State v. Vann
306 Neb. 91
Neb.2020Background
- Officer found brass knuckles in Abdul Vann’s pocket; State charged him with possession of a deadly weapon by a prohibited person and carrying a concealed weapon.
- State introduced Exhibit 7: certified Douglas County court records showing Vann pleaded guilty to possession of cocaine in 1992 and appeared with counsel at sentencing; the record was silent about counsel at the time of plea.
- Defense counsel did not object when Exhibit 7 was admitted at trial; after the State rested, Vann moved to dismiss arguing Exhibit 7 was insufficient under State v. Portsche; the court denied the motion.
- Vann then presented evidence; after conviction by jury on both counts, he renewed the insufficiency motion, which was denied; he was sentenced and appealed.
- Primary legal questions on appeal: (1) whether Vann waived his challenge to denial of the motion to dismiss; (2) whether Exhibit 7 was admissible and whether the State must affirmatively prove counsel or waiver at the time of the prior plea; and (3) whether post-Gideon convictions are entitled to a presumption of regularity.
Issues
| Issue | State's Argument | Vann's Argument | Held |
|---|---|---|---|
| Whether Vann waived appellate review of denial of his motion to dismiss made at close of State’s case | Vann waived by putting on evidence after the court overruled his motion | Denial was error under Portsche and should be reviewable | Waiver — introducing evidence after denial forfeited appellate challenge to the trial court’s ruling (may still assert sufficiency) |
| Whether the evidence was sufficient to prove the elements of § 28‑1206 (possession + prior felony) | Only statutory elements must be proved; Exhibit 7 plus possession evidence sufficed when viewed for the prosecution | Exhibit 7 was inadequate because it did not affirmatively show Vann had or waived counsel at plea (per Portsche) | Sufficiency affirmed — statute requires possession and a prior felony; a court need not treat presence/waiver of counsel as an additional element |
| Whether post‑Gideon prior convictions are entitled to presumption of regularity and whether Exhibit 7 was admissible without proof of counsel/waiver at the plea | Post‑Gideon convictions are presumptively regular; once State proves existence of conviction, burden shifts to defendant to show lack of counsel/waiver; Exhibit 7 admissible absent defendant proof to the contrary | Portsche/Smith line prohibits presuming counsel/waiver from a silent record; prior convictions silent on counsel should be excluded | Overruled prior Nebraska cases to extent they forbade a presumption; held post‑Gideon convictions are presumptively regular and Exhibit 7 was properly received (no plain error) |
Key Cases Cited
- State v. Portsche, 258 Neb. 926 (Neb. 2000) (addressed admissibility of prior plea records in felon‑in‑possession prosecutions)
- Burgett v. Texas, 389 U.S. 109 (U.S. 1967) (held prior convictions lacking proof of counsel/waiver could not be used against defendant)
- Parke v. Raley, 506 U.S. 20 (U.S. 1992) (recognized presumption of regularity for prior convictions in collateral‑attack context and narrowed Burgett’s scope)
- State v. Groves, 239 Neb. 660 (Neb. 1991) (applied counsel/waiver requirement to admissibility of prior convictions)
- State v. Smith, 213 Neb. 446 (Neb. 1983) (early Nebraska adoption of Burgett principle forbidding presumption of regularity)
- State v. Briggs, 303 Neb. 352 (Neb. 2019) (defendant who continues to present evidence after an overruled dismissal/directed‑verdict motion waives appellate challenge)
- State v. Stubbendieck, 302 Neb. 702 (Neb. 2019) (articulates sufficiency‑of‑evidence standard for criminal convictions)
- U.S. v. Coppage, 772 F.3d 557 (8th Cir. 2014) (federal precedent treating post‑Gideon prior convictions as presumptively regular)