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STATE v. GAUDREAULT

Cite as 30 Neb. App. 501

State of Nebraska, appellee, v. Aaron 

Alcide Gaudreault, appellant.

___ N.W.2d ___

Filed January 18, 2022. No. A-21-222.

1. Jury Instructions: Appeal and Error. Whether a jury instruction is 

correct is a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by 

the trial court.

2. Criminal Law: Evidence: Appeal and Error. When examining a sufficiency of the evidence claim, 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.

3. Jury Instructions: Appeal and Error. All the jury instructions must 

be read together, and if, taken as a whole, they correctly state the law, 

are not misleading, and adequately cover the issues supported by the 

pleadings and the evidence, there is no prejudicial error necessitating 

reversal.

4. ____: ____. A jury instruction which misstates the issues and has a tend

ency to confuse the jury is erroneous.

5. Jury Instructions: Proof: Appeal and Error. In reviewing a claim of 

prejudice from jury instructions given or refused, the appellant has the 

burden to show that the allegedly improper instruction or the refusal to 

give the requested instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant.

6. Jury Instructions: Appeal and Error. Jury instructions are subject 

to the harmless error rule, and an erroneous jury instruction requires 

reversal only if the error adversely affects the substantial rights of the 

complaining party.

7. Verdicts: Appeal and Error. Harmless error review looks to the basis 

on which the trier of fact actually rested its verdict; the inquiry is not 

whether in a trial that occurred without the error a guilty verdict surely 

Nebraska Supreme Court Online Library

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

01/25/2022 08:07 AM CST
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would have been rendered, but, rather, whether the actual guilty verdict 

rendered in the questioned trial was surely unattributable to the error.

8. Criminal Law: Evidence: New Trial: Appeal and Error. Upon finding reversible error in a criminal trial, an appellate court must determine 

whether the total evidence admitted by the district court, erroneously or 

not, was sufficient to sustain a guilty verdict.

9. Evidence: New Trial: Double Jeopardy: Appeal and Error. If evidence is not sufficient to sustain a verdict after an appellate court finds 

reversible error, then double jeopardy forbids a remand for a new trial.

Appeal from the District Court for Dawson County: James 

E. Doyle IV, Judge. Reversed and remanded for a new trial.

Brian J. Davis, of Davis Law, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Moore, Bishop, and Arterburn, Judges.

Bishop, Judge.

INTRODUCTION

Following a jury trial, Aaron Alcide Gaudreault was convicted of resisting arrest. The Dawson County District Court 

sentenced him to 48 months’ probation. On appeal, Gaudreault 

claims error regarding a supplemental instruction given to 

the jury in response to its question asking for a definition of 

“substantial force.” He claims that if the jury had been properly instructed, there was insufficient evidence to support his 

conviction. We agree that the district court erred regarding its 

supplemental jury instruction. And since we cannot conclude 

the error was harmless, we reverse Gaudreault’s conviction and 

remand the cause for a new trial.

BACKGROUND

On February 18, 2020, the State charged Gaudreault with 

two counts: count I, resisting arrest, second offense, in violation of Neb. Rev. Stat. § 28-904 (Reissue 2016), and count II, 

first degree trespass, in violation of Neb. Rev. Stat. § 28-520 

(Reissue 2016).
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STATE v. GAUDREAULT

Cite as 30 Neb. App. 501

A jury trial on count I, resisting arrest, was held on November 

17, 2020. The State called three law enforcement officers to 

testify. Gaudreault did not testify in his own behalf, but did 

call his mother as a witness. Additionally, a DVD containing 

footage from one law enforcement officer’s body camera was 

received into evidence without objection.

Officer Bradley Peltier with the Cozad Police Department 

testified that on January 5, 2020, he received a call from dispatch in reference to an individual who was trespassing at an 

apartment. He went to the apartment and had contact with the 

complainant who advised that the suspect was Gaudreault, 

but that Gaudreault was no longer there. Gaudreault’s vehicle 

was subsequently located at his mother’s house in Cozad, 

Nebraska. Officers Peltier and Thomas Twyford arrived at that 

residence within 1 or 2 minutes of each other. They approached 

the front door, and Officer Peltier knocked while Officer 

Twyford stood a couple feet back; both were wearing their 

uniforms and badges. When Gaudreault came to the door, he 

was eating. Officer Peltier accused him of trespassing, which 

Gaudreault denied. Officer Peltier made the decision to arrest 

Gaudreault after seeing his behavior and how he was acting; 

Gaudreault also told Officer Peltier to “buzz the fuck off.” 

Officer Peltier told Gaudreault that he was under arrest and 

that he should put down the food he was eating. Officer Peltier 

grabbed Gaudreault by the wrist, but Gaudreault tried to pull 

away. Officer Peltier then pulled Gaudreault onto the porch 

and onto the ground.

Officer Peltier was wearing a body camera during the interaction, and a DVD of the footage was received into evidence 

and played for the jury. While playing the DVD, the State 

repeatedly paused the video in order to ask Officer Peltier 

questions to describe what was happening. The State’s questions and Officer Peltier’s responses were as follows:

Q. (By [the State]) Now, Officer Peltier, this is your 

body camera, so this is your view, is that correct?

A. Yes.
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Cite as 30 Neb. App. 501

Q. Who is that that just came into the scene?

A. That’s Officer Twyford.

Q. Thank you.

(Video resumed.)

(Video paused.)

Q. . . . At this moment, are you attempting to place 

handcuffs on Mr. Gaudreault, Officer Peltier?

A. Correct, yes.

Q. And, you know, what we can’t see is, you know, 

the physical sensations that you’re experiencing. What do 

you feel as you are having contact with him as you’re trying to put cuffs on him?

A. He’s constantly pulling away, not allowing me to 

place his hands behind his back.

Q. Did it feel like he was using much strength to pull 

away?

A. I believe it was probably all of his strength to try to 

pull away.

Q. And at this point, did — was substantial force 

required on your part to try to get his other hand cuffed 

as shown in the video?

A. Correct. The porch there was confined space, so 

he kept rolling to where his arm without the cuff on was 

under him and unable to be grabbed to place him in the 

cuffs.

(Video resumed.)

(Video paused.)

Q. . . . So, at this time, only one hand is cuffed, is that 

correct?

A. Correct, yes.

Q. So, what are you doing?

A. Moving to the bottom of the walkway there, to the 

porch so that we had more room to be able to place him 

in cuffs.

Q. Was there further difficulty after you got down to 

that lower area?
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Cite as 30 Neb. App. 501

A. He still pulled. He pulled and kicked the entire time.

(Video resumed.)

(Video paused.)

Q. . . . And at this point, it appears both of his hands 

are cuffed now, is that correct?

A. Correct, yes.

(Video resumed.)

(End of video.)

Q. . . . Officer Peltier, when you first told Mr. 

Gaudreault up [sic], you know, in the threshold there that 

he was under arrest, it seems that you reached for his 

arms, is that correct?

A. Correct, yes.

Q. And describe what physical sensation you felt when 

you did that?

A. He pulled like he was going to run back into the 

residence at that point.

Q. He pulled his arm away from you?

A. Yes, correct.

Q. And I think I already asked you this. Were you 

wearing your uniform, displaying your badge?

A. Yes, I was.

Q. And at that time, were you acting under color of 

your official authority as a police officer?

A. Yes.

Q. Were you focused on getting Mr. Gaudreault into 

handcuffs as a part of effecting his arrest?

A. Yes.

Q. And at what point were you able to actually handcuff him, both hands?

A. As soon as we got him pulled down to the bottom of 

the ramp up to the front door there where we could actually roll him onto his stomach and could actually effect 

the handcuffs going on both hands.

Q. Throughout that process, was he — what was he 

doing with that free arm?
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Cite as 30 Neb. App. 501

A. Curling it under his body, pulling it away, trying not 

to allow us to put that free arm behind his back.

Q. And so, again, did you feel that substantial force 

was required on the part of you and Officer Twyford to 

overcome Mr. Gaudreault’s efforts to place handcuffs 

on him?

A. Yes.

Q. When you were trying to place handcuffs on him. 

At any time throughout this process, I think you may have 

mentioned this earlier, but was Mr. Gaudreault hitting or 

kicking at or towards you or Officer Twyford?

A. He kicked at me several times as we were taking 

him from up by the front door down to the bottom of the 

ramp, he was trying to kick me.

Q. Did he ever connect with you?

A. A couple times.

Q. And is it your testimony that all these events occurred 

here in Dawson County on January 5th of this year?

A. Yes, sir.

Officer Peltier stated that, at the time of the interaction, 

Gaudreault had “the odor of an alcoholic beverage on his person[,] [a]nd, based upon prior contact with him, he appeared to 

be intoxicated by something.”

On cross-examination, Officer Peltier was asked what he 

meant when he said he had to use “substantial force.” He 

responded that it involved the “pulling, muscling, and the wrist 

lock” to get Gaudreault’s hands behind his back. When asked 

what was the “physical force” that Gaudreault used against 

him, Officer Peltier responded, “Oh, resisting, pulling away, 

not allowing his hands to be placed behind his back to be put 

in handcuffs.” Officer Peltier said he had Gaudreault’s left 

wrist in a wrist lock, but Gaudreault “was curling his right 

arm underneath him” so that Officer Peltier could not grab it, 

and “Officer Twyford was trying to grab that arm and pull it 

behind his back.” Officer Peltier was also asked about getting 

Gaudreault into the police car:
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Cite as 30 Neb. App. 501

Q. [(by defense counsel)] And the second handcuff is 

put on. And does Mr. Gaudreault voluntarily stand up or 

did you lift him up?

A. We lifted him up.

Q. Did he walk to the police car, then?

A. No.

Q. Did you give him that option?

A. Yes.

Q. And then, did you have to shove him in the police 

car or did he get in there voluntarily?

A. Semi-voluntarily.

Officer Twyford also testified about his January 5, 2020, 

contact with Gaudreault. Officer Twyford was assisting Officer 

Peltier in regard to a possible trespassing. They made contact 

with Gaudreault at the front door; Officer Peltier explained the 

reason the officers were there, which was the trespass at a different address. According to Officer Twyford:

Mr. Gaudreault became upset, and Officer Peltier advised 

he was under arrest. Mr. Gaudreault appeared to try to go 

back inside of the home. He was standing in the doorway 

of the home. And Officer Peltier advised him again he 

was under arrest and pulled him outside to the front porch 

area, at which point, Mr. Gaudreault began trying to pull 

away and keep us from controlling him.

Officer Twyford explained that once Gaudreault was outside 

of the house, the officers’ objective was to control him and 

place him in handcuffs. Gaudreault “was pulling away from 

us. He was rolling, trying to roll and pull away from us and 

yelling multiple different things.” Officer Twyford was asked 

to describe what degree of strength he felt Gaudreault was 

using. He responded, “I don’t know if I’d say it’s strength. 

It was just easy for him to keep us from controlling him. He 

wasn’t actively trying to hurt us, but he was pulling away not 

letting us secure him in handcuffs or control him.” Officer 

Peltier was able to get one cuff on Gaudreault, but he was 

unable to get the second cuff secured. The area by the front 
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Cite as 30 Neb. App. 501

door was “a small area with a wooden railing and a ramp,” 

and the small area made it “harder” to control Gaudreault. The 

officers decided to take Gaudreault down the ramp to a larger 

area where it was easier to control him. Once Gaudreault was 

brought to ground level, the officers were able to secure both 

of his hands. Officer Twyford was asked what level of force 

or strength he felt that he had to exert. He responded, “I feel 

it was pretty low level of force. We just secured his hands, 

had ahold of his hands. There [were] no strikes or anything 

like that used, pressure points.” He was then asked if he felt 

like he had to use “significant muscle power to overcome Mr. 

Gaudreault’s efforts.” Officer Twyford responded, “Yes, I’d 

say so, yes.” Officer Twyford did not recall being kicked by 

Gaudreault. The officers escorted Gaudreault to a law enforcement vehicle, and “there was some slight resistance” from 

him to get in the vehicle, but he did get in. Officer Twyford 

believed that Gaudreault was intoxicated during their inter

action that day, stating, “I’ve had multiple contacts with Mr. 

Gaudreault, and at this contact, he was slurring his speech and 

seemed unsteady on his feet.”

Deputy Chad Byrne with the Dawson County sheriff’s office 

testified that on January 5, 2020, he overheard a call on the 

radio referencing a possible drunk driver leaving a residence 

in Cozad, so he went to see if the Cozad Police Department 

needed help. Upon arriving at the residence, Deputy Byrne 

observed Officers Peltier and Twyford on the ground with 

Gaudreault and there “appeared” to be a struggle to get handcuffs on him. The deputy testified that the “objective of handcuffing is to handcuff him behind his back,” but Gaudreault 

“[w]asn’t following instructions in giving [the officers his] 

hands and [was] forcefully keeping them in front.” From 

his vantage point, the deputy could not tell if Gaudreault 

was moving around, but Gaudreault was yelling. The deputy 

exited his vehicle and ran up to them, but by that time, the 

officers had Gaudreault in handcuffs on the ground. The officers assisted Gaudreault in standing up. To Deputy Byrne’s 
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knowledge, there was no one else outside besides the officers 

and Gaudreault. The deputy offered to transport Gaudreault, 

who appeared to be intoxicated, to the Dawson County jail. 

The officers “underhooked [Gaudreault] and forcibly brought 

him to [the deputy’s] vehicle” for transport. During transport, 

Gaudreault was “verbally combative.”

Gaudreault’s mother testified that Gaudreault came to her 

home “late in the evening” on January 5, 2020, when she was 

already in bed. She “didn’t really pay any attention [to him] 

until he said, ‘Help. Mom.’” She then went into the living 

room and saw officers were there. The mother said:

I came into the room and I didn’t really see much. What 

I remember seeing is that he was, just kind of went limp 

and the police officers were dragging him out the door 

and down the ramp. And he was prone. He was on his 

back or side or something. I don’t know.

She did not see Gaudreault hit or try to kick an officer, and 

she did not see him try to run away. Gaudreault “was kind of 

passive, crying and wanted me to help him, but I wasn’t any 

help.” The mother did not think that Gaudreault was struggling 

with the officers. Once the officers got Gaudreault on his feet, 

he walked to the law enforcement vehicle.

After both sides presented their case, the district court 

instructed the jury and submitted the case to them for deliberation at 4:31 p.m. At 5:40 p.m., the jury submitted a written 

question to the court, asking for a definition of “substantial 

force.” The court conferred with counsel concerning the question and proposed a supplemental instruction. Gaudreault’s 

counsel objected to the proposed instruction, stating that an 

answer to the jury’s question was “probably not warranted by 

law.” The objection was overruled. The supplemental instruction was subsequently read to the jury at 6:23 p.m., and the 

jury resumed deliberations. The jury returned a guilty verdict 

10 minutes later at 6:33 p.m. Additional details regarding 

the jury question and supplemental instruction will be set forth 

in our analysis.
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On November 18, 2020, the district court entered a judgment of conviction. Following a hearing in February 2021, at 

which Gaudreault admitted the validity of his prior convictions for resisting arrest, the court sentenced Gaudreault to 48 

months’ probation for the Class IIIA felony. The probation was 

to include 70 days in jail at the beginning of probation and 20 

days in jail at the end of probation, the latter of which could be 

waived by the court if Gaudreault satisfactorily completed probation. Gaudreault was given credit for 10 days already served.

Gaudreault appeals.

ASSIGNMENTS OF ERROR

Gaudreault assigns that (1) the district court committed plain 

error in providing a supplemental instruction to the jury defining “substantial force” and (2) the evidence admitted at trial 

was insufficient to sustain a guilty verdict.

STANDARD OF REVIEW

[1] Whether a jury instruction is correct is a question of law, 

regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the trial 

court. State v. Pope, 305 Neb. 912, 943 N.W.2d 294 (2020).

[2] When examining a sufficiency of the evidence claim, 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. Dady, 

304 Neb. 649, 936 N.W.2d 486 (2019).

ANALYSIS

Gaudreault was charged and convicted of resisting arrest. 

Under § 28-904(1):

A person commits the offense of resisting arrest if, 

while intentionally preventing or attempting to prevent 

a peace officer, acting under color of his or her official 

authority, from effecting an arrest of the actor or another, 

he or she:
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(a) Uses or threatens to use physical force or violence 

against the peace officer or another; or

(b) Uses any other means which creates a substantial 

risk of causing physical injury to the peace officer or 

another; or

(c) Employs means requiring substantial force to overcome resistance to effecting the arrest.

“Substantial force” is not defined in either § 28-904 or Neb. 

Rev. Stat. § 28-109 (Reissue 2016) (terms defined for purposes 

of Nebraska Criminal Code).

Supplemental Jury Instruction

After both sides presented their case at trial, the district 

court instructed the jury. The jury was given numerous instructions, including one instruction regarding the elements of the 

charged offense. That instruction was as follows:

INSTRUCTION NO. 3

The State has charged the Defendant with one crime, 

resisting arrest.

The elements the State must prove by evidence beyond 

a reasonable doubt to convict Aaron Gaudreault of the 

crime of resisting arrest are:

1. That on or about January 5, 2020, Aaron Gaudreault;

2. intentionally prevented or attempted to prevent a 

peace officer;

3. acting under color of his official authority;

4. from effecting the arrest of Aaron Gaudreault;

5. by:

(a) using or threatening to use physical force or violence against the peace officer or another person, or

(b) use of any other means which created a substantial 

risk of causing physical injury to the peace officer or 

another person, or

(c) employing means requiring substantial force to 

overcome resistance to effecting the arrest; and,

6. that Aaron Gaudreault did so in Dawson County, 

Nebraska.
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The State has the burden of proving beyond a reasonable doubt each one of the foregoing elements necessary 

for conviction, and this burden never shifts.

If you find from the evidence beyond a reasonable 

doubt that each of the foregoing elements is true, it is 

your duty to find the Defendant guilty of resisting arrest, 

mark an “X” in the verdict form where appropriate, stop 

your deliberations and notify the bailiff. If you find the 

State did not so prove, then you must find the Defendant 

not guilty of resisting arrest, mark an “X” in the verdict 

form where appropriate, stop your deliberations and notify 

the bailiff.

(Emphasis in original.) Instruction No. 4 included definitions 

for the terms “arrest,” “intent,” “intentionally,” “knowingly,” 

and “peace officer.” Instruction No. 5 instructed the jury on the 

meaning of proof beyond a reasonable doubt. After instructing the jury, the court submitted the case to the jury for 

deliberation.

Slightly over an hour into its deliberations, the jury submitted a written question asking, “What is defined as substantial force[?]”

While outside the presence of the jury, the district court had 

a conference with both counsel, as well as Gaudreault, on the 

court’s proposed supplemental instruction in response to the 

jury’s question. The court’s proposed instruction stated, “‘By 

substantial is meant, real, not imaginary, illusory. Whether any 

particular conduct described by a witness or evidenced by a 

video recording was substantial force is a matter solely within 

the duty of the jury to determine the facts.’” The State had no 

objection to the proposed instruction. However, Gaudreault’s 

counsel objected, stating, “We feel as though in the absence 

of a definition that I’ve been able to find in case law that this 

question — the answer to this question is probably not warranted by law. We’d ask — I want the objection noted for 

the record.” The court responded, “All right, the objection’s 

been considered. The words I’ve used, ‘By substantial is meant 
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real, not imaginary, or illusory,’ is based on my understanding 

of the word substantial, meaning having substance and not 

being real (sic) or imagined. So, that’s why that’s included. 

The objection’s overruled.” Counsel for the State, as well as 

Gaudreault and his counsel, all waived their right to be present 

when the court read the instruction to the jury.

We take a moment to note that due to the COVID-19 pandemic, the jury remained in the courtroom for its deliberations 

and breaks while everyone else was kept out of the courtroom. 

The jury had previously been informed that restrooms were in 

the hallway and in the jury room. This resulted in at least one 

juror being in the jury room where a dictionary was located.

When the district court met with the jury to provide the 

supplemental instruction, the following colloquy took place on 

the record.

THE COURT: We’re on the record now in Case No. 

CR20-27, State of Nebraska versus Aaron Gaudreault. 

We are in the presence of the jury, the court reporter and 

the bailiff.

Members of the jury, you asked a question. I conferred 

with the lawyers and developed an answer to your question. Whenever we do this, I have to call them in to make 

sure they contribute to whatever I do. We are outside their 

presence now, because they said I could go ahead and be 

in your presence without them here.

After I got done doing this, I went to my office to go 

to the bathroom and a couple jurors went into the jury 

room. And I had left behind there one of my books that I 

was using to come up with the definition. And is Juror 66 

here? Could you come up to this microphone, sir?

You were in the jury room right after I was in the jury 

room and you were going to the restroom, I think, and I 

think you had to wait a little while and the books were 

open there. Did you look up anything in the dictionary?

JUROR #66: I started to look up that word substantial, 

but before I got it done, she came in and —
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THE COURT: The court reporter?

JUROR #66: Yeah.

THE COURT: You didn’t get to look anything up, did 

you?

JUROR #66: No, I didn’t.

THE COURT: Okay, I’m glad you didn’t.

JUROR #66: I didn’t have my glasses on, couldn’t see 

much. I was getting to the S’es.

THE COURT: Yeah, well, . . . I just want to make 

sure you didn’t look anything up, because I’d have to go 

through a different procedure if you did, okay.

All right, thank you, sir. I appreciate you, appreciate 

your honesty, as well.

The court subsequently addressed the jury, stating, “[A]fter I 

got the question from you, I met with the lawyers and I did 

some research, not just in dictionaries and books, but in cases 

that have been decided by appellate courts. And based on that, 

we’ve come up with this decision and this definition.” The 

court then stated, “You are instructed as follows: ‘By substantial is meant real, not imaginary or illusory. Whether any particular conduct described by a witness or evidenced by a video 

recording was substantial force is a matter solely within the 

duty of the jury to determine the facts.’” Ten minutes after the 

court provided the supplemental instruction to the jury, the jury 

found Gaudreault guilty of resisting arrest.

In its journal entry and judgment, the district court set forth 

the timeline of events leading up to the jury’s verdict; the 

timeline is also reflected in the record. The court stated, in 

relevant part:

At 4:00 p.m. all 12 members of the jury returned to the 

courtroom and [the jury instructions were read and] closing arguments were made. . . .

At 4:3[1] p.m. the case was submitted to the jury and 

the jury was given the case for deliberations. At 5:40 

p.m. the jury presented a question. While outside the 

presence of the jury, the court conferred with counsel 
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concerning the question on the record and in the presence of the defendant. A supplemental instruction was 

proposed by the court. The defendant’s objection to part 

of the instruction was overruled. Counsel for the plaintiff 

and defendant waived their presence at the reading of the 

instruction to the jury.

At 6:2[3] p.m. the supplemental instruction was read 

to the jury.

At 6:33 p.m. the jury advised it had reached a verdict.

Gaudreault claims that the district court erred in providing a 

supplemental instruction to the jury defining substantial force 

that was contrary to law and in violation of his constitutional 

right to due process and a fair trial.

[3] All the jury instructions must be read together, and if, 

taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the 

pleadings and the evidence, there is no prejudicial error necessitating reversal. State v. Pope, 305 Neb. 912, 943 N.W.2d 

294 (2020).

Gaudreault argues that the supplemental instruction “provided a partial definition based on the Court’s own understanding of the word ‘substantial.’” Brief for appellant at 15. The 

supplemental instruction that was given allowed the jury to 

believe that the State “showing beyond a reasonable doubt that 

any force, as long as it was not imagined or an illusion, being 

used by law enforcement to overcome resistance could result in 

a conviction.” Id. “This erroneous instruction replaced the jury 

as fact finders with the judge and enabled the jury to allow the 

[S]tate to convict Mr. Gaudreault for resisting arrest by proving 

less than what the statutory elements require in proving ‘substantial force.’” Id.

Neither “substantial” nor “substantial force” is defined in 

either § 28-904 or § 28-109; definitions of such are also absent 

in the relevant Nebraska case law. A definition of “substantial 

force” does not appear in Black’s Law Dictionary or MerriamWebster’s Collegiate Dictionary.
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However, Black’s Law Dictionary 1728 (11th ed. 2019) 

defines “substantial” as:

1. Of, relating to, or involving substance; material <substantial change in circumstances>. 2. Real and not imaginary; having actual, not fictitious, existence <a substantial 

case on the merits>. 3. Important, essential, and material; 

of real worth and importance <a substantial right>. 4. 

Strong, solid, and firm; large and strongly constructed <a 

substantial piece of Victorian furniture>. 5. At least moderately wealthy; possessed of sufficient financial means <a 

substantial supporter>. 6. Considerable in extent, amount, 

or value; large in volume or number <substantial support 

and care>. 7. Having permanence or near-permanence; 

long-lasting <the substantial presence of English-language 

books in libraries worldwide>. 8. Containing the essence 

of a thing; conveying the right idea even if not the exact 

details <a substantial portrait of the leader, even if some 

matters were slighted>. 9. Nourishing; affording sufficient nutriment <a substantial meal>.

(Emphasis omitted.) And Merriam-Webster’s Collegiate 

Dictionary 1245 (11th ed. 2014) defines “substantial” as:

1 a : consisting of or related to substance b : not imaginary or illusory : real, true c : important, essential

2 : ample to satisfy and nourish : full <a ~ meal> 3 a 

: possessed of means : well-to-do b : considerable in 

quantity : significantly great <earned a ~ wage> 4 : firmly 

constructed : sturdy <a ~ house> 5 : being largely but 

not wholly that which is specified <a ~ lie>[.]

(Emphasis omitted.) Both dictionaries include multiple meanings for the word “substantial,” but the district court chose to use 

only one meaning in its supplemental instruction even though 

more than one meaning would have been applicable to the 

case. For example, the court chose to define “substantial” only 

as “real, not imaginary or illusory.” However, “Considerable in 

extent, amount, or value,” see Black’s Law Dictionary, supra

at 1728, or “considerable in quantity : significantly great,” 
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see Merriam-Webster’s Collegiate Dictionary, supra at 1245, 

would have been relevant meanings as well.

[4] Gaudreault contends that by “using the Court’s supplemental instruction, the jury was led to believe that [it] could 

convict simply because ‘any’ force, that was not imaginary 

force, was needed by law enforcement to overcome any resist

ance.” Brief for appellant at 19. We agree. The district court 

gave a partial or incomplete definition of “substantial” in its 

supplemental jury instruction. By limiting its definition to 

“real, not imaginary or illusory,” force, the district court misled the jury to believe that it need not consider the extent or 

amount of force required by officers to overcome Gaudreault’s 

resistance. A jury instruction which misstates the issues and has 

a tendency to confuse the jury is erroneous. State v. Clausen, 

307 Neb. 968, 951 N.W.2d 764 (2020). However our analysis 

does not conclude here. We must also consider whether the 

erroneous jury instruction was harmless.

[5] In reviewing a claim of prejudice from jury instructions 

given or refused, the appellant has the burden to show that 

the allegedly improper instruction or the refusal to give the 

requested instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant. State v. Pope, 305 

Neb. 912, 943 N.W.2d 294 (2020).

[6,7] Jury instructions are subject to the harmless error 

rule, and an erroneous jury instruction requires reversal only 

if the error adversely affects the substantial rights of the complaining party. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 

(2019). Harmless error review looks to the basis on which 

the trier of fact actually rested its verdict; the inquiry is not 

whether in a trial that occurred without the error a guilty verdict surely would have been rendered, but, rather, whether the 

actual guilty verdict rendered in the questioned trial was surely 

unattributable to the error. Id.

We are unable to say that the district court’s erroneous 

supplemental jury instruction was not harmless in this case. 

Section 28-904(1) contains three alternative subparts for 
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resisting arrest. We cannot tell from our record the extent to 

which the jury focused on § 28-904(1)(a) or (b) in reaching its 

verdict. However, it is clear on our record that the jury actively 

focused on § 28-904(1)(c), because it asked the court to define 

“substantial force.” When speaking to the jury in advance of 

presenting the supplemental instruction, the court informed 

the jury it had “conferred with the lawyers and developed 

an answer” to their question. The court also indicated it “did 

some research, not just in dictionaries and books, but in cases 

that have been decided by appellate courts. And based on that, 

we’ve come up with this decision and this definition.” The 

court thus gave the impression that both parties contributed and 

agreed to the definition, which Gaudreault’s attorney did not, 

and further, the court implied that appellate decisions also supported the definition being supplied to the jury. The court then 

instructed the jury on the definition of “substantial,” which as 

already discussed, was incomplete and potentially misleading. The jury reached its “guilty” verdict 10 minutes after 

receiving the erroneous supplemental instruction. Under these 

circumstances, we cannot say that the guilty verdict rendered 

was surely unattributable to the error. See State v. Dady, supra. 

Because the court’s erroneous supplemental jury instruction 

was not harmless, we reverse Gaudreault’s conviction for 

resisting arrest.

Sufficiency of Evidence 

and Double Jeopardy

[8,9] Upon finding reversible error in a criminal trial, an 

appellate court must determine whether the total evidence 

admitted by the district court, erroneously or not, was sufficient to sustain a guilty verdict. State v. Draper, 289 Neb. 777, 

857 N.W.2d 334 (2015). If it was not, then double jeopardy 

forbids a remand for a new trial. Id.

The elements for resisting arrest were set forth previously 

in this opinion. At trial, there was no dispute that Officers 

Peltier and Twyford were peace officers acting under color 
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of their official authority attempting to effectuate an arrest of 

Gaudreault. The question was whether Gaudreault intentionally prevented or attempted to prevent the officers from effectuating that arrest. Pursuant to § 28-904(1), Gaudreault could 

be found guilty of resisting arrest if he (a) used or threatened 

to use physical force or violence against the peace officer or 

another, (b) used any other means which created a substantial 

risk of causing physical injury to the peace officer or another, 

or (c) employed means requiring substantial force to overcome 

resistance to effecting the arrest. There was testimony given at 

trial that while the officers were attempting to place Gaudreault 

in handcuffs, he pulled away from the officers, kicked at them, 

and curled his free arm under his body so that the officers 

could not put that free arm behind his back and cuff his wrist. 

The officers had to “pull,” “muscle,” and use a “wrist lock” in 

order to get both handcuffs on Gaudreault. We conclude that 

the evidence was sufficient to sustain Gaudreault’s conviction 

for resisting arrest. Double jeopardy therefore does not preclude a new trial.

CONCLUSION

For the reasons set forth above, we reverse Gaudreault’s 

conviction and remand the cause to the district court for a 

new trial.

Reversed and remanded for a new trial.