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www.nebraska.gov/apps-courts-epub/
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                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                                STATE v. MANJIKIAN
                                                 Cite as 303 Neb. 100

                                        State of Nebraska, appellee, v.
                                         Vazgen M anjikian, appellant.
                                                   ___ N.W.2d ___

                                          Filed May 10, 2019.     No. S-18-858.

                 1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding
                    whether to accept guilty pleas, and an appellate court will reverse the
                    trial court’s determination only in case of an abuse of discretion.
                 2. Sentences: Appeal and Error. An appellate court will not disturb a sen-
                    tence imposed within the statutory limits absent an abuse of discretion
                    by the trial court.
                 3. Judges: Words and Phrases. A judicial abuse of discretion exists when
                    the reasons or rulings of a trial judge are clearly untenable, unfairly
                    depriving a litigant of a substantial right and denying just results in mat-
                    ters submitted for disposition.
                 4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
                    fective assistance of trial counsel may be determined on direct appeal is
                    a question of law.
                 5. ____: ____. In reviewing claims of ineffective assistance of counsel on
                    direct appeal, an appellate court decides only whether the undisputed
                    facts contained within the record are sufficient to conclusively deter-
                    mine whether counsel did or did not provide effective assistance and
                    whether the defendant was or was not prejudiced by counsel’s alleged
                    deficient performance.
                 6. Pleas. To support a finding that a defendant has entered a guilty plea
                    freely, intelligently, voluntarily, and understandingly, a court must inform
                    a defendant about (1) the nature of the charge, (2) the right to assistance
                    of counsel, (3) the right to confront witnesses against the defendant, (4)
                    the right to a jury trial, and (5) the privilege against self-incrimination.
                    The record must also establish a factual basis for the plea and that the
                    defendant knew the range of penalties for the crime charged.
                 7. Double Jeopardy. The Double Jeopardy Clause protects against three
                    distinct abuses: (1) a second prosecution for the same offense after
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                       303 Nebraska R eports
                              STATE v. MANJIKIAN
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      acquittal, (2) a second prosecution for the same offense after conviction,
      and (3) multiple punishments for the same offense.
 8.   Double Jeopardy: Juries: Evidence: Pleas. In Nebraska, jeopardy
      attaches (1) in a case tried to a jury, when the jury is impaneled and
      sworn; (2) when a judge, hearing a case without a jury, begins to hear
      evidence as to the guilt of the defendant; or (3) at the time the trial court
      accepts the defendant’s guilty plea.
 9.   Double Jeopardy: Legislature: Intent: Sentences. Where the
      Legislature has demonstrated an intent to permit cumulative punish-
      ments, the Double Jeopardy Clause is not violated as long as the cumu-
      lative punishments are imposed in a single proceeding.
10.   Waiver: Constitutional Law: Intent: Presumptions: Words and
      Phrases. A waiver is ordinarily an intentional relinquishment or aban-
      donment of a known right or privilege, and courts indulge every reason-
      able presumption against waiver of fundamental constitutional rights.
11.   Waiver. The determination of whether there has been an intelligent
      waiver of a right must depend, in each case, upon the particular facts
      and circumstances surrounding that case, including the background,
      experience, and conduct of the accused.
12.   Pleas: Waiver. The voluntary entry of a guilty plea or a plea of no con-
      test waives every defense to a charge, whether the defense is procedural,
      statutory, or constitutional.
13.   Sentences. When imposing a sentence, the sentencing court is to con-
      sider 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. The sentencing court is not
      limited to any mathematically applied set of factors.
14.   ____. The appropriateness of a sentence is necessarily a subjective
      judgment and includes the sentencing judge’s observation of the defend
      ant’s demeanor and attitude and all the facts and circumstances sur-
      rounding the defendant’s life.
15.   Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
      assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
      S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
      counsel’s performance was deficient and that this deficient performance
      actually prejudiced his or her defense.
16.   Postconviction: Pleas: Waiver: Effectiveness of Counsel. Normally,
      a voluntary guilty plea waives all defenses to a criminal charge.
      However, in a postconviction proceeding brought by a defendant con-
      victed because of a guilty plea or a plea of no contest, a court will
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                            STATE v. MANJIKIAN
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    consider an allegation that the plea was the result of ineffective assist
    ance of counsel.
17. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
    tion is based upon a guilty plea, the prejudice requirement for an inef-
    fective assistance of counsel claim is satisfied if the defendant shows a
    reasonable probability that but for the errors of counsel, the defendant
    would have insisted on going to trial rather than pleading guilty.
18. Effectiveness of Counsel: Records: Appeal and Error. The fact that
    an ineffective assistance of counsel claim is raised on direct appeal does
    not necessarily mean that it can be resolved on direct appeal. The deter-
    mining factor is whether the record is sufficient to adequately review
    the question.
19. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
    ineffective assistance of counsel claim will not be resolved on direct
    appeal if it requires an evidentiary hearing.

   Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
  Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz &
Conway, P.C., L.L.O., for appellant.
  Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Heavican, C.J.
                       INTRODUCTION
   Following a traffic stop in Lancaster County, Nebraska,
Vazgen Manjikian was charged by information with possession
of a controlled substance, a Class IV felony. During the course
of the traffic stop, an amount of amphetamine, a Schedule
II controlled substance, was located, along with $234,956.
Pursuant to a plea agreement, Manjikian was charged by
amended information with one count of attempted possession
of a controlled substance, a Class I misdemeanor. Manjikian
now appeals his conviction and sentence on various constitu-
tional grounds. We affirm.
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                   303 Nebraska R eports
                       STATE v. MANJIKIAN
                        Cite as 303 Neb. 100

                        BACKGROUND
   On January 24, 2018, a Lancaster County sheriff’s deputy
observed a vehicle, bearing New York license plates, traveling
westbound on Interstate 80 at mile marker 394 in Lancaster
County. The deputy noted that the vehicle was following
another vehicle at a distance of .39 seconds and at a speed of
73 miles per hour. The deputy initiated a traffic stop on the
vehicle for following too closely. As the deputy was attempt-
ing to stop the vehicle, he observed the two occupants making
furtive movements in the area around the center console of
the vehicle.
   Upon contacting the vehicle’s occupants, the deputy noted
the odor of raw marijuana emanating from the vehicle. The
deputy identified the driver as Kevin Conrado, and the only
passenger in the vehicle was identified as Manjikian. Conrado
was asked for the vehicle’s registration and paperwork, which
he retrieved from a backpack in the back seat. The vehicle’s
rental agreement identified the renter as an individual who
was later determined to be the brother of Manjikian. Further
investigation revealed that following a murder conviction in
California, Manjikian’s brother had been incarcerated for a
period of time preceding the initial rental period of the vehicle.
Upon inspecting the vehicle’s paperwork and rental agreement,
the deputy noted that the rental agreement had expired 4 days
prior, on January 20, 2018.
   A search of the vehicle resulted in the discovery of two
baggies of suspected methamphetamine found in the console
area between the driver and passenger seats. The content in the
baggies, as confirmed by the Nebraska State Patrol laboratory,
was found to be methamphetamine. Deputies noted that one
of the baggies was observed to have an end ripped open. The
contents of that baggie appeared to have been dumped into an
open drink container which was found in the vehicle and which
held an unknown liquid.
   Manjikian later admitted to a deputy that he possessed a
controlled substance in the vehicle; although he referred to the
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                           STATE v. MANJIKIAN
                            Cite as 303 Neb. 100

substance as “Adderall,” it was later confirmed to be meth-
amphetamine. In addition to the methamphetamine, deputies
also discovered marijuana cigarettes in the center console area
and a total of $234,956 in U.S. currency. Conrado’s backpack
contained $11,300, and Manjikian was in possession of $376,
which was found on his person. The remainder of the cur-
rency was found stuffed inside three 64-ounce brownie mix
cans that were resealed to look as if they were in their origi-
nal condition.
   On March 27, 2018, Manjikian was charged by information
in Lancaster County District Court with possession of a con-
trolled substance (amphetamine), a Class IV felony.1 Manjikian
entered a plea of not guilty to the charge.
   On June 21, 2018, Manjikian, along with his trial counsel,
appeared before the district court at a change of plea hearing.
The parties advised the district court that they had reached an
agreement wherein Manjikian would plead no contest to an
amended information charging him with attempted posses-
sion of a controlled substance (methamphetamine) under Neb.
Rev. Stat. § 28-201(4)(e) (Reissue 2016) and § 28-416(3), a
Class I misdemeanor. In addition, Manjikian agreed to forfeit
any interest in the $234,956 that was seized during the traffic
stop that led to his arrest. The forfeiture agreement was in writ-
ing and stated, in pertinent part:
      Manjikian hereby enters into an agreement with the State
      of Nebraska in the above captioned matter and agrees
      that any interest he has in said $234,956.00 shall be
      forfeited to [U.S. Customs and Border Protection] pur-
      suant to federal forfeiture laws. . . . Manjikian consents
      to the administrative forfeiture of the $234,956.00 and
      will not file a claim for it. In agreeing to such forfeit
      ure, . . . Manjikian waives his rights pursuant to Neb.
      Rev. Stat. §28-431 and the procedural requirements for
      such forfeitures and waives his rights as they relate

1
    See Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2018).
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                            STATE v. MANJIKIAN
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      to claims of double jeopardy pursuant to the United
      States Constitution Amendment V, the Nebraska State
      Constitution Article I, section 12, and State v. Franco,
      257 Neb. 15 (1999);
         . . . Manjikian, having consulted with his attorney
      in the matter, now waives his rights freely, voluntarily,
      knowingly and intelligently without force, threat, coer-
      cion, duress, or promises, other than a plea agreement.
   Following a hearing in which the court advised Manjikian
of his rights and confirmed his understanding of such, the
district court found that Manjikian’s plea was “freely, volun-
tarily, knowingly and intelligently made” and adjudged him
guilty of the offense. The court then ordered a presentence
investigation and set a date for sentencing.
   Manjikian’s sentencing hearing was held on August 29,
2018. At the hearing, the district court sentenced Manjikian to
180 days’ imprisonment, with 2 days’ credit for time served.
Manjikian appeals.

                 ASSIGNMENTS OF ERROR
   In a brief prepared by appellate counsel, Manjikian claims
that the district court erred in (1) finding that Manjikian
made a free, voluntary, knowing, and intelligent plea; (2)
accepting a plea that Manjikian contends violates constitu-
tional protections against double jeopardy; and (3) abusing
its discretion in sentencing him to a term of incarceration.
Manjikian also contends that he received ineffective assist
ance of trial counsel.

                   STANDARD OF REVIEW
   [1] A trial court is afforded discretion in deciding whether
to accept guilty pleas, and an appellate court will reverse
the trial court’s determination only in case of an abuse of
discretion.2

2
    State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).
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                        303 Nebraska R eports
                              STATE v. MANJIKIAN
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   [2,3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.3 A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.4
   [4,5] Whether a claim of ineffective assistance of trial coun-
sel may be determined on direct appeal is a question of law.5 In
reviewing claims of ineffective assistance of counsel on direct
appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively
determine whether counsel did or did not provide effective
assistance and whether the defendant was or was not preju-
diced by counsel’s alleged deficient performance.6
                           ANALYSIS
Manjikian’s Free, Voluntary, Knowing,
and Intelligent Plea.
   In his first assignment of error, Manjikian contends that the
plea agreement he entered into with the State was not entered
into freely, voluntarily, knowingly, or intelligently. According
to Manjikian, the district court failed to advise him that by
entering into the plea agreement, he waived his right to appeal
any adverse decisions had he filed pretrial motions or pro-
ceeded to trial. Manjikian argues that the court’s failure in this
respect results in his plea not being made freely, voluntarily,
knowingly, and intelligently.
   [6] Under our holding in State v. Lane,7 to support a find-
ing that a defendant has entered a guilty plea freely, intelli-
gently, voluntarily, and understandingly, a court must inform

3
    State   v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018).
4
    State   v. Clemens, 300 Neb. 601, 915 N.W.2d 550 (2018).
5
    State   v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
6
    Id.
7
    State   v. Lane, 299 Neb. 170, 907 N.W.2d 737 (2018).
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                            STATE v. MANJIKIAN
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a defendant about (1) the nature of the charge, (2) the right to
assistance of counsel, (3) the right to confront witnesses against
the defendant, (4) the right to a jury trial, and (5) the privilege
against self-incrimination. The record must also establish a
factual basis for the plea and that the defendant knew the range
of penalties for the crime charged.8
   Manjikian now argues, without binding authoritative sup-
port, that the court was also required, during the plea colloquy,
to advise him of the fact that his plea would result in the waiver
of his right to appeal any adverse decision had he filed pretrial
motions or proceeded to trial. Manjikian further contends that
the court was also required to advise him that appellate counsel
and costs would be provided, had he qualified.
   Manjikian would have us adopt a new prerequisite to accept-
ing a plea in the form of the American Bar Association’s
Standard 14-1.4(a)(vi), requiring the court to advise the defend
ant that “by pleading guilty the defendant generally waives the
right to appeal, except the right to appeal a motion that has
been made, ruled upon and expressly reserved for appeal and
the right to appeal an illegal or unauthorized sentence.”9
   We have consistently held that the rule to be distilled from
our prior holdings is that in order to support a finding that a
plea of guilty or nolo contendere has been entered freely, intel-
ligently, voluntarily, and knowingly, the court must inform the
defendant concerning the nature of the charge,10 the right to
assistance of counsel,11 the right to confront witnesses against
the defendant,12 the right to a jury trial,13 and the privilege

 8
     Id.
 9
     ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-1.4(a)
     (vi) at 36 (3d ed. 1999).
10
     State v. Turner, 186 Neb. 424, 183 N.W.2d 763 (1971), disapproved on
     other grounds, State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).
11
     State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981).
12
     Id.
13
     Id.
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against self-incrimination.14 The court must also examine the
defendant and determine whether he or she understands the
foregoing.15 Lastly, the court must ensure the record establishes
that there is a factual basis for the plea and that the defendant
knew the range of penalties for the crime with which he or she
is charged.16
   As we stated in State v. Irish, “[we recognize] that the work
of the ABA, although good and useful, nevertheless does not
rise to the status of legislative acts or judicial holdings.”17
Through painstaking judicial work, we have established the
minimum requirements for the court to accept a plea as being
entered freely, intelligently, voluntarily, and knowingly.
   Additionally, as we indicated in State v. Turner,18 a require-
ment of an item-by-item review of constitutional rights on
a guilty plea is a strained and a too extreme construction of
the U.S. Supreme Court’s holdings in Boykin v. Alabama19
and McCarthy v. United States.20 Both Boykin and McCarthy
dealt with a court’s duties under Fed. R. Crim. P. 11 as it
relates to a defendant’s voluntarily and intelligently made
plea agreement.
   Here, the record demonstrates that the district court advised
Manjikian at length about the nature of the charge, made sig-
nificant reference to his right to assistance of counsel, and
advised Manjikian of the right to confront witnesses against
him, the right to a jury trial, and the privilege against self-
incrimination. Beyond the required admonishments enumerated
in Lane, the court went on to specifically warn Manjikian that

14
     Id.
15
     Irish, supra note 10.
16
     Id.
17
     Id. at 818, 394 N.W.2d at 882.
18
     Turner, supra note 10.
19
     Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
20
     McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418
     (1969).
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his plea would waive his right to additional hearings regarding
pretrial motions, had he subsequently decided to make any.
   Based on the foregoing analysis, Manjikian’s plea was
entered freely, voluntarily, knowingly, and intelligently. We
decline his invitation to adopt the American Bar Association’s
Standard 14-1.4(a)(vi), and we find his assignment of error to
be without merit.

Double Jeopardy.
   Manjikian next assigns that the district court erred and
abused its discretion in accepting his no contest plea. Manjikian
contends that such acceptance violated double jeopardy princi-
ples. Specifically, Manjikian argues that our precedent in State
v. Spotts 21 acts to bar the State from seeking both forfeiture
and subsequent criminal prosecution.
   At oral arguments, for the first time, the State argued that
the money seized during the traffic stop was abandoned prop-
erty, because Manjikian disclaimed ownership of the money in
a statement to law enforcement. The State further argues that
Manjikian cannot now claim double jeopardy applies because
of the forfeiture of the funds that he had earlier proclaimed
were not his. The State’s contention regarding abandonment
was not discussed below, nor was it specifically assigned
in their brief. We proceed, therefore, to analyze Manjikian’s
double jeopardy claim.
   The U.S. Supreme Court has noted that the constitutional
prohibition against double jeopardy was designed to protect
an individual from being subjected to the hazards of trial and
possible conviction more than once for an alleged offense.22 In
Benton v. Maryland,23 the Court applied the 5th Amendment’s

21
     State v. Spotts, 257 Neb. 44, 595 N.W.2d 259 (1999).
22
     Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199
     (1957).
23
     Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707
     (1969).
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protection against double jeopardy to the states through the
Due Process Clause of the 14th Amendment, noting that the
protection “represents a fundamental ideal in our constitu-
tional heritage.”24
   [7,8] The Double Jeopardy Clause protects against three
distinct abuses: (1) a second prosecution for the same offense
after acquittal, (2) a second prosecution for the same offense
after conviction, and (3) multiple punishments for the same
offense.25 In Nebraska, jeopardy attaches (1) in a case tried to a
jury, when the jury is impaneled and sworn; (2) when a judge,
hearing a case without a jury, begins to hear evidence as to the
guilt of the defendant; or (3) at the time the trial court accepts
the defendant’s guilty plea.26
   Manjikian’s double jeopardy claim in this case appears to be
based on the prohibition of multiple punishments for the same
offense, i.e., the seizure and jail sentence.
   In State v. Franco,27 we stated that since State v. One 1987
Toyota Pickup,28 we have determined that the Legislature
intended forfeiture actions pursuant to Neb. Rev. Stat.
§ 28-431 (Reissue 2008) to be criminal proceedings. In
Franco, a criminal defendant was charged with a crime and
faced the forfeiture of personal property seized during his
arrest. The district court concluded that the crime and the
actions leading to forfeiture constituted separate criminal
offenses so that the prosecution of both was not barred by
double jeopardy. On appeal, this court disagreed, instead
holding that a forfeiture action pursuant to § 28-431 necessar-
ily required the proof of a violation of chapter 28, article 4,
of the Nebraska Revised Statutes. In Franco, the defendant’s

24
     Id., 395 U.S. at 794.
25
     Spotts, supra note 21.
26
     State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).
27
     State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999).
28
     State v. One 1987 Toyota Pickup, 233 Neb. 670, 447 N.W.2d 243 (1989),
     overruled, Spotts, supra note 21.
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violation of § 28-416(1)(a)—the statute which charged him
with possession of a controlled substance—had to be proved.
We concluded that § 28-416(1)(a) was subsumed within
§ 28-431 and that as such, the two statutes were not defin-
ing separate offenses. In short, we held that the State could
not seek forfeiture of property and then proceed in a criminal
prosecution arising from the same set of facts without offend-
ing double jeopardy.29
   [9] However, we went on to note that the Blockburger
test, enumerated in Blockburger v. United States,30 which is
applied to prevent double punishment in situations where
the Legislature intended to provide only for a single pun-
ishment, did not prevent the State from seeking a crimi-
nal prosecution and a forfeiture in the same proceeding if
there was legislative intent to do so. We concluded that the
Nebraska Legislature intended for punishments pursuant to
§§ 28-416(1)(a) and 28-431 to be imposed cumulatively.31
Where the Legislature has demonstrated an intent to permit
cumulative punishments, the Double Jeopardy Clause is not
violated as long as the cumulative punishments are imposed
in a single proceeding.32
   In Spotts, we reinforced our holding in Franco. The defend
ant in Spotts was arrested by the Nebraska State Patrol for
being in possession of a controlled substance with the intent
to deliver, a Class III felony. Before his criminal informa-
tion was filed, the State sought forfeiture of $14,177 found
on the defendant’s person at the time of his arrest. Following
his initial appearance at his criminal trial, he filed a plea in
bar alleging in pertinent part that the conduct which exposed
him to forfeiture of the $14,177 was the same conduct which

29
     See Franco, supra note 27.
30
     Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306
     (1932).
31
     Franco, supra note 27.
32
     Id.
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exposed him to liability and punishment for the possession
of methamphetamine. The defendant alleged that in order to
forfeit the money found on his person, he would have had to
commit one and the same offense as charged in the informa-
tion. He asserted that the prosecution for possession of meth-
amphetamine was barred, because said prosecution would
expose him to double jeopardy.
   In Spotts, we reiterated that forfeiture actions pursu-
ant to § 28-431 constituted criminal proceedings. We ulti-
mately found that Franco controlled, concluding that the
Nebraska Legislature intended for punishments pursuant to
§§ 28-416(1)(a) and 28-431 be imposed cumulatively. Where
the Legislature has demonstrated an intent to permit cumu-
lative punishments, the Double Jeopardy Clause is not vio-
lated as long as the cumulative punishments are imposed in
a single proceeding. In Spotts, we ultimately agreed with
the district court when it stated: “‘[I]f [a] forfeiture action
arises out of the underlying criminal case, the State is placed
in the position of having to decide whether to pursue the
forfeiture proceeding or whether to pursue the criminal
proceeding.’”33
   We observe that in 2016, the Legislature revised §§ 28-416
and 28-431.34 Because we find that Manjikian expressly
waived his constitutional right against double jeopardy when
he entered into the plea agreement,35 we express no opinion as
to whether the revisions enacted by the Legislature change the
viability of Franco and Spotts. Therefore we need not venture
into a comprehensive analysis under Spotts.
   [10,11] The U.S. Supreme Court has indicated that a
waiver is ordinarily an intentional relinquishment or aban-
donment of a known right or privilege, and courts indulge
every reasonable presumption against waiver of fundamental

33
     Spotts, supra note 21, 257 Neb. at 49, 595 N.W.2d at 262.
34
     See 2016 Neb. Laws, L.B. 1106, §§ 5 and 6.
35
     See State v. Dye, 291 Neb. 989, 870 N.W.2d 628 (2015).
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constitutional rights.36 The determination of whether there has
been an intelligent waiver of a right must depend, in each case,
upon the particular facts and circumstances surrounding that
case, including the background, experience, and conduct of
the accused.37
   In this case, Manjikian’s plea agreement in relevant part
specifically stated:
      In agreeing to such forfeiture, . . . Manjikian waives his
      rights pursuant to Neb. Rev. Stat. §28-431 and the pro-
      cedural requirements for such forfeitures and waives his
      rights as they relate to claims of double jeopardy pursu-
      ant to the United States Constitution Amendment V, the
      Nebraska State Constitution Article I, section 12, and
      State v. Franco, 257 Neb. 15 (1999)[.]
Based on the record, Manjikian has some formal education
and has previously been involved in the California criminal
justice system. Beyond his personal history which is inform
ative of his background and understanding, when asked by
the court whether he understood the plea agreement and his
rights, Manjikian consistently answered that he was aware
of the particular details of the agreement and had entered the
agreement voluntarily.
   [12] We have repeatedly held that the voluntary entry of a
guilty plea or a plea of no contest waives every defense to a
charge, whether the defense is procedural, statutory, or con-
stitutional.38 This includes the right against double jeopardy;
we have held that such exceptions include the defenses of
insufficiency of the indictment, information, or complaint;
ineffective assistance of counsel; and lack of jurisdiction.39

36
     See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 2d 1461
     (1938). See, also, Ricketts v. Adamson, 483 U.S. 1, 107 S. Ct. 2680, 97 L.
     Ed. 2d 1 (1987) (Brennan, J., dissenting).
37
     Johnson, supra note 36.
38
     See State v. Biernacki, 237 Neb. 215, 465 N.W.2d 732 (1991).
39
     State v. Start, 239 Neb. 571, 477 N.W.2d 20 (1991).
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                            STATE v. MANJIKIAN
                             Cite as 303 Neb. 100

The record in this case is clear. Manjikian waived his right
against double jeopardy when he entered into the plea agree-
ment; therefore, Manjikian’s assignment of error with regard
to being put twice in jeopardy is without merit.

Sentence.
   Manjikian next assigns as error that the court abused its dis-
cretion in sentencing him to a term of incarceration. Manjikian
argues that the district court relied on improper informa-
tion contained in the presentence investigation and on com-
ments made by the prosecution alleging, without evidence,
that Manjikian was involved in organized crime. His argument
appears to further contend that probation would have been the
appropriate sentence in this case.
   An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.40 A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.41
   [13,14] When imposing a sentence, the sentencing court is
to consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) moti-
vation 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.42 However, the sentencing court is not limited to any
mathematically applied set of factors.43 The appropriateness of
a sentence is necessarily a subjective judgment and includes
the sentencing judge’s observation of the defendant’s demeanor

40
     Steele, supra note 3.
41
     Clemens, supra note 4.
42
     State v. Wofford, 298 Neb. 412, 904 N.W.2d 649 (2017).
43
     State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).
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                       STATE v. MANJIKIAN
                        Cite as 303 Neb. 100

and attitude and all the facts and circumstances surrounding the
defendant’s life.44
   Here, the record establishes that the district court reviewed
the presentence investigation report and considered all appro-
priate sentencing factors. The comments made by the district
court noted at sentencing that the “facts and circumstances of
this case” were “somewhat disturbing.” Although the presen-
tence report and comments made by the prosecution regard-
ing Manjikian’s alleged connections to organized crime were
largely unsubstantiated, there is no indication that the district
court’s sentence turned solely on those claims.
   The court’s comments at sentencing do not indicate that the
district court considered any inappropriate factors in deter-
mining the sentence to be imposed. The presentence report
contains significant findings regarding Manjikian’s violent
criminal history, unauthorized possession of weapons, previ-
ous flight from justice, and propensity for poor impulse control
and decisionmaking. Based on the facts and circumstances sur-
rounding Manjikian’s life and the crime charged, we cannot say
that the district court abused its discretion in sentencing him to
180 days’ incarceration.
   Manjikian’s assignment of error regarding the court’s deci-
sion to sentence him to 180 days in jail is without merit.
Ineffective Assistance of Counsel.
   Lastly, Manjikian claims that he received ineffective assist
ance of counsel in violation of his 6th Amendment right as
applied to the states through the Due Process Clause of the
14th Amendment. Manjikian contends that his trial counsel’s
performance fell below the range of competence demanded of
attorneys in criminal cases.
   Specifically, Manjikian points to four instances in particular
in which he claims trial counsel was deficient. First, Manjikian
argues that his codefendant had signed a written confession

44
     Id.
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                             STATE v. MANJIKIAN
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and was prepared to testify that the controlled substance was
not Manjikian’s. Manjikian argues that trial counsel was inef-
fective in advising Manjikian that his codefendant’s statement
and proposed testimony would not be sufficient to convince a
jury. Second, Manjikian claims that trial counsel advised him
a jury would likely convict him based on his being from out
of state and that this erroneous advice caused Manjikian to
enter into a plea agreement rather than proceed to trial. Third,
Manjikian claims that trial counsel incorrectly advised him that
observing his codefendant “do something” with the substance
upon the officer’s initiating the traffic stop was sufficient
evidence to sustain a conviction for the crime with which he
was charged, leading him to forgo his right to trial.45 Lastly,
Manjikian contends that his counsel failed to protect his rights
against double jeopardy by not filing a plea in bar.
   [15] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,46 the defendant must
show that counsel’s performance was deficient and that this
deficient performance actually prejudiced his or her defense.47
The two prongs of this test may be addressed in either
order, and the entire ineffective assistance analysis should
be viewed with a strong presumption that counsel’s actions
were reasonable.48
   [16,17] Normally, a voluntary guilty plea waives all
defenses to a criminal charge. However, in a postconviction
proceeding brought by a defendant convicted because of a
guilty plea or a plea of no contest, a court will consider an
allegation that the plea was the result of ineffective assistance
of counsel.49 When a conviction is based upon a guilty plea,

45
     Brief for appellant at 20.
46
     Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
     (1984).
47
     State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
48
     Id.
49
     State v. Amaya, 276 Neb. 818, 758 N.W.2d 22 (2008).
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                             STATE v. MANJIKIAN
                              Cite as 303 Neb. 100

the prejudice requirement for an ineffective assistance of
counsel claim is satisfied if the defendant shows a reasonable
probability that but for the errors of counsel, the defendant
would have insisted on going to trial rather than plead-
ing guilty.50
   The likelihood of the defense’s success had the defendant
insisted on going to trial is relevant to the prejudice analy-
sis51; it is relevant to the consideration of whether a rational
defendant would have insisted on going to trial.52 The like-
lihood of the defense’s success had the defendant gone to
trial should be considered along with other factors, such as
the likely penalties the defendant would have faced if con-
victed at trial, the relative benefit of the plea bargain, and the
strength of the State’s case.53
   Where, as here, appellate counsel is different from trial
counsel, a defendant must raise on direct appeal any issue of
ineffective assistance of trial counsel which is known to the
defendant or is apparent from the record, or the issue will be
procedurally barred on postconviction review.54 An ineffective
assistance of counsel claim is raised on direct appeal when the
claim alleges deficient performance with enough particularity
for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district
court later reviewing a petition for postconviction relief to be
able to recognize whether the claim was brought before the
appellate court.55
   [18,19] The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean

50
     State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015).
51
     See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
52
     Id.
53
     Id.
54
     State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
55
     Ash, supra note 47.
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                        STATE v. MANJIKIAN
                         Cite as 303 Neb. 100

that it can be resolved on direct appeal.56 The determining
factor is whether the record is sufficient to adequately review
the question.57 An ineffective assistance of counsel claim
will not be resolved on direct appeal if it requires an eviden-
tiary hearing.58
   In this case, the State submits that the record is sufficient to
resolve Manjikian’s claims of ineffective assistance of counsel
and contends that Manjikian’s claims are without merit. In
regard to Manjikian’s claim that his codefendant had signed
a written confession and was prepared to testify that the con-
trolled substance was not Manjikian’s, the State directs our
attention to Manjikian’s own admissions which clearly refute
any potential testimony of his codefendant. As to Manjikian’s
claim that trial counsel’s statement as to the risk of conviction
based on Manjikian’s being from out of state, the State con-
tends that such claims are betrayed by Manjikian’s own admis-
sion to law enforcement. The State argues that Manjikian’s
admissions would have carried substantial weight which alone
could have led to a conviction. The State directs our atten-
tion to the recorded jail telephone call between Manjikian and
a sheriff’s deputy in which Manjikian admitted that he had
been in possession of “Adderall,” an admission that supported
Manjikian’s plea.
   In regard to Manjikian’s claim that trial counsel failed to
protect his right against double jeopardy, the record clearly
refutes his claim, because he knowingly, intentionally, and vol-
untarily agreed, as a part of the plea agreement with the State,
to forfeit the money to the federal government. Moreover,
as noted above, the plea agreement specifically recited that
Manjikian “waives his rights as they relate to claims of
double jeopardy pursuant to the United States Constitution

56
     Id.
57
     Id.
58
     Id.
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                             STATE v. MANJIKIAN
                              Cite as 303 Neb. 100

Amendment V, [and] the Nebraska State Constitution Article I,
section 12.” Therefore, unlike the defendants in Franco 59 and
Spotts,60 Manjikian was not subjected to successive criminal
prosecutions, but instead agreed to the forfeiture and reduced
criminal charge in exchange for his plea.
   Given the fact that Manjikian and his codefendant were
transporting $234,956 on their persons, as well as in various
sealed containers, while being in possession of an amount
of methamphetamine and in a vehicle rented to Manjikian’s
brother, who was incarcerated at the time of the rental agree-
ment, it cannot be said that Manjikian’s defense had a strong
likelihood of success on the merits. This is especially true given
the fact that Manjikian admitted to law enforcement that he had
been in possession of “Adderall,” a controlled substance.
   Had the plea agreement not been reached, Manjikian
was facing a charge of possession of a controlled substance
(amphetamine), a Class IV felony under § 28-416(3), which
carries a potential maximum sentence of 2 years’ imprison-
ment and 12 months’ postrelease supervision or a $10,000 fine,
or both, and a minimum sentence of 9 months’ postrelease
supervision, if imprisonment is imposed.61 In light of the
potential penalty he faced, had Manjikian not pled to the lower
Class I misdemeanor, the weight of the evidence and the fact
that our ineffective assistance analysis is viewed with a strong
presumption that counsel’s actions were reasonable, we cannot
say that Manjikian’s trial counsel was ineffective in regard to
the plea agreement.
   Further, we cannot say that trial counsel was incorrect
in advising Manjikian regarding possession. We have previ-
ously stated that “possession of an illegal substance can be
inferred from a vehicle passenger’s proximity to the substance

59
     Franco, supra note 27.
60
     Spotts, supra note 21.
61
     See Neb. Rev. Stat. § 28-105 (Reissue 2016).
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or other circumstantial evidence that affirmatively links the
passenger to the substance.”62 Given this prior holding and
Manjikian’s admission, we cannot say that Manjikian’s claim
that his codefendant was willing to testify and provide a writ-
ten statement as to being the alleged true possessor of the
controlled substance rises to the level of establishing that
Manjikian suffered actual prejudice as a result of choosing to
enter a plea instead of risking a trial. Trial counsel is afforded
due deference to formulate trial strategy and tactics, and we
are not to second-guess trial counsel’s reasonable strategic
decisions when reviewing claims of ineffective assistance
of counsel.63

                         CONCLUSION
   The district court did not err in finding that Manjikian made
a free, voluntary, knowing, and intelligent plea. Additionally,
the district court did not err in accepting the plea as it did not
violate double jeopardy, because Manjikian waived his rights
as evidenced by the language of the plea agreement. Further,
the district court did not abuse its discretion in sentencing
Manjikian to a term of incarceration. Lastly, Manjikian did
not receive ineffective assistance of trial counsel.
   The decision of the district court is affirmed.
                                                      A ffirmed.

62
     State v. Draganescu, 276 Neb. 448, 478, 755 N.W.2d 57, 85 (2008).
63
     See State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).


443 F.2d 70
Elmer H. DUDLEY, Petitioner-Appellant,v.Leroy N. STYNCHCOMBE, Respondent-Appellee.
No. 71-1137.
United States Court of Appeals, Fifth Circuit.
June 8, 1971.

Appeal from the United States District Court for the Northern District of Georgia; Sidney O. Smith, Jr., Chief Judge.
Floyd M. Buford, Macon, Ga., for petitioner-appellant.
Lewis R. Slaton, Dist. Atty., Atlanta Judicial Circuit, Carter Goode, Tony H. Hight, Asst. Dist. Attys., Atlanta, Ga., for respondent-appellee.
Before GEWIN, BELL and MORGAN, Circuit Judges.
PER CURIAM:

Affirmed. See Local Rule 21.1

Notes:

1
 See NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966


50 Ill. App.3d 120 (1977)
365 N.E.2d 185
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
YOLANDA MITCHELL, Defendant-Appellant.
No. 76-321.
Illinois Appellate Court  Fifth District.
Opinion filed June 21, 1977.
*121 William C. Evers, III, and James J. Massa, both of Collinsville, for appellant.
Kelly D. Long, State's Attorney, of Hillsboro (Bruce D. Irish and Raymond F. Buckley, Jr., both of Illinois State's Attorneys Association, of counsel), for the People.
Judgment affirmed.
Mr. JUSTICE EBERSPACHER delivered the opinion of the court:
Defendant, Yolanda Mitchell, was charged in the circuit court of Montgomery County with the offense of deceptive practices. Following a jury trial defendant was found guilty as charged and was sentenced to conditional discharge for a period of two years and was fined $500. From the judgment entered by the trial court, defendant brings this appeal.
On appeal defendant presents the following issues for review: whether the evidence was sufficient to support the verdict; whether the trial court erred in excluding certain evidence; whether the court erred in refusing an instruction tendered by defendant; and whether the fine was excessive.
This case arose from a check drawn from defendant's bank account and signed by her which was made payable to Milnot Company in the amount of $78.15. The check was used to purchase a large quantity of ice cream for defendant's business. Verna Brakenhoff, a receptionist with Milnot, testified that on September 5, 1975, defendant signed the check in her presence and gave it to her and in return received possession of the ice cream. The witness stated that defendant did not tell her that there were insufficient funds to cover the check nor that the check should be held for a period before presenting it for payment. The check was dated September 5, 1975. Leon Green, the sales manager for Milnot, testified that he was not present during the September 5 sales transaction in question but that he learned that the check had been returned unpaid about a week to ten days thereafter. Green stated that he also had not been told on the date the check was issued that there were insufficient funds to cover the check nor that the check should be held for a period before presenting it for payment. On cross-examination by defendant, Green described his efforts to obtain payment from defendant leading eventually to a return of a portion of the ice cream purchased. Oliver Camillo, a vice-president of the First National Bank of Collinsville, next testified concerning defendant's bank records. Defendant's account was opened on August 2, 1975, with a deposit of $400 and an additional deposit of $120 was made on August 12, 1975. August 12, 1975, was the last date on which the bank records reflected a positive balance in the account. Evidence was presented showing that prior to September 5, 1975, 14 checks were returned, that defendant was sent six overdraft notices *122 covering checks in excess of $600, and that no further deposits had been made after August 12, 1975. Camillo testified that the bank charged $2 for every check that was returned and that defendant's account was closed on November 14, 1975, when these charges totaled approximately $78.
Defendant testified denying that she intended to defraud anyone. She stated that on the date of the transaction she was aware that her account contained insufficient funds to cover the amount of the check but that Green also had been so informed, was present during the transaction and had agreed to hold the check one week before presenting it for payment. She also testified that she did not subsequently attempt to pay the check because she had returned the ice cream. On rebuttal it was shown that only approximately $58 worth of ice cream was returned.
Defendant first contends that the evidence was insufficient to support the verdict and that she was not proved guilty beyond a reasonable doubt. Both arguments involve the identical question; whether an intent to defraud was proven. Initially we note that defendant, in her brief, appears to assert that there was no evidence that she knew that there were insufficient funds in her account to cover the check. However, this assertion is wholly unsupported by the record. The evidence shows that prior to September 5, 1975, defendant was sent notice by her bank that her account reflected a negative balance and indeed defendant, herself, admitted at trial that she knew that there were insufficient funds to cover the check to Milnot.
 1 Next, defendant relies on a statement in People v. Balalas, 334 Ill. 444, 446, wherein the court stated:
"[A] person knowing that he has insufficient funds may issue a check without an intent to defraud, as where he expects to deposit sufficient funds before the check can be presented."
Defendant argues that an intent to defraud was not proven since her testimony shows that she had informed Green who was present during the transaction that she had insufficient funds and had asked him to hold the check for one week. Green, however, testified to the contrary, that he had not been so informed and that he was not even present during the transaction. Brakenhoff also testified that Green had not been present at the time and that she, herself, was not told either that there were insufficient funds or that the check should be held for a period before presenting it for payment. The evidence thus presented a conflict which was the function of the jury to resolve, having had an opportunity to observe the witnesses and determine their credibility. (People v. Everett, 14 Ill. App.3d 421, 302 N.E.2d 723.) The jury obviously chose not to believe the testimony of defendant and we note that there was no evidence showing that defendant expected to deposit sufficient funds to *123 cover the check after it had been issued. Consequently, we find no merit to defendant's contention.
Defendant's second contention is that the trial court erred in refusing to allow evidence that she filed for bankruptcy around October 21, 1975, and in refusing to allow her to cross-examine Green concerning the bankruptcy.
 2 Defendant argues, citing People v. Reans, 20 Ill. App.3d 1005, 313 N.E.2d 184, that this evidence was relevant as tending to disprove an intent by her to defraud Milnot since it explains the reason for her nonpayment of the check. Specifically, she quotes the court in Reans which stated:
"[W]e would normally favor the admission of evidence of attempts at restitution for the purpose of having a jury or a trier of fact consider these activities with all other facts in determining the absence or presence of felonious intent * * *." (20 Ill. App.3d 1005, 1008-09, 313 N.E.2d 184, 187.)
We find defendant's reliance on Reans to be unfounded since in that case the defendant was convicted of theft by deception. The "intent" referred to in the quote was the element of intent to permanently deprive the owner of the use or benefit of the property rather than an intent to defraud which was at issue in the case at bar. In People v. Cundiff, 16 Ill. App.3d 267, 305 N.E.2d 735, the defendant was convicted of deceptive practices. On appeal he argued that he should have been allowed to show the jury that he intended to pay the losses through subsequent chapter 11 proceedings in the Federal Bankruptcy Court. The court in affirming his conviction stated:
"We agree that such a defense is entirely irrelevant. The crime is complete, if it has been committed at all, when the making, delivery, or uttering of the check takes place and it is immaterial whether payment or restitution is subsequently made. [Citation.] The fact of Chapter 11 Bankruptcy instead of negativing any fraudulent intent, would tend to strengthen an inference thereof." (16 Ill. App.3d 267, 272, 305 N.E.2d 735, 739.)
Clearly defendant's intent to defraud is not measured by her inability to pay more than a month after the transaction but rather by her inability to pay at the time that she issued the check in return for the ice cream, ostensibly as payment thereof, while knowing that the check would not be paid by her bank. Therefore defendant's filing for bankruptcy was irrelevant and properly refused.
Defendant urges that this evidence was nonetheless admissible since the State "opened the door" by introducing evidence of the bank records covering a period up to November 12, 1975, when the account was *124 closed. We disagree. Defendant made no objections to the introduction into evidence of her bank records and this evidence only established that her account reflected a negative balance from August 13, 1975, until the account was closed. It was defendant not the State, who elicited testimony, often over the State's objection, of her activities subsequent to the transaction in attempting to settle the debt or make restitution. The prosecutor's comment during closing argument that the check had still not been paid at the time of trial was an invited response to the defense argument that defendant had taken steps to pay the debt. That the trial court permitted considerable latitude to defendant in presenting evidence of her attempts to subsequently make restitution can provide no basis for allowing defendant to introduce evidence explaining her failure to ultimately pay the check in full.
Defendant also argues that she should have been permitted to cross-examine Green concerning his knowledge of her bankruptcy proceeding. She argues that such an inquiry would have shown his "bias" in that Green signed a complaint only after he learned of the bankruptcy.
 3, 4 Generally, the latitude to be allowed in cross-examination of a witness rests largely in the discretion of the trial court. While cross-examination should be kept within fair and reasonable limits, it is only in a case of clear abuse of such discretion, resulting in manifest prejudice to a defendant, that a reviewing court will interfere. (People v. Halteman, 10 Ill.2d 74, 139 N.E.2d 286.) While the widest latitude should be given a defendant in cross-examination for the purpose of establishing the bias of a witness (People v. Naujokas, 25 Ill.2d 32, 182 N.E.2d 700), in the case at bar, defendant's attempted inquiry would have gone far beyond the perimeters of merely showing bias. Defendant argues that from a showing that Green filed the complaint in the instant case because he had received notice of the bankruptcy, it could be inferred that Green was testifying falsely. This argument is a non sequitur. With respect to motive to file a complaint, clearly Green, as a victim of a crime, stands in the same position as any other victim of a crime and his motive, whether it was outrage due to the crime or a desire for revenge because of the crime, has no relevance to the question of the guilt or innocence of the defendant or the truth or falsity of the testimony. Rather, the attempted cross-examination was intended to inject an issue other than the guilt of defendant into the trial and to shift that guilt to a person other than the defendant. (People v. Hanks, 17 Ill. App.3d 633, 307 N.E.2d 638.) We therefore find no abuse of discretion by the trial court's refusal of the attempted cross-examination of Green.
Defendant's next contention is that the trial court erred in refusing to give her tendered instruction as amended on the subject of intent to defraud. We disagree.
*125 The facts recited in the instruction were incomplete and hence would have misled the jury. (People v. Dore, 339 Ill. 415, 171 N.E. 554.) In any event, the jury was given IPI Criminal No. 13.23 on the definition of the offense of deceptive practices and IPI Criminal No. 13.24 on the issues in deceptive practices. These instructions adequately covered the subject matter of defendant's tendered instruction and therefore the trial court did not err in refusing the instruction. People v. Hines, 28 Ill. App.3d 976, 329 N.E.2d 903.
 5 Lastly, defendant contends that the amount of the fine imposed, $500 to be paid over a two-year period, was excessive. It is not contended nor does the record show that the amount of the fine or the method of payment (at a rate of $20.75 per month until the fine, costs and restitution are paid in full) are not commensurate with defendant's financial resources or future ability to pay nor that the fine imposed will prevent defendant from making the court ordered restitution to the victim. (See Ill. Rev. Stat. 1975, ch. 38, par. 1005-9-1(c).) Defendant argues in her brief that she was fined "for exercising her rights to take bankruptcy." This is not true. The fine was imposed as a part of the sentence for the crime for which defendant stood convicted. Review of the record shows that the fine imposed, which was well within statutory limits, was not an abuse of discretion. People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 623; People v. Grau, 29 Ill. App.3d 327, 330 N.E.2d 530.
For the foregoing reasons the judgment and sentence of the circuit court of Montgomery County is affirmed.
Affirmed.
CARTER, P.J., concurs.
Mr. JUSTICE GEORGE J. MORAN, dissenting:
In this case the finding of the requisite intent to defraud depends somewhat upon the evaluation of the credibility of Green. If, as the defendant testified, there was an agreement to hold the check, a debtor-creditor relationship was established and the defendant would not be subject to criminal sanctions. People v. Cundiff, 16 Ill. App.3d 267, 305 N.E.2d 735.
"The main objective of cross-examination in similar situations should be to impair the credibility of the witness on the grounds that he had something to gain by testifying against the defendant." (People v. Hanks, 17 Ill. App.3d 633, 638, 307 N.E.2d 638, 642.)
The defendant sought to identify a motive for Green to testify falsely as evidenced by his failure to sign the complaint until after the bankruptcy proceedings had been initiated.
*126 The majority opinion characterizes Green's interest as the equivalent of any victim of a crime. Most victims of a similar transaction would have a civil or a criminal action open to them. The filing of the bankruptcy petition removed the option from Green. If, as defendant testified, there was an agreement to hold the check, the debt would be dischargeable in bankruptcy. Any civil proceeding against the defendant would be stayed under the Bankruptcy Act and the debt would be dischargeable in bankruptcy unless Green could establish that the property was obtained by false pretenses. (Section 17(a)(2) of the Bankruptcy Act (11 U.S.C. § 35). His testimony in the criminal case, as well as the judgment of conviction, would be admissible in the bankruptcy proceeding. (Fed. R. Evid. 801, 803(22).) Thus a motive to misrepresent the actual occurrence in order to salvage the debt from the possible discharge in bankruptcy exists. The failure of the trial court to allow cross-examination into this area in a case which hinges upon the credibility of the complainant is a clear abuse of discretion. Where such an abuse of discretion, as here, results in manifest prejudice to the defendant, we must reverse. People v. Halteman, 10 Ill.2d 74, 134 N.E.2d 286; People v. George, 49 Ill.2d 372, 274 N.E.2d 26.
Defendant also alleges the trial court erred in refusing to give her tendered instruction or allow her to amend the instruction. Defendant's proferred instruction is as follows:
"Where at the time of a sale the seller agrees to hold buyer's check for payment until a later date, a debtor creditor relationship was established and the buyer was not guilty of violating the deceptive practice statute when the check was not honored due to insufficient funds."
By this instruction, defendant sought to instruct the jury that if the jury found that an agreement to hold the check for payment existed, then as a matter of law defendant lacked the intent to defraud and was not guilty. Under People v. Cundiff, 16 Ill. App.3d 267, 305 N.E.2d 735, this is a correct statement of the law. The majority finds the instruction incomplete in its recitation of facts and thus tending to mislead the jury. Clearly, the instruction is an accurate and complete statement of the law and is not misleading. Nor is the majority's reliance upon the instructions given as an adequate foundation of law for the jury's decision convincing.
The following instructions, in the form of IPI Criminal No. 13.23 and IPI Criminal No. 13.24, were given at trial:
"A person commits the crime of deceptive practice who * * * with intent to defraud and to obtain control over property of another issues and delivers a check upon a bank knowing that it will not be paid by the bank."
"To sustain the charge of deceptive practice, the State must *127 prove the following propositions:
First: That the defendant, with intent to defraud and to obtain control over property of the Milnot Co. issued a check upon a bank; and
Second: That the defendant knew that the check would not be paid.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty."
The combination of IPI Criminal Nos. 13.23 and 13.24 is not sufficient to overcome the failure of the trial court to instruct the jury on the law according to defendant's theory. Neither IPI Criminal No. 13.23 nor No. 13.24 contains an express statement on the meaning of intent to defraud as applied to the case.
"[A] defendant is entitled to the benefit of any defense shown by the entire evidence and has the right to have the jury instructed as to the law applicable to any state of facts which the jury might legitimately find to have been proved from the evidence." People v. Kalpak (1957), 10 Ill.2d 411, 424, 140 N.E.2d 726, 734.
Only slight evidence upon a theory of the case is necessary to support an instruction, and a court is not to weigh the evidence in determining whether the instruction will be given. (People v. Hall, 25 Ill. App.3d 992, 324 N.E.2d 50; People v. Khamis, 411 Ill. 46, 103 N.E.2d 133.) In this case the defendant testified that Green agreed to hold the check for later payment. Although this was denied by Brakenhof and Green, it is clearly sufficient evidence to support the tendered instruction. The defendant is entitled to have the jury determine the facts and apply the law to those facts. The failure to give the instruction requires reversal.


                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 25 2017

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 15-50460

              Plaintiff-Appellee,                D.C. No. 3:15-cr-01448-H

 v.
                                                 MEMORANDUM*
ARTURO DIAZ-ROMERO,

              Defendant-Appellant.

                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                           Submitted January 18, 2017 **

Before:      TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

      Arturo Diaz-Romero appeals from the district court’s judgment and

challenges the 46-month sentence imposed following his guilty-plea conviction for

importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Diaz-Romero contends that remand for resentencing is required because the

district court did not consider all of the factors enumerated in Amendment 794

(“the Amendment”) to the minor role Guideline when it denied his request for a

minor role adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(C) (2015). Contrary to

Diaz-Romero’s argument, the record reflects that the district court gave ample

consideration to the Amendment; it was not required to “tick off” the factors

enumerated in the Amendment to show that it had considered them. See United

States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Moreover, the court

did not clearly err in finding, after considering the Amendment, that Diaz-Romero

did not play a minor role in the offense. See United States v. Quintero-Leyva, 823

F.3d 519, 522 (9th Cir. 2016).

      AFFIRMED.

                                         2                                      15-50460


66 Cal.App.2d 335 (1944)
WILLIAM A. GREER et al., Plaintiffs; ANNA GREER, Respondent,
v.
GEORGE II. FREITAS et al., Appellants.
Civ. No. 7061.
California Court of Appeals. Third Dist.
Oct. 13, 1944.
 Hoge, Pelton & Gunther. Hawkins & Hawkins and J. Lee Robertson for Appellants.
 Edward T. Taylor and Leslie A. Clary for Respondent.
 ADAMS, P. J.
 Plaintiffs brought this action to recover general and special damages alleged by them to have resulted from a collision between an automobile driven by plaintiff William A. Greer, with whom his daughter, Anna Greer, was riding as a guest, and one driven by defendant George H. Freitas but owned by M. Elizabeth Freitas, his wife. The jury returned a verdict in favor of defendants and against the plaintiffs. Plaintiffs moved for a new trial and the motion was denied as to William A. Greer but granted as to Anna Greer. The order granting such new trial reads: "The motion for New Trial in the above entitled case having been heretofore submitted to the Court on the *337 21st day of Jan. 1943, and after due consideration thereof, it is ordered that the motion for new trial by the plaintiff, William A. Greer, be and the same is hereby denied; that the motion for new trial by the plaintiff, Anna Greer, be and the same is hereby granted."
 [1] Defendants appealed from the foregoing order and within the time prescribed by law served and filed their opening brief. No brief has been filed by respondent Anna Greer nor has she suggested any theory upon which the order may be sustained. The order itself does not show the grounds upon which it was granted. This court is, therefore, put to the task, if it will undertake it, of searching through the record and speculating as to what alleged errors relied upon by plaintiffs as grounds for a new trial induced the trial court to grant a new trial as to Anna Greer, and to her alone. Appellate courts are not required to assume that burden. While there are other cases on the subject, Zeigler v. Bonnell, 52 Cal.App.2d 217, 218 [126 P.2d 118], most emphatically states the rules as follows:
 "Although given ample opportunity to do so, respondent has filed no brief on this appeal, nor has he or his counsel suggested any theory upon which the judgment may be sustained. Under such circumstances, we are entitled to accept the facts as stated in appellant's brief (Rule V,  1, of the Rules of the Supreme Court and District Courts of Appeal; Pendergrass v. Axx, 111 Cal.App. 478 [295 P. 896]; Frank Graves S. etc. Co. v. Orange County Bond & Mtg. Corp., 111 Cal.App. 475 [295 P. 859]), and are under no duty to seek out points of law in support of the judgment. We are entitled to assume that respondent has abandoned any attempt to support the judgment. (Duisenberg-Wichman & Co. v. Johnson, 123 Cal.App. 125 [10 P.2d 1010]; Doud v. Jackson, 102 Cal.App. 213 [283 P. 107].) This shirking of responsibility on the part of respondent and his counsel should be strongly condemned, imposing as it does an unfair and improper burden on the court. (Mosher v. Johnson, 51 Cal.App. 114 [196 P. 84]; Lapique v. Walsh, 51 Cal.App. 191 [196 P. 512].)"
 Plaintiffs' notice of motion for a new trial stated the following grounds only: (1) insufficiency of the evidence to justify the verdict; (2) that the verdict is against law; (3) "illegality" in the proceedings of the jury by which the plaintiffs were prevented from having a fair trial; (4) errors *338 in law occurring at the trial and excepted to by the plaintiffs.
 [2] Section 657 of the Code of Civil Procedure provides that when a new trial is granted upon the ground of the insufficiency of the evidence to sustain a verdict, the order shall so specify in writing, and that when such order does not so state it will be conclusively presumed on appeal that the order was not based upon that ground. Since the order in this case did not so specify, we must conclude that the trial court did not grant the new trial because of insufficiency of the evidence, and that it considered the evidence sufficient to sustain the verdict as to both plaintiffs. We might speculate that the trial court considered that a new trial should be denied plaintiff William A. Greer because there was sufficient evidence to show that he was negligent, but that his negligence was not imputable to Anna Greer who was merely a guest in his car, and that she should be granted a new trial because the court was not satisfied that the evidence showed that defendant Freitas was without negligence. But the failure of the court to state in its order that insufficiency of the evidence was the ground upon which the new trial was granted compels the conclusion by this court that such was not the basis for its order.
 [3] Likewise we must assume that the new trial was not granted upon the third ground above stated, since section 658 of the Code of Civil Procedure requires that application for a new trial on such ground must be made upon affidavits, and none were filed.
 [4] The second and fourth grounds of the motion may be considered together. There being no brief in behalf of respondent, we are not advised as to why and in what respects, if at all, plaintiffs contended before the trial court that the verdict was against law. It is said in Mosekian v. Ginsberg, 122 Cal.App. 774, 776 [10 P.2d 525], that the expression "against law" as used in section 657 of the Code of Civil Procedure relates to matters which may furnish a reason for the reexamination of an issue of fact. Insufficiency of the evidence might, we assume, furnish a reason for reexamination of an issue of fact; but in the case before us, the trial court plainly did not grant the new trial on that ground. And if the new trial was granted because the court thought the verdict was against law because of errors committed during the course of the trial, we have not been enlightened as to what *339 were deemed to be such errors; and it would seem, also, that errors of law justifying a new trial as to Anna Greer would have justified a new trial as to her coplaintiff.
 However, we have examined the record including the testimony, the rulings of the court and the instructions, and find no such errors. Our conclusion is that the trial court erred in granting a new trial to plaintiff Anna Greer. Its order granting such new trial is, therefore, reversed with orders to enter judgment for defendants in conformity with the verdict of the jury.
 Thompson, J., and Peek, J., concurred.


                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

 ESTHER WILLIAMS,

           Plaintiff,
                  v.                                      Civil Action No. 07-0714 (JDB)
 ROBERT CURINGTON,1

           Defendant.

                                 MEMORANDUM OPINION

       Plaintiff Esther Williams brings this action against defendant Robert Curington.2 The

dispute concerns the rights to Williams's 1975 recording of the song "Last Night Changed It All

(I Really Had A Ball)." Williams claims that she has held the copyright to the sound recording

of the song since 1977, but Curington claims that he holds the copyright. In the mid-2000s,

Curington sold non-exclusive licenses for the sound recording to Island Def Jam Music Group

("Def Jam") and Interscope Geffen A&M Records ("Interscope"). Williams asserts claims

against Curington for copyright infringement pursuant to the Copyright Act of 19093 ("Copyright

Act"), as well as common law claims for breach of contract, false light, and violation of the right

       1
       The Court adopts the spelling of defendant's name used in his motion for summary
judgment.
       2
        All of the original defendants to this action other than Curington have either reached
settlement agreements with Williams or otherwise been dismissed from the case, leaving
Curington as the sole remaining defendant.
       3
         The Copyright Act of 1909 governs copyrighted works created before 1978. See Self-
Realization Fellowship Church v. Ananda Church of Self-Realization, 206 F.3d 1322, 1325 (9th
Cir. 2000); 17 U.S.C. § 301(a).

                                                -1-
of publicity. Currently before the Court is a motion for summary judgment from Curington. For

the reasons discussed below, this motion will be granted in part and denied in part.

                                        BACKGROUND

       Williams is a singer who recorded her first album, "Let Me Show You," on the Bullseye

Records label ("Bullseye") in 1975. Am. Compl. ¶ 7. This album included the song "Last Night

Changed It All." Id. At issue in this case are Curington's allegedly impermissible grants of non-

exclusive licenses to sample that song to Interscope around 2002 and to Def Jam in 2004. See

id. ¶¶ 25, 27, 31. Williams's and Curington's accounts of the ownership history of the sound

recording to "Last Night Changed It All" differ markedly and form the core of their dispute.

       Curington and Williams agree that on December 19, 1975, Williams entered into a

contract with Bullseye with respect to her recordings with the company. Id. ¶ 8; Curington

Mem. at 3. At this point, however, their stories diverge. Williams contends that, through her

contract with Bullseye, she transferred her copyright in the sound recording of "Last Night

Changed It All" to the company.4 Am. Compl. ¶ 8. In exchange, she claims that Bullseye

promised to pay her royalties based on record sales and render her regular periodic accounting

statements of revenue generated from these sales. Id. Williams asserts that the term of the

contract was one year followed by four one-year consecutive extensions at Bullseye's option. Id.

According to Williams, she immediately asked for a copy of the signed contract, but was not

provided with a copy until several months after signing. Williams Aff. ¶¶ 10-11. She contends

       4
        Although Williams does not discuss how she initially obtained the copyright to the
sound recording of "Last Night Changed It All," based on her version of events, it appears that
ownership would have automatically vested in her as the author of the work, pursuant to the
Copyright Act. See Pub. L. 80-281 § 9, 61 Stat. 652, 655 (1947).

                                                -2-
that this copy of the contract contained several terms that were not discussed previously and that

she did not recall being in the original copy that she signed. Id. ¶ 11. Curington was allegedly

absent from the contract signing and all related discussions, and was in no way affiliated with

Bullseye at this time. Id. ¶¶ 13-16; see Wheeler Aff. ¶ 9; Drennen Aff. ¶ 10.

       Williams alleges that Bullseye breached its contract with her by failing to make any

royalty payments or render any accounting statements to her. Am. Compl. ¶ 11. Thus,

according to Williams, her contract with Bullseye was either void or unenforceable on or before

March 1, 1977. Id. Williams contends that since that date, she has retained the copyright to the

master recording of "Last Night Changed It All." Id. ¶ 12. In support of her contention,

Williams points to a Certificate of Registration from the U.S. Copyright Office -- effective,

January 17, 2006 -- which shows that she was a renewal claimant for the copyright of the "Last

Night Changed It All" sound recording. Pl.'s Opp'n, Ex. 3. She highlights the fact that the

Copyright Office itself sent her the application. Am. Compl. ¶ 13.

       Curington, on the other hand, contends that Williams never held the copyright to "Last

Night Changed It All" because she was a "work for hire" employee at Bullseye. Curington

Mem. at 2. Hence, he alleges that Bullseye always held the copyright to the sound recording of

"Last Night Changed It All."5 See id. Moreover, he contends that the contract Williams signed

with Bullseye provided for Bullseye's ownership of "Last Night Changed It All." Id. Curington

has produced a contract between Williams and Bullseye, signed on December 19, 1975, that

gave Bullseye "the sole, exclusive and perpetual ownership of and in masters made hereunder,

       5
        Under the Copyright Act, an employer is the "author" of a "work[] made for hire." Pub.
L. No. 60-349, § 62, 35 Stat. 1075, 1087 (1909).

                                                -3-
including, but not limited to, all master recordings" produced by Williams for Bullseye.6

Curington Mot., Ex. D ¶ 5(A)(v). The contract also provides that "recording costs and all

payments to [Williams], if any, with respect to the recordings made hereunder, shall be charged

to [Williams] as non-returnable advances against [Williams's] royalties . . . and shall be deducted

from [Williams's] royalties when earned." Id. ¶ 3(e). Curington contends that Bullseye made at

least $11,339 in advances to Williams, but her first album sold only fourteen copies. Curington

Mem. at 7. According to Curington, then, the contract's provision that Bullseye would recoup its

costs before Williams was entitled to royalties explains why Williams never received any

royalties. See id. To support his proposition that Williams does not hold the copyright to "Last

Night Changed It All," Curington also points to a 2000 agreement for the rights to the song

between Williams and Mercer Street Music, Inc., a recording company. Curington Mot., Ex. G

at 1. This agreement states that Williams "was unsuccessful in definitively determining legal

ownership of the Master and is able to grant only those rights in law held by her as the Artist of

the Recording." Id.

       Beyond the conflicting versions of Williams's interest in the sound recording, Curington's

account of his own relationship with Bullseye -- and his interest in "Last Night Changed It All" -

- is also inconsistent. In his affidavit, he contends that he became a partner of Bullseye in 1976

and that he remains a representative of that company. Curington Aff. ¶¶ 2-4, 15. Thus, he

claims that he is authorized to negotiate licenses for use of "Last Night Changed It All" as a

Bullseye representative. See id. ¶¶ 15-16. However, at his deposition, Curington acknowledged

       6
        For her part, Williams denies that this is the contract she signed with Bullseye. Pl.'s
Statement of Material Facts ¶ 2.

                                                -4-
that Bullseye went out of business in the mid-1980s. Curington Dep. at 49. He also stated that

he was involved with Bullseye only as a producer and publisher. Id. at 17, 75. According to

Curington's deposition testimony, he received a fifty percent interest in the publishing rights to

"Last Night Changed It All" around 1980-1981 in return for production work he performed for

Bullseye. Id. at 25-26.

       On June 22, 2004, Curington entered into a non-exclusive licensing agreement with Def

Jam for the use of "Last Night Changed It All." Pl.'s Opp'n, Ex. 2. Pursuant to that agreement,

Def Jam sampled "Last Night Changed It All" on "Last Night Skit," a track by the rap artist

Ghostface Killah, released on April 20, 2004. Am. Compl. ¶ 15. Williams says that she

discovered this sampling in or about 2005. Id. Williams also contends that she discovered

another unauthorized sample, which was used in the song "Late Night" by rap artist Tupac

Shakur, released by Interscope on November 26, 2002. Id. ¶ 27.

       On April 19, 2007, Williams filed a complaint against Curington and several other

defendants in this Court. She filed an amended complaint on October 19, 2007. Apart from

Curington, all other defendants have reached settlement agreements with Williams or have

otherwise been dismissed from the case. Williams asserts claims against Curington for breach of

contract (Count I), copyright infringement (Count II), false light (Count III), and violation of the

right of publicity (Count IV). On October 20, 2008, Curington filed a motion for summary

judgment, which focuses solely on Counts I and II. Curington argues that Williams's copyright

infringement and breach of contract claims are time-barred and, in any event, that he is entitled

to summary judgment on the copyright claim because Williams never owned a copyright for the

sound recording of "Last Night Changed It All." Curington Mot. at 8-12.

                                                -5-
                                      LEGAL STANDARD

       Summary judgment is appropriate when the pleadings and the evidence demonstrate that

"there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial

responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its

motion by identifying those portions of "the pleadings, the discovery and disclosure materials on

file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material

fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

       In determining whether there exists a genuine issue of material fact sufficient to preclude

summary judgment, the court must regard the non-movant's statements as true and accept all

evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the

"mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to

the absence of evidence proffered by the non-moving party, a moving party may succeed on

summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50

(citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence

on which the jury could reasonably find for the [non-movant]." Id. at 252.

                                           ANALYSIS

I.     Statute of Limitations

       The Copyright Act sets forth a three-year statute of limitations for civil actions. Pub. L.

                                                -6-
No. 85-313 § 115(h), 71 Stat. 633, 633 (1957). Curington contends that the statute of limitations

for Williams's copyright infringement claims has expired because it arises from a recording

agreement that she signed in 1975.7 See Curington Mem. at 10-11. In response, Williams argues

that the Copyright Act does not prohibit copyright owners from pursuing copyright claims

occurring more than three years before filing suit if the owner did not discover, and reasonably

should not have discovered the infringement before the commencement of the three-year period.

Pl.'s Opp'n at 8-9. She also contends that "[e]ach individual sale of product containing

unauthorized samples of [her] copyrighted sound recording constitutes a separate and distinct act

of infringement." Am. Compl. ¶ 48.

       "A cause of action for copyright infringement accrues when one has knowledge of the

infringement or is chargeable with such knowledge." Tech 7 Sys., Inc. v. Vacation Acquisition,

Inc., 594 F. Supp. 2d 76, 83 (D.D.C. 2009) (citing opinions from the Sixth and Ninth Circuits).

Here, the release date of each allegedly infringing song is an appropriate date on which to begin

       7
          Curington also argues that the statute of limitations for Williams's breach of contract
claims has expired. Curington Mem. at 10. Although Williams asserts her breach of contract
claim against Bullseye and Curington, Am. Compl. ¶ 38, Williams also contends, contradictorily,
that Curington was not a party to the contract at issue, see Williams Aff. ¶¶ 6, 14. No person can
be sued for breach of contract who is not a party to the contract. See Cannon Eng'g Co. v.
Merando, Inc., 250 F.2d 421, 422 (D.C. Cir. 1957). Hence, Williams cannot sue Curington for
breach of contract. Even if Curington was a proper defendant, Williams's claim fails because the
alleged breach occurred over thirty years ago, see Am. Compl. ¶ 11, and any breach of contract
claim based on the contract between Williams and Bullseye would be time-barred, regardless of
which state's law governs this dispute, see Durkin v. Nassau County Police Dep't, 175 F. App'x
405, 408 (2d Cir. 2006) (New York's six-year statute of limitations for breach of contract claims
begins at the time of breach); Material Supply Int'l, Inc. v. Sunmatch Indus. Co., 146 F.3d 983,
991-92 (D.C. Cir. 1998) (stating general rule that under District of Columbia law, the three-year
statute of limitations for breach of contract claims begins to run at the time of breach).
Accordingly, the Court will grant summary judgment in favor of Curington on the breach of
contract claim (Count I).

                                               -7-
running the statute of limitations. See Ortiz v. Guitian Bros. Music, Inc., No. 07-CV-3897, 2008

WL 4449314, at *3 (S.D.N.Y. Sept. 29, 2008) ("Public distribution of the work at issue bearing

copyright notices in the name of the defendant(s) which exclude the plaintiff claiming to own the

subject copyright has been held to create sufficient notice to begin the running of the statute of

limitations."). "Last Night Skit" was released on April 20, 2004, within three years of the date

Williams filed her original complaint -- April 19, 2007. See Am. Compl. ¶ 15. Thus, the

copyright infringement claims regarding "Last Night Skit" -- contained in Count II of the

amended complaint -- were timely filed.

       "Late Night," however, was released by Interscope on November 26, 2002, about four-

and-a-half years before Williams filed her complaint in this Court. See id. ¶ 27. Williams

contends that all claims related to "Late Night" should be considered timely because she "was

not a fan of Tupac Shakur, or of his genre of music, and was unaware of the sampling of her

music at the time it occurred." See Pl.'s Opp'n at 10. Courts have been careful not to make the

statute of limitations for copyright infringement too harsh -- such as by barring a claim when a

plaintiff "through no fault of its own, discovers an act of infringement more than three years after

the infringement occurred." Polar Bear Prod., Inc. v. Timex Corp., 384 F.3d 700, 706 (9th Cir.

2004). Nevertheless, a copyright plaintiff does have "a duty of diligence: it is not enough that

he did not discover he had a cause of action, if a reasonable man could have." Id. at 707 (citation

omitted). Williams characterizes herself as an "internationally known singer" who has

"established a pattern of exercising her rights in the sound recording [of "Last Night Changed It

All"] by negotiating licensing agreements with other prominent artists within the industry." Am.

Compl. ¶¶ 6, 14. As a self-proclaimed music industry insider with an interest in "Last Night

                                                -8-
Changed It All," it is reasonable to conclude that Williams should have discovered the sampling

in "Late Night" within three years of its release. Therefore, Williams's copyright infringement

claims arising out of sales of "Late Night" that occurred more than three years before her

complaint was filed are time-barred. However, any copyright infringement claims arising from

individual sales of this song within three years of the filing of the complaint are timely. See

Lyons P'ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 797 (4th Cir. 2001) ("each sale or

rental should be considered separately under an infringement analysis"). Hence, Count II may

proceed with respect to any infringement claims -- whether related to "Last Night Skit" or "Late

Night" -- arising out of sales that occurred within the three-year period prior to commencement

of this action (i.e., subsequent to April 19, 2004).8

II.    Copyright Ownership

       To establish copyright infringement, "two elements must be proven: (1) ownership of a

valid copyright, and (2) copying of constituent elements of the work that are original." Feist

Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Whether Williams owns a valid

copyright to the sound recording of "Last Night Changed It All" is the central issue in

Curington's motion for summary judgment.9 See Curington Mem. at 8-9. The parties have

presented the Court with three conflicting accounts of the ownership of the sound recording

copyright. In brief, Williams contends that she transferred her copyright interest in the recording

       8
        The limitation on the "Late Night" claims will primarily affect a potential damages
award. See Hoste v. Radio Corp. of Am., 654 F.2d 11, 11 (6th Cir. 1981).
       9
          Although Curington also discusses the ownership to the copyright for the music and
lyrics of "Last Night Changed It All," Curington Mem. at 4, Williams claims only the copyright
to the sound recording, not the authorship or publishing rights to the song, Williams Aff. ¶ 17.

                                                  -9-
to Bullseye in 1975. Am. Compl. ¶ 8. Since Bullseye allegedly breached its contract with

Williams, on or before March 1, 1977, she claims that she has retained the copyright and offers

her 2006 Certificate of Registration from the U.S. Copyright Office as evidence. Id. ¶¶ 12-13;

Pl.'s Opp'n, Ex. 3. Curington advances two stories, each of which he claims support his

ownership of the copyright in question. Curington first contends that he became a partner of

Bullseye in 1976 and that he remains a representative of the company. Curington Aff. ¶¶ 2-4,

15. Thus, he alleges that he is authorized to negotiate licenses for the use of "Last Night

Changed It All" as a Bullseye representative. See id. ¶¶ 15-16. Curington also asserts that he

was involved with Bullseye as a producer and publisher, Curington Dep. at 17, 75, and received

a fifty percent interest in the publishing rights to "Last Night Changed It All" around 1980-81 in

return for production work he performed for Bullseye. Id. at 25-26.

       Curington, as the party seeking summary judgment, has not met his burden of

demonstrating the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323.

Here, the facts that underlie the ownership issue are almost all disputed by the parties.

Moreover, the "undisputed facts" that Curington has set forth -- largely contained in his

deposition testimony, affidavit, and brief -- depend significantly on his credibility. His

credibility, which Williams has called into question, is an issue for the jury, not the Court, to

resolve. See Anderson, 477 U.S. at 255 ("Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of

a judge."). At a minimum, then, the 2006 Certificate of Registration that Williams has provided,

when considered in light of Curington's assertions of his own copyright ownership, raises a

"genuine issue of material fact" as to the ownership of the copyright in question. See Fed. R.

                                                -10-
Civ. P. 56(c). Hence, Curington's motion for summary judgment will be denied with respect to

Williams's timely copyright infringement claims.

III.    Tort Claims

        In her amended complaint, Williams also asserts claims for false light (Count III) and

violation of the right of publicity (Count IV). Although the parties do not address these claims in

their briefs, the Ninth Circuit has held that state law claims may be preempted by the Copyright

Act in certain circumstances. Laws v. Sony Music Entm't, 448 F.3d 1134, 1137 (9th Cir. 2006).

To determine whether preemption applies, first the Court must "determine whether the 'subject

matter' of the state law claim falls within the subject matter of copyright." Id. Second, the Court

"must determine whether the rights asserted under state law are equivalent to the rights contained

in [the Copyright Act]." Id. at 1137-38. The subject matter of Williams's false light and right of

publicity claims -- the sound recording of "Last Night Changed It All" -- is the same as that of

her alleged copyright. With respect to the second prong of the preemption test, the Court must

compare the purposes of the "false light" and "right of publicity" causes of action with those of

the Copyright Act. The "interest in permitting a 'right of publicity' is in protecting the

proprietary interest of the individual in his act in part to encourage such entertainment."

Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 573 (1977). Because "[b]oth copyright

and the right of publicity are means of protecting an individual's investment in his or her artistic

labors," they protect equivalent rights. Laws, 448 F.3d at 1145. In contrast, "'[t]he interest

protected' in permitting recovery for placing the plaintiff in a false light 'is clearly that of

reputation." Zacchini, 433 U.S. at 573. This is not an interest that is protected under copyright

law. See Baltimore Orioles, Inc. v. Major League Baseball Ass'n, 805 F.2d 663, 678 n.26 (7th

                                                  -11-
Cir. 1986). Hence, judgment will be entered in favor of Curington on Count IV (violation of the

right of publicity) because that claim is preempted by the Copyright Act, but Williams's false

light claim (Count III) will be allowed to proceed.

                                        CONCLUSION

         For the foregoing reasons, Curington's motion for summary judgment will be granted in

part and denied in part. The motion will be granted with respect to Williams's copyright

infringement claims based upon conduct that occurred more than three years before her

complaint was filed (Count II) and with respect to her common law breach of contract claim

(Count I). Judgment will also be entered in favor of Curington on Count IV (violation of the

right of publicity) and that claim will be dismissed. However, the Court will deny Curington's

motion with respect to Williams's timely copyright infringement claims (Count II), which may

proceed along with her false light claim (Count III). A separate Order accompanies this

Memorandum Opinion.

                                                                  /s/
                                                           JOHN D. BATES
                                                      United States District Judge

Dated:    August 24, 2009

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