The opinion
Decisions of the Nebraska Court of Appeals
STATE v. RUEGGE 249
Cite as 21 Neb. App. 249
We determined above that Melanie had a legitimate reason
to leave the State of Nebraska and provided sufficient evidence
that removal was in Kendra’s best interests. Therefore, we
reverse the trial court’s custody determination and reinstate the
custody determination set forth in the decree.
VI. CONCLUSION
We conclude the district court abused its discretion in deter-
mining that Melanie’s acceptance of a job in New Mexico did
not constitute a legitimate reason to leave the state. Upon our
de novo review and after consideration of various relevant fac-
tors, we find that removing Kendra to New Mexico is in her
best interests. Accordingly, we reverse the court’s order deny-
ing Melanie’s complaint to modify and the court’s modifica-
tion of custody. We order legal custody of Kendra to be held
jointly by the parties and order physical custody be restored to
Melanie. We remand for further proceedings consistent with
our opinion.
R eversed and remanded for
further proceedings.
State of Nebraska, appellee, v.
Larry Lee Ruegge, appellant.
___ N.W.2d ___
Filed September 10, 2013. No. A-12-550.
1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: 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 matters 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.
2. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial
depends largely on the facts of each case.
3. Motions for New Trial: Prosecuting Attorneys: Appeal and Error. An appel-
late court reviews a motion for new trial on the basis of prosecutorial misconduct
for an abuse of discretion by the trial court.
Decisions of the Nebraska Court of Appeals
250 21 NEBRASKA APPELLATE REPORTS
4. Attorneys at Law: Motions for Mistrial: Verdicts: Appeal and Error. A
party may not raise alleged misconduct of adverse counsel on appeal where,
despite knowledge of the alleged misconduct, the party claiming the misconduct
failed to request a mistrial and instead agreed to take his or her chance on a
favorable verdict.
5. Trial: Appeal and Error. On appeal, a defendant may not assert a different
ground for an objection than was offered to the trier of fact.
6. Trial: Attorneys at Law. One is allowed considerable latitude in making an
opening statement.
7. Trial: Appeal and Error. An objection to the prosecutor’s argument made after
the jury has been instructed and has retired is untimely and for that reason will
not be reviewed on appeal.
8. Records: Appeal and Error. It is incumbent upon an appellant to present a
record which supports the errors assigned.
9. Jury Instructions: Appeal and Error. Whether jury instructions are correct is
a question of law, which an appellate court resolves independently of the lower
court’s decision.
10. Jury Instructions: Proof: Appeal and Error. 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 the 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.
11. Theft: Words and Phrases. The term “knowing,” as used in Neb. Rev. Stat.
§ 28-517 (Reissue 2008), imposes a subjective standard of knowledge.
12. 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 counsel’s performance was defi-
cient and that this deficient performance actually prejudiced his or her defense.
13. ____: ____. The two-prong ineffective assistance of counsel test need not be
addressed in order.
14. Effectiveness of Counsel: Presumptions. When considering whether trial coun-
sel’s performance was deficient, there is a strong presumption that counsel acted
reasonably.
15. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. Trial
counsel is afforded due deference to formulate trial strategy and tactics. When
reviewing a claim of ineffective assistance of counsel, an appellate court will not
second-guess reasonable strategic decisions by counsel.
16. Effectiveness of Counsel: Appeal and Error. A claim of ineffective assistance
of counsel need not be dismissed merely because it is made on direct appeal.
17. Trial: Prosecuting Attorneys. Generally, in assessing allegations of prosecuto-
rial misconduct in closing arguments, a court first determines whether the pros-
ecutor’s remarks were improper. It is then necessary to determine the extent to
which the improper remarks had a prejudicial effect on the defendant’s right to a
fair trial.
18. Motions for Mistrial. A mistrial is appropriate when an event occurs during the
course of a trial which is of such a nature that its damaging effects would prevent
a fair trial.
Decisions of the Nebraska Court of Appeals
STATE v. RUEGGE 251
Cite as 21 Neb. App. 249
19. Trial: Attorneys at Law. The decision about whether to make an objection dur-
ing a trial has long been considered an aspect of trial strategy.
20. ____: ____. A decision not to object could be explained by trial counsel’s calcu-
lated strategy not to highlight the objectionable material.
Appeal from the District Court for Holt County: Mark D.
Kozisek, Judge. Affirmed.
Michael S. Borders, of Borders Law Office, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.
Irwin, Judge.
I. INTRODUCTION
Larry Lee Ruegge was convicted by a jury of theft by
receiving stolen property. The district court subsequently found
Ruegge to be a habitual offender and sentenced him to 10
years’ imprisonment. Ruegge appeals from his conviction for
theft by receiving stolen property. On appeal, Ruegge assigns
numerous errors, including that there was insufficient evidence
to support his conviction, that the State committed various
instances of misconduct, and that the district court erred in
failing to amend a certain jury instruction pursuant to Ruegge’s
request. Ruegge also alleges that he received ineffective assist
ance of trial counsel.
Upon our review, we find no merit to Ruegge’s assertions
on appeal. Accordingly, we affirm his conviction for theft by
receiving stolen property.
II. BACKGROUND
The State filed a criminal complaint charging Ruegge with
theft by receiving stolen property pursuant to Neb. Rev. Stat.
§ 28-517 (Reissue 2008). Later, the State filed an amended
complaint which charged Ruegge with being a habitual
offender pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2008),
in addition to the original charge of theft by receiving stolen
property.
The theft by receiving stolen property charge stems from
events which occurred in November and December 2010.
Decisions of the Nebraska Court of Appeals
252 21 NEBRASKA APPELLATE REPORTS
Evidence adduced at trial revealed that sometime during this
time period, a flatbed trailer was stolen from Scribner Grain.
Bolted to the flatbed trailer when it was stolen were vari-
ous tools, including a generator/welder, an air compressor, a
power washer, and some smaller hand tools. In the early part
of December, an employee of Scribner Grain observed in the
back of a pickup truck the generator/welder that had been sto-
len with the flatbed trailer. The employee followed the pickup
truck to a local salvage yard, where it was discovered that the
generator/welder was, in fact, the same generator/welder that
had previously been stolen from Scribner Grain.
At trial, the State presented evidence to demonstrate that
Ruegge had been in possession of the stolen generator/welder
and had traded it, knowing that it was stolen, to the owner of
the salvage yard, Richard Vande Mheen. Vande Mheen testified
that on November 26, 2010, Ruegge came to Vande Mheen’s
home with the generator/welder and proposed a trade. Ruegge
gave Vande Mheen the generator/welder in exchange for a
snowmobile. Vande Mheen testified that Ruegge told him that
he had purchased the generator/welder “when he was repairing
irrigation systems.”
When Vande Mheen was informed that the generator/welder
had been stolen, he told police that he had gotten the tool from
Ruegge. Vande Mheen then informed Ruegge that the police
were asking about the generator/welder. Ruegge told Vande
Mheen that if he did not tell police where he had gotten the
tool, Ruegge would “make it worth [his] while.” Ruegge also
told Vande Mheen that he should tell police that the tool had
“come in in a load of iron.”
The State also presented evidence to demonstrate that the
value of the generator/welder was approximately $2,500.
Ruegge’s defense focused almost primarily on discrediting
Vande Mheen’s testimony. Through his cross-examination of
the State’s witnesses, Ruegge attempted to demonstrate that no
one actually saw Ruegge with the generator/welder except for
Vande Mheen and that Vande Mheen was simply not a credible
witness, because he had a reason to lie to the police and to the
jury, that is, he knew the tool was stolen when he obtained it.
Ruegge also elicited testimony from the State’s witnesses to
Decisions of the Nebraska Court of Appeals
STATE v. RUEGGE 253
Cite as 21 Neb. App. 249
establish that Vande Mheen had actually obtained the stolen
generator/welder from someone other than Ruegge.
After hearing all of the evidence, the jury convicted Ruegge
of theft by receiving stolen property. The district court subse-
quently found Ruegge to be a habitual criminal and sentenced
him to 10 years’ imprisonment.
Ruegge appeals his conviction here.
III. ASSIGNMENTS OF ERROR
On appeal, Ruegge assigns 11 errors, which we consoli-
date to 4 errors for our review. Ruegge first alleges that the
evidence was insufficient to support his conviction. He also
alleges that the State committed various instances of miscon-
duct during voir dire and its opening and closing statements.
He alleges that the district court erred by denying his request
for a specific jury instruction. Finally, Ruegge asserts that he
received ineffective assistance of trial counsel.
IV. ANALYSIS
1. Sufficiency of Evidence
Ruegge alleges that the State presented insufficient evidence
to prove beyond a reasonable doubt that he was ever in pos-
session of the stolen generator/welder. Ruegge also alleges that
the district court erred in overruling his motion for a directed
verdict which was based upon insufficiency of the evidence.
Upon our review, we conclude that the evidence was sufficient
to support the conviction for theft by receiving stolen property
and that, accordingly, the district court did not err in overruling
Ruegge’s motion for a directed verdict.
(a) Standard of Review
[1] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late 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,
Decisions of the Nebraska Court of Appeals
254 21 NEBRASKA APPELLATE REPORTS
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction. State v. France, 279 Neb. 49,
776 N.W.2d 510 (2009).
(b) Analysis
Ruegge was charged with and convicted of theft by receiv-
ing stolen property pursuant to § 28-517. Section 28-517
provides: “A person commits theft if he receives, retains, or
disposes of stolen movable property of another knowing that
it has been stolen, or believing that it has been stolen, unless
the property is received, retained, or disposed with intention to
restore it to the owner.”
At trial, the State presented the testimony of Vande Mheen
to establish that Ruegge was in possession of the generator/
welder and that he “disposed” of the generator/welder by
trading it to Vande Mheen for a snowmobile. Vande Mheen
testified that Ruegge brought the generator/welder to his home
and offered Vande Mheen the tool as part of a trade. Vande
Mheen accepted Ruegge’s offer and took possession of the
generator/welder.
The State also presented evidence to establish that Ruegge
knew the generator/welder was stolen at the time he traded
the tool to Vande Mheen. Vande Mheen testified that Ruegge
told him that he had previously purchased the generator/welder
to assist him in the repair of irrigation systems. Other evi-
dence suggested Ruegge’s statement to be untrue, because the
g
enerator/welder had belonged only to Scribner Grain prior to
being stolen. Additionally, Vande Mheen testified that Ruegge
told him to lie to police about where he had obtained the
g
enerator/welder. Ruegge told Vande Mheen to tell police that
he had gotten the tool in a load of iron. Such evidence suggests
that Ruegge knew the generator/welder was stolen and that he
did not want to get into trouble for trading the stolen property
to Vande Mheen.
The evidence presented by the State, if believed by the jury,
was sufficient to establish that Ruegge was guilty of theft by
receiving stolen property.
Decisions of the Nebraska Court of Appeals
STATE v. RUEGGE 255
Cite as 21 Neb. App. 249
On appeal, Ruegge argues that Vande Mheen’s testimony is
not credible and, as such, is insufficient to establish Ruegge’s
guilt beyond a reasonable doubt. Specifically, Ruegge argues,
“Vande Mheen is the only one that explains where he got the
property and blamed it on [Ruegge].” Brief for appellant at 11.
He goes on to assert that Vande Mheen’s “conflicts of interest
are overwhelming for him to blame someone else and get the
law enforcement off of his own back.” Id.
Ruegge’s arguments on appeal focus on the credibility of
Vande Mheen. However, the jury, as the fact finder, clearly
found Vande Mheen’s testimony to be credible, and we, as an
appellate court, do not pass on the credibility of witnesses.
See State v. France, supra. The jury convicted Ruegge of theft
by receiving stolen property based on the testimony of Vande
Mheen. And, as we discussed above, the jury was aware of
Ruegge’s belief that Vande Mheen was lying in order to ensure
that he was not also charged with a crime for being in posses-
sion of the stolen property.
Because the jury as the trier of fact could have found the
essential elements of theft by receiving stolen property beyond
a reasonable doubt based on Vande Mheen’s testimony, the
evidence was sufficient to support Ruegge’s conviction. The
district court did not err in overruling Ruegge’s motion for a
directed verdict, and Ruegge’s assertions to the contrary have
no merit.
2. P rosecutorial Misconduct
Ruegge alleges that he is entitled to a new trial based upon
prosecutorial misconduct which occurred during voir dire, dur-
ing the State’s opening statement, and during the State’s clos-
ing argument. Upon our review, we conclude that Ruegge’s
numerous assertions concerning prosecutorial misconduct are
without merit.
(a) Standard of Review
[2,3] Whether prosecutorial misconduct is prejudicial
depends largely on the facts of each case. State v. Faust, 269
Neb. 749, 696 N.W.2d 420 (2005). An appellate court reviews
a motion for new trial on the basis of prosecutorial misconduct
Decisions of the Nebraska Court of Appeals
256 21 NEBRASKA APPELLATE REPORTS
for an abuse of discretion by the trial court. State v. Castor,
257 Neb. 572, 599 N.W.2d 201 (1999).
(b) Voir Dire
Ruegge alleges that the State committed misconduct dur-
ing voir dire. Specifically, he alleges that the State commit-
ted misconduct when the prosecutor informed the jury that
as a prosecutor, it is his job to be impartial to the people of
Nebraska and the people of Holt County; when the prosecu-
tor referred to “‘Tri-County Bank’” as “‘Brewster’s Bank’”
(Steven Brewster was defense counsel during trial); when the
prosecutor asked jurors whether they had the “nerve to admit”
that they hate police officers; and when the prosecutor referred
to Scribner Grain as the “victim” in this case. Brief for appel-
lant at 13.
[4] A party may not raise alleged misconduct of adverse
counsel on appeal where, despite knowledge of the alleged
misconduct, the party claiming the misconduct failed to request
a mistrial and instead agreed to take his or her chance on a
favorable verdict. See State v. Anderson and Hochstein, 207
Neb. 51, 296 N.W.2d 440 (1980).
Despite Ruegge’s assertions on appeal that the State com-
mitted multiple instances of misconduct during voir dire, he
did not specifically object to any of the comments made by
the prosecutor during voir dire, nor did he make a motion
for a mistrial as a result of any of these instances. Because
Ruegge failed to object to the State’s conduct during voir dire
and failed to make a motion for a mistrial, we conclude that
Ruegge failed to preserve for appellate review his assertions
concerning the State’s misconduct during voir dire.
(c) Opening Statement
Ruegge alleges that the State committed misconduct during
its opening statement. Specifically, he alleges that the State
committed misconduct when the prosecutor discussed a line of
inquiry conducted by defense counsel during voir dire which
questioned the potential jurors’ opinions about the credibility
of witnesses who have been given immunity. Ruegge goes
on to allege that the prosecutor committed misconduct when
he told the jury during his opening statement that he was no
Decisions of the Nebraska Court of Appeals
STATE v. RUEGGE 257
Cite as 21 Neb. App. 249
longer planning on presenting the testimony of any witness
who had been given immunity.
During voir dire, defense counsel questioned each poten-
tial juror individually about his or her opinion concerning the
credibility of a witness who has been given immunity against
prosecution from certain crimes in exchange for his testimony.
Defense counsel initiated this conversation by explaining to the
jury pool:
Well, it’s always difficult because we don’t always know
for sure what the testimony and what the evidence will
be, but we think we know. And so what we’re trying to
do is make sure that given — anticipating what that might
be, that you feel comfortable that you can be fair and
impartial. And that’s what the real goal is here.
And so, the next topic that I want to talk about is an
idea called . . . immunity, meaning they won’t be pros-
ecuted for any crimes or certain crimes, maybe, that they
may have committed, in exchange for them testifying.
During defense counsel’s questioning of the potential
jurors, many of the members on the panel expressed some
discomfort in accepting or believing the testimony of some-
one who had been provided with immunity in exchange for
his testimony.
After the parties selected a jury, the prosecutor gave an
opening statement. During that statement, the prosecutor told
the jury:
Now, after listening to two hours about what you folks
think about lies and immunity, I’ve decided I won’t call
anybody that’s been given immunity. I don’t need it. If I
think I need it, I’ll call them and I’ll inform you if I put
on anybody that’s been granted any form of immunity
or not.
But because I felt that my witness had been somehow
diminished by the questioning and the ill informed —
At this point in the prosecutor’s opening statement, defense
counsel made an objection and asked to be heard by the court.
The parties and the trial judge then proceeded to have a dis-
cussion in the judge’s chambers and outside the presence of
the jury.
Decisions of the Nebraska Court of Appeals
258 21 NEBRASKA APPELLATE REPORTS
During the in-chambers discussion, defense counsel argued
that the prosecutor’s comments were “outside of the scope of
[an] opening statement.” Defense counsel believed that the
prosecutor was “making an argument rather than presenting
what the evidence will be.”
The court disagreed with defense counsel’s assertions. The
court stated:
Well, [the prosecutor is] explaining. You no doubt spent
a considerable amount of time dealing with [the wit-
ness who was given immunity] and his shortcomings,
and I think that the county attorney should be allowed
to address that in his opening statement, because he’s no
longer going to call him, and I think he’s entitled to tell
the jury why he’s not going to call him.
....
. . . I think [that during an opening statement] you
can tell what you’re not going to have, you can tell what
you’re going to have.
The court told defense counsel that the “[o]bjection’s noted”
and permitted the prosecutor to continue with his opening
statement. The prosecutor then informed the jury about the
witnesses he planned on calling to testify and about what he
believed the evidence would show.
[5] On appeal, Ruegge argues that the prosecutor commit-
ted misconduct during his opening statement by discussing the
potential witness who had been given immunity. However, at
trial, Ruegge did not argue that this discussion constituted mis-
conduct, nor did he request a mistrial as a result of the prosecu-
tor’s discussion. Instead, Ruegge objected on the basis that the
prosecutor’s comments were outside the scope of an opening
statement. On appeal, a defendant may not assert a different
ground for an objection than was offered to the trier of fact.
See State v. Muse, 15 Neb. App. 13, 721 N.W.2d 661 (2006).
Because Ruegge did not object to the prosecutor’s statements
on the basis of prosecutorial misconduct and because he did
not make a motion for a mistrial as a result of the prosecutor’s
statements, we conclude that he has waived appellate review
of this issue.
Decisions of the Nebraska Court of Appeals
STATE v. RUEGGE 259
Cite as 21 Neb. App. 249
However, to the extent that Ruegge suggests that the district
court erred in overruling his objection to the prosecutor’s com-
ments because the comments were not properly included in an
opening statement, we conclude that Ruegge’s assertion has
no merit.
[6] The Nebraska Supreme Court has previously held that
“one is allowed considerable latitude in making an opening
statement.” State v. Bradley, 236 Neb. 371, 401, 461 N.W.2d
524, 544 (1990). In this case, a majority of the prosecutor’s
opening statement was dedicated to telling the jury what evi-
dence would be presented during the trial. However, prior to
this recitation, the prosecutor informed the jury that he would
no longer be calling any witness who had been given immu-
nity. The prosecutor’s comments on this subject were clearly a
response to defense counsel’s thorough and detailed discussion
with the jury about the credibility of such witness testimony.
The prosecutor did not tell the jury anything about the wit-
ness in question, nor did he relay anything about what that
witness would have testified to if he had been called to the
stand. The prosecutor’s comments were not inappropriate or
outside the scope of an opening statement, and we do not find
that the district court erred in overruling Ruegge’s objection to
the comments.
(d) Closing Argument
Ruegge alleges that the State committed misconduct dur-
ing its closing argument. Specifically, he alleges that the
State committed misconduct when the prosecutor discussed
the “chaos and anarchy” that would result from the improper
use of the legal system, when the prosecutor informed the jury
that he represents “the people,” when the prosecutor discussed
a witness who did not testify at the trial, when the prosecutor
told the jury that defense counsel is using a “standard tactic”
in blaming someone else for the crime, when the prosecutor
accused defense counsel of “lying” during his closing argu-
ment, and when the prosecutor told the jurors to “do the right
thing” so that they are “fine” when they go home after the trial.
Brief for appellant at 15-17.
Decisions of the Nebraska Court of Appeals
260 21 NEBRASKA APPELLATE REPORTS
(i) Discussion of Witness Who
Did Not Testify at Trial
During the State’s closing argument, the prosecutor reiter-
ated the statements he made during his opening statement con-
cerning why he did not offer the testimony of any witness who
had been given immunity. The prosecutor stated:
Now, first of all, it was my intention to put on another
witness yesterday. But, after hearing all that talk from all
of the prospective jurors about how you would not give
credence to a person who had been granted immunity in
exchange for his testimony, I put that to one side. I’m
not going to belabor you with the testimony of a person
that you’ve already told me you won’t pay any atten-
tion to.
That runs contrary to my personal and professional
beliefs and experience. I’m in my 32nd or -3rd year of
doing this, and years and years and years ago, I developed
the concept or belief that it’s never wise to leave out a
witness, because the jury always wonders what that wit-
ness would have said.
But, I’m not going to put on a witness that’s already
been beaten up, bloodied, before we even get to trial,
when the very jurors have told me they won’t believe
him anyway. So I made a strategic decision yesterday to
cut [that witness] out of the witness list. I don’t like to
do that. But, you folks made your own bed there. You’re
not going to hear the details that [the witness] could have
provided us.
Therefore, just consider that your own responses
resulted in not listening to what [that witness] had to say.
Defense counsel did not object to the prosecutor’s statements
during the prosecutor’s closing argument. Instead, defense
counsel waited to object until after all of the closing arguments
had concluded, the court had read the jury its instructions, and
the case had been submitted to the jury. At that time, defense
counsel indicated to the court:
I would move for a mistrial based on the comments of
[the prosecutor] during the closing, suggesting that the
jury was the reason that we made the decision that [the
Decisions of the Nebraska Court of Appeals
STATE v. RUEGGE 261
Cite as 21 Neb. App. 249
witness who was given immunity] would not testify. I
believe that was really a misstatement of the situation.
The court overruled the motion for a mistrial. The court
indicated that the prosecutor was only explaining to the jury
his decision not to call a certain witness to testify. The court
also indicated its belief that the prosecutor’s comments were
directly tied to defense counsel’s discussion of immunity dur-
ing voir dire. Additionally, the court noted, “I also note that
[your motion is] probably not very timely.”
On appeal, Ruegge argues that the district court erred in
overruling the motion for a mistrial, because the prosecu-
tor’s comments during his closing constituted misconduct that
prejudiced Ruegge’s defense. Ruegge’s assertion has no merit,
because the motion for a mistrial was not timely made.
[7] An objection to the prosecutor’s argument made after
the jury has been instructed and has retired is untimely and for
that reason will not be reviewed on appeal. State v. Hernandez,
242 Neb. 78, 493 N.W.2d 181 (1992). Here, defense counsel
did not motion for a mistrial concerning the prosecutor’s state-
ments about the witness who was given immunity until after
all of the closing arguments, after the court instructed the jury,
and after the case had been submitted to the jury. The motion
was clearly untimely, and as such, we do not review Ruegge’s
assertions about the motion for a mistrial on appeal.
(ii) Reference to “Standard Defense”
in Blaming Someone Else
During the State’s rebuttal argument, the prosecutor stated,
“[Defense counsel], in his defense of . . . Ruegge, has taken
up the standard defense that I’ve seen throughout my career.
I label it transference. He’s transferred guilt from . . . Ruegge
to . . . Vande Mheen and wants you to buy into that.” After
the prosecutor made this statement, defense counsel asked the
court whether he “may . . . be heard.” Then, both defense coun-
sel and the prosecutor apparently approached the trial judge
and conversed about something. However, this discussion was
held off the record. As such, our record does not reflect what
the parties discussed. When the discussion was over, the court
noted, on the record, “Objection is overruled.”
Decisions of the Nebraska Court of Appeals
262 21 NEBRASKA APPELLATE REPORTS
[8] We can assume from the court’s statement that the
“[o]bjection is overruled” that defense counsel made an objec-
tion to something. However, based on the record presented to
us, we cannot, and do not, assume that defense counsel specifi-
cally objected to the prosecutor’s discussion about the “stan-
dard defense,” nor do we assume that defense counsel made a
motion for a mistrial as a result of this discussion. See State v.
Trackwell, 250 Neb. 46, 49, 547 N.W.2d 471, 474 (1996) (it is
“incumbent upon an appellant to present a record which sup-
ports the errors assigned”).
Because Ruegge’s objection to the prosecutor’s comments
was made and discussed off the record, we conclude that
Ruegge failed to preserve for appellate review his assertions
concerning the State’s misconduct in discussing Ruegge’s
“standard defense.”
(iii) Other Allegations of Prosecutorial
Misconduct During Closing Argument
Ruegge did not specifically object or make a motion for a
mistrial as a result of any of his remaining allegations of pros-
ecutorial misconduct during the State’s closing argument. As
we discussed above, because Ruegge did not properly object
or move for a mistrial, he has waived appellate review of these
allegations. See State v. Anderson and Hochstein, 207 Neb. 51,
296 N.W.2d 440 (1980).
3. Jury Instruction Amendment
Ruegge alleges that the district court erred in denying his
request to amend proposed jury instruction No. 8. Proposed
jury instruction No. 8 concerned the knowledge element of
theft by receiving stolen property as defined by § 28-517.
Upon our review, we conclude that Ruegge was not prejudiced
by the district court’s failure to amend jury instruction No. 8
and, as such, we conclude that this assignment of error has
no merit.
(a) Standard of Review
[9] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. State v. Almasaudi, 282 Neb. 162, 802 N.W.2d
110 (2011).
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(b) Analysis
The district court’s proposed jury instructions included the
following instruction, which was numbered “Instruction No. 8”
and which was entitled “State of Mind”: “Knowledge or belief
is an element of theft by receiving stolen property. In deciding
whether the defendant possessed such knowledge or belief you
should consider his words and acts and all of the surrounding
circumstances.” During the jury instruction conference held
after the parties had presented all of their evidence, Ruegge
requested that proposed instruction No. 8 be amended to
include the following language after the language of the origi-
nal, proposed instruction: “The knowledge that the property
has been stolen must be subjective knowledge, proved beyond
a reasonable doubt.”
The district court denied Ruegge’s request to amend pro-
posed jury instruction No. 8. Specifically, the court stated:
And I think that the instruction as written and as proposed
as state of mind requires that the — or instructs the jury
that knowledge or belief is an element, and then it tells
the jury in deciding whether the defendant possessed such
knowledge, they are to consider words, acts, et cetera.
I think that, by its very definition, makes it subjective
because they must determine that the defendant pos-
sessed or required the knowledge or belief. And so that
is subjective.
And so the wording that you want, I would consider
surplusage, and that . . . instruction is refused.
Instruction No. 8 was read to the jury as originally proposed
and with no amendment.
On appeal, Ruegge argues that the district court erred in
refusing to amend jury instruction No. 8 and that he was
prejudiced because, ultimately, “the jury was not given the
proper [i]nstruction when deciding this case.” Brief for appel-
lant at 19. In his brief, Ruegge appears to assert that the dis-
trict court should have included his proposed language in the
jury instruction to make clear to the jury that it must find that
Ruegge actually had knowledge that the generator/welder was
stolen property. We conclude that Ruegge’s assertion has no
merit, because the jury instruction actually provided to the jury
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264 21 NEBRASKA APPELLATE REPORTS
clearly indicates that the jury must find, from the evidence
presented, that Ruegge knew the property was stolen. As such,
Ruegge was not prejudiced by the court’s failure to amend jury
instruction No. 8.
[10] 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 the 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. Gangahar, 9
Neb. App. 205, 609 N.W.2d 690 (2000).
[11] As we stated above, Ruegge was charged with and
convicted of theft by receiving stolen property pursuant to
§ 28-517. Section 28-517 provides: “A person commits theft
if he receives, retains, or disposes of stolen movable property
of another knowing that it has been stolen, or believing that it
has been stolen, unless the property is received, retained, or
disposed with intention to restore it to the owner.” We agree
with Ruegge’s basic assertion that the term “knowing,” as used
in § 28-517, imposes a subjective standard of knowledge. See
State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).
Stated more simply, we agree with Ruegge that in order to
convict Ruegge of theft by receiving stolen property, the State
must have proven and the jury must have found that Ruegge
possessed actual knowledge that the generator/welder was sto-
len property or believed that the property was stolen. This
subjective standard of knowledge is in contrast to an objective
standard of knowledge, which requires only a showing that a
reasonable person in the defendant’s situation would or should
have known that the property was stolen. See id.
However, we also agree with the district court’s comments
at the jury instruction conference that proposed jury instruction
No. 8 clearly instructed the jury that it must find that Ruegge
possessed actual knowledge that the property was stolen in
order to convict him. We also agree with the court’s assertion
that Ruegge’s proposed amendment to instruction No. 8 was
unnecessary “surplusage.”
In jury instruction No. 8, as read to the jury, the district
court instructed the jury that it must find that “the defendant
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Cite as 21 Neb. App. 249
possessed [the requisite] knowledge” and that in making
that finding, the jury should consider the defendant’s own
“words and acts and all of the surrounding circumstances.”
As the district court indicated, this instruction, “by its very
definition,” instructed the jury that it must find that Ruegge
possessed a subjective knowledge that the property was sto-
len. As such, Ruegge’s proposed amendment, which would
have added only an explicit statement that the knowledge
required by § 28-517 was subjective in nature, was simply
not necessary.
Because the district court’s instruction to the jury regarding
the degree of knowledge Ruegge must have possessed to be
found guilty of theft by receiving stolen property was correct
and because Ruegge’s proposed amendment to that instruc-
tion would not have added anything substantive, we conclude
that the district court did not err in denying Ruegge’s request
to amend jury instruction No. 8. Ruegge cannot show that he
was prejudiced in any way by the court’s decision to deny his
request to amend the jury instruction.
4. Ineffective Assistance
of Trial Counsel
[12,13] Ruegge asserts that his trial counsel was ineffective
in a number of respects. 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 defend
ant must show that counsel’s performance was deficient and
that this deficient performance actually prejudiced his or her
defense. State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010).
The two-prong ineffective assistance of counsel test need not
be addressed in order. State v. Nesbitt, 279 Neb. 355, 777
N.W.2d 821 (2010).
[14,15] When considering whether trial counsel’s perform
ance was deficient, there is a strong presumption that counsel
acted reasonably. Id. Furthermore, trial counsel is afforded due
deference to formulate trial strategy and tactics. When review-
ing a claim of ineffective assistance of counsel, an appellate
court will not second-guess reasonable strategic decisions by
counsel. Id.
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266 21 NEBRASKA APPELLATE REPORTS
[16] A claim of ineffective assistance of counsel need not be
dismissed merely because it is made on direct appeal. State v.
Young, supra. The determining factor is whether the record is
sufficient to adequately review the question. Id.
Because Ruegge has different counsel in this appeal from
trial counsel, Ruegge can make a claim for ineffective assist
ance of trial counsel on direct appeal. See State v. York, 273
Neb. 660, 664, 731 N.W.2d 597, 602 (2007) (“where appellate
counsel is different from trial counsel, a defendant must raise
on direct appeal any issue of ineffective assistance of trial
counsel which is known to the defendant or is apparent from
the record, or the issue will be procedurally barred on postcon-
viction review”).
We now turn to Ruegge’s specific claims.
(a) Failure to Make Timely
Motion for Mistrial
Ruegge alleges that trial counsel was ineffective in failing
to make a timely motion for a mistrial after the prosecutor
committed misconduct during his closing argument by explain-
ing to the jury why he did not offer the testimony of any
witness who had been given immunity. Upon our review, we
conclude that Ruegge’s assertion has no merit. Ruegge can-
not show that he was prejudiced by counsel’s failure to make
a timely motion for a mistrial, because such a motion would
have been unsuccessful.
As we discussed more thoroughly above, during the pros-
ecutor’s closing argument, he commented to the jury that he
had decided not to offer the testimony of a particular witness
who had been given immunity. He went on to inform the jury
that the basis for his decision was the comments and concerns
voiced by many potential jurors during voir dire that they
would have a problem believing or accepting the testimony of
a witness who had been previously provided with immunity.
Defense counsel motioned for a mistrial as a result of the pros-
ecutor’s comments. However, the motion was made after the
case was submitted to the jury and, as we concluded above,
the motion was untimely and the issue was not preserved for
appellate review.
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Despite the untimeliness of counsel’s motion for a mistrial,
the district court did rule on the merits of the motion. The court
overruled the motion and stated:
I think what the [prosecutor] was referring to was the
fact that upon your inquiry of the panel, they had indi-
cated — most, if not all of them, had indicated that they
would discount or more intensely scrutinize the testimony
of someone that had been granted immunity. And he
was basically telling them because of their concerns, as
expressed pursuant to your questions on voir dire, that he
made a tactical decision not to call [that witness]. And I
think that’s what he was referring to when he spoke to the
. . . jury . . . .
We understand the district court’s comments to indicate its
finding that the prosecutor’s remarks were simply not improper
under the circumstances of this case. We agree with the district
court’s finding.
[17,18] Generally, in assessing allegations of prosecuto-
rial misconduct in closing arguments, a court first determines
whether the prosecutor’s remarks were improper. It is then nec-
essary to determine the extent to which the improper remarks
had a prejudicial effect on the defendant’s right to a fair trial.
State v. Balvin, 18 Neb. App. 690, 791 N.W.2d 352 (2010). A
mistrial is appropriate when an event occurs during the course
of a trial which is of such a nature that its damaging effects
would prevent a fair trial. Id.
In light of the thorough discussion of immunity held dur-
ing voir dire, we cannot say that the prosecutor’s comments to
the jury about why he did not call any witness who had been
given immunity were improper. Rather, it appears the prosecu-
tor was merely trying to provide the jury with an explanation
for the absence of such a witness. And, the prosecutor did not
discuss what that witness would have testified to had he been
called or provide any other extraneous, improper information
to the jury.
Moreover, even if we were to find that the prosecutor’s
comments were improper, it is difficult to imagine how the
comments prejudiced Ruegge in any way. And, we note that in
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268 21 NEBRASKA APPELLATE REPORTS
his brief on appeal, Ruegge does not articulate exactly why the
comments were prejudicial in nature.
We conclude that if counsel had made a timely motion for
a mistrial based on the prosecutor’s comments, such a motion
would not have been successful, because the comments were
not improper and did not prejudice Ruegge. As such, Ruegge
cannot demonstrate that he was prejudiced by counsel’s failure
to make a timely motion for a mistrial and this assertion of
ineffective assistance of counsel is without merit.
(b) Failure to Object to Alleged Instances
of Prosecutorial Misconduct
Ruegge alleges that trial counsel was also ineffective in
failing to object or make a motion for a mistrial as a result of
the other alleged instances of prosecutorial misconduct which
occurred during voir dire, the State’s opening statement, and
the State’s closing arguments. We have detailed Ruegge’s spe-
cific claims of prosecutorial misconduct in our analysis above.
We do not repeat each of his claims here, because, ultimately,
we conclude that our record is insufficient to review Ruegge’s
claims that his trial counsel was ineffective for failing to
object to each of these allegations of misconduct.
[19,20] The decision about whether to make an objection
during a trial has long been considered an aspect of trial
strategy. See State v. Huston, 285 Neb. 11, 824 N.W.2d 724
(2013). In fact, the Nebraska Supreme Court has previously
discussed the notion that a decision not to object could be
explained by trial counsel’s calculated strategy not to high-
light the objectionable material. See id. Because the decision
about whether to object is considered an aspect of trial strat-
egy, we must consider trial counsel’s strategy when reviewing
his failure to object to each instance of alleged prosecuto-
rial misconduct.
As we stated above, when reviewing claims of alleged inef-
fective assistance of counsel, trial counsel is afforded due
deference to formulate trial strategy and tactics. See State v.
Nesbitt, 279 Neb. 355, 777 N.W.2d 821 (2010). And, there
is a strong presumption that counsel acted reasonably, and
an appellate court will not second-guess reasonable strategic
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Cite as 21 Neb. App. 249
decisions. See id. Because of this deference, the question
whether the failure to object was part of counsel’s trial strategy
is essential to a resolution of Ruegge’s ineffective assistance of
counsel claims.
There is no evidence in the record that would allow us to
determine whether Ruegge’s trial counsel consciously chose
as part of a trial strategy not to object to the alleged instances
of prosecutorial misconduct identified on appeal. Therefore,
because the record is insufficient to adequately review Ruegge’s
claims of ineffective assistance of counsel, we do not reach
these claims on direct appeal.
(c) Waiver of Argument in Support
of Directed Verdict Motion
Ruegge alleges that counsel was ineffective in failing to
provide to the court any argument in support of his motion
for a directed verdict at the close of the State’s presentation
of evidence. We conclude that Ruegge’s assertion is without
merit, because he cannot show that he was prejudiced by coun-
sel’s actions.
Counsel did make a motion for a directed verdict on the
basis of “[l]ack of evidence.” However, when the court asked
counsel whether he wished to “point out where [he thought]
the evidence [was] lacking,” counsel indicated, “I’ll waive
. . . .” The district court then overruled the motion for a
directed verdict.
The standard for granting a motion for a directed verdict
is whether, after viewing all of the evidence in the light most
favorable to the State, any rational trier of fact could find the
essential elements of the crime beyond a reasonable doubt. See
State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009). And, as
we discussed more thoroughly above, the district court prop-
erly overruled counsel’s motion for a directed verdict, because
the evidence presented by the State, if believed by the jury,
was sufficient to establish that Ruegge was guilty of theft by
receiving stolen property. Accordingly, no matter what argu-
ment defense counsel would or could have provided to the
court in support of the motion for a directed verdict, his motion
would have failed. Ruegge was not prejudiced by his counsel’s
Decisions of the Nebraska Court of Appeals
270 21 NEBRASKA APPELLATE REPORTS
failure to offer any argument in support of the motion for a
directed verdict.
(d) Failure to Present Defense
Ruegge alleges that counsel was ineffective in failing
to preent any evidence in his defense. However, he does
s
not specify what evidence could have been presented in his
defense, nor does he indicate what witnesses could, or should,
have been called to testify in his defense. Moreover, he does
not allege what any additional evidence or testimony would
have shown or whether it would have altered the ultimate out-
come of the trial.
In order to prevail on an ineffective assistance of counsel
claim, a defendant must show that his or her counsel’s per-
formance was deficient and that he or she was prejudiced by
that deficient performance. State v. Thomas, 278 Neb. 248,
769 N.W.2d 357 (2009). Because Ruegge does not specifically
allege what other evidence or testimony could, or should, have
been presented in his defense at the trial, he cannot demon-
strate that he was prejudiced by his counsel’s failure to put on
a defense. As such, this assertion has no merit.
V. CONCLUSION
Upon our review, we affirm Ruegge’s conviction for theft
by receiving stolen property. We find that there was sufficient
evidence presented at trial to support his conviction and that
Ruegge’s assertions of error on appeal are without merit.
As to Ruegge’s claims of ineffective assistance of trial
counsel, we find that he was not denied effective assistance
of counsel when counsel failed to make a timely motion for
a mistrial during the State’s closing arguments, when counsel
waived making an argument in support of his motion for a
directed verdict, and when counsel failed to put on evidence
in Ruegge’s defense. We find that the record is insufficient to
review the remaining grounds for Ruegge’s ineffective assist
ance of counsel claim.
Affirmed.