State v. Lierman, 305 Neb. 289

Background

Darryl Lierman (defendant) was convicted of multiple counts of sexual assault of his adopted daughter B.L. and child abuse; sentenced to 70–140 years. B.L. alleged abuse beginning ~2010.
At the time some abuse of B.L. allegedly began, Lierman was on bond awaiting trial on similar allegations made by another adopted daughter, A.L.; Lierman was later acquitted on the A.L. charges.
Prior to trial the State sought to admit A.L.’s allegations and other out-of-county incidents under Neb. Rev. Stat. §27-414 (prior sexual-assault acts admissible if clear and convincing), and the court held the evidence conditionally admissible subject to §27-403 balancing.
Defense sought to introduce evidence (dating-site use, social media, bullying) to undermine B.L.’s credibility; the court excluded much of that as either irrelevant or barred by rules limiting proof of specific sexual behavior.
Lierman raised additional claims on appeal: insufficiency of evidence, judge recusal for alleged ex parte communications and failure to notify about a grant of immunity to Julie (wife), quashing of subpoenas duces tecum, excessive sentence, and ineffective assistance of trial counsel.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Lierman)	Held
Admissibility of A.L.’s prior sexual-assault allegations	Admissible under §27-414 if proved by clear and convincing evidence; acquittal does not bar admissibility because §27-414 uses a lower standard	Acquittal bars relitigation (Ashe collateral estoppel); admission is unfairly prejudicial	Affirmed: acquittal does not preclude §27-414 evidence; court found clear and convincing proof and probative value outweighed prejudice
Evidence of B.L.’s alternative explanations for unhappiness (dating sites, social media, bullying)	State did not open the door to such extrinsic evidence; many items inadmissible under rules limiting proof of specific sexual behavior and relevancy	State opened the door to B.L.’s credibility; defense entitled to probe alternative reasons for suicide attempt	Affirmed: trial court did not err—no opening of the door; exclusions consistent with evidentiary rules
Sufficiency of evidence	B.L.’s testimony and corroborating evidence sufficient for jury to convict	Testimony was weak, inconsistent, lacked date specificity; convictions unsupported without disputed prior-act evidence	Affirmed: viewing evidence in prosecution’s favor, rational juror could find elements beyond reasonable doubt
Recusal for alleged ex parte communication and lack of notice re: immunity	Court’s scheduling contact was not an improper ex parte; statute and precedent do not require defendant notice of prosecutorial grant of immunity	Judge engaged in ex parte communications and should have recused; failure to notify re: Julie’s immunity prejudiced defense	Affirmed: no improper ex parte; court not required to notify defendant of prosecutor’s grant of immunity; recusal not warranted
Subpoenas duces tecum / scope of depositions in criminal cases	Criminal depositions and subpoenas are narrower than civil discovery; court properly quashed fishing-expedition subpoenas	Criminal deposition procedure and §29-1905 make subpoena duces tecum as broad as civil subpoenas; defense entitled to documents	Affirmed: criminal deposition scope limited to witnesses whose testimony is material/relevant to charged elements; subpoenas quashed for lack of specific showing
Ineffective assistance of counsel	Many claims lack record detail to show deficient performance or prejudice on direct appeal; some trial choices were reasonable	Counsel failed to call witnesses, use driving logs for alibi, file motions in limine, object to sequencing, and to exclude suicide evidence	Affirmed overall: record insufficient to resolve many claims on direct appeal; where record exists (order of evidence, admission of suicide attempts) court found no ineffective assistance

Key Cases Cited

Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel principle in criminal cases)
Dowling v. United States, 493 U.S. 342 (1990) (an acquittal does not bar relitigation in later proceedings governed by a lower standard of proof)
State v. Kirksey, 254 Neb. 162 (1998) (prior acquittal is a factor in §27-403 balancing but does not automatically bar admission of underlying acts)
State v. Kibbee, 284 Neb. 72 (2012) (on probative value of repeated sexual assaults and prejudicial nature of such evidence)
State v. Phillips, 286 Neb. 974 (2013) (court’s authority and limitations concerning witness immunity)
State v. Thompson, 301 Neb. 472 (2018) (standards on recusal and ex parte communications)
In re Winship, 397 U.S. 358 (1970) (beyond a reasonable doubt standard for criminal convictions)
United States v. Nixon, 418 U.S. 683 (1974) (limits on fishing-expedition subpoenas)