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STATE v. ROEBUCK

Cite as 31 Neb. App. 67

State of Nebraska, appellee, v. 

Richard L. Roebuck, appellant.

___ N.W.2d ___

Filed May 31, 2022. No. A-21-342.

1. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error 

appearing on the record.

2. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

3. Criminal Law: Courts: Appeal and Error. When deciding appeals 

from criminal convictions in county court, an appellate court applies the 

same standards of review that it applies to decide appeals from criminal 

convictions in district court.

4. Convictions: Appeal and Error. A conviction in a bench trial of a 

criminal case is sustained if the evidence, viewed and construed most 

favorably to the State, is sufficient to support that conviction. The trial 

court’s findings have the effect of a jury verdict and will not be set aside 

unless clearly erroneous.

5. Rules of Evidence: Appeal and Error. When 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.

6. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews 

for clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to 

admit evidence over a hearsay objection or exclude evidence on hearsay grounds.

7. Sentences: Judgments: Appeal and Error: Words and Phrases.

Where a sentence imposed within the statutory limits is alleged on 

Nebraska Supreme Court Online Library

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

06/07/2022 08:08 AM CDT
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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 imposed. Absent an abuse of discretion by the 

trial court, an appellate court will not disturb a sentence imposed within 

statutory limits. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its 

action is clearly against justice or conscience, reason, and evidence.

8. 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. 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 was or was not prejudiced by a defense counsel’s alleged 

deficient performance.

9. Rules of Evidence: Hearsay. For a statement to be an excited utterance, 

the following criteria must be met: (1) There must be a startling event; 

(2) the statement must relate to the event; and (3) the declarant must 

make the statement while under the stress of the event.

10. ____: ____. The justification for the excited utterance exception is that 

circumstances may produce a condition of excitement which temporarily 

stills the capacity for reflection and produces utterances free of conscious fabrication.

11. ____: ____. The true test in spontaneous exclamations is not when the 

exclamation was made, but whether under the circumstances of the particular exclamation, the speaker may be considered as speaking under 

the stress of nervous excitement and shock produced by the act in issue.

12. Appeal and Error. 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.

13. Constitutional Law: Testimony. The Confrontation Clause of the U.S. 

Constitution only applies to testimonial statements.

14. Testimony: Words and Phrases. The term “testimonial” applies to 

prior testimony at a preliminary hearing, before a grand jury, or at a 

former trial, and to police interrogations.

15. Trial: Evidence: Appeal and Error. An objection must be specifically 

stated, and on appeal, a defendant may not assert a different ground for 

his or her objection to the admission of evidence than was offered to the 

trier of fact.
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Cite as 31 Neb. App. 67

16. Convictions: Sentences: Ordinances: Appeal and Error. When a 

defendant appeals a conviction and sentence under a municipal ordinance, claiming that the evidence is insufficient for a conviction and 

that a sentence is excessive, an appellate court’s consideration of the 

assignments of error requires an examination of the specific ordinance involved.

17. Jury Trials: Ordinances. Neb. Rev. Stat. § 25-2705 (Reissue 2016) 

precludes a defendant from obtaining a jury trial in a prosecution for the 

violation of a municipal ordinance.

18. Effectiveness of Counsel: 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.

19. Effectiveness of Counsel: Records: Appeal and Error. On direct 

appeal, the resolution of ineffective assistance of counsel claims turns 

upon the sufficiency of the record. In those cases where the record on 

direct appeal was sufficient to address a claim of ineffective assistance 

of trial counsel, the record itself either affirmatively proved or rebutted 

the merits of the claim. That is, the record established either that trial 

counsel’s performance was not deficient, that the appellant could not 

establish prejudice, or that trial counsel’s actions could not be justified 

as a part of any plausible trial strategy.

20. Effectiveness of Counsel: Proof: Appeal and Error. 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. 

To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the 

proceeding would have been different.

21. Effectiveness of Counsel: Appeal and Error. While an appellant is not 

required on direct appeal to allege prejudice when claiming ineffective 

assistance of trial counsel, an appellant must make specific allegations 

of trial counsel’s deficient performance.

22. Effectiveness of Counsel: Trial: Presumptions: Appeal and Error.

When reviewing claims of alleged ineffective assistance of counsel, trial 

counsel is afforded due deference to formulate trial strategy and tactics. 

There is a strong presumption that counsel acted reasonably, and an 

appellate court will not second-guess reasonable strategic decisions.

23. Effectiveness of Counsel: Records: Appeal and Error. Ineffective 

assistance claims on direct appeal must be presented with enough 
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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 be able to 

recognize whether the claim was brought before the appellate court.

24. Effectiveness of Counsel: Witnesses: Appeal and Error. Appellate 

counsel must give on direct appeal the names or descriptions of any 

uncalled witnesses forming the basis of a claim of ineffective assistance 

of trial counsel. 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.

25. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An 

ineffective assistance of counsel claim will not be addressed on direct 

appeal if it requires an evidentiary hearing.

26. Constitutional Law: Trial: Attorney and Client: Testimony: Waiver.

A defendant has a fundamental constitutional right to testify. The right 

to testify is personal to the defendant and cannot be waived by defense 

counsel’s acting alone.

27. Trial: Attorney and Client: Effectiveness of Counsel: Testimony: 

Waiver. Defense counsel’s advice to waive the right to testify can 

present a valid claim of ineffective assistance in two instances: (1) if 

the defendant shows that counsel interfered with his or her freedom to 

decide to testify or (2) if counsel’s tactical advice to waive the right 

was unreasonable.

Appeal from the District Court for Lancaster County, Kevin 

R. McManaman, Judge, on appeal thereto from the County 

Court for Lancaster County, Matthew L. Acton, Judge. 

Judgment of District Court affirmed.

Robert Wm. Chapin, Jr., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Pirtle, Chief Judge, and Riedmann and Bishop, Judges.

Pirtle, Chief Judge.

INTRODUCTION

Richard L. Roebuck appeals from an order of the 

Lancaster County District Court affirming his conviction 
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Cite as 31 Neb. App. 67

and sentence for assault and battery in violation of Lincoln 

Mun. Code § 9.12.010 (1997). For the reasons that follow, 

we affirm.

BACKGROUND

On December 2, 2019, the State filed a criminal complaint 

against Roebuck in the county court for Lancaster County, 

alleging one count of third degree domestic assault in violation of Neb. Rev. Stat. § 28-323(1) and (4) (Reissue 2016). On 

December 18, the State filed an amended complaint alleging 

one count of assault and battery in violation of Lincoln Mun. 

Code § 9.12.010. Roebuck pled not guilty to the amended complaint, and the matter was set for a bench trial.

The matter proceeded to a bench trial on February 27, 2020, 

wherein the following evidence was adduced: At approximately 

6:30 a.m. on November 28, 2019, F.P. was roused awake by his 

mother to find a woman screaming for help outside of their 

house on North 28th Street in Lincoln, Nebraska. According 

to F.P., the woman was crying and shaking, and he observed 

that she kept “looking back over her shoulder.” F.P. heard the 

woman say “‘[m]y boyfriend hit me.’” Roebuck objected to 

this testimony on hearsay grounds, and the court overruled that 

objection. F.P. let the woman inside the house and instructed 

his sister to call the police. The woman continued “shaking and 

crying” and indicated she was experiencing pain in her ribs. 

F.P. recalled that the woman said something about a preexisting 

injury to her ribs which was aggravated because “he had hit her 

in the ribs.”

F.P.’s sister called the 911 emergency dispatch service, and 

a recording of the call was admitted into evidence. Within the 

first 30 seconds of the recording, a woman’s voice is heard 

in the background saying either “he was hitting me, punching me” or “he was kicking me, punching me.” F.P. testified 

that the voice heard in the background is that of the woman 

he discovered outside the house. Roebuck objected to the 

admission of this evidence on both hearsay and confrontation 
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grounds. With respect to hearsay, the court stated that “foundation for excited utterance has been established.” With respect 

to confrontation, the court agreed that much of the recorded 

call consisted of testimonial responses to the 911 operator’s 

questions. However, the court admitted the statement above as 

nontestimonial because it was not prompted by any question 

from the 911 operator.

Within approximately 10 minutes of the 911 call, Lincoln 

police officers arrived on the scene. Officer Zack Sanchez 

testified that he arrived at the residence on North 28th Street 

and made contact with the victim. Sanchez observed her sitting 

on the couch, and he testified that “[s]he looked to be actively 

upset, and her demeanor showed signs that she may be in some 

sort of fear.” After entering the house, but prior to making 

contact with the victim, Sanchez testified that he overheard her 

“telling the individuals who lived there what was going on.” 

Specifically, Sanchez testified that he heard the victim say she 

and her boyfriend “had gotten into an argument, which led to 

him being aggressive and grabbed her, which led her to come 

over across the street.” Roebuck objected to this testimony 

on hearsay and foundation grounds, and the court overruled 

that objection.

Sanchez testified that he eventually introduced himself and 

began speaking with the victim, at which point he noticed a 

small cut on her head. Sanchez observed that she was speaking in a “trembling manner, like she was fearful.” Sanchez also 

testified that he observed minor swelling on the victim’s head 

and a bruise “which grew increasingly darker as the conversation went on.” Based on his experience with simple bruising 

and swelling, Sanchez testified that her injuries appeared to 

be recent.

After trial, on February 28, 2020, the court found Roebuck 

guilty on one count of assault and battery in violation 

of Lincoln Mun. Code § 9.12.010 and ordered a presentence investigation. The court reconvened for sentencing on 

May 1, but the matter was continued to allow Roebuck an 
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opportunity to enroll in domestic violence classes. The court 

reconvened again on June 19, but the matter was once again 

continued in light of a broadcast for Roebuck’s arrest in connection with a “felony domestic-related assault.” The court 

reconvened again on June 26, at which point Roebuck was 

in custody on a felony charge. The court ultimately sentenced Roebuck to the maximum term of 6 months in the 

county jail.

Roebuck appealed to the district court for Lancaster County, 

assigning that the county court erred in (1) admitting statements of the victim through Sanchez over hearsay objections, 

(2) admitting statements of the victim through Sanchez over 

confrontation objections, (3) admitting statements of the victim through F.P. over hearsay objections, (4) finding Roebuck 

guilty without sufficient evidence, and (5) imposing an excessive sentence. Roebuck also assigned that his trial counsel was 

ineffective in a number of respects. Upon reviewing the record 

and hearing argument, the district court affirmed Roebuck’s 

conviction and sentence. This appeal followed.

ASSIGNMENTS OF ERROR

Roebuck assigns, restated, that the district court erred in (1) 

affirming the county court’s admission of statements of the victim through Sanchez over hearsay objections, (2) affirming the 

county court’s admission of statements of the victim through 

Sanchez over confrontation objections, (3) affirming the county 

court’s admission of statements of the victim through F.P. over 

hearsay objections, (4) affirming the county court’s finding 

of guilt without sufficient evidence, (5) affirming the county 

court’s imposition of an excessive sentence, and (6) failing to 

find that Roebuck was entitled to a jury trial.

Additionally, Roebuck assigns that his trial counsel was 

ineffective for (1) failing to call all known witnesses, (2) failing to object on grounds of confrontation to statements made 

by the victim admitted through the testimony of Sanchez, 

(3) failing to fully and completely cross-examine Sanchez, 
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(4) failing to fully and completely cross-examine Officer 

Thomas Domanski, (5) failing to fully and completely crossexamine F.P., (6) failing to properly advise Roebuck on the 

decision whether to testify at trial, and (7) failing to object to 

the amended complaint.

STANDARD OF REVIEW

[1-3] Both the district court and a higher appellate court generally review appeals from the county court for error appearing 

on the record. State v. Collins, 307 Neb. 581, 950 N.W.2d 89 

(2020). When reviewing a judgment for errors appearing on 

the record, an appellate court’s inquiry is whether the decision 

conforms to the law, is supported by competent evidence, and 

is neither arbitrary, capricious, nor unreasonable. Id. When 

deciding appeals from criminal convictions in county court, 

we apply the same standards of review that we apply to decide 

appeals from criminal convictions in district court. Id.

[4] A conviction in a bench trial of a criminal case is sustained if the evidence, viewed and construed most favorably 

to the State, is sufficient to support that conviction. State v. 

Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997). The trial 

court’s findings have the effect of a jury verdict and will not be 

set aside unless clearly erroneous. Id.

[5,6] When 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. State v. Childs, 309 Neb. 427, 960 N.W.2d 

585 (2021). Apart from rulings under the residual hearsay 

exception, an appellate court reviews for clear error the factual findings underpinning a trial court’s hearsay ruling and 

reviews de novo the court’s ultimate determination to admit 

evidence over a hearsay objection or exclude evidence on hearsay grounds. Id.

[7] 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 
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in considering and applying the relevant factors as well as any 

applicable legal principles in determining the sentence to be 

imposed. State v. Collins, supra. Absent an abuse of discretion 

by the trial court, an appellate court will not disturb a sentence 

imposed within statutory limits. Id. An abuse of discretion 

occurs when a trial court’s decision is based upon reasons that 

are untenable or unreasonable or if its action is clearly against 

justice or conscience, reason, and evidence. Id.

[8] 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. Id. We determine as a matter of law whether 

the record conclusively shows that (1) a defense counsel’s 

performance was deficient or (2) a defendant was or was not 

prejudiced by a defense counsel’s alleged deficient performance. Id.

ANALYSIS

Hearsay.

Roebuck’s first and third assignments of error allege that 

the district court erred in affirming the county court’s admission of statements allegedly made by the victim over hearsay 

objections. Because the victim failed to appear for trial, despite 

being ordered to do so, the State sought to introduce certain 

statements allegedly made by her through the testimony of 

other witnesses.

Chronologically, the first statement made by the victim 

and admitted at trial occurred outside the North 28th Street 

residence when F.P. made contact with the victim, who was 

then screaming for help. F.P. testified the victim stated that 

“‘[m]y boyfriend hit me.’” The second statement made by 

the victim and admitted at trial occurred shortly after F.P. let 

her into the house. F.P.’s sister called 911, and within the first 

30 seconds of the recorded call, a woman’s voice is heard in 
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the background saying either “he was hitting me, punching 

me” or “he was kicking me, punching me.” The third statement 

made by the victim and admitted at trial occurred approximately 10 minutes after the 911 call when Sanchez arrived at 

the residence. Sanchez testified that he overheard her telling 

the other individuals in the house that she and her boyfriend 

“had gotten into an argument, which led to him being aggressive and grabbed her, which led her to come over across the 

street.” Roebuck objected to each of these statements on hearsay grounds.

Hearsay is a statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence to 

prove the truth of the matter asserted. Neb. Rev. Stat. § 27-801 

(Cum. Supp. 2020). Hearsay is not admissible except as provided by the Nebraska Evidence Rules, other rules adopted by 

the statutes of the State of Nebraska, or by the discovery rules 

of the Nebraska Supreme Court. See Neb. Rev. Stat. § 27-802 

(Reissue 2016). There is an exception to the hearsay rule when 

the statement offered was related to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. See Neb. Rev. Stat. 

§ 27-803(1) (Reissue 2016).

[9-11] The statements in question clearly contain hearsay. 

The county court admitted each of the statements under the 

excited utterance exception, and the district court affirmed. 

For a statement to be an excited utterance, the following criteria must be met: (1) There must be a startling event; (2) the 

statement must relate to the event; and (3) the declarant must 

make the statement while under the stress of the event. State v. 

Hale, 290 Neb. 70, 858 N.W.2d 543 (2015). The justification 

for the excited utterance exception is that circumstances may 

produce a condition of excitement which temporarily stills 

the capacity for reflection and produces utterances free of 

conscious fabrication. Id. The true test in spontaneous exclamations is not when the exclamation was made, but whether 

under the circumstances of the particular exclamation, the 
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speaker may be considered as speaking under the stress of 

nervous excitement and shock produced by the act in issue. 

State v. Hembertt, 269 Neb. 840, 696 N.W.2d 473 (2005).

Roebuck does not contest that a startling event occurred 

or that the statements at issue related to that startling event. 

Rather, Roebuck asserts that “there was insufficient evidence 

presented to identify whether the time had dissipated between 

the event and the offered statement.” Brief for appellant at 14. 

Roebuck acknowledges the evidence of the victim’s apparent 

distress. However, he argues “the biggest piece missing under 

the excited utterance scrutiny is the lack of a timeframe.” Id. at 

23. Roebuck asserts “there is no evidence presented as a time 

frame to identify whether the complaining witness had time for 

conscious thought.” Id. at 21.

With regard to the first statement made to F.P. from outside 

the residence, Roebuck argues that “[v]ague statements identifying an event, i.e. ‘My boyfriend hit me,’ without more fail 

to provide enough information to determine if the statement is 

an excited utterance.” Id. at 23. Specifically, Roebuck contends 

that “[t]he boyfriend could have allegedly hit [the victim] a 

week ago, a month ago, or perhaps not at all and an entirely 

different event occurred.” Id. Roebuck also questions the spontaneity of the statement, asserting that F.P. prompted the statement through his questions as he was trying to ascertain why 

the victim was screaming outside his door.

With regard to the second statement overheard on the 911 

call, Roebuck asserts:

[T]here could have been plenty of time for the stress from 

a startling event to dissipate . . . . [The victim] had time 

to leave the home, go across the street, knock on the door, 

and wait to be allowed in, and be seated on the couch all 

prior to making the statement.

Brief for appellant at 21. With regard to the third statement overheard by Sanchez upon arriving at the residence, 

Roebuck acknowledges Sanchez’ testimony establishing a 

10-minute timeframe between the 911 call and his arrival. 
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However, Roebuck argues that “the call for 911 is still not 

indicative of the time of the alleged incident,” noting that 

“[p]eople can call the police for assistance with reports of a 

belated incident.” Id. at 14.

In affirming the county court’s admission of the above statements, the district court reasoned as follows:

The victim fled across the street at six-thirty in the morning and was found screaming at [F.P.’s] front door. While 

no one described the “exact timeline” of the assault, she 

was observed to be crying and screaming and appeared 

distressed to [F.P.], and was actively upset in a “trembling 

manner, like she was fearful,” even after Officer Sanchez 

arrived. Her statements pertained to her argument with 

[Roebuck], that he had grabbed and hit her, and she was 

clearly still under the influence of the event before and 

even after Sanchez arrived ten minutes later. The statements fall squarely within the excited utterance exception 

to the hearsay rule.

We agree. Roebuck effectively concedes that there was some 

startling event which caused the victim to flee across the street 

screaming for help. Rather than disputing the occurrence of 

a startling event in the first place, Roebuck argues that there 

could have been sufficient time between such event and the 

statements at issue for the exciting influence to dissipate. 

However, the evidence is to the contrary.

When the victime made the first statement to F.P. outside 

his door, she was frantic. F.P. testified she was shaking, crying, and looking back over her shoulder when she stated that 

“‘[m]y boyfriend hit me.’” This prompted F.P. to let the victim inside the house, at which point her trembling voice is 

heard in the background of the 911 call saying either “he was 

hitting me, punching me” or “he was kicking me, punching 

me.” Sanchez testified that he arrived on the scene approximately 10 minutes later, at which point the vitim still appeared 

to Sanchez to be “actively upset.” Sanchez overheard the 

victim say to the other individuals in the house that she and 
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her boyfriend “had gotten into an argument, which led to him 

being aggressive and grabbed her, which led her to come over 

across the street.” Thereafter, Sanchez spoke with the victim 

and noted that she was speaking in a “trembling manner, like 

she was fearful.”

The record reflects that a startling event occurred involving 

Roebuck and the victim, which event caused the victim to flee 

across the street screaming for help. In the minutes following this event, the victim made the three statements above, all 

of which pertain to the startling event that occurred. Despite 

Roebuck’s assertions to the contrary, the victim appeared 

at all pertinent times to be under the exciting influence of 

the startling event that occurred between her and Roebuck. 

Accordingly, we affirm the order of the district court affirming the county court’s admission of these statements under the 

excited utterance exception to the hearsay rule.

Confrontation.

[12] Roebuck’s second assignment of error alleges the district court erred in affirming the county court’s admission of 

the third statement above through Sanchez over a confrontation objection. We note that Roebuck also makes a confrontation argument with regard to the statement heard in the 

background of the 911 call; however, that argument does not 

correspond to any assignment of error, and thus, we do not 

address it. See State v. Figures, 308 Neb. 801, 957 N.W.2d 

161 (2021) (alleged error must be both specifically assigned 

and specifically argued in brief of party asserting error to be 

considered by appellate court).

[13,14] The Confrontation Clause provides, in relevant part, 

that “[i]n all criminal prosecutions, the accused shall enjoy 

the right . . . to be confronted with the witnesses against him 

. . . .” U.S. Const. amend. VI. This admonition only applies 

to testimonial statements, as “[o]nly statements of this sort 

cause the declarant to be a ‘witness’ within the meaning of 

the Confrontation Clause.” Davis v. Washington, 547 U.S. 
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813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (quoting 

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 

L. Ed. 2d 177 (2004)). “‘“[W]hatever else the term [‘testimonial’] covers, it applies . . . to prior testimony at a preliminary 

hearing, before a grand jury, or at a former trial, and to police 

interrogations.”’” State v. Vaught, 268 Neb. 316, 325, 682 

N.W.2d 284, 291 (2004) (quoting Horton v. Allen, 370 F.3d 75 

(1st Cir. 2004)).

[15] While Roebuck does specifically assign and argue the 

alleged error with regard to the admission of the statement 

overheard by Sanchez, the State counters that Roebuck failed 

to preserve the matter for appeal because he failed to specifically object on confrontation grounds when Sanchez testified 

to the statement. We agree. An objection must be specifically 

stated, and on appeal, a defendant may not assert a different 

ground for his or her objection to the admission of evidence 

than was offered to the trier of fact. State v. Childs, 309 Neb. 

427, 960 N.W.2d 585 (2021).

In this case, Roebuck failed to specifically raise a confrontation objection when Sanchez testified to the statement which 

he overheard upon arriving at the residence. Roebuck had 

previously objected to the expected testimony on confrontation grounds, and the court requested the State to “clarify the 

foundation for Crawford with the officer.” The State thus laid 

additional foundation establishing that when Sanchez walked 

into the house, “it was slightly chaotic,” and the statement at 

issue was overheard by Sanchez prior to his making contact 

with the victim or prompting her with questions. The State 

again asked Sanchez to testify to the statement he overheard, 

which prompted an objection as to hearsay and foundation, 

which the court overruled. Roebuck failed to reiterate his confrontation objection.

Asserting that the admitted statement was testimonial, 

Roebuck emphasizes that the victim “made the statement with 

the neighbors while the police officer was present.” Brief for 

appellant at 18. Thus, the apparent concern prompting the 
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initial objection on confrontation grounds was that the statement was made in response to police interrogation. Indeed, 

the court noted in response to Roebuck’s initial confrontation 

objection that it was unclear whether the statement was in 

response to a question. The State then laid additional foundation to demonstrate that the statement was not made in response 

to a police interrogation. If Roebuck still believed that the State 

had failed to lay sufficient foundation to prove the statement 

was not testimonial, then he should have specifically reiterated 

his confrontation objection at that point. Because he did not, 

we conclude Roebuck failed to preserve that issue for appeal 

and decline to address his second assignment of error.

Sufficiency of Evidence.

[16] Roebuck’s fourth assignment of error alleges that the 

district court erred in affirming the county court’s finding of 

guilt without sufficient evidence. When a defendant appeals a 

conviction and sentence under a municipal ordinance, claiming that the evidence is insufficient for a conviction and that a 

sentence is excessive, an appellate court’s consideration of the 

assignments of error requires an examination of the specific 

ordinance involved. State v. King, 239 Neb. 853, 479 N.W.2d 

125 (1992). Roebuck was charged with violating Lincoln Mun. 

Code § 9.12.010, which provides as follows:

a. It shall be unlawful for any person intentionally or 

knowingly to:

1. Threaten another in a menacing manner; or

2. Attempt to strike another person; or

3. Place another person in fear or apprehension of 

imminent bodily harm.

b. It shall be unlawful for any person intentionally, 

knowingly, or recklessly to:

1. Cause bodily injury to another person; or

2. Strike another person.

The present case is analogous to State v. Thompson, 278 

Neb. 320, 770 N.W.2d 598 (2009), wherein the defendant 
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was similarly charged with assault in violation of Lincoln 

Mun. Code § 9.12.010. In Thompson, the defendant challenged 

the sufficiency of the evidence based on the State’s failure 

to adduce testimony from the alleged victim. Rejecting the 

defendant’s claim, the Supreme Court observed as follows:

[The defendant] does not provide any case law to support his claim that the evidence was insufficient because 

the alleged victim did not testify. There is no statute 

requiring a victim to testify in a criminal case. This court 

must review only whether the evidence was sufficient. In 

so doing, 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 

county court heard and observed the witnesses and was 

able to assess their credibility, and it found sufficient evidence to convict [the defendant] of violating the municipal code.

State v. Thompson, 278 Neb. at 329, 770 N.W.2d at 607 (citation omitted). Roebuck likewise argues that the best indication 

of the insufficiency of the evidence in this case “is the complete lack of testimony directly from the complaining witness 

herself.” Brief for appellant at 26. However, like in Thompson, 

Roebuck fails to provide any case law or statute to support 

this argument.

In affirming the county court’s conviction of Roebuck, the 

district court reasoned that “[t]he evidence, viewed in the 

light most favorable to the prosecution, established facts sufficient for the trier of fact to find [Roebuck] guilty beyond 

a reasonable doubt.” We agree. The evidence is that there 

was an argument between the victim and Roebuck. Roebuck 

became aggressive, which prompted the victim to flee across 

the street. As previously discussed, the county court properly 

admitted statements of the victim which tend to demonstrate 

that Roebuck hit and punched her prior to her fleeing. F.P. 
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testified that the victim appeared to have an injury to her ribs. 

Moreover, Sanchez observed a cut on her head, as well as 

swelling and a bruise which appeared to be recent. Altogether, 

the evidence is sufficient to establish guilt beyond a reasonable doubt, and Roebuck’s fourth assignment of error is without merit.

Excessive Sentence.

Roebuck’s fifth assignment of error alleges that the district 

court erred in affirming the county court’s imposition of an 

excessive sentence. Lincoln Mun. Code § 1.24.010 (2006) provides as follows:

Any person . . . who shall violate any of the provisions 

of this code for which a penalty is not otherwise specifically provided shall be deemed guilty of a misdemeanor, 

and upon conviction thereof shall be punished by imprisonment in the county jail for a period not to exceed six 

months, or by a fine of not to exceed $500.00, recoverable with costs, or both.

The county court sentenced Roebuck to the maximum 6 months 

in county jail and ordered that he pay the costs of the prosecution. The court cited Roebuck’s “lengthy criminal history,” 

revocation from probation in 2015, lack of remorse, and high 

risk to reoffend. Moreover, the court noted that Roebuck was in 

custody on a “felony domestic charge,” adding that “[w]hile he 

is presumed innocent of that charge . . . [i]t does, however, go 

into my consideration in determining whether or not to place 

him on probation.”

In affirming the sentence imposed by the county court, 

the district court observed that “[t]he record reflects the 

[county] court considered the relevant factors when imposing the sentence which was within the statutory limits” and 

that “[t]he sentencing court’s reasons reflected [Roebuck’s] 

significant criminal history, including a prior conviction for 

domestic assault.” The district court ultimately concluded 

that “[c]onsidering the relevant factors including [Roebuck’s] 
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violent history and the nature of the crime, the [county] court’s 

sentence . . . was not an abuse of discretion.” We agree.

On appeal, Roebuck acknowledges the relevant factors considered by the county court. However, Roebuck argues the 

court failed to account for certain mitigating factors, in that he 

“had started domestic violence classes, has positive relationships with his children, his own experience as the victim of 

physical abuse/neglect, and [his] prior military experience.” 

Brief for appellant at 28. However, each of these factors were 

included in the presentence investigation report, which the 

court reviewed prior to sentencing. Based on our review of the 

record, the sentence by the county court was not an abuse of 

discretion. Accordingly, the district court did not err in affirming the county court’s sentence, and Roebuck’s fifth assignment of error is without merit.

Right to Jury Trial.

Roebuck’s sixth assignment of error alleges that the district 

court erred by not finding that Roebuck was entitled to a jury 

trial. Roebuck emphasizes that he was originally charged with 

third degree domestic assault in violation of § 28-323(1) and 

(4) and that the matter was set for a jury trial. Thereafter, 

the State amended the charge to a violation of a Lincoln 

municipal ordinance, and the matter was set for a bench trial. 

Roebuck argues it was plain error for the county court to set 

the matter for a bench trial without first obtaining a waiver of 

jury trial.

[17] On appeal to the district court, Roebuck likewise 

argued that the amended complaint “‘stripped’ him of a ‘right’ 

to a jury trial.” However, the district court reasoned that 

“[o]f course, [Roebuck] had no right to a jury trial with the 

charge he was tried under, and it could have been brought 

as that in the first place, so no right was ‘stripped’ of him.” 

Indeed, Roebuck was ultimately charged with violating a 

Lincoln municipal ordinance. Under Neb. Rev. Stat. § 25-2705 

(Reissue 2016), “Either party to any case in county court, 
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except criminal cases arising under city or village ordinances

. . . may demand a trial by jury.” (Emphasis supplied.) Thus, 

Roebuck was not entitled to a jury trial. See State v. Cozzens, 

241 Neb. 565, 490 N.W.2d 184 (1992) (holding § 25-2705 

precludes defendant from obtaining jury trial in prosecution 

for violation of municipal ordinance). His sixth assignment of 

error is without merit.

Ineffective Assistance of Counsel.

[18,19] Finally, Roebuck assigns, through new counsel, 

seven ways in which his trial counsel was ineffective. 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. Filholm, 

287 Neb. 763, 848 N.W.2d 571 (2014). On direct appeal, the 

resolution of ineffective assistance of counsel claims turns 

upon the sufficiency of the record. Id. In those cases where 

the record on direct appeal was sufficient to address a claim 

of ineffective assistance of trial counsel, the record itself 

either affirmatively proved or rebutted the merits of the claim. 

Id. That is, the record established either that trial counsel’s 

performance was not deficient, that the appellant could not 

establish prejudice, or that trial counsel’s actions could not be 

justified as a part of any plausible trial strategy. Id.

[20-22] 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. State v. Filholm, supra. To show prejudice, the 

defendant must demonstrate a reasonable probability that but 

for counsel’s deficient performance, the result of the proceeding would have been different. Id. While an appellant is not 

required on direct appeal to allege prejudice when claiming ineffective assistance of trial counsel, an appellant must 
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make specific allegations of trial counsel’s deficient performance. See id. When reviewing claims of alleged ineffective 

assistance of counsel, trial counsel is afforded due deference to 

formulate trial strategy and tactics. State v. Huston, 285 Neb. 

11, 824 N.W.2d 724 (2013). There is a strong presumption 

that counsel acted reasonably, and an appellate court will not 

second-guess reasonable strategic decisions. Id.

Roebuck first alleges that trial counsel was ineffective for 

failing to call all known witnesses. Specifically, Roebuck 

argues trial counsel should have called the mother and sister 

of F.P., who were also present at the residence on North 28th 

Street on the morning in question. Roebuck asserts that “[t]hese 

witnesses could provide additional or different evidence” and 

identify any inconsistencies in the testimony of the witnesses 

that did testify. Brief for appellant at 32. Additionally, Roebuck 

asserts that trial counsel “failed to call any other neighbors,” 

whose testimony “could have also identified any inconsistencies” in the other testimony. Id. at 33.

In rejecting this claim, the district court observed that “no 

factual basis is offered for the assertion that such testimony 

would be forthcoming from those people,” adding that “[i]t is 

well-established that failure to call all potential witnesses is not 

evidence of ineffective practice by a lawyer, nor is there any 

basis to believe not doing so was prejudicial.” In its brief to 

this court, the State argues that “Roebuck has failed to allege 

what the testimony of these witnesses would have been, and 

this lack of specificity deprives this Court of the ability to 

determine if the record is sufficient to address the matter on 

direct appeal. Brief for appellee at 25. Alternatively, the State 

argues that the claim “has not been stated with sufficient specificity to preserve it.” Id.

[23,24] In State v. Abdullah, 289 Neb. 123, 133, 853 N.W.2d 

858, 866 (2014), the Supreme Court clarified that ineffective 

assistance claims on direct appeal must be presented “with 

enough particularity for (1) an appellate court to make a 

determination of whether the claim can be decided upon the 
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trial record and (2) a district court later reviewing a petition 

for postconviction relief to be able to recognize whether the 

claim was brought before the appellate court.” In Abdullah, 

the court found that the alleged failure to call “‘at least two’ 

witnesses” was not sufficiently specific in light of the court’s 

concern that a potential postconviction court would be unable 

“to identify if a particular failure to call a witness claim is 

the same one that was raised on direct appeal.” 289 Neb. at 

133, 134, 853 N.W.2d at 867. The court has since held that 

“[a]ppellate counsel must give on direct appeal the names or 

descriptions of any uncalled witnesses forming the basis of a 

claim of ineffective assistance of trial counsel.” State v. Lee, 

304 Neb. 252, 282, 934 N.W.2d 145, 166 (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).

In both Hill and Ash, the appellant raised on direct appeal 

a claim of ineffective assistance of counsel for the failure to 

adduce evidence from certain witnesses. In both cases, the 

Supreme Court emphasized that the appellant had failed to 

allege what the testimony of the uncalled witnesses would 

have been. See, State v. Hill, supra (in order to avoid dismissal without evidentiary hearing, defendant is required to 

specifically allege what testimony of these witnesses would 

have been); State v. Ash, supra (defendant does not explain 

what information uncalled witness possessed or what part of 

defendant’s testimony would have been corroborated). In both 

cases, the court held that the claim had not been alleged with 

sufficient particularity to preserve it for later postconviction 

relief. Moreover, both cases cited Abdullah for the proposition that specific allegations as to the substance of the omitted 

testimony are required to achieve the requisite particularity on 

direct appeal.
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However, in Abdullah, the court stated, “Our case law is 

clear that were this a motion for postconviction relief, [the 

defendant] would be required to specifically allege what the 

testimony of these witnesses would have been if they had 

been called in order to avoid dismissal without an evidentiary 

hearing.” 289 Neb. at 133, 853 N.W.2d at 867 (emphasis supplied). Immediately thereafter, the court added that “[i]n a 

direct appeal, we do not need specific factual allegations as to 

who should have been called or what that person or persons 

would have said to be able to conclude that any evidence of 

such alleged ineffective assistance will not be found in the 

trial record.” Id. Nevertheless, the court held that the lack of 

any specificity as to the uncalled witnesses was concerning for 

purposes of preserving a postconviction claim. Thus, Abdullah 

drew a sharp distinction between the level of particularity 

required to preserve a claim on direct appeal and the level of 

particularity required to justify an evidentiary hearing on a 

motion for postconviction relief.

[25] In the vast majority of cases, the purported testimony 

of an uncalled witness will not appear in the appellate record. 

Rather, whether the failure to call a witness amounted to 

ineffective assistance of counsel will most likely require an 

evidentiary hearing, “[a]nd an ineffective assistance of counsel claim will not be addressed on direct appeal if it requires 

an evidentiary hearing.” State v. Filholm, 287 Neb. 763, 771, 

848 N.W.2d 571, 579 (2014). As discussed in Abdullah, specific allegations as to the purported testimony of an uncalled 

witness would be required for a postconviction court to determine whether an evidentiary hearing is justified. However, 

on direct appeal, the fundamental question is whether a 

claim is raised with sufficient particularity for a postconviction court to “identify whether a particular claim of failing 

to investigate a witness is the same one that was raised on 

direct appeal.” State v. Blake, 310 Neb. 769, 799, 969 N.W.2d 

399, 421 (2022). Accordingly, Hill and Ash notwithstanding, 

“When the claim of ineffective assistance on direct appeal 
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involves uncalled witnesses . . . [i]t is sufficient that appellate 

counsel give on direct appeal the names or descriptions of 

any uncalled witnesses forming the basis of a claim of ineffective assistance of trial counsel.” State v. Blake, 310 Neb. at 

798-99, 969 N.W.2d at 421. See, also, State v. Lee, 304 Neb. 

252, 934 N.W.2d 145 (2019).

In this case, Roebuck sufficiently identified the mother and 

sister of F.P. as potential witnesses that trial counsel failed to 

call at trial. Thus, we find that portion of Roebuck’s claim 

was raised with sufficient particularity. However, we find 

that the vague assertion as to the failure to call “any other 

neighbors” is too broad and indefinite to permit a potential 

postconviction court to identify whether a later claim to any 

particular “neighbor” was the same claim raised on direct 

appeal. See brief for appellant at 33. Accordingly, we reject 

Roebuck’s claim of deficient performance as to the failure to 

call unnamed neighbors.

With regard to trial counsel’s failure to call as witnesses 

F.P.’s mother and sister, we agree with the State that the record 

is not sufficient to address this claim on direct appeal. The 

decision not to call additional witnesses was a matter of trial 

strategy, which, if reasonable, will not be second-guessed on 

appeal. However, there is nothing in the record to establish 

whether the failure to call F.P.’s mother and sister was a conscious choice of trial strategy. See State v. Huston, 285 Neb. 

11, 824 N.W.2d 724 (2013) (finding record insufficient where 

there was no evidence that would allow court to determine 

whether failure to object to evidence was conscious choice of 

trial strategy). Moreover, even if such was a conscious choice 

of trial strategy, there is nothing in the record to support 

Roebuck’s assertion that F.P.’s mother and sister could have 

supplied additional or different evidence, let alone what that 

evidence would have been. Accordingly, we conclude the trial 

record is insufficient to address Roebuck’s first claim of ineffective assistance on direct appeal.
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Roebuck next assigns that trial counsel was ineffective for 

failing to object on grounds of confrontation to statements 

made by the victim and admitted through the testimony of 

Sanchez. As discussed above, Roebuck initially objected on 

confrontation grounds to the anticipated testimony of Sanchez 

regarding the statement he overheard upon arrival at the North 

28th Street residence; however, Roebuck failed to reiterate his 

confrontation objection after the State laid additional foundation for the testimony. We conclude that this alleged deficiency 

of trial counsel is without merit insofar as Roebuck cannot 

demonstrate prejudice because the statement overheard by 

Sanchez prior to making contact with the victim or prompting 

her with questions was not testimonial and thus would not have 

been excluded even if Roebuck had properly raised a confrontation objection.

Roebuck next assigns that trial counsel was ineffective 

for failing to fully and completely cross-examine Sanchez, 

Domanski, and F.P. We note that Roebuck also presents an 

argument that trial counsel was ineffective for failing to 

object on hearsay and confrontation grounds to certain statements to which F.P. testified. However, such argument does 

not correspond to any assignment of error, and thus, we do 

not address it. See State v. Figures, 308 Neb. 801, 957 N.W.2d 

161 (2021).

Roebuck argues that trial counsel failed to adequately 

cross-examine Sanchez on his qualifications and the basis 

for his opinion that the victim’s injuries appeared recent. 

Roebuck argues trial counsel similarly failed to adequately 

cross-examine Domanski on his knowledge of bruising, which 

testimony “could have refuted . . . Sanchez’s testimony.” Brief 

for appellant at 36. Roebuck argues trial counsel failed to 

adequately cross-examine F.P. on the basis for his testimony 

regarding the injury to the victim’s ribs.

In rejecting these claims, the district court reasoned that 

they “are simply disagreements with the trial tactics employed 

by his lawyer, and nothing appears deficient resulting in 
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any prejudice within the meaning of Strickland v. Washington.” 

We agree. We are guided by the strong presumption that 

trial counsel acted reasonably, and an appellate court will 

not second-guess reasonable strategic decisions. See State v. 

Huston, supra. Moreover, even if trial counsel was deficient, 

Roebuck cannot show prejudice, because the evidence of the 

victim’s statements and the photographs of her injuries did 

not depend on trial counsel’s cross-examination of these witnesses. Accordingly, we conclude that Roebuck’s third, fourth, 

and fifth claims of ineffective assistance of counsel are without merit.

[26,27] Roebuck next assigns that trial counsel was ineffective for failing to properly advise him on the decision whether 

to testify at trial. Roebuck did not testify at trial. A defendant has a fundamental constitutional right to testify. State v. 

Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017). The right to 

testify is personal to the defendant and cannot be waived by 

defense counsel’s acting alone. Id. Defense counsel’s advice 

to waive the right to testify can present a valid claim of ineffective assistance in two instances: (1) if the defendant shows 

that counsel interfered with his or her freedom to decide to 

testify or (2) if counsel’s tactical advice to waive the right was 

unreasonable. Id.

We observe that the county court explicitly advised Roebuck 

as to his right to testify and asked Roebuck, “Have you had 

enough time to speak with [trial counsel] about both your right 

to testify and your right not to testify?” Roebuck responded, 

“Yes, sir.” Thereafter, the court confirmed with Roebuck that 

he was choosing not to testify freely, voluntarily, knowingly, 

and intelligently. However, while the record affirmatively 

establishes that Roebuck chose not to testify, there is no evidence as to the substance of trial counsel’s advice on that point. 

Accordingly, we conclude the record is insufficient to address 

this claim on direct appeal. See, State v. Hill, 298 Neb. 675, 

905 N.W.2d 668 (2018); State v. Mora, 298 Neb. 185, 903 
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N.W.2d 244 (2017); State v. Alvarado, 27 Neb. App. 334, 931 

N.W.2d 463 (2019).

Finally, Roebuck assigns that trial counsel was ineffective 

for failing to object to the amended complaint. Roebuck argues 

that counsel’s failure to object resulted in the loss of his right 

to a jury trial. However, as discussed above, Roebuck had no 

right to a jury trial under the amended charges, and the State 

could have originally charged Roebuck under the amended 

complaint. In rejecting this claim, the district court pointed out 

that the amended complaint actually reduced the possible penalty which Roebuck faced, adding that “[t]here is no merit to 

the argument that an objection effectively demanding a charge 

with double the penalty should or even could be granted by a 

Court, and were any such objection sustained, the [S]tate could 

simply have dismissed and refiled.” (Emphasis in original.) We 

agree. Accordingly, we conclude the record affirmatively establishes that trial counsel was not ineffective for failing to object 

to the amended complaint.

CONCLUSION

For the foregoing reasons, we affirm the order of the district 

court affirming Roebuck’s conviction and sentence for assault 

and battery in violation of Lincoln Mun. Code § 9.12.010. 

Additionally, we conclude the appellate record is insufficient 

to determine whether trial counsel was ineffective for failing to 

call as witnesses the mother and sister of F.P. and for failing 

to properly advise Roebuck on his right to testify. With regard 

to the remaining claims of ineffective assistance, we conclude 

the record affirmatively establishes either that trial counsel was 

not ineffective or that Roebuck cannot show prejudice.

Affirmed.