           Decisions      of the   Nebraska Court of Appeals
	                                STATE v. COBOS	887
	                             Cite as 22 Neb. App. 887

otherwise proved. Thus, while the district court erred in con-
cluding that inverse condemnation required an actual physical
taking, it did not err in finding that there were no genuine
issues of material fact, dismissing 6224 Fontenelle’s motion
for summary judgment, and granting MUD’s motion for sum-
mary judgment.

                         CONCLUSION
   In conclusion, we find that summary judgment in this case
is proper, although for reasons different from those of the dis-
trict court. We find that contrary to the district court’s findings,
an actual physical taking or physical damage is not required
in order to receive just compensation in an inverse condemna-
tion action. However, we find that a diminution in property
value alone is not a taking or damaging of the property, but,
instead, is a measure of just compensation when such taking
or damaging is otherwise proved. 6224 Fontenelle has failed
to show that MUD engaged in a taking or damaging as a mat-
ter of law, and there exist no genuine issues of material fact.
As such, we affirm the order of the district court dismissing
6224 Fontenelle’s motion for summary judgment and granting
MUD’s motion for summary judgment.
                                                        Affirmed.



                     State of Nebraska, appellee, v.
                    Richard R. Cobos, Jr., appellant.
                                   ___ N.W.2d ___

                         Filed May 5, 2015.    No. A-14-505.

 1.	 Jury Instructions: Proof: Appeal and Error. To establish reversible error from
     a court’s refusal to give a requested instruction, an appellant has the burden to
     show that (1) the tendered instruction is a correct statement of the law, (2) the
     tendered instruction is warranted by the evidence, and (3) the appellant was
     prejudiced by the court’s refusal to give the tendered instruction.
 2.	 Criminal Law: Evidence: Proof. In order to justify an alibi instruction, there
     must be evidence that the defendant was at some other place during the commis-
     sion of the crime for a length of time that it was impossible for him to have been
   Decisions of the Nebraska Court of Appeals
888	22 NEBRASKA APPELLATE REPORTS


       at the place where the crime was committed, either before or after the time he
       was at such other place.
 3.	   Jury Instructions: Convictions: Appeal and Error. Before an error in the giv-
       ing of instructions can be considered as a ground for reversal of a conviction, the
       error must be considered prejudicial to the rights of the defendant.
 4.	   Jury Instructions: Appeal and Error. In reviewing a claim of prejudice from
       jury instructions given or refused, an appellate court must read the instructions
       together, and if, taken as a whole, they correctly state the law, are not misleading,
       and adequately cover the issues supported by the pleadings and evidence, there is
       no prejudicial error.
 5.	   Jury Instructions. In construing an individual jury instruction, the instruction
       may not be judged in artificial isolation but must be viewed in the context of the
       overall charge to the jury considered as a whole.
 6.	   Sentences: Evidence. A sentencing court has broad discretion as to the source
       and type of evidence or information that it may use in determining the kind and
       extent of the punishment imposed within the limits fixed by statute.
 7.	   Sentences: Probation and Parole. When attempting to determine whether the
       defendant is a proper candidate for probation and rehabilitation, the court, of
       necessity, must consider whether the defendant acknowledges his or her guilt.
 8.	   Criminal Law: Motions for New Trial: Appeal and Error. In a criminal
       case, a motion for new trial is addressed to the discretion of the trial court, and
       unless an abuse of discretion is shown, the trial court’s determination will not
       be disturbed.
 9.	   Records: Appeal and Error. Where allegedly prejudicial remarks of counsel do
       not appear in the bill of exceptions, an appellate court is precluded from consider-
       ing an assigned error concerning such remarks.
10.	   Criminal Law: Evidence: Appeal and Error. In reviewing a 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 witnesses, or reweigh the evidence; such
       matters are for the finder of fact. 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.

  Appeal from the District Court for Scotts Bluff County: Leo
Dobrovolny, Judge. Affirmed.

   Bell Island, of Island & Huff, P.C., L.L.O., for appellant.
  Jon Bruning, Attorney General, and George R. Love for
appellee.

   Irwin, Riedmann, and Bishop, Judges.
         Decisions   of the  Nebraska Court of Appeals
	                          STATE v. COBOS	889
	                       Cite as 22 Neb. App. 887

    Riedmann, Judge.
                       INTRODUCTION
   Richard R. Cobos, Jr., appeals from his conviction and
sentence in the district court for Scotts Bluff County of third
degree sexual assault of a child. Finding no merit to Cobos’
assigned errors, we affirm.

                        BACKGROUND
   Cobos was charged with third degree sexual assault of a
child based on reports that he had subjected his sister-in-law,
M.M., to sexual contact. At trial, M.M. testified that the assault
occurred while she and her twin sister were staying with their
older sister, Valerie Cobos (Valerie), and her husband, Cobos,
in Gering, Nebraska, during August 2012. M.M. was approxi-
mately 12 years old at that time, while Cobos was approxi-
mately 36 years old.
   At the time of the assault, Cobos had recently become
employed as a teacher and football coach in Mitchell, Nebraska,
which was approximately 12 miles from his home in Gering.
Although school had not yet started, Cobos had football prac-
tice at 7 a.m. each day, and he had to be there at least an hour
early to get things ready. In addition, since this was Cobos’
first year at a new school, he had been going even earlier to
prepare his classroom for the beginning of the school year.
Valerie testified that it was not unusual for Cobos to get up
in the middle of the night to go to work and that once he
left the house, he would not come home until the end of the
school day.
   On the morning of the assault, Cobos left the house at
approximately 2 a.m. M.M. and her twin sister were still up
talking in the living room when he left. Cobos told them to
let Valerie know that he was going to school to work in his
classroom. The girls fell asleep on the couch in the living room
around 4 a.m.
   M.M. testified that she woke up later that morning to
Cobos’ touching her breasts underneath her bra. She knew
it was early morning because she looked out the window
above the couch and saw the sun starting to rise. According
   Decisions of the Nebraska Court of Appeals
890	22 NEBRASKA APPELLATE REPORTS



to M.M., she tried to go back to sleep, but Cobos continued
to touch her and tried to put his hand underneath her under-
wear. M.M. turned away and Cobos stopped, but then he put
his hands back underneath her bra. After touching her breasts
for a little while longer, Cobos kissed M.M. “directly on the
lips and said good morning,” then left the house. M.M. testi-
fied that she looked at the person touching her and saw that
it was Cobos.
   A jury instruction conference was held in the district court,
during which defense counsel requested an alibi instruction.
The court overruled the request, finding that the evidence did
not support such instruction. After the jury was instructed, the
case was submitted for deliberation. The jury found Cobos
guilty beyond a reasonable doubt of third degree sexual assault
of a child.
   Cobos subsequently filed a motion for new trial alleg-
ing, in part, that the prosecutor engaged in misconduct by
referring to Cobos as a “predator” during closing arguments.
Because the closing arguments were not recorded, defense
counsel offered an affidavit stating that during closing argu-
ments, the prosecutor referred to Cobos as a predator and
preying on those weaker than him; that such statement was
objected to by defense counsel on grounds of relevance and
facts not in evidence; and that such objection was overruled.
The State objected to the exhibit on the basis that it was not
the best evidence, and challenged the accuracy of statements
contained in the affidavit. The district court received the affi-
davit into evidence but ultimately overruled the motion for
new trial.
   The case then proceeded to sentencing. During the sentenc-
ing hearing, defense counsel objected to the court’s considering
statements in the presentence investigation report indicating
that Cobos declined to comment on the allegations. The dis-
trict court overruled the objection. Before imposing Cobos’
sentence, the district court indicated that it had reviewed the
presentence investigation report and considered the evidence
presented at trial, as well as Cobos’ age, his lack of a prior
criminal history, his education, the nature of the offense, the
         Decisions   of the  Nebraska Court of Appeals
	                          STATE v. COBOS	891
	                       Cite as 22 Neb. App. 887

lack of physical violence involved in the commission of the
offense, the harm caused to the victim, the lack of justification
for the offense, Cobos’ attitude, and the unlikelihood of recur-
rence. Regarding Cobos’ attitude, the court stated:
      I don’t have [Cobos’] written . . . version; however,
      there is an interview of [Cobos] that comes through in
      the pre-sentence investigation. I think [his] attitude . . .
      overall is good, but it doesn’t show, that I can see, an
      acceptance of responsibility for what the jury found were
      his acts and some sort of moving forward on what to do
      about that.
Finally, the court noted that although Cobos would likely be
successful in completing probation, it found that he was in
need of treatment, which could best be provided in a correc-
tional setting, and that a sentence other than imprisonment
would depreciate the seriousness of the crime and promote
disrespect for the law. It then imposed a sentence of 24 to 60
months’ imprisonment. This timely appeal followed.
                  ASSIGNMENTS OF ERROR
   Cobos assigns that the district court erred in (1) failing to
instruct the jury on Cobos’ alibi defense, (2) enhancing Cobos’
sentence based on his assertion of his constitutional right to
remain silent, (3) overruling Cobos’ motion for new trial based
on prosecutorial misconduct, and (4) finding sufficient evi-
dence to support the jury’s guilty verdict.
                          ANALYSIS
Refusal to Give Alibi Instruction.
   Cobos first assigns that the district court erred in failing to
instruct the jury on his alibi defense. Cobos argues that his
requested alibi instruction should have been given because
there was evidence showing that he was at work in another
town 12 miles away at the time of the assault.
   [1] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
   Decisions of the Nebraska Court of Appeals
892	22 NEBRASKA APPELLATE REPORTS



refusal to give the tendered instruction. State v. Planck, 289
Neb. 510, 856 N.W.2d 112 (2014). We find that although
Cobos’ proposed instruction was a correct statement of the law
and was warranted by the evidence, Cobos was not prejudiced
by the court’s refusal to give the requested instruction because
the jury was instructed that the State had the burden of proving
each and every element of the crime charged, which necessar-
ily required proof of Cobos’ presence at the time and place of
the crime charged.
   [2] In order to justify an alibi instruction, there must be
evidence that the defendant was at some other place during
the commission of the crime. See State v. El-Tabech, 225 Neb.
395, 405 N.W.2d 585 (1987). In addition, the evidence must
show that the defendant was at such other place a length of
time that it was impossible for him to have been at the place
where the crime was committed, either before or after the time
he was at such other place. See id.
   In State v. El-Tabech, supra, the trial court refused to give
an alibi instruction as requested by the defendant. On appeal,
the Nebraska Supreme Court affirmed, citing two reasons: (1)
In Nebraska, alibi is not an affirmative defense, and (2) the
evidence did not warrant such an instruction.
   As to the first reason, the El-Tabech court stated that an
alibi negates every fact necessary to prove a given crime
because a defendant could not commit the offense if he was
elsewhere at the time. The court noted the jury was instructed
that the State had the burden of proving each and every ele-
ment of the crime, including the fact that the accused commit-
ted the act as charged. The court therefore held that the failure
to instruct the jury on the alibi did not relieve the State of its
full burden.
   In the present case, the jury was instructed that Cobos was
charged with unlawfully subjecting M.M. to sexual contact in
August 2012 in Scotts Bluff County and was provided with the
respective ages of Cobos and M.M. The court further instructed
that the State had the burden of proving him guilty beyond a
reasonable doubt and that each of the following elements had
to be proved beyond a reasonable doubt:
        Decisions   of the  Nebraska Court of Appeals
	                         STATE v. COBOS	893
	                      Cite as 22 Neb. App. 887

         1. That [Cobos] subjected [M.M] to sexual contact; and
         2. That [Cobos] was nineteen years of age or older at
      the time; and
         3. That [M.M] was fourteen years of age or younger at
      the time; and
         4. That [Cobos] did so on or about the date or dates
      charged in Scotts Bluff County, Nebraska.
   Cobos’ proposed instruction stated: “An issue in this case is
whether [Cobos] was present at [a specific address in Gering]
between the hours of 4:00 a.m. and 6:00 a.m. on August 17,
2012 and/or August 18, 2012. The state must prove that he
was.” As such, the proposed instruction told the jury that the
State had to prove Cobos was present at the specific loca-
tion at the given time. But the instructions actually given
advised the jury that these were elements of the crime which
the State must prove beyond a reasonable doubt; therefore,
we find no prejudicial error in the court’s refusal to give the
alibi instruction.
   [3-5] Before an error in the giving of instructions can be
considered as a ground for reversal of a conviction, the error
must be considered prejudicial to the rights of the defendant.
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). In
reviewing a claim of prejudice from jury instructions given or
refused, an appellate court must read the instructions together,
and if, taken as a whole, they correctly state the law, are not
misleading, and adequately cover the issues supported by the
pleadings and evidence, there is no prejudicial error. State v.
Fox, 286 Neb. 956, 840 N.W.2d 479 (2013). In construing an
individual jury instruction, the instruction may not be judged
in artificial isolation but must be viewed in the context of the
overall charge to the jury considered as a whole. State v. Putz,
266 Neb. 37, 662 N.W.2d 606 (2003).
   The instructions given, as a whole, properly instructed the
jury as to the elements the State was required to prove beyond
a reasonable doubt. We therefore find no error in the court’s
refusal to give the tendered instruction.
   The second reason the Nebraska Supreme Court found no
error in failing to give the requested alibi instruction in State
   Decisions of the Nebraska Court of Appeals
894	22 NEBRASKA APPELLATE REPORTS



v. El-Tabech, 225 Neb. 395, 405 N.W.2d 585 (1987), was
because the evidence did not warrant the instruction. This
is the basis upon which the district court refused to give the
instruction in the present case. We disagree that the evidence
was insufficient.
   In State v. El-Tabech, supra, the defendant’s alibi covered
only a portion of the time during which the crime could
have been committed. Cobos, however, claimed that he left
Gering at 2 a.m. and was in Mitchell until late afternoon and
that therefore he could not have been in Gering at sunrise to
commit the crime charged. We find this evidence sufficient
to support an alibi instruction, but because of our conclusion
above that the jury was adequately instructed, we find no
prejudicial error in the trial court’s refusal to give a separate
alibi instruction.
   We recognize that the Nebraska pattern jury instructions
contain a pattern instruction on alibi, and our opinion should
not be construed to stand for the proposition that the failure
to give a requested alibi instruction can never be prejudicial
error. As stated by the Ninth Circuit Court of Appeals, failure
to give an alibi instruction in a state action can be a denial of
federal due process depending upon the evidence in the case
and the overall instructions given to the jury. See Duckett v.
Godinez, 67 F.3d 734 (9th Cir. 1995). But where, as here, the
jury is instructed on every element of the crime, and further
instructed that the defendant is presumed to be innocent until
the contrary is proved, which properly places the burden of
proving beyond a reasonable doubt every material element of
the crime charged upon the State, we find no error in the fail-
ure to give a separate alibi instruction.
Enhancement of Sentence Based
on Cobos’ Silence.
   Cobos next assigns that the district court erred by imposing
a more severe sentence due to Cobos’ assertion of his constitu-
tional right to remain silent by refusing to provide a statement
to the probation office in conjunction with the presentence
investigation. We disagree.
         Decisions   of the  Nebraska Court of Appeals
	                          STATE v. COBOS	895
	                       Cite as 22 Neb. App. 887

   There is no evidence that the district court increased the
severity of Cobos’ sentence based on his assertion of his right
to remain silent; rather, the court noted the absence of a writ-
ten statement from Cobos in conjunction with its discussion
of Cobos’ failure to accept responsibility for his actions. A
defend­ant’s failure to take responsibility for his actions is a
proper factor to consider in imposing a sentence. See State
v. Carngbe, 288 Neb. 347, 352, 847 N.W.2d 302, 307 (2014)
(noting that defendant’s actions postconviction were “not signs
of responsibility”). Before imposing Cobos’ sentence, the dis-
trict court stated various factors that it had considered, includ-
ing the information contained in the presentence investigation
report, Cobos’ age, his lack of a prior criminal history, his
education, the nature of the offense, the lack of physical vio-
lence in the commission of the offense, the harm caused to the
victim, the lack of justification for the offense, Cobos’ attitude,
and the unlikelihood of recidivism.
   [6,7] A sentencing court has broad discretion as to the
source and type of evidence or information that it may use in
determining the kind and extent of the punishment imposed
within the limits fixed by statute. State v. Alford, 6 Neb. App.
969, 578 N.W.2d 885 (1998). When attempting to determine
whether the defendant is a proper candidate for probation and
rehabilitation, the court, of necessity, must consider whether
the defendant acknowledges his or her guilt. State v. Winsley,
223 Neb. 788, 393 N.W.2d 723 (1986). Based on the record,
it appears that the district court considered Cobos’ failure to
accept responsibility as merely one of many factors in deter-
mining the appropriate sentence to impose. We find no abuse
of discretion in its having done so.
Motion for New Trial.
   [8] Cobos assigns that the district court erred in overruling
his motion for new trial on the basis of prosecutorial miscon-
duct. In a criminal case, a motion for new trial is addressed to
the discretion of the trial court, and unless an abuse of discre-
tion is shown, the trial court’s determination will not be dis-
turbed. State v. Tolbert, 288 Neb. 732, 851 N.W.2d 74 (2014).
   Decisions of the Nebraska Court of Appeals
896	22 NEBRASKA APPELLATE REPORTS



   [9] Cobos’ motion for new trial was based upon alleged
improper statements by the prosecutor during closing argu-
ments; however, the closing arguments were not transcribed
and thus are not part of the record before this court. It is the
law in Nebraska that, where allegedly prejudicial remarks
of counsel do not appear in the bill of exceptions, an appel-
late court is precluded from considering an assigned error
concerning such remarks. State v. Harris, 205 Neb. 844, 290
N.W.2d 645 (1980). Although Cobos’ assignment of error does
not directly challenge the remarks of the prosecutor, it chal-
lenges the court’s ruling on his motion for new trial, which
was based upon the remarks of the prosecutor. Absent a record
of the alleged prosecutorial misconduct, we cannot reach this
assigned error.
Sufficiency of Evidence.
   [10] Finally, Cobos assigns that the evidence was insuf-
ficient to convict him. Specifically, he argues that the State
failed to present evidence identifying Cobos; therefore, it
failed to prove an essential element of the crime. In reviewing
a 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 witnesses, or reweigh
the evidence; such matters are for the finder of fact. The rel-
evant question for an appellate court is whether, after view-
ing the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v.
Tolbert, supra.
   Because Cobos challenges only the sufficiency of the
in-court identification, we focus our discussion on that essen-
tial element as well.
   Despite Cobos’ assertion that M.M. never made an in-court
identification of the person who touched her, M.M. testified
that she saw the person that touched her and that it was her
sister Valerie’s husband, Cobos. Valerie made an in-court
identification of Cobos by pointing at him. Cobos challenges
the court reporter’s authority to make a notation in the record
        Decisions   of the  Nebraska Court of Appeals
	                         STATE v. COBOS	897
	                      Cite as 22 Neb. App. 887

that Valerie pointed at Cobos. We determine that under the
facts of this case, such identification was proper for two
reasons. First, it was sufficient identification for the State to
ask Valerie whether Cobos was in the courtroom and request
that she point him out. See State v. Kaba, 217 Neb. 81, 349
N.W.2d 627 (1984). Second, the identification of Cobos was
not litigated, and was only an implicit issue in this case.
See id.
   In State v. Kaba, supra, the court distinguished between
cases in which the defendant’s identity is an implicit issue and
cases in which identification is a hotly contested issue, such
as where a witness’ opportunity to observe the perpetrator is
challenged. The Kaba court determined that identification of
a defendant was an implicit issue because numerous witnesses
testified regarding their encounters with the defendant and
none of those witnesses noted that the person in the courtroom
was not the same person with whom they had had their encoun-
ters. As the Kaba court noted, it is inconceivable that the
State’s witnesses would sit silently by, knowing the wrong man
had been brought to trial. Likewise, we find it inconceivable
that neither M.M. nor Valerie would alert the court if someone
other than Cobos were brought to trial. Therefore, we reject
this assignment of error.
                     CONCLUSION
  For the foregoing reasons, we affirm Cobos’ conviction
and sentence.
                                             Affirmed.
