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State v. Warrack

Court of Appeals of Nebraska

January 7, 2014

State of Nebraska, appellee,
v.
John T. Warrack, appellant.

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Appeal from the District Court for Lancaster County: KAREN B. FLOWERS, Judge.

Affirmed.

Michelle M. Mitchell, of Mitchell Law Office, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

Syllabus

1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

2. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, ยง 7, of the Nebraska Constitution protect individuals against unreasonable searches and seizures by the government. These constitutional provisions do not protect citizens from all governmental intrusion, but only from unreasonable intrusions.

3. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications.

4. Constitutional Law: Search and Seizure: Words and Phrases. Although every trespass, by definition, invades someone's right of possession, not every trespass violates the Fourth Amendment.

[21 Neb.App. 605] 5. Constitutional Law: Search and Seizure. The Fourth Amendment protects people, not places.

6. Constitutional Law: Search and Seizure. To determine whether a person has an interest protected by the Fourth Amendment, one must question whether the person has a legitimate expectation of privacy in the invaded space.

7. Constitutional Law: Search and Seizure. A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable.

8. Police Officers and Sheriffs: Warrants. A police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do.

9. Search and Seizure: Streets and Sidewalks. Our society does not reasonably expect a sidewalk leading to one's front door to be private in the absence of evidence to the contrary.

10. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court's conclusions with regard to evidentiary foundation and witness qualification for an abuse of discretion.

11. Convictions: Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination

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thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.

12. Convictions: Evidence: Appeal and Error. The relevant question for an appellate court in reviewing a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

13. Aiding and Abetting: Proof. Aiding and abetting requires some participation in a criminal act which must be evidenced by some word, act, or deed, and mere encouragement or assistance is sufficient to make one an aider or abettor; however, no particular acts are necessary, nor is it necessary that the defendant take physical part in the commission of the crime or that there was an express agreement to commit the crime.

14. Aiding and Abetting: Proof. Evidence of mere presence, acquiescence, or silence is not enough to sustain the State's burden of proving guilt under an aiding and abetting theory.

15. Aiding and Abetting: Intent: Liability. When a crime requires the existence of a particular intent, an alleged aider or abettor can be held criminally liable as a principal if it is shown that the aider and abettor knew that the perpetrator of the act possessed the required intent or that the aider and abettor himself or herself possessed such.

16. Criminal Law: Intent. The question whether the defendant had the required criminal intent is a fact question for the jury.

17. Criminal Law: Intent. A direct expression of intention by the actor is not required in determining criminal intent, because the intent with which an act is committed involves a mental process and intent may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.

18. Criminal Attempt. Whether a defendant's conduct constitutes a substantial step toward the commission of a particular crime and is an attempt is generally a question of fact.

[21 Neb.App. 606] 19. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. An appellate court may address the two prongs of this test, deficient performance and prejudice, in either order.

20. Criminal Law: Effectiveness of Counsel. A trial counsel's performance was deficient if it did not equal that of a lawyer with ordinary training and skill in criminal law.

21. Effectiveness of Counsel: Appeal and Error. In addressing the " prejudice" component of the test to determine ineffective assistance of counsel, an appellate court focuses on whether a trial counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.

22. Effectiveness of Counsel: Proof. To show prejudice in an ineffective assistance of counsel claim, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

23. Proof: Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

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24. Effectiveness of Counsel: Proof: Appeal and Error. When an appellant does not allege both prongs of an ineffective assistance of counsel claim, deficient performance and prejudice, resolution of his or her assertions of ineffective assistance of counsel hinges not on the adequacy of the record before the appellate court, but on his or her failure to provide the appellate court with sufficient allegations of ineffective assistance of counsel.

25. Effectiveness of Counsel: Proof: Appeal and Error. When an appellant does not sufficiently allege his or her ineffective assistance of counsel claims, an appellate court is constrained to find that the assertions of ineffective assistance of counsel are without merit.

Riedmann, Judge.

I. INTRODUCTION

John T. Warrack appeals from his convictions in the district court for Lancaster County on aiding and abetting delivery of methamphetamine within 1,000 feet of a school and attempted delivery of methamphetamine. He argues that the district [21 Neb.App. 607]court erred in failing to grant his motion to suppress, that his foundational objection to certain testimony should have been sustained, that the evidence was insufficient to sustain the ...


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