State v. Godek
| Decision Date | 02 December 2022 |
| Docket Number | S-22-015. |
| Citation | 312 Neb. 1004,981 N.W.2d 810 |
| Parties | STATE of Nebraska, appellee, v. James T. GODEK, appellant. |
| Court | Nebraska Supreme Court |
Todd A. West, Assistant Sarpy County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
James T. Godek appeals from his conviction and sentence for terroristic threats,1 based upon phone calls he placed from Council Bluffs, Iowa, to persons in Bellevue, Sarpy County, Nebraska. Arguing that the elements of the offense do not require a recipient or listener, he contests the district court's territorial jurisdiction and venue; sufficiency of the evidence; the court's instruction on venue; and its denial of his motions to quash, for directed verdict, for mistrial, and for new trial. Because we reject his premise, his assigned errors lack merit. We affirm the judgment.
Godek placed a series of phone calls from his residence in Council Bluffs to his sister's business, which is in Bellevue. Prior to making the phone calls, Godek had not seen or spoken with his sister, Jayme Cronk, in approximately 3 years. Cronk was working at her business with Jennifer Merriman, Godek's other sister, when Godek made the phone calls at issue.
Cronk answered the first phone call. Godek identified himself to Cronk and then stated that he lost his job and wanted to die. According to Cronk, Godek became belligerent while speaking to her on the phone and proceeded to blame Cronk, Merriman, and Cronk's husband for his situation. Godek then stated that he wanted Cronk dead. After Cronk hung up the phone, she called the 911 emergency dispatch service to report the incident. Cronk was told that an officer would be sent to her business to make a report.
Godek called the business a second time. This time Merriman answered the phone. Godek continued making threatening statements, including telling Merriman that he was going to kill Cronk's husband, who was working in Council Bluffs. Cronk recorded the second phone call on her cell phone because she "knew it wasn't going to be good." Cronk promptly called her husband to notify him of Godek's threats.
Godek called a third time. While Cronk and Merriman were speaking with Godek, an officer from the Bellevue Police Department arrived at Cronk's business.
Godek then called yet again. Merriman answered the phone, identified the caller as Godek, and gave the phone to the officer. The officer attempted to talk with Godek and observed that he seemed agitated and upset. Godek challenged the officer to come to Council Bluffs to fight him.
Thereafter, the officer notified law enforcement in Council Bluffs of Godek's situation. Law enforcement officers responded that they had done a welfare check at Godek's residence earlier that day and indicated that they would not be investigating the phone calls. The officer applied for an arrest warrant in Sarpy County.
The State filed an amended information in the district court for Sarpy County charging Godek with terroristic threats, a Class IIIA felony, pursuant to § 28-311.01.
Prior to trial, Godek filed a motion to quash, asserting lack of subject matter jurisdiction and improper venue. Godek contended that terroristic threats did not take place in Sarpy County because Godek uttered the threats while he was in Iowa. The State countered that the terroristic threats statute requires that a threat be made toward "another,"2 meaning that a recipient is a material element of the offense. The State asserted that the recipient here received the threats in Sarpy County, making jurisdiction and venue appropriate.3 The court agreed with the State and overruled the motion to quash.
The court, with a jury, tried Godek for terroristic threats. After the State rested its case, Godek moved for a directed verdict. Godek asserted that the State failed to prove beyond a reasonable doubt that the alleged terroristic threats took place in Sarpy County. The court disagreed with Godek and overruled the motion, reasoning that the State met its burden to prove a material element of terroristic threats—receipt of the threat by another—took place in Sarpy County.
At the close of the evidence, the parties held a conference regarding the court's proposed jury instructions. The State proposed the following instruction to define the elements of terroristic threats:
Godek objected to provision (3) as a misstatement of law, arguing that the instruction improperly expanded jurisdiction based on a nonexistent element of terroristic threats—a recipient. The court adopted the State's instruction and read it to the jury.
During closing arguments, the State told the jury that a recipient is a material element of terroristic threats. The State further explained that the offense is not committed until someone hears or receives the alleged threat. The State argued that the recipients of Godek's threats were located in Sarpy County, which was sufficient to show that Godek's offense took place there. Godek objected and moved to strike the State's argument. In addition, Godek moved for a curative instruction to the jury or, in the alternative, a mistrial. The court overruled his motion.
The jury found Godek guilty of terroristic threats. He timely moved for a new trial on various grounds, including prosecutorial misconduct, insufficiency of the State's evidence, and improperly instructing the jury on the elements of terroristic threats. Following a hearing, the court denied the motion for a new trial. It sentenced him to 2 years’ imprisonment, followed by 18 months of post-release supervision.
Godek filed a timely appeal, which we moved to our docket.4
Godek assigns, restated, that the district court erred by (1) overruling the motion to quash for lack of subject matter jurisdiction; (2) giving the jury an "improper and misleading" instruction of the law, which stated that venue was appropriate in Sarpy County; (3) overruling Godek's objection to the prosecutor's "improper[ ]" statements during closing arguments, not issuing a curative instruction, and overruling the motion for a mistrial; (4) overruling Godek's motion for a directed verdict; (5) finding the evidence sufficient to sustain the jury's guilty verdict; and (6) overruling the motion for a new trial.
We set forth two overarching standards of review. 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.5 When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusions.6 Additional standards are set forth at appropriate points in the analysis section below.
At oral argument, Godek iterated two concessions, both of which are consistent with his arguments in brief. First, there is no dispute regarding the facts relating to the phone calls. Second, all of his assignments of error are based on his interpretation of the elements of terroristic threats under § 28-311.01.
Ordinarily, we would first address the district court's jurisdiction. But here, to answer the jurisdictional question, we must first determine the elements of terroristic threats as applied to these facts.
Godek contends that the district court erred by interpreting the word "another" in the terroristic threats statute7 to require that someone actually receive the threat as an element of his offense. Godek points to the plain language of § 28-311.01(1), which, he argues, does not state that the person must "communicate" the threat or that the threat must be "receive[d]" by another person.8 Godek asserts that the court improperly read those terms into the statute. Godek also suggests that the word "another" refers only to the defendant's mens rea, or the requisite intent for committing terroristic threats.
The State counters that the plain language of the statute requires making threats "[w]ith the intent to terrorize another"9 or "[i]n reckless disregard of the risk of causing such terror."10 The State asserts that this language indicates that a threat must be "communicated or conveyed to another."11 The State also asserts that a " ‘threat,’ " by definition, means " ‘[a] communicated intent to inflict harm or loss on another or on another's property.’ "12 Finally, the State suggests that Godek's position, which would permit a conviction for terroristic threats even in the absence of a communication, is a "non sequitur" in light of the statute's purpose.13
[3] Statutory interpretation presents a question of law.14
To determine the elements of terroristic threats as applied to these facts, we begin by setting forth familiar principles of statutory interpretation. Statutory interpretation begins with the text, and the text is to be given its plain and ordinary meaning.15 An appellate court will not resort to interpretation of statutory language to ascertain the meaning of words which are plain, direct, and unambiguous.16 Similarly, it is not within the province of the courts to read meaning into a statute that is not there or to read anything direct and...
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