State v. Tharp ( 2014 )

Decisions of the Nebraska Court of Appeals
454 22 NEBRASKA APPELLATE REPORTS
At this time, the record is insufficient to further address
the merits of Brooks’ assertions about the effectiveness of
his counsel.
V. CONCLUSION
We find no merit to Brooks’ assertions on appeal. We affirm.
Affirmed.
State of Nebraska, appellee, v.
John P. Tharp, appellant.
___ N.W.2d ___
Filed October 14, 2014. No. A-13-959.
1. Criminal Law: Trial: Pretrial Procedure: Motions to Suppress: Appeal and
Error. In a criminal trial, after a pretrial hearing and order denying a motion to
suppress, the defendant must object at trial to the admission of evidence sought
to be suppressed to preserve an appellate question concerning the admissibility of
that evidence.
2. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error. A failure to
object to evidence at trial, even though the evidence was the subject of a previ-
ous motion to suppress, waives the objection, and that party will not be heard to
complain of the alleged error on appeal.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.
4. ____: ____. An appellate court gives statutory language its plain and ordi-
nary meaning.
5. Statutes: Legislature: Intent. In construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordinary, and popu-
lar sense.
6. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: In reviewing a
criminal conviction, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favorably to
the State, is sufficient to support the conviction.
Appeal from the District Court for Scotts Bluff County:
Randall L. Lippstreu, Judge. Affirmed.
Decisions of the Nebraska Court of Appeals
STATE v. THARP 455
Cite as 22 Neb. App. 454Stacy C. Nossaman-Petitt, of Nossaman Petitt Law Firm,
P.C., for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Inbody, Chief Judge, and Irwin and Bishop, Judges.
Inbody, Chief Judge.
INTRODUCTION
John P. Tharp appeals his convictions and sentences, after
a jury trial, in Scotts Bluff County District Court for terror-
istic threats, third degree domestic assault, and two counts of
being a felon in possession of a firearm. For the following
reasons, we affirm Tharp’s convictions and sentences on all
four counts.
STATEMENT OF FACTS
In April 2013, Tharp was charged with count I, terroristic
threats, in violation of Neb. Rev. Stat. § 28-311.01 (Reissue
2008), a Class IV felony; count II, third degree domestic
assault, in violation of Neb. Rev. Stat. § 28-323(1) (Cum.
Supp. 2012), a Class I misdemeanor; and counts III and IV,
being a felon or fugitive in possession of a firearm, in viola-
tion of Neb. Rev. Stat. § 28-1206(1)(a) (Cum. Supp. 2012),
Class ID felonies.
Motion to Suppress Proceedings.
On July 12, 2013, Tharp filed a motion to suppress any and
all evidence of items seized from his home, including two
black powder guns. At the hearing, it was revealed that on
April 19, late in the evening, a “hysterical” female, identified
as Linda Clary, reported to Scottsbluff police officer William
Howton that her boyfriend, Tharp, had assaulted her and put a
gun to her head at the residence where she and Tharp resided in
Scottsbluff, Scotts Bluff County, Nebraska. Clary reported that
the two had been engaged in an argument which led to physi-
cal violence and Tharp’s chasing after her with a black powder
handgun with a brown handle.
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456 22 NEBRASKA APPELLATE REPORTS
Scottsbluff police officer Matt Dodge was directed to the
residence, where he made contact with Tharp, who reported
that he had been previously convicted of a felony and had two
firearms, specifically “muzzle loaders,” in the house. Tharp
reported to Dodge that it was legal for him to possess the fire-
arms. Tharp was arrested and transported by police to a deten-
tion center.
Police were aware of the volatile relationship between Tharp
and Clary as a result of previous police contacts involv-
ing domestic arguments between the two, and also involving
Clary’s ex-husband. Dodge testified that he was aware that
Tharp’s parents also resided in the home and that he was their
primary caregiver. Police officers indicated that Clary reported
to police that she and Tharp resided in the enclosed porch area
of the residence, which information was consistent with the
police officers’ previous information and knowledge.
After Tharp was taken into custody, Howton and Clary
returned to the residence, where Howton requested that Clary
retrieve the two guns. Clary agreed and found one black pow-
der handgun, which she indicated was not the gun Tharp had
used to threaten her. Clary gave consent to police to search
the residence for the second gun. Police searched what they
described as an enclosed front porch area consisting of a liv-
ing room and bedroom, and no other places in the residence
were searched. During the course of the search of the enclosed
porch area of the residence, police located a second, fully
loaded .44-caliber Fillipietta handgun between two dressers in
the bedroom.
The district court found that Dodge’s initial encounter with
Tharp was not a seizure and, as a first-tier police-citizen
encounter, did not invoke Fourth Amendment protection. The
court found that based upon the disturbance involving a gun,
it was reasonable for Dodge to contact Tharp, and Tharp vol-
unteered that he was a convicted felon who possessed two
muzzle-loading handguns inside the residence. The court deter-
mined that Tharp’s claim it was lawful for a prior convicted
felon to possess a muzzle-loading firearm in Nebraska was
misplaced and that Dodge had probable cause to arrest Tharp
without a warrant.
Decisions of the Nebraska Court of Appeals
STATE v. THARP 457
Cite as 22 Neb. App. 454The district court further determined that Clary had actual
or apparent authority to consent to the search of the enclosed
porch area of the residence, as Clary had advised police that
she lived with Tharp in the enclosed porch area, which infor-
mation was corroborated by the officers’ prior knowledge and
was not disputed by any evidence to the contrary. The court
concluded that Clary had common authority with Tharp to
consent to the search of the enclosed front porch area. For all
of those reasons, the court ordered that Tharp’s motion to sup-
press be overruled.
Jury Trial Proceedings.
Prior to trial, both parties stipulated that Tharp was a con-
victed felon, his status arising out of a 1985 felony conviction
in Iowa.
Clary testified that she had been in a relationship with
Tharp for 11⁄2 years and explained that although the relation-
ship began well, it became violent and aggressive. Clary testi-
fied that she had lived with Tharp for 6 months at his home,
the residence at issue in the present case. Clary testified that
Tharp’s parents also resided in the home, but that his parents
utilized the majority of the house, while she and Tharp stayed
only in the enclosed front porch area, which is divided into
two rooms, one-half as a living room and the other half as
a bedroom. Clary explained that Tharp kept knives and two
black powder guns at the residence, in the bedroom. Clary
testified that Tharp purchased the guns at a store in Sidney,
Nebraska, and also that he previously informed her that he was
an ex-felon.
Clary testified that on April 19, 2013, Tharp had been
drinking and became verbally aggressive, which aggression
eventually turned into physical violence wherein Tharp pushed
her onto a bed, straddled her, and wrapped both his hands
around her neck. Clary was able to escape Tharp’s grip and
attempted to leave the residence in her vehicle when Tharp
grabbed a black powder handgun from inside the residence
and put the gun to Clary’s head, threatening to kill her. Clary
attempted to pull out of the driveway and hit a lightpost, dam-
aging the door to the vehicle. Clary then drove away from the
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residence and to a convenience store down the street, where
police were contacted.
Clary testified that at times, she had maintained an apart-
ment of her own, but that that was not the case in April 2013.
Clary testified that on the night of the incident, she had no per-
sonal belongings at Tharp’s residence because she had planned
to move into her own residence in May. Tharp’s sister and
brother-in-law refuted Clary’s assertion that she resided with
Tharp by testifying that Clary visited Tharp at his residence,
but did not live there because she had an apartment of her own.
Tharp’s mother, who resides in the main area of the residence,
testified that she did not hear any arguments occur on the
night of April 19, 2013, and that Clary did not live with Tharp
because she had her own residence.
At trial, both police officers, Howton and Dodge, gave tes-
timony similar to the testimony they each gave at the hearing
on the motion to suppress. Additionally, Howton testified that
he observed redness and bruising along both sides of Clary’s
neck and bruising on her right arm. Howton also gave more
detailed testimony regarding the two guns taken from Tharp’s
residence. Howton testified that Clary retrieved the first gun
and turned it over to police and that she then gave permission
for police to help her find the second gun. Howton testified
that both guns were black powder handguns and that in the
chamber of the other gun, found between the two dressers,
there was a round of ammunition, which indicated that the
gun was loaded. Howton testified that he had to remove the
percussion caps from the gun and explained that percussion
caps are not the same as bullets, but that the gun shoots a
bullet. Howton testified that he was not specifically aware
of the difference between a “black powder gun and a regu-
lar firearm.”
Dodge explained that the black powder in guns such as
those involved in this case is located in the gun’s cylinder and
that to make a projectile go down the barrel, a percussion cap
is placed on the outside of the cylinder to set the black powder
on fire. Dodge further testified that the hammer of the gun
strikes the percussion cap, causing an explosion that “blows
Decisions of the Nebraska Court of Appeals
STATE v. THARP 459
Cite as 22 Neb. App. 454all the black powder at once” and “throws the bullet down
the barrel.”
The owner of a sporting goods company in Scottsbluff
testified that there are no federal regulations on the sale of
black powder guns. He testified that Tharp’s guns were black
powder handguns which were classified as replicas of fire-
arms produced and manufactured before 1898. He explained
that this differentiation was significant because guns produced
before 1898 are considered antique and do not require firearm
dealers to record their sale. He testified that the black pow-
der acts as the propellant to push a lead ball out of such a
gun’s barrel.
Tharp testified in his own behalf, stating that he resides in
the residence at issue herein with his parents. Tharp admitted
that he had previously been convicted of a felony in 1985, in
Iowa. Tharp was in an intimate relationship with Clary, but
testified that he did not consider it to be a “boyfriend/girlfriend
relationship.” Tharp testified that Clary had never lived at the
residence with him and did not keep any personal belong-
ings there.
Tharp explained that on the evening of April 19, 2013, Clary
was at the residence watching television with him and an argu-
ment ensued. Tharp denied that there was any yelling during
the argument or that he assaulted Clary, but stated that she
backed her vehicle into the pole and “clipped [his] legs in the
[vehicle’s] door” such that he could not move until she pulled
forward. Tharp further denied that he pulled a gun on her at
any time during the evening. Tharp testified that the redness on
Clary’s upper body was caused by chemicals that she came into
contact with at her job.
Tharp admitted that he owned two “muzzle loader” guns but
testified that even as a felon, he could legally purchase and
possess black powder guns because a background check was
not required. Tharp testified that under federal law, he could
possess the guns, but that “[i]t’s [just] this place that’s got their
[sic] own statutes.”
The matter was submitted to the jury, which found Tharp
guilty of all four crimes charged in the information. The
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460 22 NEBRASKA APPELLATE REPORTS
district court sentenced Tharp to 12 to 24 months’ imprison-
ment on count I, 6 months’ imprisonment on count II, and 3
to 5 years’ imprisonment each on counts III and IV, with all
sentences ordered to run consecutively and 188 days’ credit for
time served.
ASSIGNMENTS OF ERROR
Tharp assigns that the district court erred by overruling his
motion to suppress and in excluding certain evidence regarding
the purchase of firearms by a prohibited person, specifically
the difference between a “firearm” and an “antique firearm.”
ANALYSIS
Motion to Suppress.
Tharp argues that the warrantless search conducted by law
enforcement violated his constitutional right against unreason-
able searches and seizures.
[1,2] Upon our review of the record, it does not appear that
Tharp properly preserved this issue for review, because he did
not timely renew his motion to suppress at trial. In a criminal
trial, after a pretrial hearing and order denying a motion to
suppress, the defendant must object at trial to the admission
of evidence sought to be suppressed to preserve an appellate
question concerning the admissibility of that evidence. State v.
Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002). A failure to
object to evidence at trial, even though the evidence was the
subject of a previous motion to suppress, waives the objection,
and that party will not be heard to complain of the alleged error
on appeal. Id.Prior to trial, Tharp made a motion to sequester witnesses
and a motion to endorse two witnesses, but no further motions
or objections were made. During trial, Tharp did not object to
the testimony of either Howton or Dodge or to the photographic
evidence submitted during their testimony. At the conclusion of
the State’s case, Tharp made a motion for summary dismissal
on the two counts of felon in possession of a firearm, which
motion was overruled. By failing to object to the testimony of
either Howton or Dodge, Tharp waived his right to appeal the
admission of this evidence.
Decisions of the Nebraska Court of Appeals
STATE v. THARP 461
Cite as 22 Neb. App. 454At oral argument, Tharp argued that the case of State v.
Van Ackeren, 200 Neb. 812, 265 N.W.2d 675 (1978), provides
that the renewal of an objection to the denial of the motion
to suppress is not essential to preserve this question for our
review on appeal. However, in the case of State v. Pointer,
224 Neb. 892, 895, 402 N.W.2d 268, 271 (1987), the Nebraska
Supreme Court addressed the holding of Van Ackeren and held
that “in a criminal trial, after a pretrial hearing and order which
overrules a defendant’s motion to suppress his statement, the
defendant must object at trial to the receipt of the statement
in order to preserve the question for review on appeal.” See,
also, State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006);
State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005); State
v. Timmens, supra; State v. Cody, 248 Neb. 683, 539 N.W.2d
18 (1995); State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537(1991). Accordingly, this issue has not been properly preserved
for our review on appeal.
Felon in Possession of Firearm.
Tharp specifically assigns that the district court erred by
excluding evidence that he wanted to present regarding his
firearms. However, in the argument section of his brief, he
argues only a mixture of inappropriate statutory interpretation
and insufficiency of the evidence.
[3-5] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court. State
v. Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013). An appel-
late court gives statutory language its plain and ordinary mean-
ing. State v. Schanaman, 286 Neb. 125, 835 N.W.2d 66 (2013).
And in construing a statute, a court must determine and give
effect to the purpose and intent of the Legislature as ascer-
tained from the entire language of the statute considered in
its plain, ordinary, and popular sense. State v. Smith, 282 Neb.
720, 806 N.W.2d 383 (2011).
Tharp argues that he should not have been charged with or
convicted of two counts of felon in possession of a firearm,
because he is exempt from the definition of a felon in posses-
sion of a firearm under Nebraska statutes because he legally
purchased his firearms, which are considered antique. Tharp
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462 22 NEBRASKA APPELLATE REPORTS
contends that under Neb. Rev. Stat. § 69-2403(2)(b) (Cum.
Supp. 2012), the certificate required for the purchase of a gun
is not required if the handgun is an “antique handgun,” and
that his two handguns are antique. Section 69-2403 governs
the sale, lease, rental, and transfer of a handgun. Tharp was
charged with two counts of a possession crime in accordance
with § 28-1206; there were no allegations or charges of viola-
tions of Neb. Rev. Stat. § 69-2402 (Cum. Supp. 2012), and the
jury was not charged with making any determinations regard-
ing the purchase of the firearms.
Neb. Rev. Stat. § 69-2404 (Reissue 2009) provides that
any person “desiring to purchase, lease, rent, or receive
transfer” of a handgun must apply with law enforcement
for a certificate. At oral argument, Tharp argued that under
§ 69-2403(2)(b), a person does not need a certificate to
purchase an antique firearm; that that allows anyone, includ-
ing felons, to purchase an antique firearm; and that as such,
the Nebraska statutes allow for felons to purchase firearms.
Section 69-2403 allows certain handguns to be purchased
without a certificate pursuant to § 69-2404. Those exceptions
include a federally licensed firearms dealer acquiring a hand-
gun, the purchase of an antique handgun, a person acquiring
a handgun on behalf of a law enforcement agency, and certain
transfers of handguns. In relevant part, § 69-2402(1) defines
an antique handgun as
any handgun or pistol, including those with a matchlock,
flintlock, percussion cap, or similar type of ignition sys-
tem, manufactured in or before 1898 and any replica of
such a handgun or pistol if such replica (a) is not designed
or redesigned for using rimfire or conventional centerfire
fixed ammunition or (b) uses rimfire or conventional cen-
terfire fixed ammunition which is no longer manufactured
in the United States and which is not readily available in
the ordinary channels of commercial trade.
The problem with Tharp’s arguments is that neither
§ 69-2403 nor any other Nebraska statute includes any
language which specifically indicates that the Legislature
intended any circumstances under which felons are allowed
to purchase firearms or handguns. Instead, the Nebraska
Decisions of the Nebraska Court of Appeals
STATE v. THARP 463
Cite as 22 Neb. App. 454statutes clearly and specifically prohibit felons from posses-
sion of any type of firearm. Section 28-1206(2)(b) provides
that it is a Class ID felony for a person who has previously
been convicted of a felony to possess a deadly weapon which
is a firearm as a first offense. Neb. Rev. Stat. § 28-1201(1)
(Cum. Supp. 2012) defines a firearm as “any weapon which is
designed to or may readily be converted to expel any projec-
tile by the action of an explosive or frame or receiver of any
such weapon.” Thus, we find no merit to Tharp’s argument
that under § 69-2403, felons are allowed to purchase antique
firearms because no certificate is required.
The remainder of Tharp’s argument centers upon federal
statutes regarding firearms which are much more specific and
detailed than the Nebraska statutes in regard to federal defini-
tions and classifications of firearms. However, Tharp was not
charged in federal court with a violation of federal law, but was
charged with violations of Nebraska criminal statutes.
[6] As to Tharp’s sufficiency of the evidence argument,
regardless of whether the evidence is direct, circumstantial, or
a combination thereof, and regardless of whether the issue is
labeled as a failure to direct a verdict, insufficiency of the evi-
dence, or failure to prove a prima facie case, the standard is the
same: In reviewing a criminal conviction, an appellate court
does not resolve conflicts in the evidence, pass on the cred-
ibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact, and a conviction will be affirmed, in the
absence of prejudicial error, if the evidence admitted at trial,
viewed and construed most favorably to the State, is sufficient
to support the conviction. State v. Collins, 281 Neb. 927, 799
N.W.2d 693 (2011).
The plain language of § 28-1201(1) is that a firearm is “any
weapon which is designed to or may readily be converted to
expel any projectile by the action of an explosive or frame or
receiver of any such weapon.” The Legislature has not indi-
cated that it intends for the definition of firearm to be any more
specific than that definition.
The undisputed evidence presented at trial was that Tharp
had previously been charged with a felony, that Tharp was
in possession of two black powder handguns, and that both
Decisions of the Nebraska Court of Appeals
464 22 NEBRASKA APPELLATE REPORTS
handguns were designed or had the ability to expel a projectile
by the action of the explosive black gunpowder. Clearly, the
evidence was sufficient for the jury to find Tharp guilty of both
counts of felon in possession of a firearm. This assignment of
error is without merit.
CONCLUSION
In conclusion, Tharp failed to preserve the issue of the
motion to suppress for appellate review, and given the plain
language of § 28-1201, the evidence presented at trial was suf-
ficient for the jury to convict Tharp of two counts of felon in
possession of a firearm. Tharp’s assignments of error are with-
out merit, and as such, we affirm.
Affirmed.