State v. Ware, A-16-1168

Background

On Nov. 18, 2015, Misty Parker reported that Scott L. Ware pulled a pistol from a van, aimed it near her head, and said, “I have one for you and I have one for West. Watch,” causing her to flee and report the incident.
Parker identified Ware, described his clothing, the van, and the pistol. Officers found a matching van near Ware’s residence and, with consent to search, recovered a black leather jacket containing a .32 caliber revolver.
Ware was charged with terroristic threats (Neb. Rev. Stat. § 28-311.01) and use of a deadly weapon to commit a felony (Neb. Rev. Stat. § 28-1205). After a jury trial Ware was convicted on both counts.
The district court sentenced Ware to 5–7 years for the weapon offense (Class IC, mandatory minimum 5 years) and 2 years for terroristic threats (Class IIIA), to run consecutively.
On appeal Ware challenged sufficiency of the evidence/direct verdict denial, asserted excessive sentences, and claimed ineffective assistance of counsel for alleged investigative and trial failures.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency / directed verdict	Ware argued evidence was insufficient and trial court should have directed a verdict.	State relied on Parker’s eyewitness testimony, corroborating officer observations, and recovered gun/jacket matching Parker’s description.	Affirmed convictions: evidence was sufficient and directed verdict properly denied.
Sentencing — form of terroristic threats sentence	Ware argued sentence excessive; did not contest form initially.	State argued district court erred by imposing a determinate 2‑year term for Class IIIA when law required an indeterminate term given consecutive sentencing with a Class IC.	Vacated terroristic threats sentence and remanded for resentencing to impose an indeterminate sentence under § 29-2204.02(4).
Sentencing — excessive for weapon offense	Ware argued overall punishment excessive; court gave minimum mandatory 5 years.	State noted sentence was within statutory range and mandatory.	Affirmed 5–7 year sentence for use of a deadly weapon; no abuse of discretion.
Ineffective assistance of counsel	Ware claimed counsel failed to investigate scene/interview witnesses and neglected to emphasize Exhibit 28’s exculpatory value.	State argued claims were speculative, not particularized, and trial strategy was reasonable; record showed counsel used Exhibit 28 and argued discrepancies to jury.	Denied: record shows no deficient performance or prejudice; claims insufficiently specific for direct‑appeal relief.

Key Cases Cited

State v. Jedlicka, 297 Neb. 276 (discussing sufficiency review and deference to factfinder)
State v. Duncan, 293 Neb. 359 (preservation and review of renewed directed‑verdict motions)
State v. Chacon, 293 Neb. 203 (applying § 29‑2204.02(4) and vacating determinate sentence where indeterminate term required)
Strickland v. Washington, 466 U.S. 668 (establishing deficient performance and prejudice test for ineffective assistance of counsel)
State v. Mendez‑Osorio, 297 Neb. 520 (standards for resolving ineffective assistance claims on direct appeal)