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State of Nebraska, appellee, v. 

Victor Guzman, appellant.

___ N.W.2d ___

Filed March 27, 2020. No. S-19-056.

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. Sentences: Appeal and Error. When a defendant challenges a sentence 

imposed by the district court as excessive and the State believes the 

sentence to be erroneous but has not complied with Neb. Rev. Stat. 

§ 29-2315.01 (Cum. Supp. 2018) or Neb. Rev. Stat. § 29-2321 (Reissue 

2016), the State may not assert such error via a cross-appeal.

3. Appeal and Error. An appellate court may, at its option, notice plain 

error.

4. Sentences: Statutes: Appeal and Error. A sentence that is contrary 

to the court’s statutory authority is an appropriate matter for plain 

error review.

5. Motions to Suppress: Confessions: Constitutional Law: Miranda 

Rights: Appeal and Error. In reviewing a motion to suppress a 

statement based on its claimed involuntariness, including claims that 

law enforcement procured it by violating the safeguards established 

by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 

S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a 

two-part standard of review. Regarding historical facts, an appellate 

court reviews the trial court’s findings for clear error. Whether those 

facts meet constitutional standards, however, is a question of law, 

which an appellate court reviews independently of the trial court’s 

determination.

6. Miranda Rights: Right to Counsel. In order to require cessation of 

custodial interrogation, the subject’s invocation of the right to counsel 

must be unambiguous and unequivocal.

Nebraska Supreme Court Online Library

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

06/05/2020 08:08 AM CDT
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7. Motions for Mistrial: Appeal and Error. Decisions regarding motions 

for mistrial are directed to the discretion of the trial court, and will be 

upheld in the absence of an abuse of discretion.

8. Trial: Prosecuting Attorneys: Appeal and Error. When considering 

a claim of prosecutorial misconduct, an appellate court first considers 

whether the prosecutor’s acts constitute misconduct.

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

for various conducts because the conduct will or may undermine a 

defendant’s right to a fair trial.

10. Witnesses: Impeachment. Generally, the credibility of a witness may 

be attacked by any party, including the party who called the witness.

11. ____: ____. One means of attacking the credibility of a witness is by 

showing inconsistency between his or her testimony at trial and what he 

or she said on previous occasions.

12. ____: ____. A party cannot impeach his or her own witness without 

limitation.

13. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A 

defendant who moves for dismissal or a directed verdict at the close of 

the evidence in the State’s case in chief in a criminal prosecution and 

who, when the court overrules the dismissal or directed verdict motion, 

proceeds with trial and introduces evidence, waives the appellate right 

to challenge correctness in the trial court’s overruling the motion for 

dismissal or a directed verdict but may still challenge the sufficiency of 

the evidence.

14. 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.

15. 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.
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16. Sentences: Appeal and Error. An appellate court will not disturb a sen

tence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

17. Appeal and Error. Plain error may be found on appeal when an error 

unasserted or uncomplained of at trial is plainly evident from the 

record, affects a litigant’s substantial right, and, if uncorrected, would 

result in damage to the integrity, reputation, and fairness of the judicial process.

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.

19. ____: ____. The failure to impose an indeterminate sentence when 

required by statute constitutes plain error.

20. ____: ____. An appellate court has the power on direct appeal to remand 

a cause for the imposition of a lawful sentence where an erroneous one 

has been pronounced.

Appeal from the District Court for Sarpy County: Stefanie 

A. Martinez, Judge. Affirmed in part, and in part vacated and 

remanded for resentencing.

Gregory A. Pivovar for appellant.

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

for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

Victor Guzman appeals from convictions, pursuant to jury 

verdict, and sentences for first degree sexual assault and tampering with a witness.

Two issues predominate. We again enforce our requirement 

that assignments of error on direct appeal regarding ineffective 

assistance of trial counsel must specifically allege deficient 

performance. And we resolve the State’s uncertainty whether 
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sentencing error in a criminal case tried in the district court can 

or must be raised by a cross-appeal—concluding that generally, 

a cross-appeal is not permitted.

We find no merit to Guzman’s claims regarding a motion to 

suppress, a motion for a mistrial, insufficiency of the evidence, 

and an excessive sentence for the sexual assault conviction. 

But we find plain error in the sentence for witness tampering, which should have been an indeterminate rather than a 

determinate sentence. We vacate that sentence and remand 

the cause for resentencing, but we otherwise affirm Guzman’s 

convictions and the sentence imposed for the sexual assault 

conviction.

II. BACKGROUND

We begin by setting forth the factual background for the 

crimes charged. Bearing in mind our standard of review, we 

summarize this evidence in the light most favorable to the 

State. Additional background relevant to particular errors 

assigned will be supplied in the analysis.

On September 22, 2017, B.G. held a party at her apartment, 

where she lived with her daughter. One of the invitees, Alexa 

Thomas, brought a group of eight or nine people whom B.G. 

did not know, including Guzman. B.G. consumed alcohol to 

the point of being “drunk.” She also snorted cocaine. B.G. 

began to feel sick and told everyone to leave. She vomited and 

then lay down in her bedroom.

B.G. heard her bedroom door open and saw a group of 

unknown males standing in her doorway. She felt her clothing 

being removed and her arms and legs being held. B.G. testified: “I said no. I said stop. Then I just gave up . . . [b]ecause 

there was [sic] too many.” Although B.G. did not give permission for anyone to have sex with her, she could tell that more 

than one male penetrated her vagina. Someone turned her head 

and inserted his penis in her mouth. According to an attendee 

at the party, Guzman said he had sex with B.G.

After B.G. began crying, the males left. B.G. checked on her 

daughter and then “passed out.” When B.G. woke, she called 
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her mother and asked her to come to B.G.’s apartment. At 

some point, B.G. told her mother that she had a party and “got 

raped.” B.G. went to a hospital and reported to a sexual assault 

nurse examiner that two assailants penetrated her vagina. A 

police officer spoke with B.G. at the hospital, and she told the 

officer that four to five males vaginally penetrated her with 

their penises.

Police conducted an investigation following B.G.’s report 

of the incident. Thomas shared with police text messages she 

exchanged with Guzman the morning after the party. In these 

text messages, Guzman told Thomas that he had video of a 

group of males having sex with B.G. Thomas asked if Guzman 

had sex with B.G., but he replied that he “was just [the] camera man.” After meeting with Thomas, an officer prepared an 

affidavit for a search warrant for Guzman’s cell phones.

The next day, officers went to Guzman’s place of employment to interview him and obtain any of his digital devices 

capable of storing electronic media. Upon questioning by an 

officer, Guzman consistently denied having sex with B.G. 

After interviewing Guzman, police arrested him. A forensic 

examination of one of Guzman’s cell phones uncovered three 

short videos taken between 6:41 and 6:49 a.m. on September 

23, 2017, which showed penile-vaginal intercourse with B.G.; 

one video additionally showed a penis being inserted into 

B.G.’s mouth.

The tampering with a witness charge arose out of Guzman’s 

October 2017 jail telephone call to Thomas. Thomas testified 

that Guzman wanted her to “tell [B.G.] to drop the charges.” 

Thomas complied, telling B.G. that Guzman wanted B.G. to 

drop the charges.

The jury returned verdicts of guilty on first degree sexual 

assault and on tampering with a witness, and the court accepted 

the verdicts. The court imposed a sentence of 12 to 20 years’ 

imprisonment for the sexual assault conviction and a concurrent sentence of 2 years’ imprisonment for the witness tampering conviction.
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Guzman appealed. The State filed a petition to bypass review 

by the Nebraska Court of Appeals—which we granted—and 

asserted a purported cross-appeal in its brief.

III. ASSIGNMENTS OF ERROR

1. Guzman’s Appeal

Guzman assigns that the district court erred in (1) overruling his motion to suppress, (2) failing to grant his motion for 

mistrial based on prosecutorial misconduct, (3) failing to grant 

a directed verdict, and (4) imposing excessive sentences.

Guzman also assigns that he received ineffective assistance 

of trial counsel. However, he failed to comply with our pronouncement regarding the specificity required for assignments 

of error alleging ineffective assistance of counsel.

[1] We declared last year that assignments of error on 

direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance. 1 And we 

stated that an appellate court will not scour the remainder 

of the brief in search of such specificity. 2 Since announcing the requirement, we have repeated it in three published 

decisions. 3 The purpose of a concurring opinion released on 

October 11, 2019, was to “remind the practicing bar” 4 of 

the requirement and caution counsel that “briefs filed after 

April 19, 2019, which fail to comply may have consequences 

beyond loss of such claims.” 5

Guzman’s brief—filed 3 months after our pronouncement—

failed to comply. His assignment of error alleged merely that 

1 See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).

2 See id.

3 See State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019); State v. Blaha, 

303 Neb. 415, 929 N.W.2d 494 (2019); and State v. Lee, 304 Neb. 252, 

934 N.W.2d 145 (2019). See, also, State v. Weathers, 304 Neb. 402, 935 

N.W.2d 185 (2019).

4 State v. Lee, supra note 3, 304 Neb. at 285, 934 N.W.2d at 168 (Cassel, J., 

concurring).

5 Id. at 286, 934 N.W.2d at 168 (Cassel, J., concurring).
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he “received ineffective assistance of trial counsel in numerous 

instances as more particularly set out hereinafter.” In Guzman’s 

reply brief, he argues that the assignment of error informed us 

that the particular allegations of ineffective assistance would 

be set forth with more particularity. And in the heading of his 

argument on the issue, Guzman identified five of the six particular deficiencies in all boldface and capital letters.

We decline to excuse counsel’s failure to comply with our 

pronouncement. Recently, the Court of Appeals exercised 

judicial grace by examining a brief’s argument section for 

the necessary specificity where the brief was filed 10 days 

after release of the opinion announcing the requirement. 6

No such grace ought to be afforded a brief filed 3 months 

after the pronouncement. Accordingly, we do not consider 

Guzman’s assignment of error alleging ineffective assistance 

of counsel.

2. State’s Purported Cross-Appeal

Using a belt-and-suspenders approach, the State raised a 

sentencing matter both as plain error in its responsive brief and 

in a purported cross-appeal. The State asserts that the court 

erred by imposing a determinate sentence for Guzman’s witness tampering conviction. Its brief recognizes that the matter 

could be deemed one of plain error, but explains that “out of 

an abundance of caution and uncertainty, [the State] raise[d] 

the matter in a cross[-]appeal.” 7 The State seeks guidance as 

to whether it can—and must—file a cross-appeal to raise an 

alleged error in sentencing where the district court was the trial 

court. We address this narrow question.

When a sentence imposed appeared to be erroneous and 

the appellant did not identify the error, the State’s traditional 

practice has been to broach the issue in its brief as an assertion of plain error. With or without such an assertion, we have 

6 See State v. Knox, No. A-19-266, 2020 WL 215849 (Neb. App. Jan. 14, 

2020) (selected for posting to court website).

7 Brief for appellee at 36.
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considered whether a sentence constituted plain error. 8 The 

State presumably proceeded in this manner because of case law 

declaring that the State has no right to cross-appeal in a criminal case when the district court is the trial court. 9

The State suggests the appellate courts have created uncertainty in this procedure by referencing the lack of a crossappeal in opinions where the district court was the trial court. 

The Court of Appeals recently refused to address the State’s 

suggestion of error in sentencing, because the State did not 

cross-appeal. 10 And in two cases that did not squarely present 

whether the State could cross-appeal, we stated “although the 

State did not file a cross-appeal” 11 before considering sentencing errors urged as plain error by the State. To the extent this 

language has created uncertainty, we disavow any suggestion 

that we were implying the State could have cross-appealed in 

those cases.

The preclusion of a cross-appeal by the State in a criminal 

case where the district court is the trial court relates to the 

State’s limited right to appeal in a criminal case. Absent specific statutory authorization, the State generally has no right to 

appeal an adverse ruling in a criminal case. 12 The Legislature 

provided two avenues for such an appeal: an exception proceeding under Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018) 

8 See, e.g., State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019); State v. 

Lessley, 301 Neb. 734, 919 N.W.2d 884 (2018); State v. Thompson, 301 

Neb. 472, 919 N.W.2d 122 (2018); State v. Vanness, 300 Neb. 159, 912 

N.W.2d 736 (2018); State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018); 

State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).

9 See, State v. Halsey, 232 Neb. 658, 441 N.W.2d 877 (1989); State v. 

Martinez, 198 Neb. 347, 252 N.W.2d 630 (1977); State v. Schnell, 17 Neb. 

App. 211, 757 N.W.2d 732 (2008). See, also, State v. Mortensen, 287 Neb. 

158, 841 N.W.2d 393 (2014).

10 State v. Magallanes, No. A-18-934, 2019 WL 3934465 (Neb. App. Aug. 

20, 2019) (selected for posting to court website).

11 See State v. Betancourt-Garcia, 295 Neb. 170, 190, 887 N.W.2d 296, 312 

(2016). Accord State v. Aguallo, 294 Neb. 177, 881 N.W.2d 918 (2016).

12 State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).
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and an excessively lenient sentence appeal authorized by Neb. 

Rev. Stat. § 29-2320 (Reissue 2016). 13

The right of appeal is purely statutory. 14 A court rule provides in part that “[t]he proper filing of an appeal shall vest in 

an appellee the right to a cross-appeal against any other party 

to the appeal.” 15 But a court rule cannot provide a right to 

appeal that does not exist in statute. And here, the State did not 

comply with the statutory prerequisites to appeal, 16 the dictates 

of which are to be strictly construed against the government. 17

Thus, it could not assert a cross-appeal. We express no opinion 

as to whether the State could assert a cross-appeal if it had 

complied with those statutory requisites.

[2-4] When a defendant challenges a sentence imposed by 

the district court as excessive and the State believes the sentence to be erroneous but has not complied with § 29-2315.01 

or § 29-2321, the State may not assert such error via a crossappeal. We see no error in the traditional procedure where the 

State identifies any plain sentencing errors in its responsive 

brief. An appellate court may, at its option, notice plain error. 18

A sentence that is contrary to the court’s statutory authority is 

an appropriate matter for plain error review. 19

IV. ANALYSIS

1. Motion to Suppress

(a) Additional Background

Law enforcement officers interviewed Guzman and recorded 

the conversation. When Guzman was brought into a room at 

13 See State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).

14 State v. Thalken, supra note 12.

15 Neb. Ct. R. App. P. § 2-101(E) (rev. 2015).

16 See, § 29-2315.01 and Neb. Rev. Stat. § 29-2321 (Reissue 2016).

17 See State v. Stafford, 278 Neb. 109, 767 N.W.2d 507 (2009).

18 See State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017), modified on 

denial of rehearing 296 Neb. 606, 894 N.W.2d 349.

19 State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).
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his place of employment, a detective identified himself as a 

police officer and read Guzman his Miranda rights. There 

is no dispute that from that point forward, Guzman was in 

custody.

Guzman moved to suppress his statements to police. He 

claimed that at almost 2 hours into the interview, he “clearly 

invoked his right to counsel, asking if he had the opportunity 

to get a lawyer, to which officers responded no.”

At the hearing on the motion to suppress, a detective testified that Guzman began asking questions “about when he could 

get a lawyer.” According to the detective, Guzman did not say 

he wanted a lawyer; rather, “he just asked about the process of 

getting one.” The detective testified: “We were talking about 

the search warrant. Essentially he was asking questions if he 

could get an attorney to deal with . . . the search warrant, if it 

could be stopped.”

The court overruled the motion to suppress. With regard to 

the invocation of a right to counsel, the court stated:

[A]t the 1 hour, 54 minute mark, [Guzman] asked officers, 

“Can I talk to a lawyer first?” . . . [W]hen putting it in 

the context of what was occurring during said exchange, 

the Court finds that [Guzman] did not clearly invoke his 

rights. Specifically, law enforcement [officers were] in 

the process of searching [Guzman’s] phone, and while 

doing so, [Guzman] was conversing with them about the 

search and asked if he could speak with a lawyer before 

they searched his phone. [They] informed him that they 

already had a search warrant and that he did not get to 

speak to an attorney before they conducted the search. 

Thus, the Court finds that [Guzman’s] statement of “Can 

I talk to a lawyer first” was in the context of the search, 

rather than a clear invocation of his Miranda rights for 

purposes of the custodial interrogation.

(b) Standard of Review

[5] In reviewing a motion to suppress a statement based 

on its claimed involuntariness, including claims that law 
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enforcement procured it by violating the safeguards established by the U.S. Supreme Court in Miranda v. Arizona,

 20

an appellate court applies a two-part standard of review. 

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error. Whether those facts meet 

constitutional standards, however, is a question of law, which 

an appellate court reviews independently of the trial court’s 

determination. 21

(c) Discussion

On appeal, Guzman does not dispute that he waived his 

Miranda rights during the custodial interrogation. “[A]fter 

a knowing and voluntary waiver of the Miranda rights, law 

enforcement officers may continue questioning until and unless 

the suspect clearly requests an attorney.” 22 And Guzman does 

not challenge the district court’s factual findings. Rather, 

Guzman argues that he requested an attorney at the 1-hour54-minute mark of the recorded interrogation and that thus, any 

statements he made should have been suppressed.

[6] In order to require cessation of custodial interrogation, 

the subject’s invocation of the right to counsel must be unambiguous and unequivocal. 23 “Statements such as ‘“[m]aybe 

I should talk to a lawyer”’ or ‘“I probably should have an 

attorney”’ do not meet this standard.” 24 Guzman contends that 

his question—“‘Can I talk to a lawyer first?’”—was a clear 

invocation of the right to counsel. We disagree. “An expression 

of doubt or uncertainty cannot be considered unequivocal.” 25

Similarly, an Arizona court determined that “‘Do you think I 

20 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966).

21 State v. Clifton, 296 Neb. 135, 892 N.W.2d 112 (2017).

22 Davis v. United States, 512 U.S. 452, 461, 114 S. Ct. 2350, 129 L. Ed. 2d 

362 (1994).

23 State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).

24 Id. at 959, 774 N.W.2d at 744-45.

25 State v. Lynch, 169 N.H. 689, 697, 156 A.3d 1012, 1019 (2017).
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should get a lawyer?’” does not constitute an invocation of 

right to counsel. 26 Here, Guzman never explicitly stated that he 

wished to have an attorney present.

The circumstances surrounding an alleged invocation are 

part of the objective inquiry into whether such an invocation 

of the right to counsel was made. The U.S. Supreme Court 

explained that “if a suspect makes a reference to an attorney 

that is ambiguous or equivocal in that a reasonable officer in 

light of the circumstances would have understood only that the 

suspect might be invoking the right to counsel, [the Court’s] 

precedents do not require the cessation of questioning.” 27 Here, 

the officers perceived Guzman’s question about an attorney to 

be in connection with the search for his cell phones and not an 

assertion that Guzman did not wish to speak without an attorney present. That perception was reasonable under the circumstances. The district court did not err in overruling Guzman’s 

motion to suppress.

2. Motion for Mistrial

(a) Additional Background

In March 2018, Ruben Rodriguez was deposed on Guzman’s 

behalf. At trial, the State called Rodriguez as a witness during 

the State’s case in chief. When asked where he had lived in 

the past 5 years, Rodriguez provided information which was 

inconsistent with his deposition testimony. When Rodriguez 

testified that he saw B.G. at her party in October 2017, the 

prosecutor impeached him with his deposition testimony that 

the party was in September. When Rodriguez named seven 

people with whom he went to the party, the State pointed out 

that Rodriguez testified in his deposition that he went to the 

party with four individuals. During trial, Rodriguez also gave 

answers different from those in his deposition as to when he 

took an individual home, how may beers he consumed at the 

26 See State v. Prince, 160 Ariz. 268, 272, 772 P.2d 1121, 1125 (1989).

27 Davis v. United States, supra note 22, 512 U.S. at 459 (emphasis in 

original).
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party, whether a certain individual was at the party, whether he 

saw Guzman walk B.G. up the stairs, and whether he made a 

“gas station run.”

In a conversation out of the jury’s presence and unprompted 

by defense counsel, the court raised a concern that Rodriguez 

provided no substantive evidence. The court opined that “the 

sole purpose for hi[s] being called was to discredit him in 

any testimony he may have,” which the court did not think 

was permissible. The prosecutor responded that he expected 

Rodriguez would testify consistently with his deposition. 

Because Rodriguez did not, the prosecutor wanted “to make 

sure that the record’s clear on what he’s testifying to.” The 

prosecutor stated that he did not call Rodriguez “simply to 

impeach him.” The court then directed the parties to brief 

whether it is permissible to call a witness for the limited 

purpose of discrediting the witness. With the jury present, 

the court announced, “There ha[ve] been some conversations 

between Counsel and I need them to follow up on something 

for me, so we’re going to be recessing for the weekend a little 

bit early today.”

When trial resumed after the weekend break, Guzman 

moved for a mistrial. His counsel explained that he subpoenaed 

Rodriguez, because Rodriguez had exculpatory information, 

but that “what the State did was discredit that witness before 

[the defense] could call him and elicit the exculpatory information.” The State argued that it “can’t control whether someone 

is going to get up there and lie or not, and they [sic] had no 

reason to expect them [sic] to.” The court found that there was 

not sufficient evidence that the State called Rodriguez for the 

purpose of impeachment.

(b) Standard of Review

[7] Decisions regarding motions for mistrial are directed 

to the discretion of the trial court, and will be upheld in the 

absence of an abuse of discretion. 28

28 State v. Schmaltz, 304 Neb. 74, 933 N.W.2d 435 (2019).
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(c) Discussion

Guzman argues that the court erred in not granting his 

motion for mistrial based on prosecutorial misconduct. Before 

considering whether a mistrial would be proper, we must determine whether there was misconduct by the prosecution.

[8,9] When considering a claim of prosecutorial misconduct, 

an appellate court first considers whether the prosecutor’s acts 

constitute misconduct. 29 Prosecutorial misconduct encompasses 

conduct that violates legal or ethical standards for various conducts because the conduct will or may undermine a defendant’s 

right to a fair trial. 30 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. 31 A prosecutor’s conduct that does not mislead and 

unduly influence the jury is not misconduct. 32

According to Guzman, the prosecutor engaged in misconduct 

by calling Rodriguez as a witness and impeaching him with 

testimony from his deposition on “trivial matters.” 33 Guzman 

contends that the State attacked Rodriguez’ credibility before 

Guzman could call Rodriguez as a witness.

[10-12] Generally, the credibility of a witness may be 

attacked by any party, including the party who called the witness. 34 One means of attacking the credibility of a witness is by 

showing inconsistency between his or her testimony at trial and 

what he or she said on previous occasions. 35 But a party cannot 

impeach his or her own witness without limitation. 36

29 Id.

30 Id.

31 Id.

32 Id.

33 Brief for appellant at 25.

34 State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015).

35 Id.

36 Id.
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The State’s impeachment of Rodriguez does not amount 

to prosecutorial misconduct. The State called Rodriguez to 

testify, because he had information useful to the State’s case. 

The State had no reason to anticipate that Rodriguez would 

not testify consistently with his sworn deposition testimony. 

Assuming without deciding that Guzman’s motion for mistrial 

was timely, the court did not abuse its discretion in overruling 

the motion.

3. Motion for Directed Verdict

(a) Additional Background

[13] Guzman challenges the denial of his motion for 

directed verdict, but he waived the issue by presenting evidence. After the court overruled Guzman’s motion for a 

directed verdict of acquittal on both charges, the defense 

proceeded to call a witness. A defendant who moves for dismissal or a directed verdict at the close of the evidence in 

the State’s case in chief in a criminal prosecution and who, 

when the court overrules the dismissal or directed verdict 

motion, proceeds with trial and introduces evidence, waives 

the appellate right to challenge correctness in the trial court’s 

overruling the motion for dismissal or a directed verdict but 

may still challenge the sufficiency of the evidence. 37 We consider Guzman’s argument as one challenging the sufficiency 

of the evidence.

(b) Standard of Review

[14] 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, 

37 State v. Briggs, supra note 8.
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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. 38

(c) Discussion

[15] 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. 39 The State met its burden with respect to both charges.

With respect to the sexual assault charge, Guzman’s brief 

does little more than attack the credibility of B.G. But an 

appellate court does not pass on the credibility of witnesses or 

reweigh the evidence. B.G. testified that she did not consent 

to having sex with anyone on the night of her party, and an 

attendee at the party testified that Guzman said he had sex 

with B.G. There was also abundant testimony about B.G.’s 

intoxication. Viewing the evidence most favorably to the State, 

a fact finder could conclude that Guzman subjected B.G. to 

sexual penetration without her consent or under circumstances 

when he knew or should have known that B.G. was mentally 

or physically incapable of resisting or appraising the nature of 

her conduct. 40

Guzman also contends that the State failed to adduce sufficient evidence to support the charge of tampering with a witness. Under Neb. Rev. Stat. § 28-919(1) (Reissue 2016):

A person commits the offense of tampering with a witness or informant if, believing that an official proceeding 

or investigation of a criminal or civil matter is pending 

or about to be instituted, he or she attempts to induce or 

otherwise cause a witness or informant to:

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

39 Id.

40 See Neb. Rev. Stat. § 28-319(1) (Reissue 2016).
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(a) Testify or inform falsely;

(b) Withhold any testimony, information, document, 

or thing;

(c) Elude legal process summoning him or her to testify or supply evidence; or

(d) Absent himself or herself from any proceeding 

or investigation to which he or she has been legally 

summoned.

Guzman asserts that he merely relayed a message asking 

B.G. to drop the charges and that such action did not constitute 

tampering with a witness. He claims that he did not threaten or 

bribe B.G., did not ask her to testify falsely, and did not ask 

her not to go to court. But B.G. reported that she was sexually 

assaulted. By asking B.G. to drop the charges, Guzman was 

essentially asking her to inform falsely or to withhold information. The State adduced sufficient evidence at trial to support 

the conviction for tampering with a witness.

4. Sentences

(a) Additional Background

Finally, Guzman argues that his sentences were excessive. 

For first degree sexual assault, a Class II felony, 41 the court 

imposed a sentence of 12 to 20 years’ incarceration. At the 

time of the crime and sentencing, tampering with a witness was 

a Class IV felony. 42 For that conviction, the court imposed a 

concurrent sentence of 2 years.

(b) Standard of Review

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

within the statutory limits absent an abuse of discretion by the 

trial court. 43

[17] Plain error may be found on appeal when an error unasserted or uncomplained of at trial is plainly evident from the 

41 See § 28-319(2).

42 See § 28-919(3).

43 State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).
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record, affects a litigant’s substantial right, and, if uncorrected, 

would result in damage to the integrity, reputation, and fairness 

of the judicial process. 44

(c) Discussion

[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. 45 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 

law-abiding conduct, and (6) motivation for the offense, as well 

as (7) the nature of the offense and (8) the amount of violence 

involved in the commission of the crime. 46 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. 47

Guzman argues that an examination of the presentence report 

shows the sentencing factors weigh in favor of a lighter sentence. Some do. According to the presentence report, Guzman 

was 21 years old, was a high school graduate, and was consist

ently employed prior to incarceration. His minimal criminal 

record consisted of traffic violations, an “MIP,” and a curfew 

violation. But other considerations do not favor a light sentence. An instrument designed to determine a defendant’s risk 

for recidivism put him in the high risk range to reoffend. With 

respect to the charges he stated: “‘Bullshit. It’s embarrassing 

and has affected everyone around me. This case has ruined 

44 State v. Briggs, supra note 8.

45 See State v. Iddings, supra note 43.

46 Id.

47 Id.
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my character. It’s the worst thing that could have happened 

to me.’” We cannot say that the court abused its discretion in 

sentencing Guzman.

However, the State asserts that the court’s sentence for the 

witness tampering conviction was erroneous. Here, the court 

imposed a sentence for a Class II felony and a concurrent 

determinate sentence for a Class IV felony for offenses occurring in 2017. But a statute provides:

For any sentence of imprisonment for a Class . . . IV felony . . . imposed consecutively or concurrently with . . . a 

sentence of imprisonment for a Class . . . II . . . felony, the 

court shall impose an indeterminate sentence within the 

applicable range in section 28-105 that does not include a 

period of post-release supervision, in accordance with the 

process set forth in section 29-2204. 48

[19,20] The court plainly erred by imposing a determinate 

sentence for the Class IV felony. The failure to impose an indeterminate sentence when required by statute constitutes plain 

error. 49 An appellate court has the power on direct appeal to 

remand a cause for the imposition of a lawful sentence where 

an erroneous one has been pronounced. 50 We therefore vacate 

Guzman’s sentence for tampering with a witness and remand 

the cause for resentencing on that conviction.

V. CONCLUSION

Because Guzman failed to include the required specificity in 

his assignment of error alleging ineffective assistance of trial 

counsel, we do not consider it. And we clarify that the State 

has no right to cross-appeal under these circumstances.

We conclude that the court did not err in overruling 

Guzman’s motion to suppress and motion for mistrial. Viewing 

the evidence in the light most favorable to the State, we further 

48 Neb. Rev. Stat. § 29-2204.02(4) (Reissue 2016) (emphasis supplied).

49 State v. Briggs, supra note 8.

50 See State v. Kantaras, supra note 19.
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conclude that the evidence at trial supported Guzman’s convictions. Finally, we determine that the court did not impose 

excessive sentences. However, because the court erred by 

imposing a determinate sentence for the witness tampering 

conviction, we vacate that sentence and remand the cause for 

resentencing on that count only.

Affirmed in part, and in part vacated

and remanded for resentencing.