State v. Briggs , 303 Neb. 352 ( 2019 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BRIGGS
Cite as 303 Neb. 352
State of Nebraska, appellee, v.
R eginald B. Briggs, appellant.
___ N.W.2d ___
Filed June 14, 2019. Nos. S-17-1183, S-17-1321.
1. Pleadings: Parties: Judgments: Appeal and Error. A denial of a
motion to sever will not be reversed unless clear prejudice and an
abuse of discretion are shown, and an appellate court will find such an
abuse only where the denial caused the defendant substantial prejudice
amounting to a miscarriage of justice.
2. Rules of Evidence: Judgments: Words and Phrases: 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. An
abuse of discretion occurs when a trial court’s decision is based upon
reasons that are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence.
3. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error.
An appellate court reviews de novo the facial validity of an attorney’s
race-neutral explanation for using a peremptory challenge as a question
of law. It reviews for clear error a trial court’s factual determination
regarding whether a prosecutor’s race-neutral explanation is persuasive
and whether the prosecutor’s use of a peremptory challenge was pur-
posefully discriminatory.
4. Motions for Mistrial: Appeal and Error. Decisions regarding motions
for mistrial are directed to the discretion of the trial court, and will be
upheld in the absence of an abuse of discretion.
5. ____: ____. The standard of review for the denial of a motion for
new trial is whether the trial court abused its discretion in denying
the motion.
6. Sentences: Appeal and Error. A sentence imposed within statutory
limits will not be disturbed on appeal absent an abuse of discretion by
the trial court.
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7. Constitutional Law: Trial: Joinder. A defendant has no constitutional
right to a separate trial on different charges.
8. Trial: Joinder: Appeal and Error. Under Neb. Rev. Stat. § 29-2002
(Reissue 2016), the question of whether offenses are properly joined
involves a two-stage analysis. First, a court must determine whether
the offenses were sufficiently related to be joinable, and then it must
determine whether an otherwise proper joinder was prejudicial to the
defendant.
9. ____: ____: ____. There is no error under Neb. Rev. Stat. § 29-2002
(Reissue 2016) if joinder was not prejudicial.
10. ____: ____: ____. A denial of a motion to sever will be reversed only if
clear prejudice and an abuse of discretion are shown. An appellate court
will find such an abuse only where the denial caused the defendant sub-
stantial prejudice amounting to a miscarriage of justice.
11. Trial: Joinder: Proof. A defendant opposing joinder of charges has the
burden of proving prejudice.
12. ____: ____: ____. To prove prejudice in opposing joinder, a defendant
must show compelling, specific, and actual prejudice from the court’s
refusal to grant the motion to sever.
13. Trial: Joinder. Severe prejudice occurs when a defendant is deprived
of an appreciable chance for an acquittal, a chance that the defendant
would have had in a severed trial.
14. 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.
15. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
that he or she acted in conformity therewith.
16. ____: ____. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue
2016), does not apply to evidence of a defendant’s other crimes or bad
acts if the evidence is inextricably intertwined with the charged crime.
17. ____: ____. Inextricably intertwined evidence includes evidence that
forms part of the factual setting of the crime and evidence that is so
blended or connected to the charged crime that proof of the charged
crime will necessarily require proof of the other crimes or bad acts.
Evidence of other crimes or bad acts is also inextricably intertwined
with the charged crime if the other crimes or bad acts are necessary for
the prosecution to present a coherent picture of the charged crime.
18. Constitutional Law: Juries: Discrimination: Proof. In order to estab-
lish a prima facie violation of the fair-cross-section requirement under
the Sixth Amendment, a defendant must show (1) that the group alleged
to be excluded is a distinctive group in the community, (2) that the
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STATE v. BRIGGS
Cite as 303 Neb. 352
representation of the group in venires from which the juries are selected
is not fair and reasonable in relation to the number of such persons in
the community, and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury selection process.
19. Juries: Discrimination: Prosecuting Attorneys: Proof. Determining
whether a prosecutor impermissibly struck a prospective juror based on
race is a three-step process. In this three-step process, the ultimate bur-
den of persuasion regarding racial motivation rests with, and never shifts
from, the opponent of the strike.
20. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error.
Once the trial court has decided the ultimate question of intentional
discrimination in a prosecutor’s strike of a prospective juror, the ques-
tions on appeal are only whether the prosecutor’s reasons were facially
race neutral and whether the trial court’s final determination regarding
purposeful discrimination was clearly erroneous.
21. Juries: Discrimination: Prosecuting Attorneys. Whether a prosecu-
tor’s reasons for using peremptory challenges are race neutral is a ques-
tion of law. A trial court’s determination that the prosecutor’s race-
neutral explanation should be believed, on the other hand, frequently
involves evaluation of a prosecutor’s credibility, which requires defer-
ence to the court’s findings absent exceptional circumstances.
22. ____: ____: ____. In determining whether a prosecutor’s explanation for
using a peremptory challenge is race neutral, a court is not required to
reject an explanation because it is not persuasive, or even plausible; it is
sufficient if the reason is not inherently discriminatory.
23. ____: ____: ____. A prosecutor’s intuitive assumptions, inarticulable
factors, or even hunches can be proper bases for rejecting a poten-
tial juror, so long as the reasons are not based on impermissible
group bias.
24. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A
defendant who moves for dismissal or a directed verdict at the close of
the evidence in the State’s case in chief in a criminal prosecution and
who, when the court overrules the dismissal or directed verdict motion,
proceeds with trial and introduces evidence, waives the appellate right
to challenge correctness in the trial court’s overruling the motion for
dismissal or a directed verdict but may still challenge the sufficiency of
the evidence.
25. Criminal Law: Motions for Mistrial: Proof: Appeal and Error. A
mistrial is properly granted in a criminal case where an event occurs
during the course of a trial that is of such a nature that its damaging
effect cannot be removed by proper admonition or instruction to the jury
and thus prevents a fair trial. The defendant must prove that the alleged
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error actually prejudiced him or her, rather than creating only the pos-
sibility of prejudice.
26. Motions for Mistrial: Motions to Strike: Appeal and Error. Error
cannot ordinarily be predicated on the failure to grant a mistrial if an
objection or motion to strike the improper material is sustained and the
jury is admonished to disregard such material.
27. Assault: Weapons. First degree assault can serve as the predicate
offense of use of a deadly weapon to commit a felony.
28. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence to
sustain the conviction, 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.
29. Appeal and Error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial is plainly evident from the
record, affects a litigant’s substantial right, and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of the judi-
cial process.
30. Sentences: Appeal and Error. The failure to impose an indeterminate
sentence when required by statute constitutes plain error.
31. Sentences: Pretrial Procedure. A defendant is not entitled to credit for
time served when he or she is awaiting trial and sentencing on charges,
but is also serving another sentence.
32. Habitual Criminals: Sentences. The habitual criminal statute does not
enhance the penalty for prior convictions, but is applied to the penalty
for the triggering offense, and thus, the fact that the penalty for a prior
conviction was itself enhanced does not result in a double penalty
enhancement of the triggering offense. Instead, even convictions that
are enhanced under a specific subsequent offense statute can be used
as prior convictions so long as they meet the statutory requirement that
such convictions resulted in terms of imprisonment of not less than
1 year.
33. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
34. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural back-
ground, (5) past criminal record or record of law-abiding conduct,
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Cite as 303 Neb. 352
and (6) motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the commission of
the crime.
35. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
Appeals from the District Court for Douglas County: W.
M ark Ashford, Judge. Judgment in No. S-17-1183 affirmed
in part, and in part vacated and remanded for resentenc-
ing. Judgment in No. S-17-1321 affirmed in part, and in
part vacated.
Ernest H. Addison, Jr., and A. Michael Bianchi for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
A jury found Reginald B. Briggs guilty of manslaughter,
use of a deadly weapon to commit a felony, possession of a
deadly weapon by a prohibited person, and pandering. Briggs
later pleaded guilty to another charge of pandering, which had
been severed from the other charges prior to trial. Briggs now
appeals a number of issues pertaining to his convictions and
sentences. We find no merit to his various assignments of error.
We do find plain error in his sentencing and thus vacate his
sentences in part and remand the matter for resentencing.
BACKGROUND
Information and Pretrial Motions.
An amended information charged Briggs with 7 counts: first
degree murder with the victim alleged to be Teresa Longo,
use of a deadly weapon to commit a felony, possession of a
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Cite as 303 Neb. 352
deadly weapon by a prohibited person, pandering with the
victim alleged to be Longo, pandering with the victim alleged
to be Raynette Heidt, and two charges of third degree domes-
tic assault. The information also alleged that Briggs was a
habitual criminal.
Prior to trial, Briggs filed motions to sever the pandering and
domestic assault counts from the other charges. At a hearing on
the motions, the State conceded to severance of the domestic
assault charges. The district court also granted the motion as
to the pandering charge in which Heidt was the alleged victim.
The court declined to sever the pandering charge in which
Longo was the alleged victim and ordered that it be joined for
trial with the murder and weapons charges.
After the district court’s order on Briggs’ severance motion,
the State filed a motion in limine in which it sought an order
authorizing it to adduce evidence of Briggs’ pandering of
Heidt at the trial on the murder, weapons, and pandering
of Longo charges. The district court granted the motion in
limine. In a written order, it found that evidence of Briggs’
pandering of Heidt was inextricably intertwined with the
charged crimes.
Evidence Presented at Trial.
A jury trial was held on the murder and weapons charges
and on the pandering charge alleging Longo to be the victim.
The most relevant evidence for purposes of this appeal will be
detailed below.
Much of the evidence concerning pandering came from
testimony of Heidt. Heidt testified that she has known
Briggs since 2009 and that they began a romantic relation-
ship in December 2013. At some point in 2015, both Briggs
and Longo started residing with Heidt and her two children
at a house in Omaha, Nebraska. Heidt testified that during
that time, she, Briggs, and Longo were engaged in pros-
titution, with Heidt and Longo acting as prostitutes and
Briggs acting as their “pimp” by controlling the finances and
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STATE v. BRIGGS
Cite as 303 Neb. 352
d­ eciding if and when Heidt and Longo were going to engage
in prostitution.
Heidt testified that she would place advertisements both
for herself and for Longo on a website used to advertise pros-
titution. Briggs directed her to post the advertisements and
provided money to place them. Heidt and Longo engaged in
prostitution in various hotels in the area, and the rooms were
paid for by Briggs. Briggs set the prices to be charged per hour,
and Heidt and Longo would be paid in cash, which they would
give to Briggs. Records from various hotels in the area were
entered into evidence, showing rooms booked in either Briggs’
or Longo’s name during the summer of 2015.
Heidt also provided testimony regarding Longo’s disappear-
ance. She testified that at some point in the early morning of
September 17, 2015, Briggs told Longo to gather her belong-
ings and leave with him. Longo then left with Briggs, taking
with her a red suitcase she often took when going out for the
evening. Heidt never saw Longo again.
Briggs returned to the house without Longo a few hours
later. When he arrived, Briggs washed all of his clothing in the
washing machine even though he did not typically do his own
laundry. After showering and getting dressed, and while it was
still dark outside, Briggs made Heidt drive him to a nearby
creek without using the car’s headlights. Briggs got out of the
car, walked around to the back, and retrieved his jacket, which
appeared to be concealing something inside it as he carried it in
his arms. When Briggs returned about 5 minutes later, he was
still carrying the jacket, but it appeared lighter, as if there was
no longer anything inside.
Heidt testified that Briggs owned a shotgun and that as of
August 2015, he was keeping the shotgun beneath the stairs
of their basement. Heidt testified that the last time she saw the
shotgun in that location was the first week in September.
Nathan Jandreau, an acquaintance of Briggs, testified that
sometime in September 2015, Briggs came to his home.
Jandreau testified that during that visit, Briggs pulled Jandreau
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aside and whispered to him that Briggs “fucked up.” When
asked to explain, Briggs said, “I accidentally shot the bitch.”
When Jandreau asked whom Briggs had shot, Briggs replied,
“the white girl.” Jandreau then asked for more details, and
Briggs said that “he was trying to scare her and the gun acci-
dentally went off.” Briggs added that he had left the body in
Jandreau’s house.
Jandreau understood Briggs to be referring to a home in
which he had previously resided. After Jandreau moved out of
that home, no one resided in it, but it was always unlocked and
many people sold drugs and guns out of it. Two days after the
conversation between Jandreau and Briggs, Jandreau went to
that location. As he walked by the bathroom, he saw feet stick-
ing out of the shower. Jandreau left, but later told law enforce-
ment about the body after he was arrested for an unrelated
crime at the end of September 2015.
Based on the information provided by Jandreau, police
officers obtained a search warrant and visited the home. Upon
entering the home, one of the investigating officers smelled
an odor he associated with decaying flesh. In the living room
area, the officers found a red suitcase. The officers located a
female body in the shower. A purse containing identification
and debit cards with Longo’s name was found near the body.
The body was identified as Longo’s based on a thumbprint.
An autopsy revealed a large wound in the back of Longo’s
head. The inside of the skull, where the brain would usually
sit, was exposed. The forensic pathologist who performed
the autopsy concluded, based on a number of factors, that the
cause of death was a close-range shotgun wound to the back of
the head. A forensic entomologist analyzed maggots found on
Longo’s body and determined that she died between September
15 and 21, 2015.
Jury’s Verdicts and Sentencing.
The jury did not convict Briggs of the charged crime of first
degree murder, but instead convicted him of manslaughter.
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It also convicted him of the other charges of use of a deadly
weapon to commit a felony, possession of a deadly weapon by
a prohibited person, and pandering. Briggs filed a motion for
new trial, which was overruled.
The district court determined Briggs qualified as a habitual
criminal under Neb. Rev. Stat. § 29-2221 (Reissue 2016) and
sentenced him accordingly. The district court sentenced Briggs
to 20 years’ imprisonment for manslaughter, 40 to 50 years’
imprisonment for use of a deadly weapon to commit a felony,
10 years’ imprisonment for possession of a deadly weapon by
a prohibited person, and 10 years’ imprisonment for pandering.
The sentences for these charges were ordered to be served con-
secutively, and Briggs was awarded 764 days’ credit for time
served. Briggs timely appealed.
Disposition of Severed Charges.
Pursuant to a plea agreement, Briggs later entered a plea
of no contest to the previously severed charge of pandering
involving Heidt and the State dismissed the remaining domes-
tic assault charges. The district court accepted the no contest
plea and sentenced Briggs to 10 years’ imprisonment with the
sentence to be served concurrently with his other sentences.
In the sentencing order, the district court awarded Briggs 794
days’ credit for time served. Briggs also timely appealed his
conviction and sentence for this charge.
ASSIGNMENTS OF ERROR
Briggs assigns nine errors on appeal, which we have con-
densed and restated as follows: The district court erred (1)
in denying the motion to sever the pandering charge, (2) in
admitting evidence of Briggs’ pandering of Heidt, (3) in deny-
ing Briggs’ challenges to jury selection, (4) in denying Briggs’
motions for mistrial, (5) in denying Briggs’ motion to dismiss
at the conclusion of the State’s case, (6) in denying Briggs’
motion for new trial, (7) in finding Briggs to be a habitual
criminal, and (8) in imposing excessive sentences.
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STANDARD OF REVIEW
[1] A denial of a motion to sever will not be reversed unless
clear prejudice and an abuse of discretion are shown, and an
appellate court will find such an abuse only where the denial
caused the defendant substantial prejudice amounting to a mis-
carriage of justice. State v. Cotton, 299 Neb. 650, 910 N.W.2d
102 (2018), disapproved on other grounds, State v. Avina-
Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018).
[2] 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. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. State v. Smith, 286 Neb. 856,
839 N.W.2d 333 (2013).
[3] An appellate court reviews de novo the facial validity of
an attorney’s race-neutral explanation for using a peremptory
challenge as a question of law. It reviews for clear error a trial
court’s factual determination regarding whether a prosecu-
tor’s race-neutral explanation is persuasive and whether the
prosecutor’s use of a peremptory challenge was purposefully
discriminatory. State v. Wofford, 298 Neb. 412, 904 N.W.2d
649 (2017).
[4] Decisions regarding motions for mistrial are directed
to the discretion of the trial court, and will be upheld in the
absence of an abuse of discretion. State v. Grant, 293 Neb. 163,
876 N.W.2d 639 (2016).
[5] The standard of review for the denial of a motion
for new trial is whether the trial court abused its discretion
in denying the motion. State v. Oldson, 293 Neb. 718, 884
N.W.2d 10 (2016).
[6] A sentence imposed within statutory limits will not
be disturbed on appeal absent an abuse of discretion by the
trial court. State v. Erickson, 281 Neb. 31, 793 N.W.2d 155
(2011).
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ANALYSIS
Denial of Motion to Sever.
We begin our analysis with Briggs’ argument that the district
court committed reversible error by not severing the pandering
charge involving Longo from the other charges upon which
Briggs was tried.
[7] A defendant has no constitutional right to a separate
trial on different charges. State v. Knutson, 288 Neb. 823,
852 N.W.2d 307 (2014). Instead, Neb. Rev. Stat. § 29-2002
(Reissue 2016) controls the joinder or separation of charges for
trial and states, in relevant part:
(1) Two or more offenses may be charged in the same
indictment, information, or complaint . . . if the offenses
charged . . . 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.
....
(3) If it appears that a defendant or the state would be
prejudiced by a joinder of offenses . . . for trial together,
the court may order an election for separate trials of
counts, indictments, informations, or complaints, grant a
severance of defendants, or provide whatever other relief
justice requires.
[8] Under these provisions of § 29-2002, the question of
whether offenses are properly joined involves a two-stage
analysis. First, a court must determine whether the offenses
were sufficiently related to be joinable, and then it must deter-
mine whether an otherwise proper joinder was prejudicial to
the defendant. See Knutson, supra.
[9,10] But while subsections (1) and (3) of § 29-2002 pre­
sent two separate questions, we have held that there is no
error under either subsection if joinder was not prejudicial.
See State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018),
disapproved on other grounds, State v. Avina-Murillo, 301
Neb. 185, 917 N.W.2d 865 (2018). Accordingly, a denial of
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a motion to sever will be reversed only if clear prejudice
and an abuse of discretion are shown. Id. An appellate court
will find such an abuse only where the denial caused the
defendant substantial prejudice amounting to a miscarriage of
justice. Id.
[11-13] A defendant opposing joinder of charges has the bur-
den of proving prejudice. Id. To carry that burden, a defend­ant
must show compelling, specific, and actual prejudice from the
court’s refusal to grant the motion to sever. Severe prejudice
occurs when a defendant is deprived of an appreciable chance
for an acquittal, a chance that the defendant would have had
in a severed trial. Id.
Briggs argues both that the pandering charge involving
Longo was not sufficiently related to the other charges upon
which he was tried and that this joinder was prejudicial to
him. We, however, need not consider whether the pandering
charge was properly joined with the other counts, because, as
we will explain, Briggs has not demonstrated prejudice from
the joinder.
[14] Joined charges do not usually result in prejudice if the
evidence is sufficiently simple and distinct for the jury to eas-
ily separate evidence of the charges during deliberations. State
v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). In this case,
we believe that the evidence was such that the jury could have
easily separated evidence of the charges during deliberations.
The evidence that Briggs committed pandering was distinct
from the evidence related to the other charges. The evidence
of pandering concerned Briggs’ acting as a “pimp” for Heidt
and Longo between June 1 and September 17, 2015. The evi-
dence of other charges was primarily Longo’s disappearance
on September 17, the subsequent discovery of her body, and
evidence tending to show Briggs’ involvement in her death. We
perceive little risk that the jury could not separate the charges
and associated evidence.
Furthermore, the record demonstrates that the jury did sepa-
rately evaluate whether the State met its burden as to each
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charge. While it convicted Briggs of pandering, it did not con-
vict him of the charged crime of first degree murder. Because
Briggs cannot show he was prejudiced by the denial of his
motion to sever, this assignment of error lacks merit.
Admission of Evidence That
Briggs Pandered Heidt.
We next turn to Briggs’ contention that the district court
committed reversible error by allowing the State to introduce
evidence involving his pandering of Heidt. As noted above, the
State charged Briggs with two counts of pandering, one alleg-
ing Longo to be the victim and one alleging Heidt to be the
victim. The district court severed the pandering charge involv-
ing Heidt, but it nonetheless allowed the State to introduce
evidence of Briggs’ pandering of Heidt at the trial concerning
other charges. Briggs contends that this evidence was inadmis-
sible under Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404(2)
(Reissue 2016). We disagree.
[15-17] Under rule 404(2), evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in
order to show that he or she acted in conformity therewith.
Rule 404(2) does not apply, however, to evidence of a defend­
ant’s other crimes or bad acts if the evidence is inextricably
intertwined with the charged crime. State v. Smith, 286 Neb.
856, 839 N.W.2d 333 (2013). Inextricably intertwined evi-
dence includes evidence that forms part of the factual setting
of the crime and evidence that is so blended or connected to
the charged crime that proof of the charged crime will neces-
sarily require proof of the other crimes or bad acts. See State
v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016). Evidence of
other crimes or bad acts is also inextricably intertwined with
the charged crime if the other crimes or bad acts are necessary
for the prosecution to present a coherent picture of the charged
crime. See id.
In this case, the evidence showed that Briggs was pander-
ing Heidt at the same time he was pandering Longo. Indeed,
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Heidt had the knowledge to testify about Briggs’ relationship
with and pandering of Longo because Briggs was pandering
her at the same time. Evidence of Heidt’s relationship with
Briggs and Longo was necessary for the State to present a
coherent picture of its allegations that Briggs pandered Longo
and eventually killed her. And a complete picture of Heidt’s
relationship with Briggs and Longo could be portrayed only by
allowing evidence of Briggs’ pandering of Heidt.
Because the evidence of Briggs’ pandering of Heidt was
inextricably intertwined with evidence of the charged crimes,
rule 404(2) did not apply. This assignment of error also
lacks merit.
Challenges to Selection of Jury.
Briggs also argues that the district court committed revers-
ible error by overruling challenges he made to the jury selec-
tion in this matter. Briggs makes two separate arguments
regarding jury selection. He contends that he was deprived of
a jury which accurately and correctly reflected a fair, impartial,
and representative cross-section of the community and that
the State used peremptory challenges on certain jurors solely
because of their race, contrary to Batson v. Kentucky, 476 U.S.
79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We take up these
challenges in turn.
[18] Briggs contends that there were 42 prospective jurors
and that out of this group, there were two African-Americans
and one “similarly situated minority.” Brief for appellant at 33.
This, Briggs claims, violated the fair-cross-section requirement
under the Sixth Amendment to the U.S. Constitution. In order
to establish a prima facie violation of the fair-cross-section
requirement, a defendant must show (1) that the group alleged
to be excluded is a distinctive group in the community, (2)
that the representation of the group in venires from which the
juries are selected is not fair and reasonable in relation to the
number of such persons in the community, and (3) that this
underrepresentation is due to systematic exclusion of the group
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in the jury selection process. State v. Thomas, 262 Neb. 985,
637 N.W.2d 632 (2002).
Briggs offered little argument or evidence in the trial court in
support of a fair-cross-section challenge. His counsel did point
out the prospective jurors included two African-Americans and
one other juror “who might be considered a person of color,”
but most of the focus in his challenge to the jury selection
was directed at the State’s use of peremptory strikes. But even
assuming Briggs adequately raised a fair-cross-section chal-
lenge in the district court, and even if we assume that the other
elements necessary to establish a prima facie violation were
present, there is no evidence that underrepresentation of racial
minorities was due to systematic exclusion in the jury selection
process. Absent such evidence, Briggs cannot prevail on a fair-
cross-section claim. See Thomas, supra.
Moving to Briggs’ challenge under Batson, supra, our focus
shifts to the State’s use of peremptory strikes. Briggs chal-
lenges the State’s use of peremptory strikes on two prospective
jurors, contending that the challenges were used solely because
of the prospective jurors’ race. We will briefly review the stan-
dards for resolving such challenges before applying them in
this case.
[19] Determining whether a prosecutor impermissibly struck
a prospective juror based on race is a three-step process. State
v. Clifton, 296 Neb. 135, 892 N.W.2d 112 (2017). In this three-
step process, the ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent
of the strike. Id. First, a defendant must make a prima facie
showing that the prosecutor exercised a peremptory challenge
because of race. Second, assuming the defendant made such
a showing, the prosecutor must offer a race-neutral basis for
striking the juror. And third, the trial court must determine
whether the defendant has carried his or her burden of proving
purposeful discrimination. Id.
[20,21] Once the trial court has decided the ultimate ques-
tion of intentional discrimination, however, the questions on
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appeal are only whether the prosecutor’s reasons were facially
race neutral and whether the trial court’s final determination
regarding purposeful discrimination was clearly erroneous.
Id. Whether a prosecutor’s reasons for using peremptory chal-
lenges are race neutral is a question of law. Id. A trial court’s
determination that the prosecutor’s race-neutral explanation
should be believed, on the other hand, frequently involves
evaluation of a prosecutor’s credibility, which requires def-
erence to the court’s findings absent exceptional circum-
stances. Id.
In this case, Briggs contends that the State did not offer a
race-neutral reason for excluding two jurors who were racial
minorities and that even if the State did offer race-neutral
reasons for the strikes, such reasons were not genuine but pre-
textual. In fact, the State clearly did offer race-neutral reasons
for striking the jurors at issue. The first of these prospective
jurors was a doctor who had indicated that because of schedul-
ing issues, a clinic with which she was associated would have
to close if she were selected as a juror. The State said it struck
the juror for this reason. As a reason for striking the second
juror at issue, the State pointed to his statements that he was
going to be taking his daughter to graduate school in Oregon
during the time trial was scheduled and that if selected as a
juror, he would have to change his plans and “wouldn’t be
happy about that at all.”
[22] In determining whether a prosecutor’s explanation for
using a peremptory challenge is race neutral, a court is not
required to reject an explanation because it is not persuasive,
or even plausible; it is sufficient if the reason is not inherently
discriminatory. Clifton, supra. The reasons the State offered
were not inherently discriminatory.
[23] We also reject Briggs’ claim that the reasons offered
by the State were pretextual. The sole argument Briggs makes
in support of this claim is that these jurors stated during voir
dire that they could be fair and impartial. But in making this
argument, Briggs appears to misunderstand our inquiry. The
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State can exercise peremptory strikes on jurors for reasons
other than a belief that the juror will not be fair and impartial.
Indeed, “[a] prosecutor’s intuitive assumptions, inarticulable
factors, or even hunches can be proper bases for rejecting a
potential juror, so long as the reasons are not based on imper-
missible group bias.” Clifton, 296 Neb. at 153, 892 N.W.2d at
129. We do not understand how the fact that these jurors stated
they could be fair and impartial shows that the prosecutor’s
stated reasons for striking them from the jury were a pretext
for discrimination. As there is no basis to find that the dis-
trict court clearly erred in finding that the State’s race-neutral
explanations were pretextual, Briggs’ claim under Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986), fails.
Denial of Briggs’ Motion to Dismiss.
[24] Briggs next asserts that the district court erred by deny-
ing the motion to dismiss he made at the close of the State’s
case. The record, however, shows that after the State rested
and Briggs’ motion was denied, Briggs put on evidence of
his own. A defendant who moves for dismissal or a directed
verdict at the close of the evidence in the State’s case in chief
in a criminal prosecution and who, when the court overrules
the dismissal or directed verdict motion, proceeds with trial
and introduces evidence, waives the appellate right to chal-
lenge correctness in the trial court’s overruling the motion for
dismissal or a directed verdict but may still challenge the suf-
ficiency of the evidence. State v. Olbricht, 294 Neb. 974, 885
N.W.2d 699 (2016).
By introducing evidence after the denial of his motion
to dismiss, Briggs waived the right to challenge the district
court’s ruling on appeal.
Briggs’ Motions for Mistrial.
Briggs also claims the district court erred by denying his
motions for a mistrial. Briggs asked the district court to grant
a mistrial after the admission of testimony from Heidt that
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Briggs moved in with her after he was released from jail. He
also argued a mistrial was warranted after the trial court admit-
ted evidence of a telephone call between Briggs and Heidt that
took place while Briggs was incarcerated. We cannot say the
district court abused its discretion in denying Briggs’ requests
for a mistrial.
[25] A mistrial is properly granted in a criminal case where
an event occurs during the course of a trial that is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair
trial. State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).
The defendant must prove that the alleged error actually preju-
diced him or her, rather than creating only the possibility of
prejudice. Id.
[26] Briggs claims that evidence he was previously incar-
cerated was prejudicial and warranted a mistrial. After Heidt
made reference to Briggs’ previous incarceration, however, the
district court gave an instruction ordering the jury to disregard
the reference to Briggs’ being in jail. Error cannot ordinarily
be predicated on the failure to grant a mistrial if an objection
or motion to strike the improper material is sustained and the
jury is admonished to disregard such material. McCurry, supra.
Neither do we believe this is an extraordinary case in which a
trial court’s admonishment is insufficient to overcome poten-
tial prejudice. The jury was already aware that Briggs had a
criminal history; he had stipulated that he had a prior felony
conviction, and this stipulation was read to the jury at the start
of the trial. It would not have come as a shock to any juror that
Briggs had spent some time incarcerated.
Briggs fares no better with his argument that he was entitled
to a mistrial based on the admission of the recorded telephone
call between Briggs and Heidt. In the call, which occurred
before Longo’s death, Briggs asked Heidt whether Longo was
holding money. After being told she was not, Briggs asked
Heidt to bring the money to bond him out of jail. The call was
thus relevant to the question of whether Briggs was benefiting
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from Longo’s acts of prostitution. Briggs cannot even show
that evidence of the call was improperly admitted, let alone
that its admission entitled him to a mistrial. This assignment of
error is without merit.
Motion for New Trial.
Briggs claims that the district court should have granted his
motion for new trial for various reasons. Most of these reasons
can be dispensed with quickly, but the final reason requires
more discussion.
With respect to Briggs’ claim that the circumstances under
which he had the opportunity to depose Jandreau and another
witness were unfair, we find that the district court was not
obligated to grant a new trial. Briggs complains that these wit-
nesses were granted immunity during the trial and that as a
result, he was forced to take their depositions during recesses.
Briggs, however, did not ask for a continuance to give him
more time to take either deposition. Neither has Briggs shown
how he was prejudiced by the timing of these depositions.
Next, Briggs claims that he was entitled to a new trial based
on various issues we have already discussed. Briggs says he
was denied a fair trial as a result of the admission of evidence
regarding the pandering of Heidt and the recorded telephone
call between Briggs and Heidt. Briggs also complains about
Heidt’s stricken statement that Briggs moved in with her after
he was released from jail. As we have already explained, we
do not find that Briggs was prejudiced by any of the foregoing.
Neither do we believe Briggs has identified cumulative error
that would entitle him to a new trial.
This brings us to the motion for new trial argument that
requires additional discussion. Here, Briggs argues that the
district court should have given him a new trial because he
did not commit an intentional felony that would support his
conviction for use of a deadly weapon to commit a felony. In
support of this argument, Briggs points out that this court has
interpreted Neb. Rev. Stat. § 28-1205(1) (Reissue 2016), the
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use of a deadly weapon to commit a felony statute, to provide
that a person cannot be convicted thereunder when the underly-
ing felony is an unintentional crime. See, State v. Pruett, 263
Neb. 99, 638 N.W.2d 809 (2002); State v. Ring, 233 Neb. 720,
447 N.W.2d 908 (1989), disapproved on other grounds, State v.
Irish, 292 Neb. 513, 873 N.W.2d 161 (2016). As we explained
in Ring, 233 Neb. at 724, 447 N.W.2d at 911, § 28-1205(1)
makes it a crime to use certain weapons “‘to commit any fel-
ony’” and this is synonymous with “‘for the purpose of com-
mitting any felony.’” Briggs contends that he did not commit
an intentional crime that would support his conviction for use
of a deadly weapon to commit a felony.
The State does not contest Briggs’ reading of Pruett or Ring,
but contends that Briggs did commit an intentional crime that
could serve as the predicate offense for his use of a deadly
weapon to commit a felony conviction. The State notes that
the jury was instructed to find Briggs guilty of manslaughter
if it concluded he killed Longo either intentionally without
malice upon a sudden quarrel or unintentionally while in the
commission of an unlawful act, and the instructions defined
as an unlawful act “Assault in the First Degree, that is, the act
of intentionally or knowingly causing serious bodily injury to
another person.” The State argues that either sudden quarrel
manslaughter or first degree assault is an intentional crime and
can serve as the basis for a use of a deadly weapon to commit
a felony conviction.
[27] We have previously held that first degree assault
requires the intent to perform the act which produces the
injury and that, because of this intent requirement, first degree
assault can serve as the predicate offense of use of a deadly
weapon to commit a felony. See, State v. Sepulveda, 278
Neb. 972, 775 N.W.2d 40 (2009); State v. Tucker, 278 Neb.
935, 774 N.W.2d 753 (2009). In both Sepulveda and Tucker,
the defendants were convicted of manslaughter and use of
a deadly weapon to commit a felony. And, in both cases,
we upheld a use of a weapon conviction on the ground that
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intentional assault could form the basis for the unintentional
manslaughter conviction and the predicate for the use of a
weapon charge.
Faced with the fact that first degree assault could serve as
a predicate for the use of a weapon charge, Briggs responds
that there was insufficient evidence he committed first degree
assault and, in the alternative, that a finding he committed first
degree assault cannot be reconciled with the jury’s decision not
to convict him of first or second degree murder. We take up
these arguments in turn.
[28] First, we reject Briggs’ argument that there was insuf-
ficient evidence of first degree assault. When reviewing a
criminal conviction for sufficiency of the evidence to sustain
the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019).
Viewing the evidence under this deferential standard, we
find there was sufficient evidence that Briggs committed first
degree assault. Neb. Rev. Stat. § 28-308(1) (Reissue 2016)
provides that one commits first degree assault when one
“intentionally or knowingly causes serious bodily injury to
another person.” The evidence showed that Longo was last
seen alive leaving with Briggs on September 17, 2015; that she
was later found to have been killed as a result of a close-range
shotgun wound to the head; that Briggs washed his clothes and
traveled to a creek where he appeared to dispose of an object
in the early morning hours of September 17; and that Briggs
admitted to Jandreau that he had shot Longo. While Briggs
told Jandreau that he had shot Longo accidentally, the jury was
not obligated to believe his testimony on that point. Viewing
this evidence in the light most favorable to the prosecution, we
believe the jury could have rationally found that Briggs inten-
tionally caused serious bodily injury to Longo by shooting her
in the head.
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This leaves Briggs’ argument that a determination that he
committed first degree assault is inconsistent with the jury’s
decision not to convict him of first or second degree mur-
der. This argument has some surface appeal. The facts we
recounted above upon which the jury could rationally have
convicted Briggs of first degree assault would also seem
to support a finding of first or at least second degree mur-
der. And yet, as Briggs points out, the jury, despite being
instructed on the elements of those offenses, convicted him of
manslaughter instead. Accordingly, Briggs argues that a find-
ing he committed first degree assault is inconsistent with the
jury’s decision not to convict him of first or second degree
murder and that therefore, the use of a weapon conviction
cannot stand.
But while Briggs’ argument may have surface appeal, it is
not legally viable. Briggs is asking us to overturn a convic-
tion on one charge because he contends it is inconsistent with
a jury’s decision not to convict on another. The U.S. Supreme
Court has held that a conviction cannot be overturned because
of this type of inconsistency. The Supreme Court first reached
that conclusion in Dunn v. United States, 284 U.S. 390, 52 S.
Ct. 189, 76 L. Ed. 356 (1932), and reaffirmed the principle
over 50 years later in U.S. v. Powell, 469 U.S. 57, 105 S. Ct.
471, 83 L. Ed. 2d 461 (1984).
In Powell, the inconsistency in the verdict was more appar-
ent than in this case. The defendant was acquitted of posses-
sion with intent to distribute cocaine and conspiracy to com-
mit the same but was convicted of several counts of using a
telephone in committing those same drug-possession offenses.
Even so, the U.S. Supreme Court held that the defendant could
not challenge the convictions on the ground they were incon-
sistent with the acquittals on other counts.
As the Court explained, this type of inconsistent verdict
should not necessarily be interpreted “as a windfall to the
Government at the defendant’s expense,” because it is just
as possible that the jury reached a proper conclusion on the
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conviction and arrived at an inconsistent conclusion on the
acquittal through “mistake, compromise, or lenity.” Id., 469
U.S. at 65. Given the uncertainty of the cause of the inconsist­
ent verdict and the fact that the prosecution cannot challenge
the acquittal, the Court held that a conviction cannot be over-
turned because it is inconsistent with the jury’s decision not to
convict on another count. Finally, the Court emphasized that
protection against jury irrationality or error is available in the
form of sufficiency of the evidence review, but that this review
is “independent of the jury’s determination that evidence on
another count was insufficient.” Id., 469 U.S. at 67.
While a minority of state courts have declined to follow
the rule adopted in Dunn and Powell, on state law grounds,
see, e.g., State v. Halstead, 791 N.W.2d 805 (Iowa 2010)
(collecting cases), we find the federal rule adopted in Dunn,
­reaffirmed in Powell, and followed by a majority of states to
be sound. We also note that the Nebraska Court of Appeals, in
reliance on Dunn and Powell, refused to overturn a conviction
on the ground that it was inconsistent with the jury’s decision
to acquit on another count. See State v. McBride, 19 Neb. Ct. App.
277, 804 N.W.2d 813 (2011). Instead, consistently with Powell,
the Court of Appeals determined there was sufficient evidence
to support the conviction without regard to the acquittal on the
other charge. We have performed the same analysis here and
determined there was sufficient evidence to support the convic-
tion for use of a weapon to commit a felony.
Because we find that Briggs cannot challenge his use of a
weapon conviction on the ground that it is inconsistent with
the jury’s decision not to convict him of first or second degree
murder, and because we find that there was sufficient evidence
to support the use of a weapon conviction, Briggs is not enti-
tled to a new trial on this basis.
Plain Error in Sentencing.
[29] Briggs’ final two assignments of error pertain to his
sentences. Before addressing those issues, we will consider
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the State’s contention that there was plain error in the sen-
tences given by the district court. Plain error may be found on
appeal when an error unasserted or uncomplained of at trial
is plainly evident from the record, affects a litigant’s substan-
tial right, and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. State
v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (2015). We agree
that the sentences imposed constitute plain error in some
respects, as we explain below.
The district court imposed determinate sentences of 20
years’ imprisonment for manslaughter and 10 years’ impris-
onment for possession of a deadly weapon by a prohib-
ited person. Both crimes were alleged to have been com-
mitted after the effective date of changes made by 2015
Neb. Laws, L.B. 605, that resulted in the version of Neb.
Rev. Stat. § 29-2204 (Supp. 2015) that would have been in
place at the time. Accordingly, Briggs’ sentences on these
charges were governed by that version of § 29-2204, which
provided:
(1) Except when the defendant is found guilty of a
Class IA felony, in imposing a sentence upon an offender
for any class of felony other than a Class III, IIIA, or IV
felony, the court shall fix the minimum and the maxi-
mum terms of the sentence to be served within the limits
provided by law. The maximum term shall not be greater
than the maximum limit provided by law, and:
(a) The minimum term fixed by the court shall be any
term of years less than the maximum term imposed by
the court; or
(b) The minimum term shall be the minimum limit
provided by law.
[30] Because manslaughter is a Class IIA felony and pos-
session of a deadly weapon by a prohibited person is a Class
ID felony, the above-quoted portion of § 29-2204 governed
the sentences that should have been imposed. This language
obligated the district court to impose indeterminate sentences
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for these convictions. See State v. Thompson, 301 Neb. 472,
919 N.W.2d 122 (2018). As we have recently explained, an
indeterminate sentence is ordinarily articulated as either a
minimum and maximum term or a range of time for which a
defendant is to be incarcerated, as opposed to a determinate
sentence, which is when a defendant is sentenced to a single
term of years. Id. Here, the district court imposed determinate
sentences for Briggs’ convictions of manslaughter and pos-
session of a deadly weapon by a prohibited person. We have
previously found that the failure to impose an indeterminate
sentence when required by statute constitutes plain error.
Id. Given this plain error, we vacate Briggs’ sentences for
his convictions of manslaughter and possession of a deadly
weapon by a prohibited person and remand those counts
for resentencing.
[31] We note another instance of plain error in the dis-
trict court’s award of a credit for time served of 794 days
at the time of Briggs’ sentencing on his plea-based pander-
ing conviction. This followed the district court’s award of
764 days of credit for time served for his sentences on the
other charges. The district court awarded additional credit
for time served because Briggs was incarcerated during the
time period between his respective sentencing hearings. But
the second award of credit for time served constituted plain
error. While Briggs was entitled to credit for time served
prior to his initial sentencing in October 2017, he was not
entitled to additional credit after that sentencing. After Briggs
was sentenced in October 2017, he began serving his sen-
tences on the offenses of which he was convicted at trial.
We have held that a defendant is not entitled to credit for
time served when he or she is awaiting trial and sentencing
on charges, but is also serving another sentence. See State v.
Baker, 250 Neb. 896, 553 N.W.2d 464 (1996). We thus vacate
the district court’s award of 794 days’ credit for time served
and leave in place its initial award of 764 days’ credit for
time served.
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Habitual Criminal Determination.
Returning to Briggs’ assignments of error related to sentenc-
ing, Briggs asserts that the district court erred by finding that
he met the criteria of a habitual criminal under § 29-2221 and
sentencing him accordingly.
Section 29-2221(1) provides:
Whoever has been twice convicted of a crime, sentenced,
and committed to prison, in this or any other state or by
the United States or once in this state and once at least
in any other state or by the United States, for terms of
not less than one year each shall, upon conviction of a
felony committed in this state, be deemed to be a habitual
criminal . . . .
As part of its attempt to show that Briggs qualified as a
habitual criminal, the State submitted evidence of three prior
convictions. One of the prior convictions upon which the
State relied was a conviction of third degree domestic assault,
second offense, involving the same victim. The offense was
a Class IV felony for which Briggs was sentenced to a term
of 1 to 1 year’s imprisonment. Briggs contends that because
this offense was under a specific subsequent offense statute, it
would be an impermissible “‘double penalty enhancement’” to
treat this offense as a prior conviction under the habitual crimi-
nal statute. Brief for appellant at 46.
[32] Briggs’ argument is foreclosed by our opinion in
State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016). In
that case, we distinguished between triggering convictions
and prior convictions under the statute. We explained that a
triggering offense is the “offense for which the defendant is
currently being sentenced” and a prior offense is “one of the
offenses that establishes that the defendant was a habitual
criminal at the time he or she committed the triggering
offense.” Id. at 710-11, 879 N.W.2d at 701. We then observed
that the habitual criminal statute does not enhance the penalty
for prior convictions, but is applied to the penalty for the trig-
gering offense, and that thus, the fact the penalty for a prior
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conviction was itself enhanced does not result in a double
penalty enhancement of the triggering offense. Id. Instead,
even convictions that are enhanced under a specific subse-
quent offense statute can be used as prior convictions so long
as they meet the statutory requirement that such convictions
resulted in terms of imprisonment of not less than 1 year. Id.
Briggs’ third degree domestic assault, second offense, convic-
tion meets that criteria.
As noted above, the State submitted evidence of three prior
convictions. Briggs contends two of those convictions cannot
be used as prior convictions for habitual criminal purposes,
but apparently concedes that one of the convictions can. The
statute requires only two qualifying prior convictions. Having
concluded that one of the convictions Briggs challenges quali-
fied and given Briggs’ concession that one of the other convic-
tions also qualified, the district court did not err in classify-
ing Briggs as a habitual criminal and we need not determine
whether the third conviction qualified as a valid prior convic-
tion under the statute.
Excessive Sentences.
Finally, Briggs argues that his sentences were excessive.
Because we have vacated his sentences for manslaughter and
possession of a deadly weapon by a prohibited person and
remanded the matter for resentencing, we need only consider
whether his other sentences were excessive. Each of these sen-
tences was within the appropriate statutory range.
[33-35] Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate
court must determine whether a sentencing court abused its
discretion in considering and applying the relevant factors
as well as any applicable legal principles in determining the
sentence to be imposed. State v. Tucker, 301 Neb. 856, 920
N.W.2d 680 (2018). Relevant factors customarily considered
and applied are the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
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(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the com-
mission of the crime. Id. The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and all the facts and circumstances surrounding the defend­
ant’s life. Id.
Briggs concedes that the district court’s sentences were
within the statutory range, but argues that the district court
nonetheless abused its discretion by not seriously considering
mitigating factors. Briggs does not, however, actually identify
what factors he considers mitigating. We see nothing in the
record to suggest that the district court did not properly con-
sider and apply the familiar sentencing factors, and we there-
fore reject this assignment of error.
CONCLUSION
We find that Briggs’ assignments of error are without merit
and affirm his convictions. However, we find plain error in his
sentencing and therefore vacate his sentences for manslaugh-
ter and possession of a deadly weapon by a prohibited person
and remand the matter for resentencing for those offenses
in accord­ance with this opinion. We also vacate the district
court’s award of 794 days’ credit for time served.
Judgment in No. S-17-1183 affirmed in part, and
in part vacated and remanded for resentencing.
Judgment in No. S-17-1321 affirmed
in part, and in part vacated.