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STATE v. WARLICK

Cite as 308 Neb. 656

State of Nebraska, appellee, v. 

Jeremiah Warlick, appellant.

___ N.W.2d ___

Filed March 19, 2021. No. S-19-1137.

1. Judgments: Jurisdiction: Appeal and Error. The determination of a 

jurisdictional issue which does not involve a factual dispute is a matter 

of law which requires the appellate court to reach its conclusion independent from the trial court; however, when the determination rests on 

factual findings, the trial court’s decision on the issue will be upheld 

unless the factual findings concerning jurisdiction are clearly incorrect.

2. Right to Counsel: Waiver: Appeal and Error. In determining whether 

a defendant’s waiver of counsel was voluntary, knowing, and intelligent, 

an appellate court applies a clearly erroneous standard of review.

3. Trial: Waiver. Whether a defendant could and, in fact, did waive his 

or her right to attend all stages of his or her trial presents a question 

of law.

4. 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.

5. Rules of Evidence: Appeal and Error. In all proceedings where the 

Nebraska Evidence Rules apply, admissibility of evidence is controlled 

by such rules, not judicial discretion, except in those instances under the 

Nebraska Evidence Rules when judicial discretion is a factor involved in 

the admissibility of evidence.

6. Venue. Venue is the place where a court’s inherent power to adjudicate 

may be exercised.

7. Criminal Law: Venue: Jurisdiction: Waiver: Proof. In a criminal 

case, proper venue is a jurisdictional fact that, in the absence of a 

defendant’s waiver by requesting a change of venue, the State has the 

burden of proving beyond a reasonable doubt.

Nebraska Supreme Court Online Library

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

06/04/2021 08:09 AM CDT
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Cite as 308 Neb. 656

8. Criminal Law: Venue: Proof. The State may prove venue like any 

other fact in a criminal case. It need not be established by direct testimony, nor in the words of the information, but if from the facts in evidence the only rational conclusion which can be drawn is that the crime 

was committed in the county alleged, the proof is sufficient.

9. Venue. The venue statutes do not make the place of arrest a circumstance of venue.

10. ____. Neb. Rev. Stat. § 29-215 (Reissue 2016) is not a venue statute.

11. Constitutional Law: Criminal Law: Sentences: Right to Counsel. An 

accused has a state and federal constitutional right to be represented by 

an attorney in all critical stages of a criminal prosecution which can lead 

to a sentence of confinement.

12. Right to Counsel. If an indigent defendant is to be imprisoned upon 

conviction, he or she has a right to court-appointed counsel at trial, 

regardless of whether the offense for which he or she may be imprisoned 

is classified as petty, misdemeanor, or felony.

13. Criminal Law: Right to Counsel. An indigent defendant who refuses 

to accept offered counsel without justifiable reason and elects to proceed pro se has not been deprived of his or her constitutional right 

to counsel.

14. Constitutional Law: Right to Counsel: Waiver. In order to exercise 

the right of self-representation, a defendant must first make a knowing 

and intelligent waiver of the right to counsel.

15. Right to Counsel: Waiver. Formal warnings do not have to be given by 

the trial court to establish a knowing, voluntary, and intelligent waiver 

of the right to counsel.

16. ____: ____. In determining whether there has been a knowing and 

voluntary waiver of the right to counsel, the key inquiry is whether the 

defendant was sufficiently aware of the right to have counsel and of the 

possible consequences of a decision to forgo the aid of counsel.

17. Right to Counsel: Motions for Continuance. There must be a balance 

between a defendant’s right to counsel and the court’s discretionary 

powers to control the progression of a case, including granting or denying continuances.

18. Criminal Law: Right to Counsel. Defendants need not be advised of 

the right to counsel at every stage of the criminal proceedings.

19. Right to Counsel: Pretrial Procedure. A defendant’s knowledge during 

pretrial proceedings of a right to counsel does not simply vanish by the 

date of the trial.

20. Constitutional Law: Right to Counsel: Trial. When a pro se defendant 

absents himself or herself from the pro se defendant’s trial of his or her 

own volition, a trial judge is not constitutionally required to appoint 

counsel to represent the absent defendant.
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21. Constitutional Law: Trial: Witnesses. The Confrontation Clause of the 

Sixth Amendment to the U.S. Constitution and Neb. Const. art. I, § 11, 

provide for the accused’s right to be present in the courtroom at every 

stage of the trial.

22. Constitutional Law: Trial: Waiver. A defendant’s right to be present 

at trial may be waived, but any waiver of this right must be knowing 

and voluntary.

23. Constitutional Law: Trial. It is the duty of the court to have a defendant who is in custody brought into court when any proceeding connected 

with the trial of the case is taken.

24. Constitutional Law: Trial: Bailment: Waiver. It is the duty of a 

defendant out on bail to attend the sessions of the court, and the failure 

to do so constitutes voluntary absence on the defendant’s part and a 

waiver of the defendant’s right to be present.

25. ____: ____: ____: ____. It is the duty of a defendant out on bail to continue to be present after a trial recess, and the defendant’s failure to do 

so constitutes voluntary absence on the defendant’s part and a waiver of 

the defendant’s right to be present.

26. Waiver: Words and Phrases. A waiver is the voluntary and intentional 

relinquishment of a known right, privilege, or claim, and may be demonstrated by or inferred from a person’s conduct.

27. Constitutional Law: Trial. While a court should make a reasonable 

effort to secure the presence of a defendant at any proceeding during 

the trial, if a defendant could prevent the completion of the trial by 

voluntarily absenting himself or herself, and thus tie the hands of justice, the defendant would be permitted to take advantage of his or her 

own wrong.

28. Constitutional Law: Trial: Evidence: Waiver: Appeal and Error. In 

determining on direct appeal whether a defendant has waived the right 

to be present, an appellate court does not merely look to the evidence 

available at the moment the court pronounced the defendant’s absence to 

be voluntary, but at the entirety of the evidence in the record.

29. Trial: Bailment: Evidence: Proof: Appeal and Error. An appellate 

court applies to a defendant, who was out on bail and has failed without 

explanation to be present at trial, the fundamental proposition that the 

burden to produce evidence will rest upon the party who possesses positive and complete knowledge concerning the existence of facts which 

the other party would otherwise be called upon to negative, or if the 

evidence to prove a fact is chiefly within the party’s control.

30. Evidence: Appeal and Error. 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.
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31. Convictions. A conviction cannot be based upon suspicion, speculation, 

the weakness of the status of the accused, the embarrassing position in 

which the accused finds himself or herself, or the mere fact that some 

unfavorable circumstances are not satisfactorily explained.

32. Convictions: Evidence. A criminal conviction may soundly be based 

solely on circumstantial evidence.

33. ____: ____. A conviction may be based on circumstantial evidence 

regardless of whether the inferences of guilt of each line of circumstantial proof are stronger than the inferences of nonguilt. The circumstantial 

evidence, like direct evidence, is considered as an interrelated whole.

34. Words and Phrases. Actual possession is synonymous with physical possession.

35. Evidence: Proof: Intent. Constructive possession may be proved by 

mere ownership, dominion, or control over contraband itself, coupled 

with the intent to exercise control over the same.

36. Controlled Substances. Under the criminal narcotics statutes, possession may be either actual or constructive.

37. Evidence. Two persons may have constructive possession, or one may 

have actual possession and the other have constructive possession.

38. Evidence: Proof. Constructive possession may be proved by direct or 

circumstantial evidence and may be shown by the accused’s proximity to the item at the time of the arrest or by a showing of dominion 

over it.

39. Controlled Substances. Possession of a controlled substance means 

either (1) knowingly having it on one’s person or (2) knowing of the 

substance’s presence and having control over the substance.

40. Evidence: Proof. Mere presence at a place where the item in question is 

found is not sufficient to show constructive possession.

41. Controlled Substances: Motor Vehicles: Evidence. Possession of an 

illegal substance can be inferred from a vehicle passenger’s proximity 

to the substance or other circumstantial evidence that affirmatively links 

the passenger to the substance.

42. Controlled Substances: Evidence: Proof. Evidence that a defendant 

had constructive possession of a drug with knowledge of its presence 

and its character as a controlled substance is sufficient to support a finding of possession and to sustain a conviction for unlawful possession.

43. Investigative Stops: Motor Vehicles: Controlled Substances: 

Evidence. A passenger’s joint possession of a controlled substance 

found in a motor vehicle can be established by evidence that (1) supports an inference that the driver was involved in drug trafficking, as 

distinguished from possessing illegal drugs for personal use; (2) shows 

the passenger acted suspiciously during a traffic stop; and (3) shows the 
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passenger was not a casual occupant but someone who had been traveling a considerable distance with the driver.

44. Investigative Stops: Motor Vehicles: Controlled Substances. A finder 

of fact may reasonably infer that a driver with a possessory interest in 

a vehicle who is transporting a large quantity of illegal drugs would 

not invite a passenger into the vehicle unless the passenger knew of 

the valuable cargo contained therein and was conscious of the risks and 

ramifications involved with transporting it.

45. ____: ____: ____. Possession of a controlled substance can be inferred 

if the vehicle’s occupant acts oddly during the traffic stop, gives 

explanations that are inconsistent with the explanations of other occupants of the vehicle, or generally gives an implausible explanation for 

the travels.

46. Controlled Substances: Motor Vehicles. In order to support a reasonable inference of constructive possession, the illegal substance need not 

be of such proximity to the passenger of a vehicle as to be conveniently 

accessed or within immediate physical reach.

47. Weapons: Evidence: Proof. Constructive possession does not establish 

the elements of Neb. Rev. Stat. § 28-1202 (Reissue 2016) of “carr[ying]” 

a concealed weapon “on or about his or her person.”

48. Criminal Law: Statutes. A penal statute is to be strictly construed in 

the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.

49. Weapons. Neb. Rev. Stat. § 28-1202 (Reissue 2016) plainly limits the 

place of the weapon’s concealment to on or about his or her person.

50. Weapons: Motor Vehicles. A weapon is concealed on or about the 

person if it is concealed in such proximity to the passenger of a motor 

vehicle as to be convenient of access and within immediate physical reach.

51. Convictions: Presumptions: Right to Counsel: Waiver: Proof. Any 

conviction after Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 

L. Ed. 2d 799 (1963), is 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.

Appeal from the District Court for York County: James C. 

Stecker, Judge. Affirmed in part, and in part reversed and 

remanded with directions.

Kevin V. Schlender for appellant.
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STATE v. WARLICK

Cite as 308 Neb. 656

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

for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. NATURE OF CASE

In an appeal from several convictions relating to illegal firearm possession and controlled substance charges, the defendant 

challenges venue, the commencement of trial while the defendant was not represented by counsel, the proceeding with trial 

after he failed to return to court following a noon recess, and 

the sufficiency of evidence to support the convictions.

II. BACKGROUND

Following a bench trial in the York County District Court, 

Jeremiah Warlick was convicted of (1) possession of a controlled substance, marijuana, with intent to distribute, in violation of Neb. Rev. Stat. § 28-416 (Cum. Supp. 2020); (2) possession of a controlled substance, marijuana weighing more than 1 

pound, in violation of § 28-416; (3) failing to obtain a drug tax 

stamp, in violation of Neb. Rev. Stat. §§ 77-4302 and 77-4309 

(Reissue 2018); (4) possession of a firearm during the commission of a felony, in violation of Neb. Rev. Stat. § 28-1205 

(Reissue 2016); (5) possession of a deadly weapon by a prohibited person, in violation of Neb. Rev. Stat. § 28-1206 (Cum. 

Supp. 2018); (6) possession of a stolen firearm, in violation of 

Neb. Rev. Stat. § 28-1212.03 (Reissue 2016); and (7) carrying 

a concealed weapon, in violation of Neb. Rev. Stat. § 28-1202 

(Reissue 2016). Warlick’s convictions arose from a traffic stop 

on July 26, 2018, of a vehicle in which Warlick was a front 

seat passenger.

1. Pretrial Hearings

Warlick was first advised of his right to counsel, including 

his potential right to appointed counsel, on August 29, 2018, 

in county court. The matter was bound over to district court, 
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where the journal entry reflects that Warlick was advised of 

“all possible penalties and rights,” and the bill of exceptions 

reflects that Warlick, in response to the court’s inquiry, stated 

he had no questions as to the advisement of his statutory and 

constitutional rights. The court also determined that Warlick 

did not suffer from any condition that would affect his ability 

to understand the proceedings. Representing himself pro se, 

Warlick filed a motion to dismiss, arguing that the officer who 

stopped his vehicle committed perjury and that the officer 

initiated the stop outside of York County, without requesting 

permission from Seward County authorities, which resulted 

in the officer’s having no power to enforce the law outside of 

York County. Arraignment and a hearing on the motion was 

continued until November 13.

At the hearing on November 13, 2018, Warlick again 

appeared without counsel. The district court asked Warlick if 

he intended to either hire counsel or request that counsel be 

appointed to him. Warlick answered, “No.” The court then 

asked Warlick if he was waiving his right to counsel, to which 

Warlick responded, “Yes.” The court asked Warlick, “Has 

anyone made any threats, promises, or forced you to get you 

to waive your right to counsel?” Warlick answered, “No, sir.” 

The court then found that Warlick freely, voluntarily, knowingly, and intelligently waived his right to counsel. Warlick 

also waived his right to a jury trial. The court denied Warlick’s 

motion to dismiss.

After the arraignment hearing, Warlick filed a motion to 

quash the bindover, alleging that the York County District 

Court had no jurisdiction over the offenses charged and no 

jurisdiction over Warlick and that “[t]he officer who filed 

the information had no authority to do so.” The State filed a 

motion to consolidate Warlick’s case with the case brought 

against the driver of the vehicle, Denarro Clark. These motions 

were taken up at the pretrial hearing on January 29, 2019. The 

court granted the motion to consolidate, indicating that since 

this would be a bench trial, the court would be able to keep 
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the evidence separate. The court denied Warlick’s motion to 

quash the bindover.

After the pretrial hearing, Warlick filed a “Motion for 

Extension of Time” on February 11, 2019, asking the court to 

continue the date for trial 120 days to allow him to find representation and stating that “[t]his will give time to properly 

prepare for trial.” The court granted Warlick a continuance 

for an unspecified amount of time, but set a status hearing for 

March 11.

Warlick appeared at the March 11, 2019, status hearing 

still without counsel. Warlick indicated he had not signed any 

contracts yet, but was “looking to do something” for the next 

hearing. The court asked if Warlick was going to hire counsel 

on his own or intended to ask for court-appointed counsel, and 

Warlick responded, “On my own.”

The court scheduled trial to begin April 24, 2019, and told 

Warlick that if he did not have counsel by then, “we’ll proceed 

without counsel.” Warlick indicated he understood. Throughout 

the pretrial hearings and up to trial, Warlick was at liberty after 

being released on bail.

2. Trial

The consolidated bench trial of Warlick and Clark was held 

on April 24, 2019. Both Warlick and Clark appeared without 

counsel. When the court asked Warlick if he was ready to proceed to trial, he responded, “No, I’m not ready to proceed at 

all.” But neither Warlick nor Clark objected to the trial beginning at that time or asked for a continuance.

At trial, before calling its first witness, the State offered 

exhibits 14 and 15, which were certified copies of statements 

of conviction from Cook County, Illinois.

Exhibit 14 is evidence of a plea-based conviction in Illinois 

on October 25, 2017, of “FELON POSS/USE FIREARM/

PAROLE” and “FELON POSS/USE FIREARM PRIOR,” in 

violation of “720-5/24-1.1(A).” The certified statement of 

conviction indicates that there was a motion to withdraw as 

attorney filed on June 30, 2016, and an appearance, possibly 
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by a different attorney, filed on July 26, but there is no indication that Warlick proceeded pro se or was not represented by 

counsel at the time he pled guilty.

Exhibit 15 is evidence of plea-based convictions in Illinois 

on June 10, 2010, of “AGG VEH HIJACKING/WEAPON,” 

in violation of “720-5/18-4(a)(3)”; “BURGLARY,” in violation of “720-5/19-1(a)”; and “AGGRAVATED UNLAWFUL 

RESTRAINT,” in violation of “720-5/10-3.1(a).” The certified 

statement of conviction describes that Warlick was appointed 

a public defender on June 16, 2009, and there is no indication 

that counsel sought to withdraw or that Warlick proceeded 

pro se at any time before he entered his pleas.

The State argued that the exhibits established that Warlick 

was a convicted felon for purposes of the possession of a 

firearm by a prohibited person charge. The court overruled 

Warlick’s relevancy objection to the exhibits.

The State then presented testimony from the York County 

sheriff’s deputy who conducted the traffic stop of the vehicle. 

The deputy testified that he observed a vehicle traveling eastbound near mile marker 348 on Interstate 80 in York County 

with no front license plate and an obstructed rear license plate 

to the point he could not see the state in which the license 

plate was issued. Due to heavy traffic, he was not able to catch 

up to the vehicle and activate his patrol car’s overhead emergency lights until mile marker 364, in York County. The deputy 

stated that the vehicle crossed the county line and came to a 

stop approximately a quarter mile to a half mile into Seward 

County, just west of mile marker 366.

After making contact, the deputy identified the driver of the 

vehicle as Clark and the front seat passenger as Warlick by 

their respective Indiana and Illinois driver’s licenses. Once the 

deputy had advised Clark of the traffic violation and got his 

information, he asked Clark to accompany him to his patrol 

car while he issued Clark a written warning.

The deputy testified that Clark told him Warlick was his 

cousin and that the purpose of his trip was to go gambling 

in Las Vegas, Nevada. The deputy stated that “when asking 
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[Clark] questions, he seemed to pause, think about his answer 

before answering.” The deputy testified that Warlick provided 

a different story, telling him that Warlick and Clark had made 

a trip to California, and Warlick never mentioned gambling or 

a trip to Las Vegas. A criminal history check on both Warlick 

and Clark indicated that both had prior weapons convictions, to 

which Clark had admitted. Based on a suspicion that criminal 

activity was afoot, the deputy issued Clark a written warning and then asked him for consent to search his vehicle. 

Clark agreed.

Upon a search of the vehicle, the deputy discovered underneath the spare tire in the cargo area of the vehicle four 

bundles of marijuana that were wrapped multiple times in 

plastic wrap and tinfoil with a “masking agent” between each 

layer. The deputy testified that a “masking agent . . . is common practice to defeat a police service dog” and indicated to 

him that somebody would have knowingly done this to evade 

detection. Along with the marijuana, the deputy also found 

a drawstring bag located in the same area as the marijuana, 

which contained a handgun, an extended magazine for the 

handgun, and some hair product. The deputy testified that the 

marijuana and handgun were accessible from the back seat of 

the vehicle.

The deputy testified that 4 pounds of marijuana were seized 

and that based on his training and experience, this amount 

is consistent with distribution rather than personal use. Also, 

there was no drug tax stamp located on any of the marijuana 

seized. The deputy further testified that when the serial number 

on the handgun was entered into law enforcement databases, a 

“confirmation hit” was received, indicating that the firearm had 

been reported as stolen in Illinois. The deputy also pointed out 

Clark had told him that he was a barber. Subsequent research 

by the deputy confirmed his suspicion that the hair product 

located with the firearm was the type commonly used in barber 

shops. Warlick and Clark were placed under arrest.

During the deputy’s testimony, he stated that the traffic stop 

was initiated in York County, but the vehicle did not come 
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to a stop until approximately a quarter mile to a half mile 

into Seward County, where the search of the vehicle occurred. 

During cross-examination, the deputy testified to an error in 

his affidavit stating that the arrest was made in York County. 

The deputy stated that a template was used for his report and 

that “[b]asically we change the name, date and time and the 

charges.” And since this was an “unusual circumstance” where 

it crossed county lines, “the location, York, Nebraska, usually 

does not change, and it was something that was overlooked at 

the time.”

While Clark was in the process of cross-examining the 

deputy, the court called a noon recess and said the trial would 

resume at 1:15 p.m. At 1:50 p.m., the court returned on the 

record, in Warlick’s absence. The court stated, “Both . . . 

Clark and . . . Warlick are absent. They were told to return 

for trial at 1:15. They have failed to appear. They voluntarily 

absence themselves.”

The court then allowed the State to continue with the trial. 

The State presented the testimony of a forensic scientist from 

the Nebraska State Patrol Crime Laboratory. He testified that 

the test of the suspected marijuana from Warlick and Clark’s 

vehicle confirmed that it was in fact marijuana and weighed in 

excess of 1 pound.

The State rested its case and offered closing arguments. 

Thereafter, the court found Warlick guilty beyond a reasonable 

doubt on all seven counts. The court issued a bench warrant for 

Warlick’s arrest and set a date for sentencing.

3. Posttrial Hearings 

and Sentencing

On July 8, 2019, Warlick appeared with counsel. Warlick 

had filed on May 3 a motion for new trial and on June 11 a 

motion to continue the hearing on the motion for new trial for 

60 days. The court granted the motion to continue in order 

for Warlick to get a transcript prepared.

Warlick’s motion for new trial asserted that there was an 

irregularity in the proceedings and orders of the court, there 
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was an abuse of discretion that prevented Warlick from having a fair trial, Warlick’s “substantial rights” were materially 

affected, the verdicts were not sustained by sufficient evidence, 

and an error of law occurred at trial. At the hearing on the 

motion for new trial, Warlick’s counsel argued that since the 

vehicle belonged to Clark, the vehicle was driven by Clark, 

and the handgun recovered was found in a bag that belonged to 

Clark, Warlick’s presence as a passenger did not link him to the 

items or make him guilty of possession of those items. Counsel 

for Warlick also argued that the court granted a 120-day continuance, but went to trial without counsel before the 120 days 

were past, and that Warlick did not knowingly and intelligently 

waive counsel at trial. The court entered an order denying the 

motion for new trial.

Warlick again appeared with counsel at his sentencing hearing. No explanation was ever offered on the record as to any 

reason for Warlick’s disappearance during his trial.

Warlick was sentenced to 1 to 2 years’ imprisonment on 

count 1, possession of a controlled substance with intent to 

distribute; 1 to 2 years’ imprisonment on count 3, no drug tax 

stamp; 1 to 2 years’ imprisonment on count 4, possession of a 

deadly weapon during the commission of a felony; 3 to 5 years’ 

imprisonment on count 5, possession of a deadly weapon by a 

prohibited person; 1 to 2 years’ imprisonment on count 6, possession of a stolen firearm; and no more than 1 year’s imprisonment on count 7, carrying a concealed weapon. However, the 

court found that sentencing Warlick on both count 1 and count 

2 would equate to double jeopardy. Therefore, it did not impose 

a sentence for count 2. Count 4 was ordered to be served consecutively to counts 1, 3, 5, 6, and 7, which were to be served 

concurrently to one another. In the aggregate, Warlick was 

sentenced to 4 to 7 years’ imprisonment and received credit for 

time served of 159 days.

III. ASSIGNMENTS OF ERROR

Warlick assigns, renumbered and reworded, that the trial 

court erred in (1) proceeding with trial without appointing 
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an attorney or standby counsel for Warlick, (2) continuing 

with trial in Warlick’s absence and without counsel, (3) finding 

exhibits 14 and 15 sufficient to establish prior felony convictions because the exhibits failed to show that Warlick was represented by counsel or had waived counsel at the time of the 

convictions and sentencing, (4) finding sufficient evidence to 

convict Warlick, and (5) finding Warlick guilty when the trial 

court lacked jurisdiction due to improper venue.

IV. STANDARD OF REVIEW

[1] The determination of a jurisdictional issue which does 

not involve a factual dispute is a matter of law which requires 

the appellate court to reach its conclusion independent from 

the trial court; however, when the determination rests on factual findings, the trial court’s decision on the issue will be 

upheld unless the factual findings concerning jurisdiction are 

clearly incorrect. 1

[2] In determining whether a defendant’s waiver of counsel 

was voluntary, knowing, and intelligent, an appellate court 

applies a clearly erroneous standard of review. 2

[3] Whether a defendant could and, in fact, did waive his or 

her right to attend all stages of his or her trial presents a question of law. 3

[4] 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. 4

[5] In all proceedings where the Nebraska Evidence Rules 

apply, admissibility of evidence is controlled by such rules, 

1 State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997).

2 State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009), overruled in part 

on other grounds, State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).

3 State v. Fox, 282 Neb. 957, 806 N.W.2d 883 (2011).

4 State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020).
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not judicial discretion, except in those instances under the 

Nebraska Evidence Rules when judicial discretion is a factor 

involved in the admissibility of evidence. 5

V. ANALYSIS

Warlick asserts that the York County District Court was 

the wrong venue in which to bring the charges against him. 

Warlick also argues that the district court violated his right to 

be present and his right to counsel when it commenced trial 

with Warlick’s representing himself pro se and when it continued with the trial after Warlick failed to reappear following 

the noon recess. Finally, Warlick attacks the sufficiency of the 

evidence to support his convictions, arguing that the evidence 

failed to establish his possession of the marijuana and the 

handgun and that exhibits 14 and 15 do not establish the element of being a felon for the felon in possession conviction, 

because they do not demonstrate that any prior felony conviction was counseled.

1. Venue

[6,7] We first address Warlick’s argument that the district 

court for York County lacked venue. Venue is the place where 

a court’s inherent power to adjudicate may be exercised. 6

Article I, § 11, of the Nebraska Constitution describes that an 

accused shall have the right to a “speedy public trial by an 

impartial jury of the county or district in which the offense is 

alleged to have been committed,” and venue is further controlled by statute, principally by Neb. Rev. Stat. § 29-1301 

(Reissue 2016). In a criminal case, proper venue is a jurisdictional fact 7 that, in the absence of a defendant’s waiver 

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

6 See, State v. Gorman, 232 Neb. 738, 441 N.W.2d 896 (1989); State v. 

Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).

7 State v. Laflin, 201 Neb. 824, 272 N.W.2d 376 (1978); State v. Liberator, 

197 Neb. 857, 251 N.W.2d 709 (1977); Gates v. State, 160 Neb. 722, 71 

N.W.2d 460 (1955); Robeen v. State, 144 Neb. 910, 15 N.W.2d 69 (1944).
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by requesting a change of venue, the State has the burden of 

proving beyond a reasonable doubt. 8

[8] The State may prove venue like any other fact in a 

criminal case. 9 It need not be established by direct testimony, 

nor in the words of the information, but if from the facts in 

evidence the only rational conclusion which can be drawn is 

that the crime was committed in the county alleged, the proof 

is sufficient. 10

Section 29-1301 provides that the defendant has a right, 

except as otherwise provided in Neb. Rev. Stat. §§ 25-412.03 

and 29-1301.01 to 29-1301.03 (Reissue 2016), or unless it shall 

appear to the court by affidavits that a fair and impartial trial 

cannot be had therein, to be tried in the county in which the 

criminal offense is alleged to have been committed.

Section 29-1301.02 is applicable to the facts of this case. It 

provides in relevant part:

When an offense is committed in this state, . . . on a 

. . . motor vehicle . . . , the accused may be tried in any 

county through, on, or over which the . . . motor vehicle 

. . . passes in the course of its voyage or trip, or in the 

county in which the voyage or trip terminates.

Warlick does not challenge the constitutionality of § 29-1301.02.

The State presented evidence that the motor vehicle Warlick 

was a passenger of, which contained marijuana and a handgun, 

passed through York County. The deputy who arrested Warlick 

testified that he first observed Clark’s vehicle when it was 

traveling eastbound on Interstate 80 in York County with no 

front license plate and an obstructed rear license plate. Based 

on this traffic violation, the deputy initiated a traffic stop in 

York County by activating his patrol car’s emergency lights. 

Thus, there was evidence from which the trier of fact could 

8 See, State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018); Peterson v. 

Houston, 284 Neb. 861, 824 N.W.2d 26 (2012); State v. Laflin, supra note 

7. See, also, State v. Vejvoda, supra note 6.

9 State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010).

10 Id.
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find beyond a reasonable doubt that, pursuant to § 29-1301.02, 

the York County District Court was a proper venue for bringing 

the criminal action against Warlick.

[9,10] Warlick’s focus on the county where he was 

arrested is misplaced. Nowhere in the venue statutes does 

the Legislature make the place of arrest a circumstance of 

venue. Warlick asserts that the arresting deputy was outside 

of his primary jurisdiction and was not in “a fresh attempt 

to apprehend” the vehicle, as described by Neb. Rev. Stat. 

§ 29-215(2)(a) (Reissue 2016), when Warlick was detained and 

arrested. Section 29-215 defines the jurisdiction and powers of 

law enforcement officers. 11 Section 29-215 is not a venue statute. Warlick did not challenge the evidence obtained from the 

stop and arrest as illegally obtained in violation of § 29-215, 12

and it has no applicability to his assignment of error challenging venue.

2. Right to Counsel

[11-13] Having determined that the York County District 

Court was a proper venue, we next consider Warlick’s assertion that the district court erred by commencing the trial without appointing him counsel or standby counsel. An accused 

has a state and federal constitutional right to be represented 

by an attorney in all critical stages of a criminal prosecution 

which can lead to a sentence of confinement. 13 The same constitutional provisions also guarantee the right of an accused to 

self-representation. 14 Finally, these provisions guarantee that 

if an indigent defendant is to be imprisoned upon conviction, he or she has a right to court-appointed counsel at trial, 

regardless of whether the offense for which he or she may be 

11 State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).

12 See, e.g., State v. Cuny, 257 Neb. 168, 595 N.W.2d 899 (1999).

13 U.S. Const. amend. VI and XIV; Neb. Const. art. 1, § 11; Scott v. Illinois, 

440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979); State v. Wilson, 

252 Neb. 637, 564 N.W.2d 241 (1997).

14 See State v. Wilson, supra note 13.
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imprisoned is classified as petty, misdemeanor, or felony. 15 But 

an indigent defendant who refuses to accept offered counsel 

without justifiable reason and elects to proceed pro se has not 

been deprived of his or her constitutional right to counsel. 16

[14-16] In order to exercise the right of self-representation, a 

defendant must first make a knowing and intelligent waiver of 

the right to counsel. 17 Formal warnings do not have to be given 

by the trial court to establish a knowing, voluntary, and intelligent waiver of the right to counsel, however. 18 In determining 

whether there has been a knowing and voluntary waiver of the 

right to counsel, the key inquiry is whether the defendant was 

sufficiently aware of the right to have counsel and of the possible consequences of a decision to forgo the aid of counsel. 19

In determining whether a defendant’s waiver of counsel was 

voluntary, knowing, and intelligent, an appellate court applies 

a clearly erroneous standard of review. 20

Warlick concedes he voluntarily, knowingly, and intelligently waived his right to counsel at his initial arraignment. 

Nevertheless, Warlick asserts that when he moved for an 

extension of time to find private counsel, “it became apparent that [Warlick] no longer wished to waive his right to 

counsel” and instead expressed that he would be hiring private counsel. 21

While Warlick points out that he was given less time than 

he requested to find his own counsel, he does not assign as 

error the court’s failure to give him the full 120 days he had 

requested. Nor does Warlick argue that the 72 days given by 

the court was an unreasonable amount of time in which to 

15 See State v. Green, 238 Neb. 492, 471 N.W.2d 413 (1991).

16 See State v. Blunt, 197 Neb. 82, 246 N.W.2d 727 (1976).

17 State v. Wilson, supra note 13.

18 State v. Figeroa, supra note 2.

19 State v. Wilson, supra note 13.

20 State v. Figeroa, supra note 2.

21 Brief for appellant at 27.
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find counsel. 22 At the March 11, 2019, status hearing, when the 

court stated it would proceed with the trial scheduled for April 

24 without counsel if he did not have counsel by then, Warlick 

did not object or move for a further continuance.

[17] There must be a balance between a defendant’s right 

to counsel and the court’s discretionary powers to control the 

progression of a case, including granting or denying continuances. 23 Warlick failed to properly preserve and present the 

question of whether that balance was properly struck in this 

case. Nevertheless, we observe that there is nothing in the 

record explaining why 21⁄2 months was an insufficient period 

of time for Warlick to secure his own counsel. Further, Warlick 

points to no law in support of his premise that it was the district 

court’s duty on the day of trial, when Warlick appeared without 

the counsel he had said he intended to procure, “to inquire into 

the circumstances of his hiring an attorney.” 24

Warlick’s assignment of error is that the district court erred 

by proceeding with trial without appointing, sua sponte, an 

attorney or standby counsel for him—or at least inquiring anew 

on the date of trial whether Warlick wanted a court-appointed 

attorney or standby counsel and, if not, determining anew that 

Warlick had voluntarily, knowingly, and intelligently waived 

his right to counsel.

[18,19] To the extent Warlick is asserting that the court 

erred in failing to give him a new advisement, we have held 

that defendants need not be advised of the right to counsel 

at every stage of the criminal proceedings. 25 Though a new 

22 See, U.S. v. Leveto, 540 F.3d 200 (3d Cir. 2008); U.S. v. Merchant, 992 

F.2d 1091 (10th Cir. 1993); United States v. Solina, 733 F.2d 1208 (7th 

Cir. 1984); United States v. Leavitt, 608 F.2d 1290 (9th Cir. 1979); People 

v. Lawrence, 46 Cal. 4th 186, 205 P.3d 1062, 92 Cal. Rptr. 3d 613 (2009); 

People v. Gibson, 2017 IL APP (1st) 143566, 91 N.E.3d 398, 418 Ill. Dec. 

697 (2017); State v. Eddy, 68 A.3d 1089 (R.I. 2013).

23 See United States v. Leavitt, supra note 22.

24 Brief for appellant at 27.

25 See State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999).
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advisement may be required at sentencing despite a prior 

waiver, 26 Warlick was represented by counsel at sentencing. 

In conceding that he voluntarily, knowingly, and intelligently 

waived his right to counsel at the arraignment, Warlick necessarily concedes that he was sufficiently aware of the right 

to counsel and of the possible consequences of a decision to 

forgo the aid of counsel at that time. 27 A defendant’s knowledge during pretrial proceedings of a right to counsel does not 

simply vanish by the date of the trial. The trial court’s failure 

to re-advise Warlick on April 24, 2019, of his right to counsel was not reversible error and did not render any waiver by 

Warlick as unknowing.

Warlick’s argument that the court should have sua sponte 

appointed him counsel or standby counsel likewise lacks merit. 

First, the right to appointed counsel is only for someone who 

is indigent, 28 and though Warlick was ultimately allowed to 

proceed with his appeal in forma pauperis, Warlick does not 

assert he was indigent at the time of trial. Likewise, there was 

no finding below of indigency for purposes of appointment 

of counsel.

Second, Warlick repeatedly expressed that he did not want 

appointed counsel. The court advised Warlick at two bond 

review hearings and at his arraignment of the right to proceed 

with appointed counsel upon a showing of indigency. At the 

hearing on November 13, 2018, Warlick stated he did not 

intend to request that counsel be appointed to represent him 

and was waiving the right to counsel. At the hearing on March 

11, 2019, Warlick stated he was hiring counsel, but reiterated that he did not intend to ask for court-appointed counsel. 

At the March 11 hearing, Warlick stated he understood that 

the court would proceed with trial without counsel if he had 

26 See id.

27 See State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994), overruled on 

other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).

28 See State v. Green, supra note 15.
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not hired counsel by that time, and Warlick made no objection 

to that plan.

Thus, while during the course of the pretrial proceedings 

Warlick expressed he was no longer electing to represent 

himself pro se, at no point did Warlick withdraw his repeated 

waiver of the right to pursue appointed counsel in the event he 

was indigent. Warlick instead represented that he would hire 

private counsel. The court was under no obligation to delay 

trial indefinitely until such counsel was secured or to arrange, 

sua sponte, standby counsel to represent Warlick so as to prepare for a possibility that Warlick would not hire private counsel before the trial commenced. Assuming Warlick had a right 

to appointed counsel, he waived that right. We find no merit 

to Warlick’s argument that the court was obligated to conduct 

another waiver colloquy before proceeding with the trial on 

April 24, 2019.

[20] Lastly, inasmuch as Warlick argues that he had a right 

to appointed counsel by virtue of his unexplained absence 

after the noon recess, we agree with those courts that hold that 

when a pro se defendant absents himself or herself from the 

pro se defendant’s trial of his or her own volition, a trial judge 

is not constitutionally required to appoint counsel to represent 

the absent defendant. 29 Doing so, in effect, interferes with the 

defendant’s choices in the exercise of self-representation. 30

As we will discuss next, the record demonstrates that Warlick 

absented himself from his trial of his own volition.

3. Right to Be Present

[21,22] The Confrontation Clause of the Sixth Amendment 

to the U.S. Constitution and Neb. Const. art. I, § 11, provide 

29 See, Torres v. U.S., 140 F.3d 392 (2d Cir. 1998); People v. Parento, 235 

Cal. App. 3d 1378, 1 Cal. Rptr. 2d 444 (1991); People v. Brante, 232 P.3d 

204 (Colo. App. 2009); State v. Worthy, 583 N.W.2d 270 (Minn. 1998); 

State v. Lacey, 364 Or. 171, 431 P.3d 400 (2018); State v. Eddy, supra

note 22.

30 See State v. Eddy, supra note 22.
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for the accused’s right to be present in the courtroom at every 

stage of the trial. 31 Neb. Rev. Stat. § 29-2001 (Cum. Supp. 

2020) provides in part: “No person indicted for a felony shall 

be tried unless personally present during the trial.” A defendant’s right to be present at trial may be waived, but any waiver 

of this right must be knowing and voluntary. 32 Whether a 

defendant could and, in fact, did waive his or her right to attend 

all stages of his or her trial presents a question of law. 33

Similar to his arguments concerning the right to counsel, 

Warlick does not assert that he did not know of his right to 

be present at trial. Neither does Warlick exactly argue that his 

absence from trial was involuntary, though he focuses more on 

that element.

Warlick assigns that the district court erred in proceeding 

with the trial in his “absence and without counsel, and without 

a knowing and intelligent waiver of appearance” and argues 

that the trial court erred by failing to continue trial and follow certain procedures to attempt to determine the cause of 

his disappearance. According to Warlick, because the court did 

not follow such procedures, “[t]here was absolutely no evidence presented which would support a finding that [Warlick] 

knowingly and voluntarily waived his presence at trial . . . .” 34

We disagree.

Warlick asserts that the district court should have followed 

the example of the trial court in State v. Zlomke,

 35 which, 

after the defendant’s disappearance, had continued the trial 

for several days so that law enforcement would have time to 

attempt to locate the missing defendant, contact friends and 

family to attempt to determine the defendant’s whereabouts, 

31 See, Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 

(1970); State v. Fox, supra note 3.

32 See State v. Red Kettle, 239 Neb. 317, 476 N.W.2d 220 (1991).

33 State v. Fox, supra note 3.

34 Brief for appellant at 25.

35 State v. Zlomke, 268 Neb. 891, 689 N.W.2d 181 (2004).
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and search official records to determine if the defendant had 

been arrested or injured. The court then heard testimony from 

law enforcement, the clerk of the court, and the defendant’s 

family members before continuing with trial.

We find that the thoroughness of the inquiry conducted 

by the court in Zlomke was prudent. Nothing in this opinion 

should be read as discouraging it. Among other things, such 

procedures minimize the potential necessity of a new trial 

upon a later showing that the absence was actually unknowing or involuntary. But Warlick ultimately misunderstands the 

court’s obligations in such a situation, as well as the question 

presented on appeal.

[23-25] It is the duty of the court to have a defendant who is 

in custody brought into court when any proceeding connected 

with the trial of the case is taken. 36 However, it is the duty 

of a defendant out on bail to attend the sessions of the court, 

and the failure to do so constitutes voluntary absence on the 

defendant’s part and a waiver of the defendant’s right to be 

present. 37 The same reasoning applies to a defendant out on 

bail who initially appears but who fails to attend the trial after 

a recess. It is the duty of a defendant out on bail to continue to 

be present after a trial recess, and the defendant’s failure to do 

so constitutes voluntary absence on the defendant’s part and a 

waiver of the defendant’s right to be present.

[26,27] A waiver is the voluntary and intentional relinquishment of a known right, privilege, or claim, and may be demonstrated by or inferred from a person’s conduct. 38 We have 

explained that while a court should make a “reasonable effort 

to secure the presence of [a] defendant at any proceeding during the trial,” 39 if a defendant could “prevent the completion 

of the trial by voluntarily absenting himself, and thus tie the 

36 Scott v. State, 113 Neb. 657, 204 N.W. 381 (1925). See, also, id.

37 See id.

38 State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012).

39 Scott v. State, supra note 36, 113 Neb. at 661, 204 N.W. at 382.
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hands of justice, he would be permitted to take advantage of 

his own wrong.” 40

Here, Warlick and Clark were present for the commencement of their joint trial, but disappeared during the noon 

recess. The court waited over half an hour to see if they would 

reappear, before determining that they had voluntarily absented 

themselves. Although the trial proceeded without Warlick and 

without the court’s knowing the exact circumstances of the 

sudden disappearance of Warlick and Clark, the court had 

already made reasonable efforts to secure Warlick’s presence 

the day of trial and was under no further obligation to hunt him 

down before continuing.

[28,29] Moreover, the judgment was not final until Warlick 

was sentenced. 41 In determining on direct appeal whether 

a defendant has waived the right to be present, we do not 

merely look to the evidence available at the moment the court 

pronounced the defendant’s absence to be voluntary, but at 

the entirety of the evidence in the record. Warlick had an 

opportunity, through his motion for a new trial, to present any 

evidence that his absence was, contrary to initial indications, 

involuntary or unknowing. He did not do so. Warlick was 

the person possessing the most knowledge as to the circumstances of his own disappearance. We apply to a defendant, 

who was out on bail and has failed without explanation to be 

present at trial, the fundamental proposition that the burden 

to produce evidence will rest upon the party who possesses 

positive and complete knowledge concerning the existence of 

facts which the other party would otherwise be called upon to 

negative, or if the evidence to prove a fact is chiefly within the 

party’s control. 42

Warlick’s unexplained, multiple-day disappearance with 

Clark, his codefendant, after the noon recess was sufficient 

40 Id. at 660, 204 N.W. at 382.

41 See State v. Melton, ante p. 159, 953 N.W.2d 246 (2021).

42 See State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014).
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to support the district court’s finding that Warlick knowingly 

and voluntarily waived his presence at trial. We find no merit 

to any argument that the court violated Warlick’s right to 

be present.

4. Sufficiency of Evidence

[30] Lastly, we consider Warlick’s attacks on the sufficiency 

of the evidence to support his convictions. In reviewing a 

criminal conviction for a sufficiency of the evidence claim, 

whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does 

not resolve conflicts in the evidence, pass on the credibility of 

witnesses, or reweigh the evidence; such matters are for the 

finder of fact. 43 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. 44

[31-33] A conviction cannot be based upon suspicion, speculation, the weakness of the status of the accused, the embarrassing position in which the accused finds himself or herself, 

or the mere fact that some unfavorable circumstances are 

not satisfactorily explained. 45 But a criminal conviction may 

soundly be based solely on circumstantial evidence. And a 

conviction may be based on circumstantial evidence regardless 

of whether the inferences of guilt of each line of circumstantial 

proof are stronger than the inferences of nonguilt. 46 The circumstantial evidence, like direct evidence, is considered as an 

interrelated whole. 47 The sufficiency of the evidence is often 

43 State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020).

44 Id.

45 State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999); State v. Eberhardt, 

176 Neb. 18, 125 N.W.2d 1 (1963).

46 See State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).

47 See id.
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tested against theoretical and speculative possibilities not fairly 

raised by the record, and inferences are sometimes considered 

which, though entirely possible or even probable, are drawn 

from evidence which the jury may have disbelieved. 48

(a) Possession and Carrying

Warlick first asserts that there was insufficient evidence 

from which a reasonable trier of fact could determine beyond 

a reasonable doubt that Warlick had actual or constructive possession of the marijuana or the firearm found under the spare 

tire of the vehicle. Warlick thus asserts the evidence was insufficient to convict him of possession of a controlled substance 

with intent to distribute 49; distributing or possessing marijuana 

without affixing an official stamp, label, or other indicium of 

payment of tax 50; possession of a deadly weapon during the 

commission of a felony 51; possession of a deadly weapon by a 

prohibited person 52; possession of a stolen firearm 53; and carrying a concealed weapon. 54

Each of these crimes, with the exception of carrying a 

concealed weapon, has possession as an element. 55 Further, 

we find that Warlick’s assignments of error and arguments 

regarding possession charges attack with sufficient specificity 

the element of “carrying” a concealed weapon “on or about 

his or her person.” 56 According to Warlick, the evidence was 

48 Id.

49 § 28-416.

50 § 77-4309.

51 § 28-1205.

52 § 28-1206.

53 § 28-1212.03.

54 § 28-1202.

55 See, §§ 28-416, 77-4309, 28-1205, 28-1206, 28-1212.03, and 28-1202; In 

re Interest of Shea B., 3 Neb. App. 750, 532 N.W.2d 52 (1995).

56 See § 28-1202.
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insufficient for all these convictions because the marijuana 

and firearm were not found on Warlick’s person, it was not 

Warlick’s vehicle where these items were found, the marijuana 

and firearm were underneath a spare tire accessible only from 

the back seat and with what was presumably Clark’s professional hair product, Warlick was not sitting in the back seat 

but instead was sitting in the front passenger seat, and Warlick 

could not have smelled the marijuana that was wrapped in 

plastic wrap with a masking agent. Regarding the firearm, 

Warlick further points out that it was in a separate bag, with 

the hair product, next to the marijuana. Warlick argues that 

any inconsistency in Warlick’s and Clark’s descriptions of their 

travels to the arresting deputy was insufficient to reasonably 

infer that Warlick possessed the firearm or the marijuana.

With the exception of the element of being a felon for purposes of the conviction of possession of a deadly weapon by 

a prohibited person, which will be addressed in the next section, Warlick does not specifically assign and argue that the 

evidence was insufficient to establish any other elements of 

these “possession” crimes—such as an intent to deliver for the 

crime of possession of a controlled substance with intent to 

deliver or the weapon being stolen for purposes of the crime 

of possessing a stolen firearm. Therefore, we do not address 

those elements.

(i) Crimes of Possession of 

Prohibited Substance

Black’s Law Dictionary defines “possess” as “[t]o have 

in one’s actual control; to have possession of.” 57 It defines 

“possession” to include, among other things, both actual and 

constructive possession, 58 and our common law similarly recognizes both. 59

57 Black’s Law Dictionary 1351 (10th ed. 2014).

58 See id.

59 State v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014).
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[34-36] Actual possession is synonymous with physical possession. 60 Constructive possession, in contrast, may be proved 

by mere ownership, dominion, or control over contraband 

itself, coupled with the intent to exercise control over the 

same. 61 We have held under the relevant statutory language, 

read as a whole, that certain crimes involving “possession,” 

such as being a person who “uses a firearm . . . to commit any 

felony” or who unlawfully “possesses a firearm . . . during the 

commission of any felony,” 62 do not include constructive possession. 63 However, we have long held under the language of 

the criminal narcotics statutes here at issue that possession may 

be either actual or constructive. 64

[37-39] Two persons may have constructive possession, or 

one may have actual possession and the other have constructive possession. 65 Constructive possession may be proved by 

direct or circumstantial evidence and may be shown by the 

accused’s proximity to the item at the time of the arrest or by a 

showing of dominion over it. 66 Thus, possession of a controlled 

substance means either (1) knowingly having it on one’s person 

or (2) knowing of the substance’s presence and having control 

over the substance. 67

[40-42] Warlick is correct that mere presence at a place 

where the item in question is found is not sufficient to show 

constructive possession. 68 But possession of an illegal substance can be inferred from a vehicle passenger’s proximity to the substance or other circumstantial evidence that 

60 Id.

61 Id.

62 § 28-1205.

63 See State v. Garza, supra note 45.

64 See State v. Schuller, supra note 59.

65 Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710 (1960).

66 See State v. Garcia, 216 Neb. 769, 345 N.W.2d 826 (1984).

67 See, e.g., State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

68 See id.
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affirmatively links the passenger to the substance. 69 Evidence 

that a defendant had constructive possession of a drug with 

knowledge of its presence and its character as a controlled 

substance is sufficient to support a finding of possession and to 

sustain a conviction for unlawful possession. 70

[43-45] We have said that a passenger’s joint possession 

of a controlled substance found in a motor vehicle can be 

established by evidence that (1) supports an inference that the 

driver was involved in drug trafficking, as distinguished from 

possessing illegal drugs for personal use; (2) shows the passenger acted suspiciously during a traffic stop; and (3) shows 

the passenger was not a casual occupant but someone who 

had been traveling a considerable distance with the driver. 71

On this first factor, we have explained that a finder of fact 

may reasonably infer that a driver with a possessory interest in a vehicle who is transporting a large quantity of illegal 

drugs would not invite a passenger into the vehicle unless the 

passenger knew of the valuable cargo contained therein and 

was conscious of the risks and ramifications involved with 

transporting it. 72 On the second factor, we have explained that 

possession of a controlled substance can be inferred if the 

vehicle’s occupant acts oddly during the traffic stop, gives 

explanations that are inconsistent with the explanations of 

other occupants of the vehicle, or generally gives an implausible explanation for the travels. 73

[46] We have never held that in order to support a reasonable inference of constructive possession, the illegal substance 

must be of such proximity to the passenger of a vehicle as 

69 Id.

70 State v. Garcia, supra note 66.

71 State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011); State v. Draganescu, 

supra note 67.

72 See, State v. McGee, supra note 71; State v. Howard, 282 Neb. 352, 803 

N.W.2d 450 (2011).

73 State v. Howard, supra note 72.
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to be conveniently accessed or within immediate physical 

reach. While such proximity may under the circumstances 

create a stronger inference of the element of possession, it is 

not necessary to prove the exercise of ownership, dominion, 

or control over contraband, coupled with the intent to exercise 

control over it. 74

We hold that there was sufficient evidence from which a 

rational trier of fact could find that Warlick had possession of 

the marijuana for purposes of the crimes of possession of a 

controlled substance with intent to deliver 75 and distributing or 

possessing marijuana without affixing an official stamp, label, 

or other indicium of payment of tax. 76

First, there was evidence supporting an inference that Clark, 

the driver, was involved in drug trafficking, as distinguished 

from possessing illegal drugs for personal use. The deputy 

testified that 4 pounds of marijuana were seized and that based 

on his training and experience, this amount is consistent with 

distribution rather than personal use.

Second, there was evidence that both Warlick and Clark 

acted suspiciously during the stop. The deputy testified that 

Clark told him the purpose of his trip was to go gambling in 

Las Vegas, and the deputy stated that “[w]hen asking [Clark] 

questions, he seemed to pause, think about his answer before 

answering.” Warlick provided the deputy a different story, telling him that Warlick and Clark had made a trip to California, 

and Warlick never mentioned gambling or a trip to Las Vegas. 

While it is conceivable that these two versions of Warlick 

and Clark’s travels have an innocent explanation, they are 

sufficiently inconsistent to support an inference of constructive possession. 77

74 See, State v. Schuller, supra note 59; State v. Draganescu, supra note 67; 

State v. Frieze, 3 Neb. App. 263, 525 N.W.2d 646 (1994). See, also, State 

v. McGee, supra note 71.

75 See § 28-416.

76 See § 77-4309.

77 See State v. McGee, supra note 71.
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Finally, both Warlick and Clark indicated Warlick had been 

traveling with Clark for a considerable distance over multiple state lines. Thus, Warlick was not a casual occupant of 

Clark’s vehicle.

(ii) Crimes of Possession 

of Weapon

This same evidence supports the trier of fact’s finding that 

Warlick was in constructive possession of a weapon for purposes of possession of a deadly weapon during the commission 

of a felony, 78 possession of a deadly weapon by a prohibited 

person, 79 and possession of a stolen firearm. 80 In addition to 

this evidence, we find Neb. Rev. Stat. § 28-1212 (Reissue 

2016) applicable to these weapons convictions. Section 28-1212 

states that the presence of a firearm in a motor vehicle is prima 

facie evidence that it is possessed by all persons occupying the 

motor vehicle when it is found.

Section 28-1212 provides in full:

The presence in a motor vehicle other than a public 

vehicle of any firearm or instrument referred to in section 28-1203, 28-1206, 28-1207, or 28-1212.03 shall be 

prima facie evidence that it is in the possession of and 

is carried by all persons occupying such motor vehicle 

at the time such firearm or instrument is found, except 

that this section shall not be applicable if such firearm or 

instrument is found upon the person of one of the occupants therein.

Prima facie evidence means that proof presented on an 

issue is sufficient to submit the issue to the fact finder for 

disposition and precludes a directed verdict against the party 

with the burden of proof on the issue in a jury trial or exclusion 

of a particular issue from consideration in a nonjury trial. 81

78 See § 28-1205.

79 See § 28-1206.

80 See § 28-1212.03.

81 State v. Jasper, 237 Neb. 754, 467 N.W.2d 855 (1991).
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Thus, we find no merit to Warlick’s argument that the evidence was insufficient to support the element of possession in 

the crimes of possession of a deadly weapon during the commission of a felony; 82 possession of a deadly weapon by a prohibited person, 83 and possession of a stolen firearm. 84

(iii) Crime of Carrying Concealed Weapon

We find merit, however, to Warlick’s contention that the evidence was insufficient to support a finding that he was carrying a weapon concealed on or about his person, in violation of 

§ 28-1202, a Class I misdemeanor.

[47] Section 28-1202 sets forth that “any person who carries 

a weapon or weapons concealed on or about his or her person, 

such as a handgun, a knife, brass or iron knuckles, or any other 

deadly weapon, commits the offense of carrying a concealed 

weapon.” As noted by the Nebraska Court of Appeals in State 

v. Blackson,

 85 possession is not an element of a violation of 

§ 28-1202. It follows that constructive possession does not 

establish the elements of § 28-1202 of “carr[ying]” a concealed 

weapon “on or about his or her person.”

In State v. Garza, we equated “carrying” a weapon with 

actual possession and differentiated it from constructive possession. 86 In rejecting the inclusion of constructive possession 

for the crime of being a person who “uses a firearm . . . to 

commit any felony” or who unlawfully “possesses a firearm 

. . . during the commission of any felony,” in violation of 

§ 28-1205, 87 we explained that the possession prong prohibited 

“carrying” deadly weapons while under certain circumstances, 

82 See § 28-1205.

83 See § 28-1206.

84 See § 28-1212.03.

85 State v. Blackson, 1 Neb. App. 94, 487 N.W.2d 580 (1992).

86 See State v. Garza, supra note 45.

87 But see § 28-1205(4) (providing, through amendments pursuant to 2009 

Neb. Laws, L.B. 63, § 14, that “[p]ossession” of deadly weapon may be 

proved through constructive possession immediately prior to, or immediately after, commission of felony). 
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i.e., when persons commit felonies. 88 We held that the purpose 

of § 28-1205 is to prevent the threat of violence and accompanying danger to human life that is present whenever one 

has a deadly weapon “within one’s immediate control” during the commission of a felony. 89 Therefore, we explained, to 

include constructive possession for the “possession” described 

in § 28-1205 would be “inconsistent with the plain meaning of 

possession and the purpose of § 28-1205.” 90

[48,49] A penal statute is to be strictly construed in the 

context of the object sought to be accomplished, the evils and 

mischiefs sought to be remedied, and the purpose sought to 

be served. 91 The phrase “to carry” is not generally defined by 

the criminal statutes, but § 28-1202 plainly limits the place 

of the weapon’s concealment to “on or about his or her person.” In Blackson, the Court of Appeals relied on Black’s 

Law Dictionary’s definition of “carrying arms or weapons” 

as “wearing, bearing, or carrying them ‘upon the person or in 

the clothing or in a pocket, for the purpose of use, or for the 

purpose of being armed and ready for offensive or defensive 

action in case of a conflict with another person.’” 92

In applying § 28-1202 to drivers of motor vehicles, we have 

repeatedly held that “[a] weapon is concealed on or about the 

person if it is concealed in such proximity to the driver of an 

automobile as to be convenient of access and within immediate physical reach.” 93 That is not to say that for the evidence 

to be sufficient to convict a driver of violating § 28-1202, 

88 See id. See, also, State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989), 

disapproved on other grounds, State v. Irish, 292 Neb. 513, 873 N.W.2d 

161 (2016).

89 State v. Garza, supra note 45, 256 Neb. at 765, 592 N.W.2d at 494.

90 Id.

91 See State v. Garza, supra note 45.

92 State v. Blackson, supra note 85, 1 Neb. App. at 98, 487 N.W.2d at 583.

93 State v. Saccomano, 218 Neb. 435, 436, 355 N.W.2d 791, 792 (1984). 

Accord State v. Goodwin, 184 Neb. 537, 169 N.W.2d 270 (1969).
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the weapon must have been found on the driver’s person at the 

time it was seized or while driving, but there must be some 

evidence beyond mere speculation that the weapon was within 

immediate physical reach on or about the date the defendant is 

charged with committing the crime. 94

[50] We see no reason not to apply this standard likewise to 

the passenger of a motor vehicle. And it is consistent with our 

description in Garza of “carrying” a weapon, which involves 

the weapon’s being “within one’s immediate control.” 95 It 

is also consistent with other jurisdictions’ understanding of 

similar statutes that to be “carried,” the weapon must be within 

such physical proximity to be of immediate and direct access 

for prompt and immediate use. 96 Thus, a weapon is concealed 

on or about the person if it is concealed in such proximity to 

the passenger of a motor vehicle as to be convenient of access 

and within immediate physical reach.

But, as Warlick points out, there was no evidence that the 

firearm was convenient of access and within his immediate 

physical reach. While the deputy testified that the weapon 

was accessible from the back seat, Warlick was not in the 

back seat at the time of the stop. There was no evidence presented that Warlick had been in the back seat before the stop. 

Furthermore, even though the cargo area may have been accessible from the back seat, the firearm was located within a bag 

that was itself located underneath the spare tire within the 

cargo area.

94 See, State v. Senn, 295 Neb. 315, 888 N.W.2d 716 (2016); State v. 

Saccomano, supra note 93; State v. Goodwin, supra note 93; Kennedy 

v. State, supra note 65; In re Interest of Cory P., 7 Neb. App. 397, 584 

N.W.2d 820 (1998); In re Interest of Shea B., supra note 55.

95 State v. Garza, supra note 45, 256 Neb. at 765, 592 N.W.2d at 494.

96 See, e.g., Littrell v. State, 699 So. 2d 962 (Ala. Crim. App. 1997); People 

v. Smith, 72 Cal. App. 2d Supp. 875, 164 P.2d 857 (1946); State v. Hinkle, 

970 So. 2d 433 (Fla. App. 2007); People v. Niemoth, 322 Ill. 51, 152 N.E. 

537 (1926); Corbin v. State, 237 Md. 486, 206 A.2d 809 (1965); State v. 

Prigge, 907 N.W.2d 635 (Minn. 2018); State v. Williams, 636 P.2d 1092 

(Utah 1981).
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The evidence was insufficient to demonstrate Warlick was 

a “person who carries a weapon or weapons concealed on or 

about his or her person” for purposes of § 28-1202. Therefore, 

we reverse Warlick’s conviction and sentence for violating 

§ 28-1202 and remand the cause with directions to vacate.

(b) Prior Felony Convictions

For his conviction of possession of a deadly weapon by a prohibited person, in violation of § 28-1206, Warlick alternatively 

argues that there was insufficient evidence to support the element of being a “prohibited person.” Under § 28-1206(1)(a)(i), 

a person who has previously been convicted of a felony is 

a prohibited person. Warlick argues that exhibits 14 and 15, 

showing prior felony convictions, were inadmissible because 

they failed to affirmatively demonstrate he had counsel or had 

waived counsel in relation to those convictions. Warlick does 

not dispute that the prior convictions reflected in the exhibits, 

if admissible, established he was a felon.

Warlick’s argument is premised on case law that has since 

been overruled. In a line of cases, we had held that a prior 

conviction could not be considered in the absence of affirmative proof that the defendant had or waived counsel at the time 

of conviction. 97 At the time of its inception, this line of case 

law was supported by the opinion of the U.S. Supreme Court 

in Burgett v. Texas,

 98 which prohibited courts from presuming 

that a prior conviction was obtained in compliance with the 

Sixth Amendment. However, in State v. Vann,

 99 we recognized 

that the U.S. Supreme Court case of Parke v. Raley 100 clarified 

that Burgett applied only in the narrow context in which it was 

97 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); State v. Portsche, 258 

Neb. 926, 606 N.W.2d 794 (2000).

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

99 State v. Vann, supra note 4.

100Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391 (1992).
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decided—when state criminal defendants’ federal constitutional 

right to counsel had not yet been recognized.

[51] In Vann, we concluded that as a factual matter, it is 

unlikely that many modern convictions are obtained in violation of a defendant’s Sixth Amendment rights, due to the 

recognition of a constitutional right to counsel in Gideon v. 

Wainwright 101 and the further recognition of that right in state 

statutes or rules of criminal procedure. 102 Accordingly, we 

held in Vann that any conviction after Gideon is 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. 103

Exhibit 14 is evidence of a prior conviction of felon in 

possession of a firearm in Illinois in 2017, and exhibit 15 is 

evidence of a prior conviction of aggravated vehicle hijacking, 

burglary, and aggravated unlawful restraint in Illinois in 2010. 

Both of these convictions are post-Gideon and thus are entitled 

to a presumption of regularity.

We also observe that exhibit 15 explicitly states that Warlick 

was appointed a public defender on June 16, 2009, and there is 

no indication that counsel sought to withdraw or that Warlick 

proceeded pro se at any time before he pled and was found 

guilty on June 10, 2010. Further, exhibit 14 indicates that there 

was a motion to withdraw as attorney filed on June 30, 2016, 

and an appearance, possibly by a different attorney, filed on 

July 26. There is no indication that Warlick proceeded pro se 

or was not represented by counsel at the time he pled guilty on 

October 25, 2017.

101Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 

(1963).

102 See, e.g., Neb. Rev. Stat. § 29-3903 (Cum. Supp. 2018).

103 State v. Vann, supra note 4.
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We find no merit to Warlick’s assertion that, because the 

State failed to affirmatively demonstrate Warlick had or waived 

counsel, exhibits 14 and 15 were inadmissible for purposes of 

establishing the element of being a felon for the crime of felon 

in possession in violation of § 28-1206.

VI. CONCLUSION

For the foregoing reasons, we affirm all of Warlick’s convictions with the exception of the misdemeanor violation of carrying a concealed weapon in violation of § 28-1202. We reverse, 

and remand with directions for the district court to vacate the 

conviction for the violation of § 28-1202 and the sentence for 

that violation.

Affirmed in part, and in part reversed 

and remanded with directions.