NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IRWIN, Judge.

I. INTRODUCTION

Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Lloyd Allen appeals his conviction in the district court for Sarpy County, Nebraska, on charges of terroristic threats and being a habitual criminal. On appeal, Allen challenges the district court's denial of his pretrial motion in limine, the district court's denial of two motions for mistrial made during the trial, the district court's denial of a motion to dismiss at the conclusion of the evidence, the district court's failure to give a lesser-included offense instruction on attempted terroristic threats, and the district court's failure to find that the State did not sufficiently allege the habitual criminal charge in the information. We find each of these assertions to be meritless, and we affirm.

II. BACKGROUND

On January 2, 2010, Allen was in the Sarpy County jail awaiting sentencing on a charge unrelated to the present case. Kathy Long, a probation officer in Sarpy County, went to the jail to interview Allen for purposes of preparing a presentence investigation report. Long met with Allen in an interview room that was approximately 8 feet by 10 feet in size, had two locked doors and three windows, and a table and two chairs. When an inmate is interviewed by probation officers, the inmate is escorted to the room by a guard and then is left alone, unshackled, with the probation officer. There is an intercom system that allows the probation officer to call for a guard if needed.

Long testified that Allen was escorted to the interview room wearing an orange jumpsuit with snaps along the front. Long testified that Allen was quiet at the beginning of the interview and indicated that he was anxious, but then he became "chatty, animated, eager to talk" as the interview progressed. Long testified that she discussed Allen's legal/criminal background, educational background, employment background, marital and family history, and any prior issues concerning chemical use. During this discussion, Allen provided "lots of information."

Approximately 2½ hours into the interview process, Long noticed that Allen had become quiet, had his eyes closed, and was moving his head "back and forth." Long then noticed that Allen was leaning into the table and had one of his hands in his lap. Long testified that Allen had previously indicated to her that "he had been in trouble before for masturbating in front of people on several occasions." Long believed that Allen was engaging in inappropriate sexual activity of his own genital area.

Long closed her file and told Allen that the interview was over. She then instructed Allen to go across the room, push the intercom buzzer, and call for the guards to come and get him. She testified that she was deliberately calm and asked Allen to push the intercom buzzer to get him distracted and to stop whatever activity he was doing with his hands in his pants. Allen, instead of complying, placed his other hand on top of Long's file and attempted to ask her a question. Long then stood and crossed the room to push the intercom buzzer. She testified that she looked back at Allen and observed his hand coming out of his underwear, which was inside his jumpsuit.

After Long pushed the intercom buzzer and called for a guard to escort Allen out of the interview room, she was informed that a guard would be sent, and she returned to her seat at the interview table. At that point, Allen began to ask why the interview was being stopped and Long informed Allen that it was inappropriate for him to be touching his genital area during a professional setting. Allen then indicated that he needed to use the restroom and asked Long about his chances for probation after this incident occurred.

Long testified that Allen told her he needed to get probation and that "[i]f he was sent back to prison he would kill somebody." Long then pushed the intercom buzzer and called for a guard a second time, and she testified that her "voice was more urgent this time." The jail receptionist answering the intercom indicated that it would be a bit longer before a guard could get to the interview room because "the guards were serving lunch trays."

Long testified that Allen's demeanor and expression changed. She testified, "[H]is body was more tense. His face was red. [His] eyes were kind of wild, bugging out of [his] head." Long testified that Allen then said that if he "wanted to hurt [her], [he] could take this pen and . . . stab it in [her] neck and kill [her] instantly. He indicated he had seen that before. And that he could grab [her] breasts and he could sexually assault [her] before any guards come and get [her]."

Long testified that she was afraid and that she took Allen's threats seriously. She testified that she took the threats seriously because Allen had told her he would kill somebody if he went back to prison, because his chances of probation appeared threatened when she had caught him being sexually inappropriate, and because of her interaction with him. A Sarpy County sheriff's office investigator testified that she interviewed Allen in the course of investigating Long's report of this incident and that during that interview, Allen "made reference that he could see how [Long] would feel threatened" by his statements and the circumstances of being in a locked room at the time.

Long testified that she tried to calm Allen down and asked why he would do something "like that," reminding him that he was being held "on a five-year charge," had "already been in the jail for one year," and would likely "be in and out in 18 months." Long testified that Allen stared at her and indicated, "well, I wouldn't do that anyway." A guard then arrived and escorted Allen from the interview room.

Allen was charged by information with making terroristic threats and with being a habitual criminal. Prior to the trial, he filed a motion in limine in which he sought to exclude testimony about his prior convictions, about Long's training and expertise in interviewing sexual offenders, and about statements made during Long's interview with Allen about his prior criminal history. The district court overruled the motion in limine. After a jury trial, Allen was found guilty on the terroristic threats charge and the court found him to be a habitual criminal. Allen was sentenced to 10 to 20 years' imprisonment. This appeal followed.

III. ASSIGNMENTS OF ERROR

Allen has assigned five errors. First, he asserts that the district court erred in overruling his pretrial motion in limine. Second, he asserts that the court erred in denying two motions for mistrial made during the course of the trial. Third, he asserts that the court erred in denying his motion to dismiss made at the conclusion of the evidence. Fourth, he asserts that the court erred in not giving a lesser-included offense instruction on attempted terroristic threats. Finally, he asserts that the court erred in not finding that the State did not sufficiently charge him with being a habitual criminal in the information.

IV. ANALYSIS

1. MOTION IN LIMINE

Allen first challenges the district court's denial of his motion in limine. The motion sought the exclusion of testimony about Allen's prior convictions, about Long's training and expertise in interviewing sexual offenders, and about statements made during Long's interview with Allen about his prior criminal history. Although the district court denied the motion, there was no testimony at trial about most of these matters, and we find no merit to Allen's assertions concerning the remainder.

(a) Allen's Prior Convictions

Allen has not demonstrated that there was any testimony at trial concerning his prior convictions, and our review of the record does not reveal any such testimony. As such, there is no merit to Allen's assertion that there was any prejudicial error concerning the district court's denial of this portion of the motion in limine.

(b) Long's Training and Expertise

Allen has not demonstrated that there was any testimony at trial concerning Long's training and expertise in interviewing sexual offenders, and our review of the record does not reveal any such testimony. As such, there is no merit to Allen's assertion that there was any prejudicial error concerning the district court's denial of this portion of the motion in limine.

(c) Statements During Interview About Prior Criminal History

Long was deposed prior to trial concerning the events giving rise to this case. In his motion in limine, Allen sought to have the court exclude from trial statements made during Long's interview of Allen that concerned Allen's prior criminal history. Allen provided specific annotations to Long's deposition to indicate the statements he sought to have excluded. The statements included Long's observation during her deposition that she had discussed Allen's criminal history during the interview and that the criminal history was lengthy; Allen's statement that he needed probation and that if he went back to prison he would kill somebody; Long's statements to Allen during the interview about him being in jail on a 5-year charge, having been in for 1 year already, and likely being out in another 18 months; and Long's statement in her deposition that she had been interviewing Allen in relation to a conviction for failing to register as a sex offender.

Allen has not demonstrated that there was any testimony at trial concerning his criminal history being lengthy or about the fact that Long had been interviewing him in relation to a conviction for failing to register as a sex offender, and our review of the record does not reveal any such testimony. As such, there is no merit to Allen's assertion that there was any prejudicial error concerning the district court's denial of this portion of the motion in limine. As such, the only portion of the motion in limine that needs to be analyzed on appeal is the portion concerning Allen's statement to Long during the interview that he needed to get probation and that if he went back to prison, he would kill somebody, and Long's statement to Allen concerning the potential sentence for the offense he was awaiting sentencing on.

(i) Standard of Review

Because overruling a motion in limine is not a final ruling on admissibility of evidence and, therefore, does not present a question for appellate review, a question concerning admissibility of evidence which is the subject of a motion in limine is raised and preserved for appellate review by an appropriate objection to the evidence during trial. State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).

(ii) Allen's Statement to Long

Allen first asserts that the district court erred in overruling his motion in limine and in allowing testimony at trial concerning his statement to Long during the interview that he needed probation and that if he went back to prison he would kill somebody. We find that this statement was inextricably intertwined with the charged crime and not considered extrinsic evidence of other crimes or bad acts, and therefore, we find no merit to Allen's assertions concerning this statement.

The Nebraska Supreme Court has recognized that other bad acts evidence which is inextricably intertwined with the charged crime is not considered extrinsic evidence of other crimes or bad acts and that, therefore, Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2008), does not apply to prevent its admissibility. State v. Almasaudi, supra. See State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004). Evidence of such acts is sometimes termed "`same transaction evidence.'" State v. Almasaudi, 282 Neb. at 177, 802 N.W.2d at 124. This exception to rule 404 coverage has been applied in cases where the acts were inextricably intertwined with the charged offense and committed as part of a continuing crime to carry out the same objective, in furtherance of the same crime spree, to conceal previous crimes, and when the conduct was necessary to show a coherent picture of the facts of the crime charged. Id. See, also, State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2011); State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v. Wisinski, supra; State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003); State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002); State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002). Where it applies, rule 404 generally precludes the admission of evidence of other crimes, wrongs, or acts to prove the character of the person to show that he or she acted in conformity therewith, but allows admission of such evidence for other relevant purposes. See State v. Almasaudi, supra.

In the present case, Allen's motion in limine sought to exclude Long's testimony that during the interview Allen told Long that he needed to get probation and that if he went back to prison, he would kill somebody. When Long began to so testify at trial, Allen made multiple objections and asserted that the testimony would violate rule 404.

We find that this statement was not rendered inadmissible by rule 404 because it was inextricably intertwined with the charged crime, was actually part of the charged crime, and was necessary to show a coherent picture of the facts of the crime charged. Allen was charged with making terroristic threats to Long during her interview of him. In addition to Allen's later statements indicating that he could stab Long in the neck with a pen and kill her instantly and that he could grab her and sexually assault her before any guard could arrive, Long's testimony indicated that this statement about Allen's killing somebody if he went back to prison played a role in her taking his threats seriously and in being afraid. She testified that she believed his threats to her, in part, because he had indicated a need for probation and indicated he would kill somebody if he went back to prison and because his chances for probation were diminished when she caught him masturbating during the interview.

Because this statement was inextricably intertwined with the terroristic threats charge, its admission was not precluded by rule 404. As such, we find no merit to Allen's assertions on appeal concerning this statement.

(iii) Long's Statement to Allen

Allen next challenges the district court's overruling of his motion in limine and admission of testimony by Long that she tried to calm Allen by reminding him that he was being held on a 5-year charge, had already been in for 1 year, and would likely be out in approximately 18 months. Allen failed to object when Long testified at trial concerning this statement, and we accordingly find no merit to Allen's assertion on appeal.

As noted, because overruling a motion in limine is not a final ruling on the admissibility of evidence and does not present a question for appellate review, a question concerning the admissibility of evidence which is the subject of a motion in limine is raised and preserved for appellate review by an appropriate objection during trial. State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011); State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002). When a court overrules a motion in limine to exclude evidence, the movant must object when the evidence sought to be excluded by the motion is offered during trial. State v. Timmens, supra.

During her testimony at trial, Long testified that she tried to calm Allen after he made statements about being able to stab her in the neck with a pen and kill her instantly and about being able to sexually assault her before a guard could come. She testified that she tried to calm him by saying, "I don't know why you would do something like that, you're here on a 5-year charge. You've already been in the jail for one year, with good time that's 18 months. You'll be in and out in 18 months. Why would you go and make it worse." Allen made no objection at trial to this testimony, which he earlier sought to exclude through the motion in limine. Thus, we conclude that he failed to preserve the alleged error for appellate review. See id.

2. MOTIONS FOR MISTRIAL

Allen next asserts that the district court erred in denying two motions for mistrial made during the course of the trial. The first motion was made during testimony and in conjunction with an objection to Long's testimony that Allen told her he needed to get probation and that if he went back to prison he would kill somebody and the second motion was made during the State's rebuttal argument in closing arguments concerning the State's argument that the testimony indicated that Allen told Long he had previously tried to kill somebody in prison. We find no merit to Allen's assertion that the court erred in denying either motion for mistrial.

(a) Standard of Review

The decision whether to grant a motion for mistrial is within the trial court's discretion and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v. McBride, 19 Neb.App. 277, 804 N.W.2d 813 (2011). The defendant must prove that the alleged error actually prejudiced him or her, rather than creating only the possibility of prejudice. Id.

(b) First Motion for Mistrial

Allen made his first motion for mistrial during Long's testimony. When Long testified that Allen told her he needed to get probation and that if he was sent back to prison, he would kill somebody, Allen objected that the testimony violated rule 404 and moved for a mistrial. The trial court overruled both the objection and the motion for mistrial.

As noted above, the testimony did not violate rule 404 and was properly admissible as inextricably intertwined with the factual context and circumstances for which Allen was charged with making terroristic threats. As a result, Allen has not shown any improper prejudice from the statements or any abuse of discretion by the district court in denying a mistrial because Long presented admissible testimony. This assertion of error is meritless.

(c) Second Motion for Mistrial

Allen made his second motion for mistrial during the State's rebuttal argument in closing arguments. During the State's initial closing argument, counsel for the State emphasized the context in which Allen made the statements about being able to stab Long in the neck with a pen and kill her instantly and about being able to sexually assault her before a guard could arrive. Counsel for the State emphasized "the information in the interview, which [Allen] tells [Long]," including the criminal history section of the presentence investigation report. Counsel for the State then argued to the jury that Allen had told Long about "his personal experiences. He told her that he tried to kill someone before in prison." Allen objected that counsel for the State was "assuming facts not in evidence." Counsel for the State asserted that "it was in evidence," and the court overruled the objection.

After Allen's counsel made his closing argument, the State provided a rebuttal argument. During that rebuttal argument, counsel for the State argued that the context in which the statements were made was important and asserted:

Allen again objected that counsel for the State was "assuming facts not in evidence" and requested a mistrial. The court again overruled the motion.

Both of Allen's objections to the State's reference to Allen's having told Long that he had tried to kill somebody in prison before were based on an assertion that the State was assuming facts not in evidence, and the same assertion provided the basis for Allen's second motion for mistrial. In fact, the argument did not assume facts not in evidence and there was testimony at trial supporting the argument. During Allen's counsel's cross-examination of Long, counsel asked Long if Allen had said that "he was going to kill [her]." Long responded, "No." Allen's counsel then asked, "Did he indicate that he was going to kill somebody in prison?" Long responded, "He indicated he had tried to do that before in prison." Allen's counsel then objected that the answer was nonresponsive, but the court overruled the objection and declared that the answer would stand. As such, we do not find an abuse of discretion by the district court in denying the second motion for mistrial.

3. MOTION TO DISMISS

Allen next asserts that the district court erred in denying his motion to dismiss at the conclusion of the evidence. We find that there was sufficient evidence to support a prima facie case for terroristic threats and find no merit to this assignment of error.

Neb. Rev. Stat. § 28-311.01 (Reissue 2008) provides that a person commits terroristic threats if he or she threatens to commit any crime of violence, inter alia, with the intent to terrorize another or in reckless disregard of the risk of causing such terror. For purposes of § 28-311.01, a threat may be written, oral, physical, or any combination thereof. State v. Curlile, 11 Neb.App. 52, 642 N.W.2d 517 (2002). To threaten is commonly understood to mean promising punishment, reprisal, or distress. State v. Methe, 228 Neb. 468, 422 N.W.2d 803 (1988). A direct expression of intent by the actor is not required, because the intent with which an act is committed involves a mental process and intent may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident. State v. Curlile, supra.

In this case, there was testimony that Allen and Long were alone in a locked room, seated at a very small table. The only means for Long to summon a guard was to push an intercom buzzer and request a guard to come to the room; in the present case, she actually did that twice and over a period of time before a guard actually did come to the room. There was testimony Allen told Long that he needed to get probation and that if he went back to prison, he would kill somebody. There was testimony that the likelihood of him receiving probation was diminished when Long caught him masturbating under the table during the interview and that Allen's physical demeanor demonstrated visible agitation. There was testimony that Allen stated to Long he could take a pen from the table and stab her in the neck with it, killing her instantly; that Allen stated to Long he could reach across the table and sexually assault her before any guard could arrive; and that Allen had at some point indicated to Long that he had previously attempted to kill somebody in prison.

In that context, when viewing the evidence in the light most favorable to the State, it is clear that a rational trier of fact could conclude that the State had proven that Allen committed the crime of terroristic threats. See State v. Curlile, supra. Allen's argument on appeal is primarily couched as an assertion that without the allegedly inadmissible testimony that we found admissible above, there would be insufficient evidence. As such, we find no merit to Allen's assertion that the court erred in not dismissing the case for failure to prove a prima facie case.

4. LESSER-INCLUDED OFFENSE INSTRUCTION

Allen next asserts that the district court erred in not giving a lesser-included offense instruction on attempted terroristic threats. We find no merit to this assertion.

As Allen concedes, there was no request made at trial for any lesser-included offense instruction. See State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986) (absent request it is not error for trial court to fail to give instruction even though warranted). He argues, however, that the lower court has an obligation to give warranted instructions even if not requested. See State v. Lamb, 213 Neb. 498, 330 N.W.2d 462 (1983). However, even assuming that the court had an obligation to give such an instruction if warranted, even if not requested, the instruction would not have been warranted in this case because there was no rational basis for acquitting Allen of terroristic threats and convicting him of attempted terroristic threats.

A court must instruct on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense. State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).

In this case, it is not clear that an attempt instruction would ever be appropriate when a defendant is charged with terroristic threats. The Nebraska Supreme Court has previously emphasized that the statute making terroristic threats a crime merely requires intent, and does not require that the recipient of a threat actually be terrorized and does not require any intent to execute the threats. State v. Smith, 267 Neb. 917, 678 N.W.2d 733 (2004). Allen has not cited to any authority that would support the giving of an instruction concerning an attempt to have the requisite intent to terrorize another.

However, putting aside the question of whether such an instruction could ever be warranted, such would not be warranted in the present case. In the present case, there is no rational basis for finding that Allen did not commit the crime of terroristic threats but somehow attempted to do so, and Allen has not provided any explanation of what such a rational basis would be. Indeed, Allen has provided no analysis of why a lesser-included offense instruction was warranted beyond a mere conclusion that "the evidence presented warranted such an instruction." Brief for appellant at 24. As such, we find no merit to this assignment of error.

5. SUFFICIENCY OF HABITUAL CRIMINAL CHARGE

Finally, Allen asserts that the district court erred in not finding that the State had failed to properly charge Allen as a habitual criminal. We find no merit to this assertion.

It is unclear from Allen's brief exactly what Allen asserts the State was obligated to do and did not do in this case. Allen notes that the State alleged that he had "at least twice previously been convicted of crimes, and sentenced and committed to prison in this or some other State, or by the United States, for terms of not less than one year each" and that he was a habitual criminal as defined by Neb. Rev. Stat. § 29-2221 (Reissue 2008). The remainder of his argument on appeal concerning this assignment of error concerns the State's not having sought amendment of the information and a reference that § 29-2221(2) requires the State, when charging someone with being a habitual criminal, to charge "`the facts with reference thereto.. . .'" Brief for appellant at 25.

It appears, and the State appears to believe, that Allen's assertion on appeal is that the State must actually list the defendant's prior convictions and sentences that form the basis of a habitual criminal charge. Allen provides no authority for this proposition, did not raise any challenge at the trial level concerning the sufficiency of the information, and does not challenge the actual assertion that he is a habitual criminal or that the State sufficiently proved his habitual criminal status in this case.

It has long been the law in Nebraska that the habitual criminal act does not create a new and separate criminal offense for which a person may be separately sentenced, but provides merely that the repetition of criminal conduct aggravates the guilt and justifies greater punishment than ordinarily would be considered. State v. Tyndall, 187 Neb. 48, 187 N.W.2d 298 (1971). Indeed, under the act, an inaccurate allegation of the date or time of a prior felony has no effect with respect to the sufficiency of the information charging a defendant with being a habitual criminal. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974). The essential allegations which an information must contain for a charge of habitual criminal, according to the Nebraska Supreme Court, are that the person has been (1) twice previously convicted of a crime, (2) sentenced, and (3) committed to prison for terms not less than 1 year each. Id. While it is undoubtedly desirable and helpful to have the dates of the prior felonies alleged in the information charging someone with being a habitual criminal, the absence of such an allegation does not render the information invalid. Id. As such, we find no merit to Allen's assertion, for the first time on appeal, concerning the sufficiency of the information.

V. CONCLUSION

We find no merit to Allen's assignments of error on appeal. We affirm.

AFFIRMED.