State v. Katzman

• Citation: 424 N.W.2d 852,228 Neb. 851
• Decision Date: 17 June 1988
• Docket Number: No. 87-573,87-573
• Parties: STATE of Nebraska, Appellee, v. William M. KATZMAN, Appellant.
• Court: Supreme Court of Nebraska

Page 852

424 N.W.2d 852

228 Neb. 851

STATE of Nebraska, Appellee, v. William M. KATZMAN, Appellant.

No. 87-573.

Supreme Court of Nebraska.

June 17, 1988.

Syllabus by the Court

1. Motions for New Trial: Appeal and Error. The granting or refusal of a motion for new trial is left to the sound discretion of the trial court, and in the absence of an abuse of that discretion, the determination will not be disturbed on appeal.

2. Motions to Dismiss: Evidence. On a defendant's motion to dismiss, the State is entitled to have all its relevant evidence accepted or treated as true, every controverted fact as favorably resolved for the State, and every beneficial inference reasonably deducible from the evidence.

3. Criminal Law: Directed Verdict. In a criminal case a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged, or evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

4. Motions for Continuance: Appeal and Error. This court will not reverse an order granting or refusing a continuance except where there has been an abuse of discretion by the trial court.

5. Trial: Evidence: Appeal and Error. It is within the court's discretion to admit or exclude evidence, and such rulings on the evidence will be upheld upon appeal absent an abuse of discretion.

6. Sentences: Appeal and Error. A sentence imposed within the limits prescribed by the statute in question will not be disturbed on appeal in the absence of an abuse of discretion.

7. Constitutional Law: Prosecuting Attorneys: Discrimination. To support a defense of selective or discriminatory prosecution, the defendant must show not only that others similarly situated have not been prosecuted but that the selection of the defendant for prosecution has been invidious or in bad faith, based upon considerations such as race, religion, or the desire to prevent his exercise of his constitutional rights.

8. Discrimination: Presumptions: Proof. A discriminatory purpose will not be presumed; there must be a showing of clear and intentional discrimination.

9. Criminal Law: Evidence: Other Acts. Generally, it is a matter left to the discretion of the trial court as to whether the prior offenses are sufficiently similar to the one charged in the case on trial so that evidence thereof has probative value.

Gregory M. Schatz of Stave, Coffey, Swenson, Jansen, & Schatz, P.C., Omaha, for appellant.

Robert M. Spire, Atty. Gen., and William L. Howland, Lincoln, for appellee.

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

HASTINGS, Chief Justice.

The defendant, William M. Katzman, was found guilty by a jury in the district court of five counts of false swearing to an initiative or referendum petition contrary to the provisions of Neb.Rev.Stat. § 32-713 (Reissue 1984). He assigns as error that (1) the statutory scheme under which he was convicted is unconstitutionally vague and overbroad; (2) his equal protection rights had been denied because of "arbitrary selection" of him by the prosecutor in filing charges; (3) his motion for a continuance was denied; (4) certain evidence was incorrectly admitted; (5) the evidence was insufficient to support a conviction; and (6) improper terms of the conditions of probation were imposed. We affirm.

Katzman was a member of Lottery Consultants of Nebraska, Inc., in March of 1986, which organization was retained to aid in a petition drive to place the issue of a state wide lottery on the general election ballot in November of 1986. It was required by law that circulators of the petitions be registered voters of the county in which the petition signers resided. In addition, it was required by Neb.Rev.Stat. § 32-705 (Cum.Supp.1986) that the circulator of each petition sign an affidavit swearing to the authenticity of each signature obtained on a petition. Section 32-713 provided that any person "who shall falsely swear to any signature upon any such petition" shall be guilty of a Class IV felony.

In spite of the claim of insufficiency of the evidence, there seems to be little dispute as to the pertinent facts. Katzman himself testified that he "whited out" the name of the county on the top of petitions which had the wrong county written in. Another witness testified that Katzman was also whiting out circulator signatures and that he had asked one of his (Katzman's) employees to sign some Douglas County petitions since the employee was a registered voter in Douglas County. Katzman himself testified that he re-signed petitions on the circulator line after the previous circulator's signature was whited out, because the previous circulator was not a registered voter in the county and he was.

The activities that led to the charges against Katzman took place on July 3, 1986, the day of the deadline for the return of the petitions. On that day, Katzman instructed two of his employees to take some unsigned or "whited out" petitions to one of H & Z Vending's clients, Jane Janssen, a bar owner registered as a voter in Sarpy County, so that she, the bar owner, could sign as a circulator. H & Z Vending was a business involved with the ownership and distribution of video lottery machines, in which Katzman had an interest. It was these unlawfully signed petitions which led to the filing of five counts of false swearing against Katzman.

The district court found that certain provisions of the statutes previously mentioned were unconstitutional: the requirement that circulators swear that they are registered and qualified voters; the provision that requires circulators to swear "that each petitioner when he or she signed this petition was a legal and qualified voter of the state and county and qualified to sign the same"; and the provision prohibiting the payment of circulators. However, the court held that these unconstitutional provisions were severable and that the section of the statute which was the gravamen of the State's complaint, namely, the requirement that a circulator swear that the petition signers signed in his presence, was constitutionally sound. Accordingly, the trial court, prior to trial, had overruled Katzman's motion to quash the information against him, and, following the conviction, the court also overruled the motion for a new trial and the motion in arrest of judgment.

In our review of this case, we are governed by the following general rules of law:

The granting or refusal of a motion for new trial is left to the sound discretion of the trial court, and in the absence of an abuse of that discretion, the determination will not be disturbed on appeal. State v. Cottingham, 226 Neb. 270, 410 N.W.2d 498 (1987).

On a defendant's motion to dismiss, the State is entitled to have all its relevant evidence accepted or treated as true, every controverted fact as favorably resolved for the State, and every beneficial inference reasonably deducible from the evidence. State v. Lane, 227 Neb. 687, 419 N.W.2d 666 (1988).

In a criminal case a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged, or evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained. Id.

This court will not reverse an order granting or refusing a continuance except where there has been an abuse of discretion by the trial court. State v. Carter, 226 Neb. 636, 413 N.W.2d 901 (1987).

It is within the court's discretion to admit or exclude evidence, and such rulings on the evidence will be upheld upon appeal absent an abuse of discretion. State v. Lenz, 227 Neb. 692, 419 N.W.2d 670 (1988).

A sentence imposed within the limits prescribed by the statute in question will not be disturbed on appeal in the absence of an abuse of discretion. State v. Costanzo, 227 Neb. 616, 419 N.W.2d 156 (1988).

With respect to the defendant's first assignment of error, i.e., that the statutory scheme under which he was convicted is unconstitutionally vague and overbroad, all of defendant's contentions in that regard are considered, discussed, and decided adversely to the defendant in State v. Monastero, 228 Neb. 818, 424 N.W.2d 837 (1988), decided today.

Katzman's pretrial motion to dismiss the information on the basis of a violation of equal protection rights because of alleged selective prosecution was denied. He insists that the evidence disclosed that the prosecutor's motive in charging Katzman was Katzman's video lottery game business interests. The State simply argues that Katzman was instrumental in the petition drive and that the prosecutor's selection of Katzman for prosecution was therefore warranted.

The general rule regarding prosecutorial discretion in law enforcement is that, unless there is proof that a particular prosecution was motivated by an unjustifiable standard based, for example, on race or religion, the use of such discretion does not violate constitutional protections. State v. Sprague, 213 Neb. 581, 330 N.W.2d 739 (1983); State v. Bartlett, 210 Neb. 886, 317 N.W.2d 102 (1982); State v. Long, 206 Neb. 446, 293 N.W.2d 391 (1980). This means that in order to establish arbitrary discrimination inimical to constitutional equality, there must be more than an intentional and repeated failure to enforce legislation against others as it is sought to be enforced against the person claiming discrimination. Long, supra; Arrigo v. City of Lincoln, 154 Neb. 537, 48 N.W.2d 643 (1951). Also, there must be more than a showing that a law or ordinance has not been enforced against others and that it is sought to be enforced against the person claiming discrimination. Long, supra; City of Omaha v. Lewis & Smith Drug Co., Inc., 156 Neb. 650, 57 N.W.2d 269 (1953). To support a defense of selective or discriminatory prosecution, the...