State v. Dap
315 Neb. 466
Neb.2023Background
- Shortly after midnight on January 2, 2022, neighbor Tara Fugate heard loud noises, screaming, and two gunshot-like sounds; she looked out and saw Dap on an exterior stair landing holding an object and yelling threats such as “next time I won’t miss you.”
- Officers found a .22-caliber shell casing on the concrete near the stair handrail where Fugate saw Dap, and a .22 shell casing plus a hole in the living-room ceiling of the apartment into which Dap ran; a wallet containing Dap’s identification was found in that apartment; no firearm was recovered.
- Dap refused officers’ orders at the scene, was charged, and—after waiving a jury—was convicted by the court of possession of a firearm by a prohibited person, unlawful discharge of a firearm, use of a deadly weapon to commit a felony, and obstructing a peace officer.
- Dap moved for a new trial (alleging insufficiency of evidence and irregularity), which the trial court denied; he appealed raising (1) sufficiency of evidence for possession and unlawful discharge, (2) abuse of discretion in denying the new trial, (3) ineffective assistance of trial counsel (failure to review discovery, failure to depose/investigate, advising him not to testify), and (4) cumulative error.
- The Nebraska Supreme Court affirmed: it held circumstantial evidence was sufficient to support the possession and unlawful-discharge convictions, found no abuse in denying a new trial, and determined the ineffective-assistance claims were either insufficiently pled or not reviewable on direct appeal; cumulative-error relief was denied.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Dap) | Held |
|---|---|---|---|
| Sufficiency of evidence: possession of firearm and unlawful discharge at an occupied dwelling | Circumstantial evidence (shots heard, Fugate’s sighting of Dap with an object, casings found outside and inside, Dap’s ID in apartment, ceiling damage) permits conviction | Insufficient: no gun recovered and witness did not see a gun; evidence is circumstantial only | Affirmed: viewing evidence favorably to the State, a rational factfinder could find possession and unlawful discharge beyond a reasonable doubt |
| Motion for new trial (denial) | Trial court properly exercised discretion; evidence supports verdicts | Trial court erred—insufficient evidence and court comments constituted an irregular order or error of law | Affirmed: no abuse of discretion; judge’s bench comments permissible and not an irregular written order |
| Ineffective assistance of counsel (failure to review discovery, depose, investigate, advise not to testify) | Claims are insufficiently supported in the record for resolution on direct appeal; some matters may require postconviction fact‑finding | Counsel failed to communicate, investigate, depose witnesses, and advised Dap not to testify, causing prejudice | Not resolved on direct appeal: claims are either insufficiently pled or the record is inadequate to conclude deficient performance or prejudice; may be pursued in postconviction proceedings if appropriate |
| Cumulative error | No reversible errors to accumulate; bench trial presumes judge considered only competent evidence | Combined errors deprived Dap of a fair trial | Denied: in a bench trial the presumption that the judge considered competent evidence applies; no cumulative-error relief warranted |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance: deficiency and prejudice)
- State v. Vanderford, 312 Neb. 580 (Neb. 2022) (standard for sufficiency of evidence in criminal bench trials)
- State v. Allen, 314 Neb. 663 (Neb. 2023) (motion for new trial standard and ineffective-assistance principles on direct appeal)
- State v. Miranda, 313 Neb. 358 (Neb. 2023) (rules for raising ineffective-assistance claims on direct appeal)
- State v. Wells, 300 Neb. 296 (Neb. 2018) (discussion of firearm discharge and structural penetration in related context)
- State v. Anders, 311 Neb. 958 (Neb. 2022) (presumption in bench trials that the court considered only competent, relevant evidence)
- Estate of Block v. Estate of Becker, 313 Neb. 818 (Neb. 2023) (discussion of direct versus circumstantial evidence)