State v. Grant

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/25/2022 09:07 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. GRANT
Cite as 310 Neb. 700State of Nebraska, appellee, v.
Kenneth W. Grant, Jr., appellant.
___ N.W.2d ___
Filed January 14, 2022. No. S-20-915.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court sits as an intermediate
court of appeals.
2. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Evidence: Appeal and Error. In considering a claim of insufficient evi-
dence, an appellate court will not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence. Such matters
are for the finder of fact.
5. Convictions: Evidence: Appeal and Error. Absent prejudicial error, a
conviction will generally be affirmed so long as the evidence admitted
at trial, viewed and construed most favorably to the State, is sufficient
to support the elements of conviction beyond a reasonable doubt.
6. Constitutional Law: Judgments: Appeal and Error. Whether the
conduct at issue was constitutionally protected is a question of law, and
an appellate court will review the district court’s rulings on those issues
de novo.
7. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
court, an appellate court will not disturb a sentence imposed within the
statutory limits.
8. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. GRANT
Cite as 310 Neb. 700unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
9. Constitutional Law. The parameters of the constitutional right to free-
dom of speech are the same under both the 1st Amendment to the U.S.
Constitution, applicable to the states via the 14th Amendment, and the
Nebraska Constitution.
10. Constitutional Law: Criminal Law. The parameters of the constitu-
tional right to freedom of speech under the 1st Amendment to the U.S.
Constitution, applicable to the states via the 14th Amendment, and the
Nebraska Constitution both mean that government has no power to
restrict expression because of its message, its ideas, its subject matter,
or its content and limits the State’s ability to prosecute certain criminal
offenses when such prosecution entails content control involving pro-
tected speech.
11. Constitutional Law. The broad protections afforded by the federal and
state Constitutions are not absolute.
12. ____. The general rule against government control over the content of
speech does not apply to certain well-defined and narrowly limited cat-
egories of expression. These speech categories are unprotected.
13. ____. Unprotected categories of speech are thought to form no essential
part of any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.
14. Constitutional Law: Criminal Law: Libel and Slander: Obscenity.
Categories of content that can be proscribed include libel, obscenity,
incitements to imminent lawlessness, true threats, and fighting words.
15. Constitutional Law. The government may restrict protected speech
through reasonable restrictions on the time, place, and manner of
speech, and even a content-based restriction can be upheld if it satisfies
the requisite standard of scrutiny.
16. Judgments: Appeal and Error. Where the record adequately demon-
strates that the decision of a trial court is correct, although such correct-
ness is based on a ground or reason different from that assigned by the
trial court, an appellate court will affirm.
17. Constitutional Law. In order to bring a claim for violation of the fed-
eral or state constitutional guarantees of free speech, the alleged viola-
tion must involve state action. The free speech provisions of the federal
and state Constitutions were not intended to guard against private inter-
ference or restrain private conduct.
18. ____. A regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect on some
speakers or messages but not others.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. GRANT
Cite as 310 Neb. 70019. Convictions: Ordinances: Judicial Notice: Complaints: Appeal and
Error. Where an appellant assigns as error the insufficiency of the evi-
dence to sustain a conviction under a municipal ordinance, an appellate
court will not take judicial notice of a municipal ordinance not in the
record, but, instead, may apply the ordinance’s text as reproduced in the
State’s long-form complaint.
20. Ordinances: Complaints. Absent anything to the contrary, the language
of a city ordinance as reproduced in the State’s long-form complaint is
to be given its plain and ordinary meaning.
21. Constitutional Law. Where a law is content neutral on its face, the
court must then determine the forum in which the speech takes place,
as the government’s ability to regulate the time, place, and manner of
speech varies according to the type of forum.
22. ____. Speech may take place in a traditional public forum, in a desig-
nated public forum, in a nonpublic forum, or on private property.
23. ____. Traditional public forums are those places which are owned by
the government and historically associated with expression, such as
public streets, sidewalks, and parks, including those which run through
residential neighborhoods, whereas designated public forums are those
that have not been historically associated with expression but which
the government has opened for such use, such as civic auditoriums or
public theaters.
24. ____. Nonpublic forums include government-owned property that is not
a traditional or designated public forum, such as government offices and
military bases.
25. Property: Words and Phrases. Private property is property which is
protected from public appropriation, over which the owner has exclusive
and absolute rights.
26. Constitutional Law: Public Health and Welfare: Disturbing the
Peace. The police power of a state extends beyond health, morals, and
safety, and comprehends the duty, within constitutional limitations, to
protect the well-being and tranquility of a community, including the
power to prevent disturbing noises.
27. Constitutional Law. The right to be let alone is one of the rights most
valued by civilized society. The right to avoid unwelcome speech has
special force in the privacy of the home and its immediate surroundings.
28. ____. In either a traditional or designated public forum, the government
may impose reasonable restrictions on the time, place, or manner of
protected speech, provided the restrictions (1) are content neutral as to
both subject matter and viewpoint, (2) are narrowly tailored to serve a
significant governmental interest, and (3) leave open ample alternative
channels for communication of the information.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. GRANT
Cite as 310 Neb. 70029. Constitutional Law: Criminal Law: Ordinances: Public Health and
Welfare. The requirement of narrow tailoring under the time, place, and
manner test is satisfied so long as the ordinance promotes a substantial
government interest that would be achieved less effectively absent the
regulation, such as deterring conduct inimical to public health, decency,
and order, or the tranquility of a neighborhood.
30. Constitutional Law: Ordinances. An ordinance restricting the volume
of music has no effect on the quantity or content of that expression
beyond regulating the extent of its amplification.
31. Criminal Law: 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 ele-
ments of the crime beyond a reasonable doubt.
32. Constitutional Law: Assault: Intent: Proof. Threats in a menacing
manner, when reviewed separately from the crime of assault, render
unlawful a promise of punishment, reprisal, or distress, coupled with a
showing of intention to do harm.
33. Sentences. The first step in analyzing whether a sentence is excessive
is to examine the statutory limits on penalties for such offenses. If the
sentence imposed is within statutory limits, the second step is to review
for an abuse of discretion.
34. Sentences: Appeal and Error. In reviewing whether an abuse of discre-
tion occurred during sentencing, an appellate court determines whether
the sentencing court considered and applied the well-established fac-
tors and any applicable legal principles in determining the sentence to
be imposed.
35. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense, and (8) the amount of violence
involved in the commission of the crime.
36. ____. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
Appeal from the District Court for Lancaster County, Darla
S. Ideus, Judge, on appeal thereto from the County Court
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. GRANT
Cite as 310 Neb. 700for Lancaster County, Laurie J. Yardley, Judge. Judgment of
District Court affirmed.
Joe Nigro, Lancaster County Public Defender, and James
Sieben for appellant.
Yohance L. Christie, Lincoln City Attorney, and Marcee A.
Brownlee for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
The appellant, Kenneth W. Grant, Jr., accused of shouting
in a loud, menacing, and persistent manner from his apart-
ment’s balcony at persons across the street, was convicted of
disturbing the peace and of assault or menacing threats, both
in violation of city ordinances in Lincoln, Nebraska. He asks
us to overturn those convictions and their resulting 10-day
jail sentences.
We do not analyze whether Grant’s speech included fight-
ing words or true threats, because even if Grant’s speech
was protected, we conclude the State may regulate it through
reasonable restrictions on the time, place, and manner of
speech. Thus, we affirm Grant’s 10-day jail sentence for that
conviction.
We find that Grant’s conviction for assault or menacing
threats was supported by sufficient evidence. We also affirm
that conviction.
I. BACKGROUND
Grant was charged with violating two provisions under the
Lincoln Municipal Code, sections “9.12.010A” and “9.20.050.”
The complaint alleged that Grant had “[i]ntentionally or know-
ingly disturb[ed] the peace and quiet of . . . Gregory Lee
Patterson and Jennifer Sue Ponce” and that he had “[i]nten-
tionally or knowingly threaten[ed] [Ponce] in a menacing
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STATE v. GRANT
Cite as 310 Neb. 700manner, attempt[ed] to strike her, or place[d] . . . her in fear
or apprehension of imminent bodily harm . . . .” Grant pled not
guilty to both charges.
At a bench trial, the State called three witnesses, begin-
ning with one of the alleged victims, Jennifer Sue Ponce. She
averred that on the day in question, she had been working as a
professional painter. While painting a house in Lincoln with a
colleague, Ponce heard a man shouting from across the street.
She identified that man in court as Grant. She said that Grant
yelled “vulgar things” at them as he stood on an apartment
balcony about 50 yards away. Grant said, for example, that
they were “‘doing a shitty job[,] a half-ass job’” of painting,
that they were “‘never . . . there early enough,’” that they
“‘shouldn’t even [have] be[en] doing that kind of work,’” and
that they “‘[didn’t] even know what [they were] doing.’”
Grant continued to shout in this manner for some period
of time, between a “half an hour” and “an hour or so,” and
his vulgarity increased with time. Specifically, he threatened
to “‘put bullets in your boyfriends.’” And he also made lewd
comments about Ponce’s body, yelling, “‘Nice’ . . . ‘ass,’”
and “‘Your tits are hanging out.’” When asked whether she
had felt threatened by Grant’s comments, Ponce offered mixed
responses, answering “[y]es,” that she had felt threatened, but
also clarifying that she had not been concerned for her safety,
“just because he wasn’t coming across — he wasn’t off of his
balcony. But, if he would’ve came off the balcony, probably,
yes.” Ponce acknowledged that while Grant had threatened
others, he had not directly threatened to shoot her or her col-
league. Still, feeling “[v]iolated” and “disturbed,” and frus-
trated that her work was being interrupted, Ponce had called
the police.
Gregory Lee Patterson, another alleged victim, testified
next. A resident of the house neighboring the one Ponce had
been painting, he spent portions of the day in question smok-
ing cigarettes on his front porch. While there, Patterson heard
the vulgar things Grant had “loud[ly]” said to Ponce and her
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. GRANT
Cite as 310 Neb. 700colleague. Patterson also recalled Grant’s shouting of racial
epithets at him. Patterson recounted Grant’s shouts of “‘Fuck
all them [racial epithet]’” and “‘Kill them all’ and ‘send them
back to Africa.’” Grant had also shouted, “‘Yeah, I’d kill them
[racial epithet], too. I’d kill him [Patterson], too.’”
When asked whether Patterson viewed Grant’s words on the
day in question as threatening, Patterson testified that “I was
the only black person there, so [Grant’s statement about kill-
ing] had to be towards me.” However, Patterson acknowledged
that “this ain’t the first time [Grant’s] said something about
killing blacks and Mexicans”; “he was doing this all the time.”
Patterson also recounted that “this ain’t nothing new. He’d
always sit on the porch and holler racial slurs, all the time,
towards me, towards the neighbors, even towards people walk-
ing down the street.”
The State’s final witness was Breanna Callese, the officer
with the Lincoln Police Department who responded to Ponce’s
call. Callese said that during her investigation, Grant admit-
ted to calling Patterson a racial epithet and to telling Ponce
that “he was going to . . . ‘light them up.’” Grant maintained,
however, that such expression was protected by his “[F]irst
[A]mendment right.” Unpersuaded, Callese cited him with dis-
turbing the peace.
Callese recalled being summoned again to the same loca-
tion a short time later because Grant’s shouting had apparently
continued unabated. This time, Grant claimed that his yelling
had not been directed at Ponce and Patterson, but, rather, that it
had been directed into his phone at his sister. Callese refrained
from citing Grant with a second count of disturbing the peace.
Grant was officially charged on July 26, 2019, with one count
of disturbing the peace and an additional count of assault or
menacing threats.
Grant called no additional witnesses and offered no other
evidence of his own. At the close of the State’s evidence,
the county court for Lancaster County found Grant guilty of
both counts alleged in the complaint. The county court then
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. GRANT
Cite as 310 Neb. 700sentenced him to 10 days in jail for each conviction, the sen-
tences to run concurrently.
After sentencing, Grant perfected a timely appeal to the
district court for Lancaster County. Sitting as an intermediate
court of appellate review, that court affirmed. Grant again per-
fected a timely appeal, and we moved his appeal to our docket.
II. ASSIGNMENTS OF ERROR
Grant assigns that the district court erred in affirming his
convictions and sentences. Specifically, Grant contends that
(1) the speech for which he was convicted of disturbing the
peace was constitutionally protected, (2) there was insufficient
evidence adduced at trial to support his convictions, and (3) his
sentences were excessive.
III. STANDARD OF REVIEW
[1-3] In an appeal of a criminal case from the county court,
the district court sits as an intermediate court of appeals. 1
Both the district court and a higher appellate court generally
review appeals from the county court for error appearing on the
record. 2 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. 3
[4-6] In considering a claim of insufficient evidence, an
appellate court will not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence. 4 Such
matters are for the finder of fact. 5 Absent prejudicial error, a
conviction will generally be affirmed so long as the evidence
admitted at trial, viewed and construed most favorably to
the State, is sufficient to support the elements of conviction
1
See State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).
2
Id.3
See id.4
See State v. Estrada Comacho, 309 Neb. 494, 960 N.W.2d 739 (2021).
5
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Nebraska Supreme Court Advance Sheets
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STATE v. GRANT
Cite as 310 Neb. 700beyond a reasonable doubt. 6 Whether the conduct at issue was
constitutionally protected, however, is a question of law, and
an appellate court will therefore review the district court’s rul-
ings on those issues de novo. 7
[7,8] Absent an abuse of discretion by the trial court, an
appellate court will not disturb a sentence imposed within
the statutory limits. 8 A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and
denying a just result in matters submitted for disposition. 9
IV. ANALYSIS
1. Conviction for Disturbing the Peace
Grant assigns, first, that his conviction for disturbing the
peace was in error because the speech underlying his convic-
tion was protected by U.S. Const. amend. I and Neb. Const.
art. I, § 5. Grant argues that because his speech was protected,
it could not be criminally proscribed. Grant does not claim his
conviction for assault or menacing threats is unconstitutional;
hence, we need not consider it in any constitutional analysis.
[9,10] The 1st Amendment to the U.S. Constitution, appli-
cable to the states via the 14th Amendment, 10 provides in
relevant part that “Congress shall make no law . . . abridging
the freedom of speech . . . .” Similarly, under the Nebraska
Constitution, “[e]very person may freely speak . . . on all sub-
jects . . . .” 11 We have recognized that the “‘parameters of the
constitutional right to freedom of speech are the same under
6
See id.
7
See, Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014); State v.
Drahota, 280 Neb. 627, 788 N.W.2d 796 (2010).
8
See State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021).
9
Id.10
NIFLA v. Becerra, ___ U.S. ___, 138 S. Ct. 2361, 201 L. Ed. 2d 835(2018).
11
Neb. Const. art. I, § 5.
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Nebraska Supreme Court Advance Sheets
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STATE v. GRANT
Cite as 310 Neb. 700both the federal and the state Constitutions.’” 12 Both mean
that government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content. 13 And
so, in effect, both limit the State’s ability to prosecute certain
criminal offenses when such prosecution entails content control
involving protected speech. 14
(a) Proscribable Speech
[11-14] The broad protections afforded by the federal and
state Constitutions, however, are not absolute. 15 The general
rule against government control over the content of speech
does not apply to certain well-defined and narrowly lim-
ited categories of expression. 16 These speech categories are
unprotected. 17 They are thought to form “no essential part of
any exposition of ideas, and are of such slight social value
as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order
and morality.” 18 Categories of content that can be proscribed
include libel, obscenity, incitements to imminent lawless-
ness, true threats, and fighting words. 19 The State asserts
12
State ex rel. Bruning v. Gale, 284 Neb. 257, 272, 817 N.W.2d 768, 779
(2012) (quoting State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d
347 (2006)).
13
See, Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S. Ct.
1700, 152 L. Ed. 2d 771 (2002). Accord, Bolger v. Youngs Drug Products
Corp., 463 U.S. 60, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983); Police
Department of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed.
2d 212 (1972). Cf. State ex rel. Bruning v. Gale, supra note 12.
14
See, NIFLA v. Becerra, supra note 10; State v. Drahota, supra note 7.
15
See, Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535(2003); State v. Drahota, supra note 7.
16
See Virginia v. Black, supra note 15.
17
See State v. Drahota, supra note 7.
18
Id. at 633, 788 N.W.2d at 801 (quoting Chaplinsky v. New Hampshire, 315
U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942)) (internal quotation marks
omitted).
19
State v. Drahota, supra note 7.
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Nebraska Supreme Court Advance Sheets
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STATE v. GRANT
Cite as 310 Neb. 700that Grant’s conviction should be upheld because the speech
underlying his convictions were proscribable “threats and
fighting words.” 20 For our analysis we assume, without decid-
ing, that Grant’s speech was not proscribable under any of the
enumerated categories and is protected by the federal and state
Constitutions.
[15] However, it does not follow that speech which is not
proscribable by one of these enumerated categories cannot
be restricted. As will be discussed in further detail below, the
government may restrict protected speech through reasonable
restrictions on the time, place, and manner of speech, and even
a content-based restriction can be upheld if it satisfies the req-
uisite standard of scrutiny. 21
Neither the parties nor the county or district courts specifi-
cally addressed time, place, and manner restrictions or the lev-
els of scrutiny for constitutional challenges. Accordingly, this
court entered an order directing the parties to submit supple-
mental briefs, with any new content limited to the applicability
of time, place, and manner restrictions in this case.
[16] We have held that “where the record adequately demon-
strates that the decision of a trial court is correct, although such
correctness is based on a ground or reason different from that
assigned by the trial court, an appellate court will affirm.” 22
Thus, even where the county and district courts may have
decided this issue based on the content of Grant’s speech, we
are able to affirm his conviction if we find that his speech can
be restricted by the State for reasons other than content.
(b) Restrictions of Time, Place, and Manner
[17] As a preliminary matter, in order to bring a claim for
violation of the federal or state constitutional guarantees of
20
Brief for appellee at 7.
21
See Reed v. Town of Gilbert, 576 U.S. 155, 135 S. Ct. 2218, 192 L. Ed. 2d
236 (2015).
22
Jessen v. Malhotra, 266 Neb. 393, 396, 665 N.W.2d 586, 590 (2003)
(citing Egan v. Stoler, 265 Neb. 1, 653 N.W.2d 855 (2002)).
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STATE v. GRANT
Cite as 310 Neb. 700free speech, the alleged violation must involve state action. 23
The free speech provisions of the federal and state Constitutions
were not intended to guard against private interference or
restrain private conduct. 24 Because Grant’s convictions arise
under an ordinance contained in the Lincoln Municipal Code,
it is clear that his speech is being regulated by the government
and that there is state action.
[18] Our next step is to analyze whether the regulation
restricts speech based on its content. A regulation that serves
purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers
or messages but not others. 25 Conversely, government regula-
tion of speech is content based if a law applies to particular
speech because of the topic discussed or the idea or message
expressed. 26 For example, a law banning the use of sound
trucks for political speech—and only political speech—would
be a content-based regulation. 27
[19,20] Our analysis regarding the content of the ordinance
would generally begin with the language of the ordinance that
Grant was convicted of violating. 28 But where, as here, the
defendant has failed to include the ordinance at issue in the
record, we may not consider that ordinance’s text. 29 We may
instead apply the ordinance’s text as reproduced in the State’s
long-form complaint. 30 Absent anything to the contrary, we
give that language its plain and ordinary meaning. 31
23
See Dossett v. First State Bank, 261 Neb. 959, 627 N.W.2d 131 (2001).
24
See id.25
Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed.
2d 661 (1989).
26
Reed v. Town of Gilbert, supra note 21.
27
Id.28
See In re Interest of Elainna R., 298 Neb. 436, 904 N.W.2d 689 (2017).
29
See State v. Buescher, 240 Neb. 908, 485 N.W.2d 192 (1992).
30
See State v. Hill, 254 Neb. 460, 577 N.W.2d 259 (1998).
31
Cf. In re Interest of Elainna R., supra note 28.
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STATE v. GRANT
Cite as 310 Neb. 700According to the State’s complaint, “Count 1” defined
Grant’s offense of “disturbing the peace” as “Intentionally or
knowingly disturb the peace and quiet of any person, family,
or neighborhood.”
The prohibition against disturbing the peace, as described by
the State in its charging document, makes no reference to the
content of speech and does not target particular speech on its
face due to the content discussed or the viewpoint expressed.
Instead, the rule is content neutral.
We recognize that the State elicited and relied on evidence
of the content of Grant’s speech at trial. Such evidence was
unnecessary, however, to establish a violation under the lan-
guage of the disturbing the peace charge in the complaint (i.e.,
“[i]ntentionally or knowingly disturb the peace and quiet of
any person, family, or neighborhood . . .”). We also note that
Grant registered no contemporaneous objection to the admis-
sion of evidence regarding the content of his speech.
[21] Where a law is content neutral on its face, the court
must then determine the forum in which the speech takes place,
as the government’s ability to regulate the time, place, and
manner of speech varies according to the type of forum. 32
[22-25] Speech may take place in a traditional public forum,
in a designated public forum, in a nonpublic forum, or on
private property. 33 Traditional public forums are those places
which are owned by the government and historically “‘have
been devoted to assembly and debate,’” 34 “‘communicating
thoughts between citizens, and discussing public questions.’” 35
Public streets, sidewalks, and parks fall into this category,
including streets and sidewalks which run through residential
32
See Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 103 S.
Ct. 948, 74 L. Ed. 2d 794 (1983).
33
See Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 105 S.
Ct. 3439, 87 L. Ed. 2d 567 (1985).
34
See id., 473 U.S. at 802.
35
Perry Ed. Assn. v. Perry Local Educators’ Assn., supra note 32, 460 U.S.
at 45.
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STATE v. GRANT
Cite as 310 Neb. 700neighborhoods. 36 Designated public forums, on the other hand,
are those that have not been historically associated with expres-
sion but which the government has opened for such use, such
as civic auditoriums or public theaters. 37 Nonpublic forums
include government-owned property that is not a traditional or
designated public forum, such as government offices and mili-
tary bases. 38 Private property is property which is “protected
from public appropriation[,] over which the owner has exclu-
sive and absolute rights.” 39
[26,27] Grant contends that the government may not restrict
his speech because it occurred on his private property. However,
Grant’s speech became an issue not merely when he spoke
from his own balcony, but because his speech could be heard
on, and intruded into, the private property of others. The police
power of a state extends beyond health, morals, and safety,
and comprehends the duty, within constitutional limitations, to
protect the well-being and tranquility of a community, includ-
ing the power to prevent disturbing noises. 40 The U.S. Supreme
Court has repeatedly held that the “‘right to be let alone’” is
one of the rights “‘most valued by civilized [society]’” and
that the “right to avoid unwelcome speech has special force in
the privacy of the home . . . and its immediate surroundings.” 41
Grant’s speech occurred not only on his own property, but was
also broadcast at least “50 yards,” across public streets and
sidewalks, and onto the private property of others. Here, it is
most appropriate to analyze Grant’s speech as that occurring in
a public forum.
36
Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420(1988).
37
See Cornelius v. NAACP Legal Defense & Ed. Fund, supra note 33.
38
See Perry Ed. Assn. v. Perry Local Educators’ Assn., supra note 32.
39
Black’s Law Dictionary 1472 (11th ed. 2019).
40
See Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448, 93 L. Ed. 513 (1949).
41
Hill v. Colorado, 530 U.S. 703, 716, 717, 120 S. Ct. 2480, 147 L. Ed. 2d
597 (2000).
- 714 -
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310 Nebraska Reports
STATE v. GRANT
Cite as 310 Neb. 700[28] In either a traditional or designated public forum, the
government may impose reasonable restrictions on the time,
place, or manner of protected speech, provided the restrictions
(1) are content neutral as to both subject matter and viewpoint,
(2) are narrowly tailored to serve a significant governmental
interest, and (3) leave open ample alternative channels for
communication of the information. 42 As explained above, the
ordinance does not aim to restrict speech or other behavior
based on content or viewpoint, and can be justified absent any
reference to content of speech. Thus, the first element of this
time, place, and manner test is satisfied.
(i) Narrowly Tailored to Significant
Governmental Interest
[29] The second element of the time, place, and manner
test, the narrow tailoring requirement, is satisfied so long as
the ordinance promotes a substantial government interest that
would be achieved less effectively absent the regulation, such
as deterring conduct inimical to public health, decency, and
order, or the tranquility of the neighborhood. 43 Ponce testified
at trial that the homeowner whose residence she was paint-
ing had described Grant’s commentary as “not an uncommon
thing” and that Ponce herself was “‘fine’” with these com-
ments at first as she continued to work. Ponce only called the
police after Grant’s commentary continued for such a long
period of time that her work was disrupted.
Patterson also testified that Grant had been making simi-
lar comments “every day [Ponce] was there” painting the
house and that Grant’s comments “[weren’t anything] new.
He’d always sit on the porch and holler racial slurs, all the
time, towards [Patterson], towards the neighbors, [and] even
towards people walking down the street.” The ordinance, and
42
See, e.g., Ward v. Rock Against Racism, supra note 25; City of Lincoln v.
ABC Books, Inc., 238 Neb. 378, 470 N.W.2d 760 (1991).
43
See City of Lincoln v. ABC Books, Inc., supra note 42.
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STATE v. GRANT
Cite as 310 Neb. 700its restrictions on Grant’s speech toward Ponce and Patterson,
only came into play on this date because Grant’s commentary
had been very loud and because it had carried on for such a
long period of time that it disrupted others in the area. Based
on these facts, it is clear that the city’s interest in deterring not
only unlawful conduct, but conduct inimical to public decency
and order, would not be achieved as effectively without this
ordinance; and we have previously held that this is sufficient
to satisfy the second element of the time, place, and man-
ner test. 44
(ii) Ample Alternative Channels
of Communication
The third element of the time, place, and manner test
requires that the ordinance leave open ample alternative chan-
nels of communication for the speech that it restricts. We find
no evidence in the record indicating that Grant was restricted
from making this speech in all forms, but specifically that he
could not continue “yelling.” Ponce testified that “after [the
police] left, [Grant] continued to yell things.” Ponce was “not
sure exactly what [Grant] was yelling,” but she called the
police a second time because Grant “was on the phone, yelling
at somebody, and then he hung up and he was yelling.” This
yelling was continuing to disturb both Ponce and the home-
owner of the residence she was painting.
[30] Based on the testimony offered at trial, it appears that
Grant would have been free to communicate the same content
in a number of different forms as long as it was communicated
in a quieter manner. This limitation as to Grant’s volume level
is similar to the facts in Ward v. Rock Against Racism, 45 where
an ordinance restricting the volume of music was found to
have “no effect on the quantity or content of that expression
beyond regulating the extent of amplification.” If Grant had
44
See id.45
Ward v. Rock Against Racism, supra note 25, 491 U.S. at 802.
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STATE v. GRANT
Cite as 310 Neb. 700been communicating this same content without yelling loudly
down the street, for a lengthy period of time, we find no evi-
dence in the record that he would have been cited under this
ordinance. Thus, the ordinance itself leaves open ample alter-
native channels of communication and satisfies the third prong
of the time, place, and manner test.
We find all elements of the time, place, and manner test
are satisfied, such that this ordinance as applied to Grant did
not violate his right to free speech under the federal and state
Constitutions. Accordingly, we affirm his conviction for dis-
turbing the peace.
2. Conviction for Assault or
Menacing Threats
Having determined that Grant’s conviction for disturbing
the peace must be affirmed, we next consider his conviction
for assault or menacing threats. Grant does not challenge the
constitutionality of this conviction, but, rather, he assigns that
there was insufficient evidence to support this conviction.
We disagree.
[31] 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. 46
Our analysis would generally begin with the language of the
ordinance that Grant was convicted of violating. 47 But, again,
the defendant has failed to include the ordinance at issue in
the record, so we may not consider that ordinance’s text. 48 We
must instead apply the ordinance’s text as reproduced in the
46
See State v. Estrada Comacho, supra note 4.
47
See In re Interest of Elainna R., supra note 28.
48
See State v. Buescher, supra note 29.
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STATE v. GRANT
Cite as 310 Neb. 700State’s long-form complaint. 49 Absent anything to the contrary,
we give that language its plain and ordinary meaning. 50
According to the State’s complaint, “Count 2” defined
Grant’s offense of assault or menacing threats in this way:
Intentionally or knowingly threaten another in a men-
acing manner, attempt to strike her, or place him or her in
fear or apprehension of imminent bodily harm, or inten-
tionally, knowingly, or recklessly strike or cause bodily
injury to her, to wit: Jennifer Sue Ponce; in violation of
Lincoln Municipal Code Section 9.12.010.
(M $200-$500 fine, max 6 months jail - L.M.C. Section
9.20.100)[.]
This court has previously examined the meaning of the
words “assault,” “threaten,” and “menacing”:
A criminal “assault” includes the intentional doing
of an act which places another person in reasonable
apprehension of receiving bodily injury. To “threaten” is
commonly understood to mean promising punishment,
­reprisal, or distress. The meaning of “menacing” includes
the showing of an intention to do harm. 51
These three terms have typically been reviewed in conjunction
with one another in order to better define what constitutes a
threat for purposes of third degree assault. According to statute,
a person commits the offense of assault in the third degree if
he or she intentionally, knowingly, or recklessly causes bodily
injury to another person or threatens another in a menac-
ing manner. 52
Where § 28-310(1)(b) requires application of all three of the
above terms, we held that § 28-310(1)(b) “‘renders unlawful
a promise to do another person bodily harm which is made in
49
See State v. Hill, supra note 30.
50
Cf. In re Interest of Elainna R., supra note 28.
51
State v. Kunath, 248 Neb. 1010, 1014, 540 N.W.2d 587, 591 (1995).
Accord In re Interest of Siebert, 223 Neb. 454, 390 N.W.2d 522 (1986).
52
Neb. Rev. Stat. § 28-310(1)(b) (Reissue 2016).
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STATE v. GRANT
Cite as 310 Neb. 700such a manner as to intentionally cause a reasonable person
in the position of the one threatened to suffer apprehension of
being so harmed.’” 53 Thus, this statute is violated when a per-
son acts “‘in such a manner as to intentionally cause a reason-
able person in the position of the one threatened to feel appre-
hension of being [bodily] harmed.’” 54 A fear of bodily harm
or injury must be shown because all three terms, “assault,”
“threaten,” and “menacing,” are applicable.
However, the complaint in this case specified that Grant was
charged with assault or menacing threats. The charging lan-
guage does not mirror the language set forth by § 28-310(1)(b),
and thus, our analysis does not require application of all three
terms in conjunction with one another. In contrast to § 28-310,
where a defendant can commit assault by making menacing
threats, the language of this complaint indicates that the term
“assault” versus the term “menacing threats” can be analyzed
as separate from one another. The charging language also sup-
ports this view, where it lays out alternative elements of proof:
“[i]ntentionally or knowingly threaten another in a menacing
manner” versus intentionally or knowingly “place him or her
in fear or apprehension of imminent bodily harm.”
[32] Under this scheme, “[t]hreat[s] . . . in a menacing man-
ner” is separated from those elements that have traditionally
constituted the crime of assault. Thus, we are able to isolate the
terms “threaten” and “menacing.” These two terms, as isolated,
simply mean that the State must prove Grant has promised
punishment, reprisal, or distress and that he had an intention
to do harm. Unlike our analysis regarding § 28-310(1)(b), the
language of this complaint “‘renders unlawful a promise to
do another person bodily harm,’” 55 but does not require that
the promise to do harm be made in any particular manner and
53
State v. Kunath, supra note 51, 248 Neb. at 1014, 540 N.W.2d at 591(quoting In re Interest of Siebert, supra note 51).
54
See id.55
See id.- 719 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. GRANT
Cite as 310 Neb. 700does not require an analysis of whether a reasonable person
would feel threatened. That the speaker intended to do harm
means the speaker must have intended, at a minimum, to cause
distress to the recipient of the threatening words.
In reviewing the evidence admitted at trial, viewed and
construed most favorably to the State, we find that Grant did
threaten Ponce in a menacing manner. Grant told Ponce he
would “‘put bullets in your boyfriend[],’” a promise of punish-
ment, reprisal, or distress. The evidence adduced at trial also
indicates that Grant made these comments to Ponce in order to
cause her some form of mental distress: his commentary was
provocative and explicit and became increasingly violent and
specific as the day progressed. It is clear that Grant was trying
to disrupt Ponce in her work and that he was trying to agitate
her. And he succeeded, where Ponce testified that Grant’s
continued commentary did cause her anxiety. Grant offered no
alternative explanation.
Accordingly, the evidence admitted at trial, viewed and con-
strued most favorably to the State, is sufficient to support the
elements of assault or menacing threats beyond a reasonable
doubt, and thus, we affirm Grant’s conviction.
3. Excessive Sentences Argument
Having affirmed Grant’s convictions, we turn last to his
claim that his sentences were excessive.
[33] The first step in analyzing whether a sentence is exces-
sive is to examine the statutory limits on penalties for such
offenses. 56 But because Grant failed to include the ordinances
at issue in the appellate record, they may not be consulted on
appellate review and the information contained in the com-
plaint must suffice. 57 According to the complaint, the maxi-
mum penalties listed for disturbing the peace are a “$500 fine”
and “3 months jail.” The maximum penalties listed for assault
56
State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).
57
See State v. Hill, supra note 30.
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STATE v. GRANT
Cite as 310 Neb. 700or menacing threats are a “$200-$500 fine” and “6 months
jail.” Plainly, Grant’s sentence of 10 days in jail does not
exceed these limits. Thus, if the sentence imposed is within
statutory limits, the second step is to review for an abuse of
discretion. 58
[34-36] In reviewing whether an abuse of discretion occurred
during sentencing, an appellate court determines whether the
sentencing court considered and applied the well-established
factors and any applicable legal principles in determining
the sentence to be imposed. 59 When imposing a sentence, a
sentencing judge should consider the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense, and (8) the amount of violence involved
in the commission of the crime. 60 The sentencing court is not
limited to any mathematically applied set of factors, but the
appropriateness of the sentence is necessarily a subjective
judgment that includes the sentencing judge’s observations of
the defendant’s demeanor and attitude and all the facts and cir-
cumstances surrounding the defendant’s life. 61
Grant contends that his sentences were an abuse of discretion
because in imposing the sentences, the county court “ignored”
several important factors, including Grant’s request for only a
fine or probation, his weekly attendance at church groups, his
volunteerism at a homeless shelter, and his more than 20 years
“without being convicted of a similar offense.” 62
At the sentencing hearing, Grant’s attorney offered much
of this same evidence into the record. In determining Grant’s
sentence, the county court considered that evidence, the
58
See State v. Starks, supra note 56.
59
See State v. Greer, supra note 8.
60
See id.61
Id.62
Brief for appellant at 25.
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STATE v. GRANT
Cite as 310 Neb. 700State’s evidence, and Grant’s presentence investigation report.
According to Grant’s presentence investigation report, Grant
was 50 years old at the time of sentencing and had a criminal
history dating back to his youth, including convictions in 1996
for third degree assault and in 1987 for attempted burglary.
Grant also had recent minor traffic offenses. He had dropped
out of high school during the 11th grade, and then for about 2
years, he had been part of a criminal gang. Throughout his life,
Grant had struggled to maintain steady employment and was
currently unemployed. He reported maintaining few healthy
relationships throughout his adulthood.
After reviewing this evidence, the county court ordered 10
days in jail for each conviction, to run concurrently, noting that
“any less sentence this Court would impose would depreciate
the seriousness of the offense and promote disrespect for the
law.” Despite Grant’s emphasis on his positive achievements,
the record provides a sound basis for the sentences imposed.
Accordingly, Grant’s convictions and resulting sentences were
not in error.
V. CONCLUSION
For the reasons explained above, we affirm Grant’s con-
victions for disturbing the peace and for assault or menacing
threats and find that the resulting sentences were not an abuse
of discretion.
Affirmed.