State v. Jasper
| Decision Date | 05 April 1991 |
| Docket Number | No. 89-1456,89-1456 |
| Citation | 467 N.W.2d 855,237 Neb. 754 |
| Parties | STATE of Nebraska, Appellee, v. Conrad A. JASPER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Jury Instructions: Proof: Appeal and Error. In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.
2. Trial: Evidence: Proof: Directed Verdict: Words and Phrases. "Prima facie evidence" means that proof presented on an issue is sufficient to submit the issue to the fact finder for disposition and precludes a directed verdict against the party with the burden of proof on the issue in a jury trial or exclusion of a particular issue from consideration in a nonjury trial.
3. Presumptions: Words and Phrases. A presumption is a fact inferred from another proved or established fact or facts.
4. Constitutional Law: Criminal Law: Due Process: Proof: Presumptions: Directed Verdict. As a result of the constitutional guarantee of due process, including the presumption of innocence and the State's burden of proof beyond a reasonable doubt, a verdict cannot be directed against a defendant in a criminal case.
5. Criminal Law: Trial: Jury Instructions: Directed Verdict: Due Process. An instruction which directs a verdict against a defendant, either on the issue of guilt for a crime charged or on an element of the crime, violates the defendant's due process right to a fair trial in a criminal case.
6. Criminal Law: Trial: Jury Instructions: Due Process. An instruction which requires that a jury draw an inference adverse to a defendant in a trial of a criminal case deprives a defendant of, or denies a defendant, the due process right to a fair trial.
7. Circumstantial Evidence: Words and Phrases. "Circumstantial evidence" means facts or circumstances, proved or known, from which existence or nonexistence of another fact may be logically inferred or deduced through a rational process.
8. Jury Instructions. All instructions, read conjunctively, must correctly state the law, adequately state the issues, and not mislead the jury.
9. Criminal Law: Trial: Jury Instructions: Due Process: Presumptions: Proof. Due process in a trial of a criminal case prohibits an instruction which contradicts the presumption of a defendant's innocence or shifts to a defendant the burden of persuasion on an element of the crime charged against the defendant.
Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.
Conrad A. Jasper appeals his Douglas County jury conviction for possession of a short shotgun, a Class IV felony under Neb.Rev.Stat. § 28-1203(1) (Reissue 1989).
While on evening patrol in a police van, Adam Kyle, Mike Stewart, and Jeff Saalfeld, officers of the Omaha Police Division, observed a Buick driven by Jasper. Officer Kyle knew that Jasper had previously received a traffic citation for driving without an operator's license. Since Kyle believed that Jasper did not have a driver's license and the officers saw that the Buick lacked a front license plate, the officers stopped the Buick containing Jasper, who had been driving, and a passenger. In a radio communication with the officers, a police dispatcher reported that the Buick's rear license plate was stolen. The officers arrested Jasper for receipt of stolen property, namely, the stolen license plate, and commenced an inventory of the Buick's contents. During an inventory of the Buick's trunk, the officers found an unzipped gym bag which contained an unloaded 12-gauge shotgun with an overall length of 20 3/4 inches, that is, a "short shotgun." See Neb.Rev.Stat. § 28-1201(6) (Reissue 1989) (definition of short shotgun). Nothing in the Buick indicated that Jasper owned the car. Later investigation failed to establish Jasper's fingerprints on the shotgun. During custodial interrogation, Jasper denied that he owned the shotgun and stated that he was unaware of the shotgun's presence in the Buick's trunk.
Jasper was charged with a violation of § 28-1203(1), which, in pertinent part, provides: "Any person or persons who shall transport or possess any ... short shotgun commits [sic] a Class IV felony." Neb.Rev.Stat. § 28-1212 (Reissue 1989) states:
The presence in a motor vehicle other than a public vehicle of any firearm ... shall be prima facie evidence that it is in the possession of, and is carried by, all persons occupying such motor vehicle at the time such firearm or instrument is found, except this section shall not be applicable if such firearm or instrument is found upon the person of one of the occupants therein.
After Jasper declined to testify at his trial, the court, over Jasper's objection, gave instruction No. 6 to the jury:
The presence in a motor vehicle of any firearm shall be prima facie evidence that it is in the possession of, and is carried by, all persons occupying such motor vehicle at the time such firearm is found, unless such firearm is found upon the person of one of the occupants.
Prima facie evidence is evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted.
You may accept any presumption raised by prima facie evidence, but you are not required to do so. The evidence of presence of the firearm in the vehicle must be shown beyond a reasonable doubt.
The court also instructed the jury that Jasper was presumed innocent until proved guilty beyond a reasonable doubt and that the burden of proof concerning all elements of the crime, including Jasper's control over a short shotgun and his "willful, intentional, and knowing" possession of the firearm, remained with the State and never shifted to Jasper. The jury found Jasper guilty of possessing a short shotgun.
Jasper's sole assignment of error is that jury instruction No. 6 deprived him of due process by relieving the State of its burden to prove beyond a reasonable doubt each element of the crime charged and by shifting to Jasper the burden to disprove possession of the shotgun.
In rather astute observations, the State correctly and succinctly summarizes the situation in Jasper's case:
There is some reason to believe that [§ 28-1212] was not designed for the purpose of creating a presumption to be used by the jury but instead was intended to be used as a guide for the court to know when there was enough evidence to place the case before the jury....
....
Given the potential constitutional problems involved when presumptions are employed, one may question the wisdom of using them.
Brief for appellee at 5 and 9.
"In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant." Rose v. City of Lincoln, 234 Neb. 67, 74, 449 N.W.2d 522, 528 (1989). Accord State v. Harney, 237 Neb. 512, 466 N.W.2d 540 (1991).
With the exception of an erroneous admission or exclusion of evidence, a defendant, as the appellant claiming reversible error in a criminal case, must demonstrate that a trial court's conduct, whether action or inaction during the proceeding against the defendant, prejudiced or otherwise adversely affected a substantial right of the defendant.
State v. Juhl, 234 Neb. 33, 45-46, 449 N.W.2d 202, 211 (1989). Accord State v. Harney, supra.
The trial court used "prima facie evidence" in each paragraph of instruction No. 6. The State suggests that the first paragraph of instruction No. 6 "was apparently derived from Neb.Rev.Stat. § 28-1212...." Brief for appellee at 4.
"Prima facie evidence" means that proof presented on an issue is sufficient to submit the issue to the fact finder for disposition and precludes a directed verdict against the party with the burden of proof on the issue in a jury trial or exclusion of a particular issue from consideration in a nonjury trial. See, State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990); State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987). Cf. Dale v. Thomas Funeral Home, 237 Neb. 528, 529, 466 N.W.2d 805 806 (1991): "A 'prima facie case' means that evidence sufficiently establishes elements of a cause of action and, notwithstanding a motion for a directed verdict in a jury trial or motion to dismiss in a nonjury trial, allows submission of the case to the fact finder for disposition."
Although "prima facie evidence" is found in § 28-1212 as a part of the Nebraska Criminal Code, the content of a statute within the criminal code is not necessarily and always proper information for a jury. While certain facts or circumstances expressed as "prima facie evidence" in a criminal statute may provide some guidance to a court in a judicial determination whether a particular issue is submissible to a jury, information about a judicial standard for evaluating evidence supplies nothing helpful for a jury's discharging its duty of factfinding and, consequently, only encumbers the deliberative process essential to proper determination of factual questions. Thus, "prima facie evidence," as a standard for a court's evaluation of evidence, was unnecessary and, was, therefore, inappropriately included in instruction No. 6.
Nature of a Presumption.
A presumption is a fact inferred from another proved or established fact or facts. State v. Kipf, supra. M. Graham, Handbook of Federal Evidence § 303.4 at 129 (3d ed. 1991).
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