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State of Nebraska v. Joseph D. Senn , Jr.
Date: 12-18-2016
Case Number: 295 Neb. 315
Judge: Max J. Kelch
Court: Nebraska Supreme Court
Plaintiff's Attorney:
Douglas J. Peterson, Attorney General
Defendant's Attorney: Keith M. Kollasch
Description:
Senn was charged in the district court for Richardson County, Nebraska, with attempted second degree murder, use of a firearm to commit a felony, two counts of terroristic threats, and carrying a concealed weapon. Following a jury trial, he was convicted of carrying a concealed weapon but was acquitted of the remaining charges. The evidence at trial established that Senn argued with Buckley Auxier while assisting Natalie Auxier in removing some of her possessions from Buckley’s home. At that time, Natalie and Buckley were involved in divorce proceedings. When Buckley directed them to leave, Senn allegedly returned to the U-Haul truck he had driven there and pulled out a handgun. When asked where in the U-Haul the handgun had been stored, Buckley testified, “It might have been underneath
the seat. I don’t know. It was in the U-Haul, easy to reach.”
Buckley’s hired hand, who also witnessed the incident, testified
that Senn “went over to the U-Haul and obtained a pistol
that was hidden in there.” According to Buckley and his hired
hand, Senn pointed the handgun at Buckley and fired a shot,
but missed. Senn and Natalie then got into the U-Haul and left
the premises. Senn testified that he left the property when the
confrontation grew heated, but denied that he ever retrieved the
handgun or fired a shot at Buckley.
Buckley contacted law enforcement immediately after Senn
departed from the property. The Richardson County Sheriff
and his deputy encountered the U-Haul 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. It contained a 9-mm semiautomatic handgun, which
Senn admitted belonged to him.
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’s seat. The deputy testified
that given the location of the firearms box during the stop,
the driver of the vehicle could not have reached the handgun
while driving.
A forensic scientist testified regarding his opinion that a
spent shell casing found on Buckley’s property was fired from
the handgun found in the U-Haul. Senn testified that he did
not fire his handgun on the date of the alleged offenses, but
that he had visited Buckley’s property with Natalie approximately
1 week earlier and had fired several shots using an old
basketball as a target. He testified that he did not collect all
of the shell casings after firing the handgun on that occasion.
However, Buckley’s hired hand testified that the spent shell
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Nebraska Supreme Court Advanc e Sheets
295 Nebraska Reports
STATE v. SENN
Cite as 295 Neb. 315
casing found on the property shortly after the incident smelled
like it had just been fired. Buckley testified that he found two
more shell casings on his property 2 days after the incident
with Senn.
The district court instructed the jury that the State must
prove the following elements beyond a reasonable doubt for
the carrying a concealed weapon charge: “(1) That . . . Senn
. . . ; (2) On or about October 4, 2014; (3) In Richardson
County . . . ; (4) Did carry a weapon concealed on or about
his person to-wit: 9mm semi-automatic handgun.” The jury
was not instructed regarding the meaning of the phrase “on or
about his person.” During the instruction conference, neither
party objected to the instructions relating to the concealed
weapon charge.
During closing arguments, the State asserted that the handgun
was “on or about [Senn’s] person” because it was found
in the driver’s compartment of the U-Haul truck during the
traffic stop. Defense counsel argued that the handgun was not
“on or about [Senn’s] person” because it was unreachable during
the traffic stop.
After the jury found Senn guilty of carrying a concealed
weapon, the district court fined him $200, plus court costs.
Senn appealed. He argued that the evidence adduced at trial
was insufficient to support his conviction because the State
did not prove that the handgun was concealed “on or about”
his person as required by Neb. Rev. Stat. § 28-1202(1)(a)
(Reissue 2016). The State argued that the handgun’s location
in the cab of the vehicle driven by Senn was enough to satisfy
the element that the weapon be concealed “on or about”
Senn’s person, even if it was not within his reach while driving.
Additionally, the State argued that the jury could have
found that Senn carried a concealed weapon not only during
the traffic stop, but also immediately before he allegedly shot
at Buckley.
The Court of Appeals reversed Senn’s conviction for carrying
a concealed weapon. See State v. Senn, 24 Neb. App. 160,
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Nebraska Supreme Court Advanc e Sheets
295 Nebraska Reports
STATE v. SENN
Cite as 295 Neb. 315
884 N.W.2d 142 (2016). In a split decision, it found that the
evidence was insufficient to support Senn’s conviction because
the uncontroverted testimony established that the handgun was
not within Senn’s immediate physical reach at the time of the
traffic stop. Citing a civil case, the Court of Appeals declined
to address the State’s argument that Senn could have committed
the offense just before he allegedly shot at Buckley, on
the basis that the State did not argue that theory at trial. See
Nelson v. Cool, 230 Neb. 859, 434 N.W.2d 32 (1989) (as general
rule, appellate court will decide case on theory on which it
was presented in trial court).
We granted the State’s petition for further review.
ASSIGNMENTS OF ERROR
In its petition for further review, the State assigns that the
Court of Appeals erred in (1) refusing to consider an argument
made on appeal, on the basis that it was different from the
theory argued by the State at trial, and (2) finding insufficient
evidence to support the jury’s guilty verdict.
STANDARD OF REVIEW
[1] 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
On further review, the State assigns that the Court of Appeals
erred in finding insufficient evidence to support the jury’s
guilty verdict. Accordingly, our standard of review requires
us to consider whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found that Senn’s handgun was “concealed
on or about his . . . person,” as provided in § 28-1202. See
State v. Irish, supra. Under this standard, we conclude that
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Nebraska Supreme Court Advanc e Sheets
295 Nebraska Reports
STATE v. SENN
Cite as 295 Neb. 315
the State presented sufficient evidence to support the jury’s
guilty verdict.
In reversing Senn’s conviction, the Court of Appeals relied
on the deputy’s testimony that the location of the handgun in
the vehicle was such that Senn could not have reached it while
driving and the sheriff’s testimony that the handgun was “completely
on the other side of the cab” from the driver’s seat.
From this testimony, the Court of Appeals deduced that “both
testified that Senn could not reach the firearm at the time he
was pulled over.” State v. Senn, 24 Neb. App. 160, 170, 884
N.W.2d 142, 149 (2016). However, we note that the sheriff
did not testify regarding Senn’s ability to reach the handgun,
only regarding its location. Based on its interpretation of the
officers’ testimony alone, the Court of Appeals found that “the
uncontroverted testimony in this case establishes that the gun
was not within immediate physical reach of Senn.” Id. at 169,
884 N.W.2d at 148. We disagree.
[2-4] The State charged Senn pursuant to § 28-1202(1)(a),
which provides: “Except as otherwise provided in this section,
any person who carries a weapon or weapons concealed on or
about his . . . person, such as a handgun, a knife, brass or iron
knuckles, or any other deadly weapon, commits the offense of
carrying a concealed weapon.” (Emphasis supplied). In applying
this statute in the context of an automobile, we have 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). Accord State v. Goodwin, 184 Neb. 537,
169 N.W.2d 270 (1969). And in Nebraska, the word “driver”
includes “any person who operates, drives, or is in actual
physical control of a vehicle.” See Neb. Rev. Stat. § 60-642
(Reissue 2010).
The Court of Appeals relied on testimony establishing that
Senn could not reach the handgun while driving, but that testimony
did not speak to whether he could have reached it in
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Nebraska Supreme Court Advanc e Sheets
295 Nebraska Reports
STATE v. SENN
Cite as 295 Neb. 315
other driving situations, such as while the vehicle was stopped.
Neither § 28-1202 nor case law requires that the weapon be
within the defendant’s reach while driving in order to be considered
“on or about his person.” In fact, in Kennedy v. State,
171 Neb. 160, 170-71, 105 N.W.2d 710, 718 (1960), where the
defendant was one of several occupants in the vehicle, we held
that a weapon is concealed when it is hidden from ordinary
observation and is “readily accessible on [the] person [of] or
in a motor vehicle operated by [the] defendant.” (Emphasis
supplied). Further, in State v. Goodwin, 184 Neb. at 541, 169
N.W.2d at 273, we affirmed the jury’s factual finding and held
that a loaded pistol found in a locked glove compartment during
a postarrest search was concealed “on or about” the person
of the driver because it was concealed in an accessible location
over which the defendant had control.
[5] Although the Court of Appeals stated the proper standard
of review, it essentially focused its analysis on contemplating
a legal definition of “on or about his person.” However,
similarly to Goodwin, due to the presence of a handgun in the
passenger compartment of Senn’s vehicle, there was sufficient
evidence to pose a factual question for the jury to determine
whether the handgun was concealed on or about his person.
In framing this factual question for the jury, the district court
instructed the jury as to the elements of § 28-1202, elements
that the State was required to prove beyond a reasonable
doubt. And as a general rule, in giving instructions to the jury,
it is proper for the court to describe the elements of the offense
in the language of the statute. See State v. Erpelding, 292 Neb.
351, 874 N.W.2d 265 (2015).
The jury, after being instructed on the elements of
§ 28-1202, ultimately found that Senn carried the handgun
concealed on or about his person, which is all that is required
by the statute. Neither the statute nor the instruction limited
the jury’s consideration to a particular time or location for the
charged offense, except for the date and the county specified
by the instruction. Certainly, as a rational trier of fact, the
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Nebraska Supreme Court Advanc e Sheets
295 Nebraska Reports
STATE v. SENN
Cite as 295 Neb. 315
jury considered the evidence that Senn could not reach the
handgun while driving. However, this evidence represented
but one factor for the jury’s deliberation, along with the other
evidence received at trial, in reaching its verdict.
[6] Only where evidence lacks sufficient probative value as
a matter of law may an appellate court set aside a guilty verdict
as unsupported by evidence beyond a reasonable doubt. State
v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). Viewing
the evidence in the light most favorable to the prosecution, we
conclude that the jury, as a rational trier of fact, could have
found that the handgun was on or about Senn’s person, even
though it was not within his reach while driving.
Because we find that the Court of Appeals erred in reversing
Senn’s conviction on the basis of insufficient evidence, we
decline to address the State’s remaining assignment of error.
See State v. Planck, 289 Neb. 510, 856 N.W.2d 112 (2014)
(appellate court is not obligated to engage in analysis that is
not necessary to adjudicate case and controversy before it).
the seat. I don’t know. It was in the U-Haul, easy to reach.”
Buckley’s hired hand, who also witnessed the incident, testified
that Senn “went over to the U-Haul and obtained a pistol
that was hidden in there.” According to Buckley and his hired
hand, Senn pointed the handgun at Buckley and fired a shot,
but missed. Senn and Natalie then got into the U-Haul and left
the premises. Senn testified that he left the property when the
confrontation grew heated, but denied that he ever retrieved the
handgun or fired a shot at Buckley.
Buckley contacted law enforcement immediately after Senn
departed from the property. The Richardson County Sheriff
and his deputy encountered the U-Haul 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. It contained a 9-mm semiautomatic handgun, which
Senn admitted belonged to him.
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’s seat. The deputy testified
that given the location of the firearms box during the stop,
the driver of the vehicle could not have reached the handgun
while driving.
A forensic scientist testified regarding his opinion that a
spent shell casing found on Buckley’s property was fired from
the handgun found in the U-Haul. Senn testified that he did
not fire his handgun on the date of the alleged offenses, but
that he had visited Buckley’s property with Natalie approximately
1 week earlier and had fired several shots using an old
basketball as a target. He testified that he did not collect all
of the shell casings after firing the handgun on that occasion.
However, Buckley’s hired hand testified that the spent shell
- 318 -
Nebraska Supreme Court Advanc e Sheets
295 Nebraska Reports
STATE v. SENN
Cite as 295 Neb. 315
casing found on the property shortly after the incident smelled
like it had just been fired. Buckley testified that he found two
more shell casings on his property 2 days after the incident
with Senn.
The district court instructed the jury that the State must
prove the following elements beyond a reasonable doubt for
the carrying a concealed weapon charge: “(1) That . . . Senn
. . . ; (2) On or about October 4, 2014; (3) In Richardson
County . . . ; (4) Did carry a weapon concealed on or about
his person to-wit: 9mm semi-automatic handgun.” The jury
was not instructed regarding the meaning of the phrase “on or
about his person.” During the instruction conference, neither
party objected to the instructions relating to the concealed
weapon charge.
During closing arguments, the State asserted that the handgun
was “on or about [Senn’s] person” because it was found
in the driver’s compartment of the U-Haul truck during the
traffic stop. Defense counsel argued that the handgun was not
“on or about [Senn’s] person” because it was unreachable during
the traffic stop.
After the jury found Senn guilty of carrying a concealed
weapon, the district court fined him $200, plus court costs.
Senn appealed. He argued that the evidence adduced at trial
was insufficient to support his conviction because the State
did not prove that the handgun was concealed “on or about”
his person as required by Neb. Rev. Stat. § 28-1202(1)(a)
(Reissue 2016). The State argued that the handgun’s location
in the cab of the vehicle driven by Senn was enough to satisfy
the element that the weapon be concealed “on or about”
Senn’s person, even if it was not within his reach while driving.
Additionally, the State argued that the jury could have
found that Senn carried a concealed weapon not only during
the traffic stop, but also immediately before he allegedly shot
at Buckley.
The Court of Appeals reversed Senn’s conviction for carrying
a concealed weapon. See State v. Senn, 24 Neb. App. 160,
- 319 -
Nebraska Supreme Court Advanc e Sheets
295 Nebraska Reports
STATE v. SENN
Cite as 295 Neb. 315
884 N.W.2d 142 (2016). In a split decision, it found that the
evidence was insufficient to support Senn’s conviction because
the uncontroverted testimony established that the handgun was
not within Senn’s immediate physical reach at the time of the
traffic stop. Citing a civil case, the Court of Appeals declined
to address the State’s argument that Senn could have committed
the offense just before he allegedly shot at Buckley, on
the basis that the State did not argue that theory at trial. See
Nelson v. Cool, 230 Neb. 859, 434 N.W.2d 32 (1989) (as general
rule, appellate court will decide case on theory on which it
was presented in trial court).
We granted the State’s petition for further review.
ASSIGNMENTS OF ERROR
In its petition for further review, the State assigns that the
Court of Appeals erred in (1) refusing to consider an argument
made on appeal, on the basis that it was different from the
theory argued by the State at trial, and (2) finding insufficient
evidence to support the jury’s guilty verdict.
STANDARD OF REVIEW
[1] 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
On further review, the State assigns that the Court of Appeals
erred in finding insufficient evidence to support the jury’s
guilty verdict. Accordingly, our standard of review requires
us to consider whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found that Senn’s handgun was “concealed
on or about his . . . person,” as provided in § 28-1202. See
State v. Irish, supra. Under this standard, we conclude that
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Nebraska Supreme Court Advanc e Sheets
295 Nebraska Reports
STATE v. SENN
Cite as 295 Neb. 315
the State presented sufficient evidence to support the jury’s
guilty verdict.
In reversing Senn’s conviction, the Court of Appeals relied
on the deputy’s testimony that the location of the handgun in
the vehicle was such that Senn could not have reached it while
driving and the sheriff’s testimony that the handgun was “completely
on the other side of the cab” from the driver’s seat.
From this testimony, the Court of Appeals deduced that “both
testified that Senn could not reach the firearm at the time he
was pulled over.” State v. Senn, 24 Neb. App. 160, 170, 884
N.W.2d 142, 149 (2016). However, we note that the sheriff
did not testify regarding Senn’s ability to reach the handgun,
only regarding its location. Based on its interpretation of the
officers’ testimony alone, the Court of Appeals found that “the
uncontroverted testimony in this case establishes that the gun
was not within immediate physical reach of Senn.” Id. at 169,
884 N.W.2d at 148. We disagree.
[2-4] The State charged Senn pursuant to § 28-1202(1)(a),
which provides: “Except as otherwise provided in this section,
any person who carries a weapon or weapons concealed on or
about his . . . person, such as a handgun, a knife, brass or iron
knuckles, or any other deadly weapon, commits the offense of
carrying a concealed weapon.” (Emphasis supplied). In applying
this statute in the context of an automobile, we have 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). Accord State v. Goodwin, 184 Neb. 537,
169 N.W.2d 270 (1969). And in Nebraska, the word “driver”
includes “any person who operates, drives, or is in actual
physical control of a vehicle.” See Neb. Rev. Stat. § 60-642
(Reissue 2010).
The Court of Appeals relied on testimony establishing that
Senn could not reach the handgun while driving, but that testimony
did not speak to whether he could have reached it in
- 321 -
Nebraska Supreme Court Advanc e Sheets
295 Nebraska Reports
STATE v. SENN
Cite as 295 Neb. 315
other driving situations, such as while the vehicle was stopped.
Neither § 28-1202 nor case law requires that the weapon be
within the defendant’s reach while driving in order to be considered
“on or about his person.” In fact, in Kennedy v. State,
171 Neb. 160, 170-71, 105 N.W.2d 710, 718 (1960), where the
defendant was one of several occupants in the vehicle, we held
that a weapon is concealed when it is hidden from ordinary
observation and is “readily accessible on [the] person [of] or
in a motor vehicle operated by [the] defendant.” (Emphasis
supplied). Further, in State v. Goodwin, 184 Neb. at 541, 169
N.W.2d at 273, we affirmed the jury’s factual finding and held
that a loaded pistol found in a locked glove compartment during
a postarrest search was concealed “on or about” the person
of the driver because it was concealed in an accessible location
over which the defendant had control.
[5] Although the Court of Appeals stated the proper standard
of review, it essentially focused its analysis on contemplating
a legal definition of “on or about his person.” However,
similarly to Goodwin, due to the presence of a handgun in the
passenger compartment of Senn’s vehicle, there was sufficient
evidence to pose a factual question for the jury to determine
whether the handgun was concealed on or about his person.
In framing this factual question for the jury, the district court
instructed the jury as to the elements of § 28-1202, elements
that the State was required to prove beyond a reasonable
doubt. And as a general rule, in giving instructions to the jury,
it is proper for the court to describe the elements of the offense
in the language of the statute. See State v. Erpelding, 292 Neb.
351, 874 N.W.2d 265 (2015).
The jury, after being instructed on the elements of
§ 28-1202, ultimately found that Senn carried the handgun
concealed on or about his person, which is all that is required
by the statute. Neither the statute nor the instruction limited
the jury’s consideration to a particular time or location for the
charged offense, except for the date and the county specified
by the instruction. Certainly, as a rational trier of fact, the
- 322 -
Nebraska Supreme Court Advanc e Sheets
295 Nebraska Reports
STATE v. SENN
Cite as 295 Neb. 315
jury considered the evidence that Senn could not reach the
handgun while driving. However, this evidence represented
but one factor for the jury’s deliberation, along with the other
evidence received at trial, in reaching its verdict.
[6] Only where evidence lacks sufficient probative value as
a matter of law may an appellate court set aside a guilty verdict
as unsupported by evidence beyond a reasonable doubt. State
v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). Viewing
the evidence in the light most favorable to the prosecution, we
conclude that the jury, as a rational trier of fact, could have
found that the handgun was on or about Senn’s person, even
though it was not within his reach while driving.
Because we find that the Court of Appeals erred in reversing
Senn’s conviction on the basis of insufficient evidence, we
decline to address the State’s remaining assignment of error.
See State v. Planck, 289 Neb. 510, 856 N.W.2d 112 (2014)
(appellate court is not obligated to engage in analysis that is
not necessary to adjudicate case and controversy before it).
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of State of Nebraska v. Joseph D. Senn , Jr.?
The outcome was: For the reasons set forth above, we reverse the decision of the Court of Appeals and remand the cause with directions to affirm the judgment of the district court.
Which court heard State of Nebraska v. Joseph D. Senn , Jr.?
This case was heard in Nebraska Supreme Court, NE. The presiding judge was Max J. Kelch.
Who were the attorneys in State of Nebraska v. Joseph D. Senn , Jr.?
Plaintiff's attorney: Douglas J. Peterson, Attorney General. Defendant's attorney: Keith M. Kollasch.
When was State of Nebraska v. Joseph D. Senn , Jr. decided?
This case was decided on December 18, 2016.