State v. Broadstone, No. 88-915

CourtSupreme Court of Nebraska
Writing for the CourtHASTINGS; BOSLAUGH
Citation233 Neb. 595,447 N.W.2d 30
Docket NumberNo. 88-915
Decision Date20 October 1989
PartiesSTATE of Nebraska, Appellee, v. David L. BROADSTONE, Appellant.

Page 30

447 N.W.2d 30
233 Neb. 595
STATE of Nebraska, Appellee,
v.
David L. BROADSTONE, Appellant.
No. 88-915.
Supreme Court of Nebraska.
Oct. 20, 1989.

Page 31

Syllabus by the Court

1. Convictions: Appeal and Error. In determining whether the evidence is sufficient to sustain a conviction in a jury trial, the Supreme Court does not resolve conflicts in the evidence, pass on the witnesses' credibility, determine the plausibility of explanations, or reweigh the evidence. These matters are for the finder of fact, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

2. Disturbing the Peace: Words and Phrases. A breach of the peace is a violation of public order. It is the same as disturbing the peace. The definition of breach of the peace is broad enough to include the offense of disturbing the peace; it [233 Neb. 596] signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community.

3. Disturbing the Peace: Words and Phrases. The term "breach of the peace" is generic and includes all violations of public peace, order, or decorum, or acts tending to the disturbance thereof.

4. Constitutional Law: Disturbing the Peace: Words and Phrases. Language that tends to incite assault or other immediate breach of the peace constitutes "fighting" words, which are not constitutionally protected forms of speech.

5. Constitutional Law: Disturbing the Peace: Words and Phrases. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Such utterances are 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.

6. Constitutional Law. Resort to epithets or personal abuse is not in any proper sense communication of information or

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opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.

7. Disturbing the Peace: Words and Phrases. The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others.

8. Disturbing the Peace. Provocative language consisting of profane, indecent, or abusive remarks directed to the person of the hearer may amount to a breach of the peace.

9. Appeal and Error. The Supreme Court does not consider assignments of error not discussed in the brief.

10. Appeal Bonds. Generally, an objection to an appeal bond cannot be made by appeal.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

[233 Neb. 597] BOSLAUGH, Justice.

After trial to a jury the defendant, David L. Broadstone, was convicted of disturbing the peace and was sentenced to probation for 18 months. Upon appeal to the district court, the judgment was affirmed. The defendant has now appealed to this court.

The defendant's assignments of error allege that the evidence was not sufficient to support the verdict and that the trial court erred in allowing the complaining witness to testify about the defendant's disturbing the peace and quiet of someone other than the person alleged in the complaint, in overruling the defendant's motion in limine, and in prohibiting the defendant from being around children under 14 years of age or going within a block of places normally frequented by children.

Neb.Rev.Stat. § 28-1322(1) (Reissue 1985) describes the offense of disturbing the peace as intentionally disturbing the peace and quiet of any person, family, or neighborhood. The complaint in this case alleged that the defendant had intentionally disturbed the peace and quiet of a person, family, or neighborhood, "to-wit: Jerry L. Gulizia...."

The record shows that on March 31, 1988, Jerry Gulizia and Randall Keefe were waiting in Gulizia's front yard for their children to get out of Merle Beattie elementary school in Lincoln, Nebraska. Gulizia's daughter attended school at Merle Beattie, which was located just across the street from his house. While Gulizia and Keefe were waiting for their children, their attention was drawn to the defendant and a child, who were across the street. The defendant was using foul language and had a stick in his hand which he was hitting against a telephone pole. Children were coming out of the school at the time, and Gulizia saw 15 or 20 children walk by during that time. Gulizia testified that the defendant was using foul language when the children were near him.

Gulizia testified he heard the defendant say words like "motherfucker," and the child with the defendant would then repeat what the defendant had said. When the language continued, and their children started to cross the street, Gulizia and Keefe decided to cross the street and talk to the defendant because some of the children appeared to be frightened. Gulizia [233 Neb. 598] said that he was not shocked by what he heard, but he was upset that the children were exposed to it.

After Gulizia and Keefe had crossed the street, Gulizia asked the defendant if he was waiting for some children. The defendant replied it was none of his "fucking business." Gulizia then asked the defendant if he would leave. The defendant became violent and began shaking the stick, striking Gulizia on the arm and yelling obscenities such as "cocksucker" and "motherfucker." Gulizia then pushed the defendant against the fence and tried to settle him down.

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19 practice notes
  • State v. Bradley, No. 89-360
    • United States
    • Supreme Court of Nebraska
    • October 19, 1990
    ...the six unargued assignments of error last listed above. State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907 (1989); State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 None of the 11 summarized assignments of error properly before us having merit, we affirm. II. FACTS The victim, Kirk Glasgow, was ......
  • State v. Kipf, No. 88-974
    • United States
    • Supreme Court of Nebraska
    • January 19, 1990
    ...protected speech. See State v. Copple, supra. Not all speech is protected by the first [234 Neb. 239] amendment. State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (1989); State v. Monastero, supra; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Material which ......
  • People ex rel. R.C., Court of Appeals No. 14CA2210
    • United States
    • Colorado Court of Appeals of Colorado
    • November 17, 2016
    ...where one of the words spoken was "cocksucker." See City of Little Falls v. Witucki , 295 N.W.2d 243 (Minn. 1980) ; State v. Broadstone , 233 Neb. 595, 447 N.W.2d 30 (1989) ; 411 P.3d 1112 City of Shaker Heights v. Marcus , No. 61801, 1993 WL 27676 (Ohio Ct. App. 1993). But in each of those......
  • State v. Robinson, No. 82-028
    • United States
    • Supreme Court of Nebraska
    • November 17, 1989
    ...must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (1989); State v. Swigart, 233 Neb. 517, 446 N.W.2d 216 (1989); State v. Wokoma, 233 Neb. 351, 445 N.W.2d 608 Section 28-324 provide......
  • Request a trial to view additional results
19 cases
  • State v. Bradley, No. 89-360
    • United States
    • Supreme Court of Nebraska
    • October 19, 1990
    ...the six unargued assignments of error last listed above. State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907 (1989); State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 None of the 11 summarized assignments of error properly before us having merit, we affirm. II. FACTS The victim, Kirk Glasgow, was ......
  • State v. Kipf, No. 88-974
    • United States
    • Supreme Court of Nebraska
    • January 19, 1990
    ...protected speech. See State v. Copple, supra. Not all speech is protected by the first [234 Neb. 239] amendment. State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (1989); State v. Monastero, supra; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Material which ......
  • People ex rel. R.C., Court of Appeals No. 14CA2210
    • United States
    • Colorado Court of Appeals of Colorado
    • November 17, 2016
    ...where one of the words spoken was "cocksucker." See City of Little Falls v. Witucki , 295 N.W.2d 243 (Minn. 1980) ; State v. Broadstone , 233 Neb. 595, 447 N.W.2d 30 (1989) ; 411 P.3d 1112 City of Shaker Heights v. Marcus , No. 61801, 1993 WL 27676 (Ohio Ct. App. 1993). But in each of those......
  • State v. Robinson, No. 82-028
    • United States
    • Supreme Court of Nebraska
    • November 17, 1989
    ...must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (1989); State v. Swigart, 233 Neb. 517, 446 N.W.2d 216 (1989); State v. Wokoma, 233 Neb. 351, 445 N.W.2d 608 Section 28-324 provide......
  • Request a trial to view additional results

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