                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                      STATE V. CALDWELL


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                               V.

                              MICHAEL A. CALDWELL, APPELLANT.


                             Filed January 9, 2018.   No. A-17-386.


        Appeal from the District Court for Sarpy County, GEORGE A. THOMPSON, Judge, on appeal
thereto from the County Court for Sarpy County, ROBERT C. WESTER, Judge. Judgment of District
Court affirmed.
       Joseph Kuehl and Steve Lefler, of Lefler, Kuehl and Burns, for appellant.
       Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.


       MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
       PIRTLE, Judge.
                                       INTRODUCTION
       Following a bench trial in the county court for Sarpy County, Michael A. Caldwell was
found guilty of disturbing the peace. Caldwell appeals the order of the district court for Sarpy
County which affirmed his conviction and sentence. He asserts that his actions were protected by
the constitutions of the United States and Nebraska and that the district court erred in affirming
the order of the county court. For the reasons that follow, we affirm.
                                        BACKGROUND
       On April 1, 2016, an amended criminal complaint was filed in the county court for Sarpy
County, charging Caldwell with five criminal counts; one count for stalking, one count for second
degree trespass, and three counts of disturbing the peace. The allegations in the complaint all



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related to Caldwell’s conduct toward and interactions with Jeffrey and Angela Mell, and his
conduct on or near the Mells’ residential property.
        In 2014, the City of Bellevue moved a “No Parking” sign on Chaput Drive near the
intersection with Bellevue Boulevard. Before the sign was moved, parking was prohibited for the
approximately 50 feet before the intersection. After the sign was moved, street parking was
allowed up to approximately 20 feet from the intersection.
        The residence on the corner of Chaput Drive and Bellevue Boulevard is owned and
inhabited by the Mell family. After the sign was moved, Caldwell became concerned that vehicles
parked outside of the Mell residence caused a visual obstruction for traffic in the intersection.
Caldwell lives approximately a quarter of a mile from the intersection and stated that from 2006
to the present, he passes the property, now owned by the Mells, between six and forty times per
day.
        In 2014, Caldwell began contacting the Bellevue Police Department, city zoning
enforcement, code enforcement, traffic enforcement, and the city council in an attempt to require
the Mells to park their vehicles further from the intersection. During this time period, Caldwell
photographed the Mells’ property and their vehicles, and had several personal confrontations with
the Mells. Caldwell called the police to have the officers check the Mells’ compliance with vehicle
license and registration requirements, he sought to have their mailbox moved, and he sought a
requirement for the Mells to put a sidewalk across their property.
        In November 2014, Caldwell had a personal confrontation with the Mell family. He called
police officers to the Mell residence to have them cited for improper parking. After Caldwell’s
complaints were investigated the responding officers suggested that the Mell family institute a
“ban and bar” letter barring Caldwell from their property. The Mell family signed the “ban and
bar” notice and Caldwell was served with the notice by Bellevue police officers. Caldwell
continued to videotape and photograph the Mells and their property over the ensuing months. His
conviction in this case, is based upon his conduct on May 31, 2015.
        Prior to trial, “Count 1: Stalking” was dismissed by the State. A bench trial was held on
April 4, 6, 7, and 18, 2016. Angela Mell, Caldwell, and Officer Greg Wiech, of the Bellevue Police
Department, testified regarding the events of May 31, 2015. Angela testified that she pulled into
her driveway, opened the back of her pickup truck and began to carry groceries into the house. She
saw Caldwell standing in the street with a video recorder in hand as she went into the house. He
was still there, with the camera when she returned to the pickup. She asked Caldwell to leave and
he responded that he did not have to, because he was not breaking the law. Angela said Caldwell
did a dance, like a jig, and she asked him to leave, for a second time. She stated that she would call
911 and he responded that she should go ahead and call, because he had already called 911 himself.
Angela testified that Caldwell’s conduct made her feel afraid because she was alone at her home.
Angela said Caldwell had a history of driving by her home, but said that on May 31, Caldwell’s
presence felt “more personal” because he made the effort to walk to her home and stand there
pointing the camera at her while she unloaded groceries.
        Caldwell testified that on May 31, 2015, he was taking photographs of the neighborhood
in an effort to contest an increase in tax valuations by documenting ways in which the
neighborhood did not conform to code. He said he took two photographs of Angela speaking to
the driver of a white pickup truck that was stopped on the street at the end of her driveway.


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Caldwell stated that he may have taken as many as five additional photographs of the Mell property
on that date, but he did not include Angela in those photographs. Caldwell did not discuss whether
he captured any video recordings.
        Caldwell testified that the driver of the white pickup truck called out to him, asking what
he was doing, and that Angela told the driver “He does this all the time. He’s not even supposed
to be here. He’s trespassing. We have a ban and bar.” Caldwell testified that Angela requested
Caldwell to “come over here,” but that he replied, “Please don’t talk to me.” Caldwell testified that
he remained in the public roadway and did not enter the Mell property during the exchange.
        Wiech testified that on May 31, 2015, he was dispatched to the Mell residence on a possible
ban and bar complaint. Wiech stated that the party who contacted the police was Caldwell. Wiech
spoke to Angela, who was upset, and after speaking to Angela, he contacted Caldwell at his home.
Caldwell spoke, at length, to Wiech about a “plethora of complaints”; improperly parked vehicles,
construction vehicles parked in front of a private home, and the associated line-of-sight issues at
the intersection by the Mell residence. Wiech testified that a ban and bar was in effect at the Mell
residence on May 31. Caldwell told Wiech that he was aware of the ban and bar, but that he had
not stepped onto the Mell property.
        On June 15, 2016, the county court found Caldwell guilty of disturbing the peace on May
31, 2015. He was acquitted of the remaining charges. On August 18, 2016, Caldwell was sentenced
to 15 months’ probation with minimal restrictions and fined $50. Caldwell’s probation primarily
required him to follow all laws, refrain from contact with the Mell family, and stay more than 25
yards from their property line. Caldwell appealed his conviction to the district court.
        The district court affirmed the judgment and sentence imposed by the county court.
Caldwell appeals the order of the district court.
                                   ASSIGNMENTS OF ERROR
        Caldwell asserts the trial court erred in finding him guilty of disturbing the peace, because
his actions were constitutionally protected. He asserts the State failed to present sufficient evidence
of his guilt and the district court erred in affirming the judgment. He also asserts the county court
imposed an excessive sentence and the district court erred in affirming his sentence.
                                    STANDARD OF REVIEW
        In an appeal of a criminal case from the county court, the district court acts as an
intermediate court of appeals, and its review is limited to an examination of the record for error or
abuse of discretion. State v. Todd, 296 Neb. 424, 894 N.W.2d 255 (2017). Both the district court
and a higher appellate court generally review appeals from the county court for error appearing on
the record. Id. 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. Id.
        In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, 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. State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016).




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                                           ANALYSIS
Sufficiency of Evidence.
        Caldwell asserts that the evidence is insufficient to support his conviction for disturbing
the peace, and the district court erred in affirming the trial court’s findings. Neb. Rev. Stat.
§ 28-1322 (Reissue 2016) provides: “Any person who shall intentionally disturb the peace and
quiet of any person, family, or neighborhood commits the offense of disturbing the peace.” 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. State v. Gonzales, supra.
        Caldwell argues there is “very little evidence and/or testimony that relates the events that
actually transpired on the date of May 31, 2015,” and there is a “lack of credence that can be
afforded the testimony of the alleged victim.” Thus, he argues, the State did not meet its burden of
proving its case beyond a reasonable doubt. Brief for appellant at 19. He argues that his actions
were carried out for the legitimate purpose of documenting the Mell family’s “violation of city,
state, and federal rules and regulations concerning public safety.” Id. at 20.
        Angela testified that on May 31, 2015, she was unloading groceries from her truck, which
was parked in her driveway. She testified that Caldwell trained his camera on her as she took
multiple trips from her car into her home. Mell testified that, given her family’s history with
Caldwell, she felt afraid that he was approaching her on foot and pointing a camera at her while
she was at home alone. Angela testified that she asked Caldwell to leave, and he refused. She told
him that she intended to call the police and he told her that he had already done so, and he “danced
a jig” stating that he did not have to leave because he was not breaking the law. This supports an
inference that his behavior was intended to disturb Angela’s peace.
        Caldwell argues that on May 31, 2015, he was documenting the placement of street-parked
vehicles from a respectful distance. However, the evidence shows that he was approaching Mell
while she was engaged in a task that was unrelated to his grievance, and her car was not parked on
the street in the area of his concern. Officer Wiech testified that Caldwell was aware of the “ban
& bar” notice, which prohibited him from entering the Mell property, but Caldwell believed he
was acting lawfully, as he had not entered the Mells’ property.
        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. The trial court
determined that the evidence supported a conviction for disturbing the peace and this determination
was affirmed by the district court. Viewing the evidence in the light most favorable to the
prosecution, we find the record supports a finding that Caldwell intentionally breached Angela’s
peace on May 31, 2015.
First Amendment.
       Caldwell argues on appeal that his conviction for disturbing the peace was contrary to the
First Amendment. He asserts his actions were protected by the constitutions of the United States
and Nebraska, and his actions were carried out for the legitimate purpose of documenting the




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violations of city, state, and federal rules and regulations concerning public safety. We find no
merit to this assertion.
        On appeal to the district court, Caldwell argued that the State cannot constitutionally
criminalize speech under § 28-1322 solely because it inflicts emotional injury, annoys, offends, or
angers another person. See State v. Drahota, 280 Neb. 627, 788 N.W.2d 796 (2010). He argued
that he had a legitimate purpose of seeking redress against the government, by addressing the
victim’s purported violations of city ordinances. Thus, he argued that the action of photographing
the Mell family on and about their property was protected free speech. The State argued that
Caldwell’s actions were directed toward private citizens and not in protest to any government
action. The district court agreed, stating that Caldwell’s actions, including photographing,
taunting, calling the police, and dancing, were directed toward a neighbor, and resulted in a
disturbance of the peace of the neighbor and the neighborhood. The court found Caldwell’s actions
were not constitutionally protected.
        The First Amendment provides, in relevant part, that “‘Congress shall make no law . . .
abridging the freedom of speech . . . .’” State v. Drahota, 280 Neb. at 632, 788 N.W.2d at 800-01,
quoting U.S. Const. amend. I. The First Amendment limits the State’s ability to prosecute certain
criminal offenses. State v. Drahota, supra. The First Amendment protects wide swaths of speech,
but its protections are not absolute. State v. Drahota, supra. Historically, the Supreme Court has
held that the First Amendment does not apply to certain categories of speech, including libel,
obscenity, incitements to imminent lawlessness, true threats, and fighting words. State v. Drahota,
supra.
        We conclude that Caldwell’s conviction was not prohibited by the First Amendment.
Unlike the conviction in State v. Drahota, Caldwell was not convicted on the basis of political
speech addressed toward the government or a government official. Rather, the record in the present
case makes it clear that the county court based its conclusion on Caldwell’s conduct that was
directed toward his neighbor, a private individual, on May 31, 2015. Caldwell was served with a
“ban and bar” notice and the Mell family posted “no trespassing signs” in their yard prior to the
incident. Caldwell’s right to express his disagreement with the city’s enforcement of parking
regulations does not extend to photographing, taunting, following, calling the police, and dancing
at the property line of an individual who has expressed her desire to be left alone.
        The Nebraska Supreme Court has specifically recognized that a conviction based on
conduct that accompanies what might otherwise be protected speech is permissible. State v.
McKee, 253 Neb. 100, 568 N.W.2d 559 (1997). Thus we find the district court did not err in finding
that Caldwell’s actions were not constitutionally protected.
Excessive Sentence.
       Caldwell asserts the sentence imposed was excessive. He was convicted for disturbing the
peace, a Class III misdemeanor, as defined by § 28-1322. Class III misdemeanors are punishable
by up to three months’ imprisonment, a $500 fine, or both. See § 28-106 (Reissue 2016). When a
court sentences an offender to probation, it shall attach such reasonable conditions as it deems
necessary or likely to insure that the offender will lead a law-abiding life. Neb. Rev. Stat.
§ 29-2262 (Reissue 2016). When a court has sentenced an offender to probation, the court shall
specify a term of such probation which shall be not more than 5 years upon conviction of a felony


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or second offense misdemeanor and 2 years upon conviction of a first offense misdemeanor. Neb.
Rev. Stat. § 29-2263 (Reissue 2016). Caldwell’s sentence of 15 months’ probation and fine of $50
fall within the statutory limits.
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015). When
imposing a sentence, the 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 violence involved in the commission of the offense. State v. Oldson, 293 Neb. 718, 884
N.W.2d 10 (2016). The sentencing court is not limited to any mathematically applied set of factors.
Id. The appropriateness of the sentence is necessarily a subjective judgment and includes the
sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life. Id.
        Caldwell argues that the court failed to consider the proper factors to impose a fair and
appropriate sentence. He argues:
        With respect to the Appellant, he is approximately 41 years old; he is highly educated; he
        is a war veteran who sustained a closed brain injury while serving in the Persian [G]ulf; he
        is married, and has 2 children; he has been diagnosed with Asperger’s, a form of autism;
        he has no prior criminal convictions, other than for minor traffic infractions; as it can be
        evidenced by the record, he abides by the law, as he frequently contacts the authorities with
        any issues he may have, and never takes matter into his own hands, aside from taking notes,
        and documenting, as was his motivation for his conduct on the date of the alleged offense;
        the nature of this offense is arguably benign, as no violence was involved in the
        Defendant’s conduct.

Brief for appellant at 21.
         Caldwell argues, “Leaving the appellant on probation, and ‘under the thumb’ of the alleged
victim will create further litigation.” Id. He argues that the court abused its discretion and imposed
an excessive and onerous sentence upon him, and the district court could have, and should have,
reduced his sentence to a fine.
         The record shows the county court received a presentence investigation report and
considered the history of the conflict between Caldwell and the Mell family. There is ample
evidence that the police department investigated Caldwell’s numerous reports of code and law
violations at the Mell property, and Caldwell continued to personally document and record the
happenings on and around the Mells’ property. Caldwell was found guilty of disturbing the peace
of Angela Mell and the county court did not err in tailoring Caldwell’s probation term to require
that he refrain from communicating with the Mell family and remain 25 yards from their property.
         The record does not indicate that the county court considered any inappropriate factors in
determining the sentence to be imposed. As a result, Caldwell cannot show the county court abused
its discretion, or that the district court erred in affirming the sentence imposed by the county court.
Placing Caldwell on probation does not put him “under the thumb” of the Mell family, and further
litigation will only result if he fails to abide by the terms of his probation by continuing to engage



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in the type of contact with the Mell family which led to this criminal case. This assignment of error
is without merit.
                                          CONCLUSION
       Upon our review, we find the district court did not err in affirming the conviction and
sentence imposed by the county court for Sarpy County.
                                                                                   AFFIRMED.




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