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STATE v. SCHWADERER

Cite as 296 Neb. 932

State of Nebraska, appellee, v. 

Robert L. Schwaderer, appellant.

___ N.W.2d ___

Filed June 16, 2017. No. S-16-501.

1. Trial: Evidence: Appeal and Error. An appellate court reviews the 

trial court’s conclusions with regard to evidentiary foundation and witness qualification for an abuse of discretion.

2. 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.

3. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

4. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is 

a question of law.

5. ____: ____. In reviewing claims of ineffective assistance of counsel on 

direct appeal, an appellate court decides only questions of law: Are the 

undisputed facts contained within the record 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?

6. Evidence: Appeal and Error. In reviewing 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.

7. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

Nebraska Supreme Court Online Library

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

08/04/2017 09:08 AM CDT
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8. Convictions: Proof. To sustain a conviction based on information 

derived from an electronic or mechanical measuring device, there must 

be reasonable proof that the measuring device was accurate and functioning properly.

9. Evidence: Proof. The requirement of authentication or identification 

as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

10. Rules of Evidence: Proof. A proponent of evidence is not required to 

conclusively prove the genuineness of the evidence or to rule out all 

possibilities inconsistent with authenticity.

11. ____: ____. If the proponent’s showing is sufficient to support a finding 

that the evidence is what it purports to be, the proponent has satisfied 

the requirement of Neb. Rev. Stat. § 27-901 (Reissue 2016).

12. Rules of Evidence: Circumstantial Evidence: Proof. Under Neb. 

Rev. Stat. § 27-901(2)(d) (Reissue 2016), a proponent may authenticate 

a document by circumstantial evidence, or its appearance, contents, 

substance, internal patterns, or other distinctive characteristics, taken in 

conjunction with circumstances.

13. Trial: Appeal and Error. On appeal, a defendant may not assert a different ground for his or her objection than was offered at trial.

14. Trial: Hearsay: Proof. It is best practice, when overruling a hearsay 

objection on the ground that an out-of-court statement is not received for 

the truth of the matter asserted, for a trial court to identify the specific 

nonhearsay purpose for which the out-of-court statement is relevant 

and probative.

15. Trial: Waiver: Appeal and Error. Failure to make a timely objection 

waives the right to assert prejudicial error on appeal.

16. 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; otherwise, the issue will be procedurally barred.

17. Effectiveness of Counsel: Postconviction: Records: Appeal and 

Error. An ineffective assistance of counsel claim is raised on direct 

appeal when the claim alleges deficient performance with enough particularity for (1) an appellate court to make a determination of whether the 

claim can be decided upon the trial record and (2) a district court later 

reviewing a petition for postconviction relief will recognize whether the 

claim was brought before the appellate court.

18. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of counsel claim is raised on direct appeal 
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does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review 

the question.

19. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. 

To establish a right to postconviction relief because of counsel’s ineffective assistance, the defendant has the burden, in accordance with 

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

674 (1984), to show that counsel’s performance was deficient; that is, 

counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. 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. A court may address the two prongs of this 

test, deficient performance and prejudice, in either order.

20. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument.

Appeal from the District Court for Lancaster County: Lori

A. Maret, Judge. Affirmed.

Joe Nigro, Lancaster County Public Defender, and Yohance 

Christie for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

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

Kelch, and Funke, JJ.

Cassel, J.

I. INTRODUCTION

In this direct appeal, Robert L. Schwaderer challenges his 

drug-related convictions and sentences. He raises numerous 

issues, but we focus primarily on (1) the admissibility of evidence of drug weights and “owe notes” and (2) the propriety 

of jury admonishments and instructions. Because we find no 

prejudicial error, we affirm the judgment. We also reject three 

claims of ineffective assistance of trial counsel and decline to 

reach a fourth claim because the record is not sufficient.
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II. BACKGROUND

1. Arrest and Charges

Schwaderer was arrested for driving under suspension and 

false reporting. A search incident to his arrest yielded a significant amount of packaged methamphetamine, approximately 

$3,300 in cash, a digital scale, empty baggies, and several 

notebooks and notepads. A later search of his person at the 

county jail produced another smaller amount of separately 

packaged methamphetamine. Schwaderer was then charged 

with possession with intent to deliver methamphetamine, at 

least 28 grams but less than 140 grams; possession of money 

to be used, violating Neb. Rev. Stat. § 28-416(1) (Supp. 2015) 

(drug money); and false reporting.

2. Trial

At trial, Schwaderer did not contest his actual possession 

of the methamphetamine but he alleged that he was only a 

user and did not possess the controlled substance with intent 

to deliver. Therefore, the main issues at trial were (1) whether 

Schwaderer was a seller—rather than a mere user—of methamphetamine and (2) how much methamphetamine he actually possessed.

(a) “Owe Notes”

The State offered the seized notebooks and notepads into 

evidence as indicative of sales of narcotics. Schwaderer 

objected to their admittance on authentication, foundation, 

relevance, and hearsay grounds. The court overruled the objections, received the items into evidence as exhibits 11 through 

15, and soon thereafter recessed for the day. The following 

morning, the court revisited its ruling. When the jurors were 

seated, the court instructed as follows:

Jurors, yesterday, as a part of the evidence received by 

the Court, the Court did receive Exhibits 11, 12, 13, 14 

and 15.

I’m, at this time, giving a cautionary instruction 

regarding those exhibits. The Court has received those 
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exhibits not for the truth of the matter asserted in 

the statements contained within those exhibits, but has 

received those exhibits for the purposes of trial today.

The State later called on an individual who had previously 

worked for the Lincoln/Lancaster County Narcotics Unit to 

explain the significance of the writings within the notebooks 

and notepads and to testify to the general practices of narcotics dealers. He testified as an expert witness and opined 

that the notebooks were records of narcotics sales and that 

they, taken with the large amount of methamphetamine and 

cash found on Schwaderer, indicated that Schwaderer sold 

methamphetamine.

The expert witness testified that through his work with the 

narcotics unit, he became familiar with “the drug culture” and 

the terms and procedures used for sales of narcotics. When the 

State attempted to elicit testimony from him concerning the 

meaning of words similar to those found within the notepads, 

Schwaderer objected on relevance and a side bar discussion 

was held. Schwaderer reminded the court that the notepads 

were received with the limiting instruction that they were not 

to be considered for the truth of the matter asserted within. 

He therefore objected to the witness’ testimony as unfairly 

and highly prejudicial. The State responded that the testimony 

“can be used to explain the items in those notebooks,” and the 

court overruled the objection. The court later explained, during another side bar discussion, its understanding of the limiting instruction:

The cautionary instruction was they’ve — those exhibits 

were received not for the truth of the matter asserted 

in the statements contained within those exhibits. For 

example, if Joe Blow — if it says Joe Blow owes me 

$25 for an eight ball, it’s not the truth of that asserted 

fact that Joe Blow actually does owe me $25 for that 

eight ball. That was what the cautionary instruction was 

going to.
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For any other purpose, that it illustrates something else, 

that it — for any other purpose, it is received.

Over Schwaderer’s objections, the notebooks and notepads 

were then published to the jury. The expert witness examined 

each page and testified to his opinion as to what various terms 

and phrases contained within meant. He concluded that the 

notebooks and notepads were consistent with ledgers for transactions involving controlled substances that he had seen in 

past narcotics investigations.

In the final instructions to the jury, instruction No. 8 stated: 

“Exhibits #11, #12, #13, #14, and #15 have been admitted for 

the limited purpose of showing the character and use of the 

location where they were found and not for the truth of any 

matters asserted in Exhibits #11, #12, #13, #14 and #15.”

(b) Weight of Methamphetamine

While the State repeatedly emphasized that the “owe notes” 

were “consistent with the sales of methamphetamine,” it also 

heavily relied on the large amount of methamphetamine as 

showing an intent to distribute for sale.

A forensic scientist testified to the processing and testing 

of the substance found on Schwaderer. The forensic scientist 

testified that the substance tested positive for methamphetamine. She additionally testified to the methods used to weigh 

the methamphetamine and the calibrations and tests done on 

the scales used. She testified that the large amount of packaged methamphetamine weighed 34.06 grams, plus or minus 

0.15 grams, and that the separate smaller amount of packaged methamphetamine weighed 0.3580 grams, plus or minus 

0.0056 grams.

The forensic scientist additionally testified to the purity 

analysis conducted on the methamphetamine. The court 

received into evidence the scientist’s report that showed the 

purity testing confirmed the large amount of packaged methamphetamine to be at least 31 grams of actual, undiluted 

methamphetamine. During closing argument, the State noted 
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that this amount of methamphetamine would be about 170 

doses of methamphetamine and that a simple user would not 

have that much with them at any given time.

3. Convictions and Sentences

On this evidence, the jury found Schwaderer guilty of possession with intent to deliver methamphetamine, at least 28 

grams but less than 140 grams; possession of drug money; 

and false reporting. The court sentenced Schwaderer to concurrent sentences of 10 to 15 years’ imprisonment for possession with intent to deliver, 2 to 2 years’ imprisonment for 

possession of drug money, and 1 to 1 year’s imprisonment for 

false reporting.

Schwaderer timely appealed, and we moved the appeal to 

our docket.1

III. ASSIGNMENTS OF ERROR

Schwaderer alleges, restated, that (1) the district court 

erred in (a) admitting testimony regarding the weight of the 

methamphetamine, (b) admitting the notebooks and notepads seized from Schwaderer’s vehicle into evidence, (c) its 

instructions to the jury, and (d) admitting expert testimony; 

(2) he received ineffective assistance of counsel “as a result 

of the acts and omissions of . . . trial counsel”; (3) there was 

insufficient evidence; and (4) the sentences imposed were 

excessive.

IV. STANDARD OF REVIEW

[1] An appellate court reviews the trial court’s conclusions 

with regard to evidentiary foundation and witness qualification for an abuse of discretion.2

[2] Apart from rulings under the residual hearsay exception, 

an appellate court reviews for clear error the factual findings 

1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).

2 State v. Richardson, 285 Neb. 847, 830 N.W.2d 183 (2013).
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underpinning a trial court’s hearsay ruling and reviews de 

novo the court’s ultimate determination to admit evidence 

over a hearsay objection.3

[3] Whether jury instructions are correct is a question of law, 

which an appellate court resolves independently of the lower 

court’s decision.4

[4,5] Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law.5

 In 

reviewing claims of ineffective assistance of counsel on direct 

appeal, an appellate court decides only questions of law: Are 

the undisputed facts contained within the record 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?6

[6] In reviewing 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.7

[7] We will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.8

V. ANALYSIS

1. Weight of Methamphetamine

Schwaderer first alleges that the district court erred by 

allowing testimony of the weight of the methamphetamine 

found on Schwaderer. He argues that such testimony should 

have been excluded because it was based on hearsay, lacked 

3 State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).

4 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).

5 State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).

6 Id.

7 State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016).

8 Id.
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sufficient foundation, and violated his right of confrontation. 

He suggests that the witness lacked personal knowledge of 

the calibration because she testified that an outside company 

calibrates the scales twice a year. But, he does not account for 

the same witness’ testimony as to the other procedures used to 

verify the accuracy and reliability of the scales.

[8] To sustain a conviction based on information derived 

from an electronic or mechanical measuring device, there must 

be reasonable proof that the measuring device was accurate and 

functioning properly.9 And there was.

Assuming that it was error to allow the witness to testify 

to the calibration done by an outside company, such error was 

harmless, because the accuracy of the scales had already been 

established. The witness provided sufficient foundation of personal knowledge concerning calibration procedures performed 

by the laboratory and the witness herself. She testified that she 

personally used a known weight to measure the accuracy and 

variability of the scales used to weigh the methamphetamine. 

She further testified that she would use a known weight on a 

daily and monthly basis to check the accuracy of the scales. 

Though she did not classify such procedures as “calibration,” 

we agree with the district court that the procedures met the 

definition of calibration and were sufficient to show the accuracy of the scales.

The testimony provided identified the time period during 

which the scales were tested against known weights and established that the scales were operating correctly. Therefore, there 

was sufficient foundation regarding the calibration of the scales 

and the district court did not err in allowing the witness to testify to the weight of the methamphetamine.

2. Notebooks and Notepads

Schwaderer next assigns that the district court erred in 

admitting the notebooks and notepads found in Schwaderer’s 

vehicle into evidence because they were inadmissible hearsay 

9 State v. Richardson, supra note 2.
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and were not properly authenticated. Although we have not 

confronted such records, numerous courts have.10 And we follow their reasoning.

(a) Hearsay

Schwaderer alleges that the notebooks and notepads were 

inadmissible hearsay because they “were received for the truth 

of the matter asserted by the declarants,”11 who Schwaderer 

suggests were the testifying officers. We disagree and note 

that this argument relies on a mistaken understanding of the 

definition of hearsay.

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

declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.”12 Therefore, 

the declarant is the author of the writings contained within 

the notebooks and notepads—not the officers testifying to the 

seizure and contents of the notebooks and notepads. And, the 

truth of the matter asserted refers to the statements made by 

the declarant—not the professed reason for why the statements are offered into evidence.

The notebooks and notepads appeared to be “owe notes” 

or ledgers evidencing the exchange of money for various 

10 See, e.g., United States v. Southard, 700 F.2d 1 (1st Cir. 1983) (documents 

containing records of bets not hearsay as proof of scope of defendant’s 

gambling operations), cert. denied sub nom. Ferris v. United States, 464 

U.S. 823, 104 S. Ct. 89, 78 L. Ed. 2d 97; United States v. Wilson, 532 F.2d 

641 (8th Cir. 1976) (notebooks containing writings related to various drug 

transactions not hearsay as proof of character and use of place in which 

notebooks were found), cert. denied 429 U.S. 846, 97 S. Ct. 128, 50 L. Ed. 

2d 117; Collins v. State, 977 P.2d 741, 746 (Ala. App. 1999) (day planner 

and “drug ledgers” not hearsay as circumstantial evidence that controlled 

substances were distributed on premises); Guerra v. State, 897 P.2d 447 

(Wyo. 1995) (letter to defendant detailing proposed drug transaction not 

hearsay as circumstantial evidence that defendant deals in controlled 

substances).

11 Brief for appellant at 15.

12 Neb. Rev. Stat. § 27-801(3) (Reissue 2016) (emphasis supplied).
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amounts of methamphetamine; they included notes with numbers, names, and addresses. The State offered these notebooks 

and notepads not to prove that a listed individual owed or paid 

money for a certain amount of methamphetamine, but to show 

that Schwaderer possessed the methamphetamine for purposes 

of sale and distribution. Thus, the notebooks and notepads 

were not offered to prove the truth of the matter asserted 

therein and did not constitute hearsay.

(b) Authentication

Schwaderer additionally alleges that the notebooks and 

notepads were not properly authenticated, because the State 

did not adduce evidence or testimony establishing “the origin 

of the exhibits, the author of the exhibits, the handwriting in 

the exhibits, or the date the exhibits were created.”13 He concedes in his brief that the State did adduce testimony establishing that the notebooks and notepads were the same as those 

found within his vehicle. But, he argues this testimony was 

insufficient to support a finding that the exhibits were what the 

State claimed them to be.

[9-12] The requirement of authentication or identification as 

a condition precedent to admissibility is satisfied by evidence 

sufficient to support a finding that the matter in question is 

what its proponent claims.14 A proponent of evidence is not 

required to conclusively prove the genuineness of the evidence 

or to rule out all possibilities inconsistent with authenticity.15

If the proponent’s showing is sufficient to support a finding 

that the evidence is what it purports to be, the proponent has 

satisfied the requirement of Neb. Rev. Stat. § 27-901 (Reissue 

2016).16 Under § 27-901(2)(d), a proponent may authenticate 

a document by circumstantial evidence, or its “[a]ppearance, 

13 Brief for appellant at 20.

14 State v. Casterline, 293 Neb. 41, 878 N.W.2d 38 (2016).

15 Id.

16 Id.
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contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”17

The State presented the “owe notes” found within 

Schwaderer’s possession as records of drug transactions. The 

State did not claim that Schwaderer authored the notes or was 

involved in the notated transactions, but merely alleged that 

possession of such notes was consistent with drug dealing. 

As such, the State was not required to prove that Schwaderer 

authored the notes or was involved in the transactions.18

The arresting officer testified that the notebooks and notepads 

presented at trial were the same he seized from Schwaderer’s 

vehicle. And, a witness reviewed the notebooks and notepads 

and explained that the notations and language used within were 

consistent with records of drug transactions, specifically with 

the sale of methamphetamine. This was sufficient to authenticate the notebooks and notepads under § 27-901(2)(d).

Because the notebooks and notepads were not hearsay and 

were properly authenticated, the district court did not err in 

admitting them into evidence.

3. Jury Instructions

[13] Schwaderer assigns error to the court’s cautionary instruction given at trial and to jury instruction No. 8. 

However, he did not properly preserve these errors for review. 

Schwaderer did not object to the cautionary instruction given 

at trial. And, though he did object to jury instruction No. 8, he 

argued that no instruction should reference the exhibits because 

the exhibits should not have been received into evidence. On 

appeal, he may not assert a different ground for his objection 

than was offered at trial.19

[14] We cannot find anything clearly erroneous or unduly 

prejudicial in the instructions given. It is best practice, when 

17 See id.

18 See State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014).

19 State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (2015).
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overruling a hearsay objection on the ground that an outof-court statement is not received for the truth of the matter 

asserted, for a trial court to identify the specific nonhearsay purpose for which the out-of-court statement is relevant 

and probative.20 However, the cautionary instruction that the 

exhibits were not to be considered by the jury for the truth 

of the matter asserted was sufficient. Likewise, the final jury 

instruction was sufficient, because it specifically instructed 

the jury not to consider the exhibits for the truth of the matter asserted.

The district court’s instructions to the jury, read together 

and taken as a whole, correctly advised the jury that the notebooks and notepads were not to be considered for the truth of 

the matter asserted. They correctly stated the law, were not 

misleading, and adequately covered the issues raised by the 

evidence. For these reasons, the district court did not err in its 

instructions to the jury.

4. Expert Testimony

Schwaderer next alleges that the witness who previously 

worked with the narcotics unit was not an expert witness. He 

argues that the witness was not properly qualified and that 

the court did not follow the proper procedure in determining 

whether expert testimony was admissible. The State argues that 

Schwaderer waived this argument. We agree.

[15] Failure to make a timely objection waives the right 

to assert prejudicial error on appeal.21 At trial, Schwaderer 

continuously objected to the witness’ testimony on foundation and relevance grounds and challenged the qualifications 

of the witness during closing argument. But, he never specifically objected to the witness’ qualification as an expert 

or asked the court to make specific findings as to the witness’ qualifications. And, he cannot assert a new ground for 

20 See State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).

21 State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
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his objection to the witness’ testimony for the first time on 

appeal.22 Therefore, Schwaderer waived his right to assert this 

assignment of error.

5. Ineffective Assistance

of Counsel Claims

(a) Preliminary Matters

[16,17] Schwaderer is represented on direct appeal by different counsel than the counsel who represented him at trial. 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.23 An ineffective assistance 

of counsel claim is raised on direct appeal when the claim 

alleges deficient performance with enough particularity for 

(1) an appellate court to make a determination of whether the 

claim can be decided upon the trial record and (2) a district 

court later reviewing a petition for postconviction relief will 

recognize whether the claim was brought before the appellate court.24

[18] The fact that an ineffective assistance of counsel claim 

is raised on direct appeal does not necessarily mean that it can 

be resolved.25 The determining factor is whether the record is 

sufficient to adequately review the question.26

Schwaderer asserts several claims of ineffective assistance 

of counsel. A few of his claims overlap and have been combined and restated for review. Schwaderer alleges that he 

received ineffective assistance of counsel when trial counsel 

failed to (1) renew his motion to suppress at trial, (2) obtain 

22 See State v. Samayoa, supra note 19.

23 State v. Loding, ante p. 670, ___ N.W.2d ___ (2017).

24 Id.

25 State v. Parnell, supra note 5.

26 Id.
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independent testing and weighing of the methamphetamine, 

(3) request a preliminary hearing and specific findings on the 

qualifications of the State’s expert witness, and (4) object to 

the State’s closing argument, which was inconsistent with the 

limiting instruction on exhibits 11 through 15.

The record is insufficient to address his second claim concerning the failure to obtain independent testing and weighing 

of the methamphetamine, but the record is sufficient to resolve 

the remaining three claims.

(b) Strickland Analysis

[19] To establish a right to postconviction relief because 

of counsel’s ineffective assistance, the defendant has the burden, in accordance with Strickland v. Washington,

27 to show 

that counsel’s performance was deficient; that is, counsel’s 

performance did not equal that of a lawyer with ordinary training and skill in criminal law.28 Next, the defendant must show 

that counsel’s deficient performance prejudiced the defense in 

his or her case.29 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.30 A court may address the two prongs of this test, 

deficient performance and prejudice, in either order.31

(i) Failure to Renew 

Motion to Suppress

Schwaderer alleges that his trial counsel was ineffective for 

failing to renew his motion to suppress at trial and thus waiving the issues presented in his motion to suppress. However, he 

cannot show deficient performance or prejudice on this claim.

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

(1984).

28 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).

29 Id.

30 Id.

31 Id.
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Schwaderer’s motion to suppress alleged that the warrantless stop, detention, and search of Schwaderer and his vehicle 

were unlawful. The evidence presented at the motion to suppress hearing established that the arresting officer identified 

Schwaderer before making the stop and that the arresting officer was advised that Schwaderer had a suspended license. The 

officer thus had reasonable suspicion to initiate the stop.

Once stopped, the officer approached Schwaderer, identified 

himself as law enforcement, and asked Schwaderer for identification. Schwaderer claimed he had no identification and, 

when asked to confirm his name, claimed to be his brother, 

“William Schwaderer.” Because he knew this to be false 

based on the information within the Nebraska Criminal Justice 

Information System, the officer requested another officer in 

the area to come and assist him in detaining and investigating Schwaderer.

The arresting officer asked Schwaderer to exit the vehicle 

to perform a safety pat down, after which he noticed what 

appeared to be a wallet in Schwaderer’s pocket. The officer 

then asked whether Schwaderer had identification in that wallet. At this point, Schwaderer admitted that he was, in fact, 

“Robert Schwaderer” and the arresting officer arrested him for 

driving under suspension and false reporting.

The arresting officer and the assisting officer conducted 

a valid search incident to arrest for contraband and weapons 

before placing Schwaderer in the police cruiser. The search 

yielded items that the arresting officer testified were “common with narcotics use or distribution” and a large amount of 

methamphetamine.

The assisting officer testified that he then conducted a 

search of the vehicle for further evidence of contraband and 

to inventory the contents prior to the vehicle being towed 

away. That search yielded the notebooks and notepads containing records of narcotics sales. Because the contraband 

discovered during a lawful search incident to an arrest provided the probable cause for the further warrantless search of 
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the vehicle, the subsequent search did not violate the Fourth 

Amendment.

[20] As a matter of law, counsel cannot be ineffective for 

failing to raise a meritless argument.32 Because there was no 

merit in the initial motion to suppress, Schwaderer’s counsel 

was not ineffective for failing to renew the motion at trial.

(ii) Failure to Object to Expert 

Witness’ Qualifications

Schwaderer alleges that his trial counsel was ineffective for 

failing to request specific findings and a preliminary hearing 

to determine the qualifications of the State’s expert witness. 

This claim is also without merit because Schwaderer cannot 

show prejudice.

Even if trial counsel had objected to the witness’ qualifications or requested a preliminary hearing, the result would not 

have been different. Under our analysis in State v. Russell,

33

there was sufficient foundation to allow the witness to testify 

to the interpretation of the terms used within the notebooks and 

notepads. The witness’ testimony was rationally based on the 

perception of the witness and the testimony was helpful to the 

determination of a fact in issue.

Because the witness would have qualified as an expert witness, or at the very least would have been allowed to testify to 

the same matters as a lay witness based on his experience and 

perception, Schwaderer was not prejudiced by trial counsel’s 

failure to object to the witness’ qualifications or to request a 

preliminary hearing on the matter.

(iii) Failure to Object to State’s 

Closing Argument

Lastly, Schwaderer alleges that his trial counsel was ineffective for failing to object to the State’s closing argument 

insofar as it was inconsistent with jury instruction No. 8. 

32 Id.

33 State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016).
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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

STATE v. SCHWADERER

Cite as 296 Neb. 932

Again, he cannot show deficient performance or prejudice on 

this claim.

The State’s closing argument referred to the notebooks 

and notepads as “owe notes” and emphasized that the writing 

within was consistent with the distribution of methamphetamine. At no point did the State suggest that the transactions 

notated actually occurred or claimed that the writings were 

proof Schwaderer received the listed amounts of money in 

exchange for methamphetamine. Therefore, the State’s closing argument was not inconsistent with jury instruction No. 8, 

which admonished the jury not to consider the notebooks and 

notepads for the truth of the matters asserted.

Schwaderer’s counsel was not ineffective for failing to 

make a meritless objection to the State’s closing argument. 

Schwaderer has failed to show ineffective assistance of counsel.

6. Remaining Assignments of Error

We have carefully considered Schwaderer’s remaining 

claims—that there was insufficient evidence and that he received 

excessive sentences—and find them to be without merit. He 

premises his claim of insufficient evidence on his arguments 

that certain evidence and testimony should have been excluded 

and asserts that the remaining evidence was insufficient to support the convictions. We have already rejected these arguments. 

He also failed to establish that the district court abused its discretion in imposing his sentences.

VI. CONCLUSION

For the reasons set forth above, we conclude that the district court did not err in allowing the challenged exhibits 

and testimony into evidence or in its instructions to the jury. 

We also conclude that three of the four claims of ineffective 

assistance of counsel are without merit. The record is insufficient to resolve the remaining claim on direct appeal. Because 

Schwaderer’s other assignments of error are without merit, we 

affirm the judgment of the district court.

Affirmed.