State v. Ferrin
| Decision Date | 08 May 2020 |
| Docket Number | No. S-19-594.,S-19-594. |
| Citation | 305 Neb. 762,942 N.W.2d 404 |
| Parties | STATE of Nebraska, appellee, v. Benjamin L. FERRIN, appellant. |
| Court | Nebraska Supreme Court |
John H. Sohl, Wahoo, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis, for appellee.
Heavican , C.J., Miller-Lerman , Cassel , Stacy , Funke , Papik , and Freudenberg , JJ.
The district court for Sarpy County affirmed Benjamin L. Ferrin’s conviction and sentence for the misdemeanor offense 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 intentionally obstructs, impairs, or hinders (a) the enforcement of the penal law or the preservation of the peace by a peace officer or judge acting under color of his or her official authority or (b) a police animal assisting a peace officer acting pursuant to the peace officer’s official 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.
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.
While police were interviewing M.H. outside her residence, Ferrin drove past in his pickup truck. One of the officers got into his cruiser and followed Ferrin’s truck, activating his overhead 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 thereafter, and the officers positioned themselves near the first officer’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.
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.
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.
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.
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 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.
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 admonishing them to consider M.H.’s statements only for the purpose of determining whether police were conducting a criminal investigation 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.
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.
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.
On appeal to this court, Ferrin assigns, restated and reordered, that the district court erred in affirming the judgment of the county court, because the county court erred in (1) overruling 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.
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
Statutory interpretation presents a question of law.4
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.
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 considered.5 As a general proposition,...
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