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State v. Lamberson

Court of Appeals of Nebraska

December 4, 2018

State of Nebraska, appellee,
v.
Cody Lamberson, appellant.

         1. Trial: Convictions: Appeal and Error. An appellate court will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support that conviction.

         2. Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact finder's province for disposition. Instead, the relevant question 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 reasonable doubt.

         3. Effectiveness of Counsel: Appeal and Error. When a defendant's trial counsel is different from his or her appellate counsel, all issues of ineffective assistance of trial counsel that are known to the defendant or are apparent from the record must be raised on direct appeal. If the issues are not raised, they are procedurally barred.

         4. 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. 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.

         [26 Neb.App. 643] 5. 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 hearing.

         6. Due Process: Convictions: Appeal and Error. Due process does not require an appellate court, upon review of a criminal conviction, to take the inference most favorable to the accused.

         7. Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction, 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 reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

         8. 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. Such a claim may be resolved when the record on direct appeal is sufficient to either affirmatively prove or rebut the merits of the claim. 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, or that trial counsel's actions could not be justified as a part of any plausible trial strategy.

         9. 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 his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.

         10. Constitutional Law: Right to Counsel. The Sixth Amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings. Interrogation by the State is one of those critical stages.

         11. Constitutional Law: Right to Counsel: Waiver. The Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. Further, the defendant may waive the right regardless of whether or not he is already represented by counsel and the decision to waive need not itself be counseled.

         12. Effectiveness of Counsel. Defense counsel is not ineffective for failing to raise an argument that has no merit.

         13. Miranda Rights: Waiver. A Miranda waiver may be either express or implied.

         [26 Neb.App. 644] 14.___:___. An express waiver of a suspect's Miranda rights may be in writing or oral.

          Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Affirmed.

          Sean M. Reagan, of Reagan, Melton & Delaney, L.L.R, for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Pirtle, Riedmann, and Welch, Judges.

          Welch, Judge.

         INTRODUCTION

         Cody Lamberson appeals his conviction for child enticement. He contends that the evidence was insufficient to support his conviction and that his trial counsel was ineffective by withdrawing his motion to suppress, failing to renew the motion during trial, and failing to adduce evidence in Lamberson's defense. Finding no merit to the arguments raised by Lamberson on direct appeal, we affirm his conviction and sentence.

         STATEMENT OF FACTS

         On March 25, 2016, the 15-year-old victim and her foster sister were at an outlet mall in Gretna, Nebraska. Using her cell phone and the outlet mall's Wi-Fi, the victim was having a conversation with her 24-year-old adopted brother Lamberson via "Snapchat," a social media messaging application. The 20-minute conversation consisted of the victim and Lamberson asking each other how they were doing, because they had not seen each other or otherwise communicated in about a year. The victim testified at trial that she and Lamberson did not talk about sex during their Snapchat conversation. Snapchat messages disappear after a short period of time if they are not saved. When the victim was leaving the outlet mall and [26 Neb.App. 645] would no longer have Wi-Fi available to continue the Snapchat conversation with Lamberson, she asked him to send her text messages instead of using Snapchat.

         The following unedited conversation took place, via text message, between the victim and Lamberson:

[Lamberson:] Would you really hook up with me? 8:49 PM [The victim:] Idk your drink and I'm got little sister 8:49 PM
[Lamberson:] Its OK I know you wouldn't 8:51 PM
[The victim:] I'm sorry. And you got a wife for that 8:51 PM
[Lamberson:] I know but I want u 8:53 PM [The victim:] Why 8:53 PM
[The victim:] Text me be I don't have WiFi 8:55 PM
[Lamberson:] Your super hot and show you how good it feels 8:56 PM
[The victim:] Ohhhhhhhhhhh 8:57 PM
[Lamberson:] Ya and I have been with another woman in five years and really like you 9:08 PM
[Lamberson:] Haven't been with 9:15 PM
[The victim:] Cody I'm your little sister 9:18 PM
[Lamberson:] I know it makes me want it a little more but I'll stop and not bring it up ...

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