State v. McClain

STATE v. McCLAIN 	537
Cite as 285 Neb. 537
opinion. Although our reasoning differs from that of the district
court, the entry of judgment in favor of Experian was not error.
Accordingly, we affirm.
A ffirmed.
StAte of NebrASkA, Appellee, v.
doNtAviS mcclAiN, AppellANt.
827 N.W.2d 814
Filed March 22, 2013. 	No. S-12-256.
1. Expert Witnesses: Appeal and Error. The standard for reviewing the admis-
sibility of expert testimony is abuse of discretion.
2. Trial: Expert Witnesses: Pretrial Procedure: Notice. A challenge to the admis-
sibility of evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland
Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), should take the form of a concise
pretrial motion. It should identify, in terms of the Daubert and Schafersman fac-
tors, what is believed to be lacking with respect to the validity and reliability of
the evidence and any challenge to the relevance of the evidence to the issues of
the case.
3. Trial: Evidence: Appeal and Error. To preserve a challenge on appeal to the
admissibility of evidence on the basis of Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), a litigant must object on
that basis and the objection should alert the trial judge and opposing counsel as
to the reasons for the objections to the evidence.
4. Motions to Suppress: Confessions: Constitutional Law: Appeal and Error.
In reviewing a trial court’s ruling on a motion to suppress, whether based on a
claimed violation of the Fourth Amendment or on its alleged involuntariness, an
appellate court applies a two-part standard of review. Regarding historical facts,
the appellate court reviews the trial court’s findings for clear error. Whether those
facts meet constitutional standards, however, is a question of law, which the
appellate court reviews independently of the court’s determination.
5. Confessions: Police Officers and Sheriffs. Interrogation necessarily includes
elements of psychological pressure which are meant to elicit a confession. The
question is whether the techniques used are so coercive as to overbear the sus-
pect’s will.
6. Jury Instructions: Appeal and Error. Whether a court’s jury instructions were
correct is a question of law. On a question of law, an appellate court is obligated
to reach a conclusion independent of the determination of the court below.
7. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a suf-
ficiency of the evidence claim, whether the evidence is direct, circumstantial, or a
combination thereof, the standard is the same: An appellate court does not resolve
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

538 	285 NEBRASKA REPORTS
conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evi-
dence; such matters are for the finder of fact. The relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.
8. Effectiveness of Counsel: Records: Evidence: Appeal and Error. A claim of
ineffective assistance of counsel need not be dismissed merely because it is made
on direct appeal. The determining factor is whether the record is sufficient to
adequately review the question.
9. Effectiveness of Counsel: Evidence: Appeal and Error. An appellate court
will not address an ineffective assistance of counsel claim on direct appeal if it
requires an evidentiary hearing.
Appeal from the District Court for Douglas County: W.
mArk AShford, Judge. Affirmed.
Sean M. Conway, of Dornan, Lustgarten & Troia, P.C.,
L.L.O., for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
heAvicAN, c.J., Wright, coNNolly, StephAN, mccormAck,
miller-lermAN, and cASSel, JJ.
coNNolly, J.
I. NATURE OF THE CASE
The State charged Dontavis McClain with first degree felony
murder, use of a deadly weapon to commit a felony, and con-
spiracy to commit robbery. These charges stemmed from the
robbing and killing of a pizza delivery worker. The jury found
McClain guilty on all counts. McClain argues that the court
erred in receiving into evidence his confession and certain
DNA reports and related testimony. McClain also argues that
the court incorrectly instructed the jury, that there was insuffi-
cient evidence to support his convictions, and that he received
ineffective assistance of counsel. For various reasons, we find
no merit to McClain’s assigned errors. We affirm.
II. BACKGROUND
1. the crimeS ANd iNveStigAtioN
On a Friday in September 2010, just after 11 p.m., the
Douglas County sheriff’s office received a “down[ed] party”

STATE v. McCLAIN 	539
Cite as 285 Neb. 537
call at an apartment complex in Omaha, Nebraska. An offi-
cer responded to the call and saw a man lying on the ground,
not breathing, with blood on his arm. The officer radioed for
an ambulance and then began cardiopulmonary resuscitation.
The ambulance arrived minutes later, took over the man’s
care, and eventually transported him to the hospital. The man,
Christopher Taylor, never revived. The autopsy showed that
Taylor had been stabbed twice in the back, puncturing a
lung and kidney. He died from hemorrhaging and complete
blood loss.
As soon as the ambulance arrived, the responding officer
secured the scene, notified his supervisor, and requested a
crime scene unit to process the area. The crime scene unit pho-
tographed the scene and bagged items of potential evidentiary
value. The crime scene primarily included one apartment in the
complex and the immediately surrounding area. The officers
canvassed the area for witnesses and possible leads.
Certain items found at the scene—such as a pizza-warming
bag and a receipt for pizza—led the officers to a nearby res-
taurant. The officers discovered that Taylor worked at that res-
taurant as a pizza delivery worker. The shift manager provided
them with the telephone number from which the order had
been placed for the delivery to the apartment complex. The
officers subpoenaed the owner information and call logs for
that telephone number. The resulting information showed that
“M. Fountain,” later identified as Michelle Fountain, owned
the telephone. Followup investigation revealed that Michelle
Fountain’s son Larry Fountain usually used the telephone.
After speaking with Larry Fountain (hereinafter Fountain),
the officers discovered that he had loaned his telephone to
Bryton Gibbs, who also lived in the apartment complex, and
another man, whom he referred to as “Mississippi,” to order
pizza. Fountain had overheard Gibbs and “Mississippi” plan-
ning to rob a pizza delivery worker. The officers then searched
Gibbs’ home and interviewed Gibbs’ mother, who told them
that her son had been “hanging out” with Marcus Robinson
and that Robinson had been driving Gibbs around that day.
The officers then interviewed Robinson, who confirmed that
he had driven Gibbs and “Mississippi” around that day, and he

540 	285 NEBRASKA REPORTS
told them that he had overheard “Mississippi” tell Gibbs that
“[y]ou didn’t have to cut him.” Both Fountain and Robinson
gave the officers physical and clothing descriptions of Gibbs
and “Mississippi.”
On Sunday, September 12, 2010, the Douglas County sher-
iff’s office received information that Gibbs and “Mississippi”
were at a church at 31st and Lake Streets. Officers went there
and arrested them, identifying both Gibbs and “Mississippi”
based on prior knowledge and their descriptions. The officers
then identified “Mississippi” as McClain from his Mississippi
identification card and driver’s license.
2. mcclAiN’S iNterrogAtioN,
triAl, ANd SeNteNceS
That same day, the officers placed McClain in an interro-
gation room. McClain signed a consent form for the officers
to collect physical evidence from him. McClain also waived
his Miranda rights and agreed to talk to the officers. After
initially denying any involvement in Taylor’s death, McClain
confessed to planning and executing the robbery with Gibbs
and said that Gibbs had stabbed Taylor. Before trial, McClain
moved to suppress this evidence, but the district court denied
the motion. The court concluded that the officers had probable
cause to arrest McClain, that McClain’s confession was volun-
tary, and that the interrogator had properly informed him of his
Miranda rights.
The State charged McClain with first degree felony murder,
use of a deadly weapon to commit a felony, and conspiracy
to commit robbery. At trial, the State presented testimony
from various officers regarding the circumstances surround-
ing Taylor’s death, the processing of the crime scene, and the
investigation which led to McClain’s arrest. The State also
presented testimony from DNA experts which purported to
link McClain to the murder. McClain objected to this evidence
under Neb. Rev. Stat. § 27-403 (Reissue 2008) and on general
foundation grounds. McClain claimed that the DNA laboratory,
because of a recent change in protocol, currently calculated
the statistical likelihood of a DNA match, when before the
change, it would have simply determined that the evidence was

STATE v. McCLAIN 	541
Cite as 285 Neb. 537
inconclusive. McClain argued that there was no explanation
for the change in protocol, and so the court should exclude the
evidence. The court overruled the objection. The State also pre-
sented testimony from Fountain and Robinson, among others,
which identified McClain as one of the people involved in the
robbing and killing of Taylor.
McClain’s defense rested primarily on attacking the cred-
ibility of the State’s witnesses, emphasizing the relative lack of
physical evidence linking McClain to Taylor’s death (in con-
trast to the wealth of evidence linking Gibbs), and arguing that
McClain’s confession should be given little weight because
it resulted from coercion and underhanded tactics. McClain
also offered testimony from one witness which seemed to
indicate that another individual might have been involved in
the crimes, and not McClain. At the end of trial, the jury con-
victed McClain on all counts. The court sentenced McClain to
life to life in prison for the murder conviction, 1 to 50 years
in prison for the use of a deadly weapon conviction, and 10
to 10 years in prison for the conspiracy conviction. The court
ordered McClain to serve the 10-to-10-year prison sentence
concurrently with the life-to-life prison sentence, while the
court ordered him to serve the 1-to-50-year prison sentence
consecutively to the others.
III. ASSIGNMENTS OF ERROR
McClain alleges, consolidated and restated, that the court
erred in (1) admitting certain DNA evidence, (2) overruling
his motion to suppress evidence of his interrogation, (3) failing
to instruct the jury regarding unlawful manslaughter, and (4)
finding that there was sufficient evidence to convict him of the
crimes charged. McClain also alleges that he received ineffec-
tive assistance of counsel.
IV. ANALYSIS
1. dNA evideNce
A DNA report and accompanying testimony purported to
link McClain to the crimes. The DNA evidence indicated that
McClain was not excluded as a partial contributor to DNA
found on the back seat of the getaway car and that Taylor was

542 	285 NEBRASKA REPORTS
not excluded as a partial contributor to DNA from apparent
blood found on McClain’s shoes, though the probabilities were
not definitive.
McClain objected to this evidence both before and during
trial. McClain noted that under an earlier testing protocol,
the DNA laboratory would not have reported the above prob-
abilities either because they fell below a certain threshold or
because the known and unknown DNA samples did not share
enough DNA markers. Under the earlier protocol, the labora-
tory would have simply determined that the DNA analysis
was inconclusive. Under the current testing protocol, however,
the DNA laboratory conducted and reported the probabil-
ity assessment.
McClain argues that the DNA evidence was inadmissible
under the Daubert/Schafersman1 framework. McClain argues
that the State’s DNA experts did not know the reason for
the change in protocol and so they could not provide ade-
quate foundation for the evidence. We conclude, however, that
McClain did not adequately preserve any Daubert/Schafersman
issue for appellate review and that the court did not otherwise
abuse its discretion in admitting this evidence.
(a) Standard of Review
[1] The standard for reviewing the admissibility of expert
testimony is abuse of discretion.2
(b) Analysis
[2,3] We have explained that all specialized knowledge,
including scientific knowledge, falls under the rules of Daubert/
Schafersman.3 We have also explained that, assuming timely
notice of proposed testimony is given,
[a] challenge to the admissibility of evidence under
Daubert and Schafersman should take the form of a
1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993); Schafersman v. Agland Coop, 262 Neb.
215, 631 N.W.2d 862 (2001).
2 State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
3 See State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).

STATE v. McCLAIN 	543
Cite as 285 Neb. 537
concise pretrial motion. It should identify, in terms of the
Daubert and Schafersman factors, what is believed to be
lacking with respect to the validity and reliability of the
evidence and any challenge to the relevance of the evi-
dence to the issues of the case.4
And “to preserve a challenge on appeal to the admissibility of
evidence on the basis of Daubert/Schafersman, a litigant must
object on that basis and the objection should alert the trial
judge and opposing counsel as to the reasons for the objections
to the evidence.”5
McClain did not meet these requirements. McClain filed a
pretrial motion in limine to exclude the DNA evidence under
Neb. Rev. Stat. §§ 27-401 through 27-403 (Reissue 2008).
The motion in limine did not use the language of Daubert/
Schafersman to attack the validity or reliability of the evi-
dence, but instead used the language of § 27-403 to argue
that the danger of unfair prejudice outweighed the evidence’s
probative value. Specifically, the motion stated in part: “That
any testimony regarding this statistical likelihood that someone
other than [McClain] contributed the genetic material is not
probative of identification, but could mislead the jury, confuse
the issues and is unduly prejudicial to [McClain] and is there-
fore inadmissible under Neb. Rev. Stat. §27-403.” That the
motion in limine contested the evidence’s admissibility only
under § 27-403 is made perfectly clear from the bill of excep-
tions, in which McClain’s trial counsel stated:
Well, Judge, I anticipate, prior to the State adducing DNA
evidence, filing a motion in limine not on a Daubert type
issue at all, but more on just a [§ 27-]403 issue based off
of what I would call a change in protocol . . . from the
Med Center DNA lab.
(Emphasis supplied.) Nor did McClain object under Daubert/
Schafersman at trial. Instead, McClain specifically noted that
his motion in limine was “just a [§ 27-]403 motion [and] not
4 State v. Huff, 282 Neb. 78, 116, 802 N.W.2d 77, 107 (2011) (emphasis
supplied).
5 State v. King, 269 Neb. 326, 333, 693 N.W.2d 250, 258 (2005) (emphasis
supplied).

544 	285 NEBRASKA REPORTS
a Daubert-type objection or anything like that.” And when the
State offered the DNA evidence at trial, McClain’s trial counsel
renewed his “objection based [only] on the motion in limine
previously discussed.”
It is true that, as pointed out at oral argument, McClain’s
trial counsel did include a general foundational objection
and explained that he took issue with the expert’s testimony
because the expert did not know the underlying reasons for
the change in protocol. But we do not read this as an objec-
tion under Daubert/Schafersman for there is nothing in that
objection which would have alerted the court or the State that
McClain was challenging the validity or reliability of the DNA
testing results. Instead, we read McClain’s general foundation
objection and argument in his brief as challenging whether the
State’s witness qualified as an expert because he did not know
why the protocol had changed.6
On this record, we find no merit to McClain’s objection to
the expert’s qualifications. The expert testified that the DNA
laboratory changed its protocol to conform to a national DNA
working group’s recommendations, that such recommendations
come out periodically and are from DNA experts, and that it
is the DNA laboratory’s general practice to discuss the recom-
mendations and decide whether to adopt them. And the witness
had lengthy qualifications and experience working with DNA
and the specific processes at issue. We cannot say the court
abused its discretion in determining that the witness was a
qualified expert on this issue and overruling McClain’s general
foundation objection. And McClain’s brief does not argue that
the court erred in admitting the evidence over his objection
under § 27-403. We find no abuse of discretion in the court’s
admitting this evidence.
2. motioN to SuppreSS
McClain argues that the court erred in admitting his con-
fession into evidence because (1) it resulted from an illegal
arrest and (2) it was not voluntary. The State rejoins that the
arrest was proper because the officers had probable cause
6 See Neb. Rev. Stat. § 27-702 (Reissue 2008).

STATE v. McCLAIN 	545
Cite as 285 Neb. 537
to arrest McClain and because McClain’s confession was
voluntary and not the product of any improper interroga-
tion techniques.
(a) Standard of Review
[4] In reviewing a trial court’s ruling on a motion to sup-
press, whether based on a claimed violation of the Fourth
Amendment or on its alleged involuntariness, we apply a two-
part standard of review. Regarding historical facts, we review
the court’s findings for clear error. Whether those facts meet
constitutional standards, however, is a question of law, which
we review independently of the court’s determination.7
(b) Analysis
McClain first argues that the officers lacked probable cause
to arrest him. And if that were the case, McClain asserts, his
subsequent confession was inadmissible because they obtained
it “‘“by exploitation of an illegal arrest.”’”8 We conclude, how-
ever, that the officers had probable cause to arrest McClain. As
such, the confession was not excludable as the product of an
illegal arrest.
Both the state and the federal Constitutions protect indi-
viduals against unreasonable searches and seizures by the
government.9 An arrest is a “seizure” of a person and must
be justified by probable cause.10 Probable cause to support a
warrantless arrest exists only if law enforcement has knowl-
edge at the time of the arrest, based on information that is
reasonably trustworthy under the circumstances, that would
cause a reasonably cautious person to believe that a suspect
has committed or is committing a crime.11 Probable cause is
a flexible, commonsense standard that depends on the totality
7 See, e.g., Bauldwin, supra note 2; State v. Scheffert, 279 Neb. 479, 778
N.W.2d 733 (2010).
8 See, e.g., State v. Ball, 271 Neb. 140, 153, 710 N.W.2d 592, 604 (2006).
9 See, U.S. Const. amend. IV; Neb. Const. art. I, § 7. See, also, State v.
McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
10 See McCave, supra note 9.
11 See id.

546 	285 NEBRASKA REPORTS
of the circumstances.12 We determine whether probable cause
existed under an objective standard of reasonableness, given
the known facts and circumstances.13 And when a court denies
a motion to suppress pretrial and again during trial on renewed
objection, we consider all the evidence, both from trial and
from the hearings on the motion to suppress.14
The court determined that McClain’s arrest was proper, and
we agree. Our review of the record shows that the officers had
probable cause to believe that McClain, referred to at the time
of the arrest only as “Mississippi,” had committed a crime.
The investigation revealed that Gibbs and “Mississippi” were
involved in the crimes. Both Fountain and Robinson gave
detailed physical and clothing descriptions for “Mississippi,”
as well as Gibbs, whom the officers also knew from previous
incidents. Although Fountain and Robinson were initially less
than truthful with the officers, the court found that the informa-
tion they provided “corroborated the physical evidence at the
crime scene and the events that occurred [around] the time that
the robbery and homicide occurred.” That implied finding of
credibility was not clearly erroneous. On the morning of the
arrest, the sheriff’s office received word that both Gibbs and
“Mississippi” were at a church and went to arrest them. The
officers noted that the man with Gibbs matched the physical
and clothing description of “Mississippi” and specifically that
both suspects were “dressed as [the officers] had been told they
would be.”
In sum, the officers knew that Gibbs and “Mississippi”
were involved in the crimes, that they had been together, and
that they were at the church. When the officers arrived at the
church, the man with Gibbs matched the physical and cloth-
ing description of “Mississippi” provided by Fountain and
Robinson. Because the officers had probable cause to arrest
“Mississippi,” later identified as McClain, his statements dur-
ing custody were not the product of an illegal arrest.
12 See id.
13 See id.
14 See Ball, supra note 8.

STATE v. McCLAIN 	547
Cite as 285 Neb. 537
McClain also argues that his confession was inadmissible
because it was involuntary. McClain asserts that the interroga-
tion room was physically intimidating, that the interrogator
was hostile and threatening, and that the interrogator impliedly
promised McClain leniency if he cooperated. After viewing the
interrogation, however, we conclude that McClain’s will was
not overborne and that his confession was voluntary.
The Due Process Clauses of both the state and the federal
Constitutions preclude admitting an involuntary confession
into evidence.15 The prosecution has the burden to prove by a
preponderance of the evidence that incriminating statements
by the accused were voluntarily given and not the product of
coercion.16 In making this determination, we apply a totality
of the circumstances test.17 Factors to consider include the
interrogator’s tactics, the details of the interrogation, and any
characteristics of the accused that might cause his or her will
to be easily overborne.18 Coercive police activity is a necessary
predicate to a finding that a confession is not voluntary.19
The court determined that McClain’s confession was vol-
untary, and after our review of the interrogation, we agree.
Certainly, the physical characteristics of the interrogation
room, specifically that it was small and windowless, are
one factor to consider.20 But the room was a seemingly stan-
dard interrogation room, with chairs and a desk, and was
not so inherently coercive as to render McClain’s confes-
sion involuntary.
[5] We also do not find the interrogator’s questioning tech-
niques to be improper. The officer raised his voice, pointed his
pen at McClain, shifted his chair closer to McClain during the
interrogation, and repeatedly used (in various ways) the phrase
15 See, U.S. Const. amend. XIV; Neb. Const. art. I, § 3; State v. Goodwin,
278 Neb. 945, 774 N.W.2d 733 (2009).
16 See Goodwin, supra note 15.
17 See id.
18 See id.
19 See id.
20 See, e.g., U.S. v. Murdock, 667 F.3d 1302 (D.C. Cir. 2012).

548 	285 NEBRASKA REPORTS
“cold blooded killer.” But interrogation necessarily includes
elements of psychological pressure which are meant to elicit a
confession.21 The question is whether the techniques used are
so coercive as to overbear the suspect’s will.22 Here, they were
not. Notably, the interrogation leading to the confession was
relatively short, lasting just over 11⁄2 hours. More important, the
video shows that McClain was intelligent and thoughtful, that
he was aware of why he was in the room, and that he too was
trying to get information, specifically the extent of the inter-
rogator’s knowledge about the crimes.
Nor are we convinced that the interrogator improperly prom-
ised McClain a benefit in exchange for his confession. Such
a promise may render a suspect’s confession involuntary and
inadmissible.23 But for that to be the case, “‘the benefit offered
to a defendant must be definite and must overbear his or
her free will,’” thus rendering the statement involuntary.24
Numerous cases demonstrate this principle. For example, in
State v. Mayhew,25 the county attorney told the defendant that
if he told the truth, the county attorney would recommend
that the court sentence the defendant concurrently with the
unrelated sentence the defendant was then serving. In State v.
Smith,26 the police officer interrogating the 15-year-old defend-
ant told him that if he confessed, the officer would try to get
the case transferred to juvenile court. In both cases, we held
that the resulting confessions were involuntary.27
This case is notably different from those. Here, at various
points, the interrogator said things like the following: “[I]t does
matter who did it”; “there’s a difference when you’re standing
up in front of the judge, who did it and didn’t do it”; “there’s
21 See U.S. v. Astello, 241 F.3d 965 (8th Cir. 2001).
22 See, Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d
1037 (1961); State v. Martin, 243 Neb. 368, 500 N.W.2d 512 (1993).
23 See Goodwin, supra note 15.
24 Id. at 961, 774 N.W.2d at 746.
25 State v. Mayhew, 216 Neb. 761, 346 N.W.2d 236 (1984).
26 State v. Smith, 203 Neb. 64, 277 N.W.2d 441 (1979).
27 See, Mayhew, supra note 25; Smith, supra note 26.

STATE v. McCLAIN 	549
Cite as 285 Neb. 537
a difference between who did the killing and who was just
there”; and “there’s also a difference between cooperating and
not cooperating.” These statements do not promise any defi-
nite benefit which could render McClain’s subsequent confes-
sion involuntary.
We agree with the court that McClain’s confession was vol-
untary. Although the interrogator exerted pressure on McClain,
the interrogator’s techniques were not improper. And we con-
clude that the interrogator did not improperly promise McClain
any definite benefit in exchange for his confession. This
assigned error has no merit.
3. Jury iNStructioNS
McClain argues that the court erred in failing to instruct the
jury on unlawful act manslaughter as a lesser-included offense
of felony murder. McClain’s argument, essentially, is that a
jury could have found McClain guilty of theft, which is not a
predicate felony for felony murder, rather than robbery. And if
the jury found him guilty of theft, then he could be guilty only
of unlawful act manslaughter and not of felony murder.
(a) Standard of Review
[6] Whether a court’s jury instructions were correct is a
question of law.28 On a question of law, we are obligated to
reach a conclusion independent of the determination of the
court below.29
(b) Analysis
We addressed this same argument in State v. Schroeder.30
And like Schroeder, even assuming that unlawful act man-
slaughter is a lesser-included offense of felony murder, the
evidence did not warrant such an instruction.
A court must instruct on a lesser-included offense if “(1)
the elements of the lesser offense . . . are such that one cannot
commit the greater offense without simultaneously committing
28 See, e.g., State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).
29 See, e.g., id.
30 State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010).

550 	285 NEBRASKA REPORTS
the lesser offense and (2) the evidence produces a rational basis
for acquitting the defendant of the greater offense and convict-
ing the defendant of the lesser offense.”31 A person commits
robbery if, with the intent to steal, he or she forcibly and by
violence, or by putting in fear, takes any money or personal
property from another person.32 The various crimes of theft do
not contain this element of violence or fear, but are otherwise
similar insofar as the perpetrator deprives the victim of his or
her possessions.33
There is no rational basis upon which a jury could conclude
that McClain committed a theft rather than a robbery, because
McClain’s actions contained an element of violence or fear,
and most likely both. McClain admitted that he grabbed Taylor
from outside the apartment, pulled him in, and threw him to
the ground. McClain admitted that he heard Taylor repeatedly
ask what was going on. McClain said that Gibbs turned off the
lights, after which Gibbs stabbed Taylor and McClain took the
money from Taylor. A rational jury could not consider this to
be a simple theft. Therefore, the court correctly refused to give
an unlawful act manslaughter instruction, even assuming that it
was a lesser-included offense of felony murder.
4. SufficieNcy of the evideNce
McClain argues that the evidence was insufficient for the
jury to convict him of felony murder, use of a deadly weapon
to commit a felony, and conspiracy to commit robbery. We
disagree. There was ample evidence, most notably McClain’s
own confession, that he and Gibbs planned to and did rob
Taylor and that Taylor died after Gibbs stabbed him during
the robbery.
(a) Standard of Review
[7] In reviewing a sufficiency of the evidence claim, whether
the evidence is direct, circumstantial, or a combination thereof,
31 Id. at 216, 777 N.W.2d at 807.
32 See, Neb. Rev. Stat. § 28-324 (Reissue 2008); Schroeder, supra note 30.
33 See, Neb. Rev. Stat. §§ 28-509 to 28-518 (Reissue 2008 & Cum. Supp.
2012); Schroeder, supra note 30.

STATE v. McCLAIN 	551
Cite as 285 Neb. 537
the standard is the same: We do not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the
evidence; such matters are for the finder of fact.34 The relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.35
(b) Analysis
The thrust of McClain’s argument is that the State failed to
adduce sufficient evidence to convict McClain of the relevant
charges. In support of this argument, McClain attacks the
credibility of the State’s witnesses. He also notes the relative
lack of physical evidence tying McClain to the crimes and
that a witness for McClain cast doubt on his involvement in
the crimes. McClain’s argument essentially asks us to resolve
conflicts in the evidence, pass on the credibility of witnesses,
and reweigh the evidence, which we will not do.36 We ask only
whether a rational trier of fact could have found the essen-
tial elements of the crimes beyond a reasonable doubt.37 The
answer is yes.
To prove felony murder, as relevant here, the State had to
prove that McClain killed “another person . . . in the perpetra-
tion of or attempt to perpetrate any . . . robbery.”38 The record
shows that the State prosecuted McClain under an aider or
abettor theory. A person who aids or abets “another to commit
any offense may be prosecuted and punished as if he were
the principal offender.”39 “[A]n alleged aider or abettor can
be held criminally liable as a principal if it is shown that the
aider and abettor knew that the perpetrator of the act pos-
sessed the required intent or that the aider and abettor himself
34 See State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012).
35 See id.
36 See id.
37 See id.
38 Neb. Rev. Stat. § 28-303 (Reissue 2008).
39 Neb. Rev. Stat. § 28-206 (Reissue 2008).

552 	285 NEBRASKA REPORTS
or herself possessed such intent.”40 The required intent was
the intent to commit the underlying felony—robbery—rather
than the intent to kill.41 So if there was sufficient evidence for
a jury to conclude beyond a reasonable doubt that McClain
intended to rob Taylor and that Taylor died “in the perpetra-
tion of or attempt to perpetrate” the robbery, then regardless
who actually stabbed him,42 the felony murder conviction
must stand.
A rational trier of fact could find beyond a reasonable
doubt that McClain intended to rob Taylor. A person commits
robbery if, with the intent to steal, he or she forcibly and by
violence, or by putting in fear, takes any money or personal
property from another person.43 McClain admitted to intend-
ing to steal from Taylor during his confession, and the record
clearly demonstrates that he and Gibbs took Taylor’s property
through force or violence, or by putting Taylor in fear. A ratio-
nal trier of fact could also infer McClain’s intent from testi-
mony demonstrating that he acted in concert with Gibbs. For
example, Fountain testified that he overheard Gibbs say “we
should rob this pizza man” with McClain nearby, Robinson
testified that he drove Gibbs and McClain away from the
crime scene, and another witness testified that McClain told
him afterward that Gibbs had made a “rookie mistake.” And,
of course, a rational trier of fact could also find beyond a
reasonable doubt that Taylor died during the perpetration of
the robbery.
To prove that McClain was guilty of using a deadly weapon
to commit a felony, the State had to prove that McClain used a
deadly weapon, such as a knife, to commit a felony.44 In State
40 State v. Mantich, 249 Neb. 311, 324, 543 N.W.2d 181, 191 (1996).
41 See Mantich, supra note 40.
42 See, e.g., State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991); State v.
Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982); Garcia v. State, 159 Neb.
571, 68 N.W.2d 151 (1955). See, also, U.S. v. Chanthadara, 230 F.3d 1237
(10th Cir. 2000).
43 See § 28-324.
44 See Neb. Rev. Stat. § 28-1205 (Cum. Supp. 2012).

STATE v. McCLAIN 	553
Cite as 285 Neb. 537
v. Mantich,45 we explained that “one who intentionally aids and
abets the commission of a crime may be responsible not only
for the intended crime, if it is in fact committed, but also for
other crimes which are committed as a natural and probable
consequence of the intended criminal act.” In Mantich, the
defendant was one of several people who “kidnapped, robbed,
and terrorized” the victim at gunpoint.46 We noted that “using
a firearm to commit these acts [was] a natural and probable
consequence of the kidnapping, robbery, and terrorizing” of
the victim.47 And as the defendant was an aider and abettor of
those criminal acts, he “could properly be convicted of using
a firearm to commit a felony even if the jury believed that he
was unarmed.”48
The same reasoning applies here. McClain and Gibbs robbed
Taylor, and Taylor died during the perpetration of the robbery.
The record shows that McClain intended to rob Taylor, that
Gibbs stabbed Taylor with a knife, and that Taylor later died
from those wounds. As McClain was an aider and abettor of
those criminal acts, a rational trier of fact could properly find
beyond a reasonable doubt that McClain was guilty of using
a deadly weapon to commit a felony even if McClain did not
actually use the knife.
Finally, to prove McClain had conspired to commit a rob-
bery, the State had to prove that McClain intended to promote
or facilitate the robbery, that he agreed with one or more
persons to commit the robbery, and that McClain, or a cocon-
spirator, committed an overt act furthering the conspiracy.49
McClain admitted that he agreed with Gibbs to rob Taylor,
and they obviously committed an overt act furthering the con-
spiracy since they actually robbed Taylor. A rational jury could
find these essential elements beyond a reasonable doubt. This
assigned error has no merit.
45 Mantich, supra note 40, 249 Neb. at 327, 543 N.W.2d at 193.
46 Id.
47 Id. at 327-28, 543 N.W.2d at 193.
48 Id. at 328, 543 N.W.2d at 193.
49 See, Neb. Rev. Stat. § 28-202 (Reissue 2008); State v. Nave, 284 Neb. 477,
821 N.W.2d 723 (2012).

554 	285 NEBRASKA REPORTS
5. iNeffective ASSiStANce
of couNSel
[8,9] Finally, McClain alleges several instances of ineffec-
tive assistance of counsel. A claim of ineffective assistance of
counsel need not be dismissed merely because it is made on
direct appeal.50 The determining factor is whether the record
is sufficient to adequately review the question.51 The logi-
cal extension of that principle is that we will not address an
ineffective assistance of counsel claim on direct appeal if it
requires an evidentiary hearing.52
McClain alleges, restated, four different ineffective assist-
ance of counsel claims as follows: Trial counsel failed to (1)
adequately communicate with McClain; (2) properly attack the
credibility of the State’s witnesses, including that one witness
was improperly coached; (3) conduct depositions of witnesses
who were either codefendants or eyewitnesses; and (4) peremp-
torily strike a juror during voir dire when the juror expressed
bias toward Taylor. We conclude that the record is insufficient
to address the first three claims, but is sufficient to address
the fourth.
In his fourth claim, McClain argues that one juror expressed
bias toward Taylor and that his trial counsel should have struck
her from the jury. McClain argues that his counsel’s failure to
do so prejudiced him because the juror was more likely to find
him guilty and the trial would have turned out differently had a
different individual been on the jury.
To prevail on a claim of ineffective assistance of counsel
under Strickland v. Washington,53 McClain must show that his
counsel’s performance was deficient and that this deficient
performance actually prejudiced his defense.54 The record is
sufficient to address this claim and shows neither deficient
50 State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
51 See id.
52 See id.
53 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
54 See State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).

STATE v. McCLAIN 	555
Cite as 285 Neb. 537
performance 	nor 	prejudice 	from 	trial 	counsel’s 	failure 	to
peremptorily strike this juror.
During voir dire, the juror said that she had previously
read a newspaper article explaining that “a pizza delivery
person was killed, I believe, by three gentlemen in an apart-
ment complex. I’m not sure how. That’s basically all I know.”
When asked whether “there [was] any other information that
[she] recall[ed] from that news article about what was going
on or the people that allegedly were involved,” she replied:
“Yes. The gentleman was I believe the father [sic] and was a
Christian person who gave some of his money to charities.”
But the juror, again in response to questioning, explained that
if she were selected, she would require the State to meet its
burden of proof and to provide her evidence to make a deci-
sion. She stated that she would put aside anything that she had
heard in the prior weeks and months and rely on the evidence
and instructions during trial. Finally, she explained that she had
read only the one article, that she had never heard McClain’s
name in connection with the incident, and that she had not
formed an opinion as to McClain’s guilt or innocence. This
claim has no merit.
V. CONCLUSION
We conclude that McClain did not properly preserve any
alleged error under Daubert/Schafersman and that the court did
not otherwise abuse its discretion in admitting the State’s DNA
evidence. We also conclude that the court properly admitted
McClain’s confession into evidence because the officers had
probable cause to arrest him and because his confession was
voluntary. We find no merit to McClain’s arguments that the
court improperly instructed the jury or that there was insuf-
ficient evidence to sustain the jury’s verdicts. Though the
record is insufficient to review the majority of McClain’s inef-
fective assistance of counsel claims, the record is sufficient
to conclude that his counsel was not ineffective for failing
to peremptorily strike one of the jurors during voir dire. We
affirm McClain’s convictions and sentences.
A ffirmed.