State v. Stolen, S-06-1216.
| Decision Date | 12 September 2008 |
| Docket Number | No. S-06-1216.,S-06-1216. |
| Parties | STATE of Nebraska, Appellee, v. Steve STOLEN, Appellant. |
| Court | Nebraska Supreme Court |
Robert B. Deck, Sioux City, IA, for appellant.
Jon Bruning, Attorney General, and Erin E. Leuenberger, Lincoln, for appellee.
The State charged Steve Stolen with obstructing government operations under Neb.Rev.Stat. § 28-901(1) (Reissue 1995), a Class I misdemeanor.1 Stolen and other campers had cleaned up empty beer cans and trash before officers arrived to investigate the accidental drowning death of one of the campers. The deceased camper was a minor. The evidence showed that minors in the group, including the camper who drowned, had consumed alcoholic beverages during the night. The Nebraska Court of Appeals affirmed Stolen's conviction.2 We granted Stolen's petition for further review. The issue is whether Stolen obstructed government operations by helping to discard empty beer cans and other trash that might have indicated the campers had consumed alcohol.
We reverse and remand with directions to vacate Stolen's conviction and sentence. We conclude that to commit obstruction of government operations, a person must affirmatively interfere with a public servant's active performance of a duty. Here, the officers had not begun an investigation. And the evidence fails to show that Stolen affirmatively interfered with the active performance of a duty. Nor does the evidence show that the campers' disposal of beer cans and trash impaired or obstructed the investigation into the cause of the minor's death.
On July 3, 2005, Stolen was camping with about 12 people on private property owned by Bradley Jochum. Jochum was also camping on the property with about 20 to 25 people. The property abutted the Missouri River in Dakota County. Stolen and his friend, Kingsley James, had planned an Independence Day party for Stolen's son and his son's Army National Guard friends before they left for Iraq. James brought his son and his son's friend, who were both minors. James' son's friend then invited Ken Willis, Jr., the camper who later died; Willis was also a minor. Three people in Stolen's group were minors. Stolen's group partied with Jochum's group during the night. Their activities included shooting fireworks, playing volleyball, and arm wrestling. People in both groups had brought alcoholic beverages, and the record shows that the minors in Stolen's group consumed alcohol.
Stolen went to sleep about 2 a.m. Around 2:30 a.m., James' son and his son's friend informed James that Willis was missing. After searching for about an hour, the campers concluded that Willis must have left on foot or left with someone, and they returned to their tents. Around 6 a.m., while taking a walk, James found Willis' body partially in the river and woke Stolen.
The record contains conflicting testimony from Stolen, James, and Jochum regarding who suggested that the campers clean up empty beer cans and trash before law enforcement officers arrived. Their testimony also conflicted whether the campers cleaned up part of the mess before waking Jochum and asking him to call the 911 emergency dispatch service. But viewing the evidence in the light most favorable to the State, the evidence supports a finding that the campers, including Stolen, picked up beer cans and trash before officers arrived, because they were concerned about the appearance of alcohol consumption when minors were present. The State did not present any testimony that the campers cleaned the campsite to deflect an investigation into the cause of Willis' death. Stolen admitted to helping with the cleanup. James testified that the campers put some empty beer cans in Stolen's son's boat; he stated that five campers then left in that boat. Jochum testified that four campers stayed: James, Stolen, James' son, and his son's friend. Stolen testified that the campers put three to four bags of garbage in a pickup belonging to someone in Jochum's group.
Jared Junge, a deputy sheriff for Dakota County, arrived at the campsite 10 to 15 minutes later, about 6:30 a.m. Junge described the campsite as clean. He testified that the campers, including the minors, appeared to have been drinking during the night. Some were still under the influence of alcohol. He saw about six beer cans and said that he generally saw more trash and beer cans at campsites when the campers are hung over or intoxicated. And he normally looks for alcohol containers at a campsite when there is evidence of alcohol consumption. He said that his investigation is hampered if someone has removed the physical evidence. Junge testified that the removal of physical evidence from the scene could distort the picture of what happened and possibly result in the loss of forensic evidence.
Junge testified that his investigation was hampered because the campers had removed all but about six beer cans. But he admitted that during his investigation, he did not attempt to collect any beer cans. Nor was he aware that any other officer attempted to collect physical evidence other than to retrieve Willis' body. He limited his investigation to collecting contact information from the campers so that he could interview them later. No evidence suggests that the campers responded untruthfully to questioning about the minors' alcohol consumption. Nor did they attempt to physically interfere with the officers' active investigation at the campsite.
An autopsy showed Willis had consumed alcohol before his death. The parties stipulated that his blood alcohol level was 157 milligrams per deciliter of blood. The investigators determined Willis' death was accidental.
The State charged Stolen with one count of obstructing government operations under § 28-901 and one count of procuring alcohol for a minor. A jury found him guilty of obstruction and not guilty of procuring alcohol. The court placed him on probation for 18 months and ordered him to complete 90 hours of community service and write letters of apology to Willis' family and law enforcement.
Stolen appealed to the district court, which affirmed. He then appealed to the Court of Appeals. He assigned that (1) there was no physical act that supported an obstruction conviction and (2) the evidence on an underlying unlawful act was insufficient to support an obstruction conviction.
The Court of Appeals held that the circumstantial evidence, when viewed in the light most favorable to the State, was sufficient for a jury to infer that Stolen had committed a physical act "intended to" interfere with an investigation into Willis' death, "which investigation Stolen knew was about to occur."3 It held that Stolen committed "physical interference" under § 28-901(1) when he cleaned the campsite and removed alcohol containers. It dismissed Stolen's reliance on this court's decision in State v. Fahlk.4
Stolen assigns, restated and condensed, that the Court of Appeals incorrectly held that Fahlk was not controlling under these facts.
The interpretation and meaning of a prior opinion presents a question of law.5 Statutory interpretation presents a question of law.6 When reviewing questions of law, we resolve the questions independently of the lower court's conclusions.7
Section 28-901(1) provides:
A person commits the offense of obstructing government operations if he intentionally obstructs, impairs, or perverts the administration of law or other governmental functions by [1] force, violence, physical interference or obstacle, [2] breach of official duty, or [3] any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.
Section 28-901 tracks § 242.1 of the Model Penal Code.8 As indicated by the numbered brackets we have placed in the quoted statute, we concluded in Fahlk that § 28-901 comprises three separate means of committing obstruction of government operations. We further concluded that the "physical act" component "must consist of some physical interference, force, violence, or obstacle."9
Stolen contends that under our decision in Fahlk, his conduct was not a crime. He argues that the Court of Appeals effectively overruled Fahlk and failed to recognize that it was controlling under these facts.
In Fahlk, the defendant was a high school superintendent. A jury convicted him of obstructing government operations because he supplied an investigator with a falsified checkout sheet for supplies from a school. The checkout sheet purported to show that he had informed school officials when he "checked out" a computer printer. On appeal, the Court of Appeals held that the evidence was sufficient to support his conviction under the third component of § 28-901, which prohibits obstruction through any other unlawful act. Citing Neb.Rev.Stat. § 28-922 (Reissue 1995) (tampering with evidence), the Court of Appeals concluded that a jury could have found beyond a reasonable doubt that the defendant presented false evidence to the investigator "when [the defendant] realized that an official proceeding was about to be instituted."10
This court reversed the judgment of the Court of Appeals. We concluded that the evidence was insufficient under any component of § 28-901. Regarding the physical act component, we stated that the defendant's "actions surpass failing to volunteer information but lack the element of force or violence contemplated by § 28-901."11
In Fahlk, we also rejected the Court of Appeals' reliance...
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