State v. Briggs, 9 N.W.3d 632

James M. Briggs, Jr. was convicted of two counts of second degree assault, both based on incidents involving staff at the Lincoln Correctional Center during his incarceration.
The offenses alleged Briggs intentionally or knowingly struck or wounded two employees while he was legally confined.
Briggs was found to be a habitual criminal and sentenced to two consecutive 10-12 year prison terms, with a mandatory minimum of 10 years each.
On appeal, Briggs raised issues with the jury instructions, the sufficiency of the evidence, ineffective assistance of trial counsel, and application of an amended habitual criminal statute.
Relevant statutory amendments reducing mandatory minimum sentences for habitual criminals were passed after trial court sentencing but before final judgment.

Issue	Briggs' Argument	State's Argument	Held
Jury instruction on statutory element "unlawfully"	Instruction failed to include or define "unlawful," omitting an essential element	The instructions as given appropriately described the crime using statutory language; no specific objection preserved	Court held Briggs did not preserve issue for appeal and instructions were legally sufficient using common-law battery definition
Sufficiency of the evidence	State failed to prove all elements, focusing on "unlawfully"	State presented sufficient evidence of intentional striking while confined	Court held the sufficiency issue wasn’t preserved and the evidence was sufficient under the law
Ineffective assistance—jury instruction	Counsel failed to object to, or request clarification of, the jury instruction regarding "unlawful"	Counsel’s actions didn’t fall below standard; instructions reflected common-law battery	Court found no deficiency—jury was properly instructed and no prejudice to Briggs
Sentencing under amended habitual criminal statute	Counsel failed to ensure sentencing under the more lenient amended law	Statute hadn’t taken effect at time of sentencing	Court vacated sentences and remanded for resentencing under the amended law per existing Nebraska precedent

State v. Levell, 181 Neb. 401 (statutory phrase “unlawfully strike or wound” codifies common law of assault/battery)
Wagner v. State, 43 Neb. 1 (same—phrase is essentially the common-law definition of battery)
State v. Randolph, 186 Neb. 297 (sentencing under mitigating amendments applies when judgment not final)
State v. Swindle, 300 Neb. 734 (jury instructions in statutory language are generally proper)
State v. Tvrdy, 315 Neb. 756 (jury instructions must be read as a whole, reversal only if prejudicial error)