State v. Guzman , 305 Neb. 376 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/22/2020 01:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. GUZMAN
    Cite as 
    305 Neb. 376
    State of Nebraska, appellee, v.
    Victor Guzman, appellant.
    ___ N.W.2d ___
    Filed March 27, 2020.    No. S-19-056.
    1. Effectiveness of Counsel: Appeal and Error. Assignments of error
    on direct appeal regarding ineffective assistance of trial counsel must
    specifically allege deficient performance, and an appellate court will not
    scour the remainder of the brief in search of such specificity.
    2. Sentences: Appeal and Error. When a defendant challenges a sentence
    imposed by the district court as excessive and the State believes the
    sentence to be erroneous but has not complied with Neb. Rev. Stat.
    § 29-2315.01 (Cum. Supp. 2018) or Neb. Rev. Stat. § 29-2321 (Reissue
    2016), the State may not assert such error via a cross-appeal.
    3. Appeal and Error. An appellate court may, at its option, notice plain
    error.
    4. Sentences: Statutes: Appeal and Error. A sentence that is contrary
    to the court’s statutory authority is an appropriate matter for plain
    error review.
    5. Motions to Suppress: Confessions: Constitutional Law: Miranda
    Rights: Appeal and Error. In reviewing a motion to suppress a
    statement based on its claimed involuntariness, including claims that
    law enforcement procured it by violating the safeguards established
    by the U.S. Supreme Court in Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966), an appellate court applies a
    two-part standard of review. Regarding historical facts, an appellate
    court reviews the trial court’s findings for clear error. Whether those
    facts meet constitutional standards, however, is a question of law,
    which an appellate court reviews independently of the trial court’s
    determination.
    6. Miranda Rights: Right to Counsel. In order to require cessation of
    custodial interrogation, the subject’s invocation of the right to counsel
    must be unambiguous and unequivocal.
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    STATE v. GUZMAN
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    7. Motions for Mistrial: Appeal and Error. Decisions regarding motions
    for mistrial are directed to the discretion of the trial court, and will be
    upheld in the absence of an abuse of discretion.
    8. Trial: Prosecuting Attorneys: Appeal and Error. When considering
    a claim of prosecutorial misconduct, an appellate court first considers
    whether the prosecutor’s acts constitute misconduct.
    9. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial mis-
    conduct encompasses conduct that violates legal or ethical standards
    for various conducts because the conduct will or may undermine a
    defendant’s right to a fair trial.
    10. Witnesses: Impeachment. Generally, the credibility of a witness may
    be attacked by any party, including the party who called the witness.
    11. ____: ____. One means of attacking the credibility of a witness is by
    showing inconsistency between his or her testimony at trial and what he
    or she said on previous occasions.
    12. ____: ____. A party cannot impeach his or her own witness without
    limitation.
    13. 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.
    14. 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 favor-
    ably to the State, is sufficient to support the conviction.
    15. Criminal Law: Evidence: Appeal and Error. When a criminal
    defend­ant challenges the sufficiency of the evidence upon which a
    conviction is based, 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.
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. GUZMAN
    Cite as 
    305 Neb. 376
    16. Sentences: Appeal and Error. An appellate court will not disturb a sen­
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
    17. Appeal and Error. Plain error may be found on appeal when an error
    unasserted or uncomplained of at trial is plainly evident from the
    record, affects a litigant’s substantial right, and, if uncorrected, would
    result in damage to the integrity, reputation, and fairness of the judi-
    cial process.
    18. Sentences: Appeal and Error. Where a sentence imposed within the
    statutory limits is alleged on appeal to be excessive, the appellate court
    must determine whether a sentencing court abused its discretion in con-
    sidering and applying the relevant factors as well as any applicable legal
    principles in determining the sentence to be imposed.
    19. ____: ____. The failure to impose an indeterminate sentence when
    required by statute constitutes plain error.
    20. ____: ____. An appellate court has the power on direct appeal to remand
    a cause for the imposition of a lawful sentence where an erroneous one
    has been pronounced.
    Appeal from the District Court for Sarpy County: Stefanie
    A. Martinez, Judge. Affirmed in part, and in part vacated and
    remanded for resentencing.
    Gregory A. Pivovar for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    I. INTRODUCTION
    Victor Guzman appeals from convictions, pursuant to jury
    verdict, and sentences for first degree sexual assault and tam-
    pering with a witness.
    Two issues predominate. We again enforce our requirement
    that assignments of error on direct appeal regarding ineffective
    assistance of trial counsel must specifically allege deficient
    performance. And we resolve the State’s uncertainty whether
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    STATE v. GUZMAN
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    sentencing error in a criminal case tried in the district court can
    or must be raised by a cross-appeal—concluding that generally,
    a cross-appeal is not permitted.
    We find no merit to Guzman’s claims regarding a motion to
    suppress, a motion for a mistrial, insufficiency of the evidence,
    and an excessive sentence for the sexual assault conviction.
    But we find plain error in the sentence for witness tamper-
    ing, which should have been an indeterminate rather than a
    determinate sentence. We vacate that sentence and remand
    the cause for resentencing, but we otherwise affirm Guzman’s
    convictions and the sentence imposed for the sexual assault
    conviction.
    II. BACKGROUND
    We begin by setting forth the factual background for the
    crimes charged. Bearing in mind our standard of review, we
    summarize this evidence in the light most favorable to the
    State. Additional background relevant to particular errors
    assigned will be supplied in the analysis.
    On September 22, 2017, B.G. held a party at her apartment,
    where she lived with her daughter. One of the invitees, Alexa
    Thomas, brought a group of eight or nine people whom B.G.
    did not know, including Guzman. B.G. consumed alcohol to
    the point of being “drunk.” She also snorted cocaine. B.G.
    began to feel sick and told everyone to leave. She vomited and
    then lay down in her bedroom.
    B.G. heard her bedroom door open and saw a group of
    unknown males standing in her doorway. She felt her clothing
    being removed and her arms and legs being held. B.G. testi-
    fied: “I said no. I said stop. Then I just gave up . . . [b]ecause
    there was [sic] too many.” Although B.G. did not give permis-
    sion for anyone to have sex with her, she could tell that more
    than one male penetrated her vagina. Someone turned her head
    and inserted his penis in her mouth. According to an attendee
    at the party, Guzman said he had sex with B.G.
    After B.G. began crying, the males left. B.G. checked on her
    daughter and then “passed out.” When B.G. woke, she called
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    STATE v. GUZMAN
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    305 Neb. 376
    her mother and asked her to come to B.G.’s apartment. At
    some point, B.G. told her mother that she had a party and “got
    raped.” B.G. went to a hospital and reported to a sexual assault
    nurse examiner that two assailants penetrated her vagina. A
    police officer spoke with B.G. at the hospital, and she told the
    officer that four to five males vaginally penetrated her with
    their penises.
    Police conducted an investigation following B.G.’s report
    of the incident. Thomas shared with police text messages she
    exchanged with Guzman the morning after the party. In these
    text messages, Guzman told Thomas that he had video of a
    group of males having sex with B.G. Thomas asked if Guzman
    had sex with B.G., but he replied that he “was just [the] cam-
    era man.” After meeting with Thomas, an officer prepared an
    affidavit for a search warrant for Guzman’s cell phones.
    The next day, officers went to Guzman’s place of employ-
    ment to interview him and obtain any of his digital devices
    capable of storing electronic media. Upon questioning by an
    officer, Guzman consistently denied having sex with B.G.
    After interviewing Guzman, police arrested him. A forensic
    examination of one of Guzman’s cell phones uncovered three
    short videos taken between 6:41 and 6:49 a.m. on September
    23, 2017, which showed penile-vaginal intercourse with B.G.;
    one video additionally showed a penis being inserted into
    B.G.’s mouth.
    The tampering with a witness charge arose out of Guzman’s
    October 2017 jail telephone call to Thomas. Thomas testified
    that Guzman wanted her to “tell [B.G.] to drop the charges.”
    Thomas complied, telling B.G. that Guzman wanted B.G. to
    drop the charges.
    The jury returned verdicts of guilty on first degree sexual
    assault and on tampering with a witness, and the court accepted
    the verdicts. The court imposed a sentence of 12 to 20 years’
    imprisonment for the sexual assault conviction and a concur-
    rent sentence of 2 years’ imprisonment for the witness tamper-
    ing conviction.
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    305 Nebraska Reports
    STATE v. GUZMAN
    Cite as 
    305 Neb. 376
    Guzman appealed. The State filed a petition to bypass review
    by the Nebraska Court of Appeals—which we granted—and
    asserted a purported cross-appeal in its brief.
    III. ASSIGNMENTS OF ERROR
    1. Guzman’s Appeal
    Guzman assigns that the district court erred in (1) overrul-
    ing his motion to suppress, (2) failing to grant his motion for
    mistrial based on prosecutorial misconduct, (3) failing to grant
    a directed verdict, and (4) imposing excessive sentences.
    Guzman also assigns that he received ineffective assistance
    of trial counsel. However, he failed to comply with our pro-
    nouncement regarding the specificity required for assignments
    of error alleging ineffective assistance of counsel.
    [1] We declared last year that assignments of error on
    direct appeal regarding ineffective assistance of trial coun-
    sel must specifically allege deficient performance. 1 And we
    stated that an appellate court will not scour the remainder
    of the brief in search of such specificity. 2 Since announc-
    ing the requirement, we have repeated it in three published
    decisions. 3 The purpose of a concurring opinion released on
    October 11, 2019, was to “remind the practicing bar” 4 of
    the requirement and caution counsel that “briefs filed after
    April 19, 2019, which fail to comply may have consequences
    beyond loss of such claims.” 5
    Guzman’s brief—filed 3 months after our pronouncement—
    failed to comply. His assignment of error alleged merely that
    1
    See State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
    (2019).
    2
    See
    id. 3 See
    State v. Munoz, 
    303 Neb. 69
    , 
    927 N.W.2d 25
    (2019); State v. Blaha,
    
    303 Neb. 415
    , 
    929 N.W.2d 494
    (2019); and State v. Lee, 
    304 Neb. 252
    ,
    
    934 N.W.2d 145
    (2019). See, also, State v. Weathers, 
    304 Neb. 402
    , 
    935 N.W.2d 185
    (2019).
    4
    State v. Lee, supra note 
    3, 304 Neb. at 285
    , 934 N.W.2d at 168 (Cassel, J.,
    concurring).
    5
    Id. at 286,
    934 N.W.2d at 168 (Cassel, J., concurring).
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    STATE v. GUZMAN
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    he “received ineffective assistance of trial counsel in numerous
    instances as more particularly set out hereinafter.” In Guzman’s
    reply brief, he argues that the assignment of error informed us
    that the particular allegations of ineffective assistance would
    be set forth with more particularity. And in the heading of his
    argument on the issue, Guzman identified five of the six par-
    ticular deficiencies in all boldface and capital letters.
    We decline to excuse counsel’s failure to comply with our
    pronouncement. Recently, the Court of Appeals exercised
    judicial grace by examining a brief’s argument section for
    the necessary specificity where the brief was filed 10 days
    after release of the opinion announcing the requirement. 6
    No such grace ought to be afforded a brief filed 3 months
    after the pronouncement. Accordingly, we do not consider
    Guzman’s assignment of error alleging ineffective assistance
    of counsel.
    2. State’s Purported Cross-Appeal
    Using a belt-and-suspenders approach, the State raised a
    sentencing matter both as plain error in its responsive brief and
    in a purported cross-appeal. The State asserts that the court
    erred by imposing a determinate sentence for Guzman’s wit-
    ness tampering conviction. Its brief recognizes that the matter
    could be deemed one of plain error, but explains that “out of
    an abundance of caution and uncertainty, [the State] raise[d]
    the matter in a cross[-]appeal.” 7 The State seeks guidance as
    to whether it can—and must—file a cross-appeal to raise an
    alleged error in sentencing where the district court was the trial
    court. We address this narrow question.
    When a sentence imposed appeared to be erroneous and
    the appellant did not identify the error, the State’s traditional
    practice has been to broach the issue in its brief as an asser-
    tion of plain error. With or without such an assertion, we have
    6
    See State v. Knox, No. A-19-266, 
    2020 WL 215849
    (Neb. App. Jan. 14,
    2020) (selected for posting to court website).
    7
    Brief for appellee at 36.
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    STATE v. GUZMAN
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    considered whether a sentence constituted plain error. 8 The
    State presumably proceeded in this manner because of case law
    declaring that the State has no right to cross-appeal in a crimi-
    nal case when the district court is the trial court. 9
    The State suggests the appellate courts have created uncer-
    tainty in this procedure by referencing the lack of a cross-
    appeal in opinions where the district court was the trial court.
    The Court of Appeals recently refused to address the State’s
    suggestion of error in sentencing, because the State did not
    cross-appeal. 10 And in two cases that did not squarely present
    whether the State could cross-appeal, we stated “although the
    State did not file a cross-appeal” 11 before considering sentenc-
    ing errors urged as plain error by the State. To the extent this
    language has created uncertainty, we disavow any suggestion
    that we were implying the State could have cross-appealed in
    those cases.
    The preclusion of a cross-appeal by the State in a criminal
    case where the district court is the trial court relates to the
    State’s limited right to appeal in a criminal case. Absent spe-
    cific statutory authorization, the State generally has no right to
    appeal an adverse ruling in a criminal case. 12 The Legislature
    provided two avenues for such an appeal: an exception pro-
    ceeding under Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018)
    8
    See, e.g., State v. Briggs, 
    303 Neb. 352
    , 
    929 N.W.2d 65
    (2019); State v.
    Lessley, 
    301 Neb. 734
    , 
    919 N.W.2d 884
    (2018); State v. Thompson, 
    301 Neb. 472
    , 
    919 N.W.2d 122
    (2018); State v. Vanness, 
    300 Neb. 159
    , 
    912 N.W.2d 736
    (2018); State v. Kidder, 
    299 Neb. 232
    , 
    908 N.W.2d 1
    (2018);
    State v. Mora, 
    298 Neb. 185
    , 
    903 N.W.2d 244
    (2017).
    9
    See, State v. Halsey, 
    232 Neb. 658
    , 
    441 N.W.2d 877
    (1989); State v.
    Martinez, 
    198 Neb. 347
    , 
    252 N.W.2d 630
    (1977); State v. Schnell, 17 Neb.
    App. 211, 
    757 N.W.2d 732
    (2008). See, also, State v. Mortensen, 
    287 Neb. 158
    , 
    841 N.W.2d 393
    (2014).
    10
    State v. Magallanes, No. A-18-934, 
    2019 WL 3934465
    (Neb. App. Aug.
    20, 2019) (selected for posting to court website).
    11
    See State v. Betancourt-Garcia, 
    295 Neb. 170
    , 190, 
    887 N.W.2d 296
    , 312
    (2016). Accord State v. Aguallo, 
    294 Neb. 177
    , 
    881 N.W.2d 918
    (2016).
    12
    State v. Thalken, 
    299 Neb. 857
    , 
    911 N.W.2d 562
    (2018).
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    and an excessively lenient sentence appeal authorized by Neb.
    Rev. Stat. § 29-2320 (Reissue 2016). 13
    The right of appeal is purely statutory. 14 A court rule pro-
    vides in part that “[t]he proper filing of an appeal shall vest in
    an appellee the right to a cross-appeal against any other party
    to the appeal.” 15 But a court rule cannot provide a right to
    appeal that does not exist in statute. And here, the State did not
    comply with the statutory prerequisites to appeal, 16 the dictates
    of which are to be strictly construed against the government. 17
    Thus, it could not assert a cross-appeal. We express no opinion
    as to whether the State could assert a cross-appeal if it had
    complied with those statutory requisites.
    [2-4] When a defendant challenges a sentence imposed by
    the district court as excessive and the State believes the sen-
    tence to be erroneous but has not complied with § 29-2315.01
    or § 29-2321, the State may not assert such error via a cross-
    appeal. We see no error in the traditional procedure where the
    State identifies any plain sentencing errors in its responsive
    brief. An appellate court may, at its option, notice plain error. 18
    A sentence that is contrary to the court’s statutory authority is
    an appropriate matter for plain error review. 19
    IV. ANALYSIS
    1. Motion to Suppress
    (a) Additional Background
    Law enforcement officers interviewed Guzman and recorded
    the conversation. When Guzman was brought into a room at
    13
    See State v. Vasquez, 
    271 Neb. 906
    , 
    716 N.W.2d 443
    (2006).
    14
    State v. Thalken, supra note 12.
    15
    Neb. Ct. R. App. P. § 2-101(E) (rev. 2015).
    16
    See, § 29-2315.01 and Neb. Rev. Stat. § 29-2321 (Reissue 2016).
    17
    See State v. Stafford, 
    278 Neb. 109
    , 
    767 N.W.2d 507
    (2009).
    18
    See State v. Artis, 
    296 Neb. 172
    , 
    893 N.W.2d 421
    (2017), modified on
    denial of rehearing 
    296 Neb. 606
    , 
    894 N.W.2d 349
    .
    19
    State v. Kantaras, 
    294 Neb. 960
    , 
    885 N.W.2d 558
    (2016).
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    his place of employment, a detective identified himself as a
    police officer and read Guzman his Miranda rights. There
    is no dispute that from that point forward, Guzman was in
    custody.
    Guzman moved to suppress his statements to police. He
    claimed that at almost 2 hours into the interview, he “clearly
    invoked his right to counsel, asking if he had the opportunity
    to get a lawyer, to which officers responded no.”
    At the hearing on the motion to suppress, a detective testi-
    fied that Guzman began asking questions “about when he could
    get a lawyer.” According to the detective, Guzman did not say
    he wanted a lawyer; rather, “he just asked about the process of
    getting one.” The detective testified: “We were talking about
    the search warrant. Essentially he was asking questions if he
    could get an attorney to deal with . . . the search warrant, if it
    could be stopped.”
    The court overruled the motion to suppress. With regard to
    the invocation of a right to counsel, the court stated:
    [A]t the 1 hour, 54 minute mark, [Guzman] asked officers,
    “Can I talk to a lawyer first?” . . . [W]hen putting it in
    the context of what was occurring during said exchange,
    the Court finds that [Guzman] did not clearly invoke his
    rights. Specifically, law enforcement [officers were] in
    the process of searching [Guzman’s] phone, and while
    doing so, [Guzman] was conversing with them about the
    search and asked if he could speak with a lawyer before
    they searched his phone. [They] informed him that they
    already had a search warrant and that he did not get to
    speak to an attorney before they conducted the search.
    Thus, the Court finds that [Guzman’s] statement of “Can
    I talk to a lawyer first” was in the context of the search,
    rather than a clear invocation of his Miranda rights for
    purposes of the custodial interrogation.
    (b) Standard of Review
    [5] In reviewing a motion to suppress a statement based
    on its claimed involuntariness, including claims that law
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    enforcement procured it by violating the safeguards estab-
    lished by the U.S. Supreme Court in Miranda v. Arizona, 20
    an appellate court applies a two-part standard of review.
    Regarding historical facts, an appellate court reviews the trial
    court’s findings for clear error. Whether those facts meet
    constitutional standards, however, is a question of law, which
    an appellate court reviews independently of the trial court’s
    determination. 21
    (c) Discussion
    On appeal, Guzman does not dispute that he waived his
    Miranda rights during the custodial interrogation. “[A]fter
    a knowing and voluntary waiver of the Miranda rights, law
    enforcement officers may continue questioning until and unless
    the suspect clearly requests an attorney.” 22 And Guzman does
    not challenge the district court’s factual findings. Rather,
    Guzman argues that he requested an attorney at the 1-hour-
    54-minute mark of the recorded interrogation and that thus, any
    statements he made should have been suppressed.
    [6] In order to require cessation of custodial interrogation,
    the subject’s invocation of the right to counsel must be unam-
    biguous and unequivocal. 23 “Statements such as ‘“[m]aybe
    I should talk to a lawyer”’ or ‘“I probably should have an
    attorney”’ do not meet this standard.” 24 Guzman contends that
    his question—“‘Can I talk to a lawyer first?’”—was a clear
    invocation of the right to counsel. We disagree. “An expression
    of doubt or uncertainty cannot be considered unequivocal.” 25
    Similarly, an Arizona court determined that “‘Do you think I
    20
    Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
         (1966).
    21
    State v. Clifton, 
    296 Neb. 135
    , 
    892 N.W.2d 112
    (2017).
    22
    Davis v. United States, 
    512 U.S. 452
    , 461, 
    114 S. Ct. 2350
    , 
    129 L. Ed. 2d 362
    (1994).
    23
    State v. Goodwin, 
    278 Neb. 945
    , 
    774 N.W.2d 733
    (2009).
    24
    Id. at 959,
    774 N.W.2d at 744-45.
    25
    State v. Lynch, 
    169 N.H. 689
    , 697, 
    156 A.3d 1012
    , 1019 (2017).
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    should get a lawyer?’” does not constitute an invocation of
    right to counsel. 26 Here, Guzman never explicitly stated that he
    wished to have an attorney present.
    The circumstances surrounding an alleged invocation are
    part of the objective inquiry into whether such an invocation
    of the right to counsel was made. The U.S. Supreme Court
    explained that “if a suspect makes a reference to an attorney
    that is ambiguous or equivocal in that a reasonable officer in
    light of the circumstances would have understood only that the
    suspect might be invoking the right to counsel, [the Court’s]
    precedents do not require the cessation of questioning.” 27 Here,
    the officers perceived Guzman’s question about an attorney to
    be in connection with the search for his cell phones and not an
    assertion that Guzman did not wish to speak without an attor-
    ney present. That perception was reasonable under the circum-
    stances. The district court did not err in overruling Guzman’s
    motion to suppress.
    2. Motion for Mistrial
    (a) Additional Background
    In March 2018, Ruben Rodriguez was deposed on Guzman’s
    behalf. At trial, the State called Rodriguez as a witness during
    the State’s case in chief. When asked where he had lived in
    the past 5 years, Rodriguez provided information which was
    inconsistent with his deposition testimony. When Rodriguez
    testified that he saw B.G. at her party in October 2017, the
    prosecutor impeached him with his deposition testimony that
    the party was in September. When Rodriguez named seven
    people with whom he went to the party, the State pointed out
    that Rodriguez testified in his deposition that he went to the
    party with four individuals. During trial, Rodriguez also gave
    answers different from those in his deposition as to when he
    took an individual home, how may beers he consumed at the
    26
    See State v. Prince, 
    160 Ariz. 268
    , 272, 
    772 P.2d 1121
    , 1125 (1989).
    27
    Davis v. United States, supra note 
    22, 512 U.S. at 459
    (emphasis in
    original).
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    party, whether a certain individual was at the party, whether he
    saw Guzman walk B.G. up the stairs, and whether he made a
    “gas station run.”
    In a conversation out of the jury’s presence and unprompted
    by defense counsel, the court raised a concern that Rodriguez
    provided no substantive evidence. The court opined that “the
    sole purpose for hi[s] being called was to discredit him in
    any testimony he may have,” which the court did not think
    was permissible. The prosecutor responded that he expected
    Rodriguez would testify consistently with his deposition.
    Because Rodriguez did not, the prosecutor wanted “to make
    sure that the record’s clear on what he’s testifying to.” The
    prosecutor stated that he did not call Rodriguez “simply to
    impeach him.” The court then directed the parties to brief
    whether it is permissible to call a witness for the limited
    purpose of discrediting the witness. With the jury present,
    the court announced, “There ha[ve] been some conversations
    between Counsel and I need them to follow up on something
    for me, so we’re going to be recessing for the weekend a little
    bit early today.”
    When trial resumed after the weekend break, Guzman
    moved for a mistrial. His counsel explained that he subpoenaed
    Rodriguez, because Rodriguez had exculpatory information,
    but that “what the State did was discredit that witness before
    [the defense] could call him and elicit the exculpatory informa-
    tion.” The State argued that it “can’t control whether someone
    is going to get up there and lie or not, and they [sic] had no
    reason to expect them [sic] to.” The court found that there was
    not sufficient evidence that the State called Rodriguez for the
    purpose of impeachment.
    (b) Standard of Review
    [7] Decisions regarding motions for mistrial are directed
    to the discretion of the trial court, and will be upheld in the
    absence of an abuse of discretion. 28
    28
    State v. Schmaltz, 
    304 Neb. 74
    , 
    933 N.W.2d 435
    (2019).
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    (c) Discussion
    Guzman argues that the court erred in not granting his
    motion for mistrial based on prosecutorial misconduct. Before
    considering whether a mistrial would be proper, we must deter-
    mine whether there was misconduct by the prosecution.
    [8,9] When considering a claim of prosecutorial misconduct,
    an appellate court first considers whether the prosecutor’s acts
    constitute misconduct. 29 Prosecutorial misconduct encompasses
    conduct that violates legal or ethical standards for various con-
    ducts because the conduct will or may undermine a defendant’s
    right to a fair trial. 30 Prosecutors are charged with the duty
    to conduct criminal trials in such a manner that the accused
    may have a fair and impartial trial, and prosecutors are not to
    inflame the prejudices or excite the passions of the jury against
    the accused. 31 A prosecutor’s conduct that does not mislead and
    unduly influence the jury is not misconduct. 32
    According to Guzman, the prosecutor engaged in misconduct
    by calling Rodriguez as a witness and impeaching him with
    testimony from his deposition on “trivial matters.” 33 Guzman
    contends that the State attacked Rodriguez’ credibility before
    Guzman could call Rodriguez as a witness.
    [10-12] Generally, the credibility of a witness may be
    attacked by any party, including the party who called the wit-
    ness. 34 One means of attacking the credibility of a witness is by
    showing inconsistency between his or her testimony at trial and
    what he or she said on previous occasions. 35 But a party cannot
    impeach his or her own witness without limitation. 36
    29
    Id. 30 Id.
    31
    Id. 32 Id.
    33
    Brief for appellant at 25.
    34
    State v. Dominguez, 
    290 Neb. 477
    , 
    860 N.W.2d 732
    (2015).
    35
    Id. 36 Id.
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    The State’s impeachment of Rodriguez does not amount
    to prosecutorial misconduct. The State called Rodriguez to
    testify, because he had information useful to the State’s case.
    The State had no reason to anticipate that Rodriguez would
    not testify consistently with his sworn deposition testimony.
    Assuming without deciding that Guzman’s motion for mistrial
    was timely, the court did not abuse its discretion in overruling
    the motion.
    3. Motion for Directed Verdict
    (a) Additional Background
    [13] Guzman challenges the denial of his motion for
    directed verdict, but he waived the issue by presenting evi-
    dence. After the court overruled Guzman’s motion for a
    directed verdict of acquittal on both charges, the defense
    proceeded to call a witness. A defendant who moves for dis-
    missal 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. 37 We con-
    sider Guzman’s argument as one challenging the sufficiency
    of the evidence.
    (b) Standard of Review
    [14] Regardless of whether the evidence is direct, circum-
    stantial, 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 stan-
    dard is the same: In reviewing a criminal conviction, an appel-
    late court does not resolve conflicts in the evidence, pass on
    the credibility of witnesses, or reweigh the evidence; such mat-
    ters are for the finder of fact, and a conviction will be affirmed,
    37
    State v. Briggs, supra note 8.
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    in the absence of prejudicial error, if the evidence admitted at
    trial, viewed and construed most favorably to the State, is suf-
    ficient to support the conviction. 38
    (c) Discussion
    [15] When a criminal defendant challenges the sufficiency
    of the evidence upon which a conviction is based, 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. 39 The State met its bur-
    den with respect to both charges.
    With respect to the sexual assault charge, Guzman’s brief
    does little more than attack the credibility of B.G. But an
    appellate court does not pass on the credibility of witnesses or
    reweigh the evidence. B.G. testified that she did not consent
    to having sex with anyone on the night of her party, and an
    attendee at the party testified that Guzman said he had sex
    with B.G. There was also abundant testimony about B.G.’s
    intoxication. Viewing the evidence most favorably to the State,
    a fact finder could conclude that Guzman subjected B.G. to
    sexual penetration without her consent or under circumstances
    when he knew or should have known that B.G. was mentally
    or physically incapable of resisting or appraising the nature of
    her conduct. 40
    Guzman also contends that the State failed to adduce suf-
    ficient evidence to support the charge of tampering with a wit-
    ness. Under Neb. Rev. Stat. § 28-919(1) (Reissue 2016):
    A person commits the offense of tampering with a wit-
    ness or informant if, believing that an official proceeding
    or investigation of a criminal or civil matter is pending
    or about to be instituted, he or she attempts to induce or
    otherwise cause a witness or informant to:
    38
    State v. Case, 
    304 Neb. 829
    , 
    937 N.W.2d 216
    (2020).
    39
    Id. 40 See
    Neb. Rev. Stat. § 28-319(1) (Reissue 2016).
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    (a) Testify or inform falsely;
    (b) Withhold any testimony, information, document,
    or thing;
    (c) Elude legal process summoning him or her to tes-
    tify or supply evidence; or
    (d) Absent himself or herself from any proceeding
    or investigation to which he or she has been legally
    summoned.
    Guzman asserts that he merely relayed a message asking
    B.G. to drop the charges and that such action did not constitute
    tampering with a witness. He claims that he did not threaten or
    bribe B.G., did not ask her to testify falsely, and did not ask
    her not to go to court. But B.G. reported that she was sexually
    assaulted. By asking B.G. to drop the charges, Guzman was
    essentially asking her to inform falsely or to withhold informa-
    tion. The State adduced sufficient evidence at trial to support
    the conviction for tampering with a witness.
    4. Sentences
    (a) Additional Background
    Finally, Guzman argues that his sentences were excessive.
    For first degree sexual assault, a Class II felony, 41 the court
    imposed a sentence of 12 to 20 years’ incarceration. At the
    time of the crime and sentencing, tampering with a witness was
    a Class IV felony. 42 For that conviction, the court imposed a
    concurrent sentence of 2 years.
    (b) Standard of Review
    [16] An appellate court will not disturb a sen­tence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court. 43
    [17] Plain error may be found on appeal when an error unas-
    serted or uncomplained of at trial is plainly evident from the
    41
    See § 28-319(2).
    42
    See § 28-919(3).
    43
    State v. Iddings, 
    304 Neb. 759
    , 
    936 N.W.2d 747
    (2020).
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    record, affects a litigant’s substantial right, and, if uncorrected,
    would result in damage to the integrity, reputation, and fairness
    of the judicial process. 44
    (c) Discussion
    [18] Where a sentence imposed within the statutory limits
    is alleged on appeal to be excessive, the appellate court must
    determine whether a sentencing court abused its discretion in
    considering and applying the relevant factors as well as any
    applicable legal principles in determining the sentence to be
    imposed. 45 In determining a sentence to be imposed, relevant
    factors customarily considered and applied are 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. 46 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 the facts and circumstances surrounding the
    defendant’s life. 47
    Guzman argues that an examination of the presentence report
    shows the sentencing factors weigh in favor of a lighter sen-
    tence. Some do. According to the presentence report, Guzman
    was 21 years old, was a high school graduate, and was consist­
    ently employed prior to incarceration. His minimal criminal
    record consisted of traffic violations, an “MIP,” and a curfew
    violation. But other considerations do not favor a light sen-
    tence. An instrument designed to determine a defendant’s risk
    for recidivism put him in the high risk range to reoffend. With
    respect to the charges he stated: “‘Bullshit. It’s embarrassing
    and has affected everyone around me. This case has ruined
    44
    State v. Briggs, supra note 8.
    45
    See State v. Iddings, supra note 43.
    46
    Id. 47 Id.
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    my character. It’s the worst thing that could have happened
    to me.’” We cannot say that the court abused its discretion in
    sentencing Guzman.
    However, the State asserts that the court’s sentence for the
    witness tampering conviction was erroneous. Here, the court
    imposed a sentence for a Class II felony and a concurrent
    determinate sentence for a Class IV felony for offenses occur-
    ring in 2017. But a statute provides:
    For any sentence of imprisonment for a Class . . . IV fel-
    ony . . . imposed consecutively or concurrently with . . . a
    sentence of imprisonment for a Class . . . II . . . felony, the
    court shall impose an indeterminate sentence within the
    applicable range in section 28-105 that does not include a
    period of post-release supervision, in accordance with the
    process set forth in section 29-2204. 48
    [19,20] The court plainly erred by imposing a determinate
    sentence for the Class IV felony. The failure to impose an inde-
    terminate sentence when required by statute constitutes plain
    error. 49 An appellate court has the power on direct appeal to
    remand a cause for the imposition of a lawful sentence where
    an erroneous one has been pronounced. 50 We therefore vacate
    Guzman’s sentence for tampering with a witness and remand
    the cause for resentencing on that conviction.
    V. CONCLUSION
    Because Guzman failed to include the required specificity in
    his assignment of error alleging ineffective assistance of trial
    counsel, we do not consider it. And we clarify that the State
    has no right to cross-appeal under these circumstances.
    We conclude that the court did not err in overruling
    Guzman’s motion to suppress and motion for mistrial. Viewing
    the evidence in the light most favorable to the State, we further
    48
    Neb. Rev. Stat. § 29-2204.02(4) (Reissue 2016) (emphasis supplied).
    49
    State v. Briggs, supra note 8.
    50
    See State v. Kantaras, supra note 19.
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    conclude that the evidence at trial supported Guzman’s con-
    victions. Finally, we determine that the court did not impose
    excessive sentences. However, because the court erred by
    imposing a determinate sentence for the witness tampering
    conviction, we vacate that sentence and remand the cause for
    resentencing on that count only.
    Affirmed in part, and in part vacated
    and remanded for resentencing.