STATE OF NEBRASKA, APPELLEE, V. WILLIAM ZITTERKOPF, APPELLANT
No. S-23-513
Nebraska Supreme Court
August 9, 2024
317 Neb. 312
Judgments: Pleadings: Plea in Abatement: Appeal and Error. Regarding questions of law presented by a motion to quash or plea in abatement, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court. - Constitutional Law: Statutes: Appeal and Error. The constitutionality of a statute presents a question of law, which an appellate court independently reviews.
- Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement.
- Effectiveness of Counsel: Appeal and Error. In reviewing a claim of ineffective assistance of trial counsel on direct appeal, an appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel‘s performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel‘s alleged deficient performance.
- Constitutional Law: Statutes. Generally, a facial challenge seeks to void the statute in all contexts for all parties. In contrast, an as-applied challenge often concedes the statute is constitutional in some of its applications, but contends it is unconstitutional as applied to the particular facts of the case.
- ___: ___. An as-applied challenge does not seek to void the statute for all purposes, but seeks only to prevent the statute‘s application to the facts before the court.
___: ___. In order to prevail upon a First Amendment facial attack to the constitutionality of a statute, the challenger must show either that every application of the statute creates an impermissible risk of suppression of ideas or that the statute is “substantially” overbroad, which requires the court to find a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court. - Constitutional Law: Statutes: Standing. A party has standing to challenge a statute as overbroad, even if unaffected by the part that punishes protected speech, when the party claims that the statute will significantly compromise the free speech rights of others not before the court.
- ___: ___: ___. Standing to challenge the constitutionality of a statute under the federal or state Constitution depends upon whether one is, or is about to be, adversely affected by the language in question.
- Constitutional Law: Criminal Law. The parameters of the constitutional right to freedom of speech are the same under both the federal and the state Constitutions and both mean that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content and limit the State‘s ability to prosecute certain criminal offenses when such prosecution entails content control involving protected speech.
- Constitutional Law. The free speech protection of the First Amendment is not limited to the spoken or written word but extends to other expressive conduct, including videos and photographs.
- ___: ___. The broad protections afforded by the federal and state Constitutions are not absolute.
- ___: ___. The general rule against government control over the content of speech does not apply to certain well-defined and narrowly limited categories of expression that are unprotected.
- Constitutional Law: Criminal Law: Libel and Slander: Obscenity. Categories of content that can be proscribed include libel, obscenity, incitements to imminent lawlessness, true threats, and fighting words.
- Constitutional Law: Presumptions. A content-based restriction on speech is presumptively invalid and subject to strict scrutiny.
- Constitutional Law. A restriction that is content neutral is subject to an intermediate level of scrutiny.
- ___: ___. Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.
- Constitutional Law: Presumptions: Proof. A content-based restriction on protected speech is presumptively invalid and subject to strict scrutiny, and the State bears the burden to rebut that presumption.
Constitutional Law: Proof. Strict scrutiny requires the government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. - Constitutional Law: Statutes: Proof. When a party does not claim that a challenged law has no valid application, a facial challenge must establish that a substantial number of the law‘s applications are unconstitutional in relation to its legitimate sweep. If shown, this substantial overbreadth invalidates all enforcement of the law. Conversely, the attack fails if the challenger fails to meet this burden.
- Effectiveness of Counsel: Postconviction: Records: Appeal and Error. When a defendant‘s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel‘s ineffective performance which is known to the defendant or is apparent from the record; otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding.
- ___: ___: ___: ___. An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges deficient performance with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to recognize whether the claim was brought before the appellate court.
- Effectiveness of Counsel: Proof: Appeal and Error. When a claim of ineffective assistance of counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel.
- Effectiveness of Counsel: Records: Appeal and Error. Once raised, an appellate court will determine whether the record on appeal is sufficient to review the merits of the ineffective performance claims. The record is sufficient if it establishes either that trial counsel‘s performance was not deficient, that the appellant will not be able to establish prejudice as a matter of law, or that trial counsel‘s actions could not be justified as a part of any plausible trial strategy.
- Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that counsel‘s performance was deficient and that this deficient performance actually prejudiced the defendant‘s defense.
- ___: ___. To show that counsel‘s performance was deficient, the defendant must show counsel‘s performance did not equal that of a lawyer with ordinary training and skill in criminal law.
___: ___. To show prejudice from counsel‘s deficient performance, the defendant must demonstrate a reasonable probability that but for counsel‘s deficient performance, the result of the proceeding would have been different.
Appeal from the District Court for Scotts Bluff County, LEO P. DOBROVOLNY, Judge. Affirmed.
Michael J. Wilson, of Berry Law Firm, for appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph for appellee.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
MILLER-LERMAN, J.
I. NATURE OF CASE
William Zitterkopf appeals his conviction in the district court for Scotts Bluff County for unlawful distribution of an intimate image in violation of
II. STATEMENT OF FACTS
In April 2022, the State charged Zitterkopf with one count of unlawful distribution of an intimate image in violation of
It shall be unlawful for any person to knowingly and intentionally photograph, film, or otherwise record an image or video of the intimate area of any other person without his or her knowledge and consent when his or her intimate area would not be generally visible to the public regardless of whether such other person is located in a public or private place.
The original information also charged one count of tampering with a witness, but that charge was dismissed prior to trial.
The charges against Zitterkopf arose from allegations that in June 2021, he had video recorded a sexual encounter with the victim, L.E., without her knowledge and consent, and in March 2022, he sent to his ex-wife a screenshot from the video recording that showed L.E. nude from the waist down. L.E. and Zitterkopf‘s ex-wife were friends, and in the Zitterkopfs’ divorce proceedings, L.E. had provided an affidavit in support of Zitterkopf‘s ex-wife. Zitterkopf appealed the divorce decree in March 2022. When Zitterkopf sent the screenshot to his ex-wife, he also sent a copy to L.E. with a message stating that she should confess to the judge that she lied in her affidavit.
Prior to trial, Zitterkopf filed a motion to withdraw his plea of not guilty because he “plan[ned] to file a Motion to Quash on 1st amendment grounds.” After the court granted withdrawal of the plea, Zitterkopf filed a motion to quash the charge under
After a hearing, the district court overruled Zitterkopf‘s motion to quash. In its order, the court stated that Zitterkopf‘s primary argument was that
The district court stated that it could invalidate the statute on its face only if the statute‘s overbreadth was substantial, meaning that it was unconstitutional in a substantial portion of the cases to which it applied. The court found that
The court stated that as a content-neutral law,
Zitterkopf thereafter entered a plea of not guilty, and the matter went to trial in April 2023. Witnesses presented by the State included L.E., Zitterkopf‘s ex-wife, and Andrew Soucie, a police officer who investigated this matter. L.E. generally
Soucie testified regarding his investigation of the incident. He testified that he took a report from L.E. and that she reported that she had received a photograph of herself undressing and that she “was unaware of” the photograph and that she “was not aware that it was completed” and “did not give [her] consent.” Soucie was shown the image L.E. received from Zitterkopf, and he testified that it was the photograph that L.E. had shown to him when she reported the incident. Soucie was also shown the image L.E. received from Zitterkopf‘s ex-wife, which displayed a name that was the same as Zitterkopf‘s ex-wife‘s first name. Soucie testified that he was able to identify the person named as Zitterkopf‘s ex-wife. Zitterkopf‘s counsel did not object to these portions of Soucie‘s testimony.
The jury found Zitterkopf guilty of unlawful distribution of an intimate image. The court accepted the verdict and entered judgment against Zitterkopf. The court later sentenced Zitterkopf to probation for 3 years.
Zitterkopf appeals his conviction.
III. ASSIGNMENTS OF ERROR
Zitterkopf claims that the district court erred when it overruled his motion to quash and rejected his constitutional challenge to
IV. STANDARDS OF REVIEW
[1,2] Regarding questions of law presented by a motion to quash or plea in abatement, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court. State v. Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (2020). The constitutionality of a statute presents a question of law, which an appellate court independently reviews. State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023).
[3,4] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. State v. Warner, 312 Neb. 116, 977 N.W.2d 904 (2022). In reviewing a claim of ineffective assistance of trial counsel on direct appeal, an appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel‘s performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel‘s alleged deficient performance. Id.
V. ANALYSIS
1. DISTRICT COURT DID NOT ERR WHEN IT REJECTED ZITTERKOPF‘S CONSTITUTIONAL CHALLENGE TO § 28-311.08(3) AND OVERRULED HIS MOTION TO QUASH
Zitterkopf first claims that the district court erred when it overruled his motion to quash and rejected his constitutional challenge to
[5,6] We have recognized that a constitutional challenge may be made either as a facial challenge to the statute or as a challenge to the application of the statute to a specific person in a specific case. We have described a facial challenge as a challenge to a statute, asserting that no valid application of the statute exists because it is unconstitutional on its face. State v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017). Generally, a facial challenge seeks to void the statute in all contexts for all parties. Id. In contrast, an as-applied challenge often concedes the statute is constitutional in some of its applications, but contends it is unconstitutional as applied to the particular facts of the case. Id. An as-applied challenge does not seek to void the statute for all purposes, but seeks only to prevent the statute‘s application to the facts before the court. Id.
[7] In describing a facial challenge based on First Amendment grounds, we have stated that
in order to prevail upon a First Amendment facial attack to the constitutionality of a statute, the challenger must show either that every application of the statute creates an impermissible risk of suppression of ideas or that the statute is “substantially” overbroad, which requires the court to find a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court.
State v. Scott, 284 Neb. 703, 715, 824 N.W.2d 668, 682 (2012).
In the present case, Zitterkopf asserted a facial challenge to
(a) Overbreadth Challenge and Standing
[8] Before reviewing the merits of Zitterkopf‘s First Amendment challenge, we address the State‘s argument that a defendant does not have standing to challenge a statute based on overbreadth. The State acknowledges that in State v. Kass, 281 Neb. 892, 900-01, 799 N.W.2d 680, 689 (2011), we recognized that “a party has standing to challenge a statute as overbroad, even if unaffected by the part that punishes protected speech, when the party claims that the statute will significantly compromise the free speech rights of others not before the court.” But the State argues that such precedent was based on federal law and that this court is not required to interpret standing under state law in the same way that it is interpreted in federal law. The State urges us to overrule State v. Kass and related precedent and reject standing to challenge a statute based on overbreadth.
[9] We have stated as a general matter of standing in criminal cases that “[s]tanding to challenge the constitutionality of a statute under the federal or state Constitution depends upon whether one is, or is about to be, adversely affected by the language in question” and that a criminal defendant “has standing to challenge only the statute that was relevant to the prosecution of his case.” State v. Hibler, 302 Neb. 325, 339, 923 N.W.2d 398, 412 (2019). Zitterkopf was criminally charged under
As noted above, this court has recognized standing based on overbreadth. In State v. Kass, we recognized that the rule of standing based on overbreadth “exists out of ‘concern that the threat of enforcement of an overbroad law may deter or “chill” constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.‘” 281 Neb. at 901, 799 N.W.2d at 689 (quoting Virginia v. Hicks, 539 U.S. 113, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003)). Even before State v. Kass, we described the concerns underlying overbreadth by stating that
an individual whose own speech or conduct may be prohibited is permitted to challenge an enactment on its face because it also threatens others not before the court who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid
and that the “‘doctrine is predicated on the sensitive nature of protected expression and the fear that “persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.“‘” State v. Hookstra, 263 Neb. 116, 122, 638 N.W.2d 829, 835 (2002) (quoting New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982), quoting Schaumburg v. Citizens for Better Environ., 444 U.S. 620, 100 S. Ct. 826, 63 L. Ed. 2d 73 (1980)).
The State notes this court‘s reliance on federal law in recognizing overbreadth standing and argues that this court may depart from federal law regarding standing and refuse to recognize standing based on overbreadth. However, we recognize the merit of the reasoning as set forth in our prior cases, and we conclude that the State‘s argument in this case provides no basis to overrule State v. Kass, 281 Neb. 892, 799
For completeness, we note that we have recognized that the issue of standing in an overbreadth challenge is intertwined with consideration of the merits of the challenge. We have stated that “although our prior case law has sometimes referred to ‘substantial overbreadth’ as an aspect of standing, it is more properly characterized as a test for determining the merits of a facial overbreadth claim.” State v. Hookstra, 263 Neb. at 124, 638 N.W.2d at 836. Therefore, we more fully consider Zitterkopf‘s arguments regarding substantial overbreadth in our review of the merits of Zitterkopf‘s challenge to
(b) Applicability of First Amendment
[10] The 1st Amendment to the
[11] We note that
(c) Protected Speech or Unprotected Speech
[12-14] The broad protections afforded by the federal and state Constitutions, however, are not absolute. State v. Grant, supra. The general rule against government control over the content of speech does not apply to certain well-defined and narrowly limited categories of expression that are unprotected. See id. Categories of content that can be proscribed include libel, obscenity, incitements to imminent lawlessness, true threats, and fighting words. Id.
Courts in other states that have considered First Amendment challenges to statutes that, like
In the present case, we, like the other state courts cited above, recognize that there may be reasonable arguments that the speech prohibited by
(d) Content Based or Content Neutral
[15-17] We have noted that while certain speech is unprotected and therefore may be proscribed without violating the First Amendment, “it does not follow that speech which is not proscribable by one of these enumerated categories cannot be restricted” and that “even a content-based restriction can be upheld if it satisfies the requisite standard of scrutiny.” State v. Grant, 310 Neb. 700, 710, 968 N.W.2d 837, 848 (2022). The level of scrutiny applied to a statute that proscribes protected speech depends on whether the restriction is based on the content of the speech. A content-based restriction on speech is presumptively invalid and subject to strict scrutiny. State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011). A restriction that is content neutral is subject to an intermediate level of scrutiny. See Village of Winslow v. Sheets, 261 Neb. 203, 622 N.W.2d 595 (2001) (citing United States v. O‘Brien,
Courts in other states that have considered challenges to statutes that, like
In State v. VanBuren, 210 Vt. 293, 214 A.3d 791 (2019), the majority applied strict scrutiny but did not explicitly state that the statute was content based. However, a dissenting judge in State v. VanBuren specifically stated that it was “clear that the statute criminalizes the distribution of images based on their content—‘a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent.‘” 210 Vt. at 329, 214 A.3d at 816 (Skoglund, J., dissenting).
By contrast, in People v. Austin, 2019 IL 123910, 155 N.E.3d 439, 440 Ill. Dec. 669 (2019), the Supreme Court of Illinois determined that the statute at issue was content neutral. The court reasoned that the statute “distinguishe[d] the dissemination of a sexual image not based on the content of the image itself but, rather, based on” the consent or lack of consent of the person depicted in the image, and the court
The Supreme Court of Minnesota in State v. Casillas, 952 N.W.2d 629, 641 (Minn. 2020), stated that it “need not determine whether [the statute at issue] is content-based or content-neutral because [it found] that the State ha[d] met its burden under the more searching strict scrutiny analysis.” The court therefore assumed the statute was content based, applied strict scrutiny, and concluded the statute was constitutional.
In the present case, the district court found that
But like the Minnesota court in State v. Casillas, supra, we determine that we need not decide whether
(e) Strict Scrutiny
[18,19] A content-based restriction on protected speech is presumptively invalid and subject to strict scrutiny, and the State bears the burden to rebut that presumption. See State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011). Strict scrutiny requires the government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. See State ex rel. Bruning v. Gale, 284 Neb. 257, 817 N.W.2d 768 (2012).
The State in this case does not explicitly articulate the compelling interest addressed by
We agree with the reasoning of these courts and adopt it here. As set forth in greater depth by those courts, the State has a compelling interest in protecting the personal privacy of its citizens, and the conduct criminalized under
(ii) Narrowly Tailored
We next consider whether
Courts in other states applying a strict scrutiny analysis to statutes that, like
We note, as Zitterkopf contends, that there are differences between
Zitterkopf argues regarding intent that the statute is not narrowly tailored because it does not require a specific intent to intimidate, threaten, or harass the victim. But we do not think that the lack of such an intent element is fatal. The compelling interest behind the statute—protection of individual privacy interests—does not invariably require an intent to intimidate, threaten, or harass, and the Legislature could have determined that the harm of distribution of intimate images is the same regardless of the defendant‘s reason for distribution. We determine that the statutory provisions that the defendant intentionally distributed the image knowing the victim did not consent to either the creation or the distribution of the image is sufficient for narrow tailoring.
[20] Because Zitterkopf does not argue that
Overbreadth analysis is inherently closely related to the determination of whether the statute is narrowly tailored to achieve the State‘s compelling interest. The factors noted above show that
Zitterkopf argues, however, that
Without addressing the specifics of all of Zitterkopf‘s examples, we note that it is not entirely clear that all examples meet the statutory requirements. The examples may present issues of statutory interpretation, such as how consent requirements apply to babies and toddlers; whether the knowledge requirement applies when an image or video is “discovered,” and it may or may not be clear whether the image or video was created with consent; and whether specific images or videos of intimate areas are matters of public concern. Furthermore, it is not clear that each of the examples given by Zitterkopf involves images or videos that are not legitimately within the scope of the State‘s compelling interest in protecting privacy of the individuals depicted, including individuals under a certain age or individuals who find themselves involved in a news story.
“Invalidation for overbreadth is ‘strong medicine’ that has been employed ‘sparingly and only as a last resort.‘” State v. Katz, 179 N.E.3d 431, 460 (Ind. 2022) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973)). The “‘mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.‘” Id. (quoting City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984)).
We reject Zitterkopf‘s argument that
We determine that
2. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL RAISED BY NEW COUNSEL ON APPEAL
[21] Zitterkopf makes two claims of ineffective assistance of trial counsel. On direct appeal, Zitterkopf has new counsel who was not his trial counsel. When a defendant‘s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel‘s ineffective performance which is known to the defendant
[22,23] An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges deficient performance with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to recognize whether the claim was brought before the appellate court. Id. When a claim of ineffective assistance of counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel. Id.
[24] Once raised, an appellate court will determine whether the record on appeal is sufficient to review the merits of the ineffective performance claims. The record is sufficient if it establishes either that trial counsel‘s performance was not deficient, that the appellant will not be able to establish prejudice as a matter of law, or that trial counsel‘s actions could not be justified as a part of any plausible trial strategy. Id.
[25-27] To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that counsel‘s performance was deficient and that this deficient performance actually prejudiced the defendant‘s defense. State v. Dap, supra. To show that counsel‘s performance was deficient, the defendant must show counsel‘s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Id. To show prejudice from counsel‘s deficient performance, the defendant must demonstrate a reasonable probability that but for counsel‘s deficient performance, the result of the proceeding would have been different. Id.
Zitterkopf first claims that his trial counsel‘s performance was deficient because counsel failed to object based on hearsay to Soucie‘s testimony regarding out-of-court statements made by L.E. to the effect that she did not consent to the video recording or distribution of the images. We conclude that the record on direct appeal shows that Zitterkopf would not be able to show prejudice as a matter of law in connection with this claim of ineffective assistance of counsel.
Applying the standards we have recited above to Zitterkopf‘s claim that his trial counsel was ineffective for failing to make a hearsay objection to Soucie‘s testimony, we determine that the record on direct appeal shows that Zitterkopf would not be able to establish prejudice as a matter of law. Zitterkopf would not be able to demonstrate a reasonable probability that but for counsel‘s failure to object to portions of Soucie‘s testimony, the result of the proceeding would have been different. First, it was likely that any such objection would have been overruled because Soucie‘s testimony regarding L.E.‘s statements was offered to explain steps taken in the investigation of Zitterkopf. See State v. Anthony, 316 Neb. 308, 330, 4 N.W.3d 393, 411 (2024) (“statements made to law enforcement to explain the steps taken in an investigation of a defendant, rather than to prove the truth of the matter asserted, are generally admissible as nonhearsay so long as the probative value of the evidence‘s nonhearsay purpose is not substantially outweighed by the danger of unfair prejudice caused by an impermissible hearsay use of the statements“). Second, L.E. testified at trial, her testimony was consistent with Soucie‘s testimony regarding her statements to him, her testimony was subjected to cross-examination, and her testimony supported elements necessary to convict Zitterkopf.
The record on direct appeal is sufficient for us to determine that Zitterkopf would not be able to establish that trial
(b) Claim That Trial Counsel Provided Ineffective Assistance When Counsel Failed to Present Testimony Cannot be Reviewed on Direct Appeal
Zitterkopf‘s second claim of ineffective assistance of counsel is that his trial counsel provided ineffective assistance when counsel failed to present testimony by Zitterkopf and by Zitterkopf‘s cousin, which testimony Zitterkopf alleges would have supported a finding that L.E. consented to the video recording. Applying the standards set forth above in connection with Zitterkopf‘s claims of ineffective assistance of trial counsel, we conclude that the record on direct appeal is not sufficient to review this claim.
The claim relies on purported testimony by Zitterkopf and by his cousin that allegedly would have disputed L.E.‘s testimony that she did not consent to the video recording. The substance of the purported testimony is not in the record on direct appeal, and resolution of this claim could require consideration of issues such as the substance of the potential testimony, the effect such testimony might have had on the result of the trial, and whether counsel‘s failure to present such testimony was part of a reasonable trial strategy.
We determine that the record on direct appeal is not sufficient to review Zitterkopf‘s claim of ineffective assistance of trial counsel related to alleged potential testimony by himself and by his cousin.
VI. CONCLUSION
Although our reasoning differs, we conclude that the district court did not err when it rejected Zitterkopf‘s First Amendment challenge to
AFFIRMED.