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State v. McGuire

Supreme Court of Nebraska

December 14, 2018

State of Nebraska, appellee,
Charles M. McGuire, Appellant.

         1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.

         2. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

         3. Search and Seizure: Appeal and Error. The denial of a motion for return of seized property is reviewed for an abuse of discretion.

         4. Sentences. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.

         5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

         6. ___: ___. When a trial court lacks jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.

         7. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         8. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

         9. ___: ___: ___. In order for a court to inquire into a statute's legislative history, that statute in question must be open to construction, and a [301 Neb. 896] statute is open to construction when its terms require interpretation or may reasonably be considered ambiguous.

         10. Courts: Jurisdiction: Search and Seizure: Property. The court in which a criminal charge was filed has exclusive jurisdiction to determine the rights to seized property, and the property's disposition.

         11. Search and Seizure: Property: Proof. Seizure of property from someone is prima facie evidence of that person's right to possession of the property, and unless another party presents evidence of superior title, the person from whom the property was taken need not present additional evidence of ownership.

          Appeal from the District Court for Washington County: John E. Samson, Judge.

          Michael J. Tasset, of Johnson & Mock, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          CASSEL, J.


         Pursuant to a search warrant, law enforcement officers seized personal property from a residence occupied by several persons, including Charles M. McGuire. He eventually pled no contest to attempted possession of a controlled substance and later moved for return of some seized property. The district court partially denied his motion, and he appeals. The State disputes the district court's jurisdiction, upon which our jurisdiction depends. We conclude Neb. Rev. Stat. § 29-818 (Reissue 2016) granted exclusive jurisdiction to the district court to determine the property's disposition. Because the court's partial denial of McGuire's motion was apparently premised on an understandable, yet incorrect, reading of our case [301 Neb. 897] law, we reverse that part of the court's order and remand the cause for further proceedings consistent with this opinion.


         Prosecution and Motion for Return

         In August 2015, law enforcement officers, including a criminal investigator with the Washington County sheriff's office, executed a warrant search of McGuire's home. They seized several items of personal property, including firearms and ammunition. The State charged McGuire with numerous offenses in the district court for Washington County, but the charges were ultimately reduced to a single count of attempted possession of a controlled substance, a Class I misdemeanor. The third amended information, to which McGuire pled no contest, did not include any allegation of an intent to manufacture, distribute, deliver, or dispense the substance-in effect, it alleged only attempted simple possession.

         After sentencing, McGuire filed a motion in the district court for return of seized property. Claiming that Neb. Rev. Stat. § 29-820 (Reissue 2016) divested the district court of jurisdiction over disposition of the disputed items, the State moved to dismiss the motion. The district court conducted a hearing on both motions.

         Hearing on Motion for Return

         Regarding the State's motion to dismiss, it argued that § 29-820 divested the court of jurisdiction to determine the disposition of firearms and ammunition used in the commission of crime. The State contended the firearms and ammunition should be destroyed by law enforcement because one of the weapons was allegedly used in a crime.

         Regarding McGuire's motion for return of personal property, McGuire first testified that the allegations of his motion (which stated that he was the lawful and rightful owner of the property and that the property had not been used in the commission of a crime, was not contraband, and was no longer [301 Neb. 898] required as evidence) were true. McGuire's counsel then stated that he had "nothing else." The State did not cross-examine McGuire.

         In response to McGuire's testimony, the State adduced testimonial and documentary evidence. Notably, the State did not present any evidence regarding the other occupants of the residence. Other than one name appearing on the inventory from the search, the record is entirely silent regarding the identities of those persons and their interests, if any, in the seized property. Rather, the State's evidence seemed to be offered in support of three arguments regarding disposition of the property.

         First, the criminal investigator testified that in his opinion, the firearms seized were used in the commission of drug manufacturing and selling. He specified, "we believed that they were manufacturing enhanced marijuana." The investigator explained that in his training and experience, drug dealers use firearms to protect "their assets for illegal activities." But when asked whether he had any reason to believe McGuire was manufacturing any sort of controlled substance, he responded, "No more than that I don't know that he wasn't." He also replied "[c]orrect" when asked, "You think [McGuire] might have been [manufacturing a controlled substance], but you don't know?"

         Second, the State contended that McGuire was not the owner of three of the firearms, because his name was not the listed owner on the Bureau of Alcohol, Tobacco, Firearms and Explosives "eTrace" background checks. The investigator acknowledged that there was nothing about the guns making them illegal per se. He also admitted that subsequent private-party sales from the bureau's registered owner would not show up on an eTrace search. But there was no evidence connecting any of the three persons named in the eTrace evidence to the residence from which the items were seized and no indication that the State had made any effort to notify those persons of the property it was holding.

         [301 Neb. 899] Third, during the State's case, McGuire adduced evidence regarding the locations within the house and garage where the items of property were located when they were seized. Exhibit 15 was an inventory made at the time of execution of the search warrant. It cataloged every item seized and where in the house it was found. Eight items were seized from the east bedroom occupied by McGuire. Four items were taken from the northwest bedroom. Four other items were taken from, respectively, the dining room, the kitchen, the basement stairway, and the attached garage. The investigator testified that McGuire lived with four or five roommates and that property was seized in common areas used by all roommates. But nothing else was presented regarding any of these roommates.

         District Court's Order

         After taking both motions under advisement, the court disposed of them in a single order. Without elaboration, the court denied the State's motion to dismiss. The court partially granted McGuire's motion for return of personal property. The court acknowledged a presumption that McGuire had an ownership interest in the property, but found McGuire did not have exclusive possession of the property seized outside his bedroom. Of the 16 items seized, the court ordered the return of the 8 items seized from the east bedroom. In effect, the order denied return of the other items, which were seized from the other locations.

         McGuire filed a timely appeal, which we moved to our docket.[1]


         McGuire assigns that the district court erred by overruling in part McGuire's motion for return of personal property. On appeal, the State raises the same jurisdictional argument asserted below.

         [301 Neb. 900] STANDARD OF REVIEW

         A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.[2] Statutory interpretation presents a question of law.[3] An appellate court ...

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