In re Interest of Elainna R. , 298 Neb. 436 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/02/2018 01:13 AM CST
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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    IN RE INTEREST OF ELAINNA R.
    Cite as 
    298 Neb. 436
    In   re I nterest of
    Elainna R., a child
    under18 years of age.
    State of Nebraska, appellee,
    v. Elainna R., appellant.
    ___ N.W.2d ___
    Filed December 15, 2017.   No. S-17-237.
    1.	 Juvenile Courts: Appeal and Error. An appellate court reviews juve-
    nile cases de novo on the record and reaches its conclusions indepen-
    dently of the juvenile court’s findings.
    2.	 Ordinances: Appeal and Error. Interpretation of a municipal ordinance
    is a question of law, on which an appellate court reaches an independent
    conclusion irrespective of the determination made by the court below.
    3.	 Ordinances. Absent anything to the contrary, the language of a city
    ordinance is to be given its plain and ordinary meaning.
    4.	 Statutes. Statutes relating to the same subject, although enacted at dif-
    ferent times, are in pari materia and should be construed together.
    5.	 Schools and School Districts: Disturbing the Peace. A school security
    officer or campus supervisor may be a victim of disturbing the peace.
    6.	 Evidence: Proof. A finder of fact may draw reasonable inferences from
    the facts and circumstances proved.
    Appeal from the Separate Juvenile Court of Lancaster
    County: Linda S. Porter, Judge. Affirmed.
    Joseph D. Nigro, Lancaster County Public Defender, and
    Brittani E. Lewit for appellant.
    Connor L. Reuter for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ., and Moore, Chief Judge.
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    IN RE INTEREST OF ELAINNA R.
    Cite as 
    298 Neb. 436
    Funke, J.
    The appellant, Elainna R., was adjudicated by the separate
    juvenile court of Lancaster County, under Neb. Rev. Stat.
    § 43-247(1) (Reissue 2016), for violating a Lincoln city ordi-
    nance prohibiting disturbing the peace. The juvenile court
    found proof beyond a reasonable doubt that Elainna knowingly
    or intentionally disturbed the peace of Sief Mahagoub, a high
    school security officer, by engaging in fighting. For the rea-
    sons discussed herein, we affirm.
    BACKGROUND
    On November 17, 2016, Elainna was attending Lincoln
    Southeast High School. On that day, she was involved in a
    fight with another student, A.L., in the hallway of the school.
    The named victim in this case, Mahagoub, is employed at the
    school as a campus supervisor and security officer and had
    been so employed for 4 years. His duties include maintaining
    safety and security on the school campus.
    About 1:17 p.m., Mahagoub observed the two students
    yelling at each other. Elainna then angrily ran toward A.L.
    while Mahagoub attempted to stop the fight before it became
    physical.
    Mahagoub yelled, “Stop, stop, stop,” in a loud, commanding
    voice and positioned himself between the students. Elainna,
    however, struck A.L.’s head and grabbed her hair. Mahagoub
    tried to separate the two, but Elainna maintained her grip on
    A.L.’s hair. Mahagoub continued to command Elainna to stop,
    and the three scuffled to the ground.
    Mahagoub again yelled, “Stop” and “Let go.” With the help
    of another adult, Mahagoub separated the students. The inci-
    dent lasted between 2 and 3 minutes.
    Mahagoub testified that altercations like this are very com-
    mon with students of that age, but said that this fight was
    disruptive to the workday. Mahagoub described the altercation
    as “very intense” and “very difficult” to stop. He described
    Elainna as the aggressor and observed her strike A.L. multiple
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    IN RE INTEREST OF ELAINNA R.
    Cite as 
    298 Neb. 436
    times. After the altercation, Mahagoub observed hair on the
    floor that was consistent with A.L.’s hair.
    Mahagoub stated he acted in accordance with his training,
    which instructed him to do as much as possible to prevent
    harm. On cross-examination, Mahagoub testified that he has
    trained as a military police officer and served three tours in
    Iraq. He further stated that the school provided him 2 full days
    of training for his role as a security officer and that he received
    specific training on how to deal with upset and aggressive
    students. He stated his job duties include breaking up fights
    between students.
    According to Mahagoub, he has dealt with many fights dur-
    ing his time as campus supervisor, including students who were
    verbally and physically aggressive toward him. He also testi-
    fied that he works with police officers in dealing with difficult
    students and occasionally assists law enforcement officers with
    investigations of criminal activity within the school.
    An associate principal at Lincoln Southeast High School
    testified he witnessed the later portion of the fight after it had
    progressed to the floor. He observed Elainna holding the other
    student’s hair and Mahagoub’s attempts to separate them. He
    testified that the altercation was disruptive to the schoolday.
    The juvenile petition alleged that “on or about the 17th day
    of November 2016, [Elainna] did knowingly or intentionally
    disturb the peace and quiet of . . . Mahagoub, by fighting, in
    violation of L.M.C. § 9.20.050.” Elainna entered a denial, and
    the matter proceeded to adjudication.
    At the conclusion of the adjudication, the court found the
    State had proved the allegations in the petition beyond a rea-
    sonable doubt. The juvenile court continued final disposition
    of the case pending the completion of a predisposition report.
    Elainna perfected an appeal to this court.
    ASSIGNMENTS OF ERROR
    Elainna assigns, restated, the following errors: (1) The juve-
    nile court erred in determining that Mahagoub’s peace was
    disturbed as a school security officer or campus supervisor,
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    IN RE INTEREST OF ELAINNA R.
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    and (2) the evidence was insufficient to sustain an adjudication
    of jurisdiction under § 43-247(1).
    STANDARD OF REVIEW
    [1] An appellate court reviews juvenile cases de novo on the
    record and reaches its conclusions independently of the juve-
    nile court’s findings.1
    [2] Interpretation of a municipal ordinance is a question of
    law, on which we reach an independent conclusion irrespective
    of the determination made by the court below.2
    ANALYSIS
    We first consider whether, as a matter of law, an individual
    who engages in fighting can disturb the peace of a school
    security officer or campus supervisor. If we determine a person
    can disturb the peace of such a school official by fighting, we
    must consider whether the evidence in the record before the
    juvenile court supports an adjudication under § 43-247(1).
    School Security Officer or
    Campus Supervisor M ay Be
    Victim of Disturbing Peace
    The relevant portion of Lincoln’s disturbing the peace ordi-
    nance, Lincoln Mun. Code § 9.20.050 (2013), is as follows:
    (a) It shall be unlawful for any person to intentionally
    or knowingly disturb the peace and quiet of any person,
    family, or neighborhood, or any public assembly, or
    assembly of persons for religious worship. The offense
    of disturbing the peace shall include, but shall not neces-
    sarily be limited to, the following:
    (1) Engaging in fighting.
    Under Neb. Rev. Stat. § 28-1322 (Reissue 2016), a person
    who intentionally disturbs the peace and quiet of any person,
    1
    In re Interest of LeVanta S., 
    295 Neb. 151
    , 
    887 N.W.2d 502
    (2016).
    2
    Landrum v. City of Omaha Planning Bd., 
    297 Neb. 165
    , 
    899 N.W.2d 598
          (2017).
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    IN RE INTEREST OF ELAINNA R.
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    family, or neighborhood commits the offense of disturbing the
    peace. Disturbing the peace, like the common-law offense of
    breach of the peace, is a violation of public order.3 The offense
    generally includes violent acts and acts and words likely to
    produce violence in others.4
    Elainna argues that Mahagoub is not a proper victim under
    Lincoln’s disturbing the peace ordinance and that she could
    not have disturbed his peace. Relying on decisions from other
    jurisdictions, she contends school safety officers, such as
    Mahagoub, should be treated the same as police officers,
    who she asserts have no expectation of peace and tranquility
    because of their training and duties.5
    In support of her argument, Elainna cites to several cases
    which stand for the proposition that the direction of “fighting
    words” toward a police officer does not amount to a disturb­
    ance of the peace.6 Elainna contends police officers frequently
    encounter offensive language and have been trained to dif-
    fuse such situations without physical retaliation, and therefore
    are not likely to act violently in response to offensive words
    or gestures.
    The State argues Elainna’s position is contrary to settled
    Nebraska law. To support its argument, the State relies on sev-
    eral Nebraska cases.7
    3
    State v. Broadstone, 
    233 Neb. 595
    , 
    447 N.W.2d 30
    (1989) (citing State v.
    Coomes, 
    170 Neb. 298
    , 
    102 N.W.2d 454
    (1960)).
    4
    Broadstone, supra note 3.
    5
    See, In re M.M., 
    54 Cal. 4th 530
    , 
    278 P.3d 1221
    , 
    142 Cal. Rptr. 869
          (2012); People v. Bowers, 
    77 Misc. 2d 697
    , 
    356 N.Y.S.2d 432
    (1974).
    6
    H.N.P. v. State, 
    854 So. 2d 630
    (Ala. Crim. App. 2003); People v. Slaton,
    
    24 Ill. App. 3d 1062
    , 
    322 N.E.2d 553
    (1974). See, also, Chaplinsky v. New
    Hampshire, 
    315 U.S. 568
    , 
    62 S. Ct. 766
    , 
    86 L. Ed. 1031
    (1942); State v.
    Drahota, 
    280 Neb. 627
    , 
    788 N.W.2d 796
    (2010).
    7
    State v. Moore, 
    226 Neb. 347
    , 
    411 N.W.2d 345
    (1987); State v. Groves,
    
    219 Neb. 382
    , 
    363 N.W.2d 507
    (1985); State v. Boss, 
    195 Neb. 467
    , 
    238 N.W.2d 639
    (1976).
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    IN RE INTEREST OF ELAINNA R.
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    In State v. Boss,8 we affirmed a conviction for abusing or
    resisting an officer in the execution of his office. In Boss, a
    police officer pulled over a speeding motorist and obtained
    his license and registration. During this process, the motor-
    ist called the officer a “‘dirty son-of-a-bitch.’”9 We found
    the words used by the motorist were “fighting words.”10 We
    specifically rejected authorities which held that such language
    cannot constitute “fighting words” when directed to a police
    officer, who is trained to accept such abuse without vio-
    lent reaction.11
    Similarly, in State v. Groves,12 we affirmed a conviction
    for disorderly conduct under a city of Omaha ordinance, and
    again specifically rejected the argument that a police officer
    is less susceptible to such abuse than other members of the
    general public.
    In State v. Moore,13 we affirmed a conviction for disturb-
    ing the peace under a Lincoln ordinance. In Moore, a Lincoln
    police officer responded to a complaint of a disturbance at a
    house. The officer encountered a loud house party and shined
    his cruiser’s spotlight on the front of the house, where indi-
    viduals were standing in the dark. The defendant ran up to the
    cruiser and yelled, “‘What the fuck are you doing here? You’ve
    got no business here. Get the fuck out of here.’”14 The officer
    testified that the defendant
    “continued to yell at me and I finished getting out of my
    cruiser and he was right up in my face. It was difficult
    to get out of my car, in fact. And I explained or tried to
    8
    Boss, supra note 7.
    9
    
    Id. at 469,
    238 N.W.2d at 642.
    10
    
    Id. at 471,
    238 N.W.2d at 643.
    11
    
    Id. 12 Groves,
    supra note 7.
    13
    Moore, supra note 7.
    14
    
    Id. at 348,
    411 N.W.2d at 347.
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    explain to the defendant that I was there on a disturbance
    call which seemed to even make him madder. . . .”15
    We affirmed the defendant’s conviction in Moore based on
    the totality of his conduct while in the officer’s presence.16
    Accordingly, it is clear that in Nebraska, a police officer may
    be the victim of disturbing the peace.
    [3,4] Absent anything to the contrary, this court will give
    the language of a city ordinance its plain and ordinary mean-
    ing.17 Statutes relating to the same subject, although enacted
    at different times, are in pari materia and should be con-
    strued together.18
    The applicable Lincoln ordinance states: “It shall be unlaw-
    ful for any person to intentionally or knowingly disturb the
    peace and quiet of any person . . . .”19 The Lincoln ordinance
    is broadly written and does not differentiate between public
    officials and the general public.
    In State v. McNair,20 for the purpose of analyzing a city of
    Omaha ordinance in a disturbance of lawful assembly case,
    we defined “disturb” to mean “‘[t]o throw into disorder or
    confusion; to interrupt the settled state of.’” Section 9.20.050
    of the Lincoln Municipal Code covers the same subject mat-
    ter as the ordinance in McNair. As a result, the definition of
    “disturb” from McNair equally applies to Lincoln Mun. Code
    § 9.20.050.
    [5] Assuming, without deciding, that Mahagoub’s role as
    a school security officer and campus supervisor is equivalent
    to a police officer for purposes of Lincoln’s disturbing the
    15
    
    Id. 16 Moore,
    supra note 7.
    17
    Brunken v. Board of Trustees, 
    261 Neb. 626
    , 
    624 N.W.2d 629
    (2001).
    18
    D.I. v. Gibson, 
    295 Neb. 903
    , 
    890 N.W.2d 506
    (2017); Northwest High
    School Dist. No. 82 v. Hessel, 
    210 Neb. 219
    , 
    313 N.W.2d 656
    (1981).
    19
    Lincoln Mun. Code § 9.20.050(a) (emphasis supplied).
    20
    State v. McNair, 
    178 Neb. 763
    , 766, 
    135 N.W.2d 463
    , 465 (1965).
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    IN RE INTEREST OF ELAINNA R.
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    peace ordinance, we hold that a school security officer or cam-
    pus supervisor may be a victim of disturbing the peace.
    Evidence Supports A djudication
    Under § 43-247(1)
    When an adjudication is based upon § 43-247(1), the allega-
    tions must be proved beyond a reasonable doubt.21
    Elainna argues there is no evidence that she used “fight-
    ing words” against Mahagoub. Upon our de novo review,
    we agree. But it does not follow that Elainna did not disturb
    Mahagoub’s peace. The State argues Elainna’s conduct went
    beyond words and included engaging in an actual fight which
    necessitated Mahagoub’s physical involvement.
    Indeed, the degree to which Elainna disturbed Mahagoub’s
    peace can be measured by her actions following his command
    to stop. Elainna passed through Mahagoub’s outstretched arm
    to hit A.L. in the head and grab her hair. As Mahagoub con-
    tinued to attempt to stop Elainna, Elainna further struck A.L.
    Elainna’s grip on A.L.’s hair was so forceful it brought both
    students and Mahagoub to the ground.
    As the juvenile court said in its factual findings,
    A campus supervisor, I think, does have some — part
    of their job is to keep the peace and regulate the safety of
    students, but a situation where a fight occurs, and there
    was evidence that Elainna was certainly an aggressor in
    that fight, that causes a school security officer to end up
    between youth and end up on the floor trying to prevent
    — trying to get one youth to release the hair of another
    youth and interrupt the fight, I think I can infer some dis-
    turbance of his peace.
    [6] A finder of fact may draw reasonable inferences from
    the facts and circumstances proved.22 Accordingly, we agree
    21
    In re Interest of Jeffrey K., 
    273 Neb. 239
    , 
    728 N.W.2d 606
    (2007); Neb.
    Rev. Stat. § 43-279(2) (Reissue 2016).
    22
    Jindra v. Clayton, 
    247 Neb. 597
    , 
    529 N.W.2d 523
    (1995). See, also, State
    v. Babbitt, 
    277 Neb. 327
    , 
    762 N.W.2d 58
    (2009).
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    IN RE INTEREST OF ELAINNA R.
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    with the reasoning of the juvenile court. Mahagoub described
    his efforts to prevent and stop the fight and how difficult it
    was during the 2- to 3-minute incident. This evidence estab-
    lishes that Elainna’s actions threw Mahagoub’s peace and
    quiet into disorder, confusion, interruption, or an unsettled
    state. We find the State has proved beyond a reasonable doubt
    that Elainna disturbed the peace of Mahagoub by engaging
    in fighting.
    CONCLUSION
    We conclude Mahagoub, a school security officer and cam-
    pus supervisor, may be an appropriate victim of disturbing the
    peace. Upon our de novo review, we independently find the
    evidence adduced sufficiently supports the juvenile court’s
    adjudication under § 43-247(1).
    A ffirmed.
    Wright, J., not participating.