28-1202. Minor or prohibited person; carrying concealed weapon; penalty.
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/ne/chapter-28/28-1202A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(1)A minor or a prohibited person shall not carry a weapon or weapons concealed on or about his or her person, such as a handgun, a knife, brass or iron knuckles, or any other deadly weapon.
(2)A violation of this section is a Class I misdemeanor for a first offense and a Class IV felony for a second or subsequent offense.
A weapon is concealed on or about the person if it is concealed in such proximity to the passenger of a motor vehicle as to be convenient of access and within immediate physical reach. State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021).
Constructive possession does not establish the elements of this section of "carry[ing] a concealed weapon 'on or about his or her person.'" State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021).
Evidence that a machete was "tucked down by the center console" area of a vehicle and that an officer did not see it when he looked in the vehicle was sufficient to support a conviction for carrying a concealed weapon. State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021).
Given the amendment to this section and the amendment to the term "knife" as defined in section 28-1201(5), any knife with a blade over 3 1/2 inches in length is a deadly weapon per se, and the manner or intended use of such deadly weapon is not an element of the crime charged. State v. Nguyen, 293 Neb. 493, 881 N.W.2d 566 (2016).
In order to be a deadly weapon per se under subsection
(1)of this section, the weapon must be one specifically enumerated in the statute. Whether an object or weapon not specifically named in the statute is a deadly weapon is a question of fact to be determined by the trier of fact, and the resolution of that fact question will depend on the evidence adduced as to the use or intended use of the object or weapon. State v. Williams, 218 Neb. 57, 352 N.W.2d 576 (1984).
Whether an object or weapon not specifically enumerated in subsection
(1)of this section was a deadly weapon is a question of fact to be decided by the trier of fact. State v. Kanger, 215 Neb. 128, 337 N.W.2d 422 (1983).
Section 28-1202(1), R.S.Supp.,1978, combined with the definition of "deadly weapon" found in section 28-109, R.S.Supp.,1978, is sufficiently definite to meet the requirements of the First and Fifth Amendments to the U.S. Constitution and Art. I, section 3, of the Constitution of Nebraska. State v. Valencia, 205 Neb. 719, 290 N.W.2d 181 (1980).
When a person is charged with violation of this section, the State need not prove that a revolver or gun is operable in order to establish that it is a "firearm". The test is whether evidence of possession of a revolver or gun of prohibited description, which is in apparently good condition and has the characteristics and appearance commonly understood to be those of the firearm it purports to be, is prima facie evidence sufficient to go to the trier of fact in a prosecution for carrying a concealed weapon. In re Interest of Cory P., 7 Neb. App. 397, 584 N.W.2d 820 (1998).
Any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles is per se a deadly weapon under this section. State v. Lewis, 6 Neb. App. 867, 577 N.W.2d 774 (1998).