                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         STATE V. WARE


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                V.

                                   SCOTT L. WARE, APPELLANT.


                            Filed October 24, 2017.    No. A-16-1168.


       Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge.
Affirmed in part, and in part vacated and remanded for resentencing.
       Joseph Kuehl, of Lefler & Kuehl Law, for appellant.
       Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.


       MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
       BISHOP, Judge.
                                       I. INTRODUCTION
        Scott L. Ware was convicted of terroristic threats, a Class IIIA felony, and use of a deadly
weapon to commit a felony, a Class IC felony, after a jury trial in the Douglas County District
Court. Ware now appeals his convictions and sentences. Although we affirm Ware’s convictions
and his sentence for use of a deadly weapon to commit a felony, we vacate Ware’s sentence for
terroristic threats and remand the cause to the district court for resentencing in accordance with
this opinion.
                                       II. BACKGROUND
       Ware’s convictions were the result of an incident that took place on November 18, 2015.
The victim, Misty Parker, made a report to police that Ware pulled a gun on her and threatened
her as she was walking to pick up her daughter from school. Ware was initially charged by



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information with terroristic threats under Neb. Rev. Stat. § 28-311.01 (Reissue 2016). Before trial,
an amended information added a charge of use of a deadly weapon (firearm) to commit a felony
under Neb. Rev. Stat. § 28-1205 (Reissue 2016). A jury trial was held in September 2016.
        Parker testified that between 3:30 and 4 p.m. on November 18, 2015, she was walking to
pick up her daughter from elementary school. She was stopped at a crosswalk when she heard
someone call her name. She looked up and saw Ware alone in a minivan. Parker recognized Ware’s
face immediately, having known him for years as a friend of her fiancé’s, and because she and
Ware had a previous sexual encounter (after which she and Ware’s relationship soured, and there
was “no speaking, no nothing,” which was still the case as of November 18).
        According to Parker, she looked up and saw Ware, and he yelled at her to “check West and
something about a girl named Puffy,” which she interpreted to imply infidelity on the part of her
fiancé (West) with a woman named Puffy. In response, Parker yelled profanities at Ware and
“flipped him the finger.”
        After the initial interaction, Parker said she continued walking up the street on the way to
the school. Ware turned the van around and was driving next to Parker as she walked. She could
hear him yelling something undecipherable, and she continued to “flip him off” and walk away.
When they reached the corner of the block, Parker turned and proceeded down the sidewalk
directly toward the school. Ware turned through the intersection and then drove his van across the
lanes and up onto the curb in front of Parker. His left hand was on the steering wheel and his right
hand was temporarily hidden from Parker’s sight. Ware then pulled out a pistol and aimed it out
of the driver’s side window at Parker’s head. The gun was between one and two feet from her head
when Ware looked at her and said, “I have one for you and I have one for West. Watch.”
        Parker was terrified and ran to the elementary school, where she vomited in the bathroom.
After regaining her composure, she alerted the principal as to what had happened, and the police
were called. Officers arrived a few minutes later to interview Parker and she described the events,
identified Ware, and gave them a description of the vehicle, the pistol, and Ware’s clothing. Parker
described the pistol as being small with a black handle and some silver. She said Ware was wearing
a dark shirt, a black leather coat, and a brown golf hat.
        Officer Matt McDonald testified he and his partner initially proceeded to Ware’s
apartment, where Officer Andrew Ramsay and his partner had already arrived in response to
Parker’s call to the police. Seeing Officer Ramsay and his partner were already at Ware’s
apartment, Officer McDonald and his partner went to the school to interview Parker.
        Officer Ramsay testified he and his partner were the first to arrive at Ware’s apartment.
After the other officers went to the school to interview Parker, Officer Ramsay and his partner
knocked on Ware’s door. Ware answered, and after the officers explained they were there in
response to Parker’s call, Ware gave written consent to a search of his apartment.
        After interviewing Parker, Officer McDonald and his partner returned to Ware’s apartment,
where Officer Ramsay and his partner were still conducting a search. Ware was wearing clothing
consistent with the description Parker had provided earlier in her interview at the school. Officer
McDonald and his partner took Ware into custody for questioning at police headquarters
downtown. Ware allowed Officer Ramsay and his partner to stay and continue searching his
apartment. After receiving a phone call from the Criminal Investigation Bureau instructing them



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to search for a black jacket, Officer Ramsay and his partner searched Ware’s bedroom and found
a black leather jacket with a .32 caliber revolver in the pocket.
        Upon discovering the weapon, Officer Ramsay called the Crime Lab to photograph and
collect the evidence. Krystal Kirwin, a Crime Lab technician, went to Ware’s home and took
photographs of the evidence seized. She testified at trial as to the authenticity of the photographs
of Ware’s apartment and chain of custody of the physical evidence, including the .32 caliber
revolver and ammunition admitted into evidence at trial.
        After the State rested, the defense made a motion for a directed verdict, which was denied.
The defense then proceeded to call its only witness, Nancy Carson. Carson testified that on the
date of the incident, she spent most of the afternoon with Ware, with whom she has had an
on-and-off romantic relationship for years. She acknowledged Ware was driving a van that day,
but claimed he was wearing a pink and white long sleeved shirt with a burgundy vest over it and a
tan jacket. Exhibit 28, a photograph of the tan jacket, was received into evidence without objection.
The police found the jacket in a laundry basket in Ware’s living room during their search.
        After the close of all evidence, the defense renewed its motion for a directed verdict, which
the district court denied. The jury convicted Ware of both charges. The district court sentenced
Ware to 5 to 7 years’ imprisonment for his use of a deadly weapon to commit a felony, and 2 years’
imprisonment for terroristic threats. Ware now appeals.
                                 III. ASSIGNMENTS OF ERROR
        Ware assigns that (1) the trial court erred in overruling his motion for a directed verdict
and motion to dismiss for insufficient evidence; (2) the trial court erred by imposing excessive
sentences; and (3) his trial counsel was ineffective for failing to properly investigate the scene of
the incident or interview witnesses, and for failing to adequately demonstrate the exculpatory
nature of Exhibit 28.
                                  IV. STANDARD OF REVIEW
       Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the
evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal
conviction, 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, and a conviction will be
affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed
most favorably to the State, is sufficient to support the conviction. State v. Jedlicka, 297 Neb. 276,
900 N.W.2d 454 (2017).
       An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016).
An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. State
v. Hunnel, 290 Neb. 1039, 863 N.W.2d 442 (2015).
       Plain error may be found on appeal when an error, plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the




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integrity, reputation, and fairness of the judicial process. State v. Kantaras, 294 Neb. 960, 885
N.W.2d 558 (2016).
        Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017). 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. Id.
                                           V. ANALYSIS
                                  1. MOTION FOR DIRECTED VERDICT
     Ware contends the trial court erred by “overruling [his] motion for a directed verdict and
motion to dismiss for insufficient evidence.” Brief for appellant at 10. Ware moved the court for a
directed verdict at the close of the State’s case, put on evidence after the first motion was denied,
and then renewed his motion for a directed verdict after the close of the case. By putting on
evidence after the first motion was denied, Ware waved his right to challenge the denial of that
first motion. State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016). However,
        [w]hen a defendant makes a motion at the close of the State's case in chief and again at the
        conclusion of all the evidence, it is proper to assign as error that the defendant's motion for
        directed verdict made at the conclusion of all the evidence should have been sustained.

State v. Duncan, 293 Neb. 359, 368-69, 878 N.W.2d 363, 372-73 (2016). Therefore, Ware properly
preserved the right to challenge the denial of his renewed motion for a directed verdict.
         In a criminal case, a court can direct a verdict only when there is a complete failure of
evidence to establish an essential element of the crime charged or the evidence is so doubtful in
character, lacking probative value, that a finding of guilt based on such evidence cannot be
sustained. State v. Duncan, supra. If there is any evidence which will sustain a finding for the party
against whom a motion for directed verdict is made, the case may not be decided as a matter of
law, and a verdict may not be directed. Id.
         Ware’s assignment of error also challenges the sufficiency of the evidence. When
challenging the sufficiency of the evidence supporting a 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. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017). Because finding each essential
element of a crime could have been established beyond a reasonable doubt must necessarily mean
the State did not completely fail to put on evidence for each of those essential elements (the
standard for a directed verdict discussed above), we address the sufficiency of the evidence
standard first.
         Ware was convicted under § 28-311.01 and § 28-1205. Section 28-311.01(1)(a) states: “A
person commits terroristic threats if he or she threatens to commit any crime of violence . . . with
the intent to terrorize another.” Terroristic threats is a Class IIIA felony. § 28-311.01(2). Section
§ 28-1205(1)(a) states: “Any person who uses a firearm . . . to commit any felony which may be



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prosecuted in a court of this state commits the offense of use of a deadly weapon to commit a
felony.”
         Ware argues there was insufficient evidence to support his convictions because the State
did not produce additional witnesses or “any other scientific evidence that may have existed” and
because he perceives inconsistencies in Parker’s testimony. Brief for appellant at 10. However, his
arguments attack the persuasiveness of the evidence put on by the State, rather than identifying
any essential element of the crimes committed that lacks evidentiary support.
         We find the evidence at trial was sufficient for a rational trier of fact to conclude each of
the essential elements of Ware’s crimes were proven beyond a reasonable doubt. Parker testified
Ware pointed a pistol at her and said “I have one for you and I have one for West. Watch.” She
interpreted Ware’s comment to mean he was going to shoot her. Ware’s actions scared Parker
enough to cause her to run away from the scene to the safety of the school, where she vomited in
the bathroom because she was so distressed by Ware’s threat. The officer who interviewed her
testified she was visibly shaking, flustered, and cried a few times during the interview. Officers
found a van outside of Ware’s house, and a pistol in the pocket of a coat in his house. All three
items matched the descriptions Parker gave the officers at the school.
         Based on the evidence outlined above, a rational fact finder could find beyond a reasonable
doubt that Ware used a pistol to intentionally terrorize Parker by threatening her, thereby meeting
each of the elements in §§ 28-311.01 and 28-1205. Accordingly, there was sufficient evidence to
support both of the convictions, and Ware’s renewed motion for a directed verdict was necessarily
properly denied.
                                             2. SENTENCES
       Having found sufficient evidence to support Ware’s convictions, we now consider his
argument that his sentences were excessive. We note Ware’s offenses occurred after August 30,
2015, the effective date of 2015 Neb. Laws, L.B. 605, which changed the classification of certain
crimes and made certain amendments to Nebraska’s sentencing laws.
                          (a) Plain Error of Terroristic Threats Sentence
        The State asserts the district court committed plain error in its sentence for the terroristic
threats charge because it imposed a determinate, rather than an indeterminate sentence as required
by law. We agree. A sentence that is contrary to the court’s statutory authority is an appropriate
matter for plain error review. State v. Kantaras, supra.
        The district court sentenced Ware to a period of 2 years’ imprisonment for terroristic
threats, a Class IIIA felony. A Class IIIA felony is punishable by up to 3 years’ imprisonment and
18 months’ post-release supervision, a $10,000 fine, or both; there is no minimum sentence for
imprisonment, but 9 months’ post-release supervision is required if imprisonment is imposed. See
Neb. Rev. Stat. § 28-105 (Reissue 2016). Additionally, Neb. Rev. Stat. § 29-2204.02(4) (Reissue
2016) states:
                For any sentence of imprisonment for a Class III, IIIA, or IV felony for an offense
        committed on or after August 30, 2015, imposed consecutively or concurrently with . . .
        (b) a sentence of imprisonment for a Class I, IA, IB, IC, ID, II, or IIA felony, the court



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       shall impose an indeterminate sentence within the applicable range in section 28-105 that
       does not include a period of post-release supervision . . .

As discussed above, Ware was convicted of a Class IIIA felony for terroristic threats, and a
Class IC felony for use of a weapon to commit a felony, with the sentences to run consecutively.
The combination of those sentences falls under § 29-2204.02(4)(b), requiring an indeterminate
sentence for the terrorist threats felony conviction. Accordingly we vacate Ware’s sentence for
terroristic threats and remand the cause to the district court for resentencing consistent with
§ 29-2204.02(4). See State v. Chacon, 293 Neb. 203, 894 N.W.2d 238 (2016) (vacating
defendant’s sentence and remanding cause for resentencing consistent with § 29-2204.02(4)).
                                       (b) Excessive Sentence
        Because of the plain error in the terroristic threats sentence, we need only address Ware’s
excessive sentence claim related to his conviction for use of a deadly weapon to commit a felony.
The district court sentenced Ware to 5 to 7 years’ imprisonment for this conviction under
§ 28-1205 (a Class IC felony), less a credit for 91 days served. A Class IC felony is punishable by
a mandatory minimum 5 years’ imprisonment, and a maximum of 50 years’ imprisonment.
§ 28-105. A person convicted of a felony for which a mandatory minimum sentence is prescribed
shall not be eligible for probation. Id. The district court’s sentence was not only within the statutory
limits, but was at the very bottom of the permissible sentencing range.
        Notably, in his brief, Ware admits “the trial court gave [him] a sentence that was on the
low end of the spectrum for [his] two convictions.” Brief for appellant at 8. However, he then
claims “the trial court abused its discretion when it added the four years” to the mandatory
minimum five year sentence. Id. Presumably “four years” is a reference to the two years for the
terroristic threats conviction, and the additional two year range for the use of a deadly weapon to
commit a felony conviction. He supports his argument solely by pointing out that the “trial court
acknowledged that, given [his] previous life circumstances . . . , [Ware] had done really well for
himself by staying out of trouble for the most part,” and Ware then concludes the 5 years’
imprisonment “was more than sufficient.” Id.
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Russell, 292 Neb. 501, 874 N.W.2d 9 (2016).
        Ware’s excessive sentence argument largely rests on the additional years he received as a
result of the consecutive sentence for terroristic threats, which we have vacated and remanded for
resentencing. He claims the 5-year mandatory minimum sentence for Ware’s use of a deadly
weapon to commit a felony conviction was “more than sufficient.” The court was not permitted to
order probation, and ordered the very minimum sentence required by law. Although the court gave
a range of 5 to 7 years’ imprisonment, this cannot be said to constitute an abuse of discretion. We
affirm Ware’s sentence for his conviction for use of a deadly weapon to commit a felony.
                                3. INEFFECTIVE ASSISTANCE OF COUNSEL
       Ware claims his trial counsel was ineffective for failing to properly investigate the scene
of the incident, failing to interview witnesses, and failing to adequately demonstrate the



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exculpatory nature of exhibit 28 (photograph). The record is sufficient to review these claims and
we conclude trial counsel’s performance was not deficient, nor was there prejudice to Ware’s
defense.
        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. State v. Mendez-Osorio, 297 Neb. 520, 900
N.W.2d 776 (2017). Otherwise, the issue will be procedurally barred. Id. The fact that an
ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it
can be resolved. Id. The determining factor is whether the record is sufficient to adequately review
the question. Id.
        Allegations of how the defendant was prejudiced by trial counsel’s allegedly deficient
conduct are unnecessary to the specific determination of whether a claim of ineffective assistance
of counsel can be determined based on the record on direct appeal. Id. In the case of an argument
presented for the purpose of avoiding procedural bar to a future postconviction proceeding,
appellate counsel must present a 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. Id.
        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 counsel’s
performance was deficient and that this deficient performance actually prejudiced his or her
defense. State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015). To show deficient performance,
a defendant must show counsel’s performance did not equal that of a lawyer with ordinary training
and skill in criminal law in the area. State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).
To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have been different. State v. Newman,
supra. An appellate court may address the two prongs of this test, deficient performance and
prejudice, in either order. Id.
        Appellate courts have generally reached ineffective assistance of counsel claims on direct
appeal only in those instances where it was clear from the record that such claims were without
merit or in the rare case where trial counsel’s error was so egregious and resulted in such a high
level of prejudice that no tactic or strategy could overcome the effect of the error, which effect was
a fundamentally unfair trial. State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015). An
ineffective assistance of counsel claim made on direct appeal can be found to be without merit if
the record establishes that trial counsel’s performance was not deficient or that the appellant could
not establish prejudice. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
        An ineffective assistance of counsel claim will not be addressed on direct appeal if it
requires an evidentiary hearing. State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
                  (a) Investigating Scene of Incident and Interviewing Witnesses
       Ware claims his trial counsel was deficient by failing to investigate the scene of the
incident; he claims Parker testified the incident happened just before school was dismissed and



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that there were “probably hundreds of parents and kids within sight of where the incident took
place.” Brief for appellant at 9. Ware contends, “It is hard to imagine that not one person witnessed
a van pull onto the curb and point a gun on [sic] the window at [Parker],” and “it is equally hard
to imagine that no surveillance existed at [the] school.” Id. He then asserts, “To not secure one
witness or to have any other evidence from the scene illustrates that trial counsel for [Ware] failed
to properly investigate the scene of the incident.” Id. Ware does not specify how an investigation
of the scene of the incident--the sidewalk where the second altercation occurred--would have
produced any specific piece of evidence. For his counsel to have been deficient in failing to go to
the scene of the incident, Ware at least needs to allege with some particularity what he would
expect could have been discovered that would have been favorable to his defense. Although Ware
alludes to the possibility of surveillance at the school, he fails to state how such surveillance would
have benefitted his defense.
         Ware also claims, “For all the same reasons listed in the above argument, trial counsel was
deficient for failing to find or look for one independent witness that could have supported [Ware’s]
version of events[,]” and this deficiency prejudiced Ware. Id. He does not specify what
“independent witness” counsel should have interviewed, nor does he assert what that witness
testimony would reveal.
         In a direct appeal, we do not need specific factual allegations 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. State v. Abdullah, supra.
Nevertheless, we 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. Id. However, mere
speculation as to pieces of evidence that can be imagined to possibly exist, and/or the conclusion
that trial counsel should have found some unspecified piece of evidence that might have somehow
exonerated Ware is not sufficiently particular to show deficient performance or prejudice. See
State v. Threet, 231 Neb. 809, 813, 438 N.W.2d 746, 749 (1989), disapproved on other grounds,
State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004) (claim of ineffective assistance based upon
defense counsel not procuring witnesses and evidence favorable to defendant failed to specify what
witnesses could have been procured or what evidence adduced; counsel not ineffective for
determining “if anywhere in this wide world there is some evidence favorable to defendant’s
position”); State v. Abdullah, supra (defendant’s failure to make sufficiently specific allegations
of deficient conduct relating to counsel’s alleged failure to call witnesses is too vague for
determination).
         When the claim 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. State v. Casares, supra. 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.
Appellate courts have generally reached ineffective assistance of counsel claims on direct appeal
only in those instances where it was clear from the record that such claims were without merit; an
ineffective assistance of counsel claim made on direct appeal can be found to be without merit if



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the record establishes that trial counsel’s performance was not deficient or that the appellant could
not establish prejudice. See id.
        We conclude Ware failed to make sufficiently specific allegations of deficient conduct
relating to the alleged failure to investigate the scene or to find an independent witness to support
Ware’s version of the events. The record establishes that trial counsel’s performance was not
deficient, nor was there prejudice to Ware’s defense.
                       (b) Demonstrating Exculpatory Nature of Exhibit 28
        Ware also argues his trial counsel was ineffective for not “mentioning” exhibit 28
(photograph) during closing statements and moving past it too quickly after entering it into
evidence during witness examination. When reviewing claims of ineffective assistance, an
appellate court will not second-guess a trial counsel’s reasonable strategic decisions. State v.
Loding, 296 Neb. 670, 895 N.W.2d 669 (2017).
        The record before us does not support a claim of ineffective assistance of counsel regarding
exhibit 28. Exhibit 28 was offered into evidence by Ware’s counsel during the direct examination
of Carson. Carson laid the foundation for the exhibit by testifying it was a photograph accurately
depicting Ware’s living room, and that in the bottom right corner there was a white laundry basket
with a tan jacket in it matching the one she testified Ware was wearing the entire time she was
with him on November 18, 2015. Ware’s trial counsel published the exhibit to the jury and then
proceeded through an extensive line of questioning in the examination of Carson to see if there
was any point in time when Ware was not wearing the tan jacket until he left Carson that afternoon.
        The purpose of this examination and exhibit 28 was to corroborate Carson’s description of
Ware’s clothing and the defense’s alternate explanation of events on the day in question, thereby
also challenging Parker’s description of Ware’s appearance and the events that day. During Ware’s
closing arguments, trial counsel referenced the disparity between Carson’s and Parker’s testimony
regarding which jacket Ware had on that afternoon without specifically referencing exhibit 28.
The members of the jury were present for the examination of Carson, the publication of exhibit 28
in the courtroom, and Ware’s closing arguments, which combined gave them a chance to
adequately assess the exculpatory nature of exhibit 28. The jury had the opportunity to weigh this
information against the State’s evidence of Parker’s testimony and a .32 caliber pistol being found
in the pocket of a black jacket matching Parker’s description on Ware’s bed, and the jury
nevertheless unanimously convicted Ware.
        We find the record establishes there was no deficiency in the direct examination of Carson
regarding exhibit 28, or failing to specifically refer to the exhibit during closing argument. We
conclude Ware did not receive ineffective assistance of counsel regarding the exculpatory nature
of exhibit 28.
                                        VI. CONCLUSION
        For the reasons set forth above, we affirm both of Ware’s convictions and his sentence for
use of a deadly weapon to commit a felony under § 28-1205. However, we vacate Ware’s sentence




                                                -9-
and remand the cause to the district court for a new, indeterminate sentence for Ware’s terroristic
threats conviction under § 28-311.01 in accordance with § 29-2204.02(4).
                                                         AFFIRMED IN PART, AND IN PART VACATED
                                                         AND REMANDED FOR RESENTENCING.




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