Decisions of the Nebraska Court of Appe

STATE v. RUEGGE 249

Cite as 21 Neb. App. 249

We determined above that Melanie had a legitimate reason 

to leave the State of Nebraska and provided sufficient evidence 

that removal was in Kendra’s best interests. Therefore, we 

reverse the trial court’s custody determination and reinstate the 

custody determination set forth in the decree.

VI. CONCLUSION

We conclude the district court abused its discretion in determining that Melanie’s acceptance of a job in New Mexico did 

not constitute a legitimate reason to leave the state. Upon our 

de novo review and after consideration of various relevant factors, we find that removing Kendra to New Mexico is in her 

best interests. Accordingly, we reverse the court’s order denying Melanie’s complaint to modify and the court’s modification of custody. We order legal custody of Kendra to be held 

jointly by the parties and order physical custody be restored to 

Melanie. We remand for further proceedings consistent with 

our opinion.

 Reversed and remand

further proceedings

State of Nebraska, appellee, v

Larry Lee Ruegge, appella

___ N.W.2d ___

Filed September 10, 2013. No. A-12-550.

1. 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.

2. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial 

depends largely on the facts of each case.

3. Motions for New Trial: Prosecuting Attorneys: Appeal and Error. An appellate court reviews a motion for new trial on the basis of prosecutorial misconduct 

for an abuse of discretion by the trial court.
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250 21 NEBRASKA APPELLATE REPORTS

4. Attorneys at Law: Motions for Mistrial: Verdicts: Appeal and Error. A 

party may not raise alleged misconduct of adverse counsel on appeal where, 

despite knowledge of the alleged misconduct, the party claiming the misconduct 

failed to request a mistrial and instead agreed to take his or her chance on a 

favorable verdict.

5. Trial: Appeal and Error. On appeal, a defendant may not assert a different 

ground for an objection than was offered to the trier of fact.

6. Trial: Attorneys at Law. One is allowed considerable latitude in making an 

opening statement.

7. Trial: Appeal and Error. An objection to the prosecutor’s argument made after 

the jury has been instructed and has retired is untimely and for that reason will 

not be reviewed on appeal.

8. Records: Appeal and Error. It is incumbent upon an appellant to present a 

record which supports the errors assigned.

9. Jury Instructions: Appeal and Error. Whether jury instructions are correct is 

a question of law, which an appellate court resolves independently of the lower 

court’s decision.

10. 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.

11. Theft: Words and Phrases. The term “knowing,” as used in Neb. Rev. Stat. 

§ 28-517 (Reissue 2008), imposes a subjective standard of knowledge.

12. Effectiveness of Counsel: Proof. 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 counsel’s performance was deficient and that this deficient performance actually prejudiced his or her defense.

13. ____: ____. The two-prong ineffective assistance of counsel test need not be 

addressed in order.

14. Effectiveness of Counsel: Presumptions. When considering whether trial counsel’s performance was deficient, there is a strong presumption that counsel acted 

reasonably.

15. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. Trial 

counsel is afforded due deference to formulate trial strategy and tactics. When 

reviewing a claim of ineffective assistance of counsel, an appellate court will not 

second-guess reasonable strategic decisions by counsel.

16. Effectiveness of Counsel: Appeal and Error. A claim of ineffective assistance 

of counsel need not be dismissed merely because it is made on direct appeal.

17. Trial: Prosecuting Attorneys. Generally, 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.

18. Motions for Mistrial. A mistrial is appropriate when an event occurs during the 

course of a trial which is of such a nature that its damaging effects would prevent 

a fair trial.
Decisions of the Nebraska Court of Appe

STATE v. RUEGGE 251

Cite as 21 Neb. App. 249

19. Trial: Attorneys at Law. The decision about whether to make an objection during a trial has long been considered an aspect of trial strategy.

20. ____: ____. A decision not to object could be explained by trial counsel’s calculated strategy not to highlight the objectionable material.

Appeal from the District Court for Holt County: Mark D.

Kozisek, Judge. Affirmed

Michael S. Borders, of Borders Law Office, for appellant.

Jon Bruning, Attorney General, and George R. Love for 

appellee.

Inbody, Chief Judge, and Irwin and Moore, Jud

Irwin, Judge

I. INTRODUCTION

Larry Lee Ruegge was convicted by a jury of theft by 

receiving stolen property. The district court subsequently found 

Ruegge to be a habitual offender and sentenced him to 10 

years’ imprisonment. Ruegge appeals from his conviction for 

theft by receiving stolen property. On appeal, Ruegge assigns 

numerous errors, including that there was insufficient evidence 

to support his conviction, that the State committed various 

instances of misconduct, and that the district court erred in 

failing to amend a certain jury instruction pursuant to Ruegge’s 

request. Ruegge also alleges that he received ineffective assistance of trial counsel.

Upon our review, we find no merit to Ruegge’s assertions 

on appeal. Accordingly, we affirm his conviction for theft by 

receiving stolen property.

II. BACKGROUND

The State filed a criminal complaint charging Ruegge with 

theft by receiving stolen property pursuant to Neb. Rev. Stat. 

§ 28-517 (Reissue 2008). Later, the State filed an amended 

complaint which charged Ruegge with being a habitual 

offender pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2008), 

in addition to the original charge of theft by receiving stolen 

property.

The theft by receiving stolen property charge stems from 

events which occurred in November and December 2010. 
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Evidence adduced at trial revealed that sometime during this 

time period, a flatbed trailer was stolen from Scribner Grain. 

Bolted to the flatbed trailer when it was stolen were various tools, including a generator/welder, an air compressor, a 

power washer, and some smaller hand tools. In the early part 

of December, an employee of Scribner Grain observed in the 

back of a pickup truck the generator/welder that had been stolen with the flatbed trailer. The employee followed the pickup 

truck to a local salvage yard, where it was discovered that the 

generator/welder was, in fact, the same generator/welder that 

had previously been stolen from Scribner Grain.

At trial, the State presented evidence to demonstrate that 

Ruegge had been in possession of the stolen generator/welder 

and had traded it, knowing that it was stolen, to the owner of 

the salvage yard, Richard Vande Mheen. Vande Mheen testified 

that on November 26, 2010, Ruegge came to Vande Mheen’s 

home with the generator/welder and proposed a trade. Ruegge 

gave Vande Mheen the generator/welder in exchange for a 

snowmobile. Vande Mheen testified that Ruegge told him that 

he had purchased the generator/welder “when he was repairing 

irrigation systems.”

When Vande Mheen was informed that the generator/welder 

had been stolen, he told police that he had gotten the tool from 

Ruegge. Vande Mheen then informed Ruegge that the police 

were asking about the generator/welder. Ruegge told Vande 

Mheen that if he did not tell police where he had gotten the 

tool, Ruegge would “make it worth [his] while.” Ruegge also 

told Vande Mheen that he should tell police that the tool had 

“come in in a load of iron.”

The State also presented evidence to demonstrate that the 

value of the generator/welder was approximately $2,500.

Ruegge’s defense focused almost primarily on discrediting 

Vande Mheen’s testimony. Through his cross-examination of 

the State’s witnesses, Ruegge attempted to demonstrate that no 

one actually saw Ruegge with the generator/welder except for 

Vande Mheen and that Vande Mheen was simply not a credible 

witness, because he had a reason to lie to the police and to the 

jury, that is, he knew the tool was stolen when he obtained it. 

Ruegge also elicited testimony from the State’s witnesses to 
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Cite as 21 Neb. App. 249

establish that Vande Mheen had actually obtained the stolen 

generator/welder from someone other than Ruegge.

After hearing all of the evidence, the jury convicted Ruegge 

of theft by receiving stolen property. The district court subsequently found Ruegge to be a habitual criminal and sentenced 

him to 10 years’ imprisonment.

Ruegge appeals his conviction here.

III. ASSIGNMENTS OF ERROR

On appeal, Ruegge assigns 11 errors, which we consolidate to 4 errors for our review. Ruegge first alleges that the 

evidence was insufficient to support his conviction. He also 

alleges that the State committed various instances of misconduct during voir dire and its opening and closing statements. 

He alleges that the district court erred by denying his request 

for a specific jury instruction. Finally, Ruegge asserts that he 

received ineffective assistance of trial counsel.

IV. ANALYSIS

1. Sufficiency of Evide

Ruegge alleges that the State presented insufficient evidence 

to prove beyond a reasonable doubt that he was ever in possession of the stolen generator/welder. Ruegge also alleges that 

the district court erred in overruling his motion for a directed 

verdict which was based upon insufficiency of the evidence. 

Upon our review, we conclude that the evidence was sufficient 

to support the conviction for theft by receiving stolen property 

and that, accordingly, the district court did not err in overruling 

Ruegge’s motion for a directed verdict.

(a) Standard of Review

[1] 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, 
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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. France, 279 Neb. 49, 

776 N.W.2d 510 (2009).

(b) Analysis

Ruegge was charged with and convicted of theft by receiving stolen property pursuant to § 28-517. Section 28-517 

provides: “A person commits theft if he receives, retains, or 

disposes of stolen movable property of another knowing that 

it has been stolen, or believing that it has been stolen, unless 

the property is received, retained, or disposed with intention to 

restore it to the owner.”

At trial, the State presented the testimony of Vande Mheen 

to establish that Ruegge was in possession of the generator/

welder and that he “disposed” of the generator/welder by 

trading it to Vande Mheen for a snowmobile. Vande Mheen 

testified that Ruegge brought the generator/welder to his home 

and offered Vande Mheen the tool as part of a trade. Vande 

Mheen accepted Ruegge’s offer and took possession of the 

generator/welder.

The State also presented evidence to establish that Ruegge 

knew the generator/welder was stolen at the time he traded 

the tool to Vande Mheen. Vande Mheen testified that Ruegge 

told him that he had previously purchased the generator/welder 

to assist him in the repair of irrigation systems. Other evidence suggested Ruegge’s statement to be untrue, because the 

generator/welder had belonged only to Scribner Grain prior to 

being stolen. Additionally, Vande Mheen testified that Ruegge 

told him to lie to police about where he had obtained the 

generator/welder. Ruegge told Vande Mheen to tell police that 

he had gotten the tool in a load of iron. Such evidence suggests 

that Ruegge knew the generator/welder was stolen and that he 

did not want to get into trouble for trading the stolen property 

to Vande Mheen.

The evidence presented by the State, if believed by the jury, 

was sufficient to establish that Ruegge was guilty of theft by 

receiving stolen property.
Decisions of the Nebraska Court of Appe

STATE v. RUEGGE 255

Cite as 21 Neb. App. 249

On appeal, Ruegge argues that Vande Mheen’s testimony is 

not credible and, as such, is insufficient to establish Ruegge’s 

guilt beyond a reasonable doubt. Specifically, Ruegge argues, 

“Vande Mheen is the only one that explains where he got the 

property and blamed it on [Ruegge].” Brief for appellant at 11. 

He goes on to assert that Vande Mheen’s “conflicts of interest 

are overwhelming for him to blame someone else and get the 

law enforcement off of his own back.” Id.

Ruegge’s arguments on appeal focus on the credibility of 

Vande Mheen. However, the jury, as the fact finder, clearly 

found Vande Mheen’s testimony to be credible, and we, as an 

appellate court, do not pass on the credibility of witnesses. 

See State v. France, supra. The jury convicted Ruegge of theft 

by receiving stolen property based on the testimony of Vande 

Mheen. And, as we discussed above, the jury was aware of 

Ruegge’s belief that Vande Mheen was lying in order to ensure 

that he was not also charged with a crime for being in possession of the stolen property.

Because the jury as the trier of fact could have found the 

essential elements of theft by receiving stolen property beyond 

a reasonable doubt based on Vande Mheen’s testimony, the 

evidence was sufficient to support Ruegge’s conviction. The 

district court did not err in overruling Ruegge’s motion for a 

directed verdict, and Ruegge’s assertions to the contrary have 

no merit.

2. Prosecutorial Miscond

Ruegge alleges that he is entitled to a new trial based upon 

prosecutorial misconduct which occurred during voir dire, during the State’s opening statement, and during the State’s closing argument. Upon our review, we conclude that Ruegge’s 

numerous assertions concerning prosecutorial misconduct are 

without merit.

(a) Standard of Review

[2,3] Whether prosecutorial misconduct is prejudicial 

depends largely on the facts of each case. State v. Faust, 269 

Neb. 749, 696 N.W.2d 420 (2005). An appellate court reviews 

a motion for new trial on the basis of prosecutorial misconduct 
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for an abuse of discretion by the trial court. State v. Castor, 

257 Neb. 572, 599 N.W.2d 201 (1999).

(b) Voir Dire

Ruegge alleges that the State committed misconduct during voir dire. Specifically, he alleges that the State committed misconduct when the prosecutor informed the jury that 

as a prosecutor, it is his job to be impartial to the people of 

Nebraska and the people of Holt County; when the prosecutor referred to “‘Tri-County Bank’” as “‘Brewster’s Bank’” 

(Steven Brewster was defense counsel during trial); when the 

prosecutor asked jurors whether they had the “nerve to admit” 

that they hate police officers; and when the prosecutor referred 

to Scribner Grain as the “victim” in this case. Brief for appellant at 13.

[4] A party may not raise alleged misconduct of adverse 

counsel on appeal where, despite knowledge of the alleged 

misconduct, the party claiming the misconduct failed to request 

a mistrial and instead agreed to take his or her chance on a 

favorable verdict. See State v. Anderson and Hochstein, 207 

Neb. 51, 296 N.W.2d 440 (1980).

Despite Ruegge’s assertions on appeal that the State committed multiple instances of misconduct during voir dire, he 

did not specifically object to any of the comments made by 

the prosecutor during voir dire, nor did he make a motion 

for a mistrial as a result of any of these instances. Because 

Ruegge failed to object to the State’s conduct during voir dire 

and failed to make a motion for a mistrial, we conclude that 

Ruegge failed to preserve for appellate review his assertions 

concerning the State’s misconduct during voir dire.

(c) Opening Statement

Ruegge alleges that the State committed misconduct during 

its opening statement. Specifically, he alleges that the State 

committed misconduct when the prosecutor discussed a line of 

inquiry conducted by defense counsel during voir dire which 

questioned the potential jurors’ opinions about the credibility 

of witnesses who have been given immunity. Ruegge goes 

on to allege that the prosecutor committed misconduct when 

he told the jury during his opening statement that he was no 
Decisions of the Nebraska Court of Appe

STATE v. RUEGGE 257

Cite as 21 Neb. App. 249

longer planning on presenting the testimony of any witness 

who had been given immunity.

During voir dire, defense counsel questioned each potential juror individually about his or her opinion concerning the 

credibility of a witness who has been given immunity against 

prosecution from certain crimes in exchange for his testimony. 

Defense counsel initiated this conversation by explaining to the 

jury pool:

Well, it’s always difficult because we don’t always know 

for sure what the testimony and what the evidence will 

be, but we think we know. And so what we’re trying to 

do is make sure that given — anticipating what that might 

be, that you feel comfortable that you can be fair and 

impartial. And that’s what the real goal is here.

And so, the next topic that I want to talk about is an 

idea called . . . immunity, meaning they won’t be prosecuted for any crimes or certain crimes, maybe, that they 

may have committed, in exchange for them testifying.

During defense counsel’s questioning of the potential 

jurors, many of the members on the panel expressed some 

discomfort in accepting or believing the testimony of someone who had been provided with immunity in exchange for 

his testimony.

After the parties selected a jury, the prosecutor gave an 

opening statement. During that statement, the prosecutor told 

the jury:

Now, after listening to two hours about what you folks 

think about lies and immunity, I’ve decided I won’t call 

anybody that’s been given immunity. I don’t need it. If I 

think I need it, I’ll call them and I’ll inform you if I put 

on anybody that’s been granted any form of immunity 

or not.

But because I felt that my witness had been somehow 

diminished by the questioning and the ill informed —

At this point in the prosecutor’s opening statement, defense 

counsel made an objection and asked to be heard by the court. 

The parties and the trial judge then proceeded to have a discussion in the judge’s chambers and outside the presence of 

the jury.
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During the in-chambers discussion, defense counsel argued 

that the prosecutor’s comments were “outside of the scope of 

[an] opening statement.” Defense counsel believed that the 

prosecutor was “making an argument rather than presenting 

what the evidence will be.”

The court disagreed with defense counsel’s assertions. The 

court stated:

Well, [the prosecutor is] explaining. You no doubt spent 

a considerable amount of time dealing with [the witness who was given immunity] and his shortcomings, 

and I think that the county attorney should be allowed 

to address that in his opening statement, because he’s no 

longer going to call him, and I think he’s entitled to tell 

the jury why he’s not going to call him.

. . . .

. . . I think [that during an opening statement] you 

can tell what you’re not going to have, you can tell what 

you’re going to have.

The court told defense counsel that the “[o]bjection’s noted” 

and permitted the prosecutor to continue with his opening 

statement. The prosecutor then informed the jury about the 

witnesses he planned on calling to testify and about what he 

believed the evidence would show.

[5] On appeal, Ruegge argues that the prosecutor committed misconduct during his opening statement by discussing the 

potential witness who had been given immunity. However, at 

trial, Ruegge did not argue that this discussion constituted misconduct, nor did he request a mistrial as a result of the prosecutor’s discussion. Instead, Ruegge objected on the basis that the 

prosecutor’s comments were outside the scope of an opening 

statement. On appeal, a defendant may not assert a different 

ground for an objection than was offered to the trier of fact. 

See State v. Muse, 15 Neb. App. 13, 721 N.W.2d 661 (2006). 

Because Ruegge did not object to the prosecutor’s statements 

on the basis of prosecutorial misconduct and because he did 

not make a motion for a mistrial as a result of the prosecutor’s 

statements, we conclude that he has waived appellate review 

of this issue.
Decisions of the Nebraska Court of Appe

STATE v. RUEGGE 259

Cite as 21 Neb. App. 249

However, to the extent that Ruegge suggests that the district 

court erred in overruling his objection to the prosecutor’s comments because the comments were not properly included in an 

opening statement, we conclude that Ruegge’s assertion has 

no merit.

[6] The Nebraska Supreme Court has previously held that 

“one is allowed considerable latitude in making an opening 

statement.” State v. Bradley, 236 Neb. 371, 401, 461 N.W.2d 

524, 544 (1990). In this case, a majority of the prosecutor’s 

opening statement was dedicated to telling the jury what evidence would be presented during the trial. However, prior to 

this recitation, the prosecutor informed the jury that he would 

no longer be calling any witness who had been given immunity. The prosecutor’s comments on this subject were clearly a 

response to defense counsel’s thorough and detailed discussion 

with the jury about the credibility of such witness testimony. 

The prosecutor did not tell the jury anything about the witness in question, nor did he relay anything about what that 

witness would have testified to if he had been called to the 

stand. The prosecutor’s comments were not inappropriate or 

outside the scope of an opening statement, and we do not find 

that the district court erred in overruling Ruegge’s objection to 

the comments.

(d) Closing Argument

Ruegge alleges that the State committed misconduct during its closing argument. Specifically, he alleges that the 

State committed misconduct when the prosecutor discussed 

the “chaos and anarchy” that would result from the improper 

use of the legal system, when the prosecutor informed the jury 

that he represents “the people,” when the prosecutor discussed 

a witness who did not testify at the trial, when the prosecutor 

told the jury that defense counsel is using a “standard tactic” 

in blaming someone else for the crime, when the prosecutor 

accused defense counsel of “lying” during his closing argument, and when the prosecutor told the jurors to “do the right 

thing” so that they are “fine” when they go home after the trial. 

Brief for appellant at 15-17.
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260 21 NEBRASKA APPELLATE REPORTS

(i) Discussion of Witness Who 

Did Not Testify at Trial

During the State’s closing argument, the prosecutor reiterated the statements he made during his opening statement concerning why he did not offer the testimony of any witness who 

had been given immunity. The prosecutor stated:

Now, first of all, it was my intention to put on another 

witness yesterday. But, after hearing all that talk from all 

of the prospective jurors about how you would not give 

credence to a person who had been granted immunity in 

exchange for his testimony, I put that to one side. I’m 

not going to belabor you with the testimony of a person 

that you’ve already told me you won’t pay any attention to.

That runs contrary to my personal and professional 

beliefs and experience. I’m in my 32nd or -3rd year of 

doing this, and years and years and years ago, I developed 

the concept or belief that it’s never wise to leave out a 

witness, because the jury always wonders what that witness would have said.

But, I’m not going to put on a witness that’s already 

been beaten up, bloodied, before we even get to trial, 

when the very jurors have told me they won’t believe 

him anyway. So I made a strategic decision yesterday to 

cut [that witness] out of the witness list. I don’t like to 

do that. But, you folks made your own bed there. You’re 

not going to hear the details that [the witness] could have 

provided us.

Therefore, just consider that your own responses 

resulted in not listening to what [that witness] had to say.

Defense counsel did not object to the prosecutor’s statements 

during the prosecutor’s closing argument. Instead, defense 

counsel waited to object until after all of the closing arguments 

had concluded, the court had read the jury its instructions, and 

the case had been submitted to the jury. At that time, defense 

counsel indicated to the court:

I would move for a mistrial based on the comments of 

[the prosecutor] during the closing, suggesting that the 

jury was the reason that we made the decision that [the 
Decisions of the Nebraska Court of Appe

STATE v. RUEGGE 261

Cite as 21 Neb. App. 249

witness who was given immunity] would not testify. I 

believe that was really a misstatement of the situation.

The court overruled the motion for a mistrial. The court 

indicated that the prosecutor was only explaining to the jury 

his decision not to call a certain witness to testify. The court 

also indicated its belief that the prosecutor’s comments were 

directly tied to defense counsel’s discussion of immunity during voir dire. Additionally, the court noted, “I also note that 

[your motion is] probably not very timely.”

On appeal, Ruegge argues that the district court erred in 

overruling the motion for a mistrial, because the prosecutor’s comments during his closing constituted misconduct that 

prejudiced Ruegge’s defense. Ruegge’s assertion has no merit, 

because the motion for a mistrial was not timely made.

[7] An objection to the prosecutor’s argument made after 

the jury has been instructed and has retired is untimely and for 

that reason will not be reviewed on appeal. State v. Hernandez, 

242 Neb. 78, 493 N.W.2d 181 (1992). Here, defense counsel 

did not motion for a mistrial concerning the prosecutor’s statements about the witness who was given immunity until after 

all of the closing arguments, after the court instructed the jury, 

and after the case had been submitted to the jury. The motion 

was clearly untimely, and as such, we do not review Ruegge’s 

assertions about the motion for a mistrial on appeal.

(ii) Reference to “Standard Defense” 

in Blaming Someone Else

During the State’s rebuttal argument, the prosecutor stated, 

“[Defense counsel], in his defense of . . . Ruegge, has taken 

up the standard defense that I’ve seen throughout my career. 

I label it transference. He’s transferred guilt from . . . Ruegge 

to . . . Vande Mheen and wants you to buy into that.” After 

the prosecutor made this statement, defense counsel asked the 

court whether he “may . . . be heard.” Then, both defense counsel and the prosecutor apparently approached the trial judge 

and conversed about something. However, this discussion was 

held off the record. As such, our record does not reflect what 

the parties discussed. When the discussion was over, the court 

noted, on the record, “Objection is overruled.”
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262 21 NEBRASKA APPELLATE REPORTS

[8] We can assume from the court’s statement that the 

“[o]bjection is overruled” that defense counsel made an objection to something. However, based on the record presented to 

us, we cannot, and do not, assume that defense counsel specifically objected to the prosecutor’s discussion about the “standard defense,” nor do we assume that defense counsel made a 

motion for a mistrial as a result of this discussion. See State v. 

Trackwell, 250 Neb. 46, 49, 547 N.W.2d 471, 474 (1996) (it is 

“incumbent upon an appellant to present a record which supports the errors assigned”).

Because Ruegge’s objection to the prosecutor’s comments 

was made and discussed off the record, we conclude that 

Ruegge failed to preserve for appellate review his assertions 

concerning the State’s misconduct in discussing Ruegge’s 

“standard defense.”

(iii) Other Allegations of Prosecutorial 

Misconduct During Closing Argument

Ruegge did not specifically object or make a motion for a 

mistrial as a result of any of his remaining allegations of prosecutorial misconduct during the State’s closing argument. As 

we discussed above, because Ruegge did not properly object 

or move for a mistrial, he has waived appellate review of these 

allegations. See State v. Anderson and Hochstein, 207 Neb. 51, 

296 N.W.2d 440 (1980).

3. Jury Instruction Amendm

Ruegge alleges that the district court erred in denying his 

request to amend proposed jury instruction No. 8. Proposed 

jury instruction No. 8 concerned the knowledge element of 

theft by receiving stolen property as defined by § 28-517. 

Upon our review, we conclude that Ruegge was not prejudiced 

by the district court’s failure to amend jury instruction No. 8 

and, as such, we conclude that this assignment of error has 

no merit.

(a) Standard of Review

[9] Whether jury instructions are correct is a question of law, 

which an appellate court resolves independently of the lower 

court’s decision. State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 

110 (2011).
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STATE v. RUEGGE 263

Cite as 21 Neb. App. 249

(b) Analysis

The district court’s proposed jury instructions included the 

following instruction, which was numbered “Instruction No. 8” 

and which was entitled “State of Mind”: “Knowledge or belief 

is an element of theft by receiving stolen property. In deciding 

whether the defendant possessed such knowledge or belief you 

should consider his words and acts and all of the surrounding 

circumstances.” During the jury instruction conference held 

after the parties had presented all of their evidence, Ruegge 

requested that proposed instruction No. 8 be amended to 

include the following language after the language of the original, proposed instruction: “The knowledge that the property 

has been stolen must be subjective knowledge, proved beyond 

a reasonable doubt.”

The district court denied Ruegge’s request to amend proposed jury instruction No. 8. Specifically, the court stated:

And I think that the instruction as written and as proposed 

as state of mind requires that the — or instructs the jury 

that knowledge or belief is an element, and then it tells 

the jury in deciding whether the defendant possessed such 

knowledge, they are to consider words, acts, et cetera. 

I think that, by its very definition, makes it subjective 

because they must determine that the defendant possessed or required the knowledge or belief. And so that 

is subjective.

And so the wording that you want, I would consider 

surplusage, and that . . . instruction is refused.

Instruction No. 8 was read to the jury as originally proposed 

and with no amendment.

On appeal, Ruegge argues that the district court erred in 

refusing to amend jury instruction No. 8 and that he was 

prejudiced because, ultimately, “the jury was not given the 

proper [i]nstruction when deciding this case.” Brief for appellant at 19. In his brief, Ruegge appears to assert that the district court should have included his proposed language in the 

jury instruction to make clear to the jury that it must find that 

Ruegge actually had knowledge that the generator/welder was 

stolen property. We conclude that Ruegge’s assertion has no 

merit, because the jury instruction actually provided to the jury 
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clearly indicates that the jury must find, from the evidence 

presented, that Ruegge knew the property was stolen. As such, 

Ruegge was not prejudiced by the court’s failure to amend jury 

instruction No. 8.

[10] 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. State v. Gangahar, 9 

Neb. App. 205, 609 N.W.2d 690 (2000).

[11] As we stated above, Ruegge was charged with and 

convicted of theft by receiving stolen property pursuant to 

§ 28-517. Section 28-517 provides: “A person commits theft 

if he receives, retains, or disposes of stolen movable property 

of another knowing that it has been stolen, or believing that it 

has been stolen, unless the property is received, retained, or 

disposed with intention to restore it to the owner.” We agree 

with Ruegge’s basic assertion that the term “knowing,” as used 

in § 28-517, imposes a subjective standard of knowledge. See 

State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011). 

Stated more simply, we agree with Ruegge that in order to 

convict Ruegge of theft by receiving stolen property, the State 

must have proven and the jury must have found that Ruegge 

possessed actual knowledge that the generator/welder was stolen property or believed that the property was stolen. This 

subjective standard of knowledge is in contrast to an objective 

standard of knowledge, which requires only a showing that a 

reasonable person in the defendant’s situation would or should 

have known that the property was stolen. See id.

However, we also agree with the district court’s comments 

at the jury instruction conference that proposed jury instruction 

No. 8 clearly instructed the jury that it must find that Ruegge 

possessed actual knowledge that the property was stolen in 

order to convict him. We also agree with the court’s assertion 

that Ruegge’s proposed amendment to instruction No. 8 was 

unnecessary “surplusage.”

In jury instruction No. 8, as read to the jury, the district 

court instructed the jury that it must find that “the defendant 
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possessed [the requisite] knowledge” and that in making 

that finding, the jury should consider the defendant’s own 

“words and acts and all of the surrounding circumstances.” 

As the district court indicated, this instruction, “by its very 

definition,” instructed the jury that it must find that Ruegge 

possessed a subjective knowledge that the property was stolen. As such, Ruegge’s proposed amendment, which would 

have added only an explicit statement that the knowledge 

required by § 28-517 was subjective in nature, was simply 

not necessary.

Because the district court’s instruction to the jury regarding 

the degree of knowledge Ruegge must have possessed to be 

found guilty of theft by receiving stolen property was correct 

and because Ruegge’s proposed amendment to that instruction would not have added anything substantive, we conclude 

that the district court did not err in denying Ruegge’s request 

to amend jury instruction No. 8. Ruegge cannot show that he 

was prejudiced in any way by the court’s decision to deny his 

request to amend the jury instruction.

4. Ineffective Assistan

of Trial Couns

[12,13] Ruegge asserts that his trial counsel was ineffective 

in a number of respects. 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 counsel’s performance was deficient and 

that this deficient performance actually prejudiced his or her 

defense. State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010). 

The two-prong ineffective assistance of counsel test need not 

be addressed in order. State v. Nesbitt, 279 Neb. 355, 777 

N.W.2d 821 (2010).

[14,15] When considering whether trial counsel’s performance was deficient, there is a strong presumption that counsel 

acted reasonably. Id. Furthermore, trial counsel is afforded due 

deference to formulate trial strategy and tactics. When reviewing a claim of ineffective assistance of counsel, an appellate 

court will not second-guess reasonable strategic decisions by 

counsel. Id.
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[16] A claim of ineffective assistance of counsel need not be 

dismissed merely because it is made on direct appeal. State v. 

Young, supra. The determining factor is whether the record is 

sufficient to adequately review the question. Id.

Because Ruegge has different counsel in this appeal from 

trial counsel, Ruegge can make a claim for ineffective assistance of trial counsel on direct appeal. See State v. York, 273 

Neb. 660, 664, 731 N.W.2d 597, 602 (2007) (“where appellate 

counsel is different from trial counsel, a defendant must raise 

on direct appeal any issue of ineffective assistance of trial 

counsel which is known to the defendant or is apparent from 

the record, or the issue will be procedurally barred on postconviction review”).

We now turn to Ruegge’s specific claims.

(a) Failure to Make Timely 

Motion for Mistrial

Ruegge alleges that trial counsel was ineffective in failing 

to make a timely motion for a mistrial after the prosecutor 

committed misconduct during his closing argument by explaining to the jury why he did not offer the testimony of any 

witness who had been given immunity. Upon our review, we 

conclude that Ruegge’s assertion has no merit. Ruegge cannot show that he was prejudiced by counsel’s failure to make 

a timely motion for a mistrial, because such a motion would 

have been unsuccessful.

As we discussed more thoroughly above, during the prosecutor’s closing argument, he commented to the jury that he 

had decided not to offer the testimony of a particular witness 

who had been given immunity. He went on to inform the jury 

that the basis for his decision was the comments and concerns 

voiced by many potential jurors during voir dire that they 

would have a problem believing or accepting the testimony of 

a witness who had been previously provided with immunity. 

Defense counsel motioned for a mistrial as a result of the prosecutor’s comments. However, the motion was made after the 

case was submitted to the jury and, as we concluded above, 

the motion was untimely and the issue was not preserved for 

appellate review.
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Despite the untimeliness of counsel’s motion for a mistrial, 

the district court did rule on the merits of the motion. The court 

overruled the motion and stated:

I think what the [prosecutor] was referring to was the 

fact that upon your inquiry of the panel, they had indicated — most, if not all of them, had indicated that they 

would discount or more intensely scrutinize the testimony 

of someone that had been granted immunity. And he 

was basically telling them because of their concerns, as 

expressed pursuant to your questions on voir dire, that he 

made a tactical decision not to call [that witness]. And I 

think that’s what he was referring to when he spoke to the 

. . . jury . . . .

We understand the district court’s comments to indicate its 

finding that the prosecutor’s remarks were simply not improper 

under the circumstances of this case. We agree with the district 

court’s finding.

[17,18] Generally, 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. 

State v. Balvin, 18 Neb. App. 690, 791 N.W.2d 352 (2010). A 

mistrial is appropriate when an event occurs during the course 

of a trial which is of such a nature that its damaging effects 

would prevent a fair trial. Id.

In light of the thorough discussion of immunity held during voir dire, we cannot say that the prosecutor’s comments to 

the jury about why he did not call any witness who had been 

given immunity were improper. Rather, it appears the prosecutor was merely trying to provide the jury with an explanation 

for the absence of such a witness. And, the prosecutor did not 

discuss what that witness would have testified to had he been 

called or provide any other extraneous, improper information 

to the jury.

Moreover, even if we were to find that the prosecutor’s 

comments were improper, it is difficult to imagine how the 

comments prejudiced Ruegge in any way. And, we note that in 
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268 21 NEBRASKA APPELLATE REPORTS

his brief on appeal, Ruegge does not articulate exactly why the 

comments were prejudicial in nature.

We conclude that if counsel had made a timely motion for 

a mistrial based on the prosecutor’s comments, such a motion 

would not have been successful, because the comments were 

not improper and did not prejudice Ruegge. As such, Ruegge 

cannot demonstrate that he was prejudiced by counsel’s failure 

to make a timely motion for a mistrial and this assertion of 

ineffective assistance of counsel is without merit.

(b) Failure to Object to Alleged Instances 

of Prosecutorial Misconduct

Ruegge alleges that trial counsel was also ineffective in 

failing to object or make a motion for a mistrial as a result of 

the other alleged instances of prosecutorial misconduct which 

occurred during voir dire, the State’s opening statement, and 

the State’s closing arguments. We have detailed Ruegge’s specific claims of prosecutorial misconduct in our analysis above. 

We do not repeat each of his claims here, because, ultimately, 

we conclude that our record is insufficient to review Ruegge’s 

claims that his trial counsel was ineffective for failing to 

object to each of these allegations of misconduct.

[19,20] The decision about whether to make an objection 

during a trial has long been considered an aspect of trial 

strategy. See State v. Huston, 285 Neb. 11, 824 N.W.2d 724 

(2013). In fact, the Nebraska Supreme Court has previously 

discussed the notion that a decision not to object could be 

explained by trial counsel’s calculated strategy not to highlight the objectionable material. See id. Because the decision 

about whether to object is considered an aspect of trial strategy, we must consider trial counsel’s strategy when reviewing 

his failure to object to each instance of alleged prosecutorial misconduct.

As we stated above, when reviewing claims of alleged ineffective assistance of counsel, trial counsel is afforded due 

deference to formulate trial strategy and tactics. See State v. 

Nesbitt, 279 Neb. 355, 777 N.W.2d 821 (2010). And, there 

is a strong presumption that counsel acted reasonably, and 

an appellate court will not second-guess reasonable strategic 
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decisions. See id. Because of this deference, the question 

whether the failure to object was part of counsel’s trial strategy 

is essential to a resolution of Ruegge’s ineffective assistance of 

counsel claims.

There is no evidence in the record that would allow us to 

determine whether Ruegge’s trial counsel consciously chose 

as part of a trial strategy not to object to the alleged instances 

of prosecutorial misconduct identified on appeal. Therefore, 

because the record is insufficient to adequately review Ruegge’s 

claims of ineffective assistance of counsel, we do not reach 

these claims on direct appeal.

(c) Waiver of Argument in Support 

of Directed Verdict Motion

Ruegge alleges that counsel was ineffective in failing to 

provide to the court any argument in support of his motion 

for a directed verdict at the close of the State’s presentation 

of evidence. We conclude that Ruegge’s assertion is without 

merit, because he cannot show that he was prejudiced by counsel’s actions.

Counsel did make a motion for a directed verdict on the 

basis of “[l]ack of evidence.” However, when the court asked 

counsel whether he wished to “point out where [he thought] 

the evidence [was] lacking,” counsel indicated, “I’ll waive 

. . . .” The district court then overruled the motion for a 

directed verdict.

The standard for granting a motion for a directed verdict 

is whether, after viewing all of the evidence in the light most 

favorable to the State, any rational trier of fact could find the 

essential elements of the crime beyond a reasonable doubt. See 

State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009). And, as 

we discussed more thoroughly above, the district court properly overruled counsel’s motion for a directed verdict, because 

the evidence presented by the State, if believed by the jury, 

was sufficient to establish that Ruegge was guilty of theft by 

receiving stolen property. Accordingly, no matter what argument defense counsel would or could have provided to the 

court in support of the motion for a directed verdict, his motion 

would have failed. Ruegge was not prejudiced by his counsel’s 
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270 21 NEBRASKA APPELLATE REPORTS

failure to offer any argument in support of the motion for a 

directed verdict.

(d) Failure to Present Defense

Ruegge alleges that counsel was ineffective in failing 

to present any evidence in his defense. However, he does 

not specify what evidence could have been presented in his 

defense, nor does he indicate what witnesses could, or should, 

have been called to testify in his defense. Moreover, he does 

not allege what any additional evidence or testimony would 

have shown or whether it would have altered the ultimate outcome of the trial.

In order to prevail on an ineffective assistance of counsel 

claim, a defendant must show that his or her counsel’s performance was deficient and that he or she was prejudiced by 

that deficient performance. State v. Thomas, 278 Neb. 248, 

769 N.W.2d 357 (2009). Because Ruegge does not specifically 

allege what other evidence or testimony could, or should, have 

been presented in his defense at the trial, he cannot demonstrate that he was prejudiced by his counsel’s failure to put on 

a defense. As such, this assertion has no merit.

V. CONCLUSION

Upon our review, we affirm Ruegge’s conviction for theft 

by receiving stolen property. We find that there was sufficient 

evidence presented at trial to support his conviction and that 

Ruegge’s assertions of error on appeal are without merit.

As to Ruegge’s claims of ineffective assistance of trial 

counsel, we find that he was not denied effective assistance 

of counsel when counsel failed to make a timely motion for 

a mistrial during the State’s closing arguments, when counsel 

waived making an argument in support of his motion for a 

directed verdict, and when counsel failed to put on evidence 

in Ruegge’s defense. We find that the record is insufficient to 

review the remaining grounds for Ruegge’s ineffective assistance of counsel claim.

Affirme