                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                          STATE V. SPIEHS


  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.

                                  ANDREW A. SPIEHS, APPELLANT.


                               Filed April 14, 2020.   No. A-19-797.


        Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge, on appeal
thereto from the County Court for Lancaster County: MATTHEW L. ACTON, Judge. Judgment of
District Court affirmed.
       Joe Nigro, Lancaster County Public Defender, and Megan Kielty for appellant.
       Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.


       PIRTLE, BISHOP, and ARTERBURN, Judges.
       PIRTLE, Judge.
                                         INTRODUCTION
        Andrew A. Spiehs appeals his conviction and sentence in the county court for Lancaster
County, which was affirmed by the district court for Lancaster County. Spiehs was convicted of
theft of lost or mislaid property and sentenced to 3 months’ jail time. We affirm.
                                         BACKGROUND
        On October 2, 2018, Spiehs was charged with theft of lost or mislaid property pursuant to
Neb. Rev. Stat. § 28-514 (Reissue 2016), a Class III misdemeanor. The complaint alleged that on
November 13, 2017, Spiehs did come into control of property of another that he knew to have been
lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity
of the recipient and with intent to deprive the owner thereof, he failed to take reasonable measures



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to restore the property to a person entitled to have it. Spiehs was arraigned on October 4, 2018,
and he entered a plea of not guilty. The Lancaster County Public Defender’s office was appointed
to represent him during that same hearing, but it is unclear whether counsel actually appeared with
Spiehs when he entered his not guilty plea at the arraignment.
         On October 5, 2018, the public defender declared a “conflict of interest” and a local
attorney was appointed to represent Spiehs on October 9. At a docket call held on October 31, after
meeting his client for the first time, substitute counsel made a request for a jury trial, both orally
and in writing. The request for a jury trial was denied since it was made out of time. The court
advised counsel the demand should have been made on or before October 19.
         A bench trial was held on March 6, 2019, in the county court for Lancaster County. The
evidence established that Marcus Kee used a self-checkout register at the south Lincoln Walmart
at noon on November 13, 2017. After completing his transaction Kee dropped his wallet on the
floor in the checkout lane and, without realizing his loss, departed the store and returned to his
home. Upon arriving home Kee realized his wallet was missing so he checked his bank computer
records to see if any of his debit or credit cards had been used to make any purchases without his
knowledge or consent. Kee discovered one of his bank cards had been used twice at a department
store north of the Walmart between the time he left the Walmart and his arrival at his home. Kee
called the Lincoln Police to report the unauthorized use of one of his bank cards.
         Officer Jonathan Dickman was dispatched to Kee’s home to take a statement. Kee reported
his wallet contained his driver’s license, his social security card, bank debit card, and several credit
cards. Kee said all the debit and credit cards had his name and account numbers stamped on them
and the driver’s license included his address. Dickman then went to the Walmart and contacted the
loss prevention department. Dickman was able to secure surveillance video using the time stamp
from Kee’s receipt which clearly showed Kee’s wallet on the floor and Kee departing the store
without realizing he had left the wallet behind.
         The surveillance video went on to show another customer spotting the wallet on the floor
and after retrieving it, handing the wallet to a passing Walmart employee. The Walmart employee
intended to deliver the wallet to the manager in the self-checkout area of the store but Spiehs
reached out to the employee and gestured indicating the wallet belonged to him. The videotape
shows the employee handing the wallet to Spiehs without opening it or confirming that the driver’s
license identified Spiehs. The videotape shows Spiehs putting the wallet into his pocket. Dickman
then proceeded to the department store where the credit card was used in order to try to identify
who used the card.
         The department store gave Dickman videotape showing two teenaged females making the
unauthorized purchases. One of the females was identified as Olivia Gordon. Dickman was able
to go back in time on the Walmart surveillance videotape to locate Gordon and Spiehs together in
the Walmart. Dickman had reached a dead end in his efforts to identify Spiehs so he posted an
image from the Walmart videotape to “Crime Stoppers,” a “public forum” where citizens are asked
to call the police if they are able to identify the actors in the images.
         On June 1, 2018, Detective Sergeant John Walsh received a Crime Stoppers tip from
Spiehs’ parole officer who identified Spiehs on the basis of his visible tattoos. Walsh compared
the Crime Stoppers photos with jail and booking photos on the Nebraska Criminal Justice
Information System and concluded the tattoos on his hands and the left side of his neck were


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similar to the Crime Stoppers photos. Walsh then contacted Spiehs at his home on September 7,
2018.
         Walsh testified Spiehs initially claimed he gave the wallet to the Walmart employee. Walsh
testified he advised Spiehs that was not true because the videotape showed the employee giving
the wallet to Spiehs. Walsh testified Spiehs then claimed to have been high on methamphetamine
at the time and he “thought the wallet was his so he took it.” Walsh testified Spiehs told him that
at some point Spiehs realized the wallet was not his so he gave the wallet to Gordon.
         The county court found the State had met its burden of proof and entered a verdict of guilty.
Sentencing was held on March 27, 2019, and Spiehs was sentenced to 3 months in the Lancaster
County jail. Spiehs appealed his conviction and sentence to the district court for Lancaster County.
         Spiehs’ lawyer and the county attorney appeared at a hearing before the district court for
the purpose of establishing a briefing schedule. Spiehs’ lawyer put the court on notice that he
intended to raise two issues in his appeal. First, that there was insufficient evidence to sustain the
conviction, and second, that the county court erred in denying his request for a jury trial. After
reviewing the evidence presented to the county court the district court issued an order concluding
any rational trier of fact would have found the State met its burden of proof on every element of
the crime charged, beyond a reasonable doubt, and that it is abundantly clear that Spiehs is guilty
as charged. The district court specifically noted that Spiehs had abandoned and withdrawn his
other assigned error related to the county court’s denial of his request for a jury trial. Spiehs gave
timely notice of his appeal from the district court’s order to this court. The briefs, if any, submitted
to the district court, are not a part of this record.
                                    ASSIGNMENTS OF ERROR
        In this direct appeal, Spiehs assigns two errors. First, that the district court erred in finding
sufficient evidence to support his conviction, and second, that Spiehs was denied his right to
effective assistance of counsel.
                                     STANDARD OF REVIEW
         In reviewing a criminal conviction for 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. State
v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
         To prevail on a claim of ineffective assistance of counsel, the appellant must show that
counsel’s performance was deficient, and that this deficient performance actually prejudiced his
or her defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
         A counsel’s performance is deficient when the counsel’s performance does not equal that
of a lawyer with ordinary training and skill in the area. State v. McDermott, 267 Neb. 761, 677
N.W.2d 156 (2004). 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. Id.


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       Where appellate counsel is different from trial counsel, a defendant must raise on direct
appeal any issue of ineffective assistance of trial counsel which is known to the defendant or is
apparent from the record. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
                                             ANALYSIS
                                     SUFFICIENCY OF EVIDENCE
       Spiehs was charged with violation of § 28-514(1) which provides:
       A person who comes into control of property of another that he or she knows to have been
       lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the
       identity of the recipient commits theft if, with intent to deprive the owner thereof, he or she
       fails to take reasonable measures to restore the property to a person entitled to have it.

         The Walmart employee testified she received the wallet from a customer who found it on
the floor in the checkout lane. The employee testified she intended to deliver the wallet to the
manager of the self-checkout department but Spiehs reached out to her and said, “Oh, that’s mine.”
Walsh testified when he interviewed Spiehs, Spiehs acknowledged taking control of the wallet as
the Walmart employee handed it to him. Both Walsh and Dickman testified the surveillance
videotape clearly shows Spiehs receiving the wallet from the Walmart employee and putting it in
his pocket. Walsh testified Spiehs told him when he discovered the wallet was not his, he gave it
to Gordon.
         Spiehs argues there is insufficient evidence to conclude that he knew the wallet was lost or
mislaid when he took control of it. But at the time he realized it was not his wallet, he gave it to
Gordon instead of making efforts to return it to Walmart or to the rightful owner. The intent
involved in an actor’s conduct is a mental process and may be inferred from the conduct itself, the
actor’s language in reference to the conduct, and the circumstances surrounding an incident. State
v. Beyer, 260 Neb. 670, 619 N.W.2d 213 (2000) (sufficient evidence to support conviction of
§ 28-514(1) when defendant sold a telephone found on the street contradicting claim she believed
property to be inoperable and abandoned). Whether or not Spiehs knew the wallet was lost or
mislaid was a question for the county court as the trier of fact, and the county court rejected Spiehs’
claim. And the district court correctly affirmed the judgment since it does not reweigh the
evidence, pass on the credibility of witnesses or settle disputes of fact. After viewing the evidence
in the light most favorable to the prosecution, we agree with the district court that any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt. State v.
Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
                               INEFFECTIVE ASSISTANCE OF COUNSEL
        When a defendant’s trial counsel is different from his or her counsel on direct appeal, as is
the case here, 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. See State v. Sinkey,
303 Neb. 345, 929 N.W.2d 35 (2019). Otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. Id.
        In his second assignment of error Spiehs assigns “appellant was denied his right to effective
assistance of counsel under the sixth amendment to the United States Constitution and Article 1,


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Sec. 11 of the Nebraska State Constitution.” Brief for appellant at 9. We believe Spiehs’
generalized claim of ineffective assistance of counsel fails to properly specify deficiencies in his
trial lawyer’s performance and, as a result, his claim is not properly before us for appellate review.
The Nebraska Supreme Court explained in State v. Mrza, 302 Neb. 931, 935, 926 N.W.2d 79, 86
(2019):
         [W]hen raising an ineffective assistance claim on direct appeal, an appellant must make
         specific allegations of the conduct that he or she claims constitutes deficient performance
         by trial counsel. And we have long held that an alleged error must be both specifically
         assigned and specifically argued in the brief of the party asserting the error to be considered
         by the appellate court. It follows that we should not have to scour the argument section of
         an appellant’s brief to extract specific allegations of deficient performance.

        The specific claims of deficient performance were first noted in Spiehs’ discussion section
rather than the assignments of error section of his brief. Therefore, we find that Spiehs has not
properly assigned his ineffective assistance of trial counsel claim, and we do not consider its merits
on this appeal.
                                           CONCLUSION
        We affirm the district court’s order that there was sufficient evidence to convict Spiehs of
theft of lost or mislaid property. We also find that Spiehs has not sufficiently assigned as error his
claim of ineffective assistance of trial counsel.
                                                                                          AFFIRMED.




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