*1 L. appellant. Joseph Burke, appellee, Nebraska, 12, 1987. No. 86-809. Filed June *2 Donald B. Fiedler and Martin J. Kushner of Fiedler Law Offices, appellant. for Spire, Attorney General,
Robert M. Pawol, and Marie C. appellee. for
Krivosha, C.J., Boslaugh, White, Hastings, Caporale, Shanahan, Grant, and JJ.
Caporale, J. Following trial, defendant, a bench Joseph Burke, L. was adjudged guilty having violated Neb. Rev. Stat. 28-1463.03(1) (Reissue 1985), part a the Child Pornography Prevention adopted by Act as Laws, L.B. and codified as Neb. Rev. Stat. 28-1463.01 §§ through (Reissue 28-1463.05 1985), inclusive. Burke was serve of not less than nor more thereafter sentenced to a term Complex. and than 5 at the Nebraska Penal Correctional assigns He as error the district court’s appeals (1) participants were under determination constitutional, a (2) (3) the statute is offense constitutes felony, (4) mentally disordered Class III he is not sex (Burke supplemental offender. undertook to raise via a brief defective, imposed technically claim but sentence We appearing argument.) withdrew claim when for oral affirm. High, during investigation
Gerald of an of his course activities, Department informed the Lincoln that Burke Police large material, library pornographic owned a some of which passed was pornography. police child The Lincoln Division, along information which Omaha Police then investigation On undertook of Burke’s activities. November 12, 1985, High telephoned Burke from the Omaha Police arranged meeting Division at Burke’s home.
brought Sgt. along, posed Omaha Police John Beers who as a High. friend of
High copy tape High Burke asked to a videocassette which had an High tape himself filmed at earlier time. The shows males, years number of nude at least one of whom is under 16 age, displaying touching genitals, their each other’s unclothed genitals, masturbation, engaging sex, in oral-genital and and anal-genital simulated sex. High tape being copied,
While the was High asked to Burke play another tape videocassette for them watch. to Burke by complied playing tape movie, a commercial 8-millimeter Bill,” “Cousin which had in been filmed 1975 and transferred to tape videocassette tape at undisclosed time. This shows boys to approximately genitals, 13 displaying old their touching genitals, each other’s engaging unclothed and in masturbation, sex, oral-genital anal-genital During sex. process copying Bill,” tape watching “Cousin other monitoring officers who had been the conversation in the via microphone home a hidden on were Beers summoned home, into the and Burke was arrested. Ferber, 747, 102 3348,73
New York v. 458 U.S. S. Ct. L. Ed. constitutionality aof statute upholding (1982), in 2d 1113 sexual knowingly promoting from prohibited persons which distributing material by children performances nonobscene that even ruled performances, depicts such which first under the protection no entitled to pornography is child Constitution, the conduct provided the U.S. amendment law, as state by applicable defined adequately is prohibited holding, the U.S. In so authoritatively construed. or written compelling have a that states recognized Supreme Court well- psychological safeguarding physical in interest great entitled to therefore are being minors and that states children. depictions of pornographic leeway regulating mind, Judiciary Committee holding in the Ferber With 5, 1985), our (Mar. Leg., Sess. Hearing, L.B. 89th 1st provides: “It shall 28-1463.03(1), which enacted Legislature direct, make, knowingly publish, person for a be unlawful any depiction generate visual create, manner provide, or as one of its which has a child sexually explicit conduct portrayed or observers.” participants foregoing provision are in the employed the terms Some of 28-1463.02, time read: which at the relevant defined Act, Pornography Prevention the Child As used in requires: the context otherwise unless age of sixteen any person under the (1) Child shall mean years; touching person’s fondling mean
(2) Erotic shall area, genitals breasts if the pubic or unclothed or clothed female, person if the developing is a breast area child, real simulated overt purpose a female for the is gratification one or more or sexual stimulation of sexual fondling persons involved. Erotic shall not be construed to contact, affectionate, physical even if which not include purpose for the of real or simulated overt sexual gratification or sexual stimulation of one or more involved; persons
(3) nudity Erotic display shall mean the of the human genitals area, male or pubic female or the human female breasts, or the developing breast area of the human female child, for the purpose of real or simulated overt sexual gratification of the or sexual stimulation of one or more involved; persons or
(4) flagellation shall mean Sadomasochistic abuse in by upon person torture or or a clad nude costume, mask, undergarments, bizarre or the or fettered, bound, being of or otherwise condition physically predominantly restrained performed when interest; appeal to the morbid Sexually
(5) explicit (a) conduct shall mean: Real or intercourse, genital-genital, simulated whether oral- genital, anal-genital, persons between of the or oral-anal animal opposite same or sex or between human and an or genital [sic]; (b) with an artificial real or simulated masturbation; (c) real or simulated sadomasochistic abuse; fondling; nudity; (f) (d) (e) erotic erotic or real or purpose simulated defecation or urination for of the gratification sexual or sexual stimulation of one more involved; persons of the depiction
(6) performance Visual shall mean live photographic representation. error, assignment prove
The first the State failed age depicted tapes, easily the those the resolved. Although assigns error, such he Burke claimed failure as not issue in assigned discuss the his brief. Errors but not generally discussed will not be this court. State v. considered Bishop, 224 (1987); Lynch, Neb. N.W.2d (1986); Neb. Ct. R. of Prac. 9D(1)d (rev. 1986). foregoing
While the rule makes further consideration of assignment unnecessary, the perhaps first it should be noted ages that there in fact no proof concerning was failure of the the participants depicted police A tapes. report received in evidence reflects that all the he filmed described minors being ages “between of 13 16.” If all the minors depicted High tape age, were between 13 and 16 objected at least one of them had to be 16. While portions relevant,” “those report aren’t [of which] depicted as a participants was relevant critical element proof the State’s not within ambit of burden and thus *5 630 may questionable permit not objection. A defendant
Burke’s
objection, take
without
evidence to be admitted
incompetent
result,
and after
unfavorable
chance of a favorable
the
was received. See
complain that
the evidence
outcome
541,
State,
(1934).
N.W. 78
v.
127 Neb.
256
Vinciquerra
Similarly, Beers’
received in evidence without
report was
he were called as a
objection
stipulation
and under a
that if
witness,
report. The Beers
“probably
he
mirror” his
would
“Cousin Bill” as
report
participants
the
describes
A
age.”
party
of
who has
“approximately 10 to
on appeal
to
of
cannot
stipulated
the admission
evidence
complain
pursuant
about evidence admitted
and
Roggenkamp, 224
stipulation.
with the
State v.
accordance
914,
The trial court
properly
could
consider the contents
those
when
reports
looking
tapes.
at the
does not
This court
resolve
evidence,
credibility witnesses,
in the
pass
conflicts
on the
weigh
fact,
the evidence. Such matters
the trier of
are for
findings
of fact
and conclusions
the trier
must be
if,
State,
taking the view most
to the
sustained
favorable
there is
findings
those
support
sufficient evidence to
conclusions.
Brown,
418,
See,
(1987);
p.
State v.
ante
405 N.W.2d
El-Tabech,
395,
p.
(1987);
In his second Burke contends the entire act is overbroad in violation of the 1st, 5th, 9th, and 14th amendments to the U.S. Constitution vague and is violation the due process clauses of the 5th 14th to the U.S. amendments Constitution. He further maintains that the “analogous act offends the sections” of the Nebraska Constitution.
Our first task scope is to determine the of our analysis. Generally, this court will not consider challenge a constitutional in the absence of specification provision of the constitutional Meints, which is claimed to be violated. State v.
Neither of the two films in the record
portrayal
involves the
of a child as an
question
observer. The
answered,
first
to be
then, is whether
standing
question
Burke has
to
“portrayed
language
being
observer”
unconstitutionally
overbroad. The
traditional rule is that one to whom
may
applied
a statute
be
constitutionally
standing
does not
challenge
have
to
that statute
ground
on the
conceivably may
it
applied
be
unconstitutionally to others in situations not before the court.
Ferber,
747, 102
3348, 73
New Yorkv.
458 U.S.
S. Ct.
L. Ed. 2d
(1982);
Groves,
382,
1113
State v.
632 on rights prudential limitations
constitutional Ferber, supra. v. adjudication. New York constitutional However, rule is when a exception to the traditional made Ferber, supra; v. New York statute is overbroad. 672, (1987). 224 In such Copple, Neb. situation, rights others attack one is allowed assert though the behavior of of a statute even overbreadth may making clearly unprotected be and could the attack requisite with narrow a law drawn proscribed Arcades, 491, Inc., Spokane 472 U.S. specificity. Brockett v. 2794, Secretary Ed. (1985); 105 S. Ct. 86 L. 2d 394 Co., 2839, 947, 104 L. U.S. S. Ct. Md. v. J. H. Munson persons whose (1984). Ed. 2d 786 This is so because constitutionally expression is speech noncommercial protected may exercising rights for to refrain from their choose susceptible of criminal statute fear sanctions Ferber, supra. New v. application protected behavior. York However, merely where conduct and not noncommercial involved, speech must is the overbreadth the statute attacked well, only judged not be real but substantial as in relation to the Time, Inc., plainly legitimate sweep. Regan v. 468 U.S. statute’s 3262, (1984); S. Ed. 2d 487 York v. 104 Ct. L. New Ferber, Oklahoma, supra; U.S. Ct. Broadrick 93 S. 2908, 37L. Ed. 2d 830
Thus, determining standing challenge whether has “portrayed language grounds on of overbreadth observer” determining inextricably entwined with whether *7 a 28-1463.03(1) speech reaches substantial amount or § protected expression under the first amendment to the U.S. Overbreadth, Monaghan, Sup. Ct. Rev. Constitution. See 1, 3. necessary to
It therefore becomes
determine whether the
“portrayed
impermissibly
language
expands
observer”
the
application
28-1463.03(1), as
claims.
of§
constitutionality
affording presumption
legislative
In
enactments,
1160,
Krull, ___ U.S ___,
Illinois v.
S. Ct.
Edmunds,
380,
(1987),
94 Ed. 2d
L.
and State
211 Neb.
we,
construing penal
(1982),
Moreover,
susceptible
constructions,
where a statute is
of two
under one of which the statute is valid while under the other of
which the
be
statute would
unconstitutional or of doubtful
validity,
validity
that construction which results in
is
Evans,
adopted. State v.
Application foregoing of the compels rules the conclusion “portrayed language observer” applies only to the depictions visual persons observing of 16 sexually explicit conduct by as defined 28-1463.02. § That so, being questioned language portrayals does not reach the of children in nonpornographic settings; phrase “portrayed not, observer” therefore, render 28-1463.03(1) overbroad under the first amendment to the U.S. Constitution.
Burke next claims that 28-1463.03(1) impermissibly vague specify because it does not visually when the depicted participants or observers must have been less than 16 age, who, nor circumstances, in certain sexually must be gratified or depicted; makers, stimulated: those publishers, directors, creators, providers, generators depiction; of the the viewer. respect
With to this claim the standing traditional rule of is, applies; engaged one clearly who has in conduct which is prohibited questioned complain statute cannot that the vague applied statute is when to the conduct of others. New Ferber, supra; Copple, Yorkv. supra. question
There is no process but that to meet the due requirements of the 5th and 14th amendments to the U.S. Constitution, penal sufficiently statute must be clear so ordinary intelligence exactly has fair notice of what Lawson, 352, 103 conduct is forbidden. Kolender v. 461 U.S. S. *8 supra. Copple, 1855, 75 (1983); L. Ed. 2d 903 Ct. analysis, penal foregoing overbreadth noted in the As the context of given a sensible construction statute is and mischiefs the evils sought accomplished, be object to sought be served. remedied, purpose and the sought to be when the any doubt about there is suggestion The have been or observers must visually participants depicted say the least. The statute disingenuous, to age of 16is under the sexually explicit depiction question prohibits the “visual participants portrayed as one of its which has a child conduct “any 28-1463.02 as then defined § Child was observers.” Thus, years.” 28-1463.03(1) age of sixteen § under sexually explicit conduct depiction of prohibited the visual participants or age 16as one of its child under the which has a indicating anything In the portrayed observers. absence statutory given plain its and contrary, language is to Carlson, 223 Neb. 394 N.W.2d ordinary meaning. State v. ordinary meaning language of the plain The then depiction of one 28-1463.03(1) prohibited used in § sexually explicit participant in or observer 16 as conduct. sexually gratified to be about who is
Burke’s concern analysis of the Although, as the misplaced. also stimulated is demonstrates, tape “Cousin Bill” assignment error third conviction, the fact is that both supports the alone clearly which is depict Bill” conduct tape and “Cousin there existed sexual regard to whether prohibited without masturbation, namely, anyone, gratification or stimulation of High tape sex, anal-genital sex in the oral-genital and simulated sex, anal-genital sex in masturbation, oral-genital “Cousin Bill.” Burke, is not 28-1463.03(1), applied
Accordingly, § to the and 14th amendments vague under the 1st impermissibly U.S. Constitution. argues the trial court assignment of error
In his third a Class I the offense was but have determined that should felony. fallacy in The first a Class III misdemeanor rather than a first time specifies that 28-1463.04 position a Class III constitutes part 28-1463.03 violation felony.
Nonetheless, Burke argues provided any that as he had not anyone arrested, tape to before he was his conduct was not *9 complete, charged and he should therefore have been under a dealing possession section of the act with the certain material (§ 28-1463.05), with the intent to distribute it violation which I then constituted but a The applicable Class misdemeanor. rule, however, single is where a act violates more than one statute, prosecutor prosecute a is free to statute he or chooses, long deliberately she so as the selection is not based race, upon unjustifiable religion, an standard such as or other arbitrary Roth, 119, v. 222 classification. State Neb. 382 315, Loschen, N.W.2d 221 (1986); 348 Neb. 376 (1985). N.W.2d 792 fallacy position
The second in Burke’s is that his conviction “provided” does not upon tape anyone. rest whether he a He played tape or showed the Bill” “Cousin and therefore “published” it in the he sense that disclosed its contents and generally made them known. Webster’s Third New Dictionary, Unabridged International 1837 (1981). Burke’s publication tape of the “Cousin Bill” constitutes a violation of so, That 28-1463.03(1). being charged and since he was in but § single a count which either tape thus covered the “Cousin Bill” High tape, or the we need determine copying not whether the High tape making, directing, creating, constituted the generating contemplated by 28-1463.03(1). §
Finally, assigns as error the district court’s failure mentally with deal him as a disordered sex offender. Burke correctly sentencing mandatory argues duty that a court has a (Reissue under Neb. Stat. 1985) Rev. 29-2912 to order an § felony a evaluation one convicted of sexual offense for the purpose determining mentally whether he or she is a v. Klappal, disordered sex offender. State 355 mentally A sex N.W.2d disordered offender is one who, disorder, because a mental has been determined to be disposed repeated commission of sexual offenses which are likely injury to cause substantial to others. Neb. Rev. Stat. 29-2911(2) (Reissue person If such is 1985). found to § mentally sex and if treatable disordered offender treatment is for state, shall be committed then such
available in the Neb. law. in accordance with treatment, as sentenced as well for these (Reissue 1985). A sexual offense Rev. Stat. 29-2915 the sexual excitement any felony in which purposes includes supra; Klappal, factor. State v. the offender is a motivational 29-2911. of this to a consideration The obstacle insurmountable us court took assignment while tells the trial is that the record he be and overruled Burke’s motion evidence on offender, the bill of mentally sex determined to be disordered at that exceptions not the evidence submitted contain hearing. assignment requiring examination of of error An proper prevail appeal in the absence of the evidence cannot on Dittrich, 390 N.W.2d exceptions. bill of Neb. 5A(2) (rev. 1986). Ct. R. of (1986); Neb. Prac. guilty suggestion that not have been found Burke’s he could finding sexually he was excited implicit without an charged spurious. process of the conduct for which he was *10 analysis vagueness Burke’s establishes Our ill-fated claim substantial sexual excitement is not element or by proscribed motivational factor of the conduct some of 28-1463.03(1). assignments Since the record fails sustain of Burke’s error, the judgment of the district court is affirmed. Affirmed. J.,C. concurring in the result.
Krivosha, majority opinion The in support the instant case finds as for holding Ferber, its the decision of New York v. 458 U.S. I, too, 102 S. Ct. 73 L. Ed. 2d 1113 find comfort however, in my Ferber. I write separately, comfort because in Stevens, comes the concurrence he filed Justice in which points out that while the specific gave conduct rise to the prosecution criminal protected by is not the federal Constitution, the state charged statute that Burke is with violating prohibit protected by some conduct that first amendment. Little purpose would be served for me to plagiarize the concurrence of Justice it then to Stevens. Suffice say that adopt I the views expressed by Justice Stevens in his Ferber, concurrence in York New though it had direct are application to the facts in this case. The facts Ferber herein, almost identical with the facts and Justice Stevens’ concurrence in could be filed herein and it would make Ferber Ferber, perfectly good did I will sense. As Justice Stevens appropriate myself await the about case concern what aspects of the amendment first U.S. Constitution Neb. through Rev. (Reissue 1985) Stat. 28-1463.01 28-1463.05 §§ violate. What is clear is that the instant case there was no first amendment violation.
Leonard R. v. Frank O. Gunter Anderson, appellee, et al., appellants. 12, 1987.
Filed June No. 87-073. Keefe, Dennis R. County Defender, Lancaster Public Goos, Special Richard L. Deputy Defender, Public for appellee. Spire, General,
Robert M. Attorney Willard, and Linda L. appellants. for C.J., Krivosha, Boslaugh, White, Hastings, Caporale, J J.
Shanahan, Grant, Per Curiam. declaratory In a judgment brought by action Leonard R. *11 Anderson, the district court for County Lancaster held Department Nebraska of Correctional Services lacked authority to withhold credit for good time, meritorious see Neb. Rev. Stat. 83-1,107(1) (Cum. Supp. 1974), earned before mandatory Anderson violated parole. his appeal On State, parties stipulated only that the issue involved in