State v. Wells

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/20/2018 09:10 AM CDT
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STATE v. WELLS
Cite as 300 Neb. 296State of Nebraska, appellee, v.
A nthony L. Wells, appellant.
___ N.W.2d ___
Filed June 22, 2018. No. S-17-359.
1. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
2. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
3. Jury Instructions: Appeal and Error. All the jury instructions must
be read together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitat-
ing reversal.
4. 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 the evidence; 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.
5. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement. An appellate
court determines as a matter of law whether the record conclusively
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STATE v. WELLS
Cite as 300 Neb. 296shows that (1) a defense counsel’s performance was deficient or (2)
a defendant was or was not prejudiced by a defense counsel’s alleged
deficient performance.
6. 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.
7. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant 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. Otherwise, the issue will be procedurally barred.
8. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal
does not necessarily mean that it can be resolved. Such a claim may be
resolved when the record on direct appeal is sufficient to either affirm­
atively prove or rebut the merits of the claim. The record is sufficient
if it establishes either that trial counsel’s performance was not defi-
cient, that the appellant will not be able to establish prejudice, or that
trial counsel’s actions could not be justified as a part of any plausible
trial strategy.
9. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his
or her counsel’s performance was deficient and that this deficient per­
formance actually prejudiced the defendant’s defense.
10. ____: ____. To show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law.
11. ____: ____. To show prejudice, the defendant must demonstrate a rea-
sonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
12. Words and Phrases. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
13. Effectiveness of Counsel: Presumptions. The two prongs of the test
under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), may be addressed in either order, and the entire inef-
fectiveness analysis should be viewed with a strong presumption that
counsel’s actions were reasonable.
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Cite as 300 Neb. 29614. Postconviction: Effectiveness of Counsel: Records: Claims: Appeal
and Error. In the case of an argument presented for the purpose of
avoiding procedural bar to a future postconviction proceeding, appellate
counsel must present a claim with enough particularity for (1) an appel-
late 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 before the appellate court. A claim insufficiently stated is no
different than a claim not stated at all.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for
appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and H arder and Noakes, District Judges.
Miller-Lerman, J.
I. NATURE OF CASE
Anthony L. Wells appeals his convictions in the district
court for Lancaster County for first degree murder, use of
a firearm to commit a felony, possession of a firearm by a
prohibited person, and unlawful discharge of a firearm. Wells
claims, inter alia, that he was prejudiced because the court’s
instruction regarding transferred intent incorrectly stated the
law and that trial counsel provided ineffective assistance. We
affirm Wells’ convictions and sentences.
II. STATEMENT OF FACTS
The charges against Wells arose from the shooting death
of Joshua Hartwig. A group of residents had gathered out-
side Hartwig’s apartment building after hearing a disturbance.
Hartwig joined the group after the disturbance appeared to
have ended, but several minutes later a man walked up and
fired shots at the group. Hartwig was struck by a bullet and
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Cite as 300 Neb. 296died from the gunshot wound. Testimony of witnesses at Wells’
trial established the following:
In the early morning hours of January 31, 2016, Wells and
Rhani Henry, the mother of Wells’ daughter, got into a physi-
cal and verbal altercation outside Henry’s apartment building
in Lincoln, Nebraska. Both Wells and Henry appeared to be
intoxicated. Various residents of the apartment building heard
the disturbance, and some residents came outside while the
fight between Wells and Henry was ongoing. Certain residents
separated Wells and Henry, and some residents told Wells
that he needed to leave. Wells briefly argued with the resi-
dents, but then he got into his vehicle to leave. Before Wells
left, some residents heard him say words to the effect that he
would be back.
After Wells left, Hartwig and his father, Douglas Hartwig
(Douglas), who were residents of the apartment building,
joined the residents who remained outside. The group talked
about the incident that had just happened. Approximately 10
to 15 minutes later, members of the group saw or heard a man
approach and say some words to the group. The man then fired
several shots. Witnesses generally agreed that the man was
wearing a dark hooded sweatshirt with the hood pulled up and
possibly a bandanna across his face. Although the man’s face
was obscured, certain witnesses identified the man as Wells
based on his voice and physical features.
Douglas testified that he heard the man yell “‘hey mother
fuckers’” before he began shooting. Douglas turned and told
Hartwig to run for cover, and the two ran toward their apart-
ment. Douglas tripped and fell beside a car parked in front of
the apartment; when he fell, he saw and heard a bullet hit the
bumper of the car. Douglas testified that he heard “[a]t least
a half dozen” shots, then a pause, and then “at least a half
dozen more.” After the shooting stopped, Douglas got up and
heard one of the other residents say that Hartwig was “down.”
Douglas found Hartwig lying face down in front of their
apartment door. Douglas went inside to call for emergency
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Cite as 300 Neb. 296services, and when he returned to Hartwig, Douglas observed
what appeared to be a gunshot wound to Hartwig’s upper
shoulder. When emergency responders arrived, they attempted
lifesaving procedures on Hartwig, but after a short period they
declared him deceased.
Other testimony presented by the State included the testi-
mony of Artesia Holmes, a friend of Henry. Holmes testified
that she, Henry, and Wells went to a bar on the evening of
January 30, 2016, to celebrate Henry’s birthday. Before they
went to the bar, Holmes and Henry had drinks at Holmes’
apartment. When Wells arrived to pick them up, Holmes
observed that Wells was in possession of a silver and black
handgun. Henry also testified at trial, but she stated that she
did not remember anything from that night after Wells arrived
at Holmes’ apartment. Other witness testimony is discussed in
the analysis below as it relates to Wells’ claims of ineffective
assistance of trial counsel.
Physical evidence presented by the State indicated bullet
damage to various areas of the apartment building, as well as
to vehicles parked near the building. Law enforcement officers
collected 13 shell casings, 1 bullet fragment, and 2 bullets
from the scene. They found a third bullet inside a window of a
house two blocks from the scene. A firearms examiner testified
that the shell casings were all fired in the same firearm and
that they matched the caliber and manufacturer of an unfired
cartridge found in a search of Wells’ bedroom. Due to damage
to the bullets, the examiner could not determine whether the
bullets had been fired from the same gun.
Video from surveillance cameras in the area of the apart-
ment building recorded around the time of the shooting indi-
cated the following: Video from a nearby apartment complex
showed a vehicle similar to Wells’ leaving the apartment
building at 1:16 a.m. A surveillance camera at a business
near the apartment recorded the sound of 13 gunshots at 1:26
a.m. A camera located several blocks from the apartment
showed a vehicle similar to Wells’ driving by at 1:28 a.m.
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STATE v. WELLS
Cite as 300 Neb. 296When that video was enhanced, it appeared to show an object
being thrown from the vehicle. Law enforcement officers who
searched that location found a black hooded coat with a face
mask in the pocket. Testing of DNA on the inside of the mask
included Wells as a major contributor.
The State also presented evidence that Wells had a prior
conviction for possession of a firearm by a prohibited person.
After the State rested its case, Wells moved for a directed
verdict on the count of unlawful discharge of a firearm. The
court overruled Wells’ motion for a directed verdict, and Wells
proceeded to present evidence in his defense.
In his defense, Wells presented testimony by two women
who testified that Wells picked them up at a location in Council
Bluffs, Iowa, after they finished work at around 2:05 a.m. or
2:10 a.m. on January 31, 2016. He also presented evidence that
two of the State’s witnesses were unable to identify Wells from
a police photographic lineup and that one of the two identified
another person in the photographic lineup. Both witnesses had
identified Wells as the shooter based on his voice.
The court instructed the jury on the elements of the offenses
with which Wells was charged, including first degree murder
and the lesser-included offenses of second degree murder and
manslaughter. The court also gave an instruction, over Wells’
objection, regarding transferred intent. The content of the rel-
evant instructions and Wells’ objections thereto are discussed
in the analysis below.
The jury found Wells guilty of all four counts charged—first
degree murder, use of a firearm to commit a felony, possession
of a firearm by a prohibited person, and unlawful discharge of
a firearm. The court sentenced Wells to consecutive terms of
imprisonment for life for first degree murder, for 20 to 30 years
for use of a firearm to commit a felony, for 20 to 40 years for
possession of a firearm by a prohibited person (which was a
second offense), and for 10 to 10 years for unlawful discharge
of a firearm.
Wells appeals his convictions and sentences.
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STATE v. WELLS
Cite as 300 Neb. 296III. ASSIGNMENTS OF ERROR
Wells claims that the district court erred (1) when it gave an
instruction regarding transferred intent which incorrectly stated
the law and (2) when it overruled his motion for a directed ver-
dict on the count of unlawful discharge of a firearm.
Wells further claims that his trial counsel provided ineffec-
tive assistance when counsel (1) failed to object to testimony
regarding prior bad acts involving his assaults on Henry, (2)
elicited and then failed to object to hearsay testimony regard-
ing Henry’s fear of Wells, (3) failed to move for a mistrial
based on the State’s comments during closing arguments to the
effect that a witness feared Wells, and (4) failed to adequately
investigate various aspects of his defense.
IV. STANDARDS OF REVIEW
[1-3] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. State v. Schwaderer, 296 Neb. 932,
898 N.W.2d 318 (2017). In an appeal based on a claim of an
erroneous jury instruction, the appellant has the burden to show
that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant. State v.
Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016). All the jury
instructions must be read together, and if, taken as a whole,
they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal. Id.[4] 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;
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 elements of the crime
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Cite as 300 Neb. 296beyond a reasonable doubt. State v. Cotton, 299 Neb. 650, 910
N.W.2d 102 (2018).
[5] Whether a claim of ineffective assistance of trial coun-
sel can be determined on direct appeal presents a question
of law, which turns upon the sufficiency of the record to
address the claim without an evidentiary hearing or whether
the claim rests solely on the interpretation of a statute or
constitutional requirement. We determine as a matter of law
whether the record conclusively shows that (1) a defense
counsel’s performance was deficient or (2) a defendant was
or was not prejudiced by a defense counsel’s alleged deficient
­performance. Id.V. ANALYSIS
1. R eading Instructions as a Whole,
We Determine the Instruction R egarding
Transferred Intent Did Not Misstate
the Law and Was Not M isleading
Wells first claims that the district court erred when it
gave its instruction regarding transferred intent. He notes
that although the instruction referred to “intent,” it did not
contain a reference to “‘deliberate and premeditated mal-
ice.’” Brief for appellant at 11. He argues that the instruction
incorrectly stated the law as to first degree murder because it
conflated “intent” with “‘deliberate and premeditated malice’”
and “relieved the State of its burden to prove that Wells acted
with malice toward at least one of the people in the group” at
which he allegedly fired shots. Id. at 10. We conclude that the
instructions read as a whole correctly stated the law and were
not misleading.
In instruction No. 3, the court instructed the jury on
“Count I,” first degree murder, by setting forth the elements
as follows:
The elements which the State must prove beyond a
reasonable doubt in order to convict . . . Wells of Murder
in the First Degree are:
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Cite as 300 Neb. 2961. That . . . Wells killed . . . Hartwig; and
2. That . . . Wells did so purposely; and
3. That . . . Wells did so with deliberate and premedi-
tated malice; and
4. That . . . Wells did so on or about January 31, 2016,
in Lancaster County, Nebraska.
Instruction No. 3 continued by instructing on the lesser-
included offenses of second degree murder and manslaughter,
each of which included an element that Wells killed Hartwig
“intentionally.”
Over Wells’ objection, the court also gave instruction No. 7,
a transferred intent instruction, which stated as follows:
With respect to the charge in Count I, if you find that
. . . Wells intended to kill a specific person, and by mis-
take or accident killed . . . Hartwig, the element of intent
is satisfied even though . . . Wells did not intend to kill
. . . Hartwig. In such a case, the law regards the intent
as transferred from the original intended victim to the
actual victim.
Instruction No. 11, regarding intent, instructed the jury
that “[i]n deciding whether . . . Wells acted with intent (pur-
pose, knowledge, wilfulness, premeditation, deliberation) you
should consider his words and acts and all the surrounding
circumstances.”
At the jury instruction conference, Wells objected to
instruction No. 7, the transferred intent instruction, on the
basis that it was not supported by the evidence. He asserted
that the evidence showed that the shooter fired into a crowd
but that there did not appear to be a specific intent focused on
a single individual. In contrast, the State argued the jury could
find Wells guilty of first degree murder based on transferred
intent if the jury found that Wells had the requisite intent to
kill one or more of the people who had been outside during
the earlier altercation with Henry and who had traded words
with Wells but that instead he shot Hartwig. The State also
argued in the alternative that the jury could find that Wells
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Cite as 300 Neb. 296had the requisite intent to kill any or all of the people, includ-
ing Hartwig, who were standing outside the building at the
time he fired the shots, regardless of whether they had been
present at or involved in the earlier altercation.
Although Wells’ objection to instruction No. 7 at trial
focused on whether the instruction was supported by the evi-
dence, he argues on appeal that the instruction incorrectly
stated the law and was misleading. He notes that in order to
convict him of first degree murder, the jury needed to find that
he had killed Hartwig both “‘purposely’” and “with ‘deliberate
and premeditated malice.’” Brief for appellant at 14 and 16.
He argues that the phrase “the element of intent” in instruction
No. 7 refers only to the “‘purposely’” element of first degree
murder and not to the “‘malice’” element. Id. at 14 and 15. He
contends that instruction No. 7 conflated “intent” and “malice”
and allowed the jury to find him guilty of first degree murder
if it found that he intended to shoot another person without
requiring the jury to also find that he shot at another person
“with ‘deliberate and premeditated malice.’” Id. at 16. The
State generally maintains that the jury instructions as a whole
did not prejudice Wells.
As we read their arguments, both Wells and the State do not
dispute that the concept of transferred intent is applicable to
first degree murder, including where, as a general proposition,
a defendant shoots into a group of people with intent “to kill
at least one person in the group,” reply brief for appellant at
3, “even if [the defendant] did not intend for [the] specific”
actual victim to be killed, brief for appellee at 14. In this
regard, reference is made to State v. Gutierrez, 272 Neb. 995,
726 N.W.2d 542 (2007), disapproved on other grounds, State
v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016), a first degree
murder case, in which we approved of a similar transferred
intent instruction where the victims were not the intended
target. See State v. Morrow, 237 Neb. 653, 467 N.W.2d 63(1991) (considering instruction similar to Gutierrez instruc-
tion in second degree murder case). So the disagreement in
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Cite as 300 Neb. 296the instant appeal is limited to whether the jury instructions
herein satisfactorily conveyed the applicable law to the jury.
As explained below, we conclude that the instructions, taken
as a whole, were adequate.
Given the nature of Wells’ challenge, we must read the
instructions as a whole to determine whether they correctly
state the law and are not misleading. See State v. Hinrichsen,
292 Neb. 611, 877 N.W.2d 211 (2016). Doing so, contrary to
Wells’ urging, we do not read the instructions in this case as
having relieved the jury of the duty to find all the elements
of first degree murder. Instead, we note instruction No. 3 sets
forth all the elements of first degree murder, including that
Wells killed Hartwig and that he did so both purposely and
with deliberate and premeditated malice. Thus, the jury clearly
was instructed that in order to find Wells guilty of first degree
murder, it must find that the killing was committed both pur-
posely and with deliberate and premeditated malice. We read
nothing in instruction No. 7 that relieves the jury of finding
any part of these requirements.
Instruction No. 7 does not purport to substitute or eliminate
any required element of any offense charged. Instead, instruc-
tion No. 7, the transferred intent instruction, provides that if
the jury finds that Wells intended to kill another person but
by mistake or accident killed Hartwig, then “the element of
intent is satisfied” and “the law regards the intent as trans-
ferred from the original intended victim to the actual victim.”
Instruction No. 7 is not intended as a reiteration of the ele-
ments of a crime. Instead, it serves as an explication solely
regarding “intent.”
As noted above, Wells maintains that “the element of intent”
in instruction No. 7 refers only to the “‘purposely’” element
of first degree murder and not the “with ‘deliberate and pre-
meditated malice’” element. Brief for appellant at 14 and 16.
Contrary to Wells’ assertion, the language of instruction No. 7
provides no basis upon which jurors would read “the element
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Cite as 300 Neb. 296of intent” as referring to purpose but believe they had thereby
been instructed to ignore the element of deliberate and pre-
meditated malice. Instead, “the element of intent” refers to the
intent required for the specific crime charged.
Our reading of instruction No. 7 is bolstered by instruc-
tion No. 11, noted above, in which the court instructed the
jury that “[i]n deciding whether . . . Wells acted with intent
(purpose, knowledge, wilfulness, premeditation, deliberation)
you should consider his words and acts and all the surround-
ing circumstances.” Instruction No. 11 communicates to the
jury that “intent” includes, inter alia, “purpose,” “premedita-
tion,” and “deliberation” when those are required elements of
a charge.
We note that Wells compares the wording of instruction
No. 7 to the wording of transferred intent instructions given in
cases such as State v. Iromuanya, 272 Neb. 178, 719 N.W.2d
263 (2006), and State v. Gutierrez, 272 Neb. 995, 726 N.W.2d
542 (2007), disapproved on other grounds, State v. Britt, 293
Neb. 381, 881 N.W.2d 818 (2016). He particularly notes that
the instruction in Gutierrez refers more generally to “‘the
crime’” committed rather than to the “element of intent.” Brief
for appellant at 15 and 16. See, also, State v. Morrow, 237 Neb.
653, 467 N.W.2d 63 (1991). Our analysis in this case is spe-
cific to the entirety of the instructions given in this case, and
we make no comment on whether the instruction given in this
case or the instruction given in another case is the preferable
form of an instruction on transferred intent. Our conclusion is
merely that the specific instructions given in this case, when
read as a whole, correctly state the law, are not misleading, and
are supported by the evidence, and there is no prejudicial error
necessitating reversal. See State v. Hinrichsen, 292 Neb. 611,
877 N.W.2d 211 (2016).
Because we conclude that the district court did not err when
it gave instruction No. 7 over Wells’ objection, we reject Wells’
first assignment of error.
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Cite as 300 Neb. 2962. Evidence Was Sufficient to Support
Conviction for Unlawful
Discharge of a Firearm
[6] Wells next claims that the district court erred when it
overruled his motion for a directed verdict on the count of
unlawful discharge of a firearm. The record indicates that
after the court overruled Wells’ motion for a directed verdict,
he proceeded to present evidence in his defense. 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 pros-
ecution, 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. State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699(2016). Wells assigns error to the overruling of his motion for
a directed verdict, but he argues the error as a challenge to
the sufficiency of the evidence to support his conviction for
unlawful discharge of a firearm. We consider Wells’ assign-
ment of error as a challenge to the sufficiency of the evidence,
but we conclude that there was sufficient evidence to support
the conviction.
Wells was charged with unlawful discharge of a firearm,
in violation of Neb. Rev. Stat. § 28-1212.02 (Reissue 2016),
which provides that a person is guilty of the offense if the
person “unlawfully and intentionally discharges a firearm at[,
inter alia,] an inhabited dwelling house, occupied building,
[or] occupied motor vehicle.” Wells argues that the evidence
in this case showed that none of the vehicles that were hit by
bullets were occupied and that there was no evidence of bullets
hitting doors or windows of specific apartments in the build-
ing. He contends that the evidence showed that the shooter
was aiming at the people gathered outside the building rather
than at the building itself. He notes that a bullet was found
inside a window of a house two blocks from the scene but he
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at that house.
The State in its response does not rely on the bullets found
either in the vehicles or in the house two blocks away as
establishing this offense. Instead, the State relies on evidence
that bullets were found in parts of the apartment building
structure, including the rafters and supporting beams, and con-
tends such evidence establishes that a firearm was discharged
at the building. The State asserts that Wells does not dispute
that the apartment building was occupied at the time the shots
were fired.
The evidence noted by the State supports a finding that
Wells fired shots at the apartment building and that the build-
ing was occupied at the time. The evidence was also such that
the jury could reasonably infer that Wells intended to shoot at
the building. The statute requires a finding that the defendant
intentionally discharged a firearm at an occupied building; we
do not read the statute as requiring that the firearm be aimed
at a specific part of the building such as a specific apartment
or at a door or window. Evidence that Wells discharged a fire-
arm at the building, that he did so intentionally, and that the
building was occupied at the time was sufficient to support
the conviction.
We conclude that viewing the evidence in the light most
favorable to the State, a rational trier of fact could have found
the elements of unlawful discharge of a firearm beyond a rea-
sonable doubt. We reject this assignment of error.
3. Wells’ Claims of Ineffective Assistance of
Trial Counsel Either A re Without Merit
or Cannot Be Determined Based
on R ecord on Direct A ppeal
Wells claims that his trial counsel provided ineffective
assist­
ance in various respects. He specifically claims that
counsel (1) failed to object to testimony regarding prior bad
acts involving assaults on Henry, (2) elicited and then failed
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(3) failed to move for a mistrial based on the State’s comments
during rebuttal closing arguments to the effect that a witness
feared Wells, and (4) failed to adequately investigate various
aspects of his defense. We first set forth applicable standards
and then consider each of these specific claims below.
[7] On appeal, Wells has counsel different from his trial
counsel. 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. Otherwise, the issue will be procedurally barred. State
v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
[8] The fact that an ineffective assistance of counsel claim is
raised on direct appeal does not necessarily mean that it can be
resolved. Id. Such a claim may be resolved when the record on
direct appeal is sufficient to either affirmatively prove or rebut
the merits of the claim. The record is sufficient if it establishes
either that trial counsel’s performance was not deficient, that
the appellant will not be able to establish prejudice, or that
trial counsel’s actions could not be justified as a part of any
plausible trial strategy. Id.[9-13] 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. Cotton, supra. To show deficient performance,
a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in crimi-
nal 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 dif-
ferent. Id. A reasonable probability is a probability sufficient
to undermine confidence in the outcome. Id. The two prongs
of this test may be addressed in either order, and the entire
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Cite as 300 Neb. 296ineffectiveness analysis should be viewed with a strong pre-
sumption that counsel’s actions were reasonable. Id.(a) Testimony Regarding
Prior Bad Acts
Wells claims that he received ineffective assistance when
trial counsel failed to object to testimony regarding prior bad
acts involving assaults on Henry. One witness who observed
the altercation between Wells and Henry testified that he said
to another witness that “[Henry’s] baby daddy is outside beat-
ing her up again.” Another witness who observed the alterca-
tion between Wells and Henry on January 31, 2016, testified
that in the summer of 2015, she had witnessed an altercation
between Wells and another woman and that at that time, Wells
put his hand around Henry’s mouth and throat when Henry
tried to hold him back from the other woman. Wells’ trial coun-
sel did not object to either witness’ testimony.
Wells claims on appeal that trial counsel was ineffective
for failing to object to what he asserts was inadmissible prior
bad acts evidence. He argues that failure to object was defi-
cient performance because in order for the court to admit the
evidence, the State would have been required to articulate
a proper purpose, other than showing Wells’ propensity for
violence. He argues that even if the evidence were admitted
for some proper purpose, the jury should have been given an
instruction limiting use of the evidence to such proper purpose.
He argues that trial counsel’s failure prejudiced him because
the jury was able to consider the evidence as showing that he
committed the charged crimes because he had a propensity
for violence.
We conclude that whether or not counsel’s performance was
deficient in this respect, Wells was not prejudiced, because
there is not a reasonable probability that the result of the pro-
ceeding would have been different if counsel had objected
to this testimony. Indeed, an objection and limiting instruc-
tion might have highlighted the testimony. In any event, the
testimony noted by Wells was minor in the context of all the
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Cite as 300 Neb. 296evidence that was presented by the State. In this regard, we
specifically note that there was other properly admitted testi-
mony regarding Wells’ violent behavior toward Henry on the
night of the shooting. Given all the evidence, it is not reason-
ably probable that the testimony noted by Wells significantly
affected the jury’s verdict. We reject this claim of ineffective
assistance of trial counsel.
(b) Hearsay Testimony
Wells next claims that he received ineffective assistance
when his trial counsel elicited and then failed to object to
hearsay testimony regarding Henry’s fear of Wells. Wells’
trial counsel asked one of the State’s witnesses on cross-
examination whether he had talked with Henry about Wells,
and the witness testified that he “heard some comments about
[Henry’s] wanting to get away from” Wells and that Henry said
“she loved him and that she was also scared of him.”
On appeal, Wells contends that trial counsel was ineffec-
tive for eliciting this testimony and for failing to object to
the testimony as nonresponsive and as hearsay. He argues
that the line of questioning could not be justified as a reason-
able strategic decision and that the error was compounded
when counsel failed to ask the court to strike the testimony
as nonresponsive or as hearsay. He argues he was prejudiced
by this testimony because it further portrayed him as having
a violent nature.
We conclude that no prejudice was shown because this tes-
timony, like the testimony discussed above, was minor in the
context of all the properly admitted evidence and that there
is not a reasonable probability the result of the proceeding
would have been different if trial counsel either had not elic-
ited the testimony or had objected to it. We reject this claim
of ineffective assistance of trial counsel.
(c) Mistrial
Wells next claims that he received ineffective assistance
when trial counsel failed to move for a mistrial based on the
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Cite as 300 Neb. 296State’s comments during rebuttal closing arguments regarding
a witness’ alleged fear of Wells. One of the State’s witnesses
testified that she knew Wells and had seen him a few times
with Henry. The State asked the witness whether she saw
Wells in the courtroom, and she replied that she did not. In its
closing argument in rebuttal, the State referred to that witness
and said:
I said do you see . . . Wells in the courtroom? What did
she do? She sat there and she looked at all of you and
looked over here and then she looked up and she was
looking at the ceiling. I asked her if she saw . . . Wells
in the courtroom. And she would - really? Was he up on
the ceiling, or was she for some reason afraid of identify-
ing him?
Wells’ trial counsel objected to the prosecutor’s statement.
The court sustained the objection, struck the comment, and
instructed the jury to disregard it. Wells’ counsel did not there-
after move for a mistrial.
On appeal, Wells claims trial counsel was ineffective for
failing to move for a mistrial because, given other improp-
erly admitted evidence regarding Wells’ violent nature, the
court’s instruction to disregard the State’s comment could not
“‘unring’ the bell.” Brief for appellant at 26. He argues that
his defense was prejudiced because a defense motion would
have been sustained and a mistrial would have been granted.
Wells relies on the proposition that a mistrial may be warranted
where unfairness has been injected into a jury trial and so per-
meates the proceedings that no amount of admonition to the
jury can remove the unfairness to a party. State v. Pierce, 231
Neb. 966, 439 N.W.2d 435 (1989).
We disagree with Wells’ assessment that a mistrial would
have been granted. The court’s sustaining Wells’ objection and
admonishing the jury were a sufficient response to the State’s
comment, and we do not think the comment injected unfairness
that so permeated the proceedings that admonition to the jury
could not remove it. There was not a reasonable probability
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Cite as 300 Neb. 296that a mistrial would have been granted if counsel had moved
for it, and we therefore reject this claim of ineffective assist­
ance of counsel.
(d) Cumulative Effect
Wells argues that even if each of the preceding alleged fail-
ures is insufficient in itself to establish ineffective assistance
of counsel, the cumulative effect of all the alleged deficiencies
amounts to ineffective assistance. We determined above that
none of the alleged deficiencies prejudiced Wells’ defense, and
we likewise conclude that the cumulative effect of the alleged
deficiencies did not prejudice Wells’ defense.
(e) Investigation
Finally, Wells claims that trial counsel was ineffective for
failing to adequately investigate various aspects of his defense.
He asserts that the record is not sufficient to review these
claims of inadequate investigation on direct appeal but that
he is raising the claims in order to preserve them for collat-
eral review.
[14] In the case of an argument presented for the purpose
of avoiding procedural bar to a future postconviction proceed-
ing, appellate counsel must present a 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
before the appellate court. State v. Cotton, 299 Neb. 650, 910
N.W.2d 102 (2018). A claim insufficiently stated is no different
than a claim not stated at all. Id.Wells set forth the following claims in his brief:
Wells’ trial counsel provided ineffective assistance when,
despite Wells’ requests, he failed to independently inves-
tigate or present the following defenses, and he failed
to interview, depose, or subpoena each of the following
entities and potential witnesses who would have provided
evidence helpful to Wells’ defense:
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Cite as 300 Neb. 296• Trial counsel received information from . . . Henry that
an acquaintance’s boyfriend committed the shootings,
but [counsel] failed to investigate;
• Trial counsel failed to impeach [a police witness] when
he testified that . . . sight of Wells’ vehicle [was lost
in] the [video] recordings when Wells’ vehicle, after
leaving the . . . apartments following the argument with
Henry, went eastbound . . . , despite trial counsel’s pos-
session of police reports in which [the police witness]
and/or other officers stated that the video showed Wells
traveling eastbound . . . , then Southbound . . . , a route
that took Wells to . . . Council Bluffs;
• Trial counsel failed to subpoena cell phone records that
would have demonstrated (1) pinging locations making
it impossible for him to commit the shooting, and (2)
that Wells’ regular calling pattern was very similar to
the calling pattern relied upon by the State to argue in
support of Wells’ guilt;
• 
Trial counsel failed to introduce into evidence a
photograph of Wells at the time of the shootings to
demonstrate that his hair did not match the witness’
descriptions;
• 
Trial counsel failed to subpoena or otherwise obtain
video evidence from businesses along the route from
the . . . apartments to . . . Council Bluffs that would
have shown he was not present at the . . . apartments at
the time of the shootings;
• Trial counsel failed to consult or engage a voice rec-
ognition expert to contest the State’s witnesses’ claims
that they recognized the voice of the shooter as Wells[’]
despite having very little, if any, exposure to the sound
of Wells’ voice;
• 
Trial counsel failed to consult or engage a firearms
expert to evaluate and contest the testimony of the
State’s firearms expert, whose testimony overstated the
likelihood that it was a gun like the one Wells allegedly
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Cite as 300 Neb. 296set on Holmes’ bed that fired the bullets and casings
found at the scene of the shootings;
• Trial counsel failed to move for testing of swabs taken
from Wells’ hands that, had they been subjected to gun-
shot residue testing, would have shown that Wells did
not fire a gun at the time of the shootings.
Brief for appellant at 33-34.
We agree that these claims cannot be determined on direct
appeal, because the record on appeal does not disclose what
steps trial counsel took in regard to these avenues of investiga-
tion, what would have been found if the various actions had
been taken by counsel, and whether the findings would have
helped Wells’ defense. We include this listing so that a dis-
trict court reviewing any petition for postconviction relief that
Wells might bring in the future will be able to recognize what
claims were brought before this court on direct appeal.
VI. CONCLUSION
We conclude that instruction No. 7, the transferred intent
instruction, when read with all the instructions, did not mis-
state the law; that there was sufficient evidence to support
Wells’ conviction for unlawful discharge of a firearm; and that
Wells’ claims of ineffective assistance of trial counsel either
are without merit or cannot be determined based on the record
in this direct appeal. We therefore affirm Wells’ convictions
and sentences.
A ffirmed.