State v. Cox

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/27/2023 08:04 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. COX
Cite as 314 Neb. 104State of Nebraska, appellee, v.
Forrest R. Cox III, appellant.
___ N.W.2d ___
Filed April 27, 2023. No. S-22-542.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo
a determination that the defendant failed to allege sufficient facts to
demonstrate a violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is entitled to
no relief.
2. Postconviction: Right to Counsel: Appeal and Error. An appellate
court reviews the failure of the district court to provide court-appointed
counsel in a postconviction proceeding for an abuse of discretion.
3. Postconviction: Constitutional Law: Judgments: Proof. Postconvic­
tion relief is available to a prisoner in custody under sentence who
seeks to be released on the ground that there was a denial or infringe-
ment of his or her constitutional rights such that the judgment was void
or voidable.
4. Postconviction: Constitutional Law: Proof. In a motion for postcon-
viction relief, the defendant must allege facts which, if proved, consti-
tute a denial or violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to be void
or voidable.
5. ____: ____: ____. The district court must grant an evidentiary hearing to
resolve the claims in a postconviction motion when the motion contains
factual allegations which, if proved, constitute an infringement of the
defendant’s rights under the state or federal Constitution.
6. Postconviction: Pleadings. The allegations in a motion for postcon-
viction relief must be sufficiently specific for the district court to
make a preliminary determination as to whether an evidentiary hearing
is justified.
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STATE V. COX
Cite as 314 Neb. 1047. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the motion
does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
8. Constitutional Law: Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the fundamental con-
stitutional right to a fair trial.
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
perform­ance actually prejudiced the defendant’s defense.
10. Effectiveness of Counsel: Presumptions: Proof. 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
ineffectiveness analysis should be viewed with a strong presumption that
counsel’s actions were reasonable.
11. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
Error. To show prejudice under the prejudice component of the test
under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), the defendant must demonstrate a reasonable probability
that but for his or her counsel’s deficient performance, the result of the
proceeding would have been different. A reasonable probability does
not require that it be more likely than not that the deficient perform­ance
altered the outcome of the case; rather, the defendant must show a prob-
ability sufficient to undermine confidence in the outcome.
12. Postconviction. In a motion for postconviction relief, a defendant is
required to specifically allege what the testimony of potential witnesses
would have been if they had been called at trial in order to avoid dis-
missal without an evidentiary hearing.
13. ____. Absent specific allegations, a motion for postconviction relief
effectively becomes a discovery motion to determine whether evidence
favorable to a defendant’s position actually exists.
14. Effectiveness of Counsel: Jury Instructions. Defense counsel is
not ineffective for failing to object to jury instructions that, when
read together and taken as a whole, correctly state the law and are
not misleading.
15. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence to
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. COX
Cite as 314 Neb. 104sustain 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.
16. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact, and a conviction will be affirmed, in the
absence of prejudicial error, if the evidence admitted at trial, viewed
and construed most favorably to the State, is sufficient to support
the conviction.
17. Postconviction: Constitutional Law. A claim of actual innocence may
be a sufficient allegation of a constitutional violation under the Nebraska
Postconviction Act.
18. Postconviction: Evidence. The essence of a claim of actual innocence
is that the State’s continued incarceration of such a petitioner without an
opportunity to present newly discovered evidence is a denial of proce-
dural or substantive due process.
19. Postconviction: Evidence: Presumptions: Proof. The threshold to
entitle a prisoner to an evidentiary hearing on a postconviction claim of
actual innocence is extraordinarily high. Such a petitioner must make a
strong demonstration of actual innocence because after a fair trial and
conviction, the presumption of innocence vanishes.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
Forrest R. Cox III, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Forrest R. Cox III appeals the order of the district court
for Douglas County which denied his motion for postconvic-
tion relief without an evidentiary hearing. Cox, who is serv-
ing consecutive sentences for three convictions, including
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. COX
Cite as 314 Neb. 104a life sentence for first degree murder, set forth claims of
ineffective assistance of counsel both at trial and on direct
appeal. The district court determined that all of Cox’s claims
were either insufficiently pled or affirmatively refuted by the
record, and it therefore denied his motion for postconviction
relief without an evidentiary hearing. Although our reasoning
differs somewhat from that of the district court, we affirm.
II. STATEMENT OF FACTS
Cox was convicted of first degree murder, use of a deadly
weapon to commit a felony, and possession of a deadly weapon
by a prohibited person. The charges arose from a shooting in
the parking lot of a convenience store in Omaha, Nebraska, on
March 6, 2017. The victim of the shooting, Laron Rogers, died
of his injuries on March 22. The district court sentenced Cox
to imprisonment for life for the murder conviction, for 25 to
30 years for the use conviction, and for 40 to 45 years for the
possession conviction; the court ordered the sentences to be
served consecutively.
In Cox’s direct appeal, State v. Cox, 307 Neb. 762, 763-66,
985 N.W.2d 395, 397-99 (2020), we set forth the evidence in
this case as follows:
According to testimony and evidence presented at trial,
an employee of the convenience store called emergency
services upon learning of a shooting in the parking lot of
the store. Rogers was lying on the ground. Rogers was
initially stabilized and taken to a hospital, but he did not
respond to questions about who had shot him.
Two different witnesses at the scene of the shooting
testified that Rogers was leaning into a white vehicle
without license plates, which vehicle was identified by
both witnesses as a Chevy Impala. According to the wit-
nesses, it appeared that Rogers was talking to the occu-
pants of the vehicle. A gunshot was heard, and Rogers
walked a few steps before collapsing. The witnesses
both testified that the white Impala then drove off.
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STATE V. COX
Cite as 314 Neb. 104Law enforcement later obtained surveillance video from
the scene and confirmed that the suspect vehicle was a
white Impala.
During the course of the investigation, law enforcement
visited Rogers’ place of employment, a cell phone store,
and spoke with the store manager. The manager showed
law enforcement video clips that were taken earlier on
the day of Rogers’ shooting. The video clips showed two
men inside the store. According to the manager, cowork-
ers had seen Rogers outside the store interacting with the
men prior to the men entering the store. Law enforce-
ment was able to identify Cox at the time the clips were
viewed. Shortly thereafter, the other man was identified
as Rufus Dennis.
The manager provided law enforcement with a piece
of paper with “Bubba” and the phone number “. . . 6473”
written on it. According to one of Rogers’ coworkers, the
phone number on the piece of paper was the phone num-
ber provided by Cox as he sought assistance with his cell
phone at the store. Other evidence at trial revealed that
Cox’s nickname was “Bubba.”
That same coworker also testified that Rogers left work
at approximately 6 p.m. but stayed in the parking lot, sit-
ting in his car with a friend. The friend was a manager at
a different branch of the same cell phone company that
employed Rogers. She had stopped by to pick up phones
for her store and stayed to smoke marijuana and talk with
Rogers in his car after he got off work. The friend testi-
fied that Rogers smoked and dealt marijuana.
According to the friend, while she was in Rogers’ car,
two men in a white Chevy Impala, with no license plates
and displaying in-transit stickers, parked at the store.
One of the men—whom she identified at trial as Cox—
stopped at Rogers’ car to talk to Rogers. The friend
said that Cox wanted to buy some marijuana, but that
Rogers did not have enough on hand. Rogers and Cox
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STATE V. COX
Cite as 314 Neb. 104exchanged telephone numbers and agreed to be in touch
later that day. Cox and the other man, unknown to the
friend but later identified as Dennis, went into the store;
the friend and Rogers left the store’s parking lot in their
separate vehicles.
During the course of the investigation, law enforce-
ment determined that Rogers owed his drug supplier
money. Both Rogers’ fellow employee and Rogers’ friend
testified that Rogers had asked them for money, though
both declined to give him any. After leaving work, Rogers
went to the home he shared with his mother and father.
He asked his father for money and received $200. In
addition, bank records show that Rogers withdrew nearly
$950 from his bank accounts on the day of the shooting.
That money was not recovered.
After identifying Cox and obtaining the paper with the
phone number on it, law enforcement sought subscriber
information for that number. A warrant was issued, and
the cell phone records from January 1 to March 24, 2017,
including cell site location information (CSLI), were pro-
vided to law enforcement. In addition, law enforcement
had access to Rogers’ cell phone.
According to the record, Rogers sent a text message to
Cox at 6:37 p.m. the day of the shooting that said, “This
Ronno.” Cell phone records show that there were several
phone calls between Rogers and Cox on March 6, 2017,
in the hour or so leading up to the shooting, but that there
were no calls between the two within the approximately
2 months preceding the shooting. CSLI records further
showed that Cox’s phone was in the area of the shooting
at the time and that he was not in the area of his pur-
ported alibi.
Evidence offered at trial also linked Cox to a white
Chevy Impala. When questioned by law enforcement,
Dennis admitted that he had access to a white Impala
that was registered in the name of his mother. Dennis
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STATE V. COX
Cite as 314 Neb. 104led officers to the white Impala, which was parked near
Cox’s brother’s residence. The car was impounded. The
license plate screws on the car looked new, and there
were what appeared to be glue marks from in-transit
stickers in the window. Inside the car was a steering
wheel cover and two remaining license plate screws in
original packaging, along with a receipt from an auto
parts store for the purchase of a steering wheel cover and
license plate screws. Further investigation revealed video
showing Cox purchasing those items.
Law enforcement was unable to locate Cox until
February 26, 2018. During his interview, Cox acknowl-
edged that his phone number was the same number end-
ing in 6473; that he knew Rogers; that he had met with
Rogers on March 6, 2017, the day of [the] shooting; and
that he wanted to obtain marijuana. Cox denied shooting
Rogers and said he was with a female friend during the
evening of the shooting. That friend, who testified that
Rogers was her uncle, also testified that she did not recall
seeing Cox on March 6 or 7 and that she did not see him
until early April. In addition, as previously noted, Cox’s
CSLI data suggested that he was not at this friend’s home
on the day of the shooting.
Cox was represented by the public defender’s office at trial
and on direct appeal. At trial, the case was submitted to the
jury on a theory of felony murder of Rogers, in which the
predicate felony was robbery of either cash or marijuana. In
his direct appeal to this court, Cox assigned error to the over-
ruling of his motions to suppress evidence of his cell phone
records and to suppress statements he made to law enforcement
officers. We rejected Cox’s assignments of error and affirmed
his convictions and sentences. State v. Cox, 307 Neb. 762, 985
N.W.2d 395 (2020).
On November 10, 2021, Cox filed a pro se verified motion
for postconviction relief in which he set forth claims of
ineffective assistance of counsel both at trial and on direct
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STATE V. COX
Cite as 314 Neb. 104appeal. He also filed a motion for appointment of postconvic-
tion counsel. Cox claimed that counsel provided ineffective
assistance at trial because counsel (1) failed to interview,
depose, and call three witnesses, (2) failed to investigate poten-
tial defenses, and (3) failed to object to three jury instructions.
Cox also claimed that counsel provided ineffective assist­ance
because counsel failed to assign and argue sufficiency of the
evidence on direct appeal. Cox also made allegations of actual
innocence. Cox’s allegations regarding each claim will be dis-
cussed further in our analysis below.
On November 30, 2021, the district court ordered the State
to file a response to Cox’s motion for postconviction relief. On
December 17, before the State filed its response, Cox filed a
motion in which he requested “leave to add [certain exhibits]
to the record.” On January 4, 2022, the court entered an order
in which it denied Cox’s motion to add exhibits as premature.
The court stated that after it received a response from the
State, it would enter an order determining whether Cox was
entitled to an evidentiary hearing, and that if it granted an evi-
dentiary hearing, it would allow Cox to offer exhibits at that
time. The State filed its response on February 28 and asserted
in general terms that Cox’s “motion only alleges conclusions
of fact, or the records and files affirmatively show [Cox] is
[not] entitled to . . . relief.” The State therefore moved the
court to deny Cox’s motion for postconviction relief without
an evidentiary hearing.
The district court filed an order on July 1, 2022, in which
it determined that none of Cox’s claims warranted an evi-
dentiary hearing. The court’s reasoning as to each claim is
discussed further in our analysis below. The court dismissed
Cox’s motion for postconviction relief without an evidentiary
hearing and overruled his motion for appointment of counsel.
Cox appeals the district court’s order.
III. ASSIGNMENTS OF ERROR
Cox claims that the district court erred when it (1) over-
ruled his motion to add exhibits to the record, (2) dismissed
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STATE V. COX
Cite as 314 Neb. 104his motion for postconviction relief without an eviden-
tiary hearing, and (3) overruled his motion for appointment
of counsel.
IV. STANDARDS OF REVIEW
[1,2] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirma-
tively show that the defendant is entitled to no relief. State v.
Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). An appellate
court reviews the failure of the district court to provide court-
appointed counsel in a postconviction proceeding for an abuse
of discretion. State v. Oliveira-Coutinho, 304 Neb. 147, 933
N.W.2d 825 (2019).
V. ANALYSIS
1. District Court Did Not Abuse Its Discretion
When It Overruled Cox’s Motion to
Add Exhibits to the Record
Cox first claims that the district court abused its discretion
when it overruled his motion to add exhibits to the record. We
find no abuse of discretion.
Cox argues that attaching relevant exhibits to a postconvic-
tion motion is an accepted practice in Nebraska and that such
exhibits may be considered by courts considering the motion.
He asserts that the exhibits he sought to add to the record
were newly discovered evidence that he had sought to attach
to his motion for postconviction relief but that the clerk of
the district court mistakenly mailed the exhibits back to him
rather than filing them with the motion. He argues that the
court abused its discretion when it overruled his motion to
add the exhibits to the record and failed to correct the mistake
of the clerk.
In that motion, Cox sought to “add [the] exhibits to the
record” rather than to attach them to the postconviction
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Cite as 314 Neb. 104motion. Cox does not assert that he had attempted to attach
the exhibits to his postconviction motion; instead, he asserts
that he attempted to “send or file” the exhibits but that the
clerk “mailed them back” because they lacked a case number.
Cox’s postconviction motion made no reference to exhibits or
other attachments to the postconviction motion. In view of the
foregoing, the district court read the motion as a request to add
evidence to the record. The court reasoned that in the absence
of an order setting an evidentiary hearing on the postconviction
motion, the addition of evidence to supplement the record was
premature. The court stated that evidence would be received if
and when the court granted an evidentiary hearing. See Neb.
Rev. Stat. § 29-3001(2) (Reissue 2016) and State v. Lessley,
supra (evidentiary hearing not required if motion does not
contain adequate factual allegations or record shows prisoner
entitled to no relief).
We find no error in the district court’s reasoning, and we
determine that the court did not abuse its discretion when it
overruled Cox’s motion to add exhibits to the record. We there-
fore reject this assignment of error.
2. District Court Did Not Err When
It Dismissed Cox’s Motion for
Postconviction Relief Without
an Evidentiary Hearing
Cox next claims that the district court erred when it dis-
missed his motion for postconviction relief without an eviden-
tiary hearing. In our de novo review, we conclude that each of
Cox’s claims for postconviction relief was inadequately pled
or was refuted by the record and that therefore, the district
court did not err when it dismissed his motion without an
evidentiary hearing. We begin our analysis by setting forth
standards that are applicable to our review of postconviction
claims, and we then review each of Cox’s claims pursuant to
those standards.
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STATE V. COX
Cite as 314 Neb. 104(a) Postconviction Standards
[3-5] Postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground
that there was a denial or infringement of his or her consti-
tutional rights such that the judgment was void or voidable.
State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). Thus,
in a motion for postconviction relief, the defendant must allege
facts which, if proved, constitute a denial or violation of his or
her rights under the U.S. or Nebraska Constitution, causing the
judgment against the defendant to be void or voidable. State
v. Lessley, supra. The district court must grant an evidentiary
hearing to resolve the claims in a postconviction motion when
the motion contains factual allegations which, if proved, con-
stitute an infringement of the defendant’s rights under the state
or federal Constitution. State v. Lessley, supra.[6,7] However, the allegations in a motion for postconvic-
tion relief must be sufficiently specific for the district court to
make a preliminary determination as to whether an evidentiary
hearing is justified. Id. An evidentiary hearing is not required
on a motion for postconviction relief when (1) the motion does
not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering
the judgment void or voidable; (2) the motion alleges only
conclusions of fact or law without supporting facts; or (3)
the records and files affirmatively show that the defendant is
entitled to no relief. Id.[8-10] Cox’s claims for postconviction relief assert that
he received ineffective assistance of counsel. A proper inef-
fective assistance of counsel claim alleges a violation of
the fundamental constitutional right to a fair trial. State v.
Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022). 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. Cullen,
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STATE V. COX
Cite as 314 Neb. 104supra. The two prongs of this test may be addressed in either
order, and the entire ineffectiveness analysis should be viewed
with a strong presumption that counsel’s actions were reason-
able. Id.
[11] To show prejudice under the prejudice component of
the Strickland test, the defendant must demonstrate a reason-
able probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been dif-
ferent. Id. A reasonable probability does not require that it be
more likely than not that the deficient performance altered the
outcome of the case; rather, the defendant must show a prob-
ability sufficient to undermine confidence in the outcome. Id.
See, also, Chinn v. Shoop, ___ U.S. ___, 143 S. Ct. 28, 214 L.
Ed. 2d 229 (2022) (Jackson, J., dissenting from denial of cer-
tiorari; Sotomayor, J., joins).
Cox set forth claims of ineffective assistance of counsel
for failing to interview, depose, and call witnesses, failing to
investigate defenses, failing to object to jury instructions, and
failing to assign and argue sufficiency of the evidence on direct
appeal. Cox also asserts that he set forth a claim of actual
innocence. On appeal, he argues that each of these claims
warranted an evidentiary hearing and the granting of postcon-
viction relief. We apply the principles set forth above to our
review of Cox’s claims.
(b) Failure to Investigate Defenses
and Witnesses
Cox’s first two claims of ineffective assistance of trial coun-
sel were that counsel failed to interview, depose, and call cer-
tain witnesses who could provide testimony regarding his two
main theories of defense and that counsel failed to adequately
investigate certain defenses. The two claims are intertwined
because Cox generally alleged that the three witnesses would
provide information relevant to his defenses.
The first asserted defense urged by Cox was his conten-
tion that Rufus Dennis was an alternate suspect and that
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STATE V. COX
Cite as 314 Neb. 104Dennis, and not Cox, had access to and control of the white
Chevy Impala that was identified by witnesses as being pres-
ent at the shooting. Cox contended that Dennis and Dennis’
mother could provide testimony relevant to this defense.
Cox generally alleged that although he and Dennis had been
together earlier on the day of the shooting, the two parted
ways prior to the crimes. Cox alleged that when they parted
ways, Cox left his cell phone in the Impala that Dennis con-
tinued to drive.
Cox alleged that despite his urging, trial counsel failed to
investigate Dennis as a suspect. Cox alleged that he told coun-
sel that Dennis attempted to set Cox up for the shooting and
that such attempt included saddling Cox with the Impala by
selling it to Cox when Dennis knew it was connected to the
shooting. Cox also alleged that as part of the attempt to set up
Cox, Dennis left the Impala near Cox’s brother’s house and
later led police to it at that location.
Cox alleged that his counsel failed to interview Dennis
about the foregoing alleged facts, and Cox further alleged
that Dennis would testify, inter alia, that he had control of
the Impala the entire day of the shooting and that he and Cox
parted ways before the time of the shooting. Cox also alleged
that Dennis’ mother would testify that the Impala belonged to
her and that she loaned it to Dennis but that she would never
have allowed him to loan it to another person. Cox further
alleged that both Dennis and his mother would have testified
that at the time of the shooting, both Dennis and the Impala
were at the house of Dennis’ mother.
The other defense that Cox claimed counsel failed to pur-
sue was related to cash that Rogers had collected on the day
of the shooting but that was not found on his person after the
shooting. Essentially, Cox urges that he did not rob cash from
Rogers because Rogers had paid on a debt earlier in the day
and therefore had no cash for him to rob.
Cox alleged that William McNeal supplied drugs to Rogers
and that Rogers owed McNeal money. Cox alleged that
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Cite as 314 Neb. 104McNeal would have testified that on the day of the shoot-
ing, he and Rogers had argued over money Rogers owed to
McNeal and that at approximately 7:30 p.m., Rogers had come
to McNeal’s house and paid him $1,100 toward the debt. Cox
asserted that part of the State’s case against him was that
Cox robbed Rogers of cash that Rogers had collected earlier
in the day. To counter the State’s case, evidence that Rogers
had given $1,100 to McNeal would explain why the cash was
not found on Rogers’ person after the shooting and would have
supported Cox’s defense that he did not rob Rogers; therefore,
there was no predicate felony to support a conviction for
felony murder. Cox alleged that counsel failed to investigate
this line of defense and failed to interview, depose, and call
McNeal as a witness.
With regard to Cox’s claims that trial counsel failed to
investigate defenses and to pursue witnesses, the district court
found that “the facts alleged by [Cox] relating to failure to
investigate are generic and most importantly, do not state what
exculpatory evidence would have been gathered or how such
evidence would have changed the outcome of the trial.” The
court further found that Cox “merely alleges generic statements
as to prejudice.” The court therefore concluded that Cox’s alle-
gations relating to failure to investigate defenses and witnesses
were “insufficient to warrant an evidentiary hearing.”
[12,13] We have stated that in a motion for postconviction
relief, a defendant is required to specifically allege what the
testimony of potential witnesses would have been if they had
been called at trial in order to avoid dismissal without an evi-
dentiary hearing. State v. Munoz, 309 Neb. 285, 959 N.W.2d
806 (2021). Absent specific allegations, a motion for post-
conviction relief effectively becomes a discovery motion to
determine whether evidence favorable to a defendant’s position
actually exists. Id.But contrary to the district court’s finding that Cox did not
specifically allege what evidence would have been discov-
ered, we determine that Cox made specific allegations with
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Cite as 314 Neb. 104regard to witnesses and the substance of what those witnesses
would have stated. Cox identified three specific witnesses—
McNeal, Dennis, and Dennis’ mother—and he alleged specific
testimony that each of those witnesses would have provided.
Therefore, this was not an instance in which a defendant
alleged that counsel should have investigated unspecified wit-
nesses or alleged that counsel should have investigated spe-
cific witnesses but failed to allege what specific information
those witnesses would have provided. Given Cox’s allegations
of evidence counsel would have discovered by interview-
ing the witnesses and investigating the defenses, Cox did not
completely fail to make specific allegations regarding what an
investigation would have uncovered.
However, we agree with the district court’s findings that
Cox’s motion did not adequately allege “how such evidence
would have changed the outcome of the trial” and that he
alleged only “generic statements as to prejudice.” Separately,
we further determine that the record refutes those generic
claims of prejudice.
With regard to the defense involving Dennis, Cox gener-
ally alleged that investigation would have provided evidence
that Cox left his cell phone in Dennis’ Impala after the two
parted ways prior to the shooting and that the Impala was
at the home of Dennis’ mother at the time of the shooting.
Cox’s allegations of how such alleged evidence would have
changed the outcome of the trial are not entirely clear and
are somewhat contradictory. There was evidence at trial that
placed Cox’s cell phone at the scene and at the time of the
shooting. Cox’s suggested testimony by Dennis that Cox left
his cell phone in Dennis’ Impala would seem to explain why
the cell phone was at the scene but Cox himself was not.
However, contrariwise, Cox also alleged that Dennis and
his mother would testify that the Impala and Dennis were at
his mother’s house at the time of the shooting. Cox appears
to allege that if called as a fact witness, Dennis would have
inculpated himself by placing himself, his Impala, and Cox’s
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Cite as 314 Neb. 104cell phone, but not Cox himself, at the shooting; but Cox also
alleges that Dennis and his mother would have testified he
and the Impala were not at the scene at the time of the shoot-
ing but instead were at his mother’s house, perhaps casting
doubt on whether the Impala at the shooting was the same one
Cox and Dennis used earlier that day.
The value of the suggested testimony is further clouded by
the fact that evidence showed not only that Cox’s cell phone
was at the scene of the shooting but also that calls had been
placed between Cox’s cell phone and Rogers’ cell phone
shortly prior to the time of the shooting, supporting the State’s
theory that Cox and Rogers were to meet for a drug deal.
There was also evidence that Cox had admitted to police that
he had been making calls to Rogers. In light of this and other
evidence against Cox, the effect of the suggested testimony by
Dennis and his mother is unclear, and Cox does not allege facts
to establish a reasonable probability of a different outcome at
the trial.
With regard to the defense involving McNeal to the effect
that Rogers had no cash for Cox to rob, we note that although
McNeal did not testify at trial, the record indicates that some
evidence was presented in Cox’s defense at trial to support
his defense that Rogers paid money to McNeal prior to the
shooting. Such evidence included testimony by law enforce-
ment investigators who found evidence placing Rogers near
McNeal’s residence shortly before the shooting and showing
that money was deposited into McNeal’s wife’s bank account
in the days after the shooting. The record also shows that dur-
ing closing arguments, defense counsel specifically discussed
McNeal and the evidence that arguably indicated that Rogers
had paid the cash to McNeal prior to the shooting. Contrary
to Cox’s assertions, the record refutes any claim that defense
counsel completely failed to investigate or present the defense
that Rogers gave McNeal the cash he had collected earlier
in the day. The record also shows that the State addressed
the issue in its closing arguments and provided the jury
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Cite as 314 Neb. 104with a basis to find that even if Rogers had paid the cash to
McNeal, Rogers had been robbed of the marijuana that he had
brought to sell to Cox, because neither the marijuana nor the
cash Cox should have paid to Rogers was found on Rogers
after the shooting.
In order to show prejudice related to a claim of ineffec-
tive assistance of counsel, a defendant must demonstrate a
reasonable probability that but for counsel’s deficient perform­
ance, the result of the proceeding would have been different.
See State v Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022).
We determine that Cox’s allegations with regard to both the
defense involving Dennis and the defense involving McNeal
do not demonstrate a reasonable probability that the result of
the trial would have been different. We therefore determine
that Cox failed to adequately allege prejudice with regard to
these claims.
We conclude that Cox’s claims of ineffective assistance of
trial counsel for failing to investigate witnesses and defenses
did not warrant an evidentiary hearing.
(c) Failure to Object to Jury Instructions
Nos. 8 and 10 and Supplemental
Instruction No. 2
Cox also claimed ineffective assistance of trial counsel for
failing to challenge three jury instructions. The three instruc-
tions identified by Cox in his postconviction motion were
instructions Nos. 8 and 10 and supplemental instruction No.
2. Cox had been charged in the information with first degree
murder under both premeditated murder and felony murder
theories. At trial, the jury was instructed on only the felony
murder theory. In instruction No. 5, the court instructed
on the elements of felony murder and specified robbery or
attempted robbery as the underlying felony. Instruction No.
5 stated in part that among the elements of felony murder
that the State must prove were that Cox “intended to com-
mit the crime of robbery,” that Cox “was in the course of
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Cite as 314 Neb. 104committing or attempting to commit that robbery,” and that
Cox, “either alone or by aiding and abetting another, killed
. . . Rogers, during the course of committing or attempting to
commit that robbery.”
In instruction No. 8, the court instructed as follows:
The Defendant can be guilty of a robbery or attempted
robbery even though he personally did not commit every
act involved in the crime so long as he aided someone
else to commit it. The Defendant aided someone else if:
1. The Defendant intentionally encouraged or inten-
tionally helped another person to commit the robbery or
attempted or robbery; and
2. The Defendant intended that the robbery be commit-
ted; or the Defendant knew that the other person intended
to commit the robbery; and
3. The robbery or attempted robbery in fact was com-
mitted by that other person.
The Defendant can be guilty of Felony Murder if he is
guilty of robbery as an aider and a death resulted during
the course of committing the robbery.
Evidence of the Defendant’s mere presence, acquies-
cence, or silence is not enough to sustain the State’s bur-
den of proving guilt under an aiding and abetting theory.
In instruction No. 10, the court instructed as follows: “Intent
is an element of the crimes charged against the Defendant. In
deciding whether the Defendant acted with intent you should
consider his words and acts and all the surrounding circum-
stances.” When the jury was deliberating, the jury sent a ques-
tion to the court asking, “How do we find if we believe he
or someone with him caused the death, but not in commis-
sion of robbery?” The court responded to the question with
supplemental instruction No. 2 in which the court instructed,
“Please use the Court’s instruction upon which you must base
your verdict.”
Cox generally alleged in his postconviction motion that
instructions Nos. 8 and 10 were incorrect statements of law
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Cite as 314 Neb. 104and that supplemental instruction No. 2 merely directed the
jury back to the allegedly erroneous instructions. With regard
to instruction No. 8, Cox alleged that his trial counsel submit-
ted a proposed instruction regarding aiding and abetting but
failed to ensure that the instruction given by the court correctly
stated the law. Cox alleged that his counsel’s proposed instruc-
tion was similar to instruction No. 8 given by the court, but,
Cox alleged, the court gave an instruction that substituted the
word “crimes” for robbery.
Cox further alleged that throughout the trial, the State had
“argued” a premeditated murder theory of first degree murder,
but that “at closing,” the State changed to a theory of felony
murder. Cox alleged that his counsel had a duty to be sure the
jury understood the difference between premeditated murder
and felony murder and the requisite intent under each theory.
Cox alleged that the State “changing their theory at the end of
trial confused the jury,” and he alleged that the jury’s question
that led to supplemental instruction No. 2 was evidence that
the jury was confused. Cox alleged that counsel’s failure to
object to instructions Nos. 8 and 10 and supplemental instruc-
tion No. 2 caused the jury to be “given incorrect statements
of law” and that there was “a reasonable [pr]obabil[i]ty the
outcome of trial may have been different.”
With regard to Cox’s claim that trial counsel failed to
challenge jury instructions, the postconviction district court
determined that the jury instructions, read together and taken
as a whole, correctly stated the law and were not mislead-
ing. The court found that “a challenge to the jury instructions
would have been unsuccessful,” and it therefore found that
Cox’s counsel was not ineffective for failing to challenge
the instructions.
[14] Although Cox alleged specific instructions to which
counsel should have objected, we agree with the district
court’s determination that the jury instructions read together
and as a whole with other instructions correctly stated the
law and were not misleading and that therefore, Cox failed
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Cite as 314 Neb. 104to adequately allege prejudice from counsel’s failure to object
to the instruction. Defense counsel is not ineffective for fail-
ing to object to jury instructions that, when read together and
taken as a whole, correctly state the law and are not mislead-
ing. State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).
Cox alleged that instruction No. 8 differed from his proposed
instruction because it referred generally to “crimes” rather
than specifically to “robbery.” As set forth above, instruction
No. 8 referred to “robbery or attempted robbery” rather than
“crimes.” Cox’s proposed instruction was similar to instruc-
tion No. 8 but it referred only to “robbery.” Instruction No. 8
appears to differ from Cox’s proposed instruction only in that
it refers to both “robbery” and “attempted robbery.” We note
that instruction No. 10, regarding intent, refers to the “crimes”
charged and the intent element of those “crimes.” However,
the reference to “crimes” was necessary in instruction No. 10
that referred to the respective intent required for each crime
charged against Cox, including the first degree murder charge,
as well as the weapon possession and use charges. Therefore, it
would not have been proper in instruction No. 10 to refer only
to “robbery” rather than to “crimes.”
Cox also asserts that the jury instructions were erroneous or
misleading because throughout the trial the State appeared to
be pursuing a charge of first degree murder under a premedi-
tated murder theory rather than a felony murder theory. Cox
was charged in the information under both theories of first
degree murder. However, the jury instructions given at the end
of the trial instructed only on felony murder. The other jury
instructions, including the specific instructions to which Cox
asserts his counsel should have objected, were consistent with
that theory, and as we determined above, the instructions read
together and as a whole did not misstate the law and were
not misleading.
We conclude that Cox’s claim of ineffective assistance of
trial counsel for failing to object to jury instructions did not
warrant an evidentiary hearing.
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Cite as 314 Neb. 104(d) Failure to Raise Sufficiency of
Evidence on Direct Appeal
Cox claimed that counsel provided ineffective assistance on
direct appeal because counsel failed to assign error and argue
that there was not sufficient evidence to support his convic-
tions. Cox alleged in his postconviction motion that he had
urged his counsel that sufficiency of the evidence was “his
most important argument” on appeal and that counsel told Cox
that counsel would “be sure that all his arguments get in,”
but that counsel failed to assign sufficiency of the evidence on
direct appeal. Cox alleged that “[h]ad appellate counsel argued
and assign[ed] as error the sufficiency of the evidence there
exist[s] a reasonable probability the outcome of the [direct]
appeal may have been differ[e]nt.”
Cox further alleged that the State’s theory at trial was that
Cox had arranged to buy marijuana from Rogers but that
“instead of paying him [Cox] robbed and killed him.” He
stated that felony murder could only be found “if the jury
finds evidence of a robbery” and intent by Cox to commit a
robbery. Cox alleged that “no direct evidence connects [Cox]
to this case” and that the State misled the jury by arguing that
he “robbed the victim of $1100 dollars.” Cox alleged that the
State knew that this argument was “misplaced because they
had text messages between [Rogers] and . . . McNeal” in which
Rogers told McNeal he would “come to McNeal’s house and
pay him” what was owed.
Cox then alleged various alternate theories under which
McNeal might have killed Rogers or that another suspect may
have taken cash from Rogers’ person after he had been shot.
Cox further alleged that “[n]o evidence supports [Rogers]
having a pound of weed, or him giving it to anybody.” Cox
also alleged that evidence regarding the Impala “was used as
a decoy by the [S]tate to steer the jury away from the evi-
dence of no robbery,” that such evidence “as it relates to Cox
was irrelevant” and “misleading,” and that the State “never
proved it was actually . . . Dennis’ car that was involved in
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Cite as 314 Neb. 104the crime,” but “[o]nly one similar to it.” Cox further alleged
that there was evidence that undermined the State’s theory that
Cox had robbed Rogers.
Regarding Cox’s claim that counsel failed to assign error
and argue sufficiency of the evidence on direct appeal, the
district court found that Cox “fails to set forth any authority or
argument to establish that any of the issues in his motion could
have changed the outcome of the appeal.” The court concluded
that Cox’s allegations were “insufficient to warrant an eviden-
tiary hearing.”
[15] To show prejudice with regard to his claim of inef-
fective assistance of appellate court, Cox needed to allege
facts that would show that but for counsel’s failure to raise
the claim, there is a reasonable probability that the outcome
of the appeal would have been different. See State v. Cullen,
311 Neb. 383, 972 N.W.2d 391 (2022). Cox alleged counsel
was deficient for failing to raise sufficiency of the evidence on
appeal. 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. Matteson, 313 Neb. 435,
985 N.W.2d 1 (2023).
Cox has not alleged facts that would show a reasonable
probability that an appellate court applying this deferential
standard of review would not have found that there was suf-
ficient evidence to support Cox’s convictions. The evidence
at trial, as set forth above and in our opinion on direct appeal,
when viewed in the light most favorable to the prosecution,
was sufficient for a rational trier of fact to find the essential
elements of the crimes charged. Cox asserts that there was
no direct evidence to show that Cox or a companion shot or
robbed Rogers. However, there was sufficient circumstantial
evidence that tied Cox to being at the scene of the shoot-
ing and that tied him to the vehicle from which the gunshot
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Cite as 314 Neb. 104was fired. There was also sufficient evidence to show that Cox
and Rogers had arranged for Rogers to sell marijuana to Cox,
and there was sufficient evidence from which the jury could
infer that the shooting of Rogers occurred while Cox alone, or
with another, was committing a robbery or attempted robbery
of Rogers during the arranged transaction.
[16] Cox generally argues that the evidence against him
was not credible or that his theories of defense disproved the
charges against him. However, in reviewing a criminal con-
viction, an appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the
evidence; such matters are for the finder of fact, and a con-
viction will be affirmed, in the absence of prejudicial error,
if the evidence admitted at trial, viewed and construed most
favorably to the State, is sufficient to support the conviction.
State v. Cerros, 312 Neb. 230, 978 N.W.2d 162 (2022). As
we determined above, there was sufficient evidence at trial,
both direct and circumstantial, that the jury could have found
to support Cox’s convictions. Under the applicable standards
of review, Cox’s allegations regarding the credibility of such
evidence or of conflicting evidence to support his defense
would not have created a reasonable probability that the
appellate court would have found there was not sufficient evi-
dence or that the outcome of Cox’s appeal would have been
different if counsel had raised sufficiency of the evidence on
direct appeal.
We conclude that Cox’s claim of ineffective assistance of
appellate counsel for failing to assign and argue sufficiency
of the evidence on direct appeal did not warrant an eviden-
tiary hearing.
(e) Claim of Actual Innocence
[17] Cox finally argues that the district court should have
granted an evidentiary hearing because he made a claim of
actual innocence. He cites State v. Newman, 300 Neb. 770,
916 N.W.2d 393 (2018), for the proposition that a claim of
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Cite as 314 Neb. 104actual innocence may be a sufficient allegation of a constitu-
tional violation under the Nebraska Postconviction Act, and
he argues that an evidentiary hearing was necessary “for full
development of the record to determine whether Cox is actu-
ally innocent of all the offenses he was convicted of after
trial,” brief for appellant at 27.
[18,19] While we have recognized that a claim of actual
innocence may support postconviction relief, we have fur-
ther stated:
“The essence of a claim of actual innocence is that the
State’s continued incarceration of such a petitioner with-
out an opportunity to present newly discovered evidence
is a denial of procedural or substantive due process. The
threshold to entitle a prisoner to an evidentiary hearing on
such a postconviction claim is ‘“extraordinarily high.”’
Such a petitioner must make a strong demonstration of
actual innocence because after a fair trial and conviction,
the presumption of innocence vanishes.”
State v. Newman, 300 Neb. at 793, 916 N.W.2d at 413 (quoting
State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016)).
The allegations of actual innocence in Cox’s motion for
postconviction relief do not meet the extraordinarily high
standard to warrant an evidentiary hearing. While setting forth
his claim that counsel was ineffective for failing to raise suf-
ficiency of the evidence on direct appeal, Cox stated that he
“swears he is innocent” of the crimes for which he was con-
victed. Cox also filed an affidavit in which he stated that he
was innocent of the crimes. Cox does not appear to have made
any specific allegation of fact to support a claim of actual
innocence; instead, he appears to rely on the allegations he
made in support of his claims of ineffective assistance of coun-
sel at trial and on direct appeal.
We reject Cox’s argument that an evidentiary hearing
was warranted by his claim of actual innocence. Having
also determined that Cox’s claims of ineffective assistance
of counsel at trial and on direct appeal did not warrant an
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Cite as 314 Neb. 104evidentiary hearing, we conclude that the district court did not
err when it denied Cox’s motion for postconviction relief with-
out an evidentiary hearing.
3. District Court Did Not Abuse Its Discretion
When It Overruled Cox’s Motion to
Appoint Postconviction Counsel
Cox finally claims that the district court erred when it
overruled his motion for appointment of counsel. Under the
Nebraska Postconviction Act, it is within the discretion of
the trial court to decide whether counsel shall be appointed
to represent the defendant. State v. Oliveira-Coutinho, 304
Neb. 147, 933 N.W.2d 825 (2019). Where the alleged errors
in the postconviction petition before the district court are
either procedurally barred or without merit, thus establishing
that the postconviction proceeding contained no justiciable
issue of law or fact, it is not an abuse of discretion to fail to
appoint postconviction counsel for an indigent defendant. Id.We therefore conclude the district court did not abuse its dis-
cretion when it overruled Cox’s motion to appoint postconvic-
tion counsel.
VI. CONCLUSION
Having determined that each of Cox’s claims did not war-
rant an evidentiary hearing, we conclude that the district court
did not err when it denied Cox’s motion for postconviction
relief without an evidentiary hearing. We further conclude that
the district court did not abuse its discretion when it overruled
Cox’s motion to add exhibits to the record or when it over-
ruled his motion to appoint counsel. We therefore affirm the
district court’s order.
Affirmed.