Instructions. Whether jury instructions given by a trial
court are correct is a question of law.
Criminal Law: Evidence: Appeal and Error. In reviewing a
criminal conviction for a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a
combination thereof, the standard is the same: 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.
___:___. The relevant question for an appellate court is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
Effectiveness of Counsel. A claim that defense counsel
provided ineffective assistance presents a mixed question of
law and fact.
Effectiveness of Counsel: Appeal and Error. When reviewing a
claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for
___:___. With regard to the questions of counsel's
performance or prejudice to the defendant as part of the
two-pronged test articulated in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), an appellate court reviews such legal determinations
independently of the lower court's decision.
Sentences: Appeal and Error. An appellate court will not
disturb a sentence imposed within the statutory limits absent
an abuse of discretion by the trial court.
___:___. An abuse of discretion in imposing a sentence occurs
when a sentencing court's reasons or rulings are clearly
untenable and unfairly deprive the litigant of a substantial
right and a just result.
Neb.App. 214] 9. Criminal Law: Plea in Abatement. A defective
verification is subject to a motion to quash or a plea in
Criminal Law: Pleadings: Waiver. A defendant who pleads the
general issue without raising the question waives the defect.
Criminal Law: Pleas: Plea in Abatement: Waiver. A plea of not
guilty ordinarily waives all matters which might have been
raised by a motion to quash or a plea in abatement.
Appeal and Error. An alleged error must be both specifically
assigned and specifically argued in the brief of the party
asserting the error to be considered by an appellate court.
Criminal Law: Lesser-Included Offenses: Jury Instructions. In
non-homicide cases, a trial court must instruct on a
lesser-included offense only if requested to do so.
Criminal Law: Directed Verdict. In a criminal case, a court
can direct a verdict only when there is a complete failure of
evidence to establish an essential element of the crime
charged or the evidence is so doubtful in character, lacking
probative value, that a finding of guilt based on such
evidence cannot be sustained.
Directed Verdict. If there is any evidence which will sustain
a finding for the party against whom a motion for directed
verdict is made, the case may not be decided as a matter of
law, and a verdict may not be directed.
Postconviction: Effectiveness of Counsel: Records: Appeal and
Error. In order to raise the issue of ineffective assistance
of trial counsel where appellate counsel is different from
trial counsel, a defendant must raise on direct appeal any
issue of ineffective assistance of trial counsel which is
known to the defendant or is apparent from the record, or the
issue will be procedurally barred on postconviction review.
Effectiveness of Counsel: Records: Appeal and Error. The fact
that an ineffective assistance of counsel claim is raised on
direct appeal does not necessarily mean that it can be
resolved. The determining factor is whether the record is
sufficient to adequately review the question.
Trial: Effectiveness of Counsel: Evidence: Appeal and Error.
An ineffective assistance of counsel claim will not be
addressed on direct appeal if it requires an evidentiary
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.
___:___. To show deficient performance, a defendant must show
that counsel's performance did not equal that of a lawyer
with ordinary training and skill in criminal law in the area.
Neb.App. 215] 21. ___:___.To show prejudice, the defendant
must demonstrate reasonable probability that but for
counsel's deficient performance, the result of the
proceeding would have been different.
Effectiveness of Counsel: Presumptions: Appeal and Error. The
entire effectiveness analysis is viewed with a strong
presumption that counsel's actions were reasonable and
that even if found unreasonable, the error justifies setting
aside the judgment only if there was prejudice. Deficient
performance and prejudice can be addressed in either order.
Sentences. When imposing a sentence, a sentencing judge
should consider the defendant's (1) age, (2) mentality,
(3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7)
the nature of the offense, and (8) the amount of violence
involved in the commission of the crime.
___. The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge's
observation of the defendant's demeanor and attitude and
all of the facts and circumstances surrounding the
from the District Court for Douglas County: J. Michael
Gregory A. Pivovar for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
and Bishop, Judges.