State v. Owen

• Decision Date: 09 June 1998
• Docket Number: No. A-97-890,A-97-890
• Citation: 580 N.W.2d 566,7 Neb.App. 153
• Parties: STATE of Nebraska, Appellee, v. James B. OWEN, Appellant.
• Court: Nebraska Court of Appeals

Page 566

580 N.W.2d 566

7 Neb.App. 153

STATE of Nebraska, Appellee, v. James B. OWEN, Appellant.

No. A-97-890.

Court of Appeals of Nebraska.

June 9, 1998.

Syllabus by the Court

1. Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

2. Jury Instructions: Appeal and Error. All jury instructions given must be read 3. Police Officers and Sheriffs: Words and Phrases. Pursuant to Neb.Rev.Stat. § 28-906(1) (Reissue 1995), 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 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.

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. Police Officers and Sheriffs. The mere verbal refusal to provide information to an officer does not constitute an obstacle to the enforcement of the penal laws as contemplated by Neb.Rev.Stat. § 28-906 (Reissue 1995).

5. Police Officers and Sheriffs. There must be some sort of affirmative physical act, or threat thereof, for a violation of Neb.Rev.Stat. § 28-906 (Reissue 1995) to occur.

6. Trial: Appeal and Error. Conduct of final argument is within the discretion of the trial court, and a trial court's ruling regarding final argument will not be disturbed absent an abuse of that discretion.

7. Judges: Words and Phrases. A judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

8. Juries: Testimony: Notice. Pursuant to Neb.Rev.Stat. § 25-1116 (Reissue 1995), if a jury has retired for deliberation and desires information as to any part of the law arising in the case, the jury members may request an officer to conduct them to the court, where the information upon the point of law shall be given and the court may give its recollection as to the testimony on the point in dispute in the presence of or after notice to the parties or their counsel.

9. Jury Instructions. When it becomes necessary for the trial court to give further instructions to a jury during deliberations, the proper practice is to call the jury into open court and to give any additional instructions in writing in the presence of the parties or their counsel.

10. Jury Instructions: Appeal and Error. Even though it is error for the trial court to give an instruction to a jury after it has retired to deliberate out of the presence of the parties and their counsel, if it clearly appears that prejudice did not and could not flow therefrom, then the error is without prejudice and is not grounds for reversal.

David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., for appellant.

Don Stenberg, Attorney General, and Marilyn B. Hutchinson for appellee.

SIEVERS, MUES, and INBODY, JJ.

INBODY, Judge.

INTRODUCTION

James B. Owen appeals his conviction of obstruction of a peace officer, in violation of Neb.Rev.Stat. § 28-906 (Reissue 1995). For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

At the outset, we note that the instant case involved a jury trial and that Owen testified in his defense and also produced additional witnesses in his behalf. Consequently, there were differing versions of the events which led to Owen's being charged with obstruction of a peace officer presented to the jury. However, this court, in reviewing a conviction, is required to view the facts in the light most favorable to the State, and the facts as set forth herein reflect that rule. See, State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997); State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).

Shortly after 1 a.m. on October 20, 1996, Buffalo County Deputy Sheriff Scott Michael Snowardt was driving his marked patrol cruiser when he observed two individuals, Jerry Owen and his girl friend, Angela Loebig, involved in what appeared to be a verbal and physical altercation in front of the Kool At approximately 1:10 a.m., Officer Dennis Gene Byrne arrived on the scene. Officer Byrne began talking with Jerry and asked him for identification. Jerry provided a driver's license. While Officer Byrne was talking with Jerry, Owen was standing on the sidewalk. However, as the incident continued, Owen started advancing toward Officer Byrne to the point where Owen was approximately 1 to 1 1/2 feet from the officer's left shoulder, yelling for Jerry not to talk to the officer. Officer Byrne directed Owen to return to the curb, but Owen did not comply. At this point, Jerry became verbally abusive toward Officer Byrne and Officer Byrne again directed Owen to return to the curb, but Owen still did not comply.

Tattoo Parlor located at 1904 Central Avenue in Kearney, Buffalo County, Nebraska. The parties were yelling at one another, and Jerry shoved Angela 8 to 10 feet into the southbound lane of traffic. At this point, Deputy Snowardt parked his cruiser, approached Jerry and Angela, and inquired as to what was happening. Jerry yelled at Deputy Snowardt that it was none of his business. Deputy Snowardt continued to attempt to elicit information from Jerry and Angela. At this time, Jerry's father, Owen, came out of a doorway on the west side of the building yelling at Jerry not to say anything to Deputy Snowardt. Because Deputy Snowardt was now confronted with three individuals, Angela; Jerry, who had a strong odor of alcohol on his breath and was being uncooperative; and Owen, who was yelling, the deputy radioed the Kearney Police Department for assistance.

Jerry then lunged at Officer Byrne, attempting to grab his driver's license, and Officer Byrne advised Jerry that he was under arrest for disorderly conduct. Jerry resisted by pushing and pulling in an attempt to get away from Officer Byrne and attempting to knee him in the groin, so Deputy Snowardt assisted Officer Byrne in subduing Jerry. Deputy Snowardt grabbed Jerry's left arm for a second or two. However, at that point, Owen lunged forward and grabbed Officer Byrne's collar from behind and attempted to drag the officer backward. Deputy Snowardt released Jerry's left arm to pull Owen off of Officer Byrne. After Deputy Snowardt ordered Owen twice to let go and Owen failed to do so, the deputy informed Owen twice that he was under arrest and instructed him to stop resisting, but Owen did not comply. Finally, after Owen refused to get down on the ground after being instructed to do so, Deputy Snowardt wrestled Owen to the ground so that he could be handcuffed.

Owen was charged with obstructing a peace officer. A jury trial was held on February 11, 1997. After deliberations had begun, the jury submitted the following written question to the court: "What is the meaning of obstacle on # 2 ... on page 3? physical obstacle? physical presence between 2 people? or could it be a verbal obstacle?" The court responded with the following written statement: "The term obstacle as used in the statute refers to the impeding or hindering of a peace officer in any unlawful manner. It may be verbal or physical." Apparently unsatisfied with the court's response, the jury submitted a second written query to the court: "What is the meaning of verbal obstacle? Does distant [sic] from an officer make [a] difference before it is [a] verbal obstacle?" The court's written response stated, "The answer to your question is addressed in prior instructions. You must decide whether the state has met it's [sic] burden of proof or not." The jury deliberated further and returned a guilty verdict.

Owen was sentenced to 6 months' probation and ordered to complete 50 hours of community service, pay a $500 fine, and serve 30 days in the Buffalo County Detention Center. Owen appealed to the Buffalo County District Court, which affirmed his conviction and sentence. Owen then filed a timely appeal to this court.

ASSIGNMENTS OF ERROR

Owen's four assigned errors on appeal can be consolidated into the following three issues: (1) The trial court erred in failing to instruct the jury, in response to its questions, that a physical act is necessary for a violation of § 28-906 to occur; (2) the trial court erred in failing to grant defense counsel's request to make additional oral argument to the jury

after the court [7 Neb.App. 157] responded to the jury's first question; and (3) the trial court erred in failing to confer with counsel before answering the jury's second question.

STANDARD OF REVIEW

In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997); State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).

DISCUSSION

Court's Response to Jury's Questions.

Owen argues that the trial court erred in failing to state, in response to the jury's questions, that a physical act is necessary for a violation of § 28-906 to occur. Stated another way, Owen contends that the court improperly instructed the jury that an obstacle, as the term is used in §...