State v. Warrack ( 2014 )

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considered on appeal. Butler County Dairy v. Butler County,
285 Neb. 408, 827 N.W.2d 267 (2013). We therefore decline to
address this issue.
CONCLUSION
We conclude that Cameron and Amanda failed to timely
appeal from the orders denying the motions to transfer the
cases to tribal court. As such, this court is without jurisdic-
tion to address Cameron and Amanda’s argument that the
juvenile court erred in that respect. Upon our de novo review,
we find that the State presented clear and convincing evi-
dence that termination of Cameron’s and Amanda’s parental
rights to Shane, Lena, Hanna, and Jadys was in the children’s
best interests. Accordingly, we affirm the orders of the juve-
nile court.
Affirmed.
State of Nebraska, appellee, v.
John T. Warrack, appellant.
___ N.W.2d ___
Filed January 7, 2014. No. A-13-025.
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 historical 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 inde-
pendently of the trial court’s determination.
2. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the government. These constitu-
tional provisions do not protect citizens from all governmental intrusion, but only
from unreasonable intrusions.
3. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless
searches and seizures are per se unreasonable under the Fourth Amendment, sub-
ject only to a few specifically established and well-delineated exceptions, which
must be strictly confined by their justifications.
4. Constitutional Law: Search and Seizure: Words and Phrases. Although every
trespass, by definition, invades someone’s right of possession, not every trespass
violates the Fourth Amendment.
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5. Constitutional Law: Search and Seizure. The Fourth Amendment protects
people, not places.
6. ____: ____. To determine whether a person has an interest protected by the
Fourth Amendment, one must question whether the person has a legitimate
expectation of privacy in the invaded space.
7. ____: ____. A subjective expectation of privacy is legitimate if it is one that
society is prepared to recognize as reasonable.
8. Police Officers and Sheriffs: Warrants. A police officer not armed with a war-
rant may approach a home and knock, precisely because that is no more than any
private citizen might do.
9. Search and Seizure: Streets and Sidewalks. Our society does not reasonably
expect a sidewalk leading to one’s front door to be private in the absence of evi-
dence to the contrary.
10. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court’s
conclusions with regard to evidentiary foundation and witness qualification for an
abuse of discretion.
11. Convictions: Evidence: Appeal and Error. In reviewing 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.
12. ____: ____: ____. The relevant question for an appellate court in reviewing a suf-
ficiency of the evidence claim 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.
13. Aiding and Abetting: Proof. Aiding and abetting requires some participation in
a criminal act which must be evidenced by some word, act, or deed, and mere
encouragement or assistance is sufficient to make one an aider or abettor; how-
ever, no particular acts are necessary, nor is it necessary that the defendant take
physical part in the commission of the crime or that there was an express agree-
ment to commit the crime.
14. ____: ____. Evidence of mere presence, acquiescence, or silence is not enough to
sustain the State’s burden of proving guilt under an aiding and abetting theory.
15. Aiding and Abetting: Intent: Liability. When a crime requires the existence of
a particular intent, an alleged aider or abettor can be held criminally liable as a
principal if it is shown that the aider and abettor knew that the perpetrator of the
act possessed the required intent or that the aider and abettor himself or herself
possessed such.
16. Criminal Law: Intent. The question whether the defendant had the required
criminal intent is a fact question for the jury.
17. ____: ____. A direct expression of intention by the actor is not required in
determining criminal intent, 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.
18. Criminal Attempt. Whether a defendant’s conduct constitutes a substantial step
toward the commission of a particular crime and is an attempt is generally a ques-
tion of fact.
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19. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of
ineffective assistance of counsel, the defendant must show that counsel’s per­
formance was deficient and that this deficient performance actually prejudiced
his or her defense. An appellate court may address the two prongs of this test,
deficient performance and prejudice, in either order.
20. Criminal Law: Effectiveness of Counsel. A trial counsel’s performance was
deficient if it did not equal that of a lawyer with ordinary training and skill in
criminal law.
21. Effectiveness of Counsel: Appeal and Error. In addressing the “prejudice”
component of the test to determine ineffective assistance of counsel, an appellate
court focuses on whether a trial counsel’s deficient performance renders the result
of the trial unreliable or the proceeding fundamentally unfair.
22. Effectiveness of Counsel: Proof. To show prejudice in an ineffective assistance
of counsel claim, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding would have
been different.
23. Proof: Words and Phrases. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.
24. Effectiveness of Counsel: Proof: Appeal and Error. When an appellant does
not allege both prongs of an ineffective assistance of counsel claim, deficient
performance and prejudice, resolution of his or her assertions of ineffective
assistance of counsel hinges not on the adequacy of the record before the appel-
late court, but on his or her failure to provide the appellate court with sufficient
allegations of ineffective assistance of counsel.
25. ____: ____: ____. When an appellant does not sufficiently allege his or her inef-
fective assistance of counsel claims, an appellate court is constrained to find that
the assertions of ineffective assistance of counsel are without merit.
Appeal from the District Court for Lancaster County: Karen
B. Flowers, Judge. Affirmed.
Michelle M. Mitchell, of Mitchell Law Office, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Inbody, Chief Judge, and Irwin and Riedmann, Judges.
Riedmann, Judge.
I. INTRODUCTION
John T. Warrack appeals from his convictions in the district
court for Lancaster County on aiding and abetting delivery of
methamphetamine within 1,000 feet of a school and attempted
delivery of methamphetamine. He argues that the district
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court erred in failing to grant his motion to suppress, that
his foundational objection to certain testimony should have
been sustained, that the evidence was insufficient to sustain
the convictions on both counts, and that he received inef-
fective assistance of counsel. We affirm the convictions in
all respects.
II. BACKGROUND
Jordan Wilmes is an investigator with the Lincoln-Lancaster
County narcotics task force. In May 2011, a confidential
informant (CI) informed Wilmes that an individual with the
street name “Chicago” was involved with methamphetamine
sales. The CI provided Wilmes with a telephone number for
Chicago. The CI placed a recorded call to Chicago on May
23, indicating that he was looking for an “eight ball” for a
client. The term “eight ball” refers to one-eighth of an ounce
of drugs.
In response to the CI’s request, Chicago stated that his “guy”
could get what the CI wanted for “three and a quarter.” Wilmes
testified at trial that “three and a quarter” referred to a price
of $325 for the quantity of drugs requested. Wilmes testified
that the recorded call was a typical conversation arranging for
a drug purchase, where the individuals discuss whom the drugs
are for, a price, and a quantity.
The CI placed another recorded call to Chicago on May 27,
2011, and indicated that his client was “still looking for that
ice cream.” The term “ice cream” is a common term for meth-
amphetamine. Chicago asked whether the CI was still looking
for the same amount, an “eight ball.” The CI confirmed that
he was.
On May 31, 2011, the CI again placed a recorded tele-
phone call to Chicago. During that call, the CI told Chicago
that he was going to have his client, “Chris,” who was really
Wilmes working undercover, contact Chicago. Shortly there-
after, Wilmes, acting as Chris, placed a recorded call to
Chicago. Wilmes asked Chicago for a “t-shirt” and a “‘T.’”
These terms represent one-sixteenth of an ounce of drugs.
Chicago indicated the price for a “T” would be $210. After
this series of telephone calls, Wilmes understood that he was
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going to be meeting with Chicago for the purpose of purchas-
ing methamphetamine.
After the telephone calls, Wilmes exchanged text messages
with Chicago, and they established a lower price for the drug
and a place to meet. After Wilmes arrived at the agreed-upon
location, he received a telephone call from Chicago changing
the location. Wilmes provided a description of his vehicle to
Chicago, and Chicago asked Wilmes to park at the northeast
corner of 14th and C Streets and wait for him.
Once Wilmes was parked at the intersection of 14th and C
Streets, he observed a middle-aged black male and a middle-
aged white female approaching his vehicle. The male opened
the passenger door of Wilmes’ vehicle and told Wilmes that
he was going to have the female “hook [him] up with what
[he] was trying to get.” Wilmes recognized the man’s voice
from the telephone calls he had exchanged with the individual
known as Chicago. The male then left, and the female, later
identified as Rabbeca Seaman, got into Wilmes’ vehicle.
Seaman told Wilmes her name was “Becca,” and Wilmes
introduced himself as “Chris.” Wilmes informed Seaman of
his dealings with Chicago and told her that he was looking to
acquire “drugs or dope.” Wilmes gave Seaman $200, and she
left her purse in the vehicle as collateral. Seaman got out of
the vehicle and entered a house on the southeast corner of 14th
and C Streets. She returned to the vehicle shortly thereafter and
gave Wilmes a bag containing a substance later confirmed to
be methamphetamine.
On June 14, 2011, Wilmes placed another recorded tele-
phone call to Chicago. In the call, Wilmes reminded Chicago
that he was “[w]hite boy Chris in the green car,” and indicated
that he was “trying to get something tonight” but that he was
unable to reach Seaman. Wilmes asked to purchase an “eight
ball,” and they arranged to meet at the “same place.”
Wilmes arrived at the intersection of 14th and C Streets,
where a man with a tattoo on his neck that read “Chicago”
got into Wilmes’ vehicle. It was the same man Wilmes had
met on May 31, 2011. Warrack directed Wilmes to drive to an
apartment complex near 14th and D Streets. Wilmes indicated
that he had $200, and they discussed the quantity that Wilmes
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wanted to buy. Warrack then asked Wilmes to “front him the
money” so that he could go purchase the methamphetamine.
Wilmes asked Warrack to leave collateral to ensure that he
would return with the methamphetamine, so Warrack gave
Wilmes a set of keys. Warrack then took the $200, got out
of Wilmes’ vehicle, and began walking northbound across D
Street. Wilmes waited for approximately 30 to 45 minutes, but
Warrack never returned. Wilmes’ subsequent telephone calls to
Warrack went unanswered.
In early November 2011, Lincoln police officer Timothy
Cronin was directed to arrest Warrack for the theft of $200
from Wilmes. On November 11, Cronin and Lincoln police
investigator Jeff Sorensen were driving in Lincoln, when they
observed Warrack sitting on the porch of his home. Cronin
and Sorensen parked their vehicle and approached the resi-
dence on foot. Cronin walked up onto the porch and identified
himself as a police officer. Sorensen was standing either on
the porch or on the steps leading from the sidewalk up to the
porch. Cronin asked Warrack to step down off the porch so
they could talk on the sidewalk, and he did so. Once Warrack
was on the sidewalk, he was arrested for theft and transported
to jail.
Warrack was booked into jail and placed in an interview
room, advised of his Miranda rights, and questioned by Cronin
and Sorensen. With respect to the May 31, 2011, incident,
Warrack told the officers that someone named “Chris” had con-
tacted him, looking to purchase an “eight ball” of methamphet-
amine. Warrack stated that he told Chris that he knew someone
from whom Chris could purchase methamphetamine, in refer-
ence to Seaman. Warrack said that he agreed to meet Chris at
14th and C Streets and pointed him out to Seaman upon arrival.
Warrack stated that that was the extent of his involvement and
commented that Chris called him first, that he only “‘hooked
[Chris] up with [Seaman],’” and that he “‘never touched any-
thing.’” Cronin testified that Warrack stated two or three times,
“‘All I did was set it up.’”
The officers also asked Warrack about the June 14, 2011,
incident, and initially, he denied any involvement. When
Cronin told Warrack that he had personally observed Warrack
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meeting with Wilmes, Warrack admitted that he did meet with
Wilmes but denied taking any money from him. Warrack stated
to Cronin that he did not sell methamphetamine to Wilmes
because he knew Wilmes was an undercover officer.
Warrack was subsequently charged with aiding and abetting
delivery of methamphetamine within 1,000 feet of a school and
attempted delivery of methamphetamine. Prior to trial, Warrack
filed a motion to suppress the statements he made to the offi-
cers, arguing that the statements were the result of an illegal
arrest. The district court denied Warrack’s motion, concluding
that he was lawfully arrested.
A jury trial was held on November 5 and 6, 2012. The jury
ultimately found Warrack guilty of both offenses, and he was
sentenced to 3 to 6 years’ imprisonment on count I and a con-
secutive sentence of 1 to 2 years’ imprisonment on count II.
Warrack timely appeals to this court.
III. ASSIGNMENTS OF ERROR
Warrack assigns, summarized and renumbered, that the dis-
trict court erred in (1) overruling his motion to suppress, (2)
overruling his foundational objection to certain testimony, and
(3) finding sufficient evidence to sustain the convictions on
both counts. He also assigns that he received ineffective assist­
ance of counsel.
IV. ANALYSIS
1. Motion to Suppress
[1] Warrack argues that the district court erred when it failed
to grant his motion to suppress evidence based on an illegal
arrest. In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review. Regarding historical
facts, we review the trial court’s finding for clear error. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination. State v. Alarcon-Chavez, 284
Neb. 322, 821 N.W.2d 359 (2012).
[2,3] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution protect individuals
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against unreasonable searches and seizures by the government.
These constitutional provisions do not protect citizens from
all governmental intrusion, but only from unreasonable intru-
sions. State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010).
Warrantless searches and seizures are per se unreasonable
under the Fourth Amendment, subject only to a few specifi-
cally established and well-delineated exceptions, which must
be strictly confined by their justifications. Smith, supra.
[4-7] Although every trespass, by definition, invades some-
one’s right of possession, not every trespass violates the
Fourth Amendment. State v. Ramaekers, 257 Neb. 391, 597
N.W.2d 608 (1999). The “‘“Fourth Amendment protects peo-
ple, not places.”’” 257 Neb. at 394, 597 N.W.2d at 611
(emphasis in original) (quoting Katz v. United States, 389 U.S.
347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). Therefore, to
determine whether a person has an interest protected by the
Fourth Amendment, one must question whether the person
has a legitimate expectation of privacy in the invaded space.
Ramaekers, supra. A subjective expectation of privacy is
legitimate if it is one that society is prepared to recognize as
reasonable. Id.
Warrack cites Florida v. Jardines, ___ U.S. ___, 133 S.
Ct. 1409, 185 L. Ed. 2d 495 (2013), to argue that Cronin and
Sorensen effectuated an unlawful arrest when they physi-
cally entered and occupied an area immediately surrounding
his home, which is curtilage and protected by the Fourth
Amendment. In Jardines, police officers took a drug-sniffing
dog onto the defendant’s porch and the dog alerted the offi-
cers to narcotics inside the home. One of the officers then
received a warrant to search the residence. The trial court
granted the defendant’s motion to suppress based upon an
illegal search.
The U.S. Supreme Court granted certiorari, limited to the
question of whether the officers’ behavior was a search within
the meaning of the Fourth Amendment. On appeal, the Court
confirmed that the porch area where the officers were gather-
ing information is an area that enjoys protection as part of the
home itself. Despite this protection, tradition in our country
allows a visitor to approach a home by the front path, knock
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promptly, wait briefly to be received, and then (absent invita-
tion to linger longer) leave. See Jardines, supra. However, the
Court found that introducing a trained police dog to explore
this area in hopes of discovering incriminating evidence was
“something else.” 133 S. Ct. at 1416. The Court stated that
“the background social norms that invite a visitor to the front
door do not invite him there to conduct a search.” Id. Based on
this finding, the Court concluded that the defendant’s motion to
suppress was properly granted.
[8] Jardines is distinguishable from the present case. The
use of the drug-sniffing dog on the defendant’s porch was
found to be a trespassory invasion because it was being used to
discover evidence and, thus, constituted a “search” for Fourth
Amendment purposes. In this case, the officers did not conduct
a search or seizure on Warrack’s porch. Rather, they merely
stepped onto the porch to request that Warrack step down to
the sidewalk, which he did willingly. As the Supreme Court
iterated in Jardines, “a police officer not armed with a warrant
may approach a home and knock, precisely because that is ‘no
more than any private citizen might do.’” 133 S. Ct. at 1416
(quoting Kentucky v. King, ___ U.S. ___, 131 S. Ct. 1849, 179
L. Ed. 2d 865 (2011)). As such, the officers’ mere presence on
Warrack’s porch was permissible.
We conclude that Warrack’s arrest was lawful, because the
officers were authorized to step onto Warrack’s porch and
speak with him and Warrack willingly left his porch and was
arrested on the sidewalk, a location in which he had no rea-
sonable expectation of privacy. In State v. Boysaw, 228 Neb.
316, 422 N.W.2d 346 (1988), the Nebraska Supreme Court
upheld the warrantless arrest of the defendant. Based on the
trial court’s findings of fact, the defendant was inside his
home when he observed police officers arrive. He went to the
doorway as the officers came onto the porch, he opened the
door, and he asked whether he could help them. The officers
asked the defendant to step outside; the defendant did so and
was arrested. The trial court determined that although officers
asked the defendant to step outside, he had not been intimi-
dated into leaving his residence, and that he was not arrested
until he left the protection of his residence, at which time
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he no longer had a reasonable expectation of privacy. Upon
finding support in the record for the trial court’s factual find-
ings, the Supreme Court concluded that the defendant’s arrest
was lawful.
Likewise, in this case, Warrack was not intimidated into
leaving his porch and he was arrested in a location where he
had no reasonable expectation of privacy. Cronin and Sorensen
asked Warrack to step onto the sidewalk, and he did so coop-
eratively. The district court found that although the officers
identified themselves as police officers, they did not draw their
guns, touch Warrack in any way, or otherwise try to intimidate
or coerce him. These factual findings are consistent with the
testimony of Cronin and Sorensen.
[9] Once Warrack was on the sidewalk, he was placed under
arrest. As the Nebraska Supreme Court recognized in State v.
Ramaekers, 257 Neb. 391, 597 N.W.2d 608 (1999), our society
does not reasonably expect a sidewalk leading to one’s front
door to be private in the absence of evidence to the contrary.
There is nothing in the record to indicate Warrack attempted
to make the sidewalk leading to his home private. In fact,
Cronin testified that he and Sorensen were able to freely walk
from the sidewalk up to the porch. We therefore conclude that
Warrack did not have a reasonable expectation of privacy in
the location at which he was arrested. As such, his arrest was
lawful, and the district court did not err in denying his motion
to suppress.
2. Foundational Objection
Lincoln police officer Todd Kozian testified at trial regard-
ing his involvement in this case. Kozian assisted Wilmes in
measuring the distance from the elementary school located at
11th and C Streets to the location where the drug transaction
between Wilmes and Seaman occurred. An aerial map depict-
ing the area from approximately 11th Street to 14th Street and
A Street to D Street was received into evidence.
Kozian testified that he obtained the measurements using
a “Lidar” device, which is a laser that measures speed and
distance. From the northeast corner of 14th and C Streets, the
location where Wilmes told Kozian the transaction occurred,
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Kozian was unable to get a clear line of sight to the school
because there were houses obstructing his view. To get a clear
view, he moved into the intersection to obtain the distance. At
trial, he marked the aerial map with a red “x” to show the loca-
tion where he was standing.
During direct examination, Kozian was asked to use the
legend on the aerial map to estimate the approximate distance
from his marked location to the location of the house that
Seaman entered to purchase the methamphetamine. Warrack
asserted a foundational objection to the question, which the
court overruled. Kozian then estimated the distance as approxi-
mately 100 feet. On appeal, Warrack claims the district court
erred in overruling his objection.
[10] An appellate court reviews the trial court’s conclusions
with regard to evidentiary foundation and witness qualification
for an abuse of discretion. State v. Richardson, 285 Neb. 847,
830 N.W.2d 183 (2013).
Warrack cites Richardson to argue that there was insuf-
ficient foundation establishing the accuracy of Kozian’s esti-
mate, that Kozian’s ability to estimate distance and the aerial
map were not compared to a standard, and that there was no
evidence that the scale of the map was accurate. The principles
discussed in Richardson apply only to electronic or mechanical
measuring devices, and Warrack urges us to find that Kozian
himself and the aerial map were “measuring devices.” We
decline to do so, because witnesses and maps are not elec-
tronic or mechanical. Thus, Richardson is not applicable for
the issue at hand.
We conclude that the district court did not abuse its dis-
cretion in overruling Warrack’s foundational objection to
Kozian’s estimate. The map from which Kozian estimated
the distance was offered into evidence by the State on three
occasions and received each time without objection from
Warrack. Any concerns Warrack had regarding the accuracy
of the legend should have been resolved through objection to
admission of the exhibit, not objection to Kozian’s testimony
based on the map. Thus, the map was properly before the jury
as an exhibit and available for the jury’s consideration during
deliberations. Whether Kozian’s estimated distance using the
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map’s legend was accurate was simply a matter of whether
the jury found his testimony credible, and any questions con-
cerning the credibility of a witness are solely for the jury as
finder of fact to resolve. See State v. Watt, 285 Neb. 647, 832
N.W.2d 459 (2013). Accordingly, this assignment of error is
without merit.
3. Sufficiency of Evidence
[11,12] Warrack argues that there was insufficient evidence
to support his convictions. In reviewing a sufficiency of the
evidence claim, whether the evidence is direct, circumstantial,
or a combination thereof, the standard is the same: An appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact. State v. Watson, 285 Neb. 497,
827 N.W.2d 507 (2013). 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 rea-
sonable doubt. Id. Because we have detailed the facts in the
background section of this opinion, we do not restate them in
detail below.
(a) Aiding and Abetting
Warrack was charged with aiding and abetting delivery of
methamphetamine within 1,000 feet of a school, in violation
of Neb. Rev. Stat. §§ 28-416(4)(a)(ii) (Cum. Supp. 2012) and
28-206 (Reissue 2008). Section 28-416(4)(a)(ii) prohibits any
person 18 years of age or older from knowingly or intention-
ally delivering a controlled substance within 1,000 feet of the
real property comprising a public elementary school. Section
28-206 provides that a person who aids, abets, procures, or
causes another to commit any offense may be prosecuted and
punished as if he or she were the principal offender.
Warrack claims that the State failed to prove three essential
elements of the charged offense: (1) that he was “Chicago,” (2)
that he possessed the required knowledge or intent to commit
the charged offense, and (3) that the drug transaction occurred
within 1,000 feet of a school. In general, Warrack argues that
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“unreliable, inconsistent and conflicting testimony” along with
Kozian’s unreliable estimated distance resulted in the State’s
failure to meet its burden. Brief for appellant at 43. We reject
Warrack’s arguments and find that the State adduced sufficient
evidence so that a rational jury could have found all elements
of the offense beyond a reasonable doubt.
(i) Identity
Warrack first argues that the evidence was insufficient to
show that he was the person with whom Wilmes exchanged
telephone calls and text messages. We conclude the evidence
was sufficient for a rational jury to find that Warrack was
“Chicago.”
As set forth above, Wilmes exchanged multiple telephone
calls and text messages with an individual with the street name
“Chicago.” When Wilmes arrived at the designated location on
May 31 and June 14, 2011, he had contact with an individual
whose voice he recognized as the man on the telephone with
whom he made arrangements for a drug deal.
Seaman testified that she and Warrack used to be neighbors
and that she knows him by the names “John,” “Travante,” and
“Chicago.” She testified that Warrack picked her up on May
31, 2011, so that she could buy methamphetamine from a man
named “Jessie” and provide the drugs to Warrack to sell to
someone else. On the way to Jessie’s house, Warrack was talk-
ing on his cell phone, asking the person with whom he was
speaking what type of vehicle he or she was driving. Seaman
and Warrack then met up with Wilmes. Warrack told Wilmes
that Seaman would “hook [him] up,” and Seaman ultimately
sold methamphetamine to Wilmes. We also note that Warrack
has a tattoo on his neck that reads “Chicago.”
In addition to the above testimony, Warrack, himself, made
admissions to Cronin and Sorensen about his conversations
with someone named “Chris” and the steps he took to meet him
at 14th and C Streets. Based on the foregoing, we conclude that
the evidence was sufficient for a rational jury to conclude that
Warrack was the person who exchanged telephone calls and
text messages with Wilmes.
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(ii) Knowledge or Intent
[13-15] Warrack also claims the State failed to prove that
he intended for Seaman to deliver methamphetamine or that
he knew she intended to do so. Aiding and abetting requires
some participation in a criminal act which must be evidenced
by some word, act, or deed, and mere encouragement or assist­
ance is sufficient to make one an aider or abettor; however,
no particular acts are necessary, nor is it necessary that the
defendant take physical part in the commission of the crime or
that there was an express agreement to commit the crime. State
v. Ramsay, 257 Neb. 430, 598 N.W.2d 51 (1999). Evidence
of mere presence, acquiescence, or silence is not enough to
sustain the State’s burden of proving guilt under an aiding and
abetting theory. Id. When a crime requires the existence of a
particular intent, an alleged aider or abettor can be held crimi-
nally liable as a principal if it is shown that the aider and abet-
tor knew that the perpetrator of the act possessed the required
intent or that the aider and abettor himself or herself possessed
such. Id.
Seaman’s testimony that she accepted $200 from Wilmes
and, in exchange, provided him with methamphetamine con-
stitutes direct evidence that she knowingly or intentionally
delivered methamphetamine to Wilmes. Because the offense
requires a specific intent, in order to convict Warrack as an
aider and abettor, the State was required to prove either that
he intended to deliver methamphetamine or that he knew
Seaman possessed such an intent prior to committing the act.
See id.
[16,17] The question whether the defendant had the required
criminal intent is a fact question for the jury. State v. Scott,
225 Neb. 146, 403 N.W.2d 351 (1987), disapproved on other
grounds, State v. Culver, 233 Neb. 228, 444 N.W.2d 662
(1989). A direct expression of intention 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, 11 Neb. Ct. App. 52, 642
N.W.2d 517 (2002).
Decisions of the Nebraska Court of Appeals
618 21 NEBRASKA APPELLATE REPORTS
Viewing the evidence in a light most favorable to the State,
we conclude that there is sufficient evidence for a rational
jury to find that Warrack intended to deliver methamphet-
amine or knew that Seaman possessed such an intent. From
the testimony of Wilmes and Seaman outlined above, the jury
could infer that the sale of methamphetamine from Seaman to
Wilmes occurred because Warrack arranged it.
Moreover, the statements Warrack made to Cronin and
Sorensen after he was arrested provides sufficient evidence that
Warrack knew Seaman intended to deliver methamphetamine.
His comments that “‘[Chris] called me first,’” “‘All I did was
set it up,’” and “‘I hooked him up with [Seaman]’” provide
sufficient evidence to support the jury’s finding that Warrack
intended to deliver methamphetamine or knew that Seaman
possessed such an intent.
(iii) Distance From School
Warrack also alleges that the State failed to prove that
Seaman delivered methamphetamine within 1,000 feet of a
school. He argues that the discrepancies between Seaman’s
and Wilmes’ testimony along with Kozian’s estimated distance
rendered the evidence doubtful and lacking as to the element of
“within 1,000 feet of a school.”
Wilmes testified that the drug transaction with Seaman
occurred on the northeast corner of 14th and C Streets. An
elementary school is located at 11th and C Streets. Kozian
attempted to measure the distance from the school to the north-
east corner of 14th and C Streets, but he had to move out into
the intersection in order to have a clear line of sight to the
school. The distance from the intersection to the northeast cor-
ner of the school building was 888 feet. The distance from the
intersection to the northeast corner of the school property line
was 623 feet. We conclude that this evidence is sufficient for a
rational jury to have found that Seaman delivered the metham-
phetamine to Wilmes within 1,000 feet of a school.
In general, in support of this assignment of error, Warrack
makes several arguments as to why he believes the evidence
was insufficient to support his conviction, but what he is
Decisions of the Nebraska Court of Appeals
STATE v. WARRACK 619
Cite as 21 Neb. Ct. App. 604
a
­ sking us to do is reweigh the evidence presented to the jury.
This we cannot do. See State v. Dixon, 282 Neb. 274, 802
N.W.2d 866 (2011). Viewing the evidence in the light most
favorable to the State, we conclude that the evidence was
sufficient for the jury to find Warrack guilty of aiding and
abetting delivery of methamphetamine within 1,000 feet of
a school.
(b) Attempted Delivery
[18] Warrack was charged with attempted delivery of meth-
amphetamine in violation of § 28-416(1) and Neb. Rev. Stat.
§ 28-201 (Cum. Supp. 2010). Section 28-416(1) prohibits any
person from knowingly or intentionally delivering a controlled
substance. Under § 28-201(1)(b), a person is guilty of an
attempt to commit a crime if that person “engages in conduct
which, under the circumstances as he or she believes them
to be, constitutes a substantial step in a course of conduct
intended to culminate in his or her commission of the crime.”
Whether a defendant’s conduct constitutes a substantial step
toward the commission of a particular crime and is an attempt
is generally a question of fact. State v. Babbitt, 277 Neb. 327,
762 N.W.2d 58 (2009).
Warrack argues that the State failed to prove that he intended
the result of his actions to be the delivery of methamphetamine,
if the circumstances were as he believed them to be, and failed
to prove that he took a substantial step toward that end. He
claims that it was not possible for him to complete a metham-
phetamine delivery, because he did not have methamphetamine
on his person.
We are not persuaded that the absence of methamphetamine
on Warrack’s person at the time he was in Wilmes’ vehicle
made it impossible for him to commit the offense. The facts
reveal that the process by which Warrack delivered metham-
phetamine was by arranging a meeting via telephone, arriving
at the agreed-upon location, accepting money either person-
ally or through Seaman, leaving collateral, going elsewhere to
obtain the methamphetamine, and then returning to deliver the
drugs to Wilmes.
Decisions of the Nebraska Court of Appeals
620 21 NEBRASKA APPELLATE REPORTS
When we view the evidence most favorable to the State,
the record shows that Warrack completed all of the above
steps, with the exception of returning to the vehicle to deliver
the drugs.
Warrack argues that “[t]heft of money cannot be said to be
strongly corroborative of a person’s intent to deliver metham-
phetamine.” Brief for appellant at 50. Theft of money alone
may not be sufficient evidence from which to infer an intent to
deliver drugs, but the theft must be viewed in the context of the
circumstances surrounding this incident. By Warrack’s agree-
ing to meet with Wilmes after Wilmes indicated he was look-
ing for an “eight ball,” arriving at the agreed-upon location,
discussing the transaction, and accepting money while leaving
collateral behind, a jury could find that Warrack intended to
deliver methamphetamine.
Warrack also claims the State failed to prove that Warrack
intended to deliver methamphetamine, specifically. Again we
must look at the facts surrounding the incident and consider
the totality of the circumstances. When the CI and Warrack
communicated in May 2011, the CI indicated that his client,
Chris, was looking for some “ice cream,” a common term
used to describe methamphetamine. Warrack arranged for the
delivery of methamphetamine to Wilmes through Seaman.
When Wilmes contacted Warrack again, on June 14, Wilmes
indicated that he was looking to “get something” and they
arranged to meet at the “same place.” According to Wilmes,
after Warrack got into Wilmes’ vehicle, they “had a con-
versation regarding methamphetamine.” Wilmes testified that
Warrack told him that he needed Wilmes to “front him the
money first to get the methamphetamine and bring it back
to [Wilmes].” This evidence was sufficient to support the
jury’s finding that Warrack intended to deliver methamphet-
amine, specifically.
Based on the foregoing, we conclude that the State adduced
sufficient evidence so that a rational jury could find that
Warrack intentionally engaged in conduct that constituted a
substantial step toward the delivery of methamphetamine.
Accordingly, this assignment of error is without merit.
Decisions of the Nebraska Court of Appeals
STATE v. WARRACK 621
Cite as 21 Neb. Ct. App. 604
4. Ineffective Assistance
of Counsel
[19] Warrack claims that he received ineffective assistance
of counsel in six respects. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that counsel’s
performance was deficient and that this deficient performance
actually prejudiced his or her defense. An appellate court may
address the two prongs of this test, deficient performance and
prejudice, in either order. See State v. Edwards, 284 Neb. 382,
821 N.W.2d 680 (2012).
[20-23] A trial counsel’s performance was deficient if it did
not equal that of a lawyer with ordinary training and skill in
criminal law. Id. In addressing the “prejudice” component of
the test, an appellate court focuses on whether a trial counsel’s
deficient performance renders the result of the trial unreliable
or the proceeding fundamentally unfair. See id. To show preju-
dice, the defendant must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the
proceeding would have been different. See id. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome. Id.
Warrack alleges that he received ineffective assistance of
counsel in six respects. His brief on these claims is limited
to the general argument that trial counsel was ineffective and
a brief recitation of how his counsel’s performance was defi-
cient. In a conclusory, general statement, Warrack claims that
these six failures of trial counsel prejudiced him; he does not,
however, allege how any of these actions prejudiced him or
how the result would have been different but for his counsel’s
deficient performance.
[24,25] The issue with respect to these claims is not the suf-
ficiency of the record, but the sufficiency of the allegations. In
order to prevail on a claim of ineffective assistance of counsel,
a defendant must show that his or her counsel’s performance
was deficient and that he or she was prejudiced by such defi-
ciency. See State v. Derr, 19 Neb. Ct. App. 326, 809 N.W.2d 520
(2011). When an appellant does not allege both prongs of
an ineffective assistance of counsel claim, “resolution of his
Decisions of the Nebraska Court of Appeals
622 21 NEBRASKA APPELLATE REPORTS
assertions of ineffective assistance of counsel hinge[s] not on
the adequacy of the record before us, but on his failure to pro-
vide this court with sufficient allegations of ineffective assist­
ance of counsel.” Id. at 329, 809 N.W.2d at 523. As we held in
Derr, when an appellant does not sufficiently allege his or her
ineffective assistance of counsel claims, we are constrained to
find that the assertions of ineffective assistance of counsel are
without merit. Accordingly, we find Warrack’s allegations to be
insufficient because he fails to allege how he was prejudiced
by his counsel’s performance.
(a) Failure to Question Jurors
on Racial Bias
Warrack claims his trial counsel was ineffective for failing
to question prospective jurors in a manner in which to identify
any racial bias. He does not identify, however, how this failure
prejudiced him or how the outcome would have been different
had his counsel posed such questions. This assertion is there-
fore meritless.
(b) Failure to Confer and
Consult With Warrack
Warrack alleges his trial counsel was ineffective for fail-
ing to confer and consult with him regarding his case so as to
allow him to make informed decisions regarding his defense.
Warrack concedes that the communication between trial coun-
sel and him is not contained in the record, but he does not
direct our attention to any specific decisions on which he
was not consulted or explain how this failure prejudiced him.
Accordingly, we reject this claim.
(c) Failure to Ensure
Mental Competency
Warrack claims his trial counsel was ineffective for failing
to ensure his mental competency prior to trial and sentencing.
He fails to indicate how the result of the proceeding would
have likely been different but for counsel’s deficient perform­
ance. Thus, this assertion has no merit.
Decisions of the Nebraska Court of Appeals
STATE v. WARRACK 623
Cite as 21 Neb. Ct. App. 604
(d) Failure to Request Limiting
Jury Instruction
Warrack alleges his trial counsel was ineffective for failing
to request a limiting jury instruction regarding each offense.
Warrack simply explains that trial counsel filed a motion to
sever the two counts contained in the second amended infor-
mation, and the district court overruled the motion. He notes
that trial counsel renewed the motion to sever at the beginning
of trial, but did not request a limiting jury instruction. Again,
Warrack failed to allege how he was prejudiced by this action.
As such, we must reject this claim.
(e) Failure to Obtain Ruling
on Motion in Limine
Warrack claims his trial counsel was ineffective for fail-
ing to obtain a ruling on the State’s motion in limine. Prior
to trial, the State filed a motion in limine seeking to pro-
hibit Warrack from making any efforts to change or conceal
the tattoo on his neck. The State also requested the court’s
permission to photograph the tattoo. Warrack’s trial counsel
indicated that she was unsure of her position on the request to
photograph the tattoo, and the court directed her to file either
an objection or no objection so that the court could issue an
order. Trial counsel never made either filing, and the State’s
photographs of the tattoo were received into evidence at trial
with no objection.
As discussed above, there was sufficient evidence presented
for the jury to find that Warrack was “Chicago.” More impor-
tant, in his ineffectiveness claim, Warrack does not allege how
he was prejudiced by the introduction of the photographs.
Accordingly, this assertion is without merit.
(f) Failure to File Motion
for New Trial
Warrack alleges his trial counsel was ineffective for failing
to file a motion for new trial. He notes that trial counsel moved
for a dismissal of both counts or, in the alternative, a directed
verdict of acquittal on both counts based upon insufficiency
of the evidence, yet failed to file a motion for new trial based
Decisions of the Nebraska Court of Appeals
624 21 NEBRASKA APPELLATE REPORTS
upon the same grounds. As we previously concluded, the evi-
dence was sufficient to sustain Warrack’s convictions on both
counts. Because Warrack fails to allege how he was prejudiced
by this action, we reject this claim.
V. CONCLUSION
We conclude Warrack’s arrest was lawful, because he was
not arrested until he had willingly stepped from his porch onto
the sidewalk and he had no reasonable expectation of privacy
on the sidewalk. Therefore, the district court did not err in
denying his motion to suppress. In addition, the court prop-
erly overruled Warrack’s foundational objection to Kozian’s
testimony, because Kozian’s credibility was a matter solely
for the jury to determine. We also find that the State adduced
sufficient evidence to support Warrack’s convictions on both
counts. Finally, we reject all six of Warrack’s claims of inef-
fective assistance of counsel because he failed to allege how
he was prejudiced by trial counsel’s actions. Accordingly, we
affirm Warrack’s convictions for aiding and abetting deliv-
ery of methamphetamine within 1,000 feet of a school and
attempted delivery of methamphetamine.
Affirmed.
In re I nterest of
Athina M., a child
under18 years of age.
State of Nebraska, appellee, v.
Darwin M., appellant.
___ N.W.2d ___
Filed January 7, 2014. No. A-13-189.
1. Juvenile Courts: Evidence: Appeal and Error. Cases arising under the
Nebraska Juvenile Code are reviewed de novo on the record, and an appellate
court is required to reach a conclusion independent of the trial court’s findings.
However, when the evidence is in conflict, the appellate court will consider and
give weight to the fact that the lower court observed the witnesses and accepted
one version of the facts over the other.
2. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012) provides
11 separate conditions, any one of which can serve as the basis for the termina-
tion of parental rights when coupled with evidence that termination is in the best
interests of the child.