Date: 06-19-2015

Case Style: State of Nebraska v. Jacob D. Armagost

Case Number: S-14-058

Judge: Wright

Court: Supreme Court of Nebraska on Petition for further review from the Court of Appeals on appeal thereto from the District Court, Merrick County, Michael J. Owens

Plaintiff's Attorney: Jon Bruning, Attorney General, Laura Nigro, and Erin E.
Tangeman for appellee.

Defendant's Attorney: Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom &
Stehlik, P.C., L.L.O., for appellant.

Description: Jacob D. Armagost was charged with operating a motor
vehicle in a willful reckless manner to avoid arrest and was
subsequently convicted by a jury. On appeal, the Nebraska
Court of Appeals held that an attempt to arrest or issue a
citation to a defendant is an essential element of the offense
of operating a motor vehicle to avoid arrest. See State v.
Armagost, 22 Neb. App. 513, 856 N.W.2d 156 (2014). It
concluded the district court erred in failing to include a jury
instruction on the material elements of the offense, but that
the error was harmless. Armagost and the State petitioned for
further review.
SCOPE OF REVIEW
[1,2] Whether the jury instructions given by a trial court
are correct is a question of law. United Gen. Title Ins. Co.
v. Malone, 289 Neb. 1006, 858 N.W.2d 196 (2015). When
reviewing questions of law, an appellate court resolves the
questions independently of the conclusion reached by the lower
court. In re Guardianship & Conservatorship of Barnhart, 290
Neb. 314, 859 N.W.2d 856 (2015).
FACTS
A jury found Armagost guilty of operating a motor vehicle
in a willful reckless manner to avoid arrest. He was found to
be a habitual criminal, and the district court sentenced him to
10 to 14 years’ imprisonment.
At the jury instruction conference, Armagost offered a proposed
jury instruction setting forth a definition of the term
“arrest.” Defense counsel argued that it was important for
the jury to know the definition of an arrest so that the jury
could determine whether the essential element of an attempt
to arrest Armagost was satisfied. The district court declined to
give the proposed instruction, indicating that such instruction
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291 Nebraska Reports
STATE v. ARMAGOST
Cite as 291 Neb. 117
could confuse the jury, since an actual arrest was not necessary
for a conviction.
Armagost also objected to instruction No. 3, which set forth
the elements of the offense, on the basis that it omitted the element
of an attempt to arrest him. The district court overruled
the objection and gave the elements instruction as written,
without including the element of an attempted arrest. The jury
found Armagost guilty of operating a motor vehicle in a willful
reckless manner to avoid arrest.
On appeal, Armagost assigned, inter alia, that the district
court erred in giving jury instruction No. 3 pertaining to
the charge of flight to avoid arrest, which did not include a
requirement that the jury find the officer made an attempt at an
arrest. He also contended that the district court erred in failing
to offer his proposed jury instruction containing the definition
of “arrest.”
The Court of Appeals affirmed Armagost’s conviction and
sentence. It found that the district court erred by giving a jury
instruction on the material elements of the offense that omitted
the element of an attempt to arrest or cite Armagost, but
determined that the error was harmless. The court concluded
that a jury instruction on the definition of “arrest” was not
warranted. Armagost and the State each petitioned this court
for further review.
ASSIGNMENTS OF ERROR
Armagost claims the Court of Appeals erred when it found
that an attempt at an arrest or citation was an essential element
of the crime charged, but concluded that the failure to
so instruct the jury was harmless error. He also contends that
it was error not to give his proposed jury instruction on the
definition of “arrest.”
The State asserts that the Court of Appeals erred in finding
that an attempt to arrest or cite Armagost was an essential element
of the charge of operating a motor vehicle in a willful
reckless manner to avoid arrest.
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291 Nebraska Reports
STATE v. ARMAGOST
Cite as 291 Neb. 117
ANALYSIS
The question we address is whether the attempt to arrest or
issue a citation is an essential element of the charge of operating
a motor vehicle in a willful reckless manner to avoid arrest
under Neb. Rev. Stat. § 28-905 (Reissue 2008).
The State claims that the attempted arrest or citation is
implicit in the language of § 28-905, which provides in relevant
part:
(1) Any person who operates any motor vehicle to flee
in such vehicle in an effort to avoid arrest or citation
commits the offense of operation of a motor vehicle to
avoid arrest.
. . . .
(3)(a) Any person who violates subsection (1) of this
section shall be guilty of a Class IV felony if, in addition
to the violation of subsection (1) of this section, one or
more of the following also applies:
. . . .
(iii) The flight to avoid arrest includes the willful reckless
operation of the motor vehicle.
The Court of Appeals found, and it was not disputed,
that instruction No. 3 mirrored the language of § 28-905.
Therefore, we turn to instruction No. 3 as given to the jury,
which stated:
The material elements which the State must prove
beyond a reasonable doubt in order to convict [Armagost]
of the offense of operating a motor vehicle in a willful
reckless manner to avoid arrest are:
1. That . . . Armagost . . . operated a motor vehicle;
2. That [Armagost] fled in such vehicle in an effort to
avoid arrest or citation;
3. That [Armagost] did so in a willful reckless manner;
and
4. That [Armagost] did so on or about June 6, 2013, in
Merrick County, Nebraska.
A person drives in a willful reckless manner if he
or she drives any motor vehicle in such a manner as
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STATE v. ARMAGOST
Cite as 291 Neb. 117
to indicate a willful disregard for the safety of persons
or property.
The elements of the lesser included offense of operating
a motor vehicle to avoid arrest are:
1. That . . . Armagost . . . operated a motor vehicle; and
2. That [Armagost] did so in an effort to avoid arrest
or citation; and
3. That [Armagost] did so on or about June 6, 2013, in
Merrick County, Nebraska.
This instruction mirrors the statute, but Armagost claims that
the jury should have been given an instruction on the separate
element of attempted arrest or citation. We disagree.
[3,4] In giving instructions to the jury, it is proper for the
court to describe the offense in the language of the statute.
State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005).
To establish reversible error from a court’s refusal to give a
requested instruction, an appellant has the burden to show that
(1) the tendered instruction is a correct statement of the law,
(2) the tendered instruction is warranted by the evidence, and
(3) the appellant was prejudiced by the court’s refusal to give
the tendered instruction. State v. Banks, 278 Neb. 342, 771
N.W.2d 75 (2009).
In concluding that the district court should have included
an instruction on attempted arrest or citation, the Court of
Appeals relied on our statement in State v. Williams, 247 Neb.
931, 939, 531 N.W.2d 222, 229 (1995), overruled, State v.
Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), that “[j]ury
instructions that set forth only the statutory elements of a
crime are insufficient when they do not set forth all the essential
elements of the crime.” The Court of Appeals relied on our
statement in State v. Claussen, 276 Neb. 630, 756 N.W.2d 163
(2008), that an attempt at an arrest or citation is an essential
element of the offense of operating a motor vehicle to avoid
arrest. Based on our statements in Williams and Claussen, the
Court of Appeals concluded that the district court erred in
failing to include an instruction to the jury on attempted arrest
or citation.
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Nebraska Advance Sheets
291 Nebraska Reports
STATE v. ARMAGOST
Cite as 291 Neb. 117
The State contends that we rejected a court’s ability to look
beyond the language of a statute in determining an element of
a crime in Burlison, thus overruling our holding in Williams.
We agree.
The Court of Appeals’ reliance on our statement in Williams
was misplaced. Since overruling Williams, we have consistently
held that when instructing the jury, it is proper for the
court to describe the offense in the language of the statute.
See, State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011);
State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006); State
v. Sanders, supra.
This principle simplifies the process of preparing jury
instructions. It provides certainty for trial courts concerning
the question whether the essential elements of the offense have
been given to the jury.
[5] Using the specific language of a statute more effectively
implements the intent of the Legislature. Within constitutional
boundaries, the Legislature is empowered to define a crime.
State v. Burlison, supra. In Burlison, we held that the only
elements of murder in the second degree were those which
the Legislature included in the statute on second degree murder,
namely, the causation of death intentionally but without
premeditation. And we have followed this principle in considering
whether a jury has been properly instructed as to the
elements of the crime charged. See, State v. Kass, supra; State
v. Davlin, supra; State v. Sanders, supra.
Additionally, the State argues that the Court of Appeals’ reliance
on our statement in Claussen that “attempt to arrest” was
an essential element of the crime of operating a motor vehicle
in a willful reckless manner to avoid arrest was misplaced.
Memorandum brief for appellee in support of petition for further
review at 3. The State distinguishes Claussen, because
our interpretation of the statute addressed the sufficiency of
the evidence and not the adequacy of jury instructions. We
agree. In Claussen, we did not suggest that attempted arrest
or citation must be included as a separate element in the jury
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STATE v. ARMAGOST
Cite as 291 Neb. 117
instructions. Instead, we were addressing whether there was
sufficient evidence to sustain a conviction.
However, even assuming arguendo that our statement in
Claussen regarding attempted arrest or citation had been referring
to jury instructions, our conclusion remains the same.
Instruction No. 3, which used the language of the statute, was
sufficient to describe the elements of the crime charged. To
convict Armagost, the district court required the jury to find
that “[Armagost] fled in such vehicle in an effort to avoid
arrest or citation.” Thus, the jury necessarily had to determine
that Armagost fled from an attempted arrest or citation, otherwise
there would be nothing for him to avoid or from which to
flee. No separate instruction was necessary to convey this point
to the jury. The charge of operating a vehicle to avoid arrest
or citation inherently implies the defendant was attempting to
avoid an arrest or citation.
We find that Armagost’s proposed jury instruction regarding
the definition of “arrest” was unnecessary and could have
confused the jury. Consequently, the district court did not err in
excluding it from the jury instructions. The proposed instruction
stated:
An arrest is taking custody of another person for the
purpose of holding or detaining him or her to answer to
a criminal charge, and to effect an arrest, there must be
an actual or constructive seizure or detention of the person
arrested.
State v. Heath, 21 Neb.App. 141 (2013)[.]
The proposed instruction is a correct statement of the law,
but an instruction on the definition of arrest was not required.
The Court of Appeals correctly concluded that in order to be
convicted of this charge, it was not necessary for the State to
prove that an arrest had been effected.
Unlike charges for resisting arrest and escape from arrest,
which involve a crime occurring after or during an arrest,
the charge of operating a motor vehicle to avoid arrest
occurs before the arrest. The charge means that the defendant
attempted to avoid arrest, and whether a defendant was “under
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291 Nebraska Reports
STATE v. ARMAGOST
Cite as 291 Neb. 117
arrest” is not a material element of fleeing to avoid arrest. Such
an instruction could have confused the jury as to whether an
arrest was an element of the crime charged. Unlike an offense
or civil action where the nature of a person’s detention is at
issue, a common understanding of the term “arrest” was sufficient
for the jury to convict Armagost of willful reckless use
of a vehicle to avoid arrest.
For the reasons stated above, we find that the district court
did not err in refusing to instruct the jury that an attempted
arrest or citation was an element of the offense and did not err
in refusing to give a separate instruction on the legal definition
of “arrest.”

Outcome: We affirm the Court of Appeals’ decision affirming
Armagost’s conviction, but disapprove of its conclusion that
under § 28-905, an attempt to arrest or cite a defendant must
be separately identified as an element in jury instructions.
Affirmed.

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