State v. Clark

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. CLARK
Cite as 315 Neb. 736
State of Nebraska, appellee, v.
Angelina M. Clark, appellant.
___ N.W.2d ___
Filed January 19, 2024. 	No. S-22-865.
1. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence, and such
matters are for the finder of fact. The relevant question for an appellate
court is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.
2. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of counsel may be determined on direct appeal is a
question of law.
3. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
4. Juror Qualifications: Waiver. A party who fails to challenge the jurors
for disqualification and passes the jurors for cause waives any objection
to their selection.
5. Criminal Law: Intent. The crime proscribed by Neb. Rev. Stat.
§ 28-311.01 (Reissue 2016) does not require an intent to execute the
threats made; rather, it requires the intent to terrorize another as a result
of the threats or a reckless disregard of the risk of causing such terror.
6. Criminal Law: Evidence: Intent. The intent with which an act is com-
mitted is a mental process and may be inferred from the words and acts
of the defendant and from the circumstances surrounding the incident.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:46 AM CDT

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. CLARK
Cite as 315 Neb. 736
7. Effectiveness of Counsel: Proof: Appeal and Error. 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.
8. Effectiveness of Counsel: Proof. 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.
9. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice in a claim of ineffective assistance of counsel, the defendant must
demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confi-
dence in the outcome.
10. Constitutional Law: Criminal Law: Jury Trials. The Sixth Amendment
secures to criminal defendants the right to be tried by an impartial jury
drawn from sources reflecting a fair cross-section of the community.
11. Equal Protection: Jurors: Discrimination. The Equal Protection
Clause of the 14th Amendment forbids prosecutors from using
peremptory challenges to strike potential jurors solely on account of
their gender.
12. Hearsay: Words and Phrases. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
13. Hearsay. An out-of-court statement is not hearsay if the proponent
offers it for a purpose other than proving the truth of the matter asserted.
14. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
15. Pretrial Procedure: Pleadings: Evidence: Juries: Appeal and Error.
A motion in limine is a procedural step to prevent prejudicial evidence
from reaching the jury. It is not the office of a motion in limine to obtain
a final ruling upon the ultimate admissibility of the evidence. Therefore,
when a court overrules a motion in limine to exclude particular evi-
dence, the movant must object when the particular evidence is offered at
trial in order to predicate error before an appellate court.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Candice C. Wooster, of Brennan, Nielsen, & Wooster Law
Offices, P.C., for appellant.

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. CLARK
Cite as 315 Neb. 736
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
I. INTRODUCTION
This is a direct appeal of convictions in the district court
for Lancaster County, Nebraska, for terroristic threats and
third degree sexual assault. The appellant argues that her trial
before an all-male jury violated her constitutional rights to a
fair trial and an impartial jury. The appellant also argues that
the evidence was insufficient to support her conviction for
terroristic threats and that her trial counsel was ineffective in
multiple regards. Finding no error, we affirm.
II. BACKGROUND
Early on the morning of January 14, 2020, Angelina M.
Clark entered the apartment where Shauna Parker and Parker’s
15-year-old son, A.L., resided. Clark knew Parker and A.L.
and had visited their apartment previously. By her own admis-
sion, Clark was “heavily intoxicated” when she entered the
apartment and during the events described below. 1
Parker testified that when Clark saw her, Clark asked,
“‘[D]o 	you 	know 	anything[?]’” 	Parker 	replied, 	“‘[N]o 	I
don’t.’” Parker explained that she understood Clark to be ask-
ing if she “knew anything about having any drugs.” However,
Parker acknowledged that Clark did not “use the word drugs.”
Parker explained that she had just understood Clark’s inquiry
that way.
Parker testified that after Clark had been in the apartment
for several minutes, Parker offered her a ride to “get her
out of [the] house.” Parker drove a pickup truck. A.L., who
1 Brief for appellant at 13.

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STATE v. CLARK
Cite as 315 Neb. 736
accompanied Parker and Clark, sat farthest right on the passen-
ger side. Clark was situated between Parker and A.L.
A.L. testified that during the drive, Clark placed her hand
on his “upper thigh” near his torso three to five times, “grop-
ing up towards [his] penis.” According to A.L., the last time
Clark did so, she touched “[his] private areas over [his] pants”
and then “slightly squeezed” before moving her hand back to
his thigh.
According to Parker, A.L. leaned away from Clark with a
“horrible look on his face.” A.L.’s expression prompted Parker
to ask the reason for his discomfort. A.L. initially declined
to answer until they dropped Clark off. However, Parker per-
sisted in her questions, and A.L. eventually disclosed that
Clark “ma[de] him uncomfortable” and that he did not “‘like
[Clark] touching [him].’” Parker and Clark then began to argue
about A.L.
Parker decided that Clark’s ride was at an end and pulled
into the parking lot of a convenience store so Clark could
get out of the truck. Parker testified that as she pulled in, she
observed Clark’s hand on A.L.’s “inner thigh.”
Parker demanded that Clark get out of the truck. Clark
initially refused, so Parker told A.L. to get out of the truck.
Parker testified that after exiting the vehicle and before going
into the convenience store, A.L. “c[a]me around the truck
and . . . said I feel violated mom. He said, ‘she touched my
dick.’” A.L. testified similarly that he came around the truck
and told Parker that he “felt very uncomfortable and . . .
needed . . . Clark to leave.” That was when Parker, by her
own admission, “lost [her] temper.”
When Clark subsequently got out of the truck and began
calling A.L.’s name, Parker “intervene[d]” to keep Clark from
following A.L. into the store. Parker acknowledged that she
initiated a “physical confrontation” with Clark by pushing or
slapping her.
According to Parker, during that confrontation, Clark got
back in the truck and “start[ed] rummaging through [it].

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STATE v. CLARK
Cite as 315 Neb. 736
Threatening thing[s] — like you know, like she’s going to
have her daughter and . . . her friends beat me up. Like every-
body was going to beat me up, you know. I was done. And
. . . she’s going to have my ass beat or whatever.” Parker
testified that Clark then grabbed what the parties variously
describe as a box cutter or utility knife from the truck’s glove
compartment and “was like bitch I’m going to kill you.”
A.L. observed the confrontation through the front door of
the convenience store. He saw Clark “swinging [the box cut-
ter] around at [Parker].” However, he was unable to hear what
Clark and Parker were saying.
Law enforcement was called. Clark left the scene before
officers arrived but was apprehended nearby. Clark was subse-
quently charged with terroristic threats under Neb. Rev. Stat.
§ 28-311.01 (Reissue 2016) and third degree sexual assault
under Neb. Rev. Stat. § 28-320(1)(a) (Reissue 2016). She pled
not guilty, and the matter proceeded to a jury trial.
Jury selection occurred on October 11, 2022. The record
does not indicate how many prospective jurors were sum-
moned. It shows only that 27 prospective jurors were “ran-
domly selected” to be seated up front. Other prospective jurors
were present. At least eight prospective jurors were female,
based on the titles used to refer to them during voir dire.
However, everyone ultimately selected to serve on the jury
was male.
The jury found Clark guilty of both counts. She was sen-
tenced to consecutive terms of 1 year’s imprisonment, with
9 months’ post-release supervision, for the terroristic threats
conviction and 6 months’ imprisonment for the sexual assault
conviction.
Clark appeals, and we moved the matter to our docket. 2
III. ASSIGNMENTS OF ERROR
Represented by different counsel on appeal, Clark assigns,
restated and reordered, that (1) the all-male jury deprived
2 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).

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STATE v. CLARK
Cite as 315 Neb. 736
her of her constitutional right to a fair trial and an impartial
jury and (2) there was insufficient evidence to support her
conviction for terroristic threats. She also assigns that her trial
counsel was ineffective in multiple regards.
IV. STANDARD OF REVIEW
[1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same: An
appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence, and
such matters are for the finder of fact. 3 The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. 4
[2,3] Whether a claim of ineffective assistance of 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 preju-
diced by counsel’s alleged deficient performance. 6
V. ANALYSIS
1. Trial Before All-Male Jury
Clark argues that she was deprived of her rights under the
6th and 14th Amendments to the U.S. Constitution to a fair
trial and an impartial jury because she was tried before an
all-male jury. Clark acknowledges that “‘[d]efendants are not
3 State v. Lorello, 314 Neb. 385, 991 N.W.2d 11 (2023).
4 Id.
5 State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023).
6 Id.

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entitled to a jury of any particular composition.’” 7 She also
acknowledges that “women were included in the full venire
list called to serve” and that it is “unclear” whether women
were purposefully “removed.” 8 However, she asserts that the
“lack of any females within the final jurors chosen for trial is
enough evidence to support an assertion that something did
not happen as it should have during jury selection — whether
the calling of a disproportionate jury pool or discrimination in
jury selection.” 9 The State counters that “any objection to the
jury was waived once the jury was passed for cause.” 10
Over a century ago in Turley v. State, 11 we rejected the
defendant’s 	claim 	that 	his 	conviction 	should 	be 	reversed
because after the trial was completed, one of the jurors was
discovered to have been formerly convicted of a felony. In so
doing, we reasoned:
Great latitude is allowed the defendant upon the voir dire
examination to enable him to ascertain whether there is
any ground for objecting to the juror. He cannot waive
an objection of this nature, and, after taking his chances
of an acquittal before the jury selected, insist upon an
objection which he should have raised upon the impan-
eling of the jury, and, if he makes no effort to ascertain
whether a juror offered is qualified to sit, he must be held
to have waived the objection. 12
[4] Our subsequent opinions clarified that Turley holds that
“when a defendant, through diligence, is able to discover a
reason to challenge a juror, the objection to the juror must
7 Brief for appellant at 12 (quoting Taylor v. Louisiana, 419 U.S. 522, 95 S.
Ct. 692, 42 L. Ed. 2d 690 (1975)).
8 Id. at 10.
9 Id. at 11-12.
10 Brief for appellee at 12.
11 Turley v. State, 74 Neb. 471, 104 N.W. 934 (1905).
12 Id. at 476, 104 N.W. at 936 (emphasis omitted).

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Cite as 315 Neb. 736
be made at the time of voir dire.” 13 In other words, Turley
does not stand for the proposition that an objection to a juror
is waived when the juror has concealed information and the
defendant through diligence cannot discover the information
before trial. 14 However, we have otherwise hewed to the rule
that a party who fails to challenge the jurors for disqualifi-
cation and passes the jurors for cause generally waives any
objection to their selection as jurors. 15
In the present case, Clark does not suggest that something
has been concealed as to the jurors and could not have been
discovered through diligence before trial. Nor does she dis-
pute that her trial counsel failed to challenge the jurors for
disqualification at the trial and passed the jurors for cause. To
the contrary, Clark alleges that her trial counsel was ineffec-
tive for failing to object to the all-male jury. Accordingly, we
agree with the State that Clark waived any objection to the
all-male jury. We will, however, discuss her claim that the all-
male jury violated her constitutional rights to a fair trial and
an impartial jury further below in conjunction with her claims
of ineffective assistance of counsel.
2. Sufficiency of Evidence as
to Terroristic Threats
Clark also argues that the evidence was insufficient to
support her conviction for terroristic threats. In particular,
she argues that there was “no direct evidence that points to
[her] intent to actually terrorize” Parker and that her words
and actions and the surrounding circumstances fail to show
such intent. 16 The State, on the other hand, argues that during
13 State v. Harris, 264 Neb. 856, 861, 652 N.W.2d 585, 589 (2002).
14 Id.
15 See, e.g., State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017); Bittner v.
Miller, 226 Neb. 206, 410 N.W.2d 478 (1987); Schroll v. Fulton, 213 Neb.
310, 328 N.W.2d 780 (1983); Regier v. Nebraska P. P. Dist., 189 Neb. 56,
199 N.W.2d 742 (1972).
16 Brief for appellant at 13.

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STATE v. CLARK
Cite as 315 Neb. 736
the confrontation between Clark and Parker, Clark “grabbed
a box cutter from [the truck],” saying, “‘[B]itch I’m going
to kill you.’” 17 The State argues that a reasonable jury could
infer from those words and actions and the surrounding cir-
cumstances that Clark intended to terrorize Parker.
[5,6] 	The 	statute 	under 	which 	Clark 	was 	charged,
§ 28-311.01, provides, in relevant part, that persons commit
the offense of terroristic threats if they threaten to commit
any crime of violence with the intent to terrorize another or
in reckless disregard of causing such terror. In other words,
the crime proscribed by § 28-311.01 does not require an intent
to execute the threats made; rather, it requires the intent to
terrorize another as a result of the threats or a reckless dis-
regard of the risk of causing terror to another. 18 In turn, for
purposes of the crime of terroristic threats, the intent to ter-
rorize another is an intent to produce intense fear or anxiety
in another. 19 The intent with which an act is committed is a
mental process and may be inferred from the words and acts
of the defendant and from the circumstances surrounding
the incident. 20
In the present case, there was uncontroverted testimony
from Parker that she and Clark were involved in a “physical
confrontation” and that in the course of that confrontation,
Clark threatened to have her “beat[en] . . . up” by various
persons before grabbing a box cutter and saying, “[B]itch I’m
going to kill you.” Parker also testified that she was “con-
cerned for [her] safety” and backed away from Clark. Clark’s
trial counsel pressed Parker about whether she “backed up” out
of fear of what Clark might do with the box cutter or because
Clark stepped out of the vehicle. However, any dispute as to
17 Brief for appellee at 15.
18 State v. Saltzman, 235 Neb. 964, 458 N.W.2d 239 (1990).
19 State v. Bryant, 311 Neb. 206, 971 N.W.2d 146 (2022).
20 State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023).

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STATE v. CLARK
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whether Parker was actually terrorized by Clark’s threats is
immaterial. Section 28-311.01 does not require that the recipi-
ent of the threat be actually terrorized; rather, it requires that
the actor have the intent to terrorize the recipient as a result of
the threat or a reckless disregard of the risk of causing terror,
as was previously noted. 21
We agree with the State that viewing the foregoing evidence
in the light most favorable to the prosecution, a rational trier of
fact could have found beyond a reasonable doubt the essential
elements of the crime of terroristic threats and, in particular,
an intent to produce intense fear or anxiety in another. Prior
opinions have upheld convictions for terroristic threats where
the defendant displayed a weapon 22 and made statements like
“‘consider yourself next on my list for a bullet’” 23 or “‘“[n]ow
you are going to get yours.”’” 24
Clark’s primary basis for arguing that the requisite intent
cannot be inferred from her words and acts and the surrounding
circumstances is apparently that she was “heavily intoxicated
when the incident occurred.” 25 Clark relies on our 1990 opinion
in State v. Saltzman 26 for the proposition that while voluntary
intoxication does not ordinarily justify or excuse a crime, an
accused may be intoxicated to such an extent that “the accused
is incapable of forming the intent required as an element of the
crime charged.”
21 Bryant, supra note 19.
22 See, e.g., State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137 (2009); State
v. Curlile, 11 Neb. App. 52, 642 N.W.2d 517 (2002); State v. Tillman, 1
Neb. App. 585, 511 N.W.2d 128 (1993).
23 Bryant, supra note 19, 311 Neb. at 209, 971 N.W.2d at 149.
24 Tillman, supra note 22, 1 Neb. App. at 587, 511 N.W.2d at 130. See, also,
Saltzman, supra note 18, 235 Neb. at 968, 458 N.W.2d at 242 (defendant
said, among other things, that he was going to “‘get’” victim and her
children).
25 Brief for appellant at 13.
26 Saltzman, supra note 18, 235 Neb. at 970, 458 N.W.2d at 244.

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However, as the State observes, in 2011, several years after
our opinion in Saltzman, the Legislature enacted Neb. Rev.
Stat. § 29-122 (Reissue 2016), which provides that intoxica-
tion may not be considered in determining the existence of a
mental state that is an element of a criminal offense unless the
defendant proves, by clear and convincing evidence, that he
or she did not know that the substance was intoxicating when
he or she ingested it or that the substance was not voluntarily
ingested. Clark points to no evidence showing that on the night
in question, she did not know she was ingesting alcohol or that
she did not voluntarily ingest alcohol. As such, the fact that
Clark was “heavily intoxicated” 27 cannot be seen to preclude
her from having had the requisite intent to terrorize Parker and
produce intense fear or anxiety in Parker.
3. Clark’s Claims of Ineffective
Assistance of Trial Counsel
In addition, Clark assigns that her trial counsel was ineffec-
tive for (1) failing to object to the all-male jury, (2) failing to
object on hearsay grounds to Parker’s testimony about A.L.’s
statements regarding the sexual assault, and (3) failing to file
a motion in limine to exclude Parker’s testimony that Clark
asked about purchasing drugs.
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. 28 However, the fact that
an ineffective assistance of counsel claim is raised on direct
appeal does not necessarily mean that it can be resolved. 29
The determining factor is whether the record is sufficient to
27 Brief for appellant at 13.
28 State v. Garcia, ante p. 74, 994 N.W.2d 610 (2023).
29 See State v. Boone, 314 Neb. 622, 992 N.W.2d 451 (2023).

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adequately review the question under the standard of review
previously noted. 30 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. 31
[7-9] Generally, to prevail on a claim of ineffective assist-
ance of counsel under Strickland v. Washington, 32 the defend-
ant must show that his or her counsel’s performance was defi-
cient and that this deficient performance actually prejudiced
the defendant’s defense. 33 To show that counsel’s performance
was deficient, a defendant must show that counsel’s perform-
ance did not equal that of a lawyer with ordinary training
and skill in criminal law. 34 To show prejudice in a claim of
ineffective assistance of counsel, the defendant must demon-
strate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been
different. 35 A reasonable probability is a probability sufficient
to undermine confidence in the outcome. 36
A court may examine performance and prejudice in any
order and need not examine both prongs if a defendant fails to
demonstrate either. 37
(a) Failing to Object to All-Male Jury
Clark argues that her trial counsel was ineffective for
failing to object to the all-male jury. Clark claims that “[a]
30 Mabior, supra note 5.
31 Id.
32 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
33 Garcia, supra note 28.
34 Id.
35 Id.
36 See id.
37 See id.

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lawyer with ordinary training and skill would have objected
to the all-male jury and to the peremptory challenges made
to at least preserve the issue for appellate purposes.” 38 Clark
also claims that she was prejudiced by her trial counsel’s
deficient performance in this regard, because the all-male jury
violated her 6th and 14th Amendment rights to a fair trial and
an impartial jury. The State, in turn, argues that trial counsel’s
performance was not deficient and that Clark cannot show
that she was prejudiced thereby.
Clark likens her situation to that of the defendant in Taylor
v. Louisiana. 39 In Taylor, a state law barred women from
being selected for jury service unless they had previously
filed a written declaration of their desire to be subject to jury
service. 40 As a result, even though women represented 53 per-
cent of the citizens eligible for jury service in the defendant’s
judicial district, there were no females on the 175-person
venire drawn for jury service in his case. 41 The defendant
challenged his conviction by an all-male jury, arguing that
the all-male jury violated his 6th and 14th Amendment right
to an impartial jury trial. 42 The U.S. Supreme Court agreed. 43
The Court reasoned that the selection of a petit jury from a
“representative cross section of the community is an essential
component of the Sixth Amendment right to a jury trial” 44 and
that this fair-cross-section requirement was violated by the
“systematic exclusion of women” from the jury in the defend-
ant’s case. 45
38 Brief for appellant at 16.
39 Taylor, supra note 7.
40 Id.
41 Id.
42 Id.
43 Id.
44 Id., 419 U.S. at 528.
45 Id., 419 U.S. at 531.

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Clark also points to J. E. B. v. Alabama ex rel. T. B., 46
wherein the U.S. Supreme Court found that the State’s use of
peremptory challenges to exclude men from the jury, based
solely on their gender, violated the Equal Protection Clause
of the 14th Amendment. The State used 9 of its 10 peremp-
tory challenges to remove males. 47 As a result, the State’s case
seeking to establish the petitioner’s paternity and obligate him
to pay child support was tried before an all-female jury. 48
Clark argues that even though the all-male jury in her case
was not due to a rule excluding women, “the result was the
same” as in Taylor and J. E. B. 49 She also argues that the same
“concerns brought up in Taylor [and J. E. B.] are present” in
her case. 50 Clark maintains that even if the all-male jury in her
case did not result from any “purposeful gender exclusion,”
it nonetheless deprived her of her right to a jury of her peers,
and that the denial of that right warrants the reversal of her
convictions. 51 Clark similarly maintains that the statement in
Taylor that while petit juries must be drawn from a source
fairly representative of the community, “‘[d]efendants are not
entitled to a jury of any particular composition,’” 52 pertains
only to the relative number of males and females on the jury.
In Clark’s view, the situation is different where there is the
“complete lack of a gender group.” 53
[10,11] We have followed the principles set forth in Taylor,
J. E. B., and related cases in our own opinions. We have
recognized that the Sixth Amendment secures to criminal
46 J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed.
2d 89 (1994).
47 Id.
48 Id.
49 Brief for appellant at 10.
50 Id.
51 Id.
52 Id. at 12 (quoting Taylor, supra note 7).
53 Id.

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defendants the right to be tried by an impartial jury drawn
from sources reflecting a fair cross-section of the community. 54
We have also recognized that the Equal Protection Clause of
the 14th Amendment forbids prosecutors from using peremp-
tory challenges to strike potential jurors solely on account of
their gender. 55
However, consistent with U.S. Supreme Court opinions, we
have also required that defendants make certain initial show-
ings in such cases. Specifically, to establish a prima facie
violation of the fair-cross-section requirement under the Sixth
Amendment, a defendant must show that the underrepresenta-
tion of the group alleged to be excluded is due to systematic
exclusion of the group in the jury selection process, among
other things. 56 Similarly, in order to show that a prosecutor
has used peremptory challenges in a discriminatory manner
in violation of the 14th Amendment, a defendant must first
make a prima facie showing that the prosecutor has exercised
peremptory challenges on the basis of gender. 57
Clark does not point to any evidence that women were
systematically excluded during the jury selection process to
which her trial counsel failed to object. Nor does Clark point
to any evidence that the prosecutor exercised peremptory chal-
lenges on the basis of gender to which her trial counsel failed
to object. Instead, Clark invites us to presume that “some-
thing did not happen as it should have during jury selection”
from the fact that the jurors selected were all male. 58 Like
54 See, e.g., State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022); State v.
Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019); State v. Sanders, 269 Neb.
895, 697 N.W.2d 657 (2005).
55 See, e.g., State v. Lowe, 267 Neb. 782, 677 N.W.2d 178 (2004), abrogated
on other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010);
State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on
other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
56 Trail, supra note 54.
57 Lowe, supra note 55.
58 Brief for appellant at 12.

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other courts, we decline to adopt such invitation. 59 “Purposeful
discrimination may not be assumed, or merely asserted,” 60
and incredulity at an all-male or all-female jury is no substi-
tute for evidence of discrimination. 61
Because there was no evidence that women were system-
atically excluded during the jury selection process or that the
prosecutor exercised peremptory challenges on the basis of
gender, any objection to the all-male jury on those grounds
would have been meritless. Counsel is not deficient for failing
to raise a meritless objection. 62
(b) Failing to Object on Hearsay Grounds
to Parker’s Testimony About
A.L.’s Statements
Clark also argues that her trial counsel was ineffective for
failing to object on hearsay grounds to Parker’s testimony
about A.L.’s statements regarding the sexual assault. Clark
acknowledges that A.L. himself testified about the assault,
but she argues that hearing the information from both Parker
59 See, e.g., State v. Bell, No. 2 CA-CR 2023-0016-PR, 2023 WL 2473271
(Ariz. App. Mar. 13, 2023) (nonprecedential); Commonwealth v. Thoman,
284 A.3d 944 (Pa. Super. 2022) (nonprecedential); State v. Reed, 181
S.W.3d 567 (Mo. 2006); State v. Wilson, 38 Conn. App. 231, 660 A.2d
365 (1995); State v. Collins, 588 So. 2d 766 (La. App. 1991), overruled
on other grounds, State v. Ford, 643 So. 2d 293 (La. App. 1994); Com. v.
McFerron, 680 S.W.2d 924 (Ky. 1984); State v. Snoddy, 332 So. 2d 800
(La. 1976); Marquez v. State, 91 Nev. 471, 538 P.2d 156 (1975).
60 Marquez, supra note 59, 91 Nev. at 473, 538 P.2d at 157. Cf. State ex rel.
Macy v. Bragg, 13 P.3d 503 (Okla. Crim. App. 2000) (without evidence of
discriminatory juror selection mechanism, result can be attributed only to
chance).
61 Cf. Wong v. Lumpkin, No. A-22-CV-416-RP, 2023 WL 3483899 (W.D.
Tex. May 16, 2023) (rejecting petitioner’s claim that trial counsel was
ineffective for not objecting to all-female jury, where plaintiff was
incredulous at all-female jury but offered no evidence of bias).
62 Cf., State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022); State v.
Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).

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and A.L. “cause[d] [the jurors] to believe it must be true.” 63
The State counters that Parker’s testimony was not hearsay,
because it was offered for context and coherence and to show
the statements’ impact on Parker. The State also argues that
Clark cannot show that she was prejudiced by trial counsel’s
failure to object to Parker’s testimony about A.L.’s statements,
because that testimony was cumulative of other testimony.
[12,13] 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. 64 Hearsay is
not admissible unless otherwise provided for in the Nebraska
Evidence Rules or elsewhere. 65 However, by definition, an
out-of-court statement is not hearsay if the proponent offers
it for a purpose other than proving the truth of the matter
asserted. 66 For example, statements are not hearsay to the
extent that they are offered for context and coherence of other
admissible statements, and not for “‘the truth or the truth of
the matter asserted.’” 67 Statements are also not hearsay if the
proponent offers them to show their impact on the listener, and
the listener’s knowledge, belief, response, or state of mind after
hearing the statement is relevant to an issue in the case. 68
Turning to the seven statements made by Parker to which
Clark claims that her trial counsel should have objected, we
agree with the State that those statements were not hearsay,
because they were offered for context and coherence and to
show their impact on Parker, and not to prove that Clark sexu-
ally assaulted A.L. Parker admits that she initiated the “physi-
cal confrontation” with Clark. Parker’s testimony concerning
63 Brief for appellant at 16.
64 State v. Vaughn, 314 Neb. 167, 989 N.W.2d 378 (2023).
65 Id.
66 Id.
67 Id. at 188, 989 N.W.2d at 396.
68 Id.

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what A.L. told her about Clark during the drive and immedi-
ately after they stopped at the convenience store explains why
she did so, why she “lost [her] temper” and pushed or slapped
Clark when it appeared that Clark was attempting to follow
A.L. into the convenience store.
Specifically, Parker testified that A.L. initially answered
her inquiry about what was wrong by stating, “‘[N]othing
we’ll talk about it after we drop [Clark] off.’” However,
Parker testified that she persisted in her questions and that
A.L. subsequently made one or more statements to the effect
that Clark made him “uncomfortable” and that he did not like
Clark touching him. Parker also testified that after getting out
of the truck at the convenience store, A.L. “c[a]me around the
truck and . . . said I feel violated mom. He said, ‘she touched
my dick.’”
It was those statements, all made within a span of 5 to 10
minutes, that caused Parker to initiate the confrontation with
Clark during which Clark made the threats for which she
was subsequently prosecuted. Because the statements were not
hearsay, any objection to them on that ground would have been
meritless. As such, Clark’s claim that her trial counsel was
ineffective for failing to object on hearsay grounds to Parker’s
testimony about A.L.’s statements is without merit.
(c) Failing to File Motion in Limine
to Exclude Statements About
Purchase of Drugs
Clark’s third and final claim of ineffective assistance of
counsel concerns Parker’s testimony that shortly after enter-
ing Parker’s apartment, Clark made an inquiry that Parker
understood to refer to the purchase of drugs. Clark observes
that she was not charged with a controlled substance offense;
nor was there any evidence that she was under the influence
of a controlled substance at the time of the events in ques-
tion. As such, she argues, Parker’s testimony was unnecessary
and prejudicial because “[d]rugs are by nature considered

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bad things and associated with criminals.” 69 Therefore, Clark
claims that her trial counsel was ineffective “for not even
attempting to keep out all evidence and statements regarding
drugs.” 70 The State takes a different view.
There might be merit to a claim like that raised by Clark
under certain circumstances, as Clark suggests with her ref-
erence to our opinion in State v. Masters. 71 In Masters, we
found that testimony that the defendant “‘had some type of
connection with drugs’” was so prejudicial that it required
the reversal of his conviction. 72 We emphasized, however, that
this outcome reflected the “factual context” of that case. 73
[14] The present factual context is different. Most nota-
bly, it is different in that Clark assigns as error only that her
trial counsel was ineffective for “fail[ing] to file a [m]otion
in [l]imine to keep out any statements regarding the pur-
chase of drugs.” She does not assign as error that her trial
counsel was ineffective for failing to object to Parker’s tes-
timony at trial, although she argues in her brief on appeal
that Clark “received ineffective assistance of counsel when
those statements were allowed in . . . without any objection
by [t]rial [c]ounsel.” 74 An alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error to be considered by an appellate court. 75
As such, our review is limited to Clark’s claim that her trial
counsel was ineffective for failing to file a motion in limine
to exclude Parker’s testimony.
[15] We find that even if trial counsel was ineffective for
failing to file a motion in limine, Clark cannot show that she
69 Brief for appellant at 17.
70 Id.
71 State v. Masters, 216 Neb. 304, 343 N.W.2d 744 (1984).
72 Id. at 307, 343 N.W.2d at 746.
73 Id. at 308, 343 N.W.2d at 746.
74 Brief for appellant at 17.
75 Saylor v. State, ante p. 285, 995 N.W.2d 192 (2023).

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was prejudiced thereby. A motion in limine is a procedural
step to prevent prejudicial evidence from reaching the jury. 76 It
is not the office of a motion in limine to obtain a final ruling
upon the ultimate admissibility of the evidence. 77 Therefore,
when a court overrules a motion in limine to exclude par-
ticular evidence, the movant must object when the particular
evidence is offered at trial in order to predicate error before an
appellate court. 78 Here, however, Clark acknowledges that her
trial counsel did not object to Parker’s testimony about Clark’s
alleged inquiry about drugs.
Accordingly, Clark cannot show that she suffered prejudice
as a result of her trial counsel’s failure to file a motion in
limine, because a motion in limine in and of itself, without
any objection at trial, would have been futile, and Clark did
not assign that her trial counsel was ineffective for failing to
object to the statement at trial. 79
VI. CONCLUSION
Clark’s claims that the all-male jury violated her constitu-
tional rights, that there was insufficient evidence to support
her conviction for terroristic threats, and that her trial counsel
was ineffective in multiple regards are without merit. As a
result, the judgment of the district court is affirmed.
Affirmed.
76 Vaughn, supra note 64.
77 Id.
78 Id.
79 See, e.g., State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022); State v.
Hill, 298 Neb. 675, 905 N.W.2d 668 (2018); State v. Britt, 237 Neb. 163,
465 N.W.2d 466 (1991); State v. Thomas, 236 Neb. 553, 462 N.W.2d 862
(1990).