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State v. Senn

Court of Appeals of Nebraska

July 5, 2016

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

         1. Criminal Law:

         Weapons. Neb. Rev. Stat. § 28-1202 (Cum. Supp. 2014) provides that generally, 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. Pleadings:

         Appeal and Error. An appellate court will decide a case on the theory on which it was presented in the trial court.

         3. Criminal Law:

         Weapons. The purpose of Neb. Rev. Stat. § 28-1202 (Cum. Supp. 2014), 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.

         4. Weapons:

         Words and Phrases. 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.

         5. Weapons: Evidence.

         Neb. Rev. Stat. § 28-1212 (Reissue 2008) provides that 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.

         Appeal from the District Court for Richardson County: Daniel E. Bryan, Jr., Judge. Reversed and remanded with directions to dismiss.

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

         [24 Neb.App. 161] Douglas J. Peterson, Attorney General, and George R. Love for appellee.

          Inbody, Pirtle, 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 [24 Neb.App. 162] 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 ...


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