1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.
2. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial depends largely on the facts of each case.
3. Motions for New Trial: Prosecuting Attorneys: Appeal and Error. An appellate court reviews a motion for new trial on the basis of prosecutorial misconduct for an abuse of discretion by the trial court. [21 Neb.App. 250]
4. Attorneys at Law: Motions for Mistrial: Verdicts: Appeal and Error. A party may not raise alleged misconduct of adverse counsel on appeal where, despite knowledge of the alleged misconduct, the party claiming the misconduct failed to request a mistrial and instead agreed to take his or her chance on a favorable verdict.
5. Trial: Appeal and Error. On appeal, a defendant may not assert a different ground for an objection than was offered to the trier of fact.
6. Trial: Attorneys at Law. One is allowed considerable latitude in making an opening statement.
7. Trial: Appeal and Error. An objection to the prosecutor's argument made after the jury has been instructed and has retired is untimely and for that reason will not be reviewed on appeal.
8. Records: Appeal and Error. It is incumbent upon an appellant to present a record which supports the errors assigned.
9. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.
10. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.
11. Theft: Words and Phrases. The term "knowing, " as used in Neb. Rev. Stat. § 28-517 (Reissue 2008), imposes a subjective standard of knowledge.
12. 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 his or her defense.
13. __: __. The two-prong ineffective assistance of counsel test need not be addressed in order.
14. Effectiveness of Counsel: Presumptions. When considering whether trial counsel's performance was deficient, there is a strong presumption that counsel acted reasonably.
15. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. Trial counsel is afforded due deference to formulate trial strategy and tactics. When reviewing a claim of ineffective assistance of counsel, an appellate court will not second-guess reasonable strategic decisions by counsel.
16. Effectiveness of Counsel: Appeal and Error. A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal.
17. Trial: Prosecuting Attorneys. Generally, in assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the prosecutor's remarks were improper. It is then necessary to determine the extent to which the improper remarks had a prejudicial effect on the defendant's right to a fair trial.
18. Motions for Mistrial. A mistrial is appropriate when an event occurs during the course of a trial which is of such a nature that its damaging effects would prevent a fair trial. [21 Neb.App. 251]
19. Trial: Attorneys at Law. The decision about whether to make an objection during a trial has long been considered an aspect of trial strategy.
20. __: __. A decision not to object could be explained by trial counsel's calculated strategy not to highlight the objectionable material.
Appeal from the District Court for Holt County: Mark D. Kozisek, Judge.
Michael S. Borders, of Borders Law Office, for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.
Larry Lee Ruegge was convicted by a jury of theft by receiving stolen property. The district court subsequently found Ruegge to be a habitual offender and sentenced him to 10 years' imprisonment. Ruegge appeals from his conviction for theft by receiving stolen property. On appeal, Ruegge assigns numerous errors, including that there was insufficient evidence to support his conviction, that the State committed various instances of misconduct, and that the district court erred in failing to amend a certain jury instruction pursuant to Ruegge's request. Ruegge also alleges that he received ineffective assistance of trial counsel.
Upon our review, we find no merit to Ruegge's assertions on appeal. Accordingly, we affirm his conviction for theft by receiving stolen property.
The State filed a criminal complaint charging Ruegge with theft by receiving stolen property pursuant to Neb. Rev. Stat. § 28-517 (Reissue 2008). Later, the State filed an amended complaint which charged Ruegge with being a habitual offender pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2008), in addition to the original charge of theft by receiving stolen property.
The theft by receiving stolen property charge stems from events which occurred in November and December 2010. [21 Neb.App. 252] Evidence adduced at trial revealed that sometime during this time period, a flatbed trailer was stolen from Scribner Grain. Bolted to the flatbed trailer when it was stolen were various tools, including a generator/welder, an air compressor, a power washer, and some smaller hand tools. In the early part of December, an employee of Scribner Grain observed in the back of a pickup truck the generator/welder that had been stolen with the flatbed trailer. The employee followed the pickup truck to a local salvage yard, where it was discovered that the generator/welder was, in fact, the same generator/welder that had previously been stolen from Scribner Grain.
At trial, the State presented evidence to demonstrate that Ruegge had been in possession of the stolen generator/welder and had traded it, knowing that it was stolen, to the owner of the salvage yard, Richard Vande Mheen. Vande Mheen testified that on November 26, 2010, Ruegge came to Vande Mheen's home with the generator/welder and proposed a trade. Ruegge gave Vande Mheen the generator/welder in exchange for a snowmobile. Vande Mheen testified that Ruegge told him that he had purchased the generator/welder "when he was repairing irrigation systems."
When Vande Mheen was informed that the generator/welder had been stolen, he told police that he had gotten the tool from Ruegge. Vande Mheen then informed Ruegge that the police were asking about the generator/welder. Ruegge told Vande Mheen that if he did not tell police where he had gotten the tool, Ruegge would "make it worth [his] while." Ruegge also told Vande Mheen that he should tell police that the tool had "come in in a load of iron."
The State also presented evidence to demonstrate that the value of the generator/welder was approximately $2, 500.
Ruegge's defense focused almost primarily on discrediting Vande Mheen's testimony. Through his cross-examination of the State's witnesses, Ruegge attempted to demonstrate that no one actually saw Ruegge with the generator/welder except for Vande Mheen and that Vande Mheen was simply not a credible witness, because he had a reason to lie to the police and to the jury, that is, he knew the tool was stolen when he obtained it. Ruegge also elicited testimony from the State's witnesses to [21 Neb.App. 253] establish that Vande Mheen had actually obtained the stolen generator/welder from someone other than Ruegge.
After hearing all of the evidence, the jury convicted Ruegge of theft by receiving stolen property. The district court subsequently found Ruegge to be a habitual criminal and sentenced him to 10 years' imprisonment.
Ruegge appeals his conviction here.
III. ASSIGNMENTS OF ERROR
On appeal, Ruegge assigns 11 errors, which we consolidate to 4 errors for our review. Ruegge first alleges that the evidence was insufficient to support his conviction. He also alleges that the State committed various instances of misconduct during voir dire and its opening and closing statements. He alleges that the district court erred by denying his request for a specific jury instruction. Finally, Ruegge asserts that he received ineffective assistance of trial counsel.
1. SUFFICIENCY OF EVIDENCE
Ruegge alleges that the State presented insufficient evidence to prove beyond a reasonable doubt that he was ever in possession of the stolen generator/welder. Ruegge also alleges that the district court erred in overruling his motion for a directed verdict which was based upon insufficiency of the evidence. Upon our review, we conclude that the evidence was sufficient to support the conviction for theft by receiving stolen ...