State v. Alford ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/26/2016 09:06 AM CDT
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STATE v. ALFORD
Cite as 24 Neb. Ct. App. 213
State of Nebraska, appellee, v.
Cletus S. A lford, appellant.
___ N.W.2d ___
Filed July 26, 2016. No. A-15-527.
1. Jury Instructions. Whether jury instructions given by a trial court are
correct is a question of law.
2. Criminal Law: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact.
3. ____: ____: ____. 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.
4. Effectiveness of Counsel. A claim that defense counsel provided inef-
fective assistance presents a mixed question of law and fact.
5. Effectiveness of Counsel: Appeal and Error. When reviewing a claim
of ineffective assistance of counsel, an appellate court reviews the fac-
tual findings of the lower court for clear error.
6. ____: ____. With regard to the questions of counsel’s performance or
prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), an appellate court reviews such legal determinations inde-
pendently of the lower court’s decision.
7. 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.
8. ____: ____. An abuse of discretion in imposing a sentence occurs when
a sentencing court’s reasons or rulings are clearly untenable and unfairly
deprive the litigant of a substantial right and a just result.
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STATE v. ALFORD
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9. Criminal Law: Plea in Abatement. A defective verification is subject
to a motion to quash or a plea in abatement.
10. Criminal Law: Pleadings: Waiver. A defendant who pleads the general
issue without raising the question waives the defect.
11. Criminal Law: Pleas: Plea in Abatement: Waiver. A plea of not guilty
ordinarily waives all matters which might have been raised by a motion
to quash or a plea in abatement.
12. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
13. Criminal Law: Lesser-Included Offenses: Jury Instructions. In non-
homicide cases, a trial court must instruct on a lesser-included offense
only if requested to do so.
14. Criminal Law: Directed Verdict. In a criminal case, a court can direct
a verdict only when there is a complete failure of evidence to establish
an essential element of the crime charged or the evidence is so doubtful
in character, lacking probative value, that a finding of guilt based on
such evidence cannot be sustained.
15. Directed Verdict. If there is any evidence which will sustain a find-
ing for the party against whom a motion for directed verdict is made,
the case may not be decided as a matter of law, and a verdict may not
be directed.
16. Postconviction: Effectiveness of Counsel: Records: Appeal and
Error. In order to raise the issue of ineffective assistance of trial counsel
where appellate counsel is different from trial counsel, a defendant must
raise on direct appeal any issue of ineffective assistance of trial counsel
which is known to the defendant or is apparent from the record, or the
issue will be procedurally barred on postconviction review.
17. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
18. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
ineffective assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.
19. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient perform­
ance actually prejudiced his or her defense.
20. ____: ____. 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 in the area.
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21. ____: ____. To show prejudice, the defendant must demonstrate reason-
able probability that but for counsel’s deficient performance, the result
of the proceeding would have been different.
22. Effectiveness of Counsel: Presumptions: Appeal and Error. The
entire effectiveness analysis is viewed with a strong presumption that
counsel’s actions were reasonable and that even if found unreasonable,
the error justifies setting aside the judgment only if there was prejudice.
Deficient performance and prejudice can be addressed in either order.
23. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (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.
24. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all of the facts and circumstances surround-
ing the defendant’s life.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
Gregory A. Pivovar for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Pirtle and Bishop, Judges.
Pirtle, Judge.
I. INTRODUCTION
After a jury trial, Cletus S. Alford was convicted of second
degree assault, use of a deadly weapon to commit a felony, and
possession of a deadly weapon by a prohibited person. Alford
appeals his convictions and sentences. For the reasons that fol-
low, we affirm.
II. PROCEDURAL BACKGROUND
On June 22, 2010, Alford was charged by complaint in the
county court for Douglas County with second degree assault, a
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Class III felony; use of a deadly weapon to commit a felony, a
Class II felony; and possession of a deadly weapon by a pro-
hibited person, a Class III felony. On June 30, Alford appeared
before the county court and entered pleas of not guilty to all
counts. A preliminary hearing was held, and the county court
found probable cause to believe Alford had committed the
offenses charged. The matter was bound over to the district
court for Douglas County.
On July 1, 2010, Alford was charged by information in the
district court. It was alleged that he had committed the same
three criminal offenses charged in the original complaints.
Alford entered pleas of not guilty to all charges.
A jury trial was held on November 1 and 2, 2010. At the
conclusion of the evidence, a jury instruction conference was
held. Alford did not request that the district court instruct the
jury that third degree assault was a lesser-included offense
of second degree assault. The case was submitted to the
jury, which returned guilty verdicts on all counts. The district
court accepted the jury’s verdicts and sentencing was held on
December 17, 2010. The district court sentenced Alford to 5
to 5 years’ imprisonment for each conviction, and it ordered
the three sentences to run consecutively to one another and to
a sentence previously imposed. Alford received credit for 178
days served.
Alford filed a motion for postconviction relief alleging
that he received ineffective assistance of counsel for failure
to file a direct appeal within 30 days after sentencing. After
an evidentiary hearing on the sole issue of whether trial
counsel was ineffective for failure to file a direct appeal, the
district court granted a new direct appeal. Alford timely filed
this action.
III. FACTUAL BACKGROUND
Approximately 1 month prior to the offenses charged,
Detwone Smith, his girlfriend Megan Marie Odle, and her
3-year-old son moved into an apartment building in Omaha.
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They shared an apartment on the third floor of the building
with KýAra Williams. Alford is Odle’s ex-boyfriend, and the
move was undertaken in an effort to avoid further contact with
Alford, who had been harassing Odle.
On June 21, 2010, Smith, Odle, and her son left the apart-
ment to go to the grocery store. When they reached the car,
they discovered that they had left the car keys upstairs, and
Odle returned to get them while Smith and Odle’s son waited
in the car. Odle testified that she was pushed against a wall
inside the apartment building by Alford, and he held her there
demanding to speak to her. Odle yelled to Williams for help.
Williams was inside of the apartment and responded. Once she
saw what was happening, she pulled Alford away from Odle.
Williams testified that she was able to clearly see Alford’s
hands on Odle’s mouth and throat and that there was noth-
ing on or in his hands at the time. Alford followed Odle and
Williams to the apartment, where he begged the women not to
call the police. After a few minutes, Alford left. Odle attempted
to call Smith, and when he did not answer, Williams went
down the stairs to check on him. Odle stayed in the apartment
to calm down after the confrontation.
Smith testified that he and Odle’s son returned to the apart-
ment building to look for Odle, because she had been gone
for 11 to 12 minutes. Smith saw someone walking down the
stairs of the apartment building. When Smith reached the bot-
tom of the flight of stairs that Alford was descending, Smith
recognized him. Smith was immediately concerned for Odle’s
safety. Alford demanded that Smith hand Odle’s son over
to him, but Smith did not comply. He testified that Alford
punched him twice on the side of the face with his bare fist
and that the second punch knocked him to the ground. Smith
said Alford reached into his pocket and slipped on a pair of
brass knuckles. He described the brass knuckles as being
silver and bulky, stretching all the way across Alford’s fin-
gers with a metal bar along the bottom. He noted there were
­jagged pieces of metal around each knuckle. Smith testified
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that he had no doubt Alford used brass knuckles because
he had seen brass knuckles before, and he clearly saw brass
knuckles on Alford’s hand.
Alford grabbed Smith by the hair with his left hand and
began punching him in the face with his right hand. Smith
partially blocked many of Alford’s punches, but one punch
clipped Smith’s lower lip and tore it open, causing blood to
immediately flow from the wound. Smith testified that one
punch landed squarely on his forehead. He said the punches
after Alford put on the brass knuckles felt as if they had been
amplified “times like 50.”
Williams was present for part of the assault, removing
Odle’s son from Smith’s arms and taking him to safety. Alford
continued to throw punches at Smith until Williams called the
police. Williams could not testify with certainty that Alford
had punched Smith with brass knuckles, but she saw some-
thing shiny on his hand. Williams testified that there had been
nothing in or on Alford’s hand moments earlier when she saw
his hands on Odle’s neck.
After Alford left the building, Smith crawled to the landing
of the second floor, where he collapsed. Odle came down the
stairs to find Smith bloody and motionless. She testified that
she thought he was dead because he did not respond when
she spoke to him. She said that immediately after the attack,
Smith was “out of it,” mumbling, and disoriented. She asked
him whether he had been shot, and Smith responded, “He hit
me with brass.” Smith also told the paramedics and the police
that he had been hit with brass knuckles.
Smith was transported to a hospital where he underwent
a CT scan and x rays. Smith sustained a concussion, a large
bump on his forehead, swelling on both sides of his face,
fractures to his nose and jaw, a jagged cut on his lower
lip, and various scrapes and bruises on his face, arms, and
back. The cut on Smith’s lower lip required 12 stitches, and
a portion of his lip had been torn off. In the days immedi-
ately following the assault, Smith’s face became increasingly
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swollen and sore, and he had difficulty opening his mouth
and chewing. Odle testified that the damage looked worse in
person than it appears in the photographs taken on the day of
the assault.
IV. ASSIGNMENTS OF ERROR
Alford asserts the district court erred in (1) not dismissing
this matter due to defects in charging and the complaint, (2)
not properly instructing the jury regarding a lesser-included
offense, and (3) overruling his motion for directed verdict.
He also asserts there was insufficient evidence to support his
convictions, that he received ineffective assistance of counsel,
and that the trial court abused its discretion in imposing exces-
sive sentences.
V. STANDARD OF REVIEW
[1] Whether jury instructions given by a trial court are cor-
rect is a question of law. State v. Samayoa, 292 Neb. 334, 873
N.W.2d 449 (2015).
[2,3] 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. State v. Escamilla, 291
Neb. 181, 864 N.W.2d 376 (2015). 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. Id.
[4-6] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact. State
v. DeJong, 292 Neb. 305, 872 N.W.2d 275 (2015). When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error. Id. With regard to the questions of counsel’s
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performance or prejudice to the defendant as part of the two-
pronged test articulated in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate
court reviews such legal determinations independently of the
lower court’s decision. State v. DeJong, supra.
[7,8] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Trice, 292 Neb. 482, 874 N.W.2d 286
(2016). An abuse of discretion in imposing a sentence occurs
when a sentencing court’s reasons or rulings are clearly unten-
able and unfairly deprive the litigant of a substantial right and
a just result. Id.
VI. ANALYSIS
1. Defects in Complaint
Alford asserts the district court erred in not dismissing the
matter for fatal defects in the arrest and charging. He argues
that the court lacked jurisdiction and that he was deprived of
constitutional rights because the original arrest warrant was
issued upon an insufficient criminal complaint and because
there was no probable cause for his arrest.
Criminal complaints were filed in the county court for
Douglas County on June 22, 2010, alleging three criminal
violations: second degree assault, use of a deadly weapon to
commit a felony, and possession of a deadly weapon by a pro-
hibited person. On June 30, Alford appeared before the county
court and entered pleas of not guilty. The matter was bound
over to the district court for Douglas County. An information
was filed on July 1, charging Alford with the same three crimi-
nal counts.
Alford’s argument is somewhat unclear, but it appears that
he argues that the complaints filed in the county court were
invalid because they were filed by an Omaha police officer
and not signed on the oath of the victim, Smith. He further
argues that the complaints were not valid because they were
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not notarized by the clerk of the county court at the time
of filing.
Alford has cited no authority requiring the district court
to review the sufficiency of the complaints filed in county
court after the matter has been bound over and charged by
information.
As noted in the State’s brief, Alford’s argument is taken
almost verbatim from Morrow v. State, 140 Neb. 592, 300
N.W. 843 (1941), in which the Nebraska Supreme Court found
it was the duty of the district court to order a new and proper
complaint to be filed due to defects in the complaint. However,
in that case, a motion to quash was filed, calling attention to
the defective complaint, a procedural step which was not taken
in this case.
[9-11] A defective verification is subject to a motion to
quash or a plea in abatement. State v. Gilman, 181 Neb.
390, 148 N.W.2d 847 (1967). A defendant who pleads the
general issue without raising the question, however, waives
the defect. Id. A plea of not guilty ordinarily waives all mat-
ters which might have been raised by a motion to quash or a
plea in abatement. State v. Moss, 182 Neb. 502, 155 N.W.2d
435 (1968).
The district court’s jurisdiction was based upon the infor-
mation filed on July 1, 2010, in the district court, not the
complaints filed on June 22 in the county court. The infor-
mation filed in the district court was filed by the prosecut-
ing attorney, and notarized by a deputy clerk of the district
court, fulfilling the requirements of Neb. Rev. Stat. § 29-404
(Reissue 2008). Alford filed a written waiver of physical
appearance on July 2, in which he asked the court to enter
pleas of not guilty on his behalf. Any defects appearing in
the information before the district court were waived when
Alford entered pleas of not guilty to the charges. See State v.
Jones, 254 Neb. 212, 575 N.W.2d 156 (1998) (objections to
verification are waived if not made before arraignment and
plea), disapproved on other grounds, State v. Silvers, 255
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Neb. 702, 587 N.W.2d 325 (1998). This assignment of error
is without merit.
[12] Alford asserts, but does not argue, that the district court
erred in failing to dismiss this case because the arrest warrant
was issued without probable cause. An alleged error must be
both specifically assigned and specifically argued in the brief
of the party asserting the error to be considered by an appellate
court. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
Therefore, we do not address this assertion.
2. Jury Instructions
Alford asserts the district court erred by failing to instruct
the jury that third degree assault was a lesser-included offense
of second degree assault. He asserts the district court was
obligated to give the lesser-included instruction regardless of
whether it was requested.
[13] In State v. Smith, 284 Neb. 636, 822 N.W.2d 401
(2012), the Nebraska Supreme Court traced the history of case
law regarding lesser-included offenses. Although the court
noted some inconsistency in the language used, it concluded
that, in general, since the decision in McIntyre v. State, 116
Neb. 600, 218 N.W. 401 (1928), the case law has been con-
sistent that in nonhomicide cases, “a trial court must instruct
on a lesser-included offense only if requested to do so.” State
v. Smith, 284 Neb. at 651, 822 N.W.2d at 413. See, State v.
Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009) (child abuse);
State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008)
(possession of controlled substance); State v. Williams, 243
Neb. 959, 503 N.W.2d 561 (1993) (assault). See, also, State v.
Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016) (although
homicide case, Nebraska Supreme Court noted it had clari-
fied in State v. Smith, supra, that in nonhomicide cases, trial
court does not have duty to instruct on lesser-included offenses
unless defendant requests instruction).
We find the trial court did not err when it did not give an
instruction stating that third degree assault is a lesser-included
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offense of second degree assault because the instruction was
not requested.
3. Sufficiency of Evidence
Alford asserts that the district court erred in denying his
motion for directed verdict and that the jury erred in finding
there was sufficient evidence to find him guilty beyond a rea-
sonable doubt. In his brief, he argues these two assignments
together, challenging the sufficiency of the evidence to sup-
port his convictions.
Alford was charged with (1) assault in the second degree,
a felony under Neb. Rev. Stat. § 28-309 (Supp. 2009); (2) use
of a deadly weapon to commit a felony under Neb. Rev. Stat.
§ 28-1205 (Cum. Supp. 2014); and (3) possession of a deadly
weapon by a prohibited person under Neb. Rev. Stat. § 28-1206
(Cum. Supp. 2014).
Section 28-309(1)(a) states that a person commits the offense
of assault in the second degree if he or she intentionally or
knowingly causes bodily injury to another person with a dan-
gerous instrument. Neb. Rev. Stat. § 28-109(4) (Reissue 2008)
defines bodily injury to mean “physical pain, illness, or any
impairment of physical condition.”
Any person who uses a firearm, a knife, brass or iron
knuckles, or any other deadly weapon to commit any felony
which may be prosecuted in a court of this state commits
the offense of use of a deadly weapon to commit a felony.
§ 28-1205.
Any person who possesses a firearm or brass or iron
knuckles and who has previously been convicted of a felony
commits the offense of possession of a deadly weapon by a
prohibited person. § 28-1206.
The parties stipulated that Alford was a convicted felon.
Multiple witnesses testified that Alford assaulted Smith at the
apartment building on June 21, 2010, and this evidence was
not disputed. The primary dispute was whether Alford used
brass knuckles during the assault. Smith testified that Alford
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repeatedly punched him with brass knuckles. Smith’s testi-
mony was corroborated by Williams, who witnessed a portion
of the assault. Williams testified that she saw Alford’s hands
moments before the assault. She noted that during the assault
she saw something shiny on Alford’s hand, which had not been
there moments before.
Smith testified that he suffered a concussion, bone fractures,
a jagged cut on his lower lip, a black eye, swelling to his face,
and pain. He testified that Alford punched him a few times
and that he then saw Alford reach down and slip something
on his hand. He testified that he saw brass knuckles and that
he tried to block Alford’s punches. He said the subsequent
blows, after Alford put on the brass knuckles, felt as if they
had been amplified “times like 50.” Though Williams was
unclear whether brass knuckles were used, Smith’s testimony
and the nature and extent of Smith’s injuries, viewed and con-
strued in the light most favorable to the prosecution, is suffi-
cient to support a finding that Alford possessed and used brass
knuckles. We find that any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt and that thus, the trial court did not err in accepting the
jury’s verdicts.
[14,15] In a criminal case, a court can direct a verdict only
when there is a complete failure of evidence to establish an
essential element of the crime charged or the evidence is so
doubtful in character, lacking probative value, that a finding
of guilt based on such evidence cannot be sustained. State v.
Glazebrook, 22 Neb. Ct. App. 621, 859 N.W.2d 341 (2015). If
there is any evidence which will sustain a finding for the party
against whom a motion for directed verdict is made, the case
may not be decided as a matter of law, and a verdict may not
be directed. Id.
Having found that there was sufficient evidence to sup-
port the jury’s convictions, we find there was also sufficient
evidence for the trial court to overrule Alford’s motion for
directed verdict. Thus, the trial court did not err.
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4. Ineffective Assistance
of Counsel
[16] In order to raise the issue of ineffective assistance of
trial counsel where appellate counsel is different from trial
counsel, a defendant must raise on direct appeal any issue of
ineffective assistance of trial counsel which is known to the
defendant or is apparent from the record, or the issue will be
procedurally barred on postconviction review. State v. Morgan,
286 Neb. 556, 837 N.W.2d 543 (2013). Alford raises seven
instances of alleged ineffective assistance of counsel, which we
discuss below.
[17,18] The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean
that it can be resolved. The determining factor is whether the
record is sufficient to adequately review the question. Id. An
ineffective assistance of counsel claim will not be addressed
on direct appeal if it requires an evidentiary hearing. Id. As
discussed below, the record is not sufficient to address several
of Alford’s claims.
[19-22] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show
that counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense. State v.
Morgan, 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 criminal law in
the area. To show prejudice, the defendant must demonstrate
reasonable probability that but for counsel’s deficient per­
formance, the result of the proceeding would have been differ-
ent. The entire effectiveness analysis is viewed with a strong
presumption that counsel’s actions were reasonable and that
even if found unreasonable, the error justifies setting aside the
judgment only if there was prejudice. Deficient performance
and prejudice can be addressed in either order. Id. We now
address the claims of ineffectiveness raised by Alford.
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(a) Failure to File Motion to Quash
As previously discussed, Alford asserts that the trial court
lacked jurisdiction because there was insufficient probable
cause for a warrant and the complaint was insufficient. Alford
asserts that trial counsel’s failure to file a motion to quash
prejudiced him by “allowing the State to take him to trial on
a warrant and complaint that was not legally sufficient and
in violation of his constitutional rights.” Brief for appellant
at 29.
Alford fails to show how he was prejudiced by trial coun-
sel’s failure to file a motion to quash, alleging the complaints
were improperly verified. Even if Alford’s counsel had filed a
motion to quash the complaints, and even if the motion was
sustained, the State could have easily remedied the defects by
filing a new complaint. We find Alford was not prejudiced by
the actions of his trial counsel, and this assignment of error is
without merit. See State v. Jones, 254 Neb. 212, 575 N.W.2d
156 (1998).
(b) Assignments of Error Not
Reviewable on Direct Appeal
Alford asserts that trial counsel was deficient for failing
to request an instruction on third degree assault as a lesser-
included offense of second degree assault. He argues that if
this instruction had been given, the jury would have been pre-
sented with a “full range of possible verdicts,” and that there is
a reasonable probability the verdict would have been different.
Brief for appellant at 28.
The State asserts that this claim cannot be resolved on the
record before this court. It is possible that trial counsel did not
request an instruction for the lesser-included offense of third
degree assault for a strategic reason. Section 28-309(1)(a)
states that a person commits the offense of assault in the
second degree if he or she intentionally or knowingly causes
bodily injury to another person with a dangerous instrument.
Neb. Rev. Stat. § 28-310 (Reissue 2008) states that a person
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commits the offense of assault in the third degree if he inten-
tionally, knowingly, or recklessly causes bodily injury to
another person or threatens another in a menacing manner.
Each of the charges against Alford were based upon the
presence and use of brass knuckles. If the lesser-included
instruction was not given, and if the jury determined that brass
knuckles were not used, then the jury would have no choice but
to find Alford was not guilty of second degree assault, or any
assault in general. Upon our review, we find that this assertion
requires an evaluation of counsel’s trial strategy, for which the
record is insufficient. See State v. Brooks, 23 Neb. Ct. App. 560,
873 N.W.2d 460 (2016). Thus, we do not address the merits
of this assignment of error.
Alford also asserts his trial counsel was deficient because
counsel failed to take specific actions that Alford requested
related to his defense. Specifically, he asserts that he asked
trial counsel to (1) introduce medical records which would
show the injuries Smith sustained were not significant; (2) take
Smith’s deposition prior to trial; (3) investigate, depose, and
call as witnesses all medical personnel who treated Smith for
any injuries; (4) consult with an expert to discuss the extent of
the injuries Smith sustained; and (5) call Alford as a witness to
refute Smith’s testimony.
The record does not show whether depositions were taken
or medical records obtained, and Alford’s assertions require
an evaluation of counsel’s trial strategy, for which the record
is insufficient. We make no comment whether Alford’s alle­
gations regarding these claims would be sufficient to require
an evidentiary hearing in the context of a motion for post-
conviction relief. We simply decline to reach these claims on
direct appeal, because the record is insufficient to do so. See
State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).
5. Excessive Sentences
Alford asserts the sentences imposed were excessive,
because his convictions for the charged offenses were the
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result of “inadequate defense and bad jury instructions.” Brief
for appellant at 33. He argues that the sentences should fit the
offender and that the court abused its discretion in imposing
excessive sentences.
[23] When imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6)
motivation for the offense, as well as (7) the nature of the
offense, and (8) the amount of violence involved in the com-
mission of the crime. State v. Trice, 292 Neb. 482, 874 N.W.2d
286 (2016).
An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. Id. An abuse of discretion in imposing a sentence
occurs when a sentencing court’s reasons or rulings are clearly
untenable and unfairly deprive the litigant of a substantial
right and a just result. Id.
[24] The appropriateness of a sentence is necessarily a sub-
jective judgment and includes the sentencing judge’s observa-
tion of the defendant’s demeanor and attitude and all of the
facts and circumstances surrounding the defendant’s life. State
v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).
Alford was convicted of one Class II felony and two
Class III felonies. The possible penalty for a Class II felony
is 1 to 50 years’ imprisonment. Neb. Rev. Stat. § 28-105
(Reissue 2008). The possible penalty for a Class III felony is a
maximum of 20 years’ imprisonment, a $25,000 fine, or both.
§ 28-105. Alford was sentenced to 5 to 5 years’ imprisonment
for each conviction, to be served consecutively. The sentences
imposed were well within the statutory guidelines.
There is nothing in the record to suggest the district court
failed to consider any of the relevant factors in determining the
appropriate sentences for Alford. Witnesses testified regard-
ing the nature of the offenses and the amount of violence
involved in the commission of the crimes, including the use of
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brass knuckles. The presentence investigation report prepared
and provided to the district court included information regard-
ing Alford’s age, mentality, education and experience, and
criminal conduct, and Alford was given the opportunity to be
heard regarding the motivation for his offenses.
Having reviewed the record and the presentence investiga-
tion report, we find no evidence that the trial court abused its
discretion in imposing sentences within the statutory limits.
VII. CONCLUSION
For the reasons stated herein, we affirm the convictions and
the sentences imposed by the district court.
A ffirmed.
R iedmann, Judge, participating on briefs.