                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                      STATE V. CAHUICHCHII


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                             V.
                               MARIO A. CAHUICHCHII, APPELLANT.


                             Filed January 13, 2015.    No. A-13-1117.


       Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge.
Affirmed.
       Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant.
       Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.


       IRWIN, INBODY, and PIRTLE, Judges.
       PIRTLE, Judge.
                                         INTRODUCTION
        Mario A. Cahuichchii appeals his convictions in the district court for Sarpy County for
third degree assault on an officer and resisting arrest. He challenges the court’s refusal to give his
proposed jury instructions regarding self-defense and the use of force by a police officer when
making an arrest, and he argues that the evidence was insufficient to convict him of the charges.
Having found no merit to his assignments of error, we affirm.
                                         BACKGROUND
        The State filed an information charging Cahuichchii with third degree assault on an
officer, obstructing a peace officer, and resisting arrest. The obstructing a peace officer charge
was dismissed by the State. Cahuichchii pled not guilty to the remaining two charges, and a jury
trial was held.




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        The evidence presented by the State at trial was as follows: Bellevue police officers
Jordan Filippi and Chad Heller, a police dog handler, were on duty on May 8, 2013, when they
were dispatched to a vacant apartment building in Bellevue regarding a burglary in progress.
Filippi and Heller, along with Heller’s police dog, arrived at the scene in separate vehicles within
minutes of the call. Heller spoke with the individual who had reported the burglary, and while
they were talking, the individual saw the suspect and pointed out where he was located. Filippi
and Heller took off running behind the garages of the apartment building where there was an
open field with a fence. Bellevue police officer Brian Benshoof arrived at the scene about this
time and joined Filippi and Heller. When the officers got behind the garages, they observed a
man crouched down low to the ground next to the fence. He was wearing dark clothes, which
matched the description of the suspect the officers had received from dispatch. The man was
later identified as Cahuichchii.
        Cahuichchii looked at the officers, and then looked to his right and left, leading the
officers to believe that he was looking for a way to escape. Filippi and Benshoof testified that
they could not see Cahuichchii’s hands, because he had them in the waist of his pants or in front
of him in his waist area. Heller testified that when he arrived, he could see Cahuichchii’s left
hand near his waistband, but could not see his right hand. The officers testified that not being
able to see both of Cahuichchii’s hands and/or his having them near his waistband was a safety
concern for the officers because they were uncertain if he had a weapon and individuals
commonly keep weapons in the waistband on their pants. Based on the safety concern, Filippi
and Heller both had their guns drawn but did not have them pointed at Cahuichchii.
        Filippi and Heller repeatedly commanded Cahuichchii in both Spanish and English to
show his hands or to put his hands up. Cahuichchii did not comply with the officers’ commands.
The only response he gave was “por que,” which is Spanish for “why” or “for what.” Benshoof
told Cahuichchii that if he did not comply, that a “Taser” would be used. Cahuichchii did not
comply with the officers’ requests to show his hands, and Benshoof deployed the Taser.
Cahuichchii was immobilized by the Taser and fell to the ground, landing on his back.
        Filippi testified that the Taser was used to try to get Cahuichchii to comply, rather than a
hands-on approach, because the officers did not know if he was armed. Benshoof testified the
Taser was the most effective way to maintain officer safety and limit any injury to Cahuichchii at
that time.
        Filippi testified that after the Taser was deployed and Cahuichchii fell to the ground, he
told Cahuichchii to roll over onto his stomach so he could be handcuffed. Filippi directed him to
do so in both English and Spanish. Cahuichchii again did not comply. Cahuichchii sat up, and as
he was trying to stand up, Filippi was able to handcuff his left hand. Cahuichchii began pulling
away and tried to stand up again. Filippi pulled him back down and tried to roll him over onto his
stomach so he could get his other hand in the handcuffs. Filippi was directing Cahuichchii to
give him his hand, but he was noncompliant. Heller tried to grab Cahuichchii’s right hand, but he
was lying on his right side with his right hand underneath him and was actively fighting and
trying to pull away. At some point during the encounter, Filippi struck Cahuichchii twice in the
ribs with his knee in an effort to get him to comply with the officers’ commands.
        While Filippi and Heller were wrestling with Cahuichchii to get the handcuffs on him,
Heller’s police dog bit Cahuichchii’s left arm. Heller testified that the dog bit Cahuichchii for


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about a second, and then Heller called him off. Cahuichchii continued to be noncompliant, so
Heller gave the dog a command to bite Cahuichchii again, this time on the upper left back.
Cahuichchii started screaming, and Heller called the dog off, assuming that Cahuichchii would
now comply. Cahuichchii continued to struggle with the officers, preventing them from getting
him in handcuffs. Cahuichchii then bit Heller on the arm, continuing to bite him for 15 to 20
seconds. While Cahuichchii was biting Heller, Heller gave the police dog a command, and the
dog bit Cahuichchii again. Heller also applied pressure under Cahuichchii’s jaw until he let go of
Heller’s arm. At that point, Heller got Cahuichchii’s right arm and Filippi and Benshoof placed
the handcuffs on Cahuichchii’s right hand and he was secured. Filippi and Benshoof estimated
that the encounter lasted 3 to 3½ minutes before Cahuichchii was detained in handcuffs.
Benshoof testified that 3 to 3½ minutes is a long time to effectuate a detention of a suspect.
        Filippi testified that the Bellevue Police Department has a policy on the use of force with
which he was familiar. A copy of the department’s use of force policy was received in evidence.
The policy gives the officers guidelines on the reasonable use of force and lists factors used to
determine the reasonableness of force. It also states:
        Officers are authorized by law to use force that is reasonable and necessary, given the
        facts and circumstances perceived or known to them at the moment force is used.
        Officers are authorized to use reasonable force to achieve their lawful objectives and to
        effectively bring an incident and/or person(s) under control.
Filippi testified that he and the other officers took those guidelines into consideration when they
approached Cahuichchii. He testified that because the officers were responding to a call of a
felony in progress, they used more caution than they would have had it been a misdemeanor
reported. Benshoof also testified that a burglary call is considered a higher-risk call, because an
offender is more likely to have a weapon.
        Heller testified that the Bellevue Police Department has a separate police service dog use
of force policy, and a copy of the policy was entered into evidence. He testified that there is a
three-factor test that is considered before using the police dog to apprehend a suspect: the
severity of the crime, the threat the individual poses to law enforcement or others, and whether
the person is actively resisting or attempting to flee. He testified that all of the factors were first
met at the time that Filippi handcuffed Cahuichchii’s left hand and he started to pull away and
tried to stand up. Heller also testified that he is familiar with the Bellevue Police Department’s
use of force policy and that he followed the principles of that policy during the encounter with
Cahuichchii. Heller testified that the use of force policy requires that the force used in a given
situation be necessary and reasonable. He testified that the force used during the encounter was
necessary and reasonable in the officers’ attempt to gain Cahuichchii’s compliance and was
necessary for the officers’ safety.
        After the State rested, the defense called one witness, Cahuichchii’s wife. She testified
that Cahuichchii can speak and understand some English, but that he primarily speaks Spanish.
She testified that while at the hospital where Cahuichchii was taken after he was detained, she
had to translate to Spanish what the medical staff was saying in English so Cahuichchii could
understand what was being said.




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        The State subsequently called a rebuttal witness, Brad Victor. Victor, the jail deputy for
the Sarpy County sheriff’s office, testified that Cahuichchii was an inmate at the jail after his
arrest, that Cahuichchii spoke to him in English, and that Victor did not have any problem
understanding what Cahuichchii was saying to him. Victor also testified that he made statements
to Cahuichchii in English and that Cahuichchii seemed to understand what he was saying.
        Prior to the case being submitted to the jury, a jury instruction conference was held.
Cahuichchii proposed two instructions--one regarding self-defense, and the other regarding use
of force by police officers in effecting an arrest. The State objected to the instructions, and the
trial court refused to give either instruction to the jury.
        The jury found Cahuichchii guilty on both charges. The trial court subsequently
sentenced Cahuichchii to 1 to 3 years’ imprisonment on the third degree assault on an officer
conviction and 1 year’s imprisonment on the resisting arrest conviction. The sentences were
ordered to be served concurrently with each other.
                                   ASSIGNMENTS OF ERROR
        Cahuichchii assigns that the trial court erred in (1) rejecting his proposed instruction
regarding self-defense, (2) rejecting his proposed instruction regarding use of force by a police
officer, and (3) finding that there was sufficient evidence to support a guilty verdict on both
charges.
                                    STANDARD OF REVIEW
        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. Morgan, 286 Neb. 556,
837 N.W.2d 543 (2013).
        Regardless of whether the evidence is direct, circumstantial, or a combination thereof,
and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the
evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal
conviction, 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, and a conviction will
be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and
construed most favorably to the State, is sufficient to support the conviction. State v. Ruegge, 21
Neb. App. 249, 837 N.W.2d 593 (2013).
                                            ANALYSIS
Jury Instruction on Self-Defense.
        Cahuichchii assigns that the trial court erred in failing to give the jury his proposed
instruction regarding self-defense. The instruction on self-defense proffered by Cahuichchii
stated as follows: “In prosecutions for assaulting a police officer, or resisting arrest, a trial court
must instruct the jury on the issue of self-defense where there is any evidence adduced which
raises a legally cognizable claim that the officer used unreasonable force in making the arrest.”
The proffered instruction was based on the Nebraska Supreme Court’s holding in State v.



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Yeutter, 252 Neb. 857, 566 N.W.2d 387 (1997). In that case, the defendant was convicted of
third degree assault on an officer, obstructing a peace officer, and resisting arrest. On petition for
further review, the defendant argued that the trial court erred in failing to give the jury an
instruction on self-defense. The court noted that subsection (2) of Neb. Rev. Stat. § 28-1409
(Reissue 2008) (the self-defense statute) provides that “[t]he use of such force is not justifiable
. . . to resist an arrest which the actor knows is being made by a peace officer, although the arrest
is unlawful.” The court stated that because it was uncontroverted that the defendant knew that the
arrest was being made by a police officer, he was not justified in using force on the basis that he
was being arrested unlawfully. The court further stated that regardless, the defendant’s assigned
error did not focus on the unlawfulness of his arrest. Instead, the defendant asserted that he was
entitled to a jury instruction on self-defense.
          The Supreme Court in State v. Yeutter, supra, concluded that in order to determine the
merits of the defendant’s assigned error, it had to determine, as a matter of first impression, the
quality and quantity of evidence necessary to raise a duty on the part of the trial court to instruct
the jury on self-defense in prosecutions for assaulting an officer, obstructing a peace officer, or
resisting arrest. The Supreme Court ultimately held that in prosecutions for assaulting an officer,
obstructing a peace officer, or resisting arrest, a trial court must instruct the jury on the issue of
self-defense when there is any evidence adduced which raises a legally cognizable claim that the
police officer used unreasonable force in making the arrest.
          In the present case, as in State v. Yeutter, supra, Cahuichchii argues that he was entitled
to a jury instruction on self-defense. The State objected to Cahuichchii’s proposed self-defense
instruction on the basis that it was a statement of law regarding when a self-defense instruction is
warranted, and not a jury instruction in and of itself. We agree. However, whether requested to
do so or not, a trial court has the duty to instruct the jury on issues presented by the pleadings
and the evidence. Because of this duty, the trial court, on its own motion, must correctly instruct
on the law. State v. Yeutter, supra. Accordingly, we will discuss whether a proper self-defense
instruction was warranted based on the evidence, i.e., whether there is any evidence adduced
which raises a legally cognizable claim that the police officer used unreasonable force in making
the arrest.
          When the officers first saw Cahuichchii, he was crouched down next to a fence with his
hands near his waist, in such a way that the officers could not tell if he had a weapon. The
officers told him repeatedly in English and in Spanish to put his hands up. Cahuichchii did not
comply, but gave some sort of indication that he understood what he was being asked to do in
that he kept responding “por que,” which means “why” or “for what.” When Cahuichchii did not
comply after numerous requests, Benshoof displayed his Taser and told Cahuichchii that it would
be used on him if he refused to comply. Subsequently, Benshoof deployed the Taser and
Cahuichchii fell to the ground. After regaining his mobility, Cahuichchii tried to get away and
began resisting the officers’ attempts to get him in handcuffs. Filippi struck Cahuichchii twice in
the ribs with his knee in an effort to get him to comply with the officers’ commands. The officers
got his left hand in the handcuffs, but were unable to get the right hand in handcuffs because
Cahuichchii was lying on his left side with his right hand under him. While Filippi and Heller
were wrestling with Cahuichchii to get the handcuffs on, the police dog bit Cahuichchii briefly
on his left arm. Cahuichchii continued to be noncompliant, so Heller gave the police dog a


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command to bite Cahuichchii again, this time on his back. Cahuichchii continued to struggle
with the officers and then bit Heller on his arm. At that point, Heller gave the police dog a
command to bite Cahuichchii a third time. Heller also applied pressure under Cahuichchii’s jaw
until he stopped biting Heller’s arm. The officers were finally able to handcuff Cahuichchii’s
right hand to secure him.
         The uncontroverted evidence shows that the Taser was not employed until after
Cahuichchii refused to show his hands after numerous commands to do so. Filippi testified that
the Taser was used to try to get Cahuichchii to comply, rather than a hands-on approach, because
the officers did not know if he was armed. Benshoof testified that the Taser was the most
effective way to maintain officer safety and limit any injury to Cahuichchii. When the Taser was
not successful and a struggle ensued, Filippi struck Cahuichchii twice in the ribs with his knee to
try to get him to stop resisting. The police dog was used after Cahuichchii continued to struggle
with the officers on the ground and resisted their effort to put him in handcuffs. Heller put
pressure under Cahuichchii’s jaw when Cahuichchii was biting Heller and he was trying to get
him to stop biting his arm.
         In addition to the evidence regarding the actions of the police officers in arresting
Cahuichchii, the Bellevue Police Department’s use of force policy and the “Police Service Dogs
and the Use of Force” policy were entered into evidence. There is nothing in the evidence to
show that the officers did not follow those procedures. Filippi and Heller both testified that the
policies were followed during the encounter with Cahuichchii, and Heller testified that all of the
factors used to determine when the police dog can be used to apprehend a suspect were met.
Heller further testified that the force used during the encounter was necessary and reasonable in
the officers’ attempt to gain Cahuichchii’s compliance and was necessary for the officers’ safety.
         We conclude that Cahuichchii failed to adduce any evidence which raised a legally
cognizable claim that the police officers used unreasonable force in making the arrest.
Accordingly, Cahuichchii was not entitled to a self-defense instruction. His first assignment of
error is without merit.
Jury Instruction on Excessive Use of Force.
        Cahuichchii next argues that the trial court erred in refusing to give his proposed jury
instruction regarding the use of force by a police officer when making an arrest. The instruction
he proposed stated as follows: “A police officer in making an arrest must use only reasonable
force, which is that amount of force which an ordinary, prudent, and intelligent person with the
knowledge and in the situation of the arresting police officer would have deemed necessary
under the circumstances.”
        Based on our conclusion that a self-defense instruction was not warranted because there
was no evidence which raised a legally cognizable claim that the police officers used
unreasonable force in making the arrest, Cahuichchii’s proposed use of force instruction
becomes unnecessary. There was no evidence of unreasonable force by the officers, so there is
no reason to give a related instruction defining “reasonable force.” Although the instruction may
be a correct statement of the law, the instruction is not warranted by the evidence and
Cahuichchii was not prejudiced by the court’s refusal to give the instruction. See State v.
Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013). The level of force a police officer may lawfully



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use when making an arrest is not at issue. Cahuichchii was charged with assaulting a police
officer and resisting arrest. Thus, the case is about the force Cahuichchii used against the police
officer, not the force used by the officer.
Sufficiency of Evidence.
        Cahuichchii next assigns that the evidence was insufficient to convict him of third degree
assault on a police officer and resisting arrest. His argument is based on the presumption that if
his proposed instructions had been given to the jury, the jury would have found that the officers
used excessive force, and that he was justified in biting Heller. Given our determination that the
proposed instructions were not warranted, Cahuichchii’s sufficiency of the evidence argument
based on those same instructions also fails.
        In any event, the evidence was sufficient to support a guilty verdict on both charges.
Third degree assault of a police officer requires the State to prove beyond a reasonable doubt that
Cahuichchii intentionally, knowingly, or recklessly caused bodily injury to Officer Heller, a
peace officer, while Heller was engaged in the official performance of his duties. Neb. Rev. Stat.
§ 28-931 (Cum. Supp. 2012). “Bodily injury” is defined as physical pain, illness, or any
impairment of physical condition. Neb. Rev. Stat. § 28-109 (Reissue 2008).
        The undisputed evidence shows that Cahuichchii bit Heller on the arm causing him
bodily injury. In addition, Heller was in his police uniform and on duty at the time. He initially
approached Cahuichchii as a result of being dispatched to investigate a burglary and
subsequently arrested him as a result of Cahuichchii’s failure to comply with Heller’s and the
other officers’ commands. Thus, Heller was clearly in the official performance of his duties. The
evidence was sufficient to support a guilty verdict on the third degree assault on a police officer
charge.
        In regard to resisting arrest, the State had to prove that Cahuichchii, while intentionally
preventing or attempting to prevent a peace officer acting under color of his official authority
from effecting an arrest of the actor, used or threatened to use physical force or violence against
the peace officer, used any other means which created a substantial risk of causing physical
injury to the peace officer, or employed means requiring substantial force to overcome resistance
to effecting the arrest. Neb. Rev. Stat. § 28-904 (Reissue 2008).
        If an individual struggles while officers are working to arrest him, he commits the crime
of resisting arrest. In State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001), the Nebraska
Supreme Court determined that a defendant’s conduct in resisting handcuffing and struggling
after she had been informed she was under arrest was sufficient to sustain her conviction for
resisting arrest. However, a police officer is not required to verbally inform an individual he is
under arrest, if the officer’s conduct indicates an arrest. See U.S. v. Sledge, 460 F.3d 963 (8th
Cir. 2006) (interpreting Nebraska law).
        In the present case, Cahuichchii engaged the officers--Heller, Filippi, and Benshoof--in a
substantial physical altercation. During the altercation, Cahuichchii physically resisted the
officers’ attempts to gain control and to handcuff him. During the altercation, Heller suffered
physical injury. Although the officers did not testify that they verbally advised Cahuichchii that
he was under arrest, their intent to arrest him was evident from their actions.




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        The evidence showed that Cahuichchii used physical force or violence against Heller
while intentionally attempting to prevent the officers’ from arresting him. His actions also
required three police officers to use substantial force to overcome Cahuichchii’s resistance to
effect the arrest. Viewing the evidence in the light most favorable to the State, we find the
evidence was sufficient to support Cahuichchii’s conviction for resisting arrest.
                                        CONCLUSION
        We conclude that the trial court did not err in refusing to give Cahuichchii’s proposed
jury instructions regarding self-defense and the use of force by police officers when making an
arrest. We further conclude that there was sufficient evidence to support a guilty verdict on the
charges against Cahuichchii. Accordingly, the judgment of the trial court is affirmed.
                                                                                       AFFIRMED.




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