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STATE v. THELEN

Cite as 305 Neb. 334

State of Nebraska, appellee, v. 

John E. Thelen, appellant.

___ N.W.2d ___

Filed March 20, 2020. No. S-19-604.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal 

case from the county court, the district court acts as an intermediate 

court of appeals, and its review is limited to an examination of the 

record for error or abuse of discretion.

2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error 

appearing on the record.

3. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

4. Appeal and Error. An appellate court independently reviews questions 

of law in appeals from the county court.

5. Criminal Law: Courts: Appeal and Error. When deciding appeals 

from criminal convictions in county court, an appellate court applies the 

same standards of review that it applies to decide appeals from criminal 

convictions in district court.

6. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. 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.

Nebraska Supreme Court Online Library

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

06/12/2020 01:08 AM CDT
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7. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

8. Statutes: Legislature: Intent. In discerning the meaning of a statute, 

a court must determine and give effect to the purpose and intent of the 

Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, as it is the court’s duty 

to discover, if possible, the Legislature’s intent from the language of the 

statute itself.

9. Statutes: Appeal and Error. An appellate court does not consider 

a statute’s clauses and phrases as detached and isolated expressions. 

Instead, the whole and every part of the statute must be considered in 

fixing the meaning of any of its parts.

10. Criminal Law: Statutes. While a penal statute is to be construed 

strictly, it is to be given a sensible construction in the context of the 

object sought to be accomplished, the evils and mischiefs sought to be 

remedied, and the purpose sought to be served.

11. Statutes: Legislature: Intent. Components of a series or collection of 

statutes pertaining to a certain subject matter are in pari materia and 

should be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

12. Highways: Words and Phrases. A “public road” in Neb. Rev. Stat. 

§ 39-301 (Reissue 2016) includes the entire area within the county’s 

right-of-way.

Appeal from the District Court for Cedar County, Paul J. 

Vaughan, Judge, on appeal thereto from the County Court for 

Cedar County, Douglas L. Luebe, Judge. Judgment of District 

Court affirmed.

Bradley C. Easland, of Egley, Fullner, Montag, Morland & 

Easland, P.C., for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

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

Papik, and Freudenberg, JJ.
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Freudenberg, J.

NATURE OF CASE

The defendant landowner appeals from criminal misdemeanor convictions for violating Neb. Rev. Stat. § 39-301 

(Reissue 2016), by repeatedly erecting an electric fence approximately 3 feet from the edge of a county gravel roadway and 

within the county’s right-of-way that extends into the ditch. 

The central question is whether a county’s right-of-way extending into a ditch along a county roadway is a “public road” for 

purposes of § 39-301.

BACKGROUND

In September 2016, John E. Thelen was charged with three 

counts of obstructing a public road in violation of § 39-301, 

based on repeated instances of erecting an electric fence within 

the ditch right-of-way of Cedar County, Nebraska (County), 

alongside a county road. Count I alleged that Thelen obstructed 

a public road on August 31, count II alleged that he obstructed 

a public road on September 6, and count III alleged that Thelen 

obstructed a public road on September 13. The pertinent language of § 39-301 provides, “Any person who . . . obstructs a 

public road . . . by encroaching upon the same with any fence 

. . . shall, upon conviction thereof, be guilty of a Class V misdemeanor . . . .” The complaint alleged that the County had 

incurred a total cost of approximately $400 in removing the 

obstructions.

A bench trial was held on stipulated evidence. The evidence 

was undisputed that the Cedar County Board of Commissioners 

(Board) had established pursuant to Neb. Rev. Stat. § 39-1702 

(Reissue 2016) that the County’s public roads’ rights-of-way 

are 66 feet, measured from the centerline of the roadway on 

each side to a 33-foot distance to the ditch on each side. It was 

also undisputed that the County controls a public road running 

along the south side of Thelen’s property and controls, maintains, and is responsible for its 66-foot right-of-way.

Both the County’s highway superintendent, Carla Schmidt, 

and the chairman of the Board, David McGregor, averred that 
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since 2013, Thelen has continuously and repeatedly placed a 

fence within the County’s right-of-way and has refused to voluntarily remove his fence after being given reasonable notice 

to do so.

According to Schmidt, for purposes of moving his cattle 

from one pasture to another, Thelen regularly placed his fence 

in the County’s ditch right-of-way beginning in June and 

removed it in October or November. Schmidt noted that the 

fence had been repeatedly placed a mere 161⁄2 feet from the 

roadway centerline.

McGregor averred that it was the County’s duty to keep its 

public roads’ rights-of-way free of debris, crops, fences, or any 

other obstructions. McGregor described that such obstructions 

presented a safety issue and that the County would subject 

itself to the loss of its tort liability insurance coverage if it 

failed to keep its ditches free of obstructions.

Schmidt similarly averred that the fences repeatedly placed 

by Thelen in the County’s right-of-way endangered the traveling public and created liability for the County for the failure to 

comply with its statutory duty under § 39-301 to remove road 

obstacles.

According to Schmidt’s and McGregor’s affidavits, the 

County gave Thelen notices in August and October 2013 to 

remove his fence from the ditch right-of-way and he refused 

to comply. Instead, Thelen complained that other people in the 

County similarly obstructed the County’s rights-of-way. Thelen 

sent a letter through his attorney requesting permission to 

place his fence in the County’s right-of-way from June through 

October. In the letter, attached to Schmidt’s affidavit, Thelen 

asserted that if his fence is removed by the County, his cattle 

would stray onto the roadway. The Board denied Thelen’s 

request in October 2013.

Schmidt and McGregor both stated that, again, in March 

2014, Thelen placed a newly erected fence in the right-of-way 

and refused to remove it after notice was given. Schmidt’s 

affidavit, as well as other exhibits entered into evidence in 
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the 2016 actions, demonstrate that in September 2014, Thelen 

appeared before the Board at a regularly conducted meeting 

and the Board again denied Thelen’s request for permission to 

erect a fence within the County’s right-of-way.

In 2015, Thelen was found guilty of violating § 39-301 

for erecting in July 2015 the same type of fence at the same 

location as alleged in the 2016 criminal complaint leading to 

the misdemeanor convictions presently on appeal. In its 2015 

order, the county court found that the County’s ditch right-ofway was encompassed by the term “public road.” Further, the 

court explained that the law does not recognize as a defense the 

fact that others are violating the same law.

Thereafter, in September 2015, according to Schmidt and 

McGregor, Thelen placed his fence anew in the County’s rightof-way. However, no additional criminal charges were filed 

against Thelen by the State in 2015 regarding the fence.

Chief Deputy Sheriff Chad Claussen averred that in 2016, 

he investigated the scene on July 18 and 21 and ascertained 

that Thelen had again erected an electric fence along the 

county road and in the County’s right-of-way, which Thelen 

had previously been advised not to do. The fence was located 

approximately 16 to 31 feet from the centerline. The County 

gave notice to Thelen on July 26, directing him to remove 

the fence.

Claussen averred that on August 31, 2016, he again investigated the scene and found the fence still present. According to 

a report, the fence was no longer standing but was lying in the 

ditch right-of-way. Claussen seized as evidence approximately 

1,500 feet of electric fence wire, 50 posts, and 68 electric fence 

insulators belonging to Thelen.

During the seizure, Thelen approached Claussen and “complained about the situation.” When Claussen suggested that 

Thelen place the fence on his own property and outside of the 

right-of-way, Thelen advised Claussen that a prior county commissioner had given him permission to erect the fence there 

and that the new county commissioner, who he believed would 
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be elected in an upcoming election, would give him permission 

to do so in the future.

When Claussen attempted to give Thelen a receipt for the 

seized fence, however, he refused to take it, saying that “it was 

not his fence.” Claussen left the receipt on a fencepost. The 

Cedar County Attorney averred that on September 1, 2016, 

Thelen came to his office requesting that the sheriff’s office 

“return to him the fence seized” by Claussen on August 31.

Claussen averred that on September 4, 2016, he found that 

Thelen had erected another fence at the same location. He 

removed the fence and seized as evidence approximately 1,500 

feet of single strand electric fence wire, 40 steel posts, and 

40 electric fence insulators, which Claussen averred belonged 

to Thelen.

On September 13, 2016, Claussen observed that yet another 

fence had been erected in the same location. Claussen seized 

approximately 1,500 feet of single strand electric fence wire 

and an insulated gate belonging to Thelen.

According to McGregor, in July, August, and September 

2016, the County received citizen complaints that Thelen was 

placing his fence in the County’s ditch right-of-way, which 

led to Claussen’s investigations. Schmidt summarized in her 

affidavit that in the spring of 2016, Thelen placed his fence in 

the County’s right-of-way. Further, from July 2016 to the date 

of the affidavit, December 2016, Thelen had placed his fence 

in the County’s right-of-way on three separate occasions and, 

each time, the County had removed the fence. According to 

Schmidt, Thelen “has indicated that he will continue to disregard my notices in the future because the fine is only $25.00, 

indicating cheap pasture rent.”

The stipulated exhibits also included reports by Claussen 

and a deputy sheriff, describing their observations of the electric fence in the aforementioned right-of-way on August 31 and 

on September 4, 6, and 13, 2016. The deputy sheriff described 

that on September 4, he observed the “single strand hotwire” 

fence along the road approximately 3 feet from where the 
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gravel started, with multiple cows inside the fence. The affidavits and reports described the removal of the fence by county 

employees on September 6, as well as the removal on August 

31 and September 13 of fencing that had been left lying in the 

ditch right-of-way.

Thelen submitted an affidavit in which he described the incident on September 1, 2016, when he went to the Cedar County 

Attorney’s office to ask that the fencing materials taken be 

returned to him, because “my name was on the receipt.” Thelen 

recounted that he had told both Claussen and the Cedar County 

Attorney that the materials were not his. Thelen did not, however, aver that the fencing materials were not his.

Finally, an exhibit entered into evidence by stipulation 

reflects $401 in labor costs by the County’s road department 

for removal of fencing on August 31 and September 6, 2016, 

and for picking up wire in the ditch on September 13.

In August 2017, the county court convicted Thelen of three 

counts of violating § 39-301. Thelen was fined $100 for each 

violation. Thelen appealed to the district court, which, on May 

22, 2019, affirmed the county court’s judgment. Thelen appeals.

ASSIGNMENTS OF ERROR

Thelen assigns that the county court erred in finding him 

guilty of the crimes charged because (1) there was insufficient 

evidence presented to prove that he was the individual who 

placed the electric fence in the ditch and (2) the placement of 

an electric fence in a ditch does not violate § 39-301. Thelen 

assigns that for these same reasons, the district court erred in 

affirming the county court’s judgment.

STANDARD OF REVIEW

[1] In an appeal of a criminal case from the county court, the 

district court acts as an intermediate court of appeals, and its 

review is limited to an examination of the record for error or 

abuse of discretion. 1

1 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
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[2] Both the district court and a higher appellate court generally review appeals from the county court for error appearing 

on the record. 2

[3] When reviewing a judgment for errors appearing on the 

record, an appellate court’s inquiry is whether the decision 

conforms to the law, is supported by competent evidence, and 

is neither arbitrary, capricious, nor unreasonable. 3

[4] We independently review questions of law in appeals 

from the county court. 4

[5] When deciding appeals from criminal convictions in 

county court, we apply the same standards of review that 

we apply to decide appeals from criminal convictions in district court. 5

[6] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. 6 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. 7

[7] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below. 8

2 Id.

3 Id.

4 Id.

5 Id.

6 State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).

7 Id.

8 Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).
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ANALYSIS

Thelen asserts that the County’s ditch right-of-way alongside 

the county roadway does not constitute a “public road” for purposes of § 39-301. He does not contest that an electric fence 

is a “fence” constituting an obstruction under the statute. He 

does, however, argue that the evidence was insufficient to find 

that he erected the fences in question.

Is Ditch Part of Public Road 

for Purposes of § 39-301?

The question of whether a ditch right-of-way is part of a 

“public road” for purposes of § 39-301 is a question of statutory interpretation. Statutory interpretation presents a question 

of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by 

the court below. 9

[8-10] In discerning the meaning of a statute, a court must 

determine and give effect to the purpose and intent of the 

Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, as it is 

the court’s duty to discover, if possible, the Legislature’s intent 

from the language of the statute itself. 10 An appellate court 

does not consider a statute’s clauses and phrases as detached 

and isolated expressions. Instead, the whole and every part of 

the statute must be considered in fixing the meaning of any of 

its parts. 11 While a penal statute is to be construed strictly, it is 

to be given a sensible construction in the context of the object 

sought to be accomplished, the evils and mischiefs sought to be 

remedied, and the purpose sought to be served. 12

Chapter 39, article 3, of the Nebraska Revised Statutes sets 

forth duties, rules, and penalties related to the safety and maintenance of “roads” and, to a lesser extent, “highways.” Section 

9 Id.

10 Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013).

11 Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014).

12 State v. Stanko, 304 Neb. 675, 936 N.W.2d 353 (2019).
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39-301, the statute directly at issue in these appeals, provides 

in relevant part:

Any person who injures or obstructs a public road

by felling a tree or trees in, upon, or across the same, 

by placing or leaving any other obstruction thereon, by 

encroaching upon the same with any fence, by plowing or 

digging any ditch or other opening thereon, by diverting 

water onto or across such road so as to saturate, wash, 

or impair the maintenance, construction, or passability 

of such public road, or by allowing water to accumulate 

on the roadway or traveled surface of the road or who 

leaves the cutting of any hedge thereupon for more than 

five days shall, upon conviction thereof, be guilty of a 

Class V misdemeanor and, in case of placing any obstruction on the road, be charged an additional sum of not 

exceeding three dollars per day for every day he or she 

allows such obstruction to remain after being ordered to 

remove the same by the road overseer or other officer in 

charge of road work in the area where such obstruction 

is located, complaint to be made by any person feeling 

aggrieved.

This section shall not apply to any person who lawfully fells any tree for use and will immediately remove 

the same out of the road nor to any person through whose 

land a public road may pass who desires to drain such 

land and gives due notice of such intention to the road 

overseer or other officer in charge of road work nor when 

damage has been caused by a mechanical malfunction of 

any irrigation equipment, when a sprinkler irrigation system had been set so that under normal weather conditions 

no water would have been placed upon the right-of-way 

of any road, when the county board grants permission for 

the landowner to divert water from one area to another 

along a county highway right-of-way, or when a municipality has granted permission along or across the rightof-way under its jurisdiction, except that if damage has 

been caused by a mechanical malfunction of irrigation 
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equipment more than two times in one calendar year, the 

penalty provided in this section shall apply.

(Emphasis supplied.) Neb. Rev. Stat. § 39-304 (Reissue 2016) 

provides that “[a]ny person who willfully and maliciously 

injures any lawful public road in this state . . . shall, for every 

such offense, be guilty of a Class V misdemeanor . . . .”

Neb. Rev. Stat. § 39-310 (Reissue 2016), which refers to 

depositing materials on “public road[s]” or inside the “ditches 

of such road,” provides:

Any person who deposits any wood, stone, or other 

kind of material on any part of any lawful public road 

in this state, inside of the ditches of such road, or outside of the ditches but so near thereto as to cause the 

banks thereof to break into the same, causes the accumulation of rubbish, or causes any kind of obstruction, 

shall be guilty of (1) a Class III misdemeanor for the 

first offense, (2) a Class II misdemeanor for the second 

offense, and (3) a Class I misdemeanor for the third or 

subsequent offense.

Neb. Rev. Stat. § 39-311 (Reissue 2016) is a similar, but 

more extensive, provision related to depositing materials on 

“highway[s].”

On its face, § 39-301 clearly distinguishes between a “roadway,” which is the “traveled surface of the road,” and the 

“road,” which is something greater than the “roadway.” Section 

39-310 clearly includes ditches as part of the “road.” Section 

39-301 also makes several references to the “right-of-way,” 

describing the right-of-way “of any road,” and states that a 

person does not violate the statute when a sprinkler irrigation 

system was set so that under normal weather conditions no 

water would have been placed upon the right-of-way of any 

road or by diverting water along or across a right-of-way with 

permission of “the county board [or] municipality.”

Neb. Rev. Stat. § 39-101(11) (Reissue 2016) defines “[r]oadway” as that “portion of a highway improved, designed, or 

ordinarily used for vehicular travel, exclusive of the berm 
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or shoulder.” “Shoulder,” in turn, is defined in § 39-101(12) 

as that “part of the highway contiguous to the roadway and 

designed for the accommodation of stopped vehicles, for emergency use, and for lateral support of the base and surface 

courses of the roadway.” There is no statutory definition of 

a “berm.”

[11] The terms “road” and “public road” are not defined in 

chapter 39, article 1, of the Nebraska Revised Statutes. But 

components of a series or collection of statutes pertaining to 

a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of 

the Legislature, so that different provisions are consistent, harmonious, and sensible. 13 We have accordingly found it appropriate to consider in pari materia different articles in the same 

chapter, when they concern related matters. 14

“Road” is defined in Neb. Rev. Stat. § 39-1302(32) (Reissue 

2016), in chapter 39, article 13, relating to the state highway 

system, and expressly includes “the entire area within the 

right-of-way”: “Road shall mean a public way for the purposes 

of vehicular travel, including the entire area within the rightof-way. A road designated as part of the state highway system 

may be called a highway, while a road in an urban area may be 

called a street.”

This definition of “road” as including the entire area within 

the right-of-way is consistent with numerous other statutes 

in chapter 39. Section 39-1702(2) provides that the right-ofway for “[c]ounty road purposes” “shall be of such width as 

is deemed necessary by the county board,” and it specifically 

13 Pittman v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487 

(2012). See, also, Farmers Co-op v. State, 296 Neb. 347, 893 N.W.2d 

728 (2017), modified on denial of rehearing 297 Neb. 132, 898 N.W.2d 

674; Fontenelle Equip. v. Pattlen Enters., 262 Neb. 129, 629 N.W.2d 534 

(2001).

14 See, Cookson v. Ramge, 299 Neb. 128, 907 N.W.2d 296 (2018); In re 

Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944); 

Greb v. Hansen, 123 Neb. 426, 243 N.W. 278 (1932); Brown Real Estate 

Co. v. Lancaster County, 108 Neb. 514, 188 N.W. 247 (1922).
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described the “right-of-way for such roads,” providing in relevant part:

County road purposes, as referred to in subsection (1) of 

this section, shall include provisions for, but shall not be 

limited to, the following: (a) The establishment, construction, reconstruction, relocation, improvement, or maintenance of any county road. The right-of-way for such 

roads shall be of such width as is deemed necessary by 

the county board . . . .

(Emphasis supplied.)

A “highway” under chapter 39 is just one form of a “road,” 

and it is also consistently described as including the rightof-way. “Highway” is defined by § 39-101(3) as “the entire 

width between the boundary limits of any street, road, avenue, 

boulevard, or way which is publicly maintained when any part 

thereof is open to the use of the public for purposes of vehicular travel.” (Emphasis supplied.) Section 39-1302(22), which 

contains extensive provisions relating to the creation and maintenance of the state highway system, similarly defines “[h]ighway” as “a road or street, including the entire area within the 

right-of-way, which has been designated a part of the state 

highway system.” (Emphasis supplied.)

“State highway system” is defined in § 39-1302(37) as

the roads, streets, and highways shown on the map provided for in section 39-1311 as forming a group of 

highway transportation lines for which the [Nebraska 

Department of Transportation] shall be the primary 

authority. The state highway system shall include, but not 

be limited to, rights-of-way, connecting links, drainage 

facilities, and the bridges, appurtenances, easements, and 

structures used in conjunction with such roads, streets, 

and highways.

(Emphasis supplied.) In § 39-1302(31), “[r]ight-of-way 

shall mean land, property, or interest therein, usually in a 

strip, acquired for or devoted to a road, street, or highway.” 

(Emphasis supplied.)
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The “entire area” within the right-of-way is similarly 

included in the definitions in § 39-1302 of “[h]ighway” and 

“[s]treet” for purposes of cities of the metropolitan class. 

Under Neb. Rev. Stat. § 14-384(7) (Reissue 2012), pertaining 

to “highways” and “streets” in cities of the metropolitan class, 

“[h]ighway shall mean a road or street including the entire area 

within the right-of-way which has been designated a part of the 

State Highway System by appropriate authority,” and under 

§ 14-384(9), “[s]treet shall mean a public way for the purpose 

of vehicular and pedestrian travel in the city and shall include 

the entire area within the right-of-way.” (Emphasis supplied.)

Under Neb. Rev. Stat. § 39-1309(3) (Reissue 2016), “highways” that are not part of the state highway system are part 

of the “county road system,” with title “to the right-of-way of 

such roads” vesting with the county:

Any highways not designated as a part of the state highway system as provided by sections 39-1301 to 39-1362 

and 39-1393 shall be a part of the county road system, 

and the title to the right-of-way of such roads shall vest in 

the counties in which the roads are located.

(Emphasis supplied.)

The statutes pertaining to the county road system do not otherwise elaborate on county rights-of-way. Pertaining to the state 

highway system, however, Neb. Rev. Stat. § 39-1359 (Reissue 

2016) describes rights-of-way acquired by the Department of 

Transportation as “inviolate for state highway and departmental purposes” and, with limited statutory exceptions or unless 

with written consent of the Department of Transportation, 

prohibits any “physical or functional encroachments, structures, or uses” within the right-of-way limits. Neb. Rev. Stat. 

§ 39-1360 (Reissue 2016) provides that “[n]o person may 

use the drainage facilities of a highway for private purposes 

without first obtaining the written consent of the [Department 

of Transportation].”

[12] All these provisions in chapter 39 illustrate that a 

“road” includes the right-of-way, which cannot be obstructed 
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without express permission. Consistent with § 39-1302(32) 

and numerous other statutes in chapter 39, we hold that a 

“public road” in § 39-301 includes the entire area within the 

county’s right-of-way. The object sought to be accomplished 

by § 39-301 is the maintenance for the public safety of the 

“road,” the boundaries of which are designated by the county 

through its acquisition of the right-of-way. Thus, the area 

of the ditch here at issue, which was within the county’s 

right-of-way, was part of the “public road” for purposes of 

§ 39-301.

Did Thelen Erect the Fences?

Having determined that the area in question was a “public 

road,” we address Thelen’s contention that there was insufficient evidence for the trier of fact to conclude that he was 

responsible for erecting the fences obstructing the public road. 

In an appeal of a criminal case from the county court, the 

district court acts as an intermediate court of appeals, and its 

review is limited to an examination of the record for error or 

abuse of discretion. 15 Both the district court and a higher appellate court generally review appeals from the county court for 

error appearing on the record. 16 When reviewing a judgment 

for errors appearing on the record, an appellate court’s inquiry 

is whether the decision conforms to the law, is supported by 

competent evidence, and is neither arbitrary, capricious, nor 

unreasonable. 17 When deciding appeals from criminal convictions in county court, we apply the same standards of review 

that we apply to decide appeals from criminal convictions in 

district court. 18

In reviewing a criminal conviction for a sufficiency of the 

evidence claim, whether the evidence is direct, circumstantial, 

15 State v. McCave, supra note 1.

16 Id.

17 Id.

18 Id.
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or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on 

the credibility of witnesses, or reweigh the evidence; such 

matters are for the finder of fact. 19 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. 20

The evidence was sufficient to support the county court’s 

finding that Thelen erected the fences or left them lying in 

the ditch right-of-way. The right-of-way in question adjoined 

Thelen’s land, and Thelen repeatedly described that he used 

a fence there for his cattle. At least twice, Thelen expressly 

sought permission to erect a fence on the land in question. 

He was convicted of violating § 39-301 for erecting a fence 

on the same land the year prior to the violations at issue 

in this appeal. He indicated to Schmidt that he intended to 

keep erecting a fence there. Thelen asked for the return of 

fencing materials confiscated from the ditch right-of-way by 

law enforcement.

This evidence might be considered circumstantial evidence, 

which, without going directly to prove the existence of a fact, 

gives rise to a logical inference that such fact exists. 21 As 

Thelen points out, there is no evidence that anyone observed 

Thelen erect the fence, nor is there a clear direct admission 

by Thelen. But a fact proved by circumstantial evidence is 

nonetheless a proven fact. 22 Circumstantial evidence is not 

inherently less probative than direct evidence. 23 We find the 

evidence sufficient to support the convictions in the criminal 

case of three counts of violating § 39-301.

19 State v. McCurdy, supra note 6.

20 Id.

21 See State v. Mowry, 245 Neb. 213, 512 N.W.2d 140 (1994).

22 State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).

23 Id.
- 350 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. THELEN

Cite as 305 Neb. 334

CONCLUSION

For the foregoing reasons, we affirm the decision of the 

district court affirming the judgment and convictions of the 

county court.

Affirmed.