Even where the misstatement went to the nature of the dispute itself, a conviction for <mask> was recently reversed in a similar situation. The County Court, Nassau County, speaking through Johnson, J., stated in People (Complaint of Broder) v. Heller (166 Misc. 155): “ In my opinion the evidence fails to sustain such finding. To be sure it shows that resort was had to a false statement of fact, i. e., that a strike was in progress at the picketed premises, a type of picketing which has been enjoined as unlawful. [Citing cases.] However, although such a false statement may be enjoined, it does not follow that it so tends to a breach of the peace as to constitute disorderly conduct.”


In the Perry case the facts were these: The defendants-appellants, while in a restaurant, at 4:00' in the morning, struck the defendant with their fists so as to cause him to fall twice to the floor. Three persons attempted to enter the restaurant but were waved away with the information that the place was closed. The court held this proof was insufficient to warrant the conviction of the defendants of the crime of <mask> as defined by subdivision 2 of section 722 of the Penal Law where it appears that no appropriate language was heard, the restaurant was not fully lighted, only one employee was present and there was no one in the adjacent street except three witnesses who, instead of finding the defendant’s conduct offensive, testified that they voluntarily looked on to gratify curiosity or for amusement. The acts of the defendants cannot reasonably be held to have tended to such a disturbance of the tranquility of the people as to have constituted 1 ‘ disorderly conduct ” in violation of the statute. They were guilty of no offense other than assault either at common law or under the Penal Law.


“ (a) Any criminal complaint charging <mask> or an assault between spouses or between parent and child or between members of the same family or household shall be transferred by the criminal court, not more than three days from the time the complaint was made, to the family court in the county in which the criminal court is located, unless


The court found defendant guilty of: (1) attempted assault in the third degree; (2) <mask> (two counts); and (3) harassment in the second degree. The court found defendant’s testimony regarding her demeanor at the scene “incredible and unbelievable.” It also found that the videotape introduced by the defense corroborated the police officers’ account because it showed “mayhem” at the scene.


“ Intoxication in Public Places — No person shall be intoxicated on any public street, avenue, alley or lane, or in any public place in the Village of Johnson City. “ Any person violating this section shall pay a penalty of not to exceed Ten Dollars or be imprisoned for not to exceed six months or both such fine and imprisonment for each offense. Any violation of this section shall constitute <mask> and any person violating the same shall be a disorderly person.” The defendant contests the validity of this ordinance upon the ground that a State statute, namely, section 1221 of the Penal Law, already prohibits “ Intoxication in a public place ” and therefore any attempt of a municipality to enact an ordinance covering the same subject is illegal and void.


Here, the police only observed the car for a short time, as it traveled a distance of about 40 yards, less than the length of most city blocks. Moreover, the evidence adduced at the hearing was nearly devoid of information about the attendant circumstances, e.g., whether there were any gas stations or businesses (other than a McDonald’s restaurant) in the neighborhood, whether any of these establishments were open at the time (1:00 a.m.), whether there were any people out on the street or whether the area included residential buildings. Accordingly, the evidence was insufficient to give the police reason to believe that any of the occupants of the car intended or risked causing public annoyance, i.e., that the “public harm” aspect of the statute would be satisfied. Accordingly, the stop of the car cannot be justified based on a perceived violation of the <mask> statute.


Based upon the foregoing, the defendant was charged with two counts of <mask> in violation of subdivisions 1 and 3 of section 240.20 of the revised Penal Law. The trial was held before this court. The People’s case consisted solely of the testimony of the two police officers. The defense called no witnesses and rested at the conclusion of the People’s case.


Felix J. Catena, J. Appeal from three judgments of the Justice Court, Town of *399Minden (Patterson, J.), rendered February 3, 2000, convicting the defendant twice of <mask> (Penal Law § 240.20 [3]) and once for harassment in the second degree (Penal Law § 240.26 [1]) based upon three separate incidents allegedly occurring in the Village of Fort Plain, New York.


It seems to me that all of the elements of the pertinent provisions of section 722 of the Penal Law can be found here. There Avas certainly a disturbance. There Avas certainly interference Avith the removal, under police instructions, of the automobile by “ Mike’s ” íoav truck. There Avas, furthermore, obstruction of the plan adopted by the police officer to clear the scene of the accident. The question of “ annoyance ” or the element of a person’s being “ offensiA'e ’’ are matters that are somewhat ■subjective. Apparently the police officer felt annoyed and considered the actions of the defendant to be offensive. The defendant’s appearance on the scene and his subsequent conduct seemed to stem from the fact that he wanted to handle the towing and repair job himself. There Avas, presumably, nothing to prevent him from proceeding Avith the repair work after the emergency clearance of the scene had been accomplished. From all that appears, 1 ‘ Mike’s ’ ’ íoav truck could have been directed to take the damaged' automobile to the defendant’s garage. It does not appear from the record, however, that the defendant himself had a tow truck present or that he or Miss Newell made any attempt to direct “ Mike’s ” tow truck operator to have the car taken to the defendant’s garage. Certainly a citizen in a legitimate business is entitled to compete for customers ‘ ‘ in the market ”, so to speak. The time and place for such competition, hoAvever, is not in the center of a busy intersection while a police officer is correcting a situation that has arisen as the result of an accident. The officer’s action, under all the circumstances, was clearly not an abuse of the enforcement of the <mask> statute, such as is referred to in the Tinston case.


The case of People ex rel. Price v. Warden (73 App. Div. 174) has been cited but that case applies to a conviction in the city of New York where the charter of the city of New York expressly provided that the magistrates of the city of New York might hold court on Sunday, and that case has no application here. There are a number of other cases, which have been decided, having reference to conviction on Sunday in the city of New York, and among these is the case of People ex rel. Burke v. Fox (205 N. Y. 490). In this case Judge Werner discussed section 5 of the Judiciary Law and said “ there are many minor offenses colloquially classified as crimes, which are merely violations of police regulations.” Among these are' vagrancy, public drunkenness, and various kinds of <mask>. He stated that these and other minor offenses, all of which appear to disturb the public peace, fall within the meaning of the language of section 5 of the Judiciary Law.


A person is guilty of <mask> pursuant to Penal Law § 240.20 (5) when “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [h]e obstructs vehicular or pedestrian traffic.” Similarly, a person is guilty of disorderly conduct pursuant to Penal Law § 240.20 (6) when “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . .[h]e congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse.” The nonhearsay allegations relating to both charges are found in the “to wit” portion of each accusatory instrument.4 In the factual portion of the information charging the defendant with violating Penal Law § 240.20 (5), Albany Police Officer M. Geraci affirms, upon his direct knowledge, that


<mask> - is not a nebulous fancy, but a legal reality, and disorderly conduct which tends to a’ breach of the peace, while not of the body of the sphere of crime, is a near satellite, and when committed in this city is mildly- punishable as a public offense under the unrepealed sections of the Consolidation Act on the subject (People v. Mansi, 129 App. Div. 386; People ex rel. Burke v. Fox, 205 N. Y. 490).


In People v. Donegan (19 Misc 2d 541 [1959]) the court stated at page 543, “ To constitute <mask> there must be proof not only that (1) the defendant committed the acts charged, but also that (2) they were committed with intent to provoke a breach of the peace or under circumstances likely to cause a breach of the peace. Each case must depend upon the time, place and circumstances of the act. ’ ’


In many instances there is a presumption in criminal matters which has the effect of relieving the prosecution of proving a necessary element of the criminal act unless and until the defendant comes forward with substantial evidence to rebut the presumption. Then of course the presumption is dissipated and the People must prove all the elements beyond a reasonable doubt. There is a presumption of sanity and in a criminal case the prosecution is enabled to establish a prima facie case without introducing evidence of sanity at the time of commission of the crime. (Penal Law, § 815.) The burden of coming forward with evidence of insanity is upon the defendant. (People v. Egnor, 175 N. Y. 419.) There is a presumption of guilt from the recent and exclusive possession of the fruits of a crime if unexplained by the defendant. (Richardson, Evidence [8th ed.], § 88.) There is a presumption that a person is responsible for his acts. (Penal Law, § 815.) There is a presumption in a prosecution of a <mask> charge under subdivision 11 of section 722 of the Penal Law that a person who is engaged *795in an illegal occupation or bears an evil reputation and who consorts with persons of like reputation or criminals is doing so for an unlawful purpose. Under section 1312 of the Penal Law, failure to provide a deed of title as set out in section 1311 of the Penal Law, is presumptive evidence of misappropriation of funds held in trust. A person is presumed to intend the natural consequences of his act. (People v. Lieberman, 3 N Y 2d 649, 652.) Under section 1400 of the Penal Law, the infliction of a maiming injury is presumptive evidence of the intent to maim. There is a presumption that the proof of possession of any policy slip is presumptive evidence of possession thereof knowingly. (Penal Law, § 975.) When a machine gun is found in any room, dwelling or structure, the presence thereof is ‘ presumptive evidence of its illegal possession by all the persons occupying the place where” it is found. (Penal Law, § 1897, subd. 1-a.)


In a family offense proceeding, the allegations asserted in a petition seeking the issuance of an order of protection must be supported by “a fair preponderance of the evidence” (Family Ct Act § 832). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record (see Matter of Gray v Gray, 55 AD3d 909, 909 [2008]; Matter of Kraus v Kraus, 26 AD3d 494, 495 [2006]). While the record does not support a determination that the appellant committed the family offense of reckless endangerment in the second degree against the petitioner, even if he committed that offense against other members of the subject household, a fair preponderance of the credible evidence supports the Family Court’s determination that the appellant committed the family offenses of menacing in the second degree and harassment in the first degree against the petitioner, as well as <mask>, thus warranting the issuance of an order of protection (see Matter of Banks v Opoku, 109 AD3d 470, 470 [2013]; Matter of Nettles v Fearrington, 95 AD3d 1131, 1131 [2012]; Matter of Gray v Gray, 55 AD3d at 909-910; Matter of Rankoth v Sloan, 44 AD3d 863, 864 [2007]; Matter of Onuoha v Onuoha, 28 AD3d 563, 564 [2006]).


In this action, plaintiff seeks damages sustained as a result of his being arrested for <mask> pursuant to Penal Law §240.20. Plaintiff asserts claims against defendant for false arrest, false imprisonment and malicious prosecution stemming from defendant’s initiation of a criminal complaint against plaintiff as a result of an incident occurring on November 24, 1991 at a bar known as "Joe’s East-West” in the Town of New Paltz, Ulster County. Based on the criminal complaint, plaintiff was arrested by Troopers Rudolph Simmons and Kevin Kesick and taken before a Magistrate where he was arraigned and imprisoned pending the posting of bail. The disorderly conduct charge was ultimately dismissed in the interest of justice. The disposition order also notes that complainant failed to appear.


Defendant fled on foot as Newby arrived. Defendant ran to apartment number 17 where Koval and Newby observed him punch and break a window in the screen door to the apartment. The two officers pursued defendant into a second floor bedroom of the apartment and Koval again informed defendant that he was under arrest for <mask>. Defendant was handcuffed and led out of the apartment. As defendant and Newby descended the stairs, defendant began to struggle and jerked away from Newby, causing both defendant and Newby to fall down the stairs. Newby injured his leg in the fall. Defendant was taken to the police station and continued to physically struggle and curse; he was ultimately placed under protective restraints.


*356This" is the view I take of the case, and I think it does not conflict with any rule of law, or any adjudged case in this State. While it is beyond the power of the law to rectify men’s minds, and to infuse into them that spirit which prompts them to the doing of praiseworthy things promotive of the peace and comfort of the community, still it is within the power, yes, the duty, of the law to take from those who are indifferent and evil-minded, the ability of doing public mischief, and to limit and restrain them of their liberty, if needs be, when they grossly abuse it. Courts, I think, would but poorly discharge their obligations, if by the judgments which they announce they did not endeavor to secure the comfort of the community by taking from such people the power, at least for the time, of disturbing the public mind. Indeed, it would do violence to the understanding of men to maintain that the defendant’s conduct was not disorderly. That it inevitably tended to a breach of the peace is clearly sustained by the evidence; because it actually resulted in a flagrant breach of the peace. Upon consideration' the court cannot say that there was not abundant evidence before the magistrate to support the judgment of conviction of the defendant of <mask> tending to a breach of the peace.


Moreover, section 813 of the Family Court Act applies only to charges involving: “ <mask>, harassment, menacing, reckless endangerment, an assault or an attempt [sic] assault between spouses or between parent and child or between members of the same family or household ”. Not only is there an absence of such relationship in this case (People v. Allen, supra), but the crimes charged here are not included among those enumerated in the statute. In People v. Lewis (29 N Y 2d 923) holding that the crime of incest did not come within the jurisdiction of the Family Court under sections 812 and 813, the court stated at page 924: “ Neither the original enactment of section 812 specifying disorderly conduct and assault nor its subsequent amendment to include acts which would constitute *997harassment, menacing, reckless endangerment and attempted assault (L. 1969, ch. 736), purport to include incest, which, thus, under the familiar rule of construction, will be deemed excluded (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 240). Neither do we find that act within its intendment ”. The concurring opinion of Chief Judge Full in that case is instructive. It must be concluded that the rationale of Lewis {supra), referable to incest, is equally applicable to an indictment for sodomy, precluding Family Court jurisdiction even on a preliminary basis.


5 The criminal court found Husband incompetent for trial in separate orders in October and December 2012. Vurimindi 1, 2018 WL 2423608, at *4 n.7. Although it is unclear when the criminal court found Husband competent, Husband was incarcerated in October 2013 for a violation of his bail in the criminal matter and remained in custody throughout the remaining litigation of the bifurcated divorce decree. Id. at *1, *4 n.7; see also Com. v. Vurimindi, 200 A.3d at 1034 (noting that mental health competency evaluations were conducted in the criminal case between February 2012 and July 2013). Although the Commonwealth charged Husband with stalking and <mask>, Husband’s criminal matter did not involve any of the other individuals mentioned in the present appeals.


In the present proceeding, in which he seeks to restrain the Magistrate’s Court from proceeding with the present charge of <mask> pending against him, petitioner raises several serious questions of law and procedure, and they will be separately discussed. His first contention is that Domroe is not a special patrolman, but merely an employee of the Department of Sanitation of the City of New York; that he may not be and never was effectively appointed a special patrolman or a peace officer; and that in any event, neither the prevention nor detection of disorderly conduct or enforcement of the laws pertaining thereto, come within the scope of the functions or purposes of the Department of Sanitation. He urges that by reason thereof, the Board of City Magistrates of the City of New York, acting through the Police Department, or in any other manner, lacked the authority to issue a blank book of summonses to the said Domroe for completion and service thereof; and that Domroe lacked the authority to issue such a summons in the name of the Chief Magistrate of the City of New York.


(now here) were in premises No. 301 Schermerhorn Street, in a hall which is being rented by its owners for use for meetings and amusement purposes, and they did with about 280 others commit the offense of <mask> tending to a breach of the peace, in that they were present in said premises while an indecent performance was in progress with some women partly nude and one woman, Bobby Jennings, all nude, dancing in an indecent and suggestive manner and in a manner so as to be sensuous, in the course of which, and during the period of time from the hour of 9 o’clock and to the hour of 10.30 o’clock p. m., those present were shouting, yelling during the night and disturbing persons residing in the vicinity of said premises, all in violation of the law for such cases made and provided by the Legislature of the State of New York.


On the other hand, in People v. Perry (265 N. Y. 362 [1934]) the defendants’ convictions for <mask> were reversed where they had waged a fist fight in a restaurant after closing. The court ruled that the defendants had not annoyed, disturbed or interfered with any members of the public, and coined the phrase, subsequently much quoted, that a breach of the peace sufficient to sustain a conviction for disorderly conduct must be “ a disturbance of the tranquillity of the People of the State ” (p. 365). 1


The next objection is to the mode by which the prisoners were transferred from the city prison to the workhouse on Blackwell’s Island. The act abolishing the almshouse and creating the Department of Public Charities and Correction (Laws of 1860, 1026, ch. 510), authorizes the board of commissioners to transfer and commit from the city prison to the workhouse,' vagrants, disorderly persons and persons committed for crime. There might be some doubt whether persons committed to the city prison for <mask> would be included in either of the classes above specified ; but that doubt is set at rest by the passage of the act of 1864 (Laws of 1864, 1342, ch. 586), which is not" only a legislative recognition that such was the intention, but an act designating the time at which the transfers may be made in such cases. This disposes of the first objection made upon this ground.


In addition to these specific acts, there was credible testimony to the effect that the general reputation of the Premises in 1987 was that it was used for prostitution. The building manager of the Brooklyn Academy of Music testified to that fact as did several other individuals including one James MacArther. One witness testified that he had personally been "solicited” by the women known to him to frequent the Premises. A security guard at the nearby Brooklyn Public Library testified that he also was personally "accosted” by some of the "regulars” at the Premises who have become familiar to him. A plainclothes policeman, Marlon Mountcastle, related that on May 11, 1986, when he approached the Premises, a female who was in front of the building offered to "have sex” with him for money. She led him to a room in the Premises. Mountcastle arrested the woman, and she later pleaded guilty to a charge of prostitution. This same woman, one Anna Williams, was convicted three additional times of loitering for purposes of prostitution and once for <mask>. Further testimony presented is merely cumulative in *652regard to a finding that the Premises was being operated by defendants for the purpose of prostitution.


1Defendants did not raise the obstruction charge as a basis for summary judgment. And, although they argued probable cause existed to arrest Wood for <mask> and littering, § 3767.32(A), because Wood “threw his refunded money on the ground,” DE 31, Mot. for Summ. J., Page ID 205, 208, the district court did not address the littering argument and the defendants do not press it on appeal. No. 20-3599 Wood v. Eubanks, et al. Page 8


“ In cities of five hundred thousand inhabitants or over any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of <mask>: “ 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct or be offensive to others; ” The transportation of intoxicating liquors into hotels or other public places, or the public sale thereof anywhere within the State, or dispensation or consumption thereof in public places, and any other course of conduct indicating a similar open or public defiance to the United States Constitution, constitutes an affront to the government of the United States and is a resistance to and attempted nullification of its organic law, and tends to place the administration of government and law in disrepute and contempt, is annoying, disturbing and offensive to the law abiding, and tends towards a breach of the peace, and all who by their acts or acquiescence participata in such conduct, are guilty of disorderly conduct under section 722 of the Penal Law of the State of New York. So too, a place in which such practices are conducted or permitted “ offends public decency ” and is a public nuisance (Penal Law, § 1530), and may be abated, and those who conduct or permit such use are guilty of a misdemeanor. (Penal Law, § 1532.)


The theory of the prosecution is obvious from the statement of the district attorney at the trial. He said: “ We can disregard the strike and everything else, but the fact that the sidewalk is only four feet wide and these men walked two by two, blocking the sidewalk, is <mask>.” The learned trial judge at page 5, stenographer’s minutes, said: “ I say they have the right to lawfully picket, but they cannot exaggerate it. They can do so in a lawful manner. They can induce anybody in that bakery in a lawful manner to leave. ’’


A refusal to present a ticket and the use of loud and boisterous language resulting therefrom may well constitute <mask>. But the defendant was acquitted of that charge. How the court arrived at a conclusion of the defendant’s guilt for a violation of the Penal Law section under discussion is beyond my understanding. This defendant had a perfect right to be on *886that train. He had paid for that ride and he had the right to take that ride between Island Park and Pennsylvania Station as often as he wished during the week in question. How can he steal that which is his and unencumbered! To brand him a thief under the circumstances disclosed in this record is unjust, illegal and contrary to common sense.


The court of appeals affirmed. Relying on our opinion in May v. State (addressing a vagueness challenge to the pre-1983 harassment statute),7 the court of appeals concluded that the term "alarm," as it appears in Section 42.01(a)(8), is unconstitutionally vague-and is therefore necessarily "of indeterminate or variable meaning" when used without clarification in a charging instrument.8 The court of appeals ultimately held that "when a defendant is charged with <mask> under section 42.01(a)(8), he is entitled to notice of how the manner in which he displayed [the] firearm was calculated to 'alarm' because absent such notice the defendant would be unable to prepare a defense."9


Beyond Greene and Kennedy, we had already made clear by 2016 that profanity alone is insufficient to constitute fighting words under Ohio’s <mask> statute. See D.D., 645 F. App’x at 425, 427 (denying qualified immunity to officer on false arrest claim because “Ohio’s disorderly conduct statute and the First Amendment require more than the uttering, or even shouting, of distasteful words,” and “no competent officer would have found probable cause to arrest [the plaintiff]”); Leonard, 477 F.3d at 359 (“The Supreme Court has held that a state may not make a ‘single four-letter expletive a criminal offense.’” (quoting Cohen, 403 U.S. at 26)); McCurdy v. Montgomery Cnty., 240 F.3d 512, 515, 520 (6th Cir. 2001) (finding that plaintiff’s “right to challenge verbally” officer’s conduct, including stating “what the fu*k do you want” and “what the fu*k is your job,” was “well-established”); Sandul, 119 F.3d at 1256 No. 20-3599 Wood v. Eubanks, et al. Page 16


While there are no reported cases on this issue, any rational interpretation of the word "appeals” in CPL 30.30 (subd 4, par [a]), especially in the light of statutory (CPL 450.10, subd 1; 460.20) and constitutional rights to appeal to our higher courts, indicates that the word "appeals” refers to appeals from preconviction proceedings and motions and not appeals from a judgment of conviction in an unrelated case. To take an extreme example, assume that a defendant was convicted of <mask> and at the same time had a homicide indictment pending. Under the District Attorney’s reasoning, if the defendant appealed the disorderly conduct conviction to the Appellate Term of the Supreme Court (as of right) and to our Court of Appeals (discretion) and perhaps to the Supreme Court of the United States, a process which might take years, he would thereby forego his right to a speedy trial on the homicide indictment. Indeed under the District Attorney’s reasoning, it would not even matter if the defendant was in custody during this period. It is apparent that CPL 30.30 (subd 4, par [a]) excludes from speedy trial computations those situations where it is legally or practically difficult, if not impossible, to commence a trial. Thus a defendant cannot be tried if he is being examined to determine his competency to stand trial, or if he is found to be incompetent to stand trial. He cannot be tried if a Judge has to determine whether to *234suppress vital evidence. He cannot be tried while on trial in another case. And although pretrial decisions and orders in criminal cases are generally interlocutory and nonappealable, there are pretrial appeals (such as from a denial of habeas corpus on a bail issue) which would inevitably delay the commencement of a trial and should not be chargeable to the People. To put it simply, the District Attorney’s interpretation of the statute in question would render it unconstitutional. When a court is faced with varying interpretations of a statute, one of which creates an absurd unconstitutional result, the other being reasonable and legal, the option is obvious (McKinney’s Cons Laws of NY, Book 1, Statutes, § 150, subd c).


We are of the opinion that the law has been complied with and that the fingerprints were properly proved to be the fingerprints of the defendant. These fingerprints show the defendant to have been previously convicted on four separate occasions of <mask> that tends to a breach of the peace (loitering); that she was convicted of a violation of the Tenement House Law and also convicted of violating section 887 of the Code of Criminal Procedure.


In responding to the arguments raised by counsel, the court notes that the People’s argument that the search here must be sustained as a search incident to lawful arrest pursuant to Chimel v California (395 US 752 [1969]) and People v De Santis (46 NY2d 82 [1978]) must be rejected. Neither the defendant nor his would-be combatant were arrested or charged with <mask>.


*843Here, the proof required to establish the offense of <mask> varies significantly depending on the manner in which the word "calculated" is understood. If it means "likely," and using the Court's definition of "alarm" and the reasonable-person standard, then the statute merely requires proof that the defendant intentionally or knowingly displayed a firearm in a public place in a manner that he knew was likely to frighten an ordinary person. Using the reasonable-person standard shifts the inquiry from whether the actor subjectively believed his actions would alarm the target audience to whether a reasonable person would be stricken with fear as a result of the actor's display of a firearm. Thus, displaying a gun in a manner "likely" to alarm necessitates a determination of whether a reasonable person would be alarmed in that situation. A judge or jury could easily find that a reasonable person would be alarmed by seeing a gun openly displayed in public in a holster on someone's hip. Thus, there is a good possibility that a person who is lawfully openly carrying a weapon could be convicted of disorderly conduct for "display[ing] a firearm ... in a public place in a manner [likely] to [frighten]" a reasonable, ordinary citizen-even if he did not subjectively intend to alarm anyone and believed his conduct to be fully compliant with open-carry requirements.


The record shows that appellants were charged with a violation of section 722 of the Penal Law in relation to <mask> in that, among other things, on November 13, 1957, in company with others, they extinguished the lights on certain flares placed on Main Street in the city of Oneida to guard barricades where road repairs had been made, and left said flares out. The testimony shows that the offense was committed between the hours of eight and nine o’clock that night.


Paragraph 15 of the affidavit of appeal alleges that after the defendants were arraigned, the court called the defendants before the bench and addressed certain remarks to them ‘ ‘ stating that they had not been convicted of a crime but of an offense and it would not affect their applying for a job or going into the service but that they were not advised that they would have to state on any application where the question was asked if they had ever been arrested, that they would have to say yes, and that if the disposition of the arrest was asked they would have to say they were convicted of <mask> and deponent understands that such a conviction might affect their going into the service or applying for a job or applying for a civil service job or going to college or military academy and they were not advised that the certificate of their convictions for disorderly conduct, which is sometimes called a criminal offense would be required to be filed in the book of convictions in the Otsego County Clerk’s Office at Cooperstown, New York; that as the defendant is advised and believes, a certificate of defendant’s conviction for disorderly conduct was filed in the Otsego County Clerk’s Office February 19, 1957, setting forth that defendant was convicted February 14, 1957, before Judge Db Angelo and fined Ten ($10.00) Dollars and given six months’ suspended sentence, Otsego County Jail and one year probation. ’ ’


The section of the Penal Law applicable here is as follows: ” § 722. <mask>. Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: 1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior; 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others. ’ ’


Much learning and research have been displayed by counsel for the appellant on the points urged for a reversal of this judgment; much wider range, perhaps, has been taken than the cause requires. Most of the questions depend, I think, upon a fair and reasonable construction of the statutes relating to “ <mask> tending to a breach of the peace.” The points argued for a reversal of the judgment for errors committed on the trial I regard as neither substantial nor tenable. The magistrate saw and heard the witnesses. The proof was satisfactory to him that the defendant placed his hands on the person of Samuel Gordon and that he was seen to stretch one of his hands in the direction of his pocket. The magistrate, therefore, was justified in inferring that his intention was to pick a pocket, and in finding that the act was one which tended to a breach of the peace.


In any event, all persons are proscribed from resisting or interfering. One of the alleged examples of resistance in the instant case is the uttering of an obscenity at the police officer. Without getting into First Amendment arguments concerning freedom of speech, it is difficult to see how the uttering of an obscenity is resistance or interference. It may be <mask>, but Mr. Flinn was not charged with that.


The indictment was for keeping a disorderly house. Its averments in that respect were well enough. It is insisted, in substance, that the evidence was not sufficient to uphold the indictment, because it did not show that the house was a nuisance in <mask> of the general public, or of the particular neighborhood. But a bawdy house may also be a disorderly house, and it is so whenever it is shown to be a house of prostitution, open promiscuously to the public, and to which large numbers of persons resort for purposes of prostitution. In Jacobowsky v. The People (6 Hun, 524), Daniels, J., said: “For that purpose it would have been sufficient to have shown that the prisoner kept a house of prostitution. Its direct tendency was to corrupt and deprave public morals, and disturb the peace, and for that reason it was a common nuisance. That has uniformly been held to be the law.” (1 Whart. Grim. Law,' § 2392; 1 Bui. Grim. Law, §§ 665, 1046; 1Y Rich, 80, and other eases cited.)


19. Convictions: Ordinances: Judicial Notice: Complaints: Appeal and Error. Where an appellant assigns as error the insufficiency of the evi- dence to sustain a conviction under a municipal ordinance, an appellate court will not take judicial notice of a municipal ordinance not in the record, but, instead, may apply the ordinance’s text as reproduced in the State’s long-form complaint. 20. Ordinances: Complaints. Absent anything to the contrary, the language of a city ordinance as reproduced in the State’s long-form complaint is to be given its plain and ordinary meaning. 21. Constitutional Law. Where a law is content neutral on its face, the court must then determine the forum in which the speech takes place, as the government’s ability to regulate the time, place, and manner of speech varies according to the type of forum. 22. ____. Speech may take place in a traditional public forum, in a desig- nated public forum, in a nonpublic forum, or on private property. 23. ____. Traditional public forums are those places which are owned by the government and historically associated with expression, such as public streets, sidewalks, and parks, including those which run through residential neighborhoods, whereas designated public forums are those that have not been historically associated with expression but which the government has opened for such use, such as civic auditoriums or public theaters. 24. ____. Nonpublic forums include government-owned property that is not a traditional or designated public forum, such as government offices and military bases. 25. Property: Words and Phrases. Private property is property which is protected from public appropriation, over which the owner has exclusive and absolute rights. 26. Constitutional Law: Public Health and Welfare: <mask>. The police power of a state extends beyond health, morals, and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community, including the power to prevent disturbing noises. 27. Constitutional Law. The right to be let alone is one of the rights most valued by civilized society. The right to avoid unwelcome speech has special force in the privacy of the home and its immediate surroundings. 28. ____. In either a traditional or designated public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions (1) are content neutral as to both subject matter and viewpoint, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information. - 703 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


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 rul- ings on those issues de novo. 7 [7,8] 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 unten- able, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. 9 IV. ANALYSIS 1. Conviction for <mask> Grant assigns, first, that his conviction for disturbing the peace was in error because the speech underlying his convic- tion 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. [9,10] The 1st Amendment to the U.S. Constitution, appli- cable 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 sub- jects . . . .” 11 We have recognized that the “‘parameters of the constitutional right to freedom of speech are the same under See id. See, Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014); State v. Drahota, 280 Neb. 627, 788 N.W.2d 796 (2010). See State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021). Id. NIFLA v. Becerra, ___ U.S. ___, 138 S. Ct. 2361, 201 L. Ed. 2d 835 (2018). Neb. Const. art. I, § 5. - 709 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


Heavican, C.J. The appellant, Kenneth W. Grant, Jr., accused of shouting in a loud, menacing, and persistent manner from his apart- ment’s balcony at persons across the street, was convicted of <mask> 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 fight- ing 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.


Village Ordinance 1.3(b) provides: “ Ordinance 1.3 — <mask>. No person shall indulge in disorderly, or *558noisy or disturbing conduct within the Village. Any person who commits any of the following acts will be considered in violation of this provision: * * * (b) Acts in such manner as to annoy, disturb, interfere with, obstruct or be offensive to others.”


J.G. participated in a fist fight at his school and, when a teacher tried to stop the fight, used a racial slur against that teacher. He called the teacher a "nigger." He admitted in juvenile court that he committed the misdemeanor of <mask> on school grounds. ( Pen. Code, § 415.5, subd. (a)(1).)1 The juvenile court judge granted probation on several conditions, including the condition that his electronic devices would be subject to *1087search. Appellant contends the electronic search condition bears no relationship to his offense and is unconstitutionally overbroad. We affirm.


The petitioner testified that he was charged with aggravated robbery in this case because “Officer D. Williams involved me in this case.” The petitioner said that he “discussed with [trial counsel] that Officer D. Williams had a personal vendetta against me, that we have had run-ins several times.” He said that on a prior occasion, Officer Williams “tried to remove me from my house and then he tried to take me to jail,” but “we got into a big argument.” Officer Williams “wrote me a citation for <mask> and . . . . I vowed to try to take some action. I balled the citation up in front of him.” Approximately one month later, Officer Williams “picked me up walking and lied to me


causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else, attacking, striking, threatening, battering or, having been restrained from doing so by a valid court order, coming within a specified distance of or <mask> of a named family member. [¶] . . . [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit burglary, the violation of a court order, and/or brandishing of a deadly weapon, in the manner alleged in this case. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of burglary, violation of a court order, and brandishing of a deadly weapon. The People must still prove each charge beyond a reasonable doubt. [¶] Except as otherwise provided in Instruction 375, do not consider this evidence for any other purpose.”


Under section 6211 of the Domestic Violence Prevention Act ( Fam. Code, § 6200 et seq. ), neither proof of physical violence nor the threat of imminent physical violence is necessary to establish abuse. (§ 6203, subd. (b); Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853, 206 Cal.Rptr.3d 492 ( Phillips ).) To the contrary, abuse includes "engag[ing] in any behavior that has been or could be enjoined pursuant to Section 6320." ( Fam. Code, § 6203, subd. (a)(4).) "Section 6320, subdivision (a) permits the court to enjoin a party from 'harassing ... or <mask> of the other party. ...' [¶] ' "[T]he plain meaning of the phrase 'disturbing the peace of the other party' in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party. ... Therefore, the plain meaning of the phrase 'disturbing the peace' in section 6320 may include, as abuse within the meaning of the [Domestic Violence Prevention Act], a [defendant]'s alleged conduct in destroying the mental or emotional calm of his [former cohabitant, former girlfriend, or the mother of his child]. ..." [Citation.]' ( Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1146 [167 Cal.Rptr.3d 664].)" ( Phillips , supra , at pp. 852-853, 206 Cal.Rptr.3d 492.)


2. Conviction for Assault or Menacing Threats Having determined that Grant’s conviction for <mask> must be affirmed, we next consider his conviction for assault or menacing threats. Grant does not challenge the constitutionality of this conviction, but, rather, he assigns that there was insufficient evidence to support this conviction. We disagree. [31] When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 46 Our analysis would generally begin with the language of the ordinance that Grant was convicted of violating. 47 But, again, the defendant has failed to include the ordinance at issue in the record, so we may not consider that ordinance’s text. 48 We must instead apply the ordinance’s text as reproduced in the See State v. Estrada Comacho, supra note 4. See In re Interest of Elainna R., supra note 28. See State v. Buescher, supra note 29. - 717 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


listed in Family Code section 6230, subdivision (a)(4)—provided that the events occurred within five years of the charged offense. Thus, encompassed within the meaning of “offense involving domestic violence” in section 1109 is an offense involving conduct constituting <mask> of the victim. Defendant misplaces reliance on People v. Zavala (2005) 130 Cal.App.4th 758 (Zavala). In Zavala, the defendant was charged with stalking and asserted that the trial court erred in instructing the jury on the use of prior violent acts evidence to prove that offense. (Id. at pp. 761, 770.) The defendant “note[d] that . . . .section 1109 is a limited exception to the general ban (under Evid. Code, § 1101) against using prior acts to infer the defendant’s disposition to commit the charged acts, and permits such evidence as the basis for such inference if the defendant is accused of a crime involving domestic violence within the meaning of section 13700.” (Id. at p. 770, italics added.) The defendant in Zavala further asserted that “to the extent the stalking offense does not require that the threat induced the victim to fear great bodily injury or death, stalking is concomitantly not a crime of domestic violence (as defined by [Penal Code] section 13700) and therefore the prior violent acts evidence may not be used by the jury to infer Zavala had a disposition the type of which made it likely he committed the stalking offense.” (Id. at pp. 770-771.) The Fourth Appellate District, Division One, without further analysis or explanation, “agree[d] it was error to give the [section 1109] instruction as to the count charging Zavala with stalking.” (Id. at p. 771.) Approximately five years later, the Second Appellate District, Division Six, decided People v. Ogle (2010) 185 Cal.App.4th 1138 (Ogle), upon which the Attorney General relies. The appellate court in Ogle declined to follow Zavala and essentially rejected the same arguments defendant makes here. In Ogle, the defendant asserted that his prior conviction for stalking should not have been admitted to prove his propensity to commit the charged criminal threats because stalking was not domestic violence within the meaning of section 1109. (Ogle,


State’s evidence, and Grant’s presentence investigation report. According to Grant’s presentence investigation report, Grant was 50 years old at the time of sentencing and had a criminal history dating back to his youth, including convictions in 1996 for third degree assault and in 1987 for attempted burglary. Grant also had recent minor traffic offenses. He had dropped out of high school during the 11th grade, and then for about 2 years, he had been part of a criminal gang. Throughout his life, Grant had struggled to maintain steady employment and was currently unemployed. He reported maintaining few healthy relationships throughout his adulthood. After reviewing this evidence, the county court ordered 10 days in jail for each conviction, to run concurrently, noting that “any less sentence this Court would impose would depreciate the seriousness of the offense and promote disrespect for the law.” Despite Grant’s emphasis on his positive achievements, the record provides a sound basis for the sentences imposed. Accordingly, Grant’s convictions and resulting sentences were not in error. V. CONCLUSION For the reasons explained above, we affirm Grant’s con- victions for <mask> and for assault or menacing threats and find that the resulting sentences were not an abuse of discretion. Affirmed.


The officers began discussing whether they could arrest Wood for disorderly conduct and <mask>. One officer asked another “how long [they] [were] going to allow” Wood to keep talking. Johnson Cam, 4:00–03. That officer replied that “we could do disorderly conduct.” Id. at 4:02–06. Blair, catching up with Wood, turned and said to the officers that Wood was “disturbing my peace” and shouted, “Charge him!” Yates Cam #1, 4:20–22; Troutman Cam #1, 2:37–43. One officer asked the others what they should do, commenting that Wood was “talking the whole way out the door, he’s still talking.” Yates Cam #1, 4:40–50; Troutman Cam #1, 3:00–05. Another officer said, “Well, make an arrest,” to which another asked, “Make an arrest?” Yates Cam #1, 4:49–52.


And the referenced section 6320 provides in subdivision (a) that: "The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or <mask> of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members."


3. Excessive Sentences Argument Having affirmed Grant’s convictions, we turn last to his claim that his sentences were excessive. [33] The first step in analyzing whether a sentence is exces- sive is to examine the statutory limits on penalties for such offenses. 56 But because Grant failed to include the ordinances at issue in the appellate record, they may not be consulted on appellate review and the information contained in the com- plaint must suffice. 57 According to the complaint, the maxi- mum penalties listed for <mask> are a “$500 fine” and “3 months jail.” The maximum penalties listed for assault State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021). See State v. Hill, supra note 30. - 720 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


In this country, every man may publish temperate investigations of the nature and forms of government, such matters are proper for public information ; but if such publication is seditiously, maliciously, and wilfully aimed at the independence of the United States, or the constitution thereof, or of any other State, the publisher would be guilty of a libel. Yates’ Rep. vol. 4. p. 270, 271. 2 Campb. 402. But care must be taken that this important privilege be not abused ; private character must not be wantonly assailed; even “ if one uses the wea- “ pons of truth wantonly, for <mask> of families, he is “ guilty of a libel.’’ Johns. Cases, vol. 2, p. 70. Yates’ Rep. vol. 4, p. 269.


Under section 213.5, subdivision (a), after "a petition has been filed ... to declare a child a dependent child of the juvenile court, and until the time that the petition is dismissed or dependency is terminated," a juvenile court may issue an order "enjoining any person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, ... destroying the personal property, contacting, ... or <mask> of the child ...." The subdivision also permits the court to issue orders including the child's parent as a person protected from the behaviors listed above.


this mediation may be verified outside of the mediation process and used as evidence in subsequent legal proceedings.” (Italics added.) The mediation agreement itself also specifically provides, immediately above the signature line, that “this written settlement may be disclosed in a court of law. Upon disclosure, this agreement may be admitted as evidence and/or enforced as determined to be appropriate by the court.” Thus, the parties’ agreements as a whole counsel against an expansive reading of the nondisparagement clause. Second, the mediation agreement is inextricably linked to the broader context in which it was negotiated — i.e., in a proceeding for a civil harassment restraining order. This context is critical. (See Civ. Code, § 1647 [“A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates.”]; id., § 1648 [“However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.”].) Such a proceeding is statutorily designed to narrowly focus on interpersonal conflict. Its purpose, when warranted by the circumstances, is to prevent threatened future injury through a resulting “order enjoining a party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls, as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or <mask> of, the petitioner.” (§ 527.6, subd. (b)(6)(A).) The narrow focus of these proceedings is communicated to petitioners through instructions issued by the Judicial Council.


19. Convictions: Ordinances: Judicial Notice: Complaints: Appeal and Error. Where an appellant assigns as error the insufficiency of the evi- dence to sustain a conviction under a municipal ordinance, an appellate court will not take judicial notice of a municipal ordinance not in the record, but, instead, may apply the ordinance’s text as reproduced in the State’s long-form complaint. 20. Ordinances: Complaints. Absent anything to the contrary, the language of a city ordinance as reproduced in the State’s long-form complaint is to be given its plain and ordinary meaning. 21. Constitutional Law. Where a law is content neutral on its face, the court must then determine the forum in which the speech takes place, as the government’s ability to regulate the time, place, and manner of speech varies according to the type of forum. 22. ____. Speech may take place in a traditional public forum, in a desig- nated public forum, in a nonpublic forum, or on private property. 23. ____. Traditional public forums are those places which are owned by the government and historically associated with expression, such as public streets, sidewalks, and parks, including those which run through residential neighborhoods, whereas designated public forums are those that have not been historically associated with expression but which the government has opened for such use, such as civic auditoriums or public theaters. 24. ____. Nonpublic forums include government-owned property that is not a traditional or designated public forum, such as government offices and military bases. 25. Property: Words and Phrases. Private property is property which is protected from public appropriation, over which the owner has exclusive and absolute rights. 26. Constitutional Law: Public Health and Welfare: <mask>. The police power of a state extends beyond health, morals, and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community, including the power to prevent disturbing noises. 27. Constitutional Law. The right to be let alone is one of the rights most valued by civilized society. The right to avoid unwelcome speech has special force in the privacy of the home and its immediate surroundings. 28. ____. In either a traditional or designated public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions (1) are content neutral as to both subject matter and viewpoint, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information. - 703 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


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 rul- ings on those issues de novo. 7 [7,8] 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 unten- able, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. 9 IV. ANALYSIS 1. Conviction for <mask> Grant assigns, first, that his conviction for disturbing the peace was in error because the speech underlying his convic- tion 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. [9,10] The 1st Amendment to the U.S. Constitution, appli- cable 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 sub- jects . . . .” 11 We have recognized that the “‘parameters of the constitutional right to freedom of speech are the same under See id. See, Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014); State v. Drahota, 280 Neb. 627, 788 N.W.2d 796 (2010). See State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021). Id. NIFLA v. Becerra, ___ U.S. ___, 138 S. Ct. 2361, 201 L. Ed. 2d 835 (2018). Neb. Const. art. I, § 5. - 709 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


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, “‘Yeah, I’d kill them [racial epithet], too. I’d kill him [Patterson], too.’” 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 kill- ing] 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 “this ain’t nothing new. He’d always sit on the porch and holler racial slurs, all the time, towards me, towards the neighbors, even towards people walk- ing down the street.” 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 admit- ted 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 dis- turbing the peace. Callese recalled being summoned again to the same loca- tion 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 <mask>. 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 - 707 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


In the present case before this court, proof has been submitted by the People that the Hilton Curfew Law was passed with a more specific governmental interest in mind — that is, to curb disturbances and vandalism caused by minors, and also to protect the children of the municipality. (See Hilton Village Code § 5-2.) As submitted in the affidavit of Village Manager Janet Surridge and the affirmation of Village Attorney Lawrence Schwind, it appears that the impetus behind the Hilton Curfew Law was an ongoing issue with minors <mask> and engaging in vandalism after dark. The Village Board received numerous complaints from village residents and reports from the Monroe County Sheriffs Department about minors in the village. In short, the aim of the Hilton Curfew Law was to curb specific behavior perpetrated by minors in particular. The proof offered in support of the Hilton Curfew Law is hardly scientific in nature, but as the United States Supreme Court has held, the Village need not prove the relationship between its curfew and its stated goals with scientific certainty. (See Ginsberg v New York, 390 US 629, 642-643 [1968].) In showing a substantial nexus between the burdens imposed by the Hilton Curfew Law and the goals of protecting minors and preventing juvenile crime, the Supreme Court has explained that although the government need not produce evidence of this relationship to a scientific certainty (see Ginsberg at 642-643), the “purpose of requiring [proof of] that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than mechanical application of traditional, often inaccurate, assumptions.” (City of Rochester, 13 NY3d at 48, quoting Mississippi Univ. for Women v Hogan, 458 US 718, 725-726 [1982].) The proof also offered to this court demonstrates that the Hilton Curfew Law was enacted in response to complaints about minors specifically and there is no question that “the population targeted by the [curfew] represents] that part of the population causing trouble.” (Id. at 49.)


According to the State’s complaint, “Count 1” defined Grant’s offense of “disturbing the peace” as “Intentionally or knowingly disturb the peace and quiet of any person, family, or neighborhood.” The prohibition against <mask>, as described by the State in its charging document, makes no reference to the content of speech and does not target particular speech on its face due to the content discussed or the viewpoint expressed. Instead, the rule is content neutral. We recognize that the State elicited and relied on evidence of the content of Grant’s speech at trial. Such evidence was unnecessary, however, to establish a violation under the lan- guage of the disturbing the peace charge in the complaint (i.e., “[i]ntentionally or knowingly disturb the peace and quiet of any person, family, or neighborhood . . .”). We also note that Grant registered no contemporaneous objection to the admis- sion of evidence regarding the content of his speech. [21] Where a law is content neutral on its face, the court must then determine the forum in which the speech takes place, as the government’s ability to regulate the time, place, and manner of speech varies according to the type of forum. 32 [22-25] Speech may take place in a traditional public forum, in a designated public forum, in a nonpublic forum, or on private property. 33 Traditional public forums are those places which are owned by the government and historically “‘have been devoted to assembly and debate,’” 34 “‘communicating thoughts between citizens, and discussing public questions.’” 35 Public streets, sidewalks, and parks fall into this category, including streets and sidewalks which run through residential See Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983). See Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). See id., 473 U.S. at 802. Perry Ed. Assn. v. Perry Local Educators’ Assn., supra note 32, 460 U.S. at 45. - 713 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


(b) Sentencing The presentence investigation (PSI) report considered by the court prior to sentencing was 400 pages. It showed as Blake’s adult criminal history a recent conviction in another case, case No. CR 18-846, for attempted first degree sexual assault, the conviction for assault in case No. CR 19-914 that was part of the plea bargain agreement, two prior convictions for third degree assault, and a conviction for <mask>. Blake had earned his diploma through the GED program and completed a “DBT skills program” while incarcerated. A review of misconduct reports showed Blake “routinely violates the rules.” Blake described himself as a “sex addict.” However, he denied having committed the attempted sexual assault for which he was being sentenced. The PSI report demonstrated that Blake has been diagnosed with adjustment disorder, adolescent antisocial behavior, mood disorder, “ADHD,” borderline intellectual functioning, post- traumatic stress disorder, schizophreniform disorder, and oppo- sitional defiant disorder. An evaluation completed in November 2019 showed Blake was in the “very high or high-risk range” to reoffend. The PSI report showed Blake had become a state ward at the age of 9. Blake reported he was physically abused by his father and had experienced sexual abuse in some of his out-of-home placements. Before his removal from his parents’ home, Blake “walked in on [his parents] having sex ‘all the time,’” because they did not lock their door and he did not have his own room. In his placements as a juvenile, Blake had a history of inappropriate sexual behavior toward younger peers. This - 778 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BLAKE Cite as 310 Neb. 769


On January 9, 2018, SFPD Officer MacMahon responded to 923 Market Street to investigate a report of a man making threats with a possible gun. Officer MacMahon ultimately arrested petitioner. Officer MacMahon performed an inventory search of petitioner's backpack, seizing 21.8 grams of marijuana and $574.21 in cash. On January 11, 2018, petitioner was charged by misdemeanor complaint with two counts of criminal threats ( Pen. Code, § 422 ) and one count of <mask> ( Pen. Code, § 415, subd. (3) ). These charges were dismissed pursuant to Penal Code section 1385 on March 7, 2018.


sentenced him to 10 days in jail for each conviction, the sen- tences 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 per- fected a timely appeal, and we moved his appeal to our docket. II. ASSIGNMENTS OF ERROR 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 <mask> was constitutionally protected, (2) there was insufficient evidence adduced at trial to support his convictions, and (3) his sentences were excessive. III. STANDARD OF REVIEW [1-3] 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 [4-6] 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 See State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021). Id. See id. See State v. Estrada Comacho, 309 Neb. 494, 960 N.W.2d 739 (2021). Id. - 708 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


*627In a brief argument, David states that Joannie's "reading and disclosure of David's private text messages was also abuse," that it was "<mask> under the" Act. The argument is based on Joannie's admitted reading through some 20 text messages, and her talking to her four close friends about them. The trial court found this was not harassment. Properly so.


In March 2017, appellant, who was then 15 years old, got into a fight on school grounds. A teacher stepped in to stop the fight. Appellant pushed the teacher away using a racial slur in the process. Appellant admitted <mask> on school grounds. The probation report reflected numerous past instances in which appellant displayed "defiant behavior," used aggressive or threatening language, refused to do work, or was disruptive in class. Appellant also admitted to using marijuana.


listed in Family Code section 6230, subdivision (a)(4)—provided that the events occurred within five years of the charged offense. Thus, encompassed within the meaning of “offense involving domestic violence” in section 1109 is an offense involving conduct constituting <mask> of the victim. Defendant misplaces reliance on People v. Zavala (2005) 130 Cal.App.4th 758 (Zavala). In Zavala, the defendant was charged with stalking and asserted that the trial court erred in instructing the jury on the use of prior violent acts evidence to prove that offense. (Id. at pp. 761, 770.) The defendant “note[d] that . . . .section 1109 is a limited exception to the general ban (under Evid. Code, § 1101) against using prior acts to infer the defendant’s disposition to commit the charged acts, and permits such evidence as the basis for such inference if the defendant is accused of a crime involving domestic violence within the meaning of section 13700.” (Id. at p. 770, italics added.) The defendant in Zavala further asserted that “to the extent the stalking offense does not require that the threat induced the victim to fear great bodily injury or death, stalking is concomitantly not a crime of domestic violence (as defined by [Penal Code] section 13700) and therefore the prior violent acts evidence may not be used by the jury to infer Zavala had a disposition the type of which made it likely he committed the stalking offense.” (Id. at pp. 770-771.) The Fourth Appellate District, Division One, without further analysis or explanation, “agree[d] it was error to give the [section 1109] instruction as to the count charging Zavala with stalking.” (Id. at p. 771.) Approximately five years later, the Second Appellate District, Division Six, decided People v. Ogle (2010) 185 Cal.App.4th 1138 (Ogle), upon which the Attorney General relies. The appellate court in Ogle declined to follow Zavala and essentially rejected the same arguments defendant makes here. In Ogle, the defendant asserted that his prior conviction for stalking should not have been admitted to prove his propensity to commit the charged criminal threats because stalking was not domestic violence within the meaning of section 1109. (Ogle,


In this context, <mask> means " 'conduct that destroys the mental or emotional calm of the other party.' [Citation.]" ( Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 401, 206 Cal.Rptr.3d 873.) Plainly, there was substantial evidence that father "disturbed the peace" of Bruno and Allison. Father hit mother when Bruno was two years old, and continued *641to abuse her three times a month thereafter. Five-year-old Bruno and two-year-old Allison were frequently present to witness the abuse. Bruno reported that the attacks scared him-a point the court stressed below. He yelled at his father to stop. Allison covered her ears. At one point, Bruno thought his unconscious mother was dead.


"For purposes of this section, a person has 'perpetrated domestic violence' when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or <mask> of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child's siblings." (§ 3044, subd. (c), emphasis added.)


Heavican, C.J. The appellant, Kenneth W. Grant, Jr., accused of shouting in a loud, menacing, and persistent manner from his apart- ment’s balcony at persons across the street, was convicted of <mask> 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 fight- ing 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.


The owner of land is not justified in killing domestic animals .found trespassing (Mathews v. Fiestel, 2 E. D. Smith, 90); but any person may kill a vicious dog permitted to run at large (Putnam v. Payne, 13 Johns, 312; Maxwell v. Palmerton, 21 Wend. 700; Dunlap v. Snyder, 17 Barb. 561); or a dog running at large who has lately been bitten by a mad dog (Putnam v. Payne, supra); or a dog in the habit of flying at persons in the public street (People v. Board of Police, 15 Abb. Pr. 167; 24 How. Pr. 481); or a dog on the land of the defendant killing fowl (Leonard v. Wilkins, 9 Johns. 233); or <mask> (Brill v. Flagler, 23 Wend. 354). If two dogs .are fighting and cannot be separated, the the one making the attack may be killed if necessary to separate them (Boecher v. Lutz, 20 Week. Dig. 484).


And the referenced section 6320 provides in subdivision (a) that: "The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or <mask> of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members."


The juvenile court's restraining order referenced Family Code section 6218, which in turn references Family Code section 6320. Section 6320 allows for an ex parte order "enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, ... harassing, telephoning, ... contacting ..., coming within a specified distance of, or <mask>," and Family Code section 6340 allows for the same order following a noticed hearing.


The officers began discussing whether they could arrest Wood for disorderly conduct and <mask>. One officer asked another “how long [they] [were] going to allow” Wood to keep talking. Johnson Cam, 4:00–03. That officer replied that “we could do disorderly conduct.” Id. at 4:02–06. Blair, catching up with Wood, turned and said to the officers that Wood was “disturbing my peace” and shouted, “Charge him!” Yates Cam #1, 4:20–22; Troutman Cam #1, 2:37–43. One officer asked the others what they should do, commenting that Wood was “talking the whole way out the door, he’s still talking.” Yates Cam #1, 4:40–50; Troutman Cam #1, 3:00–05. Another officer said, “Well, make an arrest,” to which another asked, “Make an arrest?” Yates Cam #1, 4:49–52.


Defendant contends that the "statutorily mandated imposition" on him of an "enhanced 40-year-to-life prison term for second degree murder as a passive aider-abettor, under a 'natural and probable consequences' theory of criminal liability, based on <mask>," which includes a 25-year-to-life vicarious gun discharge enhancement, "with no statutory discretion *751allowed to the trial court to consider [his] age or personal circumstances or passive and nonviolent criminal behavior in mitigation of the punishment, constituted excessive punishment and violated, as applied to him, [his] constitutional rights under the Eighth and Fourteenth Amendments and article I, section 17, of the California Constitution." He concludes "automatic reversal of the enhanced sentences imposed on Counts 1 through 3 is warranted." He requests this court to strike his section 12022.53, subdivisions (d) and (e)(1) gun enhancements and to reduce his sentence to 15 years to life.


* Before Levy, Acting P. J., Poochigian, J. and Peña, J. Letticia Baraona appeals the denial of her request for a restraining order under California’s Domestic Violence Prevention Act (DVPA; Fam. Code, §§ 6200–6460).1 The request was made to the superior court handling the dissolution of her marriage to Alexander Baraona. The court heard the parties’ testimony and argument and denied the request. The court stated it “does not feel there’s sufficient evidence for a domestic violence restraining order in this matter.” Letticia contends the superior court committed legal error by focusing on physical abuse and by failing to consider the nonphysical aspects of domestic violence as provided for in section 6320 and section 6203, subdivisions (a)(4) and (b). Under section 6320, a court may enjoin a party from harassing or “<mask> of the other party.” As explained below, it is difficult for an appellant to establish by inference that a court failed to consider a particular point or applied an incorrect legal standard. Here, Letticia has not overcome that difficulty and affirmatively demonstrated the court did not consider nonphysical types of abuse or otherwise misinterpreted the DVPA. Accordingly, she has not demonstrated reversible error. We therefore affirm the order denying the request for a restraining order. FACTS Letticia and Alexander were married in September 2017. Letticia had a son and a daughter from a previous relationship. In July 2018, Alexander moved to Visalia to start his new job as a sergeant at Corcoran State Prison. Previously, he had worked as a correctional officer at San Quentin State Prison. In August 2018, Letticia and her children arrived in Visalia. In June 2019, Letticia and Alexander separated. In July 2019, Alexander filed a petition for dissolution of marriage. The evidence relating to the grounds on which Letticia based her request for a domestic violence restraining order (DVRO) is not described in detail in this opinion


The fact that Rybolt did not allege an apprehension of future physical abuse as Riley argues is of no moment and does not mean that the court could not evaluate whether Rybolt's apprehension of future abuse was reasonable. Fear of physical abuse is not required to renew a restraining order. ( Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1464, 178 Cal.Rptr.3d 162 ["there is no requirement that the party requesting a renewal have a fear of physical abuse"].) The Act covers a myriad of conduct beyond mere physical abuse. Under section 6320, subdivision (a) for example, courts may enjoin stalking, *585threatening, harassing, telephoning, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or <mask> of the other party. The court could reasonably conclude that Riley's behavior, while not physically threatening, sufficiently disturbed Rybolt's peace and emotional well-being that her apprehension of such future abuse was reasonable.


3. Excessive Sentences Argument Having affirmed Grant’s convictions, we turn last to his claim that his sentences were excessive. [33] The first step in analyzing whether a sentence is exces- sive is to examine the statutory limits on penalties for such offenses. 56 But because Grant failed to include the ordinances at issue in the appellate record, they may not be consulted on appellate review and the information contained in the com- plaint must suffice. 57 According to the complaint, the maxi- mum penalties listed for <mask> are a “$500 fine” and “3 months jail.” The maximum penalties listed for assault State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021). See State v. Hill, supra note 30. - 720 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


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 rul- ings on those issues de novo. 7 [7,8] 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 unten- able, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. 9 IV. ANALYSIS 1. Conviction for <mask> Grant assigns, first, that his conviction for disturbing the peace was in error because the speech underlying his convic- tion 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. [9,10] The 1st Amendment to the U.S. Constitution, appli- cable 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 sub- jects . . . .” 11 We have recognized that the “‘parameters of the constitutional right to freedom of speech are the same under See id. See, Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014); State v. Drahota, 280 Neb. 627, 788 N.W.2d 796 (2010). See State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021). Id. NIFLA v. Becerra, ___ U.S. ___, 138 S. Ct. 2361, 201 L. Ed. 2d 835 (2018). Neb. Const. art. I, § 5. - 709 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


create an alternative forum for resolution of every dispute between such individuals.” Here, the trial court found that “not all name calling or yelling or accusations or disagreement are sufficient for a restraining order.” The court further found the evidence failed to show “anything beyond disputes and disagreements about what’s a proper way of engaging in the custody exchanges.” We will not reverse the trial court’s decision unless the trial court “ ‘ “ ‘exceeded the bounds of reason’ or it can ‘fairly be said’ that no judge would reasonably make the same order under the same circumstances.” ’ ” (Herriott v. Herriott (2019) 33 Cal.App.5th 212, 223.) “ ‘ “When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ ” (In re Marriage of G. (2017) 11 Cal.App.5th 773, 780.) Applying these principles to the record here, we cannot say no judge would reasonably have made the same decision denying Mother’s request for a restraining order. (See id. at p. 781 [affirming order denying request for restraining order where trial court’s findings of fact were supported by substantial evidence and trial court applied proper legal principles]; see also S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1265-1266 [father’s “badgering” conduct of mother during custodial dispute did not rise to the level of harassment or abuse to support the issuance of a restraining order]; K.L. v. R.H. (2021) 70 Cal.App.5th 965, 981 [offensive name-calling and failing to show up at custody exchanges demonstrated a lack of ability to communicate but did not reach the level of <mask> of the party seeking the restraining order].) Mother also argues the court applied the wrong legal standard in denying her request. She makes two arguments to support this claim. First, Mother argues the DVPA broadly defines “abuse” to include non-violent acts.


19. Convictions: Ordinances: Judicial Notice: Complaints: Appeal and Error. Where an appellant assigns as error the insufficiency of the evi- dence to sustain a conviction under a municipal ordinance, an appellate court will not take judicial notice of a municipal ordinance not in the record, but, instead, may apply the ordinance’s text as reproduced in the State’s long-form complaint. 20. Ordinances: Complaints. Absent anything to the contrary, the language of a city ordinance as reproduced in the State’s long-form complaint is to be given its plain and ordinary meaning. 21. Constitutional Law. Where a law is content neutral on its face, the court must then determine the forum in which the speech takes place, as the government’s ability to regulate the time, place, and manner of speech varies according to the type of forum. 22. ____. Speech may take place in a traditional public forum, in a desig- nated public forum, in a nonpublic forum, or on private property. 23. ____. Traditional public forums are those places which are owned by the government and historically associated with expression, such as public streets, sidewalks, and parks, including those which run through residential neighborhoods, whereas designated public forums are those that have not been historically associated with expression but which the government has opened for such use, such as civic auditoriums or public theaters. 24. ____. Nonpublic forums include government-owned property that is not a traditional or designated public forum, such as government offices and military bases. 25. Property: Words and Phrases. Private property is property which is protected from public appropriation, over which the owner has exclusive and absolute rights. 26. Constitutional Law: Public Health and Welfare: <mask>. The police power of a state extends beyond health, morals, and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community, including the power to prevent disturbing noises. 27. Constitutional Law. The right to be let alone is one of the rights most valued by civilized society. The right to avoid unwelcome speech has special force in the privacy of the home and its immediate surroundings. 28. ____. In either a traditional or designated public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions (1) are content neutral as to both subject matter and viewpoint, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information. - 703 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GRANT Cite as 310 Neb. 700


An elder who has suffered abuse may petition the superior court for an order "enjoining a party from abusing, intimidating, ... threatening, ... harassing, ... or <mask> of, the petitioner." (§ 15657.03, subds. (a)(1), (b)(4)(A).) The petitioner has the burden to prove a past act of elder abuse by preponderance of the evidence. ( Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1139-1140, 67 Cal.Rptr.3d 2 ( Bookout ).)


State’s evidence, and Grant’s presentence investigation report. According to Grant’s presentence investigation report, Grant was 50 years old at the time of sentencing and had a criminal history dating back to his youth, including convictions in 1996 for third degree assault and in 1987 for attempted burglary. Grant also had recent minor traffic offenses. He had dropped out of high school during the 11th grade, and then for about 2 years, he had been part of a criminal gang. Throughout his life, Grant had struggled to maintain steady employment and was currently unemployed. He reported maintaining few healthy relationships throughout his adulthood. After reviewing this evidence, the county court ordered 10 days in jail for each conviction, to run concurrently, noting that “any less sentence this Court would impose would depreciate the seriousness of the offense and promote disrespect for the law.” Despite Grant’s emphasis on his positive achievements, the record provides a sound basis for the sentences imposed. Accordingly, Grant’s convictions and resulting sentences were not in error. V. CONCLUSION For the reasons explained above, we affirm Grant’s con- victions for <mask> and for assault or menacing threats and find that the resulting sentences were not an abuse of discretion. Affirmed.


listed in Family Code section 6230, subdivision (a)(4)—provided that the events occurred within five years of the charged offense. Thus, encompassed within the meaning of “offense involving domestic violence” in section 1109 is an offense involving conduct constituting <mask> of the victim. Defendant misplaces reliance on People v. Zavala (2005) 130 Cal.App.4th 758 (Zavala). In Zavala, the defendant was charged with stalking and asserted that the trial court erred in instructing the jury on the use of prior violent acts evidence to prove that offense. (Id. at pp. 761, 770.) The defendant “note[d] that . . . .section 1109 is a limited exception to the general ban (under Evid. Code, § 1101) against using prior acts to infer the defendant’s disposition to commit the charged acts, and permits such evidence as the basis for such inference if the defendant is accused of a crime involving domestic violence within the meaning of section 13700.” (Id. at p. 770, italics added.) The defendant in Zavala further asserted that “to the extent the stalking offense does not require that the threat induced the victim to fear great bodily injury or death, stalking is concomitantly not a crime of domestic violence (as defined by [Penal Code] section 13700) and therefore the prior violent acts evidence may not be used by the jury to infer Zavala had a disposition the type of which made it likely he committed the stalking offense.” (Id. at pp. 770-771.) The Fourth Appellate District, Division One, without further analysis or explanation, “agree[d] it was error to give the [section 1109] instruction as to the count charging Zavala with stalking.” (Id. at p. 771.) Approximately five years later, the Second Appellate District, Division Six, decided People v. Ogle (2010) 185 Cal.App.4th 1138 (Ogle), upon which the Attorney General relies. The appellate court in Ogle declined to follow Zavala and essentially rejected the same arguments defendant makes here. In Ogle, the defendant asserted that his prior conviction for stalking should not have been admitted to prove his propensity to commit the charged criminal threats because stalking was not domestic violence within the meaning of section 1109. (Ogle,


Indisputably, the first two prongs of Lent are satisfied here. The electronic search condition bears no relationship to J.G.'s crime of <mask> on school grounds or his social history. And "the typical use of electronic devices and social media is not itself criminal." ( In re Erica R. , supra , 240 Cal.App.4th at p. 913, 192 Cal.Rptr.3d 919.)


"For purposes of this section, a person has 'perpetrated domestic violence' when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or <mask> of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child's siblings." (§ 3044, subd. (c), emphasis added.)