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04/10/2020 08:07 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        305 Nebraska Reports
                                                   STATE v. GOMEZ
                                                  Cite as 305 Neb. 222




                                        State of Nebraska, appellee, v.
                                        Domingo Gomez III, appellant.
                                                    ___ N.W.2d ___

                                          Filed March 6, 2020.    No. S-19-369.

                 1. 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.
                 2. Criminal Law: Statutes: Legislature. In Nebraska, all crimes are statu-
                    tory and no act is criminal unless the Legislature has in express terms
                    declared it to be so.

                  Appeal from the District Court for Scotts Bluff County, Leo
               P. Dobrovolny, Judge, on appeal thereto from the County
               Court for Scotts Bluff County, James M. Worden, Judge.
               Judgment of District Court affirmed.
                 Darin J. Knepper, Deputy Scotts Bluff County Public
               Defender, for appellant.
                  Douglas J. Peterson, Attorney General, and Matthew Lewis
               for appellee.
                 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
               and Papik, JJ.
                  Papik, J.
                  Domingo Gomez III challenges his conviction for violat-
               ing a domestic abuse protection order. He contends that his
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. GOMEZ
                       Cite as 305 Neb. 222

conviction must be reversed because the service return the
State introduced at trial did not specifically state that Gomez
was served with the protection order he allegedly violated.
We affirm his conviction. While the State was required to
show that Gomez was personally served with the protec-
tion order, we find there was sufficient evidence of per-
sonal service.

                        BACKGROUND
County Court Bench Trial.
   The State charged Gomez in county court with violating a
domestic abuse protection order, which generally prohibited
him from communicating with Michaela Arellano, the mother
of his child. Evidence introduced at the subsequent bench trial
showed that the district court for Scotts Bluff County entered
an ex parte domestic abuse protection order against Gomez
on November 28, 2017. The ex parte protection order, among
other things, prohibited Gomez from “telephoning, contacting,
or otherwise communicating with” Arellano, except to arrange
visitation with the parties’ minor child. Gomez was personally
served with the ex parte protection order a few days after it
was entered.
   After Gomez did not appear at a subsequent hearing and
show cause why the ex parte protection order should be
rescinded, the district court entered an order affirming the ex
parte protection order on December 28, 2017. The order stated
that it would remain in effect for a period of 1 year from the
date the ex parte protection order was entered.
   Much of the evidence at trial concerned whether Gomez
was personally served with the order affirming the ex parte
protection order. Over Gomez’ objections, the county court
received exhibit 3, which included a cover sheet and a serv­
ice return, both bearing the document identification number
“71215” and both listing Arellano and Gomez as the parties
in the civil case that resulted in the entry of the protection
order at issue. The cover sheet instructed the Scotts Bluff
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. GOMEZ
                        Cite as 305 Neb. 222

County sheriff to “serve the following certified copies: Order
Affirming Domestic Abuse Protection Order with Ex Parte
Order attached.” The service return, signed by Matt Dodge,
certified that on January 4, 2018, Gomez was served with
“Doc. No. 71215 a Cover Sheet with attachments” by personal
service. The service return indicated that service was com-
pleted at “the hospital.”
   The county court also received exhibit 4 over Gomez’ objec-
tions. Exhibit 4 contained a certified copy of the cover sheet
described above, the order affirming the ex parte protection
order, and the ex parte protection order.
   The State also called Dodge to testify. Dodge, a deputy
sheriff with the Scotts Bluff County sheriff’s office, testified
that he had previously served Gomez with legal papers. He
recalled that after unsuccessful attempts to contact Gomez at
his home, he met Gomez at a local hospital and “gave him
the papers.” Dodge testified that he signed the service return
in exhibit 3. He also testified that he did not serve Gomez
with just the cover sheet, but that he served Gomez with the
attachments to the cover sheet reflected in exhibit 4—the order
affirming the ex parte protection order and the ex parte protec-
tion order.
   Arellano also testified at trial regarding calls Gomez made
to her in February 2018. She testified that these calls were not
for the purpose of arranging visitation with their child.
   At the conclusion of evidence in the bench trial, counsel for
Gomez argued that Gomez could not be convicted, because the
service return did not specifically state that Gomez had been
served with the order affirming the ex parte protection order.
   The county court found Gomez guilty and sentenced him
accordingly. It explained on the record that in its view, the
State demonstrated beyond a reasonable doubt that Gomez was
served with the order affirming the ex parte protection order
and that he subsequently contacted Arellano for purposes unre-
lated to child visitation in violation of that order.
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. GOMEZ
                        Cite as 305 Neb. 222

Appeal to District Court.
   Gomez appealed his conviction to the district court. He con-
tended that there was insufficient evidence that he was person-
ally served with the protection order.
   The district court affirmed his conviction. It observed that
Gomez had not identified any law requiring that the return of
service specifically identify each document that was served and
concluded that there was sufficient evidence that Gomez was
personally served with the protection order.

                   ASSIGNMENT OF ERROR
   Gomez assigns one error on appeal. He contends, rephrased,
that the district court erred by finding there was sufficient evi-
dence that he was personally served with the order affirming
the ex parte protection order.

                  STANDARD OF REVIEW
   [1] 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. State v. Stubbendieck, 302 Neb.
702, 924 N.W.2d 711 (2019).

                          ANALYSIS
   Gomez argues that his conviction must be overturned because
the State introduced insufficient evidence that he was served
with the order affirming the ex parte protection order. Gomez’
argument rests on two propositions: (1) that personal service
of the protection order is an essential element of the crime of
which he was convicted and (2) that the record contains insuf-
ficient evidence of such personal service. As we will explain,
we generally agree with Gomez on the former proposition but
disagree on the latter.
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          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                          STATE v. GOMEZ
                         Cite as 305 Neb. 222

Elements of Offense.
   Gomez was charged with and convicted of violating Neb.
Rev. Stat. § 42-924(4) (Cum. Supp. 2018). That subsection
provides as follows:
       Any person who knowingly violates a protection order
       issued pursuant to this section or section 42-931 after
       service or notice as described in subsection (2) of section
       42-926 shall be guilty of 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.
   [2] In Nebraska, all crimes are statutory, and no act is crimi-
nal unless the Legislature has in express terms declared it to
be so. State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019).
Accordingly, to determine the elements of a crime, we look to
the text of the operative statute. Id. Section 42-924(4) makes
the knowing violation of certain protection orders a crime. By
its terms, the statute requires proof of the following: (1) service
or notice as described in Neb. Rev. Stat. § 42-926(2) (Reissue
2016) and (2) a subsequent knowing violation of a qualifying
protection order. Because the crime can be established with
proof of either service or the notice described in § 42-926(2),
it is not technically accurate to describe service alone as an
essential element of the crime. We do read the statute, however,
to make either service or the notice described in § 42-926(2) an
essential element.
   This reading of § 42-924(4) is consistent with our decision
in State v. Graff, 282 Neb. 746, 810 N.W.2d 140 (2011). In
Graff, we interpreted substantively similar language in a statute
governing harassment protection orders to allow for a crimi-
nal conviction upon a showing that a defendant knowingly
violated a protection order after service. See Neb. Rev. Stat.
§ 28-311.09(4) (Reissue 2008).
   We also concluded in Graff that personal service was
required because the statute governing service of harassment
protection orders required it. See § 28-311.09(9)(a). Similar
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          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                          STATE v. GOMEZ
                         Cite as 305 Neb. 222

language requires personal service of domestic abuse protec-
tion orders. See § 42-926(1). Following our reasoning in Graff,
we conclude that in cases alleging a violation of § 42-924(4),
in which the defendant does not receive the notice described
in § 42-926(2), the State must demonstrate that the defendant
was personally served with the protection order.

Sufficiency of Evidence
of Personal Service.
   While we agree with Gomez that the State was required
to demonstrate that he was personally served with the order
affirming the ex parte protection order, we cannot agree that
there was insufficient evidence of such service.
   According to Gomez, the only way the State could dem-
onstrate the requisite personal service was through a service
return. He also contends that in the service return, the officer
must specifically certify that he or she served the protection
order. He asserts that the service return offered into evidence
by the State is deficient in this respect because it refers gener-
ally to a cover sheet with attachments rather than to a protec-
tion order.
   In support of his argument that the State must prove
serv­ice in this particular way, Gomez relies on language in
§ 42-926(1) providing that once a domestic abuse protection
order is issued, the clerk of the court is to give it to the sher-
iff’s office and that upon receipt, the sheriff’s office “shall
forthwith serve the protection order upon the respondent and
file its return thereon with the clerk of the court which issued
the protection order within fourteen days of the issuance of
the protection order.” Because the service return here does
not refer specifically to service of a protection order, Gomez
claims that the sheriff’s office did not “file its return thereon,”
as provided in § 42-926.
   Gomez’ reliance on the provisions in § 42-926 regard-
ing the return of service is misplaced. As discussed above,
§ 42-924(4) allows a defendant to be convicted if he or she
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. GOMEZ
                        Cite as 305 Neb. 222

knowingly violates a domestic abuse protection order after
service of the protection order. Gomez is essentially asking us
to make punctilious compliance with the service return provi-
sions of § 42-926(1) an essential element of the crime defined
in § 42-924(4). But because § 42-924(4) says nothing about
the return of service, such an interpretation would run counter
to our practice of strictly construing penal statutes and not
supplying missing words or sentences to make clear that which
is indefinite, or to supply that which is not there. See State v.
Duncan, 294 Neb. 162, 882 N.W.2d 650 (2016).
   We note that it is far from anomalous to permit a party to
prove service of civil process even if the process server fails
to comply with statutory direction regarding the service return.
Both a Nebraska civil procedure statute and the Federal Rules
of Civil Procedure provide that the failure to make proof of
service or delay in doing so does not affect the validity of the
service. See, Neb. Rev. Stat. § 25-507.01 (Reissue 2016); Fed.
R. Civ. P. 4(l)(3). Such provisions “prevent[] a defendant who
has been properly served from attacking the validity of service
on the technical ground of the process server’s failure to make
return in timely fashion, or because the return is deficient in
some way.” 4B Charles Alan Wright et al., Federal Practice
and Procedure § 1130 at 210-11 (4th ed. 2015). The fact that
§ 42-924(4) allows a defendant to be convicted of violating a
domestic abuse protection order upon a showing of service,
as opposed to proper return of service, serves the same func-
tion here.
   This leaves only the question of whether there was suffi-
cient evidence that Gomez was served with the order affirm-
ing the ex parte protection order. On this question, we do not
hesitate to find that there was. The face of the cover sheet
indicates that the sheriff’s office was instructed to serve the
order affirming the ex parte protection order and the ex parte
protection order. Dodge testified that he met Gomez at a local
hospital and that he provided Gomez with the attachments
to the cover sheet in exhibit 4, i.e., the order affirming the
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                         STATE v. GOMEZ
                        Cite as 305 Neb. 222

ex parte protection order and the ex parte protection order.
Dodge also testified that he signed the service return indicat-
ing he served the cover sheet and attachments on Gomez at a
hospital on January 4, 2018. Viewing this evidence in the light
most favorable to the prosecution, a rational trier of fact could
find beyond a reasonable doubt that Gomez was served with
the order affirming the ex parte protection order.

                       CONCLUSION
  Finding no merit in the sole assignment of error, we affirm.
                                                  Affirmed.
  Freudenberg, J., not participating.
