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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. CERVANTES

Cite as 306 Neb. 740

State of Nebraska, appellee, 

v. Nicole Cervantes, 

appellant.

___ N.W.2d ___

Filed August 7, 2020. No. S-19-1169.

1. Trial: Convictions: Appeal and Error. An appellate court will sustain 

a conviction in a bench trial of a criminal case if the properly admitted 

evidence, viewed and construed most favorably to the State, is sufficient 

to support that conviction.

2. Evidence: Appeal and Error. An appellate court does not resolve 

conflicts in the evidence, pass on the credibility of witnesses, evaluate 

explanations, or reweigh the evidence presented, which are within a fact 

finder’s province for disposition.

3. Trial: Convictions: Evidence. In connection with a conviction in a 

bench trial, the relevant question 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.

Appeal from the District Court for Dawson County: James 

E. Doyle IV, Judge. Affirmed.

Claude E. Berreckman, Jr., and Claire K. Bazata, of 

Berreckman, Davis & Bazata, P.C., for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

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

Papik, and Freudenberg, JJ.

Nebraska Supreme Court Online Library

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

10/16/2020 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. CERVANTES

Cite as 306 Neb. 740

Miller-Lerman, J.

I. NATURE OF CASE

Law enforcement officers returning property to the appellant, Nicole Cervantes, approached her home and were greeted 

by her husband, Casey Cervantes (Casey), against whom 

Cervantes had a protection order. Upon hearing the officers, 

Cervantes fled through a window because she was “scared 

[she] was going to get in trouble.” Law enforcement pursued 

Cervantes and found her about a block away. Following a 

bench trial in the district court for Dawson County, Cervantes 

was convicted of obstructing a peace officer. Cervantes appeals 

and claims that the evidence was insufficient to support her 

conviction. We affirm.

II. STATEMENT OF FACTS

Following an incident on September 26, 2018, at Cervantes’ 

home in Cozad, Nebraska, the State charged her with aiding 

and abetting the violation of a protection order, a Class IV 

felony in violation of Neb. Rev. Stat. § 42-924 (Reissue 2016), 

and with obstructing a peace officer, a Class I misdemeanor 

in violation of Neb. Rev. Stat. § 28-906(1) (Reissue 2016). A 

bench trial was held on June 4, 2019.

At trial, Sgt. John Peden and Officer Garrett McArdle of the 

Cozad Police Department testified that they were on duty when 

they arrived at Cervantes’ home in Cozad to return a backpack 

they had collected during a prior unrelated arrest. Peden knew 

that the residence was the home of Cervantes and intended to 

return the backpack to her. Both officers were dressed in uniform and displayed their badges.

McArdle testified that when they approached the entrance, 

the main door was open and the officers could see through 

the screen door. The officers knocked, and Casey answered 

the door, holding a tape measure in his hands. Peden observed 

Cervantes’ daughter and another woman at the home.

The officers knew that Cervantes had an active protection 

order against Casey which prohibited contact between Casey 
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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. CERVANTES

Cite as 306 Neb. 740

and Cervantes, and upon seeing Casey in the home, Peden 

believed that Casey was violating the order. He did not know 

whether Cervantes was in the home. Peden briefly observed 

an unknown person exiting the living room toward the south 

side of the home. He heard a door slam in the direction that 

this person had fled. The three people Peden had originally 

observed at the home were still visible when he heard the door 

slam, which led him to believe there had been a fourth person 

in the home. McArdle testified that he did not observe anyone 

else in the home other than Cervantes’ daughter and that he did 

not hear sounds or noises that suggested somebody else was 

present. McArdle testified that he confirmed through dispatch 

that a protection order remained active against Casey, and the 

officers then handcuffed Casey.

Cervantes’ daughter told McArdle no one else was in the 

home and gave consent for him to search the home. As 

McArdle took a few steps into the home, someone driving a 

vehicle pulled up and reported that a woman had jumped out 

the window of the home and run south. McArdle ran out of 

the house and found Cervantes walking in an alley about a 

block away. McArdle handcuffed her and took her back to the 

residence. McArdle acknowledged that Cervantes stopped and 

cooperated when apprehended, aside from “pull[ing] away a 

little bit” when she was handcuffed. Cervantes answered his 

questions and did not take action to prevent McArdle and 

Peden from arresting Casey.

McArdle spoke with Cervantes, and she admitted that she 

had been in the home when Casey greeted the officers at the 

door. Both officers testified that Cervantes admitted being in 

the home and leaving to avoid getting in trouble. On crossexamination, Peden acknowledged that Cervantes told officers 

that she had asked Casey to leave the home. Peden indicated 

that he did not believe her; he did not observe anything to 

indicate that Casey was not welcome at the home or that anyone there was trying to remove him. Peden was not aware that 
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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. CERVANTES

Cite as 306 Neb. 740

Cervantes had a prior arrest for aiding and abetting Casey’s 

prior violation of a protection order.

Cervantes testified in her own behalf. She stated that Casey 

is her husband and that she obtained the protection order due 

to his actions resulting from a mental health issue. Cervantes 

initially sought the protection order because Casey would not 

take medication for his mental health issue and was becoming 

violent. The couple had separated a short time before she got 

the protection order and had not since resumed living together. 

She moved from her previous home to get away from him. 

However, Cervantes testified that she understood “there was a 

30-day restraining order,” but that she later learned that it was 

for 1 year.

Cervantes testified that she previously pled guilty to aiding 

and abetting the violation of the same protection order. With 

respect to the prior incident, according to Cervantes, Casey 

entered her car without permission and law enforcement pulled 

her over and arrested her.

On the day of the incident leading to the charges filed in 

this case, Cervantes denied inviting or allowing Casey into 

the home. She testified that she had been sleeping in her bedroom when he entered. She stated that she “told him to leave 

my house or I was going to call the cops, and he said he had 

my phone and nobody was going to call them.” According to 

Cervantes, Casey was in the home for a half hour during which 

Cervantes repeatedly told him to leave.

Cervantes admitted that when she heard law enforcement at 

her front door on September 26, 2018, she left the home. She 

was surprised that Casey would answer the front door and talk 

to police officers. Cervantes fled from the house through the 

bathroom window because she was scared that she would “get 

in trouble for something I didn’t do” and would be arrested 

again. Cervantes acknowledged on cross-examination that the 

bathroom in the home was being remodeled that day and that 

Casey, who is a carpenter, answered the door with a tape meas

ure in his hand.
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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. CERVANTES

Cite as 306 Neb. 740

The district court acquitted Cervantes of the felony charge 

of aiding and abetting a violation of a protection order. 

However, with regard to the charge for obstructing a police 

officer, the court found Cervantes guilty beyond a reasonable doubt. The court stated that fleeing law enforcement was 

obstruction of a peace officer under the law and that “the 

more logical, rational, and careful thing” for Cervantes to 

have done would have been to call out to the police officers 

and ask for their help once they were in the home. The court 

said that Cervantes knew the officers were there, but instead 

of asking them for help, she “fled the scene, and [was] found 

a block away.”

On December 4, 2019, the district court sentenced Cervantes 

to a term of 6 days’ imprisonment, with credit for 6 days already 

served, and a term of probation for a period of 12 months.

Cervantes appeals.

III. ASSIGNMENT OF ERROR

On appeal, Cervantes claims, restated, that the district court 

erred because it convicted her without sufficient evidence that 

she obstructed a peace officer.

IV. STANDARDS OF REVIEW

[1-3] An appellate court will sustain a conviction in a 

bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the State, is 

sufficient to support that conviction. State v. Montoya, 304 

Neb. 96, 933 N.W.2d 558 (2019). In making this determination, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are within a 

fact finder’s province for disposition. Id. Instead, the relevant 

question 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. Id.
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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. CERVANTES

Cite as 306 Neb. 740

V. ANALYSIS

1. Applicable Law

We begin by setting forth the applicable statutes and legal 

principles relevant to our analysis. The obstructing a peace 

officer statute, § 28-906, provides in relevant part:

(1) A person commits the offense of obstructing a 

peace officer, when, by using or threatening to use violence, force, physical interference, or obstacle, he or 

she intentionally obstructs, impairs, or hinders (a) the 

enforcement of the penal law or the preservation of the 

peace by a peace officer or judge acting under color of 

his or her official authority or (b) a police animal assisting a peace officer acting pursuant to the peace officer’s 

official authority.

. . . .

(3) Obstructing a peace officer is a Class I misdemeanor.

To show a violation of § 28-906(1), the State must prove 

that (1) the defendant intentionally obstructed, impaired, or 

hindered either a peace officer, a judge, or a police animal 

assisting a peace officer; (2) at the time the defendant did so, 

the peace officer or judge was acting under color of his or 

her official authority to enforce the penal law or preserve the 

peace; and (3) the defendant did so by using or threatening to 

use either violence, force, physical interference, or obstacle. 

State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).

We recently clarified the law under § 28-906(1) in State v. 

Ferrin, where we stated that

the proper inquiry under § 28-906(1) is not whether a 

defendant has engaged in “some sort of physical act,” but, 

rather, whether a defendant’s conduct, however expressed, 

used or threatened to use either violence, force, physical 

interference, or obstacle to intentionally obstruct, impair, 

or hinder a peace officer or judge who was acting to 

either enforce the penal law or preserve the peace under 

color of his or her official authority.
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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. CERVANTES

Cite as 306 Neb. 740

305 Neb. at 776, 942 N.W.2d at 415. For purposes of 

§ 28-906(1), we defined the words “interference” and “obstacle” as follows:

Used in its common and ordinary sense, the word “interference” means “[t]he action or fact of interfering or 

intermeddling (with a person, etc., or in some action).” 

Similarly, “obstacle” means “[s]omething that stands in 

the way or that obstructs progress (literal and figurative); 

a hindrance, impediment, or obstruction.”

State v. Ferrin, 305 Neb. at 777, 942 N.W.2d at 415.

For completeness, we note that the district court did not 

have the benefit of our clarifications in State v. Ferrin, but the 

district court’s reliance on “flight” and other factors as bases 

for conviction in this case is not incorrect. See In re Interest of 

Richter, 226 Neb. 874, 415 N.W.2d 476 (1987).

2. Obstruction of a Peace Officer: 

Sufficiency of Evidence

Cervantes claims that the evidence is insufficient to support 

her conviction for obstruction of a peace officer. We conclude 

that Cervantes’ assignment of error is without merit.

(a) Cervantes’ Intentional Acts

The first inquiry in this case under § 28-906 as explained 

in State v. Ferrin, supra, includes an examination of whether 

the defendant’s acts which involved peace officers were intentional. There is no dispute that peace officers were involved.

With respect to intentionality, Cervantes told police officers 

that she believed she would be “in trouble” because of Casey’s 

presence in the home contrary to a protection order. There was 

evidence that Casey had previously violated the protection 

order. Cervantes testified that she fled out of the bathroom 

window when she heard law enforcement at the home to avoid 

speaking with them. Cervantes did not want to talk to officers, 

but she knew that officers wanted to talk to her. There was 

sufficient evidence at trial to conclude Cervantes’ acts were 
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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. CERVANTES

Cite as 306 Neb. 740

done intentionally to obstruct, impair, or hinder Peden and 

McArdle in their enforcement efforts.

(b) The Police Officers Were Enforcing 

Penal Law at the Time of the Incident

The second inquiry in this case under § 28-906, as explained 

in State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020), 

includes an examination of whether the peace officers were 

enforcing a penal law.

Cervantes contends that the police officers were not enforcing the penal law or preserving the peace at the time of the 

incident. We do not agree. The evidence shows that Casey 

answered the door at Cervantes’ house and that Peden testified he knew that Cervantes had a no-contact protection order 

against Casey that was in force, violation of which is against 

the penal law. Section 42-924(4) provides that a knowing violation of a protection order is “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.” Casey was subject to a prior violation. 

The continued presence of law enforcement at Cervantes’ home 

was in service of the enforcement and investigation of a penal 

law, § 42-924(4). There was sufficient evidence supporting the 

district court’s conclusion that the police officers were enforcing the penal law at the time of the incident.

(c) Cervantes’ Acts Were Used to Obstruct 

or Impair Enforcement of a Penal Law

The third inquiry under § 28-906, as explained in State v. 

Ferrin, supra, includes an examination of whether Cervantes’ 

acts were used to obstruct or impair enforcement of a 

penal law.

Cervantes contends that her flight from law enforcement, 

standing alone, was insufficient to satisfy the element of 

obstructing or impairing the work of a peace officer. We do not 

agree. As noted above, running away to avoid a peace officer’s 
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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. CERVANTES

Cite as 306 Neb. 740

acting to enforce the penal law can result in an interference or 

obstacle to the progress of that enforcement. See id.

Under the facts presented at trial, Cervantes’ flight out 

the window physically obstructed and impaired law enforcement. The evidence shows that upon observing Casey, Peden 

and McArdle remained at Cervantes’ residence so they could 

investigate the violation of a protection order. Cervantes 

was ultimately apprehended with the aid of a passer-by who 

reported that a woman had jumped out of a window and run 

away from the home. Nevertheless, the officers’ questioning of 

Cervantes in connection with their enforcement of a penal law 

was hindered or impeded by Cervantes’ intentional acts.

VI. CONCLUSION

The evidence received at trial, taken in the light most 

favorable to the State, was sufficient to find that Cervantes’ 

intentional acts impaired peace officers’ enforcing a penal law. 

Accordingly, we affirm the judgment and sentence of the district court.

Affirmed.