- 591 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

State of Nebraska, appellee, v. 

Christine A. Theisen, appellant.

___ N.W.2d ___

Filed July 24, 2020. No. S-19-911.

1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding 

whether to accept guilty pleas, and an appellate court will reverse the 

trial court’s determination only in case of an abuse of discretion.

2. Judges: Appeal and Error. An abuse of discretion exists if the reasons 

or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted 

for disposition.

3. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the claim 

without an evidentiary hearing or whether the claim rests solely on the 

interpretation of a statute or constitutional requirement.

4. Effectiveness of Counsel: Appeal and Error. In reviewing a claim of 

ineffective assistance of trial counsel on direct appeal, an appellate court 

determines as a matter of law whether the record conclusively shows 

that (1) a defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel’s alleged deficient 

performance.

5. Indictments and Informations. An information must inform the accused 

with reasonable certainty of the crime charged so that the accused may 

prepare a defense to the prosecution and, if convicted, be able to plead 

the judgment of conviction on such charge as a bar to a later prosecution 

for the same offense.

6. ____. An information must allege each statutorily essential element of 

the crime charged, expressed in the words of the statute which prohibits 

the conduct charged as a crime or in language equivalent to the statutory 

terms defining the crime charged.

Nebraska Supreme Court Online Library

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

10/16/2020 09:08 AM CDT
- 592 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

7. ____. Where an information alleges the commission of a crime using 

language of the statute defining that crime or terms equivalent to such 

statutory definition, the charge is sufficient.

8. Indictments and Informations: Due Process. When the charging of a 

crime in the language of the statute leaves the information insufficient 

to reasonably inform the defendant as to the nature of the crime charged, 

additional averments must be included to meet the requirements of 

due process.

9. Indictments and Informations: Appeal and Error. An information 

first questioned on appeal must be held sufficient unless it is so defective that by no construction can it be said to charge the offense for 

which the accused was convicted.

10. Indictments and Informations. A complaint or information is fatally 

defective only if its allegations can be true and still not charge a crime.

11. ____. No information shall be deemed invalid for any defect or imperfection which does not prejudice the substantial rights of the defendant 

upon the merits.

12. Conspiracy. Expressly alleging an overt act in furtherance of a conspiracy cannot simply be stating that the parties committed an overt act.

13. ____. The expressed overt act in furtherance of a conspiracy cannot be 

the act of conspiring.

14. Indictments and Informations: Conspiracy. A proper information 

charging conspiracy should indicate the offense which is the object of 

the conspiracy and expressly allege an overt act conducted in furtherance thereof.

15. Pleas. To support a plea of guilty or no contest, the record must establish 

that (1) there is a factual basis for the plea and (2) the defendant knew 

the range of penalties for the crime with which he or she is charged.

16. Criminal Law: Proof. A sufficient factual basis requires that the State 

present sufficient facts to support the elements of the crime charged.

17. Conspiracy. Wharton’s Rule, applied when evaluating conspiracy 

charges, stands for the principle that an agreement by two persons to 

commit a particular crime cannot be prosecuted as a conspiracy when 

the crime is of such a nature as to necessarily require the participation 

of two persons for its commission.

18. ____. The application of Wharton’s Rule is limited to instances where 

the number and identity of persons involved in the conspiracy are the 

same as the number and identity of persons required to commit the 

underlying substantive offense.

19. ____. There is an exception to Wharton’s Rule that provides a conspiracy charge may be filed if more or different people participate in the 

conspiracy than are necessary to commit the substantive offense.
- 593 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

20. Effectiveness of Counsel: Records: Appeal and Error. Whether a 

claim of ineffective assistance of trial counsel can be determined on 

direct appeal depends upon the sufficiency of the record to address 

the claim to determine whether a defense counsel’s performance was 

deficient and whether the defendant was prejudiced by the alleged deficient performance.

21. ____: ____: ____. The record on direct appeal 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.

22. Effectiveness of Counsel: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not 

necessarily mean that it can be resolved.

23. Effectiveness of Counsel: Records: Appeal and Error. The determining factor in deciding whether an ineffective assistance claim can 

be resolved on direct appeal is whether the record is sufficient to 

adequately review the question.

Appeal from the District Court for Madison County: Mark 

A. Johnson, Judge. Affirmed.

Mark E. Rappl for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Papik, and Freudenberg, JJ.

Funke, J.

Christine A. Theisen appeals her plea-based convictions 

of conspiracy to distribute or deliver a controlled substance 

(hydrocodone), conspiracy to distribute or deliver a controlled 

substance (tramadol), and child abuse. Theisen assigns the 

district court erred in accepting her guilty pleas, because the 

charging information contained insufficient allegations of overt 

acts and the factual basis was insufficient under Wharton’s 

Rule to support the conspiracy offenses. Theisen also claims 

she was denied the right to effective assistance of trial counsel, 

based upon a failure to properly inform her of the insufficient 
- 594 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

factual basis and application of Wharton’s Rule and upon trial 

counsel’s conflict of interest with a material witness for the 

State. For the reasons set forth herein, we affirm.

BACKGROUND

Theisen was charged by an amended information with seven 

charges, including: conspiracy to distribute or deliver a controlled substance (hydrocodone), conspiracy to distribute or 

deliver a controlled substance (oxycodone), conspiracy to distribute or deliver a controlled substance (tramadol), tampering 

with evidence, felony child abuse, and two counts of misdemeanor child abuse.

Theisen and the State entered into a plea agreement whereby 

Theisen would plead guilty to conspiracy to distribute or deliver 

hydrocodone and tramadol and to felony child abuse and the 

State would dismiss the remaining charges. This dismissal was 

noted by an interlineated copy of the amended information 

which contained the following remaining allegations:

[Conspiracy to Distribute or Deliver Hydrocodone:] 

Theisen, on or about the 1st day of June, 2016, through the 

23rd day of August, 2018, in Madison County, Nebraska, 

with intent to promote or facilitate the commission of a 

felony offense, did agree with another person or persons 

that they or one or more of them shall engage in or solicit 

the conduct or shall cause or solicit the result specified 

by the definition of the offense of delivery or distribution 

of the controlled substance hydrocodone. Complainant 

further states that [Theisen] or another with whom [she] 

conspired with committed an overt act in furtherance of 

the conspiracy, to wit: [Theisen] was buying and/or selling hydrocodone.

. . . .

[Conspiracy to Distribute or Deliver Tramadol:] 

Theisen, on or about the 1st day of June, 2016 through the 

23rd day of August, 2018, in Madison County, Nebraska, 

with the intent to promote or facilitate the commission 

of a felony, did agree with another person or persons that 
- 595 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

they or one or more of them shall engage in or solicit the 

conduct or shall cause or solicit the result specified by the 

definition of the offense of the delivery or the distribution 

of the controlled substance tramadol. Complainant further 

alleges that [Theisen] or another person with whom [she] 

conspired with committed an overt act in furtherance of 

the conspiracy, to wit: [Theisen] was buying and/or selling tramadol.

. . . .

[Child Abuse:] Theisen, on or about the 1st day of June, 

2016 through the 23rd day of August, 2018, in Madison 

County, Nebraska, did knowingly and intentionally cause 

or permit a minor child, or minor children, specifically 

K.S. to be a) placed in a situation that endangered the 

minor child’s or minor children’s life or physical or mental health; and/or b) cruelly confined or cruelly punished; 

and/or c) deprived of necessary food, clothing, shelter, 

or care; and/or d) placed in a situation to be sexually 

exploited by allowing, encouraging, or forcing such minor 

child to solicit for or engage in prostitution, debauchery, 

public indecency, or obscene or pornographic photography, films, or depictions; and/or e) placed in a situation to be sexually abused as defined in Section 28-319, 

28-319.01, or 28-302.01; and/or f) placed in a situation to 

be a trafficking victim as defined in Section 28-830[.]

The district court was informed of this agreement at a pretrial conference, and the court rearraigned Theisen on the three 

remaining counts, to which Theisen pled guilty. Following 

an advisement of Theisen’s rights, the court asked Theisen 

to explain what gave rise to these charges, to which Theisen 

answered:

Last year in August, Department of Health and Human 

Services became involved in my life, and my children 

were removed because I admitted everything. I — I 

guess the painkillers stemmed from a back injury and I 

became addicted to them, and I was buying and selling 
- 596 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

them to support my habit. There is so much information, 

it’s hard to explain.

In response to the court’s questioning regarding whether 

Theisen was selling hydrocodone and tramadol between the 

dates of June 1, 2016, and August 23, 2018, in Madison 

County, Nebraska, Theisen responded, “Yes.”

The court then asked the State to provide the balance of the 

factual basis for the charges, and the State explained:

In terms of the child abuse, law enforcement officers 

interviewed both the victim, [Theisen’s] mother, as well 

as [Theisen’s] other daughter. I think, approximately, victim was age 17, the other daughter was approximately age 

15, I believe, at the time.

They all confirmed that [Theisen] physically and psychologically abused one daughter in particular over an 

extended period of time. Would hit her, slap her, essentially force her to do, you know, menial tasks around the 

home. Giving her deadlines to get things done rather than 

doing those tasks herself, those type of things.

. . . .

[As to the conspiracy to distribute or deliver hydrocodone and tramadol charges, Theisen] would, as she sort 

of said, she would buy and get painkillers and then sell 

them as well. Additionally, according to her daughter, she 

would actually have them text potential buyers ahead of 

time that the sales would be taking place.

They reported — the daughters reported actually 

receiving threats back from some of those drug dealers 

and purchasers about the sales going on. Additionally, she 

would work with others involved in this ring to buy and 

sell the drugs.

The court found there was a sufficient factual basis and 

accepted Theisen’s guilty pleas. Theisen was sentenced to consecutive terms of 6 to 12 years’ imprisonment for conspiracy to 

distribute or deliver hydrocodone, 1 to 3 years’ imprisonment 
- 597 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

for conspiracy to distribute or deliver tramadol, and 1 to 3 

years’ imprisonment for child abuse.

ASSIGNMENTS OF ERROR

Theisen assigns that the district court erred in accepting 

her guilty pleas to the conspiracy charges, because (1) the 

charging information was insufficient to establish overt acts 

in furtherance of the conspiracy and (2) the factual basis was 

insufficient under Wharton’s Rule to establish participation of 

two or more persons beyond those actions which are necessary for the commission of the underlying offenses. Theisen 

also assigns she received ineffective assistance, because trial 

counsel failed to advise her that under Wharton’s Rule, she 

could not be convicted of conspiracy, and trial counsel had a 

conflict of interest from previous representation of a State’s 

material witness.

STANDARD OF REVIEW

[1,2] A trial court is afforded discretion in deciding whether 

to accept guilty pleas, and an appellate court will reverse the 

trial court’s determination only in case of an abuse of discretion. 1 An abuse of discretion exists if the reasons or rulings of 

a trial judge are clearly untenable, unfairly depriving a litigant 

of a substantial right and denying just results in matters submitted for disposition. 2

[3,4] Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to 

address the claim without an evidentiary hearing or whether 

the claim rests solely on the interpretation of a statute or 

constitutional requirement. 3 We determine as a matter of law 

whether the record conclusively shows that (1) a defense 

counsel’s performance was deficient or (2) a defendant was 

1 State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).

2 State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).

3 State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018).
- 598 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

or was not prejudiced by a defense counsel’s alleged deficient performance. 4

ANALYSIS

Sufficiency of Amended Information

Theisen was charged, by the amended information, with 

conspiracy to distribute or deliver hydrocodone and tramadol. 

Under Neb. Rev. Stat. § 28-202(1) (Cum. Supp. 2018), a person is guilty of criminal conspiracy if, with intent to promote 

or facilitate the commission of a felony:

(a) He [or she] agrees with one or more persons that 

they or one or more of them shall engage in or solicit the 

conduct or shall cause or solicit the result specified by the 

definition of the offense; and

(b) He [or she] or another person with whom he [or 

she] conspired commits an overt act in pursuance of the 

conspiracy.

Neb. Rev. Stat. § 29-2014 (Reissue 2016) specifies that 

the State must allege overt acts in charging conspiracy, by 

stating:

In trials for conspiracy, in cases where an overt act is 

required by law to consummate the offense, no conviction 

shall be had unless one or more overt acts be expressly 

alleged in the indictment, nor unless one or more of the 

acts so alleged be proved on trial; but other overt acts not 

alleged in the indictment may be given in evidence on the 

part of the prosecution.

Theisen assigns the amended information failed to sufficiently allege conspiracy to distribute or deliver hydrocodone 

and tramadol. Specifically, Theisen claims the amended information failed to allege overt acts conducted in furtherance of 

the alleged conspiracy.

[5-8] An information must inform the accused with reasonable certainty of the crime charged so that the accused may 

4 Id.
- 599 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

prepare a defense to the prosecution and, if convicted, be able 

to plead the judgment of conviction on such charge as a bar to 

a later prosecution for the same offense. 5 As such, an information must allege each statutorily essential element of the crime 

charged, expressed in the words of the statute which prohibits 

the conduct charged as a crime or in language equivalent to 

the statutory terms defining the crime charged. 6 Where an 

information alleges the commission of a crime using language 

of the statute defining that crime or terms equivalent to such 

statutory definition, the charge is sufficient. 7 However, when 

the charging of a crime in the language of the statute leaves the 

information insufficient to reasonably inform the defendant as 

to the nature of the crime charged, additional averments must 

be included to meet the requirements of due process. 8

[9-11] We have held that an “‘information first questioned 

on appeal must be held sufficient unless it is so defective that 

by no construction can it be said to charge the offense for 

which the accused was convicted.’” 9 And “‘a complaint or 

information is fatally defective only if its allegations can be 

true and still not charge a crime.’” 10 In addition, “‘[n]o information shall be deemed invalid for any defect or imperfection 

which does not prejudice the substantial rights of the defendant 

upon the merits.’” 11

Under each conspiracy charge, the amended information alleged Theisen “did agree with another person or persons” to “engage in or solicit the conduct or shall cause or 

solicit the result specified by the definition of the offense of 

[delivery or distribution of hydrocodone and tramadol].” The 

5 In re Interest of Jordan B., 300 Neb. 355, 913 N.W.2d 477 (2018).

6 Id.

7 Id.

8 Id.

9 Peterson v. Houston, 284 Neb. 861, 868, 824 N.W.2d 26, 33 (2012).

10 Id.

11 Id.
- 600 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

information further alleged Theisen “or another [person] with 

whom [Theisen] conspired with committed an overt act in furtherance of the conspiracy, to wit: [Theisen] was buying and/

or selling [hydrocodone and tramadol].”

The language used in the charging information modeled 

the statutory language of § 28-202(1)(a) in alleging Theisen 

“did agree” with another person or persons to “engage in or 

solicit the conduct or shall cause or solicit the result specified 

by the definition of the offense.” The information continued 

by naming distribution or delivery of hydrocodone and tramadol as each count’s underlying offense. The information 

likewise modeled the language of § 28-202(1)(b) in alleging 

Theisen “or another [person] with whom [Theisen] conspired” 

committed “an overt act in furtherance of the conspiracy.” 

Accordingly, the information was sufficient to inform Theisen 

that the State was charging her with conspiracy under § 28-202 

and alleging she engaged with others for the distribution or 

delivery of hydrocodone and tramadol.

Theisen further argues that the information was insufficient 

to reasonably inform her as to the nature of the crime by 

operation of § 29-2014. As quoted above, § 29-2014 requires 

a charging document “expressly” allege one or more overt acts 

in furtherance of a conspiracy. Theisen contends that § 29-2014 

required the State to allege an overt action other than the 

underlying offense of distribution or delivery of a controlled 

substance. In support of this proposition, Theisen cites State 

v. Marco 12 and State v. McKay,

 13 a Nebraska Court of Appeals 

unpublished opinion.

[12] Contrary to this argument, neither of these opinions 

held § 29-2014 requires that the expressed overt acts cannot 

be allegations of the underlying crime for which the parties 

conspired. Instead, Marco held that an allegation the defendant “‘or another person with whom he conspired did commit 

12 State v. Marco, 230 Neb. 355, 432 N.W.2d 1 (1988).

13 State v. McKay, No. A-92-057, 1993 WL 13458 (Neb. App. Jan. 26, 1993) 

(not approved for permanent publication).
- 601 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

an overt act,’” without more, failed to expressly allege an 

overt act. 14 The case explained that “expressly” alleging an 

overt act cannot simply be stating that the parties committed 

an overt act. 15

[13,14] Similarly, in McKay, the defendant was charged with 

criminal conspiracy. The State’s information alleged that the 

defendant

“‘agree[d] with one or more persons that they or one or 

more of them would harvest more than one pound of marijuana and he or another person with whom he conspired 

did commit an overt act in pursuance of the conspiracy, 

to-wit: Defendant along with [another person] conspired 

together to harvest and possess more than one pound 

of marijuana.’” 16

The Court of Appeals explained that “[i]t is axiomatic that the 

open, manifest, and apparent conduct or overt act of a conspiracy which tends to show a preexisting conspiracy . . . cannot 

be [the defendant’s and conspirator’s] conspiring together.” 17

Stated another way, the expressed overt act in furtherance of 

the conspiracy cannot be the act of conspiring. 18 Instead, a 

proper information charging conspiracy should indicate the 

offense which is the object of the conspiracy and expressly 

allege an overt act conducted in furtherance thereof. 19

Here, the information explicitly alleged overt acts. In addition to its language mirroring § 28-202(1)(a) and (b) and 

alleging Theisen agreed with others to engage in the underlying offenses, the information also alleged “overt act[s] in furtherance of the conspiracy, to wit: [Theisen] was buying and/

or selling [hydrocodone and tramadol].” These allegations are 

14 Marco, supra note 12, 230 Neb. at 357, 432 N.W.2d at 3.

15 Id.

16 McKay, supra note 13, 1993 WL 13458 at *1.

17 Id. at *2.

18 See id.

19 Id.
- 602 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

sufficient to satisfy the requirement under § 29-2014 that the 

charging document expressly allege an overt act in furtherance 

of the conspiracy.

Because the information sufficiently alleged conspiracy 

under § 28-202 and expressly alleged overt acts pursuant to 

§ 29-2014, the information was sufficient to reasonably inform 

Theisen as to the nature of the crime charged and the district 

court did not err in accepting Theisen’s pleas.

Sufficiency of Factual Basis

Theisen challenges the sufficiency of the factual basis to 

support her convictions of conspiracy to distribute or deliver 

hydrocodone and tramadol. On this assignment, Theisen argues 

the State failed to establish conspiracy under Wharton’s Rule 

by failing to allege participation of two or more persons 

beyond those necessary for the commission of the underlying crimes.

[15,16] To support a plea of guilty or no contest, the record 

must establish that (1) there is a factual basis for the plea and 

(2) the defendant knew the range of penalties for the crime 

with which he or she is charged. 20 A sufficient factual basis 

requires that the State present sufficient facts to support the 

elements of the crime charged. 21

One criminal statute regarding controlled substances explains 

that “it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or 

possess with intent to manufacture, distribute, deliver, or dispense a controlled substance.” 22 Under Neb. Rev. Stat. § 28-401 

(Supp. 2019), subsection (9) currently defines “[d]istribute” as 

“to deliver other than by administering or dispensing a controlled substance” and subsection (12) defines “[d]eliver” as 

“the actual, constructive, or attempted transfer from one person 

20 State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).

21 See id.

22 See Neb. Rev. Stat. § 28-416(1)(a) (Cum. Supp. 2018).
- 603 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

to another of a controlled substance, whether or not there is an 

agency relationship.”

Under § 28-202(1), all that is required for a conviction is 

proof that the agreement was entered into and an overt act in 

furtherance of the conspiracy was committed. 23 The criminal 

act is the agreement itself, and the ultimate act agreed to by the 

conspirators need never take place. 24

[17] In evaluating conspiracy charges, we have applied 

Wharton’s Rule as an exception to conspirator liability. 25 This 

exception stands for the principle that an agreement by two 

persons to commit a particular crime cannot be prosecuted as a 

conspiracy when the crime is of such a nature as to necessarily 

require the participation of two persons for its commission. 26

[18,19] The application of Wharton’s Rule is limited to 

instances where the number and identity of persons involved in 

the conspiracy are the same as the number and identity of persons required to commit the underlying substantive offense. 27

As such, there is an exception to Wharton’s Rule that provides 

a conspiracy charge may be filed if more or different people 

participate in the conspiracy than are necessary to commit the 

substantive offense. 28

Theisen contends that distributing and delivering controlled 

substances necessarily involves multiple people, including the 

sellers and buyers of the product. Because of that necessary 

involvement, Theisen suggests that she could not be convicted 

23 See §§ 28-202 and 29-2014.

24 See id.

25 State v. Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992), disapproved on 

other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999).

26 Id. See Iannelli v. United States, 420 U.S. 770, 95 S. Ct. 1284, 43 L. Ed. 

2d 616 (1975).

27 See Utterback, supra note 25. See, also, State v. Clason, 3 Neb. App. 339, 

526 N.W.2d 673 (1994).

28 See Utterback, supra note 25. See, also, Clason, supra note 27, citing 

Baker v. United States, 393 F.2d 604 (9th Cir. 1968), and People v. Incerto, 

180 Colo. 366, 505 P.2d 1309 (1973).
- 604 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

of conspiracy. In support of her contention, Theisen directs us 

to our holding in State v. Utterback.

 29

In Utterback, the issue on appeal concerned the reliability 

of an informant and analyzed whether an admission by the 

informant that he bought marijuana from a specific individual 

was against his penal interests. Since purchasing marijuana 

was not a statutorily proscribed act in Nebraska, the court 

looked at whether such admission could be used to prosecute for conspiracy to distribute or deliver a controlled substance. Applying Wharton’s Rule, we found that the informant 

could not be charged with conspiracy to distribute or deliver, 

because he was the buyer, a necessary party to the underlying crime.

The instant case is distinguishable from Utterback. Here, the 

factual basis provided by the State sets forth sufficient facts to 

find the participation of conspirators beyond the specific sellers and buyers of the drugs. In the court’s receipt of Theisen’s 

pleas, Theisen confirmed that she had sold hydrocodone and 

tramadol between June 1, 2016, and August 23, 2018. The 

State then explained that Theisen “would actually have [her 

daughters] text potential buyers ahead of time that the sales 

would be taking place,” that “the daughters reported actually 

receiving threats back from some of those drug dealers and 

purchasers about the sales,” and that Theisen “would work with 

others involved in this ring to buy and sell the drugs.” We note 

as well that the police reports contained within the presentence 

investigation report further detail the participation of Theisen’s 

daughters in the overt act of purchasing controlled substances. 

Such participation involved more and different people than 

necessary for the delivery and distribution of hydrocodone 

and tramadol. Accordingly, Wharton’s Rule does not prohibit 

Theisen’s conviction for the conspiracy counts and the district 

court did not err in accepting Theisen’s pleas.

29 Utterback, supra note 25.
- 605 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

Failure to Advise Theisen 

of Wharton’s Rule

Theisen assigns her trial counsel was ineffective for failing 

to properly advise her that Wharton’s Rule prohibited her convictions on the conspiracy charges.

[20,21] Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal depends upon the 

sufficiency of the record to address the claim to determine 

whether a defense counsel’s performance was deficient and 

whether the defendant was prejudiced by the alleged deficient 

performance. 30 We have said 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. 31

For the reasons stated above, Wharton’s Rule did not restrict 

Theisen from being charged and convicted of conspiracy to 

distribute or deliver hydrocodone and tramadol. Therefore, 

Theisen cannot show prejudice from trial counsel’s alleged 

failure to properly advise her on the application of Wharton’s 

Rule and this assignment is without merit.

Conflict of Interest

Theisen assigns she received ineffective assistance due to 

her trial counsel’s representation of a material witness for the 

State. Under this assignment, Theisen claims her counsel “previously represented Brooks Boyer who was a defendant against 

[Theisen] in a divorce action which was filed by [Theisen].” 32

Theisen alleges Brooks Boyer “played a very large role in the 

criminal investigation being initiated against [her], including providing statements and documentary evidence against 

30 See Hood, supra note 3.

31 State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).

32 Brief for appellant at 24.
- 606 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. THEISEN

Cite as 306 Neb. 591

[Theisen].” 33 Citing a long-term attorney-client relationship 

between trial counsel and Boyer, Theisen argues there existed 

an actual conflict of interest which compromised trial counsel’s 

ability to adequately and properly represent Theisen.

[22,23] The fact that an ineffective assistance of counsel 

claim is raised on direct appeal does not necessarily mean that 

it can be resolved. 34 The determining factor is whether the 

record is sufficient to adequately review the question. 35

The record on appeal contains no information as to trial 

counsel’s alleged representation of Boyer or how that previous 

relationship could have affected the representation of Theisen. 

Thus, the record is insufficient to review this assignment on 

direct appeal.

CONCLUSION

The information expressly alleged overt acts in furtherance of the charged conspiracy to distribute and deliver 

hydrocodone and tramadol, and the factual basis was sufficient to satisfy Wharton’s Rule and support Theisen’s guilty 

pleas. Accordingly, we affirm Theisen’s convictions and find 

Theisen’s assignment of ineffective assistance of trial counsel for failure to advise her of Wharton’s Rule to be without 

merit. However, we conclude the record is insufficient to reach 

Theisen’s claim of ineffective assistance due to her trial counsel’s alleged conflict of interest.

Affirmed.

33 Id.

34 State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

35 Id.