                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                          STATE V. SMITH


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                 V.

                                  MELVIN L. SMITH, APPELLANT.


                            Filed February 26, 2019.     No. A-18-662.


        Appeal from the District Court for Lancaster County, JODI L. NELSON, Judge, on appeal
thereto from the County Court for Lancaster County, LAURIE J. YARDLEY, Judge. Judgment of
District Court affirmed in part, and in part reversed.
       Timothy S. Noerrlinger, of Naylor & Rappl Law Office, and, on brief, Megan R. Theesen,
for appellant.
       Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.


       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       RIEDMANN, Judge.
                                       I. INTRODUCTION
        Melvin L. Smith appeals an order of the district court for Lancaster County affirming his
conviction and sentence by the county court for Lancaster County for third degree domestic assault
and dismissing two of his ineffective assistance of counsel claims. On appeal, Smith alleges that
the district court erred in finding (1) harmless error in the admission of certain evidence, (2) that
the evidence was sufficient to support his conviction, and (3) that he could not show prejudice on
two of his ineffective assistance of counsel claims. We affirm in part and in part reverse.




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                                         II. BACKGROUND
         The State filed a criminal complaint charging Smith with third degree domestic assault
pursuant to Neb. Rev. Stat. § 28-323(1)(a) or (b) (Reissue 2016). The charge stemmed from an
altercation between Smith and his ex-girlfriend, Tiffany Isley, which occurred in May 2017. A
jury trial was held in the county court for Lancaster County in August.
         At the trial, Isley testified that she had dated Smith for 6 years, but their relationship ended
in 2016. Smith and Isley had lived together until their relationship ended; however, Smith had left
some personal items at Isley’s house after he moved out. On the day of the altercation, Smith
contacted Isley to retrieve his personal belongings, and arrived at her house at 10 p.m. Isley
testified that when she met Smith outside her house, he was very angry and upset, and called Isley
a “bitch-ass ho.” Isley stated that Smith then punched her in the face.
         Isley further testified that after being punched she went inside her house and attempted to
stop her nose from bleeding. Isley’s daughter saw her as she was attempting to clean herself and
called the police. Isley stated that Smith called her before the police arrived and told her, “if you
put me in jail, I’m going to get out and beat your ass. Tiffany, you better not send me to jail on this
bullshit.” Once the police arrived at Isley’s house, they took pictures of her face. Smith continued
to call Isley while the police were present. Isley answered one call and placed her phone on speaker
phone, where Smith stated, “I should come over there and beat your ass. You best believe that.”
Isley then accused Smith of punching her in the nose, to which Smith did not respond.
         The prosecutor then asked Isley about subsequent phone calls she had received from Smith
the weekend before trial. Isley testified that Smith was “rambling on, and screaming, and carrying
on about me getting my ass whipped.” Isley stated that Smith did not say anything specific about
her testifying at trial.
         The State also presented testimony from Isley’s daughter and the two police officers who
assisted Isley at her house; all three witnesses corroborated parts of Isley’s account of the
altercation. Isley’s daughter testified that she looked out her window and saw Isley talking to Smith
in the driveway. When Isley came back into the house, she was crying and upset and her nose was
bleeding. Isley’s daughter also stated that Smith repeatedly called Isley while the police were
present at the house, and that Isley answered one call from Smith and put it on speaker phone.
         Lincoln Police Officers Daniel Cleveland and Darryl Hume responded to Isley’s house.
Each officer testified that Isley’s nose was bleeding and she was very distressed when they arrived.
The officers also testified that Isley received a phone call from a man she identified as Smith while
they were present, and Smith stated, “I should come over there and beat your ass. You best believe
that.”
         Smith testified at trial that he had stored some possessions at Isley’s house, and called her
on the day of the altercation to pick up his belongings. Smith stated that as he started to back out
of Isley’s driveway, she reached in his car and tried to grab him by the face. Isley then started
“patting her nose,” and said that Smith had hit her. Smith testified that he saw Isley slap her nose
over 10 times. Following his testimony, Smith informed the trial judge that he had a witness present
who could “testify to the behavior of this woman.” However, Smith’s attorney informed the court




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that the witness was not present on the date of the altercation, and therefore her testimony was not
relevant.
        The jury subsequently found Smith guilty of third degree domestic assault. Smith was
sentenced to 200 days in jail. Smith moved for a new trial, which was denied by the county court.
Smith then appealed his conviction to the district court for Lancaster County. In his appeal, Smith
argued that there was insufficient evidence to convict him of third degree domestic assault under
§ 28-323; the county court erred in overruling his motion for a new trial; and that he received
ineffective assistance of counsel. The district court affirmed Smith’s conviction, finding that any
errors committed by the county court were harmless, Smith received effective assistance of
counsel, and that there was sufficient evidence to convict him of third degree domestic assault.
Smith timely appeals to this court.
                                 III. ASSIGNMENTS OF ERROR
        Smith assigns, restated, that the district court erred in finding (1) the admission of his
subsequent phone calls to Isley without a hearing was harmless error, (2) that Smith received
effective assistance of counsel, and (3) there was sufficient evidence to support Smith’s conviction.
                                  IV. STANDARD OF REVIEW
         Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017). In
reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides
only questions of law: Are the undisputed facts contained within the record sufficient to
conclusively determine whether counsel did or did not provide effective assistance and whether
the defendant was or was not prejudiced by counsel’s alleged deficient performance. Id.
         In reviewing a criminal conviction for sufficiency of the evidence claim, whether the
evidence is direct, circumstantial or a combination thereof, the standard is the same: an appellate
court does not resolve conflicts in the evidence, pass on the credibility of the witnesses, or reweigh
the evidence; such matters are for the finder of fact. State v. Jones, 293 Neb. 452, 878 N.W.2d 379
(2016). The relevant question when an appellate court reviews a sufficiency of the evidence claim
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. Id.
                                          V. ANALYSIS
                      1. ADMISSION OF SMITH’S SUBSEQUENT PHONE CALLS
       Smith first asserts that the district court erred by finding that the county court’s admission
of subsequent phone calls Smith made to Isley the weekend before trial was harmless error. We
disagree.
       Smith argues that these subsequent phone calls were inadmissible under Neb. Rev. Stat.
§ 27-404(2) (Reissue 2016). Section 27-404(2) states:
       Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
       person in order to show that he or she acted in conformity therewith. It may, however, be




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       admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
       plan, knowledge, identity, or absence of mistake or accident.

         When seeking to admit evidence under § 27-404, the prosecution must prove by clear and
convincing evidence that the defendant committed the crime, wrong, or act, and such proof must
be established outside the presence of the jury. § 27-404(3). A trial court must then determine
whether the evidence is independently relevant, which means its relevance does not depend on its
ability to show propensity. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). When
requested, the trial court must instruct the jury on the specific purpose or purposes for which it is
admitting the extrinsic acts evidence under § 27-404(2). State v. Burries, supra.
         At trial, the State questioned Isley regarding phone calls she received from Smith the
weekend before trial. Isley testified that she answered some of the calls and recognized Smith’s
voice, and that Smith was “rambling on, and screaming, and carrying on about me getting my ass
whipped.” However, Smith did not object to the State’s questioning of Isley regarding these
subsequent phone calls. Thus, because Smith failed to object to the admission of the evidence, he
waived his right to claim prejudicial error on appeal. See State v. Swindle, 300 Neb. 734, 915
N.W.2d 795 (2018) (failure to make timely objection waives right to assert prejudicial error on
appeal).
         On appeal, Smith urges this court to find that the county court’s admission of the testimony
regarding his subsequent phone calls to Isley was plain error. Plain error will be noted only where
an error is evident from the record, prejudicially effects a substantial right of a litigant, and is of
such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage
to the integrity, reputation, and fairness of the judicial process. State v. Young, 279 Neb. 602, 780
N.W.2d 28 (2010). We decline to find plain error in the county court’s admission of Smith’s
subsequent phone calls to Isley because the district court was correct in determining that any error
made by the county court was harmless error.
          The Nebraska Supreme Court’s harmless error jurisprudence recognizes that not all trial
errors, even those of constitutional magnitude, entitle a criminal defendant to the reversal of an
adverse trial result. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018). It is only prejudicial
error, that is error which cannot be said to be harmless beyond a reasonable doubt, which requires
a reversal. Id. When determining whether an alleged error is so prejudicial as to justify reversal,
courts generally consider whether the error, in light of the totality of the record, influenced the
outcome of the case. Id. The erroneous admission of evidence is harmless error and does not
require reversal if the evidence is cumulative and other relevant evidence, properly admitted,
supports the finding by the trier of fact. State v. DeJong, 287 Neb. 864, 845 N.W.2d 858 (2014).
Cumulative evidence tends to prove the same point of which other evidence has been offered. State
v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).
         Here, Smith is unable to establish that he was prejudiced by the county court’s admittance
of testimony regarding his subsequent phone calls to Isley. The record contained testimony from
Isley, Isley’s daughter, Cleveland, and Hume, all of whom testified that Smith called Isley later
the evening of the altercation. Isley testified that Smith called both prior to police arriving at her
house, and again while the police were present. In both phone calls, Smith threatened Isley with



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physical harm. As the district court noted, and contrary to Smith’s assertion on appeal, the properly
admitted phone calls from Smith to Isley directly after the altercation would still be before the jury
even if Smith’s subsequent calls were not, and the calls directly after the altercation were stronger
evidence of Smith’s guilt. Thus, in light of the other evidence properly admitted against Smith, it
cannot be said that testimony regarding his subsequent calls to Isley the weekend before trial
influenced the jury’s decision to find him guilty of third degree domestic assault. Therefore, the
district court was correct in determining that the county court’s admission of Smith’s subsequent
phone calls to Isley was harmless error.
                             2. INEFFECTIVE ASSISTANCE OF COUNSEL
        In his second assigned error, Smith argues that the district court erred in determining that
he received effective assistance of trial counsel. On appeal, Smith asserts that his counsel was
ineffective in four ways, for failing to (1) object to the introduction of § 27-404(2) evidence, (2)
investigate Smith’s competency and seek a competency hearing, (3) adequately investigate
Smith’s case and prepare for trial, and (4) call a material witness at trial. We disagree.
        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. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015). A claim of ineffective assistance
of counsel need not be dismissed merely because it is made on direct appeal. Id. The determining
factor is whether the record is sufficient to adequately review the question. Id. When the claim is
raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant
must make specific allegations of the conduct that he or she claims constitutes deficient
performance by trial counsel. Id.
        Appellate courts have generally reached ineffective assistance of counsel claims on direct
appeal only in those instances where it was clear from the record that such claims were without
merit or in the rare cases where trial counsel’s error was so egregious and resulted in such a high
level of prejudice that no tactic or strategy could overcome the effect of the error, which effect was
a fundamentally unfair trial. Id. An ineffective assistance of counsel claim made on direct appeal
can be found to be without merit if the record establishes that trial counsel’s performance was not
deficient or that the appellant could not establish prejudice. Id.
                           (a) Failure to Object to § 27-404(2) Evidence
        Smith first alleges that his trial counsel was ineffective for not objecting to the § 27-404(2)
evidence offered by the State. The district court determined that Smith was unable to prove he was
prejudiced by this alleged deficient performance and we agree.
        As iterated above, any error in failing to object to the subsequent phone calls was harmless
error. The properly admitted evidence proved that Smith made calls to Isley immediately after the
assault threatening to “beat her ass” and these calls were more probative of Smith’s guilt than the
subsequent calls made the weekend before trial. The record reveals that Smith is unable to establish
that he was prejudiced by the admission of these subsequent phone calls. To show prejudice under
the prejudice component of the Strickland test, the defendant must demonstrate a reasonable




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probability that but for his or her counsel’s deficient performance, the result of the proceeding
would have been different. State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017). A reasonable
probability does not require that it be more likely than not that the deficient performance altered
the outcome of the case; rather, the defendant must show a probability sufficient to undermine
confidence in the outcome. Id.
         Smith is unable to demonstrate that but for his counsel’s failure to object to the admission
of his subsequent phone calls to Isley, the result of the trial would have been different. The jury
heard testimony establishing that Smith called Isley at least twice following the altercation, once
before police arrived to Isley’s house, and once while police officers were present. As the district
court stated, those phone calls were much stronger evidence of Smith’s guilt than were the
subsequent calls. Thus, even if the subsequent phone calls had been excluded, the jury still heard
evidence of the phone calls made by Smith directly after the altercation to consider as evidence of
Smith’s guilt. Therefore, we find that the district court did not err in denying Smith’s claim that
his trial counsel was ineffective for failing to object to the admission of his subsequent phone calls
to Isley.
                              (b) Competency Evaluation and Hearing
         Smith next argues that his trial counsel was ineffective for failing to investigate his
competency to stand trial and failing to seek a competency hearing. The district court determined
counsel was not ineffective for failing to investigate Smith’s competency and we agree.
         A person is competent to plead or stand trial if he or she has the capacity to understand the
nature and object of the proceedings against him or her, to comprehend his or her own condition
in reference to such proceedings, and to make a rational defense. State v. Dunkin, 283 Neb. 30,
807 N.W.2d 744 (2012). In order to demonstrate prejudice from counsel’s failure to investigate
competency and failure to seek a competency hearing, the defendant must demonstrate that there
is a reasonable probability that he or she was in fact incompetent, and that the trial court would
have found the defendant incompetent had a competency hearing been conducted. State v. Hessler,
282 Neb. 935, 807 N.W.2d 504 (2011). Counsel is not ineffective for failing to undertake useless
procedural challenges merely to create a record impregnable to assault for claimed inadequacy of
counsel. Id. A defendant’s unstable emotional state, paranoid ideation, or occasional outbursts in
court does not render him incompetent. State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).
         Here, Smith is unable to demonstrate that he was prejudiced by his counsel’s failure to
investigate his competency and to seek a competency hearing because Smith cannot establish that
there is a reasonable probability he was incompetent at the time of trial. In his appeal, Smith argues
that because his behavior was disruptive and concerning, he expressed confusion during the trial,
and because a subsequent court found him to be incompetent a month after this trial, there is a
reasonable probability that he was incompetent to stand trial. Smith’s arguments are without merit.
         First, as noted by the district court, there is nothing in the record indicating that Smith did
not understand the proceedings against him. Although Smith did demonstrate erratic behavior and
frequent outbursts during trial, those actions do not render him incompetent to stand trial. See State
v. Guatney, supra. Further, Smith asserts that on several occasions he stated he did not understand




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what was occurring at trial, which indicates he was struggling to understand the nature of the
proceedings. However, Smith misstates the record.
         While Smith did state that he was confused or did not understand what was occurring
numerous times during the trial, he was expressing confusion at the testimony being offered, as he
believed it was untruthful. Smith was not expressing confusion about the nature of the proceedings
against him; rather, he was expressing his disbelief that the State was bringing charges against him
at all. Contrary to Smith’s assertions regarding competency, the record reveals through Smith’s
outbreaks at trial, that he did, in fact, understand the proceedings. He questioned counsel’s decision
not to call a witness, he objected to certain testimony and exhibits, and he engaged in substantial
dialogue with the court regarding the no contact order she put in place at the conclusion of the
trial. The record supports a finding that Smith was competent and his competency was displayed
through his attempts to participate in the proceedings.
         Finally, the district court was correct in noting that the finding of a subsequent court
regarding Smith’s competency has no bearing on what occurred in this case. In this case, there is
nothing in the record which indicates that there was a reasonable probability that Smith would be
found to be incompetent to stand trial. Thus, Smith’s counsel was not ineffective for failing to
investigate his competency or for failing to seek a competency hearing.
                   (c) Failure to Investigate Smith’s Case and Prepare for Trial
        Smith also alleges that he received ineffective assistance of counsel because his trial
counsel failed to adequately investigate his case and prepare for trial. Specifically, Smith asserts
that his trial counsel failed to obtain cell phone records from either himself or Isley. Smith argues
that, because the jury asked whether there were any phone records or text messages “from her” on
his phone, the outcome of the trial likely would have been different had his counsel obtained the
phone records. The district court determined that the record was insufficient to establish that Smith
was prejudiced by counsel’s failure to obtain and introduce cell phone records. We determine,
however, that the record is insufficient to address this issue.
        The record does not include any information as to what the phone records would reveal, of
if they were even attainable. Although Smith argues that he asked his trial counsel to obtain the
records, the record is void of information supporting his assertion. Thus, we agree with the State
that this error cannot be addressed on direct appeal.
                                (d) Failure to Call Material Witness
         Finally, Smith argues that he received ineffective assistance of counsel because his attorney
did not call a material witness who could have testified regarding Isley’s motive to lie. Smith
further argued that the witness could have testified that Isley had expressed disapproval and
jealousy over the relationship between Smith and the witness. The district court determined that
the record supports that the decision not to call this particular witness to testify was a matter of
trial strategy. We disagree.
         Smith asserts this witness would have established a motive for Isley to lie; in the
conversation on the record between Smith and his counsel, counsel states she was not calling the
witness because she was not present on the date of the altercation. This does not address whether




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the witness’ testimony would have supported Smith’s reason for desiring her testimony. The record
does not include any information as to the substance of the witness’ potential testimony.
Additionally, the record is void of information regarding any discussion between Smith and his
attorney in relation to the full substance of the witness’ testimony.
        We therefore disagree with the district court’s finding that counsel’s decision not to call
the particular witness was a matter of trial strategy, and agree with the State that the record is
insufficient to address this assigned error.
                                    3. SUFFICIENCY OF EVIDENCE
        In his third assigned error, Smith asserts that the State presented insufficient evidence to
convict him of third degree domestic assault. We disagree.
        A person commits the offense of third degree domestic assault if he or she intentionally or
knowingly causes bodily injury to his or her intimate partner, or threatens an intimate partner with
imminent bodily injury. § 28-323(1)(a) and (b). Intimate partner includes persons who are or were
involved in a dating relationship. § 28-323(8). It is not disputed that Isley was Smith’s intimate
partner.
        On appeal, Smith argues that there is insufficient evidence to convict him because no
independent witnesses observed the altercation and Isley was an unreliable witness in that she over
exaggerated her injuries and her testimony differed from that of other witnesses. Smith’s
arguments are without merit.
        First, although Smith and Isley were the only two people present for the altercation, the
State presented testimony from Isley’s daughter, and Cleveland and Hume, who responded to the
altercation. Isley’s daughter testified that her mom was crying and upset when she came inside and
that her nose was bleeding. Isley’s daughter called the police when Isley said that Smith hit her.
Both police officers testified that when they arrived, Isley’s nose was bleeding and she was very
distressed. Additionally, both officers stated that a male, who Isley identified as Smith, called Isley
and stated “I should come over there and beat your ass. You best believe that.”
        Further, Isley testified that she received a call from Smith prior to police arriving where
Smith stated, “Tiffany, if you send me to jail, I’m getting out and I will whip your ass.” Contrary
to Smith’s assertion on appeal, Isley was not testifying regarding the phone call Smith made while
the police were present at her house; rather, she was testifying regarding a call Smith made prior
to the police arriving.
        Smith, on the other hand, testified that Isley’s nose was bleeding because she had “patted”
herself in the face until it bled, and then called the police on Smith. In light of the testimony
presented at trial, there was sufficient evidence for the jury to convict Smith of third degree
domestic assault. Isley testified that Smith punched her as they talked outside her house. Her
account was supported by her daughter’s testimony that she observed Isley cleaning her face in
the bathroom after she came inside. Cleveland and Hume also corroborated Isley’s account by
taking photographs of her face and testifying regarding the phone call that Smith made while they
were present.
        Moreover, Smith’s assertion that Isley was not a reliable witness seeks to have this court
weigh the credibility of witnesses, which we decline to do. The standard of review for an



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insufficient evidence claim prohibits this court from reweighing the evidence or critiquing the
credibility of witnesses. State v. Jones, 293 Neb. 452, 878 N.W.2d 379 (2016). Therefore, viewing
the evidence in a light most favorable to the prosecution, which means accepting the State’s version
of the altercation, there is sufficient evidence to establish beyond a reasonable doubt that Smith
punched Isley, causing bodily injury. The district court did not error in finding sufficient evidence
for the conviction of third degree assault domestic assault.
                                        VI. CONCLUSION
        We affirm Smith’s conviction in the county court, finding that the district court did not err
in determining that the county court’s admission of Smith’s subsequent phone calls to Isley was
harmless error, and in determining that there was sufficient evidence to convict Smith of third
degree domestic assault. We further find that the district court did not err in denying Smith’s first
two claims of ineffective assistance of counsel. However, we find that the district court erred in
finding the record sufficient to deny Smith’s claim of ineffective assistance of counsel regarding
his counsel’s investigation of his case and failure to call a material witness.
                                                         AFFIRMED IN PART, AND IN PART REVERSED.




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