The opinion
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. BROWN
Cite as 317 Neb. 273
State of Nebraska, appellee, v.
Marcus Brown, appellant.
___ N.W.3d ___
Filed August 2, 2024. No. S-23-506.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence to
sustain the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
2. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, an appellate court
does not resolve conflicts in the evidence, pass on the credibility of wit-
nesses, or reweigh the evidence; such matters are for the finder of fact.
3. Sentences: Restitution: Appeal and Error. The rule that a sentence
will not be disturbed on appeal absent an abuse of discretion is applied
to the restitution portion of a criminal sentence just as it is to any other
part of the sentence; sentences within statutory limits will be disturbed
by an appellate court only if the sentence complained of was an abuse
of judicial discretion.
4. Sentences: Appeal and Error. A sentence that is contrary to the court’s
statutory authority is an appropriate matter for plain error review.
5. ____: ____. Whether a sentence is authorized by statute presents a ques-
tion of law, which an appellate court reviews de novo.
6. Effectiveness of Counsel: Proof: Appeal and Error. When reviewing
an ineffective assistance of counsel claim on direct appeal, the ques-
tion is whether the record affirmatively shows that the defendant’s trial
counsel’s performance was deficient and that the deficient performance
actually prejudiced the defendant’s defense.
7. Intent: Proof: Circumstantial Evidence. A defendant’s intent is a
question of fact that may be inferred from the circumstances surround-
ing the act.
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STATE V. BROWN
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8. Evidence: Proof. A fact may be proved by direct evidence alone, by
circumstantial evidence alone, or by a combination of the two.
9. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
10. Sentences: Legislature: Probation and Parole. Imprisonment and
probation are mutually exclusive sentencing alternatives, and the
Legislature has not authorized combining imprisonment and probation
in the same sentence.
11. Effectiveness of Counsel: Appeal and Error. An appellate court
resolves claims of ineffective assistance of counsel on direct appeal
only where the record is sufficient to conclusively determine whether
trial counsel did or did not provide effective assistance and whether the
defendant was or was not prejudiced by counsel’s alleged deficient per-
formance as matters of law.
12. ____: ____. An ineffective assistance of counsel claim will not be
addressed on direct appeal if it requires an evidentiary hearing.
13. Trial: Witnesses: Testimony. Witnesses’ bias affects the reliability of
their testimony at trial.
14. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during the course of a trial that is
of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
15. Motions for Mistrial. Decisions regarding motions for mistrial are
directed to the discretion of the trial court.
16. Motions for Mistrial: Appeal and Error. Error cannot ordinarily be
predicated on the failure to grant a mistrial if an objection or motion to
strike the improper material is sustained and the jury is admonished to
disregard such material.
17. Juror Misconduct: Proof. When an allegation of jury misconduct is
made and is supported by a showing which tends to prove that serious
misconduct occurred, the trial court should conduct an evidentiary hear-
ing to determine whether the alleged misconduct actually occurred.
18. Juror Misconduct: Trial. If jury misconduct occurred, the trial court
must determine whether it was prejudicial to the extent that the defend
ant was denied a fair trial.
19. Juror Misconduct: Appeal and Error. If the trial court determines that
jury misconduct did not occur or that it was not prejudicial, adequate
findings are to be made so that the determination may be reviewed.
20. Juror Misconduct: Words and Phrases. A jury commits serious mis-
conduct when it considers extraneous prejudicial information, which
means information existing or originating outside or beyond the evi-
dence presented at trial.
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317 Nebraska Reports
STATE V. BROWN
Cite as 317 Neb. 273
21. Juror Misconduct: Evidence. When a jury merely makes a more
critical examination of an exhibit that had been admitted into evidence,
without alteration or manipulation, a jury does not commit serious
misconduct.
Appeal from the District Court for Douglas County, Katie
L. Benson, Judge. Conviction affirmed, sentence vacated, and
cause remanded for resentencing.
Kenneth Jacobs and Tasia Matsuda, Senior Certified Law
Student, of Hugs and Jacobs, L.L.C., for appellant.
Michael T. Hilgers, Attorney General, Erin E. Tangeman,
and Emily Doll, Senior Certified Law Student, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
Marcus Brown appeals from his conviction and sentence
after a jury trial wherein he was found guilty of theft by
unlawful taking, 1 $5,000 or more, a Class IIA felony. 2 The
district court sentenced Brown to serve 90 days in the cus-
tody of Douglas County Correctional Services and “[a]fter
that” to serve a term of 3 years’ probation. 3 As a condition
of probation, the court ordered Brown to pay approximately
$11,000 in restitution to the victim of the theft within the
first year of probation. 4 We affirm Brown’s conviction and,
finding plain error, vacate his sentence and remand the cause
for resentencing.
1
See Neb. Rev. Stat. § 28-511(1) (Reissue 2016).
2
See Neb. Rev. Stat. § 28-518(1) (Reissue 2016). See, also, 2023 Neb.
Laws, L.B. 50, § 6.
3
Compare Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2022), with Neb. Rev.
Stat. § 29-2262 (Cum. Supp. 2022).
4
See § 29-2262(2)(r) and Neb. Rev. Stat. §§ 28-2280 to 28-2282 (Reissue
2016).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. BROWN
Cite as 317 Neb. 273
II. BACKGROUND
1. Pretrial
Brown was charged by information with a single count of
theft by unlawful taking, $5,000 or more, a Class IIA felony.
The record shows that approximately 1 month before trial,
Brown’s trial counsel moved for a 30-day continuance to
investigate a list of potential witnesses provided by Brown,
which list counsel stated he received from Brown 24 hours
beforehand. The court denied the motion to continue trial.
Relevant to his appeal, Brown asserts that he attempted to
provide his counsel with the list of witnesses months before
that hearing.
2. Trial Evidence
On January 23, 2022, Brown took two scissor lifts from
the Menards-owned distribution center in Valley, Nebraska.
Brown had previously worked as a contractor at the distribu-
tion center and other Menards locations. At trial, the fact that
Brown took the scissor lifts was not disputed. The factual
dispute at trial was whether Brown intended to deprive the
distribution center of the lifts or whether he borrowed them,
intending to return them after he completed a personal con-
struction project.
On January 27, 2022, an investigator in the security depart-
ment at Menards’ corporate office in Wisconsin was informed
by the “plant manager” at the distribution center of the miss-
ing scissor lifts. The investigator reviewed security surveil-
lance videos from January 23 that showed a man in a white
pickup truck, which was towing a trailer, drive up to a guard
shack. The man was later identified after the investigator sent
still photographs taken from surveillance footage to various
general managers at Menards retail stores in Nebraska. One of
the general managers recognized Brown’s vehicle, and Brown
was then identified as the owner.
The guard shack was located at the only entrance to and
exit from the distribution center. The guard stationed there
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STATE V. BROWN
Cite as 317 Neb. 273
testified that Brown had come “multiple times” before to take
the scissor lifts. The guard further testified that when Brown
pulled up to the guard shack on January 23, 2022, the guard
asked, “Are you here for the scissor lifts today? And he said,
Yes. And I told him, You already know where to go. You can
go back there and see if they are out of the shop.” The guard
testified that he believed that he remembered Brown telling
him that Brown was there to repair the lifts. Pursuant to the
proper procedures, the guard let Brown onto the premises
because Brown had a “contractor pass,” which did not require
the guard to log Brown’s presence on the site. Later, when
Brown left, the guard saw that the lifts were loaded onto
Brown’s trailer. Brown testified in his own behalf that the first
time he attempted to borrow the lifts, they were broken, and
that the second time, he could not find an employee to ask to
borrow them.
The videos also showed Brown loading up the two scissor
lifts at two separate locations within the distribution center
site. At one such location, the videos showed Brown speaking
to an employee at the distribution center. The employee testi-
fied that Brown said that “he had need of the scissor lift” and
that the employee “was enthusiastic” and “gung-ho to show
someone else how to start the scissor lift.” He walked Brown
to the scissor lift, showed Brown where the start button was,
and “ma[d]e sure” Brown knew how to drive it, before the
employee “closed the door behind [Brown].” The employee’s
“impression was that there was a contractor that needed some
of [Menards’] equipment to use to do a job on site, and with
the scissor lift being how it was with, the panel being faded,
[he] took it upon [him]self to show [Brown] how to start it.”
Brown testified in his own behalf that he asked this employee
if he could use the two scissor lifts and that the employee
gave him permission to take and use them.
Undisputedly, after it was recognized that the lifts were
missing from the distribution center, no one contacted Brown
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317 Nebraska Reports
STATE V. BROWN
Cite as 317 Neb. 273
concerning the lifts, even after the investigator learned Brown’s
identity. Instead, the investigator, based on what he had uncov-
ered, filed a report with the Valley Police Department, which
then relayed the information to the Keith County sheriff’s
office because Brown lived south of Ogallala, Nebraska. The
sheriff’s office obtained a search warrant and, on February 9,
2022, recovered one of the lifts at a construction site owned
by Brown, where Brown was building a carwash. The lift’s
vehicle identification number was confirmed, and the lift was
in full working condition. The lift was first taken to the sher-
iff’s office’s impound lot and later returned to the distribution
center. The lift was missing for a total of 17 days.
After the first lift was recovered, an arrest warrant was
issued for Brown. At that time, Brown was in North Carolina.
Upon his return to Nebraska and learning about the warrant,
Brown turned himself in. Menards requested the return of the
second lift, which Brown arranged. The record indicates that
the lift was returned in mid-March 2022.
Through the investigation, the Menards investigator learned
that Brown’s contracting business had serviced 28 different
Menards locations in different states, including the distribu-
tion center. The theory of Brown’s defense was that consistent
with his past practices with Menards, he borrowed the lifts
from the distribution center to complete a task on the carwash
construction and intended to return the lifts upon the project’s
completion. While the lifts were in his possession, Brown
was waiting for a delivery of materials from Menards, which
appeared to have been delayed.
Substantial evidence was adduced by both parties that in
practice, contractors were often allowed to use and did use
Menards’ equipment, even occasionally offsite, without for-
mal permission or documentation. However, Menards’ internal
corporate policy did not permit contractors to use Menards’
equipment. No evidence was adduced that suggested Brown
could have been aware of this policy.
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317 Nebraska Reports
STATE V. BROWN
Cite as 317 Neb. 273
At the close of the State’s case in chief, the defense moved
for a directed verdict, contending that the State had failed to
prove that Brown intended to deprive Menards of the two scis-
sor lifts. The court denied the motion, agreeing with the State
that because no one was informed that the lifts were being
taken offsite and because Brown did not return them before
law enforcement’s involvement, the jury could reasonably infer
that Brown had the requisite intent.
Ultimately, the jury found Brown guilty of theft by unlawful
taking of both lifts, in the amount of $16,500, which the jury
found in its verdict to be the value of the lifts. At the sentenc-
ing hearing, defense counsel indicated that “[i]n talking with
[the jurors] afterwards, I understand their thought process and
their inability to get over the fact that [Brown] had [the lifts] in
his possession, for a couple of months,” which was the reason
they found Brown guilty.
3. Jury Deliberations
After the jury commenced deliberations, the court went back
on the record and stated the following:
During deliberations, while my bailiff brought lunch
in, one of the jurors initially told her that they believed
Exhibit 1 did not pertain to this case, and they believed
that it was a video from something else. I then advised
my bailiff to go back in and to have them write on a note
that same statement, which they did. I then called both
parties and advised them of the issue.
And how we agreed to resolve this together was that
my bailiff would go retrieve Exhibit No. 1, and defense,
as well as the State, would together view that [video] to
ensure it was what they believed it to be, and that was a
surveillance video from a Menards in North Platte.
The parties did that, they did review Exhibit 1, and
they both agree that Exhibit 1, the DVD, is what it is sup-
posed to be. [And the parties confirmed their agreement
on the record.]
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STATE V. BROWN
Cite as 317 Neb. 273
....
So[,] after the parties reviewed that and they both
acknowledged that Exhibit 1 is what it’s supposed to be,
the parties then brought up, maybe there was something
on the laptop that’s in the jury room that might not be
part of this case. We all agreed to [bring] the laptop back
to the courtroom. This laptop was provided by the Court
Administrator. I thought it was a clean laptop.
Upon [re]view, it appears there are some things on
there. So[,] we are going to have Mr. Hanson, with the
Court Administrator, come up.
Mike Hanson testified that a video, which was likely from
a prior jury trial, was saved onto the laptop. In addition, he
testified that the computer application Microsoft Paint (Paint)
was installed on the laptop. The record suggests that Paint was
running when the laptop was retrieved from the jury, and pos-
sibly running even earlier. The record does not contain details
about what occurred in the jury room other than those below.
After Hanson’s testimony, the court stated, “So[,] the Court
will note that the laptop provided to the jury is now out
with the parties. It is not with [the jury]. Neither side asked
for a mistrial, and I also don’t think it’s appropriate at this
juncture.” The court informed the parties that it planned to
admonish and instruct the jury to disregard “any inadvertent
videos” not applicable to Brown’s case and “any use of any
programming” on the laptop. Both parties agreed to proceed
in the manner proposed by the court.
After the jury was brought back into the courtroom, the
court stated the following:
[A]s to any videos that you watched that were not from
a Menards, because those are the only videos at issue
here, you are ordered to not consider those as part of
your deliberations, which I doubt you have. But I just
wanted to make sure that the 12 of you knew that those
were not relevant to this case, and you should not have
seen them.
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STATE V. BROWN
Cite as 317 Neb. 273
Also, when we viewed the laptop, we noted that there
was a program being used, and it appeared to be zoom-
ing in maybe on [Brown’s] truck. And that is part of this
case, as we’re all aware, it’s a big part that was talked
about, but I told you before deliberations that the laptop
didn’t have any Internet. It also is not supposed to have
any programming, because you are only to rely upon the
evidence and the exhibits given to you.
So[,] you can only look at those still photos that were
marked as exhibits and the surveillance as it’s going. You
cannot manipulate it or use any programming to enhance
anything, because if either party wanted to do that, they
could have. So[,] you — Because if the defendant is
found guilty or if he’s found not guilty, the parties would
never have known maybe if you relied on that to reach
your verdict, and we need to make sure that the ver-
dict is solely based on the evidence that was offered in
this case.
....
With that being said, we are going to allow you to
continue with your deliberations, but I do, again, order
you not to consider any video that does not apply to this
case, and I also order you to not consider any enhance-
ment or any other programming that the jurors used in
this case to arrive at your decision.
4. Sentencing
Relevant on appeal are the court’s sentencing pronounce-
ment, written sentencing order, and order of probation.
The court’s sentencing pronouncement was as follows:
The sentence in this case is[:] I am going to remand
[Brown] to the custody of the Douglas County Correctional
Facility for a term of 90 days. I will give [Brown] credit
for [3] days. After that, [Brown] will serve a term of [3]
years of probation upon release. During that sentence or
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STATE V. BROWN
Cite as 317 Neb. 273
during that probation term, [Brown] will be ordered to
pay the amount of $11,164.52 for probation, within the
first year of probation. I am assuming that will come
out of your settlement. And I am also going to order that
you serve [10] hours of community service every month
while you’re on probation.
The court’s sentencing order provided the following:
IT IS THEREFORE ORDERED, ADJUDGED[,] AND
DECREED that it is the judgment and sentence of the
Court that [Brown] shall serve [90] days with Douglas
County Correctional Services with credit for [3] days.
IT IS ALSO ORDERED that [Brown] shall serve [3]
years on traditional probation.
The court also entered an order of probation, which
“ADJUDGED that [Brown] shall serve 3 years on Traditional
Supervision Probation.” The probation order reflected two
“special conditions”: that Brown (1) “pay $11,164.52 in resti-
tution within the first year of probation” and (2) “complete 10
hours of community service during the entirety of probation.”
(Emphasis omitted.)
After oral argument, we ordered the parties to submit supple-
mental briefs addressing whether the district court’s sentence
that Brown serve 90 days in the custody of Douglas County
Correctional Services followed by 3 years’ probation conforms
to law and, if not, whether it constitutes plain error. We have
considered these briefs in the resolution of this appeal.
III. ASSIGNMENTS OF ERROR
Brown assigns, reordered and restated, that (1) the evidence
presented at trial was insufficient to support a guilty verdict,
(2) the court abused its discretion in ordering monetary resti-
tution without a showing of direct financial loss, and (3) his
trial counsel was ineffective to the extent counsel failed to
object to the trial court’s order of monetary restitution. Brown
also assigns that his trial counsel was ineffective by failing
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STATE V. BROWN
Cite as 317 Neb. 273
to properly (4) investigate and question the Menards corpo-
rate investigator concerning the witness’ bias, (5) investigate
and contact witnesses identified by Brown, and (6) request a
mistrial after it was revealed that the jury was able to view
evidence not related to the case and manipulated evidence
while in deliberations.
IV. STANDARD OF REVIEW
[1,2] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. 5 In reviewing a criminal convic-
tion for a sufficiency of the evidence claim, an appellate court
does not resolve conflicts in the evidence, pass on the cred-
ibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact. 6
[3-5] The rule that a sentence will not be disturbed on
appeal absent an abuse of discretion is applied to the restitu-
tion portion of a criminal sentence just as it is to any other
part of the sentence; sentences within statutory limits will
be disturbed by an appellate court only if the sentence com-
plained of was an abuse of judicial discretion. 7 A sentence that
is contrary to the court’s statutory authority is an appropriate
5
State v. Allen, 314 Neb. 663, 992 N.W.2d 712 (2023), modified on denial
of rehearing 315 Neb. 255, 995 N.W.2d 446, and cert. denied ___ U.S.
___, 144 S. Ct. 1070, 218 L. Ed. 2d 248 (2024). See, State v. Myers, 258
Neb. 300, 603 N.W.2d 378 (1999); State v. Pierce, 248 Neb. 536, 537
N.W.2d 323 (1995); State v. Huffman, 214 Neb. 429, 334 N.W.2d 3 (1983).
6
See State v. Clark, 315 Neb. 736, 1 N.W.3d 487 (2024). See, also, Clark v.
State, 151 Neb. 348, 37 N.W.2d 601 (1949); Palmer v. The People, 4 Neb.
68 (1875).
7
State v. Street, 306 Neb. 380, 945 N.W.2d 450 (2020).
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matter for plain error review. 8 Whether a sentence is autho-
rized by statute presents a question of law, which we review
de novo. 9
[6] When reviewing an ineffective assistance of counsel
claim on direct appeal, the question is whether the record
affirmatively shows that the defendant’s trial counsel’s
performance was deficient and that the deficient performance
actually prejudiced the defendant’s defense. 10
V. ANALYSIS
1. Sufficiency of Evidence
Brown was convicted of theft by unlawful taking, which is
committed when a person “takes, or exercises control over,
movable property of another with the intent to deprive him
or her thereof.” 11 On appeal, Brown argues that the evidence
was insufficient to prove the essential element of the offense
that he had the requisite “intent to deprive” contemplated in
§ 28-511(1). Under Neb. Rev. Stat. § 28-509(1) (Reissue 2016):
Deprive shall mean:
(a) To withhold property of another permanently or for
so extended a period as to appropriate a major portion of
its economic value, or with intent to restore only upon
payment of reward or other compensation; or
(b) To dispose of the property of another so as to cre-
ate a substantial risk that the owner will not recover it in
the condition it was when the actor obtained it.
8
State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022). See, e.g., State v.
Street, supra note 7; State v. Esch, 290 Neb. 88, 858 N.W.2d 219 (2015);
State v. Campbell, 247 Neb. 517, 527 N.W.2d 868 (1995); State v. Kelly,
235 Neb. 997, 458 N.W.2d 255 (1990). See, also, e.g., U.S. v. Geddes, 71
F.4th 1206 (10th Cir. 2023); U.S. v. Penn, 969 F.3d 450 (5th Cir. 2020);
U.S. v. Lachowski, 405 F.3d 696 (8th Cir. 2005).
9
State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).
10
State v. Esch, 315 Neb. 482, 997 N.W.2d 569 (2023). See, also, Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
11
§ 28-511(1). See State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).
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At trial, the State’s theory of the case and argument to the
jury relied on the first clause of § 28-509(1)(a), that Brown
intended to withhold the scissor lifts permanently.
Brown contends that no evidence was adduced that sup-
ports the State’s position that the amount of time the lifts
were in Brown’s possession showed he intended to withhold
the lifts permanently. In support, Brown points out the lack
of damage to the lifts while they were in his possession and
the fact that the lifts were returned in the same condition, the
common practice of contractors’ borrowing equipment from
Menards and Brown’s past history of doing so, and that he
did not attempt to “obliterate” the lifts’ vehicle identification
numbers, hide the lifts from the public, or sell the lifts to any
other individual. 12
Conversely, the State identifies evidence that showed the
lifts were not returned until after Menards’ investigation con-
cluded and criminal charges were filed, as well as the absence
of evidence that Brown would have otherwise returned the
lifts. In addition, the State notes that no one at the distribution
center knew Brown or how to contact him and that the man-
ner in which Brown took the lifts off the property suggests his
intent to deprive.
[7,8] A defendant’s intent is a question of fact 13 that may
be inferred from the circumstances surrounding the act. 14 A
fact may be proved by direct evidence alone, by circumstantial
12
Brief for appellant at 21.
13
Acklie v. Nebraska Dept. of Rev., 313 Neb. 28, 982 N.W.2d 228 (2022);
State v. Ayres, 236 Neb. 824, 464 N.W.2d 316 (1991). See, State v. Scott,
284 Neb. 703, 824 N.W.2d 668 (2012); State v. Hernandez, 242 Neb. 78,
493 N.W.2d 181 (1992).
14
See, State v. Stanko, 304 Neb. 675, 936 N.W.2d 353 (2019); State v.
Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011). See, also, State v.
Mills, 199 Neb. 295, 258 N.W.2d 628 (1977); State v. Jungclaus, 176 Neb.
641, 126 N.W.2d 858 (1964); State v. Brown, 174 Neb. 393, 118 N.W.2d
332 (1962); Young v. State, 127 Neb. 719, 256 N.W. 908 (1934).
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evidence alone, or by a combination of the two. 15 Here, the
jury was instructed in accordance with NJI2d Crim. 5.1, that
“[i]n deciding whether [Brown] acted with intent [the jury]
should consider his words and acts and all the surrounding
circumstances.”
Significant evidence of the circumstances surrounding
Brown’s taking of the lifts was adduced at trial. For example,
as the State argued at trial, when Brown took the lifts, he did
not obtain any formal permission to do so, nor did he ensure
that the distribution center knew how to contact him. On the
other hand, as Brown argued at trial and maintains on appeal,
there was also evidence presented that Brown lacked the req-
uisite intent to deprive the distribution center of the lifts, and
these issues were a result of Brown’s carelessness, absent-
mindedness, or poor judgment. But his intent in taking the
lifts was a question of fact for the jury to decide.
An appellate court does not resolve conflicts in the evi-
dence, pass on the credibility of witnesses, or reweigh the
evidence; such matters are for the finder of fact. 16 The jury
was made aware of all the circumstances surrounding Brown’s
taking of the lifts, and from those circumstances, it inferred
his intent. When viewing the evidence in the light most favor-
able to the prosecution, a rational trier of fact could have
found that Brown had the essential intent to deprive the distri-
bution center of the lifts beyond a reasonable doubt. 17 Hence,
sufficient evidence was adduced at trial to sustain Brown’s
conviction.
2. Sentencing
Brown next argues that the court’s restitution order is not
supported by evidence in the record and that the order was
15
State v. Buol, 314 Neb. 976, 994 N.W.2d 98 (2023); NJI2d Crim. 5.1.
16
See State v. Clark, supra note 6. See, also, Clark v. State, supra note 6;
Palmer v. The People, supra note 6.
17
See State v. Allen, supra note 5. See, State v. Myers, supra note 5; State v.
Pierce, supra note 5; State v. Huffman, supra note 5.
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made without statutory authority. 18 In addition, Brown assigns
that his trial counsel provided ineffective assistance to the
extent that his trial counsel failed to object to the ordered
restitution. 19
[9] However, we need not consider these assignments
because we notice plain error in the district court’s sentencing.
Plain error is error plainly evident from the record and of such
a nature that to leave it uncorrected would result in damage to
the integrity, reputation, or fairness of the judicial process. 20
A sentence that is contrary to the court’s statutory authority is
an appropriate matter for plain error review. 21
The Legislature has provided that when sentencing a con-
victed offender for a felony other than a Class III, IIIA, or IV
felony, “the court shall fix the minimum and the maximum
terms of the sentence to be served within the limits provided
by law.” 22 “The minimum term fixed by the court shall be
any term of years less than the maximum term imposed by
the court [or the] minimum limit provided by law.” 23 This
18
See §§ 29-2281 and 29-2282 and Neb. Rev. Stat. § 29-2287 (Reissue
2016). See, also, State v. Street, supra note 7; State v. Ramirez, 285 Neb.
203, 825 N.W.2d 801 (2013); State v. Holecek, 260 Neb. 976, 621 N.W.2d
100 (2000); State v. McLain, 238 Neb. 225, 469 N.W.2d 539 (1991); State
v. Cabrera-Lomeli, No. A-01-059, 2002 WL 171322 (Neb. App. Feb. 5,
2002) (not designated for permanent publication). Cf. Hester v. U.S., ___
U.S. ___, 139 S. Ct. 509, 202 L. Ed. 2d 627 (2019).
19
But cf., State v. Roth, supra note 8; State v. Street, supra note 7; State v.
Esch, supra note 8; State v. Campbell, supra note 8; State v. Kelly, supra
note 8.
20
Castillo v. Libert Land Holdings 4, 316 Neb. 287, 4 N.W.3d 377 (2024);
State v. Brennauer, 314 Neb. 782, 993 N.W.2d 305 (2023).
21
State v. Roth, supra note 8. See, e.g., State v. Street, supra note 7; State v.
Esch, supra note 8; State v. Campbell, supra note 8; State v. Kelly, supra
note 8. See, also, e.g., U.S. v. Geddes, supra note 8; U.S. v. Penn, supra
note 8; U.S. v. Lachowski, supra note 8.
22
Neb. Rev. Stat. § 29-2204(1) (Reissue 2016).
23
Id. See, e.g., State v. Starks, supra note 9; State v. Thompson, 301 Neb.
472, 919 N.W.2d 122 (2018).
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language obligates a district court to impose indeterminate
sentences for such convictions. 24 A sentencing court articulates
an indeterminate sentence by setting forth a minimum and
maximum term or a range of time for which a defendant is
to be incarcerated, whereas a determinate sentence is a single
term of years. 25 Furthermore, indeterminate sentences are not
subject to post-release supervision. 26
On the other hand, in sentencing an offender to probation,
“[t]he court may, as a condition of a sentence of probation,
require the offender . . . [t]o be confined periodically in the
county jail . . . .” 27 We have recognized that this statute autho-
rizes a sentencing court to order “a predetermined, periodic
service of a definite term of jail time” as a condition of proba-
tion. 28 When such jail time is imposed as a condition of pro-
bation, “the court shall advise the offender on the record the
time the offender will serve in jail,” assuming no good time is
lost and no jail time is waived. 29 Furthermore:
Jail time may only be imposed as a condition of probation
. . . if:
(a) The court would otherwise sentence the defendant
to a term of imprisonment instead of probation; and
(b) The court makes a finding on the record that,
while probation is appropriate, periodic confinement in
the county jail as a condition of probation is neces-
sary because a sentence of probation without a period
of confinement would depreciate the seriousness of the
offender’s crime or promote disrespect for law. 30
24
See, e.g., State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
25
See, e.g., id.
26
See § 28-105.
27
§ 29-2262(2).
28
State v. Kantaras, 294 Neb. 960, 970, 885 N.W.2d 558, 566 (2016). See
State v. Salyers, 239 Neb. 1002, 480 N.W.2d 173 (1992).
29
§ 29-2262(3). See Neb. Rev. Stat. § 47-503(2) (Reissue 2021).
30
§ 29-2262(4).
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[10] We have long recognized that imprisonment and pro-
bation are mutually exclusive sentencing alternatives, and the
Legislature has not authorized combining a sentence of impris-
onment and a sentence of probation within the same sen-
tence. 31 At least it has not done so for a Class IIA felony such
as the one Brown was convicted.
In reviewing the court’s pronouncement and its written sen-
tencing order considering these statutory requirements and our
case law, we notice plain error. Although the record reflects
that the district court sought to craft an appropriate sentence,
the sentence imposed did not meet the requirements of either
an indeterminate sentence of imprisonment or a sentence of
probation. The sentence imposed is a determinate sentence of
90 days in county jail followed by a term of 3 years’ probation,
which is not statutorily authorized for Brown’s conviction of a
Class IIA felony. 32 In essence, the sentence operates as a deter-
minate sentence followed by a period of post-release supervi-
sion, but such a sentence is authorized for only Class III, IIIA,
or IV felonies, not Class IIA felonies. 33
Therefore, we vacate Brown’s sentence and remand the
cause for resentencing. 34 In light of this disposition, because
the restitution order was a part of Brown’s sentence, 35 we need
not address Brown’s assignments of error pertaining to the
restitution order on appeal.
31
See, State v. Kantaras, supra note 28; State v. Nuss, 190 Neb. 755, 212
N.W.2d 565 (1973).
32
See, also, State v. Starks, supra note 9; State v. Guzman, 305 Neb. 376,
940 N.W.2d 552 (2020); State v. Thompson, supra note 23; State v.
Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
33
See Neb. Rev. Stat. § 29-2204.02 (Reissue 2016). See, also, State v.
Fernando, 32 Neb. App. 289, 996 N.W.2d 630 (2023); State v. Wells, 28
Neb. App. 118, 940 N.W.2d 847 (2020).
34
See State v. Kantaras, supra note 28. See, also, State v. Roth, supra note 8.
35
See, e.g., State v. Street, supra note 7; State v. Duran, 224 Neb. 774, 401
N.W.2d 482 (1987). See, also, State v. Clapper, 273 Neb. 750, 732 N.W.2d
657 (2007).
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3. Ineffective Assistance of Counsel
[11,12] As mentioned above, when reviewing an ineffective
assistance of counsel claim on direct appeal, the question is
whether the record affirmatively shows that the defendant’s
trial counsel’s performance was deficient and that the deficient
performance actually prejudiced the defendant’s defense. 36 An
appellate court resolves claims of ineffective assistance of
counsel on direct appeal only where the record is sufficient
to conclusively determine whether trial counsel did or did not
provide effective assistance and whether the defendant was or
was not prejudiced by counsel’s alleged deficient performance
as matters of law. 37 An ineffective assistance of counsel claim
will not be addressed on direct appeal if it requires an eviden-
tiary hearing. 38
In reviewing an ineffective assistance of counsel claim on
direct appeal, a court may examine performance and prejudice
in any order and need not examine both prongs if a defendant
fails to demonstrate either. 39 To show deficient performance,
the defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in
criminal law. 40 To show prejudice, the defendant must demon-
strate a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been
different. 41 A reasonable probability is a probability sufficient
to undermine confidence in the outcome. 42 Ultimately, the
36
State v. Esch, supra note 10. See, also, Strickland v. Washington, supra
note 10.
37
State v. Esch, supra note 10.
38
Id.
39
See id.
40
Id.
41
Id.
42
Id.
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Constitution guarantees criminal defendants only a fair trial
and a competent attorney. 43
(a) Impeach Lead Witness’ Bias
Brown assigns that his trial counsel was ineffective in fail-
ing to impeach the State’s lead witness. Brown asserts on
appeal that Menards filed a civil suit against him at some
point before trial and that the Menards corporate investigator
would be a witness against Brown in the civil suit. Although
the record suggests a settlement in Brown’s favor was reached
before sentencing, the details of that suit are not in the appel-
late record. Brown contends that his trial counsel’s failure to
question the investigator regarding any bias the investigator
may have had constituted ineffective assistance.
First, the State argues that Brown’s assignment is twofold
and that he assigns his counsel was ineffective in failing to
properly (1) investigate the lead witness and (2) question the
lead witness. Applying its bifurcated reading, the State con-
tends that merely assigning trial counsel’s failure to “properly
investigate . . . the lead witness” 44 is insufficiently specific.
Assignments of error on direct appeal regarding ineffective
assistance of trial counsel must specifically allege deficient
performance, and an appellate court will not scour the remain-
der of the brief in search of such specificity. 45
We reject the State’s bifurcated reading of Brown’s assign-
ment of error. Reading the assignment, and without needing
to scour Brown’s brief, his use of the term “investigate” is
directly connected to his counsel’s failure to “question” the
witness’ bias at trial. All the more, Brown precisely assigned
that his counsel’s failure to “properly investigate and ques-
tion the lead witness” pertained to the witness’ bias related
to “a civil lawsuit filed by Menards against [Brown],” which,
43
Id. See Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d 783
(1982).
44
Brief for appellee at 25.
45
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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notably, resulted in a settlement payment to Brown. The assign-
ment of error is sufficiently specific. 46
[13] The State also argues that the record refutes any bias
against Brown by the lead witness. It asserts that because
the civil suit was not filed until after the lead witness’ inves-
tigation of the theft, he could not have been biased against
Brown. However, witnesses’ bias affects the reliability of their
testimony at trial. 47 At the time of trial, the civil suit was at
issue and could have influenced the lead witness’ testimony.
Accordingly, we find no merit in the State’s argument.
However, as the State concedes, the extent of any poten-
tial bias of the lead witness is unclear because the particular
details surrounding the civil suit are not in the record. Thus,
the record is insufficient to consider this claim of ineffective
assistance of counsel on direct appeal.
(b) Other Defense Witnesses
Brown also assigns that his counsel was ineffective for
failing to properly investigate and contact other potential wit-
nesses identified by Brown. As the State acknowledges, the
record is insufficient to review this claim on direct appeal.
(c) Request Mistrial Due to Jury Misconduct
Brown assigns that his trial counsel was ineffective in fail-
ing to move for a mistrial after it was revealed that the jury
viewed evidence unrelated to his case and used the computer
application Paint to manipulate the evidence adduced. To the
46
See, State v. Miranda, 313 Neb. 358, 362, 984 N.W.2d 261, 268 (2023)
(concluding “‘failing to meaningfully participate in voir dire’” sufficient,
whereas “‘failing to zealously advocate’” insufficient); State v. Wood,
310 Neb. 391, 414, 966 N.W.2d 825, 846 (2021) (concluding “‘Failing to
Investigate the Case Fully’” insufficient); State v. Mrza, supra note 45,
302 Neb. at 935, 926 N.W.2d at 86 (concluding failing to “‘adequately
investigate [defendant’s] defenses and effectively cross-examine
witnesses’” insufficient).
47
Cf. Neb. Rev. Stat. § 27-408 (Reissue 2016).
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extent that this assignment is reviewable on the appellate
record, it is without merit.
[14-16] A mistrial is properly granted in a criminal case
where an event occurs during the course of a trial that is of
such a nature that its damaging effect cannot be removed by
proper admonition or instruction to the jury and thus prevents
a fair trial. 48 Decisions regarding motions for mistrial are
directed to the discretion of the trial court. 49 When attempt-
ing to prove error predicated on the failure to grant a mistrial,
the defendant must prove the alleged error actually prejudiced
him or her, rather than creating only the possibility of preju-
dice. 50 Error cannot ordinarily be predicated on the failure
to grant a mistrial if an objection or motion to strike the
improper material is sustained and the jury is admonished to
disregard such material. 51
[17-19] When an allegation of jury misconduct is made and
is supported by a showing which tends to prove that serious
misconduct occurred, the trial court should conduct an evi-
dentiary hearing to determine whether the alleged misconduct
actually occurred. 52 If it occurred, the trial court must then
determine whether it was prejudicial to the extent that the
defendant was denied a fair trial. 53 If the trial court determines
that the misconduct did not occur or that it was not prejudicial,
adequate findings are to be made so that the determination
may be reviewed. 54
48
State v. Esch, supra note 10.
49
Id.
50
Id.
51
Id.
52
State v. Hairston, 298 Neb. 251, 904 N.W.2d 1 (2017); State v. Anderson,
252 Neb. 675, 564 N.W.2d 581 (1997); State v. Steinmark, 201 Neb. 200,
266 N.W.2d 751 (1978).
53
Id.
54
Id.
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As a threshold issue, we note that the record is not fully
developed as to the extent and scope of the jury’s conduct.
However, insofar as the jury merely magnified an admitted
image of Brown’s truck, we find no merit to Brown’s conten-
tion that his trial counsel was ineffective for failing to move
for a mistrial.
[20,21] A jury commits serious misconduct when it consid-
ers extraneous prejudicial information, which means informa-
tion existing or originating outside or beyond the evidence
presented at trial. 55 However, when a jury merely makes a
more critical examination of an exhibit that had been admitted
into evidence, without alteration or manipulation, a jury does
not commit serious misconduct. 56
The record indicates that the jury used Paint to magnify an
image of Brown’s truck that had been admitted into evidence.
But nothing in the record suggests the jury altered, manipu-
lated, or augmented the fixed content of the surveillance
video in any manner that would constitute serious misconduct
and amount to the creation of evidence extraneous to what
had been received into evidence. 57 While we do not endorse
the use of computer programs by juries to conduct their own
forensic analysis of the evidence in jury deliberations or
deem it proper, the record here does not suggest that the jury
engaged in serious misconduct.
In addition, although Brown’s trial counsel did not move
for a mistrial, the district court expressly considered whether
a mistrial was appropriate. In its discretion, it did not think
that it was. Nothing in the record suggests the court abused its
discretion in reaching its conclusion.
Moreover, the court admonished and instructed the jurors
to disregard their use of Paint and the irrelevant video exhibit
from another case. It is presumed that a jury followed the
55
See State v. Hairston, supra note 52.
56
Id.
57
See id.
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instructions given in arriving at its verdict, and unless it affirm
atively appears to the contrary, it cannot be said that such
instructions were disregarded. 58
Because the record is devoid of any showing to the contrary,
we find no merit to Brown’s assignment that his trial counsel
was ineffective in failing to move for a mistrial.
VI. CONCLUSION
We affirm Brown’s conviction of theft by unlawful taking.
However, we notice plain error in his sentence. Hence, we
vacate his sentence and remand the cause for resentencing.
Conviction affirmed, sentence vacated,
and cause remanded for resentencing.
58
State v. Esch, supra note 10.