State of Nebraska, appellee,
v. Don Abbott, appellant.

State v. Abbott
(not designated for permanent publication)

Filed January 15, 2002.    No. A-00-1328.

    Appeal from the District Court for Lancaster County: Bernard J. McGinn, Judge. Affirmed.

    Peter K. Blakeslee and, on brief, Brad Roth and Stephanie R. Hupp, of McHenry, Haszard, Hansen & Roth, for appellant.

    Don Stenberg, Attorney General, and J. Kirk Brown for appellee.

    Hannon, Sievers, and Moore, Judges.

    Sievers, Judge.

    Don Abbott appeals a jury verdict from the Lancaster County District Court finding him guilty of terroristic threats and first degree false imprisonment. Abbott claims that the district court erred in not giving jury instructions on attempted terroristic threats and attempted false imprisonment as lesser-included offenses, in not specifying the crime of violence in the terroristic threats instruction, in not granting a continuance to allow Abbott to secure new counsel, in failing to grant a mistrial due to juror contact with a witness, in overruling Abbott's motion for a new trial, and in imposing excessive sentences. In addition, Abbott claims that his trial counsel rendered ineffective assistance and that there is insufficient evidence to support his convictions.

FACTUAL BACKGROUND

    Because Robin Huffman, Dorothy Huffman, and Abbott, the three people involved in the events of February 8 and 9, 2000, all testified to differing versions, it is difficult to recite a completely coherent set of facts for this case. Thus, we reduce our account of this large record to that essential to the analysis of the assigned errors, while acknowledging at the outset that there are inconsistencies in the testimony.

    On February 8, 2000, Abbott and Robin were planning a trip to Colorado to get married. According to his testimony, Abbott had slept at Robin's house the previous night. The difficulties arose when Abbott awoke and began requesting that Robin give him the title to a Monte Carlo automobile which Abbott says was his, but Robin says was hers.

    Robin testified that during the ensuing argument, Abbott's temper flared. According to her, he ripped the telephone cord from the wall. Abbott testified that Robin jumped on his back and started beating him and calling him names. Abbott said he shoved Robin because she would not stop punching him in the face. He said that the telephone was ripped from the wall because Robin attacked him when he tried to call a friend.

    Abbott testified that he left the house to use a pay telephone and that Robin attacked him again when he returned, punching him in the eye with her left hand. Then, he said, she "whipped out a utility knife," raised her arms, and "started to come at [him] again." Abbott testified that he held Robin's arms tightly and "laid her on the ground" to protect himself from the knife. He testified that he took the knife from her and threw it in a "flower arrangement."

    At some point, Robin's mother, Dorothy, arrived. Dorothy testified that Abbott threw her in a chair and yelled in her face, demanding that she say he was an "F-S-O-B." She said that she refused, and then Abbott broke some pictures and a wooden tray. According to Dorothy, Abbott threw her in the chair again. Dorothy testified that Abbott then said he was taking her blindfolded to Arizona, where Robin's father lives, so that Robin's father could see who was in charge of the family.

    Abbott testified as follows concerning Dorothy's first claim that he threw her in the chair: "[W]hen I walked in the door, Dorothy jumped up like this (indicating) and said, you need to leave here. And [Robin] jumped on me. And then, when she jumped on me she knocked her mom back in the chair." Regarding the second time Dorothy claims he threw her down, Abbott testified that he actually found Dorothy already sitting in the chair and that he just knelt before her to show her a box containing Robin's drug paraphernalia. Dorothy admits that Abbott showed her a box containing what she describes as "little white boxes."

    Robin called the police to the house, and they came, but made no arrests. The police requested that Abbott leave, which he did. Abbott returned on February 9, 2000, at approximately 1 a.m. Dorothy and Robin testified that he broke through the doorframe and three locks on the door to get inside when they refused to open the door. Abbott testified that he used a key to get in.

    The order of the events which followed is murky at best. Dorothy and Robin testified that Dorothy attempted at some point to leave through the back door to call the police, but she could not get over the fence in the backyard and had to return to the house. She and Robin testified that Abbott pulled Dorothy back into the house by her hair. Abbott testified that he did not know she had left the house until he heard something at the back door and then observed Dorothy there. He says he just "opened the door up and she stumbled and fell over the -- the step coming up. And [he] helped her up," but never touched her hair. Dorothy and Robin testified that Abbott shoved Dorothy on the dining room floor after Dorothy returned to the house. Dorothy testified that this happened three times. Abbott says he never threw Dorothy to the ground.

    Robin and Dorothy testified that at some time during this conflict, Abbott punched Robin in the eye, nose, lip, and cheek area. Dorothy testified that she decided again to seek help and "just went out the front door." She attempted to find a telephone, first at a closed gas station and then at a neighbor's house. When she could not find a telephone, Dorothy tried to flag down passing motorists. When no one would stop, Dorothy said she ran back to the house in fear for Robin's life. In the house, Dorothy found Abbott with blood on his ear and a butcher knife in his hand and Robin with a utility knife in her hand.

    Robin testified that Abbott stabbed the butcher knife twice in the wall close to her head. Dorothy testified that Abbott "was so mad he stabbed the wall about that far from Robin's head with the butcher knife and broke it in three pieces" and that he handed the pieces to her. Abbott testified that he stabbed the wall after wrestling the knife from Robin's hand and that he threw the knife to Dorothy. Apparently at some time during this particular conflict, Robin cut Abbott's ear. Abbott testified that Robin had cut him earlier while he was showing the drug paraphernalia box to Dorothy.

    Robin also testified that Abbott had at some point raised her leg above her head and repeatedly tried to kick her other leg out from underneath her. Abbott testified that he was simply trying to make Robin stop kicking him. Dorothy testified that during the course of the evening, Abbott probably "threw Robin down" about 10 times.

    Robin testified that Abbott was angry that Dorothy had left the house, so he shoved them both into the bedroom. "He pushed my mom on the bed and pushed me in there and slammed the door shut." Dorothy testified that when he threw them in the bedroom, he had the butcher knife in his hand and told them to "stay there." Robin tried to open the door, Dorothy testified, and Abbott "threw [them] back in there, slammed the door, told [them] to stay there." 

    According to Robin and Dorothy, at some point, Dorothy wanted to find her glasses, which Dorothy testified she had lost when Abbott threw her on the floor. So Dorothy left the bedroom, according to both Robin and Dorothy, and then, according to Robin, Abbott grabbed Dorothy by her hair. 

    Dorothy asked for a drink of water, and Abbott brought her water, but left the faucet on. Dorothy followed Abbott back to the faucet, at which point Robin ran out of the house to telephone the police. Robin and Dorothy testified that Abbott ran to the door with a knife and yelled after Robin that Dorothy would not be there when she returned. Abbott denies following Robin out on the porch with a knife or that he made the statement about Dorothy. Abbott testified: "Robin left; and then when I come back in I noticed [the knife] was laying on the floor and I picked it up."

    According to Dorothy, Abbott started walking around in the house and told Dorothy to stay seated because the police were going to shoot at the house. According to Dorothy, Abbott barricaded the door with a rocking chair. When Abbott went to the kitchen, Dorothy said that she "ran to the door, pulled the rocking chair out. And [a] policeman grabbed [her] arm, pulled [her] out."

    Michael Woolman, a Lincoln police sergeant, testified that he responded to a dispatch about the domestic violence occurring at Robin's house and found officers setting up a perimeter at the address. The officers informed him that a white male, possibly armed with a knife, had threatened two people inside the residence. Woolman testified that Abbott emerged from the house onto the front porch and was holding what looked like a 6-inch butcher knife. According to Woolman, Abbott broke out a window with the knife, and at that point, Woolman began conversations with Abbott that lasted approximately 1 hour. Woolman says that Abbott alternated between "calm" and "upset" during this conversation. 

    At some point, a SWAT team was called to the scene. A member of the SWAT team, Det. Sgt. Gregory Sorensen, testified that when he entered the house, he found Abbott in a locked bedroom hiding between the bed and the wall. Abbott testified that he was just physically and mentally "wore out" and was just "laying on the bed."

    Dorothy testified that during the conflict, her shoulders, leg, and knee were injured. Robin testified that she got "bruised kidneys from [Abbott] pushing [her] down so many times." She further testified to her injuries as follows: 

And I had blood coming out of my urine. I had white spots in my eyes[.]
    . . . .
    . . . I couldn't see out of my eye, it was blurred. I had white spots in it. My nose hurt, it was full of blood. My cheekbone hurt by my eye and by the lower part of my nose and my lip was split open. And I had over thirty bruises on my body. And my knee hurt so bad from him kicking.
    . . . .
    . . . I took five days off because I was in such pain, I couldn't -- I couldn't work.

Robin also testified:

I remember after it happened I blew my nose down at the neighbor's house. And I felt like [I] popped a blood vessel. But when I went and had a specialist look at it, he told me that that was the air being forced through a crack in my skull.

Photographs taken by the police that night show that Robin had several bruises, and Abbott admitted that "evidently she did" receive numerous bruises during the altercation. Abbott testified to the cut on his ear and scratches on his neck.

PROCEDURAL BACKGROUND

    Abbott was charged with two counts of terroristic threats and two counts of false imprisonment in the first degree. The jury returned a guilty verdict on terroristic threats concerning Robin and guilty verdicts on the two counts of first degree false imprisonment of Dorothy and Robin. Abbott's motion for a new trial was overruled, and he was sentenced to three consecutive terms of 20 months' to 5 years' imprisonment each, with credit for time served of 300 days.

ASSIGNMENTS OF ERROR

    Abbott makes the following assignments of error: (1) The trial court erred in refusing to instruct the jury on attempted terroristic threats and attempted false imprisonment, (2) the trial court erred in failing to include the specific crime of violence within the terroristic threats instruction, (3) the trial court erred in failing to grant a continuance to allow Abbott to secure new counsel, (4) the trial court erred in failing to grant a mistrial because the jurors saw Robin crying outside the courtroom, (5) the trial court erred in overruling the motion for new trial, (6) the trial court imposed excessive sentences, (7) Abbott's trial counsel rendered ineffective assistance, and (8) there was insufficient evidence to support the convictions.

ANALYSIS

Jury Instructions on Attempted False Imprisonment.

    Abbott claims that attempted first and second degree false imprisonment are lesser-included offenses of first degree false imprisonment. He argues that the jury could reasonably find from the evidence that though there may have been attempts to imprison Robin and Dorothy, he never was successful because they were leaving and going everywhere virtually all the time.

    To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. Mobeco Indus. v. City of Omaha, 257 Neb. 365, 598 N.W.2d 445 (1999).

    In determining whether a particular crime is a lesser-included offense of a greater crime, we compare the statutory elements of each offense to determine if it is impossible to commit the greater offense without also committing the lesser offense. See State v. Johnson, 261 Neb. 1001, 627 N.W.2d 753 (2001). The elements test "'involves a textual comparison of criminal statutes and does not depend on inferences that may be drawn from evidence introduced at trial.'" State v. Al-Zubaidy, 253 Neb. 357, 362, 570 N.W.2d 713, 716 (1997), quoting Schmuck v. United States, 489 U.S. 705, 109 S. Ct. 1443, 103 L. Ed. 2d 734 (1989).

    In pertinent part, Neb. Rev. Stat. § 28-314(1) (Cum. Supp. 2000) provides that "[a] person commits false imprisonment in the first degree if he or she knowingly restrains or abducts another person (a) under terrorizing circumstances or under circumstances which expose the person to the risk of serious bodily injury." Second degree false imprisonment requires that the defendant "knowingly restrai[n] another person without legal authority." Neb. Rev. Stat. § 28-315 (Reissue 1995).

    "Attempt," as defined by Neb. Rev. Stat. § 28-201 (Cum. Supp. 2000), requires that the defendant 

[i]ntentionally engag[e] in conduct which would constitute the crime if the attendant circumstances were as he or she believes them to be; or
    (b) Intentionally engag[e] in conduct which, under the circumstances as he or she believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his or her commission of the crime.

In addition,

[w]hen causing a particular result is an element of the crime, a person shall be guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, he or she intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result.

Id. Conduct is a "substantial step" only if it is "strongly corroborative" of the defendant's criminal intent. Id.

    State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997), holds that when analyzing "attempt" crimes under the elements test, it is necessary to focus on the elements of the choate crime itself instead of on the attempt statute. Where the substantive crime requires knowledge rather than specific intent, the attempt to commit that crime likewise requires only knowledge rather than specific intent. 22 C.J.S. Criminal Law § 117 (1989). Therefore, because the false imprisonment statute requires that the defendant "knowingly" restrain or abduct another person, an attempt to falsely imprison requires knowledge rather than intent. See State v. Miller, 216 Neb. 72, 341 N.W.2d 915 (1983) (specific intent is not element of false imprisonment).

    Under such an analysis, the essential elements of attempted first degree false imprisonment are knowingly engaging in conduct which would constitute a substantial step in a course of conduct known to cause the result of restraining or abducting another person under terrorizing circumstances or under circumstances which expose the person to the risk of serious bodily injury. The statutory elements of second degree false imprisonment are knowingly engaging in conduct which would constitute a substantial step in a course of conduct known to cause the result of restraining another person without legal authority.

    A court must instruct on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993). Both prongs of Williams, commonly referenced as the "elements test," must be satisfied before a court is required to give a lesser-included offense instruction. If the first prong of the test is not satisfied, it is unnecessary to analyze the second prong. State v. Wright, 261 Neb. 277, 622 N.W.2d 676 (2001).

    One cannot knowingly restrain another under terrorizing circumstances or circumstances which expose the person to risk of bodily injury without knowingly engaging in conduct resulting in such restraint. Thus, under the elements test, one cannot commit first degree false imprisonment without also committing attempted first degree false imprisonment. However, because second degree false imprisonment requires that the defendant restrain another "without legal authority," an element not present in the text of the first degree false imprisonment statute, attempted second degree false imprisonment is not a lesser-included offense of first degree false imprisonment.

    Having concluded that attempted first degree false imprisonment is a lesser-included offense of first degree false imprisonment, we must now determine whether the evidence produces a rational basis for acquitting Abbott of the greater offense and convicting him of the lesser offense.

    At the jury instruction conference, Abbott's attorney argued that while there was evidence of attempted restraint, the women were able to go outside and leave the bedroom. The State responded that it was not required to show that Abbott restrained Dorothy and Robin for any particular length of time, and the evidence clearly shows that at certain times, the two women were restrained, even if for a short period of time.

    We agree with the State. False imprisonment consists of the unlawful restraint against his or her will of an individual's personal liberty. Any intentional conduct which results in the placing of a person in a position where he or she cannot exercise his or her will in going where he or she may lawfully go may constitute false imprisonment. Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001); Dangberg v. Sears, Roebuck & Co., 198 Neb. 234, 252 N.W.2d 168 (1977); Schmidt v. Richman Gordman, Inc., 191 Neb. 345, 215 N.W.2d 105 (1974). "Restrain" means to restrict a person's movement in such a manner as to interfere substantially with his or her liberty by means of force, threat, or deception. Neb. Rev. Stat. § 28-312 (Reissue 1995). 

    Abbott's brief argues that certain evidence proves he never successfully "restrained" Dorothy and Robin. For instance, Abbott recounts evidence that "Dorothy Huffman ran out the back door, but she was unable to climb the fence in the back yard, so she 'went (sic) to come back in' the house." Brief for appellant at 11. In addition, "Dorothy Huffman later left the residence using the front door, and she returned again on her own." Id. "Later, while Mr. Abbott was fetching a glass of water for Dorothy, Robin left through the front door." Id. Abbott also testified at trial that he did not throw Dorothy into the chair and force her to remain there, did not drag Dorothy by her hair back into the house after she attempted to leave, and did not threaten to kill Dorothy when Robin left the house. 

    Despite Abbott's evidence concerning what he did not do and what liberties the two women were able to exercise, other uncontroverted evidence shows that Abbott did in fact restrain Robin and Dorothy within the definition of § 28-312. We need not discuss each instance, given that there was only a single count regarding each woman. Therefore, we outline the clearest (and undisputed) example of this restraint. Specifically, Robin and Dorothy testified that at one point, Abbott "threw" Dorothy onto the bed and "pushed" Robin into the bedroom and then slammed the door behind them. Abbott does not deny doing this, nor is there other evidence contradicting Robin's and Dorothy's testimonies. While Abbott also argues that "[b]oth Dorothy and Robin Huffman came back out of the bedroom voluntarily," brief for appellant at 11, this does not change the fact that Abbott successfully restrained them under terrorizing circumstances or circumstances exposing them to the risk of serious bodily injury, even if for a short period of time. The false imprisonment must end at some point, and the fact that Dorothy and Robin did eventually leave the bedroom means just that--they eventually left the bedroom. It does not mean that they were not "put" in there against their will and that they were not restrained. In short, there is uncontroverted evidence that on at least one occasion during this particular incident, Abbott restrained both women under terrorizing circumstances--telling them to "stay there" in the bedroom while holding a butcher knife.

    Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he or she wishes to have the benefit of a lesser-offense instruction. State v. Becerra, 261 Neb. 596, 624 N.W.2d 21 (2001);State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000); State v. Parks, 253 Neb. 939, 573 N.W.2d 453 (1998). The testimony of the bedroom incident is uncontroverted, and as a result, there is no rational basis upon which a jury could convict Abbott of attempted false imprisonment and acquit him of false imprisonment. Thus, an instruction on attempted first degree false imprisonment was not warranted by the evidence. The trial court was correct in refusing to give Abbott's proposed instructions.

Jury Instruction on Attempted Terroristic Threats 
and Attempted Third Degree Assault.

    Abbott argues that the trial court should have instructed the jury as to attempted terroristic threats or attempted third degree assault. Abbott's brief recites the requested instruction on attempted third degree assault, but the assignment of error states only that "[t]he trial court erred in failing and refusing to instruct the jury on attempted terroristic threat and attempted false imprisonment of Robin Huffman . . . ." Errors must be assigned and argued in the party's brief to be considered by an appellate court. In re Interest of B.M., 239 Neb. 292, 475 N.W.2d 909 (1991) (errors which are argued on appeal but not assigned will not be considered by appellate court). The assignment does not address attempted third degree assault, and neither will we.

    In support of his argument that he was entitled to a lesser-included offense instruction for attempted terroristic threats, Abbott claims that his testimony was sufficient to show that Robin stabbed him in the ear, that his possession of any knives was defensive, and that he either handed the knives to Dorothy or broke them in the wall so that they could not be used. When reciting the elements of terroristic threats, Abbott includes a fourth element which does not appear in the statute--that the defendant was acting in self-defense. Abbott's argument concerning the requested instruction focuses entirely on this "element," concluding that because there is evidence that Abbott might have acted in self-defense, the jury should have been instructed on "attempted terroristic threats." Brief for appellant at 14.

    We first compare the pertinent statutory elements to assess whether attempted terroristic threats is a lesser-included offense of terroristic threats. A person commits terroristic threats if he or she threatens to commit any crime of violence "(a) [w]ith the intent to terrorize another . . . or (c) [i]n reckless disregard of the risk of causing such terror or evacuation." Neb. Rev. Stat. § 28-311.01 (Reissue 1995). The elements of attempted terroristic threats would be intentionally engaging in conduct which would constitute a substantial step in threatening to commit a crime of violence with the intent to terrorize or with reckless disregard of causing such terror. We conclude that one cannot commit terroristic threats without also attempting to do so, and thus attempted terroristic threats is a lesser-included offense of terroristic threats, satisfying the first prong of the elements test in State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).

    Next, we look to the evidence to see if it produces a rational basis for acquitting Abbott of terroristic threats and convicting him of attempted terroristic threats. The Nebraska Supreme Court in State v. Schmailzl, 243 Neb. 734, 739, 502 N.W.2d 463, 467 (1993), has determined that "threaten" is a word of "common usage and understanding" and may be defined in its ordinary sense. Any number of definitions may apply in a given case. According to Schmailzl, "'[a] communication is a threat if it carries the promise of evil under such circumstances that a reasonable person receiving the communication would believe that such was to ensue at the hands of the communicator, or his allies,'" "'[t]he word "threat" . . . means a communicated intent to inflict physical or other harm on any person or on property,'" and "the word 'threat' is an 'ordinary, everyday [word]' whose meaning is plain to a 'person of normal intelligence and education.'" Id. at 738-39, 502 N.W.2d at 466. Clearly, threats may be made under varied circumstances and need not be verbal, as a threat can also be by conduct alone. See State v. Tillman, 1 Neb. App. 585, 511 N.W.2d 128 (1993).

    A "crime of violence" is an act which injures or abuses through use of physical force and which subjects the actor to punishment by public authority. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986) (construing spousal privilege statute providing that privilege could not be claimed in criminal case where crime charged was "crime of violence"), overruled on other grounds,State v. Chambers, 233 Neb. 235, 444 N.W.2d 667 (1989). 

    The crime of making terroristic threats does not require an intent to execute the threats made or that the recipient of the threat be terrorized; rather, § 28-311.01 and cases require that the perpetrator have the intent to terrorize the victim as a result of the threat or evidence a reckless disregard of the risk of causing such terror. State v. Rodriguez, 6 Neb. App. 67, 569 N.W.2d 686 (1997). Therefore, "'the unavoidable message of the express language contained in the statute is that one may not communicate to another person a threat to commit a crime of violence . . . without violating the statute.'" State v. Schmailzl, 243 Neb. at 738, 502 N.W.2d at 466, quoting Lanthrip v. State, 235 Ga. 10, 218 S.E.2d 771 (1975).

    As discussed above, Abbott disputes nearly all of Robin's and Dorothy's testimonies about his conduct during this incident. Again, however, if we focus on a single event, it is clear that under the second prong of Williams, an attempted terroristic threat instruction was not required. Abbott does not dispute that he stabbed a knife into the wall near Robin's head, an incident we describe in some detail in the factual background section of this opinion. While Abbott's brief argues that he possessed the knife in self-defense, such fact only goes to whether there was a terroristic threat, i.e., no intent to terrorize or simply that no threat was made, rather than constituting the factual basis for giving an attempted terroristic threats jury instruction. Further, even if the jury could not satisfy itself as to Abbott's intent to terrorize, his stabbing the wall near Robin's head constitutes a threat to commit a crime of violence (a stabbing resulting in an assault or a murder) and evidences reckless disregard of the risk of causing terror in Robin. 

    Given the evidence, there is no rational basis upon which a jury could convict Abbott of attempted terroristic threats and acquit him of terroristic threats. The court was correct in refusing the request for an instruction concerning attempted terroristic threats.

Specific Crime of Violence in Terroristic Threats Charge.

    Abbott claims that his due process rights were violated by the trial court's failure to instruct the jury on the specific crime of violence threatened under the terroristic threats charge. According to Abbott's brief at 17-18, "[i]t is not enough to simply say any crime of violence generically, the crime of violence must be specified and each element prove[d]."

    It would be nonsensical to require that each element of the "crime of violence" be proved. If someone threatens to commit murder but does not actually kill another, he may be prosecuted for terroristic threats but not for murder. If each element of murder was proved, then there would be a murder, not a terroristic threat. No one could ever be convicted of terroristic threats if the State were required to prove each element of any specified "crime of violence." We reject this obviously flawed argument.

    Abbott argues that because Nebraska has no laundry list of violent crimes in its definitional code, the jury was "left to speculate as to what is a crime of violence in general and what specific crime of violence the defendant threatened to commit." Brief for appellant at 17.

    The trial court instructed the jury using the definition adopted in State v. Palmer, 224 Neb. 282, 294, 399 N.W.2d 706, 717 (1986), overruled on other grounds, State v. Chambers, 233 Neb. 235, 444 N.W.2d 667 (1989): A "'crime of violence' is an act which injures or abuses through the use of physical force and which subjects the actor to punishment by public authority." This definition is clear, succinct, and required by controlling Nebraska Supreme Court authority. The instruction allows the jury to correctly decide whether Abbott threatened to commit a crime of violence.

    Abbott also argues under this assignment that "[t]he underlying crime of violence, based on the lesser included instruction, was third degree assault, to-wit: 1) Mr. Abbott threatened Robin Huffman; 2) in a menacing manner." Brief for appellant at 18. According to Abbott, "by charging terroristic threats, the State bootstraps the original misdemeanor assault into a felony," making Abbott improperly subject to felony penalties for a misdemeanor offense. Id. While the original charge was terroristic threats, a felony, and third degree assault was a lesser-included offense upon which the trial court instructed, but not necessarily the crime of violence involved in the terroristic threats--there is a bigger problem with this argument. This issue was resolved against Abbott in State v. Schmailzl, 243 Neb. 734, 742, 502 N.W.2d 463, 468 (1993):

    Although Schmailzl questions the "fairness" in the Nebraska Legislature's making a terroristic threat a felony, while the threatened crime of violence, if committed, would be a misdemeanor, classification of criminal conduct as a felony or misdemeanor is, generally, within the Legislature's discretion. A legislature has discretion in determining what measures are reasonably necessary to protect public health, safety, and welfare, and a court, in reviewing a legislative act, should not substitute its own judgment for that of the legislature merely because the court may believe that the legislature acted unwisely or improvidently. 

There was no error in the instruction on terroristic threats.

Denial of Continuance to Secure New Counsel.

    In his third assignment of error, Abbott argues that the trial court erred in failing to grant a continuance so that Abbott could secure new counsel. Near the end of trial, Abbott addressed the court concerning alleged misconduct of his attorney: 

While we were setting [sic] here on the last testimony of Dorothy Hussman (sic) -- Huffman, I was trying to point something out to my attorney and he reached over and grabbed me by the arm in an agrily (sic) fashion and told me not to touch that. And the results of that is -- been some slight bruising of my wrist. And -- uh -- I just don't think that's very ethical. And I don't appreciate it.

The attorney responded that he did grab Abbott's arm and told him not to write in a deposition, but that he could not have caused any bruising. 

    In addition, Abbott told the trial judge that his attorney had been advised of, but had not pursued, some evidence of a 911 call made from a witness' cellular telephone. Abbott said of his attorney: "I just don't feel that he's -- he's going to stand and fight for me if he's physically abusing me and he's not gathering the evidence . . . ." The trial judge responded that during the trial, Abbott's attorney had done his "utmost" to represent Abbott and that the judge had not witnessed any assaultive or injurious behavior. Although the court instructed Abbott on his right to testify and Abbott confirmed that he understood that right and that he had also discussed the issue with his attorney, Abbott requested time to consult with an attorney before deciding whether to take the stand. The court made a telephone available to Abbott during a 20-minute recess, and Abbott spoke with an attorney who suggested that he request a continuance to secure new counsel. The trial court overruled Abbott's motion for a continuance, noting again that Abbott's attorney had been doing his "utmost" to represent him.

    A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. A judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. State v. Gutierrez, 260 Neb. 1008, 620 N.W.2d 738 (2001).

    Abbott claims that the court abused its discretion in allowing only a 20-minute recess to secure replacement counsel and in refusing a continuance. Further, citing State v. Santos, 238 Neb. 25, 468 N.W.2d 613 (1991), Abbott claims that the trial court abused its discretion because it was aware of and, in part, created the circumstances leading to the request for a continuance. 

    First, we note that in requesting a continuance, Abbott did not follow the procedure outlined in Neb. Rev. Stat. § 25-1148 (Reissue 1995), which requires that the motion be written and supported by affidavit. A failure to comply with § 25-1148 is a factor to be considered in determining whether a trial court abused its discretion. State v. Santos, supra; State v. Matthews, 8 Neb. App. 167, 590 N.W.2d 402 (1999).

    Santos noted that courts have demonstrated a willingness to find error in a trial court's refusal to grant a continuance where the trial court itself is partially responsible for defense counsel's lack of preparation, citing Swann v. City of Huntsville, 471 So. 2d 1268 (Ala. App. 1985). In Santos, the trial court's 41-day delay in ruling on a motion of defendant's chosen attorney to withdraw left the attorney in a quandary as to his duties and Santos in doubt as to whom he should consult. As a result, the Supreme Court found an abuse of discretion in the denial of the motion to continue. 

    In Abbott's case, the trial court did nothing to create the circumstances which led to the motion for a continuance. Abbott also cites Santos for the rule that "continuances must be granted to allow defense counsel adequate time to prepare a defense." Brief for appellant at 20. Abbott fails to cite the remainder of that rule: "[W]hen the defendant's own actions or inactions are responsible for that lack of preparation, this court has refused to hold the failure to grant a continuance to be an abuse of discretion, even where defense counsel has had little time to prepare." State v. Santos, 238 Neb. at 28-29, 468 N.W.2d at 615. In any event, this is essentially meaningless because the record does not show a lack of preparation by counsel.

    Finally, the record shows that Abbott's attorney zealously and, as far as this record reveals, competently represented him both before and after Abbott accused him of assaulting him. We will not detail examples of the skill and preparation that trial counsel brought to this proceeding. Suffice it to say that the record shows that Abbott's attorney was well prepared, understood the case, made appropriate and strenuous objections, and generally served Abbott's interests in a professional and competent manner.

    The trial judge also felt these things about counsel's representation and, moreover, he believed that Abbott's assault claim was fabricated and said so on the record: "Well, I have some serious doubts about the validity of that complaint. I didn't notice any kind of a problem at the counsel table during that trial yesterday. And I know that you rolled up your sleeve and showed me your -- your wrist." Later, the judge said again: 

So, just for the sake of the record, I really think that Mr. Abbott's complaint is bogus. And, you know, I didn't see any misconduct by [your attorney] in -- there wasn't any kind of a -- a hustling or bustling at the counsel table, nothing was happening as far as I could see. And it's -- it's so easy to fabricate a little redness on the wrist.

    In addition, the trial judge believed that Abbott was attempting to stall the trial: "I can't help but to think that you're manipulating this -- this trial and trying to avoid this trial coming to a conclusion. And I'm not going to let you do that." The right to counsel accorded defendants in criminal trials cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. State v. Fletcher, 8 Neb. App. 498, 596 N.W.2d 717 (1999).

    As for Abbott's claim that his attorney did not adequately represent him because he declined to introduce testimony which Abbott deemed important, we note that the decision to call or not to call particular witness, made by counsel as matter of trial strategy, even if that choice proves unproductive, will not, without more, sustain a finding of ineffectiveness of counsel. SeeState v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994). Given the rule that the attorney may choose reasonable trial strategy, the trial court is not required to grant a continuance merely because the defendant, untrained and inexperienced in trial advocacy, disagrees with strategic choices made by his appointed counsel, who is trained and experienced in trial advocacy. 

    Once counsel has been appointed for an indigent defendant, the defendant must remain with the appointed counsel unless (1) the defendant knowingly, voluntarily, and intelligently waives the right to counsel and chooses to proceed pro se; (2) the counsel appointed to the defendant is incompetent, in which case new counsel is to be appointed; or (3) the defendant chooses to retain private counsel. State v. Sack, 239 Neb. 690, 477 N.W.2d 921 (1991). Retaining private counsel does not compel the grant of continuance for an accused previously represented by appointed counsel. Id. None of the three circumstances from Sack were present here, and therefore, it naturally follows that the trial judge did not err in refusing to grant a continuance for Abbott to secure new counsel. For numerous reasons, this assignment of error is rejected.

Motion for Mistrial.

    During the trial, the prosecutor informed the judge in chambers that he had received a report from a victim/witness program worker that several jurors might have seen Robin crying in the hallway during a break. The judge questioned the person who made the report, and she told the judge that Robin had not spoken to any of the jurors.

    Defense counsel requested that the judge voir dire the jurors individually concerning the contact, and the judge agreed. Six jurors told the judge that they saw Robin crying, five jurors told the judge that they had seen Robin in the hall but did not say they had seen her crying, one juror heard Robin having a conversation in the bathroom but did not see her--"And there was no conversation that had anything to do with -- other than just, I'll-be-out-in-a-minute kind of thing," and one juror told the judge that he had not seen her at all. All of the jurors stated that these experiences would not affect their ability to serve impartially. The trial judge made the following finding after voir dire: 

The Court is satisfied from interviewing these jurors that they did see the witness, Robin Huffman, yesterday afternoon in the reception area. And that Ms. Huffman was crying. The Court specifically finds that this experience does not affect the ability of these jurors to be fair and impartial. No one spoke to Ms. Huffman and Ms. Huffman did not speak to any of them.

    When an improper communication with a juror or jurors is shown to have taken place in a criminal case, a rebuttable presumption of prejudice arises and the burden is on the State to prove that the communication was not prejudicial. Simants v. State, 202 Neb. 828, 277 N.W.2d 217 (1979). However, in cases where the contact with the witnesses is minimal, the presumption is overcome. State v. LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984). This contact was minimal, and nonverbal.

    Abbott's attorney suggested in his motion before the trial court that the contact was sufficient to warrant a new trial: "I would suggest just the -- the site [sic] of her crying profusely was enough, it was -- it was like testimony, and that, therefore, that was sufficient for the jury to have been prejudiced by what they saw."

    The State counters that the jurors' brief encounters in the hallway did not prejudice Abbott's right to a fair trial and impartial jury, as only a few jurors saw Robin crying and, as the State argued in response to Abbott's mistrial motion before the trial court, "I think the jury saw plenty of that [crying] within the courtroom." The jurors testified that their impartiality was not affected by the brief encounter, and the trial judge, having observed the jurors' demeanor and having heard the jurors testify, believed this to be the case.

    The decision whether to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of an abuse of discretion. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). The record shows that the contact was minimal enough to overcome any presumption of prejudice, and no prejudice to Abbott has been affirmatively shown. No one could expect that this trial would be devoid of emotion. The trial judge did not abuse his discretion in refusing to grant a mistrial due to juror contact with Robin outside the courtroom.

Ineffective Assistance of Counsel.

    To sustain a claim of ineffective assistance of counsel as a violation of the state and federal Constitutions, a defendant must show (1) that counsel's performance was deficient and (2) that such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000).

    A claim of ineffective assistance of counsel need not necessarily be dismissed merely because it is made on direct appeal; the determining factor is whether the record is sufficient to adequately review the question. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001); State v. Cody, 248 Neb. 683, 539 N.W.2d 18 (1995).

    Abbott lists six grounds for his ineffective assistance of counsel claim. The first three grounds involve three witnesses whom Abbott says could have testified regarding the ownership of the property in dispute between Robin and Abbott. Abbott claims the testimony of these witnesses would "directly contradict [Robin's] testimony and question her credibility." Brief for appellant at 25.

    Whether Robin or Abbott owned the disputed Monte Carlo is a collateral matter and has no bearing on whether Abbott committed terroristic threats or false imprisonment. 

A witness may not be impeached by producing extrinsic evidence of collateral facts to contradict the first witness' assertions about those facts. A witness' prior inconsistent statement may be used to impeach the witness only on matters relevant to and otherwise admissible on some issue in the case tried.

McCune v. Neitzel, 235 Neb. 754, 760, 457 N.W.2d 803, 808-09 (1990). Evidence of who really owned the Monte Carlo was not relevant, as it did not tend to prove or disprove a matter in issue. See Langfeld v. Department of Roads, 213 Neb. 15, 328 N.W.2d 452 (1982). The testimony would have been inadmissible. Counsel's performance was not deficient because he did not attempt to introduce plainly irrelevant testimony.

    The next claim is that "[t]rial counsel failed to obtain the medical records of Robin Huffman to show that she had a medical disorder, which caused her to bruise very easily without being struck by someone." Brief for appellant at 26. Abbott claims this evidence would have "shown that her bruises were not caused by Abbott." Id. There is no evidence in the record or offer of proof of any such disorder. Thus, this claim is not ripe for review upon direct appeal.

    Abbott's fifth ground is that trial counsel failed to subpoena and interview a Darvin Rhodd, who supposedly could have testified how upset Robin became when Abbott told her he was not going to marry her. Abbott claims that Rhodd could also testify to other instances in which Robin had attacked Abbott. According to Abbott, this evidence would have "directly contradicted Huffman's testimony and questioned her credibility." Id. Under Neb. Evid. R. 608, Neb. Rev. Stat. § 27-608 (Reissue 1995):

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in section 27-609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness be inquired into on cross-examination of the witness (a) concerning his character for truthfulness or untruthfulness . . . .

Abbott has not shown that Robin was ever convicted of a crime involving her alleged attacks on him. Robin's past behavior with Abbott, within limits we need not discuss here, was certainly appropriate for cross-examination of her, but Rhodd's testimony would be extrinsic evidence of Robin's conduct. Section 27-608 makes such testimony inadmissible. Moreover, there is no evidence in the record concerning Rhodd, so the issue of trial counsel's tactics concerning Rhodd is not ripe upon direct appeal for review.

    Finally, Abbott claims that after he reported his attorney's alleged assault, he expressed his concern to the court regarding his trial counsel's ability to effectively assist him through the trial. While a defendant who shows that a conflict of interest actually affected the adequacy of his or her representation need not demonstrate prejudice, in order to establish ineffective assistance of counsel, such conflict of interest must be shown to have resulted in counsel's conduct detrimental to the defense. State v. Narcisse, 260 Neb. 55, 615 N.W.2d 110 (2000). As we stated previously herein, the record shows that counsel continued to zealously serve Abbott's best interests even after Abbott accused him of assault. Abbott has not made the required showing of detriment to his defense, even if we were to agree with Abbott that there was a conflict of interest, a matter we need not decide.

Motion for New Trial.

    Abbott claims that the trial court erred in overruling his motion for a new trial. According to Abbott, the grounds for a new trial were that the "trial counsel rendered ineffective assistance in failing to call certain witnesses, the trial court erred in overruling the Motion for Continuance, the trial court erred in refusing to grant the mistrial due to the improper [juror] contact." Brief for appellant at 23. We have, of course, already addressed these individual claims and found them wanting. Consequently, those same meritless claims cannot give rise to a finding by this court that the trial court erred in not giving Abbott a new trial. 

    In order for a new trial to be granted, it must be shown that a substantial right of the defendant was adversely affected and that the defendant was prejudiced thereby. State v. Mahlin, 236 Neb. 818, 464 N.W.2d 312 (1991). There is no such showing. An appellate court will affirm the district court's denial of a motion for new trial absent an abuse of discretion. Zerr v. Zerr, 7 Neb. App. 885, 586 N.W.2d 465 (1998). There was no abuse of discretion in denying the motion.

Insufficient Evidence to Support Convictions.

    Abbott claims that he was wrongfully convicted because the State's evidence was insufficient to support the charges. The burden in a criminal proceeding is on the State to produce proof beyond a reasonable doubt of every element of a charged offense. State v. Sims, 258 Neb. 357, 603 N.W.2d 431 (1999). Only where evidence lacks sufficient probative value as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt. Id. In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).

    The evidence against Abbott, viewed in the light most favorable to the State, is overwhelming. There is evidence that Abbott restrained both Robin and Dorothy by locking them in a bedroom, pulling Dorothy into the house by her hair, throwing both of them on the floor, and throwing Dorothy into a chair. Under our standard of review, clearly, there was ample evidence for a jury to conclude that Abbott was guilty of false imprisonment.

    The same is true for the conviction of terroristic threats against Robin. There is evidence that Abbott threatened to kill Dorothy when she left the house and that Abbott threatened Robin with a knife. Terroristic threats were readily proved, when we operate from the above standard of review as we must.

    The evidence, viewed in the light most favorable to the State, was sufficient for the jury to convict Abbott of terroristic threats against Robin and false imprisonment of both Dorothy and Robin.

Excessive Sentences.

    Abbott claims that the trial court abused its discretion in imposing excessive sentences totaling 5 to 15 years' imprisonment. It is well established that an appellate court will not disturb sentences that are within statutory limits, unless the district court abused its discretion in establishing the sentences. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001). In Decker, the court stated:

In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. . . . [T]he appellate court must determine whether the sentencing court abused its discretion in considering and applying these factors as well as any applicable legal principles in determining the sentence to be imposed.

Id. at 398, 622 N.W.2d at 917.

    Abbott claims that applying these factors, he was excessively punished. For first degree false imprisonment, a Class IIIA felony, the maximum imprisonment is 5 years. Terroristic threats is a Class IV felony, and the maximum is 5 years' imprisonment. The trial court sentenced Abbott to consecutive sentences of 20 months' to 5 years' imprisonment for each conviction, with a total sentence of 60 months' to 15 years' imprisonment. 

    The sentences are clearly within the statutory limits, and the trial judge did not abuse his discretion in imposing them. The court noted that it considered the presentence investigation report before determining Abbott's sentences. That report shows that Abbott has an extensive criminal history, including, among other charges, assault, several counts of battery, fleeing or attempting to elude an officer, obstructing police (two felony counts), discharging a firearm, resisting arrest with violence, disorderly conduct, and violation of a protection order. Abbott's recorded history of violence extends as far back as 1989, when he was convicted in Georgia of simple assault, simple battery, and criminal trespass.

    The trial court also referred to Robin's injuries, and the presentence report contains victim statements indicating that both Dorothy and Robin are afraid that Abbott might hurt them again. Given Abbott's criminal history and the violent nature of these offenses, the trial court was well within its discretion in imposing the sentence it did on each count.

CONCLUSION

    We affirm the trial court's judgment in every respect.