State v. Bedford , 31 Neb. Ct. App. 339 ( 2022 )


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  • Nebraska Supreme Court Online Library
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    09/27/2022 08:05 AM CDT
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    Nebraska Court of Appeals Advance Sheets
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    STATE V. BEDFORD
    Cite as 
    31 Neb. App. 339
    State of Nebraska, appellee, v.
    Keith Bedford, appellant.
    ___ N.W.2d ___
    Filed September 20, 2022.   No. A-21-596.
    1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
    apply, the admissibility of evidence is controlled by the Nebraska
    Evidence Rules and judicial discretion is involved only when the rules
    make discretion a factor in determining admissibility.
    2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
    Rules commit the evidentiary question at issue to the discretion of the
    trial court, an appellate court reviews the admissibility of evidence for
    an abuse of discretion.
    3. Jury Instructions: Proof: Appeal and Error. In order to establish
    reversible error from a court’s refusal to give a requested instruction, an
    appellant has the burden to show that (1) the tendered instruction is a
    correct statement of law, (2) the tendered instruction is warranted by the
    evidence, and (3) the appellant was prejudiced by the court’s refusal to
    give the tendered instruction.
    4. Judgments: Appeal and Error. Regarding matters of law, an appellate
    court has an obligation to reach a conclusion independent of that of the
    trial court in a judgment under review.
    5. Convictions: Evidence: Appeal and Error. In reviewing a criminal
    conviction for a sufficiency of the evidence claim, whether the evidence
    is direct, circumstantial, or a combination thereof, the standard is the
    same: An appellate court does not resolve conflicts in the evidence, pass
    on the credibility of witnesses, or reweigh evidence, as such matters
    are for the finder of fact. 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 ele-
    ments of the crime beyond a reasonable doubt.
    6. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
    fective assistance of trial counsel may be determined on direct appeal
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    is a question of law. In reviewing claims of ineffective assistance of
    counsel on direct appeal, an appellate court decides only whether the
    undisputed facts contained within the record are sufficient to conclu-
    sively determine whether counsel did or did not provide effective assist­
    ance and whether the defendant was or was not prejudiced by counsel’s
    alleged deficient performance.
    7.   Appeal and Error. An alleged error must be both specifically assigned
    and specifically argued to be considered by an appellate court.
    8.   Courts: Records: Claims. It is not the duty of a court to scour the
    record in search of facts that might support a claim.
    9.   Self-Defense. Self-defense is a statutorily affirmative defense in
    Nebraska.
    10.   Self-Defense: Jury Instructions: Evidence. In the context of a self-
    defense instruction, a trial court must instruct the jury on the issue of
    self-defense when there is any evidence adduced which raises a legally
    cognizable claim of self-defense.
    11.   Self-Defense: Claims. To successfully assert the claim of self-defense,
    one must have a both reasonable and good faith belief in the necessity
    of using force.
    12.   Self-Defense. The force used in defense must be justified under the
    circumstances.
    13.   Jury Instructions: Evidence. A trial court is not required to give
    an instruction where there is insufficient evidence to prove the facts
    claimed; however, it is not the province of the trial court to decide fac-
    tual issues even when it considers the evidence produced in support of
    one party’s claim to be weak or doubtful.
    14.   Self-Defense: Jury Instructions: Evidence. It is only when the evi-
    dence does not support a legally cognizable claim of self-defense, or
    the evidence is so lacking in probative value as to constitute a failure
    of proof, that a trial court may properly refuse to instruct a jury on a
    defendant’s theory of self-defense.
    15.   ____: ____: ____. That a slight amount of evidence may ultimately
    be insufficient for the defendant to prevail on his or her claim of self-
    defense does not bear on whether a self-defense instruction should have
    been given by the trial court.
    16.   Self-Defense: Jury Instructions: Juries: Evidence. Only where the
    jury could reasonably find that the defendant’s use of force was justi-
    fied should the trial court instruct the jury on self-defense; however, it
    is not enough to merely show any evidence of self-defense to support an
    instruction thereon.
    17.   Jury Instructions: Appeal and Error. Jury instructions are subject
    to the harmless error rule, and an erroneous jury instruction requires
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    reversal only if the error adversely affects the substantial rights of the
    complaining party.
    18.   Verdicts: Appeal and Error. Harmless error review looks to the basis
    on which the trier of fact actually rested its verdict; the inquiry is not
    whether in a trial that occurred without the error a guilty verdict surely
    would have been rendered, but, rather, whether the actual guilty verdict
    rendered in the questioned trial was surely unattributable to the error.
    19.   Jury Instructions: Appeal and Error. It is the duty of the trial judge to
    instruct the jury on the pertinent law of the case, whether requested to
    do so or not, and an instruction or instructions which by the omission of
    certain elements have the effect of withdrawing from the jury an essen-
    tial issue or element in the case are prejudicially erroneous.
    20.   Criminal Law: Evidence: New Trial: Appeal and Error. Upon find-
    ing reversible error in a criminal trial, an appellate court must determine
    whether the total evidence admitted by the district court, erroneously or
    not, was sufficient to sustain a guilty verdict.
    21.   Evidence: New Trial: Double Jeopardy: Appeal and Error. If evi-
    dence is not sufficient to sustain a verdict after an appellate court finds
    reversible error, then double jeopardy forbids a remand for a new trial.
    22.   Criminal Law: Judgments: Convictions: Appeal and Error. An
    appellate court may reverse a criminal judgment in part and affirm the
    judgment in part where the reversed conviction is separate and distinct
    from the remaining convictions.
    23.   Witnesses. A defendant’s reasons for attempting to induce a witness to
    commit any of the acts enumerated in 
    Neb. Rev. Stat. § 28-919
    (1) (Cum.
    Supp. 2020) are not relevant.
    24.   Effectiveness of Counsel: Records: Appeal and Error. When a defend­
    ant’s trial counsel is different from his or her counsel on direct appeal,
    the defendant must raise on direct appeal any issue of trial counsel’s
    ineffective performance which is known to the defendant or is apparent
    from the record.
    25.   ____: ____: ____. Appellate courts have generally reached ineffective
    assistance of counsel claims on direct appeal only in those instances
    where it was clear from the record that such claims were without merit,
    or in the rare case where trial counsel’s error was so egregious and
    resulted in such a high level of prejudice that no tactic or strategy could
    overcome the effect of the error, which effect was a fundamentally
    unfair trial.
    26.   ____: ____: ____. An ineffective assistance of counsel claim made on
    direct appeal can be found to be without merit if the record establishes
    that trial counsel’s performance was not deficient or that the appellant
    could not establish prejudice.
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    27. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
    ineffective assistance of counsel under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant must
    show that his or her counsel’s performance was deficient and that this
    deficient performance actually prejudiced the defendant’s defense.
    28. ____: ____. To show that counsel’s performance was deficient, a defend­
    ant must show that counsel’s performance did not equal that of a lawyer
    with ordinary training and skill in criminal law.
    29. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
    dice, the defendant must demonstrate a reasonable probability that but
    for counsel’s deficient performance, the result of the proceeding would
    have been different. A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.
    30. Effectiveness of Counsel: Speedy Trial. When a defendant alleges he
    or she was prejudiced by trial counsel’s failure to properly assert the
    defendant’s speedy trial rights, the court must consider the merits of the
    defendant’s speedy trial rights under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984). Only if a motion would
    have resulted in the defendant’s absolute discharge, thus barring a later
    trial and conviction, could the failure to move for discharge be deemed
    ineffective assistance.
    31. Constitutional Law: Speedy Trial. Determining whether a defendant’s
    constitutional right to a speedy trial has been violated requires a balanc-
    ing test in which the courts must approach each case on an ad hoc basis.
    That test involves consideration of four factors: (1) the length of delay,
    (2) the reason for the delay, (3) the defendant’s assertion of the right,
    and (4) prejudice to the defendant.
    32. ____: ____. In analyzing the prejudice factor of the four-factor test
    to determine whether constitutional speedy trial rights have been vio-
    lated, the U.S. Supreme Court enumerated three aspects: (1) preventing
    oppressive pretrial incarceration, (2) minimizing anxiety and concern of
    the defendant, and (3) limiting the possibility that the defense will be
    impaired by dimming memories and loss of exculpatory evidence.
    33. Effectiveness of Counsel: Proof: Appeal and Error. When making an
    ineffective assistance of counsel claim on direct appeal, allegations of
    prejudice are not required. However, a defendant must make specific
    allegations of the conduct that he or she claims constitutes deficient
    performance.
    34. Effectiveness of Counsel: Appeal and Error. General allegations that
    trial counsel performed deficiently or that trial counsel was ineffective
    are insufficient to raise an ineffective assistance claim on direct appeal
    and thereby preserve the issue for later review.
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    35. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error.
    When reviewing claims of alleged ineffective assistance of counsel, an
    appellate court affords trial counsel due deference to formulate trial
    strategy and tactics.
    36. Effectiveness of Counsel: Presumptions: Appeal and Error. There
    is a strong presumption that counsel acted reasonably, and an appellate
    court will not second-guess reasonable strategic decisions.
    37. Judgments: Effectiveness of Counsel: Appeal and Error. Even if
    found unreasonable, error owing to ineffective assistance of counsel
    justifies setting aside the judgment only if there was prejudice.
    38. Trial: Joinder: Appeal and Error. Whether offenses were properly
    joined involves a two-stage analysis: (1) whether the offenses were suf-
    ficiently related to be joinable and (2) whether the joinder was prejudi-
    cial to the defendant.
    39. Trial: Joinder: Presumptions. There is a strong presumption against
    severing properly joined counts.
    40. Trial: Joinder: Juries: Evidence. Joined charges do not usually result
    in prejudice if the evidence is sufficiently simple and distinct for the
    jury to easily separate evidence of the charges during deliberations.
    41. Trial: Joinder. Prejudice from joinder cannot be shown if evidence
    of one charge would have been admissible in a separate trial of
    another charge.
    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.
    Joseph D. Nigro, Lancaster County Public Defender, and
    John C. Jorgensen for appellant.
    Douglas J. Peterson, Attorney General, and Matthew Lewis
    for appellee.
    Pirtle, Chief Judge, and Bishop and Welch, Judges.
    Per Curiam.
    I. INTRODUCTION
    Following a jury trial in the Lancaster County District
    Court, Keith Bedford was convicted of one count of assault
    by strangulation, two counts of third degree domestic assault,
    and one count of tampering with a witness. He was found
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    not guilty of a third count of third degree domestic assault.
    On appeal, Bedford claims that the district court erred in
    preventing the impeachment of the victim’s testimony and
    in failing to give his requested self-defense jury instruction.
    He also asserts that the evidence was insufficient to sustain
    his convictions and that he received ineffective assistance of
    trial counsel for multiple reasons. Because we find error in
    the court’s refusal to instruct on self-defense as to one count
    of third degree domestic assault, we affirm in part and in
    part reverse the court’s judgment and remand the cause for a
    new trial.
    II. BACKGROUND
    Bedford and Jessica Bedford (Jessica) met in June 2017
    through a mutual friend and began a romantic relationship
    approximately 1 month later. They moved in together shortly
    thereafter, separated for various periods, and were married in
    December 2019. Beginning in July 2019 and continuing through
    April 2020, several incidents occurred involving Bedford and
    Jessica, including physical altercations, which resulted in the
    filing of criminal charges against Bedford.
    Bedford was arrested on May 1, 2020, and the State filed an
    information on August 13 charging Bedford with five counts:
    count 1, assault by strangulation or suffocation, a Class IIIA
    felony, in violation of 
    Neb. Rev. Stat. § 28-310.01
    (1) (Cum.
    Supp. 2020); counts 2 through 4, third degree domestic assault
    with a prior conviction, each a Class IIIA felony, in violation
    of 
    Neb. Rev. Stat. § 28-323
    (1) (Reissue 2016); and count 5,
    tampering with a witness, a Class IV felony, in violation of
    
    Neb. Rev. Stat. § 28-919
    (1) (Cum. Supp. 2020). Counts 1 and 2
    related to an incident occurring in April 2020, count 3 stemmed
    from an October 2019 incident, and count 4 arose from a July
    2019 incident. Count 5 related to a phone call between Bedford
    and Jessica on October 7, 2019, while Bedford was incar-
    cerated. The State filed an amended information on June 2,
    2021, alleging the same five counts and charging Bedford as a
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    habitual criminal in connection with count 5, pursuant to 
    Neb. Rev. Stat. § 29-2221
     (Reissue 2016).
    Trial commenced on June 7, 2021, and closing arguments
    were made on June 10. Evidence was adduced, including the
    testimonies of Jessica, her son, her grandmother, Bedford’s
    girlfriend and members of her family, a registered nurse, and
    several law enforcement officers. Bedford also testified in his
    own behalf. We begin by setting forth the conflicting narratives
    regarding each incident underlying the multiple counts charged
    against Bedford.
    1. July 2019 Incident
    According to Jessica, she and Bedford began to argue on
    July 19, 2019, over “[m]oney” and “other women,” an argu-
    ment initially sparked over the fact that Bedford had driven a
    vehicle belonging to a female acquaintance to Jessica’s resi-
    dence. The argument began via text messages and continued
    into a verbal dispute outside of Jessica’s garage. The argument
    “escalated” into “yelling,” and Bedford “pushed” Jessica into
    her garage door and struck her “with a closed fist” on the “left
    side of [her] face.” Jessica recalled that after being struck,
    she “felt like [she] couldn’t close [her] mouth.” Bedford then
    “[g]rabbed at” Jessica in an effort to “get to [her back] pocket.”
    Jessica then disentangled herself from Bedford and “went
    around to the side of the house[,] grabbed a rock[,] and tried to
    throw it at him.” The rock missed Bedford and instead struck
    the windshield of the vehicle belonging to Bedford’s female
    acquaintance. As Bedford began to leave, Jessica followed
    after the vehicle into the road while “still yelling at him.” She
    then “slipped on some gravel at the end of the driveway” and
    fell, injuring her hand in the process.
    Although Jessica did not call law enforcement to report this
    incident, an officer came to her home later that evening fol-
    lowing a vandalism report made by Bedford’s female acquain-
    tance. During the investigative interview, the officer took
    photographs of Jessica’s injuries and Jessica reported what had
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    occurred between herself and Bedford. Law enforcement made
    efforts to contact Bedford without success.
    Conversely, Bedford described that he had driven to
    Jessica’s home to “pick up some cash that she told [him] she
    would give” to him. According to Bedford, after he arrived at
    Jessica’s residence, “[s]he came outside and . . . struck [him],”
    saying that she could not “believe [he] drove this bitch’s car
    to [Jessica’s] grandma’s house.” Afterward, Jessica “came to
    the driver’s side of the [windshield and] threw a rock into
    the wind[shield].” She then picked up the rock and “threw it
    into the wind[shield] again.” Bedford returned to the vehicle
    and began to drive away; he had to “look out the passenger’s
    side of the wind[shield]” because it “was so damaged.” He
    “didn’t pay attention” to Jessica’s conduct as he left, and he
    drove straight to his female acquaintance’s home to explain the
    damage. At this time, Bedford had a warrant out for his arrest
    unrelated to the incident, and he did not have any contact with
    law enforcement following this incident. During the period
    immediately following the July 2019 incident, Bedford cut off
    communications with Jessica; thereafter, he left Nebraska for
    work-related purposes.
    2. October 2019 Incident
    Following Bedford’s return to Nebraska in August 2019,
    he “opened back up to” Jessica and resumed talking with her.
    He moved back in with her in September, and the two lived
    together in an apartment for a time.
    On October 5, 2019, the two had an argument initially
    concerning the discipline of Jessica’s children. The argument
    quickly escalated as Bedford and Jessica moved to their bed-
    room in the apartment. One of Jessica’s children remained in
    the apartment’s living room.
    According to Jessica, the argument escalated to the point
    that Bedford was packing up his possessions and preparing
    to leave. During the course of the argument, Bedford picked
    up a pair of boots and began making gestures with his arms
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    while holding the boots. One of the boots hit Jessica in the
    “corner of [her] eye” and caused it to bruise and swell. She
    denied that Bedford ever pushed her during this incident, and
    she did not call law enforcement. However, her child had
    left the apartment and gone to a nearby police station. Law
    enforcement arrived shortly thereafter and knocked on the
    apartment door. Jessica was initially uncooperative with the
    officers in an effort to protect Bedford, and she believed that
    her injury was an “accident” that Bedford did not intend to
    cause. Bedford eventually came outside of the apartment and
    was taken into custody. Law enforcement subsequently inter-
    viewed Jessica, and she told the officers that she had “pushed
    . . . Bedford and . . . he pushed [her] back,” causing Jessica to
    fall and be injured.
    Jessica’s son, age 10, testified about an argument Bedford
    and Jessica had about his having a piece of cake “too early.”
    Bedford and Jessica went into their bedroom, where Jessica’s
    son, in the dining room, “heard them fighting.” He heard
    Jessica crying, and then he heard “a big boom by the wall.”
    He started crying and “ran to some people” and then to a store,
    from which someone “walked [him] to the police station.”
    Jessica’s son testified that he went to the police station because
    he “knew somebody was hurt because [his] mom was crying”
    and that “when [he] got back, [Jessica] had a black eye and a
    busted lip,” neither of which she had prior to going into the
    bedroom with Bedford.
    Bedford described that as he and Jessica argued, he told her
    that he was “tired of arguing with her and . . . was leaving.”
    He began packing his possessions, and Jessica “pushed [him]
    into the [bedroom] door” to “stop [him] from leaving.” As this
    occurred, she asked Bedford “to stop” and not leave and also
    said to Bedford that he “wasn’t going anywhere.” He tried to
    continue packing, but Jessica “pushed [him] and pinned [him]
    against” the bedroom door and shoes that were on a shelf fell
    to the floor. Bedford said that at this point, he “didn’t shove”
    Jessica, but, rather, he “pushed [her] off of [him] and she
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    tripped over one of [his] shoes” and hit her face on the nearby
    plastic “bed base.” Bedford testified, “I helped her up. I felt
    that was my fault. Even so, I didn’t mean to hurt her.” After
    the police officers knocked on the apartment door, Jessica
    went out and spoke to them while Bedford remained in the
    apartment. Jessica texted Bedford regarding her conversation
    with the officers, and Bedford briefly considered “attempt[ing]
    to elude the police” because he had warrants for unpaid fines.
    However, after looking out the bathroom window and realizing
    how far the fall was, he did not think that the fines were worth
    “losing [his] life” or “break[ing his] neck” over, so he “even-
    tually . . . did come out.” While being arrested, Bedford told
    Jessica he loved her and he “believe[d] that [he] even apolo-
    gized to her again.”
    On cross-examination, Bedford acknowledged that he was
    “evasive” and initially “lied to law enforcement” after the
    October 2019 incident. He acknowledged telling law enforce-
    ment that Jessica had no injuries and had no reason to have
    any injuries.
    3. Jail Phone Call and
    Other Events
    Following his arrest, Bedford was jailed from October 5,
    2019, until December 3. Throughout this period, Bedford and
    Jessica were in frequent communication through letters and
    phone calls. Bedford testified he made “over 200 calls” to
    Jessica during that time. The phone call at issue in this appeal
    occurred on October 7 between Bedford and Jessica. According
    to Bedford, he was prohibited from calling Jessica at the time
    as a result of the incident on October 5, in light of which pro-
    hibition Jessica instructed him to call her grandmother’s home
    phone number in order to circumvent the restriction. Bedford
    told Jessica “not [to] come to court” if the State subpoenaed
    her; Jessica responded by indicating that if she were subpoe-
    naed, she would testify that no domestic assault had occurred
    and would not otherwise cooperate with the prosecution.
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    Jessica further referenced a letter she had sent to the county
    attorney’s office in which she described that her reports to law
    enforcement were not legitimate, and she stated that she would
    “take a false reporting charge” if needed. At the conclusion of
    the phone call, Bedford told Jessica that he “need[ed her] to
    stay focused” and to “[m]ake sure [she] stays on this shit” with
    respect to the court proceedings.
    The letter referenced by Jessica, received as exhibit 7 at trial,
    described that the reports she had made to police were a result
    of her anger toward Bedford. According to the letter, Bedford
    had not assaulted her during the incidents on July 19 and
    October 5, 2019. Jessica wrote that she “would like to accept
    responsibility” for the July 19 incident and that she had falsely
    reported to the responding officer out of anger that Bedford
    had assaulted her. With respect to the October 5 incident, the
    letter described an argument consistent with Bedford’s account.
    Jessica further wrote that she had told the responding officers
    her injury was an accident resulting from her instigation and
    escalation of the argument, but that the officers did not believe
    her and told her “they would take [her] kid” away and “take
    [her] to jail if [she] didn’t tell them the truth.” Jessica testified
    at trial that she had “backdated” this letter to October 4 and
    that she actually wrote this letter “sometime after November
    12” after a conversation with Bedford. Jessica stated at trial
    that the purpose of this letter was so Bedford’s “charges
    would be dropped,” and she indicated that its contents were
    not accurate.
    Following his release on December 3, 2019, Bedford and
    Jessica lived together for approximately 2 months. The two
    were married later in December, and they remained together
    until late January 2020, when Bedford moved out of the resi-
    dence. Bedford explained that he left because the relationship
    had not improved since the October 2019 incident. In March
    2020, Bedford returned to Nebraska and began a relationship
    with another woman, and he moved in with her shortly after
    his return. Bedford and Jessica continued to communicate
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    following his return to Nebraska, although the relationship
    became significantly more strained.
    4. April 2020 Incident
    Regarding the events of April 4, 2020, the accounts of
    Bedford and Jessica substantially diverge. On that date, Jessica
    was at her grandmother’s house with her eldest son and her
    grandmother was also present. According to Jessica, she and
    Bedford had arranged for a meeting at her grandmother’s
    home in order for Jessica to give Bedford $60 and to return
    his car’s key fob. When Bedford arrived, Jessica met him on
    the front porch of her grandmother’s home. Bedford appeared
    “upset,” and he “pulled [her] into the garage” attached to the
    residence. The two began to argue, and the argument became
    physical. Jessica recalled that Bedford began to “choke[]” her
    as he was talking to her, and “he told [her] that he would leave
    [her] rotting in the garage.” She then described that she fell
    to the ground and Bedford began striking her. Bedford then
    left the residence, and Jessica went into the house “crying and
    screaming” and told her grandmother to call the police. The
    record indicates that the phone call to the 911 emergency dis-
    patch service occurred at 1:22 p.m. and that “[n]o more than
    five minutes” had passed between the assault and the 911 call.
    Law enforcement arrived shortly thereafter, and officers inter-
    viewed Jessica and took photographs of her injuries. Bedford
    and Jessica texted each other on a few occasions after this
    incident, although Jessica considered their relationship to be
    over at the time.
    Bedford, however, denied ever meeting with Jessica that
    day. Instead, he described that he spent the entire day with
    his new girlfriend’s family. Bedford’s girlfriend had purchased
    a new video game console for her son the day before, using
    her “unemployment card.” On the morning of April 4, 2020,
    Bedford cooked breakfast for his girlfriend and her children,
    and after finishing breakfast “close to noon,” Bedford played
    video games with his girlfriend’s son for “three or four, maybe
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    five hours.” During this time, Bedford “never left the house,”
    and he described his vehicle was also “blocked in” by his
    girlfriend’s vehicle, rendering him unable to leave. Bedford
    made a phone call to Jessica around 1 p.m. concerning his
    “SNAP card” and the difficulties he was having in acquiring
    it. According to Bedford, Jessica denied any involvement, and
    he “stopped talking to her” after her denial because he “knew
    better.” They exchanged a couple more text messages, in which
    Bedford stated that he would “put a security lock” on his
    account because Jessica “knew too much of [his] information.”
    Afterward, Jessica attempted to call Bedford multiple times,
    but he did not answer. Bedford subsequently cooked dinner
    for his girlfriend and her children, and he did not otherwise
    leave the residence throughout the remainder of the evening
    after dinner.
    5. Verdicts and Sentencing
    We will discuss other evidence received at trial in our analy-
    sis below when relevant to the errors assigned by Bedford.
    After deliberation, the jury found Bedford guilty of counts
    1 through 3 and count 5, as well as not guilty of count 4. The
    district court subsequently entered judgment on the jury’s
    verdicts.
    A sentencing hearing was held on July 16, 2021. The district
    court found Bedford to be a habitual criminal and sentenced
    Bedford as follows: 10 to 12 years’ imprisonment on count 1,
    2 to 3 years’ imprisonment on count 2, 2 to 3 years’ imprison-
    ment on count 3, and 10 to 12 years’ imprisonment on count
    5. The court ordered that the sentences on counts 1 and 5 be
    served concurrently; the court further ordered that the sentences
    on counts 2 and 3 be served consecutively to those on counts
    1 and 5 and to each other. Bedford was given 486 days’ credit
    for time served. A written order consistent with the court’s oral
    pronouncement was entered that same day.
    Bedford appeals.
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    III. ASSIGNMENTS OF ERROR
    Bedford claims, reordered, that (1) the district court erred
    in denying trial counsel’s attempt to impeach Jessica at trial,
    (2) the court erred in refusing his proposed self-defense jury
    instruction, and (3) the evidence was insufficient to sustain his
    convictions. He further raises five separate claims of ineffec-
    tive assistance of trial counsel.
    IV. STANDARD OF REVIEW
    [1,2] In proceedings where the Nebraska Evidence Rules
    apply, the admissibility of evidence is controlled by the
    Nebraska Evidence Rules and judicial discretion is involved
    only when the rules make discretion a factor in determining
    admissibility. State v. Figures, 
    308 Neb. 801
    , 
    957 N.W.2d 161
    (2021). Where the Nebraska Evidence Rules commit the evi-
    dentiary question at issue to the discretion of the trial court,
    an appellate court reviews the admissibility of evidence for an
    abuse of discretion. State v. Figures, 
    supra.
    [3,4] In order to establish reversible error from a court’s
    refusal to give a requested instruction, an appellant has the
    burden to show that (1) the tendered instruction is a correct
    statement of law, (2) the tendered instruction is warranted
    by the evidence, and (3) the appellant was prejudiced by
    the court’s refusal to give the tendered instruction. State v.
    Urbano, 
    256 Neb. 194
    , 
    589 N.W.2d 144
     (1999). Regarding
    matters of law, an appellate court has an obligation to reach
    a conclusion independent of that of the trial court in a judg-
    ment under review. State v. Kinser, 
    252 Neb. 600
    , 
    567 N.W.2d 287
     (1997).
    [5] In reviewing a criminal conviction for a sufficiency of
    the evidence claim, whether the evidence is direct, circum-
    stantial, or a combination thereof, the standard is the same:
    An appellate court does not resolve conflicts in the evidence,
    pass on the credibility of witnesses, or reweigh the evidence,
    as such matters are for the finder of fact. The relevant question
    for an appellate court is whether, after viewing the evidence in
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    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. Figures, 
    supra.
    [6] Whether a claim of ineffective assistance of trial coun-
    sel may be determined on direct appeal is a question of law.
    In reviewing claims of ineffective assistance of counsel on
    direct appeal, an appellate court decides only whether the
    undisputed facts contained within the record are sufficient to
    conclusively determine whether counsel did or did not provide
    effective assistance and whether the defendant was or was not
    prejudiced by counsel’s alleged deficient performance. State v.
    Blaha, 
    303 Neb. 415
    , 
    929 N.W.2d 494
     (2019).
    V. ANALYSIS
    1. Denial of Opportunity
    to Impeach Witnesses
    Bedford claims that the district court denied him “his con-
    stitutional right to confrontation because [it] denied him the
    opportunity to properly impeach [Jessica and her son] at trial.”
    Brief for appellant at 27. Bedford alleges that he was “funda-
    mentally prejudiced” by the “trial court’s rulings,” insofar as
    he was “unable to clearly demonstrate to the jury the inconsist­
    ent statements [given by Jessica and her son] to further prove
    his innocence,” and that had he been given the opportunity to
    impeach these witnesses, the jury would have had “a legitimate
    reason to question the validity of their testimony.” 
    Id.
    [7,8] Besides not mentioning Jessica’s son in the section
    of his brief assigning errors, Bedford’s alleged error is prob-
    lematic in that it does not specifically identify which of the
    “trial court’s rulings,” 
    id.,
     were erroneous. The district court
    made multiple rulings regarding trial counsel’s impeachment
    of Jessica and her son; some objections were sustained, while
    others were overruled. Bedford provides no description of
    which particular ruling or rulings he claims violated his rights
    in this case. An alleged error must be both specifically assigned
    and specifically argued in the brief of the party asserting the
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    error to be considered by an appellate court. State v. Figures,
    
    308 Neb. 801
    , 
    957 N.W.2d 161
     (2021). It is not the duty of a
    court to scour the record in search of facts that might support
    a claim. In re App. No. C-4973 of Skrdlant, 
    305 Neb. 635
    , 
    942 N.W.2d 196
     (2020). Bedford has not argued this assigned error
    with the required specificity, and we therefore do not address
    this argument further.
    2. Failure to Instruct Jury
    on Self-Defense
    A formal jury instruction conference took place on the
    morning of June 10, 2021, before the jury was seated for clos-
    ing arguments. Bedford’s trial counsel requested “the standard
    jury instruction on self-defense” as to count 3, third degree
    domestic assault, stemming from the October 5, 2019, incident;
    no copy of a proposed instruction is contained in our record.
    On appeal, Bedford claims the proposed instruction “was a
    correct statement of the law,” as it was “drawn directly from
    
    Neb. Rev. Stat. § 28-1409
     (2016) and NJI2d Crim. 7.1.” Brief
    for appellant at 35. Ordinarily, the failure to include a proposed
    instruction would preclude our review, but because our consid-
    eration of this issue turns on the evidence rather than the word-
    ing of the instruction itself, we proceed to address it. Bedford
    claims that the district court erred in overruling his request for
    a self-defense jury instruction as to the October 2019 domestic
    assault offense.
    Pursuant to § 28-323(1), a person commits third degree
    domestic assault if he or she “(a) [i]ntentionally and knowingly
    causes bodily injury to his or her intimate partner” or “(b)
    [t]hreatens an intimate partner with imminent bodily injury.”
    Bedford points to his testimony that Jessica had pushed and
    pinned him against the bedroom door, preventing him from
    leaving the room. Bedford said that in response, he “didn’t
    shove” Jessica, but “pushed her off of [him],” and that she
    tripped over a shoe and hit her face on the nearby plastic bed
    base. Trial counsel asserted that Bedford’s testimony warranted
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    a self-defense instruction as to this incident. However, the dis-
    trict court agreed with the State’s position at the jury instruc-
    tion conference that the facts did not “rise to the level of need-
    ing the self-defense instruction.”
    On appeal, Bedford argues that his testimony regarding the
    October 2019 incident “satisfied the initial burden of a defend­
    ant to request a self-defense instruction.” Brief for appellant at
    36. He describes that “his initial shove of [Jessica] was neces-
    sary to protect himself after she cornered him and pushed him
    up against the wall.” 
    Id.
     Citing to State v. Kinser, 
    252 Neb. 600
    , 
    567 N.W.2d 287
     (1997), he asserts that the district court
    improperly decided a factual issue for the jury by refusing his
    proposed instruction, and he notes that he needed only to pro-
    duce “a slight amount of evidence” to warrant a self-defense
    instruction. Brief for appellant at 35.
    To establish reversible error from a court’s refusal to give
    a requested instruction, an appellant has the burden to show
    that (1) the tendered instruction is a correct statement of law,
    (2) the tendered instruction is warranted by the evidence,
    and (3) the appellant was prejudiced by the court’s refusal to
    give the tendered instruction. State v. Kinser, 
    supra.
     As noted
    above, to the extent the “standard jury instruction” requested
    by Bedford’s trial counsel would have been NJI2d Crim. 7.1,
    Bedford’s proposed instruction would have been a correct
    statement of the law. We therefore turn to the second factor
    articulated in Kinser, namely whether the tendered instruction
    was warranted by the evidence.
    [9-12] Self-defense is a statutorily affirmative defense in
    Nebraska. State v. France, 
    279 Neb. 49
    , 
    776 N.W.2d 510
    (2009) (defendant has burden of going forward with evi-
    dence of self-defense, after which State has burden to prove
    defendant did not act in self-defense). In the context of a
    self-defense instruction, a trial court must instruct the jury on
    the issue of self-defense when there is any evidence adduced
    which raises a legally cognizable claim of self-defense. See 
    id.
    As set forth in 
    Neb. Rev. Stat. § 28-1409
    (1) (Reissue 2016),
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    the use of force against another person is justifiable “when the
    actor believes that such force is immediately necessary for the
    purpose of protecting himself [or herself] against the use of
    unlawful force by such other person.” To successfully assert
    the claim of self-defense, one must have a both reasonable
    and good faith belief in the necessity of using force. State v.
    Kinser, 
    supra.
     The force used in defense must also be justified
    under the circumstances. See 
    id.
    [13-15] A trial court is not required to give an instruction
    where there is insufficient evidence to prove the facts claimed;
    however, it is not the province of the trial court to decide fac-
    tual issues even when it considers the evidence produced in
    support of one party’s claim to be weak or doubtful. 
    Id.
     It is
    only when the evidence does not support a legally cognizable
    claim of self-defense, or the evidence is so lacking in proba-
    tive value as to constitute a failure of proof, that a trial court
    may properly refuse to instruct a jury on a defendant’s theory
    of self-defense. 
    Id.
     A defendant need only produce a slight
    amount of evidence to satisfy this initial burden of raising the
    issue of self-defense. 
    Id.
     That this slight amount of evidence
    may ultimately be insufficient for the defendant to prevail on
    his or her claim of self-defense does not bear on whether a
    self-defense instruction should have been given by the trial
    court. See 
    id.
    [16] However, only where the jury could reasonably find
    that the defendant’s use of force was justified should the trial
    court instruct the jury on self-defense. State v. Case, 
    304 Neb. 829
    , 
    937 N.W.2d 216
     (2020). “It is not enough to merely
    show ‘any evidence’ of self-defense to support an instruction
    thereon. Instead, the defendant must show ‘any evidence in
    support of a legally cognizable theory of self-defense.’” Id.
    at 843, 937 N.W.2d at 226 (quoting State v. Kinser, 
    252 Neb. 600
    , 
    567 N.W.2d 287
     (1997)). Further, the Nebraska Supreme
    Court has interpreted § 28-1409 to mean that “to successfully
    assert the claim of self-defense, a defendant must have a rea-
    sonable and good faith belief in the necessity of using force
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    and the force used in defense must be immediately necessary
    and justified under the circumstances.” State v. Case, 
    304 Neb. at 843
    , 937 N.W.2d at 226.
    The State contends that the “evidence and testimony make
    clear that there was no established reasonable and good faith
    belief on the part of Bedford that force was immediately nec-
    essary nor justified during the October 5, 2019[,] assault.”
    Brief for appellee at 43. The State argues that Bedford “has
    not articulated why shoving [Jessica] was ‘necessary to pro-
    tect himself’” and that Bedford failed to sufficiently establish
    a claim of self-defense, because “he did not testify as to the
    immediate threat posed by [Jessica], prior threats followed
    with physical harm, weapons held by [Jessica], injuries caused
    by [Jessica], or what he believed she intended to do if he did
    not make physical contact with her.” Id.
    However, we are not persuaded that Bedford failed to allege
    sufficient facts to warrant a jury instruction on self-defense.
    Bedford’s testimony, as well as exhibit 7, indicated that dur-
    ing the incident on October 5, 2019, Jessica pushed Bedford
    against the bedroom door and prevented him from leaving
    the residence with physical force, and that Bedford thereafter
    “pushed [Jessica] off of [him],” causing her to fall and be
    injured. There was no evidence adduced that the force used by
    Bedford to push Jessica away was disproportionate to the force
    initially used by Jessica to “push[]” and “pin[]” Bedford to the
    bedroom door. Bedford’s testimony and exhibit 7 also indicate
    that Jessica was angry and otherwise emotionally charged dur-
    ing this incident and that Bedford was simply attempting to
    leave the residence. From this evidence, Bedford has articu-
    lated a cognizable claim that he held a reasonable belief that
    the force used to push Jessica away was immediately necessary
    and justified to allow him to leave the residence.
    The State points to evidence conflicting with Bedford’s
    account that “strongly suggested that the physicality of the
    argument turned assault was more one-sided than Bedford
    claims and favored Bedford,” brief for appellee at 44, but this
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    argument, as well as those previously described, only empha-
    sizes the propriety of a self-defense instruction in this case.
    That other evidence may have conflicted with or undermined
    Bedford’s account is a question for the jury to resolve, not to
    be deprived by the district court’s refusal to grant the proposed
    instruction. See State v. Kinser, 
    supra
     (questions of fact raised
    by defendant’s account that defendant acted in self-defense
    were for jury to resolve).
    Two separate bases in support of the conclusion that the
    self-defense instruction was not warranted here are articulated
    in the concurrence in part and in part dissent. The first is that
    Bedford’s failure to testify that his use of force was neces-
    sary to protect himself against a perceived danger to himself
    from Jessica resulted in a record which was insufficient to
    support a self-defense instruction. The second basis is that the
    ­self-defense instruction would conflict with Bedford’s theory
    of the case, that the injury was unintentional, and should
    not be given in such situations. We will address those mat-
    ters independently.
    There is no dispute that Bedford did not explicitly testify
    that his use of force to push Jessica away when she had him
    “pinned” was necessary to protect himself against a perceived
    danger. But as the Nebraska Supreme Court stated in State v.
    Graham, 
    234 Neb. 275
    , 279, 
    450 N.W.2d 673
    , 676 (1990), the
    general rule is:
    A defendant is entitled to have the jury instructed on
    his or her theory of defense if there is any evidence to
    support it. State v. Clayburn, 
    223 Neb. 333
    , 
    389 N.W.2d 314
     (1986).
    [The defendant] did not testify. The trial court refused
    the self-defense instruction because it apparently believed
    that a defendant must testify in order to establish his or
    her good-faith belief that force was necessary. However,
    this is not the rule in this state. As expressed in Clayburn,
    it is necessary only that there be any evidence to support
    a theory of self-defense.
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    This case is certainly different from Graham, in that in
    this case, Bedford did testify and could have testified to his
    good faith belief that his use of force to push Jessica off him
    was necessary to protect himself. But Graham stands for the
    proposition that his failure to utter those specific words does
    not render his request for the instruction necessarily fatal.
    The issue becomes whether the evidence, offered without the
    specific expression of the good faith belief, is sufficient for a
    jury to reasonably find that the use of force by the defendant
    was justified. See State v. Kinser, 
    252 Neb. 600
    , 
    567 N.W.2d 287
     (1997) (evidence necessary to raise affirmative defense
    may be adduced either by defendant’s witnesses or in State’s
    case in chief without necessity of defendant’s presenting evi-
    dence). By his testimony, Bedford described that his use of
    force against Jessica was a result of her use of force against
    him; that is, her physically having him pinned, which resulted
    in his use of force to extricate himself. Based on the Nebraska
    Supreme Court’s statement that a defendant need only adduce
    a slight amount of evidence to satisfy the initial burden of
    raising the issue of self-defense, we find this description by
    Bedford adequate to overcome that hurdle. As the Nebraska
    Supreme Court noted in State v. Kinser, 
    252 Neb. at 607
    ,
    
    567 N.W.2d at 292
    , “as a practical matter, a slight amount
    of evidence may not be enough to ultimately prevail on the
    defense of self-defense. A defendant is not required to plead
    and give notice of an affirmative defense of justification or
    self-defense.” We believe Bedford’s description of the events
    which took place during the October 2019 incident, coupled
    with the additional evidence presented at trial, was sufficient
    to create a factual question for the jury on whether his use
    of force was justified under the elements of the self-defense
    instruction. See State v. Warren, 
    9 Neb. App. 60
    , 
    608 N.W.2d 617
     (2000) (defendant’s claim of self-defense is question of
    fact for jury; jury, not trial court, must resolve multiple factual
    questions concerning whether defendant acted in self-defense
    within meaning of law).
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    Nor are we persuaded by the second argument in the con-
    currence in part and in part dissent that Bedford’s statements
    that he did not intend to harm Jessica with his push was dis-
    positive of the issue. In support of that proposition, we are
    directed to State v. Faust, 
    265 Neb. 845
    , 
    660 N.W.2d 844
    (2003), disapproved on other grounds, State v. McCulloch, 
    274 Neb. 636
    , 
    742 N.W.2d 727
     (2007), as well as State v. Brown,
    
    220 Neb. 849
    , 
    374 N.W.2d 28
     (1985), and State v. Canby, 
    217 Neb. 461
    , 
    348 N.W.2d 900
     (1984). In Faust, the Nebraska
    Supreme Court held that “when the defendant’s theory of the
    case is that he or she did not commit the crime [or that the
    force toward the victim was accidental], the court risks con-
    fusing or misleading the jury” by tendering the self-defense
    instruction. 
    265 Neb. at 879
    , 
    660 N.W.2d at 874
    . But we find
    those cases to be distinguishable. In those cases, the defendant
    denied intentionally using force at all in connection with the
    charged crime. Here, Bedford’s theory was that he intention-
    ally used force to repel Jessica, but that he did not intend to
    injure her with the force he used and that the force he used
    was in response to the force that Jessica was applying to him.
    Under those circumstances, we do not find the self-defense
    instruction mutually exclusive of Bedford’s theory that he
    intended no injury by his intentional use of force. We find that
    the evidence received at trial could have supported Bedford’s
    theory of self-defense such that a self-defense instruction was
    warranted. In light of this evidence, the district court should
    have instructed the jury on self-defense as requested.
    [17-19] However, our analysis does not end here. We must
    next determine whether Bedford was prejudiced by the court’s
    refusal to so instruct the jury. Jury instructions are subject
    to the harmless error rule, and an erroneous jury instruction
    requires reversal only if the error adversely affects the substan-
    tial rights of the complaining party. State v. Dady, 
    304 Neb. 649
    , 
    936 N.W.2d 486
     (2019). Harmless error review looks to
    the basis on which the trier of fact actually rested its verdict;
    the inquiry is not whether in a trial that occurred without the
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    error a guilty verdict surely would have been rendered, but,
    rather, whether the actual guilty verdict rendered in the ques-
    tioned trial was surely unattributable to the error. 
    Id.
     It is the
    duty of the trial judge to instruct the jury on the pertinent law
    of the case, whether requested to do so or not, and an instruc-
    tion or instructions which by the omission of certain elements
    have the effect of withdrawing from the jury an essential issue
    or element in the case are prejudicially erroneous. State v.
    Kinser, 
    252 Neb. 600
    , 
    567 N.W.2d 287
     (1997).
    Bedford argues that he was prejudiced in this case because
    he “did not deny that he pushed [Jessica], but rather asserted
    that such actions were justified in self-defense. Without author-
    ity to consider self-defense, the jury was left with no choice but
    to find” Bedford guilty on count 3. Brief for appellant at 38.
    While we note that the jury could have found that Bedford
    pushed Jessica without intentionally and knowingly causing
    her bodily injury or that Bedford did not threaten Jessica with
    imminent bodily injury, see § 28-323(1)(a) and (b), we agree
    that the foreclosure of the possibility for the jury to find that
    Bedford pushed Jessica in self-defense was not harmless error.
    See State v. Kinser, 
    252 Neb. at 609
    , 
    567 N.W.2d at 293
     (“[t]he
    effect of the trial court’s refusal to instruct the jury concern-
    ing [defendant’s] claim of self-defense was to withdraw from
    the jury consideration of an essential issue in the case, that
    being the State’s burden to prove that [defendant] did not act
    in self-defense”). Given the record in this case, we cannot say
    that the guilty verdict on count 3 was surely unattributable to
    the district court’s failure to instruct the jury on self-defense.
    Accordingly, we find that the district court’s failure to instruct
    the jury on Bedford’s self-defense claim as related to count 3
    constituted reversible error.
    3. Double Jeopardy and Sufficiency
    of Evidence for Count 3
    [20,21] Upon finding reversible error in a criminal trial,
    an appellate court must determine whether the total evidence
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    admitted by the district court, erroneously or not, was suffi-
    cient to sustain a guilty verdict. State v. Draper, 
    289 Neb. 777
    ,
    
    857 N.W.2d 334
     (2015). If it was not, then double jeopardy
    forbids a remand for a new trial. 
    Id.
     Accordingly, having found
    reversible error in the district court’s failure to instruct the jury
    on Bedford’s self-defense claim as related to count 3, we must
    determine whether the evidence admitted was sufficient to sus-
    tain Bedford’s conviction for third degree domestic assault on
    October 5, 2019.
    As alleged in the amended information and pursuant to
    statute, a person commits third degree domestic assault if he
    or she “[i]ntentionally and knowingly causes bodily injury to
    his or her intimate partner,” § 28-323(1)(a), or “[t]hreatens an
    intimate partner with imminent bodily injury,” § 28-323(1)(b).
    Evidence introduced at trial indicated that Bedford and Jessica
    began to argue in their bedroom on October 5, 2019, and this
    argument escalated into a physical confrontation. Jessica’s son
    also testified that he heard a “big boom” from the bedroom as
    well as Jessica “crying” and that he believed it necessary to
    get help from the police. Upon arriving, officers photographed
    Jessica’s injuries, and it was confirmed that these injuries did
    not exist prior to the argument. We also note the testimony of
    the officers indicated that Bedford was attempting to elude
    law enforcement. While there is conflicting evidence regard-
    ing this incident, it is not the role of this court to resolve such
    conflicts. See State v. Figures, 
    308 Neb. 801
    , 
    957 N.W.2d 161
     (2021). Rather, we view the evidence in the light most
    favorable to the prosecution. See 
    id.
     We therefore find that
    the evidence was sufficient to sustain Bedford’s conviction
    on count 3, and double jeopardy does not preclude a new trial
    concerning count 3.
    [22] Accordingly, we reverse Bedford’s conviction and sen-
    tence on count 3 and remand the cause for new trial. This
    holding is limited solely to count 3. See Beyl v. State, 
    165 Neb. 260
    , 
    85 N.W.2d 653
     (1957) (appellate court may reverse
    criminal judgment in part and affirm judgment in part where
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    reversed conviction is separate and distinct from remaining
    convictions).
    4. Sufficiency of Evidence for
    Remaining Convictions
    Bedford claims the State failed to meet its burden of proof
    as to all offenses charged; however, other than arguing that he
    presented an alibi defense “through the testimony of multiple
    witnesses” for the April 2020 incident, he does not specifically
    address the failure of proof as to each conviction. Brief for
    appellant at 34. Nevertheless, we will consider whether, after
    viewing the evidence in the light most favorable to the pros-
    ecution, any rational trier of fact could have found the essential
    elements of the crime beyond a reasonable doubt. See State v.
    Figures, 
    supra.
     Having previously addressed count 3, we dis-
    cuss only the remaining counts here.
    (a) Counts 1 and 2
    Bedford was convicted of one count of assault by strangula-
    tion, count 1, and one count of third degree domestic assault,
    count 2, in connection with the incident on April 4, 2020.
    As noted, he argues only that he “presented an alibi defense
    through the testimony of multiple witnesses [who] testified
    that he had been at their house the day of” the April 4 incident.
    Brief for appellant at 34.
    Under § 28-310.01(1), a person commits an assault by
    strangulation if the person knowingly and intentionally
    “[i]mpedes the normal breathing or circulation of the blood
    of another person by applying pressure on the throat or neck
    of the other person” or “[i]mpedes the normal breathing
    of another person by covering the mouth and nose of the
    person.” Pursuant to § 28-323(1), a person commits third
    degree domestic assault if he or she “(a) [i]ntentionally and
    knowingly causes bodily injury to his or her intimate part-
    ner” or “(b) [t]hreatens an intimate partner with imminent
    bodily injury.”
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    At trial, Jessica and her grandmother stated that they
    observed Bedford come to the house on April 4, 2020. Jessica
    testified that Bedford pulled her into the garage and that they
    began to argue. This argument escalated, and Bedford began
    to “choke[]” Jessica before she fell to the ground due to lack
    of air. Jessica then described that Bedford began to strike her
    while she was still on the ground and that he left at some point
    thereafter. After her grandmother called 911, law enforcement
    photographed injuries to Jessica’s neck and chest area that,
    according to a licensed registered nurse who viewed the photo-
    graphs, were “consistent with strangulation.” Although Bedford
    identifies that his account of the April 4 incident conflicts
    with Jessica’s, such conflicts are to be resolved by the jury.
    See State v. Figures, 
    supra.
     Viewing the evidence in the light
    most favorable to the State, we find that there was sufficient
    evidence to sustain Bedford’s convictions for assault by stran-
    gulation and third degree domestic assault in connection with
    the April 2020 incident.
    (b) Count 5
    [23] Bedford was convicted of tampering with a witness.
    Pursuant to § 28-919(1):
    A person commits the offense of tampering with a wit-
    ness or informant if, believing that an official proceeding
    or investigation of a criminal or civil matter is pending
    or about to be instituted, he or she attempts to induce or
    otherwise cause a witness or informant to:
    (a) Testify or inform falsely;
    (b) Withhold any testimony, information, document, or
    thing;
    (c) Elude legal process summoning him or her to tes-
    tify or supply evidence; or
    (d) Absent himself or herself from any proceeding
    or investigation to which he or she has been legally
    summoned.
    A defendant’s reasons for attempting to induce a witness to
    commit any of the acts enumerated in § 28-919(1) are not
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    relevant. State v. Benson, 
    305 Neb. 949
    , 
    943 N.W.2d 426
    (2020).
    On October 7, 2019, a phone call between Bedford and
    Jessica was recorded while Bedford was in jail. This phone
    call occurred despite Bedford’s prohibition from contacting
    Jessica due to his arrest. A recording of the call was received
    at trial, and in it, Bedford instructed Jessica “not [to] come to
    court” if she were subpoenaed. Bedford also told Jessica that
    he “needed her to stay focused” and to “[m]ake sure [she] stays
    on this shit,” and according to her testimony, Jessica “[w]hole-
    heartedly” believed that Bedford was telling her to “continue to
    work on getting this case dropped.” We also note Jessica’s tes-
    timony indicating that she wrote exhibit 7 “[b]ecause [Bedford]
    asked [her] to” in order to help him get the charges “dropped.”
    From this record, a rational fact finder could find that the State
    proved the elements of tampering with a witness beyond rea-
    sonable doubt. Accordingly, we find the evidence sufficient to
    sustain Bedford’s conviction.
    5. Ineffective Assistance of Counsel
    [24] When a defendant’s trial counsel is different from his
    or her counsel on direct appeal, the defendant must raise on
    direct appeal any issue of trial counsel’s ineffective perform­
    ance which is known to the defendant or is apparent from
    the record. State v. Blaha, 
    303 Neb. 415
    , 
    929 N.W.2d 494
    (2019). Bedford’s counsel on direct appeal is different from his
    trial counsel.
    [25,26] Appellate courts have generally reached ineffective
    assistance of counsel claims on direct appeal only in those
    instances where it was clear from the record that such claims
    were without merit, or in the rare case where trial counsel’s
    error was so egregious and resulted in such a high level of
    prejudice that no tactic or strategy could overcome the effect of
    the error, which effect was a fundamentally unfair trial. State
    v. Sundquist, 
    301 Neb. 1006
    , 
    921 N.W.2d 131
     (2019). An inef-
    fective assistance of counsel claim made on direct appeal can
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    be found to be without merit if the record establishes that trial
    counsel’s performance was not deficient or that the appellant
    could not establish prejudice. 
    Id.
    [27-29] Generally, to prevail on a claim of ineffective
    ­assistance of counsel under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant
    must show that his or her counsel’s performance was deficient
    and that this deficient performance actually prejudiced the
    defendant’s defense. State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
     (2019). To show that counsel’s performance was deficient, a
    defendant must show that counsel’s performance did not equal
    that of a lawyer with ordinary training and skill in criminal
    law. 
    Id.
     To show prejudice, the defendant must demonstrate
    a reasonable probability that but for counsel’s deficient per­
    formance, the result of the proceeding would have been differ-
    ent. 
    Id.
     A reasonable probability is a probability sufficient to
    undermine confidence in the outcome.
    With these governing principles in mind, we turn now to
    address Bedford’s claims of ineffective assistance of counsel.
    (a) Failure to File Motion for Discharge
    on Speedy Trial Grounds
    Bedford alleges that his trial counsel was ineffective for
    failing to file a motion for absolute discharge on speedy trial
    grounds. He argues that “trial counsel did not protect his
    right to a speedy trial by failing to file and litigate a motion
    for discharge for violation of his speedy trial rights.” Brief
    for appellant at 29. He then references the federal and state
    Constitutions as guaranteeing the right to a speedy trial and
    cites to 
    Neb. Rev. Stat. § 29-1207
    (1) (Reissue 2016) for the
    requirement that a defendant “shall be brought to trial within
    six months.”
    [30] When a defendant alleges he or she was prejudiced by
    trial counsel’s failure to properly assert the defendant’s speedy
    trial rights, the court must consider the merits of the defend­
    ant’s speedy trial rights under Strickland. State v. Collins, 299
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    Neb. 160, 
    907 N.W.2d 721
     (2018). Only if a motion would
    have resulted in the defendant’s absolute discharge, thus bar-
    ring a later trial and conviction, could the failure to move for
    discharge be deemed ineffective assistance. 
    Id.
    (i) Statutory Speedy Trial Rights
    To calculate the deadline for trial for speedy trial purposes,
    a court must exclude the day the State filed the information,
    count forward 6 months, back up 1 day, and then add any time
    excluded under § 29-1207(4). The original information was
    filed August 13, 2020. Therefore, the speedy trial deadline
    before adding any excluded time was February 13, 2021.
    We note that there were three continuances ordered dur-
    ing this case. In an order entered on December 2, 2020, the
    district court first continued trial until February 1, 2021, as
    a result of the COVID-19 pandemic and related restrictions
    placed on the Lancaster County District Court. In an order
    entered on January 25, trial was again continued until April 5
    due to the COVID-19 pandemic. In an order entered on March
    25, the court granted the State’s motion to continue, finding
    good cause existed due to the State’s “call[ing] off [of] wit-
    nesses” in anticipation of a plea. Trial thereafter commenced
    on June 7.
    Section 29-1207(4)(c) excludes certain periods of delay
    “resulting from a continuance granted at the request of the
    prosecuting attorney,” and § 29-1207(4)(f) allows the exclu-
    sion of “[o]ther periods of delay not specifically enumerated
    in this section, but only if the court finds that they are for
    good cause.”
    On appeal, Bedford does not contest the propriety of these
    continuances or otherwise assert that the time periods should
    have been included. He simply asserts that he had “been incar-
    cerated for over a year” and “the matter was continued three
    times over a span of seven months.” Brief for appellant at 30.
    We note that the Nebraska Supreme Court has held in several
    cases that the COVID-19 pandemic provided sufficiently good
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    cause to continue trial. See, e.g., State v. Abernathy, 
    310 Neb. 880
    , 
    969 N.W.2d 871
     (2022); State v. Gnanaprakasam, 
    310 Neb. 519
    , 
    967 N.W.2d 89
     (2021); State v. Brown, 
    310 Neb. 224
    , 
    964 N.W.2d 682
     (2021). We further conclude, as the dis-
    trict court did, that the surprise placed upon the State by the
    changed plea also constituted good cause to continue trial. All
    such periods were therefore excludable under § 29-1207.
    After adding the excluded time, the deadline for trial was
    August 19, 2021. Trial commenced on June 7. Accordingly,
    trial counsel could not have been ineffective in failing to file a
    motion to discharge on statutory speedy trial grounds, as trial
    commenced prior to the statutory deadline.
    (ii) Constitutional Speedy Trial Rights
    [31] Determining whether a defendant’s constitutional right
    to a speedy trial has been violated requires a balancing test in
    which the courts must approach each case on an ad hoc basis.
    State v. Brooks, 
    285 Neb. 640
    , 
    828 N.W.2d 496
     (2013). That
    test involves consideration of four factors: (1) the length of
    delay, (2) the reason for the delay, (3) the defendant’s assertion
    of the right, and (4) prejudice to the defendant. State v. Brown,
    supra. None of these four factors standing alone is a necessary
    or sufficient condition to the finding of a deprivation of the
    right to a speedy trial. Id. Rather, the factors are related and
    must be considered together with other circumstances as may
    be relevant. Id.
    [32] Again, in support of this assigned error, Bedford refers
    only to his incarceration and the three continuances granted
    over 7 months as described above. As noted previously, trial
    commenced on June 7, 2021, which was before the speedy trial
    deadline. The delays in this case were due to the COVID‑19
    pandemic, as well as Bedford’s decision to enter a plea of not
    guilty after the State was informed that the matter would not
    progress to trial. We have already found these delays to be
    for good cause. On our examination of the record, we further
    find that Bedford has not shown prejudice that would have
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    warranted discharge. See State v. Betancourt-Garcia, 
    295 Neb. 170
    , 
    887 N.W.2d 296
     (2016) (in analyzing prejudice factor,
    there are three aspects: (1) preventing oppressive pretrial incar-
    ceration, (2) minimizing anxiety and concern of defendant, and
    (3) limiting possibility that defense will be impaired by dim-
    ming memories and loss of exculpatory evidence), abrogated
    on other grounds, State v. Guzman, 
    305 Neb. 376
    , 
    940 N.W.2d 552
     (2020). Although Bedford was incarcerated for a substan-
    tial period of time and expressed concern regarding his incar-
    ceration, nothing in the record indicated that Bedford’s defense
    was impaired, given the substantial detail with which Bedford
    and his witnesses testified. We conclude that Bedford’s consti-
    tutional speedy trial rights were not violated by the delays in
    this case. Accordingly, counsel could not have been ineffective
    in not filing a motion to discharge on speedy trial grounds that
    would have failed. See State v. Collins, 
    299 Neb. 160
    , 
    907 N.W.2d 721
     (2018).
    (b) Failure to Present Evidence
    Bedford contends that trial counsel was ineffective in fail-
    ing to “present evidence . . . in [counsel’s] possession at trial,”
    including “emails and text messages” from Jessica. Brief for
    appellant at 31. He asserts that “[t]hese emails and text mes-
    sages could have been used to impeach and . . . challenge”
    Jessica’s testimony. 
    Id.
     We conclude that this claim of deficient
    performance has not been sufficiently alleged.
    [33,34] When making an ineffective assistance of coun-
    sel claim on direct appeal, allegations of prejudice are not
    required. State v. Ash, 
    293 Neb. 583
    , 
    878 N.W.2d 569
     (2016).
    However, a defendant must make specific allegations of the
    conduct that he or she claims constitutes deficient performance.
    
    Id.
     Appellate counsel must present the claim with enough par-
    ticularity for (1) an appellate court to make a determination
    of whether the claim can be decided upon the trial record and
    (2) a district court later reviewing a petition for postconviction
    relief to be able to recognize whether the claim was brought
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    before the appellate court. 
    Id.
     General allegations that trial
    counsel performed deficiently or that trial counsel was ineffec-
    tive are insufficient to raise an ineffective assistance claim on
    direct appeal and thereby preserve the issue for later review.
    State v. Filholm, 
    287 Neb. 763
    , 
    848 N.W.2d 571
     (2014).
    Bedford offers this court no further description of which
    emails or text messages are applicable; nor does he provide any
    indication of their contents or how they could have been used
    to impeach Jessica’s testimony. It is not sufficient to simply
    allege that some messages were in counsel’s possession that
    may or may not have been relevant to the impeachment of
    Jessica’s testimony. See, State v. Hill, 
    298 Neb. 675
    , 699, 
    905 N.W.2d 668
    , 686 (2018) (ineffective assistance of trial counsel
    claim regarding counsel’s failure to depose “‘numerous other
    police officers’” without specifically alleging what testimony
    of these witnesses would have been is not sufficient allega-
    tion of deficient performance for purpose of preserving claim
    for postconviction review); State v. Ash, 
    supra
     (ineffective
    assistance of trial counsel claim alleging deficient performance
    based merely on trial counsel’s possession of psychiatric evalu-
    ation which was not offered or used at trial without further
    explanation as to what it contained, how it could have been
    used, or what it might have been offered to prove is not stated
    with sufficient particularity to preserve claim for postconvic-
    tion review).
    Accordingly, we find that Bedford has not alleged deficient
    performance with sufficient particularity, and therefore, this
    claim is not preserved for postconviction review.
    (c) Failure to Advise of Habitual
    Criminal Enhancement
    Bedford claims that trial counsel was ineffective in failing
    to properly advise him that “he could be facing two separate
    and potentially consecutive habitual criminal sentences” on
    counts 1 and 5. Brief for appellant at 31. He argues that he was
    prejudiced because he was not afforded “all the information to
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    make sound decisions about how to proceed with his case.” 
    Id.
    However, the district court imposed concurrent and identical
    sentences for counts 1 and 5, and only these two charges were
    subject to enhancement. Bedford further does not describe how
    his approach to the trial would have changed with the knowl-
    edge that count 1 was also subject to further enhancement. In
    light of the fact that Bedford was not actually impacted by the
    two “potentially consecutive habitual criminal sentences,” 
    id.,
    we find that he cannot show prejudice. This claim of ineffec-
    tive assistance therefore fails.
    (d) Failure to Select Fair and
    Impartial Jury
    Bedford asserts that trial counsel was ineffective in failing
    to select an impartial jury. He notes that “[m]ore than half of
    the jury was composed of females,” which composition he
    claims caused him prejudice because this was a case where
    “the victim was female . . . and the alleged perpetrator was
    a male.” Id. at 32. He also asserts that many of the jurors
    reported being teachers by profession and that, as one male
    juror described, teachers “‘see things’” regarding domestic
    violence. Id. Bedford further points out that many of the jurors
    had personal experience with domestic abuse as both victims
    and third parties to abusive relationships.
    [35-37] When reviewing claims of alleged ineffective
    assist­ance of counsel, an appellate court affords trial counsel
    due deference to formulate trial strategy and tactics. State
    v. Torres, 
    295 Neb. 830
    , 
    894 N.W.2d 191
     (2017). There is
    a strong presumption that counsel acted reasonably, and an
    appellate court will not second-guess reasonable strategic
    decisions. 
    Id.
     Even if found unreasonable, the error justi-
    fies setting aside the judgment only if there was prejudice.
    See State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
     (2019). We
    first note that the prospective jury pool was predominantly
    female, and three male jurors were selected to serve on the
    jury. Further, although the record does not conclusively show
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    which of the prospective jurors were struck via the defense’s
    peremptory strikes, several prospective jurors who fell within
    the categories highlighted by Bedford on appeal as problem-
    atic were struck from the jury pool. A defendant is consti-
    tutionally guaranteed a jury that is fair and impartial, but a
    defendant is not guaranteed a jury comprising only particular
    jurors. See State v. Huff, 
    25 Neb. App. 219
    , 
    904 N.W.2d 281
    (2017). The prospective jurors who felt that they would have
    difficulties being impartial in this case due to their prior expe-
    riences were dismissed, and those selected jurors who had
    described experiences with domestic violence and abusive
    relationships affirmed that they could be impartial in this mat-
    ter. Even if trial counsel’s strategy in jury selection had been
    unreasonable, we find that the record refutes Bedford’s allega-
    tions that he was prejudiced by a biased jury. Accordingly, this
    ineffective assistance claim fails.
    (e) Failure to File Motion to Sever
    Bedford claims that trial counsel was ineffective in failing
    to file a motion to sever the counts listed in the information.
    He argues that “[p]ermitting these counts to be tried together
    impermissibly tainted the jury’s perception . . . and [the
    jurors’] determination of guilt” such that “he did not receive a
    fair trial on each separate count in this case.” Brief for appel-
    lant at 33.
    [38-41] 
    Neb. Rev. Stat. § 29-2002
     (Reissue 2016) provides
    for the joinder and severance of charges in a criminal case. In
    pertinent part, § 29-2002 provides:
    (1) Two or more offenses may be charged in the same
    indictment, information, or complaint in a separate count
    for each offense if the offenses charged, whether felonies
    or misdemeanors, or both, are of the same or similar
    character or are based on the same act or transaction or
    on two or more acts or transactions connected together or
    constituting parts of a common scheme or plan.
    ....
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    (3) If it appears that a defendant or the state would
    be prejudiced by a joinder of offenses in an indictment,
    information, or complaint[,] . . . the court may order an
    election for separate trials of counts, indictments, infor-
    mations, or complaints . . . or provide whatever other
    relief justice requires.
    Whether offenses were properly joined involves a two-stage
    analysis: (1) whether the offenses were sufficiently related to
    be joinable and (2) whether the joinder was prejudicial to the
    defendant. State v. Benson, 
    305 Neb. 949
    , 
    943 N.W.2d 426
    (2020). There is a strong presumption against severing prop-
    erly joined counts. 
    Id.
     Joined charges do not usually result in
    prejudice if the evidence is sufficiently simple and distinct for
    the jury to easily separate evidence of the charges during delib-
    erations. 
    Id.
     Further, prejudice from joinder cannot be shown if
    evidence of one charge would have been admissible in a sepa-
    rate trial of another charge. 
    Id.
    Bedford does not specify which counts in the amended infor-
    mation should have been severed. However, we first observe
    that the counts relating to the three incidents of assault all
    involved conflict between Bedford and Jessica in similar cir-
    cumstances in that they escalated from arguments between the
    two, constituting a pattern of similar conduct. With respect to
    the witness tampering count, the evidence of this charge would
    have been admissible as evidence of consciousness of guilt in
    a separate trial on his domestic assault charges, as he explicitly
    instructed Jessica not to come to court if she were subpoenaed
    after his arrest following the October 2019 assault. See 
    id.
    (evidence of defendant’s phone calls to witnesses would have
    been admissible in separate trial as evidence of defendant’s
    conscious guilt that crime had been committed).
    Further, we find that the evidence in this case was suffi-
    ciently simple and distinct for the jury to separate the evidence
    corresponding to each count during deliberations. Each inci-
    dent in this matter was distinct, and the jury was instructed
    to consider each incident individually. That the jury found
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    Bedford not guilty on count 4 (relating to the July 2019
    assault) is an indication that the jury in fact considered each
    count indi­vidually. We therefore conclude that Bedford was not
    prejudiced by trial counsel’s failure to file a motion to sever, as
    any such motion would have failed. Accordingly, this ineffec-
    tive assist­ance claim fails.
    VI. CONCLUSION
    For the reasons set forth above, we find that the district
    court erred in failing to instruct the jury on Bedford’s claim
    of self-defense as to count 3. As for the remaining counts, the
    evidence was sufficient to sustain Bedford’s convictions on
    each count. We affirm Bedford’s convictions and sentences as
    to counts 1, 2, and 5; however, we reverse his conviction and
    sentence as to count 3 and remand the cause for a new trial
    solely on count 3.
    We further find that the following claims by Bedford
    that his trial counsel was ineffective fail: failing to file a
    motion for discharge on speedy trial grounds, failing to advise
    Bedford that counts 1 and 5 were both subject to habitual
    criminal enhancement, failing to select a fair and impar-
    tial jury, and failing to file a motion to sever the counts in
    the amended information. Bedford’s ineffective assistance of
    counsel claim regarding the failure of trial counsel to present
    emails and text messages in his possession was not alleged
    with the required specificity and is not preserved for postcon-
    viction review.
    Affirmed in part, and in part reversed
    and remanded for a new trial.
    Bishop, Judge, concurring in part, and in part dissenting.
    I concur in all aspects of the majority opinion, except for
    that portion reversing the conviction and remanding the cause
    for a new trial as to count 3 (the October 2019 incident)
    based on the district court’s failure to instruct the jury on
    ­self-defense as to that count. In my opinion, the trial court
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    properly concluded that a self-defense instruction was not
    supported by the evidence; I would have affirmed Bedford’s
    convictions.
    I agree with the State that the “evidence and testimony make
    clear that there was no established reasonable and good faith
    belief on the part of Bedford that force was immediately neces-
    sary nor justified during the October 5, 2019[,] assault.” Brief
    for appellee at 43. The State argues that Bedford “has not artic-
    ulated why shoving [Jessica] was ‘necessary to protect him-
    self’” and that Bedford failed to sufficiently establish a claim
    of self-defense, because “he did not testify as to the immediate
    threat posed by [Jessica], prior threats followed with physical
    harm, weapons held by [Jessica], injuries caused by [Jessica],
    or what he believed she intended to do if he did not make
    physical contact with her.” 
    Id.
     I agree that Bedford failed to
    put forward any evidence to suggest he “pushed [Jessica] off of
    [him]” in an effort to protect himself from any unlawful force
    being used by Jessica.
    Only where the jury could reasonably find that the defend­
    ant’s use of force was justified should the trial court instruct
    the jury on self-defense. State v. Case, 
    304 Neb. 829
    , 
    937 N.W.2d 216
     (2020). “It is not enough to merely show ‘any
    evidence’ of self-defense to support an instruction thereon.
    Instead, the defendant must show ‘any evidence in support of
    a legally cognizable theory of self-defense.’” Id. at 843, 937
    N.W.2d at 226 (quoting State v. Kinser, 
    252 Neb. 600
    , 
    567 N.W.2d 287
     (1997)). Further, the Nebraska Supreme Court
    has interpreted 
    Neb. Rev. Stat. § 28-1409
     (Reissue 2016) to
    mean that “to successfully assert the claim of self-defense, a
    defendant must have a reasonable and good faith belief in the
    necessity of using force and the force used in defense must be
    immediately necessary and justified under the circumstances.”
    State v. Case, 
    304 Neb. at 843
    , 937 N.W.2d at 226.
    The majority determines that Bedford articulated a cogniza-
    ble theory of self-defense because “he held a reasonable belief
    that the force used to push Jessica away was immediately
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    necessary and justified to allow him to leave the residence.”
    However, in my opinion, these facts are insufficient to estab-
    lish any belief by Bedford that the force used was “imme-
    diately necessary for the purpose of protecting himself,” as
    required by § 28-1409(1). Bedford never testified, nor did any
    other evidence indicate, that Bedford pushed Jessica “off of
    [him]” to protect himself. Rather, he testified he was packing
    his possessions when Jessica pushed him into the bedroom
    door to stop him from leaving and said he “wasn’t going any-
    where.” Bedford claimed that he then tried to continue packing
    but that Jessica pushed him and pinned him against the door,
    at which point he “didn’t shove her,” but he “pushed [Jessica]
    off of [him]” and she tripped over one of his shoes and hit her
    face on the nearby “bed base.” By his own testimony, Bedford
    was able to return to attempting to pack after Jessica allegedly
    pushed him into the bedroom door initially. Notably, Bedford
    testified that when Jessica fell, “I helped her up. I felt that was
    my fault. Even so, I didn’t mean to hurt her.”
    Bedford did not produce any evidence in support of a
    legally cognizable theory of self-defense based upon his own
    testimony. Even disregarding any conflicting evidence regard-
    ing the October 2019 incident, Bedford’s own testimony does
    not suggest that he pushed Jessica to protect himself against a
    perceived danger to himself from Jessica; rather, he attempted
    to persuade the jury that Jessica’s injury was simply the result
    of her tripping and falling when he pushed her “off of” him.
    By claiming that Jessica’s injury from her fall was accidental
    and not intentionally caused by him, Bedford placed evi-
    dence before the jury that he could not have committed third
    degree domestic assault, since he did not “[i]ntentionally and
    knowingly cause[] bodily injury to his . . . intimate partner.”
    
    Neb. Rev. Stat. § 28-323
    (1)(a) (Reissue 2016). Bedford even
    testified that he “believe[d] that [he] apologized to [Jessica]
    again” while he was being arrested. Bedford never testified
    that he pushed Jessica because such force was immediately
    necessary and justified for the purpose of protecting himself
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    against the use of unlawful force by Jessica. The lack of evi-
    dence that Bedford believed such force to be necessary and
    justified to protect himself supports the district court’s refusal
    to tender Bedford’s proposed self-defense instruction.
    Further, as noted in the majority’s opinion, self-defense
    is a statutorily affirmative defense, meaning Bedford had
    the burden of going forward with evidence of self-defense,
    after which the State would have had the burden to prove
    Bedford did not act in self-defense. See State v. France, 
    279 Neb. 49
    , 
    776 N.W.2d 510
     (2009). But how could the State
    meet a burden of proving Bedford did not act in self-defense
    when Bedford made no effort to put forth any evidence of
    self-defense? Bedford’s theory of defense was that he did not
    commit the crime of third degree domestic assault because
    he did not intend to cause bodily injury to Jessica; he admit-
    ted to pushing her, but testified that her tripping over one of
    his shoes and hitting her face on the nearby “bed base” was
    accidental. Bedford did not admit to harming Jessica on the
    basis that his action was justified to protect himself; rather,
    he claimed her injury was unintended. The Nebraska Supreme
    Court has held that
    when the defendant makes no effort to meet the ini-
    tial burden of proof to prove self-defense and when
    self-defense is not the defendant’s theory of the case,
    a self-defense instruction is not warranted. A theory of
    self-defense necessarily involves an inference or admis-
    sion that the defendant harmed the victim, but that the
    defendant’s acts were justified. By giving a self-defense
    instruction when the defendant’s theory of the case is
    that he or she did not commit the crime, the court risks
    confusing or misleading the jury.
    State v. Faust, 
    265 Neb. 845
    , 879, 
    660 N.W.2d 844
    , 874 (2003),
    disapproved on other grounds, State v. McCulloch, 
    274 Neb. 636
    , 
    742 N.W.2d 727
     (2007). See, also, State v. Brown, 
    220 Neb. 849
    , 
    374 N.W.2d 28
     (1985) (no error in failing to instruct
    on self-defense, first degree assault conviction affirmed; court
    - 378 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BEDFORD
    Cite as 
    31 Neb. App. 339
    distinguished between intentionally causing bodily injury and
    defense theory of accidental injury); State v. Canby, 
    217 Neb. 461
    , 
    348 N.W.2d 900
     (1984) (no error in refusal by trial court
    to give self-defense instruction when defendant’s testimony
    was not that she used justifiable force, but, rather, that she
    accidentally and unintentionally, or without purpose, harmed
    victim); State v. Staats, No. 2019CA00181, 
    2021 WL 1502535
    at *7 (Ohio App. Apr. 16, 2021) (no plain error in trial court’s
    failure to instruct on self-defense, domestic violence con-
    viction affirmed; defendant not entitled to self-defense jury
    instruction when defense at trial through defendant’s own
    testimony was that his conduct was justified because victim
    “‘got in his face,’” that he did not cause victim’s bruises, and
    that he was not in fear of bodily injury but “merely wanted
    to stop her ‘from getting in his face’”); State v. Green, No.
    M2019‑02197‑CCA‑R3‑CD, 
    2021 WL 1186413
     at *6 (Tenn.
    Crim. App. Mar. 30, 2021) (trial court properly refused to
    instruct jury on self-defense; aggravated assault and domestic
    assault convictions affirmed; defendant’s testimony was that
    victim hit his head with her fist, would not let him out of
    bedroom, was barricading door, and was pushing and taunting
    him as he made his way to den and that he at most “tried to
    push by” victim to get to front door, “not that he pushed her to
    defend himself from her”; and when defendant denies inflict-
    ing any injury, he is not entitled to claim self-defense).
    Based on the evidence presented, including Bedford’s own
    testimony and without regard to any conflicting evidence, I
    conclude there was no evidence to support a legally cogni-
    zable theory of self-defense. I find no error in the trial court’s
    refusal to instruct on self-defense when Bedford’s own testi-
    mony was not that he used justifiable force, but, rather, that he
    accidentally and unintentionally, or without purpose, harmed
    Jessica. See State v. Canby, 
    supra.