                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                          STATE V. LEHN


  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.

                                   BEAU A. LEHN, APPELLANT.


                               Filed April 2, 2019.   No. A-18-508.


        Appeal from the District Court for Hall County, TERESA K. LUTHER, Judge, on appeal
thereto from the County Court for Hall County, ARTHUR S. WETZEL, Judge. Judgment of District
Court affirmed.
       Charles R. Maser for appellant.
       Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.


       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       BISHOP, Judge.
                                         INTRODUCTION
        Following a bench trial, the county court for Hall County found Beau A. Lehn guilty of
domestic assault in the third degree (first offense) and sentenced him to 30 days’ imprisonment.
Lehn appealed to the Hall County District Court, challenging his conviction and sentence; he also
claimed he received ineffective assistance of trial counsel. Lehn appeals from the district court’s
order which affirmed the county court’s judgment and found no merit to Lehn’s ineffective
assistance of counsel claim. We affirm.
                                         BACKGROUND
       On December 11, 2016, Lehn and Yiho Frances got into an argument about an alarm
system Lehn was trying to install. Lehn ended up throwing “a thing of duct tape” at Frances, hitting



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her in the leg, and the police were called. The State subsequently charged Lehn in the county court
with one count of domestic assault in the third degree (first offense). The State alleged that Lehn
intentionally and knowingly caused bodily injury to his intimate partner or threatened his intimate
partner with imminent bodily injury; the victim being Frances.
         A bench trial was held on August 28, 2017. Both Frances and Lehn generally testified about
the argument they had about an alarm system Lehn was trying to install (at Frances’ apartment).
Frances said that she and Lehn were dating at the time of the incident and that they had a child
together.
         Describing the incident, Frances said Lehn tried to throw “a little piece of the alarm” at her
but it did not hit her. In response, Frances “got mad” and threw a pen at Lehn, which hit him in the
eye or on his eyebrow. At that point, she said Lehn threw the “duct tape,” which she said was
“almost completely gone,” and she acknowledged was a “mostly used-up roll of duct tape.”
Sometime after that, Frances called the police “[j]ust to get [Lehn] out of the house”; she and her
children were “in the car the whole time” while waiting for the police. Frances indicated that she
told an officer that Lehn threw “a duct tape thing” at her and it hit her on her leg. Frances testified
that she did not think Lehn intended to hurt her, and that she did not go to the hospital, nor did she
need “stiches or Band-Aids or anything like that.” When the State asked if it caused her pain, she
answered, “I guess, yeah.” She added that it caused redness to her leg. She stated that “the cops
[were] trying to, like, make it, honestly, like pit us against each other, it felt like.” The county court
received into evidence exhibit 1, which Frances identified as the duct tape Lehn threw at her.
         Wendy Baker, a law enforcement officer for the Grand Island Police Department, testified
that she was on duty the night of December 11, 2016. She responded to the incident at Frances’
apartment and briefly spoke to Lehn. According to Officer Baker, Lehn told her that “[h]e threw a
piece of plastic toward [Frances], but he wasn’t intending to hurt her, by any means.” Officer Baker
said she observed a “mark on [Frances’] left leg. Thigh”; the officer identified exhibit 3
(photograph) as a depiction of that “red mark.” In the officer’s experience, that depiction was
“consistent with the roll of tape that [Frances] said was thrown at her.”
         After the State rested, Lehn testified. He said he was putting in an alarm system because
his son “had learned how to do the deadbolt,” so he put the alarm on so they would know when he
was going outside. He claimed that he tossed a “little plastic piece that fell off” towards Frances,
but he was just “trying to mess around,” not hit or hurt her. Lehn denied throwing the roll of duct
tape at Frances, hitting or threatening her, or causing the “red mark” on her. Lehn recalled talking
to Officer Baker about how he did not intend to hurt Frances, and he recalled telling another officer
there that he was “just kidding around” and had thrown “the plastic piece.” Lehn acknowledged
being upset when Frances hit him next to his eye with a pen; it made him mad, and after she had
hit him in the face, he “started yelling and stuff like that.”
         The county court found that Lehn was “guilty of domestic assault.” At the sentencing
hearing on October 20, 2017, the county court sentenced Lehn to 30 days’ imprisonment, with
credit for time served. The county court allowed Lehn’s appearance bond to serve as an appeal
bond, since it was noted that an appeal would be filed.
         Lehn appealed to the district court, assigning as errors that (1) the judgment was not
supported by the evidence, (2) his sentence was arbitrary and capricious, and (3) his trial counsel



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was ineffective. The district court entered an order on May 9, 2018, affirming the judgment of the
county court, finding that “competent credible evidence” supported the judgment, and that Lehn’s
sentence was in the lower range of penalties and should be affirmed. The district court also denied
Lehn’s claim of ineffective assistance of trial counsel, stating that the record did not show that
Lehn’s trial counsel was deficient. Lehn appeals.
                                   ASSIGNMENTS OF ERROR
        Lehn claims, restated and reordered, that (1) there was insufficient evidence to support the
judgment, (2) the district court erred in affirming the county court’s decision, (3) his sentence was
arbitrary and capricious, and (4) he received ineffective assistance of trial counsel.
                                    STANDARD OF REVIEW
       An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).
       Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018). In reviewing
claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether
the undisputed facts contained within the record are 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.
                                            ANALYSIS
                               ERRORS ASSIGNED BUT NOT ARGUED
        Lehn assigned as errors that the evidence was insufficient to support his conviction and
that the district court erred by affirming the county court’s decision. However, the “Arguments”
section of his appellate brief does not contain a subsection addressing either of those assigned
errors as required under Neb. Ct. R. App. P. § 2-109(D) (rev. 2014).
        We note that in the “Summary of Argument” section of his brief, Lehn writes, “[t]he State’s
evidence fell short of proving [him] guilty of domestic assault, third degree. There was no showing
that anything he did resulted in harm or injury to an intimate partner.” Brief for appellant at 6.
Further, he claims, “[t]he [d]istrict [c]ourt erred in affirming [his] conviction and [his] sentence.”
Id. Nowhere else in his brief is there any further argument for either of those issues. Lehn merely
reiterated his assignments of error in his “Summary of Argument,” but he neither cited to the record
or legal authority, nor argued beyond conclusory and generalized assertions. Accordingly, these
assigned errors have not been preserved for our review, and we do not address them any further.
See, State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016) (alleged error must be both specifically
assigned and specifically argued in brief of party asserting error to be considered by appellate
court); State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014) (argument that does little more
than to restate assignment of error does not support assignment, and appellate court will not
address it).




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                                       EXCESSIVE SENTENCE
        Lehn assigns that his sentence was excessive. The county court convicted him of domestic
assault in the third degree (first offense) under Neb. Rev. Stat. § 28-323(1)(a) (Reissue 2016),
which is a Class I misdemeanor under § 28-323(4). A Class I misdemeanor is punishable by a
maximum of 1 year of imprisonment, a $1,000 fine, or both. Neb. Rev. Stat. § 28-106 (Reissue
2016). The county court sentenced Lehn to 30 days’ imprisonment, with credit “for days served,
to be determined by corrections.” This sentence was certainly within the statutory range.
        Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. State v. Leahy, supra. 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. Id.
        At the sentencing hearing, the State admitted that although the assault in this case “was not
the most egregious,” it argued Lehn was “already on probation to the district court for strangulation
of the same victim,” had “continued to show disregard for the laws of the state of Nebraska,” and
had “an extensive criminal history.” The State asserted that Lehn “was given an opportunity . . . to
prove that he could follow the terms of probation and ha[d] in fact violated by once again striking
the same victim.” The State requested a term of incarceration. Lehn’s trial counsel informed the
court that Lehn maintained his innocence and that Lehn intended to file an appeal. He asked that
Lehn be sentenced to a fine. Lehn personally addressed the court, stating that he had two children
and could lose his job if he was incarcerated.
        On appeal, Lehn argues that “due to the relatively minor nature of the event,” his sentence
of incarceration “exceeds that which is reasonable.” Brief for appellant at 8. He asserts his sentence
should have been probation. He contends that the county court did not consider relevant sentencing
factors, considerations he deems are “a prerequisite when sentencing.” Id. at 9.
        However, a sentencing court is not required to make specific factual findings to justify the
sentence imposed. See State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017). Further, the legal
factors Lehn claims are a prerequisite when sentencing are merely factors that the law
acknowledges are customarily considered during sentencing of a defendant; no factor is mandatory
to review. See State v. Leahy, supra. Because 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, a sentencing court
is accorded very wide discretion in imposing a sentence. State v. Rogers, supra.
        The record shows that, when convicting Lehn, the county court commented on its view of
the nature of Lehn’s offense:
        [T]his is a pretty typical situation that the [county c]ourt sees. Things get heated, arguments
        take place, injuries get caused; and the next morning when everything calms down, they
        want everything to go away. Unfortunately, that’s the nature of domestic assault. It’s kind




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       of the nature of the beast. And it is apparent to the [county c]ourt, based on the testimony
       and my judging of the credibility, that that’s what occurred in this case.

As argued by the State at sentencing, while most of Lehn’s “extensive criminal history” involved
driving offenses or shoplifting offenses, “the most serious aspect of this case is the fact that [Lehn]
had once again assaulted the same intimate partner that he’s currently serving probation . . . on.”
Lehn was apparently already on probation “for strangulation of the same victim.”
        When reviewing Lehn’s sentence, the district court noted that Lehn’s sentence of 30 days
was “in the lower range of possible penalties and should be affirmed.” We find nothing
inappropriate in the record, nor does Lehn direct us to anything, to suggest any improper
considerations by the county court in determining Lehn’s sentence. We conclude that the county
court did not abuse its discretion in determining Lehn’s sentence, and the district court properly
affirmed it.
                               INEFFECTIVE ASSISTANCE OF COUNSEL
         When a defendant’s trial counsel is different from his or her counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is
known to the defendant or is apparent from the record. State v. Casares, 291 Neb. 150, 864 N.W.2d
667 (2015). Otherwise, the issue will be procedurally barred. Id. Lehn’s trial counsel was allowed
to withdraw after sentencing; new counsel was appointed to represent Lehn on appeal to the district
court and continues to represent him for this appeal.
         On appeal to the district court, Lehn assigned as error that he was generally “denied
effective assistance of counsel.” At the hearing in the district court, Lehn’s appellate counsel
argued that Lehn’s trial counsel stated at sentencing that Lehn had “some issues with not only the
questions that were asked, but that [trial counsel] did not have some witnesses present.” Lehn’s
appellate counsel wanted to “have a hearing on the ineffective assistance of counsel, whether or
not these things would have made a difference had that evidence been brought up
through -- probably would have been a couple other witnesses, and then some follow-up questions
that need to be asked.” Lehn’s appellate counsel later said, “[T]here was more than one officer
present . . . [t]hat’s the officer -- one of the officers that [Lehn] is saying [trial counsel] should
have called, because he probably had some different evidence.”
         The district court allowed each party to prepare a brief upon Lehn’s appellate counsel’s
request to do so, apparently to address his assigned error of ineffective assistance of counsel. The
district court’s order suggests those briefs were submitted, but the briefs are not contained in our
record. And the district court’s order does not reveal any other details about the claim. It says,
“[Lehn] argue[d] that his counsel was ineffective” and “[a] review of the record does not reveal
that counsel was deficient in his performance and this basis for relief cannot prevail.” Aside from
what we summarized above, we do not have any other detailed information about what Lehn
alleged on appeal to the district court as to how his trial counsel was ineffective.
         In the present appeal, Lehn asserts that his trial counsel was ineffective for failing to (1)
aggressively cross-examine Officer Baker regarding foundation for her opinion that the mark on
Frances was consistent with being hit by a roll of duct tape, (2) object when Officer Baker opined



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on the causation of the mark on Frances, (3) call as a witness the other officer who was at the scene
on the night of the incident, or (4) argue any mitigation or point out inconsistent testimony in his
closing argument. Except for the third-listed claim, our record does not reflect that those claims
were specifically raised before the district court. See State v. Ash, 293 Neb. 583, 878 N.W.2d 569
(2016) (defendant must make specific allegations of conduct that he or she claims constitutes
deficient performance). All of those issues are claims against Lehn’s trial counsel that Lehn would
have been aware of at the time of his appeal to the district court, or even if he did not have that
awareness, were apparent from the record. As a result, all but the third-listed claim are procedurally
barred. See State v. Casares, supra. Accordingly, we turn our attention to the only ineffective
assistance claim Lehn also raised in the district court: his trial counsel’s failure to call as a witness
the other officer who was at the scene on the night of the incident.
        Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show
that his or her counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018).
However, the fact that an ineffective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. See id. The determining factor is whether the record is
sufficient to adequately review the question. Id. General allegations that trial counsel performed
deficiently or that trial counsel was ineffective are insufficient to raise an ineffective assistance
claim on direct appeal and thereby preserve the issue for later review. State v. Filholm, 287 Neb.
763, 848 N.W.2d 571 (2014).
        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. State v. Filholm, supra. To show that counsel’s
performance was deficient, a defendant must show that counsel’s performance did not equal that
of a lawyer with ordinary training and skill in criminal law. State v. Avina-Murillo, supra. To show
prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different. Id. A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Id.
        During trial, Lehn indicated that there was “another officer” besides Officer Baker at the
scene of the incident. He said he had talked to that “other officer” and told the “truth.” He claimed
he told “the other officer” “exactly” what happened--that he was “just kidding around about it, you
know, like I’d thrown the plastic piece.” On appeal, Lehn argues that the “other officer” had
“talked to [Lehn] at the scene and presumably had information which could have been helpful” to
Lehn. Brief for appellant at 9. His appellate brief contains no further argument about this claim.
        Lehn does not describe what information this second officer had that would have resulted
in a different outcome at trial. His claim that he told the second officer everything that happened
would have resulted in testimony from that officer which would have merely reiterated Lehn’s
own testimony as to what he claimed had happened. Having an officer testify that Lehn told him
he was just “kidding around” or that Lehn claimed to have only thrown a piece of plastic would
have done nothing to contradict the other evidence presented. Further, Officer Baker testified that
Lehn told her that “[h]e threw a piece of plastic toward [Frances], but he wasn’t intending to hurt



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her, by any means.” Lehn does not assert that the second officer’s testimony would have been any
different than the testimony provided by Officer Baker or by Lehn himself. Therefore, even if we
were to conclude that trial counsel’s failure to call the second officer as a witness was somehow
deficient, which we do not, Lehn could not establish prejudice because Lehn has not demonstrated
a reasonable probability the result of the proceeding would have been different but for this alleged
deficient performance by his trial counsel. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. State v. Avina-Murillo, supra. The record is sufficient to
conclude that this ineffective assistance of trial counsel claim has no merit.
                                         CONCLUSION
       For the reasons set forth above, we affirm Lehn’s conviction and sentence.
                                                                                        AFFIRMED.




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