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considered on appeal. Butler County Dairy v. Butler County, 

285 Neb. 408, 827 N.W.2d 267 (2013). We therefore decline to 

address this issue.

CONCLUSION

We conclude that Cameron and Amanda failed to timely 

appeal from the orders denying the motions to transfer the 

cases to tribal court. As such, this court is without jurisdiction to address Cameron and Amanda’s argument that the 

juvenile court erred in that respect. Upon our de novo review, 

we find that the State presented clear and convincing evidence that termination of Cameron’s and Amanda’s parental 

rights to Shane, Lena, Hanna, and Jadys was in the children’s 

best interests. Accordingly, we affirm the orders of the juvenile court.

Affirmed.

State of Nebraska, appellee, v. 

John T. Warrack, appellant.

___ N.W.2d ___

Filed January 7, 2014. No. A-13-025.

1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and 

Error. In reviewing a trial court’s ruling on a motion to suppress based on a 

claimed violation of the Fourth Amendment, an appellate court applies a two-part 

standard of review. Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error. But whether those facts trigger or violate Fourth 

Amendment protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. 

Constitution and article I, § 7, of the Nebraska Constitution protect individuals 

against unreasonable searches and seizures by the government. These constitutional provisions do not protect citizens from all governmental intrusion, but only 

from unreasonable intrusions.

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

searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which 

must be strictly confined by their justifications.

4. Constitutional Law: Search and Seizure: Words and Phrases. Although every 

trespass, by definition, invades someone’s right of possession, not every trespass 

violates the Fourth Amendment.
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5. Constitutional Law: Search and Seizure. The Fourth Amendment protects 

people, not places.

6. ____: ____. To determine whether a person has an interest protected by the 

Fourth Amendment, one must question whether the person has a legitimate 

expectation of privacy in the invaded space.

7. ____: ____. A subjective expectation of privacy is legitimate if it is one that 

society is prepared to recognize as reasonable.

8. Police Officers and Sheriffs: Warrants. A police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any 

private citizen might do.

9. Search and Seizure: Streets and Sidewalks. Our society does not reasonably 

expect a sidewalk leading to one’s front door to be private in the absence of evidence to the contrary.

10. 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.

11. Convictions: 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.

12. ____: ____: ____. The relevant question for an appellate court in reviewing a sufficiency of the evidence claim 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.

13. Aiding and Abetting: Proof. Aiding and abetting requires some participation in 

a criminal act which must be evidenced by some word, act, or deed, and mere 

encouragement or assistance is sufficient to make one an aider or abettor; however, no particular acts are necessary, nor is it necessary that the defendant take 

physical part in the commission of the crime or that there was an express agreement to commit the crime.

14. ____: ____. Evidence of mere presence, acquiescence, or silence is not enough to 

sustain the State’s burden of proving guilt under an aiding and abetting theory.

15. Aiding and Abetting: Intent: Liability. When a crime requires the existence of 

a particular intent, an alleged aider or abettor can be held criminally liable as a 

principal if it is shown that the aider and abettor knew that the perpetrator of the 

act possessed the required intent or that the aider and abettor himself or herself 

possessed such.

16. Criminal Law: Intent. The question whether the defendant had the required 

criminal intent is a fact question for the jury.

17. ____: ____. A direct expression of intention by the actor is not required in 

determining criminal intent, because the intent with which an act is committed 

involves a mental process and intent may be inferred from the words and acts of 

the defendant and from the circumstances surrounding the incident.

18. Criminal Attempt. Whether a defendant’s conduct constitutes a substantial step 

toward the commission of a particular crime and is an attempt is generally a question of fact.
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19. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of 

ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that this deficient performance actually prejudiced 

his or her defense. An appellate court may address the two prongs of this test, 

deficient performance and prejudice, in either order.

20. Criminal Law: Effectiveness of Counsel. A trial counsel’s performance was 

deficient if it did not equal that of a lawyer with ordinary training and skill in 

criminal law.

21. Effectiveness of Counsel: Appeal and Error. In addressing the “prejudice” 

component of the test to determine ineffective assistance of counsel, an appellate 

court focuses on whether a trial counsel’s deficient performance renders the result 

of the trial unreliable or the proceeding fundamentally unfair.

22. Effectiveness of Counsel: Proof. To show prejudice in an ineffective assistance 

of counsel claim, the defendant must demonstrate a reasonable probability that 

but for counsel’s deficient performance, the result of the proceeding would have 

been different.

23. Proof: Words and Phrases. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.

24. Effectiveness of Counsel: Proof: Appeal and Error. When an appellant does 

not allege both prongs of an ineffective assistance of counsel claim, deficient 

performance and prejudice, resolution of his or her assertions of ineffective 

assistance of counsel hinges not on the adequacy of the record before the appellate court, but on his or her failure to provide the appellate court with sufficient 

allegations of ineffective assistance of counsel.

25. ____: ____: ____. When an appellant does not sufficiently allege his or her ineffective assistance of counsel claims, an appellate court is constrained to find that 

the assertions of ineffective assistance of counsel are without merit.

Appeal from the District Court for Lancaster County: Karen

B. Flowers, Judge. Affirmed.

Michelle M. Mitchell, of Mitchell Law Office, for appellant.

Jon Bruning, Attorney General, and George R. Love for 

appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

Riedmann, Judge.

I. INTRODUCTION

John T. Warrack appeals from his convictions in the district 

court for Lancaster County on aiding and abetting delivery of 

methamphetamine within 1,000 feet of a school and attempted 

delivery of methamphetamine. He argues that the district 
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court erred in failing to grant his motion to suppress, that 

his foundational objection to certain testimony should have 

been sustained, that the evidence was insufficient to sustain 

the convictions on both counts, and that he received ineffective assistance of counsel. We affirm the convictions in 

all respects.

II. BACKGROUND

Jordan Wilmes is an investigator with the Lincoln-Lancaster 

County narcotics task force. In May 2011, a confidential 

informant (CI) informed Wilmes that an individual with the 

street name “Chicago” was involved with methamphetamine 

sales. The CI provided Wilmes with a telephone number for 

Chicago. The CI placed a recorded call to Chicago on May 

23, indicating that he was looking for an “eight ball” for a 

client. The term “eight ball” refers to one-eighth of an ounce 

of drugs.

In response to the CI’s request, Chicago stated that his “guy” 

could get what the CI wanted for “three and a quarter.” Wilmes 

testified at trial that “three and a quarter” referred to a price 

of $325 for the quantity of drugs requested. Wilmes testified 

that the recorded call was a typical conversation arranging for 

a drug purchase, where the individuals discuss whom the drugs 

are for, a price, and a quantity.

The CI placed another recorded call to Chicago on May 27, 

2011, and indicated that his client was “still looking for that 

ice cream.” The term “ice cream” is a common term for methamphetamine. Chicago asked whether the CI was still looking 

for the same amount, an “eight ball.” The CI confirmed that 

he was.

On May 31, 2011, the CI again placed a recorded telephone call to Chicago. During that call, the CI told Chicago 

that he was going to have his client, “Chris,” who was really 

Wilmes working undercover, contact Chicago. Shortly thereafter, Wilmes, acting as Chris, placed a recorded call to 

Chicago. Wilmes asked Chicago for a “t-shirt” and a “‘T.’” 

These terms represent one-sixteenth of an ounce of drugs. 

Chicago indicated the price for a “T” would be $210. After 

this series of telephone calls, Wilmes understood that he was 
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going to be meeting with Chicago for the purpose of purchasing methamphetamine.

After the telephone calls, Wilmes exchanged text messages 

with Chicago, and they established a lower price for the drug 

and a place to meet. After Wilmes arrived at the agreed-upon 

location, he received a telephone call from Chicago changing 

the location. Wilmes provided a description of his vehicle to 

Chicago, and Chicago asked Wilmes to park at the northeast 

corner of 14th and C Streets and wait for him.

Once Wilmes was parked at the intersection of 14th and C 

Streets, he observed a middle-aged black male and a middleaged white female approaching his vehicle. The male opened 

the passenger door of Wilmes’ vehicle and told Wilmes that 

he was going to have the female “hook [him] up with what 

[he] was trying to get.” Wilmes recognized the man’s voice 

from the telephone calls he had exchanged with the individual 

known as Chicago. The male then left, and the female, later 

identified as Rabbeca Seaman, got into Wilmes’ vehicle.

Seaman told Wilmes her name was “Becca,” and Wilmes 

introduced himself as “Chris.” Wilmes informed Seaman of 

his dealings with Chicago and told her that he was looking to 

acquire “drugs or dope.” Wilmes gave Seaman $200, and she 

left her purse in the vehicle as collateral. Seaman got out of 

the vehicle and entered a house on the southeast corner of 14th 

and C Streets. She returned to the vehicle shortly thereafter and 

gave Wilmes a bag containing a substance later confirmed to 

be methamphetamine.

On June 14, 2011, Wilmes placed another recorded telephone call to Chicago. In the call, Wilmes reminded Chicago 

that he was “[w]hite boy Chris in the green car,” and indicated 

that he was “trying to get something tonight” but that he was 

unable to reach Seaman. Wilmes asked to purchase an “eight 

ball,” and they arranged to meet at the “same place.”

Wilmes arrived at the intersection of 14th and C Streets, 

where a man with a tattoo on his neck that read “Chicago” 

got into Wilmes’ vehicle. It was the same man Wilmes had 

met on May 31, 2011. Warrack directed Wilmes to drive to an 

apartment complex near 14th and D Streets. Wilmes indicated 

that he had $200, and they discussed the quantity that Wilmes 
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wanted to buy. Warrack then asked Wilmes to “front him the 

money” so that he could go purchase the methamphetamine. 

Wilmes asked Warrack to leave collateral to ensure that he 

would return with the methamphetamine, so Warrack gave 

Wilmes a set of keys. Warrack then took the $200, got out 

of Wilmes’ vehicle, and began walking northbound across D 

Street. Wilmes waited for approximately 30 to 45 minutes, but 

Warrack never returned. Wilmes’ subsequent telephone calls to 

Warrack went unanswered.

In early November 2011, Lincoln police officer Timothy 

Cronin was directed to arrest Warrack for the theft of $200 

from Wilmes. On November 11, Cronin and Lincoln police 

investigator Jeff Sorensen were driving in Lincoln, when they 

observed Warrack sitting on the porch of his home. Cronin 

and Sorensen parked their vehicle and approached the residence on foot. Cronin walked up onto the porch and identified 

himself as a police officer. Sorensen was standing either on 

the porch or on the steps leading from the sidewalk up to the 

porch. Cronin asked Warrack to step down off the porch so 

they could talk on the sidewalk, and he did so. Once Warrack 

was on the sidewalk, he was arrested for theft and transported 

to jail.

Warrack was booked into jail and placed in an interview 

room, advised of his Miranda rights, and questioned by Cronin 

and Sorensen. With respect to the May 31, 2011, incident, 

Warrack told the officers that someone named “Chris” had contacted him, looking to purchase an “eight ball” of methamphetamine. Warrack stated that he told Chris that he knew someone 

from whom Chris could purchase methamphetamine, in reference to Seaman. Warrack said that he agreed to meet Chris at 

14th and C Streets and pointed him out to Seaman upon arrival. 

Warrack stated that that was the extent of his involvement and 

commented that Chris called him first, that he only “‘hooked 

[Chris] up with [Seaman],’” and that he “‘never touched anything.’” Cronin testified that Warrack stated two or three times, 

“‘All I did was set it up.’”

The officers also asked Warrack about the June 14, 2011, 

incident, and initially, he denied any involvement. When 

Cronin told Warrack that he had personally observed Warrack 
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meeting with Wilmes, Warrack admitted that he did meet with 

Wilmes but denied taking any money from him. Warrack stated 

to Cronin that he did not sell methamphetamine to Wilmes 

because he knew Wilmes was an undercover officer.

Warrack was subsequently charged with aiding and abetting 

delivery of methamphetamine within 1,000 feet of a school and 

attempted delivery of methamphetamine. Prior to trial, Warrack 

filed a motion to suppress the statements he made to the officers, arguing that the statements were the result of an illegal 

arrest. The district court denied Warrack’s motion, concluding 

that he was lawfully arrested.

A jury trial was held on November 5 and 6, 2012. The jury 

ultimately found Warrack guilty of both offenses, and he was 

sentenced to 3 to 6 years’ imprisonment on count I and a consecutive sentence of 1 to 2 years’ imprisonment on count II. 

Warrack timely appeals to this court.

III. ASSIGNMENTS OF ERROR

Warrack assigns, summarized and renumbered, that the district court erred in (1) overruling his motion to suppress, (2) 

overruling his foundational objection to certain testimony, and 

(3) finding sufficient evidence to sustain the convictions on 

both counts. He also assigns that he received ineffective assistance of counsel.

IV. ANALYSIS

1. Motion to Suppress

[1] Warrack argues that the district court erred when it failed 

to grant his motion to suppress evidence based on an illegal 

arrest. In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

we apply a two-part standard of review. Regarding historical 

facts, we review the trial court’s finding for clear error. But 

whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of 

the trial court’s determination. State v. Alarcon-Chavez, 284 

Neb. 322, 821 N.W.2d 359 (2012).

[2,3] The Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution protect individuals 
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against unreasonable searches and seizures by the government. 

These constitutional provisions do not protect citizens from 

all governmental intrusion, but only from unreasonable intrusions. State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010). 

Warrantless searches and seizures are per se unreasonable 

under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must 

be strictly confined by their justifications. Smith, supra.

[4-7] Although every trespass, by definition, invades someone’s right of possession, not every trespass violates the 

Fourth Amendment. State v. Ramaekers, 257 Neb. 391, 597 

N.W.2d 608 (1999). The “‘“Fourth Amendment protects people, not places.”’” 257 Neb. at 394, 597 N.W.2d at 611 

(emphasis in original) (quoting Katz v. United States, 389 U.S. 

347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). Therefore, to 

determine whether a person has an interest protected by the 

Fourth Amendment, one must question whether the person 

has a legitimate expectation of privacy in the invaded space. 

Ramaekers, supra. A subjective expectation of privacy is 

legitimate if it is one that society is prepared to recognize as 

reasonable. Id.

Warrack cites Florida v. Jardines, ___ U.S. ___, 133 S. 

Ct. 1409, 185 L. Ed. 2d 495 (2013), to argue that Cronin and 

Sorensen effectuated an unlawful arrest when they physically entered and occupied an area immediately surrounding 

his home, which is curtilage and protected by the Fourth 

Amendment. In Jardines, police officers took a drug-sniffing 

dog onto the defendant’s porch and the dog alerted the officers to narcotics inside the home. One of the officers then 

received a warrant to search the residence. The trial court 

granted the defendant’s motion to suppress based upon an 

illegal search.

The U.S. Supreme Court granted certiorari, limited to the 

question of whether the officers’ behavior was a search within 

the meaning of the Fourth Amendment. On appeal, the Court 

confirmed that the porch area where the officers were gathering information is an area that enjoys protection as part of the 

home itself. Despite this protection, tradition in our country 

allows a visitor to approach a home by the front path, knock 
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promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. See Jardines, supra. However, the 

Court found that introducing a trained police dog to explore 

this area in hopes of discovering incriminating evidence was 

“something else.” 133 S. Ct. at 1416. The Court stated that 

“the background social norms that invite a visitor to the front 

door do not invite him there to conduct a search.” Id. Based on 

this finding, the Court concluded that the defendant’s motion to 

suppress was properly granted.

[8] Jardines is distinguishable from the present case. The 

use of the drug-sniffing dog on the defendant’s porch was 

found to be a trespassory invasion because it was being used to 

discover evidence and, thus, constituted a “search” for Fourth 

Amendment purposes. In this case, the officers did not conduct 

a search or seizure on Warrack’s porch. Rather, they merely 

stepped onto the porch to request that Warrack step down to 

the sidewalk, which he did willingly. As the Supreme Court 

iterated in Jardines, “a police officer not armed with a warrant 

may approach a home and knock, precisely because that is ‘no 

more than any private citizen might do.’” 133 S. Ct. at 1416 

(quoting Kentucky v. King, ___ U.S. ___, 131 S. Ct. 1849, 179 

L. Ed. 2d 865 (2011)). As such, the officers’ mere presence on 

Warrack’s porch was permissible.

We conclude that Warrack’s arrest was lawful, because the 

officers were authorized to step onto Warrack’s porch and 

speak with him and Warrack willingly left his porch and was 

arrested on the sidewalk, a location in which he had no reasonable expectation of privacy. In State v. Boysaw, 228 Neb. 

316, 422 N.W.2d 346 (1988), the Nebraska Supreme Court 

upheld the warrantless arrest of the defendant. Based on the 

trial court’s findings of fact, the defendant was inside his 

home when he observed police officers arrive. He went to the 

doorway as the officers came onto the porch, he opened the 

door, and he asked whether he could help them. The officers 

asked the defendant to step outside; the defendant did so and 

was arrested. The trial court determined that although officers 

asked the defendant to step outside, he had not been intimidated into leaving his residence, and that he was not arrested 

until he left the protection of his residence, at which time 
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he no longer had a reasonable expectation of privacy. Upon 

finding support in the record for the trial court’s factual findings, the Supreme Court concluded that the defendant’s arrest 

was lawful.

Likewise, in this case, Warrack was not intimidated into 

leaving his porch and he was arrested in a location where he 

had no reasonable expectation of privacy. Cronin and Sorensen 

asked Warrack to step onto the sidewalk, and he did so cooperatively. The district court found that although the officers 

identified themselves as police officers, they did not draw their 

guns, touch Warrack in any way, or otherwise try to intimidate 

or coerce him. These factual findings are consistent with the 

testimony of Cronin and Sorensen.

[9] Once Warrack was on the sidewalk, he was placed under 

arrest. As the Nebraska Supreme Court recognized in State v. 

Ramaekers, 257 Neb. 391, 597 N.W.2d 608 (1999), our society 

does not reasonably expect a sidewalk leading to one’s front 

door to be private in the absence of evidence to the contrary. 

There is nothing in the record to indicate Warrack attempted 

to make the sidewalk leading to his home private. In fact, 

Cronin testified that he and Sorensen were able to freely walk 

from the sidewalk up to the porch. We therefore conclude that 

Warrack did not have a reasonable expectation of privacy in 

the location at which he was arrested. As such, his arrest was 

lawful, and the district court did not err in denying his motion 

to suppress.

2. Foundational Objection

Lincoln police officer Todd Kozian testified at trial regarding his involvement in this case. Kozian assisted Wilmes in 

measuring the distance from the elementary school located at 

11th and C Streets to the location where the drug transaction 

between Wilmes and Seaman occurred. An aerial map depicting the area from approximately 11th Street to 14th Street and 

A Street to D Street was received into evidence.

Kozian testified that he obtained the measurements using 

a “Lidar” device, which is a laser that measures speed and 

distance. From the northeast corner of 14th and C Streets, the 

location where Wilmes told Kozian the transaction occurred, 
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Kozian was unable to get a clear line of sight to the school 

because there were houses obstructing his view. To get a clear 

view, he moved into the intersection to obtain the distance. At 

trial, he marked the aerial map with a red “x” to show the location where he was standing.

During direct examination, Kozian was asked to use the 

legend on the aerial map to estimate the approximate distance 

from his marked location to the location of the house that 

Seaman entered to purchase the methamphetamine. Warrack 

asserted a foundational objection to the question, which the 

court overruled. Kozian then estimated the distance as approximately 100 feet. On appeal, Warrack claims the district court 

erred in overruling his objection.

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

with regard to evidentiary foundation and witness qualification 

for an abuse of discretion. State v. Richardson, 285 Neb. 847, 

830 N.W.2d 183 (2013).

Warrack cites Richardson to argue that there was insufficient foundation establishing the accuracy of Kozian’s estimate, that Kozian’s ability to estimate distance and the aerial 

map were not compared to a standard, and that there was no 

evidence that the scale of the map was accurate. The principles 

discussed in Richardson apply only to electronic or mechanical 

measuring devices, and Warrack urges us to find that Kozian 

himself and the aerial map were “measuring devices.” We 

decline to do so, because witnesses and maps are not electronic or mechanical. Thus, Richardson is not applicable for 

the issue at hand.

We conclude that the district court did not abuse its discretion in overruling Warrack’s foundational objection to 

Kozian’s estimate. The map from which Kozian estimated 

the distance was offered into evidence by the State on three 

occasions and received each time without objection from 

Warrack. Any concerns Warrack had regarding the accuracy 

of the legend should have been resolved through objection to 

admission of the exhibit, not objection to Kozian’s testimony 

based on the map. Thus, the map was properly before the jury 

as an exhibit and available for the jury’s consideration during 

deliberations. Whether Kozian’s estimated distance using the 
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map’s legend was accurate was simply a matter of whether 

the jury found his testimony credible, and any questions concerning the credibility of a witness are solely for the jury as 

finder of fact to resolve. See State v. Watt, 285 Neb. 647, 832 

N.W.2d 459 (2013). Accordingly, this assignment of error is 

without merit.

3. Sufficiency of Evidence

[11,12] Warrack argues that there was insufficient evidence 

to support his convictions. 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. State v. Watson, 285 Neb. 497, 

827 N.W.2d 507 (2013). 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. Because we have detailed the facts in the 

background section of this opinion, we do not restate them in 

detail below.

(a) Aiding and Abetting

Warrack was charged with aiding and abetting delivery of 

methamphetamine within 1,000 feet of a school, in violation 

of Neb. Rev. Stat. §§ 28-416(4)(a)(ii) (Cum. Supp. 2012) and 

28-206 (Reissue 2008). Section 28-416(4)(a)(ii) prohibits any 

person 18 years of age or older from knowingly or intentionally delivering a controlled substance within 1,000 feet of the 

real property comprising a public elementary school. Section 

28-206 provides that a person who aids, abets, procures, or 

causes another to commit any offense may be prosecuted and 

punished as if he or she were the principal offender.

Warrack claims that the State failed to prove three essential 

elements of the charged offense: (1) that he was “Chicago,” (2) 

that he possessed the required knowledge or intent to commit 

the charged offense, and (3) that the drug transaction occurred 

within 1,000 feet of a school. In general, Warrack argues that 
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616 21 NEBRASKA APPELLATE REPORTS

“unreliable, inconsistent and conflicting testimony” along with 

Kozian’s unreliable estimated distance resulted in the State’s 

failure to meet its burden. Brief for appellant at 43. We reject 

Warrack’s arguments and find that the State adduced sufficient 

evidence so that a rational jury could have found all elements 

of the offense beyond a reasonable doubt.

(i) Identity

Warrack first argues that the evidence was insufficient to 

show that he was the person with whom Wilmes exchanged 

telephone calls and text messages. We conclude the evidence 

was sufficient for a rational jury to find that Warrack was 

“Chicago.”

As set forth above, Wilmes exchanged multiple telephone 

calls and text messages with an individual with the street name 

“Chicago.” When Wilmes arrived at the designated location on 

May 31 and June 14, 2011, he had contact with an individual 

whose voice he recognized as the man on the telephone with 

whom he made arrangements for a drug deal.

Seaman testified that she and Warrack used to be neighbors 

and that she knows him by the names “John,” “Travante,” and 

“Chicago.” She testified that Warrack picked her up on May 

31, 2011, so that she could buy methamphetamine from a man 

named “Jessie” and provide the drugs to Warrack to sell to 

someone else. On the way to Jessie’s house, Warrack was talking on his cell phone, asking the person with whom he was 

speaking what type of vehicle he or she was driving. Seaman 

and Warrack then met up with Wilmes. Warrack told Wilmes 

that Seaman would “hook [him] up,” and Seaman ultimately 

sold methamphetamine to Wilmes. We also note that Warrack 

has a tattoo on his neck that reads “Chicago.”

In addition to the above testimony, Warrack, himself, made 

admissions to Cronin and Sorensen about his conversations 

with someone named “Chris” and the steps he took to meet him 

at 14th and C Streets. Based on the foregoing, we conclude that 

the evidence was sufficient for a rational jury to conclude that 

Warrack was the person who exchanged telephone calls and 

text messages with Wilmes.
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(ii) Knowledge or Intent

[13-15] Warrack also claims the State failed to prove that 

he intended for Seaman to deliver methamphetamine or that 

he knew she intended to do so. Aiding and abetting requires 

some participation in a criminal act which must be evidenced 

by some word, act, or deed, and mere encouragement or assistance is sufficient to make one an aider or abettor; however, 

no particular acts are necessary, nor is it necessary that the 

defendant take physical part in the commission of the crime or 

that there was an express agreement to commit the crime. State 

v. Ramsay, 257 Neb. 430, 598 N.W.2d 51 (1999). Evidence 

of mere presence, acquiescence, or silence is not enough to 

sustain the State’s burden of proving guilt under an aiding and 

abetting theory. Id. When a crime requires the existence of a 

particular intent, an alleged aider or abettor can be held criminally liable as a principal if it is shown that the aider and abettor knew that the perpetrator of the act possessed the required 

intent or that the aider and abettor himself or herself possessed 

such. Id.

Seaman’s testimony that she accepted $200 from Wilmes 

and, in exchange, provided him with methamphetamine constitutes direct evidence that she knowingly or intentionally 

delivered methamphetamine to Wilmes. Because the offense 

requires a specific intent, in order to convict Warrack as an 

aider and abettor, the State was required to prove either that 

he intended to deliver methamphetamine or that he knew 

Seaman possessed such an intent prior to committing the act. 

See id.

[16,17] The question whether the defendant had the required 

criminal intent is a fact question for the jury. State v. Scott, 

225 Neb. 146, 403 N.W.2d 351 (1987), disapproved on other 

grounds, State v. Culver, 233 Neb. 228, 444 N.W.2d 662 

(1989). A direct expression of intention by the actor is not 

required, because the intent with which an act is committed 

involves a mental process and intent may be inferred from the 

words and acts of the defendant and from the circumstances 

surrounding the incident. State v. Curlile, 11 Neb. App. 52, 642 

N.W.2d 517 (2002).
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618 21 NEBRASKA APPELLATE REPORTS

Viewing the evidence in a light most favorable to the State, 

we conclude that there is sufficient evidence for a rational 

jury to find that Warrack intended to deliver methamphetamine or knew that Seaman possessed such an intent. From 

the testimony of Wilmes and Seaman outlined above, the jury 

could infer that the sale of methamphetamine from Seaman to 

Wilmes occurred because Warrack arranged it.

Moreover, the statements Warrack made to Cronin and 

Sorensen after he was arrested provides sufficient evidence that 

Warrack knew Seaman intended to deliver methamphetamine. 

His comments that “‘[Chris] called me first,’” “‘All I did was 

set it up,’” and “‘I hooked him up with [Seaman]’” provide 

sufficient evidence to support the jury’s finding that Warrack 

intended to deliver methamphetamine or knew that Seaman 

possessed such an intent.

(iii) Distance From School

Warrack also alleges that the State failed to prove that 

Seaman delivered methamphetamine within 1,000 feet of a 

school. He argues that the discrepancies between Seaman’s 

and Wilmes’ testimony along with Kozian’s estimated distance 

rendered the evidence doubtful and lacking as to the element of 

“within 1,000 feet of a school.”

Wilmes testified that the drug transaction with Seaman 

occurred on the northeast corner of 14th and C Streets. An 

elementary school is located at 11th and C Streets. Kozian 

attempted to measure the distance from the school to the northeast corner of 14th and C Streets, but he had to move out into 

the intersection in order to have a clear line of sight to the 

school. The distance from the intersection to the northeast corner of the school building was 888 feet. The distance from the 

intersection to the northeast corner of the school property line 

was 623 feet. We conclude that this evidence is sufficient for a 

rational jury to have found that Seaman delivered the methamphetamine to Wilmes within 1,000 feet of a school.

In general, in support of this assignment of error, Warrack 

makes several arguments as to why he believes the evidence 

was insufficient to support his conviction, but what he is 
Decisions of the Nebraska Court of Appeals

STATE v. WARRACK 619

Cite as 21 Neb. App. 604

asking us to do is reweigh the evidence presented to the jury. 

This we cannot do. See State v. Dixon, 282 Neb. 274, 802 

N.W.2d 866 (2011). Viewing the evidence in the light most 

favorable to the State, we conclude that the evidence was 

sufficient for the jury to find Warrack guilty of aiding and 

abetting delivery of methamphetamine within 1,000 feet of 

a school.

(b) Attempted Delivery

[18] Warrack was charged with attempted delivery of methamphetamine in violation of § 28-416(1) and Neb. Rev. Stat. 

§ 28-201 (Cum. Supp. 2010). Section 28-416(1) prohibits any 

person from knowingly or intentionally delivering a controlled 

substance. Under § 28-201(1)(b), a person is guilty of an 

attempt to commit a crime if that person “engages in conduct 

which, under the circumstances as he or she believes them 

to be, constitutes a substantial step in a course of conduct 

intended to culminate in his or her commission of the crime.” 

Whether a defendant’s conduct constitutes a substantial step 

toward the commission of a particular crime and is an attempt 

is generally a question of fact. State v. Babbitt, 277 Neb. 327, 

762 N.W.2d 58 (2009).

Warrack argues that the State failed to prove that he intended 

the result of his actions to be the delivery of methamphetamine, 

if the circumstances were as he believed them to be, and failed 

to prove that he took a substantial step toward that end. He 

claims that it was not possible for him to complete a methamphetamine delivery, because he did not have methamphetamine 

on his person.

We are not persuaded that the absence of methamphetamine 

on Warrack’s person at the time he was in Wilmes’ vehicle 

made it impossible for him to commit the offense. The facts 

reveal that the process by which Warrack delivered methamphetamine was by arranging a meeting via telephone, arriving 

at the agreed-upon location, accepting money either personally or through Seaman, leaving collateral, going elsewhere to 

obtain the methamphetamine, and then returning to deliver the 

drugs to Wilmes.
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620 21 NEBRASKA APPELLATE REPORTS

When we view the evidence most favorable to the State, 

the record shows that Warrack completed all of the above 

steps, with the exception of returning to the vehicle to deliver 

the drugs.

Warrack argues that “[t]heft of money cannot be said to be 

strongly corroborative of a person’s intent to deliver methamphetamine.” Brief for appellant at 50. Theft of money alone 

may not be sufficient evidence from which to infer an intent to 

deliver drugs, but the theft must be viewed in the context of the 

circumstances surrounding this incident. By Warrack’s agreeing to meet with Wilmes after Wilmes indicated he was looking for an “eight ball,” arriving at the agreed-upon location, 

discussing the transaction, and accepting money while leaving 

collateral behind, a jury could find that Warrack intended to 

deliver methamphetamine.

Warrack also claims the State failed to prove that Warrack 

intended to deliver methamphetamine, specifically. Again we 

must look at the facts surrounding the incident and consider 

the totality of the circumstances. When the CI and Warrack 

communicated in May 2011, the CI indicated that his client, 

Chris, was looking for some “ice cream,” a common term 

used to describe methamphetamine. Warrack arranged for the 

delivery of methamphetamine to Wilmes through Seaman. 

When Wilmes contacted Warrack again, on June 14, Wilmes 

indicated that he was looking to “get something” and they 

arranged to meet at the “same place.” According to Wilmes, 

after Warrack got into Wilmes’ vehicle, they “had a conversation regarding methamphetamine.” Wilmes testified that 

Warrack told him that he needed Wilmes to “front him the 

money first to get the methamphetamine and bring it back 

to [Wilmes].” This evidence was sufficient to support the 

jury’s finding that Warrack intended to deliver methamphetamine, specifically.

Based on the foregoing, we conclude that the State adduced 

sufficient evidence so that a rational jury could find that 

Warrack intentionally engaged in conduct that constituted a 

substantial step toward the delivery of methamphetamine. 

Accordingly, this assignment of error is without merit.
Decisions of the Nebraska Court of Appeals

STATE v. WARRACK 621

Cite as 21 Neb. App. 604

4. Ineffective Assistance

of Counsel

[19] Warrack claims that he received ineffective assistance 

of counsel in six respects. To prevail on a claim of ineffective 

assistance of counsel, the defendant must show that counsel’s 

performance was deficient and that this deficient performance 

actually prejudiced his or her defense. An appellate court may 

address the two prongs of this test, deficient performance and 

prejudice, in either order. See State v. Edwards, 284 Neb. 382, 

821 N.W.2d 680 (2012).

[20-23] A trial counsel’s performance was deficient if it did 

not equal that of a lawyer with ordinary training and skill in 

criminal law. Id. In addressing the “prejudice” component of 

the test, an appellate court focuses on whether a trial counsel’s 

deficient performance renders the result of the trial unreliable 

or the proceeding fundamentally unfair. See 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. See id. A reasonable 

probability is a probability sufficient to undermine confidence 

in the outcome. Id.

Warrack alleges that he received ineffective assistance of 

counsel in six respects. His brief on these claims is limited 

to the general argument that trial counsel was ineffective and 

a brief recitation of how his counsel’s performance was deficient. In a conclusory, general statement, Warrack claims that 

these six failures of trial counsel prejudiced him; he does not, 

however, allege how any of these actions prejudiced him or 

how the result would have been different but for his counsel’s 

deficient performance.

[24,25] The issue with respect to these claims is not the sufficiency of the record, but the sufficiency of the allegations. In 

order to prevail on a claim of ineffective assistance of counsel, 

a defendant must show that his or her counsel’s performance 

was deficient and that he or she was prejudiced by such deficiency. See State v. Derr, 19 Neb. App. 326, 809 N.W.2d 520 

(2011). When an appellant does not allege both prongs of 

an ineffective assistance of counsel claim, “resolution of his 
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622 21 NEBRASKA APPELLATE REPORTS

assertions of ineffective assistance of counsel hinge[s] not on 

the adequacy of the record before us, but on his failure to provide this court with sufficient allegations of ineffective assistance of counsel.” Id. at 329, 809 N.W.2d at 523. As we held in 

Derr, when an appellant does not sufficiently allege his or her 

ineffective assistance of counsel claims, we are constrained to 

find that the assertions of ineffective assistance of counsel are 

without merit. Accordingly, we find Warrack’s allegations to be 

insufficient because he fails to allege how he was prejudiced 

by his counsel’s performance.

(a) Failure to Question Jurors 

on Racial Bias

Warrack claims his trial counsel was ineffective for failing 

to question prospective jurors in a manner in which to identify 

any racial bias. He does not identify, however, how this failure 

prejudiced him or how the outcome would have been different 

had his counsel posed such questions. This assertion is therefore meritless.

(b) Failure to Confer and 

Consult With Warrack

Warrack alleges his trial counsel was ineffective for failing to confer and consult with him regarding his case so as to 

allow him to make informed decisions regarding his defense. 

Warrack concedes that the communication between trial counsel and him is not contained in the record, but he does not 

direct our attention to any specific decisions on which he 

was not consulted or explain how this failure prejudiced him. 

Accordingly, we reject this claim.

(c) Failure to Ensure 

Mental Competency

Warrack claims his trial counsel was ineffective for failing 

to ensure his mental competency prior to trial and sentencing. 

He fails to indicate how the result of the proceeding would 

have likely been different but for counsel’s deficient performance. Thus, this assertion has no merit.
Decisions of the Nebraska Court of Appeals

STATE v. WARRACK 623

Cite as 21 Neb. App. 604

(d) Failure to Request Limiting 

Jury Instruction

Warrack alleges his trial counsel was ineffective for failing 

to request a limiting jury instruction regarding each offense. 

Warrack simply explains that trial counsel filed a motion to 

sever the two counts contained in the second amended information, and the district court overruled the motion. He notes 

that trial counsel renewed the motion to sever at the beginning 

of trial, but did not request a limiting jury instruction. Again, 

Warrack failed to allege how he was prejudiced by this action. 

As such, we must reject this claim.

(e) Failure to Obtain Ruling 

on Motion in Limine

Warrack claims his trial counsel was ineffective for failing to obtain a ruling on the State’s motion in limine. Prior 

to trial, the State filed a motion in limine seeking to prohibit Warrack from making any efforts to change or conceal 

the tattoo on his neck. The State also requested the court’s 

permission to photograph the tattoo. Warrack’s trial counsel 

indicated that she was unsure of her position on the request to 

photograph the tattoo, and the court directed her to file either 

an objection or no objection so that the court could issue an 

order. Trial counsel never made either filing, and the State’s 

photographs of the tattoo were received into evidence at trial 

with no objection.

As discussed above, there was sufficient evidence presented 

for the jury to find that Warrack was “Chicago.” More important, in his ineffectiveness claim, Warrack does not allege how 

he was prejudiced by the introduction of the photographs. 

Accordingly, this assertion is without merit.

(f) Failure to File Motion 

for New Trial

Warrack alleges his trial counsel was ineffective for failing 

to file a motion for new trial. He notes that trial counsel moved 

for a dismissal of both counts or, in the alternative, a directed 

verdict of acquittal on both counts based upon insufficiency 

of the evidence, yet failed to file a motion for new trial based 
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624 21 NEBRASKA APPELLATE REPORTS

upon the same grounds. As we previously concluded, the evidence was sufficient to sustain Warrack’s convictions on both 

counts. Because Warrack fails to allege how he was prejudiced 

by this action, we reject this claim.

V. CONCLUSION

We conclude Warrack’s arrest was lawful, because he was 

not arrested until he had willingly stepped from his porch onto 

the sidewalk and he had no reasonable expectation of privacy 

on the sidewalk. Therefore, the district court did not err in 

denying his motion to suppress. In addition, the court properly overruled Warrack’s foundational objection to Kozian’s 

testimony, because Kozian’s credibility was a matter solely 

for the jury to determine. We also find that the State adduced 

sufficient evidence to support Warrack’s convictions on both 

counts. Finally, we reject all six of Warrack’s claims of ineffective assistance of counsel because he failed to allege how 

he was prejudiced by trial counsel’s actions. Accordingly, we 

affirm Warrack’s convictions for aiding and abetting delivery of methamphetamine within 1,000 feet of a school and 

attempted delivery of methamphetamine.

Affirmed.

In re Interest of Athina M., a child

under 18 years of age.

State of Nebraska, appellee, v. 

Darwin M., appellant.

___ N.W.2d ___

Filed January 7, 2014. No. A-13-189.

1. Juvenile Courts: Evidence: Appeal and Error. Cases arising under the 

Nebraska Juvenile Code are reviewed de novo on the record, and an appellate 

court is required to reach a conclusion independent of the trial court’s findings. 

However, when the evidence is in conflict, the appellate court will consider and 

give weight to the fact that the lower court observed the witnesses and accepted 

one version of the facts over the other.

2. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012) provides 

11 separate conditions, any one of which can serve as the basis for the termination of parental rights when coupled with evidence that termination is in the best 

interests of the child.