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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. LOWMAN

Cite as 308 Neb. 482

State of Nebraska, appellee, v. Theardise 

K. Lowman, Jr., appellant.

___ N.W.2d ___

Filed February 26, 2021. No. S-20-240.

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. 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.

3. 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.

4. Effectiveness of Counsel: Appeal and Error. 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/21/2021 08:10 AM CDT
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STATE v. LOWMAN

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5. Pretrial Procedure: Trial: Evidence: Appeal and Error. Where there 

has been a pretrial ruling regarding the admissibility of evidence, a party 

must make a timely and specific objection to the evidence when it is 

offered at trial in order to preserve any error for appellate review.

6. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error.

The failure to object to evidence at trial, even though the evidence was 

the subject of a previous motion to suppress, waives the objection, and 

a party will not be heard to complain of the alleged error on appeal.

7. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on 

some other ground not specified at trial.

8. Constitutional Law: Police Officers and Sheriffs: Search and 

Seizure. The first tier of police-citizen encounters involves no restraint 

of the liberty of the citizen involved, but, rather, the voluntary cooperation of the citizen is elicited through noncoercive questioning. This type 

of contact does not rise to the level of a seizure and therefore is outside 

the realm of Fourth Amendment protection.

9. Constitutional Law: Criminal Law: Police Officers and Sheriffs: 

Investigative Stops: Search and Seizure: Appeal and Error. The second tier of police-citizen encounters, the investigatory stop, as defined 

by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 

20 L. Ed. 2d 889 (1968), is limited to brief, nonintrusive detention during a frisk for weapons or preliminary questioning. This type of encounter is considered a seizure sufficient to invoke Fourth Amendment safeguards, but because of its less intrusive character requires only that the 

stopping officer have specific and articulable facts sufficient to give rise 

to reasonable suspicion that a person has committed or is committing 

a crime.

10. Constitutional Law: Criminal Law: Police Officers and Sheriffs: 

Arrests: Search and Seizure: Probable Cause. The third type of 

police-citizen encounters, arrests, is characterized by highly intrusive 

or lengthy search or detention. The Fourth Amendment requires that an 

arrest be justified by probable cause to believe that a person has committed or is committing a crime.

11. Constitutional Law: Search and Seizure. A seizure in the Fourth 

Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he 

or she was not free to leave.

12. Police Officers and Sheriffs: Search and Seizure. A seizure does not 

occur simply because a law enforcement officer approaches an individual and asks a few questions or requests permission to search an area, 

provided the officer does not indicate that compliance with his or her 

request is required.
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STATE v. LOWMAN

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13. Police Officers and Sheriffs: Investigative Stops: Probable Cause.

Whether a police officer has a reasonable suspicion based on sufficient 

articulable facts depends on the totality of the circumstances and must 

be determined on a case-by-case basis.

14. Police Officers and Sheriffs: Probable Cause. In determining whether 

a police officer acted reasonably, it is not the officer’s inchoate or unparticularized suspicion or hunch that will be given due weight, but the 

specific reasonable inferences which the officer is entitled to draw from 

the facts in light of the officer’s experience.

15. Constitutional Law: Warrantless Searches: Search and Seizure.

Warrantless searches and seizures are per se unreasonable under the 

Fourth Amendment, subject to a few established and well-delineated 

exceptions.

16. Warrantless Searches. The warrantless search exceptions Nebraska has 

recognized 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 valid arrest.

17. Warrantless Searches: Motor Vehicles. Nebraska has recognized that 

among the established exceptions to the warrant requirement is the automobile exception.

18. Weapons: Motor Vehicles: Words and Phrases. A weapon is concealed on or about the person if it is concealed in such proximity to the 

driver of an automobile as to be convenient of access and within immediate physical reach.

19. Effectiveness of Counsel: Proof: Words and Phrases. Generally, to 

prevail on 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.

20. Effectiveness of Counsel: Postconviction: Records: 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.

21. Effectiveness of Counsel: 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 on direct appeal.

22. ____: ____. Assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient 

performance.
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23. Effectiveness of Counsel: Presumptions. The entire analysis of a claim 

of ineffective assistance of counsel should be viewed with a strong presumption that counsel’s actions were reasonable.

24. Trial: Effectiveness of Counsel: Appeal and Error. Trial counsel is 

afforded due deference to formulate trial strategy and tactics, and an 

appellate court will not second-guess trial counsel’s reasonable strategic 

tactics when reviewing claims of ineffective assistance of counsel.

Appeal from the District Court for Sarpy County: Stefanie 

A. Martinez, Judge. Affirmed.

Gregory A. Pivovar for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

Theardise K. Lowman, Jr., appeals from convictions, pursuant to a jury verdict, for possession of a controlled substance 

and two counts of carrying a concealed weapon. He argues 

that the district court erred in overruling his motion to suppress evidence, that the evidence regarding a machete in his 

vehicle was insufficient to convict him of carrying a concealed 

weapon, and that he received ineffective assistance of counsel. 

Finding no merit to any of his claims, we affirm the district 

court’s judgment.

BACKGROUND

Facts

On April 8, 2019, at approximately 5:04 a.m., Officer James 

Murray was on duty and patrolling in the area of a carwash. 

The carwash was open at the time, but signs posted on the 

building prohibit loitering. Murray observed a vehicle backed 

into one of the wash bays. He believed a person was sitting 

in the driver’s seat, and he did not see anybody outside of the 
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vehicle. Murray parked his cruiser and watched to see if the 

occupant would wash the vehicle or leave.

After 5 minutes of not seeing or hearing activity, Murray 

approached the vehicle. He noticed that the vehicle and the 

concrete floor were dry. As Murray approached the passenger’s side of the vehicle, Lowman started to leave the vehicle. 

Murray asked if Lowman would move to the front of the 

vehicle and speak with Murray, and Lowman agreed to do so. 

Murray looked quickly inside the vehicle before speaking with 

Lowman. Murray observed a car stereo on the front passenger’s seat with numerous wires protruding from the back. He 

also observed what appeared to be a metal pipe—which could 

be used for smoking controlled substances—sticking between 

the center console and the driver’s seat. Murray noticed that 

Lowman was holding a torch-style lighter.

Lowman told Murray that he had been visiting a friend 

in the area and chose the carwash to “do some thinking 

and sort through some things.” Lowman stated that he had 

been at the carwash for 1 to 2 hours. Murray noticed that 

Lowman was “fidgety with his hands,” moving around a bit 

on his feet, speaking with a rapid speech pattern, and speaking at great length when answering simple questions. Murray 

suspected that Lowman had engaged in drug use at the carwash. Murray asked whether Lowman had any weapons, and 

Lowman answered that he did not have a weapon on his person but volunteered that he had a machete inside the vehicle, 

“tucked down by the center console.” Murray asked dispatch to 

send another officer.

After backup arrived, Murray informed Lowman that he was 

being detained and that Lowman and his vehicle were going 

to be searched. Murray located a black zippered bag attached 

to Lowman’s waistband which contained a digital scale, a 

weight used for “zeroing out” the scale, unused jewelers’ bags 

that are commonly used for storing controlled substances, 

and two jewelers’ bags that contained an off-white crystalline 

substance which appeared to be methamphetamine. A search 
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of Lowman’s vehicle uncovered a machete, a pair of brass 

knuckles in the center console, and a black eyeglass case that 

contained a broken glass methamphetamine pipe. An officer 

testified that he could see the machete’s handle “sticking out 

from in between the passenger’s seat.”

The State charged Lowman with possession of methamphetamine, carrying a concealed weapon (two counts), and possession of drug paraphernalia.

Motion to Suppress

In September 2019, Lowman filed a motion to suppress all 

evidence obtained by the police as a result of the detention, 

arrest, questioning, and search of Lowman along with the 

search of his vehicle. Lowman alleged that there was no reasonable suspicion or probable cause to search him or his vehicle 

and that he was questioned in violation of his Miranda rights. 

The motion was set to be heard on September 27, but Lowman 

did not appear for the hearing. Lowman’s counsel withdrew the 

motion. In October, Lowman filed another motion to suppress, 

which contained the same allegations as the earlier motion. It 

was heard the day before trial was set to begin.

The court overruled the motion to suppress. It found that 

Murray had reasonable suspicion to conduct the initial stop 

of Lowman. The court found that Lowman was not using the 

carwash for its intended purpose, that signs were posted prohibiting loitering, and that criminal activity had occurred there 

previously. It further found that Lowman voluntarily agreed 

to speak with Murray and that Lowman admitted to smoking marijuana in the past and to having a machete concealed 

in his vehicle. The court stated that Murray’s observation of 

the torch-style lighter and an object appearing to be something in which suspects can hide controlled substances, along 

with Lowman’s behavior, nonsensical answers, and change in 

demeanor when asked if he had smoked methamphetamine, 

contributed to Murray’s determination of probable cause for 

arrest. Although Lowman was not advised of his Miranda
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rights, the court noted that no questioning occurred after arrest. 

The court agreed that Murray had probable cause to arrest 

Lowman; accordingly, it found no Fourth Amendment violation when Murray searched Lowman pursuant to that arrest.

Trial

The court conducted a jury trial. Prior to the introduction 

of evidence, Lowman’s counsel stated, “I do want to renew 

my motion to suppress the detention, arrest, questioning, and 

search of my client as well as the search of my client’s vehicle 

. . . and essentially just renew the motion to suppress that I 

refiled with the Court that was just ruled on yesterday.” The 

court stated: “Okay, so that motion will be overruled, but I 

assume that you’re renewing your motion for purposes of 

appeal . . . should it get there. So, that issue will be preserved.” 

On many—but not all—occasions, Lowman objected based 

on the motion to suppress when the State offered exhibits 

into evidence.

The jury returned a verdict of guilty as to possession of 

a controlled substance and as to both counts of carrying a 

concealed weapon, but not guilty as to the drug paraphernalia 

charge. The court subsequently placed Lowman on probation 

for 2 years.

Lowman promptly appealed, and we moved this case to 

our docket. 1

ASSIGNMENTS OF ERROR

Lowman assigns two errors related to the evidence. He 

alleges that the court erred in overruling his motion to suppress evidence and that the evidence was insufficient to support 

the verdict.

Lowman also assigns that his trial counsel provided ineffective assistance. One assignment alleges, “The defendant 

received ineffective assistance of counsel when defendant’s 

counsel filed a last minute motion to suppress and was 

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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ill-prepared and was unable to brief the issues for the court.” 

The other alleges, “The defendant received ineffective assistance of counsel when despite the urgings of the defendant[,] 

counsel would not call witnesses who would have provided 

corroboration that the defendant was in the area of the car wash 

for some time and had a lawful purpose for being there.”

STANDARD OF REVIEW

[1] 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

[2] 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. 3

[3,4] 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. 4 In reviewing claims of ineffective assistance 

2 State v. Briggs, ante p. 84, 953 N.W.2d 41 (2021).

3 State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020).

4 State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020).
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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. 5

ANALYSIS

Motion to Suppress

We start by addressing the State’s waiver argument. The 

State contends that Lowman waived his suppression claim to 

some of the evidence—specifically, those items found as a 

result of the search of his person—when he failed to renew 

an objection to that evidence based on his motion to suppress. 

We agree.

[5-7] Where there has been a pretrial ruling regarding the 

admissibility of evidence, a party must make a timely and 

specific objection to the evidence when it is offered at trial in 

order to preserve any error for appellate review. 6 The failure to 

object to evidence at trial, even though the evidence was the 

subject of a previous motion to suppress, waives the objection, 

and a party will not be heard to complain of the alleged error 

on appeal. 7 Furthermore, an objection, based on a specific 

ground and properly overruled, does not preserve a question for appellate review on some other ground not specified 

at trial. 8

At numerous times during the trial, Lowman’s counsel objected and renewed the motion to suppress when the 

State offered exhibits into evidence. However, counsel did 

not impose an objection to specifically renew the motion to 

5 State v. Lang, 305 Neb. 726, 942 N.W.2d 388 (2020), cert. denied ___ 

U.S. ___, 141 S. Ct. 415, 208 L. Ed. 2d 119.

6 State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

7 Id.

8 Id.
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suppress when the State offered into evidence the digital scale, 

the torch-style lighter, bags containing the white crystalline 

substance, and the weight contained in the black bag found 

on Lowman. Instead, Lowman’s counsel imposed objections 

based on such matters as foundation, authentication, and chain 

of custody. Nor did counsel renew an objection based on the 

motion to suppress when a forensic chemist testified that the 

bags contained methamphetamine. The objection and renewal 

of the motion to suppress at the beginning of trial did not preserve the issue for review when no objection was made during 

trial to the receipt of items of evidence found during a search. 

Accordingly, we conclude Lowman failed to preserve the suppression issue with regard to the evidence found during the 

search of his person.

Before analyzing Lowman’s interactions with law enforcement, we recount the three tiers of police-citizen encounters 

under Nebraska law and the law regarding seizures in the context of the Fourth Amendment.

[8] The first tier of police-citizen encounters involves no 

restraint of the liberty of the citizen involved, but, rather, 

the voluntary cooperation of the citizen is elicited through 

noncoercive questioning. 9 This type of contact does not rise 

to the level of a seizure and therefore is outside the realm of 

Fourth Amendment protection. 10

[9] The second tier, the investigatory stop, as defined by 

the U.S. Supreme Court in Terry v. Ohio,

 11 is limited to 

brief, nonintrusive detention during a frisk for weapons or 

preliminary questioning. 12 This type of encounter is considered a seizure sufficient to invoke Fourth Amendment safeguards, but because of its less intrusive character requires only 

that the stopping officer have specific and articulable facts 

9 State v. Saitta, 306 Neb. 499, 945 N.W.2d 888 (2020).

10 Id.

11 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

12 See State v. Saitta, supra note 9.
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sufficient to give rise to reasonable suspicion that a person has 

committed or is committing a crime. 13

[10] The third type of police-citizen encounters, arrests, is 

characterized by highly intrusive or lengthy search or detention. 14 The Fourth Amendment requires that an arrest be justified by probable cause to believe that a person has committed 

or is committing a crime. 15

[11,12] Plainly, not every police-citizen encounter rises to 

the level of a seizure. A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances surrounding 

the incident, a reasonable person would have believed that he 

or she was not free to leave. 16 In addition to situations where 

an officer directly tells a suspect that he or she is not free to go, 

circumstances indicative of a seizure may include the threatening presence of several officers, the display of a weapon by an 

officer, some physical touching of the citizen’s person, or the 

use of language or tone of voice indicating the compliance with 

the officer’s request might be compelled. 17 A seizure does not 

occur simply because a law enforcement officer approaches an 

individual and asks a few questions or requests permission to 

search an area, provided the officer does not indicate that compliance with his or her request is required. 18

We first address Lowman’s initial encounter with Murray. 

Lowman claims the initial approach was unjustified and 

unnecessary because he was in a place open to the public and 

Murray saw no illegal activity. The State responds that no 

level of suspicion was needed, because the initial contact was 

a consensual encounter rather than a Terry stop. We agree with 

the State.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.

18 State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).
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The interaction started with noncoercive questioning. 

Murray did not activate his cruiser’s overhead lights or sirens 

prior to approaching Lowman’s vehicle on foot. As Murray 

approached, Lowman began to exit his vehicle. Murray did 

not direct Lowman to do so. Murray did not display a weapon 

or show coercive authority. His communication with Lowman 

was casual, rather than authoritative. We conclude that this 

interaction amounted to a first-tier police-citizen encounter, and thus, it was outside the protections of the Fourth 

Amendment.

[13,14] The encounter developed into a tier-two investigatory stop when Murray advised Lowman that he was being 

detained. An investigatory stop of a person requires that the 

stopping officer have specific and articulable facts sufficient 

to give rise to reasonable suspicion that a person has committed or is committing a crime. 19 Whether a police officer 

has a reasonable suspicion based on sufficient articulable 

facts depends on the totality of the circumstances and must be 

determined on a case-by-case basis. 20 In determining whether 

a police officer acted reasonably, it is not the officer’s inchoate or unparticularized suspicion or hunch that will be given 

due weight, but the specific reasonable inferences which the 

officer is entitled to draw from the facts in light of the officer’s experience. 21

Murray had reasonable suspicion to believe a crime had 

occurred based on the totality of the circumstances. In addition to observing Lowman’s loitering, Murray observed in 

Lowman’s vehicle a car stereo with wires extending out on 

the passenger seat and a metal pipe protruding from the space 

between the driver’s seat and the center console. Based on 

Murray’s training and experience, he believed the pipe, along 

with the torch-style lighter held by Lowman, could be used 

19 State v. Saitta, supra note 9.

20 Id.

21 Id.
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for smoking controlled substances. Further, Lowman admitted to being a marijuana user, was fidgety, spoke rapidly, and 

provided some answers that did not make sense. He also admitted to having a machete “tucked down” in his vehicle, which 

Murray believed to constitute a concealed weapon. Murray had 

a reasonable suspicion based on specific and articulable facts 

that Lowman had committed a crime.

We next turn to the warrantless search of Lowman’s vehicle. 

First, we recall the governing law. Then, we apply it to the 

facts presented here.

[15-17] Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject to a few established and well-delineated exceptions. 22 The warrantless search 

exceptions Nebraska has recognized 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 valid arrest. 23 This 

court has recognized that among the established exceptions 

to the warrant requirement is the automobile exception. 24 The 

automobile exception applies when a vehicle is readily mobile 

and there is probable cause to believe that contraband or evidence of a crime will be found in the vehicle. 25

The automobile exception applies here. Lowman’s vehicle 

was capable of being driven, and Murray observed what he 

believed to be a pipe for ingesting narcotics. His belief, though 

later shown to be incorrect, was bolstered by Lowman’s 

admission to being a marijuana user and possession of a 

torch-style lighter commonly used for smoking controlled 

substances. Further, Lowman informed Murray that he had 

a machete in the vehicle, but Murray did not readily see the 

machete. Viewed objectively, these facts supplied probable 

22 Id.

23 Id.

24 Id.

25 State v. Lang, supra note 5.
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cause to believe contraband or evidence of a crime would be 

found inside the vehicle.

Because the district court’s findings of historical fact were 

not clearly erroneous and we find no Fourth Amendment violation, we conclude the court properly overruled Lowman’s 

motion to suppress.

Sufficiency of Evidence

Lowman next contends that there was insufficient evidence 

to support the verdict. The argument in his brief mentions only 

the conviction concerning the machete’s being a concealed 

weapon. Because an alleged error must be specifically argued 

in order to be considered, 26 we limit our analysis accordingly.

In connection with Lowman’s argument, he advocates for 

application of the “accused’s rule” when reviewing circumstantial evidence. Recently, in State v. Stack,

 27 we rejected an 

invitation to return to the accused’s rule. At oral argument, 

Lowman’s counsel forthrightly conceded that Stack—released 

after counsel filed Lowman’s appellate brief—controlled. For 

the same reasons explained in Stack, we yet again decline to 

apply the accused’s rule.

[18] The sufficiency analysis is driven by the elements of 

the offense and our standard of review. The offense of carrying a concealed weapon is committed when a person “carries 

a weapon or weapons concealed on or about his or her person, 

such as a handgun, a knife, brass or iron knuckles, or any other 

deadly weapon.” 28 Under our standard of review, we consider 

whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found 

that the machete was “concealed on or about [Lowman’s] 

person,” as provided in § 28-1202. 29 A weapon is concealed 

on or about the person if it is concealed in such proximity to 

26 See State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).

27 See State v. Stack, supra note 3.

28 Neb. Rev. Stat. § 28-1202(1)(a) (Reissue 2016).

29 See State v. Senn, 295 Neb. 315, 888 N.W.2d 716 (2016).
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the driver of an automobile as to be convenient of access and 

within immediate physical reach. 30

Here, the State adduced sufficient evidence regarding the 

machete to support the concealed weapon conviction. The 

machete, located in the vehicle’s center console area, was easily accessible and within Lowman’s immediate physical reach. 

In urging that the machete was not concealed, Lowman relies 

heavily on an officer’s testimony that the machete’s handle was 

visible from outside the passenger-side door. But Murray did 

not see the machete when he looked in the vehicle. Viewing 

the evidence in the light most favorable to the State, we conclude the evidence supported the conviction for carrying a 

concealed weapon.

Ineffective Assistance of Counsel

[19] Finally, Lowman assigns that trial counsel, who was 

different from appellate counsel, provided ineffective assistance. Generally, to prevail on a claim of ineffective assistance 

of counsel under Strickland v. Washington,

 31 the defendant 

must show that his or her counsel’s performance was deficient 

and that this deficient performance actually prejudiced the 

defendant’s defense. 32

[20,21] 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. 33

But 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. 34 The determining factor is 

30 Id.

31 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

32 State v. Lang, supra note 5.

33 Id.

34 Id.
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whether the record is sufficient to adequately review the question. 35 The record is sufficient 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. 36 We turn to Lowman’s two specific allegations of 

deficient performance.

[22] First, Lowman claims counsel provided ineffective 

assistance in several respects related to the motion to suppress. 

According to Lowman’s assignment, counsel was ill prepared 

and failed to brief the issues. But this allegation is broad and 

conclusory. Assignments of error on direct appeal regarding 

ineffective assistance of trial counsel must specifically allege 

deficient performance. 37 Lowman failed to allege what case 

law should have been provided or how it would have persuaded the court to grant the motion to suppress. We conclude 

these allegations of ineffective assistance of counsel were not 

made with sufficient particularity.

Lowman’s claim that counsel filed the motion to suppress at 

the last minute is refuted by the record. A motion containing 

identical allegations was filed nearly 4 weeks earlier, but counsel was unable to pursue it due to Lowman’s failure to appear 

at the hearing. Lowman additionally claims that the late filing 

deprived him of the ability to assemble evidence and testimony 

to refute the statements of the officers at trial. But he had the 

opportunity to attack the credibility of the officers during the 

jury trial, and he does not inform us of what evidence he would 

have offered. This aspect of his claim lacks the specificity 

required to allege deficient conduct.

Lowman’s second claim asserts that counsel should have 

called as witnesses two individuals. One was a friend whom 

Lowman had dropped off in the area at around 3 a.m. The 

35 Id.

36 Id.

37 State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. LOWMAN

Cite as 308 Neb. 482

other was a clerk at a convenience store with whom Lowman 

spoke after dropping off his friend. Lowman wished to have 

these individuals testify that he was not in the area for an 

unlawful purpose.

[23,24] We are mindful that the entire analysis of a claim 

of ineffective assistance of counsel should be viewed with a 

strong presumption that counsel’s actions were reasonable. 38

Further, trial counsel is afforded due deference to formulate trial strategy and tactics, and an appellate court will not 

second-guess trial counsel’s reasonable strategic tactics when 

reviewing claims of ineffective assistance of counsel. 39 Here, 

whatever knowledge these individuals had about what Lowman 

was doing 2 hours prior to the encounter with law enforcement 

is of little relevance, particularly when considering that he was 

found to be in possession of methamphetamine and concealed 

weapons and charged accordingly. We conclude that counsel 

did not perform deficiently in declining to call these individuals as witnesses.

CONCLUSION

We conclude that the court properly overruled Lowman’s 

motion to suppress and that evidence concerning the machete 

supported the conviction for carrying a concealed weapon. 

With regard to Lowman’s assignments of ineffective counsel that were alleged with sufficient particularity, the record 

either refuted the allegations or showed that trial counsel’s performance was not deficient. We affirm the district 

court’s judgment.

Affirmed.

38 State v. Oliveira-Coutinho, 304 Neb. 147, 933 N.W.2d 825 (2019).

39 State v. Lang, supra note 5.