In re Interest of Elainna R. ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/23/2018 01:13 AM CST
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE INTEREST OF ELAINNA R.
Cite as 298 Neb. 436
In re I nterest of
Elainna R., a child
under18 years of age.
State of Nebraska, appellee,
v. Elainna R., appellant.
___ N.W.2d ___
Filed December 15, 2017. No. S-17-237.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings.
2. Ordinances: Appeal and Error. Interpretation of a municipal ordinance
is a question of law, on which an appellate court reaches an independent
conclusion irrespective of the determination made by the court below.
3. Ordinances. Absent anything to the contrary, the language of a city
ordinance is to be given its plain and ordinary meaning.
4. Statutes. Statutes relating to the same subject, although enacted at dif-
ferent times, are in pari materia and should be construed together.
5. Schools and School Districts: Disturbing the Peace. A school security
officer or campus supervisor may be a victim of disturbing the peace.
6. Evidence: Proof. A finder of fact may draw reasonable inferences from
the facts and circumstances proved.
Appeal from the Separate Juvenile Court of Lancaster
County: Linda S. Porter, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
Brittani E. Lewit for appellant.
Connor L. Reuter for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ., and Moore, Chief Judge.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE INTEREST OF ELAINNA R.
Cite as 298 Neb. 436
Funke, J.
The appellant, Elainna R., was adjudicated by the separate
juvenile court of Lancaster County, under Neb. Rev. Stat.
§ 43-247(1) (Reissue 2016), for violating a Lincoln city ordi-
nance prohibiting disturbing the peace. The juvenile court
found proof beyond a reasonable doubt that Elainna knowingly
or intentionally disturbed the peace of Sief Mahagoub, a high
school security officer, by engaging in fighting. For the rea-
sons discussed herein, we affirm.
BACKGROUND
On November 17, 2016, Elainna was attending Lincoln
Southeast High School. On that day, she was involved in a
fight with another student, A.L., in the hallway of the school.
The named victim in this case, Mahagoub, is employed at the
school as a campus supervisor and security officer and had
been so employed for 4 years. His duties include maintaining
safety and security on the school campus.
About 1:17 p.m., Mahagoub observed the two students
yelling at each other. Elainna then angrily ran toward A.L.
while Mahagoub attempted to stop the fight before it became
physical.
Mahagoub yelled, “Stop, stop, stop,” in a loud, commanding
voice and positioned himself between the students. Elainna,
however, struck A.L.’s head and grabbed her hair. Mahagoub
tried to separate the two, but Elainna maintained her grip on
A.L.’s hair. Mahagoub continued to command Elainna to stop,
and the three scuffled to the ground.
Mahagoub again yelled, “Stop” and “Let go.” With the help
of another adult, Mahagoub separated the students. The inci-
dent lasted between 2 and 3 minutes.
Mahagoub testified that altercations like this are very com-
mon with students of that age, but said that this fight was
disruptive to the workday. Mahagoub described the altercation
as “very intense” and “very difficult” to stop. He described
Elainna as the aggressor and observed her strike A.L. multiple
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE INTEREST OF ELAINNA R.
Cite as 298 Neb. 436
times. After the altercation, Mahagoub observed hair on the
floor that was consistent with A.L.’s hair.
Mahagoub stated he acted in accordance with his training,
which instructed him to do as much as possible to prevent
harm. On cross-examination, Mahagoub testified that he has
trained as a military police officer and served three tours in
Iraq. He further stated that the school provided him 2 full days
of training for his role as a security officer and that he received
specific training on how to deal with upset and aggressive
students. He stated his job duties include breaking up fights
between students.
According to Mahagoub, he has dealt with many fights dur-
ing his time as campus supervisor, including students who were
verbally and physically aggressive toward him. He also testi-
fied that he works with police officers in dealing with difficult
students and occasionally assists law enforcement officers with
investigations of criminal activity within the school.
An associate principal at Lincoln Southeast High School
testified he witnessed the later portion of the fight after it had
progressed to the floor. He observed Elainna holding the other
student’s hair and Mahagoub’s attempts to separate them. He
testified that the altercation was disruptive to the schoolday.
The juvenile petition alleged that “on or about the 17th day
of November 2016, [Elainna] did knowingly or intentionally
disturb the peace and quiet of . . . Mahagoub, by fighting, in
violation of L.M.C. § 9.20.050.” Elainna entered a denial, and
the matter proceeded to adjudication.
At the conclusion of the adjudication, the court found the
State had proved the allegations in the petition beyond a rea-
sonable doubt. The juvenile court continued final disposition
of the case pending the completion of a predisposition report.
Elainna perfected an appeal to this court.
ASSIGNMENTS OF ERROR
Elainna assigns, restated, the following errors: (1) The juve-
nile court erred in determining that Mahagoub’s peace was
disturbed as a school security officer or campus supervisor,
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE INTEREST OF ELAINNA R.
Cite as 298 Neb. 436
and (2) the evidence was insufficient to sustain an adjudication
of jurisdiction under § 43-247(1).
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings.1
[2] Interpretation of a municipal ordinance is a question of
law, on which we reach an independent conclusion irrespective
of the determination made by the court below.2
ANALYSIS
We first consider whether, as a matter of law, an individual
who engages in fighting can disturb the peace of a school
security officer or campus supervisor. If we determine a person
can disturb the peace of such a school official by fighting, we
must consider whether the evidence in the record before the
juvenile court supports an adjudication under § 43-247(1).
School Security Officer or
Campus Supervisor M ay Be
Victim of Disturbing Peace
The relevant portion of Lincoln’s disturbing the peace ordi-
nance, Lincoln Mun. Code § 9.20.050 (2013), is as follows:
(a) It shall be unlawful for any person to intentionally
or knowingly disturb the peace and quiet of any person,
family, or neighborhood, or any public assembly, or
assembly of persons for religious worship. The offense
of disturbing the peace shall include, but shall not neces-
sarily be limited to, the following:
(1) Engaging in fighting.
Under Neb. Rev. Stat. § 28-1322 (Reissue 2016), a person
who intentionally disturbs the peace and quiet of any person,
1
In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).
2
Landrum v. City of Omaha Planning Bd., 297 Neb. 165, 899 N.W.2d 598
(2017).
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE INTEREST OF ELAINNA R.
Cite as 298 Neb. 436
family, or neighborhood commits the offense of disturbing the
peace. Disturbing the peace, like the common-law offense of
breach of the peace, is a violation of public order.3 The offense
generally includes violent acts and acts and words likely to
produce violence in others.4
Elainna argues that Mahagoub is not a proper victim under
Lincoln’s disturbing the peace ordinance and that she could
not have disturbed his peace. Relying on decisions from other
jurisdictions, she contends school safety officers, such as
Mahagoub, should be treated the same as police officers,
who she asserts have no expectation of peace and tranquility
because of their training and duties.5
In support of her argument, Elainna cites to several cases
which stand for the proposition that the direction of “fighting
words” toward a police officer does not amount to a disturb­
ance of the peace.6 Elainna contends police officers frequently
encounter offensive language and have been trained to dif-
fuse such situations without physical retaliation, and therefore
are not likely to act violently in response to offensive words
or gestures.
The State argues Elainna’s position is contrary to settled
Nebraska law. To support its argument, the State relies on sev-
eral Nebraska cases.7
3
State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (1989) (citing State v.
Coomes, 170 Neb. 298, 102 N.W.2d 454 (1960)).
4
Broadstone, supra note 3.
5
See, In re M.M., 54 Cal. 4th 530, 278 P.3d 1221, 142 Cal. Rptr. 869
(2012); People v. Bowers, 77 Misc. 2d 697, 356 N.Y.S.2d 432 (1974).
6
H.N.P. v. State, 854 So. 2d 630 (Ala. Crim. App. 2003); People v. Slaton,
24 Ill. App. 3d 1062, 322 N.E.2d 553 (1974). See, also, Chaplinsky v. New
Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); State v.
Drahota, 280 Neb. 627, 788 N.W.2d 796 (2010).
7
State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987); State v. Groves,
219 Neb. 382, 363 N.W.2d 507 (1985); State v. Boss, 195 Neb. 467, 238
N.W.2d 639 (1976).
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE INTEREST OF ELAINNA R.
Cite as 298 Neb. 436
In State v. Boss,8 we affirmed a conviction for abusing or
resisting an officer in the execution of his office. In Boss, a
police officer pulled over a speeding motorist and obtained
his license and registration. During this process, the motor-
ist called the officer a “‘dirty son-of-a-bitch.’”9 We found
the words used by the motorist were “fighting words.”10 We
specifically rejected authorities which held that such language
cannot constitute “fighting words” when directed to a police
officer, who is trained to accept such abuse without vio-
lent reaction.11
Similarly, in State v. Groves,12 we affirmed a conviction
for disorderly conduct under a city of Omaha ordinance, and
again specifically rejected the argument that a police officer
is less susceptible to such abuse than other members of the
general public.
In State v. Moore,13 we affirmed a conviction for disturb-
ing the peace under a Lincoln ordinance. In Moore, a Lincoln
police officer responded to a complaint of a disturbance at a
house. The officer encountered a loud house party and shined
his cruiser’s spotlight on the front of the house, where indi-
viduals were standing in the dark. The defendant ran up to the
cruiser and yelled, “‘What the fuck are you doing here? You’ve
got no business here. Get the fuck out of here.’”14 The officer
testified that the defendant
“continued to yell at me and I finished getting out of my
cruiser and he was right up in my face. It was difficult
to get out of my car, in fact. And I explained or tried to
8
Boss, supra note 7.
9
Id. at 469, 238 N.W.2d at 642.
10
Id. at 471, 238 N.W.2d at 643.
11
Id.
12
Groves, supra note 7.
13
Moore, supra note 7.
14
Id. at 348, 411 N.W.2d at 347.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE INTEREST OF ELAINNA R.
Cite as 298 Neb. 436
explain to the defendant that I was there on a disturbance
call which seemed to even make him madder. . . .”15
We affirmed the defendant’s conviction in Moore based on
the totality of his conduct while in the officer’s presence.16
Accordingly, it is clear that in Nebraska, a police officer may
be the victim of disturbing the peace.
[3,4] Absent anything to the contrary, this court will give
the language of a city ordinance its plain and ordinary mean-
ing.17 Statutes relating to the same subject, although enacted
at different times, are in pari materia and should be con-
strued together.18
The applicable Lincoln ordinance states: “It shall be unlaw-
ful for any person to intentionally or knowingly disturb the
peace and quiet of any person . . . .”19 The Lincoln ordinance
is broadly written and does not differentiate between public
officials and the general public.
In State v. McNair,20 for the purpose of analyzing a city of
Omaha ordinance in a disturbance of lawful assembly case,
we defined “disturb” to mean “‘[t]o throw into disorder or
confusion; to interrupt the settled state of.’” Section 9.20.050
of the Lincoln Municipal Code covers the same subject mat-
ter as the ordinance in McNair. As a result, the definition of
“disturb” from McNair equally applies to Lincoln Mun. Code
§ 9.20.050.
[5] Assuming, without deciding, that Mahagoub’s role as
a school security officer and campus supervisor is equivalent
to a police officer for purposes of Lincoln’s disturbing the
15
Id.
16
Moore, supra note 7.
17
Brunken v. Board of Trustees, 261 Neb. 626, 624 N.W.2d 629 (2001).
18
D.I. v. Gibson, 295 Neb. 903, 890 N.W.2d 506 (2017); Northwest High
School Dist. No. 82 v. Hessel, 210 Neb. 219, 313 N.W.2d 656 (1981).
19
Lincoln Mun. Code § 9.20.050(a) (emphasis supplied).
20
State v. McNair, 178 Neb. 763, 766, 135 N.W.2d 463, 465 (1965).
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE INTEREST OF ELAINNA R.
Cite as 298 Neb. 436
peace ordinance, we hold that a school security officer or cam-
pus supervisor may be a victim of disturbing the peace.
Evidence Supports A djudication
Under § 43-247(1)
When an adjudication is based upon § 43-247(1), the allega-
tions must be proved beyond a reasonable doubt.21
Elainna argues there is no evidence that she used “fight-
ing words” against Mahagoub. Upon our de novo review,
we agree. But it does not follow that Elainna did not disturb
Mahagoub’s peace. The State argues Elainna’s conduct went
beyond words and included engaging in an actual fight which
necessitated Mahagoub’s physical involvement.
Indeed, the degree to which Elainna disturbed Mahagoub’s
peace can be measured by her actions following his command
to stop. Elainna passed through Mahagoub’s outstretched arm
to hit A.L. in the head and grab her hair. As Mahagoub con-
tinued to attempt to stop Elainna, Elainna further struck A.L.
Elainna’s grip on A.L.’s hair was so forceful it brought both
students and Mahagoub to the ground.
As the juvenile court said in its factual findings,
A campus supervisor, I think, does have some — part
of their job is to keep the peace and regulate the safety of
students, but a situation where a fight occurs, and there
was evidence that Elainna was certainly an aggressor in
that fight, that causes a school security officer to end up
between youth and end up on the floor trying to prevent
— trying to get one youth to release the hair of another
youth and interrupt the fight, I think I can infer some dis-
turbance of his peace.
[6] A finder of fact may draw reasonable inferences from
the facts and circumstances proved.22 Accordingly, we agree
21
In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007); Neb.
Rev. Stat. § 43-279(2) (Reissue 2016).
22
Jindra v. Clayton, 247 Neb. 597, 529 N.W.2d 523 (1995). See, also, State
v. Babbitt, 277 Neb. 327, 762 N.W.2d 58 (2009).
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE INTEREST OF ELAINNA R.
Cite as 298 Neb. 436
with the reasoning of the juvenile court. Mahagoub described
his efforts to prevent and stop the fight and how difficult it
was during the 2- to 3-minute incident. This evidence estab-
lishes that Elainna’s actions threw Mahagoub’s peace and
quiet into disorder, confusion, interruption, or an unsettled
state. We find the State has proved beyond a reasonable doubt
that Elainna disturbed the peace of Mahagoub by engaging
in fighting.
CONCLUSION
We conclude Mahagoub, a school security officer and cam-
pus supervisor, may be an appropriate victim of disturbing the
peace. Upon our de novo review, we independently find the
evidence adduced sufficiently supports the juvenile court’s
adjudication under § 43-247(1).
A ffirmed.
Wright, J., not participating.