State v. Burke

• Decision Date: 12 June 1987
• Docket Number: No. 86-809,86-809
• Citation: 408 N.W.2d 239,225 Neb. 625
• Parties: STATE of Nebraska, Appellee, v. Joseph L. BURKE, Appellant.
• Court: Nebraska Supreme Court

Page 239

408 N.W.2d 239

225 Neb. 625

STATE of Nebraska, Appellee, v. Joseph L. BURKE, Appellant.

No. 86-809.

Supreme Court of Nebraska.

June 12, 1987.

Syllabus by the Court

1. Appeal and Error. Errors assigned but not discussed will generally not be considered by this court.

2. Trial: Evidence: Appeal and Error. A defendant may not permit questionable or incompetent evidence to be admitted without objection, take the chance of a favorable result, and after an unfavorable outcome complain that the evidence was received.

3. Trial: Evidence: Stipulations: Appeal and Error. A party who has stipulated to the admission of evidence cannot on appeal complain about evidence admitted pursuant to and in accordance with the stipulation.

4. Constitutional Law: Appeal and Error. Generally, this court will not consider a constitutional challenge in the absence of a specification of the constitutional provision which is claimed to be violated.

5. Constitutional Law: Statutes: Standing. A defendant who would receive no benefit from a declaration of invalidity does not have standing to challenge the constitutionality of a statute.

6. Constitutional Law: Statutes: Standing. The traditional rule is that one to whom a statute may be applied constitutionally does not have standing to challenge that statute on the ground that it conceivably may be applied unconstitutionally to others in situations not before the court; however, an exception to that rule is made when a statute is overbroad. In the latter instance one is allowed to assert the rights of others and attack the overbreadth of a statute even though the behavior of the person making the attack clearly may be unprotected and could be proscribed by a law drawn with the requisite narrow specificity.

7. Constitutional Law: Statutes: Standing. Where conduct and not merely noncommercial speech is involved, the overbreadth of the statute attacked must not only be real but substantial as well, judged in relation to the statute's plainly legitimate sweep.

8. Constitutional Law: Legislature: Presumptions: Statutes. Legislative enactments are afforded a presumption of constitutionality.

9. Criminal Law: Statutes. A penal statute is construed strictly and must be sufficiently clear so that a person of ordinary intelligence has fair notice of exactly what conduct is forbidden.

10. Constitutional Law: Statutes. Where a statute is susceptible of two constructions, under one of which the statute is valid while under the other of which the statute would be unconstitutional or of doubtful validity, that construction which results in validity is to be adopted.

11. Constitutional Law. A statute challenged as overbroad should be construed so as to avoid constitutional problems if it is subject to such a limiting construction.

12. Constitutional Law. Unconstitutionality must be clearly established before this court is authorized to declare a statute void.

13. Constitutional Law: Statutes: Standing. One who has engaged in conduct which is clearly prohibited by the questioned statute cannot complain that the statute is vague when applied to the conduct of others.

14. Criminal Law: Statutes. A penal statute is given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.

15. Statutes. In the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning.

16. Criminal Law: Statutes: Prosecuting Attorneys. Where a single act violates more than one statute, a prosecutor is free to prosecute under any statute he or she chooses, so long as the selection is not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.

17. Statutes: Presentence Reports: Mentally Disordered Sex Offender. A sentencing court has a mandatory duty under Neb.Rev.Stat. § 29-2912 (Reissue 1985) to order an evaluation of one convicted of a felony sexual offense for the purpose of determining whether he or she is a mentally disordered sex offender.

18. Mentally Disordered Sex Offender: Words and Phrases. A mentally disordered sex offender is one who, because of a mental disorder, has been determined to be disposed to repeated commission of sexual offenses which are likely to cause substantial injury to others.

19. Mentally Disordered Sex Offender: Sentences. One found to be a treatable mentally disordered sex offender shall be committed for treatment if treatment is available in this state, as well as sentenced in accordance with law.

20. Mentally Disordered Sex Offender: Words and Phrases. A sexual offense within the meaning of Neb.Rev.Stat. § 29-2911 (Reissue 1985) includes any felony in which the sexual excitement of the offender is a motivational factor.

21. Records: Appeal and Error. An assignment of error requiring an examination of the evidence cannot prevail on appeal in the absence of a proper bill of exceptions.

Donald B. Fiedler and Martin J. Kushner of Fiedler Law Offices, Omaha, for appellant.

Robert M. Spire, Atty. Gen., Lincoln, and Marie C. Pawol, Omaha, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Following a bench trial, defendant, Joseph L. Burke, was adjudged guilty of having violated Neb.Rev.Stat. § 28-1463.03(1) (Reissue 1985), a part of the Child Pornography Prevention Act as adopted by 1985 Neb.Laws, L.B. 668, and codified as Neb.Rev.Stat. §§ 28-1463.01 through 28-1463.05 (Reissue 1985), inclusive. Burke was thereafter sentenced to serve a term of not less than 2 nor more than 5 years at the Nebraska Penal and Correctional Complex. He appeals and assigns as error the district court's determination that (1) the participants were under the age of 16, (2) the statute is constitutional, (3) the offense constitutes a Class III felony, and (4) he is not a mentally disordered sex offender. (Burke undertook to raise via a supplemental brief a claim that the sentence imposed is technically defective, but withdrew that claim when appearing for oral argument.) We affirm.

Gerald High, during the course of an investigation of his activities, informed the Lincoln Police Department that Burke owned a large library of pornographic material, some of which was child pornography. The Lincoln police passed the information along to the Omaha Police Division, which then undertook an investigation of Burke's activities. On November 12, 1985, High telephoned Burke from the Omaha Police Division and arranged a meeting at Burke's home. High brought Omaha Police Sgt. John Beers along, who posed as a friend of High.

High asked Burke to copy a videocassette tape which High had himself filmed at an earlier time. The High tape shows a number of nude males, at least one of whom is under 16 years of age, displaying their genitals, touching each other's unclothed genitals, and engaging in masturbation, oral-genital sex, and simulated anal-genital sex.

While the High tape was being copied, High asked Burke to play another videocassette tape for them to watch. Burke complied by playing a tape of a commercial 8-millimeter movie, "Cousin Bill," which had been filmed in 1975 and transferred to videocassette tape at an undisclosed time. This tape shows boys approximately 10 to 13 years old displaying their genitals, touching each other's unclothed genitals, and engaging in masturbation, oral-genital sex, and anal-genital sex. During the process of copying the High tape and watching "Cousin Bill," other officers who had been monitoring the conversation in the Burke home via a hidden microphone on Beers were summoned into the home, and Burke was arrested.

New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.

With the Ferber holding in mind, Judiciary Committee Hearing, L.B. 668, 89th Leg., 1st Sess. 112 (Mar. 5, 1985), our Legislature enacted § 28-1463.03(1), which provides: "It shall be unlawful for a person to knowingly make, publish, direct, create, provide, or in any manner generate any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers."

Some of the terms employed in the foregoing provision are defined in § 28-1463.02, which at the relevant time read:

As used in the Child Pornography Prevention Act, unless the context otherwise requires:

(1) Child shall mean any person under the age of sixteen years;

(2) Erotic fondling shall mean touching a person's clothed or unclothed genitals or pubic area, breasts if the person is a female, or developing breast area if the person is a female child, for the purpose of real or simulated overt sexual gratification or sexual stimulation of one or more persons involved. Erotic fondling shall not be construed to include physical contact, even if affectionate, which is not for the purpose of real or simulated overt sexual gratification or sexual stimulation of one or more of the persons involved;

(3) Erotic nudity shall mean the display of the human male or female genitals or pubic area, the human female breasts, or the developing breast area of the human female child, for the purpose of real or simulated overt sexual gratification or sexual stimulation of one or more of the persons involved;

(4) Sadomasochistic abuse shall mean flagellation or torture by or upon a nude person or a person clad in undergarments, a mask, or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained when performed to predominantly appeal to the morbid interest;

(5) Sexually explicit conduct shall mean: (a) Real or simulated intercourse, whether genital-genital, oral-genital, anal-genital, or oral-anal between persons of the same or opposite sex or between a human and an animal or with an artificial genital [sic]; (b) real or simulated masturbation; (c) real or simulated sadomasochistic abuse; (d) erotic...