State v. Gomez, 939 N.W.2d 763

On Nov. 28, 2017, a Scotts Bluff County district court entered an ex parte domestic abuse protection order prohibiting Gomez from contacting Michaela Arellano except to arrange child visitation.
Gomez was personally served with the ex parte order a few days after issuance; he failed to appear at the next hearing and the district court on Dec. 28, 2017 entered an order affirming the ex parte order for one year.
The prosecution relied on a cover sheet and a service return (Doc. No. 71215) showing personal service on Jan. 4, 2018 at a hospital; the return described service as a “Cover Sheet with attachments.”
Deputy Matt Dodge testified he met Gomez at the hospital, gave him the cover sheet and the attachments (the order affirming the ex parte order and the ex parte order), and signed the service return.
Arellano testified Gomez called her in Feb. 2018 for reasons unrelated to child visitation; Gomez was convicted in county court for violating Neb. Rev. Stat. § 42-924(4) and the conviction was affirmed by the district court on appeal.
Gomez challenged sufficiency of evidence that he was personally served with the order affirming the ex parte protection order, arguing the service return did not specifically state the protection order was served.

Issue	State's Argument	Gomez's Argument	Held
Whether service (or statutorily described notice) is an essential element of a § 42-924(4) violation	§ 42-924(4) requires service or the § 42-926(2) notice; where notice is not shown, personal service is required	Service must be proved and the statute’s service/return provisions control the element	Court: Service or the § 42-926(2) notice is an essential element; if notice not shown, personal service is required (affirming Graff reasoning)
Whether the State proved personal service when the return referenced only a cover sheet with attachments rather than naming the protection order	Cover sheet + signed service return + deputy testimony that he handed Gomez the attachments (including the affirmed order) are sufficient to prove personal service	Service return was deficient because it did not specifically state the protection order was served and § 42-926(1) requires the sheriff to "file its return thereon"	Court: Return need not be punctiliously specific; statutory return form compliance is not an independent element; cover sheet, return, and deputy testimony suffice to prove personal service beyond a reasonable doubt

State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019) (standard for sufficiency review)
State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019) (crimes are statutory; elements derived from statute)
State v. Graff, 282 Neb. 746, 810 N.W.2d 140 (2011) (personal service required for certain protection-order violations where statute governing service requires it)
State v. Duncan, 294 Neb. 162, 882 N.W.2d 650 (2016) (penal statutes strictly construed; courts will not supply omitted statutory language)