State v. Senn ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/05/2016 11:12 AM CDT
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State of Nebraska, appellee, v.
Joseph D. Senn, Jr., appellant.
___ N.W.2d ___
Filed July 5, 2016. No. A-15-734.
1. Criminal Law: Weapons. Neb. Rev. Stat. § 28-1202 (Cum. Supp.
2014) provides that generally, any person who carries a weapon or
weapons concealed on or about his or her person, such as a handgun, a
knife, brass or iron knuckles, or any other deadly weapon, commits the
offense of carrying a concealed weapon.
2. Pleadings: Appeal and Error. An appellate court will decide a case on
the theory on which it was presented in the trial court.
3. Criminal Law: Weapons. The purpose of Neb. Rev. Stat. § 28-1202
(Cum. Supp. 2014), Nebraska’s concealed weapon statute, is to prevent
the carrying of weapons because of the opportunity and temptation to
use them which arise from concealment.
4. Weapons: Words and Phrases. A weapon is concealed on or about the
person if it is concealed in such proximity to the driver of an automobile
as to be convenient of access and within immediate physical reach.
5. Weapons: Evidence. Neb. Rev. Stat. § 28-1212 (Reissue 2008) provides
that the presence in a motor vehicle of any firearm shall be prima facie
evidence that it is in the possession of, and is carried by, all persons
occupying such motor vehicle at the time such firearm is found, unless
such firearm is found upon the person of one of the occupants.
Appeal from the District Court for Richardson County:
Daniel E. Bryan, Jr., Judge. Reversed and remanded with
directions to dismiss.
Keith M. Kollasch, of Kollasch Law Office, L.L.C., for
appellant.
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Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
Inbody, Pirtle, and R iedmann, Judges.
R iedmann, Judge.
INTRODUCTION
Following a jury trial in the district court of Richardson
County, Nebraska, Joseph D. Senn, Jr., was convicted of
carrying a concealed weapon and acquitted of three other
charges—attempted second degree murder, use of a firearm to
commit a felony, and terroristic threats. A second terroristic
threat charge was dismissed following the State’s presentation
of evidence. On appeal, Senn argues that the evidence was
insufficient to support his conviction of carrying a concealed
weapon. We agree and accordingly reverse the conviction and
remand the cause with directions to dismiss.
BACKGROUND
On October 4, 2014, Senn drove a U-Haul truck to the
home of Buckley Auxier with the purpose of assisting Natalie
Auxier in removing some of her possessions from the home.
At that time, Natalie and Buckley were involved in divorce
proceedings. Buckley is a farmer, and his farmhand Shaun
Robertson was also present at Buckley’s home during the inci-
dent and testified in court. Upon arriving, Senn represented
to Buckley that he had been directed by Natalie’s lawyer
to retrieve her property. Buckley began yelling at Senn and
Natalie. Using obscene language, he directed them to leave
his home.
Buckley testified at trial that at this point, Senn returned
to the U-Haul and pulled out a handgun. When asked where
in the U-Haul the handgun had been stored, Buckley replied,
“It might have been underneath the seat. I don’t know. It was
in the U-Haul, easy to reach.” Robertson described the hand-
gun retrieval by saying that Senn “went over to the U-Haul
and obtained a pistol that was hidden in there.” Buckley
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and Robertson testified that Senn then pointed the gun at
Robertson and ordered him to “‘[g]et back in the house . . . .’”
They testified that Senn then pointed the handgun at Buckley,
pulled the trigger, and fired a shot—but missed. Buckley states
that after firing the shot, Senn left the premises with Natalie
in the U-Haul. Senn testified that he left the property when
the confrontation grew heated and that he neither retrieved the
handgun nor fired a shot at Buckley.
Buckley stated that he telephoned law enforcement officers
immediately after Senn departed from the property. Buckley
and Robertson testified that they discovered a spent shell cas-
ing on the property after Senn left. Robertson testified that the
shell casing smelled like it had just been fired.
The Richardson County Sheriff and his deputy intercepted
the U-Haul some distance from Buckley’s property and initi-
ated a traffic stop. Senn was driving the U-Haul, and Natalie
was riding as a passenger. During the stop, the deputy noticed
a blue plastic manufacturer’s firearms box behind the passen-
ger seat in the U-Haul. The firearms box contained a 9-mm
semiautomatic handgun. The deputy testified that given the
location of the firearms box during the stop, the driver of the
vehicle could not have reached the weapon while driving. The
sheriff testified that the firearms box was found “against the
wall of the truck — between the passenger seat and the right
side wall of the truck, partially behind the seat, with some
clothing on top of it” and that “it was completely on the other
side of the cab” from the driver.
Senn admitted that the handgun in the blue plastic case
belonged to him. A forensic scientist testified to his opinion
that the shell casing found on Buckley’s property was fired
from the handgun found in the U-Haul during the traffic
stop. Senn testified that although he had not fired his hand-
gun on October 4, 2014, he had visited Buckley’s property
approximately a week earlier with Natalie to remove other
possessions and had fired several shots using an old basket-
ball as a target on that occasion. He testified that he did not
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remove all of the shell casings after firing the handgun the
week before.
During closing arguments, the State and defense counsel
presented opposing views about whether the elements of carry-
ing a concealed weapon had been met. The State asserted that
the pistol “was found on or about his person [given that it] was
found in the driver’s compartment of the U-Haul vehicle when
[the sheriff and deputy] conducted the traffic stop. There’s no
doubt that the elements [of] carrying a concealed weapon[]
have been met.” Defense counsel argued that the pistol was not
“on or about his person” because the pistol “was unreachable”
during the traffic stop.
The jury instruction on the concealed weapon charge states
that the elements the State must prove beyond a reasonable
doubt on that charge are “(1) That . . . Senn . . . ; (2) On or
about October 4, 2014; (3) In Richardson County, Nebraska;
(4) Did carry a weapon concealed on or about his person to-
wit: 9mm semi-automatic handgun.”
After deliberation, the jury found Senn guilty of carrying
a concealed weapon and not guilty of the remaining charges.
The district court sentenced Senn to a fine of $200 on the con-
cealed weapon conviction. Senn appeals from his conviction.
ASSIGNMENT OF ERROR
Senn assigns that the evidence adduced at trial was insuf-
ficient to support the jury’s guilty verdict for the charge of
carrying a concealed weapon.
STANDARD OF REVIEW
When reviewing the sufficiency of the evidence to support
a conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016).
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ANALYSIS
[1] Senn’s only argument on appeal is that the evidence
adduced at trial was insufficient to demonstrate that during the
traffic stop the handgun was concealed “on or about” Senn’s
person as required by Neb. Rev. Stat. § 28-1202 (Cum. Supp.
2014), Nebraska’s statute prohibiting carrying a concealed
weapon. Section 28-1202 provides:
(1)(a) Except as otherwise provided in this section, any
person who carries a weapon or weapons concealed on or
about his or her person, such as a handgun, a knife, brass
or iron knuckles, or any other deadly weapon, commits
the offense of carrying a concealed weapon.
[2] A weapon is concealed on or about the person if it is
concealed in such proximity to the driver of an automobile
as to be convenient of access and within immediate physi-
cal reach. State v. Saccomano, 218 Neb. 435, 355 N.W.2d
791 (1984). At trial, the State argued that the elements of the
concealed weapon statute were met based upon the handgun’s
location in the cab of the U-Haul at the time the sheriff and
deputy conducted a traffic stop. On appeal, the State argues
that the jury could have found that Senn carried a concealed
weapon immediately before he allegedly shot at Buckley.
However, as a general rule, an appellate court will decide
a case on the theory on which it was presented in the trial
court. Nelson v. Cool, 230 Neb. 859, 434 N.W.2d 32 (1989).
Therefore, we consider only the argument presented at trial—
that Senn carried a concealed weapon when stopped by the
sheriff and deputy.
The issue in this appeal is the meaning of the statutory
language “concealed on or about [the defendant’s] person.”
§ 28-1202. Specifically, we consider whether, as Senn argues,
a weapon inside the cab of a vehicle but in a location where it
could not be reached by the driver is not “in such proximity to
the driver . . . as to be convenient of access and within imme-
diate physical reach,” State v. Saccomano, 218 Neb. at 436,
355 N.W.2d at 792, or whether, as the State asserted at trial,
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a firearm’s location in the cab of the vehicle is enough to sat-
isfy the element that the weapon be concealed “on or about”
the defendant’s person. We note that no jury instruction was
tendered to define the phrase “on or about” the defendant’s
person and that the prosecutor and the defense counsel argued
conflicting definitions in closing arguments.
[3,4] The purpose of § 28-1202, Nebraska’s concealed
weapon statute, is to prevent the carrying of weapons because
of the opportunity and temptation to use them which arise from
concealment. State v. Saccomano, supra. In applying the con-
cealed weapon statute to the vehicular context, the Nebraska
Supreme Court has held that “[a] weapon is concealed on or
about the person if it is concealed in such proximity to the
driver of an automobile as to be convenient of access and
within immediate physical reach.” State v. Saccomano, 218
Neb. at 436, 355 N.W.2d at 792. Nebraska case law has not
specifically addressed whether a firearm concealed within the
cab of the vehicle but outside the reach of the driver may be
considered to be “within immediate physical reach” of the
driver. See id.
In Nebraska vehicular concealed weapon cases, physical
proximity to the driver is an essential factor in determining
whether a weapon is concealed “on or about” one’s person
under § 28-1202. The majority of Nebraska case law finding
firearms to be concealed “on or about” the person of a motor
vehicle’s driver have specified that the firearm was within
physical access or reach of the driver. See, State v. Saccomano,
supra (defendant carried concealed weapon when he operated
automobile with gun concealed under front seat); Kennedy v.
State, 171 Neb. 160, 105 N.W.2d 710 (1960) (defendant, who
was driving vehicle, was guilty of carrying concealed weapon
where two revolvers were found on center of back seat where
they were readily accessible to occupants of vehicle); Phillips
v. State, 154 Neb. 790, 49 N.W.2d 698 (1951) (defendant
driver convicted of carrying concealed weapon where two
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loaded revolvers were found under right front seat where they
were readily accessible).
In State v. Goodwin, 184 Neb. 537, 169 N.W.2d 270
(1969), the Nebraska Supreme Court considered the question
of whether a weapon within easy reach of a defendant still
satisfied the concealed weapon statute if it were in a locked
container. In Goodwin, the defendant concealed a weapon in
his locked glove compartment. The Nebraska Supreme Court
relied upon the weapon’s physical proximity to the driver
and the driver’s command of the situation to find the weapon
to be concealed “on or about” the person of the driver not-
withstanding the lock. Id. The Goodwin court referred to the
reasoning of an Ohio court presented with similar facts and
law, which emphasized that a glove compartment is “within
easy reach” of the driver and that locking the glove compart-
ment should not save a defendant from conviction when the
locked or unlocked status of the glove compartment is the
driver’s choice and under his immediate command. Id. at 542,
169 N.W.2d at 274, citing City of Cleveland v. Betts, 107 Ohio
App. 511, 148 N.E.2d 708 (1958), affirmed 168 Ohio St. 386,
154 N.E.2d 917. The reasoning in Goodwin therefore confirms
that physical proximity is an essential factor in determining
whether a weapon is concealed “on or about” one’s person
under § 28-1202.
Other states with similar concealed weapon statutes have
considered the question of whether a weapon within the cab
of a vehicle but outside the reach of the driver is concealed
“on or about” the person of the driver and have concluded as
we do that it is not. In The People v. Niemoth, 322 Ill. 51,
152 N.E. 537 (1926), the Illinois Supreme Court reversed a
conviction of carrying a concealed weapon, determining that
two firearms could not be said to be concealed “on or about”
the defendant’s person where there was no evidence that he
could have “reached them without moving from his position
in the front seat.” Id. at 53, 152 N.E. at 537. The Illinois court
went on to opine that to hold otherwise would improperly
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extend the statute into one barring all transportation of loaded
firearms in vehicles. Id. See, also, The People v. Liss, 406 Ill.
419, 94 N.E.2d 320 (1950) (reversing conviction for carrying
concealed weapon and holding that immediate accessibility
of weapon requires that it be within easy reach of one who
need not make appreciable change in his position in order
to use it).
Similarly, a North Carolina appellate court reversed a jury
verdict finding a defendant guilty of carrying a concealed
weapon based on insufficiency of the evidence. State v. Soles,
191 N.C. App. 241, 662 S.E.2d 564 (2008). In Soles, a search
of a van revealed a loaded pistol in a backpack located in the
rear of the van. A state statute made it illegal for a person “‘to
carry concealed about his person’” a deadly weapon. Id. at
243, 662 S.E.2d at 566. The driver was charged as a felon in
possession and for carrying a concealed weapon. A jury con-
victed him of both charges. On appeal, the court acknowledged
that the pertinent statute did not require that the weapon actu-
ally be concealed on the person, but, rather, only about the per-
son. It recognized that cases addressing this requirement “have
focused on the ready accessibility of the weapon, such that it
was ‘within the reach and control of the person charged.’” Id.
at 244, 662 S.E.2d at 566, quoting State v. Gainey, 273 N.C.
620, 160 S.E.2d 685 (1968).
Reviewing the evidence, the North Carolina court noted
that the State did not present any evidence of the backpack’s
precise location in the van and that the State conceded the
record was silent as to this issue. Emphasizing that it was the
State’s burden to prove each element of the crime, including
that the firearm was concealed in close proximity and within
the defend­ant’s convenient control and easy reach, it concluded
the trial court should have granted the defendant’s motion to
dismiss at the close of the State’s case. See id. Accordingly,
it reversed the defendant’s conviction and remanded the cause
with instructions to dismiss the charges. Like these other
jurisdictions, the Nebraska Supreme Court has interpreted the
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phrase “concealed on or about” the person of a driver to
mean “in such proximity to the driver . . . as to be conve-
nient of access and within immediate physical reach,” State v.
Saccomano, 218 Neb. 435, 436, 355 N.W.2d 791, 792 (1984),
and all of our case law has focused on the physical accessibil-
ity of the firearm. We further note that under Nebraska law,
the construction of what it means to conceal a weapon “on
or about” one’s person is distinct from the broader concept
of “possessing” a weapon. In contrast to the specific require-
ment that a weapon concealed “on or about” a driver’s person
must be “convenient of access and within immediate physical
reach,” State v. Saccomano, supra, “possession” requires only
knowing dominion or control over an object even if that object
is physically remote. See, State v. Long, 8 Neb. Ct. App. 353, 594
N.W.2d 310 (1999); State v. Frieze, 3 Neb. Ct. App. 263, 525
N.W.2d 646 (1994). Given this precedent, we find it appropri-
ate in this case to interpret “within immediate physical reach”
of a driver to mean within Senn’s reach at the time he was
pulled over. To hold otherwise would disregard the require-
ment that the firearm be “within immediate physical reach” and
would obliterate the distinction between carrying a concealed
weapon and mere possession.
In this case, the evidence establishes that the sheriff and
deputy uncovered the firearm in a part of the U-Haul where
Senn could not reach it when he was apprehended. The deputy
who conducted the traffic stop testified that the driver of the
vehicle could not have reached the weapon while driving.
The sheriff agreed that the firearms box was completely on
the other side of the cab from the driver’s seat. The State’s
assertion during closing arguments that a gun found any-
where in the driver’s compartment of a vehicle is “on or
about” the person of the driver is an overbroad statement of
the law because it neglects the Nebraska Supreme Court’s
requirement that the weapon be “convenient of access and
within immediate physical reach” of a driver. See State v.
Saccomano, 218 Neb. at 436, 355 N.W.2d at 792. It was the
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State’s burden to prove that the firearm was concealed on
or about Senn’s person, which, under the facts of this case,
we interpret to mean in a location that Senn could reach at
the time he was pulled over. Because the uncontroverted tes-
timony in this case establishes that the gun was not within
immediate physical reach of Senn, the evidence is insufficient
to support a conviction that Senn was carrying a concealed
weapon at the time of the traffic stop. Accordingly, we reverse
Senn’s conviction and direct that the charge against him
be dismissed.
The dissent argues that State v. Goodwin, 184 Neb. 537,
169 N.W.2d 270 (1969), and Kennedy v. State, 171 Neb. 160,
105 N.W.2d 710 (1960), expand the meaning of the phrase
“within immediate physical reach” to “include situations in
which access [to the weapon] may require a two-step process
or require some change in position of the driver.” We disagree
with this interpretation, because in both Goodwin and Kennedy
there is no indication that the defendants were required to
move from their seats in order to access the weapons. To the
contrary, both cases identify the weapons as being “within easy
reach” or “readily accessible” to the defendants.
We also think this interpretation too broadly expands the
concept of a weapon being “on or about” one’s person and,
as the Illinois court notes in The People v. Niemoth, 322 Ill.
51, 152 N.E. 537 (1926), this interpretation could make it ille-
gal to transport any firearm in a vehicle that does not have a
separate trunk compartment. This is particularly the case given
the Goodwin court’s refusal to hold that a lock prevents a
proximate weapon from being “on or about” the person. Were
we to adopt the dissent’s expanded proximity for carrying a
concealed weapon, a defendant could be found to be carrying
a concealed weapon even if he transported the weapon in a
locked firearms box in an out-of-reach location in the cab of
a vehicle.
[5] In the case before us, the only evidence as to the fire-
arm’s accessibility to Senn came from the two law enforcement
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officers who both testified that Senn could not reach the fire-
arm at the time he was pulled over. Given the State’s burden
to prove the weapon was concealed “on or about” Senn’s
person, as defined by case law to mean “in such proximity to
the driver . . . as to be convenient of access and within imme-
diate physical reach,” see State v. Saccomano, 218 Neb. 435,
436, 355 N.W.2d 791, 792 (1984), we determine the evidence
was insufficient to sustain the conviction. The dissent also
contends that pursuant to Neb. Rev. Stat. § 28-1212 (Reissue
2008), the evidence was sufficient to present a jury question
and therefore, given our standard of review, we should not
reverse. Section 28-1212 states:
The presence in a motor vehicle . . . of any firearm . . .
shall be prima facie evidence that it is in the possession
of and is carried by all persons occupying such motor
vehicle at the time such firearm . . . is found, [unless]
such firearm . . . is found upon the person of one of the
occupants . . . .
However, given the phrasing of § 28-1212, presence in the
vehicle constitutes prima facie evidence only that the firearm
is “carried,” but does not speak to the additional statutory
requirement of § 28-1202 that the weapon be concealed “on
or about” the person of the defendant. An appellate court will,
if possible, give effect to every word, clause, and sentence of
a statute, since the Legislature is presumed to have intended
every provision of a statute to have a meaning. State v. Covey,
290 Neb. 257, 859 N.W.2d 558 (2015).
In § 28-1202, the phrase “on or about his or her person”
modifies the word “concealed” and adds a locational element,
defining where that weapon must be concealed in order to
sustain a conviction. Therefore, giving meaning to every word
or phrase of § 28-1212, the elements of the crime of carry-
ing a concealed weapon are that (1) “any person” (2) “who
carries” (3) “a weapon” (4) “concealed” (5) “on or about his
or her person” then “commits the offense of carrying a con-
cealed weapon.”
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Section 28-1212 creates a statutory presumption that a
firearm in a vehicle is carried by any person within the
vehicle, which speaks to elements (1), (2), and (3) above.
However, § 28-1212 says nothing about elements (4) and
(5) of § 28-1202. In asserting that a weapon’s presence in a
vehicle is prima facie evidence sufficient to submit a carrying
a concealed weapon charge to the jury, the dissent appears to
presume that elements (4) and (5) of the charge—“concealed
on or about [the defendant’s] person,”—are encompassed by
the words “carried by” in § 28-1212. This construction denies
meaning to the Legislature’s use of the phrase “on or about his
or her person” in its definition of the offense. See § 28-1202.
Under the plain meaning of § 28-1202, the phrase “on or about
his or her person” is not duplicative of the word “carries” in
§ 28-1202, but instead modifies where the weapon must be
concealed in order to secure a conviction. Indeed, there would
be no reason for the Legislature to include the phrase “on
or about his or her person” if that location were necessarily
implied by the word “carries.”
We note that the U.S. Supreme Court, in construing the
meaning of the phrase “carries a firearm,” has held that the
phrase does not refer exclusively to carrying a weapon upon
the person but may also refer to carrying a weapon in the
trunk of a vehicle. Muscarello v. United States, 524 U.S. 125,
118 S. Ct. 1911, 141 L. Ed. 2d 111 (1998). While the stat-
ute at issue in that case differs from the one before us, the
U.S. Supreme Court’s construction of this phrase supports our
understanding that § 28-1212 is not prima facie evidence of
a violation of § 28-1202. Therefore, the Legislature’s inclu-
sion of the requirement that a weapon be concealed “on or
about [the defendant’s] person” is a meaningful element that
prevents a conviction for carrying a weapon in a location such
as a trunk of the vehicle that is not accessible to the person of
the defendant.
Further, we have significant case law defining the statu-
tory phrase “on or about his or her person” in the context of
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weapons discovered in vehicles, as outlined elsewhere in this
opinion. If § 28-1212 created a prima facie case that a weapon
was “on or about” the person of all occupants of a vehicle, this
case law would be superseded.
In sum, § 28-1212 creates a presumption that a firearm in
a vehicle is carried by its passengers; it does not create a pre-
sumption that a firearm in a vehicle is “concealed on or about”
the driver. Its inapplicability to prove all the elements of the
crime of carrying a concealed weapon is exemplified in State
v. Jasper, 237 Neb. 754, 467 N.W.2d 855 (1991).
In State v. Jasper, supra, the Nebraska Supreme Court
disapproved of a jury instruction incorporating the language
of § 28-1212 in a case involving a charge of possession of a
short shotgun. Although the primary basis for its decision was
that an instruction creating a presumption of guilt impermis-
sibly relieves the State of its burden of persuasion beyond
a reasonable doubt of every essential element of a crime, it
also highlighted the statute’s limitation. The court noted that
such an instruction may lead a juror to conclude that the shot-
gun’s presence established the defendant’s commission of the
firearms crime. This would be erroneous because the crime
required proof not only of possession, but that the defendant
willfully, intentionally, and knowingly possessed the firearm.
The court stated that “the crime charged was not ‘presence in
a vehicle containing a short shotgun,’ but was ‘possessing a
short shotgun.’” State v. Jasper, 237 Neb. at 763, 467 N.W.2d
at 861.
Likewise, in the present case, Senn was charged with car-
rying a concealed weapon, not just presence in a vehicle
containing a concealed weapon. Because the presence of the
firearm in the vehicle does not create a prima facie case that
the weapon was located “on or about” the person of Senn,
§ 28-1212 does not preclude a reversal of the conviction on the
basis of insufficiency of the evidence.
The Nebraska Supreme Court has said that a weapon is
concealed “on or about” the person if it is concealed “in such
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proximity to the driver . . . as to be convenient of access and
within immediate physical reach.” State v. Saccomano, 218
Neb. 435, 436, 355 N.W.2d 791, 792 (1984). Since the uncon-
troverted evidence regarding the weapon’s location in this case
is that it was not within the driver’s immediate physical reach,
it was not concealed “on or about [Senn’s] person” and the
evidence is insufficient to support the conviction.
CONCLUSION
Following our review of the record considering the evi-
dence in the light most favorable to the State, we reverse,
and remand to the district court with directions to dismiss
this action.
R eversed and remanded with
directions to dismiss.
Pirtle, Judge, dissenting.
I agree with the majority that the issue in this case is what
it means for a weapon to be “concealed on or about [the
defendant’s] person.” See Neb. Rev. Stat. § 28-1202 (Cum.
Supp. 2014). However, I respectfully dissent with the major-
ity’s interpretation of the statutory language and its decision to
reverse Senn’s conviction.
Senn’s sole argument on appeal is that the evidence adduced
at trial was insufficient to support the jury’s verdict for the
charge of carrying a concealed weapon. His motion to dis-
miss on that basis made at the end of the State’s evidence was
overruled by the trial court. I also note that Senn’s attorney
made no objections to any of the 12 proposed jury instruc-
tions, nor did he tender any proposed jury instructions that
would have further defined what it means for a weapon to be
concealed “on or about [Senn’s] person.”
I would conclude that the evidence was sufficient to place
the issue before the jury based on Neb. Rev. Stat. § 28-1212
(Reissue 2008). In determining whether the evidence is suffi-
cient to place the issue before a jury, § 28-1212 provides:
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The presence in a motor vehicle . . . of any firearm . . .
shall be prima facie evidence that it is in the possession
of and is carried by all persons occupying such motor
vehicle at the time such firearm . . . is found, [unless]
such firearm . . . is found upon the person of one of the
occupants . . . .
See State v. Jasper, 237 Neb. 754, 758, 467 N.W.2d 855, 858
(1991) (explaining that “‘[p]rima facie evidence’” means proof
presented on issue is sufficient to submit issue to jury).
Given the evidence adduced at trial, it was appropriate for
the issue to be submitted to the jury for its determination. The
jury decided, after considering the evidence presented and
the instructions it was given, that Senn was guilty of carrying
a concealed weapon. Our standard of review in this case is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
See State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016).
Given our standard of review in this case, I believe that there
was sufficient evidence to support the jury’s verdict and that
Senn’s conviction should be affirmed.
As set forth in the majority opinion, the Nebraska Supreme
Court has held that “[a] weapon is concealed on or about the
person if it is concealed in such proximity to the driver of an
automobile as to be convenient of access and within immediate
physical reach.” State v. Saccomano, 218 Neb. 435, 436, 355
N.W.2d 791, 792 (1984). After relying on Illinois and North
Carolina law, the majority concludes that “within immedi-
ate physical reach” of a driver means within Senn’s reach at
the time he was pulled over. I believe the Nebraska Supreme
Court’s decisions in State v. Goodwin, 184 Neb. 537, 169
N.W.2d 270 (1969), and Kennedy v. State, 171 Neb. 160, 105
N.W.2d 710 (1960), indicate otherwise.
In State v. Goodwin, supra, a loaded pistol was found in
the locked glove compartment of the defendant’s automobile
during a postarrest search. The defendant testified that the gun
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had been locked inside the glove compartment for over a year.
The Supreme Court affirmed the defendant’s conviction for
carrying a concealed weapon. It stated:
Is a loaded pistol locked in a glove compartment
concealed on or about the person of the driver? We
determine that it is. The words “concealed on or about
the person” mean concealed in such close proximity
to the driver as to be convenient of access and within
immediate physical reach. As we said in Kennedy v.
State, . . . a weapon is concealed when it is hidden from
ordinary observation and is readily accessible on his
person or in a motor vehicle operated by the defendant.
In that case the arresting officer opened the back door
of defendant’s car and found two loaded revolvers on
the back seat.
State v. Goodwin, 184 Neb. at 541-42, 169 N.W.2d at 273.
In State v. Goodwin, supra, there was no evidence as to
whether the defendant had the key to the glove compart-
ment when his vehicle was stopped, nor did the court con-
sider whether the defendant actually could have retrieved
the weapon from the locked glove compartment. Instead, the
Supreme Court found the evidence to be sufficient that the
defendant had intentionally concealed the weapon in an acces-
sible location and had control of and operated the vehicle.
See id.
Further, there was no mention in the Supreme Court’s deci-
sion of what type or size of vehicle the defendant had been
driving, and thus, it is not clear whether the gun was actually
“within immediate physical reach” of the defendant while in
the driver’s seat.
In Kennedy v. State, supra, after the defendant was arrested,
a police officer opened a back door of the defendant’s vehicle
and found, visible for the first time, two revolvers lying
beside a satchel and on top of an overcoat in the center of the
back seat. The Supreme Court stated that the guns were read-
ily accessible to the occupants of the vehicle and concluded
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that the evidence was sufficient to support the guilty verdict
on the concealed weapons charge.
I believe Goodwin and Kennedy extend the “within immedi-
ate physical reach” component to include situations in which
access may require a two-step process or require some change
in position of the driver. In Goodwin, the defendant would
have had to unlock the glove compartment, assuming he had
the key, and then retrieve the gun. The majority acknowledges
that Goodwin stretches the requirement that the firearm be
“within immediate physical reach.”
Similarly, in Kennedy, the guns were on the back seat and
found to be readily accessible. However, we do not know
whether the defendant driver could have reached the guns on
the back seat without changing his position to some extent.
I believe the present case is similar to State v. Goodwin, 184
Neb. 537, 169 N.W.2d 270 (1969), and to Kennedy v. State,
171 Neb. 160, 105 N.W.2d 710 (1960). The gun was in a fire-
arms box in the cab of the U-Haul “partially behind the seat,
with some clothing on top of it.” Although the sheriff testified
that Senn could not have reached the weapon while driving, a
jury could have determined that it was in a location that was
generally “readily accessible” and within immediate physical
reach of Senn. While reaching the weapon would have required
some maneuvering, this situation is analogous to the locked
glove compartment in State v. Goodwin, supra.
Further, the evidence at trial showed that Senn could not
have reached the weapon while driving. Although the Nebraska
Supreme Court has interpreted “on or about” the person of
the driver to mean “convenient of access and within immedi-
ate physical reach,” see State v. Goodwin, supra, and State
v. Saccomano, 218 Neb. 435, 355 N.W.2d 791 (1984), it has
never said that the weapon must be within physical reach of the
driver while driving.
Given our standard of review requiring us to view the evi-
dence in the light most favorable to the prosecution, I would
conclude that any rational trier of fact could have found
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beyond a reasonable doubt that Senn was concealing a firearm
on or about his person.
Further, the Nebraska Supreme Court has stated that the
Legislature recognized that there may be mere technical viola-
tions without criminal intent and, therefore, provided the courts
with great latitude in the imposition of penalties. Bright v.
State, 125 Neb. 817, 252 N.W. 386 (1934). It is worthy of note
that under § 28-1202, a first offense is a Class I misdemeanor
and subsequent offenses are Class IV felonies. Neither carries
a minimum penalty. See Neb. Rev. Stat. §§ 28-106 and 28-105
(Cum. Supp. 2014). In this case, Senn was fined only $200.
Therefore, a decision affirming this conviction would not lead
to unintended consequences. I believe the jury’s verdict in this
case should have been affirmed.