State v. Wells , 300 Neb. 296 ( 2018 )


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    www.nebraska.gov/apps-courts-epub/
    07/06/2018 01:10 AM CDT
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    STATE v. WELLS
    Cite as 
    300 Neb. 296
    State of Nebraska, appellee, v.
    A nthony L. Wells, appellant.
    ___ N.W.2d ___
    Filed June 22, 2018.    No. S-17-359.
    1.	 Jury Instructions: Appeal and Error. Whether jury instructions are
    correct is a question of law, which an appellate court resolves indepen-
    dently of the lower court’s decision.
    2.	 Jury Instructions: Proof: Appeal and Error. In an appeal based on
    a claim of an erroneous jury instruction, the appellant has the burden
    to show that the questioned instruction was prejudicial or otherwise
    adversely affected a substantial right of the appellant.
    3.	 Jury Instructions: Appeal and Error. All the jury instructions must
    be read together, and if, taken as a whole, they correctly state the law,
    are not misleading, and adequately cover the issues supported by the
    pleadings and the evidence, there is no prejudicial error necessitat-
    ing reversal.
    4.	 Convictions: 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 ele-
    ments of the crime beyond a reasonable doubt.
    5.	 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
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    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.
    6.	 Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A
    defendant who moves for dismissal or a directed verdict at the close of
    the evidence in the State’s case in chief in a criminal prosecution, and
    who, when the court overrules the dismissal or directed verdict motion,
    proceeds with trial and introduces evidence, waives the appellate right
    to challenge correctness in the trial court’s overruling the motion for
    dismissal or a directed verdict but may still challenge the sufficiency of
    the evidence.
    7.	 Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
    counsel is different from his or her counsel on direct appeal, the defend­
    ant 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.
    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 affirm­
    atively prove or rebut the merits of the claim. The record is sufficient
    if it establishes either that trial counsel’s performance was not defi-
    cient, 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 per­
    formance actually prejudiced the defendant’s defense.
    10.	 ____: ____. To show deficient performance, a defendant must show that
    counsel’s performance did not equal that of a lawyer with ordinary train-
    ing and skill in criminal law.
    11.	 ____: ____. To show prejudice, the defendant must demonstrate a rea-
    sonable probability that but for counsel’s deficient performance, the
    result of the proceeding would have been different.
    12.	 Words and Phrases. A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.
    13.	 Effectiveness of Counsel: Presumptions. The two prongs of the test
    under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 80 L.
    Ed. 2d 674 (1984), may be addressed in either order, and the entire inef-
    fectiveness analysis should be viewed with a strong presumption that
    counsel’s actions were reasonable.
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    14.	 Postconviction: Effectiveness of Counsel: Records: Claims: Appeal
    and Error. In the case of an argument presented for the purpose of
    avoiding procedural bar to a future postconviction proceeding, appellate
    counsel must present a claim with enough particularity for (1) an appel-
    late 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 be able to recognize whether the claim was
    brought before the appellate court. A claim insufficiently stated is no
    different than a claim not stated at all.
    Appeal from the District Court for Lancaster County: Darla
    S. Ideus, Judge. Affirmed.
    Michael J. Wilson, of Schaefer Shapiro, L.L.P., for
    appellant.
    Douglas J. Peterson, Attorney General, and Stacy M. Foust
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
    JJ., and H arder and Noakes, District Judges.
    Miller-Lerman, J.
    I. NATURE OF CASE
    Anthony L. Wells appeals his convictions in the district
    court for Lancaster County for first degree murder, use of
    a firearm to commit a felony, possession of a firearm by a
    prohibited person, and unlawful discharge of a firearm. Wells
    claims, inter alia, that he was prejudiced because the court’s
    instruction regarding transferred intent incorrectly stated the
    law and that trial counsel provided ineffective assistance. We
    affirm Wells’ convictions and sentences.
    II. STATEMENT OF FACTS
    The charges against Wells arose from the shooting death
    of Joshua Hartwig. A group of residents had gathered out-
    side Hartwig’s apartment building after hearing a disturbance.
    Hartwig joined the group after the disturbance appeared to
    have ended, but several minutes later a man walked up and
    fired shots at the group. Hartwig was struck by a bullet and
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    died from the gunshot wound. Testimony of witnesses at Wells’
    trial established the following:
    In the early morning hours of January 31, 2016, Wells and
    Rhani Henry, the mother of Wells’ daughter, got into a physi-
    cal and verbal altercation outside Henry’s apartment building
    in Lincoln, Nebraska. Both Wells and Henry appeared to be
    intoxicated. Various residents of the apartment building heard
    the disturbance, and some residents came outside while the
    fight between Wells and Henry was ongoing. Certain residents
    separated Wells and Henry, and some residents told Wells
    that he needed to leave. Wells briefly argued with the resi-
    dents, but then he got into his vehicle to leave. Before Wells
    left, some residents heard him say words to the effect that he
    would be back.
    After Wells left, Hartwig and his father, Douglas Hartwig
    (Douglas), who were residents of the apartment building,
    joined the residents who remained outside. The group talked
    about the incident that had just happened. Approximately 10
    to 15 minutes later, members of the group saw or heard a man
    approach and say some words to the group. The man then fired
    several shots. Witnesses generally agreed that the man was
    wearing a dark hooded sweatshirt with the hood pulled up and
    possibly a bandanna across his face. Although the man’s face
    was obscured, certain witnesses identified the man as Wells
    based on his voice and physical features.
    Douglas testified that he heard the man yell “‘hey mother
    fuckers’” before he began shooting. Douglas turned and told
    Hartwig to run for cover, and the two ran toward their apart-
    ment. Douglas tripped and fell beside a car parked in front of
    the apartment; when he fell, he saw and heard a bullet hit the
    bumper of the car. Douglas testified that he heard “[a]t least
    a half dozen” shots, then a pause, and then “at least a half
    dozen more.” After the shooting stopped, Douglas got up and
    heard one of the other residents say that Hartwig was “down.”
    Douglas found Hartwig lying face down in front of their
    apartment door. Douglas went inside to call for emergency
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    services, and when he returned to Hartwig, Douglas observed
    what appeared to be a gunshot wound to Hartwig’s upper
    shoulder. When emergency responders arrived, they attempted
    lifesaving procedures on Hartwig, but after a short period they
    declared him deceased.
    Other testimony presented by the State included the testi-
    mony of Artesia Holmes, a friend of Henry. Holmes testified
    that she, Henry, and Wells went to a bar on the evening of
    January 30, 2016, to celebrate Henry’s birthday. Before they
    went to the bar, Holmes and Henry had drinks at Holmes’
    apartment. When Wells arrived to pick them up, Holmes
    observed that Wells was in possession of a silver and black
    handgun. Henry also testified at trial, but she stated that she
    did not remember anything from that night after Wells arrived
    at Holmes’ apartment. Other witness testimony is discussed in
    the analysis below as it relates to Wells’ claims of ineffective
    assistance of trial counsel.
    Physical evidence presented by the State indicated bullet
    damage to various areas of the apartment building, as well as
    to vehicles parked near the building. Law enforcement officers
    collected 13 shell casings, 1 bullet fragment, and 2 bullets
    from the scene. They found a third bullet inside a window of a
    house two blocks from the scene. A firearms examiner testified
    that the shell casings were all fired in the same firearm and
    that they matched the caliber and manufacturer of an unfired
    cartridge found in a search of Wells’ bedroom. Due to damage
    to the bullets, the examiner could not determine whether the
    bullets had been fired from the same gun.
    Video from surveillance cameras in the area of the apart-
    ment building recorded around the time of the shooting indi-
    cated the following: Video from a nearby apartment complex
    showed a vehicle similar to Wells’ leaving the apartment
    building at 1:16 a.m. A surveillance camera at a business
    near the apartment recorded the sound of 13 gunshots at 1:26
    a.m. A camera located several blocks from the apartment
    showed a vehicle similar to Wells’ driving by at 1:28 a.m.
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    When that video was enhanced, it appeared to show an object
    being thrown from the vehicle. Law enforcement officers who
    searched that location found a black hooded coat with a face
    mask in the pocket. Testing of DNA on the inside of the mask
    included Wells as a major contributor.
    The State also presented evidence that Wells had a prior
    conviction for possession of a firearm by a prohibited person.
    After the State rested its case, Wells moved for a directed
    verdict on the count of unlawful discharge of a firearm. The
    court overruled Wells’ motion for a directed verdict, and Wells
    proceeded to present evidence in his defense.
    In his defense, Wells presented testimony by two women
    who testified that Wells picked them up at a location in Council
    Bluffs, Iowa, after they finished work at around 2:05 a.m. or
    2:10 a.m. on January 31, 2016. He also presented evidence that
    two of the State’s witnesses were unable to identify Wells from
    a police photographic lineup and that one of the two identified
    another person in the photographic lineup. Both witnesses had
    identified Wells as the shooter based on his voice.
    The court instructed the jury on the elements of the offenses
    with which Wells was charged, including first degree murder
    and the lesser-included offenses of second degree murder and
    manslaughter. The court also gave an instruction, over Wells’
    objection, regarding transferred intent. The content of the rel-
    evant instructions and Wells’ objections thereto are discussed
    in the analysis below.
    The jury found Wells guilty of all four counts charged—first
    degree murder, use of a firearm to commit a felony, possession
    of a firearm by a prohibited person, and unlawful discharge of
    a firearm. The court sentenced Wells to consecutive terms of
    imprisonment for life for first degree murder, for 20 to 30 years
    for use of a firearm to commit a felony, for 20 to 40 years for
    possession of a firearm by a prohibited person (which was a
    second offense), and for 10 to 10 years for unlawful discharge
    of a firearm.
    Wells appeals his convictions and sentences.
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    III. ASSIGNMENTS OF ERROR
    Wells claims that the district court erred (1) when it gave an
    instruction regarding transferred intent which incorrectly stated
    the law and (2) when it overruled his motion for a directed ver-
    dict on the count of unlawful discharge of a firearm.
    Wells further claims that his trial counsel provided ineffec-
    tive assistance when counsel (1) failed to object to testimony
    regarding prior bad acts involving his assaults on Henry, (2)
    elicited and then failed to object to hearsay testimony regard-
    ing Henry’s fear of Wells, (3) failed to move for a mistrial
    based on the State’s comments during closing arguments to the
    effect that a witness feared Wells, and (4) failed to adequately
    investigate various aspects of his defense.
    IV. STANDARDS OF REVIEW
    [1-3] Whether jury instructions are correct is a question of
    law, which an appellate court resolves independently of the
    lower court’s decision. State v. Schwaderer, 
    296 Neb. 932
    ,
    
    898 N.W.2d 318
    (2017). In an appeal based on a claim of an
    erroneous jury instruction, the appellant has the burden to show
    that the questioned instruction was prejudicial or otherwise
    adversely affected a substantial right of the appellant. State v.
    Hinrichsen, 
    292 Neb. 611
    , 
    877 N.W.2d 211
    (2016). All the jury
    instructions must be read together, and if, taken as a whole,
    they correctly state the law, are not misleading, and adequately
    cover the issues supported by the pleadings and the evidence,
    there is no prejudicial error necessitating reversal. 
    Id. [4] In
    reviewing a criminal conviction for a sufficiency of
    the evidence claim, whether the evidence is direct, circum-
    stantial, 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
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    beyond a reasonable doubt. State v. Cotton, 
    299 Neb. 650
    , 
    910 N.W.2d 102
    (2018).
    [5] Whether a claim of ineffective assistance of trial coun-
    sel 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. We determine 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. R eading Instructions as a Whole,
    We Determine the Instruction R egarding
    Transferred Intent Did Not Misstate
    the Law and Was Not M isleading
    Wells first claims that the district court erred when it
    gave its instruction regarding transferred intent. He notes
    that although the instruction referred to “intent,” it did not
    contain a reference to “‘deliberate and premeditated mal-
    ice.’” Brief for appellant at 11. He argues that the instruction
    incorrectly stated the law as to first degree murder because it
    conflated “intent” with “‘deliberate and premeditated malice’”
    and “relieved the State of its burden to prove that Wells acted
    with malice toward at least one of the people in the group” at
    which he allegedly fired shots. 
    Id. at 10.
    We conclude that the
    instructions read as a whole correctly stated the law and were
    not misleading.
    In instruction No. 3, the court instructed the jury on
    “Count I,” first degree murder, by setting forth the elements
    as follows:
    The elements which the State must prove beyond a
    reasonable doubt in order to convict . . . Wells of Murder
    in the First Degree are:
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    1. That . . . Wells killed . . . Hartwig; and
    2. That . . . Wells did so purposely; and
    3. That . . . Wells did so with deliberate and premedi-
    tated malice; and
    4. That . . . Wells did so on or about January 31, 2016,
    in Lancaster County, Nebraska.
    Instruction No. 3 continued by instructing on the lesser-
    included offenses of second degree murder and manslaughter,
    each of which included an element that Wells killed Hartwig
    “intentionally.”
    Over Wells’ objection, the court also gave instruction No. 7,
    a transferred intent instruction, which stated as follows:
    With respect to the charge in Count I, if you find that
    . . . Wells intended to kill a specific person, and by mis-
    take or accident killed . . . Hartwig, the element of intent
    is satisfied even though . . . Wells did not intend to kill
    . . . Hartwig. In such a case, the law regards the intent
    as transferred from the original intended victim to the
    actual victim.
    Instruction No. 11, regarding intent, instructed the jury
    that “[i]n deciding whether . . . Wells acted with intent (pur-
    pose, knowledge, wilfulness, premeditation, deliberation) you
    should consider his words and acts and all the surrounding
    circumstances.”
    At the jury instruction conference, Wells objected to
    instruction No. 7, the transferred intent instruction, on the
    basis that it was not supported by the evidence. He asserted
    that the evidence showed that the shooter fired into a crowd
    but that there did not appear to be a specific intent focused on
    a single individual. In contrast, the State argued the jury could
    find Wells guilty of first degree murder based on transferred
    intent if the jury found that Wells had the requisite intent to
    kill one or more of the people who had been outside during
    the earlier altercation with Henry and who had traded words
    with Wells but that instead he shot Hartwig. The State also
    argued in the alternative that the jury could find that Wells
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    had the requisite intent to kill any or all of the people, includ-
    ing Hartwig, who were standing outside the building at the
    time he fired the shots, regardless of whether they had been
    present at or involved in the earlier altercation.
    Although Wells’ objection to instruction No. 7 at trial
    focused on whether the instruction was supported by the evi-
    dence, he argues on appeal that the instruction incorrectly
    stated the law and was misleading. He notes that in order to
    convict him of first degree murder, the jury needed to find that
    he had killed Hartwig both “‘purposely’” and “with ‘deliberate
    and premeditated malice.’” Brief for appellant at 14 and 16.
    He argues that the phrase “the element of intent” in instruction
    No. 7 refers only to the “‘purposely’” element of first degree
    murder and not to the “‘malice’” element. 
    Id. at 14
    and 15. He
    contends that instruction No. 7 conflated “intent” and “malice”
    and allowed the jury to find him guilty of first degree murder
    if it found that he intended to shoot another person without
    requiring the jury to also find that he shot at another person
    “with ‘deliberate and premeditated malice.’” 
    Id. at 16.
    The
    State generally maintains that the jury instructions as a whole
    did not prejudice Wells.
    As we read their arguments, both Wells and the State do not
    dispute that the concept of transferred intent is applicable to
    first degree murder, including where, as a general proposition,
    a defendant shoots into a group of people with intent “to kill
    at least one person in the group,” reply brief for appellant at
    3, “even if [the defendant] did not intend for [the] specific”
    actual victim to be killed, brief for appellee at 14. In this
    regard, reference is made to State v. Gutierrez, 
    272 Neb. 995
    ,
    
    726 N.W.2d 542
    (2007), disapproved on other grounds, State
    v. Britt, 
    293 Neb. 381
    , 
    881 N.W.2d 818
    (2016), a first degree
    murder case, in which we approved of a similar transferred
    intent instruction where the victims were not the intended
    target. See State v. Morrow, 
    237 Neb. 653
    , 
    467 N.W.2d 63
    (1991) (considering instruction similar to Gutierrez instruc-
    tion in second degree murder case). So the disagreement in
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    the instant appeal is limited to whether the jury instructions
    herein satisfactorily conveyed the applicable law to the jury.
    As explained below, we conclude that the instructions, taken
    as a whole, were adequate.
    Given the nature of Wells’ challenge, we must read the
    instructions as a whole to determine whether they correctly
    state the law and are not misleading. See State v. Hinrichsen,
    
    292 Neb. 611
    , 
    877 N.W.2d 211
    (2016). Doing so, contrary to
    Wells’ urging, we do not read the instructions in this case as
    having relieved the jury of the duty to find all the elements
    of first degree murder. Instead, we note instruction No. 3 sets
    forth all the elements of first degree murder, including that
    Wells killed Hartwig and that he did so both purposely and
    with deliberate and premeditated malice. Thus, the jury clearly
    was instructed that in order to find Wells guilty of first degree
    murder, it must find that the killing was committed both pur-
    posely and with deliberate and premeditated malice. We read
    nothing in instruction No. 7 that relieves the jury of finding
    any part of these requirements.
    Instruction No. 7 does not purport to substitute or eliminate
    any required element of any offense charged. Instead, instruc-
    tion No. 7, the transferred intent instruction, provides that if
    the jury finds that Wells intended to kill another person but
    by mistake or accident killed Hartwig, then “the element of
    intent is satisfied” and “the law regards the intent as trans-
    ferred from the original intended victim to the actual victim.”
    Instruction No. 7 is not intended as a reiteration of the ele-
    ments of a crime. Instead, it serves as an explication solely
    regarding “intent.”
    As noted above, Wells maintains that “the element of intent”
    in instruction No. 7 refers only to the “‘purposely’” element
    of first degree murder and not the “with ‘deliberate and pre-
    meditated malice’” element. Brief for appellant at 14 and 16.
    Contrary to Wells’ assertion, the language of instruction No. 7
    provides no basis upon which jurors would read “the element
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    of intent” as referring to purpose but believe they had thereby
    been instructed to ignore the element of deliberate and pre-
    meditated malice. Instead, “the element of intent” refers to the
    intent required for the specific crime charged.
    Our reading of instruction No. 7 is bolstered by instruc-
    tion No. 11, noted above, in which the court instructed the
    jury that “[i]n deciding whether . . . Wells acted with intent
    (purpose, knowledge, wilfulness, premeditation, deliberation)
    you should consider his words and acts and all the surround-
    ing circumstances.” Instruction No. 11 communicates to the
    jury that “intent” includes, inter alia, “purpose,” “premedita-
    tion,” and “deliberation” when those are required elements of
    a charge.
    We note that Wells compares the wording of instruction
    No. 7 to the wording of transferred intent instructions given in
    cases such as State v. Iromuanya, 
    272 Neb. 178
    , 
    719 N.W.2d 263
    (2006), and State v. Gutierrez, 
    272 Neb. 995
    , 
    726 N.W.2d 542
    (2007), disapproved on other grounds, State v. Britt, 
    293 Neb. 381
    , 
    881 N.W.2d 818
    (2016). He particularly notes that
    the instruction in Gutierrez refers more generally to “‘the
    crime’” committed rather than to the “element of intent.” Brief
    for appellant at 15 and 16. See, also, State v. Morrow, 
    237 Neb. 653
    , 
    467 N.W.2d 63
    (1991). Our analysis in this case is spe-
    cific to the entirety of the instructions given in this case, and
    we make no comment on whether the instruction given in this
    case or the instruction given in another case is the preferable
    form of an instruction on transferred intent. Our conclusion is
    merely that the specific instructions given in this case, when
    read as a whole, correctly state the law, are not misleading, and
    are supported by the evidence, and there is no prejudicial error
    necessitating reversal. See State v. Hinrichsen, 
    292 Neb. 611
    ,
    
    877 N.W.2d 211
    (2016).
    Because we conclude that the district court did not err when
    it gave instruction No. 7 over Wells’ objection, we reject Wells’
    first assignment of error.
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    2. Evidence Was Sufficient to Support
    Conviction for Unlawful
    Discharge of a Firearm
    [6] Wells next claims that the district court erred when it
    overruled his motion for a directed verdict on the count of
    unlawful discharge of a firearm. The record indicates that
    after the court overruled Wells’ motion for a directed verdict,
    he proceeded to present evidence in his defense. A defendant
    who moves for dismissal or a directed verdict at the close of
    the evidence in the State’s case in chief in a criminal pros-
    ecution, and who, when the court overrules the dismissal or
    directed verdict motion, proceeds with trial and introduces
    evidence, waives the appellate right to challenge correctness
    in the trial court’s overruling the motion for dismissal or a
    directed verdict but may still challenge the sufficiency of the
    evidence. State v. Olbricht, 
    294 Neb. 974
    , 
    885 N.W.2d 699
    (2016). Wells assigns error to the overruling of his motion for
    a directed verdict, but he argues the error as a challenge to
    the sufficiency of the evidence to support his conviction for
    unlawful discharge of a firearm. We consider Wells’ assign-
    ment of error as a challenge to the sufficiency of the evidence,
    but we conclude that there was sufficient evidence to support
    the conviction.
    Wells was charged with unlawful discharge of a firearm,
    in violation of Neb. Rev. Stat. § 28-1212.02 (Reissue 2016),
    which provides that a person is guilty of the offense if the
    person “unlawfully and intentionally discharges a firearm at[,
    inter alia,] an inhabited dwelling house, occupied building,
    [or] occupied motor vehicle.” Wells argues that the evidence
    in this case showed that none of the vehicles that were hit by
    bullets were occupied and that there was no evidence of bullets
    hitting doors or windows of specific apartments in the build-
    ing. He contends that the evidence showed that the shooter
    was aiming at the people gathered outside the building rather
    than at the building itself. He notes that a bullet was found
    inside a window of a house two blocks from the scene but he
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    argues there was no evidence that the shooter intended to fire
    at that house.
    The State in its response does not rely on the bullets found
    either in the vehicles or in the house two blocks away as
    establishing this offense. Instead, the State relies on evidence
    that bullets were found in parts of the apartment building
    structure, including the rafters and supporting beams, and con-
    tends such evidence establishes that a firearm was discharged
    at the building. The State asserts that Wells does not dispute
    that the apartment building was occupied at the time the shots
    were fired.
    The evidence noted by the State supports a finding that
    Wells fired shots at the apartment building and that the build-
    ing was occupied at the time. The evidence was also such that
    the jury could reasonably infer that Wells intended to shoot at
    the building. The statute requires a finding that the defendant
    intentionally discharged a firearm at an occupied building; we
    do not read the statute as requiring that the firearm be aimed
    at a specific part of the building such as a specific apartment
    or at a door or window. Evidence that Wells discharged a fire-
    arm at the building, that he did so intentionally, and that the
    building was occupied at the time was sufficient to support
    the conviction.
    We conclude that viewing the evidence in the light most
    favorable to the State, a rational trier of fact could have found
    the elements of unlawful discharge of a firearm beyond a rea-
    sonable doubt. We reject this assignment of error.
    3. Wells’ Claims of Ineffective Assistance of
    Trial Counsel Either A re Without Merit
    or Cannot Be Determined Based
    on R ecord on Direct A ppeal
    Wells claims that his trial counsel provided ineffective
    assist­
    ance in various respects. He specifically claims that
    counsel (1) failed to object to testimony regarding prior bad
    acts involving assaults on Henry, (2) elicited and then failed
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    to object to hearsay testimony regarding Henry’s fear of Wells,
    (3) failed to move for a mistrial based on the State’s comments
    during rebuttal closing arguments to the effect that a witness
    feared Wells, and (4) failed to adequately investigate various
    aspects of his defense. We first set forth applicable standards
    and then consider each of these specific claims below.
    [7] On appeal, Wells has counsel different from 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 perform­
    ance which is known to the defendant or is apparent from the
    record. Otherwise, the issue will be procedurally barred. State
    v. Cotton, 
    299 Neb. 650
    , 
    910 N.W.2d 102
    (2018).
    [8] The fact that an ineffective assistance of counsel claim is
    raised on direct appeal does not necessarily mean that it can be
    resolved. 
    Id. 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. 
    Id. [9-13] 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. State v. 
    Cotton, supra
    . 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 crimi-
    nal law. 
    Id. To show
    prejudice, the defendant must demonstrate
    a reasonable probability that but for counsel’s deficient per­
    formance, the result of the proceeding would have been dif-
    ferent. 
    Id. A reasonable
    probability is a probability sufficient
    to undermine confidence in the outcome. 
    Id. The two
    prongs
    of this test may be addressed in either order, and the entire
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    ineffectiveness analysis should be viewed with a strong pre-
    sumption that counsel’s actions were reasonable. 
    Id. (a) Testimony
    Regarding
    Prior Bad Acts
    Wells claims that he received ineffective assistance when
    trial counsel failed to object to testimony regarding prior bad
    acts involving assaults on Henry. One witness who observed
    the altercation between Wells and Henry testified that he said
    to another witness that “[Henry’s] baby daddy is outside beat-
    ing her up again.” Another witness who observed the alterca-
    tion between Wells and Henry on January 31, 2016, testified
    that in the summer of 2015, she had witnessed an altercation
    between Wells and another woman and that at that time, Wells
    put his hand around Henry’s mouth and throat when Henry
    tried to hold him back from the other woman. Wells’ trial coun-
    sel did not object to either witness’ testimony.
    Wells claims on appeal that trial counsel was ineffective
    for failing to object to what he asserts was inadmissible prior
    bad acts evidence. He argues that failure to object was defi-
    cient performance because in order for the court to admit the
    evidence, the State would have been required to articulate
    a proper purpose, other than showing Wells’ propensity for
    violence. He argues that even if the evidence were admitted
    for some proper purpose, the jury should have been given an
    instruction limiting use of the evidence to such proper purpose.
    He argues that trial counsel’s failure prejudiced him because
    the jury was able to consider the evidence as showing that he
    committed the charged crimes because he had a propensity
    for violence.
    We conclude that whether or not counsel’s performance was
    deficient in this respect, Wells was not prejudiced, because
    there is not a reasonable probability that the result of the pro-
    ceeding would have been different if counsel had objected
    to this testimony. Indeed, an objection and limiting instruc-
    tion might have highlighted the testimony. In any event, the
    testimony noted by Wells was minor in the context of all the
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    evidence that was presented by the State. In this regard, we
    specifically note that there was other properly admitted testi-
    mony regarding Wells’ violent behavior toward Henry on the
    night of the shooting. Given all the evidence, it is not reason-
    ably probable that the testimony noted by Wells significantly
    affected the jury’s verdict. We reject this claim of ineffective
    assistance of trial counsel.
    (b) Hearsay Testimony
    Wells next claims that he received ineffective assistance
    when his trial counsel elicited and then failed to object to
    hearsay testimony regarding Henry’s fear of Wells. Wells’
    trial counsel asked one of the State’s witnesses on cross-
    examination whether he had talked with Henry about Wells,
    and the witness testified that he “heard some comments about
    [Henry’s] wanting to get away from” Wells and that Henry said
    “she loved him and that she was also scared of him.”
    On appeal, Wells contends that trial counsel was ineffec-
    tive for eliciting this testimony and for failing to object to
    the testimony as nonresponsive and as hearsay. He argues
    that the line of questioning could not be justified as a reason-
    able strategic decision and that the error was compounded
    when counsel failed to ask the court to strike the testimony
    as nonresponsive or as hearsay. He argues he was prejudiced
    by this testimony because it further portrayed him as having
    a violent nature.
    We conclude that no prejudice was shown because this tes-
    timony, like the testimony discussed above, was minor in the
    context of all the properly admitted evidence and that there
    is not a reasonable probability the result of the proceeding
    would have been different if trial counsel either had not elic-
    ited the testimony or had objected to it. We reject this claim
    of ineffective assistance of trial counsel.
    (c) Mistrial
    Wells next claims that he received ineffective assistance
    when trial counsel failed to move for a mistrial based on the
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    State’s comments during rebuttal closing arguments regarding
    a witness’ alleged fear of Wells. One of the State’s witnesses
    testified that she knew Wells and had seen him a few times
    with Henry. The State asked the witness whether she saw
    Wells in the courtroom, and she replied that she did not. In its
    closing argument in rebuttal, the State referred to that witness
    and said:
    I said do you see . . . Wells in the courtroom? What did
    she do? She sat there and she looked at all of you and
    looked over here and then she looked up and she was
    looking at the ceiling. I asked her if she saw . . . Wells
    in the courtroom. And she would - really? Was he up on
    the ceiling, or was she for some reason afraid of identify-
    ing him?
    Wells’ trial counsel objected to the prosecutor’s statement.
    The court sustained the objection, struck the comment, and
    instructed the jury to disregard it. Wells’ counsel did not there-
    after move for a mistrial.
    On appeal, Wells claims trial counsel was ineffective for
    failing to move for a mistrial because, given other improp-
    erly admitted evidence regarding Wells’ violent nature, the
    court’s instruction to disregard the State’s comment could not
    “‘unring’ the bell.” Brief for appellant at 26. He argues that
    his defense was prejudiced because a defense motion would
    have been sustained and a mistrial would have been granted.
    Wells relies on the proposition that a mistrial may be warranted
    where unfairness has been injected into a jury trial and so per-
    meates the proceedings that no amount of admonition to the
    jury can remove the unfairness to a party. State v. Pierce, 
    231 Neb. 966
    , 
    439 N.W.2d 435
    (1989).
    We disagree with Wells’ assessment that a mistrial would
    have been granted. The court’s sustaining Wells’ objection and
    admonishing the jury were a sufficient response to the State’s
    comment, and we do not think the comment injected unfairness
    that so permeated the proceedings that admonition to the jury
    could not remove it. There was not a reasonable probability
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    that a mistrial would have been granted if counsel had moved
    for it, and we therefore reject this claim of ineffective assist­
    ance of counsel.
    (d) Cumulative Effect
    Wells argues that even if each of the preceding alleged fail-
    ures is insufficient in itself to establish ineffective assistance
    of counsel, the cumulative effect of all the alleged deficiencies
    amounts to ineffective assistance. We determined above that
    none of the alleged deficiencies prejudiced Wells’ defense, and
    we likewise conclude that the cumulative effect of the alleged
    deficiencies did not prejudice Wells’ defense.
    (e) Investigation
    Finally, Wells claims that trial counsel was ineffective for
    failing to adequately investigate various aspects of his defense.
    He asserts that the record is not sufficient to review these
    claims of inadequate investigation on direct appeal but that
    he is raising the claims in order to preserve them for collat-
    eral review.
    [14] In the case of an argument presented for the purpose
    of avoiding procedural bar to a future postconviction proceed-
    ing, appellate counsel must present a claim with enough par-
    ticularity 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 be able to recognize whether the claim was brought
    before the appellate court. State v. Cotton, 
    299 Neb. 650
    , 
    910 N.W.2d 102
    (2018). A claim insufficiently stated is no different
    than a claim not stated at all. 
    Id. Wells set
    forth the following claims in his brief:
    Wells’ trial counsel provided ineffective assistance when,
    despite Wells’ requests, he failed to independently inves-
    tigate or present the following defenses, and he failed
    to interview, depose, or subpoena each of the following
    entities and potential witnesses who would have provided
    evidence helpful to Wells’ defense:
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    • Trial counsel received information from . . . Henry that
    an acquaintance’s boyfriend committed the shootings,
    but [counsel] failed to investigate;
    • Trial counsel failed to impeach [a police witness] when
    he testified that . . . sight of Wells’ vehicle [was lost
    in] the [video] recordings when Wells’ vehicle, after
    leaving the . . . apartments following the argument with
    Henry, went eastbound . . . , despite trial counsel’s pos-
    session of police reports in which [the police witness]
    and/or other officers stated that the video showed Wells
    traveling eastbound . . . , then Southbound . . . , a route
    that took Wells to . . . Council Bluffs;
    • Trial counsel failed to subpoena cell phone records that
    would have demonstrated (1) pinging locations making
    it impossible for him to commit the shooting, and (2)
    that Wells’ regular calling pattern was very similar to
    the calling pattern relied upon by the State to argue in
    support of Wells’ guilt;
    • 
    Trial counsel failed to introduce into evidence a
    photograph of Wells at the time of the shootings to
    demonstrate that his hair did not match the witness’
    descriptions;
    • 
    Trial counsel failed to subpoena or otherwise obtain
    video evidence from businesses along the route from
    the . . . apartments to . . . Council Bluffs that would
    have shown he was not present at the . . . apartments at
    the time of the shootings;
    • Trial counsel failed to consult or engage a voice rec-
    ognition expert to contest the State’s witnesses’ claims
    that they recognized the voice of the shooter as Wells[’]
    despite having very little, if any, exposure to the sound
    of Wells’ voice;
    • 
    Trial counsel failed to consult or engage a firearms
    expert to evaluate and contest the testimony of the
    State’s firearms expert, whose testimony overstated the
    likelihood that it was a gun like the one Wells allegedly
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    set on Holmes’ bed that fired the bullets and casings
    found at the scene of the shootings;
    • Trial counsel failed to move for testing of swabs taken
    from Wells’ hands that, had they been subjected to gun-
    shot residue testing, would have shown that Wells did
    not fire a gun at the time of the shootings.
    Brief for appellant at 33-34.
    We agree that these claims cannot be determined on direct
    appeal, because the record on appeal does not disclose what
    steps trial counsel took in regard to these avenues of investiga-
    tion, what would have been found if the various actions had
    been taken by counsel, and whether the findings would have
    helped Wells’ defense. We include this listing so that a dis-
    trict court reviewing any petition for postconviction relief that
    Wells might bring in the future will be able to recognize what
    claims were brought before this court on direct appeal.
    VI. CONCLUSION
    We conclude that instruction No. 7, the transferred intent
    instruction, when read with all the instructions, did not mis-
    state the law; that there was sufficient evidence to support
    Wells’ conviction for unlawful discharge of a firearm; and that
    Wells’ claims of ineffective assistance of trial counsel either
    are without merit or cannot be determined based on the record
    in this direct appeal. We therefore affirm Wells’ convictions
    and sentences.
    A ffirmed.