State v. Stolen

S tate of N ebraSka , appellee , v . S teve S toleN, appellaNt .
755 N.W.2d 596
Filed September 12, 2008. 	No. S-06-1216.
1. Judgments. The interpretation and meaning of a prior opinion present a question
of law.
2. Statutes. Statutory interpretation presents a question of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusions.
4. Criminal Law: Intent. Neb. Rev. Stat. § 28-901 (Reissue 1995) comprises three
separate means of committing obstruction of government operations, and the
physical act component must consist of some physical interference, force, vio-
lence, or obstacle.
5. ____: ____. The physical act component of Neb. Rev. Stat. § 28-901 (Reissue
1995) consists of disjunctive, or independent, elements.
6. Statutes. A court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
7. Criminal Law: Evidence: Case Overruled. State v. Fahlk, 246 Neb. 834, 524
N.W.2d 39 (1994), is overruled to the extent it holds that in every circumstance
in which the State charges obstruction by a physical act, the evidence must show
force or violence.
8. Criminal Law: Public Officers and Employees. Under Neb. Rev. Stat. § 28-901
(Reissue 1995), a defendant may not be convicted of obstructing government
operations by a physical act unless the public servant was engaged in a specific
authorized act at the time of the physical interference.
officers failed to advise Tyler of his Miranda rights. Moreover,
the confession was voluntarily made and not the product
of coercion.
The rest of Tyler’s arguments are also without merit. Tyler
did not suffer prejudice from the juvenile court’s decision
to take note of Tyler’s physical stature. Nor did Tyler suffer
prejudice from the court’s sua sponte decision to fix the cleri-
cal error in the petition. Finally, we conclude that Tyler could
be found to be a child defined under § 43-247(1) for disturbing
Kimberly’s peace by enabling and encouraging others to harass
her directly. Having found that all of Tyler’s assignments of
error and arguments on appeal lack merit, we affirm the juve-
nile court’s judgment.
affirmed .
548 	276 NebRASKA RepoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

9. Criminal Law. obstructing government operations and tampering with evidence
are separate offenses covering different conduct.
petition for further review from the Court of Appeals,
S ieverS, C arlSoN, and C aSSel, Judges, on appeal thereto from
the District Court for Dakota County, W illiam biNkard, Judge,
on appeal thereto from the County Court for Dakota County,
douglaS l. luebe, Judge. Judgment of Court of Appeals
reversed, and cause remanded with directions.
Robert b. Deck for appellant.
Jon bruning, Attorney General, and erin e. Leuenberger
for appellee.
H eaviCaN, 	C.J., 	W rigHt, 	C oNNolly, 	gerrard, 	S tepHaN,
mCC ormaCk, and miller -lermaN, JJ.
C oNNolly, J.
SUMMARY
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 inves-
tigate 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 obstruc-
tion 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
1 See § 28-901(2).
2 State v. Stolen, 16 Neb. App. 121, 741 N.W.2d 168 (2007).
STATe v. SToLeN 	549
Cite as 276 Neb. 548

evidence fails to show that Stolen affirmatively interfered
with the active performance of a duty. Nor does the evi-
dence show that the campers’ disposal of beer cans and trash
impaired or obstructed the investigation into the cause of the
minor’s death.
bACKGRoUND
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 miss-
ing. 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
550 	276 NebRASKA RepoRTS

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 testi-
fied 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 contain-
ers at a campsite when there is evidence of alcohol consump-
tion. 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 foren-
sic 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 con-
tact 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 consump-
tion. Nor did they attempt to physically interfere with the offi-
cers’ 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 deter-
mined Willis’ death was accidental.
STATe v. SToLeN 	551
Cite as 276 Neb. 548

The State charged Stolen with one count of obstructing gov-
ernment 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 convic-
tion 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 suf-
ficient 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 alco-
hol containers. It dismissed Stolen’s reliance on this court’s
decision in State v. Fahlk.4
ASSIGNMeNT oF eRRoR
Stolen assigns, restated and condensed, that the Court of
Appeals incorrectly held that Fahlk was not controlling under
these facts.
STANDARD oF ReVIeW
[1-3] 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
3 Stolen, supra note 2, 16 Neb. App. at 126, 741 N.W.2d at 172.
4 State v. Fahlk, 246 Neb. 834, 524 N.W.2d 39 (1994).
5 See, Pennfield Oil Co. v. Winstrom, ante p. 123, 752 N.W.2d 588 (2008);
Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990), citing Neujahr v.
Neujahr, 223 Neb. 722, 393 N.W.2d 47 (1986).
6 State v. Epting, ante p. 37, 751 N.W.2d 166 (2008).
7 State v. Draganescu, ante p. 448, 755 N.W.2d 57 (2008).
552 	276 NebRASKA RepoRTS

ANALYSIS
[4] Section 28-901(1) provides:
A person commits the offense of obstructing govern-
ment 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 govern-
mental 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 govern-
ment 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 con-
duct 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.
F ahlk iNCorreCtly required forCe or violeNCe iN
all C irCumStaNCeS iNvolviNg obStruCtioN of
goverNmeNt operatioNS by pHySiCal aCt
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
8 See Model penal Code § 242.1, 10A U.L.A. 638 (2001).
9 See Fahlk, supra note 4, 246 Neb. at 853, 524 N.W.2d at 53.
STATe v. SToLeN 	553
Cite as 276 Neb. 548

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 investi-
gator “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 compo-
nent, 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 on
the “other unlawful act” component of § 28-901. We recog-
nized that the evidence might have supported a conviction for
tampering with evidence under § 28-922. but we concluded
that the Court of Appeals erred when it relied on a violation of
§ 28-922 because the State had not charged that offense and it
was not an issue before the jury.
In this case, the Court of Appeals distinguished Fahlk. It
concluded that Fahlk had not provided guidance on the force or
violence necessary to constitute physical interference. It further
stated that Fahlk did not “address the ‘physical interference’ or
‘obstacle’ component of the statute.”12 Although we disagree
with the Court of Appeals’ interpretation of Fahlk, upon reex-
amination of the decision, we conclude that we were wrong.
We determine that Fahlk incorrectly requires force or violence
in all circumstances alleging obstruction of government opera-
tions under the physical act component of § 28-901.
[5,6] In our reexamination of Fahlk, we conclude that we
failed to focus on the statutory language of § 28-901. The
physical act component of § 28-901 consists of disjunctive,
10 See State v. Fahlk, 2 Neb. App. 421, 436, 510 N.W.2d 97, 106 (1993).
11 Fahlk, supra note 4, 246 Neb. at 854, 524 N.W.2d at 53 (emphasis sup-
plied). See, also, Nebraska Legislature on behalf of State v. Hergert, 271
Neb. 976, 720 N.W.2d 372 (2006) (clarifying that holding in Fahlk was
limited to physical act component).
12 Stolen, supra note 2, 16 Neb. App. at 125, 741 N.W.2d at 172.
554 	276 NebRASKA RepoRTS

or independent, elements: “force, violence, physical interfer-
ence or obstacle.” In construing statutory language, we attempt
to give effect to all parts of a statute and avoid rejecting as
superfluous or meaningless any word, clause, or sentence.13
Although the use of “and” and “or” can be interchangeable,14
here, the Legislature had no reason to include “physical inter-
ference” as a means of committing obstruction if it intended
to equate “physical interference” to the physical acts of using
“force” or “violence.” Thus, a disjunctive reading of the ele-
ments is consistent with the plain meaning of the statute. It is
also consistent with comments to the Model penal Code and
the way other courts have interpreted similar statutes.
For example, under a similar statute,15 New York courts have
held that physical force was not required when the defendant
physically interjected himself into ongoing undercover police
operations to purposefully disrupt the operation or warned
others involved in criminal activity of the officers’ presence.16
Similarly, courts have concluded that physical interference
does not require the use of force or violence when the defend-
ants committed the following acts: (1) Defendants surrounded
an officer attempting to arrest a person and allowed that person
to flee custody and escape17; (2) defendants entered an abortion
clinic and chained themselves together with bicycle locks so
that police could not transfer them to a jail until a locksmith
removed the locks18; (3) defendant refused to remove a crutch
wedging a door closed so that officers could serve eviction
papers19; or (4) defendant placed a tractor and dump truck
in front of a mobile home to prevent officers from executing
13 State v. Bossow, 274 Neb. 836, 744 N.W.2d 43 (2008).
14 See State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005).
15 See N.Y. penal Law § 195.05 (McKinney 1999).
16 See, Matter of Davan L., 91 N.Y.2d 88, 689 N.e.2d 909, 666 N.Y.S.2d
1015 (1997); People v. Covington, 18 A.D.3d 65, 793 N.Y.S.2d 384
(2005); People v. Dolan, 172 A.D.2d 68, 576 N.Y.S.2d 901 (1991).
17 See People v. Shea, 68 Misc. 2d 271, 326 N.Y.S.2d 70 (1971).
18 See State v. Purdy, 491 N.W.2d 402 (N.D. 1992).
19 See State v. Mattila, 77 or. App. 219, 712 p.2d 832 (1986).
STATe v. SToLeN 	555
Cite as 276 Neb. 548

a replevin order to take possession.20 Although the inquiries
are fact-specific, these cases mirror the intent of § 28-901 as
reflected in the comments to Model penal Code § 242.1. Those
comments show that the offense was intended as a gap-filler, to
broadly cover conduct that could not be adequately anticipated
by more specific offenses against public administration.21
[7] Therefore, we overrule Fahlk to the extent it holds that
in every circumstance in which the State charges obstruction
by a physical act, the evidence must show force or violence.
our concern in Fahlk about the potential breadth of this statute
had been expressed by other courts.22 but we conclude that this
concern is better addressed by focusing on the statute’s require-
ment of affirmative interference.
S eCtioN 28-901 requireS affirmative iNterfereNCe
Section 28-901 specifically limits its reach by excluding any
“means of avoiding compliance with law without affirmative
interference with governmental functions.” Thus, courts have
held that the state must allege physical interference with a pub-
lic servant’s active performance of an authorized duty.
For 	example, 	an 	allegation 	that 	a 	defendant 	publicly
announced an undercover officer’s identity as an officer was
insufficient to support an obstruction charge. There, the charg-
ing instrument failed to allege the specific duty the officer was
engaged in that the defendant’s conduct allegedly interfered
with.23 Likewise, an allegation that the defendant discarded or
destroyed contraband when he saw an officer approaching him
is insufficient to support an obstruction charge; the officer must
20 See State v. Holloway, 992 S.W.2d 886 (Mo. App. 1999).
21 See, Model penal Code, supra note 8; A.L.I., Model penal Code and
Commentaries § 242.1, comment 2 (1980). See, also, People v. Case, 42
N.Y.2d 98, 365 N.e.2d 872, 396 N.Y.S.2d 841 (1977).
22 See, Case, supra note 21; People v. Joseph, 156 Misc. 2d 192, 592
N.Y.S.2d 238 (1992); People v. Simon, 145 Misc. 2d 518, 547 N.Y.S.2d
199 (1989).
23 People v. Hinkson, 184 Misc. 2d 496, 708 N.Y.S.2d 546 (2000).
556 	276 NebRASKA RepoRTS

be actively engaged in attempting to retrieve the contraband.24
even under the common law and statutes preceding the Model
penal Code, it was “essential that the obstruction be offered
with respect to an official or public duty which the officer is
attempting to perform.”25
[8] We are persuaded by the reasoning of New York courts
that have rejected obstruction charges when the charging instru-
ment fails to allege affirmative interference with an active duty.
“‘[T]he mens rea of this crime is an intent to frustrate a public
servant in the performance of a specific function.’”26 Thus, a
defendant may not be convicted of obstructing government
operations by a physical act unless the public servant was
engaged in a specific authorized act at the time of the physical
interference.27 every element of § 28-901’s physical act com-
ponent supports the conclusion that the statute was intended
to reach only affirmative interference with a public servant’s
active performance of a duty.
Here, officers were called to the scene to investigate the
cause of Willis’ death—not whether Stolen had procured alco-
hol for minors. The State argues that “Stolen’s act of pick-
ing up the beach was a physical interference and obstacle
that obstructed law enforcement’s investigation into Willis’
death.”28 but accepting this argument would leave § 28-901
without boundaries. No officers were engaged in investigating
Willis’ death when the campers cleaned up the campsite. Nor
did the State allege or argue that Stolen or the other campers
physically interfered with the officers’ active investigation after
they arrived at the campsite. In addition, the State has failed to
24 People v. Vargas, 179 Misc. 2d 236, 684 N.Y.S.2d 848 (1998); People
v. Ravizee, 146 Misc. 2d 679, 552 N.Y.S.2d 503 (1990); Simon, supra
note 22.
25 4 Charles e. Torcia, Wharton’s Criminal Law § 567 at 268 (15th
ed. 1996).
26 Vargas, supra note 24, 179 Misc. 2d at 238, 684 N.Y.S.2d at 850 (empha-
sis omitted).
27 People v. Lupinacci, 191 A.D.2d 589, 595 N.Y.S.2d 76 (1993); Vargas,
supra note 24; Joseph, supra note 22.
28 brief for appellee at 11.
STATe v. SToLeN 	557
Cite as 276 Neb. 548

show how Stolen’s conduct obstructed, impaired, or perverted
their investigation into the cause of Willis’ death.
The State did not contend that during the investigation, Stolen
lied to investigators about minors consuming alcohol. Junge
knew that minors at the campsite had been drinking or were
under the influence. And he did not testify that anyone had lied
to him about this fact. Nor has the State shown that discarding
beer cans deflected or interfered with the investigation into the
cause of Willis’ death. Junge admitted that he was unaware of
any attempt by investigators to retrieve or discover physical
evidence showing that the campers had consumed alcohol. The
investigators’ determination that Willis had consumed alcohol
before his death was based on the medical examiner’s report,
not the presence of beer cans at the campsite.
Unless a defendant’s physical interference is firmly teth-
ered to an officer’s active performance of a duty, an obstruc-
tion charge could potentially be linked to any preinvestigation
conduct regarding any offense that the officer uncovers during
an investigation. Here, for example, the complaint failed to
allege the government operation with which Stolen’s conduct
allegedly interfered. The court instructed the jury that it must
find Stolen intentionally obstructed government operations. but
here the jury could have concluded that his intent to obstruct
was tied to the offense of procuring alcohol for minors—not
the officers’ investigation of Willis’ death.
[9] We do not consider here whether these facts support a
conviction for tampering with evidence under § 28-922; the
State did not charge that offense. As we recognized in Fahlk,
these are separate offenses covering different conduct. The
comments to Model penal Code § 242.1 state that this section
is intended as a supplement to other crimes proscribing interfer-
ence with government operations, e.g., bribery, perjury, tamper-
ing, and falsification.29 The American Law Institute’s comments
to § 242.1 similarly clarify that the other unlawful act compo-
nent of § 28-901 must be shown by an act that is unlawful
independent of a purpose to obstruct government operations.30
29 See Model penal Code, supra note 8.
30 See Model penal Code and Commentaries, supra note 21.
558 	276 NebRASKA RepoRTS

CoNCLUSIoN
We conclude that because the evidence failed to show that
Stolen committed a physical act that interfered with an officer’s
active performance of a duty, it was insufficient to support
his conviction for obstruction of government operations under
§ 28-901. We therefore reverse the decisions of the Court
of Appeals and the district court, which affirmed the county
court’s decision. We remand the cause with directions to the
Court of Appeals to remand the cause to the district court with
directions to vacate Stolen’s conviction and sentence and to
remand the cause to the county court for dismissal.
reverSed aNd remaNded WitH direCtioNS.
pAVeRS, INC. v. boARD oF ReGeNTS 	559
Cite as 276 Neb. 559
paverS, iNC., a N ebraSka CorporatioN, appellee aNd
CroSS- appellaNt , v . board of regeNtS of tHe
uNiverSity of N ebraSka , a publiC body
Corporate of tHe S tate of N ebraSka ,
appellaNt aNd CroSS- appellee .
755 N.W.2d 400
Filed September 12, 2008. 	No. S-07-671.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional is a question of law; accordingly, the Nebraska Supreme Court is obligated
to reach a conclusion independent of the decision reached by the court below.
2. Contracts: Appeal and Error. The interpretation of a contract involves a ques-
tion of law, in connection with which an appellate court has an obligation to reach
its conclusions independently of the determinations made by the court below.
3. Contracts. The meaning of a contract and whether a contract is ambiguous are
questions of law.
4. Judgments: Appeal and Error. In a bench trial of a law action, a trial court’s
factual findings have the effect of a jury verdict and will not be set aside on
appeal unless clearly erroneous. The appellate court does not reweigh the evi-
dence but considers the judgment in a light most favorable to the successful party
and resolves evidentiary conflicts in favor of the successful party, who is entitled
to every reasonable inference deducible from the evidence.
5. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitu-
tional, and all reasonable doubts will be resolved in favor of its constitutionality.
6. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitu-
tionality of a statute is on the one attacking its validity.
7. Contracts. When the terms of a contract are clear, they are to be accorded their
plain and ordinary meaning.