State v. Dap
Citation315 Neb. 466
Date Filed2023-11-17
DocketS-22-810
Cited28 times
StatusPublished
Full Opinion (html_with_citations)
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/17/2023 09:07 AM CST
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315 Nebraska Reports
STATE V. DAP
Cite as 315 Neb. 466
State of Nebraska, appellee, v.
Dap Tuak Dap, appellant.
___ N.W.2d ___
Filed November 17, 2023. No. S-22-810.
1. Trial: Convictions: Evidence: Appeal and Error. An appellate court
will sustain a conviction in a bench trial of a criminal case if the prop-
erly admitted evidence, viewed and construed most favorably to the
State, is sufficient to support that conviction. In making this determina-
tion, an appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, evaluate explanations, or reweigh the
evidence presented, because these are within a fact finderâs province for
disposition. Instead, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.
2. Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
nal case, a motion for new trial is addressed to the discretion of the trial
court, and unless an abuse of discretion is shown, the trial courtâs deter-
mination will not be disturbed.
3. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of counsel may be determined on direct appeal is a
question of law.
4. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counselâs alleged
deficient performance.
5. Evidence: Circumstantial Evidence: Proof: Words and Phrases.
There are two kinds of evidence, direct and circumstantial. Direct
evidence directly proves the fact in dispute without inference or
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presumption. Circumstantial evidence is evidence of one or more
facts from which the existence of the fact in dispute may logically
be inferred.
6. Circumstantial Evidence: Proof. Circumstantial evidence is not inher-
ently less probative than direct evidence, and a fact proved by circum-
stantial evidence is nonetheless a proven fact.
7. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not needed to adjudicate the controversy before it.
8. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendantâs trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counselâs ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
9. ____: ____: ____: ____. An ineffective assistance of counsel claim is
raised on direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make a determina-
tion of whether the claim can be decided upon the trial record and (2)
a district court later reviewing a petition for postconviction relief to
recognize whether the claim was brought before the appellate court.
10. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of
ineffective assistance of counsel is raised in a direct appeal, the appel-
lant is not required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims constitutes defi-
cient performance by trial counsel.
11. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an
appellate court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims. The record
is sufficient if it establishes either that trial counselâs performance was
not deficient, that the appellant will not be able to establish prejudice as
a matter of law, or that trial counselâs actions could not be justified as a
part of any plausible trial strategy.
12. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052,80 L. Ed. 2d 674
(1984), the defendant must show that
counselâs performance was deficient and that this deficient performance
actually prejudiced the defendantâs defense.
13. ____: ____. To show that counselâs performance was deficient, the
defendant must show counselâs performance did not equal that of a law-
yer with ordinary training and skill in criminal law.
14. ____: ____. To show prejudice from counselâs deficient performance,
the defendant must demonstrate a reasonable probability that but for
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counselâs deficient performance, the result of the proceeding would have
been different.
15. Trial: Evidence: Presumptions: Appeal and Error. In a case tried to
the court without a jury, there is a presumption that the trial court, in
reaching its decision, considered only evidence that is competent and
relevant, and an appellate court will not overturn such a decision where
there is sufficient material, competent, and relevant evidence to sustain
the judgment.
Appeal from the District Court for Hall County: Patrick M.
Lee, Judge. Affirmed.
J.D. Sabott, of Wolf, McDermott, Depue, Sabott, Butz &
Porto, L.L.C., for appellant.
Michael T. Hilgers, Attorney General, Erin E. Tangeman,
and Matthew Lewis for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik,
and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In this direct appeal, Dap Tuak Dap challenges the suffi-
ciency of the evidence to sustain his convictions for possession
of a firearm by a prohibited person and unlawful discharge of
a firearm, the overruling of his motion for a new trial, and the
effectiveness of trial counsel. His arguments largely attack the
Stateâs reliance on circumstantial evidence. Because we find
no reversible error or abuse of discretion, we affirm.
II. BACKGROUND
Shortly after midnight on January 2, 2022, Tara Fugate heard
loud noises and screaming outside her apartment. Fugateâs
apartment is near the stairway on the second floor of a two-
story apartment building. The outdoor stairway, located at one
end of the building, provides access to the second floor. The
stairs go up halfway to a landing, and then the other half of the
stairs leads to the second level.
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As Fugate moved to close her window drapes, she heard a
gunshot. Fugate looked outside and saw an individual, whom
she later identified as Dap, âscreaming at the other ones.â
According to Fugate, Dap was standing on the landing and the
others were in an apartment âcatty-corner from [Fugateâs front]
door.â Fugate saw âan objectâ in Dapâs hands, but she did
not know what it was. She testified: âCould have been a cell
phone. Could have been a can of pop.â It was dark outside, and
although Fugate did not see the objectâs color, she testified that
it âflickered in the darkness.â Fugate heard Dap say, â[exple-
tive] youâ and either ânext time I wonât miss youâ or ânext
time I will hit you.â
Fugate testified that Dap âran up onto the landing and then
up the stepsâ and entered the apartment where the person at
whom he was screaming was located. After Dap ran into the
apartment, Fugate heard another sound similar to a gunshot;
however, it was âmore muffledâ than the first gunshot sound.
Fugate explained that it was âobvious[]â the first shot was
outside and that the second shot was âin a closed encounter.â
Police officers arrived at the apartment building, and Dap
refused to cooperate with their orders. Officer Justin Roehrich
testified that as the officers tried to get Dap to descend the
stairs, Roehrich ânoticed a glistening on the concrete right next
to the handrail of the stairway.â Roehrich discovered a shell
casing for a .22-caliber bullet. He explained that a shell casing
will generally land within 5 feet of where a gun is fired.
After Roehrich spoke with Fugate, he obtained a search
warrant. Roehrich and other officers then searched the apart-
ment that Fugate saw Dap enter. In the living room of
that apartment, they found a wallet containing identifica-
tion belonging to Dap and a .22-caliber shell casing located
nearby. Roehrich observed a hole in the living room ceiling
that was consistent with a .22-caliber bullet. Another officer
climbed into the attic to look for the slug. That officer located
the point where the bullet entered the attic and followed its
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trajectory to a rafter that sustained damage. He did not locate
the metal portion of that round. Likewise, no gun was found.
After a bench trial, the court convicted Dap of possession
of a deadly weapon (firearm) by a prohibited person, unlawful
discharge of a firearm, use of a deadly weapon to commit a
felony, and obstructing a peace officer.
Dap moved for a new trial. He alleged that the verdict for
possession of a firearm by a prohibited person was not sus-
tained by sufficient evidence and was contrary to law, that an
error of law occurred at trial, and that there was an irregularity
in an order of the court. The court overruled the motion.
Following sentencing, Dap filed a timely appeal. We moved
the appeal to our docket under our statutory authority to regu-
late the caseloads of the appellate courts of this state. 1
III. ASSIGNMENTS OF ERROR
Dap assigns six errors, which we have reordered and consol-
idated into four categories. First, Dap alleges that the evidence
was insufficient to support the convictions under Neb. Rev.
Stat. §§ 28-1206 (Cum. Supp. 2022) and 28-1212.02 (Reissue
2016). Second, he contends that the court abused its discretion
in denying his motion for a new trial. Third, Dap alleges that
he received ineffective assistance of trial counsel due to (1)
counselâs failure to investigate the Stateâs allegations by fail-
ing to (a) communicate and adequately review discovery with
Dap, (b) conduct depositions, and (c) investigate in an attempt
to develop favorable evidence; and (2) counselâs advice that
Dap should not testify in his own behalf. Fourth, Dap contends
that the cumulative effect of all the errors deprived him of his
right to a fair trial and to due process under the 5th and 14th
Amendments of the U.S. Constitution.
IV. STANDARD OF REVIEW
[1] An appellate court will sustain a conviction in a bench
trial of a criminal case if the properly admitted evidence,
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
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viewed and construed most favorably to the State, is suffi-
cient to support that conviction. In making this determination,
an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, evaluate explanations, or
reweigh the evidence presented, because these are within a fact
finderâs province for disposition. Instead, the relevant question
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt. 2
[2] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial courtâs determination will not
be disturbed. 3
[3,4] Whether a claim of ineffective assistance of counsel
may be determined on direct appeal is a question of law. 4 In
reviewing claims of ineffective assistance of counsel on direct
appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively
determine whether counsel did or did not provide effective
assistance and whether the defendant was or was not preju-
diced by counselâs alleged deficient performance. 5
V. ANALYSIS
1. Sufficiency of Evidence
[5,6] Dap argues that the evidence presented at trial was
insufficient to find him guilty of possession of a firearm
by a prohibited person and guilty of unlawful discharge of
a firearm. In resolving whether the evidence supports the
convictions, we are mindful that there are two kinds of
2
State v. Vanderford, 312 Neb. 580,980 N.W.2d 397
(2022). 3 State v. Allen,314 Neb. 663
,992 N.W.2d 712
(2023), modified on denial of rehearing ante p. 255,995 N.W.2d 446
.
4
Id.
5
Id.
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evidence, direct and circumstantial. 6 Direct evidence directly
proves the fact in dispute without inference or presumption. 7
Circumstantial evidence is evidence of one or more facts from
which the existence of the fact in dispute may logically be
inferred. 8 Circumstantial evidence is not inherently less proba-
tive than direct evidence, and a fact proved by circumstantial
evidence is nonetheless a proven fact. 9 We now turn to the two
convictions challenged by Dap.
(a) Possession of Firearm
by Prohibited Person
Dap argues that the evidence was insufficient to support his
conviction for possession of a firearm by a prohibited person
under § 28-1206. The only element of the offense that he chal-
lenges is proof that he possessed a firearm.
Dapâs argument relies on the absence of direct evidence.
He highlights that no one found a gun and that Fugate did not
testify that she saw him with a gun.
However, circumstantial evidence supports the conviction.
Fugate heard a gunshot. She looked out the window of her
apartment and saw Dap with an object in his hands. Fugate
heard Dap scream something like, â[expletive] you, next time I
wonât miss.â Law enforcement located a spent shell casing near
where Fugate saw Dap standing. Viewing the evidence in the
light most favorable to the State, a rational trier of fact could
find beyond a reasonable doubt that Dap possessed a gun.
(b) Unlawful Discharge of Firearm
Dap also challenges the sufficiency of the evidence to sup-
port his conviction for unlawful discharge of a firearm. He
relies on the statutory language of § 28-1212.02, making it
6
Estate of Block v. Estate of Becker, 313 Neb. 818,986 N.W.2d 726
(2023). 7Id.
8Id.
9Id.
See, also, State v. Thelen,305 Neb. 334
,940 N.W.2d 259
(2020).
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Cite as 315 Neb. 466a felony when a person âunlawfully and intentionally dis- charges a firearm at an inhabited dwelling house [or] occu- pied building.â Dap contends that no evidence supported a finding that a shot was fired at a dwelling. We disagree. The State presented evidence that two shots were fired, one outside and one inside. With respect to the shot fired outside, Dap argues that there was no evidence regarding the direc- tion it was shot or that it entered a dwelling from the outside. Pointing to inferences that can be drawn from the evidence, the State contends it met its burden of proof. We agree with the State. Much of the same evidence supporting the possession of a firearm conviction also supports the conviction for unlawful discharge of a firearm. Again, Fugate heard a gunshot outside and saw Dap with something in his hand. Dap was scream- ing at someone inside an apartment, and Fugate heard him say something like, ânext time I wonât miss.â Officers found a spent shell casing outside where Fugate saw Dap standing. From this evidence, a reasonable fact finder could determine that Dap fired a gun at an occupant in the apartment, but missed. Viewed in the light most favorable to the State, cir- cumstantial evidence supports the conviction. Dap focuses on the shot fired inside the apartment and argues that it does not fit within the statutory language crimi- nalizing the discharge of a firearm âatâ a dwelling. 10 He cites to case law from other states, reasoning that a shot fired from within an inhabited building or motor vehicle is not a shot fired at a building 11 or vehicle 12 for purposes of that stateâs penal statute. 10 See § 28-1212.02. 11 See, People v. Morales,168 Cal. App. 4th 1075
,85 Cal. Rptr. 3d 873
(2008); People v. Stepney,120 Cal. App. 3d 1016
,175 Cal. Rptr. 102
(1981). 12 See State v. Tafoya, 2012 NMSC 030,285 P.3d 604
(2012).
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The State, in arguing that the second shot satisfies
§ 28-1212.02, relies on evidence that the bullet penetrated the
ceiling and struck the buildingâs structure. Drawing from our
decision in State v. Wells, 13 the State argues that the second
shot resulted in a bullet penetrating the structure of the build-
ing beyond the wall of the apartment within which the shot
was fired.
[7] Whether a firearm discharged within an occupied dwell-
ing satisfies § 28-1212.02 is an issue we need not decide. Here,
the State charged Dap with one count of unlawful discharge
of a firearm and the evidence related to the shot fired outside
supports the conviction. Because an appellate court is not
obligated to engage in an analysis that is not needed to adju-
dicate the controversy before it, 14 we need not resolve whether
Dap could also be convicted based on the shot fired within
the apartment.
2. Motion for New Trial
Dap assigns that the court abused its discretion in overruling
his motion for new trial. He advances three arguments, but all
lack merit.
First, Dap argues that there was not sufficient evidence to
sustain the conviction for possession of a firearm by a pro-
hibited person. But, as we determined above, circumstantial
evidence supported the conviction. Accordingly, the court did
not abuse its discretion in overruling the motion for a new trial
on this ground.
Next, Dap contends that an error of law occurred at trial when
the court failed to apply the plain meaning of § 28-1212.02.
His argument is premised on his contention that discharging a
gun within a dwelling does not support a crime charged under
§ 28-1212.02. Just as we declined to reach that question above,
we need not do so here.
13
State v. Wells, 300 Neb. 296,912 N.W.2d 896
(2018).
14
State v. Dolinar, ante p. 257, 995 N.W.2d 18 (2023).
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Finally, Dap contends that the court should have sustained
his motion for a new trial because there was âan irregularity
in an order of the [c]ourtâ 15 based on the courtâs comments in
making its ruling from the bench. However, these oral com-
ments do not fit within the statutory definition of an order. An
âorderâ is defined as â[e]very direction of a court or judge,
made or entered in writing and not included in a judgment.â 16
To the extent that Dapâs argument can be read to assert
the comments constituted an irregularity in the proceedings,
that argument also fails. Dapâs argument is based on the
courtâs remarks concerning the counts alleging possession
of a firearm by a prohibited person, unlawful discharge of a
firearm, and use of a deadly weapon to commit a felony. At
this point, we emphasize that because a jury was waived, the
court acted as the finder of fact and its statement was made in
that capacity.
In explaining the courtâs view of the evidence, it stated that
those counts were âessentially interwoven,â that âit would
be very difficult for [Dap] to be acquitted of one and not
acquitted of the other or convicted of one and not convicted
of the other,â and that â[t]hey appear to be a package deal of
sorts.â Dap points to no authority suggesting that the judge
in a bench trial is somehow precluded from commenting on
the evidence.
Dap argues that the courtâs statement was incorrect because
a fact finder could determine that he possessed a firearm
but that he did not discharge it at an occupied dwelling. The
courtâs commentary did not foreclose that possibility. Rather,
the court stated that it would be âvery difficultâ to be con-
victed of one and not the other under the circumstances pre-
sented. But more importantly, the court recounted the evidence
upon which it found the State met its burden on all three
counts. There was nothing irregular about that. The courtâs
15
Brief for appellant at 12.
16
Neb. Rev. Stat. § 25-914 (Reissue 2016).
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articulated conclusions regarding the weight of the evidence
fell squarely within its province as the finder of fact. We con-
clude the court did not abuse its discretion in overruling Dapâs
motion for a new trial.
3. Ineffective Assistance of Counsel
[8] Through different counsel, Dap contends that his trial
counsel provided ineffective assistance in numerous ways.
When a defendantâs trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct
appeal any issue of trial counselâs ineffective performance
which is known to the defendant or is apparent from the
record; otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. 17
[9,10] An ineffective assistance of counsel claim is raised
on direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make
a determination of whether the claim can be decided upon
the trial record and (2) a district court later reviewing a peti-
tion for postconviction relief to recognize whether the claim
was brought before the appellate court. 18 When a claim of
ineffective assistance of counsel is raised in a direct appeal,
the appellant is not required to allege prejudice; however,
an appellant must make specific allegations of the conduct
that he or she claims constitutes deficient performance by
trial counsel. 19
[11] Once raised, an appellate court will determine whether
the record on appeal is sufficient to review the merits of
the ineffective performance claims. The record is sufficient
if it establishes either that trial counselâs performance was
not deficient, that the appellant will not be able to estab-
lish prejudice as a matter of law, or that trial counselâs
17
State v. Thomas, 311 Neb. 989,977 N.W.2d 258
(2022). 18 State v. Miranda,313 Neb. 358
,984 N.W.2d 261
(2023). 19Id.
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actions could not be justified as a part of any plausible trial
strategy. 20
[12-14] To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 21 the defendant
must show that counselâs performance was deficient and that
this deficient performance actually prejudiced the defendantâs
defense. 22 To show that counselâs performance was deficient,
the defendant must show counselâs performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. 23 To show prejudice from counselâs deficient performance,
the defendant must demonstrate a reasonable probability that
but for counselâs deficient performance, the result of the pro-
ceeding would have been different. 24
With these standards and general principles in place, we turn
to the deficiencies alleged by Dap.
(a) Failure to Communicate and
Adequately Review Discovery
Dap faults trial counselâs failure to adequately meet and
review discovery materials with him. He asserts that he repeat-
edly asked trial counsel for discovery materials, but that
counsel only viewed discovery materials with him briefly.
Dap further contends that if counsel had âprovided reportsâ to
him, he would have been in a better position to inform coun-
sel of any inaccuracies and to explain âpotential defenses and
potential witnesses that could have testified to who had a gun
and in which direction shots were fired from it.â 25 Dap does
not identify any reports that would have aided his defense,
20
Id.21 Strickland v. Washington,466 U.S. 668
,104 S. Ct. 2052
,80 L. Ed. 2d 674
(1984). 22 State v.Allen, supra note 3
. 23Id.
24Id.
25
Brief for appellant at 19.
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any inaccuracies that were contained therein, any potential
defenses, or any potential witnesses who would have testi-
fied either that someone other than Dap possessed the gun
or that it was not fired at the apartment building. Although
we have some doubt regarding whether Dap sufficiently pled
this claim, both parties assert that the record is insufficient to
review it.
In the Stateâs brief, it alternatively asked this court to take
judicial notice of two trial court documents not contained in
the appellate record. However, at oral argument, the State
backed away from this request and correctly observed that it
could have submitted a supplemental transcript to make these
documents part of the appellate record. 26 We need not specu-
late whether it would ever be proper to use judicial notice
to expand the appellate record on direct appeal of a criminal
conviction where ineffective assistance of trial counsel is
assigned. Accordingly, we accept the partiesâ statements that
the appellate record is insufficient to review Dapâs claims
related to counselâs failure to adequately review discovery
with him.
(b) Failure to Conduct Depositions
Dap argues that his counsel performed deficiently by fail-
ing to depose Fugate and Roehrich. He asserts that there was
no strategic reason to avoid placing key witnesses under oath
prior to trial. The State responds that counsel cross-examined
Fugate and Roehrich at trial and that Dap did not assign that
the witnesses were not cross-examined effectively.
Dap contends that Fugate should have been deposed because
she was the only witness to identify him. But he does not elab-
orate on how taking Fugateâs deposition would have aided his
case or, conversely, on how not taking her deposition harmed
his case.
26
See Neb. Ct. R. App. P. § 2-104(C) (rev. 2022).
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Dap asserts that if Roehrich had been deposed, Dap would
have learned before trial that there was another witness at
the scene who was not interviewed or identified as a possible
suspect. Again, Dap does not elaborate on how this informa-
tion would have helped his defense. And it is unclear to whom
Dap is referring: Roehrich testified about a âfemale that would
come down and walk right by [Dap] on the stairwayâ and
âa maleâ who emerged from âthat apartment.â And although
Roehrich did not speak to this male, whom he referred to
as âMichael,â Roehrich testified that âthey detained him.â
Presumably, an officer questioned the male in connection with
detaining him.
There can be no doubt that Dap was aware of other wit-
nesses at the scene. Dap does not argue that he was not there.
He interacted with both the male and the female. During a
preliminary hearingâheld 6 months prior to trialâRoehrich
testified that the female was with Dap and that other officers
identified her. He further testified that âthere was another male
that was involved in their disturbanceâ and that other officers
secured the scene as Roehrich tried to obtain Dapâs coopera-
tion. We conclude that this claim is insufficiently pled.
(c) Failure to Investigate and Attempt
to Develop Favorable Evidence
Dap asserts that counsel provided ineffective assistance by
failing to investigate and develop evidence favorable to Dap.
According to Dap, âHad trial counsel met or communicated
with [Dap], they could have had meaningful conversations
about the Stateâs case against him, evaluated potential wit-
nesses and trial strategy.â 27 He contends that based on trial
testimony, one or two individuals were at the apartment
building but not identified or interviewed. Dap suggests that
â[e]ither one of these unnamed and unspoken to witnesses
may have been able to clear up issues regarding who in fact
27
Brief for appellant at 18.
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possessed the gun and what direction the gun was fired.â 28
This appears to be directed toward the same individuals
discussed above in connection with Dapâs contention that
counsel should have deposed Roehrich. It fails for the same
reason. We conclude this claim is insufficiently pled.
(d) Advice To Not Testify
Dapâs last assignment of ineffective assistance concerns
counselâs advice that Dap not testify in his own behalf. Dap
asserts that he waived his right to testify because he relied on
counselâs âgreater knowledge and experience in trial strategy.â 29
According to Dap, he would have testified that he has never
owned a gun and that he did not have a gun on the night in
question. The record is insufficient to address this claim.
4. Cumulative Effect
Finally, Dap argues that all of the errors establish that he did
not receive a fair trial. Long ago, we recognized the cumula-
tive error doctrine in the context of a criminal jury trial. 30 We
explained that while one or more errors, standing alone, may
not constitute reversible error, if their cumulative effect was to
deprive the defendant of a fair and impartial trial, a new trial
must be granted. 31
[15] Here, Dap opted for a bench trial. In a case tried to
the court without a jury, there is a presumption that the trial
court, in reaching its decision, considered only evidence that
is competent and relevant, and this court will not overturn
such a decision where there is sufficient material, compe-
tent, and relevant evidence to sustain the judgment. 32 We
have found no merit to Dapâs assigned errors. His claims of
28
Id. at 19.
29
Id. at 21.
30
See Wamsley v. State, 171 Neb. 197,106 N.W.2d 22
(1960). 31 Seeid.
32 State v. Anders,311 Neb. 958
,977 N.W.2d 234
(2022).
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ineffective assistance of counselâwhich either are insuffi-
ciently pled or are unable to be addressed on direct appealâ
cannot form the basis for a claim of cumulative error. 33 The
cumulative error doctrine does not apply here.
VI. CONCLUSION
We conclude that the evidence, viewed in the light most
favorable to the prosecution, supported Dapâs convictions for
possession of a firearm by a prohibited person and for unlaw-
ful discharge of a firearm and that the court did not abuse its
discretion in overruling Dapâs motion for a new trial. We fur-
ther conclude that Dapâs allegations of ineffective assistance
of counsel either are insufficiently pled or cannot be resolved
on direct appeal and that the cumulative error doctrine pro-
vides no basis for relief. Accordingly, we affirm the district
courtâs judgment.
Affirmed.
Stacy, J., participating on briefs.
33
See, id.; State v. Stelly, 304 Neb. 33,932 N.W.2d 857
(2019).