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STATE v. ARMAGOST

Cite as 291 Neb. 117

State of Nebraska, appellee, v. 

Jacob D. Armagost, appellant.

___ N.W.2d ___

Filed June 19, 2015. No. S-14-058.

1. Jury Instructions. Whether the jury instructions given by a trial court 

are correct is a question of law.

2. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the conclusion 

reached by the lower court.

3. Jury Instructions. In giving instructions to the jury, it is proper for the 

court to describe the offense in the language of the statute.

4. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction.

5. Criminal Law: Legislature: Statutes. Within constitutional boundaries, the Legislature is empowered to define a crime.

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. Judgment of Court of Appeals affirmed.

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.
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STATE v. ARMAGOST

Cite as 291 Neb. 117

Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman, 

and Cassel, JJ.

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

[1,2] 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 
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STATE v. ARMAGOST

Cite as 291 Neb. 117

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 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 not 

warranted. Armagost and the State each petitioned this court 

for further review.

ASSIGNMENTS OF ERROR

Armagost claims the Court of Appeals erred when it found 

that an attempt at an arrest or citation was an essential element of the crime charged, but concluded that the failure to 

so instruct the jury was harmless error. He also contends that 

it was error not to give his proposed jury instruction on the 

definition of “arrest.”

The State asserts that the Court of Appeals erred in finding 

that an attempt to arrest or cite Armagost was an essential element of the charge of operating a motor vehicle in a willful 

reckless manner to avoid arrest.
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STATE v. ARMAGOST

Cite as 291 Neb. 117

ANALYSIS

The question we address is whether the attempt to arrest or 

issue a citation is an essential element of the charge of operating a motor vehicle in a willful reckless manner to avoid arrest 

under Neb. Rev. Stat. § 28-905 (Reissue 2008).

The State claims that the attempted arrest or citation is 

implicit in the language of § 28-905, which provides in relevant part:

(1) Any person who operates any motor vehicle to flee 

in such vehicle in an effort to avoid arrest or citation 

commits the offense of operation of a motor vehicle to 

avoid arrest.

. . . .

(3)(a) Any person who violates subsection (1) of this 

section shall be guilty of a Class IV felony if, in addition 

to the violation of subsection (1) of this section, one or 

more of the following also applies:

. . . .

(iii) The flight to avoid arrest includes the willful reckless operation of the motor vehicle.

The Court of Appeals found, and it was not disputed, 

that instruction No. 3 mirrored the language of § 28-905. 

Therefore, we turn to instruction No. 3 as given to the jury, 

which stated:

The material elements which the State must prove 

beyond a reasonable doubt in order to convict [Armagost] 

of the offense of operating a motor vehicle in a willful 

reckless manner to avoid arrest are:

1. That . . . Armagost . . . operated a motor vehicle;

2. That [Armagost] fled in such vehicle in an effort to 

avoid arrest or citation;

3. That [Armagost] did so in a willful reckless manner; and

4. That [Armagost] did so on or about June 6, 2013, in 

Merrick County, Nebraska.

A person drives in a willful reckless manner if he 

or she drives any motor vehicle in such a manner as 
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STATE v. ARMAGOST

Cite as 291 Neb. 117

to indicate a willful disregard for the safety of persons 

or property.

The elements of the lesser included offense of operating a motor vehicle to avoid arrest are:

1. That . . . Armagost . . . operated a motor vehicle; and

2. That [Armagost] did so in an effort to avoid arrest 

or citation; and

3. That [Armagost] did so on or about June 6, 2013, in 

Merrick County, Nebraska.

This instruction mirrors the statute, but Armagost claims that 

the jury should have been given an instruction on the separate 

element of attempted arrest or citation. We disagree.

[3,4] In giving instructions to the jury, it is proper for the 

court to describe the offense in the language of the statute. 

State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005). 

To establish reversible error from a court’s refusal to give a 

requested instruction, an appellant has the burden to show that 

(1) the tendered instruction is a correct statement of the law, 

(2) the tendered instruction is warranted by the evidence, and 

(3) the appellant was prejudiced by the court’s refusal to give 

the tendered instruction. State v. Banks, 278 Neb. 342, 771 

N.W.2d 75 (2009).

In concluding that the district court should have included 

an instruction on attempted arrest or citation, the Court of 

Appeals relied on our statement in State v. Williams, 247 Neb. 

931, 939, 531 N.W.2d 222, 229 (1995), overruled, State v. 

Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), that “[j]ury 

instructions that set forth only the statutory elements of a 

crime are insufficient when they do not set forth all the essential elements of the crime.” The Court of Appeals relied on our 

statement in State v. Claussen, 276 Neb. 630, 756 N.W.2d 163 

(2008), that an attempt at an arrest or citation is an essential 

element of the offense of operating a motor vehicle to avoid 

arrest. Based on our statements in Williams and Claussen, the 

Court of Appeals concluded that the district court erred in 

failing to include an instruction to the jury on attempted arrest 

or citation.
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STATE v. ARMAGOST

Cite as 291 Neb. 117

The State contends that we rejected a court’s ability to look 

beyond the language of a statute in determining an element of 

a crime in Burlison, thus overruling our holding in Williams. 

We agree.

The Court of Appeals’ reliance on our statement in Williams

was misplaced. Since overruling Williams, we have consistently held that when instructing the jury, it is proper for the 

court to describe the offense in the language of the statute. 

See, State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011); 

State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006); State 

v. Sanders, supra.

This principle simplifies the process of preparing jury 

instructions. It provides certainty for trial courts concerning 

the question whether the essential elements of the offense have 

been given to the jury.

[5] Using the specific language of a statute more effectively 

implements the intent of the Legislature. Within constitutional 

boundaries, the Legislature is empowered to define a crime. 

State v. Burlison, supra. In Burlison, we held that the only 

elements of murder in the second degree were those which 

the Legislature included in the statute on second degree murder, namely, the causation of death intentionally but without 

premeditation. And we have followed this principle in considering whether a jury has been properly instructed as to the 

elements of the crime charged. See, State v. Kass, supra; State 

v. Davlin, supra; State v. Sanders, supra.

Additionally, the State argues that the Court of Appeals’ reliance on our statement in Claussen that “attempt to arrest” was 

an essential element of the crime of operating a motor vehicle 

in a willful reckless manner to avoid arrest was misplaced. 

Memorandum brief for appellee in support of petition for further review at 3. The State distinguishes Claussen, because

our interpretation of the statute addressed the sufficiency of 

the evidence and not the adequacy of jury instructions. We 

agree. In Claussen, we did not suggest that attempted arrest 

or citation must be included as a separate element in the jury 
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STATE v. ARMAGOST

Cite as 291 Neb. 117

instructions. Instead, we were addressing whether there was 

sufficient evidence to sustain a conviction.

However, even assuming arguendo that our statement in 

Claussen regarding attempted arrest or citation had been referring to jury instructions, our conclusion remains the same. 

Instruction No. 3, which used the language of the statute, was 

sufficient to describe the elements of the crime charged. To 

convict Armagost, the district court required the jury to find 

that “[Armagost] fled in such vehicle in an effort to avoid 

arrest or citation.” Thus, the jury necessarily had to determine 

that Armagost fled from an attempted arrest or citation, otherwise there would be nothing for him to avoid or from which to 

flee. No separate instruction was necessary to convey this point 

to the jury. The charge of operating a vehicle to avoid arrest 

or citation inherently implies the defendant was attempting to 

avoid an arrest or citation.

We find that Armagost’s proposed jury instruction regarding the definition of “arrest” was unnecessary and could have 

confused the jury. Consequently, the district court did not err in 

excluding it from the jury instructions. The proposed instruction stated:

An arrest is taking custody of another person for the 

purpose of holding or detaining him or her to answer to 

a criminal charge, and to effect an arrest, there must be 

an actual or constructive seizure or detention of the person arrested.

State v. Heath, 21 Neb.App. 141 (2013)[.]

The proposed instruction is a correct statement of the law, 

but an instruction on the definition of arrest was not required. 

The Court of Appeals correctly concluded that in order to be 

convicted of this charge, it was not necessary for the State to 

prove that an arrest had been effected.

Unlike charges for resisting arrest and escape from arrest, 

which involve a crime occurring after or during an arrest, 

the charge of operating a motor vehicle to avoid arrest 

occurs before the arrest. The charge means that the defendant 

attempted to avoid arrest, and whether a defendant was “under 
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Cite as 291 Neb. 117

arrest” is not a material element of fleeing to avoid arrest. Such 

an instruction could have confused the jury as to whether an 

arrest was an element of the crime charged. Unlike an offense 

or civil action where the nature of a person’s detention is at 

issue, a common understanding of the term “arrest” was sufficient for the jury to convict Armagost of willful reckless use 

of a vehicle to avoid arrest.

For the reasons stated above, we find that the district court 

did not err in refusing to instruct the jury that an attempted 

arrest or citation was an element of the offense and did not err 

in refusing to give a separate instruction on the legal definition of “arrest.”

CONCLUSION

We affirm the Court of Appeals’ decision affirming 

Armagost’s conviction, but disapprove of its conclusion that 

under § 28-905, an attempt to arrest or cite a defendant must 

be separately identified as an element in jury instructions.

Affirmed.

McCormack, J., participating on briefs.