State v. Malcom, A-97-798

CourtCourt of Appeals of Nebraska
Citation7 Neb.App. 286,583 N.W.2d 45
Docket NumberNo. A-97-798,A-97-798
PartiesSTATE of Nebraska, Appellee, v. Arven E. MALCOM, Jr., Appellant.
Decision Date30 June 1998

Page 45

583 N.W.2d 45
7 Neb.App. 286
STATE of Nebraska, Appellee,
Arven E. MALCOM, Jr., Appellant.
No. A-97-798.
Court of Appeals of Nebraska.
June 30, 1998.

Page 46

Syllabus by the Court

1. Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient and (2) such deficiency prejudiced the defendant.

2. Lesser-Included Offenses: Jury Instructions: Evidence. The law in Nebraska concerning lesser-included offenses requires courts to engage in a two-step test to determine whether a lesser-included offense instruction should be given: First, the court must determine whether the lesser crime is actually a lesser-included offense of the greater crime, which requires that the statutory elements of the lesser offense must be such that it is impossible to commit the greater offense without at the same time committing the lesser offense; and second, the court must determine whether the evidence presented at trial provides a rational basis for the jury to return an acquittal on the greater offense, but a conviction on the lesser offense.

3. Effectiveness of Counsel. To satisfy the prejudice prong of the ineffectiveness of counsel test, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

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4. Effectiveness of Counsel. In demonstrating ineffectiveness of counsel, it is not enough for the defendant to show that the errors claimed had some conceivable effect on the outcome of the proceeding, because virtually every act or omission of counsel would meet that test even though not every error which conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.

5. Jury Instructions. Jury instructions which essentially repeat the language of the statute correctly state the law.

6. Sentences: Appeal and Error. If a sentence is within the statutory limits, an appellate court will not disturb the sentence absent an abuse of discretion by the sentencing court.

[7 Neb.App. 287] Scott H. Trusdale, of Trusdale and Trusdale, P.C., Cozad, for appellant.

Don Stenberg, Attorney General, and Jay C. Hinsley, Lincoln, for appellee.


IRWIN, Judge.


Arven E. Malcom, Jr., appeals from his conviction and sentence for first degree sexual assault, see Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1989). On appeal, Malcom challenges the effectiveness of his trial counsel, the jury instructions, and the sentence imposed by the district court. Finding no merit to any of Malcom's assigned errors, we affirm.


The events which gave rise to this case occurred on or about July 5, 1993. On the evening of July 4, a group of people, including several minors, gathered at Malcom's home. Alcohol was served, fireworks were discharged, and the people sang karaoke. One of the minors at this party was Dani V., the victim in this case. According to the record, Dani V. was 15 years old, had quite a bit to drink, and became intoxicated. At some point during the evening, Dani V. lay down on a bed at Malcom's home and fell asleep.

While Dani V. slept on the bed, several other people were in the room, including Malcom. Dani V. apparently was awake at times and asleep at other times while the group of people were in the bedroom talking. At one point, somebody turned off the lights in the room. One witness testified, and Dani V. also asserted, that while the lights were off Malcom kissed Dani V. Dani V. eventually went back to sleep, and the group left the room.

During the early morning hours of July 5, 1993, Malcom entered the bedroom where Dani V. was sleeping and began singing to her to wake her up. It is undisputed that after waking Dani V., Malcom engaged in sexual intercourse and cunnilingus with Dani V. several times. Dani V. testified that she was not a willing participant in the sex, but, rather, was unable to resist and was afraid. Malcom's testimony at trial disputed this.

[7 Neb.App. 288] Malcom, who was 49 years of age at the time of this offense, was charged by information with first degree sexual assault on August 5, 1993. The information charged that Malcom "on or about the 5th day of July, 1993, [did] subject another person to sexual penetration and [Malcom] was nineteen years of age or older and the victim was less than sixteen years of age." After a jury trial, Malcom was convicted of the charge and sentenced to 10 to 30 years' imprisonment. Malcom was sentenced on January 7, 1994. No direct appeal was filed subsequent to the conviction and sentencing.

On February 19, 1997, Malcom filed an application for postconviction relief. Malcom asserted that his trial counsel had been ineffective for failing to prosecute an appeal and for several other reasons associated with the trial of the case. On April 29, the district court sustained Malcom's application for postconviction relief based on his claim that his counsel had been ineffective for failing to appeal the conviction and sentence. As a remedy, the court vacated the original sentence and ordered a resentencing hearing. On June 27, the court resentenced Malcom,

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again sentencing him to 10 to 30 years' imprisonment. This timely appeal followed.


On appeal, Malcom has assigned four errors which we consolidate for discussion to three. First, Malcom asserts that his trial counsel was ineffective. Second, Malcom asserts that the district court gave prejudicial jury instructions. Third, Malcom asserts that the sentence imposed by the district court both immediately following his conviction and following the resentencing hearing was excessive and an abuse of discretion.



The State asserts on appeal that Malcom should be precluded from raising any issues concerning his conviction in this appeal, because the appeal arises out of a resentencing hearing. As such, the State asserts that the only issue properly before us on appeal is the sentence Malcom received after the resentencing hearing. We disagree.

[7 Neb.App. 289] Our review of the record indicates that Malcom's trial counsel failed to prosecute a direct appeal from his conviction and sentence. Subsequently, Malcom filed an application for postconviction relief, asserting that this amounted to ineffective assistance of counsel. The district court agreed and sustained Malcom's application on that basis. The court then vacated the original sentence, held a resentencing hearing, and sentenced Malcom to the same sentence as was originally imposed. It is apparent to us that the district court was using the resentencing as a means of renewing Malcom's right to file a direct appeal. Although not dispositive, we note that in his motion Malcom requested that the court resentence him, "thereby...

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  • State v. Jordan B. (In re Interest of Jordan B.), S-17-1092.
    • United States
    • Supreme Court of Nebraska
    • June 22, 2018
    ...Pa. Super. 487, 536 A.2d 1370 (1988). See, also, In re Davis , 114 N.C. App. 253, 441 S.E.2d 696 (1994).27 See, also, State v. Malcom , 7 Neb. App. 286, 583 N.W.2d 45 (1998).28 State v. Williams , 243 Neb. 959, 503 N.W.2d 561 (1993).29 See State v. Putz , 266 Neb. 37, 662 N.W.2d 606 (2003).......
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    ...of Beverly's experts regarding an outcome at a trial compared to the settlement agreement, but that the ruling did not harm Beverly. [7 Neb.App. 286] We conclude that the district court properly entered a directed verdict in McGrath's favor on the issue of the nonmodification of alimony, th......
  • State v. Malcom, A-02-621.
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  • State v. Warren, A-99-440.
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    ...evidence, there is no prejudicial error necessitating reversal. State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999); State v. Malcom, 7 Neb.App. 286, 583 N.W.2d 45 (1998). A jury instruction which does not correctly state the law or which is likely to confuse or mislead the jury should no......
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