State v. Rupp

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. RUPP
Cite as 33 Neb. App. 562
State of Nebraska, appellee, v.
Kyle L. Rupp, appellant.
___ N.W.3d ___
Filed April 29, 2025. 	No. A-24-522.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence to
sustain the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
2. 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.
3. ____: ____. 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 prejudiced by counsel’s alleged deficient
performance.
4. Convictions: Evidence: Appeal and Error. 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. 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.
5. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough par-
ticularity 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
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:29 AM CDT

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STATE v. RUPP
Cite as 33 Neb. App. 562
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
6. 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.
7. 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 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.
8. 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
his or her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense.
9. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law. To show preju-
dice under the prejudice component of Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must
demonstrate a reasonable probability that but for his or her counsel’s
deficient performance, the result of the proceeding would have been
different.
10. Effectiveness of Counsel: Appeal and Error. Assignments of error
on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate court will not
scour the remainder of the brief in search of such specificity.
11. Effectiveness of Counsel: Witnesses: Appeal and Error. When the
claim of ineffective assistance on direct appeal involves uncalled wit-
nesses, vague assertions that counsel was deficient for failing to call
“witnesses” are little more than placeholders and do not sufficiently
preserve the claim.
12. Effectiveness of Counsel: Postconviction: Witnesses: Appeal and
Error. Appellate counsel must give on direct appeal at least the names
or descriptions of any uncalled witnesses forming the basis of a claim
of ineffective assistance of trial counsel so that a postconviction court
may later identify whether a particular claim of failing to investigate a
witness is the same one that was raised on direct appeal.

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STATE v. RUPP
Cite as 33 Neb. App. 562
13. Effectiveness of Counsel: Witnesses: Appeal and Error. An appel-
late counsel’s reference to trial counsel’s failure to call “character
witnesses,” even with some allusion to what they would have said,
was insufficiently specific to raise a claim of ineffective assistance on
direct appeal.
14. ____: ____: ____. References to “multiple eyewitnesses” and “alibi wit-
nesses” are insufficiently specific to effectively raise a claim of ineffec-
tive assistance on direct appeal based on the failure to call witnesses.
15. Postconviction: Effectiveness of Counsel: Records: Appeal and
Error. In the case of an argument presented for the purpose of avoiding
procedural bar to a future postconviction action, appellate counsel must
present the claim 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 petition for postconvic-
tion relief to be able to recognize whether the claim was brought before
the appellate court.
16. Effectiveness of Counsel: Appeal and Error. In order to preserve an
ineffective assistance of counsel claim on direct appeal, the claim must
be stated with particularity in the assignment of error and then sepa-
rately argued. In determining whether the assigned error is stated with
particularity, it must satisfy the two-prong test prescribed in State v.
Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
Appeal from the District Court for Scotts Bluff County: Leo
P. Dobrovolny, Judge. Affirmed.
Jerald L. Ostdiek, of Douglas, Kelly, Ostdiek, Snyder, Ossian
& Vogl, P.C., for appellant.
Michael T. Hilgers, Attorney General, and P. Christian
Adamski for appellee.
Moore, Bishop, and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
Kyle L. Rupp appeals from his jury convictions in the Scotts
Bluff County District Court for second degree assault and use
of a deadly weapon to commit a felony. Rupp contends that the
evidence was insufficient to support his convictions and that
his trial counsel was ineffective. For the reasons stated herein,
we affirm.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. RUPP
Cite as 33 Neb. App. 562
II. STATEMENT OF FACTS
On December 12, 2023, Rupp, who was intoxicated, visited
the home of his cousin, Kayla Rupp. Rupp ostensibly went
to Kayla’s home because he wanted to get her advice about
some family issues. Kayla repeatedly asked Rupp to leave,
and when he failed to do so, she went to a neighbor’s house to
use the phone. That neighbor, Sherry Clark, answered the door
with a baseball bat, which was not unusual for her to do, and
informed Kayla that her phone was not working properly and
advised her to use another neighbor’s phone. Rupp followed
Kayla to Clark’s home, and a struggle ensued between Rupp
and Clark, with Rupp’s gaining control of the baseball bat,
which caused Clark to fall into a fence. Rupp dropped the bat
and began to walk away, but then grabbed the bat and reap-
proached the porch. After getting up, Clark went into her home
and retrieved a loaded shotgun, which she pointed at Rupp.
Rupp hit Clark with the bat and eventually obtained posses-
sion of both the bat and the shotgun before walking away from
the scene. A law enforcement officer contacted Rupp as Rupp
was walking away from the area, and both the shotgun and
baseball bat were located in a nearby bush.
Following this altercation, the State charged Rupp with
second degree assault, a Class IIA felony, and use of a deadly
weapon to commit a felony, a Class II felony. The trial was
held in April 2024, during which trial evidence was adduced
from witnesses, including a Scottsbluff police officer, Caleb
Scott; Clark; Rupp; and Kayla, who was called as a witness
by both the State and the defense. During the trial, the State
presented testimony as set forth above.
1. Testimony of Officer Scott
Officer Scott testified that on December 12, 2023, he
responded to a call regarding an active disturbance between a
male and two females. As he approached the area, Officer Scott
contacted Rupp, who was walking northbound. Officer Scott
observed that Rupp appeared to be intoxicated, as he had the
odor of alcohol emanating from his person; he had bloodshot,

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STATE v. RUPP
Cite as 33 Neb. App. 562
watery eyes; and he had slurred speech. Rupp informed Officer
Scott that Clark had pulled a shotgun on him. Officer Scott,
with the assistance of another officer, seized the shotgun and
the baseball bat, which were found in a nearby bush.
2. Testimony of Kayla
Kayla testified that on December 12, 2023, she received
an unexpected visit from Rupp, who was intoxicated. Rupp
told Kayla that he came to her apartment because “he needed
somebody and that was it.” Kayla testified that, despite asking
Rupp to leave four or five times, he did not comply and an
altercation ensued. She stated that she went to Clark’s home
to use the phone. Kayla testified that Clark answered the door
with a baseball bat, told Kayla that her phone was not work-
ing, and suggested that Kayla use another neighbor’s phone.
Rupp followed Kayla to Clark’s home, and Clark “kind of
nudged” Rupp in the stomach with the bat. Kayla proceeded
to the other neighbor’s door but “they didn’t answer at first.”
After hearing Clark fall into the fence, Kayla “ran and helped
her up.” At that time, Rupp was walking away toward the
main sidewalk, but he returned with the baseball bat. Kayla
testified that as Rupp “started walking back[, Clark] had come
out with her shotgun and had her finger on the trigger. That’s
when I ran over to the other neighbors to call the police.”
Kayla testified that she observed Rupp hit Clark’s hand with
the baseball bat after Clark “grabbed him in his . . . private
area.” Kayla testified that she felt Rupp was basically trying
to prevent Clark from firing the shotgun.
3. Testimony of Clark
Clark testified that on December 12, 2023, she was watch-
ing television when she heard someone on the sidewalk outside
her house screaming, “[N]o, don’t touch me, . . . go away, . . .
I’m going to call the cops.” Clark opened her door with a bat
by her side and “saw [Rupp] behind [Kayla].” Clark testified
that she commonly answered her door at night with a bat down
by her side like a cane.

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STATE v. RUPP
Cite as 33 Neb. App. 562
After Clark informed Kayla that her phone was not working,
Rupp “went from the middle sidewalk and he came marching
towards my door.” Clark testified that when Rupp “started
walking up to the door, I put [the bat] up like I was going
to . . . hit a ball, hit a pitch.” Clark testified that after Rupp
refused Kayla’s request to “go away,” Clark took a half step
out the door and
kind 	of 	swung 	[the 	bat] 	forward 	(witness 	indicates)
towards [Rupp’s] mid-section or his top leg, kind of that
area . . . . [H]e caught the bat and grabbed it because
I couldn’t do a full swing [because] it was between us
vertically . . . with me holding one end and him holding
the other. . . . [H]e started to drag me out from my little
sidewalk . . . . And, so I just started pushing him, I put the
bat right here [stomach area] on him (witness indicates)
and I just started pushing him.
. . . .
. . . I pushed him and I got him almost all the way to
the gate.
. . . .
. . . So there is a gate right here, um, and then I wanted
to get him past that. And, so I pushed him from down
here and we were almost to the gate when . . . he stopped
and wouldn’t back up any further. And, so I just pulled
the bat towards me and shoved it into him a couple of
times (witness indicates) you know like trying to prod
him along. And . . . I’m not quite sure what happened
next, but I do know that I found myself lying [head-
first] into that chain-link fence and I cut my hand really
bad on it, and I hit my head on it, and my head and my
neck hurt.
Clark testified that when she initially stepped outside and
decided to swing the bat at Rupp, he had not hit her, but
she did so because “I was scared and I thought that he was
going to hurt [Kayla].” Clark testified that when Kayla helped
her up, Rupp began “stomping away,” but that he suddenly

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Nebraska Court of Appeals Advance Sheets
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STATE v. RUPP
Cite as 33 Neb. App. 562
“turn[ed] around and he start[ed] marching back . . . . I had
heard him throw the bat as he was going out towards the street
and I heard it hit the concrete. And, so when he turned around
and came back I ran into the house and I got my granddad’s
gun.” Clark stated that she grabbed the gun because she was
afraid and wanted to protect herself.
Thereafter, Clark testified that she stepped back into her
doorway with the loaded shotgun, brought it up to her shoul-
der, and aimed at Rupp’s head. She testified:
I remember my dad telling me that you’re not supposed
to . . . aim a loaded gun at something unless you are will-
ing to kill it and I didn’t want to kill him, I just wanted
him gone. So I moved it over to the right of it and then I
decided, you know, nobody is coming outside and nobody
is paying attention. And, the gun when it goes off, it
sounds like a canon. And, so I pulled it up to my chest,
pointed to my right (witness indicates) and in the air and
I, um, pulled the trigger, but it misfired, um, it stove-
piped is what we call it. And, so it misfired and the bullet
stands up in the area that it’s ejected from.
. . . .
Yeah, sorry. I always call it a bullet. Yes. And, um, so
I grabbed it and I was going to go to push it back down
and I put the butt of the gun against my knee, um, so that
I could have this hand free without worrying about it.
And, I — I’m not quite sure exactly what happened. I do
remember seeing his hand shoot out and grab the gun and
that started the struggle for it.
At some point, Clark testified that Rupp retrieved the base-
ball bat and hit her with it. Clark testified that Rupp
dragged me from my doorway and we wrestled back
and forth and it was probably about here . . . where he
started hitting me with the baseball bat because I had
both of my arms on the gun (witness indicates) and,
I knew that I couldn’t [lose] it like I lost the bat or it

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Nebraska Court of Appeals Advance Sheets
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STATE v. RUPP
Cite as 33 Neb. App. 562
would be really bad. And, so he started just hitting me
across the top of both my arms with the bat.
. . . .
. . . Um, he was hitting me and I’m not quite sure how
it happened. I remember movement, um, and then all of
a sudden he was behind me and, um, he had his. . . arm
. . . across . . . the upper part of my chest. And, so I did
what my brother always told me to do, I bent forward
and I reached back and started grabbing for his “twig and
berries” [Rupp’s groin area].
Following the altercation, Rupp began walking down the
sidewalk holding the baseball bat and the shotgun. Clark tes-
tified that she contacted a neighbor who was already on the
phone with law enforcement and told her the direction Rupp
was walking. Following the incident, Clark received treatment
at a hospital.
4. Testimony of Rupp
Rupp, testifying in his own behalf, stated that he visited
Kayla on December 12, 2023, because he was having a bad
day with family situations and wanted to get her advice. Rupp
testified that Kayla told him that “she didn’t need no negativ-
ity now in her life, I needed to leave, because she couldn’t
handle more stress.” Rupp testified that he went to the neigh-
bor’s house to see if he could use the phone there to get a ride
“and that’s when [Clark] came out and started hitting me in
the stomach with the bat.” Rupp testified that Clark hit him
two times with the bat, but on the third swing, “I grabbed the
bat from her and we [were] struggling trying to take it away
from her. During that struggle [is] when she slipped and fell
into the fence and I started to leave . . . .” After Rupp heard
Kayla or Clark say that they were going to call the “cops,” he
turned around so he could defend himself when law enforce-
ment arrived. Rupp testified that he was waiting by Kayla’s
door when Clark “[came] out with the shotgun,” which was
when he “got real scared.” Rupp testified that Clark

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STATE v. RUPP
Cite as 33 Neb. App. 562
was pointing [the gun] at me and I — come find out
later she had the thing loaded, that’s scary. . . . [S]o she’s
pointing it at me and that’s when I go to grab it from her
and making sure to keep the barrel away from her head,
or my head, or the neighbor’s. I’m doing this and I’m
yelling, I told her to let go, take her hand off the trig-
ger. Well, she wouldn’t let go, she’s still trying to get it
pointed at me like that (witness indicates). That’s when
I smacked her hands a couple times with that bat to get
her to release that shotgun. And, as soon as I was able to
get those two items from her, I took off . . . and I stashed
those two items in the bush to make sure that the cops
didn’t think I was going to shoot them. I didn’t want to
die that night. So shortly after I put those there, that’s
when the officers rolled up on me and I tried telling them
what was going on.
Rupp testified that he did not use the bat until Clark aimed the
shotgun at him.
5. Verdicts and Sentences
Following the trial, the jury found Rupp guilty on both
charges. Thereafter, the district court sentenced Rupp to 1 to 2
years’ imprisonment for each conviction. The sentences were
ordered to run consecutively, and Rupp was given credit for
100 days served. Rupp now appeals from his convictions and
sentences and is represented by new counsel on appeal.
III. ASSIGNMENTS OF ERROR
Rupp assigns, renumbered and restated, that (1) the evi-
dence was insufficient to support his convictions and (2) he
received ineffective assistance of trial counsel when counsel
(a) failed to subpoena requested witnesses who would have
been beneficial to Rupp, (b) failed to introduce evidence at
the trial that would have been beneficial to Rupp, (c) failed to
have Rupp present during important pretrial stages and advise
him that he was able to attend the deposition of the alleged
victim, (d) failed to adequately pursue a plea agreement, (e)

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STATE v. RUPP
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failed to effectively and adequately prepare for the jury trial,
(f) failed to adequately represent Rupp in pretrial motions on
the issue of bond, and (g) failed to provide an effective and
zealous defense.
IV. STANDARD OF REVIEW
[1] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Dixon, 306 Neb. 853, 947
N.W.2d 563 (2020).
[2,3] Whether a claim of ineffective assistance of coun-
sel may be determined on direct appeal is a question of law.
State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023). 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 counsel’s alleged deficient performance. Id.
V. ANALYSIS
1. Sufficiency of Evidence
Rupp argues that the evidence was insufficient to support
either of his convictions because the “evidence presented at
trial leads a rational trier of fact to find that [Rupp] was acting
in self[-]defense.” Brief for appellant at 12.
However, in State v. Woolridge-Jones, 316 Neb. 500, 520,
5 N.W.3d 426, 439-40 (2024), the Nebraska Supreme Court
rejected a similar argument, stating:
To the extent [the defendant] argues that the evidence
supported at most a manslaughter conviction, see Neb.
Rev. Stat. § 28-305(1) (Reissue 2016), or that his actions
were justified by self-defense or defense of another, see
Neb. Rev. Stat. §§ 28-1409 and 28-1410 (Reissue 2016),

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STATE v. RUPP
Cite as 33 Neb. App. 562
he asks us to make credibility determinations, reweigh
the evidence, and reach our own conclusion. But that was
the jury’s role, not ours. See State v. Stack, 307 Neb. 773,
950 N.W.2d 611 (2020) (appellate court does not resolve
conflicts in evidence, pass on credibility of witnesses, or
reweigh evidence; such matters are for finder of fact).
Likewise, in this case, Rupp asks us to make a credibility
determination, resolve conflicts in the evidence, and reweigh
the evidence related to his self-defense claim. However, that is
the role of the fact finder, and we will not substitute the jury’s
factual findings with our own.
Rupp was convicted of second degree assault in violation
of Neb. Rev. Stat. § 28-309(1)(a) (Reissue 2016), which pro-
vides, in pertinent part, that “[a] person commits the offense
of assault in the second degree if he or she . . . [i]ntentionally
or knowingly causes bodily injury to another person with a
dangerous instrument.” Rupp was also convicted of use of
a deadly weapon to commit a felony under Neb. Rev. Stat.
§ 28-1205(l)(a) (Cum. Supp. 2024), which provides, in per-
tinent part, that “[a]ny person who uses a firearm, a knife,
brass or iron knuckles, or any other deadly weapon to commit
any felony which may be prosecuted in a court of this state
commits the offense of use of a deadly weapon to commit a
felony.” A “[d]eadly weapon” is defined as “any firearm, knife,
bludgeon, or other device, instrument, material, or substance,
whether animate or inanimate, which in the manner it is used
or intended to be used is capable of producing death or serious
bodily injury.” Neb. Rev. Stat. § 28-109(8) (Reissue 2016).
[4] The evidence, when viewed in the light most favorable
to the State, established that Rupp hit Clark with a baseball
bat, causing her serious physical injury that required her to
go to the hospital. Clark testified that “above [her] wrist was
majorly deformed” and that she thought her arm was “bro-
ken.” Additionally, she had bruises from her elbow to “the
tips of [her] fingers on both arms,” which “swelled up really
big” to the point where she “couldn’t even feed [herself]

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for two weeks.” And although Rupp argued that he acted
in self-defense, there was evidence that following the first
altercation, when Rupp wrestled the bat away from Clark
and walked away, he returned with the bat despite previ-
ously being instructed to leave. This resulted in the second
encounter, when he struck Clark, who had retrieved a shotgun
when Rupp returned to her porch while brandishing the bat.
Although Rupp testified to a different version of events, the
jury apparently found that his testimony was not credible. In
reviewing a criminal conviction for a sufficiency of the evi-
dence 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 mat-
ters are for the finder of fact. State v. Miranda, 313 Neb. 358,
984 N.W.2d 261 (2023). 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.
Id. Applying that standard to this record, this assignment of
error fails.
2. Ineffective Assistance of Counsel
Rupp next assigns that he was denied effective assistance
of counsel during the trial when counsel (a) failed to subpoena
requested witnesses who would have been beneficial to Rupp,
(b) failed to introduce evidence at the trial that would have
been beneficial to Rupp, (c) failed to have Rupp present during
important pretrial stages and advise him that he was able to
attend the deposition of the alleged victim, (d) failed to ade-
quately pursue a plea agreement, (e) failed to effectively and
adequately prepare for the jury trial, (f) failed to adequately
represent Rupp in pretrial motions on the issue of bond, and
(g) failed to provide an effective and zealous defense.
[5,6] An ineffective assistance of counsel claim is raised
on direct appeal when the claim alleges deficient performance

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STATE v. RUPP
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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 petition
for postconviction relief to recognize whether the claim was
brought before the appellate court. State v. Miranda, supra.
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. Id.
[7] Once raised, an appellate court will determine whether
the record on appeal is sufficient to review the merits of the
ineffective performance claims. Id. The record is sufficient if
it establishes either that trial counsel’s performance was not
deficient, that the appellant will not be able to establish preju-
dice as a matter of law, or that trial counsel’s actions could not
be justified as a part of any plausible trial strategy. Id.
[8,9] 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 his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. State v. Miranda, supra. To show that counsel’s per-
formance was deficient, the defendant must show counsel’s
performance did not equal that of a lawyer with ordinary
training and skill in criminal law. To show prejudice under
the prejudice component of Strickland, the defendant must
demonstrate a reasonable probability that but for his or her
counsel’s deficient performance, the result of the proceeding
would have been different. State v. Miranda, 313 Neb. 358,
984 N.W.2d 261 (2023).
[10] Assignments of error on direct appeal regarding inef-
fective assistance of trial counsel must specifically allege
deficient performance, and an appellate court will not scour
the remainder of the brief in search of such specificity. State v.
German, 316 Neb. 841, 7 N.W.3d 206 (2024).

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(a) Failure to Subpoena Requested Witnesses
Rupp’s first ineffectiveness of trial counsel assignment of
error alleges that his trial counsel was ineffective in “fail[ing]
to subpoena to testify [Rupp’s] requested witnesses, who would
have been beneficial to [Rupp].”
[11,12] In State v. Rush, 317 Neb. 622, 673-74, 11 N.W.3d
394, 435 (2024), modified on denial of rehearing 317 Neb.
917, 12 N.W.3d 787, the Nebraska Supreme Court stated:
The alleged failure to call “any other character witness”
fails to sufficiently raise a claim of ineffective assistance
of counsel. When the claim of ineffective assistance on
direct appeal involves uncalled witnesses, vague asser-
tions that counsel was deficient for failing to call “wit-
nesses” are little more than placeholders and do not
sufficiently preserve the claim. Appellate counsel must
give on direct appeal at least the names or descriptions
of any uncalled witnesses forming the basis of a claim of
ineffective assistance of trial counsel. Such specificity is
necessary so that a postconviction court may later iden-
tify whether a particular claim of failing to investigate a
witness is the same one that was raised on direct appeal.
[13,14] An appellate counsel’s reference to trial counsel’s
failure to call “character witnesses,” even with some allusion to
what they would have said, was insufficiently specific to raise
a claim of ineffective assistance on direct appeal. See State v.
Mora, 298 Neb. 185, 903 N.W.2d 244 (2017). And references
to “‘multiple eyewitnesses’” and “‘alibi witnesses’” are insuffi-
ciently specific to effectively raise a claim of ineffective assist-
ance on direct appeal based on the failure to call witnesses.
State v. Rush, 317 Neb. at 678, 11 N.W.3d at 438.
Here, in his assignment of error, Rupp alleges that his trial
counsel was ineffective for “fail[ing] to subpoena to testify
[his] requested witnesses, who would have been beneficial
to [Rupp].” That allegation most assuredly does not conform
with the directive in Rush that “appellate counsel must give
on direct appeal at least the names or descriptions of any

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uncalled witnesses forming the basis of a claim of ineffec-
tive assistance of trial counsel.” 317 Neb. at 678, 11 N.W.3d
at 438.
Although Rupp was somewhat more descriptive in the
argument section of his brief regarding these witnesses, the
Nebraska Supreme Court specifically held in State v. Mrza,
302 Neb. 931, 935, 926 N.W.2d 79, 86 (2019):
We observe that [the defendant’s] last assignment lacked
the specificity we demand on direct appeal. We have held
that when raising an ineffective assistance claim on direct
appeal, an appellant must make specific allegations of
the conduct that he or she claims constitutes deficient
performance by trial counsel. And we have long held that
an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the
error to be considered by an appellate court. It follows
that we should not have to scour the argument section of
an appellant’s brief to extract specific allegations of defi-
cient performance. We now hold that assignments of error
on direct appeal regarding ineffective assistance of trial
counsel must specifically allege deficient performance,
and an appellate court will not scour the remainder of the
brief in search of such specificity.
[15] For clarity, the assigned error the Nebraska Supreme
Court was addressing in Mrza was the defendant’s claim that
his counsel was ineffective in “‘fail[ing] to adequately investi-
gate [the defendant’s] defenses and effectively cross-examine
witnesses.’” 302 Neb. at 935, 926 N.W.2d at 86. Although
those assignments could be generally categorized as referring
to a failure to investigate a defendant’s case and a failure to
cross-examine during trial, it is not surprising that this general
categorization of error fell short of the Nebraska Supreme
Court’s prior statement governing the meaning of alleging an
ineffective assistance assignment of error with specificity. The
court held in State v. Abdullah, 289 Neb. 123, 132-33, 853
N.W.2d 858, 866 (2014):

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We did not elaborate, however, on the level of speci-
ficity of such allegations beyond the general principles
concerning vague and conclusory assignments of error
and arguments. Given that [the defendant’s] arguments
are stated more cursorily than those presented in [State
v.] Filholm, [287 Neb. 763, 848 N.W.2d 571 (2014),]
we are more squarely presented with that question here.
We hold that in the case of an argument presented for
the purpose of avoiding procedural bar to a future post-
conviction action, appellate counsel must present the
claim 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 petition for postconviction relief to be able
to recognize whether the claim was brought before the
appellate court.
In applying that standard to the claim that the defendant’s
counsel in Abdullah failed to call “‘at least two witnesses’”
that the defendant claimed would be beneficial to his case, the
court held that
the vague assertion referring to “at least two” witnesses
seems little more than a placeholder. Our case law is
clear that were this a motion for postconviction relief,
[the defendant] would be required to specifically allege
what the testimony of these witnesses would have been if
they had been called in order to avoid dismissal without
an evidentiary hearing. Without such specific allegations,
the postconviction court would effectively be asked to
“‘conduct a discovery hearing to determine if anywhere
in this wide world there is some evidence favorable to
defendant’s position.’”
In a direct appeal, we do not need specific factual alle-
gations as to who should have been called or what that
person or persons would have said to be able to conclude
that any evidence of such alleged ineffective assistance
will not be found in the trial record. Nevertheless, we

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are concerned with the lack of any specificity as to who
those uncalled witnesses were from the standpoint of a
potential postconviction court’s ability to identify if a
particular failure to call a witness claim is the same one
that was raised on direct appeal.
[The defendant’s] appellate counsel argues that it is
impractical in the time granted for a direct appeal to fully
research the alleged deficient conduct of trial counsel and
to allege factual details of such conduct with specificity.
And we are sensitive to some of the concerns expressed
by the U.S. Supreme Court in Massaro[ v. United States,
538 U.S. 500, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003)].
But we can think of no good reason why [the defendant]
would be unable to give appellate counsel the names
or descriptions of the uncalled witnesses he claims he
informed trial counsel of.
State v. Abdullah, 289 Neb. at 133-34, 853 N.W.2d at 867.
At the time that Abdullah was decided in 2014, the Nebraska
Supreme Court had not made the directive that the specificity
required for claims of ineffective assistance must separately
be stated in the assignments of error section of the brief. As
such, the court reviewed the argument section of the brief
in Abdullah in search of greater clarity than provided in the
assignments of error. But following its 2019 decision in State
v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019), the Court stated
it would no longer scour the argument section of the brief in
search of such clarity.
[16] Taken together, in order to preserve an ineffective
assistance of counsel claim on direct appeal, the claim must
be stated with particularity in the assignment of error and then
separately argued. In determining whether the assigned error
is stated with particularity, it must satisfy the two-prong test
prescribed in State v. Abdullah, 289 Neb. 123, 853 N.W.2d
858 (2014). As the dissent notes, in State v. Rush, 317 Neb.
622, 11 N.W.3d 394 (2024), modified on denial of rehearing
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did find clarity in the assigned error through a statement made
in the argument section of the brief. But in our view, if there
was any confusion governing the requirement that the claim
must separately be stated with particularity within the assign-
ments of error section of the brief for the appellant, meaning
the assigned error itself must satisfy the two-prong pleading
standard, that matter was recently settled in State v. German,
316 Neb. 841, 7 N.W.3d 206 (2024). In German, the Nebraska
Supreme Court examined an assignment of error that alleged
the appellant’s trial counsel
was ineffective “in respect to [a]dvice [p]rovided on the
[d]ecision to [w]aive the [r]ight to [t]estify [b]y [p]rovid-
ing [u]nreasonable [a]dvi[c]e [n]ecessary for a [m]eaning-
ful [d]ecision.” This assignment lacks the specificity we
demand on direct appeal.
Assignments of error on direct appeal regarding inef-
fective assistance of trial counsel must specifically allege
deficient performance, and an appellate court will not
scour the remainder of the brief in search of such speci-
ficity. This is not a new principle. We have adhered to it
on numerous occasions.
316 Neb. at 872, 7 N.W.3d at 229.
The assigned error in German could be generally catego-
rized as a claim of failing to provide adequate advice in con-
nection with the defendant’s decision not to testify. And when
applying the two-prong test set forth in Abdullah, supra, it
does provide sufficient particularity for an appellate court to
determine that such advice was not contained in the record.
But similar to Abdullah, the assignment did not satisfy the
second prong of the test because of its generality. This broadly
worded assignment would fall within the ambit of a place-
holder because, as the court went on to explain, this “asser-
tion does not set forth the advice actually given and claimed
to be insufficient, or the specific advice not given.” State v.
German, 316 Neb. at 873, 7 N.W.3d at 230. And although the
court went on to find that even if it did expand its review to

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the argument section of the brief, the claim would still fail,
and we read that as an admonition that the Court intended to
subsequently enforce its original pronouncement set forth in
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
Applying this precedent, we find that Rupp’s general assign-
ment that his counsel was ineffective in “fail[ing] to subpoena
to testify [his] requested witnesses, who would have been ben-
eficial to [Rupp],” was not stated with specificity within the
assignments of error section of the brief, and we will not scour
the remainder of the brief in an attempt to gain more clarity.
More specifically, although this assignment may be sufficient
to conclude the matter could not be deciphered from the
record, Rupp’s failure to provide the names of the witnesses or
specific description of them makes it impossible for a district
court later reviewing a petition for postconviction relief to be
able to recognize whether the specific claimed witnesses were
brought before the appellate court. Stated differently, Rupp
identified a category of ineffective assistance without specifi-
cally identifying the witnesses his counsel should have called.
Accordingly, this claim is not preserved.
(b) Failure to Introduce Evidence
Beneficial to Defense
Rupp next assigns that his trial counsel was ineffective in
“fail[ing] to introduce evidence at the trial which would have
been beneficial to [Rupp].”
In State v. Bedford, 31 Neb. App. 339, 369-70, 980 N.W.2d
451, 475-76 (2022), this court found:
[The defendant] contends that trial counsel was inef-
fective in failing to “present evidence . . . in [counsel’s]
possession at trial,” including “emails and text messages”
from [the victim]. Brief for appellant at 31. He asserts that
“[t]hese emails and text messages could have been used
to impeach and . . . challenge” [the victim’s] testimony.
Id. We conclude that this claim of deficient performance
has not been sufficiently alleged.
. . . .

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[The defendant] offers this court no further description
of which emails or text messages are applicable; nor does
he provide any indication of their contents or how they
could have been used to impeach [the victim’s] testimony.
It is not sufficient to simply allege that some messages
were in counsel’s possession that may or may not have
been relevant to the impeachment of [the victim’s] testi-
mony. See, State v. Hill, 298 Neb. 675, 699, 905 N.W.2d
668, 686 (2018) (ineffective assistance of trial counsel
claim regarding counsel’s failure to depose “‘numerous
other police officers’” without specifically alleging what
testimony of these witnesses would have been is not suf-
ficient allegation of deficient performance for purpose
of preserving claim for postconviction review); State v.
Ash, [293 Neb. 583, 878 N.W.2d 569 (2016)] (ineffective
assistance of trial counsel claim alleging deficient per-
formance based merely on trial counsel’s possession of
psychiatric evaluation which was not offered or used at
trial without further explanation as to what it contained,
how it could have been used, or what it might have been
offered to prove is not stated with sufficient particularity
to preserve claim for postconviction review).
As we stated before, appellants are required to state with
particularity specific allegations of ineffective assistance of
counsel in the assignments of error section of their brief.
Again, although an allegation claiming that trial counsel was
ineffective in failing to introduce evidence at trial that would
have been beneficial to the defense may be sufficient for us
to conclude the matter cannot be determined on the record, it
lacks the specificity for a district court addressing a motion
for postconviction relief to later determine if the specific mat-
ter had been presented and preserved on direct appeal. Stating
that trial counsel failed to present evidence in the assignment
of error serves as a mere placeholder, and we will not scour
the remainder of the brief searching for greater clarity. This
assigned error is not preserved.

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(c) Failure to Advise Rupp About
Deposition and Ensure His Presence
Rupp next contends that his trial counsel was ineffective for
failing to have Rupp appear during important pretrial stages,
failing to inform him of Clark’s deposition, and failing to
advise Rupp that he could attend Clark’s deposition.
We first note that although Rupp assigns as error that trial
counsel was ineffective in failing to have Rupp present during
important pretrial stages, he argues only that counsel was inef-
fective in failing to have Rupp present at Clark’s deposition.
Therefore, we limit our consideration to whether trial counsel
was ineffective for failing to advise Rupp that he could attend
Clark’s deposition. Rupp asserts that had he been present, he
could have assisted trial counsel in questioning Clark.
But alleging that Rupp could have assisted his counsel in
questioning Clark is simply too broad of a statement for a
later district court to determine whether the specific allega-
tion was preserved. We find this allegation is similar to the
Nebraska Supreme Court’s rejection of a broad allegation in
State v. Hill, 298 Neb. 675, 699, 905 N.W.2d 668, 686 (2018),
governing counsel’s failure to depose “‘numerous other police
officers,’” where the court rejected the assignment for lack of
specificity for failing to disclose what the testimony of those
witnesses would have been, or the general allegation in State
v. Sinkey, 303 Neb 345, 351, 929 N.W.2d 35, 39 (2019), that
trial counsel was ineffective because counsel “only ‘lightly’
cross-examined the detective and the victim’s mother, but
again, he fail[ed] to detail what questions should have been
asked that would have contributed to his defense.”
Because Rupp failed to identify the specific subject matter
he could have contributed to aid counsel in questioning, even
if he attended the deposition, we find this allegation falls into
the category of a mere placeholder that makes it impossible
for a district court on postconviction to determine whether the
specific issue was preserved. Accordingly, this assigned error
is not preserved.

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(d) Failure to Pursue Plea Agreement
Rupp assigns that his trial counsel was ineffective in failing
to adequately pursue a plea agreement with the State. Rupp
states that the plea agreement offered by the State would have
allowed him to plead to a misdemeanor charge in exchange for
the dismissal of the felony charge. However, he asserts that
a week before the trial, when he asked counsel if he should
take the plea, counsel informed him it was too late but did not
approach the State to inquire about whether a plea agreement
could still be made.
The record here is insufficient to address this claim on direct
appeal, and it is stated with sufficient particularity to later
address the specific issue during a postconviction proceeding.
The record does not indicate what, if any, discussions were
had about the plea agreement and its expiration date, or any
indication of whether trial counsel contacted the State about
whether the plea agreement was still available the week prior
to trial. Because the record is insufficient to address this claim,
it is preserved.
(e) Failure to Prepare for Jury Trial
Rupp next assigns that his trial counsel was ineffective in
failing to effectively and adequately prepare for the trial. Once
again, although this allegation is sufficient for an appellate
court to find the matter cannot be resolved on the record, it
provides no detail regarding what his trial counsel failed to do
in preparation specifically as it relates to counsel’s subsequent
performance during Rupp’s trial. The allegation is merely a
placeholder, and it is not preserved.
(f) Failure to Adequately Represent
Rupp During Bond Hearing
Rupp next assigns as error that his trial counsel “failed to
adequately represent [Rupp] in pretrial motions on the issue of
bond.” He states that his counsel failed to correct an inaccurate
statement that Rupp pointed a gun at the alleged victim that
kept his bond amount at $5,000 for 2 months.

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The evidence established that trial counsel filed a motion
for bond review that was heard by the court in January 2024.
During the hearing, counsel argued that Rupp’s bond was set
at $100,000, which sum Rupp could not afford to pay. The
State argued:
Rupp repeatedly went to his cousin’s house even after
being told two to three times to leave. His cousin then
went to a neighbor’s house, um, that neighbor was 54
years-old. The idea was that neighbor was going to be
able to call law enforcement. Her phone wasn’t working,
so she came outside, she had a bat with her. The bat fell
on the ground and, allegedly, . . . Rupp picked up the bat
and hit that neighbor, who doesn’t indicate he had any
connection with. Um, but he hit her multiple times with
that bat. So there is definitely some violence involved
in this.
We find that Rupp’s argument is refuted by the record.
There is nothing in this record to reflect that the State made
any statements during the bond hearing that Rupp was point-
ing a gun at the alleged victim or that the presence of a gun
was the reason the court refused to lower the bond. Therefore,
counsel was not ineffective for failing to correct the alleged
error during the bond hearing. This assignment of error fails.
(g) Failure to Provide Effective
and Zealous Defense
Rupp’s final assignment of error related to the ineffective-
ness of trial counsel is that counsel was ineffective in “fail[ing]
to provide an effective and zealous defense.”
In State v. Turner, 315 Neb. 661, 677, 998 N.W.2d 783, 795
(2024), the Nebraska Supreme Court rejected the appellant’s
assignments of error as insufficiently pled when the appellant
assigned that his defense counsel failed to “‘zealously advocate
for [him]’” and failed to “‘present an adequate defense.’”
Similarly, here, Rupp’s assigned error is insufficiently pled
in that it does not specify trial counsel’s alleged deficiency,

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and we decline to scour the remainder of Rupp’s brief to find
the specificity required. This assignment of error fails.
VI. CONCLUSION
Having found that Rupp’s assigned errors are without merit,
with the exception of the claim that trial counsel was ineffec-
tive for failing to adequately pursue a plea agreement with the
State that has been preserved for postconviction, we affirm
Rupp’s convictions and sentences.
Affirmed.
Bishop, Judge, concurring in part, and in part dissenting.
I respectfully disagree with the majority’s view regarding
how specifically an assigned error must be stated in a direct
appeal before an appellate court may even reach the appellant’s
corresponding argument to determine whether an ineffective
assistance of trial counsel claim has been sufficiently raised.
The majority is reading certain Nebraska Supreme Court cases
to require a higher level of specificity in the assignments of
error section of a brief before it is willing to even consider the
accompanying argument later in the brief. I read those cases
differently.
While I agree that ineffective assistance of trial counsel
assignments of error on direct appeal must specifically allege
how trial counsel performed deficiently, I disagree as to the
level of detail that must be contained in the assigned error
itself. If the alleged deficient performance is identified in the
assigned error and there is a directly corresponding heading
and discussion in the argument section of the appellant’s brief,
there is no need to “scour” the brief to determine whether the
claim has been sufficiently raised. The assigned errors in this
case each alleged deficient performance, and each assigned
error contained identical corresponding headings and fuller
discussion in the argument section of the brief. In my opinion,
each of Rupp’s assigned errors alleging deficient performance
of trial counsel was sufficiently stated to allow us to consider
the corresponding arguments later in the brief to determine

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whether the claim of ineffective assistance of trial counsel
was sufficiently raised. I do not read the cases relied upon by
the majority to require so much specificity in the assignments
of error section of an appellant’s brief that we are unwilling
to even consider the development of the assigned error in the
argument section of the brief. This is especially concerning
when the assigned error is exactly restated in an argument
heading under which the alleged deficiency is more fully
explained, thus avoiding any need to “scour” the brief to ascer-
tain the claim of ineffective assistance.
There is no question that State v. Mrza, 302 Neb. 931, 926
N.W.2d 79 (2019), established a new standard for raising
a claim of ineffective assistance of trial counsel in a direct
appeal. It stated, “We now hold that assignments of error on
direct appeal regarding ineffective assistance of trial counsel
must specifically allege deficient performance, and an appel-
late court will not scour the remainder of the brief in search
of such specificity.” Id. at 935, 926 N.W.2d at 86. In that case,
the Supreme Court determined that the assignment of error
asserting ineffective assistance of trial counsel for “‘fail[ing]
to adequately investigate [the defendant’s] defenses and effec-
tively crossexamine witnesses’” did not meet the specificity
demanded on direct appeal and that the court “should not have
to scour the argument section of an appellant’s brief to extract
specific allegations of deficient performance.” Id.
More recently, the Nebraska Supreme Court addressed an
assigned error that claimed trial counsel was ineffective for
“failing to adequately impeach” a named witness. State v.
Rush, 317 Neb. 622, 653, 11 N.W.3d 394, 423 (2024), modi-
fied on denial of rehearing 317 Neb. 917, 12 N.W.3d 787.
The error assigned in the appellate brief in that case stated
that trial counsel was ineffective for failing to adequately
impeach a key prosecution witness via testimony on her char-
acter for truthfulness. Although the assigned error did not state
the name of the key prosecution witness, nor did it state any
details about how the witness’ impeachment was inadequate or
deficient, the argument section of the appellant’s brief added

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that trial counsel was ineffective by failing to call a named
witness’ “adoptive parents or ‘any other character witness’
to impeach [the witness’] character as to truthfulness.” State
v. Rush, 317 Neb. at 673, 11 N.W.3d at 435. The Supreme
Court found that the claim related to not calling the adoptive
parents as impeachment witnesses was sufficiently raised but
concluded that the record was sufficient to determine that
trial counsel was not constitutionally deficient. However, with
regard to the appellant’s general reference to any other char-
acter witness, the court concluded this aspect of the claim was
not sufficiently raised. It stated:
When the claim of ineffective assistance on direct appeal
involves uncalled witnesses, vague assertions that counsel
was deficient for failing to call ‘witnesses’ are little more
than placeholders and do not sufficiently preserve the
claim. Appellate counsel must give on direct appeal at
least the names or descriptions of any uncalled witnesses
forming the basis of a claim of ineffective assistance of
trial counsel. Such specificity is necessary so that a post-
conviction court may later identify whether a particular
claim of failing to investigate a witness is the same one
that was raised on direct appeal.
Id. at 67374, 11 N.W.3d at 435.
Notably, the assigned error in State v. Rush, supra, referred
only to trial counsel’s failure to inadequately impeach a key
prosecution witness. The name of the witness and the refer-
ence to the witness’ adoptive parents were not provided until
the argument section of the brief. Yet, as noted, the Supreme
Court found the assigned error sufficient to reach the argu-
ment made later in the brief, and together, the court found the
claim was sufficiently raised to address it. In other words, the
deficiency was alleged with some specificity in the assigned
error, but more specific details were provided later in the cor-
responding argument section of the brief to more fully develop
the appellant’s claim of ineffective assistance. Together, the
claim was sufficiently presented.

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The majority also reads State v. German, 316 Neb. 841,
7 N.W.3d 206 (2024), to stand for the proposition that an
assignment of error itself must satisfy the “twoprong test
prescribed” in State v. Abdullah, 289 Neb. 123, 853 N.W.2d
858 (2014). That test requires a claim to be presented with
enough particularity for (1) an appellate court to make a deter-
mination of whether the claim can be decided upon the trial
record and (2) a district court later reviewing a petition for
postconviction relief is able to recognize whether the claim
was brought before the appellate court. See id. I have empha-
sized the word “claim” because, as in State v. Rush, 317 Neb.
622, 11 N.W.3d 394 (2024), modified on denial of rehearing
317 Neb. 917, 12 N.W.3d 787, an assigned error that alleges
deficient performance with some degree of specificity, along
with its corresponding argument providing further details,
may together sufficiently present the claim for consideration
on direct appeal.
Notably, State v. Abdullah, supra, was decided before State
v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019), and the assign-
ment of error in the appellant’s brief in Abdullah was the
vague assertion that the appellant was denied effective assist-
ance of counsel. The Nebraska Supreme Court granted a peti-
tion for further review from this court’s decision in that case.
It stated, “We granted further review in this case to clarify the
necessary specificity of allegations of ineffective assistance of
trial counsel on direct appeal for purposes of avoiding waiver
of such claims in a later postconviction motion.” State v.
Abdullah, 289 Neb. at 128, 853 N.W.2d at 86364. Importantly,
the court stated:
By definition, a claim insufficiently stated is no different
than a claim not stated at all. Therefore, if insufficiently
stated, an assignment of error and accompanying argu-
ment will not prevent the procedural bar accompanying
the failure to raise all known or apparent claims of inef-
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But the level of specificity required in order for an
assignment of error and its accompanying argument to
be ‘sufficient’ must logically depend on the purposes
of the appellate court’s review. . . . We explained that
it is the appellant’s allegations of deficient conduct and
not the appellant’s allegations of prejudice that have
historically guided our review of whether the claims of
ineffective assistance of counsel can be determined upon
the trial record. . . . [A]ppellate counsel need only make
specific allegations of deficient conduct.
We did not elaborate, however, on the level of speci-
ficity of such allegations beyond the general principles
concerning vague and conclusory assignments of error
and arguments. . . . [W]e are more squarely presented
with that question here. We hold in the case of an argu-
ment presented for the purpose of avoiding procedural
bar to a future postconviction action, appellate counsel
must present the claim 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 petition for postconvic-
tion relief to be able to recognize whether the claim was
brought before the appellate court.
Id. at 13233, 853 N.W.2d at 866 (emphasis supplied).
It is important to note that the language emphasized above
refers to looking for specificity in the assignment of error and
accompanying argument (conjunctively) and that the “argu-
ment presented” (not the assigned error alone) must “present
the claim with enough particularity” to meet the twoprong test
indicated. Id. at 133, 853 N.W.2d at 860. The Supreme Court
went on to express concern about the “lack of any specificity
as to who those uncalled witnesses were from the standpoint
of a potential postconviction court’s ability to identify if a
particular failure to call a witness claim is the same one that
was raised on direct appeal.” State v. Abdullah, 289 Neb. 123,
13334, 853 N.W.2d 858, 867 (2014). State v. Rush, supra,

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later explained that appellate counsel must give on direct
appeal at least the names or descriptions of any uncalled wit-
nesses forming the basis of a claim of ineffective assistance
of trial counsel; in that case, the names were provided in the
corresponding argument section of the appellant’s brief, not in
the assigned error.
Also, in State v. German, 316 Neb. 841, 7 N.W.3d 206
(2024), the appellant assigned as error that his trial counsel
was ineffective for not providing the advice necessary for
him to make a meaningful decision about waiving his right
to testify. The Supreme Court determined that the appellant’s
assigned error did not sufficiently allege deficient perform-
ance; however, the court nevertheless also observed that the
assigned error was expanded upon in the argument portion of
the appellant’s brief. Even considering the “expanded asser-
tion,” the court concluded that it failed to “set forth the advice
actually given and claimed to be insufficient, or the specific
advice not given” and therefore lacked the “necessary specific-
ity.” Id. at 873, 7 N.W.3d at 230.
Based upon my reading of the abovenoted cases, I would
have found the following claims of ineffective assistance of
trial counsel sufficiently assigned and argued to preserve a
potential claim for postconviction review: (1) failing to sub-
poena medical personnel who treated Clark, to whom she
told that the blood and stitches on her hands were a result
of her racking the shotgun, which was allegedly inconsistent
with her trial testimony (although Rupp did not provide spe-
cific names of the medical personnel who treated Clark, he
specifically limited the nature of their testimony to alleged
inconsistent statements Clark made to them about her hand
injuries, thus making such witnesses identifiable in any later
postconviction action as being the same witnesses raised in
this direct appeal); (2) failing to introduce a video of Clark
at the hospital during which she allegedly made statements
inconsistent with her trial testimony; and (3) failing to effec-
tively and adequately prepare Rupp for trial by only meeting

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. RUPP
Cite as 33 Neb. App. 562
with him “two times before the trial, each for less than five
minutes,” brief for appellant at 16. In my opinion, these three
claims were presented with enough particularity for this court
to determine (1) whether the claims could be decided upon
the trial record, which they could not, and (2) whether a dis-
trict court later reviewing a petition for postconviction relief
would be able to recognize whether the claim was brought
before the appellate court, which it certainly could. See State
v. Abdullah, supra. Therefore, as to the majority’s decision as
to these three claims, I dissent.
As to the remaining claims of ineffective assistance of trial
counsel, although in some instances for different reasons,
I concur with the majority’s ultimate determinations. I also
concur with the remainder of the majority’s opinion.