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306 Nebraska Reports

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Cite as 306 Neb. 38

State of Nebraska, appellee, v. 

James S. Price, appellant.

___ N.W.2d ___

Filed June 5, 2020. No. S-19-192.

1. Effectiveness of Counsel: Appeal and Error. Assignments of error 

on direct appeal regarding ineffective assistance of trial counsel must 

specifically allege deficient performance, and an appellate court will 

not scour the remainder of the brief in search of such specificity.

2. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant 

has not preserved a claim of prosecutorial misconduct for direct appeal, 

an appellate court will review the record only for plain error.

3. Appeal and Error. An appellate court may find plain error on appeal 

when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right 

and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. Generally, an appellate court 

will find plain error only when a miscarriage of justice would otherwise occur.

4. Motions for New Trial: Appeal and Error. The standard of review for 

the denial of a motion for new trial is whether the trial court abused its 

discretion in denying the motion.

5. Convictions: Evidence: Appeal and Error. Regardless of whether 

the evidence is direct, circumstantial, or a combination thereof, and 

regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie 

case, the standard is the same: In reviewing 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.

Nebraska Supreme Court Online Library

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

08/28/2020 01:08 AM CDT
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6. 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.

7. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

8. Appeal and Error. Under the law-of-the-case doctrine, the holdings of 

an appellate court on questions presented to it in reviewing proceedings 

of the trial court become the law of the case; those holdings conclusively settle, for purposes of that litigation, all matters ruled upon, either 

expressly or by necessary implication.

9. Actions: Appeal and Error. The law-of-the-case doctrine operates 

to preclude a reconsideration of substantially similar, if not identical, 

issues at successive stages of the same suit or prosecution.

10. ____: ____. On appeal, the law-of-the-case doctrine is a rule of practice that operates to direct an appellate court’s discretion, not to limit 

its power.

11. ____: ____. The law-of-the-case doctrine does not apply if considerations of substantial justice suggest a reexamination of the issue is warranted. But matters previously addressed in an appellate court are not 

reconsidered unless the petitioner presents materially and substantially 

different facts.

12. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and 

Error. A party who fails to make a timely motion for mistrial based 

on prosecutorial misconduct waives the right to assert on appeal that 

the court erred in not declaring a mistrial due to such prosecutorial 

misconduct.

13. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial misconduct encompasses conduct that violates legal or ethical standards 

for various contexts because the conduct will or may undermine a 

defendant’s right to a fair trial.

14. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the 

duty to conduct criminal trials in such a manner that the accused may 

have a fair and impartial trial, and prosecutors are not to inflame the 

prejudices or excite the passions of the jury against the accused.

15. ____: ____: ____. A prosecutor’s conduct that does not mislead and 

unduly influence the jury does not constitute misconduct.

16. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial 

misconduct in closing arguments, a court first determines whether the 

prosecutor’s remarks were improper. It is then necessary to determine 

the extent to which the improper remarks had a prejudicial effect on the 

defendant’s right to a fair trial.
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17. Criminal Law: Evidence: Appeal and Error. When a criminal defendant challenges the sufficiency of the evidence upon which a conviction 

is based, the relevant question for an appellate court is whether, after 

viewing the evidence in the light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.

18. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal 

principles in determining the sentence to be imposed.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affirmed.

Matthew K. Kosmicki for appellant.

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

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

James S. Price appeals his convictions and sentences in the 

district court for Lancaster County for aiding and abetting robbery and for aiding and abetting first degree assault. Price was 

convicted in his second jury trial after his first trial ended in a 

deadlocked jury and the court declared a mistrial.

Price claims on appeal that the court erred in the first trial 

when it failed to inquire of the jury whether it was deadlocked 

on each count and when it overruled the plea in bar he filed 

after the declaration of a mistrial and before the second trial. 

We note with regard to these two claims that Price unsuccessfully appealed to the Nebraska Court of Appeals, which 

rejected his assignments of error regarding polling of jurors 

and overruling the plea in bar. State v. Price, No. A-17-565, 

2018 WL 718501 (Neb. App. Feb. 6, 2018) (petition for further 

review denied).
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Price further claims on appeal that in the second trial, (1) the 

State committed prosecutorial misconduct by making improper 

statements during closing argument, (2) the court abused its 

discretion when it denied his motion for a new trial, (3) counsel was ineffective, (4) there was not sufficient evidence to 

support his convictions, and (5) the court imposed excessive 

sentences. We affirm Price’s convictions and sentences.

STATEMENT OF FACTS

First Trial, Declaration of 

Mistrial, and Plea in Bar.

Price was charged with aiding and abetting robbery and 

aiding and abetting first degree assault based on an incident 

that occurred in the early hours of October 3, 2014, in which 

two men were robbed and assaulted by two other men. Price 

was first tried on the charges in December 2016. The case was 

submitted to the jury at around 11 a.m. on December 9, and 

deliberations continued on December 12. The following facts 

come from the Court of Appeals’ memorandum opinion in an 

earlier appeal in this case:

[T]he jury, during its deliberations, sent a note to the 

judge on December 12, 2016, stating, “We are having difficulty with a unanimous decision. What else can we do?” 

The judge conferred with counsel for both sides, and upon 

agreement of the parties, an instruction was given to the 

jury urging them to review the court’s prior instructions, 

reconsider the evidence, and to continue their discussions 

in order to reach a verdict; but to let the court know if a 

unanimous decision ultimately could not be reached.

After the jury continued to deliberate for approximately another couple of hours, it sent another note to the 

court stating, “We have reviewed the judge’s instructions 

numerous times. We have carefully reviewed the evidence 

multiple times. We have taken multiple votes and are still 

deadlocked.” The following line of questioning then took 

place in open court between the court, the presiding juror, 

and both attorneys (with Price present):
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Cite as 306 Neb. 38

“THE COURT: [Presiding juror], do you think any 

further deliberations would result in a verdict in this case?

“PRESIDING JUROR: It doesn’t appear so.

“THE COURT: Okay. Well, let me ask you this. Do 

you think the jury is hopelessly deadlocked?

“PRESIDING JUROR: Yes. I —

“THE COURT: I’m sorry?

“PRESIDING JUROR: Yeah. I — yeah.

“THE COURT: Okay. All right.

“Any comments, [counsel for the State]?

“[Counsel for the State]: No.

“THE COURT: Any comments, [counsel for Price]?

“[Counsel for Price]: Would the Court entertain polling 

the jury panel as to that issue?

“THE COURT: I’m not going to poll the jury as to that 

issue. I think if the foreperson says they are deadlocked, I 

will take his word for it.”

Price’s counsel then objected to a mistrial in a side-bar 

with the court and counsel for the State, and asked for 

another instruction to the jury to keep deliberating. The 

court overruled the objection and declared a mistrial, noting the jury had been deliberating for over 8 hours. The 

court indicated the case would be set for further proceedings and trial would be scheduled in the next trial term 

commencing in February 2017.

Price filed a plea in bar on January 23, 2017, asserting that “[t]rying [Price] a second time would violate 

the right to be free from Double Jeopardy, Due Process, 

and to a Fair Trial, all as secured by the United States 

and Nebraska constitutions.” The district court entered 

an order on May 18, finding that “the jury’s statement 

that it was unable to reach a verdict amounts to ‘manifest necessity’ and [Price’s] Plea In Bar is, therefore, 

overruled.”

State v. Price, No. A-17-565, 2018 WL 718501 at *1 (Neb. 

App. Feb. 6, 2018).
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Cite as 306 Neb. 38

Price’s Appeal of Denial 

of Plea in Bar.

Price appealed the district court’s denial of his plea in bar 

to the Court of Appeals. He claimed that the court erred when 

it (1) refused his request to poll the jury individually when it 

indicated it was deadlocked and (2) overruled his plea in bar. 

The Court of Appeals rejected both assignments of error and 

affirmed the district court’s order overruling Price’s plea in bar. 

State v. Price, supra.

Regarding Price’s claim that the court erred when it denied 

his request to poll the jury, the Court of Appeals determined 

that it lacked jurisdiction to consider an error arising from 

Price’s trial because there had not yet been a final order or 

judgment in the trial and the only final, appealable order it had 

jurisdiction to review was the order overruling Price’s plea in 

bar. The Court of Appeals determined, however, that the jury 

polling issue could be addressed in the context of the denial of 

Price’s plea in bar.

Regarding the denial of the plea in bar, the Court of Appeals 

cited the proposition that where a mistrial is declared over 

a defendant’s objection, he or she may be retried only if the 

prosecution can demonstrate a manifest necessity for the mistrial. Therefore, a second trial was allowed and the plea in bar 

was properly denied if there was a manifest necessity for the 

mistrial. The Court of Appeals rejected Price’s arguments that 

the trial court had abused its discretion when it granted the 

mistrial, and it agreed with the district court’s determination 

that the jury’s statement that it was unable to reach a verdict 

amounted to a manifest necessity.

As part of this analysis, the Court of Appeals considered 

Price’s argument that he was entitled to poll the jury individually regarding whether the jury was deadlocked rather 

than relying on the assertion of the presiding juror. The 

Court of Appeals stated that the statutory right to poll jurors 

under Neb. Rev. Stat. § 29-2024 (Reissue 2016) was limited to polling jurors regarding a verdict reached by the jury 
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and did not apply when a verdict had not been reached. The 

Court of Appeals also distinguished State v. Combs, 297 

Neb. 422, 900 N.W.2d 473 (2017), in which the defendant 

learned after a mistrial was declared that the jury had voted 

to acquit him on three of four charges but had reported that 

it was deadlocked because it thought it had to be unanimous 

as to all four counts. We concluded in Combs that because 

the defendant had sought the mistrial, he could not challenge the district court’s failure to inquire whether the jury 

was deadlocked as to all counts; however, we stated that “the 

better practice would have been for the district court to have 

inquired of the jury whether it was deadlocked on every count 

before it granted a mistrial.” 297 Neb. at 430, 900 N.W.2d 

at 481.

The Court of Appeals in this case determined that Combs

did not create a new right to poll the jury individually before 

declaring a mistrial. The Court of Appeals also noted that 

there were “no facts in the record that call into question the 

jury being deadlocked as to all counts in the present case, 

as was the case in Combs.” State v. Price, No. A-17-565, 

2018 WL 718501 at *5 (Neb. App. Feb. 6, 2018). The Court 

of Appeals further noted that when Price requested to poll 

the jury, he did not raise an issue of whether the jury might 

be deadlocked as to only one of the two counts, but instead 

focused on polling jurors as to whether the jury was actually 

deadlocked. The Court of Appeals concluded that “while it 

would have been helpful and perhaps the ‘better practice’ to 

poll the jurors, it was not an abuse of discretion for the district court to rely on the presiding juror’s representation to the 

court that the jury was deadlocked and to decline individual 

polling of the jurors.” Id. The Court of Appeals concluded that 

because the district court did not abuse its discretion when 

it declared a mistrial, it also did not err when it overruled 

Price’s plea in bar.

We denied Price’s petition for further review of the Court of 

Appeals’ decision.
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Second Trial.

After the Court of Appeals affirmed the denial of the plea 

in bar, the district court held a second trial, in June 2018. The 

evidence presented by the State included the following:

Patrick Pantoja testified that at around 2:45 a.m. on October 

3, 2014, he and a friend, Emmanuel Nartey, were walking 

north on 14th Street toward downtown Lincoln. As they passed 

by the Nebraska State Capitol Building, walking toward K 

Street, a group of three men approached and asked them if 

they had money. Pantoja said they did not, and he and Nartey 

continued walking north. Seconds later, Pantoja felt a hit to the 

back of his head; his memories after that became spotty, and 

his next clear memory was waking in a hospital room. Pantoja 

was able to describe the three men in general terms of race 

and clothing, but at trial, he did not identify Price or any other 

person as an assailant. Pantoja further testified regarding items 

of value that he had on his person immediately prior to the 

incident and that he did not have afterward.

Pantoja testified regarding the injuries he received and the 

effects of such injuries. The doctor who treated Pantoja also 

testified at trial and stated that when Pantoja arrived at the hospital, he was in a coma and required both a breathing tube and 

a feeding tube. Pantoja was diagnosed with severe traumatic 

brain injury; the doctor testified that such injury was consistent with being repeatedly punched and kicked in the head and 

that without medical intervention, his injuries could have been 

life threatening.

Nartey also testified, and he was able to provide more 

details regarding the incident. When the three men initially 

approached Nartey and Pantoja, one of the men told them to 

empty their pockets. Nartey and Pantoja ignored the men and 

continued walking; one of the men then hit Pantoja “from the 

back.” At trial, Nartey described the three men as “[o]ne black 

guy and two white guys.” He further described one of the 

“white guys” as having a “bald head” and wearing a “white 

shirt . . . with black markings on the shirt,” and he testified 
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Cite as 306 Neb. 38

that this man was the man who first hit Pantoja. Nartey testified that after the man first hit Pantoja, the second white man 

asked, “What are you guys doing?” and suggested they leave. 

The second white man either left or was otherwise not involved 

in what occurred after the first hit.

Pantoja fell to the ground after being hit the first time. When 

Nartey “went in to separate” the white man from Pantoja, 

“the black guy came on to [Nartey] to push [him] away.” 

Pantoja had stood up, and so both the white man and the black 

man “went onto him to just hit him back to the ground . . . 

just punching him.” When Nartey “went in again to separate 

them,” the black man hit Nartey in the face and tried to empty 

Nartey’s pocket. Nartey decided to run, and when he ran, both 

men stopped hitting Pantoja and chased after Nartey.

After Nartey got about a block away, he turned around and 

saw the two men had stopped chasing him. Nartey stopped and 

watched as the two men walked back toward Pantoja, who had 

stood up again; the two men knocked Pantoja to the ground 

again, and they “started kicking him in the face, in the head, 

anywhere”, and Nartey “saw them empty [Pantoja’s] pocket.” 

“[A]fter hitting [Pantoja] for several times, [the two men] just 

left.” After the two men left, Nartey ran to Pantoja and saw that 

“he had blood all over his face.” Nartey also saw that Pantoja’s 

“pocket was empty” and had apparently been searched. He also 

saw certain of Pantoja’s belongings, including a wallet and 

credit cards, “scattered around his body.” Nartey looked for 

and found his cell phone, which he had dropped while running 

from the men. As he called for emergency assistance, an officer 

in a police car arrived.

The State asked Nartey at trial whether he saw “the white 

guy in court that [he] saw kicking and punching [Pantoja],” 

and Nartey identified Price. The State asked Nartey about his 

testimony that the “white guy . . . had a bald head.” Nartey 

testified that Price had “very short hair at the time,” but Nartey 

noted that at the time of the trial, Price’s hair had grown and 

was “longer now than it was then.”
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On cross-examination, Price asked Nartey about his testimony in this case and his statements prior to trial describing 

the white man who hit Pantoja as being “bald” or having “no 

hair whatsoever.” Price also cross-examined Nartey with a 

deposition in which Nartey described the man as wearing a 

“white shirt” but did not describe the shirt as having black 

lettering. Price also asked Nartey about being shown “six photographs of the white suspects” and whether he would agree 

that he was “unable to identify any one in that photo lineup 

. . . as being the white man who assaulted . . . Pantoja.” The 

court sustained the State’s hearsay objection before Nartey 

could answer.

Jerad McBride testified that he was the police officer who 

stopped upon seeing Pantoja on the ground with Nartey standing next to him, trying to wave McBride down. McBride 

observed that Pantoja was unconscious and “gasping for air” 

and had sustained injuries to his face and trauma to his 

head. McBride testified that Nartey described to him what 

had occurred when Nartey and Pantoja were approached by 

the three men. McBride asked Nartey for descriptions of the 

men; McBride testified that Nartey described the white man as 

having “a slim build with like a shaved head, short hair” and 

wearing “a white shirt.” A patrol officer who had arrived on the 

scene drove around the nearby area looking for men matching 

the description given by Nartey but did not find anyone.

As part of their investigation of this case, McBride and other 

officers requested video surveillance from security employees 

at the Nebraska State Capitol, who provided video that they 

thought might be relevant. McBride watched one surveillance 

video that was taken at around 2:44 a.m. on October 3, 2014, 

and depicted a portion of the Governor’s residence located near 

the Capitol building. McBride was attempting to determine 

whether persons depicted in the video matched the descriptions 

given of the suspects in this case. McBride asked another officer, Andrew Vocasek, to watch the video because he had been 

in the area on the night of the incident.
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Vocasek testified at trial that in the early hours of October 

3, 2014, he was working foot patrol in the area of 14th and O 

Streets in downtown Lincoln. Vocasek remembered talking to 

Price “sometime before 2 a.m.” on October 3. Vocasek knew 

Price from “see[ing] him around” and “chatting” with him on 

several prior occasions. Vocasek testified that he had a “casual 

conversation” with Price and that Price “was with another gentleman” at the time. Vocasek testified that when he watched the 

surveillance video, he recognized one of the persons depicted in 

the video, and that the appearance of the person was consistent 

with how Price looked when Vocasek had seen him earlier.

Price thereafter became a suspect in the investigation, and 

police obtained a warrant to search the apartment in which 

Price lived with two other men, one of whom was Stelson 

Curry, who is a black male. In a search conducted on October 

30, 2014, police found, inter alia, several items of clothing 

that matched the clothing worn by the two persons shown in 

the surveillance video. Certain of the pieces of clothing were 

found in a room that was identified as being Price’s bedroom. 

An officer interviewed Price at the police station while the 

search warrant was being executed. Price denied taking part 

in the assault and initially stated that he likely had not left his 

apartment that night. After being shown still photographs from 

the surveillance video recorded around the time and location of 

the assault, Price stated that he may have gone out to one of 

two locations that night, but neither location was near where 

the surveillance camera was located.

Another investigator testified that she listened to the recording of a call that Curry placed to Price from jail on October 

31, 2014, the day after the search. The call occurred after the 

interview of Price described above and at a time when Price 

had been released but Curry was in jail. In the conversation, 

Price listed for Curry the items that had been seized in the 

search of the apartment. In this call, Price identified some 

of the items of clothing as belonging to Curry and some as 

belonging to himself.
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Police later submitted items found in the search for forensic testing. The testing showed that Pantoja’s blood was on a 

pair of shoes that had been identified as belonging to Curry. 

Thereafter, in February 2015, Curry was arrested in this case.

Price was again interviewed by a police officer in April 

2015. Price still denied being involved in the assault; he 

no longer stated that he might have gone to one of the two 

locations he mentioned in the earlier interview, and instead, 

he said that he might have walked around with Curry smoking a marijuana cigarette. Price was arrested in this case in 

July 2015.

At the close of the State’s case, Price moved for a directed 

verdict and the court overruled the motion. Price chose not to 

testify, and he presented no other evidence in his defense. After 

resting his defense, Price renewed his motion for a directed 

verdict and the court again overruled the motion.

Price’s counsel made no objections during the State’s closing argument. The jury thereafter returned verdicts finding 

Price guilty on both counts. Prior to sentencing, at Price’s 

request, the court discharged his counsel and appointed new 

counsel to represent Price. The court overruled Price’s motion 

for new trial. The court thereafter sentenced Price to concurrent terms of imprisonment for 25 to 40 years on the two 

convictions.

Price appeals his convictions and sentences.

ASSIGNMENTS OF ERROR

Price first makes two claims related to the first trial and the 

plea in bar: (1) that the court erred when it failed to inquire 

of the jury whether it was deadlocked on each count before it 

declared a mistrial and (2) that the court abused its discretion 

when it overruled his plea in bar.

With regard to the second trial, Price claims that (1) the 

State committed prosecutorial misconduct by making various 

improper statements during closing argument, (2) the court 

abused its discretion when it overruled his motion for a new 
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trial, (3) the evidence was insufficient to support his convictions, and (4) the court imposed excessive sentences.

Price also set forth an assignment of error reading as follows: “[Price’s] Counsel was ineffective and thus his constitutional right to the effective assistance of counsel as guaranteed 

by the Sixth and Fourteenth Amendments to the United States 

Constitution and the respective guarantees in Article I § II of 

the Nebraska Constitution were violated.” In his assignment 

of error, Price did not specify how counsel’s performance was 

alleged to be deficient.

[1] As we declared in State v. Mrza, 302 Neb. 931, 926 

N.W.2d 79 (2019), assignments of error on direct appeal 

regarding ineffective assistance of trial counsel must specifically allege deficient performance, and an appellate court will 

not scour the remainder of the brief in search of such specificity. Recently, in State v. Guzman, ante p. 376, 940 N.W.2d 

552 (2020), we noted that the requirement had been repeated 

in subsequently published decisions and noted that the defendant’s brief in Guzman had been filed 3 months after our 

April 19, 2019, pronouncement in Mrza but failed to comply 

with the requirement. We rejected the defendant’s argument in 

Guzman that he met the requirement because his assignment of 

error informed us that the particular allegations of ineffective 

assistance would be set forth elsewhere in the brief with more 

particularity and because in the heading of his argument on the 

issue, he identified particular deficiencies in all bold and capital letters. We declined to excuse counsel’s failure to comply 

with the pronouncement in Mrza, noting that his brief was filed 

3 months after the pronouncement in Mrza.

Price’s brief in the present case was filed on August 22, 

2019, 4 months after our pronouncement in Mrza. The State in 

its brief noted the failure of Price’s assignment of error to comply with Mrza. In his reply brief, Price argues, similarly to the 

appellant in Guzman, that his “claims of ineffective assistance 

of counsel were properly presented” because such claims were 

“separately numbered and specifically discussed in detail” in 
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the argument section of his brief. Reply brief for appellant at 

2, 3. However, because in Guzman, we did not afford judicial 

grace to a brief filed 3 months after Mrza, a fortiori, such grace 

will not be afforded a brief filed 4 months after Mrza. We 

therefore do not consider Price’s assignment of error alleging 

ineffective assistance of counsel.

STANDARDS OF REVIEW

[2,3] When a defendant has not preserved a claim of prosecutorial misconduct for direct appeal, we will review the record 

only for plain error. State v. Mrza, 302 Neb. 931, 926 N.W.2d 

79 (2019). An appellate court may find plain error on appeal 

when an error unasserted or uncomplained of at trial, but 

plainly evident from the record, prejudicially affects a litigant’s 

substantial right and, if uncorrected, would result in damage to 

the integrity, reputation, and fairness of the judicial process. Id. 

Generally, we will find plain error only when a miscarriage of 

justice would otherwise occur. Id.

[4] The standard of review for the denial of a motion for 

new trial is whether the trial court abused its discretion in 

denying the motion. State v. Krannawitter, ante p. 66, 939 

N.W.2d 335 (2020).

[5] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the 

issue is labeled as a failure to direct a verdict, insufficiency of 

the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing 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. Case, 304 Neb. 829, 

937 N.W.2d 216 (2020).

[6,7] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 
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trial court. State v. Becker, 304 Neb. 693, 936 N.W.2d 505 

(2019). An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, 

and evidence. Id.

ANALYSIS

Assignments Related to First 

Trial and Plea in Bar.

Price’s first two assignments of error relate to the district 

court’s declaration of a mistrial in the first trial and its overruling of his plea in bar prior to the second trial. We determine 

that the Court of Appeals’ decision in Price’s appeal from the 

overruling of the plea in bar establishes the law of the case 

on both topics, and we therefore reject these two assignments 

of error.

[8,9] Under the law-of-the-case doctrine, the holdings of an 

appellate court on questions presented to it in reviewing proceedings of the trial court become the law of the case; those 

holdings conclusively settle, for purposes of that litigation, all 

matters ruled upon, either expressly or by necessary implication. State v. Lavalleur, 298 Neb. 237, 903 N.W.2d 464 (2017). 

The law-of-the-case doctrine operates to preclude a reconsideration of substantially similar, if not identical, issues at successive stages of the same suit or prosecution. Id.

[10,11] On appeal, the law-of-the-case doctrine is a rule 

of practice that operates to direct an appellate court’s discretion, not to limit its power. State v. Merchant, 288 Neb. 439, 

848 N.W.2d 630 (2014). We have recognized that the doctrine 

does not apply if considerations of substantial justice suggest 

a reexamination of the issue is warranted. Id. But matters previously addressed in an appellate court are not reconsidered 

unless the petitioner presents materially and substantially different facts. State v. Lavalleur, supra.

In the present case, Price had the opportunity and the incentive to raise matters regarding the plea in bar and the court’s 
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treatment of the deadlocked jury in the context of his appeal 

to the Court of Appeals from the denial of his plea in bar. 

Such matters were considered in that appeal, and the Court 

of Appeals’ rulings on the issues resulted in affirmance of the 

denial of Price’s plea in bar. We denied further review of the 

Court of Appeals’ rulings, and therefore, such rulings establish 

the law of the case.

Although it determined that it did not directly have jurisdiction to consider orders other than the order which denied the 

plea in bar, the Court of Appeals nevertheless was obligated 

to consider Price’s challenge regarding mistrial in the context 

of the plea in bar. And without further review, the Court of 

Appeals’ assessments with regard to the grant of mistrial established the law of the case.

Price’s claim in this appeal differs from his claim in the 

first appeal, wherein he asserted that it was error not to poll 

the jury. Here, he focuses on inquiring of the jurors whether 

they were deadlocked as to just one or both counts. As noted 

in the facts section above, in the earlier appeal, the Court of 

Appeals acknowledged and rejected Price’s arguments based 

on his reading of State v. Combs, 297 Neb. 422, 900 N.W.2d 

473 (2017). Instead, the Court of Appeals emphasized our 

statement in Combs that, although not required, it was “the better practice [to inquire] of the jury [and in doing so] whether 

it was deadlocked on every count before it granted a mistrial.” 

297 Neb. at 430, 900 N.W.2d at 481. Thus, as the Court of 

Appeals noted, there was no abuse when the district court did 

not poll the jury in the first trial. The force of that reasoning 

continues to be the law of the case, and we do not think that 

in the current appeal, Price has presented materially and substantially different facts that would prompt us to reconsider 

those rulings. For example, Price has not, as did the defendant 

in Combs, shown evidence that jurors in his case were in fact 

not deadlocked on both counts or thought they had to be unanimous as to both counts.
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We therefore conclude that as to Price’s first two claims, the 

decision of the Court of Appeals affirming the denial of the 

plea in bar establishes the law of the case, and that although 

they are recast, we will not reconsider those rulings in this 

appeal. We reject both assignments of error.

Prosecutor’s Comments During 

Closing Argument.

[12] Price next claims that the State committed prosecutorial misconduct based on various allegedly improper comments 

made during closing argument. Price acknowledges that he did 

not object to those statements at the time they were made and 

that he did not move for a mistrial based on the statements. A 

party who fails to make a timely motion for mistrial based on 

prosecutorial misconduct waives the right to assert on appeal 

that the court erred in not declaring a mistrial due to such 

prosecutorial misconduct. State v. Mrza, 302 Neb. 931, 926 

N.W.2d 79 (2019). Because Price did not move for a mistrial, 

the alleged error was waived, and accordingly, our review of 

the issue is confined to a search for plain error. See id.

[13-16] Prosecutorial misconduct encompasses conduct that 

violates legal or ethical standards for various contexts because 

the conduct will or may undermine a defendant’s right to a 

fair trial. Id. Prosecutors are charged with the duty to conduct 

criminal trials in such a manner that the accused may have 

a fair and impartial trial, and prosecutors are not to inflame 

the prejudices or excite the passions of the jury against the 

accused. Id. A prosecutor’s conduct that does not mislead and 

unduly influence the jury does not constitute misconduct. Id. 

In assessing allegations of prosecutorial misconduct in closing 

arguments, a court first determines whether the prosecutor’s 

remarks were improper. It is then necessary to determine the 

extent to which the improper remarks had a prejudicial effect 

on the defendant’s right to a fair trial. Id.

Price sets forth 35 remarks made by the prosecutor during 

closing arguments that he asserts were improper. He generally 
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groups the remarks into five categories, including remarks that 

he alleges (1) state the personal belief or opinion of the prosecutor regarding the credibility of testimony or the strength 

of the evidence; (2) label Price as a liar or imply that inconsistencies in his statements are evidence of guilt; (3) inflame 

prejudices or excite passions of the jury; (4) misstate evidence, 

refer to matters not in evidence, suggest improper influences, 

or invite speculation; or (5) refer to other acts or wrongs that 

are not in evidence and would not have been allowed into 

evidence. We have reviewed each of the instances and find no 

plain error.

Much of Price’s argument focuses on the prosecutor’s comments on the evidence, the strength of evidence, and the credibility of testimony. While we have recognized that a prosecutor should not express his or her personal belief or opinion as 

to the truth or falsity of any testimony or evidence or the guilt 

of the defendant, we have further stated:

[W]hen a prosecutor’s comments rest on reasonably 

drawn inferences from the evidence, the prosecutor is 

permitted to present a spirited summation that a defense 

theory is illogical or unsupported by the evidence and to 

highlight the relative believability of witnesses for the 

State and the defense. Thus, in cases where the prosecutor 

comments on the theory of defense, the defendant’s veracity, or the defendant’s guilt, the prosecutor crosses the 

line into misconduct only if the prosecutor’s comments 

are expressions of the prosecutor’s personal beliefs rather 

than a summation of the evidence.

State v. Gonzales, 294 Neb. 627, 645-46, 884 N.W.2d 102, 117 

(2016). We reasoned in Gonzales that the danger of a prosecutor’s expressing a personal opinion is that the jurors may infer 

the prosecutor has access to information not in evidence and 

that with that inference and the imprimatur of the government, 

the jury might rest a decision on the government’s opinion 

rather than its own view of the evidence. In Gonzales, we 

rejected a rule that it is per se misconduct for the prosecutor to 
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state that the defendant lied or is a liar. Instead, we adopted an 

approach that

looks at the entire context of the language used to determine whether the prosecutor was expressing a personal 

opinion or merely submitting to the jury a conclusion that 

the prosecutor is arguing can be drawn from the evidence. 

If the prosecutor is commenting on the fact that the evidence supports the inference that the defendant lied, as 

opposed to a personal opinion carrying the imprimatur of 

the government, the comment is not misconduct. This is 

distinguishable from calling the defendant a “liar,” which 

is more likely to be perceived as a personal attack on the 

defendant’s character.

Id. at 647, 884 N.W.2d at 118.

Reviewing the State’s remarks in this case under that 

approach and considering them in context, we believe the 

remarks challenged by Price were inferences from the evidence 

rather than statements of the prosecutor’s personal opinion. 

Among his challenges, Price points to the instances where the 

prosecutor told the jurors to ask themselves “why is [Price] 

lying” and stated, “You know that is a lie.” However, when 

viewed in context, the remark arose where the prosecutor was 

discussing evidence from which it could be inferred that Price 

gave inconsistent statements and may have lied in order to 

cover his involvement. Other statements that Price characterizes as misstating the evidence or referring to matters not in 

evidence were instances of the prosecutor’s remarking on inferences that could be drawn from the evidence.

Price also asserts that the State referred to other wrongs or 

acts that were not in evidence and would not be allowed into 

evidence. These remarks were in the context of discussing 

the surveillance video and the prosecutor’s characterizing the 

movements and actions of Price and his companion as indicating that “they are going out to take stuff,” “checking cars,” 

“out to steal,” and “out to take things from other people.” Such 

remarks do not state that Price actually committed wrongs or 
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acts, other than those acts charged in this case, such as stealing from cars or from people other than Pantoja, and so are 

not improper references to other acts or crimes that were not 

and could not be in evidence. Instead, the prosecutor was commenting on what was depicted in the surveillance video and 

suggesting possible inferences the jury might make based on 

Price’s actions and movement depicted in the video.

We do not find the remarks challenged by Price to be 

improper, and we therefore do not find error, let alone plain 

error, when the court did not sua sponte declare a mistrial 

based on alleged prosecutorial misconduct. We reject this 

assignment of error.

Motion for New Trial.

Price next claims that the district court abused its discretion 

when it overruled his motion for new trial. We find no such 

abuse of discretion.

In his arguments in support of the motion for new trial, Price 

focused in large part on the alleged prosecutorial misconduct 

during closing argument. As we discussed above, we do not 

find such remarks to be improper, and as we did not find plain 

error in the failure to declare a mistrial based on such remarks, 

we also determine the court did not abuse its discretion when 

it denied a new trial based on the same remarks. See State v. 

Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018) (finding no 

plain error in prosecutor’s statement to which defendant did not 

object and consequently finding no error in overruling motion 

for new trial based on prosecutorial misconduct), disapproved 

on other grounds, State v. Avina-Murilla, 301 Neb. 185, 917 

N.W.2d 865 (2018).

A second reason Price urged for a new trial was that, as he 

asserts in his brief, a police officer testified regarding “how 

photo lineups are created with mugshots including a mugshot 

of [Price].” Brief for appellant at 44. Price appears to imply 

that because there was a “mugshot” of Price, he had committed other crimes. Id. However, the record shows that in 
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direct questioning by the State, the officer merely referred 

to the photographs as “still photos” or “local photos.” Price 

did not object to such testimony. Further information regarding the photographic lineup was adduced by Price on crossexamination when he asked a series of questions about how the 

lineup was created. In response, the officer referred to “book-in 

photos” and does not appear to have referred to “mugshots.” 

Whether such testimony was unresponsive or inadmissible, it 

was minor in the context of the entire trial and not unfairly 

prejudicial. The court did not abuse its discretion by determining it did not require a new trial.

Finally, Price argued for a new trial because he alleged 

there was insufficient evidence to support the convictions. As 

discussed below, we conclude there was sufficient evidence. 

We therefore conclude that the district court did not abuse its 

discretion when it overruled Price’s motion for a new trial. We 

reject this assignment of error.

Sufficiency of Evidence.

Price next claims that the evidence was not sufficient to 

support his convictions. We conclude that the evidence was 

sufficient.

[17] When a criminal defendant challenges the sufficiency 

of the evidence upon which a conviction is based, the relevant 

question for an appellate court is whether, after viewing the 

evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt. State v. Case, 304 Neb. 

829, 937 N.W.2d 216 (2020).

Price was charged with aiding and abetting a robbery and 

for aiding and abetting a first degree assault. Robbery is 

defined in Neb. Rev. Stat. § 28-324 (Reissue 2016) as being 

when, “with the intent to steal, [one] forcibly and by violence, 

or by putting in fear, takes from the person of another any 

money or personal property of any value whatever.” First 

degree assault is defined in Neb. Rev. Stat. § 28-308 (Reissue 
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2016) as when one “intentionally or knowingly causes serious 

bodily injury to another person.” The theory of aiding and 

abetting a criminal act is described in Neb. Rev. Stat. § 28-206 

(Reissue 2016) which provides that a “person who aids, abets, 

procures, or causes another to commit any offense may be 

prosecuted and punished as if he [or she] were the principal 

offender.” Our case law further defines “aiding and abetting” 

as follows:

[A]iding and abetting requires some participation in a 

criminal act which must be evidenced by word, act, or 

deed, and mere encouragement or assistance is sufficient 

to make one an aider or abettor. No particular acts are 

necessary, however, nor is it necessary that the defendant 

take physical part in the commission of the crime or that 

there was an express agreement to commit the crime. Yet, 

evidence of mere presence, acquiescence, or silence is 

not enough to sustain the State’s burden of proving guilt 

under an aiding and abetting theory.

State v. Stubbendieck, 302 Neb. 702, 716-17, 924 N.W.2d 711, 

723 (2019).

In this case, there was sufficient evidence, including the 

testimony of both Nartey and Pantoja, to establish that two 

men punched and kicked Pantoja to the extent of causing him 

serious bodily injury and that through the use of such violence, the men took property of value from Pantoja’s person. 

Nartey identified Price as one of the men who carried out the 

assault and robbery, and there was also circumstantial evidence 

including the surveillance video and the testimony of a police 

officer that placed Price in the vicinity of the incident around 

the time that the incident occurred. To the extent the evidence 

is not specific regarding which of the two men delivered the 

specific punches and kicks that caused Pantoja serious bodily 

injury or which of the two men took property of value from 

Pantoja’s person, the evidence was sufficient to show that if 

Price did not himself perform such acts, he aided and abetted the other man in doing so. See State v. Thomas, 210 Neb. 
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298, 314 N.W.2d 15 (1981) (in context of brawl, attributing 

particular injuries to particular actions was difficult, but as 

participant in conspiratorial effort to harm victim, defendant 

was liable for all victim’s injuries). The evidence in this case 

indicates that two men participated in the criminal acts and 

that Price’s participation went beyond mere presence, acquiescence, or silence.

Much of Price’s argument with regard to sufficiency of the 

evidence focuses on the credibility of Nartey’s identification 

of Price as one of the assailants. He argues that Nartey’s testimony was inconsistent and that Nartey’s description of the 

white man’s appearance and clothing differed from Price’s 

appearance and clothing at the time of the incident as shown 

in the surveillance video. For example, Nartey described the 

white male sometimes as being “bald” and other times as having “very short hair,” and Price asserts that the video shows 

that he “ha[d] hair” at the time, brief for appellant at 57. Price 

also argues that the clothing as shown in the video differs from 

Nartey’s description and that the video shows features such as 

tattoos, a watch, and earrings that Nartey did not include in his 

description of the assailant. Price argues that Nartey’s identification of Price was key to the case because there was no other 

evidence such as DNA, fingerprints, or other witness testimony 

to identify him as the assailant.

With respect to inconsistencies, we note that Price was 

able to call the jury’s attention to any alleged inconsistencies in Nartey’s testimony and the jury was able to watch 

the video to determine whether Price’s appearance and clothing on that night were consistent with Nartey’s description 

of the assailant; it was then the jury’s duty to determine the 

credibility of Nartey’s in-court identification of Price as the 

assailant. We do not pass on the credibility of witnesses on 

appeal, State v. Case, 304 Neb. 829, 937 N.W.2d 216 (2020), 

and Nartey’s identification of Price, if believed by the jury, 

along with the other evidence presented at trial, supports 

Price’s convictions.
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We conclude that there was sufficient evidence to support 

Price’s convictions for aiding and abetting robbery and aiding and abetting first degree assault. We therefore reject this 

assignment of error.

Excessive Sentences.

Price finally claims that the district court imposed excessive 

sentences. We conclude that the sentences were within statutory limits and that the court did not abuse its discretion when 

it imposed the sentences.

Section 28-206 provides that one who aids and abets a crime 

“may be . . . punished as if he [or she] were the principal 

offender.” Under §§ 28-324(2) and 28-308(2), respectively, 

robbery and first degree assault are both Class II felonies. 

Under Neb. Rev. Stat. § 28-105(1) (Reissue 2016), the sentence for a Class II felony is imprisonment for a minimum of 

1 year and a maximum of 50 years. The concurrent sentences 

of imprisonment for 25 to 40 years that the court imposed on 

Price were therefore within statutory limits.

[18] Where a sentence imposed within the statutory limits 

is alleged on appeal to be excessive, the appellate court must 

determine whether a sentencing court abused its discretion 

in considering and applying the relevant factors as well as 

any applicable legal principles in determining the sentence to 

be imposed. State v. Becker, 304 Neb. 693, 936 N.W.2d 505 

(2019). In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) 

age, (2) mentality, (3) education and experience, (4) social and 

cultural background, (5) past criminal record or record of lawabiding 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. Id. The appropriateness of a sentence is necessarily a subjective judgment and 

includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. Id.
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Price argues that the district court ignored or failed to give 

adequate consideration to mitigating factors, including trauma 

and abuse in his childhood and mental health issues that arose 

therefrom, the likelihood he would be responsive to probation 

supervision based on how he had conducted himself in custody 

during the pendency of this case, letters attesting to his character, and the effect of his potential imprisonment on his wife and 

young child. He also argues that the court did not adequately 

consider he had a lower level of culpability in the crime than 

Curry, who Price argues was the “main aggressor” and “caused 

the serious injuries to [Pantoja].” Brief for appellant at 61. 

Price asserts that Curry was given “exactly the same sentence” 

as Price despite Curry’s greater culpability and less-compelling 

mitigating factors. Id.

At sentencing, the court noted that it had reviewed the presentence report and heard argument by Price’s counsel, as well 

as Price’s own statement to the court. The presentence report 

and the statements at the sentencing hearing include the mitigating factors set forth above. The court stated that in determining Price’s sentence, it had regard for, inter alia, Price’s 

“history character and condition.” But the court also considered 

factors urged by the State, particularly noting the seriousness 

of the crime and the impact of the “severe injuries” to Pantoja 

on his life, his future, and his family and friends. There is nothing to indicate that the court considered inappropriate factors 

or that it ignored mitigating factors. We cannot say that the 

sentences were an abuse of discretion. We reject this assignment of error.

CONCLUSION

Having determined that Price’s assignments of error are 

either without merit or cannot be considered in this appeal, we 

therefore affirm Price’s convictions and sentences.

Affirmed.