State v. Kipf, No. 88-974

CourtSupreme Court of Nebraska
Writing for the CourtHASTINGS; CAPORALE; HASTINGS; BOSLAUGH
Citation450 N.W.2d 397,234 Neb. 227
Docket NumberNo. 88-974
Decision Date19 January 1990
PartiesSTATE of Nebraska, Appellee, v. Robert L. KIPF, Appellant.

Page 397

450 N.W.2d 397
234 Neb. 227
STATE of Nebraska, Appellee,
v.
Robert L. KIPF, Appellant.
No. 88-974.
Supreme Court of Nebraska.
Jan. 19, 1990.

Page 400

Syllabus by the Court

1. Constitutional Law: Statutes: Presumptions. Statutes are afforded a presumption of constitutionality, and the unconstitutionality of a statute must be clearly established before the Nebraska Supreme Court may declare it void.

2. Constitutional Law: Criminal Law: Statutes. The Nebraska Supreme Court is required to construe a penal statute so as to give it an interpretation which meets constitutional requirements if such can reasonably be done.

3. 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.

4. Constitutional Law: Criminal Law: Statutes: Presumptions: Legislature. While, in affording legislative enactments a presumption of constitutionality, the Nebraska Supreme Court construes penal statutes strictly, it nonetheless gives them a sensible construction in the context of the object the Legislature sought to accomplish, the evils and mischiefs it sought to remedy, and the purpose it sought to serve.

5. Constitutional Law: Criminal Law: Due Process: Statutes. To meet the due process requirements of the federal and Nebraska Constitutions, a penal statute must define the proscribed conduct with sufficient clarity so as to provide a person of ordinary intelligence with fair notice of exactly what is forbidden and so as not to permit arbitrary and discriminatory enforcement.

[234 Neb. 228] 6. Statutes: Words and Phrases. Words grouped in a list should be given related meaning.

7. Statutes: Telecommunications: Obscenity: Words and Phrases. A telephone harassment statute deals with different concerns than do statutes which seek to control literary or artistic content; it would be foolish indeed to attempt to determine whether a sensual telephone conversation had a redeeming social value by possessing serious literary, artistic, political, or scientific content; thus, the definition of obscene in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), reh'g denied 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128, does not apply to a telephone harassment statute.

8. Criminal Law: Intent: Words and Phrases. Intent is the state of mind operative at the time of an action and may be inferred from the words and acts of an accused and from the facts and circumstances surrounding the conduct.

9. Criminal Law: Intent: Words and Phrases. In the context of a criminal statute, that which is done willfully or purposefully, rather than accidentally or involuntarily, is done intentionally.

10. Constitutional Law: Statutes. Article I, § 5, of the Nebraska Constitution, providing that every person "may freely speak ... being responsible for the abuse of that liberty," does not provide any greater protection regarding the overbreadth of statutes than does the 1st amendment to the U.S. Constitution, which prohibits the Congress and, through the 14th amendment, the several states from making any law "abridging the freedom of speech."

11. Constitutional Law: Statutes: Standing. The first amendment doctrine of substantial overbreadth provides an exception to the traditional rule of standing.

12. Constitutional Law: Statutes: Standing. Under the overbreadth doctrine, an individual whose own speech or conduct may be prohibited is permitted to

Page 401

challenge a statute on its face because it also threatens others not before the court--those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.

13. Constitutional Law: Statutes. A statute may be invalidated on its face only if its overbreadth is "substantial," i.e., when the statute is unconstitutional in a substantial portion of cases to which it applies.

14. Constitutional Law: Statutes. In order to prevail upon a facial attack to the constitutionality of a statute, the challenger must show either that every application of the statute creates an impermissible risk of suppression of ideas or that the statute is "substantially" overbroad, which requires the court to find a realistic danger that the statute itself will significantly compromise recognized first amendment protections of parties not before the court.

15. Constitutional Law: Statutes: Standing. A litigant must show that the statute is substantially overbroad before he or she is deemed to have standing to challenge it on the ground it is unconstitutional with respect to a hypothetical party.

16. Constitutional Law: Statutes. A statute is unconstitutionally overbroad and thus offends the first amendment if, in addition to forbidding speech or conduct which is not constitutionally protected, it also prohibits the exercise of constitutionally protected speech.

[234 Neb. 229] 17. Constitutional Law: Statutes. In order for a statute which regulates the content of speech which is protected by the first amendment to withstand constitutional challenge, the government must show that the regulation is necessary to serve a compelling state interest and that the statute is narrowly drawn to achieve that end.

18. Constitutional Law: Statutes. Generally, statements may not be punished merely because they are profane and therefore offensive to listeners, unless substantial privacy interests are at stake.

19. Constitutional Law: Statutes. That speech is directed toward a captive audience, one which cannot easily avoid exposure to the speech, is a factor to be considered in favor of allowing restriction on the expression.

20. Criminal Law: Telecommunications: Intent. Neb.Rev.Stat. § 28-1310(1)(b) (Reissue 1985) proscribes only telephone calls made with the intention of causing mental discomfort by the use of language which conjures up repugnant sexual images or which suggests the performance of repugnant sexual acts.

21. Presumptions: Words and Phrases. A presumption is an assumption of fact made from another fact or group of facts found or otherwise established.

22. Trial: Evidence: Proof: Words and Phrases. Prima facie proof is evidence sufficient to submit an issue to the fact finder and precludes a directed verdict on the issue.

23. Trial: Evidence. The concept of prima facie evidence is usually one for the trial judge to use in determining if there is sufficient evidence to send the case to the jury.

24. Trial: Presumptions: Evidence: Proof. A presumption is utilized by the fact finder, whereas prima facie evidence or proof and, correspondingly, a prima facie case, are utilized by a court for the legal determination whether a matter, including a particular issue or an entire case, is submissible for determination to the fact finder notwithstanding a request for a directed verdict, or even dismissal, in an action.

25. Criminal Law: Due Process: Proof. Due process in a criminal case requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged against the defendant.

26. Criminal Law: Due Process: Proof: Presumptions. The due process requirement of the State's burden of proof beyond a reasonable doubt in criminal cases prohibits the State from using evidentiary presumptions that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.

Page 402

27. Intent: Words and Phrases. The intent involved in conduct is a mental process and may be inferred from the conduct itself, the actor's language in reference to the conduct, and the circumstances surrounding an incident.

28. Trial: Jurors. Jurors shall be permitted to take notes if, and only if, the parties agree, outside the jury's presence, (1) that jurors may, but need not, take notes and (2) that such notes as are taken may be used during the jury's deliberations but not preserved for review on appeal; rather, the notes shall be treated as confidential between the juror making them and the other jurors.

29. Trial: Jurors. In the event the parties agree to the taking of notes by jurors, the trial judge shall ensure the confidentiality of the notes during the course of [234 Neb. 230] trial and the jury's deliberations and shall cause the notes to be destroyed immediately upon return of the verdict.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays, for appellant.

Robert M. Spire, Atty. Gen., and Terri M. Weeks, for appellee.

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

CAPORALE, Justice.

I. INTRODUCTION

Defendant, Robert L. Kipf, was convicted in the county court of intimidation by telephone call, a Class III misdemeanor, in violation of Neb.Rev.Stat. § 28-1310(1)(b) (Reissue 1985), which conviction was affirmed by the district court. In his appeal to this court, Kipf assigns 18 errors, which can be summarized as claiming that the district court erred by failing to find the county judge erred (1) in failing to sustain Kipf's motion to quash the complaint on the ground the subject statute is unconstitutional and by subsequently mischarging the jury in reliance upon the statute's unconstitutional language and (2) in permitting the jurors to take notes during the course of the trial for use during their deliberations and in refusing to preserve the notes for review. We reverse and remand for a new trial.

II. BACKGROUND

The challenged portions of § 28-1310 provide:

(1) A person commits the offense of intimidation by phone call if with intent to terrify, intimidate, threaten, harass, annoy, or offend, he:

....

(b) Telephones another and uses indecent, lewd, [234 Neb. 231] lascivious, or obscene language or suggests any indecent, lewd, or lascivious act ...

....

(2) The use of indecent, lewd, or obscene...

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57 practice notes
  • City of Bellevue v. Lorang, No. 67488-4.
    • United States
    • United States State Supreme Court of Washington
    • February 3, 2000
    ...Inc. v. City of Tukwila, 117 Wash.2d 382, 390, 816 P.2d 18 (1991). 4. Lorang, 92 Wash.App. at 195, 963 P.2d 198 (quoting State v. Kipf, 234 Neb. 227, 234, 450 N.W.2d 397 5. The exceptions include discrimination based on a "nonspeech" element, R.A.V., 505 U.S. at 386, 112 S.Ct. 2538; seconda......
  • Young v. State, No. F-98-703.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • September 6, 2000
    ...P.2d 1383, 1386-1387; see also State v. Williams, 80 Ohio App.3d 648, 653, 610 N.E.2d 545, 548 (Ohio App. 9 Dist. 1992); State v. Kipf, 234 Neb. 227, 254, 450 N.W.2d 397, 415 (Neb.1990); United States v. Maclean, 578 F.2d 64, 65-66 (3rd Cir. 1978)(when jurors are allowed to take notes into ......
  • State v. Whited, No. E2013–02523–SC–R11–CD
    • United States
    • Supreme Court of Tennessee
    • November 7, 2016
    ...644, 646 (8th Cir. 2002) ; Wiegand , 812 F.2d at 1244 ; Schmitt v. State , 590 So.2d 404, 410 (Fla. 1991) ; 506 S.W.3d 431State v. Kipf , 234 Neb. 227, 450 N.W.2d 397, 404 (1990).While defining the term "lascivious" in the abstract is fairly straightforward, determining whether certain mate......
  • Dugan v. State, S-18-0296
    • United States
    • United States State Supreme Court of Wyoming
    • November 6, 2019
    ...1376, 283 Cal. Rptr. 81, 85 (1991) (refusing to apply Miller definition of obscene to telephone harassment statute); State v. Kipf, 234 Neb. 227, 450 N.W.2d 397, 404-05 (1990) (same). We agree with this rationale.¶33] The punishment of obscenity under laws that regulate pure speech is much ......
  • Request a trial to view additional results
57 cases
  • City of Bellevue v. Lorang, No. 67488-4.
    • United States
    • United States State Supreme Court of Washington
    • February 3, 2000
    ...Inc. v. City of Tukwila, 117 Wash.2d 382, 390, 816 P.2d 18 (1991). 4. Lorang, 92 Wash.App. at 195, 963 P.2d 198 (quoting State v. Kipf, 234 Neb. 227, 234, 450 N.W.2d 397 5. The exceptions include discrimination based on a "nonspeech" element, R.A.V., 505 U.S. at 386, 112 S.Ct. 2538; seconda......
  • Young v. State, No. F-98-703.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • September 6, 2000
    ...P.2d 1383, 1386-1387; see also State v. Williams, 80 Ohio App.3d 648, 653, 610 N.E.2d 545, 548 (Ohio App. 9 Dist. 1992); State v. Kipf, 234 Neb. 227, 254, 450 N.W.2d 397, 415 (Neb.1990); United States v. Maclean, 578 F.2d 64, 65-66 (3rd Cir. 1978)(when jurors are allowed to take notes into ......
  • State v. Whited, No. E2013–02523–SC–R11–CD
    • United States
    • Supreme Court of Tennessee
    • November 7, 2016
    ...644, 646 (8th Cir. 2002) ; Wiegand , 812 F.2d at 1244 ; Schmitt v. State , 590 So.2d 404, 410 (Fla. 1991) ; 506 S.W.3d 431State v. Kipf , 234 Neb. 227, 450 N.W.2d 397, 404 (1990).While defining the term "lascivious" in the abstract is fairly straightforward, determining whether certain mate......
  • Dugan v. State, S-18-0296
    • United States
    • United States State Supreme Court of Wyoming
    • November 6, 2019
    ...1376, 283 Cal. Rptr. 81, 85 (1991) (refusing to apply Miller definition of obscene to telephone harassment statute); State v. Kipf, 234 Neb. 227, 450 N.W.2d 397, 404-05 (1990) (same). We agree with this rationale.¶33] The punishment of obscenity under laws that regulate pure speech is much ......
  • Request a trial to view additional results

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