State v. Warlick, 308 Neb. 656

Background

On July 26, 2018, a deputy observed a vehicle on I‑80 in York County, initiated a stop in York County, and the vehicle stopped a short distance into Seward County; a search uncovered ~4 lbs of marijuana under the spare tire and a handgun in a drawstring bag. Warlick was the front‑seat passenger.
The vehicle’s driver (Clark) and Warlick gave inconsistent accounts of their trip; the quantity/packaging of marijuana and masking agent suggested trafficking; the gun’s serial number showed it was stolen.
Warlick proceeded pro se at district‑court pretrial hearings, repeatedly waived appointment of counsel, sought time to hire private counsel (asked for 120 days; court set trial within ~72 days), and appeared without counsel on the trial date.
During trial the court recessed for noon; both defendants failed to return; after waiting the court found they had voluntarily absented themselves and proceeded in their absence.
The bench trial resulted in convictions on seven counts (including possession with intent, possession of >1 lb marijuana, failure to obtain a drug tax stamp, weapons offenses, and carrying a concealed weapon). On appeal Warlick challenged venue, the court’s handling of counsel waivers, proceeding after his absence, sufficiency of evidence (possession and carrying), and admissibility of prior convictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Venue	State: York County proper because vehicle passed through York County under §29‑1301.02	Warlick: venue improper because arrest/search occurred in Seward County and officer exceeded jurisdiction	Held for State—York County was proper venue under the motor‑vehicle venue statute; place of arrest is not a venue factor
Right to counsel at trial start	State: Warlick knowingly and intelligently waived counsel pretrial; court warned him and need not re‑advise at trial	Warlick: court erred by proceeding without appointing or re‑inquiring about counsel on trial day; he had sought more time to hire counsel	Held for State—waiver was valid, no duty to appoint standby counsel, no new colloquy required absent showing of changed circumstances or indigency
Right to be present / proceeding after absence	State: Warlick voluntarily absented himself after recess; court made reasonable effort and could proceed	Warlick: absence was unexplained; court should have investigated, continued, or secured his presence before continuing	Held for State—failure to return from recess by a defendant on bail is voluntary absence and waives right to be present; court’s response was reasonable; no new trial required
Sufficiency of evidence — possession and weapons	State: circumstantial evidence (quantity, packaging, masking agent, inconsistent stories, travel distance, firearm accessible from back seat, §28‑1212 prima facie rule) ties Warlick to drugs and firearm	Warlick: items were not on his person; in driver’s vehicle and in cargo area under spare tire; gun in separate bag with driver’s hair product; insufficient to show control or immediate access	Held partly for State—evidence sufficient for narcotics, possession during felony, prohibited‑person, and stolen‑firearm convictions; but insufficient for carrying a concealed weapon (§28‑1202) because weapon was not on or about his person or within immediate reach
Admissibility of prior convictions to prove "prohibited person"	State: certified convictions establish felon status; post‑Gideon convictions carry presumption of regularity	Warlick: exhibits do not show he had counsel or validly waived counsel at time of prior pleas, so they’re inadmissible	Held for State—post‑Gideon convictions are presumptively regular; exhibits were admissible and Warlick bore burden to rebut presumption

Key Cases Cited

Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel for indigent defendants facing imprisonment)
Burgett v. Texas, 389 U.S. 109 (1967) (prior convictions may implicate Sixth Amendment in limited contexts)
Parke v. Raley, 506 U.S. 20 (1992) (clarifies Burgett; limits its application)
State v. Vann, 306 Neb. 91 (Neb. 2020) (post‑Gideon presumption of regularity for prior convictions; defendant bears burden to show lack of counsel)
State v. Garza, 256 Neb. 752 (Neb. 1999) (distinguishes "carrying" a weapon—actual/within immediate control—from constructive possession)
State v. McGee, 282 Neb. 387 (Neb. 2011) (factors supporting passenger’s constructive possession in motor‑vehicle drug cases)
State v. Zlomke, 268 Neb. 891 (Neb. 2004) (exemplary procedures when a defendant disappears during trial)
State v. Saccomano, 218 Neb. 435 (Neb. 1984) (weapon concealed on or about person must be conveniently accessible and within immediate reach)