State v. Cervantes , 306 Neb. 740 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    09/04/2020 09:09 AM CDT
    - 740 -
    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. CERVANTES
    Cite as 
    306 Neb. 740
    State of Nebraska, appellee,
    v. Nicole Cervantes,
    appellant.
    ___ N.W.2d ___
    Filed August 7, 2020.    No. S-19-1169.
    1. Trial: Convictions: Appeal and Error. An appellate court will sustain
    a conviction in a bench trial of a criminal case if the properly admitted
    evidence, viewed and construed most favorably to the State, is sufficient
    to support that conviction.
    2. Evidence: Appeal and Error. An appellate court does not resolve
    conflicts in the evidence, pass on the credibility of witnesses, evaluate
    explanations, or reweigh the evidence presented, which are within a fact
    finder’s province for disposition.
    3. Trial: Convictions: Evidence. In connection with a conviction in a
    bench trial, the relevant question is whether, after viewing the evidence
    in the light most favorable to the prosecution, any rational trier of fact
    could have found the essential elements of the crime beyond a reason-
    able doubt.
    Appeal from the District Court for Dawson County: James
    E. Doyle IV, Judge. Affirmed.
    Claude E. Berreckman, Jr., and Claire K. Bazata, of
    Berreckman, Davis & Bazata, P.C., for appellant.
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. CERVANTES
    Cite as 
    306 Neb. 740
    Miller-Lerman, J.
    I. NATURE OF CASE
    Law enforcement officers returning property to the appel-
    lant, Nicole Cervantes, approached her home and were greeted
    by her husband, Casey Cervantes (Casey), against whom
    Cervantes had a protection order. Upon hearing the officers,
    Cervantes fled through a window because she was “scared
    [she] was going to get in trouble.” Law enforcement pursued
    Cervantes and found her about a block away. Following a
    bench trial in the district court for Dawson County, Cervantes
    was convicted of obstructing a peace officer. Cervantes appeals
    and claims that the evidence was insufficient to support her
    conviction. We affirm.
    II. STATEMENT OF FACTS
    Following an incident on September 26, 2018, at Cervantes’
    home in Cozad, Nebraska, the State charged her with aiding
    and abetting the violation of a protection order, a Class IV
    felony in violation of 
    Neb. Rev. Stat. § 42-924
     (Reissue 2016),
    and with obstructing a peace officer, a Class I misdemeanor
    in violation of 
    Neb. Rev. Stat. § 28-906
    (1) (Reissue 2016). A
    bench trial was held on June 4, 2019.
    At trial, Sgt. John Peden and Officer Garrett McArdle of the
    Cozad Police Department testified that they were on duty when
    they arrived at Cervantes’ home in Cozad to return a backpack
    they had collected during a prior unrelated arrest. Peden knew
    that the residence was the home of Cervantes and intended to
    return the backpack to her. Both officers were dressed in uni-
    form and displayed their badges.
    McArdle testified that when they approached the entrance,
    the main door was open and the officers could see through
    the screen door. The officers knocked, and Casey answered
    the door, holding a tape measure in his hands. Peden observed
    Cervantes’ daughter and another woman at the home.
    The officers knew that Cervantes had an active protection
    order against Casey which prohibited contact between Casey
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. CERVANTES
    Cite as 
    306 Neb. 740
    and Cervantes, and upon seeing Casey in the home, Peden
    believed that Casey was violating the order. He did not know
    whether Cervantes was in the home. Peden briefly observed
    an unknown person exiting the living room toward the south
    side of the home. He heard a door slam in the direction that
    this person had fled. The three people Peden had originally
    observed at the home were still visible when he heard the door
    slam, which led him to believe there had been a fourth person
    in the home. McArdle testified that he did not observe anyone
    else in the home other than Cervantes’ daughter and that he did
    not hear sounds or noises that suggested somebody else was
    present. McArdle testified that he confirmed through dispatch
    that a protection order remained active against Casey, and the
    officers then handcuffed Casey.
    Cervantes’ daughter told McArdle no one else was in the
    home and gave consent for him to search the home. As
    McArdle took a few steps into the home, someone driving a
    vehicle pulled up and reported that a woman had jumped out
    the window of the home and run south. McArdle ran out of
    the house and found Cervantes walking in an alley about a
    block away. McArdle handcuffed her and took her back to the
    residence. McArdle acknowledged that Cervantes stopped and
    cooperated when apprehended, aside from “pull[ing] away a
    little bit” when she was handcuffed. Cervantes answered his
    questions and did not take action to prevent McArdle and
    Peden from arresting Casey.
    McArdle spoke with Cervantes, and she admitted that she
    had been in the home when Casey greeted the officers at the
    door. Both officers testified that Cervantes admitted being in
    the home and leaving to avoid getting in trouble. On cross-
    examination, Peden acknowledged that Cervantes told officers
    that she had asked Casey to leave the home. Peden indicated
    that he did not believe her; he did not observe anything to
    indicate that Casey was not welcome at the home or that any-
    one there was trying to remove him. Peden was not aware that
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. CERVANTES
    Cite as 
    306 Neb. 740
    Cervantes had a prior arrest for aiding and abetting Casey’s
    prior violation of a protection order.
    Cervantes testified in her own behalf. She stated that Casey
    is her husband and that she obtained the protection order due
    to his actions resulting from a mental health issue. Cervantes
    initially sought the protection order because Casey would not
    take medication for his mental health issue and was becoming
    violent. The couple had separated a short time before she got
    the protection order and had not since resumed living together.
    She moved from her previous home to get away from him.
    However, Cervantes testified that she understood “there was a
    30-day restraining order,” but that she later learned that it was
    for 1 year.
    Cervantes testified that she previously pled guilty to aiding
    and abetting the violation of the same protection order. With
    respect to the prior incident, according to Cervantes, Casey
    entered her car without permission and law enforcement pulled
    her over and arrested her.
    On the day of the incident leading to the charges filed in
    this case, Cervantes denied inviting or allowing Casey into
    the home. She testified that she had been sleeping in her bed-
    room when he entered. She stated that she “told him to leave
    my house or I was going to call the cops, and he said he had
    my phone and nobody was going to call them.” According to
    Cervantes, Casey was in the home for a half hour during which
    Cervantes repeatedly told him to leave.
    Cervantes admitted that when she heard law enforcement at
    her front door on September 26, 2018, she left the home. She
    was surprised that Casey would answer the front door and talk
    to police officers. Cervantes fled from the house through the
    bathroom window because she was scared that she would “get
    in trouble for something I didn’t do” and would be arrested
    again. Cervantes acknowledged on cross-examination that the
    bathroom in the home was being remodeled that day and that
    Casey, who is a carpenter, answered the door with a tape meas­
    ure in his hand.
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. CERVANTES
    Cite as 
    306 Neb. 740
    The district court acquitted Cervantes of the felony charge
    of aiding and abetting a violation of a protection order.
    However, with regard to the charge for obstructing a police
    officer, the court found Cervantes guilty beyond a reason-
    able doubt. The court stated that fleeing law enforcement was
    obstruction of a peace officer under the law and that “the
    more logical, rational, and careful thing” for Cervantes to
    have done would have been to call out to the police officers
    and ask for their help once they were in the home. The court
    said that Cervantes knew the officers were there, but instead
    of asking them for help, she “fled the scene, and [was] found
    a block away.”
    On December 4, 2019, the district court sentenced Cervantes
    to a term of 6 days’ imprisonment, with credit for 6 days already
    served, and a term of probation for a period of 12 months.
    Cervantes appeals.
    III. ASSIGNMENT OF ERROR
    On appeal, Cervantes claims, restated, that the district court
    erred because it convicted her without sufficient evidence that
    she obstructed a peace officer.
    IV. STANDARDS OF REVIEW
    [1-3] An appellate court will sustain a conviction in a
    bench trial of a criminal case if the properly admitted evi-
    dence, viewed and construed most favorably to the State, is
    sufficient to support that conviction. State v. Montoya, 
    304 Neb. 96
    , 
    933 N.W.2d 558
     (2019). In making this determina-
    tion, an appellate court does not resolve conflicts in the evi-
    dence, pass on the credibility of witnesses, evaluate explana-
    tions, or reweigh the evidence presented, which are within a
    fact finder’s province for disposition. 
    Id.
     Instead, the relevant
    question is whether, after viewing the evidence in the light
    most favorable to the prosecution, any rational trier of fact
    could have found the essential elements of the crime beyond
    a reasonable doubt. 
    Id.
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. CERVANTES
    Cite as 
    306 Neb. 740
    V. ANALYSIS
    1. Applicable Law
    We begin by setting forth the applicable statutes and legal
    principles relevant to our analysis. The obstructing a peace
    officer statute, § 28-906, provides in relevant part:
    (1) A person commits the offense of obstructing a
    peace officer, when, by using or threatening to use vio-
    lence, force, physical interference, or obstacle, he or
    she intentionally obstructs, impairs, or hinders (a) the
    enforcement of the penal law or the preservation of the
    peace by a peace officer or judge acting under color of
    his or her official authority or (b) a police animal assist-
    ing a peace officer acting pursuant to the peace officer’s
    official authority.
    ....
    (3) Obstructing a peace officer is a Class I misdemeanor.
    To show a violation of § 28-906(1), the State must prove
    that (1) the defendant intentionally obstructed, impaired, or
    hindered either a peace officer, a judge, or a police animal
    assisting a peace officer; (2) at the time the defendant did so,
    the peace officer or judge was acting under color of his or
    her official authority to enforce the penal law or preserve the
    peace; and (3) the defendant did so by using or threatening to
    use either violence, force, physical interference, or obstacle.
    State v. Ferrin, 
    305 Neb. 762
    , 
    942 N.W.2d 404
     (2020).
    We recently clarified the law under § 28-906(1) in State v.
    Ferrin, where we stated that
    the proper inquiry under § 28-906(1) is not whether a
    defendant has engaged in “some sort of physical act,” but,
    rather, whether a defendant’s conduct, however expressed,
    used or threatened to use either violence, force, physical
    interference, or obstacle to intentionally obstruct, impair,
    or hinder a peace officer or judge who was acting to
    either enforce the penal law or preserve the peace under
    color of his or her official authority.
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. CERVANTES
    Cite as 
    306 Neb. 740
    305 Neb. at 776
    , 942 N.W.2d at 415. For purposes of
    § 28-906(1), we defined the words “interference” and “obsta-
    cle” as follows:
    Used in its common and ordinary sense, the word “inter-
    ference” means “[t]he action or fact of interfering or
    intermeddling (with a person, etc., or in some action).”
    Similarly, “obstacle” means “[s]omething that stands in
    the way or that obstructs progress (literal and figurative);
    a hindrance, impediment, or obstruction.”
    State v. Ferrin, 
    305 Neb. at 777
    , 942 N.W.2d at 415.
    For completeness, we note that the district court did not
    have the benefit of our clarifications in State v. Ferrin, but the
    district court’s reliance on “flight” and other factors as bases
    for conviction in this case is not incorrect. See In re Interest of
    Richter, 
    226 Neb. 874
    , 
    415 N.W.2d 476
     (1987).
    2. Obstruction of a Peace Officer:
    Sufficiency of Evidence
    Cervantes claims that the evidence is insufficient to support
    her conviction for obstruction of a peace officer. We conclude
    that Cervantes’ assignment of error is without merit.
    (a) Cervantes’ Intentional Acts
    The first inquiry in this case under § 28-906 as explained
    in State v. Ferrin, 
    supra,
     includes an examination of whether
    the defendant’s acts which involved peace officers were inten-
    tional. There is no dispute that peace officers were involved.
    With respect to intentionality, Cervantes told police officers
    that she believed she would be “in trouble” because of Casey’s
    presence in the home contrary to a protection order. There was
    evidence that Casey had previously violated the protection
    order. Cervantes testified that she fled out of the bathroom
    window when she heard law enforcement at the home to avoid
    speaking with them. Cervantes did not want to talk to officers,
    but she knew that officers wanted to talk to her. There was
    sufficient evidence at trial to conclude Cervantes’ acts were
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. CERVANTES
    Cite as 
    306 Neb. 740
    done intentionally to obstruct, impair, or hinder Peden and
    McArdle in their enforcement efforts.
    (b) The Police Officers Were Enforcing
    Penal Law at the Time of the Incident
    The second inquiry in this case under § 28-906, as explained
    in State v. Ferrin, 
    305 Neb. 762
    , 
    942 N.W.2d 404
     (2020),
    includes an examination of whether the peace officers were
    enforcing a penal law.
    Cervantes contends that the police officers were not enforc-
    ing the penal law or preserving the peace at the time of the
    incident. We do not agree. The evidence shows that Casey
    answered the door at Cervantes’ house and that Peden testi-
    fied he knew that Cervantes had a no-contact protection order
    against Casey that was in force, violation of which is against
    the penal law. Section 42-924(4) provides that a knowing vio-
    lation of a protection order is “a Class I misdemeanor, except
    that any person convicted of violating such order who has a
    prior conviction for violating a protection order shall be guilty
    of a Class IV felony.” Casey was subject to a prior violation.
    The continued presence of law enforcement at Cervantes’ home
    was in service of the enforcement and investigation of a penal
    law, § 42-924(4). There was sufficient evidence supporting the
    district court’s conclusion that the police officers were enforc-
    ing the penal law at the time of the incident.
    (c) Cervantes’ Acts Were Used to Obstruct
    or Impair Enforcement of a Penal Law
    The third inquiry under § 28-906, as explained in State v.
    Ferrin, 
    supra,
     includes an examination of whether Cervantes’
    acts were used to obstruct or impair enforcement of a
    penal law.
    Cervantes contends that her flight from law enforcement,
    standing alone, was insufficient to satisfy the element of
    obstructing or impairing the work of a peace officer. We do not
    agree. As noted above, running away to avoid a peace officer’s
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. CERVANTES
    Cite as 
    306 Neb. 740
    acting to enforce the penal law can result in an interference or
    obstacle to the progress of that enforcement. See 
    id.
    Under the facts presented at trial, Cervantes’ flight out
    the window physically obstructed and impaired law enforce-
    ment. The evidence shows that upon observing Casey, Peden
    and McArdle remained at Cervantes’ residence so they could
    investigate the violation of a protection order. Cervantes
    was ultimately apprehended with the aid of a passer-by who
    reported that a woman had jumped out of a window and run
    away from the home. Nevertheless, the officers’ questioning of
    Cervantes in connection with their enforcement of a penal law
    was hindered or impeded by Cervantes’ intentional acts.
    VI. CONCLUSION
    The evidence received at trial, taken in the light most
    favorable to the State, was sufficient to find that Cervantes’
    intentional acts impaired peace officers’ enforcing a penal law.
    Accordingly, we affirm the judgment and sentence of the dis-
    trict court.
    Affirmed.
    

Document Info

Docket Number: S-19-1169

Citation Numbers: 306 Neb. 740

Filed Date: 8/7/2020

Precedential Status: Precedential

Modified Date: 9/4/2020