State v. Johnson

• Citation: 695 N.W.2d 165,269 Neb. 507
• Decision Date: 25 March 2005
• Docket Number: No. S-02-1503.,S-02-1503.
• Parties: STATE of Nebraska, appellee v. Kenneth JOHNSON, appellant.
• Court: Supreme Court of Nebraska

695 N.W.2d 165

269 Neb. 507

STATE of Nebraska, appellee v. Kenneth JOHNSON, appellant.

No. S-02-1503.

Supreme Court of Nebraska.

March 25, 2005.

Brett McArthur, Lincoln and Franklin E. Miner, for appellant.

Jon Bruning, Attorney General, and Susan J. Gustafson for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

PER CURIAM.

NATURE OF CASE

Kenneth Johnson was tried in the district court for Lancaster County for incest and for first degree sexual assault on a child, based on acts allegedly committed against his stepdaughter. He was acquitted by a jury of the first degree sexual assault charge but convicted of incest. Johnson appealed to the Nebraska Court of Appeals. Included in the issues raised on appeal relative to the incest statute, Neb.Rev.Stat. § 28-703(1) (Reissue 1995), was a consideration of the correct definition of "minor" under the incest statute for acts committed against a stepchild and whether § 28-703 is unconstitutionally vague for failing to define "minor." The Court of Appeals affirmed Johnson's conviction. State v. Johnson, 12 Neb.App. 247, 670 N.W.2d 802 (2003). We granted Johnson's petition for further review. We affirm.

STATEMENT OF FACTS

Johnson and his wife were married in 1991. Johnson's wife had four children from previous relationships, all of whom lived with the couple. Johnson had five children, two of whom lived periodically with the couple. At the time of the marriage, C.K., a stepdaughter of Johnson, was around 10 years old.

Johnson admitted to police that when C.K. was around the age of 17, Johnson and C.K. had sexual contact, and that they had sexual intercourse when C.K. was 18 years old. C.K., however, testified that the contact started at age 12 and that intercourse started a year later and continued until she contacted the police.

On November 30, 2001, Johnson was charged with first degree sexual assault on a child (count I), in violation of Neb.Rev.Stat. § 28-319 (Reissue 1995), and incest (count II), in violation of § 28-703(1). Section 28-703(1) provides, "Any person who shall knowingly intermarry or engage in sexual penetration with any person who falls within the degrees of consanguinity set forth in section 28-702 or any person who engages in sexual penetration with his or her minor stepchild commits incest."

Johnson filed a motion in limine asking the court to exclude the evidence of his statement made to police officers on October 4, 2001. Specifically, Johnson objected to any statement he made regarding sexual contact with the alleged victim when she was 16 years or older. At the hearing, Johnson argued, in part, that any alleged sexual contact with C.K. when she was above the age of consent would not constitute incest and that the statement would be unfairly prejudicial. The court overruled the motion in limine. The case proceeded to a jury trial. Before the case was submitted to the jury, Johnson objected to jury instruction No. 4 which stated in relevant part that an element of the charge of incest was that C.K. "was, at the time of the offense, less than nineteen (19) years old." The court overruled the objection and refused to give Johnson's proposed jury instruction No. 4 which would have stated in relevant part that an element of the charge of incest was that C.K. "was, at the time of the offense, less than sixteen (16) years old." The jury found Johnson not guilty of first degree sexual assault on a child but found him guilty of stepchild incest. The court entered judgment in conformity with the jury verdict and sentenced Johnson.

Johnson appealed to the Court of Appeals. He asserted that the district court erred in (1) overruling his motion for directed verdict for the reason that the State failed to make a prima facie showing of all the elements of its case and because the statute upon which the charge was based is unconstitutionally vague; (2) allowing the State to amend the information to include the word "minor" in the charge of incest; (3) overruling his motion for mistrial; (4) refusing to grant him a new arraignment after the information was amended, thereby denying him an opportunity to file a motion to quash; (5) overruling his objection to jury instruction No. 4; and (6) refusing to give his proposed jury instruction in place of jury instruction No. 4. The Court of Appeals rejected each of these assignments of error. State v. Johnson, 12 Neb.App. 247, 670 N.W.2d 802 (2003).

With respect to Johnson's claim that § 28-703 was unconstitutional, the Court of Appeals determined that Johnson had not complied with Neb. Ct. R. of Prac. 9E (rev. 2000) and therefore concluded that the claim had not been properly preserved for appellate review. Rule 9E generally provides for the filing of a separate notice challenging the constitutionality of a statute and serving a brief on the Attorney General. The Court of Appeals also rejected Johnson's assertions that the district court erred in giving the State's instruction No. 4 on the definition of "minor," as it pertained to the stepchild incest charge in count II, and in refusing to give Johnson's proposed instruction on the definition of "minor."

The Court of Appeals noted that § 28-703 does not define "minor" and that minors are described as being persons of different ages for different purposes in various Nebraska statutes. The Court of Appeals concluded that Neb.Rev.Stat. § 43-2101 (Reissue 2004) provided the correct definition of the term "minor" in § 28-703. The Court of Appeals reasoned as follows:

Use of § 43-2101 to define "minor" for purposes of the incest statute, § 28-703, is appropriate because the incest statute is obviously intended to protect the familial structure of both blood relatives and stepfamilies. Minor stepchildren are included in the incest statute because a stepparent and a minor stepchild can have the same relationship as a natural parent has with a natural child. Even if the relationship is not the same, the stepparent is still in a position of power, authority, and dominance vis-a-vis the stepchild.

For parents and natural children, there is no age at which sexual relations become lawful. See § 28-703. In short, the law does not permit consent to such a relationship. However, for the crime of incest in a stepfamily, the stepchild must be a minor, meaning that an adult stepchild can consent to such a relationship. The Legislature apparently recognized that the makeup of a stepfamily may eventually change once a child becomes an adult and that a sexual relationship between an adult stepchild and a stepparent could occur, because it does not have the inherent criminality, danger to offspring, and destructiveness to the entire family that arises when sex occurs between parent and child. It is evident that the Legislature saw incest as a very serious crime and wanted to provide as much protection as possible for stepchildren and their families without denying the fact that the status of stepfamilies may change. While the Legislature did not define "minor" within the incest statute, it is reasonable to assume a legislative intent to provide the maximum degree of protection for stepchildren and their families while recognizing the difference between stepchildren and natural children and to construe the statute accordingly. For a sexual relationship between the latter to truly be consensual, the stepchild, of necessity, must be an adult. Thus, we reject the use of younger ages for minor children as found in other statutes we have listed and hold that for the crime of incest, any stepchild under the age of 19 is a minor. Thus, we hold that § 43-2101 defines "minor" as a person under 19 years of age for purposes of the incest statute, § 28-703.

Further support for § 43-2101 being applicable to the incest statute is found in its location in the statutes. Even though § 43-2101 is not contained in the criminal code, it is in the chapter entitled "Infants and Juveniles," and it is well known that the juvenile code has as its overriding concern the child's best interests. That chapter also provides the definition of stepparent that is applicable to the incest statute. See Judiciary Committee Hearing, L.B. 89, 89th Leg., 1st Sess. 43 (Jan. 30, 1985). It is appropriate for the term "minor" to be defined as under the age of 19 for purposes of the incest statute, as it is in the child's best interests to be protected from incest by a stepparent until adulthood.

State v. Johnson, 12 Neb.App. 247, 259-60, 670 N.W.2d 802, 813 (2003).

The Court of Appeals therefore concluded that the instruction given by the district court correctly stated the law and that the instruction proposed by Johnson did not correctly state the law. The Court of Appeals rejected all of Johnson's remaining assignments of error and affirmed his conviction. We granted Johnson's petition for further review.

ASSIGNMENTS OF ERROR

Johnson asserts that the Court of Appeals erred in rejecting his arguments that the district court had erred in (1) overruling his motion for directed verdict for the reason that the State failed to make a prima facie showing of all the elements of its case and for the further reason that § 28-703, the statute upon which the charge was based, is unconstitutionally vague; (2) allowing the State to amend the information; (3) overruling his motion for mistrial; (4) refusing to grant him a new arraignment after the information was amended; (5) overruling his objection to jury instruction No. 4; and (6) refusing to give his proposed jury instruction.

STANDARD OF REVIEW

Interpretation of a statute presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).

ANALYSIS

Constitutionality of § 28-703.

We first consider Johnson's assertion that § 28-703 is unconstitutionally vague in its...