State v. Bedford

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/27/2022 01:05 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. BEDFORD
Cite as 31 Neb. App. 339State of Nebraska, appellee, v.
Keith Bedford, appellant.
___ N.W.2d ___
Filed September 20, 2022. No. A-21-596.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules and judicial discretion is involved only when the rules
make discretion a factor in determining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
3. Jury Instructions: Proof: Appeal and Error. In order to establish
reversible error from a court’s refusal to give a requested instruction, an
appellant has the burden to show that (1) the tendered instruction is a
correct statement of law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
4. Judgments: Appeal and Error. Regarding matters of law, an appellate
court has an obligation to reach a conclusion independent of that of the
trial court in a judgment under review.
5. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh evidence, as such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
6. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal
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Cite as 31 Neb. App. 339is a question of law. In reviewing claims of ineffective assistance of
counsel on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to conclu-
sively determine whether counsel did or did not provide effective assist­
ance and whether the defendant was or was not prejudiced by counsel’s
alleged deficient performance.
7. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued to be considered by an appellate court.
8. Courts: Records: Claims. It is not the duty of a court to scour the
record in search of facts that might support a claim.
9. Self-Defense. Self-defense is a statutorily affirmative defense in
Nebraska.
10. Self-Defense: Jury Instructions: Evidence. In the context of a self-
defense instruction, a trial court must instruct the jury on the issue of
self-defense when there is any evidence adduced which raises a legally
cognizable claim of self-defense.
11. Self-Defense: Claims. To successfully assert the claim of self-defense,
one must have a both reasonable and good faith belief in the necessity
of using force.
12. Self-Defense. The force used in defense must be justified under the
circumstances.
13. Jury Instructions: Evidence. A trial court is not required to give
an instruction where there is insufficient evidence to prove the facts
claimed; however, it is not the province of the trial court to decide fac-
tual issues even when it considers the evidence produced in support of
one party’s claim to be weak or doubtful.
14. Self-Defense: Jury Instructions: Evidence. It is only when the evi-
dence does not support a legally cognizable claim of self-defense, or
the evidence is so lacking in probative value as to constitute a failure
of proof, that a trial court may properly refuse to instruct a jury on a
defendant’s theory of self-defense.
15. ____: ____: ____. That a slight amount of evidence may ultimately
be insufficient for the defendant to prevail on his or her claim of self-
defense does not bear on whether a self-defense instruction should have
been given by the trial court.
16. Self-Defense: Jury Instructions: Juries: Evidence. Only where the
jury could reasonably find that the defendant’s use of force was justi-
fied should the trial court instruct the jury on self-defense; however, it
is not enough to merely show any evidence of self-defense to support an
instruction thereon.
17. Jury Instructions: Appeal and Error. Jury instructions are subject
to the harmless error rule, and an erroneous jury instruction requires
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STATE V. BEDFORD
Cite as 31 Neb. App. 339reversal only if the error adversely affects the substantial rights of the
complaining party.
18. Verdicts: Appeal and Error. Harmless error review looks to the basis
on which the trier of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty verdict surely
would have been rendered, but, rather, whether the actual guilty verdict
rendered in the questioned trial was surely unattributable to the error.
19. Jury Instructions: Appeal and Error. It is the duty of the trial judge to
instruct the jury on the pertinent law of the case, whether requested to
do so or not, and an instruction or instructions which by the omission of
certain elements have the effect of withdrawing from the jury an essen-
tial issue or element in the case are prejudicially erroneous.
20. Criminal Law: Evidence: New Trial: Appeal and Error. Upon find-
ing reversible error in a criminal trial, an appellate court must determine
whether the total evidence admitted by the district court, erroneously or
not, was sufficient to sustain a guilty verdict.
21. Evidence: New Trial: Double Jeopardy: Appeal and Error. If evi-
dence is not sufficient to sustain a verdict after an appellate court finds
reversible error, then double jeopardy forbids a remand for a new trial.
22. Criminal Law: Judgments: Convictions: Appeal and Error. An
appellate court may reverse a criminal judgment in part and affirm the
judgment in part where the reversed conviction is separate and distinct
from the remaining convictions.
23. Witnesses. A defendant’s reasons for attempting to induce a witness to
commit any of the acts enumerated in Neb. Rev. Stat. § 28-919(1) (Cum.
Supp. 2020) are not relevant.
24. Effectiveness of Counsel: Records: Appeal and Error. When a defend­
ant’s trial counsel is different from his or her counsel on direct appeal,
the defendant must raise on direct appeal any issue of trial counsel’s
ineffective performance which is known to the defendant or is apparent
from the record.
25. ____: ____: ____. Appellate courts have generally reached ineffective
assistance of counsel claims on direct appeal only in those instances
where it was clear from the record that such claims were without merit,
or in the rare case where trial counsel’s error was so egregious and
resulted in such a high level of prejudice that no tactic or strategy could
overcome the effect of the error, which effect was a fundamentally
unfair trial.
26. ____: ____: ____. An ineffective assistance of counsel claim made on
direct appeal can be found to be without merit if the record establishes
that trial counsel’s performance was not deficient or that the appellant
could not establish prejudice.
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STATE V. BEDFORD
Cite as 31 Neb. App. 33927. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must
show that his or her counsel’s performance was deficient and that this
deficient performance actually prejudiced the defendant’s defense.
28. ____: ____. To show that counsel’s performance was deficient, a defend­
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
29. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice, the defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
30. Effectiveness of Counsel: Speedy Trial. When a defendant alleges he
or she was prejudiced by trial counsel’s failure to properly assert the
defendant’s speedy trial rights, the court must consider the merits of the
defendant’s speedy trial rights under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Only if a motion would
have resulted in the defendant’s absolute discharge, thus barring a later
trial and conviction, could the failure to move for discharge be deemed
ineffective assistance.
31. Constitutional Law: Speedy Trial. Determining whether a defendant’s
constitutional right to a speedy trial has been violated requires a balanc-
ing test in which the courts must approach each case on an ad hoc basis.
That test involves consideration of four factors: (1) the length of delay,
(2) the reason for the delay, (3) the defendant’s assertion of the right,
and (4) prejudice to the defendant.
32. ____: ____. In analyzing the prejudice factor of the four-factor test
to determine whether constitutional speedy trial rights have been vio-
lated, the U.S. Supreme Court enumerated three aspects: (1) preventing
oppressive pretrial incarceration, (2) minimizing anxiety and concern of
the defendant, and (3) limiting the possibility that the defense will be
impaired by dimming memories and loss of exculpatory evidence.
33. Effectiveness of Counsel: Proof: Appeal and Error. When making an
ineffective assistance of counsel claim on direct appeal, allegations of
prejudice are not required. However, a defendant must make specific
allegations of the conduct that he or she claims constitutes deficient
performance.
34. Effectiveness of Counsel: Appeal and Error. General allegations that
trial counsel performed deficiently or that trial counsel was ineffective
are insufficient to raise an ineffective assistance claim on direct appeal
and thereby preserve the issue for later review.
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Cite as 31 Neb. App. 33935. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error.
When reviewing claims of alleged ineffective assistance of counsel, an
appellate court affords trial counsel due deference to formulate trial
strategy and tactics.
36. Effectiveness of Counsel: Presumptions: Appeal and Error. There
is a strong presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions.
37. Judgments: Effectiveness of Counsel: Appeal and Error. Even if
found unreasonable, error owing to ineffective assistance of counsel
justifies setting aside the judgment only if there was prejudice.
38. Trial: Joinder: Appeal and Error. Whether offenses were properly
joined involves a two-stage analysis: (1) whether the offenses were suf-
ficiently related to be joinable and (2) whether the joinder was prejudi-
cial to the defendant.
39. Trial: Joinder: Presumptions. There is a strong presumption against
severing properly joined counts.
40. Trial: Joinder: Juries: Evidence. Joined charges do not usually result
in prejudice if the evidence is sufficiently simple and distinct for the
jury to easily separate evidence of the charges during deliberations.
41. Trial: Joinder. Prejudice from joinder cannot be shown if evidence
of one charge would have been admissible in a separate trial of
another charge.
Appeal from the District Court for Lancaster County:
Robert R. Otte, Judge. Affirmed in part, and in part reversed
and remanded for a new trial.
Joseph D. Nigro, Lancaster County Public Defender, and
John C. Jorgensen for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Pirtle, Chief Judge, and Bishop and Welch, Judges.
Per Curiam.
I. INTRODUCTION
Following a jury trial in the Lancaster County District
Court, Keith Bedford was convicted of one count of assault
by strangulation, two counts of third degree domestic assault,
and one count of tampering with a witness. He was found
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STATE V. BEDFORD
Cite as 31 Neb. App. 339not guilty of a third count of third degree domestic assault.
On appeal, Bedford claims that the district court erred in
preventing the impeachment of the victim’s testimony and
in failing to give his requested self-defense jury instruction.
He also asserts that the evidence was insufficient to sustain
his convictions and that he received ineffective assistance of
trial counsel for multiple reasons. Because we find error in
the court’s refusal to instruct on self-defense as to one count
of third degree domestic assault, we affirm in part and in
part reverse the court’s judgment and remand the cause for a
new trial.
II. BACKGROUND
Bedford and Jessica Bedford (Jessica) met in June 2017
through a mutual friend and began a romantic relationship
approximately 1 month later. They moved in together shortly
thereafter, separated for various periods, and were married in
December 2019. Beginning in July 2019 and continuing through
April 2020, several incidents occurred involving Bedford and
Jessica, including physical altercations, which resulted in the
filing of criminal charges against Bedford.
Bedford was arrested on May 1, 2020, and the State filed an
information on August 13 charging Bedford with five counts:
count 1, assault by strangulation or suffocation, a Class IIIA
felony, in violation of Neb. Rev. Stat. § 28-310.01(1) (Cum.
Supp. 2020); counts 2 through 4, third degree domestic assault
with a prior conviction, each a Class IIIA felony, in violation
of Neb. Rev. Stat. § 28-323(1) (Reissue 2016); and count 5,
tampering with a witness, a Class IV felony, in violation of
Neb. Rev. Stat. § 28-919(1) (Cum. Supp. 2020). Counts 1 and 2
related to an incident occurring in April 2020, count 3 stemmed
from an October 2019 incident, and count 4 arose from a July
2019 incident. Count 5 related to a phone call between Bedford
and Jessica on October 7, 2019, while Bedford was incar-
cerated. The State filed an amended information on June 2,
2021, alleging the same five counts and charging Bedford as a
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STATE V. BEDFORD
Cite as 31 Neb. App. 339habitual criminal in connection with count 5, pursuant to Neb.
Rev. Stat. § 29-2221 (Reissue 2016).
Trial commenced on June 7, 2021, and closing arguments
were made on June 10. Evidence was adduced, including the
testimonies of Jessica, her son, her grandmother, Bedford’s
girlfriend and members of her family, a registered nurse, and
several law enforcement officers. Bedford also testified in his
own behalf. We begin by setting forth the conflicting narratives
regarding each incident underlying the multiple counts charged
against Bedford.
1. July 2019 Incident
According to Jessica, she and Bedford began to argue on
July 19, 2019, over “[m]oney” and “other women,” an argu-
ment initially sparked over the fact that Bedford had driven a
vehicle belonging to a female acquaintance to Jessica’s resi-
dence. The argument began via text messages and continued
into a verbal dispute outside of Jessica’s garage. The argument
“escalated” into “yelling,” and Bedford “pushed” Jessica into
her garage door and struck her “with a closed fist” on the “left
side of [her] face.” Jessica recalled that after being struck,
she “felt like [she] couldn’t close [her] mouth.” Bedford then
“[g]rabbed at” Jessica in an effort to “get to [her back] pocket.”
Jessica then disentangled herself from Bedford and “went
around to the side of the house[,] grabbed a rock[,] and tried to
throw it at him.” The rock missed Bedford and instead struck
the windshield of the vehicle belonging to Bedford’s female
acquaintance. As Bedford began to leave, Jessica followed
after the vehicle into the road while “still yelling at him.” She
then “slipped on some gravel at the end of the driveway” and
fell, injuring her hand in the process.
Although Jessica did not call law enforcement to report this
incident, an officer came to her home later that evening fol-
lowing a vandalism report made by Bedford’s female acquain-
tance. During the investigative interview, the officer took
photographs of Jessica’s injuries and Jessica reported what had
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STATE V. BEDFORD
Cite as 31 Neb. App. 339occurred between herself and Bedford. Law enforcement made
efforts to contact Bedford without success.
Conversely, Bedford described that he had driven to
Jessica’s home to “pick up some cash that she told [him] she
would give” to him. According to Bedford, after he arrived at
Jessica’s residence, “[s]he came outside and . . . struck [him],”
saying that she could not “believe [he] drove this bitch’s car
to [Jessica’s] grandma’s house.” Afterward, Jessica “came to
the driver’s side of the [windshield and] threw a rock into
the wind[shield].” She then picked up the rock and “threw it
into the wind[shield] again.” Bedford returned to the vehicle
and began to drive away; he had to “look out the passenger’s
side of the wind[shield]” because it “was so damaged.” He
“didn’t pay attention” to Jessica’s conduct as he left, and he
drove straight to his female acquaintance’s home to explain the
damage. At this time, Bedford had a warrant out for his arrest
unrelated to the incident, and he did not have any contact with
law enforcement following this incident. During the period
immediately following the July 2019 incident, Bedford cut off
communications with Jessica; thereafter, he left Nebraska for
work-related purposes.
2. October 2019 Incident
Following Bedford’s return to Nebraska in August 2019,
he “opened back up to” Jessica and resumed talking with her.
He moved back in with her in September, and the two lived
together in an apartment for a time.
On October 5, 2019, the two had an argument initially
concerning the discipline of Jessica’s children. The argument
quickly escalated as Bedford and Jessica moved to their bed-
room in the apartment. One of Jessica’s children remained in
the apartment’s living room.
According to Jessica, the argument escalated to the point
that Bedford was packing up his possessions and preparing
to leave. During the course of the argument, Bedford picked
up a pair of boots and began making gestures with his arms
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Cite as 31 Neb. App. 339while holding the boots. One of the boots hit Jessica in the
“corner of [her] eye” and caused it to bruise and swell. She
denied that Bedford ever pushed her during this incident, and
she did not call law enforcement. However, her child had
left the apartment and gone to a nearby police station. Law
enforcement arrived shortly thereafter and knocked on the
apartment door. Jessica was initially uncooperative with the
officers in an effort to protect Bedford, and she believed that
her injury was an “accident” that Bedford did not intend to
cause. Bedford eventually came outside of the apartment and
was taken into custody. Law enforcement subsequently inter-
viewed Jessica, and she told the officers that she had “pushed
. . . Bedford and . . . he pushed [her] back,” causing Jessica to
fall and be injured.
Jessica’s son, age 10, testified about an argument Bedford
and Jessica had about his having a piece of cake “too early.”
Bedford and Jessica went into their bedroom, where Jessica’s
son, in the dining room, “heard them fighting.” He heard
Jessica crying, and then he heard “a big boom by the wall.”
He started crying and “ran to some people” and then to a store,
from which someone “walked [him] to the police station.”
Jessica’s son testified that he went to the police station because
he “knew somebody was hurt because [his] mom was crying”
and that “when [he] got back, [Jessica] had a black eye and a
busted lip,” neither of which she had prior to going into the
bedroom with Bedford.
Bedford described that as he and Jessica argued, he told her
that he was “tired of arguing with her and . . . was leaving.”
He began packing his possessions, and Jessica “pushed [him]
into the [bedroom] door” to “stop [him] from leaving.” As this
occurred, she asked Bedford “to stop” and not leave and also
said to Bedford that he “wasn’t going anywhere.” He tried to
continue packing, but Jessica “pushed [him] and pinned [him]
against” the bedroom door and shoes that were on a shelf fell
to the floor. Bedford said that at this point, he “didn’t shove”
Jessica, but, rather, he “pushed [her] off of [him] and she
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Cite as 31 Neb. App. 339tripped over one of [his] shoes” and hit her face on the nearby
plastic “bed base.” Bedford testified, “I helped her up. I felt
that was my fault. Even so, I didn’t mean to hurt her.” After
the police officers knocked on the apartment door, Jessica
went out and spoke to them while Bedford remained in the
apartment. Jessica texted Bedford regarding her conversation
with the officers, and Bedford briefly considered “attempt[ing]
to elude the police” because he had warrants for unpaid fines.
However, after looking out the bathroom window and realizing
how far the fall was, he did not think that the fines were worth
“losing [his] life” or “break[ing his] neck” over, so he “even-
tually . . . did come out.” While being arrested, Bedford told
Jessica he loved her and he “believe[d] that [he] even apolo-
gized to her again.”
On cross-examination, Bedford acknowledged that he was
“evasive” and initially “lied to law enforcement” after the
October 2019 incident. He acknowledged telling law enforce-
ment that Jessica had no injuries and had no reason to have
any injuries.
3. Jail Phone Call and
Other Events
Following his arrest, Bedford was jailed from October 5,
2019, until December 3. Throughout this period, Bedford and
Jessica were in frequent communication through letters and
phone calls. Bedford testified he made “over 200 calls” to
Jessica during that time. The phone call at issue in this appeal
occurred on October 7 between Bedford and Jessica. According
to Bedford, he was prohibited from calling Jessica at the time
as a result of the incident on October 5, in light of which pro-
hibition Jessica instructed him to call her grandmother’s home
phone number in order to circumvent the restriction. Bedford
told Jessica “not [to] come to court” if the State subpoenaed
her; Jessica responded by indicating that if she were subpoe-
naed, she would testify that no domestic assault had occurred
and would not otherwise cooperate with the prosecution.
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STATE V. BEDFORD
Cite as 31 Neb. App. 339Jessica further referenced a letter she had sent to the county
attorney’s office in which she described that her reports to law
enforcement were not legitimate, and she stated that she would
“take a false reporting charge” if needed. At the conclusion of
the phone call, Bedford told Jessica that he “need[ed her] to
stay focused” and to “[m]ake sure [she] stays on this shit” with
respect to the court proceedings.
The letter referenced by Jessica, received as exhibit 7 at trial,
described that the reports she had made to police were a result
of her anger toward Bedford. According to the letter, Bedford
had not assaulted her during the incidents on July 19 and
October 5, 2019. Jessica wrote that she “would like to accept
responsibility” for the July 19 incident and that she had falsely
reported to the responding officer out of anger that Bedford
had assaulted her. With respect to the October 5 incident, the
letter described an argument consistent with Bedford’s account.
Jessica further wrote that she had told the responding officers
her injury was an accident resulting from her instigation and
escalation of the argument, but that the officers did not believe
her and told her “they would take [her] kid” away and “take
[her] to jail if [she] didn’t tell them the truth.” Jessica testified
at trial that she had “backdated” this letter to October 4 and
that she actually wrote this letter “sometime after November
12” after a conversation with Bedford. Jessica stated at trial
that the purpose of this letter was so Bedford’s “charges
would be dropped,” and she indicated that its contents were
not accurate.
Following his release on December 3, 2019, Bedford and
Jessica lived together for approximately 2 months. The two
were married later in December, and they remained together
until late January 2020, when Bedford moved out of the resi-
dence. Bedford explained that he left because the relationship
had not improved since the October 2019 incident. In March
2020, Bedford returned to Nebraska and began a relationship
with another woman, and he moved in with her shortly after
his return. Bedford and Jessica continued to communicate
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Cite as 31 Neb. App. 339following his return to Nebraska, although the relationship
became significantly more strained.
4. April 2020 Incident
Regarding the events of April 4, 2020, the accounts of
Bedford and Jessica substantially diverge. On that date, Jessica
was at her grandmother’s house with her eldest son and her
grandmother was also present. According to Jessica, she and
Bedford had arranged for a meeting at her grandmother’s
home in order for Jessica to give Bedford $60 and to return
his car’s key fob. When Bedford arrived, Jessica met him on
the front porch of her grandmother’s home. Bedford appeared
“upset,” and he “pulled [her] into the garage” attached to the
residence. The two began to argue, and the argument became
physical. Jessica recalled that Bedford began to “choke[]” her
as he was talking to her, and “he told [her] that he would leave
[her] rotting in the garage.” She then described that she fell
to the ground and Bedford began striking her. Bedford then
left the residence, and Jessica went into the house “crying and
screaming” and told her grandmother to call the police. The
record indicates that the phone call to the 911 emergency dis-
patch service occurred at 1:22 p.m. and that “[n]o more than
five minutes” had passed between the assault and the 911 call.
Law enforcement arrived shortly thereafter, and officers inter-
viewed Jessica and took photographs of her injuries. Bedford
and Jessica texted each other on a few occasions after this
incident, although Jessica considered their relationship to be
over at the time.
Bedford, however, denied ever meeting with Jessica that
day. Instead, he described that he spent the entire day with
his new girlfriend’s family. Bedford’s girlfriend had purchased
a new video game console for her son the day before, using
her “unemployment card.” On the morning of April 4, 2020,
Bedford cooked breakfast for his girlfriend and her children,
and after finishing breakfast “close to noon,” Bedford played
video games with his girlfriend’s son for “three or four, maybe
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Cite as 31 Neb. App. 339five hours.” During this time, Bedford “never left the house,”
and he described his vehicle was also “blocked in” by his
girlfriend’s vehicle, rendering him unable to leave. Bedford
made a phone call to Jessica around 1 p.m. concerning his
“SNAP card” and the difficulties he was having in acquiring
it. According to Bedford, Jessica denied any involvement, and
he “stopped talking to her” after her denial because he “knew
better.” They exchanged a couple more text messages, in which
Bedford stated that he would “put a security lock” on his
account because Jessica “knew too much of [his] information.”
Afterward, Jessica attempted to call Bedford multiple times,
but he did not answer. Bedford subsequently cooked dinner
for his girlfriend and her children, and he did not otherwise
leave the residence throughout the remainder of the evening
after dinner.
5. Verdicts and Sentencing
We will discuss other evidence received at trial in our analy-
sis below when relevant to the errors assigned by Bedford.
After deliberation, the jury found Bedford guilty of counts
1 through 3 and count 5, as well as not guilty of count 4. The
district court subsequently entered judgment on the jury’s
verdicts.
A sentencing hearing was held on July 16, 2021. The district
court found Bedford to be a habitual criminal and sentenced
Bedford as follows: 10 to 12 years’ imprisonment on count 1,
2 to 3 years’ imprisonment on count 2, 2 to 3 years’ imprison-
ment on count 3, and 10 to 12 years’ imprisonment on count
5. The court ordered that the sentences on counts 1 and 5 be
served concurrently; the court further ordered that the sentences
on counts 2 and 3 be served consecutively to those on counts
1 and 5 and to each other. Bedford was given 486 days’ credit
for time served. A written order consistent with the court’s oral
pronouncement was entered that same day.
Bedford appeals.
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Cite as 31 Neb. App. 339III. ASSIGNMENTS OF ERROR
Bedford claims, reordered, that (1) the district court erred
in denying trial counsel’s attempt to impeach Jessica at trial,
(2) the court erred in refusing his proposed self-defense jury
instruction, and (3) the evidence was insufficient to sustain his
convictions. He further raises five separate claims of ineffec-
tive assistance of trial counsel.
IV. STANDARD OF REVIEW
[1,2] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules and judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility. State v. Figures, 308 Neb. 801, 957 N.W.2d 161(2021). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. State v. Figures, supra.[3,4] In order to establish reversible error from a court’s
refusal to give a requested instruction, an appellant has the
burden to show that (1) the tendered instruction is a correct
statement of law, (2) the tendered instruction is warranted
by the evidence, and (3) the appellant was prejudiced by
the court’s refusal to give the tendered instruction. State v.
Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999). Regarding
matters of law, an appellate court has an obligation to reach
a conclusion independent of that of the trial court in a judg-
ment under review. State v. Kinser, 252 Neb. 600, 567 N.W.2d
287 (1997).
[5] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence,
as such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
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Cite as 31 Neb. App. 339the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Figures, supra.[6] Whether a claim of ineffective assistance of trial coun-
sel may be determined on direct appeal is a question of law.
In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. State v.
Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
V. ANALYSIS
1. Denial of Opportunity
to Impeach Witnesses
Bedford claims that the district court denied him “his con-
stitutional right to confrontation because [it] denied him the
opportunity to properly impeach [Jessica and her son] at trial.”
Brief for appellant at 27. Bedford alleges that he was “funda-
mentally prejudiced” by the “trial court’s rulings,” insofar as
he was “unable to clearly demonstrate to the jury the inconsist­
ent statements [given by Jessica and her son] to further prove
his innocence,” and that had he been given the opportunity to
impeach these witnesses, the jury would have had “a legitimate
reason to question the validity of their testimony.” Id.[7,8] Besides not mentioning Jessica’s son in the section
of his brief assigning errors, Bedford’s alleged error is prob-
lematic in that it does not specifically identify which of the
“trial court’s rulings,” id., were erroneous. The district court
made multiple rulings regarding trial counsel’s impeachment
of Jessica and her son; some objections were sustained, while
others were overruled. Bedford provides no description of
which particular ruling or rulings he claims violated his rights
in this case. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
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Cite as 31 Neb. App. 339error to be considered by an appellate court. State v. Figures,
308 Neb. 801, 957 N.W.2d 161 (2021). It is not the duty of a
court to scour the record in search of facts that might support
a claim. In re App. No. C-4973 of Skrdlant, 305 Neb. 635, 942
N.W.2d 196 (2020). Bedford has not argued this assigned error
with the required specificity, and we therefore do not address
this argument further.
2. Failure to Instruct Jury
on Self-Defense
A formal jury instruction conference took place on the
morning of June 10, 2021, before the jury was seated for clos-
ing arguments. Bedford’s trial counsel requested “the standard
jury instruction on self-defense” as to count 3, third degree
domestic assault, stemming from the October 5, 2019, incident;
no copy of a proposed instruction is contained in our record.
On appeal, Bedford claims the proposed instruction “was a
correct statement of the law,” as it was “drawn directly from
Neb. Rev. Stat. § 28-1409 (2016) and NJI2d Crim. 7.1.” Brief
for appellant at 35. Ordinarily, the failure to include a proposed
instruction would preclude our review, but because our consid-
eration of this issue turns on the evidence rather than the word-
ing of the instruction itself, we proceed to address it. Bedford
claims that the district court erred in overruling his request for
a self-defense jury instruction as to the October 2019 domestic
assault offense.
Pursuant to § 28-323(1), a person commits third degree
domestic assault if he or she “(a) [i]ntentionally and knowingly
causes bodily injury to his or her intimate partner” or “(b)
[t]hreatens an intimate partner with imminent bodily injury.”
Bedford points to his testimony that Jessica had pushed and
pinned him against the bedroom door, preventing him from
leaving the room. Bedford said that in response, he “didn’t
shove” Jessica, but “pushed her off of [him],” and that she
tripped over a shoe and hit her face on the nearby plastic bed
base. Trial counsel asserted that Bedford’s testimony warranted
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Cite as 31 Neb. App. 339a self-defense instruction as to this incident. However, the dis-
trict court agreed with the State’s position at the jury instruc-
tion conference that the facts did not “rise to the level of need-
ing the self-defense instruction.”
On appeal, Bedford argues that his testimony regarding the
October 2019 incident “satisfied the initial burden of a defend­
ant to request a self-defense instruction.” Brief for appellant at
36. He describes that “his initial shove of [Jessica] was neces-
sary to protect himself after she cornered him and pushed him
up against the wall.” Id. Citing to State v. Kinser, 252 Neb.
600, 567 N.W.2d 287 (1997), he asserts that the district court
improperly decided a factual issue for the jury by refusing his
proposed instruction, and he notes that he needed only to pro-
duce “a slight amount of evidence” to warrant a self-defense
instruction. Brief for appellant at 35.
To establish reversible error from a court’s refusal to give
a requested instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of law,
(2) the tendered instruction is warranted by the evidence,
and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction. State v. Kinser, supra. As noted
above, to the extent the “standard jury instruction” requested
by Bedford’s trial counsel would have been NJI2d Crim. 7.1,
Bedford’s proposed instruction would have been a correct
statement of the law. We therefore turn to the second factor
articulated in Kinser, namely whether the tendered instruction
was warranted by the evidence.
[9-12] Self-defense is a statutorily affirmative defense in
Nebraska. State v. France, 279 Neb. 49, 776 N.W.2d 510(2009) (defendant has burden of going forward with evi-
dence of self-defense, after which State has burden to prove
defendant did not act in self-defense). In the context of a
self-defense instruction, a trial court must instruct the jury on
the issue of self-defense when there is any evidence adduced
which raises a legally cognizable claim of self-defense. See id.As set forth in Neb. Rev. Stat. § 28-1409(1) (Reissue 2016),
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Cite as 31 Neb. App. 339the use of force against another person is justifiable “when the
actor believes that such force is immediately necessary for the
purpose of protecting himself [or herself] against the use of
unlawful force by such other person.” To successfully assert
the claim of self-defense, one must have a both reasonable
and good faith belief in the necessity of using force. State v.
Kinser, supra. The force used in defense must also be justified
under the circumstances. See id.[13-15] A trial court is not required to give an instruction
where there is insufficient evidence to prove the facts claimed;
however, it is not the province of the trial court to decide fac-
tual issues even when it considers the evidence produced in
support of one party’s claim to be weak or doubtful. Id. It is
only when the evidence does not support a legally cognizable
claim of self-defense, or the evidence is so lacking in proba-
tive value as to constitute a failure of proof, that a trial court
may properly refuse to instruct a jury on a defendant’s theory
of self-defense. Id. A defendant need only produce a slight
amount of evidence to satisfy this initial burden of raising the
issue of self-defense. Id. That this slight amount of evidence
may ultimately be insufficient for the defendant to prevail on
his or her claim of self-defense does not bear on whether a
self-defense instruction should have been given by the trial
court. See id.[16] However, only where the jury could reasonably find
that the defendant’s use of force was justified should the trial
court instruct the jury on self-defense. State v. Case, 304 Neb.
829, 937 N.W.2d 216 (2020). “It is not enough to merely
show ‘any evidence’ of self-defense to support an instruction
thereon. Instead, the defendant must show ‘any evidence in
support of a legally cognizable theory of self-defense.’” Id.
at 843, 937 N.W.2d at 226 (quoting State v. Kinser, 252 Neb.
600, 567 N.W.2d 287 (1997)). Further, the Nebraska Supreme
Court has interpreted § 28-1409 to mean that “to successfully
assert the claim of self-defense, a defendant must have a rea-
sonable and good faith belief in the necessity of using force
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Cite as 31 Neb. App. 339and the force used in defense must be immediately necessary
and justified under the circumstances.” State v. Case, 304 Neb.
at 843, 937 N.W.2d at 226.
The State contends that the “evidence and testimony make
clear that there was no established reasonable and good faith
belief on the part of Bedford that force was immediately nec-
essary nor justified during the October 5, 2019[,] assault.”
Brief for appellee at 43. The State argues that Bedford “has
not articulated why shoving [Jessica] was ‘necessary to pro-
tect himself’” and that Bedford failed to sufficiently establish
a claim of self-defense, because “he did not testify as to the
immediate threat posed by [Jessica], prior threats followed
with physical harm, weapons held by [Jessica], injuries caused
by [Jessica], or what he believed she intended to do if he did
not make physical contact with her.” Id.
However, we are not persuaded that Bedford failed to allege
sufficient facts to warrant a jury instruction on self-defense.
Bedford’s testimony, as well as exhibit 7, indicated that dur-
ing the incident on October 5, 2019, Jessica pushed Bedford
against the bedroom door and prevented him from leaving
the residence with physical force, and that Bedford thereafter
“pushed [Jessica] off of [him],” causing her to fall and be
injured. There was no evidence adduced that the force used by
Bedford to push Jessica away was disproportionate to the force
initially used by Jessica to “push[]” and “pin[]” Bedford to the
bedroom door. Bedford’s testimony and exhibit 7 also indicate
that Jessica was angry and otherwise emotionally charged dur-
ing this incident and that Bedford was simply attempting to
leave the residence. From this evidence, Bedford has articu-
lated a cognizable claim that he held a reasonable belief that
the force used to push Jessica away was immediately necessary
and justified to allow him to leave the residence.
The State points to evidence conflicting with Bedford’s
account that “strongly suggested that the physicality of the
argument turned assault was more one-sided than Bedford
claims and favored Bedford,” brief for appellee at 44, but this
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Cite as 31 Neb. App. 339argument, as well as those previously described, only empha-
sizes the propriety of a self-defense instruction in this case.
That other evidence may have conflicted with or undermined
Bedford’s account is a question for the jury to resolve, not to
be deprived by the district court’s refusal to grant the proposed
instruction. See State v. Kinser, supra (questions of fact raised
by defendant’s account that defendant acted in self-defense
were for jury to resolve).
Two separate bases in support of the conclusion that the
self-defense instruction was not warranted here are articulated
in the concurrence in part and in part dissent. The first is that
Bedford’s failure to testify that his use of force was neces-
sary to protect himself against a perceived danger to himself
from Jessica resulted in a record which was insufficient to
support a self-defense instruction. The second basis is that the
­self-defense instruction would conflict with Bedford’s theory
of the case, that the injury was unintentional, and should
not be given in such situations. We will address those mat-
ters independently.
There is no dispute that Bedford did not explicitly testify
that his use of force to push Jessica away when she had him
“pinned” was necessary to protect himself against a perceived
danger. But as the Nebraska Supreme Court stated in State v.
Graham, 234 Neb. 275, 279, 450 N.W.2d 673, 676 (1990), the
general rule is:
A defendant is entitled to have the jury instructed on
his or her theory of defense if there is any evidence to
support it. State v. Clayburn, 223 Neb. 333, 389 N.W.2d
314 (1986).
[The defendant] did not testify. The trial court refused
the self-defense instruction because it apparently believed
that a defendant must testify in order to establish his or
her good-faith belief that force was necessary. However,
this is not the rule in this state. As expressed in Clayburn,
it is necessary only that there be any evidence to support
a theory of self-defense.
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Cite as 31 Neb. App. 339This case is certainly different from Graham, in that in
this case, Bedford did testify and could have testified to his
good faith belief that his use of force to push Jessica off him
was necessary to protect himself. But Graham stands for the
proposition that his failure to utter those specific words does
not render his request for the instruction necessarily fatal.
The issue becomes whether the evidence, offered without the
specific expression of the good faith belief, is sufficient for a
jury to reasonably find that the use of force by the defendant
was justified. See State v. Kinser, 252 Neb. 600, 567 N.W.2d
287 (1997) (evidence necessary to raise affirmative defense
may be adduced either by defendant’s witnesses or in State’s
case in chief without necessity of defendant’s presenting evi-
dence). By his testimony, Bedford described that his use of
force against Jessica was a result of her use of force against
him; that is, her physically having him pinned, which resulted
in his use of force to extricate himself. Based on the Nebraska
Supreme Court’s statement that a defendant need only adduce
a slight amount of evidence to satisfy the initial burden of
raising the issue of self-defense, we find this description by
Bedford adequate to overcome that hurdle. As the Nebraska
Supreme Court noted in State v. Kinser, 252 Neb. at 607,
567 N.W.2d at 292, “as a practical matter, a slight amount
of evidence may not be enough to ultimately prevail on the
defense of self-defense. A defendant is not required to plead
and give notice of an affirmative defense of justification or
self-defense.” We believe Bedford’s description of the events
which took place during the October 2019 incident, coupled
with the additional evidence presented at trial, was sufficient
to create a factual question for the jury on whether his use
of force was justified under the elements of the self-defense
instruction. See State v. Warren, 9 Neb. App. 60, 608 N.W.2d
617 (2000) (defendant’s claim of self-defense is question of
fact for jury; jury, not trial court, must resolve multiple factual
questions concerning whether defendant acted in self-defense
within meaning of law).
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Cite as 31 Neb. App. 339Nor are we persuaded by the second argument in the con-
currence in part and in part dissent that Bedford’s statements
that he did not intend to harm Jessica with his push was dis-
positive of the issue. In support of that proposition, we are
directed to State v. Faust, 265 Neb. 845, 660 N.W.2d 844(2003), disapproved on other grounds, State v. McCulloch, 274
Neb. 636, 742 N.W.2d 727 (2007), as well as State v. Brown,
220 Neb. 849, 374 N.W.2d 28 (1985), and State v. Canby, 217
Neb. 461, 348 N.W.2d 900 (1984). In Faust, the Nebraska
Supreme Court held that “when the defendant’s theory of the
case is that he or she did not commit the crime [or that the
force toward the victim was accidental], the court risks con-
fusing or misleading the jury” by tendering the self-defense
instruction. 265 Neb. at 879, 660 N.W.2d at 874. But we find
those cases to be distinguishable. In those cases, the defendant
denied intentionally using force at all in connection with the
charged crime. Here, Bedford’s theory was that he intention-
ally used force to repel Jessica, but that he did not intend to
injure her with the force he used and that the force he used
was in response to the force that Jessica was applying to him.
Under those circumstances, we do not find the self-defense
instruction mutually exclusive of Bedford’s theory that he
intended no injury by his intentional use of force. We find that
the evidence received at trial could have supported Bedford’s
theory of self-defense such that a self-defense instruction was
warranted. In light of this evidence, the district court should
have instructed the jury on self-defense as requested.
[17-19] However, our analysis does not end here. We must
next determine whether Bedford was prejudiced by the court’s
refusal to so instruct the jury. Jury instructions are subject
to the harmless error rule, and an erroneous jury instruction
requires reversal only if the error adversely affects the substan-
tial rights of the complaining party. State v. Dady, 304 Neb.
649, 936 N.W.2d 486 (2019). Harmless error review looks to
the basis on which the trier of fact actually rested its verdict;
the inquiry is not whether in a trial that occurred without the
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Cite as 31 Neb. App. 339error a guilty verdict surely would have been rendered, but,
rather, whether the actual guilty verdict rendered in the ques-
tioned trial was surely unattributable to the error. Id. It is the
duty of the trial judge to instruct the jury on the pertinent law
of the case, whether requested to do so or not, and an instruc-
tion or instructions which by the omission of certain elements
have the effect of withdrawing from the jury an essential issue
or element in the case are prejudicially erroneous. State v.
Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997).
Bedford argues that he was prejudiced in this case because
he “did not deny that he pushed [Jessica], but rather asserted
that such actions were justified in self-defense. Without author-
ity to consider self-defense, the jury was left with no choice but
to find” Bedford guilty on count 3. Brief for appellant at 38.
While we note that the jury could have found that Bedford
pushed Jessica without intentionally and knowingly causing
her bodily injury or that Bedford did not threaten Jessica with
imminent bodily injury, see § 28-323(1)(a) and (b), we agree
that the foreclosure of the possibility for the jury to find that
Bedford pushed Jessica in self-defense was not harmless error.
See State v. Kinser, 252 Neb. at 609, 567 N.W.2d at 293 (“[t]he
effect of the trial court’s refusal to instruct the jury concern-
ing [defendant’s] claim of self-defense was to withdraw from
the jury consideration of an essential issue in the case, that
being the State’s burden to prove that [defendant] did not act
in self-defense”). Given the record in this case, we cannot say
that the guilty verdict on count 3 was surely unattributable to
the district court’s failure to instruct the jury on self-defense.
Accordingly, we find that the district court’s failure to instruct
the jury on Bedford’s self-defense claim as related to count 3
constituted reversible error.
3. Double Jeopardy and Sufficiency
of Evidence for Count 3
[20,21] Upon finding reversible error in a criminal trial,
an appellate court must determine whether the total evidence
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Cite as 31 Neb. App. 339admitted by the district court, erroneously or not, was suffi-
cient to sustain a guilty verdict. State v. Draper, 289 Neb. 777,
857 N.W.2d 334 (2015). If it was not, then double jeopardy
forbids a remand for a new trial. Id. Accordingly, having found
reversible error in the district court’s failure to instruct the jury
on Bedford’s self-defense claim as related to count 3, we must
determine whether the evidence admitted was sufficient to sus-
tain Bedford’s conviction for third degree domestic assault on
October 5, 2019.
As alleged in the amended information and pursuant to
statute, a person commits third degree domestic assault if he
or she “[i]ntentionally and knowingly causes bodily injury to
his or her intimate partner,” § 28-323(1)(a), or “[t]hreatens an
intimate partner with imminent bodily injury,” § 28-323(1)(b).
Evidence introduced at trial indicated that Bedford and Jessica
began to argue in their bedroom on October 5, 2019, and this
argument escalated into a physical confrontation. Jessica’s son
also testified that he heard a “big boom” from the bedroom as
well as Jessica “crying” and that he believed it necessary to
get help from the police. Upon arriving, officers photographed
Jessica’s injuries, and it was confirmed that these injuries did
not exist prior to the argument. We also note the testimony of
the officers indicated that Bedford was attempting to elude
law enforcement. While there is conflicting evidence regard-
ing this incident, it is not the role of this court to resolve such
conflicts. See State v. Figures, 308 Neb. 801, 957 N.W.2d
161 (2021). Rather, we view the evidence in the light most
favorable to the prosecution. See id. We therefore find that
the evidence was sufficient to sustain Bedford’s conviction
on count 3, and double jeopardy does not preclude a new trial
concerning count 3.
[22] Accordingly, we reverse Bedford’s conviction and sen-
tence on count 3 and remand the cause for new trial. This
holding is limited solely to count 3. See Beyl v. State, 165
Neb. 260, 85 N.W.2d 653 (1957) (appellate court may reverse
criminal judgment in part and affirm judgment in part where
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Cite as 31 Neb. App. 339reversed conviction is separate and distinct from remaining
convictions).
4. Sufficiency of Evidence for
Remaining Convictions
Bedford claims the State failed to meet its burden of proof
as to all offenses charged; however, other than arguing that he
presented an alibi defense “through the testimony of multiple
witnesses” for the April 2020 incident, he does not specifically
address the failure of proof as to each conviction. Brief for
appellant at 34. Nevertheless, we will consider whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. See State v.
Figures, supra. Having previously addressed count 3, we dis-
cuss only the remaining counts here.
(a) Counts 1 and 2
Bedford was convicted of one count of assault by strangula-
tion, count 1, and one count of third degree domestic assault,
count 2, in connection with the incident on April 4, 2020.
As noted, he argues only that he “presented an alibi defense
through the testimony of multiple witnesses [who] testified
that he had been at their house the day of” the April 4 incident.
Brief for appellant at 34.
Under § 28-310.01(1), a person commits an assault by
strangulation if the person knowingly and intentionally
“[i]mpedes the normal breathing or circulation of the blood
of another person by applying pressure on the throat or neck
of the other person” or “[i]mpedes the normal breathing
of another person by covering the mouth and nose of the
person.” Pursuant to § 28-323(1), a person commits third
degree domestic assault if he or she “(a) [i]ntentionally and
knowingly causes bodily injury to his or her intimate part-
ner” or “(b) [t]hreatens an intimate partner with imminent
bodily injury.”
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Cite as 31 Neb. App. 339At trial, Jessica and her grandmother stated that they
observed Bedford come to the house on April 4, 2020. Jessica
testified that Bedford pulled her into the garage and that they
began to argue. This argument escalated, and Bedford began
to “choke[]” Jessica before she fell to the ground due to lack
of air. Jessica then described that Bedford began to strike her
while she was still on the ground and that he left at some point
thereafter. After her grandmother called 911, law enforcement
photographed injuries to Jessica’s neck and chest area that,
according to a licensed registered nurse who viewed the photo-
graphs, were “consistent with strangulation.” Although Bedford
identifies that his account of the April 4 incident conflicts
with Jessica’s, such conflicts are to be resolved by the jury.
See State v. Figures, supra. Viewing the evidence in the light
most favorable to the State, we find that there was sufficient
evidence to sustain Bedford’s convictions for assault by stran-
gulation and third degree domestic assault in connection with
the April 2020 incident.
(b) Count 5
[23] Bedford was convicted of tampering with a witness.
Pursuant to § 28-919(1):
A person commits the offense of tampering with a wit-
ness or informant if, believing that an official proceeding
or investigation of a criminal or civil matter is pending
or about to be instituted, he or she attempts to induce or
otherwise cause a witness or informant to:
(a) Testify or inform falsely;
(b) Withhold any testimony, information, document, or
thing;
(c) Elude legal process summoning him or her to tes-
tify or supply evidence; or
(d) Absent himself or herself from any proceeding
or investigation to which he or she has been legally
summoned.
A defendant’s reasons for attempting to induce a witness to
commit any of the acts enumerated in § 28-919(1) are not
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Cite as 31 Neb. App. 339relevant. State v. Benson, 305 Neb. 949, 943 N.W.2d 426(2020).
On October 7, 2019, a phone call between Bedford and
Jessica was recorded while Bedford was in jail. This phone
call occurred despite Bedford’s prohibition from contacting
Jessica due to his arrest. A recording of the call was received
at trial, and in it, Bedford instructed Jessica “not [to] come to
court” if she were subpoenaed. Bedford also told Jessica that
he “needed her to stay focused” and to “[m]ake sure [she] stays
on this shit,” and according to her testimony, Jessica “[w]hole-
heartedly” believed that Bedford was telling her to “continue to
work on getting this case dropped.” We also note Jessica’s tes-
timony indicating that she wrote exhibit 7 “[b]ecause [Bedford]
asked [her] to” in order to help him get the charges “dropped.”
From this record, a rational fact finder could find that the State
proved the elements of tampering with a witness beyond rea-
sonable doubt. Accordingly, we find the evidence sufficient to
sustain Bedford’s conviction.
5. Ineffective Assistance of Counsel
[24] When a defendant’s trial counsel is different from his
or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective perform­
ance which is known to the defendant or is apparent from
the record. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494(2019). Bedford’s counsel on direct appeal is different from his
trial counsel.
[25,26] Appellate courts have generally reached ineffective
assistance of counsel claims on direct appeal only in those
instances where it was clear from the record that such claims
were without merit, or in the rare case where trial counsel’s
error was so egregious and resulted in such a high level of
prejudice that no tactic or strategy could overcome the effect of
the error, which effect was a fundamentally unfair trial. State
v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019). An inef-
fective assistance of counsel claim made on direct appeal can
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Cite as 31 Neb. App. 339be found to be without merit if the record establishes that trial
counsel’s performance was not deficient or that the appellant
could not establish prejudice. Id.[27-29] Generally, to prevail on a claim of ineffective
­assistance of counsel under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant
must show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense. State v. Mrza, 302 Neb. 931, 926 N.W.2d
79 (2019). To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. Id. To show prejudice, the defendant must demonstrate
a reasonable probability that but for counsel’s deficient per­
formance, the result of the proceeding would have been differ-
ent. Id. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.
With these governing principles in mind, we turn now to
address Bedford’s claims of ineffective assistance of counsel.
(a) Failure to File Motion for Discharge
on Speedy Trial Grounds
Bedford alleges that his trial counsel was ineffective for
failing to file a motion for absolute discharge on speedy trial
grounds. He argues that “trial counsel did not protect his
right to a speedy trial by failing to file and litigate a motion
for discharge for violation of his speedy trial rights.” Brief
for appellant at 29. He then references the federal and state
Constitutions as guaranteeing the right to a speedy trial and
cites to Neb. Rev. Stat. § 29-1207(1) (Reissue 2016) for the
requirement that a defendant “shall be brought to trial within
six months.”
[30] When a defendant alleges he or she was prejudiced by
trial counsel’s failure to properly assert the defendant’s speedy
trial rights, the court must consider the merits of the defend­
ant’s speedy trial rights under Strickland. State v. Collins, 299
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Cite as 31 Neb. App. 339Neb. 160, 907 N.W.2d 721 (2018). Only if a motion would
have resulted in the defendant’s absolute discharge, thus bar-
ring a later trial and conviction, could the failure to move for
discharge be deemed ineffective assistance. Id.(i) Statutory Speedy Trial Rights
To calculate the deadline for trial for speedy trial purposes,
a court must exclude the day the State filed the information,
count forward 6 months, back up 1 day, and then add any time
excluded under § 29-1207(4). The original information was
filed August 13, 2020. Therefore, the speedy trial deadline
before adding any excluded time was February 13, 2021.
We note that there were three continuances ordered dur-
ing this case. In an order entered on December 2, 2020, the
district court first continued trial until February 1, 2021, as
a result of the COVID-19 pandemic and related restrictions
placed on the Lancaster County District Court. In an order
entered on January 25, trial was again continued until April 5
due to the COVID-19 pandemic. In an order entered on March
25, the court granted the State’s motion to continue, finding
good cause existed due to the State’s “call[ing] off [of] wit-
nesses” in anticipation of a plea. Trial thereafter commenced
on June 7.
Section 29-1207(4)(c) excludes certain periods of delay
“resulting from a continuance granted at the request of the
prosecuting attorney,” and § 29-1207(4)(f) allows the exclu-
sion of “[o]ther periods of delay not specifically enumerated
in this section, but only if the court finds that they are for
good cause.”
On appeal, Bedford does not contest the propriety of these
continuances or otherwise assert that the time periods should
have been included. He simply asserts that he had “been incar-
cerated for over a year” and “the matter was continued three
times over a span of seven months.” Brief for appellant at 30.
We note that the Nebraska Supreme Court has held in several
cases that the COVID-19 pandemic provided sufficiently good
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880, 969 N.W.2d 871 (2022); State v. Gnanaprakasam, 310
Neb. 519, 967 N.W.2d 89 (2021); State v. Brown, 310 Neb.
224, 964 N.W.2d 682 (2021). We further conclude, as the dis-
trict court did, that the surprise placed upon the State by the
changed plea also constituted good cause to continue trial. All
such periods were therefore excludable under § 29-1207.
After adding the excluded time, the deadline for trial was
August 19, 2021. Trial commenced on June 7. Accordingly,
trial counsel could not have been ineffective in failing to file a
motion to discharge on statutory speedy trial grounds, as trial
commenced prior to the statutory deadline.
(ii) Constitutional Speedy Trial Rights
[31] Determining whether a defendant’s constitutional right
to a speedy trial has been violated requires a balancing test in
which the courts must approach each case on an ad hoc basis.
State v. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013). That
test involves consideration of four factors: (1) the length of
delay, (2) the reason for the delay, (3) the defendant’s assertion
of the right, and (4) prejudice to the defendant. State v. Brown,
supra. None of these four factors standing alone is a necessary
or sufficient condition to the finding of a deprivation of the
right to a speedy trial. Id. Rather, the factors are related and
must be considered together with other circumstances as may
be relevant. Id.
[32] Again, in support of this assigned error, Bedford refers
only to his incarceration and the three continuances granted
over 7 months as described above. As noted previously, trial
commenced on June 7, 2021, which was before the speedy trial
deadline. The delays in this case were due to the COVID‑19
pandemic, as well as Bedford’s decision to enter a plea of not
guilty after the State was informed that the matter would not
progress to trial. We have already found these delays to be
for good cause. On our examination of the record, we further
find that Bedford has not shown prejudice that would have
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Cite as 31 Neb. App. 339warranted discharge. See State v. Betancourt-Garcia, 295 Neb.
170, 887 N.W.2d 296 (2016) (in analyzing prejudice factor,
there are three aspects: (1) preventing oppressive pretrial incar-
ceration, (2) minimizing anxiety and concern of defendant, and
(3) limiting possibility that defense will be impaired by dim-
ming memories and loss of exculpatory evidence), abrogated
on other grounds, State v. Guzman, 305 Neb. 376, 940 N.W.2d
552 (2020). Although Bedford was incarcerated for a substan-
tial period of time and expressed concern regarding his incar-
ceration, nothing in the record indicated that Bedford’s defense
was impaired, given the substantial detail with which Bedford
and his witnesses testified. We conclude that Bedford’s consti-
tutional speedy trial rights were not violated by the delays in
this case. Accordingly, counsel could not have been ineffective
in not filing a motion to discharge on speedy trial grounds that
would have failed. See State v. Collins, 299 Neb. 160, 907
N.W.2d 721 (2018).
(b) Failure to Present Evidence
Bedford contends that trial counsel was ineffective in fail-
ing to “present evidence . . . in [counsel’s] possession at trial,”
including “emails and text messages” from Jessica. Brief for
appellant at 31. He asserts that “[t]hese emails and text mes-
sages could have been used to impeach and . . . challenge”
Jessica’s testimony. Id. We conclude that this claim of deficient
performance has not been sufficiently alleged.
[33,34] When making an ineffective assistance of coun-
sel claim on direct appeal, allegations of prejudice are not
required. State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
However, a defendant must make specific allegations of the
conduct that he or she claims constitutes deficient performance.
Id. Appellate counsel must present the claim with enough par-
ticularity for (1) an appellate court to make a determination
of whether the claim can be decided upon the trial record and
(2) a district court later reviewing a petition for postconviction
relief to be able to recognize whether the claim was brought
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counsel performed deficiently or that trial counsel was ineffec-
tive are insufficient to raise an ineffective assistance claim on
direct appeal and thereby preserve the issue for later review.
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
Bedford offers this court no further description of which
emails or text messages are applicable; nor does he provide any
indication of their contents or how they could have been used
to impeach Jessica’s testimony. It is not sufficient to simply
allege that some messages were in counsel’s possession that
may or may not have been relevant to the impeachment of
Jessica’s testimony. See, State v. Hill, 298 Neb. 675, 699, 905
N.W.2d 668, 686 (2018) (ineffective assistance of trial counsel
claim regarding counsel’s failure to depose “‘numerous other
police officers’” without specifically alleging what testimony
of these witnesses would have been is not sufficient allega-
tion of deficient performance for purpose of preserving claim
for postconviction review); State v. Ash, supra (ineffective
assistance of trial counsel claim alleging deficient performance
based merely on trial counsel’s possession of psychiatric evalu-
ation which was not offered or used at trial without further
explanation as to what it contained, how it could have been
used, or what it might have been offered to prove is not stated
with sufficient particularity to preserve claim for postconvic-
tion review).
Accordingly, we find that Bedford has not alleged deficient
performance with sufficient particularity, and therefore, this
claim is not preserved for postconviction review.
(c) Failure to Advise of Habitual
Criminal Enhancement
Bedford claims that trial counsel was ineffective in failing
to properly advise him that “he could be facing two separate
and potentially consecutive habitual criminal sentences” on
counts 1 and 5. Brief for appellant at 31. He argues that he was
prejudiced because he was not afforded “all the information to
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Cite as 31 Neb. App. 339make sound decisions about how to proceed with his case.” Id.However, the district court imposed concurrent and identical
sentences for counts 1 and 5, and only these two charges were
subject to enhancement. Bedford further does not describe how
his approach to the trial would have changed with the knowl-
edge that count 1 was also subject to further enhancement. In
light of the fact that Bedford was not actually impacted by the
two “potentially consecutive habitual criminal sentences,” id.,we find that he cannot show prejudice. This claim of ineffec-
tive assistance therefore fails.
(d) Failure to Select Fair and
Impartial Jury
Bedford asserts that trial counsel was ineffective in failing
to select an impartial jury. He notes that “[m]ore than half of
the jury was composed of females,” which composition he
claims caused him prejudice because this was a case where
“the victim was female . . . and the alleged perpetrator was
a male.” Id. at 32. He also asserts that many of the jurors
reported being teachers by profession and that, as one male
juror described, teachers “‘see things’” regarding domestic
violence. Id. Bedford further points out that many of the jurors
had personal experience with domestic abuse as both victims
and third parties to abusive relationships.
[35-37] When reviewing claims of alleged ineffective
assist­ance of counsel, an appellate court affords trial counsel
due deference to formulate trial strategy and tactics. State
v. Torres, 295 Neb. 830, 894 N.W.2d 191 (2017). There is
a strong presumption that counsel acted reasonably, and an
appellate court will not second-guess reasonable strategic
decisions. Id. Even if found unreasonable, the error justi-
fies setting aside the judgment only if there was prejudice.
See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). We
first note that the prospective jury pool was predominantly
female, and three male jurors were selected to serve on the
jury. Further, although the record does not conclusively show
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Cite as 31 Neb. App. 339which of the prospective jurors were struck via the defense’s
peremptory strikes, several prospective jurors who fell within
the categories highlighted by Bedford on appeal as problem-
atic were struck from the jury pool. A defendant is consti-
tutionally guaranteed a jury that is fair and impartial, but a
defendant is not guaranteed a jury comprising only particular
jurors. See State v. Huff, 25 Neb. App. 219, 904 N.W.2d 281(2017). The prospective jurors who felt that they would have
difficulties being impartial in this case due to their prior expe-
riences were dismissed, and those selected jurors who had
described experiences with domestic violence and abusive
relationships affirmed that they could be impartial in this mat-
ter. Even if trial counsel’s strategy in jury selection had been
unreasonable, we find that the record refutes Bedford’s allega-
tions that he was prejudiced by a biased jury. Accordingly, this
ineffective assistance claim fails.
(e) Failure to File Motion to Sever
Bedford claims that trial counsel was ineffective in failing
to file a motion to sever the counts listed in the information.
He argues that “[p]ermitting these counts to be tried together
impermissibly tainted the jury’s perception . . . and [the
jurors’] determination of guilt” such that “he did not receive a
fair trial on each separate count in this case.” Brief for appel-
lant at 33.
[38-41] Neb. Rev. Stat. § 29-2002 (Reissue 2016) provides
for the joinder and severance of charges in a criminal case. In
pertinent part, § 29-2002 provides:
(1) Two or more offenses may be charged in the same
indictment, information, or complaint in a separate count
for each offense if the offenses charged, whether felonies
or misdemeanors, or both, are of the same or similar
character or are based on the same act or transaction or
on two or more acts or transactions connected together or
constituting parts of a common scheme or plan.
....
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Cite as 31 Neb. App. 339(3) If it appears that a defendant or the state would
be prejudiced by a joinder of offenses in an indictment,
information, or complaint[,] . . . the court may order an
election for separate trials of counts, indictments, infor-
mations, or complaints . . . or provide whatever other
relief justice requires.
Whether offenses were properly joined involves a two-stage
analysis: (1) whether the offenses were sufficiently related to
be joinable and (2) whether the joinder was prejudicial to the
defendant. State v. Benson, 305 Neb. 949, 943 N.W.2d 426(2020). There is a strong presumption against severing prop-
erly joined counts. Id. Joined charges do not usually result in
prejudice if the evidence is sufficiently simple and distinct for
the jury to easily separate evidence of the charges during delib-
erations. Id. Further, prejudice from joinder cannot be shown if
evidence of one charge would have been admissible in a sepa-
rate trial of another charge. Id.Bedford does not specify which counts in the amended infor-
mation should have been severed. However, we first observe
that the counts relating to the three incidents of assault all
involved conflict between Bedford and Jessica in similar cir-
cumstances in that they escalated from arguments between the
two, constituting a pattern of similar conduct. With respect to
the witness tampering count, the evidence of this charge would
have been admissible as evidence of consciousness of guilt in
a separate trial on his domestic assault charges, as he explicitly
instructed Jessica not to come to court if she were subpoenaed
after his arrest following the October 2019 assault. See id.(evidence of defendant’s phone calls to witnesses would have
been admissible in separate trial as evidence of defendant’s
conscious guilt that crime had been committed).
Further, we find that the evidence in this case was suffi-
ciently simple and distinct for the jury to separate the evidence
corresponding to each count during deliberations. Each inci-
dent in this matter was distinct, and the jury was instructed
to consider each incident individually. That the jury found
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Cite as 31 Neb. App. 339Bedford not guilty on count 4 (relating to the July 2019
assault) is an indication that the jury in fact considered each
count indi­vidually. We therefore conclude that Bedford was not
prejudiced by trial counsel’s failure to file a motion to sever, as
any such motion would have failed. Accordingly, this ineffec-
tive assist­ance claim fails.
VI. CONCLUSION
For the reasons set forth above, we find that the district
court erred in failing to instruct the jury on Bedford’s claim
of self-defense as to count 3. As for the remaining counts, the
evidence was sufficient to sustain Bedford’s convictions on
each count. We affirm Bedford’s convictions and sentences as
to counts 1, 2, and 5; however, we reverse his conviction and
sentence as to count 3 and remand the cause for a new trial
solely on count 3.
We further find that the following claims by Bedford
that his trial counsel was ineffective fail: failing to file a
motion for discharge on speedy trial grounds, failing to advise
Bedford that counts 1 and 5 were both subject to habitual
criminal enhancement, failing to select a fair and impar-
tial jury, and failing to file a motion to sever the counts in
the amended information. Bedford’s ineffective assistance of
counsel claim regarding the failure of trial counsel to present
emails and text messages in his possession was not alleged
with the required specificity and is not preserved for postcon-
viction review.
Affirmed in part, and in part reversed
and remanded for a new trial.
Bishop, Judge, concurring in part, and in part dissenting.
I concur in all aspects of the majority opinion, except for
that portion reversing the conviction and remanding the cause
for a new trial as to count 3 (the October 2019 incident)
based on the district court’s failure to instruct the jury on
­self-defense as to that count. In my opinion, the trial court
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Cite as 31 Neb. App. 339properly concluded that a self-defense instruction was not
supported by the evidence; I would have affirmed Bedford’s
convictions.
I agree with the State that the “evidence and testimony make
clear that there was no established reasonable and good faith
belief on the part of Bedford that force was immediately neces-
sary nor justified during the October 5, 2019[,] assault.” Brief
for appellee at 43. The State argues that Bedford “has not artic-
ulated why shoving [Jessica] was ‘necessary to protect him-
self’” and that Bedford failed to sufficiently establish a claim
of self-defense, because “he did not testify as to the immediate
threat posed by [Jessica], prior threats followed with physical
harm, weapons held by [Jessica], injuries caused by [Jessica],
or what he believed she intended to do if he did not make
physical contact with her.” Id. I agree that Bedford failed to
put forward any evidence to suggest he “pushed [Jessica] off of
[him]” in an effort to protect himself from any unlawful force
being used by Jessica.
Only where the jury could reasonably find that the defend­
ant’s use of force was justified should the trial court instruct
the jury on self-defense. State v. Case, 304 Neb. 829, 937
N.W.2d 216 (2020). “It is not enough to merely show ‘any
evidence’ of self-defense to support an instruction thereon.
Instead, the defendant must show ‘any evidence in support of
a legally cognizable theory of self-defense.’” Id. at 843, 937
N.W.2d at 226 (quoting State v. Kinser, 252 Neb. 600, 567
N.W.2d 287 (1997)). Further, the Nebraska Supreme Court
has interpreted Neb. Rev. Stat. § 28-1409 (Reissue 2016) to
mean that “to successfully assert the claim of self-defense, a
defendant must have a reasonable and good faith belief in the
necessity of using force and the force used in defense must be
immediately necessary and justified under the circumstances.”
State v. Case, 304 Neb. at 843, 937 N.W.2d at 226.
The majority determines that Bedford articulated a cogniza-
ble theory of self-defense because “he held a reasonable belief
that the force used to push Jessica away was immediately
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Cite as 31 Neb. App. 339necessary and justified to allow him to leave the residence.”
However, in my opinion, these facts are insufficient to estab-
lish any belief by Bedford that the force used was “imme-
diately necessary for the purpose of protecting himself,” as
required by § 28-1409(1). Bedford never testified, nor did any
other evidence indicate, that Bedford pushed Jessica “off of
[him]” to protect himself. Rather, he testified he was packing
his possessions when Jessica pushed him into the bedroom
door to stop him from leaving and said he “wasn’t going any-
where.” Bedford claimed that he then tried to continue packing
but that Jessica pushed him and pinned him against the door,
at which point he “didn’t shove her,” but he “pushed [Jessica]
off of [him]” and she tripped over one of his shoes and hit her
face on the nearby “bed base.” By his own testimony, Bedford
was able to return to attempting to pack after Jessica allegedly
pushed him into the bedroom door initially. Notably, Bedford
testified that when Jessica fell, “I helped her up. I felt that was
my fault. Even so, I didn’t mean to hurt her.”
Bedford did not produce any evidence in support of a
legally cognizable theory of self-defense based upon his own
testimony. Even disregarding any conflicting evidence regard-
ing the October 2019 incident, Bedford’s own testimony does
not suggest that he pushed Jessica to protect himself against a
perceived danger to himself from Jessica; rather, he attempted
to persuade the jury that Jessica’s injury was simply the result
of her tripping and falling when he pushed her “off of” him.
By claiming that Jessica’s injury from her fall was accidental
and not intentionally caused by him, Bedford placed evi-
dence before the jury that he could not have committed third
degree domestic assault, since he did not “[i]ntentionally and
knowingly cause[] bodily injury to his . . . intimate partner.”
Neb. Rev. Stat. § 28-323(1)(a) (Reissue 2016). Bedford even
testified that he “believe[d] that [he] apologized to [Jessica]
again” while he was being arrested. Bedford never testified
that he pushed Jessica because such force was immediately
necessary and justified for the purpose of protecting himself
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Cite as 31 Neb. App. 339against the use of unlawful force by Jessica. The lack of evi-
dence that Bedford believed such force to be necessary and
justified to protect himself supports the district court’s refusal
to tender Bedford’s proposed self-defense instruction.
Further, as noted in the majority’s opinion, self-defense
is a statutorily affirmative defense, meaning Bedford had
the burden of going forward with evidence of self-defense,
after which the State would have had the burden to prove
Bedford did not act in self-defense. See State v. France, 279
Neb. 49, 776 N.W.2d 510 (2009). But how could the State
meet a burden of proving Bedford did not act in self-defense
when Bedford made no effort to put forth any evidence of
self-defense? Bedford’s theory of defense was that he did not
commit the crime of third degree domestic assault because
he did not intend to cause bodily injury to Jessica; he admit-
ted to pushing her, but testified that her tripping over one of
his shoes and hitting her face on the nearby “bed base” was
accidental. Bedford did not admit to harming Jessica on the
basis that his action was justified to protect himself; rather,
he claimed her injury was unintended. The Nebraska Supreme
Court has held that
when the defendant makes no effort to meet the ini-
tial burden of proof to prove self-defense and when
self-defense is not the defendant’s theory of the case,
a self-defense instruction is not warranted. A theory of
self-defense necessarily involves an inference or admis-
sion that the defendant harmed the victim, but that the
defendant’s acts were justified. By giving a self-defense
instruction when the defendant’s theory of the case is
that he or she did not commit the crime, the court risks
confusing or misleading the jury.
State v. Faust, 265 Neb. 845, 879, 660 N.W.2d 844, 874 (2003),
disapproved on other grounds, State v. McCulloch, 274 Neb.
636, 742 N.W.2d 727 (2007). See, also, State v. Brown, 220
Neb. 849, 374 N.W.2d 28 (1985) (no error in failing to instruct
on self-defense, first degree assault conviction affirmed; court
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defense theory of accidental injury); State v. Canby, 217 Neb.
461, 348 N.W.2d 900 (1984) (no error in refusal by trial court
to give self-defense instruction when defendant’s testimony
was not that she used justifiable force, but, rather, that she
accidentally and unintentionally, or without purpose, harmed
victim); State v. Staats, No. 2019CA00181, 2021 WL 1502535at *7 (Ohio App. Apr. 16, 2021) (no plain error in trial court’s
failure to instruct on self-defense, domestic violence con-
viction affirmed; defendant not entitled to self-defense jury
instruction when defense at trial through defendant’s own
testimony was that his conduct was justified because victim
“‘got in his face,’” that he did not cause victim’s bruises, and
that he was not in fear of bodily injury but “merely wanted
to stop her ‘from getting in his face’”); State v. Green, No.
M2019‑02197‑CCA‑R3‑CD, 2021 WL 1186413 at *6 (Tenn.
Crim. App. Mar. 30, 2021) (trial court properly refused to
instruct jury on self-defense; aggravated assault and domestic
assault convictions affirmed; defendant’s testimony was that
victim hit his head with her fist, would not let him out of
bedroom, was barricading door, and was pushing and taunting
him as he made his way to den and that he at most “tried to
push by” victim to get to front door, “not that he pushed her to
defend himself from her”; and when defendant denies inflict-
ing any injury, he is not entitled to claim self-defense).
Based on the evidence presented, including Bedford’s own
testimony and without regard to any conflicting evidence, I
conclude there was no evidence to support a legally cogni-
zable theory of self-defense. I find no error in the trial court’s
refusal to instruct on self-defense when Bedford’s own testi-
mony was not that he used justifiable force, but, rather, that he
accidentally and unintentionally, or without purpose, harmed
Jessica. See State v. Canby, supra.