NE Code § 28-1205 (2021)
2021 Nebraska Revised Statutes|Chapter 28 - Crimes and Punishments|28-1205 - Use of a deadly weapon to commit a felony; possession of a deadly weapon during the commission of a felony; penalty; separate and distinct offense; proof of possession.

28-1205.  Use of a deadly weapon to commit a felony; possession of a deadly weapon during the commission of a felony; penalty; separate and distinct offense; proof of possession.(1)(a) Any person who uses a firearm, a knife, brass or iron knuckles, or any other deadly weapon to commit any felony which may be prosecuted in a court of this state commits the offense of use of a deadly weapon to commit a felony.(b) Use of a deadly weapon, other than a firearm, to commit a felony is a Class II felony.(c) Use of a deadly weapon, which is a firearm, to commit a felony is a Class IC felony.(2)(a) Any person who possesses a firearm, a knife, brass or iron knuckles, or a destructive device during the commission of any felony which may be prosecuted in a court of this state commits the offense of possession of a deadly weapon during the commission of a felony.(b) Possession of a deadly weapon, other than a firearm, during the commission of a felony is a Class III felony.(c) Possession of a deadly weapon, which is a firearm, during the commission of a felony is a Class II felony.(3) The crimes defined in this section shall be treated as separate and distinct offenses from the felony being committed, and sentences imposed under this section shall be consecutive to any other sentence imposed.(4) Possession of a deadly weapon may be proved through evidence demonstrating either actual or constructive possession of a firearm, a knife, brass or iron knuckles, or a destructive device during, immediately prior to, or immediately after the commission of a felony.(5) For purposes of this section:(a) Destructive device has the same meaning as in section 28-1213; and(b) Use of a deadly weapon includes the discharge, employment, or visible display of any part of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony or communication to another indicating the presence of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony, regardless of whether such firearm, knife, brass or iron knuckles, deadly weapon, or destructive device was discharged, actively employed, or displayed.Source   Laws 1977, LB 38, § 237;   Laws 1995, LB 371, § 8;  Laws 2009, LB63, § 14. Annotations  1. Constitutionality 2. Deadly weapon 3. Evidence 4. Generally 5. Lesser-included offense 6. Sentencing 7. To commit any felony 1. Constitutionality Prosecution for both unlawful discharge of a firearm under section 28-1212.02 and use of a deadly weapon to commit a felony under this section in a single proceeding does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997). It is an open question as to whether a defendant has a right to be told of the mandatory consecutive nature of a sentence imposed for using a firearm to commit a felony. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986). The consecutive sentence requirement of this statute is constitutional. State v. Stratton, 220 Neb. 854, 374 N.W.2d 31 (1985). 2. Deadly weapon To sustain a conviction under the use prong of this section, the State must show that the defendant actively employed a deadly weapon for the purpose of committing a felony. Mere storage of a weapon at a residence where drugs are dealt is insufficient to support a conviction for the use of a deadly weapon under this section. The term possession, as used in this section, includes only actual possession; actual possession is defined as including only those weapons on one's person or within one's immediate control, which is the area within which one might immediately gain possession of a weapon. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999). A defendant who aids and abets the use of a deadly weapon in the commission of a first degree murder by having a conversation with another individual regarding who is going to kill the particular victim, supplying the other individual with the murder weapon, unlawfully breaking and entering the victim's residence for the purpose of killing the victim, and hitting someone in the victim's residence with a piece of wood can be prosecuted and punished as if he or she was the principal offender. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998). Pursuant to subsection (1) of this section, a "deadly weapon" is any instrument which, in the manner it is used or intended to be used, is capable of producing a bodily injury involving a substantial risk of (1) death, (2) serious permanent disfigurement, or (3) protracted loss or impairment of the function of any organ or body part. The weapon need not actually produce such injuries, but need only be used in a manner which makes it capable of producing them. Under the facts of this case, a 14- by 3- by 3/4-inch wooden "spanking board" could be found to be a deadly weapon. State v. Ayres, 236 Neb. 824, 464 N.W.2d 316 (1991). A firearm does not have to be operable in order for the defendant to be guilty of use of a deadly weapon to commit a felony. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002). 3. Evidence Evidence of a defendant's fingerprints has probative value; and it is for the jury to determine, in light of all other evidence, whether such evidence permits an inference to be drawn that beyond a reasonable doubt defendant was the person who committed the offense in question. State v. Pena, 208 Neb. 250, 302 N.W.2d 735 (1981). The evidence was sufficient to support a conviction for use of a deadly weapon to commit a felony, even though a crime laboratory report indicated that the defendant's handgun was inoperable. The evidence indicated that the defendant used a weapon designed to expel a projectile, as the report stated that the handgun was a semiautomatic pistol with a matching magazine. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002). 4. Generally Malice is not an element of first degree assault, and, as such, "sudden quarrel" would not be applicable to negate it. A similar rationale applies to use of a deadly weapon to commit a felony, which does not have malice as an element. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016). The crime of using a deadly weapon to commit a felony under this section is an independent offense from the underlying felony. State v. Miller, 284 Neb. 498, 822 N.W.2d 360 (2012). A defendant must commit an underlying or predicate felony before he or she can be convicted of use of a deadly weapon to commit a felony. State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40 (2009). This statutory language expressly provides that the Legislature intended the crime of using a deadly weapon to commit a felony to remain an independent offense from the underlying felony. There can be no question that the Legislature intended that one using a deadly weapon be subjected to cumulative punishments for committing the underlying felony and for the use of the weapon to commit it. State v. Mata, 273 Neb. 474, 730 N.W.2d 396 (2007). When the felony which serves as a basis of the use of a weapon charge is an unintentional crime, the accused cannot be convicted of use of a weapon to commit a felony. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002). Pursuant to subsection (1) of this section, a defendant can be convicted of a use of a deadly weapon to commit a felony charge under an aiding and abetting theory. State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002). Where the record reflects the use of multiple weapons in the commission of a single felony, the use of each weapon may constitute a separate violation of this section. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001). This section defines a separate and distinct crime, and conviction of violation of this section is not enhancement with respect to conviction of felony in which firearm was used. State v. Dandridge, 209 Neb. 885, 312 N.W.2d 286 (1981). Pursuant to a plea agreement which was explained and was entered into knowingly, voluntarily, and intelligently, a defendant can be convicted of and sentenced to imprisonment for both an underlying charge of manslaughter, an unintentional crime, and a charge of use of a weapon to commit a felony, an intentional crime. State v. Drinkwalter, 14 Neb. App. 944, 720 N.W.2d 415 (2006). Because a reckless terroristic threat is an intentional crime, it cannot be the underlying felony for the use of a weapon charge. State v. Rye, 14 Neb. App. 133, 705 N.W.2d 236 (2005). When instructing the jury on multiple counts under this section, the trial court need not repeat the "use" instruction for each separate count charged. State v. Charles, 4 Neb. App. 211, 541 N.W.2d 69 (1995). A defendant acquitted on the underlying felony charge cannot be convicted of an offense under this section involving that felony; but a defendant convicted of the underlying felony might still be acquitted on a charge under this section. State v. Smith, 3 Neb. App. 564, 529 N.W.2d 116 (1995). A defendant cannot be convicted under this section when defendant has been acquitted of the underlying felony. State v. George, 3 Neb. App. 354, 527 N.W.2d 638 (1995). 5. Lesser-included offense Use of a firearm or other deadly weapon in the commission of a felony is not a lesser-included offense of assault in the second degree. State v. Jackson, 217 Neb. 332, 348 N.W.2d 866 (1984). 6. Sentencing Pursuant to subsection (3) of this section, two separate sentences of 15 to 20 years' imprisonment for the use of a deadly weapon in the commission of two separate first degree murders can be served consecutively to the respective murder convictions, even when one of the murder convictions is based on accomplice liability. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998). Pursuant to subsection (3) of this section, the trial court's failure to impose defendant's sentence for use of a firearm consecutively to his life imprisonment sentence is plain error. State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995). Although it is within the trial court's discretion to direct that sentences imposed for separate crimes be served consecutively, this section does not permit such discretion in sentencing. State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995). Where defendant was convicted of two separate and distinct felonies, the sentences were within statutory limits and appropriately imposed consecutively. State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993). The language of subsection (3) of this section, to the effect that sentences under its provisions must be imposed consecutively to any sentence imposed for the predicate felony, is mandatory and not within the discretion of the sentencing court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988). Although subsection (3) of this section mandates that a sentence imposed hereunder must be served consecutive to any other sentence, whether or not a defendant needs to be specifically apprised of such matter is factually dependent. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988). Failure to advise the defendant that sentence for use of a weapon to commit a felony was required to run consecutively with any other sentence imposed was not prejudicial when defendant was advised of the combined minimum sentence which he could serve. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988). Where a defendant is not informed that consecutive sentences are mandated by subsection (3) of this statute, he has been misinformed by the court, and his plea is not voluntary. State v. Golden, 226 Neb. 863, 415 N.W.2d 469 (1987). It is an open question as to whether a defendant has a right to be told of the mandatory consecutive nature of a sentence imposed for using a firearm to commit a felony. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986). When a person found guilty of a substantive crime as well as being a habitual criminal is improperly sentenced, both sentences must be set aside and the case remanded for proper sentencing. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981). Under subsection (3) of this section, only those crimes defined in this section are treated as distinct offenses from the felony committed, and only the sentences imposed under this section are required to be consecutive to any other sentence imposed. State v. Elliott, 21 Neb. App. 962, 845 N.W.2d 612 (2014). The trial court's sentencing arrangement ordering consecutive sentences for the second robbery and use of a deadly weapon convictions to be served concurrently with the first sentences for robbery and use of a deadly weapon convictions constituted plain error because it had the effect of making one of the sentences for use of a deadly weapon run concurrently with the other sentence for use of a deadly weapon. State v. Schnell, 17 Neb. App. 211, 757 N.W.2d 732 (2008). 7. To commit any felony The language "to commit any felony," as it is used in this section, is synonymous with "for the purpose of committing any felony." State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989).