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STATE v. GOMEZ

Cite as 305 Neb. 222

State of Nebraska, appellee, v. 

Domingo Gomez III, appellant.

___ N.W.2d ___

Filed March 6, 2020. No. S-19-369.

1. Convictions: Evidence: Appeal and Error. When reviewing a criminal 

conviction for sufficiency of the evidence to sustain the conviction, the 

relevant question for an appellate court is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a 

reasonable doubt.

2. Criminal Law: Statutes: Legislature. In Nebraska, all crimes are statutory and no act is criminal unless the Legislature has in express terms 

declared it to be so.

Appeal from the District Court for Scotts Bluff County, Leo 

P. Dobrovolny, Judge, on appeal thereto from the County 

Court for Scotts Bluff County, James M. Worden, Judge. 

Judgment of District Court affirmed.

Darin J. Knepper, Deputy Scotts Bluff County Public 

Defender, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.

Papik, J.

Domingo Gomez III challenges his conviction for violating a domestic abuse protection order. He contends that his 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/22/2020 01:08 AM CDT
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conviction must be reversed because the service return the 

State introduced at trial did not specifically state that Gomez 

was served with the protection order he allegedly violated. 

We affirm his conviction. While the State was required to 

show that Gomez was personally served with the protection order, we find there was sufficient evidence of personal service.

BACKGROUND

County Court Bench Trial.

The State charged Gomez in county court with violating a 

domestic abuse protection order, which generally prohibited 

him from communicating with Michaela Arellano, the mother 

of his child. Evidence introduced at the subsequent bench trial 

showed that the district court for Scotts Bluff County entered 

an ex parte domestic abuse protection order against Gomez 

on November 28, 2017. The ex parte protection order, among 

other things, prohibited Gomez from “telephoning, contacting, 

or otherwise communicating with” Arellano, except to arrange 

visitation with the parties’ minor child. Gomez was personally 

served with the ex parte protection order a few days after it 

was entered.

After Gomez did not appear at a subsequent hearing and 

show cause why the ex parte protection order should be 

rescinded, the district court entered an order affirming the ex 

parte protection order on December 28, 2017. The order stated 

that it would remain in effect for a period of 1 year from the 

date the ex parte protection order was entered.

Much of the evidence at trial concerned whether Gomez 

was personally served with the order affirming the ex parte 

protection order. Over Gomez’ objections, the county court 

received exhibit 3, which included a cover sheet and a service return, both bearing the document identification number 

“71215” and both listing Arellano and Gomez as the parties 

in the civil case that resulted in the entry of the protection 

order at issue. The cover sheet instructed the Scotts Bluff 
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County sheriff to “serve the following certified copies: Order 

Affirming Domestic Abuse Protection Order with Ex Parte 

Order attached.” The service return, signed by Matt Dodge, 

certified that on January 4, 2018, Gomez was served with 

“Doc. No. 71215 a Cover Sheet with attachments” by personal 

service. The service return indicated that service was completed at “the hospital.”

The county court also received exhibit 4 over Gomez’ objections. Exhibit 4 contained a certified copy of the cover sheet 

described above, the order affirming the ex parte protection 

order, and the ex parte protection order.

The State also called Dodge to testify. Dodge, a deputy 

sheriff with the Scotts Bluff County sheriff’s office, testified 

that he had previously served Gomez with legal papers. He 

recalled that after unsuccessful attempts to contact Gomez at 

his home, he met Gomez at a local hospital and “gave him 

the papers.” Dodge testified that he signed the service return 

in exhibit 3. He also testified that he did not serve Gomez 

with just the cover sheet, but that he served Gomez with the 

attachments to the cover sheet reflected in exhibit 4—the order 

affirming the ex parte protection order and the ex parte protection order.

Arellano also testified at trial regarding calls Gomez made 

to her in February 2018. She testified that these calls were not 

for the purpose of arranging visitation with their child.

At the conclusion of evidence in the bench trial, counsel for 

Gomez argued that Gomez could not be convicted, because the 

service return did not specifically state that Gomez had been 

served with the order affirming the ex parte protection order.

The county court found Gomez guilty and sentenced him 

accordingly. It explained on the record that in its view, the 

State demonstrated beyond a reasonable doubt that Gomez was 

served with the order affirming the ex parte protection order 

and that he subsequently contacted Arellano for purposes unrelated to child visitation in violation of that order.
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Appeal to District Court.

Gomez appealed his conviction to the district court. He contended that there was insufficient evidence that he was personally served with the protection order.

The district court affirmed his conviction. It observed that 

Gomez had not identified any law requiring that the return of 

service specifically identify each document that was served and 

concluded that there was sufficient evidence that Gomez was 

personally served with the protection order.

ASSIGNMENT OF ERROR

Gomez assigns one error on appeal. He contends, rephrased, 

that the district court erred by finding there was sufficient evidence that he was personally served with the order affirming 

the ex parte protection order.

STANDARD OF REVIEW

[1] When reviewing a criminal conviction for sufficiency of 

the evidence to sustain the conviction, the relevant question 

for an appellate court is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt. State v. Stubbendieck, 302 Neb. 

702, 924 N.W.2d 711 (2019).

ANALYSIS

Gomez argues that his conviction must be overturned because 

the State introduced insufficient evidence that he was served 

with the order affirming the ex parte protection order. Gomez’ 

argument rests on two propositions: (1) that personal service 

of the protection order is an essential element of the crime of 

which he was convicted and (2) that the record contains insufficient evidence of such personal service. As we will explain, 

we generally agree with Gomez on the former proposition but 

disagree on the latter.
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Elements of Offense.

Gomez was charged with and convicted of violating Neb. 

Rev. Stat. § 42-924(4) (Cum. Supp. 2018). That subsection 

provides as follows:

Any person who knowingly violates a protection order 

issued pursuant to this section or section 42-931 after 

service or notice as described in subsection (2) of section 

42-926 shall be guilty of a Class I misdemeanor, except 

that any person convicted of violating such order who has 

a prior conviction for violating a protection order shall be 

guilty of a Class IV felony.

[2] In Nebraska, all crimes are statutory, and no act is criminal unless the Legislature has in express terms declared it to 

be so. State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019). 

Accordingly, to determine the elements of a crime, we look to 

the text of the operative statute. Id. Section 42-924(4) makes 

the knowing violation of certain protection orders a crime. By 

its terms, the statute requires proof of the following: (1) service 

or notice as described in Neb. Rev. Stat. § 42-926(2) (Reissue 

2016) and (2) a subsequent knowing violation of a qualifying 

protection order. Because the crime can be established with 

proof of either service or the notice described in § 42-926(2), 

it is not technically accurate to describe service alone as an 

essential element of the crime. We do read the statute, however, 

to make either service or the notice described in § 42-926(2) an 

essential element.

This reading of § 42-924(4) is consistent with our decision 

in State v. Graff, 282 Neb. 746, 810 N.W.2d 140 (2011). In 

Graff, we interpreted substantively similar language in a statute 

governing harassment protection orders to allow for a criminal conviction upon a showing that a defendant knowingly 

violated a protection order after service. See Neb. Rev. Stat. 

§ 28-311.09(4) (Reissue 2008).

We also concluded in Graff that personal service was 

required because the statute governing service of harassment 

protection orders required it. See § 28-311.09(9)(a). Similar 
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language requires personal service of domestic abuse protection orders. See § 42-926(1). Following our reasoning in Graff, 

we conclude that in cases alleging a violation of § 42-924(4), 

in which the defendant does not receive the notice described 

in § 42-926(2), the State must demonstrate that the defendant 

was personally served with the protection order.

Sufficiency of Evidence 

of Personal Service.

While we agree with Gomez that the State was required 

to demonstrate that he was personally served with the order 

affirming the ex parte protection order, we cannot agree that 

there was insufficient evidence of such service.

According to Gomez, the only way the State could demonstrate the requisite personal service was through a service 

return. He also contends that in the service return, the officer 

must specifically certify that he or she served the protection 

order. He asserts that the service return offered into evidence 

by the State is deficient in this respect because it refers generally to a cover sheet with attachments rather than to a protection order.

In support of his argument that the State must prove 

service in this particular way, Gomez relies on language in 

§ 42-926(1) providing that once a domestic abuse protection 

order is issued, the clerk of the court is to give it to the sheriff’s office and that upon receipt, the sheriff’s office “shall 

forthwith serve the protection order upon the respondent and 

file its return thereon with the clerk of the court which issued 

the protection order within fourteen days of the issuance of 

the protection order.” Because the service return here does 

not refer specifically to service of a protection order, Gomez 

claims that the sheriff’s office did not “file its return thereon,” 

as provided in § 42-926.

Gomez’ reliance on the provisions in § 42-926 regarding the return of service is misplaced. As discussed above, 

§ 42-924(4) allows a defendant to be convicted if he or she 
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knowingly violates a domestic abuse protection order after 

service of the protection order. Gomez is essentially asking us 

to make punctilious compliance with the service return provisions of § 42-926(1) an essential element of the crime defined 

in § 42-924(4). But because § 42-924(4) says nothing about 

the return of service, such an interpretation would run counter 

to our practice of strictly construing penal statutes and not 

supplying missing words or sentences to make clear that which 

is indefinite, or to supply that which is not there. See State v. 

Duncan, 294 Neb. 162, 882 N.W.2d 650 (2016).

We note that it is far from anomalous to permit a party to 

prove service of civil process even if the process server fails 

to comply with statutory direction regarding the service return. 

Both a Nebraska civil procedure statute and the Federal Rules 

of Civil Procedure provide that the failure to make proof of 

service or delay in doing so does not affect the validity of the 

service. See, Neb. Rev. Stat. § 25-507.01 (Reissue 2016); Fed. 

R. Civ. P. 4(l)(3). Such provisions “prevent[] a defendant who 

has been properly served from attacking the validity of service 

on the technical ground of the process server’s failure to make 

return in timely fashion, or because the return is deficient in 

some way.” 4B Charles Alan Wright et al., Federal Practice 

and Procedure § 1130 at 210-11 (4th ed. 2015). The fact that 

§ 42-924(4) allows a defendant to be convicted of violating a 

domestic abuse protection order upon a showing of service, 

as opposed to proper return of service, serves the same function here.

This leaves only the question of whether there was sufficient evidence that Gomez was served with the order affirming the ex parte protection order. On this question, we do not 

hesitate to find that there was. The face of the cover sheet 

indicates that the sheriff’s office was instructed to serve the 

order affirming the ex parte protection order and the ex parte 

protection order. Dodge testified that he met Gomez at a local 

hospital and that he provided Gomez with the attachments 

to the cover sheet in exhibit 4, i.e., the order affirming the 
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ex parte protection order and the ex parte protection order. 

Dodge also testified that he signed the service return indicating he served the cover sheet and attachments on Gomez at a 

hospital on January 4, 2018. Viewing this evidence in the light 

most favorable to the prosecution, a rational trier of fact could 

find beyond a reasonable doubt that Gomez was served with 

the order affirming the ex parte protection order.

CONCLUSION

Finding no merit in the sole assignment of error, we affirm.

Affirmed.

Freudenberg, J., not participating.