State v. Brooks ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/07/2016 12:12 PM CDT
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. BROOKS
Cite as 23 Neb. Ct. App. 560
State of Nebraska, appellee, v.
Clinton Brooks, appellant.
___ N.W.2d ___
Filed February 2, 2016. No. A-15-017.
1. Trial: Evidence: Appeal and Error. An appellate court reviews the trial
court’s conclusions with regard to evidentiary foundation for an abuse
of discretion.
2. Rules of Evidence: Witnesses. Neb. Evid. R. 608, Neb. Rev. Stat.
§ 27-608 (Reissue 2008), allows the credibility of a witness to be
attacked by evidence in the form of reputation or opinion, but such
evidence may refer only to the witness’ character for truthfulness or
untruthfulness.
3. Trial: Witnesses: Proof. The reputation of a witness for truthfulness or
untruthfulness must be proved by a witness qualified by an opportunity
to obtain knowledge of it.
4. Evidence: Words and Phrases. Evidence is relevant when it has any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would
be without the evidence.
5. Trial: Evidence: Appeal and Error. A trial court’s decision regard-
ing relevancy determinations will not be reversed absent an abuse of
discretion.
6. Rules of Evidence: Words and Phrases. Neb. Evid. R. 404(1)(a), Neb.
Rev. Stat. § 27-404(1)(a) (Cum. Supp. 2014), allows a criminal defend­
ant to offer evidence of a pertinent trait of his or her character. In a
criminal action, pertinent traits are those involved in the crime on trial,
such as honesty in a theft case.
7. Evidence: Other Acts. Evidence of a defendant’s prior bad acts is not
admissible to prove that the defendant acted in conformity therewith on
the occasion in question.
8. Trial: Jury Instructions: Pleadings: Evidence: Appeal and Error.
Failure to object to a jury instruction after it has been submitted to
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counsel for review precludes raising an objection on appeal absent
plain error indicative of a probable miscarriage of justice. Nonetheless,
whether requested to do so or not, a trial court has the duty to instruct
the jury on issues presented by the pleadings and the evidence. Because
of this duty, the trial court, on its own motion, must correctly instruct on
the law.
9. Criminal Law: Evidence: New Trial: Appeal and Error. Upon finding
error in a criminal trial, the reviewing court must determine whether all
evidence admitted by the trial court was sufficient to sustain the convic-
tion before remanding for a new trial.
10. Double Jeopardy: Evidence: New Trial: Appeal and Error. The
Double Jeopardy Clause does not forbid a retrial so long as the sum
of the evidence admitted by a trial court would have been sufficient to
sustain a guilty verdict.
11. Evidence: New Trial: Appeal and Error. When considering the suffi-
ciency of the evidence in determining whether to remand for a new trial
or to dismiss, an appellate court must consider all the evidence admitted
by the trial court irrespective of the correctness of that admission.
12. Appeal and Error. An appellate court may, at its discretion, discuss
issues unnecessary to the disposition of an appeal where those issues are
likely to recur during further proceedings.
13. Evidence: Other Acts. Prior conduct that is inextricably intertwined
with the charged crime is admissible to complete the story or provide a
total picture of the charged crime.
14. Sentences: Words and Phrases. Allocution is an unsworn statement
from a convicted defendant to the sentencing judge in which the
defend­ ant can ask for mercy, explain his or her conduct, apologize
for the crime, or say anything else in an effort to lessen the impend-
ing sentence.
15. Sentences: Parties. The right to allocution is personal to the defendant.
16. Sentences: Evidence. At a sentencing hearing, evidence may be pre-
sented as to any matter that the court deems relevant to the sentence.
17. ____: ____. A sentencing court has broad discretion as to the source and
type of evidence and information which may be used in determining the
kind and extent of the punishment to be imposed.
18. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s age, mentality, education and experience, social
and cultural background, past criminal record, and motivation for the
offense, as well as the nature of the offense and the violence involved in
the commission of the crime.
19. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
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must determine whether the 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.
20. New Trial. A new trial can be granted on grounds materially affecting
the substantial rights of the defendant.
21. Motions for New Trial: Appeal and Error. A motion for new trial is
addressed to the discretion of the trial court, whose decision will be
upheld in the absence of an abuse of discretion.
22. Effectiveness of Counsel. In order to prevail on a claim of ineffective
assistance of counsel, a defendant must show that his or her coun-
sel’s performance was deficient and that he or she was prejudiced by
such deficiency.
23. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. Ineffective assistance of counsel claims are generally addressed
through a postconviction action. This is frequently because the record is
insufficient to review the issue on direct appeal.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed in part, and in part reversed and
remanded for a new trial.
Joe Nigro, Lancaster County Public Defender, and Yohance
Christie for appellant.
Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
Moore, Chief Judge, and Irwin and Inbody, Judges.
Irwin, Judge.
I. INTRODUCTION
Clinton Brooks appeals his convictions and sentences for
theft by deception and the unauthorized practice of law. On
appeal, Brooks argues that the district court erred in failing to
allow testimony regarding a witness’ reputation for untruth-
fulness, that the district court erred when it did not allow the
testimony of four character witnesses on Brooks’ behalf, that
there was insufficient evidence to sustain his conviction for
the unauthorized practice of law, that the district court pro-
vided erroneous instructions to the jury on the unauthorized
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practice of law, that there was insufficient evidence to sustain
his conviction for theft by deception, that the district court vio-
lated Brooks’ right to allocution, that the district court consid-
ered improper evidence at the sentencing hearing, that Brooks
received excessive sentences, that the district court erred in not
granting Brooks’ motion for a new trial, and that Brooks’ trial
counsel was ineffective.
Upon our review, we find that the district court erred in
providing incorrect instructions to the jury with respect to the
statute of limitations for the unauthorized practice of law. We
reverse, and remand for a new trial on the unauthorized prac-
tice of law conviction. We find no merit to Brooks’ other asser-
tions on appeal. Accordingly, we affirm Brooks’ conviction and
sentence for theft by deception.
II. BACKGROUND
On September 26, 2013, Brooks was charged by informa-
tion with theft by deception involving $500 to $1,500. On
December 11, the State amended the information to include a
second charge of the unauthorized practice of law.
The events giving rise to this case began in the fall of 2011
in Lincoln, Nebraska, when Joshua Jordan Fitzgerald began
contemplating dissolving his marriage. At the time, Joshua was
19 years old and had an infant son with his wife. Joshua and
his mother, Sharon Fitzgerald, began looking for an attorney
to help Joshua obtain a divorce and gain custody of his son.
Despite meeting with two or three attorneys for consultations,
Joshua and Sharon did not retain an attorney because they
could not afford the fees.
While Joshua and Sharon were looking for an attorney,
Sharon became aware that Brooks offered assistance to people
with their legal problems. Sharon knew Brooks because he
often came to her place of employment, George’s Auto Sales,
a car dealership and garage. Brooks was not and had never
been an attorney licensed by the State of Nebraska. Brooks
operated a business named “P.U.R.G.E., INC, People Utilizing
Resources Gaining Education” (P.U.R.G.E.). P.U.R.G.E.
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purported to help low-income individuals proceed pro se
through the legal system by providing research assistance
and guidance.
According to Sharon, Brooks offered to help Joshua with his
divorce. Joshua and Sharon knew Brooks was not an attorney,
but they hired Brooks because he offered to handle the paper-
work for them for $1,500. On December 8, 2011, Sharon paid
Brooks $750. Between December 2011 and April 2012, Joshua
paid Brooks an additional $750 in $100 installments every
2 weeks.
On December 15, 2011, a complaint for dissolution of mar-
riage listing Joshua as the plaintiff was filed in the district
court for Lancaster County. A motion for ex parte order for
temporary custody and a motion for leave to proceed in forma
pauperis were also filed on Joshua’s behalf. Joshua and Sharon,
as well as Brooks, dispute whether Brooks drafted and filed
these pleadings or whether Joshua and Sharon did.
On January 6, 2012, Joshua, Sharon, Joshua’s father, and
Brooks went to the Lancaster County District Court for a
hearing. Brooks sat in the back of the courtroom. The hearing
did not take place, because Joshua’s wife had continued the
proceedings. It later became apparent that Joshua’s wife had
filed for dissolution of marriage before Joshua had and that
the January 6 hearing was for the case involving the wife’s
complaint for dissolution of marriage, not Joshua’s. The wife’s
attorney had continued the hearing because Joshua had not yet
been served. Although it is not entirely clear from the record, it
appears that Joshua’s complaint for dissolution of marriage was
eventually returned to him due to the fact that Joshua’s wife
had already filed a complaint.
On January 13, 2012, there was another hearing in the disso-
lution of marriage case filed by Joshua’s wife. At this hearing,
Joshua and his wife presented evidence on temporary custody.
The judge took the matter under advisement. On February 13,
the court issued a written order granting temporary custody to
Joshua’s wife.
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STATE v. BROOKS
Cite as 23 Neb. Ct. App. 560
On March 5, 2012, a notice of appeal from the temporary
custody ruling was filed on Joshua’s behalf. The notice of
appeal was accompanied by a motion to proceed on appeal
in forma pauperis. On March 8, a motion to reconsider the
temporary custody ruling was filed in the district court. Joshua
and Sharon, as well as Brooks, dispute whether Brooks drafted
and filed the appeal and motion to reconsider or whether
Joshua and Sharon did. On April 13, the district court denied
the motion for reconsideration, indicating it no longer retained
jurisdiction over the case because Joshua had filed an appeal.
Around June 4, Joshua received a letter dismissing the appeal.
Joshua eventually hired an attorney in September 2012.
The attorney Joshua retained learned about Brooks’ actions
in the case, and the attorney’s law firm notified the Nebraska
State Bar Association, which referred the case involving Brooks
to the Lancaster County Attorney. Brooks was consequently
charged with theft by deception and the unauthorized practice
of law.
A trial on the theft by deception and the unauthorized prac-
tice of law charges against Brooks was held from October 14
to 17, 2014. At the trial, Joshua testified that Sharon had first
arranged for Joshua to meet with Brooks in early December
2011. At their first meeting, Brooks said he could “do the
paperwork” for Joshua’s divorce and custody case. Joshua
testified that Brooks drafted and gave Joshua the completed
complaint for dissolution of marriage and motion for ex parte
order for temporary custody. According to Joshua, he signed
the pleadings and returned them to Brooks. Joshua also testi-
fied that Brooks prepared the notice of appeal and the motion
to reconsider. Joshua testified that he never personally filed
any pleadings with the district court.
According to Joshua, after he received notice that the appeal
had been dismissed, he called Brooks to make an appoint-
ment. Joshua testified that he called Brooks in “mid June to
late June” and met with Brooks thereafter. At this meeting,
Joshua and Brooks discussed “continuing the case.” Brooks
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advised Joshua to read some books “so [he] could better repre-
sent [him]self.” Joshua testified that he had given up hope on
Brooks, but that during the meeting, Brooks indicated he would
continue to work on the case. Joshua testified that “the basic
plan was just to do appeals.”
Sharon also testified at the trial. Sharon testified that when
she paid Brooks the $750 on December 8, 2011, she relied
on his statement that he was a paralegal and that he would
“handle all of the paperwork.” Sharon testified she did not
draft the complaint for dissolution of marriage, the motion
for ex parte order for temporary custody, the motion for leave
to proceed in forma pauperis, or the notice of appeal. Sharon
also testified that she never filed any pleadings with the clerk
of the court.
Sharon testified that after Joshua’s appeal was dismissed,
she also contacted and met with Brooks, separately from
Joshua. According to Sharon, she first spoke with Brooks by
telephone sometime after July 15, 2012. During this telephone
conversation, Sharon expressed her frustration with Brooks and
with how the case had proceeded. Sharon testified that during
the telephone conversation, Brooks said “[they] would continue
and get more paperwork filed.”
Sharon testified she also met with Brooks in person after
their telephone conversation. During the meeting, Sharon and
Brooks discussed “[t]he paperwork that needed to be con-
tinued” and “which document [Brooks] wanted to file next.”
Sharon testified that she did not know what Brooks wanted
to file, but stated, “I just know that there [were] more papers
to file.”
Brooks testified in his own defense. According to Brooks,
he never claimed to be an attorney or a paralegal in his inter-
actions with Joshua and Sharon. Brooks testified that he told
Joshua and Sharon he could not represent them in court or file
documents for them. Brooks’ testimony was that he offered to
help “navigate [Joshua and Sharon] through the judicial sys-
tem.” Brooks testified that he gave Joshua and Sharon advice
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on styling the pleadings, but that he never drafted or filed any
of the pleadings himself. According to Brooks, he advised
Joshua and Sharon not to appeal the temporary custody ruling
because it was not a final order. Brooks testified that he did
not draft the motion to reconsider, but that he did review it and
advised Sharon to make some changes to the motion before
filing it.
After the trial, the jury found Brooks guilty of theft by
deception and the unauthorized practice of law. The court sen-
tenced Brooks to 15 to 35 months’ imprisonment on the theft
by deception conviction and 3 to 3 months’ imprisonment on
the unauthorized practice of law conviction, to be served con-
secutively. Brooks appeals from his convictions and sentences.
Additional facts will be discussed, as necessary, in the analysis
section of this opinion.
III. ASSIGNMENTS OF ERROR
On appeal, Brooks assigns numerous errors. Restated and
renumbered, those assigned errors are that (1) the district court
erred in failing to allow testimony regarding Sharon’s reputa-
tion for untruthfulness; (2) the district court erred when it did
not allow four witnesses to testify about their prior positive
interactions with Brooks nor to testify that Brooks never told
them he was a paralegal; (3) there was insufficient evidence
to sustain Brooks’ conviction for the unauthorized practice of
law because the evidence the State presented to support the
conviction fell outside the statute of limitations; (4) the district
court erred when it provided a jury instruction that allowed the
jury to consider evidence outside the statute of limitations on
the unauthorized practice of law charge; (5) there was insuf-
ficient evidence to sustain Brooks’ conviction for theft by
deception; (6) the district court violated Brooks’ right to allo-
cution when it refused to allow Brooks’ wife to speak at the
sentencing hearing; (7) the district court abused its discretion
because when sentencing Brooks, it considered three letters
from attorneys regarding Brooks’ actions; (8) the sentences
Brooks received were excessive; (9) the district court erred in
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not granting Brooks’ motion for new trial; and (10) Brooks’
trial counsel was ineffective.
IV. ANALYSIS
1. Testimony R egarding Sharon’s
R eputation for Untruthfulness
Brooks argues the district court erred when it excluded the
testimony of one of Brooks’ witnesses, Christine Johnson, as
to Sharon’s reputation for untruthfulness. Brooks argues that
Johnson’s testimony was admissible under Neb. Evid. R. 608,
Neb. Rev. Stat. § 27-608 (Reissue 2008). Brooks failed to lay
the proper foundation for the admission of Johnson’s testimony
regarding Sharon’s untruthfulness. We find this assertion to be
without merit.
[1-3] An appellate court reviews the trial court’s conclu-
sions with regard to evidentiary foundation for an abuse of
discretion. State v. Richardson, 285 Neb. 847, 830 N.W.2d
183 (2013). Rule 608 allows the credibility of a witness to
be attacked by evidence in the form of reputation or opinion,
but such evidence may refer only to the witness’ character for
truthfulness or untruthfulness. State v. Eldred, 5 Neb. Ct. App. 424,
559 N.W.2d 519 (1997). The reputation of a witness for truth-
fulness or untruthfulness must be proved by a witness quali-
fied by an opportunity to obtain knowledge of it. Id. Phrased
another way, testimony regarding a witness’ reputation for
truthfulness or untruthfulness is admissible only after proper
foundation has been laid. See id.
At the trial, Brooks called Johnson to the stand. Johnson tes-
tified that she worked at George’s Auto Sales with Sharon and
had known Sharon since 2011. According to Johnson, she had
contact with Sharon “[o]n the days that [Sharon] would work.”
Johnson also testified that she had come into contact with other
people who worked with Sharon. Brooks’ attorney then asked,
“As a result of your working with [Sharon], do you have an
opinion as to her reputation for truthfulness and veracity in the
work community?” Johnson indicated she did have an opinion
as to Sharon’s reputation for truthfulness. Brooks’ attorney
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asked whether Johnson’s opinion of Sharon’s reputation was
“good or bad,” and the State objected on relevance grounds.
The court sustained the objection “on foundation.”
After the court sustained the objection, there was a sidebar
with both Brooks’ attorney and the prosecutor. The court elabo-
rated that foundation was lacking because Johnson “ha[d] not
testified as to [Sharon’s] reputation in the community.” The
court stated, “Now, maybe she has lied to this witness on an
occasion, again, I’m not sure that that’s relevant. But [Johnson]
certainly has not laid the foundation to show that Sharon . . .
has a character of not being honest.”
After the sidebar, Brooks’ attorney had the following
exchange with Johnson:
[Brooks’ attorney:] As a result of working in the same
community as [Sharon], have you had an opportunity to
come to an understanding after interacting with other
individuals in the working area as to what the reputation
of Sharon . . . is for truth and veracity in that community?
Yes or no.
[Johnson:] So are you asking me do I have an opinion
about her truth and veracity or what is my opinion?
Q. Do you have an opinion as to what her reputation is
in the community.
A. Yes. I do, yes, sir.
Q. For truth and veracity?
A. Yes, sir, I do.
Q. And is that good or bad?
[The State]: I’m going to object —
[Johnson]: Bad.
The court sustained the State’s objection and ordered the
jury to disregard whatever part of Johnson’s answer it heard.
Following the second sustained objection to Johnson’s testi-
mony, Brooks’ attorney questioned Johnson as follows:
Q. And did you become aware of [Sharon’s] reputation
in the work community by interaction with other mem-
bers of the work community at George’s Auto [Sales]?
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A. Yes. Well, I mean, and myself, too. I’m included,
correct?
Q. Right.
And you did that by listening to other co-workers
in that community and speaking to other co-workers in
that community?
A. Yes, that and my own interactions.
Q. Okay. And is that what you based your opinion on?
It is the fact that you’ve talked to other people and heard
other people —
A. Some of it, yes.
Q. Okay.
A. And some of my own interactions.
Q. Okay. And you based your opinion that you
expressed on those factors as well; is that correct?
A. Yes.
....
Q. . . . Based upon factors and things that we dis-
cussed, is her reputation for truth and veracity in your
community good or bad?
After this exchange, the State again objected, on founda-
tion and relevance grounds. The court sustained the objection.
Johnson was excused as a witness.
As a preliminary matter, we note that Brooks causes con-
fusion by assigning as error the district court’s exclusion of
Johnson’s “reputation or opinion evidence as to [Sharon’s]
untruthfulness.” Brief for appellant at 4 (emphasis supplied).
We conclude and the record reflects, however, that Brooks’
trial attorney was attempting to elicit only reputation testi-
mony, not opinion testimony, from Johnson. It is true that
Brooks’ attorney used the word “opinion” when he asked
Johnson for her “opinion as to [Sharon’s] reputation for truth-
fulness and veracity.” However, when Johnson asked, “So are
you asking me do I have an opinion about her truth and verac-
ity or what is my opinion,” Brooks’ attorney clarified the ques-
tion to be, “Do you have an opinion as to what her reputation
is in the community[?]” (Emphasis supplied.) Furthermore,
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the third and final time Brooks’ attorney attempted to elicit
Johnson’s testimony, he phrased the question solely in terms
of reputation: “Based upon factors and things that we dis-
cussed, is her reputation for truth and veracity in your com-
munity good or bad?” It is therefore apparent that despite
Brooks’ attorney’s phrasing the question in terms of Johnson’s
“opinion,” he was attempting to elicit only testimony regard-
ing Sharon’s reputation.
The parties do not cite, and we are unable to locate, a case
from the Nebraska appellate courts detailing the foundational
requirements for the admission of testimony regarding a wit-
ness’ reputation for untruthfulness. Cases from other jurisdic-
tions, however, have addressed when foundation is adequate
to admit reputation testimony. For example, the Supreme
Judicial Court of Maine ruled on the admissibility of reputa-
tion testimony in State v. Tucker, 968 A.2d 543 (Me. 2009).
The pertinent Maine rule of evidence is worded similarly to
Nebraska’s rule 608. Compare Me. R. Evid. 608 with Neb.
Evid. R. 608.
In Tucker, the defendant was charged with sexual assault.
At trial, the defendant attempted to call a witness to tes-
tify about the victim’s reputation for untruthfulness. Id. The
Supreme Judicial Court upheld the trial court’s exclusion of
the reputation testimony due to lack of foundation. Id. The
court stated:
To be admissible, reputation evidence “must embody
the collective judgment of the community and must be
derived from a group whose size constitutes an indicium
of inherent reliability.” . . . “The community in which
the impeached party has the reputation for untruthfulness
must be sufficiently large; if the group is too insular, its
opinion of the witness’[s] reputation for truthfulness may
not be reliable because it may have been formed with the
same set of biases.”
Id. at 547 (citation omitted) (alteration in original). The wit-
ness indicated that the victim’s reputation for being untruthful
came from a group of eight teenagers “who socialized together
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and generally had a narrow set of experiences with the victim.”
Id. at 548. The appellate court concluded that the trial court
had properly excluded the reputation testimony because there
was insufficient foundation to show that the witness based the
reputation on a sufficiently large and diverse community. Id.
In the case at hand, Brooks similarly failed to show that
Johnson’s testimony regarding Sharon’s reputation for untruth-
fulness was based on a sufficiently large and diverse com-
munity. Johnson testified that she had spoken with Sharon’s
coworkers at George’s Auto Sales, but there was no evidence
regarding how many employees worked at George’s Auto
Sales. Additionally, there was no foundation to demonstrate
that the employees of George’s Auto Sales formed a diverse
group and that Johnson’s opinion regarding Sharon’s alleged
reputation for untruthfulness was based on a broad set of expe-
riences with this community. Like the foundation on an insular
group of eight teenagers in Tucker, there was insufficient foun-
dation here to demonstrate that Johnson’s testimony regarding
Sharon’s reputation for untruthfulness was based on a suffi-
ciently large and diverse community. See id. The trial court did
not abuse its discretion when it excluded Johnson’s testimony
on the basis of insufficient foundation.
2. Brooks’ Character Witnesses
Brooks asserts that the trial court erred when it excluded
the testimony of four of Brooks’ witnesses. The testimony of
these witnesses pertained to positive interactions the witnesses
had previously had with Brooks and the fact Brooks had never
told any of the witnesses that he was a paralegal. Brooks
argues the witnesses’ testimony should have been admissible
as an exception to hearsay for a declarant’s state of mind, or
as relevant character evidence of a pertinent trait—honesty.
However, the offers of proof demonstrate that no hearsay was
involved in the proposed testimony and that the witnesses
would not have testified regarding Brooks’ character trait of
honesty. We find Brooks’ assignment of error in this respect to
be without merit.
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[4,5] Evidence is relevant when it has any tendency to make
the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it
would be without the evidence. State v. Iromuanya, 272 Neb.
178, 719 N.W.2d 263 (2006). A trial court’s decision regarding
relevancy determinations will not be reversed absent an abuse
of discretion. State v. Sanders, 269 Neb. 895, 697 N.W.2d
657 (2005).
[6] Neb. Evid. R. 404(1)(a), Neb. Rev. Stat.
§ 27-404(1)(a) (Cum. Supp. 2014), allows a criminal defendant
to offer “[e]vidence of a pertinent trait of his or her character.”
In a criminal action, pertinent traits are those involved in the
crime on trial, such as honesty in a theft case. State v. Vogel,
247 Neb. 209, 526 N.W.2d 80 (1995).
Before trial, the State filed a motion in limine to exclude the
testimony of four witnesses that Brooks intended to call. The
State asked the court to prevent these witnesses from testifying
about their prior interactions with Brooks and from testifying
that Brooks never called himself a paralegal. The State argued
that it was improper impeachment of the State’s witnesses, that
the evidence was irrelevant, and that the testimony constituted
inadmissible hearsay.
In response to the State’s motion in limine, Brooks argued
that the evidence was relevant because Brooks had helped the
four witnesses on legal matters in the past, just as he claimed
to have helped Joshua and Sharon. Brooks also argued the tes-
timony would be admissible under Neb. Evid. R. 803(2), Neb.
Rev. Stat. § 27-803(2) (Cum. Supp. 2014), the hearsay excep-
tion for a declarant’s then-existing state of mind.
The trial court sustained the State’s motion in limine. The
court stated that the witnesses’ testimony would not be rel-
evant, because it did not relate to the incident between Joshua
and Sharon and Brooks. As the trial court phrased it, “[T]he
fact that somebody walked into a bank and talked to tellers 100
times and then on the 101st time went in and said, stick ’em
up, I don’t think those 100 transactions that the guy walked
into the bank . . . and didn’t say anything [are] relevant.” The
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court went on to state that even if the evidence were relevant,
the court believed its probative value would be outweighed by
its prejudicial effect.
In addition to ruling that the witnesses’ testimony was not
relevant, the court also stated that “to the extent this is char-
acter evidence,” Neb. Evid. R. 405, Neb. Rev. Stat. § 27-405
(Reissue 2008), would prevent the witnesses from testifying
to specific instances of Brooks’ conduct, such as their prior
interactions with him. The court explained that under rule 405,
inquiry into specific instances of conduct is permissible only
on cross-examination. Lastly, the court declined to address
whether the testimony would be hearsay and whether it would
fall under an exception to the hearsay rule.
At trial, Brooks did not call the four witnesses to testify.
Instead, Brooks made offers of proof as to what the witnesses’
testimony would have been in order to preserve the issue
for appeal.
The first offer of proof demonstrated the first witness would
have testified that he had known Brooks for 20 years and that
Brooks had never said he was a paralegal. The witness would
have testified that he was familiar with Brooks’ company,
P.U.R.G.E., and that his understanding was that Brooks helped
his clients with the procedure of the legal system.
The second witness would have testified that she was the
secretary and treasurer of P.U.R.G.E. She also would have tes-
tified that Brooks helped a friend of hers regain custody of her
daughter. Lastly, the offer of proof demonstrated that the wit-
ness would have testified that Brooks “doesn’t do the paralegal
work, he just does research.”
Third, Brooks offered the testimony of a witness who,
according to the offer of proof, would have testified that he
worked in the same building out of which Brooks operated
P.U.R.G.E. Brooks’ offer of proof demonstrated this third wit-
ness would have testified that Brooks helped him with a few
tickets and an assault case and that Brooks never said he was
an attorney or paralegal.
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The fourth and last witness would have testified that Brooks
had helped her with several legal matters. According to the
offer of proof, Brooks never filed any documents on her behalf,
but helped her research how to navigate the legal system
herself. Lastly, she would have testified that she never heard
Brooks refer to himself as a paralegal.
As in the motion in limine, the State objected to the tes-
timony of the witnesses as irrelevant. The court sustained
the State’s objections and excluded the testimony of all
four witnesses.
First, we note that the proposed testimony of Brooks’ four
witnesses did not involve hearsay. The offers of proof demon-
strate the witnesses would have testified to something Brooks
did not say: that he was a paralegal. Because no hearsay is
involved, the state of mind exception found in rule 803(2)
is inapplicable.
Next, we address Brooks’ contention on appeal that the four
witnesses identified in Brooks’ offers of proof should have
been permitted to testify under rule 404(1)(a) as providing
evidence of a character trait—honesty—pertinent to the crimes
with which he was charged. We agree that honesty would likely
be a character trait pertinent to a crime involving fraud, such
as theft by deception. See State v. Vogel, 247 Neb. 209, 526
N.W.2d 80 (1995).
However, at the hearing on the State’s motion in limine and
during his offers of proof at trial, Brooks did not reference
rule 404(1)(a) as a basis for admitting the testimony in ques-
tion. Even if Brooks had alerted the court that he was attempt-
ing to admit evidence of a pertinent character trait under rule
404(1)(a), Brooks’ offers of proof reveal that none of these
witnesses would have testified regarding Brooks’ honesty. The
witnesses’ testimony pertained to Brooks’ business, his prior
interactions with clients, and the fact he never said he was a
paralegal, not Brooks’ character of truthfulness or honesty. As
such, the testimony in question was not admissible as evidence
of a pertinent character trait under rule 404(1)(a).
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[7] We agree with the trial court that the four witnesses’
proposed testimony was not relevant. It is well accepted that
evidence of a defendant’s prior bad acts is not admissible to
prove that the defendant acted in conformity therewith on the
occasion in question. State v. Myers, 15 Neb. Ct. App. 308, 726
N.W.2d 198 (2006). See, also, rule 404(2). Courts applying
character evidence rules similar to those in Nebraska have
also stated that evidence of prior good acts is inadmissible
to prove that a defendant acted in conformity therewith on
a given occasion. See, e.g., United States v. Burke, 781 F.2d
1234, 1243 (7th Cir. 1985) (“[e]vidence that the defendant
frequently performs lawful or laudable acts does not often
establish that some subsequent act is also lawful or laudable”);
United States v. Russell, 703 F.2d 1243, 1249 (11th Cir. 1983)
(“‘[e]vidence of noncriminal conduct to negate the inference
of criminal conduct is generally irrelevant’”). Therefore, evi-
dence that Brooks had favorable prior business relationships
with other people is not relevant to his interactions with
Joshua and Sharon in the present case. The trial court did not
abuse its discretion when it excluded the testimony of Brooks’
four character witnesses.
3. Erroneous Jury Instructions
Brooks contends that the district court erred when it
instructed the jury to consider periods of time that occurred
outside the statute of limitations in determining whether or
not Brooks was guilty of the unauthorized practice of law.
Brooks argues the trial court also erred in refusing to give
his proposed instruction, which he claims properly stated the
statute of limitations. At the trial, Brooks did not object to the
portion of the jury instructions providing the improper time
period. Furthermore, Brooks’ proposed jury instruction did not
correctly state the statute of limitations period. Nevertheless,
we conclude the trial court committed plain error by giving an
incorrect jury instruction. We reverse, and remand for a new
trial on the unauthorized practice of law conviction.
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[8] Failure to object to a jury instruction after it has been
submitted to counsel for review precludes raising an objec-
tion on appeal absent plain error indicative of a probable
miscarriage of justice. State v. Abdulkadir, 286 Neb. 417, 837
N.W.2d 510 (2013). Nonetheless, whether requested to do so
or not, a trial court has the duty to instruct the jury on issues
presented by the pleadings and the evidence. State v. Weaver,
267 Neb. 826, 677 N.W.2d 502 (2004). Because of this duty,
the trial court, on its own motion, must correctly instruct on
the law. Id.
The unauthorized practice of law is a Class III misdemeanor.
Neb. Rev. Stat. § 7-101 (Reissue 2012). The statute of limita-
tions for a misdemeanor requires that a person be charged
within 1 year 6 months after committing the offense. Id.; Neb.
Rev. Stat. § 29-110(2) (Cum. Supp. 2014).
In the present case, the State filed its amended information
on December 11, 2013, alleging that Brooks committed the
unauthorized practice of law. Therefore, the conduct consti-
tuting the unauthorized practice of law must have occurred
on or after June 11, 2012, in order for the filing of the
amended information to be considered timely. Brooks’ con-
duct occurring before June 11 could not have been used to
support Brooks’ conviction for the unauthorized practice of
law, because the statute of limitations had already run for that
time period.
During the trial, Brooks and the State submitted proposed
jury instructions. With respect to the unauthorized practice of
law count, Brooks’ proposed instruction listed the elements
of the crime, including the following statement regarding the
applicable time period:
The material elements which the State must prove by evi-
dence beyond a reasonable doubt to convict . . . Brooks
of the Unauthorized Practice of Law are:
....
3. That the actions of . . . Brooks took place on, about
or between December 1, 2011, and July 31, 2012, in
Lancaster County, Ne.
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Brooks’ proposed instruction also contained the following:
As to Count [II], if you find beyond a reasonable doubt
that . . . Brooks is guilty of Count II, you must also make
a finding of the last day [t]hat . . . Brooks[’] conduct
ended as charged in this count:
We find beyond a reasonable doubt that . . . Brooks[’]
conduct ended in Count II on or about _____ ___, 201__.
The trial court’s jury instructions listed the elements of the
crimes in instruction No. 4. Instruction No. 4B listed the ele-
ments of the unauthorized practice of law. Instruction No. 4B
stated, in part:
The material elements which the State must prove by evi-
dence beyond a reasonable doubt in order to convict . . .
Brooks of the Unauthorized Practice of Law are:
....
3. That the actions of . . . Brooks took place on or
about or between December 1, 2011, and July 31, 2012,
in Lancaster County, Nebraska.
The court’s final jury instructions did not contain Brooks’ pro-
posed instruction requiring the jury to make a finding regard-
ing the day on which Brooks’ conduct ended.
After presenting the jury instructions to the parties, the
court held a conference. Brooks’ attorney objected to the
court’s instruction listing the elements of the unauthorized
practice of law because it did not require the jury to specify
the timeframe of the conduct. The court overruled Brooks’
objection. Brooks did not object to the portion of jury instruc-
tion No. 4B which stated that an element of the unauthorized
practice of law was that “the actions of . . . Brooks took
place on or about or between December 1, 2011, and July
31, 2012.”
The court’s jury instructions incorrectly stated that the jury
could convict Brooks of the unauthorized practice of law based
on conduct that occurred prior to June 11, 2012. However,
Brooks did not preserve error regarding the fact that instruc-
tion No. 4B included a period of time beyond the statute of
limitations. Brooks did not object to the instruction after it
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had been submitted for his review. See State v. Abdulkadir,
286 Neb. 417, 837 N.W.2d 510 (2013). Additionally, Brooks’
proposed instruction included the same timespan (December
1, 2011, to July 31, 2012) as the court’s final instructions.
Brooks’ contention that the trial court erred in not giving his
proposed instruction is therefore also without merit.
Nevertheless, we find the trial court committed plain error
by erroneously instructing the jury that it could base its guilty
verdict on conduct that occurred before June 11, 2012. Brooks’
conduct prior to June 11 could not have supported his convic-
tion for the unauthorized practice of law, because the statute of
limitations would have run with respect to that conduct by the
time the State filed its amended information. See State v. Loyd,
275 Neb. 205, 745 N.W.2d 338 (2008). Although Brooks did
not specifically object to jury instruction No. 4B or request an
instruction which listed the proper time period, the court still
had a duty to correctly instruct the jury on the applicable law,
including the statute of limitations. See State v. Weaver, 267
Neb. 826, 677 N.W.2d 502 (2004). We conclude the trial court
committed plain error when it instructed the jury that it could
rely on Brooks’ conduct prior to June 11, 2012, in finding him
guilty of the unauthorized practice of law. We reverse Brooks’
conviction for the unauthorized practice of law. We next must
address whether Brooks can be retried for the unauthorized
practice of law.
4. R etrial on Unauthorized
Practice of Law
Brooks asserts there was insufficient evidence to support his
conviction for the unauthorized practice of law. We address
Brooks’ sufficiency of the evidence claim in order to deter-
mine whether the Double Jeopardy Clause bars a retrial. We
conclude Brooks can be retried for the unauthorized practice
of law.
[9-11] Upon finding error in a criminal trial, the review-
ing court must determine whether all evidence admitted by
the trial court was sufficient to sustain the conviction before
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remanding for a new trial. See State v. McCulloch, 274 Neb.
636, 742 N.W.2d 727 (2007). See, also, Lockhart v. Nelson,
488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988). The
Double Jeopardy Clause does not forbid a retrial so long as the
sum of the evidence admitted by a trial court would have been
sufficient to sustain a guilty verdict. McCulloch, supra. When
considering the sufficiency of the evidence in determining
whether to remand for a new trial or to dismiss, an appellate
court must consider all the evidence admitted by the trial court
irrespective of the correctness of that admission. Id.
Section 7-101 prohibits the unauthorized practice of law:
[N]o person shall practice as an attorney or counselor at
law, or commence, conduct or defend any action or pro-
ceeding to which he is not a party, either by using or sub-
scribing his own name, or the name of any other person,
or by drawing pleadings or other papers to be signed and
filed by a party, in any court of record of this state, unless
he has been previously admitted to the bar by order of the
Supreme Court of this state.
The Nebraska Supreme Court has elaborated that the practice
of law includes the direct examination and cross-examination
of witnesses, argument to the court, the trial of cases in court,
and the giving of legal advice to persons regarding their
rights. In re Estate of Cooper, 275 Neb. 297, 746 N.W.2d 653
(2008); State, ex rel. Hunter, v. Kirk, 133 Neb. 625, 276 N.W.
380 (1937).
There was evidence presented at the trial that Brooks drafted
and filed numerous pleadings in Joshua’s dissolution and cus-
tody case. See § 7-101. The evidence also supported a finding
that Brooks gave Joshua legal advice concerning his rights,
including what documents to file, how to proceed with the case
after Joshua’s ex-wife was granted temporary custody, and
how to move forward with the case after Joshua’s appeal was
denied. See Kirk, supra.
Brooks correctly observes that all of the pleadings were filed
in Joshua’s dissolution and custody case prior to June 11, 2012.
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Brooks asserts that the pleadings cannot support his convic-
tion because they were drafted and filed outside the statute of
limitations period. However, in determining whether sufficient
evidence was adduced at trial in order to permit Brooks to be
retried, we consider all the evidence the court admitted, includ-
ing erroneously admitted evidence. See McCulloch, supra. We
conclude that there was sufficient evidence adduced at trial to
sustain Brooks’ conviction for the unauthorized practice of law.
Thus, Brooks is not entitled to dismissal of the charges against
him and can be retried for the unauthorized practice of law.
However, we address the admissibility of evidence from out-
side the statute of limitations because we believe it is an issue
likely to recur on retrial.
[12] An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues
are likely to recur during further proceedings. State v. Edwards,
286 Neb. 404, 837 N.W.2d 81 (2013). In arguing that the
evidence was insufficient to sustain his conviction for the
unauthorized practice of law, Brooks appears to contend that
the jury should not have been permitted to hear any evidence
of Brooks’ conduct that occurred outside the statute of limita-
tions. We note that, given our prior discussion, evidence from
outside the limitations period cannot be used to convict Brooks
for the unauthorized practice of law on retrial. However, evi-
dence of Brooks’ conduct from outside the limitations period
is admissible to provide context to evidence from within the
limitations period.
[13] Prior conduct that is “inextricably intertwined with the
charged crime” is admissible to “complete[] the story or pro-
vide[] a total picture of the charged crime.” State v. Powers,
10 Neb. Ct. App. 256, 262, 634 N.W.2d 1, 7, 8 (2001), disap­
proved on other grounds, State v. Smith, 267 Neb. 917, 678
N.W.2d 733 (2004). For example, in Powers, the defendant
was charged with terroristic threats for sending a letter to the
Attorney General. In the letter, the defendant stated, “‘I’m
writing to you in regards to all of the threatening letter’s [sic]
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that I’ve written to you in the past’” and “‘I’ll . . . do all that I
told you I would do. . . .’” Id. at 257, 634 N.W.2d at 4 (altera-
tion in original). The Court of Appeals held that the trial court
had properly admitted the defendant’s past threatening letters
into evidence because they were inextricably intertwined with
the charge of terroristic threats and were necessary to show
the details and context of his threats in the most current letter.
Powers, supra.
In the case at hand, Brooks had conversations with Joshua
and Sharon after June 11, 2012, about “continuing the case”
and “papers to file.” Evidence of Brooks’ acts prior to June
11 is admissible to give context to these statements. The evi-
dence shows that prior to June 11, Brooks had advised Joshua
and Sharon on which documents to file and had drafted and
filed pleadings on their behalf. This background is inextricably
intertwined with Brooks’ representations after June 11 that he
would continue working on the case and file additional plead-
ings. On retrial, the court may properly admit evidence from
outside the statute of limitations to provide necessary context
to Brooks’ alleged unauthorized practice of law occurring
within the limitations period.
We reverse Brooks’ conviction for the unauthorized practice
of law and remand that matter for a new trial.
5. Insufficient Evidence of
Theft by Deception
Brooks asserts there was insufficient evidence to sustain
his conviction for theft by deception. According to Brooks, he
lacked the intent required for theft by deception because he did
not believe he was violating any laws by helping Joshua on his
court case. The evidence demonstrates that Brooks knew his
actions were contrary to the statute banning nonattorneys from
practicing law and that he intended to create the impression he
could give Joshua legal advice and assistance in order to obtain
money from Joshua and Sharon. As such, this assignment of
error is without merit.
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As stated above, an appellate court reviewing the sufficiency
of the evidence asks 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. Hale, 290 Neb. 70, 858
N.W.2d 543 (2015).
A person commits theft by deception if he or she obtains
property by intentionally “creat[ing] or reinforc[ing] a false
impression, including false impressions as to law, value, inten-
tion, or other state of mind.” Neb. Rev. Stat. § 28-512(1)
(Reissue 2008).
Brooks misstates this assignment of error in his brief.
Specifically, Brooks’ third and fifth assignments of error are
identical. Both assignments of error state, “The evidence
adduced at trial was insufficient to sustain a conviction for the
unauthorized practice of law.” (Emphasis supplied.) However,
it appears to us after reading Brooks’ argument section that
Brooks intended to assign the sufficiency of the evidence
to support his theft by deception conviction as his fifth
assignment of error rather than repeating his third assignment
of error.
The State’s theory at trial was that Brooks intentionally cre-
ated a false impression as to what the law allowed him to do
as a nonattorney in order to induce Joshua and Sharon to pay
him the $1,500. Brooks argues that he lacked the intent to cre-
ate a false impression because he did not know what the law
prohibited nonattorneys from doing and therefore lacked the
intent to deceive Joshua and Sharon. The evidence presented at
trial contradicts Brooks’ assertion.
At trial, Brooks himself testified that he told Joshua and
Sharon he could neither represent them in court nor file
documents for them because he was a nonattorney. Yet Joshua
and Sharon both testified that Brooks said he would “handle
all of the paperwork” for them. Joshua’s and Sharon’s testi-
mony also supported a finding that Brooks drafted and filed
the pleadings in Joshua’s dissolution and custody case. This
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testimony demonstrates that Brooks understood what was
prohibited by the law, but that he nevertheless created the
false impression that he could advise Joshua and draft and
file pleadings in Joshua’s case in order to obtain $1,500 from
Joshua and Sharon.
This evidence, when viewed in a light most favorable to the
State, provides a basis for a rational jury to find Brooks guilty
of theft by deception. There is no merit to Brooks’ assignment
of error.
6. A llocution
Brooks argues the district court violated his right to allocu-
tion when it did not let his wife speak at the sentencing hear-
ing. We disagree.
[14] Allocution is an unsworn statement from a convicted
defendant to the sentencing judge in which the defendant can
ask for mercy, explain his or her conduct, apologize for the
crime, or say anything else in an effort to lessen the impend-
ing sentence. State v. Pereira, 284 Neb. 982, 824 N.W.2d
706 (2013). The right to allocution is codified at Neb. Rev.
Stat. § 29-2201 (Reissue 2008), which states, in relevant part,
“Before the sentence is pronounced, the defendant must be . . .
asked whether he has anything to say why judgment should not
be passed against him.”
A sentencing hearing was held on December 23, 2014.
At the hearing, Brooks indicated his wife wanted to make a
statement to the court. The court denied the request because
Brooks had not previously submitted a written statement from
his wife.
After Brooks’ request for his wife to speak was denied,
Brooks spoke at the sentencing hearing. His allocution lasts
nearly nine pages in the bill of exceptions. After Brooks’ allo-
cution, he again asked the court to hear from his wife. The
court stated it required statements from individuals speaking
at sentencing to be presented in writing ahead of time. The
court indicated it required prior written statements so that the
State had an opportunity to review the statements. For these
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reasons, the court again denied Brooks’ request that his wife
be allowed to speak.
The State argues Brooks did not preserve this issue for
appeal because he did not object to the court’s refusal to allow
Brooks’ wife to speak. The record of the sentencing hearing
reveals that Brooks twice asked the court to allow his wife to
speak. Although Brooks did not use the word “objection” dur-
ing the second request, he did bring his disagreement with the
initial ruling to the court’s attention by repeating his request.
[15] However, even if we determine that Brooks preserved
error on this issue, his assertion that the court violated his right
to allocution is without merit. The right to allocution is per-
sonal to the defendant. The statute indicates that “the defend­
ant must be . . . asked” whether he wishes to say anything.
§ 29-2201 (emphasis supplied). Similarly, the Supreme Court
defines allocution as a “‘statement from a convicted defend­
ant.’” Pereira, 284 Neb. at 985, 824 N.W.2d at 709 (emphasis
supplied). Brooks exercised his right to allocution and made a
lengthy statement to the court. His right to allocution did not
require the court to allow his wife to speak as well. Brooks’
assignment of error in this regard is without merit.
7. Letters From Attorneys
at Sentencing
Brooks also alleges the district court abused its discretion at
the sentencing hearing by considering letters from attorneys in
the community that indicated Brooks had continued to engage
in the unauthorized practice of law following his conviction.
Brooks asserts that the letters lacked corroborating information
and that the court stated that it believed the letters were only
half true. This assignment of error is without merit.
[16,17] At a sentencing hearing, evidence may be presented
as to any matter that the court deems relevant to the sentence.
State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005). A sen-
tencing court has broad discretion as to the source and type of
evidence and information which may be used in determining
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the kind and extent of the punishment to be imposed. State v.
Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
As part of the presentence report, the court received one
e-mail and two letters from local attorneys. The e-mail was from
a deputy county attorney to Brooks’ presentence investigation
officer. The e-mail indicated that Brooks came into a court-
room where the deputy county attorney was interviewing pro
se defendants and said he was “present ‘amicus curiae.’” The
deputy county attorney did not personally see Brooks engaging
in the unauthorized practice of law. The deputy county attorney
stated, however, that she believed two other attorneys had wit-
nessed Brooks giving legal advice to their clients.
The two letters accompanying the presentence report were
from the attorneys mentioned in the deputy county attorney’s
e-mail. The attorneys represent individuals facing contempt of
court charges due to nonpayment of child support. The first
attorney indicated that one of the attorney’s clients brought
Brooks to a private meeting with the attorney. During the meet-
ing, Brooks encouraged the client “to proceed to trial . . . and
that, should he lose, he could merely appeal the decision.” The
attorney indicated that this was contrary to the advice he had
given the client and that in the attorney’s opinion, “Brooks was
engaging in the unauthorized practice of law.”
The second attorney’s letter told a similar story. The sec-
ond attorney had been in a courtroom where Brooks was also
present. Brooks “was speaking loudly and answering ques-
tions from multiple persons,” including advising people on the
amount of child support a court could order someone to pay.
The attorney opined that Brooks’ recommendations were mis-
leading and constituted the giving of legal advice.
In his allocution, Brooks admitted to being at the courthouse
during one incident described in the letters. Brooks claimed,
however, that he was there with his cousin. Brooks further
asserted he did not give anyone legal advice, but merely
advised his cousin to read the statute by saying, “[A]ll you
have to do is go to [chapter] 42.”
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At the time of sentencing, the court made the following
statement regarding the attorneys’ letters:
I can’t ignore letters to me from attorneys that within
months of a jury verdict say to me that you’re up here
giving people legal advice.
And whether you dispute that or not, whether you
think that they didn’t — they misreported that, these are
attorneys that have gone to some length to write and say,
I believe an individual — this individual — was engag-
ing in the unauthorized practice of law by advising my
clients. . . .
....
. . . I can’t ignore those things even if they’re only
half true.
Brooks claims the trial court abused its discretion because
“[t]hings that are half true should be ignored by the sentenc-
ing court.” Brief for appellant at 41. However, the trial court’s
statement that it could not ignore the letters “even if they’re
only half true” does not appear to be an indication that the
court believed the letters were partially untrue, but a turn of
phrase. The court was apparently expressing its disapproval
of Brooks’ behavior by indicating that if even half of the mis-
conduct alleged by the attorneys were true, it would still be
so egregious as to warrant consideration by the court during
sentencing. The court may also have been referencing the fact
that, by Brooks’ own admission, the letters were “half true”
because Brooks admitted to being at the courthouse with his
cousin and advising him to read “[chapter] 42.” We cannot
say that the district court abused its discretion by finding the
attorneys’ letters to be more credible than Brooks’ version of
events. It was not error for the court to consider the letters at
the sentencing hearing.
8. Excessive Sentences
Brooks also asserts the district court imposed excessive
sentences by not giving proper weight to evidence that Brooks
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was trying to better himself and the fact that the offenses
were nonviolent.
[18,19] When imposing a sentence, a sentencing judge
should consider the defendant’s age, mentality, education
and experience, social and cultural background, past criminal
record, and motivation for the offense, as well as the nature
of the offense and the violence involved in the commission
of the crime. State v. Howard, 282 Neb. 352, 803 N.W.2d 450
(2011). Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the 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. Casares, 291 Neb. 150, 864 N.W.2d
667 (2015).
At the sentencing hearing, the court indicated it had con-
sidered all the statutory factors and reviewed the presentence
report. The court also referenced the attorneys’ letters dem-
onstrating that Brooks continued to engage in the unautho­
rized practice of law. The court concluded that a jail sentence
was appropriate:
I think this is dangerous behavior. And the fact that
you’re willing to do this after being convicted by a jury
of a felony just says to me that if I put you on proba-
tion, this isn’t going [to] change. And I didn’t hear one
word from you today that suggested to me that this
would change.
. . . [Q]uite frankly, I feel a period of incarceration is
appropriate because anything less would depreciate the
seriousness of what you’ve done and promote disrespect
for the law.
The district court sentenced Brooks to imprisonment for 15
to 35 months on the theft by deception conviction and 3 to 3
months on the unauthorized practice of law conviction. The
court ordered that the sentences be served consecutively.
Brooks’ sentences were within the statutory limits. See, Neb.
Rev. Stat. § 28-518(2) (Cum. Supp. 2014) (stating that theft by
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deception is Class IV felony when it involves more than $500
and not over $1,500); Neb. Rev. Stat. § 28-105 (Cum. Supp.
2014) (providing sentencing range of 0 to 5 years’ imprison-
ment for Class IV felony); § 7-101 (stating that unauthorized
practice of law is Class III misdemeanor); Neb. Rev. Stat.
§ 28-106 (Cum. Supp. 2014) (providing sentencing range of
0 to 3 months’ imprisonment for Class III misdemeanor). We
therefore review Brooks’ sentences only for an abuse of discre-
tion by the district court. See Casares, supra.
Brooks argues the trial court did not properly consider that
Brooks had taken steps to better himself, including going to
school and having little contact with law enforcement in recent
years. Brooks also argues the court should have considered
the nonviolent nature of the crimes as a mitigating factor.
However, the record reveals that the district court relied upon
evidence that Brooks had not taken steps to better himself, but
had instead continued to engage in the unauthorized practice
of law, following his conviction. Furthermore, the court noted
that Brooks’ crimes were “dangerous behavior” because other
people’s legal interests were at stake, even if the crimes were
not violent offenses. We cannot find an abuse of discretion in
the sentences imposed in this case.
9. Motion for New Trial
Brooks argues the trial court erred in failing to grant his
motion for new trial. Brooks asserts he was entitled to a new
trial because the district court erred when it excluded Johnson’s
testimony about Sharon’s reputation for untruthfulness, when it
excluded Brooks’ four character witnesses, when it determined
there was sufficient evidence to support the unautho­ rized
practice of law conviction, and when it determined there was
sufficient evidence to support Brooks’ conviction for theft by
deception. This assignment of error is meritless.
[20,21] A new trial can be granted on grounds materi-
ally affecting the substantial rights of the defendant. State v.
Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005). A motion
for new trial is addressed to the discretion of the trial court,
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STATE v. BROOKS
Cite as 23 Neb. Ct. App. 560
whose decision will be upheld in the absence of an abuse
of discretion. State v. Harris, 264 Neb. 856, 652 N.W.2d
585 (2002).
Brooks does not assert any new issues in this assignment
of error, but, rather, argues that the trial court should have
granted him a new trial based on other assigned errors already
addressed. For the reasons discussed above, Brooks’ assertions
are without merit. The district court did not abuse its discre-
tion in refusing to grant Brooks’ motion for new trial.
10. Ineffective Assistance
of Counsel
Brooks asserts that his trial counsel failed to provide effec-
tive assistance. He argues that his trial counsel was inef-
fective with regard to (1) failing to cite § 27-608 when the
court asked for relevant authority supporting the admission
of Johnson’s testimony; (2) failing to lay proper foundation
for Johnson’s testimony; (3) failing to lay proper foundation
for the admission of Brooks’ four character witnesses; (4)
failing to file a motion in limine or object at trial to prevent
the introduction of evidence outside the statute of limitations
on the unauthorized practice of law charge; (5) failing to
impeach Sharon about inconsistent statements between her
trial testimony and her interview with an investigator; (6)
failing to object to jury instruction No. 4B, which permitted
the jury to convict Brooks of the unauthorized practice of law
based on evidence outside the statute of limitations; and (7)
failing to move for the trial judge to recuse himself because
he presided over another case in which Brooks was involved.
We find that effectiveness of counsel in these regards cannot
be addressed on direct appeal because the record is insuffi-
cient at this time.
[22,23] In order to prevail on a claim of ineffective assist­
ance of counsel, a defendant must show that his or her coun-
sel’s performance was deficient and that he or she was preju-
diced by such deficiency. State v. Howard, 282 Neb. 352, 803
N.W.2d 450 (2011). Ineffective assistance of counsel claims
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STATE v. BROOKS
Cite as 23 Neb. Ct. App. 560
are generally addressed through a postconviction action. State
v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013). This is fre-
quently because the record is insufficient to review the issue on
direct appeal. Id.
As an initial matter, we note that our earlier discussion of
the trial court’s erroneous inclusion of dates outside the statute
of limitations in jury instruction No. 4B eliminates the need to
address that allegation of ineffectiveness. With respect to the
six remaining allegations of ineffective assistance of counsel,
the record is insufficient for us to evaluate counsel’s actions
in each respect in which Brooks asserts the performance was
deficient. Brooks’ assertions require an evaluation of counsel’s
trial strategy, for which the record is insufficient. See State v.
Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014). Thus, we do
not address the merits of this assignment of error.
V. CONCLUSION
Upon our review, we find that the district court erred when
it instructed the jury that it could convict Brooks of the unau-
thorized practice of law based on conduct occurring outside the
statute of limitations. We reverse Brooks’ conviction for the
unauthorized practice of law and remand that matter for a new
trial. We find no merit to Brooks’ other assertions on appeal.
Accordingly, we affirm Brooks’ conviction and sentence for
theft by deception.
A ffirmed in part, and in part reversed
and remanded for a new trial.