State v. Wheeler ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. WHEELER
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.
JANUARY T. WHEELER, APPELLANT.
Filed November 1, 2022. No. A-21-1036.
Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.
Timothy S. Noerrlinger, of Naylor & Rappl Law Office, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
PIRTLE, Chief Judge, and BISHOP and ARTERBURN, Judges.
PIRTLE, Chief Judge.
I. INTRODUCTION
January T. Wheeler appeals from his conviction and sentence on one count of possession
of a firearm by a prohibited person. Following a jury trial in the district court for Lancaster County,
Wheeler was found guilty of the above charge and sentenced to 25 to 30 years of incarceration.
On appeal, Wheeler challenges the sufficiency of the evidence and the district court’s rulings
regarding the use of extrinsic evidence to impeach a witness. Wheeler also asserts the district court
imposed an excessive sentence and raises five claims of ineffective assistance of trial counsel. For
the reasons that follow, we affirm.
II. BACKGROUND
This case revolves around a shooting incident which occurred at approximately 12:30 a.m.
on December 6, 2020, at a house located on Blue Flame Road in Lincoln, Nebraska. The ensuing
law enforcement investigation led to Wheeler’s arrest and he was charged with first degree assault
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(count 1), use of a firearm to commit a felony (count 2), and possession of a firearm by a prohibited
person (count 3). After trial, a jury acquitted Wheeler on counts 1 and 2, and those charges are not
at issue in this appeal. With respect to count 3, Wheeler stipulated that he had previously been
convicted of a felony and was a person prohibited from possessing a firearm on or about December
6, 2020. Accordingly, the only question for the jury on count 3 was whether Wheeler possessed a
firearm on or about that date.
On the night in question, law enforcement responded to three separate reports of arguing
and gunshots in the area of Blue Flame Road. One of the calls came from a next-door neighbor,
Kortney Jackson, who testified at trial that she heard people arguing outside just before 12:30 a.m.
Jackson was prompted to call 911 when she heard someone say, “Do it, do it,” followed by the
sound of three gunshots in rapid succession.
Upon arrival, law enforcement officers located a trail of blood droplets extending from the
end of the driveway to the front door of the home. The exigent circumstances justified a cursory
search of the home, which revealed additional blood droplets inside. Outside the home, officers
discovered four spent shell casings and one spent bullet. Officers also learned of an individual
being treated for apparent gunshot wounds at a nearby hospital. This individual was later identified
as Brandon Wagner. Wagner had three bullet wounds: one on the left side of his chest, one on the
lower left side of his back, and a “grazing wound” on his upper back. Wagner survived his wounds
but remained in the hospital for almost a month.
The evidence at trial revealed that a mutual friend, Kristian Hespen, introduced Wagner to
Wheeler a couple weeks prior to the shooting, and the three men began working together to acquire
and sell drugs. As part of this enterprise, Wagner gave Wheeler various items to either sell or
exchange for drugs. Wagner estimated that the items were worth a total of approximately $400. It
is unclear what happened to the items, but Wagner began to insist that Wheeler either pay for or
return them. Tensions between Wagner and Wheeler continued to rise until the day of the shooting
when Wagner confronted Wheeler at the house on Blue Flame Road.
When Wagner arrived at the house, his intentions were clear; “I was getting paid or we
were fighting, one or the other.” Wagner testified that he first encountered Hespen in the driveway
of the home. After a brief exchange with Hespen, Wagner approached the front door of the home
in search of Wheeler. According to Wagner, he opened the front door and immediately saw
Wheeler holding a tan handgun with an extended clip. There was conflicting evidence as to
precisely how the ensuing altercation played out; however, the record is clear that Wagner was
ultimately shot three times, and both Wagner and Hespen positively identified Wheeler as the
shooter. Wheeler was also injured in the altercation, and the trail of blood droplets discovered at
the scene was later attributed to Wheeler.
Hespen testified that immediately after the shooting, while Hespen was helping Wagner
into his car, Wheeler gave Hespen the gun and told him to “get rid of this.” Hespen took the gun
and later left it in an apartment located on Saint Paul Avenue. A few weeks later, law enforcement
officers executed an unrelated search warrant at that apartment and seized a tan Glock 9 millimeter
handgun with an extended clip. Wheeler’s blood was discovered inside the barrel of the seized
gun, and forensic analysis linked the gun to the spent casings and bullet discovered at the scene.
Upon examining the tan Glock 9 millimeter at trial, Hespen identified it as Wheeler’s gun,
noting a distinctive belt clip attached to the side of the gun. In addition to seeing Wheeler with the
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gun at the time of the shooting, Wagner and Hespen both testified to seeing the same gun at
Wheeler’s apartment sometime in the weeks leading up to the shooting. Wagner also testified that
Wheeler was generally known to carry a gun around that time. Based on the evidence adduced at
trial, the jury found Wheeler guilty on count 3, possession of a firearm by a prohibited person.
Following a presentence investigation, the district court sentenced Wheeler to 25 to 30
years of incarceration, with credit for 339 days served. In pronouncing the sentence, the court
emphasized Wheeler’s “absolute denial” of responsibility and his record of criminal behavior.
Wheeler appealed through new counsel.
III. ASSIGNMENTS OF ERROR
Wheeler assigns that the district court erred in (1) entering a guilty verdict unsupported by
sufficient admissible evidence, (2) not allowing defense counsel to impeach certain witnesses
through extrinsic evidence, and (3) imposing an excessive sentence.
Wheeler also assigns that his trial counsel was ineffective for failing to (1) object to
evidence that Wheeler was previously seen with a gun, (2) object to evidence of Wheeler’s
character for possession of a firearm, (3) offer cell phone records to impeach Wagner’s testimony,
(4) call three witnesses, and (5) properly impeach Wagner’s testimony.
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; such matters are for the finder of fact. State v. Garcia, 311 Neb. 648, 974 N.W.2d 305(2022). The relevant question 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.In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is
controlled by the Nebraska Evidence Rules and judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. State v. Wood, 310 Neb. 391, 966 N.W.2d
825 (2021). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the
discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse
of discretion. Id.A sentence imposed within the statutory limits will not be disturbed on appeal in the
absence of an abuse of discretion by the trial court. State v. Morton, 310 Neb. 355, 966 N.W.2d 57(2021).
The fact that an ineffective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved on direct appeal; the determining factor is whether the
record is sufficient to adequately review the question. State v. Blake, 310 Neb. 769, 969 N.W.2d
399 (2022). The record is sufficient to resolve on direct appeal a claim of ineffective assistance of
counsel if the record affirmatively proves or rebuts either deficiency or prejudice with respect to
the defendant’s claims. Id.-3-
V. ANALYSIS
1. SUFFICIENCY OF EVIDENCE
Wheeler first challenges the sufficiency of the evidence against him on count 3. Wheeler
was charged with possession of a firearm by a prohibited person, which is a Class ID felony in
violation of Neb. Rev. Stat. § 28-1206(1) (Reissue 2016). In pertinent part, § 28-1206(1) provides
that a person commits the offense if he or she possesses a firearm and has been previously
convicted of a felony. Wheeler stipulated that he had been previously convicted of a felony, so the
only question on appeal is whether, after viewing the evidence in the light most favorable to the
prosecution, a rational jury could have found that Wheeler possessed a firearm on or about
December 6, 2020.
Wheeler argues it was inconsistent for the jury to simultaneously find him guilty of
possessing a firearm and acquit him of the related assault charges. The State counters that the
verdict is not necessarily inconsistent because the jury could have acquitted Wheeler on counts 1
and 2 on the grounds of self-defense. While the State briefly mentioned self-defense in closing
arguments, we note that Wheeler did not raise self-defense at trial, and the jury was not instructed
on self-defense. In any case, a conviction cannot be overturned solely because it is inconsistent
with the jury’s decision not to convict on another count. See State v. Briggs, 303 Neb. 352, 929
N.W.2d 65 (2019) (citing, Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356(1932); U.S. v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984)). Rather, a sufficiency
of the evidence review of one count is conducted independent of the jury’s determination that the
evidence was insufficient on another count. Id.Thus, we examine the sufficiency of the evidence in support of Wheeler’s conviction
without regard to his acquittal on the other charges. Wagner testified that Wheeler was generally
known to carry a gun around the time of the shooting. Wagner and Hespen both observed a tan
handgun with an extended clip at Wheeler’s apartment in the weeks leading up to the shooting.
Wagner and Hespen both testified that Wheeler possessed the same gun on the night of the
shooting. Wheeler’s blood was found at the scene of the shooting, and Wagner and Hespen both
identified Wheeler as the shooter. Wheeler’s blood was also found inside the barrel of the gun that
was used in the shooting. Viewing the evidence in the light most favorable to the prosecution, the
evidence was sufficient for a rational jury to conclude that Wheeler possessed a firearm on or about
December 6, 2020.
2. IMPEACHMENT OF WITNESSES
Wheeler next assigns that the district court erred in sustaining the State’s improper
impeachment objections. Specifically, Wheeler argues that the court’s rulings violated his
constitutional right to confrontation.
(a) Additional Background
Prior to testifying at trial, Wagner spoke to law enforcement officers on at least two
occasions. First, Wagner spoke briefly with officers over the phone while he was still recovering
in the hospital. Wagner testified that he struggled to recall the specifics of that conversation, adding
that his memory of that time was somewhat “fuzzy” due to the medications he was taking.
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Investigator Chris Milisits confirmed that he conducted a “brief interview” with Wagner over the
phone while Wagner was still in the hospital. Milisits testified that the primary objective was just
to “touch base with [Wagner] to see if he could identify the person that shot him.”
Wagner did not initially share any information about the shooting, and Wagner indicated
to Milisits that he was concerned about his parole being revoked as a result of his involvement in
the shooting. Milisits inquired as to Wagner’s parole status and discovered “nothing in [Wagner’s]
file that was going to send him back to prison.” Milisits informed Wagner of this and Wagner then
identified Wheeler as the person who shot him. On January 11, 2021, Wagner provided a formal
statement identifying Wheeler as the shooter and providing a more detailed account of the incident.
On cross-examination, defense counsel inquired into a number of inconsistencies in
Wagner’s account of events. For example, Wagner’s testimony was somewhat vague as to how he
knew that Wheeler would be at the house on Blue Flame Road that night. Wagner testified that he
“had a pretty good idea of where [Wheeler] would be” and that the house on Blue Flame Road was
“the first place on [his] list.” However, Wagner could not recall whether somebody told him
Wheeler was there. Wagner maintained that even when he pulled up to the house, he did not know
for sure whether Wheeler would be there. However, Wagner’s formal interview apparently
included a statement that somebody told him Wheeler was at the house on Blue Flame Road on
the night in question. While defense counsel repeatedly suggested that someone must have told
Wagner that Wheeler was there, he did not attempt to refresh Wagner’s memory or otherwise
confront him with the prior statement itself.
Thereafter, defense counsel sought to introduce Wagner’s prior inconsistent statement
through the testimony of Milisits. On cross-examination, Milisits confirmed that Wagner had
previously reported learning of Wheeler’s whereabouts from Wheeler himself. The State
immediately objected on hearsay grounds, which objection the court initially sustained. Outside
the presence of the jury, defense counsel argued the statements were admissible for the limited
purpose of impeaching Wagner’s testimony insofar as his prior statement to Milisits was
inconsistent with his testimony at trial. The court took the objection under advisement and recessed
for the weekend.
When the court reconvened, the State clarified that it was objecting on the grounds of
improper impeachment, in that defense counsel was “using a prior statement to impeach . . .
without confronting [Wagner] with the prior statement and without giving him an opportunity to
explain or deny making the prior statement.” The court sustained the State’s objection, concluding
that defense counsel failed to adequately confront Wagner with the prior inconsistent statement
such that it was improper to introduce extrinsic evidence thereof.
Anticipating the State’s objection, defense counsel advised the court that he intended to
pursue a similar line of questioning to highlight an inconsistency in Wagner’s testimony about the
gun. At trial, Wagner specifically testified that the gun he observed at Wheeler’s apartment was a
“nine millimeter Glock,” which he described as “khaki or tan with an extended clip.” On
cross-examination, defense counsel inquired whether Wagner previously told law enforcement
that he could not definitively identify the make and model of the gun. Defense counsel explicitly
referenced Wagner’s formal interview with law enforcement and disclosed the relevant contents
of the prior statement alleged to be inconsistent with Wagner’s testimony. Wagner generally
denied defense counsel’s characterization of the prior statement, but he adopted the underlying
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sentiment that he could not definitively identify the make and model of the gun. With respect to
his prior testimony definitively identifying the make and model of the gun, Wagner clarified, “I
can honestly say I don’t know for sure 100 percent what make and model it is, no. I just know that
it was a tan gun that looked like a Glock 9.”
Defense counsel explained to the court that he intended to ask Milisits about Wagner’s
prior statement in order to impeach Wagner’s specific identification of the gun as a “nine
millimeter Glock.” As expected, the State reiterated the same objection as above, and the court
sustained that objection. The court stated, “It’s my understanding that the witness must deny that
he made the statement and then be given an opportunity to refresh his recollection with that
statement, if he can.”
(b) Analysis
On appeal, Wheeler maintains that the district court’s decision to sustain the State’s
improper impeachment objections violated his constitutional right to confrontation. See, U.S.
Const. amend. VI; Neb. Const. art. 1, § 11. The State counters that this court should not even reach
the merits of Wheeler’s argument because (1) Wheeler failed to adequately brief the issue, and (2)
Wheeler failed to raise a confrontation claim in the district court. We agree with both of the State’s
responses.
As the State points out, it is well-settled that an alleged error must be both specifically
assigned and specifically argued in the brief of the party asserting the error to be considered by an
appellate court. State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019). Moreover, an appellate
court will not consider an issue on appeal that was not presented to or passed upon by the trial
court. Id.Wheeler assigned that the district court “erred by not allowing appellant’s counsel to
impeach certain witnesses with extrinsic evidence.” Brief for appellant at 5. Accordingly, one
might have expected Wheeler to argue that the court misapplied rule 613, which governs the use
of extrinsic evidence to impeach a witness with a prior inconsistent statement. Neb. Rev. Stat.
§ 27-613 (Reissue 2016). However, Wheeler’s argument makes no mention of rule 613 or the use
of extrinsic evidence. Rather, Wheeler’s argument focuses exclusively on the alleged violation of
his constitutional right to confrontation; a claim that was neither presented to nor passed upon by
the district court. For these reasons, we decline to address Wheeler’s second assignment of error.
Nevertheless, because it will be necessary to resolve one of Wheeler’s ineffective
assistance claims, we must briefly address the merits of the alleged error that Wheeler assigned
but did not argue. That is, whether the district court erred in refusing to allow defense counsel to
adduce extrinsic evidence of Wagner’s prior statements.
Rule 613(1) provides that a witness may be examined concerning a prior statement and
“the statement need not be shown or its contents disclosed to him at that time, but on request the
same shall be shown or disclosed to opposing counsel.” § 27-613(1). Rule 613(2) permits the
introduction of extrinsic evidence concerning prior inconsistent statements by a witness, subject
to the limitation that the witness being impeached must be given an opportunity to explain or deny
the prior inconsistent statement, and the opposite party must have the opportunity to interrogate
the witness about the prior inconsistent statement. § 27-613(2); State v. Owens, 257 Neb. 832, 601
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N.W.2d 231 (1999). Further, the statement sought to be impeached cannot be about a collateral or
immaterial matter. State v. Owens, supra.The requirement that a witness sought to be impeached by an alleged prior inconsistent
statement must be afforded an opportunity to explain or deny the alleged prior inconsistent
statement may be met either before or after the introduction of the extrinsic impeaching evidence.
State v. Owens, 8 Neb. App. 109, 589 N.W.2d 867 (1999), abrogated on other grounds, State v.
Owens, 257 Neb. 832, 601 N.W.2d 231 (1999). “However, if counsel chooses to question the
declarant concerning the inconsistent statement before introducing the extrinsic evidence of the
inconsistent statement, and if the declarant admits making the inconsistent statement, counsel may
not introduce extrinsic evidence of the inconsistent statement.” State v. Johnson, 220 Neb. 392,
401, 370 N.W.2d 136, 142 (1985), abrogated on other grounds, State v. Morris, 251 Neb. 23, 554
N.W.2d 627 (1996). “If the witness being impeached admits to the prior inconsistent statement,
then he has been impeached and further extrinsic evidence is neither necessary nor generally
allowed.” Id. (citing Fenner, Competency and Examination of Witnesses Under Article VI of the
Federal Rules of Evidence and the Nebraska Evidence Rules, 9 Creighton L. Rev. 559, 600
(1976)).
In the present case, defense counsel sought to introduce extrinsic evidence of two prior
statements that Wagner made to law enforcement. Taking the two statements in reverse order, we
first conclude the district court did not err in refusing to allow extrinsic evidence of Wagner’s
statement concerning the identification of the gun. Wagner effectively admitted to the prior
statement, clarifying his trial testimony to conform to the relevant contents of his prior statement.
Thus, to the extent Wagner’s prior statement was inconsistent with his testimony at trial, Wagner
impeached himself, and further extrinsic evidence was neither necessary nor generally allowed.
See State v. Johnson, supra.With respect to Wagner’s statement regarding Wheeler’s whereabouts on the night of the
shooting, his prior statement to law enforcement was clearly inconsistent with his testimony, and
it was neither collateral nor immaterial. Defense counsel failed to in any way refer to the prior
statement or disclose its contents to Wagner on cross-examination. Thus, we agree with the district
court that, at the time that defense counsel sought to introduce extrinsic evidence of the prior
statement, Wagner had not yet been afforded an opportunity to explain or deny the same. However,
extrinsic evidence of a prior inconsistent statement for the limited purpose of impeachment may
be introduced either before or after the witness is given the opportunity to explain or deny. See
State v. Owens, 8 Neb. App. 109, 589 N.W.2d 867 (1999), abrogated on other grounds, State v.
Owens, 257 Neb. 832, 601 N.W.2d 231 (1999). Thus, absent the court’s ruling, there was nothing
preventing defense counsel from introducing the statement through Milisits and then recalling
Wagner to lay the foundation necessary to render the statement admissible under rule 613(2). See
State v. Owens, 8 Neb. App. 109, 589 N.W.2d 867 (1999), abrogated on other grounds, State v.
Owens, 257 Neb. 832, 601 N.W.2d 231 (1999) (witness could be recalled after introduction of
extrinsic evidence to explain or deny the alleged prior inconsistent statement).
The present case is distinguishable from State v. Al-Zubaidy, 5 Neb. App. 327, 559 N.W.2d
774 (1997), wherein the trial court similarly precluded extrinsic evidence of a prior inconsistent
statement after the declarant-witness had already testified and been excused. In Al-Zubaidy, the
declarant-witness’ testimony established that she lived out of state and would likely be unavailable
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to explain or deny a prior inconsistent statement after being excused. In that case, this court
concluded it was “apparent” that the witness would not have had an opportunity to explain or deny
the alleged inconsistent prior statement had the impeaching witness been allowed to testify. That
is not the case here. Id. at 339, 559 N.W.2d at 782.
There was nothing in Wagner’s testimony to indicate that he was likely to become
unavailable after testifying in the State’s case-in-chief. To the contrary, the record demonstrates
that Wagner was incarcerated in Lincoln at the time of trial. Thus, defense counsel was free to
make the tactical decision to introduce extrinsic evidence of Wagner’s prior statement before
recalling Wagner to explain or deny that statement. Accordingly, the district court abused its
discretion in refusing to allow Milisits to testify concerning Wagner’s prior inconsistent statement
for the limited purpose of impeachment. However, because the error was harmless beyond a
reasonable doubt, we affirm the result reached by the district court.
In a jury trial of a criminal case, an erroneous evidential ruling results in prejudice to a
defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.
State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999). Where the evidence is cumulative and
there is other competent evidence to support the conviction, the improper admission or exclusion
of evidence is harmless beyond a reasonable doubt. Id. Moreover, the erroneous exclusion of
extrinsic evidence which is only admissible for the limited purpose of impeachment has been found
to be harmless when the credibility of the declarant-witness was otherwise attacked on
cross-examination. See, id. at 841, 601 N.W.2d at 238 (noting that witness’ credibility was
“aggressively attacked” on cross-examination); State v. Johnson, 220 Neb. 392, 402, 370 N.W.2d
136, 143 (1985) (noting that “victim’s credibility had already been attacked extensively” on
cross-examination).
As discussed above, Wheeler’s conviction was supported by sufficient competent evidence
with or without the extrinsic evidence of Wagner’s prior inconsistent statement regarding
Wheeler’s whereabouts on the night of the shooting. Wagner’s credibility was thoroughly attacked
on cross-examination. Defense counsel inquired into various inconsistencies in Wagner’s account
of the events, including Wagner’s lack of memory as to whether or how he knew that Wheeler
would be at the house on Blue Flame Road on the night in question. In closing argument, defense
counsel repeatedly invoked Wagner’s lack of credibility, highlighting Wagner’s criminal record,
drug use, and potential bias. Even the State remarked on some of the inconsistencies in Wagner’s
testimony, also noting Wagner’s history of criminal behavior and drug use. The State encouraged
the jury to weigh the credibility of the witnesses, taking account of “who they are and whether you
should or shouldn’t believe them.” Altogether, we conclude the jury was able to adequately assess
Wagner’s credibility without extrinsic evidence of Wagner’s prior inconsistent statement.
Accordingly, any prejudice which could have resulted from Wheeler’s inability to impeach that
portion of Wagner’s testimony was harmless beyond a reasonable doubt.
3. EXCESSIVE SENTENCE
Wheeler next assigns that the district court erred in imposing an excessive sentence.
Wheeler was convicted of a Class ID felony, which carries a mandatory minimum sentence of 3
years of incarceration and a maximum sentence of 50 years of incarceration. § 28-1206; Neb. Rev.
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Stat. § 28-105 (Reissue 2016). Wheeler was sentenced to 25 to 30 years of incarceration, which is
well within the statutory limits.
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. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). The sentencing court is not limited to any
mathematically applied set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding the defendant’s life. Id.Wheeler argues that the district court failed to account for various mitigating factors, such
as Wheeler’s age, health, and “rehabilitative needs.” Brief for appellant at 21. Wheeler further
argues that the district court failed to give proper weight and consideration to Wheeler’s acquittal
on counts 1 and 2. However, there is no indication from the record that the court ignored relevant
factors or failed to account for Wheeler’s partial acquittal. To the contrary, the record reflects that
the district court properly reviewed and considered the presentence investigation report, including
additional “character letters” submitted on Wheeler’s behalf. Moreover, the court explicitly
acknowledged Wheeler’s acquittal on counts 1 and 2. However, the court also emphasized the
seriousness of the offense in count 3, as well as Wheeler’s “absolute denial” of responsibility and
history of criminal behavior. Upon our review of the record, we cannot say the sentence imposed
by the district court was an abuse of discretion.
4. INEFFECTIVE ASSISTANCE OF COUNSEL
Wheeler raises, through new counsel, five claims of ineffective assistance of trial counsel.
When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant
must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to
the defendant or is apparent from the record. State v. Blake, supra. Otherwise, the ineffective
assistance of trial counsel issue will be procedurally barred. Id. The necessary specificity of
allegations of ineffective assistance of trial counsel on direct appeal for purposes of avoiding
waiver requires, at a minimum, allegations of deficient performance described with enough
particularity for an appellate court to make a determination of whether the claim can be decided
upon the trial record and also for a district court later reviewing a potential petition for
postconviction relief to be able to recognize whether the claim was brought before the appellate
court. Id. Once raised, the appellate court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims; an ineffective assistance of counsel
claim will not be addressed on direct appeal if it requires an evidentiary hearing. Id.Accordingly, we examine Wheeler’s claims and determine first whether the claim was
raised with the requisite particularity. For those claims that were properly raised, we then
determine whether the record is sufficient to address the merits of the claim, reserving the
resolution of any claim that will require an evidentiary hearing. To prevail on the merits of a claim
of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), the defendant must show that his or her counsel’s performance was
deficient and that this deficient performance actually prejudiced the defendant’s defense. State v.
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Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). The record is sufficient to resolve on direct appeal
a claim of ineffective assistance of counsel if the record affirmatively proves or rebuts either
deficiency or prejudice with respect to the defendant’s claims. Id.(a) Failure to Object to Testimony
Wheeler’s first two ineffective assistance claims allege that trial counsel was ineffective
for failing to object to testimony which Wheeler contends was inadmissible evidence of prior bad
acts under rule 404. Neb. Rev. Stat. § 27-404 (Reissue 2016). First, Wheeler challenges trial
counsel’s failure to object to the testimony of both Wagner and Hespen that the gun used in the
shooting was previously seen in Wheeler’s apartment. Second, Wheeler challenges trial counsel’s
failure to object to Wagner’s testimony that Wheeler was generally known to carry a gun. With
respect to both claims, the State counters that the testimony was direct evidence of a crime charged
and thus outside the scope of rule 404. We conclude that Wheeler has preserved his first and second
claims for review, but a determination as to the sufficiency of the record to resolve those claims
requires a discussion of rule 404 and the admissibility of prior bad acts evidence.
Rule 404 provides, in part:
(2) Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he or she acted in conformity therewith. It may
however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
(3) When such evidence is admissible pursuant to this section, in criminal cases
evidence of other crimes, wrongs, or acts of the accused may be offered in evidence by the
prosecution if the prosecution proves to the court by clear and convincing evidence that the
accused committed the crime, wrong, or act. Such proof shall first be made outside the
presence of any jury.
§ 27-404. Rule 404(2), however, does not apply to evidence of a defendant’s other crimes or bad
acts if the evidence is inextricably intertwined with the charged crime. State v. Cullen, 292 Neb.
30, 870 N.W.2d 784 (2015). Other acts under rule 404(2) are acts that are not part of the events
giving rise to the present charges. State v. Salvador Rodriguez, 296 Neb. 950, 898 N.W.2d 333(2017). The Nebraska Supreme Court has characterized evidence that is inextricably intertwined
with a charged crime to be evidence which forms a factual setting and is necessary to present a
coherent picture of the crime. See State v. Cullen, supra.
Wheeler was charged with first degree assault, use of a firearm to commit that assault, and
possession of a firearm by a prohibited person. If the challenged evidence bears directly on an
element of the crimes charged, then the evidence was outside the scope of rule 404 and trial counsel
could not have been ineffective for failing to object on those grounds. If, on the other hand, the
challenged evidence pertains to an entirely separate incident of uncharged criminal conduct, then
a proper objection would have triggered rule 404(2) and, if the State identified a permissible use,
prompted a rule 404(3) hearing outside the presence of the jury.
Wheeler challenges the testimony of Wagner and Hespen in two respects under rule 404.
First, both Wagner and Hespen testified that they had previously observed the gun used in the
shooting on a table in Wheeler’s apartment. The record was not clear as to when this occurred,
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however, Wagner testified that he met Wheeler “right close to Thanksgiving” when Wagner and
Hespen helped Wheeler move furniture out of his apartment. Thus, the earliest that Wagner could
have observed the gun was sometime in late November 2020, roughly 2 weeks prior to the
shooting. Second, Wheeler challenges Wagner’s testimony that Wheeler was “known to carry the
gun” and that “everybody knows [Wheeler] carries a gun.” In both respects, we conclude the
challenged testimony was direct evidence of the charge in count 3 that Wheeler was a prohibited
person in possession of a firearm on or about December 6, 2020.
We begin by acknowledging the authority to the contrary. In State v. Freemont, 284 Neb.
179, 817 N.W.2d 277 (2012), the Supreme Court addressed a similar rule 404 challenge to
testimony that the defendant was seen with a gun “several days or a week” prior to the date of a
shooting for which the defendant was charged with second degree murder, use of a deadly weapon
to commit a felony, and possession of a deadly weapon by a prohibited person. Id. at 192, 817
N.W.2d at 290-91. The court held that the evidence of prior possession was inadmissible under
rule 404. The court reasoned that the State only charged the defendant in relation to the shooting,
and thus, evidence that the defendant possessed the same gun around a week prior to that date was
evidence of an entirely “separate incident” and thus subject to rule 404. State v. Freemont, 284
Neb. 191, 817 N.W.2d at 290.
At first glance, Freemont appears to be dispositive in the present case. Wheeler raises a
rule 404 challenge to evidence that he possessed the gun used in the shooting roughly 2 weeks
prior, and, under Freemont, such possession would likely constitute an entirely separate incident
subject to rule 404. However, Justice Cassel authored a concurring opinion in Freemont to discuss
the doctrine of continuing possession, which was not addressed by the majority in that case. See
State v. Freemont, supra. (Cassel, J., concurring). Justice Cassel reasoned as follows:
Because the State charged Freemont with possession of a deadly weapon by a
prohibited person, it had the burden to prove, as relevant to the facts of this case, that
Freemont possessed a firearm and that he had previously been convicted of a felony. . . .
Evidence of Freemont’s earlier possession is intrinsic to and directly bears on an
element of the charged crime of being a felon in possession of a deadly weapon. . . .
Id. at 208, 817 N.W.2d at 301. Justice Cassel emphasized that the information charged the
defendant with possession “on or about” a specific date, concluding that evidence of possession
about a week prior to that date “is not so removed in time as to lose its temporal connection to the
charged date of possession.” Id. at 212-13, 817 N.W.2d at 303-04. Justice Cassel also noted that
the defendant’s prior possession of a firearm occurred “much closer in time to the charged crimes
than did similar evidence admitted by the federal courts.” Id. at 212, 817 N.W.2d at 303 (citing,
U.S. v. Adams, 604 F.3d 596 (8th Cir. 2010) (evidence that defendant possessed firearm on four
occasions within 1 year prior to charged crimes was not subject to rule 404); U.S. v. Dorsey, 677
F.3d 944 (9th Cir. 2012) (evidence that defendant possessed firearm between 3 and 4 months prior
to charged crimes was not subject to rule 404).
A few years after Freemont, the Supreme Court expressly limited the holding in Freemont,
referring favorably to Justice Cassel’s concurring opinion and federal case law applying the
continuing possession doctrine. See State v. Salvador Rodriguez, 296 Neb. 950, 898 N.W.2d 333(2017). See, also, State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015); U.S. v. Towne, 870 F.2d
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880 (2d Cir. 1989). Under the doctrine of continuing possession, the crime of possession may
extend over a period of time if uninterrupted. State v. Salvador Rodriguez, supra. Absent language
indicating differently, “possession” within a criminal statute contemplates a continuing offense as
opposed to a single incident. Id. There is nothing in the language of § 28-1206 to indicate that the
Legislature intended possession of a firearm by a prohibited person to be a single incident rather
than a continuing offense.
In U.S. v. Towne, supra, the defendant was charged with unlawful possession of a firearm
on a specified date, and the State sought to present evidence that the defendant was in possession
of the same gun on days prior to that date. The defendant challenged that evidence under the federal
equivalent of rule 404. The U.S. Court of Appeals for the Second Circuit held that the evidence
was not “other crimes” evidence because “[t]he continuous possession of the same gun does not
amount to a series of crimes, but rather constitutes a single offense.” U.S. v. Towne, 870 F.2d at
886. The court reasoned that the evidence was not admitted for impermissible propensity purposes,
but, rather, “to show that it was [the defendant] and not someone else who exercised continuous
dominion and control over the pistol.” Id.
Likewise, in the present case, we conclude that the challenged testimony constitutes direct
evidence of a crime charged and was thus outside the scope of rule 404. Wheeler, a person
prohibited from possessing a firearm, was charged with possessing a firearm on or about December
6, 2020. Wagner and Hespen both testified that they witnessed Wheeler in possession of a gun on
that day. Wagner and Hespen further testified that they saw the same gun in Wheeler’s apartment
in the weeks leading up to December 6, and Wagner testified that Wheeler was generally known
to carry a gun around that time. Under the continuing possession doctrine, this testimony was not
impermissible propensity evidence, but, rather, constituted circumstantial evidence that Wheeler
was in possession of a firearm on or about December 6.
The pertinent inference supported by the testimony is not that Wheeler possessed a gun on
an unrelated previous occasion, and thus, had a propensity to possess a gun on or about December
6, 2020. Rather, the inference is that Wheeler possessed the gun used in the shooting in the weeks
leading up to December 6, which bears directly on the likelihood that Wheeler continued to possess
the same gun on or about that day. See State v. Freemont, 284 Neb. 179, 212, 817 N.W.2d 277,
303 (2012) (Cassel, J., concurring) (“the evidence speaks not to [the defendant’s] character, but,
rather, to the likelihood of his possession of a firearm at the time of the charged crimes”).
Accordingly, trial counsel could not have been ineffective for failing to object to this evidence on
rule 404 grounds, and Wheeler’s first and second ineffective assistance claims are refuted by the
record.
(b) Failure to Introduce Phone Records
Wheeler’s third claim of ineffective assistance alleges that trial counsel was ineffective for
failing to introduce Wheeler’s cell phone records to impeach Wagner’s testimony. Specifically,
Wheeler argues that the cell phone records would have contradicted Wagner’s testimony that he
and Wheeler were texting back and forth on the day of the shooting. The State counters that trial
counsel disclosed the substance of those records on cross-examination, such that there was little to
gain by offering the records into evidence. We agree, and we thus conclude that Wheeler’s claim
is refuted by the record.
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Wheeler asserts the phone records would have showed only a single text message between
Wheeler and Wagner during the day of the shooting. Wheeler maintains trial counsel was
ineffective for failing to introduce that evidence to contradict Wagner’s testimony that he and
Wheeler “had been texting back and forth all day.” While trial counsel did not offer the phone
records into evidence, trial counsel specifically cross-examined Wagner regarding that
contradictory evidence, disclosing that portion of the phone records which Wheeler argues was
relevant to impeaching Wagner’s testimony. Thus, Wheeler cannot show prejudice and the record
refutes Wheeler’s claim that counsel was ineffective for failing to introduce Wheeler’s cell phone
records.
(c) Failure to Call Witnesses
Wheeler’s fourth claim of ineffective assistance alleges that trial counsel was ineffective
for failing to call Desiree Allen, Michael Carmen, and Jinny Greer to testify at trial. Each of these
individuals was reportedly present at the residence on Blue Flame Road on the night of the
shooting. We conclude that Wheeler has preserved his fourth claim of ineffective assistance, but
the record is insufficient to resolve the claim on direct appeal.
When alleging ineffective assistance for the failure of counsel to call witnesses, appellate
counsel must give on direct appeal the names or descriptions of the uncalled witnesses forming
the basis of the claim. State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019). However, the appellate
court does not need specific factual allegations as to what the person or persons would have said,
which will not be found in the appellate record. State v. Blake, 310 Neb. 769, 969 N.W.2d 399(2022). But see, State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018); State v. Ash, 293 Neb. 583,
878 N.W.2d 569 (2016).
We recently discussed an apparent inconsistency between Blake and the earlier cases of
Hill and Ash with regard to the level of specificity required on direct appeal to challenge trial
counsel’s failure to call witnesses. See State v. Roebuck, 31 Neb. App. 67, 976 N.W.2d 218 (2022).
As we did in Roebuck, we apply the rule clearly articulated in Blake; Hill, and Ash notwithstanding.
Accordingly, we conclude that Wheeler has preserved his claim of ineffective assistance for failing
to call the three named witnesses above. However, the record is insufficient to resolve the claim
on direct appeal, as the nature of the omitted testimony is not found in the appellate record.
(d) Failure to Properly Impeach Wagner’s Testimony
Finally, Wheeler claims that trial counsel was ineffective for failing to properly impeach
Wagner’s testimony with his prior statements discussed in section 2 above. Essentially, Wheeler
raises this claim as an alternative to his second assignment of error regarding trial counsel’s attempt
to impeach Wagner’s testimony through extrinsic evidence of prior inconsistent statements.
Wheeler maintains that if the district court was correct to sustain the State’s improper impeachment
objections, then the improper impeachment itself amounted to ineffective assistance of counsel.
We conclude that Wheeler’s claim is refuted by the record.
With respect to Wagner’s statement that he could not definitively identify the make and
model of the gun, Wagner effectively admitted to that statement, revising his trial testimony to
clarify that he could not definitively identify the make and model of the gun. Because Wagner
admitted to the prior statement, he was impeached and extrinsic evidence of the prior statement
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was neither necessary nor generally allowable. See State v. Johnson, 220 Neb. 392, 370 N.W.2d
136 (1985), abrogated on other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996).
Accordingly, trial counsel could not have been ineffective for failing to adduce extrinsic evidence
of Wagner’s prior statement regarding the make and model of the gun.
With respect to Wagner’s statement regarding Wheeler’s whereabouts on the night of the
shooting, as discussed above, trial counsel’s decision to introduce extrinsic evidence of the
statement prior to giving Wagner the opportunity to explain or deny was a reasonable strategic
decision. See State v. Newman, 310 Neb. 463, 966 N.W.2d 860 (2021) (strategic decisions made
by trial counsel will not be second-guessed so long as those decisions are reasonable). The district
court’s erroneous ruling precluded trial counsel from further attempts to properly impeach
Wagner’s testimony through extrinsic evidence of the prior statement, and trial counsel could not
have been ineffective for failing to do something which the court refused to allow. Accordingly,
Wheeler’s fifth and final ineffective assistance claim is refuted by the record.
VI. CONCLUSION
For the foregoing reasons, we affirm Wheeler’s conviction and sentence in all respects. We
further conclude that Wheeler’s first, second, third, and fifth claims of ineffective assistance of
counsel are refuted by the record. With respect to Wheeler’s fourth ineffective assistance claim,
we conclude the claim is refuted by the record insofar as it relates to Allen and Carmen, and, with
respect to Greer, Wheeler has preserved the claim but the record is insufficient to resolve it on
direct appeal.
AFFIRMED.
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