State v. Roebuck , 31 Neb. Ct. App. 67 ( 2022 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
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STATE v. ROEBUCK
Cite as 31 Neb. App. 67State of Nebraska, appellee, v.
Richard L. Roebuck, appellant.
___ N.W.2d ___
Filed May 31, 2022. No. A-21-342.
1. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. Criminal Law: Courts: Appeal and Error. When deciding appeals
from criminal convictions in county court, an appellate court applies the
same standards of review that it applies to decide appeals from criminal
convictions in district court.
4. Convictions: Appeal and Error. A conviction in a bench trial of a
criminal case is sustained if the evidence, viewed and construed most
favorably to the State, is sufficient to support that conviction. The trial
court’s findings have the effect of a jury verdict and will not be set aside
unless clearly erroneous.
5. Rules of Evidence: Appeal and Error. When the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
6. Rules of Evidence: Hearsay: Appeal and Error. Apart from rul-
ings under the residual hearsay exception, an appellate court reviews
for clear error the factual findings underpinning a trial court’s hear-
say ruling and reviews de novo the court’s ultimate determination to
admit evidence over a hearsay objection or exclude evidence on hear-
say grounds.
7. Sentences: Judgments: Appeal and Error: Words and Phrases.
Where a sentence imposed within the statutory limits is alleged on
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Cite as 31 Neb. App. 67appeal to be excessive, the appellate court must determine whether a
sentencing court abused its discretion in considering and applying the
relevant factors as well as any applicable legal principles in determin-
ing the sentence to be imposed. Absent an abuse of discretion by the
trial court, an appellate court will not disturb a sentence imposed within
statutory limits. An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
8. 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. An appellate
court determines as a matter of law whether the record conclusively
shows that (1) a defense counsel’s performance was deficient or (2)
a defendant was or was not prejudiced by a defense counsel’s alleged
deficient performance.
9. Rules of Evidence: Hearsay. For a statement to be an excited utterance,
the following criteria must be met: (1) There must be a startling event;
(2) the statement must relate to the event; and (3) the declarant must
make the statement while under the stress of the event.
10. ____: ____. The justification for the excited utterance exception is that
circumstances may produce a condition of excitement which temporarily
stills the capacity for reflection and produces utterances free of con-
scious fabrication.
11. ____: ____. The true test in spontaneous exclamations is not when the
exclamation was made, but whether under the circumstances of the par-
ticular exclamation, the speaker may be considered as speaking under
the stress of nervous excitement and shock produced by the act in issue.
12. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
13. Constitutional Law: Testimony. The Confrontation Clause of the U.S.
Constitution only applies to testimonial statements.
14. Testimony: Words and Phrases. The term “testimonial” applies to
prior testimony at a preliminary hearing, before a grand jury, or at a
former trial, and to police interrogations.
15. Trial: Evidence: Appeal and Error. An objection must be specifically
stated, and on appeal, a defendant may not assert a different ground for
his or her objection to the admission of evidence than was offered to the
trier of fact.
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Cite as 31 Neb. App. 6716. Convictions: Sentences: Ordinances: Appeal and Error. When a
defendant appeals a conviction and sentence under a municipal ordi-
nance, claiming that the evidence is insufficient for a conviction and
that a sentence is excessive, an appellate court’s consideration of the
assignments of error requires an examination of the specific ordi-
nance involved.
17. Jury Trials: Ordinances. Neb. Rev. Stat. § 25-2705 (Reissue 2016)
precludes a defendant from obtaining a jury trial in a prosecution for the
violation of a municipal ordinance.
18. Effectiveness of Counsel: 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 ineffec-
tive performance which is known to the defendant or is apparent from
the record.
19. Effectiveness of Counsel: Records: Appeal and Error. On direct
appeal, the resolution of ineffective assistance of counsel claims turns
upon the sufficiency of the record. In those cases where the record on
direct appeal was sufficient to address a claim of ineffective assistance
of trial counsel, the record itself either affirmatively proved or rebutted
the merits of the claim. That is, the record established either that trial
counsel’s performance was not deficient, that the appellant could not
establish prejudice, or that trial counsel’s actions could not be justified
as a part of any plausible trial strategy.
20. Effectiveness of Counsel: Proof: Appeal and Error. 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.
To show prejudice, the defendant must demonstrate a reasonable prob-
ability that but for counsel’s deficient performance, the result of the
proceeding would have been different.
21. Effectiveness of Counsel: Appeal and Error. While an appellant is not
required on direct appeal to allege prejudice when claiming ineffective
assistance of trial counsel, an appellant must make specific allegations
of trial counsel’s deficient performance.
22. Effectiveness of Counsel: Trial: Presumptions: Appeal and Error.
When reviewing claims of alleged ineffective assistance of counsel, trial
counsel is afforded due deference to formulate trial strategy and tactics.
There is a strong presumption that counsel acted reasonably, and an
appellate court will not second-guess reasonable strategic decisions.
23. Effectiveness of Counsel: Records: Appeal and Error. Ineffective
assistance claims on direct appeal must be presented with enough
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Cite as 31 Neb. App. 67particularity 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.
24. Effectiveness of Counsel: Witnesses: Appeal and Error. Appellate
counsel must give on direct appeal the names or descriptions of any
uncalled witnesses forming the basis of a claim of ineffective assistance
of trial counsel. However, the appellate court does not need specific fac-
tual allegations as to what the person or persons would have said, which
will not be found in the appellate record.
25. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
ineffective assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.
26. Constitutional Law: Trial: Attorney and Client: Testimony: Waiver.
A defendant has a fundamental constitutional right to testify. The right
to testify is personal to the defendant and cannot be waived by defense
counsel’s acting alone.
27. Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
Waiver. Defense counsel’s advice to waive the right to testify can
present a valid claim of ineffective assistance in two instances: (1) if
the defendant shows that counsel interfered with his or her freedom to
decide to testify or (2) if counsel’s tactical advice to waive the right
was unreasonable.
Appeal from the District Court for Lancaster County, Kevin
R. McManaman, Judge, on appeal thereto from the County
Court for Lancaster County, Matthew L. Acton, Judge.
Judgment of District Court affirmed.
Robert Wm. Chapin, Jr., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Pirtle, Chief Judge, and Riedmann and Bishop, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Richard L. Roebuck appeals from an order of the
Lancaster County District Court affirming his conviction
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STATE v. ROEBUCK
Cite as 31 Neb. App. 67and sentence for assault and battery in violation of Lincoln
Mun. Code § 9.12.010 (1997). For the reasons that follow,
we affirm.
BACKGROUND
On December 2, 2019, the State filed a criminal complaint
against Roebuck in the county court for Lancaster County,
alleging one count of third degree domestic assault in viola-
tion of Neb. Rev. Stat. § 28-323(1) and (4) (Reissue 2016). On
December 18, the State filed an amended complaint alleging
one count of assault and battery in violation of Lincoln Mun.
Code § 9.12.010. Roebuck pled not guilty to the amended com-
plaint, and the matter was set for a bench trial.
The matter proceeded to a bench trial on February 27, 2020,
wherein the following evidence was adduced: At approximately
6:30 a.m. on November 28, 2019, F.P. was roused awake by his
mother to find a woman screaming for help outside of their
house on North 28th Street in Lincoln, Nebraska. According
to F.P., the woman was crying and shaking, and he observed
that she kept “looking back over her shoulder.” F.P. heard the
woman say “‘[m]y boyfriend hit me.’” Roebuck objected to
this testimony on hearsay grounds, and the court overruled that
objection. F.P. let the woman inside the house and instructed
his sister to call the police. The woman continued “shaking and
crying” and indicated she was experiencing pain in her ribs.
F.P. recalled that the woman said something about a preexisting
injury to her ribs which was aggravated because “he had hit her
in the ribs.”
F.P.’s sister called the 911 emergency dispatch service, and
a recording of the call was admitted into evidence. Within the
first 30 seconds of the recording, a woman’s voice is heard
in the background saying either “he was hitting me, punch-
ing me” or “he was kicking me, punching me.” F.P. testified
that the voice heard in the background is that of the woman
he discovered outside the house. Roebuck objected to the
admission of this evidence on both hearsay and confrontation
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Cite as 31 Neb. App. 67grounds. With respect to hearsay, the court stated that “founda-
tion for excited utterance has been established.” With respect
to confrontation, the court agreed that much of the recorded
call consisted of testimonial responses to the 911 operator’s
questions. However, the court admitted the statement above as
nontestimonial because it was not prompted by any question
from the 911 operator.
Within approximately 10 minutes of the 911 call, Lincoln
police officers arrived on the scene. Officer Zack Sanchez
testified that he arrived at the residence on North 28th Street
and made contact with the victim. Sanchez observed her sitting
on the couch, and he testified that “[s]he looked to be actively
upset, and her demeanor showed signs that she may be in some
sort of fear.” After entering the house, but prior to making
contact with the victim, Sanchez testified that he overheard her
“telling the individuals who lived there what was going on.”
Specifically, Sanchez testified that he heard the victim say she
and her boyfriend “had gotten into an argument, which led to
him being aggressive and grabbed her, which led her to come
over across the street.” Roebuck objected to this testimony
on hearsay and foundation grounds, and the court overruled
that objection.
Sanchez testified that he eventually introduced himself and
began speaking with the victim, at which point he noticed a
small cut on her head. Sanchez observed that she was speak-
ing in a “trembling manner, like she was fearful.” Sanchez also
testified that he observed minor swelling on the victim’s head
and a bruise “which grew increasingly darker as the conversa-
tion went on.” Based on his experience with simple bruising
and swelling, Sanchez testified that her injuries appeared to
be recent.
After trial, on February 28, 2020, the court found Roebuck
guilty on one count of assault and battery in violation
of Lincoln Mun. Code § 9.12.010 and ordered a presen-
tence investigation. The court reconvened for sentencing on
May 1, but the matter was continued to allow Roebuck an
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STATE v. ROEBUCK
Cite as 31 Neb. App. 67opportunity to enroll in domestic violence classes. The court
reconvened again on June 19, but the matter was once again
continued in light of a broadcast for Roebuck’s arrest in con-
nection with a “felony domestic-related assault.” The court
reconvened again on June 26, at which point Roebuck was
in custody on a felony charge. The court ultimately sen-
tenced Roebuck to the maximum term of 6 months in the
county jail.
Roebuck appealed to the district court for Lancaster County,
assigning that the county court erred in (1) admitting state-
ments of the victim through Sanchez over hearsay objections,
(2) admitting statements of the victim through Sanchez over
confrontation objections, (3) admitting statements of the vic-
tim through F.P. over hearsay objections, (4) finding Roebuck
guilty without sufficient evidence, and (5) imposing an exces-
sive sentence. Roebuck also assigned that his trial counsel was
ineffective in a number of respects. Upon reviewing the record
and hearing argument, the district court affirmed Roebuck’s
conviction and sentence. This appeal followed.
ASSIGNMENTS OF ERROR
Roebuck assigns, restated, that the district court erred in (1)
affirming the county court’s admission of statements of the vic-
tim through Sanchez over hearsay objections, (2) affirming the
county court’s admission of statements of the victim through
Sanchez over confrontation objections, (3) affirming the county
court’s admission of statements of the victim through F.P. over
hearsay objections, (4) affirming the county court’s finding
of guilt without sufficient evidence, (5) affirming the county
court’s imposition of an excessive sentence, and (6) failing to
find that Roebuck was entitled to a jury trial.
Additionally, Roebuck assigns that his trial counsel was
ineffective for (1) failing to call all known witnesses, (2) fail-
ing to object on grounds of confrontation to statements made
by the victim admitted through the testimony of Sanchez,
(3) failing to fully and completely cross-examine Sanchez,
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Cite as 31 Neb. App. 67(4) failing to fully and completely cross-examine Officer
Thomas Domanski, (5) failing to fully and completely cross-
examine F.P., (6) failing to properly advise Roebuck on the
decision whether to testify at trial, and (7) failing to object to
the amended complaint.
STANDARD OF REVIEW
[1-3] Both the district court and a higher appellate court gen-
erally review appeals from the county court for error appearing
on the record. State v. Collins, 307 Neb. 581, 950 N.W.2d 89(2020). When reviewing a judgment for errors appearing on
the record, an appellate court’s inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Id. When
deciding appeals from criminal convictions in county court,
we apply the same standards of review that we apply to decide
appeals from criminal convictions in district court. Id.[4] A conviction in a bench trial of a criminal case is sus-
tained if the evidence, viewed and construed most favorably
to the State, is sufficient to support that conviction. State v.
Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997). The trial
court’s findings have the effect of a jury verdict and will not be
set aside unless clearly erroneous. Id.[5,6] When the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. State v. Childs, 309 Neb. 427, 960 N.W.2d
585 (2021). Apart from rulings under the residual hearsay
exception, an appellate court reviews for clear error the fac-
tual findings underpinning a trial court’s hearsay ruling and
reviews de novo the court’s ultimate determination to admit
evidence over a hearsay objection or exclude evidence on hear-
say grounds. Id.[7] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion
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Cite as 31 Neb. App. 67in considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
imposed. State v. Collins, supra. Absent an abuse of discretion
by the trial court, an appellate court will not disturb a sentence
imposed within statutory limits. Id. An abuse of discretion
occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. Id.[8] 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. Id. We determine as a matter of law whether
the record conclusively shows that (1) a defense counsel’s
performance was deficient or (2) a defendant was or was not
prejudiced by a defense counsel’s alleged deficient perform­
ance. Id.ANALYSIS
Hearsay.
Roebuck’s first and third assignments of error allege that
the district court erred in affirming the county court’s admis-
sion of statements allegedly made by the victim over hearsay
objections. Because the victim failed to appear for trial, despite
being ordered to do so, the State sought to introduce certain
statements allegedly made by her through the testimony of
other witnesses.
Chronologically, the first statement made by the victim
and admitted at trial occurred outside the North 28th Street
residence when F.P. made contact with the victim, who was
then screaming for help. F.P. testified the victim stated that
“‘[m]y boyfriend hit me.’” The second statement made by
the victim and admitted at trial occurred shortly after F.P. let
her into the house. F.P.’s sister called 911, and within the first
30 seconds of the recorded call, a woman’s voice is heard in
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Cite as 31 Neb. App. 67the background saying either “he was hitting me, punching
me” or “he was kicking me, punching me.” The third statement
made by the victim and admitted at trial occurred approxi-
mately 10 minutes after the 911 call when Sanchez arrived at
the residence. Sanchez testified that he overheard her telling
the other individuals in the house that she and her boyfriend
“had gotten into an argument, which led to him being aggres-
sive and grabbed her, which led her to come over across the
street.” Roebuck objected to each of these statements on hear-
say grounds.
Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. Neb. Rev. Stat. § 27-801(Cum. Supp. 2020). Hearsay is not admissible except as pro-
vided by the Nebraska Evidence Rules, other rules adopted by
the statutes of the State of Nebraska, or by the discovery rules
of the Nebraska Supreme Court. See Neb. Rev. Stat. § 27-802(Reissue 2016). There is an exception to the hearsay rule when
the statement offered was related to a startling event or condi-
tion made while the declarant was under the stress of excite-
ment caused by the event or condition. See Neb. Rev. Stat.
§ 27-803(1) (Reissue 2016).
[9-11] The statements in question clearly contain hearsay.
The county court admitted each of the statements under the
excited utterance exception, and the district court affirmed.
For a statement to be an excited utterance, the following cri-
teria must be met: (1) There must be a startling event; (2) the
statement must relate to the event; and (3) the declarant must
make the statement while under the stress of the event. State v.
Hale, 290 Neb. 70, 858 N.W.2d 543 (2015). The justification
for the excited utterance exception is that circumstances may
produce a condition of excitement which temporarily stills
the capacity for reflection and produces utterances free of
conscious fabrication. Id. The true test in spontaneous excla-
mations is not when the exclamation was made, but whether
under the circumstances of the particular exclamation, the
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Cite as 31 Neb. App. 67speaker may be considered as speaking under the stress of
nerv­ous excitement and shock produced by the act in issue.
State v. Hembertt, 269 Neb. 840, 696 N.W.2d 473 (2005).
Roebuck does not contest that a startling event occurred
or that the statements at issue related to that startling event.
Rather, Roebuck asserts that “there was insufficient evidence
presented to identify whether the time had dissipated between
the event and the offered statement.” Brief for appellant at 14.
Roebuck acknowledges the evidence of the victim’s apparent
distress. However, he argues “the biggest piece missing under
the excited utterance scrutiny is the lack of a timeframe.” Id. at
23. Roebuck asserts “there is no evidence presented as a time
frame to identify whether the complaining witness had time for
conscious thought.” Id. at 21.
With regard to the first statement made to F.P. from outside
the residence, Roebuck argues that “[v]ague statements iden-
tifying an event, i.e. ‘My boyfriend hit me,’ without more fail
to provide enough information to determine if the statement is
an excited utterance.” Id. at 23. Specifically, Roebuck contends
that “[t]he boyfriend could have allegedly hit [the victim] a
week ago, a month ago, or perhaps not at all and an entirely
different event occurred.” Id. Roebuck also questions the spon-
taneity of the statement, asserting that F.P. prompted the state-
ment through his questions as he was trying to ascertain why
the victim was screaming outside his door.
With regard to the second statement overheard on the 911
call, Roebuck asserts:
[T]here could have been plenty of time for the stress from
a startling event to dissipate . . . . [The victim] had time
to leave the home, go across the street, knock on the door,
and wait to be allowed in, and be seated on the couch all
prior to making the statement.
Brief for appellant at 21. With regard to the third state-
ment overheard by Sanchez upon arriving at the residence,
Roebuck acknowledges Sanchez’ testimony establishing a
10-minute timeframe between the 911 call and his arrival.
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Cite as 31 Neb. App. 67However, Roebuck argues that “the call for 911 is still not
indicative of the time of the alleged incident,” noting that
“[p]eople can call the police for assistance with reports of a
belated incident.” Id. at 14.
In affirming the county court’s admission of the above state-
ments, the district court reasoned as follows:
The victim fled across the street at six-thirty in the morn-
ing and was found screaming at [F.P.’s] front door. While
no one described the “exact timeline” of the assault, she
was observed to be crying and screaming and appeared
distressed to [F.P.], and was actively upset in a “trembling
manner, like she was fearful,” even after Officer Sanchez
arrived. Her statements pertained to her argument with
[Roebuck], that he had grabbed and hit her, and she was
clearly still under the influence of the event before and
even after Sanchez arrived ten minutes later. The state-
ments fall squarely within the excited utterance exception
to the hearsay rule.
We agree. Roebuck effectively concedes that there was some
startling event which caused the victim to flee across the street
screaming for help. Rather than disputing the occurrence of
a startling event in the first place, Roebuck argues that there
could have been sufficient time between such event and the
statements at issue for the exciting influence to dissipate.
However, the evidence is to the contrary.
When the victime made the first statement to F.P. outside
his door, she was frantic. F.P. testified she was shaking, cry-
ing, and looking back over her shoulder when she stated that
“‘[m]y boyfriend hit me.’” This prompted F.P. to let the vic-
tim inside the house, at which point her trembling voice is
heard in the background of the 911 call saying either “he was
hitting me, punching me” or “he was kicking me, punching
me.” Sanchez testified that he arrived on the scene approxi-
mately 10 minutes later, at which point the vitim still appeared
to Sanchez to be “actively upset.” Sanchez overheard the
victim say to the other individuals in the house that she and
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Cite as 31 Neb. App. 67her boyfriend “had gotten into an argument, which led to him
being aggressive and grabbed her, which led her to come over
across the street.” Thereafter, Sanchez spoke with the victim
and noted that she was speaking in a “trembling manner, like
she was fearful.”
The record reflects that a startling event occurred involving
Roebuck and the victim, which event caused the victim to flee
across the street screaming for help. In the minutes follow-
ing this event, the victim made the three statements above, all
of which pertain to the startling event that occurred. Despite
Roebuck’s assertions to the contrary, the victim appeared
at all pertinent times to be under the exciting influence of
the startling event that occurred between her and Roebuck.
Accordingly, we affirm the order of the district court affirm-
ing the county court’s admission of these statements under the
excited utterance exception to the hearsay rule.
Confrontation.
[12] Roebuck’s second assignment of error alleges the dis-
trict court erred in affirming the county court’s admission of
the third statement above through Sanchez over a confronta-
tion objection. We note that Roebuck also makes a confron-
tation argument with regard to the statement heard in the
background of the 911 call; however, that argument does not
correspond to any assignment of error, and thus, we do not
address it. See State v. Figures, 308 Neb. 801, 957 N.W.2d
161 (2021) (alleged error must be both specifically assigned
and specifically argued in brief of party asserting error to be
considered by appellate court).
[13,14] The Confrontation Clause provides, in relevant part,
that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him
. . . .” U.S. Const. amend. VI. This admonition only applies
to testimonial statements, as “[o]nly statements of this sort
cause the declarant to be a ‘witness’ within the meaning of
the Confrontation Clause.” Davis v. Washington, 547 U.S.
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Cite as 31 Neb. App. 67813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (quoting
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004)). “‘“[W]hatever else the term [‘testimo-
nial’] covers, it applies . . . to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial, and to police
interrogations.”’” State v. Vaught, 268 Neb. 316, 325, 682
N.W.2d 284, 291 (2004) (quoting Horton v. Allen, 370 F.3d 75(1st Cir. 2004)).
[15] While Roebuck does specifically assign and argue the
alleged error with regard to the admission of the statement
overheard by Sanchez, the State counters that Roebuck failed
to preserve the matter for appeal because he failed to specifi-
cally object on confrontation grounds when Sanchez testified
to the statement. We agree. An objection must be specifically
stated, and on appeal, a defendant may not assert a different
ground for his or her objection to the admission of evidence
than was offered to the trier of fact. State v. Childs, 309 Neb.
427, 960 N.W.2d 585 (2021).
In this case, Roebuck failed to specifically raise a confronta-
tion objection when Sanchez testified to the statement which
he overheard upon arriving at the residence. Roebuck had
previously objected to the expected testimony on confronta-
tion grounds, and the court requested the State to “clarify the
foundation for Crawford with the officer.” The State thus laid
additional foundation establishing that when Sanchez walked
into the house, “it was slightly chaotic,” and the statement at
issue was overheard by Sanchez prior to his making contact
with the victim or prompting her with questions. The State
again asked Sanchez to testify to the statement he overheard,
which prompted an objection as to hearsay and foundation,
which the court overruled. Roebuck failed to reiterate his con-
frontation objection.
Asserting that the admitted statement was testimonial,
Roebuck emphasizes that the victim “made the statement with
the neighbors while the police officer was present.” Brief for
appellant at 18. Thus, the apparent concern prompting the
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Cite as 31 Neb. App. 67initial objection on confrontation grounds was that the state-
ment was made in response to police interrogation. Indeed,
the court noted in response to Roebuck’s initial confrontation
objection that it was unclear whether the statement was in
response to a question. The State then laid additional founda-
tion to demonstrate that the statement was not made in response
to a police interrogation. If Roebuck still believed that the State
had failed to lay sufficient foundation to prove the statement
was not testimonial, then he should have specifically reiterated
his confrontation objection at that point. Because he did not,
we conclude Roebuck failed to preserve that issue for appeal
and decline to address his second assignment of error.
Sufficiency of Evidence.
[16] Roebuck’s fourth assignment of error alleges that the
district court erred in affirming the county court’s finding of
guilt without sufficient evidence. When a defendant appeals a
conviction and sentence under a municipal ordinance, claim-
ing that the evidence is insufficient for a conviction and that a
sentence is excessive, an appellate court’s consideration of the
assignments of error requires an examination of the specific
ordinance involved. State v. King, 239 Neb. 853, 479 N.W.2d
125 (1992). Roebuck was charged with violating Lincoln Mun.
Code § 9.12.010, which provides as follows:
a. It shall be unlawful for any person intentionally or
knowingly to:
1. Threaten another in a menacing manner; or
2. Attempt to strike another person; or
3. Place another person in fear or apprehension of
imminent bodily harm.
b. It shall be unlawful for any person intentionally,
knowingly, or recklessly to:
1. Cause bodily injury to another person; or
2. Strike another person.
The present case is analogous to State v. Thompson, 278
Neb. 320, 770 N.W.2d 598 (2009), wherein the defendant
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Mun. Code § 9.12.010. In Thompson, the defendant challenged
the sufficiency of the evidence based on the State’s failure
to adduce testimony from the alleged victim. Rejecting the
defend­ant’s claim, the Supreme Court observed as follows:
[The defendant] does not provide any case law to sup-
port his claim that the evidence was insufficient because
the alleged victim did not testify. There is no statute
requiring a victim to testify in a criminal case. This court
must review only whether the evidence was sufficient. In
so doing, 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 evi-
dence; such matters are for the finder of fact. . . . The
county court heard and observed the witnesses and was
able to assess their credibility, and it found sufficient evi-
dence to convict [the defendant] of violating the munici-
pal code.
State v. Thompson, 278 Neb. at 329, 770 N.W.2d at 607 (cita-
tion omitted). Roebuck likewise argues that the best indication
of the insufficiency of the evidence in this case “is the com-
plete lack of testimony directly from the complaining witness
herself.” Brief for appellant at 26. However, like in Thompson,
Roebuck fails to provide any case law or statute to support
this argument.
In affirming the county court’s conviction of Roebuck, the
district court reasoned that “[t]he evidence, viewed in the
light most favorable to the prosecution, established facts suf-
ficient for the trier of fact to find [Roebuck] guilty beyond
a reasonable doubt.” We agree. The evidence is that there
was an argument between the victim and Roebuck. Roebuck
became aggressive, which prompted the victim to flee across
the street. As previously discussed, the county court properly
admitted statements of the victim which tend to demonstrate
that Roebuck hit and punched her prior to her fleeing. F.P.
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Cite as 31 Neb. App. 67testified that the victim appeared to have an injury to her ribs.
Moreover, Sanchez observed a cut on her head, as well as
swelling and a bruise which appeared to be recent. Altogether,
the evidence is sufficient to establish guilt beyond a reason-
able doubt, and Roebuck’s fourth assignment of error is with-
out merit.
Excessive Sentence.
Roebuck’s fifth assignment of error alleges that the district
court erred in affirming the county court’s imposition of an
excessive sentence. Lincoln Mun. Code § 1.24.010 (2006) pro-
vides as follows:
Any person . . . who shall violate any of the provisions
of this code for which a penalty is not otherwise specifi-
cally provided shall be deemed guilty of a misdemeanor,
and upon conviction thereof shall be punished by impris-
onment in the county jail for a period not to exceed six
months, or by a fine of not to exceed $500.00, recover-
able with costs, or both.
The county court sentenced Roebuck to the maximum 6 months
in county jail and ordered that he pay the costs of the pros-
ecution. The court cited Roebuck’s “lengthy criminal history,”
revocation from probation in 2015, lack of remorse, and high
risk to reoffend. Moreover, the court noted that Roebuck was in
custody on a “felony domestic charge,” adding that “[w]hile he
is presumed innocent of that charge . . . [i]t does, however, go
into my consideration in determining whether or not to place
him on probation.”
In affirming the sentence imposed by the county court,
the district court observed that “[t]he record reflects the
[county] court considered the relevant factors when impos-
ing the sentence which was within the statutory limits” and
that “[t]he sentencing court’s reasons reflected [Roebuck’s]
significant criminal history, including a prior conviction for
domestic assault.” The district court ultimately concluded
that “[c]onsidering the relevant factors including [Roebuck’s]
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Cite as 31 Neb. App. 67violent history and the nature of the crime, the [county] court’s
sentence . . . was not an abuse of discretion.” We agree.
On appeal, Roebuck acknowledges the relevant factors con-
sidered by the county court. However, Roebuck argues the
court failed to account for certain mitigating factors, in that he
“had started domestic violence classes, has positive relation-
ships with his children, his own experience as the victim of
physical abuse/neglect, and [his] prior military experience.”
Brief for appellant at 28. However, each of these factors were
included in the presentence investigation report, which the
court reviewed prior to sentencing. Based on our review of the
record, the sentence by the county court was not an abuse of
discretion. Accordingly, the district court did not err in affirm-
ing the county court’s sentence, and Roebuck’s fifth assign-
ment of error is without merit.
Right to Jury Trial.
Roebuck’s sixth assignment of error alleges that the district
court erred by not finding that Roebuck was entitled to a jury
trial. Roebuck emphasizes that he was originally charged with
third degree domestic assault in violation of § 28-323(1) and
(4) and that the matter was set for a jury trial. Thereafter,
the State amended the charge to a violation of a Lincoln
municipal ordinance, and the matter was set for a bench trial.
Roebuck argues it was plain error for the county court to set
the matter for a bench trial without first obtaining a waiver of
jury trial.
[17] On appeal to the district court, Roebuck likewise
argued that the amended complaint “‘stripped’ him of a ‘right’
to a jury trial.” However, the district court reasoned that
“[o]f course, [Roebuck] had no right to a jury trial with the
charge he was tried under, and it could have been brought
as that in the first place, so no right was ‘stripped’ of him.”
Indeed, Roebuck was ultimately charged with violating a
Lincoln municipal ordinance. Under Neb. Rev. Stat. § 25-2705(Reissue 2016), “Either party to any case in county court,
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. . . may demand a trial by jury.” (Emphasis supplied.) Thus,
Roebuck was not entitled to a jury trial. See State v. Cozzens,
241 Neb. 565, 490 N.W.2d 184 (1992) (holding § 25-2705
precludes defendant from obtaining jury trial in prosecution
for violation of municipal ordinance). His sixth assignment of
error is without merit.
Ineffective Assistance of Counsel.
[18,19] Finally, Roebuck assigns, through new counsel,
seven ways in which his trial counsel was ineffective. 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. State v. Filholm,
287 Neb. 763, 848 N.W.2d 571 (2014). On direct appeal, the
resolution of ineffective assistance of counsel claims turns
upon the sufficiency of the record. Id. In those cases where
the record on direct appeal was sufficient to address a claim
of ineffective assistance of trial counsel, the record itself
either affirmatively proved or rebutted the merits of the claim.
Id. That is, the record established either that trial counsel’s
perform­ance was not deficient, that the appellant could not
establish prejudice, or that trial counsel’s actions could not be
justified as a part of any plausible trial strategy. Id.[20-22] 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 defend­
ant’s defense. State v. Filholm, supra. To show prejudice, the
defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceed-
ing would have been different. Id. While an appellant is not
required on direct appeal to allege prejudice when claim-
ing ineffective assistance of trial counsel, an appellant must
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Cite as 31 Neb. App. 67make specific allegations of trial counsel’s deficient perform­
ance. See id. When reviewing claims of alleged ineffective
assistance of counsel, trial counsel is afforded due deference to
formulate trial strategy and tactics. State v. Huston, 285 Neb.
11, 824 N.W.2d 724 (2013). There is a strong presumption
that counsel acted reasonably, and an appellate court will not
second-guess reasonable strategic decisions. Id.Roebuck first alleges that trial counsel was ineffective for
failing to call all known witnesses. Specifically, Roebuck
argues trial counsel should have called the mother and sister
of F.P., who were also present at the residence on North 28th
Street on the morning in question. Roebuck asserts that “[t]hese
witnesses could provide additional or different evidence” and
identify any inconsistencies in the testimony of the witnesses
that did testify. Brief for appellant at 32. Additionally, Roebuck
asserts that trial counsel “failed to call any other neighbors,”
whose testimony “could have also identified any inconsisten-
cies” in the other testimony. Id. at 33.
In rejecting this claim, the district court observed that “no
factual basis is offered for the assertion that such testimony
would be forthcoming from those people,” adding that “[i]t is
well-established that failure to call all potential witnesses is not
evidence of ineffective practice by a lawyer, nor is there any
basis to believe not doing so was prejudicial.” In its brief to
this court, the State argues that “Roebuck has failed to allege
what the testimony of these witnesses would have been, and
this lack of specificity deprives this Court of the ability to
determine if the record is sufficient to address the matter on
direct appeal. Brief for appellee at 25. Alternatively, the State
argues that the claim “has not been stated with sufficient speci-
ficity to preserve it.” Id.
[23,24] In State v. Abdullah, 289 Neb. 123, 133, 853 N.W.2d
858, 866 (2014), the Supreme Court clarified that ineffective
assistance claims on direct appeal must be presented “with
enough particularity for (1) an appellate court to make a
determination of whether the claim can be decided upon the
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Cite as 31 Neb. App. 67trial 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.” In Abdullah,
the court found that the alleged failure to call “‘at least two’
witnesses” was not sufficiently specific in light of the court’s
concern that a potential postconviction court would be unable
“to identify if a particular failure to call a witness claim is
the same one that was raised on direct appeal.” 289 Neb. at
133, 134, 853 N.W.2d at 867. The court has since held that
“[a]ppellate counsel must give on direct appeal the names or
descriptions of any uncalled witnesses forming the basis of a
claim of ineffective assistance of trial counsel.” State v. Lee,
304 Neb. 252, 282, 934 N.W.2d 145, 166 (2019). However,
the appellate court does not need specific factual allegations
as to what the person or persons would have said, which will
not be found in the appellate record. State v. Blake, 310 Neb.
769, 969 N.W.2d 399 (2022). But see, State v. Hill, 298 Neb.
675, 905 N.W.2d 668 (2018); State v. Ash, 293 Neb. 583, 878
N.W.2d 569 (2016).
In both Hill and Ash, the appellant raised on direct appeal
a claim of ineffective assistance of counsel for the failure to
adduce evidence from certain witnesses. In both cases, the
Supreme Court emphasized that the appellant had failed to
allege what the testimony of the uncalled witnesses would
have been. See, State v. Hill, supra (in order to avoid dis-
missal without evidentiary hearing, defendant is required to
specifically allege what testimony of these witnesses would
have been); State v. Ash, supra (defendant does not explain
what information uncalled witness possessed or what part of
defendant’s testimony would have been corroborated). In both
cases, the court held that the claim had not been alleged with
sufficient particularity to preserve it for later postconviction
relief. Moreover, both cases cited Abdullah for the proposi-
tion that specific allegations as to the substance of the omitted
testimony are required to achieve the requisite particularity on
direct appeal.
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Cite as 31 Neb. App. 67However, in Abdullah, the court stated, “Our case law is
clear that were this a motion for postconviction relief, [the
defendant] would be required to specifically allege what the
testimony of these witnesses would have been if they had
been called in order to avoid dismissal without an evidentiary
hearing.” 289 Neb. at 133, 853 N.W.2d at 867 (emphasis sup-
plied). Immediately thereafter, the court added that “[i]n a
direct appeal, we do not need specific factual allegations as to
who should have been called or what that person or persons
would have said to be able to conclude that any evidence of
such alleged ineffective assistance will not be found in the
trial record.” Id. Nevertheless, the court held that the lack of
any specificity as to the uncalled witnesses was concerning for
purposes of preserving a postconviction claim. Thus, Abdullah
drew a sharp distinction between the level of particularity
required to preserve a claim on direct appeal and the level of
particularity required to justify an evidentiary hearing on a
motion for postconviction relief.
[25] In the vast majority of cases, the purported testimony
of an uncalled witness will not appear in the appellate record.
Rather, whether the failure to call a witness amounted to
ineffective assistance of counsel will most likely require an
evidentiary hearing, “[a]nd an ineffective assistance of coun-
sel claim will not be addressed on direct appeal if it requires
an evidentiary hearing.” State v. Filholm, 287 Neb. 763, 771,
848 N.W.2d 571, 579 (2014). As discussed in Abdullah, spe-
cific allegations as to the purported testimony of an uncalled
witness would be required for a postconviction court to deter-
mine whether an evidentiary hearing is justified. However,
on direct appeal, the fundamental question is whether a
claim is raised with sufficient particularity for a postconvic-
tion court to “identify whether a particular claim of failing
to investigate a witness is the same one that was raised on
direct appeal.” State v. Blake, 310 Neb. 769, 799, 969 N.W.2d
399, 421 (2022). Accordingly, Hill and Ash notwithstanding,
“When the claim of ineffective assistance on direct appeal
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Cite as 31 Neb. App. 67involves uncalled witnesses . . . [i]t is sufficient that appellate
counsel give on direct appeal the names or descriptions of
any uncalled witnesses forming the basis of a claim of inef-
fective assistance of trial counsel.” State v. Blake, 310 Neb. at
798-99, 969 N.W.2d at 421. See, also, State v. Lee, 304 Neb.
252, 934 N.W.2d 145 (2019).
In this case, Roebuck sufficiently identified the mother and
sister of F.P. as potential witnesses that trial counsel failed to
call at trial. Thus, we find that portion of Roebuck’s claim
was raised with sufficient particularity. However, we find
that the vague assertion as to the failure to call “any other
neighbors” is too broad and indefinite to permit a potential
postconviction court to identify whether a later claim to any
particular “neighbor” was the same claim raised on direct
appeal. See brief for appellant at 33. Accordingly, we reject
Roebuck’s claim of deficient performance as to the failure to
call unnamed neighbors.
With regard to trial counsel’s failure to call as witnesses
F.P.’s mother and sister, we agree with the State that the record
is not sufficient to address this claim on direct appeal. The
decision not to call additional witnesses was a matter of trial
strategy, which, if reasonable, will not be second-guessed on
appeal. However, there is nothing in the record to establish
whether the failure to call F.P.’s mother and sister was a con-
scious choice of trial strategy. See State v. Huston, 285 Neb.
11, 824 N.W.2d 724 (2013) (finding record insufficient where
there was no evidence that would allow court to determine
whether failure to object to evidence was conscious choice of
trial strategy). Moreover, even if such was a conscious choice
of trial strategy, there is nothing in the record to support
Roebuck’s assertion that F.P.’s mother and sister could have
supplied additional or different evidence, let alone what that
evidence would have been. Accordingly, we conclude the trial
record is insufficient to address Roebuck’s first claim of inef-
fective assistance on direct appeal.
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Cite as 31 Neb. App. 67Roebuck next assigns that trial counsel was ineffective for
failing to object on grounds of confrontation to statements
made by the victim and admitted through the testimony of
Sanchez. As discussed above, Roebuck initially objected on
confrontation grounds to the anticipated testimony of Sanchez
regarding the statement he overheard upon arrival at the North
28th Street residence; however, Roebuck failed to reiterate his
confrontation objection after the State laid additional founda-
tion for the testimony. We conclude that this alleged deficiency
of trial counsel is without merit insofar as Roebuck cannot
demonstrate prejudice because the statement overheard by
Sanchez prior to making contact with the victim or prompting
her with questions was not testimonial and thus would not have
been excluded even if Roebuck had properly raised a confron-
tation objection.
Roebuck next assigns that trial counsel was ineffective
for failing to fully and completely cross-examine Sanchez,
Domanski, and F.P. We note that Roebuck also presents an
argument that trial counsel was ineffective for failing to
object on hearsay and confrontation grounds to certain state-
ments to which F.P. testified. However, such argument does
not correspond to any assignment of error, and thus, we do
not address it. See State v. Figures, 308 Neb. 801, 957 N.W.2d
161 (2021).
Roebuck argues that trial counsel failed to adequately
cross-examine Sanchez on his qualifications and the basis
for his opinion that the victim’s injuries appeared recent.
Roebuck argues trial counsel similarly failed to adequately
cross-­examine Domanski on his knowledge of bruising, which
testimony “could have refuted . . . Sanchez’s testimony.” Brief
for appellant at 36. Roebuck argues trial counsel failed to
adequately cross-examine F.P. on the basis for his testimony
regarding the injury to the victim’s ribs.
In rejecting these claims, the district court reasoned that
they “are simply disagreements with the trial tactics employed
by his lawyer, and nothing appears deficient resulting in
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Cite as 31 Neb. App. 67any prejudice within the meaning of Strickland v. Washington.”
We agree. We are guided by the strong presumption that
trial counsel acted reasonably, and an appellate court will
not second-guess reasonable strategic decisions. See State v.
Huston, supra. Moreover, even if trial counsel was deficient,
Roebuck cannot show prejudice, because the evidence of the
victim’s statements and the photographs of her injuries did
not depend on trial counsel’s cross-examination of these wit-
nesses. Accordingly, we conclude that Roebuck’s third, fourth,
and fifth claims of ineffective assistance of counsel are with-
out merit.
[26,27] Roebuck next assigns that trial counsel was ineffec-
tive for failing to properly advise him on the decision whether
to testify at trial. Roebuck did not testify at trial. A defend­
ant has a fundamental constitutional right to testify. State v.
Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017). The right to
testify is personal to the defendant and cannot be waived by
defense counsel’s acting alone. Id. Defense counsel’s advice
to waive the right to testify can present a valid claim of inef-
fective assistance in two instances: (1) if the defendant shows
that counsel interfered with his or her freedom to decide to
testify or (2) if counsel’s tactical advice to waive the right was
unreasonable. Id.We observe that the county court explicitly advised Roebuck
as to his right to testify and asked Roebuck, “Have you had
enough time to speak with [trial counsel] about both your right
to testify and your right not to testify?” Roebuck responded,
“Yes, sir.” Thereafter, the court confirmed with Roebuck that
he was choosing not to testify freely, voluntarily, knowingly,
and intelligently. However, while the record affirmatively
establishes that Roebuck chose not to testify, there is no evi-
dence as to the substance of trial counsel’s advice on that point.
Accordingly, we conclude the record is insufficient to address
this claim on direct appeal. See, State v. Hill, 298 Neb. 675,
905 N.W.2d 668 (2018); State v. Mora, 298 Neb. 185, 903
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Cite as 31 Neb. App. 67N.W.2d 244 (2017); State v. Alvarado, 27 Neb. App. 334, 931
N.W.2d 463 (2019).
Finally, Roebuck assigns that trial counsel was ineffective
for failing to object to the amended complaint. Roebuck argues
that counsel’s failure to object resulted in the loss of his right
to a jury trial. However, as discussed above, Roebuck had no
right to a jury trial under the amended charges, and the State
could have originally charged Roebuck under the amended
complaint. In rejecting this claim, the district court pointed out
that the amended complaint actually reduced the possible pen-
alty which Roebuck faced, adding that “[t]here is no merit to
the argument that an objection effectively demanding a charge
with double the penalty should or even could be granted by a
Court, and were any such objection sustained, the [S]tate could
simply have dismissed and refiled.” (Emphasis in original.) We
agree. Accordingly, we conclude the record affirmatively estab-
lishes that trial counsel was not ineffective for failing to object
to the amended complaint.
CONCLUSION
For the foregoing reasons, we affirm the order of the district
court affirming Roebuck’s conviction and sentence for assault
and battery in violation of Lincoln Mun. Code § 9.12.010.
Additionally, we conclude the appellate record is insufficient
to determine whether trial counsel was ineffective for failing to
call as witnesses the mother and sister of F.P. and for failing
to properly advise Roebuck on his right to testify. With regard
to the remaining claims of ineffective assistance, we conclude
the record affirmatively establishes either that trial counsel was
not ineffective or that Roebuck cannot show prejudice.
Affirmed.