State v. Nguyen , 293 Neb. 493 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/06/2016 09:09 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. NGUYEN
Cite as 293 Neb. 493
State of Nebraska, appellee, v.
Bao Minh Nguyen, appellant.
___ N.W.2d ___
Filed May 6, 2016. No. S-15-142.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion 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 31⁄2 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 K elch, 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further review of the Nebraska Court of Appeals’ unpublished
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STATE v. NGUYEN
Cite as 293 Neb. 493
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 enforce-
ment 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 33⁄4 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 methamphet-
amine 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 carry-
ing 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. Williams1 and State v. Valencia,2 Nguyen
argued that the State was required to prove that the manner in
which the knife was used or intended to be used was capable
of producing death or serious bodily injury.
1
State v. Williams, 218 Neb. 57, 352 N.W.2d 576 (1984).
2
State v. Valencia, 205 Neb. 719, 290 N.W.2d 181 (1980).
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STATE v. NGUYEN
Cite as 293 Neb. 493
The district court noted that § 28-1202 had been amended
since the publication of Williams and Valencia. The 2009
amendment deleted references to specific types of knives and
instead added the general term “knife” as a deadly weapon
per se. The court concluded that the Legislature amended the
statute to prohibit a person from carrying any knife concealed
on or about his or her person, if it came within the defini-
tion of knife set forth in Neb. Rev. Stat. § 28-1201(5) (Cum.
Supp. 2014). Section 28-1201(5) defines knife as “any dagger,
dirk, knife, or stiletto with a blade over three and one-half
inches in length or any other dangerous instrument capable
of inflicting cutting, stabbing, or tearing wounds.” The court
concluded that the knife found in Nguyen’s vehicle was a
knife as defined in § 28-1201 and was a deadly weapon per
se under § 28-1202. The district court found Nguyen guilty
of carrying a concealed weapon and sentenced him to 1 to 3
years’ imprisonment.
In his appeal to the Court of Appeals, Nguyen assigned
that the district court erred by rejecting the precedent set forth
in Williams and Valencia that regardless of the length of the
knife’s blade, the State must present evidence that the accused
intended to use the knife as a deadly weapon. He argued that
the phrase “such as a handgun, a knife, brass or iron knuckles,
or any other deadly weapon” in § 28-1202 indicated the legis-
lative intent to give examples of deadly weapons but that those
examples were not intended to make such instruments deadly
weapons per se. Nguyen asserted that an exclusion of shotguns
from the list would indicate that shotguns were not deadly
weapons per se and that therefore, a showing of the intended
use of the shotgun was required for conviction.
The Court of Appeals rejected Nguyen’s argument and
adopted the district court’s reasoning that proof of intent to
use the knife as a deadly weapon was not required, because the
2009 statutory amendment made any knife with a blade longer
than 31⁄2 inches a per se deadly weapon. The Court of Appeals
therefore affirmed Nguyen’s conviction.
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. NGUYEN
Cite as 293 Neb. 493
ASSIGNMENTS OF ERROR
Nguyen alleges, summarized and restated, that the Court of
Appeals erred in affirming his conviction of unlawfully carry-
ing a concealed weapon, second offense. He asserts that pursu-
ant to Valencia and Williams, regardless of the length of the
knife’s blade, the State must prove that the accused intended to
use the concealed knife as a deadly weapon.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below.3
ANALYSIS
Nguyen asserts that the Court of Appeals erred in not requir-
ing the State to prove that Nguyen intended to use the knife as
a deadly weapon and in concluding that the knife in question
was per se a deadly weapon.
The question is whether, following the legislative amend-
ment to § 28-1202 in 2009, the State must still prove the
accused intended to use a knife as a deadly weapon if the knife
concealed by the accused has a blade longer than 31⁄2 inches.
The answer lies in the determination whether such amendment
was intended by the Legislature to change this requirement of
proof which this court espoused in Williams4 and Valencia.5 We
examine each case.
State v. Valencia
The defendant in State v. Valencia, Modesto C. Valencia,
was arrested at his place of employment on a charge not rel-
evant to this appeal. As part of the arrest procedure, one of the
arresting officers frisked Valencia and found a spring-operating
3
State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).
4
State v. Williams, supra note 1.
5
State v. Valencia, supra note 2.
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STATE v. NGUYEN
Cite as 293 Neb. 493
switchblade knife in his pants’ pocket. He was charged with
carrying a weapon concealed on or about his person in viola-
tion of § 28-1202 (Supp. 1978), which, at that time, stated in
part as follows:
(1) Except as provided in subsection (2) of this section,
any person who carries a weapon or weapons concealed
on or about his person such as a revolver, pistol, bowie
knife, dirk or knife with a dirk blade attachment, brass or
iron knuckles, or any other deadly weapon, commits the
offense of carrying concealed weapons.
(2) It shall be an affirmative defense that the defendant
was engaged in any lawful business, calling or employ-
ment at the time he was carrying any weapon or weapons,
and the circumstances in which such person was placed
at the time were such as to justify a prudent person in
carrying the weapon or weapons, for the defense of his
person, property or family.
Valencia subsequently moved to dismiss the information
based upon his allegation that § 28-1202 was unconstitutional
and void, because it was vague and indefinite on its face
and as applied and violated article I, § 3, of the Nebraska
Constitution, and the Fifth and Sixth Amendments to the U.S.
Constitution.
The district court in Valencia found that § 28-1202(1) was
unconstitutional as applied for the reason that the weapon
as disclosed by the evidence at the preliminary hearing did
not fall within the specific types of weapons prohibited,
but, rather, fell within the category of “‘other deadly weap-
ons’” and that such category was unconstitutionally vague
and overbroad.6
The State appealed from that order to this court. We con-
cluded that the statute in question was constitutional. We
reversed the order of the district court which had quashed that
part of the information and remanded the cause for further
6
Id. at 722, 290 N.W.2d at 183.
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293 Nebraska R eports
STATE v. NGUYEN
Cite as 293 Neb. 493
proceedings. In discussing Valencia’s contention that the words
“‘other deadly weapon’” as used in § 28-1202(1) were so
vague and overbroad as to render the statute unconstitutional,
we noted that the term “‘deadly weapon’” had been statutorily
defined in another section of the new criminal code, Neb. Rev.
Stat. § 28-109 (Supp. 1978), and provided in part:
“As used in this code, unless the context otherwise
requires: . . . (7) Deadly weapon shall mean any firearm,
knife, bludgeon, or other device, instrument, material, or
substance, whether animate or inanimate, which in the
manner it is used or intended to be used is capable of pro-
ducing death or serious bodily injury . . . .”7
By applying this definition to § 28-1202(1), we determined
that it was clear the Legislature, in enacting that statute, had
designated certain weapons as deadly weapons per se and that
the manner of actual or intended use of such designated weap-
ons was immaterial under the statute in question. We found
that the reference to the catchall phrase “‘or any other deadly
weapon’” contained in § 28-1202(1) was the element of actual
or intended use which rendered the words “‘other deadly weap-
ons’” sufficiently definite to provide citizens an opportunity to
conform their conduct to the statute and distinguish between
situations involving culpable concealment and those involving
innocent concealment.8 And it was this element of intended use
which saved the term “‘deadly weapon’” from being vague
or overbroad.9
We went on to say in Valencia that because the weapon,
a switchblade knife, was not of the type enumerated in
§ 28-1202(1), we had serious doubts as to whether the switch-
blade knife was a deadly weapon per se. We noted that the
decision was one for the Legislature to determine if it chose
to amend the statute in question. We stated that whether an
7
Id. at 724, 290 N.W.2d at 184.
8
Id.
9
Id. at 725, 290 N.W.2d at 184.
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STATE v. NGUYEN
Cite as 293 Neb. 493
object or weapon not specifically mentioned in the statute was
in fact a “‘deadly weapon’” was clearly a question of fact to be
decided by the trier of fact in prosecutions under this statute.10
We further stated the resolution of this question would depend
upon the evidence adduced as to the use or intended use of the
object in question.
State v. Williams
The defendant in State v. Williams, Timothy R. Williams,
was arrested in Omaha, Nebraska, while driving a 1983 Lincoln
Continental reported to have been stolen from a Lincoln,
Nebraska, new car dealer. The police searched the car for
contraband and discovered a pellet gun which looked like a
.357-magnum firearm in the glove compartment and an 81⁄2
inch long “‘serrated steak knife’” with a blade 43⁄4 inches long,
beneath the driver’s seat.11 It was described as a “table steak
knife as used in dining.”12 Williams was charged with receiving
stolen property and carrying a concealed weapon.
At trial, Williams testified that he had no knowledge of the
knife underneath the seat and that he had never seen it before.
Following his conviction for carrying a concealed weapon,
Williams appealed, arguing that the jury should have been spe-
cifically instructed that the concealment of a weapon may be
innocent as opposed to culpable.
The State asserted that the jury was so instructed and that
in any event, the knife in question was a deadly weapon
as specifically enumerated by § 28-1202(1) (Reissue 1979).
It argued that the use or intended use of such weapon was
immaterial and that there could not be any innocent con-
cealment. During its argument, the State requested the court
to expand the list of weapons specifically enumerated in
§ 28-1202(1) to include all knives with a blade in excess of
10
Id.
11
State v. Williams, supra note 1, 218 Neb. at 58, 352 N.W.2d at 578.
12
Id.
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STATE v. NGUYEN
Cite as 293 Neb. 493
31⁄2 inches in length. It asked the court to expand the specific
list of per se deadly weapons to include the table knife at
issue by considering the definition of a “‘deadly weapon’”
in § 28-109(7) (Reissue 1979) which included the word
“‘knife’” and the definition of a knife as having a blade over
31⁄2 inches in length.13
We rejected the State’s argument and refused to expand our
holding in Valencia or to construe § 28-1202(1) in the manner
requested by the State. We reasoned that the context of chap-
ter 28, article 12, of the Nebraska Revised Statutes required
that the concept of per se deadly weapons be limited to the
specific weapons enumerated in § 28-1202(1). We concluded
that to hold otherwise would mean that every citizen carrying
a kitchen paring knife with a 4-inch blade in a picnic basket
with other appropriate picnic items would be concealing a per
se deadly weapon and would be guilty of a Class IV felony,
without being able to explain his or her innocent intent. And
we reasoned that such a result was not contemplated by the
Legislature in enacting § 28-1202(1).
We then proceeded to determine if the steak knife was a
weapon specifically enumerated in the statute. With regard to
this knife, we noted that the specifically named weapons were
bowie knife, dirk, or knife with a dirk blade attachment.
We found in Williams that as a matter of law, the steak
knife was not a deadly weapon per se. We concluded that for
the jury to make a proper finding of fact, it was necessary that
the jury be properly instructed. We concluded the jury had not
been instructed that neither the knife nor the pellet gun were
per se deadly weapons. The jury should have been instructed
that before Williams could be convicted of the crime charged,
the jury would have to determine that the weapon was a
deadly weapon and that the defendant carried the weapon with
the intent to use it to produce death or serious bodily injury.
Because the instructions given to the jury were incomplete
13
Id. at 60, 352 N.W.2d at 579.
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Cite as 293 Neb. 493
and misleading, we reversed the judgment and remanded the
cause for a new trial.
R esolution
Having examined our opinions in Williams14 and Valencia,15
we can proceed with our examination of § 28-1202(1) as
amended in 2009.16 The amended version of the statute pro-
vides in relevant part: “Except as otherwise provided in this
section, any person who carries a weapon or weapons con-
cealed 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.” The
term “knife” is defined in § 28-1201(5) as “any dagger, dirk,
knife, or stiletto with a blade over three and one-half inches in
length or any other dangerous instrument capable of inflicting
cutting, stabbing, or tearing wounds.”
The Court of Appeals reasoned, and we agree, that from the
clear statutory language of § 28-1201(5), the definition of a
knife is to be applied to § 28-1202 and, consequently, the knife
found and being carried and concealed by Nguyen, a stiletto
with a blade over 31⁄2 inches in length, was a deadly weapon
per se for purposes of § 28-1202. Therefore, the State was not
required to provide additional evidence of intent that Nguyen
used or intended to use the knife to produce death or serious
bodily injury.
[2] In State v. Bottolfson,17 we addressed the defendant’s
conviction for use of a weapon to commit a felony. At that
time, § 28-1201(4) (Reissue 1995) defined knife as “‘any
dagger, dirk, knife, or stiletto with a blade over three and one-
half inches in length.’”18 We noted that it was obvious that
14
State v. Williams, supra note 1.
15
State v. Valencia, supra note 2.
16
§ 28-1202(1) (Cum. Supp. 2014).
17
State v. Bottolfson, 259 Neb. 470, 610 N.W.2d 378 (2000).
18
Id. at 476, 610 N.W.2d at 384.
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Cite as 293 Neb. 493
the Legislature, by enacting § 28-1201(4), did not intend that
any knife be a per se deadly weapon under Neb. Rev. Stat.
§ 28-1205 (Reissue 1995). We determined that the Legislature
intended the words “‘with a blade over three and one-half
inches’” to apply to daggers, dirks, knives, and stilettos such
that any of these items having blades over 31⁄2 inches were
knives under § 28-1201(4) and that thus, any knife with a blade
over 31⁄2 inches was a deadly weapon per se.19 When a weapon
has been classified as a deadly weapon per se for purposes of
§ 28-1202, the manner or intended use of such deadly weapon
is immaterial.20
[3] We therefore conclude that given the amendment to
§ 28-1202 and the amendment to the term “knife” as defined in
§ 28-1201(5), any knife with a blade over 31⁄2 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.
To the extent that our opinions in State v. Williams21 and State
v. Valencia,22 can be construed to require proof of the intended
use of any knife with a blade over 31⁄2 inches, that interpreta-
tion has been superseded by the 2009 statutory amendment.
CONCLUSION
We decline to comment on the rationale for the legislative
amendment that defines all knives with blades longer than 31⁄2
inches as a deadly weapon per se for purposes of the offense
of carrying a concealed weapon under § 28-1202. That is the
province of the Legislature.
For the reasons set forth above, we affirm the judgment of
the Court of Appeals which affirmed the district court’s convic-
tion and sentence of Nguyen for carrying a concealed weapon.
A ffirmed.
19
Id. at 476-77, 610 N.W.2d at 384.
20
See State v. Kanger, 215 Neb. 128, 337 N.W.2d 422 (1983).
21
State v. Williams, supra note 1.
22
State v. Valencia, supra note 2.