State v. Prado, 30 Neb. Ct. App. 223

Background

Prado delivered pizza to D.A.’s apartment late night; he returned hours later, entered the bedroom, and lay between D.A. and her friend. D.A. awoke to digital penetration and other sexual contact; she was partially asleep and initially thought the person was her boyfriend.
SANE exam showed vaginal and hymenal abrasions and a neck bruise; DNA from a neck swab matched Prado and Prado could not be excluded as a contributor to semen on underwear.
Prado gave statements to police after being read Miranda rights; police had a brief pre-warning exchange that Prado answered before being Mirandized.
Prado was tried by jury, convicted of first-degree sexual assault, and sentenced to 24–26 years with lifetime community supervision and sex-offender registration.
On appeal Prado raised numerous claims: ineffective assistance of trial counsel (multiple grounds), erroneous postverdict appointment of new counsel, denial of suppression motion (Miranda), admissibility rulings under Neb. Rev. Stat. §§ 27‑414 and 27‑412, insufficiency of evidence, and excessive sentence. The Court affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Prado)	Held
I.A. Ineffective assistance — failure to elicit/testify about alleged request for oral sex	Trial record contained Prado’s testimony about consent-related facts; no prejudice from not eliciting that specific detail	Counsel prevented Prado from testifying that D.A. requested oral sex, depriving him of full defense	Denied — record shows Prado testified to facts supporting consent; no ineffective assistance proven
I.B. Ineffective assistance — failure to cross-examine about alleged oral‑sex request	Cross‑examination would likely be unhelpful; defendant fails to specify how answers would aid defense	Counsel should have confronted D.A. about the alleged oral‑sex request to show consent	Denied — claim insufficiently particular and speculative
I.C. Ineffective assistance — impeachment v. refreshing recollection	Counsel confronted witnesses with prior statements and had them read statements; impeachment would be cumulative	Counsel should have used prior inconsistent statements to impeach rather than refresh	Denied — no prejudice; witnesses were confronted and inconsistencies exposed
Voir dire (Golden Rule)	Question about describing a consensual sexual encounter did not ask jurors to ‘put themselves in victim’s place’	Question improperly invited jurors to identify with victim (Golden Rule)	Denied — question was about juror comfort testifying, not Golden Rule; objection would have been meritless
Motion to suppress (Miranda)	Pre‑Miranda transitional question was not interrogation; later warnings cured any prior innocuous exchange	Pre‑Miranda question elicited incriminating statement, so all post‑Miranda statements should be suppressed	Denied — question was not reasonably likely to elicit incriminating response (Elstad/Innis analysis)
§ 27‑414 (other‑acts) evidence	Prior 2014 attempted sexual‑assault conviction is substantially similar and probative; prejudicial risk did not substantially outweigh probative value	Prior act was too different and unfairly prejudicial	Denied — court didn’t abuse discretion; similarities supported admissibility
§ 27‑412 (rape‑shield) evidence	State did not open the door to victim’s sexual history; texts were not probative of consent to this incident	Exclusion violated confrontation and was relevant to consent/habit/regret	Denied — defendant didn’t preserve or argue alternate subsection; State did not open the door
Sufficiency of evidence	Evidence (victim testimony, injuries, DNA, Prado’s presence/admissions) supports conviction	Victim’s inaction and initial misidentification show consent	Affirmed — evidence, viewed favorably to State, was sufficient to prove nonconsent
Appointment of new counsel postverdict	Trial court acted within discretion after defendant repeatedly requested withdrawal	Appointment prejudiced sentencing because new counsel lacked trial familiarity	Denied — Prado repeatedly asked for counsel removal; he invited the change
Sentence excessive	Sentence within statutory range and court considered Spang factors	Sentence (24–26 years) is excessive	Denied — within statutory limits and not an abuse of discretion

Key Cases Cited

State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (Neb. 2015) (appellate preservation of ineffective‑assistance claims when trial and appellate counsel differ)
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (Neb. 2019) (standard for deciding ineffective assistance on direct appeal)
State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (Neb. 2020) (deficient performance and prejudice framework)
State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (Neb. 2019) (insufficiently pleaded ineffective‑assistance claims treated as unpled)
Oregon v. Elstad, 470 U.S. 298 (U.S. 1985) (post‑Miranda warnings may cure prior voluntary unwarned statements)
Rhode Island v. Innis, 446 U.S. 291 (U.S. 1980) (definition of interrogation for Miranda purposes)
State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (Neb. 2013) (evidentiary admissibility and abuse‑of‑discretion review)
State v. Ildefonso, 262 Neb. 672, 634 N.W.2d 252 (Neb. 2001) (harmlessness of cumulative testimony)
State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (Neb. 1999) (rape‑shield and opening‑the‑door analysis)
State v. Spang, 302 Neb. 285, 923 N.W.2d 59 (Neb. 2019) (factors for sentencing review)