State v. Cook, A-16-923

On Jan. 2–5, 2016, 4-year-old Alicia was found dead of hypothermia after living in a cold, sparsely furnished house; Cook (caretaker) had custody by notarized agreement and also cared for a 2‑year‑old.
Cook admitted she did not check on Alicia for many hours, found her nearly naked and unresponsive around 12:45 a.m., attempted limited warming measures, did not seek medical care, wrapped the child and hid the body in a closet under the stairs, and carried on normal activities for two days.
Autopsy by Dr. Elieff concluded cause of death was hypothermia; toxicology and organ exams showed no other cause; external scars suggested prior injuries but were not causal.
Experts (Drs. Elieff and Haney) testified hypothermia in children is treatable and that a reasonable person would seek medical care; Dr. Haney opined a 90–95% chance Alicia would have survived with prompt care. Defense expert had limited hypothermia expertise.
The district court (bench trial) convicted Cook of intentional child abuse resulting in death under Neb. Rev. Stat. § 28‑707(6); Cook moved for new trial and appealed alleging insufficient evidence and ineffective assistance of counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence to convict of intentional child abuse resulting in death	Evidence showed Cook intentionally or knowingly deprived Alicia of necessary care (clothing, shelter, medical attention) causing death	Cook argued the court relied on pre‑12:45 a.m. acts despite State focusing on post‑discovery conduct; also argued furnace outage was intervening/proximate cause	Viewing evidence in prosecution's favor, a rational fact‑finder could find elements beyond a reasonable doubt; conviction affirmed
Ineffective assistance of counsel	Trial counsel failed to object to/limit prejudicial evidence, opened door to damaging testimony, inadequately cross‑examined experts, and retained an inadequate defense expert	State: record does not show counsel’s performance was deficient or that Cook was prejudiced on the issues properly preserved for direct appeal	Court found no deficient performance or prejudice on matters reviewable on the record; remaining claims lacking record preserved for postconviction review

State v. McCurry, 296 Neb. 40 (standard for sufficiency review: view evidence in light most favorable to prosecution)
State v. Jenkins, 294 Neb. 475 (appellate court defers to fact‑finder on credibility and weight of evidence)
State v. Loding, 296 Neb. 670 (standards for raising ineffective‑assistance claims on direct appeal)
State v. Molina, 271 Neb. 488 (child‑abuse‑resulting‑in‑death requires intent to commit abuse, not intent to kill)
State v. Ash, 293 Neb. 583 (Strickland standard applied in Nebraska)
State v. Williams, 295 Neb. 575 (prejudice prong requires reasonable probability of a different outcome)
State v. Thompson, 278 Neb. 320 (bench‑trial evidentiary errors not reversible if other admissible evidence supports findings)
State v. Robinson, 271 Neb. 698 (erroneous admission harmless when evidence is cumulative and verdict supported by admissible evidence)