In Re Interest of Siebert

390 N.W.2d 522, 223 Neb. 454, 1986 Neb. LEXIS 1105

• Court: Nebraska Supreme Court
• Decided: July 18, 1986
• Docket: 85-795
• Status: Published

Opinions

Caporale, J.

The State instituted this proceeding to have Rory A. Siebert declared subject to the juvenile court’s jurisdiction as a delinquent under the provisions of Neb. Rev. Stat. § 43-247(1) (Reissue 1984), alleging that Siebert was under 16 years of age and had committed “an infraction under the laws of this state.” Specifically, the State claimed that Siebert had violated Neb. Rev. Stat. § 28-310(l)(b) (Reissue 1985), which provides that one commits a third degree assault if he “[tjhreatens another in a menacing manner.” Siebert challenged the constitutionality of § 28-310(l)(b), claiming it to be both overbroad and vague. The juvenile court ruled that the statute is unconstitutionally vague and dismissed the proceeding. The State took exception to the ruling and, pursuant to leave, has appealed under the provisions of Neb. Rev. Stat. § 29-2315.01 (Reissue 1985). We sustain the State’s exception and remand the cause for further proceedings.

The parties have stipulated that if the State’s witness, Rod Dietrich, were to testify, he would say that Siebert and a companion came onto the grounds of a Lincoln school where Dietrich taught and that Siebert interfered with the play of other children. Dietrich therefore ordered Siebert and his companion to leave the playground. Dietrich then grabbed the companion’s bicycle and again told the boys to leave. Thereupon, Siebert got off his bicycle, threatened to strike Dietrich with his fist, and simulated karatelike motions, saying he would hurt Dietrich if he did not leave Siebert and his companion alone.

It was further stipulated that if Siebert were to testify, he would say that he had entered the playground with the permission of another teacher and “playfully chased a young person he knew.” He and his companion were then ordered to come behind a backstop or leave, and after further discussion were ordered by Dietrich to depart. As the boys were protesting, Dietrich grabbed the companion’s bicycle and ordered them to leave, but refused to let go of the bicycle. Dietrich then pushed the companion off his bicycle and continued to hold it, in spite of the fact that the boys said they would leave if Dietrich would return the bicycle. After more discussion Siebert got off his bicycle and simulated a karate kick, “intending only to convince Rod Dietrich to return the bicycle to [his companion] so they could leave the area.”

It is first necessary that we determine exactly what it is that § 28-310(l)(b) proscribes. Thus, we need to establish the meaning of the words “assault,” “threaten,” and “menacing.”

“Assault” is understood in the criminal law to include the intentional doing of an act which places another person in reasonable apprehension of receiving bodily injury. See, State v. Packett, 206 Neb. 548, 294 N.W.2d 605 (1980); State v. Machmuller, 196 Neb. 734, 246 N.W.2d 69 (1976).

To “threaten” is commonly understood to mean promising punishment, reprisal, or distress. Webster’s Third New International Dictionary, Unabridged 2382 (1981).

The meaning of “menacing” commonly includes the showing of an intention to do harm. Webster’s Third New International Dictionary, Unabridged 1409 (1981).

Thus, § 28-310(l)(b) renders unlawful a promise to do another person bodily harm which is made in such a manner as to intentionally cause a reasonable person in the position of the one threatened to suffer apprehension of being so harmed.

In upholding a statute regulating the political activities of state employees, the U.S. Supreme Court, in Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973), observed that where conduct and not merely speech is involved, the overbreadth of a statute must be judged in relation to its plainly legitimate sweep. In State v. Guy, 196 Neb. 308, 242 N.W.2d 864 (1976), we held that refusing to heed the presiding officer, preventing the taking of a vote, and resisting the sergeant-at-arms, accompanied by a raised voice, violated an ordinance against purposely or knowingly disturbing or disrupting a lawful meeting. We recently held in State v. Groves, 219 Neb. 382, 363 N.W.2d 507 (1985), that “fighting words” are not protected by the free speech clause of the first amendment to the U.S. Constitution. Therefore, to suggest that the menacing conduct prohibited by § 28-310(l)(b) is protected by that amendment is untenable. Further, we conclude the guarantee that every “person may freely speak ... being responsible for the abuse of that liberty..., ” contained in article I, § 5, of this state’s Constitution, does not provide any greater protection in this regard than does the first amendment to the U.S. Constitution.

Since § 28-310(l)(b) is not overbroad, for it does not reach a substantial amount of constitutionally protected conduct, the question which remains is whether § 28-310(l)(b) is impermissibly vague. State v. Sinica, 220 Neb. 792, 372 N.W.2d 445 (1985).

In arguing that the statute is so vague, Siebert reminds us that we recently, in State v. Hamilton, 215 Neb. 694, 340 N.W.2d 397 (1983), declared Neb. Rev. Stat. § 28-31 l(l)(a) (Reissue 1985) to be such. That statute provided that threatening to commit any crime “likely to result in death or serious physical injury to another person or likely to result in substantial property damage to another person” constituted a punishable terroristic threat. The underlying rationale of Hamilton is that the statute left uncertain both what constituted a threat and what constituted the likely result required. Accordingly, § 28-31 l(l)(a) violated the rule that the language of a criminal statute may not be so vague as to leave to conjecture the dividing line between that which is lawful and that which is unlawful. Stated another way, Hamilton holds that the definition of a crime must be of sufficient definiteness as to provide ascertainable standards of guilt such as to inform those subject thereto of the conduct which will render them liable to punishment thereunder.

Siebert’s conduct, by his own version of the facts, falls squarely within the prohibition of § 28-310(l)(b). The simulated karate kick directed toward Dietrich was conduct such as to place a reasonable person in Dietrich’s position in apprehension of being bodily harmed. Siebert’s statement that it was his intention to convince Dietrich to return the bicycle fulfills the requirement that the threat be made with the intention that a reasonable person in Dietrich’s position be placed in apprehension of bodily harm.

Since Siebert’s conduct comes within the prohibition of § 28-310(l)(b), and since the statute is not overbroad, we need not speculate as to whether the act might be vague in the context of someone else’s conduct. That is so, for one whose actions are clearly proscribed by a statute which does not reach a substantial amount of constitutionally protected conduct cannot complain of its vagueness as applied to the actions of others. State v. Sinica, supra.

The State’s exception is sustained and the cause remanded for further proceedings.

Exception sustained and cause remanded FOR FURTHER PROCEEDINGS.