State v. German

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. GERMAN
Cite as 321 Neb. 652
State of Nebraska, appellee, v.
Kevin S. German, appellant.
___ N.W.3d ___
Filed June 26, 2026. 	No. S-25-673.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Postconviction: Judgments: Appeal and Error. Whether a claim raised
in a postconviction proceeding is procedurally barred is a question of
law which is reviewed independently of the lower court’s ruling.
3. Judgments: Appeal and Error. A correct result will not be set aside
merely because the lower court applied the wrong reasoning in reaching
that result.
4. Postconviction: Constitutional Law. Postconviction relief, described in
Neb. Rev. Stat. § 29-3001 (Cum. Supp. 2024), is a very narrow category
of relief, available only to remedy prejudicial constitutional violations
that render the judgment void or voidable.
5. Postconviction: Pleadings. The allegations in a motion for postcon-
viction relief must be sufficiently specific for the district court to
make a preliminary determination as to whether an evidentiary hearing
is justified.
6. ____: ____. A postconviction motion that lacks the specific factual alle-
gations necessary to support the claims made is no more than a fishing
expedition for evidence that might aid in obtaining postconviction relief
and is therefore insufficient to warrant an evidentiary hearing.
7. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
required on a motion for postconviction relief containing specific factual
allegations that, if proved, constitute an infringement of the movant’s
rights under the Nebraska or federal Constitution—unless the records
and files affirmatively show that the defendant is entitled to no relief.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:40 AM CDT

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. GERMAN
Cite as 321 Neb. 652
8. ____: ____: ____. An evidentiary hearing is required on a motion for
postconviction relief unless (1) the motion does not contain factual
allegations that, if proved, constitute an infringement of the movant’s
constitutional rights rendering the judgment void or voidable; (2) the
motion alleges only conclusions of fact or law without supporting facts;
or (3) the records and files affirmatively show that the defendant is
entitled to no relief.
9. Postconviction: Proof. In the absence of alleged facts that would render
a judgment void or voidable, the proper course is to overrule a motion
for postconviction relief without an evidentiary hearing.
10. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues which were or could have
been litigated on direct appeal, no matter how those issues may be
phrased or rephrased.
11. Postconviction: 	Effectiveness 	of 	Counsel: Appeal 	and 	Error.
Ordinarily, the issue of trial counsel’s alleged ineffectiveness will be
procedurally barred when a defendant’s trial counsel is different from
his or her counsel on direct appeal and the defendant does not raise on
direct appeal any issue of trial counsel’s ineffective performance which
is known to the defendant or is apparent from the record.
12. Postconviction: Effectiveness of Counsel: Appeal and Error. Claims
of ineffective assistance of appellate counsel may be raised for the first
time on postconviction review.
13. Effectiveness of Counsel: Appeal and Error. An ineffective assistance
of counsel claim is not procedurally barred if it was raised on direct
appeal but not expressly or necessarily decided on the merits.
14. Postconviction: Claim Preclusion: Appeal and Error. The Nebraska
Supreme Court applies principles analogous to claim preclusion on
postconviction actions to bar relitigating any issues directly addressed
or necessarily included in its decision on direct appeal of an inmate’s
convictions and sentences.
15. Postconviction: Collateral Attack: Appeal and Error. A defendant
cannot use a motion for postconviction relief to collaterally attack issues
that were decided against him or her on direct appeal.
16. Effectiveness of Counsel: Proof: Appeal and Error. Like a claim of
ineffective assistance of trial counsel, a claim of ineffective assistance
of appellate counsel has two prongs, deficient performance and preju-
dice. These can be addressed in any order, and a court need not examine
both prongs if a defendant fails to demonstrate either.
17. ____: ____: ____. To show deficient performance, an inmate alleging a
layered claim of ineffective assistance of appellate counsel must allege

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. GERMAN
Cite as 321 Neb. 652
sufficient facts that, if proved, would demonstrate appellate counsel was
objectively unreasonable in failing to discover and raise a nonfrivolous
issue on direct appeal.
18. Postconviction: Effectiveness of Counsel: Appeal and Error. A
motion for postconviction relief based on appellate counsel’s failure to
raise on direct appeal trial counsel’s allegedly deficient conduct fails
when it does not allege that appellate counsel knew or should have
known to raise the issue.
19. Postconviction: Proof: Appeal and Error. To show prejudice from the
alleged deficient conduct of appellate counsel, an inmate on postconvic-
tion must allege supporting facts for the assertion that raising the issue
on direct appeal would have changed the outcome.
20. ____: ____: ____. An inmate on postconviction must show a reason-
able probability that, but for his or her appellate counsel’s failure to
properly raise the issue on appeal, the result of the appeal would have
been different.
21. Effectiveness of Counsel: Appeal and Error. If trial counsel was
not ineffective, then the defendant was not prejudiced by appellate
counsel’s failure to raise on direct appeal the issue of trial counsel’s
ineffectiveness.
22. Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
Waiver. Defense counsel’s advice to waive the right to testify can
present a valid claim of ineffective assistance in two instances: (1) if
the defendant shows that counsel interfered with his or her freedom to
decide to testify or (2) if counsel’s tactical advice to waive the right
was unreasonable.
23. Effectiveness of Counsel. As a matter of law, counsel is not ineffective
for not attempting to adduce inadmissible testimony.
24. Evidence. Evidence that is not relevant is inadmissible.
Appeal from the District Court for Chase County: Patrick
M. Heng, Judge. Affirmed.
Christopher Eickholt, of Eickholt Law, L.L.C., for appellant.
Michael 	T. 	Hilgers, Attorney 	General, 	and 	Melissa 	R.
Vincent for appellee.
Funke, C.J., Cassel, Stacy, Papik, Freudenberg, and
Vaughn, JJ., and Hoeft, District Judge.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. GERMAN
Cite as 321 Neb. 652
Freudenberg, J.
I. INTRODUCTION
The defendant appeals from the district court’s dismissal
of his motion for postconviction relief without an eviden-
tiary hearing. He raised in his motion issues of ineffective
assistance of counsel, primarily layered claims, involving (1)
trial counsel’s advice leading to his decision not to testify, (2)
trial counsel’s failure to object to or seek redaction of certain
comments by the defendant in a police interview played for
the jury, (3) trial counsel’s failure to adduce a victim’s alleged
past acts of prostitution, (4) trial counsel’s failure to chal-
lenge his competency during trial when he was not receiving
his medication for attention deficit disorder, and (5) appel-
late counsel’s failure to present a better argument on appeal
pertinent to whether trial counsel was ineffective concern-
ing jury instructions on kidnapping and aiding and abetting.
We affirm.
II. BACKGROUND
Kevin S. German was convicted of second degree mur-
der and kidnapping of Annika Swanson and of first degree
false imprisonment of Eve Ambrosek. The charges were based
on events occurring over a 2-day period in November 2019
in Imperial, Nebraska, involving German’s drug dealing and
romantic entanglements.
German’s girlfriend, Keonna Carter, was involved in the
commission of the crimes and testified at trial pursuant to a
plea bargain agreement. The district court sentenced German
to 60 to 80 years’ imprisonment for murder in the sec-
ond degree, life imprisonment for kidnapping, and 30 to 36
months’ imprisonment for first degree false imprisonment.
German’s convictions and sentences were affirmed on direct
appeal in State v. German. 1 German appeals the district court’s
denial, without an evidentiary hearing, of his motion for post-
conviction relief.
1 State v. German, 316 Neb. 841, 7 N.W.3d 206 (2024).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. GERMAN
Cite as 321 Neb. 652
1. Trial Facts
German’s trial took place in the district court for Chase
County, Nebraska, in Imperial. German’s pretrial motion for
a change of venue was overruled after the court considered
the questionnaires submitted by the venire, and it overruled a
renewed motion for change of venue at the close of voir dire.
As set forth in more detail in our opinion in German, the
jury heard the following evidence at trial: In the summer of
2019, German was living in Louisiana and was in a relation-
ship with both Carter and Ambrosek, telling each of them
that the relationship with the other was over. Carter lived
in Colorado, and Ambrosek lived in Imperial. German and
Ambrosek both sold drugs. In September 2019, German moved
back to Imperial, where Ambrosek introduced German to Russ
Mann, who also sold drugs. Mann lived with Swanson in a
trailer where they used methamphetamine daily. German knew
Swanson from when they attended high school together in
Imperial. Over the next couple of months, Mann regularly gave
German methamphetamine in exchange for cocaine.
Ambrosek suspected that German was still in a relationship
with Carter and eventually ended the relationship. German
moved in with Carter in Colorado but made frequent trips
to Imperial to deliver drugs to Mann. German was becom-
ing upset with Swanson because she was a “busy body” who
could not “keep her mouth shut” and was interfering with their
drug dealing.
On 	November 	12, 	2019, 	German 	and 	Carter 	were 	at
Mann’s trailer when Swanson received a text from Ambrosek,
seeking drugs. Swanson told German, in Carter’s presence,
that his “girlfriend” was texting her. Apparently Ambrosek
owed German money, so he took Swanson’s phone and pre-
tended to be Swanson to set up a meeting with Ambrosek.
German drove to the designated meeting point, where he told
Ambrosek to get into Carter’s car. Carter was in the passen-
ger seat. While German drove and held a gun, Carter yelled
at Ambrosek and hit her. They eventually stopped at land

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. GERMAN
Cite as 321 Neb. 652
belonging to German’s family, where German and Carter
assaulted Ambrosek and gave her the choice of being either
killed or prostituted out. Ambrosek agreed to prostitute her-
self and they returned Ambrosek to Mann’s trailer.
The next morning, November 13, 2019, Ambrosek and
Swanson were kept at the trailer against their will. At some
point, Swanson and Carter spoke alone and Swanson told
Carter that German and Ambrosek had a sexual relationship in
September and October 2019. Carter became angry. At Carter’s
urging, she and German left to return to Colorado, but Carter
confronted German about his relationship with Ambrosek while
they were in the car. German became very angry with Swanson,
claiming she was lying, and drove back to Mann’s trailer.
When German and Carter arrived at Mann’s trailer, German
dragged Swanson outside, put her in the back of the car, and
drove off. German eventually stopped the car along a gravel
road after Swanson said something that upset German further.
He pulled Swanson out of the car, and both German and Carter
physically assaulted her. After Carter stepped on Swanson’s
neck, Swanson’s “pulse just got weak.” German and Carter
put Swanson in the trunk of the car, and German drove again
to his family’s land, this time to a place where a vertical pipe
protruded from the ground.
While they were driving, Carter heard Swanson moan.
When they let Swanson out of the trunk, Carter heard German
tell Swanson to drink something. Carter said there was a con-
tainer of windshield wiper fluid in the car. German next told
Swanson to get into the pipe, and after Swanson did so, Carter
saw German ignite some items and throw them into the pipe
while Swanson repeatedly said, “‘[N]o.’” German and Carter
returned to Mann’s trailer, where German told Mann that
Swanson was somewhere no one would find her.
The court admitted into evidence and played for the jury a
recording of German’s custodial interview with law enforce-
ment when they were searching for Swanson’s whereabouts
after her father reported her as missing. German said that, on

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. GERMAN
Cite as 321 Neb. 652
the night in question, he drove Swanson out of town to get her
out of a bad situation. German said he dropped Swanson off
and speculated she “either ran off with a Mexican dude . . . or
she got killed.” During the interview, German commented that
he was “the only black kid” growing up in the small town of
Imperial, where he learned what racism was “real quick.” He
also commented that because “people know people,” the police
did not do their jobs, and that the police and sheriff were cor-
rupt. Finally, German said that his family was well off and that
people expected him to “hand out money or something.”
Swanson’s body was eventually found in a horizonal struc-
ture that was connected to the vertical pipe, which was part
of a culvert system. The State’s expert witness testified that
Swanson’s cause of death was blunt force head injuries and
methanol and methamphetamine toxicity. The expert opined
that the methanol was at a fatal level and that the methamphet-
amine was a contributing factor. Windshield wiper fluid con-
tains methanol, and evidence retrieved from the scene included
a bottle containing methanol.
German did not testify in his own defense. Before the case
was submitted to the jury for deliberations, an on-the-record
discussion with German documented his decision not to testify
in his own defense. German confirmed he and defense counsel
had discussed the matter on “a number of occasions” and that
he understood his right to testify. German stated he was not
pressured by defense counsel not to testify; rather, it was a
decision he made because he believed it to be the appropriate
choice under the circumstances.
Defense counsel argued to the jury that Carter and Swanson
engaged in a fight that contributed to Swanson’s eventual
death. Other than Carter’s testimony, there was no evidence
German attacked Swanson, “knew what was going to happen
between these two women, or what . . . Carter was going to
do[,] or encouraged it or approved of it.” Defense counsel
made several arguments undermining the credibility of the
witnesses against German, especially Carter and Ambrosek.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. GERMAN
Cite as 321 Neb. 652
Defense counsel asserted that Carter had a motive to lie and
that it was Carter, not German, who made Swanson drink
the windshield wiper fluid. Regardless, neither German nor
Carter necessarily knew windshield wiper fluid could cause
serious injury or death.
The court instructed the jury, “You must not allow sympathy
or prejudice to influence your verdict.” It gave a step instruc-
tion for homicide with a corresponding aiding and abetting
instruction.
The aiding and abetting instruction given for the charges
of first degree murder, second degree murder, and man-
slaughter was based on NJI2d Crim. 3.8. The court instructed
that German could be guilty even though he personally did
not commit every act involved in the crime, so long as he
aided someone else to commit it, explaining that German aided
someone else to commit the crime of murder if (1) he inten-
tionally encouraged or intentionally helped another person to
commit the crime and (2) he intended that the crime be com-
mitted or knew the other person intended to commit the crime
and (3) the crime was in fact committed by that other person.
The court also explained: “Mere encouragement or assistance
is sufficient. On the other hand, the evidence of mere presence,
acquiescence, or silence is not enough to sustain the State’s
burden of proving [German] guilty.”
The court instructed the jury that the elements of second
degree murder were that German, either independently or while
aiding and abetting another, intentionally, but without premedi-
tation or the provocation of a sudden quarrel, killed Swanson.
The court instructed that the elements of kidnapping were
that German either independently or while aiding and abetting
another did abduct Swanson or, having abducted her, continued
to restrain her, and that he did so with the intent to terrorize
her or to commit a felony. The aiding and abetting instruction
corresponding to the kidnapping instruction was similar to the
one for homicide.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. GERMAN
Cite as 321 Neb. 652
The trial court refused trial counsel’s tendered aiding and
abetting instructions, which closely followed the language
from State v. Ramsay, 2 wherein we held that an aider and
abettor can be liable as a principal for a crime requiring
proof of a particular intent only if it is shown that the aider
and abettor knew that the perpetrator of the act possessed the
required intent or that the aider and abettor himself possessed
such intent:
When the elements of a crime charged require proof of
the existence of a particular intent, an alleged aider or
abettor can be held criminally liable as a principal only if
it is shown that the aider and abettor knew that the perpe-
trator of the act possessed the required intent, or that the
aider and abettor himself possessed such intent.
Additionally, trial counsel proposed to add “[i]ntentional”
before “[m]anslaughter,” which the trial court refused.
2. Interrelated Claims Made on Direct Appeal
and on Postconviction
Following the jury’s verdict, German, with new counsel,
appealed, assigning 11 errors, including 8 instances of ineffec-
tive assistance of trial counsel. Several of the errors assigned
by appellate counsel on direct appeal are related to claims in
German’s motion for postconviction relief. Broadly, these fall
into three categories: the instructions, the police interview
statements, and German’s decision not to testify.
(a) Instructions
The instructions were the source of several challenges on
direct appeal, as well as a layered claim in the postconviction
motion. These challenges focused on the manslaughter, aid-
ing and abetting, and kidnapping instructions and revolved
around arguments that the jury (1) was permitted to find
German guilty under an aiding and abetting theory without
the necessary intent and (2) was not required to determine
2 State v. Ramsay, 257 Neb. 430, 598 N.W.2d 51 (1999).

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STATE v. GERMAN
Cite as 321 Neb. 652
whether German liberated Swanson alive in a safe place with-
out her having suffered serious bodily injury.
(i) Direct Appeal
a. Aiding and Abetting Instructions
We found no merit on direct appeal to German’s appellate
counsel’s allegation that the trial court erred by refusing to
give trial counsel’s tendered instructions on aiding and abet-
ting. We held that while the language proposed by German
was a correct statement of the law, a court should usually give
the applicable instruction in the Nebraska Jury Instructions,
and the court’s instruction based on NJI2d Crim. 3.8 was a
fair, impartial, and complete statement of the applicable law.
We held that this instruction was compliant with Ramsay; in
fact, we could “discern no significant difference between the
instructions given and German’s requested instructions.” 3
b. Manslaughter and Kidnapping Instructions
Relatedly, we found no merit to appellate counsel’s chal-
lenges to the trial court’s decision rejecting his tendered
instruction 	on 	“[i]ntentional 	[m]anslaughter” 	and 	to 	trial
counsel’s failure to object to the kidnapping jury instruction
or tender an appropriate instruction on kidnapping. Appellate
counsel argued that the instructions for homicide and kidnap-
ping were both problematic because they incorporated an
unintentional form of manslaughter as a possible predicate
felony. Appellate counsel argued that any conviction of homi-
cide or kidnapping through aiding and abetting “‘must be
affixed to intentional crimes’” 4 and that because of the “unin-
tentional . . . manslaughter” instruction, they possibly were
not. 5 We reasoned that German could not establish prejudice
3 State v. German, supra note 1, 316 Neb. at 858, 7 N.W.3d at 222. See
State v. Ramsey, supra note 2.
4 State v. German, supra note 1, 316 Neb. at 859, 7 N.W.3d at 222.
5 Id. at 858, 7 N.W.3d at 222.

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STATE v. GERMAN
Cite as 321 Neb. 652
with respect to either the alleged trial error or the alleged
deficient conduct of trial counsel, because the jury found him
guilty of second degree murder. We explained that, under the
step instructions, the jury never considered “unintentional”
manslaughter as the predicate felony.
c. Challenge That Jury Was Not Required to
Make Factual Findings Under Statute
Lastly, as relates to the instructions, appellate counsel chal-
lenged the trial court’s failure to require the jury, in determin-
ing German’s guilt on the charge of kidnapping, to make the
factual findings that would distinguish the crime as either a
Class IA felony or a Class II felony under Neb. Rev. Stat.
§ 28-313 (Reissue 2016). Appellate counsel also challenged
trial counsel’s failure to object to the kidnapping instruction
or tender an appropriate kidnapping instruction that would
require the jury to make these findings. Counsel pointed to
§ 28-313, which states that except as provided in subsection
(3) thereof, kidnapping is a Class IA felony. Section 28-313(3)
states: “If the person kidnapped was voluntarily released or
liberated alive by the abductor and in a safe place without
having suffered serious bodily injury, prior to trial, kidnap-
ping is a Class II felony.” Appellate counsel argued the U.S.
Supreme Court’s decision in Alleyne v. United States, 6 which
held that any fact altering the legally prescribed punishment
to aggravate it must be determined by the jury, applied to
whether the person kidnapped was voluntarily released or
liberated alive by the abductor in a safe place without having
suffered serious bodily injury.
In affirming, we held that we need not determine the
broader question of whether the jury must determine if the vic-
tim was voluntarily released or liberated alive by the abductor
in a safe place without having suffered serious bodily injury,
6 Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013).

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STATE v. GERMAN
Cite as 321 Neb. 652
because the jury necessarily rejected the idea that Swanson
was released in a safe place without having suffered serious
bodily injury when it found German guilty of the separate
charge of second degree murder. In other words, German was
not prejudiced by the instructions given.
(ii) Motion for Postconviction Relief
In his motion for postconviction relief, German made a
nuanced layered claim with respect to the alleged errors in
the instructions on both kidnapping and aiding and abetting.
German asserted that appellate counsel failed to “clearly
and effectively” argue the connection between the erroneous
wording of the aiding and abetting instruction and the errone-
ous kidnapping instruction. German asserted that because of
this deficient performance, we failed to consider the interplay
of the kidnapping and aiding and abetting instructions when
finding no merit to the assigned errors on direct appeal chal-
lenging the instructions.
More specifically, German suggested that, because of appel-
late counsel’s deficient argument on appeal, we failed to con-
sider the wording of the aiding and abetting instruction when
holding there was no prejudice from the kidnapping instruc-
tion. German elaborated that because the jury instruction on
aiding and abetting stated he could be guilty of second degree
murder by mere encouragement or assistance, the jury could
have found, under an aiding and abetting theory, that German
was guilty of second degree murder without necessarily find-
ing German intended, or knew that Carter intended, death. If
that was so, then the jury did not, in finding German guilty
of second degree murder, necessarily find the requisite mens
rea for kidnapping as a Class IA felony carrying a mandatory
life sentence.
German also asserted in his motion for postconviction relief
that appellate counsel was ineffective by failing to assign and
argue trial counsel was ineffective by failing to file a motion

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STATE v. GERMAN
Cite as 321 Neb. 652
for new trial on the kidnapping charge due to the allegedly
erroneous instruction.
(iii) Postconviction Order
The district court found that German’s postconviction claim
based on the failure to instruct the jury to determine whether
Swanson was liberated alive was raised and decided on direct
appeal and, thus, was procedurally barred. Likewise, the court
found that the claim that appellate counsel was ineffective by
failing to argue the connection between the allegedly errone-
ous wording of the aiding and abetting instruction and the
allegedly erroneous kidnapping instruction had been necessar-
ily addressed in the direct appeal. And if trial counsel was not
ineffective, then German could not have been prejudiced by
appellate counsel’s failure to raise the issue.
(b) Interview Statements
Both on direct appeal and in his postconviction motion,
German raised ineffective assistance claims relating to the
admission of certain statements from his police interview.
(i) Direct Appeal
German’s appellate counsel raised on direct appeal that trial
counsel was ineffective by not objecting to or seeking to redact
certain comments German made during the police interview.
These included statements critical of Imperial, the people in
that community, and local law enforcement. We said, “While
German’s comments may have been only minimally relevant,
he does not explain how they were unfairly prejudicial.” 7 We
held that the record was insufficient to address this assignment
of error because appellate counsel is not required on direct
appeal to argue prejudice, and the record does not disclose
trial counsel’s reasons for not objecting to or seeking redaction
of the statements.
7 State v. German, supra note 1, 316 Neb. at 866, 7 N.W.3d at 226.

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STATE v. GERMAN
Cite as 321 Neb. 652
(ii) Motion for Postconviction Relief
German reiterated in his motion for postconviction relief
that trial counsel was ineffective by failing to object to or
move to redact German’s statements in his police interviews,
which statements were critical of Imperial, the people in that
community, and local law enforcement, including comments
that the people in the community were racist and resentful
of his family’s success. He argued the statements were irrel-
evant and unfairly prejudicial because they put German “in an
unfavorable light with the jury.” Thus, they were inadmissible
under Neb. Rev. Stat. §§ 27-401 and 27-403 (Reissue 2016).
German also mentioned that the audio was difficult to hear and
unaccompanied by a transcript, which “confounded the issue
of the unredacted and not relevant statements.” German argued
that the risk of undue prejudice from the statements was high
because the trial took place in a small community and that
“[t]he jury may have felt that [he] was rude, spoiled, [and]
entitled, and lacked empathy to the community in his criticisms
and comments of Imperial and Chase County.”
(iii) Postconviction Order
In denying this claim without an evidentiary hearing, the
district court reasoned that the motion lacked the necessary
specificity on how German was prejudiced from the state-
ments concerning racism, the community, and law enforce-
ment. The court alternatively reasoned that the record and
files affirmatively show German is entitled to no relief, not-
ing that German had ignored the jury selection “in which
race, [German’s] family and the small community were con-
sistent themes for the jurors,” as well as “the instruction that
the jurors are to not allow sympathy or prejudice to influence
their verdict[s].”
(c) Advice on Waiving Right to Testify
Lastly, as relates to claims attempted on direct appeal,
German alleged in his postconviction motion a layered claim

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STATE v. GERMAN
Cite as 321 Neb. 652
concerning advice by trial counsel that led to German’s deci-
sion not to testify in his own defense.
(i) Direct Appeal
Appellate counsel assigned in direct appeal that trial counsel
was ineffective by failing to provide reasonable advice neces-
sary for German to make a meaningful decision to waive the
right to testify. Appellate counsel generally argued that trial
counsel failed to properly explain the relative advantages or
disadvantages of testifying. However, appellate counsel did not
set forth any specific advice that was given or not given. We
held that the claim lacked the specificity required to be consid-
ered on direct appeal.
(ii) Motion for Postconviction Relief
In his motion for postconviction relief, German alleged
appellate counsel was ineffective by failing to adequately
raise on direct appeal that trial counsel was ineffective by
failing to advise him to testify. To add the specificity lacking
on direct appeal, German alleged on postconviction that trial
counsel informed him of his right to testify, but that he told
his trial counsel that testifying would not make any difference
in his case and “[t]rial counsel did not rebut or challenge
[German’s] assertion.” German alleged that it was unreason-
able for trial counsel not to explain with particularity how tes-
tifying would have been beneficial and that he “detrimentally
relied upon trial counsel’s improper advice to not testify.”
German asserted that trial counsel failed to advise him how
presenting this testimony would have given German an oppor-
tunity to contradict the testimony of Carter, Ambrosek, Mann,
and other witnesses and to convince the jury that Carter
assaulted and attacked Swanson.
To further illustrate how testifying would have been benefi-
cial, German asserted in his motion for postconviction relief
that he would have told the jury Carter was angry and jealous
of Swanson, Swanson went voluntarily with him and Carter

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STATE v. GERMAN
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in the car so they could all talk, German later stopped the car
during an argument when Swanson set his hair on fire, and
Swanson then climbed into the front seat, at which point Carter
became angry, pulled Swanson from the car, and assaulted
her, ultimately stepping on her neck. German would have
further testified that “he did not intend to kill [Swanson] and
did not know what Carter’s intent was when she was harming
and assaulting [Swanson]”; to the contrary, he tried to revive
Swanson but could not, so he put her in the trunk. He would
have testified he was relieved when he heard her cough and
move and stopped the car and helped her out. He would have
testified that Carter directed Swanson to drink something,
which “turned out to be windshield wiper fluid.” German
would have testified he then dropped Swanson off on his par-
ents’ land, to avoid another confrontation, and told Swanson to
either wait in the culvert, which he thought of as a safe place,
or walk to a nearby house. Also, German alleged testifying
would have “provided an opportunity for [him] to explain why
he said what he said in his interview with police and why he
seemingly disparaged the community and its people.” He did
not elaborate on this last point.
(iii) Postconviction Order
In its order denying postconviction relief without an eviden-
tiary hearing, the district court reasoned that German had failed
to explain how the testimony he would have given would have
changed the outcome of the trial. Further, German stated dur-
ing the documented discussion regarding waiving his right to
testify that he was not pressured by counsel and had made on
his own the decision not to testify, which statement, the court
said, “contradicts his position in this Motion.” Finally, the
court found that, like the petitioner in State v. Golyar, 8 German
failed to allege how trial counsel’s advice not to testify was
unreasonable, given the testimony he could have given.
8 State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).

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3. Claims Made for First Time
on Postconviction
Lastly, German made two layered claims in his motion for
postconviction relief based on appellate counsel’s failure to
raise on direct appeal trial counsel’s failures to adduce evi-
dence of Ambrosek’s alleged past acts of prostitution and of
German’s alleged incapacity because he was not given medica-
tion for his attention deficit disorder (ADD).
(a) Ambrosek’s Alleged Prior Prostitution
(i) Postconviction Allegations
German made a layered claim that appellate counsel was
ineffective by failing to assign and argue on direct appeal that
trial counsel was ineffective by failing to adduce evidence
that Ambrosek had engaged in acts of prostitution before the
events of November 12 and 13, 2019. German set forth in his
motion, “Assuming trial counsel was aware that [Ambrosek]
had provided sexual services” in exchange for things of
value, trial counsel was ineffective by not trying to adduce
this at trial.
German reasoned he was prejudiced because the jury likely
assumed the prospect of being a prostitute was “terrifying”
for Ambrosek, “mak[ing her more] sympathetic to the jury”
and providing an explanation as to why Ambrosek “acted the
way she did and would support the charge of kidnapping or
false imprisonment.” German summarized that “the fact that
[Ambrosek] had been a prostitute before likely would have
impacted the jury much differently and not seemed as so ter-
rifying, and certainly the jury would not think it was terrifying
to [Ambrosek].”
Regarding trial counsel’s knowledge of Ambrosek’s past
acts of prostitution for drugs, German elaborated he “believes
he told his trial attorney(s) about [Ambrosek] providing sexual
services . . . but he is not certain.” Nevertheless, he con-
tended it was “safe to assume” that trial counsel was aware of
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trial counsel was aware of sexual recordings subject to a
“revenge porn situation” between Ambrosek and “her former
lover,” which stemmed from the fact that Ambrosek “had
recorded herself in sexual activity and provided the recording
to others.”
German made no allegations concerning appellate counsel’s
knowledge of Ambrosek’s past acts of prostitution. Instead,
German generally alleged that an appellate attorney of ordi-
nary training and skill would have specifically assigned and
alleged how trial counsel’s failure to adduce such evidence
was ineffective, and that he was prejudiced.
(ii) Postconviction Order
In denying postconviction relief without an evidentiary hear-
ing, the district court said that “even if such evidence would
be admissible, the Court finds that it would not constitute a
denial of [German’s] constitutional rights or that the absence
of alleged evidence would render the judgment in this case
void or voidable.”
(b) Mental Competency Without ADD Medication
(i) Postconviction Allegations
German alleged a layered claim that appellate counsel was
ineffective by failing to raise on direct appeal trial counsel’s
failure to challenge German’s competency when he was not
provided the medication prescribed for his ADD, asserting
he had informed trial counsel that “he had ADD and that he
needed medication to be able to concentrate in order to fol-
low the course of the trial and to make decisions regarding the
defense of his case.” He also alleged he told trial counsel that
he “felt overwhelmed by the stress of the case against him.” He
alleged trial counsel knew he was not being provided with his
prescribed medication while being housed at the county jail.
German alleged that a practical consequence of his inability
to make decisions regarding the defense of his case was his
decision not to testify in his own defense. German alleged he

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felt “frozen during the trial” and was unable to make decisions
such as whether to testify in his own defense. He asserted that
if he had been taking his medication, he would have testified
in his own defense and told the jury about his tendency to
“shut down when confronted with conflict or stressful situa-
tions,” which allegedly explained why he did not intervene or
confront Carter when she was assaulting Swanson.
While German generally alleged that “[a]n appellate attor-
ney of ordinary training and skill would have specifically
assigned and specifically alleged how trial counsel’s failure to
take appropriate efforts that [German] received his prescribed
medication was ineffective,” and he generally alleged he was
prejudiced, German did not allege whether appellate counsel
knew (1) he had ADD, (2) he was not given his medications
during the trial, or (3) not taking his ADD medication materi-
ally affected his ability to make decisions.
(ii) Postconviction Order
In denying postconviction relief without an evidentiary
hearing on this claim, the district court reasoned that there
was no evidence to suggest German did not understand what
was occurring at trial, and that therefore, “based on the evi-
dence and case law,” it was denying the claim. Elaborating on
the lack of evidence, the court said in entirety:
There is no evidence to suggest that the failure of
[German] to take this medication during trial prevented
him to understand what was occurring at his trial. Nothing
was noted by defense counsel or the Court that [German]
was not actively engaged with his counsel at all times.
The Court finds based on the evidence and case law, an
evidentiary hearing is denied on this claim.
4. Cumulative Deficient Performance
Finally, German alleged in his motion for postconviction
relief that his convictions and sentences were void or void-
able due to the cumulative effect of the alleged acts of defi-
cient performance.

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Having found that none of the other claims individually
warranted an evidentiary hearing, the district court denied
this claim.
III. ASSIGNMENTS OF ERROR
German assigns that the district court erred by denying
his request for an evidentiary hearing on the claims that “his
counsel” (1) did not advise him to testify, (2) was ineffec-
tive by failing to redact portions of his interview with law
enforcement, (3) failed to “appreciate his mental health and
medication needs and its [sic] impact on his participation” in
his trial, and (4) failed to adduce evidence “regarding a key
witness raised in his verified motion for postconviction relief.”
He also assigns the district court erred by denying his request
for an evidentiary hearing on the claims that on the kidnapping
charge, his trial counsel failed to request a jury instruction
that required the jury to find whether Swanson was released
or liberated alive, and that when the jury convicted him of the
second degree murder charge, appellate counsel was ineffective
by failing to argue the court’s instruction on aiding and abet-
ting did not require the jury to find that Swanson was released
or liberated alive.
IV. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appellate
court reviews de novo a determination that the defendant failed
to allege sufficient facts to demonstrate a violation of his or her
constitutional rights or that the record and files affirmatively
show that the defendant is entitled to no relief. 9
[2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law which is reviewed
independently of the lower court’s ruling. 10
9 State v. Goynes, 318 Neb. 413, 16 N.W.3d 373 (2025).
10 State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020).

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[3] A correct result will not be set aside merely because
the lower court applied the wrong reasoning in reaching
that result. 11
V. ANALYSIS
[4] 	Postconviction 	relief, 	described 	in 	Neb. 	Rev. 	Stat.
§ 29-3001 (Cum. Supp. 2024), is a very narrow category of
relief, available only to remedy prejudicial constitutional vio-
lations that render the judgment void or voidable. 12 Section
29-3001(1) states that postconviction relief is available for
“such a denial or infringement of the rights of the prisoner as
to render the judgment void or voidable under the Constitution
of this state or the Constitution of the United States.”
Section 29-3001(1) further states that the inmate “may file
a verified motion, in the court which imposed such sentence,
stating the grounds relied upon and asking the court to vacate
or set aside the sentence.” Section 29-3001(2), in turn, gives
the right to an evidentiary hearing on the motion “[u]nless
the motion and the files and records of the case show to the
satisfaction of the court that the prisoner is entitled to no
relief . . . .”
[5,6] We have explained that the allegations in a motion for
postconviction relief must be sufficiently specific for the dis-
trict court to make a preliminary determination as to whether
an evidentiary hearing is justified. 13 A postconviction motion
that lacks the specific factual allegations necessary to support
the claims made is no more than a fishing expedition for evi-
dence that might aid in obtaining postconviction relief and is
therefore insufficient to warrant an evidentiary hearing. 14
[7-9] But an evidentiary hearing is required on a motion
for postconviction relief containing specific factual allegations
11 State v. Devers, 313 Neb. 866, 986 N.W.2d 747 (2023).
12 See State v. Keadle, 320 Neb. 583, 28 N.W.3d 524 (2025).
13 State v. Goynes, supra note 9.
14 Id.

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that, if proved, constitute an infringement of the movant’s
rights under the Nebraska or federal Constitution—unless
the records and files affirmatively show that the defendant
is entitled to no relief. 15 In summary, an evidentiary hear-
ing is required on a motion for postconviction relief unless
(1) the motion does not contain factual allegations that, if
proved, constitute an infringement of the movant’s constitu-
tional rights rendering the judgment void or voidable; (2) the
motion alleges only conclusions of fact or law without sup-
porting facts; or (3) the records and files affirmatively show
that the defendant is entitled to no relief. 16 In the absence of
alleged facts that would render the judgment void or voidable,
the proper course is to overrule a motion for postconviction
relief without an evidentiary hearing. 17
[10] Under the category of the records and files affirma-
tively showing the defendant is entitled to no relief, it is
proper to overrule the motion without an evidentiary hear-
ing when the claims in the motion are procedurally barred.
A motion for postconviction relief cannot be used to secure
review of issues which were or could have been litigated on
direct appeal, no matter how those issues may be phrased
or rephrased. 18
[11,12] Ordinarily, the issue of trial counsel’s alleged inef-
fectiveness will be procedurally barred when a defendant’s
trial counsel is different from his or her counsel on direct
appeal and the defendant does not raise on direct appeal any
issue of trial counsel’s ineffective performance which is known
to the defendant or is apparent from the record. 19 Claims of
15 See id.
16 Id.
17 State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018).
18 See, State v. Parnell, supra note 10; State v. Williams, 259 Neb. 234, 609
N.W.2d 313 (2000).
19 See State v. Parnell, supra note 10.

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ineffective assistance of appellate counsel, on the other hand,
may be raised for the first time on postconviction review. 20
[13-15] An ineffective assistance of counsel claim is not
procedurally barred if it was raised on direct appeal but
not expressly or necessarily decided on the merits. 21 In con-
trast, we apply principles analogous to claim preclusion on
postconviction actions to bar relitigating any issues directly
addressed or necessarily included in our decision on direct
appeal of the inmate’s convictions and sentences. 22 The law is
well settled that “[a] defendant ‘cannot use a motion for post-
conviction relief to collaterally attack issues that were decided
against him on direct appeal.’” 23
1. Procedurally Barred Claims
We agree with the district court that German’s postconvic-
tion claims revolving around the instructions given at trial are
procedurally barred. Regardless of whether appellate counsel
clearly argued a connection between the allegedly erroneous
aiding and abetting instruction and the allegedly errone-
ous kidnapping instruction, we will not revisit our holding
on direct appeal that the aiding and abetting instructions
were correct statements of the law and consistent with the
requirement in Ramsay that an aider and abettor must have
either possessed the required intent or known the perpetrator
possessed the required intent. 24 In fact, we “discern[ed] no
significant difference” between the instruction given and the
one trial counsel tendered. 25
German continues to fixate on the aspect of the instruction
stating that “[m]ere encouragement or assistance is sufficient.”
20 State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
21 See State v. York, 273 Neb. 660, 731 N.W.2d 597 (2007).
22 See id. See, also, State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022).
23 State v. Thorpe, 290 Neb. 149, 155, 858 N.W.2d 880, 887 (2015).
24 See State v. Ramsay, supra note 2.
25 State v. German, supra note 1, 316 Neb. at 858, 7 N.W.3d at 222.

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German ignores that the trial court also instructed, as an ele-
ment of aiding and abetting, that he must be found to have
“intentionally encouraged or intentionally helped another per-
son to commit the crime” and “intended that the crime be
committed” or “knew that the other person intended to commit
the crime” and, finally, further instructed that “mere presence,
acquiescence, or silence is not enough.” As we explained on
direct appeal, the jury could not have found, under an aid-
ing and abetting theory, that German was guilty of second
degree murder as the predicate felony for kidnapping unless
it also found that German himself killed Swanson intention-
ally, but without premeditation or provocation, or that German
intentionally encouraged or intentionally helped Carter kill
Swanson while knowing Carter intended without premeditation
or provocation to kill Swanson.
We will also not revisit our holding that the jury’s verdict
on second degree murder meant German was not harmed
by the trial court’s failure to instruct the jury to determine
whether Swanson was “voluntarily released or liberated alive
by [German] and in a safe place without having suffered seri-
ous bodily injury” and, thus, that it was unnecessary to decide
the various arguments German made as to why the district
court erred by not giving this § 28-313(3) instruction. Ignoring
the qualifier contained in § 28-313(3) that Swanson must
have been released or liberated “without having suffered seri-
ous bodily injury,” German mistakenly focuses on Swanson’s
being alive when “released or liberated.” He asserts that “[s]he
could have climbed out of” the culvert. 26 There was no evi-
dence Swanson was already dead when German and Carter
left her in the culvert, but there was substantial evidence that
either German or Carter inflicted blunt-force head injuries
upon Swanson and forced her to ingest methanol before they
“released or liberated” her and that those acts, not the metham-
phetamine alone, were the proximate cause of her death.
26 Brief for appellant at 29.

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As we stated on direct appeal, it necessarily follows from
the jury’s verdict against German on second degree murder
that the jury found Swanson was not released or liberated into
the culvert alive in a safe place without having suffered seri-
ous bodily injury. The jury also necessarily found German was
legally responsible for this serious bodily injury leading to
Swanson’s death and rejected German’s defenses that Carter
was solely responsible or that Swanson died solely from a
methamphetamine overdose.
German’s allegations in his motion for postconviction relief
pertaining to the instructions are an impermissible attempt to
collaterally attack issues decided against him on direct appeal.
German cannot avoid this by way of newly framing the alleged
error as ineffective assistance by not moving for a new trial or
by any other reframing of the issues. As explained by second-
ary authority:
A petitioner for postconviction relief cannot escape the
effect of claim preclusion merely by using different lan-
guage to phrase an issue and define an alleged error;
where an issue, although differently designated, was
previously considered and determined upon a criminal
defendant’s direct appeal, the state may defend against
defendant’s postconviction relief petition on grounds of
prior adjudication or res judicata. 27
For all the arguments revolving around the instructions, the
underlying alleged error is the alleged failure to instruct
the jury to determine if Swanson was safely released. German
cannot escape the preclusive effect of our holding on direct
appeal that, because the jury necessarily found either that
German himself killed Swanson intentionally or that German
intentionally encouraged or intentionally helped Carter kill
Swanson while knowing Carter intended to kill Swanson, the
jury necessarily found Swanson was not released or liberated
27 39 Am. Jur. 2d Habeas Corpus § 171 at 474-75 (2019).

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alive by German in a safe place without having suffered seri-
ous bodily injury.
2. Preserved Claims of Ineffective
Assistance of Trial Counsel
The remaining allegations in the motion for postconviction
relief are not procedurally barred, but we ultimately find they
fail either because they lack specificity or because the specific
allegations, even if true, do not demonstrate German’s con-
victions were void or voidable. Other than the allegation that
trial counsel was ineffective by not objecting to or requesting
redaction of the police interview statements, which was suf-
ficiently raised on direct appeal but not decided, these remain-
ing allegations involve layered claims that appellate counsel
was ineffective.
[16] Like a claim of ineffective assistance of trial counsel,
a claim of ineffective assistance of appellate counsel has two
prongs, deficient performance and prejudice. These can be
addressed in any order, and a court need not examine both
prongs if a defendant fails to demonstrate either. 28
[17,18] To show deficient performance, an inmate alleging
a layered claim of ineffective assistance of appellate counsel
must allege sufficient facts that, if proved, would demonstrate
appellate counsel was objectively unreasonable in failing to
discover and raise a nonfrivolous issue on direct appeal. 29
A motion for postconviction relief based on appellate coun-
sel’s failure to raise on direct appeal trial counsel’s allegedly
deficient conduct fails when it does not allege that appellate
counsel knew or should have known to raise the issue. 30
[19-21] To show prejudice from the alleged deficient con-
duct of appellate counsel, an inmate on postconviction must
28 See State v. Keadle, supra note 12.
29 See Smith v. Robbins, 528 U.S. 259, 120 S. Ct. 746, 145 L. Ed. 2d 756
(2000). See, also, State v. Betancourt-Garcia, 310 Neb. 440, 967 N.W.2d
111 (2021).
30 See State v. Betancourt-Garcia, supra note 29.

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allege supporting facts for the assertion that raising the issue
on direct appeal would have changed the outcome. 31 The
inmate must show a reasonable probability that, but for his or
her appellate counsel’s failure to properly raise the issue on
appeal, the result of the appeal would have been different. 32
If trial counsel was not ineffective, then the defendant was
not prejudiced by appellate counsel’s failure to raise on direct
appeal the issue of trial counsel’s ineffectiveness. 33
(a) Failure to Seek Redaction
of Interview Statements
While we find that German stated sufficiently specific
supporting facts for his layered claim regarding his police
interview statements, the trial record conclusively shows that
German was not prejudiced, even assuming these specific
allegations to be true. As the district court indicated, the jury
is presumed to have followed the instruction to not “allow
sympathy or prejudice to influence [its] verdict.” It is an estab-
lished proposition of law that jurors are presumed to follow
their instructions unless evidence to the contrary is shown. 34
German alleged what comments should have been redacted
and alleged that he was prejudiced because those comments
portrayed him in an unfavorable light such that “[t]he jury
may have felt that [he] was rude, spoiled, [and] entitled, and
lacked empathy to the community in his criticisms and com-
ments of Imperial and Chase County.” German did not allege
that any of the jurors would testify that their verdicts were
influenced by an impression, from the unredacted statements,
of German as being rude, spoiled, and entitled. Mere specula-
tion as to the jurors’ impressions of German’s opinions, based
31 See State v. Parnell, supra note 10.
32 See Smith v. Robbins, supra note 29. See, also, State v. Parnell, supra note
10.
33 See State v. Parnell, supra note 10.
34 State v. Price, 320 Neb. 1, 26 N.W.3d 70 (2025).

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on the police interview statements, is not enough to overcome
the presumption that the jurors followed the instruction to not
allow prejudice to influence their verdicts.
(b) Failure to Advise German to Testify
[22] In our de novo review, we also find that German failed
to allege a layered allegation based on defense counsel’s
failure to advise him to testify on his own behalf. Defense
counsel’s advice to waive the right to testify can present a
valid claim of ineffective assistance in two instances: (1) if
the defendant shows that counsel interfered with his or her
freedom to decide to testify or (2) if counsel’s tactical advice
to waive the right was unreasonable. 35 German did not allege
counsel interfered with his freedom to decide whether to tes-
tify, and German confirmed on the trial record that it was his
decision not to testify. He instead set forth allegations falling
under the umbrella of the reasonableness of his trial counsel’s
tactical advice.
German’s allegation that testifying would have given him an
opportunity to explain his police interview statements was too
broad and conclusory to satisfy the specificity requirements
for stating a claim for postconviction relief. German was more
specific regarding what he would have testified to had he not
heeded trial counsel’s allegedly unreasonable tactical advice.
And, read generously, German indicated that trial counsel was
aware of his version of events that he would have testified to.
Nevertheless, German did not allege in his motion what, if
anything, appellate counsel knew or should have known about
any of the described testimony German allegedly would have
given had he testified in his own defense. Similarly, German
made no allegations concerning his appellate counsel’s knowl-
edge of the discussions between German and his trial counsel
respecting the decision to testify.
Leaving aside the dubious nature of German’s version of
events that he would have testified to but for trial counsel’s
35 See State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).

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advice, without alleging appellate counsel knew or should have
known what German’s testimony would have been and what
the discussions with trial counsel were regarding German’s
decision not to testify, German could not allege appellate
counsel’s ineffectiveness in failing to challenge trial counsel’s
allegedly ineffective advice. This is especially true where the
trial record, which would have been examined by appellate
counsel, documented that German had repeatedly discussed
with his trial counsel whether to testify and that German had
determined it was the better course not to. German failed to
set forth sufficient facts that would demonstrate appellate
counsel was deficient by failing to discover a nonfrivolous
argument to be raised on direct appeal.
(c) Competency
For similar reasons, we agree with the district court’s con-
clusion that German failed to allege layered allegations for
ineffective assistance centering around his alleged mental inca-
pacity due to lack of medication. We find that this claim had
the requisite specificity, and because German was not granted
an evidentiary hearing, he has not had the opportunity to show
that a lack of medication prevented him from understanding
what was occurring at trial. But even if that were true, German
alleged no facts that would show appellate counsel knew or
should have known to raise on appeal trial counsel’s failure to
challenge his competency.
(d) Ambrosek’s Alleged Past Acts of Prostitution
German’s layered assertion that trial counsel should have
attempted to adduce Ambrosek’s alleged past acts of pros-
titution likewise fails. German did not allege that appellate
counsel knew or should have known Ambrosek had allegedly
exchanged sex for drugs before the events in question. He did
not even allege that trial counsel knew or should have known
of such acts; his allegation that trial counsel should have
inferred such acts from Ambrosek’s sexual relations with Mann
or sexual recordings is unpersuasive.

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[23,24] 	Furthermore, 	even 	if 	trial 	counsel 	knew 	of
Ambrosek’s alleged sexual history, trial counsel was not inef-
fective by failing to proffer such evidence at trial, and thus,
German was not prejudiced by appellate counsel’s failure to
raise on direct appeal the issue of trial counsel’s ineffective-
ness in that regard. We have explained that, as a matter of
law, counsel is not ineffective for not attempting to adduce
inadmissible testimony. 36 Evidence which is not relevant is
inadmissible. 37 Under § 27-401, “[r]elevant evidence means
evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” We generally disagree with German’s supposition
that it would be less “terrifying” for Ambrosek to be forced
to do what she had previously done voluntarily. Regardless,
any prior acts by Ambrosek of exchanging sex for drugs do
not make it less probable that German abducted Ambrosek to
coerce her into repaying him through similar sex acts. If any-
thing, such evidence would make it more likely that German
abducted Ambrosek with that purpose in mind.
VI. CONCLUSION
Because we find that German failed to allege sufficient
facts for any of the individual acts of ineffective assistance of
counsel alleged in the motion for postconviction relief, we also
find he failed to sufficiently allege facts to support his asser-
tion of cumulative deficient performance. For the foregoing
reasons, we affirm the denial, without an evidentiary hearing,
of German’s motion for postconviction relief.
Affirmed.
Bergevin, J., not participating.
36 State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021).
37 State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018).