State v. Valentine

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/05/2019 09:06 AM CST
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STATE v. VALENTINE
Cite as 27 Neb. Ct. App. 725
State of Nebraska, appellee, v.
Daejerron L. Valentine,
appellant.
___ N.W.2d ___
Filed October 29, 2019. No. A-18-902.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error. But whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Probable Cause. An officer’s stop of a vehicle is objectively reasonable
when the officer has probable cause to believe that a traffic violation
has occurred.
3. Search and Seizure: Warrantless Searches: Motor Vehicles. Searches
and seizures must not be unreasonable, and searches without a valid
warrant are per se unreasonable, subject only to a few specifically
established and well-delineated exceptions, including the automo-
bile exception.
4. Search and Seizure: Warrantless Searches: Probable Cause: Motor
Vehicles. The automobile exception to the warrant requirement applies
when a vehicle is readily mobile and there is probable cause to believe
that contraband or evidence of a crime will be found in the vehicle.
5. Search and Seizure: Warrantless Searches: Probable Cause: Motor
Vehicles: Police Officers and Sheriffs: Controlled Substances.
Officers with sufficient training and experience who detect the odor of
marijuana emanating from a vehicle have probable cause on that basis
alone to search the vehicle under the automobile exception to the war-
rant requirement.
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6. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
7. Statutes: Legislature: Intent. The fundamental objective of statutory
interpretation is to ascertain and carry out the Legislature’s intent.
8. Statutes. Statutory language is to be given its plain and ordi-
nary meaning.
9. Statutes: Legislature: Intent. Only if a statute is ambiguous or if the
words of a particular clause, taken literally, would plainly contradict
other clauses of the same statute, lead to some manifest absurdity, to
some consequences which a court sees plainly could not have been
intended, or to a result manifestly against the general term, scope, and
purpose of the law, may the court apply the rules of construction to
ascertain the meaning and intent of the lawgiver.
10. Statutes. A statute is ambiguous if it is susceptible of more than one rea-
sonable interpretation, meaning that a court could reasonably interpret
the statute either way.
11. Statutes: Legislature: Intent. An appellate court can examine an act’s
legislative history if a statute is ambiguous or requires interpretation.
12. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
13. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
14. Jury Instructions: Appeal and Error. In an appeal based on a claim
of an erroneous jury instruction, all the jury instructions must be
read together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitat-
ing reversal.
15. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
16. Jury Instructions. Whenever an applicable instruction may be taken
from the Nebraska Jury Instructions, that instruction is the one which
should usually be given to the jury in a criminal case.
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STATE v. VALENTINE
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Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Jessica C. West for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
R iedmann, Bishop, and A rterburn, Judges.
A rterburn, Judge.
I. INTRODUCTION
Following a jury trial, Daejerron L. Valentine was con-
victed of possession of a deadly weapon by a prohibited
person and possession of marijuana. Valentine appeals from
his convictions. On appeal, he challenges the district court’s
failure to suppress evidence seized during a traffic stop of
his vehicle and the district court’s interpretation of Neb. Rev.
Stat. § 28-1206 (Supp. 2017), which delineates the elements of
the offense of possession of a deadly weapon by a prohibited
person. Valentine also argues that the district court erred in
giving certain jury instructions and refusing his proposed jury
instructions. Following our review of the record, we affirm
Valentine’s convictions.
II. BACKGROUND
On July 25, 2018, the State filed an amended information
charging Valentine with one count of possession with intent to
distribute marijuana, in violation of Neb. Rev. Stat. § 28-416
(Cum. Supp. 2018), and one count of possession of a deadly
weapon (firearm) by a prohibited person, second offense, in
violation of § 28-1206. The charges against Valentine stem
from a traffic stop of his vehicle which occurred on October
12, 2017.
On the evening of October 12, 2017, Patrick Dempsey, an
Omaha Police Department detective assigned to the “gang
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suppression unit,” was on patrol in the northeast part of
Omaha, Nebraska, in a marked police cruiser with his partner.
At approximately 10:30 p.m., Dempsey observed the passen-
ger side of a white vehicle driving in front of him near the
intersection of 23d and Sprague Streets. Dempsey believed
that the tint on the windows of the vehicle was too dark
and, thus, constituted a traffic violation. During Dempsey’s
trial testimony, he explained that the tint on the rear side
windows of a vehicle is permitted to be darker than the tint
on the front side windows of a vehicle. As such, he testified
that if the tint on the front side windows matches the tint on
the back side windows, the tint on the front side windows is
probably darker than is permitted. Dempsey observed that
the tint on the windows of the vehicle was all the same color
and appeared to Dempsey to be darker than is permitted. In
addition, Dempsey could not observe anyone in the vehicle
because of the dark color of the tint. Dempsey explained that
if a vehicle has the correct tint in the front, a person should be
able to observe the occupants inside the vehicle through the
front side windows.
Because of Dempsey’s belief that the tint on the windows
of the vehicle was darker than what is permitted, he initiated
a traffic stop. At the point that Dempsey was approaching the
vehicle on the driver’s side, he was able to observe that there
was only one occupant. That occupant was later identified as
Valentine. Valentine rolled down the window on the driver’s
side of the vehicle and spoke with Dempsey. While Dempsey
was speaking with Valentine, he detected the strong odor
of burnt marijuana coming from the vehicle. As a result of
Dempsey’s observation, he asked Valentine to step out of the
vehicle. Dempsey also asked Valentine if he had been smoking
marijuana in the vehicle. Valentine denied smoking marijuana
himself, but did admit that he had a friend who had smoked
marijuana in the vehicle.
Dempsey conducted a search of Valentine’s person, but did
not locate any marijuana. Dempsey then conducted a search
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of the vehicle. In the center console between the front seats,
Dempsey located two baggies of a substance which subsequent
testing revealed was marijuana. One baggie contained 18.8
grams of marijuana and one baggie contained 9.196 grams
of marijuana. As such, the total weight of marijuana found
in the baggies was 27.996 grams, or just under 1 ounce. Also
in the center console, Dempsey located “a working digital
scale” and two empty baggies similar to those which contained
the marijuana.
When Dempsey searched the front passenger door of the
vehicle, he located a gun hidden beneath the control panel for
the door’s window and locking mechanism. When he searched
the trunk of the vehicle, Dempsey located $240 in cash hidden
in a tennis shoe and an opened box of baggies which were
similar to those which contained the marijuana. After conduct-
ing the search of the vehicle, Dempsey tested the window tint
and discovered that the front side windows were darker than
is permitted by law. Ultimately, Valentine was placed under
arrest and transported to police headquarters.
In July 2018, trial was held. During the trial, Dempsey
testified regarding the traffic stop and subsequent search of
Valentine’s vehicle which had occurred on October 12, 2017.
In conjunction with Dempsey’s testimony, the State offered
into evidence the video obtained from Dempsey’s “body-worn
camera” which depicted the traffic stop and the subsequent
search. The video depicts Dempsey’s initial observations of
Valentine’s vehicle prior to the traffic stop, his interactions
with Valentine, and his detailed search of Valentine’s vehicle.
In particular, the video portrays Dempsey’s discovery of the
gun which was hidden in the front passenger door. After
Dempsey opens the passenger door, he searches a compartment
at the base of the door, but finds nothing of evidentiary value.
He then pulls, without much force, on the control panel for the
door’s window and locking mechanism, and the control panel
easily comes off of the door to reveal a “void” in the vehicle’s
door. Dempsey testified that “[t]here was nothing attaching
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[the control panel] other than the cord.” Inside the void, a gun
is readily visible.
During Dempsey’s trial testimony, he opines that given
everything that he found in Valentine’s vehicle, including the
marijuana, the gun, the digital scale, the cash, and the baggies,
that Valentine intended to distribute the marijuana. Dempsey
noted that he did not find any items in the vehicle which would
indicate that Valentine, himself, had smoked or was planning
on smoking the marijuana.
The State presented evidence at trial to prove that the gun
found in Valentine’s vehicle was loaded and in working order.
DNA testing conducted on the gun revealed that Valentine
could not be excluded as the major contributor to the DNA
found on the gun. The probability of an individual not related
to Valentine matching the DNA profile from the gun is approxi-
mately 1 in 26.8 septillion. The parties stipulated that Valentine
has previously been convicted of a felony.
At the close of the evidence, the jury found Valentine guilty
of possession of marijuana, less than 1 ounce, a lesser-included
offense of possession of marijuana with the intent to distribute,
as the State charged in its amended information. The jury also
found Valentine guilty of possession of a deadly weapon by a
prohibited person. The district court subsequently sentenced
Valentine to a $300 fine on his conviction for possession of
marijuana. The court found that Valentine’s conviction for pos-
session of a deadly weapon by a prohibited person was a sec-
ond offense and sentenced him to 20 to 20 years’ imprisonment
plus 1 day on that conviction.
Valentine appeals from his convictions.
III. ASSIGNMENTS OF ERROR
On appeal, Valentine assigns that the district court erred
in (1) overruling his motion to suppress evidence seized as
a result of the traffic stop because there was not probable
cause to stop his vehicle and because the search of his entire
vehicle was not reasonable or supported by probable cause;
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(2) incorrectly interpreting § 28-1206, as it read at the time of
his arrest; and (3) giving improper jury instructions.
IV. ANALYSIS
1. Motion to Suppress Evidence
(a) Additional Background
Prior to trial, Valentine filed a motion to suppress the evi-
dence obtained as a result of the search of his vehicle. After
a hearing, where Dempsey testified in detail regarding the
traffic stop and the subsequent search of Valentine’s vehicle,
the district court denied the motion to suppress, finding that
“all of the officers’ actions that evening were appropriate and
in accordance with Nebraska law.” Subsequently, Valentine’s
original counsel withdrew from the case and another attorney
was appointed to represent him. Valentine’s second attorney
filed a motion asking the court to reconsider its ruling on the
motion to suppress and to “reopen the evidentiary hearing to
allow defense counsel to re-cross examine State’s witnesses
and to present . . . newly discovered evidence.” The district
court granted Valentine’s request, and a new evidentiary hear-
ing on the motion to suppress was held.
At the second evidentiary hearing, Dempsey again testi-
fied regarding the traffic stop and the subsequent search of
Valentine’s vehicle. In addition to the details provided in the
background section above, Dempsey provided more specific
details at this hearing regarding the search of Valentine’s
vehicle. Dempsey explained that he commonly checks the
control panel on a vehicle’s doors during his searches because,
in his experience, it is common for people to hide drugs or
guns in that location. He testified that once that control panel
is removed, there is a “little hidden compartment” inside the
door. Dempsey also indicated that during the course of the
stop of Valentine’s vehicle, he received information from other
officers that they had been looking for Valentine because they
believed him to be selling marijuana and to be armed with a
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gun. Dempsey indicated that he did not have this information
prior to initiating the traffic stop of Valentine.
At the close of the hearing, Valentine’s counsel argued first
that all of the evidence seized during the search of Valentine’s
vehicle should be suppressed because “it’s questionable whether
or not [police] really were pulling him over for a window tint
violation.” Counsel suggested that Dempsey would have been
unable to observe a window tint violation “at 11:00 at night
with very little lighting.” Counsel also argued that the evidence
seized from the vehicle after the marijuana was found in the
center console should be suppressed because the search went
“beyond the scope of the . . . traffic stop.”
The district court again overruled Valentine’s motion to sup-
press the evidence seized during the search of his vehicle. The
court reiterated its previous finding that “all of the officers’
actions [on the] evening [of the traffic stop] were appropriate
and in accordance with Nebraska law.” Valentine challenges
the district court’s decision to overrule his motion to sup-
press evidence.
(b) Standard of Review
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trig-
ger or violate Fourth Amendment protections is a question
of law that an appellate court reviews independently of the
trial court’s determination. State v. Nunez, 299 Neb. 340, 907
N.W.2d 913 (2018).
(c) Traffic Stop Was Unlawful
Valentine asserts that the district court erred in overruling
his motion to suppress all of the evidence seized during the
traffic stop because there was not probable cause to stop his
vehicle. We disagree with his contention.
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[2] An officer’s stop of a vehicle is objectively reasonable
when the officer has probable cause to believe that a traffic
violation has occurred. State v. Draganescu, 276 Neb. 448,
755 N.W.2d 57 (2008). Traffic violations, no matter how
minor, create probable cause to stop the driver of a vehicle.
Id. Neb. Rev. Stat. § 60-6,257 (Reissue 2010) provides, in
relevant part:
(1) It shall be unlawful for a person to drive a motor
vehicle required to be registered in this state upon a
highway:
(a) If the windows in such motor vehicle are tinted so
that the driver’s clear view through the windshield or side
or rear windows is reduced or the ability to see into the
motor vehicle is substantially impaired;
(b) If the windshield has any sunscreening material that
is not clear and transparent below the AS-1 line or if it
has a sunscreening material that is red, yellow, or amber
in color above the AS-1 line;
(c) If the front side windows have any sunscreening or
other transparent material that has a luminous reflectance
of more than thirty-five percent or has light transmission
of less than thirty-five percent; [or]
(d) If the rear window or side windows behind the
front seat have sunscreening or other transparent material
that has a luminous reflectance of more than thirty-five
percent or has light transmission of less than twenty per-
cent except for the rear window or side windows behind
the front seat on a multipurpose vehicle, van, or bus[.]
Dempsey initiated a traffic stop of Valentine’s vehicle due
to his suspicion that the tint on the side windows of the vehi-
cle was too dark pursuant to § 60-6,257. On appeal, Valentine
challenges the stop of his vehicle, arguing that Dempsey did
not use an “objective basis” in determining that the side win-
dows were too darkly tinted. Brief for appellant at 15.
Contrary to Valentine’s argument on appeal, Dempsey tes-
tified that he relied on two objective bases in forming his
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suspicion that Valentine’s tint was too dark. First, Dempsey
explained that the tint color on the front side windows appeared
to be the same as that on the rear side windows. Pursuant to
§ 60-6,257(1)(c) and (d), the tint on the front side windows is
required to be lighter than the tint on the rear side windows.
When Dempsey observed that the windows on Valentine’s
vehicle had all the same color of tint, he suspected the tint on
the front side windows was too dark.
Additionally, Dempsey testified that the tint on the vehicle’s
windows was so dark that he could not readily observe anyone
in the vehicle. Dempsey explained that if a vehicle has tint
in compliance with § 60-6,257(1), police should be able to
“almost see somebody in the vehicle.” Here, Dempsey testified
that he was unable to observe an occupant in the vehicle until
he had gotten out of his police cruiser and was approaching
Valentine’s vehicle. Section 60-6,257(1)(a) provides that it is
unlawful to have tint on a vehicle’s windows which “substan-
tially impair[s]” the ability to see into the vehicle.
Valentine takes issue with Dempsey’s testimony that the
tint on the vehicle’s windows impaired his ability to see inside
the vehicle. Valentine points to a small part of Dempsey’s
testimony from the initial suppression hearing. After Dempsey
specifically testified that he could not see anyone in the
vehicle due to the dark color of tint, he indicated that he ini-
tiated a traffic stop of Valentine’s vehicle and made contact
with Valentine who was the lone occupant. The prosecutor
then asked Dempsey, “Now, at that time, because of the tinted
windows, were you able to see if there was more than one per-
son in the car?” Dempsey responded affirmatively. Although
Valentine directs us to this testimony in an attempt to prove
that Dempsey could, in fact, see into the vehicle through the
tint before the traffic stop was made, we read this testimony
differently. In the context of the question and Dempsey’s
response in his previous answer, his testimony indicates that
he could see that there was one occupant in Valentine’s vehicle
only after he had initiated the traffic stop. This testimony is
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consistent with Dempsey’s initial testimony, as well as his
later explanation that he could see an occupant of the vehicle
only after he got out of his police cruiser and began approach-
ing Valentine’s vehicle. Ultimately, we conclude Dempsey
clearly testified that when he stopped Valentine’s vehicle, he
did so, in part, because the tint on the vehicle’s windows was
so dark he could not see anyone inside.
Based upon our reading of the record, we find that the dis-
trict court did not err in overruling Valentine’s motion to sup-
press evidence on the basis that there was no probable cause
to initiate a traffic stop of his vehicle. The State presented suf-
ficient evidence to establish that Dempsey reasonably believed
that Valentine had committed a traffic violation by operating a
motor vehicle which had windows that were tinted darker than
is permitted by § 60-6,257. In reaching our conclusion, we
note that Dempsey’s subsequent testing of Valentine’s windows
revealed that the front side windows were, in fact, not in com-
pliance with the requirements of § 60-6,257(1)(a).
(d) Search of Passenger Door
Valentine also asserts that the district court erred in fail-
ing to suppress the evidence found in the vehicle subsequent
to the location of the marijuana in the center console. In his
brief, Valentine explains that because the probable cause to
search the vehicle arose from Dempsey’s smelling the odor
of burnt marijuana, once the marijuana “was successfully
located,” Dempsey “did not have probable cause to believe
that contraband was hidden in any other part of the auto-
mobile and, thus, a search of the entire vehicle was with-
out probable cause and was unreasonable under the [F]ourth
[A]mendment.” Brief for appellant at 19. Again, we disagree
with Valentine’s contention.
[3] Both the Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures. State v. Seckinger, 301
Neb. 963, 920 N.W.2d 842 (2018). The ultimate touchstone
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is one of reasonableness. Id. Searches and seizures must not
be unreasonable, and searches without a valid warrant are
per se unreasonable, subject only to a few specifically estab-
lished and well-delineated exceptions, including the automo-
bile exception. See id.
[4] The automobile exception to the warrant requirement
applies when a vehicle is readily mobile and there is probable
cause to believe that contraband or evidence of a crime will be
found in the vehicle. Id. A vehicle is readily mobile whenever
it is not located on private property and is capable or appar-
ently capable of being driven on the roads or highways. Id.
[5] The Nebraska Supreme Court has consistently held that
officers with sufficient training and experience who detect
the odor of marijuana emanating from a vehicle have prob-
able cause on that basis alone to search the vehicle under the
automobile exception to the warrant requirement. Id. See, e.g.,
State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981); State v.
Ruzicka, 202 Neb. 257, 274 N.W.2d 873 (1979); State v. Daly,
202 Neb. 217, 274 N.W.2d 557 (1979); State v. Benson, 198
Neb. 14, 251 N.W.2d 659 (1977). Accord State v. Reha, 12
Neb. Ct. App. 767, 686 N.W.2d 80 (2004). Additionally, in State
v. Watts, supra, the Supreme Court rejected an argument that
once law enforcement discovered marijuana in the vehicle,
the search must end unless there were additional facts to sug-
gest contraband may be found elsewhere in the vehicle. The
court stated:
[I]t [is] just as logical to conclude that the finding of the
small amount of marijuana in the passenger compart-
ment, after being told by the defendant that none existed,
simply served to substantiate the officer’s suspicions and
furnish additional probable cause to make a complete
search of the automobile. Having found a quantity of
illicit drugs in one part of the automobile does not sensi-
bly suggest the probability that no more such substance
is present.
Id. at 374, 307 N.W.2d at 819.
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Given that Dempsey detected the odor of marijuana emanat-
ing from Valentine’s vehicle, he had probable cause to search
the entire vehicle, even after he had located the baggies of
marijuana in the vehicle’s center console. Dempsey’s discovery
of marijuana in the vehicle “served to substantiate [his] suspi-
cions and furnish additional probable cause to make a complete
search of the automobile.” See id. The district court did not
err in overruling Valentine’s motion to suppress the evidence
found in Dempsey’s thorough search of the vehicle.
2. Interpretation of § 28-1206
(a) Additional Background
After Valentine’s first attorney withdrew from the case,
Valentine’s second attorney requested that Valentine be permit-
ted to withdraw his plea of not guilty. The court granted this
request. Counsel then filed a motion to quash, arguing that
the language used within the information did not comply with
the language of § 28-1206, which delineated the elements of
possession of a firearm by a prohibited person, as that statute
existed on October 12, 2017.
In the information, the State alleged:
On or about 12 October 2017, in Douglas County,
Nebraska, [Valentine] did then and there unlawfully pos-
sess a deadly weapon to wit: a firearm and has previously
been convicted of a felony, is a fugitive from justice, or
is the subject of a current and validly issued domestic
violence protection order and is knowingly violating such
order, or has been convicted within the past seven years
of a misdemeanor crime of domestic violence . . . .
Valentine asserts that this language is not consistent with the
language of § 28-1206 as it existed on October 12, 2017. At
that time, § 28-1206 read as follows:
(1) A person commits the offense of possession of a
deadly weapon by a prohibited person if he or she:
(a) Possesses a firearm, a knife, or brass or iron knuck-
les and he or she:
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(i) Has previously been convicted of a felony;
(ii) Is a fugitive from justice;
(iii) Is the subject of a current and validly issued
domestic violence protection order, harassment protection
order, or sexual assault protection order and is knowingly
violating such order[.]
Essentially, Valentine argued that because the word “or” did
not appear anywhere between subsections (1)(a)(i), (1)(a)(ii),
or (1)(a)(iii) of § 28-1206, that in order for an individual to be
defined as a “prohibited person,” he or she must be at the same
time a previously convicted felon, a fugitive from justice, and
subject to a current or validly issued domestic violence or
harassment protection order.
To the contrary, the State argued that § 28-1206, as it
appeared in October 2017, was ambiguous because there was
neither an “and” nor an “or” between subsections (1)(a)(i),
(1)(a)(ii), or (1)(a)(iii). The State urged the district court
to consider the legislative history surrounding this statu-
tory section, which the State offered into evidence over
Valentine’s relevance objections, in determining how to inter-
pret § 28-1206.
The legislative history reveals that in April 2017, § 28-1206
was amended in order to provide an exemption to the Nebraska
Criminal Code regarding possession of deadly weapons by
exempting archery equipment and knives intended for rec-
reational purposes. In addition, it added those individuals
who are subject to harassment protection orders to the list of
those prohibited from weapon possession under the criminal
code. However, in amending the statutory language for these
specific purposes, the Legislature inadvertently left out an
“or” between subsections (1)(a)(i), (1)(a)(ii), and (1)(a)(iii).
This omission was rectified in January 2018. The current
version of § 28-1206 is identical to the one that existed in
October 2017, except there is an “or” between subsections
(1)(a)(ii) and (1)(a)(iii), such that in order for an individual
to be defined as a “prohibited person,” he or she must be
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either a previously convicted felon, a fugitive from justice,
or subject to a current and validly issued domestic vio-
lence or harassment protection order. See § 28-1206 (Cum.
Supp. 2018).
The district court overruled Valentine’s motion to quash,
finding that the information correctly defined the elements of
possession of a deadly weapon by a prohibited person. In a
written order, the court found that § 28-1206, as it appeared
in October 2017, was ambiguous because “it could be argued
that it is likely that the Legislature intended the word ‘or’ to
be present within the statute as much as it is likely that the
Legislature intended the word ‘and’ to be present within the
statute.” And, that because the statutory language was ambig­
uous, the court could review the legislative history in order to
resolve the ambiguity. The district court stated:
This Court is in agreement with the State that to interpret
the statute as suggested and argued by [Valentine] would
lead to a manifest absurdity, to consequences which this
Court sees plainly could not have been intended and fur-
ther to result manifestly against the general term, scope,
and purpose of Neb. Rev. Stat. §28-1206. The Court
interprets the statute as if the disjunctive “or” existed
between subsections a(ii) and a(iii). Thus, requiring a
“prohibited person” to be only one of the elements, not
all of them.
Valentine subsequently renewed his argument with respect
to the elements necessary to prove him guilty of possession
of a deadly weapon by a prohibited person when he made a
motion to dismiss at the close of the State’s case. Valentine’s
counsel argued:
The statute specifically requires the State to prove beyond
a reasonable doubt that . . . Valentine was not only a con-
victed felon, but also, in order to be a prohibited person,
he needed to have an active protection order which he
was violating as well as have an active — be a fugitive
from justice.
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The State, obviously, has presented no evidence that
there was an active warrant against . . . Valentine at the
time of the stop. They produced no evidence that there
was an active protection order against him or that he
was in violation of that. So they have failed to meet
their burden under the law as it was written and applies
to . . . Valentine in this case for these charges on October
12, 2017.
The district court denied Valentine’s motion to dismiss, citing
its previous rationale in denying his motion to quash.
On appeal, Valentine argues that the district court erred
in interpreting § 28-1206, as it existed in October 2017, to
define a “prohibited person” as someone who is a convicted
felon, who is a fugitive from justice, or who is subject to a
current domestic violence or harassment protection order,
rather than as someone who fits into all three categories
simultaneously. Valentine asserts that the district court’s erro-
neous interpretation of § 28-1206 denied him due process
and caused him to be convicted of the crime of possession
of a deadly weapon by a prohibited person when there was
insufficient evidence presented to prove his guilt. Upon our
review, we do not agree with Valentine’s assertions. Rather,
we agree with the district court’s interpretation of § 28-1206,
as it existed in October 2017.
(b) Standard of Review
[6] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination. State v. Lovvorn, 303 Neb. 844, 932 N.W.2d
64 (2019).
(c) Analysis
Valentine’s assertions that he was denied due process and
convicted of possession of a deadly weapon by a prohib-
ited person when there was insufficient evidence presented
to prove his guilt both center on the correct interpretation
of § 28-1206, as it existed in October 2017. As such, we
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must first analyze the appropriate statutory interpretation of
this section.
[7-10] The fundamental objective of statutory interpreta-
tion is to ascertain and carry out the Legislature’s intent.
State v. McColery, 301 Neb. 516, 919 N.W.2d 153 (2018).
Statutory language is to be given its plain and ordinary mean-
ing. State v. Garcia, 301 Neb. 912, 920 N.W.2d 708 (2018).
Only if a statute is ambiguous or if the words of a particular
clause, taken literally, would plainly contradict other clauses
of the same statute, lead to some manifest absurdity, to some
consequences which a court sees plainly could not have
been intended, or to a result manifestly against the general
term, scope, and purpose of the law, may the court apply the
rules of construction to ascertain the meaning and intent of
the lawgiver. State v. Frederick, 291 Neb. 243, 864 N.W.2d
681 (2015). A statute is ambiguous if it is susceptible of
more than one reasonable interpretation, meaning that a court
could reasonably interpret the statute either way. State v.
McColery, supra.
The district court found that the language of § 28-1206, as
it appeared in October 2017 was ambiguous because there was
neither an “and” nor an “or” between subsections (1)(a)(i),
(1)(a)(ii), and (1)(a)(iii). We agree with the district court’s
finding. The plain meaning of the statute as it then existed
is not readily discernible because the language is susceptible
to more than one reasonable interpretation. Specifically, it is
not clear from the language of the statute if the Legislature
intended to define a prohibited person as someone who is a
convicted felon, who is a fugitive from justice, or who is sub-
ject to a current domestic violence or harassment protection
order, or if it intended to define a prohibited person as some-
one who fits into all three categories simultaneously. And, as
the district court noted in its order, “it could be argued that it is
likely that the Legislature intended the word ‘or’ to be present
within the statute as much as it is likely that the Legislature
intended the word ‘and’ to be present within the statute.”
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[11] Given that we have found the language of § 28-1206,
as it existed in October 2017, to be ambiguous, we turn to
the legislative history to aid in our interpretation. An appel-
late court can examine an act’s legislative history if a statute
is ambiguous or requires interpretation. State v. McColery,
supra. As we discussed more thoroughly above, the legis-
lative history surrounding the 2017 and 2018 revisions to
§ 28-1206 clearly indicates that the Legislature intended that
a prohibited person be defined as someone who met only one
of the three criteria listed in subsections (1)(a)(i), (1)(a)(ii),
and (1)(a)(iii).
Prior to the 2017 revisions to the statute, § 28-1206 clearly
defined a prohibited person as someone who met only one
of the criteria listed. See § 28-1206 (Reissue 2016). The
Legislature revised § 28-1206 in 2017 in order to provide
an exemption within the Nebraska Criminal Code regard-
ing possession of deadly weapons by exempting archery
equipment and knives intended for recreational purposes. The
Legislature also added those individuals who are subject to
harassment protection orders to the list of those prohibited
from weapon possession under the criminal code. Nowhere
in the legislative history of § 28-1206 is there any indica-
tion that the Legislature intended to change the definition
of a prohibited person to include only those individuals who
met all three criteria listed in subsections (1)(a)(i), (1)(a)(ii),
and (1)(a)(iii) simultaneously. In addition, the removal of the
word “or” between subsections (1)(a)(ii) and (1)(a)(iii) was
clearly unintended, as the Legislature amended § 28-1206,
effective July 19, 2018, to correct this “typographical error.”
See Introducer’s Statement of Intent, L.B. 848, Judiciary
Committee, 105th Leg., 2d Sess. (Jan. 19, 2018).
We agree with the district court that § 28-1206, as it
appeared in October 2017, should be interpreted as if the
disjunctive “or” existed between subsections (1)(a)(ii) and
(1)(a)(iii). Thus, § 28-1206 defines a “prohibited person” as
someone who meets one of the listed elements, not all of
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them. Given our interpretation of the statutory language, we
do not find that Valentine’s right to due process was violated
or that he was convicted of being a prohibited person in pos-
session of a deadly weapon without sufficient evidence. A
concealed firearm bearing Valentine’s DNA was located in
the vehicle he was driving, and the parties stipulated that
Valentine was previously convicted of a felony.
3. Jury Instructions
Valentine asserts that the district court erred by failing to
properly instruct the jury prior to its deliberations. Specifically,
Valentine claims that the district court erred by improperly
instructing the jury regarding the elements and requisite intent
necessary to find Valentine guilty of possession of a deadly
weapon by a prohibited person and regarding the definition of
the term “possession.”
We address each of these claims in turn.
(a) Standard of Review
[12] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. State v. Bigelow, 303 Neb. 729, 931
N.W.2d 842 (2019).
(b) Jury Instruction No. 3
Valentine first argues that the district court erred in giving
jury instruction No. 3, which delineated the charges brought
against Valentine by the State. In particular, Valentine takes
issue with the district court’s recitation of the charge of pos-
session of a deadly weapon by a prohibited person. Valentine’s
argument mirrors the argument he made with regard to the
district court’s interpretation of § 28-1206, as it appeared in
October 2017. Valentine asserts that the court should have
inserted an “and” between subsections (1)(a)(i), (1)(a)(ii), and
(1)(a)(iii), rather than an “or,” based on Valentine’s assertion
that in October 2017, § 28-1206 required that the State prove
that Valentine had previously been convicted of a felony,
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was a fugitive from justice, and was the subject of a current
protection order. As we discussed above, § 28-1206 requires
only that Valentine be either a convicted felon, a fugitive from
justice, or subject to a current protection order, not all three.
As such, Valentine’s assertion regarding jury instruction No.
3 must fail. The district court correctly instructed the jury
regarding the charge of possession of a deadly weapon by a
prohibited person when it included an “or” between subsec-
tions (1)(a)(ii) and (1)(a)(iii) of § 28-1206.
(c) Jury Instruction No. 6
Valentine next asserts that the district court erred in giv-
ing jury instruction No. 6, which delineated the specific ele-
ments the State needed to prove in order for the jury to find
Valentine guilty of possession of a deadly weapon by a pro-
hibited person. The portion of jury instruction No. 6 at issue
reads as follows:
The elements of the crime of Possession of a Deadly
Weapon (Firearm) by a Prohibited Person, as charged in
Count 2 of the Information, are:
1. That the defendant did possess a deadly weapon to
[sic] specifically: a firearm; and
2. That the Defendant did so on or about October 12,
2017 in Douglas County, Nebraska; and
3. That the Defendant had previously been convicted
of a felony.
Valentine requested that the court change jury instruction No.
6 such that “instead of reading ‘the defendant did possess a
deadly weapon,’” it would read, “‘the defendant did know-
ingly or intentionally possess a deadly weapon.’” Brief for
appellant at 26. The district court declined to make this change,
noting that jury instruction No. 9, which provided a defini-
tion of “possession,” included “the language that [Valentine]
is requesting.”
[13,14] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
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questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. State v. Swindle,
300 Neb. 734, 915 N.W.2d 795 (2018). All the jury instructions
must be read together, and if, taken as a whole, they correctly
state the law, are not misleading, and adequately cover the
issues supported by the pleadings and the evidence, there is no
prejudicial error necessitating reversal. Id.
Jury instruction No. 6 delineates the elements of possession
of a deadly weapon by a prohibited person using the exact
language contained within § 28-1206. The Supreme Court has
held that “[i]n giving instructions to the jury, it is proper for
the court to describe the offense in the language of the stat-
ute.” State v. Swindle, 300 Neb. at 744, 915 N.W.2d at 805.
The court explained that although the law does not require
that a jury instruction track the exact language of the statute,
using the specific language of a statute is an effective means
of implementing the intent of the Legislature. State v. Swindle,
supra. Given that the district court utilized the statutory lan-
guage in instructing the jury on the elements of possession of a
deadly weapon by a prohibited person, we cannot say that the
court erred in giving jury instruction No. 6.
Moreover, we note that Valentine cannot show that he was
in any way prejudiced by the district court’s decision to give
jury instruction No. 6 without the amendments requested by
Valentine. When looking at the jury instructions as a whole, it
is clear that jury instruction No. 9 explains the requisite intent
necessary to establish whether Valentine was in possession of
the deadly weapon. As such, jury instruction No. 9 provides the
information that Valentine asked the district court to include in
jury instruction No. 6. Accordingly, it is clear that the jury was
adequately instructed regarding the elements of possession of a
deadly weapon by a prohibited person.
(d) Jury Instruction No. 9
Finally, Valentine asserts that the district court erred in
giving jury instruction No. 9, which, as we explained above,
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provides a definition of the term “possession.” The portion of
jury instruction No. 9 at issue reads as follows: “‘Possession’
means either knowingly having it on one’s person or knowing
of the object’s presence and having control over the object.”
Valentine submitted a proposed jury instruction No. 9 which
changed the definition of the term “possession” as follows:
“‘Possession’ of a firearm means knowingly having it on
one’s person or knowing of the object’s presence and having
control over the object. Proximity, standing alone, is insuf-
ficient to prove possession.” The district court refused to give
Valentine’s proposed jury instruction.
[15] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. State v. Bigelow, 303
Neb. 729, 931 N.W.2d 842 (2019).
[16] Here, the district court used a pattern jury instruc-
tion regarding the definition of possession. See NJI2d Crim.
4.2. Whenever an applicable instruction may be taken from
the Nebraska Jury Instructions, that instruction is the one
which should usually be given to the jury in a criminal case.
State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013). In
fact, recently, in State v. Castellanos, 26 Neb. Ct. App. 310, 918
N.W.2d 345 (2018), this court upheld a jury instruction defin-
ing possession which was directly patterned after NJI2d Crim.
4.2. In Castellanos, the defendant requested that the district
court include the following language when instructing the
jury regarding the definition of possession: “‘The Defendant’s
mere presence in an area where items were ultimately discov-
ered is not enough to establish that the defendant was in “pos-
session” of said items.’” 26 Neb. Ct. App. at 326, 918 N.W.2d
at 358. The defendant also requested that the court instruct
the jury as follows: “‘Assuming an item is not found on the
defendant’s person, the defendant’s proximity to the item,
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standing alone, is insufficient to prove “possession.”’” Id.
We affirmed the district court’s decision to rely on the pattern
jury instruction defining the term “possession” rather than
using the defendant’s proposed definition.
As in State v. Castellanos, supra, Valentine asked the dis-
trict court to depart from the pattern jury instruction and
provide the jury with a more detailed definition of posses-
sion. Although Valentine’s proposed jury instruction No. 9
was not an incorrect statement of the law, Valentine cannot
show that he was prejudiced by the district court’s refusal of
his proposed jury instruction. When the instructions given are
considered together, it is clear that the district court properly
instructed the jury on the definition of the term “possession,”
and the court did not err in refusing to give Valentine’s pro-
posed jury instruction.
V. CONCLUSION
We conclude that the district court did not err in overruling
Valentine’s motion to suppress, in interpreting § 28-1206, or in
instructing the jury. Accordingly, Valentine’s convictions and
sentences are affirmed.
A ffirmed.