State v. Drahota

Omaha Police & Fire Ret. Sys., supra. Although in the case
before us, the appellants’ argument is somewhat farfetched, we
cannot say that it was wholly without merit.
CONCLUSION
Because the appellants are not entitled to relief from the
operation of L.B. 126 prior to its repeal and the repeal was
not retroactive, we conclude that Good Cheer, a former Class I
school district disbanded pursuant to L.B. 126, no longer exists.
Therefore, the appellants’ complaint premised on the existence
of Good Cheer fails to state a cause of action. The district court
did not err in dismissing the appellants’ complaint. However,
because the appellants’ allegation that the repeal of L.B. 126
applied retroactively was not frivolous, we conclude that the
district court’s award of attorney fees constituted an abuse of
discretion, and we reverse the award.
A ffirmed in pArt, And in pArt reversed.
stAte of nebrAskA, Appellee , v.
dArren J. drAhotA, AppellAnt.
772 N.W.2d 96
Filed June 16, 2009. 	No. A-08-628.
1. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
2. ____. Plain error is error plainly evident from the record and of such a nature
that to leave it uncorrected would result in damage to the integrity, reputation, or
fairness of the judicial process.
3. Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate
court does not resolve conflicts in the evidence, pass on the credibility of wit-
nesses, or reweigh the evidence.
4. Disturbing the Peace: Words and Phrases. A breach of the peace is a violation
of public order. It is the same as disturbing the peace. The definition of breach
of the peace is broad enough to include the offense of disturbing the peace; it
signifies the offense of disturbing the public peace or tranquility enjoyed by the
citizens of a community.
5. ____: ____. Breach of the peace is a common-law offense. The term “breach of
the peace” is generic and includes all violations of public peace, order, decorum,
or acts tending to the disturbance thereof.
678 	17 NeBrASkA APPeLLATe rePOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

6. Constitutional Law: Disturbing the Peace: Words and Phrases. There are
certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the insulting
or “fighting” words—those which by their very utterance inflict injury or tend
to incite an immediate breach of the peace. resort to epithets or personal abuse
is not in any proper sense communication of information or opinion safeguarded
by the Constitution, and its punishment as a criminal act would raise no question
under that instrument.
Appeal from the District Court for Lancaster County, John
A. C olborn, Judge, on appeal thereto from the County Court
for Lancaster County, GAle pokorny, Judge. Judgment of
District Court affirmed.
Darren J. Drahota, pro se.
Jon Bruning, Attorney General, and George r. Love for
appellee.
inbody, Chief Judge, and sievers and CAssel, Judges.
sievers, Judge.
This appeal involves the conviction of Darren J. Drahota for
disturbing the peace. Drahota was convicted after a bench trial
in the Lancaster County Court, and his conviction was affirmed
on appeal to the Lancaster County District Court. Drahota has
now perfected his appeal to this court.
BACkGrOUND
The charge of disturbing the peace flows from an exchange of
18 e-mails beginning in late January 2006 and ending February
10, followed by two more e-mails in mid-June 2006—the latter
two being the subject of the charge at issue.
In late January 2006, Drahota, apparently then a student at
the University of Nebraska-Lincoln, began writing to William
Avery, then a professor of political science at the university,
who by the end of the exchange was a candidate for election
to the Nebraska Legislature and who was ultimately elected
to that post, which he held at the time of trial. While it is
clear from the record that Drahota and Avery had a student-
professor relationship, it is not clear whether that relationship
STATe v. DrAHOTA 	679
Cite as 17 Neb. App. 678

was prior to the e-mails at issue or was ongoing at the time of
the exchange. In this background section, we think the stage is
set most efficiently by broadly characterizing the content of the
e-mails and the parties involved and then using pertinent quota-
tions from the lengthy e-mails.
The initial series of e-mails began January 27, 2006, by
Drahota to Avery and ended February 10 with an e-mail
from Drahota to Avery. There are a total of 18 e-mails, 11 by
Drahota and 7 by Avery, and 11 of the 18 occur in the time-
frame beginning with Drahota’s of 2:16 a.m. on February 9
and ending with Drahota’s of 12:02 p.m. on February 10. From
the content of these e-mails, it appears that Drahota likely falls
on the “right,” or conservative, side of the conventional politi-
cal spectrum, whereas Avery appears to fall to the “left,” or
liberal, side of the spectrum. Obviously, these are very rough
generalizations intended to lend some generalized context to
the initial e-mail exchange. essentially, these 18 e-mails are an
exchange of differing opinions on a variety of topics, such as
the Bush presidency and its policies, the Clinton impeachment,
the Iraq conflict, Muslims, terrorism, the “war on terror,” the
use of force in the Middle east, Al Qaeda, and military ser-
vice to the United States. In short, the topics of these e-mails
involve issues of the day. However, Drahota’s e-mails are much
longer, to the point that such might be called “rants,” and often
laced with profanity and invective. Avery’s responses, while
suggesting disagreement, were quite brief. Interestingly, some
portions of the e-mails from Drahota had friendly, respectful,
and admiring comments about Avery and his teaching, but in
the same e-mail, Drahota would include disrespectful, hostile,
angry, profane, and arguably discriminatory comments about
blacks, Muslims, and people on the liberal, or left, side of the
political spectrum, as well as comments that certainly could be
read as disrespectful and insulting to Avery.
The end of these initial exchanges occurred via Avery’s
e-mail of 3:35 p.m. on February 9, 2006, which responded
to Drahota’s sent at approximately noon that day, in which
Drahota asserted that the university’s football team would be
good in a couple of years “if Al Queda doesn’t destroy us first
because of Liberals aiding them (just kidding). . . . You were
680 	17 NeBrASkA APPeLLATe rePOrTS

my favorite instructor from any class . . . . even though you’re
a liberal bum, I’ll take you under my wing when the bad times
come.” Avery’s response stated: “I will not respond to this. It
is far too extreme, vile, and angry. Plus, it is full of untruths
about very decent people (including me), whom you insist on
accusing falsely of treason. So, let’s end this.” This generated
an immediate response from Drahota in which he essentially
asserted that his intention was to debate with an instructor and
that Avery had mistaken the “tone” of his e-mails, ending with,
“Let’s go drink and discuss your campaign.” Approximately 20
minutes later, Avery responded:
I am tired of this shit. You have accused me of being
anti-American, unpatriotic, and having a mental disorder,
among other things. I find this offensive and I will not
engage in anymore of this with you. I served my country
in uniform honorably for four years. How many have
you served? Since you are so pure, so pro-American, so
absolutely correct, and wonderfully patriotic, I suggest
you sign-up for duty in Iraq right away and put all your
claims to the test. But, of course, you will not do that.
You, Michael Savage, and the “Chicken Hawks” in the
Bush Administration don’t have the guts!!
While the exhibit containing Drahota’s response lacks a time
and date, the inference is clear that it was rather immediate,
and we quote pertinent portions:
Fuck you! You don’t know me one bit. You are a lib-
eral American coward. If it were up to you, you would
imprison Bush before bin Laden . . . . I spent 18 months
in Pensacola Florida before I was honorably discharged
for a neck injury. You can go fuck yourself if you are
going to get that way. I’d kick your ass had you said that
right in front of me, but YOU don’t have the guts to say
that. If you think you do, just try me. . . . We call you
people turncoats and I’ll be dammed if I’m going to take
that kind of disrespect from someone who is so clueless
as to my military background. . . . You contradict yourself
so much that I want to puke. . . . You lie so much and
don’t show the true you. . . .
You’ve really pissed me off[.]
STATe v. DrAHOTA 	681
Cite as 17 Neb. App. 678

Before Avery responded, Drahota sent another missive at 9:50
p.m. on February 9 that began, “I take that back. I would not
resort to violence with you . . . .” This e-mail continued by
recounting that Drahota had had friends who were in Iraq at
the time or who had been there and that he “was absolutely
hearbroke [sic] when [I] realized that I would never be able to
achieve my dream of flying planes. . . . I was trying to be nice
about everything until you assumed too much and fired me an
email that was pretty scathing. Good luck[.]”
The next morning, Avery responded:
Please consider this email a request that you not con-
tact me again for the purpose of spilling more vile. Also,
I think you should know that I have saved ALL of your
ranting and threatening emails and will not hesitate to
turn them over to the police if I hear anything more of
this nature from you. Have a nice day.
Less than an hour later, Drahota wrote a long e-mail of apol-
ogy stating that he would not further contact Avery regarding
politics. We quote selected portions from this lengthy e-mail
sent at noon on February 10, 2006:
I am sorry for using the F-word in my email, and I apolo-
gize for saying that I would have become physical had
you said that to my face. That kind of stuff goes against
my own values . . . . I understand why you were so upset
when I inferred that you were a Benedict Arnold. I do not
feel that way about you . . . . Will you at least accept my
apology. . . . You have taught me a lot . . . . You did not
deserve any of the emails that I sent you. I just wanted to
debate someone whom, I believe, is very knowledgeable
with the opposite point of view that I foster. . . . I believe
I have made a complete ass out of myself to my favorite
instructor . . . . I’m sorry professor Avery and I hope you
will forgive me. You’re a good person and you shouldn’t
have to email me what you just did. Please understand
that I feel bad about this. . . . Have a good weekend Bill,
and I apologize for disrespecting you.
The above-quoted e-mail appeared to be the end of the mat-
ter, at least until 4 months later. Avery received an e-mail at
682 	17 NeBrASkA APPeLLATe rePOrTS

his university e-mail address, dated June 14, 2006, at 11:58
p.m. from “averylovesalqueda@yahoo.com,” with the subject
line “Al-Zarqawi’s dead. . . .” This was followed on June 16 at
8:50 a.m. with another e-mail to Avery from the same Internet
address, with the subject line “traitor.” We discuss the contents
of these two e-mails later in our opinion.
At this juncture, Avery contacted the Lincoln police. A
police investigator traced the e-mails to a computer owned by
a woman with whom Drahota lived. Drahota ultimately admit-
ted to the investigator that he had sent the e-mails referenced
above on June 14 and 16, 2006. Drahota was charged by com-
plaint under Neb. rev. Stat. § 28-1322 (reissue 2008) with
disturbing the peace and quiet of Avery “on or about June 14,
2006.” After a bench trial before the Lancaster County Court
concluding on January 30, 2007, Drahota was found guilty by
oral pronouncement and fined $250. Drahota’s appeal to the
district court was unsuccessful, and he now appeals his convic-
tion to this court.
ASSIGNMeNTS OF errOr
Drahota’s pro se appellant’s brief does not contain assign-
ments of error, but, rather, lists “Issues,” and there are two,
which we quote: “The Court erred in overruling Defendant’s
Motion To Dismiss after the State rested,” and “The verdict is
not sustained by sufficient evidence that proves the Defendant’s
guilt beyond a reasonable doubt.”
[1] Neb. Ct. r. App. P. § 2-109(D)(1)(e) requires a separate
section for assignments of error, designated as such by a head-
ing, and requires that the section be located in the sequence
specified by such rule—after a statement of the case and
before a list of controlling propositions of law. To be con-
sidered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the
party asserting the error. City of Gordon v. Montana Feeders,
Corp., 273 Neb. 402, 730 N.W.2d 387 (2007). Although an
appellate court ordinarily considers only those errors assigned
and discussed in the briefs, the appellate court may, at its
option, notice plain error. Linch v. Northport Irr. Dist., 14 Neb.
App. 842, 717 N.W.2d 522 (2006). In instances where the
STATe v. DrAHOTA 	683
Cite as 17 Neb. App. 678

above-referenced rules are not followed, as here, we review the
record for plain error.
We note that in addition to the easy availability of such
rules on the Nebraska Judicial Branch Web site, the “Self Help
Center” located on the Web site is designed for pro se litigants
and contains a section entitled “Find help with . . . Appeal
to the Supreme Court/Court of Appeals.” See http://www.
supremecourt.ne.gov/self-help/ 	(last 	visited 	June 	8, 	2009).
There, a litigant can easily use a link to the “Citizen’s Guide
to the Nebraska Appellate Courts,” which, among other things,
emphasizes the need for compliance with § 2-109(D) concern-
ing assignments of error. Accordingly, we review the record for
plain error, bearing in mind Drahota’s claim that the e-mails
were protected political speech.
STANDArD OF reVIeW
[2,3] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judicial
process. Linch v. Northport Irr. Dist., supra. In reviewing a
criminal conviction, an appellate court does not resolve con-
flicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence. State v. Delgado, 269 Neb. 141, 690
N.W.2d 787 (2005). Such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the properly admitted evidence, viewed and construed
most favorably to the State, is sufficient to support the convic-
tion. Id.
ANALYSIS
The trial court found, summarized, that while there was
initially some back-and-forth banter, Avery asked that it stop.
Instead, Drahota waited 4 months, then created a fake address,
“averylovesalqueda@yahoo.com,” from which he sent the two
e-mails forming the basis of the charge. Avery testified that he
was “disturb[ed]” by Drahota’s actions. The trial court con-
victed Drahota of disturbing Avery’s peace.
In the two e-mails sent to Avery from the above address,
with no indication that they were actually from Drahota,
Drahota first wrote concerning the death of Abu Musab
684 	17 NeBrASkA APPeLLATe rePOrTS

al-Zarqawi (a known high-level terrorist in Iraq), and asked
Avery: “Does that make you sad that the al-queda leader in
Iraq will not be around to behead people and undermine our
efforts in Iraq? . . . You . . . and the ACLU should have a
token funeral to say goodbye to a dear friend of your anti-
american sentiments.”
In Drahota’s e-mail of June 16, 2006, with the subject line
“traitor,” Drahota wrote to Avery:
I have a friend in Iraq that I told all about you and he
referred to you as a Benedict Arnold. I told him that fit
you very well. . . . I’d like to puke all over you. People
like you should be forced out of this country. Hey, I have
a great idea!!!! . . . Let’s do nothing to Iran, let them get
nukes, and then let them bomb U.S. cities and after that,
we will just keep turning the other cheek. remember
that Libs like yourself are the lowest form of life on
this planet[.]
[4,5] Therefore, looking at only the two e-mails that were
sent on or about June 14, 2006, per the complaint filed
against Drahota, we note that after a hiatus of 4 months,
Drahota, using a libelous e-mail address, accused Avery of
being aligned with a terrorist group responsible for unspeak-
able violence in this country as well as in Iraq against U.S.
troops and Iraqi citizens. He called Avery a traitor, said that
he wanted to “puke all over” him, and stated that Avery is
the “lowest form of life on this planet.” This hardly repre-
sents civil discourse or debate, and such accusations impugn
Avery’s loyalty to the United States. And by labeling him a
traitor, Drahota has accused Avery of the crime of treason. The
undisputed evidence is that Drahota wrote these two e-mails
without identifying himself and that he used a false and libel-
ous source for such e-mails using Avery’s name. But, Drahota
asserts that what he did is not the criminal act of disturb-
ing Avery’s peace. We cannot agree. The Nebraska Supreme
Court has said in State v. Coomes, 170 Neb. 298, 301-02, 102
N.W.2d 454, 457 (1960):
A breach of the peace is a violation of public order.
It is the same as disturbing the peace. The definition of
breach of the peace is broad enough to include the offense
STATe v. DrAHOTA 	685
Cite as 17 Neb. App. 678

of disturbing the peace; it signifies the offense of disturb-
ing the public peace or tranquility enjoyed by the citizens
of a community. . . .
Breach of the peace is a common law offense. The term
“breach of the peace” is generic and includes all viola-
tions of public peace, order, decorum, or acts tending to
the disturbance thereof.
(Citations omitted.)
[6] The argument that the communications of June 14 and
16, 2006, are constitutionally protected speech fails. The U.S.
Supreme Court’s opinion in Chaplinsky v. New Hampshire, 315
U.S. 568, 62 S. Ct. 766, 86 L. ed. 1031 (1942), was quoted
at some length by the Nebraska Supreme Court in State v.
Broadstone, 233 Neb. 595, 600, 447 N.W.2d 30, 34 (1989),
as follows:
“There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which
have never been thought to raise any Constitutional prob-
lem. These include the lewd and obscene, the profane,
the libelous, and the insulting or ‘fighting’ words—those
which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as
a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order
and morality. ‘resort to epithets or personal abuse is not
in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punish-
ment as a criminal act would raise no question under that
instrument.’ Cantwell v. Connecticut, 310 U.S. 296, 309-
310[, 60 S. Ct. 900, 84 L. ed. 1213 (1940)].”
It would be difficult to author a more apt description of
Drahota’s actions in sending the two e-mails to Avery in June
2006, or to better explain why the two June e-mails subject
him to criminal prosecution and conviction. We emphasize that
while we have recounted much of the earlier e-mail exchange
in late January and early February 2006, we have done so for
background, and to show how what Drahota wrote in June had
686 	17 NeBrASkA APPeLLATe rePOrTS

changed in tone and content. It is of consequence that in June,
he attempted to hide his authorship, in contrast to the February
exchange when he plainly identified himself. And, of course,
he knew after February 10 that Avery was finished with the
“discussion” and wanted no more e-mail from him. Therefore,
our affirmance of the conviction is based on the June e-mails,
not the exchange 4 months previously. The evidence is plainly
sufficient to sustain the conviction.
A ffirmed.
John kruid, AppellAnt, v. fArm bureAu mutuAl
insurAnCe C ompAny And Western AGriCulturAl
insurAnCe C ompAny, Appellees.
770 N.W.2d 652
Filed June 16, 2009. 	No. A-08-883.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the
court views the evidence in the light most favorable to the party against whom the
judgment was granted, and the court gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Contracts. When the terms of a contract are clear, they are to be accorded their
plain and ordinary meaning.
4. Insurance: Contracts. An insurer may limit its liability and impose restrictions
and conditions upon its obligations under an insurance contract as long as the
restrictions and conditions are not inconsistent with public policy or statute.
5. Statutes: Insurance: Contracts. When an applicable statutory provision con-
flicts with the provisions of an insurance policy, the statute and not the insurance
policy controls.
6. Workers’ Compensation: Insurance: Contracts. All workers’ compensation
insurance policies shall include within their terms the payment of compensation
to all employees, officers, or workers who are within the scope and purview of
the Nebraska Workers’ Compensation Act.
7. Statutes: Appeal and Error. Statutory interpretation presents a question of law.
8. Statutes. Absent anything to the contrary, statutory language is to be given its
plain meaning, and a court will not look beyond the statute or interpret it when
the meaning of its words is plain, direct, and unambiguous.
9. Jurisdiction: Courts: Legislature. The Legislature cannot limit or control the
jurisdiction of the district court.
krUID v. FArM BUreAU MUT. INS. CO. 	687
Cite as 17 Neb. App. 687