Underwood v. Nebraska State Patrol ( 2014 )

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Tony Underwood, appellant, v.
Nebraska State Patrol, appellee.
___ N.W.2d ___
Filed January 17, 2014. No. S-13-207.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the decision made by the court below.
2. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
3. ____: ____: ____. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.
4. Judgments: Appeal and Error. Whether a decision conforms to law is by defi-
nition a question of law, in connection with which an appellate court reaches a
conclusion independent of that reached by the lower court.
5. Statutes: Legislature: Intent: Appeal and Error. In discerning the meaning of
a statute, an appellate court must determine and give effect to the purpose and
intent of the Legislature as ascertained from the entire language of the statute
considered in its plain, ordinary, and popular sense.
6. Criminal Law: Weapons: Licenses and Permits: Criminal Attempt. The
obvious purpose of Neb. Rev. Stat. § 69-2433 (Cum. Supp. 2012) is to prevent
people with a demonstrated propensity to commit crimes, including crimes
involving acts of violence, from carrying concealed weapons so as to minimize
the risk of future gun violence. An attempt to commit a crime is indicative of
future behavior, and in the context of § 69-2433(5), the attempt itself is an act
of violence.
Appeal from the District Court for Douglas County: W.
Mark Ashford, Judge. Affirmed.
Lawrence G. Whelan and Dennis Whelan, of Whelan Law
Office, for appellant.
Jon Bruning, Attorney General, and Jody R. Gittins for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
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Miller-Lerman, J.
NATURE OF CASE
Tony Underwood appeals the order of the district court
for Douglas County in which it affirmed the decision of the
Nebraska State Patrol (State Patrol) denying Underwood’s
application for a permit to carry a concealed handgun. The
Concealed Handgun Permit Act (the Act) is found at Neb.
Rev. Stat. § 69-2427 et seq. (Reissue 2009 & Cum. Supp.
2012). Under § 69-2433(5) of the Act, a permit will be denied
an applicant who has “been convicted of a misdemeanor
crime of violence under the laws of this state . . . within
the ten years immediately preceding the date of applica-
tion.” In 2008, Underwood was convicted at a jury trial of
attempted third degree sexual assault of a child, a Class I
misdemeanor. Underwood applied for a concealed handgun
permit in December 2011. Underwood claims that attempted
third degree sexual assault of a child was not a “crime of vio-
lence” under § 69-2433(5) and that the State Patrol and the
district court erred when they concluded that Underwood’s
application should be denied. We find no errors on the record,
and affirm.
STATEMENT OF FACTS
In December 2011, Underwood filed an application for a
concealed handgun permit with the State Patrol. On the appli-
cation, he answered “No” to the question, “Have you ever
plead [sic] guilty or no contender [sic] or been convicted of
a felony or crime of violence in any jurisdiction.” On January
19, 2012, the State Patrol sent Underwood a letter stating that
his application had been denied for the reason that he had
been convicted of a crime of violence, specifically “attempted
sexual assault.”
Underwood petitioned for an administrative hearing to
contest the decision denying his application. The hearing
was held on June 6, 2012. Evidence admitted at the hear-
ing showed that Underwood had been charged in 2006 with
third degree sexual assault of a child, in violation of Neb.
Rev. Stat. § 28-320.01 (Reissue 2008). Section 28-320.01(1)
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provides that “[a] person commits sexual assault of a child
in the second or third degree if he or she subjects another
person fourteen years of age or younger to sexual contact
and the actor is at least nineteen years of age or older,” and
§ 28-320.01(3) provides that “[s]exual assault of a child is in
the third degree if the actor does not cause serious personal
injury to the victim.”
Sheriff’s reports admitted into evidence at the administra-
tive hearing showed that a girl who was 12 years old at the
time of the incident alleged that Underwood, who was then
32 years old, had walked into a room where she was sleeping,
put his hand under her shirt, and ran his hand up toward her
chest, where he rubbed her; the girl said that he might have
touched her breast, but she was not sure. Underwood went to
trial in 2008, and a jury found him guilty of attempted third
degree sexual assault of a child. Reading § 28-320.01(3) and
Neb. Rev. Stat. § 28-201(4)(e) (Reissue 2008) together, the
conviction was a Class I misdemeanor. Under § 28-320.01(3),
third degree sexual assault of a child is a Class IIIA felony
for the first offense, and under § 28-201(4)(e), a criminal
attempt is a Class I misdemeanor when the crime attempted is
a Class IIIA or Class IV felony.
Following the administrative hearing, the hearing officer
recommended affirming the denial of Underwood’s applica-
tion. The hearing officer noted in his findings of fact and
conclusions of law that at the time Underwood filed his appli-
cation, the Act provided that an applicant for a permit shall
“[n]ot have pled guilty to, not have pled nolo contendere to, or
not have been convicted of a misdemeanor crime of violence
under the laws of this state or under the laws of any other
jurisdiction within the ten years immediately preceding the
date of application.” See § 69-2433(5) (Cum. Supp. 2010).
The hearing officer further noted that the statute had been
amended effective April 19, 2012, to provide that an applicant
shall “[n]ot have been convicted of a misdemeanor crime of
violence under the laws of this state or under the laws of any
other jurisdiction within the ten years immediately preceding
the date of application.” See § 69-2433(5) (Cum. Supp. 2012).
The hearing officer determined that the amendment did not
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affect the outcome of this matter, an assessment with which
neither Underwood nor this court disagrees.
In determining whether Underwood had committed a “crime
of violence,” the hearing officer did not consider the sheriff’s
report which contained the victim’s allegations but instead
considered the elements of the crime of which Underwood
was convicted. The hearing officer noted that the term “crime
of violence” was not defined in the Act. The hearing officer
looked to case law, including State v. Palmer, 224 Neb. 282,
294, 399 N.W.2d 706, 717 (1986), in which this court stated
that a crime of violence is “an act which injures or abuses
through the use of physical force.” With this understand-
ing of the phrase “crime of violence,” the hearing officer
determined that third degree sexual assault of a child was a
“crime of violence” and further determined that for purposes
of § 69-2433(5), an attempt to commit a crime of violence is
itself a crime of violence. The hearing officer stated that the
Act was “concerned with the future behavior of a holder of
a permit” and that “§ 69-2433 specifies past crimes, circum-
stances and behaviors deemed relevant to future behavior.” The
hearing officer reasoned that “[o]ne who attempts to commit a
crime of violence has manifested the past behavior which is”
relevant to future behavior.
The hearing officer determined that because Underwood
had been convicted of attempted third degree sexual assault
of a child in 2008, Underwood had been convicted of a mis-
demeanor crime of violence within the 10 years immediately
preceding the date of his application in 2011, and that there-
fore the State “was justified in denying the application under
§ 69-2433(5).” On June 20, 2012, the State Patrol agency
head adopted the hearing officer’s recommendation and denied
Underwood’s application.
Underwood petitioned the district court for review of the
State Patrol’s decision under the Administrative Procedure
Act, Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008 &
Cum. Supp. 2012). A hearing was conducted on December 3,
2012. On March 1, 2013, the court filed an order in which it
affirmed the State Patrol’s denial of Underwood’s application.
The court stated in its order that the Act “is designated [sic]
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by the legislature to restrict the ability to carry a concealed
weapon to those persons not believed to be threatening to
society.” The court agreed with the hearing officer’s reason-
ing that “an individual who attempts to commit a crime of
violence is one who has manifested in their past behavior
the inability to carry a concealed weapon and obtain such
permit.” The court determined that Underwood’s conviction
for attempted third degree sexual assault of a child disquali-
fied him from obtaining a concealed handgun permit under
§ 69-2433(5) of the Act.
Underwood appeals the district court’s order which affirmed
the denial of his application for a concealed handgun permit by
the State Patrol.
ASSIGNMENT OF ERROR
Underwood claims that the district court erred when it con-
cluded that attempted third degree sexual assault of a child is
a “crime of violence” under § 69-2433(5) and affirmed the
denial of his application for a concealed handgun permit.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court
below. Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804
N.W.2d 611 (2011).
[2-4] A judgment or final order rendered by a district court in
a judicial review pursuant to the Administrative Procedure Act
may be reversed, vacated, or modified by an appellate court for
errors appearing on the record. J.P. v. Millard Public Schools,
285 Neb. 890, 830 N.W.2d 453 (2013). When reviewing an
order of a district court under the Administrative Procedure Act
for errors appearing on the record, the inquiry is whether the
decision conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable. Id.
Whether a decision conforms to law is by definition a question
of law, in connection with which an appellate court reaches
a conclusion independent of that reached by the lower court.
Skaggs v. Nebraska State Patrol, supra.
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ANALYSIS
Section 69-2433 of the Act describes the characteristics an
applicant must possess to receive a permit, as well as facts
which disqualify an applicant. Section 69-2433(5) at issue in
this case provides that an applicant shall “[n]ot have been con-
victed of a misdemeanor crime of violence under the laws of
this state or under the laws of any other jurisdiction within the
ten years immediately preceding the date of application.” Other
statutory disqualifying facts include § 69-2433(2) (prohibited
under “18 U.S.C. 922”), § 69-2433(4) (convicted of felony),
and § 69-2433(8) (convicted of any law relating to firearms,
unlawful use of weapon, or controlled substances).
Underwood concedes that by its terms, a conviction of third
degree sexual assault of a child under § 28-320.01 is a crime
of violence for purposes of § 69-2433(5) and therefore would
disqualify an individual from receiving a concealed handgun
permit. We agree. See, also, State v. Nelson, 235 Neb. 15,
453 N.W.2d 454 (1990) (referring to statutory sexual assault
as crime of violence). Underwood contends, however, that an
attempt to commit third degree sexual assault of a child is not
a crime of violence under § 69-2433(5). Underwood asserts
that the district court erred when it found to the contrary and
affirmed the denial of his application for a concealed handgun
permit. We reject Underwood’s argument.
As an initial matter, we observe that there is nothing in the
plain language of § 69-2433 which invites us to examine the
particular facts underlying the disqualifying convictions to
which reference is made, and we decline to do so. It is the fact
of conviction which gives rise to the disqualification, not the
factual details of the crime. Accordingly, we look to the ele-
ments of the statutes underlying the conviction in this case to
determine whether Underwood’s misdemeanor conviction for
attempted third degree sexual assault of a child was for a crime
of violence for purposes of § 69-2433(5).
We briefly recite or paraphrase the relevant criminal stat-
utes. A person commits sexual assault of a child in the third
degree if he or she subjects another person 14 years of age
or younger to sexual contact and the actor is at least 19 years
of age or older. § 28-320.01(1). Sexual assault of a child is in
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the third degree if the actor does not cause serious personal
injury to the victim. § 28-320.01(3). “Sexual contact” means
the intentional touching of a victim’s sexual or intimate parts
and shall include only such conduct which can be reasonably
construed as being for the purpose of sexual arousal or gratifi-
cation. See Neb. Rev. Stat. § 28-318(5) (Cum. Supp. 2012). A
person is guilty of an attempt to commit a crime if one inten-
tionally engages in conduct which would constitute the crime
if the attendant circumstances were as he or she believes them
to be or which, under the circumstances as he or she believes
them to be, constitutes a substantial step in a course of conduct
intended to culminate in his or her commission of the crime.
§ 28-201(1).
The expression “crime of violence” in § 69-2433(5) is not
defined. Underwood suggests we apply criminal case law to
determine the meaning of the expression “crime of violence”
as used in § 69-2433(5). Under this approach and relying on
criminal cases such as State v. Palmer, 224 Neb. 282, 399
N.W.2d 706 (1986), Underwood contends that “physical force”
is required for a crime of violence and that the absence of
physical force in the attempted crime at issue precludes a find-
ing of a crime of violence under § 69-2433(5). Underwood’s
reasoning is flawed.
[5] At issue in this case is the meaning of “crime of vio-
lence” as used in § 69-2433(5). Statutory interpretation pre­
sents a question of law, for which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below. Skaggs v. Nebraska
State Patrol, 282 Neb. 154, 804 N.W.2d 611 (2011). This
statute is found in chapter 69 (“Personal Property”), article 24
(“Guns”), of the Nebraska Revised Statutes. The provisions of
§ 69-2433 dealing with concealed handgun permits constitute
a civil statute. Application of the intricacies of criminal law
jurisprudence on which Underwood heavily relies is not well
suited to implementation of this civil permit statute. Instead, to
determine the meaning of “crime of violence” in § 69-2433(5),
we should look, as the State Patrol and district court did, to the
conventional rule of statutory construction that in discerning
the meaning of a statute, we must determine and give effect to
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the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordi-
nary, and popular sense. Watkins v. Watkins, 285 Neb. 693, 829
N.W.2d 643 (2013).
The hearing officer concluded that the Act
is concerned with the future behavior of a holder of a
[gun] permit. § 69-2433 specifies past crimes, circum-
stances and behaviors deemed relevant to future behavior.
One who attempts to commit a crime of violence has
manifested the past behavior which is the focus of the act
rather than the, at times, fortuitous outcome or success of
that behavior.
We agree with the foregoing observation, as did the dis-
trict court.
[6] Section 69-2433 lists numerous convictions which serve
to disqualify an applicant from receiving a concealed hand-
gun permit. The obvious purpose of § 69-2433 is to prevent
people with a demonstrated propensity to commit crimes,
including crimes involving acts of violence, from carrying
concealed weapons so as to minimize the risk of future gun
violence. Regardless of which definition of attempt is applied,
Underwood stands convicted of having attempted to commit
third degree sexual assault of a child. An attempt to commit
a crime is indicative of future behavior, and in the context
of § 69-2433(5), we believe the attempt itself is an act of
violence. Thus, Underwood has “been convicted of a misde-
meanor crime of violence” under § 69-2433(5), as the district
court so determined.
CONCLUSION
The district court affirmed the State Patrol’s decision that
Underwood’s conviction of attempted third degree sexual
assault of a child was a crime of violence under § 69-2433(5)
and disqualified him from receiving a concealed handgun per-
mit. Finding no error, we affirm.
Affirmed.