State v. Grant
| Decision Date | 14 January 2022 |
| Docket Number | No. S-20-915.,S-20-915. |
| Citation | 968 N.W.2d 837,310 Neb. 700 |
| Parties | STATE of Nebraska, appellee, v. Kenneth W. GRANT, Jr., appellant. |
| Court | Nebraska Supreme Court |
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.
The appellant, Kenneth W. Grant, Jr., accused of shouting in a loud, menacing, and persistent manner from his apartment'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 fighting 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.
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 knowingly disturb[ed] the peace and quiet of ... Gregory Lee Patterson and Jennifer Sue Ponce" and that he had "[i]ntentionally or knowingly threaten[ed] [Ponce] in a menacing manner, 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, beginning 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, Ponce acknowledged that while Grant had threatened others, he had not directly threatened to shoot her or her colleague. Still, feeling "[v]iolated" and "disturbed," and frustrated 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 smoking cigarettes on his front porch. While there, Patterson heard the vulgar things Grant had "loud[ly]" said to Ponce and her colleague. 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, " "
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 killing] 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
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 admitted 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 disturbing the peace.
Callese recalled being summoned again to the same location 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 sentenced him to 10 days in jail for each conviction, the sentences 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 perfected a timely appeal, and we moved his appeal to our docket.
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.
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
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 beyond 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 rulings on those issues de novo.7
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 untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.9
Grant assigns, first, that his conviction for disturbing the peace was in error because the speech underlying his conviction 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.
The 1st Amendment to the U.S. Constitution, applicable 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 subjects ...."11 We have recognized that the " ‘parameters of the constitutional right to freedom of speech are the same under both 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
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 limited 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 lawlessness, true threats, and fighting words.19 The State asserts that...
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