State of Nebraska v. Joseph D. Senn, Jr.

0n 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

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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 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 towit:

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).

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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 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,

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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.

[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 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

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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 notwithstanding

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 compartment

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 convicted

him of both charges. On appeal, the court acknowledged

that the pertinent statute did not require that the weapon actually

be concealed on the person, but, rather, only about the person.

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 convenient

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 accessibility

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 requirement

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. App. 353, 594

N.W.2d 310 (1999); State v. Frieze, 3 Neb. App. 263, 525

N.W.2d 646 (1994). Given this precedent, we find it appropriate

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 requirement

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 anywhere

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 testimony

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 illegal

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 firearm’s

accessibility to Senn came from the two law enforcement

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officers who both testified that Senn could not reach the firearm

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 immediate

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 carrying

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 concealed

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 statute

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 inclusion

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 statutory

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 presumption

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 impermissibly

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 shotgun’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 carrying

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 uncontroverted

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.