State v. Robinson

behavior, but also a failure to understand and appreciate the
legal import of his actions.
Finally, we note that mitigating circumstances do exist. The
record shows Koenig’s cooperation during the disciplinary
proceeding, his continuing commitment to the legal profession,
and the lack of evidence of any harm to clients.
Based upon a consideration of all of the aggravating and
mitigating circumstances in the present case, we conclude that
Koenig should be and hereby is suspended from the practice of
law for 120 days, effective immediately.
CONCLUSION
It is the judgment of this court that Koenig be suspended
from the practice of law for a period of 120 days, effective
immediately. Koenig shall comply with Neb. Ct. R. § 3-316
and, upon failure to do so, shall be subject to a punishment for
contempt of this court. At the end of the 120-day suspension
period, Koenig may apply to be reinstated to the practice of
law, provided that he has demonstrated his compliance with
§ 3-316 and further provided that the Counsel for Discipline
has not notified this court that Koenig has violated any disci-
plinary rule during his suspension.
Judgment of suspension.
C onnolly, J., not participating.
state of nebraska , appellee , v.
andre d. robinson, appellant.
769 N.W.2d 366
Filed July 31, 2009. 	No. S-08-433.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
2. Convictions: Evidence: Appeal and Error. Regardless of whether the evi-
dence is direct, circumstantial, or a combination thereof, an appellate court, in
212 	278N eBRASKAR epORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

reviewing a criminal conviction, does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence.
3. Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A
claim of ineffective assistance of counsel need not be dismissed merely because
it is made on direct appeal. The determining factor is whether the record is suf-
ficient to adequately review the question.
4. Trial: Evidence: Appeal and Error. If a matter has not been raised or ruled on
at the trial level and requires an evidentiary hearing, an appellate court will not
address the matter on direct appeal.
5. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
6. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
7. 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.
8. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an abuse of judi-
cial discretion.
9. Witnesses: Juries: Appeal and Error. The credibility and weight of witness
testimony are for the jury to determine, and witness credibility is not to be
reassessed on appellate review.
Appeal from the District Court for Douglas County: gregory
m. sChatz, Judge. Affirmed.
Thomas J. Garvey for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
heaviCan, 	C.J., 	Wright, 	C onnolly, 	gerrard, 	stephan,
mCC ormaCk, and miller-lerman, JJ.
miller-lerman, J.
NATURe OF CASe
Andre D. Robinson appeals his conviction and sentence for
knowing or intentional child abuse resulting in death. Robinson
asserts primarily that there was insufficient evidence to sup-
port his conviction and that his sentence of life imprisonment
imposed by the district court for Douglas County is excessive.
We affirm Robinson’s conviction and sentence.
STATe v.ROBINSON 	213
Cite as 278 Neb. 212

STATeMeNT OF FACTS
Late in the afternoon of November 24, 2006, 22-month-
old Branesha Thomas was brought into a hospital emergency
room in Omaha, Nebraska, by her mother, Tanisha Turner, and
Robinson. Turner was a girlfriend of Robinson’s, but Robinson
was not Branesha’s father. When Branesha was brought into
the emergency room, she was not breathing and she had mul-
tiple bruises on her head, face, and chest. Robinson told emer-
gency room personnel that Branesha had fallen off her bed
earlier in the day and seemed to be doing fine but that later that
afternoon, she stopped breathing. Lifesaving measures were
attempted, but Branesha could not be revived.
police detective Marlene Novotny arrived at the hospital to
investigate the circumstances of Branesha’s death. Robinson
had left the hospital by the time Novotny arrived, but Novotny
spoke to Turner. Novotny asked Turner what had happened
during the day, and Turner provided little detail other than to
say that she had spent the day with a person named “eric” and
that they had gone to the Chucke . Cheese’s and Burger King
restaurants. Novotny continued her investigation by obtaining
security video from the hospital to determine who brought
Branesha to the hospital.
Novotny interviewed Turner again the next day. Turner told
Novotny that she had lied about her whereabouts on the pre-
vious day; that she had actually spent the afternoon with her
friend, Raeven Ammons; and that she had left Branesha with
Robinson during that time. Turner identified Robinson as the
man in photographs taken from the hospital security video that
showed Robinson carrying Branesha into the hospital. Turner
agreed to make a recorded telephone call to Robinson to dis-
cuss the events of the previous day.
In the call, Turner asked Robinson what had happened to
Branesha. Robinson told Turner that Branesha fell off a bed
on which she had been jumping. He denied that he hit her or
otherwise caused the bruising. Robinson said that Branesha
threw up after she fell but that she later went with Robinson
and his daughter to Chucke . Cheese’s and to Burger King and
that she ate some food. Robinson said that Branesha appeared
to be fine until she fell asleep in Robinson’s car on the way to
214 	278N eBRASKAR epORTS

pick up Turner. Robinson asked Turner whether she told her
mother and police investigators that she had been with him or
whether she told them she was with “eric,” as they had agreed.
Robinson indicated concern that there might be child abuse
charges and that he did not want to say that Turner was not
with Branesha during the day; instead, he wanted to say that
both he and Turner were with her when she fell.
Robinson was later arrested and charged with knowing or
intentional child abuse resulting in death, a Class IB felony
under Neb. Rev. Stat. § 28-707(6) (Reissue 2008).
At trial, Turner testified as follows: On November 24, 2006,
Robinson called her and said that he wanted to take Branesha
and his daughter to Chucke . Cheese’s. Robinson picked up
Turner and Branesha at around 1:30 p.m. He dropped Turner
off at her friend Ammons’ home, and Branesha stayed with
Robinson. Turner spent the afternoon with Ammons. During
that time, Turner received three telephone calls from Robinson.
In the first call, Robinson told Turner that Branesha had been
jumping on the bed and fell off the bed but that she was doing
fine. In the second call, Robinson told Turner that Branesha
had thrown up but that she was still doing fine. In the final call,
Robinson told Turner that he was coming to Ammons’ house to
pick her up.
Turner further testified that Robinson arrived to pick her up
at around 5:30 p.m. When Turner went to the car, Ammons
came with her to see Branesha. Branesha appeared to be sleep-
ing; Ammons tried to wake her but could not. Ammons went
back into her house, and Robinson and Turner drove away.
Turner noticed that Branesha still appeared to be sleeping, and
Robinson told her that she had been sleeping and would not
wake up since they had set out to pick Turner up. Turner tried
to wake Branesha, but she did not respond. Turner realized that
something was wrong with Branesha when she felt that her
hand was cold, and she asked Robinson what had happened. He
responded that nothing had happened and that Branesha was
fine and was just sleeping. Turner told Robinson to take her
to the hospital; when they arrived, Robinson carried Branesha
into the emergency room. Robinson stayed with Turner at the
hospital for about 30 minutes but left before Turner’s mother
STATe v.ROBINSON 	215
Cite as 278 Neb. 212

and grandmother arrived. After being at the hospital for a while
longer, Turner was informed that Branesha had died.
Turner testified that when she was questioned by police
at the hospital, she had lied when she told them that she and
“eric” had been with Branesha all day, because she did not
want her mother, who did not approve of her relationship with
Robinson, to know that she had left Branesha with Robinson.
When she talked with police the next day, she decided to tell
the truth, because she realized that something had happened
while Branesha was with Robinson.
Ammons testified at trial that around 1 or 2 p.m. on November
24, 2006, she received a call from Turner, who wanted to come
for a visit. Robinson dropped Turner off about a half hour later.
Turner spent the afternoon with Ammons and received some
telephone calls during that time. When Robinson came to pick
Turner up later in the afternoon, Ammons went to the car to
see Branesha and noticed that although Branesha’s eyes were
open, “her face was just blank.” Ammons shook Branesha, but
she did not respond. Ammons told Turner and Robinson that
something was wrong with Branesha.
Turner’s mother, Wanda Wilson, testified at trial that Turner
and Branesha lived with her and that on the morning of
November 24, 2006, she saw Branesha and did not observe any
injuries. Wilson went shopping at around 1 p.m., and at around
2 p.m., she received a call from Turner saying that she and a
friend were taking Branesha to Chucke . Cheese’s. Wilson did
not hear from Turner again until around 6 p.m. when she was
called to the hospital, where Wilson later learned that Branesha
had died. Wilson was allowed to see Branesha’s body, and she
observed bruises on Branesha’s head and chest that had not
been there that morning.
Novotny, the police detective who questioned Turner on
November 24 and 25, 2006, testified at trial regarding her
investigation. During her testimony, the State offered into evi-
dence the tape recording and a transcript of the November 25
telephone conversation between Turner and Robinson. The tape
recording was played for the jury, and jurors were provided
a transcript and allowed to read along as the tape recording
was played.
216 	278N eBRASKAR epORTS

Other witnesses called by the State included a nurse and a
paramedic who were on duty when Branesha was brought into
the emergency room. The State also presented the testimony of
a forensic pathologist who performed an autopsy on Branesha’s
body. The pathologist observed multiple bruises, abrasions,
and contusions on her head, chest, and abdomen, as well as
a fractured rib and a fractured humerus bone. The pathologist
opined that the injuries were caused by blunt force trauma.
The pathologist also observed that there had been significant
hemorrhaging in the brain and opined that the hemorrhage was
caused by recent severe head trauma. The pathologist observed
hemorrhaging in other internal organs, including the liver, pan-
creas, and heart. The pathologist noted that the stomach was
empty, which would be inconsistent with her having eaten food
a couple hours earlier unless she had vomited after eating such
food. The pathologist opined in conclusion that the cause of
Branesha’s death was trauma to the head and abdomen and the
resulting loss of blood and, further, that the injuries could not
have been the result of a single fall from a bed.
Finally, the State presented the testimony of a pediatric phy-
sician who reviewed photographs and the post mortem exami-
nation report on Branesha. The pediatric physician opined
that her injuries were nonaccidental; that immediately after
sustaining such injuries, a “child would be inconsolable, would
be screaming, crying,” and “as a caregiver, you would be pan-
icked to witness this child”; and that a child would have gone
unconscious “at the most 15 to 20 minutes” after sustaining
such injuries. The physician further opined that the injuries
could not have been the result of a single fall from a bed and
instead were caused by multiple instances of blunt trauma such
as punching or kicking. The physician opined in conclusion
that after a child received such injuries, a reasonable care-
giver would not be able to say that the child was in a normal
condition and that if the child had received medical attention
immediately after receiving the injuries, the child’s life could
possibly have been saved.
After the State rested its case, Robinson moved for dismissal
on the basis that the State failed to prove its case. The court
denied the motion.
STATe v.ROBINSON 	217
Cite as 278 Neb. 212

Robinson testified in his own defense. He testified that on
the morning of November 24, 2006, he spoke with Turner and
that she stated she planned to have Ammons babysit Branesha
and then would spend the night with Robinson. Robinson next
spoke with Turner shortly after noon, and she told him that
he could pick her up because her mother had left. Robinson
picked up Turner around 1:30 p.m., and Turner brought
Branesha with her. The three went to Robinson’s apartment,
where Robinson allowed Branesha to play with some of his
daughter’s toys. Robinson testified that Turner was with him
and that he was never alone with Branesha. At one point,
Turner called to Robinson from another room and told him
to bring in some paper towels because Branesha had thrown
up. Around 3 p.m., Robinson took Turner and Branesha to
Ammons’ house and left them both there. Robinson testified
that there was no plan for him to take Branesha to Chucke .
Cheese’s and that instead, the plan was that Turner would
spend time at Ammons’ house before returning to his apart-
ment for the night, leaving Branesha with Ammons. Robinson
testified that he and Turner did not want her mother to know
that she was with him, because Turner’s mother did not
approve of him.
Robinson testified that he next spoke to Turner when he
called after 5 p.m. to see if she was ready for him to pick
her up. She was, and he went to Ammons’ house to pick her
up. When he arrived, Turner and Ammons both came out and
Ammons was carrying Branesha, who appeared to be sleep-
ing. Turner told Robinson that Ammons would not be able to
watch Branesha and that she would try to find another baby-
sitter. As they drove to Robinson’s home, Turner stated that
Branesha was not breathing. Robinson attempted to wake her,
but she did not respond, and so he drove her to the hospital.
On the way to the hospital, he asked Turner what had hap-
pened and she said that Branesha had fallen and hit her head
at Ammons’ house. Robinson testified that Turner asked him
to say that he had taken Branesha and his daughter to Chuck
e. Cheese’s, because Turner was worried that she would be in
trouble if it was learned that she allowed Branesha to fall and
hit her head.
218 	278N eBRASKAR epORTS

Robinson testified that at the hospital, he decided that
Turner’s mother should be called. Turner asked him not to
identify himself to her mother because of her mother’s dislike
for him and instead to say that his name was “eric.” Robinson
testified that Turner asked him to leave the hospital before
her mother arrived and that he complied. Turner called him
the night of November 24, 2006, and told him that Branesha
had died and that the police were investigating her for child
neglect. Turner asked him to tell anyone who questioned him
that Branesha was with him and not with Turner when she fell.
Robinson agreed to tell the police whatever Turner wanted him
to say. Robinson testified that Turner asked him to stick with
that story the next time she called him and that that was the
reason he said the things he did during the telephone conversa-
tion on November 25.
Robinson also presented the testimony of Robert Louis
Butler, a police officer who took part in the investigation
of Branesha’s death. Robinson questioned Butler regarding,
inter alia, an interview Butler conducted of Robinson dur-
ing the investigation. Butler testified, inter alia, that during
the interview, Robinson admitted that he had accidentally
kicked Branesha.
At the jury instruction conference, the State objected “to
giving the instruction on the jury making a finding of free and
voluntariness” because the State “did not offer the statement;
the defense did.” Robinson’s counsel stated that he did not
object, and the court therefore stated that the instruction would
be removed. The record on appeal does not contain instructions
that were proposed but not given, and there is no other indi-
cation in the record of the content of the instruction referred
to above or of the specific statement or statements to which
it pertained.
During jury deliberations, the jury foreperson sent a ques-
tion to the court regarding instruction No. 4, which set forth
the elements of the crime of knowing or intentional child abuse
resulting in death.p aragraph A(1) of the instruction required
that in order for the jury to find Robinson guilty, the State
must prove, inter alia, that Robinson “did cause or permitted
Branesha . . . to be placed in a situation that endangered her
STATe v.ROBINSON 	219
Cite as 278 Neb. 212

life or health or to be deprived of necessary care.” The jury
foreperson asked, “Can we conclude that the insertion of ‘or’
in the second to last line of the statement indicates that only
depriving of necessary care is needed to meet the criteria of
(1)?” The court held a hearing with counsel for the State and
Robinson present and stated on the record that counsel for both
parties “agreed that the question should be answered with the
word ‘yes.’” Counsel for both parties agreed on the record
that such statement was accurate, and the court stated that the
jury would be given a supplemental instruction that the answer
to the question was “yes.” The supplemental instruction does
not appear to have been given orally to the jury on the record;
instead, it appears that the supplemental instruction was given
to the jury in written form.
Shortly thereafter, the jury indicated that it had reached a
verdict. The jury entered a unanimous verdict that Robinson
was guilty of knowing and intentional child abuse resulting in
death. The court subsequently imposed a sentence of imprison-
ment for life.
Robinson filed a notice of appeal. The district court granted
Robinson’s request for new counsel on appeal.
ASSIGNMeNTS OFe RROR
Robinson asserts that (1) there was not sufficient evidence
to support his conviction, (2) he received ineffective assistance
of counsel because trial counsel failed to object to the removal
of the instruction regarding voluntariness of statements, (3)
the district court erred in giving the supplemental instruction
in response to the jury’s question, and (4) the district court
imposed a sentence that was excessive and disproportionate to
the crime and that constituted cruel and unusual punishment.
STANDARDS OF ReVIeW
[1,2] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Branch, 277 Neb. 738,
220 	278N eBRASKAR epORTS

764 N.W.2d 867 (2009). Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, an appel-
late court, in reviewing a criminal conviction, does not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Id.
[3,4] A claim of ineffective assistance of counsel need not
be dismissed merely because it is made on direct appeal. The
determining factor is whether the record is sufficient to ade-
quately review the question. State v. Davis, 276 Neb. 755, 757
N.W.2d 367 (2008). If a matter has not been raised or ruled on
at the trial level and requires an evidentiary hearing, an appel-
late court will not address the matter on direct appeal. Id.
[5-7] Whether jury instructions given by a trial court are
correct is a question of law. State v. Welch, 275 Neb. 517, 747
N.W.2d 613 (2008). When dispositive issues on appeal present
questions of law, an appellate court has an obligation to reach
an independent conclusion irrespective of the decision of the
court below. Id. 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. Id.
[8] Sentences within statutory limits will be disturbed by an
appellate court only if the sentences complained of were an
abuse of judicial discretion. State v. Branch, supra.
ANALYSIS
There Was Sufficient Evidence to Support Robinson’s
Conviction for Knowing or Intentional
Child Abuse Resulting in Death.
Robinson first asserts that the evidence was not sufficient
to support his conviction for knowing or intentional child
abuse resulting in death. We conclude that the evidence was
sufficient.
Robinson was convicted of a violation of § 28-707, which
provides that a person is guilty of child abuse “if he or she
knowingly, intentionally, or negligently causes or permits a
minor child to be . . . [p]laced in a situation that endangers his
or her life or physical or mental health [or to be d]eprived of
necessary . . . care.” Subsection (6) of the statute provides that
STATe v.ROBINSON 	221
Cite as 278 Neb. 212

child abuse is a Class IB felony “if the offense is committed
knowingly and intentionally and results in the death of such
child.” In this case, the State charged in the information that
Robinson committed the offense knowingly and intentionally
and that the offense resulted in Branesha’s death.
Through the testimonies of Turner, Turner’s mother, and
Ammons, the State presented evidence that Branesha was in
Robinson’s sole care on the afternoon of November 24, 2006,
that she showed no sign of injury prior to the time she was in
his sole care, and that Branesha suffered injuries during the
time she was in his sole care. Through the testimonies of medi-
cal personnel who treated or examined Branesha, the State also
presented evidence that Branesha suffered injuries such that it
would have been obvious to any person caring for her that she
needed immediate medical attention, that such injuries were
not incurred as a result of a fall from a bed but instead as a
result of multiple instances of blunt trauma such as kicking
or punching, and that Branesha was denied medical care long
enough that she died when, if timely treatment had been pro-
vided, she might have survived.
There was evidence that Robinson admitted to Butler that
he accidentally kicked Branesha. In addition, evidence that
Branesha was in Robinson’s sole care during the time she
suffered injuries was circumstantial evidence from which the
jury could have inferred that he caused the injuries. See State
v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003) (evidence
that defendant was sole adult in child’s presence at time child
sustained injuries was sufficient circumstantial evidence sup-
porting finding that defendant caused injuries). The jury could
have inferred that Robinson placed Branesha in a situation
that endangered her life or health when he either inflicted
the injuries or allowed the injuries to be inflicted on her, or
the jury could have found that Robinson deprived Branesha
of necessary care based on evidence that her injuries were
such that a reasonable person would have known she needed
immediate medical attention.e ither finding would support
a conviction for child abuse under § 28-707. The evidence,
including the pediatric physician’s testimony that Branesha’s
injuries were nonaccidental, also supported findings that the
222 	278N eBRASKAR epORTS

abuse was knowing or intentional and that the abuse resulted in
Branesha’s death, making the offense a Class IB felony under
§ 28-707(6). Because there was evidence to support such find-
ings, the evidence presented by the State supports Robinson’s
conviction for knowing or intentional child abuse resulting
in death.
Robinson argues that the evidence was not sufficient, because
the strongest evidence against him was faulty in certain respects.
He asserts that the most important pieces of evidence against
him were his two “confessions”—his admission to Butler that
he accidentally kicked Branesha and his statements in the
recorded telephone call with Turner in which he admitted that
Branesha was alone with him during the afternoon of November
24, 2006. These statements support a finding of guilt. Robinson
does not argue that these statements do not support his convic-
tion but instead argues that the court should have instructed the
jury to consider whether such statements were voluntary. This
argument is considered below in connection with Robinson’s
second assignment of error claiming ineffective assistance of
counsel wherein we conclude the record on direct appeal is not
sufficient to evaluate the claim.
Robinson further argues that other than his own statements,
the main evidence against him was the testimony of Turner and
Ammons, and he asserts both were “admitted liar[s].” Brief for
appellant at 19. He notes that Turner admitted that she lied in
her first statements to police after Branesha’s death and that
she lied to her mother by denying that she was spending time
with Robinson. Robinson notes that Ammons admitted that at
times she had lied by providing an alibi for Turner when Turner
was spending time with Robinson. Robinson urges this court to
“simply admit the incredulity of [Turner’s] and [Ammons’]
stor[ies].” Id.
[9] We have stated that the credibility and weight of wit-
ness testimony are for the jury to determine, and witness
credibility is not to be reassessed on appellate review. State
v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007). If the jury
believed Turner’s and Ammons’ testimony, such evidence sup-
ported Robinson’s conviction. Although there was also evi-
dence which might have called each witness’ credibility into
STATe v.ROBINSON 	223
Cite as 278 Neb. 212

question, that assessment was for the jury. Viewing the evi-
dence in the light most favorable to the State, it is clear that
the jury believed Turner’s and Ammons’ testimony and did not
believe Robinson’s testimony on matters where their testimo-
nies were in conflict. When reviewing a criminal conviction
for sufficiency of the evidence, we, as an appellate court, do
not pass on the credibility of witnesses, see State v. Branch,
277 Neb. 738, 764 N.W.2d 867 (2009). Including the testimo-
nies of Turner and Ammons, the jury, as the trier of fact, could
reasonably have found the essential elements of knowing or
intentional child abuse resulting in death beyond a reasonable
doubt based on the evidence.
We conclude that the evidence was sufficient to support
Robinson’s conviction for knowing or intentional child abuse
resulting in death.
The Record on Direct Appeal Is Not Sufficient to
Review Robinson’s Claim of Ineffective
Assistance of Counsel.
Robinson next asserts that he received ineffective assistance
of counsel. Robinson argues that he was provided ineffective
assistance when his trial counsel failed to object after the State
asked the court not to give a proposed instruction that the jury
should decide whether any confession Robinson made was
made knowingly and voluntarily. Because the proposed instruc-
tion is not included in the record on appeal, we conclude that
we cannot review Robinson’s claim of ineffective assistance of
counsel in this direct appeal.
We have stated that we need not dismiss an ineffective assist-
ance of counsel claim merely because a defendant raises it on
direct appeal. State v. Wabashaw, 274 Neb. 394, 740 N.W.2d
583 (2007). The determining factor is whether the record is
sufficient to adequately review the question. Id. If it requires
an evidentiary hearing, we will not address the matter on direct
appeal. Id.
We note that the proposed instruction that is the subject of
Robinson’s claim of ineffective assistance of counsel is not
included in the record on appeal. The only indication in the
record suggesting the content of the instruction is a statement
224 	278N eBRASKAR epORTS

at the instruction conference made by the prosecutor that the
State objected “to giving the instruction on the jury making
a finding of free and voluntariness.” Robinson concedes on
appeal that the proposed instruction is not in the record but
argues that we must assume that the proposed instruction was
based on the standard jury instruction on voluntary statements
(NJI2d Crim. 6.0). We are not prepared to make this assump-
tion. Further, because the proposed instruction is not included
in the record, we cannot be certain what statement or state-
ments by Robinson were the subject of the instruction, and we
therefore cannot determine whether Robinson was prejudiced
by his counsel’s purported failure to object to the removal of
the instruction. Finally, it is possible that defense counsel had a
strategic reason for not objecting to removal of the instruction
and such reasoning cannot be evaluated without an eviden-
tiary hearing.
We conclude that the record on direct appeal is not sufficient
to adequately review Robinson’s claim of ineffective assistance
of counsel.
The Supplemental Jury Instruction Was a Correct Statement
of Law, and Robinson Was Not Prejudiced
by the Giving of the Instruction.
Robinson next asserts that the district court erred in giving
a supplemental instruction in response to the jury’s question
regarding the instruction on the elements of the crime charged.
We conclude that the instruction was a correct statement of
the law and that Robinson was not prejudiced by the giving of
the instruction.
During jury deliberations, the jury foreperson sent a ques-
tion to the court regarding the instruction that set forth the
elements of knowing or intentional child abuse resulting in
death. The instruction stated that in order for the jury to find
Robinson guilty, the State must prove, inter alia, that Robinson
“did cause or permitted Branesha . . . to be placed in a situ-
ation that endangered her life or health or to be deprived of
necessary care.” The jury foreperson asked, “Can we conclude
that the insertion of ‘or’ in the second to last line of the state-
ment indicates that only depriving of necessary care is needed
STATe v.ROBINSON 	225
Cite as 278 Neb. 212

to meet the criteria of (1)?” After consulting with counsel for
both the State and Robinson, the court provided a supplemental
instruction to the jury stating that the answer to the question
was “Yes.”
Robinson argues on appeal that the court should have refused
to give a supplemental instruction, because the original instruc-
tion was a correct and adequate statement of law and did not
need expansion. Robinson also argues that under Neb. Rev.
Stat. § 25-1116 (Reissue 2008), the proper procedure would
have been to call the jury into open court and to tell it that it
had been given all the law necessary and that it should base its
decision on that law.
In State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542
(2007), the trial court informed the State and the defendant
in a telephonic hearing of questions asked by the jury and
of the court’s proposed responses. On appeal, we noted that
the defendant in Gutierrez failed to show how he was preju-
diced by the procedure used by the court for responding to
the jury’s question. With regard to the defendant’s objection
to the substance of the supplemental instruction, we noted in
Gutierrez that the same standards regarding an alleged errone-
ous jury instruction apply to a supplemental instruction. That
is, “the appellant has the burden to show that the questioned
instruction was prejudicial or otherwise adversely affected
a substantial right of the appellant.” 272 Neb. at 1024, 726
N.W.2d at 569.
We note in this case that Robinson’s counsel did not object
to the procedure and that counsel did not object to the con-
tent of the instruction, but instead agreed that it was correct.
Robinson does not frame this assignment of error as ineffective
assistance of counsel, and he does not appear to argue that the
supplemental instruction misstated the law. Instead, he argues
that the supplemental instruction was unnecessary because the
original instruction adequately stated the law. He argues that
he was prejudiced because the jury reached its verdict shortly
after it received the supplemental instruction; therefore, he
argues, the supplemental instruction prompted the jury to reach
a verdict to convict.
226 	278N eBRASKAR epORTS

even though the supplemental instruction may have assisted
the jury in reaching its decision, Robinson has not shown that
the instruction was prejudicial or otherwise adversely affected
his substantial rights. The supplemental instruction, when read
with the other jury instructions as a whole, was a correct
statement of law and was not misleading, and the fact that it
assisted the jury in reaching its verdict does not mean that it
caused the jury to reach its finding of guilt. The instruction was
not prejudicial.
Robinson has not shown that he was prejudiced by the sup-
plemental instruction or by the procedure used by the court to
respond to the jury’s question. We therefore conclude that the
court did not err in giving the supplemental instruction.
The Sentence Imposed by the District Court
Was Not Excessive and Was Not Cruel
and Unusual Punishment.
Finally, Robinson challenges his sentence in four assign-
ments of error that he argues as two and that we consider
together. He asserts that (1) the court imposed an excessive
sentence because it did not properly consider factors set forth
in case law and (2) the sentence constituted cruel and unusual
punishment because it was disproportionate to the crime. We
conclude that the sentence was not excessive and that it did not
constitute cruel and unusual punishment.
Robinson argues first that his sentence of life imprison-
ment is excessive because he is a young man and the sentence
imposed on him gives him no opportunity to rehabilitate him-
self. He notes that his criminal history was not extensive and
included no prior felony convictions. He also argues that the
court should have given him favorable consideration because
although he had a difficult childhood, he avoided joining a
gang or becoming involved in chemical dependency.
A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
court. State v. Kinkennon, 275 Neb. 570, 747 N.W.2d 437
(2008). Robinson was convicted of knowing or intentional
child abuse resulting in death, which is a Class IB felony under
STATe v.ROBINSON 	227
Cite as 278 Neb. 212

§ 28-707(6). A Class IB felony is punishable by a sentence of
imprisonment for a minimum of 20 years to a maximum of life.
Neb. Rev. Stat. § 28-105 (Reissue 2008). Therefore, Robinson’s
sentence is within statutory limits.
The State argues that although Robinson’s criminal history
did not include prior felonies, it is a lengthy history and shows
“a pattern of utter disregard for the law.” Brief for appellee at
28. The State also notes that although Robinson did not test
high for susceptibility to drugs and alcohol, he tested in the
high to very high risk category for criminal behavior, antisocial
behavior, and procriminal attitude. The State also emphasizes
the nature of the crime for which Robinson was convicted—the
beating and brutalization of a small child—and argues that any
redeeming qualities Robinson may have pale in comparison to
such a crime.
At the sentencing hearing, the court also focused on the
nature of the crime. The court noted that the testimony of the
pathologists regarding the nature and extent of Branesha’s inju-
ries indicated that she suffered and that the injuries were not
the result of an accident or a single blow, but instead “several
strikes” involving “a horrific amount of force consistent with
kicks or punches as if the baby were stomped on.” The court
also noted that Robinson accepted no responsibility for the
crime and concluded that any sentence “less than the maxi-
mum allowed by law would promote disrespect for the law and
depreciate the seriousness of the offense.”
Given the reasons set forth by the State and by the district
court, we conclude that the sentence of life imprisonment was
not an abuse of discretion.
Robinson separately argues that his sentence is dispropor-
tionate to the crime and therefore violates federal and state
constitutional prohibitions against cruel and unusual punish-
ment. Robinson compares his case to other cases that he argues
involved similar crimes but in which the defendant was given a
less severe sentence. Although Robinson casts his arguments in
constitutional terms of cruel and unusual punishment, we find
that the arguments are in substance the same as his claims of
an excessive sentence.
228 	278N eBRASKAR epORTS

Robinson does not attack the facial validity of § 28-707(6),
which designates that the crime of knowing or intentional
child abuse resulting in death is a Class IB felony, or of
§ 28-105, which provides that a Class IB felony is punishable
by a sentence of imprisonment for a minimum of 20 years to
a maximum of life. He makes no substantive argument that
the designated range of punishment, including the maximum
punishment of life imprisonment, is so disproportionate to the
crime of knowing and intentional child abuse resulting in death
that the statutes on their face violate the constitutional prohibi-
tions against cruel and unusual punishment. Because Robinson
does not make a facial challenge to the statute, his argument
must be understood as a challenge to the statutes “as applied”
to him.
In a facial challenge, the defendant would argue that the
range of punishments assigned to a particular crime is dispro-
portionate to the range of actions that would meet the statutory
definition of the crime. However, in an “as applied” challenge,
like that advanced by Robinson in this case, the defendant
does not argue that the range of punishment is disproportion-
ate to the crime in general, but instead argues that his or her
specific punishment is disproportionate to his or her specific
crime. See State v. Brand, 219 Neb. 402, 404, 363 N.W.2d
516, 518 (1985) (distinguishing between cruel and unusual
punishment challenge “directed to the claim that the statute is
unconstitutional by its terms” and argument that “as applied
in this particular case,” sentence violates cruel and unusual
punishment clauses of U.S. and Nebraska Constitutions). We
conclude that Robinson’s “as applied” challenge based on
the cruel and unusual punishment clauses involves the same
considerations as his excessive claim. In both challenges, he
argues that his specific sentence is disproportionate to the
specific circumstances of his crime. For reasons discussed
above, wherein we concluded that Robinson’s sentence was
not excessive, we also conclude that his sentence was not
so disproportionate to his crime as to constitute cruel and
unusual punishment.
STATe v.ROBINSON 	229
Cite as 278 Neb. 212

We conclude that the sentence imposed by the district court
was not excessive and did not constitute cruel and unusual
punishment.
CONCLUSION
We conclude that the evidence was sufficient to support
Robinson’s conviction for knowing or intentional child abuse
resulting in death, that the record on direct appeal is not suf-
ficient to review Robinson’s claim of ineffective assistance of
counsel, that Robinson was not prejudiced by the supplemental
instruction to the jury, and that the sentence imposed by the
district court was not excessive and did not constitute cruel and
unusual punishment. We therefore affirm Robinson’s convic-
tion and sentence.
affirmed.
state of nebraska , appellee , v.
daunte l. goynes , appellant.
768 N.W.2d 458
Filed July 31, 2009. 	No. S-08-810.
1. Rules of Evidence: Appeal and Error. Where the Nebraskae vidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
2. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion
for mistrial is within the discretion of the trial court, and an appellate court will
not disturb the ruling on appeal in the absence of an abuse of discretion.
3. Self-Defense. To successfully assert a claim of self-defense as justification for
the use of force, the defendant must have a reasonable and good faith belief in
the necessity of such force and the force used must be immediately necessary and
must be justified under the circumstances.
4. Motions for Mistrial. The decision to grant a motion for mistrial is within the
trial court’s discretion.
5. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to
grant a mistrial for prosecutorial misconduct, the defendant must show that a
substantial miscarriage of justice has actually occurred.
6. Prosecuting Attorneys. When a prosecutor persists in questioning after the court
advises that the questions are not permitted, the prosecutor commits misconduct.
7. Prosecuting Attorneys: Motions for Mistrial. A prosecutor’s conduct does not
require a mistrial if it does not mislead or unduly influence the jury.
230 	278N eBRASKAR epORTS