STATE v. DOYLENo. A-09-712.
787 N.W.2d 254 (2010)
18 Neb. App. 495
STATE of Nebraska, appellee,
Patrick O. DOYLE II, appellant.
Patrick O. DOYLE II, appellant.
Court of Appeals of Nebraska.
July 27, 2010.
Charles R. Maser, of Truell, Murray & Maser, for appellant. Jon Bruning, Attorney General, and George R. Love for appellee.
MOORE and CASSEL, Judges.
Patrick O. Doyle II appeals from his conviction and sentence for intentionally violating the "no contact" prohibition of a domestic abuse protection order obtained by Doyle's wife. Upon being admitted to a hospital, he surreptitiously requested a
On August 30, 2007, the district court for Lincoln County, Nebraska, entered a domestic abuse protection order against Doyle at the request of Linda Doyle (Linda), his wife. Among other provisions, the order prohibited Doyle from "threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of [Linda]" and from "telephoning, contacting, or otherwise communicating with [Linda]" for a period of 1 year. A copy of the protection order was personally served upon Doyle by a deputy sheriff on the same date.
Viewed in the light most favorable to the State, the evidence shows that on February 14, 2008, Doyle was escorted to a hospital in Lexington, Nebraska, by two law enforcement officers. Misty Johnson, a licensed practical nurse on duty at the hospital, gathered the "admission paperwork" and, during her initial contact with Doyle, inquired if he wanted anyone "contacted" on his behalf. When Johnson asked Doyle this question, law enforcement officers were in the room with him and he responded "no." When Johnson needed to perform a physical examination of Doyle, she explained to the law enforcement officials what she was going to do and they left the room. Only seconds after the door was shut, Doyle told Johnson, "I want you to call my wife" or "[p]lease call my wife." Doyle provided Johnson with his wife's name and a telephone number.
After Johnson completed the examination, she left the room and called the number Doyle had specified. Johnson asked if it was Linda, and the person answering said "yes." Johnson identified herself and stated that she was an employee of the hospital and that "[Doyle] had asked [Johnson] to call." Linda did not immediately respond. Johnson then asked if Doyle was her husband, and she "kind of got kind of a yeah, a really slow response." Johnson then stated that Doyle had been admitted to the hospital for abdominal pain, but that he was "okay." Linda responded "okay" and then ended the call without asking any questions of Johnson or making any inquiries about Doyle.
Johnson testified that Doyle was obviously in pain but that he was alert, oriented, and could answer questions asked of him. Johnson had not administered any narcotics to Doyle or observed any other health care workers doing so. At the time, Johnson obtained a complete medical history from Doyle and he gave consent for medical treatment. According to Johnson, Doyle appeared coherent. Johnson testified that Doyle never gave a specific purpose for the call to Linda and never stated that he needed insurance information from her.
Linda testified that she experienced marital problems with Doyle, separated from him in September 2006, and obtained a protection order against him at approximately that same time. In August 2007, she obtained another protection order against him—the one he was convicted of violating in the instant case. Linda testified that on February 14, 2008, Doyle had a father and siblings, but that his mother was no longer living. Linda knew that on that date, Doyle was residing in the jail in Lexington. Approximately 1 day after Linda left Doyle, she obtained a cellular telephone with a number she believed was unknown to Doyle, "so he could not contact [her]." Linda did not give the number to
The State charged Doyle with violation of a protection order, second offense, pursuant to Neb.Rev.Stat. § 42-924(1) (Reissue 2008). Although Doyle's motion to quash is not in the record, the bill of exceptions shows that on October 6, 2008, the district court heard argument on the motion. At the hearing, Doyle argued that the protection order restricted his freedom of speech and freedom of religion, in violation of both the U.S. Constitution and the Nebraska Constitution. The court overruled the motion at some unknown time and on April 28, 2009, memorialized the earlier denial of the motion. On November 3, 2008, Doyle entered a plea of not guilty, and the case was tried to a jury on May 5, 2009.
At the conclusion of the State's case, Doyle moved for a directed verdict. The court overruled the motion. Doyle rested without presenting any additional evidence, and the jury returned a unanimous verdict finding Doyle guilty. After later determining that Doyle had previously been convicted of violation of a protection order and, thus, that the instant conviction was a second offense, the court sentenced Doyle to 1½ to 3 years' imprisonment, with credit for 486 days served in jail awaiting trial and sentencing, and to pay the costs of the action.
Doyle timely appeals.
ASSIGNMENTS OF ERROR
Doyle makes two assignments of error. First, he claims the district court erred in denying his motion for a directed verdict on the basis of insufficient evidence. Second, he asserts the court erred in overruling his motion to quash, claiming that the speech was protected under the U.S. Constitution and the Nebraska Constitution.
STANDARD OF REVIEW
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. Hudson,
Sufficiency of Evidence.
In order to prove a violation of § 42-924, the State must prove only three elements: (1) entry of the protection order pursuant to subsection (1) or (2) of that section, (2) service of the order on the defendant, and (3) knowing violation of the order. State v. Rubek,
Doyle admits that he "requested ... that the nurse contact his wife," but argues that his actions did not intimidate, harass, or frighten Linda. Brief for appellant at 7. However, Linda testified that as a result of the call, she was "shaken, scared, [and] physically sick." Doyle attacks Linda's credibility, citing her delay in calling the police until after her shift ended. But, as we noted above, this court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence.
Doyle also argues that he "just wanted to get the message to his children that he was in the hospital and there was no need to worry." Brief for appellant at 7. As the State correctly responds, the protection order prohibited Doyle from telephoning, contacting, or otherwise communicating with Linda. Doyle's brief admits that he did so but attempts to justify the conduct. However, the order provides no exception for the circumstances in the instant case. The evidence was sufficient to establish a knowing violation of the order.
Free Speech Claim.
Doyle argues that the speech at issue is constitutionally protected because it was informational only. The First Amendment has never been treated as an absolute. See Breard v. Alexandria,
Doyle does not argue that § 42-924 is unconstitutional; rather, he asserts that the statute cannot be constitutionally applied to his speech, which he characterizes as merely communicating medical information to his wife. The Nebraska Court of Appeals cannot determine the constitutionality of a statute, yet when necessary to a decision in the case before it, the court does have jurisdiction to determine whether a constitutional question has been properly raised. Clark v. Tyrrell,
Doyle relies solely on State v. McKee,
In the case before us, Linda, as the victim of domestic abuse, sought a protection order against Doyle. Before issuing the protection order, the court had to find that Linda stated facts showing that Doyle attempted to cause, or intentionally, knowingly, or recklessly caused, bodily injury to Linda or that Doyle, by physical menace, placed Linda in fear of imminent bodily injury. The court so found and, as authorized under § 42-924(1), issued a protection order prohibiting Doyle from, among other things, telephoning, contacting, or otherwise communicating with Linda. As the State points out, "the focus of [the] protection order is not the speech but the conduct of Doyle." Brief for appellee at 9. The subject of Doyle's communication is immaterial—he could violate the protection order by telephoning Linda and not saying anything at all.
The test in evaluating a content-neutral injunction that restricts speech is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Madsen v. Women's Health Center, Inc.,
Other jurisdictions have upheld similar orders. In State v. Hauge,
In State v. Boyle,
In State v. Hardy,
54 P.3d at 649.
A Massachusetts appellate court reasoned that a defendant convicted of violating an abuse prevention order would have been unsuccessful in his constitutional challenges on appeal, which he did not preserve, because
Commonwealth v. Thompson, 45 Mass. App. 523, 525, 699 N.E.2d 847, 849 (1998).
We agree with the analysis of the numerous other courts considering this issue. Therefore, we hold that the domestic abuse protection order at issue in this case did not violate Doyle's First Amendment right to free speech or his similar rights under the Nebraska Constitution.
We conclude that the State adduced sufficient evidence to establish a knowing violation of the protection order by Doyle. Further, we conclude that Doyle's rights to free speech have not been infringed. His conduct in contacting Linda violated the protection order, and the protection order itself did not burden more speech than necessary to serve a significant government interest.
INBODY, Chief Judge, participating on briefs.
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