State v. Rupp: Nebraska Clarifies How Specifically Ineffective-Assistance Claims Must Be Pleaded on Direct Appeal

I. Introduction

In State v. Rupp, 320 Neb. 502 (Dec. 12, 2025), the Nebraska Supreme Court addressed two central issues:

• Whether the evidence was sufficient to support convictions for second degree assault and use of a deadly weapon despite the defendant’s claim of self-defense; and
• How specifically a defendant must plead claims of ineffective assistance of trial counsel in the assignments of error on direct appeal to avoid procedural bar in future postconviction proceedings.

While the court affirmed the jury’s rejection of Kyle L. Rupp’s self-defense claim on fairly conventional grounds, the lasting significance of the decision lies in its clarification—and tightening—of Nebraska’s pleading requirements for ineffective-assistance claims on direct appeal.

The opinion builds on and harmonizes earlier decisions, especially State v. Mrza, State v. Abdullah, and State v. Filholm, and it expressly disapproves part of State v. Rush. The court resolves an emerging split in approach between the Nebraska Court of Appeals majority and Judge Bishop’s concurring/dissenting view over whether appellate courts may look to the argument section of the brief to “cure” vague assignments of error.

II. Overview of the Case

A. Parties and Procedural Posture

• Appellee: State of Nebraska
• Appellant: Kyle L. Rupp
• Court: Nebraska Supreme Court (on further review from the Nebraska Court of Appeals)
• Lower court outcome: Jury convictions for second degree assault and use of a deadly weapon to commit a felony; sentences of 1–2 years’ imprisonment, concurrent.
• Court of Appeals: Affirmed; held that most ineffective-assistance claims were insufficiently raised; one claim preserved but record insufficient.

B. Factual Background (Condensed)

The key events occurred in an apartment complex where:

• Rupp, intoxicated, came to his cousin Kayla’s apartment uninvited and refused to leave.
• Kayla sought help from neighbor Sherry Clark (the victim), who answered the door with a baseball bat.
• A confrontation ensued, during which:
  • Sherry swung the bat toward Rupp; Rupp took the bat and there was a struggle.
  • Sherry was thrown into a chain-link fence and injured.
  • A neighbor observed Rupp at the gate, hitting Sherry with a bat while she cried for help.
• Rupp started walking away, but then turned back toward Sherry and Kayla, still with the bat.
• Sherry, frightened, retreated into her apartment, retrieved a 12-gauge shotgun, and attempted to fire a warning shot, but the shotgun misfired.
• Rupp grabbed the gun; a struggle followed, during which Rupp struck Sherry’s arms/hands with the bat and ultimately took the shotgun and bat, leaving with both.
• Police encountered Rupp nearby; he reported that a neighbor had pulled a shotgun on him. The gun and bat were later found hidden in bushes two blocks away.

Sherry sustained significant injuries to her wrist and arms, corroborated by photographs. Rupp testified in his own defense, portraying himself as the initial victim of Sherry’s aggression with the bat and later as acting defensively to disarm her when she pointed the shotgun at him.

The jury was instructed on self-defense. It nonetheless convicted Rupp of second degree assault and use of a deadly weapon to commit a felony.

C. Issues on Further Review

Rupp sought further review by the Nebraska Supreme Court, raising:

1. Whether the evidence was sufficient to sustain his convictions given his self-defense claim.
2. Whether he was denied effective assistance of counsel.
3. Whether specific ineffective-assistance claims were improperly held not preserved for postconviction relief, namely:
   • Failure to subpoena medical personnel who allegedly would support his version of Sherry’s hand injuries.
   • Failure to introduce a hospital video of Sherry with statements allegedly inconsistent with her trial testimony.
   • Failure to adequately prepare Rupp for trial (meeting only twice, each less than five minutes).

III. Summary of the Supreme Court’s Holding

A. On Self-Defense and Sufficiency of the Evidence

The court reaffirmed the standard that appellate review of sufficiency of the evidence asks whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements proved beyond a reasonable doubt.

Applying Nebraska’s self-defense statute (§ 28-1409) and prior case law, the court held:

• Self-defense requires both:
  • An objectively reasonable and good faith belief in the necessity of using force; and
  • That the force used was immediately necessary and justified under the circumstances.
• Self-defense is a question of fact for the jury.
• On this record, a rational jury could find that:
  • Rupp did not reasonably believe the degree of force he used was necessary; or
  • The force used was not immediately necessary and justified under the circumstances—particularly in light of evidence that he left with the bat and then chose to return with it.

Therefore, the evidence was sufficient to support the convictions, and the Court of Appeals did not err in affirming the verdict.

B. On Ineffective Assistance and Specificity Requirements

The court used this case as a vehicle to clarify Nebraska’s procedural law on how ineffective-assistance-of-counsel claims must be raised on direct appeal.

Key holdings:

1. Assignments of error themselves must specifically identify the deficient act or omission.
   The assignment must, standing alone:
   • Permit the appellate court to determine whether the claim can be decided on the existing trial record; and
   • Enable a future postconviction court to recognize that the specific claim was raised and preserved on direct appeal.
2. The argument section of the brief cannot cure a vague or generalized assignment of error.
   The argument section is for legal analysis and discussion of the record, not for unveiling for the first time the specific deficient conduct alleged.
3. Generalities are not enough.
   Vague claims such as “failed to subpoena beneficial witnesses,” “failed to introduce beneficial evidence,” or “failed to adequately prepare” do not satisfy the specificity requirement.
4. Uncalled witnesses require names or adequate descriptions.
   When the ineffective-assistance claim involves uncalled witnesses, the assignment must include the witnesses’ names or descriptions. What they would testify to may be described but is not strictly required to be detailed.
5. Detailed allegations of prejudice are not required at this stage.
   Consistent with Filholm, the defendant need not set out detailed prejudice facts in the assignment of error.
6. Rush is disapproved to the extent it suggested otherwise.
   To the extent State v. Rush allowed courts to treat the argument section as supplying missing specificity in assignments, it is disapproved.

Applying these principles, the court held that Rupp’s initial assignments of error to the Court of Appeals alleging failures to:

• Subpoena “beneficial” witnesses,
• Introduce “beneficial” evidence, and
• Effectively and adequately prepare for trial,

were insufficiently specific. Because trial and appellate counsel were different, and those deficiencies were known or apparent to Rupp, the insufficiently stated claims are treated as not raised at all for procedural-bar purposes.

The only preserved ineffective-assistance claim was the one clearly and specifically assigned and argued: that counsel failed to seek revival of an earlier plea agreement after Rupp changed his mind. The court agreed with the Court of Appeals that the record was insufficient to decide that claim on direct appeal.

Result: The Nebraska Supreme Court affirmed the Court of Appeals’ judgment in full.

IV. Analysis

A. Precedents and Doctrinal Context

1. The Self-Defense Framework

The court’s treatment of self-defense is largely conventional, drawing on:

• Neb. Rev. Stat. § 28-1409 (Reissue 2016): Nebraska’s core justification statute for the use of force in self-protection.
• State v. Allen, 314 Neb. 663, 992 N.W.2d 712 (2023) (modified on denial of rehearing, 315 Neb. 255, 995 N.W.2d 446), cert. denied 144 S. Ct. 1070 (2024).
• State v. Johnson, 314 Neb. 20, 988 N.W.2d 159 (2023).
• State v. Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978).
• State v. Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997); State v. Warren, 9 Neb. App. 60, 608 N.W.2d 617 (2000).

These authorities underpin two recurring points:

• Elements of self-defense:
  • A subjective, good faith belief that force is necessary; and
  • An objectively reasonable belief that the force used is immediately necessary to protect against unlawful force.
• Role of the jury:
  • Claims of self-defense are classic fact questions for the jury.
  • Appellate courts give heavy deference to the jury’s resolution of conflicting witness accounts.

The court harmonizes § 28-1409’s allowance for “stand your ground” (no duty to retreat) with its insistence that the degree of force used must still be reasonable and immediately necessary under the perceived circumstances.

2. Procedural Bar and Ineffective Assistance: Abdullah, Filholm, and German

Rupp’s case sits at the intersection of Nebraska’s rule requiring ineffective-assistance claims to be raised on direct appeal and the evolving specificity standard for such claims. The court traces its doctrine through several key decisions:

• State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014)
  • Established that when a defendant has new counsel on direct appeal, all known or apparent ineffective-assistance-of-trial-counsel claims must be raised on direct appeal or else be procedurally barred in later postconviction proceedings.
  • Imposed a “two-prong” requirement for sufficient particularity:
    1. The appellate court must be able to determine whether the claim can be decided on the trial record; and
    2. A later postconviction court must be able to recognize that the specific claim was raised and preserved on direct appeal.
  • Emphasized that specificity expectations should be calibrated to what is reasonably knowable by the defendant, such as names or descriptions of uncalled witnesses that the defendant knows he or she identified to trial counsel.
• State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014)
  • Clarified that an appellant need not provide detailed factual allegations of prejudice in order to preserve an ineffective-assistance claim.
  • Reasoning: Detailed prejudice facts often involve information outside the trial record and beyond what the defendant can reasonably access during the direct appeal timeframe.
• State v. German, 316 Neb. 841, 7 N.W.3d 206 (2024)
  • Applied and reinforced the post-Abdullah framework for assessing the sufficiency of ineffective-assistance assignments.
  • Helped form the doctrinal backdrop for the Court of Appeals’ approach in Rupp.

3. The Pivotal Shift in Mrza and Its Progeny

The decisive doctrinal shift comes from State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019) (disapproved on other grounds by State v. Hagens, 320 Neb. 65, 26 N.W.3d 174 (2025)).

In Mrza, the court announced a new, stricter briefing rule:

• The assignment of error itself must “specifically allege deficient performance.”
• The court explicitly stated it would no longer “scour” the argument section of the brief to extract specific allegations of deficient performance.
• Briefs filed after April 19, 2019 (the date of Mrza), must comply with this standard.

Subsequent cases applied this rule rigorously:

• State v. Archie, 305 Neb. 835, 943 N.W.2d 252 (2020)
  • General assignment: “denied effective assistance of trial counsel.”
  • Specific deficiencies described only in the argument section.
  • Holding: insufficient; the assignment itself must specifically allege deficient performance. The deficiency could not be cured in the reply brief.
• State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020)
  • Assignment alleged ineffective assistance “in numerous instances as more particularly set out hereinafter.”
  • Holding: insufficient; the court rejected the idea of reading this assignment in conjunction with the headings in the argument section.
• State v. Npimnee, 316 Neb. 1, 2 N.W.3d 620 (2024)
  • Assignments failed to allege specific ways counsel was ineffective.
  • Result: No specific ineffective-assistance claims preserved on direct appeal.
• State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019)
  • Assignment: failure to “engage in pretrial litigation.”
  • Held too vague, though the argument section was consulted because the brief predated Mrza.
• State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021)
  • Assignment: counsel filed a last-minute motion to suppress and was “ill-prepared.”
  • Held overly broad and conclusory—failed to specify what was deficient about the preparation.
• State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021)
  • Assignment: failure to move for a new trial.
  • Defect: No identification of the ground(s) on which such a motion should have been based.
• State v. Haas, 317 Neb. 919, 12 N.W.3d 787 (2024)
  • Assignment: counsel failed to disclose a health condition that impaired his ability to represent the defendant.
  • Held insufficient: the health condition itself is not deficient conduct, and the generic allegation that it “impaired” counsel was too vague to test against the record.

In State v. Rush, 317 Neb. 622, 11 N.W.3d 394 (2024) (modified 317 Neb. 917, 12 N.W.3d 787), the court, arguably contrary to Mrza, treated a somewhat general assignment (“inadequately prepared [the defendant] to testify”) as if clarified by the argument section (referring to a “combative stance” toward the prosecutor). In Rupp, the court now explicitly disapproves Rush insofar as it departed from the Mrza line.

B. The Court’s Legal Reasoning in Rupp

1. Self-Defense and Sufficiency of the Evidence

The court applied standard sufficiency-of-the-evidence review: viewing the evidence in the light most favorable to the State and giving the State the benefit of reasonable inferences.

Key evidentiary points supporting the jury’s rejection of self-defense:

• Rupp was intoxicated, uninvited, and refused repeated demands to leave Kayla’s apartment area.
• Sherry armed herself with a bat after hearing an escalating confrontation and Kayla’s reference to calling the police.
• Witness accounts and physical evidence supported:
  • Rupp throwing Sherry into the fence.
  • Rupp striking Sherry with the bat at or near the gate.
  • Sherry’s injuries being more extensive than could be easily reconciled with Rupp’s description of gentle “pokes or prods.”
• Crucially, after obtaining the bat and beginning to leave, Rupp chose to return with the bat—behavior a jury could interpret as aggressive, not defensive.
• Although Sherry armed herself with a shotgun and attempted a warning shot, the jury could conclude Rupp’s response (continued use of physical force, including with a bat) exceeded what was reasonably necessary to disarm her under the circumstances.

Given this, the court held that a rational jury could conclude that:

• Rupp did not have an objectively reasonable and good faith belief that the force used was immediately necessary; or
• Even if he harbored such a belief subjectively, it was not objectively reasonable, especially after he returned with the bat.

Because self-defense is a jury question and multiple reasonable interpretations of the evidence existed, the Supreme Court declined to second-guess the jury’s verdict.

2. Specificity of Ineffective-Assistance Assignments: Clarifying the Standard

The central doctrinal work of Rupp addresses how precise an assignment of error alleging ineffective assistance of counsel must be.

a. The Underlying Procedural-Bar Framework

The court reiterates several foundational rules:

• When trial and appellate counsel differ, known or record-apparent ineffective-assistance-of-trial-counsel claims must be raised on direct appeal, or they are procedurally barred in later postconviction proceedings. (Abdullah; Stelly.)
• A procedurally barred trial-ineffectiveness claim can sometimes be repackaged as an appellate-ineffectiveness claim, but that is a distinct issue for postconviction review.
• Whether an assignment of error is too vague is a pure question of law.

b. What Counts as a “Specific” Assignment?

The court distills and sharpens its prior case law into a clear rule:

A specific enough description of deficient performance in the assignment of error must, standing alone, permit an appellate court to determine if the claim can be decided upon the trial record and permit a district court to later recognize if the claim was brought before the appellate court.

This has several components:

• The assignment must identify the concrete act or omission alleged to be deficient (e.g., “failing to call Dr. X, who treated the victim on [date]” or “failing to file a motion to suppress statement Y on ground Z”).
• The assignment must go beyond:
  • Generic characterizations like “inadequate preparation,”
  • Undifferentiated “failures to introduce beneficial evidence,” or
  • Bare allegations of “numerous instances” of ineffectiveness.
• For uncalled-witness claims, it must provide the names or sufficiently specific descriptions of those witnesses.
• For motion-related failures, it must specify on what ground a motion should have been filed or what was omitted from a filed motion.

Importantly, the court reaffirms Filholm: the assignment need not lay out detailed prejudice facts; its focus is on the deficient performance prong, not the prejudice prong of Strickland.

c. Role of the Argument Section

The court draws a sharp line between the assignment and the argument sections:

• The assignment of error identifies the specific act or omission allegedly constituting deficient performance.
• The argument section is where counsel:
  • Cites authority,
  • Analyzes the legal standard,
  • Applies the standard to the record; and
  • Explains why the alleged deficiency meets the Strickland test (deficient performance + prejudice).

But the argument section may not supply, for the first time, the specific act that should have been pleaded in the assignment. The court refuses to consider the argument section to cure an otherwise vague or overbroad assignment. This is a key rejection of the approach advocated by Judge Bishop’s partial dissent in the Court of Appeals, which treated assignments and arguments as conjunctively sufficient where they aligned.

d. Application to Rupp’s Assignments

Rupp’s initial assignments of error to the Court of Appeals included the following (paraphrased) allegations:

• Trial counsel failed to subpoena “requested witnesses” who would have been beneficial.
• Trial counsel failed to introduce “beneficial” evidence at trial.
• Trial counsel failed to effectively and adequately prepare for jury trial.

Only in the argument section did Rupp:

• Identify categories of witnesses (doctors, nurses, EMTs, a neighbor, and a dispatcher) and suggest their general testimony about Sherry’s hospital statements;
• Refer to specific types of evidence (body-camera footage, hospital video, doorbell camera footage); and
• Claim that trial counsel met with him only twice, briefly, before trial.

Under Mrza and its progeny, the Supreme Court held these assignments were insufficient because:

• They did not, standing alone, identify:
  • The names or descriptions of any uncalled witnesses;
  • The particular evidence (e.g., “hospital video of Sherry on [date]”) that should have been introduced; or
  • Specific aspects of trial preparation that were deficient as reflected in trial performance.
• They functioned at the level of generalities: “beneficial witnesses,” “beneficial evidence,” “inadequate preparation.”

By contrast, the court agreed the assignment concerning plea negotiations was sufficiently specific—trial counsel’s failure to re-approach the State about a previously offered plea agreement after Rupp changed his mind—and that the record was insufficient to determine the merits of that claim on direct appeal.

e. Disapproval of Rush and Alignment of the Case Law

The court candidly acknowledges that in Rush it “was perhaps too generous” in looking to the argument section to add missing specificity to an assignment stating only that trial counsel inadequately prepared the defendant to testify. It now expressly disapproves Rush “to the extent” it conflicts with Mrza and its progeny.

The result is an aligned, stringent rule: the assignment itself is the exclusive reference point for whether a claim of ineffective assistance is sufficiently stated for preservation and procedural-bar purposes.

C. Impact and Practical Significance

1. For Appellate Practitioners

Rupp is a clear directive to Nebraska appellate counsel: vague or high-level ineffective-assistance assignments are no longer safe. Counsel must:

• Draft discrete assignments for each alleged deficiency, e.g.:
  • “Trial counsel was ineffective for failing to call Dr. [Name], the ER physician who treated the victim on [date], as a witness.”
  • “Trial counsel was ineffective for failing to move to suppress the defendant’s custodial statement given on [date] on the ground that no Miranda warnings were administered.”
• Include unambiguous identifiers (names, dates, document descriptions), especially for uncalled witnesses and omitted evidence.
• Avoid “umbrella” formulations like “in numerous instances” or “including but not limited to.”

Because Nebraska ties direct-appeal presentation to later postconviction availability, poorly drafted assignments now risk permanent forfeiture of potentially meritorious ineffectiveness claims, absent an eventual showing of appellate-counsel ineffectiveness.

2. For Postconviction Litigation

Postconviction courts must:

• Examine the direct-appeal assignments of error as filed, not the appellate argument, to decide whether a particular ineffective-assistance theory was preserved or is procedurally barred.
• Treat insufficiently specific direct-appeal assignments as if the claim was never raised.

This significantly clarifies the record-review task for postconviction courts and eliminates ambiguity about whether a faintly similar but broadly worded direct-appeal assignment preserved a particular theory now being advanced.

3. For Defendants and the Criminal Bar

From a defendant’s perspective, Rupp makes the choice of appellate counsel and the quality of appellate briefing especially critical:

• Direct appeal becomes the primary—and often only—chance to preserve many trial-ineffectiveness claims.
• Defendants must ensure they convey to appellate counsel:
  • The specific witnesses they asked trial counsel to call;
  • Specific evidence they believe should have been introduced or excluded; and
  • Concrete complaints about trial preparation.

At a systemic level, the ruling encourages more careful, fact-specific development of ineffective-assistance theories at the appellate stage, potentially narrowing and focusing postconviction litigation.

4. Substantive Criminal Law: Self-Defense

While the primary doctrinal development is procedural, the case does also:

• Reaffirm that Nebraska’s “no duty to retreat” feature does not grant a license to escalate force unreasonably.
• Underscore that leaving an altercation and then returning armed (here, with a bat) may undermine a self-defense claim.
• Illustrate how juries may weigh:
  • Initial aggression versus later defensive acts; and
  • The proportionality of the defendant’s response to a perceived threat.

These points will likely inform future fact patterns involving mixed roles of aggressor and defender in dynamic confrontations.

V. Complex Concepts Simplified

1. “Procedural Bar” in Simple Terms

A claim is “procedurally barred” when the court refuses to consider it because the defendant did not follow the required procedural steps at the right time—even if the claim might otherwise have merit.

In Nebraska ineffective-assistance law:

• If you had a new lawyer on appeal, and
• You knew (or the record showed) something your trial lawyer did wrong, but
• You did not properly raise that specific complaint on direct appeal,

then you generally cannot bring that same complaint later in a postconviction proceeding. It is barred because the system expects it to have been raised earlier.

2. “Assignment of Error” vs. “Argument Section”

• Assignment of error: A short, formal statement of what exactly the trial court (or trial counsel) did wrong. Think of it as the heading of a claim:
  • Example: “The district court erred in overruling the defendant’s motion to suppress his confession.”
  • Example: “Trial counsel was ineffective in failing to call witness John Smith, the only eyewitness besides the victim.”
• Argument section: The detailed explanation under each assignment:
  • Discusses legal standards.
  • Points to specific parts of the trial transcript or exhibits.
  • Explains why the law and facts show error and prejudice.

In Rupp, the court insists that assignments must be specific enough on their own, without relying on the argument section to clarify what is being claimed.

3. Self-Defense Basics Under § 28-1409

In straightforward terms, Nebraska’s self-defense law says:

• You can use force if:
  • You honestly believe it is needed right now to protect yourself from unlawful force, and
  • A reasonable person would agree that belief and the amount of force used were justified in the situation as you believed it to be.
• You generally don’t have to run away or give up property before defending yourself.
• However, if you use more force than is reasonably necessary, your self-defense claim can fail.

In Rupp’s case, the jury could reasonably decide that, even if Sherry acted aggressively at times, Rupp’s response—especially returning with the bat and the extent of the force used—went beyond what was immediately necessary to protect himself.

4. Ineffective Assistance of Counsel: The Core Idea

Under the familiar Strickland test (though not fully re-articulated in this opinion), to win an ineffective-assistance claim a defendant must show:

1. Deficient performance: Counsel’s work fell below what a reasonably competent lawyer would have done; and
2. Prejudice: There is a reasonable probability that, without the errors, the result would have been different.

Rupp concerns mainly step (1)—what counts as a properly pleaded allegation of “deficient performance” at the appellate stage—not whether prejudice has been proven.

VI. Conclusion

State v. Rupp is a dual-purpose decision. On the surface, it is an unremarkable affirmance of assault and weapon-use convictions against a self-defense challenge, emphasizing that self-defense is a fact-sensitive inquiry entrusted to the jury. On a deeper level, it marks a significant clarification in Nebraska appellate practice regarding how ineffective-assistance-of-counsel claims must be preserved.

By insisting that assignments of error themselves must specifically describe the allegedly deficient acts or omissions—without reliance on the argument section—the court:

• Gives clear guidance to appellate lawyers about the level of detail required.
• Simplifies the task for future postconviction courts in determining what was and was not preserved.
• Reinforces the linkage between direct appeal and postconviction review in Nebraska’s procedural-bar framework.
• Aligns and, where necessary, corrects its own precedent (notably disapproving Rush in part) to create a coherent, predictable standard.

The case thus stands as a key reference point for Nebraska practitioners: if an ineffective-assistance claim is not specifically laid out in the assignment of error, it is as though it was never raised at all for purposes of avoiding procedural bar. At the same time, the court keeps the prejudice pleading burden modest, preserving room for factual development in postconviction proceedings when claims are properly preserved but not fully resolvable on the trial record.

In sum, Rupp strengthens procedural discipline in appellate briefing while reaffirming well-established self-defense principles. Its primary legacy lies in shaping how future Nebraska criminal appeals must be framed to keep the door open for meaningful review of claims that counsel’s performance at trial was constitutionally inadequate.