State v. Claussen

hearing for those claims that the district court denied relief by
relying on the deposition of Glover’s counsel.
R eveRsed and Remanded foR
fuRtheR pRoceedings .
state of nebRaska , appellee , v .
R andy l. claussen , appellant .
756 N.W.2d 163
Filed October 3, 2008. 	No. S-07-1141.
1. Statutes. The meaning of a statute is a question of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court reaches
a conclusion independent of the court below.
3. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
4. Criminal Law: Statutes: Legislature. In Nebraska, all crimes are statutory,
and no act is criminal unless the Legislature has in express terms declared it to
be so.
5. Arrests: Motor Vehicles: Proof. An attempt to arrest is an essential element of
the offense of fleeing in a motor vehicle to avoid arrest, but proof that the defend-
ant actually committed the law violation for which the arrest was attempted is
not required.
6. Arrests: Motor Vehicles: Evidence. In a prosecution for felony operation of
a motor vehicle to avoid arrest under Neb. Rev. Stat. § 28-905(2) (Cum. Supp.
2006), there must be some articulable evidence that the underlying violation for
which the motorist was fleeing to avoid arrest constituted a felony.
Appeal from the District Court for Douglas County: W.
maRk ashfoRd, Judge. Affirmed.
Thomas J. Garvey for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
heavican , 	c.J., 	WRight , 	connolly , 	geRRaRd , 	stephan ,
mccoRmack , and milleR-leRman , JJ.
630 	276 NeBRASKA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

stephan , J.
This appeal requires an examination of the proof required to
establish the offense of operating a motor vehicle in an effort
to avoid arrest for a felony. We conclude that the fact that a
defendant is never formally charged with the offense for which
an arrest is attempted does not bar the prosecution.
BACKGROUND
In two separate prosecutions in the district court for Douglas
County, Randy L. Claussen entered pleas of no contest and
was found guilty of three felony offenses, including unlawful
possession of a controlled substance, theft by receiving stolen
property, and unlawful possession of a controlled substance
with intent to deliver. He failed to appear on the date set for
sentencing on the three charges. In each case, the court ordered
issuance of a capias for Claussen’s arrest.
On April 9, 2007, law enforcement deputies learned that
Claussen was planning to meet a woman in the parking lot
of an Omaha restaurant later that day. Deputies in at least
two unmarked vehicles went to the parking lot and waited for
Claussen. When he arrived, the deputies attempted to block his
vehicle in order to arrest him, and Claussen drove out of the
parking lot at a high rate of speed. Deputies initially pursued
Claussen, but stopped after Claussen ran several stop signs at
speeds of 50 to 60 m.p.h. in a residential neighborhood near a
school and a childcare center.
Claussen was apprehended several days later in Iowa. After
waiving extradition, he was returned to Douglas County and
was charged with operating a motor vehicle “to flee in such
vehicle in an effort to avoid arrest for violation of a law consti-
tuting a felony, to wit, outstanding warrants for the following
felony charges[:] possession of Controlled Substance, Theft by
Receiving Stolen property, Unlawful possession with Intent to
Deliver Controlled Substance.” Claussen was also charged with
being a habitual criminal.
Claussen waived his right to a jury trial, and the court con-
ducted a stipulated bench trial at which it received documen-
tary evidence regarding Claussen’s prior convictions, the issu-
ance of the two capiases, and the attempted arrest. The parties
STATe v. CLAUSSeN 	631
Cite as 276 Neb. 630

also stipulated (1) that if called to testify, the deputies would
identify Claussen as the operator of the vehicle at the time
of the attempted arrest; (2) that at the time of the attempted
arrest, Claussen had not been charged with failure to appear
at the March 27, 2007, sentencing hearing; (3) that there were
no other outstanding felony charges; and (4) that the attempted
arrest was solely pursuant to the capias.
Based upon this stipulated evidence, the district court found
Claussen guilty of operating a motor vehicle to avoid arrest
and, after conducting an enhancement hearing, determined that
he was a habitual criminal. The court sentenced Claussen to a
term of imprisonment of 10 years to 10 years, with credit for
time served. Claussen timely appealed, and we moved the case
to our docket pursuant to our statutory authority to regulate the
caseloads of the appellate courts of this state.1
ASSIGNMeNT OF eRROR
Claussen assigns that the district court erred in finding
him guilty of felony flight to avoid arrest without a predi-
cate felony.
STANDARD OF ReVIeW
[1,2] The meaning of a statute is a question of law.2 On
a question of law, we reach a conclusion independent of the
court below.3
[3] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question for
an appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.4
1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).
2 Goodyear Tire & Rubber Co. v. State, 275 Neb. 594, 748 N.W.2d 42
(2008).
3 Pierce v. Douglas Cty. Civil Serv. Comm., 275 Neb. 722, 748 N.W.2d 660
(2008).
4 State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007); State v.
Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
632 	276 NeBRASKA RepORTS

ANALYSIS
[4] In Nebraska, all crimes are statutory, and no act is crimi-
nal unless the Legislature has in express terms declared it to be
so.5 The statute defining the offense for which Claussen was
convicted is Neb. Rev. Stat. § 28-905(2) (Cum. Supp. 2006).
It provides: “Any person who operates any motor vehicle to
flee in such vehicle in an effort to avoid arrest for the viola-
tion of any law of the State of Nebraska constituting a felony
commits the offense of felony operation of a motor vehicle to
avoid arrest.”
This court has not previously discussed the proof necessary
to establish the statutory elements set forth in § 28-905(2). But
under a prior statute which made it unlawful “for any person
operating any motor vehicle to flee in such vehicle in an effort
to avoid arrest for violating any law . . . in this state,”6 we held
that the State was not required to prove that the defendant had
actually violated the law for which the arrest was attempted.7
The defendant in State v. Clifford8 fled after being stopped for
driving while intoxicated. He was subsequently apprehended
and charged with driving under the influence and operating
a motor vehicle to avoid arrest. He was acquitted on the first
charge but convicted on the second. In affirming the convic-
tion, this court wrote:
The offense of fleeing in a motor vehicle to avoid arrest
is separate and distinct from any offense for which law
enforcement officers were attempting to make the arrest.
The two offenses are not interdependent, nor is proof
of the commission of one offense an essential element
of proof of the other offense. Under section 60-430.07,
R. S. Supp., 1978, an attempt to arrest is an essential ele-
ment of the offense of fleeing in a motor vehicle to avoid
arrest, but proof that the defendant actually committed
5 State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007); State v. Davlin,
263 Neb. 283, 639 N.W.2d 631 (2002).
6 Neb. Rev. Stat. § 60-430.07 (Reissue 1978).
7 State v. Clifford, 204 Neb. 41, 281 N.W.2d 223 (1979).
8 Id.
STATe v. CLAUSSeN 	633
Cite as 276 Neb. 630

the law violation for which the arrest was attempted is
not required.9
[5,6] The Nebraska Court of Appeals has applied the prin-
ciples stated in Clifford to determine the proof required by
§ 28-905. That court has held that an attempt to arrest is an
essential element of the offense of fleeing in a motor vehicle
to avoid arrest, but proof that the defendant actually commit-
ted the law violation for which the arrest was attempted is
not required.10 The Court of Appeals has also held that in a
prosecution for felony operation of a motor vehicle to avoid
arrest under § 28-905(2), there must be some articulable evi-
dence that the underlying violation for which the motorist was
fleeing to avoid arrest constituted a felony.11 We agree with
these holdings.
The evidence in this case establishes that at the time of
Claussen’s attempted arrest, he was the subject of two pending
criminal prosecutions in which he had been convicted of three
felony offenses. He had been released on bond and failed to
appear for sentencing. A capias was issued in each case “for
the arrest of Randy L. Claussen for failure to appear.” Neb.
Rev. Stat. § 29-908 (Reissue 1995) provides in relevant part:
Whoever is charged with a felony and is released from
custody under bail, recognizance, or a conditioned release
and willfully fails to appear before the court granting
such release when legally required or to surrender himself
within three days thereafter, shall be guilty of a Class IV
felony, in addition to any other penalties or forfeitures
provided by law.
Thus, the record clearly establishes that deputies attempted to
arrest Claussen for conduct which constitutes a felony and that
Claussen operated a motor vehicle to avoid such arrest. The
fact that Claussen was never formally charged with failure to
appear is immaterial.
9 Id. at 46, 281 N.W.2d at 226.
10 State v. Ellingson, 13 Neb. App. 931, 703 N.W.2d 273 (2005); State v.
Taylor, 12 Neb. App. 58, 666 N.W.2d 753 (2003); State v. Carman, 10
Neb. App. 373, 631 N.W.2d 531 (2001).
11 State v. Taylor, supra note 10.
634 	276 NeBRASKA RepORTS

CONCLUSION
For the reasons discussed, we affirm the conviction and
sentence.
affiRmed .
in Re inteRest of dustin s., a child
undeR 18 yeaRs of age .
state of nebRaska , appellee , v .
dustin s., appellant .
756 N.W.2d 277
Filed October 3, 2008. 	No. S-07-1222.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Juvenile Courts: Evidence: Appeal and Error. If an appellate court adjudges
a juvenile to meet the criteria of Neb. Rev. Stat. § 43-247(1) through (4) (Cum.
Supp. 2006), the appellate court shall affirm the disposition made by the county
court unless it is shown by clear and convincing evidence that the disposition is
not in the best interests of the juvenile.
3. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
4. Juvenile Courts: Jurisdiction: Statutes. As a statutorily created court of limited
and special jurisdiction, a juvenile court has only such authority as has been con-
ferred on it by statute.
5. Juvenile Courts. pursuant to Neb. Rev. Stat. § 43-286 (Reissue 2004), a juve-
nile court has broad discretion as to the disposition of a child found to be
delinquent.
Appeal from the County Court for Wayne County: donna f.
tayloR, Judge. Affirmed as modified.
Mandy R. Burkett for appellant.
Amy K. Wiebelhaus, Deputy Wayne County Attorney, for
appellee.
heavican , 	c.J., 	WRight , 	connolly , 	geRRaRd , 	stephan ,
mccoRmack , and milleR-leRman , JJ.
IN Re INTeReST OF DUSTIN S. 	635
Cite as 276 Neb. 635