State v. Mrza , 302 Neb. 931 ( 2019 )


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    05/31/2019 08:07 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    STATE v. MRZA
    Cite as 
    302 Neb. 931
    State of Nebraska, appellee, v.
    Sami S. Mrza, appellant.
    ___ N.W.2d ___
    Filed April 19, 2019.    No. S-18-372.
    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. ____: ____. Whether a claim of ineffective assistance of trial counsel
    may be determined on direct appeal is a question of law. In reviewing
    claims of ineffective assistance of counsel on direct appeal, an appellate
    court decides only whether the undisputed facts contained within the
    record are sufficient to conclusively determine whether counsel did or
    did not provide effective assistance and whether the defendant was or
    was not prejudiced by counsel’s alleged deficient performance.
    3. Effectiveness of Counsel: Postconviction: Records: Appeal and
    Error. 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 performance which is known to the
    defendant or is apparent from the record, otherwise, the issue will be
    procedurally barred in a subsequent postconviction proceeding.
    4. 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.
    5. Effectiveness of Counsel: Proof. Generally, 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.
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    STATE v. MRZA
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    6. ____: ____. To show that counsel’s performance was deficient, a
    defend­ant must show that counsel’s performance did not equal that of a
    lawyer with ordinary training and skill in criminal law.
    7. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
    dice, the defendant must demonstrate a reasonable probability that but
    for counsel’s deficient performance, the result of the proceeding would
    have been different. A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.
    8. Trial: Effectiveness of Counsel: Presumptions: Appeal and Error. In
    determining whether trial counsel’s performance was deficient, there is
    a strong presumption that counsel acted reasonably.
    9. Rules of Evidence: Proof. A proponent of evidence is not required to
    conclusively prove the genuineness of the evidence or to rule out all
    possibilities inconsistent with authenticity.
    10. Rules of Evidence. Generally, the foundation for the admissibility of
    text messages has two components: (1) whether the text messages were
    accurately transcribed and (2) who actually sent the text messages.
    11. ____. The rule of completeness allows a party to admit the entirety of
    an act, declaration, conversation, or writing when the other party admits
    a part and when the entirety is necessary to make it fully understood.
    12. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant
    has not preserved a claim of prosecutorial misconduct for direct appeal,
    an appellate court will review the record only for plain error.
    13. Appeal and Error. An appellate court may find plain error on appeal
    when an error unasserted or uncomplained of at trial, but plainly evident
    from the record, prejudicially affects a litigant’s substantial right and,
    if uncorrected, would result in damage to the integrity, reputation, and
    fairness of the judicial process.
    14. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and
    Error. A party who fails to make a timely motion for mistrial based
    on prosecutorial misconduct waives the right to assert on appeal that
    the court erred in not declaring a mistrial due to such prosecutorial
    misconduct.
    15. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial mis-
    conduct encompasses conduct that violates legal or ethical standards for
    various contexts because the conduct will or may undermine a defend­
    ant’s right to a fair trial.
    16. Trial: Prosecuting Attorneys: Juries. 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.
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    STATE v. MRZA
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    17. ____: ____: ____. A prosecutor’s conduct that does not mislead and
    unduly influence the jury does not constitute misconduct.
    18. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial
    misconduct in closing arguments, a court first determines whether the
    prosecutor’s remarks were improper. It is then necessary to determine
    the extent to which the improper remarks had a prejudicial effect on the
    defendant’s right to a fair trial.
    19. ____: ____. Whether prosecutorial misconduct is prejudicial depends
    largely on the context of the trial as a whole.
    19. Trial: Prosecuting Attorneys: Appeal and Error. In determining
    whether a prosecutor’s improper conduct prejudiced the defendant’s
    right to a fair trial, an appellate court considers the following factors:
    (1) the degree to which the prosecutor’s conduct or remarks tended to
    mislead or unduly influence the jury; (2) whether the conduct or remarks
    were extensive or isolated; (3) whether defense counsel invited the
    remarks; (4) whether the court provided a curative instruction; and (5)
    the strength of the evidence supporting the conviction.
    21. 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.
    22. Sexual Assault: Testimony: Proof. The State is not required to cor-
    roborate a victim’s testimony in cases of first degree sexual assault;
    if believed by the finder of fact, the victim’s testimony alone is
    sufficient.
    23. 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.
    Appeal from the District Court for Lancaster County: Lori
    A. M aret, Judge. Affirmed.
    Sanford J. Pollack, of Pollack & Ball, L.L.C., for appellant.
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellee.
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    STATE v. MRZA
    Cite as 
    302 Neb. 931
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    I. INTRODUCTION
    Sami S. Mrza appeals his jury conviction and sentencing
    for first degree sexual assault. Although he assigns multiple
    errors, we focus on two issues: the authentication requirement
    for “Snapchat” evidence and the prosecutor’s comment on
    Mrza’s use of an interpreter. Because the evidence was prop-
    erly authenticated, trial counsel did not perform deficiently in
    failing to object to it. We find no plain error in the prosecutor’s
    closing argument, but determine that the record is not sufficient
    to address Mrza’s related claim of ineffective assistance of trial
    counsel. We find no error in Mrza’s other assignments, and
    because the record is insufficient, we do not reach other inef-
    fective assistance of counsel claims. Therefore, we affirm.
    II. BACKGROUND
    Mrza emigrated from Iraq to the United States in December
    2014. In the fall of 2016, Mrza met N.W., the victim, in a class
    at a community college. The conviction flowed from an event
    on November 12, 2016, which we summarize in more detail
    later in this opinion.
    The State charged Mrza with first degree sexual assault,
    pursuant to Neb. Rev. Stat. § 28-319 (Reissue 2016). Mrza pled
    not guilty. The case proceeded to a jury trial. Throughout the
    trial, Mrza utilized an interpreter. Both N.W. and Mrza testi-
    fied. The jury found Mrza guilty, and the court sentenced him
    to 8 to 15 years’ imprisonment.
    Mrza filed a timely appeal, which we moved to our docket.1
    III. ASSIGNMENTS OF ERROR
    We have reordered and restated Mrza’s numerous assign-
    ments of error, recognizing two primary issues. The first
    1
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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    assigns that because trial counsel did not object to the authen-
    ticity of “Snapchat” evidence, counsel was ineffective. The
    second assigns prosecutorial misconduct for “inflammatory
    and prejudicial statements made during closing arguments.”
    As an alternative on this second issue, Mrza assigns ineffec-
    tive assist­ance of trial counsel in failing to move for a mistrial
    based on those statements.
    His remaining assignments of error assert that the evi-
    dence was insufficient, the sentence was excessive, and trial
    counsel was ineffective in two other instances, by failing to
    move to suppress Mrza’s statements to law enforcement and
    by “fail[ing] to adequately investigate [Mrza’s] defenses and
    effectively cross-examine witnesses.”
    [1] We observe that Mrza’s last assignment lacked the speci-
    ficity we demand on direct appeal. We have held that when
    raising an ineffective assistance claim on direct appeal, an
    appellant must make specific allegations of the conduct that
    he or she claims constitutes deficient performance by trial
    counsel.2 And we have long held that 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.3 It follows that we should not have to scour the argument
    section of an appellant’s brief to extract specific allegations
    of deficient performance.4 We now hold that 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.
    Although we will not do so in the future, we have syn-
    thesized a specific assignment from the argument section of
    Mrza’s brief, which asserts that trial counsel was ineffective in
    2
    See State v. Filholm, 
    287 Neb. 763
    , 
    848 N.W.2d 571
    (2014).
    3
    See, e.g., State v. Sundquist, 
    301 Neb. 1006
    , 
    921 N.W.2d 131
    (2019).
    4
    See State v. Dill, 
    300 Neb. 344
    , 
    913 N.W.2d 470
    (2018) (declining to
    scour record in search of facts that might support claim).
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    failing to investigate the time between the assault and N.W.’s
    first interview with law enforcement for possible defenses
    by failing to (1) subpoena cell phone records of N.W. and
    the friend she called following the event, (2) investigate the
    relationship between N.W. and her friend, (3) subpoena video
    from the restaurant where N.W. and Mrza met before the event,
    and (4) subpoena Snapchat to obtain self-destructing messages
    from Mrza, N.W., and N.W.’s friend.
    IV. ANALYSIS
    1. Snapchat Authentication
    Mrza argues that his trial counsel was ineffective in fail-
    ing to object, on the ground of authenticity, to “Snapchat”
    evidence.
    (a) Additional Facts
    The night after the incident, Mrza initiated a conversation
    with N.W. via Snapchat (Snapchat is a photograph- and text-
    sharing social media application). At trial, the State ques-
    tioned N.W. about the Snapchat conversation. N.W. testified
    that Mrza was her “friend” on Snapchat. They became friends
    when they added each other’s “usernames.” She knew it was
    his account because she typed in the username that he told
    her. Later, when offering the Snapchat conversation as evi-
    dence, N.W. stated that she knew the messages were between
    herself and Mrza, because “it has his name on it.” She
    affirmed that the photographs of the conversation contained
    a fair and accurate depiction of the conversation. In the con-
    versation, N.W. directly questioned Mrza about why he did
    certain things to her after she told him to stop. He apologized
    for his actions and promised not to do it again. After the State
    offered the evidence, trial counsel did not object and the court
    admitted it.
    (b) Standard of Review
    [2] Whether a claim of ineffective assistance of trial counsel
    may be determined on direct appeal is a question of law. In
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    reviewing claims of ineffective assistance of counsel on direct
    appeal, an appellate court decides only whether the undisputed
    facts contained within the record are sufficient to conclusively
    determine whether counsel did or did not provide effective
    assistance and whether the defendant was or was not preju-
    diced by counsel’s alleged deficient performance.5
    (c) General Principles Regarding Ineffective
    Assistance of Counsel
    [3,4] 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 per­     formance
    which is known to the defendant or is apparent from the record,
    otherwise, the issue will be procedurally barred in a subse-
    quent postconviction proceeding.6 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 fac-
    tor is whether the record is sufficient to adequately review the
    question.7 Regarding the Snapchat evidence, we conclude that
    the record is sufficient to address Mrza’s claim.
    [5-8] Generally, to prevail on a claim of ineffective assist­
    ance of counsel under Strickland v. Washington,8 the defend­
    ant must show that his or her counsel’s performance was
    deficient and that this deficient performance actually preju-
    diced the defendant’s defense.9 To show that counsel’s per-
    formance was deficient, a defendant must show that counsel’s
    per­formance did not equal that of a lawyer with ordinary
    training and skill in criminal law.10 To show prejudice, the
    5
    State v. Smith, ante p. 154, 
    922 N.W.2d 444
    (2019).
    6
    
    Id. 7 Id.
     8
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
         (1984).
    9
    State v. Avina-Murillo, 
    301 Neb. 185
    , 
    917 N.W.2d 865
    (2018).
    10
    
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    defend­ant must demonstrate a reasonable probability that but
    for counsel’s deficient performance, the result of the proceed-
    ing would have been different. A reasonable probability is
    a probability sufficient to undermine confidence in the out-
    come.11 In determining whether trial counsel’s performance
    was deficient, there is a strong presumption that counsel
    acted reasonably.12
    (d) Analysis
    The parties disagree as to which standard should be applied
    to the authentication of the Snapchat messages. The State
    contends that authentication “is satisfied by evidence suf-
    ficient to support a finding that the matter in question is
    what its proponent claims.”13 Mrza argues instead that the
    text message standard of authentication should be applied.
    Specifically, he argues that because Mrza testified that there
    were more messages to the conversation, the State failed to
    show that the messages were an accurate transcription of
    the conversation.
    [9] The State’s formulation is a correct statement of the
    evidence rule governing authenticity.14 This rule does not
    impose a high hurdle for authentication or identification.15 A
    proponent of evidence is not required to conclusively prove
    the genuineness of the evidence or to rule out all possibilities
    inconsistent with authenticity.16
    [10] Even if Mrza were correct that the text message authen-
    tication standard governs messages sent over social media
    applications, his claim would fail. Generally, the foundation
    for the admissibility of text messages has two components:
    11
    
    Id. 12 State
    v. McGuire, 
    299 Neb. 762
    , 
    910 N.W.2d 144
    (2018).
    13
    See Neb. Evid. R. 901(1), Neb. Rev. Stat. § 27-901(1) (Reissue 2016).
    14
    See State v. Savage, 
    301 Neb. 873
    , 
    920 N.W.2d 692
    (2018).
    15
    
    Id. 16 Id.
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    (1) whether the text messages were accurately transcribed
    and (2) who actually sent the text messages.17 Mrza does
    not challenge the second prong of this test, but argues only
    that the State failed to prove that the messages were accu-
    rately transcribed. In that regard, he conflates accuracy with
    completeness.
    [11] Contrary to Mrza’s argument, the existence of other
    messages does not undermine the accuracy of the messages
    that were offered. Mrza does not argue that the exhibit received
    in evidence was not accurate as far as it went. Instead, he
    argues that there were other messages not included in the
    exhibit. Essentially, his argument attempts to invoke the rule
    of completeness18 under the rubric of authenticity. The rule
    of completeness allows a party to admit the entirety of an
    act, declaration, conversation, or writing when the other party
    admits a part and when the entirety is necessary to make it
    fully understood.19 The rule of authentication did not require
    the State to offer all of the Snapchat messages in evidence.
    Where there is nothing to suggest that the other messages were
    relevant or the evidence entered was misleading or prejudicial,
    the State was not required to enter the entirety of the conversa-
    tion into evidence.20
    If Mrza believed that other messages were necessary to
    make the conversation fully understood, it was his obligation
    to offer them. But this was not a matter of authentication.
    Because N.W. testified to the accuracy of the Snapchat mes-
    sages between herself and Mrza, it was sufficient to show
    that the messages were accurately transcribed and properly
    authenticated. Therefore, Mrza’s trial counsel did not per-
    form deficiently in failing to assert an objection based on
    authentication.
    17
    
    Id. 18 See
    Neb. Evid. R. 106, Neb. Rev. Stat. § 27-106 (Reissue 2016).
    19
    Id.; Savage, supra note 14.
    20
    See Savage, supra note 14.
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    2. Prosecutorial Misconduct
    Mrza argues that the prosecutor’s closing argument discuss-
    ing Mrza’s use of an interpreter was prejudicial misconduct.
    Mrza also asserts that to the extent his claim of prosecutorial
    misconduct was not preserved, his trial counsel was ineffec-
    tive in failing to move for a mistrial.
    (a) Additional Facts
    In discussing his assignment of ineffectiveness of counsel
    in failing to move to suppress Mrza’s statements, his appellate
    brief acknowledges that his “ability to speak and understand
    the English language” was the subject of extensive testimony
    “[t]hroughout the case.”21 His brief recites that there was
    concern at a pretrial hearing whether he had “understood his
    waiver of a preliminary hearing,” because he had not been pro-
    vided an interpreter in the county court.22 His brief argues that
    he had an “imperfect grasp” of the English language.23
    At trial, the parties addressed Mrza’s English language
    proficiency. In the State’s opening statement, it foreshadowed
    evidence about Mrza’s college courses taught in English and
    how he communicated with N.W. only in English. In Mrza’s
    opening statement, he responded by outlining Mrza’s testimony
    about reading his textbooks numerous times when studying and
    that he did well in his classes.
    This continued when evidence was presented. During N.W.’s
    direct examination, she stated that her classes were taught in
    English, she communicated with Mrza in English, he under-
    stood her when she spoke in English, she understood his
    English, and his class notes were in English.
    The police sergeant who investigated the case stated that
    he interviewed Mrza in English and that Mrza appeared to
    understand English. The investigator testified that Mrza never
    21
    See brief for appellant at 32.
    22
    
    Id. 23 Id.
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    indicated he did not understand English and that he did not
    read Mrza his Miranda rights until he determined that Mrza
    understood English. Both a video and audio recording and a
    typed transcript of the investigator’s interview of Mrza were
    received in evidence and displayed to the jury.
    On direct examination, Mrza stated that he studied English
    for 3 years at a university in Kurdistan; that his current
    textbooks were in English, which he read them two or three
    times to understand; and that he did not feel that he under-
    stood English well enough to understand his trial. On cross-­
    examination, Mrza stated he switched from the English “yes”
    to the Kurdish “yes” because he was “saying almost every-
    thing in Kurdish” already; he took four English classes at a
    community college in Lincoln, Nebraska; all his classes were
    taught in English; during class, he rarely used the translation
    application on his cell phone; and he had a “3-plus” grade
    point average.
    Mrza’s prosecutorial misconduct argument focuses on the
    State’s closing argument, when the prosecutor argued, “But
    I’d submit to you, ladies and gentlemen, this interpreter thing
    that we’ve got going on here is a charade. And it’s done to
    try to garnish some type of sympathy from you guys.” The
    prosecutor then commented on Mrza’s ability to understand
    English. This comment cited Mrza’s academic record and how
    he took all his classes in English and received high grades.
    The prosecutor recalled Mrza’s use of English slang in the
    Snapchat conversation and argued that someone who does not
    understand English could not text in slang. This argument also
    called attention to Mrza’s trial testimony in which he answered
    the first half of the direct examination with the English “yes,”
    but after lunch switched to the Kurdish equivalent. Mrza’s trial
    counsel did not object or move for a mistrial.
    In Mrza’s closing argument, his trial counsel responded by
    arguing that although Mrza understands English, when inter-
    viewed by law enforcement, he used “clunky” English and was
    difficult to understand in the video. Trial counsel rhetorically
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    questioned who, “in today’s political climate,” would try to
    garner sympathy by claiming to be a refugee. In the State’s
    rebuttal closing argument, it briefly responded by arguing that
    Mrza’s inconsistent statements to law enforcement were not
    from a lack of understanding English, but because he was dis-
    tracted and thinking about what he did.
    In instruction No. 10, the court told the jury that there was
    evidence that Mrza had made a statement to a law enforcement
    officer and that it could rely on the statement only if it decided
    beyond a reasonable doubt that he made the statement, he
    understood what he was saying, and the statement was freely
    and voluntarily made under all of the circumstances surround-
    ing its making. Otherwise, the court instructed, the jury must
    disregard Mrza’s statement even if it thought it was true.
    (b) Standard of Review
    [12,13] When a defendant has not preserved a claim of
    prosecutorial misconduct for direct appeal, we will review the
    record only for plain error.24 An appellate court may find plain
    error on appeal when an error unasserted or uncomplained
    of at trial, but plainly evident from the record, prejudicially
    affects a litigant’s substantial right and, if uncorrected, would
    result in damage to the integrity, reputation, and fairness of
    the judicial process.25 Generally, we will find plain error only
    when a miscarriage of justice would otherwise occur.26
    (c) Analysis
    Mrza argues that the prosecutor committed misconduct
    in his closing argument when he argued that Mrza’s use of
    an interpreter at trial was a charade used to garner sympa-
    thy from the jury. Mrza contends that the statements were
    improper, because there was no issue at trial regarding his
    24
    State v. Custer, 
    292 Neb. 88
    , 
    871 N.W.2d 243
    (2015).
    25
    
    Id. 26 Id.
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    proficiency in English. Mrza contends that the statements
    were the expressions of the prosecutor’s personal beliefs and
    were designed to inflame the prejudices of the jurors. In addi-
    tion to arguing that the prosecutor’s closing argument com-
    ments were plain error, Mrza argues that counsel was ineffec-
    tive for failing to object and request a mistrial. We address
    this issue with Mrza’s remaining ineffective assistance of
    counsel assignments below.
    [14] The State responds that Mrza failed to preserve the pur-
    ported misconduct. The State is correct. A party who fails to
    make a timely motion for mistrial based on prosecutorial mis-
    conduct waives the right to assert on appeal that the court erred
    in not declaring a mistrial due to such prosecutorial miscon-
    duct.27 Because Mrza did not move for a mistrial, the alleged
    error was waived. Accordingly, our direct review of this issue
    is confined to a search for plain error.
    [15-18] Prosecutorial misconduct encompasses conduct that
    violates legal or ethical standards for various contexts because
    the conduct will or may undermine a defendant’s right to a
    fair trial.28 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.29 A prosecutor’s conduct that does not mislead and
    unduly influence the jury does not constitute misconduct.30 In
    assessing allegations of prosecutorial misconduct in closing
    arguments, a court first determines whether the prosecutor’s
    remarks were improper. It is then necessary to determine the
    extent to which the improper remarks had a prejudicial effect
    on the defendant’s right to a fair trial.31
    27
    
    Id. 28 Id.
    29
    
    Id. 30 Id.
    31
    
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    Nebraska courts have not discussed the propriety of a pros-
    ecutor’s comments on the use of or need for an interpreter.
    We turn to the decisions of federal and other state courts
    for guidance.
    In Andrade v. U.S.,32 the District of Columbia Court of
    Appeals assessed a similar situation and determined that the
    conduct did not rise to the level of plain error. There, the
    appellate court concluded that the prosecutor had arguably
    transcended the bounds of permissible comment by mak-
    ing comments during cross-examination about the defend­
    ant’s use of an interpreter and then using these parts of
    the cross-­examination during closing argument to express an
    opinion about the defendant’s veracity. In the prosecutor’s
    cross-examination, she commented on the defendant’s use
    of an interpreter by telling him, “‘you are not going to hide
    behind translation.’”33 During closing argument, the prosecutor
    recounted the defendant’s testimony during cross-examination
    denying that his attorney had told him what to say, and then
    she commented, “‘And then he tries to hide behind the inter-
    pretation, maybe, maybe she doesn’t translate for you. My
    questions were simple and they were direct and Spanish is not
    a very complicated language.’”34 In determining that there was
    no plain error requiring reversal, the appellate court relied on
    the trial court’s curative steps in ensuring proper interpretation
    and use of an interpreter.
    In Diaz v. U.S.,35 the District of Columbia Court of Appeals
    discussed a prosecutor’s comments during a “relatively long
    rebuttal”36 argument regarding a defendant’s use of an inter-
    preter. According to the appellate court, the prosecutor had
    “ignored the factual record, implying that [the defendant]
    32
    Andrade v. U.S., 
    88 A.3d 134
    (D.C. 2014).
    33
    
    Id. at 140.
    34
    
    Id. at 141.
    35
    Diaz v. U.S., 
    716 A.2d 173
    (D.C. 1998).
    36
    
    Id. at 180.
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    lied when he said he didn’t understand what [the alleged
    victim] said to him in English even though he had ‘corrected
    [the interpreter’s] English translation of what he had said.’”37
    Because the comments expressed personal opinion on the
    veracity and credibility of witnesses, the court concluded the
    comments, as a whole, were improper. In assessing the preju-
    dicial value of the comments, the court did find that the cor-
    rective instructions by the court, instructing the jury about the
    role of the interpreter and that arguments by counsel are not
    evidence, ameliorated any harm from the statements. Other
    factors showed that the comments did not mislead the jury, the
    case turned on the credibility of witnesses, and there was suf-
    ficient evidence without the comments to believe the victim.
    The appellate court held that the defendant was not prejudiced
    by improper comments.
    In U.S. v. Ganadonegro,38 the U.S. Court of Appeals for the
    10th Circuit assessed whether questions asked and objected to
    on cross-examination about the use of an interpreter amounted
    to prosecutorial misconduct. In opening statements, defense
    counsel discussed how the interpretation of “‘shaking’” from
    English to Navajo would be the crux of the trial.39 When the
    FBI interviewed the defendant, he had an interpreter present.
    An expert testified to the defendant’s competency in English
    and how he may have responded appropriately, even if he
    did not fully understand what was being said. During cross-­
    examination of the defendant, the prosecutor extensively
    questioned him about his use of an interpreter, which drew
    several objections from defense counsel. The prosecutor drew
    a concession when the defendant admitted that he used the
    interpreter once in his first trial. The court concluded that the
    prosecutor’s conduct was not improper, because the defend­
    ant’s defense relied heavily on his language proficiency.
    37
    
    Id. 38 U.S.
    v. Ganadonegro, 560 Fed. Appx. 716 (10th Cir. 2014).
    39
    
    Id. at 718.
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    Therefore, the prosecution was entitled to pursue the theory
    of the defense.
    In State v. Heredia,40 the defendant challenged comments
    made by the prosecutor during cross-examination and closing
    argument about his use of an interpreter not under the Due
    Process Clause, but under the 5th, 6th, and 14th Amendments
    to the U.S. Constitution. During cross-examination, the pros-
    ecutor asked, “‘You say that you don’t speak English that
    well?’”; “‘You were able to get a social security card, right,
    this one in your wallet?’”; and “‘Are you given any kind of
    a test when you come to court to decide whether or not you
    need an interpreter?’”41 During closing argument, the pros-
    ecutor made the following statement: “‘And I’d ask you not
    to be persuaded by his demeanor when he’s on the stand,
    when he leans over and looks, kind of sits down, slouched
    over, looks up at the interpreter and says, “como, como,” like
    he doesn’t know what’s going on.’”42 The Supreme Court
    of Connecticut reasoned that the comments at issue did not
    burden the defendant’s right to an interpreter, but focused on
    the conflict between his demeanor on the stand and the dan-
    gerous assailant described by the State’s witnesses. The court
    concluded that there was no violation of the defendant’s con-
    stitutional rights.
    We have explained that “a distinction exists between argu-
    ing that a defense strategy is intended to distract jurors from
    what the evidence shows, which is not misconduct, and argu-
    ing that a defense counsel is deceitful, which is misconduct.”43
    Similarly, we distinguish between the prosecutor’s statements
    directing the jury toward evidence of the defendant’s profi-
    ciency in English relevant to an issue, which is not misconduct,
    and a comment which could be construed as attacking the
    40
    State v. Heredia, 
    253 Conn. 543
    , 
    754 A.2d 114
    (2000).
    41
    
    Id. at 551,
    754 A.2d at 120.
    42
    
    Id. 43 State
    v. Dubray, 
    289 Neb. 208
    , 227, 
    854 N.W.2d 584
    , 605 (2014).
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    defendant as being deceitful or manipulative in his need for an
    interpreter in court proceedings.
    This does not mean that, in any case in which the
    defendant avails himself of the services of an interpreter,
    the state would be free to focus on that fact in a man-
    ner that was irrelevant to the issues in the case, or in a
    manner that unduly casts doubt on the necessity of those
    services.44
    We have held that a defendant’s inability to comprehend crimi-
    nal proceedings or communicate in English at such proceedings
    can result in a violation of the defendant’s due process and
    Sixth Amendment rights.45 Prosecutors should carefully con-
    sider this distinction in commenting on language proficiency.
    We agree with Mrza that the prosecutor’s “charade . . . to
    garnish . . . sympathy” comment, viewed in isolation, did not
    refer to any issue at trial. A prosecutor must base his or her
    argument on the evidence introduced at trial rather than on
    matters not in evidence.46 But Mrza’s understanding of the
    statements that he made to law enforcement officers was at
    issue. The remainder of the argument, addressing facts perti-
    nent to that understanding, was not improper. Thus, viewing
    the matter through the prism for plain error, we must assess the
    extent of prejudice associated with this isolated statement.
    [19,20] Whether prosecutorial misconduct is prejudicial
    depends largely on the context of the trial as a whole.47 In deter-
    mining whether a prosecutor’s improper conduct prejudiced the
    defendant’s right to a fair trial, an appellate court considers
    the following factors: (1) the degree to which the prosecutor’s
    conduct or remarks tended to mislead or unduly influence
    the jury; (2) whether the conduct or remarks were extensive
    or isolated; (3) whether defense counsel invited the remarks;
    44
    Heredia, supra note 
    40, 253 Conn. at 560
    , 754 A.2d at 125.
    45
    State v. Alarcon-Chavez, 
    295 Neb. 1014
    , 
    893 N.W.2d 706
    (2017).
    46
    State v. McSwine, 
    292 Neb. 565
    , 
    873 N.W.2d 405
    (2016).
    47
    
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    (4) whether the court provided a curative instruction; and (5)
    the strength of the evidence supporting the conviction.48
    First, we turn to the degree to which the prosecutor’s con-
    duct or remarks tended to mislead or unduly influence the
    jury. Viewed in isolation, that comment could be viewed as
    an attempt to unduly influence the jury. Regarding Mrza’s
    interaction with N.W., his defense was not predicated on a
    lack of English proficiency. But his linguistic proficiency did
    bear on the voluntariness of his statements to law enforce-
    ment officers.
    Second, we turn to whether the conduct or remarks were
    extensive or isolated. As we have observed, the “charade . . .
    to garnish . . . sympathy” comment was isolated. It was brief,
    particularly in the context of the 60-minute closing argument.
    During rebuttal argument, the State briefly discussed Mrza’s
    comprehension but only in the context of whether he under-
    stood English when interviewed by law enforcement.
    Third, we turn to whether defense counsel invited the
    remarks. Here, we focus specifically on the “charade . . . to
    garnish . . . sympathy” comment. We cannot say that defense
    counsel invited this particular comment; to the contrary, it
    seemed to have been a longstanding concern of the prosecutor.
    Fourth, we look to whether the court gave any curative
    instruction. Mrza did not object to the comments and, accord-
    ingly, did not request a curative instruction or a mistrial. The
    court instructed the jury that comments of attorneys are not
    evidence and that their decision must be based solely on the
    evidence. Moreover, instruction No. 10 instructed the jury that
    in assessing the voluntariness of Mrza’s statements, it must
    consider whether Mrza understood what he said.
    Finally, we turn to the strength of the evidence supporting
    Mrza’s conviction. The evidence ultimately presented a classic
    “she said, he said” situation. In that situation, Mrza’s state-
    ments to law enforcement officers were important to the State’s
    48
    
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    case. Thus, his understanding of those statements was essen-
    tial to the jury’s reliance on his statements. But because the
    strength of the State’s case highly depended upon a comparison
    of Mrza’s credibility to that of N.W., even an isolated comment
    had the potential for unfair prejudice.
    After considering the above factors in the context of a
    review for plain error, we conclude that the isolated comment
    did not clearly demonstrate prejudice. Therefore, we do not
    find plain error in the prosecutor’s closing argument.
    3. Sufficiency of Evidence
    Mrza argues that the evidence was insufficient to support
    his conviction. We disagree.
    (a) Additional Facts
    We recite these facts in the light most favorable to the State.
    On the evening of November 12, 2016, N.W. sent a message
    via Snapchat asking Mrza to go to dinner with her. They met
    at 11:30 p.m. at a restaurant on North 27th Street in Lincoln.
    Around 1 a.m., they finished their meals, but N.W. did not
    want to go home and suggested that they “cruise O Street.”
    Mrza agreed and offered to drive.
    Upon entering Mrza’s vehicle, Mrza hugged N.W. with both
    hands on her mid-back. Mrza began kissing her neck. Mrza
    pulled down the collar of N.W.’s T-shirt to expose her breast
    and began kissing her breast. Mrza asked if she liked it, and
    she responded, “‘Yes.’” Mrza began rubbing her vagina on the
    outside of her pants. Again, he asked if it felt good and she
    said, “‘Yes.’”
    Mrza moved his hand underneath her pants. She stated that
    she “wasn’t okay with that” and told him, “‘Stop. I don’t want
    to do this.’” Mrza digitally penetrated N.W. N.W. stated that
    Mrza was “getting frustrated” with her and was forcefully put-
    ting his fingers in and out of her vagina. Mrza removed his
    fingers and aggressively kissed her on the mouth.
    Mrza unbuttoned his pants and “pulled out his penis.” Mrza
    grabbed the back of N.W.’s head, pulled it down to his penis,
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    and inserted his penis in her mouth. He forced her head up and
    down on his penis. N.W. turned her head and told him, “‘Stop.
    I don’t want to do this.’” N.W. pulled her head away.
    Mrza tried to digitally penetrate N.W.’s vagina again, but
    she stopped him. He then pulled her pants down to her mid-
    thigh and attempted to perform oral sex on her. She remem-
    bered telling him multiple times to stop and that she did not
    want to do this.
    N.W. attempted to open the vehicle door, and Mrza grabbed
    her shoulder, pulled her into the car, and shut and locked the
    doors. N.W. recalled that Mrza told her to get in the back seat
    and that “he wanted to fuck me.” She unlocked the door and
    ran to her car.
    A few hours later, N.W. met a friend to tell him about the
    incident and he called the police. A police officer responded
    to the call and briefly interviewed N.W. before advising her
    to go to the hospital for an examination. N.W. went to a hos-
    pital with her mother for a sexual assault nurse examination.
    At the hospital, N.W. gave a detailed statement of the events
    to the examining nurse and a police sergeant. These state-
    ments are nearly identical to the events to which she testified
    to at trial.
    (b) Standard of Review
    [21] 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
    beyond a reasonable doubt.49
    49
    Smith, supra note 5.
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    (c) Analysis
    Mrza argues that although Neb. Rev. Stat. § 29-2028
    (Reissue 2016) states, “The testimony of a person who is a
    victim of a sexual assault . . . shall not require corroboration,”
    in this case, the victim’s statement lacked corroboration and
    therefore was insufficient to find Mrza guilty. Mrza contends
    that N.W.’s inconsistent statements to the police officer, the
    nurse, and the police sergeant about when she did and did not
    consent made her testimony not credible and did not provide
    sufficient evidence for the jury to find Mrza guilty beyond a
    reasonable doubt.
    [22] The State was not required to corroborate N.W.’s
    testimony. Since 1989, the State has not been required to
    corroborate a victim’s testimony in cases of first degree
    sexual assault; if believed by the finder of fact, the victim’s
    testimony alone is sufficient.50 Therefore, if the jury believed
    N.W., her testimony alone was sufficient. After viewing the
    facts in the light most favorable to the prosecution and with-
    out passing on the credibility of witnesses, there was suffi-
    cient evidence for any rational trier of fact to find Mrza guilty
    beyond a reasonable doubt.
    4. Excessive Sentence
    Mrza argues that the district court imposed an excessive
    sentence.
    (a) Standard of Review
    [23] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.51
    (b) Analysis
    Mrza argues that the district court abused its discretion by
    imposing an excessive sentence of 8 to 15 years’ imprisonment,
    50
    See State v. Davis, 
    277 Neb. 161
    , 
    762 N.W.2d 287
    (2009).
    51
    
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    rather than a probationary sentence. Mrza contends that his
    crime did not cause or threaten serious harm, he had no prior
    criminal or delinquent history, he has a close and positive fam-
    ily support system, and he was engaged in supporting his local
    ethnic community. He does not dispute that the sentence was
    within the statutory limits.
    We have recited the principles of law governing such claims
    so many times that we see no point in doing so again here.52
    Simply put, there was no abuse of discretion in the sentence
    imposed by the district court.
    5. R emaining Ineffective Assistance
    of Counsel Claims
    We have already disposed of Mrza’s assignment of inef-
    fective assistance of trial counsel regarding the Snapchat evi-
    dence. Three claims remain: the failure to move for a mistrial
    during the prosecutor’s closing argument and the two claims
    set forth in the second paragraph of the assignments of error
    section (the latter of those two having been synthesized in the
    fourth paragraph of that section). We have already recited the
    standard of review and basic principles of law applicable to
    such claims.
    We recognize his ineffectiveness assignment regarding the
    prosecutor’s closing argument referred by paragraph number
    to the assignment of excessive sentence. But Mrza’s argument
    in his brief made clear that he meant to refer to the prosecu-
    torial misconduct assignment, and it is equally clear that the
    mistaken numerical reference was an inadvertent typographi-
    cal error.
    Mrza asserts that his trial counsel was ineffective when he
    failed to move for a mistrial following inflammatory state-
    ments made by the prosecutor during closing argument. We
    agree that Mrza has sufficiently described the deficiency in
    52
    See 
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    counsel’s conduct and that the record does show that no such
    motion was made.
    But this is not one of the rare instances where a reversal on
    direct appeal is appropriate.53 Although Mrza has accurately
    described what was not done, the record does not show why
    trial counsel did not move for a mistrial. And we recall that in
    determining whether trial counsel’s performance was deficient,
    there is a strong presumption that counsel acted reasonably.
    Because the undisputed facts in the record cannot conclusively
    determine whether counsel did or did not provide effective
    assistance and whether Mrza was prejudiced by the alleged
    deficient performance,54 the record is not sufficient to address
    the claim on direct review.
    In response to Mrza’s remaining claims of ineffective assist­
    ance of trial counsel, the State responds that the record is not
    sufficient to address them. We agree.
    V. CONCLUSION
    We conclude that there is no merit to the assignments of
    error we can reach on direct appeal. Accordingly, we affirm
    Mrza’s conviction and sentence.
    A ffirmed.
    53
    See, State v. Rocha, 
    286 Neb. 256
    , 
    836 N.W.2d 774
    (2013); State v. Faust,
    
    265 Neb. 845
    , 
    660 N.W.2d 844
    (2003), overruled on other grounds, State
    v. McCulloch, 
    274 Neb. 636
    , 
    742 N.W.2d 727
    (2007).
    54
    See Smith, supra note 5.