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State of Nebraska, appellee, v.

Abdul F. Vann, appellant.

___ N.W.2d ___

Filed June 12, 2020. No. S-18-928.

1. Criminal Law: Convictions: Evidence: Appeal and Error. When 

reviewing a criminal conviction for sufficiency of the evidence to 

sustain the conviction, 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.

2. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A 

defendant who moves for dismissal or a directed verdict at the close of 

the evidence in the State’s case in chief in a criminal prosecution and 

who, when the court overrules the dismissal or directed verdict motion, 

proceeds with trial and introduces evidence, waives the appellate right 

to challenge correctness in the trial court’s overruling the motion for 

dismissal or a directed verdict but may still challenge the sufficiency of 

the evidence.

3. Criminal Law: Evidence: Appeal and Error. When a criminal defendant challenges the sufficiency of the evidence upon which a conviction 

is based, 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.

4. Evidence: Waiver: Appeal and Error. A party who fails to make a 

timely objection to evidence waives the right on appeal to assert prejudicial error concerning the evidence received without objection.

5. Convictions: Presumptions: Right to Counsel: Waiver: Proof.

Convictions obtained after Gideon v. Wainwright, 372 U.S. 335, 83 S. 

Ct. 792, 9 L. Ed. 2d 799 (1963), are entitled to a presumption of regularity such that records of conviction are admissible unless the defendant can show that he or she did not have or waive counsel at the time 

of conviction.

Nebraska Supreme Court Online Library

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

07/17/2020 08:07 AM CDT
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Appeal from the District Court for Sarpy County: Stefanie 

A. Martinez, Judge. Affirmed.

Thomas P. Strigenz, Sarpy County Public Defender, and 

Mitchell Sell, Senior Certified Law Student, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Papik, J.

Abdul F. Vann appeals his conviction for possession of 

a deadly weapon by a prohibited person. Vann argues that 

his conviction should be overturned because the State did 

not introduce evidence affirmatively showing that he had or 

waived counsel at the time of his prior felony conviction. 

We, however, find that there was sufficient evidence to support Vann’s conviction and that the district court did not err 

in admitting into evidence certified court records showing that 

Vann had counsel at the time he was sentenced for his prior 

conviction, but was silent as to whether he had counsel at the 

time he entered his plea. Finding no error, we affirm.

BACKGROUND

This case arises out of an incident in which a law enforcement officer found a set of brass knuckles in Vann’s pocket 

during a search. This led the State to bring charges against 

Vann for possession of a deadly weapon by a prohibited person 

and carrying a concealed weapon, among other charges.

To prove that Vann was a felon and therefore prohibited 

from possessing a deadly weapon, the State offered documentary evidence that Vann was convicted of possession of 

cocaine in the district court for Douglas County in 1992. In 

particular, the State offered exhibit 7, a five-page court record 

authenticated by the clerk of the district court for Douglas 
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County. Exhibit 7 indicated that Vann was charged in that 

court with possession of cocaine and that he appeared with 

counsel for sentencing following a guilty plea. Nothing in 

exhibit 7 expressly indicated that Vann was represented by 

counsel at the time he entered his guilty plea or that he had 

waived that right. When the State offered exhibit 7, Vann’s 

counsel stated, “I have no objection to Exhibit 7 as an authenticated, certified copy.” The district court received exhibit 7 

into evidence.

At the conclusion of the State’s case, Vann moved to dismiss the charge of possession of a deadly weapon by a prohibited person. Vann argued that exhibit 7 did not show that he 

had or waived counsel at the time of his prior guilty plea and 

was thus insufficient to establish that Vann was a prohibited 

person under State v. Portsche, 258 Neb. 926, 606 N.W.2d 794 

(2000). The district court denied Vann’s motion to dismiss. 

Vann went on to introduce evidence of his own. After the conclusion of all evidence, Vann renewed his motion to dismiss on 

the ground that the evidence was insufficient. The district court 

overruled the motion.

The jury convicted Vann of both possession of a deadly 

weapon by a prohibited person and possession of a concealed 

weapon. Vann was sentenced to a term of imprisonment of 1 

year for possession of a deadly weapon by a prohibited person 

and 6 months for possession of a concealed weapon. The sentences were ordered to be served concurrently to each other 

and with a sentence for a conviction in North Dakota. After 

Vann timely appealed, we moved the case to our docket. See 

Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

ASSIGNMENTS OF ERROR

Vann assigns that the district court erred by (1) overruling 

his motion to dismiss at the conclusion of the State’s case and 

(2) finding that exhibit 7 was a valid prior conviction that 

could be used to prove that he had previously been convicted 

of a felony.
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STANDARD OF REVIEW

[1] When reviewing a criminal conviction for sufficiency of 

the evidence to sustain the conviction, 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. State v. Stubbendieck, 302 Neb. 

702, 924 N.W.2d 711 (2019).

ANALYSIS

Vann’s assignments of error pertain only to his conviction 

for possession of a deadly weapon by a prohibited person. 

Both of his assignments of error challenge the State’s use of 

exhibit 7 to prove that Vann had a prior felony conviction. 

Vann argues that because exhibit 7 did not affirmatively show 

that Vann had or waived counsel at the time of his guilty 

plea in his prior case, his motion to dismiss should have been 

granted and exhibit 7 should not have been admitted into evidence. Though Vann’s assignments of error are similar, they 

are analytically distinct and we thus consider them separately 

in the sections below.

Sufficiency of Evidence.

[2] Vann’s first argument is that the district court erred 

by denying the motion to dismiss he filed at the conclusion 

of the State’s case. The record, however, shows that after 

the State rested and Vann’s motion was denied, Vann put on 

evidence of his own. Vann thereby waived the right to challenge the district court’s denial of his motion to dismiss. A 

defendant who moves for dismissal or a directed verdict at the 

close of the evidence in the State’s case in chief in a criminal 

prosecution and who, when the court overrules the dismissal 

or directed verdict motion, proceeds with trial and introduces 

evidence, waives the appellate right to challenge correctness in the trial court’s overruling the motion for dismissal 

or a directed verdict but may still challenge the sufficiency 
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of the evidence. State v. Briggs, 303 Neb. 352, 929 N.W.2d 

65 (2019).

[3] Vann also asserts that the evidence was insufficient to 

support his conviction. When a criminal defendant challenges 

the sufficiency of the evidence upon which a conviction is 

based, 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. 

State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019). In 

order to review whether there was sufficient evidence to support Vann’s conviction for possession of a deadly weapon by a 

prohibited person, we must therefore first determine the essential elements of the offense.

To determine the elements of a crime, we look to the text 

of the statute. State v. Mann, 302 Neb. 804, 925 N.W.2d 324 

(2019). The statutory definition of possession of a deadly 

weapon by a prohibited person in effect at the time of the 

offense is set forth in Neb. Rev. Stat. § 28-1206 (Reissue 

2016). It provides, in pertinent part, that a person commits 

the offense if he or she “possesses a firearm, a knife, or brass 

or iron knuckles” and “has previously been convicted of a 

felony.” The statutory text thus sets forth two elements that the 

State was required to prove in order to convict Vann: (1) that 

he possessed a firearm, a knife, or brass or iron knuckles and 

(2) that he had a previous felony conviction. See, also, State 

v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999) (finding that 

prior felony conviction is essential element of offense of felon 

in possession of firearm).

Vann does not and could not dispute that there was sufficient evidence of both of the elements listed above—there 

was evidence that he possessed brass knuckles and that he 

had a prior felony conviction. Instead, Vann argues that the 

evidence to convict was insufficient because it did not show 

that he had or waived counsel at the time of his prior conviction. Vann argues that our opinion in State v. Portsche, 258 
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Neb. 926, 606 N.W.2d 794 (2000), requires such evidence. 

As we will explain below, however, Portsche did not recognize any essential elements beyond those that appear in the 

text of § 28-1206, and thus, an argument based on Portsche

is not properly framed as a challenge to the sufficiency of 

the evidence.

In Portsche, the defendant was charged with being a felon 

in possession of a firearm in violation of § 28-1206. At a 

bench trial, the State offered records of a prior plea-based 

conviction, but the district court found that the conviction 

was not valid for purposes of § 28-1206 because the records 

did not reflect that the defendant had an attorney or waived 

his right to an attorney at the time of his plea. The district 

court found the defendant not guilty of the charge, and the 

State brought an error proceeding pursuant to Neb. Rev. 

Stat. § 29-2315.01 (Reissue 1995). In the error proceeding, 

the State argued that a prior uncounseled conviction could 

establish that a defendant had “previously been convicted of 

a felony” for purposes of § 28-1206.

We rejected the State’s argument in Portsche, citing a 

prior felon in possession case, State v. Groves, 239 Neb. 660, 

477 N.W.2d 789 (1991). In Groves, the defendant argued 

that the trial court erred by allowing the admission of evidence that he had a prior burglary conviction. The defendant 

argued that evidence of his prior conviction should have 

been excluded because the records failed to show that at 

the time of his prior conviction, he had or waived counsel. 

We noted we had previously held in the sentence enhancement context that in order to prove a prior conviction, the 

State was required to prove that, at the time of the conviction, the defendant had or waived counsel. We determined 

the State should be required to prove the same in order to 

prove a prior conviction for purposes of § 28-1206. Notably, 

the defendant in Groves did not frame his challenge as one 

of insufficient evidence. Instead, he argued that evidence 

of a prior conviction could not be admitted without proof 
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that the defendant had or waived counsel at the time of the 

prior conviction.

We understand Portsche to have adopted a rule pertaining to the admissibility of evidence of prior convictions in 

felon in possession prosecutions, as opposed to recognizing 

additional essential elements under § 28-1206. We reach this 

conclusion for several reasons. First, as we have noted, we 

look to statutory language to determine the essential elements 

of the offense, and no statutory language makes reference to 

the role of counsel in a prior conviction. Second, we relied 

upon Groves, which discussed the same rule in the context of 

an evidence admissibility challenge. Third, we summarized 

our holding in admissibility terms: “Before a prior felony 

conviction can be used to prove that a defendant is a felon 

in a felon in possession case, the State must prove either that 

the prior felony conviction was counseled or that counsel was 

waived.” State v. Portsche, 258 Neb. 926, 940, 606 N.W.2d 

794, 803 (2000) (emphasis supplied). And finally, if Portsche

actually made the presence or waiver of counsel at the time of 

a prior conviction an essential element of the offense, juries 

could be placed in the position of deciding the legal question 

of whether a defendant validly waived counsel.

We recognize that in State v. Watt, 285 Neb. 647, 832 

N.W.2d 459 (2013), we briefly considered a sufficiency of the 

evidence argument based on Portsche. To the extent this aspect 

of Watt could be read to suggest that the State is required to 

prove that a defendant charged with violating § 28-1206 had 

or waived counsel at the time of a prior conviction as an 

essential element of the crime, it is disapproved.

For the reasons we have explained, the only essential elements the State was required to prove to convict Vann were 

that he possessed brass knuckles and that he was previously 

convicted of a felony. Because a rational trier of fact could 

have found both of these elements beyond a reasonable doubt, 

his sufficiency of the evidence challenge fails.
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Admissibility of Exhibit 7.

[4] Vann’s other assignment of error is that the district court 

erred by finding that exhibit 7 could be used to prove that he 

had previously been convicted of a felony. We understand this 

assignment of error to challenge the admissibility of exhibit 

7. At the time exhibit 7 was offered, Vann did not object. We 

have held that a party who fails to make a timely objection to 

evidence waives the right on appeal to assert prejudicial error 

concerning the evidence received without objection. See, e.g., 

State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).

At oral argument, Vann argued that the lack of a contemporaneous objection to exhibit 7 does not preclude reversal of his 

conviction in this case because the admission of exhibit 7 was 

plain error. Vann is, of course, correct that we can recognize 

plain error even when evidence is received without a timely 

objection. See, e.g., State v. Kuhl, 276 Neb. 497, 755 N.W.2d 

389 (2008). As we will explain, however, we do not believe 

the district court committed any error, let alone plain error, by 

receiving exhibit 7.

In support of his argument that exhibit 7 should not have 

been admitted, Vann relies primarily on Portsche. He points 

to language in Portsche stating that where a record is silent 

as to whether a defendant had or waived counsel at the time 

of a prior conviction, courts may not presume that the defendant had or waived counsel. This language from Portsche is 

consistent with a line of cases from this court. Particularly 

relevant to the facts of Vann’s appeal are cases within that 

line of precedent, which hold that, even if there is evidence 

a defendant had counsel at the time of sentencing for a prior 

conviction, evidence of that conviction should not be considered in the absence of proof that the defendant also had or 

waived counsel at the time of conviction. See, e.g., State v. 

Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v. Thomas, 

262 Neb. 985, 637 N.W.2d 632 (2002).

This line of cases appears to have begun with State v. Smith, 

213 Neb. 446, 329 N.W.2d 564 (1983). In Smith, this court 
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held that courts could not presume that a defendant’s prior conviction was obtained in compliance with the Sixth Amendment 

right to counsel. We did so in reliance on the U.S. Supreme 

Court’s opinion in Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 

258, 19 L. Ed. 2d 319 (1967).

In Burgett, the U.S. Supreme Court held that prosecutors 

in a Texas case could not use records of a prior Tennessee 

conviction when those records did not show that the defendant had or waived counsel in the Tennessee case. The U.S. 

Supreme Court held that it could not presume the defendant 

had or waived counsel in the Tennessee proceedings. The 

Court stated, “To permit a conviction obtained in violation of 

Gideon v. Wainwright[, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 

2d 799 (1963),] to be used against a person either to support 

guilt or enhance punishment for another offense . . . is to erode 

the principle of that case.” Burgett, 389 U.S. at 115.

After Smith, we continued to apply the principle we recognized in reliance on Burgett. See, e.g., State v. Orduna, 

250 Neb. 602, 550 N.W.2d 356 (1996); State v. Ristau, 245 

Neb. 52, 511 N.W.2d 83 (1994); State v. Nowicki, 239 Neb. 

130, 474 N.W.2d 478 (1991). We were not alone among state 

high courts in understanding Burgett to prohibit courts from 

presuming that a prior conviction was obtained in compliance 

with the Sixth Amendment. See, e.g., State v. Grenvik, 291 Or. 

99, 628 P.2d 1195 (1981), overruled, State v. Probst, 339 Or. 

612, 124 P.3d 1237 (2005); State v. Reagan, 103 Ariz. 287, 440 

P.2d 907 (1968), overruled, State v. McCann, 200 Ariz. 27, 21 

P.3d 845 (2001).

But while the principle Vann relies upon rests on a particular understanding of Burgett, a subsequent U.S. Supreme Court 

decision indicated that Burgett should not be read so broadly. 

In Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 

391 (1992), a federal habeas petitioner contended a Kentucky 

sentencing enhancement procedure that presumed the validity 

of prior convictions and required the defendant to show the 

conviction was somehow invalid was unconstitutional. The 
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U.S. Supreme Court disagreed, reasoning that the habeas petitioner was collaterally attacking his prior convictions and that 

under those circumstances, a “‘presumption of regularity’” 

should attach to the prior convictions. Parke, 506 U.S. at 29. 

In the course of the opinion, the Court found no merit to an 

argument that Burgett would not permit a presumption that 

the prior convictions were constitutionally valid. It explained 

that at the time the prior conviction at issue in Burgett was 

entered, state criminal defendants’ federal constitutional right 

to counsel had not yet been recognized. Under those circumstances, the Parke Court said, it was not reasonable to 

presume from a silent record that the prior conviction was 

validly obtained.

After oral argument in this case, we asked the parties to 

submit supplemental briefs addressing whether, in light of 

Parke, the State or the defendant bears the burden of proving 

that a prior conviction was or was not obtained in violation 

of the Sixth Amendment right to counsel. Vann argued that 

Parke does not call the principle first expressed in Smith into 

question. The State argued that Parke rejected the broad reading of Burgett upon which Smith and its progeny relied and 

that a prior criminal conviction was entitled to a presumption 

of regularity.

Having considered Parke and the parties’ arguments regarding it, we do not believe we were correct to say that a court 

can never presume that a defendant had or waived counsel 

at the time of a prior conviction. Although the line of cases 

beginning with Smith read Burgett to prohibit such a presumption as a constitutional matter, Parke makes clear that reading 

of Burgett was too broad and that Burgett does not speak to 

prior convictions obtained after the recognition of a federal 

constitutional right to counsel in state court in Gideon.

Not only do we believe it is not unconstitutional for a court 

to extend a presumption of regularity to post-Gideon prior 

convictions, we believe such a presumption is consistent with 

the way our law generally treats final judgments in criminal 
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cases. We have long held that judgments imposing sentences 

in a criminal case are entitled to a presumption of regularity and validity. See, e.g., Nicholson v. Sigler, 183 Neb. 24, 

157 N.W.2d 872 (1968); Sedlacek v. Hann, 156 Neb. 340, 56 

N.W.2d 138 (1952).

Furthermore, as a factual matter, we think it unlikely 

that many modern convictions are obtained in violation of 

a defendant’s Sixth Amendment rights. As other courts have 

observed, the recognition of a constitutional right to counsel 

in Gideon and the further recognition of that right in state statutes or rules of criminal procedure, see, e.g., Neb. Rev. Stat. 

§ 29-3903 (Cum. Supp. 2018), make it unlikely that defendants 

are convicted without counsel or waiving the right thereto. 

See, e.g., Com. v. Saunders, 435 Mass. 691, 761 N.E.2d 490 

(2002); State v. McCann, 200 Ariz. 27, 21 P.3d 845 (2001); 

State v. Glenn, No. 34790-3-II, 2007 WL 2379655 (Wash. App. 

Aug. 21, 2007) (unpublished opinion listed at 140 Wash. App. 

1014 (2007)). And even if a conviction is somehow obtained 

in violation of Gideon, a defendant can successfully challenge 

that conviction. Glenn, supra.

We are in no way breaking new ground by concluding that 

Burgett does not prohibit courts from presuming that convictions obtained after Gideon were obtained in compliance with 

the Sixth Amendment. After Parke, many state and federal 

courts have concluded that post-Gideon convictions are entitled to a presumption of regularity, such that once the government establishes the existence of a prior conviction, it becomes 

the defendant’s burden to prove that he or she did not have 

counsel and did not waive the right to counsel at the time of 

conviction. See, e.g., U.S. v. Coppage, 772 F.3d 557 (8th Cir. 

2014); U.S. v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. 2009); 

U.S. v. Bush, 405 F.3d 909 (10th Cir. 2005); U.S. v. Cline, 362 

F.3d 343 (6th Cir. 2004); U.S. v. Jones, 332 F.3d 688 (3d Cir. 

2003); U.S. v. Gray, 177 F.3d 86 (1st Cir. 1999); State v. Von 

Ferguson, 169 P.3d 423 (Utah 2007); Nicely v. Commonwealth, 

25 Va. App. 579, 490 S.E.2d 281 (1997). Included among 
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the state high courts that have adopted this position are those 

that, like us, once understood Burgett to prohibit courts from 

presuming that a prior conviction was obtained in compliance 

with the Sixth Amendment. See, e.g., State v. Probst, 339 Or. 

612, 124 P.3d 1237 (2005); State v. McCann, 200 Ariz. 27, 21 

P.3d 845 (2001).

[5] Persuaded that this approach is correct, we overrule our 

prior cases to the extent they hold that courts cannot presume 

that the defendant had or waived counsel at the time of a prior 

conviction. See, e.g., State v. Garcia, 281 Neb. 1, 792 N.W.2d 

882 (2011); State v. King, 272 Neb. 638, 724 N.W.2d 80 (2006); 

State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005); State v. 

Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v. Thomas, 

262 Neb. 985, 637 N.W.2d 632 (2002); State v. Nelson, 262 

Neb. 896, 636 N.W.2d 620 (2001); State v. Portsche, 258 

Neb. 926, 606 N.W.2d 794 (2000); State v. Orduna, 250 Neb. 

602, 550 N.W.2d 356 (1996); State v. Ristau, 245 Neb. 52, 

511 N.W.2d 83 (1994); State v. Reimers, 242 Neb. 704, 496 

N.W.2d 518 (1993); State v. Nowicki, 239 Neb. 130, 474 

N.W.2d 478 (1991); State v. Green, 238 Neb. 328, 470 N.W.2d 

736 (1991); State v. Sherrod, 229 Neb. 128, 425 N.W.2d 616 

(1988); State v. Foster, 224 Neb. 267, 398 N.W.2d 101 (1986); 

State v. Huffman, 222 Neb. 512, 385 N.W.2d 85 (1986); State 

v. Schaf, 218 Neb. 437, 355 N.W.2d 793 (1984); State v. Ellis, 

216 Neb. 699, 345 N.W.2d 323 (1984); State v. Ziemba, 216 

Neb. 612, 346 N.W.2d 208 (1984); State v. Smith, 213 Neb. 

446, 329 N.W.2d 564 (1983). We hold that post-Gideon convictions are entitled to a presumption of regularity such that 

records of conviction are admissible unless the defendant can 

show that he or she did not have or waive counsel at the time 

of conviction.

To be clear, our decision leaves untouched the central 

holding of Portsche that the State may not rely upon a conviction obtained in violation of the Sixth Amendment in 

order to establish a violation of § 28-1206. Only the language in Portsche stating that a court cannot presume that a 
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prior conviction was obtained in compliance with the Sixth 

Amendment is disapproved.

Additionally, we note that even though this is a case in 

which a prior conviction is an element of the offense, our decision today also overrules cases in which the State attempted to 

rely on prior convictions to enhance a sentence. As mentioned 

above, we have previously treated rules governing the consideration of records of conviction when a prior conviction is 

an element of the offense as equally applicable to attempts to 

use a prior conviction to enhance a sentence. See, e.g., State 

v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991). Like other 

courts, we see no reason to treat the two situations differently 

today. See, e.g., Probst, 339 Or. at 624, 124 P.3d at 1244 (collecting cases in which courts “adopted the presumption of 

regularity for prior convictions used to enhance sentences or 

as elements of a crime”); State v. McCann, 200 Ariz. 27, 21 

P.3d 845 (2001) (holding that presumption of regularity applies 

to prior convictions regardless of whether they are used to 

enhance sentence or to prove element of offense).

Turning to the facts of the present case, the application 

of the foregoing principles is straightforward. Via exhibit 7, 

the State demonstrated the existence of a prior conviction 

obtained decades after the establishment of a federal constitutional right to counsel, and Vann did not object to its admission. At that point, the conviction was entitled to a presumption of regularity and Vann had the burden to show that he 

did not have counsel at the time of the conviction and did not 

waive the right to counsel. Vann, however, introduced no evidence even suggesting as much. Accordingly, the district court 

did not err in receiving exhibit 7.

Response to Concurring Opinion.

Prior to concluding, we write in response to the concurring 

opinion’s assertion that, in this opinion, we have adopted “new 

principles of appellate law.” It appears the concurring opinion believes we have done so because of the circumstances 
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under which we considered the State’s argument that the line 

of cases that began with State v. Smith, 213 Neb. 446, 329 

N.W.2d 564 (1983), rested on a misunderstanding of Burgett v. 

Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), 

and should be overruled. As we will explain, however, the 

result we reach today comes about through the application of 

existing principles, not the establishment of new ones.

First, this opinion does not change our rule that generally 

we do not consider issues raised for the first time on appeal. 

As we recently explained, “[t]his is primarily so because a 

trial court cannot commit error regarding an issue that was 

never presented to it or submitted for its disposition.” State v. 

Kruse, 303 Neb. 799, 811, 931 N.W.2d 148, 156 (2019). In that 

same opinion, we said that “where the record adequately demonstrates that the decision of a trial court is correct, although 

such correctness is based on a ground or reason different 

from that articulated by the trial court, an appellate court will 

affirm.” Id. In the present case, we are not finding that the 

trial court erred regarding an issue that was not presented to it. 

Rather, we are affirming the decision of the trial court on an 

alternate basis, a well-worn path in our jurisprudence.

There was also no reason for the State to raise the continuing vitality of the Smith line of cases before the district court. 

Not only was exhibit 7 received into evidence, Vann did not 

object to its receipt. While we certainly understand that a 

party generally must make objections to the actions of the trial 

court to preserve subsequent appellate review, the admission of 

exhibit 7 was not even a contested issue in the trial court, let 

alone an issue to which the State would be expected to enter 

an objection.

Neither do we believe our opinion establishes any new 

principles regarding the raising of issues for the first time at 

oral argument. We do not dispute that it is generally advisable for parties to raise issues on appeal before oral argument, but again, we have long recognized that appellate 

courts may affirm a decision of a trial court where the record 
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demonstrates it is correct, even if for a different reason than 

that expressed by the trial court. Here, the State raised at oral 

argument the continuing vitality of the line of cases beginning 

with Smith; we gave the parties the opportunity to address the 

issue in supplemental briefing; and ultimately, we determined 

the trial court decision was correct, albeit for a reason not 

expressed by the trial court judge.

Further, our own precedent indicates that we may consider this issue on appeal even though the State did not 

raise it in the trial court or until oral argument on appeal. 

In Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 

N.W.2d 395 (2011), an employee in a workers’ compensation 

matter argued for the first time on appeal that one of our prior 

cases was wrongly decided. The employer asserted that the 

employee waived the argument because she did not present 

it to the workers’ compensation review panel. We rejected 

the employer’s position, explaining that the employee did 

not waive the argument because the review panel lacked the 

power to overturn our precedent. In this case, the State obviously could not have asked the trial court to overrule any 

of our cases. And, under the circumstances, neither do we 

believe the omission of the issue from the State’s brief on 

appeal can be considered a waiver. The State filed its brief 

before we moved the case to our docket, when it was pending 

before the Nebraska Court of Appeals. The Court of Appeals, 

like the review panel in Bassinger, lacks the authority to 

overrule our precedent.

We also disagree that this opinion makes any changes to our 

plain error review standard. When we review an issue for plain 

error, we will reverse only when an error is plainly evident 

from the record and certain other requirements are met. See, 

e.g., State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020). 

We applied that standard here, found no plain error, and therefore affirmed.

The concurrence does not say how it would resolve this 

case under plain error review, but to the extent it suggests 
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that we should have found that the receipt of exhibit 7 merely 

did not rise to the level of plain error without reconsidering any precedent, that course was not open to us here. Our 

precedent held that it was plain error to presume that a prior 

conviction was obtained in compliance with a defendant’s 

Sixth Amendment rights. See, e.g., State v. Thomas, 262 Neb. 

985, 637 N.W.2d 632 (2002). And to the extent the concurrence would have us refuse to reconsider whether something 

we have held is plain error is actually error at all, that would, 

rather strangely, allow a party to insulate shaky precedent 

from review by declining to object at trial. We reviewed 

for plain error because Vann did not object to the receipt of 

exhibit 7. We do not understand why his failure to object 

would preclude us from considering whether the precedent he 

relied upon remains good law.

CONCLUSION

Because the district court did not err in receiving exhibit 7 

and because there was sufficient evidence to support the challenged conviction under § 28-1206, we affirm.

Affirmed.

Heavican, C.J., not participating.

Miller-Lerman, J., concurring.

Regrettably, today the majority announces a wholly unforced 

new chapter in Nebraska appellate jurisprudence. The majority opinion establishes the following precedents:

•The Nebraska Supreme Court will consider new arguments 

made by any party for the first time at oral argument before 

the Nebraska Supreme Court (i.e., parties are no longer 

required to present or preserve a controlling issue earlier in 

the appellate process or in the lower courts); and

•“Plain error review” is now a vehicle for the Nebraska 

Supreme Court for overruling precedent (i.e., the Nebraska 

Supreme Court’s plain error review doctrine is no longer 

limited to correcting errors committed by the trial court under 

existing law plainly evident from the record).
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In my view, adoption of these new principles of appellate law 

injects instability and diminishes confidence in Nebraska’s 

appellate process.

Notwithstanding the foregoing, I agree that the Smith line of 

precedents has become at odds with the progeny of Parke. So 

applying the new substantive law announced today, I concur.