                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. HOSCHEIT


  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.

                                 BILLY R. HOSCHEIT, APPELLANT.


                            Filed December 3, 2019.     No. A-18-1205.


       Appeal from the District Court for Pierce County: JAMES G. KUBE, Judge. Affirmed.
       Nathan J. Stratton, of Stratton, DeLay, Doele, Carlson, Buettner & Stover, P.C., L.L.O.,
for appellant.
       Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.


       MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
       MOORE, Chief Judge.
                                       I. INTRODUCTION
        Billy R. Hoscheit appeals from his convictions and sentences in the district court for Pierce
County for third degree assault on an officer, resisting arrest, obstructing a peace officer, and
disobeying a patrol officer. On appeal, he challenges the sufficiency of the evidence to convict him
of all four charges and the court’s failure to give his requested self-defense jury instruction. He
also asserts that he received ineffective assistance of trial counsel in various regards. For the
reasons set forth herein, we affirm.
                                       II. BACKGROUND
        On May 30, 2018, the State filed an information in the district court, charging Hoscheit
with third degree assault on an officer under Neb. Rev. Stat. § 28-931(1) (Reissue 2016), a Class
IIIA felony; resisting arrest under Neb. Rev. Stat. § 28-904 (Reissue 2016), a Class I misdemeanor;



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obstructing a peace officer under Neb. Rev. Stat. § 28-906 (Reissue 2016), a Class I misdemeanor;
and disobeying a patrol officer under Neb. Rev. Stat. § 81-2008 (Reissue 2014), a Class III
misdemeanor.
         A jury trial was held on October 22-23, 2018. The State presented testimony from two law
enforcement officers involved in this case. The district court received into evidence exhibits
offered by the parties, including various photographs of the scene and of the injuries to one
officer’s face, as well as a copy of video recordings of the incident in question and screenshots
taken from the video.
         On December 25, 2017, while on duty, Nebraska State Patrol Trooper Brandon Viterna
investigated a traffic accident. Viterna testified that through “multiple calls [his] dispatch placed
for the registered owner,” the identities of both the owner and the driver of the vehicle were
determined. The registered owner was a woman with whom Viterna was familiar, and the woman
advised dispatch that the driver was another woman whom Viterna did not know. Additionally,
Viterna learned from “[his] dispatch” that the owner of the vehicle and Hoscheit had informed the
dispatcher that the driver “was okay from the accident” but that they were not “going to provide
the information of where she was located.” Viterna was unable to locate the driver on December
25, but due to the prior contacts that day, he suspected that the driver might be at Hoscheit’s
residence. Accordingly, at the start of his shift on December 26, he decided to go to Hoscheit’s
residence to see if he could speak with the driver there.
         Upon approaching Hoscheit’s residence, Viterna observed Hoscheit and two women exit a
vehicle and make their way toward the residence. Viterna testified that Hoscheit communicated
something to the women, who “proceeded quickly” into the residence, which prompted Viterna to
roll through a stop sign “in an attempt to get into the driveway to make contact with [the driver in
question] prior to her getting into the residence.” As Viterna drove closer to the residence, he saw
Hoscheit walk back to the parked vehicle, retrieve a machete from the passenger area of the
vehicle, and unsuccessfully attempt to pull the machete out of the sheath a couple of times.
         The State offered into evidence a DVD containing video footage recorded by the camera
in Viterna’s patrol car. The first video clip shows Viterna driving towards Hoscheit’s residence,
roll through the stop sign, and pull into Hoscheit’s driveway right after the sound on the video
starts. Hoscheit can be seen reaching into the parked vehicle as Viterna pulls into the driveway and
walking towards Viterna empty handed once Viterna’s vehicle stops. The video quality is poor,
but Viterna can clearly be heard asking Hoscheit why he was grabbing a machete, to which there
is no direct response from Hoscheit. Hoscheit asked Viterna what he wanted.
         The first video clip shows Viterna with his right hand in the vicinity of his holstered pistol
as he approaches Hoscheit. Viterna states, “I want to talk to--” before being cut off by Hoscheit,
who yells, “Get your hand off your gun. Get off my property right now . . . you have a warrant or
get your hand off that fucking weapon.” Viterna then tells Hoscheit “shut your ass,” after which
Hoscheit moves quickly towards Viterna while continuing to yell and curse. Viterna can be seen
striking Hoscheit on the right side of his head with his right closed fist, and a scuffle ensues.
         At that point the first video clip shows a woman, who runs out of the house exclaiming
“what the fuck, oh my god” and tries to separate Hoscheit and Viterna. Viterna then radios for
backup just before Hoscheit repeatedly tells him to “get the fuck off [his] property.” Viterna then
tells Hoscheit to get on the ground, which Hoscheit does not do. Viterna also repeats his request


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to speak with someone at the residence. After further similar exchanges, including Hoscheit yelling
“you want to assault me” and Viterna responding “shut up,” Viterna tells Hoscheit to get the dog
[who was on the scene] back in the house, and Hoscheit responds, “Fuck you. This is my dog on
my place.”
         Eventually, a second woman comes out of the residence and responds affirmatively to
Viterna’s inquiry of whether she was involved in the accident the previous night. During this
exchange, Hoscheit continues to yell and demand that Viterna leave. The second woman asks
Viterna to move his vehicle off the property and states that she will meet him so they can talk.
While Viterna moves to his vehicle, the video shows Hoscheit following close behind Viterna,
continuing his demands that Viterna leave and calling him a “motherfucker.” The video then shows
Viterna backing his vehicle off the driveway while Hoscheit walks close in front of it continuing
to yell at Viterna.
         After this first video clip was played for the jury, Viterna’s testimony resumed. Viterna
stated that after the events captured in that video clip, he was able to speak with the two women at
the scene without incident. Viterna identified the women by name during his testimony, indicated
that the second woman shown in the video was the individual he was looking for, and described
both women as cooperative. Viterna characterized his action in hitting Hoscheit as an unsuccessful
attempt to deliver a “brachial strike,” a technique troopers are trained in, which is intended to “stun
or disorient an individual.” Viterna testified that his attempt was not successful due to “the fluidity
of the situation,” resulting in the strike being delivered “a little high” and landing on the side of
Hoscheit’s head rather than his neck. Viterna testified that during the subsequent struggle, Hoscheit
hit him on his left cheek, just below his eye. Viterna’s injuries were later photographed and
documented at a hospital. The hospital examination revealed “some minor swelling and redness”
of his cheek and showed that his eye was “somewhat bloodshot in the corner.” Hospital personnel
recommended treatment with ibuprofen and ice if needed.
         Viterna testified that he informed Hoscheit he was under arrest prior to the arrival of other
law enforcement officers. Viterna stated that he “was instructing Hoscheit to get on the ground
because he was under arrest” but that Hoscheit did not comply, continued to “yell over the top of”
Viterna, and ignored Viterna’s orders. Viterna indicated that three additional officers from three
other law enforcement agencies, including Pierce County Sheriff Rick Eberhardt, arrived between
5 and 15 minutes after Viterna’s call for backup. While Hoscheit walked back and forth in his yard
and entered and exited the residence once or twice, Viterna briefed the other officers on the
situation, including the fact that Hoscheit had hit him.
         Eventually, the group of officers, led by Eberhardt, attempted to make contact with
Hoscheit to place him under arrest. Hoscheit responded by going into his residence and locking
himself inside. According to Viterna, Eberhardt led Viterna and a third officer to another door to
gain access. Hoscheit declined Eberhardt’s request to come out voluntarily. After some
negotiation, Eberhardt kicked the door open, but Hoscheit slammed it shut and “resecured [it]
somehow.” After further brief negotiation, Eberhardt kicked the door down again, and the officers
entered, giving Hoscheit “multiple orders to get on the ground,” which he refused. According to
Viterna, the officers collectively tried to take control of Hoscheit, but he “continued to resist and
kick.” Eventually, the officers gained control of Hoscheit and placed him in handcuffs.



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          A second video clip containing audio of the officers’ entry into the residence and their
confrontation with and arrest of Hoscheit was played for the jury (the video portion of this clip
only shows the outside of the residence). In the second clip, Hoscheit can be heard asking multiple
times if he is under arrest, to which an officer responds that he is and tells him to come out. When
Hoscheit asks why he is under arrest, an officer responds “did you hear the cop?” followed by a
long pause and the officer’s response of “then you know why, Billy.” In response to another request
for Hoscheit to come out, he can be heard responding that “if I struck an officer it was in [inaudible]
of myself.” After further instructions to come out of the residence, Hoscheit responds that he
“consider[s] the arrest for an assault on an officer who was trespassing and who assaulted [him]
first illegal,” and he states that he “will resist [inaudible] arrest.” Hoscheit subsequently stated that
“he came here without warrant on my property . . . and then he assaulted me . . . he should’ve left
when he was told to . . . he can’t come on my property and give me orders.” The officers can then
be heard breaching the door and subduing Hoscheit.
          After the second clip was played for the jury, Viterna confirmed that he did not have a
warrant prior to his encounter with and arrest of Hoscheit, but he noted that there are occasions
when law enforcement officers can arrest individuals without a warrant. Viterna also indicated that
his attempts to communicate with Hoscheit were largely fruitless because Hoscheit just continued
to “talk over and yell over and was not listening to rational discussion.” Viterna also testified that
he was unable to visit with the driver relevant to his accident investigation without Hoscheit’s
interruption until they left Hoscheit’s property. He testified that as a member of the Nebraska State
Patrol, he gave Hoscheit orders which he did not obey.
          On cross-examination, Viterna agreed that he was the first to use force during the
confrontation with Hoscheit and that he had done so after Hoscheit asked him to leave. Viterna
reviewed individual screenshots taken from the first video clip, and he agreed that just prior to the
scuffle Hoscheit had approached Viterna with his hands held down at his sides. On redirect,
Viterna confirmed his observation of Hoscheit retrieving a machete from inside the vehicle, which
gave Viterna an elevated concern for his safety. Viterna also testified that during the period
depicted in the screenshots he was shown on cross-examination, he had been standing still while
Hoscheit had been moving around, yelling, clenching his fists, and “blowing out his chest, acting
aggressive” as he approached Viterna.
          Eberhardt testified that upon his arrival at Hoscheit’s residence, he observed that three
other officers were already present and that Hoscheit was standing in the front yard. When
Eberhardt got out of his car, Hoscheit yelled and screamed at him, and Eberhardt told him to be
quiet. Eberhardt then spoke with the other officers, and Viterna told Eberhardt that Hoscheit struck
Viterna while he was there investigating another case. Viterna also informed Eberhardt that he was
trying to arrest Hoscheit. Eberhardt then described the officers’ efforts to effectuate Hoscheit’s
arrest, and his account was consistent with both Viterna’s description and the audio portion of the
second video clip. Eberhardt testified that when the door to the residence first opened, he observed
Hoscheit with a black object in his hand, which Eberhardt thought was a firearm, before the door
slammed shut again. Eberhardt alerted the other officers to the possible presence of a firearm and
told Hoscheit he was under arrest. Eberhardt testified that it required all four officers present to
gain control of Hoscheit once the door opened the second time and they were inside the residence.
On cross-examination, Eberhardt testified that he did not believe Viterna had disclosed Hoscheit’s


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request for Viterna to leave the property prior to Hoscheit’s assault of Viterna, but he could not
recall for certain.
        After the State rested, Hoscheit’s attorney made an oral motion to dismiss the obstruction
charge which the district court denied. Hoscheit then rested without presenting any evidence, and
his attorney renewed the motion to dismiss, arguing at that point that he had been addressing his
prior motion to all four counts and had just argued “a little more vigorously” with respect to the
obstruction charge. The court overruled Hoscheit’s renewed motion.
        During the jury instruction conference, Hoscheit’s attorney objected to the jury instruction
with respect to the elements of the crimes charged, asking the district court to include “self-defense
language” in that jury instruction. The court overruled Hoscheit’s objection, stating that
“insufficient evidence . . . has come out during the trial that would require the giving of an
instruction on self-defense.” The court stated further:
                 I believe that the evidence indicated that [Hoscheit] initiated aggressive behavior
        toward Trooper Viterna by physically approaching him and getting close to him and yelling
        directly in his face. Additionally, the officer at that point was not effecting an arrest.
                 Therefore, I think that the . . . affirmative defense of self-defense is not appropriate.
        However, I do believe that the affirmative defense of defense of property is appropriate
        and that’s why I have included that in the elements section . . . of Instruction number 4
        [concerning the elements of the crimes charged].

        The jury found Hoscheit guilty on all four counts. The district court accepted the jury’s
verdicts and convicted Hoscheit of third degree assault on an officer, resisting arrest, obstructing
a peace officer, and disobeying a patrol officer. Subsequently, the court sentenced Hoscheit to a
concurrent term of 24 months’ probation for those convictions.
                                  III. ASSIGNMENTS OF ERROR
        Hoscheit asserts, reordered, that (1) the district court erred by failing to give his requested
self-defense jury instruction; (2) the evidence was insufficient to convict him on each of the
charges; and (3) he received ineffective assistance when his attorney did not allow him to testify,
did not call any witnesses, did not subpoena witnesses Hoscheit wanted to call in his favor, did not
subpoena phone calls made by Hoscheit to the Pierce County Sheriff’s Department, did not present
any evidence at trial, and did not present a self-defense argument at trial.
        The Nebraska Supreme Court has recently held 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. State v.
Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). While portions of Hoscheit’s assignment of error as
to ineffective assistance of counsel arguably do not conform to this rule, the brief in this case
predates Mrza and the specific issues complained of are readily discernable from the argument
section of his brief. We therefore address those portions of his assignment of error relating to
ineffective assistance of trial counsel that he also specifically argues in his brief. 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. State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441
(2019).


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                                  IV. STANDARD OF REVIEW
        Whether jury instructions are correct is a question of law, which an appellate court resolves
independently of the lower court’s decision. State v. Schmaltz, 304 Neb. 74, 933 N.W.2d 435
(2019). Statutory interpretation presents a question of law, which an appellate court reviews
independently of the lower court’s determination. Id.
        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 the witnesses, or reweigh
the evidence; such matters are for the finder of fact. State v. Thomas, 303 Neb. 964, 932 N.W.2d
713 (2019). 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. Id.
        Whether a claim of ineffective assistance of trial counsel can be determined on direct
appeal presents a question of law, which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a
statute or constitutional requirement. State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). An
appellate court determines as a matter of law whether the record conclusively shows that (1) a
defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a
defense counsel’s alleged deficient performance. Id.
                                          V. ANALYSIS
                               1. SELF-DEFENSE JURY INSTRUCTION
        Hoscheit asserts that the district court erred by failing to give his requested self-defense
jury instruction.
        To establish reversible error from a court’s refusal to give a requested instruction, an
appellant has the burden to show that (1) the tendered instruction is a correct statement of the law,
(2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by
the court’s refusal to give the tendered instruction. State v. Schmaltz, supra.
        To successfully assert the claim of self-defense, one must have a reasonable and good faith
belief in the necessity of using force. State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011). In
addition, the force used in defense must be immediately necessary and must be justified under the
circumstances. Id. See, also, Neb. Rev. Stat. § 28-1409 (Reissue 2016) (concerning use of force in
self-protection). A trial court must instruct the jury on the issue of self-defense when there is any
evidence adduced which raises a legally cognizable claim of self-defense. State v. Iromuanya, 272
Neb. 178, 719 N.W.2d 263 (2006). If the trial evidence does not support a claim of self-defense,
the jury should not be instructed on it. Id.
        In prosecutions for assaulting an officer, obstructing a peace officer, or resisting arrest, a
trial court must instruct the jury on the issue of self-defense when there is any evidence adduced
which raises a legally cognizable claim that the police officer used unreasonable force in making
the arrest. State v. Yeutter, 252 Neb. 857, 566 N.W.2d 387 (1997). Reasonable force, which may
be used by an officer making an arrest, is generally considered to be that which an ordinarily
prudent and intelligent person, with the knowledge and in the situation of the arresting officer,


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would deem necessary under the circumstances. Waldron v. Roark, 298 Neb. 26, 902 N.W.2d 204
(2017). The inquiry into the reasonableness of a use of force assesses reasonableness at the moment
of the use of force, as judged from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight. Id.
        In this case, the trial evidence did not support a claim of self-defense. The evidence shows
that Hoscheit was reaching into a vehicle as Viterna pulled into Hoscheit’s driveway and that
Hoscheit was pulling out a machete from the vehicle although he was empty-handed when he
began walking toward Viterna. In turn, Viterna placed his hand on his gun and inquired about the
machete he had observed Hoscheit grabbing. Hoscheit became combative, ordered the officer off
his property, and continued to approach him in a threatening manner. Viterna attempted to subdue
Hoscheit due to fear for his safety, but his attempt to use a brachial strike technique based upon
his officer training was unsuccessful, and Viterna actually struck the side of Hoscheit’s head as
opposed to his neck. A scuffle ensued, during which Viterna continued to try to subdue Hoscheit
and was hit by Hoscheit in the process. Given Viterna’s observation of Hoscheit handling the
machete when he pulled into the driveway and Hoscheit’s aggressive behavior, Viterna’s attempt
to subdue Hoscheit was reasonable. The evidence does not support an inference that Hoscheit had
a reasonable and good faith belief in the necessity of using force to defend himself against Viterna
or that Viterna used unreasonable force in attempting to subdue Hoscheit so that he could pursue
his investigation of the automobile accident. Because there was no evidence to support a claim of
self-defense in this case, the district court did not err in refusing to give the requested instruction.
                                    2. SUFFICIENCY OF EVIDENCE
       Hoscheit asserts that the evidence was insufficient to convict him on each of the charges.
                                (a) Third Degree Assault on Officer
        A person commits the offense of third degree assault on an officer if he or she intentionally,
knowingly, or recklessly causes bodily injury to a peace officer, and the offense is committed while
such officer is engaged in the performance of his or her official duties. § 28-931; State v. Wells,
290 Neb. 186, 859 N.W.2d 316 (2015). Under Neb. Rev. Stat. § 28-109(4) (Reissue 2016),
“[b]odily injury” is defined to mean “physical pain, illness, or any impairment of physical
condition.”
        Hoscheit does not dispute that Viterna suffered bodily injury as a result of being hit by
Hoscheit; rather, he argues that Viterna’s injuries were not “intentionally, knowingly, or
recklessly” caused by him because Viterna “was the initial aggressor, escalated the situation by
placing his hand on his firearm, and refused [Hoscheit’s] lawful request for . . . Viterna to leave
his property.” Brief for appellant at 13.
        The evidence shows that Viterna arrived at Hoscheit’s residence in his patrol vehicle, in
uniform, to carry out an investigation as part of his official duties with the Nebraska State Patrol.
Hoscheit handled a sheathed machete, returned the machete to a vehicle, and then moved
aggressively toward Viterna, while cursing and yelling. Viterna struck Hoscheit in an attempt to
defuse the situation, and Hoscheit subsequently struck Viterna. Hoscheit does not deny that he hit
Viterna or argue that Viterna’s injuries were not as described by Viterna’s testimony and the
photographs admitted into evidence. Viterna testified that Hoscheit struck him in the left cheek,


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below his eye, and that he experienced some minor swelling and redness. Hospital personnel told
Viterna to treat the injury with ibuprofen and ice if needed. Although Hoscheit criticizes Viterna
for refusing to leave the property and placing his hand on his gun, the evidence shows that there
was more to the situation than reflected in Hoscheit’s brief. Viterna’s conduct has to be considered
not just in light of Hoscheit’s yelled demands, but also in light of Hoscheit’s handling of the
machete as Viterna drove up and Viterna’s aggressive posturing and hostile, verbal barrage, which
impeded Viterna’s ability to conduct his investigation. To the extent Hoscheit is relying on his
argument that he was acting in self-defense, as discussed above, an instruction of self-defense was
not warranted by the evidence. And, the jury, which was instructed on defense of property,
determined that Hoscheit was not acting in defense of his property when he struck Viterna. Even
if Hoscheit did not intentionally or knowingly cause Viterna’s injuries, the evidence supports a
conclusion that Viterna’s aggressive actions constituted reckless conduct that resulted in bodily
injury to Viterna.
        Viewing the evidence in the light most favorable to the prosecution, a rational jury could
have found the essential elements of the crime beyond a reasonable doubt. See State v. Thomas,
303 Neb. 964, 932 N.W.2d 713 (2019). The evidence was sufficient to support Hoscheit’s
conviction for third degree assault on an officer.
                                        (b) Resisting Arrest
       Hoscheit was convicted of resisting arrest in violation of § 28-904(1), which provides:
               A person commits the offense of resisting arrest if, while intentionally preventing
       or attempting to prevent a peace officer, acting under color of his or her official authority,
       from effecting an arrest of the actor or another, he or she:
               (a) Uses or threatens to use physical force or violence against the peace officer or
       another; or
               (b) Uses any other means which creates a substantial risk of causing physical injury
       to the peace officer or another; or
               (c) Employs means requiring substantial force to overcome resistance to effecting
       the arrest.

An arrest is taking custody of another person for the purpose of holding or detaining him or her to
answer a criminal charge, and to effect an arrest, there must be actual or constructive seizure or
detention of the person arrested. State v. Heath, 21 Neb. App. 141, 838 N.W.2d 4 (2013). See,
also, State v. Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015).
        Hoscheit argues that the evidence in this case was insufficient because the video offered
into evidence showed that he retreated to his residence after the confrontation with Viterna and
that he proceeded to repeatedly ask whether he was under arrest before law enforcement eventually
gained entry and arrested him. His arguments ignore the evidence that he physically resisted
attempts by law enforcement to handcuff and arrest him once he had entered the residence and
after he was told that he was under arrest. In his testimony, Viterna described officers’ attempts to
gain control of Hoscheit, who continued to resist and kick at them after they had taken him down
to the ground and before he was handcuffed. Eberhardt further detailed the struggle that required
four officers to handcuff Hoscheit. Also, the jury heard audio of the encounter from the video


                                                -8-
recording, including confirmation that Hoscheit was under arrest prior to the officers trying to
handcuff and subdue him. The evidence was sufficient to show that Hoscheit resisted arrest. See
State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001) (evidence sufficient to support
conviction for resisting arrest where defendant resisted handcuffing and struggled with officers
after being informed she was under arrest).
        Viewing the evidence in the light most favorable to the prosecution, a rational jury could
have found the essential elements of the crime beyond a reasonable doubt. See State v. Thomas,
supra. The evidence was sufficient to support Hoscheit’s conviction for resisting arrest.
                                   (c) Obstructing Peace Officer
       Hoscheit was convicted of obstructing a peace officer pursuant to § 28-906(1), which
provides:
       A person commits the offense of obstructing a peace officer, when, by using or threatening
       to use violence, force, physical interference, or obstacle, he or she intentionally obstructs,
       impairs, or hinders (a) the enforcement of the penal law or the preservation of the peace by
       a peace officer or judge acting under color of his or her official authority or (b) a police
       animal assisting a peace officer acting pursuant to the peace officer’s official authority.

The mere verbal refusal to provide information to an officer does not constitute an obstacle to the
enforcement of the penal laws as contemplated by § 28-906. State v. Owen, 7 Neb. App. 153, 580
N.W.2d 566 (1998). There must be some sort of affirmative physical act, or threat thereof, for the
offense of obstructing a peace officer to occur. State v. Ellingson, 13 Neb. App. 931, 703 N.W.2d
273 (2005).
        Hoscheit argues that he could not have been found guilty of obstructing a peace officer
because there was no evidence that he intentionally obstructed, impaired, or hindered Viterna’s
investigation. We disagree. While Hoscheit focuses on his refusal to answer Viterna’s questions
in relation to the traffic accident investigation and his demands that Viterna leave his property,
these actions are not what exposed Hoscheit to penalty under § 28-906(1). As Viterna drove up to
the property, he observed two women relevant to his traffic investigation and Hoscheit exit a
vehicle. He then saw the two women move quickly into the house and Hoscheit retrieve a machete
from the vehicle and attempt to unsheathe it before placing it back into the vehicle. Once Viterna
exited his patrol vehicle, Hoscheit approached him in close proximity and began swearing and
yelling at Viterna to take his hand off of his gun and leave the property. Hoscheit continued his
barrage of yelling and cursing as Viterna attempted to inquire about speaking with the driver
involved in the traffic accident. Hoscheit’s conduct, body language, and communication
represented the use or threat to use violence, force, physical interference, or obstacle, which
intentionally obstructed, impaired, or hindered Viterna’s ability to investigate the traffic accident.
Further, Hoscheit’s conduct relevant to the obstruction charge is not restricted to his initial
interaction with Viterna in the driveway. The testimony and recordings show that after entering
the residence, Hoscheit warned that he would resist arrest and that he proceeded to do so by
physically struggling with officers and resisting restraint to the point that it required four officers
to subdue him. These actions were also sufficient to sustain the charge of obstruction. See State v.
Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001) (evidence showing that defendant resisted


                                                 -9-
handcuffing, struggled with officer, and continued to resist restraint are alone sufficient to sustain
conviction for obstructing peace officer).
         The evidence presented at trial was sufficient to convict Hoscheit of obstructing a peace
officer.
                                   (d) Disobeying Patrol Officer
         Hoscheit was convicted of violating § 81-2008, which states, “Any person who fails or
refuses to obey any lawful traffic direction or any lawful order of the superintendent or any of the
subordinate officers or employees of the Nebraska State Patrol . . . shall be deemed guilty of a
Class III misdemeanor.”
         Hoscheit does not dispute that Viterna was an employee of the Nebraska State Patrol or
that he disobeyed Viterna’s order telling him to get on the ground. Rather, he argues that since
Viterna “had just punched [Hoscheit], refused to leave his property, and would not take his hand
off his gun,” the order was not lawful under the circumstances. Brief for appellant at 12.
         The evidence shows that Viterna received information from dispatch that the driver of a
vehicle involved in the traffic accident he was investigating might be located at Hoscheit’s
residence. In approaching the residence, Viterna observed Hoscheit, together with both the female
driver and the female owner of the vehicle relevant to his traffic investigation. The women entered
the residence, but Viterna observed Hoscheit retrieve a sheathed machete from the vehicle the
three had just exited. After Hoscheit returned the machete to the vehicle, he moved quickly toward
Viterna, yelling and cursing, and aggressively interrupting Viterna’s inquiry about the machete, as
well as his attempts to inquire about speaking with the driver involved in the traffic accident.
Viterna unsuccessfully attempted to defuse the situation by delivering a brachial strike that ended
up being delivered to the side of Hoscheit’s head rather than his neck due to “the fluidity of the
incident.” Hoscheit hit Viterna in the face during the ensuing struggle, and Viterna’s order for
Hoscheit to get on the ground was given subsequent to that offense. Viterna testified that he was
instructing Hoscheit to get on the ground because he was under arrest and that Hoscheit continued
to yell and ignore orders, rather than complying with Viterna’s order.
         With respect to Hoscheit’s contention that Viterna’s order was unlawful, we note that Neb.
Rev. Stat. § 81-2005 (Reissue 2014) gives officers of the State Patrol the powers to enforce “the
Nebraska Rules of the Road, and any other law regulating the registration or operation of vehicles
or the use of the highways,” to “make arrests upon view and without warrant for any violation
committed in their presence of any provision of the laws of the state relating to misdemeanors or
felonies,” and to “investigate traffic accidents for the purpose of . . . enforcing motor vehicle and
highway safety laws,” among other powers. As discussed further in other argument sections of this
opinion, the evidence was sufficient to support Hoscheit’s convictions for third degree assault on
an officer, resisting arrest, and obstructing a peace officer. And, Viterna’s actions in placing his
hand on his gun, inquiring about the machete, and attempting to subdue Hoscheit were reasonable
and lawful given Hoscheit’s behavior and Viterna’s concerns about officer safety.
         We conclude that the evidence was sufficient to support a finding that Viterna’s order was
lawful and that Hoscheit refused to obey that lawful order. Accordingly, the evidence was
sufficient to support a conviction for failure to obey a lawful order of the State Patrol.



                                                - 10 -
                          3. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
          Hoscheit asserts that he received ineffective assistance of trial counsel in various regards.
He is represented on direct appeal by different counsel than trial counsel. 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. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). Otherwise, the
issue will be procedurally barred in a subsequent postconviction proceeding. Id. The fact that an
ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it
can be resolved on direct appeal. Id. The determining factor is whether the record is sufficient to
adequately review the question. 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. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019). An
ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing. State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019).
          To raise a claim on direct appeal that trial counsel was ineffective, a defendant’s brief must
specifically set forth how counsel’s performance was deficient, but it need not also allege
prejudice. State v. Stelly, 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. State v. Sundquist, supra. 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 petition for postconviction
relief to be able to recognize whether the claim was brought before the appellate court. State v.
Stelly, supra. The record on direct appeal is sufficient to review a claim of ineffective assistance
if it establishes either that trial counsel’s performance was not deficient, that the appellant will not
be able to establish prejudice, or that trial counsel’s actions could not be justified as a part of any
plausible trial strategy. Id.
          Generally, 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. Stelly, supra. To show that counsel’s performance was
deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Id. 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. Id. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019). The two prongs
of this test may be addressed in either order, and the entire ineffective assistance analysis should
be viewed with a strong presumption that counsel’s actions were reasonable. State v. Manjikian,
303 Neb. 100, 927 N.W.2d 48 (2019).



                                                 - 11 -
         Hoscheit specifically argues that his trial counsel was ineffective for not (a) allowing him
to testify, (b) calling other witnesses Hoscheit wanted to call in his favor, (c) subpoenaing phone
calls made by Hoscheit to the Pierce County Sheriff’s Department, and (d) presenting enough
evidence to justify a self-defense jury instruction.
                                         (a) Right to Testify
        Hoscheit argues that he wanted to testify in his defense but that his attorney did not allow
him to do so. A defendant has a fundamental constitutional right to testify. State v. Golyar, 301
Neb. 488, 919 N.W.2d 133 (2018). The right to testify is personal to the defendant and cannot be
waived by defense counsel’s acting alone. Id.
        Defense counsel bears the primary responsibility for advising a defendant of his or her right
to testify or not to testify, of the strategic implications of each choice, and that the choice is
ultimately for the defendant to make. Id. Defense counsel’s advice to waive the right to testify can
present a valid claim of ineffective assistance of counsel in two instances: (1) if the defendant
shows that counsel interfered with his or her freedom to decide to testify or (2) if counsel’s tactical
advice to waive the right was unreasonable. Id.
        Hoscheit does not argue that he was not informed of his right to testify; rather, he argues
that he wanted to testify and that his attorney prevented him from doing so. In arguing that his trial
counsel interfered with his freedom to testify, Hoscheit notes that his attorney did not present any
evidence in his defense and only presented a few photographs pulled from the video of the
encounter in question during cross-examination of Viterna. He suggests that because his attorney
did not subpoena any of the phone calls made to dispatch or present testimony from “the other two
witnesses at the scene, the jury “only heard one version of events.” Brief for appellant at 16.
Hoscheit argues that, if he had been allowed to testify, “it is very possible that the testimony he
provided would be enough to place reasonable doubt in the mind of the jurors.” Brief for appellant
at 16. Hoscheit did not waive his right to testify on the record, and the record does not reveal the
details of any discussion between him and his attorney on this issue. We conclude that the record
is insufficient to address this claim on direct appeal.
                                    (b) Failure to Call Witnesses
        Hoscheit argues that he wanted to call witnesses on his behalf and that his attorney did not
call “the other two witnesses at the scene.” Brief for appellant at 16. Although he does not identify
by name the witnesses he wanted to call, presumably Hoscheit wanted his attorney to call the two
women who were on the premises during the encounter between Hoscheit and Viterna to present
their version of the incident. However, other than stating in another of his arguments that the jury
“only heard one version of events,” Hoscheit does not detail the nature the testimony of the
witnesses he wanted his attorney to call or otherwise identify them. Id.
        In State v. Abdullah, 289 Neb. 123, 133, 853 N.W.2d 858, 867 (2014), the Nebraska
Supreme Court stated:
        Our case law is clear that were this a motion for postconviction relief, Abdullah 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


                                                - 12 -
       a discovery hearing to determine if anywhere in this wide world there is some evidence
       favorable to defendant’s position.’”

However, Abdullah goes on to state:
              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.
     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.

State v. Abdullah, 289 Neb. at 133-34, 853 N.W.2d at 867. The Supreme Court found that the
defendant’s vague assertion referring to “‘at least two’ witnesses” was “little more than a
placeholder.” The Supreme Court concluded that the defendant failed to make sufficiently specific
allegations of deficient conduct relating to the alleged failure to call witnesses. See, also, State v.
Lee, 304 Neb. 252, 282, 934 N.W.2d 145, 166 (2019) (appellate counsel must give on direct appeal
names or descriptions of uncalled witnesses forming basis of claim of ineffective assistance,
otherwise, potential postconviction court would be unable to identify whether claim based on
alleged failure to call particular witness was preserved on direct appeal; failure to call named
witness raised with sufficient specificity, claims concerning “adverse witnesses” not been
preserved); State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017) (defendant alleged attorney
should have called as character witnesses individuals he worked with and friends and relatives
who had seen him with victim prior to allegations; defendant’s descriptions were too broad and
indefinite to raise and preserve his allegations of deficient conduct).
        Here, unlike in Abdullah, Mora, and Lee (claim as to “adverse witnesses”) above, Hoscheit
has sufficiently identified the uncalled witnesses as the two individuals who were at the scene at
the time of his altercation with the officers. Although the substance of their testimony is not set
forth in his assignment of error or argument, given that this case was briefed pre-Mrza, the
allegations of deficient performance are sufficiently pled. See State v. Mrza, 302 Neb. 931, 926
N.W.2d 79 (2019). However, the record on appeal is insufficient to address this claim of ineffective
assistance of counsel.
                            (c) Failure to Produce Mitigating Evidence
        Hoscheit argues that he wanted to subpoena his phone calls made to the Pierce County
Sheriff’s Department (presumably some of the calls made to dispatch referenced in Viterna’s
testimony) as mitigating evidence and “further evidence that he was not trying to commit any of
the offenses charged.” Brief for appellant at 16. He argues that his attorney was ineffective because
this “mitigating evidence was neither sought nor offered as evidence” at trial. Id. The decision by
Hoscheit’s attorney not to offer this evidence involves issues of trial strategy, and the record is
insufficient to address this claim on direct appeal.




                                                - 13 -
                                    (d) Evidence of Self-Defense
        We have determined above that the evidence presented at trial did not support a jury
instruction on self-defense. Hoscheit argues that his attorney should have provided more evidence
to justify the requested self-defense instruction. Again, Hoscheit does not allege with any
specificity what additional evidence his attorney should have presented to support his self-defense
assertion. We conclude Hoscheit has failed to allege this claim of deficient performance with
sufficient particularity. See State v. Mora, supra.
                                        VI. CONCLUSION
        The district court did not err in refusing to give the requested self-defense jury instruction.
The evidence was sufficient to support Hoscheit’s convictions. Except for Hoscheit’s claim that
his attorney should have provided more evidence to justify the requested self-defense instruction,
which he failed to sufficiently plead, the record is insufficient to address Hoscheit’s other claims
of ineffective assistance of trial counsel on direct appeal.
                                                                                            AFFIRMED.




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