State v. Vann

306 Neb. 91

944 N.W.2d 503

STATE of Nebraska, appellee,

v.Abdul F. VANN, appellant.

No. S-18-928.

Supreme Court of Nebraska.

Filed June 12, 2020

Thomas P. Strigenz, Sarpy County Public Defender, and Mitchell Sell, Senior Certified Law Student, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J. Abdul F. Vann appeals his conviction for possession of a deadly weapon by a prohibited person. Vann argues that his conviction should be overturned because the State did not introduce evidence affirmatively showing that he had or waived counsel at the time of his prior felony conviction. We, however, find that there was sufficient evidence to support Vann's conviction and that the district court did not err in admitting into evidence certified court records showing that Vann had counsel at the time he was sentenced for his prior conviction, but was silent as to whether he had counsel at the time he entered his plea. Finding no error, we affirm.

BACKGROUND

This case arises out of an incident in which a law enforcement officer found a set of brass knuckles in Vann's pocket during a search. This led the State to bring charges against Vann for possession of a deadly weapon by a prohibited person and carrying a concealed weapon, among other charges.

To prove that Vann was a felon and therefore prohibited from possessing a deadly weapon, the State offered documentary evidence that Vann was convicted of possession of cocaine in the district court for Douglas County in 1992. In particular, the State offered exhibit 7, a five-page court record authenticated by the clerk of the district court for Douglas County. Exhibit 7 indicated that Vann was charged in that court with possession of cocaine and that he appeared with counsel for sentencing following a guilty plea. Nothing in exhibit 7 expressly indicated that Vann was represented by counsel at the time he entered his guilty plea or that he had waived that right. When the State offered exhibit 7, Vann's counsel stated, "I have no objection to Exhibit 7 as an authenticated, certified copy." The district court received exhibit 7 into evidence.

At the conclusion of the State's case, Vann moved to dismiss the charge of possession of a deadly weapon by a prohibited person. Vann argued that exhibit 7 did not show that he had or waived counsel at the time of his prior guilty plea and was thus insufficient to establish that Vann was a prohibited person under State v. Portsche , 258 Neb. 926, 606 N.W.2d 794 (2000). The district court denied Vann's motion to dismiss. Vann went on to introduce evidence of his own. After the conclusion of all evidence, Vann renewed his motion to dismiss on the ground that the evidence was insufficient. The district court overruled the motion.

The jury convicted Vann of both possession of a deadly weapon by a prohibited person and possession of a concealed weapon. Vann was sentenced to a term of imprisonment of 1 year for possession of a deadly weapon by a prohibited person and 6 months for possession of a concealed weapon. The sentences were ordered to be served concurrently to each other and with a sentence for a conviction in North Dakota. After Vann timely appealed, we moved the case to our docket. See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

ASSIGNMENTS OF ERROR

Vann assigns that the district court erred by (1) overruling his motion to dismiss at the conclusion of the State's case and (2) finding that exhibit 7 was a valid prior conviction that could be used to prove that he had previously been convicted of a felony.

STANDARD OF REVIEW

When reviewing a criminal conviction for sufficiency of the evidence to sustain the 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. Stubbendieck , 302 Neb. 702, 924 N.W.2d 711 (2019).

ANALYSIS

Vann's assignments of error pertain only to his conviction for possession of a deadly weapon by a prohibited person. Both of his assignments of error challenge the State's use of exhibit 7 to prove that Vann had a prior felony conviction. Vann argues that because exhibit 7 did not affirmatively show that Vann had or waived counsel at the time of his guilty plea in his prior case, his motion to dismiss should have been granted and exhibit 7 should not have been admitted into evidence. Though Vann's assignments of error are similar, they are analytically distinct and we thus consider them separately in the sections below.

Sufficiency of Evidence.

Vann's first argument is that the district court erred by denying the motion to dismiss he filed at the conclusion of the State's case. The record, however, shows that after the State rested and Vann's motion was denied, Vann put on evidence of his own. Vann thereby waived the right to challenge the district court's denial of his motion to dismiss. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State's case in chief in a criminal prosecution and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court's overruling the motion for dismissal or a directed verdict but may still challenge the sufficiency of the evidence. State v. Briggs , 303 Neb. 352, 929 N.W.2d 65 (2019).

Vann also asserts that the evidence was insufficient to support his conviction. When a criminal defendant challenges the sufficiency of the evidence upon which a conviction is based, 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. Montoya , 304 Neb. 96, 933 N.W.2d 558 (2019). In order to review whether there was sufficient evidence to support Vann's conviction for possession of a deadly weapon by a prohibited person, we must therefore first determine the essential elements of the offense.

To determine the elements of a crime, we look to the text of the statute. State v. Mann , 302 Neb. 804, 925 N.W.2d 324 (2019). The statutory definition of possession of a deadly weapon by a prohibited person in effect at the time of the offense is set forth in Neb. Rev. Stat. § 28-1206 (Reissue 2016). It provides, in pertinent part, that a person commits the offense if he or she "possesses a firearm, a knife, or brass or iron knuckles" and "has previously been convicted of a felony." The statutory text thus sets forth two elements that the State was required to prove in order to convict Vann: (1) that he possessed a firearm, a knife, or brass or iron knuckles and (2) that he had a previous felony conviction. See, also, State v. Castor , 257 Neb. 572, 599 N.W.2d 201 (1999) (finding that prior felony conviction is essential element of offense of felon in possession of firearm).

Vann does not and could not dispute that there was sufficient evidence of both of the elements listed above—there was evidence that he possessed brass knuckles and that he had a prior felony conviction. Instead, Vann argues that the evidence to convict was insufficient because it did not show that he had or waived counsel at the time of his prior conviction. Vann argues that our opinion in State v. Portsche , 258 Neb. 926, 606 N.W.2d 794 (2000), requires such evidence. As we will explain below, however, Portsche did not recognize any essential elements beyond those that appear in the text of § 28-1206, and thus, an argument based on Portsche is not properly framed as a challenge to the sufficiency of the evidence.

In Portsche , the defendant was charged with being a felon in possession of a firearm in violation of § 28-1206. At a bench trial, the State offered records of a prior plea-based conviction, but the district court found that the conviction was not valid for purposes of § 28-1206 because the records did not reflect that the defendant had an attorney or waived his right to an attorney at the time of his plea. The district court found the defendant not guilty of the charge, and the State brought an error proceeding pursuant to Neb. Rev. Stat. § 29-2315.01 (Reissue 1995). In the error proceeding, the State argued that a prior uncounseled conviction could establish that a defendant had "previously been convicted of a felony" for purposes of § 28-1206.

We rejected the State's argument in Portsche , citing a prior felon in possession case, State v. Groves , 239 Neb. 660, 477 N.W.2d 789 (1991). In Groves , the defendant argued that the trial court erred by allowing the admission of evidence that he had a prior burglary conviction. The defendant argued that evidence of his prior conviction should have been excluded because the records failed to show that at the time of his prior conviction, he had or waived counsel. We noted we had previously held in the sentence enhancement context that in order to prove a prior conviction, the State was required to prove that, at the time of the conviction, the defendant had or waived counsel. We determined the State should be required to prove the same in order to prove a prior conviction for purposes of § 28-1206. Notably, the defendant in Groves did not frame his challenge as one of insufficient evidence. Instead, he argued that evidence of a prior conviction could not be admitted without proof that the defendant had or waived counsel at the time of the prior conviction.

We understand Portsche to have adopted a rule pertaining to the admissibility of evidence of prior convictions in felon in possession prosecutions, as opposed to recognizing additional essential elements under § 28-1206. We reach this conclusion for several reasons....