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

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 12:08 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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Nebraska Supreme Court Advance Sheets
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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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
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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306 Nebraska Reports
STATE v. PRICE
Cite as 306 Neb. 38
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 Nebraska Reports
STATE v. PRICE
Cite as 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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STATE v. PRICE
Cite as 306 Neb. 38
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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STATE v. PRICE
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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, 210 Neb.
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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. Id.
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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.