Opinion
No. A-11-702
10-23-2012
STATE OF NEBRASKA, APPELLEE, v. ANNA M. GODFREY, APPELLANT.
Dennis R. Keefe, Lancaster County Public Defender, Webb E. Bancroft, and Abbi R. Romshek, Senior Certified Law Student, for appellant. Jon Bruning, Attorney General, and Carrie A. Thober for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Lancaster County: JEFFRE CHEUVRONT, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, Webb E. Bancroft, and Abbi R. Romshek, Senior Certified Law Student, for appellant.
Jon Bruning, Attorney General, and Carrie A. Thober for appellee.
INBODY, Chief Judge, and MOORE and RIEDMANN, Judges.
INBODY, Chief Judge.
INTRODUCTION
Following a trial by jury, Anna M. Godfrey was convicted of first degree assault in Lancaster County District Court. Godfrey was sentenced to 5 to 12 years' imprisonment by the district court and now appeals that conviction and sentence to this court. For the following reasons, we affirm.
STATEMENT OF FACTS
On August 6, 2010, the State filed an amended information charging Godfrey with first degree assault. At trial, the following evidence was adduced:
On the evening of April 27, 2010, Godfrey met a group of friends at a local establishment to celebrate a friend's 21st birthday. After the establishment closed at 1 a.m. on April 28, Godfrey, her friends, and three other men who were friends with the person celebrating her birthday went to a home to continue to "hang out." Testimony from several witnesses, including the homeowner, indicates that the three men soon decided to leave because they had to work later that morning. Those witnesses testified that the three men were not asked or forced to leave, although Godfrey and Travis Taylor, the only witness to testify in Godfrey's case, testified that the men had been asked to leave because the only person they knew at the house was sick.
As the men were leaving the home, an argument ensued with another man at the gathering, Tyler Krueger, who had come to the home with Godfrey, and continued outside into the front yard. The homeowner heard arguing and also heard Godfrey telling the three men that they needed to leave. Outside the home, a physical altercation took place between two of the men and Krueger. The third man, the eventual victim in this case, attempted to break up the argument and was pushed to the ground. The victim did not see who pushed him, but witnesses testified that Godfrey had been the person who tackled him. Other witnesses testified that Godfrey and another man were wrestling at that time, while Godfrey testified that she had wrestled a different man altogether who had swung at her during the physical altercation with Krueger.
Godfrey was pulled from the altercation and taken back into the house to calm down, and witnesses indicated that she appeared upset. Meanwhile, the victim got into his vehicle and drove away, but returned to the scene shortly thereafter to pick up his two friends who had remained outside the home. The victim parked his car 40 yards down the block from the home and walked back toward his two friends. As he approached the yard, some arguing and pushing continued in the yard. The victim indicated to his two friends that he was leaving and that if they did not go with him, he would leave them there. The three men then left and started walking back toward the victim's car.
Godfrey testified that she did not remain inside of the home because the victim and his two friends were throwing beer bottles at the group. Taylor testified that all three were "chucking" beer bottles at the house and threatening to stab people. The other witnesses did not observe any beer bottles being thrown and heard no threats being made. The men testified that they were drinking beer from a can, and Godfrey later admitted that she had not actually seen any beer bottles thrown. As the three were walking, someone in the group made derogatory comments to Godfrey about her weight and the yellow shirt she was wearing that evening. Godfrey became upset at the comments and sprinted off the porch toward the men. The witnesses for the State all testified that Godfrey sprinted across the street and tackled the victim, although Godfrey and Taylor testified that the victim tackled her, and Taylor explained that a third woman actually "jumped on top" of both Godfrey and the victim. Godfrey and Taylor explained that Godfrey attempted to tackle another man, when the victim tackled her and placed her in a "choke hold" as she tried to stand up. Godfrey testified that she was down on her stomach while the victim was on top of her with his arm around her neck. Godfrey explained that she bit the victim's ear because she felt as though she was going to pass out.
However, the other witnesses observed Godfrey and the victim wrestling and described that the victim appeared to be trying to get away while Godfrey continued to punch him. Witnesses testified that the victim did not choke Godfrey, nor had he placed her in a headlock, put his hands around her neck, or used any force against her. The victim testified that he stood up and felt a sharp pain on the side of his head. A piece of the victim's ear was missing, and his hand was covered in blood. Witnesses testified that the victim was screaming and was in pain and that the victim's friends immediately drove him to a hospital. Taylor testified that Godfrey ran to him crying with "pieces of skin and ear in her teeth."
At the hospital, the victim was observed to have a U-shaped "chunk" missing from his right ear. The oncall plastic surgeon testified that the victim's ear was permanently disfigured. The surgeon testified that, despite his best efforts, he was unable to replace the portion of the ear that was bitten off and explained that the missing portion of the ear would never grow back on its own.
Godfrey was arrested and read her Miranda rights. Godfrey made a statement to the police, which was received into evidence and played for the jury. In her statement, Godfrey gave three different explanations as to what occurred earlier that morning. Godfrey explained that the three men were at the party and were asked to leave. Godfrey explained that the men threw a beer bottle down and that everyone was talking back and forth to each other. Godfrey explained that she got into a fight when a man called her "fat" and a "stupid little fat bitch," after which she punched him and he tackled her. Godfrey indicated that when she was attacked at the party, she was put into a "choke hold" by the man and was seconds from passing out, which is why she bit his ear. Godfrey denied running from the home and tackling the victim, and then she indicated that she ran toward the men, but not at them.
At trial, evidence was also submitted that shortly after the incident and after she bonded out of jail, Godfrey posted several comments on a social networking site such as "I just got home, my clothes are covered in blood . . . and tonight went from boring as hell to a-mazing! I love fighting! I'm Mike Tyson in this bitch :)" and "I woke up this morning to a million friend requests, if I don't know u don't try n be my friend just bc u think its cool I fucked up 3 dudes the other night it was a fight, same as all the other fights I've been in over the years."
At the jury instruction conference, Godfrey objected to the lack of any self-defense instruction and offered a proposed instruction on the subject, exhibit 36. At first, the district court ruled that a self-defense instruction was not warranted, but later indicated that such an instruction was necessary and that the jury would be instructed pursuant to Godfrey's proffered instruction. The State requested that additional language be added to the self-defense instruction, which request was sustained by the court without any objection.
The matter was then submitted to the jury, which found Godfrey guilty of first degree assault. The district court sentenced Godfrey to 5 to 12 years' imprisonment. Godfrey has timely appealed to this court.
ASSIGNMENTS OF ERROR
Godfrey assigns that the evidence adduced at trial was insufficient to support the conviction, that jury instruction No. 12 did not conform to the Nebraska Jury Instructions, that jury instruction No. 4 misstated the material elements, that the district court erred by overruling her relevance objection to improper impeachment evidence, that she received ineffective assistance of counsel, and that the sentence imposed by the district court was excessive.
STANDARD OF REVIEW
In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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. State v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011). 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. Id.
Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision. State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Freemont, supra.
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
ANALYSIS
Sufficiency of Evidence.
Godfrey contends that the evidence adduced at trial was insufficient to sustain a conviction for first degree assault because she was acting in self-defense. Neb. Rev. Stat. § 28-308 (Cum. Supp. 2010) provides that an individual commits first degree assault if "he or she intentionally or knowingly causes serious bodily injury to another person."
Godfrey does not dispute that she intentionally or knowingly caused bodily injury to the victim, but argues that the evidence was insufficient to support that the victim's bodily injury was serious bodily injury as required by § 28-308, because the injury was "simply cosmetic." Brief for appellant at 24.
Serious bodily injury is defined in Neb. Rev. Stat. § 28-109(20) (Reissue 2008) as follows: "Serious bodily injury shall mean bodily injury which involves a substantial risk of death, or which involves substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body." It is not necessary that the injury cause death, serious permanent disfigurement, or impairment of the function of any part or organ of the body, but only that the injury involved a substantial risk of producing these results. See State v. Swigart, 233 Neb. 517, 446 N.W.2d 216 (1989).
In this case, Godfrey bit completely through the victim's cartilage in his ear, removing a U-shaped section of the victim's ear. While the victim did not sustain any hearing loss as a result of the injury, the victim's ear is permanently disfigured because the removed portion of the ear was not able to be reconstructed and will never grow back. The evidence is clearly sufficient to support the conclusion that Godfrey caused serious bodily injury.
Godfrey also contends that the elements of first degree assault could not have been met because she acted in self-defense. Self-defense is a statutorily affirmative defense in Nebraska. State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009). Neb. Rev. Stat. § 28-1409 (Reissue 2008) provides that "the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion."
To successfully assert the claim of self-defense, one must have a reasonable and good faith belief in the necessity of using such force. State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006). In addition, the force used in self-defense must be immediately necessary and must be justified under the circumstances. Id. A determination of whether the victim was the first aggressor is an essential element of a self-defense claim. State v. Kinser, 259 Neb. 251, 609 N.W.2d 322 (2000).
Godfrey testified that she was attempting to tackle another individual when the victim tackled her and that, after being tackled, she acted in self-defense because she was being choked. The record indicates that the three men, including the victim, were walking away from the home where an earlier altercation had occurred, and although one or more of those individuals yelled derogatory comments at Godfrey, they all had their backs turned and were leaving the scene. The evidence is undisputed that Godfrey then sprinted off the porch toward the men. The record contains evidence from which the jury could have determined Godfrey was not acting in self-defense and was the first aggressor, including testimony by all of the witnesses--aside from Godfrey and Taylor--that Godfrey tackled the victim and that the victim did not attempt to choke or grab Godfrey's neck, but was merely attempting to get away from Godfrey.
The credibility and weight of witness testimony are for the jury to determine, and witness credibility is not to be reassessed on appellate review. State v. Banks, 278 Neb. 342, 771 N.W.2d 75 (2009). Any conflicts in the evidence or questions concerning the credibility of witnesses are for the finder of fact to resolve. State v. Branch, 277 Neb. 738, 764 N.W.2d 867 (2009). Because the jury found Godfrey guilty of first degree assault, it apparently disbelieved Godfrey's assertion that she acted in self-defense, and the record contains sufficient evidence to support that she did not act in self-defense.
Therefore, after viewing the evidence presented in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found that Godfrey committed the essential elements of the crime beyond a reasonable doubt. Accordingly, the evidence is sufficient to sustain Godfrey's conviction for first degree assault.
Jury Instruction No. 12.
Godfrey argues that the district court erred by utilizing jury instruction No. 12, which included the phrase "unlawful force," and that such instruction prejudiced Godfrey by asking the jury to determine whether the victim's actions constituted a criminal offense without identifying and defining the elements of any particular criminal offense the victim may have committed.
In an appeal based upon 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. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010). Jury instructions must be read as a whole, and if they fairly present the law so that the jury could not be misled, there is no prejudicial error. State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007).
As indicated above in the statement of facts, Godfrey submitted a proposed jury instruction as exhibit 36, which was the instruction on self-defense. The proposed instruction, which was eventually utilized by the court for jury instruction No. 12, closely follows the Nebraska Jury Instructions at NJI2d Crim. 7.1 for self-defense with no deadly force. In NJI2d Crim. 7.1(2), the instruction allows for the insertion of "any such force (used, threatened, used or threatened)." In Godfrey's proposed instruction, she utilized the language "unlawful force" and further defined unlawful force in the instruction. Obviously, Godfrey did not object to her submission of the instruction. And now, in her brief to this court, Godfrey argues that she was prejudiced by the use of the "unlawful force" language. One may not invite error and then complain of it. State v. Craven, 18 Neb. App. 633, 790 N.W.2d 225 (2010). See, also, First West Side Bank v. Hiddleston, 225 Neb. 563, 407 N.W.2d 170 (1987) (party cannot be heard to complain of error which such party was instrumental in bringing about). This portion of Godfrey's assignment of error is without merit.
Also, Godfrey argues that the State's addition, and the district court's allowance, of language regarding first aggressor was a prejudicial divergence from the pattern jury instructions. Godfrey argues that the first aggressor language is not found in the pattern jury instruction applicable to this case, i.e., self-defense with the use of nondeadly force, and that aggressor language is only allowed in a situation where deadly force is involved, for example, in circumstance such as those in State v. Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978). On the other hand, the State contends that Eagle Thunder stands for the proposition that the self-defense instruction should not be used when the evidence indicates that the defendant was the aggressor regardless of the force utilized.
The record indicates that the district court initially found that Godfrey was the aggressor and was not entitled to a self-defense instruction. The court specifically indicated, "the Court has informed counsel that it will not instruct on self-defense as the Court . . . feels the facts are undisputed -- or looking at it in the light most favorable to . . . Godfrey that she was the aggressor and she's not entitled to that instruction." However, thereafter, the district court reversed its determination and decided to give the self-defense instruction over the State's objection.
Godfrey submitted a self-defense jury instruction similar to the pattern instruction, NJI2d 7.1, after which the State requested the addition of the following language: "[T]o raise the defense of self-defense, a defendant cannot have been the aggressor in the unlawful use of force." The court adopted Godfrey's instruction with the inclusion of the aggressor language, and Godfrey did not object.
The failure to object to a jury instruction after it has been submitted for review precludes raising an objection on appeal. State v. Riley, 281 Neb. 394, 796 N.W.2d 371 (2011); State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010). Absent plain error indicative of a probable miscarriage of justice, the failure to object to a jury instruction after it has been submitted for review precludes raising an objection on appeal. State v. Sellers, supra. Godfrey urges this court to utilize plain error to reverse the case.
NJI2d Crim. 7.1, the pattern jury instruction regarding self-defense with no deadly force, does not include any specific language regarding an aggressor; however, the comment to the jury instruction sets forth that "[t]o raise the defense of self defense a defendant cannot have been the aggressor in the unlawful use of force."
Godfrey would be entitled to have the jury instructed on her theory of defense if there is any evidence to support it. See State v. Frear, 5 Neb. App. 578, 561 N.W.2d 591 (1997). To successfully assert the claim of self-defense, a defendant must have a reasonable and good faith belief in the necessity of the use of force. State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009). Further, the force used must be immediately necessary and must be justified under the circumstances. State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).
Justifications for the use of force in self-defense are statutorily defined, and the defendant bears the initial burden to produce evidence which supports a claim for self-defense. State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999); State v. Kinser, 252 Neb. 600, 561 N.W.2d 287 (1997). It is only unlawful force directed at a defendant which provides a justifiable basis for self-defense. See § 28-1409. If a defendant has unjustifiably placed himself or herself in harm's way, a court may properly find that such facts do not support a lawful claim of self-defense. State v. Urbano, supra; State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998).
Godfrey claims that she was justified in biting a portion of the victim's ear off in self-defense because she was being choked from behind by the victim and could not breathe. Testimony by others at the scene indicated that Godfrey was on top of the victim, who was fighting to get off of the ground. However, the record is clear that the previous altercation had ended and the victim and his friends were leaving the area and that it was unnecessary for Godfrey to be in any contact with either the victim or any of his friends.
In State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011), a dispute over money gave rise to a confrontation between two rival gangs. One of the gangs, armed with various types of weapons, ambushed the other gang, and the defendant fired two shots and killed another individual. The defendant was charged and eventually convicted by a jury of first degree murder and use of a deadly weapon to commit a felony. The State included additional language in the submitted instruction which was found in the comment to NJI2d 7.1, but not in the pattern instructions, neither NJI2d 7.1 nor 7.3, regarding self-defense with deadly force, in accordance with State v. Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978). The defendant appealed various issues, including the State's inclusion in the self-defense instruction of the additional language. The Nebraska Supreme Court found that Eagle Thunder, supra, "stands for the rule that a defendant who is the initial aggressor is not entitled to a self-defense instruction; it does not hold that one who uses more force than is necessary loses his privilege of self-defense," which was the portion of the language that the defendant disputed. Id. at 347, 798 N.W.2d at 830-31.
In Eagle Thunder, supra, the defendant had been attacked and had escaped to safety. Although the defendant was not under any additional threat, he hid in an alley, picked up a pipe, and returned to assault those who had previously attacked him. The Nebraska Supreme Court affirmed the trial court's refusal to instruct the jury on self-defense, finding that the defendant was clearly the aggressor. Id.
In this case, we find that the evidence did not warrant any jury instruction on self-defense. The controverted evidence as to who was the aggressor during the actual attack is irrelevant. There was no evidence that Godfrey's use of force by attacking the victim and his friends was immediately necessary. The testimony is undisputed that the altercation which had occurred earlier in the evening had concluded. Godfrey was on the porch, and the victim and his friends had their backs turned and were walking down the street away from the residence. Instead of remaining on the porch with the rest of the individuals at the residence, Godfrey sprinted off the porch toward the group of men, intending to attack one of them. Before taking off to attack, Godfrey had no reason to believe that there was an imminent threat toward her and that the use of force was immediately necessary to protect herself. See State v. Schroeder, 199 Neb. 822, 826, 261 N.W.2d 759, 761 (1978) (holding that self-defense instruction was not appropriate where there was no evidence that defendant could have believed assault was "imminent" and that use of force was therefore "immediately necessary" to protect himself); State v. Frear, 5 Neb. App. 578, 561 N.W.2d 591 (1997). Therefore, we find that the district court erred in giving the self-defense instruction to the jury because such an instruction was not warranted by the evidence and not, as Godfrey argues, because it included the aggressor language. In a criminal prosecution, the Nebraska Supreme Court will consider all of the evidence and all the instructions given to the jury in determining whether giving or refusal of a particular instruction was prejudicially erroneous. Sherrick v. State, 157 Neb. 623, 61 N.W.2d 358 (1953).
We find that the erroneous jury instruction given in this case was harmless and does not require reversal because Godfrey was not prejudiced by the instruction. In fact, the instruction was actually favorable to Godfrey. A defendant may not predicate error on an instruction that is more favorable to her or him than is required by law. State v. Hamilton, 217 Neb. 734, 351 N.W.2d 63 (1984). Godfrey was given the benefit of a claim of self-defense that should not have been given to her, and once the jury, as the trier of fact, was charged with the self-defense instruction, the jury was free to accept or reject the claim. In finding her guilty, the jury clearly rejected the defense.
Jury Instruction No. 4.
Godfrey argues that jury instruction No. 4 prejudiced her because it incorporated jury instruction No. 12, which Godfrey argues misstated the law regarding self-defense. The specific statement in jury instruction No. 4 which Godfrey contends is prejudicial is "[t]hat the defendant's act was not justified as self defense as defined by Instruction No. 12." However, again, Godfrey failed to object to the jury instruction and is precluded from raising an objection on appeal. See State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010). We have reviewed the instructions as a whole, and aside from our determinations regarding jury instruction No. 12 as set forth above, we find no plain error indicative of a probable miscarriage of justice. The instructions as a whole correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings. This assignment of error is without merit.
Godfrey's Objection to Testimony.
Godfrey argues that the district court erred by overruling her relevance objection as it allowed the jury to hear improper impeachment evidence that was prejudicial and of no probative value. During Godfrey's cross-examination, the State inquired of Godfrey about how many times she had Miranda rights read to her.
[State]: And he took you down to the police station.
[Godfrey]: Correct.
Q. Read you your rights.
A. For the most part, yes.
Q. For the most part. Did he read you your rights or not?
A. He didn't read them the right way but, yeah, he read them to me.
Q. How do you know he didn't read them the right way?
A. Because I've had my Miranda rights read to me before.
. . . .
Q. How many times have you had your Miranda rights read to you?
A. Probably two or three.
Q. Two or three? So you are pretty familiar with Miranda rights.
A. Correct.
Q. Was that done down at the police station, then?
A. Not always, no.
Q. On what occasions have you had your Miranda rights read to you?
[Godfrey's counsel]: Objection, relevance. May we approach, Judge?
THE COURT: You may.
(An off-the-record discussion was held in low tones at the bench.)
THE COURT: The objection is overruled.
Neb. Evid. R. 103(1), Neb. Rev. Stat. § 27-103(1) (Reissue 2008), provides: "Error may not be predicated upon a ruling which admits . . . evidence unless a substantial right of the party is affected, and: (a) . . . a timely objection or motion to strike appears of record, stating the specific ground of objection, if a specific ground was not apparent from the context."
The Nebraska Supreme Court has explained that "'"[t]he reason for the requirement of specificity is to permit both court and counsel to better deal with the objection, either by way of counsel's correction of the claimed error, or as assistance to the court for a fair and more accurate ruling."'" State v. Hall, 270 Neb. 669, 675, 708 N.W.2d 209, 215 (2005), quoting State v. Richard, 228 Neb. 872, 424 N.W.2d 859 (1988) (concluding that defense counsel's relevancy objections were insufficient to alert trial court to issue of improper impeachment raised on appeal and thus failed to preserve issue for appeal).
Additionally:
"Unless the objection to offered evidence be sufficiently specific to enlighten the trial court and enable it to pass upon the sufficiency of such objection and to observe the alleged harmful bearing of the evidence from the standpoint of the objector, no question can be presented therefrom in the court of appeal."State v. Farrell, 242 Neb. 877, 883, 497 N.W.2d 17, 21 (1993) (determining that defendant's general objections to evidence at trial, which referred to relevancy and arguments made earlier, did not sufficiently alert trial court to grounds for error alleged on appeal), disapproved on other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). But see State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003) (holding that defense counsel's objections at trial explicitly referring to same objections he had made at previous hearing sufficiently alerted State and trial court to specific ground of objection and preserved issues for appeal).
The problem that we face in this case is that Godfrey made a general relevancy objection to the question and asked to approach the bench, but did not include the discussion with the district court on the record. Therefore, this court does not have any clear idea of what basis the relevancy objection was argued or overruled upon. Now, Godfrey argues that by allowing that testimony to come in, it provided improper impeachment and was prejudicial. However, that objection was not made on the record. Further, after the testimony was elicited, there was not a new objection for improper impeachment or a motion to strike. As such, there is no question which can be presented now to this court on appeal. This assignment of error is without merit.
Ineffective Assistance of Counsel.
Godfrey, who is represented on appeal by counsel different from at trial, argues that she was prejudiced by trial counsel's failure to perform as well as a criminal lawyer with ordinary training and skill.
A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011). The determining factor is whether the record is sufficient to adequately review the question. Id. An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing. Id.
Godfrey argues that counsel was ineffective for failing to object to an officer's volunteered opinion about strangulation marks; failing to object to the State's attempt to improperly elicit character evidence from Godfrey about prior wrongdoing, crimes, or bad acts; failing to object to jury instructions; and failing to present to the district court examples of appropriate sentences in comparable circumstances.
Upon our review of the record, we find that the record is insufficient to evaluate the effectiveness of trial counsel as to trial counsel's strategy for not raising certain objections at trial and for not presenting examples of sentences to the district court. Therefore, we do not consider Godfrey's ineffective assistance of counsel arguments in this appeal.
Excessive Sentence.
Godfrey argues that the district court abused its discretion by imposing an excessive sentence.
Godfrey was convicted of first degree assault, a Class II felony punishable by a minimum sentence of 1 year's imprisonment and a maximum sentence of 50 years' imprisonment. § 28-308 and Neb. Rev. Stat. § 28-105 (Reissue 2008). Godfrey's sentence of 5 to 12 years' imprisonment is well within the statutory limit.
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010). When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (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 crime. Id. But the appropriateness of a sentence is necessarily a subjective judgment that includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. Id.
The presentence investigation report shows that Godfrey was 22 years old at the time of the crimes. Godfrey has no dependents, had completed high school, and was employed in sales. Godfrey's criminal history indicates that as a juvenile, she was placed on probation for theft less than $300 and disturbing the peace, although she was unsatisfactorily released from said probation. As an adult, Godfrey had several traffic offenses and had been convicted of minor in possession three times, maintaining a disorderly house, refusal to comply with a police officer two times, failure to appear, negligent driving, possession of marijuana--1 ounce or less, open alcohol container, and criminal attempt of a Class I misdemeanor (false reporting). The presentence investigation report also indicates that Godfrey has consistently failed to take any responsibility or show any remorse for her actions.
The record clearly indicates that the district court took into account all of the appropriate factors in imposing Godfrey's sentence, and we cannot say that the district court abused its discretion by imposing a sentence within the statutory range.
CONCLUSION
For the reasons discussed above, we find no merit to Godfrey's assigned errors. Therefore, we affirm her conviction and sentence in its entirety.
AFFIRMED.