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STATE v. ABEJIDE

Cite as 293 Neb. 687

State of Nebraska, appellee, v.

Abejide Abejide, also know

Gaylord Mason, appellan

___ N.W.2d ___

Filed June 3, 2016. No. S-15-180.

1. Jury Instructions. Whether the jury instructions given by a trial court 

are correct is a question of law.

2. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the conclusion 

reached by the lower court. 

3. Convictions: Evidence: Appeal and Error. In reviewing a claim that 

the evidence was insufficient to support a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder 

of fact, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

4. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

5. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction.

6. Lesser-Included Offenses. Whether a crime is a lesser-included offense 

is determined by a statutory elements approach and is a question of law. 

Under the statutory elements approach, for an offense to be a lesserincluded offense, it must be impossible to commit the greater offense 

without also committing the lesser offense.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/03/2016 09:06 AM CDT
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7. Lesser-Included Offenses: Sexual Assault. Attempted third degree 

sexual assault is not a lesser-included offense of attempted first degree 

sexual assault.

8. Criminal Law: Juries: Verdicts. Where a single offense may be committed in a number of different ways and there is evidence to support 

each of the ways, the jury need only be unanimous in its conclusion that 

the defendant violated the law by committing the act. It need not be 

unanimous in its conclusion as to which of several consistent theories it 

believes resulted in the violation.

9. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining factor is 

whether the record is sufficient to adequately review the question.

10. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An 

ineffective assistance of counsel claim will not be addressed on direct 

appeal if it requires an evidentiary hearing.

11. Habitual Criminals: Sentences: Convictions. By its terms, Neb. Rev. 

Stat. § 29-2221 (Reissue 2008) requires the triggering offense to be “a 

felony” before the habitual criminal statute will apply to the sentencing 

of the triggering offense. But in order to be one of the prior convictions 

that establishes habitual criminal status, § 29-2221 does not require that 

the prior conviction was a “felony” per se; instead, it requires that the 

prior conviction resulted in a sentence of imprisonment for a term “of 

not less than one year.”

12. Sentences. In 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 amount of violence involved in the 

commission of the crime.

Appeal from the District Court for Lancaster County: Pau

D. Merritt, Jr., Judge. Affirme

Joseph D. Nigro, Lancaster County Public Defender, and 

Kristi J. Egger Brown for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Wright, Connolly, Miller

Cassel, 
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Miller-Lerman

I. NATURE OF CASE

Abejide Abejide, also known as Gaylord Mason, was convicted by a jury of attempted first degree sexual assault and 

terroristic threats. The district court for Lancaster County 

found Abejide to be a habitual criminal and sentenced him 

to imprisonment for 10 to 20 years for attempted first degree 

sexual assault and for 10 to 10 years for terroristic threats. 

Abejide appeals his convictions and sentences. His assignments 

of error challenge the court’s refusal to give certain proposed 

instructions, the sufficiency of the evidence, the effectiveness 

of trial counsel, and the alleged excessiveness of his sentence. 

We affirm Abejide’s convictions and sentences.

II. STATEMENT OF FACTS

Abejide was arrested and charged with attempted first 

degree sexual assault and terroristic threats in connection with 

an incident that occurred on May 24, 2014. At Abejide’s jury 

trial, the victim testified that she was walking to a grocery 

store when a man she knew called out to her. The man was 

Howard Mason, who is Abejide’s brother. The victim crossed 

the street to talk with Mason, who was on the sidewalk drinking beer with a few other people, including Abejide. She 

talked and drank beer with the group for a while. At some 

point, Mason and Abejide got into an argument and Mason 

left. Later, as the victim was leaving, Abejide pulled her 

into an alley, where he started choking her and told her he 

was going to “knock [her] out.” The victim testified that she 

thought that Abejide was going to kill her. She further testified 

that she thought that Abejide was trying to rape her, because 

he pushed her against a wall and pulled her pants down and 

took his own pants down. She testified that Abejide told her 

that he was going to do something which she understood to 

mean that he was going to sexually assault her. The victim 

started screaming and told him to stop. The next thing she 

remembered was that a police officer arrived and handcuffed 
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Abejide. The victim testified that she had never met Abejide 

before that day and that she did not consent to having sexual 

intercourse with him in the alley.

A Lincoln police officer testified that he received a call to 

respond to a report of a possible domestic disturbance in an 

alley. He parked his patrol car nearby and walked to the alley. 

When he turned a corner, he saw Abejide holding a woman 

face first against the wall. The woman’s pants were pulled 

down and Abejide’s penis was exposed. The officer testified 

that the woman appeared “shaken,” “upset,” and “fearful” and 

that when she saw him, she said, more than once, “‘Help me. 

He’s trying to rape me.’” The officer pulled Abejide away 

from the woman and put him into handcuffs. The officer and 

another officer who later arrived at the scene of the incident 

both testified that Abejide appeared to be intoxicated but that 

he was able to comply with instructions and could walk on 

his own.

After the State rested its case, the court overruled Abejide’s 

motion to dismiss the terroristic threats charge. Abejide did 

not move to dismiss the attempted first degree sexual assault 

charge, and he did not thereafter present any evidence in 

his defense.

At the jury instruction conference, the court refused a number of Abejide’s proposed instructions, three of which are 

at issue in this appeal. The first proposed instruction was 

an instruction which included attempted third degree sexual 

assault as a lesser-included offense of attempted first degree 

sexual assault. The court instead gave an instruction which 

set forth no lesser-included offense to attempted first degree 

sexual assault.

The second proposed instruction at issue in this appeal was 

an instruction setting forth the elements of the offense of terroristic threats. Abejide’s proposed instruction required the 

jury to reach unanimous agreement regarding whether Abejide 

acted with the intent to terrorize the victim or whether he 

acted in reckless disregard of the risk of causing terror to the 
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victim. The court instead instructed the jury that it “need not 

agree unanimously on whether . . . Abejide intended to terrorize [the victim] or acted in reckless disregard of terrorizing 

[the victim],” so long as the jury agreed unanimously that the 

State established either state of mind of the defendant beyond 

a reasonable doubt.

The third and final proposed instruction at issue in this 

appeal was an instruction setting forth an intoxication defense 

and instructing the jury that it could consider evidence of 

Abejide’s intoxication in deciding whether he had the required 

intent or whether he was so overcome by the use of alcohol 

that he could not have formed the required intent. In refusing 

Abejide’s proposed instruction, the court cited Neb. Rev. Stat. 

§ 29-122 (Cum. Supp. 2014), which generally provides that 

voluntary intoxication is not a defense to any criminal offense 

and may not be considered in determining the existence of a 

mental state of the defendant where mental state is an element 

of the offense. The court noted that to the extent there was 

evidence that Abejide was intoxicated, there was no evidence 

that his intoxication was not voluntary. The court therefore 

instructed the jury that it could not consider Abejide’s voluntary intoxication in deciding whether he had the required 

intent. Abejide objected to the court’s instruction on the basis 

that it unconstitutionally diminished the State’s burden to 

prove each and every element of the offense and that § 29-122 

improperly imposed a burden on Abejide to present evidence which might require him to give up other constitutional 

rights, such as the right to remain silent. The court overruled 

Abejide’s objection.

The jury found Abejide guilty of both attempted first degree 

sexual assault and terroristic threats. After the court entered 

judgment based on the jury’s verdicts, the court held a hearing to consider the State’s charge that Abejide was a habitual 

criminal. Based on evidence presented by the State, the court 

found that Abejide had three prior convictions, each of which 

involved a sentence of not less than 1 year: a conviction in 
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1994 for attempted first degree sexual assault of a child, for 

which he was sentenced to imprisonment for 6 to 9 years; 

a conviction in 2007 for a violation of the Sex Offender 

Registration Act (SORA), second offense, for which he was 

sentenced to imprisonment for 2 to 4 years; and a conviction in 2011 for a violation of the SORA, for which he was 

sentenced to imprisonment for 20 months to 4 years. The 

court further found that Abejide was represented by counsel 

in each prior conviction. The court found that Abejide was a 

habitual criminal. The court thereafter sentenced Abejide to 

imprisonment for 10 to 20 years for attempted first degree 

sexual assault and for 10 to 10 years for terroristic threats; 

the court ordered the sentences to be served consecutively to 

one another.

Abejide appeals his convictions and sentences.

III. ASSIGNMENTS OF ERROR

Abejide claims that the district court erred when it rejected 

his proposed jury instructions regarding attempted third degree 

sexual assault as a lesser-included offense of attempted first 

degree sexual assault, the elements of terroristic threats and the 

requirement of unanimity with regard to the defendant’s state 

of mind, and the intoxication defense. He also claims that there 

was not sufficient evidence to support the verdicts and that he 

was denied effective assistance of counsel in certain respects. 

Abejide finally claims that the court imposed an excessive sentence. In connection with the claim of an excessive sentence, 

Abejide argues that his prior convictions for violations of the 

SORA should not have been used to support a finding that he 

was a habitual criminal.

IV. STANDARDS OF REVIEW

[1,2] Whether the jury instructions given by a trial court are 

correct is a question of law. State v. Armagost, 291 Neb. 117, 

864 N.W.2d 417 (2015). When reviewing questions of law, an 

appellate court resolves the questions independently of the conclusion reached by the lower court. Id.
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[3] In reviewing a claim that the evidence was insufficient 

to support a criminal conviction, an appellate court does not 

resolve conflicts in the evidence, pass on the credibility of 

witnesses, or reweigh the evidence; such matters are for the 

finder of fact, and a conviction will be affirmed, in the absence 

of prejudicial error, if the evidence admitted at trial, viewed 

and construed most favorably to the State, is sufficient to support the conviction. State v. Custer, 292 Neb. 88, 871 N.W.2d 

243 (2015).

[4] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by 

the trial court. State v. Russell, 292 Neb. 501, 874 N.W.2d 

8 (2016).

V. ANALYSIS

1. The District Court Did No

in Its Rulings 

Jury Instruct

[5] Abejide claims that the district court erred when it 

rejected his proposed jury instructions on the offense of 

attempted first degree sexual assault, the offense of terroristic 

threats, and the defense of intoxication. To establish reversible 

error from a court’s refusal to give a requested instruction, an 

appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was 

prejudiced by the court’s refusal to give the tendered instruction. Armagost, supra. We conclude that the district court did 

not commit reversible error when it refused each of the proposed instructions.

(a) Attempted First Degree 

Sexual Assault Instruction

Abejide proposed an elements instruction which included 

attempted third degree sexual assault as a lesser-included 

offense of attempted first degree sexual assault. The court 

refused Abejide’s proposed instruction and instead gave an 
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instruction which set forth no lesser-included offense. Abejide 

contends that the jury should have been instructed on attempted 

third degree sexual assault as a lesser-included offense. We 

reject Abejide’s contention.

[6] We addressed this issue in State v. Kibbee, 284 Neb. 

72, 815 N.W.2d 872 (2012), wherein the defendant claimed 

that the trial court erred when it refused to instruct the jury 

on third degree sexual assault as a lesser-included offense of 

first degree sexual assault. We noted in Kibbee that whether a 

crime is a lesser-included offense is determined by a statutory 

elements approach and is a question of law. Under the statutory elements approach, for an offense to be a lesser-included 

offense, it must be impossible to commit the greater offense 

without also committing the lesser offense. With respect to 

whether third degree sexual assault is a lesser-included offense 

of first degree sexual assault, we adopted the reasoning of 

the Nebraska Court of Appeals in State v. Schmidt, 5 Neb. 

App. 653, 562 N.W.2d 859 (1997), and rejected the defendant’s contention.

[7] In Schmidt, the Court of Appeals concluded that 

attempted third degree sexual assault is not a lesser-included 

offense of attempted first degree sexual assault. The Court of 

Appeals reasoned that, given the statutory definitions applicable to sexual assault crimes, it is possible to have “sexual 

penetration,” an element of first degree sexual assault, without 

having “sexual contact,” an element of third degree sexual 

assault, and that therefore, the crime of first degree sexual 

assault can be committed without at the same time committing 

third degree sexual assault. Schmidt, 5 Neb. App. at 675, 562 

N.W.2d at 875-76. We concluded in Kibbee, supra, that third 

degree sexual assault is not a lesser-included offense of first 

degree sexual assault.

The holdings in Kibbee and Schmidt apply here. Abejide 

acknowledges the precedent of Kibbee and Schmidt but argues 

that those decisions were erroneous and urges us to revisit the 

issue. We find no error in the reasoning in Kibbee and Schmidt. 
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Abejide’s tendered instruction, which included attempted third 

degree sexual assault as a lesser-included offense of attempted 

first degree sexual assault, was not a correct statement of the 

law, and therefore, the district court did not commit reversible 

error when it refused the instruction.

(b) Terroristic Threats Instruction

Abejide proposed an instruction setting forth the elements 

of terroristic threats and instructing the jury that it had to reach 

a unanimous decision regarding intent. He proposed instructing the jury that it could find him guilty of either “intentional 

terroristic threats” or “reckless terroristic threats” but that it 

must unanimously agree on whether he acted “with the intent 

to terrorize” or whether he acted “in reckless disregard of the 

risk of causing such terror.” The court refused Abejide’s proposed instruction. Instead, the court instructed the jury that it 

could find Abejide guilty of terroristic threats if it found that 

he acted either with intent to terrorize or in reckless disregard 

of terrorizing the victim but that “you need not agree unanimously on whether . . . Abejide intended to terrorize [the victim] or acted in reckless disregard of terrorizing [the victim], 

so long as you agree unanimously that the state has established 

either of the elements . . . beyond a reasonable doubt.” We 

find no error in the court’s refusal to instruct as requested 

by Abejide.

[8] We have stated that where a single offense may be committed in a number of different ways and there is evidence to 

support each of the ways, the jury need only be unanimous 

in its conclusion that the defendant violated the law by committing the act. State v. Galindo, 278 Neb. 599, 774 N.W.2d 

190 (2009). It need not be unanimous in its conclusion as 

to which of several consistent theories it believes resulted 

in the violation. Id. As an example, we have applied these 

standards in cases involving a charge of first degree murder 

which may be committed under either a felony murder theory 

or a premeditated murder theory. In such cases, we have 
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held that a jury need not be unanimous as to the theory upon 

which it relies to convict a defendant, as long as each juror is 

convinced beyond a reasonable doubt that the defendant committed the crime. E.g., State v. Mata, 275 Neb. 1, 745 N.W.2d 

229 (2008) (citing State v. White, 254 Neb. 566, 577 N.W.2d 

741 (1998)).

By similar reasoning, we have concluded that for a defendant to be convicted of driving under the influence, the jury 

is not required to be unanimous on whether the defendant is 

guilty of the offense because he was driving “while impaired 

by alcohol” or because he was driving while his blood alcohol concentration was over the statutory legal limit. State v. 

Parker, 221 Neb. 570, 573, 379 N.W.2d 259, 261 (1986). 

See, also, State v. Casillas, 279 Neb. 820, 840, 782 N.W.2d 

882, 899 (2010) (stating that “a driving-under-the-influence 

offense can generally be shown either by evidence of physical 

impairment and well-known indicia of intoxication or simply 

by excessive alcohol content shown through a chemical test 

and that the jury need not be unanimous in its determination 

of under which means the offense was committed”). In this 

regard, in Parker, supra, we held that “the defendant is not 

entitled to an instruction that in order for the defendant to be 

found guilty, the jury must be unanimous with regard to any 

one theory or the jury must find the defendant not guilty.” 221 

Neb. at 573, 379 N.W.2d at 261.

Citing to Parker, supra, the Court of Appeals has determined with respect to terroristic threats that there is generally 

no requirement that the jury unanimously agree whether the 

crime was intentional or reckless. State v. Rye, 14 Neb. App. 

133, 705 N.W.2d 236 (2005). However, in Rye, the Court of 

Appeals noted that where an additional charge such as use of a 

weapon to commit a felony requires that the predicate offense 

be an intentional crime, then in that case, the jury must unanimously agree that the predicate offense of terroristic threats 

was intentional in order to convict the defendant of the additional charge.
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As relevant to this case, Neb. Rev. Stat. § 28-311.01(1) 

(Reissue 2008), regarding the crime of terroristic threats, provides: “A person commits terroristic threats if he or she threatens to commit any crime of violence: (a) With the intent to 

terrorize another; . . . or (c) In reckless disregard of the risk of 

causing such terror . . . .” Thus, the statute defines terroristic 

threats as a single offense which may be committed different 

ways. A juror in this case could find, consistent with the evidence, that Abejide threatened to commit a crime of violence 

and that he did so either with the intent to terrorize the victim 

or in reckless disregard of causing such terror. Given the statute and our application thereof, the jury was not required to be 

unanimous as to which state of mind Abejide possessed.

Abejide’s proposed instruction requiring such unanimity 

was not a correct statement of law. We therefore reject his 

claim that the district court erred when it refused his proposed 

instruction.

(c) Intoxication Defense Instruction

Abejide proposed an instruction setting forth an intoxication 

defense. The proposed instruction stated that the jury could 

“consider evidence of alcohol use along with all the other evidence in deciding whether . . . Abejide had the required intent” 

but that it could “not consider intoxication if . . . Abejide 

voluntarily became intoxicated so that he could commit the 

crime or crimes charged in the information.” The court refused 

this proposed instruction, and based on the evidence and the 

controlling statute, § 29-122, the court instructed the jury that 

it could not consider Abejide’s voluntary intoxication in deciding whether he had the required intent.

In its ruling refusing Abejide’s proposed intoxication defense 

instruction, the court cited § 29-122, regarding intoxication as 

a defense. Section 29-122 provides as follows:

A person who is intoxicated is criminally responsible 

for his or her conduct. Intoxication is not a defense 

to any criminal offense and shall not be taken into 
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consideration in determining the existence of a mental 

state that is an element of the criminal offense unless 

the defendant proves, by clear and convincing evidence, 

that he or she did not (1) know that it was an intoxicating substance when he or she ingested, inhaled, injected, 

or absorbed the substance causing the intoxication or 

(2) ingest, inhale, inject, or absorb the intoxicating substance voluntarily.

In connection with its ruling refusing Abejide’s proposed 

intoxication defense instruction, the court noted that there was 

no evidence that Abejide did not know that he had ingested an 

intoxicating substance or that he had not voluntarily ingested 

it. Abejide’s proposed instruction did not correctly state the law 

under § 29-122, and the evidence did not warrant an instruction 

setting forth an instruction regarding involuntary intoxication. 

See § 29-122. Abejide therefore has not shown that the district 

court’s refusal to give his proposed instruction was reversible error.

Abejide acknowledges that pursuant to § 29-122, “intoxication can only be used as a defense if a defendant did not know 

they [sic] were ingesting an intoxicating substance, or did not 

ingest the intoxicating substance voluntarily.” Brief for apellant 

at 28. Apparently acknowledging that there was no evidence in 

this case that Abejide did not know that he had ingested an 

intoxicating substance or that he had not voluntarily ingested 

it, Abejide contends that it was unconstitutional to put the 

burden on the defendant to provide such evidence and that 

when there is evidence that the defendant was intoxicated, the 

burden should be on the State to prove that the defendant knew 

he or she was ingesting an intoxicating substance and that the 

defendant did so voluntarily.

We note two significant features of § 29-122. First, the 

statute provides that “[a] person who is intoxicated is criminally responsible for his or her conduct” and that, generally, “[i]ntoxication is not a defense to any criminal offense 

and shall not be taken into consideration in determining the 
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existence of a mental state that is an element of the criminal 

offense . . . .” However, the statute provides an exception to 

this general rule when “the defendant proves, by clear and convincing evidence, that he or she did not (1) know that it was 

an intoxicating substance when he or she ingested, inhaled, 

injected, or absorbed the substance causing the intoxication or 

(2) ingest, inhale, inject, or absorb the intoxicating substance 

voluntarily.” Section 29-122 is generally understood to make 

a distinction between voluntary intoxication, which may not 

either provide a defense or be considered in determining the 

existence of a mental state, and involuntary intoxication, which 

may be so used.

With regard to whether the statute may constitutionally 

provide that voluntary intoxication is not a defense and may 

not be considered when determining the existence of a mental 

state, we note that in Montana v. Egelhoff, 518 U.S. 37, 116 S. 

Ct. 2013, 135 L. Ed. 2d 361 (1996), the U.S. Supreme Court 

rejected a due process challenge to a Montana statute with 

provisions similar to § 29-122. The Montana statute provided 

in part that voluntary intoxication “‘may not be taken into consideration in determining the existence of a mental state which 

is an element of [a criminal] offense.’” Egelhoff, 518 U.S. at 

39-40. Two pluralities of four justices in Egelhoff disagreed on 

whether the statute violated due process when characterized as 

an evidentiary rule designed to prevent the defendant from presenting evidence of voluntary intoxication in his or her defense. 

However, Justice Ginsburg wrote a concurrence in which she 

characterized the statute as a “legislative judgment regarding 

the circumstances under which individuals may be held criminally responsible for their actions.” 518 U.S. at 57 (Ginsburg, 

J., concurring in judgment). As such, Justice Ginsburg reasoned, the statute removed the subject of voluntary intoxication from the mens rea inquiry, “thereby rendering evidence of 

voluntary intoxication logically irrelevant to proof of the requisite mental state.” 518 U.S. at 58. Because “[s]tates enjoy wide 

latitude in defining the elements of criminal offenses,” Justice 
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Ginsburg concluded that the statute, read as a law “[d]efining mens rea to eliminate the exculpatory value of voluntary 

intoxication,” did not offend due process. 518 U.S. at 58-59. 

The plurality which found no due process violation when the 

statute was viewed as an evidentiary rule stated that it was “in 

complete agreement” with Justice Ginsburg’s characterization 

of the statute and that it had analyzed the statute as an evidentiary rule “simply because that [was] how the [court below] 

chose to analyze it.” 518 U.S. at 50 n.4.

We believe that, similar to the statute at issue in Egelhoff, 

supra, § 29-122 is a “legislative judgment regarding the circumstances under which individuals may be held criminally 

responsible for their actions.” See Egelhoff, 518 U.S. at 57 

(Ginsburg, J., concurring in judgment). Although the statute 

redefined the circumstances under which the requisite state of 

mind may be found, the statute did not relieve the State of the 

burden of proving a state of mind that is a required element of 

a criminal offense. See Egelhoff, supra (Scalia, J., for plurality) (burden was not shifted under statute and court instructed 

jury that State had burden of proving guilt beyond reasonable 

doubt). By removing voluntary intoxication from consideration of whether the defendant had the required mental state, 

§ 29-122 redefines the circumstances under which the requisite 

mental state may be found but it does not relieve the State of 

its burden to prove the requisite mental state.

Abejide does not contend that the Legislature could not 

provide that voluntary intoxication is not a defense and cannot be considered in determining the existence of a mental 

state that is an element of a crime. Instead, he focuses on the 

second feature of the statute which allows the use of involuntary intoxication for such purposes, but only if the defendant 

“proves, by clear and convincing evidence” that intoxication 

was involuntary as set forth in the statute. Abejide argues that 

it violates due process to put the burden on the defendant to 

prove that intoxication was involuntary. He cites Sandstrom 

v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 
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(1979), in which the U.S. Supreme Court held that a conclusive presumption or a presumption that shifts to the defendant 

the burden of persuasion with respect to an element of a crime 

deprives the defendant of due process because it relieves the 

State of its duty to prove every element beyond a reasonable doubt.

In response to Abejide’s due process argument, the State 

cites Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 

L. Ed. 2d 281 (1977), for the proposition that it is not unconstitutional to put the burden on the defendant to prove an 

affirmative defense. The Court in Patterson stated that “[p]roof 

of the nonexistence of all affirmative defenses has never been 

constitutionally required” and that it is “constitutionally permissible to provide that various affirmative defenses [are] to be 

proved by the defendant.” 432 U.S. at 210-11. See, also, Smith 

v. United States, ___ U.S. ___, 133 S. Ct. 714, 184 L. Ed. 2d 

570 (2013). However, the Court was careful in Patterson to 

distinguish between an affirmative defense that “constitutes a 

separate issue on which the defendant is required to carry the 

burden of persuasion” and a defense that “serve[s] to negative 

any facts of the crime which the State is to prove in order to 

convict.” 432 U.S. at 207. Patterson makes an important distinction between a defense that merely negates an element of 

the crime and a defense that constitutes an issue separate from 

the elements of the crime.

Therefore, whether § 29-122 violates due process by placing on the defendant the burden to prove by clear and 

convincing evidence that the defendant was involuntarily 

intoxicated may depend in part on whether involuntary intoxication is a defense that presents an issue separate from the 

elements of the crime or whether it is a defense that merely 

negates the mental state that is an element of the crime. In 

this regard, we discuss below the types of burdens of proof, 

the constitutional implications of those burdens, and the facts 

of this case relative thereto. And we determine that it does 

not violate due process to put the burden on the defendant to 
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produce at least some evidence that intoxication was involuntary and that, here, where there was no evidence presented by 

either Abejide or the State to indicate that Abejide’s intoxication was involuntary, the court did not unconstitutionally 

refuse Abejide’s proposed instruction regarding involuntary 

intoxication.

While § 29-122 puts the burden on the defendant to prove 

involuntary intoxication by clear and convincing evidence, 

the burden of proof is generally understood to include two 

separate burdens—the burden of production and the burden of 

persuasion. See State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 

(1996) (Gerrard, J., dissenting), overruled on other grounds, 

State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). In 

Ryan, the dissent recognized that “[t]here is a clear constitutional distinction between casting the burden of production

on an accused and casting the burden of persuasion on an 

accused” and that “it is the burden of persuasion that the state 

is required to bear beyond a reasonable doubt . . . not the 

burden of production.” 249 Neb. at 251, 543 N.W.2d at 150 

(emphases in original). See, also, Patterson, supra (referring 

to allocation of burden of persuasion). With regard to putting 

on the defendant the burden of production with regard to a 

defense, it has been stated:

As to the burden of production of evidence, it is 

uniformly held that the defendant is obliged to start 

matters off by putting in some evidence in support of 

his defense—e.g., evidence of his insanity, or of his acting in self-defense, or of one of the other affirmative 

defenses—unless of course the prosecution, in presenting its own side of the case, puts in some evidence of a 

defense, in which case the matter of defense is properly 

an issue though the defendant himself produces nothing further to support it. Experience shows that most 

people who commit crimes are sane and conscious; they 

are not compelled to commit them; and they are not so 

intoxicated that they cannot entertain the states of mind 
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which their crimes may require. Thus it makes good 

sense to say that if any of these unusual features are to 

be injected into the case, the defendant is the one to do 

it; it would not be sensible to make the prosecution in all 

cases prove the defendant’s sanity, sobriety and freedom 

from compulsion.

1 Wayne R. LaFave, Substantive Criminal Law § 1.8(c) at 

82-83 (2d ed. 2003). Other commentators have noted that even 

when a defense serves to negate an element of the crime, “[t]he 

defendant may have to bear a burden of production if he seeks 

to inject a particular theory for or seeks an instruction suggesting a particular theory for the absence of the required element 

. . . .” 1 Paul H. Robinson, Criminal Law Defenses § 4(a)(2) 

at 23 (1984).

With regard to the issue whether intoxication was involuntary under § 29-122, it is an “unusual feature” that intoxication 

is involuntary as set forth in the statute. Therefore, regardless 

of whether involuntary intoxication is a defense that negates 

the mental state required to commit a crime or whether it is 

a separate issue, it is the sort of issue that, if the defendant 

wishes to inject the issue into the case, does not violate due 

process to put the burden on the defendant to produce at least 

some evidence that his or her intoxication was involuntary. In 

the present case, Abejide produced no evidence to show that 

his intoxication was involuntary and the evidence presented by 

the State did not so indicate. Given the absence of evidence to 

support a finding of involuntary intoxication, we therefore conclude that the district court did not violate due process when it 

refused Abejide’s proposed instruction.

For completeness, we note that the facts of this case do not 

require us to address—and we do not address—whether other 

features of § 29-122 comply with due process requirements. 

In this regard, because there was no evidence that Abejide’s 

intoxication was involuntary, we need not consider whether 

§ 29-122 may constitutionally require “clear and convincing evidence” that intoxication was involuntary. In addition, 
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because Abejide failed to meet the burden of production, we 

need not consider whether § 29-122 may constitutionality 

require the defendant to bear the burden of persuasion on the 

issue of involuntary intoxication.

Based on the facts of this case, we conclude that the district 

court did not err and did not violate Abejide’s due process 

rights when it refused Abejide’s instruction regarding involuntary intoxication.

2. There Was Sufficient Evide

Support Abejide’s Convic

Abejide claims that the evidence in this case was insufficient to support his convictions for attempted first degree 

sexual assault and terroristic threats. He generally argues that 

the only evidence against him on certain elements was the 

victim’s testimony at trial and that the victim’s testimony was 

not credible. The credibility of witnesses was for the jury to 

decide. Therefore, if the jury found the testimony in this case 

to be credible, we determine that there was sufficient evidence 

to support Abejide’s convictions. See State v. Custer, 292 Neb. 

88, 871 N.W.2d 243 (2015).

With regard to the conviction for terroristic threats, Abejide 

notes that at trial, the victim testified on direct examination 

that he had threatened to “‘knock her out’” but that on crossexamination, he presented evidence of the victim’s pretrial 

deposition testimony in which she denied that Abejide had 

verbally threatened her. Brief for appellant at 29. Abejide contends that the victim’s trial testimony was the only evidence 

to support a finding that he had threatened the victim and that 

such testimony was contradicted by the victim’s own deposition testimony. With regard to both convictions, Abejide asserts 

that the victim’s testimony as a whole was not credible because 

portions of her testimony were contradicted by the testimony 

of other witnesses and she frequently testified that she did not 

know or could not recall certain details due to her intoxication 

at the time.
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Having reviewed the evidence in this case, in particular the 

testimony of the victim and the testimony of the police officer 

who came upon the scene during the incident, we conclude 

that there was sufficient evidence, if believed, to support the 

convictions. Abejide’s arguments focus on his claim that the 

victim was not credible because of inconsistencies in her testimony and her inability to clearly remember certain events. 

In this regard, we observe that the inconsistencies in the victim’s testimony were demonstrated to the jury through crossexamination, and therefore, the jury was in a position to fully 

evaluate the victim’s testimony.

In reviewing for sufficiency of the evidence, we do not 

resolve conflicts in the evidence or pass on the credibility 

of witnesses, because such matters are for the finder of fact. 

See Custer, supra. By its verdict, the jury as fact finder determined, based on all the evidence, including that of the victim, 

that the crimes charged had been committed. We determine 

that the evidence admitted at trial, viewed and construed most 

favorably to the State, was sufficient to support the convictions for attempted first degree sexual assault and terroristic threats.

3. Abejide’s Claims of Ineffective Ass

of Trial Counsel Are Either W

Merit or Not Reviewabl

on Direct App

Abejide claims that he received ineffective assistance of trial 

counsel for a number of reasons. We conclude with respect to 

each claim that either the claim is without merit or that the 

record on direct appeal is insufficient to determine the merits 

of the claim.

[9,10] The fact that an ineffective assistance of counsel 

claim is raised on direct appeal does not necessarily mean that 

it can be resolved. State v. Collins, 292 Neb. 602, 873 N.W.2d 

657 (2016). The determining factor is whether the record is 

sufficient to adequately review the question. Id. An ineffective 
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assistance of counsel claim will not be addressed on direct 

appeal if it requires an evidentiary hearing. Id.

Abejide first claims that he received ineffective assistance 

when counsel failed to move to dismiss the attempted sexual 

assault charge. We determined above that the evidence presented by the State was sufficient to support the convictions. 

The district court would have properly overruled a motion to 

dismiss, and Abejide cannot show that he was prejudiced by 

counsel’s purported failure to so move. Therefore, such claims 

are without merit.

Abejide also claims that he received ineffective assistance because trial counsel failed to adequately prepare his 

defense. He asserts that counsel did not diligently pursue 

potential witnesses to testify on his behalf and that counsel did not adequately present a consent defense, either in 

opening statement, in cross-examination of the victim, or 

in closing argument. Abejide’s claims involve allegations 

regarding evidence and arguments not presented at trial and 

not present in the record, and furthermore, his claims would 

require proof of matters outside the trial record. We therefore 

conclude that these claims cannot be adequately reviewed in 

this direct appeal.

Abejide finally claims that trial counsel failed to properly 

challenge the constitutionality of § 29-122. As we determined 

above, the district court did not violate due process when it 

refused Abejide’s proposed instruction on involuntary intoxication. Therefore, to the extent the constitutionality of § 29-122 

was implicated by the facts of this case, Abejide’s challenge 

was without merit. Therefore, Abejide’s claim of ineffective 

assistance of counsel with regard to counsel’s presentation of 

the challenge is without merit.

In sum, Abejide’s claims regarding trial counsel’s failure to 

file a motion to dismiss and to properly challenge the constitutionality of § 29-122 are without merit. Abejide’s claim of 

ineffective assistance of counsel with respect to presenting a 

proper defense cannot be reviewed in this direct appeal.
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4. The Court Properly Used Abejide’s

SORA Violation Convicti

That He Was a Habitual Cr

and His Sentence W

Otherwise Excessi

Abejide finally claims that the court imposed an excessive 

sentence. He argues, inter alia, that he should not have been 

sentenced as a habitual criminal, because the court improperly 

considered two prior convictions for violations of the SORA 

to support its finding that he was a habitual criminal. We conclude that such convictions could be used to support the habitual criminal determination and that the court did not otherwise 

abuse its discretion in sentencing.

(a) Habitual Criminal Enhancement

We first address Abejide’s claim that the district court erred 

when it used the prior SORA violation convictions to support 

the habitual criminal determination. As explained below, we 

reject this assignment of error and affirm the district court’s 

finding that Abejide was a habitual criminal under Neb. Rev. 

Stat. § 29-2221 (Reissue 2008).

Abejide was found to be a habitual criminal and was sentenced as such pursuant to § 29-2221, which provides:

Whoever has been twice convicted of a crime, sentenced, 

and committed to prison, in this or any other state or by 

the United States or once in this state and once at least 

in any other state or by the United States, for terms of 

not less than one year each shall, upon conviction of a 

felony committed in this state, be deemed to be a habitual 

criminal . . . .

The district court found that Abejide was a habitual criminal 

based on evidence of three prior convictions: a conviction in 

1994 for attempted first degree sexual assault of a child, for 

which he was sentenced to imprisonment for 6 to 9 years; 

a conviction in 2007 for a violation of the SORA, second 

offense, for which he was sentenced to imprisonment for 2 to 

4 years; and a conviction in 2011 for a violation of the SORA 
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for which he was sentenced to imprisonment for 20 months to 

4 years.

Abejide acknowledges that the current felony convictions 

for attempted first degree sexual assault and terroristic threats 

are felonies subject to application of the habitual criminal statute. However, he argues that the two prior convictions for violations of the SORA were, by their nature, subsequent offenses, 

and that as such, the SORA convictions cannot serve as prior 

convictions to support a finding that he was a habitual criminal 

in the current proceeding. Abejide claims that using the SORA 

prior convictions results in a “double penalty enhancement,” 

which is invalid under State v. Chapman, 205 Neb. 368, 287 

Neb. 697 (1980). Brief for appellant at 37.

In Chapman, supra, a jury found the defendant guilty of 

operating a motor vehicle while under the influence of alcohol. 

After a hearing, the trial court determined that the defendant 

had three previous convictions for driving while intoxicated 

and the court therefore found that the current offense should 

be treated as a third offense. Because the current offense in 

Chapman was found to be a “third offense,” it was reclassified 

from a misdemeanor to a felony—unlike the “true” felonies at 

issue in the current appeal. See, similarly, Goodloe v. Parratt, 

605 F.2d 1041, 1048 (8th Cir. 1979) (generally noting distinction between enhanced offenses and “‘true’” felonies). After an 

additional hearing, the court in Chapman determined that the 

defendant should be sentenced as a habitual criminal. The two 

prior convictions used to support the habitual criminal finding 

were a conviction for driving while intoxicated, third offense, 

and a conviction for malicious destruction of property.

In Chapman, we held that “offenses which are felonies 

because the defendant has been previously convicted of the 

same crime do not constitute ‘felonies’ within the meaning of 

prior felonies that enhance penalties under the habitual criminal statute.” 205 Neb. at 370, 287 N.W.2d at 698. Among other 

observations, we disapproved of the trial court’s use of such 

prior convictions under the habitual criminal statute, because 
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such use resulted in impermissible “double penalty enhancement through application of both a specific subsequent offense 

[provision found in the driving under the influence] statute 

and a habitual criminal statute.” 205 Neb. at 370, 287 N.W.2d 

at 699. We therefore determined that the defendant’s sentencing was controlled by the driving under the influence statutes 

and that he was exempt from operation of the habitual criminal provisions.

Although Abejide does not cite the case, his argument may 

be more similar to and could arguably find support in State 

v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999). In Hittle, the 

defendant was convicted of felony flight to avoid arrest and 

felony driving under a 15-year license suspension. The trial 

court found that the defendant was a habitual criminal based 

on evidence that he had two prior convictions, each of which 

resulted in imprisonment for not less than 1 year. One of the 

prior convictions was for operating a motor vehicle while his 

operator’s license was suspended or revoked.

The defendant in Hittle cited Chapman, supra, to support 

his argument that driving under suspension is a “subsequent 

offense” that enhances the punishment for a prior conviction 

for driving under the influence. 257 Neb. at 355, 598 N.W.2d 

at 29. In Hittle, we said that a conviction for driving under 

suspension was not a “subsequent offense” in the same sense 

as the conviction for driving under the influence, third offense, 

was a “subsequent offense” of driving under the influence in 

Chapman. However, in Hittle, we noted that the statute making 

it an offense to drive under suspension was an integral “part of 

the statutory scheme designed by the Legislature to criminalize 

the operation of a motor vehicle while under the influence of 

alcoholic liquor or drugs,” 257 Neb. at 355-56, 598 N.W.2d at 

29, and that one can commit the offense of driving under suspension only after having first committed multiple offenses of 

driving under the influence.

In Hittle, we said that “in a real sense, the penalty for this 

particular act [of driving under suspension] has been enhanced 
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by virtue of the defendant’s prior violations of other provisions within the same statute.” 257 Neb. at 356, 598 N.W.2d 

at 29. We therefore held in Hittle that “a felony conviction for 

driving under a suspended license . . . may not be used either 

to trigger application of the habitual criminal statute or as a 

prior offense for purposes of penalty enhancement pursuant 

thereto.” Id. We specifically determined in Hittle that because 

the defendant’s prior conviction for driving under suspension 

could not be considered as a prior conviction for purposes of 

the habitual criminal determination, the trial court had erred in 

sentencing the defendant as a habitual criminal.

In the present case, two of Abejide’s prior convictions were 

for violations of the SORA. And because Abejide acknowledges that the two current felonies are suitable true felonies 

subject to the habitual criminal statute, Abejide’s arguments are 

directed to the propriety of using the SORA offenses as prior 

convictions. In particular, Abejide argues that a conviction for 

a violation of the SORA “seeks to further punish an individual 

for a sex offense conviction if they [sic] do not abide by the 

SORA requirements.” Brief for appellant at 37. In effect, his 

argument is that one can violate Neb. Rev. Stat. § 29-4011 

(Supp. 2015), which generally makes it an offense to violate 

a registration requirement of the SORA, only after having 

first committed a sex offense that required the defendant to be 

subject to the SORA and that therefore, § 29-4011 is part of a 

statutory scheme to criminalize and punish the underlying sex 

offense. Abejide’s argument is reminiscent of Hittle.

At this juncture, it is important to distinguish the facts of 

this case compared to the facts in State v. Chapman, 205 Neb. 

368, 287 N.W.2d 697 (1980), and State v. Hittle, 257 Neb. 

344, 598 N.W.2d 20 (1999). The difference brings important 

language contained in the habitual criminal statute into greater 

focus and demonstrates why application of the habitual criminal statute to enhance Abejide’s sentence is appropriate. In 

Hittle, we noted the difference between a triggering offense, 

which is the offense for which the defendant is currently being 
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sentenced, and a prior offense, which is one of the offenses that 

establishes that the defendant was a habitual criminal at the 

time he or she committed the triggering offense. In Chapman, 

both the triggering offense and one of the prior offenses were 

convictions for driving under the influence, third offense. 

In Hittle, one of the triggering offenses and one of the prior 

offenses were convictions for driving under suspension.

In the present case, Abejide’s triggering offenses are felony 

convictions for attempted first degree sexual assault and for 

terroristic threats; Abejide makes no argument that either of 

these felony offenses cannot be a triggering offense for habitual criminal enhancement. Instead, Abejide’s contentions focus 

on the prior convictions; his argument is solely that his convictions for violations of the SORA cannot be prior offenses 

used to establish his status as a habitual criminal at the time he 

committed the triggering offenses in this case. For the reasons 

discussed below, we determine that the SORA convictions may 

be used as prior convictions under the habitual criminal statute, 

but we take this opportunity to indicate that we erroneously 

suggested in Chapman and Hittle that driving under the influence, third offense, and driving under suspension, respectively, 

could not be used as prior convictions where a defendant is 

sentenced under the habitual criminal statute.

[11] As noted above, the habitual criminal statute, § 29-2221, 

describes the triggering offense as “a felony,” but it describes 

the prior convictions as crimes for which the defendant has 

been “convicted . . . , sentenced, and committed to prison 

. . . for terms of not less than one year each.” By its terms, 

§ 29-2221 requires the triggering offense to be “a felony” 

before the habitual criminal statute will apply to the sentencing of the triggering offense. But in order to be one of 

the prior convictions that establishes habitual criminal status, 

§ 29-2221 does not require that the prior conviction was a 

“felony” per se; instead, it requires that the prior conviction 

resulted in a sentence of imprisonment for a term “of not less 

than one year.”
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In State v. Ramirez, 274 Neb. 873, 883, 745 N.W.2d 214, 

222 (2008), we recognized that a “felony conviction” and “a 

prior conviction resulting in a term of imprisonment of no less 

than 1 year” are not coextensive. In Ramirez, we determined 

that a previous felony “conviction for manufacturing or distributing marijuana” could be used both to prove an element of the 

triggering offense of being a felon in possession of a firearm 

under Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2014), which 

required that the defendant had “previously been convicted of a 

felony,” as well as to prove a prior conviction under § 29-2221 

to establish that the defendant was a habitual criminal and 

should be sentenced as a habitual criminal for the offense of 

being a felon in possession. 274 Neb. at 877, 745 N.W.2d 

at 219. We reasoned that “the predicates for §§ 28-1206 and 

29-2221 [are not] necessarily coextensive,” because the “predicate for violating § 28-1206 is a felony conviction, which may 

or may not result in the term of imprisonment of ‘not less 

than one year’ necessary to establish a predicate [prior conviction] for sentence enhancement under § 29-2221.” 274 Neb. at 

883, 745 N.W.2d at 222. We therefore recognized in Ramirez

that the description of prior convictions in § 29-2221 focuses 

on the length of the sentence and are not the equivalent of 

prior “felonies.”

The distinction between the descriptions in § 29-2221 of the 

triggering offense and the prior convictions which we recognized in Ramirez had been blurred in State v. Chapman, 205 

Neb. 368, 370, 287 N.W.2d 697, 698 (1980), when we stated 

that prior “offenses which are felonies because the defendant 

has been previously convicted of the same crime do not constitute ‘felonies’ within the meaning of prior felonies that enhance 

penalties under the habitual criminal statute.” (Emphasis supplied). As we noted above, contrary to the expression stated in 

Chapman, § 29-2221 does not describe the prior convictions as 

“prior felonies” but instead as prior convictions that resulted 

in a term of imprisonment of “not less than one year.” And as 

we recognized in Ramirez, a “felony conviction” and “a prior 
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conviction resulting in a term of imprisonment of no less than 

1 year” are not coextensive. 274 Neb. at 883, 745 N.W.2d at 

222. Thus, the description that applies to the triggering offense, 

described in § 29-2221 as a “felony,” does not necessarily 

apply to prior convictions which are described differently in 

the same statute. In sum, under the habitual criminal statute, 

the triggering offense must be “a felony,” but the focus on prior 

convictions must simply be on convictions which resulted in 

imprisonment of not less than 1 year.

Abejide has recognized that his triggering offenses are true 

felonies and, as such, can trigger application of the habitual 

criminal statute, § 29-2221. Abejide’s triggering felonies are 

unlike the triggering felonies discussed in Chapman, supra, 

and State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999). 

In Chapman, the crime of driving under the influence, third 

offense, was a misdemeanor enhanced to a felony, and in 

Hittle, the triggering crime of driving under suspension was a 

felony as a result of a statutory scheme based on repetition of 

misdemeanor driving under the influence offenses. For triggering offense purposes, they were not “true” felonies.

Abejide raises an issue regarding double penalty enhancement with respect to the prior convictions; however, the concern to avoid double penalty enhancement is more properly 

directed to the propriety of penalizing the current triggering 

crime under the habitual criminal statute. Although double 

penalty enhancement is disfavored, see Chapman, supra, we 

have long recognized that the habitual criminal statute is an 

enhanced penalty permissible to punish repetitive criminal 

conduct reflected in the felony case now before the court. See 

State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008). Under 

the habitual criminal statute, impermissible double penalty 

enhancement is a concept consideration which is applied to the 

triggering crime, but not applied to a prior conviction as urged 

by Abejide. The habitual criminal statute penalizes current 

crimes but it is not a further punishment or double penalty for 

the previous convictions. The role of the previous convictions 
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in the habitual criminal statute is to demonstrate that the 

defendant has been twice convicted of crimes each of which 

resulted in imprisonment of “not less than one year.”

In Chapman and Hittle, we reasoned that the crimes of driving under the influence, third offense, and driving under suspension, respectively, were part of discrete statutory schemes 

which already incorporated enhancement mechanisms and 

could not be further enhanced as triggering felonies under 

§ 29-2221. The reasoning does not lead to the conclusion that 

convictions of such crimes can never be used as prior convictions under the habitual criminal statute.

The habitual criminal statute does not enhance the penalty for prior convictions; it is applied to the penalty for the 

triggering offense. If the penalty for the triggering offense is 

enhanced only pursuant to the habitual criminal statute, the 

fact that the penalty for one of the prior convictions was itself 

enhanced does not result in a double penalty enhancement of 

the triggering offense. As noted, the habitual criminal statute 

is focused on enhancing the penalty for the current conviction 

when the defendant has prior convictions of a certain type; the 

Legislature chose to describe that type of crime in terms of the 

sentence imposed rather than in terms of the classification of 

the prior offense as a felony.

Given the foregoing understanding, Chapman and Hittle

should have been limited to holding that driving under the 

influence, third offense, and driving under suspension were 

ineligible to serve as triggering offenses under § 29-2221. 

We disapprove State v. Chapman, 205 Neb. 368, 287 N.W.2d 

697 (1980), and State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 

(1999), to the extent they suggest or hold that the prior convictions of driving under the influence, third offense, and driving 

under suspension, each resulting in imprisonment of not less 

than 1 year, cannot be used as prior convictions to establish 

habitual criminal status when applying § 29-2221. Instead, 

such convictions may be used as prior convictions under the 

habitual criminal statute as long as they meet the statutory 
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requirement that such convictions resulted in terms of imprisonment for not less than 1 year.

In the present case, each of the two current offenses is a 

felony and Abejide had prior convictions for violations of 

the SORA for which he was sentenced to terms of imprisonment for not less than 1 year. Whether the SORA offenses 

could serve as the triggering offense for a habitual criminal 

enhancement is not before us. However, it was proper to use 

them as prior convictions, because they each met the requirement under § 29-2221 of a sentence of “not less than one 

year.” We therefore determine that the district court did not err 

when it found Abejide to be a habitual criminal and sentenced 

him accordingly.

(b) Excessiveness in General

Having determined that the court did not err when it found 

Abejide to be a habitual criminal, we consider his argument 

that his sentences were excessive. We first note that at the 

time of the offenses in this case, attempted first degree sexual 

assault was a Class III felony pursuant to Neb. Rev. Stat. 

§ 28-319(2) (Reissue 2008) and Neb. Rev. Stat. § 28-201(4)(b) 

(Cum. Supp. 2014), and making terroristic threats was a Class 

IV felony pursuant to § 28-311.01(2). At the time, the sentencing range for a Class III felony was imprisonment for 1 to 

20 years, and the sentencing range for a Class IV felony was 

imprisonment for a maximum of 5 years. See Neb. Rev. Stat. 

§ 28-105 (Cum. Supp. 2014). However, because Abejide was 

found to be a habitual criminal, § 29-2221(1) set the sentencing ranges for both felony convictions as imprisonment for a 

mandatory minimum of 10 years and a maximum of 60 years. 

Therefore, the sentences of imprisonment for 10 to 20 years for 

attempted first degree sexual assault and for 10 to 10 years for 

terroristic threats were within statutory limits.

Because the sentences were within statutory limits, we 

review the sentences imposed for an abuse of discretion. See 

State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016). With 
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regard to both sentences, we note that by the operation of 

§ 29-2221(1), the court was required to impose a mandatory 

minimum sentence of 10 years for each offense; therefore, 

because the court had no discretion to impose a minimum 

sentence of less than 10 years and because the court imposed 

the mandatory minimum for each conviction, it did not abuse 

its discretion with regard to the minimum. With regard to the 

sentence for terroristic threats, the court imposed a maximum 

term of 10 years which was equal to the mandatory minimum 

sentence. Therefore, because the court imposed the shortest 

sentence permissible under § 29-2221(1), there can be no argument that the court abused its discretion or imposed an excessive sentence for the terroristic threats conviction.

[12] With regard to the conviction for attempted first degree 

sexual assault, the court imposed a maximum sentence of 

20 years. In 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 amount of violence involved in the commission 

of the crime. State v. Collins, 292 Neb. 602, 873 N.W.2d 657 

(2016). Abejide contends that the district court did not properly 

consider his criminal history. Abejide asserts that although his 

history admittedly included convictions for first degree sexual 

assault and attempted first degree sexual assault of a child, such 

convictions were in 1977 and 1993, respectively, and since the 

time of these prior offenses, his criminal history reflects convictions only for less serious offenses. He also asserts that the 

court failed to adequately consider that the victim in this case 

did not suffer physical injury and did not complete a victim 

impact statement.

Abejide further argues that, in addition to the length of the 

sentences, the court abused its discretion when it ordered the 

sentences to be served consecutive to one another. He cites 

State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006), 
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in which we found an abuse of discretion in sentencing, and 

for relief ordered, inter alia, that the sentences for two of the 

convictions should run concurrently because both offenses 

resulted from the same act. Our disposition in Iromuanya was 

not a categorical statement regarding whether sentences must 

be ordered to be served concurrently, and we note further that 

in other cases, we have found that there was not an abuse of 

discretion when a court ordered sentences to be served consecutively where the charged offenses were alleged to have arose 

from a single transaction. See State v. Van, 268 Neb. 814, 688 

N.W.2d 600 (2004).

We find no merit to Abejide’s claim that the district court 

imposed excessive sentences based on either the maximum 

term for the attempted first degree sexual assault or its order 

directing the sentences to run consecutively. The court stated in 

its sentencing order that it based its sentencing on “the nature 

and circumstances of the crimes and the history, character and 

condition” of Abejide and its determination that “imprisonment of [Abejide] is necessary for the protection of the public 

because a lesser sentence would depreciate the seriousness of 

his crimes and promote disrespect for the law.” Given the statutes, the record before us, and the court’s stated reasoning, we 

do not think that the considerations argued by Abejide indicate 

the court abused its discretion.

VI. CONCLUSION

Having rejected Abejide’s assignments of error, we affirm 

his convictions and sentences for attempted first degree sexual 

assault and terroristic threats.

Affirme

Stacy, J., not participating