- 815 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

State of Nebraska, appellee, v. 

Roy E. Wyrick, appellant.

___N.W.2d___

Filed May 2, 2023. No. A-22-176.

1. Motions to Suppress: Confessions: Constitutional Law: Miranda 

Rights: Appeal and Error. In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that it 

was procured in violation of the safeguards established by the U.S. 

Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 

16 L. Ed. 2d 694 (1966), an appellate court applies a two-part standard 

of review. With regard to historical facts, an appellate court reviews 

the trial court’s findings for clear error. Whether those facts suffice 

to meet the constitutional standards, however, is a question of law, 

which an appellate court reviews independently of the trial court’s 

determination.

2. Evidence: Miranda Rights: Waiver. Statements made during a custodial interrogation in the absence of Miranda warnings and a valid 

Miranda waiver, even if otherwise voluntarily made, are inadmissible.

3. Miranda Rights: Waiver: Confessions: Police Officers and Sheriffs.

To determine whether an accused’s statement was given voluntarily 

and freely, courts examine police conduct under the totality of the circumstances. The analysis is the same to determine the voluntariness of 

a waiver of Miranda rights or a confession: the focus is on the conduct 

of governmental actors, and relevant factors include tactics used by 

police, characteristics known to police that may cause the accused’s 

will to easily be overborne, and details of the interrogation.

4. Miranda Rights: Waiver: Proof: Police Officers and Sheriffs. As a 

predicate to the totality of the circumstances test, there must be a showing of coercive police activity to find that a waiver of Miranda rights is 

not voluntary.

5. Confessions: Mental Competency. A defendant’s mental illness is a 

factor in the totality of the circumstances test when evaluating the voluntariness of a statement.

Nebraska Supreme Court Online Library

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

05/02/2023 08:05 AM CDT
- 816 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

6. Miranda Rights: Waiver. Waiver of a Miranda right is voluntary if it 

is made with the full awareness of both the nature of the right being 

abandoned and the consequences of the decision to abandon it.

7. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is 

the same: An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate 

court is whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

8. Homicide: Intent. Both second degree murder and voluntary manslaughter involve intentionally killing; they are differentiated only by the 

presence or absence of the sudden quarrel provocation.

9. Criminal Law: Intent. A trier of fact may infer that the defendant 

intended the natural and probable consequences of the defendant’s voluntary acts.

10. Homicide: Intent: Weapons. An intent to kill can be inferred from the 

deliberate use of a deadly weapon in a manner reasonably likely to cause 

death.

11. Homicide: Words and Phrases. A sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to 

lose normal self-control.

12. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of 

ineffective assistance of counsel under Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must 

show that his or her counsel’s performance was deficient and that this 

deficient performance actually prejudiced the defendant’s defense.

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

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

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

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

later reviewing a petition for postconviction relief to be able to recognize 

whether a claim was brought before the appellate court.

14. Trial: Constitutional Law: Testimony. A defendant has a fundamental 

constitutional right to testify.

15. Trial: Attorney and Client: Testimony: Waiver. The right to testify 

is personal to the defendant and cannot be waived by defense counsel’s 

acting alone.

16. ____: ____: ____: ____. A trial court does not have a duty to advise the 

defendant of his or her right to testify or to ensure that the defendant 
- 817 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

waived this right on the record. Instead, defense counsel bears the primary responsibility for advising a defendant of his or her right to testify 

or not to testify, of the strategic implications of each choice, and that the 

choice is ultimately for the defendant to make.

17. Trial: Effectiveness of Counsel: Witnesses. The decision whether to 

call a particular witness is a decision for counsel to make as a matter 

of trial strategy, and even if that choice proves unproductive, it will not 

sustain a finding that trial counsel was ineffective without more.

18. Self-Defense. The question of whether a defendant had a reasonable 

and good faith belief in the necessity to use force is a question of fact 

to be determined by a jury and is not to be determined solely by the 

defendant’s own subjective belief in the necessity to use force.

19. Effectiveness of Counsel: Evidence. A reasonable strategic decision to 

present particular evidence, or not present particular evidence, will not, 

without more, sustain a finding of ineffective assistance of counsel.

20. Trial: Evidence: Appeal and Error. The erroneous admission of evidence is not reversible error if the evidence is cumulative and other 

relevant evidence, properly admitted, supports the finding of the trier 

of fact.

21. Trial: Effectiveness of Counsel: Presumptions. Trial counsel is 

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

is a strong presumption that counsel acted reasonably.

22. Sentences: Appeal and Error. An abuse of discretion takes place 

when a sentencing court’s reasons or rulings are clearly untenable and 

unfairly deprive the litigant of a substantial right and a just result.

23. Sentences. When imposing a sentence, a sentencing judge should customarily consider the defendant’s (1) age, (2) mentality, (3) education 

and experience, (4) social and cultural background, (5) past criminal 

record or record of law-abiding conduct, and (6) motivation for the 

offense, as well as (7) the nature of the offense and (8) the amount of 

violence involved in the commission of the crime.

24. ____. The sentencing court is not required to articulate on the record 

that it has considered each sentencing factor or make specific findings 

as to the facts pertaining to the factors or weight given to them.

25. ____. The sentencing court is not limited to any mathematically 

applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing judge’s observations of the defendant’s demeanor and attitude and all the facts and 

circumstances surrounding the defendant’s life.

Appeal from the District Court for Lancaster County: Susan 

I. Strong, Judge. Affirmed.
- 818 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

Joe Nigro, Lancaster County Public Defender, Matthew 

F. Meyerle, and Katherine L. Hoatson, Senior Certified Law 

Student, for appellant.

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

for appellee.

Pirtle, Chief Judge, and Riedmann and Arterburn, 

Judges.

Riedmann, Judge.

I. INTRODUCTION

Roy E. Wyrick appeals his convictions and sentences following a jury trial in the district court for Lancaster County. 

He was convicted of one count of second degree murder and 

one count of use of a deadly weapon to commit a felony. On 

appeal, he argues the district court committed evidentiary 

errors, his trial counsel was ineffective, and his sentences were 

excessive. Having considered his arguments and reviewed the 

record, we affirm his convictions and sentences.

II. BACKGROUND

On July 13, 2020, Wyrick was walking past Jeremy Lane’s 

apartment on his way to visit a friend. Lane was entering the 

front door of the apartment building when Wyrick called over 

to him and they exchanged words. Wyrick then pulled his shirt 

up to reveal the hilt of a gun in his waistband. Lane charged at 

Wyrick, which sparked their first altercation.

Wyrick and Lane fought in the street. Within a minute, 

Wyrick knocked Lane to the ground. Wyrick then turned and 

continued walking down the street. Lane got up and ran into 

his apartment. After roughly 30 seconds, video cameras show 

Lane exiting his apartment building with a knife to pursue 

Wyrick up the street. When Wyrick saw Lane charging toward 

him with a knife, Wyrick picked up three rocks and walked 

toward Lane. Wyrick threw the rocks, but Lane continued to 

approach, and the two began fighting again.
- 819 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

During the second altercation, Wyrick gained possession of 

the knife. He then knocked Lane to the ground again. Video 

from cameras on a nearby building showed Wyrick standing 

over Lane, taking two steps forward, using his left arm to pin 

Lane’s chest to the ground, and reaching his right hand back 

prior to making a thrusting motion. Lane got up but collapsed 

after taking a few steps. Lane died shortly thereafter from a 

single stab wound to the chest. The knife that killed Lane was 

never recovered, but Wyrick admitted to police that he threw it 

in a nearby dumpster.

On July 14, 2020, law enforcement investigators located and 

arrested Wyrick. He was interrogated by the investigators and 

was charged with second degree murder and use of a deadly 

weapon to commit a felony. Following a jury trial, he was 

convicted of both crimes. He was sentenced to 22 to 30 years’ 

imprisonment for the second degree murder conviction and a 

consecutive 4 to 8 years’ imprisonment for the use of a deadly 

weapon conviction. Wyrick now appeals. Additional relevant 

facts are set forth below.

III. ASSIGNMENTS OF ERROR

Wyrick assigns, reordered and restated, that the district court 

erred in (1) denying his motion to suppress his statements to 

investigators, (2) granting the State’s motion in limine to bar 

any evidence that the victim had drugs in his system at the 

time of his death, and (3) finding the evidence was sufficient 

to convict him of second degree murder and use of a deadly 

weapon to commit a felony. He also assigns his trial counsel 

was ineffective and his sentences were excessive.

IV. ANALYSIS

1. Wyrick’s Motion to Suppress

(a) Additional Facts

In May 2020, Wyrick was charged with third degree assault, 

criminal trespass, criminal mischief, and obstruction of a police 

officer. A competency evaluation was ordered as a part of those 
- 820 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

proceedings, and Wyrick was found not mentally competent 

to stand trial. Dr. Jennifer Cimpl-Bohn evaluated Wyrick and 

concluded that Wyrick did not appear capable of meeting the 

stresses of the proceedings without experiencing a breakdown 

in rationality or judgment. Since Wyrick was not mentally 

competent to stand trial, the district court ordered he be committed to a regional center for appropriate treatment until such 

a time as the disability may be removed. However, at the time 

of the order, the regional center did not have any open beds, 

so Wyrick was released until one was available. The altercation 

with Lane occurred while Wyrick was waiting to be admitted 

to the regional center.

After Wyrick’s altercation with Lane and subsequent arrest, 

Investigators Brian Agnew and Trent Petersen interviewed 

Wyrick at the Lincoln Police Department. Agnew began the 

interview by telling Wyrick that although he may have heard 

his rights before, since he had no background on Wyrick, they 

still needed to fully review his Miranda rights. Agnew testified 

that Wyrick was read his Miranda rights and that it appeared 

he understood them before he ultimately waived them.

During questioning, Wyrick recounted what he did on July 

13, 2020, which included spending time with a friend at an 

apartment near the altercation site. Wyrick recalled that he was 

going back to visit that friend when he walked by Lane’s apartment and said something to catch Lane’s attention. Wyrick told 

police he apologized to Lane for a past dispute; a video camera 

at Lane’s apartment showed Wyrick walking past the apartment, getting Lane’s attention, and then lifting his shirt up to 

reveal the hilt of a weapon.

Wyrick first told investigators he had not stabbed Lane 

but later admitted to stabbing him accidentally. He stated 

that immediately after the altercation ended, he ran with the 

knife, apologized to some of the neighbors who were outside 

with their children, and threw the knife away. Then he went 

to Joshua Sanders and Shelly Reikofski’s apartment, which is 

where he often slept since he was homeless. However, after 
- 821 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

telling Sanders that he was in a fight, Sanders did not want him 

staying there, so he ended up staying with Sanders’ neighbor.

Roughly 45 minutes into the 11⁄2-hour interrogation, Wyrick 

mentioned that he was trying to stay out of trouble because 

he was awaiting a bed at a regional center. He told investigators he was “sentenced” to a regional center because he was 

not in a condition to stand trial. Wyrick stated he was diagnosed with schizoaffective disorder and bipolar disorder but 

affirmed that he was taking medication and felt that he managed his symptoms.

Throughout the interrogation, Wyrick appeared aware of 

the consequences of his actions, as he repeatedly asked if he 

was going to jail. When the investigators asked Wyrick if he 

would waive his rights to a search of his phone and for his 

DNA, Wyrick consented after his rights were read to him. At 

the end of the interrogation, Wyrick offered to help police by 

retracing his steps to locate the knife he used to stab Lane; 

however, dumpsters in the area had been emptied, and the 

knife was not recovered.

(b) Standard of Review

[1] In reviewing a motion to suppress a statement based 

on its claimed involuntariness, including claims that it was 

procured in violation of the safeguards established by the U.S. 

Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 

1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a 

two-part standard of review. State v. Guzman, 305 Neb. 376, 

940 N.W.2d 552 (2020). With regard to historical facts, we 

review the trial court’s findings for clear error. Id. Whether 

those facts suffice to meet the constitutional standards, however, is a question of law, which we review independently of 

the trial court’s determination. Id.

(c) Discussion

Wyrick argues that the statements he made to police should 

have been suppressed because he did not voluntarily and freely 
- 822 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

waive his Miranda rights. Wyrick contends, and the State 

agrees, that he was in custody during the interrogation.

[2] Miranda warnings are a prerequisite to interrogation 

and fundamental with respect to the Fifth Amendment privilege. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). 

As applied to state governments through the incorporation 

of the 14th Amendment to the U.S. Constitution, the 5th 

Amendment protects against compelled self-incrimination. 

State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). 

Statements made during a custodial interrogation in the absence 

of Miranda warnings and a valid Miranda waiver, even if otherwise voluntarily made, are inadmissible. State v. Hernandez, 

supra.

In Colorado v. Spring, 479 U.S. 564, 107 S. Ct. 851, 93 L. 

Ed. 2d 954 (1987), the U.S. Supreme Court articulated two 

dimensions for determining whether an individual voluntarily, 

knowingly, and intelligently waived his or her constitutional 

privilege against self-incrimination. First, the waiver must 

have been voluntary, so that it was without intimidation, coercion, or deception. Id. Second, the waiver must have been 

made in full awareness of both the nature of the right waived 

and the consequences of waiving such right. Id. Neither the 

U.S. nor the Nebraska Constitution requires criminal suspects to know and understand every possible consequence of 

waiving the privilege against self-incrimination. Colorado v. 

Spring, supra; State v. Benson, 305 Neb. 949, 943 N.W.2d 

426 (2020).

(i) Waiver Is Voluntarily Made

[3-4] To determine whether an accused’s statement was 

given voluntarily and freely, courts examine police conduct 

under the totality of the circumstances. See State v. Burries,

supra. The analysis is the same to determine the voluntariness 

of a waiver of Miranda rights or a confession: the focus is 

on the conduct of governmental actors, and relevant factors 

include tactics used by police, characteristics known to police 
- 823 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

that may cause the accused’s will to easily be overborne, and 

details of the interrogation. See State v. Hernandez, supra. 

There is no per se rule that invalidates the volunteered statement of a mentally ill defendant. State v. Connelly, 307 Neb. 

495, 949 N.W.2d 519 (2020). As a predicate to the totality of 

the circumstances test, there must be a showing of coercive 

police activity to find that a waiver is not voluntary. See State 

v. Hernandez, supra.

In Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 

L. Ed. 2d 473 (1986), the defendant—who police later discovered to be diagnosed with schizophrenia—approached a 

uniformed police officer and told him that he wished to confess to a murder. When the defendant moved to suppress his 

confession, he presented testimony from a psychiatrist, who 

explained that the defendant was in the throes of a schizophrenic episode and was being directed by voices in his head 

to confess to the murder. Id. The U.S. Supreme Court held 

that mental illness alone could not invalidate a confession, 

especially without a showing of coercion. Id. Additionally, 

the defendant had waived his Miranda rights twice and police 

officers that questioned him reportedly perceived no indication that the defendant was suffering from mental illness. 

Colorado v. Connelly, supra. Ultimately, the Court reasoned 

that a waiver made as a result of moral or psychological pressures that did not include police coercion was not constitutionally invalid. Id.

Here, there was no police coercion, so Wyrick’s waiver 

was voluntary. Akin to the circumstance in Colorado v. 

Connelly, supra, police perceived no indication that Wyrick 

was suffering from mental illness. Although he admitted 

that he was awaiting treatment at the regional center, he 

confirmed that he was on medication and that he thought it 

managed his symptoms. Agnew did not use this information 

to employ tactics designed to overtake Wyrick’s will. Wyrick 

continued the interview after discussing his mental condition, 

and he continued to competently answer questions, provided 
- 824 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

his password so police could access information on his phone, 

and offered to help police locate the knife he used to stab 

Lane. Officers informed Wyrick of his rights, they did not 

make any inducements, and the record reflects that Wyrick 

appeared of sound mind during his interrogation. Therefore, 

without a showing of coercion, Wyrick’s waiver and statement were voluntarily made.

Wyrick argues that Colorado v. Connelly, supra, is distinguishable because in that case, the “defendant was found 

incompetent after his waiver, not before.” Brief for appellant 

at 35 (emphasis omitted). But there is no temporal distinction to be made, as the U.S. Supreme Court held that the 

defendant’s statement remained voluntary in the absence of 

police coercion despite his therapist’s testimony that at the 

time of the statements the defendant was in the throes of a 

psychotic episode. Colorado v. Connelly, supra. It explained 

that suppressing the defendant’s statements to police on the 

sole account of his mental illness would expand the voluntariness requirement “into a far-ranging requirement that courts 

must divine a defendant’s motivation for speaking or acting.” 

Id., 479 U.S. at 165-66. Rather, the Court held that a defendant’s mental condition was relevant to his susceptibility to 

police coercion.

[5] The Nebraska Supreme Court has likewise rejected a 

per se rule that statements made by a mentally ill defendant 

were involuntary. See, e.g., State v. Connelly, 307 Neb. 495, 

949 N.W.2d 519 (2020); State v. Dickson, 223 Neb. 397, 

389 N.W.2d 785 (1986) (holding statement by mentally ill 

defendant is subject to general rule that statement freely and 

voluntarily given without any compelling influences is admissible). A defendant’s mental illness is a factor in the totality 

of the circumstances test. See, Colorado v. Connelly, 479 

U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); State v. 

Connelly, supra.

This standard is further reinforced by the factors laid 

out by both courts, which provide that the totality of the 
- 825 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

circumstances should include characteristics known to police 

that may cause the accused’s will to easily be overborne. See 

State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). 

Mental illness would fall under this factor. Here, investigators 

became aware approximately halfway through the interview 

that Wyrick was awaiting a bed at the regional center because 

he was not in a condition to stand trial. They also knew that 

Wyrick had been diagnosed with schizoaffective disorder and 

bipolar disorder, but Wyrick affirmed that he was taking medication and felt that he managed his symptoms. His responses 

to questions supported this. Investigators did not use this information to engage in tactics that would cause Wyrick’s will to 

be easily overborne, and they did not coerce him.

Applying a totality of the circumstances test, we find that 

Wyrick voluntarily waived his right against self-incrimination.

Wyrick argues police should have known about his criminal 

history and prior order of not competent to stand trial before 

questioning him. Wyrick explains that investigators should 

have known what Wyrick meant when he said he was waiting 

for a bed at the regional center, but they continued questioning him.

Wyrick’s argument asks this court to impose a new standard 

to the waiver analysis under the Fifth Amendment, which 

would be either an actual or a constructive knowledge test 

that would require police to know an accused’s entire mental 

health and criminal background before presenting him or her 

with the rights accorded an accused and the opportunity to 

waive them. The U.S. Supreme Court refused to impose such 

a standard in both Colorado v. Spring, 479 U.S. 564, 107 S. 

Ct. 851, 93 L. Ed. 2d 954 (1987), and Colorado v. Connelly,

supra. To hold otherwise would have required Agnew to 

divine information about Wyrick’s motivation for waiving his 

rights, because Agnew admitted at the beginning of the interrogation that he had no background on Wyrick. The Court 

in Colorado v. Connelly, supra, refused to require a court to 
- 826 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

engage in such divination, and we refuse to impose such a 

standard here.

(ii) Waiver Is Knowingly and Intelligently Made

[6] A waiver is voluntary if it is made with the full awareness of both the nature of the right being abandoned and 

the consequences of the decision to abandon it. See State v. 

Hernandez, supra. The accused must only receive adequate 

Miranda warnings, understand them, and have an opportunity 

to invoke these rights before giving any answers or admissions. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). 

Factors about the accused are relevant to the totality of the 

circumstances, and include the suspect’s age, education, intelligence, prior contact with the authorities, and mental health. 

State v. Connelly, supra.

The evidence shows that Wyrick knowingly and intelligently waived his Miranda rights. Petersen read Wyrick 

his Miranda rights, which Wyrick affirmed he understood 

and waived before signing the waiver. Agnew testified that 

throughout the interrogation, Wyrick appeared to understand 

his rights and answered questions competently and coherently. The taped interrogation shows Wyrick’s answering the 

investigators’ questions and clearly recounting the events from 

the day before, including that there were children present and 

that he apologized to the bystanders as he ran away. When he 

disclosed that he was waiting for a bed at a regional center, 

Agnew followed up with questions to determine his mental 

capacity. Wyrick answered Agnew’s questions, and Agnew 

testified that none of the answers caused him to question 

Wyrick’s competency. Altogether, the totality of the circumstances reveals that Wyrick understood his rights and the consequences of waiving them.

 Wyrick argues his mental health should have received more 

weight in the totality of the circumstances analysis. However, 

it is but one factor to be considered, and when viewing the 

totality of the circumstances, Wyrick appeared to understand 
- 827 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

his rights as read to him and the consequences of waiving 

them. And the district court’s analysis considered the relevant 

factors, including his mental health. Thus, we reject this argument, and we hold that Wyrick’s Fifth Amendment rights were 

voluntarily, knowingly, and intelligently waived.

2. State’s Motion in Limine

(a) Additional Facts

Prior to trial, the State filed a motion in limine to exclude 

any evidence that Lane had drugs or alcohol in his system at 

the time of death. The State argued this evidence was not relevant, was contrary to law, and could confuse the jury.

At the pretrial hearing, the State conceded that Lane had 

drugs in his system at the time of his death but argued that 

using it as evidence could prejudice the jury. Wyrick responded 

by arguing that because Lane had methamphetamine in his 

system at the time of his death, it would explain Lane’s erratic 

behavior and add context to how Wyrick felt during the altercations. Ultimately, the district court took the issue under 

advisement.

The district court later held that the evidence of Lane’s 

intoxication at the time of death should be excluded as irrelevant unless Wyrick could show, outside the presence of the 

jury, that the evidence was relevant to the case and that the 

danger of unfair prejudice did not outweigh the probative value.

(b) Standard of Review

An appellant who has assigned only that the trial court 

erred in denying a motion in limine has not triggered appellate 

review of the evidentiary ruling at trial. State v. Ferrin, 305 

Neb. 762, 942 N.W.2d 404 (2020).

(c) Discussion

Wyrick claims the district court erred by granting the State’s 

motion in limine, which prevented him from showing the jury 

that Lane had drugs in his system at the time of his death. 

Wyrick argues that the presence of drugs or alcohol in Lane’s 
- 828 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

system at the time of his death was relevant to the jury’s 

determination of whether Wyrick was acting in self-defense. 

Wyrick’s contention is that “[w]hether or not Lane was intoxicated by drugs or alcohol” provides “evidence on multiple 

essential elements of the self-defense instruction.” Brief for 

appellant at 38.

A motion in limine is only a procedural step to prevent 

prejudicial evidence from reaching the jury. State v. Schreiner, 

276 Neb. 393, 754 N.W.2d 742 (2008). Under Neb. Rev. Stat. 

§ 27-103 (Reissue 2016), error may not be predicated upon a 

ruling that excludes evidence unless a substantial right of the 

party is affected, and in excluding evidence, the substance of 

the evidence was made known to the judge by offer. Such an 

offer of proof must be made at trial to be preserved for appeal, 

since a motion in limine is not a final ruling on the admissibility of evidence. State v. Ferrin, supra.

At the preliminary hearing, Wyrick’s counsel argued and 

objected to the State’s motion in limine. But at trial, no offer of 

proof was ever made regarding the toxicology reports to show 

that Lane had drugs or alcohol in his system at the time of his 

death. Since a motion in limine is a procedural step and no 

additional offer of proof was made at trial, Wyrick did not preserve the matter for appellate review. See State v. Castaneda, 

287 Neb. 289, 842 N.W.2d 740 (2014).

3. Sufficiency of Evidence

(a) Additional Facts

Eyewitness testimony largely supports the same series of 

events set forth in the statement of facts, and we do not repeat 

it here.

Because the murder weapon was never recovered, the State 

called forensic pathologist Michelle Elieff, who performed the 

autopsy on Lane, to testify to Lane’s cause of death. Elieff 

identified the cause of death as a single knife wound to Lane’s 

chest. She testified the wound was consistent with a stab 

wound, and she estimated the blade that caused the wound was 
- 829 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

longer than 3 inches, because the knife wound measured 31⁄4

inches into Lane’s body and punctured his heart. She explained 

that this type of injury was severe and that medical intervention would likely not have been able to save Lane’s life. She 

also conceded she could not identify what position Lane was 

in when he was stabbed.

None of the trial testimony conclusively established whether 

Lane was standing up or lying down when he was stabbed. 

Jonathan Herrera witnessed the altercation that led to Lane’s 

death but could not specify how it happened, just that Wyrick 

fell on Lane while they were fighting. Another witness testified he watched what he believed to be the last punch of the 

fight while both parties were standing, but later realized when 

he was calling the 911 emergency dispatch service that Lane 

was stabbed. None of the other witnesses saw the second 

altercation.

The State presented video evidence from security cameras 

surrounding the area where the altercations occurred. To support this evidence, the State called a forensic video technician 

employed by the Lincoln Police Department, Jared Minary, 

who had conducted a frame-by-frame analysis of the videos. 

For trial, he created a presentation of the second altercation, 

using software to take 15 pictures per second of video, and 

zoomed in on each relevant frame.

The State originally offered an exhibit that included a shortened video of the incident and two frame-by-frame analyses. 

One of those analyses contained markings by Minary of 

where he believed the men’s arms were during the altercation. Wyrick’s counsel objected, and Minary was questioned 

outside the presence of the jury so the district court could 

determine the validity of Minary’s analysis. Minary explained 

that his analysis required him to break down the footage 

using software, which in turn created pictures from each 

frame of the video. He then zoomed in and marked some of 

those pictures to indicate where Wyrick’s and Lane’s arms 

were to aid the jury in identifying what happened in the 
- 830 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

video. Minary conceded that his analysis was not “perfectly 

accurate.” The district court ultimately allowed the State to 

convert the exhibit into two separate exhibits, one containing 

the frame-by-frame analysis without the arm markings and 

the other analysis (exhibit 34) containing the arm markings. It 

allowed the State to use exhibit 34 with the arm markings for 

demonstrative purposes only.

Back in the presence of the jury, Minary explained his 

process again and discussed how he used his own judgment 

to determine when there was enough clarity in the pictures to 

determine where Wyrick’s and Lane’s arms were. Both videos 

were played in the presence of the jury, and the video without 

the arm markings was received into evidence.

(b) Standard of Review

[7] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. See State v. Keadle, 311 

Neb. 919, 977 N.W.2d 207 (2022). The relevant question for 

an appellate court is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt. Id.

(c) Analysis

(i) Second Degree Murder

Wyrick claims there was insufficient evidence to convict 

him of second degree murder. He contends that there were 

insufficient facts to support that he acted intentionally in stabbing Lane and that there were insufficient facts to support a 

finding the stabbing did not occur upon sudden quarrel.

[8] To prove second degree murder, the State was required 

to show beyond a reasonable doubt that Wyrick caused Lane’s 
- 831 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

death “intentionally, but without premeditation.” Neb. Rev. 

Stat. § 28-304(1) (Reissue 2016). Voluntary manslaughter is a 

lesser degree offense, not a lesser-included offense, of second 

degree murder. State v. Stack, 307 Neb. 773, 950 N.W.2d 611 

(2020). Thus, it is possible to commit second degree murder 

without committing voluntary manslaughter. Id. Both second 

degree murder and voluntary manslaughter involve intentionally killing; they are differentiated only by the presence or 

absence of the sudden quarrel provocation. Id.

[9,10] Second degree murder requires the killing to be 

intentional. § 28-304(1). In the context of a criminal statute, 

intentionally means willfully or purposefully, and not accidentally or involuntarily. State v. Morton, 310 Neb. 355, 966 

N.W.2d 57 (2021). It is a fundamental maxim of criminal law 

that a trier of fact may infer that the defendant intended the 

natural and probable consequences of the defendant’s voluntary acts. Id. Also, an intent to kill can be inferred from the 

deliberate use of a deadly weapon in a manner reasonably 

likely to cause death. State v. Escamilla, 291 Neb. 181, 864 

N.W.2d 376 (2015).

Here, the evidence is sufficient to conclude that Wyrick 

intentionally killed Lane. The intent to kill can be inferred by 

Wyrick’s use of a knife; Elieff determined a knife wound to 

be Lane’s cause of death. Wyrick admitted to taking the knife 

from Lane and admitted to disposing of it after he used it to 

stab Lane. Additionally, after reviewing the video evidence, a 

jury could reasonably determine Wyrick stabbed Lane while 

Lane was on the ground. When we view the evidence in the 

light most favorable to the prosecution, the surveillance videos, 

as well as Minary’s and Elieff’s testimony, provide enough 

evidence for a reasonable trier of fact to find the requisite elements beyond a reasonable doubt.

[11] A sudden quarrel is a legally recognized and sufficient 

provocation which causes a reasonable person to lose normal 

self-control. State v. Smith, 284 Neb. 636, 822 N.W.2d 401 
- 832 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

(2012). The question is whether there existed reasonable and 

adequate provocation to excite one’s passion and obscure and 

disturb one’s power of reasoning to the extent that one acted 

rashly and from passion, without due deliberation and reflection, rather than from judgment. Id. This test is an objective 

one, and for our purposes, the question becomes whether, 

after viewing the evidence in the light most favorable to the 

prosecution, a rational trier of fact could find there was not 

reasonable and adequate provocation to excite one’s passion. 

See id.

Here, a rational trier of fact could find there was not reasonable and adequate provocation to establish a sudden quarrel defense. A rational trier of fact could find beyond a reasonable doubt that after disarming and distancing himself 

from Lane, Wyrick was not adequately inflamed when he 

pinned Lane and stabbed him. Wyrick had taken the knife from 

Lane, Lane was on the ground, and Wyrick still had the means 

to escape. Instead, he stabbed Lane in the chest. Although the 

series of events from Lane’s attack to his stabbing occurred in 

a matter of minutes, there is no firm time requirement in a sudden quarrel defense claim. See State v. Davis, 276 Neb. 755, 

757 N.W.2d 367 (2008) (finding evidence sufficient for second 

degree murder when defendant shot victim roughly 30 seconds 

after initiating party began to walk away).

A rational trier of fact could have found that Wyrick acted 

intentionally in stabbing Lane and that he did not meet the 

elements of a sudden quarrel defense; therefore, there was sufficient evidence to convict him of second degree murder.

(ii) Use of Deadly Weapon

Wyrick claims that the evidence was insufficient to prove 

him guilty of the charge of use of a deadly weapon to commit 

a felony, because the State failed to prove he acted intentionally and not upon sudden quarrel. He does not argue that he 

did not use a deadly weapon to stab Lane. In our analysis 

above, we found that a reasonable juror could have found 
- 833 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

Wyrick stabbed Lane intentionally and not upon sudden quarrel; therefore, we do not revisit that argument here.

Wyrick also argues that “the evidence was overwhelming” 

that he was acting in self-defense. Brief for appellant at 54. 

But he does not assign that the jury erred in rejecting his 

claim of self-defense; nor does he argue it in support of his 

assigned error relating to the sufficiency of the evidence to 

convict him of second degree murder. Because the evidence 

was sufficient to convict him of second degree murder and 

there is no doubt that the murder was accomplished by use 

of a deadly weapon, we reject Wyrick’s argument that the 

evidence was insufficient to convict him of use of a deadly 

weapon to commit a felony.

For purposes of completeness, however, we note that 

Wyrick’s success on a self-defense theory would have required 

a jury to find that Lane threatened or attempted to cause death 

or serious bodily harm to Wyrick, that Wyrick did not provoke 

any threat or use of force by Lane with the intent of using 

deadly force in response, that Wyrick reasonably believed that 

his use of deadly force was immediately necessary to protect 

himself, and that Wyrick either tried to get away or did not 

try because he reasonably did not believe he could do so in 

complete safety. See NJI2d Crim 7.3.

The video offered and received into evidence depicts Lane 

on the ground when Wyrick makes what appears to be a lunging motion at him. Considering the series of events, the fact 

that Wyrick had possession of the knife while Lane lay 5 or 6 

feet from him on the ground, and the size difference between 

the two men, a reasonable jury could have determined that 

Wyrick was not acting in self-defense when he stabbed Lane 

in the chest. In fact, Wyrick admits in his brief on appeal 

that the evidence was insufficient to support an acquittal 

based on self-defense, stating, “Although there was evidence to support some of the elements [of self-defense] from 

other witness testimony, [Wyrick’s] testimony was crucial to 

the jury’s findings on two elements.” Brief for appellant at 
- 834 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

44-45. Accordingly, we find the evidence sufficient to support 

Wyrick’s convictions.

4. Ineffective Assistance of Counsel

(a) Standard of Review

Whether a claim of ineffective assistance of counsel may 

be determined on direct appeal is a question of law. State v. 

Figures, 308 Neb. 801, 957 N.W.2d 161 (2021). In reviewing 

claims of ineffective assistance of counsel on direct appeal, 

an appellate court decides only whether the undisputed facts 

contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by 

counsel’s alleged deficient performance. Id. When the claim is 

raised on direct appeal, the appellant is not required to allege 

prejudice; however, appellants must make specific allegations 

of the conduct that they claim constitute deficient performance 

by trial counsel. Id.

(b) General Principles of Law

[12] Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must 

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

that this deficient performance actually prejudiced the defendant’s defense. State v. Anders, 311 Neb. 958, 977 N.W.2d 

234 (2022). To show counsel’s performance was deficient, a 

defendant must show that counsel’s performance did not equal 

that of a lawyer with ordinary training and skill in criminal 

law. Id. 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.

[13] 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 
- 835 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

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 a claim 

was brought before the appellate court. State v. Stelly, 304 

Neb. 33, 932 N.W.2d 857 (2019). The fact that an ineffective 

assistance of counsel claim is raised on direct appeal does not 

necessarily mean that it can be resolved. State v. Anders, supra. 

The determining factor is whether the record is sufficient to 

adequately review the question. Id. The record is sufficient if it 

establishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, 

or that trial counsel’s actions could not be justified as a part of 

any plausible trial strategy. State v. Stelly, supra.

Here, Wyrick is represented by counsel different from his 

trial counsel. When a defendant is represented by counsel different from his or her trial counsel on direct appeal, the defendant must raise any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the 

record; otherwise, the issue will be procedurally barred in a 

subsequent postconviction proceeding. State v. Golyar, 301 

Neb. 488, 919 N.W.2d 133 (2018).

(c) Failure to Call Wyrick to Testify 

at Motion to Suppress Hearing

Wyrick argues his trial counsel was ineffective because he 

failed to call Wyrick to testify during the motion to suppress 

hearing so he could testify about his current and historical 

mental health, medication compliance, and understanding of 

his Fifth Amendment rights. Furthermore, Wyrick claims his 

trial counsel never discussed with him the possibility of testifying at the hearing.

[14-16] 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. But 

a trial court does not have a duty to advise the defendant of 
- 836 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

his or her right to testify or ensure that the defendant waived 

this right on the record. Id. Instead, defense counsel bears the 

primary responsibility for advising a defendant of his or her 

right to testify or not to testify, of the strategic implications of 

each choice, and that the choice is ultimately for the defendant 

to make. Id.

Wyrick’s claim on direct appeal is raised with enough particularity to allege deficient performance. As described above, 

to have an ineffective assistance of counsel claim on this 

issue, Wyrick’s testimony would have had to show that he was 

coerced into waiving his Miranda rights or that the waiver 

was not knowingly and intelligently made. The record is insufficient to establish whether trial counsel’s performance was 

justified as a part of a plausible trial strategy. Therefore, we are 

unable to address Wyrick’s claim on direct appeal that his trial 

counsel was ineffective for failing to call him to testify at the 

motion to suppress hearing.

(d) Failure to Call Wyrick to Testify at Trial

Wyrick argues his trial counsel failed to adequately explain 

the benefits of testifying at trial, which prevented Wyrick 

from testifying to present his self-defense claim. For the same 

reasons stated above regarding Wyrick’s claim relating to the 

motion to suppress, Wyrick’s claim cannot be resolved on 

direct appeal, because it implicates matters outside of the 

record. See State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 

(2019). Wyrick and the State both acknowledge that this claim 

cannot be resolved on direct appeal. We agree.

(e) Failure to Call Cimpl-Bohn to Testify 

at Motion to Suppress Hearing

Wyrick claims his trial counsel was ineffective for failing to 

call Cimpl-Bohn to testify at the motion to suppress hearing. 

He argues that Cimpl-Bohn’s testimony would have established 

Wyrick’s impaired cognitive functioning, which would have 

established that he did not voluntarily, knowingly, and intelligently waive his rights.
- 837 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

[17] The decision whether to call a particular witness is a 

decision for counsel to make as a matter of trial strategy, and 

even if that choice proves unproductive, it will not sustain a 

finding that trial counsel was ineffective without more. See 

State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014). 

When reviewing trial counsel’s strategic decisions, there is 

a strong presumption that counsel’s actions were reasonable. See State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 

865 (2018).

We determined above that Wyrick’s waiver of his Miranda

rights was made voluntarily because there was no evidence of 

police coercion. Therefore, regardless of Cimpl-Bohn’s testimony, this determination would remain unaffected. However, 

the waiver must also have been made knowingly and intelligently. This requires a determination that the defendant possessed the capacity to understand and act in response to 

the warnings given by an interrogating officer. See State v. 

Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989). Although 

the video of Wyrick’s interrogation and Agnew’s testimony 

support a determination that the waiver was made knowingly 

and intelligently, the record is insufficient to determine what 

Cimpl-Bohn would have testified to in this regard and why trial 

counsel did not call her to testify. Therefore, we are unable to 

address this claim on direct appeal.

(f) Failure to Preserve Issue of 

Lane’s Drug Ingestion

Wyrick claims his trial counsel was ineffective by not preserving the issue of presence of drugs or alcohol in Lane’s 

system at the time of his death and the presence of drug paraphernalia in his apartment for appellate review. Before trial, 

Wyrick’s trial counsel objected to the State’s motion in limine 

that would bar any evidence at trial about drugs in Lane’s 

system at his time of death. Thus, as explained above, to 

preserve Wyrick’s objection to the exclusion of the evidence, 

trial counsel should have objected during the trial and made 
- 838 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

an offer of proof as to the drugs Lane had in his system. Since 

trial counsel failed to make this showing, we did not reach the 

merits of Wyrick’s claim that the court erred in granting the 

State’s motion in limine. He claims that this omission translates to a finding of ineffectiveness of counsel.

[18] Wyrick’s claim is without merit because, even assuming his trial counsel was ineffective for failing to preserve 

the issue of whether Lane had alcohol or drugs in his system 

at the time of death, Wyrick cannot prove it prejudiced him. 

To establish self-defense, a defendant must have a reasonable 

and good faith belief that the force used was necessary. State 

v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), overruled on 

other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 

31 (1998). A defendant’s claim of self-defense is a question of 

fact for the jury. Id. Thus, the question of whether a defendant 

had a reasonable and good faith belief in the necessity to use 

force is a question of fact to be determined by a jury and is 

not to be determined solely by the defendant’s own subjective 

belief in the necessity to use force. Id.

Whether Wyrick believed the use of deadly force was necessary and the reasonableness of that belief if so held were 

to be determined by the jury based upon the actions of Lane. 

These actions were observable to the jury from the video of 

the altercation and supplemented by the testimony of Minary 

and the eyewitnesses. It was Lane’s actions, and not whether 

the actions were drug induced, that determined the validity of 

Wyrick’s self-defense claim. Therefore, even if the jury had 

been informed that Lane had drugs in his system at the time of 

the altercation, Lane’s actions upon which Wyrick predicated 

his claim of self-defense remained the same.

Regarding Wyrick’s claim that counsel was ineffective for 

failing to preserve the issue of drug paraphernalia located in 

Lane’s apartment, this issue was not included in the State’s 

motion in limine. Rather, Investigator Chris Fields testified 

on direct examination that drug paraphernalia was located 

in Lane’s apartment. On cross-examination, defense counsel 
- 839 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

attempted to inquire into the nature of the drug paraphernalia 

and the State objected on the basis of relevancy. Before the 

court made its ruling, counsel met with the court outside the 

presence of the jury to make their arguments. Wyrick’s counsel 

stated that he was not intending to elicit testimony that Lane 

had ingested drugs prior to the altercation; rather, he was 

inquiring only into the nature of the paraphernalia located. The 

court ultimately sustained the relevancy objection.

The absence of an offer of proof by Wyrick’s counsel does 

not constitute ineffective assistance of counsel, because we 

agree with the district court that the evidence sought was irrelevant. Therefore, regardless of the nature of the paraphernalia 

found, such evidence was inadmissible and counsel was not 

ineffective for failing to pursue its admission beyond the manner in which he attempted at trial.

(g) Failure to Advise Wyrick 

of Plea Negotiations

Wyrick claims that prior to trial, his counsel informed him 

that there was a plea offer in which he could plead guilty 

to second degree assault, but he rejected it because counsel 

advised him there was a “‘90 percent’” chance of winning at 

trial. Brief for appellant at 43. Shortly before trial, the State 

and trial counsel acknowledged on the record that there was a 

second plea offer in which Wyrick could plead guilty to manslaughter, but that he had rejected the offer. Wyrick argues his 

counsel never relayed this offer to him. As a result, Wyrick 

claims his counsel was ineffective based upon his failure to 

communicate the manslaughter plea offer, failure to competently advise him regarding the second degree assault plea 

offer, and failure to advise him about the probability of his 

conviction of more serious charges at trial.

Wyrick’s claim cannot be resolved on direct appeal, because 

it implicates matters outside of the record. See State v. Hibler,

302 Neb. 325, 923 N.W.2d 398 (2019). Wyrick and the State 

both acknowledge that this claim cannot be resolved on direct 
- 840 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

appeal. We agree. See State v. Warner, 312 Neb. 116, 977 

N.W.2d 904 (2022) (holding claim of ineffective assistance 

of counsel cannot be resolved when claim arises about conversations with trial counsel where record is devoid of what 

occurred in those conversations).

(h) Failure to Call Mattie McIntosh as Witness

Wyrick argues trial counsel should have called Mattie 

McIntosh—an expert witness in the field of audio and visual 

technology who the district court previously approved for payment—to rebut Minary’s testimony. Essentially, Wyrick contests the validity of Minary’s testimony and claims McIntosh 

could have used her expertise to rebut Minary’s analysis of 

the frame-by-frame video.

[19] A reasonable strategic decision to present particular 

evidence, or not present particular evidence, will not, without 

more, sustain a finding of ineffective assistance of counsel. 

State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014). 

The decision to call a witness is a matter of trial strategy, so 

the pertinent questions are whether failing to call McIntosh 

could not be justified as a plausible trial strategy or failing 

to call McIntosh could not have prejudiced Wyrick. See State 

v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017). 

The record is insufficient to determine either question, as it 

is unclear what McIntosh could have testified to regarding 

Minary’s testimony.

The State argues that the record is sufficient to determine 

that failing to call McIntosh could not prejudice Wyrick. The 

State claims that because no witnesses at trial could definitively say whether Lane was on the ground or standing when 

he was stabbed, there is not a reasonable probability the result 

of the trial would have been different if McIntosh was called 

to testify. The record contradicts this assertion.

The State was allowed to present for demonstrative purposes a frame-by-frame analysis of the altercation in which 

Minary marked what he believed to be the two men’s arms. 
- 841 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

In that analysis, he depicted Lane on the ground at the time 

Wyrick made a stabbing motion at Lane’s chest. Although 

the exhibit was not provided to the jury during deliberations, 

it was played during trial and the State showed portions of 

it again during its closing argument. Wyrick’s counsel provided no expert testimony to contradict Minary’s opinions as 

expressed in the exhibit despite a court order allowing payment for the retention of a video and audio expert.

The record does not reveal whether the defense expert was 

retained, what her opinion was if she was retained, or why 

counsel did not call her to testify. Absent this information, 

we are unable to conclude that Wyrick was not prejudiced 

by counsel’s decision not to call a video and audio expert to 

rebut Minary’s testimony. Accordingly, we cannot address this 

issue on direct appeal.

(i) Failure to Call David Young as Witness

Wyrick argues trial counsel should have called David 

Young—an expert witness in the field of forensic pathology 

who was previously approved for payment by the district 

court—to rebut Elieff’s testimony. Wyrick claims Young would 

have rebutted Elieff’s testimony about the positioning of the 

stab wound, which Wyrick argues would have resolved the 

conflicting testimony about whether Lane was stabbed when 

lying down or standing up.

For the same reasons the record is insufficient to determine 

if trial counsel was ineffective for failing to call McIntosh, the 

record is insufficient to determine if trial counsel was ineffective for failing to call Young.

(j) Failure to Adequately Cross-Examine Agnew

Wyrick assigns his trial counsel was ineffective because 

he failed to adequately cross-examine Agnew at trial about 

Wyrick’s mental state during the interrogation. He argues that 

counsel should have inquired about Agnew’s familiarity with 

Wyrick and Wyrick’s history, what Agnew meant when he 
- 842 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

testified at the suppression hearing that Wyrick “elaborated 

a little bit more” on his stay at the Lincoln Regional Center, 

and what Agnew’s experience was in dealing with incompetent 

persons. He concludes, “The jury had no way of examining 

whether the statements were freely, intelligently, and knowingly waived.” Brief for appellant at 47.

We determine that Wyrick cannot prove prejudice as a result 

of the inquiries he claims counsel should have made. The jury 

was shown a video of the interrogation. In that video, Agnew 

states he had no background on Wyrick; therefore, there was 

no need to inquire on cross-examination what background 

he had on Wyrick. Furthermore, because the jury watched 

the interrogation, it was unnecessary to inquire of Agnew 

how Wyrick further “elaborated” on his stay at the Lincoln 

Regional Center during the interrogation. As Wyrick correctly 

states in his brief, whether the statements were freely, intelligently, and knowingly waived was a determination to be made 

by the jury. Because the jurors had the opportunity to view the 

interrogation, they were able to make that determination independently of any additional cross-examination of Agnew, and 

we fail to see how further questioning would have affected 

that decision.

Wyrick also argues that trial counsel should have made an 

offer of proof about Wyrick’s mental condition at the time 

of interrogation to rebut the State’s contention that his statements were made voluntarily, knowingly, and intelligently. 

However, he did not assign this as error. An error must be 

specifically assigned and argued to be considered by an 

appellate court. State v. Jennings, 312 Neb. 1020, 982 N.W.2d 

216 (2022).

(k) Failure to Object to Fields’ 

Hearsay Testimony

Wyrick argues he was denied his 6th and 14th Amendment 

rights to confront witnesses against him because Fields testified that he was told that Wyrick gave a BB gun located in 
- 843 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

Sanders and Reikofski’s apartment to one of the apartment 

residents after the July 13, 2020, altercation and further testified that one of the witnesses reported that Wyrick appeared to 

be in possession of a handgun at the time of the altercation. He 

claims that trial counsel’s failure to object to Fields’ testimony 

had no reasonable strategic basis and that therefore, it amounts 

to ineffective assistance of trial counsel.

[20] Even assuming that the statements made by Fields 

were inadmissible hearsay, trial counsel’s failure to object 

does not amount to reversible error, because the testimony 

about the BB gun was cumulative. Cumulative evidence means 

evidence tending to prove the same point of which other evidence has been offered. State v. Ramirez, 287 Neb. 356, 842 

N.W.2d 694 (2014). The erroneous admission of evidence is 

not reversible error if the evidence is cumulative and other 

relevant evidence, properly admitted, supports the finding of 

the trier of fact. Id.

There was already properly admitted evidence to support 

Fields’ testimony. Herrera testified that he saw Wyrick with a 

“pistol.” The video evidence shows Wyrick walking by Lane’s 

apartment and lifting up his shirt to show a weapon. Although 

the video does not clearly show the hilt of a gun, Herrera’s testimony supports the finding that Wyrick had the BB gun tucked 

in his waistband. Agnew’s testimony further supports this finding, as he described Wyrick’s motion of lifting up his shirt and 

putting his hand on the object in his waistband indicates that 

person is threatening or trying to intimidate someone—usually 

with a firearm. Overall, there was relevant, properly admitted 

evidence to show Wyrick possessed a BB gun even without the 

hearsay testimony; thus, Wyrick cannot show prejudice resulting from Agnew’s statement that he was told Wyrick had a gun 

at the time of the altercation.

Likewise, Wyrick is unable to prove prejudice from Agnew’s 

testimony that he was told the BB gun found in the apartment had been given to one of the residents by Wyrick after 

the altercation. There was competent evidence to support a 
- 844 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

determination that Wyrick had a gun on him at the time of the 

altercation, and the fact that a gun was located in the apartment does not affect the ultimate determination that Wyrick 

stabbed Lane. We therefore reject this assigned error.

(l) Failures Relating to Exhibit 34

Wyrick makes two arguments to explain how his trial counsel was ineffective regarding exhibit 34, the frame-by-frame 

analysis with arm position markings. First, he claims trial 

counsel was ineffective for not objecting to testimony the State 

elicited from Minary that his frame-by-frame analysis was 

derived from expertise. Second, trial counsel was ineffective 

for not seeking a limiting instruction for exhibit 34.

As explained above, the district court admitted exhibit 34 

for demonstrative purposes only because Minary’s analysis 

was not a recognized scientific method of evaluating video. 

During the State’s examination, the State asked Minary if the 

analysis was completed with his “expert opinion in this line 

of work.” Wyrick claims that trial counsel’s failure to object 

prejudiced him because it allowed Minary to testify under the 

guise of an expert.

[21] The record is insufficient to address Wyrick’s claim. 

The decision whether to object at trial is a part of trial strategy. State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013). 

Trial counsel is afforded due deference to formulate trial 

strategy and tactics, and there is a strong presumption that 

counsel acted reasonably. Id. There is nothing in the record to 

determine whether Wyrick’s trial counsel consciously chose 

not to object as a part of its trial strategy, so we cannot reach 

Wyrick’s claim.

Wyrick also argues that because demonstrative exhibits 

are not substantive evidence, his trial counsel prejudiced 

him by not requesting a limiting instruction for exhibit 34. 

Although demonstrative exhibits are not substantive evidence, 

limiting instructions are generally used when the demonstrative exhibits are sent with the jury for deliberations. State v. 
- 845 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013). In State 

v. Pangborn, supra, the court held that a limiting instruction 

is a valuable protection when the jury can take the exhibit 

into deliberation, but other protections include requiring the 

proponent of the exhibit to lay foundation for its use outside 

the presence of the jury, having the individual who prepared 

the exhibit testify concerning the exhibit, and allowing extensive cross-examination of the individual who prepared the 

exhibit. Additionally, a trial judge possesses broad discretion to make discovery and evidentiary rulings conducive to 

the conduct of a fair and orderly trial, as well as exercising 

reasonable control over the mode and order of interrogating 

witnesses and presenting evidence. Id.

Here, exhibit 34 was not sent with the jury during deliberations. Despite the exhibit’s not being sent into jury deliberations, trial counsel still exercised the same precautions laid 

out in Pangborn. The State was required to lay foundation 

outside the presence of the jury after trial counsel objected 

to Minary’s testimony and exhibit 34. Minary was asked to 

explain at length his process in creating the frame-by-frame 

analysis. Trial counsel also extensively cross-examined 

Minary. Because of trial counsel’s objection and subsequent 

voir dire of Minary, the district court rejected his analysis as expertise and, instead, required the State to separate 

the unmarked and marked versions of the clip, providing 

only the unmarked version to the jury during deliberations. 

Altogether, the record shows Wyrick cannot show prejudice 

resulting from the absence of a limiting instruction.

(m) Failure to Properly Preserve Wyrick’s 

Motion to Suppress

Wyrick argues that if this court finds trial counsel did not 

properly renew his motion to suppress, then we should determine if that failure amounts to ineffective assistance of counsel. 

But the motion to suppress was preserved because trial counsel 

objected to the interview tape at trial. See State v. Montoya, 
- 846 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

305 Neb. 581, 941 N.W.2d 474 (2020). And as addressed 

above, the district court did not err in denying the motion to 

suppress. Therefore, there is no claim to address here.

(n) Failure to Strike Jurors

Wyrick claims his trial counsel was ineffective for failing 

to strike two jurors who stated during voir dire that they had 

personal familiarity with the prosecuting attorneys. One juror 

had met the prosecuting attorney while working at a daycare 

at the prosecuting attorney’s church, and the other worked in 

“IT” for the city of Lincoln. Wyrick argues that both jurors 

were more apt to view the State’s argument as persuasive 

because of this personal familiarity, so not striking the jurors 

was ineffective.

The retention or rejection of a venireperson as a juror is 

a matter of discretion with the trial court. State v. Vela, 297 

Neb. 227, 900 N.W.2d 8 (2017). In State v. Vela, supra, the 

defendant alleged a juror’s relationship with the prosecutor as 

his pastor indicated he could not have been fair and impartial. 

But the Nebraska Supreme Court held that since the juror 

stated during voir dire that his profession as a pastor would 

not affect his decisions as a juror, the district court would not 

have abused its discretion by rejecting a challenge made by the 

defendant’s counsel. Id.

Here, the jurors’ relationship with the prosecuting attorney 

are less personal than the relationship in Vela. Additionally, 

each juror disclosed familiarity with the prosecutors during 

voir dire and were subjected to further inquiry. Each juror 

denied that the relationship would impact the ability to be 

impartial. Thus, Wyrick cannot prove he was prejudiced by 

those serving on the jury.

(o) Failure to Object to Trial Schedule

Wyrick argues scheduling his trial for an aggressive schedule the week before Christmas prejudiced him and undermined 

his due process and constitutional rights. He claims that the 
- 847 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

trial’s timing caused his trial counsel not to cross-examine witnesses or call any witnesses on Wyrick’s behalf.

Wyrick’s claim is without merit, and he cannot show 

prejudice. Trial courts have a wide discretion to ensure the 

timely disposition of cases. State v. Schreiner, 276 Neb. 393, 

754 N.W.2d 742 (2008). The trial began December 17, 2021, 

and the district court told prospective jurors the trial would 

take 2 to 3 days to complete—which it did. Trial then took 

place on December 20 and 21, with jury deliberations beginning and ending on December 22. There is no indication that 

the trial impacted any juror’s holiday. All jurors were asked 

if they had any major commitment that would prevent them 

from serving, and the one juror indicating a major conflict 

was excused.

Wyrick’s counsel was provided an opportunity to present 

evidence following the close of the State’s case, but advised 

the court it would not be calling any witnesses. The jury was 

excused early that day. The record does not support that counsel was precluded from presenting Wyrick’s case due to scheduling pressures or that the ability to cross-examine witnesses 

was affected. The record therefore refutes Wyrick’s assertion 

that the scheduling of his case during the week of Christmas 

had a prejudicial effect on him.

5. Excessive Sentences

(a) Additional Facts

Wyrick was convicted of second degree murder and use of 

a deadly weapon to commit a felony. At the sentencing hearing, Wyrick argued that he acted in self-defense, despite what 

the jury found. Wyrick contended that although he regrets the 

events of that day, he still believes that if he had not done what 

he did that day, he would not be alive. He asked the district 

court to consider all the facts and circumstances when considering its sentence.

The district court noted that while mental health issues 

may have played a role in the altercations, it would not be the 
- 848 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

first time Wyrick has acted in a violent manner. It discussed 

Wyrick’s extensive criminal history and history of violence. 

The district court conceded that it did not believe Wyrick 

intended to kill Lane, but the sentence must reflect the seriousness of the crimes. It then summarized the relevant factors 

it was required to consider by law and determined probation 

would depreciate the seriousness of the crimes committed.

(b) Standard of Review

A sentence imposed within the statutory limits will not be 

disturbed on appeal in the absence of an abuse of discretion 

by the trial court. State v. Blake, 310 Neb. 769, 969 N.W.2d 

399 (2022).

(c) Discussion

Wyrick was sentenced to 22 to 30 years’ imprisonment for 

his second degree murder conviction and 4 to 8 years’ imprisonment for his use of a deadly weapon to commit a felony 

conviction. Second degree murder is a Class IB felony, which 

carries a minimum sentence of 20 years’ imprisonment and a 

maximum sentence of life imprisonment. § 28-304(2); Neb. 

Rev. Stat. § 28-105 (Reissue 2016). Use of a deadly weapon, 

other than a firearm, to commit a felony is a Class II felony, 

which carries a minimum sentence of 1 year’s imprisonment 

and a maximum sentence of 50 years’ imprisonment. Neb. Rev. 

Stat. § 28-1205 (Reissue 2016); § 28-105. Since Wyrick’s sentences are within the statutory guidelines, our review is limited 

to abuse of discretion.

[22] An abuse of discretion takes place when a sentencing 

court’s reasons or rulings are clearly untenable and unfairly 

deprive the litigant of a substantial right and a just result. State 

v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).

[23-25] When imposing a sentence, a sentencing judge 

should customarily consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural 

background, (5) past criminal record or record of law-abiding 

conduct, and (6) motivation for the offense, as well as (7) the 
- 849 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

nature of the offense and (8) the amount of violence involved 

in the commission of the crime. State v. Blake, supra. The 

sentencing court is not required to articulate on the record that 

it has considered each sentencing factor or make specific findings as to the facts pertaining to the factors or weight given to 

them. State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021). 

The sentencing court is not limited to any mathematically 

applied set of factors, but the appropriateness of the sentence 

is necessarily a subjective judgment that includes the sentencing judge’s observations of the defendant’s demeanor and 

attitude and all the facts and circumstances surrounding the 

defendant’s life. Id.

Wyrick was 28 years old at the time of sentencing. He 

dropped out of school after completing the 11th grade. Wyrick 

has been diagnosed with schizoaffective and bipolar disorders. Prior to the altercation that led to the present case, it 

was determined that Wyrick was not competent to stand trial. 

Cimpl-Bohn concluded he was not capable of meeting the 

stresses of trial without experiencing a breakdown in rationality or judgment. During his interview with police, Wyrick 

told investigators he was receiving monthly injections to treat 

his mental health conditions. Six months after Cimpl-Bohn’s 

determination, Wyrick was evaluated again and found competent to stand trial. The presentence investigation report conveys that he appears to be in good physical and mental health 

and is still taking his medications.

Wyrick has a lengthy criminal history beginning as a juvenile. As a juvenile, Wyrick was convicted of assault and injury 

to property belonging to another and was ordered into out-ofhome placement for uncontrollable behavior. Wyrick grew up 

in foster care in California but was eventually adopted by a 

family in Nebraska. At the age of 16, he briefly moved back 

to California to live with his biological family but returned to 

Nebraska shortly thereafter.

As an adult, Wyrick has been convicted multiple times for 

disturbing the peace, trespass, destruction of property, and 
- 850 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

assault-related crimes. Additionally, he admitted regularly 

using marijuana and methamphetamine before his incarceration, but at the time of his presentence investigation, he 

scored a low risk of recidivism for illegal substances given 

the length of time since he had last used drugs or alcohol. 

He estimated that he had been using methamphetamine 

for the past 7 years. When he was arrested, he was homeless and unemployed. The presentence investigation report 

placed Wyrick in the high risk level for recidivism, with high 

risk factors in the categories of criminal history, education/

employment, leisure/recreation, companions, procriminal 

attitude/orientation, and antisocial pattern.

Wyrick’s crime involved stabbing another person during an 

altercation. It is a violent offense. Although the motivation is 

unclear because Wyrick still claims he acted in self-defense, 

the events surrounding the stabbing also show violent tendencies. And Wyrick acknowledges his conduct is what caused 

Lane’s death but minimizes his role by blaming Lane for putting him “through this.”

Wyrick claims that the district court abused its discretion 

in its sentences by not considering all the relevant sentencing 

factors and considering only his criminal history and the seriousness of the offenses. But the district court noted at the sentencing hearing that it had read the presentence investigation 

report and considered Wyrick’s condition. Furthermore, the 

district court is under no duty to explain on the record that it 

considered each factor. See State v. Greer, 309 Neb. 667, 962 

N.W.2d 217 (2021). The district court considered the requisite 

factors; and based upon our review of the record, it did not 

abuse its discretion in sentencing Wyrick.

V. CONCLUSION

For the aforementioned reasons, we affirm Wyrick’s convictions and sentences. The record is insufficient to address 

his claims of ineffective assistance of counsel relating to not 

calling Wyrick to testify at the motion to suppress hearing 
- 851 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. WYRICK

Cite as 31 Neb. App. 815

or at trial, not calling Cimpl-Bohn to testify at the motion 

to suppress hearing regarding his mental state, not properly 

communicating with Wyrick regarding plea offers, not calling 

McIntosh or Young to testify, and failing to object to Minary’s 

testimony; therefore, these claims are preserved.

Affirmed.