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.
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
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.
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
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
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.
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
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.
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
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
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.
Effectiveness of Counsel. Defense counsel is
not ineffective for failing to raise an argument that has no
Miranda Rights: Waiver. A Miranda
waiver may be either express or implied.
Neb.App. 644] 14.___:___. An express waiver
of a suspect's Miranda rights may be in writing
from the District Court for Sarpy County: Stefanie A.
Martinez, Judge. Affirmed.
M. Reagan, of Reagan, Melton & Delaney, L.L.R, for
Douglas J. Peterson, Attorney General, and Austin N. Relph
Pirtle, Riedmann, and Welch, Judges.
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.
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.
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
[Lamberson:] I know but I want u 8:53 PM [The victim:] Why
[The victim:] Text me be I don't have WiFi 8:55 PM
[Lamberson:] Your super hot and show you how good it feels
[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 ...