State v. Thelen , 305 Neb. 334 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/12/2020 01:08 AM CDT
- 334 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
State of Nebraska, appellee, v.
John E. Thelen, appellant.
___ N.W.2d ___
Filed March 20, 2020. No. S-19-604.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
5. Criminal Law: Courts: Appeal and Error. When deciding appeals
from criminal convictions in county court, an appellate court applies the
same standards of review that it applies to decide appeals from criminal
convictions in district court.
6. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: 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. 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 ele-
ments of the crime beyond a reasonable doubt.
- 335 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
7. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
8. Statutes: Legislature: Intent. In discerning the meaning of a statute,
a court must determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the statute con-
sidered in its plain, ordinary, and popular sense, as it is the court’s duty
to discover, if possible, the Legislature’s intent from the language of the
statute itself.
9. Statutes: Appeal and Error. An appellate court does not consider
a statute’s clauses and phrases as detached and isolated expressions.
Instead, the whole and every part of the statute must be considered in
fixing the meaning of any of its parts.
10. Criminal Law: Statutes. While a penal statute is to be construed
strictly, it is to be given a sensible construction in the context of the
object sought to be accomplished, the evils and mischiefs sought to be
remedied, and the purpose sought to be served.
11. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
12. Highways: Words and Phrases. A “public road” in Neb. Rev. Stat.
§ 39-301 (Reissue 2016) includes the entire area within the county’s
right-of-way.
Appeal from the District Court for Cedar County, Paul J.
Vaughan, Judge, on appeal thereto from the County Court for
Cedar County, Douglas L. Luebe, Judge. Judgment of District
Court affirmed.
Bradley C. Easland, of Egley, Fullner, Montag, Morland &
Easland, P.C., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
- 336 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
Freudenberg, J.
NATURE OF CASE
The defendant landowner appeals from criminal misde-
meanor convictions for violating Neb. Rev. Stat. § 39-301
(Reissue 2016), by repeatedly erecting an electric fence approx-
imately 3 feet from the edge of a county gravel roadway and
within the county’s right-of-way that extends into the ditch.
The central question is whether a county’s right-of-way extend-
ing into a ditch along a county roadway is a “public road” for
purposes of § 39-301.
BACKGROUND
In September 2016, John E. Thelen was charged with three
counts of obstructing a public road in violation of § 39-301,
based on repeated instances of erecting an electric fence within
the ditch right-of-way of Cedar County, Nebraska (County),
alongside a county road. Count I alleged that Thelen obstructed
a public road on August 31, count II alleged that he obstructed
a public road on September 6, and count III alleged that Thelen
obstructed a public road on September 13. The pertinent lan-
guage of § 39-301 provides, “Any person who . . . obstructs a
public road . . . by encroaching upon the same with any fence
. . . shall, upon conviction thereof, be guilty of a Class V mis-
demeanor . . . .” The complaint alleged that the County had
incurred a total cost of approximately $400 in removing the
obstructions.
A bench trial was held on stipulated evidence. The evidence
was undisputed that the Cedar County Board of Commissioners
(Board) had established pursuant to Neb. Rev. Stat. § 39-1702
(Reissue 2016) that the County’s public roads’ rights-of-way
are 66 feet, measured from the centerline of the roadway on
each side to a 33-foot distance to the ditch on each side. It was
also undisputed that the County controls a public road running
along the south side of Thelen’s property and controls, main-
tains, and is responsible for its 66-foot right-of-way.
Both the County’s highway superintendent, Carla Schmidt,
and the chairman of the Board, David McGregor, averred that
- 337 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
since 2013, Thelen has continuously and repeatedly placed a
fence within the County’s right-of-way and has refused to vol-
untarily remove his fence after being given reasonable notice
to do so.
According to Schmidt, for purposes of moving his cattle
from one pasture to another, Thelen regularly placed his fence
in the County’s ditch right-of-way beginning in June and
removed it in October or November. Schmidt noted that the
fence had been repeatedly placed a mere 161⁄2 feet from the
roadway centerline.
McGregor averred that it was the County’s duty to keep its
public roads’ rights-of-way free of debris, crops, fences, or any
other obstructions. McGregor described that such obstructions
presented a safety issue and that the County would subject
itself to the loss of its tort liability insurance coverage if it
failed to keep its ditches free of obstructions.
Schmidt similarly averred that the fences repeatedly placed
by Thelen in the County’s right-of-way endangered the travel-
ing public and created liability for the County for the failure to
comply with its statutory duty under § 39-301 to remove road
obstacles.
According to Schmidt’s and McGregor’s affidavits, the
County gave Thelen notices in August and October 2013 to
remove his fence from the ditch right-of-way and he refused
to comply. Instead, Thelen complained that other people in the
County similarly obstructed the County’s rights-of-way. Thelen
sent a letter through his attorney requesting permission to
place his fence in the County’s right-of-way from June through
October. In the letter, attached to Schmidt’s affidavit, Thelen
asserted that if his fence is removed by the County, his cattle
would stray onto the roadway. The Board denied Thelen’s
request in October 2013.
Schmidt and McGregor both stated that, again, in March
2014, Thelen placed a newly erected fence in the right-of-way
and refused to remove it after notice was given. Schmidt’s
affidavit, as well as other exhibits entered into evidence in
- 338 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
the 2016 actions, demonstrate that in September 2014, Thelen
appeared before the Board at a regularly conducted meeting
and the Board again denied Thelen’s request for permission to
erect a fence within the County’s right-of-way.
In 2015, Thelen was found guilty of violating § 39-301
for erecting in July 2015 the same type of fence at the same
location as alleged in the 2016 criminal complaint leading to
the misdemeanor convictions presently on appeal. In its 2015
order, the county court found that the County’s ditch right-of-
way was encompassed by the term “public road.” Further, the
court explained that the law does not recognize as a defense the
fact that others are violating the same law.
Thereafter, in September 2015, according to Schmidt and
McGregor, Thelen placed his fence anew in the County’s right-
of-way. However, no additional criminal charges were filed
against Thelen by the State in 2015 regarding the fence.
Chief Deputy Sheriff Chad Claussen averred that in 2016,
he investigated the scene on July 18 and 21 and ascertained
that Thelen had again erected an electric fence along the
county road and in the County’s right-of-way, which Thelen
had previously been advised not to do. The fence was located
approximately 16 to 31 feet from the centerline. The County
gave notice to Thelen on July 26, directing him to remove
the fence.
Claussen averred that on August 31, 2016, he again investi-
gated the scene and found the fence still present. According to
a report, the fence was no longer standing but was lying in the
ditch right-of-way. Claussen seized as evidence approximately
1,500 feet of electric fence wire, 50 posts, and 68 electric fence
insulators belonging to Thelen.
During the seizure, Thelen approached Claussen and “com-
plained about the situation.” When Claussen suggested that
Thelen place the fence on his own property and outside of the
right-of-way, Thelen advised Claussen that a prior county com-
missioner had given him permission to erect the fence there
and that the new county commissioner, who he believed would
- 339 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
be elected in an upcoming election, would give him permission
to do so in the future.
When Claussen attempted to give Thelen a receipt for the
seized fence, however, he refused to take it, saying that “it was
not his fence.” Claussen left the receipt on a fencepost. The
Cedar County Attorney averred that on September 1, 2016,
Thelen came to his office requesting that the sheriff’s office
“return to him the fence seized” by Claussen on August 31.
Claussen averred that on September 4, 2016, he found that
Thelen had erected another fence at the same location. He
removed the fence and seized as evidence approximately 1,500
feet of single strand electric fence wire, 40 steel posts, and
40 electric fence insulators, which Claussen averred belonged
to Thelen.
On September 13, 2016, Claussen observed that yet another
fence had been erected in the same location. Claussen seized
approximately 1,500 feet of single strand electric fence wire
and an insulated gate belonging to Thelen.
According to McGregor, in July, August, and September
2016, the County received citizen complaints that Thelen was
placing his fence in the County’s ditch right-of-way, which
led to Claussen’s investigations. Schmidt summarized in her
affidavit that in the spring of 2016, Thelen placed his fence in
the County’s right-of-way. Further, from July 2016 to the date
of the affidavit, December 2016, Thelen had placed his fence
in the County’s right-of-way on three separate occasions and,
each time, the County had removed the fence. According to
Schmidt, Thelen “has indicated that he will continue to disre-
gard my notices in the future because the fine is only $25.00,
indicating cheap pasture rent.”
The stipulated exhibits also included reports by Claussen
and a deputy sheriff, describing their observations of the elec-
tric fence in the aforementioned right-of-way on August 31 and
on September 4, 6, and 13, 2016. The deputy sheriff described
that on September 4, he observed the “single strand hotwire”
fence along the road approximately 3 feet from where the
- 340 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
gravel started, with multiple cows inside the fence. The affida-
vits and reports described the removal of the fence by county
employees on September 6, as well as the removal on August
31 and September 13 of fencing that had been left lying in the
ditch right-of-way.
Thelen submitted an affidavit in which he described the inci-
dent on September 1, 2016, when he went to the Cedar County
Attorney’s office to ask that the fencing materials taken be
returned to him, because “my name was on the receipt.” Thelen
recounted that he had told both Claussen and the Cedar County
Attorney that the materials were not his. Thelen did not, how-
ever, aver that the fencing materials were not his.
Finally, an exhibit entered into evidence by stipulation
reflects $401 in labor costs by the County’s road department
for removal of fencing on August 31 and September 6, 2016,
and for picking up wire in the ditch on September 13.
In August 2017, the county court convicted Thelen of three
counts of violating § 39-301. Thelen was fined $100 for each
violation. Thelen appealed to the district court, which, on May
22, 2019, affirmed the county court’s judgment. Thelen appeals.
ASSIGNMENTS OF ERROR
Thelen assigns that the county court erred in finding him
guilty of the crimes charged because (1) there was insufficient
evidence presented to prove that he was the individual who
placed the electric fence in the ditch and (2) the placement of
an electric fence in a ditch does not violate § 39-301. Thelen
assigns that for these same reasons, the district court erred in
affirming the county court’s judgment.
STANDARD OF REVIEW
[1] In an appeal of a criminal case from the county court, the
district court acts as an intermediate court of appeals, and its
review is limited to an examination of the record for error or
abuse of discretion. 1
1
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
- 341 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
[2] Both the district court and a higher appellate court gener-
ally review appeals from the county court for error appearing
on the record. 2
[3] When reviewing a judgment for errors appearing on the
record, an appellate court’s inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. 3
[4] We independently review questions of law in appeals
from the county court. 4
[5] When deciding appeals from criminal convictions in
county court, we apply the same standards of review that
we apply to decide appeals from criminal convictions in dis-
trict court. 5
[6] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
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. 6 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. 7
[7] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 8
2
Id.
3
Id.
4
Id.
5
Id.
6
State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).
7
Id.
8
Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).
- 342 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
ANALYSIS
Thelen asserts that the County’s ditch right-of-way alongside
the county roadway does not constitute a “public road” for pur-
poses of § 39-301. He does not contest that an electric fence
is a “fence” constituting an obstruction under the statute. He
does, however, argue that the evidence was insufficient to find
that he erected the fences in question.
Is Ditch Part of Public Road
for Purposes of § 39-301?
The question of whether a ditch right-of-way is part of a
“public road” for purposes of § 39-301 is a question of statu-
tory interpretation. Statutory interpretation presents a question
of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by
the court below. 9
[8-10] In discerning the meaning of a statute, a court must
determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the stat-
ute considered in its plain, ordinary, and popular sense, as it is
the court’s duty to discover, if possible, the Legislature’s intent
from the language of the statute itself. 10 An appellate court
does not consider a statute’s clauses and phrases as detached
and isolated expressions. Instead, the whole and every part of
the statute must be considered in fixing the meaning of any of
its parts. 11 While a penal statute is to be construed strictly, it is
to be given a sensible construction in the context of the object
sought to be accomplished, the evils and mischiefs sought to be
remedied, and the purpose sought to be served. 12
Chapter 39, article 3, of the Nebraska Revised Statutes sets
forth duties, rules, and penalties related to the safety and main-
tenance of “roads” and, to a lesser extent, “highways.” Section
9
Id.
10
Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013).
11
Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014).
12
State v. Stanko, 304 Neb. 675, 936 N.W.2d 353 (2019).
- 343 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
39-301, the statute directly at issue in these appeals, provides
in relevant part:
Any person who injures or obstructs a public road
by felling a tree or trees in, upon, or across the same,
by placing or leaving any other obstruction thereon, by
encroaching upon the same with any fence, by plowing or
digging any ditch or other opening thereon, by diverting
water onto or across such road so as to saturate, wash,
or impair the maintenance, construction, or passability
of such public road, or by allowing water to accumulate
on the roadway or traveled surface of the road or who
leaves the cutting of any hedge thereupon for more than
five days shall, upon conviction thereof, be guilty of a
Class V misdemeanor and, in case of placing any obstruc-
tion on the road, be charged an additional sum of not
exceeding three dollars per day for every day he or she
allows such obstruction to remain after being ordered to
remove the same by the road overseer or other officer in
charge of road work in the area where such obstruction
is located, complaint to be made by any person feeling
aggrieved.
This section shall not apply to any person who law-
fully fells any tree for use and will immediately remove
the same out of the road nor to any person through whose
land a public road may pass who desires to drain such
land and gives due notice of such intention to the road
overseer or other officer in charge of road work nor when
damage has been caused by a mechanical malfunction of
any irrigation equipment, when a sprinkler irrigation sys-
tem had been set so that under normal weather conditions
no water would have been placed upon the right-of-way
of any road, when the county board grants permission for
the landowner to divert water from one area to another
along a county highway right-of-way, or when a munici-
pality has granted permission along or across the right-
of-way under its jurisdiction, except that if damage has
been caused by a mechanical malfunction of irrigation
- 344 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
equipment more than two times in one calendar year, the
penalty provided in this section shall apply.
(Emphasis supplied.) Neb. Rev. Stat. § 39-304 (Reissue 2016)
provides that “[a]ny person who willfully and maliciously
injures any lawful public road in this state . . . shall, for every
such offense, be guilty of a Class V misdemeanor . . . .”
Neb. Rev. Stat. § 39-310 (Reissue 2016), which refers to
depositing materials on “public road[s]” or inside the “ditches
of such road,” provides:
Any person who deposits any wood, stone, or other
kind of material on any part of any lawful public road
in this state, inside of the ditches of such road, or out-
side of the ditches but so near thereto as to cause the
banks thereof to break into the same, causes the accu-
mulation of rubbish, or causes any kind of obstruction,
shall be guilty of (1) a Class III misdemeanor for the
first offense, (2) a Class II misdemeanor for the second
offense, and (3) a Class I misdemeanor for the third or
subsequent offense.
Neb. Rev. Stat. § 39-311 (Reissue 2016) is a similar, but
more extensive, provision related to depositing materials on
“highway[s].”
On its face, § 39-301 clearly distinguishes between a “road-
way,” which is the “traveled surface of the road,” and the
“road,” which is something greater than the “roadway.” Section
39-310 clearly includes ditches as part of the “road.” Section
39-301 also makes several references to the “right-of-way,”
describing the right-of-way “of any road,” and states that a
person does not violate the statute when a sprinkler irrigation
system was set so that under normal weather conditions no
water would have been placed upon the right-of-way of any
road or by diverting water along or across a right-of-way with
permission of “the county board [or] municipality.”
Neb. Rev. Stat. § 39-101(11) (Reissue 2016) defines “[r]oad-
way” as that “portion of a highway improved, designed, or
ordinarily used for vehicular travel, exclusive of the berm
- 345 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
or shoulder.” “Shoulder,” in turn, is defined in § 39-101(12)
as that “part of the highway contiguous to the roadway and
designed for the accommodation of stopped vehicles, for emer-
gency use, and for lateral support of the base and surface
courses of the roadway.” There is no statutory definition of
a “berm.”
[11] The terms “road” and “public road” are not defined in
chapter 39, article 1, of the Nebraska Revised Statutes. But
components of a series or collection of statutes pertaining to
a certain subject matter are in pari materia and should be con-
junctively considered and construed to determine the intent of
the Legislature, so that different provisions are consistent, har-
monious, and sensible. 13 We have accordingly found it appro-
priate to consider in pari materia different articles in the same
chapter, when they concern related matters. 14
“Road” is defined in Neb. Rev. Stat. § 39-1302(32) (Reissue
2016), in chapter 39, article 13, relating to the state highway
system, and expressly includes “the entire area within the
right-of-way”: “Road shall mean a public way for the purposes
of vehicular travel, including the entire area within the right-
of-way. A road designated as part of the state highway system
may be called a highway, while a road in an urban area may be
called a street.”
This definition of “road” as including the entire area within
the right-of-way is consistent with numerous other statutes
in chapter 39. Section 39-1702(2) provides that the right-of-
way for “[c]ounty road purposes” “shall be of such width as
is deemed necessary by the county board,” and it specifically
13
Pittman v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487
(2012). See, also, Farmers Co-op v. State, 296 Neb. 347, 893 N.W.2d
728 (2017), modified on denial of rehearing 297 Neb. 132, 898 N.W.2d
674; Fontenelle Equip. v. Pattlen Enters., 262 Neb. 129, 629 N.W.2d 534
(2001).
14
See, Cookson v. Ramge, 299 Neb. 128, 907 N.W.2d 296 (2018); In re
Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944);
Greb v. Hansen, 123 Neb. 426, 243 N.W. 278 (1932); Brown Real Estate
Co. v. Lancaster County, 108 Neb. 514, 188 N.W. 247 (1922).
- 346 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
described the “right-of-way for such roads,” providing in rel-
evant part:
County road purposes, as referred to in subsection (1) of
this section, shall include provisions for, but shall not be
limited to, the following: (a) The establishment, construc-
tion, reconstruction, relocation, improvement, or main-
tenance of any county road. The right-of-way for such
roads shall be of such width as is deemed necessary by
the county board . . . .
(Emphasis supplied.)
A “highway” under chapter 39 is just one form of a “road,”
and it is also consistently described as including the right-
of-way. “Highway” is defined by § 39-101(3) as “the entire
width between the boundary limits of any street, road, avenue,
boulevard, or way which is publicly maintained when any part
thereof is open to the use of the public for purposes of vehicu-
lar travel.” (Emphasis supplied.) Section 39-1302(22), which
contains extensive provisions relating to the creation and main-
tenance of the state highway system, similarly defines “[h]igh-
way” as “a road or street, including the entire area within the
right-of-way, which has been designated a part of the state
highway system.” (Emphasis supplied.)
“State highway system” is defined in § 39-1302(37) as
the roads, streets, and highways shown on the map pro-
vided for in section 39-1311 as forming a group of
highway transportation lines for which the [Nebraska
Department of Transportation] shall be the primary
authority. The state highway system shall include, but not
be limited to, rights-of-way, connecting links, drainage
facilities, and the bridges, appurtenances, easements, and
structures used in conjunction with such roads, streets,
and highways.
(Emphasis supplied.) In § 39-1302(31), “[r]ight-of-way
shall mean land, property, or interest therein, usually in a
strip, acquired for or devoted to a road, street, or highway.”
(Emphasis supplied.)
- 347 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
The “entire area” within the right-of-way is similarly
included in the definitions in § 39-1302 of “[h]ighway” and
“[s]treet” for purposes of cities of the metropolitan class.
Under Neb. Rev. Stat. § 14-384(7) (Reissue 2012), pertaining
to “highways” and “streets” in cities of the metropolitan class,
“[h]ighway shall mean a road or street including the entire area
within the right-of-way which has been designated a part of the
State Highway System by appropriate authority,” and under
§ 14-384(9), “[s]treet shall mean a public way for the purpose
of vehicular and pedestrian travel in the city and shall include
the entire area within the right-of-way.” (Emphasis supplied.)
Under Neb. Rev. Stat. § 39-1309(3) (Reissue 2016), “high-
ways” that are not part of the state highway system are part
of the “county road system,” with title “to the right-of-way of
such roads” vesting with the county:
Any highways not designated as a part of the state high-
way system as provided by sections 39-1301 to 39-1362
and 39-1393 shall be a part of the county road system,
and the title to the right-of-way of such roads shall vest in
the counties in which the roads are located.
(Emphasis supplied.)
The statutes pertaining to the county road system do not oth-
erwise elaborate on county rights-of-way. Pertaining to the state
highway system, however, Neb. Rev. Stat. § 39-1359 (Reissue
2016) describes rights-of-way acquired by the Department of
Transportation as “inviolate for state highway and departmen-
tal purposes” and, with limited statutory exceptions or unless
with written consent of the Department of Transportation,
prohibits any “physical or functional encroachments, struc-
tures, or uses” within the right-of-way limits. Neb. Rev. Stat.
§ 39-1360 (Reissue 2016) provides that “[n]o person may
use the drainage facilities of a highway for private purposes
without first obtaining the written consent of the [Department
of Transportation].”
[12] All these provisions in chapter 39 illustrate that a
“road” includes the right-of-way, which cannot be obstructed
- 348 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
without express permission. Consistent with § 39-1302(32)
and numerous other statutes in chapter 39, we hold that a
“public road” in § 39-301 includes the entire area within the
county’s right-of-way. The object sought to be accomplished
by § 39-301 is the maintenance for the public safety of the
“road,” the boundaries of which are designated by the county
through its acquisition of the right-of-way. Thus, the area
of the ditch here at issue, which was within the county’s
right-of-way, was part of the “public road” for purposes of
§ 39-301.
Did Thelen Erect the Fences?
Having determined that the area in question was a “public
road,” we address Thelen’s contention that there was insuf-
ficient evidence for the trier of fact to conclude that he was
responsible for erecting the fences obstructing the public road.
In an appeal of a criminal case from the county court, the
district court acts as an intermediate court of appeals, and its
review is limited to an examination of the record for error or
abuse of discretion. 15 Both the district court and a higher appel-
late court generally review appeals from the county court for
error appearing on the record. 16 When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. 17 When deciding appeals from criminal convic-
tions in county court, we apply the same standards of review
that we apply to decide appeals from criminal convictions in
district court. 18
In reviewing a criminal conviction for a sufficiency of the
evidence claim, whether the evidence is direct, circumstantial,
15
State v. McCave, supra note 1.
16
Id.
17
Id.
18
Id.
- 349 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
or a combination thereof, the standard is the same: An appel-
late 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. 19 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. 20
The evidence was sufficient to support the county court’s
finding that Thelen erected the fences or left them lying in
the ditch right-of-way. The right-of-way in question adjoined
Thelen’s land, and Thelen repeatedly described that he used
a fence there for his cattle. At least twice, Thelen expressly
sought permission to erect a fence on the land in question.
He was convicted of violating § 39-301 for erecting a fence
on the same land the year prior to the violations at issue
in this appeal. He indicated to Schmidt that he intended to
keep erecting a fence there. Thelen asked for the return of
fencing materials confiscated from the ditch right-of-way by
law enforcement.
This evidence might be considered circumstantial evidence,
which, without going directly to prove the existence of a fact,
gives rise to a logical inference that such fact exists. 21 As
Thelen points out, there is no evidence that anyone observed
Thelen erect the fence, nor is there a clear direct admission
by Thelen. But a fact proved by circumstantial evidence is
nonetheless a proven fact. 22 Circumstantial evidence is not
inherently less probative than direct evidence. 23 We find the
evidence sufficient to support the convictions in the criminal
case of three counts of violating § 39-301.
19
State v. McCurdy, supra note 6.
20
Id.
21
See State v. Mowry, 245 Neb. 213, 512 N.W.2d 140 (1994).
22
State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).
23
Id.
- 350 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. THELEN
Cite as 305 Neb. 334
CONCLUSION
For the foregoing reasons, we affirm the decision of the
district court affirming the judgment and convictions of the
county court.
Affirmed.