State v. Clark

1

315 Neb. 736

State of Nebraska, appellee, v. Angelina M. Clark, appellant.

No. S-22-865

Supreme Court of Nebraska

January 19, 2024

1. Convictions: Evidence: Appeal and Error. 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, and 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.

2. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of counsel may be determined on direct appeal is a question of law.

3. __ __. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance.

4. Juror Qualifications: Waiver. A party who fails to challenge the jurors for disqualification and passes the jurors for cause waives any objection to their selection.

5. Criminal Law: Intent. The crime proscribed by Neb. Rev. Stat. § 28-311.01 (Reissue 2016) does not require an intent to execute the threats made; rather, it requires the intent to terrorize another as a result of the threats or a reckless disregard of the risk of causing such terror.

6. Criminal Law: Evidence: Intent. The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.

7. Effectiveness of Counsel: Proof: Appeal and Error. 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.

8. Effectiveness of Counsel: Proof. To show that counsel's performance was deficient, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

9. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice in a claim of ineffective assistance of counsel, 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.

10. Constitutional Law: Criminal Law: Jury Trials. The Sixth Amendment secures to criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross-section of the community.

11. Equal Protection: Jurors: Discrimination. The Equal Protection Clause of the 14th Amendment forbids prosecutors from using peremptory challenges to strike potential jurors solely on account of their gender.

12. Hearsay: Words and Phrases. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

13. Hearsay. An out-of-court statement is not hearsay if the proponent offers it for a purpose other than proving the truth of the matter asserted.

14. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

15. Pretrial Procedure: Pleadings: Evidence: Juries: Appeal and Error. A motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury. It is not the office of a motion in limine to obtain a final ruling upon the ultimate admissibility of the evidence. Therefore, when a court overrules a motion in limine to exclude particular evidence, the movant must object when the particular evidence is offered at trial in order to predicate error before an appellate court.

Appeal from the District Court for Lancaster County: Darla S. Ideus, Judge.

Candice C. Wooster, of Brennan, Nielsen, & Wooster Law Offices, P.C., for appellant.

Michael T. Hilgers, Attorney General, and Teryn Blessin for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Funke J.

I. INTRODUCTION

This is a direct appeal of convictions in the district court for Lancaster County, Nebraska, for terroristic threats and third degree sexual assault. The appellant argues that her trial before an all-male jury violated her constitutional rights to a fair trial and an impartial jury. The appellant also argues that the evidence was insufficient to support her conviction for terroristic threats and that her trial counsel was ineffective in multiple regards. Finding no error, we affirm.

II. BACKGROUND

Early on the morning of January 14, 2020, Angelina M. Clark entered the apartment where Shauna Parker and Parker's 15-year-old son, A.L., resided. Clark knew Parker and A.L. and had visited their apartment previously. By her own admission, Clark was "heavily intoxicated" when she entered the apartment and during the events described below.^[1]

Parker testified that when Clark saw her, Clark asked, "'[D]o you know anything[?]'" Parker replied, "'[N]o I don't.'" Parker explained that she understood Clark to be asking if she "knew anything about having any drugs." However, Parker acknowledged that Clark did not "use the word drugs." Parker explained that she had just understood Clark's inquiry that way.

Parker testified that after Clark had been in the apartment for several minutes, Parker offered her a ride to "get her out of [the] house." Parker drove a pickup truck. A.L., who accompanied Parker and Clark, sat farthest right on the passenger side. Clark was situated between Parker and A.L.

A.L. testified that during the drive, Clark placed her hand on his "upper thigh" near his torso three to five times, "groping up towards [his] penis." According to A.L., the last time Clark did so, she touched "[his] private areas over [his] pants" and then "slightly squeezed" before moving her hand back to his thigh.

According to Parker, A.L. leaned away from Clark with a "horrible look on his face." A.L.'s expression prompted Parker to ask the reason for his discomfort. A.L. initially declined to answer until they dropped Clark off. However, Parker persisted in her questions, and A.L. eventually disclosed that Clark "ma[de] him uncomfortable" and that he did not "'like [Clark] touching [him].'" Parker and Clark then began to argue about A.L.

Parker decided that Clark's ride was at an end and pulled into the parking lot of a convenience store so Clark could get out of the truck. Parker testified that as she pulled in, she observed Clark's hand on A.L.'s "inner thigh."

Parker demanded that Clark get out of the truck. Clark initially refused, so Parker told A.L. to get out of the truck. Parker testified that after exiting the vehicle and before going into the convenience store, A.L. "c[a]me around the truck and . . . said I feel violated mom. He said, 'she touched my dick.'" A.L. testified similarly that he came around the truck and told Parker that he "felt very uncomfortable and . . . needed . . . Clark to leave." That was when Parker, by her own admission, "lost [her] temper."

When Clark subsequently got out of the truck and began calling A.L.'s name, Parker "intervene[d]" to keep Clark from following A.L. into the store. Parker acknowledged that she initiated a "physical confrontation" with Clark by pushing or slapping her.

According to Parker, during that confrontation, Clark got back in the truck and "start[ed] rummaging through [it].

Threatening thing[s] - like you know, like she's going to have her daughter and . . . her friends beat me up. Like everybody was going to beat me up, you know. I was done. And . . . she's going to have my ass beat or whatever." Parker testified that Clark then grabbed what the parties variously describe as a box cutter or utility knife from the truck's glove compartment and "was like bitch I'm going to kill you."

A.L. observed the confrontation through the front door of the convenience store. He saw Clark "swinging [the box cutter] around at [Parker]." However, he was unable to hear what Clark and Parker were saying.

Law enforcement was called. Clark left the scene before officers arrived but was apprehended nearby. Clark was subsequently charged with terroristic threats under Neb. Rev. Stat. § 28-311.01 (Reissue 2016) and third degree sexual assault under Neb. Rev. Stat. § 28-320(1)(a) (Reissue 2016). She pled not guilty, and the matter proceeded to a jury trial.

Jury selection occurred on October 11, 2022. The record does not indicate how many prospective jurors were summoned. It shows only that 27 prospective jurors were "randomly selected" to be seated up front. Other prospective jurors were present. At least eight prospective jurors were female, based on the titles used to refer to them during voir dire. However, everyone ultimately selected to serve on the jury was male.

The jury found Clark guilty of both counts. She was sentenced to consecutive terms of 1 year's imprisonment, with 9 months' post-release supervision, for the terroristic threats conviction and 6 months' imprisonment for the sexual assault conviction.

Clark appeals, and we moved...