State v. Senn

24 Neb.App. 160

884 N.W.2d 142

State of Nebraska, appellee,

v.Joseph D. Senn, Jr., appellant.

No. A–15–734

Court of Appeals of Nebraska.

Filed July 5, 2016

Keith M. Kollasch, of Kollasch Law Office, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and George R. Love, Lincoln, for appellee.

Inbody, Pirtl e, and Riedmann, Judges.

Riedmann, 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 incident 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 handgun retrieval by saying that Senn “went over to the U–Haul and obtained a pistol that was hidden in there.” Buckley 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 casing 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 initiated 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 passenger 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 handgun 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 basketball as a target on that occasion. He testified that he did not 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 carrying 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 concealed weapon conviction. Senn appeals from his conviction.

ASSIGNMENT OF ERROR

Senn assigns that the evidence adduced at trial was insufficient 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).

ANALYSIS

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.

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, 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 immediate physical reach,” State v. Saccomano, 218 Neb. at 436, 355 N.W.2d at 792, or whether, as the State asserted at trial, a firearm's location in the cab of the vehicle is enough to satisfy 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.

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 concealed 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 loaded revolvers were found under right front seat where they were readily accessible).

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