State v. Graff

State of NebraSka , appellee , v.
terry Jay G raff, appellaNt.
810 N.W.2d 140
Filed November 18, 2011. 	No. S-11-158.
1. Courts: Appeal and Error. The district court and higher appellate courts gener-
ally review appeals from the county court for error appearing on the record.
2. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach a conclusion independent
of the one reached by the lower court.
3. Statutes. Statutory language is to be given its plain and ordinary meaning.
4. Criminal Law: Statutes. A fundamental principle of statutory construction
requires that penal statutes be strictly construed.
5. Motions to Dismiss: Directed Verdict: Waiver: Convictions: Appeal and
Error. A defendant who moves for dismissal or a directed verdict at the close of
the evidence in the State’s case in chief in a criminal prosecution, and who, when
the court overrules the dismissal or directed verdict motion, proceeds with trial
and introduces evidence, waives the appellate right to challenge correctness in the
trial court’s overruling the motion for dismissal or a directed verdict. However,
the defendant may still challenge the sufficiency of the evidence.
Appeal from the District Court for Brown County, M ark
D. koziSek, Judge, on appeal thereto from the County Court
for Brown County, JaMeS J. orr, Judge. Judgment of District
Court reversed, and cause remanded with directions.
Bradley D. Holtorf, of Sidner, Svoboda, Schilke, Thomsen,
Holtorf, Boggy, Nick & Placek, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
H eavicaN, 	c.J., 	WriGHt, 	coNNolly, 	G errarD, 	StepHaN,
MccorMack, and M iller-lerMaN, JJ.
H eavicaN, C.J.
INTRODUCTION
Terry Jay Graff was convicted of violating a protection order
and was sentenced to 12 months’ probation. The issue pre-
sented by this appeal is whether a defendant can be convicted
of knowingly violating a protection order of which he has
actual notice if the defendant was not personally served with
746 	282 NeBRASkA RePORTS
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that order. We conclude that personal service is required by the
statute and accordingly reverse, and remand with directions.
FACTUAL BACkGROUND
Graff and his wife were divorced in 2008. Due to problems
between the couple concerning visitation with their children,
Graff’s ex-wife sought a protection order in the Brown County
District Court, and an ex parte order was entered on July 1,
2009. A hearing was held on July 16. Graff, represented by
counsel, and his ex-wife, pro se, were in attendance at the
hearing. During the hearing, the parties stipulated to the entry
of a mutual harassment protection order and stipulated that
only contact relating to the parties’ minor children should be
allowed. A permanent order was entered by the county court
judge on August 31. The order indicates that a copy was mailed
to Graff and his counsel, as well as to his ex-wife, and that a
copy was given to the Brown County sheriff.
On November 1, 2009, Graff’s ex-wife arrived at Graff’s
residence to pick up one of the parties’ children. During the
course of the pickup, an altercation arose between Graff and
his ex-wife. Graff refused to allow the parties’ child to leave.
Graff then retrieved a baseball bat and swung the bat in the
vicinity of his ex-wife’s car and pushed his ex-wife’s head with
the bat through the vehicle’s open window. Graff also verbally
attacked his ex-wife.
Law enforcement was contacted, and Graff was arrested.
At trial, Graff’s ex-wife testified to the above facts. At the
conclusion of the State’s case in chief, Graff moved to dis-
miss, contending that he had not been personally served with
the protection order as required by statute. That motion was
denied. Graff was subsequently found guilty and sentenced to
12 months’ probation. He appealed to the district court, which
affirmed. He now appeals to this court.
ASSIGNMeNT OF eRROR
Graff assigns that the county court and district court both
erred in finding that he knowingly violated a protection order.
STATe v. GRAFF 	747
Cite as 282 Neb. 746

STANDARD OF ReVIeW
[1,2] The district court and this court review appeals from
the county court for error appearing on the record.1 Statutory
interpretation presents a question of law, for which an appellate
court has an obligation to reach a conclusion independent of
the one reached by the lower court.2
ANALYSIS
Graff’s only argument on appeal is that both the county and
district courts erred in finding that he knowingly violated a
protection order. The basis of this argument is Graff’s assertion
that the State’s failure to have the protection order personally
served upon him is fatal to his conviction for violating the
order. The precise issue presented by this appeal is whether
personal service is an element of the crime of knowingly vio-
lating a protection order. We conclude that it is.
Neb. Rev. Stat. § 28-311.09 (Reissue 2008) governs harass-
ment protection orders. That section provides:
(1) Any victim who has been harassed as defined by
section 28-311.02 may file a petition and affidavit for a
harassment protection order as provided in subsection
(3) of this section. Upon the filing of such a petition and
affidavit in support thereof, the judge or court may issue
a harassment protection order without bond enjoining the
respondent from (a) imposing any restraint upon the per-
son or liberty of the petitioner, (b) harassing, threatening,
assaulting, molesting, attacking, or otherwise disturbing
the peace of the petitioner, or (c) telephoning, contacting,
or otherwise communicating with the petitioner.
. . . .
(4) A petition for a harassment protection order filed
pursuant to subsection (1) of this section may not be with-
drawn except upon order of the court. An order issued
pursuant to subsection (1) of this section shall specify that
it is effective for a period of one year unless otherwise
1 First Nat. Bank of Unadilla v. Betts, 275 Neb. 665, 748 N.W.2d 76
(2008).
2 See State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).
748 	282 NeBRASkA RePORTS

modified by the court. Any person who knowingly violates
an order issued pursuant to subsection (1) of this section
after service shall be guilty of a Class II misdemeanor.
. . . .
(8) Upon the issuance of any harassment protection
order under this section, the clerk of the court shall
forthwith provide the petitioner, without charge, with
two certified copies of such order. The clerk of the court
shall also forthwith provide the local police department
or local law enforcement agency and the local sheriff’s
office, without charge, with one copy each of such order
and one copy each of the sheriff’s return thereon. The
clerk of the court shall also forthwith provide a copy of
the harassment protection order to the sheriff ’s office in
the county where the respondent may be personally served
together with instructions for service. Upon receipt of the
order and instructions for service, such sheriff ’s office
shall forthwith serve the harassment protection order
upon the respondent and file its return thereon with the
clerk of the court which issued the harassment protection
order within fourteen days of the issuance of the harass-
ment protection order. If any harassment protection order
is dismissed or modified by the court, the clerk of the
court shall forthwith provide the local police department
or local law enforcement agency and the local sheriff’s
office, without charge, with one copy each of the order of
dismissal or modification.3
[3,4] We begin with a few familiar principles of statutory
construction. Statutory language is to be given its plain and
ordinary meaning.4 A fundamental principle of statutory con-
struction requires that penal statutes be strictly construed.5 In
applying these principles to this case, we read the language in
question as requiring both intent—in that the crime of violating
a protection order must be done knowingly—and service. We
3 § 28-311.09 (emphasis supplied).
4 State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
5 State v. Huff, ante p. 78, 802 N.W.2d 77 (2011).
STATe v. GRAFF 	749
Cite as 282 Neb. 746

must conclude that in this instance, service, which is defined
by § 28-311.09(8) solely as personal service, is specifically
required by the statute and hence is an element of the crime.
This decision is consistent with the decision of the Court of
Appeals in State v. Patterson,6 which presented a similar issue
under the Protection from Domestic Abuse Act. We acknowl-
edge the logic of the State’s argument that Graff’s actual
knowledge of the entry of the order should be sufficient. But
we are constrained by the words of the statute as chosen by
the Legislature.
[5] We further reject the State’s argument that Graff waived
his argument on this point because he failed to renew his
motion to dismiss at the close of the case. It is true that a
defendant who moves for dismissal or a directed verdict at the
close of the evidence in the State’s case in chief in a criminal
prosecution, and who, when the court overrules the dismissal
or directed verdict motion, proceeds with trial and introduces
evidence, waives the appellate right to challenge correctness
in the trial court’s overruling the motion for dismissal or a
directed verdict.7 However, the defendant may still challenge
the sufficiency of the evidence.8 And in this case, we read
Graff’s assignment of error and argument as a challenge to the
sufficiency of the evidence against him.
Because personal service was required, but did not occur, we
must conclude that there was insufficient evidence to convict
Graff. His conviction should therefore be reversed.
CONCLUSION
The district court’s judgment is reversed. The cause is
remanded to the district court with instructions to reverse the
county court’s judgment and remand the case to the county
court with instructions to dismiss the charge.
reverSeD aND reMaNDeD WitH DirectioNS.
WriGHt, J., not participating in the decision.
6 State v. Patterson, 7 Neb. App. 816, 585 N.W.2d 125 (1998).
7 State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005).
8 See id.
750 	282 NeBRASkA RePORTS