State v. Gonzalez

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GONZALEZ
Cite as 32 Neb. App. 763
State of Nebraska, appellee, v.
Ashley L. Gonzalez, appellant.
___ N.W.3d ___
Filed April 2, 2024. 	No. A-23-475.
1. Appeal and Error. In the absence of plain error, where an issue is
raised for the first time in an appellate court, it will be disregarded inas-
much as a lower court cannot commit error in resolving an issue never
presented and submitted to it for disposition.
2. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
3. ____: ____. All the jury instructions must be read together, and if,
taken as a whole, they correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
4. Trial: Jury Instructions: Pleadings: Evidence: Appeal and Error.
Failure to object to a jury instruction after it has been submitted to coun-
sel for review precludes raising an objection on appeal absent plain error
indicative of a probable miscarriage of justice. Nonetheless, whether
requested to do so or not, a trial court has the duty to instruct the jury on
issues presented by the pleadings and the evidence. Because of this duty,
the trial court, on its own motion, must correctly instruct on the law.
5. Jury Instructions. Whenever an applicable instruction may be taken
from the Nebraska Jury Instructions, that instruction is the one which
should usually be given to the jury in a criminal case.
6. 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 ele-
ments of the crime beyond a reasonable doubt.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:41 AM CDT

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
7. 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 court’s deter-
mination will not be disturbed.
8. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s 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. 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.
10. ____: ____. 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 counsel’s alleged
deficient performance.
11. 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
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
12. 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.
13. 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.
14. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.
15. ____: ____. To show prejudice from counsel’s deficient performance,
the defendant must demonstrate a reasonable probability that but for

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
counsel’s deficient performance, the result of the proceeding would have
been different.
16. Effectiveness of Counsel: Speedy Trial. When a defendant alleges he
or she was prejudiced by trial counsel’s failure to properly assert the
defendant’s speedy trial rights, the court must consider the merits of the
defendant’s speedy trial rights under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
17. Effectiveness of Counsel. Counsel is not ineffective for failing to make
an objection that has no merit.
18. Effectiveness of Counsel: Appeal and Error. General allegations that
trial counsel performed deficiently or that trial counsel was ineffective
are insufficient to raise an ineffective assistance claim on direct appeal
and thereby preserve the issue for later review.
Appeal from the District Court for Scotts Bluff County: Leo
P. Dobrovolny, Judge. Affirmed.
Sterling T. Huff, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Riedmann, Judge.
I. INTRODUCTION
Ashley L. Gonzalez appeals from her convictions and sen-
tences following a jury trial in Scotts Bluff County District
Court. On appeal, Gonzalez challenges her right to a speedy
trial, the jury instructions, the sufficiency of the evidence, and
the effectiveness of her trial counsel. Following our review, we
affirm the judgment of the district court.
II. BACKGROUND
1. Procedural History
On August 5, 2022, Gonzalez was charged with possession
of a firearm by a prohibited person, a Class ID felony; pos-
session of a controlled substance (methamphetamine), a Class
IV felony; possession of marijuana, 1 ounce or less, an infrac-
tion; and possession of drug paraphernalia, an infraction. The

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
court scheduled the pretrial conference for November 16 and
scheduled trial for the jury term beginning December 5. On
November 4, the State filed a motion to continue because it had
not received drug test results from the Nebraska State Patrol
Crime Laboratory and did not anticipate receiving them before
the pretrial conference date. No hearing date was included in
the motion.
At the hearing on November 16, 2022, Gonzalez’ counsel
orally requested a continuance because Gonzalez’ codefendant
was scheduled for trial in the same jury term, and counsel
believed it would be prejudicial to Gonzalez to have the same
jury panel questioned twice, especially if the codefendant went
to trial first. The court granted the continuance, and as a result,
trial did not begin until April 24, 2023. Because the court
granted Gonzalez’ motion, it did not rule on the State’s motion
for a continuance.
Following the jury trial, Gonzalez was convicted of all
charges. She was sentenced as follows: possession of a fire-
arm by a prohibited person—3 to 3 years’ imprisonment, with
credit for 24 days’ time served; possession of a controlled
substance (methamphetamine)—0 to 1 year’s imprisonment;
possession of marijuana, less than 1 ounce—$300 fine; and
possession of drug paraphernalia—$100 fine. The evidence
presented at trial, as relevant to the assigned errors on appeal,
is as follows.
2. Trial Evidence
On July 23, 2022, Gonzalez was at her residence with her
children and the codefendant, who is her son’s father. He
did not live at the residence with her but would sometimes
spend the night. Officer William Howton, a member of the
Scottsbluff Police Department, was working with a drug task
force that day and was the lead investigator of the group
that served a search warrant on Gonzalez’ residence. Officers
knocked multiple times and announced they were police offi-
cers serving a search warrant; after receiving no response,

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
they entered the residence. Officers secured the residence and
located Gonzalez on the stairs; she was detained. The father
of Gonzalez’ son was in the upstairs bathroom, and after he
refused to exit, police entered the bathroom and detained him.
A baggie with a “crystal-like substance” was found on his
person, and this was placed into evidence and later sent to be
tested at the crime laboratory.
In a closet in the upstairs hallway, officers found a mirror
that had a debit card in Gonzalez’ name and a “white crys-
talline substance” on it. This substance was also sent to be
tested by the crime laboratory. In the same closet, officers
found a revolver handgun. The closet also contained a box of
shotgun shells. In another closet, officers located a shotgun
in a soft case. The shotgun was located behind some clothes
in the closet. Throughout the house, the officers also found a
glass pipe with white residue that appeared to be a metham-
phetamine pipe; a baggie with a green leafy substance that
appeared to be marijuana; another methamphetamine pipe;
two small, self-sealed baggies with white residue; and a glass,
multicolored smoking device believed to be used for smoking
methamphetamine.
Gonzalez was arrested, placed in the back of a patrol car,
and interviewed by Howton after waiving her Miranda rights.
During the interview, Gonzalez stated that she was storing
the firearms for her father, that he used to stay with her, and
that she should not have stored them but forgot they were
there. She also stated that she had smoked methamphetamine
that day.
When asked at trial if Gonzalez’ son’s father had claimed
ownership of any of the drugs seized, Howton testified that
he did not. Howton also confirmed that neither of the guns,
nor the box of shotgun shells, were tested for fingerprints or
DNA to determine who had handled them. However, Howton
entered the serial numbers from the guns into the “ATF data-
base,” but he could not recall if he received any results.

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
Gonzalez testified that when Howton interviewed her, she
was “confused and scared” and did not know why she was
being arrested. At trial, she denied having ever seen the fire-
arms in her house prior to the search and stated she first saw
them when the police carried them down the stairs to place
them into evidence; she just assumed they belonged to her
father because he had been staying in her home. Gonzalez
testified that she had not spoken with her father about the
firearms and that he had not brought firearms to her home
before. Gonzalez also testified that at the time, she did not
know that as a convicted felon, she could not possess fire-
arms. She confirmed that when Howton interviewed her, she
told him that she had smoked methamphetamine that day, spe-
cifically in the upstairs bathroom; she confirmed this is where
her son’s father was found. Gonzalez also stated that the debit
card found on the mirror was a card that she no longer used.
She denied ownership of the methamphetamine pipes found
in the home.
Gonzalez’ father testified that the firearms belonged to him
and that he had placed them in the closets sometime in October
2021 when Gonzalez was not at home. He stated that while
he was in the process of moving, his then 5-year-old child
was very curious about them, so he took them to Gonzalez’
home to prevent his child from accessing them. He testified
that he “forgot” that the firearms were still there. Gonzalez’
father testified that he never spoke with Gonzalez about the
firearms being in her home. He confirmed that the gun cases
found with the firearms were both from a company where he
had previously worked and both had that company’s logo on
them. He testified that he did not know that Gonzalez was a
felon and could not have firearms. Gonzalez was found guilty
of all charges.
3. Motion for New Trial
After retaining new counsel, Gonzalez filed a motion for
new trial and motion to set aside judgment. At a hearing on
June 16, 2023, Gonzalez asserted she was entitled to a new

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
trial because the jury should have been instructed that “a
defendant’s mere presence is not enough” to prove posses-
sion, that the jury should have been instructed on attempted
possession of a firearm by a prohibited person and attempted
possession of methamphetamine, and that her son’s father, who
was in her home that day, should have been called as a wit-
ness, as requested by Gonzalez. In an affidavit in support of
the motion, Gonzalez also averred that she was unaware the
State had requested a trial continuance due to the delayed drug
test results and that she was unaware that she was waiving her
right to a speedy trial when her trial counsel requested a con-
tinuance. The district court denied the motion.
Gonzalez appeals.
III. ASSIGNMENTS OF ERROR
Gonzalez assigns, consolidated, reordered, and restated,
that (1) her statutory speedy trial rights were violated; (2) the
district court erred in failing to properly instruct the jury; (3)
the evidence was insufficient to convict her of possession of a
firearm by a prohibited person; (4) the district court erred in
denying her motion for new trial and motion to set aside judg-
ment; and (5) she received ineffective assistance of counsel
by trial counsel’s (a) requesting an improper and unnecessary
continuance and failing to file a motion for absolute dis-
charge, (b) failing to file, request, and offer appropriate jury
instructions and failing to object to the instructions given, (c)
failing to make a motion for directed verdict at the close of
the State’s case and renew the motion at the end of the case,
(d) failing to conduct witness examinations of defense wit-
nesses in a clear and concise manner, and (e) failing to make
a logical and informative closing argument on the issue of
constructive possession.
IV. ANALYSIS
1. Statutory Speedy Trial Right
[1] Gonzalez argues her case should not have gone to
trial because the trial occurred outside the 6-month period

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
provided by Neb. Rev. Stat. § 29-1207 (Reissue 2016). She
argues she was not advised that the continuance requested
by trial counsel in November 2022 would result in a waiver
of her statutory speedy trial rights. However, no motion for
absolute discharge based upon a violation of speedy trial
rights was ever filed with the district court. In the absence
of plain error, where an issue is raised for the first time in
an appellate court, it will be disregarded inasmuch as a lower
court cannot commit error in resolving an issue never pre-
sented and submitted to it for disposition. State v. Munoz, 303
Neb. 69, 927 N.W.2d 25 (2019). Because Gonzalez’ counsel
requested the continuance, the delay did not count against the
speedy trial clock, and a motion for absolute discharge would
have been futile. The district court did not err in failing to
dismiss the information against Gonzalez for a violation of
her speedy trial rights because the issue was never raised;
therefore, no plain error exists.
Gonzalez also assigns that her trial counsel was ineffec-
tive in failing to file a motion for absolute discharge; we will
address that issue below in connection with her other ineffec-
tive assistance of counsel claims.
2. Jury Instructions
(a) Standard of Review
[2,3] Whether jury instructions are correct is a question
of law, which an appellate court resolves independently of
the lower court’s decision. State v. Esch, 315 Neb. 482, 997
N.W.2d 569 (2023). All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported
by the pleadings and the evidence, there is no prejudicial error
necessitating reversal. Id.
(b) Analysis
[4] Gonzalez assigns that the district court erred in fail-
ing to properly instruct the jury. At trial, Gonzalez made no

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
objection to the jury instructions, nor did she propose any
alternate instructions. Failure to object to a jury instruction
after it has been submitted to counsel for review precludes
raising an objection on appeal absent plain error indicative
of a probable miscarriage of justice. State v. Brooks, 23 Neb.
App. 560, 873 N.W.2d 460 (2016). Nonetheless, whether
requested to do so or not, a trial court has the duty to instruct
the jury on issues presented by the pleadings and the evidence.
Id. Because of this duty, the trial court, on its own motion,
must correctly instruct on the law. Id.
Gonzalez argues the district court erred in its instruction
defining the word “possession.” The instruction given by the
district court stated, “Possession of an object means either
knowingly having it on one’s person or knowing the object is
present and having control over the object. Proximity standing
alone is insufficient to prove possession.” (Emphasis omitted.)
Gonzalez argues the district court should have also included
the statement “‘A defendant’s mere presence is not enough.’”
Brief for appellant at 28. We disagree.
[5] The language utilized by the district court is taken in
part from the Nebraska pattern jury instructions, which pro-
vide the definition for the term “possession” as “either know-
ingly having it on one’s person or knowing of the object’s
presence and having control over the object.” NJI2d Crim.
4.2. Whenever an applicable instruction may be taken from
the Nebraska Jury Instructions, that instruction is the one
which should usually be given to the jury in a criminal case.
State v. Valentine, 27 Neb. App. 725, 936 N.W.2d 16 (2019).
In addition to the language of the pattern instruction, the
district court further included the statement that “[p]roximity
standing alone is insufficient to prove possession.”
In State v. Valentine, 27 Neb. App. at 746, 936 N.W.2d at
31, the defendant requested that the jury instruction regarding
possession include the statement that “‘[p]roximity, standing
alone, is insufficient.’” The district court refused to give the
proffered instruction and instead used the language of the

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
pattern instruction. On appeal, we affirmed, finding that the
district court properly instructed the jury on the definition of
the term “possession” by using the pattern instruction.
Here, the district court included language that informed
the jury that proximity to an object alone was not sufficient
to prove possession. Gonzalez argues that it should have also
informed the jury that “‘[a] defendant’s mere presence is not
enough.’” Brief for appellant at 28. To the extent there is any
distinction between the two, we find no error. The district
court was not required to instruct beyond the language of the
pattern instruction. Gonzalez cannot show she was prejudiced
by the court’s refusal to further instruct that mere presence
is not enough, especially when it included the additional lan-
guage regarding proximity. See, also, State v. Castellanos,
26 Neb. App. 310, 918 N.W.2d 345 (2018) (affirming trial
court’s use of pattern instruction and its refusal to include
language that defendant’s mere presence was insufficient to
prove possession).
The jury instructions, read together and taken as a whole,
correctly stated the law, were not misleading, and adequately
covered the issues supported by the pleadings and the evi-
dence. The district court did not err in instructing the jury.
3. Sufficiency of Evidence
(a) Standard of Review
[6] 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. Allen, 314 Neb. 663, 992
N.W.2d 712 (2023), modified on denial of rehearing 315 Neb.
255, 995 N.W.2d 446.
(b) Analysis
Gonzalez argues the evidence was insufficient to sustain her
conviction of possession of a firearm by a prohibited person

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
because there was no testimony that the firearms seized could
expel a projectile. She relies upon the statutory definition of
firearm, which states: “Firearm means any weapon which is
designed to or may readily be converted to expel any projec-
tile by the action of an explosive or frame or receiver of any
such weapon.” Neb. Rev. Stat. § 28-1201 (Reissue 2016). She
implies that because there was no evidence that a “test fire”
was done by any crime laboratory technician, nor was there
testimony from anyone that the items seized were assembled
and in good enough condition to expel a projectile, the State
failed to prove that the items were firearms. Brief for appellant
at 36. We disagree.
Photographs of the shotgun and the revolver were entered
into evidence. Howton testified that he entered the serial
numbers of both firearms into the “ATF database,” from
which it could be inferred that both were manufactured fire-
arms with serial numbers. A box of shotgun shells was found
in the home, though admittedly not in the same closet as the
shotgun itself. Gonzalez’ father testified that the reason he
moved the firearms to Gonzalez’ home was that he was wor-
ried about the level of interest his young child was showing
in the firearms. From this, the jury could conclude that the
items seized were designed, or could be readily converted, to
expel projectiles.
Furthermore, to be convicted of possession of a firearm by
a prohibited person, the State need not prove that the firearm
is operable. See State v. Lee, 195 Neb. 348, 237 N.W.2d 880
(1976). The Nebraska Supreme Court stated:
[E]vidence of possession of a revolver or gun of prohib-
ited description, which is in apparently good condition
and has the characteristics and appearance commonly
understood to be those of the firearm it purports to be,
is prima facie evidence sufficient to go to the jury in
a prosecution [for unlawful possession of a firearm by
a felon].
Id. at 350, 237 N.W.2d at 882.

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
The evidence presented, when viewed in the light most
favorable to the State, was such that a rational trier of fact
could conclude that the items seized from Gonzalez’ house
were firearms. Because Gonzalez does not argue the evidence
was insufficient to find that she possessed the firearms or that
she was a felon, we do not address the remaining elements of
the crime. See Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2022).
The evidence was sufficient to support the conviction.
4. Motion for New Trial
(a) Standard of Review
[7] 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 court’s determination will not
be disturbed. State v. Allen, 314 Neb. 663, 992 N.W.2d 712
(2023), modified on denial of rehearing 315 Neb. 255, 995
N.W.2d 446.
(b) Analysis
Gonzalez assigns that the district court erred in denying her
motion for new trial and motion to set aside judgment. Her
assigned error on this issue states:
This appeal is largely restricted to the issues regard-
ing Count I, being a Prohibited Person in Possession of
a Firearm and the conviction for that offense. The Court
erred in failing to grant [Gonzalez’] Motion for New
Trial and Motion to Set Aside Judgment. Counts II, III,
and IV are preserved for violations of speedy trial and
for ineffective assistance of counsel for failure to protect
[Gonzalez’] rights to a speedy trial.
However, her argument is limited to the jury instruction
regarding the definition of the word “possession.” As previ-
ously discussed, we find no error in the jury instruction given;
therefore, the district court did not err in denying the motion
for new trial and motion to set aside judgment on this issue.
Because Gonzalez does not argue any of the other bases con-
tained in her motion, we need not discuss them.

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STATE v. GONZALEZ
Cite as 32 Neb. App. 763
5. Ineffective Assistance of Counsel
[8] Gonzalez enumerates several ways in which she believes
her trial counsel was ineffective. We first set forth the general
framework for our analysis and then address each claim.
When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct
appeal any issue of trial counsel’s 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. State v. Turner, 315
Neb. 661, 998 N.W.2d 783 (2024).
(a) Standard of Review
[9,10] Whether a claim of ineffective assistance of counsel
may be determined on direct appeal is a question of law. Id. 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.
[11,12] 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. Id. 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.
(b) Analysis
[13-15] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668, 104 S.

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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. Turner, 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. Id. To show prejudice from
counsel’s deficient performance, the defendant must demon-
strate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been
different. Id.
(i) Continuance and Speedy Trial
[16] Gonzalez assigns that trial counsel was ineffective in
requesting an unnecessary continuance and in failing to pro-
tect her speedy trial rights. When a defendant alleges he or
she was prejudiced by trial counsel’s failure to properly assert
the defendant’s speedy trial rights, the court must consider the
merits of the defendant’s speedy trial rights under Strickland
v. Washington, supra. State v. Davis, 31 Neb. App. 445, 982
N.W.2d 261 (2022).
Gonzalez 	argues 	that 	trial 	counsel 	was 	ineffective 	in
requesting the November 16, 2022, continuance. The State
had filed a motion to continue trial on November 4 because
it had not yet received the results of the drug testing of the
substances seized. The testing results utilized at trial were
not issued until December 21. Gonzalez argues that if trial
counsel had not filed a motion to continue and had instead
objected to the State’s motion to continue, the speedy trial
timeline would have continued to run against the State. While
not specifically framed in this manner, Gonzalez also appears
to argue that because the test results were not received until
December 21, after the trial had originally been scheduled, the
State would not have had evidence to support the conviction
for possession of a controlled substance. For the reasons set
forth below, even if counsel had not requested a continuance,

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there is not a reasonable probability that the outcome would
have been different.
First, § 29-1207(4)(c)(i) provides that the period of delay
from a continuance granted at the request of the prosecuting
attorney shall be excluded in computing the time for trial if
the continuance is granted because of the unavailability of
evidence material to the State’s case, when the prosecuting
attorney has exercised due diligence to obtain such evidence
and there are reasonable grounds to believe that such evidence
will be available at a later date. The district court could have
granted the State’s continuance and found that it fell within
the provisions of § 29-1207(4)(c)(i); thus, the time may not
have counted against the State. Additionally, although the
test results were not available until December 21, 2022, for
the April 2023 trial, this does not mean they could not have
been expedited had trial not been continued. At the hearing on
Gonzalez’ motion for new trial, the State said that if its con-
tinuance had not been granted, it would have requested that the
crime laboratory have the results by the necessary deadline,
which it had done at least “a half dozen times” in the past.
Therefore, the State may have been able to obtain the results
prior to the start of the original December 2022 trial date.
Because Gonzalez cannot establish prejudice as a result of her
trial counsel’s request for a continuance, this claim fails.
Gonzalez also assigns that trial counsel did not need to
request the continuance for the reason he stated, specifically
that he did not want her to go to trial with the same jury
panel as her codefendant. She argues that counsel could have
requested that a special jury panel be summoned or that the
existing panel be divided into two groups. However, because
we have already determined that Gonzalez cannot establish
that she was prejudiced by trial counsel’s request for a continu-
ance, the reasons for his request do not change our evaluation
of this claim.
Gonzalez argues that because the information against her
was filed on August 5, 2022, the speedy trial clock ran on

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February 4, 2023 (calculated by adding 6 months and sub-
tracting 1 day). And because jury selection did not begin until
April 24, 2023, she argues she never should have gone to trial.
However, this argument is premised on the exclusion of the
time period due to trial counsel’s request for a continuance.
But exclusion of this time period is inappropriate because it
was requested by her counsel.
Recognizing that the continuance time period was properly
excluded, Gonzalez argues that her “trial counsel caused the
error.” Brief for appellant at 23. As we explained above, how-
ever, the court could have granted the State’s motion, which
was based on the unavailability of material evidence, and still
excluded that time period, or the laboratory results may have
been expedited. Had that occurred, and Gonzalez went to trial
in December 2022 as originally planned, based on this record,
we cannot say the result would have been different.
We find the record is sufficient to address this claim on
direct appeal and conclude that Gonzalez cannot show a
reasonable probability that had counsel not requested the
November 16, 2022, continuance, or had he filed a motion for
absolute discharge, the result of the proceeding would have
been different. This claim fails.
(ii) Jury Instructions
Gonzalez assigns that trial counsel was ineffective in fail-
ing to file, request, and offer appropriate jury instructions. As
previously discussed, the district court did not err in instruct-
ing the jury on possession. All that was required was the
pattern jury instruction, which the court gave, and the court
added language to convey that mere proximity was insuf-
ficient to prove possession. We find the record is sufficient
to address this claim on direct appeal and conclude that trial
counsel did not perform deficiently in not filing, requesting,
or offering the additional sentence to be added to the posses-
sion instruction.
Gonzalez assigns that trial counsel was ineffective in fail-
ing to request a step instruction be given on the charge of

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STATE v. GONZALEZ
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possession of a firearm by a prohibited person so that the jury
would have had the option of convicting her of attempted pos-
session. Gonzalez’ allegation of deficient conduct is that the
proposed attempt instruction comes from the Nebraska pat-
tern jury instructions, is commonly used by defense counsel,
and in addition to the proposed possession instruction, would
have made a difference. However, Gonzalez makes no argu-
ment that the evidence supports an instruction on attempted
possession of a firearm by a prohibited person. In fact, it runs
contrary to her defense that she did not possess the firearms
because she did not know they were present in her house. As
explained by the Nebraska Supreme Court in relation to pos-
session of a controlled substance:
To be guilty of an attempt, a person must intentionally
engage in conduct constituting a substantial step toward
the completion of the underlying crime. An attempted
crime involves intent, the mens rea, and conduct that is
a substantial step toward the completed crime, the actus
reus. But if [the defendant] had the intent to possess or
the intent to attempt to possess the methamphetamine,
then he would be guilty of actual possession, not just
attempted 	possession, 	because 	the 	methamphetamine
was under his control. The facts in this case do not sup-
port the conclusion that [the defendant] could be guilty
of attempted possession but not possession.
State v. Rocha, 295 Neb. 716, 762, 890 N.W.2d 178, 211
(2017) (emphasis in original).
Based on the evidence presented at trial, an attempt instruc-
tion was not warranted; therefore, trial counsel was not inef-
fective in failing to offer one.
[17] Gonzalez also assigns that trial counsel was inef-
fective in failing to object to the jury instructions given. As
previously discussed, the district court correctly instructed
the jury, and an objection would have had no merit. Counsel
is not ineffective for failing to make an objection that has no
merit. State v. Allen, 314 Neb. 663, 992 N.W.2d 712 (2023),

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modified on denial of rehearing 315 Neb. 255, 995 N.W.2d
446. We find the record sufficient to address this claim on
direct appeal and conclude that Gonzalez has failed to show
deficient performance.
(iii) Motion for Directed Verdict
Gonzalez assigns that trial counsel was ineffective in fail-
ing to make a motion for directed verdict at the close of the
State’s case. Specifically, she states that there was no testi-
mony as to the design or functional capability of the firearms
at issue to expel projectiles. We have already discussed that
the evidence was sufficient to support the conviction, and
neither a motion for directed verdict nor a motion to renew
such a motion would have had merit. We find the record is
sufficient to address this claim on direct appeal and con-
clude that trial counsel was not ineffective in failing to make
such motions.
(iv) Examination of Witnesses
[18] Gonzalez assigns that trial counsel failed to conduct
witness examinations in a clear and concise manner. She
makes one specific allegation of deficient performance, argu-
ing that defense counsel did not know the proper names of the
individuals involved. Aside from this, she makes no specific
citation to the record of trial counsel’s questioning of a wit-
ness that was deficient. She does not specify questions that
were not asked, but should have been, or that were asked, but
should not have been. When making an ineffective assistance
of counsel claim on direct appeal, allegations of prejudice are
not required. State v. Bedford, 31 Neb. App. 339, 980 N.W.2d
451 (2022). However, a defendant must make specific allega-
tions of the conduct that he or she claims constitutes defi-
cient performance. Id. General allegations that trial counsel
performed deficiently or that trial counsel was ineffective are
insufficient to raise an ineffective assistance claim on direct
appeal and thereby preserve the issue for later review. Id.

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Gonzalez has failed to make specific allegations of deficient
performance, and we will not further address this allegation.
(v) Closing Argument
Gonzalez assigns that trial counsel failed to make a logical
and informative closing argument on the issue of construc-
tive possession. She argues that counsel did not have a logical
and consistent theory of defense, vacillating among differing
themes. However, as discussed above, the evidence presented,
viewed in the light most favorable to the State, showed that
Gonzalez knowingly possessed firearms. The jury heard both
Gonzalez and her father testify that Gonzalez did not know
the weapons were in her home. However, they also heard
Gonzalez’ admission made in the back of the patrol car in
which she admitted that she was storing the firearms for her
father, implying that she knew of their presence in her home.
As evidenced by the verdicts, the jury believed her admission
made on the day the search warrant was executed. Gonzalez
cannot show a reasonable probability that if trial counsel had
a different theory in closing arguments, the result of the pro-
ceeding would have been different. The record is sufficient
to address this claim on direct appeal, and we conclude that
Gonzalez cannot show prejudice.
V. CONCLUSION
We affirm the convictions and sentences of the district court
and reject Gonzalez’ claims of ineffective assistance of trial
counsel as either insufficiently pled or without merit.
Affirmed.