State v. Abbink, No. S-99-186
| Decision Date | 11 August 2000 |
| Docket Number | No. S-99-187., No. S-99-186 |
| Citation | 260 Neb. 211,616 N.W.2d 8 |
| Parties | STATE of Nebraska, appellee, v. Melissa ABBINK, appellant. State of Nebraska, appellee, v. Sharon McKee, appellant. |
| Court | Nebraska Supreme Court |
V. Gene Summerlin, of Ogborn, Summerlin & Ogborn, P.C., and Krista L. Kester, of Woods & Aitken, L.L.P., Lincoln, for appellants.
Dana W. Roper, Lincoln City Attorney, and Connor L. Reuter, Lincoln, for appellee.
On February 6, 1998, at approximately 7:05 a.m., Melissa Abbink and Sharon McKee approached the Lincoln, Nebraska, residence of physician Winston Crabb from the north, walking in a southerly direction on the sidewalk adjacent to 24th Street in Lincoln. As Abbink and McKee approached the Crabb residence, they began to yell at Crabb's son, who also resides in the Crabb home, that he should be afraid for his soul and that he should stop killing babies. When Abbink and McKee realized that they were not calling out to Crabb, but to someone else, they acknowledged their mistake; at that time, they were approximately 50 to 55 feet from the front step of the Crabb residence.
Crabb's son, who was outside on his front step as Abbink and McKee approached, went inside the house and called the Lincoln Police Department. Crabb was upstairs in his house when Abbink and McKee approached. When Crabb first noticed Abbink and McKee, they were standing on the sidewalk, one on either side of the end of his driveway, approximately 1 to 1½ feet from his property line. In an attempt to avoid the disruption caused by Abbink and McKee, Crabb left his house, got into his car, and drove away. Realizing that Abbink and McKee had decided to follow him, Crabb returned to his house. Abbink and McKee followed Crabb back to his residence and parked their car on the street adjacent to Crabb's property. After getting out of their car, Abbink and McKee once again flanked Crabb's driveway and continued to shout at Crabb.
After Crabb returned to his house, he telephoned the Lincoln Police Department. While Crabb and his son were waiting for the police to respond to their calls, Abbink and McKee were standing on the sidewalk between the Crabb property line and the street adjacent thereto. Abbink and McKee again stood approximately 1 to 1½ feet from the Crabb property line, where they remained until the police arrived on the scene.
The police arrived at approximately 7:30 a.m. and observed Abbink and McKee still standing on the sidewalk flanking Crabb's driveway. After the police arrived, Crabb came out to the sidewalk near the area where Abbink and McKee were standing as Abbink and McKee continued to shout at him. The police separated the parties, after which Abbink and McKee were issued citations for disturbing the peace in violation of Lincoln Mun.Code § 9.20.050 (1992); the complaints against Abbink and McKee were subsequently amended to include charges of focused residential picketing in violation of Lincoln Mun.Code § 9.40.090 (1997). Specifically, count II of the amended complaints alleged that Abbink and McKee "intentionally or knowingly engage[d] in focused picketing in that portion of a street which abuts on the property upon which the targeted dwelling is located, or which abuts on property within fifty feet of the property upon which the targeted dwelling is located, in violation of L.M.C. section 9.40.090."
After arraignment, Abbink and McKee entered pleas of not guilty, and the cases were consolidated for trial. Following a joint bench trial, both Abbink and McKee were acquitted on the respective counts of disturbing the peace, but were convicted of focused residential picketing, and each of them was sentenced to a jail term of 60 days. Abbink and McKee appealed to the district court for Lancaster County, which affirmed both convictions and both sentences. From that order, Abbink and McKee timely appealed to the Nebraska Court of Appeals, and we moved these cases to our docket pursuant to our authority to regulate the caseloads of the appellate courts of this state. Neb.Rev. Stat. § 24-1106(3) (Reissue 1995). Abbink's and McKee's appeals have been consolidated for oral argument and decision in this court.
Abbink and McKee assert, summarized and restated, that (1) there was insufficient evidence to support their convictions of focused picketing in violation of § 9.40.090 and (2) the sentences imposed by the trial judge were excessive.
A trial court's findings in a criminal case have the effect of a jury verdict, and a conviction in a bench trial will be sustained if the properly admitted trial evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000).
Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of discretion. See State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000).
Abbink and McKee first contend that there was insufficient evidence to support their convictions for focused picketing under § 9.40.090. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999). Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. Id. Thus, we must determine whether any rational trier of fact could have found that the essential elements of focused picketing had been proved beyond a reasonable doubt.
Our analysis begins with the language of the ordinance under which Abbink and McKee were charged. The focused picketing ordinance provides in pertinent part:
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