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State v. Duncan

Supreme Court of Nebraska

April 15, 2016

STATE OF NEBRASKA, APPELLEE,
v.
GREGORY S. DUNCAN, APPELLANT

          Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF, Judge.

         Thomas C. Riley, Douglas County Public Defender, Cindy A. Tate, and Korey T. Taylor for appellant.

         Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

         HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, STACY, and KELCH, JJ.

          OPINION

          [293 Neb. 361] Cassel, J.

         I. NATURE OF CASE

          A statute[1] enhances the penalty for third degree assault when it is committed because of the victim's association with [293 Neb. 362] a person of a certain sexual orientation. Gregory S. Duncan appeals from a conviction and sentence pursuant to this statute. There are two principal issues. We first consider whether the State introduced evidence sufficient to withstand Duncan's renewed motion for a directed verdict. It did. Second, we find no error in the district court's refusal of Duncan's requested jury instruction defining " sexual orientation." And finding no merit to Duncan's other assignments of excessive sentence and ineffective assistance of counsel, we affirm Duncan's conviction and sentence.

          II. BACKGROUND

         Duncan was convicted of third degree assault, discrimination based, for punching Ryan Langenegger outside a restaurant in Omaha, Nebraska. Third degree assault, discrimination based, is a Class IV felony punishable by a maximum of 5 years' imprisonment and a $10,000 fine.[2] He was sentenced to 12 to 18 months in prison and given credit for 53 days of time served.

         The statute that provides enhanced penalties for discrimination based offenses provides, in relevant part:

Any person who commits one or more of the following criminal offenses against a person or a person's property because of the person's . . . sexual orientation . . . or because of the person's association with a person of a certain . . . sexual orientation . . . shall be punished by the imposition of the next higher penalty classification than the penalty classification prescribed for the criminal offense, unless such criminal offense is already punishable as a Class IB felony or higher classification: . . . assault in the third degree, section 28-310 . . . .[3]

         At trial, Duncan admitted that he punched Langenegger but claimed that the punch was not motivated by Langenegger's [293 Neb. 363] association with a person of a certain sexual orientation. This is his direct appeal.

         1. State's Case in Chief

         The State presented testimony that before the assault, Langenegger attended a " drag show" at a " gay bar" with two friends, Joshua Foo and Jacob Gellinger. Langenegger is heterosexual, and Foo and Gellinger are homosexual. Langenegger was wearing a men's suit, Foo was wearing pants and a suit jacket over a women's sequined top, and Gellinger was wearing a dress, platform shoes, makeup, and a wig. Gellinger is a tall person, and the platform shoes made him appear around 6 feet 5 inches tall. When Gellinger is dressed in women's clothing, Gellinger " go[es] by Fendi Blu," which is an " alter ego" or " drag persona." Gellinger was generally identified as " Fendi Blu" at trial, and we do the same in this opinion.

         Around 2 a.m., Foo, Langenegger, and Fendi Blu left the bar together and went to a restaurant. Fendi Blu was intoxicated, but Foo and Langenegger were not. While they were sitting at the restaurant, Foo noticed a group of three men who were " kind of like joking" and " kept looking over at our table and things." Foo, Langenegger, and Fendi Blu did not know who the men were at the time, but they were later identified at trial as Duncan, Joseph Adriano, and Paul Larson. The men's behavior made Foo feel " uneasy being there at the moment," so he asked Langenegger and Fendi Blu to leave.

         While they waited for Langenegger to finish his food, Foo saw Adriano walk over to their table. Foo testified that Adriano looked over to his friends and said, " 'Should I, should I?'" Foo thought Adriano's tone " wasn't . . . very good," and he told Langenegger and Fendi Blu, " 'We need to go.'" Fendi Blu and Langenegger gathered their things, and as they were leaving, Foo heard the men laughing and calling out derogatory names as they walked away, including the word " 'fag.'" At trial, counsel for the State asked Foo [293 Neb. 364] whether " 'fag'" is " a derogatory word for homosexuals," and Foo responded, " Yes."

         Both groups exited the restaurant. Once outside, Foo helped put on Fendi Blu's shoes, and Duncan's group stopped in front of Foo's group. Foo testified that Adriano walked up to Fendi Blu, looked over at Duncan and Larson, and said, " 'Should I?'" as they laughed behind him. Duncan and Larson stood a few feet behind Adriano. Langenegger heard Adriano say, " 'Faggot,'" and Foo heard someone say the word " 'queer.'" Langenegger and Foo both testified that Fendi Blu then looked down and said, " 'I know. I'm just a boy in a dress,'" and Adriano responded, " 'Yeah, it's fucking disgusting.'"

         Langenegger then " tried to calm down the situation," saying, " 'Listen, we just want to go home,'" and Adriano responded, " 'Come on, you fucking pussy.'" Langenegger began to state again that they just wanted to go home, but before he could finish speaking, he was punched in the face by Duncan. Langenegger and Foo testified that Langenegger did not make any threatening gestures, raise his voice, or touch Adriano or anyone else during this exchange.

         After the punch, Duncan, Adriano, and Larson walked away, and Foo and Langenegger heard them laughing. Langenegger touched his face, and his hands came away covered with blood. He had " blood coming from his nose, in between his eyes, coming down his chin." Foo, Langenegger, and Fendi Blu proceeded to Langenegger's car, where Foo called the 911 emergency dispatch service and reported the incident. When the police arrived, Langenegger decided not to file a report because he " didn't think [Duncan, Adriano, and Larson] were going to get caught."

         After speaking with the police, Foo and Langenegger drove Fendi Blu home and then drove to Foo's house. Foo took a photograph of Langenegger " to kind of document, like, what happened," and he posted the photograph on his personal " Facebook" page. He hoped that by posting about the assault online, someone might identify the attacker.

          [293 Neb. 365] The police communicated with Foo and Langenegger after the photograph was posted. Langenegger made a formal report of the incident, and detectives identified Larson after obtaining his credit card information from the restaurant. Through Larson, detectives identified Duncan and Adriano. A detective testified that when he arrested Duncan, Duncan " did not seem to be [surprised] at all" that he was being arrested for a " hate crime."

         Adriano and Larson also testified during the State's case in chief. Adriano testified that he remembers drinking at several bars that night, but that he does not remember leaving the bars or anything that occurred at the restaurant because he had a " blackout" from drinking. He said that he does not recall using the word " faggot" and that he does not use that word because he has close friends and family friends who are homosexuals. He also testified that he was not aware until later that anyone was assaulted.

         Larson testified that when they exited the restaurant, he and Duncan were a few feet behind Adriano, and that he observed Adriano and Langenegger talking to each other, but could not hear what they were saying. After Duncan punched Langenegger, Larson saw Langenegger fall and get back up, and he also saw Adriano fall or stumble, but he did not see Langenegger touch Adriano.

         2. Motion for Directed Verdict

         After this evidence was adduced, the State rested and Duncan moved for a directed verdict of acquittal on the charge of discrimination-based assault. He argued that the State had not met its burden " to show that there was some evidence that [Duncan] specifically targeted or selected [Langenegger] as a result or because he was associated with -- he was associated with the gay people in this crowd."

         The court stated that it had researched the interpretation of " 'because of'" in other jurisdictions and discovered that they take one of three approaches. It said that some jurisdictions hold that sexual orientation must be the " sole reason" for the [293 Neb. 366] assault, some jurisdictions apply a " 'but-for' test," and others have stated that the victim must have been " selected substantially because of [his or her] association with a particular sexual orientation." The court concluded that a Nebraska court " would probably be in line with the substantial factor case law." And it overruled Duncan's motion, explaining that although the State had not presented direct evidence of Duncan's making outward slurs, the testimony presented was sufficient to support an inference of a discriminatory motive.

         3. Duncan's Case in Chief and Renewed Motion

         Duncan's case in chief consisted of his own testimony. He testified that Langenegger pushed Adriano and that he punched Langenegger to defend Adriano. He said he did not know or consider the sexual orientation of Langenegger or anyone else that night. He admitted that he was an arm's length away when Adriano was face-to-face with Langenegger, but he claimed that he did not hear what they said to one another.

         Duncan also testified that he did not notice Foo's group or stare at them and that he had no idea that any homosexual people were in Foo's group. He did not hear Adriano make any slurs against homosexual people, and he does not remember seeing a man dressed as a woman in the restaurant.

         After Duncan testified, he renewed his motion for a directed verdict of acquittal. He argued again that the evidence did not establish that he targeted Langenegger because of his association with people of a certain sexual orientation. The court overruled the motion.

         III. ASSIGNMENTS OF ERROR

         Duncan assigns, restated and consolidated, that the district court erred in (1) overruling his motions for a directed verdict, (2) denying his requested jury instruction, and (3) imposing an excessively harsh sentence. He also claims that he received ineffective assistance of counsel.

         [293 Neb. 367] IV. TANDARD OF REVIEW

          Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.[4]

          Whether a jury instruction is correct is a question of law, which an appellate court independently decides.[5]

          An appellate court reviews criminal sentences for abuse of discretion, which occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.[6]

          Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law.[7] In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed facts contained within the record sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance?[8]

          [293 Neb. 368] V. ANALYSIS

         1. Directed Verdict

         (a) Waiver

         Duncan assigns that the district court erred in overruling both his motion for a directed verdict and his renewed motion for a directed verdict. In his assignments related to his motion for a directed verdict, he argues that the court misinterpreted the phrase " because of" in the enhancement statute and that it should have found that the State presented insufficient evidence to support a conviction under that statute. In his assignment related to his renewed motion, he argues again that the State presented insufficient evidence to support his conviction under the enhancement statute.

          The State responds that Duncan waived any right to challenge the district court's ruling on either motion because he proceeded with the trial and presented evidence. In support of its position, it cites State v. Seberger,[9] where we stated the well-established rule that in a criminal trial, after a court overrules a defendant's motion for a dismissal or a directed verdict, the defendant waives any right to challenge the trial court's ruling if the ...


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