State v. Moore, 86-1045

• Decision Date: 28 August 1987
• Docket Number: No. 86-1045,86-1045
• Citation: 226 Neb. 347,411 N.W.2d 345
• Parties: STATE of Nebraska, Appellee, v. Melvin L. MOORE, Appellant.
• Court: Nebraska Supreme Court

Page 345

411 N.W.2d 345

226 Neb. 347

STATE of Nebraska, Appellee, v. Melvin L. MOORE, Appellant.

No. 86-1045.

Supreme Court of Nebraska.

Aug. 28, 1987.

Syllabus by the Court

1. Constitutional Law: Appeal and Error. Except in the most unusual of cases, for a question of constitutionality to be considered on appeal, it must have been properly raised in the trial court. If not so raised, it will be considered to have been waived.

2. Arrests: Police Officers and Sheriffs: Probable Cause. The lawfulness of an arrest without a warrant must be based on probable cause, which exists where facts and circumstances within an officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed. If the facts available to the officer at the time of the arrest would warrant a person of reasonable caution in the belief the action was appropriate, then probable cause exists.

3. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. Further, in a case tried to the court without a jury, there is a presumption that the trial court, in reaching its decision, considered only evidence that is competent and relevant, and this court will not overturn such a decision where there is sufficient material, competent, and relevant evidence to sustain the judgment.

Dorothy A. Walker of Mowbray, Chapin & Walker, P.C., for appellant.

Norman Langemach, Jr., Lincoln City Prosecutor, for appellee.

BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

Melvin L. Moore appeals his convictions for disturbing the peace and quiet of others, a violation of Lincoln Mun. Code § 9.52.030 (1984), and resisting arrest, a violation of Lincoln Mun. Code § 9.12.040 (1984). We affirm.

At approximately 1 a.m. on July 29, 1986, Lincoln Police Officer Don L. Marti responded to a complaint of a disturbance at a house identified as 615 South 21st Street, in a Lincoln residential neighborhood. On arrival at the scene, Marti initially stopped his cruiser 75 to 100 feet away from the house and heard noise coming from the house's front yard, that is, people talking and laughing very loudly in what Officer Marti characterized as "party noise." Marti then stopped his cruiser on the street in front of the house, but could not see the individuals who were making the noise, since they were in a darkened part of the yard. When he had stopped his cruiser, Officer Marti shined the cruiser's spotlight on the front of the house, lighting the area where the individuals were standing, and then observed four males in the front yard, who were drinking from some unidentifiable type of beverage bottles.

As Officer Marti was getting out of his cruiser, Moore ran up to the cruiser and yelled, "What the fuck are you doing here? You've got no business here. Get the fuck out of here." Officer Marti testified that Moore

continued to yell at me and I finished getting out of my cruiser and he was right up in my face. It was difficult to get out of my car, in fact. And I explained or tried to explain to the defendant that I was there on a disturbance call which seemed to even make him madder.... And I asked him for some identification and he refused to do that. And he kept yelling at me.

Moore continued "yelling and screaming" and "flailing his arms around" as Officer Lyle A. Lacy, another Lincoln policeman dispatched on the disturbance call, arrived at the scene. Officer Lacy tried to calm Moore and asked him to move away from Officer Marti so that Officer Lacy could speak with Moore. Officer Lacy attempted to move Moore away from Officer Marti on at least three occasions, but Moore kept running back to Officer Marti, yelling at him and poking his finger in Marti's face. Officer Marti described the incident:

Finally, I think maybe the second or third time that he came running back at me and poking his finger in my face yelling, I told Mr. Moore that he was under arrest and he stated, "Don't touch me," and started to back away. I followed Mr. Moore for a few steps. I told him he was under arrest and I reached out and I grabbed ahold of his left arm. At which time Mr. Moore grabbed me by the front of the shirt with one arm and by the neck with his other hand. And at that point the fight was really on. We grappled with Mr. Moore and the other three parties who were in the front yard started grabbing onto us. And other people came from outside--from inside the house and began grabbing onto us. We called for additional units. And I would say maybe two to three minutes elapsed before other units could get there. At which time the majority of the other people retreated inside the house and locked the door. And Mr. Moore was finally subdued and placed in the cruiser by Officer Lacy.

Officer Lacy testified that Officer Marti "told Mr. Moore he was under arrest for disturbing the peace." Immediately after such statement to Moore, "Officer Marti put his hand out and touched Mr. Moore on the arm," as testified by Officer Lacy. Both officers were in police uniform during their contact with Moore.

After finding Moore guilty of disturbing the peace and resisting arrest, the trial court sentenced Moore to pay fines of $10 and $75, respectively, on the convictions. On appeal to the district court for Lancaster County, Moore's convictions and sentences were affirmed. Moore appeals his convictions to this court, assigning as error and arguing that the municipal ordinances under which he was convicted are constitutionally invalid; that his conviction for resisting arrest was contrary to the Nebraska statutory scheme governing justification for use of force; that his conviction for disturbing the peace was based solely upon speech which is protected by the 1st and 14th amendments to the U.S. Constitution; and that there was insufficient evidence as a matter of law to sustain his convictions beyond a reasonable doubt.

While Moore claims that the municipal ordinances under which he was convicted are unconstitutional, the question of constitutionality of those ordinances was not presented to the trial court and, therefore, will not be considered on appeal. "Except in the most unusual of cases, for a question of constitutionality to be considered on appeal, it must have been properly raised in the trial court. If not so raised, it will be considered to have been waived." State v. Brand, 219 Neb. 402, 404, 363 N.W.2d 516, 518 (1985). See, also, State v. Fleming, 223 Neb. 169, 388 N.W.2d 497 (1986); State v. Hunter, 219 Neb. 850, 367 N.W.2d 122 (1985); State v. Kaiser, 218 Neb. 556, 356 N.W.2d 890 (1984). Although Moore did not question the constitutionality of the ordinances during his trial, Moore contends that the constitutionality issue was raised during his appeal to the district court and, therefore, should be addressed by this court. A similar contention was rejected in State v. Kaiser, supra, where we stated at 558, 356 N.W.2d at 892:

The fallacy with this argument, however, is that appeals in criminal matters from the municipal court to the district court are not reviewed de novo upon the record; rather, they are reviewed "for error appearing on the record made in the county or municipal court." Neb.Rev.Stat. § 24-541.06(1) [Reissue 1985]...