State v. Lowman , 308 Neb. 482 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/16/2021 09:08 AM CDT
- 482 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482State of Nebraska, appellee, v. Theardise
K. Lowman, Jr., appellant.
___ N.W.2d ___
Filed February 26, 2021. No. S-20-240.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
3. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
4. Effectiveness of Counsel: Appeal and Error. 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
prejudiced by counsel’s alleged deficient performance.
- 483 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 4825. Pretrial Procedure: Trial: Evidence: Appeal and Error. Where there
has been a pretrial ruling regarding the admissibility of evidence, a party
must make a timely and specific objection to the evidence when it is
offered at trial in order to preserve any error for appellate review.
6. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error.
The failure to object to evidence at trial, even though the evidence was
the subject of a previous motion to suppress, waives the objection, and
a party will not be heard to complain of the alleged error on appeal.
7. Appeal and Error. An objection, based on a specific ground and prop-
erly overruled, does not preserve a question for appellate review on
some other ground not specified at trial.
8. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure. The first tier of police-citizen encounters involves no restraint
of the liberty of the citizen involved, but, rather, the voluntary coopera-
tion of the citizen is elicited through noncoercive questioning. This type
of contact does not rise to the level of a seizure and therefore is outside
the realm of Fourth Amendment protection.
9. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Investigative Stops: Search and Seizure: Appeal and Error. The sec-
ond tier of police-citizen encounters, the investigatory stop, as defined
by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968), is limited to brief, nonintrusive detention dur-
ing a frisk for weapons or preliminary questioning. This type of encoun-
ter is considered a seizure sufficient to invoke Fourth Amendment safe-
guards, but because of its less intrusive character requires only that the
stopping officer have specific and articulable facts sufficient to give rise
to reasonable suspicion that a person has committed or is committing
a crime.
10. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Arrests: Search and Seizure: Probable Cause. The third type of
police-citizen encounters, arrests, is characterized by highly intrusive
or lengthy search or detention. The Fourth Amendment requires that an
arrest be justified by probable cause to believe that a person has com-
mitted or is committing a crime.
11. Constitutional Law: Search and Seizure. A seizure in the Fourth
Amendment context occurs only if, in view of all the circumstances sur-
rounding the incident, a reasonable person would have believed that he
or she was not free to leave.
12. Police Officers and Sheriffs: Search and Seizure. A seizure does not
occur simply because a law enforcement officer approaches an indi-
vidual and asks a few questions or requests permission to search an area,
provided the officer does not indicate that compliance with his or her
request is required.
- 484 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 48213. Police Officers and Sheriffs: Investigative Stops: Probable Cause.
Whether a police officer has a reasonable suspicion based on sufficient
articulable facts depends on the totality of the circumstances and must
be determined on a case-by-case basis.
14. Police Officers and Sheriffs: Probable Cause. In determining whether
a police officer acted reasonably, it is not the officer’s inchoate or unpar-
ticularized suspicion or hunch that will be given due weight, but the
specific reasonable inferences which the officer is entitled to draw from
the facts in light of the officer’s experience.
15. Constitutional Law: Warrantless Searches: Search and Seizure.
Warrantless searches and seizures are per se unreasonable under the
Fourth Amendment, subject to a few established and well-delineated
exceptions.
16. Warrantless Searches. The warrantless search exceptions Nebraska has
recognized include: (1) searches undertaken with consent, (2) searches
under exigent circumstances, (3) inventory searches, (4) searches of
evidence in plain view, and (5) searches incident to a valid arrest.
17. Warrantless Searches: Motor Vehicles. Nebraska has recognized that
among the established exceptions to the warrant requirement is the auto­
mobile exception.
18. Weapons: Motor Vehicles: Words and Phrases. A weapon is con-
cealed on or about the person if it is concealed in such proximity to the
driver of an automobile as to be convenient of access and within imme-
diate physical reach.
19. Effectiveness of Counsel: Proof: Words and Phrases. Generally, 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 his or her counsel’s performance was
deficient and that this deficient performance actually prejudiced the
defendant’s defense.
20. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record. Otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
21. Effectiveness of Counsel: Appeal and Error. The fact that an inef-
fective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved on direct appeal.
22. ____: ____. Assignments of error on direct appeal regarding inef-
fective assistance of trial counsel must specifically allege deficient
performance.
- 485 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 48223. Effectiveness of Counsel: Presumptions. The entire analysis of a claim
of ineffective assistance of counsel should be viewed with a strong pre-
sumption that counsel’s actions were reasonable.
24. Trial: Effectiveness of Counsel: Appeal and Error. Trial counsel is
afforded due deference to formulate trial strategy and tactics, and an
appellate court will not second-guess trial counsel’s reasonable strategic
tactics when reviewing claims of ineffective assistance of counsel.
Appeal from the District Court for Sarpy County: Stefanie
A. Martinez, Judge. Affirmed.
Gregory A. Pivovar for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Theardise K. Lowman, Jr., appeals from convictions, pursu-
ant to a jury verdict, for possession of a controlled substance
and two counts of carrying a concealed weapon. He argues
that the district court erred in overruling his motion to sup-
press evidence, that the evidence regarding a machete in his
vehicle was insufficient to convict him of carrying a concealed
weapon, and that he received ineffective assistance of counsel.
Finding no merit to any of his claims, we affirm the district
court’s judgment.
BACKGROUND
Facts
On April 8, 2019, at approximately 5:04 a.m., Officer James
Murray was on duty and patrolling in the area of a carwash.
The carwash was open at the time, but signs posted on the
building prohibit loitering. Murray observed a vehicle backed
into one of the wash bays. He believed a person was sitting
in the driver’s seat, and he did not see anybody outside of the
- 486 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482vehicle. Murray parked his cruiser and watched to see if the
occupant would wash the vehicle or leave.
After 5 minutes of not seeing or hearing activity, Murray
approached the vehicle. He noticed that the vehicle and the
concrete floor were dry. As Murray approached the passen-
ger’s side of the vehicle, Lowman started to leave the vehicle.
Murray asked if Lowman would move to the front of the
vehicle and speak with Murray, and Lowman agreed to do so.
Murray looked quickly inside the vehicle before speaking with
Lowman. Murray observed a car stereo on the front passen-
ger’s seat with numerous wires protruding from the back. He
also observed what appeared to be a metal pipe—which could
be used for smoking controlled substances—sticking between
the center console and the driver’s seat. Murray noticed that
Lowman was holding a torch-style lighter.
Lowman told Murray that he had been visiting a friend
in the area and chose the carwash to “do some thinking
and sort through some things.” Lowman stated that he had
been at the carwash for 1 to 2 hours. Murray noticed that
Lowman was “fidgety with his hands,” moving around a bit
on his feet, speaking with a rapid speech pattern, and speak-
ing at great length when answering simple questions. Murray
suspected that Lowman had engaged in drug use at the car-
wash. Murray asked whether Lowman had any weapons, and
Lowman answered that he did not have a weapon on his per-
son but volunteered that he had a machete inside the vehicle,
“tucked down by the center console.” Murray asked dispatch to
send another officer.
After backup arrived, Murray informed Lowman that he was
being detained and that Lowman and his vehicle were going
to be searched. Murray located a black zippered bag attached
to Lowman’s waistband which contained a digital scale, a
weight used for “zeroing out” the scale, unused jewelers’ bags
that are commonly used for storing controlled substances,
and two jewelers’ bags that contained an off-white crystalline
substance which appeared to be methamphetamine. A search
- 487 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482of Lowman’s vehicle uncovered a machete, a pair of brass
knuckles in the center console, and a black eyeglass case that
contained a broken glass methamphetamine pipe. An officer
testified that he could see the machete’s handle “sticking out
from in between the passenger’s seat.”
The State charged Lowman with possession of methamphet-
amine, carrying a concealed weapon (two counts), and posses-
sion of drug paraphernalia.
Motion to Suppress
In September 2019, Lowman filed a motion to suppress all
evidence obtained by the police as a result of the detention,
arrest, questioning, and search of Lowman along with the
search of his vehicle. Lowman alleged that there was no reason-
able suspicion or probable cause to search him or his vehicle
and that he was questioned in violation of his Miranda rights.
The motion was set to be heard on September 27, but Lowman
did not appear for the hearing. Lowman’s counsel withdrew the
motion. In October, Lowman filed another motion to suppress,
which contained the same allegations as the earlier motion. It
was heard the day before trial was set to begin.
The court overruled the motion to suppress. It found that
Murray had reasonable suspicion to conduct the initial stop
of Lowman. The court found that Lowman was not using the
carwash for its intended purpose, that signs were posted pro-
hibiting loitering, and that criminal activity had occurred there
previously. It further found that Lowman voluntarily agreed
to speak with Murray and that Lowman admitted to smok-
ing marijuana in the past and to having a machete concealed
in his vehicle. The court stated that Murray’s observation of
the torch-style lighter and an object appearing to be some-
thing in which suspects can hide controlled substances, along
with Lowman’s behavior, nonsensical answers, and change in
demeanor when asked if he had smoked methamphetamine,
contributed to Murray’s determination of probable cause for
arrest. Although Lowman was not advised of his Miranda
- 488 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482rights, the court noted that no questioning occurred after arrest.
The court agreed that Murray had probable cause to arrest
Lowman; accordingly, it found no Fourth Amendment viola-
tion when Murray searched Lowman pursuant to that arrest.
Trial
The court conducted a jury trial. Prior to the introduction
of evidence, Lowman’s counsel stated, “I do want to renew
my motion to suppress the detention, arrest, questioning, and
search of my client as well as the search of my client’s vehicle
. . . and essentially just renew the motion to suppress that I
refiled with the Court that was just ruled on yesterday.” The
court stated: “Okay, so that motion will be overruled, but I
assume that you’re renewing your motion for purposes of
appeal . . . should it get there. So, that issue will be preserved.”
On many—but not all—occasions, Lowman objected based
on the motion to suppress when the State offered exhibits
into evidence.
The jury returned a verdict of guilty as to possession of
a controlled substance and as to both counts of carrying a
concealed weapon, but not guilty as to the drug paraphernalia
charge. The court subsequently placed Lowman on probation
for 2 years.
Lowman promptly appealed, and we moved this case to
our docket. 1
ASSIGNMENTS OF ERROR
Lowman assigns two errors related to the evidence. He
alleges that the court erred in overruling his motion to sup-
press evidence and that the evidence was insufficient to support
the verdict.
Lowman also assigns that his trial counsel provided inef-
fective assistance. One assignment alleges, “The defendant
received ineffective assistance of counsel when defendant’s
counsel filed a last minute motion to suppress and was
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
- 489 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482ill-prepared and was unable to brief the issues for the court.”
The other alleges, “The defendant received ineffective assist­
ance of counsel when despite the urgings of the defendant[,]
counsel would not call witnesses who would have provided
corroboration that the defendant was in the area of the car wash
for some time and had a lawful purpose for being there.”
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 2
[2] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. 3
[3,4] Whether a claim of ineffective assistance of trial coun-
sel can be determined on direct appeal presents a question of
law, which turns upon the sufficiency of the record to address
the claim without an evidentiary hearing or whether the claim
rests solely on the interpretation of a statute or constitutional
requirement. 4 In reviewing claims of ineffective assistance
2
State v. Briggs, ante p. 84, 953 N.W.2d 41 (2021).
3
State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020).
4
State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020).
- 490 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482of 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 defend­
ant was or was not prejudiced by counsel’s alleged defi-
cient performance. 5
ANALYSIS
Motion to Suppress
We start by addressing the State’s waiver argument. The
State contends that Lowman waived his suppression claim to
some of the evidence—specifically, those items found as a
result of the search of his person—when he failed to renew
an objection to that evidence based on his motion to suppress.
We agree.
[5-7] Where there has been a pretrial ruling regarding the
admissibility of evidence, a party must make a timely and
specific objection to the evidence when it is offered at trial in
order to preserve any error for appellate review. 6 The failure to
object to evidence at trial, even though the evidence was the
subject of a previous motion to suppress, waives the objection,
and a party will not be heard to complain of the alleged error
on appeal. 7 Furthermore, an objection, based on a specific
ground and properly overruled, does not preserve a ques-
tion for appellate review on some other ground not specified
at trial. 8
At numerous times during the trial, Lowman’s coun-
sel objected and renewed the motion to suppress when the
State offered exhibits into evidence. However, counsel did
not impose an objection to specifically renew the motion to
5
State v. Lang, 305 Neb. 726, 942 N.W.2d 388 (2020), cert. denied ___
U.S. ___, 141 S. Ct. 415, 208 L. Ed. 2d 119.
6
State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).
7
Id.8
Id.- 491 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482suppress when the State offered into evidence the digital scale,
the torch-style lighter, bags containing the white crystalline
substance, and the weight contained in the black bag found
on Lowman. Instead, Lowman’s counsel imposed objections
based on such matters as foundation, authentication, and chain
of custody. Nor did counsel renew an objection based on the
motion to suppress when a forensic chemist testified that the
bags contained methamphetamine. The objection and renewal
of the motion to suppress at the beginning of trial did not pre-
serve the issue for review when no objection was made during
trial to the receipt of items of evidence found during a search.
Accordingly, we conclude Lowman failed to preserve the sup-
pression issue with regard to the evidence found during the
search of his person.
Before analyzing Lowman’s interactions with law enforce-
ment, we recount the three tiers of police-citizen encounters
under Nebraska law and the law regarding seizures in the con-
text of the Fourth Amendment.
[8] The first tier of police-citizen encounters involves no
restraint of the liberty of the citizen involved, but, rather,
the voluntary cooperation of the citizen is elicited through
noncoer­cive questioning. 9 This type of contact does not rise
to the level of a seizure and therefore is outside the realm of
Fourth Amendment protection. 10
[9] The second tier, the investigatory stop, as defined by
the U.S. Supreme Court in Terry v. Ohio, 11 is limited to
brief, nonintrusive detention during a frisk for weapons or
preliminary questioning. 12 This type of encounter is consid-
ered a seizure sufficient to invoke Fourth Amendment safe-
guards, but because of its less intrusive character requires only
that the stopping officer have specific and articulable facts
9
State v. Saitta, 306 Neb. 499, 945 N.W.2d 888 (2020).
10
Id.11
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
12
See State v. Saitta, supra note 9.
- 492 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482sufficient to give rise to reasonable suspicion that a person has
committed or is committing a crime. 13
[10] The third type of police-citizen encounters, arrests, is
characterized by highly intrusive or lengthy search or deten-
tion. 14 The Fourth Amendment requires that an arrest be justi-
fied by probable cause to believe that a person has committed
or is committing a crime. 15
[11,12] Plainly, not every police-citizen encounter rises to
the level of a seizure. A seizure in the Fourth Amendment con-
text occurs only if, in view of all the circumstances surrounding
the incident, a reasonable person would have believed that he
or she was not free to leave. 16 In addition to situations where
an officer directly tells a suspect that he or she is not free to go,
circumstances indicative of a seizure may include the threaten-
ing presence of several officers, the display of a weapon by an
officer, some physical touching of the citizen’s person, or the
use of language or tone of voice indicating the compliance with
the officer’s request might be compelled. 17 A seizure does not
occur simply because a law enforcement officer approaches an
individual and asks a few questions or requests permission to
search an area, provided the officer does not indicate that com-
pliance with his or her request is required. 18
We first address Lowman’s initial encounter with Murray.
Lowman claims the initial approach was unjustified and
unnecessary because he was in a place open to the public and
Murray saw no illegal activity. The State responds that no
level of suspicion was needed, because the initial contact was
a consensual encounter rather than a Terry stop. We agree with
the State.
13
Id.14
Id.15
Id.16
Id.17
Id.18
State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).
- 493 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482The interaction started with noncoercive questioning.
Murray did not activate his cruiser’s overhead lights or sirens
prior to approaching Lowman’s vehicle on foot. As Murray
approached, Lowman began to exit his vehicle. Murray did
not direct Lowman to do so. Murray did not display a weapon
or show coercive authority. His communication with Lowman
was casual, rather than authoritative. We conclude that this
interaction amounted to a first-tier police-citizen encoun-
ter, and thus, it was outside the protections of the Fourth
Amendment.
[13,14] The encounter developed into a tier-two investiga-
tory stop when Murray advised Lowman that he was being
detained. An investigatory stop of a person requires that the
stopping officer have specific and articulable facts sufficient
to give rise to reasonable suspicion that a person has com-
mitted or is committing a crime. 19 Whether a police officer
has a reasonable suspicion based on sufficient articulable
facts depends on the totality of the circumstances and must be
determined on a case-by-case basis. 20 In determining whether
a police officer acted reasonably, it is not the officer’s incho-
ate or unparticularized suspicion or hunch that will be given
due weight, but the specific reasonable inferences which the
officer is entitled to draw from the facts in light of the offi-
cer’s experience. 21
Murray had reasonable suspicion to believe a crime had
occurred based on the totality of the circumstances. In addi-
tion to observing Lowman’s loitering, Murray observed in
Lowman’s vehicle a car stereo with wires extending out on
the passenger seat and a metal pipe protruding from the space
between the driver’s seat and the center console. Based on
Murray’s training and experience, he believed the pipe, along
with the torch-style lighter held by Lowman, could be used
19
State v. Saitta, supra note 9.
20
Id.21
Id.- 494 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482for smoking controlled substances. Further, Lowman admit-
ted to being a marijuana user, was fidgety, spoke rapidly, and
provided some answers that did not make sense. He also admit-
ted to having a machete “tucked down” in his vehicle, which
Murray believed to constitute a concealed weapon. Murray had
a reasonable suspicion based on specific and articulable facts
that Lowman had committed a crime.
We next turn to the warrantless search of Lowman’s vehicle.
First, we recall the governing law. Then, we apply it to the
facts presented here.
[15-17] Warrantless searches and seizures are per se unrea-
sonable under the Fourth Amendment, subject to a few estab-
lished and well-delineated exceptions. 22 The warrantless search
exceptions Nebraska has recognized include: (1) searches
undertaken with consent, (2) searches under exigent circum-
stances, (3) inventory searches, (4) searches of evidence in
plain view, and (5) searches incident to a valid arrest. 23 This
court has recognized that among the established exceptions
to the warrant requirement is the automobile exception. 24 The
automobile exception applies when a vehicle is readily mobile
and there is probable cause to believe that contraband or evi-
dence of a crime will be found in the vehicle. 25
The automobile exception applies here. Lowman’s vehicle
was capable of being driven, and Murray observed what he
believed to be a pipe for ingesting narcotics. His belief, though
later shown to be incorrect, was bolstered by Lowman’s
admission to being a marijuana user and possession of a
torch-style lighter commonly used for smoking controlled
substances. Further, Lowman informed Murray that he had
a machete in the vehicle, but Murray did not readily see the
machete. Viewed objectively, these facts supplied probable
22
Id.23
Id.24
Id.25
State v. Lang, supra note 5.
- 495 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482cause to believe contraband or evidence of a crime would be
found inside the vehicle.
Because the district court’s findings of historical fact were
not clearly erroneous and we find no Fourth Amendment vio-
lation, we conclude the court properly overruled Lowman’s
motion to suppress.
Sufficiency of Evidence
Lowman next contends that there was insufficient evidence
to support the verdict. The argument in his brief mentions only
the conviction concerning the machete’s being a concealed
weapon. Because an alleged error must be specifically argued
in order to be considered, 26 we limit our analysis accordingly.
In connection with Lowman’s argument, he advocates for
application of the “accused’s rule” when reviewing circum-
stantial evidence. Recently, in State v. Stack, 27 we rejected an
invitation to return to the accused’s rule. At oral argument,
Lowman’s counsel forthrightly conceded that Stack—released
after counsel filed Lowman’s appellate brief—controlled. For
the same reasons explained in Stack, we yet again decline to
apply the accused’s rule.
[18] The sufficiency analysis is driven by the elements of
the offense and our standard of review. The offense of carry-
ing a concealed weapon is committed when a person “carries
a weapon or weapons concealed on or about his or her person,
such as a handgun, a knife, brass or iron knuckles, or any other
deadly weapon.” 28 Under our standard of review, we consider
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
that the machete was “concealed on or about [Lowman’s]
person,” as provided in § 28-1202. 29 A weapon is concealed
on or about the person if it is concealed in such proximity to
26
See State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).
27
See State v. Stack, supra note 3.
28
Neb. Rev. Stat. § 28-1202(1)(a) (Reissue 2016).
29
See State v. Senn, 295 Neb. 315, 888 N.W.2d 716 (2016).
- 496 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482the driver of an automobile as to be convenient of access and
within immediate physical reach. 30
Here, the State adduced sufficient evidence regarding the
machete to support the concealed weapon conviction. The
machete, located in the vehicle’s center console area, was eas-
ily accessible and within Lowman’s immediate physical reach.
In urging that the machete was not concealed, Lowman relies
heavily on an officer’s testimony that the machete’s handle was
visible from outside the passenger-side door. But Murray did
not see the machete when he looked in the vehicle. Viewing
the evidence in the light most favorable to the State, we con-
clude the evidence supported the conviction for carrying a
concealed weapon.
Ineffective Assistance of Counsel
[19] Finally, Lowman assigns that trial counsel, who was
different from appellate counsel, provided ineffective assist­
ance. Generally, to prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 31 the defendant
must show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense. 32
[20,21] When a defendant’s trial counsel is different from
his or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective perform­
ance which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred. 33
But 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. 34 The determining factor is
30
Id.31
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
32
State v. Lang, supra note 5.
33
Id.34
Id.- 497 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482whether the record is sufficient to adequately review the ques-
tion. 35 The record is sufficient if it establishes either that trial
counsel’s performance was not deficient, that the appellant
will not be able to establish prejudice, or that trial counsel’s
actions could not be justified as a part of any plausible trial
strategy. 36 We turn to Lowman’s two specific allegations of
deficient performance.
[22] First, Lowman claims counsel provided ineffective
assistance in several respects related to the motion to suppress.
According to Lowman’s assignment, counsel was ill prepared
and failed to brief the issues. But this allegation is broad and
conclusory. Assignments of error on direct appeal regarding
ineffective assistance of trial counsel must specifically allege
deficient performance. 37 Lowman failed to allege what case
law should have been provided or how it would have per-
suaded the court to grant the motion to suppress. We conclude
these allegations of ineffective assistance of counsel were not
made with sufficient particularity.
Lowman’s claim that counsel filed the motion to suppress at
the last minute is refuted by the record. A motion containing
identical allegations was filed nearly 4 weeks earlier, but coun-
sel was unable to pursue it due to Lowman’s failure to appear
at the hearing. Lowman additionally claims that the late filing
deprived him of the ability to assemble evidence and testimony
to refute the statements of the officers at trial. But he had the
opportunity to attack the credibility of the officers during the
jury trial, and he does not inform us of what evidence he would
have offered. This aspect of his claim lacks the specificity
required to allege deficient conduct.
Lowman’s second claim asserts that counsel should have
called as witnesses two individuals. One was a friend whom
Lowman had dropped off in the area at around 3 a.m. The
35
Id.36
Id.37
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
- 498 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. LOWMAN
Cite as 308 Neb. 482other was a clerk at a convenience store with whom Lowman
spoke after dropping off his friend. Lowman wished to have
these individuals testify that he was not in the area for an
unlawful purpose.
[23,24] We are mindful that the entire analysis of a claim
of ineffective assistance of counsel should be viewed with a
strong presumption that counsel’s actions were reasonable. 38
Further, trial counsel is afforded due deference to formu-
late trial strategy and tactics, and an appellate court will not
second-guess trial counsel’s reasonable strategic tactics when
reviewing claims of ineffective assistance of counsel. 39 Here,
whatever knowledge these individuals had about what Lowman
was doing 2 hours prior to the encounter with law enforcement
is of little relevance, particularly when considering that he was
found to be in possession of methamphetamine and concealed
weapons and charged accordingly. We conclude that counsel
did not perform deficiently in declining to call these individ­
uals as witnesses.
CONCLUSION
We conclude that the court properly overruled Lowman’s
motion to suppress and that evidence concerning the machete
supported the conviction for carrying a concealed weapon.
With regard to Lowman’s assignments of ineffective coun-
sel that were alleged with sufficient particularity, the record
either refuted the allegations or showed that trial coun-
sel’s performance was not deficient. We affirm the district
court’s judgment.
Affirmed.
38
State v. Oliveira-Coutinho, 304 Neb. 147, 933 N.W.2d 825 (2019).
39
State v. Lang, supra note 5.