STATE OF NEBRASKA V. ARTHUR C. SIMPSON

Omaha, NE - Criminal defense lawyer represented defenda nt Arthur C. Simpson with appealing from his convictions in the district court for Douglas County for assault by strangulation, negligent child abuse, unlawful discharge of a firearm, and use of a deadly weapon (firearm) to commit a felony.

The charges in this case stem from events that occurred on April 15 and 16, 2017. On the

morning of April 16, law enforcement responded to a dispatch about “[s]hots fired” at a residence

in Omaha, Nebraska. Officers who responded spoke with individuals standing outside and

obtained a description of the parties involved, who had left the area. They also learned that a baby

in a carrier had been located outside the residence in question.

The baby’s mother, Christina Copeland, a resident at the address and one of the parties

involved, returned to the scene after being contacted by officers, and she provided them with a

summary of events. Copeland told officers that Simpson, who was her boyfriend and the baby’s

father, had repeatedly physically assaulted her throughout the morning, and that before he left the

area on foot, he had fired a gun at her while she was in a vehicle. After canvassing the area, the

officers did not locate Simpson, but they did find two bullet casings near the residence. Copeland

was interviewed further at the police station, where an officer took photographs documenting her

injuries.

The following day, police obtained an arrest warrant for Simpson, who turned himself in

at some point.

2. CHARGES AND PRETRIAL PROCEEDINGS

On June 8, 2017, the State filed an information, charging Simpson with assault by

strangulation in violation of Neb. Rev. Stat. § 28-310.01 (Reissue 2016), a Class IIIA felony; child

abuse in violation of Neb. Rev. Stat. § 28-707 (Reissue 2016), a Class IIIA felony; unlawful

discharge of a firearm in violation of Neb. Rev. Stat. § 28-1212.02 (Reissue 2016), a Class ID

felony; and use of a deadly weapon (firearm) to commit a felony in violation of Neb. Rev. Stat.

§ 28-1205 (Reissue 2016), a Class IC felony. Assault by strangulation was incorrectly identified

in the information as being a Class IV felony. The information stated that these violations occurred

“[o]n or about 16 April 2017.” Subsequently, Simpson filed a “Written Arraignment,” waiving his

right to physically appear for arraignment in district court and asking the court to enter a plea of

“Not Guilty” on his behalf, which the court did.

On July 9, 2018, Simpson filed a pro se motion to suppress “all insufficient evidence,

fabricated evidence, false reports, inadmissible hearsay, and all bias or prejudice by the State”

based on his assertions that the Omaha Police Department (1) lacked sufficient proof that he

discharged a firearm, (2) did not have a reasonable belief supported by specific facts that he was

armed or had access to a firearm, (3) did not have a reasonable belief supported by specific facts

that Copeland was strangled or assaulted by Simpson, and (4) did not have sufficient evidence or

a reasonable belief supported by specific facts that Simpson was present at the time of the crime.

A hearing on Simpson’s motion was held on September 26, 2018, and continued to

November 27 for further evidence. Simpson was represented by counsel at the suppression hearing.

At the start of the first hearing date, his attorney expressed his understanding of the issues raised

in Simpson’s motion as being a challenge to the probable cause for Simpson’s arrest and a

challenge to “some portion of the identification.” The hearing proceeded based on that

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understanding of the issues raised in Simpson’s motion. Simpson’s pro se motion did not clearly

address whether he was seeking to suppress both the photographic lineup used when Copeland

was interviewed at the police station and any in-court identification. His attorney’s arguments at

the hearing focused on whether the single photographic lineup used during the interview was

unduly suggestive.

Over the course of the hearing, the district court heard testimony from several of the police

officers who responded to and investigated the reports of gunshots and domestic violence. One

officer testified about responding to the “ShotSpotter activation call” that morning, his initial

actions upon arriving in the area, and his discussion with Copeland after she returned to the scene,

during which she identified Simpson (by name and birthdate) as the person that had assaulted her.

Another officer testified about her preparation of the affidavit for the arrest warrant. The State

asked the district court to take judicial notice of “the affidavit of complaining witness that is

contained within the court file,” and the court indicated that it would do so. However, the affidavit

was not marked, identified, and made part of the bill of exceptions.

On the second day of the hearing, a third officer testified about her interview with

Copeland, during which Copeland again indicated that Simpson was her assailant. Copeland

provided the officer with Simpson’s name and date of birth, after which the officer located a copy

of Simpson’s driver’s license photo and showed it to Copeland, who identified the person depicted

as Simpson and indicated that he was the one who assaulted her. The court received into evidence

a copy of Simpson’s driver’s license photo; the officer identified it as a copy of the photo shown

to Copeland but noted that the exhibit had identifying info that she had “cropped out” first and did

not contain Copeland’s written notation identifying the person depicted as “[her] boyfriend, Arthur

Simpson” as the original photo had been “placed in property or evidence down at police

headquarters.” The court also received a DVD copy of the officer’s interview with Copeland. At

the close of this hearing, the State asked the court to take judicial notice of “the affidavit for arrest

warrant” contained in the court file because the prosecutor did not recall whether this had been

done previously. Simpson’s attorney indicated that he had no objection, and the court again took

judicial notice of the affidavit. As before, the affidavit was not marked, identified, and made part

of the bill of exceptions.

On December 26, 2018, the district court entered an order, denying Simpson’s motion to

suppress. Upon reviewing the DVD of the interview with Copeland, the court found ample

probable cause for Simpson’s arrest and that his constitutional rights were not violated. The court

also found that the identification procedure was “performed appropriately and in no way was

unduly suggestive under these particular circumstances.” The court noted that prior to employing

the photo identification procedure, the officer was fully informed that Copeland and Simpson were

intimate partners. Accordingly, the court found that showing only Simpson’s photograph to

Copeland during the interview did not violate his constitutional rights.

Simpson also filed two pretrial motions in limine through his attorney. In the first motion,

Simpson sought an order prohibiting the introduction, directly or indirectly, of evidence regarding

Simpson’s prior convictions, allegations by Copeland that Simpson physically abused or

threatened her on any dates preceding the date of the offense charged, and allegations by any

witness that Simpson physically abused or threatened any individual on any date. Simpson asserted

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that such evidence was irrelevant and excludable pursuant to Neb. Rev. Stat. § 27-404 (Supp.

2019), and alternatively, that any probative value was outweighed by its prejudice to Simpson and

that it should be excluded under Neb. Rev. Stat. § 27-403 (Reissue 2016). In the second motion in

limine, Simpson sought the exclusion of “any evidence . . . regarding the date results in VeriTracks

as reported by [the ankle monitor worn by Simpson]” because (1) “[t]he tracking method and

procedures . . . are not technically sound,” (2) “[t]he results shown are not accurate as to the

provided location information, date, time, and device information,” and (3) “[t]he probative value

of such information is substantially outweighed by the danger of unfair prejudice.” (Simpson was

on parole at the time of the incidents at issue here and wore an electronic ankle monitor).

The district court ruled on those motions just before trial began. The court sustained the

first motion. With respect to the electronic monitoring data, the court ruled that “as long as there’s

proper foundation, et cetera, laid when that individual comes and testifies here today or whatever,

that the Court’s going to allow that to be admitted.” The court stated further, “There is going to be

an issue as a result of this evidence, when we get to it, that the . . . issue of parole in reference to

the defendant is going to have to be mentioned.” The court noted and the State confirmed its

agreement that the word “parole” would “be all that’s mentioned” and that there would not be “any

. . . solicited evidence of what prior convictions the parole is tied to or anything of that nature.”

3. TRIAL EVIDENCE

Trial was held on July 22-25, 2019, with the first day being devoted to jury selection and

the other 3 days to the presentation of evidence. The State’s witnesses included Copeland, officers

involved in the investigation, and individuals familiar with the GPS evidence from Simpson’s

ankle monitor. The State offered into evidence various exhibits, including photographs of the crime

scene and Copeland’s injuries, a recording of the 911 call made by Copeland on the morning of

April 16, 2017, the shell casings retrieved from the crime scene, and a report containing GPS data

from Simpson’s ankle monitor during the relevant times. The district court denied Simpson’s

motion for directed verdict made after the State rested, and Simpson rested without presenting any

evidence. The evidence presented by the State was voluminous. We summarize it here and have

addressed additional details as necessary in the analysis below.

Copeland testified extensively about her background history, her relationship with

Simpson, and the details of the crimes at issue. Shortly after Copeland began her lengthy recitation

of her background, Simpson’s attorney objected on the grounds of relevance, which objection was

overruled by the district court. Simpson’s attorney did not ask for a continuing objection, and he

did not object again on the grounds of relevance during Copeland’s testimony about her

background. This portion of Copeland’s testimony revealed that Copeland’s parents abused drugs,

that she ran away from home when she was 13 years old, that she then entered into a bad

relationship lasting 8 years and during which she had four children, and that she then left Nebraska

after another man offered her a modeling job, which turned out to be prostitution work instead and

which she did off and on for 5 years before returning to Nebraska.

Copeland then testified about her relationship with Simpson. They met when she purchased

drugs from him in late 2015 or early 2016, and they soon began dating. Their child was born in

January 2017. Simpson visited her residence regularly, and they were still in a relationship at the

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time of the incidents at issue. Shortly into their relationship, Copeland observed that Simpson wore

a device on his ankle and learned that it was a form of electronic monitoring originating from

Kansas City, Missouri. She described their relationship as good initially, but she testified that it

had begun to deteriorate by the time she got pregnant.

Next, Copeland described the April 2017 incidents that resulted in the charges at issue. She

described a series of events beginning on April 15 and concluding on the morning of April 16,

during which Simpson left and returned to the residence multiple times, she and Simpson argued

verbally, and Simpson assaulted her physically. The baby was in the residence during Simpson’s

physical assault of Copeland. During the assault, Simpson repeatedly punched and

“chokeslammed” Copeland, which she described as him grabbing her by the neck with both hands

and throwing her across the room. Simpson carried a gun at certain points during these events,

which concluded on the morning of April 16 with Simpson leaving the baby outside in its carrier

and departing on foot after firing the gun at Copeland as she departed by car. After driving away

from the residence, Copeland borrowed someone’s phone and placed a 911 call. After that,

Copeland went first to her mother’s house and then to a friend’s house. Eventually, Copeland was

notified that law enforcement had the baby and that she needed to return to the scene, which she

did.

The State introduced considerable evidence that corroborated Copeland’s account of what

happened. Police officers testified about the injuries they observed on Copeland, consistent with

the photographs taken by police showing the numerous red marks on her neck, swelling under her

left eye, and a “busted” lip. Crime scene photographs showed debris from broken household items

scattered inside the residence and damage to the front door. Police located two bullet casings

outside of the residence, and they took custody of the baby, who had been retrieved by a neighbor.

The GPS data showed that Simpson was in the vicinity of Copeland’s residence during the relevant

period and that he had tampered with his ankle monitor just after these incidents. The recording of

Copeland’s 911 call was played for the jury and was consistent with her account.

4. INFORMATION AMENDMENT, VERDICT, AND SENTENCING

Just prior to resting, the State moved to amend the information to “include April 15th going

into April 16th” in the dates charged. The district court allowed the amendment, over Simpson’s

objection, stating that the State was correct in its position that it had the ability to amend up until

it rested and that “the evidence has certainly been presented to support [the amendment].”

The jury found Simpson guilty on each count, although it found him guilty of misdemeanor

child abuse (a Class I misdemeanor), rather than felony child abuse. The court accepted the verdicts

and entered judgment accordingly.

During the subsequent sentencing hearing, the district court heard statements from the

parties’ attorneys and from Simpson. During his statement, the prosecutor informed the district

court that assault by strangulation was a Class IIIA felony, rather than a Class IV felony, as stated

by the court in earlier comments. The court then sentenced Simpson to the following terms of

imprisonment for his convictions: 3 to 3 years for assault by strangulation, 1 to 1 year for negligent

child abuse, 15 to 25 years for unlawful discharge of a firearm, and 20 to 30 years for use of a

deadly weapon, with 874 days’ credit for time served. The sentences on the first three convictions

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were to run concurrently, and the sentence on the use of a deadly weapon charge was to run

consecutive to all other sentences.

III. ASSIGNMENTS OF ERROR

Simpson asserts, reordered and restated, that the district court erred in (1) denying his

motion to suppress, (2) denying his motions in limine regarding references to him being on parole

and regarding an expert opinion, (3) allowing extensive testimony regarding Copeland’s history,

(4) not ensuring he was properly arraigned or advised on the amended information, and (5)

imposing excessive sentences.

Simpson also asserts that he received ineffective assistance of trial counsel when his

counsel (a) failed to object to the district court taking judicial notice of a nonadjudicated fact; (b)

failed to object to the victim’s extensive, irrelevant, and prejudicial testimony about her

background; (c) failed to object regarding Simpson’s prior bad acts after having his motion in

limine sustained; (d) failed to address the issues regarding Simpson’s illegal sentence; and (e)

because Simpson “did not believe that his attorney was effective.” Brief for appellant at 3.

Assignments of error on direct appeal regarding ineffective assistance of trial counsel must

specifically allege deficient performance, and an appellate court will not scour the remainder of

the brief in search of such specificity. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).

Simpson’s final assigned error regarding ineffective assistance of counsel is a general allegation

and clearly lacks the specificity required by Mrza. His other assigned errors regarding ineffective

assistance have been alleged with enough specificity, and we have addressed them below.

IV. STANDARD OF REVIEW

A district court’s conclusion whether an identification is consistent with due process is

reviewed de novo, but the court’s findings of historical fact are reviewed for clear error. State v.

Pope, 305 Neb. 912, 943 N.W.2d 294 (2020).

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is

controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules

make discretion a factor in determining admissibility. State v. Martinez, 306 Neb. 516, 946 N.W.2d

445 (2020). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the

discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse

of discretion. State v. Martinez, supra. An abuse of discretion exists if the reasons or rulings of a

trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just

results in matters submitted for disposition. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677

(2020).

A ruling on whether to allow a criminal information to be amended is made by the trial

court in its discretion. State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015).

Whether a sentence constitutes cruel and unusual punishment in violation of the Eighth

Amendment presents a question of law. State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019).

When reviewing a question of law, an appellate court reaches a conclusion independent of the

lower court’s ruling. Id. An appellate court will not disturb a sentence imposed within the statutory

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limits absent an abuse of discretion by the trial court. State v. Lauhead, 306 Neb. 701, 947 N.W.2d

296 (2020).

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. State v. Theisen, supra. 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. State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).

V. ANALYSIS

1. COPELAND’S IDENTIFICATION OF SIMPSON

Simpson asserts that the district court erred in denying his motion to suppress, arguing that

the single photographic lineup shown to Copeland when she was interviewed at the police station

was unduly suggestive. He also argues that the single photographic lineup rendered the

identification unreliable and inadmissible because Copeland was the only person to identify

Simpson.

We first note that the police officer who testified about the lineup during the suppression

hearing did not testify about this aspect of his interview of Copeland at trial. Nor did Simpson

object to any of Copeland’s trial testimony identifying him as the person who assaulted her and

committed the other acts at issue. Where there has been a pretrial ruling regarding the admissibility

of evidence, a party must make a timely and specific objection to the evidence when it is offered

at trial in order to preserve any error for appellate review. State v. Goynes, 303 Neb. 129, 927

N.W.2d 346 (2019), cert. denied ___ U.S. ___, 140 S. Ct. 545, 205 L. Ed. 2d 345. The failure to

object to evidence at trial, even though the evidence was the subject of a previous motion to

suppress, waives the objection, and a party will not be heard to complain of the alleged error on

appeal. Id. Here, the evidence about Copeland’s identification of Simpson in the photographic

lineup was not admitted at trial, and Simpson did not otherwise object to her trial testimony

identifying him as the individual committing crimes with which he was charged. Simpson has

waived any error.

Even if Simpson had not waived this error, the record does not show that the district court

erred in concluding that Copeland’s identification of Simpson in the single photographic lineup

was consistent with due process. The Due Process Clause does not require a preliminary judicial

inquiry into the reliability of an eyewitness identification when the identification was not procured

under unnecessarily suggestive circumstances arranged by law enforcement. State v. Pope, 305

Neb. 912, 943 N.W.2d 294 (2020). Suppression of identification evidence on the basis of undue

suggestion is appropriate only where the witness’ ability to make an accurate identification is

outweighed by the corrupting effect of improper police conduct. Id. When no improper law

enforcement activity is involved, it suffices to test the reliability of identification testimony at trial,

through the rights and opportunities generally designed for that purpose, such as the rights to

counsel, compulsory process, and confrontation and cross-examination of witnesses. Id.

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Here, it is clear that Copeland and Simpson were in an intimate relationship and had a child

together. Further, she identified him as her assailant, by name and birthdate, before being shown

the single photographic lineup both at the scene and again at the police station. There is no evidence

of affirmative police conduct tainting the identification procedure, making a preliminary judicial

inquiry into the reliability of her identification necessary. See State v. Dixon, 286 Neb. 334, 837

N.W.2d 4967 (2013) (identification procedure was not tainted by affirmative police misconduct

so as to require preliminary judicial inquiry into reliability of victim’s identification of defendant

as her assailant). It was the jury’s duty to assess the credibility of Copeland’s trial testimony, and

this court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh

the evidence presented; such matters are for the finder of fact. See State v. Dixon, 306 Neb. 853,

947 N.W.2d 563 (2020).

For these reasons, Simpson’s first assignment of error fails.

2. MOTIONS IN LIMINE

(a) Motion Regarding References to Simpson’s Parole

Simpson asserts that the district court erred in denying his motion in limine regarding

references to him being on parole. In his brief, he notes several references made at trial to him

being on parole, but he has not assigned the admission of those statements and testimony as error.

The State asserts that Simpson’s arguments about trial references to him being on parole

made during the prosecutor’s opening statement and the testimony of several witnesses are not

properly before this court because he did not object to these references or otherwise renew that

particular motion in limine at trial. Because overruling a motion in limine is not a final ruling on

admissibility of evidence and, therefore, does not present a question for appellate review, a

question concerning admissibility of evidence which is the subject of a motion in limine is raised

and preserved for appellate review by an appropriate objection to the evidence during trial. State

v. Martinez, 306 Neb. 516, 946 N.W.2d 445 (2020). The State also notes that an appellant who has

assigned only that the trial court erred in denying a motion in limine has not triggered appellate

review of the evidentiary ruling at trial. State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).

Simpson did object to one of the trial references to parole. During Copeland’s testimony

she was asked about the period of time her child with Simpson spent in foster care subsequent to

the events in question, the child’s return to her care, and at what point she became aware that

Simpson had been arrested. Copeland testified to learning that “the foster care people” had been

in contact with Simpson, and she stated, with respect to Simpson, “I don’t think he knew at the

time that I told about the shooting and everything, so he just thought he could turn hisself [sic] in

for his parole for the stuff, and then they were just going to let him get the baby.” Simpson’s

attorney objected and asked “that the record be stricken of any mention of parole,” which objection

was overruled by the district court. As noted above, however, Simpson failed to assign error with

regard to this evidentiary ruling. Even if Simpson had assigned error to the admission of this

testimony, rather than to just the overruling of his motion in limine, any error would be harmless

as such testimony was cumulative of other evidence received at trial. See State v. Hood, 301 Neb.

207, 917 N.W.2d 880 (2018) (erroneous admission of evidence is generally harmless error and

does not require reversal if evidence is cumulative and other relevant evidence, properly admitted,

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supports finding by trier of fact). The parole officer who monitored Simpson in Nebraska testified

without objection to the fact that Simpson was on parole. Because Simpson did not preserve the

denial of his motion in limine by assigning error to the admission of the testimony by Copeland

regarding parole, this assignment of error fails.

(b) Motion Regarding Expert Opinion

Simpson asserts that the district court erred in denying his motion in limine regarding the

expert opinion of Ashley Fuller. Fuller is an employee of a technology company that specializes

in electronic monitoring. She analyzes GPS data from the company’s devices and associated

software system, determines if it is consistent with “valid working GPS,” compiles the data into

different formats for the company’s customers (primarily law enforcement agencies throughout

the country), and testifies about the data as necessary. At trial, she described her expertise as “[t]he

integration of GPS into [the company’s software system].” After eliciting this and other

background information from her at trial, the State moved to qualify Fuller as an expert in that

specific field. The court overruled Simpson’s renewal of “the objections that were made in [his]

motion in limine” and recognized Fuller as an expert in that area.

Fuller then testified further without objection about her background, how GPS works, and

the monitoring devices and software system used by her company. Her company was asked by

“the parole office for the State of Nebraska” to provide data from the device assigned to Simpson.

She compiled a report, which included screenshots of the map associated with the software system

and tracking data for Simpson’s device from the requested time frame on April 15 and 16, 2017,

which she testified “fairly and accurately depicted the tracking data” for Simpson’s device. She

testified further about how the data is collected and maintained in her company’s records, after

which the State offered the report into evidence. The court overruled Simpson’s objections on the

basis of foundation and hearsay and received the report.

Although Simpson did renew the objections of this second motion in limine at trial, as with

his previous assignment of error, he has not challenged the admission of Fuller’s testimony or the

report at trial. He has simply assigned error to the district court’s denial of his motion in limine

concerning Fuller’s expert opinion and has not triggered appellate review of the evidentiary rulings

at trial. See State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020) (appellant who has assigned

only that trial court erred in denying motion in limine has not triggered appellate review of

evidentiary ruling at trial).

3. ADMISSION OF COPELAND’S BACKGROUND TESTIMONY

Simpson asserts that the district court erred in allowing extensive testimony regarding

Copeland’s history. As noted above, Copeland testified extensively about the circumstances of her

life prior to her involvement with Simpson. Near the beginning of Copeland’s testimony,

Simpson’s attorney objected on the grounds of relevance to this line of questioning, which

objection was overruled by the court. Simpson’s attorney did not ask for a continuing objection

and did not object again on that ground, although he made various objections to Copeland’s

testimony once she began testifying about her interactions with Simpson and the events in

question. Copeland was the last witness who testified on that particular day of trial, and following

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Simpson’s relevance objection, her background testimony continued until trial adjourned for the

day. Just before adjournment, the court admonished the prosecutor to move on from testimony

about Copeland’s background, which the court characterized as having exceeded what was

necessary to “humaniz[e]” Copeland. Copeland’s testimony continued the next day of trial, and

the State moved on to asking questions relevant to her relationship with Simpson and the events

in question.

Aside from the one objection, Copeland’s testimony about her background was admitted

without objection, and any error in the admission of the portion of that testimony admitted without

objection has not been preserved for appellate review. Failure to make a timely objection waives

the right to assert prejudicial error on appeal. State v. Devers, 306 Neb. 429, 945 N.W.2d 470

(2020). And, while at least some of this testimony was arguably irrelevant, any error in admitting

Copeland’s testimony about her background was harmless. Harmless error review looks to the

basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that

occurred without the error, a guilty verdict surely would have been rendered, but, rather, whether

the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. Id.

Although Copeland’s testimony about her background was extensive, in the entirety of the 3 days

of trial devoted to evidence, Copeland’s testimony about her background represented but a small

portion of the overall evidence presented by the State. And the jury was instructed on the elements

of the offenses and instructed not to allow sympathy or prejudice to influence their decision. Given

the copious evidence about the crimes with which Simpson was charged, his guilty verdicts were

surely unattributable to Copeland’s testimony about her background. Any error in admitting that

evidence was harmless.

4. ARRAIGNMENT ON AMENDED INFORMATION

Simpson asserts that the district court erred in not ensuring he was properly arraigned or

advised on the amended information. He argues that he was never advised of the range of sentences

under the amended information and was not provided with 1 day before having to stand trial on

the amended information.

The original information alleged that Simpson committed the crimes with which he was

charged “[o]n or about 16 April 2017.” Prior to trial, pursuant to Neb. Rev. Stat. § 29-4206

(Reissue 2016), Simpson filed a written waiver of arraignment and plea of not guilty, which were

accepted by the district court. The evidence at trial showed that the events in question began on

April 15 and continued into April 16. At the close of the State’s case, the prosecutor asked the

court for permission to amend the information “to include April 15th going into April 16th,” which

motion the court granted over Simpson’s objection. In doing so, the court noted that the evidence

had been presented to support the amendment.

In support of his arguments, Simpson cites Neb. Rev. Stat. § 29-1816(1)(b) (Cum. Supp.

2018), which provides, “If the accused appears in person and by counsel and goes to trial before a

jury regularly impaneled and sworn, he or she shall be deemed to have waived arraignment and a

plea of not guilty shall be deemed to have been made.” That is what happened here. And, as noted

above, Simpson filed a pretrial “Written Arraignment” pursuant to § 29-4206. Although the actual

written arraignment filed by Simpson is not contained in our record (we only have the court’s order

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accepting it and entering a not guilty plea on Simpson’s behalf), § 29-4206 provides a form for

such filings, including a statement that “in the event that the charges have been amended or new

charges added I wish to waive a formal preliminary hearing or arraignment before the court and

ask the court to enter plea(s) of not guilty on my behalf.” Simpson clearly waived arraignment on

the original information, and he does not argue that his written waiver did not cover an amendment

to that information.

Simpson also cites Neb. Rev. Stat. § 29-1802 (Cum. Supp. 2018), which provides, “No one

shall be, without his or her assent, arraigned or called on to answer to any indictment until one day

has elapsed after receiving in person or by counsel or having an opportunity to receive a copy of

such indictment.” This section generally applies to informations, see Neb. Rev. Stat. § 29-1604

(Reissue 2016); however, the purpose of the 24-hour waiting period provided for by § 29-1802 is

to ensure that the defendant has a reasonable amount of time to prepare his or her defense. See

State v. High, 225 Neb. 695, 407 N.W.2d 772 (1987). Here, the amended information did not make

any new or additional charges or raise matters of which Simpson was not previously aware;

instead, the offense dates specified in the original information (“[o]n or about 16 April 2017”)

were amended at the close of the State’s case to more closely conform to the evidence at trial (to

specify “[o]n or about 15 April 2017 through 16 April 2017”). As such, Simpson was not arraigned

on or called to answer any new charges and the one day waiting period would serve no purpose.

The exact time when a criminal offense is committed is not an essential element of a crime

unless the statute defining the offense makes a date or time an indispensable element of the crime

charged. State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (2015). None of the statutes under

which Simpson was charged make a date or time an indispensable element of the crime charged.

See §§ 28-310.01, 28-707, 28-1212.02, and 28-1205. The only indirect reference to time is found

in § 28-320.01 (child abuse), but other than defining the victim as a minor child, that statute, like

the other relevant statutes, does not make a date or time an indispensable element of the crime

charged. In count II, the original information advised Simpson that he needed to defend himself

against an allegation that he “knowingly and intentionally cause[d] or permit[d] a minor child, K.

S-C.[,] to be: placed in a situation that endanger[ed] his or her life or physical or mental health.”

The amendment to the information did not alter these essential elements of the crime alleged in

count II. Nor did it alter the essential elements of any of the other crimes alleged. See State v.

Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984) (no error in allowing State to amend information

at end of its case-in-chief regarding date range of offense to conform to evidence).

At time of the State’s amendment, Simpson could have asked for a continuance to further

prepare his defense if he felt it necessary, but he did not do so. And, he does not argue on appeal

that the amendment forced him to change any portion of his defense. By that point in the trial, he

had already spent several days defending against the State’s evidence, which showed that the

events in question began on April 15, 2017, and continued into April 16. Simpson does not argue

on appeal that the amendment to the information to conform to the dates established by the State’s

evidence unfairly prejudiced his defense, and he has not otherwise shown that it violated his right

to due process.

Simpson waived arraignment on the original information and the amended information

merely changed the date of the offense, at the conclusion of the State’s case-in-chief, from “[o]n

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or about 16 April 2017” to “[o]n or about 15 April 2017 through 16 April 2017.” Simpson has

failed to identify any authority to support his argument that he had to be arraigned again on the

amended information and provided with one day before standing trial under these circumstances.

With regard to his argument that he was not advised of the possible sentences under the amended

information, Simpson cites to case law regarding the voluntariness of a plea, which is inapplicable

here. Further, there was no change in the crime charged or in the possible sentences which would

have required advisement. The district court did not abuse its discretion in permitting the State to

amend the dates alleged in the information without again arraigning Simpson or again advising

him of the possible sentences.

5. SENTENCING

Simpson asserts that the district court erred in imposing excessive sentences. He argues

that the district court gave excessive weight to his criminal history and did not appear to give

weight to any of the other relevant factors, that his sentences were excessive “in light of the Eighth

Amendment,” and that his sentence for assault by strangulation was “not within the statutory limits

for the crime [he] was charged with and found guilty of.” Brief for appellant at 4 and 23.

Simpson was sentenced to 3 to 3 years’ imprisonment for assault by strangulation, a Class

IIIA felony. § 28-310.01. This sentence was to run concurrently with the sentences for negligent

child abuse (Class I misdemeanor) and unlawful discharge of a firearm (Class ID felony) but

consecutive with the sentence for use of a deadly weapon (firearm) to commit a felony (Class IC

felony). See §§ 28-707, 28-1212.02, and 28-1205. Ordinarily, Class IIIA felonies are punishable

by up to 3 years’ imprisonment and 18 months’ postrelease supervision, a $10,000 fine, or both

fine and imprisonment; and require a minimum of 9 months’ postrelease supervision if

imprisonment is imposed. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2018). However, where, as

here, a sentence of imprisonment for a Class IIIA felony offense committed on or after August 30,

2015, is ordered to run consecutively or concurrently with a sentence of imprisonment for a Class

IC or a Class ID felony, the court is to impose an indeterminate sentence without a period of

postrelease supervision. Neb. Rev. Stat. § 29-2204.02(4) (Reissue 2016). Simpson’s sentence for

his assault by strangulation conviction was within the statutory limits.

Simpson also relies on the fact that the information, amended information, and other

documents in the record incorrectly identified assault by strangulation as a Class IV felony to argue

that the district court imposed a sentence outside of the statutory limits. Class IV felonies are

punishable by up to 2 years’ imprisonment and 12 months’ postrelease supervision, a $10,000 fine,

or both, and require a minimum of 9 months’ postrelease supervision if imprisonment is imposed.

See § 28-105. However, assault by strangulation is clearly a Class IIIA felony, and the district

court sentenced Simpson within the relevant statutory limits. See §§ 28-310.01 and 28-105. If the

court had treated assault by strangulation as a Class IV felony in sentencing Simpson, it would

have been plain error. See State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016),

abrogated on other grounds, State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020) (finding

plain error in sentence when trial court treated conspiracy as Class II felony rather than Class IA

felony pursuant to statute).

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The sentences for Simpson’s other convictions were also within the statutory limits. He

was sentenced to imprisonment for 1 to 1 year for negligent child abuse. Class I misdemeanors are

punishable by up to 1 year’s imprisonment, a $1,000 fine, or both. Neb. Rev. Stat. § 28-106

(Reissue 2016) and § 28-707. And, he was sentenced to imprisonment for 15 to 25 years for

unlawful discharge of a firearm and 20 to 30 years for use of a deadly weapon (firearm) to commit

a felony. Class ID felonies are punishable by a mandatory minimum of 3 years’ imprisonment and

a maximum of 50 years; Class IC felonies are punishable by a mandatory minimum of 5 years’

imprisonment and a maximum of 50 years. See §§ 28-105, 28-1212.02, and 28-1205.

The Eighth Amendment prohibits not only barbaric punishments, but also sentences that

are disproportionate to the crime committed. State v. Becker, 304 Neb. 693, 936 N.W.2d 505

(2019). The U.S. Supreme Court has characterized this as a “narrow proportionality principle”

which does not require strict proportionality between crime and sentence, but, rather, forbids only

extreme sentences that are grossly disproportionate to the crime. State v. Becker, supra. Under

ordinary Eighth Amendment analysis, each sentence is considered separately, not cumulatively,

for purposes of determining whether it is cruel and unusual. State v. Becker, supra. As noted above,

Simpson’s sentences were all within the relevant statutory limits. Eighth Amendment analysis

generally respects legislative determinations of statutory sentencing limits. See State v. Becker,

supra. Viewing Simpson’s sentences individually, we conclude that each individual sentence

imposed on him was well within the statutory limits and was not grossly disproportionate in

violation of the Eighth Amendment.

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. Williams, 306 Neb. 261, 945 N.W.2d 124 (2020). In determining

a sentence to be imposed, relevant factors customarily considered and applied are 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 amount of violence involved in the commission of the crime.

State v. Martinez, 306 Neb. 516, 946 N.W.2d 445 (2020). However, the sentencing court is not

limited to any mathematically applied set of factors. State v. Archie, 305 Neb. 835, 943 N.W.2d

252 (2020). 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. Martinez, supra.

Prior to sentencing Simpson, the district court noted that it had reviewed the presentence

investigation report (PSR). The court noted “the extreme seriousness” of the crimes of which

Simpson had been convicted in this case, which occurred while he was on parole for a second

degree murder conviction in Kansas City, Missouri. The court referenced the “extreme fear and

fright” experienced by the victim in this case, stating that Simpson was “a danger to the public.”

At the time of the PSR, Simpson was 35 years old, had a GED, was single with one dependent,

and was unemployed. His prior criminal history includes numerous convictions for tampering with

a motor vehicle/airplane and felony possession of a controlled substance in addition to the second

degree murder conviction. Overall on the level of service/case management inventory risk

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assessment, he scored in the high risk range to reoffend. On the substance abuse questionnaire,

Simpson scored in the maximum risk range on the antisocial behavior scale and in the problem

risk range in the areas of drugs and violence.

The district court considered the relevant factors and did not impose excessive sentences

or otherwise abuse its discretion in sentencing Simpson.

6. INEFFECTIVE ASSISTANCE OF COUNSEL

Simpson is represented on direct appeal by different counsel than trial counsel. 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. State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).

Once issues of trial counsel’s ineffective performance are properly raised, the appellate court will

determine whether the record on appeal is sufficient to review the merits of the ineffective

performance claims. Id.

In order to know whether the record is insufficient to address assertions on direct appeal

that trial counsel was ineffective, appellate counsel must assign and argue deficiency with enough

particularity (1) for an appellate court to make a determination of whether the claim can be decided

upon the trial record and (2) for a district court later reviewing a petition for postconviction relief

to be able to recognize whether the claim was brought before the appellate court. Id. When a claim

of ineffective assistance of trial counsel is raised in a direct appeal, the appellant is not required to

allege prejudice; however, an appellant must make specific allegations of the conduct that he or

she claims constitutes deficient performance by trial counsel. 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. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020). 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. State v. Anderson, 305 Neb.

978, 943 N.W.2d 690 (2020). 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. Id. A reasonable probability

is a probability sufficient to undermine confidence in the outcome. Id.

(a) Failure to Object to Court’s Judicial Notice

Simpson asserts that he received ineffective assistance of trial counsel when his counsel

failed to object to the district court taking judicial notice of a nonadjudicated fact. At the State’s

request, the district court took judicial notice of the affidavit of the arrest warrant for Simpson

during both days of the hearing on his motion to suppress, but a copy of the arrest warrant was not

marked and included in the bill of exceptions. Papers requested to be judicially noticed must be

marked, identified, and made a part of the bill of exceptions. Bohling v. Bohling, 304 Neb. 968,

937 N.W.2d 855 (2020). Even if the affidavit had been marked and included in the bill of

exceptions for our review, the record is sufficient for us to determine that there was no prejudice

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to Simpson in its admission. The police officer who prepared the affidavit testified extensively

about doing so, and the State could have simply offered the affidavit as an exhibit as opposed to

asking the court to take judicial notice of it. The suppression hearing proceeded on the

understanding that Simpson was challenging the probable cause for his arrest and the single

photographic lineup used during the interview of Copeland, and in addition to the testimony from

the officer who prepared the affidavit, the State presented testimony at the hearing from two other

officers who responded to and investigated the reports of gunshots and domestic violence. It is

clear from this record that counsel’s failure to object to the court’s judicial notice of the affidavit

did not prejudice Simpson.

(b) Failure to Object to Testimony About Victim’s Background

Simpson asserts he received ineffective assistance of trial counsel when his counsel failed

to object to the victim’s extensive, irrelevant, and prejudicial testimony about her background. We

have already determined that any error in admitting this portion of Copeland’ testimony was

harmless error. See State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020). Accordingly, Simpson

cannot show that he was prejudiced by his counsel’s failure to object to this testimony.

(c) Failure to Object to Prior Bad Acts Evidence

Simpson asserts that he received ineffective assistance of trial counsel when his counsel

failed to object regarding Simpson’s prior bad acts after having his motion in limine sustained. In

one motion in limine, Simpson sought to exclude any evidence regarding his prior convictions or

that he physically abused or threatened Copeland on any date preceding the date of the alleged

offenses or any other individual on any date. The district court sustained that motion. The court

denied Simpson’s second motion in limine, dealing with evidence about the data from his ankle

monitor, with the understanding that such evidence, upon proper foundation at trial, would require

mentioning that Simpson was on parole and that the State would not be allowed to solicit evidence

of prior convictions tied to that parole.

In his brief, Simpson references Copeland’s testimony that she learned Simpson moved to

Omaha from Kansas City “when he had transferred his stuff” from there to Nebraska, in reference

to him being “on some sort of electronic monitoring,” and that she used to drive him to Kansas

City for appointments. Copeland mentioned parole in describing when she learned that Simpson

had been arrested for the crimes at issue here; Simpson’s attorney objected and asked the court to

strike “any mention of parole,” which objection was overruled. Simpson also notes references in

the State’s opening and closing arguments to Simpson being on parole that were not challenged

by his attorney.

Simpson also references testimony by Copeland about other behavior or statements by

Simpson, some of which was objected to by his attorney. In describing their relationship, Copeland

testified without objection about their arguments over topics such as Simpson plotting to kill

people or wanting to rob banks. The court overruled a hearsay objection by Simpson when

Copeland testified about him “seeing people [sic] faces that he had killed.” She testified without

objection that her cousin was “just using” Simpson and keeping him “close” because the cousin

“knew [Simpson] was a shooter” and could “handle his business.” This testimony was presented

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in the context of Copeland explaining how she knew Simpson had gone to her cousin’s house after

one of their arguments. Finally, Simpson references a statement by Copeland during

cross-examination that Simpson “would run to the girls because [Copeland] would be on his neck

about the other things, the murders . . . the wanting to rob the banks, the car jackings, the chop

shop stuff, stealing people [sic] cars.” This statement was in response to questioning by Simpson’s

attorney about whether she was upset about Simpson “cheating” on her with other women.

Pursuant to § 27-404(2), evidence of “other crimes, wrongs, or acts” is not admissible “to

prove the character of a person in order to show that he or she acted in conformity therewith,” but

it may be admissible for purposes “such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” This is an inclusionary rule which permits

the use of evidence of other crimes, wrongs, or acts if such is relevant for any purpose other than

to show the defendant’s propensity or disposition to commit the crime charged. See State v. Myers,

15 Neb. App. 308, 726 N.W.2d 198 (2006). An appellate court’s analysis under this section,

considers whether the (1) evidence was relevant for some purpose other than to prove the character

of a person to show that he or she acted in conformity therewith, (2) probative value of the evidence

is substantially outweighed by its potential for unfair prejudice, and (3) trial court, if requested,

instructed the jury to consider the evidence only for the limited purpose for which it was admitted.

See id.

Some of the testimony referenced by Simpson was not evidence of “other crimes, wrongs,

or acts” under § 27-404(2), and he has not shown that any of it was offered to prove his “character”

or that he “acted in conformity therewith.” The evidence that Simpson was on parole was offered

to provide the foundation for the evidence about GPS data from his monitoring device and was

allowed under the district court’s ruling on that motion in limine. We conclude that counsel’s

performance was not deficient in regard to admission of the evidence that Simpson was on parole.

Other evidence referenced by Simpson was offered to provide context for the deterioration

of his relationship with Copeland and thus had some probative value. Even if this evidence was

more prejudicial than probative as argued by Simpson, he cannot demonstrate that the result of the

proceeding would have been different had the evidence been successfully objected to given the

other substantial evidence to support his convictions. State v. Anderson, supra.

We reject Simpson’s argument that his counsel was ineffective for failure to object to the

evidence regarding his alleged prior bad acts.

(d) Failure to Address Sentencing Issues

Simpson asserts that he received ineffective assistance of trial counsel when his counsel

failed to address the issues regarding Simpson’s illegal sentence. This assignment of error is based

on his assertion that his assault by strangulation conviction should have been treated as Class IV

felony for purposes of sentencing based on how it was identified in the informations filed in this

case. He argued that his attorney should have objected during sentencing when the prosecutor

pointed out that it was actually a Class IIIA felony and should have questioned the district court

when it stated that he was being sentenced on a Class IIIA felony. We have already determined

above that the court would have erred in treating the assault by strangulation as a Class IV felony.

See, State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016), abrogated on other

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grounds, State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020); §§ 28-310.01 and 28-105.

Simpson’s trial counsel was not ineffective for failing to address the correct classification of this

crime during sentencing

For the reasons set forth above, we affirm Simpson’s convictions and sentences.

AFFIRMED.