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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. CAMPBELL

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).

STATE OF NEBRASKA, APPELLEE,

V.

DANIEL J. CAMPBELL, APPELLANT.

Filed November 5, 2019. No. A-18-723.

Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge. Affirmed.

Gregory A. Pivovar for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

MOORE, Chief Judge, and PIRTLE and WELCH, Judges.

PIRTLE, Judge.

I. INTRODUCTION

Daniel J. Campbell appeals the order of the Douglas County District Court denying his 

motion for postconviction relief without an evidentiary hearing and without appointing counsel. 

The district court held that Campbell’s ineffective assistance of counsel claims did not warrant an 

evidentiary hearing because he failed to establish prejudice. The district court further held 

Campbell’s claims of juror misconduct and improper jury instructions were issues that could have 

been brought on direct appeal and therefore were procedurally barred. For the reasons that follow, 

we affirm.
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II. BACKGROUND

1. TRIAL PROCEEDINGS AND DIRECT APPEAL

After a jury trial, Campbell was convicted of seven felonies: two counts of attempted 

assault on an officer (25 to 25 years’ imprisonment), one count of discharging a firearm while in 

or in proximity of any motor vehicle at any person or occupied motor vehicle (10 to 10 years’

imprisonment), three counts of use of a deadly weapon to commit a felony (10 to 10 years’

imprisonment), and one count of possession of a deadly weapon by a prohibited person (10 to 10 

years’ imprisonment). The convictions were a result of Campbell’s actions of firing a shotgun at 

two Nebraska State Patrol troopers as they were attempting to initiate a traffic stop of the vehicle 

Campbell was a passenger in. The sentences on each count were ordered to run consecutively, 

resulting in a total sentence of 100 to 100 years’ imprisonment.

On direct appeal, we affirmed Campbell’s convictions and sentences on all seven charges. 

See State v. Campbell, No. A-16-176, 2016 WL 6872979 (Neb. App. Nov. 22, 2016) (selected for 

posting to court website). We found that there was sufficient evidence to find Campbell guilty on 

all seven charges in the amended information and that the district court did not impose excessive 

sentences. Id.

Campbell was represented by the same attorney at trial and on direct appeal.

2. POSTCONVICTION PROCEEDINGS

In August 2017, Campbell filed a pro se motion for postconviction relief claiming 

ineffective assistance of trial and appellate counsel, juror misconduct, and improper jury 

instructions.

Campbell alleged his trial counsel was ineffective for (1) failing to argue his motions for 

new trial or withdraw and allow him to argue the motions himself; (2) continuing to represent him 

through the appeal despite obvious dissatisfaction with his performance; (3) failing to properly 

investigate and challenge the production of the weapon found months after the incident; (4) failing 

to challenge and properly cross-examine and impeach the State’s witness, Marissa McCormack; 

(5) failing to seek independent testing of the firearm alleged to have been used in the incident; (6) 

failing to depose one of the State’s witnesses, Christian Sipherd, and present to him a lineup to 

show that no identification of Campbell could be made; (7) failing to challenge and seek evaluation 

of McCormack’s competency; (8) failing to object to testimony regarding Campbell’s possession 

of the same or a similar shotgun days before the incident; (9) failing to challenge discussion 

between two witnesses in close proximity to one of the jurors as violating the sequestration order 

and denying Campbell a fair trial; (10) failing to challenge certain jury instructions as incomplete; 

(11) failing to seek an independent evaluation of DNA evidence to show it as inconclusive; (12) 

failing to have the gunshot residue testing that was done processed; and (13) failing to sequester 

the jury in light of a recent shooting of an Omaha police officer.

Campbell further alleged that certain communications between two of the State’s witnesses 

made within close proximity of one of the jurors outside of the courtroom amounted to juror 

misconduct and the district court’s failure to declare a mistrial or remove the juror from the case 

denied him a fair trial.
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Finally, Campbell alleged that the jury was improperly instructed on the charge of 

discharging a firearm while in or in proximity of any motor vehicle at any person or occupied 

motor vehicle. Campbell argues that the instruction that was given to the jury improperly excluded 

the term “recklessly” and that such omission removed an essential issue or element of the case. 

Campbell correctly noted in his postconviction motion that no objection was made to any of the 

jury instructions at trial.

3. DENIAL OF POSTCONVICTION RELIEF

On July 9, 2018, the district court denied Campbell’s motion for postconviction relief 

without an evidentiary hearing. It concluded that Campbell’s claims of ineffective assistance of 

counsel were “generic” and failed to allege prejudice.

[T]he facts alleged by [Campbell] relating to failure to investigate are generic, do not state 

what exculpatory evidence would have been gathered, or how a different result would have

been obtained. Such facts are insufficient to warrant an evidentiary hearing. See State v. 

Biloff, 18 Neb. App. 215, 778 N.W.2d 497 (2009) (finding it insufficient to state counsel 

was ineffective in failing to properly investigate when defendant failed to include 

“allegations about what his attorney would have uncovered had his attorney interviewed 

witnesses or examined the evidence”).

As to both of Campbell’s claims of juror misconduct and improper jury instructions, the district 

court held that such claims were issues that could have been brought on direct appeal and were 

therefore procedurally barred. Campbell timely appeals.

III. ASSIGNMENTS OF ERROR

Campbell assigns, restated, that the district court erred in (1) denying him an evidentiary 

hearing on his motion for postconviction relief based on allegations of ineffective assistance of 

counsel for failure to investigate and challenge the State’s witnesses and evidence, (2) finding that 

his postconviction claim of juror misconduct was procedurally barred by failure to raise it on direct 

appeal, and (3) finding that his postconviction claim of improper jury instructions was procedurally 

barred by failure to raise it on direct appeal.

IV. STANDARD OF REVIEW

In appeals from postconviction proceedings, an appellate court reviews de novo a 

determination that the defendant failed to allege sufficient facts to demonstrate a violation of his 

or her constitutional rights or that the record and files affirmatively show that the defendant is 

entitled to no relief. State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).

Whether a claim raised in a postconviction proceeding is procedurally barred is a question 

of law which is reviewed independently of the lower court’s ruling. State v. Tyler, 301 Neb. 365, 

918 N.W.2d 306 (2018).

V. ANALYSIS

Postconviction relief is available to a prisoner in custody under sentence who seeks to be 

released on the ground that there was a denial or infringement of his or her constitutional rights 
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such that the judgment was void or voidable. State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). 

In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute 

a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the 

judgment against the defendant to be void or voidable. State v. Allen, supra. Relief under the 

Nebraska Postconviction Act, Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016), is a very 

narrow category of relief. State v. Allen, supra.

On appeal from the denial of postconviction relief without an evidentiary hearing, the 

question is not whether the movant was entitled to relief by having made the requisite showing. 

State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018). Instead, it must be determined whether 

the allegations were sufficient to grant an evidentiary hearing. Id. If a postconviction motion 

alleges only conclusions of fact or law, or if the records and files in the case affirmatively show 

that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing. 

State v. Barber, 26 Neb. App. 339, 918 N.W.2d 359 (2018) (citing State v. Thorpe, 290 Neb. 149, 

858 N.W.2d 880 (2015)). Thus, in a postconviction proceeding, an evidentiary hearing is not 

required (1) when the motion does not contain factual allegations which, if proved, constitute an 

infringement of the movant’s constitutional rights; (2) when the motion alleges only conclusions 

of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to 

no relief. Id.

1. INEFFECTIVE ASSISTANCE OF COUNSEL

When, as here, a defendant was represented both at trial and on direct appeal by the same 

counsel, the defendant’s first opportunity to assert ineffective assistance of counsel is in a motion 

for postconviction relief. State v. Henderson, supra. To prevail on a claim of ineffective assistance 

of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

the defendant must show that his or her counsel’s performance was deficient and that this deficient 

performance actually prejudiced the defendant’s defense. Id. A court may address the two prongs 

of this test, deficient performance and prejudice, in either order. Id.

In order to show prejudice, the defendant must demonstrate a reasonable probability that 

but for counsel’s deficient performance, the result of the proceeding would have been different. 

State v. Alford, 24 Neb. App. 213, 884 N.W.2d 470 (2016). A reasonable probability does not 

require that it be more likely than not that the deficient performance altered the outcome of the 

case; rather, the defendant must show a probability sufficient to undermine confidence in the 

outcome. State v. Huston, 302 Neb. 202, 922 N.W.2d 723 (2019). Because we find that Campbell 

did not establish actual prejudice in his motion for postconviction relief, we need not address 

whether his counsel’s performance was deficient. We will address each of the claims of 

ineffectiveness raised by Campbell in turn.

(a) Failure to Argue Motions for New Trial or Withdraw

Campbell asserts that trial counsel failed to argue his pro se motions for new trial, or 

otherwise withdraw as counsel so that Campbell had the opportunity to argue the motions on his 

own. Campbell argues that “continuing as counsel of record and prosecuting the appeal in this case 

wherein the appropriate issues were not briefed and argued to the court” caused him prejudice. 
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Brief for appellant at 28-29. However, Campbell fails to identify any of the issues raised in those 

motions or how trial counsel’s failure to argue the motions at sentencing or withdraw would have 

changed the district court’s decision to deny those motions. The record indicates that the district 

court reviewed Campbell’s pro se motions for new trial and nevertheless made the decision to deny 

the motions. We find that Campbell has not shown prejudice by trial counsel’s actions and this 

argument is without merit.

(b) Continuing to Represent Campbell Through Appeal Despite His Dissatisfaction

Campbell asserts that trial counsel was deficient by “ignor[ing] the obvious dissatisfaction 

that his client had with him” and continuing to represent Campbell through the appeal of his case. 

Brief for appellant at 29. However, Campbell again has failed to provide any showing as to how 

the result of the appeal would have been different had his counsel withdrawn. In his postconviction 

motion, Campbell merely argues that continuing to represent him on appeal “further damaged the 

case” but fails to indicate what damage was done. Campbell has failed to show prejudice and his 

argument is without merit.

(c) Failure to Properly Investigate and Challenge Production of Firearm

Campbell argues that trial counsel was deficient for failing to investigate and challenge the 

production of the firearm that was discovered several months after the incident. Specifically, 

Campbell argues that trial counsel should have conducted depositions regarding the discovery of 

the weapon, particularly the homeowner who found it. However, Campbell fails to provide any 

indication of what new or conflicting evidence would have been revealed had those depositions 

occurred. Campbell merely states in his postconviction motion that challenging the State’s physical 

evidence, the firearm, “would have changed the outcome [of] the trial drasticly [sic].”

In State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018), the defendant argued that his 

trial counsel was ineffective for failing to hire a crime scene investigator to rebut inconsistencies 

in the testimony of one of the State’s witnesses. Similarly, Campbell argues that the weapon’s 

“miraculous appearance” should have been investigated further and depositions taken to devalue 

the use of the gun as evidence. Brief for appellant at 29. “A petitioner’s postconviction claims that 

his or her defense counsel was ineffective in failing to investigate possible defenses are too 

speculative to warrant relief if the petitioner fails to allege what exculpatory evidence the 

investigation would have procured and how it would have affected the outcome of the case.” State 

v. Newman, 300 Neb. at 792, 916 N.W.2d at 412 (citing State v. Edwards, 284 Neb. 382, 821 

N.W.2d 680 (2012)). Campbell has not provided any indication of what further depositions 

surrounding the weapon, or other additional investigation, would have revealed or how it would 

have affected the outcome of the case. Campbell has not established prejudice and an evidentiary 

hearing was not warranted on this claim.

(d) Failure to Challenge and Properly Cross-Examine and Impeach

State’s Witness Marissa McCormack

Campbell next argues that trial counsel was deficient for failing to challenge and 

adequately cross-examine and impeach the State’s key witness, Marissa McCormack, the driver 
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of the vehicle involved in the incident. Campbell primarily argues that McCormack has a “history 

of mental illness and drug abuse” and that trial counsel should have “use[d] this to the advantage 

of [Campbell].” Brief for appellant at 30. Despite pointing out the fact that McCormack made three 

statements to police, and that they were inconsistent with one another, Campbell fails to allege 

what testimony his counsel would have elicited had he further cross-examined McCormack. See 

State v. Newman, 300 Neb. at 783, 916 N.W.2d at 407 (defendant’s “allegation of failure to 

cross-examine a witness on a minor credibility issue is not sufficient to demonstrate either deficient 

performance or resulting prejudice”).

As with the production of the weapon as evidence, Campbell asserts, in conclusory fashion, 

that proper cross-examination would have drastically changed the outcome of the case. There is 

no indication as to how trial counsel could have changed the outcome of Campbell’s trial through 

cross-examination of McCormack, and Campbell has failed to establish prejudice on this claim.

(e) Failure to Seek Independent Testing of Firearm

Campbell asserts that trial counsel was deficient for failing to seek independent testing of 

the firearm after it was discovered several months after the incident. While counsel in his brief 

suggests that independent testing of the firearm could have revealed “the possibility of other 

fingerprints” or otherwise casted doubt on the fact that the firearm was the same one used to fire 

at the troopers, there is nothing in the record, nor in Campbell’s postconviction motion, to support 

such arguments. Brief for appellant at 31. A petitioner’s postconviction claims that his or her 

defense counsel was ineffective in failing to investigate possible defenses are too speculative to 

warrant relief if the petitioner fails to allege what exculpatory evidence the investigation would 

have procured and how it would have affected the outcome of the case. State v. Newman, 300 Neb. 

770, 916 N.W.2d 393 (2018). Again, Campbell states that further investigation would have 

changed the outcome of the case, but fails to articulate how. Such conclusory statements are not 

sufficient to warrant an evidentiary hearing.

(f) Failure to Depose Christian Sipherd

Campbell next argues that trial counsel was deficient in failing to depose and present a 

lineup to the State’s witness, Christian Sipherd, who was performing snow removal at Rockbrook 

Village, an area being searched by police, the night of the incident. Campbell argues that Sipherd’s 

testimony that he saw someone on the night of the incident, near the neighborhood Campbell was 

later arrested and the firearm discovered, “would have been rendered virtually useless” as he would 

have been unable to identify Campbell. Brief for appellant at 32. However, we find that Campbell 

has not shown a reasonable likelihood that absent this alleged deficiency, the outcome at trial 

would have been different.

The State’s evidence included McCormack’s testimony identifying Campbell as the 

passenger in her vehicle who fired the shots, physical DNA evidence tying Campbell to items left 

in McCormack’s car, and the fact that the firearm was discovered in the neighborhood Campbell 

was found by police hiding in a vehicle the night of the incident, and was determined to be the 

same gun used to fire at the State Patrol troopers. Furthermore, Sipherd’s testimony admitted that 

he could not identify Campbell as the person he saw that night with certainty. In light of all the 
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remaining evidence, which we considered on direct appeal, we find Campbell has not established 

prejudice.

(g) Failure to Challenge Competency of McCormack

We have already discussed, in subsection (1)(d) of the analysis section in this opinion, the 

alleged deficiencies in trial counsel’s approach to cross-examination and impeachment of the 

State’s witness, McCormack. In similar fashion, Campbell alleges that an evaluation of 

McCormack’s competency would have shown her testimony to be unreliable. However, Campbell 

fails to show how a competency evaluation would have affected the outcome of the trial. Evidence 

was introduced that McCormack used methamphetamine frequently, including the day of the 

incident, and would not take her prescribed medication when using the drug, which caused her to 

be unstable. On appeal, we likewise considered this evidence in Campbell’s challenge to the 

sufficiency of the evidence. Nevertheless, we found there to be sufficient evidence and affirmed 

Campbell’s convictions on all seven charges. Similarly, we find that the mere allegation that trial 

counsel failed to challenge the competency of McCormack did not establish prejudice and 

Campbell’s claim did not warrant an evidentiary hearing.

(h) Failure to Object to Testimony Regarding Campbell’s 

Possession of Same or Similar Shotgun

In his postconviction motion, Campbell asserts that his trial counsel was deficient for 

failing to object, as improper character evidence under Neb. Rev. Stat. § 27-404 (Reissue 2016), 

to testimony by two of the State’s witnesses that they had previously seen Campbell in possession 

of a firearm. Campbell claims this evidence was irrelevant because his DNA or fingerprints were 

never found on the weapon later recovered and identified as used during the shooting. However, 

in his brief, Campbell’s counsel on this appeal argues that Campbell’s trial counsel was deficient 

for failing to challenge testimony regarding Campbell’s prior drug use through a motion in limine. 

We decline to address this issue.

Absent plain error, when an issue is raised for the first time in an appellate court, it will be 

disregarded inasmuch as the trial court cannot commit error regarding an issue never presented 

and submitted to it for disposition. State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017). Because 

the issue regarding Campbell’s prior drug use was not raised in his postconviction motion, the 

district court could not have committed error in denying an evidentiary hearing on the alleged 

deficiency of trial counsel for failing to raise the issue through a motion in limine.

In regard to the issue raised in Campbell’s postconviction motion, we find that Campbell 

has failed to sufficiently establish prejudice. There is no indication how exclusion of the testimony 

at issue would have affected the result of Campbell’s trial, or even that such an objection would 

have been successful. Section 27-404 permits evidence of prior acts for purposes such as “motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” At 

trial, the primary issue was whether Campbell was the shooter. Surely testimony regarding 

Campbell’s possession of a shotgun, particularly one that compares to the one identified as used 

in the shooting, is relevant to issues such as the shooter’s identity. Therefore, we find that Campbell 

has not established prejudice and an evidentiary hearing was not required.
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(i) Failure to Challenge Discussion Between Two Witnesses in

Close Proximity to One of Jurors as Violating Sequestration

Order and Denying Campbell Fair Trial

This issue was alleged as a separate ground for relief in Campbell’s pro se motion for 

postconviction relief and is discussed in detail in subsection (2) of the background section in this 

opinion.

(j) Failure to Challenge Jury Instructions as Incomplete

This issue was alleged as a separate ground for relief in Campbell’s pro se motion for 

postconviction relief and is discussed in detail in subsection (3) of the background section in this 

opinion.

(k) Failure to Seek Independent Evaluation of DNA Evidence

Campbell next argues that trial counsel was deficient for failing to hire an independent 

expert to analyze and evaluate the DNA evidence found on a toothbrush in McCormack’s vehicle. 

Standing alone, this allegation is insufficient to warrant an evidentiary hearing. We find persuasive 

the district court’s comparison to State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015). In Sellers, 

the petitioner claimed his trial counsel was ineffective for failing to hire an independent 

investigator, consult a ballistics expert, review the crime scene, etc. The Nebraska Supreme Court 

found that such allegations were insufficient to warrant an evidentiary hearing, as they did not 

establish prejudice.

However, [the petitioner] failed to allege how undertaking the above activities 

would have produced a different outcome at trial. More specifically, he did not identify 

any exculpatory evidence that the activities would have procured. As the district court 

observed, his allegations consisted solely of conclusory statements, such as, “‘[I]f trial 

and/or appellate counsel would have investigated and hired an investigator to fully 

investigate the case at bar, there surely would have been a different outcome in [his] trial.’”

Such conclusory allegations are insufficient to establish the prejudice prong of the 

Strickland test. We have previously observed that a petitioner’s postconviction claims that 

his or her trial counsel was ineffective in failing to investigate possible defenses are too 

speculative to warrant relief if the petitioner fails to allege what exculpatory evidence that 

the investigation would have procured and how it would have affected the outcome of the 

case. And in assessing postconviction claims that trial counsel was ineffective in failing to 

call a particular witness, we have upheld dismissal without an evidentiary hearing where 

the motion did not include specific allegations regarding the testimony which the witness 

would have given if called.

Id. at 27-29, 858 N.W.2d at 587.

Here, Campbell again fails to allege prejudice with any sort of particularity. While 

Campbell alleges that his trial counsel should have hired an expert to testify regarding match 

probabilities surrounding the DNA evidence acquired from items in McCormack’s vehicle, he fails 

to identify a specific witness that should have been called, or what they would have testified to. 
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Similar to Sellers, this allegation does not sufficiently allege what exculpatory evidence would 

have been elicited through expert testimony and how it would have affected the outcome of the 

trial, and was insufficient to warrant an evidentiary hearing.

(l) Failure to Have Gunshot Residue Testing Processed

Campbell asserts trial counsel was deficient for failing to request processing of the gunshot 

residue (GSR) testing that was done on Campbell the night of the incident. It is Campbell’s 

contention that the results of the GSR testing would “prove the innocence of [Campbell]” and 

“show that there was reasonable doubt as to having fired a weapon on that evening.” Brief for 

appellant at 36. However, we find that any deficiency in failing to process the GSR testing does 

not create a reasonable probability that the result of Campbell’s trial would have been different. 

By its very nature, gunshot residue is susceptible to being shaken or washed off with ease. 

Therefore, its absence alone does little to establish an individual did not recently fire a weapon.

At trial, State Trooper Anthony Sattlefield testified that testing of GSR kits is available 

upon request by the prosecution or defense based on factors that determine “whether or not it adds 

value to the investigation[.]” In this case, one factor in determining the value of GSR testing was 

the fact Campbell had been walking around snowy areas for up to an hour. Based on the other 

evidence introduced at trial, and the minimal value GSR testing would have added to this case, we 

find that trial counsel’s failure to seek processing of the GSR testing was not sufficient to 

undermine confidence in the outcome of Campbell’s trial. Therefore, Campbell has not established 

prejudice and an evidentiary hearing was not required.

(m) Failure to Sequester Jury

Finally, Campbell alleges that his trial counsel was deficient for failing to sequester the 

jury in light of a highly publicized officer-involved shooting that resulted in the death of an Omaha 

police officer. Campbell alleges the proximity in time of the officer’s death to his trial “shed 

unfavorable light” on him to the jury. Despite the contention that Campbell “would have chosen 

to have the jury sequestered, but counsel failed to give him the choice” there is no indication how 

sequestration of the jury would have changed the outcome of the trial. Brief for appellant at 36. 

Therefore, Campbell’s claim is without merit and an evidentiary hearing was not required.

2. JUROR MISCONDUCT

Campbell’s next assignment of error is that the district court improperly denied his motion 

for postconviction relief on the basis of juror misconduct without first holding an evidentiary 

hearing. Campbell argues that the claim asserted in his postconviction motion was incorrectly 

construed by the district court as a direct challenge to alleged juror misconduct, rather than a claim 

of ineffective assistance of counsel for failure to preserve the issue and raise the misconduct on 

direct appeal.

Even if we assume that Campbell properly asserted this claim as alleging ineffective 

assistance of counsel, we find that it is without merit. Whether a criminal defendant is claiming 

juror misconduct, or ineffective assistance of counsel, he or she must establish prejudice under 

either theory. See State v. Harrison, 264 Neb. 727, 651 N.W.2d 571 (2002). As previously 
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mentioned, to establish prejudice under an ineffective assistance of counsel claim, a defendant 

must demonstrate a reasonable probability that but for counsel’s deficient performance, the result 

of the proceeding would have been different. State v. Alford, 24 Neb. App. 213, 884 N.W.2d 470 

(2016). A reasonable probability is such that is sufficient to undermine confidence in the outcome. 

State v. Huston, 302 Neb. 202, 922 N.W.2d 723 (2019). However, because we find that the records 

and files affirmatively show that Campbell was not entitled to relief based on the alleged juror 

misconduct, any purported deficiency by trial counsel was not prejudicial, and therefore an 

evidentiary hearing was not required.

A criminal defendant claiming jury misconduct bears the burden of proving, by a 

preponderance of the evidence, (1) the existence of jury misconduct and (2) that such misconduct 

was prejudicial to the extent that the defendant was denied a fair trial. State v. McSwine, 24 Neb. 

App. 453, 890 N.W.2d 518 (2017). In this case, Campbell alleges that he was denied a fair trial 

when two of the State’s witnesses were observed by defense counsel discussing the case in the 

hallway during a recess near one of the jury members. After the incident at issue took place, 

Campbell’s attorney immediately notified the trial judge of what he had observed. Campbell’s 

attorney was outside the courtroom when he noticed two of the State’s witnesses, who had not yet 

testified, talking about Campbell’s arrest. One of the witnesses, State Trooper Trinity Jones, 

indicated that he was prepared to fire his weapon under the circumstances. One of the jurors was 

standing nearby as the conversation took place.

Campbell’s attorney indicated that he immediately intervened and informed Jones that he 

was not permitted to discuss the case. Campbell’s attorney informed the court that the conversation 

took place “in direct earshot of [the juror]” and that the witnesses were within five feet of the juror. 

The trial judge then proceeded to call in the juror and asked whether she had heard anyone 

discussing the case during the recess. The juror indicated that she had not. Because we find that 

the record indicates the juror was not influenced by any outside discussion of the case by the State’s 

witnesses, Campbell has not shown he was prejudiced by trial counsel’s failure to preserve and 

raise the issue on appeal. This claim is without merit and it was not in error for the district court to 

deny an evidentiary hearing.

3. IMPROPER JURY INSTRUCTIONS

Campbell’s final assignment of error is that the district court improperly denied his motion 

for postconviction relief on the basis of improper jury instructions without first holding an 

evidentiary hearing. Campbell argues that the claim asserted in his postconviction motion was 

incorrectly construed by the district court as a direct challenge to an error in the jury instructions 

given at trial, rather than a claim of ineffective assistance of counsel for failure to preserve the 

issue and raise the purported error on direct appeal.

A motion for postconviction relief cannot be used to secure review of issues which were 

or could have been litigated on direct appeal, no matter how those issues may be phrased or 

rephrased. State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015). On direct appeal of Campbell’s 

convictions, the only issues raised were the sufficiency of the evidence and whether the sentences 

were excessive. See State v. Campbell, No. A-16-176, 2016 WL 6872979 (Neb. App. Nov. 22, 

2016) (selected for posting to court website). Aside from the fact that the propriety of the jury 
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instructions was not raised on direct appeal, the trial record indicates that no objection was made 

to any of the jury instructions at trial. Failure to object to a jury instruction after it has been 

submitted to counsel for review precludes raising an objection on appeal absent plain error 

indicative of a probable miscarriage of justice. State v. Watt, 285 Neb. 647, 832 N.W.2d 459 

(2013). Therefore, if Campbell’s postconviction claim is construed as a direct challenge to the jury 

instructions given at trial, it is procedurally barred and the district court did not err in denying the 

claim without an evidentiary hearing.

Even if we assume, without deciding, that Campbell’s claim was appropriately raised as an 

ineffective assistance of counsel claim, the district court did not err in denying the claim without 

an evidentiary hearing. As previously mentioned, an evidentiary hearing is not required “when the 

records and files affirmatively show that the defendant is entitled to no relief.” State v. Barber, 26 

Neb. App. 339, 345, 918 N.W.2d 359, 366 (2018).

In his postconviction motion, Campbell asserts “instructions #10 and 4” removed an 

essential element from the jury on the charge of Discharging a Firearm While in or in Proximity 

of any Motor Vehicle at any Person or Occupied Motor Vehicle. However, the record shows 

instruction No. 4 dealt with the presumption of innocence and instruction No. 10 dealt with the 

definition of evidence. In his brief, counsel for Campbell refers to instruction Nos. 2 and No. 5, 

which we note cover the substantive matter addressed in Campbell’s postconviction motion. 

Instruction No. 2 reads, in pertinent part:

In Count 6 of the Amended Information the Defendant is charged with Discharging 

a Firearm While in or in Proximity of any Motor Vehicle at any Person, Occupied Motor 

Vehicle. The State alleges in substance that:

On or about February 5, 2015, in Douglas County, Nebraska, Daniel J. Campbell 

did then and there being a person, within the territorial boundaries of any city of the first 

class or county containing a city of the metropolitan class or primary class, unlawfully, 

knowingly, and intentionally discharged a firearm, while in any motor vehicle at or in the 

general direction of any person or occupied motor vehicle.

Instruction No. 5 reads, in pertinent part:

The material elements which the State must prove by evidence beyond a reasonable 

doubt in order to convict the Defendant of the crime of Discharging a Firearm While in or 

in Proximity of any Motor Vehicle at any Person or Occupied Motor Vehicle, as charged 

in Count 6 of the Amended Information are:

1. That on or about February 5, 2015, in Douglas County, Nebraska, the Defendant 

Daniel J. Campbell, did then and there being a person, within the territorial boundaries of 

any city of the first class or county containing a city of the metropolitan class, unlawfully, 

knowingly, and intentionally discharge a firearm, while in any motor vehicle or in the 

proximity of any motor vehicle that such person has just exited, at or in the general 

direction of any person or occupied motor vehicle as defined in section 71-4603.

2. That the Defendant did so intentionally.
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Campbell argues that both instruction No. 2 and instruction No. 5 are incomplete statements of the 

relevant statute, Neb. Rev. Stat. § 28-1212.04 (Reissue 2016), as both omit the term “recklessly”

from their language. Section 28-1212.04 reads as follows:

Any person, within the territorial boundaries of any city of the first class or county 

containing a city of the metropolitan class or primary class, who unlawfully, knowingly, 

and intentionally or recklessly discharges a firearm, while in any motor vehicle or in the 

proximity of any motor vehicle that such person has just exited, at or in the general 

direction of any person, dwelling, building, structure, occupied motor vehicle, occupied 

aircraft, inhabited motor home as defined in section 71-4603, or inhabited camper unit as 

defined in section 60-1801, is guilty of a Class IC felony.

Campbell asserts that the omission of the term “recklessly” from both jury instructions had the 

effect of removing an essential issue or element of the case from the jury and resulted in confusion 

to the jury and an incorrect verdict. We disagree.

The mens rea component of § 28-1212.04 requires that the State prove a defendant act 

“unlawfully, knowingly, and intentionally or recklessly . . .” (emphasis supplied). Therefore, the 

State must only prove beyond a reasonable doubt that the defendant act intentionally or recklessly, 

not both. It is clear from instruction No. 5, part 2, and the evidence adduced at trial, that the State 

was attempting to prove Campbell intentionally committed the crime. Proving intent is a higher 

burden than proving recklessness, and there was nothing misleading to the jury about omitting the 

word “recklessly” from the jury instructions. Because the jury found that the State proved 

Campbell acted intentionally beyond a reasonable doubt, and we affirmed the sufficiency of the 

evidence on direct appeal, Campbell’s claim is refuted by the record and without merit. The district 

court, therefore, was not required to hold an evidentiary hearing.

VI. CONCLUSION

For the foregoing reasons, we affirm the order of the district court denying Campbell’s 

motion for postconviction relief without an evidentiary hearing.

AFFIRMED.