Forfeiture, Not Waiver: Nebraska Clarifies Preservation of Prosecutorial‑Misconduct Mistrial Claims in State v. Hagens

Introduction

In State v. Hagens, 320 Neb. 65 (2025), the Nebraska Supreme Court affirmed convictions and sentences for first degree sexual assault of a child and incest, arising from an April 27, 2023 incident involving the defendant’s six‑year‑old daughter. The appeal presented multiple issues: sufficiency of the evidence (focusing on sexual penetration), admissibility of hearsay, alleged prosecutorial misconduct premised on questions implying a separate sexual assault, sentencing excessiveness, and several claims of ineffective assistance of counsel (IAC).

The Court’s most consequential doctrinal development is procedural: it expressly refined the preservation rule for claims of prosecutorial misconduct based on failure to request a mistrial. The Court held that a party who fails to timely move for a mistrial on the basis of prosecutorial misconduct forfeits the claim on appeal; unpreserved claims are reviewed only for plain error. In doing so, the Court disapproved earlier cases to the extent they spoke in terms of “waiver” rather than “forfeiture.”

Substantively, the Court held the child’s testimony—corroborated by surrounding circumstances—was sufficient evidence of sexual penetration; any hearsay admitted over objection was cumulative of trial testimony and therefore harmless; the isolated, unanswered questions suggesting other-acts evidence did not constitute plain error; the sentences were within statutory limits and not an abuse of discretion; and most IAC claims failed on the existing record, with two reserved for postconviction because the record was insufficient.

Summary of the Opinion

Sufficiency of the evidence: The victim’s testimony that the defendant touched her “private parts” on the inside and outside, coupled with contextual corroboration (defendant leaving the bedroom in the early morning, the child’s prompt disclosure, and observed redness), permitted a rational jury to find sexual penetration beyond a reasonable doubt under Neb. Rev. Stat. § 28‑318(6).
Hearsay: Even assuming certain statements were hearsay, their admission was harmless beyond a reasonable doubt because they were cumulative of the victim’s in-court testimony and other competent evidence.
Prosecutorial misconduct and preservation: The Court articulated a clarified rule: failing to timely move for a mistrial based on alleged prosecutorial misconduct forfeits the claim; appellate review is limited to plain error. Applying that standard, there was no plain error because objections were sustained, the witnesses never answered the challenged questions, and the jury was instructed that questions are not evidence and not to speculate.
Sentencing: Sentences of 40–50 years (sexual assault) and a consecutive 15–20 years (incest), within statutory ranges, were not an abuse of discretion. The sentencing judge appropriately weighed the presentence investigation, the defendant’s criminal history, and the circumstances of the offense.
Ineffective assistance of counsel:
- Claims tied to hearsay preservation failed for lack of Strickland prejudice (any error was harmless).
- Claim that counsel failed to timely subpoena home-camera footage failed for lack of prejudice (provider’s 60‑day retention had expired and the home cameras were off).
- Claim that counsel failed to “call his witnesses” was insufficiently specific for review on direct appeal.
- Two claims were reserved for postconviction due to an insufficient record: (i) counsel’s advice that the defendant not testify, and (ii) counsel’s failure to move for a mistrial/request a curative instruction after references to another incident.
Concurring note on other‑acts evidence: A concurrence emphasized best practice: prosecutors should raise evidence they regard as “inextricably intertwined” outside the jury’s presence and obtain admissibility rulings under rules 404 and 414 before inquiring in front of the jury.

Analysis

Precedents and Authorities Cited and Their Role

Standards on sufficiency: State v. Dat, 318 Neb. 311, and State v. Perry, 318 Neb. 613, reiterate that appellate courts view evidence most favorably to the State and do not reweigh credibility. The Court applied these principles to accept the jury’s assessment of the child’s testimony and related corroboration.
Hearsay standards and harmless error: State v. Boswell, 316 Neb. 542 (clear error for factual underpinnings; de novo for hearsay rulings), State v. Sawyer, 319 Neb. 435 (definition of hearsay and harmlessness of cumulative evidence), and State v. Lear, 316 Neb. 14 (no need to address unnecessary issues) guided the Court’s approach: even assuming hearsay, the content was cumulative and thus any error was harmless beyond a reasonable doubt.
Plain-error doctrine and prosecutorial misconduct preservation: Building on State v. Mabior, 314 Neb. 932 (plain-error framework), State v. Barnes, 317 Neb. 517, and State v. Gleaton, 316 Neb. 114, the Court formally adopted and clarified that failure to move for a mistrial on asserted prosecutorial misconduct constitutes forfeiture, with review limited to plain error. The Court explicitly disapproved prior cases to the extent they used “waiver” language (e.g., State v. Price, State v. Mrza, State v. Cotton, State v. Smith, State v. Custer, State v. Stricklin, State v. Robinson, State v. Lotter, State v. Wilson) and Court of Appeals decisions relying on them.
Rules 404 and 414 procedure: Neb. Evid. R. 404 and 414 require, inter alia, a clear‑and‑convincing showing outside the jury’s presence before admitting other-acts or other sexual assaults evidence. The majority noted those procedural requirements to illustrate why the challenged questioning should have been handled out of the jury’s hearing. The concurrence cited State v. Lee, 304 Neb. 252, State v. Mabior, and State v. Wisinski, among others, on “inextricably intertwined” evidence, and highlighted Neb. Evid. R. 103(3)’s admonition to avoid suggesting inadmissible evidence to the jury.
Sentencing review: State v. Rezac, 318 Neb. 352; State v. Sutton, 319 Neb. 581; State v. Lara, 315 Neb. 856; and State v. Morton, 310 Neb. 355 confirmed the deferential abuse‑of‑discretion standard for sentences within statutory ranges and the subjectivity inherent in weighing offender and offense characteristics.
Ineffective assistance and direct‑appeal posture: The decision applied Strickland v. Washington and Nebraska’s direct‑appeal framework from State v. Parks, 319 Neb. 773; State v. Sawyer; State v. Vazquez, 319 Neb. 192; and State v. German, 316 Neb. 841—requiring particularized assignments, deference to presumed strategy, and resolving only those claims conclusively established by the existing record.
Mistrial and curative measures: The Court cited State v. Rush, 317 Neb. 622 (mistrial standard); State v. Ramos, 319 Neb. 511 (prejudice requirement); and State v. Lenhart, 317 Neb. 787 (presumption juries follow instructions; effect of sustained objections) to hold there was no plain error where objections were sustained, no answers given, and jurors were instructed appropriately.

Legal Reasoning

On sufficiency, the Court anchored its analysis in § 28‑318(6)’s expansive definition of “sexual penetration”—including “any intrusion, however slight” of any body part into the genital opening for nonmedical purposes. The victim’s direct testimony that the defendant touched her “on the inside” and her demonstration of finger movement, combined with the mother’s observations and sequence of events, supported the jury’s finding. The Court refused to reweigh credibility or resolve alleged inconsistencies, which are for jurors to determine.

On hearsay, the Court assumed without deciding that certain statements (child to mother; statements recounted to the detective) were hearsay. It nevertheless found their admission harmless beyond a reasonable doubt because the same point—sexual penetration by the defendant—was established through the child’s in-court testimony and other competent evidence. Nebraska’s harmless‑error doctrine treats erroneously admitted or excluded cumulative evidence as harmless where other competent proof supports the conviction.

On prosecutorial misconduct, the Court addressed preservation. It formally adopted a forfeiture rule: a defendant who does not timely move for a mistrial on alleged prosecutorial misconduct forfeits the claim; appellate review is confined to plain error. Applying that standard, the Court declined to decide whether the two questions implying a separate incident were misconduct because, in any event, there was no plain error: defense objections were sustained, the witnesses never answered, and the jury was specifically instructed that questions are not evidence and not to speculate about excluded matters. The presumption that juries follow instructions was unrebutted.

On sentencing, the Court emphasized that both sentences fell within statutory limits and that the judge considered the presentence report (including an extensive criminal history) and the trial record. The Court rejected comparative sentencing arguments as impractical and outside the appellate role. No abuse of discretion appeared.

On IAC:

Hearsay preservation IAC: Because any hearsay error was harmless, the defendant could not show a reasonable probability of a different outcome; no Strickland prejudice.
Untimely subpoena for home camera footage: The provider had a 60‑day retention period and content older than that was permanently deleted; moreover, the home cameras were uncontrovertedly off at the time. Prejudice could not be shown.
Failure to call unspecified witnesses: Insufficiently particular to be reviewed on direct appeal.
Advice not to testify: The record showed the defendant personally waived his right to testify but did not reveal the content or reasonableness of counsel’s advice. Because an IAC claim can lie if counsel interfered with the decision or gave unreasonable tactical advice, and the record lacked necessary detail, the Court held the record insufficient and deferred the claim to potential postconviction proceedings.
No motion for mistrial/no curative instruction after “other incident” references: Although objections were sustained, the responses were not stricken and no immediate admonition was given; whether failing to seek a mistrial or instruction was reasonable strategy could not be assessed on the record. The Court, applying the presumption of reasonable strategy, found the record insufficient to resolve deficiency and prejudice and deferred this claim as well.

Impact and Forward‑Looking Effects

1) Preservation of prosecutorial misconduct claims is now squarely a forfeiture regime. Defense counsel must timely move for a mistrial to preserve a claim that the trial court erred in not declaring one due to prosecutorial misconduct. Failure to do so forfeits the claim and invites only plain‑error review on appeal. This refinement, and the disapproval of prior “waiver” phrasing, will sharpen trial practice: contemporaneous motions for mistrial and requests for curative instructions will be essential for full appellate review.

2) Prosecutors should raise other‑acts evidence outside the jury’s presence. The concurrence underscores a best practice that aligns with rules 404, 414, and 103(3): litigate admissibility out of the jury’s hearing and secure rulings before asking questions that suggest propensity or “inextricably intertwined” facts. This mitigates mistrial risk and shields the record.

3) Harmlessness where evidence is cumulative. Defense objections to hearsay will not yield reversals when the same facts are proved through live testimony or other competent evidence. Strategic emphasis should shift to (a) limiting instructions at the time of admission, (b) motions to strike, and (c) preserving prejudice arguments where the cumulative label does not fairly describe the overlap.

4) IAC on direct appeal remains narrow. The Court reaffirms that only claims conclusively resolved by the record are decided on direct appeal. Claims involving attorney‑client advice (e.g., testifying decisions) or strategy choices in response to in‑trial events (e.g., mistrial motions, curative requests) typically require extra‑record development, pushing them to postconviction.

5) Sentencing deference persists. High sentences for child sexual assault—where supported by a significant criminal history and aggravating circumstances—are unlikely to be disturbed if within statutory limits and grounded in the presentence report and trial record.

Complex Concepts Simplified

Forfeiture vs. waiver: Waiver is the intentional relinquishment of a known right; forfeiture is the loss of a claim because a party failed to timely assert it. In Hagens, not moving for a mistrial on prosecutorial misconduct resulted in forfeiture, limiting appellate review to plain error.
Plain error: An obvious error on the record that prejudicially affects a substantial right and threatens the integrity or fairness of the judicial process. Appellate courts reserve this for exceptional cases, typically where a miscarriage of justice would otherwise occur.
Cumulative evidence: Evidence that proves the same point already established by other admitted evidence. Erroneous admission or exclusion of cumulative evidence is often harmless.
Harmless error (criminal): An error that does not affect substantial rights or the verdict. Where other competent evidence independently supports a conviction, erroneously admitted cumulative evidence is harmless beyond a reasonable doubt.
“Inextricably intertwined” evidence: Evidence so connected to the charged offense that the State cannot present a coherent narrative without it, and thus not treated as “other‑acts” under rule 404. Nevertheless, prosecutors should vet such evidence outside the jury’s presence before use.
Rules 404 and 414: Rule 404 generally bars propensity evidence of other crimes, wrongs, or acts; rule 414 allows other sexual assault offenses in sex‑crime prosecutions. Both require a clear‑and‑convincing showing outside the jury’s presence prior to admission, and careful relevance and prejudice balancing.
Mistrial: A drastic remedy appropriate when an event during trial is so prejudicial that no admonition or instruction can cure it. To preserve error, counsel must move for a mistrial promptly; otherwise, the claim is forfeited.
Strickland prejudice: In IAC claims, the defendant must show a reasonable probability that the outcome would have been different but for counsel’s deficient performance—a probability sufficient to undermine confidence in the result.
Sexual penetration (Nebraska): Includes any slight intrusion of any part of the body into the genital or anal openings of the victim, undertaken for nonmedical, non‑health, or non‑law enforcement purposes; emission is not required (§ 28‑318(6)).

Practical Guidance for Litigants

Defense counsel:
- Object contemporaneously, request to strike, seek immediate admonitions, and—critically—move for mistrial when alleging prosecutorial misconduct; otherwise, the issue is forfeited and reviewed only for plain error.
- When hearsay is admitted, request limiting instructions if admissible for a non‑truth purpose; develop prejudice beyond “cumulative” overlap.
- Preserve IAC issues with particularity on direct appeal; generic claims (e.g., “failed to call witnesses”) will not be reviewed.
- When advising about testifying, make a clear record where appropriate, but preserve privileged discussions; expect postconviction to be the proper vehicle if advice is later challenged.
Prosecutors:
- Before asking about other acts or prior sexual assaults, seek an out‑of‑presence hearing and obtain rulings under rules 404/414; consider whether the evidence is truly “inextricably intertwined.”
- Heed rule 103(3): avoid suggesting inadmissible evidence through questions in the jury’s hearing.
- When objections are sustained, avoid pressing the point; curative instructions can help minimize appellate issues.
Trial courts:
- Encourage and, where practicable, require pretrial or sidebar vetting of 404/414 issues to prevent undue prejudice.
- When sustaining objections to potentially prejudicial questions, consider immediate admonitions if requested; a timely instruction may obviate mistrial.

Conclusion

State v. Hagens affirms core evidentiary and appellate principles while sharpening preservation doctrine in Nebraska criminal practice. The Court’s explicit shift to a forfeiture paradigm for unasserted mistrial claims based on prosecutorial misconduct aligns procedure with the Court’s recent practice and clarifies expectations for trial counsel: timely mistrial motions and curative requests are essential to preserve full appellate review.

On the merits, the decision underscores that a child‑victim’s detailed testimony can suffice to prove sexual penetration under Nebraska law; that evidentiary missteps may be harmless where the same facts are otherwise competently proved; and that sentencing within the statutory range garners substantial deference. Finally, the opinion reiterates the narrowness of IAC review on direct appeal and the need for postconviction development where attorney advice or strategy is at issue.

The concurrence adds a pragmatic reminder: litigate other‑acts and “inextricably intertwined” evidence outside the jury’s presence. Together, these opinions aim to safeguard trial fairness, streamline appellate review, and provide clearer guidance to Nebraska’s trial bar on preserving and presenting issues that matter.