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State v. Armagost

Supreme Court of Nebraska

June 19, 2015

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

Page 418

Petition for further review from the Court of Appeals, INBODY, RIEDMANN , and BISHOP, Judges, on appeal thereto 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, Laura Nigro, and Erin E. Tangeman for appellee.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MILLER-LERMAN, and CASSEL, JJ. McCORMACK, J., participating on briefs.

OPINION

Page 419

[291 Neb. 118] Wright, J.

NATURE OF CASE

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

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 [291 Neb. 119] 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

Page 420

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 ...


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