State v. Connely, S-92-761
| Decision Date | 23 April 1993 |
| Docket Number | No. S-92-761,S-92-761 |
| Citation | 243 Neb. 319,499 N.W.2d 65 |
| Parties | STATE of Nebraska, Appellee, v. Steven M. CONNELY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Statutes: Standing. In order to have standing to assert a claim of vagueness, a defendant must not have engaged in conduct which is clearly prohibited by the questioned statute and cannot maintain that the statute is vague when applied to the conduct of others.
2. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality.
3. Constitutional Law: Statutes: Proof. Before a court can declare a statute unconstitutional, its unconstitutionality must be clearly demonstrated, and the burden to do so rests upon the party making the claim of unconstitutionality.
4. Constitutional Law: Statutes. The test for determining whether a statute is vague is whether it forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.
5. Constitutional Law: Statutes. A statute will not be deemed vague if it uses ordinary terms which find adequate interpretation in common usage and understanding.
6. Constitutional Law: Statutes. In determining whether a statute is vague and therefore does not give a defendant adequate notice that his or her conduct is proscribed, the statute must be examined in light of the conduct with which the defendant is charged.
7. Constitutional Law: Statutes. The prohibition against vagueness does not invalidate a statute simply because it could have been drafted with greater precision; the test is whether the defendant could reasonably understand that his or her conduct was proscribed by the statute.
8. Criminal Law: Entrapment: Words and Phrases. Entrapment is the governmental inducement of one to commit a crime not contemplated by the individual, in order to prosecute that individual for the commission of the criminal offense.
9. Criminal Law: Entrapment. Entrapment occurs when the criminal intent or design originates with governmental officials who implant in the mind of an innocent person the disposition to commit a criminal offense and induce criminal conduct in order to prosecute the criminal offense so induced.
10. Criminal Law: Entrapment. Where one has no previous intent or purpose to violate the law, but does so only because one is induced to commit the act by law enforcement officers or agents, one is entitled to the defense of entrapment.
11. Criminal Law: Entrapment: Intent. Entrapment consists of two elements: (1) government inducement of the defendant to commit the offense charged and (2) a defendant's predisposition to commit the criminal act was such that he or she was not otherwise ready and willing to commit the offense on any propitious opportunity.
12. Entrapment: Evidence: Proof: Juries. Entrapment is in the nature of an affirmative defense, and thus the burden of going forward with evidence of governmental inducement is on the defendant. When a defendant produces sufficient evidence to raise the defense, the question of entrapment becomes one of fact for the jury, and the burden is then on the State to prove beyond a reasonable doubt that the defendant was not entrapped.
13. Entrapment: Verdicts: Evidence: Appeal and Error. When reviewing jury verdicts regarding the defense of entrapment, an appellate court will disturb the jury's findings only when the preponderance of evidence against such findings is great and they clearly appear to be wrong, or when the findings are clearly contrary to law.
14. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts of evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented to a jury, which are within a jury's province for disposition.
15. Verdicts: Appeal and Error. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.
16. Verdicts: Appeal and Error. An appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence; only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., Kearney, for appellant.
Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.
Pursuant to verdict, the defendant-appellant, Steven M. Connely, was adjudged guilty on each of two counts of dispensing or delivering an anabolic steroid, in violation of Neb.Rev.Stat. §§ 28-446 and 28-447 (Cum.Supp.1990), and was thereafter sentenced. Upon Connely's appeal, the district court affirmed the judgment of the county court. Connely now asserts that the district court erred in failing to find that the county court erred on the record by its failure to find that (1) §§ 28-446 and 28-447 are unconstitutionally vague, (2) he was unlawfully entrapped, and (3) the evidence is insufficient to support the conviction. We affirm.
Connely was a college criminal justice major aspiring to gain employment in one of a variety of federal law enforcement agencies. In October 1990, he researched using steroids because of a demanding schedule and his desire to prepare to join the Drug Enforcement Administration. He purchased books on the subject, including one entitled "Anabolic Reference Guide." After reading these materials, Connely decided to try a short cycle of 8 weeks of use of the oral steroid methyltestosterone. Failing to attain the results he had wanted, he discontinued taking the substance in February 1991.
After receiving information about the possible sale of anabolic steroids at a college campus, a police investigator, on April 2, 1991, contacted a confidential informant who was enrolled in a course with Connely, a person who had been called to the investigator's attention as a possible seller. According to the informant, he, at approximately 4 p.m., went to Connely's campus dormitory and approached Connely about purchasing some steroids. The informant asserts he claimed he was "getting into lifting" and "wanted to get big." However, Connely disputes this, testifying that the informant spoke only of a desire to lose weight and of wanting to get in shape for an upcoming sheriff's physical fitness test.
Connely told the informant that he did not know if he could find any steroids at that time and asked what kind of steroid the informant wanted. The informant replied that he did not know anything about them. Reading out of a reference guide describing the substance, Connely began listing different types of steroids. The informant initially asked for "pill form steroids," but Connely told him that they were hard to find and were not as effective as injectable-form steroids.
According to the informant, Connely then called someone on the telephone and left a message on an answering machine, explaining that he had someone wishing to purchase steroids and asking that the call be returned. Shortly thereafter, the telephone rang. Connely told the informant that the person on the telephone had some steroids and began quoting prices. Connely asked the informant how much he wished to spend, passed the information on to the individual on the telephone, and checked back with the informant to see if the price was satisfactory.
After Connely hung up the telephone, he told the informant to call later that evening if the informant still wanted the steroids. Connely told the informant that since the informant was from "in town," thus obviating any travel expenses, Connely would not charge overhead and would give the steroids to the informant for what Connely's dealer was getting for them. Connely also spoke of the price inflation in steroids and of counterfeit steroids on the market, telling the informant that Connely was doing the informant a favor. The informant later received a message on his telephone answering machine from Connely and arranged to meet Connely on April 4, 1991, at approximately 4 p.m.
On April 4, the informant again went to Connely's dormitory room to purchase the steroids. Connely showed the informant how to tell if a box of steroids had been tampered with and instructed the informant to tear off the labels and dispose of them so that the lot numbers could not be traced. Connely also explained how the informant should use the steroids, how frequently, where to inject them, what types of needles to buy, and where to buy needles. The informant purchased three boxes of steroids from Connely, which Connely said would last 9 months.
Sometime thereafter, the informant told Connely that he was on antibiotics and asked if the steroids would still help him. Connely advised the informant not to take the steroids.
The informant again telephoned Connely on May 29, 1991. During this telephone conversation, the informant told Connely that since the informant had been sick and was using antibiotics and because he needed the money, the informant had sold the steroids he had purchased to a friend. The informant then told Connely that he was feeling better now and wished to buy some more steroids.
Connely told the informant that the steroids he was providing on this occasion were much better than those which he had sold him on April 4, explaining that the new steroids had to be mixed and that they were to be administered in the buttocks. Connely told the informant that the cost would be $160, that the new steroids would...
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