trial counsel on the prejudice prong if the record affirma- tively proves or rebuts the claim on that ground. 54 We conclude that Wood has adequately assigned and argued the issue of his trial counsel’s deficient conduct with respect to the motion for appointment of an expert, but neither the ques- tion of deficiency nor of prejudice can affirmatively be proved or rebutted by the trial record. We have already determined defense counsel’s motion and support thereof was inadequate to compel, under procedural due process, the appointment of a DNA expert. However, defense counsel would only have been constitutionally ineffective in this regard if adequate support actually existed. Wood argues defense counsel could have at least proffered an affidavit by Wood’s appointed expert <mask> nurse examiner. We agree with the State this was unlikely to have made a difference, because her opinions about the need for a DNA expert would fall outside the range of her expertise. But Wood does not limit his allegations to trial counsel’s failure to proffer the sexual assault nurse examiner’s affidavit. For instance, he additionally refers to the possibility, reflected in the discussion at the hearing on the motion, that someone at the Nebraska State Patrol Crime Laboratory had said no male DNA was detected on any of the swabs. See id. See, e.g., State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013); State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004); State v. Cody, 248 Neb. 683, 539 N.W.2d 18 (1995). - 427 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. WOOD Cite as 310 Neb. 391


prejudice, confusion of the issues, the witness’ safety, or inter- rogation that is repetitive or only marginally relevant. 64 In making its ruling, the trial court agreed with the pros- ecution that if the defense was trying to refresh the victim’s recollection in an attempt to impeach her testimony at trial, defense counsel could do so through other means, such as through the testimony of the forensic interviewer. It cited to State v. Molina, 65 in which we held that the court did not abuse its discretion in refusing to play for the jury a video recording of a witness as extrinsic evidence of an inconsistent statement, because its probative value was outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. We see nothing amiss in the trial court’s ruling, and we find no merit to Wood’s arguments that seek to avoid the applicable standards pertaining to the trial court’s discretion by framing the error as an act of the guardian ad litem who stopped the victim from watching the video in its entirety, as had been ordered. The court was free to order that the victim watch the remainder of the video, if it had continued to believe that was a reasonable approach. The court did not err in determining it was not. Wood alternatively argues trial counsel was ineffective by apparently abandoning further attempts to refresh the victim’s recollection after the court’s ruling and by having impeached the victim’s every inconsistent statement in an allegedly clumsy manner that Wood argues bolstered the forensic interviewer’s testimony that child victims of <mask> do not always disclose all the details of an assault in a linear fashion. We find these contentions of ineffective assistance of counsel are affirmatively refuted by the trial record. See State v. Schreiner, 276 Neb. 393, 745 N.W.2d 742 (2008). See, also, Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). - 431 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. WOOD Cite as 310 Neb. 391


Section 22.011(f) of the penal code enhances the offense of <mask> from a second-degree felony to a first-degree felony "if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01." Tex. Penal Code Ann. § 22.011(f). Section 25.01 (the bigamy statute) states,


The court notes that it could find no guidance whatsoever from any appellate decisions on how to charge the lesser inclusory concurrent count in a case, such as this, where the court deems it appropriate to do so. The elements are identical, so there is no way, based upon a strict reading of the statutes, that the jury could ever convict of the lesser crime without convicting on the greater crime as well. It would seem then that, in reality, charging both crimes is simply inviting the jury to engage in nullification, which the court is not permitted to sanction. “While there is nothing to prevent a petit jury from acquitting although finding that the prosecution has proven its case, this so-called ‘mercy-dispensing power’ ... is not a legally sanctioned function of the jury and should not be encouraged by the court” (People v Goetz, 73 NY2d 751, 753 [1988]). On the assumption that defendant will raise this issue again on appeal, the court entreats the Appellate Division to provide some guidance as to how to proceed in a situation, such as this, where the trial court has determined that it is appropriate to charge criminal sexual act in the first degree as an inclusory concurrent count of predatory <mask> against a child.


MULLINS, J. The issue before us in this certified appeal is whether the Appellate Court properly dis- missed the appeal of the petitioner, Robert Goguen, from the judgment of the habeas court on the ground that he failed in his brief to the Appellate Court to brief the claim that the habeas court had abused its discretion in denying his petition for certification to appeal pursu- ant to General Statutes § 52-470 (g).1 The petitioner, proceeding as a self-represented party, filed a petition for a writ of habeas corpus challenging his 1996 convic- tion, pursuant to a guilty plea, of <mask> in the second degree. The habeas court declined to issue the writ for lack of jurisdiction on the ground that the petitioner was not in the custody of the respondent, the Commissioner of Correction. The petitioner then filed a petition for certification to appeal to the Appel- late Court pursuant to § 52-470 (g), which the habeas court denied. Notwithstanding that ruling, the petitioner appealed to the Appellate Court, challenging the merits of the habeas court’s ruling declining to issue the writ of habeas corpus. Goguen v. Commissioner of Correction, 195 Conn. App. 502, 503, 225 A.3d 977 (2020). The Appel- late Court dismissed the appeal on the ground that the petitioner failed to brief any claim that the habeas court had abused its discretion in denying his petition for certification to appeal. See id., 505. This court then granted the petitioner’s petition for certification to appeal from the judgment of the Appellate Court on the following issue: ‘‘Did the Appellate Court properly dismiss the self-represented petitioner’s appeal because he failed to brief whether the habeas court had abused its discretion in denying his petition for certification to appeal?’’ Goguen v. Commissioner of Correction, 335 Conn. 925, 234 A.3d 980 (2020). Our task in this appeal is to harmonize the legislative mandate of § 52-470 (g) that no appeal may be taken from a habeas court’s judgment unless certification is granted with this court’s interpretation of that statute in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994) (Simms II), which provides guidance on the procedure to be followed when a habeas court denies certification to appeal. In light of the statutory require- ment, we explained in Simms II that, if a habeas court denies certification to appeal, a petitioner may obtain review only if he makes a ‘‘two part showing’’ on appeal: first, as a threshold matter, he must ‘‘demonstrate that the habeas court’s ruling constituted an abuse of discre- tion,’’ and, second, ‘‘[i]f the petitioner succeeds in sur- mounting that hurdle, the petitioner must then demon- strate that the judgment of the habeas court should be reversed on its merits.’’ Id. What Simms II leaves unclear is what exactly is required of an appellant to satisfy the threshold showing of an abuse of discretion before plenary review of the merits by a reviewing court is warranted. As we discuss more fully in this opinion, the Appellate Court has concluded in several cases that the petitioner can satisfy the threshold requirement by expressly alleg- ing in his brief that the arguments on the merits of the appeal demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal. Conversely, the Appellate Court has held that, when a petitioner fails to expressly allege or brief that the denial of certification was an abuse of discretion and simply briefs the merits of his underlying claim without any reference to the requirement of Simms II, the petitioner’s appeal must be dismissed. See part I of this opinion. We conclude that, in order to make sense of the statutory requirement and Simms II, a petitioner must at least expressly allege and explain in his brief how the habeas court abused its discretion in denying certifi- cation. We recognize, just as the Appellate Court has, that this may be done by expressly referring the reviewing court to the portion of the brief addressing the merits of the appeal and pointing out that, if the appeal is successful on the merits, then an abuse of discretion necessarily has been demonstrated. The peti- tioner must at least do that, however, in order to comply with the statute and Simms II. The petitioner may not simply disregard the require- ment of Simms II and brief only the merits of the underlying claim without any effort to comply with the ‘‘two part showing’’ required by Simms II, which includes the discrete question of whether the habeas court abused its discretion in denying certification. Simms v. Warden, supra, 230 Conn. 612. In this appeal, the petitioner never expressly alleged that the habeas court abused its discretion in denying certification to appeal. He argued only that the habeas court erred in declining to issue the writ. Accordingly, the Appellate Court’s dismissal of his appeal appropriately adheres to the dictates of § 52-470 (g) and Simms II and its progeny, and must be affirmed. The record reveals the following undisputed facts and procedural history. In 1996, the petitioner was con- victed, after entering a guilty plea, of sexual assault in the second degree in violation of General Statutes (Rev. to 1995) § 53a-71 (a) (3). The petitioner was sentenced on October 25, 1996, to ten years in prison, execution suspended after four years, and five years of probation. Thereafter, in 1998, the legislature passed legislation, now codified at General Statutes § 54-250 et seq., requir- ing persons who have been convicted of certain sexual offenses, including the petitioner’s offense, to register as sex offenders. See Public Acts 1998, No. 98-111. The legislation applied to the petitioner because he was released from prison after its effective date. On April 11, 2017, the petitioner, proceeding as a self- represented party, filed a petition for a writ of habeas corpus, claiming, among other things, that he should be allowed to withdraw his 1996 guilty plea because, due to ineffective assistance of his counsel, his plea had not been made voluntarily. Specifically, he alleged that, while he was residing in Maine in 2012, he was convicted under federal law of failing to register as a sex offender—a requirement imposed as the result of his 1996 Connecticut conviction.2 He further alleged that, as of the date he filed his habeas petition, he was incarcerated as a result of violating the conditions of supervised release that were imposed on him under federal law as a result of the federal 2012 conviction. Pursuant to Practice Book § 23-24 (a),3 the habeas court declined to issue a writ for lack of jurisdiction because, at the time that the petitioner filed the petition, he was no longer in the custody of the respondent as a result of the 1996 conviction.4 Although the habeas court did not elaborate on its basis for this determina- tion,5 it is undisputed that neither the petitioner’s term of incarceration nor his term of probation for the 1996 conviction was in effect on the date that he filed his petition for a writ of habeas corpus. The petitioner filed a petition for certification to appeal from the habeas court’s judgment pursuant to § 52-470 (g), which the habeas court denied. Despite the denial of his petition for certification, the petitioner appealed to the Appellate Court from the habeas court’s judgment declining to issue a writ of habeas corpus.6 In his brief to that court, the petitioner did not allege that the habeas court had abused its discretion in denying his petition for certification to appeal. He also did not ask the Appellate Court to con- strue his argument on the merits as a demonstration of the habeas court’s abuse of discretion. Instead, the petitioner claimed only that the habeas court had incorrectly determined that he was not in the custody of the respondent and that he should be allowed to withdraw his 1996 guilty plea because it was unintelli- gently and involuntarily made.7 The respondent con- tended in his brief that the habeas court had not abused its discretion in denying the petitioner’s petition for certification to appeal and that it had properly declined to issue the writ. The Appellate Court noted in a per curiam opinion that, under Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I), the petitioner was required, as a threshold matter on appeal, to ‘‘demonstrate that the denial of his petition for certification constituted an abuse of discretion.’’ (Internal quotation marks omit- ted.) Goguen v. Commissioner of Correction, supra, 195 Conn. App. 504. The Appellate Court further noted that, to establish such an abuse of discretion, the peti- tioner was required to demonstrate that the habeas court’s resolution of the underlying claim involved issues that ‘‘are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encourage- ment to proceed further.’’ (Internal quotation marks omitted.) Id.; see, e.g., Simms v. Warden, supra, 230 Conn. 616 (same). Finally, the Appellate Court noted that it had held previously that, ‘‘[i]f this burden is not satisfied, then the claim that the judgment of the habeas court should be reversed does not qualify for consider- ation by [the Appellate] [C]ourt.’’ (Internal quotation marks omitted.) Goguen v. Commissioner of Correc- tion, supra, 504. Because the petitioner had failed to brief this threshold issue, the Appellate Court declined to review the merits of the petitioner’s claims and dis- missed the appeal.8 Id., 505. The petitioner then filed a motion for reconsideration in which he claimed that the habeas court had abused its discretion when it denied his petition for certification to appeal. In support of this claim, the petitioner argued the merits of his underlying claim that the habeas court had incorrectly determined that he was not in the respondent’s custody. The Appellate Court denied the motion. This certified appeal followed. On appeal to this court, the petitioner contends that his argument in his brief to the Appellate Court concerning the merits of his underlying claim that the habeas court incorrectly determined that it lacked jurisdiction to entertain his habeas petition because he was not in the respondent’s custody ‘‘inherently demonstrate[s] that the habeas court [had] abused its discretion in . . . denying the petition for [certification to appeal].’’ He further con- tends that, because he was proceeding as a self-repre- sented party, the Appellate Court should have liberally construed his brief on the merits as demonstrating that the habeas court had abused its discretion in denying his petition for certification for appeal, even though he had not expressly made that allegation. Accordingly, he argues, the Appellate Court incorrectly determined that he was not entitled to review of his claims on appeal. The respondent contends that, to the contrary, the Appellate Court correctly determined that it had no authority to entertain the merits of the petitioner’s appeal under § 52-470 (g), as that statute was construed by this court in Simms I and Simms II. Specifically, the respondent argues that, under Simms II, the petitioner must ‘‘make a two part showing’’ when the habeas court has denied his petition for certification to appeal. (Emphasis added; internal quotation marks omitted.) Simms v. Warden, supra, 230 Conn. 612. To allow a petitioner to ignore the threshold requirement of dem- onstrating that the habeas court abused its discretion when it denied the petition for certification, the respon- dent argues, would entirely eviscerate the mandate of § 52-470 (g) that ‘‘[n]o appeal from the judgment ren- dered in a habeas corpus proceeding . . . may be taken unless the appellant’’ petitions the habeas court for certification to appeal and the habeas court grants the petition. We conclude that the Appellate Court prop- erly declined to review the petitioner’s claims and dis- missed the appeal. I Whether the Appellate Court had the authority to review the petitioner’s claims on appeal from the judg- ment of the habeas court when he failed even to allege that the habeas court had abused its discretion in deny- ing his petition for certification to appeal pursuant to § 52-470 (g) is a question of statutory interpretation over which we exercise plenary review. See, e.g., General Statutes § 1-2z (plain meaning rule); Canty v. Otto, 304 Conn. 546, 557–58, 41 A.3d 280 (2012) (general rules of construction are aimed at ascertaining legislative intent).


Mondy's final challenge on appeal is to the court's denial of his request for an alternative-sentencing instruction to the jury. Giving alternative-sentencing instructions is discretionary, but courts must exercise that discretion on a case-by-case basis. Ark. Code Ann. § 16-97-101(4) (Repl. 2016); Miller v. State , 97 Ark. App. 285, 287, 248 S.W.3d 487, 489 (2007). Mondy argues that the court improperly applied a blanket rule of refusing to give alternative-sentencing instructions in multicount cases. We disagree. After reviewing the record, it is clear that while the court considered the fact that the case contained multiple counts, it did not apply a blanket rule but instead treated the issue as one factor in evaluating the propriety of giving such instructions in the present case. The court also considered the fact that Mondy had now been convicted of three counts of <mask> against very young children.


The majority notes Dr. Parkin-Joseph’s acknowledgment that “AB’s allegation of <mask> was not proven or disproven by the medical exam but, nevertheless, the child’s disclosure could still be consistent with child sexual abuse,” and believes that these were “isolated answers” that although “awkward and confusing, they were not inadmissible.” But Dr. Parkin-Joseph’s testimony is contrary to this Court’s decision in People v Del Cid, 331 Mich App 532; 953 NW2d 440 (2020). There, this Court held that “an examining physician’s testimony diagnosing a child- complainant with ‘possible sexual abuse’ is inadmissible without corroborating physical evidence . . . .” This Court explained:


Any person who has been subject to domestic violence by a present or former family or household member, or who has been the victim of stalking or <mask>, may seek relief under sections 455.010 to 455.085 by filing a verified petition alleging such domestic violence, stalking, or sexual assault by the respondent. A family or household member includes persons, such as Petitioner and Respondent, who have resided together in the past. Section 455.010(7). Accordingly, Petitioner filed a verified petition alleging she had been subject to domestic violence. Section 455.010(5) states that domestic violence is "abuse or stalking committed by a family or household member, as such terms are defined in this section." Section 455.010(1)(a)-(f) provides that "Abuse" includes but is not limited to the occurrence of any of the following acts, attempts or threats against a person: assault, battery, coercion, harassment, sexual assault and unlawful imprisonment.


This is an action to recover damages based on alleged violations of article 15 of the Executive Law of the State of New York (also known as the Human Rights Law) for wrongful discharge because of refusal to accede to sexual advances and <mask> and battery. The factual assertions in the complaint allege that plaintiff was employed by defendants Technical Aid Corporation and Tac/Temps as a salesperson; was sexually harassed by defendant Curtis Stern, her immediate superior, culminating in her wrongful discharge “as a result of plaintiff’s refusal to submit to defendant’s constant sexual harassment and advances”.


As an example, appellant indicates that the continuance would have enabled him to obtain phone records of K.A.T. and that those records might have shown that K.A.T. was not where she claimed that certain instances of <mask> occurred. However, since appellant did not offer such evidence at the hearing on his motion for new trial or in some other manner, we would have to speculate that those records would be relevant and exculpatory.


However, the Mintiks Court never held, as plaintiff incorrectly contends, that “because the woman who was raped and *780murdered did not know the criminal, it was apparent that the rape and murder did not arise out of the deceased employee’s employment” (plaintiffs mem, at 5). Nor is there support in Mintiks (supra) for the bald assertion that the Court “refused to accept a finding that a <mask> and murder arose out of the employee’s work relationship” (plaintiffs mem, at 8), since as noted, the Court, troubled by what it perceived to be an incomplete record, remitted the matter for clarification. (Matter of Mintiks v Metropolitan Opera Assn., 153 AD2d, at 138.) Finally, plaintiff fails to acknowledge the holding of the Mintiks Court that “In the context of assaults upon an employee, the causal link may be supplied by a work environment which increased the risk of attack” (153 AD2d 133, 137).


We conclude that the Illinois offense of aggravated criminal <mask> contains elements substantially similar to the Missouri offense of statutory sodomy in the first degree. First, the element of the victim's age-under thirteen in Illinois and under fourteen in Missouri-is very much alike in both offenses. Although the Missouri offense includes one additional age (fourteen-year-olds) and the Illinois offense includes an age-gap provision (excepting offenders who are close in age to their victims) not found in the Missouri offense, the overall class of victims and offenders encompassed by this element of the two offenses are substantially similar. Second, the element identifying the prohibited acts in each offense, although there are some differences, contain several characteristics in common; primarily, both offenses criminalize skin-to-skin touching of the genitals and penetration, however slight, of another's sex organ or anus.9


“whether a liability insurer is obligated to defend and indemnify its insured . . . in an action brought against the insured based on an alleged <mask> by the insured’s employee. We hold that the alleged assault was an ‘accident’ within the meaning of the policy, and that the policy’s exclusions for injuries expected or intended from the standpoint of the insured and for bodily injury arising out of body massage do not apply. We therefore hold that the insurer is obligated to defend and indemnify.” In RJC, a hair salon brought an action against its insurer seeking indemnification for a claim against it arising out of the alleged improper sexual contact committed by one of its employees.


That's not quite what's going on in this case, though. Here, there is some indication, both in the text of the statute and in the legislative history, as to why the Legislature drew the distinction it did. As we have said, the literal text of the statute "is the only definitive evidence of what the legislators (and perhaps the Governor) had in mind when the statute was enacted into law."45 As set out above, the text of Penal Code Section 22.011(f), as it enhances the offense of <mask>, reads as follows:


Subsequent Court of Appeal decisions, in turn, have refused to allow the recovery of emotional distress damages in the absence of the predicate requirements laid down by our Supreme Court, including in cases where family members sought emotional distress damages based on the molestation or <mask> of another family member. (See, e.g., Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904, 906, 911, 6 Cal.Rptr.3d 105 [parents could not recover emotional distress damages against school *352district for teacher's sexual relationship with their daughter]; Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 127-131, 118 Cal.Rptr.2d 240 [sister could not recover emotional distress damages against care facility as either "bystander" or "direct victim" based on sexual molestation of her sister while a patient in the facility]; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 838-840, 10 Cal.Rptr.2d 748 [sister could not recover emotional distress damages against church as "bystander" or "direct victim" based on the molestation of her brother].)


The case was called for trial on October 17, 2016. Before trial began, the State abandoned two of the eight counts alleged. Appellant entered a plea of not guilty to all remaining counts. After hearing the evidence presented, which included the testimony of K.A.T., as well as the recording of the phone call between K.A.T. and appellant, the jury found appellant guilty of one count of indecency with a child, one count of <mask> of a child, and one count of aggravated sexual assault of a child. After hearing punishment evidence, the jury returned a verdict sentencing appellant to five years' incarceration and $10,000 fine for the indecency conviction, thirteen years' incarceration and a $10,000 fine for the sexual assault conviction, and forty years' incarceration and a $10,000 fine for the aggravated sexual assault conviction.


In reviewing a statute for an equal protection violation, we must first determine the level of scrutiny required.73 I dissent from the Court's refusal to answer that question. I also disagree with the Court's resolution of Appellant's challenge to statutory classification at issue through resort to rational speculation rather than first considering the text and history of the statute itself. However, I agree with the Court that the punishment enhancement for <mask> in Section 22.011(f) serves a legitimate purpose because it allows the State to punish more harshly sexual assault committed through a bigamous or polygamous relationship. Absent a showing that the statute significantly interferes with the fundamental right to marry, the statute does not have to be narrowly tailored to its intended goal. If the statute sweeps too broadly, it is up to our Legislature to pick a different broom.


In the indictment now before the court, the evidence presented to the grand jury is sufficient (Jennings, 69 NY2d 103; Jensen, 86 NY2d 248). The defendant confessed to punching the complainant repeatedly in the face, taking her wallet, and inserting his finger in the complainant’s vagina. Since there was no physical injury sustained from the <mask>, the only evidence of a sexual assault came from the defendant’s confession. There is, however, sufficient corroborating evidence *907from the complainant’s testimony to infer that a crime of a sexual nature occurred (Cuozzo, 292 NY 85; Daniels, 37 NY2d 624; Lytton, 257 NY 310). The complainant testified that she was initially struck from behind and knocked into a tree, her assailant began to rip off her clothing, and then she lost consciousness. A reasonable inference of an intent to sexually assault the complainant can be drawn from the defendant ripping off the complainant’s clothing (Jennings, 40 AD2d 357). It is irrevelant, for the purposes of evaluating the sufficiency of evidence, that the defense may be able to argue another purpose for removing the complainant’s clothing (Lipsky at 571). The defendant’s admission, when coupled with the testimony of the complainant, establishes that the defendant intended not only to rob the complainant, but to sexually assault her as well (Daniels at 629; see also Lipsky at 571). While the corroborating evidence does not establish every element of a sexual assault, there is sufficient proof, of some weight, to establish that a crime of a sexual nature occurred (Chico, 90 NY2d 585; Cuozzo, 292 NY 85). Since there is sufficient evidence to show that the defendant did not confess to an imaginary crime (Booden, 69 NY2d 185), the charges are sufficiently corroborated and are best left to a jury (Lipsky at 571).


The jury convicted Robert Charles Moody of three sexual offenses against a child: (1) aggravated <mask> of a child by intentionally or knowingly causing his sexual organ to contact the sexual organ of a child under the age of fourteen; (2) indecency with a child by contact by intentionally or knowingly engaging in sexual contact with a child under seventeen years of age with the intent to arouse or gratify his sexual desire; and (3) indecency with a child by exposure by intentionally or knowingly exposing his genitals to a child younger than seventeen years of age with the intent to arouse or gratify his sexual desire. See TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B), (2)(B), 21.11(a)(1), (a)(2)(A) (West 2011 & Supp. 2016). By agreement of the parties, only the aggravated sexual assault of a child was submitted to the jury for punishment. After hearing additional evidence, the jury assessed punishment at twenty years' confinement, and the trial court sentenced Appellant accordingly.


Lastly, in Point IX, Mother asserts that the court erred in admitting and relying upon evidence of a <mask> perpetrated against her because the evidence was irrelevant and immaterial. At trial and over Mother's objection, the court allowed the Division to present evidence that Mother was sexually assaulted by a cab driver in June 2016 after she allowed him into her home. In its judgment, the court cited the incident as an example of Mother's making poor and unsafe decisions that could negatively impact Son, which the court determined is a condition of a potentially harmful nature that continues to exist.


The jury found Appellant not guilty of the digital penetration of Elaine but found him guilty of <mask> by oral contact and of the three counts of delivery of marijuana to minors. After a punishment trial, the jury assessed Appellant's punishment at fifteen years' confinement for the sexual assault and at seven years' confinement for each of the delivery convictions.5 The trial court rendered judgment on the jury's verdicts and ordered that the sentences run concurrently. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2017).


Prudholm first compared California's sexual battery statute with Texas's <mask> statute and observed that sexual battery encompassed "a markedly different range of conduct" than sexual assault. 333 S.W.3d at 599. California's sexual battery statute criminalized "touching" - i.e., physical contact with - an "intimate part" - i.e., sexual organ, anus, groin, or buttocks of any person or the breast of a female - whereas Texas's sexual assault statute criminalized the " 'penetration or contact' of a person's 'anus' or 'sexual organ[.]' " Id. Moreover, the sexual battery statute explicitly excluded rape and sexual penetration from its scope. Id. For those reasons, Prudholm held that while the elements of sexual battery and sexual assault might "be similar in a general sense, they do not display the high degree of likeness required to be substantially similar." Id.


more appropriate, but did not make specific findings. Juan appealed. We moved the appeal to our docket. We find that the procedure utilized in this case deprived Juan of sufficient notice and an opportunity to be heard, in violation of his due process rights. Accordingly, we reverse the decision of the district court and remand the cause with direc- tions to vacate the harassment protection order. I. BACKGOUND Yerania and Juan worked together at a Lincoln grocery store for approximately 2 years, until December 2020. Their shifts were generally 3 to 7 a.m., and there were typically no other employees present in the store during this time. Both parties were married to other people. In March 2021, Yerania filed a petition and affidavit to obtain a <mask> protection order against Juan. The peti- tion alleged Juan had “[p]ester[ed]” Yerania at work; showed her his genitals; and touched her breasts, genitals, and buttocks “for several weekends.” It also alleged Juan forcibly kissed Yerania and forced her to touch his penis while they were in a walk-in cooler. According to Yerania, Juan followed her when she took her children to school and threatened to kidnap both her and her children. Yerania alleged that she was very afraid and did not feel safe working alone with Juan. The same day Yerania’s petition was filed, the district court entered an ex parte sexual assault protection order against Juan. Approximately 2 weeks later, Juan filed a request for a hear- ing on the protection order. After several delays, a hearing was held on May 14, 2021. At the hearing, Yerania testified through an interpreter. Yerania admitted that she did not understand English; that the allegations contained in the typed, English portion of her petition were “uncertified”; and that they were translated with the help of a friend. Over Juan’s objection, the petition and affidavit were admitted into evidence; the court noted that the English portion of the petition is what it had relied on in entering its ex parte order due to a “language barrier.” - 752 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749


(c) Fundamental Fairness and Advocacy by Court Yerania has suggested that the language of § 28-311.11 sufficiently made clear the court may issue a harassment pro- tection order rather than a <mask> protection order if such is deemed appropriate based on the facts in the petition, affidavit, and evidence presented at a show cause hearing and that thus, Juan’s rights were not violated because he was given a show cause hearing on the matter. But even if Juan had himself understood that § 28-311.11, as amended, granted the court authority to consider a different form of protection order as the result of evidence provided at the show cause hearing, after such hearing had concluded, and even when an ex parte order had already been entered, his due process rights would still have been violated. [5] With its amendments, § 28-311.11(8) grants the court authority to consider an alternative protection order, even after the show cause hearing has concluded and without a request by the petitioner, as long as it makes specific findings. To satisfy the requirement of specific findings, the court must set forth the reasoning for its order, explaining why its conclusion is appropriate; specific findings cannot be satisfied by simply quoting the statutory language. 26 Here, the district court did not make specific findings: Within the harassment protection order entered against Juan, it included a statement of general findings, i.e., that it had jurisdiction of the parties and the sub- ject matter and that “a Harassment Protection Order is more appropriate,” but left blank the portion of the form in which the court is apparently meant to enter its specific findings. Such failure to make specific findings, on its own, is already enough to warrant a reversal of the protection order entered against Juan. See, Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 391 (2015); Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007). - 765 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749


The defendant in this case has offered what could be considered compelling grounds in support of his position that he should be released on bail while he pursues an appeal from his criminal conviction. Seeking such relief from this court, he asserts that “it is within this Court’s jurisdiction under CPL § 460.50, 460.60 and 510.30, in this Court’s discretion and in the interest of justice to stay sentence pending appeal and release [him] ROR or at least at the bail previously imposed prior to trial” (Reply Affidavit, at 6). Unfortunately for him, this State’s Legislature has determined that individuals convicted of certain serious <mask> crimes against children “represent! ] * * * an insular group” as to whom “the entitlement of postconviction bail” shall not be extended (see, Matter of Gold v Shapiro, supra, 62 AD2d at 65, 68). Since “[t]he determination of which offenses shall be bailable [after conviction] is primarily a question for the Legislature,”8 which has “absolute [ly] bar [red]” this court from releasing defendant under any conditions pending the appeal from his conviction, the merits of his application may not be considered, and defendant’s motion is denied in all respects (see, id. at 68).


The Bureau of Justice Statistics, the statistical agency of the U. S. Department of Justice, in its National Crime Victimization Survey dated August 1995, indicates that about 500,200 rape/sexual assaults were reported by women in 1992-1993.7 The Bureau of Justice gives the comparable figure for men as 48,500. Mezey and King, in Male Victims of <mask> (at 1 [1992] [hereinafter Mezey and King, Male Victims of Sexual Assault]), estimate rape of men to be 5-10% of total rapes reported. The American Medical Association, bringing attention to an epidemic of sexual assault, recently reported that males are the victims in 5% of reported sexual assaults. (NY Times, Nov. 7, 1995, at 21, col 1.)


attended, “‘interfering with [her] educational experience.’” 16 An ex parte <mask> protection order was entered against A.G., who then requested a show cause hearing on whether the sexual assault protection order should remain in place. After the close of evidence at the hearing, the trial court stated that the sexual assault protection order would not remain in effect, but that it would “enter a protection order.” 17 The trial court subsequently dismissed the sexual assault protection order and, after sua sponte filing D.W.’s petition and affidavit under a new case number, entered a harassment protection order in that case. On appeal, we held that the respondent, A.G., was not pro- vided with sufficient notice and an opportunity to be heard and that the entry of the harassment protection order had violated A.G.’s right to procedural due process. In our analysis, we discussed and distinguished both Linda N. and Sherman. We stated: “Inherent in both Linda N. and Sherman is a recogni- tion that a respondent in a protection order proceeding must be notified of the grounds upon which a protection order is sought and provided with an opportunity to respond to those grounds at the show cause hearing.” 18 In accordance with reasoning supplied by the Linda N. and Sherman opinions, we found that A.G. was not provided with sufficient notice and an opportunity to be heard regarding a harassment protection order. The original petition, ex parte order, and show cause hearing had all either alleged a sexual assault or focused on whether the sexual assault protection order entered against A.G. should remain in place. D.W. did not request a harassment protection order or make allegations sufficient to give notice that she sought such an order, and no evidence could be identified at the show cause hearing that tended to show A.G. harassed D.W. Id. at 44, 926 N.W.2d at 654. Id. at 43, 926 N.W.2d at 654. Id. at 50, 926 N.W.2d at 657. - 761 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749


In Docket No. 159493, Jordan Smits filed an action in the Wayne Circuit Court against the same defendants in May 2017, alleging workplace harassment in violation of the ELCRA; negligent and intentional infliction of emotional distress; and negligence, gross negligence, and wanton and willful misconduct. Smits later filed a second complaint against Morse individually, alleging <mask> and battery, negligent and intentional infliction of emotional distress; and negligence, gross negligence, and willful and wanton misconduct. Smits was employed as a paralegal at the firm. In December 2015, she attended the firm’s Christmas party. At the party, according to Smits, Morse approached her from behind and grabbed her breasts. Smits reported the assault to human resources, but no action was taken. Smits later resigned and declined to accept two weeks’ severance pay in exchange for signing a nondisclosure agreement. Defendants moved to dismiss and compel arbitration, citing the MDRPA, which Smits had signed when she began working for the firm. The trial court, Daniel A. Hathaway, J., granted defendants’ motion, concluding that the arbitration agreement was valid and enforceable and that Smits’s claims were related to her employment and therefore subject to arbitration. Smits appealed in the Court of Appeals. The Court of Appeals, JANSEN, P.J., and BECKERING, J., (O’BRIEN, J., dissenting), consolidated all three cases and affirmed the trial court’s dismissal of Smits’s complaint against Morse individually but reversed the circuit court rulings in the other two cases. 327 Mich App 375 (2019). The Court of Appeals majority concluded that plaintiffs’ claims of sexual assault were not subject to arbitration because sexual assault was not “related to” plaintiffs’ employment. Further, the Court of Appeals stated that the fact that the alleged assaults would not have occurred but for plaintiffs’ employment with the firm did not provide a sufficient nexus between the terms of the arbitration agreement and the alleged sexual assaults. The Supreme Court granted defendants’ application for leave to appeal. 504 Mich 962 (2019).


The defendant was indicted, inter alia, for various crimes relating to a <mask> in 1992. The People moved, prior to trial, for leave to introduce evidence on their direct case concerning the underlying facts and circumstances of sexual misconduct by the defendant in connection with the defendant’s 1982 burglary convictions. The court ruled that the People could introduce evidence with respect to four prior incidents in which the defendant had used force to sexually abuse women. The defendant then abandoned his consent defense, and the People did not introduce the evidence concerning the prior sexual misconduct. The defendant contends that the ruling "forced” him to abandon his defense that the complainant consented to his sexual advances, and thereby constituted reversible error.


Appellant Michael Ray Senn sexually assaulted and impregnated his eighteen-year-old mentally-disabled biological daughter Brenda.1 A jury convicted Senn of <mask>, for which he was sentenced to life imprisonment after his conviction was statutorily enhanced from a second-degree felony to a first-degree felony under Texas Penal Code section 22.011(f).2 See Tex. Penal Code Ann. § 22.011(f) (West 2011). In four issues, Senn challenges the sufficiency of the evidence to trigger the enhancement, the constitutionality of section 22.011(f) as applied to him, and the absence of a bigamy instruction from the jury charge. For the reasons stated below, we will affirm.3


Under a plain reading of section 22.011(f), a <mask> may be enhanced to a first-degree felony when the victim is a person (1) whom the actor was prohibited from marrying or purporting to marry or (2) with whom the actor was prohibited from living under the appearance of being married under section 25.01. See id. § 22.011(f). Section 22.011(f)'s phrase "prohibited from marrying" is not modified by the phrase "under Section 25.01"; there is no comma preceding "under Section 25.01" to indicate that it was intended to modify the preceding clauses and not just the last one. See Tex. Gov't Code Ann. § 311.011(a) (West 2013) (requiring courts to construe words and phrases "according to the rules of grammar and common usage"); Ludwig v. State , 931 S.W.2d 239, 241 (Tex. Crim. App. 1996) (noting that "[g]enerally, the presence of a comma separating a modifying clause in a statute from the clause immediately preceding is an indication that the modifying clause was intended to modify all the preceding clauses and not only the last antecedent one" and presuming that this convention of punctuation applies equally to phrases as to clauses); William Strunk, Jr. & E.B. White, The Elements of Style 30 (4th ed. 2000) ("Modifiers should come, if possible, next to the words they modify."); Bryan A. Garner, Garner's Modern American Usage 431 (1998) ("When a word refers to an antecedent, the true antecedent should generally be the closest possible one."). Moreover, a comparison of the text of section 22.011(f) to the text of section 25.01 reveals that section 25.01 defines the offense of bigamy using the phrases "purports to marry" or "lives with ... under the appearance of being married." See Tex. Penal Code Ann. § 25.01(a). Section 25.01 does not include the phrase "prohibited from marrying." See id. Thus, under both a plain reading of the statute-applying the rules of grammar, and a comparison of the language used in section 25.01-looking to other provisions within the statutory scheme, it is clear that the phrase "prohibited from marrying" is not tied to the phrase "under Section 25.01." The State was therefore not required to show that Senn was engaged in a bigamous relationship with Brenda under section 25.01 in order to trigger application of penal code section 22.011(f)'s enhancement provision.


We interpreted the statutory exception for facilities which are "not in fact open to the public" in Doe ex rel. Subia v. Kansas City, Missouri School District , 372 S.W.3d 43 (Mo. App. W.D. 2012). In Subia , an elementary-school student alleged that a school district's failure to protect the student from sexual harassment and <mask> in the school "constituted sex discrimination that deprived him of the full, free, and equal use and enjoyment of the School District's elementary school, a public accommodation." Id. at 46.


Judicial acceptance of a syndrome associated with <mask> is not limited to cases involving rape or attempted rape. People v Taylor (supra) is authority for the recognition of a child sexual abuse syndrome where a female child was sodomized or otherwise sexually abused, but not raped. (People v Califano, 216 AD2d 574, 575, Iv denied 86 NY2d 791; People v Sansevero, 185 AD2d 256; People v Knupp, 179 AD2d 1030 [syndrome recognized but conviction reversed because expert testimony introduced to prove crime took place].)


In reviewing a statute for an equal protection violation, we must first determine the level of scrutiny required.73 I dissent from the Court's refusal to answer that question. I also disagree with the Court's resolution of Appellant's challenge to statutory classification at issue through resort to rational speculation rather than first considering the text and history of the statute itself. However, I agree with the Court that the punishment enhancement for <mask> in Section 22.011(f) serves a legitimate purpose because it allows the State to punish more harshly sexual assault committed through a bigamous or polygamous relationship. Absent a showing that the statute significantly interferes with the fundamental right to marry, the statute does not have to be narrowly tailored to its intended goal. If the statute sweeps too broadly, it is up to our Legislature to pick a different broom.


McDaniel was initially charged with four counts of first-degree <mask> of the same minor victim for two acts that occurred in June 2015 and two acts that occurred in July 2015. The first two counts were nolle prossed by the State because the alleged sexual acts occurred outside the Thirteenth Judicial District. McDaniel was subsequently charged in the second amended information with two counts of first-degree sexual assault for engaging in sexual intercourse and/or deviate sexual activity with the victim, M.F., on July 6 and July 8, 2015. He was convicted on the first count and acquitted on the second count.


Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. I. INTRODUCTION Marvin L. Wood appeals from his conviction of first degree <mask> of a child. He asserts the trial court erred by refusing to appoint him a DNA expert, sustaining the prosecu- tion’s objection to further use of a forensic video to refresh the victim’s recollection, and sustaining the State’s relevancy objection to his attempt to adduce the fact that the declarant of certain out-of-court statements was a convicted felon. Wood also makes numerous claims of ineffective assistance of his trial counsel, including the failure to adequately support the motion for a DNA expert, the handling of the State’s DNA evi- dence, and the cross-examination of the victim. We affirm the judgment below. II. BACKGROUND With counsel different from trial counsel, Wood appeals his conviction, following a jury trial, of first degree sexual assault of a child pursuant to Neb. Rev. Stat. § 28-319.01(1)(a) (Reissue 2016). Trial counsel did not request that the jury be instructed on a lesser-included offense of attempted first degree assault of a child. The victim was friends with Wood’s daugh- ter, and the assault occurred during a sleepover with Wood’s daughter at Wood’s apartment. The victim was 8 years old at the time of the assault and 9 years old at the time of trial. 1. Motion to Employ Expert Witness Wood was charged in September 2019. Due to laboratory delays in DNA testing, trial was continued to August 3, 2020, with a pretrial conference set for July 2. The DNA test results became available to the defense on June 8. At the July 2 pre- trial conference, defense counsel indicated readiness to go - 397 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. WOOD Cite as 310 Neb. 391


<mask> protection order “on its own initiative” raised questions as to the source of the harassment protection order theory, stating: The trial court appears to have correctly sensed that there was something standing in the way of its entering a harassment protection order in the case filed by D.W. We can discern no other reason why the trial court would take the puzzling step of sua sponte refiling D.W.’s initial petition under a new case number and then entering the harassment protection order in that case. 39 There is a danger that by sua sponte selecting an alternate the- ory and form of protection order by making specific findings, but without a request by the petitioner, a court may erroneously act as an advocate for the petitioner. Simply put, the amendments made to § 28-311.11 in 2019 and since that time do not relieve courts of their duty to ensure the due process described by this court in D.W. and Linda N. and by the Court of Appeals in Sherman. To avoid future due process violations, courts faced with similar circumstances should continue to utilize the procedure as laid out by Sherman: When presented with a situation in which an ex parte protection order has been entered, but at the hearing, it becomes apparent that the matter may more prop- erly be considered as a different type of protection order than the type previously entered ex parte, the judge should explain the requirements for each type of protection order and allow the petitioner to choose which theory to pursue. If the peti- tioner chooses to pursue an alternative theory to the petition and affidavit filed, and the respondent objects, the court should inquire if the respondent is requesting a continuance, which should be granted if so requested, while leaving the ex parte protection order temporarily in place. Here, Juan was not provided with sufficient notice inform- ing him of the court’s authority to consider a harassment D.W. v. A.G., supra note 15, 303 Neb. at 51, 52, 926 N.W.2d at 658. - 768 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749


III. ASSIGNMENTS OF ERROR Wood assigns that the district court erred when it (1) denied his motion that a DNA expert be appointed, (2) refused to allow Wood to refresh the victim’s recollection by having her watch the video of her forensic interview, and (3) prohibited Wood from asking the victim’s mother if Price, who was Wood’s employer, was a convicted felon. Wood assigns that trial counsel was ineffective in (1) fail- ing to request a lesser-included instruction of attempted first degree <mask> of a child, (2) “Failing to Investigate the Case Fully,” (3) presenting “Virtually No Evidence in Support of his Motion to Employ an Expert Witness and for Payment of the Same,” (4) failing to object to “Clearly Irrelevant and Unduly Prejudicial Testimony About DNA Testing Results with No Statistical Significance,” (5) failing to object to the biologist’s “Testimony” regarding the Y-STR DNA testing conducted by her supervisor, (6) offering exhibit 20, (7) “in - 415 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. WOOD Cite as 310 Neb. 391


“A person is guilty of predatory <mask> when he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and when: . . . “2. He or she has engaged in conduct constituting the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, against one or more additional persons[.]” Defendant’s first contention is that the People fail to state a crime or offense in counts twelve through fifteen of the indict*785ment. Since the four counts in question are uniformly worded and defendant’s arguments on this point are exactly the same for each, an analysis of one count will be sufficient to address them all.


Substantively as well, the City's approach to the privilege issue is flawed. The City relies primarily on the fact that Gilleon's initial group text was sent to third parties as support for the proposition that the entire subject of the <mask> investigation was never intended to be confidential. The fact that the sexual assault case was first discussed in a group text certainly suggests that the text itself was not confidential, but it hardly follows that Hoover's subsequent private conversation with Gilleon was not in confidence.


"Any adult who has been subject to domestic violence by a present or former adult family or household member, or who has been the victim of stalking, may seek relief under section 455.010 to 455.085 by filing a verified petition alleging such domestic violence, stalking, or <mask> by the respondent." Section 455.020. "As such, a full adult protection order may be entered only upon proof that the petitioner was: (1) subjected to abuse by a present or former adult family or household member or (2) subjected to stalking." H.K.R. v. Stemmons , 295 S.W.3d 220, 223 (Mo. App. W.D. 2009).


This case presents a somewhat unique set of circumstances. Unlike some others (compare In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 592, 283 Cal.Rptr. 732 ), here we know exactly what was and was not disclosed when the City elected to question Hoover regarding her phone call with attorney Gilleon. We have the transcript of the March 22 interview. Reviewing that transcript, there is nothing Hoover said during the interview that could "likely be used advantageously against" her in her case against the City. ( Gregori , supra , 207 Cal.App.3d at p. 309, 254 Cal.Rptr. 853.) Hoover told the investigators she gave Gilleon no information about the <mask> case. And although she acknowledged that Gilleon provided her with some information, she could not specifically identify what that information was because she had learned so many more details from the public press, particularly the Voice of San Diego article.


The petitioner, who had previously been convicted of <mask> in the first degree and risk of injury to a child, sought a writ of habeas corpus claiming, inter alia, that his trial counsel had provided ineffective assis- tance. Following a trial, the habeas court rendered judgment denying the petition, concluding that trial counsel’s performance was not deficient. Thereafter, the habeas court granted the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court correctly concluded that the petitioner failed to prove that his trial counsel’s performance was deficient: the habeas court reasonably concluded that the petitioner did not overcome the presumption that his trial counsel had familiarized himself with topics germane to child sexual assault cases, as the petitioner failed to present credible evidence that his counsel had failed to achieve a reasonable degree of familiarity with various materials relevant to child forensic interview protocol, disclosure literature and validation criteria; moreover, this court could not second-guess on appeal the court’s credibility determinations regard- ing trial counsel’s testimony that he had retained an expert, S, to assist with the defense, and the petitioner did not overcome the presumption that trial counsel’s decision regarding what topics to develop during the examination of S and which topics to reserve for cross-examination of the state’s expert witnesses was based on sound trial strategy. Argued November 29, 2021—officially released February 8, 2022


(b) Sentencing The presentence investigation (PSI) report considered by the court prior to sentencing was 400 pages. It showed as Blake’s adult criminal history a recent conviction in another case, case No. CR 18-846, for attempted first degree <mask>, the conviction for assault in case No. CR 19-914 that was part of the plea bargain agreement, two prior convictions for third degree assault, and a conviction for disturbing the peace. Blake had earned his diploma through the GED program and completed a “DBT skills program” while incarcerated. A review of misconduct reports showed Blake “routinely violates the rules.” Blake described himself as a “sex addict.” However, he denied having committed the attempted sexual assault for which he was being sentenced. The PSI report demonstrated that Blake has been diagnosed with adjustment disorder, adolescent antisocial behavior, mood disorder, “ADHD,” borderline intellectual functioning, post- traumatic stress disorder, schizophreniform disorder, and oppo- sitional defiant disorder. An evaluation completed in November 2019 showed Blake was in the “very high or high-risk range” to reoffend. The PSI report showed Blake had become a state ward at the age of 9. Blake reported he was physically abused by his father and had experienced sexual abuse in some of his out-of-home placements. Before his removal from his parents’ home, Blake “walked in on [his parents] having sex ‘all the time,’” because they did not lock their door and he did not have his own room. In his placements as a juvenile, Blake had a history of inappropriate sexual behavior toward younger peers. This - 778 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BLAKE Cite as 310 Neb. 769


specifically allege and argue prejudice, because doing so would often require details unlikely to be found in the record or known to the defendant without further inquiry. 53 It is, never- theless, advisable for appellate counsel to specifically argue prejudice if counsel believes the details in the trial record perti- nent to the prejudice prong of the ineffective assistance inquiry are sufficient to adequately review the question. Appellate courts are free to determine on direct appeal the effectiveness of trial counsel on the prejudice prong if the record affirma- tively proves or rebuts the claim on that ground. 54 We conclude that Wood has adequately assigned and argued the issue of his trial counsel’s deficient conduct with respect to the motion for appointment of an expert, but neither the ques- tion of deficiency nor of prejudice can affirmatively be proved or rebutted by the trial record. We have already determined defense counsel’s motion and support thereof was inadequate to compel, under procedural due process, the appointment of a DNA expert. However, defense counsel would only have been constitutionally ineffective in this regard if adequate support actually existed. Wood argues defense counsel could have at least proffered an affidavit by Wood’s appointed expert <mask> nurse examiner. We agree with the State this was unlikely to have made a difference, because her opinions about the need for a DNA expert would fall outside the range of her expertise. But Wood does not limit his allegations to trial counsel’s failure to proffer the sexual assault nurse examiner’s affidavit. For instance, he additionally refers to the possibility, reflected in the discussion at the hearing on the motion, that someone at the Nebraska State Patrol Crime Laboratory had said no male DNA was detected on any of the swabs. See id. See, e.g., State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013); State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004); State v. Cody, 248 Neb. 683, 539 N.W.2d 18 (1995). - 427 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. WOOD Cite as 310 Neb. 391


As noted by the Court of Appeals, “The term of art, accidental injury, lacks a statutory definition” (Matter of Johannesen v New York City Dept. of Hous. Preservation & Dev., 84 NY2d 129, 136, supra). Plaintiffs argument that rape is not a compensable injury within the purview of the Workers’ Compensation Law is unsupported in this context by the cited cases which plaintiff purports stand for this assertion. In Joshua S. v Casey (206 AD2d 839), the Appellate Division, Fourth Department, in granting a motion made by defendant employer to dismiss a claim of sexual abuse under the doctrine of respondeat *779superior, held that the alleged <mask> by its employee was not within the scope of employment and could not be said to have been in furtherance of the employer’s business. Similarly, in the cited First Department case of Nicollette T. v Hospital for Joint Diseases/Orthopaedic Inst. (198 AD2d 54), workers’ compensation was not an issue and the Court, in affirming dismissal of the complaint, held that the employee’s acts fell outside the scope of his employment. Equally unavailing is plaintiffs reliance on Noto v St. Vincent’s Hosp. & Med. Ctr. (160 AD2d 656) or Curtis v City of Utica (209 AD2d 1024). All of these cases deal with the employer’s liability for intentional tortious acts committed by an employee, and are irrelevant in this context. None support the plaintiffs contention that rape, as an intentional act, cannot be considered an accidental workplace injury.


A.P. went to the hospital and underwent a <mask> exam. The examining nurse detected a tear in A.P.'s vagina that was consistent with a sexual assault. Meanwhile, Officer Tom Meiers spoke with Booto and Booto expressed his desire to be in a relationship with A.P. because he believed he loved her. Booto recounted how they went to A.P.'s dorm room where he kissed and touched her, removed her clothing, and had sexual intercourse with her.


Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq. ) (Title IX), forbids sex-based discrimination in all schools, colleges and universities that receive federal funding. (See 20 U.S.C. §§ 1681 -1688.) Title IX does not specifically address <mask>, but the United States Supreme Court has held that a school may be liable for discrimination and face, among other things, a loss of federal funding, if it mishandles a student's sexual assault claim. (See Davis v. Monroe County Bd. of Educ . (1999) 526 U.S. 629, 633, 647-648, 119 S.Ct. 1661, 143 L.Ed.2d 839.)


R.H. testified that she met petitioner at her church. She testified that religion was important to her and that she told petitioner prior to October 7, 2018, that “[b]ecause of [her] faith,” she “was waiting until marriage to have sex.” As to the events of October 7, 2018, she testified she had made plans to meet petitioner at Ritter Park but they ultimately got in the car to drive around. Thereafter, petitioner anally raped her. R.H. testified that she told her Bible study leader, Janna Salyers, about the <mask>. She then told her parents and ultimately reported the incident to law enforcement. Defense counsel cross-examined R.H. about how she came to know petitioner and their budding relationship. Petitioner’s counsel also cross-examined R.H. about text messages between petitioner and R.H. that discussed God and living a Christian life.


Count I: Aggravated <mask> of a Child Count II: Aggravated Sexual Assault of a Child Count III: Indecency with a Child by Sexual Contact Count IV: Indecency with a Child by Sexual Contact Count V: Indecency with a Child by Sexual Contact Count VI: Indecency with a Child by Sexual Contact Count VII: Indecency with a Child by Sexual Contact The State concedes the evidence only supports six counts in the indictment; and, that this court should reform the judgment to enter a judgment of acquittal as to count VII.


McCreary informed Stricklin that after he told them what happened she could help him get his affairs in order and tried to persuade Stricklin to tell her what happened. Stricklin said, "Tell me I ain't going to jail tonight." Officer Minze responded, "I can't do that." Stricklin said, "Tell me I can get out tomorrow." Officer Minze responded, "That would be whatever bond they set. I mean, if you go, I can't tell you that." Stricklin said, "I want to know you're, what exactly is I'm being charged with right now? What exactly are you charging the person that did this with right now?" Officer Minze stated it would be <mask>. Stricklin said, "I want tomorrow to get my affairs in order. Please?" Officer Minze responded, "I can't promise you that. I mean, you'll have bond." Stricklin asked if he would get a public defender if he admitted to causing Victim's injury and Officer Minze told him he would get a public defender if he did not have the means for an attorney. Stricklin stated, "[i]f that's what it takes to keep her out of trouble," then admitted he accidently put his finger in Victim's vagina. Stricklin said Victim was crying in the middle of the night and he found her in the closet with her diaper around her ankles so he picked her up, tripped over a toy, fell, and when he did, his finger went inside Victim's vagina. He said he did not see any blood.


on or about October 28, 2016, did then and there, while knowing that he was required to register with the local law enforcement authority in the county *907where the defendant resided or intended to reside for more than seven days, to-wit: Waller County, because of a reportable conviction for Aggravated <mask> of a Child, the defendant failed to report a change in Online Identifiers to the Waller County Sheriff's Office. Odom filed a pretrial application for writ of habeas corpus, challenging Article 62.0551(a) as facially unconstitutional for five reasons. At the hearing on the habeas petition, Odom's counsel stated that Odom was moving forward on only two grounds-his First Amendment and overbreadth arguments, both of which the trial court rejected.


Arkansas Code Annotated section 9-27-356 provides that if a juvenile is adjudicated delinquent for second-degree <mask>, the court shall order a sex-offender *483screening and risk assessment.6 This statute provides that the court may order sex-offender screening and a risk assessment if a juvenile is adjudicated delinquent for any offense with an underlying sexually motivated component (i.e., fourth-degree sexual assault).7 Arkansas Code Annotated section 9-27-356(b)(2) further provides that the court may require that a juvenile register as a sex offender upon recommendation of the sex-offender-assessment committee and following a hearing.8 Regarding issues of statutory interpretation, this court has stated the following:


Inmates have a due process right secured by the Eighth and Fourteenth Amendments that entails reasonable protection from acts of violence and <mask> perpetrated by fellow inmates. Prison officials have a correlative duty to exercise “reasonable care to prevent prisoners from intentionally harming others or from creating an unreasonable risk of harm.” (Woodhous v Commonwealth of Virginia, 487d 889, 890; Penn v Oliver, 351 F Supp 1292; Van Horn v Lukhard, 392 F Supp 384.)1


In Miles v. State , 468 S.W.3d 719 (Tex. App.-Houston [14th Dist.] 2015), aff'd on other grounds , 506 S.W.3d 485 (Tex. Crim. App. 2016), the judgment recorded that the defendant had been convicted of <mask> "of a child 14-17 years of age" and compelling prostitution "less than 18 years of age." On appeal, the defendant argued that the judgment should be reformed because the Penal Code only authorized convictions for "sexual assault" and "compelling prostitution." Id. at 736-737. The court disagreed, holding that these phrases accurately described the offenses and that these statutes criminalize different types of conduct which have varying defenses and punishments. Id. at 737-738. The court specifically held that there was no authority for the proposition that a judgment had "to include only the title of the offense identified in the Penal Code." Id. at 738. Similar results and reasoning are found in several cases which, while without precedential value, are instructive. See e.g., Rodriguez v. State , No. 14-15-00339-CR, 2016 WL 4922608, at *5 (Tex. App.-Houston [14th Dist.] Sept. 15, 2016, no pet.) (mem. op., not designated for publication) (declining to reform judgment for "assault-family member" to "assault" because *509defendant failed to provide any reason compelling such reformation); Ayles v. State , No. 01-10-00049-CR, 2011 WL 941259, at *1 (Tex. App.-Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op., not designated for publication) (holding that trial court did not err by entering judgment for "Aggravated Sexual Assault of a Child Under 14" rather than "Aggravated Sexual Assault"); Torres v. State , No. 01-09-00936-CR, 2011 WL 148055, at *2 (Tex. App.-Houston [1st Dist.] Jan. 13, 2011, no pet.) (mem. op., not designated for publication) (concluding trial court did not err by entering judgment for "burglary of a habitation with intent to commit theft" rather than "burglary"). The thread that runs through these cases is based on the concept that so long as the judgment includes "an accurate description of the offense" then pedagogical precision is not required. See Davis v. State , 501 S.W.2d 629, 633 (Tex. Crim. App. 1973). Under this standard, the offense described in the judgment in the case before us is not incorrect and is, therefore, no error.


On June 28, 2015, two days after the alleged assault, Jane was medically examined by the Santa Barbara County <mask> Response Team (SART). She reported the sexual assault to campus police, but declined to divulge the identity of the suspect or location of the sexual battery. On June 30, 2015, Jane's complaint was sent to UCSB's Title IX office. The office attempted to contact Jane for further information, but she did not respond and the file was closed.


Appellant was indicted for the <mask> of Elaine by digital penetration, alleged to have occurred on February 24, 2015, and for the April 6, 2015 sexual assault of Elaine by oral contact, both of which occurred when she was younger than seventeen. See Tex. Penal Code Ann. § 22.011(a)(2). He was also indicted in three counts for the March 29, 2015 delivery of marijuana to Mary, Elaine, and Christy, who were all younger than eighteen at the time. See Tex. Health & Safety Code Ann. § 481.122(a)(1).


The trial court’s implicit finding that defendant’s <mask> on AB caused physical injury requiring medical treatment was not clearly erroneous. Although Parkin-Joseph testified that such an infection is not abnormal for “little girls” and not necessarily indicative of sexual abuse, the presence of the infection could be evidence of an assault. On the basis of this testimony, coupled with the temporal closeness of the sexual assault and infection, the trial court did not clearly err in finding that the sexual assault caused the infection. Accordingly, the trial court properly assessed 10 points for OV 3. See McDonald, 293 Mich App at 298 (affirming the trial court’s assessment of 10 points for OV 3 because the evidence “established that the victim suffered an infection as a consequence of the rape.” ).


affidavit had been executed by the defendant more than 45 days before the filing of the notice of appeal and, Neb. Ct. R. App. P. § 2-101(B)(4) (rev. 2015), in effect at the relevant time period, stated: The clerk of the district court shall within 2 business days of receipt of a notice of appeal send the following items to the Clerk of the Supreme Court: .... (4) [A] copy of the application to proceed in forma pauperis and accompanying poverty affidavit which has been executed no more than 45 days prior to the filing of notice of appeal[.] II. BACKGROUND Brandon L. Blake presents a new direct appeal from his plea-based conviction and his sentence for attempted <mask> in case No. CR 19-527. Blake’s appellate counsel is different from his trial counsel. 1. Postconviction Proceedings In pro se motions filed February 11, 2020, Blake alleged his plea in case No. CR 19-527 was the result of ineffective assist ance, that counsel was ineffective in failing to present mitigat- ing evidence at sentencing relating to Blake’s mental health, and that his attorney denied him his right to effective assistance of counsel by refusing his request to file a direct appeal. He asked for appointment of counsel. The State summarized these allegations as presenting two claims: whether counsel was ineffective for failing to uncover and present evidence of Blake’s mental health and whether counsel denied Blake his right to a direct appeal. The State argued that the trial record affirmatively showed trial counsel was not ineffective on the first claim but that it was insufficient to determine the second claim. Following a hearing, the court ordered, on June 12, 2020, that counsel be appointed for Blake with respect to his claim that he was deprived of his direct appeal. The court scheduled - 774 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BLAKE Cite as 310 Neb. 769


Hoover does not object to questions by the investigators about the initial group text from Gilleon that mentioned the <mask> investigation. Although this was clearly a "communication between client and lawyer" ( § 954 ), it was presumably not "confidential" because Hoover knew it was shared with a number of other individuals. (See § 952 [communication is made "in confidence" if transmitted "by a means which, so far as the client is aware, discloses the information to no third persons ...."].) She instead focuses on the investigators' inquiries regarding her subsequent phone call to Gilleon.


In Holt v Sarver (309 F Supp 362, affd 442d 304), relied upon by the defendants, the Federal court had in fact found an Eighth Amendment violation by the Arkansas penal system based upon evidence that prisoners were tortured by guards, required to perform jobs so onerous that some preferred solitary confinement, were murdered, often blackmailed by prisoner-guards, and in general severely mistreated. While homosexual <mask> was a factor, it was by no means the only one, in the court’s decision.


The first prong is subjective; it requires a determination of whether the defendant had the requisite belief that deadly force was necessary to avert death, serious bodily injury, kidnapping, <mask>, or forcible sodomy. The factfinder is required to place itself in the shoes of the defendant, determine the point of view which the defendant had at the time of the incident, and "view the conduct of the [victim] with all its pertinent sidelights as the [defendant] was warranted in viewing it." State v. Janes, 121 Wash.2d 220, 238, 850 P.2d 495, 504 (1993) (quoting State v. Tribett, 74 Wash. 125, 130, 132 P. 875 (1913)). Evaluating the evidence from a subjective point of view ensures that the factfinder "fully understands the totality of the defendant's actions from the defendant's own perspective." Id. at 239, 850 P.2d at 505.


For example, in Apodaca v. People (Colo. 1985) 712 P.2d 467 ( Apodaca ), the trial court refused to rule in advance of the defendant's testimony on whether the defendant's prior military conviction for <mask> was unconstitutionally obtained and therefore inadmissible for impeachment purposes. ( Apodaca , at p. 469,.) The defendant presented two witnesses but did not testify in his own defense. ( Apodaca , at p. 470.) Because Luce involved only a federal rule of procedure and not a constitutional issue, the Apodaca court found the Luce rule barring appellate review "neither compelling nor applicable" when the defendant raises "an issue of constitutional dimension-that is, whether the trial court's refusal to rule on the defendant's motion to prohibit prosecutorial use of prior conviction evidence until such time as the prosecution actually sought to impeach the defendant constituted an impermissible burden on the defendant's constitutional right to testify in his own defense." ( Apodaca , at p. 473, fn. 9.)


A state police lab sent vaginal swabs from a <mask> victim to Cellmark Diagnostics Laboratory (Cellmark); Cellmark sent back a DNA profile. ( Williams v. Illinois , supra, 567 U.S. at p. 59, 132 S.Ct. 2221.) Earlier (as a technician ultimately testified), she had personally developed a DNA profile from the defendant's blood and entered it into a state database. ( Id . at pp. 59, 123, 132 S.Ct. 2221.)


The jury was instructed as to the elements of <mask> (count 2) and forcible oral copulation (count 3) in concert pursuant to CALCRIM Nos. 1000, 1001, 1015 and 1016. In addition, the jurors were instructed concerning the section 667.61, subdivision (d)(2) kidnapping qualifying circumstance in compliance with CALCRIM No. 3179 : "If you find the defendant guilty of the crimes charged in Counts 2 and/or 3, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant kidnapped Diane [ ]. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] To decide whether the defendant kidnapped Diane [ ] please refer to the separate instructions that I have given you on kidnapping. You must apply those instructions when you decide whether the People have proved this additional allegation. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."


Gerard E. Delaney, J. The defendant has been indicted for the crimes of <mask> in the first degree (Penal Law, § 130.35), sexual abuse in the first degree (Penal Law, § 130.65) and criminal possession of a weapon in the fourth degree (Penal Law, § 265.01). He seeks omnibus relief, inter alia, suppression of identification testimony. It is the decision of this court that under Manson v Brathwaite (432 US 98), Neil v Biggers (409 US 188) and recent New York case law (infra), an improper "civilian” identification process, conducted by nonlaw enforcement personnel may, in a proper case, constitute a "grounds” for *172suppression of such evidence under CPL 710.20 (subd 5) and 710.60.


It seems to this court a matter of how far the rule should be extended. So far, it has been extended by the Court of Appeals only to crimes included in the <mask> itself. It could be that further extension will be mandated. Lacking appellate determination and direction, however, this court will not so far extend it for the reasons stated.


On August 20, 2014 Dr. Allee concluded her investigation and issued her summary administrative review. Dr. Allee observed, "Although the complainant did not recall many of the events from approximately 2 am until 3:30 or 4 am, she stated that she had spoken to [Emily, Sarah, and Andrew] to help reconstruct that time." Dr. Allee noted Jane reported "there was a long-haired person always near me with a USC shirt," and Dr. Allee inferred that person was John because the elevator camera footage showed he "had long hair and was wearing a cardinal-colored USC t-shirt and khaki shorts." As part of the investigation, Dr. Allee considered the witness statements, the two photographs of John's clothing, records of Jane's phone calls and text messages, Jane's photographs of her apartment, elevator security camera footage,20 the DPS and LAPD reports, and the verification of services letter from the <mask> treatment center. Dr. Allee summarized the witness statements and found John violated the student conduct code.


The language of the statute under which the second count of the indictment was framed, is as follows: “ Every person who shall be convicted of an assault with the intent to commit any robbery, burglary, <mask>, manslaughter, or any other offense, punishment for which assault is not hereinbefore prescribed, shall be punished by imprisonment in a State prison for a term not exceeding five years, or in a county jail not exceeding one year, or by a fine, not exceeding $500, or by both such fine and imprisonment.” (2 R. S., 666, § 39; 3 id. [6th ed.], 938, § 49.) We think that under this statute the offense was sufficiently charged in the second count of the indictment.


With regard to the alleged problem of fabricated complaints, there is no evidence to suggest that this either will or will not occur. However, it is clear that in light of the social stigma associated with <mask> most women, even wives, would not wish to be publicly identified as a rape victim. “The one thing that has not happened, and which I stressed in my testimony to (the California) Senate Judiciary Committee, is that embittered and vengeful wives are not rushing to their District Attorney to falsely claim rape in order to gain leverage on their husbands in a divorce. Victims are very reluctant to report the crime.” (Letter from Peter F. Sandrock, Jr., District Attorney, Benton County, Ore, to The Women’s History Research Center, Berkeley, Cal [July 7, 1980].)


Finally, plaintiff has offered to prove her contention that employees of defendant DePaul acted in concert to "cover up” her disclosures of <mask> in the Churchville home. However, in view of the fact that plaintiff has come forth with no evidence of any rape, the alleged improprieties in defendant’s handling of patient records would not rise to the level of creating a substantial and specific danger to the public health or safety.


The information also alleged numerous sentencing enhancements against appellants. Enhancement allegations arising from the sexual assault and robbery included those against Chioma for inflicting great bodily injury on Reynolds (§ 667.61, subd. (d)(6) ), against Edwards for Chioma's infliction of great bodily injury on Reynolds in the course of Edwards's violation of section 288a, subdivision (d) (in-concert oral copulation with force and fear) (§ 667.61, subds. (e)(7) and (d)(6) ), and against both Chioma and Edwards for personal use of a firearm (§§ 667.61, subd. (e)(3), 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (b), and 12022.53, subd. (g) ). If found true by the jury, these enhancements would mandate that appellants each serve a sentence of at least 25 years to life on count 1 (forced oral copulation in concert), count 3 (forcible <mask> in concert), and count 4 (forcible rape in concert). (§ 667.61, subds. (c)(3) & (c)(7).)


Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges. PER CURIAM: Ronald Brouillard pled guilty to child pornography offenses involving the <mask> and molestation of his granddaughter, begin- ning when she was two years old, and the possession of 19 videos and more than 1,500 images that depicted child pornography. The investigation also revealed that Brouillard had molested his step- great-niece, who was eight years old. For this horrifying conduct, the district court sentenced Brouillard to a total of 960 months in prison, which was the sentence recommended by the Sentencing Guidelines. 1 Brouillard appeals his sentence on the ground that it is sub- stantively unreasonable. He contends that the district court failed to adequately consider various mitigating factors, including his re- morse, abusive parents, stable employment, acceptance of respon- sibility, old age (72 at sentencing), poor health, and low risk of re- cidivism. We review the reasonableness of a sentence under a defer- ential abuse-of-discretion standard. United States v. Brown, 772


*469I am informed by counsel for defendant that provision of an adequate police force in its various projects would have been an excessively heavy economic burden. My response to that argument is that it is high time that they assumed that burden. What system of mathematics can we use to balance financial limitations with the tortures suffered by this young soul during her half-hour ordeal ? How can we equate a dollars and cents philosophy with the physical agonies suffered by her until a merciful death extinguished all pain in this defiled and broken body? Notice there was here in overwhelming measure. The number of recorded crimes in this one project brought to this court’s attention reveal it as a lawless jungle, a paradise for criminals. Most startling of all, it is an acknowledged fact that one-half hour before the incident involving the Bass girl, another child, seven years of age, residing in the same building, just barely avoided a similar fate. Defendant takes no issue with these statistics, does not deny that it was the recipient of notice of these conditions in embarrassing abundance. It takes refuge in what it considers settled law — that exposure of defenseless and innocent occupants in these projects to these hazards is a necessary concomitant to life in a housing project and that their potection is beyond its province and no part of its obligations. There was no question here whether there would be a robbery or a <mask> or an assault, or any other crime against person or property on an almost daily basis. The only question was who would be the next target.


Eugene L. Nicandri, J. Before the court is an application by counsel for the parents of Katherine Hawelka for leave to make an oral statement at the time of sentencing of the defendant. She was killed in the course of an attempted <mask>. On August 13, 1987 the defendant entered a plea of guilty to murder in the second degree and is scheduled for sentencing on September 11, 1987. The defendant’s plea of guilty to murder in the second degree was entered without any promise or commitment as to what his *624sentence would be. A presentence investigation was ordered at the time of his plea.


No doubt, the jurors impliedly found that the movement of Diane increased the risk of harm to her. As noted, the jurors were instructed on the charge of kidnapping for the purpose of <mask> or oral copulation pursuant to CALCRIM No. 1203. The jurors were instructed, "The movement must have increased the risk of physical or psychological harm to that person beyond that necessarily present in the *557rape or oral copulation." As instructed, in order to convict defendant of aggravated kidnapping within the meaning of section 209, subdivision (b)(1), the jurors were required to find the movement increased the risk of harm to Diane. As we have noted, after January 1, 1998, an increase in the risk of harm was an essential element of section 209 subdivision (b)(1) aggravated kidnapping. Thus, the jury impliedly found that there was an increase in the risk of harm because of the lengthy asportation that occurred in our case. (People v. Mincey (1992) 2 Cal.4th 408, 438, 6 Cal.Rptr.2d 822, 827 P.2d 388 ["[A] trial court's failure to instruct on a lesser included offense is not prejudicial if, as here, the jury necessarily resolved the factual question adversely to the defendant under other instructions."]; People v. Stankewitz (1990) 51 Cal.3d 72, 99, 270 Cal.Rptr. 817, 793 P.2d 23 ["By finding the firearm-use allegation to be true, the jury impliedly found that defendant was a direct participant, or, at a minimum, that he aided the robbery with the requisite intent."].) Thus, the sole prejudicial error issue that remains relates to the "substantial" increase in the risk of harm element in section 667.61, subdivision (d)(2). While deciding the aggravated kidnapping charge in count 4, the jurors impliedly found that there had been an increase in risk of harm during the lengthy asportation.


“The Grand Jury of the County of Kings by this indictment, accuses the defendant of the crime of Predatory Sexual Assault [Penal Law § 130.95 (2)] committed as follows: “The defendant, on or about May 14, 2011, in the County of Kings, committed the crime of <mask> in the First Degree and engaged in conduct constituting Criminal Sexual Act in the First Degree, namely: contact between the penis of the defendant and the mouth of [M.B.].” Courts have long recognized that the indictment as a document “has traditionally served several purposes .... First . . . an indictment [is] considered . . . the necessary method of providing the defendant with fair notice of the accusations made against him [in order to allow him] to prepare a defense.” (People v Iannone, 45 NY2d 589, 594 [1978].) Second, the indictment “provides some means of ensuring that the crime for which the defendant is brought to trial is [the] one for which he was indicted by the Grand Jury [and not] some alternative seized upon by the prosecution [based upon] subsequently discovered evidence” (id.). Third, the indictment specifies the crime or crimes for which the defendant has been tried so as to avoid any issue of double jeopardy (id. at 595; see also People v Spann, 56 NY2d 469 [1982]; People v Martinez, 52 AD3d 68 [1st Dept 2008], lv denied 11 NY3d 791 [2008]).


For instance, if one engaged in the commission of a burglary should lull another, even without design to effect death, the crime would undoubtedly come under this subdivision and would be murder in the first degree. So if the prisoner, while engaged in the commission of this <mask>, had strangled some person other than the girl in order to prevent that person’s interference, and had thus killed such person without design to effect death, the crime would have come within this same subdivision.


In any event, no expert, no matter how qualified, would be permitted to conclusively evaluate the complainant’s mental state at trial. Expert testimony informs but does not preempt the jury’s evaluation of the evidence. (See, e.g., People v Cratsley, 86 NY2d 81 [1995] [expert testimony is not required to prove mental incapacity of <mask> victim].) Expert testimony before this court would be superfluous because the evaluation of witness credibility is the sole province of the trier of fact. In this case, the jury was denied opportunity to make this judgment.