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State v. Nguyen

Supreme Court of Nebraska

May 6, 2016

State of Nebraska, appellee,
v.
Bao Minh Nguyen, appellant.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.

2. Criminal Law: Weapons: Intent. When a weapon has been classified as a deadly weapon per se for purposes of Neb. Rev. Stat. § 28-1202 (Cum. Supp. 2014), the manner or intended use of such deadly weapon is immaterial.

3.___:___:___ . Any knife with a blade over V-A inches in length is a deadly weapon per se, and the manner or intended use of such deadly weapon is not an element of the crime charged.

Petition for further review from the Court of Appeals. Moore, Chief Judge, and Irwin and Inbody, Judges, on appeal thereto from the District Court for Lancaster County, John A. Colborn, Judge. Judgment of Court of Appeals affirmed.

Gerald L. Soucie for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

Wright, J.

NATURE OF CASE

This case comes to us on Bao Minh Nguyen's petition for further review of the Nebraska Court of Appeals' unpublished memorandum opinion, filed on October 14, 2015, which affirmed his conviction of carrying a concealed weapon in violation of Neb. Rev. Stat. § 28-1202 (Cum. Supp. 2014). Nguyen argues that the knife which he had in his possession was not a deadly weapon per se and that the State was required to show that he intended to use the knife as a deadly weapon. For the reasons set forth below, we affirm.

BACKGROUND

On June 30, 2014, Nguyen was stopped by law enforcement for failing to use a turn signal, which ultimately led to a search of his vehicle and the discovery of methamphetamine and a "Stiletto" knife with a blade measuring 3% inches long. Nguyen was arrested and charged with one count of possession of methamphetamine and one count of carrying a concealed weapon, second offense. The parties agreed to bifurcate the proceedings. Nguyen pled guilty to possession of methamphetamine and was sentenced to 1 to 3 years' imprisonment. He does not appeal from that conviction.

A stipulated bench trial was held on the charge of carrying a concealed weapon. The parties submitted a written trial stipulation, a copy of the police report describing the incident, and photographs of the knife alongside a ruler. The stipulation set forth that Nguyen carried the knife concealed in the visor of his vehicle and that the photographs submitted were true and accurate photographs of the knife and the ruler measuring the knife.

The issue before the district court was whether the knife constituted a deadly weapon under § 28-1202. Based upon our decisions in State v. Williams[1] and State v. Valencia, [2] Nguyen argued that the State was required to prove that the manner in which the knife was used or ...


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