State v. Lierman, 940 N.W.2d 529

Background

Defendant Darryl Lierman, adoptive father, was charged with multiple counts of first- and third-degree sexual assault of a child and child abuse based on allegations by his adopted daughter B.L.; trial resulted in convictions and an aggregate sentence of 70–140 years.
B.L. alleged abuse beginning about 2010 (ages ~10–14); her disclosures followed a 2015 suicide attempt and subsequent counseling and child‑advocacy interviews.
At the time B.L. first disclosed, Lierman was on bond awaiting trial on separate sexual‑assault allegations by another adopted daughter, A.L.; Lierman was later acquitted in the A.L. prosecution.
The State sought to admit evidence of A.L.’s allegations and other prior sexual‑act evidence under Neb. Rev. Stat. § 27‑414 (prior sexual assault evidence admissible if proved by clear and convincing evidence). The district court held the evidence conditionally admissible and later admitted it at trial.
Lierman raised multiple trial objections on appeal: admission of prior acts (post‑acquittal), exclusion of evidence of B.L.’s alleged unhappiness/online activity, sufficiency of evidence, judge recusal, sentence excessiveness, quashing of subpoenas duces tecum, and several ineffective‑assistance claims.

Issues

Issue	State's Argument	Lierman's Argument	Held
Admissibility of A.L.’s allegations (prior acts)	Evidence of A.L.’s allegations was admissible under § 27‑414 if proved by clear and convincing evidence and survived § 27‑403 balancing	Admission barred by collateral estoppel (Ashe) because Lierman was acquitted in A.L.’s trial	Admission proper: acquittal does not bar § 27‑414 evidence because § 27‑414 uses a lower standard (clear and convincing) than criminal conviction (beyond a reasonable doubt); district court did not abuse discretion in finding clear‑and‑convincing proof and balancing probative value over prejudice
Exclusion of evidence about B.L.’s unhappiness, online/dating activity, bullying	Much of the proposed evidence was irrelevant or barred as specific‑instance impeachment under Neb. Evid. R.; State did not open the door to broader impeachment	These facts explained alternative reasons for suicidal behavior and impeached B.L.’s credibility; State opened the door	No error: court did not abuse discretion—State did not open the door to the specific evidence and some items were barred by rules (e.g., § 27‑412, § 27‑608(2)) or irrelevant
Sufficiency of the evidence	B.L.’s testimony (corroborated in part) sufficed; credibility/resolution of conflicts are for the jury	Evidence was weak, non‑specific, and would not support convictions without A.L. evidence	Evidence sufficient: viewed in light most favorable to prosecution a rational jury could find elements beyond a reasonable doubt
Recusal based on alleged ex parte communications and lack of notice re: immunity for Julie (wife)	No improper ex parte communication occurred; court was not required to notify defendant of prosecutor’s grant of immunity to a witness	Judge had improper ex parte contact and should have recused; defendant entitled to notice of immunity grant	No recusal: communications were scheduling/procedural and not improper ex parte; court not required to give defendant notice of prosecutor‑granted immunity under § 29‑2011.02
Excessive sentence	Sentence within statutory limits and appropriate given multiple offenses and circumstances	Aggregate term (70–140 years) is effectively life given defendant’s age, obesity, health	No abuse of discretion: sentence within statutory limits and court considered sentencing factors
Quashing subpoenas duces tecum for deposition witnesses	Subpoena duces tecum in criminal depositions is limited; defendant failed to identify with specificity documents sought and thus sought a fishing expedition	Criminal depositions should allow subpoenas duces tecum as broad as civil practice	No error: record lacked required specificity and criminal deposition discovery is narrower than civil discovery; quash affirmed
Ineffective assistance of trial counsel (various alleged omissions)	Record is insufficient to resolve many claims on direct appeal; where record suffices, counsel’s conduct not deficient or prejudicial	Counsel failed to call/ask witnesses, pursue driving‑log alibi, move in limine, object to evidence sequence and to suicide‑related evidence	Most claims unresolved on direct appeal for lack of record; where record is sufficient, court rejects the claims (e.g., sequence of proof, admission of suicide attempts not an abuse)

Key Cases Cited

Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel in criminal context; issue preclusion when ultimate fact determined by valid final judgment)
Dowling v. United States, 493 U.S. 342 (1990) (acquittal does not bar government from relitigating an issue in a later proceeding governed by a lower proof standard)
Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor’s obligation to disclose exculpatory evidence)
United States v. Nixon, 418 U.S. 683 (1974) (limits on fishing expeditions for documents via subpoena)
State v. Valverde, 286 Neb. 280 (2013) (treatment of sexual‑assault evidence across jurisdictions)
State v. Kirksey, 254 Neb. 162 (1998) (acquittal is a factor in § 27‑403 balancing but does not automatically bar prior‑act evidence)
State v. Kibbee, 284 Neb. 72 (2012) (prejudice inherent in sexual‑misconduct evidence and analysis under evidentiary rules)
State v. Phillips, 286 Neb. 974 (2013) (court’s limitations regarding notice when prosecutor grants witness immunity)
State v. Stubbendieck, 302 Neb. 702 (2019) (discussing § 27‑403 balancing and admission of relevant evidence)