Straight-on-straight assault upheld as LGBT hate crime by NE Supreme Court

Above: drag-queen led protest in Omaha's Old Market after Halloween, 2013 assault of Ryan Langenegger outside the Old Market Pepperjax

Duncan, (right) sucker-punched Langenegger during a night
out with his buddies, self-admitted blackout drunk Joey
Adriano and Omaha attorney Paul Larson.

AKSARBENT believes this case has not received the attention it deserves. Why? Omaha prosecutors used a LGBT hate crime provision to go after a heterosexual (construction worker Gregory Duncan) who assaulted another heterosexual (Marine Ryan Langenegger) and won the case before a jury; then their argument prevailed in a state supreme court challenge. Remember that the next time your local DA says hate crime prosecutions are just too hard to win.

According to NET:

At the hearing, questions were raised about what factors contribute to defining an assault based on discrimination and the potential need for a definition of “sexual orientation,” which recognizes transgender and increased understanding of more fluid expressions of sexuality.

Muddying the waters of definitions is a favorite tactic of right-wingers when they attack gay rights policies and laws. When the ploy was tried in Duncan's defense, the Nebraska Supreme Court was quick to slap the tactic down. In the end, it decided that common, ordinary understanding of the meaning of "sexual orientation" was sufficient and that the jurors were not confused.

Jurors are accepted because they are men and women of common sense and have a common understanding of words ordinarily used in our language. In instructing a jury, the trial court is not required to define language commonly used and generally understood. Under the facts of the instant case, the term “sexual orientation” was a word commonly used and generally understood. The term was used throughout the jury selection process and the trial, and there is no indication in the record that it produced confusion.

Duncan's appeal also raised the issue of ineffective assistance on the part of James Martin Davis, his first attorney. Duncan contended that Davis's closing argument was “demeaning and disparaging to the victim and the State’s witnesses” and that both Davis's suggestion that the widely circulated photo of a bloodied Langenegger was digitally manipulated and his "sex on the widewalk" diversion were damaging to his defense. The court ruled that they weren't.

More from the ruling:

     Duncan 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.
After 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...

Nebraska Supreme Court

     We have often discussed causation in criminal cases. We have said that criminal conduct is a cause of an event if the event in question would not have occurred but for that conduct; conversely, conduct is not a cause of an event if that event would have occurred without such conduct. But this is the first time that we must apply the concept to a defendant’s motive rather than his conduct. This concept of causation is ordinarily used to determine whether a defendant’s conduct is the cause of another’s injury or loss. Under the language of the statute at issue here, we must adapt it to the context of a defendant’s motive as a cause of his behavior. Applying our causation principles by analogy, the phrase “because of” in the enhancement statute required the State to prove that Duncan would not have assaulted Langenegger but for his association with a person of certain sexual orientation. Under our highly deferential standard of review, the State did so.
 although Duncan claimed that he did not know that Foo and Fendi Blu were homosexual, the State introduced evidence sufficient for a jury to infer that he did. The State presented testimony that Duncan, Adriano, and Larson were sitting together at the restaurant when Foo heard members of Duncan’s group call out derogatory names for homosexuals as he, Langenegger, and Fendi Blu exited the restaurant. A rational jury could infer that even if Duncan did not say the derogatory names himself, he heard them. Additionally, while Duncan stood close enough to lunge and punch Langenegger outside the restaurant, Langenegger heard Adriano say, “‘Faggot,’” and Foo heard someone say the word “‘queer.’” A rational jury could find that Duncan did in fact hear those words and that he therefore believed that Langenegger was with people who were homosexual.
    The evidence was sufficient to prevent a directed verdict on the enhancement charge. First,
     Second, the State presented evidence to show that Langenegger’s association with homosexual people was the reason for the assault. The State’s witnesses testified that there was no other apparent motivation. Langenegger testified that he had not spoken to Duncan before the assault, and Foo, Langenegger, and Larson all testified that Langenegger did not touch Adriano or anyone else in Duncan’s group. A rational jury could infer from this evidence that Duncan’s motivation was his belief that Langenegger was associated with homosexual people. Therefore, the district court properly overruled Duncan’s renewed motion for a directed verdict.

   State of Nebraska vs. Duncan