                           IN THE NEBRASKA COURT OF APPEALS

                MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                         (Memorandum Web Opinion)

                                          STATE V. GRUTELL


  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.

                                   LOUIS R. GRUTELL, APPELLANT.


                                Filed July 30, 2019.    No. A-18-352.


        Appeal from the District Court for Stanton County: MARK A. JOHNSON, Judge. Affirmed.
        Nathan S. Lab, of McGough Law P.C., L.L.O., for appellant.
       Douglas J. Peterson, Attorney General, Nathan A. Liss, and, on briefs, Joe Meyer for
appellee.


        MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
        MOORE, Chief Judge.
                                         I. INTRODUCTION
        Louis R. Grutell appeals his conviction in the district court for Stanton County for driving
under the influence of alcohol, fourth offense, with a concentration of more than .15 of 1 gram of
alcohol per 210 liters of breath. Grutell assigns that the district court erred in holding that the State
did not have to prove that Grutell’s operation of a motor vehicle while intoxicated occurred on a
public roadway or private property open to public access; providing jury instructions that were an
incorrect statement of the law; and imposing an excessive sentence. Grutell also assigns, through
different appellate counsel, that he received ineffective assistance from his trial counsel. Finding
no error, we affirm.




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                                       II. BACKGROUND
         On February 17, 2017, Stanton County Sheriff’s Deputy Pascal Vantilborgh was patrolling
Highway 24 when he saw headlights coming from Crown Road, a gravel road that intersected the
highway. Upon further inspection, he noticed the headlights were coming from a vehicle stranded
in a ditch beside that gravel road. Vantilborgh approached the vehicle, which was rocking in the
ditch. The vehicle’s engine was running, and a man, whom he later identified as Grutell, sat in the
driver’s seat. Vantilborgh observed tire tracks on the gravel road that appeared to back into a
driveway and then back on the road leading directly to the vehicle in the ditch. Because the vehicle
was stuck, Vantilborgh believed it probably could not be driven out of the ditch. The vehicle was
eventually towed out of the ditch.
         Concerned the vehicle had been involved in an accident, Vantilborgh approached Grutell.
Grutell staggered and swayed as he walked out of the ditch, and he smelled strongly of alcohol.
His speech was slurred, and his eyes were glossy and bloodshot. When Vantilborgh asked Grutell
what happened, Grutell responded that “it was manageable.” Vantilborgh did not know what
Grutell meant by this response, and he suspected that Grutell was under the influence of alcohol.
Grutell eventually explained that he had come from a bar and was on his way to visit his ex-wife
at a different bar, where she worked as a bartender. Vantilborgh asked whether Grutell had
consumed any alcoholic beverages, and Grutell replied that he had a few drinks at home and a
couple more at the bar. Grutell then stated that he had not been driving, but that he came by to
check on the vehicle in the ditch. He did not mention who had driven him there. There were no
other vehicles in the area, and the vehicle in the ditch was registered to Grutell.
         Vantilborgh administered three field sobriety tests on Grutell: the horizontal eye nystagmus
test, the nine-step walk-and-turn, and the one-leg stand. During the nine-step walk, Grutell asked
to remove his cowboy boots and socks because he thought they were preventing him from
completing the test. Grutell could not complete the tests and showed signs of impairment. Based
on Grutell’s impairment and his operation of the vehicle while it was stranded in the ditch,
Vantilborgh arrested Grutell for driving under the influence. Grutell’s vehicle had to be towed out
of the ditch. He transported Grutell to a Norfolk police station to test his breath. The breath test
showed the concentration of alcohol in Grutell’s breath was .176 of 1 gram per 210 liters of breath.
         Citing Neb. Rev. Stat. §§ 60-6,196(1)(c) (Reissue 2010), 60-6,197.02(1)(a)(i)(A) (Cum.
Supp. 2016), and 60-197.03(8) (Cum. Supp. 2016), the State filed an information charging Grutell
with driving under the influence, fourth offense, with a concentration of more than .15 of 1 gram
of alcohol per 210 liters of breath, a class IIA felony. The information did not allege that Grutell
was operating on a public roadway or private property open to public access.
                                              1. TRIAL
        Trial was held on January 25, 2018. During her opening statement, Grutell’s trial counsel
generally outlined the defense theory that Grutell had not operated a motor vehicle on a public
road or highway while under the influence before driving into the ditch. Rather, she stated that
Grutell first consumed alcohol while stuck in the ditch and that he could not operate the vehicle
after consuming alcohol. The prosecutor objected and argued that the State did not have to show
Grutell was on a public road or highway according to the charge contained in the information. The



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district court initially overruled the objection, but later, after the jury was excused for a recess, the
court stated to counsel:
         The Court has had an opportunity to look up a couple of things. I believe the State is correct,
         I don’t believe the State is under any obligation to show this was an operation on the
         highway. . . .
                 ....
                 . . . [I]f the defendant argues that this was required to be on a street or highway,
         then upon objection, the Court will instruct the jury that it is not required.
                 ....
                 . . . The elements do not include a street or highway.

        Vantilborgh testified as summarized above. Frederick Wiebelhaus, a deputy of the Stanton
County Sheriff; James Heller, a Norfolk police officer and breath test technician; and Bryan
Harms, a passenger in Vantilborgh’s police car, also testified for the State. Kristi Choutka-Dykstra,
Grutell’s ex-wife, and Grutell testified for the defense. The court also received a video recording
of the stop that did not contain audio.
        Wiebelhaus testified that he arrived at the scene while Vantilborgh performed the field
sobriety tests. He took an inventory of the vehicle. He found no alcoholic beverage containers
inside the vehicle. He did not check the vehicle’s locked compartments, including its trunk.
        Heller testified that the breath test device was functioning properly when Grutell was
tested. Harms, a member of the county’s emergency management system, was riding along with
Vantiborgh to observe how law enforcement operates. He observed Grutell’s vehicle in the ditch
on a gravel road near Highway 24, along which is a rodeo arena and a veterinarian’s house. Harms
observed Grutell staggering as he attempted to stand up.
        Choutka-Dykstra testified that she stopped by Grutell’s house to drop off a trailer on the
night he was arrested. Grutell did not appear to be drinking at that time. Because she was late for
work, she did not stay with Grutell long.
        Grutell testified that he purchased a bottle of rum at a liquor store after work on the day he
was arrested. He then went home to wait for his ex-wife to deliver her trailer to him. At the time
she arrived, he had not had any alcohol. Because he did not have a chance to speak with
Choutka-Dykstra about the trailer when she delivered it, he headed to the place of her employment.
He did not bring his cellphone because he thought the trip would be quick. He missed the turn that
would have taken him to the bar where Choutka-Dykstra worked. When he attempted to turn
around, his vehicle became stuck in the ditch. At the time he became stranded in the ditch, he had
not had anything to drink.
        According to Grutell, it was approximately sundown when he got stuck in the ditch, and
Vantilborgh arrived a couple hours later. By this time Grutell had consumed half of the bottle of
rum that he bought earlier that day. He discarded the half-filled bottle 15 to 20 feet from his vehicle.
When Vantilborgh pulled up, Grutell was sitting in his vehicle with the engine running to keep
warm. Grutell denied telling Vantilborgh that he was traveling between bars or that he had
consumed alcoholic beverages at home.




                                                  -3-
                                      2. CLOSING ARGUMENTS
        After the close of evidence, the parties’ delivered their closing arguments. During the
State’s closing, the prosecutor made the following comments:
                Now part of Instruction No. 6 is what are the material elements we have to prove?
        We do not have to prove that the defendant operated a motor vehicle on a public highway.
        What does that mean? That means you could be found guilty of this offense if you’re under
        the influence in a Walmart parking lot because it’s open to the public. So therefore, you
        can find the defendant guilty if he’s in control of a motor vehicle or operating in a road
        ditch, or you could find the defendant guilty if he’s operating on the road, but it doesn’t
        have to be on the road or a public highway. You don’t have to find that.

        No objections were made to these comments by Grutell’s counsel. During his counsel’s
closing argument, she focused on whether Grutell was in actual physical control of the vehicle.
She stated:
        It’s true that you can be in the ditch, you can be there with a vehicle, and you can be charged
        with a DUI and be guilty. But it’s also true that you can be in the ditch, you can be under
        the influence of alcohol, and if you did it at the time when that car is not movable anymore,
        that is not a DUI.

During rebuttal, the prosecutor responded:
       [I]t doesn’t matter if [Grutell] sat there in the ditch drinking his [rum], even if that’s true,
       because when the officers pulled up, he’s behind the wheel with the engine running, the
       lights are on, and according to them, the car is rocking back and forth.


                                       3. JURY INSTRUCTIONS
        The district court gave instructions to the jury. Instruction No. 6 provided, in relevant part,
as follows:
                The material elements which the State must prove by evidence beyond a reasonable
        doubt in order to convict Defendant Louis R. Grutell of the crime of Driving Under the
        Influence -- alcohol concentration of .15 or greater are:
                1. On or about February 17, 2017, in Stanton County, Nebraska, the Defendant,
        Louis R. Grutell, operated or was in actual physical control of a motor vehicle; and
                2. That at that time and place the Defendant was under the influence of alcoholic
        liquor, and was under the influence of alcoholic liquor [sic]; and
                3. The Defendant did so with a concentration of fifteen hundredths of one gram or
        more by weight of alcohol per two hundred ten liters of his breath.

There was no instruction requested or given concerning Neb. Rev. Stat. § 60-6,108(1) (Reissue
2010), which provides that the driving under the influence statutes only apply to the operation or
actual physical possession of a motor vehicle on public property or private property open to public
access. Both parties agreed at trial that the jury instructions were appropriate.



                                                 -4-
                                  4. CONVICTION AND SENTENCE
        The jury convicted Grutell of the charge in the State’s information. The court sentenced
Grutell to imprisonment for an indeterminate term of not less than 18 months nor more than 36
months. The court revoked his driver’s license for 15 years and ordered him not to drive for the
same period. The court ordered that Grutell would be eligible for an ignition interlock permit 45
days after his release from incarceration.
        Grutell appeals.
                                 III. ASSIGNMENTS OF ERROR
        Grutell assigns, restated and reordered, that the district court erred in (1) holding that the
State had no obligation to show that Grutell’s operation of a motor vehicle while intoxicated
occurred on a public roadway or private property open to public access under § 60-6,108, (2)
providing jury instructions that were an incorrect statement of the law, and (3) imposing an
excessive sentence. Grutell also assigns, through different appellate counsel, that he received
ineffective assistance from his trial counsel.
                                  IV. STANDARD OF REVIEW
         Plain error may be found on appeal when an error unasserted or uncomplained of at trial,
but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial
process. State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018).
         Whether jury instructions are correct is a question of law, which an appellate court resolves
independently of the lower court’s decision. State v. Mueller, 301 Neb. 778, 920 N.W.2d 424
(2018).
         An appellate court reviews criminal sentences for abuse of discretion, which occurs when
a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is
clearly against justice or conscience, reason, and evidence. State v. Collins, 292 Neb. 602, 873
N.W.2d 657 (2016).
         Whether a claim of ineffective assistance of trial counsel can be determined on direct
appeal presents a question of law, which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a
statute or constitutional requirement. An appellate court determines as a matter of law whether the
record conclusively shows that (1) a defense counsel’s performance was deficient or (2) a
defendant was or was not prejudiced by a defense counsel’s alleged deficient performance. State
v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).
                                          V. ANALYSIS
                           1. DETERMINATION OF PUBLIC PROPERTY OR
                           PRIVATE PROPERTY OPEN TO PUBLIC ACCESS
       Grutell assigns that the district erred by holding the State did not have to prove that Grutell
had been operating his vehicle on a public roadway or private property open to public access under




                                                -5-
§ 60-6,108(1). Grutell argues, alternatively, that the district court should have either determined
as a matter of law whether § 60-6,108(1) had been satisfied or submitted the issue to the jury.
       Grutell was charged under § 60-6,196(1), which prohibits driving under the influence of
alcohol or drugs as follows:
       It shall be unlawful for any person to operate or be in the actual physical control of any
       motor vehicle:
                (a) While under the influence of alcoholic liquor or of any drug;
                (b) When such person has a concentration of eight-hundredths of one gram or more
       by weight of alcohol per one hundred milliliters of his or her blood; or
                (c) When such person has a concentration of eight-hundredths of one gram or more
       by weight of alcohol per two hundred ten liters of his or her breath.

Nebraska’s driving under the influence statutes apply upon highways and anywhere throughout
the state except on private property that is not open to public access. § 60-6,108(1). Grutell
acknowledges that his counsel did not further object to the court’s ruling or assert in the motion
for directed verdict the failure of the State to prove Grutell was operating a motor vehicle on public
property or private property open to public access. Nevertheless, Grutell asserts that the district
court’s failure to address the requirement of § 60-6,108(1) amounted to plain error. He further
argues that the ditch where his vehicle was stuck was private property not open to public access.
         The Nebraska appellate courts have considered the question of whether various locations
are considered public property or private property open to public access in driving under the
influence cases.
         In State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014), the Nebraska Supreme Court
considered whether a concrete drive between the street and sidewalk in front of an apartment
complex satisfied the requirement of § 60-6,108(1). On appeal, the defendant challenged the
sufficiency of the evidence to prove that he was operating a motor vehicle on a roadway or other
area to which the public had access. In affirming the conviction, the Supreme Court noted that
whether the vehicle was situated on property open to the public was a question of fact. The Court
also stated that a private property is “open to public access” if the public has permission or the
ability to enter it. Because the officer had testified at trial that the area where the defendant operated
his vehicle was a public right-of-way that was open to both pedestrian and vehicular traffic, the
Court concluded that there was sufficient evidence for a rational trier of fact to determine that the
location was open to the public.
         So too in State v. Prater, 268 Neb. 655, 686 N.W.2d 896 (2004), the Supreme Court
addressed the question of whether an apartment complex parking lot satisfied the requirement of
§ 60-6,108(1). The record showed that no gates or fences surrounded the apartment complex lot,
although a sign posted near the lot informed the public that it was private and that unauthorized
vehicles would be towed. Guests of apartment residents and maintenance persons were permitted
to park in the lot. Because vehicles had the ability to enter the apartment complex lot, the Supreme
Court found the lot was open to public access.
         In State v. Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998), the defendant admittedly was
driving his motorcycle on a rural county road when he lost control and became “high-centered” in



                                                  -6-
the ditch. The defendant was found in the ditch by law enforcement approximately 15 to 20
minutes later, showing signs of intoxication. The Supreme Court rejected the defendant’s argument
that the evidence was insufficient to show that he was operating his motorcycle on a public road
or private road open to public access. The Court concluded that there was sufficient evidence to
conclude the defendant had driven the motorcycle on the county road while intoxicated. In
reaching this conclusion, the court noted that there was no evidence in the record of other people,
liquor, or liquor containers in the area where the defendant was located or other evidence to support
the inference that the defendant had the means or opportunity to ingest alcohol after he lost control
of his motorcycle.
        On the other hand, in State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011), the Supreme
Court determined, as a matter of law, that a residential driveway was not private property open to
public access. The Court discussed the interplay between § 60-6,108 and § 60-6,196 and stated:
“When [these sections] are read consistently, they show that the Legislature intended to prohibit
intoxicated persons from operating or being in control of a vehicle even on private property if other
motorists might access that property and be endangered by their conduct.”
        Contrary to Grutell’s argument, the district court did not commit plain error in failing to
address the requirements of § 60-6,108(1). During opening statements, the court ruled that the
State was not required to show that Grutell’s operation of his vehicle while intoxicated occurred
on a “street or highway.” The court did not preclude Grutell from challenging whether the ditch
where he was found was public property or private property open to public access.
        Grutell did not at any point during the trial challenge whether the ditch in which he was
found was public property or private property open to public access, and there is no evidence in
the record to support Grutell’s argument that the ditch was private property not open to public
access. Moreover, we note that in the cases discussed above regarding § 60-6,108(1), the issue of
whether the defendant was operating on public property or private property open to public access
was brought before the court either by a pretrial motion or the introduction of evidence concerning
the status of the location. See, State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014); State v.
McCave, 282 Neb. 500, 805 N.W.2d 290 (2011); State v. Prater, 268 Neb. 655, 686 N.W.2d 896
(2004); State v. Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).
        Grutell’s theory at trial was limited to the argument that he only consumed alcohol after
his vehicle became stranded in the roadside ditch. Under this theory, Grutell asserted that he could
not have operated the vehicle or have been in actual physical control of it because it was
immovable. The jury clearly rejected this position. At no time did Grutell challenge the status of
the ditch, and thus, the court did not err in failing to address it.
                                       2. JURY INSTRUCTIONS
        Grutell assigns that the district court erred in providing jury instructions that were an
incorrect statement of the law. The State correctly notes that Grutell asserted this claim for the first
time on appeal. The 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. State v. Hinrichsen, 292 Neb.
611, 877 N.W.2d 211 (2016). When a party assigns as error the failure to give an unrequested jury
instruction, an appellate court only reviews for plain error. State v. Mann, 302 Neb. 804, 925



                                                 -7-
N.W.2d 324 (2019). Plain error may be found on appeal when an error unasserted or uncomplained
of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right
and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial
process. Id. As discussed below, we do not find plain error in the jury instructions.
                                      (a) Jury Instruction No. 6
        Grutell argues that the district court committed plain error by providing the jury with
instruction No. 6. In relevant part, jury instruction No. 6 read as follows:
                The material elements which the State must prove by evidence beyond a reasonable
        doubt in order to convict Defendant Louis R. Grutell of the crime of Driving Under the
        Influence -- alcohol concentration of .15 or greater are:
                1. On or about February 17, 2017, in Stanton County, Nebraska, the Defendant,
        Louis R. Grutell, operated or was in actual physical control of a motor vehicle; and
                2. That at that time and place the Defendant was under the influence of alcoholic
        liquor, and was under the influence of alcoholic liquor [sic]; and
                3. The Defendant did so with a concentration of fifteen hundredths of one gram or
        more by weight of alcohol per two hundred ten liters of his breath.

Grutell argues that repeating the phrase “was under the influence of alcoholic liquor” in element
two coupled with the language in element three confused the jury. Specifically, he argues that it
failed to “clearly convey that the operation or actual physical control of the motor vehicle [must]
occur simultaneously with [his] being under the influence of alcoholic liquor.” Brief for appellant
at 15. We disagree.
        In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant. State v. Mann, supra. Jury instructions are not prejudicial if they, when taken
as a whole, correctly state the law, are not misleading, and adequately cover the issues supported
by the pleadings and the evidence. Id. In a criminal trial, the court in its instructions must delineate
for the jury each material element the State is required to prove beyond a reasonable doubt to
convict the defendant of the crime charged. Id.
        Although jury instruction No. 6 contained a typographical error in the repetition of the
phrase “under the influence of alcoholic liquor,” the error was harmless at best. See id. (actual
guilty verdict rendered surely unattributable to error). Instruction No. 6 clearly instructed the jury
it had to find that Grutell was operating or in physical control of a motor vehicle on February 1,
2017, in Stanton County, Nebraska, while under the influence of alcoholic liquor. The instruction
was not misleading as argued by Grutell. The instruction set forth the elements required under
Neb. Rev. Stat. § 60-6,196(1) (Reissue 2010). We find no prejudicial error in instruction No. 6.
                    (b) Separate Instruction for Requirements of § 60-6,108(1)
        Grutell also argues that the court should have included a separate jury instruction
explaining that the State was required to prove that he operated a motor vehicle on a public road
or private property open to public access. He argues that the State’s closing “suggested that even




                                                 -8-
if the jury believed [his] testimony, he was guilty of driving under the influence because being in
control of the vehicle while it was in the ditch was all that was needed for a guilty verdict.” Brief
for appellant at 17. Grutell claims that without a separate instruction explaining the requirements
of § 60-6,108(1), the instructions omitted a material element of the offense, effectively vitiating
the jury’s findings and depriving him of a proper verdict.
         Grutell did not request an instruction regarding § 60-6,108(1), thus we review this claim
for plain error. State v. Mann, supra. It is the duty of a trial judge to instruct the jury on the pertinent
law of the case, whether requested to do so or not, and an instruction or instructions which by the
omission of certain elements have the effect of withdrawing from the jury an essential issue or
element in the case are prejudicially erroneous. Id.
         We note that the requirements of § 60-6,108(1) are not an essential element of driving
under the influence under § 60-6,196(1). See State v. Armagost, 291 Neb. 117, 120, 864 N.W.2d
417, 421 (2015) (“[i]n giving instructions to the jury, it is proper for the court to describe the
offense in the language of the statute”). Moreover, an instruction on § 60-6,108(1) was not
warranted because no evidence was adduced at trial regarding the status of the location where
Grutell was found to be operating or in control of his vehicle. Further, Grutell did not raise the
issue of whether § 60-6,108(1) applied under these circumstances. We therefore find no prejudicial
error in the court’s failure to include a jury instruction regarding the applicability of § 60-6,108(1).
                                        3. EXCESSIVE SENTENCE
        Grutell next assigns that the district court erred in imposing an excessive sentence for his
conviction.
        Driving under the influence, 0.15 or more, fourth offense, is a Class IIA felony. Neb. Rev.
Stat. § 60-6,197.03(8) (Supp. 2018). A Class IIA felony is punishable by a maximum of 20 years
in prison and has no minimum sentence. Neb. Rev. Stat. § 28-105 (Supp. 2018). Grutell’s sentence
was well within the statutory limits. 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. Tucker, 301 Neb. 856, 920 N.W.2d
680 (2018). When imposing a sentence, a sentencing judge should consider 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 violence involved in the commission of the crime. State v.
Spang, 302 Neb. 285, 923 N.W.2d 59 (2019). 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. State v. Garcia,
302 Neb. 406, 923 N.W.2d 725 (2019).
        After reviewing the record and the presentence investigation report, we cannot say the
sentence was an abuse of discretion. Grutell was 58 years old at the time of sentencing. He had a
high school education and stable employment. He had three prior convictions for driving under
the influence, the most recent of which occurred only 3 years before the events underlying this
appeal. He had been sentenced to one term of probation and two terms of county incarceration for



                                                   -9-
these convictions. Grutell scored in the moderate to high risk range for substance abuse on the
Simple Screening Instrument. He scored in the maximum risk range on the stress coping scale as
well as in the problem risk range for the truthfulness and alcohol scales on the Nebraska Driver
Risk Inventory. Overall, Grutell’s risk/need profile on the Level of Service/Case Management
Inventory noted a medium high risk level for recidivism. Grutell continued to drink alcohol after
this citation and had no plan to address his continued substance abuse.
         It is clear that the district court took the appropriate factors into consideration in sentencing
Grutell. We find no abuse of discretion in the sentence imposed.
                              4. INEFFECTIVE ASSISTANCE OF COUNSEL
         Grutell also assigns that he received ineffective assistance from his trial counsel. Grutell is
represented on direct appeal by different counsel than the counsel who represented him at trial.
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; otherwise, the issue will be procedurally barred. State
v. Howard, 26 Neb. App. 628, 921 N.W.2d 869 (2018).
         An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges
deficient performance with enough particularity for (1) an appellate court to make a determination
of whether the claim can be decided upon the trial record and (2) a district court later reviewing a
petition for postconviction relief will recognize whether the claim was brought before the appellate
court. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
         The fact that an ineffective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. State v. Lamberson, 26 Neb. App. 642, 921 N.W.2d 879
(2018). Such a claim may be resolved when the record on direct appeal is sufficient to either
affirmatively prove or rebut the merits of the claim. Id. The record is sufficient if it establishes
either that trial counsel’s performance was not deficient, that the appellant will not be able to
establish prejudice, or that trial counsel’s actions could not be justified as a part of any plausible
trial strategy. Id.
         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. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019). To show deficient
performance, 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. Wells, 300 Neb. 296, 912 N.W.2d 896
(2018). 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. A
reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The
two prongs of this test may be addressed in either order, and the entire ineffectiveness analysis
should be viewed with a strong presumption that counsel’s actions were reasonable. State v.
Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018).




                                                  - 10 -
        Grutell argues that his trial counsel was ineffective for failing to object to the improper jury
instructions. As we noted above, there was no prejudicial error in the jury instructions given, and
as a result, his counsel was not ineffective for failing to object to them.
        Grutell also asserts that his counsel was ineffective for failing to argue during his motion
for a directed verdict that the State did not show he operated a motor vehicle on a public roadway
or private property open to public access. We disagree. There was sufficient evidence in the record
to convict Grutell for driving under the influence on the gravel road while under the influence of
alcohol. The tire marks on the gravel road support the conclusion that Grutell had been operating
his vehicle on the gravel road before entering the ditch. Vantilborgh testified that Grutell advised
him that he had consumed a few alcoholic beverages at home and a couple more at a local bar
before he ended up in the ditch. There was no evidence in the record of the presence of liquor or
liquor containers in the area where Grutell was located or other evidence to support his claim that
he only ingested alcohol after he entered the ditch.
        Because Grutell cannot show a reasonable probability that the outcome of his trial would
have been different, he has failed to establish that he was prejudiced by his counsel’s failure to
raise the issue regarding the applicability of § 60-6,108(1). Thus, we reject Grutell’s ineffective
assistance of counsel claim.
                                         VI. CONCLUSION
        Because Grutell did not raise the issue of whether the ditch where he was found met the
requirements of § 60-6,108(1), the district court did not err in failing to address it. The court did
not commit plain error in its jury instructions, and Grutell’s sentence was not excessive. Grutell’s
trial counsel was not ineffective because the evidence supports the conclusion that Grutell was
operating his vehicle while intoxicated on the road before he entered the ditch.
                                                                                          AFFIRMED.




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