State v. HillState v. Hill
This case arises out of a traffic stop in which the appellant, William J. Hill, was pulled over for speeding and willful reckless driving. After having stopped him, the arresting officer discovered a handgun in Hill’s lap. Hill was tried in the county court for Douglas County, Nebraska, and found guilty of violating two city of Omaha ordinances (carrying a concealed weapon and unlawful carrying of weapons) and two State of Nebraska statutes (willful reckless driving and expired license plates and registration). Hill аppealed to the district court for Douglas County, which affirmed the county court’s rulings as to all charges except the unlawful carrying of weapons charge, which was ordered reversed and dismissed. On our own motion, we removed the mattеr to this court under our authority to regulate the caseloads of the Nebraska Court of Appeals and this court. We affirm in part, and in part reverse.
FACTUAL BACKGROUND
Hill was working as an armed security officer for the Outback Steakhouse in Omaha, Nebraska, on the evening of August 28,1996. Hill was required to carry a weapon as part of his employment. Hill provides security while the business is open and stays on the premises after the restaurant closes until all employees and patrons have left. It wаs uncontested at trial that Hill had complied with all city of Omaha and State of Nebraska requirements to purchase and possess a handgun. Hill testified that he carried his weapon with him in his car only when traveling to or from work.
Hill was at approximately 11th and Leavenworth Streets when Officer Irene Cornett оf the Omaha Police Division, who was stopped in an alley waiting to come out onto Leavenworth Street, watched him drive past her at a speed she approximated to be around 80 miles per hour. Cornett followed Hill’s car, аttempting to catch up to it, but did not turn on her cruiser’s flashing lights. Cornett watched as Hill’s car turned at an intersection controlled by a flashing red light, where he slowed but did not come to a complete stop, and failed to stop at a stop sign at the intersection of 7th and Pierce Streets.
Cornett turned on her cruiser’s flashing lights at that time, and Hill immediately pulled over. Hill testified at trial that as Cornett approached his vehicle, he kept his hands on the steering wheel. He testified that when Cornett was approximately 4 feet from the driver’s-side door of the car, he stated, “Officer, I have a loaded gun in the car,” to which Cornett replied, “I know. I can see it.” Hill further testified that the gun was between his right thigh and the padded seat but that the windоws were down, as was the car’s convertible top.
Cornett testified that she approached the car and was standing next to the car when Hill said he had a loaded weapon. At that point, she looked down and could see the butt and the portion of the gun up to the trigger of the holstered revolver. Cornett further testified that she had asked Hill where he was going in such a hurry and that he responded that he was racing someone home. Hill denied that Cornett posed such a question, and he denied giving such a response.
Hill was charged with the following five violations in Douglas County Court: count I, carrying a concealed weapon, Omaha Mun. Code, ch. 20, § 20-192; count II, willful reckless driving,
After trial, the county court found Hill guilty of counts I, II, HI, and V. Count IV was dismissed during trial. Hill appealed to the district court, which affirmed the decision as to counts I, II, and III, but reversed and dismissed as to count V.
ASSIGNMENTS OF ERROR
Hill alleges that the trial court erred (1) in improperly construing Omaha Mun. Code § 20-192, when the arresting officer was able to see the weapon between Hill’s legs from a location outside the driver’s-side door of Hill’s automobile; and (2) in finding that Hill was operating a motor vehicle in a willful, reckless manner on the morning in question.
STANDARD OF REVIEW
In reviewing a criminal conviction, an appellate court does not resоlve conflicts in the evidence, pass on the credibility of the 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 properly аdmitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.
State
v.
Becerra,
ANALYSIS
Carrying Concealed Weapon
Hill’s first assigned error revolves around his conviction of the offense of carrying a concealed weapon in violation of Omaha Mun. Code § 20-192. The elements of such
the above named defendant, on or about the 29th day of August, 1996, at or near PARK WILD & PINE ST, within the corporate limits of the City of Omaha, did purposely or knowingly carry a weapon concealed оn or about his/her person, contrary to the City Ordinance of the City of Omaha and against the peace and dignity of the State of Nebraska.
The State contends that we should apply the “ordinance rule” to assess the sufficiency of the evidence in the present case. Under this rule, where an appellant assigns as error the insufficiency of the evidence to sustain a conviction under a municipal ordinance, an appellate court will not take judiciаl notice of a municipal ordinance not in the record, but, instead, assumes that a valid ordinance exists and that the evidence sustains the findings of the trial court. See,
State
v.
Buescher,
Recently, in
State
v.
Bush, ante
p. 260,
when considering an assignment of error claiming that evidence is insufficient tо support a criminal conviction for violation of a municipal ordinance, or that the sentence imposed upon such conviction is excessive, an appellate court will take judicial notice of the ordinanсe creating the offense and specifying the penalties for violation if it is included in the certified transcript prepared by the clerk of the county court.
Id.
at 266,
Here, the ordinances used to charge Hill do not appear in eithеr the transcript or the bill of exceptions. However, the transcript certified by the clerk of the county court does contain a copy of the long-form complaint containing the charges against Hill. In the absence of any showing to the contrary, we assume that the material allegations in the complaint reflect the substantive content of the ordinances which Hill was charged with violating, and we therefore review the evidence to determine its sufficiency to prove the matters alleged beyond a reasonable doubt.
The undisputed evidence is that Cornett, while standing outside of Hill’s car, could see the butt and up to the hammer of Hill’s holstered pistol that was partially underneath his right thigh. The question for this сourt is whether Hill did purposely and knowingly carry a weapon concealed on his person.
This court previously defined what it means for a weapon to be concealed in violation of the law in terms of
Willful Reckless Driving
Hill assigns as error that the trial court found him guilty of willful reckless driving despite the facts that no persons or propеrty were around for him to endanger and that a guilty verdict based upon speed alone cannot stand. Hill is correct that “evidence of speed alone is not sufficient to sustain [a] conviction [for the offense of willful reckless driving].” Seе
State v. DiLorenzo,
Most important for our discussion here, however, is that Cornett testified the streets were narrow, with cars parked on both sides, such that Hill’s speed would put property at risk. Furthermore, Hill’s speed was merely one piеce of evidence tending to prove his disregard for the safety of other people and property on the night in question. As pointed out in Hill’s brief, Hill was not even charged with a speed violation in this case. The fact that he was not, and was instead charged with willful reckless driving, conforms directly with our holding in
State
v.
Howard, supra.
The fact that Hill drove through both a stop sign and a flashing red light without coming to a complete stop is sufficient evidence of his disregard for other persons and property to sustain a conviction under
Regardless of the sufficiency of the evidence, we are mindful that
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 properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.
State
v.
Howard,
The State has raised the issue that the county court’s sentence for this violation did not conform to the dictates of the statute; however, such claim was not assigned as error in the district court and will not be addressed by this court.
CONCLUSION
We hold that as a matter of law, the trial court clearly erred in finding that Hill knowingly concealed a weapon, and we therefore reverse that portion of the district court’s order which affirmed the county court’s conviction of Hill under Omaha Mun. Code § 20-192. We affirm the district court’s order as it relates to all other charges for which Hill was found guilty in the county court.
Affirmed in part, and in part reversed.