State v. Gaudreault

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www.nebraska.gov/apps-courts-epub/
01/25/2022 08:07 AM CST
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. GAUDREAULT
Cite as 30 Neb. App. 501State of Nebraska, appellee, v. Aaron
Alcide Gaudreault, appellant.
___ N.W.2d ___
Filed January 18, 2022. No. A-21-222.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is
correct is a question of law, regarding which an appellate court is obli-
gated to reach a conclusion independent of the determination reached by
the trial court.
2. Criminal Law: Evidence: Appeal and Error. When examining a suffi-
ciency of the evidence claim, 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.
3. Jury Instructions: Appeal and Error. All the jury instructions must
be read together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitating
reversal.
4. ____: ____. A jury instruction which misstates the issues and has a tend­
ency to confuse the jury is erroneous.
5. Jury Instructions: Proof: Appeal and Error. In reviewing a claim of
prejudice from jury instructions given or refused, the appellant has the
burden to show that the allegedly improper instruction or the refusal to
give the requested instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
6. Jury Instructions: Appeal and Error. Jury instructions are subject
to the harmless error rule, and an erroneous jury instruction requires
reversal only if the error adversely affects the substantial rights of the
complaining party.
7. 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
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STATE v. GAUDREAULT
Cite as 30 Neb. App. 501would have been rendered, but, rather, whether the actual guilty verdict
rendered in the questioned trial was surely unattributable to the error.
8. Criminal Law: Evidence: New Trial: Appeal and Error. Upon find-
ing reversible error in a criminal trial, an appellate court must determine
whether the total evidence admitted by the district court, erroneously or
not, was sufficient to sustain a guilty verdict.
9. Evidence: New Trial: Double Jeopardy: Appeal and Error. If evi-
dence is not sufficient to sustain a verdict after an appellate court finds
reversible error, then double jeopardy forbids a remand for a new trial.
Appeal from the District Court for Dawson County: James
E. Doyle IV, Judge. Reversed and remanded for a new trial.
Brian J. Davis, of Davis Law, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Moore, Bishop, and Arterburn, Judges.
Bishop, Judge.
INTRODUCTION
Following a jury trial, Aaron Alcide Gaudreault was con-
victed of resisting arrest. The Dawson County District Court
sentenced him to 48 months’ probation. On appeal, Gaudreault
claims error regarding a supplemental instruction given to
the jury in response to its question asking for a definition of
“substantial force.” He claims that if the jury had been prop-
erly instructed, there was insufficient evidence to support his
conviction. We agree that the district court erred regarding its
supplemental jury instruction. And since we cannot conclude
the error was harmless, we reverse Gaudreault’s conviction and
remand the cause for a new trial.
BACKGROUND
On February 18, 2020, the State charged Gaudreault with
two counts: count I, resisting arrest, second offense, in viola-
tion of Neb. Rev. Stat. § 28-904 (Reissue 2016), and count II,
first degree trespass, in violation of Neb. Rev. Stat. § 28-520(Reissue 2016).
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. GAUDREAULT
Cite as 30 Neb. App. 501A jury trial on count I, resisting arrest, was held on November
17, 2020. The State called three law enforcement officers to
testify. Gaudreault did not testify in his own behalf, but did
call his mother as a witness. Additionally, a DVD containing
footage from one law enforcement officer’s body camera was
received into evidence without objection.
Officer Bradley Peltier with the Cozad Police Department
testified that on January 5, 2020, he received a call from dis-
patch in reference to an individual who was trespassing at an
apartment. He went to the apartment and had contact with the
complainant who advised that the suspect was Gaudreault,
but that Gaudreault was no longer there. Gaudreault’s vehicle
was subsequently located at his mother’s house in Cozad,
Nebraska. Officers Peltier and Thomas Twyford arrived at that
residence within 1 or 2 minutes of each other. They approached
the front door, and Officer Peltier knocked while Officer
Twyford stood a couple feet back; both were wearing their
uniforms and badges. When Gaudreault came to the door, he
was eating. Officer Peltier accused him of trespassing, which
Gaudreault denied. Officer Peltier made the decision to arrest
Gaudreault after seeing his behavior and how he was acting;
Gaudreault also told Officer Peltier to “buzz the fuck off.”
Officer Peltier told Gaudreault that he was under arrest and
that he should put down the food he was eating. Officer Peltier
grabbed Gaudreault by the wrist, but Gaudreault tried to pull
away. Officer Peltier then pulled Gaudreault onto the porch
and onto the ground.
Officer Peltier was wearing a body camera during the inter-
action, and a DVD of the footage was received into evidence
and played for the jury. While playing the DVD, the State
repeatedly paused the video in order to ask Officer Peltier
questions to describe what was happening. The State’s ques-
tions and Officer Peltier’s responses were as follows:
Q. (By [the State]) Now, Officer Peltier, this is your
body camera, so this is your view, is that correct?
A. Yes.
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Cite as 30 Neb. App. 501Q. Who is that that just came into the scene?
A. That’s Officer Twyford.
Q. Thank you.
(Video resumed.)
(Video paused.)
Q. . . . At this moment, are you attempting to place
handcuffs on Mr. Gaudreault, Officer Peltier?
A. Correct, yes.
Q. And, you know, what we can’t see is, you know,
the physical sensations that you’re experiencing. What do
you feel as you are having contact with him as you’re try-
ing to put cuffs on him?
A. He’s constantly pulling away, not allowing me to
place his hands behind his back.
Q. Did it feel like he was using much strength to pull
away?
A. I believe it was probably all of his strength to try to
pull away.
Q. And at this point, did — was substantial force
required on your part to try to get his other hand cuffed
as shown in the video?
A. Correct. The porch there was confined space, so
he kept rolling to where his arm without the cuff on was
under him and unable to be grabbed to place him in the
cuffs.
(Video resumed.)
(Video paused.)
Q. . . . So, at this time, only one hand is cuffed, is that
correct?
A. Correct, yes.
Q. So, what are you doing?
A. Moving to the bottom of the walkway there, to the
porch so that we had more room to be able to place him
in cuffs.
Q. Was there further difficulty after you got down to
that lower area?
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STATE v. GAUDREAULT
Cite as 30 Neb. App. 501A. He still pulled. He pulled and kicked the entire time.
(Video resumed.)
(Video paused.)
Q. . . . And at this point, it appears both of his hands
are cuffed now, is that correct?
A. Correct, yes.
(Video resumed.)
(End of video.)
Q. . . . Officer Peltier, when you first told Mr.
Gaudreault up [sic], you know, in the threshold there that
he was under arrest, it seems that you reached for his
arms, is that correct?
A. Correct, yes.
Q. And describe what physical sensation you felt when
you did that?
A. He pulled like he was going to run back into the
residence at that point.
Q. He pulled his arm away from you?
A. Yes, correct.
Q. And I think I already asked you this. Were you
wearing your uniform, displaying your badge?
A. Yes, I was.
Q. And at that time, were you acting under color of
your official authority as a police officer?
A. Yes.
Q. Were you focused on getting Mr. Gaudreault into
handcuffs as a part of effecting his arrest?
A. Yes.
Q. And at what point were you able to actually hand-
cuff him, both hands?
A. As soon as we got him pulled down to the bottom of
the ramp up to the front door there where we could actu-
ally roll him onto his stomach and could actually effect
the handcuffs going on both hands.
Q. Throughout that process, was he — what was he
doing with that free arm?
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STATE v. GAUDREAULT
Cite as 30 Neb. App. 501A. Curling it under his body, pulling it away, trying not
to allow us to put that free arm behind his back.
Q. And so, again, did you feel that substantial force
was required on the part of you and Officer Twyford to
overcome Mr. Gaudreault’s efforts to place handcuffs
on him?
A. Yes.
Q. When you were trying to place handcuffs on him.
At any time throughout this process, I think you may have
mentioned this earlier, but was Mr. Gaudreault hitting or
kicking at or towards you or Officer Twyford?
A. He kicked at me several times as we were taking
him from up by the front door down to the bottom of the
ramp, he was trying to kick me.
Q. Did he ever connect with you?
A. A couple times.
Q. And is it your testimony that all these events occurred
here in Dawson County on January 5th of this year?
A. Yes, sir.
Officer Peltier stated that, at the time of the interaction,
Gaudreault had “the odor of an alcoholic beverage on his per-
son[,] [a]nd, based upon prior contact with him, he appeared to
be intoxicated by something.”
On cross-examination, Officer Peltier was asked what he
meant when he said he had to use “substantial force.” He
responded that it involved the “pulling, muscling, and the wrist
lock” to get Gaudreault’s hands behind his back. When asked
what was the “physical force” that Gaudreault used against
him, Officer Peltier responded, “Oh, resisting, pulling away,
not allowing his hands to be placed behind his back to be put
in handcuffs.” Officer Peltier said he had Gaudreault’s left
wrist in a wrist lock, but Gaudreault “was curling his right
arm underneath him” so that Officer Peltier could not grab it,
and “Officer Twyford was trying to grab that arm and pull it
behind his back.” Officer Peltier was also asked about getting
Gaudreault into the police car:
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STATE v. GAUDREAULT
Cite as 30 Neb. App. 501Q. [(by defense counsel)] And the second handcuff is
put on. And does Mr. Gaudreault voluntarily stand up or
did you lift him up?
A. We lifted him up.
Q. Did he walk to the police car, then?
A. No.
Q. Did you give him that option?
A. Yes.
Q. And then, did you have to shove him in the police
car or did he get in there voluntarily?
A. Semi-voluntarily.
Officer Twyford also testified about his January 5, 2020,
contact with Gaudreault. Officer Twyford was assisting Officer
Peltier in regard to a possible trespassing. They made contact
with Gaudreault at the front door; Officer Peltier explained the
reason the officers were there, which was the trespass at a dif-
ferent address. According to Officer Twyford:
Mr. Gaudreault became upset, and Officer Peltier advised
he was under arrest. Mr. Gaudreault appeared to try to go
back inside of the home. He was standing in the doorway
of the home. And Officer Peltier advised him again he
was under arrest and pulled him outside to the front porch
area, at which point, Mr. Gaudreault began trying to pull
away and keep us from controlling him.
Officer Twyford explained that once Gaudreault was outside
of the house, the officers’ objective was to control him and
place him in handcuffs. Gaudreault “was pulling away from
us. He was rolling, trying to roll and pull away from us and
yelling multiple different things.” Officer Twyford was asked
to describe what degree of strength he felt Gaudreault was
using. He responded, “I don’t know if I’d say it’s strength.
It was just easy for him to keep us from controlling him. He
wasn’t actively trying to hurt us, but he was pulling away not
letting us secure him in handcuffs or control him.” Officer
Peltier was able to get one cuff on Gaudreault, but he was
unable to get the second cuff secured. The area by the front
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STATE v. GAUDREAULT
Cite as 30 Neb. App. 501door was “a small area with a wooden railing and a ramp,”
and the small area made it “harder” to control Gaudreault. The
officers decided to take Gaudreault down the ramp to a larger
area where it was easier to control him. Once Gaudreault was
brought to ground level, the officers were able to secure both
of his hands. Officer Twyford was asked what level of force
or strength he felt that he had to exert. He responded, “I feel
it was pretty low level of force. We just secured his hands,
had ahold of his hands. There [were] no strikes or anything
like that used, pressure points.” He was then asked if he felt
like he had to use “significant muscle power to overcome Mr.
Gaudreault’s efforts.” Officer Twyford responded, “Yes, I’d
say so, yes.” Officer Twyford did not recall being kicked by
Gaudreault. The officers escorted Gaudreault to a law enforce-
ment vehicle, and “there was some slight resistance” from
him to get in the vehicle, but he did get in. Officer Twyford
believed that Gaudreault was intoxicated during their inter­
action that day, stating, “I’ve had multiple contacts with Mr.
Gaudreault, and at this contact, he was slurring his speech and
seemed unsteady on his feet.”
Deputy Chad Byrne with the Dawson County sheriff’s office
testified that on January 5, 2020, he overheard a call on the
radio referencing a possible drunk driver leaving a residence
in Cozad, so he went to see if the Cozad Police Department
needed help. Upon arriving at the residence, Deputy Byrne
observed Officers Peltier and Twyford on the ground with
Gaudreault and there “appeared” to be a struggle to get hand-
cuffs on him. The deputy testified that the “objective of hand-
cuffing is to handcuff him behind his back,” but Gaudreault
“[w]asn’t following instructions in giving [the officers his]
hands and [was] forcefully keeping them in front.” From
his vantage point, the deputy could not tell if Gaudreault
was moving around, but Gaudreault was yelling. The deputy
exited his vehicle and ran up to them, but by that time, the
officers had Gaudreault in handcuffs on the ground. The offi-
cers assisted Gaudreault in standing up. To Deputy Byrne’s
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STATE v. GAUDREAULT
Cite as 30 Neb. App. 501knowledge, there was no one else outside besides the officers
and Gaudreault. The deputy offered to transport Gaudreault,
who appeared to be intoxicated, to the Dawson County jail.
The officers “underhooked [Gaudreault] and forcibly brought
him to [the deputy’s] vehicle” for transport. During transport,
Gaudreault was “verbally combative.”
Gaudreault’s mother testified that Gaudreault came to her
home “late in the evening” on January 5, 2020, when she was
already in bed. She “didn’t really pay any attention [to him]
until he said, ‘Help. Mom.’” She then went into the living
room and saw officers were there. The mother said:
I came into the room and I didn’t really see much. What
I remember seeing is that he was, just kind of went limp
and the police officers were dragging him out the door
and down the ramp. And he was prone. He was on his
back or side or something. I don’t know.
She did not see Gaudreault hit or try to kick an officer, and
she did not see him try to run away. Gaudreault “was kind of
passive, crying and wanted me to help him, but I wasn’t any
help.” The mother did not think that Gaudreault was struggling
with the officers. Once the officers got Gaudreault on his feet,
he walked to the law enforcement vehicle.
After both sides presented their case, the district court
instructed the jury and submitted the case to them for delib-
eration at 4:31 p.m. At 5:40 p.m., the jury submitted a written
question to the court, asking for a definition of “substantial
force.” The court conferred with counsel concerning the ques-
tion and proposed a supplemental instruction. Gaudreault’s
counsel objected to the proposed instruction, stating that an
answer to the jury’s question was “probably not warranted by
law.” The objection was overruled. The supplemental instruc-
tion was subsequently read to the jury at 6:23 p.m., and the
jury resumed deliberations. The jury returned a guilty verdict
10 minutes later at 6:33 p.m. Additional details regarding
the jury question and supplemental instruction will be set forth
in our analysis.
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STATE v. GAUDREAULT
Cite as 30 Neb. App. 501On November 18, 2020, the district court entered a judg-
ment of conviction. Following a hearing in February 2021, at
which Gaudreault admitted the validity of his prior convic-
tions for resisting arrest, the court sentenced Gaudreault to 48
months’ probation for the Class IIIA felony. The probation was
to include 70 days in jail at the beginning of probation and 20
days in jail at the end of probation, the latter of which could be
waived by the court if Gaudreault satisfactorily completed pro-
bation. Gaudreault was given credit for 10 days already served.
Gaudreault appeals.
ASSIGNMENTS OF ERROR
Gaudreault assigns that (1) the district court committed plain
error in providing a supplemental instruction to the jury defin-
ing “substantial force” and (2) the evidence admitted at trial
was insufficient to sustain a guilty verdict.
STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of law,
regarding which an appellate court is obligated to reach a con-
clusion independent of the determination reached by the trial
court. State v. Pope, 305 Neb. 912, 943 N.W.2d 294 (2020).
[2] When examining a sufficiency of the evidence claim, the
relevant question for an appellate court is whether, after view-
ing 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. State v. Dady,
304 Neb. 649, 936 N.W.2d 486 (2019).
ANALYSIS
Gaudreault was charged and convicted of resisting arrest.
Under § 28-904(1):
A person commits the offense of resisting arrest if,
while intentionally preventing or attempting to prevent
a peace officer, acting under color of his or her official
authority, from effecting an arrest of the actor or another,
he or she:
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STATE v. GAUDREAULT
Cite as 30 Neb. App. 501(a) Uses or threatens to use physical force or violence
against the peace officer or another; or
(b) Uses any other means which creates a substantial
risk of causing physical injury to the peace officer or
another; or
(c) Employs means requiring substantial force to over-
come resistance to effecting the arrest.
“Substantial force” is not defined in either § 28-904 or Neb.
Rev. Stat. § 28-109 (Reissue 2016) (terms defined for purposes
of Nebraska Criminal Code).
Supplemental Jury Instruction
After both sides presented their case at trial, the district
court instructed the jury. The jury was given numerous instruc-
tions, including one instruction regarding the elements of the
charged offense. That instruction was as follows:
INSTRUCTION NO. 3
The State has charged the Defendant with one crime,
resisting arrest.
The elements the State must prove by evidence beyond
a reasonable doubt to convict Aaron Gaudreault of the
crime of resisting arrest are:
1. That on or about January 5, 2020, Aaron Gaudreault;
2. intentionally prevented or attempted to prevent a
peace officer;
3. acting under color of his official authority;
4. from effecting the arrest of Aaron Gaudreault;
5. by:
(a) using or threatening to use physical force or vio-
lence against the peace officer or another person, or
(b) use of any other means which created a substantial
risk of causing physical injury to the peace officer or
another person, or
(c) employing means requiring substantial force to
overcome resistance to effecting the arrest; and,
6. that Aaron Gaudreault did so in Dawson County,
Nebraska.
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STATE v. GAUDREAULT
Cite as 30 Neb. App. 501The State has the burden of proving beyond a reason-
able doubt each one of the foregoing elements necessary
for conviction, and this burden never shifts.
If you find from the evidence beyond a reasonable
doubt that each of the foregoing elements is true, it is
your duty to find the Defendant guilty of resisting arrest,
mark an “X” in the verdict form where appropriate, stop
your deliberations and notify the bailiff. If you find the
State did not so prove, then you must find the Defendant
not guilty of resisting arrest, mark an “X” in the verdict
form where appropriate, stop your deliberations and notify
the bailiff.
(Emphasis in original.) Instruction No. 4 included definitions
for the terms “arrest,” “intent,” “intentionally,” “knowingly,”
and “peace officer.” Instruction No. 5 instructed the jury on the
meaning of proof beyond a reasonable doubt. After instruct-
ing the jury, the court submitted the case to the jury for
deliberation.
Slightly over an hour into its deliberations, the jury submit-
ted a written question asking, “What is defined as substan-
tial force[?]”
While outside the presence of the jury, the district court had
a conference with both counsel, as well as Gaudreault, on the
court’s proposed supplemental instruction in response to the
jury’s question. The court’s proposed instruction stated, “‘By
substantial is meant, real, not imaginary, illusory. Whether any
particular conduct described by a witness or evidenced by a
video recording was substantial force is a matter solely within
the duty of the jury to determine the facts.’” The State had no
objection to the proposed instruction. However, Gaudreault’s
counsel objected, stating, “We feel as though in the absence
of a definition that I’ve been able to find in case law that this
question — the answer to this question is probably not war-
ranted by law. We’d ask — I want the objection noted for
the record.” The court responded, “All right, the objection’s
been considered. The words I’ve used, ‘By substantial is meant
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Cite as 30 Neb. App. 501real, not imaginary, or illusory,’ is based on my understanding
of the word substantial, meaning having substance and not
being real (sic) or imagined. So, that’s why that’s included.
The objection’s overruled.” Counsel for the State, as well as
Gaudreault and his counsel, all waived their right to be present
when the court read the instruction to the jury.
We take a moment to note that due to the COVID-19 pan-
demic, the jury remained in the courtroom for its deliberations
and breaks while everyone else was kept out of the courtroom.
The jury had previously been informed that restrooms were in
the hallway and in the jury room. This resulted in at least one
juror being in the jury room where a dictionary was located.
When the district court met with the jury to provide the
supplemental instruction, the following colloquy took place on
the record.
THE COURT: We’re on the record now in Case No.
CR20-27, State of Nebraska versus Aaron Gaudreault.
We are in the presence of the jury, the court reporter and
the bailiff.
Members of the jury, you asked a question. I conferred
with the lawyers and developed an answer to your ques-
tion. Whenever we do this, I have to call them in to make
sure they contribute to whatever I do. We are outside their
presence now, because they said I could go ahead and be
in your presence without them here.
After I got done doing this, I went to my office to go
to the bathroom and a couple jurors went into the jury
room. And I had left behind there one of my books that I
was using to come up with the definition. And is Juror 66
here? Could you come up to this microphone, sir?
You were in the jury room right after I was in the jury
room and you were going to the restroom, I think, and I
think you had to wait a little while and the books were
open there. Did you look up anything in the dictionary?
JUROR #66: I started to look up that word substantial,
but before I got it done, she came in and —
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Cite as 30 Neb. App. 501THE COURT: The court reporter?
JUROR #66: Yeah.
THE COURT: You didn’t get to look anything up, did
you?
JUROR #66: No, I didn’t.
THE COURT: Okay, I’m glad you didn’t.
JUROR #66: I didn’t have my glasses on, couldn’t see
much. I was getting to the S’es.
THE COURT: Yeah, well, . . . I just want to make
sure you didn’t look anything up, because I’d have to go
through a different procedure if you did, okay.
All right, thank you, sir. I appreciate you, appreciate
your honesty, as well.
The court subsequently addressed the jury, stating, “[A]fter I
got the question from you, I met with the lawyers and I did
some research, not just in dictionaries and books, but in cases
that have been decided by appellate courts. And based on that,
we’ve come up with this decision and this definition.” The
court then stated, “You are instructed as follows: ‘By substan-
tial is meant real, not imaginary or illusory. Whether any par-
ticular conduct described by a witness or evidenced by a video
recording was substantial force is a matter solely within the
duty of the jury to determine the facts.’” Ten minutes after the
court provided the supplemental instruction to the jury, the jury
found Gaudreault guilty of resisting arrest.
In its journal entry and judgment, the district court set forth
the timeline of events leading up to the jury’s verdict; the
timeline is also reflected in the record. The court stated, in
relevant part:
At 4:00 p.m. all 12 members of the jury returned to the
courtroom and [the jury instructions were read and] clos-
ing arguments were made. . . .
At 4:3[1] p.m. the case was submitted to the jury and
the jury was given the case for deliberations. At 5:40
p.m. the jury presented a question. While outside the
presence of the jury, the court conferred with counsel
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Cite as 30 Neb. App. 501concerning the question on the record and in the pres-
ence of the defendant. A supplemental instruction was
proposed by the court. The defendant’s objection to part
of the instruction was overruled. Counsel for the plaintiff
and defendant waived their presence at the reading of the
instruction to the jury.
At 6:2[3] p.m. the supplemental instruction was read
to the jury.
At 6:33 p.m. the jury advised it had reached a verdict.
Gaudreault claims that the district court erred in providing a
supplemental instruction to the jury defining substantial force
that was contrary to law and in violation of his constitutional
right to due process and a fair trial.
[3] All the jury instructions must be read together, and if,
taken as a whole, they correctly state the law, are not mis-
leading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error neces-
sitating reversal. State v. Pope, 305 Neb. 912, 943 N.W.2d
294 (2020).
Gaudreault argues that the supplemental instruction “pro-
vided a partial definition based on the Court’s own understand-
ing of the word ‘substantial.’” Brief for appellant at 15. The
supplemental instruction that was given allowed the jury to
believe that the State “showing beyond a reasonable doubt that
any force, as long as it was not imagined or an illusion, being
used by law enforcement to overcome resistance could result in
a conviction.” Id. “This erroneous instruction replaced the jury
as fact finders with the judge and enabled the jury to allow the
[S]tate to convict Mr. Gaudreault for resisting arrest by proving
less than what the statutory elements require in proving ‘sub-
stantial force.’” Id.Neither “substantial” nor “substantial force” is defined in
either § 28-904 or § 28-109; definitions of such are also absent
in the relevant Nebraska case law. A definition of “substantial
force” does not appear in Black’s Law Dictionary or Merriam-
Webster’s Collegiate Dictionary.
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Cite as 30 Neb. App. 501However, Black’s Law Dictionary 1728 (11th ed. 2019)
defines “substantial” as:
1. Of, relating to, or involving substance; material . 2. Real and not imagi-
nary; having actual, not fictitious, existence . 3. Important, essential, and material;
of real worth and importance . 4.
Strong, solid, and firm; large and strongly constructed . 5. At least mod-
erately wealthy; possessed of sufficient financial means . 6. Considerable in extent, amount,
or value; large in volume or number . 7. Having permanence or near-­permanence;
long-lasting . 8. Containing the essence
of a thing; conveying the right idea even if not the exact
details . 9. Nourishing; affording suffi-
cient nutriment .
(Emphasis omitted.) And Merriam-Webster’s Collegiate
Dictionary 1245 (11th ed. 2014) defines “substantial” as:
1 a : consisting of or related to substance b : not imagi-
nary or illusory : real, true c : important, essential
2 : ample to satisfy and nourish : full 3 a
: possessed of means : well-to-do b : considerable in
quantity : significantly great 4 : firmly
constructed : sturdy 5 : being largely but
not wholly that which is specified [.]
(Emphasis omitted.) Both dictionaries include multiple mean-
ings for the word “substantial,” but the district court chose to use
only one meaning in its supplemental instruction even though
more than one meaning would have been applicable to the
case. For example, the court chose to define “substantial” only
as “real, not imaginary or illusory.” However, “Considerable in
extent, amount, or value,” see Black’s Law Dictionary, supra
at 1728, or “considerable in quantity : significantly great,”
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Cite as 30 Neb. App. 501see Merriam-Webster’s Collegiate Dictionary, supra at 1245,
would have been relevant meanings as well.
[4] Gaudreault contends that by “using the Court’s supple-
mental instruction, the jury was led to believe that [it] could
convict simply because ‘any’ force, that was not imaginary
force, was needed by law enforcement to overcome any resist­
ance.” Brief for appellant at 19. We agree. The district court
gave a partial or incomplete definition of “substantial” in its
supplemental jury instruction. By limiting its definition to
“real, not imaginary or illusory,” force, the district court mis-
led the jury to believe that it need not consider the extent or
amount of force required by officers to overcome Gaudreault’s
resistance. A jury instruction which misstates the issues and has
a tendency to confuse the jury is erroneous. State v. Clausen,
307 Neb. 968, 951 N.W.2d 764 (2020). However our analysis
does not conclude here. We must also consider whether the
erroneous jury instruction was harmless.
[5] In reviewing a claim of prejudice from jury instructions
given or refused, the appellant has the burden to show that
the allegedly improper instruction or the refusal to give the
requested instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. State v. Pope, 305
Neb. 912, 943 N.W.2d 294 (2020).
[6,7] Jury instructions are subject to the harmless error
rule, and an erroneous jury instruction requires reversal only
if the error adversely affects the substantial rights of the com-
plaining party. State v. Dady, 304 Neb. 649, 936 N.W.2d 486(2019). 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 ver-
dict surely would have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely
unattributable to the error. Id.We are unable to say that the district court’s erroneous
supplemental jury instruction was not harmless in this case.
Section 28-904(1) contains three alternative subparts for
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Cite as 30 Neb. App. 501resisting arrest. We cannot tell from our record the extent to
which the jury focused on § 28-904(1)(a) or (b) in reaching its
verdict. However, it is clear on our record that the jury actively
focused on § 28-904(1)(c), because it asked the court to define
“substantial force.” When speaking to the jury in advance of
presenting the supplemental instruction, the court informed
the jury it had “conferred with the lawyers and developed
an answer” to their question. The court also indicated it “did
some research, not just in dictionaries and books, but in cases
that have been decided by appellate courts. And based on that,
we’ve come up with this decision and this definition.” The
court thus gave the impression that both parties contributed and
agreed to the definition, which Gaudreault’s attorney did not,
and further, the court implied that appellate decisions also sup-
ported the definition being supplied to the jury. The court then
instructed the jury on the definition of “substantial,” which as
already discussed, was incomplete and potentially mislead-
ing. The jury reached its “guilty” verdict 10 minutes after
receiving the erroneous supplemental instruction. Under these
circumstances, we cannot say that the guilty verdict rendered
was surely unattributable to the error. See State v. Dady, supra.Because the court’s erroneous supplemental jury instruction
was not harmless, we reverse Gaudreault’s conviction for
resisting arrest.
Sufficiency of Evidence
and Double Jeopardy
[8,9] Upon finding reversible error in a criminal trial, an
appellate court must determine whether the total evidence
admitted by the district court, erroneously or not, was suffi-
cient to sustain a guilty verdict. State v. Draper, 289 Neb. 777,
857 N.W.2d 334 (2015). If it was not, then double jeopardy
forbids a remand for a new trial. Id.The elements for resisting arrest were set forth previously
in this opinion. At trial, there was no dispute that Officers
Peltier and Twyford were peace officers acting under color
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Cite as 30 Neb. App. 501of their official authority attempting to effectuate an arrest of
Gaudreault. The question was whether Gaudreault intention-
ally prevented or attempted to prevent the officers from effec-
tuating that arrest. Pursuant to § 28-904(1), Gaudreault could
be found guilty of resisting arrest if he (a) used or threatened
to use physical force or violence against the peace officer or
another, (b) used any other means which created a substantial
risk of causing physical injury to the peace officer or another,
or (c) employed means requiring substantial force to overcome
resistance to effecting the arrest. There was testimony given at
trial that while the officers were attempting to place Gaudreault
in handcuffs, he pulled away from the officers, kicked at them,
and curled his free arm under his body so that the officers
could not put that free arm behind his back and cuff his wrist.
The officers had to “pull,” “muscle,” and use a “wrist lock” in
order to get both handcuffs on Gaudreault. We conclude that
the evidence was sufficient to sustain Gaudreault’s conviction
for resisting arrest. Double jeopardy therefore does not pre-
clude a new trial.
CONCLUSION
For the reasons set forth above, we reverse Gaudreault’s
conviction and remand the cause to the district court for a
new trial.
Reversed and remanded for a new trial.