State v. Lopez

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. LOPEZ
Cite as 321 Neb. 118
State of Nebraska, appellee, v.
Brent P. Lopez, appellant.
___ N.W.3d ___
Filed April 3, 2026. 	No. S-24-504.
1. Jury Instructions. Whether jury instructions given by a trial court are
correct is a question of law.
2. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
3. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of counsel may be determined on direct appeal is a
question of law.
4. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively determine
whether counsel did or did not provide effective assistance.
5. Self-Defense. In Nebraska, self-defense and defense of others are both
statutorily defined affirmative defenses.
6. ____. To successfully assert the claim of self-defense under Neb. Rev.
Stat. § 28-1409 (Reissue 2016), a defendant must have a reasonable
and good faith belief in the necessity of using force and the force
used in defense must be immediately necessary and justified under
the circumstances.
7. Self-Defense: Evidence. When a defendant claims the use of deadly
force was justified under Neb. Rev. Stat. § 28-1409(4) (Reissue 2016),
there must be evidence that the defendant had a reasonable and good
faith belief in the necessity to use deadly force.
8. Self-Defense: Jury Instructions: Evidence. To warrant an instruc-
tion on self-defense, it is not enough to show that the defendant
subjectively believed in the need to use force for self-protection; the
defendant must produce evidence that this subjective belief was also
objectively reasonable.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:49 AM CDT

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STATE v. LOPEZ
Cite as 321 Neb. 118
9. Self-Defense: Jury Instructions. A defendant who is the initial aggres-
sor is not entitled to a self-defense instruction. Stated differently, it is
an essential element of a self-defense claim that the victim was the
first aggressor.
10. Self-Defense: Evidence: Proof. Since justification is an affirmative
defense, the defendant bears the initial burden to produce evidence that
supports the claimed defense, and once the defendant has produced suf-
ficient evidence to raise the defense, the issue becomes an element the
State is required to disprove.
11. ____: ____: ____. A criminal defendant need only adduce a slight
amount of evidence to satisfy the initial burden of raising the issue of
self-defense.
12. Self-Defense: Trial: Evidence: Proof. The evidence necessary to raise
an affirmative defense may be adduced either by the defendant’s wit-
nesses or in the State’s case in chief without the necessity of the
defendant’s presenting evidence.
13. Self-Defense: Jury Instructions: Evidence. A trial court must instruct
the jury on self-defense when there is any evidence adduced which
raises a legally cognizable claim of self-defense.
14. Self-Defense: Jury Instructions. Only where the jury could reasonably
find that the defendant’s use of force was justified should the trial court
instruct the jury on self-defense.
15. Self-Defense: Jury Instructions: Evidence. To support giving a justi-
fication instruction, there must be at least some evidence from which a
reasonable jury could find that each element of the justification defense
has been met.
16. ____: ____: ____. It is only when the evidence does not support a
legally cognizable claim of self-defense, or when the evidence is so
lacking in probative value that it constitutes a failure of proof regarding
one or more elements of the defense, that a trial court may properly
refuse to instruct a jury on a defendant’s theory of self-defense.
17. Self-Defense: Evidence. To determine if there is sufficient evidence to
support a legally cognizable claim of self-defense, the trial court must
assess the evidence without deciding factual issues.
18. Self-Defense: Juries. The jury, and not the trial court, must resolve
any fact questions concerning whether a defendant acted in self-defense
within the meaning of the law.
19. Self-Defense: Evidence. Whether the evidence is sufficient to raise a
legally cognizable claim of self-defense is, in the first instance, a ques-
tion of law for the trial court.
20. Self-Defense. A person has no legal right to shoot another on sight
merely because of a suspicion that the other person carries a gun.

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STATE v. LOPEZ
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21. ____. The mere display of a gun, without more, does not constitute the
use of deadly force.
22. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors and applicable legal principles.
23. ____: ____. An abuse of discretion takes place when the sentencing
court’s reasons or rulings are clearly untenable and unfairly deprive a
litigant of a substantial right and a just result.
24. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense and (8) the amount of violence
involved in the commission of the crime.
25. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment that includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and of all the facts and circumstances surround-
ing the defendant’s life.
26. Sentences: Appeal and Error. It is not the proper function of an appel-
late court to conduct a de novo review or engage in a reweighing of the
sentencing factors in the record.
27. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under the framework established by
the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his
or her counsel’s performance was deficient and that this deficient per-
formance actually prejudiced the defendant’s defense.
28. ____: ____. To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law.
29. Trial: Attorneys at Law: Effectiveness of Counsel: Presumptions:
Appeal and Error. Trial counsel is afforded due deference to formu-
late trial strategy and tactics and, in considering a claim of ineffective
assistance of counsel, there is a strong presumption that counsel acted
reasonably.
30. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and
Error. An appellate court will not second-guess the reasonable strategic
decisions of trial counsel.
31. Effectiveness of Counsel: Proof. To show prejudice in a claim of
ineffective assistance of counsel, the defendant must demonstrate a

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STATE v. LOPEZ
Cite as 321 Neb. 118
reasonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
32. Words and Phrases. A reasonable probability of prejudice is a probabil-
ity sufficient to undermine confidence in the outcome.
33. Effectiveness of Counsel: Appeal and Error. In determining whether
there is a reasonable probability that any deficient performance of trial
counsel would have resulted in a different outcome in the proceeding,
an appellate court may properly consider the strength of the admissible
evidence relating to the controverted issues in the case.
34. ____: ____. When a defendant’s trial counsel is different from his or
her counsel on direct appeal, the defendant must properly raise on
direct appeal any issue of trial counsel’s deficient performance which
is either known to the defendant or is apparent from the record. Any
known or apparent issue of deficient performance not properly raised
on direct appeal will be procedurally barred in a subsequent postconvic-
tion proceeding.
35. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
36. Effectiveness of Counsel: Appeal and Error. A defendant seeking to
raise a claim of ineffective assistance of counsel on direct appeal is not
required to make specific allegations of prejudice. However, anytime
a defendant seeks to raise an ineffective assistance claim, whether on
direct appeal or in a postconviction motion, the defendant must specif-
ically assign and specifically argue the alleged deficient performance,
and must do so with sufficient particularity.
37. ____: ____. To sufficiently allege deficient performance of counsel, the
allegations must include a description of the specific conduct alleged to
constitute deficient performance.
38. Effectiveness of Counsel: Records: Appeal and Error. The descrip-
tion of deficient performance of counsel must be particular enough
to (1) allow an appellate court to determine whether the claim can be
decided upon the trial record and (2) allow a district court reviewing a
later postconviction motion to recognize whether the claim was raised
on direct appeal.
39. Effectiveness of Counsel: Appeal and Error. To allege deficient con-
duct of counsel with specificity requires more than generalities of inad-
equate preparation or failures to introduce beneficial evidence.
40. Effectiveness of Counsel: Records: Appeal and Error. The fact that
a claim of ineffective assistance of counsel is properly raised on
direct appeal does not mean it can be resolved on direct appeal. The

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STATE v. LOPEZ
Cite as 321 Neb. 118
determining factor is whether all the facts necessary to the analysis are
part of the appellate record.
41. ____: ____: ____. An ineffective assistance of counsel claim will not be
addressed on direct appeal if it requires examination of facts not con-
tained in the record.
42. Trial: Attorneys at Law: Effectiveness of Counsel: Records: Appeal
and Error. If the record on direct appeal conclusively establishes both
that trial counsel’s performance was deficient and that the deficient
performance prejudiced the defendant’s defense, an appellate court can
determine trial counsel was ineffective. Conversely, if the record on
direct appeal conclusively establishes either that trial counsel’s per-
formance was not deficient or that any deficient performance did not
prejudice the defendant’s defense, an appellate court can determine trial
counsel was not ineffective.
43. Effectiveness of Counsel: Records: Appeal and Error. If the record
on direct appeal does not conclusively establish or refute a claim of
ineffective assistance, then the issue cannot be resolved on direct appeal
and must be properly raised in a subsequent postconviction proceeding.
44. Trial: Constitutional Law: Testimony: Attorney and Client: Waiver.
A defendant has a fundamental constitutional right to testify, and the
right to testify is personal to the defendant and cannot be waived by
defense counsel’s acting alone.
45. Trial: Attorney and Client: Testimony. Defense counsel bears the pri-
mary responsibility for advising a defendant of his or her right to testify
or not to testify, of the strategic implications of each choice, and that the
choice is ultimately for the defendant to make.
46. Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
Waiver. Defense counsel’s advice to waive the right to testify can
present a valid claim of ineffective assistance of counsel in two
instances: (1) if the defendant shows that counsel interfered with his
or her freedom to decide to testify or (2) if counsel’s tactical advice to
waive the right was unreasonable.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed.
Kristi J. Egger, Lancaster County Public Defender, and
Amanda R. Baskin for appellant.
Michael 	T. 	Hilgers, 	Attorney 	General, 	and 	Jacob 	M.
Waggoner for appellee.

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STATE v. LOPEZ
Cite as 321 Neb. 118
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Stacy, J.
In September 2023, Brent P. Lopez fired gunshots at two
social workers as they approached his home. A jury convicted
him of multiple felonies relating to the shooting, and he was
sentenced to consecutive prison terms. In this direct appeal,
Lopez challenges the district court’s refusal to instruct the jury
on self-defense and/or defense of others, and he challenges his
sentences as excessive. He also asserts that his trial counsel
was constitutionally ineffective in several respects. We affirm
his convictions and sentences.
I. BACKGROUND
In November 2023, the State filed a six-count informa-
tion against Lopez in the district court for Lancaster County.
Count 1 alleged first degree assault (a Class II felony); count
2 alleged use of a firearm to commit a felony (a Class IC fel-
ony); count 3 alleged attempted first degree assault (a Class
IIA felony); count 4 alleged use of a firearm to commit a fel-
ony (a Class IC felony); and counts 5 and 6 each alleged third
degree assault (a Class I misdemeanor). The two misdemeanor
assault charges were related to a physical altercation between
Lopez and two teenage girls that occurred on September 24,
2023, at a community center where Lopez worked. The four
felony charges related to a shooting that occurred 2 days later
outside Lopez’ home. Lopez pled not guilty to all charges, and
a jury trial was scheduled.
Immediately before jury selection began, Lopez pled no con-
test to the misdemeanor charges, and the jury trial proceeded
on the remaining felony charges. During the 5-day jury trial,
16 witnesses testified and more than 90 exhibits were offered.
Lopez waived his right to testify. As relevant to the issues
raised on appeal, we summarize the trial evidence, describing
the various events in chronological order.

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321 Nebraska Reports
STATE v. LOPEZ
Cite as 321 Neb. 118
1. Events of September 24, 2023
On September 24, 2023, Lopez was working at a commu-
nity center in Lincoln, Nebraska, that the parties refer to as the
“rec center.” Lopez’ 12-year-old son was also at the rec center
that day, and the son told Lopez that two 14-year-old girls had
pushed and threatened him. Lopez confronted the girls and
asked them to leave the rec center. When they refused, Lopez
contacted police.
While waiting for police to arrive, Lopez got into a physical
altercation with the girls in the lobby area of the rec center, and
punches were thrown. The altercation lasted several minutes
but was over by the time police arrived. Video footage of the
altercation was captured on the rec center’s security cameras.
After police investigated the altercation and reviewed the
security footage, they cited Lopez for assaulting both girls.
These citations gave rise to the misdemeanor assault charges to
which Lopez eventually pled no contest. After issuing the cita-
tions, police escorted Lopez to his vehicle in the rec center’s
parking lot.
By this time, a group of approximately 10-15 people had
gathered in the rec center’s parking lot, and some in the
group shouted derogatory comments at Lopez and at police.
Police body cameras captured some of those comments.
Comments directed at Lopez included, “You gonna get what
you deserve,” “[w]e know where this guy lives,” and “[w]hen
I see your little son . . . I’m not caring.” Lopez responded to
the group with comments like, “Make sure I don’t see you
first, chump,” and “I got one too, come see me.” An uniden-
tified man kicked the side of Lopez’ vehicle while Lopez and
his son were seated inside, and some people in the group
expressed frustration that Lopez had not been taken into
custody. Additional officers were called to the scene to assist
with crowd control.
Eventually, officers handcuffed Lopez and placed him in
the back of a police cruiser, prompting members of the group

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STATE v. LOPEZ
Cite as 321 Neb. 118
to cheer. While Lopez was seated in the back of the police
cruiser, an officer told him:
So, my issue is, is that everybody is pretty pissed off
with this entire situation right now, and it’s probably not
going to be done tonight. So as soon as somebody . . .
sees us let you out of a cop car, instead of taking you to
jail, there’s probably going to be more.
To avoid escalating the situation, officers drove away from the
rec center with Lopez in the back of the police cruiser. Police
then released Lopez several blocks away at a prearranged
location, where Lopez was picked up by his neighbor and
driven home.
2. Events of September 25, 2023
(a) Media Coverage
The next day, local media reported on Lopez’ involvement
in the altercation at the rec center, and several related cell
phone videos were posted online. At trial, Lopez’ oldest son,
the only member of the Lopez family to testify at trial, tes-
tified about his father’s response to the media coverage. The
son, who was 15 years old at the time of trial and 14 years old
when the crimes occurred, testified that his father perceived the
media coverage to be
painting his situation in a negative and false light. . . . He
also had a lot of fear after the [media coverage.]
. . . .
. . . [H]e was worried about people around the city
viewing that and being outraged, rightfully so. And that
instilled a lot of fear because he wasn’t sure if people
were going to find out where we lived, if they were
going to track us down, you know, if he could even go
outside. He was fearful, and not only for him but for our
entire family.
The son testified that he and his two younger brothers were
frightened too. He said that Lopez had instructed them to
stay away from windows while inside the home and that they

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STATE v. LOPEZ
Cite as 321 Neb. 118
were scared to be outside. The son searched online for posts
about the altercation at the rec center, and he helped Lopez
monitor the online comments to those posts. The son testified
that he saw “a lot of outrage” in the online comments, but he
admitted that none of the comments contained threats directed
at either Lopez or his family. The son also testified that, at
his father’s direction, he helped produce several videos in
a series titled “Brent Lopez Vs. The City of Lincoln” and
posted those videos online so that Lopez could “give his side
of the story” regarding the altercation at the rec center.
(b) First Welfare Check
The morning after the altercation at the rec center, Lopez
advised his youngest son’s elementary school that the boy
would not be attending school because his family “fear[ed]
for their li[ves].” Lopez told the school that “70 to 100 people
were trying to get him” and that he “had a gun and had been
watching at the window all night.” The school registrar called
police and requested a welfare check on Lopez’ son.
Police then called Lopez to inform him they were coming
to his home to conduct a welfare check. When two uniformed
officers arrived, Lopez reported that he did not feel safe in
his home based on the reaction of the crowd at the rec center
the previous day. He told the officers that “at least 50 people
[were] screaming [I’m] going to kill you” and “one of them
walked up and let me know she knows where I live.” One
of the officers testified that Lopez was not able to identify
anyone in the crowd who made the threatening comments and
that Lopez expressly denied receiving additional threats after
leaving the rec center’s parking lot. Lopez told the officers
that he was planning to pull his children from school and that
they were “gonna get out of here” due to safety concerns.
The officers provided Lopez with information about available
resources if he decided to “leave town,” and they encouraged
Lopez to contact police “if people do show up.”

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STATE v. LOPEZ
Cite as 321 Neb. 118
3. Events of September 26, 2023
(a) Second Welfare Check
Two days after the altercation at the rec center, police
conducted a second welfare check at Lopez’ home. This wel-
fare check was prompted by a call to police from the mother
of Lopez’ children, who reported she was concerned about
the children’s well-being after seeing the media coverage of
the altercation at the rec center. When police arrived at Lopez’
home to conduct this welfare check, Lopez said he was pack-
ing up the house to move his family because “my life’s in
danger.” An officer asked Lopez why he was in danger, and
he replied, “Because the media’s got me on as beating up a
bunch of kids at the rec center when I was getting jumped.”
When the officer asked Lopez to identify who was threatening
him, Lopez replied, “The angry mob that was threatening to
kill me.”
The officer testified that Lopez was “showing signs of para-
noia” and “maybe fear of retaliation,” but because Lopez had
not reported any specific threats, the officer concluded there
was little that police could do. After talking with Lopez for
several minutes, the officer determined he was not a threat to
himself or others and there was no need to remove the children
from the home. Before leaving, the officer told Lopez, “If you
need us, just call us.”
(b) Home Visit
Later that same day, the Nebraska Department of Health and
Human Services (DHHS) received a call on its hotline from
the children’s mother reporting possible abuse and neglect
of the children by Lopez. The report was assigned to DHHS
employee Caden Dirks.
As part of his initial investigation, Dirks contacted the
police department’s family crimes unit and learned that police
had just been out to Lopez’ home for a welfare check and
“everything seemed good.” Dirks and another DHHS employee

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STATE v. LOPEZ
Cite as 321 Neb. 118
then drove a government vehicle to Lopez’ home to continue
the investigation. According to Dirks, it was standard DHHS
procedure not to call ahead to alert a caregiver of a home visit
when investigating possible abuse or neglect, so neither Dirks
nor his coworker alerted Lopez of their visit.
At approximately 4 p.m., the DHHS employees arrived at
Lopez’ home and parked their vehicle along the curb across
the street. It is undisputed that their vehicle was marked on
both sides with a “State of Nebraska Dept. of Administrative
Services” logo. Both DHHS employees were dressed in casual
attire, and neither was armed. Dirks was wearing a lanyard
around his neck that displayed his DHHS badge, and he
was carrying under his left arm a black zippered binder with
paperwork visible in the front pocket of the binder.
(i) Oldest Son’s Testimony
When the DHHS employees arrived at Lopez’ home, Lopez’
oldest son was standing on the front porch and his youngest
son was riding a scooter on the sidewalk near the home. The
oldest son testified that he did not see the vehicle pull up, but
he noticed two men sitting in a parked vehicle across the street,
talking and glancing at the home. He did not notice the gov-
ernment logo on the vehicle, but he explained he was not
wearing his eyeglasses at the time and, consequently, objects at
a distance were “not so clear.” On cross-examination, the son
admitted that without his eyeglasses, he “can’t really discern
much at all.”
The son testified that he watched as the men got out of the
vehicle and began walking “swiftly” toward the home. He
noticed one man was “holding something,” and he watched
the man move the object from one hand to the other after he
got out of the vehicle. The son testified the man was hold-
ing “the object, whatever it was, like he would be holding
a handgun. It was directly down to the ground.” The son
testified that “in my head, it all came together and I just — I
panicked.” Believing “the man was holding . . . a gun in its

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STATE v. LOPEZ
Cite as 321 Neb. 118
holster,” the son ran inside the home and told Lopez: “[M]en
are coming and they have a gun, and they’re coming towards
the house.”
The son testified that in response to this statement, Lopez
commanded him to “get away from the door.” The son
watched as Lopez opened the door, raised a firearm, and shot
twice toward the approaching men. When the men began
screaming for help, the son testified that he could see on
Lopez’ face that he “went from believing it was a threat to
realizing that it wasn’t.” Lopez apologized to the men and
assured them help was on the way. After police and emer-
gency responders arrived, Dirks was transported to a hospi-
tal where he was treated for a gunshot wound that entered
the back of his leg near his buttocks and exited the front of
his thigh.
(ii) Dirks’ Testimony
Dirks testified to a similar series of events. He said that
after parking the government vehicle across the street from
Lopez’ home, he and his coworker got out of the vehicle and
began walking toward Lopez’ home. Dirks was carrying a
binder in his left arm at hip level, with his paperwork facing
outward. As the men approached the home, they saw an older
child on the front porch who, upon seeing them, screamed
“run” and ran inside the home. Dirks did not think anything
of it at the time because, in his experience, it was not uncom-
mon for children to run when DHHS employees arrived at
their home. Dirks crossed the street, stepped up onto the curb
in front of Lopez’ home, and approached the sidewalk area
when Lopez opened the front door and began shooting with-
out warning.
Both DHHS employees turned to run, and Dirks was shot
in the back of the leg. The employees retreated behind their
parked vehicle, where Dirks’ coworker began to render aid
and called the 911 emergency dispatch service. Dirks testified

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about a lengthy healing process from his gunshot wound and
said he still experienced pain with prolonged standing.
4. Postshooting Investigation
Police testified that after the shooting, Lopez was coopera-
tive and was taken into custody without incident. A videotaped
interview of Lopez by police was admitted into evidence and
played for the jury. In it, Lopez said to police, “Okay, this is
what happened. I’ve been under threat of death for days now,
in my opinion, in my full competent belief, because of what
the police did.” Lopez went on to describe how he thought
police had mishandled the investigation at the rec center, and
he said that “for three days nonstop,” he had been worrying
“people [were] going to try and kill us.” Lopez described the
shooting this way:
I’m in the kitchen, and I hear my son go, “Dad, some-
body’s outside and they got a gun.” . . . I run and I grab
my gun, and I [told my son to] get away from the door
. . . I look outside and two men, not in uniform, are
walking towards my house, and they got something in
their hands. At this point, I trusted my son because I had
no choice. . . . I shot twice, and then I looked up and
seen the car across the street, and it was some “Nebraska
Department” of something . . . . I immediately call 911,
. . . I’m praying for him, and I’m so sick that he’s hurt
right now. That is my statement.
After the shooting, police examined Lopez’ cell phone and
reviewed news articles, online comments, and social media
accounts, looking for evidence of specific threats against
Lopez. Other than the comments shouted from the group in the
rec center parking lot, investigators found no evidence of any
threat directed at either Lopez or his family.
5. Jury Instruction Conference
After both parties rested, the court held a formal jury
instruction conference outside the presence of the jury. Lopez

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STATE v. LOPEZ
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asked for a jury instruction on self-defense and/or defense of
others. In support, Lopez argued that he reasonably feared
for his life after receiving threats from “an angry mob” at the
rec center, and he argued that unfavorable media coverage in
the days that followed the altercation gave him “a rational,
subjective and objective belief that he was still in danger.”
Lopez argued that “[t]he law allows for someone to be mis-
taken if their mistake was reasonable [and it] should be for
the jury to decide if [he] was reasonable or not when he fired
that gun.”
The State disagreed. It argued the evidence did not sup-
port a legally cognizable claim of self-defense because, even
assuming Lopez may have subjectively believed that deadly
force was necessary, he offered no evidence to show that his
belief was objectively reasonable. The State emphasized evi-
dence that the DHHS employees arrived at Lopez’ home in
a “government marked vehicle,” walked up to the home car-
rying nothing but a black binder and a cell phone, and made
no threatening comments or gestures as they approached. The
State acknowledged the oldest son’s statement that the men
had a gun but argued it was not reasonable for Lopez to rely
on that statement without verifying the circumstances for
himself, especially since Lopez knew his son had impaired
vision and Lopez could see that his son was not wearing his
eyeglasses. Finally, the State emphasized that Lopez’ own
description of the events showed that he fired his gun and
used deadly force before taking any steps to assess whether
the approaching men posed an immediate threat of serious
bodily harm.
The court refused to instruct on self-defense, giving two rea-
sons for its decision. First, it relied on the rule that a defendant
who is the initial aggressor is not entitled to a self-defense
instruction. 1 The court concluded, based on the evidence,
1 See, e.g., State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).

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that Lopez was not just the first aggressor, he was “the
only aggressor.” Alternatively, the court concluded Lopez had
“transfer[red] his fear of people at the rec center two days
before to two innocent victims in front of his house” and it was
“just not objectively reasonable” to believe the victims posed
any threat at all.
6. Closing Arguments
In closing argument, the State’s theory was that the shoot-
ing was motivated by “self-induced paranoia” over public
reaction to events at the rec center several days earlier, caus-
ing Lopez to develop an irrational fear that people wanted to
kill him. The State argued that Lopez brought his children in
his “hyperbolized reality,” and when the oldest son said that
men were approaching the home with a gun, Lopez opened
the front door and intentionally fired his gun directly at the
men, only realizing after the fact that they were unarmed
DHHS employees. The State asked the jury to return a verdict
finding Lopez guilty of first degree assault for intentionally
shooting Dirks and causing serious bodily injury. It also asked
the jury to find Lopez guilty of attempted first degree assault
for intentionally shooting at the other DHHS employee and
guilty of the related charges for using a firearm to commit
both assaults.
Defense counsel argued that the shooting did not occur
because 	of 	“self-induced 	paranoia,” 	but 	instead 	occurred
because Lopez had been threatened at the rec center and was
“moved to protect his family” from “the man who [his oldest
son] believed had a gun.” Defense counsel did not deny that
Lopez intentionally fired two shots at Dirks, but he argued
there was “no evidence that [Lopez] ever shot” in the direc-
tion of the other DHHS employee. Moreover, defense counsel
argued that although one of the shots hit and injured Dirks,
the gunshot wound was “not serious in nature” and, therefore,
if Lopez was “guilty at all, it would be for third-degree assault
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a verdict finding Lopez guilty of third degree assault would
require the jury to return “not guilty” verdicts on the related
charges of using a firearm to commit a felony.
7. Verdict and Sentencing
On the charge of first degree assault for shooting Dirks, the
jury returned a verdict finding Lopez guilty of the lesser-included
offense of attempted assault in the first degree. On all remain-
ing counts, the jury found Lopez guilty as charged. The court
accepted the verdicts and found Lopez guilty of two counts of
attempted first degree assault and two counts of using a firearm
to commit a felony. The court ordered a presentence investiga-
tion report and set the matter for sentencing.
At the sentencing hearing, the court acknowledged receipt
and 	consideration 	of 	the 	presentence 	investigation 	report.
After considering the parties’ arguments and giving Lopez
an opportunity for allocution, the court pronounced prison
sentences of 10 to 15 years on the conviction for attempted
first degree assault against Dirks, 3 to 5 years on the convic-
tion for attempted first degree assault against the other DHHS
employee, and 5 to 10 years on each of the convictions for use
of a firearm to commit a felony. On each of the two misde-
meanor assault charges to which Lopez pled no contest before
trial, the court pronounced a prison sentence of 1 year. All
sentences were ordered to be served consecutively.
Lopez timely appealed, represented by new counsel. We
moved this appeal to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
Lopez assigns that the district court erred in (1) refusing
to instruct the jury on self-defense or defense of others and
(2) imposing excessive sentences. In addition, Lopez asserts
that his trial counsel was constitutionally ineffective in four
respects: “failing to obtain exculpatory evidence regarding the
rec center incident,” advising Lopez not to testify and “failing
to adequately prepare [him] to testify,” “failing to adequately

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investigate DHHS policy,” and “failing to retain an expert
to rebut the State’s claim that [Lopez] was suffering from
self-induced paranoia.”
III. STANDARD OF REVIEW
[1] Whether jury instructions given by a trial court are cor-
rect is a question of law. 2
[2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. 3
[3,4] Whether a claim of ineffective assistance of counsel
may be determined on direct appeal is a question of law. 4
In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance. 5
IV. ANALYSIS
1. Instruction on Self-Defense/Defense
of Others
Lopez contends the trial court erred in refusing to instruct
the jury on self-defense and/or defense of others. He argues
the evidence presented a jury question regarding whether,
“based on the information available to him in that instant,” 6
Lopez mistakenly, but reasonably, believed the DHHS employ-
ees “presented an immediate threat to him and/or his family
when they approached his home with what [Lopez] believed
was a firearm.” 7
2 State v. Gonzalez, 313 Neb. 520, 985 N.W.2d 22 (2023).
3 State v. Rezac, 318 Neb. 352, 15 N.W.3d 705 (2025).
4 State v. Dat, 318 Neb. 311, 15 N.W.3d 410 (2025).
5 See id.
6 Brief for appellant at 27.
7 Id.

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To analyze his argument, we first review the statutory
requirements for raising a claim of self-defense and defense
of others under Nebraska law. We then review our case law
addressing when a defendant is entitled to a jury instruction
on self-defense or defense of others. And finally, we review
the evidence and arguments in the instant appeal to determine
whether, on this record, Lopez was entitled to a jury instruction
on self-defense and/or defense of others.
(a) Justification Defenses Under Nebraska Law
[5] In Nebraska, self-defense and defense of others are both
statutorily defined affirmative defenses. 8 In asserting these
defenses, Lopez relies exclusively on the justification provi-
sions in §§ 28-1409 and 28-1410, and we limit our analysis
accordingly.
(i) Justification Based on Self-Defense
Section 28-1409(1) provides, in relevant part, that “the use
of force upon or toward another person is justifiable when the
actor believes that such force is immediately necessary for
the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion.” Section
28-1409(4) imposes additional requirements to justify the use
of deadly force, providing the “use of deadly force shall not
be justifiable under this section unless the actor believes that
such force is necessary to protect himself against death, seri-
ous bodily harm, kidnapping or sexual intercourse compelled
by force or threat.” The justification statutes define “deadly
force” to include “[p]urposely firing a firearm in the direction
of another person.” 9 On appeal, Lopez does not dispute that
he used deadly force when he fired his gun in the direction of
the DHHS employees as they approached his home.
8 See, Neb. Rev. Stat. §§ 28-1409 and 28-1410 (Reissue 2016); State v.
Case, 304 Neb. 829, 937 N.W.2d 216 (2020).
9 Neb. Rev. Stat. § 28-1406(3) (Reissue 2016).

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[6-8] This court has long interpreted § 28-1409 to mean that
“to successfully assert the claim of self-defense, a defendant
must have a reasonable and good faith belief in the necessity
of using force and the force used in defense must be imme-
diately necessary and justified under the circumstances.” 10
Similarly, when a defendant claims the use of deadly force
was justified, there must be evidence that the defendant had
“a reasonable and good faith belief in the necessity to use
deadly force.” 11 The principle underpinning the requirement
that a defendant’s belief must be objectively reasonable “is
that human life should not be made to depend upon condi-
tions so unreliable and hazardous as the bare belief of any
person that he or she is in danger of death or bodily harm.” 12
As such, to warrant an instruction on self-defense, it is not
enough to show that the defendant subjectively believed in
the need to use force for self-protection; “the defendant must
produce evidence that this subjective belief was also objec-
tively reasonable.” 13
Moreover, when a defendant claims to have used deadly
force in self-defense, the justification statutes impose addi-
tional requirements that the defendant cannot provoke the
10 State v. Johnson, 314 Neb. 20, 42-43, 988 N.W.2d 159, 176 (2023). See,
State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009); State v. Thompson,
244 Neb. 375, 507 N.W.2d 253 (1993); State v. Eagle Thunder, 201 Neb.
206, 266 N.W.2d 755 (1978).
11 Thompson, supra note 10, 244 Neb. at 405, 507 N.W.2d at 273. See,
also, State v. Williams, 239 Neb. 985, 999, 480 N.W.2d 390, 400 (1992)
(approving jury instruction stating that defendant must have “reasonably
believed that his use of deadly force was immediately necessary to protect
him against serious bodily harm”).
12 Thompson, supra note 10, 244 Neb. at 404, 507 N.W.2d at 273. Accord
Housh v. State, 43 Neb. 163, 169, 61 N.W. 571, 573 (1895) (“‘if the person
charged with the homicide is to judge for himself whether the reasonable
ground existed[,] the most atrocious murders may be committed with
impunity’”).
13 Johnson, supra note 10, 314 Neb. at 43, 988 N.W.2d at 176.

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use of force and must retreat before using deadly force under
certain circumstances. Section 28-1409(4) states that the use
of deadly force is not justifiable if the defendant “provoked
the use of force against himself in the same encounter” 14 or if
the defendant “knows that he can avoid the necessity of using
[deadly] force with complete safety by retreating,” 15 except
that a defendant “shall not be obliged to retreat from his dwell-
ing . . . unless he was the initial aggressor.” 16
[9] In addition to these statutory elements regarding the use
of deadly force in self-defense, Nebraska has long followed
the rule that “‘a defendant who is the initial aggressor is not
entitled to a self-defense instruction.’” 17 Stated differently, it is
an essential element of a self-defense claim that the victim was
the first aggressor. 18
(ii) Justification Based on Defense of Others
Section 28-1410(1) provides, in relevant part, that the use of
force to protect others is justifiable when:
(a) The actor would be justified under section 28-1409
in using such force to protect himself against the injury
he believes to be threatened to the person whom he seeks
to protect;
(b) Under the circumstances as the actor believes them
to be, the person whom he seeks to protect would be
justified in using such protective force; and
14 § 28-1409(4)(a).
15 § 28-1409(4)(b).
16 § 28-1409(4)(b)(i).
17 State v. Liech, 320 Neb. 843, 854, 30 N.W.3d 847, 856 (2026). Accord,
State v. Valadez, 313 Neb. 902, 987 N.W.2d 268 (2023); Miller, supra note
1. See Eagle Thunder, supra note 10.
18 See, e.g., Liech, supra note 17, 320 Neb. at 854, 30 N.W.3d. at 856
(“determination of whether the victim was the first aggressor is an
essential element of a self-defense claim”). Accord State v. Kruger, 320
Neb. 361, 27 N.W.3d 398 (2025) (same).

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(c) The actor believes that his intervention is necessary
for the protection of such other person.
Because it is a material element of a justification claim
under § 28-1410 that the defendant would be justified under
§ 28-1409 in “using such force to protect himself against
the injury he believes to be threatened” 19 against the one he
seeks to protect, our analysis will focus primarily on whether
Lopez produced sufficient evidence to raise a legally cogniza-
ble claim of self-defense involving the use of deadly force
under § 28-1409(4).
(b) Burden of Proof and Duty to Instruct
[10-12] Since justification is an affirmative defense, the
defendant bears the initial burden to produce evidence that
supports the claimed defense, 20 and once the defendant has
produced sufficient evidence to raise the defense, the issue
becomes an element the State is required to disprove. 21 A crimi-
nal defendant “need only adduce a slight amount of evidence to
satisfy this initial burden of raising the issue of self-defense.” 22
And the evidence necessary to raise an affirmative defense
may be adduced either by the defendant’s witnesses or in the
State’s case in chief without the necessity of the defendant’s
presenting evidence. 23 But as we explain next, even though the
initial burden requires only a slight amount of evidence, there
must be at least some evidence to support each element of the
claimed justification defense.
[13-16] We have often said that a trial court must instruct
the jury on self-defense “‘when there is any evidence adduced
19 § 28-1410(1)(a).
20 See, Liech, supra note 17; State v. Urbano, 256 Neb. 194, 589 N.W.2d 144
(1999).
21 See, Liech, supra note 17; State v. Alford, 278 Neb. 818, 774 N.W.2d 394
(2009).
22 State v. Kinser, 252 Neb. 600, 607, 567 N.W.2d 287, 292 (1997).
23 Id.

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which raises a legally cognizable claim of self-defense.’” 24
Elaborating on this principle, we have explained that “only
where the jury could reasonably find that the defendant’s use
of force was justified should the trial court instruct the jury on
self-defense.” 25 In other words, to support giving a justification
instruction, there must be at least some evidence from which a
reasonable jury could find that each element of the justification
defense has been met. 26 It is only when the evidence does not
support a legally cognizable claim of self-defense, or when the
evidence is so lacking in probative value that it constitutes a
failure of proof regarding one or more elements of the defense,
that a trial court may properly refuse to instruct a jury on a
defendant’s theory of self-defense. 27
[17-19] To determine if there is sufficient evidence to sup-
port a legally cognizable claim of self-defense, the trial court
must assess the evidence “without deciding factual issues.” 28
24 Liech, supra note 17, 320 Neb. at 853, 30 N.W.3d at 855. Accord, Urbano,
supra note 20; Kinser, supra note 22. See Case, supra note 8.
25 Case, supra note 8, 304 Neb. at 842, 937 N.W.2d at 225 (emphasis
supplied).
26 See, e.g., People v. Dupree, 486 Mich. 693, 712, 788 N.W.2d 399, 410
(2010) (defendant must satisfy “the initial burden of producing some
evidence from which a jury could conclude that the elements necessary
to establish a prima facie defense of self-defense exist”); State v. Riley,
137 Wash. 2d 904, 976 P.2d 624 (1999) (defendant bears initial burden of
producing some evidence satisfying statutory elements of self-defense).
See, also, 2 Paul H. Robinson & Catherine Palo, Criminal Law Defenses
§ 132 at 92 (Supp. 2025) (observing that if there is “some evidence
to support each element of self-defense—whether found in the State’s
presentation of evidence or produced by the defendant—it becomes the
State’s burden to persuade the jury beyond a reasonable doubt that at least
one element of the defense does not exist”).
27 See, Case, supra note 8; Kinser, supra note 22; State v. Brown, 235 Neb.
374, 382, 455 N.W.2d 547, 552 (1990) (“trial court is not required to give
an instruction [on self-defense] where there is insufficient evidence to
prove the facts claimed”).
28 See, Case, supra note 8, 304 Neb. at 843, 937 N.W.2d at 226.

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This is because the jury, and not the trial court, must resolve
any fact questions concerning whether a defendant acted in
self-defense within the meaning of the law. 29 But whether the
evidence is sufficient to raise a legally cognizable claim of
self-defense is, in the first instance, a question of law for the
trial court. 30
With these principles in mind, we turn to the parties’ argu-
ments and consider whether, on this record, Lopez met his
initial burden of producing sufficient evidence to raise a legally
cognizable claim of self-defense or defense of others.
(c) Parties’ Arguments
At the conclusion of all the evidence, the district court
ruled that Lopez had not raised a legally cognizable claim
of self-defense because (1) the undisputed evidence showed
Lopez was the initial aggressor and the DHHS employees had
not actually threatened the use of any force and (2) there was
no evidence to support a finding that Lopez had a reasonable
and good faith belief in the necessity of using deadly force.
Lopez argues the district court’s ruling was erroneous in
both respects. He concedes, as he must, that the undisputed
evidence showed that the DHHS employees presented “no
29 See, Liech, supra note 17; Kinser, supra note 22, 252 Neb. at 609, 567
N.W.2d at 293 (noting “[a] defendant’s claim of self-defense is a question
of fact for the jury” and “a jury, and not the trial court, must resolve” fact
questions concerning whether defendant acted in self-defense).
30 See, Case, supra note 8; Kinser, supra note 22. Accord, Dykes v. State, 319
Md. 206, 221, 571 A.2d 1251, 1259 (1990) (“[t]he threshold determination
whether the evidence was sufficient to generate the doctrine of self-
defense was a question of law for the judge”); State v. Badgett, 167
N.W.2d 680, 683 (Iowa 1969) (whether evidence is “sufficient to justify a
killing in self-defense is usually a question of law for the trial court, but
whether such facts exist is generally a question for the jury”); 41 C.J.S.
Homicide § 492 at 256 (2025) (noting defense of justification generally
raises questions of fact for jury on sufficient evidence, “but a question of
law is presented for the court in the absence of evidence to support the
defense or when the facts are undisputed”).

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actual threat of harm” 31 to either Lopez or his children and
that Lopez was the first person, and the only person, to use
deadly force that day. But Lopez argues the evidence showed
that he “mistakenly believed that [the DHHS employees]
were the initial aggressors, presenting an immediate risk of
serious bodily injury or death to [Lopez] and his three minor
children.” 32 And he argues this presented a jury question
regarding whether his mistaken belief was reasonable under
the circumstances.
In making this argument, Lopez relies on the rule that “[a]
defendant’s use of deadly force in self-defense is justified if
a reasonable ground existed under the circumstances for the
defendant’s belief that he or she was threatened with death
or serious bodily harm, even if the defendant was actually
mistaken about the extent of the danger.” 33 Lopez argues he
presented evidence of two circumstances that showed it was
reasonable for him to believe the men approaching his home
were armed and presented an imminent threat of death or
serious bodily harm: (1) “an angry mob” 34 had threatened him
with harm at the rec center several days earlier and (2) just
moments before the shooting, Lopez’ son “ran into the house
‘panicked for his life’ and warned [Lopez] that two men were
coming toward the house with a gun.” 35 According to Lopez,
if the jury believed this evidence, it would have allowed a
finding that his use of deadly force was reasonable under the
circumstances, even though he was mistaken about the extent
of the danger.
The State disagrees and argues that it was not objectively
reasonable for Lopez to believe that either his life or his
31 Brief for appellant at 31.
32 Id. at 27-28.
33 Miller, supra note 1, 281 Neb. at 348, 798 N.W.2d at 831 (emphasis
supplied).
34 Brief for appellant at 28.
35 Id. at 29.

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children’s lives were in imminent danger based on events at
the rec center 2 days earlier. Additionally, the State argues it
was not reasonable for Lopez “to rely solely on [his son’s]
representation that two men were approaching the house with
a gun,” 36 especially when Lopez could see that his son was not
wearing his eyeglasses.
In sum, we understand Lopez to argue that he produced at
least some evidence that it was reasonable for him to believe
that armed men were approaching his home to cause serious
bodily harm to him and/or his children and that therefore, the
issue of whether his subjective belief was reasonable should
have been presented to the jury. And we understand the State
to contend that the evidence Lopez relied on to support a rea-
sonable and good faith belief in the necessity of using deadly
force was so lacking in probative value that it constituted a
complete failure of proof on that issue.
We ultimately conclude there was a failure of proof to sup-
port a reasonable belief in the immediate necessity of using
deadly force, but our reasoning differs from that advanced by
the parties.
(d) No Evidence to Support Reasonable Belief
in Immediate Necessity to Use Deadly Force
Lopez does not contend there was evidence that the DHHS
employees did or said anything as they approached the home
that posed a threat of death or serious bodily harm, but he
argues it was reasonable for him to connect the approaching
men with threats of harm shouted by members of the group
at the rec center a few days earlier. In State v. Goynes, 37 we
observed that other courts allow evidence of third-party threats
to support a claim of self-defense if there is also evidence from
36 Brief for appellee at 22.
37 State v. Goynes, 278 Neb. 230, 768 N.W.2d 458 (2009).

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which the jury could find that the defendant reasonably con-
nected the victim with those third-party threats. 38
On this record, we question whether there was any evi-
dence that would allow a jury to conclude it was reasonable
for Lopez to connect the victims in this case with third-party
threats shouted by unidentified people at the rec center several
days earlier. 39 But ultimately, we need not decide that question,
because even assuming arguendo that a jury could find it was
reasonable for Lopez to connect the approaching men with the
third-party threats, and even assuming that a jury could also
find it was reasonable for Lopez to rely on his son’s represen-
tation that the approaching men possessed a gun, there was still
a failure to adduce any evidence supporting a reasonable and
good faith belief in the necessity to use deadly force against
the approaching men.
The premise of Lopez’ argument is that it was immediately
necessary for him to use deadly force against the approaching
men because he believed they had a gun. To the extent Lopez
equates the mere possession of a gun with the threatened use of
deadly force, he is not on solid legal footing.
[20,21] In Bell v. State, 40 we held that “a man has no legal
right to shoot another on sight merely because he suspects that
the other man carries a gun, even though the other man may
at some time have threatened to shoot and kill him.” Speaking
to the same point, a leading criminal treatise notes that even
“[a] defendant, who anticipates that the victim intends to kill
him if and when the opportunity presents itself . . . is required
to wait until the victim performs some act indicating that a
38 Id.
39 See 2 Wayne R. LaFave, Substantive Criminal Law § 10.4(c) at 22 (3d
ed. Supp. 2025) (noting that when assessing defendant’s reasonable belief
in necessity of using force in self-defense, “the defendant’s idiosyncratic
beliefs and considerations, such as their irrational beliefs regarding
dangerousness, should not be considered”).
40 Bell v. State, 159 Neb. 474, 481, 67 N.W.2d 762, 767 (1954).

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homicidal attack is imminent.” 41 The “mere display of a gun
without more does not constitute [the use of] deadly force.” 42
To be entitled to a jury instruction on the use of deadly
force in self-defense or defense of others, Lopez was required
to produce at least some evidence that would support a find-
ing that he had “a reasonable and good faith belief in the
[immediate] necessity to use deadly force.” 43 Lopez arguably
presented evidence that he believed the men approaching his
home were angry with him for assaulting teenagers and that
he believed the men had a gun, but Lopez failed to present any
evidence that would allow a jury to find that the approaching
men did anything, or said anything, that could reasonably be
construed as presenting an imminent threat of death or serious
bodily harm to Lopez or his family. Even if the circumstances
had been just as Lopez mistakenly believed them to be, he
would not have been justified in using deadly force.
Because the record contains no evidence to support a find-
ing that Lopez had a reasonable and good faith belief in the
immediate necessity of using deadly force against the DHHS
employees, there was a failure of proof regarding one or more
elements of the defense, and the trial court properly refused
to instruct the jury on self-defense and defense of others. 44
There is no merit to Lopez’ first assignment of error.
41 1 Jens David Ohlin, Wharton’s Criminal Law § 14:4 (Sept. 2025 update).
42 Stewart v. State, 672 So. 2d 865, 868 (Fla. App. 1996). Accord Cole
Estate of Richards v. Hutchins, 959 F.3d 1127, 1132 (8th Cir. 2020) (mere
possession of firearm by individual is generally not enough to support
officer’s reasonable belief that individual poses immediate threat of death
or serious bodily injury unless individual “also point[s] the firearm
at another individual or take[s] similar ‘menacing action’”). See, also,
§ 28-1406(3) (defining “deadly force” to exclude mere production of
weapon).
43 Thompson, supra note 10, 244 Neb. at 405, 507 N.W.2d at 273; Williams,
supra note 11.
44 See, Case, supra note 8; Kinser, supra note 22; Brown, supra note 27.

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2. Excessive Sentences
In his second assignment of error, Lopez contends that his
sentences were excessive. The sentences imposed were all within
statutory limits, 45 and Lopez does not contend otherwise.
[22,23] Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate
court must determine whether a sentencing court abused its
discretion in considering and applying the relevant factors
and applicable legal principles. 46 An abuse of discretion takes
place when the sentencing court’s reasons or rulings are
clearly untenable and unfairly deprive a litigant of a substan-
tial right and a just result. 47
[24,25] When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature
of the offense and (8) the amount of violence involved in
the commission of the crime. 48 We have acknowledged that
while these factors should instruct a sentencing court, they
do not comprise a mathematical formula that must be rigidly
implemented, and that a sentence should be tailored and based
on factors that fit the offender and not merely the crime. 49
The appropriateness of a sentence is necessarily a subjective
judgment that includes the sentencing judge’s observation of
the defendant’s demeanor and attitude and of all the facts and
circumstances surrounding the defendant’s life. 50
45 See Neb. Rev. Stat. §§ 28-105 (Cum. Supp. 2024) and 28-106 (Reissue
2016).
46 See Liech, supra note 17.
47 Id.; State v. Alkazahy, 314 Neb. 406, 990 N.W.2d 740 (2023); State v.
Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).
48 See, Alkazahy, supra note 47; Starks, supra note 47.
49 State v. Ezell, 314 Neb. 825, 993 N.W.2d 449 (2023).
50 Starks, supra note 47.

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[26] Lopez does not contend the court failed to consider
these factors or that it considered any improper factors. Instead,
he argues the court “failed to give adequate weight” 51 to sev-
eral factors. But it is not the proper function of an appellate
court to conduct a de novo review or engage in a reweighing
of the sentencing factors in the record. 52 Because we can find
no abuse of discretion in the sentences imposed, we reject
Lopez’ second assignment of error.
3. Ineffective Assistance of Counsel
Represented by new counsel on direct appeal, Lopez asserts
four separate claims that his trial counsel was constitutionally
ineffective. All of Lopez’ claims are governed by the general
legal principles that apply to claims of ineffective assistance
of counsel, and, because the claims are being raised on direct
appeal, they are also subject to additional requirements. We
review the governing principles and requirements before exam-
ining Lopez’ claims.
(a) General Ineffective Assistance
of Counsel Principles
[27-30] Generally, to prevail on a claim of ineffective
assistance of counsel under the framework established by
the U.S. Supreme Court in Strickland v. Washington, 53 the
defendant must show that his or her counsel’s performance
was deficient and that this deficient performance actually
prejudiced the defense. 54 To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance
did not equal that of a lawyer with ordinary training and skill in
51 Brief for appellant at 33.
52 Liech, supra note 17. See Starks, supra note 47.
53 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
54 E.g., State v. Hagens, 320 Neb. 65, 26 N.W.3d 174 (2025).

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criminal law. 55 Trial counsel is afforded due deference to for-
mulate trial strategy and tactics and, in considering a claim of
ineffective assistance of counsel, there is a strong presump-
tion that counsel acted reasonably. 56 Thus, an appellate court
will not second-guess the reasonable strategic decisions of
trial counsel. 57
[31-33] To show prejudice in a claim of ineffective assis-
tance of counsel, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different. 58 A
reasonable probability of prejudice is a probability sufficient
to undermine confidence in the outcome. 59 In determining
whether there is a reasonable probability that any deficient
performance of trial counsel would have resulted in a different
outcome in the proceeding, an appellate court may properly
consider the strength of the admissible evidence relating to the
controverted issues in the case. 60
(b) Specific Requirements for Raising Ineffective
Assistance of Counsel Claims on Direct Appeal
The need for finality in the criminal process generally
requires that a defendant bring all claims for relief at the first
opportunity. 61 Our cases hold that when a defendant is repre-
sented by the same lawyers at trial and on direct appeal, the
defendant’s first opportunity to assert claims of ineffective
55 Id.
56 See, e.g., State v. Corral, 318 Neb. 940, 20 N.W.3d 372 (2025).
57 See id.
58 E.g., Hagens, supra note 54.
59 See id.
60 Kruger, supra note 18; State v. Vazquez, 319 Neb. 192, 21 N.W.2d 615
(2025). See, also, Strickland, supra note 53, 466 U.S. at 695 (stating
that when examining prejudice, court “must consider the totality of the
evidence before the judge or jury”).
61 State v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022).

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assistance of counsel is in a postconviction motion. 62 But as
we explain next, when a defendant is represented by new
counsel on direct appeal, the procedural posture of the case
requires the defendant to raise, on direct appeal, any known or
apparent claims of ineffective assistance.
(i) Defendant Must Raise All Known or Apparent
Claims of Ineffective Assistance
[34] When a defendant’s trial counsel is different from his
or her counsel on direct appeal, the defendant must prop-
erly raise on direct appeal any issue of trial counsel’s defi-
cient performance which is either known to the defendant
or is apparent from the record. 63 Any known or apparent
issue of deficient performance not properly raised on direct
appeal will be procedurally barred in a subsequent postcon-
viction proceeding. 64
(ii) Defendant Must Specifically Assign and
Specifically Argue Deficient Conduct
[35] In every appeal in Nebraska, an alleged error must
be both specifically assigned and specifically argued in the
brief of the party asserting the error to be considered by an
appellate court. 65 Although claims of ineffective assistance of
counsel are not, technically speaking, assignments of error by
the trial court, our cases require such claims to be included in
the separate “assignments of error” section of the brief and to
be separately numbered and paragraphed. 66
62 See State v. Reames, 308 Neb. 361, 953 N.W.2d 807 (2021).
63 See, e.g., State v. Rupp, 320 Neb. 502, 28 N.W.3d 74 (2025); State v.
Williams, 259 Neb. 234, 600 N.W.2d 313 (2000).
64 See id.
65 E.g., Kruger, supra note 18.
66 See, generally, Rupp, supra note 63; Neb. Ct. R. App. P. § 2-109(D)(1)(e)
(rev. 2025).

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[36] Although prevailing on a claim of ineffective assis-
tance under Strickland requires proving both that counsel’s
performance was deficient and that the deficient performance
actually prejudiced the defendant, a defendant seeking to
raise a claim of ineffective assistance on direct appeal is not
required to make specific allegations of prejudice. 67 However,
anytime a defendant seeks to raise an ineffective assistance
claim, whether on direct appeal or in a postconviction motion,
the defendant must specifically assign and specifically argue
the alleged deficient performance, and must do so with suffi-
cient particularity. 68
[37-39] To sufficiently allege deficient performance, the
allegations must include a “description of the specific conduct
alleged to constitute deficient performance.” 69 The description
of deficient performance must be particular enough to (1)
allow an appellate court to determine whether the claim can
be decided upon the trial record and (2) allow a district court
reviewing a later postconviction motion to recognize whether
the claim was raised on direct appeal. 70 To allege deficient
conduct with specificity requires “more than generalities of
inadequate preparation or failures to introduce beneficial evi-
dence.” 71 An allegation will be sufficiently specific “when it
addresses a specific issue that does not require additional infor-
mation to understand precisely what the assignment attacks.” 72
Although the argument section of the brief should elaborate
on the alleged deficiencies by discussing legal authority and
its application to the trial record, the argument section should
67 See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
68 Id. See, also, Rupp, supra note 63; Kruger, supra note 18.
69 See Rupp, supra note 63, 320 Neb. at 523, 28 N.W.3d at 89.
70 See Rupp, supra note 63.
71 See id. at 524, 28 N.W.3d at 90.
72 See id. at 518, 28 N.W.3d at 87.

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not be used to set forth, for the first time, what the allegedly
deficient conduct was. 73
(iii) Not All Ineffective Assistance of Counsel
Claims Can Be Resolved on Direct Appeal
[40] The fact that a claim of ineffective assistance of coun-
sel is properly raised on direct appeal does not mean it can be
resolved on direct appeal. 74 The determining factor is whether
all the facts necessary to the analysis are part of the appel-
late record. 75
[41-43] An ineffective assistance of counsel claim will
not be addressed on direct appeal if it requires examination
of facts not contained in the record. 76 But if the record on
direct appeal conclusively establishes both that trial coun-
sel’s performance was deficient and that the deficient perfor-
mance prejudiced the defendant’s defense, an appellate court
can determine trial counsel was ineffective. 77 Conversely, if
the record on direct appeal conclusively establishes either
that trial counsel’s performance was not deficient or that
any deficient performance did not prejudice the defendant’s
defense, an appellate court can determine trial counsel was
not ineffective. 78 However, if the record on direct appeal
does not conclusively establish or refute a claim of ineffec-
tive assistance, then the issue cannot be resolved on direct
appeal 79 and must be properly raised in a subsequent postcon-
viction proceeding. 80
73 See Rupp, supra note 63.
74 See, e.g., Hagens, supra note 54.
75 See, e.g., id.; Corral, supra note 56.
76 Vazquez, supra note 60.
77 See Kruger, supra note 18.
78 Id.
79 See id.
80 See id.

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We now apply these principles to the four ineffective assis-
tance claims asserted by Lopez on direct appeal.
(c) Failure to Obtain Additional Evidence
of September 24, 2023, Incident
Lopez assigns that his trial counsel was ineffective “in fail-
ing to obtain exculpatory evidence regarding the rec center
incident.” 81 This is a classic example of a broad, conclusory
allegation that lacks the specificity required to raise a claim
of ineffective assistance. The general reference to “excul-
patory evidence” does not describe with any specificity the
allegedly beneficial evidence counsel failed to obtain, and it
is functionally no different than making a general statement
that counsel failed to adequately investigate the charges. 82
Because this allegation is insufficiently specific to raise a
claim of ineffective assistance of counsel, we will not address
it further.
(d) Advising Lopez Not to Testify at Trial
[44-46] Lopez next assigns and argues that trial counsel
was deficient “in failing to adequately prepare [him] to tes-
tify and advising him not to testify” 83 at trial. A defendant
has a fundamental constitutional right to testify, and the right
to testify is personal to the defendant and cannot be waived
by defense counsel’s acting alone. 84 Defense counsel bears
the primary responsibility for advising a defendant of his or
her right to testify or not to testify, of the strategic impli-
cations of each choice, and that the choice is ultimately for
the defendant to make. 85 Defense counsel’s advice to waive
the right to testify can present a valid claim of ineffective
81 Brief for appellant at 35.
82 See Rupp, supra note 63.
83 Brief for appellant at 39.
84 State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022).
85 Id.

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assistance of counsel in two instances: (1) if the defendant
shows that counsel interfered with his or her freedom to
decide to testify or (2) if counsel’s tactical advice to waive
the right was unreasonable. 86
Here, Lopez argues that “trial counsel interfered with his
freedom to decide to testify by failing to prepare him to tes-
tify.” 87 And he argues that counsel’s “tactical advice to waive
the right to testify was not reasonable” 88 and that counsel told
Lopez “he was not prepared [to testify] in any event.” 89 Lopez
also argues that counsel’s deficient performance was prejudi-
cial because, had Lopez been adequately prepared to testify,
he could have offered testimony to support the objective rea-
sonableness of his belief in the necessity of using deadly force,
including testimony that “Dirks was raising what he believed
to be a firearm” 90 when Lopez fired the shots.
We conclude that this allegation of deficient performance
was alleged with sufficient particularity, but the record on
direct appeal is insufficient to resolve it. 91
(e) Failure to Investigate DHHS Policy
Next, Lopez assigns that his trial counsel was deficient
“in failing to adequately investigate DHHS policy.” 92 This
is another example of a broad conclusory allegation that lacks
the specificity required to raise a claim of ineffective assistance.
It fails to describe with any particularity what information
86 Id.
87 Brief for appellant at 39.
88 Id. at 40.
89 Id.
90 Id.
91 See, generally, State v. Vazquez, supra note 60; State v. Hill, 298 Neb. 675,
905 N.W.2d 668 (2018), disapproved on other grounds, State v. Falcon,
319 Neb. 911, 25 N.W.3d 462 (2025); State v. Mora, 298 Neb. 185, 903
N.W.2d 244 (2017).
92 Brief for appellant at 41.

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counsel allegedly failed to investigate regarding DHHS policy
or how that information might have helped his defense. And
although the argument section of his brief provides some of
this information, we have been clear that the argument section
should not be used to set forth, for the first time, what the
allegedly deficient conduct was. 93 This assignment was not
sufficiently alleged, and it will not be further discussed.
(f) Failure to Retain Expert to
Rebut Claim of Paranoia
Lopez’ final claim is that his counsel performed deficiently
“in failing to retain an expert to rebut the State’s claim that
[Lopez] was suffering from self-induced paranoia.” 94 Although
this claim of ineffective assistance was sufficiently assigned
and sufficiently argued, we conclude it is affirmatively refuted
by the record.
As noted, the State’s theory of the case was that the shoot-
ing was motivated by Lopez’ “self-induced paranoia” over
public reaction to events at the rec center several days earlier,
causing him to develop an irrational fear that people wanted
to kill him. Lopez argues that if trial counsel had retained an
expert to evaluate his mental health, the expert would have
opined that he “was not suffering from a mental health dis-
order, such as Paranoid Personality Disorder,” which would
have allowed Lopez to argue that “his fear and actions on
September 26, 2023, were rational and reasonable under the
circumstances.” 95 Lopez asserts that such expert testimony
would have changed the court’s determination on “whether
to give a self-defense or defense of others jury instruction.” 96
We disagree.
93 See Rupp, supra note 63.
94 Brief for appellant at 42.
95 Id. at 44.
96 Id.

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The legal question of whether the evidence was sufficient to
state a cognizable justification claim did not turn on whether
Lopez was, or was not, suffering from a paranoia disorder.
Instead, it turned on a failure to adduce any evidence support-
ing a reasonable and good faith belief in the necessity to use
deadly force under the circumstances. That legal conclusion
would not change even if Lopez offered an expert opinion that
he was not suffering from a paranoia disorder when he fired
the shots.
Because Lopez cannot show prejudice resulting from trial
counsel’s alleged deficient conduct in failing to obtain an
expert opinion on paranoia, this claim of ineffective assistance
is affirmatively refuted by the record.
V. CONCLUSION
For the foregoing reasons, the district court did not err in
refusing to instruct the jury on self-defense or defense of oth-
ers, and it did not impose excessive sentences. We therefore
affirm Lopez’ convictions and sentences.
Regarding the four claims of ineffective assistance of coun-
sel Lopez raises on appeal, one claim was affirmatively refuted
by the record, two claims were insufficiently alleged, and
the remaining claim was sufficiently alleged but cannot be
resolved on the appellate record.
Affirmed.
Miller-Lerman, J., not participating in the decision.