State v. Cichowski

• Docket Number: A-23-256
• Decision Date: 26 December 2023
• Parties: State of Nebraska, appellee, v. Jeremy R. Cichowski, appellant
• Court: Nebraska Court of Appeals

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State of Nebraska, appellee,
v.
Jeremy R. Cichowski, appellant

No. A-23-256

Court of Appeals of Nebraska

December 26, 2023

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: J RUSSELL DERR, Judge, on appeal thereto from the County Court for Douglas County: STEPHANIE R. HANSEN, Judge. Judgment of District Court affirmed.

Sarah M. Mooney, of Mooney Law Office, for appellant.

Kevin J. Slimp, Omaha City Prosecutor, for appellee.

RIEDMANN, BISHOP, and WELCH, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

RIEDMANN, Judge.

INTRODUCTION

Following a bench trial, Jeremy R. Cichowski was found guilty of disorderly conduct. The county court for Douglas County sentenced him to 60 days' imprisonment. On appeal, the district court affirmed the county court's conviction and sentence. Cichowski now appeals his conviction and sentence to this court. Following our review of the record, we affirm the county court's conviction and sentence.

BACKGROUND

Erik Hilton and Jeremy Carnes are both employed by a lawn care and snow removal company. On April 18, 2022, Hilton and Carnes arrived at a client's property, where they work weekly, for "spring cleanup." Spring cleanup meant Hilton and Carnes would blow out the bushes

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surrounding the property, clean up sticks and leaves, clean off the sidewalks, and mow. Hilton described the property as an "apartment-type deal" that is "kind of like a duplex." The property shares a sidewalk with another building that Hilton believed to be apartments or another duplex. He estimated they usually spend 25 minutes at this location if they "aren't doing cleanup."

Hilton uses a leaf blower that he wears like a backpack. When he operates the leaf blower, he usually wears headphones to "drown out the blower," so he has difficulty hearing his surroundings. While Hilton used the leaf blower on April 8, 2022, Cichowski interrupted him to ask him how much longer he would be using the leaf blower. After Cichowski interrupted Hilton's work, an altercation ensued between Hilton, Carnes, and Cichowski, and the police were called. After the police interviewed Hilton, Carnes, and Cichowski, officers cited Cichowski for two counts of assault. Cichowski was later charged with one count of disorderly conduct.

County Court Trial.

At the beginning of the trial, Cichowski moved to sequester the witnesses. The county court granted the motion and ordered all witnesses sequestered. Specifically, it admonished the witnesses that they were "not allowed to discuss your testimony with anyone until the trial is over." Both Hilton and Carnes testified at trial to their own recollections of the incident. Hilton recalled arriving at the worksite at 2:45 p.m. Around 3:30 p.m. or 4 p.m., when Hilton was wearing a backpack leaf blower and listening to music, Cichowski approached him to get his attention. When Hilton turned around, he turned his leaf blower off. Cichowski was screaming and yelling at him. Cichowski complained that Hilton was making too much noise and was disturbing his girlfriend, who was inside working. Hilton testified Cichowski then pushed him down into the bushes, spit on him multiple times, and berated him with insults, calling him "every name you can think of in the handbook."

Carnes testified that while his leaf blower was idle, he heard a commotion coming from the other side of the property. He walked around the corner, saw Hilton on the ground, and Cichowski standing over him. Carnes recalled that when he stepped in between Cichowski and Hilton so Hilton could stand up, Cichowski punched Carnes with his right hand and recorded the incident with his phone in his left hand.

Carnes testified that after Cichowski punched him, Cichowski retreated to his home. Cichowski later reemerged recording Hilton and Carnes with a different phone. Hilton testified that Cichowski continued to "belly bump" him after he pushed him into the bushes. Both men testified that Cichowski's actions instilled fear in them, and Carnes testified he "feared for [his] life."

Officer Mark Keele testified he arrived at the scene to investigate a report of an assault. When he arrived at the scene, Cichowski told him that he had an ongoing dispute with the yard crew. Cichowski told Keele that the yard crew was spending an excessive amount of time working on the yard, and it was distracting his girlfriend from her work. Carnes told Keele that Cichowski had punched him, and his teeth hurt, but Keele could not recall if Hilton told him that he was pushed. After he spoke with Hilton, Carnes, and Cichowski, Keele issued Cichowski two citations for assault.

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As Cichowski began his testimony, he commented "I can-I can see those guys out there talking in the hallway.... It's kind of distracting." His attorney responded, "I'm going to ask that you just focus on the questions we ask, okay?"

Cichowski testified that on the day of the incident, the noise was so excessive that he could not hear the television, and although his girlfriend had not commented on the noise, he believed it was likely bothering her too. He walked outside, with his cellphone recording, and approached Hilton. He testified that he tried using a normal tone of voice with Hilton, but Hilton could not hear him over the leaf blower and headphones.

When Hilton turned around, Cichowski recalled they immediately began arguing. Cichowski told Hilton he was being too loud and was taking too long to blow the leaves. He testified that his voice was raised but attributed it to having to talk over Hilton's leaf blower, which he recalled was on during their argument. He explained that within 15 seconds of Hilton and him arguing, Carnes came around the corner, and hit Cichowski's phone out of his right hand.

Cichowski claimed that after the phone was hit from his hand, he "instinctively went to defend himself" and swung with his left hand to throw a punch. He disputed that he punched Carnes, as he believed he never contacted Carnes with his swing, except for possibly brushing Carnes' face. Cichowski claimed he never touched anyone during the incident.

At the conclusion of the evidence, the county court stated that it "assessed the credibility and demeanor-of all the witnesses, the conduct of all the witnesses, as the trial has gone on." It then found Cichowski guilty of disorderly conduct.

Sentencing.

Prior to sentencing, Cichowski filed a motion to strike portions of the presentence investigation report (PSR). Cichowski argued the PSR included inflammatory statements, namely that one victim's impact statement included speculative commentary about Cichowski's medical history and both victims provided sentencing recommendations.

Both Hilton and Carnes submitted victim impact statements. Hilton described the emotional impact of the incident, and how since, he feels like he must watch over his back nonstop and he feels uncomfortable. He suggested in his statement that the county court sentence Cichowski to jail time and emphasized that Cichowski spit on him multiple times, which he believed to be especially dangerous since he did not know if Cichowski had any concerning medical diagnoses. Carnes also suggested that the county court sentence Cichowski to jail time with a year on probation and anger management classes. He wrote the incident "made me scared for my life."

At sentencing, after hearing Cichowski's argument in support of his motion to strike, the county court explained that it would disregard any of the objectionable statements the victims made in their statements. It denied Cichowski's motion, and explained its reasoning:

Like, I didn't - I - it doesn't have much impact on me because you didn't do anything with the presentence investigation anyway. So, I mean, I see my role as determining am I going to have a punitive-type sentence, or is it going to be a rehabilitative sentence. And when you don't participate, there's not-I don't know what the rehabilitation would be....So, I didn't take into consideration any of . . . the victims' recommendations for sentence, because that's not their province; it's the Court's province

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The county court sentenced Cichowski to 60 days' imprisonment. It found that the victims were credible during trial and noted that the...