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09/18/2020 01:08 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.