State v. Duncan , 293 Neb. xxx ( 2016 )

OPINION OF THE SUPREME COURT OF NEBRASKA
NOTICE: DUE TO UNFORESEEN CIRCUMSTANCES, THIS OPINION IS BEING POSTED
TEMPORARILY IN “SLIP” OPINION FORM. IT WILL BE REPLACED AT A LATER
DATE WITH AN “ADVANCE” OPINION, WHICH WILL INCLUDE A CITATION.
Case Title
STATE OF NEBRASKA, APPELLEE,
V.
GREGORY S. DUNCAN, APPELLANT.
Case Caption
STATE V. DUNCAN
Filed April 15, 2016. No. S-15-668.
Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF,
Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Cindy A. Tate, and Korey T.
Taylor for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
STATE v. DUNCAN
Filed April 15, 2016. No. S-15-668.
1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct,
circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a
failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, an appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favorably to the State, is
sufficient to support the conviction.
2. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of
law, which an appellate court independently decides.
3. Sentences: Words and Phrases: Appeal and Error. An appellate court reviews criminal
sentences for abuse of discretion, which occurs when a trial court’s decision is based upon
reasons that are untenable or unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
4. Effectiveness of Counsel: Appeal and Error. 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 questions of
law: Are the undisputed facts contained within the record 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?
5. Criminal Law: Motions to Dismiss: Directed Verdict: Waiver: Convictions: Appeal and
Error. In a criminal trial, after a court overrules a defendant’s motion for a dismissal or a
directed verdict, the defendant waives any right to challenge the trial court’s ruling if the
defendant proceeds with trial and introduces evidence. But the defendant may challenge the
sufficiency of the evidence for the conviction.
6. Directed Verdict: Appeal and Error. When a defendant makes a motion at the close of the
State’s case in chief and again at the conclusion of all the evidence, it is proper to assign as error
that the defendant’s motion for directed verdict made at the conclusion of all the evidence should
have been sustained.
7. Criminal Law: Directed Verdict. In a criminal case, a court can direct a verdict only when
there is a complete failure of evidence to establish an essential element of the crime charged or
the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on
such evidence cannot be sustained. If there is any evidence which will sustain a finding for the
party against whom a motion for directed verdict is made, the case may not be decided as a
matter of law, and a verdict may not be directed.
8. Jury Instructions. In giving instructions to the jury, it is proper for the court to describe the
offense in the language of the statute.
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9. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court’s
refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered
instruction is a correct statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to give the tendered
instruction.
10. 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 pleadings and the evidence, there is no prejudicial error necessitating
reversal.
11. Jury Instructions. In instructing a jury, the trial court is not required to define language
commonly used and generally understood.
12. Sentences. When imposing a sentence, the sentencing judge should consider the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as
(7) the nature of the offense, and (8) the violence involved in the commission of the offense. The
sentencing court is not limited to any mathematically applied set of factors.
13. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the
sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life.
14. 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.
15. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
defendant must show that counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense.
16. ____: ____. To show deficient performance, a defendant must show that counsel’s
performance did not equal that of a lawyer with ordinary training and skill in criminal law.
17. ____: ____. To show prejudice, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding would have been different.
18. Effectiveness of Counsel: Presumptions: Appeal and Error. The entire ineffectiveness
analysis is viewed with a strong presumption that counsel’s actions were reasonable and that
even if found unreasonable, the error justifies setting aside the judgment only if there was
prejudice.
19. Effectiveness of Counsel: Proof. In an ineffective assistance of counsel claim, deficient
performance and prejudice can be addressed in either order. If it is more appropriate to dispose
of an ineffectiveness claim due to lack of sufficient prejudice, that course should be followed.
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HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, STACY, and KELCH, JJ.
CASSEL, J.
I. NATURE OF CASE
A statute1 enhances the penalty for third degree assault when it is committed because of
the victim’s association with a person of a certain sexual orientation. Gregory S. Duncan appeals
from a conviction and sentence pursuant to this statute. There are two principal issues. We first
consider whether the State introduced evidence sufficient to withstand Duncan’s renewed motion
for a directed verdict. It did. Second, we find no error in the district court’s refusal of Duncan’s
requested jury instruction defining “sexual orientation.” And finding no merit to Duncan’s other
assignments of excessive sentence and ineffective assistance of counsel, we affirm Duncan’s
conviction and sentence.
II. BACKGROUND
Duncan was convicted of third degree assault, discrimination based, for punching Ryan
Langenegger outside a restaurant in Omaha, Nebraska. Third degree assault, discrimination
based, is a Class IV felony punishable by a maximum of 5 years’ imprisonment and a $10,000
fine.2 He was sentenced to 12 to 18 months in prison and given credit for 53 days of time served.
The statute that provides enhanced penalties for discrimination based offenses provides,
in relevant part:
Any person who commits one or more of the following criminal offenses against
a person or a person’s property because of the person’s . . . sexual orientation . . . or
because of the person’s association with a person of a certain . . . sexual orientation . . .
shall be punished by the imposition of the next higher penalty classification than the
penalty classification prescribed for the criminal offense, unless such criminal offense is
already punishable as a Class IB felony or higher classification: . . . assault in the third
degree, section 28-310 . . . .3
At trial, Duncan admitted that he punched Langenegger but claimed that the punch was not
motivated by Langenegger’s association with a person of a certain sexual orientation. This is his
direct appeal.
1. STATE’S CASE IN CHIEF
The State presented testimony that before the assault, Langenegger attended a “drag
show” at a “gay bar” with two friends, Joshua Foo and Jacob Gellinger. Langenegger is
heterosexual, and Foo and Gellinger are homosexual. Langenegger was wearing a men’s suit,
Foo was wearing pants and a suit jacket over a women’s sequined top, and Gellinger was
wearing a dress, platform shoes, makeup, and a wig. Gellinger is a tall person, and the platform
1
Neb. Rev. Stat. § 28-111 (Cum. Supp. 2014).
2
Neb. Rev. Stat. § 28-310 (Reissue 2008); § 28-111; Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014).
3
§ 28-111.
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shoes made him appear around 6 feet 5 inches tall. When Gellinger is dressed in women’s
clothing, Gellinger “go[es] by Fendi Blu,” which is an “alter ego” or “drag persona.” Gellinger
was generally identified as “Fendi Blu” at trial, and we do the same in this opinion.
Around 2 a.m., Foo, Langenegger, and Fendi Blu left the bar together and went to a
restaurant. Fendi Blu was intoxicated, but Foo and Langenegger were not. While they were
sitting at the restaurant, Foo noticed a group of three men who were “kind of like joking” and
“kept looking over at our table and things.” Foo, Langenegger, and Fendi Blu did not know who
the men were at the time, but they were later identified at trial as Duncan, Joseph Adriano, and
Paul Larson. The men’s behavior made Foo feel “uneasy being there at the moment,” so he asked
Langenegger and Fendi Blu to leave.
While they waited for Langenegger to finish his food, Foo saw Adriano walk over to their
table. Foo testified that Adriano looked over to his friends and said, “‘Should I, should I?’” Foo
thought Adriano’s tone “wasn’t . . . very good,” and he told Langenegger and Fendi Blu, “‘We
need to go.’” Fendi Blu and Langenegger gathered their things, and as they were leaving, Foo
heard the men laughing and calling out derogatory names as they walked away, including the
word “‘fag.’” At trial, counsel for the State asked Foo whether “‘fag’” is “a derogatory word for
homosexuals,” and Foo responded, “Yes.”
Both groups exited the restaurant. Once outside, Foo helped put on Fendi Blu’s shoes,
and Duncan’s group stopped in front of Foo’s group. Foo testified that Adriano walked up to
Fendi Blu, looked over at Duncan and Larson, and said, “‘Should I?’” as they laughed behind
him. Duncan and Larson stood a few feet behind Adriano. Langenegger heard Adriano say,
“‘Faggot,’” and Foo heard someone say the word “‘queer.’” Langenegger and Foo both testified
that Fendi Blu then looked down and said, “‘I know. I’m just a boy in a dress,’” and Adriano
responded, “‘Yeah, it’s fucking disgusting.’”
Langenegger then “tried to calm down the situation,” saying, “‘Listen, we just want to go
home,’” and Adriano responded, “‘Come on, you fucking pussy.’” Langenegger began to state
again that they just wanted to go home, but before he could finish speaking, he was punched in
the face by Duncan. Langenegger and Foo testified that Langenegger did not make any
threatening gestures, raise his voice, or touch Adriano or anyone else during this exchange.
After the punch, Duncan, Adriano, and Larson walked away, and Foo and Langenegger
heard them laughing. Langenegger touched his face, and his hands came away covered with
blood. He had “blood coming from his nose, in between his eyes, coming down his chin.” Foo,
Langenegger, and Fendi Blu proceeded to Langenegger’s car, where Foo called the 911
emergency dispatch service and reported the incident. When the police arrived, Langenegger
decided not to file a report because he “didn’t think [Duncan, Adriano, and Larson] were going
to get caught.”
After speaking with the police, Foo and Langenegger drove Fendi Blu home and then
drove to Foo’s house. Foo took a photograph of Langenegger “to kind of document, like, what
happened,” and he posted the photograph on his personal “Facebook” page. He hoped that by
posting about the assault online, someone might identify the attacker.
The police communicated with Foo and Langenegger after the photograph was posted.
Langenegger made a formal report of the incident, and detectives identified Larson after
obtaining his credit card information from the restaurant. Through Larson, detectives identified
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Duncan and Adriano. A detective testified that when he arrested Duncan, Duncan “did not seem
to be [surprised] at all” that he was being arrested for a “hate crime.”
Adriano and Larson also testified during the State’s case in chief. Adriano testified that
he remembers drinking at several bars that night, but that he does not remember leaving the bars
or anything that occurred at the restaurant because he had a “blackout” from drinking. He said
that he does not recall using the word “faggot” and that he does not use that word because he has
close friends and family friends who are homosexuals. He also testified that he was not aware
until later that anyone was assaulted.
Larson testified that when they exited the restaurant, he and Duncan were a few feet
behind Adriano, and that he observed Adriano and Langenegger talking to each other, but could
not hear what they were saying. After Duncan punched Langenegger, Larson saw Langenegger
fall and get back up, and he also saw Adriano fall or stumble, but he did not see Langenegger
touch Adriano.
2. MOTION FOR DIRECTED VERDICT
After this evidence was adduced, the State rested and Duncan moved for a directed
verdict of acquittal on the charge of discrimination-based assault. He argued that the State had
not met its burden “to show that there was some evidence that [Duncan] specifically targeted or
selected [Langenegger] as a result or because he was associated with -- he was associated with
the gay people in this crowd.”
The court stated that it had researched the interpretation of “‘because of’” in other
jurisdictions and discovered that they take one of three approaches. It said that some jurisdictions
hold that sexual orientation must be the “sole reason” for the assault, some jurisdictions apply a
“‘but-for’ test,” and others have stated that the victim must have been “selected substantially
because of [his or her] association with a particular sexual orientation.” The court concluded that
a Nebraska court “would probably be in line with the substantial factor case law.” And it
overruled Duncan’s motion, explaining that although the State had not presented direct evidence
of Duncan’s making outward slurs, the testimony presented was sufficient to support an
inference of a discriminatory motive.
3. DUNCAN’S CASE IN CHIEF AND RENEWED MOTION
Duncan’s case in chief consisted of his own testimony. He testified that Langenegger
pushed Adriano and that he punched Langenegger to defend Adriano. He said he did not know or
consider the sexual orientation of Langenegger or anyone else that night. He admitted that he
was an arm’s length away when Adriano was face-to-face with Langenegger, but he claimed that
he did not hear what they said to one another.
Duncan also testified that he did not notice Foo’s group or stare at them and that he had
no idea that any homosexual people were in Foo’s group. He did not hear Adriano make any
slurs against homosexual people, and he does not remember seeing a man dressed as a woman in
the restaurant.
After Duncan testified, he renewed his motion for a directed verdict of acquittal. He
argued again that the evidence did not establish that he targeted Langenegger because of his
association with people of a certain sexual orientation. The court overruled the motion.
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III. ASSIGNMENTS OF ERROR
Duncan assigns, restated and consolidated, that the district court erred in (1) overruling
his motions for a directed verdict, (2) denying his requested jury instruction, and (3) imposing an
excessively harsh sentence. He also claims that he received ineffective assistance of counsel.
IV. STANDARD OF REVIEW
[1] Regardless of whether the evidence is direct, circumstantial, or a combination thereof,
and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the
evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal
conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will
be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and
construed most favorably to the State, is sufficient to support the conviction.4
[2] Whether a jury instruction is correct is a question of law, which an appellate court
independently decides.5
[3] An appellate court reviews criminal sentences for abuse of discretion, which occurs
when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.6
[4] Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law.7 In reviewing claims of ineffective assistance of counsel on direct
appeal, an appellate court decides only questions of law: Are the undisputed facts contained
within the record 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?8
V. ANALYSIS
1. DIRECTED VERDICT
(a) Waiver
Duncan assigns that the district court erred in overruling both his motion for a directed
verdict and his renewed motion for a directed verdict. In his assignments related to his motion
for a directed verdict, he argues that the court misinterpreted the phrase “because of” in the
enhancement statute and that it should have found that the State presented insufficient evidence
to support a conviction under that statute. In his assignment related to his renewed motion, he
4
State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003).
5
Warner v. Simmons, 288 Neb. 472, 849 N.W.2d 475 (2014).
6
State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).
7
State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
8
Id.-7-
argues again that the State presented insufficient evidence to support his conviction under the
enhancement statute.
[5] The State responds that Duncan waived any right to challenge the district court’s
ruling on either motion because he proceeded with the trial and presented evidence. In support of
its position, it cites State v. Seberger,9 where we stated the well-established rule that in a criminal
trial, after a court overrules a defendant’s motion for a dismissal or a directed verdict, the
defendant waives any right to challenge the trial court’s ruling if the defendant proceeds with
trial and introduces evidence, but the defendant may challenge the sufficiency of the evidence for
the conviction.
The State’s argument regarding Duncan’s first motion for a directed verdict is correct.
Because Duncan proceeded with the trial and presented evidence, he waived any right to
challenge the district court’s ruling on that motion.
[6] However, the State incorrectly argues that the waiver rule applies to Duncan’s
renewed motion. We said in State v. Severin10 that
[w]hen a defendant makes a motion at the close of the State’s case in chief and again at
the conclusion of all the evidence, it is proper to assign as error that the defendant’s
motion for directed verdict made at the conclusion of all the evidence should have been
sustained.”
Thus, it is proper for us to address whether the district court should have sustained Duncan’s
renewed motion for a directed verdict.11 We clarify that this is the correct rule, but in the instant
case, it makes little difference, because in Duncan’s renewed motion, he complained only that
the evidence was insufficient to support his conviction.
(b) Renewed Motion for Directed Verdict
Duncan claims that the district court should have granted his renewed motion for a
directed verdict because the evidence was insufficient to support a conviction under the
enhancement statute. In order to obtain an enhanced penalty, the State was required to prove that
Duncan assaulted Langenegger because of Langenegger’s association with a person of a certain
sexual orientation.12 Essentially, Duncan argues that the State did not meet its burden because it
did not present direct evidence that he was aware that Foo and Fendi Blu were homosexual.
[7] In a criminal case, a court can direct a verdict only when there is a complete failure of
evidence to establish an essential element of the crime charged or the evidence is so doubtful in
character, lacking probative value, that a finding of guilt based on such evidence cannot be
sustained.13 If there is any evidence which will sustain a finding for the party against whom a
9
State v. Seberger, 284 Neb. 40, 815 N.W.2d 910 (2012).
10
State v. Severin, 250 Neb. 841, 849, 553 N.W.2d 452, 457 (1996).
11
See State v. Thomas, 238 Neb. 4, 468 N.W.2d 607 (1991).
12
See § 28-111.
13
State v. Cook, supra note 4.
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motion for directed verdict is made, the case may not be decided as a matter of law, and a verdict
may not be directed.14
To determine whether there was a complete failure of evidence to establish that Duncan
assaulted Langenegger because of his association with a person of a certain sexual orientation,
we first consider the meaning of the phrase “because of.” We have discussed the phrase on two
previous occasions. In Wymore v. Farmers Mut. Ins. Co. of Nebraska,15 we turned to the
dictionary and concluded that in the context of an insurance contract, “because of” meant “‘by
reason of: on account of.’” Similarly, in City of Gordon v. Ruse,16 we concluded that in the
context of a statute requiring reimbursement of expenses incurred “because of” condemnation
proceedings, “[t]he plain, ordinary, or common meaning of the phrase ‘because of’ is ‘as a result
of’ or ‘in connection with.’” Thus, the phrase “because of” in the enhancement statute requires
the State to prove some causal connection between the victim’s association with a person of a
certain sexual orientation and the assault.17
We have often discussed causation in criminal cases. We have said that criminal conduct
is a cause of an event if the event in question would not have occurred but for that conduct;
conversely, conduct is not a cause of an event if that event would have occurred without such
conduct.18
But this is the first time that we must apply the concept to a defendant’s motive rather
than his conduct. This concept of causation is ordinarily used to determine whether a defendant’s
conduct is the cause of another’s injury or loss. Under the language of the statute at issue here,
we must adapt it to the context of a defendant’s motive as a cause of his behavior.19 Applying
our causation principles by analogy, the phrase “because of” in the enhancement statute required
the State to prove that Duncan would not have assaulted Langenegger but for his association
with a person of certain sexual orientation. Under our highly deferential standard of review, the
State did so.
The evidence was sufficient to prevent a directed verdict on the enhancement charge.
First, although Duncan claimed that he did not know that Foo and Fendi Blu were homosexual,
the State introduced evidence sufficient for a jury to infer that he did. The State presented
testimony that Duncan, Adriano, and Larson were sitting together at the restaurant when Foo
heard members of Duncan’s group call out derogatory names for homosexuals as he,
Langenegger, and Fendi Blu exited the restaurant. A rational jury could infer that even if Duncan
14
Id.15
Wymore v. Farmers Mut. Ins. Co. of Nebraska, 182 Neb. 763, 764, 157 N.W.2d 194, 195 (1968)
(quoting Webster’s Third New International Dictionary, Unabridged 194 (1961)).
16
City of Gordon v. Ruse, 268 Neb. 686, 691, 687 N.W.2d 182, 186 (2004).
17
See, In re M.S., 10 Cal. 4th 698, 896 P.2d 1365, 42 Cal. Rptr. 2d 355 (1995) (interpreting “because of”
to require evidence of causal connection between victim’s status and act); State v. Hennings, 791
N.W.2d 828 (Iowa 2010) (same); Matter of Welfare of S.M.J., 556 N.W.2d 4 (Minn. App. 1996)
(same); State v. Plowman, 314 Or. 157, 838 P.2d 558 (1992) (same).
18
State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005).
19
See In re M.S., supra note 17 (Kennard, J., concurring).
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did not say the derogatory names himself, he heard them. Additionally, while Duncan stood
close enough to lunge and punch Langenegger outside the restaurant, Langenegger heard
Adriano say, “‘Faggot,’” and Foo heard someone say the word “‘queer.’” A rational jury could
find that Duncan did in fact hear those words and that he therefore believed that Langenegger
was with people who were homosexual.
Second, the State presented evidence to show that Langenegger’s association with
homosexual people was the reason for the assault. The State’s witnesses testified that there was
no other apparent motivation. Langenegger testified that he had not spoken to Duncan before the
assault, and Foo, Langenegger, and Larson all testified that Langenegger did not touch Adriano
or anyone else in Duncan’s group. A rational jury could infer from this evidence that Duncan’s
motivation was his belief that Langenegger was associated with homosexual people. Therefore,
the district court properly overruled Duncan’s renewed motion for a directed verdict.
2. JURY INSTRUCTION
Duncan argues that the district court should have accepted his requested instruction,
which provided: “‘Sexual orientation’ means heterosexuality, homosexuality, or bisexuality.”
Nebraska statutes do not define the term. The court declined to give the instruction, reasoning
that “[p]articularly in light of the facts of this case,” which involved only “homosexual and
heterosexual” people, the term sexual orientation was a matter of common understanding. It
instructed the jury that in order to find Duncan guilty of third degree assault, discrimination
based, it had to find:
1. That [Duncan], on or about October 27, 2013, did intentionally or knowingly
cause bodily injury to . . . Langenegger;
2. [Duncan] did so because of . . . Langenegger’s association with a person of a
certain sexual orientation;
3. That [Duncan] did so in Douglas County, Nebraska; and
4. That [Duncan] did not act in defense of another.
[8-10] In giving instructions to the jury, it is proper for the court to describe the offense in
the language of the statute.20 To establish reversible error from a court’s refusal to give a
requested instruction, an appellant has the burden to show that (1) the tendered instruction is a
correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the
appellant was prejudiced by the court’s refusal to give the tendered instruction.21 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 prejudicial error necessitating reversal.22
20
State v. Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015).
21
Id.22
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
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[11] Jurors are accepted because they are men and women of common sense and have a
common understanding of words ordinarily used in our language.23 In instructing a jury, the trial
court is not required to define language commonly used and generally understood.24
Under the facts of the instant case, the term “sexual orientation” was a word commonly
used and generally understood. The term was used throughout the jury selection process and the
trial, and there is no indication in the record that it produced confusion. For instance, during jury
selection, counsel for the State told the jury: “I’m interested in knowing your thoughts regarding
this discrimination-based law, as well as sexual orientation in general.” He then asked if any
juror either identified as “gay, lesbian, bisexual, or transgendered or [had] a close friend or
family member who identifies themselves as such,” and prospective jurors responded. No
prospective juror asked what any of those terms meant. Furthermore, when the State’s counsel
asked whether “anyone here that does not personally know someone who identifies themsel[ves]
as lesbian, gay, bisexual, or transgendered,” no prospective juror responded that he or she did
not. Clearly, the prospective jurors were familiar with the concept of sexual orientation.
Additionally, counsel for the State asked whether “anyone believe[d] that
discrimination-based laws such as this should not include sexual orientation” and whether
anyone felt “any type of conflict inside them about their ability to be fair and impartial in a case
involving sexual orientation.” Again, no juror asked him to define or explain the term. And
Duncan’s counsel also used the term “sexual orientation” with no apparent problems. He told the
prospective jurors: “So what we’re talking about here is a case involving an assault, an assault on
somebody who was associated with a gay person or supposed gay person. Really, the term is
sexual -- sexual orientation. Gay is kind of a term we’re loosely using here.”
This is not a case where the court failed to instruct the jury on a legal concept with a
particular meaning in the law.25 The district court did not need to define “sexual orientation,”
because the term was a matter of common understanding under the facts of this case. Even if we
assume that the proposed instruction was a statement of law and that it was a correct one,
Duncan has shown no prejudice from the court’s refusal of the instruction. This assignment of
error is without merit.
3. EXCESSIVE SENTENCE
Duncan argues that the sentence of 12 to 18 months in prison was excessive. The 12- to
18-month sentence was well within the statutory limits for third degree assault, discrimination
based, which is a Class IV felony and was at that time punishable by a maximum of 5 years’
23
Johnson v. Batteen, 144 Neb. 384, 13 N.W.2d 625 (1944).
24
Omaha Nat. Bank v. Manufacturers Life Ins. Co., 213 Neb. 873, 332 N.W.2d 196 (1983). See, also,
Johnson v. Griepenstroh, 150 Neb. 126, 33 N.W.2d 549 (1948) (concluding no need to define “right of
way”); Suiter v. Epperson, 6 Neb. App. 83, 571 N.W.2d 92 (1997) (concluding no need to define
“lookout” and “control”).
25
See, e.g., Danielsen v. Eickhoff, 159 Neb. 374, 66 N.W.2d 913 (1954) (failing to define “proximate
cause”).
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imprisonment and a $10,000 fine.26 An appellate court will not disturb sentences that are within
statutory limits, unless the district court abused its discretion in establishing the sentences.27
[12,13] When imposing a sentence, the sentencing judge should consider the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as
(7) the nature of the offense, and (8) the violence involved in the commission of the offense.28
The sentencing court is not limited to any mathematically applied set of factors.29 The
appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances
surrounding the defendant’s life.30
Duncan contends that the sentence was an abuse of discretion, because the court made a
statement at trial that “it was a ‘close call’ that there was even enough there to go to the jury on
the enhancement and make this more than a misdemeanor crime.”31 He notes that he maintained
“even in apologizing to the court at sentencing that ‘[i]n absolutely no way was it intentionally to
harm someone because of [his or her] sexual orientation.’”32 And he claims that his “criminal
convictions record was minimal.”33
At sentencing, the district court stated that it considered Duncan’s age, experience,
background, criminal history, the type of offense, and his motivation for the offense. It noted that
Duncan has a criminal history, including a prior felony arrest for possession with intent to deliver
a controlled substance. It also explained that the presentence investigation report was incomplete
because Duncan failed to participate, even though they “[c]ontacted [him] on a number of
occasions.” And it observed that because Duncan did not appear for sentencing, the court had to
issue a warrant. The court stated that “those types of behaviors” showed that Duncan has a
“disregard for court orders.”
The court also considered the gravity of the offense. It explained that the Legislature has
determined that crimes motivated by bias should be punished differently than those that are not
and that “discrimination-motivated crimes do have a different impact on . . . our social fabric.”
But it also noted that Duncan’s crime “did not involve significant violence.”
The district court’s statements show that it considered appropriate factors in fashioning
Duncan’s sentence. What Duncan is really arguing is that there was insufficient evidence to
convict him under the enhancement statute. We have already concluded that the evidence was
sufficient, and the jury found that Duncan targeted Langenegger because of his association with
26
§§ 28-310, 28-111, and 28-105.
27
State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015).
28
Id.29
Id.30
Id.31
Brief for appellant at 38.
32
Id.33
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people of a certain sexual orientation. The district court did not abuse its discretion in imposing a
sentence of 12 to 18 months’ imprisonment.
4. INEFFECTIVE ASSISTANCE
Duncan contends that he received ineffective assistance of counsel. He complains that his
counsel insinuated that Foo manipulated a photograph when he should have known that Foo did
not do so and that he pursued an “inconsistent and arguably illogical or demeaning theory of
defense,” which prejudiced him.34
[14] The fact that an ineffective assistance of counsel claim is raised on direct appeal
does not necessarily mean that it can be resolved.35 The determining factor is whether the record
is sufficient to adequately review the question.36 We conclude that the record is sufficient to
address all of Duncan’s ineffective assistance claims.
[15-17] To prevail on a claim of ineffective assistance of counsel under Strickland v.
Washington,37 the defendant must show that counsel’s performance was deficient and that this
deficient performance actually prejudiced his or her defense.38 To show deficient performance, a
defendant must show that counsel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law.39 To show prejudice, the defendant must demonstrate a
reasonable probability that but for counsel’s deficient performance, the result of the proceeding
would have been different.40
[18,19] The entire ineffectiveness analysis is viewed with a strong presumption that
counsel’s actions were reasonable and that even if found unreasonable, the error justifies setting
aside the judgment only if there was prejudice.41 Deficient performance and prejudice can be
addressed in either order.42 If it is more appropriate to dispose of an ineffectiveness claim due to
lack of sufficient prejudice, that course should be followed.43
With these principles in mind, we examine each error that Duncan alleges his counsel
committed. Duncan claims that his counsel was ineffective because he (1) asked Foo whether he
manipulated a photograph, (2) introduced a “‘sex on the sidewalk’” theory, and (3) made
“demeaning and disparaging” comments about the victim and the State’s witnesses during his
34
Id. at 33.
35
State v. Watt, supra note 22.
36
Id.37
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
38
State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
39
State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).
40
Id.41
State v. Watt, supra note 22.
42
Id.43
Id.- 13 -
closing argument. The record conclusively shows that Duncan suffered no prejudice from any of
these alleged deficiencies.
(a) Photograph
During Duncan’s counsel’s cross-examination of Foo, he insinuated that Foo used his
photography “morphing” skills to manipulate the photograph of Langenegger that Foo then
posted on his “Facebook” page. Foo denied manipulating the photograph, and the police officer
who spoke to Langenegger that night later testified that the photograph showed Langenegger
“[a]lmost exactly” as he appeared when he spoke to him. Duncan argues that his defense was
prejudiced, because the State received “an advantage or point with the jury” when it rebutted the
“morphing” theory through the officer’s testimony.44
We conclude that there is no reasonable probability that but for Duncan’s counsel’s
questions regarding “morphing,” Duncan would have been acquitted. Duncan admitted that he
assaulted Langenegger and only disputed the reason for the assault. The photograph of
Langenegger had no bearing on Duncan’s motivation for the assault. Therefore, the record
establishes that this instance of counsel’s conduct was not prejudicial to Duncan.
(b) “Sex on a Sidewalk” Theory
Duncan complains that his attorney attempted to introduce a “‘sex on a sidewalk’”
theory45 at trial. Duncan claims this theory was “unsupported” and “like the defense was
grasping at straws or throwing darts at a board to see what sticks so to speak when taken with the
morphing and other things.”46 During the trial, Duncan’s counsel asked Adriano, Langenegger,
and Foo whether they saw what looked like sex on the sidewalk between Foo and Fendi Blu
when Foo helped put on Fendi Blu’s shoes, and they all denied that it looked that way.
Once again, there is no reasonable probability that but for this conduct, Duncan would
have been acquitted. Duncan’s counsel’s questions about “sex on a sidewalk” apparently related
to Adriano’s reason for engaging in an altercation with Langenegger, which had no bearing on
Duncan’s defense. Duncan’s defense hinged on his claim that he had no idea why Adriano was
upset and that he never heard Adriano say anything at all to Langenegger. Therefore, this claim
is also refuted by the record.
(c) Demeaning Statements
Duncan points to nine statements made by his counsel during his closing argument that
were “demeaning and disparaging to the victim and the State’s witnesses.”47 He argues that his
counsel’s “illogical and/or demeaning theory of defense and characterization of the victim and
witnesses in this case” prejudiced his defense.48 The statements he complains of include the
44
Brief for appellant at 34.
45
Id. at 35.
46
Id.
47
Id.
48
Id. at 37.
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following: “[C]onsider the witnesses they are relying on. The man in drag, another gay man that
lived a lie until he was 28 [when he told his parents he is homosexual], a person who has a
political agenda”; and, “You got -- their witnesses all were involved and they’ve got gay
agendas.”
Whether the State’s witnesses had “gay agendas” had no bearing on Duncan’s motivation
for the assault, which was the issue in this case. Obviously, the jury did not believe Duncan’s
testimony that the assault had nothing to do with anyone’s sexual orientation. We conclude that
there is no reasonable probability that but for Duncan’s counsel’s disparaging statements,
Duncan would have been acquitted. The record conclusively refutes that Duncan was prejudiced
by his counsel’s conduct.
VI. CONCLUSION
We conclude that there was sufficient evidence to prevent a directed verdict on the
enhancement element. We also conclude that the district court did not err in denying Duncan’s
requested jury instruction, because “sexual orientation” was a matter of common understanding
under the facts of this case. We conclude further that the district court’s sentence was not an
abuse of discretion and that Duncan did not receive ineffective assistance of counsel. We
therefore affirm Duncan’s conviction and sentence.
AFFIRMED.
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