                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. CAMPBELL


  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.

                                DANIEL J. CAMPBELL, APPELLANT.


                            Filed November 5, 2019.     No. A-18-723.


       Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge. Affirmed.
       Gregory A. Pivovar for appellant.
       Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.


       MOORE, Chief Judge, and PIRTLE and WELCH, Judges.
       PIRTLE, Judge.
                                      I. INTRODUCTION
        Daniel J. Campbell appeals the order of the Douglas County District Court denying his
motion for postconviction relief without an evidentiary hearing and without appointing counsel.
The district court held that Campbell’s ineffective assistance of counsel claims did not warrant an
evidentiary hearing because he failed to establish prejudice. The district court further held
Campbell’s claims of juror misconduct and improper jury instructions were issues that could have
been brought on direct appeal and therefore were procedurally barred. For the reasons that follow,
we affirm.




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                                       II. BACKGROUND
                           1. TRIAL PROCEEDINGS AND DIRECT APPEAL
        After a jury trial, Campbell was convicted of seven felonies: two counts of attempted
assault on an officer (25 to 25 years’ imprisonment), one count of discharging a firearm while in
or in proximity of any motor vehicle at any person or occupied motor vehicle (10 to 10 years’
imprisonment), three counts of use of a deadly weapon to commit a felony (10 to 10 years’
imprisonment), and one count of possession of a deadly weapon by a prohibited person (10 to 10
years’ imprisonment). The convictions were a result of Campbell’s actions of firing a shotgun at
two Nebraska State Patrol troopers as they were attempting to initiate a traffic stop of the vehicle
Campbell was a passenger in. The sentences on each count were ordered to run consecutively,
resulting in a total sentence of 100 to 100 years’ imprisonment.
        On direct appeal, we affirmed Campbell’s convictions and sentences on all seven charges.
See State v. Campbell, No. A-16-176, 2016 WL 6872979 (Neb. App. Nov. 22, 2016) (selected for
posting to court website). We found that there was sufficient evidence to find Campbell guilty on
all seven charges in the amended information and that the district court did not impose excessive
sentences. Id.
        Campbell was represented by the same attorney at trial and on direct appeal.
                                2. POSTCONVICTION PROCEEDINGS
         In August 2017, Campbell filed a pro se motion for postconviction relief claiming
ineffective assistance of trial and appellate counsel, juror misconduct, and improper jury
instructions.
         Campbell alleged his trial counsel was ineffective for (1) failing to argue his motions for
new trial or withdraw and allow him to argue the motions himself; (2) continuing to represent him
through the appeal despite obvious dissatisfaction with his performance; (3) failing to properly
investigate and challenge the production of the weapon found months after the incident; (4) failing
to challenge and properly cross-examine and impeach the State’s witness, Marissa McCormack;
(5) failing to seek independent testing of the firearm alleged to have been used in the incident; (6)
failing to depose one of the State’s witnesses, Christian Sipherd, and present to him a lineup to
show that no identification of Campbell could be made; (7) failing to challenge and seek evaluation
of McCormack’s competency; (8) failing to object to testimony regarding Campbell’s possession
of the same or a similar shotgun days before the incident; (9) failing to challenge discussion
between two witnesses in close proximity to one of the jurors as violating the sequestration order
and denying Campbell a fair trial; (10) failing to challenge certain jury instructions as incomplete;
(11) failing to seek an independent evaluation of DNA evidence to show it as inconclusive; (12)
failing to have the gunshot residue testing that was done processed; and (13) failing to sequester
the jury in light of a recent shooting of an Omaha police officer.
         Campbell further alleged that certain communications between two of the State’s witnesses
made within close proximity of one of the jurors outside of the courtroom amounted to juror
misconduct and the district court’s failure to declare a mistrial or remove the juror from the case
denied him a fair trial.




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        Finally, Campbell alleged that the jury was improperly instructed on the charge of
discharging a firearm while in or in proximity of any motor vehicle at any person or occupied
motor vehicle. Campbell argues that the instruction that was given to the jury improperly excluded
the term “recklessly” and that such omission removed an essential issue or element of the case.
Campbell correctly noted in his postconviction motion that no objection was made to any of the
jury instructions at trial.
                              3. DENIAL OF POSTCONVICTION RELIEF
       On July 9, 2018, the district court denied Campbell’s motion for postconviction relief
without an evidentiary hearing. It concluded that Campbell’s claims of ineffective assistance of
counsel were “generic” and failed to allege prejudice.
       [T]he facts alleged by [Campbell] relating to failure to investigate are generic, do not state
       what exculpatory evidence would have been gathered, or how a different result would have
       been obtained. Such facts are insufficient to warrant an evidentiary hearing. See State v.
       Biloff, 18 Neb. App. 215, 778 N.W.2d 497 (2009) (finding it insufficient to state counsel
       was ineffective in failing to properly investigate when defendant failed to include
       “allegations about what his attorney would have uncovered had his attorney interviewed
       witnesses or examined the evidence”).

As to both of Campbell’s claims of juror misconduct and improper jury instructions, the district
court held that such claims were issues that could have been brought on direct appeal and were
therefore procedurally barred. Campbell timely appeals.
                                III. ASSIGNMENTS OF ERROR
        Campbell assigns, restated, that the district court erred in (1) denying him an evidentiary
hearing on his motion for postconviction relief based on allegations of ineffective assistance of
counsel for failure to investigate and challenge the State’s witnesses and evidence, (2) finding that
his postconviction claim of juror misconduct was procedurally barred by failure to raise it on direct
appeal, and (3) finding that his postconviction claim of improper jury instructions was procedurally
barred by failure to raise it on direct appeal.
                                  IV. STANDARD OF REVIEW
        In appeals from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirmatively show that the defendant is
entitled to no relief. State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).
        Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law which is reviewed independently of the lower court’s ruling. State v. Tyler, 301 Neb. 365,
918 N.W.2d 306 (2018).
                                          V. ANALYSIS
       Postconviction relief is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or her constitutional rights



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such that the judgment was void or voidable. State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018).
In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute
a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the
judgment against the defendant to be void or voidable. State v. Allen, supra. Relief under the
Nebraska Postconviction Act, Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016), is a very
narrow category of relief. State v. Allen, supra.
        On appeal from the denial of postconviction relief without an evidentiary hearing, the
question is not whether the movant was entitled to relief by having made the requisite showing.
State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018). Instead, it must be determined whether
the allegations were sufficient to grant an evidentiary hearing. Id. If a postconviction motion
alleges only conclusions of fact or law, or if the records and files in the case affirmatively show
that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.
State v. Barber, 26 Neb. App. 339, 918 N.W.2d 359 (2018) (citing State v. Thorpe, 290 Neb. 149,
858 N.W.2d 880 (2015)). Thus, in a postconviction proceeding, an evidentiary hearing is not
required (1) when the motion does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights; (2) when the motion alleges only conclusions
of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to
no relief. Id.
                             1. INEFFECTIVE ASSISTANCE OF COUNSEL
         When, as here, a defendant was represented both at trial and on direct appeal by the same
counsel, the defendant’s first opportunity to assert ineffective assistance of counsel is in a motion
for postconviction relief. State v. Henderson, supra. 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. Id. A court may address the two prongs
of this test, deficient performance and prejudice, in either order. Id.
         In order 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.
State v. Alford, 24 Neb. App. 213, 884 N.W.2d 470 (2016). 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. State v. Huston, 302 Neb. 202, 922 N.W.2d 723 (2019). Because we find that Campbell
did not establish actual prejudice in his motion for postconviction relief, we need not address
whether his counsel’s performance was deficient. We will address each of the claims of
ineffectiveness raised by Campbell in turn.
                     (a) Failure to Argue Motions for New Trial or Withdraw
       Campbell asserts that trial counsel failed to argue his pro se motions for new trial, or
otherwise withdraw as counsel so that Campbell had the opportunity to argue the motions on his
own. Campbell argues that “continuing as counsel of record and prosecuting the appeal in this case
wherein the appropriate issues were not briefed and argued to the court” caused him prejudice.




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Brief for appellant at 28-29. However, Campbell fails to identify any of the issues raised in those
motions or how trial counsel’s failure to argue the motions at sentencing or withdraw would have
changed the district court’s decision to deny those motions. The record indicates that the district
court reviewed Campbell’s pro se motions for new trial and nevertheless made the decision to deny
the motions. We find that Campbell has not shown prejudice by trial counsel’s actions and this
argument is without merit.
       (b) Continuing to Represent Campbell Through Appeal Despite His Dissatisfaction
        Campbell asserts that trial counsel was deficient by “ignor[ing] the obvious dissatisfaction
that his client had with him” and continuing to represent Campbell through the appeal of his case.
Brief for appellant at 29. However, Campbell again has failed to provide any showing as to how
the result of the appeal would have been different had his counsel withdrawn. In his postconviction
motion, Campbell merely argues that continuing to represent him on appeal “further damaged the
case” but fails to indicate what damage was done. Campbell has failed to show prejudice and his
argument is without merit.
             (c) Failure to Properly Investigate and Challenge Production of Firearm
        Campbell argues that trial counsel was deficient for failing to investigate and challenge the
production of the firearm that was discovered several months after the incident. Specifically,
Campbell argues that trial counsel should have conducted depositions regarding the discovery of
the weapon, particularly the homeowner who found it. However, Campbell fails to provide any
indication of what new or conflicting evidence would have been revealed had those depositions
occurred. Campbell merely states in his postconviction motion that challenging the State’s physical
evidence, the firearm, “would have changed the outcome [of] the trial drasticly [sic].”
        In State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018), the defendant argued that his
trial counsel was ineffective for failing to hire a crime scene investigator to rebut inconsistencies
in the testimony of one of the State’s witnesses. Similarly, Campbell argues that the weapon’s
“miraculous appearance” should have been investigated further and depositions taken to devalue
the use of the gun as evidence. Brief for appellant at 29. “A petitioner’s postconviction claims that
his or her defense counsel was ineffective in failing to investigate possible defenses are too
speculative to warrant relief if the petitioner fails to allege what exculpatory evidence the
investigation would have procured and how it would have affected the outcome of the case.” State
v. Newman, 300 Neb. at 792, 916 N.W.2d at 412 (citing State v. Edwards, 284 Neb. 382, 821
N.W.2d 680 (2012)). Campbell has not provided any indication of what further depositions
surrounding the weapon, or other additional investigation, would have revealed or how it would
have affected the outcome of the case. Campbell has not established prejudice and an evidentiary
hearing was not warranted on this claim.
               (d) Failure to Challenge and Properly Cross-Examine and Impeach
                               State’s Witness Marissa McCormack
       Campbell next argues that trial counsel was deficient for failing to challenge and
adequately cross-examine and impeach the State’s key witness, Marissa McCormack, the driver




                                                -5-
of the vehicle involved in the incident. Campbell primarily argues that McCormack has a “history
of mental illness and drug abuse” and that trial counsel should have “use[d] this to the advantage
of [Campbell].” Brief for appellant at 30. Despite pointing out the fact that McCormack made three
statements to police, and that they were inconsistent with one another, Campbell fails to allege
what testimony his counsel would have elicited had he further cross-examined McCormack. See
State v. Newman, 300 Neb. at 783, 916 N.W.2d at 407 (defendant’s “allegation of failure to
cross-examine a witness on a minor credibility issue is not sufficient to demonstrate either deficient
performance or resulting prejudice”).
        As with the production of the weapon as evidence, Campbell asserts, in conclusory fashion,
that proper cross-examination would have drastically changed the outcome of the case. There is
no indication as to how trial counsel could have changed the outcome of Campbell’s trial through
cross-examination of McCormack, and Campbell has failed to establish prejudice on this claim.
                        (e) Failure to Seek Independent Testing of Firearm
         Campbell asserts that trial counsel was deficient for failing to seek independent testing of
the firearm after it was discovered several months after the incident. While counsel in his brief
suggests that independent testing of the firearm could have revealed “the possibility of other
fingerprints” or otherwise casted doubt on the fact that the firearm was the same one used to fire
at the troopers, there is nothing in the record, nor in Campbell’s postconviction motion, to support
such arguments. Brief for appellant at 31. A petitioner’s postconviction claims that his or her
defense counsel was ineffective in failing to investigate possible defenses are too speculative to
warrant relief if the petitioner fails to allege what exculpatory evidence the investigation would
have procured and how it would have affected the outcome of the case. State v. Newman, 300 Neb.
770, 916 N.W.2d 393 (2018). Again, Campbell states that further investigation would have
changed the outcome of the case, but fails to articulate how. Such conclusory statements are not
sufficient to warrant an evidentiary hearing.
                              (f) Failure to Depose Christian Sipherd
         Campbell next argues that trial counsel was deficient in failing to depose and present a
lineup to the State’s witness, Christian Sipherd, who was performing snow removal at Rockbrook
Village, an area being searched by police, the night of the incident. Campbell argues that Sipherd’s
testimony that he saw someone on the night of the incident, near the neighborhood Campbell was
later arrested and the firearm discovered, “would have been rendered virtually useless” as he would
have been unable to identify Campbell. Brief for appellant at 32. However, we find that Campbell
has not shown a reasonable likelihood that absent this alleged deficiency, the outcome at trial
would have been different.
         The State’s evidence included McCormack’s testimony identifying Campbell as the
passenger in her vehicle who fired the shots, physical DNA evidence tying Campbell to items left
in McCormack’s car, and the fact that the firearm was discovered in the neighborhood Campbell
was found by police hiding in a vehicle the night of the incident, and was determined to be the
same gun used to fire at the State Patrol troopers. Furthermore, Sipherd’s testimony admitted that
he could not identify Campbell as the person he saw that night with certainty. In light of all the




                                                -6-
remaining evidence, which we considered on direct appeal, we find Campbell has not established
prejudice.
                       (g) Failure to Challenge Competency of McCormack
         We have already discussed, in subsection (1)(d) of the analysis section in this opinion, the
alleged deficiencies in trial counsel’s approach to cross-examination and impeachment of the
State’s witness, McCormack. In similar fashion, Campbell alleges that an evaluation of
McCormack’s competency would have shown her testimony to be unreliable. However, Campbell
fails to show how a competency evaluation would have affected the outcome of the trial. Evidence
was introduced that McCormack used methamphetamine frequently, including the day of the
incident, and would not take her prescribed medication when using the drug, which caused her to
be unstable. On appeal, we likewise considered this evidence in Campbell’s challenge to the
sufficiency of the evidence. Nevertheless, we found there to be sufficient evidence and affirmed
Campbell’s convictions on all seven charges. Similarly, we find that the mere allegation that trial
counsel failed to challenge the competency of McCormack did not establish prejudice and
Campbell’s claim did not warrant an evidentiary hearing.
                      (h) Failure to Object to Testimony Regarding Campbell’s
                                Possession of Same or Similar Shotgun
         In his postconviction motion, Campbell asserts that his trial counsel was deficient for
failing to object, as improper character evidence under Neb. Rev. Stat. § 27-404 (Reissue 2016),
to testimony by two of the State’s witnesses that they had previously seen Campbell in possession
of a firearm. Campbell claims this evidence was irrelevant because his DNA or fingerprints were
never found on the weapon later recovered and identified as used during the shooting. However,
in his brief, Campbell’s counsel on this appeal argues that Campbell’s trial counsel was deficient
for failing to challenge testimony regarding Campbell’s prior drug use through a motion in limine.
We decline to address this issue.
         Absent plain error, when an issue is raised for the first time in an appellate court, it will be
disregarded inasmuch as the trial court cannot commit error regarding an issue never presented
and submitted to it for disposition. State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017). Because
the issue regarding Campbell’s prior drug use was not raised in his postconviction motion, the
district court could not have committed error in denying an evidentiary hearing on the alleged
deficiency of trial counsel for failing to raise the issue through a motion in limine.
         In regard to the issue raised in Campbell’s postconviction motion, we find that Campbell
has failed to sufficiently establish prejudice. There is no indication how exclusion of the testimony
at issue would have affected the result of Campbell’s trial, or even that such an objection would
have been successful. Section 27-404 permits evidence of prior acts for purposes such as “motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” At
trial, the primary issue was whether Campbell was the shooter. Surely testimony regarding
Campbell’s possession of a shotgun, particularly one that compares to the one identified as used
in the shooting, is relevant to issues such as the shooter’s identity. Therefore, we find that Campbell
has not established prejudice and an evidentiary hearing was not required.




                                                  -7-
                  (i) Failure to Challenge Discussion Between Two Witnesses in
                    Close Proximity to One of Jurors as Violating Sequestration
                               Order and Denying Campbell Fair Trial
       This issue was alleged as a separate ground for relief in Campbell’s pro se motion for
postconviction relief and is discussed in detail in subsection (2) of the background section in this
opinion.
                      (j) Failure to Challenge Jury Instructions as Incomplete
       This issue was alleged as a separate ground for relief in Campbell’s pro se motion for
postconviction relief and is discussed in detail in subsection (3) of the background section in this
opinion.
                  (k) Failure to Seek Independent Evaluation of DNA Evidence
        Campbell next argues that trial counsel was deficient for failing to hire an independent
expert to analyze and evaluate the DNA evidence found on a toothbrush in McCormack’s vehicle.
Standing alone, this allegation is insufficient to warrant an evidentiary hearing. We find persuasive
the district court’s comparison to State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015). In Sellers,
the petitioner claimed his trial counsel was ineffective for failing to hire an independent
investigator, consult a ballistics expert, review the crime scene, etc. The Nebraska Supreme Court
found that such allegations were insufficient to warrant an evidentiary hearing, as they did not
establish prejudice.
                However, [the petitioner] failed to allege how undertaking the above activities
        would have produced a different outcome at trial. More specifically, he did not identify
        any exculpatory evidence that the activities would have procured. As the district court
        observed, his allegations consisted solely of conclusory statements, such as, “‘[I]f trial
        and/or appellate counsel would have investigated and hired an investigator to fully
        investigate the case at bar, there surely would have been a different outcome in [his] trial.’”
                Such conclusory allegations are insufficient to establish the prejudice prong of the
        Strickland test. We have previously observed that a petitioner’s postconviction claims that
        his or her trial counsel was ineffective in failing to investigate possible defenses are too
        speculative to warrant relief if the petitioner fails to allege what exculpatory evidence that
        the investigation would have procured and how it would have affected the outcome of the
        case. And in assessing postconviction claims that trial counsel was ineffective in failing to
        call a particular witness, we have upheld dismissal without an evidentiary hearing where
        the motion did not include specific allegations regarding the testimony which the witness
        would have given if called.

Id. at 27-29, 858 N.W.2d at 587.
        Here, Campbell again fails to allege prejudice with any sort of particularity. While
Campbell alleges that his trial counsel should have hired an expert to testify regarding match
probabilities surrounding the DNA evidence acquired from items in McCormack’s vehicle, he fails
to identify a specific witness that should have been called, or what they would have testified to.



                                                 -8-
Similar to Sellers, this allegation does not sufficiently allege what exculpatory evidence would
have been elicited through expert testimony and how it would have affected the outcome of the
trial, and was insufficient to warrant an evidentiary hearing.
                      (l) Failure to Have Gunshot Residue Testing Processed
        Campbell asserts trial counsel was deficient for failing to request processing of the gunshot
residue (GSR) testing that was done on Campbell the night of the incident. It is Campbell’s
contention that the results of the GSR testing would “prove the innocence of [Campbell]” and
“show that there was reasonable doubt as to having fired a weapon on that evening.” Brief for
appellant at 36. However, we find that any deficiency in failing to process the GSR testing does
not create a reasonable probability that the result of Campbell’s trial would have been different.
By its very nature, gunshot residue is susceptible to being shaken or washed off with ease.
Therefore, its absence alone does little to establish an individual did not recently fire a weapon.
        At trial, State Trooper Anthony Sattlefield testified that testing of GSR kits is available
upon request by the prosecution or defense based on factors that determine “whether or not it adds
value to the investigation[.]” In this case, one factor in determining the value of GSR testing was
the fact Campbell had been walking around snowy areas for up to an hour. Based on the other
evidence introduced at trial, and the minimal value GSR testing would have added to this case, we
find that trial counsel’s failure to seek processing of the GSR testing was not sufficient to
undermine confidence in the outcome of Campbell’s trial. Therefore, Campbell has not established
prejudice and an evidentiary hearing was not required.
                                   (m) Failure to Sequester Jury
         Finally, Campbell alleges that his trial counsel was deficient for failing to sequester the
jury in light of a highly publicized officer-involved shooting that resulted in the death of an Omaha
police officer. Campbell alleges the proximity in time of the officer’s death to his trial “shed
unfavorable light” on him to the jury. Despite the contention that Campbell “would have chosen
to have the jury sequestered, but counsel failed to give him the choice” there is no indication how
sequestration of the jury would have changed the outcome of the trial. Brief for appellant at 36.
Therefore, Campbell’s claim is without merit and an evidentiary hearing was not required.
                                       2. JUROR MISCONDUCT
        Campbell’s next assignment of error is that the district court improperly denied his motion
for postconviction relief on the basis of juror misconduct without first holding an evidentiary
hearing. Campbell argues that the claim asserted in his postconviction motion was incorrectly
construed by the district court as a direct challenge to alleged juror misconduct, rather than a claim
of ineffective assistance of counsel for failure to preserve the issue and raise the misconduct on
direct appeal.
        Even if we assume that Campbell properly asserted this claim as alleging ineffective
assistance of counsel, we find that it is without merit. Whether a criminal defendant is claiming
juror misconduct, or ineffective assistance of counsel, he or she must establish prejudice under
either theory. See State v. Harrison, 264 Neb. 727, 651 N.W.2d 571 (2002). As previously




                                                -9-
mentioned, to establish prejudice under an ineffective assistance of counsel claim, a defendant
must demonstrate a reasonable probability that but for counsel’s deficient performance, the result
of the proceeding would have been different. State v. Alford, 24 Neb. App. 213, 884 N.W.2d 470
(2016). A reasonable probability is such that is sufficient to undermine confidence in the outcome.
State v. Huston, 302 Neb. 202, 922 N.W.2d 723 (2019). However, because we find that the records
and files affirmatively show that Campbell was not entitled to relief based on the alleged juror
misconduct, any purported deficiency by trial counsel was not prejudicial, and therefore an
evidentiary hearing was not required.
         A criminal defendant claiming jury misconduct bears the burden of proving, by a
preponderance of the evidence, (1) the existence of jury misconduct and (2) that such misconduct
was prejudicial to the extent that the defendant was denied a fair trial. State v. McSwine, 24 Neb.
App. 453, 890 N.W.2d 518 (2017). In this case, Campbell alleges that he was denied a fair trial
when two of the State’s witnesses were observed by defense counsel discussing the case in the
hallway during a recess near one of the jury members. After the incident at issue took place,
Campbell’s attorney immediately notified the trial judge of what he had observed. Campbell’s
attorney was outside the courtroom when he noticed two of the State’s witnesses, who had not yet
testified, talking about Campbell’s arrest. One of the witnesses, State Trooper Trinity Jones,
indicated that he was prepared to fire his weapon under the circumstances. One of the jurors was
standing nearby as the conversation took place.
         Campbell’s attorney indicated that he immediately intervened and informed Jones that he
was not permitted to discuss the case. Campbell’s attorney informed the court that the conversation
took place “in direct earshot of [the juror]” and that the witnesses were within five feet of the juror.
The trial judge then proceeded to call in the juror and asked whether she had heard anyone
discussing the case during the recess. The juror indicated that she had not. Because we find that
the record indicates the juror was not influenced by any outside discussion of the case by the State’s
witnesses, Campbell has not shown he was prejudiced by trial counsel’s failure to preserve and
raise the issue on appeal. This claim is without merit and it was not in error for the district court to
deny an evidentiary hearing.
                                  3. IMPROPER JURY INSTRUCTIONS
        Campbell’s final assignment of error is that the district court improperly denied his motion
for postconviction relief on the basis of improper jury instructions without first holding an
evidentiary hearing. Campbell argues that the claim asserted in his postconviction motion was
incorrectly construed by the district court as a direct challenge to an error in the jury instructions
given at trial, rather than a claim of ineffective assistance of counsel for failure to preserve the
issue and raise the purported error on direct appeal.
        A motion for postconviction relief cannot be used to secure review of issues which were
or could have been litigated on direct appeal, no matter how those issues may be phrased or
rephrased. State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015). On direct appeal of Campbell’s
convictions, the only issues raised were the sufficiency of the evidence and whether the sentences
were excessive. See State v. Campbell, No. A-16-176, 2016 WL 6872979 (Neb. App. Nov. 22,
2016) (selected for posting to court website). Aside from the fact that the propriety of the jury



                                                 - 10 -
instructions was not raised on direct appeal, the trial record indicates that no objection was made
to any of the jury instructions at trial. Failure to object to a jury instruction after it has been
submitted to counsel for review precludes raising an objection on appeal absent plain error
indicative of a probable miscarriage of justice. State v. Watt, 285 Neb. 647, 832 N.W.2d 459
(2013). Therefore, if Campbell’s postconviction claim is construed as a direct challenge to the jury
instructions given at trial, it is procedurally barred and the district court did not err in denying the
claim without an evidentiary hearing.
        Even if we assume, without deciding, that Campbell’s claim was appropriately raised as an
ineffective assistance of counsel claim, the district court did not err in denying the claim without
an evidentiary hearing. As previously mentioned, an evidentiary hearing is not required “when the
records and files affirmatively show that the defendant is entitled to no relief.” State v. Barber, 26
Neb. App. 339, 345, 918 N.W.2d 359, 366 (2018).
        In his postconviction motion, Campbell asserts “instructions #10 and 4” removed an
essential element from the jury on the charge of Discharging a Firearm While in or in Proximity
of any Motor Vehicle at any Person or Occupied Motor Vehicle. However, the record shows
instruction No. 4 dealt with the presumption of innocence and instruction No. 10 dealt with the
definition of evidence. In his brief, counsel for Campbell refers to instruction Nos. 2 and No. 5,
which we note cover the substantive matter addressed in Campbell’s postconviction motion.
Instruction No. 2 reads, in pertinent part:
                In Count 6 of the Amended Information the Defendant is charged with Discharging
        a Firearm While in or in Proximity of any Motor Vehicle at any Person, Occupied Motor
        Vehicle. The State alleges in substance that:
                On or about February 5, 2015, in Douglas County, Nebraska, Daniel J. Campbell
        did then and there being a person, within the territorial boundaries of any city of the first
        class or county containing a city of the metropolitan class or primary class, unlawfully,
        knowingly, and intentionally discharged a firearm, while in any motor vehicle at or in the
        general direction of any person or occupied motor vehicle.

Instruction No. 5 reads, in pertinent part:
                The material elements which the State must prove by evidence beyond a reasonable
        doubt in order to convict the Defendant of the crime of Discharging a Firearm While in or
        in Proximity of any Motor Vehicle at any Person or Occupied Motor Vehicle, as charged
        in Count 6 of the Amended Information are:
                1. That on or about February 5, 2015, in Douglas County, Nebraska, the Defendant
        Daniel J. Campbell, did then and there being a person, within the territorial boundaries of
        any city of the first class or county containing a city of the metropolitan class, unlawfully,
        knowingly, and intentionally discharge a firearm, while in any motor vehicle or in the
        proximity of any motor vehicle that such person has just exited, at or in the general
        direction of any person or occupied motor vehicle as defined in section 71-4603.
                2. That the Defendant did so intentionally.




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Campbell argues that both instruction No. 2 and instruction No. 5 are incomplete statements of the
relevant statute, Neb. Rev. Stat. § 28-1212.04 (Reissue 2016), as both omit the term “recklessly”
from their language. Section 28-1212.04 reads as follows:
                Any person, within the territorial boundaries of any city of the first class or county
       containing a city of the metropolitan class or primary class, who unlawfully, knowingly,
       and intentionally or recklessly discharges a firearm, while in any motor vehicle or in the
       proximity of any motor vehicle that such person has just exited, at or in the general
       direction of any person, dwelling, building, structure, occupied motor vehicle, occupied
       aircraft, inhabited motor home as defined in section 71-4603, or inhabited camper unit as
       defined in section 60-1801, is guilty of a Class IC felony.

Campbell asserts that the omission of the term “recklessly” from both jury instructions had the
effect of removing an essential issue or element of the case from the jury and resulted in confusion
to the jury and an incorrect verdict. We disagree.
        The mens rea component of § 28-1212.04 requires that the State prove a defendant act
“unlawfully, knowingly, and intentionally or recklessly . . .” (emphasis supplied). Therefore, the
State must only prove beyond a reasonable doubt that the defendant act intentionally or recklessly,
not both. It is clear from instruction No. 5, part 2, and the evidence adduced at trial, that the State
was attempting to prove Campbell intentionally committed the crime. Proving intent is a higher
burden than proving recklessness, and there was nothing misleading to the jury about omitting the
word “recklessly” from the jury instructions. Because the jury found that the State proved
Campbell acted intentionally beyond a reasonable doubt, and we affirmed the sufficiency of the
evidence on direct appeal, Campbell’s claim is refuted by the record and without merit. The district
court, therefore, was not required to hold an evidentiary hearing.
                                        VI. CONCLUSION
       For the foregoing reasons, we affirm the order of the district court denying Campbell’s
motion for postconviction relief without an evidentiary hearing.
                                                                                           AFFIRMED.




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