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State v. Armagost

Court of Appeals of Nebraska

November 4, 2014

STATE OF NEBRASKA, APPELLEE,
v.
JACOB D. ARMAGOST, APPELLANT

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Appeal from the District Court for Merrick County: MICHAEL J. OWENS, Judge.

Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom & Stehlik, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and Laura A. Nigro for appellee.

INBODY, RIEDMANN, and BISHOP, Judges.

OPINION

Page 160

[22 Neb.App. 514] Riedmann, Judge.

I. INTRODUCTION

Jacob D. Armagost appeals his jury conviction for operating a motor vehicle in a willful reckless manner to avoid arrest. Armagost assigns that the district court erred in failing to direct a verdict, instructing the jury, finding sufficient evidence to support his conviction, and overruling his motion for new trial and motion for judgment notwithstanding the verdict. Finding no merit to Armagost's assigned errors, we affirm.

II. BACKGROUND

Armagost was charged in the district court for Merrick County with operating a motor vehicle in a willful reckless manner to avoid arrest. A jury trial was held, during which the following evidence was adduced:

On June 6, 2013, Central City Police Lt. Mark Hogue was stopped at the intersection of 10th Avenue and U.S. Highway 30 in Central City, Nebraska, when he observed a vehicle stopped at an intersection approximately 30 feet to his left. Lieutenant Hogue observed the driver of the vehicle for approximately 15 seconds and was " [o]ne hundred percent" certain that it was Armagost. Lieutenant Hogue testified that he had known Armagost for approximately 13 years and was very familiar with him. He estimated having seen him approximately 50 times over the years, including " [a]t least a half-dozen times, if not more," in the same particular vehicle. Lieutenant Hogue [22 Neb.App. 515] knew that the vehicle belonged to a person whom he knew to be associated with Armagost.

Lieutenant Hogue intended to initiate a traffic stop immediately, because he knew Armagost's driver's license was suspended at that time. He testified that individuals who are found to be driving under suspension are generally arrested and transported to the sheriff's office, where they are booked and released. When Lieutenant Hogue observed the vehicle turn west onto Highway 30, he pulled behind it and activated his cruiser's overhead emergency lights, which triggered its dashboard camera to begin recording. The pursuit that followed was captured on video and played for the jury at trial.

Armagost did not pull over in response to the attempted traffic stop; rather, he

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executed a quick left turn onto 11th Avenue and accelerated rapidly down a residential street. Lieutenant Hogue immediately activated his cruiser's siren and began pursuing the vehicle. There were numerous vehicles parked along the street, and recent occupants of one vehicle had to move quickly toward the curb to avoid being hit. Armagost continued down 11th Avenue for approximately four blocks, traveling at speeds up to 55 miles per hour in the 25-mile-per-hour residential zone.

Once he reached Horde Lake Road, Armagost headed eastbound out of town at speeds over 100 miles per hour. He proceeded around a " fairly decent sharp curve" in the road at approximately 80 miles per hour while two vehicles were approaching from the opposite direction. Both of those vehicles moved to the shoulder to get out of the way, and a third vehicle that was driving in front of Armagost went into the ditch. After clearing the curve, Armagost accelerated again as he approached a bridge. Lieutenant Hogue observed a parked vehicle and a woman fishing from the bridge, so he sounded his cruiser's air horn to alert the woman to move to safety.

After crossing the bridge, the pursuit continued onto a gravel road. Lieutenant Hogue was not able to keep up due to the dust trail from Armagost's vehicle ahead of him. Lieutenant Hogue described the road as " loose gravel" and testified that he was having a hard time keeping his vehicle on the road at such speeds. He decided to discontinue the pursuit [22 Neb.App. 516] primarily for safety reasons, but also because he had already identified Armagost as the driver.

On cross-examination, Lieutenant Hogue testified that Armagost was not apprehended the day of the chase. He acknowledged that he was not able to make or attempt an actual or constructive seizure of Armagost because he discontinued the pursuit. However, he later clarified that he " attempted [to seize or detain Armagost] up to the point [he] disengaged the pursuit."

At the conclusion of Lieutenant Hogue's testimony, the State rested and Armagost moved for a directed verdict. The motion was overruled. Armagost rested without presenting any evidence and then moved for a directed verdict once again at the close of all of the evidence. The motion was again overruled.

At the jury instruction conference, Armagost offered a proposed jury instruction setting forth a definition of " arrest." Defense counsel argued that it was important for the jury to know the definition of arrest so that it 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 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 ...


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