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State v. Sherrod

Court of Appeals of Nebraska

July 30, 2019

State of Nebraska, appellee,
v.
Jaquez S. Sherrod, appellant.

         1. 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.

         2. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact.

         3. ___: ___. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error.

         4. Controlled Substances. A person possesses a controlled substance when he or she knows of the nature or character of the substance and of its presence and has dominion or control over it.

         5. Controlled Substances: Evidence: Circumstantial Evidence: Proof. Possession can be either actual or constructive, and constructive possession of an illegal substance may be proved by direct or circumstantial evidence.

         6. Controlled Substances. Mere presence at a place where a controlled substance is found is not sufficient to show constructive possession.

         7. Evidence. The holder of a key, be it to a dwelling, vehicle, or motel room, has constructive possession of the contents therein.

         8. Effectiveness of Counsel: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the [27 Neb.App. 436] 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.

         9. Effectiveness of Counsel: Proof. 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.

         10. Effectiveness of Counsel: Records: Appeal and Error. A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. The determining factor is whether the record is sufficient to adequately review the question.

         11. Effectiveness of Counsel: Proof: Appeal and Error. When an ineffective assistance of counsel claim 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.

         12. ___: ___: ___. General allegations that trial counsel performed deficiently or that trial counsel was ineffective are insufficient to raise an ineffective assistance claim on direct appeal and thereby preserve the issue for later review.

         13. Effectiveness of Counsel: Records: Appeal and Error. An ineffective assistance of counsel claim made on direct appeal can be found to be without merit if the record establishes that trial counsel's performance was not deficient or that the appellant could not establish prejudice.

         14. Trial: Attorneys at Law. Trial counsel is afforded due deference to formulate trial strategy and tactics.

         15. Effectiveness of Counsel: Presumptions: Appeal and Error. There is a strong presumption that counsel acted reasonably, and an appellate court will not second-guess reasonable strategic decisions.

          Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed.

          Thomas C. Riley, Douglas County Public Defender, and Abbi R. Romshek for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

          Riedmann, Arterburn, and Welch, Judges.

         [27 Neb.App. 437] RLEDMANN, JUDGE

         INTRODUCTION

         Jaquez S. Sherrod was convicted in the district court for Douglas County of manufacturing, distributing, or possession with intent to distribute 10 to 28 grams of crack cocaine with a firearm and possession of a deadly weapon (firearm) by a prohibited person. On appeal, he alleges that the evidence was insufficient to support the convictions and that he received ineffective assistance of counsel in four respects. We conclude that the record on direct appeal is sufficient to address only ...


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