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03/07/2025 09:12 AM CST
- 553 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
State of Nebraska, appellee, v.
Anthoney E. Swartz, appellant.
___ N.W.3d ___
Filed March 7, 2025. No. S-24-141.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is
a question of law.
5. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively determine
whether counsel did or did not provide effective assistance and whether
the defendant was or was not prejudiced by counsel’s alleged deficient
performance.
6. Rules of Evidence: Sexual Assault: Other Acts. Neb. Rev. Stat.
§ 27-414 (Reissue 2016) allows evidence of prior offenses of sexual
assault to prove propensity.
7. ____: ____: ____. Pursuant to Neb. Rev. Stat. § 27-414(1) (Reissue
2016), evidence of the accused’s prior commission of another offense of
sexual assault is admissible at trial if there is clear and convincing evidence that the accused committed the other offense. Section 27-414(3)
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
requires a hearing outside the presence of the jury before the court
admits such evidence.
8. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
9. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), the defendant must
show that his or her counsel’s performance was deficient and that this
deficient performance actually prejudiced the defendant’s defense.
10. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough particularity for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
11. Rules of Evidence: Hearsay: Records. Neb. Rev. Stat. § 27-803
(Reissue 2016) of the rules of evidence provides that business records
as defined in statute are not excluded by the hearsay rule.
12. Rules of Evidence: Hearsay. Neb. Rev. Stat. § 27-803(3) (Reissue
2016) provides that the hearsay rule does not exclude statements made
for purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar
as reasonably pertinent to diagnosis or treatment.
13. ____: ____. Whether a statement was both taken and given in contemplation of medical diagnosis or treatment is a factual finding made by
the trial court in determining the admissibility of the evidence under
Neb. Rev. Stat. § 27-803(3) (Reissue 2016).
Appeal from the District Court for Hamilton County, Rachel
A. Daugherty, Judge. Affirmed.
Chad Wythers, of Wythers Law, for appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Anthoney E. Swartz was convicted by a jury of first degree
sexual assault and false imprisonment, and he appeals his convictions. At issue in this appeal are whether the district court
for Hamilton County abused its discretion when it admitted
testimony of a survivor of Swartz’ prior sexual assault conviction and whether Swartz received ineffective assistance of
counsel for his trial counsel’s failure to object to the admission of a sexual assault intake form created by a sexual assault
nurse examiner (SANE). We affirm.
II. STATEMENT OF FACTS
On January 17, 2023, Swartz was charged by information
with (1) sexual assault in the first degree (second or subsequent
offense) and (2) false imprisonment.
Swartz’ charges arose out of an incident after a Fourth of
July party at the home of Swartz’ then-fiance. Evidence at trial
showed that 17-year-old A.S. was the cousin of Swartz’ fiance
and stayed at the home overnight. A.S. woke up with Swartz,
who was “really drunk and was just trying to take [her] clothes
off,” on top of her, pinning her down. A.S.’ verbal and physical resistance was unsuccessful. Swartz ultimately vaginally
penetrated A.S. with his penis.
1. Evidence of Prior
Sexual Assault Conviction
Pursuant to Neb. Rev. Stat. § 27-414 (Reissue 2016), the
State filed a notice of intent to offer evidence of Swartz’ prior
sexual assault conviction. Swartz had been convicted in 2018
in Hall County District Court, in a case docketed as case
No. CR17-659, of first degree sexual assault for engaging in
a sexual relationship with his then-13-year-old “girlfriend,”
M.Z., when Swartz was 19 years old.
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
At a pretrial hearing, the court heard the testimony of M.Z.
and received a certified copy of the plea and sentencing from
that prior criminal case. The factual basis for the plea stated,
in relevant part:
On April 25, 2017, [a deputy] with the Hall County
Sheriff’s Department received a report that a 13-year-old
female juvenile with the initials M.Z. was eleven weeks
pregnant, and she had named [Swartz] as the father of that
unborn baby.
[Swartz’] date of birth is [in March 1997], which would
make him 20 years of age on the date of the report and
19 years of age on the date that the baby was conceived.
M.Z.’s date of birth is . . . 2003, making her 13 years of
age on both the date of conception and the report.
M.Z. was interviewed on April 28th of [2017]. She
indicated that she was in a relationship and pregnant
with [Swartz’] baby. . . . She indicated that they had
sexual intercourse approximately ten times during the
period of time ranging from late January 2017 to early
March 2017.
M.Z. stated that [Swartz] knew she was pregnant and
that he had purchased her a pregnancy test. She further
indicated that [Swartz] was the only person she’d had
sexual intercourse with after the 1st of January, 2017,
making him the only possible father of the unborn baby.
Immediately prior to [Swartz’] being arrested on April
28th of [2017], [the deputy] made contact with [Swartz]
at his place of employment. He informed [Swartz] that
he was going to arrest him, so [Swartz] needed to try
to find somebody to take over the store where [Swartz]
was working. The deputy was standing by while [Swartz]
made a phone call. The deputy heard [Swartz] tell the
person on the other end of the phone that he was at a
drunken party and the girl lied about her age, and that it
was a statutory rape situation.
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
However, [the deputy] had investigated in early March
2017 regarding [Swartz’] possibly having sexual intercourse with M.Z., and he’d interviewed [Swartz]. During
that investigation, [Swartz] had never indicated to the
deputy that M.Z. had lied about her age or made any
mention of a drunken party during his interview.
[Swartz] had told the deputy during the interview that
he had checked the law and there was nothing illegal
about a 19-year-old hanging out with a 13-year old.
Based upon the information presented to the court at the
pretrial hearing, the court tentatively granted the State’s
§ 27-414 motion to admit the testimony of the prior sexual
assault victim subject to the court’s hearing the trial testimony
of the current victim, A.S. The court found clear and convincing evidence that the prior allegations of sexual contact had
occurred due to Swartz’ plea and conviction, found that the
incidents were not too remote in time to exclude evidence
of the prior sexual assault, and briefly analyzed similarities
between the prior offense and the current offense. In its preliminary ruling, the court noted the similar age of the victims
(13 and 17); noted that the sexual contact occurred at another
person’s home where the participants were consuming alcohol; and noted that Swartz forcibly removed the clothing of
each girl.
The court reserved ruling on Swartz’ motion in limine that
requested the court to prevent the State from introducing evidence of his prior sexual assault conviction.
At trial, after A.S. testified, the State sought under § 27-414
to introduce evidence of Swartz’ prior sexual assault conviction. After hearing the testimony, the court found that there
were similarities between the alleged sexual assault of A.S. and
the prior assault of M.Z. and admitted the testimony of M.Z.
under § 27-414. The court admitted both the live testimony of
M.Z. at trial and a certified copy of the prior first degree sexual
assault conviction against Swartz.
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
After the State’s § 27-414 motion was granted, Swartz’ prior
sexual assault victim M.Z. testified similarly to her testimony
at the § 27-414 hearing. She told the jury she met Swartz
through mutual friends at the end of 2016 when she was 13
years old and he was 19 years old. She testified that she had
sexual intercourse with Swartz five times, but that it was never
willingly. She testified that her first sexual encounter with
Swartz occurred when she was at a friend’s house and was
so highly intoxicated that she does not fully remember it, but
she woke up at Swartz’ sister’s house and did not have all her
clothes on. She explained that when she did not want to have
sex, she told him she did not feel comfortable or it was not the
time or place and not right, but he would tell her he did not
care and was going to get what he wanted from her.
2. SANE Report
Deena Schaeffer, a registered nurse and trained SANE, testified that she examined A.S. on July 5, 2021, and completed
a form titled “Adolescent/Adult Forensic Medical Examination
Form” (the SANE report). Schaeffer testified that the role of
a SANE nurse is primarily medical to ensure patients receive
any care they need and secondarily to collect evidence from
the patients, and she explained the process she does for a sexual assault examination. She testified she collects the patient’s
demographics and medical history, then asks for a description
of the assault if the patient is willing to provide it, as well as
sexual history prior to the assault and details for postassault
actions the patient engaged in. Schaeffer explained that the
form asks about the assailant’s identity, for corroboration purposes if DNA evidence matches a suspect’s name, but also for
medical purposes, such as to inquire about the patient’s awareness of whether the suspect is known to have any sexually
transmitted infections or drug use via needles that would lead
to possible testing and treatment for those conditions. Schaeffer
testified that she prepared the SANE report during A.S.’ sexual
assault examination, which included her observations of A.S.
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
and recorded the information A.S. provided. She testified that
she further took photographs of A.S. and collected physical
evidence to turn over to law enforcement.
The SANE report was received into evidence without objection from Swartz’ trial counsel. Although the State argued several theories of the report’s admissibility, the trial court did not
explain its decision on the record. In a pretrial ruling, the court
had preliminarily ruled that the report was admissible under
Neb. Rev. Stat. § 27-803(4) (Reissue 2016) (statements made
for purposes of medical diagnosis or treatment).
3. A.S.’ Trial Testimony
A jury trial was held November 13 to 15, 2023. Both the
State and Swartz presented witnesses regarding the investigation and the incident.
A.S. testified that she knew Swartz because he was engaged
to her cousin, but before the incident had met him only four
to five times. She stated that on July 4, 2021, A.S.’ aunt took
her to a Fourth of July party at the cousin and Swartz’ house.
She explained she “stuck to” either her aunt’s or her cousin’s
side all night because she did not know anyone else there. She
stated she wore a black bodysuit with a swimsuit underneath,
shorts, and sneakers.
A.S. testified that during the party, the only time she followed Swartz around was to help him carry fireworks. She
explained that at one point, Swartz wrapped his leg around her
and tripped her, but that she did not touch him at any point
during the night. She stated he made inappropriate sexual comments toward her and her aunt that made her uncomfortable,
specifically telling her that he was going to rape her, but “then
he laughed it off,” so she thought he was joking.
A.S. testified that her aunt left around 11 p.m. but that A.S.
did not leave at that time, because her cousin asked her to stay
the night and agreed to take A.S. home the next day. A.S. stated
she saw Swartz drinking a lot that night, saying that he always
had a drink in his hand and that his speech made him seem
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
impaired, and she stated that she also had one alcoholic drink
around 7 p.m. that her cousin gave her but drank water the rest
of the night.
A.S. testified that the fireworks got over around 1 a.m. and
that all of those present then returned inside and got ready for
bed. A.S. was asked to sleep on a couch. She identified the
layout of the house, including where her cousin and Swartz’
room was in relation to the couch in the living room, where
she slept.
A.S. took her shorts off and slept in her swimsuit bottoms
and a t-shirt. She was asleep for about an hour before she
woke up to Swartz on top of her. She testified that Swartz was
touching her inappropriately and trying to take her swimsuit
bottoms off. She told him no and tried to tell him to stop and
push him off, but she was unable to get away, because his legs
and lower body pinned her down. He covered her mouth, told
her to “‘just let it happen,’” and told her he had been waiting
to “do that” for as long as he had known her. He removed her
swimsuit bottoms and penetrated her vagina with his penis.
She testified that she was not sure how long he was on top of
her with his penis inside of her but that after he took his penis
out, he got up and stood near the kitchen and watched her as
she lay on the couch and cried until she fell back asleep.
A.S. testified that she woke up around 11 a.m. the next day
and got her cousin to take her home. She testified that she told
her cousin on the ride home what Swartz had done to her, but
that the cousin got upset with her and did not believe her, so
she texted a friend and told her. A.S.’ grandmother took her to
a hospital, where she had the sexual assault examination done
by Schaeffer.
4. Convictions and Sentencing
The jury found Swartz guilty of first degree sexual assault
and false imprisonment. The district court accepted the jury’s
verdicts, entered Swartz’ convictions, ordered a presentence
investigation, and set the matter for sentencing.
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
With respect to the first degree sexual assault, the court
sentenced Swartz to a term of imprisonment for a mandatory
minimum period of not less than 25 years and not more than
30 years. With respect to the false imprisonment conviction,
the court sentenced Swartz to a period of not less than 3 years
and not more than 3 years. The court ordered that the sentences
be served concurrently.
Swartz appeals.
III. ASSIGNMENTS OF ERROR
Swartz assigns, restated, that (1) the district court abused its
discretion when it admitted evidence of Swartz’ prior conviction for sexual assault and (2) he received ineffective assist
ance of trial counsel because his counsel did not object to the
admission of the SANE report.
IV. STANDARDS OF REVIEW
[1,2] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules;
judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Valverde,
286 Neb. 280,
835 N.W.2d 732 (2013). Where the Nebraska
Evidence Rules commit the evidentiary question at issue to
the discretion of the trial court, an appellate court reviews the
admissibility of evidence for an abuse of discretion.
Id.
[3] An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason, and evidence. State v. Barnes,
317 Neb. 517, 10 N.W.3d
716 (2024).
[4,5] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question
of law. State v. Rezac, ante p. 352, 15 N.W.3d 705 (2025).
In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance.
Id.
V. ANALYSIS
1. The District Court Did Not Abuse Its Discretion
When It Admitted Evidence of Swartz’
Prior Sexual Assault Conviction
Swartz’ first assignment of error concerns the admission
of evidence of his prior conviction for sexual assault. Prior
to trial, the State sought to introduce, pursuant to § 27-414,
evidence of Swartz’ 2018 conviction for sexual assault involving M.Z. The court held a pretrial hearing at which it heard
the testimony of M.Z. and received a certified copy of the
plea, conviction, and sentencing from that prior criminal case.
Swartz contended at trial and now asserts in his appeal that
there were not sufficient similarities between the prior statutory sexual assault of M.Z. and the sexual assault of A.S. to
permit admission of evidence of the prior assault. He notes
that in the prior incident of statutory sexual assault, the victim, M.Z., was 13 years old and he was 19 years old, but
he characterizes the acts as having occurred in a consensual
relationship. Thus, he asserts that this prior conduct was not
probative of whether he committed the nonconsensual sexual
assault charged in this case. The district court reserved ruling
on the § 27-414 motion and, after hearing A.S.’ testimony at
trial, overruled Swartz’ objection to the § 27-414 evidence and
admitted the testimony of M.Z. at trial. We find no abuse of
discretion and reject this assignment of error.
[6,7] Section 27-414 allows evidence of prior offenses of
sexual assault to prove propensity. State v. Valverde, 286 Neb.
280,
835 N.W.2d 732 (2013). Pursuant to § 27-414(1), evidence of the accused’s prior commission of another offense
of sexual assault is admissible at trial if there is clear and
convincing evidence that the accused committed the other
offense. Section 27-414(3) requires a hearing outside the
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
presence of the jury before the court admits such evidence.
According to the statute, at the hearing,
the rules of evidence shall apply and the court shall apply
a section 27-403 balancing and admit the evidence unless
the risk of prejudice substantially outweighs the probative value of the evidence. In assessing the balancing,
the court may consider any relevant factor such as (a) the
probability that the other offense occurred, (b) the proximity in time and intervening circumstances of the other
offenses, and (c) the similarity of the other acts to the
crime charged.
§ 27-414(3).
At the § 27-414 hearing, as we have recited above, M.Z.
testified that she was 13 years old when she met Swartz and
he was 19 years old. She testified that she had told Swartz
about her age and that she and Swartz had sexual intercourse
on more than one occasion. The first incident occurred when
she was babysitting Swartz’ nephews. According to M.Z.,
Swartz was heavily intoxicated and attempted to have intercourse with M.Z. in front of the children. She pushed him
away and told him no, but Swartz physically removed her
clothes and penetrated her with his “genitalia.” She testified
that although she told him no, Swartz told her that “boys were
gonna be boys.” She further testified to another incident of his
removing her clothes and assaulting her over her resistance,
and to other occasions where she did not resist because she
thought it was futile.
Following the testimony of M.Z., the trial court balanced
the considerations set forth in Neb. Rev. Stat. § 27-403
(Reissue 2016) as to whether the risk of prejudice would substantially outweigh the probative value of the evidence of the
conviction pertaining to M.Z. The court ruled that propensity
evidence “has undisputable probative value” but that according to the federal courts analyzing such cases,
[The] value in a given case will depend on innumerable
considerations, including the similarity of the prior acts
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
to the acts charged, the closeness in time of the prior acts
to the acts charged, the frequency of the prior acts, the
presence or lack of intervening events, and the need for
evidence beyond the testimony of the defendant and the
alleged victim.
Accord State v. Kirbee, 284 Neb. 72,
815 N.W.2d 872 (2012),
citing U.S. v. Guardia,
135 F.3d 1326 (10th Cir. 1998).
In both its written order and its ruling from the bench,
the court analyzed the statutory factors set forth above. See
§ 27-414(3). As to probability that the prior sexual assault
occurred, the court found clear and convincing evidence that
the other assault occurred, in part because Swartz entered
a plea and was found guilty of first degree sexual assault.
Reviewing the proximity in time and intervening circumstances
between the two assaults, the court concluded that the time
lapse of approximately 4 years was not remote.
The district court also noted additional similarities based on
the evidence and stated on the record:
Both victims at the time of the alleged incidents were
of a similar age. [M.Z.] testified that she was 13 years
old, [A.S.] testified that she was 17 years old. While she
was over the age, the statutory age, she is still a minor,
still of a young age.
Some of the alleged incidents both with [M.Z.] and
the alleged incident with [A.S.] occurred at another person’s home during a party at which the participants were
consuming alcohol, including [Swartz] and the under age
[sic] victim. In each case, [M.Z.] was provided alcohol
as was [A.S.] by the adults who were there, including
[Swartz] being one of those adults present.
Both [M.Z.] and [A.S.] testified that [Swartz] used
force and forcibly removed the clothes of each. Each
described incidents where intercourse happened but others were present in the home, including minor children.
Each described that [Swartz] physically removed her
clothing. Each described incidents of penile genitalia
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
— penile/vaginal penetration but the sex was against
her will, that there was restraint and that the victims —
alleged victims pushed — attempted to push [Swartz]
away, and at times that the fighting was futile.
The Court would further note the age difference
between [Swartz] and each victim is very similar. He was
19 when the first victim [was] 13, an age difference of
six years. Here it appears he was approximately 24 and
the alleged victim 17, a difference of seven years.
After the court conducted the balancing test required by
§ 27-403 and considered the factors in § 27-414(3), it concluded that the probative value of Swartz’ prior sexual assault
on M.Z. was not outweighed by the danger of unfair prejudice.
It determined that the evidence of Swartz’ prior sexual assault
conviction was admissible at trial over Swartz’ objection.
Based on our review of the record, we do not believe that
the district court abused its discretion when it concluded that
the evidence of the prior sexual assault conviction was admissible under § 27-414(3). The trial court’s rulings noted the
numerous similarities between the assaults, including the ages
of the victims, the age gap between the victims and Swartz,
the use of force and removal of the victims’ clothes, the presence of alcohol supplied to the victims by adults, and other
qualitative similarities between the sexual assaults. We agree
with the district court that after balancing the relevant factors,
the probative value of Swartz’ prior sexual assault conviction
was not outweighed by the danger of unfair prejudice. We
determine that the district court did not abuse its discretion
when it admitted evidence of Swartz’ prior sexual assault
against M.Z. We reject this assignment of error.
2. Swartz Was Not Denied Effective Assistance
of Counsel With Respect to Admission of
the SANE Sexual Assault Intake Form
Swartz assigns, restated, that his trial counsel was ineffective under the test articulated in Strickland v. Washington, 466
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. SWARTZ
Cite as 318 Neb. 553
U.
S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), for failing
to object to the admission of the SANE report. He contends
that the SANE report contained inadmissible evidence and that
he was prejudiced as a result of counsel’s failure to object. We
reject this assignment of error.
(a) Ineffective Assistance of
Counsel Under Strickland
[8] Swartz is represented by new counsel in this direct
appeal. When a defendant’s trial counsel is different from his
or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective perform
ance which is known to the defendant or is apparent from the
record; otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. State v. Rezac, ante p.
352, 15 N.W.3d 705 (2025).
[9] Generally, to prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, supra, the defend
ant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced
the defendant’s defense. State v. Dat, ante p. 311, 15 N.W.3d
410 (2025). To show that counsel’s performance was deficient,
a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
Id. To show prejudice in a claim of ineffective assist
ance of counsel, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
Id.
[10] An ineffective assistance of counsel claim is raised on
direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make a
determination of whether the claim can be decided upon the
trial record and (2) a district court later reviewing a petition
for postconviction relief to recognize whether the claim was
brought before the appellate court.
Id.
Once raised, an appellate court will determine whether
the record on appeal is sufficient to review the merits of the
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STATE V. SWARTZ
Cite as 318 Neb. 553
ineffective performance claims.
Id. The record is sufficient if
it establishes either that trial counsel’s performance was not
deficient, that the appellant will not be able to establish prejudice as a matter of law, or that trial counsel’s actions could not
be justified as a part of any plausible trial strategy.
Id.
Swartz contends that his trial counsel’s failure to object to
the admission of the SANE report prejudiced him, asserting
that without the SANE report, his conviction “would have
been improbable.” Brief for appellant at 19. He argues that
the exhibit was inadmissible hearsay under § 27-803. In this
regard, Swartz essentially asserts that because the SANE report
document itself is hearsay and the content of the report contains hearsay statements by A.S., the SANE report was inadmissible as double hearsay. We reject these assertions.
“Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.”
Neb. Rev. Stat.
§ 27-801(3) (Cum. Supp. 2024). Hearsay is not admissible at
trial except as provided by the Nebraska Evidence Rules. See
Neb. Rev. Stat. § 27-802 (Reissue 2016). “Hearsay included
within hearsay is not excluded under the hearsay rule if each
part of the combined statements conforms with an exception
to the hearsay rule provided in these rules.”
Neb. Rev. Stat.
§ 27-805 (Reissue 2016). When an out-of-court statement
relates the content of another out-of-court statement, there
must be an independent hearsay exception for each statement.
State v. Stricklin,
290 Neb. 542,
861 N.W.2d 367 (2015).
(b) Business Records
[11] We first turn to the material recorded by Schaeffer in
the SANE report, which material Swartz asserts is inadmissible
hearsay. Under § 27-803 of the rules of evidence, we have
observed that routine recordkeeping, essential to the conduct
of business, produces the reliability necessary for admissibility of business records. See State v. Robinson, 272 Neb. 582,
724 N.W.2d 35 (2006), abrogated on other grounds, State v.
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Thorpe,
280 Neb. 11,
783 N.W.2d 749 (2010). Section 27-803
of the rules of evidence provides that business records as
defined in statute are not excluded by the hearsay rule.
Business records are defined in statute as
[a] memorandum, report, record, or data compilation,
in any form, of acts, events, or conditions, other than
opinions or diagnoses, that was received or acquired in
the regular course of business by an entity from another
entity and has been incorporated into and kept in the
regular course of business of the receiving or acquiring
entity; that the receiving or acquiring entity typically
relies upon the accuracy of the contents of the memorandum, report, record, or data compilation; and that the
circumstances otherwise indicate the trustworthiness of
the memorandum, report, record, or data compilation, as
shown by the testimony of the custodian or other qualified witness.
§ 27-803.
In this case, Schaeffer’s testimony makes clear that the written SANE report contains factual statements, observations, and
photographs routinely incorporated in SANE reports as they
are regularly kept. The information recorded on the SANE
report is in the nature of objective intake information. Thus, the
first step of the double hearsay requirement is met with respect
to the information recorded in the SANE report prepared in the
regular course of business. The SANE report conforms to the
business records exception to the hearsay rule.
(c) Medical Treatment
Next, we turn to statements by A.S. made to Schaeffer and
included in the SANE report. Because the statements by A.S.
quoted in the SANE report were made for purposes of medical
diagnosis or treatment, they are admissible under the hearsay
exception found in § 27-803(3).
[12] Section 27-803(3) provides that the hearsay rule does
not exclude “[s]tatements made for purposes of medical
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diagnosis or treatment and describing medical history, or past
or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar
as reasonably pertinent to diagnosis or treatment.”
[13] Whether a statement was both taken and given in
contemplation of medical diagnosis or treatment is a factual
finding made by the trial court in determining the admissibility
of the evidence under § 27-803(3). State v. Jedlicka,
297 Neb.
276,
900 N.W.2d 454 (2017).
Section 27-803(3) is based on the notion that a person
seeking medical attention will give a truthful account of the
history and current status of his or her condition in order to
ensure proper treatment. State v.
Jedlicka, supra. We have
explained that the scope of the exception extends beyond the
patient-physician relationships, and we stated as follows:
Although the heart of this exception lies in statements
made by a patient to a treating physician, the exception
casts its net wider than the patient-physician relationship. Under the federal and Nebraska rules of evidence,
statements admissible under the medical diagnosis and
treatment exception are not restricted to statements made
by the patient and the statements need not be made to a
physician. . . . As a general rule, the exception applies
to persons seeking medical assistance from persons who
are expected to provide some form of health care. . . .
Thus, “[t]he declarant need not be the patient—need not
be the person who is experiencing the symptoms to be
diagnosed or treated. In other words, the statement need
not refer to the declarant’s own symptoms.”
In re Interest of B.R. et al., 270 Neb. 685, 691,
708 N.W.2d
586, 591 (2005) (citations omitted).
We are aware of the tension caused by the fact that the
statements made to a health care provider may be shared
with law enforcement. The fundamental inquiry to determine
whether statements made by a declarant who knew that information could be shared with law enforcement had a medical
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purpose is if the challenged statement has some value in diagnosis or treatment, because the patient would still have the
requisite motive for providing the type of sincere and reliable
information that is important to that diagnosis and treatment.
Id. But statements having a dual medical and investigatory
purpose are admissible under § 27-803(3) only if the proponent of the statements demonstrates that (1) the declarant’s
purpose in making the statements was to assist in the provision
of medical diagnosis or treatment and (2) the statements were
of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional. State v.
Jedlicka, supra. The
fundamental inquiry under § 27-803(3), when considering the
appropriate state of mind of the declarant, may be reasonably
inferred from the circumstances; such a determination is necessarily fact specific. See State v.
Jedlicka, supra.
Here, the State established the circumstances of the preparation of the SANE report. The SANE report prepared by
Schaeffer is included in the emergency room records and was
provided to medical providers as part of A.S.’ medical treatment. Schaeffer communicates with victims’ medical providers. A.S. detailed her injuries and recent medical history to
Schaeffer. Schaeffer testified that items such as the details of
the assault and the identity of the alleged perpetrator, included
on the form, can be relevant for medical purposes to look for
injury and because of issues involving drug use, needles, or
sexually transmitted diseases. Admittedly, on the page regarding consent for forensic examination and release of evidence,
the report disclosed that it would be required to be released to
law enforcement due to the age of A.S. The record shows that
it can be inferred that A.S. understood that the report served a
dual purpose in this case.
We are aware of a split in authority with respect to whether
a victim’s statements made to medical personnel, including
sexual assault examiners, that describe the assault and naming the assailant are made for the purpose of medical treatment and thus admissible. Many courts have found statements
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made to a SANE to be admissible. See, e.g., U.S. v. Chaco,
801 F. Supp. 2d 1200 (D.N.M. 2011); Ward v. State,
50 N.E.3d
752 (Ind. 2016); State v. Miller,
293 Kan. 535,
264 P.3d 461
(2011); State v. Harper,
770 N.W.2d 316 (Iowa 2009); State v.
Slater,
285 Conn. 162,
939 A.2d 1105 (2008); State v. Krasky,
736 N.W.2d 636 (Minn. 2007); State v. Stahl,
111 Ohio St.
3d 186,
855 N.E.2d 834 (2006); People v. Vigil,
127 P.3d 916
(Colo. 2006); Commonwealth v. DeOliveira,
447 Mass. 56,
849 N.E.2d 218 (2006); Hobgood v. State,
926 So. 2d 847
(Miss. 2006); State v. Vaught,
268 Neb. 316,
682 N.W.2d 284
(2004); Thompson v. State,
438 P.3d 373 (Okla. Crim. App.
2019); People v. Garland,
286 Mich. App. 1,
777 N.W.2d 732
(2009). In contrast, courts have excluded a SANE report, reasoning that a victim’s statements to a sexual assault examiner
were testimonial and violate the confrontation clause because
of the examiner’s relationship with police or the involvement of the police in the examination process, coupled with
the absence of any need for, or provision of, medical treatment during the examination. These cases include U.S. v.
Gardinier,
65 M.J. 60 (C.A.A.F. 2007); Hartsfield v. Com.,
277 S.W.3d 239 (Ky. 2009); State v. Cannon,
254 S.W.3d
287 (Tenn. 2008); State v. Romero,
141 N.M. 403,
156 P.3d
694 (2007); Medina v. Nevada,
122 Nev. 346,
143 P.3d 471
(2006); and People v. Vargas,
178 Cal. App. 4th 647,
100 Cal.
Rptr. 3d 578 (2009).
We previously discussed this question in State v. Jedlicka,
297 Neb. 276,
900 N.W.2d 454 (2017), which involved the
sexual assault of a child. In that case, we determined that a
video recording of a medical interview with a child performed
by an employee with a child advocacy center in the chain of
medical care was admissible and noted that despite a dual
purpose, the fundamental purpose of the statements was to
obtain medical diagnosis or treatment. We have reviewed the
record and determine that the forensic examination of A.S. in
this case, recorded in the SANE report, is analytically similar
to that in Jedlicka. We further note that because Schaeffer
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and A.S. testified and were available for cross-examination,
the concerns raised regarding adequate confrontation of witnesses have been satisfied. Based on our review of the record,
the district court did not err to the extent it found that A.S.’
statements to Schaeffer were admissible under the medical
treatment exception to the rule against hearsay.
We have determined above that the SANE report was
admissible as a business record and that the statements by
A.S. contained therein were admissible as having been made
for medical treatment. Swartz’ double hearsay challenge is
without merit. We have stated that it is not ineffective for
trial or appellate counsel to “fail” to make a meritless claim.
See State v. Jaeger,
311 Neb. 69,
970 N.W.2d 751 (2022).
Because a potential objection to the report would have been
overruled, trial counsel’s failure to object was not ineffective
assistance of counsel. Swartz’ second assignment of error is
without merit.
VI. CONCLUSION
For the reasons explained above, we reject Swartz’ assignments of error challenging the admissibility of evidence and
claiming ineffective assistance of counsel. We affirm Swartz’
convictions.
Affirmed.
