State v. Price , 306 Neb. 38 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/28/2020 01:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. PRICE
    Cite as 
    306 Neb. 38
    State of Nebraska, appellee, v.
    James S. Price, appellant.
    ___ N.W.2d ___
    Filed June 5, 2020.     No. S-19-192.
    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. 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.
    3. Appeal and Error. An appellate court may find plain error on appeal
    when an error unasserted or uncomplained of at trial, but plainly evi-
    dent from the record, prejudicially affects a litigant’s substantial right
    and, if uncorrected, would result in damage to the integrity, reputa-
    tion, and fairness of the judicial process. Generally, an appellate court
    will find plain error only when a miscarriage of justice would other-
    wise occur.
    4. Motions for New Trial: Appeal and Error. The standard of review for
    the denial of a motion for new trial is whether the trial court abused its
    discretion in denying the motion.
    5. 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 ver-
    dict, 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 favorably to the State, is sufficient to support
    the conviction.
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. PRICE
    Cite as 
    306 Neb. 38
    6. 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.
    7. Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    8. Appeal and Error. Under the law-of-the-case doctrine, the holdings of
    an appellate court on questions presented to it in reviewing proceedings
    of the trial court become the law of the case; those holdings conclu-
    sively settle, for purposes of that litigation, all matters ruled upon, either
    expressly or by necessary implication.
    9. Actions: Appeal and Error. The law-of-the-case doctrine operates
    to preclude a reconsideration of substantially similar, if not identical,
    issues at successive stages of the same suit or prosecution.
    10. ____: ____. On appeal, the law-of-the-case doctrine is a rule of prac-
    tice that operates to direct an appellate court’s discretion, not to limit
    its power.
    11. ____: ____. The law-of-the-case doctrine does not apply if consider-
    ations of substantial justice suggest a reexamination of the issue is war-
    ranted. But matters previously addressed in an appellate court are not
    reconsidered unless the petitioner presents materially and substantially
    different facts.
    12. 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.
    13. 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
    defend­ant’s right to a fair trial.
    14. 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.
    15. ____: ____: ____. A prosecutor’s conduct that does not mislead and
    unduly influence the jury does not constitute misconduct.
    16. 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.
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. PRICE
    Cite as 
    306 Neb. 38
    17. Criminal Law: Evidence: Appeal and Error. When a criminal defend­
    ant 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.
    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.
    Appeal from the District Court for Lancaster County:
    Andrew R. Jacobsen, Judge. Affirmed.
    Matthew K. Kosmicki for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    James S. Price appeals his convictions and sentences in the
    district court for Lancaster County for aiding and abetting rob-
    bery and for aiding and abetting first degree assault. Price was
    convicted in his second jury trial after his first trial ended in a
    deadlocked jury and the court declared a mistrial.
    Price claims on appeal that the court erred in the first trial
    when it failed to inquire of the jury whether it was deadlocked
    on each count and when it overruled the plea in bar he filed
    after the declaration of a mistrial and before the second trial.
    We note with regard to these two claims that Price unsuc-
    cessfully appealed to the Nebraska Court of Appeals, which
    rejected his assignments of error regarding polling of jurors
    and overruling the plea in bar. State v. Price, No. A-17-565,
    
    2018 WL 718501
    (Neb. App. Feb. 6, 2018) (petition for further
    review denied).
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. PRICE
    Cite as 
    306 Neb. 38
    Price further claims on appeal that in the second trial, (1) the
    State committed prosecutorial misconduct by making improper
    statements during closing argument, (2) the court abused its
    discretion when it denied his motion for a new trial, (3) coun-
    sel was ineffective, (4) there was not sufficient evidence to
    support his convictions, and (5) the court imposed excessive
    sentences. We affirm Price’s convictions and sentences.
    STATEMENT OF FACTS
    First Trial, Declaration of
    Mistrial, and Plea in Bar.
    Price was charged with aiding and abetting robbery and
    aiding and abetting first degree assault based on an incident
    that occurred in the early hours of October 3, 2014, in which
    two men were robbed and assaulted by two other men. Price
    was first tried on the charges in December 2016. The case was
    submitted to the jury at around 11 a.m. on December 9, and
    deliberations continued on December 12. The following facts
    come from the Court of Appeals’ memorandum opinion in an
    earlier appeal in this case:
    [T]he jury, during its deliberations, sent a note to the
    judge on December 12, 2016, stating, “We are having dif-
    ficulty with a unanimous decision. What else can we do?”
    The judge conferred with counsel for both sides, and upon
    agreement of the parties, an instruction was given to the
    jury urging them to review the court’s prior instructions,
    reconsider the evidence, and to continue their discussions
    in order to reach a verdict; but to let the court know if a
    unanimous decision ultimately could not be reached.
    After the jury continued to deliberate for approxi-
    mately another couple of hours, it sent another note to the
    court stating, “We have reviewed the judge’s instructions
    numerous times. We have carefully reviewed the evidence
    multiple times. We have taken multiple votes and are still
    deadlocked.” The following line of questioning then took
    place in open court between the court, the presiding juror,
    and both attorneys (with Price present):
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. PRICE
    Cite as 
    306 Neb. 38
    “THE COURT: [Presiding juror], do you think any
    further deliberations would result in a verdict in this case?
    “PRESIDING JUROR: It doesn’t appear so.
    “THE COURT: Okay. Well, let me ask you this. Do
    you think the jury is hopelessly deadlocked?
    “PRESIDING JUROR: Yes. I —
    “THE COURT: I’m sorry?
    “PRESIDING JUROR: Yeah. I — yeah.
    “THE COURT: Okay. All right.
    “Any comments, [counsel for the State]?
    “[Counsel for the State]: No.
    “THE COURT: Any comments, [counsel for Price]?
    “[Counsel for Price]: Would the Court entertain polling
    the jury panel as to that issue?
    “THE COURT: I’m not going to poll the jury as to that
    issue. I think if the foreperson says they are deadlocked, I
    will take his word for it.”
    Price’s counsel then objected to a mistrial in a side-bar
    with the court and counsel for the State, and asked for
    another instruction to the jury to keep deliberating. The
    court overruled the objection and declared a mistrial, not-
    ing the jury had been deliberating for over 8 hours. The
    court indicated the case would be set for further proceed-
    ings and trial would be scheduled in the next trial term
    commencing in February 2017.
    Price filed a plea in bar on January 23, 2017, assert-
    ing that “[t]rying [Price] a second time would violate
    the right to be free from Double Jeopardy, Due Process,
    and to a Fair Trial, all as secured by the United States
    and Nebraska constitutions.” The district court entered
    an order on May 18, finding that “the jury’s statement
    that it was unable to reach a verdict amounts to ‘mani-
    fest necessity’ and [Price’s] Plea In Bar is, therefore,
    overruled.”
    State v. Price, No. A-17-565, 
    2018 WL 718501
    at *1 (Neb.
    App. Feb. 6, 2018).
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. PRICE
    Cite as 
    306 Neb. 38
    Price’s Appeal of Denial
    of Plea in Bar.
    Price appealed the district court’s denial of his plea in bar
    to the Court of Appeals. He claimed that the court erred when
    it (1) refused his request to poll the jury individually when it
    indicated it was deadlocked and (2) overruled his plea in bar.
    The Court of Appeals rejected both assignments of error and
    affirmed the district court’s order overruling Price’s plea in bar.
    State v. 
    Price, supra
    .
    Regarding Price’s claim that the court erred when it denied
    his request to poll the jury, the Court of Appeals determined
    that it lacked jurisdiction to consider an error arising from
    Price’s trial because there had not yet been a final order or
    judgment in the trial and the only final, appealable order it had
    jurisdiction to review was the order overruling Price’s plea in
    bar. The Court of Appeals determined, however, that the jury
    polling issue could be addressed in the context of the denial of
    Price’s plea in bar.
    Regarding the denial of the plea in bar, the Court of Appeals
    cited the proposition that where a mistrial is declared over
    a defendant’s objection, he or she may be retried only if the
    prosecution can demonstrate a manifest necessity for the mis-
    trial. Therefore, a second trial was allowed and the plea in bar
    was properly denied if there was a manifest necessity for the
    mistrial. The Court of Appeals rejected Price’s arguments that
    the trial court had abused its discretion when it granted the
    mistrial, and it agreed with the district court’s determination
    that the jury’s statement that it was unable to reach a verdict
    amounted to a manifest necessity.
    As part of this analysis, the Court of Appeals considered
    Price’s argument that he was entitled to poll the jury indi-
    vidually regarding whether the jury was deadlocked rather
    than relying on the assertion of the presiding juror. The
    Court of Appeals stated that the statutory right to poll jurors
    under Neb. Rev. Stat. § 29-2024 (Reissue 2016) was lim-
    ited to polling jurors regarding a verdict reached by the jury
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. PRICE
    Cite as 
    306 Neb. 38
    and did not apply when a verdict had not been reached. The
    Court of Appeals also distinguished State v. Combs, 
    297 Neb. 422
    , 
    900 N.W.2d 473
    (2017), in which the defendant
    learned after a mistrial was declared that the jury had voted
    to acquit him on three of four charges but had reported that
    it was deadlocked because it thought it had to be unanimous
    as to all four counts. We concluded in Combs that because
    the defendant had sought the mistrial, he could not chal-
    lenge the district court’s failure to inquire whether the jury
    was deadlocked as to all counts; however, we stated that “the
    better practice would have been for the district court to have
    inquired of the jury whether it was deadlocked on every count
    before it granted a 
    mistrial.” 297 Neb. at 430
    , 900 N.W.2d
    at 481.
    The Court of Appeals in this case determined that Combs
    did not create a new right to poll the jury individually before
    declaring a mistrial. The Court of Appeals also noted that
    there were “no facts in the record that call into question the
    jury being deadlocked as to all counts in the present case,
    as was the case in Combs.” State v. Price, No. A-17-565,
    
    2018 WL 718501
    at *5 (Neb. App. Feb. 6, 2018). The Court
    of Appeals further noted that when Price requested to poll
    the jury, he did not raise an issue of whether the jury might
    be deadlocked as to only one of the two counts, but instead
    focused on polling jurors as to whether the jury was actually
    deadlocked. The Court of Appeals concluded that “while it
    would have been helpful and perhaps the ‘better practice’ to
    poll the jurors, it was not an abuse of discretion for the dis-
    trict court to rely on the presiding juror’s representation to the
    court that the jury was deadlocked and to decline individual
    polling of the jurors.”
    Id. The Court of
    Appeals concluded that
    because the district court did not abuse its discretion when
    it declared a mistrial, it also did not err when it overruled
    Price’s plea in bar.
    We denied Price’s petition for further review of the Court of
    Appeals’ decision.
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. PRICE
    Cite as 
    306 Neb. 38
    Second Trial.
    After the Court of Appeals affirmed the denial of the plea
    in bar, the district court held a second trial, in June 2018. The
    evidence presented by the State included the following:
    Patrick Pantoja testified that at around 2:45 a.m. on October
    3, 2014, he and a friend, Emmanuel Nartey, were walking
    north on 14th Street toward downtown Lincoln. As they passed
    by the Nebraska State Capitol Building, walking toward K
    Street, a group of three men approached and asked them if
    they had money. Pantoja said they did not, and he and Nartey
    continued walking north. Seconds later, Pantoja felt a hit to the
    back of his head; his memories after that became spotty, and
    his next clear memory was waking in a hospital room. Pantoja
    was able to describe the three men in general terms of race
    and clothing, but at trial, he did not identify Price or any other
    person as an assailant. Pantoja further testified regarding items
    of value that he had on his person immediately prior to the
    incident and that he did not have afterward.
    Pantoja testified regarding the injuries he received and the
    effects of such injuries. The doctor who treated Pantoja also
    testified at trial and stated that when Pantoja arrived at the hos-
    pital, he was in a coma and required both a breathing tube and
    a feeding tube. Pantoja was diagnosed with severe traumatic
    brain injury; the doctor testified that such injury was consis-
    tent with being repeatedly punched and kicked in the head and
    that without medical intervention, his injuries could have been
    life threatening.
    Nartey also testified, and he was able to provide more
    details regarding the incident. When the three men initially
    approached Nartey and Pantoja, one of the men told them to
    empty their pockets. Nartey and Pantoja ignored the men and
    continued walking; one of the men then hit Pantoja “from the
    back.” At trial, Nartey described the three men as “[o]ne black
    guy and two white guys.” He further described one of the
    “white guys” as having a “bald head” and wearing a “white
    shirt . . . with black markings on the shirt,” and he testified
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    306 Nebraska Reports
    STATE v. PRICE
    Cite as 
    306 Neb. 38
    that this man was the man who first hit Pantoja. Nartey testi-
    fied that after the man first hit Pantoja, the second white man
    asked, “What are you guys doing?” and suggested they leave.
    The second white man either left or was otherwise not involved
    in what occurred after the first hit.
    Pantoja fell to the ground after being hit the first time. When
    Nartey “went in to separate” the white man from Pantoja,
    “the black guy came on to [Nartey] to push [him] away.”
    Pantoja had stood up, and so both the white man and the black
    man “went onto him to just hit him back to the ground . . .
    just punching him.” When Nartey “went in again to separate
    them,” the black man hit Nartey in the face and tried to empty
    Nartey’s pocket. Nartey decided to run, and when he ran, both
    men stopped hitting Pantoja and chased after Nartey.
    After Nartey got about a block away, he turned around and
    saw the two men had stopped chasing him. Nartey stopped and
    watched as the two men walked back toward Pantoja, who had
    stood up again; the two men knocked Pantoja to the ground
    again, and they “started kicking him in the face, in the head,
    anywhere”, and Nartey “saw them empty [Pantoja’s] pocket.”
    “[A]fter hitting [Pantoja] for several times, [the two men] just
    left.” After the two men left, Nartey ran to Pantoja and saw that
    “he had blood all over his face.” Nartey also saw that Pantoja’s
    “pocket was empty” and had apparently been searched. He also
    saw certain of Pantoja’s belongings, including a wallet and
    credit cards, “scattered around his body.” Nartey looked for
    and found his cell phone, which he had dropped while running
    from the men. As he called for emergency assistance, an officer
    in a police car arrived.
    The State asked Nartey at trial whether he saw “the white
    guy in court that [he] saw kicking and punching [Pantoja],”
    and Nartey identified Price. The State asked Nartey about his
    testimony that the “white guy . . . had a bald head.” Nartey
    testified that Price had “very short hair at the time,” but Nartey
    noted that at the time of the trial, Price’s hair had grown and
    was “longer now than it was then.”
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. PRICE
    Cite as 
    306 Neb. 38
    On cross-examination, Price asked Nartey about his testi-
    mony in this case and his statements prior to trial describing
    the white man who hit Pantoja as being “bald” or having “no
    hair whatsoever.” Price also cross-examined Nartey with a
    deposition in which Nartey described the man as wearing a
    “white shirt” but did not describe the shirt as having black
    lettering. Price also asked Nartey about being shown “six pho-
    tographs of the white suspects” and whether he would agree
    that he was “unable to identify any one in that photo lineup
    . . . as being the white man who assaulted . . . Pantoja.” The
    court sustained the State’s hearsay objection before Nartey
    could answer.
    Jerad McBride testified that he was the police officer who
    stopped upon seeing Pantoja on the ground with Nartey stand-
    ing next to him, trying to wave McBride down. McBride
    observed that Pantoja was unconscious and “gasping for air”
    and had sustained injuries to his face and trauma to his
    head. McBride testified that Nartey described to him what
    had occurred when Nartey and Pantoja were approached by
    the three men. McBride asked Nartey for descriptions of the
    men; McBride testified that Nartey described the white man as
    having “a slim build with like a shaved head, short hair” and
    wearing “a white shirt.” A patrol officer who had arrived on the
    scene drove around the nearby area looking for men matching
    the description given by Nartey but did not find anyone.
    As part of their investigation of this case, McBride and other
    officers requested video surveillance from security employees
    at the Nebraska State Capitol, who provided video that they
    thought might be relevant. McBride watched one surveillance
    video that was taken at around 2:44 a.m. on October 3, 2014,
    and depicted a portion of the Governor’s residence located near
    the Capitol building. McBride was attempting to determine
    whether persons depicted in the video matched the descriptions
    given of the suspects in this case. McBride asked another offi-
    cer, Andrew Vocasek, to watch the video because he had been
    in the area on the night of the incident.
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    STATE v. PRICE
    Cite as 
    306 Neb. 38
    Vocasek testified at trial that in the early hours of October
    3, 2014, he was working foot patrol in the area of 14th and O
    Streets in downtown Lincoln. Vocasek remembered talking to
    Price “sometime before 2 a.m.” on October 3. Vocasek knew
    Price from “see[ing] him around” and “chatting” with him on
    several prior occasions. Vocasek testified that he had a “casual
    conversation” with Price and that Price “was with another gen-
    tleman” at the time. Vocasek testified that when he watched the
    surveillance video, he recognized one of the persons depicted in
    the video, and that the appearance of the person was consistent
    with how Price looked when Vocasek had seen him earlier.
    Price thereafter became a suspect in the investigation, and
    police obtained a warrant to search the apartment in which
    Price lived with two other men, one of whom was Stelson
    Curry, who is a black male. In a search conducted on October
    30, 2014, police found, inter alia, several items of clothing
    that matched the clothing worn by the two persons shown in
    the surveillance video. Certain of the pieces of clothing were
    found in a room that was identified as being Price’s bedroom.
    An officer interviewed Price at the police station while the
    search warrant was being executed. Price denied taking part
    in the assault and initially stated that he likely had not left his
    apartment that night. After being shown still photographs from
    the surveillance video recorded around the time and location of
    the assault, Price stated that he may have gone out to one of
    two locations that night, but neither location was near where
    the surveillance camera was located.
    Another investigator testified that she listened to the record-
    ing of a call that Curry placed to Price from jail on October
    31, 2014, the day after the search. The call occurred after the
    interview of Price described above and at a time when Price
    had been released but Curry was in jail. In the conversation,
    Price listed for Curry the items that had been seized in the
    search of the apartment. In this call, Price identified some
    of the items of clothing as belonging to Curry and some as
    belonging to himself.
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    Police later submitted items found in the search for foren-
    sic testing. The testing showed that Pantoja’s blood was on a
    pair of shoes that had been identified as belonging to Curry.
    Thereafter, in February 2015, Curry was arrested in this case.
    Price was again interviewed by a police officer in April
    2015. Price still denied being involved in the assault; he
    no longer stated that he might have gone to one of the two
    locations he mentioned in the earlier interview, and instead,
    he said that he might have walked around with Curry smok-
    ing a marijuana cigarette. Price was arrested in this case in
    July 2015.
    At the close of the State’s case, Price moved for a directed
    verdict and the court overruled the motion. Price chose not to
    testify, and he presented no other evidence in his defense. After
    resting his defense, Price renewed his motion for a directed
    verdict and the court again overruled the motion.
    Price’s counsel made no objections during the State’s clos-
    ing argument. The jury thereafter returned verdicts finding
    Price guilty on both counts. Prior to sentencing, at Price’s
    request, the court discharged his counsel and appointed new
    counsel to represent Price. The court overruled Price’s motion
    for new trial. The court thereafter sentenced Price to concur-
    rent terms of imprisonment for 25 to 40 years on the two
    convictions.
    Price appeals his convictions and sentences.
    ASSIGNMENTS OF ERROR
    Price first makes two claims related to the first trial and the
    plea in bar: (1) that the court erred when it failed to inquire
    of the jury whether it was deadlocked on each count before it
    declared a mistrial and (2) that the court abused its discretion
    when it overruled his plea in bar.
    With regard to the second trial, Price claims that (1) the
    State committed prosecutorial misconduct by making various
    improper statements during closing argument, (2) the court
    abused its discretion when it overruled his motion for a new
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    306 Neb. 38
    trial, (3) the evidence was insufficient to support his convic-
    tions, and (4) the court imposed excessive sentences.
    Price also set forth an assignment of error reading as fol-
    lows: “[Price’s] Counsel was ineffective and thus his constitu-
    tional right to the effective assistance of counsel as guaranteed
    by the Sixth and Fourteenth Amendments to the United States
    Constitution and the respective guarantees in Article I § II of
    the Nebraska Constitution were violated.” In his assignment
    of error, Price did not specify how counsel’s performance was
    alleged to be deficient.
    [1] As we declared in State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
    (2019), assignments of error on direct appeal
    regarding ineffective assistance of trial counsel must specifi-
    cally allege deficient performance, and an appellate court will
    not scour the remainder of the brief in search of such speci-
    ficity. Recently, in State v. Guzman, ante p. 376, 
    940 N.W.2d 552
    (2020), we noted that the requirement had been repeated
    in subsequently published decisions and noted that the defend­
    ant’s brief in Guzman had been filed 3 months after our
    April 19, 2019, pronouncement in Mrza but failed to comply
    with the requirement. We rejected the defendant’s argument in
    Guzman that he met the requirement because his assignment of
    error informed us that the particular allegations of ineffective
    assistance would be set forth elsewhere in the brief with more
    particularity and because in the heading of his argument on the
    issue, he identified particular deficiencies in all bold and capi-
    tal letters. We declined to excuse counsel’s failure to comply
    with the pronouncement in Mrza, noting that his brief was filed
    3 months after the pronouncement in Mrza.
    Price’s brief in the present case was filed on August 22,
    2019, 4 months after our pronouncement in Mrza. The State in
    its brief noted the failure of Price’s assignment of error to com-
    ply with Mrza. In his reply brief, Price argues, similarly to the
    appellant in Guzman, that his “claims of ineffective assistance
    of counsel were properly presented” because such claims were
    “separately numbered and specifically discussed in detail” in
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    the argument section of his brief. Reply brief for appellant at
    2, 3. However, because in Guzman, we did not afford judicial
    grace to a brief filed 3 months after Mrza, a fortiori, such grace
    will not be afforded a brief filed 4 months after Mrza. We
    therefore do not consider Price’s assignment of error alleging
    ineffective assistance of counsel.
    STANDARDS OF REVIEW
    [2,3] When a defendant has not preserved a claim of prose-
    cutorial misconduct for direct appeal, we will review the record
    only for plain error. State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
    (2019). 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.
    Id. Generally, we will
    find plain error only when a miscarriage of
    justice would otherwise occur.
    Id. [4]
    The standard of review for the denial of a motion for
    new trial is whether the trial court abused its discretion in
    denying the motion. State v. Krannawitter, ante p. 66, 
    939 N.W.2d 335
    (2020).
    [5] Regardless of whether the evidence is direct, circumstan-
    tial, 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,
    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. State v. Case, 
    304 Neb. 829
    ,
    
    937 N.W.2d 216
    (2020).
    [6,7] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
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    trial court. State v. Becker, 
    304 Neb. 693
    , 
    936 N.W.2d 505
    (2019). An abuse of discretion occurs when a trial court’s deci-
    sion is based upon reasons that are untenable or unreasonable
    or if its action is clearly against justice or conscience, reason,
    and evidence.
    Id. ANALYSIS Assignments Related
    to First
    Trial and Plea in Bar.
    Price’s first two assignments of error relate to the district
    court’s declaration of a mistrial in the first trial and its over-
    ruling of his plea in bar prior to the second trial. We determine
    that the Court of Appeals’ decision in Price’s appeal from the
    overruling of the plea in bar establishes the law of the case
    on both topics, and we therefore reject these two assignments
    of error.
    [8,9] Under the law-of-the-case doctrine, the holdings of an
    appellate court on questions presented to it in reviewing pro-
    ceedings of the trial court become the law of the case; those
    holdings conclusively settle, for purposes of that litigation, all
    matters ruled upon, either expressly or by necessary implica-
    tion. State v. Lavalleur, 
    298 Neb. 237
    , 
    903 N.W.2d 464
    (2017).
    The law-of-the-case doctrine operates to preclude a reconsid-
    eration of substantially similar, if not identical, issues at suc-
    cessive stages of the same suit or prosecution.
    Id. [10,11]
    On appeal, the law-of-the-case doctrine is a rule
    of practice that operates to direct an appellate court’s discre-
    tion, not to limit its power. State v. Merchant, 
    288 Neb. 439
    ,
    
    848 N.W.2d 630
    (2014). We have recognized that the doctrine
    does not apply if considerations of substantial justice suggest
    a reexamination of the issue is warranted.
    Id. But matters pre-
    viously addressed in an appellate court are not reconsidered
    unless the petitioner presents materially and substantially dif-
    ferent facts. State v. 
    Lavalleur, supra
    .
    In the present case, Price had the opportunity and the incen-
    tive to raise matters regarding the plea in bar and the court’s
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    treatment of the deadlocked jury in the context of his appeal
    to the Court of Appeals from the denial of his plea in bar.
    Such matters were considered in that appeal, and the Court
    of Appeals’ rulings on the issues resulted in affirmance of the
    denial of Price’s plea in bar. We denied further review of the
    Court of Appeals’ rulings, and therefore, such rulings establish
    the law of the case.
    Although it determined that it did not directly have jurisdic-
    tion to consider orders other than the order which denied the
    plea in bar, the Court of Appeals nevertheless was obligated
    to consider Price’s challenge regarding mistrial in the context
    of the plea in bar. And without further review, the Court of
    Appeals’ assessments with regard to the grant of mistrial estab-
    lished the law of the case.
    Price’s claim in this appeal differs from his claim in the
    first appeal, wherein he asserted that it was error not to poll
    the jury. Here, he focuses on inquiring of the jurors whether
    they were deadlocked as to just one or both counts. As noted
    in the facts section above, in the earlier appeal, the Court of
    Appeals acknowledged and rejected Price’s arguments based
    on his reading of State v. Combs, 
    297 Neb. 422
    , 
    900 N.W.2d 473
    (2017). Instead, the Court of Appeals emphasized our
    statement in Combs that, although not required, it was “the bet-
    ter practice [to inquire] of the jury [and in doing so] whether
    it was deadlocked on every count before it granted a 
    mistrial.” 297 Neb. at 430
    , 900 N.W.2d at 481. Thus, as the Court of
    Appeals noted, there was no abuse when the district court did
    not poll the jury in the first trial. The force of that reasoning
    continues to be the law of the case, and we do not think that
    in the current appeal, Price has presented materially and sub-
    stantially different facts that would prompt us to reconsider
    those rulings. For example, Price has not, as did the defendant
    in Combs, shown evidence that jurors in his case were in fact
    not deadlocked on both counts or thought they had to be unani-
    mous as to both counts.
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    We therefore conclude that as to Price’s first two claims, the
    decision of the Court of Appeals affirming the denial of the
    plea in bar establishes the law of the case, and that although
    they are recast, we will not reconsider those rulings in this
    appeal. We reject both assignments of error.
    Prosecutor’s Comments During
    Closing Argument.
    [12] Price next claims that the State committed prosecuto-
    rial misconduct based on various allegedly improper comments
    made during closing argument. Price acknowledges that he did
    not object to those statements at the time they were made and
    that he did not move for a mistrial based on the statements. 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. State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
    (2019). Because Price did not move for a mistrial,
    the alleged error was waived, and accordingly, our review of
    the issue is confined to a search for plain error. See
    id. [13-16]
    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.
    Id. 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.
    Id. A prosecutor’s conduct
    that does not mislead and
    unduly influence the jury does not constitute misconduct.
    Id. 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.
    Id. Price sets forth
    35 remarks made by the prosecutor during
    closing arguments that he asserts were improper. He generally
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    groups the remarks into five categories, including remarks that
    he alleges (1) state the personal belief or opinion of the pros-
    ecutor regarding the credibility of testimony or the strength
    of the evidence; (2) label Price as a liar or imply that incon-
    sistencies in his statements are evidence of guilt; (3) inflame
    prejudices or excite passions of the jury; (4) misstate evidence,
    refer to matters not in evidence, suggest improper influences,
    or invite speculation; or (5) refer to other acts or wrongs that
    are not in evidence and would not have been allowed into
    evidence. We have reviewed each of the instances and find no
    plain error.
    Much of Price’s argument focuses on the prosecutor’s com-
    ments on the evidence, the strength of evidence, and the cred-
    ibility of testimony. While we have recognized that a prosecu-
    tor should not express his or her personal belief or opinion as
    to the truth or falsity of any testimony or evidence or the guilt
    of the defendant, we have further stated:
    [W]hen a prosecutor’s comments rest on reasonably
    drawn inferences from the evidence, the prosecutor is
    permitted to present a spirited summation that a defense
    theory is illogical or unsupported by the evidence and to
    highlight the relative believability of witnesses for the
    State and the defense. Thus, in cases where the prosecutor
    comments on the theory of defense, the defendant’s verac-
    ity, or the defendant’s guilt, the prosecutor crosses the
    line into misconduct only if the prosecutor’s comments
    are expressions of the prosecutor’s personal beliefs rather
    than a summation of the evidence.
    State v. Gonzales, 
    294 Neb. 627
    , 645-46, 
    884 N.W.2d 102
    , 117
    (2016). We reasoned in Gonzales that the danger of a prosecu-
    tor’s expressing a personal opinion is that the jurors may infer
    the prosecutor has access to information not in evidence and
    that with that inference and the imprimatur of the government,
    the jury might rest a decision on the government’s opinion
    rather than its own view of the evidence. In Gonzales, we
    rejected a rule that it is per se misconduct for the prosecutor to
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    state that the defendant lied or is a liar. Instead, we adopted an
    approach that
    looks at the entire context of the language used to deter-
    mine whether the prosecutor was expressing a personal
    opinion or merely submitting to the jury a conclusion that
    the prosecutor is arguing can be drawn from the evidence.
    If the prosecutor is commenting on the fact that the evi-
    dence supports the inference that the defendant lied, as
    opposed to a personal opinion carrying the imprimatur of
    the government, the comment is not misconduct. This is
    distinguishable from calling the defendant a “liar,” which
    is more likely to be perceived as a personal attack on the
    defendant’s character.
    Id. at 
    647, 884 N.W.2d at 118
    .
    Reviewing the State’s remarks in this case under that
    approach and considering them in context, we believe the
    remarks challenged by Price were inferences from the evidence
    rather than statements of the prosecutor’s personal opinion.
    Among his challenges, Price points to the instances where the
    prosecutor told the jurors to ask themselves “why is [Price]
    lying” and stated, “You know that is a lie.” However, when
    viewed in context, the remark arose where the prosecutor was
    discussing evidence from which it could be inferred that Price
    gave inconsistent statements and may have lied in order to
    cover his involvement. Other statements that Price character-
    izes as misstating the evidence or referring to matters not in
    evidence were instances of the prosecutor’s remarking on infer-
    ences that could be drawn from the evidence.
    Price also asserts that the State referred to other wrongs or
    acts that were not in evidence and would not be allowed into
    evidence. These remarks were in the context of discussing
    the surveillance video and the prosecutor’s characterizing the
    movements and actions of Price and his companion as indicat-
    ing that “they are going out to take stuff,” “checking cars,”
    “out to steal,” and “out to take things from other people.” Such
    remarks do not state that Price actually committed wrongs or
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    acts, other than those acts charged in this case, such as steal-
    ing from cars or from people other than Pantoja, and so are
    not improper references to other acts or crimes that were not
    and could not be in evidence. Instead, the prosecutor was com-
    menting on what was depicted in the surveillance video and
    suggesting possible inferences the jury might make based on
    Price’s actions and movement depicted in the video.
    We do not find the remarks challenged by Price to be
    improper, and we therefore do not find error, let alone plain
    error, when the court did not sua sponte declare a mistrial
    based on alleged prosecutorial misconduct. We reject this
    assignment of error.
    Motion for New Trial.
    Price next claims that the district court abused its discretion
    when it overruled his motion for new trial. We find no such
    abuse of discretion.
    In his arguments in support of the motion for new trial, Price
    focused in large part on the alleged prosecutorial misconduct
    during closing argument. As we discussed above, we do not
    find such remarks to be improper, and as we did not find plain
    error in the failure to declare a mistrial based on such remarks,
    we also determine the court did not abuse its discretion when
    it denied a new trial based on the same remarks. See State v.
    Cotton, 
    299 Neb. 650
    , 
    910 N.W.2d 102
    (2018) (finding no
    plain error in prosecutor’s statement to which defendant did not
    object and consequently finding no error in overruling motion
    for new trial based on prosecutorial misconduct), disapproved
    on other grounds, State v. Avina-Murilla, 
    301 Neb. 185
    , 
    917 N.W.2d 865
    (2018).
    A second reason Price urged for a new trial was that, as he
    asserts in his brief, a police officer testified regarding “how
    photo lineups are created with mugshots including a mugshot
    of [Price].” Brief for appellant at 44. Price appears to imply
    that because there was a “mugshot” of Price, he had com-
    mitted other crimes.
    Id. However, the record
    shows that in
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    direct questioning by the State, the officer merely referred
    to the photographs as “still photos” or “local photos.” Price
    did not object to such testimony. Further information regard-
    ing the photographic lineup was adduced by Price on cross-
    examination when he asked a series of questions about how the
    lineup was created. In response, the officer referred to “book-in
    photos” and does not appear to have referred to “mugshots.”
    Whether such testimony was unresponsive or inadmissible, it
    was minor in the context of the entire trial and not unfairly
    prejudicial. The court did not abuse its discretion by determin-
    ing it did not require a new trial.
    Finally, Price argued for a new trial because he alleged
    there was insufficient evidence to support the convictions. As
    discussed below, we conclude there was sufficient evidence.
    We therefore conclude that the district court did not abuse its
    discretion when it overruled Price’s motion for a new trial. We
    reject this assignment of error.
    Sufficiency of Evidence.
    Price next claims that the evidence was not sufficient to
    support his convictions. We conclude that the evidence was
    sufficient.
    [17] 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. State v. Case, 
    304 Neb. 829
    , 
    937 N.W.2d 216
    (2020).
    Price was charged with aiding and abetting a robbery and
    for aiding and abetting a first degree assault. Robbery is
    defined in Neb. Rev. Stat. § 28-324 (Reissue 2016) as being
    when, “with the intent to steal, [one] forcibly and by violence,
    or by putting in fear, takes from the person of another any
    money or personal property of any value whatever.” First
    degree assault is defined in Neb. Rev. Stat. § 28-308 (Reissue
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    2016) as when one “intentionally or knowingly causes serious
    bodily injury to another person.” The theory of aiding and
    abetting a criminal act is described in Neb. Rev. Stat. § 28-206
    (Reissue 2016) which provides that a “person who aids, abets,
    procures, or causes another to commit any offense may be
    prosecuted and punished as if he [or she] were the principal
    offender.” Our case law further defines “aiding and abetting”
    as follows:
    [A]iding and abetting requires some participation in a
    criminal act which must be evidenced by word, act, or
    deed, and mere encouragement or assistance is sufficient
    to make one an aider or abettor. No particular acts are
    necessary, however, nor is it necessary that the defendant
    take physical part in the commission of the crime or that
    there was an express agreement to commit the crime. Yet,
    evidence of mere presence, acquiescence, or silence is
    not enough to sustain the State’s burden of proving guilt
    under an aiding and abetting theory.
    State v. Stubbendieck, 
    302 Neb. 702
    , 716-17, 
    924 N.W.2d 711
    ,
    723 (2019).
    In this case, there was sufficient evidence, including the
    testimony of both Nartey and Pantoja, to establish that two
    men punched and kicked Pantoja to the extent of causing him
    serious bodily injury and that through the use of such vio-
    lence, the men took property of value from Pantoja’s person.
    Nartey identified Price as one of the men who carried out the
    assault and robbery, and there was also circumstantial evidence
    including the surveillance video and the testimony of a police
    officer that placed Price in the vicinity of the incident around
    the time that the incident occurred. To the extent the evidence
    is not specific regarding which of the two men delivered the
    specific punches and kicks that caused Pantoja serious bodily
    injury or which of the two men took property of value from
    Pantoja’s person, the evidence was sufficient to show that if
    Price did not himself perform such acts, he aided and abet-
    ted the other man in doing so. See State v. Thomas, 
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    298, 
    314 N.W.2d 15
    (1981) (in context of brawl, attributing
    particular injuries to particular actions was difficult, but as
    participant in conspiratorial effort to harm victim, defendant
    was liable for all victim’s injuries). The evidence in this case
    indicates that two men participated in the criminal acts and
    that Price’s participation went beyond mere presence, acquies-
    cence, or silence.
    Much of Price’s argument with regard to sufficiency of the
    evidence focuses on the credibility of Nartey’s identification
    of Price as one of the assailants. He argues that Nartey’s tes-
    timony was inconsistent and that Nartey’s description of the
    white man’s appearance and clothing differed from Price’s
    appearance and clothing at the time of the incident as shown
    in the surveillance video. For example, Nartey described the
    white male sometimes as being “bald” and other times as hav-
    ing “very short hair,” and Price asserts that the video shows
    that he “ha[d] hair” at the time, brief for appellant at 57. Price
    also argues that the clothing as shown in the video differs from
    Nartey’s description and that the video shows features such as
    tattoos, a watch, and earrings that Nartey did not include in his
    description of the assailant. Price argues that Nartey’s identifi-
    cation of Price was key to the case because there was no other
    evidence such as DNA, fingerprints, or other witness testimony
    to identify him as the assailant.
    With respect to inconsistencies, we note that Price was
    able to call the jury’s attention to any alleged inconsisten-
    cies in Nartey’s testimony and the jury was able to watch
    the video to determine whether Price’s appearance and cloth-
    ing on that night were consistent with Nartey’s description
    of the assailant; it was then the jury’s duty to determine the
    credibility of Nartey’s in-court identification of Price as the
    assailant. We do not pass on the credibility of witnesses on
    appeal, State v. Case, 
    304 Neb. 829
    , 
    937 N.W.2d 216
    (2020),
    and Nartey’s identification of Price, if believed by the jury,
    along with the other evidence presented at trial, supports
    Price’s convictions.
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    We conclude that there was sufficient evidence to support
    Price’s convictions for aiding and abetting robbery and aid-
    ing and abetting first degree assault. We therefore reject this
    assignment of error.
    Excessive Sentences.
    Price finally claims that the district court imposed excessive
    sentences. We conclude that the sentences were within statu-
    tory limits and that the court did not abuse its discretion when
    it imposed the sentences.
    Section 28-206 provides that one who aids and abets a crime
    “may be . . . punished as if he [or she] were the principal
    offender.” Under §§ 28-324(2) and 28-308(2), respectively,
    robbery and first degree assault are both Class II felonies.
    Under Neb. Rev. Stat. § 28-105(1) (Reissue 2016), the sen-
    tence for a Class II felony is imprisonment for a minimum of
    1 year and a maximum of 50 years. The concurrent sentences
    of imprisonment for 25 to 40 years that the court imposed on
    Price were therefore within statutory limits.
    [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. State v. Becker, 
    304 Neb. 693
    , 
    936 N.W.2d 505
    (2019). In determining a sentence to be imposed, relevant fac-
    tors 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.
    Id. The appropriate- ness
    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 sur-
    rounding the defendant’s life.
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    Price argues that the district court ignored or failed to give
    adequate consideration to mitigating factors, including trauma
    and abuse in his childhood and mental health issues that arose
    therefrom, the likelihood he would be responsive to probation
    supervision based on how he had conducted himself in custody
    during the pendency of this case, letters attesting to his charac-
    ter, and the effect of his potential imprisonment on his wife and
    young child. He also argues that the court did not adequately
    consider he had a lower level of culpability in the crime than
    Curry, who Price argues was the “main aggressor” and “caused
    the serious injuries to [Pantoja].” Brief for appellant at 61.
    Price asserts that Curry was given “exactly the same sentence”
    as Price despite Curry’s greater culpability and less-compelling
    mitigating factors.
    Id. At sentencing, the
    court noted that it had reviewed the pre-
    sentence report and heard argument by Price’s counsel, as well
    as Price’s own statement to the court. The presentence report
    and the statements at the sentencing hearing include the miti-
    gating factors set forth above. The court stated that in deter-
    mining Price’s sentence, it had regard for, inter alia, Price’s
    “history character and condition.” But the court also considered
    factors urged by the State, particularly noting the seriousness
    of the crime and the impact of the “severe injuries” to Pantoja
    on his life, his future, and his family and friends. There is noth-
    ing to indicate that the court considered inappropriate factors
    or that it ignored mitigating factors. We cannot say that the
    sentences were an abuse of discretion. We reject this assign-
    ment of error.
    CONCLUSION
    Having determined that Price’s assignments of error are
    either without merit or cannot be considered in this appeal, we
    therefore affirm Price’s convictions and sentences.
    Affirmed.