State v. Gomez , 305 Neb. 222 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/13/2020 08:06 AM CDT
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. GOMEZ
    Cite as 
    305 Neb. 222
    State of Nebraska, appellee, v.
    Domingo Gomez III, appellant.
    ___ N.W.2d ___
    Filed March 6, 2020.    No. S-19-369.
    1. Convictions: Evidence: Appeal and Error. When reviewing a criminal
    conviction for sufficiency of the evidence to sustain the conviction, the
    relevant question for an appellate court 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.
    2. Criminal Law: Statutes: Legislature. In Nebraska, all crimes are statu-
    tory and no act is criminal unless the Legislature has in express terms
    declared it to be so.
    Appeal from the District Court for Scotts Bluff County, Leo
    P. Dobrovolny, Judge, on appeal thereto from the County
    Court for Scotts Bluff County, James M. Worden, Judge.
    Judgment of District Court affirmed.
    Darin J. Knepper, Deputy Scotts Bluff County Public
    Defender, for appellant.
    Douglas J. Peterson, Attorney General, and Matthew Lewis
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Papik, J.
    Domingo Gomez III challenges his conviction for violat-
    ing a domestic abuse protection order. He contends that his
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    STATE v. GOMEZ
    Cite as 
    305 Neb. 222
    conviction must be reversed because the service return the
    State introduced at trial did not specifically state that Gomez
    was served with the protection order he allegedly violated.
    We affirm his conviction. While the State was required to
    show that Gomez was personally served with the protec-
    tion order, we find there was sufficient evidence of per-
    sonal service.
    BACKGROUND
    County Court Bench Trial.
    The State charged Gomez in county court with violating a
    domestic abuse protection order, which generally prohibited
    him from communicating with Michaela Arellano, the mother
    of his child. Evidence introduced at the subsequent bench trial
    showed that the district court for Scotts Bluff County entered
    an ex parte domestic abuse protection order against Gomez
    on November 28, 2017. The ex parte protection order, among
    other things, prohibited Gomez from “telephoning, contacting,
    or otherwise communicating with” Arellano, except to arrange
    visitation with the parties’ minor child. Gomez was personally
    served with the ex parte protection order a few days after it
    was entered.
    After Gomez did not appear at a subsequent hearing and
    show cause why the ex parte protection order should be
    rescinded, the district court entered an order affirming the ex
    parte protection order on December 28, 2017. The order stated
    that it would remain in effect for a period of 1 year from the
    date the ex parte protection order was entered.
    Much of the evidence at trial concerned whether Gomez
    was personally served with the order affirming the ex parte
    protection order. Over Gomez’ objections, the county court
    received exhibit 3, which included a cover sheet and a serv­
    ice return, both bearing the document identification number
    “71215” and both listing Arellano and Gomez as the parties
    in the civil case that resulted in the entry of the protection
    order at issue. The cover sheet instructed the Scotts Bluff
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    STATE v. GOMEZ
    Cite as 
    305 Neb. 222
    County sheriff to “serve the following certified copies: Order
    Affirming Domestic Abuse Protection Order with Ex Parte
    Order attached.” The service return, signed by Matt Dodge,
    certified that on January 4, 2018, Gomez was served with
    “Doc. No. 71215 a Cover Sheet with attachments” by personal
    service. The service return indicated that service was com-
    pleted at “the hospital.”
    The county court also received exhibit 4 over Gomez’ objec-
    tions. Exhibit 4 contained a certified copy of the cover sheet
    described above, the order affirming the ex parte protection
    order, and the ex parte protection order.
    The State also called Dodge to testify. Dodge, a deputy
    sheriff with the Scotts Bluff County sheriff’s office, testified
    that he had previously served Gomez with legal papers. He
    recalled that after unsuccessful attempts to contact Gomez at
    his home, he met Gomez at a local hospital and “gave him
    the papers.” Dodge testified that he signed the service return
    in exhibit 3. He also testified that he did not serve Gomez
    with just the cover sheet, but that he served Gomez with the
    attachments to the cover sheet reflected in exhibit 4—the order
    affirming the ex parte protection order and the ex parte protec-
    tion order.
    Arellano also testified at trial regarding calls Gomez made
    to her in February 2018. She testified that these calls were not
    for the purpose of arranging visitation with their child.
    At the conclusion of evidence in the bench trial, counsel for
    Gomez argued that Gomez could not be convicted, because the
    service return did not specifically state that Gomez had been
    served with the order affirming the ex parte protection order.
    The county court found Gomez guilty and sentenced him
    accordingly. It explained on the record that in its view, the
    State demonstrated beyond a reasonable doubt that Gomez was
    served with the order affirming the ex parte protection order
    and that he subsequently contacted Arellano for purposes unre-
    lated to child visitation in violation of that order.
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    Appeal to District Court.
    Gomez appealed his conviction to the district court. He con-
    tended that there was insufficient evidence that he was person-
    ally served with the protection order.
    The district court affirmed his conviction. It observed that
    Gomez had not identified any law requiring that the return of
    service specifically identify each document that was served and
    concluded that there was sufficient evidence that Gomez was
    personally served with the protection order.
    ASSIGNMENT OF ERROR
    Gomez assigns one error on appeal. He contends, rephrased,
    that the district court erred by finding there was sufficient evi-
    dence that he was personally served with the order affirming
    the ex parte protection order.
    STANDARD OF REVIEW
    [1] When reviewing a criminal conviction for sufficiency of
    the evidence to sustain the conviction, the relevant question
    for an appellate court 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. State v. Stubbendieck, 
    302 Neb. 702
    , 
    924 N.W.2d 711
    (2019).
    ANALYSIS
    Gomez argues that his conviction must be overturned because
    the State introduced insufficient evidence that he was served
    with the order affirming the ex parte protection order. Gomez’
    argument rests on two propositions: (1) that personal service
    of the protection order is an essential element of the crime of
    which he was convicted and (2) that the record contains insuf-
    ficient evidence of such personal service. As we will explain,
    we generally agree with Gomez on the former proposition but
    disagree on the latter.
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    Elements of Offense.
    Gomez was charged with and convicted of violating Neb.
    Rev. Stat. § 42-924(4) (Cum. Supp. 2018). That subsection
    provides as follows:
    Any person who knowingly violates a protection order
    issued pursuant to this section or section 42-931 after
    service or notice as described in subsection (2) of section
    42-926 shall be guilty of 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.
    [2] In Nebraska, all crimes are statutory, and no act is crimi-
    nal unless the Legislature has in express terms declared it to
    be so. State v. Mann, 
    302 Neb. 804
    , 
    925 N.W.2d 324
    (2019).
    Accordingly, to determine the elements of a crime, we look to
    the text of the operative statute. 
    Id. Section 42-924(4)
    makes
    the knowing violation of certain protection orders a crime. By
    its terms, the statute requires proof of the following: (1) service
    or notice as described in Neb. Rev. Stat. § 42-926(2) (Reissue
    2016) and (2) a subsequent knowing violation of a qualifying
    protection order. Because the crime can be established with
    proof of either service or the notice described in § 42-926(2),
    it is not technically accurate to describe service alone as an
    essential element of the crime. We do read the statute, however,
    to make either service or the notice described in § 42-926(2) an
    essential element.
    This reading of § 42-924(4) is consistent with our decision
    in State v. Graff, 
    282 Neb. 746
    , 
    810 N.W.2d 140
    (2011). In
    Graff, we interpreted substantively similar language in a statute
    governing harassment protection orders to allow for a crimi-
    nal conviction upon a showing that a defendant knowingly
    violated a protection order after service. See Neb. Rev. Stat.
    § 28-311.09(4) (Reissue 2008).
    We also concluded in Graff that personal service was
    required because the statute governing service of harassment
    protection orders required it. See § 28-311.09(9)(a). Similar
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    language requires personal service of domestic abuse protec-
    tion orders. See § 42-926(1). Following our reasoning in Graff,
    we conclude that in cases alleging a violation of § 42-924(4),
    in which the defendant does not receive the notice described
    in § 42-926(2), the State must demonstrate that the defendant
    was personally served with the protection order.
    Sufficiency of Evidence
    of Personal Service.
    While we agree with Gomez that the State was required
    to demonstrate that he was personally served with the order
    affirming the ex parte protection order, we cannot agree that
    there was insufficient evidence of such service.
    According to Gomez, the only way the State could dem-
    onstrate the requisite personal service was through a service
    return. He also contends that in the service return, the officer
    must specifically certify that he or she served the protection
    order. He asserts that the service return offered into evidence
    by the State is deficient in this respect because it refers gener-
    ally to a cover sheet with attachments rather than to a protec-
    tion order.
    In support of his argument that the State must prove
    serv­ice in this particular way, Gomez relies on language in
    § 42-926(1) providing that once a domestic abuse protection
    order is issued, the clerk of the court is to give it to the sher-
    iff’s office and that upon receipt, the sheriff’s office “shall
    forthwith serve the protection order upon the respondent and
    file its return thereon with the clerk of the court which issued
    the protection order within fourteen days of the issuance of
    the protection order.” Because the service return here does
    not refer specifically to service of a protection order, Gomez
    claims that the sheriff’s office did not “file its return thereon,”
    as provided in § 42-926.
    Gomez’ reliance on the provisions in § 42-926 regard-
    ing the return of service is misplaced. As discussed above,
    § 42-924(4) allows a defendant to be convicted if he or she
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    STATE v. GOMEZ
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    knowingly violates a domestic abuse protection order after
    service of the protection order. Gomez is essentially asking us
    to make punctilious compliance with the service return provi-
    sions of § 42-926(1) an essential element of the crime defined
    in § 42-924(4). But because § 42-924(4) says nothing about
    the return of service, such an interpretation would run counter
    to our practice of strictly construing penal statutes and not
    supplying missing words or sentences to make clear that which
    is indefinite, or to supply that which is not there. See State v.
    Duncan, 
    294 Neb. 162
    , 
    882 N.W.2d 650
    (2016).
    We note that it is far from anomalous to permit a party to
    prove service of civil process even if the process server fails
    to comply with statutory direction regarding the service return.
    Both a Nebraska civil procedure statute and the Federal Rules
    of Civil Procedure provide that the failure to make proof of
    service or delay in doing so does not affect the validity of the
    service. See, Neb. Rev. Stat. § 25-507.01 (Reissue 2016); Fed.
    R. Civ. P. 4(l)(3). Such provisions “prevent[] a defendant who
    has been properly served from attacking the validity of service
    on the technical ground of the process server’s failure to make
    return in timely fashion, or because the return is deficient in
    some way.” 4B Charles Alan Wright et al., Federal Practice
    and Procedure § 1130 at 210-11 (4th ed. 2015). The fact that
    § 42-924(4) allows a defendant to be convicted of violating a
    domestic abuse protection order upon a showing of service,
    as opposed to proper return of service, serves the same func-
    tion here.
    This leaves only the question of whether there was suffi-
    cient evidence that Gomez was served with the order affirm-
    ing the ex parte protection order. On this question, we do not
    hesitate to find that there was. The face of the cover sheet
    indicates that the sheriff’s office was instructed to serve the
    order affirming the ex parte protection order and the ex parte
    protection order. Dodge testified that he met Gomez at a local
    hospital and that he provided Gomez with the attachments
    to the cover sheet in exhibit 4, i.e., the order affirming the
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    STATE v. GOMEZ
    Cite as 
    305 Neb. 222
    ex parte protection order and the ex parte protection order.
    Dodge also testified that he signed the service return indicat-
    ing he served the cover sheet and attachments on Gomez at a
    hospital on January 4, 2018. Viewing this evidence in the light
    most favorable to the prosecution, a rational trier of fact could
    find beyond a reasonable doubt that Gomez was served with
    the order affirming the ex parte protection order.
    CONCLUSION
    Finding no merit in the sole assignment of error, we affirm.
    Affirmed.
    Freudenberg, J., not participating.