State v. Ferrin

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/05/2020 01:07 AM CDT
- 762 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
State of Nebraska, appellee, v.
Benjamin L. Ferrin, appellant.
___ N.W.2d ___
Filed May 8, 2020. No. S-19-594.
1. Criminal Law: Courts: Judgments: 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 examina-
tion of the record for error or abuse of discretion. Both the district court
and a higher appellate court generally review appeals from the county
court for error appearing on the record. 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.
2. Statutes. Statutory interpretation presents a question of law.
3. Evidence: Records: Appeal and Error. A bill of exceptions is the
only vehicle for bringing evidence before an appellate court, and evi-
dence which is not made a part of the bill of exceptions may not be
considered.
4. Records: Appeal and Error. As a general proposition, it is incumbent
upon the appellant to present a record supporting the errors assigned;
absent such a record, an appellate court will affirm the lower court’s
decision regarding those errors.
5. Trial: Pretrial Procedure: Pleadings: Evidence: Juries: Appeal and
Error. A motion in limine is a procedural step to prevent prejudicial
evidence from reaching the jury. It is not the office of a motion in limine
to obtain a final ruling upon the ultimate admissibility of the evidence.
Therefore, when a court overrules a motion in limine to exclude evi-
dence, the movant must object when the particular evidence is offered
at trial in order to predicate error before an appellate court.
6. Pretrial Procedure: Pleadings: Appeal and Error. An appellant who
has assigned only that the trial court erred in denying a motion in limine
has not triggered appellate review of the evidentiary ruling at trial.
- 763 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
7. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A
defendant who moves for dismissal or a directed verdict at the close of
the evidence in the State’s case in chief in a criminal prosecution and
who, when the court overrules the dismissal or directed verdict motion,
proceeds with trial and introduces evidence, waives the appellate right
to challenge correctness in the trial court’s overruling the motion for
dismissal or a directed verdict but may still challenge the sufficiency of
the evidence.
8. Convictions: Evidence: Appeal and Error. When reviewing a crimi-
nal 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 ratio-
nal trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. An appellate court does not resolve con-
flicts in the evidence, pass on credibility of witnesses, or reweigh the
evidence; such matters are for the finder of fact.
9. Criminal Law: Statutes. To determine the elements of a crime, courts
look to the text of the statute.
10. ____: ____. Penal statutes are considered in the context of the object
sought to be accomplished, the evils and mischiefs sought to be rem-
edied, and the purpose sought to be served.
11. ____: ____. Effect must be given, if possible, to all parts of a penal
statute; no sentence, clause, or word should be rejected as meaningless
or superfluous if it can be avoided.
12. Statutes. In the absence of anything indicating otherwise, statutory lan-
guage is to be given its plain and ordinary meaning.
13. Criminal Law: Police Officers and Sheriffs: Judges: Proof: Intent.
To show a violation of Neb. Rev. Stat. § 28-906(1) (Reissue 2016),
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 interfer-
ence, or obstacle.
14. Criminal Law: Police Officers and Sheriffs: Intent. Neb. Rev. Stat.
§ 28-906(1) (Reissue 2016) does not proscribe all conduct that intention-
ally obstructs, impairs, or hinders officers who are acting under color
of their authority to either enforce the penal law or preserve the peace.
Instead, it proscribes only conduct that involves using or threatening to
use “violence, force, physical interference, or obstacle.”
- 764 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
15. Police Officers and Sheriffs: Convictions: Evidence. Evidence show-
ing a defendant resisted handcuffing, struggled with an officer, and
continued to resist restraint is alone sufficient to sustain a conviction for
obstructing a peace officer under Neb. Rev. Stat. § 28-906(1) (Reissue
2016).
16. Criminal Law: Police Officers and Sheriffs. The act of running away
from police interposes a physical obstacle that can obstruct, impair, or
hinder an officer’s efforts to preserve the peace under Neb. Rev. Stat.
§ 28-906(1) (Reissue 2016).
17. Criminal Law: Police Officers and Sheriffs: Judges: Intent. The
proper inquiry under Neb. Rev. Stat. § 28-906(1) (Reissue 2016) 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 obsta-
cle 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.
18. Police Officers and Sheriffs: Investigative Stops: Motor Vehicles.
Officers making a traffic stop may order the driver and passengers to get
out of the vehicle pending completion of the stop.
19. Police Officers and Sheriffs: Investigative Stops: Motor Vehicles:
Evidence. Evidence that a defendant repeatedly refused to comply with
police orders to exit a vehicle during a traffic stop is sufficient to show
the use of either “physical interference” or “obstacle” under Neb. Rev.
Stat. § 28-906(1) (Reissue 2016).
Appeal from the District Court for Sarpy County, George
A. Thompson, Judge, on appeal thereto from the County Court
for Sarpy County, Robert C. Wester, Judge. Judgment of
District Court affirmed.
John H. Sohl for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
The district court for Sarpy County affirmed Benjamin L.
Ferrin’s conviction and sentence for the misdemeanor offense
- 765 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
of obstructing a peace officer under Neb. Rev. Stat. § 28-906
(Reissue 2016), which provides in relevant part:
A person commits the offense of obstructing a peace
officer, when, by using or threatening to use violence,
force, physical interference, or obstacle, he or she inten-
tionally obstructs, impairs, or hinders (a) the enforce-
ment 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 assisting a
peace officer acting pursuant to the peace officer’s offi-
cial authority.
The primary question on appeal is whether the evidence in
this case was sufficient to support Ferrin’s conviction. Finding
it was, we affirm.
I. BACKGROUND
On February 11, 2018, at 1:54 p.m., two Bellevue, Nebraska,
police officers were dispatched to a domestic disturbance call.
When they arrived, they spoke with M.H., who had called
police for assistance. M.H. told police she and her husband,
Ferrin, were having marital difficulties, and she reported
he had locked her out of their residence. M.H. spoke with
police outside the residence, and the conversation was video
recorded.
M.H. told police she had spoken with Ferrin by telephone
earlier that day and was concerned about his state of mind,
explaining “he just appeared to have snapped.” M.H. reported
that Ferrin had been verbally and physically abusive in the
past, and she told the officers Ferrin had sexually assaulted her
about 3 weeks earlier. M.H. told the officers that Ferrin owned
several guns and that he had been suicidal months before. She
warned officers that Ferrin may be uncooperative if they tried
to talk with him.
1. Traffic Stop
While police were interviewing M.H. outside her residence,
Ferrin drove past in his pickup truck. One of the officers got
- 766 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
into his cruiser and followed Ferrin’s truck, activating his over-
head lights. The officer testified that the purpose of the traffic
stop was twofold: to investigate a possible crime against M.H.
and to check on Ferrin’s well-being.
Ferrin pulled his truck to the side of the road and stopped.
The first officer parked his cruiser behind Ferrin’s truck and
waited for the second officer to arrive and provide backup.
According to the first officer, he did not want to contact Ferrin
without backup, because he was concerned about Ferrin’s state
of mind and the possibility there were guns in his truck.
The second officer arrived at the traffic stop shortly there-
after, and the officers positioned themselves near the first offi-
cer’s cruiser and directed Ferrin to exit his pickup truck and
walk back to them. Ferrin, whose window was rolled down,
replied that he could not hear the officers. Using the public
address system in one of the cruisers, the officers again asked
Ferrin to open his pickup door, exit the pickup, and walk back
to where the officers were positioned. Ferrin responded, “‘No,
thank you.’”
At that point, the officers considered it a “high-risk” traffic
stop and drew their firearms. They again asked Ferrin to step
out of his truck and walk back to them. Ferrin responded that
he did not want to leave his truck, because he had a dog inside.
The officers suggested Ferrin roll up the window so that the
dog could not get out, and they again directed him to exit the
truck and walk back to them. Again Ferrin refused to comply.
The officers informed Ferrin that if he did not comply with
their request to get out of his truck, he could be charged with a
crime. Ferrin asked why he had been stopped, and the officers
told him they were “investigating a domestic incident.” Ferrin
replied that the officers had no reason to stop him, and he
remained inside the truck. The officers again instructed Ferrin
to get out of the truck and walk back to them so that they could
talk with him. Ferrin remained in the truck. The video shows
that the officers made approximately eight requests for Ferrin
to step out of the truck and that he complied with none.
- 767 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
After approximately 3 to 5 minutes of this back-and-forth
communication, the officers advised Ferrin he was under arrest
for obstructing a peace officer. Ferrin responded, “‘Fuck off.’”
He remained in his truck for a few more seconds, then opened
the door and got out. When the officers instructed Ferrin where
to put his hands, he again responded, “‘Fuck off.’” The officers
then instructed Ferrin to lift his shirt so that they could see his
waistband and to walk toward them until he was told to stop.
Ferrin complied with these requests. The officers then directed
Ferrin to get down on his knees. Ferrin initially refused that
request, but complied after further direction. At that point,
Ferrin was handcuffed, searched, and placed in the cruiser. The
entire stop and arrest was video recorded.
2. Criminal Proceedings
On March 7, 2018, the State filed a criminal complaint in
Sarpy County Court charging Ferrin with obstructing a peace
officer, in violation of § 28-906. Ferrin entered a plea of
not guilty.
(a) Motion to Suppress
Ferrin filed a motion to suppress, contending the traffic stop
and subsequent arrest were not supported by probable cause.
A suppression hearing was held, but that hearing was not
included in the record on appeal. In a written order, the county
court overruled the suppression motion in all respects. The
matter was set for a jury trial.
(b) Motion in Limine
Before trial, Ferrin filed a motion in limine seeking to
preclude the State from referring to, or offering evidence of,
M.H.’s statements to police before the traffic stop. Ferrin
argued that M.H.’s statements had no relevance to the charged
offense and would serve only to prejudice the jury. The State
responded that M.H.’s statements, which included allegations
of criminal conduct by Ferrin, formed the basis for the traffic
stop and were inextricably intertwined with evidence of the
- 768 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
obstruction crime with which Ferrin had been charged. The
court denied Ferrin’s motion in limine, but indicated it would
give a limiting instruction to the jury regarding the proper use
of M.H.’s statements.
(c) Jury Trial
At trial, both officers testified to the facts summarized
above. A video recording of the traffic stop, including M.H.’s
statements to the officers prior to the stop, was offered and
received over Ferrin’s relevancy and hearsay objections. The
court gave the jury a limiting instruction essentially admonish-
ing them to consider M.H.’s statements only for the purpose of
determining whether police were conducting a criminal inves-
tigation or preserving the peace. Similar admonishments were
repeated several times during the trial and were included in the
written jury instructions.
At the close of the State’s case in chief, Ferrin moved for
directed verdict, arguing the State had failed to prove the
material elements of the charged offense. Summarized, Ferrin
argued the evidence was insufficient as a matter of law to
prove a violation of § 28-906(1), because it showed merely
that he refused to cooperate with police. The court overruled
Ferrin’s motion, after which he testified in his own defense.
At the close of all the evidence, Ferrin renewed his motion
for a directed verdict without additional argument. The court
summarily overruled the motion and submitted the case to the
jury. The jury returned a guilty verdict, and the court sentenced
Ferrin to 7 days in the county jail, 1 month of probation, and a
$50 fine. Ferrin timely appealed his conviction and sentence to
the district court, sitting as an appellate court.
3. Appeal to District Court
Ferrin assigned four errors before the district court: (1)
There was insufficient evidence to convict him, (2) the county
court erred by overruling his motion to suppress, (3) the county
court erred by admitting evidence that had a prejudicial impact
on the jury, and (4) the sentence imposed was excessive.
- 769 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
The district court rejected all four assignments of error and
affirmed the trial court’s judgment. Ferrin timely appealed, and
we moved the case to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
On appeal to this court, Ferrin assigns, restated and reor-
dered, that the district court erred in affirming the judgment of
the county court, because the county court erred in (1) overrul-
ing his motion to suppress, (2) overruling his motion in limine,
and (3) overruling his motions for directed verdict, because
there was insufficient evidence to prove the material elements
of the crime.
III. 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 Both the district court and a higher
appellate court generally review appeals from the county court
for error appearing on the record. 2 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
[2] Statutory interpretation presents a question of law. 4
IV. ANALYSIS
1. Motion to Suppress
Ferrin’s first assignment of error challenges the overruling
of his motion to suppress, but the bill of exceptions in this case
does not contain the suppression hearing.
1
State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019).
2
Id.
3
Id.
4
State v. Brye, 304 Neb. 498, 935 N.W.2d 438 (2019).
- 770 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
[3,4] A bill of exceptions is the only vehicle for bringing
evidence before an appellate court, and evidence which is
not made a part of the bill of exceptions may not be con-
sidered. 5 As a general proposition, it is incumbent upon the
appellant to present a record supporting the errors assigned;
absent such a record, an appellate court will affirm the lower
court’s decision regarding those errors. 6 Because our record
does not include the suppression hearing, we do not consider
Ferrin’s assignment of error regarding the ruling on his motion
to suppress.
2. Motion in Limine
[5] Ferrin’s second assignment of error challenges the
overruling of his motion in limine, which sought to preclude
admission of M.H.’s video-recorded statements to police. We
have repeatedly held that a motion in limine is a procedural
step to prevent prejudicial evidence from reaching the jury. 7 It
is not the office of a motion in limine to obtain a final ruling
upon the ultimate admissibility of the evidence. 8 Therefore,
when a court overrules a motion in limine to exclude evi-
dence, the movant must object when the particular evidence
is offered at trial in order to predicate error before an appel-
late court. 9
Ferrin’s brief notes that he objected at trial when the video
recording of M.H.’s statements was offered, but he has not
assigned error to the ruling during trial. To be considered by
an appellate court, an alleged error must be both specifically
5
Bohling v. Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020).
6
D.I. v. Gibson, 295 Neb. 903, 890 N.W.2d 506 (2017).
7
Pantano v. American Blue Ribbon Holdings, 303 Neb. 156, 927 N.W.2d
357 (2019); Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015);
State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
8
Pantano, supra note 7.
9
Id.
- 771 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
assigned and specifically argued in the brief of the party assert-
ing the error. 10
[6] An appellant who has assigned only that the trial
court erred in denying a motion in limine has not triggered
appellate review of the evidentiary ruling at trial. 11 Because
Ferrin’s second assignment of error challenges only the rul-
ing on the motion in limine, it presents nothing for appellate
review.
3. Motions for Directed Verdict/
Sufficiency of Evidence
Ferrin’s third assignment of error challenges the overruling
of his motions for directed verdict made at the close of the
State’s case and renewed at the conclusion of all the evidence.
Both motions asserted the evidence was insufficient to prove
the material elements of the charged offense.
[7] A defendant who moves for dismissal or a directed ver-
dict at the close of the evidence in the State’s case in chief
in a criminal prosecution and who, when the court overrules
the dismissal or directed verdict motion, proceeds with trial
and introduces evidence, waives the appellate right to chal-
lenge correctness in the trial court’s overruling the motion for
dismissal or a directed verdict but may still challenge the suf-
ficiency of the evidence. 12 We therefore consider Ferrin’s third
assignment of error as one challenging the sufficiency of the
evidence to prove the offense of obstructing a peace officer.
[8] 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
10
State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
11
See Pantano, supra note 7.
12
State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
- 772 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
a reasonable doubt. 13 An appellate court does not resolve
conflicts in the evidence, pass on credibility of witnesses, or
reweigh the evidence; such matters are for the finder of fact. 14
(a) Obstructing Peace Officer
[9-12] We begin by identifying the material elements the
State must prove to show a violation of § 28-906(1). To
determine the elements of a crime, we look to the text of the
statute. 15 And when analyzing the text of a criminal statute,
we follow settled principles of statutory construction. Penal
statutes are considered 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. 16 Effect must be given,
if possible, to all parts of a penal statute; no sentence, clause,
or word should be rejected as meaningless or superfluous if it
can be avoided. 17 And in the absence of anything indicating
otherwise, statutory language is to be given its plain and ordi-
nary meaning. 18
[13] Under the plain language of the statute, 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 author-
ity 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.
On appeal, Ferrin does not argue there was insufficient
evidence to establish the first two of these elements. Rather,
13
State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).
14
Id.
15
State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019).
16
Id.
17
Id.
18
State v. Stanko, 304 Neb. 675, 936 N.W.2d 353 (2019).
- 773 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
his insufficiency argument is focused on the third element,
which addresses the proscribed conduct. We limit our analysis
accordingly.
(i) Proscribed Conduct
[14] Section 28-906(1) does not proscribe all conduct that
intentionally obstructs, impairs, or hinders officers who are
acting under color of their authority to either enforce the
penal law or preserve the peace. Instead, it proscribes only
conduct that involves using or threatening to use “violence,
force, physical interference, or obstacle.” We have rejected
the suggestion that these statutory terms are unconstitutionally
vague, finding instead that they are commonly used words
and are understandable by those of ordinary intelligence. 19
[15] We have consistently recognized that evidence show-
ing a defendant resisted handcuffing, struggled with an officer,
and continued to resist restraint is alone sufficient to sustain a
conviction for obstructing a peace officer. 20 But here, the State
generally concedes that Ferrin’s conduct during the traffic
stop did not involve using or threatening to use either violence
or force. We agree, and we confine our analysis to whether the
record contains sufficient evidence that Ferrin used or threat-
ened to use either “physical interference” or “obstacle” within
the meaning of § 28-906(1). Nebraska’s appellate courts have
considered these terms in several cases.
This court first considered the meaning of the phrase
“physical interference, or obstacle” as used in § 28-906(1)
in the 1987 case In re Interest of Richter. 21 In that case,
two uniformed officers responded to a domestic disturbance
call requesting police assistance in removing a disruptive
youth from a home. When officers arrived, the youth was
19
State v. Lynch, 223 Neb. 849, 394 N.W.2d 651 (1986).
20
State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001); Lynch, supra
note 19.
21
In re Interest of Richter, 226 Neb. 874, 415 N.W.2d 476 (1987).
- 774 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
arguing, cursing, and yelling, and officers told him he would
be taken to a youth shelter for the evening. While officers
were escorting the youth for transport, he ran away. They
pursued him on foot and eventually located him an hour later,
at which point he tried to run from the officers a second time.
Based on these events, the State alleged the youth was within
the jurisdiction of the juvenile court because he committed
an act which would constitute a violation of § 28-906(1). 22
In response, the youth argued that to prove a violation
of § 28-906(1), the State had to show he used or threat-
ened to use “some physical means to thwart the officers” 23
that involved more than simply running away from police.
We disagreed.
[16] We gave § 28-906(1) its plain and ordinary meaning,
and reasoned that even if the word “physical” modified both
“interference” and “obstacle,” the act of running away from
police interposed a physical obstacle that obstructed, impaired,
or hindered the officers’ efforts to preserve the peace. 24
Ten years later, we decided State v. Yeutter. 25 In that case,
city police discovered Edwin Yeutter’s dog running at large in
violation of a city ordinance, and an officer went to Yeutter’s
home to issue a citation. Yeutter refused to provide his iden-
tifying information, and the officer could not complete the
citation. When Yeutter was told that if he did not cooperate,
he would be arrested for obstructing an officer, he held out
his arms and said, “‘[G]o ahead and take me.’” 26 The ­officer
22
See, generally, Neb. Rev. Stat. § 43-247(1) (Reissue 2016).
23
In re Interest of Richter, supra note 21, 226 Neb. at 876, 415 N.W.2d at
478.
24
In re Interest of Richter, supra note 21. Accord U.S. v. Sledge, 460 F.3d
963 (8th Cir. 2006) (under Nebraska law, mere act of running away from
law enforcement officers constitutes physical interference or obstacle
within meaning of § 28-906(1)).
25
State v. Yeutter, 252 Neb. 857, 566 N.W.2d 387 (1997).
26
Id. at 859, 566 N.W.2d at 390.
- 775 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
instructed him to put his hands on a nearby car, Yeutter
refused, and a physical struggle ensued. During the struggle,
Yeutter grabbed the officer’s baton, grabbed the officer’s
handcuffs, bit the officer’s finger, and generally resisted being
taken into custody and placed in the police cruiser.
Yeutter was convicted for assaulting an officer, resisting
arrest, and obstructing a peace officer. The Nebraska Court
of Appeals, in a memorandum opinion filed on December
18, 1996, in case No. A-96-255, reversed the conviction for
obstructing a peace officer and otherwise affirmed. We granted
Yeutter’s petition for further review to determine just one
question: whether he was entitled to a jury instruction on
self-defense.
But before we addressed that question, we described
Yeutter’s arrest for obstructing a peace officer as “an illegal
arrest,” 27 noting that at the time the officer attempted to place
him under arrest for obstruction, Yeutter had not “used or
threatened to use violence or force or physically interfered with
the officer.” 28 We then went on to state that “the mere verbal
refusal to provide information to an officer does not constitute
an obstacle to the enforcement of the penal laws as contem-
plated by § 28-906. There must be some sort of physical act in
order for a violation of this statute to occur.” 29 These proposi-
tions of law, while dicta, have been cited by both the Nebraska
Court of Appeals and the U.S. District Court for the District of
Nebraska. 30 We therefore conclude it is necessary to revisit our
statements in Yeutter to ensure they comport with the statutory
language of § 28-906(1).
27
Id. at 861, 566 N.W.2d at 391.
28
Id.
29
Id. at 862, 566 N.W.2d at 391.
30
See, Deezia v. City of Lincoln, 350 F. Supp. 3d 868 (D. Neb. 2018); State
v. Ellingson, 13 Neb. Ct. App. 931, 703 N.W.2d 273 (2005); State v. Owen, 7
Neb. Ct. App. 153, 580 N.W.2d 566 (1998).
- 776 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
The plain language of § 28-906(1) makes it a crime not just
to use violence, force, physical interference, or obstacle, but
also to threaten to do so. Consequently, while Yeutter correctly
observed that “the mere verbal refusal to provide information
to an officer does not constitute an obstacle to the enforce-
ment of the penal laws as contemplated by § 28-906,” 31 our
opinion was imprecise when it went on to state that “some sort
of physical act” 32 is always required. Because threats can be
expressed verbally as well as through gestures and physical
acts, 33 our language in Yeutter was too restrictive, and it failed
to give effect to all of the statutory language the Legislature
included in § 28-906(1).
[17] We now clarify that the proper inquiry under § 28-906(1)
is not whether a defendant has engaged in “some sort of physi-
cal 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.
(ii) Sufficient Evidence of
Proscribed Conduct
Ferrin argues the evidence at trial was insufficient to
show he used or threatened to use physical interference or
obstruction. He describes his conduct as “merely refus[ing]
to come back and talk to the officers” 34 when requested to
do so, and he equates such conduct with “the mere verbal
refusal to provide information to an officer,” which we stated
31
Yeutter, supra note 25, 252 Neb. at 862, 566 N.W.2d at 391.
32
Id.
33
See Owen, supra note 30 (holding no clear error in jury instruction stating
“obstacle” under § 28-906(1) could be either verbal or physical).
34
Brief for appellant at 19.
- 777 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
in Yeutter was insufficient to constitute an “obstacle” under
§ 28-906.
The State argues Yeutter is inapplicable because Ferrin’s
conduct involved more than just a mere verbal refusal to
provide information. The State generally describes Ferrin’s
conduct as a series of defiant refusals to exit his vehicle
that presented an obstacle to the officers’ investigation under
§ 28-906(1).
[18,19] It is well settled that officers making a traffic stop
may order the driver and passengers to get out of the vehicle
pending completion of the stop. 35 Here, when officers ordered
Ferrin to get out of the truck, he repeatedly refused to comply
and instead defiantly remained inside the truck. This conduct
did not involve using violence or force. However, a reason-
able jury could find that evidence that a defendant repeatedly
refused to comply with police orders to exit a vehicle during
a traffic stop is sufficient to show the use of either “physical
interference” or “obstacle” under § 28-906(1).
The terms “interference” and “obstacle” have similar mean-
ings. Used in its common and ordinary sense, the word “inter-
ference” means “[t]he action or fact of interfering or inter-
meddling (with a person, etc., or in some action).” 36 Similarly,
“obstacle” means “[s]omething that stands in the way or
that obstructs progress (literal and figurative); a hindrance,
impediment, or obstruction.” 37 Given the commonly under-
stood meaning of these terms, a reasonable fact finder could
conclude that Ferrin’s conduct in repeatedly refusing to com-
ply with police orders to exit his truck during a traffic stop
35
See Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882, 137 L. Ed. 2d 41
(1997).
36
“Interference,” Oxford English Dictionary Online, http://www.oed.com/
view/Entry/97762 (last visited Apr. 30, 2020).
37
“Obstacle,” Oxford English Dictionary Online, http://www.oed.com/view/
Entry/129940 (last visited Apr. 30, 2020).
- 778 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
amounted to using either “physical interference, or obstacle”
under § 28-906(1). And although we are mindful that cases
from other jurisdictions apply different statutory language,
this holding is in accord with decisions from other state and
federal courts which hold that refusal to comply with an offi-
cer’s requests to exit the vehicle during a traffic stop can sup-
port an arrest or conviction for obstruction. 38
Here, the evidence showed the traffic stop was part of
an active police investigation of a reported domestic dis-
pute involving possible domestic violence and sexual assault
crimes. As part of that investigation, Ferrin was repeatedly
asked to step out of his truck so officers could question him,
and he repeatedly refused to comply with those requests,
even after being told the nature of the investigation and being
advised that he could be charged with a crime if he did not
comply. Viewed in the light most favorable to the prosecu-
tion, this evidence was sufficient for a rational trier of fact to
find that Ferrin used “physical interference, or obstacle” to
intentionally obstruct, impair, or hinder the officers in their
investigation.
38
See, e.g., Skube v. Koester, 120 F. Supp. 3d 825 (C.D. Ill. 2015) (prolonged
refusal to comply with police orders to exit vehicle can constitute crime
of obstruction); Taylor v. State, 326 Ga. App. 27, 755 S.E.2d 839 (2014)
(evidence sufficient to prove obstruction when, among other things,
defendant refused police orders to exit truck during investigation and
instead locked door); State v. Orr, 157 Idaho 206, 335 P.3d 51 (Idaho
App. 2014) (evidence sufficient to support conviction for obstruction
where suspect refused police requests to exit vehicle); People v. Synnott,
349 Ill. App. 3d 223, 811 N.E.2d 236, 284 Ill. Dec. 941 (2004) (defendant
knowingly obstructed police investigation by repeatedly refusing orders
to exit vehicle); Wilson v. Village of Los Lunas, 572 F. Appx. 635 (10th
Cir. 2014) (refusing officer’s requests to exit vehicle during traffic stop
provided probable cause to arrest for obstructing officer); United States
v. Thomas, No. 97-4827, 1998 WL 852951 (4th Cir. Dec. 10, 1998)
(unpublished disposition listed in table of “Decisions Without Published
Opinions” at 166 F.3d 336 (4th Cir. 1998)) (refusing orders to exit vehicle
constituted resisting, delaying, or obstructing officer).
- 779 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FERRIN
Cite as 305 Neb. 762
Finding sufficient evidence to support the jury’s verdict, we
reject Ferrin’s third assignment of error.
V. CONCLUSION
For the foregoing reasons, the district court correctly
affirmed the judgment of the county court, and we likewise
affirm the judgment of the district court.
Affirmed.