                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         STATE V. KEITA


  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.

                                   DON D. KEITA, APPELLANT.


                           Filed December 19, 2017.      No. A-17-077.


        Appeal from the District Court for Sarpy County: DAVID K. ARTERBURN, Judge, on appeal
thereto from the County Court for Sarpy County, ROBERT C. WESTER, Judge. Judgment of District
Court affirmed.
       Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant.
       Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.


       MOORE, Chief Judge, and INBODY and BISHOP, Judges.
       MOORE, Chief Judge.
                                       I. INTRODUCTION
        Don D. Keita appeals the decision of the district court for Sarpy County affirming the order
of the county court, which convicted him of obstructing a peace officer and resisting arrest. He
contends that the county court erred in denying his motion to suppress, in admitting multiple
versions of a police report over his hearsay objection, and in denying his motion to dismiss for
insufficient evidence. For the reasons set forth below, we affirm.
                                       II. BACKGROUND
        In its amended complaint, the State charged Keita with obstructing a peace officer and
resisting arrest. Keita filed a motion to suppress which the county court overruled. The case




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proceeded to a jury trial on June 21, 2016. Keita preserved his suppression issues through
objections during trial. We summarize the trial evidence below.
        In the early hours of the morning on November 1, 2015, Officer Chvala of the Bellevue
Police Department responded to a dispatch regarding a loud noise complaint and potential
domestic violence occurrence at a third-floor unit of an apartment building. He could hear a woman
screaming as he climbed to the building’s third floor. He believed her to be in distress. When
Chvala reached the third-floor hallway, Chvala observed a man, later identified as Keita, standing
directly in front of the door to the unit that was the subject of the dispatch. Chvala approached
Keita, explained that he was investigating a noise complaint and possible domestic violence
situation, and asked him for his identification. Keita refused to identify himself, speaking to Chvala
only in expletives.
        Chvala tried to engage Keita for several minutes, but Keita did not cooperate. Keita
eventually replied “I’m leaving.” He attempted to walk past Chvala, but Chvala put his hand on
Keita’s chest and told him he could not leave. Chvala testified that because Keita stood in front of
the unit the dispatch sent him to investigate and because Keita was reluctant to cooperate with the
police investigation, he believed Keita may have been involved in -- or at least had knowledge
of -- the situation. Keita continued to argue with Chvala, and Chvala noticed Keita’s behavior
become angrier and more pronounced. Keita flexed his arms and fists, straightened his posture,
and took a “fighting stance.” Chvala’s experience taught him these behaviors were “pre-assault
indicators.” He informed Keita that while he was not arresting him, he needed to detain him while
he continued the investigation. Chvala instructed Keita to turn around so that he could handcuff
him during the detention. Keita refused to comply. Chvala asked him to submit to the handcuffs
three or four more times. Keita refused each request with an expletive.
        Officer Evans arrived as Chvala performed a “straight arm bar takedown” on Keita,
attempting to handcuff him by forcing him to the ground on his stomach. Paige Carbis, Keita’s
wife, and several other people entered the hallway to observe Keita’s struggle with the police.
Once Keita was on the ground, Chvala informed Keita that he and Evans were placing him under
arrest for obstructing their investigation. Keita continued to resist both officers’ attempts to
handcuff him. He placed his arms underneath his body so that the officers had to pull his arms to
cuff him, and he continued to argue with them. He rolled onto his back and tried to sit up. Chvala
pressed down on Keita’s chest. He instructed Keita to roll onto his stomach and put his hands
behind his back. Keita rolled over but refused to place his hands behind his back. Evans warned
Keita that she would use her Taser on him if he refused to comply. Keita continued to refuse to
place his hands behind his back. Evans activated her Taser twice to stun Keita, which prompted
Keita to place his hands behind his back. The officers then handcuffed Keita and took him into
custody.
        Keita and Carbis provided a different version of events. Keita testified that his wife and
toddler were staying with friends in the apartment unit the police were investigating. He stated that
he returned to the apartment to meet his wife and son. He knocked on the apartment door but did
not receive a response. After he waited outside the apartment for 30 or 40 seconds, Chvala
approached him, asking him to produce identification. Keita testified that after refusing to identify
himself, he offered to step back and let Chvala work. Keita denied stating he was leaving or making



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any attempt to exit the hallway. He further testified that he agreed to give Chvala his identification
before the officer performed the takedown on him. He stated that immediately after the takedown,
Evans stunned him with her Taser. He insists she subsequently stunned him two more times as he
yelled “somebody record this.”
        Carbis testified that when she came out of the apartment, she observed her husband on the
ground with two police officers above him. She saw her husband lying on the ground and not
struggling as the officers handcuffed him. She stated that after the officers handcuffed and subdued
Keita, one of the officers stunned him with a Taser three times.
        During Keita’s cross-examination of Chvala, Keita questioned the officer at length
regarding changes he made to his police report between drafts, claiming he made the changes to
avoid a civil suit. On redirect, the State offered a draft police report, the final police report, and a
warrantless arrest affidavit into evidence to rebut Keita’s claim of recent fabrication. Keita
objected to these exhibits as hearsay. The court overruled the objection, considering the documents
prior consistent statements, and received the exhibits into evidence. At the conclusion of the State’s
case-in-chief and again at the conclusion of his case, Keita moved to dismiss both counts for
insufficient evidence. The court overruled the motions. The jury found Keita guilty on both counts.
The court sentenced Keita to 30 days on each count to be served concurrently in the Sarpy County
Jail.
        Keita appealed to the district court. Among other errors, Keita asserted the county court
erred by overruling his motion to suppress, by admitting Chvala’s draft and final police reports
over his hearsay objections, and by overruling his motion to dismiss both counts of the State’s
complaint. The district court affirmed both convictions. Keita appeals the district court’s order.
                                 III. ASSIGNMENTS OF ERROR
        Keita assigns, restated, the district court erred in affirming the county court’s decision (1)
to overrule his motion to suppress the police stop and arrest of Keita, (2) to admit into evidence
the draft and final copy of Office Chvala’s police report, and (3) to overrule his motion to dismiss.
                                   IV. STANDARD OF REVIEW
        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. State v. Todd, 296 Neb. 424, 894 N.W.2d 255 (2017). Both the district court
and a higher appellate court generally review appeals from the county court for error appearing on
the record. Id. 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. Id. But we independently review questions of law
in appeals from the county court. Id.
        In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, an appellate court applies a two-part standard of review, analyzing
historical facts and questions of law separately. State v. Jasa, 297 Neb. 822, 901 N.W.2d 315
(2017). Regarding historical facts, an appellate court reviews a judgment for clear error. Id.




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Whether the facts on the record trigger or violate Fourth Amendment protections is a question of
law, which we independently review in appeals from the county court. Id.
         In proceedings where the Nebraska Evidence Rules apply, those rules control the
admissibility of evidence. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). Judicial
discretion is involved only when the rules make discretion a factor in determining admissibility.
Id. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion
of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.
Id. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Id.
         In reviewing a criminal conviction for a sufficiency of the evidence claim, the standard is
the same regardless of whether the evidence is direct, circumstantial, or a combination thereof: An
appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence. State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017). The finder
of fact decides those matters. Id. 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. Id.
                                           V. ANALYSIS
                                       1. MOTION TO SUPPRESS
       Keita assigns the county court erred in overruling his motion to suppress evidence relating
to the police stop. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the
Nebraska Constitution guarantee against unreasonable searches and seizures. Evidence obtained
as the fruit of an illegal search or seizure is inadmissible in a state prosecution and must be
excluded. State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017). To analyze the legality of the
search and seizure, we must first determine when a seizure occurred and then address whether
reasonable suspicion supported the seizure. Id.
                                  (a) Classifying Initial Detention
        To determine whether an encounter between a police officer and a citizen reaches the level
of a seizure under the Fourth Amendment to the U.S. Constitution, an appellate court employs the
analysis set forth in State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993), which describes
the three tiers of police-citizen encounters. State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016).
A tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited
through noncoercive questioning and does not involve any restraint of liberty of the citizen.
Because tier-one encounters do not rise to the level of a seizure, they are outside the realm of
Fourth Amendment protection. Id. A tier-two police-citizen encounter is an investigatory stop as
defined in the U.S. Supreme Court decision Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.
2d 889 (1968). An investigatory stop involves a brief, nonintrusive detention during a frisk for
weapons or preliminary questioning. Id. A tier-three police-citizen encounter involves a highly
intrusive or lengthy search or detention. Gilliam, supra. Tier-two and tier-three police-citizen
encounters are seizures sufficient to invoke the protections of the Fourth Amendment to the U.S.



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Constitution. Gilliam, supra. A seizure in the Fourth Amendment context occurs only if, in view
of all the circumstances surrounding the incident, a reasonable person would have believed that he
or she was not free to leave. State v. Rivera, 297 Neb. 709, 901 N.W.2d 272 (2017).
         The circumstances of the instant case support a finding that Chvala seized Keita such that
Fourth Amendment protections apply. Chvala initially detained Keita in connection with an
investigation into a noise complaint and possible domestic dispute. Because Keita was standing
directly outside the door of the apartment in question, Chvala stopped Keita and asked him for his
identification. When Keita declined to provide this information, Chvala detained Keita in an
attempt to determine his knowledge of, or involvement in, the situation inside the apartment. When
Keita continued to be uncooperative and attempted to leave, Chvala stopped him and attempted to
place him in handcuffs. If reasonable in scope, a brief, nonintrusive detention where an officer
handcuffs a suspect for initial questioning is still a tier-two investigatory stop and not a de facto
arrest. See State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). Because Chvala’s initial brief
detention of Keita was for the purpose of preliminary questioning and was reasonable in scope, we
conclude Chvala performed a tier-two investigatory stop of Keita.
                                     (b) Reasonable Suspicion
        Having classified Chvala’s detention of Keita, we must next determine whether sufficient
reasonable suspicion supported it. An investigatory stop requires only that a police officer have
specific and articulable facts sufficient to give rise to a reasonable suspicion that criminal activity
is afoot. State v. Wells, supra. See, also, Neb. Rev. Stat. § 29-829 (Reissue 2016). Whether a police
officer has a reasonable suspicion of criminal activity to justify an investigatory stop based on
sufficient articulable facts depends on the totality of the circumstances. State v. Rogers, supra. In
determining whether a police officer reasonably suspected that a person was involved in criminal
activity so as to justify an investigatory stop, courts will not consider the officer’s inchoate or
unparticularized suspicion or hunch. Id. Instead, a court will find an officer acted reasonably if he
or she acted on specific reasonable inferences drawn from the facts in light of the officer’s
experience. Wells, supra.
        Here, Chvala had ample reason to suspect Keita was involved in criminal activity. Chvala
responded to a noise complaint and possible domestic violence situation at a specific apartment
unit in the early hours of the morning. As Chvala approached the apartment building, he heard a
woman’s screams coming from the area of the apartment unit. Keita stood directly in front of the
doorway to the apartment unit when Chvala arrived. Based on Keita’s location, Chvala believed
Keita may have been involved in the situation. When Chvala spoke with Keita, he became agitated.
Keita refused to identify himself, physically tensed when he spoke with Chvala, and made
threatening gestures. Keita’s adverse reaction to Chvala and his refusal to cooperate in the
investigation gave Chvala reason to detain Keita while he investigated the disturbance in the
apartment. Based on the totality of the circumstances, Chvala had reasonable suspicion, based
upon sufficient, articulable facts, that Keita had been involved in a possible domestic violence
altercation. The district court did not err in affirming the county court’s determination. We find no
error in the county court’s denial of Keita’s motion to suppress based on a Fourth Amendment
violation.



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                                   (c) Probable Cause for Arrest
        Keita asserts that there was not probable cause to arrest him. After Keita refused Chvala’s
request to identify himself, attempted to leave, and exhibited threatening behavior, the police
officers physically restrained him and placed him under arrest. Because we find the officers had
probable cause to arrest Keita for obstructing a peace officer, we find his detention did not
contravene the Fourth Amendment so as to implicate the exclusionary rule.
        An arrest is a highly intrusive seizure of a person that must be justified by probable cause.
State v. Jasa, 297 Neb. 822, 901 N.W.2d 315 (2017). When a law enforcement officer has
knowledge, based on information reasonably trustworthy under the circumstances, which justifies
a prudent belief that a suspect is committing or has committed a crime, the officer has probable
cause to arrest without a warrant. State v. Rothenberger, 294 Neb. 810, 885 N.W.2d 23 (2016). In
cases involving probable cause to support a warrantless arrest, probable cause is a flexible,
commonsense standard that depends on the totality of the circumstances. State v. Pester, 294 Neb.
995, 885 N.W.2d 713 (2016). See, also, State v. McCrickert, 24 Neb. App. 496, 890 N.W.2d 798
(2017). Probable cause is not defeated because an officer incorrectly believes that a crime has been
or is being committed. Id. But implicit in the probable cause standard is the requirement that a law
enforcement officer’s mistakes be reasonable. Id.
        Here, probable cause existed to arrest Keita for obstructing a peace officer. While Chvala
investigated the disturbance, Keita refused to identify himself and refused to answer Chvala’s
questions. He attempted to leave. He responded to Chvala with expletives and threatening,
aggressive behavior. Chvala asked to place Keita in handcuffs, which he refused three or four
times, again with expletives. Keita’s active resistance to the police officers’ investigation gave
them probable cause to believe that he was obstructing a peace officer. In addition, probable cause
existed to believe that Keita was resisting arrest. As the officers were attempting to arrest Keita
for obstructing their investigation, Keita physically resisted by struggling with the officers, by
refusing to place his arms behind him, by rolling over on the floor, and by continuing to resist
being handcuffed.
        We conclude that the county court did not err in overruling Keita’s motion to suppress
evidence arising out of his detention and arrest and the district court did not err in affirming the
decision of the county court.
                                2. ADMISSION OF POLICE REPORTS
        Keita assigns the county court erred in admitting Chvala’s draft and final police reports
into evidence. Keita contends his references to the exhibits on his cross-examination of Chvala
were not a charge of recent fabrication. Instead, he argues he used the reports only to impeach the
officer’s credibility on the stand, and therefore, the trial court erred in admitting them over his
hearsay objection. We disagree.
        Hearsay is “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted[.]” Neb. Rev. Stat.
§ 27-801(3) (Reissue 2016). Hearsay is not admissible at trial except as the Nebraska Evidence
Rules otherwise provide. Neb. Rev. Stat. § 27-802 (Reissue 2016). Nebraska Evidence Rule
801(4)(a)(ii), often referred to as the “prior consistent statement” exclusion, provides that a



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statement is not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement is . . . consistent with his testimony
and is offered to rebut an express or implied charge against him of recent fabrication or improper
influence or motive.” However, one may impeach for lack of credibility without going so far as to
charge recent fabrication. State v. Buechler, 253 Neb. 727, 572 N.W.2d 65 (1998). The trial court
has discretion to distinguish between the impeachment of credibility and a charge of recent
fabrication. Id. An appellate court will not find an abuse of discretion in a trial court’s
determination where the impeachment is susceptible to either interpretation. Id.
         Chvala testified at trial about the events surrounding Keita’s detention and arrest. Keita
cross-examined Chvala extensively about his draft and final police reports, accusing him of
creating multiple versions and revisions of his report. He went on to accuse Chvala of testifying to
yet another version of events at trial. During the State’s redirect examination of Chvala, it offered
a draft of Chvala’s report into evidence. Keita objected on the basis of hearsay. During a sidebar
conference, Keita asserted that Chvala created multiple versions of Keita’s arrest to avoid civil
liability. The trial court indicated that it would receive the draft and final reports into evidence.
The court found that the State offered the reports to show that they were consistent with Chvala’s
testimony and to rebut an express or implied charge against Chvala of recent fabrication or
improper influence. The trial court had discretion to distinguish between impeachment of
credibility and a charge of recent fabrication. See State v. Buechler, supra. The trial court did not
abuse its discretion in finding that the State offered the reports to rebut a charge of recent
fabrication. Thus, the police reports were properly received into evidence as prior consistent
statements under rule 801(4)(a)(ii).
                                   3. SUFFICIENCY OF EVIDENCE
        Keita assigns the district court erred in overruling his motion to dismiss both charges
against him. Keita argues that he did not use physical force to resist arrest or obstruct a peace
officer, and therefore, the record provides no evidence to support his convictions. As discussed
below, neither the evidence nor the law supports Keita’s argument.
                                   (a) Obstructing Peace Officer
       The Nebraska statute that proscribes obstructing a peace officer prohibits more than
physical interference with a peace officer in his or her work. It provides as follows:
                (1) A person commits the offense of obstructing a peace officer, when, by using
       or threatening to use violence, force, physical interference, or obstacle, he or she
       intentionally obstructs, impairs, or hinders (a) the enforcement of the penal law or the
       preservation of the peace by a peace officer or judge acting under color of his or her official
       authority . . . .

Neb. Rev. Stat. § 28-906 (Reissue 2016).
        In this case, the record shows that Keita was intentionally noncompliant with the police
investigation from the moment Chvala encountered him. When Chvala told Keita he could not
leave, Keita flexed his fists and arm muscles and took a “fighting stance” which Chvala’s




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experience lead him to believe was pre-assaultive. Thus, a reasonable trier of fact could find that
Chvala threatened to use force, physical interference, or obstacle to hinder Chvala’s investigation
and efforts to enforce the law.
                                       (b) Resisting Arrest
       In relevant part, the Nebraska statute that criminalizes resisting arrest provides as follows:
               (1) A person commits the offense of resisting arrest if, while intentionally
       preventing or attempting to prevent a peace officer, acting under color of his or her official
       authority, from effecting an arrest of the actor or another, he or she:
               (a) Uses or threatens to use physical force or violence against the peace officer or
       another; or
               (b) Uses any other means which creates a substantial risk of causing physical injury
       to the peace officer or another; or
               (c) Employs means requiring substantial force to overcome resistance to effecting
       the arrest.

Neb. Rev. Stat. § 28-904 (Reissue 2016).
        Here, Keita struggled extensively with the officers as they attempted to arrest him for
obstructing their investigation. Keita physically resisted the officers by moving his arms and
rolling over on his back so that the officers were unable to place him in handcuffs. The officers
were required to use substantial force to overcome Keita’s resistance. In view of the evidence, we
find a rational trier of fact could have found the essential elements of resisting arrest beyond a
reasonable doubt.
                                       VI. CONCLUSION
       In sum, having considered and rejected Keita’s assignments of error, we affirm his
conviction and sentence.
                                                                               AFFIRMED.




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