State v. Vann

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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. VANN

Cite as 306 Neb. 91

State of Nebraska, appellee, v.

Abdul F. Vann, appellant.

___ N.W.2d ___

Filed June 12, 2020. No. S-18-928.

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. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A

defendant who moves for dismissal or a directed verdict at the close of

the evidence in the State’s case in chief in a criminal prosecution and

who, when the court overrules the dismissal or directed verdict motion,

proceeds with trial and introduces evidence, waives the appellate right

to challenge correctness in the trial court’s overruling the motion for

dismissal or a directed verdict but may still challenge the sufficiency of

the evidence.

3. Criminal Law: Evidence: Appeal and Error. When a criminal defend­

ant challenges the sufficiency of the evidence upon which a conviction

is based, 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.

4. Evidence: Waiver: Appeal and Error. A party who fails to make a

timely objection to evidence waives the right on appeal to assert preju-

dicial error concerning the evidence received without objection.

5. Convictions: Presumptions: Right to Counsel: Waiver: Proof.

Convictions obtained after Gideon v. Wainwright, 372 U.S. 335, 83 S.

Ct. 792, 9 L. Ed. 2d 799 (1963), are entitled to a presumption of regu-

larity such that records of conviction are admissible unless the defend­

ant can show that he or she did not have or waive counsel at the time

of conviction.

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Appeal from the District Court for Sarpy County: Stefanie

A. Martinez, Judge. Affirmed.

Thomas P. Strigenz, Sarpy County Public Defender, and

Mitchell Sell, Senior Certified Law Student, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R.

Vincent for appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and

Freudenberg, JJ.

Papik, J.

Abdul F. Vann appeals his conviction for possession of

a deadly weapon by a prohibited person. Vann argues that

his conviction should be overturned because the State did

not introduce evidence affirmatively showing that he had or

waived counsel at the time of his prior felony conviction.

We, however, find that there was sufficient evidence to sup-

port Vann’s conviction and that the district court did not err

in admitting into evidence certified court records showing that

Vann had counsel at the time he was sentenced for his prior

conviction, but was silent as to whether he had counsel at the

time he entered his plea. Finding no error, we affirm.

BACKGROUND

This case arises out of an incident in which a law enforce-

ment officer found a set of brass knuckles in Vann’s pocket

during a search. This led the State to bring charges against

Vann for possession of a deadly weapon by a prohibited person

and carrying a concealed weapon, among other charges.

To prove that Vann was a felon and therefore prohibited

from possessing a deadly weapon, the State offered docu-

mentary evidence that Vann was convicted of possession of

cocaine in the district court for Douglas County in 1992. In

particular, the State offered exhibit 7, a five-page court record

authenticated by the clerk of the district court for Douglas

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County. Exhibit 7 indicated that Vann was charged in that

court with possession of cocaine and that he appeared with

counsel for sentencing following a guilty plea. Nothing in

exhibit 7 expressly indicated that Vann was represented by

counsel at the time he entered his guilty plea or that he had

waived that right. When the State offered exhibit 7, Vann’s

counsel stated, “I have no objection to Exhibit 7 as an authen-

ticated, certified copy.” The district court received exhibit 7

into evidence.

At the conclusion of the State’s case, Vann moved to dis-

miss the charge of possession of a deadly weapon by a prohib-

ited person. Vann argued that exhibit 7 did not show that he

had or waived counsel at the time of his prior guilty plea and

was thus insufficient to establish that Vann was a prohibited

person under State v. Portsche, 258 Neb. 926, 606 N.W.2d 794

(2000). The district court denied Vann’s motion to dismiss.

Vann went on to introduce evidence of his own. After the con-

clusion of all evidence, Vann renewed his motion to dismiss on

the ground that the evidence was insufficient. The district court

overruled the motion.

The jury convicted Vann of both possession of a deadly

weapon by a prohibited person and possession of a concealed

weapon. Vann was sentenced to a term of imprisonment of 1

year for possession of a deadly weapon by a prohibited person

and 6 months for possession of a concealed weapon. The sen-

tences were ordered to be served concurrently to each other

and with a sentence for a conviction in North Dakota. After

Vann timely appealed, we moved the case to our docket. See

Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

ASSIGNMENTS OF ERROR

Vann assigns that the district court erred by (1) overruling

his motion to dismiss at the conclusion of the State’s case and

(2) finding that exhibit 7 was a valid prior conviction that

could be used to prove that he had previously been convicted

of a felony.

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STANDARD OF REVIEW

[1] When reviewing a criminal conviction for sufficiency of

the evidence to sustain the conviction, the relevant question

for an appellate court is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt. State v. Stubbendieck, 302 Neb.

702, 924 N.W.2d 711 (2019).

ANALYSIS

Vann’s assignments of error pertain only to his conviction

for possession of a deadly weapon by a prohibited person.

Both of his assignments of error challenge the State’s use of

exhibit 7 to prove that Vann had a prior felony conviction.

Vann argues that because exhibit 7 did not affirmatively show

that Vann had or waived counsel at the time of his guilty

plea in his prior case, his motion to dismiss should have been

granted and exhibit 7 should not have been admitted into evi-

dence. Though Vann’s assignments of error are similar, they

are analytically distinct and we thus consider them separately

in the sections below.

Sufficiency of Evidence.

[2] Vann’s first argument is that the district court erred

by denying the motion to dismiss he filed at the conclusion

of the State’s case. The record, however, shows that after

the State rested and Vann’s motion was denied, Vann put on

evidence of his own. Vann thereby waived the right to chal-

lenge the district court’s denial of his motion to dismiss. A

defendant who moves for dismissal or a directed verdict at the

close of the evidence in the State’s case in chief in a criminal

prosecution and who, when the court overrules the dismissal

or directed verdict motion, proceeds with trial and introduces

evidence, waives the appellate right to challenge correct-

ness in the trial court’s overruling the motion for dismissal

or a directed verdict but may still challenge the sufficiency

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of the evidence. State v. Briggs, 303 Neb. 352, 929 N.W.2d

65 (2019).

[3] Vann also asserts that the evidence was insufficient to

support his conviction. When a criminal defendant challenges

the sufficiency of the evidence upon which a conviction is

based, the relevant question for an appellate court is whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.

State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019). In

order to review whether there was sufficient evidence to sup-

port Vann’s conviction for possession of a deadly weapon by a

prohibited person, we must therefore first determine the essen-

tial elements of the offense.

To determine the elements of a crime, we look to the text

of the statute. State v. Mann, 302 Neb. 804, 925 N.W.2d 324

(2019). The statutory definition of possession of a deadly

weapon by a prohibited person in effect at the time of the

offense is set forth in Neb. Rev. Stat. § 28-1206 (Reissue

2016). It provides, in pertinent part, that a person commits

the offense if he or she “possesses a firearm, a knife, or brass

or iron knuckles” and “has previously been convicted of a

felony.” The statutory text thus sets forth two elements that the

State was required to prove in order to convict Vann: (1) that

he possessed a firearm, a knife, or brass or iron knuckles and

(2) that he had a previous felony conviction. See, also, State

v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999) (finding that

prior felony conviction is essential element of offense of felon

in possession of firearm).

Vann does not and could not dispute that there was suf-

ficient evidence of both of the elements listed above—there

was evidence that he possessed brass knuckles and that he

had a prior felony conviction. Instead, Vann argues that the

evidence to convict was insufficient because it did not show

that he had or waived counsel at the time of his prior convic-

tion. Vann argues that our opinion in State v. Portsche, 258

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Neb. 926, 606 N.W.2d 794 (2000), requires such evidence.

As we will explain below, however, Portsche did not recog-

nize any essential elements beyond those that appear in the

text of § 28-1206, and thus, an argument based on Portsche

is not properly framed as a challenge to the sufficiency of

the evidence.

In Portsche, the defendant was charged with being a felon

in possession of a firearm in violation of § 28-1206. At a

bench trial, the State offered records of a prior plea-based

conviction, but the district court found that the conviction

was not valid for purposes of § 28-1206 because the records

did not reflect that the defendant had an attorney or waived

his right to an attorney at the time of his plea. The district

court found the defendant not guilty of the charge, and the

State brought an error proceeding pursuant to Neb. Rev.

Stat. § 29-2315.01 (Reissue 1995). In the error proceeding,

the State argued that a prior uncounseled conviction could

establish that a defendant had “previously been convicted of

a felony” for purposes of § 28-1206.

We rejected the State’s argument in Portsche, citing a

prior felon in possession case, State v. Groves, 239 Neb. 660,

477 N.W.2d 789 (1991). In Groves, the defendant argued

that the trial court erred by allowing the admission of evi-

dence that he had a prior burglary conviction. The defendant

argued that evidence of his prior conviction should have

been excluded because the records failed to show that at

the time of his prior conviction, he had or waived counsel.

We noted we had previously held in the sentence enhance-

ment context that in order to prove a prior conviction, the

State was required to prove that, at the time of the convic-

tion, the defendant had or waived counsel. We determined

the State should be required to prove the same in order to

prove a prior conviction for purposes of § 28-1206. Notably,

the defendant in Groves did not frame his challenge as one

of insufficient evidence. Instead, he argued that evidence

of a prior conviction could not be admitted without proof

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that the defendant had or waived counsel at the time of the

prior conviction.

We understand Portsche to have adopted a rule pertain-

ing to the admissibility of evidence of prior convictions in

felon in possession prosecutions, as opposed to recognizing

additional essential elements under § 28-1206. We reach this

conclusion for several reasons. First, as we have noted, we

look to statutory language to determine the essential elements

of the offense, and no statutory language makes reference to

the role of counsel in a prior conviction. Second, we relied

upon Groves, which discussed the same rule in the context of

an evidence admissibility challenge. Third, we summarized

our holding in admissibility terms: “Before a prior felony

conviction can be used to prove that a defendant is a felon

in a felon in possession case, the State must prove either that

the prior felony conviction was counseled or that counsel was

waived.” State v. Portsche, 258 Neb. 926, 940, 606 N.W.2d

794, 803 (2000) (emphasis supplied). And finally, if Portsche

actually made the presence or waiver of counsel at the time of

a prior conviction an essential element of the offense, juries

could be placed in the position of deciding the legal question

of whether a defendant validly waived counsel.

We recognize that in State v. Watt, 285 Neb. 647, 832

N.W.2d 459 (2013), we briefly considered a sufficiency of the

evidence argument based on Portsche. To the extent this aspect

of Watt could be read to suggest that the State is required to

prove that a defendant charged with violating § 28-1206 had

or waived counsel at the time of a prior conviction as an

essential element of the crime, it is disapproved.

For the reasons we have explained, the only essential ele-

ments the State was required to prove to convict Vann were

that he possessed brass knuckles and that he was previously

convicted of a felony. Because a rational trier of fact could

have found both of these elements beyond a reasonable doubt,

his sufficiency of the evidence challenge fails.

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Admissibility of Exhibit 7.

[4] Vann’s other assignment of error is that the district court

erred by finding that exhibit 7 could be used to prove that he

had previously been convicted of a felony. We understand this

assignment of error to challenge the admissibility of exhibit

7. At the time exhibit 7 was offered, Vann did not object. We

have held that a party who fails to make a timely objection to

evidence waives the right on appeal to assert prejudicial error

concerning the evidence received without objection. See, e.g.,

State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).

At oral argument, Vann argued that the lack of a contempo-

raneous objection to exhibit 7 does not preclude reversal of his

conviction in this case because the admission of exhibit 7 was

plain error. Vann is, of course, correct that we can recognize

plain error even when evidence is received without a timely

objection. See, e.g., State v. Kuhl, 276 Neb. 497, 755 N.W.2d

389 (2008). As we will explain, however, we do not believe

the district court committed any error, let alone plain error, by

receiving exhibit 7.

In support of his argument that exhibit 7 should not have

been admitted, Vann relies primarily on Portsche. He points

to language in Portsche stating that where a record is silent

as to whether a defendant had or waived counsel at the time

of a prior conviction, courts may not presume that the defend­

ant had or waived counsel. This language from Portsche is

consistent with a line of cases from this court. Particularly

relevant to the facts of Vann’s appeal are cases within that

line of precedent, which hold that, even if there is evidence

a defendant had counsel at the time of sentencing for a prior

conviction, evidence of that conviction should not be consid-

ered in the absence of proof that the defendant also had or

waived counsel at the time of conviction. See, e.g., State v.

Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v. Thomas,

262 Neb. 985, 637 N.W.2d 632 (2002).

This line of cases appears to have begun with State v. Smith,

213 Neb. 446, 329 N.W.2d 564 (1983). In Smith, this court

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held that courts could not presume that a defendant’s prior con-

viction was obtained in compliance with the Sixth Amendment

right to counsel. We did so in reliance on the U.S. Supreme

Court’s opinion in Burgett v. Texas, 389 U.S. 109, 88 S. Ct.

258, 19 L. Ed. 2d 319 (1967).

In Burgett, the U.S. Supreme Court held that prosecutors

in a Texas case could not use records of a prior Tennessee

conviction when those records did not show that the defend­

ant had or waived counsel in the Tennessee case. The U.S.

Supreme Court held that it could not presume the defendant

had or waived counsel in the Tennessee proceedings. The

Court stated, “To permit a conviction obtained in violation of

Gideon v. Wainwright[, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed.

2d 799 (1963),] to be used against a person either to support

guilt or enhance punishment for another offense . . . is to erode

the principle of that case.” Burgett, 389 U.S. at 115.

After Smith, we continued to apply the principle we rec-

ognized in reliance on Burgett. See, e.g., State v. Orduna,

250 Neb. 602, 550 N.W.2d 356 (1996); State v. Ristau, 245

Neb. 52, 511 N.W.2d 83 (1994); State v. Nowicki, 239 Neb.

130, 474 N.W.2d 478 (1991). We were not alone among state

high courts in understanding Burgett to prohibit courts from

presuming that a prior conviction was obtained in compliance

with the Sixth Amendment. See, e.g., State v. Grenvik, 291 Or.

99, 628 P.2d 1195 (1981), overruled, State v. Probst, 339 Or.

612, 124 P.3d 1237 (2005); State v. Reagan, 103 Ariz. 287, 440

P.2d 907 (1968), overruled, State v. McCann, 200 Ariz. 27, 21

P.3d 845 (2001).

But while the principle Vann relies upon rests on a particu-

lar understanding of Burgett, a subsequent U.S. Supreme Court

decision indicated that Burgett should not be read so broadly.

In Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d

391 (1992), a federal habeas petitioner contended a Kentucky

sentencing enhancement procedure that presumed the validity

of prior convictions and required the defendant to show the

conviction was somehow invalid was unconstitutional. The

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U.S. Supreme Court disagreed, reasoning that the habeas peti-

tioner was collaterally attacking his prior convictions and that

under those circumstances, a “‘presumption of regularity’”

should attach to the prior convictions. Parke, 506 U.S. at 29.

In the course of the opinion, the Court found no merit to an

argument that Burgett would not permit a presumption that

the prior convictions were constitutionally valid. It explained

that at the time the prior conviction at issue in Burgett was

entered, state criminal defendants’ federal constitutional right

to counsel had not yet been recognized. Under those cir-

cumstances, the Parke Court said, it was not reasonable to

presume from a silent record that the prior conviction was

validly obtained.

After oral argument in this case, we asked the parties to

submit supplemental briefs addressing whether, in light of

Parke, the State or the defendant bears the burden of proving

that a prior conviction was or was not obtained in violation

of the Sixth Amendment right to counsel. Vann argued that

Parke does not call the principle first expressed in Smith into

question. The State argued that Parke rejected the broad read-

ing of Burgett upon which Smith and its progeny relied and

that a prior criminal conviction was entitled to a presumption

of regularity.

Having considered Parke and the parties’ arguments regard-

ing it, we do not believe we were correct to say that a court

can never presume that a defendant had or waived counsel

at the time of a prior conviction. Although the line of cases

beginning with Smith read Burgett to prohibit such a presump-

tion as a constitutional matter, Parke makes clear that reading

of Burgett was too broad and that Burgett does not speak to

prior convictions obtained after the recognition of a federal

constitutional right to counsel in state court in Gideon.

Not only do we believe it is not unconstitutional for a court

to extend a presumption of regularity to post-Gideon prior

convictions, we believe such a presumption is consistent with

the way our law generally treats final judgments in criminal

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cases. We have long held that judgments imposing sentences

in a criminal case are entitled to a presumption of regular-

ity and validity. See, e.g., Nicholson v. Sigler, 183 Neb. 24,

157 N.W.2d 872 (1968); Sedlacek v. Hann, 156 Neb. 340, 56

N.W.2d 138 (1952).

Furthermore, as a factual matter, we think it unlikely

that many modern convictions are obtained in violation of

a defend­ant’s Sixth Amendment rights. As other courts have

observed, the recognition of a constitutional right to counsel

in Gideon and the further recognition of that right in state stat-

utes or rules of criminal procedure, see, e.g., Neb. Rev. Stat.

§ 29-3903 (Cum. Supp. 2018), make it unlikely that defendants

are convicted without counsel or waiving the right thereto.

See, e.g., Com. v. Saunders, 435 Mass. 691, 761 N.E.2d 490

(2002); State v. McCann, 200 Ariz. 27, 21 P.3d 845 (2001);

State v. Glenn, No. 34790-3-II, 2007 WL 2379655 (Wash. App.

Aug. 21, 2007) (unpublished opinion listed at 140 Wash. App.

1014 (2007)). And even if a conviction is somehow obtained

in violation of Gideon, a defendant can successfully challenge

that conviction. Glenn, supra.

We are in no way breaking new ground by concluding that

Burgett does not prohibit courts from presuming that convic-

tions obtained after Gideon were obtained in compliance with

the Sixth Amendment. After Parke, many state and federal

courts have concluded that post-Gideon convictions are enti-

tled to a presumption of regularity, such that once the govern-

ment establishes the existence of a prior conviction, it becomes

the defendant’s burden to prove that he or she did not have

counsel and did not waive the right to counsel at the time of

conviction. See, e.g., U.S. v. Coppage, 772 F.3d 557 (8th Cir.

2014); U.S. v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. 2009);

U.S. v. Bush, 405 F.3d 909 (10th Cir. 2005); U.S. v. Cline, 362

F.3d 343 (6th Cir. 2004); U.S. v. Jones, 332 F.3d 688 (3d Cir.

2003); U.S. v. Gray, 177 F.3d 86 (1st Cir. 1999); State v. Von

Ferguson, 169 P.3d 423 (Utah 2007); Nicely v. Commonwealth,

25 Va. App. 579, 490 S.E.2d 281 (1997). Included among

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the state high courts that have adopted this position are those

that, like us, once understood Burgett to prohibit courts from

presuming that a prior conviction was obtained in compliance

with the Sixth Amendment. See, e.g., State v. Probst, 339 Or.

612, 124 P.3d 1237 (2005); State v. McCann, 200 Ariz. 27, 21

P.3d 845 (2001).

[5] Persuaded that this approach is correct, we overrule our

prior cases to the extent they hold that courts cannot presume

that the defendant had or waived counsel at the time of a prior

conviction. See, e.g., State v. Garcia, 281 Neb. 1, 792 N.W.2d

882 (2011); State v. King, 272 Neb. 638, 724 N.W.2d 80 (2006);

State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005); State v.

Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v. Thomas,

262 Neb. 985, 637 N.W.2d 632 (2002); State v. Nelson, 262

Neb. 896, 636 N.W.2d 620 (2001); State v. Portsche, 258

Neb. 926, 606 N.W.2d 794 (2000); State v. Orduna, 250 Neb.

602, 550 N.W.2d 356 (1996); State v. Ristau, 245 Neb. 52,

511 N.W.2d 83 (1994); State v. Reimers, 242 Neb. 704, 496

N.W.2d 518 (1993); State v. Nowicki, 239 Neb. 130, 474

N.W.2d 478 (1991); State v. Green, 238 Neb. 328, 470 N.W.2d

736 (1991); State v. Sherrod, 229 Neb. 128, 425 N.W.2d 616

(1988); State v. Foster, 224 Neb. 267, 398 N.W.2d 101 (1986);

State v. Huffman, 222 Neb. 512, 385 N.W.2d 85 (1986); State

v. Schaf, 218 Neb. 437, 355 N.W.2d 793 (1984); State v. Ellis,

216 Neb. 699, 345 N.W.2d 323 (1984); State v. Ziemba, 216

Neb. 612, 346 N.W.2d 208 (1984); State v. Smith, 213 Neb.

446, 329 N.W.2d 564 (1983). We hold that post-Gideon con-

victions are entitled to a presumption of regularity such that

records of conviction are admissible unless the defendant can

show that he or she did not have or waive counsel at the time

of conviction.

To be clear, our decision leaves untouched the central

holding of Portsche that the State may not rely upon a con-

viction obtained in violation of the Sixth Amendment in

order to establish a violation of § 28-1206. Only the lan-

guage in Portsche stating that a court cannot presume that a

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prior conviction was obtained in compliance with the Sixth

Amendment is disapproved.

Additionally, we note that even though this is a case in

which a prior conviction is an element of the offense, our deci-

sion today also overrules cases in which the State attempted to

rely on prior convictions to enhance a sentence. As mentioned

above, we have previously treated rules governing the con-

sideration of records of conviction when a prior conviction is

an element of the offense as equally applicable to attempts to

use a prior conviction to enhance a sentence. See, e.g., State

v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991). Like other

courts, we see no reason to treat the two situations differently

today. See, e.g., Probst, 339 Or. at 624, 124 P.3d at 1244 (col-

lecting cases in which courts “adopted the presumption of

regularity for prior convictions used to enhance sentences or

as elements of a crime”); State v. McCann, 200 Ariz. 27, 21

P.3d 845 (2001) (holding that presumption of regularity applies

to prior convictions regardless of whether they are used to

enhance sentence or to prove element of offense).

Turning to the facts of the present case, the application

of the foregoing principles is straightforward. Via exhibit 7,

the State demonstrated the existence of a prior conviction

obtained decades after the establishment of a federal constitu-

tional right to counsel, and Vann did not object to its admis-

sion. At that point, the conviction was entitled to a presump-

tion of regularity and Vann had the burden to show that he

did not have counsel at the time of the conviction and did not

waive the right to counsel. Vann, however, introduced no evi-

dence even suggesting as much. Accordingly, the district court

did not err in receiving exhibit 7.

Response to Concurring Opinion.

Prior to concluding, we write in response to the concurring

opinion’s assertion that, in this opinion, we have adopted “new

principles of appellate law.” It appears the concurring opin-

ion believes we have done so because of the circumstances

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under which we considered the State’s argument that the line

of cases that began with State v. Smith, 213 Neb. 446, 329

N.W.2d 564 (1983), rested on a misunderstanding of Burgett v.

Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967),

and should be overruled. As we will explain, however, the

result we reach today comes about through the application of

existing principles, not the establishment of new ones.

First, this opinion does not change our rule that generally

we do not consider issues raised for the first time on appeal.

As we recently explained, “[t]his is primarily so because a

trial court cannot commit error regarding an issue that was

never presented to it or submitted for its disposition.” State v.

Kruse, 303 Neb. 799, 811, 931 N.W.2d 148, 156 (2019). In that

same opinion, we said that “where the record adequately dem-

onstrates that the decision of a trial court is correct, although

such correctness is based on a ground or reason different

from that articulated by the trial court, an appellate court will

affirm.” Id. In the present case, we are not finding that the

trial court erred regarding an issue that was not presented to it.

Rather, we are affirming the decision of the trial court on an

alternate basis, a well-worn path in our jurisprudence.

There was also no reason for the State to raise the continu-

ing vitality of the Smith line of cases before the district court.

Not only was exhibit 7 received into evidence, Vann did not

object to its receipt. While we certainly understand that a

party generally must make objections to the actions of the trial

court to preserve subsequent appellate review, the admission of

exhibit 7 was not even a contested issue in the trial court, let

alone an issue to which the State would be expected to enter

an objection.

Neither do we believe our opinion establishes any new

principles regarding the raising of issues for the first time at

oral argument. We do not dispute that it is generally advis-

able for parties to raise issues on appeal before oral argu-

ment, but again, we have long recognized that appellate

courts may affirm a decision of a trial court where the record

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demonstrates it is correct, even if for a different reason than

that expressed by the trial court. Here, the State raised at oral

argument the continuing vitality of the line of cases beginning

with Smith; we gave the parties the opportunity to address the

issue in supplemental briefing; and ultimately, we determined

the trial court decision was correct, albeit for a reason not

expressed by the trial court judge.

Further, our own precedent indicates that we may con-

sider this issue on appeal even though the State did not

raise it in the trial court or until oral argument on appeal.

In Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806

N.W.2d 395 (2011), an employee in a workers’ compensation

matter argued for the first time on appeal that one of our prior

cases was wrongly decided. The employer asserted that the

employee waived the argument because she did not present

it to the workers’ compensation review panel. We rejected

the employer’s position, explaining that the employee did

not waive the argument because the review panel lacked the

power to overturn our precedent. In this case, the State obvi-

ously could not have asked the trial court to overrule any

of our cases. And, under the circumstances, neither do we

believe the omission of the issue from the State’s brief on

appeal can be considered a waiver. The State filed its brief

before we moved the case to our docket, when it was pending

before the Nebraska Court of Appeals. The Court of Appeals,

like the review panel in Bassinger, lacks the authority to

overrule our precedent.

We also disagree that this opinion makes any changes to our

plain error review standard. When we review an issue for plain

error, we will reverse only when an error is plainly evident

from the record and certain other requirements are met. See,

e.g., State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).

We applied that standard here, found no plain error, and there-

fore affirmed.

The concurrence does not say how it would resolve this

case under plain error review, but to the extent it suggests

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that we should have found that the receipt of exhibit 7 merely

did not rise to the level of plain error without reconsider-

ing any precedent, that course was not open to us here. Our

precedent held that it was plain error to presume that a prior

conviction was obtained in compliance with a defendant’s

Sixth Amendment rights. See, e.g., State v. Thomas, 262 Neb.

985, 637 N.W.2d 632 (2002). And to the extent the concur-

rence would have us refuse to reconsider whether something

we have held is plain error is actually error at all, that would,

rather strangely, allow a party to insulate shaky precedent

from review by declining to object at trial. We reviewed

for plain error because Vann did not object to the receipt of

exhibit 7. We do not understand why his failure to object

would preclude us from considering whether the precedent he

relied upon remains good law.

CONCLUSION

Because the district court did not err in receiving exhibit 7

and because there was sufficient evidence to support the chal-

lenged conviction under § 28-1206, we affirm.

Affirmed.

Heavican, C.J., not participating.

Miller-Lerman, J., concurring.

Regrettably, today the majority announces a wholly unforced

new chapter in Nebraska appellate jurisprudence. The major-

ity opinion establishes the following precedents:

•  The Nebraska Supreme Court will consider new arguments

made by any party for the first time at oral argument before

the Nebraska Supreme Court (i.e., parties are no longer

required to present or preserve a controlling issue earlier in

the appellate process or in the lower courts); and

•  “Plain error review” is now a vehicle for the Nebraska

Supreme Court for overruling precedent (i.e., the Nebraska

Supreme Court’s plain error review doctrine is no longer

limited to correcting errors committed by the trial court under

existing law plainly evident from the record).

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In my view, adoption of these new principles of appellate law

injects instability and diminishes confidence in Nebraska’s

appellate process.

Notwithstanding the foregoing, I agree that the Smith line of

precedents has become at odds with the progeny of Parke. So

applying the new substantive law announced today, I concur.