Background
In the early morning hours of March 1, 2024, Courtney Thomas went to Daejon Collins’s residence and got into a physical altercation with Collins and his girlfriend. Thomas then left and went to her own home. During a subsequent exchange of text messages, Collins told Thomas he was coming over; Thomas warned him she would call police. When Collins arrived, Thomas called 911 and reported that Collins had a revolver, pointed it at her, and threatened to shoot her. Collins can be heard on the 911 recording threatening to shoot Thomas and to “shoot it out with the police.” Officers arrived and Collins fled in a Chevrolet Trailblazer, which eventually crashed; Collins fled on foot and was ultimately taken into custody after officers deployed a taser.
A search of the vehicle revealed 24.71 grams of cocaine in a plastic bag in the center console, a firearm in the passenger door pocket, and two empty alcohol bottles. Bond receipts belonging to Collins from the prior month were also found in the vehicle. The crime lab determined it was highly likely Collins’s fingerprints were on the firearm’s magazine and that Collins was likely a DNA contributor to samples from the firearm. A Cellebrite extraction of Collins’s phone showed messages consistent with drug dealing going back to October 2022. A breath test administered after arrest registered .104. After being placed in jail, Collins called Thomas from jail and asked her to ignore her subpoena so his charges could be dismissed. The jury convicted Collins on seven of eight counts: terroristic threats, use of a firearm to commit a felony, possession of a firearm while committing a drug offense, operation of a motor vehicle to avoid arrest, domestic assault in the third degree, DUI (second offense), and tampering with a witness. The district court imposed consecutive sentences with two mandatory-minimum Class IC felony sentences of 10 to 15 years and an aggregate exposure of decades in prison.
The Court’s Holding
The Nebraska Court of Appeals affirmed all convictions and sentences, rejecting six categories of assigned error.
Sufficiency of evidence. Collins argued the evidence was insufficient because no witness directly testified he was holding the gun when he made the threats. The court rejected this, noting that under Neb. Rev. Stat. § 28-1205(5), possession of a firearm may be proved through either actual or constructive possession immediately before or after a felony. A rational trier of fact could find constructive possession based on Collins’s DNA and fingerprints on the firearm found in a vehicle he was exclusively using, and could credit Thomas’s 911 call (in which Collins can be heard making the threats) over Collins’s trial testimony that Gutierrez had the gun.
IAC pleading requirements. The most significant portion of the decision addresses Collins’s ten ineffective-assistance-of-counsel (IAC) claims. Of those ten, the court resolved only the claim about the 911 call on the merits (finding objection on Confrontation Clause grounds would have been meritless because 911 calls to address an ongoing emergency are not “testimonial” under State v. Wright, 33 Neb. App. 929 (2026)). Four other claims were dismissed because they were insufficiently pled. Under State v. Rupp, 320 Neb. 502 (2025), an IAC assignment of error must identify the specific conduct alleged to constitute deficient performance within the assignment of error itself—not just in the argument section of the brief. Vague assignments like “failed to object” to a body camera video, fingerprint evidence, or a cross-examination, without identifying the legal basis for the objection in the assignment itself, do not preserve the claim on direct appeal and will not prevent a procedural bar in postconviction proceedings. Two additional claims (failure to file a motion to suppress the phone search and failure to address the Cellebrite report) were left open for a future postconviction proceeding because the record was insufficient to resolve them on direct appeal.
Prosecutorial misconduct. Collins argued the prosecutor committed misconduct by describing the Trailblazer as “Collins’ vehicle” in opening and closing argument when the vehicle was registered to Chase Gutierrez. Because Collins did not move for a mistrial, the court applied plain error review. It found no misconduct: whether Collins owned the car was not an element of any charge, and the State was entitled to argue based on Collins’s exclusive use, his bond receipts inside the car, and his own jail phone statements that the vehicle was effectively his.
Key Takeaways
- Constructive possession of a firearm under § 28-1205(5) can be proven through DNA and fingerprint evidence linking the defendant to a firearm found in a vehicle he was exclusively operating, even without testimony that he was physically holding the weapon at the time of the threat.
- Under State v. Rupp, IAC assignments of error on direct appeal must identify the specific deficient conduct in the assignment itself, not merely in the argument section; vague assignments like “failed to object” without identifying the grounds for objection will be deemed insufficiently pled and will not preserve the claim for postconviction review—defense appellate counsel must write assignments with enough specificity to stand alone.
- 911 calls made to address an ongoing emergency are not “testimonial” under the Confrontation Clause, and failure to object to their admission cannot be ineffective assistance because the objection would have been meritless.
- A motion for new trial based on insufficiency of evidence must be filed within 10 days of verdict under § 29-2103; a pro se motion filed outside that window is untimely, and a newly-discovered-evidence claim requires an affidavit and facts showing the evidence would materially affect the defendant’s substantial rights to merit a hearing.
Why It Matters
State v. Collins is worth attention for Nebraska criminal defense practitioners primarily for its restatement and application of the State v. Rupp IAC pleading standard. The message is clear: direct appeal is the mandatory vehicle for raising IAC claims that are apparent from the record, but raising them too vaguely is treated the same as not raising them at all. A defendant who is represented by new counsel on appeal must coordinate with trial counsel or carefully read the trial record to identify specific acts or omissions—the particular exhibit counsel should have challenged, the specific legal basis for the objection that was not made—and those specifics must appear in the assignment of error, not just in the argument. The procedural stakes are high: an insufficiently pled claim is procedurally barred in postconviction.
For prosecutors, the case confirms that arguing a defendant’s exclusive use and control of a vehicle does not constitute prosecutorial misconduct, even if the vehicle is technically registered to someone else, as long as the argument has an evidentiary foundation in the record. The combination of bond receipts, DNA, fingerprints, and the defendant’s own jail call statements provided ample support for the State’s characterization.