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.
and Error. An appellate court will decide a case on the
theory on which it was presented in the trial court.
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.
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
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.
from the District Court for Richardson County: Daniel E.
Bryan, Jr., Judge. Reversed and remanded with directions to
M. Kollasch, of Kollasch Law Office, L.L.C., for appellant.
Neb.App. 161] Douglas J. Peterson, Attorney General, and
George R. Love for appellee.
Inbody, Pirtle, and Riedmann, Judges.
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
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.
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.
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.
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.
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 ...