State v. Wheeler, 989 N.W.2d 728

Background

Defendant January T. Wheeler was charged with first-degree assault, use of a firearm to commit a felony, and possession of a firearm by a prohibited person for events occurring on or about December 6, 2020.
Victim Brandon "Tank" Wagner and Kristian "Slim" Hespen testified that Wheeler pointed and later handed a tan Glock with an extended magazine to Slim after Wagner was shot; both witnesses also said they had seen the Glock at Wheeler’s apartment before the shooting and that Wheeler was known to carry a gun.
Police later recovered the Glock in a different location and forensic testing found Wheeler’s blood inside the barrel; the jury acquitted Wheeler of assault and use-of-firearm charges but convicted him of possession by a prohibited person; district court sentenced him to 25–30 years.
Wheeler moved pretrial for disclosure of any rule 404 evidence; the State disclosed none and maintained none applied; trial counsel did not object when Tank and Slim testified about prior sightings of the Glock or Wheeler’s reputation for carrying a gun.
On direct appeal Wheeler argued his trial counsel was ineffective for failing to object under Neb. Rev. Stat. § 27-404 to (1) reputation testimony and (2) testimony about prior observations of the Glock; the Nebraska Court of Appeals affirmed, and Wheeler sought further review.
The Nebraska Supreme Court affirmed the Court of Appeals: it assumed counsel was deficient as to reputation testimony but found no prejudice; it held testimony about prior observations of the distinctive Glock was circumstantial evidence of the charged possession offense (not an "other act" under rule 404) and thus not objectionable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Counsel ineffective for failing to object to reputation testimony (rule 404(1))	Wheeler: testimony that he was "known to carry" a gun was improper propensity evidence and should have been excluded.	State: testimony either falls outside rule 404 or is cumulative and harmless given other evidence.	Court assumed deficiency but found no prejudice — testimony was cumulative (Slim gave similar testimony) and other competent evidence (ID testimony, blood in barrel) supported conviction.
Counsel ineffective for failing to object to testimony that witnesses previously saw the Glock at Wheeler’s apartment (rule 404(2))	Wheeler: timing vague; prior sightings constituted other bad acts and required 404(2) analysis and procedural safeguards.	State: testimony was circumstantial evidence of possession (a continuing offense), not an "other act" raising propensity.	Court held prior observations of the distinctive Glock tended to prove an element of the possession charge (circumstantial evidence, not 404(2) other-act propensity evidence); counsel not deficient.
Whether precedent (State v. Freemont) requires treating prior possession testimony as 404(2) evidence	Wheeler: relies on Freemont to argue prior possession testimony is an "other act."	State: Freemont limited or distinguishable; possession can be a continuing offense, so prior possession may directly prove charged possession.	Court disapproved parts of Freemont’s majority reasoning as applied to possession charges and endorsed the view that prior observations of the specific firearm can be circumstantial proof of possession.

Key Cases Cited

State v. Miranda, 313 Neb. 358 (Neb. 2023) (standards for resolving ineffective-assistance claims on direct appeal)
State v. Freemont, 284 Neb. 179 (Neb. 2012) (prior decision treating prior possession testimony as other-act evidence; discussed and limited here)
State v. Salvador Rodriguez, 296 Neb. 950 (Neb. 2017) (discussed Freemont's scope; Court revisits that limitation)
State v. Cullen, 292 Neb. 30 (Neb. 2016) (distinguished prior-act evidence and used in analysis of continuity/connection)
State v. Keadle, 311 Neb. 919 (Neb. 2022) (definition and use of circumstantial evidence)