State v. Shiffbauer

• Decision Date: 09 March 1977
• Docket Number: No. 40740,40740
• Citation: 251 N.W.2d 359,197 Neb. 805
• Parties: STATE of Nebraska, Appellee, v. William SHIFFBAUER, a/k/a Shifty, Jr., Appellant.
• Court: Nebraska Supreme Court

Page 359

251 N.W.2d 359

197 Neb. 805

STATE of Nebraska, Appellee, v. William SHIFFBAUER, a/k/a Shifty, Jr., Appellant.

No. 40740.

Supreme Court of Nebraska.

March 9, 1977.

Syllabus by the Court

1. The prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. All the Due Process Clause requires is that the law give sufficient warning that men may conform their conduct so as to avoid that which is forbidden.

2. In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which defendant is charged.

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

4. Embedded in the traditional rules governing constitutional adjudication is that a person to whom a statute may be constitutionally applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in situations not before the court.

5. It is only where a higher crime fully embraces all the ingredients of a lesser offense, and when the evidence requires it, that an instruction on a lesser-included offense must be given on request.

6. The court, as a condition of its sentence, may require the offender to be confined periodically in the county jail or to return to custody after specified hours, but not to exceed 90 days.

7. It is a well-established principle that whether a proceeding be criminal or civil, the procedures and procedural rules to be applied are those which are in effect at the date of the hearing or proceeding and not those in effect when the act or violation is charged to have taken place.

Ronald J. Palagi, of Shrout, Christian, Krieger, Nestle & Palagi, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., Judy K. Hoffman, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

SPENCER, Justice.

Defendant, William Shiffbauer, was found guilty by a jury of knowingly or intentionally delivering a substance which he represented to be a controlled substance but which was not in fact such a substance. He was sentenced to 1 year probation and 60 days imprisonment in the Douglas County jail was imposed as one of the conditions of probation. Defendant appealed, alleging four assignments of error: (1) Section 28-4,125(7), R.R.S.1943, under which he was charged, is violative of fundamental principles of due process; (2) the evidence is insufficient to sustain the verdict; (3) the trial court refused to instruct the jury as to a lesser offense; and (4) the trial court erred in making a 60-day period of imprisonment a condition of probation. We affirm.

On the night of June 16, 1975, an undercover agent established contact with the defendant in Omaha. The undercover agent told the defendant he wanted to buy some amphetamines. The defendant offered to sell the agent 100 tablets of dexedrine for $25. Dexedrine is a controlled substance under the Uniform Controlled Substances Act. The agent gave the defendant $25 and received a plastic bag full of white pills similar to aspirin tablets in return. The substance was analyzed by a research chemist. The tablets were caffeine, not dexedrine. Caffeine is not a controlled substance. The defendant was charged with knowingly or intentionally delivering a substance which he represented to be a controlled substance but which, in fact, was not such a substance, in violation of section 28-4,125(7), R.R.S.1943.

The defendant on this appeal challenges the constitutionality of section 28-4,125(7), R.R.S.1943. That subsection is a part of the Uniform Controlled Substances Act and provides: "(7) It shall be unlawful for any person to knowingly or intentionally deliver, distribute, or dispense a substance that such person expressly or implicitly represents to be a controlled substance but which is not in fact such a substance. Any person violating the provisions of this subsection shall be guilty of a felony and shall, upon conviction thereof, be punished by a fine of not more than two thousand dollars, or by imprisonment in the Nebraska Penal and Correctional Complex for not less than one year nor more than five years, or by both such fine and imprisonment."

The Nebraska Uniform Controlled Substances Act was adopted in 1971. It was modeled after the Federal Comprehension Drug Abuse, Prevention, and Control Act of 1970, and the Uniform Controlled Substances Act which are essentially identical. In 1974, subsection (7), the subsection involved here, was added to section 28-4,125, R.R.S.1943. There is no similar provision in the federal law nor in the Uniform Act. The legislative history demonstrates an intent to restrict the illegal traffic in controlled substances by making it criminal to sell any substance represented to be a controlled substance which is not.

This court stated in State v. Adkins, 196 Neb. 76, 241 N.W.2d 655 (1976): "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." But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. All the Due Process Clause requires is that the law give sufficient warning that men may conform their conduct so as to avoid that which is forbidden. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).

It is obvious the Legislature intended to make it unlawful to deliver a substance represented to be a controlled substance. "In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged." Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). See, also, State v. Guy, 196 Neb. 308, 242 N.W.2d 864 (1976), wherein it was stated: "Since this ordinance does not involve First Amendment rights, the challenge thereon on the ground of vagueness must be examined in the light of the facts at hand." The facts show defendant represented he was selling dexedrine, a controlled substance. This is clearly the type of activity made illegal by the statute.

The essential elements of the offense are: (1) That the defendant knowingly or intentionally deliver, distribute, or dispense a substance; (2) that the defendant expressly or implicitly represent the substance to be a controlled substance; and (3) that the substance is not, in fact, a controlled substance.

It is not necessary to decide whether "implicitly represents" is vague. It is undisputed that defendant made an express representation that he was selling a controlled substance. "One to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).

Defendant also lacks standing to challenge the statute on the ground of overbreadth. The fact that some innocent conduct, such as the dispensing of an uncontrolled substance by a physician or pharmacist, may come within the terms of the statute does not affect defendant. "Embedded in the traditional rules governing constitutional adjudication is that a person to whom a statute may be constitutionally applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in situations not before the court. Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830." State v. Brown, 191 Neb. 61, 213 N.W.2d 712 (1974).

Defendant's second assignment attacks the sufficiency of the evidence. Apparently the basis of his argument is that the statute under which he was convicted requires him to know the substance he sold was not a controlled substance. It is his contention the jury could not have reasonably inferred such knowledge and therefore he argues the evidence was insufficient to support the jury verdict. Defendant misinterprets the statute.

We doubt if the statute can be read to require that the defendant know the substance he sold was not a controlled substance if he actually represents it to be. The knowingly refers to his representation of the substance to be a controlled substance, not the fact he knows it is not. That question, however, is immaterial herein. The trial judge, over objection by the State, instructed the jury that in order to return a verdict of guilty it must find that the defendant knowingly or intentionally delivered a substance which he expressly or implicitly represented to be a controlled substance and which he knew as not a controlled substance.

There was evidence in the record that the defendant had been selling drugs for 8 years. There is direct testimony that the purchaser of the drugs was told by the defendant that the tablets were dexedrine, a controlled substance. There was testimony that the substance was actually caffeine. The defense called no witnesses to dispute any of this testimony.

Defendant's third assignment of a lesser-included offense relates to his position that he should have been charged with obtaining money under false pretenses. It is obvious that the court correctly refused the proposed instruction as the material elements of section 28-4,125(7), R.R.S.1943, do not encompass all the elements of the crime of obtaining money under false pretenses. That offense, as described in section 28-1207, R.R.S.1943, requires the intent to cheat or defraud. As stated in O'Bryan v. State, 111 Neb. 733, 197 N.W. 609 (1924): "Intent to cheat and defraud the persons wronged is, however, made an...