Constitutional Law: Search and Seizure: Motions to
Suppress: Appeal and Error. When 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
Mental Competency: Appeal and Error. The
trial court's determination of competency will not be
disturbed unless there is insufficient evidence to support
Convictions: Evidence: Appeal and Error. 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. 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.
Effectiveness of Counsel: Constitutional Law:
Statutes: Records: Appeal and Error. Whether a claim
of ineffective assistance of trial counsel can be determined
on direct appeal presents a question of law, which turns upon
the sufficiency of the record to address the claim without an
evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
Effectiveness of Counsel: Appeal and Error.
An appellate court determines as a matter of law whether the
record conclusively shows that (1) a defense counsel's
performance was deficient or (2) a defendant [302 Neb. 407]
was or was not prejudiced by a defense counsel's alleged
deficient performance. 6. Sentences: Appeal and
Error. An appellate court will not disturb a
sentence imposed within the statutory limits absent an abuse
of discretion by the trial court.
Constitutional Law: Search and Seizure. Both
the Fourth Amendment to the U.S. Constitution and article I,
§ 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures.
___:. Under the Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution, the
ultimate touchstone is one of reasonableness.
Constitutional Law: Search and Seizure: Warrantless
Searches. Pursuant to the Fourth Amendment to the
U.S. Constitution and article I, § 7, of the Nebraska
Constitution, searches and seizures must not be unreasonable,
and searches without a valid warrant are per se unreasonable,
subject only to a few specifically established and
Constitutional Law: Investigative Stops: Search and
Seizure: Probable Cause. The Fourth Amendment
guarantee of the right to be free of unreasonable searches
and seizures requires that an arrest be based upon probable
cause and limits investigatory stops to those made upon an
articulable suspicion of criminal activity.
Police Officers and Sheriffs: Investigative Stops:
Probable Cause. In determining whether there is
reasonable suspicion for an officer to make an investigatory
stop, the totality of the circumstances must be taken into
Warrantless Searches: Probable Cause: Police Officers
and Sheriffs. Probable cause to support a
warrantless arrest exists only if law enforcement has
knowledge at the time of the arrest, based on information
that is reasonably trustworthy under the circumstances, which
would cause a reasonably cautious person to believe that a
suspect has committed or is committing a crime.
Warrantless Searches. The warrantless search
exceptions recognized by the Nebraska Supreme Court include:
(1) searches undertaken with consent, (2) searches under
exigent circumstances, (3) inventory searches, (4) searches
of evidence in plain view, and (5) searches incident to a
Police Officers and Sheriffs: Search and Seizure:
Arrests. After an arrest is made, the arresting
officer may search an arrestee's person to remove any
weapons that he or she might use to resist arrest or to
effect his or her escape, or to seize any evidence on the
arrestee's person in order to prevent the concealment or
destruction of such evidence.
Neb. 408] 15. Arrests: Search and
Seizure. The justification for a search incident to
a lawful arrest is absent if a search is remote in time or
place from the arrest.
___: ___ . Inventory searches after an arrest are
permissible. 17. Search and Seizure. The
propriety of an inventory search is judged by a standard of
reasonableness, and such search must be performed in
accordance with standard operating procedures.
. Inventory searches must be conducted pursuant to an
established routine, because an inventory search must not be
a ruse for a general rummaging in order to discover
Search and Seizure: Police Officers and
Sheriffs. Inventory searches are considered
reasonable because they serve at least three needs unrelated
to criminal investigation: (1) to protect the owner's
property while it remains in police custody, (2) to protect
police against claims that they lost or stole the property,
and (3) to protect police from potential danger.
Motions to Suppress: Trial: Pretrial Procedure:
Appeal and Error. When a motion to suppress is
denied pretrial and again during trial on a renewed
objection, an appellate court considers all evidence, both
from the trial and from the hearing on the motion to
Trial: Testimony: Police Officers and Sheriffs:
Search and Seizure. Testimony of police officers may
be used to establish the existence of a standard procedure
and that an inventory search was conducted in accordance with
Search and Seizure: Evidence. Evidence which
would have been discovered in the course of a lawful
inventory search can be admissible under the inevitable
Mental Competency: Trial: Sentences: Time. A
trial court can detemine a defendant's competency after
trial but prior to sentencing, and it is the obligation of
the court to do so.
Trial: Pleas: Mental Competency. A person is
competent to plead or stand trial if he or she has the
capacity to understand the nature and object of the
proceedings against him or her, to comprehend his or her own
condition in reference to such proceedings, and to make a
Courts: Trial: Mental Competency. The
question of competency to stand trial is one of fact to be
determined by the court, and the means employed in resolving
the question are discretionary with the court.
Robbery: Words and Phrases. To find the
element of taking "by putting in fear" under the
robbery statute, Neb. Rev. Stat. § 28-324 (Reissue
2016), the finder of fact must determine from the context
established by the evidence whether the defendant's
conduct would have placed a reasonable person in fear.
Neb. 409] 27. Effectiveness of Counsel:
Postconviction: Appeal and Error. When a
defendant's trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct
appeal any issue of trial counsel's ineffective
performance which is known to the defendant or is apparent
from the record, otherwise, the issue will be procedurally
barred in a subsequent postconviction proceeding.
Effectiveness of Counsel: Postconviction: Records:
Appeal and Error. An ineffective assistance of
counsel claim is raised on direct appeal when the claim
alleges deficient performance with enough particularity for
(1) an appellate court to make a determination of whether the
claim can be decided upon the trial record and (2) a district
court later reviewing a petition for postconviction relief to
recognize whether the claim was brought before the appellate
Effectiveness of Counsel: Records: Appeal and
Error. The fact that an ineffective assistance of
counsel claim is raised on direct appeal does not necessarily
mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the
Sentences: Appeal and Error. Where a
sentence imposed within the statutory limits is alleged on
appeal to be excessive, the appellate court must determine
whether a sentencing court abused its discretion in
considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
Sentences. In determining a sentence to be
imposed, relevant factors customarily considered and applied
are 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.
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.
from the District Court for Douglas County: Shelly R.
Bartling, of Bartling Law Offices, PC, L.L.O., for appellant.
Douglas J. Peterson, Attorney General, Nathan A. Liss, and,
on brief, Joe Meyer for appellee.
Neb. 410] Heavican, C.J., Miller-Lerman, Cassel, Stacy,
Funke, Papik, and Freudenberg, JJ.
A. Garcia was convicted and sentenced for robbery in the
district court for Douglas County. Garcia appeals and claims
that the district court erred when it admitted into evidence
a note that was found in what he asserts was an improper
search of his person and when it determined that he was
competent to stand trial and for sentencing. He also claims
that there was not sufficient evidence to support his
conviction, that his trial counsel provided ineffective
assistance, and that the court imposed an excessive sentence.
We affirm Garcia's conviction and sentence.
mid-afternoon of October 27, 2015, Brandon Ruser was working
as a teller at a bank in Omaha, Nebraska, when a man Ruser
would identify at trial as Garcia approached him. Garcia
handed Ruser a note that read, "THIS IS A ROBBERY PUT
THE MONEY ON THE COUNTER." Ruser testified at trial that
when he saw the note, he "[f]roze" out of
"[f]ear, panic." Ruser reread the note to be sure
he had read it correctly. Thereafter, in accordance with the
protocol he had learned in training, Ruser collected the cash
that was in his drawer, placed it on the counter, and backed
away. After Ruser put the cash on the counter, Garcia picked
up the note, put it in his pocket, and left the bank with the
cash. It was later determined that $3, 579 had been taken
from the bank.
Garcia left the bank, Ruser reported to his coworkers what
had happened. Ruser looked outside and saw Garcia get into
the front passenger seat of a black Toyota RAV4 that was
parked in the bank's parking lot. Ruser could not
see the driver well, but he testified the driver
"appeared to be a woman. I just saw longer hair."
The vehicle slowly backed up and drove [302 Neb. 411] away in
a manner that Ruser described as "pretty much as if
nothing had happened."
officers investigating the robbery learned from witnesses the
license plate number for the black Toyota in which Garcia was
seen leaving the bank. Using the license plate number,
officers learned that the vehicle was registered to Kelli
Allison. They went to the address listed for Allison on
vehicle license records, and there, they spoke with Allison.
Garcia was the father of Allison's two children, and she
had had an "on-again-off-again" relationship with
him over the years. In October 2015, they were not in an
intimate relationship and were not living together, but they
were friends, and she was helping him by paying the rent for
a motel where he was staying.
told police that earlier in the day on October 27, 2015, she
had helped Garcia by driving him to run some errands. As the
final errand, Garcia asked Allison to take him to a local
bank to cash a check. Allison waited in the parking lot while
Garcia went into the bank. He was inside for 5 to 10 minutes
before he came ...