from the District Court for Douglas County: LEIGH ANN
C. Riley, Douglas County Public Defender, Cindy A. Tate, and
Korey T. Taylor for appellant.
J. Peterson, Attorney General, and Nathan A. Liss for
C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, STACY, and
Neb. 361] Cassel, J.
NATURE OF CASE
statute 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.
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. He was sentenced to 12 to
18 months in prison and given credit for 53 days of time
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 . . . .
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.
State's Case in Chief
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.
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.
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."
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
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.
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."
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.
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."
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
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
Motion for Directed Verdict
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."
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.
Duncan's Case in Chief and Renewed
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.
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.
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.
ASSIGNMENTS OF ERROR
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.
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.
Whether a jury instruction is correct is a question of law,
which an appellate court independently decides.
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,
Whether a claim of ineffective assistance of trial counsel
may be determined on direct appeal is a question of
law. 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
Neb. 368] V. ANALYSIS
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
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, 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 ...