State v. Stolen

stAte of nebrAsKA, Appellee , v . steve stolen , AppellAnt .
741 N.W.2d 168
Filed November 6, 2007. 	No. A-06-1216.
1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: 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 evidence admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction.
2. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
3. Criminal Law: Intent. Under Neb. Rev. Stat. § 28-901(1) (Reissue 1995), a per-
son commits the offense of obstructing government operations if he intentionally
obstructs, impairs, or perverts the administration of law or other governmental
functions by force, violence, physical interference or obstacle, breach of official
duty, or 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.
4. Criminal Law: Evidence: Intent. When the sufficiency of the evidence as to
criminal intent is in issue, a direct expression of intention by the actor is not
required, because the intent with which an act is committed involves a mental
process and intent may be inferred from the words and acts of the defendant and
from the circumstances surrounding the incident.
5. Criminal Law: Intent. An affirmative act of physical interference with gov-
ernment operations violates Neb. Rev. Stat. § 28-901(1) (Reissue 1995) unless
explicitly excepted, whether or not physical violence is involved.
6. Criminal Law: Intent: Police Officers and Sheriffs. Under Neb. Rev. Stat.
§ 28-901(1) (Reissue 1995), neither the failure to volunteer information nor words
intended to frustrate law enforcement are a physical act that violates the statute.
Appeal from the District Court for Dakota County, W illiAm
binKArd, Judge, on appeal thereto from the County Court for
Dakota County, douglAs luebe, Judge. Judgment of District
Court affirmed.
Robert B. Deck for appellant.
Jon Bruning, Attorney General, and erin e. Leuenberger for
appellee.
STATe v. STOLeN 	121
Cite as 16 Neb. App. 121
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

sievers , cArlson, and cAssel, Judges.
sievers, Judge.
Steve Stolen was convicted of obstructing government opera-
tions under Neb. Rev. Stat. § 28-901(1) (Reissue 1995). Stolen
claims his actions of cleaning and removing alcohol containers
from a campsite, where a young man had died, do not rise to
the level of physical interference contemplated by § 28-901(1).
Therefore, Stolen argues that the county court convicted him
upon insufficient evidence. We find that Stolen’s actions did
rise to the level of physical interference contemplated by
§ 28-901(1), and we affirm his conviction.
FACTUAL AND PROCeDURAL BACkGROUND
On July 3, 2005, Stolen was camping with a group of friends
on the property of Bradley Jochum, which property was located
on the Missouri River in Dakota County. Accompanying Stolen
was a group of about 12 people, including three minors, one of
whom was ken Willis, Jr., age 17. Stolen’s group had arrived
by boat via the river. A second group of campers, friends of
Jochum, were also camping at the site. The two groups inter-
acted, engaging in activities such as shooting fireworks, playing
volleyball, and arm wrestling. Throughout the night of July 3
and into the early morning of July 4, both groups, including the
minors in Stolen’s group, were consuming alcohol.
At approximately 2 a.m. on July 4, 2005, Stolen went to
sleep in his tent. Around 6 a.m., he was awakened by another
camper, kingsley James, who informed him that Willis had
been found dead. The campers began to panic about the fact
that there had been minors consuming alcohol and that one of
those minors was now dead. The campers, including Stolen,
began cleaning the campsite. empty alcohol containers were
placed into the boat of one of the campers, and then several of
the campers left the campsite in the boat.
The owner of the property, Jochum, was informed that Willis
had died, and Jochum called the authorities. Stolen, along with
other remaining campers, continued cleaning the campsite,
including the area where Jochum’s group had camped, placing
items such as beer cans and other alcohol containers into plastic
122 	16 NeBRASkA APPeLLATe RePORTS

garbage bags and placing the bags into the back of a pickup
truck. Around 6:30 a.m., a deputy from the Dakota County
Sheriff’s Department arrived at the site. The deputy noted that
the campers appeared to be intoxicated or hung over but that
the campsite was unusually clean. The deputy expected to find
more alcohol containers and trash than he did.
Ultimately, the State filed a complaint in the county court for
Dakota County charging Stolen with one count of obstructing
government operations and one count of procuring alcohol for
a minor. In a jury trial, Stolen was found guilty of obstructing
government operations and not guilty of procuring alcohol for
a minor. Stolen appealed the county court’s judgment to the
district court for Dakota County, which affirmed the judgment
of the county court. Stolen timely appealed.
ASSIGNMeNTS OF eRROR
Stolen assigns and argues, restated, the following errors:
(1) that there was no physical act committed which supports a
conviction for obstructing government operations and (2) that
he was convicted of obstructing government operations based
on insufficient evidence of an underlying unlawful act. While
other assignments of error were made, the above two assign-
ments are the only ones actually argued, and therefore they are
the only assignments that we will consider. To be considered
by an appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party assign-
ing the error. Eicher v. Mid America Fin. Invest. Corp., 270 Neb.
370, 702 N.W.2d 792 (2005).
STANDARD OF ReVIeW
[1] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the standard
is the same: 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 evidence admitted at trial,
STATe v. STOLeN 	123
Cite as 16 Neb. App. 121

viewed and construed most favorably to the State, is sufficient
to support the conviction. State v. Johnson, 261 Neb. 1001, 627
N.W.2d 753 (2001).
[2] On a question of law, an appellate court is obligated to
reach a conclusion independent of the determination reached by
the court below. State v. Contreras, 268 Neb. 797, 688 N.W.2d
580 (2004).
ANALYSIS
State Produced Sufficient Evidence of Obstructing Government
Operations; Stolen Committed Physical Act as
Contemplated by § 28-901(1).
[3] Section 28-901(1) states as follows:
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 force, violence, physical interference or obstacle, breach
of official duty, or 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 interfer-
ence with governmental functions.
[4] Stolen’s intent to obstruct government operations was
established by circumstantial evidence. “A direct expression of
intention by the actor is not required because the intent with
which an act is committed involves a mental process and intent
may be inferred from the words and acts of the defendant and
from the circumstances surrounding the incident.” State v.
Curlile, 11 Neb. App. 52, 58, 642 N.W.2d 517, 522 (2002).
James testified that after discovering Willis had died, the camp-
ers became concerned that minors had been drinking alcohol
at the campsite and that if law enforcement officers were to
arrive, they would see that the campsite was littered with beer
cans. It was based on this concern that Stolen removed alco-
hol containers from the campsite, according to both James
and Jochum. It can be inferred from these circumstances that
Stolen’s intent was to prevent law enforcement from knowing
that minors had been consuming alcohol at the campsite. These
124 	16 NeBRASkA APPeLLATe RePORTS

actions, when viewed in the light most favorable to the State as
we must, demonstrate that Stolen intended to obstruct govern-
ment operations.
Stolen committed the “physical interference” contemplated
by § 28-901 when he cleaned the campsite and removed the
alcohol containers. Stolen asserts that his removal of alco-
hol containers and trash does not rise to the level of physical
interference contemplated by the statute. Stolen supports this
assertion by citing State v. Fahlk, 246 Neb. 834, 524 N.W.2d 39
(1994). In Fahlk, a school superintendent produced a falsified
document which concealed that he had taken a computer printer
belonging to the school for his daughter to use. The Nebraska
Supreme Court said that these actions lacked “the element of
force or violence contemplated by § 28-901.” State v. Fahlk, 246
Neb. at 854, 524 N.W.2d at 53.
[5] however, neither Fahlk nor the case law that has followed
provides an analysis as to what degree of force or violence
rises to the level contemplated by § 28-901, nor did the Fahlk
opinion address the “physical interference” or “obstacle” com-
ponent of the statute. The Model Penal Code and Commentaries
§ 242.1, comment 3 at 204 (1980), discusses the physical
interference aspect of its obstructing government operations
provision, which is identical to the statute at issue in all mate-
rial aspects, saying that “the section reaches any affirmative
act of physical interference not explicitly excepted, whether or
not violence is involved.” A case cited in a footnote to § 242.1
demonstrates that violence is not necessary for a violation of
the statute. See Johnson v. State ex rel. Maxcy, 99 Fla. 1311,
128 So. 853 (1930) (frustrating fruit inspector’s test by salting
sample of orange juice).
[6] In 2006, the Nebraska Supreme Court said that what Fahlk
established in regard to the element of physical interference in
§ 28-901 was that “neither the failure to volunteer information
nor words intended to frustrate law enforcement are a physi-
cal act that violates § 28-901.” Nebraska Legislature on behalf
of State v. Hergert, 271 Neb. 976, 1009, 720 N.W.2d 372,
398 (2006).
here, Stolen’s acts were not simply words or a failure to vol-
unteer information. Instead, Stolen’s cleaning of the campsite
STATe v. STOLeN 	125
Cite as 16 Neb. App. 121

and removal of alcohol containers were obviously physical
acts as referenced in Hergert, supra, and as such, they fall
within the plain language of § 28-901. By the physical act of
cleaning the campsite and removing alcohol containers, Stolen
clearly intended to interfere with the Dakota County Sheriff’s
Department’s investigation into the death of Willis, which inves-
tigation Stolen knew was about to occur. The evidence was that
for a proper investigation of Willis’ death, the scene should not
be disturbed before law enforcement arrives, because doing so
interferes with the investigation of the death and its circum-
stances. There is sufficient evidence in the record to support
the trial court’s conviction of Stolen for obstructing govern-
ment operations.
Stolen’s Conviction of Obstructing Government Operations
Is Not Based on Independent Unlawful Act.
Stolen’s 	brief 	discusses 	whether 	Stolen’s 	conviction 	of
obstructing government operations was supported by an inde-
pendent unlawful act. however, because we have found that
Stolen’s conviction is supported by his physical interference
with the campsite, which in turn interfered with the investiga-
tion into Willis’ death, it is unnecessary to determine whether
Stolen committed any other unlawful acts that would support his
conviction for obstructing government operations or whether the
jury was properly instructed on such a matter.
CONCLUSION
When Stolen cleaned his campsite and removed alcohol con-
tainers from it, he committed a physical act that interfered with
the Dakota County Sheriff’s Department’s investigation of the
death of Willis. The State produced sufficient evidence to sup-
port Stolen’s conviction of obstructing government operations.
A ffirmed .
126 	16 NeBRASkA APPeLLATe RePORTS