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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. GRANT

Cite as 310 Neb. 700

State of Nebraska, appellee, v. 

Kenneth W. Grant, Jr., appellant.

___ N.W.2d ___

Filed January 14, 2022. No. S-20-915.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal 

case from the county court, the district court sits as an intermediate 

court of appeals.

2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error 

appearing on the record.

3. Judgments: Appeal and Error. 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.

4. Evidence: Appeal and Error. 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. Such matters 

are for the finder of fact.

5. Convictions: Evidence: Appeal and Error. Absent prejudicial error, a 

conviction will generally be affirmed so long as the evidence admitted 

at trial, viewed and construed most favorably to the State, is sufficient 

to support the elements of conviction beyond a reasonable doubt.

6. Constitutional Law: Judgments: Appeal and Error. Whether the 

conduct at issue was constitutionally protected is a question of law, and 

an appellate court will review the district court’s rulings on those issues 

de novo.

7. Sentences: Appeal and Error. Absent an abuse of discretion by the trial 

court, an appellate court will not disturb a sentence imposed within the 

statutory limits.

8. Judges: Words and Phrases. A judicial abuse of discretion exists 

only when the reasons or rulings of a trial judge are clearly untenable, 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/11/2022 01:06 AM CST
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unfairly depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition.

9. Constitutional Law. The parameters of the constitutional right to freedom of speech are the same under both the 1st Amendment to the U.S. 

Constitution, applicable to the states via the 14th Amendment, and the 

Nebraska Constitution.

10. Constitutional Law: Criminal Law. The parameters of the constitutional right to freedom of speech under the 1st Amendment to the U.S. 

Constitution, applicable to the states via the 14th Amendment, and the 

Nebraska Constitution both mean that government has no power to 

restrict expression because of its message, its ideas, its subject matter, 

or its content and limits the State’s ability to prosecute certain criminal 

offenses when such prosecution entails content control involving protected speech.

11. Constitutional Law. The broad protections afforded by the federal and 

state Constitutions are not absolute.

12. ____. The general rule against government control over the content of 

speech does not apply to certain well-defined and narrowly limited categories of expression. These speech categories are unprotected.

13. ____. Unprotected categories of speech are thought to form no essential 

part of any exposition of ideas, and are of such slight social value as a 

step to truth that any benefit that may be derived from them is clearly 

outweighed by the social interest in order and morality.

14. Constitutional Law: Criminal Law: Libel and Slander: Obscenity.

Categories of content that can be proscribed include libel, obscenity, 

incitements to imminent lawlessness, true threats, and fighting words.

15. Constitutional Law. The government may restrict protected speech 

through reasonable restrictions on the time, place, and manner of 

speech, and even a content-based restriction can be upheld if it satisfies 

the requisite standard of scrutiny.

16. Judgments: Appeal and Error. Where the record adequately demonstrates that the decision of a trial court is correct, although such correctness is based on a ground or reason different from that assigned by the 

trial court, an appellate court will affirm.

17. Constitutional Law. In order to bring a claim for violation of the federal or state constitutional guarantees of free speech, the alleged violation must involve state action. The free speech provisions of the federal 

and state Constitutions were not intended to guard against private interference or restrain private conduct.

18. ____. A regulation that serves purposes unrelated to the content of 

expression is deemed neutral, even if it has an incidental effect on some 

speakers or messages but not others.
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Cite as 310 Neb. 700

19. Convictions: Ordinances: Judicial Notice: Complaints: Appeal and 

Error. Where an appellant assigns as error the insufficiency of the evidence 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 designated 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: Disturbing the 

Peace. 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.
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29. Constitutional Law: Criminal Law: Ordinances: Public Health and 

Welfare. The requirement of narrow tailoring under the time, place, and 

manner test is satisfied so long as the ordinance promotes a substantial 

government interest that would be achieved less effectively absent the 

regulation, such as deterring conduct inimical to public health, decency, 

and order, or the tranquility of a neighborhood.

30. Constitutional Law: Ordinances. An ordinance restricting the volume 

of music has no effect on the quantity or content of that expression 

beyond regulating the extent of its amplification.

31. Criminal Law: Convictions: Evidence: Appeal and Error. 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.

32. Constitutional Law: Assault: Intent: Proof. Threats in a menacing 

manner, when reviewed separately from the crime of assault, render 

unlawful a promise of punishment, reprisal, or distress, coupled with a 

showing of intention to do harm.

33. Sentences. The first step in analyzing whether a sentence is excessive 

is to examine the statutory limits on penalties for such offenses. If the 

sentence imposed is within statutory limits, the second step is to review 

for an abuse of discretion.

34. Sentences: Appeal and Error. In reviewing whether an abuse of discretion occurred during sentencing, an appellate court determines whether 

the sentencing court considered and applied the well-established factors and any applicable legal principles in determining the sentence to 

be imposed.

35. Sentences. When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or 

record of law-abiding conduct, and (6) motivation for the offense, as 

well as (7) the nature of the offense, and (8) the amount of violence 

involved in the commission of the crime.

36. ____. The sentencing court is not limited to any mathematically applied 

set of factors, but the appropriateness of the sentence is necessarily a 

subjective judgment that includes the sentencing judge’s observations 

of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.

Appeal from the District Court for Lancaster County, Darla 

S. Ideus, Judge, on appeal thereto from the County Court 
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Cite as 310 Neb. 700

for Lancaster County, Laurie J. Yardley, Judge. Judgment of 

District Court affirmed.

Joe Nigro, Lancaster County Public Defender, and James 

Sieben for appellant.

Yohance L. Christie, Lincoln City Attorney, and Marcee A. 

Brownlee for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

The appellant, Kenneth W. Grant, Jr., accused of shouting 

in a loud, menacing, and persistent manner from his apartment’s balcony at persons across the street, was convicted of 

disturbing the peace and of assault or menacing threats, both 

in violation of city ordinances in Lincoln, Nebraska. He asks 

us to overturn those convictions and their resulting 10-day 

jail sentences.

We do not analyze whether Grant’s speech included fighting words or true threats, because even if Grant’s speech 

was protected, we conclude the State may regulate it through 

reasonable restrictions on the time, place, and manner of 

speech. Thus, we affirm Grant’s 10-day jail sentence for that 

conviction.

We find that Grant’s conviction for assault or menacing 

threats was supported by sufficient evidence. We also affirm 

that conviction.

I. BACKGROUND

Grant was charged with violating two provisions under the 

Lincoln Municipal Code, sections “9.12.010A” and “9.20.050.” 

The complaint alleged that Grant had “[i]ntentionally or knowingly disturb[ed] the peace and quiet of . . . Gregory Lee 

Patterson and Jennifer Sue Ponce” and that he had “[i]ntentionally or knowingly threaten[ed] [Ponce] in a menacing 
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manner, attempt[ed] to strike her, or place[d] . . . her in fear 

or apprehension of imminent bodily harm . . . .” Grant pled not 

guilty to both charges.

At a bench trial, the State called three witnesses, beginning with one of the alleged victims, Jennifer Sue Ponce. She 

averred that on the day in question, she had been working as a 

professional painter. While painting a house in Lincoln with a 

colleague, Ponce heard a man shouting from across the street. 

She identified that man in court as Grant. She said that Grant 

yelled “vulgar things” at them as he stood on an apartment 

balcony about 50 yards away. Grant said, for example, that 

they were “‘doing a shitty job[,] a half-ass job’” of painting, 

that they were “‘never . . . there early enough,’” that they 

“‘shouldn’t even [have] be[en] doing that kind of work,’” and 

that they “‘[didn’t] even know what [they were] doing.’”

Grant continued to shout in this manner for some period 

of time, between a “half an hour” and “an hour or so,” and 

his vulgarity increased with time. Specifically, he threatened 

to “‘put bullets in your boyfriends.’” And he also made lewd 

comments about Ponce’s body, yelling, “‘Nice’ . . . ‘ass,’” 

and “‘Your tits are hanging out.’” When asked whether she 

had felt threatened by Grant’s comments, Ponce offered mixed 

responses, answering “[y]es,” that she had felt threatened, but 

also clarifying that she had not been concerned for her safety, 

“just because he wasn’t coming across — he wasn’t off of his 

balcony. But, if he would’ve came off the balcony, probably, 

yes.” Ponce acknowledged that while Grant had threatened 

others, he had not directly threatened to shoot her or her colleague. Still, feeling “[v]iolated” and “disturbed,” and frustrated that her work was being interrupted, Ponce had called 

the police.

Gregory Lee Patterson, another alleged victim, testified 

next. A resident of the house neighboring the one Ponce had 

been painting, he spent portions of the day in question smoking cigarettes on his front porch. While there, Patterson heard 

the vulgar things Grant had “loud[ly]” said to Ponce and her 
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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 killing] had to be towards me.” However, Patterson acknowledged 

that “this ain’t the first time [Grant’s] said something about 

killing blacks and Mexicans”; “he was doing this all the time.” 

Patterson also recounted that “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 walking 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 admitted to calling Patterson a racial epithet and to telling Ponce 

that “he was going to . . . ‘light them up.’” Grant maintained, 

however, that such expression was protected by his “[F]irst 

[A]mendment right.” Unpersuaded, Callese cited him with disturbing the peace.

Callese recalled being summoned again to the same location a short time later because Grant’s shouting had apparently 

continued unabated. This time, Grant claimed that his yelling 

had not been directed at Ponce and Patterson, but, rather, that it 

had been directed into his phone at his sister. Callese refrained 

from citing Grant with a second count of disturbing the peace. 

Grant was officially charged on July 26, 2019, with one count 

of disturbing the peace and an additional count of assault or 

menacing threats.

Grant called no additional witnesses and offered no other 

evidence of his own. At the close of the State’s evidence, 

the county court for Lancaster County found Grant guilty of 

both counts alleged in the complaint. The county court then 
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sentenced him to 10 days in jail for each conviction, the sentences to run concurrently.

After sentencing, Grant perfected a timely appeal to the 

district court for Lancaster County. Sitting as an intermediate 

court of appellate review, that court affirmed. Grant again perfected a timely appeal, and we moved his appeal to our docket.

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 disturbing the 

peace 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 

1 See State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).

2 Id.

3 See id.

4 See State v. Estrada Comacho, 309 Neb. 494, 960 N.W.2d 739 (2021).

5 Id.
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beyond a reasonable doubt. 6 Whether the conduct at issue was 

constitutionally protected, however, is a question of law, and 

an appellate court will therefore review the district court’s rulings on those issues de novo. 7

[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 untenable, unfairly depriving a litigant of a substantial right and 

denying a just result in matters submitted for disposition. 9

IV. ANALYSIS

1. Conviction for Disturbing the Peace

Grant assigns, first, that his conviction for disturbing the 

peace was in error because the speech underlying his conviction was protected by U.S. Const. amend. I and Neb. Const. 

art. I, § 5. Grant argues that because his speech was protected, 

it could not be criminally proscribed. Grant does not claim his 

conviction for assault or menacing threats is unconstitutional; 

hence, we need not consider it in any constitutional analysis.

[9,10] The 1st Amendment to the U.S. Constitution, applicable to the states via the 14th Amendment, 10 provides in 

relevant part that “Congress shall make no law . . . abridging 

the freedom of speech . . . .” Similarly, under the Nebraska 

Constitution, “[e]very person may freely speak . . . on all subjects . . . .” 11 We have recognized that the “‘parameters of the 

constitutional right to freedom of speech are the same under 

6 See id.

7 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).

8 See State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021).

9 Id.

10 NIFLA v. Becerra, ___ U.S. ___, 138 S. Ct. 2361, 201 L. Ed. 2d 835 

(2018).

11 Neb. Const. art. I, § 5.
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both the federal and the state Constitutions.’” 12 Both mean 

that government has no power to restrict expression because of 

its message, its ideas, its subject matter, or its content. 13 And 

so, in effect, both limit the State’s ability to prosecute certain 

criminal offenses when such prosecution entails content control 

involving protected speech. 14

(a) Proscribable Speech

[11-14] The broad protections afforded by the federal and 

state Constitutions, however, are not absolute. 15 The general 

rule against government control over the content of speech 

does not apply to certain well-defined and narrowly limited categories of expression. 16 These speech categories are 

unprotected. 17 They are thought to form “no essential part of 

any exposition of ideas, and are of such slight social value 

as a step to truth that any benefit that may be derived from 

them is clearly outweighed by the social interest in order 

and morality.” 18 Categories of content that can be proscribed 

include libel, obscenity, incitements to imminent lawlessness, true threats, and fighting words. 19 The State asserts 

12 State ex rel. Bruning v. Gale, 284 Neb. 257, 272, 817 N.W.2d 768, 779 

(2012) (quoting State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 

347 (2006)).

13 See, Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S. Ct. 

1700, 152 L. Ed. 2d 771 (2002). Accord, Bolger v. Youngs Drug Products 

Corp., 463 U.S. 60, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983); Police 

Department of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 

2d 212 (1972). Cf. State ex rel. Bruning v. Gale, supra note 12.

14 See, NIFLA v. Becerra, supra note 10; State v. Drahota, supra note 7.

15 See, Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 

(2003); State v. Drahota, supra note 7.

16 See Virginia v. Black, supra note 15.

17 See State v. Drahota, supra note 7.

18 Id. at 633, 788 N.W.2d at 801 (quoting Chaplinsky v. New Hampshire, 315 

U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942)) (internal quotation marks 

omitted).

19 State v. Drahota, supra note 7.
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that Grant’s conviction should be upheld because the speech 

underlying his convictions were proscribable “threats and 

fighting words.” 20 For our analysis we assume, without deciding, that Grant’s speech was not proscribable under any of the 

enumerated categories and is protected by the federal and state 

Constitutions.

[15] However, it does not follow that speech which is not 

proscribable by one of these enumerated categories cannot 

be restricted. As will be discussed in further detail below, the 

government may restrict protected speech through reasonable 

restrictions on the time, place, and manner of speech, and even 

a content-based restriction can be upheld if it satisfies the requisite standard of scrutiny. 21

Neither the parties nor the county or district courts specifically addressed time, place, and manner restrictions or the levels of scrutiny for constitutional challenges. Accordingly, this 

court entered an order directing the parties to submit supplemental briefs, with any new content limited to the applicability 

of time, place, and manner restrictions in this case.

[16] We have held that “where the record adequately demonstrates that the decision of a trial court is correct, although such 

correctness is based on a ground or reason different from that 

assigned by the trial court, an appellate court will affirm.” 22

Thus, even where the county and district courts may have 

decided this issue based on the content of Grant’s speech, we 

are able to affirm his conviction if we find that his speech can 

be restricted by the State for reasons other than content.

(b) Restrictions of Time, Place, and Manner

[17] As a preliminary matter, in order to bring a claim for 

violation of the federal or state constitutional guarantees of 

20 Brief for appellee at 7.

21 See Reed v. Town of Gilbert, 576 U.S. 155, 135 S. Ct. 2218, 192 L. Ed. 2d 

236 (2015).

22 Jessen v. Malhotra, 266 Neb. 393, 396, 665 N.W.2d 586, 590 (2003) 

(citing Egan v. Stoler, 265 Neb. 1, 653 N.W.2d 855 (2002)).
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free speech, the alleged violation must involve state action. 23

The free speech provisions of the federal and state Constitutions 

were not intended to guard against private interference or 

restrain private conduct. 24 Because Grant’s convictions arise 

under an ordinance contained in the Lincoln Municipal Code, 

it is clear that his speech is being regulated by the government 

and that there is state action.

[18] Our next step is to analyze whether the regulation 

restricts speech based on its content. A regulation that serves 

purposes unrelated to the content of expression is deemed 

neutral, even if it has an incidental effect on some speakers 

or messages but not others. 25 Conversely, government regulation of speech is content based if a law applies to particular 

speech because of the topic discussed or the idea or message 

expressed. 26 For example, a law banning the use of sound 

trucks for political speech—and only political speech—would 

be a content-based regulation. 27

[19,20] Our analysis regarding the content of the ordinance 

would generally begin with the language of the ordinance that 

Grant was convicted of violating. 28 But where, as here, the 

defendant has failed to include the ordinance at issue in the 

record, we may not consider that ordinance’s text. 29 We may 

instead apply the ordinance’s text as reproduced in the State’s 

long-form complaint. 30 Absent anything to the contrary, we 

give that language its plain and ordinary meaning. 31

23 See Dossett v. First State Bank, 261 Neb. 959, 627 N.W.2d 131 (2001).

24 See id.

25 Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. 

2d 661 (1989).

26 Reed v. Town of Gilbert, supra note 21.

27 Id.

28 See In re Interest of Elainna R., 298 Neb. 436, 904 N.W.2d 689 (2017).

29 See State v. Buescher, 240 Neb. 908, 485 N.W.2d 192 (1992).

30 See State v. Hill, 254 Neb. 460, 577 N.W.2d 259 (1998).

31 Cf. In re Interest of Elainna R., supra note 28.
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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 disturbing the peace, 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 language 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 admission 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 

32 See Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 103 S. 

Ct. 948, 74 L. Ed. 2d 794 (1983).

33 See Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 105 S. 

Ct. 3439, 87 L. Ed. 2d 567 (1985).

34 See id., 473 U.S. at 802.

35 Perry Ed. Assn. v. Perry Local Educators’ Assn., supra note 32, 460 U.S. 

at 45.
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neighborhoods. 36 Designated public forums, on the other hand, 

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. 37 Nonpublic forums 

include government-owned property that is not a traditional or 

designated public forum, such as government offices and military bases. 38 Private property is property which is “protected 

from public appropriation[,] over which the owner has exclusive and absolute rights.” 39

[26,27] Grant contends that the government may not restrict 

his speech because it occurred on his private property. However, 

Grant’s speech became an issue not merely when he spoke 

from his own balcony, but because his speech could be heard 

on, and intruded into, the private property of others. 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. 40 The U.S. Supreme 

Court has repeatedly held that the “‘right to be let alone’” is 

one of the rights “‘most valued by civilized [society]’” and 

that the “right to avoid unwelcome speech has special force in 

the privacy of the home . . . and its immediate surroundings.” 41

Grant’s speech occurred not only on his own property, but was 

also broadcast at least “50 yards,” across public streets and 

sidewalks, and onto the private property of others. Here, it is 

most appropriate to analyze Grant’s speech as that occurring in 

a public forum.

36 Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 

(1988).

37 See Cornelius v. NAACP Legal Defense & Ed. Fund, supra note 33.

38 See Perry Ed. Assn. v. Perry Local Educators’ Assn., supra note 32.

39 Black’s Law Dictionary 1472 (11th ed. 2019).

40 See Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448, 93 L. Ed. 513 (1949).

41 Hill v. Colorado, 530 U.S. 703, 716, 717, 120 S. Ct. 2480, 147 L. Ed. 2d 

597 (2000).
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[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. 42 As explained above, the 

ordinance does not aim to restrict speech or other behavior 

based on content or viewpoint, and can be justified absent any 

reference to content of speech. Thus, the first element of this 

time, place, and manner test is satisfied.

(i) Narrowly Tailored to Significant 

Governmental Interest

[29] The second element of the time, place, and manner 

test, the narrow tailoring requirement, is satisfied so long as 

the ordinance promotes a substantial government interest that 

would be achieved less effectively absent the regulation, such 

as deterring conduct inimical to public health, decency, and 

order, or the tranquility of the neighborhood. 43 Ponce testified 

at trial that the homeowner whose residence she was painting had described Grant’s commentary as “not an uncommon 

thing” and that Ponce herself was “‘fine’” with these comments at first as she continued to work. Ponce only called the 

police after Grant’s commentary continued for such a long 

period of time that her work was disrupted.

Patterson also testified that Grant had been making similar comments “every day [Ponce] was there” painting the 

house and that Grant’s comments “[weren’t anything] new. 

He’d always sit on the porch and holler racial slurs, all the 

time, towards [Patterson], towards the neighbors, [and] even 

towards people walking down the street.” The ordinance, and 

42 See, e.g., Ward v. Rock Against Racism, supra note 25; City of Lincoln v. 

ABC Books, Inc., 238 Neb. 378, 470 N.W.2d 760 (1991).

43 See City of Lincoln v. ABC Books, Inc., supra note 42.
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its restrictions on Grant’s speech toward Ponce and Patterson, 

only came into play on this date because Grant’s commentary 

had been very loud and because it had carried on for such a 

long period of time that it disrupted others in the area. Based 

on these facts, it is clear that the city’s interest in deterring not 

only unlawful conduct, but conduct inimical to public decency 

and order, would not be achieved as effectively without this 

ordinance; and we have previously held that this is sufficient 

to satisfy the second element of the time, place, and manner test. 44

(ii) Ample Alternative Channels 

of Communication

The third element of the time, place, and manner test 

requires that the ordinance leave open ample alternative channels of communication for the speech that it restricts. We find 

no evidence in the record indicating that Grant was restricted 

from making this speech in all forms, but specifically that he 

could not continue “yelling.” Ponce testified that “after [the 

police] left, [Grant] continued to yell things.” Ponce was “not 

sure exactly what [Grant] was yelling,” but she called the 

police a second time because Grant “was on the phone, yelling 

at somebody, and then he hung up and he was yelling.” This 

yelling was continuing to disturb both Ponce and the homeowner of the residence she was painting.

[30] Based on the testimony offered at trial, it appears that 

Grant would have been free to communicate the same content 

in a number of different forms as long as it was communicated 

in a quieter manner. This limitation as to Grant’s volume level 

is similar to the facts in Ward v. Rock Against Racism,

 45 where 

an ordinance restricting the volume of music was found to 

have “no effect on the quantity or content of that expression 

beyond regulating the extent of amplification.” If Grant had 

44 See id.

45 Ward v. Rock Against Racism, supra note 25, 491 U.S. at 802.
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been communicating this same content without yelling loudly 

down the street, for a lengthy period of time, we find no evidence in the record that he would have been cited under this 

ordinance. Thus, the ordinance itself leaves open ample alternative channels of communication and satisfies the third prong 

of the time, place, and manner test.

We find all elements of the time, place, and manner test 

are satisfied, such that this ordinance as applied to Grant did 

not violate his right to free speech under the federal and state 

Constitutions. Accordingly, we affirm his conviction for disturbing the peace.

2. Conviction for Assault or 

Menacing Threats

Having determined that Grant’s conviction for disturbing 

the peace 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 

46 See State v. Estrada Comacho, supra note 4.

47 See In re Interest of Elainna R., supra note 28.

48 See State v. Buescher, supra note 29.
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State’s long-form complaint. 49 Absent anything to the contrary, 

we give that language its plain and ordinary meaning. 50

According to the State’s complaint, “Count 2” defined 

Grant’s offense of assault or menacing threats in this way:

Intentionally or knowingly threaten another in a menacing manner, attempt to strike her, or place him or her in 

fear or apprehension of imminent bodily harm, or intentionally, knowingly, or recklessly strike or cause bodily 

injury to her, to wit: Jennifer Sue Ponce; in violation of 

Lincoln Municipal Code Section 9.12.010.

(M $200-$500 fine, max 6 months jail - L.M.C. Section 

9.20.100)[.]

This court has previously examined the meaning of the 

words “assault,” “threaten,” and “menacing”:

A criminal “assault” includes the intentional doing 

of an act which places another person in reasonable 

apprehension of receiving bodily injury. To “threaten” is 

commonly understood to mean promising punishment, 

reprisal, or distress. The meaning of “menacing” includes 

the showing of an intention to do harm. 51

These three terms have typically been reviewed in conjunction 

with one another in order to better define what constitutes a 

threat for purposes of third degree assault. According to statute, 

a person commits the offense of assault in the third degree if 

he or she intentionally, knowingly, or recklessly causes bodily 

injury to another person or threatens another in a menacing manner. 52

Where § 28-310(1)(b) requires application of all three of the 

above terms, we held that § 28-310(1)(b) “‘renders unlawful 

a promise to do another person bodily harm which is made in 

49 See State v. Hill, supra note 30.

50 Cf. In re Interest of Elainna R., supra note 28.

51 State v. Kunath, 248 Neb. 1010, 1014, 540 N.W.2d 587, 591 (1995). 

Accord In re Interest of Siebert, 223 Neb. 454, 390 N.W.2d 522 (1986).

52 Neb. Rev. Stat. § 28-310(1)(b) (Reissue 2016).
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such a manner as to intentionally cause a reasonable person 

in the position of the one threatened to suffer apprehension of 

being so harmed.’” 53 Thus, this statute is violated when a person acts “‘in such a manner as to intentionally cause a reasonable person in the position of the one threatened to feel apprehension of being [bodily] harmed.’” 54 A fear of bodily harm 

or injury must be shown because all three terms, “assault,” 

“threaten,” and “menacing,” are applicable.

However, the complaint in this case specified that Grant was 

charged with assault or menacing threats. The charging language does not mirror the language set forth by § 28-310(1)(b), 

and thus, our analysis does not require application of all three 

terms in conjunction with one another. In contrast to § 28-310, 

where a defendant can commit assault by making menacing 

threats, the language of this complaint indicates that the term 

“assault” versus the term “menacing threats” can be analyzed 

as separate from one another. The charging language also supports this view, where it lays out alternative elements of proof: 

“[i]ntentionally or knowingly threaten another in a menacing 

manner” versus intentionally or knowingly “place him or her 

in fear or apprehension of imminent bodily harm.”

[32] Under this scheme, “[t]hreat[s] . . . in a menacing manner” is separated from those elements that have traditionally 

constituted the crime of assault. Thus, we are able to isolate the 

terms “threaten” and “menacing.” These two terms, as isolated, 

simply mean that the State must prove Grant has promised 

punishment, reprisal, or distress and that he had an intention 

to do harm. Unlike our analysis regarding § 28-310(1)(b), the 

language of this complaint “‘renders unlawful a promise to 

do another person bodily harm,’” 55 but does not require that 

the promise to do harm be made in any particular manner and 

53 State v. Kunath, supra note 51, 248 Neb. at 1014, 540 N.W.2d at 591 

(quoting In re Interest of Siebert, supra note 51).

54 See id.

55 See id.
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does not require an analysis of whether a reasonable person 

would feel threatened. That the speaker intended to do harm 

means the speaker must have intended, at a minimum, to cause 

distress to the recipient of the threatening words.

In reviewing the evidence admitted at trial, viewed and 

construed most favorably to the State, we find that Grant did 

threaten Ponce in a menacing manner. Grant told Ponce he 

would “‘put bullets in your boyfriend[],’” a promise of punishment, reprisal, or distress. The evidence adduced at trial also 

indicates that Grant made these comments to Ponce in order to 

cause her some form of mental distress: his commentary was 

provocative and explicit and became increasingly violent and 

specific as the day progressed. It is clear that Grant was trying 

to disrupt Ponce in her work and that he was trying to agitate 

her. And he succeeded, where Ponce testified that Grant’s 

continued commentary did cause her anxiety. Grant offered no 

alternative explanation.

Accordingly, the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the 

elements of assault or menacing threats beyond a reasonable 

doubt, and thus, we affirm Grant’s conviction.

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 excessive 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 complaint must suffice. 57 According to the complaint, the maximum penalties listed for disturbing the peace are a “$500 fine” 

and “3 months jail.” The maximum penalties listed for assault 

56 State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).

57 See State v. Hill, supra note 30.
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or menacing threats are a “$200-$500 fine” and “6 months 

jail.” Plainly, Grant’s sentence of 10 days in jail does not 

exceed these limits. Thus, if the sentence imposed is within 

statutory limits, the second step is to review for an abuse of 

discretion. 58

[34-36] In reviewing whether an abuse of discretion occurred 

during sentencing, an appellate court determines whether the 

sentencing court considered and applied the well-established 

factors and any applicable legal principles in determining 

the sentence to be imposed. 59 When imposing a sentence, a 

sentencing judge should consider the defendant’s (1) age, (2) 

mentality, (3) education and experience, (4) social and cultural 

background, (5) past criminal record or record of law-abiding 

conduct, and (6) motivation for the offense, as well as (7) the 

nature of the offense, and (8) the amount of violence involved 

in the commission of the crime. 60 The sentencing court is not 

limited to any mathematically applied set of factors, but the 

appropriateness of the sentence is necessarily a subjective 

judgment that includes the sentencing judge’s observations of 

the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. 61

Grant contends that his sentences were an abuse of discretion 

because in imposing the sentences, the county court “ignored” 

several important factors, including Grant’s request for only a 

fine or probation, his weekly attendance at church groups, his 

volunteerism at a homeless shelter, and his more than 20 years 

“without being convicted of a similar offense.” 62

At the sentencing hearing, Grant’s attorney offered much 

of this same evidence into the record. In determining Grant’s 

sentence, the county court considered that evidence, the 

58 See State v. Starks, supra note 56.

59 See State v. Greer, supra note 8.

60 See id.

61 Id.

62 Brief for appellant at 25.
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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 convictions for disturbing the peace and for assault or menacing 

threats and find that the resulting sentences were not an abuse 

of discretion.

Affirmed.