State v. Armagost ( 2014 )

Decisions of the Nebraska Court of Appeals
STATE v. ARMAGOST 513
Cite as 22 Neb. Ct. App. 513
State of Nebraska, appellee, v.
Jacob D. Armagost, appellant.
___ N.W.2d ___
Filed November 4, 2014. No. A-14-058.
1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: In reviewing a
criminal conviction, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favorably to
the State, is sufficient to support the conviction.
2. Arrests: Motor Vehicles: Proof. An attempt to arrest or cite the defendant is an
essential element of the offense of fleeing in a motor vehicle to avoid arrest, but
proof that the defendant actually committed the law violation for which the arrest
or citation was attempted is not required.
3. Arrests: Motor Vehicles: Proof: Statutes. Neb. Rev. Stat. § 28-905 (Reissue
2008) has been amended to now prohibit operating a motor vehicle to avoid
arrest or citation, whereas before, it prohibited operating a motor vehicle to
avoid arrest only. Thus, based on the amendment of the statute, the State may
prove this element of the crime by evidence of an attempt to arrest or cite
the defendant.
4. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative
force as a matter of law may an appellate court set aside a guilty verdict as
unsupported by evidence beyond a reasonable doubt.
5. Jury Instructions: Proof: Appeal and Error. To establish reversible error from
a court’s refusal to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction is warranted by the evidence, and (3) the appellant was
prejudiced by the court’s refusal to give the tendered instruction.
6. Jury Instructions. In giving instructions to the jury, it is proper for the court to
describe the offense in the language of the statute.
7. Criminal Law: Jury Instructions. Jury instructions that set forth only the
statutory elements of a crime are insufficient when they do not set forth all the
essential elements of the crime.
8. Jury Instructions: Appeal and Error. A jury instruction that omits an element
of the offense from the jury’s determination is subject to harmless error review.
9. Verdicts: Appeal and Error. Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict surely would have been rendered,
but, rather, whether the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error.
Decisions of the Nebraska Court of Appeals
514 22 NEBRASKA APPELLATE REPORTS
10. Criminal Law: Judgments: Verdicts. Motions for judgment notwithstanding
the verdict are limited to civil proceedings and are unavailable under Nebraska
criminal procedure.
Appeal from the District Court for Merrick County: Michael
J. Owens, Judge. Affirmed.
Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom &
Stehlik, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Laura A. Nigro for
appellee.
Inbody, Riedmann, and Bishop, Judges.
Riedmann, Judge.
I. INTRODUCTION
Jacob D. Armagost appeals his jury conviction for operating
a motor vehicle in a willful reckless manner to avoid arrest.
Armagost assigns that the district court erred in failing to direct
a verdict, instructing the jury, finding sufficient evidence to
support his conviction, and overruling his motion for new trial
and motion for judgment notwithstanding the verdict. Finding
no merit to Armagost’s assigned errors, we affirm.
II. BACKGROUND
Armagost was charged in the district court for Merrick
County with operating a motor vehicle in a willful reckless
manner to avoid arrest. A jury trial was held, during which the
following evidence was adduced:
On June 6, 2013, Central City Police Lt. Mark Hogue was
stopped at the intersection of 10th Avenue and U.S. Highway 30
in Central City, Nebraska, when he observed a vehicle stopped
at an intersection approximately 30 feet to his left. Lieutenant
Hogue observed the driver of the vehicle for approximately
15 seconds and was “[o]ne hundred percent” certain that it
was Armagost. Lieutenant Hogue testified that he had known
Armagost for approximately 13 years and was very familiar
with him. He estimated having seen him approximately 50
times over the years, including “[a]t least a half-dozen times,
if not more,” in the same particular vehicle. Lieutenant Hogue
Decisions of the Nebraska Court of Appeals
STATE v. ARMAGOST 515
Cite as 22 Neb. Ct. App. 513
knew that the vehicle belonged to a person whom he knew to
be associated with Armagost.
Lieutenant Hogue intended to initiate a traffic stop imme-
diately, because he knew Armagost’s driver’s license was sus-
pended at that time. He testified that individuals who are found
to be driving under suspension are generally arrested and
transported to the sheriff’s office, where they are booked and
released. When Lieutenant Hogue observed the vehicle turn
west onto Highway 30, he pulled behind it and activated his
cruiser’s overhead emergency lights, which triggered its dash-
board camera to begin recording. The pursuit that followed
was captured on video and played for the jury at trial.
Armagost did not pull over in response to the attempted traf-
fic stop; rather, he executed a quick left turn onto 11th Avenue
and accelerated rapidly down a residential street. Lieutenant
Hogue immediately activated his cruiser’s siren and began pur-
suing the vehicle. There were numerous vehicles parked along
the street, and recent occupants of one vehicle had to move
quickly toward the curb to avoid being hit. Armagost continued
down 11th Avenue for approximately four blocks, traveling at
speeds up to 55 miles per hour in the 25-mile-per-hour residen-
tial zone.
Once he reached Horde Lake Road, Armagost headed east-
bound out of town at speeds over 100 miles per hour. He
proceeded around a “fairly decent sharp curve” in the road
at approximately 80 miles per hour while two vehicles were
approaching from the opposite direction. Both of those vehi-
cles moved to the shoulder to get out of the way, and a third
vehicle that was driving in front of Armagost went into the
ditch. After clearing the curve, Armagost accelerated again as
he approached a bridge. Lieutenant Hogue observed a parked
vehicle and a woman fishing from the bridge, so he sounded
his cruiser’s air horn to alert the woman to move to safety.
After crossing the bridge, the pursuit continued onto a
gravel road. Lieutenant Hogue was not able to keep up due
to the dust trail from Armagost’s vehicle ahead of him.
Lieutenant Hogue described the road as “loose gravel” and
testified that he was having a hard time keeping his vehicle on
the road at such speeds. He decided to discontinue the pursuit
Decisions of the Nebraska Court of Appeals
516 22 NEBRASKA APPELLATE REPORTS
primarily for safety reasons, but also because he had already
identified Armagost as the driver.
On cross-examination, Lieutenant Hogue testified that
Armagost was not apprehended the day of the chase. He
acknowledged that he was not able to make or attempt an
actual or constructive seizure of Armagost because he dis-
continued the pursuit. However, he later clarified that he
“attempted [to seize or detain Armagost] up to the point [he]
disengaged the pursuit.”
At the conclusion of Lieutenant Hogue’s testimony, the
State rested and Armagost moved for a directed verdict. The
motion was overruled. Armagost rested without presenting
any evidence and then moved for a directed verdict once
again at the close of all of the evidence. The motion was
again overruled.
At the jury instruction conference, Armagost offered a pro-
posed jury instruction setting forth a definition of “arrest.”
Defense counsel argued that it was important for the jury
to know the definition of arrest so that it could determine
whether the essential element of an attempt to arrest Armagost
was satisfied. The district court declined to give the proposed
instruction, indicating that such instruction could confuse the
jury, since an actual arrest was not necessary for a conviction.
Armagost also objected to instruction No. 3, which set forth the
elements of the offense, on the basis that it omitted the element
of an attempt to arrest Armagost. The district court overruled
the objection and gave the elements instruction as written,
without including the element of an attempted arrest.
The jury found Armagost guilty of operating a motor vehicle
in a willful reckless manner to avoid arrest. The district court
accepted the jury’s verdict.
Armagost timely filed a motion for new trial asserting that
the district court erred in (1) failing to grant his motions for
directed verdict, (2) declining to give his proposed jury instruc-
tion containing the definition of arrest, and (3) overruling his
objection to instruction No. 3. Armagost also filed a motion
for judgment notwithstanding the verdict on the basis that the
evidence was insufficient to sustain the jury’s verdict. The
Decisions of the Nebraska Court of Appeals
STATE v. ARMAGOST 517
Cite as 22 Neb. Ct. App. 513
district court overruled both motions. Following his sentencing,
Armagost timely appealed to this court.
III. ASSIGNMENTS OF ERROR
Armagost assigns six errors on appeal. He alleges the district
court erred in (1) failing to grant his motions for directed ver-
dict at the close of the State’s evidence and at the close of all
evidence presented in the case; (2) failing to offer his proposed
jury instruction containing the definition of arrest; (3) overrul-
ing his objection to instruction No. 3, which did not include
the essential element of an attempt to arrest; (4) accepting
the jury’s guilty verdict when the evidence was insufficient to
prove his guilt beyond a reasonable doubt; (5) failing to grant
his motion for new trial; and (6) failing to grant his motion for
judgment notwithstanding the verdict. We have consolidated
his assignments of error to four, as set forth below.
IV. ANALYSIS
1. Sufficiency of Evidence
In his first assignment of error, Armagost asserts that the
district court erred in overruling his motions for directed ver-
dict, because the evidence was insufficient to convict him.
Armagost’s fourth assignment of error similarly challenges the
sufficiency of the State’s evidence to sustain his conviction.
Because both assignments of error relate to the sufficiency of
the evidence, we will address them together.
[1] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suffi-
cient to support the conviction. State v. Collins, 281 Neb. 927,
799 N.W.2d 693 (2011).
Decisions of the Nebraska Court of Appeals
518 22 NEBRASKA APPELLATE REPORTS
Armagost makes the same three arguments in support of
both assignments of error. He argues that (a) there was no
evidence of an attempt to arrest Armagost, (b) there was
insufficient evidence to identify Armagost as the driver of the
vehicle, and (c) there was insufficient evidence of willful reck-
less operation of the vehicle. We will address each argument
in turn.
(a) Attempted Arrest
[2] A person commits the offense of operating a motor
vehicle to avoid arrest if he or she “operates any motor
vehicle to flee in such vehicle in an effort to avoid arrest or
citation.” Neb. Rev. Stat. § 28-905(1) (Reissue 2008). An
attempt to arrest or cite the defendant is an essential ele-
ment of the offense of fleeing in a motor vehicle to avoid
arrest, but proof that the defendant actually committed the
law violation for which the arrest or citation was attempted
is not required. See, id.; State v. Claussen, 276 Neb. 630, 756
N.W.2d 163 (2008).
[3] We note that § 28-905 has been amended since the
Nebraska Supreme Court held in State v. Claussen, supra, that
an attempt to arrest the defendant is an essential element of the
offense. The statute now prohibits operating a motor vehicle to
avoid arrest or citation, whereas before, it prohibited operat-
ing a motor vehicle to avoid arrest only. Compare § 28-905
(Reissue 2008) (effective July 18, 2008), with § 28-905 (Cum.
Supp. 2006). Thus, based on the amendment of the statute, we
conclude that the State may prove this element by evidence of
an attempt to arrest or cite the defendant.
Nonetheless, we find the evidence presented at trial
clearly established that Lieutenant Hogue attempted to arrest
Armagost. Lieutenant Hogue testified that he attempted to
initiate a traffic stop because he was aware that Armagost’s
driver’s license was suspended. He further testified that it
is normal protocol to arrest individuals that are found to be
driving on a suspended license. Lieutenant Hogue activated
his cruiser’s overhead emergency lights and siren to initiate
a traffic stop and then engaged in a high-speed chase in an
effort to apprehend Armagost. The fact that Lieutenant Hogue
Decisions of the Nebraska Court of Appeals
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Cite as 22 Neb. Ct. App. 513
was not able to effect an arrest of Armagost does not negate
the fact that he attempted to do so. The dashboard camera
video admitted into evidence depicts the pursuit as described
by Lieutenant Hogue. Viewing this evidence in the light most
favorable to the State, we conclude that a rational trier of fact
could reasonably conclude that Lieutenant Hogue attempted to
arrest Armagost.
Armagost argues that the evidence was insufficient to
prove that there was an attempted arrest, based on Lieutenant
Hogue’s testimony that he was never able to attempt an arrest
because he disengaged the pursuit for safety reasons. Although
Lieutenant Hogue testified that he was not able to attempt an
arrest, he later clarified that he “attempted up to the point [he]
disengaged the pursuit.” The evidence clearly shows that he
attempted to initiate a traffic stop, which is a necessary step in
attempting to make an arrest. We find that Lieutenant Hogue’s
attempt to stop the vehicle with his cruiser’s overhead emer-
gency lights and siren activated was sufficient to satisfy this
element of the offense.
(b) Identification of Armagost
Armagost argues that the evidence was insufficent to prove
that he was the driver of the vehicle, because Lieutenant
Hogue was the only person that identified him. Essentially,
Armagost argues that Lieutenant Hogue’s testimony was
not credible.
[4] It is well established that in reviewing a criminal con-
viction, an appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the
evidence, as such matters are for the finder of fact to resolve.
See State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
Only where evidence lacks sufficient probative force as a mat-
ter of law may an appellate court set aside a guilty verdict as
unsupported by evidence beyond a reasonable doubt. State v.
Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
It is apparent from the jury’s verdict that it found the tes-
timony of Lieutenant Hogue to be credible, and its determi-
nation on this issue is supported by the evidence. Lieutenant
Hogue testified that he was very familiar with Armagost and
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had known him for many years. He had seen Armagost approx-
imately 50 times over the years, as well as “[a]t least a half-
dozen times” in the same vehicle he pursued on June 6, 2013.
Lieutenant Hogue knew the vehicle belonged to a person
whom he knew to be associated with Armagost. Lieutenant
Hogue observed the driver of the vehicle for approximately
15 seconds and testified that he was “[o]ne hundred percent”
certain that it was Armagost. Viewing this evidence in the light
most favorable to the State, we find that a reasonable jury
could conclude that Armagost was driving the vehicle that fled
from Lieutenant Hogue on June 6.
(c) Willful Reckless Operation
of Vehicle
Operating a motor vehicle to avoid arrest is a Class IV
felony if it includes the willful reckless operation of the motor
vehicle. § 28-905(3)(a)(iii) (Reissue 2008). Willful reckless
driving is defined as operating a motor vehicle in such a man-
ner as to indicate a willful disregard for the safety of persons or
property. Neb. Rev. Stat. § 60-6,214 (Reissue 2010).
There is sufficient evidence in the record to support the
jury’s finding that Armagost was operating the motor vehicle
in a willful reckless manner. Lieutenant Hogue testified that
Armagost traveled up to 55 miles per hour in a 25-mile-per-
hour residential zone. Numerous vehicles were parked along
the residential street, and recent occupants of one vehicle
hurried toward the curb to get out of harm’s way. During the
pursuit, Lieutenant Hogue was traveling at approximately 80
miles per hour while traversing a sharp curve in the road and
reached over 100 miles per hour on Horde Lake Road. Despite
traveling at such high speeds, Lieutenant Hogue was not able
to catch up to Armagost.
Armagost’s actions indicated a willful disregard for the
safety of persons and property that he encountered during
the pursuit, including parked cars and individuals on the
residential street, three vehicles that moved onto the shoulder
or into the ditch on Horde Lake Road, and the woman who
was standing on the bridge fishing. Viewing this evidence
in the light most favorable to the State, any rational trier of
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Cite as 22 Neb. Ct. App. 513
fact could have found Armagost guilty of operating a motor
vehicle in a willful reckless manner to avoid arrest.
Because the evidence was sufficient to support Armagost’s
conviction, his first and fourth assignments of error have
no merit.
2. Jury Instructions
Armagost’s second and third assignments of error relate
to the jury instructions given by the district court. Armagost
asserts that the district court erred by (a) failing to tender his
proposed jury instruction regarding the definition of arrest and
(b) overruling his objection to instruction No. 3, which failed
to include an attempt to arrest as one of the essential elements
of the offense.
(a) Proposed Instruction
Armagost requested the district court to instruct the jury
on the definition of arrest so that it could determine whether
the essential element of an attempt to arrest Armagost was
satisfied. Armagost’s proposed instruction states: “An arrest
is taking custody of another person for the purpose of holding
or detaining him or her to answer to a criminal charge, and to
effect an arrest, there must be an actual or constructive seizure
or detention of the person arrested.”
[5] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. State v. Banks, 278
Neb. 342, 771 N.W.2d 75 (2009).
Although Armagost’s proposed instruction is a correct state-
ment of the law, we do not find it to be applicable here.
Armagost’s proposed instruction comes from State v. Heath, 21
Neb. Ct. App. 141, 838 N.W.2d 4 (2013), in which we set forth the
definition of arrest while analyzing the sufficiency of the evi-
dence to support a conviction for resisting arrest. Significantly,
our opinion in Heath did not address whether the jury must be
instructed on the definition of arrest.
Decisions of the Nebraska Court of Appeals
522 22 NEBRASKA APPELLATE REPORTS
We note, however, that an instruction containing the defini-
tion of arrest was given in State v. White, 209 Neb. 218, 306
N.W.2d 906 (1981), which involved a prosecution for escape
from official detention after the defendant fled from an offi-
cer as he was being placed under arrest. Unlike the present
offense, a conviction for escape requires evidence that the
defendant unlawfully removed himself from official deten-
tion or arrest. In other words, the State had to prove that the
defendant was under arrest at the time of the alleged escape in
order to obtain a conviction. Thus, an instruction on the defi-
nition of arrest and how an arrest is effected was warranted in
that case.
Here, Armagost was charged with operating a motor vehicle
in a willful reckless manner to avoid arrest. In order to be
convicted of this charge, it was not necessary for the State
to prove that an arrest had been effected. To the contrary, a
charge of operating a motor vehicle to avoid arrest necessar-
ily implies that the defendant attempted to avoid arrest. In the
present case, Armagost successfully avoided an effected arrest.
Therefore, a jury instruction defining arrest and how one is
effected was not required.
(b) Objection to Instruction No. 3
Armagost objected to instruction No. 3 on the basis that
it omitted the essential element of an attempt to arrest him.
Instruction No. 3, as given to the jury, states, in relevant part:
The material elements which the State must prove
beyond a reasonable doubt in order to convict [Armagost]
of the offense of operating a motor vehicle in a willful
reckless manner to avoid arrest are:
1. That . . . Armagost . . . operated a motor vehicle;
2. That [Armagost] fled in such vehicle in an effort to
avoid arrest or citation;
3. That [Armagost] did so in a willful reckless man-
ner; and
4. That [Armagost] did so on or about June 6, 2013, in
Merrick County, Nebraska.
A person drives in a willful reckless manner if he
or she drives any motor vehicle in such a manner as
Decisions of the Nebraska Court of Appeals
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Cite as 22 Neb. Ct. App. 513
to indicate a willful disregard for the safety of persons
or property.
[6] The Nebraska Supreme Court has held that “in giving
instructions to the jury, it is proper for the court to describe the
offense in the language of the statute.” State v. Sanders, 269
Neb. 895, 913, 697 N.W.2d 657, 672 (2005). We agree with the
State’s observation that instruction No. 3 mirrors the language
of the statute, which states: “Any person who operates any
motor vehicle to flee in such vehicle in an effort to avoid arrest
or citation commits the offense of operation of a motor vehicle
to avoid arrest.” § 28-905(1).
[7] However, “[j]ury instructions that set forth only the
statutory elements of a crime are insufficient when they do
not set forth all the essential elements of the crime.” State v.
Williams, 247 Neb. 931, 939, 531 N.W.2d 222, 229 (1995),
overruled on other grounds, State v. Burlison, 255 Neb. 190,
583 N.W.2d 31 (1998). As previously discussed, an attempt
to arrest or cite the defendant is an essential element of the
offense. See State v. Claussen, 276 Neb. 630, 756 N.W.2d
163 (2008). Thus, we conclude that because an attempt to
arrest or cite the defendant is an essential element of this
offense, the district court erred in failing to include it in
instruction No. 3.
[8,9] Our analysis, however, does not end there. A jury
instruction that omits an element of the offense does not
require automatic reversal, but, rather, it is subject to harm-
less error review. See State v. Merchant, 288 Neb. 439, 848
N.W.2d 630 (2014). Harmless error review looks to the basis
on which the trier of fact actually rested its verdict; the inquiry
is not whether in a trial that occurred without the error a guilty
verdict surely would have been rendered, but, rather, whether
the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error. Id. Where a court cannot
conclude beyond a reasonable doubt that the jury verdict
would have been the same absent the error, it should not find
the error harmless. Id.
We conclude beyond a reasonable doubt that the jury’s
guilty verdict in this case was unattributable to the omission
of this element in instruction No. 3, because the requirement
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524 22 NEBRASKA APPELLATE REPORTS
of an attempt to arrest Armagost was implicit in the instruc-
tion given. In other words, in determining that Armagost fled
in a motor vehicle in an effort to avoid arrest or citation, the
jury necessarily considered and determined that there was an
attempt to arrest or stop Armagost, because otherwise there
would be nothing from which to flee or to avoid. We find that
the jury’s verdict would have been the same if this element had
been expressly included in instruction No. 3. Thus, the instruc-
tional error was harmless beyond a reasonable doubt and does
not require reversal of Armagost’s conviction.
3. Motion for New Trial
Armagost argues that the district court erred in failing to
grant his motion for a new trial on the bases that (a) the evi-
dence was insufficient to sustain his conviction, (b) instruction
No. 3 was erroneous in that it failed to include an attempt to
arrest as an essential element of the offense, and (c) the court
failed to give his proposed jury instruction containing the
definition of arrest. Because we have already analyzed and dis-
posed of each of these issues above, we will not address them
further here. This assignment of error has no merit.
4. Motion for Judgment
Notwithstanding Verdict
[10] Armagost’s final assignment of error argues that the
district court erred in overruling his motion for judgment not-
withstanding the verdict. The Nebraska Supreme Court has
held that motions for judgment notwithstanding the verdict
are limited to civil proceedings and are unavailable under
Nebraska criminal procedure. See State v. Miller, 240 Neb.
297, 481 N.W.2d 580 (1992). Accordingly, we conclude that
the district court did not err in failing to grant such motion in
this case.
V. CONCLUSION
For the reasons set forth above, we affirm the judgment of
the district court.
Affirmed.