State v. Alford

State of NebraSka , appellaNt aNd croSS-appellee , v.
M ario d. alford, appellee aNd croSS-appellaNt.
774 N.W.2d 394
Filed November 6, 2009. 	No. S-08-1040.
1. Sentences: Appeal and Error. When the State appeals and claims that a sentence
imposed on a defendant is excessively lenient, the standard of review is whether
the sentencing court abused its discretion in the sentence imposed.
2. Sentences. Whether a defendant is entitled to credit for time served is a question
of law.
3. Jury Instructions. Whether a jury instruction given by a trial court is correct is
a question of law.
4. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
5. Statutes. Statutory language is to be given its plain and ordinary meaning.
6. ____. It is not within the province of the courts to read a meaning into a statute
that is not there or to read anything direct and plain out of a statute.
7. Sentences: Words and Phrases. A sentence which is less than that demanded by
law is, by definition, “excessively lenient.”
8. Pretrial Procedure: Appeal and Error. Trial courts have broad discretion with
respect to sanctions involving discovery procedures, and their rulings thereon will
not be reversed in the absence of an abuse of discretion.
9. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
10. Pretrial Procedure: Evidence: Prosecuting Attorneys. Whether a prosecutor’s
late disclosure of evidence results in prejudice depends on whether the informa-
tion sought is material to the preparation of the defense, meaning that there is a
strong indication that such information will play an important role in uncovering
admissible evidence, aiding preparation of witnesses, corroborating testimony, or
assisting impeachment or rebuttal.
11. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
12. ____: ____: ____. 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 war-
ranted by the evidence, and (3) the appellant was prejudiced by the court’s refusal
to give the tendered instruction.
13. Jury Instructions: Appeal and Error. It is not error for the trial court to refuse
to give a defendant’s requested instruction where the substance of the requested
instruction was covered in the instructions given.
14. Lesser-Included Offenses: Jury Instructions: Evidence. A court must instruct
on a lesser-included offense if (1) the elements of the lesser offense are such
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www.nebraska.gov/apps-courts-epub/
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that one cannot commit the greater offense without simultaneously committing
the lesser offense and (2) the evidence produces a rational basis for acquit-
ting the defendant of the greater offense and convicting the defendant of the
lesser offense.
15. Rules of Evidence: Rules of the Supreme Court: Hearsay. Hearsay is not
admissible except as provided by the rules of evidence or by other rules adopted
by the statutes of the State of Nebraska or by the discovery rules of the Nebraska
Supreme Court.
16. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal
case, a motion for new trial is addressed to the discretion of the trial court, and
unless an abuse of discretion is shown, the trial court’s determination will not
be disturbed.
17. 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 elements of the crime beyond a reasonable doubt. In making
this determination, the court should not resolve conflicts in the evidence, pass on
the credibility of the witnesses, or reweigh the evidence, as these matters are for
the finder of fact.
18. Prior Convictions: Proof. In a proceeding to enhance a punishment because of
prior convictions, the State has the burden of proving such prior convictions by a
preponderance of the evidence.
19. Sentences: Prior Convictions: Right to Counsel: Waiver: Proof. When using
a prior conviction to enhance a sentence, the State must prove the defendant was
represented by counsel at the time of conviction and sentencing, or had know-
ingly and voluntarily waived representation for those proceedings.
20. Prior Convictions: Records: Proof. The existence of a prior conviction and the
identity of the accused as the person convicted may be shown by any competent
evidence, including the oral testimony of the accused and duly authenticated
records maintained by the courts or penal and custodial authorities.
21. Prior Convictions: Proof. There is no requirement—for purposes of enhance-
ment—that a judge’s signature appear on a judgment of conviction.
22. Sentences: Appeal and Error. Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in considering and applying
the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed.
23. Sentences: Probation and Parole. Whether probation or incarceration is ordered
is a choice within the discretion of the trial court, whose judgment denying pro-
bation will be upheld in the absence of an abuse of discretion.
Appeal from the District Court for Sarpy County: david k.
arterburN, Judge. Affirmed in part, and in part reversed and
remanded with directions.
STATe v. AlForD 	819
Cite as 278 Neb. 818

Tricia Freeman, Chief Deputy Sarpy County Attorney, for
appellant.
Thomas p. Strigenz, Sarpy County public Defender, for
appellee.
Wright, coNNolly, gerrard, StephaN, MccorMack, and
M iller-lerMaN, JJ.
MccorMack, J.
I. NATUre oF CASe
Mario D. Alford was involved in a fight with fellow inmate
Anthony lukowski at the Sarpy County jail while await-
ing trial for first degree murder. Alford was charged and
convicted of assault by a confined person and with being a
habitual criminal. In imposing Alford’s sentence, the court
gave Alford credit for the time served while simultaneously
awaiting trial on both the first degree murder and the assault
charges. Neb. rev. Stat. § 28-932(2) (reissue 2008) provides
that a sentence for assault of a confined person “shall not
include any credit for time spent in custody prior to sentenc-
ing unless the time in custody is solely related to the [assault
charge].” Citing to this provision, as well as to Alford’s crimi-
nal history, the State seeks reversal of this credit for time
served as giving Alford an “excessively lenient” sentence
under Neb. rev. Stat. § 29-2320 (reissue 2008). Alford also
timely appeals.1
II. FACTS
1. evideNce of coNfiNeMeNt
In support of the charge of assault by a confined person, the
prosecution offered certified copies of the trial docket for the
first degree murder charge for which Alford was in custody at
the time of the assault. The documents demonstrated that after
an initial hearing on the complaint, Alford was held without
bond. Several entries reference Alford’s being in the custody of
the “SCSo,” which we understand to mean the Sarpy County
sheriff’s office. In particular, an entry dated December 13,
1 See State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).
820 	278 NebrASkA reporTS

2007, states, “[Alford] is remanded into the custody of the
SCSo pending further hearing.” The judge’s minutes continue
through May 30, 2008, without a final disposition of the felony
charge. In the exhibit for the jury, the State redacted all refer-
ences to the nature of the charge.
2. teStiMoNy about aSSault
Deputies lloyd Schoolfield and David Weaver testified as
witnesses to the assault. on the morning of February 10, 2008,
Schoolfield was supervising the serving of the breakfast trays
and the inmates of the Sarpy County jail were eating breakfast
in their day areas. Alford and lukowski were inmates in the
same unit. Schoolfield had already served Alford’s unit and was
serving another unit nearby when he heard a noise. Schoolfield
proceeded to where Alford and lukowski were housed, and,
through a window, he observed Alford and lukowski locked in
a fighting embrace.
Waiting for assistance to break up the fight, Schoolfield
testified that he watched Alford free a hand and start “throw-
ing punches to the head of lukowski.” When Weaver arrived
to assist, the two deputies entered the unit and Schoolfield
supervised the lockdown of the inmates not participating in
the fight. by this time, Alford and lukowski had fallen to the
floor. Alford was underneath lukowski with his arms around
lukowski’s neck, holding lukowski in a headlock to his chest.
Weaver observed that lukowski’s arms were free, but that he
did not hit Alford.
Alford continued to hold lukowski in this manner even
after Weaver approached and ordered him to let lukowski go.
Weaver repeated the order while applying the “mandibular
angle pressure point.” The first time Weaver did this, Alford
winced, but did not let lukowski go. After the second time,
Alford released lukowski.
When Alford and lukowski got up, Schoolfield and Weaver
observed that lukowski had a bloody nose. Schoolfield tes-
tified that he had observed lukowski’s face when they had
delivered the breakfast trays and that he had not observed
any injuries before the fight occurred. Alford, in contrast,
did not appear to be injured after the fight, and Alford told
STATe v. AlForD 	821
Cite as 278 Neb. 818

Schoolfield that he was not injured. lukowski was sent to the
jail’s nurse.
only one of the inmates in Alford’s unit agreed to describe
for Schoolfield the events leading up to the fight. Schoolfield
testified that the inmate was no longer in the Sarpy County
jail. Defense counsel believed that the inmate’s description of
the fight was favorable to Alford’s defense. but when defense
counsel asked Schoolfield what the inmate had said, the court
sustained the State’s hearsay objection. Defense counsel made
an offer of proof that Schoolfield would testify that Alford had
accused lukowski of cheating in a poker game the night before
and that, in response, lukowski attacked Alford and began hit-
ting him.
At trial, lukowski testified that he had begun the physical
altercation with Alford. lukowski testified that on the morn-
ing of February 10, 2008, Alford was “running his mouth,” so
lukowski told Alford to “stand up and shut up or do something
about it.” lukowski testified that Alford then came toward him
and that he felt threatened, so he swung at Alford, but missed.
lukowski testified that Alford did not immediately respond and
that lukowski started choking Alford. lukowski testified that
when Schoolfield arrived, he and Alford were facing each other
and that lukowski had one arm around Alford’s upper back
and neck and the other arm around his waist. Alford had both
his hands around lukowski’s back. After that, Alford “broke
my hands loose from around his neck and hit me in the face a
few times and threw me to the ground and put me in a headlock
and [the fight] got broke up by Deputy Weaver.”
on cross-examination, lukowski elaborated that he had also
“head-butt[ed]” Alford a couple of times in the course of the
fight. Furthermore, lukowski stated that while Alford had him
in a headlock on the floor, lukowski was “still trying to get at
his throat . . . I was still trying to choke him out.”
lukowski testified that he received injuries, including a
bloody nose and a black eye, as a result of being struck in the
face by Alford. In a photograph taken of lukowski after the
fight, he appears to have a black eye and a bruised nose.
The court received, without objection, a statement made
by lukowski shortly after the incident. In that statement,
822 	278 NebrASkA reporTS

lukowski did not mention choking Alford at all. lukowski’s
statement 	described 	that Alford 	“rushed” 	toward 	him. 	In
response, lukowski swung at Alford, but missed. lukowski
stated that Alford “took advantage and I was hit in the eye, and
nose and was taken to the floor and seconds later 2 officer’s
[sic] broke up the fight.”
referring to the statement, the prosecutor asked lukowski
when he had decided he had more to add. lukowski answered
that it was just 2 days prior to trial. The prosecutor also asked
to whom lukowski had given this additional information,
and lukowski answered that he had only told Alford’s coun-
sel. Upon further questioning, lukowski confirmed that he
had never shared this additional information with anyone at
the jail.
3. SeNteNce
The jury found Alford guilty of assault by a confined person.
The court found that Alford was a habitual criminal and sen-
tenced Alford to a term of imprisonment from 10 to 36 years.
The court granted Alford credit for the 223 days spent in incar-
ceration awaiting disposition of the assault charge. This incar-
ceration had taken place simultaneously to time spent awaiting
trial for the first degree murder charge.
III. ASSIGNMeNTS oF error
The State asserts that the trial court erred by granting
Alford credit for time served in pretrial and presentence
incarceration.
Alford assigns that the trial court erred in (1) denying his
motion in limine, (2) not giving his proposed jury instructions
and giving jury instructions that were misleading and confus-
ing, (3) entering judgment pursuant to a jury verdict that was
based on insufficient evidence, (4) denying his motion for new
trial, (5) finding he was a habitual criminal, and (6) ordering
an excessive sentence.
IV. STANDArD oF reVIeW
[1] When the State appeals and claims that a sentence
imposed on a defendant is excessively lenient, the standard of
STATe v. AlForD 	823
Cite as 278 Neb. 818

review is whether the sentencing court abused its discretion in
the sentence imposed.2
[2] Whether a defendant is entitled to credit for time served
is a question of law.3
[3] Whether a jury instruction given by a trial court is cor-
rect is a question of law.4
[4] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below.5
V. ANAlYSIS
1. credit for tiMe Served
[5,6] because the jail time Alford served awaiting trial on a
charge of assault by a confined person was simultaneous with
jail time being served awaiting trial for first degree murder,
the time was not “solely related” to the assault charge and the
trial court lacked statutory authority under § 28-932(2) to give
Alford credit for that time. Statutory language is to be given its
plain and ordinary meaning.6 It is not within the province of
the courts to read a meaning into a statute that is not there or
to read anything direct and plain out of a statute.7 And we find
the language of § 28-932(2) to be clear.
Section 28-932(2) provides that a sentence for assault by a
confined person “shall not include any credit for time spent in
custody prior to sentencing unless the time in custody is solely
related to the offense for which the sentence is being imposed
[for assault of a confined person].” “[T]ime spent in cus-
tody,” by its plain language, is broad and does not distinguish
2 State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990), disapproved
on other grounds, State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83
(1991).
3 See State v. Harker, 8 Neb. App. 663, 600 N.W.2d 488 (1999).
4 State v. Brown, 258 Neb. 346, 603 N.W.2d 456 (1999).
5 State v. Moore, 277 Neb. 111, 759 N.W.2d 698 (2009).
6 State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
7 State v. Stafford, ante p. 109, 767 N.W.2d 507 (2009).
824 	278 NebrASkA reporTS

between time spent awaiting conviction for the nonrelated
charge and time spent as part of the sentence after conviction
of the other charge. In other words, it encompasses both “jail
time” and “prison time.”8 logically, if the time spent “in cus-
tody” awaiting trial on a charge of assault by a confined person
is simultaneous to time spent awaiting trial on another charge,
that time is not “solely related” to the charge of assault by a
confined person. Without the charge for assault by a confined
person, the defendant would still have been in custody.
In this case, no matter what the surrounding facts or cir-
cumstances that might justify lenity in his sentence for assault
by a confined person, the judge’s order granting Alford credit
for time served was unauthorized. Section 28-932 employs the
mandatory language that the sentence “shall not” include such
a credit, and as a general rule, the use of the word “shall” is
considered to indicate a mandatory directive, inconsistent with
the idea of discretion.9
2. JuriSdictioN
but we must consider whether such an unauthorized sen-
tence falls under § 29-2320, which provides that we may
reverse a sentence found to be “excessively lenient.” The
question arises because absent specific statutory authoriza-
tion, the State, as a general rule, has no right to appeal an
adverse ruling in a criminal case.10 Section 29-2320 allows
the State to appeal a sentence in a felony conviction when
the prosecutor “reasonably believes, based on all of the facts
and circumstances of the particular case, that the sentence is
excessively lenient.”
[7] As already discussed, the court violated § 28-932 by giv-
ing Alford credit for time served while awaiting separate trials
on a first degree murder charge and on the unrelated assault
by a confined person charge. In effect, the court imposed a
sentence that was less than that demanded by law. We conclude
8 See State v. Fisher, 218 Neb. 479, 356 N.W.2d 880 (1984).
9 State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008); Bazar v. Department
of Motor Vehicles, 17 Neb. App. 910, 774 N.W.2d 433 (2009).
10 See State v. Hense, supra note 9.
STATe v. AlForD 	825
Cite as 278 Neb. 818

that a sentence which is less than that demanded by law is, by
definition, “excessively lenient.”11
We note that in appeals brought under § 29-2320, it has
always been a fundamental part of our abuse of discretion
standard of review to ensure that the sentence was imposed
in accordance with those laws that limit the trial court’s
sentencing discretion. When an appellate court is reviewing
a sentence for its leniency, a sentence imposed by a district
court that is within the statutorily prescribed limits will not
be disturbed on appeal unless there appears to be an abuse of
the trial court’s discretion.12 It is not only a proper, but a nec-
essary, part of our review for excessive leniency that we first
consider whether the sentence conforms to the mandates of the
sentencing statutes.
Accordingly, in State v. Hamik,13 in considering whether
the defendant’s sentence was excessively lenient, we first
considered the State’s argument that the defendant’s sen-
tence of probation for first degree sexual assault violated the
mandatory minimum term provided by law. only after we
had concluded that the sentence was within the statutorily
prescribed limits did we consider the State’s argument that
even if lawful, the circumstances of the case demanded a
harsher punishment.
We observe that in a different context, we said that “[s]ection
29-2320 does not extend to the appeal of a sentence that is
not in conformity with the law.”14 To the extent we suggested
that § 29-2320 does not encompass appeals by a prosecutor
who argues a sentence is excessively lenient because it falls
below statutory sentencing parameters, we disapprove of this
statement. We hold that for purposes of § 29-2320, a sentence
that falls below the prescribed sentencing limits is simply an
example of leniency. We find merit to the State’s appeal, and
in accordance with the authority granted by Neb. rev. Stat.
11 See § 29-2320.
12 State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008).
13 State v. Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001).
14 Glantz v. Hopkins, 261 Neb. 495, 500, 624 N.W.2d 9, 13 (2001).
826 	278 NebrASkA reporTS

§ 29-2322 (reissue 2008), we remand the cause with directions
to vacate the credit for time served.
3. alford’S appeal
For the following reasons, we find no merit to Alford’s
appeal.
(a) Timeliness of evidence of Confinement
Alford asserts that the trial court erred in allowing evidence
relevant to Alford’s confinement. The court overruled Alford’s
motion in limine, renewed during trial, alleging the documents
were untimely provided during the discovery process and that
they were more prejudicial than probative. Alford did not
receive a copy of these documents until the morning of the
hearing on the assault charge. However, the trial court ruled
that there was no surprise to Alford because the documents
were public records created in the separate first degree murder
case involving Alford and the same defense counsel.
[8,9] Trial courts have broad discretion with respect to sanc-
tions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion.15
An abuse of discretion occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evi-
dence.16 We find no abuse of discretion in this case.
We conclude that the trial court did not abuse its discretion
in concluding that the late disclosure did not prejudice Alford,
because he and his counsel already had knowledge that there
was documentation of Alford’s incarceration. Alford argues that
the surprise was that the State would produce this documenta-
tion at trial. He then states, somewhat abstractly, that “[o]ne
of those factors” defense counsel takes into account “when
advising clients whether to settle or proceed to trial . . . is
whether or not the State has the evidence to prove a necessary
15 State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
16 State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007), disapproved
on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727
(2007).
STATe v. AlForD 	827
Cite as 278 Neb. 818

element.”17 And Alford asserts broadly that the evidence was
“prejudicial” because, without it, the State would not be able to
obtain a conviction. This is not how we define prejudice in the
context of late disclosure.
[10] Whether a prosecutor’s late disclosure of evidence
results in prejudice depends on whether the information sought
is material to the preparation of the defense, meaning that
there is a strong indication that such information will play
an important role in uncovering admissible evidence, aiding
preparation of witnesses, corroborating testimony, or assist-
ing impeachment or rebuttal.18 Alford does not argue that the
evidence of his confinement was prejudicial in any of these
ways. If evidence of an element of the offense is public record,
then there is no unfair prejudice resulting from the State’s fail-
ure to explicitly disclose that this evidence will be offered at
trial. The defendant should expect that the State will attempt
to prove its case, and the lack of such explicit notice neither
surprises the defendant nor affects the defendant’s ability to
prepare witnesses, corroborate testimony, or assist impeach-
ment or rebuttal.
(b) Jury Instructions
[11,12] Alford next argues that the court erred in giving
instructions Nos. 3 and 4 and in failing to give his tendered
instructions Nos. 1 through 6. In an appeal based on a claim
of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or other-
wise adversely affected a substantial right of the appellant.19
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.20
17 brief for appellee on cross-appeal at 18.
18 State v. Gutierrez, supra note 15.
19 State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
20 Id.
828 	278 NebrASkA reporTS

Instruction No. 3 stated:
The material elements of the crime of assault by a con-
fined person are:
1. The defendant intentionally, knowingly, or recklessly
caused bodily injury to Anthony lukowski;
2. The act took place on or about February 10, 2008;
3. At the time the act took place, the defendant
was legally confined in a jail or correctional or penal
institution;
4. The act took place in Sarpy County, Nebraska; and
5. The defendant did not act in self-defense.
If you decide that the State proved each element
beyond a reasonable doubt, then you must find the
defendant guilty. otherwise, you must find the defendant
not guilty.
Instruction No. 4 stated:
The defendant acted in self defense if:
1. Anthony lukowski used or threatened force against
the defendant; and
2. Under the circumstances as they existed at the time,
the defendant reasonably believed that the force he used
against Anthony lukowski was immediately necessary
to protect the defendant against any such force used or
threatened by Anthony lukowski.
The fact that the defendant may have been wrong in
estimating the danger does not matter so long as there
was a reasonable basis for what he believed and he acted
reasonably in response to that belief.
Alford’s proposed instruction No. 1 was largely the same
as the court’s instruction No. 3, except for (1) the added intro-
duction that “you must find each of the following elements
beyond a reasonable doubt,” (2) the addition of the element
that the jury find “[t]hat Mario Alford’s acts were not to avoid
a greater harm,” and (3) the fact that it used Alford’s name
rather than “the defendant.” Alford’s proposed instruction No.
2 was indiscernible from the court’s instruction No. 4 above.
Alford’s proposed instruction No. 3 stated that “Mario Alford
is not required to prove that he acted in self defense. It is
up to the State to prove that he did not.” Alford’s proposed
STATe v. AlForD 	829
Cite as 278 Neb. 818

instructions Nos. 6 through 8 sought to present to the jury the
lesser offenses of third degree assault and third degree assault,
mutual consent.
According to Alford, instruction No. 3 misstates the law by
adding the element that he did not act in self-defense. And he
claims that instruction No. 3, when read together with instruc-
tion No. 4, failed to instruct the jury that “if it found [Alford]
acted in self-defense, the State must disprove that he acted in
self-defense.”21 Further, Alford argues that “the instructions did
not inform the jury that the State must disprove the theory of
self-defense beyond a reasonable doubt.”22 We find no merit to
these contentions.
Instruction No. 3 places the burden on the State to prove,
“beyond a reasonable doubt,” that Alford did not act in self-
defense. It places this burden on the State without any pre-
requisite or limitation. It is true that the defendant carries the
initial burden to raise the issue of self-defense as an affirma-
tive defense,23 but when the defendant has produced sufficient
evidence to raise the defense, the issue is one which the State
must disprove.24 Not only was there no prejudice in this case
by the instruction given, but it was proper to include the
absence of self-defense as one of the elements the State had to
prove.25 We conclude that Alford’s proposed instruction that “if
it found [Alford] acted in self-defense, the State must disprove
that he acted in self-defense”26 would have simply confused
the jury.
[13] relatedly, we disagree that the jury could have been
misled, by the combination of instructions Nos. 3 and 4, to
believe that the burden of proving self-defense was placed
on Alford. There is no meaningful distinction between given
21 brief for appellee on cross-appeal at 20.
22 Id.
23 See, State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999); State v.
Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997).
24 Id.
25 See State v. Warren, 9 Neb. App. 60, 608 N.W.2d 617 (2000).
26 brief for appellee on cross-appeal at 20.
830 	278 NebrASkA reporTS

instruction No. 3, that the State was required to prove that
Alford “did not act in self-defense,” and Alford’s proposed
instructions, that the State was required to “disprove the theory
of self-defense.”27 It is not error for the trial court to refuse
to give a defendant’s requested instruction where the sub-
stance of the requested instruction was covered in the instruc-
tions given.28
Furthermore, Alford’s proposed instruction that he was “not
required to prove that he acted in self defense” was simply not
necessary when the lack of self-defense was presented to the
jury as an element of the State’s case in chief. It is understood
that if the State is required to prove an element, then the defend-
ant is not required to prove the same. There especially could
have been no room for doubt in this particular case when the
prosecutor explained to the jury during closing arguments that
it was the State’s burden to show “each and every one” of the
elements in the jury instructions, including that Alford did not
act in self-defense.
[14] Finally, Alford argues the court should have instructed
the jury on the lesser-included offenses of third degree assault,
as described in tendered instructions Nos. 6 through 8. A court
must instruct on a lesser-included offense if (1) the elements of
the lesser offense are such that one cannot commit the greater
offense without simultaneously committing the lesser offense
and (2) the evidence produces a rational basis for acquitting
the defendant of the greater offense and convicting the defend-
ant of the lesser offense.29 Alford argues there is a rational
basis for acquitting him of assault of a confined person, while
convicting him of simple assault, because the exhibits demon-
strating his confinement should not have been received into
evidence. Having already determined that those exhibits were
properly admitted, we find no merit to the argument that there
was a rational basis for finding that Alford was not confined
at the time of the alleged assault. Therefore, there was no
27 Id.
28 State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
29 State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
STATe v. AlForD 	831
Cite as 278 Neb. 818

basis upon which the jury could have acquitted Alford of the
greater offense while convicting him of the lesser and there
was no error in the court’s refusal to give the jury Alford’s
proposed instructions.
(c) Failure to Allow Hearsay Statement
Alford next argues that the trial court erred in sustaining
a hearsay objection to proposed testimony by Schoolfield as
to what another inmate had told him about the fight. During
cross-examination, Schoolfield stated that only one of the other
inmates in the unit agreed to tell him what he had observed.
Again, Schoolfield testified that the inmate was no longer in
the Sarpy County jail. When defense counsel asked Schoolfield
what the inmate had said about who started the fight, the court
sustained the State’s hearsay objection. Defense counsel made
an offer of proof that Schoolfield would have testified that
Alford accused lukowski of cheating in a poker game the night
before and that lukowski charged Alford and began hitting
Alford first.
The proposed statement was clearly hearsay because it
was offered to prove the truth of the matter asserted, i.e.,
that lukowski started the fight.30 The trial court accordingly
sustained the State’s hearsay objection. When the trial court
explained that the statement was hearsay, Alford’s counsel
did not argue to the trial court that it nevertheless fell under
one of the recognized exceptions to the hearsay rule. on
appeal, Alford now argues that the statement falls under the
residual hearsay exception, Neb. rev. Stat. § 27-804(2)(e)
(reissue 2008).
[15] Hearsay is not admissible except as provided by the
rules of evidence or by other rules adopted by the statutes of
the State of Nebraska or by the discovery rules of this court.31
Therefore, the proponent of the hearsay evidence has the bur-
den of identifying the appropriate exception and demonstrating
30 See, State v. Clark, 255 Neb. 1006, 588 N.W.2d 184 (1999); Neb. rev.
Stat. § 27-801(3) (reissue 2008).
31 See State v. Hembertt, 269 Neb. 840, 696 N.W.2d 473 (2005).
832 	278 NebrASkA reporTS

that the testimony falls within it.32 And when the opposing
party objects to evidence as hearsay and the trial court sus-
tains the objection, the proponent is required to point out the
possible hearsay exceptions in order to preserve the point for
appeal.33 because defense counsel in this case failed to raise
the issue of an exception to the hearsay exclusion, the facts rele-
vant to determining whether a hearsay exception applied were
never subjected to the factfinding and discretionary functions
of the trial judge. We will not address these arguments for the
first time on appeal.34
(d) Closing Arguments
Alford also argues that he was prejudiced when the trial
court sustained an objection to his closing arguments. Defense
counsel argued in closing that Alford acted in self-defense,
because during the entirety of the fight, lukowski was trying
to choke Alford. Defense counsel explained that lukowski
did not mention these same details in his original statement to
Schoolfield simply because he wanted to minimize his culpa-
bility. Defense counsel then said:
Now, not only that but the State kind of went after me
a little bit. They asked . . . lukowski you only came up
with this new information after you talked with [defense
counsel]. Well, absolutely. I’m a lawyer. I’m going to go
interview my witnesses, and I went over and talked to . . .
lukowski. And I wrote my opening —
The State objected that these facts were not in evidence, and
the objection was sustained by the court.
According 	to 	Alford, 	defense 	counsel’s 	statements 	in
closing arguments were in response to the State’s line of
32 See, Odemns v. U.S., 901 A.2d 770 (D.C. 2006); State v. Cagley, 638
N.W.2d 678 (Iowa 2001). See, also, Noel v. Com., 76 S.W.3d 923 (ky.
2002); Com. v. Smith, 545 pa. 487, 681 A.2d 1288 (1996); Volkswagen of
America, Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004); Robinson v. Com.,
258 Va. 3, 516 S.e.2d 475 (1999).
33 See, People v. Ramos, 15 Cal. 4th 1133, 938 p.2d 950, 64 Cal. rptr. 2d
892 (1997); Odemns v. U.S., supra note 32; State v. Reed, 282 S.W.3d 835
(Mo. 2009); Johnson v. State, 925 S.W.2d 745 (Tex. App. 1996).
34 See Weber v. Gas ’N Shop, ante p. 49, 767 N.W.2d 746 (2009).
STATe v. AlForD 	833
Cite as 278 Neb. 818

questioning which “inferred that Alford’s attorney had per-
suaded lukowski to add more details to his story about the
altercation.”35 Therefore, Alford argues that the closing argu-
ment was proper and that by sustaining the State’s objec-
tion, the court “left the inference to the jury that Alford’s
attorney could have possibly persuaded lukowski to alter
his story, thereby calling into question the credibility of
lukowski’s testimony.”36
An examination of the prosecutor’s questioning of lukowski
during the case in chief reveals nothing improper. The prosecu-
tor did not allege that defense counsel had persuaded lukowski
to alter his story. Instead, the questioning raised concerns
about the veracity of lukowski’s testimony due to the fact that
he waited 5 months to add important details to his version of
events. lukowski revealed that he had never shared this new
information with the authorities that originally took his state-
ment. And he was led to reveal that he had only shared this
information with Alford’s counsel. However, that fact was
apparently the truth.
And even if improper questioning had occurred, the remedy
was an objection at the time of questioning and rehabilita-
tion during recross. The trial court was not obligated to allow
defense counsel to address during closing arguments what-
ever slight occurred during the State’s case in chief, real or
imagined. We find no error in the trial court’s sustaining the
State’s objection.
(e) Motion for New Trial
[16] Alford argues that the aggregate “irregularities” of
the court’s not allowing the inmate’s hearsay statement into
evidence and sustaining the prosecution’s objection to the
defense’s closing arguments, as well as its alleged errors in
the jury instructions, warranted a new trial. In a criminal
case, a motion for new trial is addressed to the discretion of
the trial court, and unless an abuse of discretion is shown,
35 brief for appellee on cross-appeal at 31.
36 Id.
834 	278 NebrASkA reporTS

the trial court’s determination will not be disturbed.37 As we
have already addressed each of these arguments separately
and found no error, we likewise find no merit to Alford’s
argument that the court should have granted his motion for
new trial.
(f) Sufficiency of evidence
[17] Alford further claims that the jury’s verdict was unsup-
ported by the evidence. In particular, Alford asserts the jury
should have concluded that he acted in self-defense. He also
alleges there was insufficient evidence demonstrating that
lukowski was injured by Alford. When reviewing a criminal
conviction for sufficiency of the evidence to sustain the convic-
tion, 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.38
In making this determination, the court should not resolve con-
flicts in the evidence, pass on the credibility of the witnesses,
or reweigh the evidence, as these matters are for the finder
of fact.39
Alford claims he acted in self-defense because lukowski
started the fight and only when Alford was unable to breathe
did he retaliate. The extent to which Alford was responding to
lukowski’s choking him, however, was a question for the trier
of fact. In lukowski’s original statement, he did not mention
that he choked Alford at all. Nor was the evidence undisputed
that lukowski was the first aggressor. lukowski’s original
statement was that Alford physically attacked him first. And,
regardless, while a determination of whether the victim was
the first aggressor is an essential element of a self-defense
claim,40 it is not decisive. It does not follow that every time
the victim is the first aggressor, the defendant’s use of force
is justified.
37 State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
38 State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).
39 Id.
40 See State v. Lewchuk, 4 Neb. App. 165, 539 N.W.2d 847 (1995).
STATe v. AlForD 	835
Cite as 278 Neb. 818

We also note that regardless of who started the fight
and whether lukowski ever choked Alford, Neb. rev. Stat.
§ 28-1409 (reissue 2008), Nebraska’s use-of-force statute,
states that the use of force upon or toward another person is
justifiable when the actor believes that such force is “imme-
diately necessary” for the purpose of protecting himself. Such
belief must be reasonable and in good faith.41 There was evi-
dence in this case from which the jury could have concluded
that Alford attacked lukowski even when Alford was not in
immediate danger. In summary, there was sufficient evidence
for the jury to conclude that Alford’s actions were not justified
by self-defense.
We also find the evidence sufficient to demonstrate that
lukowski was injured by the assault. lukowski was observed
with a bloody nose, and he had been observed prior to the fight
without any injuries. Although Alford speculates that lukowski
caused his own injuries by head-butting Alford, again, this was
a question for the jury.
(g) Admissibility of prior Convictions
Alford argues that the trial court erred in finding that he
was a habitual criminal.42 Nebraska’s habitual criminal statutes
provide for enhanced mandatory minimum and maximum sen-
tences for a convicted defendant who has been twice convicted
of crimes for terms not less than 1 year.43 The trial court found
that Alford was previously convicted in Nebraska of posses-
sion of a controlled substance and convicted in federal court
of possession of ammunition. He served a sentence of at least
1 year for each crime. It found, in addition, that Alford was
represented by counsel at the time of those two convictions.
but Alford asserts that the exhibits documenting these prior
convictions lacked the necessary degree of trustworthiness
and, as a matter of law, did not satisfy the State’s burden
of proof.
41 State v. Cowan, 204 Neb. 708, 285 N.W.2d 113 (1979).
42 See Neb. rev. Stat. § 29-2221 (reissue 2008).
43 Id.
836 	278 NebrASkA reporTS

[18,19] In a proceeding to enhance a punishment because
of prior convictions, the State has the burden of proving
such prior convictions by a preponderance of the evidence.44
In addition, the State must prove the defendant was repre-
sented by counsel at the time of conviction and sentencing,
or had knowingly and voluntarily waived representation for
those proceedings.45
[20] Neb. rev. Stat. § 29-2222 (reissue 2008) states that “a
duly authenticated copy of the former judgment and commit-
ment, from any court in which such judgment and commitment
was had, for any such crimes formerly committed by the party
so charged, shall be competent and prima facie evidence of
such former judgment and commitment.” However, § 29-2222
does not confine the proof on the issue of the defendant’s
prior convictions to the documents therein mentioned.46 The
existence of a prior conviction and the identity of the accused
as the person convicted may be shown by any competent evi-
dence, including the oral testimony of the accused and duly
authenticated records maintained by the courts or penal and
custodial authorities.47
The possession of a controlled substance conviction was
demonstrated by exhibits 8 and 9. exhibit 8 is a stapled packet
prepared by the district court clerk for Douglas County. The
10-page packet contains the information, a journal entry show-
ing Alford was represented by counsel and pled no contest, a
signed and stamped order by the trial judge sentencing Alford
to probation, and a similar document sentencing Alford to 1 to
3 years’ imprisonment after violating probation. The last page
of the packet contains the seal of the court and a certification
by the deputy clerk that the “above and foregoing is a true
[a]nd correct copy as the same appears fully upon the records
and files of this Court now in my charge.”
44 See, State v. Robinson, supra note 29; State v. Thomas, 268 Neb. 570, 685
N.W.2d 69 (2004).
45 See State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
46 State v. Coffman, 227 Neb. 149, 416 N.W.2d 243 (1987).
47 State v. Thomas, supra note 44.
STATe v. AlForD 	837
Cite as 278 Neb. 818

exhibit 9 is a “pen packet” providing the date Alford was
sentenced on the possession charge, the date received, the date
discharged, and the classification of the offense. It contains
photographs and fingerprints identifying Alford as the subject
of the commitment. The certificate of discharge shows that
Alford was committed on September 24, 2002, and discharged
on November 8, 2003. exhibit 9 contains a signed letter stating
that the information was kept in the normal course of business
of the Department of Correctional Services. Attached also is
a certification by the records custodian of the central records
office, and further certified by the Secretary of State, that the
copies were full, true, and correct reproductions of the origi-
nals on file.
The federal possession of ammunition charge was demon-
strated by exhibits 10 and 11. exhibit 10 contains 43 pages of
various documents pertaining to Alford’s agreement with the
U.S. District Attorney to plead guilty to being a felon in pos-
session of ammunition.48 It includes the plea agreement, file
stamped and certified by the deputy clerk as an accurate copy
and signed by Alford and his counsel. The judge’s minutes,
certified by the deputy clerk as a copy of a document elec-
tronically filed, show Alford’s guilty plea, with the appearance
of defense counsel, and the court’s acceptance of that plea. A
judgment of guilt and sentence to 37 months’ imprisonment is
found in a six-page order “signed” with the judge’s typed name
and certified by the deputy clerk as a printed copy of an elec-
tronic filing. Another document in exhibit 10 shows that Alford
was remanded to the custody of the U.S. Marshal for a prison
term of 37 months. This document of imprisonment is signed
by the warden and contains a file stamp of the district court and
a certification by the deputy clerk.
exhibit 11 is the “pen packet” for the felon in possession
of ammunition charge, which is similar to the pen packet
for the possession of a controlled substance conviction. The
packet is preceded by a signed “Certificate of record” by
the “Custodian of records” that “the following and attached
records are true and correct copies of records of [the Federal
48 18 U.S.C. § 922(g)(1) (2006).
838 	278 NebrASkA reporTS

Correctional Institution].” Underneath the signature of the
“Custodian of records” is the title of “Supervisory Inmate
Systems Specialist.”
[21] Alford first argues that all of the above is insufficient
proof of his prior convictions because there is no signature
reflecting the court’s “‘[r]endition’” of the judgments.49 While
we have at times said that the evidence of a prior conviction
must reflect a court’s “act of rendering judgment,”50 we have
not been referring to the requirements for a final, appealable
order under Neb. rev. Stat. § 25-1301 (reissue 2008). Section
25-1301 does require a judge’s signature and the file stamp
before the judgment is considered rendered and final. but
in our reference to “rendering judgment,” we have referred
instead to Neb. rev. Stat. § 27-901 (reissue 2008), which sets
forth the requirement of authentication or identification.51 In
State v. Thomas, we indicated that there is no requirement—for
purposes of enhancement—that a judge’s signature appear on a
judgment of conviction.52
Alford also argues that the form of the authentication or
identification of the prior convictions is lacking. Alford takes
issue with the fact that there was no certification on the actual
page of the judge’s minutes for the possession of a controlled
substance charge. He complains that the federal certification
“only attests to the fact that the document was filed in the U.S.
District Court for the District of Nebraska.”53 He also has sev-
eral issues with the federal pen packet, arguing that “the inmate
systems manager may not be the proper person to certify the
authenticity of United States District Court records,”54 that the
signature is signed in a different-colored ink than the rest of
the document, that the signature of acknowledgment of receipt
49 brief for appellee on cross-appeal at 35.
50 State v. Linn, 248 Neb. 809, 812, 539 N.W.2d 435, 438 (1995).
51 See id.
52 State v. Thomas, supra note 44. See, also, State v. Gales, supra note 28;
State v. Linn, supra note 50; State v. Fletcher, 8 Neb. App. 498, 596
N.W.2d 717 (1999).
53 brief for appellee on cross-appeal at 37.
54 Id. at 38.
STATe v. AlForD 	839
Cite as 278 Neb. 818

is missing, and that the date and signature of the warden are
missing. We find the documents sufficiently authenticated to
serve as evidence demonstrating the prerequisite convictions by
a preponderance of the evidence.
In reviewing criminal enhancement proceedings, a judicial
record of this state, or of any federal court of the United States,
may be proved by the production of the original or by a copy
thereof, certified by the clerk or the person having the legal
custody thereof, and authenticated by his or her seal of office,
if he or she has one.55 The seals and certifications purport to
be by a person having legal custody of the documentation and
serve as prima facie evidence that they are, absent evidence to
the contrary. And nowhere is it required that the certification
be on every single page of a document when it is clear that the
certification refers to several pages. Finally, we find the attes-
tation that the federal documents were filed in the U.S. District
Court for the District of Nebraska to be sufficient.
(h) excessive Sentence
Finally, Alford argues that his sentence was excessive. Alford
argues that the legislature has expressed a sentencing policy in
favor of probation and, without any specific examples, asserts
that his sentence was greater than sentences imposed on other
defendants convicted of assault by a confined person. Assault
by a confined person is punishable as a Class IIIA felony56
with an authorized sentencing range from 0 to 5 years’ impris-
onment.57 but a person found to be a habitual criminal under
§ 29-2221(1) must be sentenced to a minimum prison term of
10 years, with a maximum term of not more than 60 years.
Alford was sentenced to 10 to 36 years’ imprisonment. The
court specifically found imprisonment was necessary for the
protection of the public, because Alford would likely engage in
additional criminal conduct if placed on probation and because
a lesser sentence will depreciate the seriousness of the offense
or promote disrespect for the law.
55 State v. Thomas, supra note 44.
56 § 28-932(1).
57 Neb. rev. Stat. § 28-105(1) (reissue 2008).
840 	278 NebrASkA reporTS

[22,23] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
imposed.58 Whether probation or incarceration is ordered is
likewise a choice within the discretion of the trial court, whose
judgment denying probation will be upheld in the absence
of an abuse of discretion.59 We conclude that the trial court
did not abuse its discretion in sentencing Alford to 10 to 36
years’ imprisonment.
VI. CoNClUSIoN
We remand the cause with directions to the trial court to
vacate the credit for time served. In all other respects, we
affirm the conviction and sentence.
affirMed iN part, aNd iN part reverSed
aNd reMaNded With directioNS.
heavicaN, C.J., not participating.
58 State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
59 State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).
STATe v. WIllIAMS 	841
Cite as 278 Neb. 841
State of NebraSka , appellee , v.
larry WilliaMS, appellaNt.
774 N.W.2d 384
Filed November 6, 2009. 	No. S-08-1220.
1. Double Jeopardy. The Double Jeopardy Clauses of both the federal and the
Nebraska Constitutions protect a defendant against a second prosecution for the
same offense after an acquittal or conviction.
2. ____. A state may not put a defendant in jeopardy twice for the same offense.
3. Double Jeopardy: Juries. In a case tried to a jury, jeopardy attaches when the
jury is impaneled and sworn.
4. Double Jeopardy: Motions for Mistrial. A mistrial does not automatically
terminate jeopardy, because a trial can be discontinued when particular circum-
stances manifest a necessity for doing so, and when failure to discontinue would
defeat the ends of justice.
5. ____: ____. Double jeopardy does not arise if the State can demonstrate manifest
necessity for a mistrial declared over the objection of the defendant.