State v. Malcom ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. MALCOM
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
CHRISTOPHER T. MALCOM, APPELLANT.
Filed December 5, 2023. No. A-22-668.
Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.
Candice C. Wooster, of Brennan, Nielsen, & Wooster Law Offices, for appellant.
Michael Hilgers, Attorney General, and Jordan Osborne for appellee.
RIEDMANN, BISHOP, and WELCH, Judges.
BISHOP, Judge.
I. INTRODUCTION
Following a jury trial in the Lancaster County District Court, Christopher T. Malcom was
convicted of possession of a firearm by a prohibited person and sentenced to 5 to 7 years’
imprisonment. Malcom appeals, claiming there was insufficient evidence to support his
conviction, his motion to suppress certain evidence should have been granted, and his sentence
was excessive. He also asserts six claims of ineffective assistance of trial counsel. We affirm
Malcom’s conviction and sentence. We also find the record sufficient to determine that all claims
of ineffective assistance of trial counsel fail.
II. BACKGROUND
1. PRETRIAL PROCEEDINGS
On June 24, 2021, a search warrant was executed on an apartment in Lincoln, Nebraska; a
shotgun, ammunition, and a substance believed to be methamphetamine were confiscated and
-1-
Malcom was arrested. The same day, the State filed a complaint in the county court of Lancaster
County charging Malcom with two counts: count 1, possession of methamphetamine with intent
to deliver, pursuant to Neb. Rev. Stat. § 28-416(10)(b) (Cum. Supp. 2022), a Class IC felony; and
count 2, possession of a firearm by a prohibited person, pursuant to Neb. Rev. Stat. § 28-1206(1)
and (3)(b) (Cum. Supp. 2022), a Class ID felony. The case was bound over to the district court and
on November 10, the State filed an information charging Malcom as set forth in the initial
complaint. The State subsequently filed a motion to dismiss count 1, which the court granted.
Malcom filed a motion to suppress in the district court, seeking to suppress the “search
warrant and subsequent arrest of [Malcom]” because “when the search warrant was executed,
items were included and seized that were not in the apartment unit in the warrant.” He also moved
to suppress “any and all statements given to police” by Malcom because such “statements were
not voluntary and given under advisement of rights.” At the hearing on his motion, Malcom argued
that the search warrant executed by law enforcement on June 24, 2021, “was issued for unit No.
1,” but the firearm seized by law enforcement that day was found in a separate apartment. The
State’s position was that the area described as a separate apartment was part of apartment 1 and
that law enforcement acted in good faith.
The State called Officer Brian Gruber from the Lincoln Police Department (LPD). Officer
Gruber testified that as part of an investigation into Malcom in June 2021, he authored an affidavit
requesting a warrant to search Malcom’s apartment and seize certain items from it. The affidavit
was entered into evidence for purposes of the hearing.
In the affidavit, Officer Gruber stated that on June 4, 2021, he “received an anonymous tip
from a source of information that there were large quantities of methamphetamine being sold”
from an apartment building at an address on 12th Street. The following day, Officer Gruber
conducted “drive by surveillance” and observed “short term foot traffic” at the apartment building,
which is “consistent with drug sales.” On June 6, while surveilling the apartment building from a
distance, Officer Gruber observed a vehicle park at the apartment building. The driver exited the
vehicle, entered the apartment building, and left within a period of 10 minutes. Officer Gruber
contacted the driver after it drove away, and the driver (who was the sole occupant) of the vehicle
admitted to there being methamphetamine inside the vehicle. On June 9, while conducting
additional surveillance, Officer Gruber observed another vehicle leave from the apartment
building. Upon contacting the driver, Officer Gruber again found that the driver was in possession
of methamphetamine, along with a firearm and $922 in cash.
Officer Gruber stated that on June 15, 2021, while assisting in an unrelated arson
investigation at the same apartment building, he observed that the doors of the apartment units
were open. While walking through the apartment building, he “observed there to be several items
of drug paraphernalia inside of apartment #1.” During the investigation, Officer Gruber contacted
Malcom, who stated that he lived in apartment 1 and was the maintenance worker for the apartment
building.
Officer Gruber stated that on June 16, 2021, he “had contact with a confidential informant
(CI) of known reliability” who claimed that they were present in “apartment #1 almost daily for
the last month,” during which time they observed over 50 drug transactions take place. The CI
informed Officer Gruber that a white male who went by the nickname “Fugi” lived in apartment
1 and was a maintenance worker for the apartment building. The CI stated that Fugi sold
-2-
methamphetamine from his apartment with another man, who was described as a “black male with
short dreads” and the CI claimed the two men were “connected to the Cartel and received
shipments of methamphetamine directly.” While at apartment 1 on June 10, the CI had seen Fugi
“in possession of an AR-15 style rifle” and observed Fugi “place[] the rifle in a hiding spot.” The
CI described the hiding spot as a “hole in the wall” behind a dresser in Fugi’s apartment. The CI
confirmed the identity of “Fugi” as Malcom by identifying him “from a book in photograph.”
Officer Gruber conducted a criminal history search on Malcom and “observed him to be a
convicted felon prohibit[ed] from possessing a firearm.”
The search warrant issued based upon Officer Gruber’s affidavit was also entered into
evidence. It commanded law enforcement “to search [an address on] 12th Street #1, Lincoln,
Lancaster County, Nebraska,” for illegal substances and items commonly used for their ingestion
or preparation and distribution, as well as any firearms, ammunition, or related accessories.
At the hearing, Officer Gruber testified consistently with his affidavit, and he also
described the execution of the search warrant. He stated that his initial role in executing the search
warrant was to block traffic on 12th Street while the SWAT team served the warrant. The role of
the SWAT team was to “make entry and . . . clear the residence,” and after declaring the area safe,
“turn it over to. . . officers to conduct the search of the apartment.” Officer Gruber described
apartment 1 as a single room with no bathroom or kitchen. When the SWAT team entered
apartment 1, they moved a dresser to expose a hole in the drywall, which led to another room with
a bathroom, kitchen, and closet.
Officer Gruber further testified that “most, if not all” of the units in the apartment building
were marked with an apartment number, except for apartment 1. He further stated that the “back
area through the dry wall” had an exterior door which led to the back of the apartment building
and was not marked with an apartment number. Officer Gruber believed the area through the hole
in the wall to be a part of apartment 1. He further stated that law enforcement had been informed
that the hole had previously been used for people to escape during searches by law enforcement.
Law enforcement found a green case containing a 12-gauge shotgun and ammunition in a
closet in the area through the hole. Law enforcement also found ammunition in apartment 1, as
well as a substance believed to be methamphetamine. A pretest conducted on the substance showed
that it was “positive for the presence of amphetamines,” but subsequent crime laboratory testing
of the substance did not confirm the presence of methamphetamine.
Officer Gruber testified that Malcom was found in the room through the hole in the wall
and the SWAT team arrested him and transported him to the LPD station. Officer Gruber later
interviewed Malcom at the station. Officer Gruber did not have a recording of the interview
because his body camera died sometime prior to the interview, and he also no longer had access
to the interview room recording of the interview. Officer Gruber began the interview by explaining
who he was, the types of cases he worked on, and what he specialized in. He also informed Malcom
“the reason why [they] were there and that [he] would like to speak with [Malcom].” He then
provided Malcom with a Miranda advisement by reading aloud a Miranda form and writing
Malcom’s answers to each question on the form. Officer Gruber testified that Malcom did not
provide him with any information prior to waiving his Miranda rights.
According to Officer Gruber, Malcom made various admissions during the interview.
Malcom “mentioned in the interview that it was possible that his DNA or fingerprints could be on
-3-
the firearm due to him moving things throughout the apartment.” Malcom also stated that he lived
in the apartment but that he allowed other individuals to stay there “to get out of the weather.”
Malcom claimed he was in the process of renovating the area through the hole in the wall and that
he had access to the area from his apartment through the hole.
Malcom called Richard Pumel to testify. Pumel and his wife owned the apartment building.
Pumel testified that in exchange for maintenance work, he allowed Malcom to live in one of the
units in his apartment building. At the time the search warrant was executed, Malcom lived in
apartment 1, which was next to apartment 13. Pumel drew a diagram of the apartment building’s
layout, which depicted apartments 1 and 13 as sharing a wall. Pumel stated that apartment 13 had
a door which led to the back of the apartment building, and on June 24, 2021, the door was not
marked with an apartment number because “people ke[pt] taking it off.” Pumel stated that after
the tenant of apartment 13 vacated the unit at the end of May 2021, he and Malcom entered
apartment 13 to determine necessary repairs. According to Pumel, at that time, the hole in the wall
between apartment 1 and apartment 13 was not there; he claimed it was put there later by Malcom.
On cross-examination, Pumel testified that he inspected apartment 13 after the tenant moved out
and all the tenant’s belongings were out of the apartment except “for some blank cases of DVDs
and stuff like that.” Pumel also indicated that he did not direct Malcom to replace any drywall or
to cut a hole between apartments 1 and 13. Pumel further stated that only he and Malcom had
access to apartment 13.
Malcom testified regarding the hole in the wall, stating that he “removed a piece of dry
wall” from apartment 1, which allowed him access to apartment 13 from apartment 1. He stated
that on the date law enforcement executed the search warrant, the dry wall had been “screwed to
the wall but not finished” on the apartment 1 side. On the apartment 13 side there was still a hole.
Malcom also testified regarding his interview with law enforcement. When asked whether he was
“given the Miranda Warning sheet,” he responded “Yes, sir.” He stated that he was not under the
influence of drugs or alcohol during the interview.
Trial counsel argued that evidence of the “gun should be suppressed . . . because it was not
found in Apartment No. 1.” The search warrant authorized a search of apartment 1, not apartment
13, which is where the firearm was found. Trial counsel further argued that the “information that
was taken from the CI was not reliable.” He stated that the CI informed law enforcement that there
were controlled substances in Malcom’s apartment. However, crime laboratory testing determined
that the substance found in the Malcom’s apartment contained “no controlled substances in it at
all.” The CI had reported that there was an AR-15 style firearm “right behind the hole in Apartment
No. 1,” but the firearm was found “in a completely separate room.”
Further, trial counsel noted that he had “real issues” with law enforcement’s failure to
record its interview with Malcom. Trial counsel suggested there was “no evidence of his going
through his Miranda rights” and “it’s hard telling what would have been said during that interview
without being able to have the record of that interview to say whether there were any promises that
were made to . . . Malcom at the time.”
The State argued that the area determined to be apartment 13 was covered by the warrant,
even though the warrant only specifically authorized a search of apartment “#1,” because it was
granted based upon Officer Gruber’s affidavit, which described the hole in the wall and stated that
the apartment to be searched was not numbered. The State argued that Malcom made apartment
-4-
13 “part of his apartment” by using the hole through his apartment to access the area, when he and
the landlord were the only individuals who had access to it.
The State further argued that “[t]he information from the CI was accurate,” considering the
“CI had indicated . . . Malcom was hiding in that area; would use that area to escape; and was
hiding firearms in there.” The State noted that a firearm was indeed found through the hole in the
wall and Malcom himself was found in the area. In the alternative, the State argued that if the
district court found that the area through the wall was a separate residence, then “the good faith
exception applie[d],” since Officer Gruber testified he believed the area through the hole to be part
of apartment 1.
As to Malcom’s statements to law enforcement, the State noted that Malcom did not
provide any evidence about “any coercion or anything that would make [his] statement[s] not
voluntary.” And the State presented evidence that law enforcement provided Malcom with a
Miranda advisement.
The district court found that the “search was pursuant to the warrant” and Malcom’s
“statements were freely, voluntarily, knowingly, and intelligently given with the benefit of being
made aware of his rights under Miranda and waiving them.” It therefore denied Malcom’s motion
to suppress.
On April 27, 2022, Malcom filed a motion in limine, “mov[ing] the Court for an order
limiting the mention of drugs or drug investigation during trial.” The motion was later withdrawn.
2. TRIAL
A jury trial was held in May 2022. However, the jury was unable to reach a unanimous
verdict and the district court declared a mistrial.
The second jury trial took place in July 2022. At trial, the parties stipulated to the fact that
Malcom was a convicted felon at the time of the charged offense. Pumel, Officer Gruber, and
Malcom testified at trial largely as they did at the March 2, 2022, hearing on the motion to suppress.
There was additional testimony from other law enforcement officers, and numerous exhibits were
received into evidence. We now set forth the evidence relevant to the issues on appeal.
(a) Pumel’s Testimony
Pumel testified that Malcom moved into apartment 1 in October 2020. At that time, another
tenant was living in apartment 13. Pumel testified that the tenant moved out of apartment 13 in
November 2020 (rather than in May 2021, as he testified at the suppression hearing). Pumel stated
that he “got the key from her, . . . went in, [and] made a list of the things that [Malcom] needed to
work on.” He stated that there were “CD cases and stuff in the closet” and he instructed the prior
tenant to empty the remaining items from the apartment. Shortly after, the prior tenant informed
Pumel that she had emptied the apartment. Pumel stated that he then confirmed that the apartment
was empty.
According to Pumel, when he checked apartment 13, he noticed that there was a “hole in
the wall in between 13 and 1.” He did not authorize Malcom to cut the hole in the wall and when
asked what his reaction was when he saw the hole, he responded, “[i]t needed to get repaired.” The
State showed Pumel a photograph of the closet in apartment 13, which had the rifle bag containing
the rifle in it, and asked him, “[t]hat was not in there at that time, correct?” Pumel responded, “No,
-5-
sir.” When asked what he would have done if he found a rifle or a shotgun inside the closet, Pumel
stated that he would have confiscated it and found out who it belonged to.
Pumel stated that he did not enter apartment 13 from November 2020, until June 24, 2021.
He further testified that only he and Malcom had keys to apartment 13, and that he was not aware
of anyone breaking into the apartment after November 2020. When asked whether he was aware
of “any residents in [the apartment building] who owned a shotgun or anything like that,” he
responded, “No.”
(b) Officer Gruber’s Testimony
Officer Gruber testified similarly to his testimony at the suppression hearing regarding the
anonymous tip and his subsequent surveillance on the apartment building. He described the traffic
stops he made on two individuals, as well as noted that another LPD officer arrested an individual
who made a short term stop at the apartment building and was found to be in possession of
methamphetamine or a firearm.
Officer Gruber testified that he spoke with an individual who was leaving the apartment
building who agreed to provide law enforcement information regarding various narcotics sales
investigations. This individual informed Officer Gruber that “the residence they came from . . .
was involved in the sales of methamphetamine” and that they had witnessed the individual who
resided at the apartment building complete 50 narcotics transactions. The individual further
informed Officer Gruber that a maintenance worker by the name “Fugi” placed a “tactical AR-15
rifle” in a hole in the wall behind a dresser and then brought his finger up to his lips to “shush[]”
the individual.
Officer Gruber described being present on the property for a fire investigation on June 15,
2021, and his conversation with Malcom at that time. Through the open door to Malcom’s
apartment, he observed “needles and needle caps,” as well as a “glass bulbless [sic] pipe which is
commonly used to smoke methamphetamine.”
Officer Gruber testified that he obtained a search warrant, which was executed on June 24,
2021. He seized several items from apartment 1, including “a single baggie of what looked to be
methamphetamine” weighing 38 grams, “several items of drug paraphernalia” including “pipes,
needles, things of that nature,” and an ammunition belt containing 12-gauge shotgun shells. On
cross-examination, Officer Gruber stated that the contents of the baggie were sent in for testing
and “came back as not a controlled substance.” Officer Gruber testified that he also searched
apartment 13, where he found a green rifle case containing a functioning, loaded 12-gauge shotgun.
He testified that the shotgun had a pistol grip and a sling, which is not typically found on hunting
shotguns. The shotgun shells found in apartment 1 and in the shotgun were made by the same
manufacturer.
Officer Gruber also testified about his interview of Malcom. According to Officer Gruber,
Malcom stated that while he “allow[ed] other people to stay [in apartment 1] to stay out of the
weather,” he was the only person that consistently lived in the unit. Malcom denied ownership of
the shotgun found in apartment 13 but stated that his fingerprints and DNA would probably be on
the shotgun “because he move[d] things throughout the residence.” Officer Gruber testified that
he did not have the shotgun examined for fingerprints or DNA, even though it is “routine” to have
such testing completed on a seized firearm.
-6-
(c) Sergeant Brad Junker’s Testimony
Sergeant Brad Junker testified that he worked for LPD and was on the SWAT team that
cleared Malcom’s apartment on June 24, 2021. When the team entered apartment 1, they saw a
woman on the bed. Two SWAT team members went to the woman to maintain control of her.
Sergeant Junker then found the hole in the drywall behind a piece of furniture that was partially
blocking it. He stated that he “crouched down and . . . looked through th[e] hole” to see Malcom
on the other side of the drywall with a “hatchet with an edged blade on his right hip.” Sergeant
Junker gave Malcom verbal commands to lower himself to the ground and lay on his stomach with
his arms out to the side. Sergeant Junker then entered the room through the hole in the wall.
Another officer followed and placed Malcom in handcuffs and took him into custody.
(d) Malcom’s Testimony
Malcom testified that on June 24, 2021, he lived in apartment 1. He stated that he had lived
in the apartment building for “a year and a half, maybe two years” at that point, and specifically
in apartment 1 for 6 months. He stated that in the early morning of June 24, he was completing
various maintenance tasks throughout the apartment building, including fixing a ceiling fan in
apartment 13. He stated that he entered apartment 13 from the exterior door and had been in there
for 45 minutes to an hour before the execution of the search warrant.
Malcom testified that the prior tenant of apartment 13 had vacated the unit “around
Christmastime” in 2021. He claimed the prior tenant and her adult children continued to have
access to the apartment and “it seemed like things would come and go in there often.” According
to Malcom, the prior tenant stored items in the unit, including “a scooter and . . . a bunch of things
in the closet.”
When shown a photograph taken by law enforcement depicting a large hole in the wall,
Malcom stated that the hole was smaller prior to the search on June 24, 2021. He claimed that from
the apartment 13 side, “it was just a round hole that was probably maybe 2 feet by 2 feet, oblong
shaped.” From the apartment 1 side, he said there was a piece of drywall that had been removed
before he moved into the unit and that he passed tools through the hole to apartment 13. He claimed
that on the morning of the execution of the search warrant, “the dry wall was on the wall” and
there was a dresser and other items against the wall. On cross examination, Malcom stated that the
cut-out piece of drywall was leaned against the wall where it was cut, covering the hole on the
apartment 1 side, but was not nailed into the wall. Malcom testified that the hole was larger after
execution of the search warrant. When asked on cross-examination whether he was “saying the
police removed th[e] dry wall,” Malcom responded, “[t]hat would be my assumption.”
Malcom testified that on June 24, 2021, he was not aware that there was a loaded shotgun
in the closet of apartment 13. When asked why he was unaware of the shotgun, he stated that he
did not “take inventory of all the things that were in there all the time.” Malcom also denied having
knowledge of the shotgun shells or the ammunition belt found near his bed. Malcom did not know
to whom the shotgun belonged.
According to Malcom, when Officer Gruber asked him whether his DNA or fingerprints
would be on the shotgun, he responded that his “DNA’s probably all over th[e] building” since he
was “the maintenance man.” He characterized his response to Officer Gruber as “a flippant remark
made out of frustration.”
-7-
After deliberation, the jury found Malcom guilty of possession of a firearm by a prohibited
person and the district court accepted the jury’s verdict. At a sentencing hearing held on August
15, 2022, the court sentenced Malcom to 5 to 7 years’ imprisonment. A written sentencing order
was entered that same day.
Malcom appeals.
III. ASSIGNMENTS OF ERROR
Malcom assigns that (1) there was insufficient evidence to support a jury verdict that he
violated Neb. Rev. Stat. § 28-1206, possession of a firearm by a prohibited person, because a
rational trier of fact could not find all elements of the offense beyond a reasonable doubt; (2) the
district court erred in overruling his motion to suppress; (3) he received ineffective assistance of
counsel when trial counsel failed to (a) present evidence of a firearms trace examination, (b) renew
the motion to suppress and object to the admission of the evidence obtained pursuant to the search
warrant, (c) attack the reliability or veracity of the statements from the CI in the search warrant
affidavit, (d) object based on hearsay when Officer Gruber testified to statements made by a person
leaving the apartment building during surveillance, (e) object based on hearsay when Officer
Gruber testified to statements made by the CI, and (f) file a motion in limine to keep out any
statements regarding drugs, narcotics, syringes, or methamphetamine; and (4) the court abused its
discretion by imposing an excessive sentence.
IV. STANDARD OF REVIEW
In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence, and such matters are for the finder of fact. State v. Figures, 308 Neb. 801, 957
N.W.2d 161 (2021). The relevant question for an appellate court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Id.Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct
appeal, an appellate court decides only whether the undisputed facts contained within the record
are sufficient to conclusively determine whether counsel did or did not provide effective assistance
and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.
State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
V. ANALYSIS
1. SUFFICIENCY OF EVIDENCE
Malcom argues that the evidence was insufficient to support his conviction of possession
of a deadly weapon by a prohibited person. A person commits the offense of possession of a deadly
weapon by a prohibited person if that person possesses a firearm, a knife, or brass or iron knuckles
and has previously been convicted of a felony. § 28-1206. The parties stipulated that Malcom was
-8-
previously convicted of a felony offense. Thus, the remaining question is whether a rational fact
finder could have determined that Malcom was in possession of a firearm, a knife, or brass or iron
knuckles. There was no evidence that Malcom was in actual possession of the shotgun during the
search at the apartment. We therefore consider whether the evidence supported his constructive
possession of the shotgun.
The doctrine of constructive possession is applicable to the offense of possession of a
deadly weapon by a prohibited person under § 28-1206. See State v. Sherrod, 27 Neb. App. 435,
932 N.W.2d 880 (2019). Constructive possession means the possessor did not have actual
possession but was aware of the presence of the contraband and had dominion or control over it.
Id. Constructive possession may be proved by direct or circumstantial evidence and may be shown
by the accused’s proximity to the item at the time of the arrest or by a showing of dominion over
it. State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021). Mere presence at a place where the
item in question is found is not sufficient to show constructive possession. Id.Malcom argues that the only evidence presented at trial linking him “to the firearm [was]
that he was in Apartment No. 13 when the search warrant was executed and where the firearm was
found.” Brief for appellant at 17. We disagree. Although Malcom correctly notes that mere
presence at a place where a deadly weapon is found is not sufficient to show constructive
possession, we find there was other evidence presented at trial sufficient to link Malcom to the
shotgun.
First, it was undisputed that Malcom had a key to apartment 13, where the shotgun was
found. In State v. Sherrod, supra, this court determined that the defendant’s possession of a key to
a bedroom where the contraband was located was sufficient to show that the defendant had
constructive possession of the contraband. In reaching this conclusion, this court noted that the
Eighth Circuit Court of Appeals “joined every other circuit in ruling that the holder of a key, be it
to a dwelling, vehicle, or motel room in question, has constructive possession of the contents
therein.” See id. at 442, 932 N.W.2d at 888 (citing U.S. v. Timlick, 481 F.3d 1080 (8th Cir. 2007)).
Malcom argues that this case is distinguishable, because he “was not the only person with
a key to Apartment No. 13.” Brief for appellant at 17. He notes that Pumel also had a key and that
it was contested at trial whether the prior tenant still had a key. However, when viewed in the light
most favorable to the prosecution, the evidence supports a finding that the prior tenant did not have
a key. There was also evidence that, although Pumel had access to the apartment, he had not
entered the apartment since November 2020, and Pumel further testified that the former tenant had
removed all property after moving out. We further note that constructive possession need not be
exclusive. See State v. Warlick, 308 Neb. at 682, 956 N.W.2d at 293 (“[t]wo persons may have
constructive possession, or one may have actual possession and the other have constructive
possession”).
There was also evidence that Malcom had access to the apartment through a hole in a wall
shared by apartment 13 and apartment 1, where he resided. Sergeant Junker testified that the hole
was large enough for SWAT team members to crawl through.
Further, at trial, Officer Gruber testified that, when interviewing Malcom, he asked
Malcom whether “his fingerprints or DNA would be on the shotgun to which [Malcom] stated,
probably, because he move[d] things throughout the residence.” Officer Gruber also testified that
the firearm found in the closet of apartment 13 was a 12-gauge shotgun which took 12-gauge
-9-
shells. LPD found an ammunition belt and drawstring bag containing 12-gauge shotgun shells next
to Malcom’s bed in apartment 1. The shells found in apartment 1 were made by the same
manufacturer as the 12-gauge shells loaded in the shotgun found in apartment 13. All this evidence
links Malcom to the shotgun.
In his brief on appeal, Malcom contests the evidence related to the shotgun shells, noting
that at trial, he denied ownership of the shotgun shells found in apartment 1, “there [was] no picture
provided of where those shotgun shells were located,” and there was “no evidence that his
fingerprints were on the firearm, the bag holding the firearm, or the shells.” Brief for appellant at
17. He further notes that there was “no interview of the woman who was in Apartment No. 1 when
the officers arrived,” suggesting the shotgun shells could have been hers. Id.
In further argument that the evidence was not sufficient to support his conviction, Malcom
criticizes law enforcement’s investigation. Specifically, he criticizes law enforcement for the lack
of body camera footage and “audio or visual recording of the interview of Malcom at the police
station.” Id. at 18. He further notes that the “gun was never sent to the lab for DNA testing” even
though “Officer Gruber testified that it is his routine to send . . . firearm[s] to the lab every time
one is seized.” Id. He also argues that there was no photo of apartment 1 prior to the SWAT team
moving the dresser. Finally, he claims that law enforcement failed to interview the other tenants
in the apartment building and the “owner of the firearm discovered through the firearm trace.” Id.
Malcom’s contentions regarding the shotgun shells and law enforcement’s investigation relate to
the weight and credibility of the evidence; however, it is not the role of this court to resolve
conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. See State
v. Figures, supra.We therefore find that the evidence presented at trial, viewed in the light most favorable to
the prosecution, is such that a reasonable trier of fact could have concluded that Malcom had
constructive possession of the shotgun.
2. MOTION TO SUPPRESS
Malcom claims the district court erred when it overruled his motion to suppress. He argues
that his arrest was unlawful, law enforcement exceeded the scope of the search warrant, and the
search was altogether unlawful because the warrant was issued on the basis of an affidavit which
included information from a CI who Malcom contends was not established as reliable.
We agree with the State that Malcom failed to preserve this issue for appeal when he did
not object to testimony at trial regarding evidence found during the execution of the search warrant
or Malcom’s statements to law enforcement following his arrest. In a criminal trial, after a pretrial
hearing and order overruling a defendant’s motion to suppress, the defendant, to preserve the issue
on appeal, must object at trial to the admission of the evidence which was the subject of the
suppression motion. State v. Jones, 293 Neb. 452, 878 N.W.2d 379 (2016). Regardless, we will
reach this issue in our consideration of Malcom’s claims of ineffective assistance of trial counsel.
3. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Malcom is represented by different counsel on direct appeal than he was at trial. When a
defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must
- 10 -
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. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
To prevail on a claim of ineffective assistance of counsel, the defendant must show that his
or her counsel’s performance was deficient and that this deficient performance actually prejudiced
the defendant’s defense. State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020). When a claim
of ineffective assistance of trial counsel is raised in a direct appeal, the appellant is not required to
allege prejudice; however, an appellant must make specific allegations of the conduct that he or
she claims constitutes deficient performance by trial counsel. State v. Theisen, 306 Neb. 591, 946
N.W.2d 677 (2020). In reviewing claims of ineffective assistance of counsel on direct appeal, an
appellate court decides only whether the undisputed facts contained within the record are sufficient
to conclusively determine whether counsel did or did not provide deficient performance and
whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. State
v. Anderson, supra. The record on direct appeal is sufficient to review a claim of ineffective
assistance of trial counsel if it establishes either that trial counsel’s performance was not deficient,
that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be
justified as a part of any plausible trial strategy. Id.To show that counsel’s performance was deficient, a defendant must show that counsel’s
performance did not equal that of a lawyer with ordinary training and skill in criminal law. Id. To
show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have been different. Id. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id.With these governing principles in mind, we turn now to address Malcom’s ineffective
assistance of trial counsel claims.
(a) Failure to Present Evidence of Firearms Trace
Malcom claims he was denied effective assistance of counsel when trial counsel failed to
offer into evidence a firearms trace which was entered into evidence at the first trial. The firearms
trace showed that the shotgun was purchased by an individual whose address was in California.
Malcom argued that “the firearms trace was clearly part of the trial strategy in the first trial, and it
could be argued that it worked to a point since the jury did not reach a unanimous decision on
guilt.” Brief for appellant at 25. Malcom does not elaborate as to how the firearms trace was part
of the trial strategy in the first trial.
We find that trial counsel’s failure to introduce the firearms trace into evidence during the
second trial does not constitute deficient performance since it is not relevant to the sole contested
issue at trial. That the firearm was purchased by an individual in California 3 years prior to the
offense does not make it more or less likely that Malcom was in possession of the firearm on the
date the search warrant was executed. Further, even if trial counsel’s decision not to offer this
evidence at the second trial could be characterized as deficient, Malcom could not establish
prejudice because, as we previously discussed, there was other evidence linking him to the firearm.
Therefore, this claim of ineffective assistance of trial counsel fails.
- 11 -
(b) Failure to Object and Renew Motion to Suppress
Malcom argues that he received ineffective assistance when “trial counsel failed to object
and renew the motion to suppress the evidence and statements obtained from the illegal search,”
thus failing to preserve the issue for appeal. Id. at 26. The motion to suppress asserted that certain
evidence seized by law enforcement should be excluded at trial because the search exceeded the
scope of the warrant. It also asserted that Malcom’s statements to law enforcement should be
suppressed because they were not made voluntarily or pursuant to a Miranda rights advisement.
(i) Evidence Seized in Apartment 13
Regarding trial counsel’s failure to object to the introduction of evidence found in
apartment 13, this claim of ineffective assistance of counsel fails because the evidence was
lawfully obtained. In reviewing a trial court’s ruling on a motion to suppress evidence based on a
claimed violation of the Fourth Amendment, appellate courts apply a two-part standard of review.
See State v. Miller, 312 Neb. 17, 978 N.W.2d 19 (2022). Regarding historical facts, we review the
trial court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that we review independently of the trial court’s determination. Id.And where the facts are largely undisputed, the ultimate question is an issue of law. Id.At the hearing on Malcom’s motion to suppress, Malcom argued that law enforcement
exceeded the scope of the search warrant because they searched apartment 13 and seized items
from that unit. In summary, Malcom’s position was that, because the search warrant specifically
ordered law enforcement to search apartment “#1” of the apartment building, law enforcement was
not permitted to enter and search apartment 13. Therefore, Malcom claims the search of apartment
13 was unlawful and any items seized from apartment 13 were inadmissible at trial. The State
argued that the search warrant contemplated apartment 13 because the underlying affidavit
mentioned the hole in the wall of apartment 1 and the possibility that contraband was being hidden
in the hole. The State also argued that law enforcement acted in good faith when searching
apartment 13 because it believed the unit to be part of apartment 1. Therefore, the good faith
exception to the exclusionary rule applied.
The district court found “that the facts [we]re as testified to by Officer Gruber as well as
Mr. Pumel, whose testimony [the court] found in both instances to be credible in all respects.” We
find no clear error in the court’s historical findings of fact. Based on the evidence presented, the
court concluded “that the search was pursuant to the warrant and that the hole in the wall and the
evidence beyond that hole to be within the scope of that warrant and also in plain view.”
Although the parties dedicate much of their arguments on appeal to whether apartment 13
was part of apartment 1 and therefore within the scope of the warrant, we need not address that
argument because we find that to the extent that law enforcement’s search exceeded the scope of
the search warrant, they did so in good faith. The good faith inquiry is confined to the objectively
ascertainable question whether a reasonably well-trained officer would have known that the search
was illegal despite a magistrate’s authorization. State v. Kruse, 303 Neb. 799, 931 N.W.2d 148(2019). Officers are assumed to have a reasonable knowledge of what the law prohibits. Id. In
assessing the good faith of an officer conducting a search warrant, an appellate court must look to
the totality of the circumstances surrounding the issuance of the warrant, including information
not contained within the four corners of the affidavit. Id.- 12 -
Law enforcement’s conduct and discoveries made in the process of executing the search
warrant in this case weigh in favor of finding good faith. Officer Gruber testified that, when
executing the search warrant, he believed the area through the hole in the wall to be part of
apartment 1. He stated this belief was based upon information he had obtained from the CI that the
area through the hole was used for storing illegal substances and firearms. This information was
contained in the underlying affidavit to the search warrant. Officer Gruber testified that LPD was
also aware that the hole had previously been used for people to escape detection by law
enforcement.
Officer Gruber further testified that apartment 1 is a single room with no bathroom or
kitchen. When clearing the unit, the SWAT team moved a dresser in the room, exposing the hole
in the wall, through which Malcom was located. The hole was large enough for officers to crawl
through. Upon entering the area through the hole, it was discovered that the area consisted of a
“main room,” a kitchen, a bathroom, and an additional room with a closet. A photograph of the
apartment received into evidence at the suppression hearing showed that the closet where the
shotgun was found did not have a door, making the contents of the closet plainly visible. The area
had a door which led to the outside of the apartment building. Unlike the other units in the
apartment building, the doors to apartments 1 and 13 were not marked with apartment numbers.
Thus, while the language of the search warrant provided that the premises to be searched
included apartment “#1,” it was unclear to law enforcement when executing the search what
constituted apartment 1. Since apartment 1 consisted of merely a single room with no bathroom or
kitchen, it was reasonable for law enforcement to believe that the unit was part of a larger
apartment unit consisting of additional rooms. There was nothing indicating to law enforcement
that apartment 13 was a separate unit, since the unit was not marked with an apartment number at
the time. Further, law enforcement was aware that apartment 1 extended to some degree through
the hole in the wall, since they were aware that individuals were possibly using the area through
the hole in the wall to escape searches by law enforcement and hide contraband. Given the overall
context of this search, we find law enforcement’s conduct to be covered by the good faith
exception. Therefore, the evidence found in apartment 13 was lawfully obtained.
(ii) Malcom’s Statements to Law Enforcement
As to Malcom’s statements to law enforcement, the district court found that they “were
freely, voluntarily, knowingly, and intelligently given with the benefit of being made aware of his
rights under Miranda and waiving them.”
To be a valid waiver of Miranda rights, the waiver must be knowing and voluntary. See
State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). A waiver is knowing if it is made with
a full awareness of both the nature of the right being abandoned and the consequences of the
decision to abandon it. See id. A waiver is voluntary if it is the product of a free and deliberate
choice rather than through intimidation, coercion, or deception. See id. The standard for
determining voluntariness in the context of a Miranda waiver is the same standard used to
determine the voluntariness of confessions. Id. Whether a knowing and voluntary waiver has been
made is determined by looking to the totality of the circumstances. Id.As we previously stated, we find no clear error in the district court’s historical findings of
fact. We further find that the record establishes that trial counsel was not deficient in failing to
- 13 -
object to Malcom’s statements to law enforcement presented at trial because Malcom validly
waived his Miranda rights prior to making the statements to law enforcement.
Malcom’s waiver was made knowingly since he received a complete advisement of his
Miranda rights from Officer Gruber. Officer Gruber testified at the suppression hearing that before
beginning the interview, he informed Malcom “why [they] were there and that [he] would like to
speak with [Malcom].” He then advised Malcom of his rights utilizing a “Miranda Warning and
Waiver” form which contained the following six typewritten questions:
Q. I would like to advise you that I am a Police Officer. Do you understand that?
Q. You have the right to remain silent and not make any statements or answer any
of my questions. Do you understand that?
Q. Anything you may say can be, and will be, used against you in a court of law.
Do you understand that?
Q. You have the right to talk to a lawyer before answering any questions and have
the lawyer with you during the questioning. Do you understand that?
Q. If you cannot afford a lawyer, you have the right to have a lawyer appointed for
you prior to questioning, at no cost to you. Do you understand that?
Q. Knowing your Rights in this matter, are you willing to answer questions or make
a statement to me now?
Officer Gruber testified that he read each question to Malcom and handwrote Malcom’s
corresponding answers in the blank spaces beneath each question on the form. Malcom answered
“Yeah” to each question. Malcom’s signature appears at the bottom of the form. Officer Gruber
testified that during the interview, Malcom “appeared normal” and did not appear to be under the
influence of alcohol or narcotics; rather, he appeared to be alert and followed Officer Gruber’s
questions.
The record also shows that Malcom’s waiver was made voluntarily. Malcom was not
handcuffed during the interview and Officer Gruber testified that he did not make any promises to
Malcom to get him to provide a statement, nor did he use any force or threat of violence to get
Malcom to waive his Miranda rights. Malcom did not introduce any evidence at trial contesting
Officer Gruber’s testimony, nor does he claim on appeal that such evidence exists. Rather, he
merely reiterates his argument from the suppression hearing that Officer Gruber’s failure to capture
the interview by body camera or timely save the interview room recording of the interview
somehow suggests wrongdoing on the part of law enforcement. However, when Malcom provided
testimony regarding the interview at the suppression hearing, he did not testify that law
enforcement engaged in any such misconduct. In fact, when asked whether he was “given the
Miranda Warning sheet,” he responded “Yes, sir.” Malcom also does not assert any facts on appeal
that would suggest he did not knowingly and voluntarily waive his Miranda rights.
We therefore find that Malcom’s trial counsel was not deficient for failing to object to the
introduction of evidence obtained under the search warrant or to Malcom’s statements given to
law enforcement because such objections would have failed. This claim of ineffective assistance
of trial counsel fails. See State v. Devers, 313 Neb. 866, 986 N.W.2d 747 (2023) (counsel cannot
be ineffective for failing to raise meritless argument).
- 14 -
(c) Failure to Attack Reliability of CI
Malcom argues that he received ineffective assistance when trial counsel “failed to attack
the reliability or veracity of the [CI]” at the suppression hearing. Brief for appellant at 26. He
claims that the affidavit failed to meet the standard for sufficiency of an affidavit in support of a
search warrant which relies upon the strength of a CI’s information because it did not “identify
any information to show that the [CI] is reliable.” Id. at 27. He contends that had trial counsel
adequately challenged the reliability of the CI, Malcom’s motion to suppress would have been
granted and the firearm seized during the search would have been excluded at trial.
The record establishes that trial counsel was not deficient for failing to challenge the
adequacy of the affidavit because the affidavit contained information sufficient to establish the
credibility of the CI. When a search warrant is obtained on the strength of an informant’s
information, the affidavit in support of the issuance of the warrant must (1) set forth facts
demonstrating the basis of the informant’s knowledge of criminal activity and (2) establish the
informant’s credibility, or the informant’s credibility must be established in the affidavit through
a police officer’s independent investigation. State v. Hidalgo, 296 Neb. 912, 896 N.W.2d 148(2017). These two prongs are not accorded “independent status,” but, rather, are better understood
as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided
probable-cause determinations: a deficiency in one may be compensated for, in determining the
overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.
Id. at 918, 896 N.W.2d at 153.
The reliability of an informant may be established by showing in the affidavit to obtain a
search warrant that (1) the informant has given reliable information to police officers in the past,
(2) the informant is a citizen informant, (3) the informant has made a statement that is against his
or her penal interest, and (4) a police officer’s independent investigation establishes the
informant’s reliability or the reliability of the information the informant has given. See id. An
affidavit in support of the issuance of a search warrant must affirmatively set forth the
circumstances from which the status of the informant can reasonably be inferred. Id.
Here, the affidavit set forth facts demonstrating the basis of the CI’s knowledge of criminal
activity. Specifically, it stated that the CI had been present in Malcom’s apartment every day for a
month. During that time, the CI witnessed over 50 drug transactions take place and saw Malcom
in possession of a firearm. The affidavit also established the CI’s credibility through Officer
Gruber’s independent investigation of the activities taking place at the apartment building. Officer
Gruber stated in the affidavit that he had observed “short term traffic . . . consistent with drug
sales” and found methamphetamine on two separate individuals who each entered the apartment
building for a short period of time. He also observed drug paraphernalia in Malcom’s apartment
unit when he entered the apartment building for an unrelated call for service. This all suggested
the presence of controlled substances in Malcom’s apartment and that he was selling such
substances. Officer Gruber also knew that the individual living in apartment 1 was Malcom, the
maintenance worker for the apartment building. The information provided to Officer Gruber by
the CI largely aligned with the information Officer Gruber had obtained through his own
independent investigation, demonstrating the reliability of the CI.
- 15 -
Malcom notes that the affidavit did not show that certain portions of the CI’s tip were
verified by law enforcement. For example, he states that there is “no mention in the search warrant
affidavit as to whether Officer Gruber had seen this [CI] in the apartment building before or
whether he had even seen a male with short [dreads] to corroborate the information from the [CI].”
Brief for appellant at 27. However, the entire tip need not be corroborated or verified by law
enforcement to justify probable cause for a search warrant. See State v. Hidalgo, supra (finding
that anonymous tip was sufficiently supported by law enforcement investigation, even when not
all details of tip were confirmed by investigation). This claim of ineffective assistance of trial
counsel fails.
(d) Failure to Object to Hearsay
Malcom assigns that he received ineffective assistance when trial counsel failed to object
to Officer Gruber’s testimony regarding out of court statements made by a “person leaving the
apartment building during surveillance” and “statements made by a confidential informant.” Brief
for appellant at 10. On our review of the record, it appears that the “person leaving the apartment
building,” id., is the same individual as the CI. As noted by the State, “While Officer Gruber
testified he stopped people leaving the building as part of his independent investigation, the only
statements of such a person that were mentioned during the second jury trial were those made by
the CI.” Brief for appellee at 33. We agree that Officer Gruber’s testimony at trial about his
conversation with the person who left the apartment building matches the content of his affidavit
regarding information received from the CI. We therefore discuss these assigned errors as one.
Malcom argues that Officer Gruber’s testimony regarding the CI’s statements was “highly
prejudicial,” because “Malcom had no way to counter it or cross examine the individual who made
the alleged statement to Officer Gruber.” Id. at 28. Malcom specifically takes issue with Officer
Gruber’s testimony regarding the CI’s statements about drug sales and the presence of a firearm
in Malcom’s apartment. However, as noted by the State, even if trial counsel had objected to this
testimony, the State could have argued it was not hearsay because it was not being offered to prove
the truth of the matter asserted. Rather, “the CI’s statements were only offered to provide context
as to why a search warrant was being executed at that residence.” Brief for appellee at 33. We
agree.
If an out-of-court statement is not offered for the purpose of proving the truth of the facts
asserted, it is not hearsay. See State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010). In this case,
the challenged testimony was provided not to prove the truth of the CI’s statements, but to explain
why a search warrant was obtained. But even if trial counsel was somehow deficient for not making
a hearsay objection, Malcom would not be able to establish prejudice. The fact that Officer Gruber
was permitted to testify about the CI’s observations about matters within the apartment, along with
other investigative measures taken to support the issuance of a search warrant, did not prejudice
Malcom’s defense, particularly since Malcom himself testified. Malcom did not deny the presence
of the shotgun in apartment 13; rather, his defense was that it was not his gun, that he was not
aware of its presence, and that he was only in apartment 13 for maintenance matters. The jury was
able to consider Malcom’s testimony and weigh it against other evidence, such as the ammunition
belt and drawstring bag containing 12-gauge shotgun shells next to Malcom’s bed in apartment 1,
which were made by the same manufacturer as the 12-gauge shells loaded in the shotgun found in
- 16 -
apartment 13, and the fact that only Malcom and Pumel had keys to that apartment. Malcom would
be unable to demonstrate a reasonable probability that but for trial counsel’s alleged deficient
performance as to this claim, the result of the proceeding would have been different. This claim of
ineffective assistance of trial counsel fails.
(e) Failure to File Motion In Limine
Malcom contends that he received ineffective assistance of counsel when trial counsel
“failed to file a motion in limine to keep out any statements regarding drug sales or surveillance
of possible drug sales.” Brief for appellant at 29. He notes that trial counsel filed a motion in limine
requesting that the district court limit the mention of drugs and the drug investigation, but later
withdrew the motion during the first trial and never renewed or refiled it prior to the second trial.
Malcom argues that there was no reason to mention drugs and that “[d]rugs are by nature
considered bad things and associated with criminals.” Id. at 30.
The State contends that Malcom cannot show deficient performance or prejudice because
“the drugs were intrinsic evidence of the firearm offense.” Brief for appellee at 34. The State points
to United States v. Cunningham, 702 Fed. Appx. 489 (8th Cir. 2017) where “drug-related evidence
was found to be properly admissible as intrinsic to the offense charged of felon in possession of a
firearm because it provided context and background for the gun charge, as well as a motive for
possessing the firearm.” Brief for appellee at 34. See, also, United States v. Claxton, 276 F.3d 420(8th Cir. 2002) (no abuse of discretion where district court admitted evidence of drug-related
activities during trial on felon-in-possession charge, given close and well-known connection
between firearms and drugs). We agree that intrinsic evidence is admissible to provide context in
certain circumstances, and that the testimony about drugs in this case was necessary to provide the
full story for why the search warrant was obtained, which ultimately led to the discovery of the
shotgun. See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012) (intrinsic evidence or evidence
necessary to tell complete story of crime is admissible to provide context in which crime occurred).
But even if trial counsel was somehow deficient for withdrawing the motion in limine, Malcom
would be unable to establish prejudice. Regarding the drugs located in apartment 1, Officer Gruber
stated that the contents of the baggie were sent in for testing and “came back as not a controlled
substance.” Further, although testimony about drugs provided a basis for securing a search warrant,
the jury was tasked only with determining whether the shotgun was constructively possessed by
Malcom. We have already addressed the sufficiency of the evidence on that issue and conclude
that Malcom cannot demonstrate the outcome of his trial would have been different had the jury
never heard about drugs suspected of being sold out of apartment 1. We find this claim of
ineffective assistance also fails.
4. EXCESSIVE SENTENCE
Malcom claims the district court abused its discretion when it imposed an excessive
sentence. Malcom was convicted of one count of possession of a firearm by a prohibited person, a
Class ID felony. A Class ID felony is punishable by a mandatory minimum of 3 years’
imprisonment and up to 50 years’ imprisonment. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022).
The court sentenced Malcom to 5 to 7 years’ imprisonment. Malcom’s sentence is within the
- 17 -
statutory range; as such, we review the court’s sentencing determination only for an abuse of
discretion.
When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense, and (8) the amount of violence involved in the commission of the crime.
State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s
life. Id.Malcom was 43 years old at the time of sentencing. According to the presentence
investigation report (PSR), Malcom was married and had no dependents. He obtained his GED
and worked in building maintenance prior to his incarceration.
Malcom’s criminal history dating back to 1997 includes numerous convictions for
possession of marijuana, several convictions related to firearms, a couple “DUI” convictions, a
couple assault-related convictions, and more. A “Level of Service/Case Management Inventory”
assessed Malcom as a very high risk to reoffend.
The PSR included a letter from trial counsel, wherein trial counsel emphasized that
Malcom had spent 416 days incarcerated since his arrest in June 2021. He further noted that
Malcom took “responsibility for his predicament” and acknowledged that “he should have been
more cognizant of his surroundings and the potential he had from criminal charges of a firearm
being found at or near him.” At the sentencing hearing, trial counsel reiterated that Malcom had
taken responsibility for his actions. Malcom declined to address the district court when given the
opportunity.
The State noted that the present offense was Malcom’s “fourth conviction for firearms
violations.” It further pointed out that the shotgun found to be in his possession was a “tactical-style
shotgun that had a pistol grip.” The State emphasized that it was “slung loaded so that it could be
carried . . . straight down from a person’s chest. It wasn’t carried shoulder style like a hunter would
carry a shotgun.” Further, Malcom had 82 rounds of ammunition. The State argued that this
“created a substantial risk to our community.”
The district court stated that it had taken into consideration all the information in the PSR,
the information gleaned from the trials, and trial counsel’s comments. It found the present offense
to be serious and said that it was concerning that this was Malcom’s fourth firearms related
conviction. The court found that imprisonment was necessary for the protection of the public and
because the risk was so substantial Malcom would engage in additional criminal conduct during a
period of probation and a lesser sentence would depreciate the seriousness of Malcom’s crime and
promote disrespect for the law. The court then sentenced Malcom as previously set forth.
In his brief on appeal, Malcom claims that the district court abused its discretion by failing
to consider the lack of violence involved in his offense. He acknowledges that while a sentence
must be fashioned to deter others, it should also rehabilitate the defendant. He argues that while
“any case involving a weapon can be considered a serious offense,” the court could have “deterred
others with a sentence of time served.” Brief for appellant at 32.
- 18 -
We find no abuse of discretion by the district court in sentencing Malcom. First, we note
that Malcom’s crime was subject to a mandatory minimum of 3 years’ imprisonment; thus, time
served would not have been appropriate. Furthermore, because the appropriateness of a sentence
is necessarily a subjective judgment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s
life, a sentencing court is accorded very wide discretion in imposing a sentence. See State v.
Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017). To the extent Malcom argues that the court did
not adequately consider certain mitigating factors, we note that it is evident that the court had
before it all the information that Malcom suggests should have resulted in a lesser sentence.
However, it was within the sentencing court’s discretion to weigh more heavily the factors
supporting a lengthier sentence, such as the seriousness of the offense and Malcom’s history of
similar criminal activity. We therefore cannot say the court abused its discretion in determining
the sentence imposed.
VI. CONCLUSION
For the reasons set forth above, we affirm Malcom’s conviction and sentence. We further
conclude that the record before us is sufficient to address all of Malcom’s claims of ineffective
assistance of trial counsel and we find that they all fail.
AFFIRMED.
- 19 -