State v. Fernandez ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/10/2023 09:06 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. FERNANDEZ
Cite as 313 Neb. 745State of Nebraska, appellee, v.
Mary Rose Fernandez, appellant.
___ N.W.2d ___
Filed March 10, 2023. No. S-22-416.
1. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
2. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of counsel may be determined on direct appeal is a
question of law.
3. Jury Instructions: Proof: Appeal and Error. In an appeal based upon
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
4. Jury Instructions: Appeal and Error. All the jury instructions must be
read together, and if, taken as a whole, they correctly state the law, are
not misleading, and adequately cover the issues supported by the plead-
ings and the evidence, there is no prejudicial error necessitating reversal.
5. ____: ____. A jury instruction which misstates the issues and has a tend­
ency to confuse the jury is erroneous.
6. Jury Instructions. Whenever an applicable instruction may be taken
from the Nebraska Jury Instructions, that instruction is the one which
should usually be given to the jury in a criminal case.
7. Jury Instructions: Appeal and Error. Although the Nebraska pattern
jury instructions are to be used whenever applicable, a failure to follow
the pattern jury instructions does not automatically require reversal.
8. Jury Instructions. A trial court’s obligation is to instruct a jury cor-
rectly; so long as that is done, the source of its language is unimportant.
9. Jury Instructions: Convictions: Appeal and Error. Before an error
in the giving of instructions can be considered as a ground for rever-
sal of a conviction, it must be considered prejudicial to the rights of
the defendant.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. FERNANDEZ
Cite as 313 Neb. 74510. Constitutional Law: Jury Instructions. The proper inquiry is not
whether a jury instruction “could have” been applied in an unconstitu-
tional manner, but whether there is a reasonable likelihood that the jury
applied it in that manner.
11. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence
to the contrary, it is presumed that a jury followed the instructions given
in arriving at its verdict.
12. Theft: Value of Goods: Appeal and Error. When a fact finder deter-
mines the value of property in a theft case, an appellate court will not
set aside the finding unless it is clearly erroneous.
13. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
14. 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.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Angelica W. McClure, of Kotik & McClure Law, for
appellant.
Douglas J. Peterson, Attorney General, and Teryn Blessin
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In this direct appeal, Mary Rose Fernandez challenges her
conviction and sentence, pursuant to jury verdict, for theft by
deception. 1 Fernandez primarily contends that a jury’s deter-
mination of value in a theft prosecution must be a specific
number. We first reject her challenge to a supplemental jury
instruction and an amended verdict form permitting a verdict
1
See Neb. Rev. Stat. §§ 28-512 and 28-518(2) (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. FERNANDEZ
Cite as 313 Neb. 745by value ranges. We then determine that her ineffective assist­
ance of counsel assignment failed to specifically allege defi-
cient performance. Accordingly, we affirm.
II. BACKGROUND
1. Information
The State filed an information charging Fernandez with theft
by deception in violation of § 28-512. The information gener-
ally alleged that Fernandez used deception to obtain property,
valued at $1,500 or more but less than $5,000, using a financial
instrument that belonged to her sister. Because of the alleged
value, it was purported to be a Class IV felony.
Fernandez entered a plea of not guilty, and the case pro-
ceeded to a jury trial. In the sections that follow, we summa-
rize the trial proceedings to the extent necessary to address the
assignments of error raised on appeal.
2. Evidence and Initial Instructions
The evidence adduced at trial showed that the victim,
Fernandez’ sister, was in a coma for 10 days in August 2020.
During that time, Fernandez made various purchases and ATM
withdrawals using her sister’s debit card. The court received as
evidence her sister’s bank statement, which listed the follow-
ing transactions:
Date Transaction Amount
8/8/2020 ATM withdrawal $  102.50
8/8/2020 ATM withdrawal 302.50
8/8/2020 ATM withdrawal 302.50
8/8/2020 ATM withdrawal 302.50
8/10/2020 Walmart purchase   22.11
8/10/2020 Kwik Shop purchase   34.87
8/10/2020 ATM withdrawal 302.75
8/10/2020 ATM withdrawal 302.75
8/10/2020 ATM withdrawal 402.50
TOTAL $2,074.98
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STATE V. FERNANDEZ
Cite as 313 Neb. 745The State presented security camera videos, photographs,
and witnesses’ testimony that linked Fernandez to these
transactions.
Fernandez’ own testimony confirmed that she used her
sister’s debit card on the dates and at the locations set forth
in the bank statement. Fernandez explained that she used the
debit card with her sister’s permission and withdrew a total
of $2,900 in cash from her sister’s bank account. Fernandez
claimed that she later put the money into envelopes and that “it
went back into her [sister’s] purse.”
Fernandez’ sister testified that at no point did she give
Fernandez permission to use her debit card. She further testi-
fied that when she woke from the coma, she learned that her
wallet—which had been at Fernandez’ house—was missing
$130 in cash, and that there was a substantial amount of money
missing from her bank account. She did not find envelopes of
cash inside her purse.
After closing arguments, the court instructed the jury regard-
ing the applicable law. Instruction No. 3 set forth the material
elements of theft by deception and instructed that the State had
the burden of proving each element beyond a reasonable doubt.
Additionally, instruction No. 3 stated:
Declaration of Value
If you find . . . Fernandez guilty of Theft by Deception,
you must then decide, beyond a reasonable doubt,
the value of the property obtained by her on, about,
or between August 8, 2020, and August 10, 2020, in
Lancaster County, Nebraska. Once you have determined
the value, record the amount on the appropriate place on
the verdict form.
The court instructed the jury that its verdict must be unani-
mous. The original verdict form is not in the record before us.
At oral argument, counsel seemed to agree that it contained a
dollar sign followed by a blank space, in which the jury was to
enter a specific number.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. FERNANDEZ
Cite as 313 Neb. 7453. Deliberations and
Supplemental Instructions
During deliberations, the jury submitted a handwritten ques-
tion to the district court. It asked: “Do we, as a jury[,] need to
reach a unan[i]mous decision regarding the value, assuming
a unan[i]mous guilty verdict is reached? Or can it be major-
ity vote?”
In response, the court proposed instruction No. 13, which
stated:
If you find . . . Fernandez guilty of Theft by Deception
but you cannot reach a unanimous verdict as to the
exact value of the property obtained by her on, about,
or between August 8, 2020, and August 10, 2020, in
Lancaster County, Nebraska, you may decide a range
of the value of the property obtained by her on, about,
or between August 8, 2020, and August 10, 2020, in
Lancaster County, Nebraska, and designate the range on
the amended verdict form provided to you.
You must be unanimous as to the range you select.
The proposed amended verdict form provided in part:
If you find . . . Fernandez is guilty of Theft by
Deception but you cannot agree as to the value of the
property, you may find the value of the property is within
a range. (Circle your finding and only circle one of
the following):
Guilty of Theft by Deception with the property having
a value between $.01 to $499.99.
Guilty of Theft by Deception with the property having
a value between $500.00 to $1,499.99.
Guilty of Theft by Deception with the property having
a value between $1,500.00 to $4,999.99.
The record indicates that before the court made these
changes, Fernandez’ counsel objected to both instruction No.
13 and the amended verdict form. He indicated that he thought
there was “a requirement of unanimity as to value.” He then
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STATE V. FERNANDEZ
Cite as 313 Neb. 745stated: “To that extent, I agree with the [c]ourt’s language in
[p]roposed [instruction] No. 13, that they must be unanimous
as to the range of value.” Fernandez’ counsel further stated
that he “somewhat disagree[d] with the idea that just the
ranges are all that are necessary.” To support his argument, he
pointed to the comment accompanying a Nebraska pattern jury
instruction. 2
The State contended that instruction No. 13 and the amended
verdict form accurately stated the law as set forth in State v.
Dixon. 3 The court agreed with the State and ultimately ten-
dered instruction No. 13 and the amended verdict form. The
jury resumed deliberations.
4. Verdict and Sentencing
Following those deliberations, the jury found Fernandez
guilty of theft by deception. On the amended verdict form,
the jury circled the last range of values, finding that the prop-
erty obtained by Fernandez had a value between $1,500 to
$4,999.99. The court convicted Fernandez of theft by decep-
tion, a Class IV felony, 4 and sentenced her to 14 months’
imprisonment.
Fernandez filed a timely appeal, which we moved to our
docket. 5
III. ASSIGNMENTS OF ERROR
Fernandez assigns, reordered, that (1) the district court
“erred [in] the wording of [j]ury [i]nstruction No. 13 and in
amending the verdict form after the jury began deliberations”
and (2) she received ineffective assistance of counsel, because
“her trial counsel failed to present documents and witnesses
that would support her defense.”
2
See NJI2d Crim. 3.6.
3
State v. Dixon, 306 Neb. 853, 947 N.W.2d 563 (2020).
4
See § 28-518(2).
5
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
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Nebraska Supreme Court Advance Sheets
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STATE V. FERNANDEZ
Cite as 313 Neb. 745IV. STANDARD OF REVIEW
[1] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. 6
[2] Whether a claim of ineffective assistance of counsel may
be determined on direct appeal is a question of law. 7
V. ANALYSIS
1. Jury Instruction and Amended
Verdict Form
The primary question presented by this appeal is whether
the jury must unanimously agree upon a single, specific num-
ber in determining the value of property obtained by theft.
Fernandez’ first assignment of error challenges jury instruction
No. 13—the supplemental instruction permitting a verdict by
value ranges rather than a specific number—and asserts that
the trial court erred in amending the verdict form after jury
deliberations began.
We begin by setting forth the relevant provisions of § 28-518,
which grades theft offenses based on the value of stolen prop-
erty and imposes additional requirements. We then recite basic
legal principles that guide our analysis of jury instructions.
Finally, we address Fernandez’ arguments.
(a) Relevant Provisions
in § 28-518
Under § 28-518, the greater the value of the property
involved in a theft, the more severe the punishment which may
be imposed on conviction for the theft. 8 As relevant to this
appeal, the grading subsections of § 28-518 provide:
6
State v. Garcia, 311 Neb. 648, 974 N.W.2d 305 (2022).
7
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
8
State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992), disapproved on
other grounds, State v. Dixon, supra note 3.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. FERNANDEZ
Cite as 313 Neb. 745(2) Theft constitutes a Class IV felony when the value
of the thing involved is one thousand five hundred dollars
or more but less than five thousand dollars.
(3) Theft constitutes a Class I misdemeanor when the
value of the thing involved is more than five hundred dol-
lars but less than one thousand five hundred dollars.
(4) Theft constitutes a Class II misdemeanor when the
value of the thing involved is five hundred dollars or less.
The statute further provides that in determining the classifica-
tion of the offense, amounts taken pursuant to one scheme or
course of conduct may be aggregated. 9 Here, the State alleged
that the total value of the property obtained by Fernandez was
$1,500 or more but less than $5,000, making the offense a
Class IV felony under § 28-518(2).
Another subsection 10 of § 28-518 defines value as an
essential element of the offense that must be proved beyond
a reasonable doubt. That subsection applies in any pros-
ecution for theft, 11 including Fernandez’ conviction for theft
by deception. 12
(b) Legal Principles
[3-5] Before addressing Fernandez’ arguments, we recall
basic legal principles that guide our analysis of jury instruc-
tions. In an appeal based upon a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. 13 All the jury
instructions must be read together, and if, taken as a whole,
they correctly state the law, are not misleading, and ade-
quately cover the issues supported by the pleadings and the
9
See § 28-518(7).
10
See § 28-518(8).
11
See id.
12
See § 28-512.
13
State v. Greer, 312 Neb. 351, 979 N.W.2d 101 (2022).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. FERNANDEZ
Cite as 313 Neb. 745evidence, there is no prejudicial error necessitating reversal. 14
A jury instruction which misstates the issues and has a tend­
ency to confuse the jury is erroneous. 15
(c) Discussion
To convict Fernandez of a Class IV felony for theft, the
State had to prove beyond a reasonable doubt that the value of
the stolen property was $1,500 or more but less than $5,000.
Fernandez contends that the trial court erred in providing
the supplemental jury instruction, which permitted a verdict
based on value ranges rather than a specific number. For the
reader’s convenience, we repeat the supplemental instruction,
which provided:
If you find . . . Fernandez guilty of Theft by Deception
but you cannot reach a unanimous verdict as to the
exact value of the property obtained by her on, about,
or between August 8, 2020, and August 10, 2020, in
Lancaster County, Nebraska, you may decide a range
of the value of the property obtained by her on, about,
or between August 8, 2020, and August 10, 2020, in
Lancaster County, Nebraska, and designate the range on
the amended verdict form provided to you.
You must be unanimous as to the range you select.
Fernandez argues that the instruction misstated the law and that
it violated her constitutional right to a unanimous jury verdict.
She further argues that the instruction precludes any determi-
nation as to whether the jury erred in its findings. We address
each argument.
(i) Misstatement of
Law Argument
According to Fernandez, the supplemental instruction was
a correct statement of the law only to the extent that it
14
State v. Jennings, 312 Neb. 1020, 982 N.W.2d 216 (2022).
15
State v. Garcia, supra note 6.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. FERNANDEZ
Cite as 313 Neb. 745stated “‘[the jury] must be unanimous.’” 16 She maintains that
the language permitting the jury to decide on a value range
rather than a specific value was clearly erroneous.
In the proceedings below, Fernandez objected to the supple-
mental instruction on the ground that it was inconsistent with
the comment accompanying the pattern jury instruction in
NJI2d Crim. 3.6. The comment states, in relevant part:
NJI2d Crim. 3.6 requires that the jury state in the
verdict form the precise value of the property taken. The
Committee decision to require a specific jury statement as
to value is a decision both as to what clearly is permis-
sible under Nebraska law and to provide assistance to a
judge making a restitution decision . . . .
On appeal, Fernandez again points to the comment accompa-
nying NJI2d Crim. 3.6 in arguing that the jury must find the
specific value of the stolen property to sustain a conviction. We
are not persuaded.
[6,7] Whenever an applicable instruction may be taken
from the Nebraska Jury Instructions, that instruction is the one
which should usually be given to the jury in a criminal case. 17
However, although the Nebraska pattern jury instructions are
to be used whenever applicable, a failure to follow the pat-
tern jury instructions does not automatically require reversal. 18
Thus, whether the trial court followed the pattern jury instruc-
tion is not dispositive of this issue.
We next turn to our prior decisions that closely parallel the
question presented by this appeal. Three cases are particu-
larly instructive.
In State v. Gartner, 19 we interpreted the plain language
of § 28-518(8), which states: “In any prosecution for theft
16
Brief for appellant at 20.
17
State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).
18
State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
19
State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. FERNANDEZ
Cite as 313 Neb. 745under sections 28-509 to 28-518, value shall be an essential
element of the offense that must be proved beyond a reason-
able doubt.” Our analysis led to an important conclusion.
We first explained that it is not within the province of a
court to read a meaning into a statute that is not warranted
by the language; neither is it within the province of a court to
read anything plain, direct, or unambiguous out of a statute.
We observed:
The plain language of § 28-518(8) requires that the State
must prove, as an element of a theft offense, that the
item stolen has at least some intrinsic value. The statute
does not require that proof of a specific value must be
presented in order for the conviction to be sustained,
although the State must prove the specific value of the
stolen property at the time of the theft beyond a reason-
able doubt in order to obtain a conviction for any offense
greater than a Class II misdemeanor. 20
We then held that while § 28-518(8) requires that intrinsic
value be proved beyond a reasonable doubt as an element of
the offense, proof of a specific value at the time of the theft
is necessary only for gradation of the offense. Stated differ-
ently, “[t]he statutory language requires only that some value
be proved as an element of a theft offense, not that a particular
threshold value be proved as an element of the offense.” 21
In State v. Almasaudi, 22 we adhered to that interpre-
tation. There, the defendant argued that the State did not
properly establish the value of the stolen property to sustain
his conviction. Citing our interpretation of § 28-518(8) in
Gartner, we concluded that a rational trier of fact could have
found that the stolen property had some value based on the
20
Id. at 169, 638 N.W.2d at 863.
21
Id. at 168, 638 N.W.2d at 862 (emphasis supplied).
22
State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. FERNANDEZ
Cite as 313 Neb. 745evidence presented. We confirmed: “This is all that is required
to support a conviction on a theft offense.” 23
Then, in Dixon, 24 we followed Almasaudi. In that case, the
jury was given a verdict form on which it was directed to circle
either “‘[g]uilty’” or “‘[n]ot [g]uilty’” regarding a felony
theft offense. 25 The verdict form further directed the jury, if
it found the defendant guilty of the offense, to find the value
of the property by circling one of the following: “‘$1,500.00
to $4,999.99,’” 26 “‘$500.00 to $1,499.99,’” 27 or “‘$0.01 to
$499.99.’” 28 There, the jury returned the verdict form finding
the defendant guilty of the theft offense and that the value of
the property was $1,500 to $4,999.99.
In Dixon, we again observed that § 28-518(8) states that
value shall be an essential element of a theft offense that must
be proved beyond a reasonable doubt. We then explained:
But in State v. Almasaudi,[ 29] we held that the statutory
language of § 28-518(8) requires only that some value be
proved beyond a reasonable doubt, not that a particular
threshold value be proved. Stated differently, § 28-518(8)
requires proof of a specific value only so the offense
may be classified for purposes of punishment, but no
specific value must be proved for the theft conviction to
be sustained. 30
23
Id. at 175, 802 N.W.2d at 123.
24
State v. Dixon, supra note 3.
25
Id. at 859, 947 N.W.2d at 569.
26
Id. See § 28-518(2).
27
State v. Dixon, supra note 3, 306 Neb. at 859, 947 N.W.2d at 569. See
§ 28-518(3).
28
State v. Dixon, supra note 3, 306 Neb. at 859, 947 N.W.2d at 569. See
§ 28-518(4).
29
State v. Almasaudi, supra note 22.
30
State v. Dixon, supra note 3, 306 Neb. at 868-69, 947 N.W.2d at 575
(emphasis supplied).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. FERNANDEZ
Cite as 313 Neb. 745We understand § 28-518(8) and the foregoing cases inter-
preting that subsection to require the State to prove and the
jury to find only that the property at issue had some value in
order to convict Fernandez of a theft offense. In addition, in
order for any theft conviction to be graded above a Class II
misdemeanor, the State had to prove and the jury had to find
that the property at issue had a value falling within the ranges
of value set forth for the various grades of theft in § 28-518.
[8] Here, the supplemental instruction stated that if the jury
found Fernandez guilty of theft by deception but could not
reach a unanimous verdict as to the exact value of the property,
it “may decide a range of the value of the property obtained by
[Fernandez].” This language sufficiently communicated to the
jury that it must find some value in order to convict Fernandez
of theft. Although the source of the instruction’s language is
unclear, we have established that a trial court’s obligation is to
instruct a jury correctly; so long as that is done, the source of
its language is unimportant. 31
Turning to the amended verdict form, however, the source
of the language is clear. The record confirms that the trial
court modified the verdict form based on its reading of Dixon.
As amended, the verdict form directed the jury to select
either “[g]uilty” or “[n]ot guilty” for the offense charged. If
the jury found Fernandez “[g]uilty,” there was a dollar sign
followed by a blank space, in which the jury could enter its
determination of value. The form then directed the jury, if it
found Fernandez guilty of the offense, that it may find the
value of the property was within one of the following ranges:
“$.01 to $499.99,” 32 “$500.00 to $1,499.99,” 33 or “$1,500.00
to $4,999.99.” 34 This language ensured that the jury would
31
See State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995).
32
See § 28-518(4).
33
See § 28-518(3).
34
See § 28-518(2).
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STATE V. FERNANDEZ
Cite as 313 Neb. 745make a determination that would allow for the appropriate
statutory grading of a theft offense.
The jury returned the verdict form finding Fernandez guilty
of theft by deception and finding the value of the property was
$1,500 to $4,999.99. In light of our precedent, we see no error
in the amended verdict form or the accompanying instruction. 35
While we would generally discourage the practice of amend-
ing jury verdict forms during deliberations, we see no preju-
dice here.
Finally, we note that in other cases, 36 we have determined
that the trier of fact must make a specific finding as to the
value of the property stolen, before an order of restitution
can be made. Fernandez further argues that the supplemen-
tal instruction and the amended verdict form were errone-
ous because they “infringe[d] on the rights of the victim to
recover restitution from [Fernandez].” 37 But here, no restitution
was ordered.
[9] Fernandez cannot allege prejudice based on her claim
that the range instruction affected someone else’s substantial
rights. As noted above, in an appeal based upon a claim of
an erroneous jury instruction, the appellant has the burden to
show that the questioned instruction was prejudicial or other-
wise adversely affected a substantial right of the appellant. 38
Before an error in the giving of instructions can be considered
as a ground for reversal of a conviction, it must be consid-
ered prejudicial to the rights of the defendant. 39 We express
no opinion how a similar instruction regarding value might
35
See State v. Gartner, supra note 19 (stating district court did not err in
providing verdict forms that were simply consistent with jury instructions
given).
36
See, e.g., State v. Frandsen, 199 Neb. 546, 260 N.W.2d 206 (1977).
37
Brief for appellant at 22.
38
State v. Greer, supra note 13.
39
State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).
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STATE V. FERNANDEZ
Cite as 313 Neb. 745affect a restitution order in a different case. We next turn to
Fernandez’ constitutional argument.
(ii) Constitutional Right to
Unanimous Jury Verdict
Fernandez argues that the supplemental instruction violated
her right to a unanimous jury verdict. She points to the U.S.
Supreme Court’s decision in Ramos v. Louisiana, 40 holding
that the 6th Amendment right to a jury trial, as incorporated
against the States by way of the 14th Amendment, requires a
unanimous verdict to convict a defendant of a serious offense.
In Ramos, the lower court convicted the defendant of a seri-
ous offense based on a 10-to-2 jury verdict. The U.S. Supreme
Court reversed the lower court’s judgment, finding the non­
unanimous verdict infringed on the defendant’s constitutional
rights. According to Fernandez, allowing the jury to decide the
value of the stolen property based on a range of values was
“essentially instituting a situation directly analogous to the
10-2 verdict” in Ramos. 41
[10,11] As noted above, all the jury instructions must be
read together, and if, taken as a whole, they correctly state
the law, are not misleading, and adequately cover the issues
supported by the pleadings and the evidence, there is no preju-
dicial error necessitating reversal. 42 The proper inquiry is not
whether a jury instruction “could have” been applied in an
unconstitutional manner, but whether there is a reasonable
likelihood that the jury applied it in that manner. 43 Absent
evidence to the contrary, it is presumed that a jury followed
the instructions given in arriving at its verdict. 44 Applying
40
Ramos v. Louisiana, ___ U.S. ___, 140 S. Ct. 1390, 206 L. Ed. 2d 583(2020).
41
Brief for appellant at 21.
42
State v. Jennings, supra note 14.
43
State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
44
State v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021).
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STATE V. FERNANDEZ
Cite as 313 Neb. 745these principles to the facts of this case, there are at least two
problems with Fernandez’ argument.
First, reading the jury instructions together, we presume that
the jury arrived at a unanimous verdict. The jury instructions
specifically advised the jury: “Any verdict you reach must be
unanimous.” They then emphasized: “[D]o not surrender your
honest conviction as to the weight or effect of the evidence
solely because of the opinion of the other jurors or for the mere
purpose of returning a verdict.” The supplemental instruc-
tion also advised the jury: “You must be unanimous as to the
[value] range you select.” We further note that jury instructions
Nos. 2, 3, 4, 5, and 9 repeatedly advised the jury regarding the
State’s burden to prove each element of the offense beyond a
reasonable doubt. We conclude that the jury’s presumed adher-
ence to the instructions indicates the jury reached a unanimous
verdict and that the State proved each element beyond a rea-
sonable doubt.
Second, the amended jury verdict form reflects that the jury
made a single finding as to Fernandez’ guilt and the stolen
property’s value. On the form, the jury indicated with an “x”
that it found Fernandez guilty of theft by deception. It then
circled: “Guilty of Theft by Deception with the property hav-
ing a value between $1,500.00 to $4,999.99.” This persuades
us that the jury determined, unanimously, that Fernandez was
guilty and that the value of the stolen property was $1,500 to
$4,999.99. The record indicates that all 12 jurors, by a show of
hands, confirmed that this was their verdict.
On these facts, we conclude that the jury reached a unani-
mous verdict as to Fernandez’ guilt and the elements of the
offense. Because Fernandez’ constitutional right to a unani-
mous verdict was not violated, we find this argument to be
without merit.
(iii) Clear Error Argument
[12] Finally, we address Fernandez’ contention that permit-
ting a verdict by value ranges “makes it virtually impossible
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313 Nebraska Reports
STATE V. FERNANDEZ
Cite as 313 Neb. 745for the [a]ppellate court to determine whether the value of
the property was erroneous.” 45 We have previously stated that
when a fact finder determines the value of property in a theft
case, an appellate court will not set aside the finding unless it
is clearly erroneous. 46 That applies here. Based on the evidence
presented at trial, we can conclude that the jury’s finding as to
value ($1,500 to $4,999.99) was not clearly erroneous.
The record demonstrates that the State introduced as evi-
dence Fernandez’ sister’s bank statement, which reflected pur-
chases and ATM withdrawals that add up to over $2,000. The
State also presented security camera videos, photographs, and
the testimony of multiple witnesses linking Fernandez to these
transactions. Fernandez, herself, admitted that she withdrew a
total of $2,900 in cash from her sister’s account. Accordingly,
this argument, too, lacks merit.
2. Ineffective Assistance
of Counsel
Fernandez next assigns that she received ineffective assist­
ance of counsel, because “her trial counsel failed to present
documents and witnesses that would support her defense.” The
State contends that this assignment of error lacks the specific-
ity we demand on direct appeal. We agree.
[13,14] 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. 47 Further, assign-
ments 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. 48 We decline to do so here.
45
Brief for appellant at 21.
46
State v. Dixon, supra note 3.
47
State v. Miranda, ante p. 358, 984 N.W.2d 261 (2023).
48
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STATE V. FERNANDEZ
Cite as 313 Neb. 745VI. CONCLUSION
On the facts of this case, we conclude that there was no
prejudicial error in the supplemental instruction given by the
district court or in supplying the amended verdict form. We
further conclude that Fernandez failed to sufficiently allege
deficient performance by her counsel in her assignment of
error. Finding no error warranting reversal, we affirm the dis-
trict court’s judgment.
Affirmed.