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314 Nebraska Reports

STATE V. JOHNSON

Cite as 314 Neb. 20

State of Nebraska, appellee, v. 

Lindsay M. Johnson, appellant.

___ N.W.2d ___

Filed April 14, 2023. No. S-22-460.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the determination made by the 

court below.

2. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of counsel may be determined on direct appeal is a 

question of law.

3. Trial: Witnesses. It is for the trial court to determine the extent to which 

a sequestration order will be applied in a given case.

4. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction.

5. Sentences: Judges: Words and Phrases: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal 

in the absence of an abuse of discretion by the trial court. A judicial 

abuse of discretion exists only when the reasons or rulings of a trial 

judge are clearly untenable, unfairly depriving a litigant of a substantial 

right and denying a just result in matters submitted for disposition.

6. Preliminary Hearings: Plea in Abatement. The proper method of 

objecting to trial in the district court for the insufficiency of a preliminary hearing, or the failure to provide one at all, is by motion to quash 

or a plea in abatement.

7. Preliminary Hearings: Plea in Abatement: Evidence: Appeal and 

Error. Any error by the trial court in overruling a defendant’s plea 

in abatement alleging there was insufficient evidence presented at a 

Nebraska Supreme Court Online Library

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

04/14/2023 09:06 AM CDT
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preliminary hearing to bind the case over for trial is cured by a subsequent finding at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence.

8. Preliminary Hearings: Convictions: Evidence. A failure to hold a 

preliminary hearing is cured by a subsequent conviction supported 

by sufficient evidence that the defendant is guilty beyond a reasonable doubt.

9. Preliminary Hearings: Convictions: Evidence: Probable Cause. If 

the trier of fact, upon sufficient evidence, has found the defendant guilty 

of the charged crime beyond a reasonable doubt, the defendant cannot 

show prejudice resulting from trial counsel’s failure to object to the lack 

of evidence supporting probable cause at a preliminary hearing, or to 

object to the failure to hold a preliminary hearing at all.

10. Effectiveness of Counsel: Records: Appeal and Error. The record is 

sufficient to review the merits of the ineffective performance claims if 

it establishes either that trial counsel’s performance was not deficient, 

that the appellant will not be able to establish prejudice as a matter of 

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

plausible trial strategy.

11. Trial: Witnesses. Sequestration is based on the belief that not hearing 

other witnesses’ testimony tends to better elicit the truth and promote the 

ends of justice.

12. Trial: Waiver: Appeal and Error. A litigant’s failure to make a timely 

objection waives the right to assert prejudicial error on appeal.

13. Appeal and Error. An appellate court will not consider an argument or 

theory that is raised for the first time on appeal.

14. ____. When an issue is raised for the first time in an appellate court, it 

will be disregarded inasmuch as a lower court cannot commit error in 

resolving an issue never presented and submitted to it for disposition.

15. Self-Defense: Jury Instructions. Only where the jury could reasonably 

find that the defendant’s use of force was justified should the trial court 

instruct the jury on self-defense.

16. Self-Defense: Jury Instructions: Evidence. If the trial evidence does 

not support a claim of self-defense, the jury should not be instructed 

on it.

17. Self-Defense. To successfully assert the claim of self-defense, a defendant must have a reasonable and good faith belief in the necessity of 

using force and the force used in defense must be immediately necessary 

and justified under the circumstances.

18. Self-Defense: Jury Instructions: Evidence. To instruct on self-defense, 

it is not enough that the defendant subjectively believed in the need 
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STATE V. JOHNSON

Cite as 314 Neb. 20

to use force for self-protection; the defendant must produce evidence 

that this subjective belief was also objectively reasonable.

19. Sentences. The sentencing court is not limited to any mathematically 

applied set of factors.

20. ____. The appropriateness of a sentence is necessarily a subjective judgment that includes the sentencing judge’s observations of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

21. Sentences: Verdicts: Evidence: Presentence Reports. So long as it 

does not concern a fact exposing the defendant to a greater punishment 

than that authorized by the jury’s guilty verdict, it is not improper for 

a sentencing judge to make factual findings for purposes of sentencing 

relating to the circumstances of the crime and which are supported by 

the evidence at trial, the presentence investigation report, or evidence 

submitted at the sentencing hearing.

22. Sentences. In a sentencing hearing, the court generally has broad discretion concerning the scope and type of information to be considered.

Appeal from the District Court for Madison County: James 

G. Kube, Judge. Affirmed.

Timothy S. Noerrlinger, of Naylor & Rappl Law Office, for 

appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

The defendant appeals her conviction and sentence on one 

count of assault in the second degree and one count of negligent child abuse. Represented by new counsel, the defendant 

asserts trial counsel was ineffective by failing to move to 

quash the second count of the operative complaint, because 

no preliminary hearing was held in district court to determine 

probable cause and no plea was entered on that charge. She 
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STATE V. JOHNSON

Cite as 314 Neb. 20

also asserts trial counsel was ineffective by failing to ask 

more questions during voir dire about two jurors’ relationships 

with one of the State’s witnesses. The defendant argues the 

trial court erred by excepting from its sequestration order an 

eyewitness to the crimes who was the wife of one victim and 

mother of the other. She also asserts the court erred by refusing 

to give a self-defense instruction. Finally, she argues the court 

imposed excessive sentences by giving her jail time rather than 

probation. We affirm.

II. BACKGROUND

Lindsay M. Johnson was found guilty following a jury trial 

of assault in the second degree and of negligent child abuse. 

She was originally charged on July 15, 2020, with one count, 

assault in the second degree, in violation of Neb. Rev. Stat. 

§ 28-309(1)(a) and (b) (Reissue 2016), a Class IIA felony. 

Johnson waived appearance at the arraignment hearing, but did 

not waive the preliminary hearing, which was held, and she 

entered a plea of not guilty. On March 18, 2021, the State filed 

an amended information setting forth the same charges.

1. Count II

On June 1, 2021, the State filed another amended information, this time setting forth two counts. Count I charged assault 

in the second degree, in violation of § 28-309(1)(a) and (b), a 

Class IIA felony. Count II charged intentional child abuse, in 

violation of Neb. Rev. Stat. § 28-707(1)(a) through (f) (Cum. 

Supp. 2022), a Class IIIA felony. The State confirmed that 

count II was a “direct file” and that a preliminary hearing 

had been held only on count I. Defense counsel explained, 

“[I]nitially there was a child abuse charge filed at the county 

court level and at the prelim that child abuse charge was dismissed. However, the State allegedly has more information 

now and has re-filed.”

At a pretrial hearing on June 8, 2021, the State said there 

was to be an arraignment on the second charge that day. 
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STATE V. JOHNSON

Cite as 314 Neb. 20

Defense counsel requested a continuance of the previously 

scheduled trial, due to the additional charge. The court granted 

the continuance and scheduled the arraignment and pretrial 

hearing for July 9. However, following a discussion in which 

the judge granted a motion to recuse, the judge set trial for 

September 13 with a different judge.

The hearing in front of the new judge addressed only 

Johnson’s bond. On August 2, 2021, defense counsel appeared 

before the court to schedule an evidentiary hearing, noting that 

“then we do have a prelim on the child abuse charge.” The 

hearing to address all pending matters before trial was scheduled for August 23.

At the hearing on August 23, 2021, the State explained, “We 

have the preliminary hearing set today I believe on the child 

abuse,” but it did not object to a motion by defense counsel to 

continue the scheduled hearing on certain defense motions. All 

matters, including the preliminary hearing, were postponed in 

order for the defense to hire its own expert. A pretrial conference was set for September 16, when the parties would know 

more about the status of the case.

At that pretrial conference, defense counsel noted that “we 

have a few motions and a preliminary hearing that we need to 

schedule” before the trial. The preliminary hearing and hearing 

on defense motions was scheduled for September 30, 2021, 

with the understanding that it may have to be rescheduled, 

which it apparently was. No hearing is reflected in the record 

until December 16. At that hearing, defense counsel, who had 

been appointed by the court, moved to withdraw. The court 

overruled the motion.

At a hearing on January 27, 2022, defense counsel raised 

that the matter needed to be set for trial and “have one date 

set for potential other pretrial motions” and a status hearing. 

The preliminary hearing to determine probable cause on count 

II was not specifically discussed. Bond was raised due to 

Johnson’s continuing issues with testing positive for marijuana. 

A hearing was scheduled for February 9.
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Cite as 314 Neb. 20

On February 9, 2022, defense pretrial motions were 

addressed. Also discussed was Johnson’s bond. Again, there 

was no discussion of a preliminary hearing on count II.

Ultimately, no preliminary hearing on count II is reflected in 

the record to have occurred in district court. A formal arraignment was never held, and a plea was never entered to count 

II. At no point did defense counsel enter an express waiver of 

Johnson’s right to a preliminary hearing on count II. Defense 

counsel did not move to quash count II of the amended 

information.

2. Jury Selection

During voir dire, the court made numerous general inquiries 

of the jurors, including whether any of them knew Johnson, 

were biased for or against Johnson or the county attorney’s 

office, had formed or expressed an opinion about Johnson, 

were related to any of the parties or attorneys, or had any 

reason why they could not sit as a fair and impartial juror in 

the case. The State, during its voir dire, described who the 

witnesses at trial would be and asked whether anyone knew 

any of them. One of the jurors said he goes to church with the 

State’s proposed witness, Officer Jorge Rodriguez. He did not 

think that would affect him one way or another in the case. A 

second juror stated he had worked with Rodriguez professionally through his job as a paramedic and firefighter.

Although defense counsel asked several questions of the 

venire during his voir dire, no further inquiry was made of 

the two jurors regarding how their relationship with Rodriguez 

may impact their ability to be a fair and impartial juror. Neither 

juror was subjected to peremptory challenges or challenges for 

cause. They both were impaneled and took part in convicting Johnson.

3. Sequestration

After opening statements and before the State called its 

first witness, the court took up a motion by defense counsel to sequester the witnesses. When asked if it had any 
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STATE V. JOHNSON

Cite as 314 Neb. 20

objection, the State responded, “No. As I said, I’ll designate Aubrey [Michaels], but, Rodriguez, you’re first anyway.” 

Aubrey Michaels is the wife of one the victims and the mother 

of the other victim and was a witness to the incident that led to 

the State’s charges against Johnson. The court responded, “All 

right. If you’re a witness and you have not been designated, 

please leave the courtroom at this time.” Johnson did not challenge or object to the State’s “designation” of Aubrey or her 

subsequent direct or rebuttal testimony. The record is not clear, 

but Aubrey was arguably present in the courtroom during the 

presentation of all of the evidence.

4. Trial

Several facts were not in dispute at trial. On September 

17, 2019, an altercation occurred between Johnson and Jared 

Michaels, which culminated in Johnson’s throwing a metal 

folding chair that struck and injured Jared. Jared and Johnson 

are stepsiblings.

The incident began in a parking lot. Jared; his wife, Aubrey; 

their 5-year-old daughter; and their 1-year-old son had arrived 

home from grocery shopping. Jared and Aubrey were unloading 

groceries from the back of their van, when Johnson approached 

from an alley. The alley separated the building containing a 

local bar called the Office Bar from the building where Jared 

and his family lived.

Jared had parked facing the side wall of the building containing the Office Bar. The van was parallel to a sidewalk that 

ran past the front of the building where the entrance to the 

Office Bar was located.

Separating the parking lot from that sidewalk was a concrete 

wall, which was 3 feet 6 inches in height. The concrete wall 

ran along the sidewalk as a barrier to the parking lot and ended 

where the wall joined the front corner of the building containing the Office Bar. Jared and Aubrey’s van was parked in the 

second stall from the concrete wall, effectively inside a corner 

formed by the side of the building and the concrete wall.
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STATE V. JOHNSON

Cite as 314 Neb. 20

When Johnson saw Jared and Aubrey’s daughter, Johnson 

said something to her. At this point, Jared and Johnson were on 

the same side of the concrete wall. Words were then exchanged 

between Jared and Johnson. The nature of what was said 

was in dispute, but the parties agreed that some of the words 

exchanged between Jared and Johnson were not pleasant.

Jared never left the parking lot, but Johnson eventually made 

her way to the sidewalk on the other side of the concrete wall. 

She walked along that sidewalk, in the direction of the Office 

Bar, on the opposite side of the wall from Jared. She eventually reached the end of the concrete wall and went a couple 

of steps beyond the parking lot to the front of the Office Bar. 

There, she retrieved a metal folding chair. She turned back 

toward Jared and hurled the chair over the concrete wall to 

where Jared stood on the other side. Then she ran away.

In opening statements, the prosecution asserted that the 

words Johnson said to the daughter were very upsetting and that 

Jared tried to tell Johnson to watch her language. Eventually, 

Johnson threw the chair at Jared’s face, and he suffered injuries 

as a result. The prosecution argued that Johnson’s actions had 

endangered the daughter’s mental health.

Defense counsel in opening statements disputed that Johnson 

said anything inappropriate to the daughter. He admitted there 

was an argument between Jared and Johnson, which escalated. 

The daughter may have seen the “chair-throwing incident,” but 

she was inside the van when that occurred. Defense counsel 

argued that when Johnson threw the chair, Jared was following Johnson and Johnson was “just trying to get away from 

the situation.”

(a) Rodriguez

Rodriguez was the State’s first witness. He testified that 

he arrived at the Michaels’ apartment approximately 45 minutes after the incident in question, after Jared and Aubrey 

had stopped at the police station to report the incident. He 

testified that the daughter was visibly scared. The daughter 
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STATE V. JOHNSON

Cite as 314 Neb. 20

related something to him about a “crazy lady” and how “‘daddy 

was there to protect them.’” Rodriguez observed that Jared had 

a swollen thumb and was bleeding from his shin. During direct, 

Rodriguez’ testimony laid foundation for photographs of the 

area and of Jared’s injuries, as well as a surveillance video 

from across the street. In rebuttal, Rodriguez elaborated that 

the alley was more than 5 feet from where the van was parked 

in the parking lot.

(b) Aubrey

Aubrey was the second witness to testify. She testified that 

she, Jared, and their two children had exited the van and were 

unloading groceries from the back of it, when she heard yelling. She watched as Johnson, whom she recognized, walked 

from an alley into the parking lot and toward the van.

As Johnson was walking toward Aubrey’s daughter, Johnson 

asked the daughter whether Jared and Aubrey were her parents. 

When the daughter responded that they were, Johnson said: 

“‘They are the worst fucking shittiest parents in the world. 

Your mom is a whore. She puts her pussy all over town. Does 

your dad put his dick in your mouth? Do you like your dad’s 

dick?’” During this time, Jared was trying to tell Johnson to 

“watch her language.” Aubrey described that her daughter was 

upset and crying.

Aubrey was able to get her children back into the van. 

Aubrey testified that as she was getting the children into the 

van, Jared placed himself between Johnson and the children. 

Johnson spit at Jared and walked out of the parking lot to 

the other side of the concrete wall. Aubrey then watched 

from inside the van as Johnson walked along the sidewalk 

and disappeared from sight as she reached the front of the 

Office Bar.

Aubrey thought that Johnson had left and that the confrontation was over. But Aubrey and her daughter watched through 

the van window as Johnson picked up a chair sitting outside 

the bar and walked toward Jared. Jared, who was about 3 
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Cite as 314 Neb. 20

feet from Johnson, started walking backward. Johnson then 

threw the chair directly at Jared’s head, from a distance of 

about 5 feet. Jared was able to deflect the chair with his hand. 

The chair fell and hit his leg. After that, Johnson departed.

Aubrey described that her daughter was hysterical, crying 

and screaming. Each night for almost a year after the incident, 

her daughter woke up crying and screaming, “‘Help me, save 

me, she’s coming.’” Aubrey described in some detail how her 

daughter, who was 7 years old at the time of trial, continues to 

struggle with anxiety and a fear of unknown situations.

(c) Jared

Jared testified that Johnson was approximately 20 to 30 

feet from him and his family when he first heard her yelling 

and approaching from the alley. At some point, Johnson left 

the alley and walked into the parking lot, getting closer to his 

daughter at the back of their van. Jared described first hearing 

Johnson say in a sarcastic tone, “‘Isn’t this a beautiful family.’” He then described, similarly to Aubrey’s testimony, what 

Johnson said to his daughter.

Jared testified, “[A]s soon as I heard the first vulgar word 

out of her mouth, I started shouting, ‘Watch your language,’ to 

try to drown it out to limit what my daughter did hear.” Jared 

described that he just kept saying, “‘Watch your language’” 

until Johnson finished, but that he did not do anything else.

Johnson kept walking. After Aubrey and the children were 

safely in the van, Jared stepped away from the van “to create 

distance of me to the van to just keep her away from my family.” This meant he was walking toward Johnson. As Jared got 

closer to Johnson, she spat on him.

During this time, there was some interaction wherein Johnson 

told Jared, “‘Didn’t I try to protect you when you were little,’” 

and Jared said no. According to Jared, the only time he yelled 

was when he had been “trying to drown out the profanities 

she was saying to my daughter.” When he was walking toward 

Johnson, he was “responding to her only.”
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Cite as 314 Neb. 20

Johnson continued to walk away and out of the parking lot. 

She then walked along the sidewalk that ran along the other 

side of the concrete wall and toward the Office Bar. Jared, who 

was still engaged with Johnson from the other side of the wall, 

told Johnson “to go be a good mother because no good mother 

would say those things.” According to Jared, Johnson turned 

around, grabbed a chair, and threw it at him.

Jared explained that when Johnson threw the chair, he 

stepped back off a curb he was apparently standing on at the 

time, so that he would not fall. When he was hit by the chair, 

Jared was approximately 5 feet from Johnson. Jared never went 

to the other side of the concrete wall. Jared described his injuries from being hit by the chair and the negative impact of the 

incident on his daughter’s mental health.

(d) Johnson

Johnson testified in her own defense, describing that it 

was coincidental that she ran across Jared and his family on 

September 17, 2019. She testified she was walking through the 

alley near the Office Bar, when she saw two figures outside 

of a van. She then recognized the daughter, who jumped out 

of the van to wave at her “really excitedly.” She explained the 

daughter had been inside the van in the back seat with the door 

open. Johnson often saw Jared and Aubrey’s daughter, because 

she went to the same daycare as Johnson’s son. According to 

Johnson, “[s]he’d always wave at me at daycare.”

Johnson said she spoke to the daughter on the day in question only because “she was happy to see me and waving at 

me.” Johnson did not stop but continued walking as she asked 

the daughter whether this was her family. When the daughter said it was, Johnson said she had a “picture perfect family.” Johnson denied making any inappropriate remarks to the 

daughter. Johnson testified that when she said that, Jared told 

her, “‘You do not talk to my daughter. You do not talk to my 

wife. You do not talk to my family.’”
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STATE V. JOHNSON

Cite as 314 Neb. 20

Johnson testified that Aubrey took the children into the van, 

grabbing the daughter’s arm and saying, “‘I told you not to talk 

to that crazy lady.’” Johnson testified she never saw the daughter cry, but imagined that was the cause if she did. Johnson 

testified she continued to walk past the van and move away 

from Jared and his family, telling Jared to stop following her. 

Her path was not blocked by Jared.

Johnson testified that she tried to cross the street to get further away, but that traffic did not allow her to. Jared kept following her, and she again asked him to stop. Johnson walked 

along the sidewalk separated from the parking lot by the concrete wall, in the direction of the Office Bar, while Jared stayed 

on the parking lot side.

Johnson testified that when Jared told her to be a good 

mother, she responded by telling Jared he “could be a good parent by getting his dick out of his daughter’s mouth.” Johnson 

testified that Jared then started “pounding his hands and fists 

like in a fist motion on the concrete and following me down” 

the street from the other side of the wall, telling her that she 

was going to regret saying that. Jared also told her that she was 

“‘batshit crazy,’” her mom was a “‘nutbag,’” and she was a 

“‘whore that spreads her legs all over town,’” “‘[j]ust like your 

kids’ dad said . . . .’”

Johnson admitted that Jared never left the area between 

the van and the wall. Nevertheless, she was very scared and 

wanted to distract Jared. She was afraid that Jared, who was 

6 feet 4 inches tall, was going to jump over the wall and 

“punch” her. Johnson testified that she grabbed a chair from in 

front of the bar, went back toward Jared a couple of steps, and 

threw it “on the barricade,” in the direction of Jared. Johnson 

testified she was not trying to hit Jared. Johnson then “took 

off running.”

(e) Rebuttal

The State called Aubrey as a rebuttal witness. Aubrey 

denied that her daughter approached Johnson or that she had 
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Cite as 314 Neb. 20

jerked her daughter’s arm in order to get her back into the van. 

Aubrey testified that although she could see Jared at the corner 

of the parking lot on the other side of the concrete wall from 

Johnson, she never saw Jared pound his hands on the wall or 

otherwise threaten Johnson.

Jared was also called to testify on rebuttal. He stated that 

he did not tell Johnson she would “‘regret this’” or otherwise threaten force against Johnson, chase her, pound his fists 

against the concrete wall, or try to jump the concrete wall. He 

also denied that his daughter approached Johnson or that his 

daughter had ever even met Johnson, stating, “My daughter 

does not know who she is and I’ve made it my goal in life for 

that to be the case.” Jared said his daughter went to school in 

a different part of the same building where Johnson’s son went 

to preschool.

(f) Video Surveillance

Surveillance video from a nearby business is somewhat difficult to decipher but generally confirms the location of the 

parties and the van and that there was some traffic on the street 

when Johnson exited the parking lot. After Johnson exited 

the parking lot and started walking along the sidewalk, Jared 

stayed in the parking lot between the van and the concrete 

wall. Jared and Johnson appear engaged with each other from 

across the wall, both moving back and forth, before Johnson 

went decidedly in the direction of the Office Bar, apparently 

retrieved the chair, and threw it at Jared.

5. Closing Arguments and 

Jury Instructions

In closing arguments, defense counsel argued that Johnson 

did not intentionally or knowingly cause Jared bodily injury. 

Instead, she threw the chair at the barricade as a way to 

distract Jared so that she could get away. Whether Johnson 

acted recklessly was a different question. With respect to the 
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charge of child abuse, defense counsel argued Johnson never 

said the things that Jared and Aubrey accused her at trial of 

saying. Defense counsel continued, “I’m not going to argue 

about the fact that [the daughter] went to counseling.” But 

defense counsel pointed out Johnson did not know the daughter 

was still watching from the van when she threw the chair, so 

she did not intentionally or knowingly place the daughter in 

that situation.

With respect to count I, the court instructed on the lesserincluded offense of assault in the third degree. With respect to 

count II, it instructed on the lesser-included offense of negligent child abuse.

The court refused defense counsel’s requested self-defense 

instruction. It reasoned that there was no evidence at trial 

supporting “a verbal or physical threat of harm or any actual 

harm that would justify the use of immediate physical force by 

[Johnson] toward Jared.” The court said that even assuming 

Johnson’s testimony to be true that Jared told her she would 

regret saying what she did and pounded his fists on top of the 

concrete wall, Johnson left the area where Jared was to retrieve 

the chair. She then returned to Jared to throw it in his direction. 

The court said that, thus, even under Johnson’s own testimony, 

she was the “first aggressor.”

The jury found Johnson guilty of assault in the second 

degree. It found Johnson not guilty of intentional child abuse, 

but guilty of negligent child abuse.

6. Sentencing

The court sentenced Johnson to concurrent sentences of 6 

months in jail on the conviction of second degree assault and 

10 months in jail on the conviction of negligent child abuse.

At the sentencing hearing, the court acknowledged that 

there was nothing in Johnson’s criminal history involving 

assault or abuse and that she did not “seem to be the type of 

person to have done this by looking at your prior criminal 
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history.” The court also noted there did not seem to be a lot 

of substance abuse problems in Johnson’s life other than with 

marijuana. The presentence investigation report (PSI) showed 

Johnson had been employed with her current employer for 

11 years.

The PSI showed Johnson had a criminal history of traffic 

violations, including willful reckless driving, disturbing the 

peace, obstructing a police officer, resisting arrest, and shoplifting. She scored in the low risk level for criminal history; 

the medium risk level for education/employment, companions, and alcohol/drug problems; a high risk level for leisure/

recreation; and very high in procriminal attitude and antisocial pattern.

The court stated at the hearing that it had to “adhere to the 

jury’s findings and their conclusions. And they came to the 

conclusion that you did say those things to the girl, that you 

abused her in that way.” It went on to state, “[H]onestly, I 

tended to agree with the jury’s findings in that regard.” What 

the court found the “most disturbing . . . was the things that 

were said in front of the child.”

The court also noted that while Johnson claimed she was 

scared of Jared and trying to get away, she was past the edge of 

the wall where it met the building, and thereby “away,” when 

she decided to pick up a chair and go back to where she could 

throw it toward Jared. The court explained:

I don’t agree that you did that sort of because you were so 

fearful and wanted to get away and didn’t know what else 

to do and sort of did that as a reaction to that. I think you 

were away and then saw the chair and thought “I’m going 

back.” That’s how the facts were laid out. So, I don’t 

really feel like there is a real belief on your part that you 

really did anything wrong here.

In general, the court said that “the impression that I got” 

from the evidence at trial and the PSI was that Johnson 

did not feel she had done anything wrong. The court did 
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not think Johnson was likely to respond positively to probationary treatment, because she did not seem very amenable to 

the structure of such programming in that she did not think she 

had done anything wrong. Finally, the court said that a sentence less than incarceration would depreciate the seriousness 

of the crimes and promote disrespect for the law.

In its sentencing order, the court reiterated that there were 

substantial and compelling circumstances such that Johnson 

was not a suitable candidate for probation and that a sentence 

lesser than incarceration would depreciate the seriousness of 

the offense and promote disrespect for the law. The court also 

found that there was a substantial risk Johnson would engage 

in additional criminal conduct during any period of probation and that she was in need of correctional treatment which 

could be provided most effectively by commitment to a correctional facility.

III. ASSIGNMENTS OF ERROR

Johnson assigns that the district court erred by (1) failing 

to instruct the jury on self-defense; (2) failing to sequester a 

State’s witness at Johnson’s request, in violation of Neb. Rev. 

Stat. § 27-615 (Reissue 2016); and (3) imposing excessive 

sentences. Johnson assigns that trial counsel was ineffective 

by failing to (1) file a motion to quash the amended complaint 

and (2) ensure that an impartial jury was impaneled for trial. 

We disregard an assignment of error which Johnson abandoned 

in her reply brief.

IV. STANDARD OF REVIEW

[1] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the 

court below. 1

1 State v. Loyd, 275 Neb. 205, 745 N.W.2d 338 (2008).
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[2] Whether a claim of ineffective assistance of counsel may 

be determined on direct appeal is a question of law. 2

[3] It is for the trial court to determine the extent to which a 

sequestration order will be applied in a given case. 3

[4] To establish reversible error from a court’s refusal to give 

a requested instruction, an appellant has the burden to show 

that (1) the tendered instruction is a correct statement of the 

law, (2) the tendered instruction is warranted by the evidence, 

and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction. 4

[5] A sentence imposed within the statutory limits will not 

be disturbed on appeal in the absence of an abuse of discretion 

by the trial court. 5 A judicial abuse of discretion exists only 

when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and 

denying a just result in matters submitted for disposition. 6

V. ANALYSIS

1. Lack of Preliminary Hearing 

on Count II

Johnson asserts that trial counsel was ineffective by failing 

to move to quash count II of the information on the grounds 

that no preliminary hearing had been held or waived. In spite 

of the State’s assertion otherwise at oral arguments, the record 

on appeal does not show that a preliminary hearing was held. 

Johnson relies on a Nebraska case stating that a district court 

lacks jurisdiction to try an individual on a felony charge unless 

the accused has been accorded the privilege of a preliminary 

hearing or waives the same.

2 State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023).

3 State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022).

4 State v. Case, 304 Neb. 829, 937 N.W.2d 216 (2020).

5 State v. Greer, 312 Neb. 351, 979 N.W.2d 101 (2022).

6 Id.
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The foundation of Johnson’s argument lies in an 1889 decision that we overruled in 1895. In White v. State,

 7 we held that 

a district court had no jurisdiction to try an accused person 

until a preliminary examination had been held according to 

law. But in Coffield v. State,

 8 we overruled this holding from 

White. In doing so, we said that the “failure to give a prisoner 

a preliminary examination does not oust the district court of 

jurisdiction” but is a “mere defect in the proceedings,” which, 

pursuant to Neb. Rev. Stat. § 29-1812 (Reissue 2016), may 

be excepted to by a motion to quash, a plea in abatement, a 

demurrer to the indictment, or a plea in bar, and the accused 

will be deemed to have waived the defect if the objection is 

not timely made. 9 Thus, over a century ago, we rejected the 

jurisdictional argument. In three later cases (which include the 

case Johnson cites), 10 we allowed this language of jurisdiction 

to seep back into a discussion of preliminary hearings. We 

now expressly disapprove those cases to the extent that they 

do so.

[6-8] The proper method of objecting to trial in the district 

court for the insufficiency of a preliminary hearing, or the 

failure to provide one at all, is by a timely motion to quash 

or a plea in abatement. 11 Any error by the trial court in overruling a defendant’s plea in abatement alleging there was 

insufficient evidence presented at a preliminary hearing to 

bind the case over for trial is cured by a subsequent finding at 

trial of guilt beyond a reasonable doubt which is supported 

7 White v. State, 28 Neb. 341, 44 N.W. 443 (1889). See Latimer v. State, 55 

Neb. 609, 76 N.W. 207 (1898).

8 Coffield v. State, 44 Neb. 417, 62 N.W. 875 (1895).

9 Id. at 421, 62 N.W. at 876.

10 See, State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998); State v. Kelley, 

211 Neb. 770, 320 N.W.2d 455 (1982), disapproved on other grounds, 

State v. Wright, 261 Neb. 277, 622 N.W.2d 676 (2001); State v. Forbes, 

203 Neb. 349, 278 N.W.2d 615 (1979).

11 State v. Hill, supra note 10. See State v. Howard, 184 Neb. 274, 167 

N.W.2d 80 (1969).
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by sufficient evidence. 12 Likewise, a failure to hold a preliminary hearing is cured by a subsequent conviction supported by 

sufficient evidence that the defendant is guilty beyond a reasonable doubt. Conducting a preliminary hearing after a trial 

would not only serve no purpose, but it “would compound the 

degradation and expense that the preliminary hearing serves to 

protect against.” 13

[9] It necessarily follows that if the trier of fact, upon sufficient evidence, has found the defendant guilty of the charged 

crime beyond a reasonable doubt, the defendant cannot show 

prejudice resulting from trial counsel’s failure to object to 

the lack of evidence supporting probable cause at a preliminary hearing, or to object to the failure to hold a preliminary 

hearing at all. Accordingly, in State v. Nesbitt,

 14 we found 

that the court properly denied, without an evidentiary hearing, the defendant’s claim that trial counsel was ineffective 

for not timely filing a plea in abatement challenging the probable cause to believe he had committed the charged crime, 

because the jury’s finding of guilt beyond a reasonable doubt 

“resolved any questions about whether probable cause existed 

to bind [the defendant] over for trial.” Similarly, in State v. 

Hubbard, 15 we determined on direct appeal that because the 

defendant was ultimately found to be guilty beyond a reasonable doubt, he would not, as a matter of law, be able to establish prejudice from trial counsel’s allegedly deficient conduct 

of failing to move to quash or file a plea in abatement. We 

explained that even if the court had failed to consider whether 

there was probable cause to bind the defendant over for trial, 

12 E.g., State v. Green, 287 Neb. 212, 842 N.W.2d 74 (2014); State v. Nesbitt, 

264 Neb. 612, 650 N.W.2d 766 (2002); State v. Boppre, 234 Neb. 922, 453 

N.W.2d 406 (1990); State v. Baker, 224 Neb. 130, 395 N.W.2d 766 (1986); 

State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975). See, also, State 

v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (2017).

13 State v. Aleh, 357 P.3d 12, 16 (Utah App. 2015).

14 State v. Nesbitt, supra note 12, 264 Neb. at 620, 650 N.W.2d at 777.

15 State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004).
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“any defect in the waiver of a preliminary hearing to determine 

probable cause is cured by a jury’s later verdict finding the 

defendant guilty beyond a reasonable doubt.” 16 The defendant 

“was not prejudiced because he was found guilty.” 17

[10] The record is sufficient to review the merits of the 

ineffective performance claims if it establishes either that 

trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice as a matter of law, 

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

of any plausible trial strategy. 18 The jury’s verdict cured any 

defect of failing to hold a preliminary hearing on count II and 

established, as a matter of law, that Johnson will not be able 

to establish prejudice from trial counsel’s allegedly deficient 

conduct in failing to move to quash the information on count II 

for the lack of a preliminary hearing. We find no merit to this 

claim of ineffective assistance of trial counsel.

2. Trial Counsel’s Failure to 

Ensure Impartial Jury

Johnson also claims ineffective assistance of trial counsel 

in relation to the voir dire. Two of the impaneled jurors stated 

they had a personal relationship with one of the State’s witnesses, and she argues trial counsel was ineffective by failing 

to ask followup questions about those relationships and how 

they may impact the jurors’ ability to be fair and impartial. 

She argues that “[i]t is fair to reason” that the jurors “would 

be inclined to give more weight and trust to the testimony of 

. . . Rodriguez due to their relationship.” 19 Thus, she argues 

she was prejudiced. Johnson also makes a more general 

claim of ineffective assistance, because trial counsel asked 

the full jury panel only six questions and trial counsel’s 

16 Id. at 326, 673 N.W.2d at 577.

17 Id.

18 See State v. Miranda, supra note 2.

19 Brief for appellant at 27.
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examination of the jury panel took up only two pages of the 

bill of exceptions.

We pointed out recently in a claim of ineffective assistance 

on direct appeal, based on defense counsel’s relatively brief 

voir dire compared to the State’s examination, that “brevity alone is not enough to show that his trial counsel’s performance was deficient.” 20 We concluded that such a claim 

lacked sufficient specificity. 21 We likewise find here that 

Johnson failed to sufficiently raise an ineffective assistance 

claim based on a general failure to ask more questions during 

voir dire.

Johnson has sufficiently raised a claim of ineffective assistance of trial counsel regarding the two jurors who said they 

knew Rodriguez, but she cannot show prejudice from the 

failure to ask those jurors more followup questions. Even if 

more questioning would have confirmed a significant bias, and 

that bias caused those jurors to unduly trust in the veracity of 

Rodriguez’ testimony, the record shows that Rodriguez did not 

testify as to any matter in dispute at trial. Rodriguez was not a 

witness to the incident. He merely testified as to the daughter’s 

demeanor after the incident, Jared’s injuries, and the layout of 

the physical scene. The defense did not dispute any of these 

matters. There is no merit to Johnson’s claim that trial counsel 

was ineffective in failing to ask the two jurors followup questions about their relationships to Rodriguez and how those may 

impact their ability to be fair and impartial.

3. Sequestration

We turn to Johnson’s assertion that the trial court erred 

in refusing to sequester Aubrey, who testified after hearing 

Rodriguez’ testimony and again in rebuttal. Before the State 

called its first witness, the court granted defense counsel’s 

motion to sequester the witnesses, but granted the State’s 

20 State v. Miranda, supra note 2, 313 Neb. at 374, 984 N.W.2d at 275.

21 See id.
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request to designate Aubrey as an exception to the sequestration order.

[11] Sequestration is based on the belief that not hearing 

other witnesses’ testimony tends to better elicit the truth and 

promote the ends of justice. 22 Section 27-615 states:

At the request of a party the judge shall order witnesses 

excluded so that they cannot hear the testimony of other 

witnesses, and he may make the order on his own motion. 

This rule does not authorize exclusion of (1) a party who 

is a natural person, or (2) an officer or employee of a 

party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence 

is shown by a party to be essential to the presentation of 

his cause.

[12-14] While it is unclear how Aubrey falls under 

§ 27-615(1) through (3), Johnson did not object at any point 

before or during the trial to the court’s decision to exempt 

Aubrey from sequestration. A litigant’s failure to make a 

timely objection waives the right to assert prejudicial error on 

appeal. 23 An appellate court will not consider an argument or 

theory that is raised for the first time on appeal. 24 Thus, when 

an issue is raised for the first time in an appellate court, it will 

be disregarded inasmuch as a lower court cannot commit error 

in resolving an issue never presented and submitted to it for 

disposition. 25 We conclude that Johnson failed to preserve this 

issue for appellate review.

4. Self-Defense Instruction

[15,16] Johnson argues the trial court erred in failing to 

instruct the jury on self-defense. To establish reversible error 

22 State v. Trail, supra note 3.

23 Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733, 956 N.W.2d 

692 (2021).

24 Id.

25 Id.
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from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction 

is a correct statement of the law, (2) the tendered instruction 

is warranted by the evidence, and (3) the appellant was prejudiced by the court’s refusal to give the tendered instruction. 26 It 

is not enough to merely show “‘any evidence’” of self-defense 

to support an instruction thereon. 27 Instead, the defendant must 

show “‘any evidence in support of a legally cognizable theory 

of self-defense.’” 28 Only where the jury could reasonably find 

that the defendant’s use of force was justified should the trial 

court instruct the jury on self-defense. 29 If the trial evidence 

does not support a claim of self-defense, the jury should not be 

instructed on it. 30

Neb. Rev. Stat. § 28-1409(1) (Reissue 2016) provides in 

relevant part that “the use of force upon or toward another 

person is justifiable when the actor believes that such force is 

immediately necessary for the purpose of protecting himself 

against the use of unlawful force by such other person on the 

present occasion.” Section 28-1409(5) provides that when the 

force is not deadly or used to resist another’s occupation of 

property under a claim of right, “a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, 

without retreating, surrendering possession, doing any other 

act which he has no legal duty to do, or abstaining from any 

lawful action.”

[17,18] We have interpreted § 28-1409 to mean that to 

successfully assert the claim of self-defense, a defendant 

must have a reasonable and good faith belief in the necessity of using force and the force used in defense must be 

26 State v. Case, supra note 4.

27 Id. at 843, 937 N.W.2d at 226.

28 Id.

29 State v. Case, supra note 4.

30 State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
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immediately necessary and justified under the circumstances. 31

To instruct on self-defense, it is not enough that the defendant subjectively believed in the need to use force for selfprotection; the defendant must produce evidence that this subjective belief was also objectively reasonable. 32

Johnson admitted Jared never left the area between the van 

and the concrete wall. Based on Jared’s allegedly pounding 

his fists on top of the wall while telling her she was going to 

regret saying what she did, Johnson testified she was afraid 

Jared was going to jump over the wall and “punch” her. Even if 

it was reasonable to infer that Jared was physically capable of 

jumping over the wall and that Johnson subjectively feared he 

would do so and then hit her, there was no evidence that Jared 

had made any move to jump over the wall or had threatened 

to jump over the wall when Johnson decided to throw a chair 

at him. As such, even resolving all reasonable inferences in 

Johnson’s favor, the evidence does not support a “reasonable 

and good faith belief” that force was “immediately necessary” 

for Johnson to protect herself against the use of unlawful force 

by Jared.

Relatedly, the evidence does not support the conclusion that Johnson’s act of throwing the chair at Jared was 

justified under the circumstances. We have explained that 

“[i]f a defendant has unjustifiably placed himself or herself 

in harm’s way, a court may properly find that such facts do 

not support a lawful claim of self-defense.” 33 Thus, in State v. 

Marshall,

 34 an instruction on self-defense was properly denied 

when the defendant had voluntarily put himself in a position of danger by going outside of his home to confront two 

men and there was no evidence that anything prevented him 

31 State v. Case, supra note 4.

32 See State v. Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978).

33 State v. Urbano, 256 Neb. 194, 201, 589 N.W.2d 144, 151 (1999). Accord 

State v. Case, supra note 4.

34 State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998).
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from remaining safely in his home. Similarly, in State v. 

Case,

 35 the evidence did not support a self-defense instruction 

when the defendant left the safety of his jail cell and walked 

directly up to the victim, who allegedly made the first move 

toward the defendant thereafter. The use of force was not justified under the circumstances.

Johnson’s act of taking a couple of steps beyond the parking lot before returning toward Jared is perhaps distinct from 

these scenarios, but her act of throwing the chair at Jared was 

equally unjustified. As discussed, she was never in immediate 

harm’s way. When she went in the direction of the chair and 

beyond the parking lot, Jared did not jump over the wall to 

pursue her. Instead, Johnson walked back toward Jared, where 

Jared continued to stand on the other side of the wall, and 

hurled a chair at him.

We agree with the trial court that even if the evidence is 

viewed consistent with Johnson’s testimony, Jared’s following along the other side of the wall while pounding his fists 

and saying Johnson would regret what she said did not legally 

justify the use of immediate physical force by Johnson toward 

Jared. The evidence at trial did not allow a reasonable inference 

that Johnson acted in self-defense. The court did not abuse its 

discretion in refusing to give a self-defense instruction.

5. Excessive Sentences

Lastly, we address Johnson’s assignment of error that the 

court imposed excessive sentences. A sentence imposed within 

the statutory limits will not be disturbed on appeal in the 

absence of an abuse of discretion by the trial court. 36 A judicial 

abuse of discretion exists only when the reasons or rulings of a 

trial judge are clearly untenable, unfairly depriving a litigant of 

a substantial right and denying a just result in matters submitted for disposition. 37

35 State v. Case, supra note 4.

36 State v. Greer, supra note 5.

37 Id.
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Johnson’s concurrent sentences of 6 months in jail on the 

conviction of second degree assault and 10 months in jail 

on the conviction of negligent child abuse were well within 

the statutory limits. Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 

2022) authorizes a maximum sentence of 20 years’ imprisonment with no minimum sentence for Class IIA felonies. Neb. 

Rev. Stat. § 28-106(1) (Reissue 2016) authorizes a maximum 

sentence of not more than 1 year’s imprisonment with no minimum sentence for Class I misdemeanors.

Johnson argues that the court abused its discretion by 

imposing imprisonment rather than probation. Neb. Rev. Stat. 

§ 29-2260(2) (Reissue 2016) describes that for a sentence for 

an offender convicted of either a misdemeanor or a felony for 

which mandatory or mandatory minimum imprisonment is 

not specifically required, the court may withhold sentence of 

imprisonment unless, having regard to the nature and circumstances of the crime and the history, character, and condition of 

the offender, the court finds that imprisonment of the offender 

is necessary for protection of the public because (a) the risk is 

substantial that during the period of probation the offender will 

engage in additional criminal conduct, (b) the offender is in 

need of correctional treatment that can be provided most effectively by commitment to a correctional facility, or (c) a lesser 

sentence will depreciate the seriousness of the offender’s crime 

or promote disrespect for law.

Section 29-2260(3) sets forth several grounds that while 

not controlling the discretion of the court, shall be accorded 

great weight in favor of withholding a sentence of imprisonment: (a) the crime neither caused nor threatened serious 

harm; (b) the offender did not contemplate that his or her 

crime would cause or threaten serious harm; (c) the offender 

acted under strong provocation; (d) substantial grounds were 

present tending to excuse or justify the crime, though failing 

to establish a defense; (e) the victim of the crime induced or 

facilitated commission of the crime; (f) the offender has compensated or will compensate the victim of his or her crime 
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for the damage or injury the victim sustained; (g) the offender 

has no history of prior delinquency or criminal activity and 

has led a law-abiding life for a substantial period of time 

before the commission of the crime; (h) the crime was the 

result of circumstances unlikely to recur; (i) the character and 

attitudes of the offender indicate that he or she is unlikely to 

commit another crime; (j) the offender is likely to respond 

affirmatively to probationary treatment; and (k) imprisonment of the offender would entail excessive hardship to his or 

her dependents.

[19,20] The sentencing court is not limited to any mathematically applied set of factors. 38 The appropriateness of the 

sentence is necessarily a subjective judgment that includes the 

sentencing judge’s observations of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding the 

defendant’s life. 39

Johnson focuses on her allegation that in reaching the decision to impose imprisonment rather than probation, the trial 

court improperly engaged in speculation as to the factual 

basis of the jury’s verdict and her motives. She first argues 

that the court improperly concluded the jury found Johnson 

made disparaging comments to Jared and Aubrey’s daughter, 

when the jury could have instead found her guilty based on 

the daughter’s witnessing Johnson throw the chair at Jared. 

Second, Johnson argues the trial court improperly engaged in 

speculation and factual finding by determining that Johnson 

did not throw the chair at Jared because she was afraid; 

rather, she was “away and then saw the chair and thought ‘I’m 

going back.’”

[21,22] So long as it does not concern a fact exposing the 

defendant to a greater punishment than that authorized by 

the jury’s guilty verdict, it is not improper for a sentencing 

38 Id.

39 Id.
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judge to make factual findings for purposes of sentencing relating to the circumstances of the crime and which are supported 

by the evidence at trial, the PSI, or evidence submitted at the 

sentencing hearing. 40 In a sentencing hearing, the court generally has broad discretion concerning the scope and type of 

information to be considered. 41

We disagree with Johnson that the judge’s sentence of 

imprisonment was improperly based in unlawful speculation, 

because the judge said he must adhere to the jury’s findings 

and the jury came to the conclusion that Johnson had made 

abusive comments to Jared and Aubrey’s daughter. Rather, it 

appears from the context that the judge independently reached 

the conclusion, based on the evidence at trial and the PSI, 

that Johnson made abusive statements to the child. This was 

a proper finding to be considered in sentencing. Likewise, the 

judge did not abuse his discretion in finding that Johnson was 

“away” and returned to assault Jared and did not simply act 

out of fear. Such a conclusion is adequately supported by the 

record and was a proper consideration in sentencing.

The sentencing judge also made several findings not specifically challenged in this appeal. It found that Johnson did not 

feel she had done anything wrong. The judge found Johnson 

was unlikely to respond positively to probationary treatment, 

because she did not seem very amenable to the structure of 

such programming and she did not think she had done anything wrong. The judge found that there was a substantial 

risk Johnson would engage in additional criminal conduct 

during any period of probation and that she was in need of 

correctional treatment, which could be provided most effectively by commitment to a correctional facility. Finally, the 

40 See A.L.I., Model Penal Code: Sentencing § 7.07A (Tentative Draft No. 1 

2007).

41 See State v. Jackson, 225 Neb. 843, 408 N.W.2d 720 (1987), overruled on 

other grounds, State v. Garza, 236 Neb. 202, 459 N.W.2d 739 (1990).
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judge found that a sentence less than incarceration would 

depreciate the seriousness of the crimes and promote disrespect 

for the law.

The court did not abuse its discretion in determining Johnson 

was not a suitable candidate for probation.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed.