State v. Tucker

State of NebraSka , appellee , v.
D wight l. tucker , appellaNt.
764 N.W.2d 137
Filed March 31, 2009. 	No. A-08-623.
1. Jurisdiction: Appeal and Error. When a jurisdictional question does not involve
a factual dispute, an appellate court determines the issue as a matter of law.
2. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of
ineffective assistance of counsel is a mixed question of law and fact.
3. Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, an
appellate court will not set aside a guilty verdict in a criminal case where such
verdict is supported by relevant evidence. Only where evidence lacks sufficient
probative force as a matter of law may an appellate court set aside a guilty verdict
as unsupported by evidence beyond a reasonable doubt.
4. Sentences: Appeal and Error. An appellate court will not disturb a sentence
imposed within the statutory limits absent an abuse of discretion by the trial
court.
5. Indictments and Informations. It is not necessary to refile an information
amended by interlineation where the cause had never been dismissed and the
information remained in the files of the court during the entire proceeding.
6. Courts: Pleas: Self-Incrimination. A court must inform a defendant of the privi-
lege against self-incrimination before it can accept a guilty or no contest plea.
7. Constitutional Law: Effectiveness of Counsel. Defense counsel bears the
primary responsibility for advising a defendant of his or her right to testify or
not to testify, of the strategic implications of each choice, and that the choice is
ultimately for the defendant to make.
8. Courts: Self-Incrimination. Absent a statute providing otherwise, the trial judge
is not required to warn a defendant represented by counsel of his or her privilege
against self-incrimination, except that the trial judge may in his or her discretion
impart such a warning.
9. Effectiveness of Counsel: Time: Appeal and Error. Claims of ineffective assist-
ance of counsel raised on direct appeal by the same counsel who represented the
defendant at trial are premature and will not be addressed on direct appeal.
10. Convictions: Weapons: Intent. When the underlying felony for the use of a
weapon charge is an unintentional crime, the defendant cannot be convicted of
use of a deadly weapon to commit a felony.
11. Criminal Law: Trial. A trial judge sitting without a jury is not required to articu-
late findings of fact or conclusions of law in criminal cases.
12. Criminal Law: Trial: Judges: Presumptions. It will be presumed in a jury-
waived criminal trial that the judge was familiar with and applied the proper rules
of law unless it otherwise clearly appears.
13. Convictions: Evidence: Appeal and Error. A conviction will be affirmed, in
the absence of prejudicial error, if the evidence admitted at trial, viewed and
construed most favorably to the State, is sufficient to support the conviction.
StAte v. tuCker 	487
Cite as 17 Neb. App. 487
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

14. Criminal Law: Words and Phrases. A person commits terroristic threats if
he or she threatens to commit any crime of violence with the intent to terror-
ize another.
15. ____: ____. 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 pub-
lic authority.
16. ____: ____. A defendant does not have to actually commit a crime of violence,
because it is the threat of violence which is at the heart of the crime of terroris-
tic threats.
17. ____: ____. For purposes of the offense of terroristic threats, a threat may be
written, oral, physical, or any combination thereof.
18. Intent: Words and Phrases. A direct expression of intention by the actor is not
required because the intent with which an act is committed involves a mental
process and intent may be inferred from the words and acts of the defendant and
from the circumstances surrounding the incident.
19. Intent: Circumstantial Evidence: Proof. Whether a defendant possesses the
requisite state of mind is a question of fact and may be proven by circumstan-
tial evidence.
20. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the controversy before it.
21. Statutes: Sentences. the statute on indeterminate sentences does not require that
a minimum term be different from a maximum term.
22. ____: ____. there is no statutory requirement that a sentence for either a Class II
or a Class III felony have a minimum term less than the maximum term.
23. Sentences. 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.
24. ____. When imposing a sentence, a sentencing judge should consider the defend-
ant’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.
25. ____. A sentence validly imposed takes effect from the time it is pronounced.
26. ____. When a valid sentence has been put into execution, the trial court cannot
modify, amend, or revise it in any way, either during or after the term or session
of court at which the sentence was imposed.
27. Judgments: Records. When there is a conflict between the record of a judgment
and the verbatim record of the proceedings in open court, the latter prevails.
Appeal from the District Court for Douglas County: M arloN
a. polk, Judge. Affirmed.
thomas C. riley, Douglas County Public Defender, and
timothy P. Burns for appellant.
Dwight L. tucker, pro se.
488 	17 NeBrASkA APPeLLAte rePOrtS

Jon Bruning, Attorney General, and George r. Love for
appellee.
irwiN, carlSoN, and caSSel, Judges.
caSSel, Judge.
INtrODuCtION
Following a bench trial, the district court convicted Dwight
L. tucker of manslaughter, use of a deadly weapon to commit
a felony, and being a felon in possession of a deadly weapon.
the court sentenced tucker to consecutive sentences of impris-
onment and set the same maximum and minimum term for
each sentence. We reject tucker’s assertion that amending a
duly filed information by interlineation deprives a district court
of jurisdiction—an assertion that borders on the frivolous. We
conclude that the court had no duty to advise tucker of his
privilege against self-incrimination and that tucker’s argument
that his counsel provided ineffective assistance is premature.
We further conclude that evidence supports the court’s find-
ing of an intentional felony upon which to base the use of a
weapon conviction and that the court did not abuse its discre-
tion in sentencing tucker. We affirm.
BACkGrOuND
the State charged tucker with murder in the first degree
(both premeditated murder and felony murder while attempt-
ing to perpetrate a robbery), use of a deadly weapon to
commit a felony, and possession of a deadly weapon by a
convicted felon. the district court conducted a bench trial,
and the parties stipulated that tucker was a convicted felon
in Nebraska at the time the charged crimes were alleged to
have occurred.
the evidence showed that during the early morning hours of
June 2, 2007, the paths of tucker and the victim—strangers to
each other—intersected. the victim had driven his car to a gas
station located at 13th and Vinton Streets in Omaha, Nebraska,
and used the outside pay telephone to call his girlfriend.
Meanwhile, tucker had agreed to accompany his cousin, Jerry
Valentine, on a drug deal to make sure nothing happened
to Valentine.
StAte v. tuCker 	489
Cite as 17 Neb. App. 487

Valentine drove tucker to the gas station at 13th and Vinton
Streets and handed tucker a gun in case somebody tried to
rob Valentine. tucker testified that he and Valentine walked
up to the person at the pay telephone, that tucker had the gun
pointed toward the ground, and that Valentine said “what’s up.”
tucker testified that the victim ignored Valentine, immediately
looked at tucker, and asked, “What you got a gun for? What,
you going to shoot me?” tucker testified that he did not say
anything and that the victim pushed tucker back and started
coming toward him. tucker backed away from the victim. He
testified, “everything just happened so quick. He tried to reach
for the gun and tried to hit me and I just — I pulled my arm
back and it just went off.” tucker explained that he did not
know that the gun was cocked and loaded. He testified that he
was shocked and scared, that he panicked, and that he ran off
behind Valentine. Surveillance footage showed that two men
approached the victim and that the victim acted in a confron-
tational manner toward tucker, who appears to be holding a
gun pointed to the ground. the surveillance footage from the
rear of the gas station showed the two men running away from
the gas station. the victim suffered a gunshot wound to his
lower abdomen, exiting through his lower back. He later died
at the hospital.
the district court convicted tucker of manslaughter, use of a
deadly weapon to commit a felony, and possession of a deadly
weapon by a felon. the court sentenced tucker to imprison-
ment of 20 to 20 years for count I (manslaughter), 10 to 10
years for count II (use of a deadly weapon), and 4 to 4 years
for count III (possession of a deadly weapon).
tucker timely appeals.
ASSIGNMeNtS OF errOr
tucker’s counsel alleges that the court erred in (1) finding
tucker guilty of use of a firearm to commit a felony because
the evidence was insufficient as a matter of law, (2) imposing
excessive sentences, and (3) imposing the same term of years
on the minimum and maximum sentences.
In a supplemental pro se brief, tucker alleges that (1) the
court lacked subject matter jurisdiction, (2) the court abused
490 	17 NeBrASkA APPeLLAte rePOrtS

its discretion by failing to advise him of his privilege against
self-incrimination, and (3) his counsel provided ineffective
assistance in failing to advise him of the privilege against
self-incrimination.
StANDArD OF reVIeW
[1] When a jurisdictional question does not involve a factual
dispute, an appellate court determines the issue as a matter of
law. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
[2] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. State v. Bazer, 276
Neb. 7, 751 N.W.2d 619 (2008).
[3] On a claim of insufficiency of the evidence, an appellate
court will not set aside a guilty verdict in a criminal case where
such verdict is supported by relevant evidence. Only where evi-
dence lacks sufficient probative force as a matter of law may
an appellate court set aside a guilty verdict as unsupported by
evidence beyond a reasonable doubt. State v. Kuhl, 276 Neb.
497, 755 N.W.2d 389 (2008).
[4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Davis, 276 Neb. 755, 757 N.W.2d
367 (2008).
ANALYSIS
Jurisdiction.
[5] tucker seems to contend that when a duly filed informa-
tion is thereafter amended by interlineation, the court clerk
must again make an endorsement of the date of filing—even
though the document has continually been on file. tucker
cites no authority for this proposition, and we are not aware
of any such authority. Indeed, at least one appellate court has
specifically decreed to the contrary. See French et al. v. State,
17 Okla. Crim. 542, 190 P. 707 (1920). We agree that it is not
necessary to refile an information amended by interlineation
where the cause had never been dismissed and the information
remained in the files of court during the entire proceeding.
See id.
the case of White v. State, 28 Neb. 341, 44 N.W. 443 (1889),
which tucker cites as the sole authority for his argument, bears
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Cite as 17 Neb. App. 487

no resemblance to the instant case. In White, the complaint
before the magistrate for preliminary hearing did not name the
defendant in the substance of the allegations but mentioned him
and another individual in the title of the document. In the case
before us, the information previously filed in the district court
on July 18, 2007, was amended by interlineation to conform to
the complaint (also amended by interlineation) in the county
court. We conclude that the district court acquired jurisdiction
in this case and that tucker’s argument to the contrary borders
on the frivolous.
Advisement Regarding Privilege
Against Self-Incrimination.
[6] the state and federal Constitutions provide that no
person shall be compelled to give evidence against himself
or herself of an incriminating nature. State v. Robinson, 271
Neb. 698, 715 N.W.2d 531 (2006). tucker testified in his own
behalf at trial, and he now argues that the court abused its
discretion in not advising him of his privilege against self-
incrimination. Of course, a court must inform a defendant of
the privilege against self-incrimination before it can accept a
guilty or no contest plea. See State v. Irish, 223 Neb. 814, 394
N.W.2d 879 (1986). But tucker has not cited any cases, nor
have we found any, imposing a duty upon the trial court to
advise a defendant proceeding to trial of his or her privilege
not to testify.
Case law has imposed no duty on the court to advise a
defendant of his or her right to testify. the State’s brief directs
our attention to State v. El-Tabech, 234 Neb. 831, 836, 453
N.W.2d 91, 95 (1990), where the Nebraska Supreme Court
quoted the following holding from the Ninth Circuit: “‘[t]he
court has no duty to advise the defendant of his right to tes-
tify, nor is the court required to ensure that an on-the-record
waiver has occurred.’” (Quoting U.S. v. Martinez, 883 F.2d
750 (9th Cir. 1989), vacated on other grounds 928 F.2d 1470
(9th Cir. 1991), and citing U.S. v. Bernloehr, 833 F.2d 749
(8th Cir. 1987).) the determination of whether the defendant
will testify is an important part of trial strategy best left to the
defendant and counsel without the intrusion of the trial court,
492 	17 NeBrASkA APPeLLAte rePOrtS

as that intrusion may have the unintended effect of swaying the
defendant one way or the other. U.S. v. Pennycooke, 65 F.3d
9 (3d Cir. 1995). these cases speak to the right to testify, but
the State’s brief suggests that the same reasoning applies to the
right not to testify.
[7,8] Defense counsel bears the primary responsibility for
advising a defendant of his or her right to testify or not to
testify, of the strategic implications of each choice, and that
the choice is ultimately for the defendant to make. State v.
White, 246 Neb. 346, 518 N.W.2d 923 (1994), citing U.S.
v. Teague, 953 F.2d 1525 (11th Cir. 1992). Absent a statute
providing otherwise, the trial judge is not required to warn
a defendant represented by counsel of his or her privilege
against self-incrimination, except that the trial judge may in
his or her discretion impart such a warning. See 3 Charles e.
torcia, Wharton’s Criminal Procedure § 350 (13th ed. 1991).
Here, tucker was represented by counsel at trial. Had the court
independently advised tucker of his privilege against self-
incrimination during the trial, it would have run the risks of
interfering with the attorney-client relationship and of influenc-
ing tucker’s decision by injecting itself beyond its duties. this
assignment of error lacks merit.
Ineffective Assistance of Counsel.
tucker also claims that his counsel provided ineffective
assistance by failing to advise him of the privilege against self-
incrimination. In State v. Vann, 2 Neb. App. 946, 519 N.W.2d
568 (1994), the defendant was represented by different lawyers
from the Douglas County public defender’s office at trial and
on appeal, but the defendant filed two separate pro se appellate
briefs raising claims in addition to those raised by appellate
counsel. On postconviction, the defendant claimed ineffective
assistance of counsel at both the trial and appellate levels and
this court determined that the defendant raised those claims
in his pro se direct appeal briefs. relying on the reasoning
of State v. Falkner, 224 Neb. 490, 398 N.W.2d 708 (1987),
we concluded that the defendant could not use a motion for
postconviction relief to secure review of issues which were or
could have been litigated on direct appeal.
StAte v. tuCker 	493
Cite as 17 Neb. App. 487

[9] Claims of ineffective assistance of counsel raised on
direct appeal by the same counsel who represented the defend-
ant at trial are premature and will not be addressed on direct
appeal. State v. Walls, 17 Neb. App. 90, 756 N.W.2d 542
(2008). We observe that tucker was represented at trial and
in this direct appeal by the same counsel, and we conclude
that the rule from Walls should apply even though tucker
attempts to raise the issue in his pro se supplemental brief.
Had tucker’s counsel raised the issue of ineffective assistance
in his brief, we would have applied Walls and found the claim
to be premature. We find tucker’s pro se attempt to be simi-
larly premature.
Conviction for Use of Deadly Weapon
to Commit Felony.
the heart of tucker’s appeal is his contention that the court
erred in convicting him of use of a deadly weapon to commit
a felony. tucker argues that the evidence was insufficient as a
matter of law to sustain the court’s finding him guilty of use of
a deadly weapon to commit a felony. Significantly, tucker does
not challenge the conviction as a violation of his due process
rights. At the conclusion of closing arguments and after taking
the matter under advisement, the court orally stated:
So with respect to [c]ount I, the [c]ourt will find [tucker]
guilty of manslaughter by unintentionally causing the
death of [the victim] while in the commission of an
unlawful act.
With regard to [c]ount II, the [c]ourt will find [tucker]
guilty of the use of a deadly weapon to commit a felony,
that felony being an assault — at least in the first and/or
second degree on [the victim] and/or a terroristic threat
towards [the victim].
tucker argues that the court’s verdict on count II is inconsistent
with its ruling that the State failed to prove tucker intention-
ally killed the victim.
[10-12] When the underlying felony for the use of a weapon
charge is an unintentional crime, the defendant cannot be con-
victed of use of a deadly weapon to commit a felony. See State
v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002). In Pruett, the
494 	17 NeBrASkA APPeLLAte rePOrtS

Nebraska Supreme Court vacated a jury verdict convicting the
defendant of use of a weapon because the underlying felony
was manslaughter due to unintentionally causing another’s
death while committing the offense of reckless assault. Here,
the court found that tucker did not intentionally kill the victim
but that tucker used the weapon to commit an unlawful act.
the district court stated that the felony underlying the use of a
weapon conviction was first or second degree assault, or terror-
istic threats. All three of those felonies can be committed inten-
tionally and, thus, can support the use of a weapon conviction.
As tucker points out, second degree assault and terroristic
threats can also be committed recklessly and the court did not
specify that it found tucker had committed these crimes inten-
tionally and knowingly. However, a trial judge sitting without a
jury is not required to articulate findings of fact or conclusions
of law in criminal cases. State v. Franklin, 241 Neb. 579, 489
N.W.2d 552 (1992). “‘It will be presumed in a jury-waived
criminal trial that the judge was familiar with and applied the
proper rules of law unless it otherwise clearly appears.’” Id.
at 586, 489 N.W.2d at 557, quoting State v. Cowan, 204 Neb.
708, 285 N.W.2d 113 (1979). We presume that the court was
familiar with the state of the law involving the need for an
intentional felony to support a use of a deadly weapon convic-
tion, and we focus our inquiry on whether the State presented
sufficient evidence of an intentional felony.
[13-19] A conviction will be affirmed, in the absence of
prejudicial error, if the evidence admitted at trial, viewed and
construed most favorably to the State, is sufficient to support
the conviction. State v. McGhee, 274 Neb. 660, 742 N.W.2d
497 (2007). A person commits terroristic threats if he or she
threatens to commit any crime of violence with the intent to
terrorize another. Neb. rev. Stat. § 28-311.01(1)(a) (reissue
2008). 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.” State v. Palmer, 224 Neb.
282, 294, 399 N.W.2d 706, 717 (1986). robbery, murder,
sexual assault, and assault with intent to inflict great bodily
injury are crimes of violence. State v. Rye, 14 Neb. App. 133,
705 N.W.2d 236 (2005). the State sought to prove that the
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Cite as 17 Neb. App. 487

victim died while tucker tried to rob him. A defendant does
not have to actually commit a crime of violence, because it is
the threat of violence which is at the heart of the crime of ter-
roristic threats. See id. For purposes of the offense of terroristic
threats, a threat may be written, oral, physical, or any combi-
nation thereof. State v. Curlile, 11 Neb. App. 52, 642 N.W.2d
517 (2002). A direct expression of intention by the actor is not
required because the intent with which an act is committed
involves a mental process and intent may be inferred from the
words and acts of the defendant and from the circumstances
surrounding the incident. Id. Whether a defendant possesses the
requisite state of mind is a question of fact and may be proven
by circumstantial evidence. Id.
the evidence supports a finding that tucker used or pos-
sessed a gun while committing the unlawful act of terroristic
threats. the surveillance footage does not contain any sound,
but it shows tucker holding what appears to be a gun when he
approached the victim. During trial, the judge had the benefit of
a presentation and testimony by a crime laboratory technician
whose specialty is in digital imaging and forensic graphics pre-
sentations. the technician described a frame of the video that
was being displayed as follows: “If you look to that person’s
right side . . . you can see a dark black object with a sharp
angle.” Indeed, tucker testified that as he approached the vic-
tim, he held a gun pointed toward the ground in his right hand.
A reasonable fact finder could conclude that tucker intended
to terrorize—to scare—the victim by displaying a gun. tucker
and the victim then move out of the camera’s range. there is
no dispute that the victim sustained a gunshot wound to his
lower abdomen while tucker held the gun.
[20] “[t]erroristic threats cases will largely be determined
by the context of the interaction between the involved people.
thus, the angle at which a gun is pointed directly at someone
is not the determinative factor, although it is clearly an impor-
tant factor.” Id. at 57, 642 N.W.2d at 522. Based on the entry
wound, the gun obviously was not pointed at the ground at
the time that it was fired. tucker testified that the gun fired
when the victim reached for the gun and tucker pulled back
his arm. Obviously, the gun was pointed at the victim at that
496 	17 NeBrASkA APPeLLAte rePOrtS

time. But even if tucker did not have the requisite intent at
the time the gun was actually pointed at the victim, viewing
the evidence in the light most favorable to the State, a rational
finder of fact could conclude that tucker, by visibly holding
a gun while engaged in a face-to-face confrontation with the
victim, threatened the victim with a crime of violence with
the intent to terrorize the victim. the finder of fact could also
reasonably conclude that tucker intended to terrorize the vic-
tim without intending to kill him. We conclude that the law
and the evidence support the conviction for use of a deadly
weapon to commit a felony. Because the State presented suf-
ficient evidence to prove a terroristic threat, we need not con-
sider whether the evidence also supports a finding that tucker
committed an assault in the first or second degree. See State
v. Sommer, 273 Neb. 587, 731 N.W.2d 566 (2007) (appellate
court is not obligated to engage in analysis that is not necessary
to adjudicate controversy before it).
Sentencing.
Finally, tucker alleges that the court abused its discretion
by imposing excessive sentences and by imposing sentences
in which the minimum and maximum terms were the same.
the court imposed consecutive sentences of 20 to 20 years’
imprisonment for manslaughter, 10 to 10 years’ imprisonment
for use of a deadly weapon, and 4 to 4 years’ imprisonment for
possession of a deadly weapon by a felon.
Manslaughter and possession of a deadly weapon which
is a firearm by a felon are both Class III felonies. See Neb.
rev. Stat. §§ 28-305(2) and 28-1206(3)(b) (reissue 2008). A
Class III felony is punishable by a minimum sentence of 1 year
in prison and a maximum sentence of 20 years in prison, a
$25,000 fine, or both. Neb. rev. Stat. § 28-105 (reissue 2008).
use of a deadly weapon which is a firearm to commit a felony
is a Class II felony, Neb. rev. Stat. § 28-1205(2)(b) (reissue
2008), and is punishable by a minimum of 1 year’s imprison-
ment and a maximum of 50 years’ imprisonment, § 28-105.
the sentences are within statutory limits.
the district court did not abuse its discretion in fixing the
same term of years for both the minimum and maximum terms.
StAte v. tuCker 	497
Cite as 17 Neb. App. 487

the court convicted tucker of Class II and III felonies, and
Neb. rev. Stat. § 29-2204(1)(a)(ii)(A) (reissue 2008) states
that in imposing an indeterminate sentence, the court shall
[f]ix the minimum and maximum limits of the sentence to
be served within the limits provided by law for any class
of felony other than a Class IV felony, except that when a
maximum limit of life is imposed by the court for a Class
IB felony, the minimum limit may be any term of years
not less than the statutory mandatory minimum.
[21,22] In State v. Marrs, 272 Neb. 573, 723 N.W.2d 499
(2006), the defendant argued that § 29-2204 did not permit an
indeterminate sentence fixing both the minimum and maximum
terms of his sentence at life imprisonment. the Marrs court
observed that in State v. Schnabel, 260 Neb. 618, 618 N.W.2d
699 (2000), it noted that § 29-2204, the statute on indetermi-
nate sentences, “‘does not require that a minimum term be
different from a maximum term . . . .’” State v. Marrs, 272
Neb. at 577, 723 N.W.2d at 503. the Marrs court concluded
that the district court pronounced an indeterminate sentence in
which the minimum and maximum terms were the same and
that there was no statutory requirement that affirmatively stated
the minimum term for a Class IB felony sentence be less than
the maximum term. Similarly, there is no statutory requirement
that a sentence for either a Class II or a Class III felony have a
minimum term less than the maximum term.
[23,24] We also conclude that the sentences imposed were
not excessive. the appropriateness of a sentence is necessar-
ily 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. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008). When
imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (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. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008). the
presentence report shows that tucker was born in 1984. He
498 	17 NeBrASkA APPeLLAte rePOrtS

graduated from high school, attended 11⁄2 semesters of col-
lege on a basketball scholarship at Peru State College, and
had performed coursework for certificates in real estate from
randall School of real estate. It appears that tucker often had
employment when not incarcerated. According to the presen-
tence report, “tucker has an extensive criminal record dating
back to when he was first ticketed for shoplifting when he was
11 years of age in May of 1996.” Based on a 2003 conviction
for criminal trespassing, tucker was placed on probation, but
that was later revoked and he was sentenced to jail. In 2004,
tucker was convicted of burglary and possession of marijuana
with intent to deliver and sentenced to imprisonment. tucker
was on parole at the time of the instant crimes. He chose to
arm himself with a firearm, and his actions cost another young
man his life. the probation officer recommended an extensive
term of incarceration, and we find no abuse of discretion by the
court in the sentences imposed.
Finally, we address an issue of ambiguity in sentencing
because the written sentencing judgment contained sentencing
terms inconsistent with the sentence imposed by the court’s
oral pronouncement. the court orally stated, “[t]he sentence
on [c]ount II will run consecutive to [c]ount I, and the sentence
on [c]ount III will run consecutive to [c]ount II.” However,
the court’s written judgment provided that the sentence for
count I run consecutively to the sentence for count II and that
the sentence for count III run consecutively to the sentence
for count I. the written order appears to be erroneous because
under § 28-1205(3), a sentence for use of a weapon—count II
in this case—must be served consecutively to any other sen-
tence imposed.
[25-27] A sentence validly imposed takes effect from the
time it is pronounced. State v. Marrs, 272 Neb. 573, 723
N.W.2d 499 (2006). When a valid sentence has been put into
execution, the trial court cannot modify, amend, or revise it in
any way, either during or after the term or session of court at
which the sentence was imposed. Id. When there is a conflict
between the record of a judgment and the verbatim record
of the proceedings in open court, the latter prevails. State v.
Herngren, 8 Neb. App. 207, 590 N.W.2d 871 (1999). Because
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Cite as 17 Neb. App. 487

the court orally pronounced valid sentences, the oral pro-
nouncement controls.
CONCLuSION
We conclude that the district court acquired jurisdiction over
the matter and that it did not have a duty to advise tucker
of his privilege against self-incrimination. We do not con-
sider tucker’s allegation of ineffective assistance of counsel,
because it is premature. We further conclude that evidence
supports the conviction for use of a deadly weapon. Finally,
we find no abuse of discretion by the court in the sentences
of imprisonment.
affirMeD.
irwiN, Judge, concurring in part, and in part dissenting.
Although I concur with the majority opinion concerning
jurisdiction, advisement regarding the privilege against self-
incrimination, ineffective assistance of counsel, and sentencing,
I write separately because I cannot join with the majority’s
conclusion that the district court properly convicted tucker of
an unintentional killing but also of use of a weapon in the com-
mission of an uncharged and unsupported intentional crime. I
dissent from that portion of the majority opinion which affirms
tucker’s conviction on the charge of use of a deadly weapon to
commit a felony.
Initially, it bears emphasizing that the Nebraska Supreme
Court has expressly held that when the underlying felony for the
use of a weapon charge is an unintentional crime, the defendant
cannot be convicted of use of a weapon to commit a felony.
State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002). In Pruett,
the defendant was convicted of manslaughter, just like tucker,
and the manslaughter conviction was based upon a death occur-
ring during the commission of a reckless assault. In the present
case, the district court did not specify the underlying unlawful
act during which the unintentional killing occurred; however,
tucker was charged with murder in the first degree and the
court found only that the killing was unintentional.
Although the majority recognizes the holding in Pruett, the
majority does not acknowledge that the State cited this court to
no authority, and the majority also provides none, to support
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a conviction for use of a deadly weapon in the commission
of a felony where there was no intentional felony charged or
proven. Instead, the majority engages in the act of attempting
to discern whether the record would support a conviction for
an intentional felony that tucker was never charged with or
required to defend against to support the use conviction. there
is no authority for doing so, and the majority overlooks the
practical implications of doing such.
As a practical matter, it is contrary to the general tenor
of the criminal law of this state to base a conviction for use
of a deadly weapon in the commission of a felony on some
underlying intentional felony that was never charged, that
was never raised during the course of the trial, and against
which the defendant never had an opportunity to defend. See
State v. Curlile, 11 Neb. App. 52, 642 N.W.2d 517 (2002)
(information must inform accused with reasonable certainty of
charge against him so he may prepare defense and be able to
later plead judgment as bar to later prosecution). In the pres-
ent case, the crimes of terroristic threats and first or second
degree intentional assault were never mentioned until closing
arguments. the only intentional felony ever at issue during
the entire trial was the killing, and it is clear that the State
intended that to be the intentional felony upon which the use
charge was premised. that intentional felony, however, was
not proven.
Practical implications aside, and even assuming that Nebraska
law would support the novel concept of allowing the State to
convict a defendant for use of a deadly weapon in the com-
mission of a felony without the underlying felony’s ever being
raised in the charging document or during the course of the
evidence at trial, the record in the present case does not support
a finding that the State actually proved the intentional felony of
terroristic threats or of first or second degree assault. there is
no evidence from which a fact finder could properly infer that
tucker intended to terrorize the victim or that tucker intended
to cause bodily injury to the victim. the only way to reach
such a conclusion is to speculate.
the majority affirms the district court’s judgment by con-
cluding that the evidence was sufficient to support a finding
StAte v. tuCker 	501
Cite as 17 Neb. App. 487

that tucker committed a terroristic threat against the vic-
tim. the crime of terroristic threats requires that the defend-
ant have the intent to terrorize the victim. Neb. rev. Stat.
§ 28-311.01(1)(a) (reissue 2008). there is no evidence to
support such an intent in this case, and there is no basis to
infer from the words and acts of tucker and the circumstances
surrounding the incident that tucker had such an intent.
tucker’s testimony indicated that Valentine handed tucker
the gun to have in case somebody attempted to rob Valentine.
there is no dispute that the video evidence surrounding this
incident does not present any visual contradiction to tucker’s
uncontroverted testimony that he had the gun pointed at the
ground at all times when approaching the victim and prior to
the victim’s initiating a physical confrontation with tucker.
I would conclude that the video evidence surrounding this
incident has almost no probative value, because the parties are
only minimally visible on the video and there is no clear foot-
age of the shooting. there is nothing on the video suggesting
that the gun was ever pointed or aimed by tucker at anyone.
In fact, I cannot see a gun in the video, and despite the testi-
mony of a crime laboratory technician that one frame of the
entire video includes “a dark black object with a sharp angle,”
a review of that frame does not leave a viewer with an abil-
ity to discern anything resembling a firearm. the “dark black
object” looks like a shadow that extends nearly to tucker’s
elbow, and there is nothing about it that clearly resembles a
handgun. the most that can be said about the video is that it
corroborates the defendant’s testimony that he never aimed or
pointed the gun.
As the majority concedes, the angle at which a gun is
pointed directly at someone is clearly an important factor in
the analysis. State v. Curlile, 11 Neb. App. 52, 642 N.W.2d 517
(2002). In this case, there is no evidence, video or testimonial,
that tucker ever aimed the gun at the victim or ever pointed the
gun at the victim.
Contrary to the majority’s conclusion that a rational fact
finder could conclude that “tucker, by visibly holding a gun
while engaged in a face-to-face confrontation with the victim,
threatened the victim” (emphasis supplied) and intended to
502 	17 NeBrASkA APPeLLAte rePOrtS

terrorize the victim, there is no evidence that tucker aimed
the gun at the victim or that the gun was ever even visible to
the victim. rather, the only evidence presented to the district
court was that tucker had the gun pointed at the ground, that
the victim rushed at tucker and initiated a physical confronta-
tion, and that during the confrontation, the gun discharged and
struck the victim.
to conclude, or even infer, that tucker intentionally aimed
the gun or pointed the gun at the victim in the midst of a
struggle requires speculation and is not properly inferable from
the evidence presented. the majority’s conclusion, and the
State’s contention at oral argument, would allow any incident
involving a shooting to also support a conviction for terroristic
threats, because it is based on nothing more than a conclu-
sion that because the victim was shot, the gun must have been
pointed in the victim’s direction at some point. If allowed to
stand, the majority opinion eliminates the need for evidence
proving the mens rea of the crime, i.e., that a defendant inten-
tionally pointed or aimed the gun at the victim at any time with
the necessary specific intent.
If the majority’s opinion is allowed to stand, accidental
shootings will arguably now constitute the felony of terroristic
threats. the majority’s conclusion that “visibly holding” a gun
is sufficient to support an inference of an intent to terrorize
results in the inescapable conclusion that anytime somebody
holds a firearm in the presence of somebody else, there has
been a terroristic threat, and there is no authority for such an
expansive conclusion. A better conclusion would be that the
State should have to charge and prove an underlying intentional
felony to support a use charge.
the majority opinion also does not address at length the
district court’s comment that the underlying felony could have
been an assault in the first or second degree, but the record is
similarly insufficient to support a finding of such an assault.
First, just as tucker was never charged with terroristic threats
and the State never sought to introduce evidence to support
such a charge, tucker was also never charged with first or
second degree intentional assault and the State never sought to
introduce evidence to support such a charge. Both first degree
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Cite as 17 Neb. App. 487

and second degree intentional assault require proof that the
accused intended to inflict bodily injury on the victim. See
Neb. rev. Stat. §§ 28-308(1) and 28-309(1)(a) (reissue 2008).
the mere fact that the victim in this case was killed does not
allow an inference that tucker intended to inflict any bodily
injury; as noted above, the only evidence presented indicated
that the victim initiated a physical confrontation and that a
struggle ensued, during which the firearm accidentally dis-
charged. Perhaps even more salient is the fact that the trial
court found that the killing was unintentional.
In this case, the State initially sought to prove that tucker
was guilty of first degree murder. the district court, after view-
ing all of the evidence presented by the State and after hearing
the testimony of tucker, concluded that the killing was an acci-
dent. the court’s finding in this regard is a recognition that the
court accepted tucker’s uncontroverted testimony that the fire-
arm was discharged accidentally in the course of a struggle that
resulted from the physical confrontation initiated by the victim.
the only way to support the majority’s conclusion regarding
the conviction on the charge of use of a deadly weapon in the
commission of a felony is to disregard the implicit conclu-
sion of the trial court that the killing resulted from an acci-
dental discharge of the gun and simultaneously speculate that
tucker intended to terrorize the victim or intended to inflict
bodily injury with the firearm—intentional acts that were never
charged, never discussed during the entire trial, and not sup-
ported by any evidence in the record beyond the fact that the
victim was actually shot.
the majority breaks new ground in this case by affirming
a conviction for use of a deadly weapon in the commission of
a felony where the only other crime charged by the State and
found by the court to have been proven beyond a reasonable
doubt was the unintentional crime of manslaughter. there is
no prior authority for supporting such a use conviction with an
uncharged intentional act that was first raised during closing
arguments, and the record is insufficient to support a finding
that the requisite intent was proven. As a result, I dissent from
that portion of the majority opinion that affirms tucker’s con-
viction on the use charge.
504 	17 NeBrASkA APPeLLAte rePOrtS