State v. McDaniel

part C, paragraph 5. The HAP contract clearly provides that an
owner is not eligible for housing assistance payments if it is in
breach of the HAP contract, and the record shows that Thirty
was in breach relative to the lease with Ray from the incep-
tion of the lease in that it charged her an additional $103 over
and above the $497 housing assistance payment agreed to by
the OHA and Thirty. Because Thirty was not eligible for the
housing assistance payments by virtue of its breach, the pay-
ments made by the OHA to Thirty were “overpayments” and
the entire amount of the overpayment was properly recouped
by the OHA under part B, paragraph 7f, of the HAP contract.
We find no error in the district court’s interpretation of the term
“overpayments” found in the HAP contract. Thirty’s arguments
to the contrary are without merit.
CONCLUSION
The district court correctly interpreted the HAP contract.
A ffirmed.
StAte of NebrASkA, Appellee , v.
turNer r. mcdANiel , AppellANt.
771 N.W.2d 173
Filed June 30, 2009. 	No. A-08-779.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, regarding which an appellate court is obligated to reach a conclu-
sion independent of the determination reached by the trial court.
2. ____: ____. 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
necessitating reversal.
3. 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.
4. Rules of Evidence. According to Neb. Rev. Stat. § 27-403 (Reissue 2008),
although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or mis-
leading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
STATe v. mcdANIeL 	725
Cite as 17 Neb. App. 725
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

5. Assault: Intent. A person commits the offense of assault in the first degree if he
intentionally or knowingly causes serious bodily injury to another person.
6. Trial: Waiver: Appeal and Error. The failure to make a timely objection waives
the right to assert prejudicial error on appeal.
7. Criminal Law: Trial: Evidence: Stipulations. Refusal of a trial court to accept
an offer by the defendant to stipulate to an essential element of the alleged
offense ordinarily constitutes no ground for a new trial.
8. Criminal Law. The State is allowed to present a coherent picture of the facts of
the crimes charged.
9. Criminal Law: Proof. A defendant’s tactical decision not to contest an essen-
tial element of the crime does not remove the prosecution’s burden to prove
that element.
10. Jury Instructions: Appeal and Error. The failure to object to a jury instruction
after it has been submitted to counsel for review precludes raising an objection on
appeal absent plain error.
11. Appeal and Error. Plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.
12. Jury Instructions: Appeal and Error. Although the Nebraska pattern jury
instructions are to be used whenever applicable, a failure to follow the pattern
jury instructions does not automatically require reversal.
13. Jury Instructions: Waiver. All jury instructions are to be in writing, unless the
written instruction is waived by counsel in open court.
14. Jury Instructions: Appeal and Error. Failure to reduce an instruction to writing
shall be error in the trial of the case, and sufficient cause for the reversal of the
judgment rendered therein.
15. ____: ____. In order to obtain relief concerning oral instructions, the appellant
must demonstrate that it was prejudiced by the trial court’s actions.
16. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective
assistance of counsel raised for the first time on direct appeal do not require
dismissal ipso facto; the determining factor is whether the record is sufficient to
adequately review the question.
17. Effectiveness of Counsel: Appeal and Error. When the issue of effectiveness
of counsel has not been raised or ruled on at the trial court level and the matter
necessitates an evidentiary hearing, an appellate court will not address the matter
on direct appeal.
18. ____: ____. To establish that he or she was denied effective assistance of counsel,
the defendant must show (1) that counsel was deficient, meaning that counsel did
not perform at least as well as a criminal lawyer with ordinary training and skill
in the area, and (2) that he or she was prejudiced by the actions or inactions of his
or her counsel by demonstrating with reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have been different.
19. ____: ____. The two-part test for ineffective assistance of counsel may be
addressed in any order; if it is easier to dispose of the ineffectiveness claim on
the ground of lack of sufficient prejudice, that course should be followed.
726 	17 NeBRASkA APPeLLATe RePORTS

Appeal from the district Court for Lancaster County: Jeffre
cheuvroNt, Judge. Affirmed.
Jeffery A. Pickens, of Commission on Public Advocacy, for
appellant.
Jon Bruning, Attorney General, erin e. Leuenberger, and
James d. Smith for appellee.
iNbody, Chief Judge, and SieverS and cASSel, Judges.
SieverS, Judge.
Turner R. mcdaniel appeals the decision of the district court
for Lancaster County which, after a jury trial, convicted him of
first degree assault, a Class III felony. mcdaniel was sentenced
to 8 to 14 years’ imprisonment. We affirm.
FACTUAL ANd PROCUdURAL BACkGROUNd
We begin with a brief summary of the factual and procedural
background at the outset, which will be supplemented as neces-
sary in our analysis.
After the downtown bars in Lincoln, Nebraska, closed in
the early morning hours of may 27, 2006, mcdaniel got into
a scuffle with Aaron Obermier. mcdaniel started to walk
away, but when Obermier continued making comments toward
mcdaniel, mcdaniel walked back to Obermier and punched
him in the head, although he testified that he did so because
he thought Obermier was about to hit him. Obermier fell back,
striking his head on the cement. Obermier suffered substantial
head and brain injuries and required a decompressive craniec-
tomy to relieve swelling in his brain. Obermier spent 10 days
in the hospital, 3 weeks at a rehabilitation hospital, and then
nearly a year in an assisted living facility.
mcdaniel was charged with assault in the first degree,
a Class III felony. Prior to trial, mcdaniel filed numerous
motions in limine. One such motion in limine sought to pro-
hibit any and all photographs depicting Obermier or his inju-
ries taken after the assault of may 27, 2006. Another motion
in limine sought to prohibit any evidence that Obermier suf-
fered “serious bodily injury,” in exchange for mcdaniel’s
STATe v. mcdANIeL 	727
Cite as 17 Neb. App. 725

stipulation that Obermier had sustained “serious bodily injury,”
an element of the charged offense. Both motions in limine
were overruled.
After a jury trial, mcdaniel was convicted of assault in the
first degree, a Class III felony. mcdaniel was sentenced to 8 to
14 years’ imprisonment. He now appeals with new counsel.
ASSIGNmeNTS OF eRROR
mcdaniel alleges that the district court erred in (1) giving
an erroneous “submission” instruction to the jury, in violation
of mcdaniel’s right to have his case decided by an impartial
and uncoerced jury; (2) giving the jury an erroneous instruction
after the jury announced it was at a stalemate and unable to
reach a verdict, thus violating mcdaniel’s right to have his case
decided by an impartial and uncoerced jury; and (3) refusing to
direct the prosecution to accept mcdaniel’s offer to stipulate
that Obermier suffered a serious bodily injury and, in violation
of Neb. Rev. Stat. § 27-403 (Reissue 2008), allowing the pros-
ecution to present evidence of Obermier’s injury. mcdaniel
also alleges that he was denied his right to effective assistance
of counsel because of his trial counsel’s failure to object to (1)
the erroneous jury instructions referenced above and (2) the
evidence concerning Obermier’s injury.
STANdARd OF ReVIeW
[1,2] Whether a jury instruction is correct is a question of
law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the
trial court. State v. Schmidt, 276 Neb. 723, 757 N.W.2d 291
(2008). All the jury instructions must be read together, and if,
taken as a whole, they correctly state the law, are not mislead-
ing, and adequately cover the issues supported by the pleadings
and the evidence, there is no prejudicial error necessitating
reversal. Id.
[3] 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 otherwise adversely
affected a substantial right of the appellant. State v. Welch, 275
Neb. 517, 747 N.W.2d 613 (2008).
728 	17 NeBRASkA APPeLLATe RePORTS

Claims of ineffective assistance of counsel raised for the
first time on direct appeal do not require dismissal ipso facto;
the determining factor is whether the record is sufficient to
adequately review the question. State v. Hubbard, 267 Neb.
316, 673 N.W.2d 567 (2004). When the issue has not been
raised or ruled on at the trial court level and the matter necessi-
tates an evidentiary hearing, an appellate court will not address
the matter on direct appeal. Id.
ANALYSIS
Evidence of Obermier’s Injuries.
[4] mcdaniel argues that the district court erred in refus-
ing to direct the prosecution to accept mcdaniel’s offer to
stipulate that Obermier suffered a serious bodily injury and
in turn by then allowing the prosecution to present evidence
of Obermier’s injury, in violation of § 27-403. Section 27-403
states: “Although relevant, evidence may be excluded if its pro-
bative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
[5] A person commits the offense of assault in the first
degree if he intentionally or knowingly causes serious bodily
injury to another person. Neb. Rev. Stat. § 28-308(1) (Reissue
2008). There was no dispute that mcdaniel intended to, and
did, hit Obermier. And mcdaniel was willing to stipulate that
Obermier suffered a serious bodily injury. mcdaniel simply
argued that he should not be held accountable, because he
acted in self-defense.
Prior to trial, mcdaniel filed motions in limine to prohibit
evidence of Obermier’s injuries, stating in one that he was will-
ing to stipulate that Obermier suffered “serious bodily injury”
as contemplated by § 28-308(1). However, the district court
overruled mcdaniel’s motions. during opening arguments, the
State discussed Obermier’s injuries and mcdaniel did not
object. during the testimony of a police officer, a picture of
Obermier lying on a stretcher and wearing a neck collar was
offered and received into evidence with mcdaniel’s counsel
affirmatively stating, “No objection.” A prosecution witness
STATe v. mcdANIeL 	729
Cite as 17 Neb. App. 725

testified, without objection, that when Obermier fell and hit
his head on the cement, “[h]e looked like he was kind of going
into a seizure, his eyes were rolled back.”
midway through trial, mcdaniel again offered to stipulate
as to medical testimony that Obermier was “seriously injured”
within the meaning of the charging statute, but the State was
not willing to stipulate to such fact and thereby dispense with
its evidence of such. mcdaniel then renewed his motion in
limine, which was overruled. Next, Obermier testified that he
remembers nothing between being with a friend on the night
of the incident and waking up in the hospital with the left side
of his head “missing.” He testified that a piece taken from his
skull was sewn into his abdomen and that he had to wear a hel-
met for protection for 8 to 12 months. Obermier testified that
he was at a rehabilitation hospital for 3 weeks and then spent
approximately 1 year in an assisted living facility. Obermier
testified that since the accident, he has had memory problems,
seizures, and no sense of taste or smell and that his hearing
on the left side has been affected. mcdaniel did not object to
this testimony from Obermier. A picture of Obermier with a
misshapen head was offered and received into evidence with
mcdaniel’s counsel stating, “No objection.”
dr. Reginald Burton, the trauma director and director of sur-
gical critical care at the hospital where Obermier was treated,
testified that when he arrived at the hospital, Obermier was
listed as “Category 1,” meaning that he had a life-threatening
injury. dr. Burton testified that Obermier’s initial CT scans
showed bleeding on both the outside and the inside of the
brain. A second CT scan showed increased swelling and shift,
so Obermier underwent a craniectomy. dr. Burton testified
that part of Obermier’s skull was removed to allow the brain
to swell and that that piece of skull was put in Obermier’s
abdomen to keep it sterile and alive so that it could be put
back into place later. dr. Burton testified that Obermier had
a tracheotomy and a feeding tube and that he was at the hos-
pital for approximately 10 days. After this testimony by dr.
Burton, mcdaniel renewed his objection to the use of evidence
and again offered to stipulate that Obermier suffered “serious
bodily injury.” The court overruled mcdaniel’s objection, and
730 	17 NeBRASkA APPeLLATe RePORTS

the State was not willing to stipulate. mcdaniel was allowed
a continuing objection, but it was overruled. Next, Obermier’s
CT scan images were offered and received into evidence with
mcdaniel’s counsel affirmatively stating, “I have no objection
to those exhibits.” And dr. Burton testified, without objection,
as to what the CT scans showed.
[6] Based on the foregoing account of how the evidence
of the injury was adduced, it is clear that mcdaniel did not
properly preserve the issue of allegedly wrongful admission of
the evidence of Obermier’s injuries for appeal. mcdaniel did
make two motions in limine, which were later renewed, to pre-
vent evidence of Obermier’s injuries, and those motions were
overruled. (We note that each time mcdaniel made a motion
in limine and offered to stipulate that Obermier had sustained
serious bodily injury, he cited to Old Chief v. United States,
519 U.S. 172, 117 S. Ct. 644, 136 L. ed. 2d 574 (1997), which
we will discuss shortly.) But when specific testimony regard-
ing Obermier’s injuries was offered, mcdaniel did not object.
Furthermore, when pictures of Obermier or his CT scans were
offered into evidence, mcdaniel specifically stated that he had
no objection to such exhibits. mcdaniel’s continuing objection
was not made until nearly the end of the State’s case, when
the nature and seriousness of the injury were already in evi-
dence. Thus, mcdaniel did not timely object to the evidence
relating to Obermier’s injuries. And “[t]he failure to make a
timely objection waives the right to assert prejudicial error on
appeal.” State v. Schreiner, 276 Neb. 393, 418, 754 N.W.2d
742, 762 (2008).
[7] even if mcdaniel had preserved the issue for appeal
by proper and timely objections, we would still find that this
assignment of error is without merit. “[R]efusal of a trial court
to accept an offer by the defendant to stipulate to an essential
element of the alleged offense ordinarily constitutes no ground
for a new trial.” State v. Perrigo, 244 Neb. 990, 1002, 510
N.W.2d 304, 312 (1994).
mcdaniel cites us to Perrigo, supra, and Old Chief, supra,
for the proposition that a court should require the State to
stipulate when the probative value of the evidence is out-
weighed by the danger of unfair prejudice. See, also, § 27-403.
STATe v. mcdANIeL 	731
Cite as 17 Neb. App. 725

However, mcdaniel reads Perrigo and Old Chief too broadly,
plus they are distinguishable in that both cases involved pos-
session of a firearm by a convicted felon. The stipulation
offered in those cases simply went to the defendant’s legal
status as a convicted felon. The U.S. Supreme Court found
that the general rule, that the State may choose its evidence,
does not apply to stipulations regarding prior felony convic-
tions, stating:
The most the jury needs to know is that the conviction
admitted by the defendant falls within the class of crimes
that Congress thought should bar a convict from pos-
sessing a gun, and this point may be made readily in a
defendant’s admission and underscored in the court’s jury
instructions. Finally, the most obvious reason that the
general presumption that the prosecution may choose its
evidence is so remote from application here is that proof
of the defendant’s status goes to an element entirely out-
side the natural sequence of what the defendant is charged
with thinking and doing to commit the current offense.
Proving status without telling exactly why that status was
imposed leaves no gap in the story of a defendant’s subse-
quent criminality, and its demonstration by stipulation or
admission neither displaces a chapter from a continuous
sequence of conventional evidence nor comes across as
an officious substitution, to confuse or offend or pro-
voke reproach.
. . . What we have said shows why this will be the
general rule when proof of convict status is at issue, just
as the prosecutor’s choice will generally survive a [Fed.
R. evid.] 403 analysis when a defendant seeks to force
the substitution of an admission for evidence creating a
coherent narrative of his thoughts and actions in perpe-
trating the offense for which he is being tried.
Old Chief v. United States, 519 U.S. 172, 190-92, 117 S. Ct.
644, 136 L. ed. 2d 574 (1997). Thus, the “forced acceptance”
of a stipulation of convicted felon status is a narrow excep-
tion to the general rule that the State is allowed to choose how
it proves the elements of the charges it has lodged against
the defendant.
732 	17 NeBRASkA APPeLLATe RePORTS

[8] “The State is allowed to present a coherent picture of
the facts of the crimes charged.” State v. McPherson, 266
Neb. 734, 743, 668 N.W.2d 504, 513 (2003). And this notion
of course extends to mcdaniel’s self-defense claim, which
has the following elements: (1) The belief that force is neces-
sary must be reasonable and in good faith, (2) the force must
be immediately necessary, and (3) the force used must be
justified under the circumstances. See State v. Graham, 234
Neb. 275, 450 N.W.2d 673 (1990). depriving the jurors of
knowledge of the nature of the injury leaves them to specu-
late about these aspects of self-defense upon which they were
instructed. On the other hand, knowing what happened and
the result thereof makes for a “coherent picture” of the State’s
case as well as being significant with respect to the claim
of self-defense.
[9] The dissent in Old Chief, supra, sets out an additional
rationale behind this general rule that the State need not
accept stipulations:
The Constitution requires a criminal conviction to rest
upon a jury determination that the defendant is guilty
of every element of the crime of which he is charged
beyond a reasonable doubt. . . . [A] defendant’s tacti-
cal decision not to contest an essential element of the
crime does not remove the prosecution’s burden to prove
that element. . . .
. . . The usual instruction regarding stipulations in a
criminal case reflects as much: “When the attorneys on
both sides stipulate or agree as to the existence of a fact,
you may accept the stipulation as evidence and regard that
fact as proved. You are not required to do so, however,
since you are the sole judge of the facts.”
519 U.S. at 199-200 (O’Connor, J., dissenting; Rehnquist, C.J.,
and Scalia and Thomas, JJ., join).
Whether Obermier suffered a serious bodily injury is a mate-
rial element which the State had to prove beyond a reasonable
doubt. And Obermier’s injury was part of the natural sequence
of events relating to the assault—as opposed to felon status,
where the specifics of the previous felony are unrelated to
the current charge. Thus, the State was entitled to choose its
STATe v. mcdANIeL 	733
Cite as 17 Neb. App. 725

evidence and “present a coherent picture of the facts of the
crimes charged.” See McPherson, 266 Neb. at 743, 668 N.W.2d
at 513. The State was not required to stipulate to Obermier’s
injuries, and thus, the district court did not err by not requiring
the State to enter into the stipulation and forgo introduction of
evidence of the nature and extent of the injury. This assignment
is without merit.
Jury Instruction No. 15—“Submission” Instruction.
[10,11] mcdaniel alleges that the district court erred in
giving an erroneous “submission” instruction to the jury, in
violation of mcdaniel’s right to have his case decided by an
impartial and uncoerced jury. At the core of this argument is
instruction No. 15, which stated:
This case is now ready to be submitted to you for your
consideration. As I said to you at the beginning of the
trial, it is your duty to determine what the facts are. You
must approach this task with open minds - consulting with
one another, freely and honestly exchanging your views
concerning this case, and respectfully considering the
views of the other jurors. do not hesitate to re-examine
your own views and to change your minds, if reason and
logic so dictate.
When you get to the jury room, the first thing you must
do is select one of you to be foreman or forewoman, the
person who will preside over your deliberations. It is the
foreman or forewoman’s job to see that a verdict is fairly
reached and that each juror has a chance to speak fully
and freely on the issues in this case.
Your verdict must be unanimous and will be signed by
your foreman or forewoman only.
. . . .
When each of you has agreed upon a verdict, your
foreman or forewoman will fill in the verdict form, sign
and date it.
At the instruction conference, prior to instruction of the jury,
mcdaniel did not object to instruction No. 15. And the failure
to object to a jury instruction after it has been submitted to
counsel for review precludes raising an objection on appeal
734 	17 NeBRASkA APPeLLATe RePORTS

absent plain error. Humphrey v. Nebraska Public Power Dist.,
243 Neb. 872, 503 N.W.2d 211 (1993). Therefore, we simply
review the instruction for plain error. Plain error may be found
on appeal when an error unasserted or uncomplained of at
trial, but plainly evident from the record, prejudicially affects
a litigant’s substantial right and, if uncorrected, would result
in damage to the integrity, reputation, and fairness of the judi-
cial process. State v. Barfield, 272 Neb. 502, 723 N.W.2d 303
(2006), disapproved on other grounds, State v. McCulloch, 274
Neb. 636, 742 N.W.2d 727 (2007).
[12] Instruction No. 15 differs from the pattern instruction
NJI2d Crim. 9.0, “Submission to the Jury,” because instruc-
tion No. 15 did not include the following sentence thereof:
“But do not surrender your honest conviction as to the weight
or effect of the evidence solely because of the opinion of
the other jurors or for the mere purpose of returning a ver-
dict.” However, the Supreme Court has said, “Although we
have stated that the Nebraska pattern jury instructions are
to be used whenever applicable, we have recognized that a
failure to follow the pattern jury instructions does not auto-
matically require reversal.” State v. Fischer, 272 Neb. 963,
974, 726 N.W.2d 176, 184 (2007). Instruction No. 15 does
not expressly encourage jurors to change their minds, as
mcdaniel argues; rather, the instruction clearly states that
each juror should be allowed to speak freely and fully and
that jurors may change their minds “if reason and logic so
dictate.” Given this language, we conclude that while pattern
instruction NJI2d Crim. 9.0 should ordinarily be used, the
instruction given in this case embodies the concepts found
therein. Instruction No. 15 did not misstate the law; nor is it
misleading. See State v. Schmidt, 276 Neb. 723, 757 N.W.2d
291 (2008). As a result, we find that the instruction as given
did not constitute plain error.
Supplemental Jury Instruction Upon Jury Stalemate.
mcdaniel argues that the district court erred in giving the
jury an erroneous instruction after the jury foreperson informed
the court that the jury was at a “stalemate” and unable to reach
a verdict. mcdaniel argues that the trial court’s response to the
STATe v. mcdANIeL 	735
Cite as 17 Neb. App. 725

jury, given orally, violated mcdaniel’s right to have his case
decided by an impartial and uncoerced jury.
After being informed that the jury was at a stalemate, coun-
sel for the defense and the State discussed a supplemental
instruction with the court. The jury was brought back into the
courtroom and orally instructed as follows:
THe COURT: Okay. I know that — I’m sure that all
of you have worked very hard to try to reach a verdict
in this case but apparently you have not been able or not
been successful.
If you are not able to reach a verdict in the case, it
is possible that the case would be tried again. There are
two things that [the jurors] can do and they can agree
on a verdict or disagree on what the facts of the case
may actually be. Hopefully, there is nothing to disagree
about on the law. The law is as I have stated it to you and
instructed you. If you have any disagreements or ques-
tions about the law, I may be able to clarify those, if you
should submit a written question to me other than the
one you submitted before. Any issues on the law should
be my problem, not yours. If you disagree over what the
evidence showed, then only you can resolve that conflict,
if it is to be resolved.
I am going to ask and, frankly, we are not going to hold
you hostage or — forever. But I am going to ask you to
return to the jury room and go over the evidence some
more to see if you can reach a verdict. If you find after
this short explanation by me that you are unable to reach a
verdict, then if you would again let [the bailiff] know.
So I am going to ask you to do that and you are
excused and you may return to the jury room.
Again, mcdaniel did not object to the supplemental instruc-
tion either outside or in the presence of the jury. And “[t]he
failure to make a timely objection waives the right to assert
prejudicial error on appeal.” State v. Schreiner, 276 Neb. 393,
418, 754 N.W.2d 742, 762 (2008). Therefore, as with the other
instruction discussed above, we simply review the instruction
for plain error.
736 	17 NeBRASkA APPeLLATe RePORTS

[13-15] First, we note that all jury instructions are to be in
writing, unless the written instruction is waived by counsel in
open court. Neb. Rev. Stat. § 25-1111 (Reissue 2008). And
failure to reduce the instruction to writing “shall be error in
the trial of the case, and sufficient cause for the reversal of the
judgment rendered therein.” Neb. Rev. Stat. § 25-1115 (Reissue
2008). However, in order to obtain relief concerning oral
instructions, the appellant must demonstrate that it was preju-
diced by the trial court’s actions. Shipler v. General Motors
Corp., 271 Neb. 194, 710 N.W.2d 807 (2006). mcdaniel
argues that he was prejudiced only because the district court’s
instruction and explanation were incorrect and tended to coerce
dissenting jurors into agreeing with the majority for the sake of
reaching a verdict. He does not point to prejudice by virtue of
the fact that the instruction was given orally.
In support of his claim of prejudice, mcdaniel argues that
this instruction given by the district court was improper because
it was similar to an “Allen charge.” The Allen charge is a well-
known and discussed supplemental instruction which tells a
deadlocked jury, in effect,
“that in a large proportion of cases absolute certainty
could not be expected; that although the verdict must
be the verdict of each individual juror, and not a mere
acquiescence in the conclusion of his fellows, yet they
should examine the question submitted with candor and
with a proper regard and deference to the opinions of
each other; that it was their duty to decide the case if
they could conscientiously do so; that they should lis-
ten, with a disposition to be convinced, to each other’s
arguments; that, if much the larger number were for
conviction, a dissenting juror should consider whether
his doubt was a reasonable one which made no impres-
sion upon the minds of so many men, equally honest,
equally intelligent with himself. If, upon the other hand,
the majority was for acquittal, the minority ought to ask
themselves whether they might not reasonably doubt the
correctness of a judgment which was not concurred in by
the majority.”
STATe v. mcdANIeL 	737
Cite as 17 Neb. App. 725

State v. Garza, 185 Neb. 445, 447, 176 N.W.2d 664, 665-66
(1970) (quoting Allen v. United States, 164 U.S. 492, 17 S. Ct.
154, 41 L. ed. 528 (1896)). The purpose of an Allen charge is
to direct an agreement among jurors, be it acquittal or convic-
tion, and is thus coercive, and its use has been long rejected
in Nebraska. See Potard v. State, 140 Neb. 116, 299 N.W. 362
(1941). In Garza, supra, the Supreme Court said that the deter-
mining factor concerning supplemental charges to deadlocked
juries was whether the instruction tended to coerce a dissenting
juror or jurors.
Unlike in other cases, such as Garza, supra, the district court
here did not know how the jury was split; nor did it direct its
instructions to the minority. Instead, the district court directed
the jurors to simply continue deliberations to see if they could
reach a verdict. In no way did the district court instruct them
that they had to reach a verdict. Additionally, while the court
told the jurors that if they could not reach a verdict, then it
was possible the case could be tried again, that phrase was
discussed with trial counsel and mcdaniel’s counsel wanted it
in the instruction. The district court’s supplemental instruction
was not plain error and did not prejudice mcdaniel.
mcdaniel also argues that the supplemental instruction con-
tradicted the previous written instructions. Instruction No. 1
stated: “It now becomes my duty to instruct you in the law.
All questions of fact are to be decided by you, the jury, and
to these facts you will apply the law given to you in all these
instructions, even though you believe the law should be other-
wise.” And the supplemental instruction stated:
The law is as I have stated it to you and instructed you.
If you have any disagreements or questions about the
law, I may be able to clarify those, if you should submit
a written question to me other than the one you submit-
ted before. Any issues on the law should be my prob-
lem, not yours. If you disagree over what the evidence
showed, then only you can resolve that conflict, if it is to
be resolved.
Both instructions state that the judge will instruct on the law
and that the jury is the fact finder. When read together, the
instructions state that the jury is to apply the law, as given
738 	17 NeBRASkA APPeLLATe RePORTS

by the court, to the facts. We find no contradiction between
instruction No. 1 and the supplemental instruction.
In summary, although the supplemental instruction should
have been written rather than oral, mcdaniel is prejudiced
thereby only if the instruction was improper. We have reviewed
the instruction for plain error, given the lack of an objection
thereto, and we do not find plain error, for the reasons detailed
above. This assignment of error is without merit.
Ineffective Assistance of Counsel.
mcdaniel argues that he was denied his right to effective
assistance of counsel because of his trial counsel’s failure to
object to (1) the erroneous jury instructions referenced above
and (2) the evidence concerning Obermier’s injury.
[16,17] Claims of ineffective assistance of counsel raised
for the first time on direct appeal do not require dismissal ipso
facto; the determining factor is whether the record is sufficient
to adequately review the question. State v. Hubbard, 267 Neb.
316, 673 N.W.2d 567 (2004). When the issue has not been
raised or ruled on at the trial court level and the matter necessi-
tates an evidentiary hearing, an appellate court will not address
the matter on direct appeal. Id.
[18,19] The Nebraska Supreme Court has adopted the
two-part test for proving a claim of ineffective assistance of
counsel, as set forth by the U.S. Supreme Court in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. ed. 2d
674 (1984). See State v. Nielsen, 243 Neb. 202, 498 N.W.2d
527 (1993). To establish that he or she was denied effective
assistance of counsel, the defendant must show that counsel
was deficient, meaning that counsel did not perform at least
as well as a criminal lawyer with ordinary training and skill
in the area. See Strickland, supra. Second, the defendant
must make a showing that he or she was prejudiced by the
actions or inactions of his or her counsel by demonstrating
with reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been
different. See id. The two-part test for ineffective assistance
of counsel may be addressed in any order. See Nielsen, supra.
If it is easier to dispose of the ineffectiveness claim on the
STATe v. mcdANIeL 	739
Cite as 17 Neb. App. 725

ground of lack of sufficient prejudice, that course should be
followed. Id.
With respect to the issue of trial counsel’s failure to timely
object to evidence of the nature and extent of the injury suf-
fered by Obermier on the ground that the trial court should
have made the State accept the stipulation, we have already
found that any such objections, even if timely made, would
have been properly overruled. Thus, the record is adequate to
review and resolve this claim. mcdaniel was not prejudiced,
and this claim of ineffectiveness of trial counsel is resolved
against mcdaniel.
With respect to the issues of the jury instructions and trial
counsel’s failure to object to them, while questions of counsel’s
trial tactics may be involved and such are not in this record, we
find that the record before us is adequate to address such claims
on the prejudice prong of the test for ineffective assistance of
counsel. Given our resolution of the jury instruction issues
above, it naturally follows that mcdaniel was not prejudiced
by any shortcoming of trial counsel concerning the instruction.
Thus, this claim of ineffectiveness is without merit.
CONCLUSION
For the reasons stated above, we find that the State was not
required to stipulate to the nature or seriousness of Obermier’s
injuries. Furthermore, we find no plain error with regard to
either written instruction No. 15 or the supplemental instruc-
tion as given to the jury.
The record is sufficient for us to determine that mcdaniel
was not deprived of effective assistance of counsel concern-
ing the admission of the evidence of the nature and extent of
the injury suffered by Obermier, that any unmade objections
to such evidence would have been without merit, and that as
a result, mcdaniel could not have been prejudiced and this
ineffectiveness claim is without merit. We find that the record
is sufficient to address trial counsel’s alleged ineffectiveness
at this time with respect to the jury instructions and that such
claims fail for lack of prejudice. Therefore, we affirm the con-
viction and sentence.
A ffirmed.
740 	17 NeBRASkA APPeLLATe RePORTS