State v. Duncan

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STATE v. DUNCAN
Cite as 293 Neb. 359
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
State of Nebraska, appellee, v.
Gregory S. Duncan, appellant.
878 N.W.2d 363
Filed April 15, 2016. 	No. S-15-668.
1. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, an appellate
court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for the finder
of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.
2. Jury Instructions: Appeal and Error. Whether a jury instruction is cor-
rect is a question of law, which an appellate court independently decides.
3. Sentences: Words and Phrases: Appeal and Error. An appellate court
reviews criminal sentences for abuse of discretion, which occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal
is a question of law. In reviewing claims of ineffective assistance of
counsel on direct appeal, an appellate court decides only questions of
law: Are the undisputed facts contained within the record sufficient to
conclusively determine whether counsel did or did not provide effec-
tive assistance and whether the defendant was or was not prejudiced by
counsel’s alleged deficient performance?
5. Criminal Law: Motions to Dismiss: Directed Verdict: Waiver:
Convictions: Appeal and Error. In a criminal trial, after a court over-
rules a defendant’s motion for a dismissal or a directed verdict, the
defendant waives any right to challenge the trial court’s ruling if the
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defendant proceeds with trial and introduces evidence. But the defendant
may challenge the sufficiency of the evidence for the conviction.
6. Directed Verdict: Appeal and Error. When a defendant makes a
motion at the close of the State’s case in chief and again at the conclu-
sion of all the evidence, it is proper to assign as error that the defend-
ant’s motion for directed verdict made at the conclusion of all the evi-
dence should have been sustained.
7. Criminal Law: Directed Verdict. In a criminal case, a court can direct
a verdict only when there is a complete failure of evidence to establish
an essential element of the crime charged or the evidence is so doubt-
ful in character, lacking probative value, that a finding of guilt based
on such evidence cannot be sustained. If there is any evidence which
will sustain a finding for the party against whom a motion for directed
verdict is made, the case may not be decided as a matter of law, and a
verdict may not be directed.
8. Jury Instructions. In giving instructions to the jury, it is proper for the
court to describe the offense in the language of the statute.
9. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant 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.
10. Jury Instructions: Appeal and Error. All the jury instructions must
be read together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitat-
ing reversal.
11. Jury Instructions. In instructing a jury, the trial court is not required to
define language commonly used and generally understood.
12. Sentences. When imposing a sentence, the sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education and expe-
rience, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense, and (8) the violence involved in the
commission of the offense. The sentencing court is not limited to any
mathematically applied set of factors.
13. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
14. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does

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not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
15. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient performance
actually prejudiced his or her defense.
16. ____: ____. To show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law.
17. ____: ____. To show prejudice, the defendant must demonstrate a rea-
sonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
18. Effectiveness of Counsel: Presumptions: Appeal and Error. The
entire ineffectiveness analysis is viewed with a strong presumption
that counsel’s actions were reasonable and that even if found unrea-
sonable, the error justifies setting aside the judgment only if there
was prejudice.
19. Effectiveness of Counsel: Proof. In an ineffective assistance of counsel
claim, deficient performance and prejudice can be addressed in either
order. If it is more appropriate to dispose of an ineffectiveness claim due
to lack of sufficient prejudice, that course should be followed.
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Cindy
A. Tate, and Korey T. Taylor for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and Kelch, JJ.
Cassel, J.
I. NATURE OF CASE
A statute1 enhances the penalty for third degree assault
when it is committed because of the victim’s association with
1 Neb. Rev. Stat. § 28-111 (Cum. Supp. 2014).

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a person of a certain sexual orientation. Gregory S. Duncan
appeals from a conviction and sentence pursuant to this stat-
ute. There are two principal issues. We first consider whether
the State introduced evidence sufficient to withstand Duncan’s
renewed motion for a directed verdict. It did. Second, we find
no error in the district court’s refusal of Duncan’s requested
jury instruction defining “sexual orientation.” And finding no
merit to Duncan’s other assignments of excessive sentence
and ineffective assistance of counsel, we affirm Duncan’s con-
viction and sentence.
II. BACKGROUND
Duncan was convicted of third degree assault, discrimina-
tion based, for punching Ryan Langenegger outside a restau-
rant in Omaha, Nebraska. Third degree assault, discrimination
based, is a Class IV felony punishable by a maximum of 5
years’ imprisonment and a $10,000 fine.2 He was sentenced
to 12 to 18 months in prison and given credit for 53 days of
time served.
The statute that provides enhanced penalties for discrimina-
tion based offenses provides, in relevant part:
Any person who commits one or more of the following
criminal offenses against a person or a person’s property
because of the person’s . . . sexual orientation . . . or
because of the person’s association with a person of a
certain . . . sexual orientation . . . shall be punished by
the imposition of the next higher penalty classification
than the penalty classification prescribed for the criminal
offense, unless such criminal offense is already punish-
able as a Class IB felony or higher classification: . . .
assault in the third degree, section 28-310 . . . .3
At trial, Duncan admitted that he punched Langenegger but
claimed that the punch was not motivated by Langenegger’s
2 Neb. Rev. Stat. § 28-310 (Reissue 2008); § 28-111; Neb. Rev. Stat.
§ 28-105 (Cum. Supp. 2014).
3 § 28-111.

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association with a person of a certain sexual orientation. This
is his direct appeal.
1. State’s Case in Chief
The State presented testimony that before the assault,
Langenegger attended a “drag show” at a “gay bar” with
two friends, Joshua Foo and Jacob Gellinger. Langenegger
is 	heterosexual, 	and 	Foo 	and 	Gellinger 	are 	homosexual.
Langenegger was wearing a men’s suit, Foo was wearing
pants and a suit jacket over a women’s sequined top, and
Gellinger was wearing a dress, platform shoes, makeup, and
a wig. Gellinger is a tall person, and the platform shoes made
him appear around 6 feet 5 inches tall. When Gellinger is
dressed in women’s clothing, Gellinger “go[es] by Fendi Blu,”
which is an “alter ego” or “drag persona.” Gellinger was gen-
erally identified as “Fendi Blu” at trial, and we do the same
in this opinion.
Around 2 a.m., Foo, Langenegger, and Fendi Blu left the bar
together and went to a restaurant. Fendi Blu was intoxicated,
but Foo and Langenegger were not. While they were sitting
at the restaurant, Foo noticed a group of three men who were
“kind of like joking” and “kept looking over at our table and
things.” Foo, Langenegger, and Fendi Blu did not know who
the men were at the time, but they were later identified at
trial as Duncan, Joseph Adriano, and Paul Larson. The men’s
behavior made Foo feel “uneasy being there at the moment,”
so he asked Langenegger and Fendi Blu to leave.
While they waited for Langenegger to finish his food,
Foo saw Adriano walk over to their table. Foo testified that
Adriano looked over to his friends and said, “‘Should I,
should I?’” Foo thought Adriano’s tone “wasn’t . . . very
good,” and he told Langenegger and Fendi Blu, “‘We need
to go.’” Fendi Blu and Langenegger gathered their things,
and as they were leaving, Foo heard the men laughing and
calling out derogatory names as they walked away, including
the word “‘fag.’” At trial, counsel for the State asked Foo

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whether “‘fag’” is “a derogatory word for homosexuals,” and
Foo responded, “Yes.”
Both groups exited the restaurant. Once outside, Foo helped
put on Fendi Blu’s shoes, and Duncan’s group stopped in front
of Foo’s group. Foo testified that Adriano walked up to Fendi
Blu, looked over at Duncan and Larson, and said, “‘Should
I?’” as they laughed behind him. Duncan and Larson stood
a few feet behind Adriano. Langenegger heard Adriano say,
“‘Faggot,’” and Foo heard someone say the word “‘queer.’”
Langenegger and Foo both testified that Fendi Blu then looked
down and said, “‘I know. I’m just a boy in a dress,’” and
Adriano responded, “‘Yeah, it’s fucking disgusting.’”
Langenegger then “tried to calm down the situation,” saying,
“‘Listen, we just want to go home,’” and Adriano responded,
“‘Come on, you fucking pussy.’” Langenegger began to state
again that they just wanted to go home, but before he could
finish speaking, he was punched in the face by Duncan.
Langenegger and Foo testified that Langenegger did not make
any threatening gestures, raise his voice, or touch Adriano or
anyone else during this exchange.
After the punch, Duncan, Adriano, and Larson walked away,
and Foo and Langenegger heard them laughing. Langenegger
touched his face, and his hands came away covered with
blood. He had “blood coming from his nose, in between his
eyes, coming down his chin.” Foo, Langenegger, and Fendi
Blu proceeded to Langenegger’s car, where Foo called the 911
emergency dispatch service and reported the incident. When
the police arrived, Langenegger decided not to file a report
because he “didn’t think [Duncan, Adriano, and Larson] were
going to get caught.”
After speaking with the police, Foo and Langenegger drove
Fendi Blu home and then drove to Foo’s house. Foo took a
photograph of Langenegger “to kind of document, like, what
happened,” and he posted the photograph on his personal
“Facebook” page. He hoped that by posting about the assault
online, someone might identify the attacker.

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The police communicated with Foo and Langenegger after
the photograph was posted. Langenegger made a formal report
of the incident, and detectives identified Larson after obtain-
ing his credit card information from the restaurant. Through
Larson, detectives identified Duncan and Adriano. A detec-
tive testified that when he arrested Duncan, Duncan “did not
seem to be [surprised] at all” that he was being arrested for a
“hate crime.”
Adriano and Larson also testified during the State’s case in
chief. Adriano testified that he remembers drinking at several
bars that night, but that he does not remember leaving the bars
or anything that occurred at the restaurant because he had a
“blackout” from drinking. He said that he does not recall using
the word “faggot” and that he does not use that word because
he has close friends and family friends who are homosexuals.
He also testified that he was not aware until later that anyone
was assaulted.
Larson testified that when they exited the restaurant, he
and Duncan were a few feet behind Adriano, and that he
observed Adriano and Langenegger talking to each other, but
could not hear what they were saying. After Duncan punched
Langenegger, Larson saw Langenegger fall and get back up,
and he also saw Adriano fall or stumble, but he did not see
Langenegger touch Adriano.
2. Motion for Directed Verdict
After this evidence was adduced, the State rested and
Duncan moved for a directed verdict of acquittal on the charge
of discrimination-based assault. He argued that the State had
not met its burden “to show that there was some evidence that
[Duncan] specifically targeted or selected [Langenegger] as a
result or because he was associated with — he was associated
with the gay people in this crowd.”
The court stated that it had researched the interpretation of
“‘because of’” in other jurisdictions and discovered that they
take one of three approaches. It said that some jurisdictions
hold that sexual orientation must be the “sole reason” for the

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assault, some jurisdictions apply a “‘but-for’ test,” and others
have stated that the victim must have been “selected substan-
tially because of [his or her] association with a particular sexual
orientation.” The court concluded that a Nebraska court “would
probably be in line with the substantial factor case law.” And it
overruled Duncan’s motion, explaining that although the State
had not presented direct evidence of Duncan’s making outward
slurs, the testimony presented was sufficient to support an
inference of a discriminatory motive.
3. Duncan’s Case in Chief
and Renewed Motion
Duncan’s case in chief consisted of his own testimony. He
testified that Langenegger pushed Adriano and that he punched
Langenegger to defend Adriano. He said he did not know or
consider the sexual orientation of Langenegger or anyone else
that night. He admitted that he was an arm’s length away when
Adriano was face-to-face with Langenegger, but he claimed
that he did not hear what they said to one another.
Duncan also testified that he did not notice Foo’s group
or stare at them and that he had no idea that any homosexual
people were in Foo’s group. He did not hear Adriano make any
slurs against homosexual people, and he does not remember
seeing a man dressed as a woman in the restaurant.
After Duncan testified, he renewed his motion for a directed
verdict of acquittal. He argued again that the evidence did not
establish that he targeted Langenegger because of his associa-
tion with people of a certain sexual orientation. The court over-
ruled the motion.
III. ASSIGNMENTS OF ERROR
Duncan assigns, restated and consolidated, that the district
court erred in (1) overruling his motions for a directed verdict,
(2) denying his requested jury instruction, and (3) imposing
an excessively harsh sentence. He also claims that he received
ineffective assistance of counsel.

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IV. STANDARD OF REVIEW
[1] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction.4
[2] Whether a jury instruction is correct is a question of law,
which an appellate court independently decides.5
[3] An appellate court reviews criminal sentences for abuse
of discretion, which 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.6
[4] Whether a claim of ineffective assistance of trial coun-
sel may be determined on direct appeal is a question of law.7
In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only questions of
law: Are the undisputed facts contained within the record
sufficient to conclusively determine whether counsel did or
did not provide effective assistance and whether the defend-
ant was or was not prejudiced by counsel’s alleged deficient
performance?8
4 State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003).
5 Warner v. Simmons, 288 Neb. 472, 849 N.W.2d 475 (2014).
6 State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).
7 State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
8 Id.

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V. ANALYSIS
1. Directed Verdict
(a) Waiver
Duncan assigns that the district court erred in overruling
both his motion for a directed verdict and his renewed motion
for a directed verdict. In his assignments related to his motion
for a directed verdict, he argues that the court misinterpreted
the phrase “because of” in the enhancement statute and that
it should have found that the State presented insufficient evi-
dence to support a conviction under that statute. In his assign-
ment related to his renewed motion, he argues again that the
State presented insufficient evidence to support his conviction
under the enhancement statute.
[5] The State responds that Duncan waived any right to
challenge the district court’s ruling on either motion because
he proceeded with the trial and presented evidence. In support
of its position, it cites State v. Seberger,9 where we stated the
well-established rule that in a criminal trial, after a court over-
rules a defendant’s motion for a dismissal or a directed verdict,
the defendant waives any right to challenge the trial court’s
ruling if the defendant proceeds with trial and introduces evi-
dence, but the defendant may challenge the sufficiency of the
evidence for the conviction.
The State’s argument regarding Duncan’s first motion for a
directed verdict is correct. Because Duncan proceeded with the
trial and presented evidence, he waived any right to challenge
the district court’s ruling on that motion.
[6] However, the State incorrectly argues that the waiver
rule applies to Duncan’s renewed motion. We said in State v.
Severin10 that
[w]hen a defendant makes a motion at the close of the
State’s case in chief and again at the conclusion of all the
9 State v. Seberger, 284 Neb. 40, 815 N.W.2d 910 (2012).
10 State v. Severin, 250 Neb. 841, 849, 553 N.W.2d 452, 457 (1996).

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evidence, it is proper to assign as error that the defend-
ant’s motion for directed verdict made at the conclusion
of all the evidence should have been sustained.”
Thus, it is proper for us to address whether the district court
should have sustained Duncan’s renewed motion for a directed
verdict.11 We clarify that this is the correct rule, but in the
instant case, it makes little difference, because in Duncan’s
renewed motion, he complained only that the evidence was
insufficient to support his conviction.
(b) Renewed Motion for
Directed Verdict
Duncan claims that the district court should have granted
his renewed motion for a directed verdict because the evi-
dence was insufficient to support a conviction under the
enhancement statute. In order to obtain an enhanced pen-
alty, the State was required to prove that Duncan assaulted
Langenegger because of Langenegger’s association with a
person of a certain sexual orientation.12 Essentially, Duncan
argues that the State did not meet its burden because it did not
present direct evidence that he was aware that Foo and Fendi
Blu were homosexual.
[7] In a criminal case, a court can direct a verdict only
when there is a complete failure of evidence to establish an
essential element of the crime charged or the evidence is so
doubtful in character, lacking probative value, that a finding
of guilt based on such evidence cannot be sustained.13 If there
is any evidence which will sustain a finding for the party
against whom a motion for directed verdict is made, the case
may not be decided as a matter of law, and a verdict may not
be directed.14
11 See State v. Thomas, 238 Neb. 4, 468 N.W.2d 607 (1991).
12 See § 28-111.
13 State v. Cook, supra note 4.
14 Id.

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To determine whether there was a complete failure of evi-
dence to establish that Duncan assaulted Langenegger because
of his association with a person of a certain sexual orienta-
tion, we first consider the meaning of the phrase “because of.”
We have discussed the phrase on two previous occasions. In
Wymore v. Farmers Mut. Ins. Co. of Nebraska,15 we turned to
the dictionary and concluded that in the context of an insur-
ance contract, “because of” meant “‘by reason of: on account
of.’” Similarly, in City of Gordon v. Ruse,16 we concluded
that in the context of a statute requiring reimbursement of
expenses incurred “because of” condemnation proceedings,
“[t]he plain, ordinary, or common meaning of the phrase
‘because of’ is ‘as a result of’ or ‘in connection with.’” Thus,
the phrase “because of” in the enhancement statute requires
the State to prove some causal connection between the vic-
tim’s association with a person of a certain sexual orientation
and the assault.17
We have often discussed causation in criminal cases. We
have said that criminal conduct is a cause of an event if the
event in question would not have occurred but for that conduct;
conversely, conduct is not a cause of an event if that event
would have occurred without such conduct.18
But this is the first time that we must apply the concept
to a defendant’s motive rather than his conduct. This con-
cept of causation is ordinarily used to determine whether a
15 Wymore v. Farmers Mut. Ins. Co. of Nebraska, 182 Neb. 763, 764, 157
N.W.2d 194, 195 (1968) (quoting Webster’s Third New International
Dictionary, Unabridged 194 (1961)).
16 City of Gordon v. Ruse, 268 Neb. 686, 691, 687 N.W.2d 182, 186 (2004).
17 See, In re M.S., 10 Cal. 4th 698, 896 P.2d 1365, 42 Cal. Rptr. 2d 355
(1995) (interpreting “because of” to require evidence of causal connection
between victim’s status and act); State v. Hennings, 791 N.W.2d 828 (Iowa
2010) (same); Matter of Welfare of S.M.J., 556 N.W.2d 4 (Minn. App.
1996) (same); State v. Plowman, 314 Or. 157, 838 P.2d 558 (1992) (same).
18 State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005).

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defendant’s conduct is the cause of another’s injury or loss.
Under the language of the statute at issue here, we must
adapt it to the context of a defendant’s motive as a cause of
his behavior.19 Applying our causation principles by analogy,
the phrase “because of” in the enhancement statute required
the State to prove that Duncan would not have assaulted
Langenegger but for his association with a person of certain
sexual orientation. Under our highly deferential standard of
review, the State did so.
The evidence was sufficient to prevent a directed verdict
on the enhancement charge. First, although Duncan claimed
that he did not know that Foo and Fendi Blu were homo-
sexual, the State introduced evidence sufficient for a jury to
infer that he did. The State presented testimony that Duncan,
Adriano, and Larson were sitting together at the restaurant
when Foo heard members of Duncan’s group call out deroga-
tory names for homosexuals as he, Langenegger, and Fendi
Blu exited the restaurant. A rational jury could infer that even
if Duncan did not say the derogatory names himself, he heard
them. Additionally, while Duncan stood close enough to lunge
and punch Langenegger outside the restaurant, Langenegger
heard Adriano say, “‘Faggot,’” and Foo heard someone say
the word “‘queer.’” A rational jury could find that Duncan did
in fact hear those words and that he therefore believed that
Langenegger was with people who were homosexual.
Second, 	the 	State 	presented 	evidence 	to 	show 	that
Langenegger’s association with homosexual people was the
reason for the assault. The State’s witnesses testified that there
was no other apparent motivation. Langenegger testified that
he had not spoken to Duncan before the assault, and Foo,
Langenegger, and Larson all testified that Langenegger did not
touch Adriano or anyone else in Duncan’s group. A rational
jury could infer from this evidence that Duncan’s motivation
19 See In re M.S., supra note 17 (Kennard, J., concurring).

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was his belief that Langenegger was associated with homo-
sexual people. Therefore, the district court properly overruled
Duncan’s renewed motion for a directed verdict.
2. Jury Instruction
Duncan argues that the district court should have accepted
his requested instruction, which provided: “‘Sexual orienta-
tion’ means heterosexuality, homosexuality, or bisexuality.”
Nebraska statutes do not define the term. The court declined
to give the instruction, reasoning that “[p]articularly in light of
the facts of this case,” which involved only “homosexual and
heterosexual” people, the term sexual orientation was a matter
of common understanding. It instructed the jury that in order
to find Duncan guilty of third degree assault, discrimination
based, it had to find:
1. That [Duncan], on or about October 27, 2013, did
intentionally or knowingly cause bodily injury to . . .
Langenegger;
2. [Duncan] did so because of . . . Langenegger’s asso-
ciation with a person of a certain sexual orientation;
3. That [Duncan] did so in Douglas County, Nebraska;
and
4. That [Duncan] did not act in defense of another.
[8-10] In giving instructions to the jury, it is proper for the
court to describe the offense in the language of the statute.20
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.21 All the jury instructions must
be read together, and if, taken as a whole, they correctly state
the law, are not misleading, and adequately cover the issues
20 State v. Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015).
21 Id.

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supported by the pleadings and the evidence, there is no preju-
dicial error necessitating reversal.22
[11] Jurors are accepted because they are men and women
of common sense and have a common understanding of words
ordinarily used in our language.23 In instructing a jury, the trial
court is not required to define language commonly used and
generally understood.24
Under the facts of the instant case, the term “sexual orien-
tation” was a word commonly used and generally understood.
The term was used throughout the jury selection process
and the trial, and there is no indication in the record that
it produced confusion. For instance, during jury selection,
counsel for the State told the jury: “I’m interested in know-
ing your thoughts regarding this discrimination-based law, as
well as sexual orientation in general.” He then asked if any
juror either identified as “gay, lesbian, bisexual, or transgen-
dered or [had] a close friend or family member who identi-
fies themselves as such,” and prospective jurors responded.
No prospective juror asked what any of those terms meant.
Furthermore, when the State’s counsel asked whether “anyone
here that does not personally know someone who identifies
themsel[ves] as lesbian, gay, bisexual, or transgendered,” no
prospective juror responded that he or she did not. Clearly,
the prospective jurors were familiar with the concept of sex-
ual orientation.
Additionally, counsel for the State asked whether “anyone
believe[d] that discrimination-based laws such as this should
not include sexual orientation” and whether anyone felt “any
22 State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
23 Johnson v. Batteen, 144 Neb. 384, 13 N.W.2d 625 (1944).
24 Omaha Nat. Bank v. Manufacturers Life Ins. Co., 213 Neb. 873, 332
N.W.2d 196 (1983). See, also, Johnson v. Griepenstroh, 150 Neb. 126, 33
N.W.2d 549 (1948) (concluding no need to define “right of way”); Suiter
v. Epperson, 6 Neb. App. 83, 571 N.W.2d 92 (1997) (concluding no need
to define “lookout” and “control”).

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type of conflict inside them about their ability to be fair and
impartial in a case involving sexual orientation.” Again, no
juror asked him to define or explain the term. And Duncan’s
counsel also used the term “sexual orientation” with no appar-
ent problems. He told the prospective jurors: “So what we’re
talking about here is a case involving an assault, an assault on
somebody who was associated with a gay person or supposed
gay person. Really, the term is sexual — sexual orientation.
Gay is kind of a term we’re loosely using here.”
This is not a case where the court failed to instruct the
jury on a legal concept with a particular meaning in the law.25
The district court did not need to define “sexual orientation,”
because the term was a matter of common understanding
under the facts of this case. Even if we assume that the pro-
posed instruction was a statement of law and that it was a
correct one, Duncan has shown no prejudice from the court’s
refusal of the instruction. This assignment of error is with-
out merit.
3. Excessive Sentence
Duncan argues that the sentence of 12 to 18 months in
prison was excessive. The 12- to 18-month sentence was well
within the statutory limits for third degree assault, discrimina-
tion based, which is a Class IV felony and was at that time
punishable by a maximum of 5 years’ imprisonment and a
$10,000 fine.26 An appellate court will not disturb sentences
that are within statutory limits, unless the district court abused
its discretion in establishing the sentences.27
[12,13] When imposing a sentence, the sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
25 See, e.g., Danielsen v. Eickhoff, 159 Neb. 374, 66 N.W.2d 913 (1954)
(failing to define “proximate cause”).
26 §§ 28-310, 28-111, and 28-105.
27 State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015).

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(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense, and (8) the violence involved in the commission of
the offense.28 The sentencing court is not limited to any math-
ematically applied set of factors.29 The appropriateness of a
sentence is necessarily a subjective judgment and includes the
sentencing judge’s observation of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding the
defendant’s life.30
Duncan contends that the sentence was an abuse of discre-
tion, because the court made a statement at trial that “it was a
‘close call’ that there was even enough there to go to the jury
on the enhancement and make this more than a misdemeanor
crime.”31 He notes that he maintained “even in apologizing
to the court at sentencing that ‘[i]n absolutely no way was it
intentionally to harm someone because of [his or her] sexual
orientation.’”32 And he claims that his “criminal convictions
record was minimal.”33
At sentencing, the district court stated that it considered
Duncan’s age, experience, background, criminal history, the
type of offense, and his motivation for the offense. It noted
that Duncan has a criminal history, including a prior felony
arrest for possession with intent to deliver a controlled sub-
stance. It also explained that the presentence investigation
report was incomplete because Duncan failed to participate,
even though they “[c]ontacted [him] on a number of occa-
sions.” And it observed that because Duncan did not appear for
sentencing, the court had to issue a warrant. The court stated
28 Id.
29 Id.
30 Id.
31 Brief for appellant at 38.
32 Id.
33 Id.

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that “those types of behaviors” showed that Duncan has a “dis-
regard for court orders.”
The court also considered the gravity of the offense. It
explained that the Legislature has determined that crimes moti-
vated by bias should be punished differently than those that
are not and that “discrimination-motivated crimes do have a
different impact on . . . our social fabric.” But it also noted that
Duncan’s crime “did not involve significant violence.”
The district court’s statements show that it considered appro-
priate factors in fashioning Duncan’s sentence. What Duncan
is really arguing is that there was insufficient evidence to
convict him under the enhancement statute. We have already
concluded that the evidence was sufficient, and the jury found
that Duncan targeted Langenegger because of his association
with people of a certain sexual orientation. The district court
did not abuse its discretion in imposing a sentence of 12 to 18
months’ imprisonment.
4. Ineffective Assistance
Duncan contends that he received ineffective assistance of
counsel. He complains that his counsel insinuated that Foo
manipulated a photograph when he should have known that
Foo did not do so and that he pursued an “inconsistent and
arguably illogical or demeaning theory of defense,” which
prejudiced him.34
[14] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it can
be resolved.35 The determining factor is whether the record is
sufficient to adequately review the question.36 We conclude that
the record is sufficient to address all of Duncan’s ineffective
assistance claims.
34 Id. at 33.
35 State v. Watt, supra note 22.
36 Id.

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[15-17] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,37 the defendant must
show that counsel’s performance was deficient and that this
deficient performance actually prejudiced his or her defense.38
To show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with ordi-
nary training and skill in criminal law.39 To show prejudice, the
defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceed-
ing would have been different.40
[18,19] The entire ineffectiveness analysis is viewed with
a strong presumption that counsel’s actions were reasonable
and that even if found unreasonable, the error justifies setting
aside the judgment only if there was prejudice.41 Deficient
performance and prejudice can be addressed in either order.42
If it is more appropriate to dispose of an ineffectiveness
claim due to lack of sufficient prejudice, that course should
be followed.43
With these principles in mind, we examine each error
that Duncan alleges his counsel committed. Duncan claims
that his counsel was ineffective because he (1) asked Foo
whether he manipulated a photograph, (2) introduced a “‘sex
on the sidewalk’” theory, and (3) made “demeaning and
disparaging” comments about the victim and the State’s wit-
nesses during his closing argument. The record conclusively
37 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
38 State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
39 State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).
40 Id.
41 State v. Watt, supra note 22.
42 Id.
43 Id.

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shows that Duncan suffered no prejudice from any of these
alleged deficiencies.
(a) Photograph
During Duncan’s counsel’s cross-examination of Foo, he
insinuated that Foo used his photography “morphing” skills
to 	manipulate 	the 	photograph 	of 	Langenegger 	that 	Foo
then posted on his “Facebook” page. Foo denied manipu-
lating the photograph, and the police officer who spoke to
Langenegger that night later testified that the photograph
showed Langenegger “[a]lmost exactly” as he appeared when
he spoke to him. Duncan argues that his defense was preju-
diced, because the State received “an advantage or point with
the jury” when it rebutted the “morphing” theory through the
officer’s testimony.44
We conclude that there is no reasonable probability that
but for Duncan’s counsel’s questions regarding “morphing,”
Duncan would have been acquitted. Duncan admitted that he
assaulted Langenegger and only disputed the reason for the
assault. The photograph of Langenegger had no bearing on
Duncan’s motivation for the assault. Therefore, the record
establishes that this instance of counsel’s conduct was not
prejudicial to Duncan.
(b) “Sex on a Sidewalk” Theory
Duncan complains that his attorney attempted to intro-
duce a “‘sex on a sidewalk’” theory45 at trial. Duncan claims
this theory was “unsupported” and “like the defense was
grasping at straws or throwing darts at a board to see what
sticks so to speak when taken with the morphing and other
things.”46 During the trial, Duncan’s counsel asked Adriano,
Langenegger, and Foo whether they saw what looked like sex
44 Brief for appellant at 34.
45 Id. at 35.
46 Id.

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on the sidewalk between Foo and Fendi Blu when Foo helped
put on Fendi Blu’s shoes, and they all denied that it looked
that way.
Once again, there is no reasonable probability that but for
this conduct, Duncan would have been acquitted. Duncan’s
counsel’s questions about “sex on a sidewalk” apparently
related to Adriano’s reason for engaging in an altercation with
Langenegger, which had no bearing on Duncan’s defense.
Duncan’s defense hinged on his claim that he had no idea why
Adriano was upset and that he never heard Adriano say any-
thing at all to Langenegger. Therefore, this claim is also refuted
by the record.
(c) Demeaning Statements
Duncan points to nine statements made by his counsel dur-
ing his closing argument that were “demeaning and disparaging
to the victim and the State’s witnesses.”47 He argues that his
counsel’s “illogical and/or demeaning theory of defense and
characterization of the victim and witnesses in this case” preju-
diced his defense.48 The statements he complains of include the
following: “[C]onsider the witnesses they are relying on. The
man in drag, another gay man that lived a lie until he was 28
[when he told his parents he is homosexual], a person who has
a political agenda”; and, “You got — their witnesses all were
involved and they’ve got gay agendas.”
Whether the State’s witnesses had “gay agendas” had no
bearing on Duncan’s motivation for the assault, which was
the issue in this case. Obviously, the jury did not believe
Duncan’s testimony that the assault had nothing to do with
anyone’s sexual orientation. We conclude that there is no
reasonable probability that but for Duncan’s counsel’s dis-
paraging statements, Duncan would have been acquitted. The
47 Id.
48 Id. at 37.

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record conclusively refutes that Duncan was prejudiced by his
counsel’s conduct.
VI. CONCLUSION
We conclude that there was sufficient evidence to prevent
a directed verdict on the enhancement element. We also con-
clude that the district court did not err in denying Duncan’s
requested jury instruction, because “sexual orientation” was a
matter of common understanding under the facts of this case.
We conclude further that the district court’s sentence was not
an abuse of discretion and that Duncan did not receive inef-
fective assistance of counsel. We therefore affirm Duncan’s
conviction and sentence.
Affirmed.