State v. Rowe, A-16-1050

On Sept. 8, 2015, William A. Rowe drove Milea Ixta to Menard’s; Ixta shoplifted security cameras and was detained by two loss-prevention officers. Rowe arrived in a red Land Rover, lifted his shirt to reveal an object in his waistband, and fled with Ixta when she abandoned the stolen property.
Loss-prevention officers and Ixta testified they saw a handgun handle in Rowe’s waistband; no firearm was recovered when police later arrested Rowe and found the stolen cameras in his car.
Rowe was charged with attempted robbery (reduced from robbery), terroristic threats, use of a firearm to commit a felony, and aiding/abetting theft by shoplifting; a jury convicted him on all counts.
At trial the prosecutor made several contested closing-argument remarks (including calling some defense themes a “red herring” and referring to witness proffer agreements); defense objections were overruled or sustained in part, but no mistrial was requested.
Rowe moved for a new trial and challenged jury instructions, sufficiency of evidence, prosecutorial misconduct, and sentencing; the district court denied relief and imposed concurrent and consecutive sentences. The Court of Appeals affirmed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Rowe)	Held
Prosecutorial misconduct in closing	Remarks were fair comment on evidence and credibility; not improper	Prosecutor vouched for witness, attacked defense tactics as "red herring," and misstated self-defense absence	No misconduct or plain error; most objections waived for failure to request mistrial; comments permissible or harmless
Jury instructions (content & timing)	Instructions given collectively cured any impropriety; followed law	Certain pattern language changed; instruction on unanimity for terroristic-threat intent unclear; no curative instruction after objection	Instructions read as a whole were correct; no prejudicial error; unanimity issue immaterial because other felony supported weapon count
Sufficiency of evidence for terroristic threats & use of firearm	Evidence (witness testimony, context, display/brandishing) supports convictions	Lifting shirt without firearm found is not "use"; no words/threats made so terroristic threats unsupported	Viewing evidence favorably to State, brandishing/display qualifies as "use"; terroristic threats proven (intent or reckless)
Procedural claims (motions, verdict form, sentencing)	Court held proper hearings, addressed motions, and sentencing corrected misdemeanor classification	Court erred in handling objections, verdict form, and new-trial procedure; sentence excessive	Claims waived, unargued, or without merit; sentencing/sentence presentation adequate; no reversible error

State v. Dubray, 289 Neb. 208 (discusses prosecutorial misconduct standard and limits on argument) (Neb. 2014)
State v. Nolan, 292 Neb. 118 (permitted vigorous argument distinguishing tactical diversion from attacking counsel) (Neb. 2015)
State v. Barfield, 272 Neb. 502 (improper insinuation that defense counsel are liars is highly prejudicial) (Neb. 2006)
State v. Garza, 256 Neb. 752 ("use" of a firearm requires active employment such as brandishing; adopts Bailey rationale) (Neb. 1999)
Bailey v. United States, 516 U.S. 137 ("use" requires active employment—brandishing, displaying, firing, etc.) (U.S. 1995)
State v. Pester, 294 Neb. 995 (standard for sufficiency of the evidence in criminal convictions) (Neb. 2016)