State v. Perina

• Decision Date: 07 October 2011
• Docket Number: No. S–09–1021.,S–09–1021.
• Citation: 282 Neb. 463,804 N.W.2d 164
• Parties: STATE of Nebraska, appellee,v.Arthur P. PERINA, appellant.
• Court: Nebraska Supreme Court

282 Neb. 463

804 N.W.2d 164

STATE of Nebraska, appellee,

v.Arthur P. PERINA, appellant.

No. S–09–1021.

Supreme Court of Nebraska.

Oct. 7, 2011.

Syllabus by the Court

1. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitutionality and construction of a statute are questions of law, regarding which an appellate court is obligated to reach conclusions independent of those reached by the court below.

2. Criminal Law: Statutes: Legislature: Intent. When construing a criminal statute, the existence of a criminal intent is regarded as essential, even though the terms of the statute do not require it, unless it clearly appears that the Legislature intended to make the act criminal without regard to the intent with which it was done.

3. Criminal Law: Statutes: Intent. If a criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy; where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person; where the penalty is relatively small; where the conviction does not gravely besmirch; where the statutory crime is not taken over from the common law; and where legislative purpose is supporting, the statute can be construed as one not requiring criminal intent.

4. Criminal Law: Due Process: Proof. Due process protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.

5. Due Process: Intent. Due process is not violated merely because mens rea is not a required element of a prescribed crime.

6. Constitutional Law: Statutes. A motion to quash is the proper method to challenge the constitutionality of a statute.

7. Constitutional Law: Statutes: Pleas. Challenges to the constitutionality of a statute as applied to a defendant are properly preserved by a plea of not guilty.

8. Homicide: Motor Vehicles: Public Policy: Intent: Proof. Misdemeanor motor vehicle homicide is a public welfare offense which does not require proof of mens rea.

Andrew J. Wilson, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellant.Jon Bruning, Attorney General, and Nathan A. Liss for appellee.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ., and CASSEL, Judge.GERRARD, J.

The Nebraska Criminal Code provides that “[a] person who causes the death of another unintentionally while engaged in the operation of a motor vehicle in violation of the law of the State of Nebraska or in violation of any city or village ordinance commits motor vehicle homicide.” ¹ The appellant, Arthur P. Perina, challenges that provision on the ground that it criminalizes negligent acts.

BACKGROUND

Joshua Wayland was killed in a traffic accident caused when a dump truck driven by Perina ran a red light at the intersection of Highways 50 and 370 in Sarpy County, Nebraska. Perina was driving north on Highway 50, in heavy rain, and was unable to stop when the traffic light changed at the Highway 370 off ramp. Wayland was turning south onto Highway 50 from the off ramp, and Perina's truck struck Wayland's car on the driver's side. Wayland died as a result of the injuries he sustained in the accident. Perina's blood alcohol test was negative, and there is no indication that alcohol or drugs were a contributing factor to the accident.

Perina was charged with one count of motor vehicle homicide, ² a Class I misdemeanor, and one count of violation of a traffic control device,³ a traffic infraction. Motor vehicle homicide is punishable by up to 1 year's imprisonment, a $1,000 fine, or both. ⁴ Perina filed a motion to quash the motor vehicle homicide charge, asserting that § 28–306 was unconstitutional because it violated his right to due process. At the hearing on the motion, the court asked Perina's counsel whether he was making a facial challenge to the statute. Counsel explained:

The specific claim that we're making that [Perina's] due process right is being violated is that the statute, motor vehicle homicide statute, criminalizes mere negligence. It doesn't define what level of negligence is involved. It just simply makes it a criminal act when one violates a traffic offense and a death results from that, and that's the challenge. So it's on its face.The county court rejected Perina's constitutional argument and overruled his motion to quash. Perina pled not guilty to both charges, and a bench trial was held on a stipulated record. Perina renewed his constitutional challenge, and it was again overruled. Perina was convicted of both charges and sentenced to 24 months' probation and fines totaling $1,025. Perina appealed, reasserting his constitutional claim in the district court. But the district court affirmed Perina's convictions and sentence. Perina appealed and filed a petition to bypass the Nebraska Court of Appeals, which we granted.

ASSIGNMENT OF ERROR

Perina assigns that the district court erred by affirming the county court's denial of his motion to quash based upon the unconstitutionality of § 28–306.

STANDARD OF REVIEW

The constitutionality and construction of a statute are questions of law, regarding which we are obligated to reach conclusions independent of those reached by the court below.⁵

ANALYSIS

We begin by noting a dispute between the parties about whether Perina is challenging § 28–306 facially or as applied. A challenge to a statute asserting that no valid application of the statute exists because it is unconstitutional on its face is a facial challenge.⁶ But a plaintiff can only succeed in a facial challenge by establishing that no set of circumstances exists under which the act would be valid, i.e., that the law is unconstitutional in all of its applications.⁷ The State argues that in this case, Perina's facial challenge clearly fails, because even if it is conceded that § 28–306 unconstitutionally criminalizes negligence, there would remain circumstances not involving simple negligence in which the statute could be constitutionally applied. And furthermore, the State argues, Perina has waived an “as-applied” challenge by not raising it below. We disagree with the State's contentions. But explaining why will require an examination of the theoretical underpinnings of Perina's argument.

Perina's constitutional argument is based on the principles articulated by the U.S. Supreme Court in Morissette v. United States.⁸ In Morissette, the defendant was convicted of violating 18 U.S.C. § 641 (2006), which provided, then as now, that “[w]hoever embezzles, steals, purloins, or knowingly converts” U.S. government property is punishable by fine or imprisonment. The defendant had found spent bomb casings in a rural area of Michigan and salvaged them. He explained that he had no intention of stealing anything, but thought the property had been abandoned. Nonetheless, he was convicted, because the trial court determined that the statute required no element of criminal intent and that any necessary intent could be presumed from the defendant's act. The U.S. Supreme Court ultimately disagreed, explaining:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory “But I didn't mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.⁹

The Court reasoned that as the common law of crimes had been codified, even if the statute was silent regarding mens rea, courts had “assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation.” ¹⁰ However, the Court recognized the principle that some crimes, which became known as public welfare offenses, can involve no mental element, “but consist only of forbidden acts or omissions.” ¹¹ Indeed, the Court had already explained in United States v. Balint

12 that

in the prohibition or punishment of particular acts, the State may in the maintenance of a public policy provide “that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.” Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se. But the Morissette Court clarified that such offenses did not arise from the common law, instead having been created because of changing social circumstances that required new duties and crimes that did not require any ingredient of intent. For instance, the Court noted:

The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations...