State v. Ruzicka

• Decision Date: 02 November 1984
• Docket Number: No. 84-325,84-325
• Citation: 357 N.W.2d 457,218 Neb. 594
• Parties: STATE of Nebraska, Appellee, v. Donald E. RUZICKA, Appellant.
• Court: Nebraska Supreme Court

Page 457

357 N.W.2d 457

218 Neb. 594

STATE of Nebraska, Appellee, v. Donald E. RUZICKA, Appellant.

No. 84-325.

Supreme Court of Nebraska.

Nov. 2, 1984.

Syllabus by the Court

1. Statutes. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.

2. Statutes: Constitutional Law. This court does not sit as a superlegislature to review the wisdom of legislative acts.

3. Statutes: Constitutional Law: Public Purpose: Equal Protection. All reasonable intendments must be indulged to support the constitutionality of legislative acts, including classifications adopted by the Legislature. If the classification of persons singled out by the legislation is reasonable and not arbitrary, and is based on substantial differences having a reasonable relation to the persons dealt with and the public purpose to be achieved, it meets the constitutional test of equal protection.

4. Constitutional Law: Equal Protection. Neb.Rev.Stat. § 28-802 (Reissue 1979) does not violate the constitutional guarantee of equal protection.

5. Constitutional Law: Criminal Law. The eighth amendment to the U.S. Constitution prohibits punishment which is grossly disproportionate to the severity of the crime.

6. Constitutional Law: Criminal Law. Neb. Const. art. I, § 9, prohibiting "cruel and unusual" punishment, does not abridge the Legislature's power to select such punishment as it deems most effective in the suppression of crime, provided the punishment is not grossly disproportionate to the crime.

7. Sentences: Appeal and Error. A sentence will not be set aside if it is within the statutory limits, absent an abuse of discretion by the trial court.

8. Trial: Evidence: Convictions. The improper admission of cumulative evidence constitutes nonreversible harmless error where there is other competent evidence sufficient to support the conviction.

9. Trial: Evidence: Presumptions: Appeal and Error. In a case tried to the court without a jury, there is a presumption that the trial court, in reaching its decision, considered only evidence that is competent and relevant. In such a case this court will not overturn such a decision where there is sufficient material, competent, and relevant evidence to sustain the judgment.

10. Verdicts: Appeal and Error. A verdict of guilty will not be overturned on appeal unless it is so lacking in probative force that it can be said as a matter of law that the evidence is insufficient to support it.

11. Preliminary Hearings: Proof. The standard of proof at a preliminary hearing requires only that the evidence establish that a crime has been committed and that there is probable cause to believe that the accused committed it.

Patrick A. Brock of Cunningham, Blackburn, VonSeggern, Livingston, Francis & Riley, Grand Island, for appellant.

Paul L. Douglas, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ., and COLWELL, D.J., Retired.

CAPORALE, Justice.

Defendant, Donald E. Ruzicka, appeals from his conviction, following a nonjury trial, of pandering, and from the sentence of 18 months' probation with confinement in the county jail for the first 60 days and final 30 days of the probationary period. He urges that the pandering statute is unconstitutional, that the trial court erred in admitting certain evidence, that the evidence is not sufficient to support his conviction, and that his plea in abatement should have been sustained. We find no error and affirm.

Neb.Rev.Stat. § 28-802 (Reissue 1979) provides that one commits pandering if, among other things, he agrees to receive money for procuring one to commit an act of prostitution. Neb.Rev.Stat. § 28-801(1) (Reissue 1979) provides in part: "Any person who performs, offers, or agrees to perform any act of sexual penetration, as defined in subdivision (5) of section 28-318, with any person not his spouse in exchange for money or other thing of value commits prostitution." At the relevant time, sexual penetration was defined in Neb.Rev.Stat. § 28-318(5) (Reissue 1979), now § 28-318(6) (Cum.Supp.1984), as

sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the actor's body or any object manipulated by the actor into the genital or anal openings of the victim's body which can be reasonably construed as being for nonmedical or nonhealth purposes. Sexual penetration shall not require emission of semen.

Ruzicka's first constitutional attack, that the act is impermissibly vague, may be disposed of quickly. We have said:

A penal statute creating an offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. Any statute which forbids the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning, and differ as to its application, violates the first essential of due process of law.

State v. Adkins, 196 Neb. 76, 80, 241 N.W.2d 655, 658 (1976).

However, it is well established that "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); State v. Frey, 218 Neb. 558, 216 N.W.2d 357 (1984); State v. Sprague, 213 Neb. 581, 330 N.W.2d 739 (1983). As will be seen from the discussion which follows, there is no doubt that Ruzicka was engaging in conduct which § 28-802 clearly proscribes. The evidence establishes that Ruzicka agreed to receive money for procuring two women to commit acts of prostitution. Ruzicka thus cannot complain that the statute failed to provide him with notice that his acts were unlawful.

Ruzicka's second constitutional assault contends that § 28-802 violates the equal protection guarantees in that the penalties for pandering, a Class IV felony punishable by imprisonment for not more than 5 years or a fine of $10,000, or both such fine and imprisonment, Neb.Rev.Stat. § 28-105 (Reissue 1979), and for prostitution, a Class V misdemeanor punishable by a maximum fine of $100, Neb.Rev.Stat. § 28-106 (Cum.Supp.1984), are too disparate. Ruzicka reasons that one who engages in prostitution actually engages in a sex crime, yet is subject only to a maximum $100 fine, while one who merely facilitates the sex crime is subject to a substantially higher fine and possible imprisonment. Since, in Ruzicka's eyes, prostitution is morally more reprehensible than the act of pandering, the difference in penalties, he argues, denies equal protection rights.

A review of the legislative history demonstrates that the Legislature does not agree with Ruzicka's assessment of the relative vileness of the two crimes. That history reveals that in enacting § 28-802 the Legislature intended to curtail the business of prostitution and thereby reduce commercialized vice. Concern was also expressed during the floor debate about the well-being and safety of those who were under the control of panderers. The statute was specifically aimed at discouraging prostitution by punishing panderers, whom the Legislature considered to be a major source of the problem. Floor Debate, L.B. 38, Judiciary Committee, 85th Leg., 1st Sess. (Apr. 1, 5, 19, 1977).

It is clear that the more severe penalty for the crime of pandering is reasonably and rationally related to the legitimate governmental purposes of protecting the public and suppressing commercialized vice. This court does not sit as a superlegislature to review the wisdom of legislative acts. Bridgeford v. U-Haul Co., 195 Neb. 308, 238 N.W.2d 443 (1976). Our statement in State v. Haynes, 192 Neb. 445, 448, 222 N.W.2d 358, 361 (1974), disposes of this second constitutional argument:

It is well established that all reasonable intendments must be indulged to support the constitutionality of legislative acts, including classifications adopted by the Legislature. If the classification of persons singled out by the legislation is reasonable and not arbitrary, and is based on substantial differences having a reasonable relation to the persons dealt with and the public purpose to be achieved, it meets the constitutional test of equal protection.

Section 28-802 does not violate the constitutional guarantee of equal protection.

In his third and final constitutional argument, Ruzicka contends that the penalty for pandering, authorized by § 28-802, is disproportionate to the severity of the crime and thereby amounts to cruel and unusual punishment, in violation of both the U.S. and state Constitutions. Again, Ruzicka relies on the disparity between the penalties for prostitution and for pandering.

The U.S. Supreme Court has explained in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), that the eighth amendment to the U.S. Constitution prohibits punishment which is grossly disproportionate to the severity of the crime. However,

in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.

Id. at 175, 96 S.Ct. at 2926.

We find nothing in article I, § 9, of our Constitution which imposes greater limits upon our Legislature. Indeed, we have held that the language of article I, § 9, prohibiting "cruel and unusual" punishment does not abridge the Legislature's power to select such punishment as it deems most effective in the suppression of crime. State v. Tucker, 183 Neb. 577, 162 N.W.2d 774 (1968).

Ruzicka has failed to meet the heavy burden imposed by Gregg v. Georgia. As we have seen, the Legislature chose a penalty for the crime of pandering...