State v. KassState v. Kass
2. Jury Instructions. Whether jury instructions are correct presents a question of law.
3. Constitutional Law: Criminal Law. The First Amendment limits a state‘s ability to prosecute certain criminal offenses.
4. Constitutional Law: Presumptions. Except for a few well-recognized categories of unprotected speech, a content-based restriction on speech is presumptively invalid and subject to strict scrutiny.
5. Constitutional Law: Statutes: Proof. When a party does not claim that a challenged law has no valid application, a facial challenge must establish that a substantial number of the law‘s applications are unconstitutional in relation to its legitimate sweep.
6. Constitutional Law: Statutes. If a statute is substantially overbroad, it invalidates all enforcement of the law.
7. Constitutional Law: Statutes: Standing. A party has standing to challenge a statute as overbroad, even if unaffected by the part that punishes protected speech, when the party claims that the statute will significantly compromise the free speech rights of others not before the court.
8. Constitutional Law: Statutes. A statute is unconstitutionally overbroad and thus offends the First Amendment if, in addition to forbidding speech or conduct
9. ____: ____. A court may invalidate a statute 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.
10. ____: ____. In considering a facial challenge to a law regulating speech, a court will narrow its application when the language is readily susceptible to such construction.
11. Statutes: Legislature: Intent. A statute is susceptible to a narrowing construction when the text or another source of legislative intent identifies a clear line that a court can draw.
12. Jury Instructions: Appeal and Error. When a party assigns as error the failure to give an unrequested jury instruction, an appellate court will review only for plain error.
13. Appeal and Error. Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.
14. Jury Instructions. When instructing the jury, it is proper for the court to describe the offense in the language of the statute.
15. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court‘s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court‘s refusal to give the tendered instruction.
16. Criminal Law: Entrapment: Words and Phrases. In Nebraska, entrapment is an affirmative defense consisting of two elements: (1) the government induced the defendant to commit the offense charged and (2) the defendant‘s predisposition to commit the criminal act was such that the defendant was not otherwise ready and willing to commit the offense.
17. Entrapment: Evidence: Proof. The burden of going forward with evidence of government inducement is on the defendant. In assessing whether the defendant has satisfied this burden, the initial duty of the court is to determine whether there is sufficient evidence that the government has induced the defendant to commit a crime. The court makes this determination as a matter of law, and the defendant‘s evidence of inducement need be only more than a scintilla to satisfy his or her initial burden.
18. Entrapment: Evidence. A defendant need not present evidence of entrapment; he or she can point to such evidence in the government‘s case in chief or extract it from the cross-examination of the government‘s witnesses.
19. Entrapment: Evidence: Words and Phrases. Inducement can be any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representation, threats, coercive tactics, promise of reward, or pleas based on need, sympathy, or friendship. Inducement requires something more than that a government agent or informant suggested the crime and provided the occasion for it.
21. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
22. Judges. An abuse of discretion occurs when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
23. Sentences. When imposing a sentence, a sentencing judge should consider the defendant‘s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the violence involved in the commission of the crime.
24. ____. In imposing a sentence, the sentencing judge is not limited to any mathematically applied set of factors.
25. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge‘s observation of the defendant‘s demeanor and attitude and all the facts and circumstances surrounding the defendant‘s life.
Appeal from the District Court for Sarpy County:
Alan G. Stoler, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ., and INBODY, Chief Judge.
CONNOLLY, J.
A jury found David M. Kass guilty of one count of enticement by an electronic communication device under
I. BACKGROUND
On July 13, 2009, Kass, an Omaha police officer, logged onto his “Yahoo!” chat account using his personal computer.
The La Vista officer logged onto a chat room designated “Nebraska romance” and waited. He did not initiate contact with any of the other members present in the chat room. Eventually, a participant contacted the officer. The participant was Kass. The two began a conversation that spanned 1 1/2 hours.
In our summary of the conversation that follows, we correct grammar, spelling, or punctuation only when the meaning would otherwise be unclear. We do not add “sic” at any point because it would be necessary far too often and would clutter the opinion.
About 5 minutes into the conversation, Kass asked the officer, or decoy, “asl [age, sex, location]?” To which the decoy responded, “14[, female,] omaha.” Kass then said that he was 25, a male, and in Omaha. Kass asked if this was “too old?” The decoy asked, “4 whut?” Kass responded, “anything.”
Kass directed the conversation. Shortly after asking the decoy‘s age, Kass asked the decoy what she was going to do that day. The decoy responded that she would be swimming at a pool at her grandmother‘s apartment complex. Kass asked whether her bathing suit was “one piece or two piece.” When the decoy answered, “two,” Kass responded, “nice.” Kass also asked her if her suit was small. He asked her what apartment complex she would be swimming at. After the decoy asked why Kass would want to know, Kass backed off that line of questioning.
A short time later, Kass asked what the decoy was wearing. The decoy responded, “just some shorts and a tank, why[?]” Kass then said, “very cute just making convo.” He then asked if she was home alone. The decoy responded that her grandmother would still be home for “a little while.”
The conversation continued down a sexual path, all seemingly at the direction of Kass and over the, albeit subtle, protestations of the decoy. Kass asked what size bra the decoy wore. The time logs on the chat indicate that the decoy did not respond for 2 minutes, at which time Kass asked, “cat got ur tongue?” The decoy responded, “just not sure if i shuld say.” Kass said, “ok dont say if you dont want to.” The decoy went on, “its just I dont no u very well . . . and im kinda embarrassed cuz i think im kinda small.” Kass then coaxed her into saying that she wore a “32 a,” to which Kass responded, “very nice.” Kass then said, “i like tiny girls and being properly portioned to ur body is the key.”
A short time later, Kass asked, “whats the most you have done with a boy?” The decoy asked if Kass was joking. Kass indicated that he might have been both asking seriously and joking at the same time. The decoy responded that she had not had sex but had done “some stuf.” Kass asked if it was “oral fun or just hands?” The decoy then said, “ur not gonna think bad of me if i tell u are u[?] ” After Kass said no, the decoy indicated it was oral sex. Kass then pressed for further details, including whether the decoy masturbated. After the decoy said that she had never “finished,” Kass asked her,
The conversation then turned to graphic detail regarding oral sex. Kass asked if the decoy would like to try it. The decoy then asked Kass if he would be interested in her, considering her age. Kass responded, “kinda.” Kass continued to ask numerous detailed questions regarding the decoy‘s experience with oral sex.
Kass then asked about intercourse. He asked the decoy, “what about sex?” The decoy asked in return, “what bout it.” Kass responded, “wanna?” The decoy responded, “alot of girls are doin it but im so scared of gettin pregnent.” Kass answered, “condoms . . . lol.” The decoy expressed her fear of getting pregnant, stating, “im 2 yung 2 have a baby.” A short time later, Kass ended the conversation.
Two days after this conversation, officers served a search warrant on Kass’ home. The State later charged Kass with one count of enticement by an electronic communication device in violation of
Before trial, Kass moved to quash or, in the alternative, demur to the information. Kass cited nine bases for his motion, including that the statute violated the First Amendment and was vague and overbroad because of its inclusion of a peace officer as a victim. The court denied this motion.
After the presentation of evidence, the court instructed the jury on two subsections of
II. ASSIGNMENTS OF ERROR
Kass raises four assignments of error, which we restate as follows:
(1) The court erred in concluding that
(2) The court committed plain error in failing to instruct the jury on the definition of “indecent, lewd, lascivious, or obscene.”
(3) The court erred in failing to instruct the jury on an entrapment defense.
(4) The court erred in imposing an excessive sentence.
III. STANDARD OF REVIEW
[1,2] Whether a statute is constitutional presents a question of law, which we resolve without regard to how the issue was decided below. Whether jury instructions are correct also presents a question of law.
IV. ANALYSIS
1. OVERBREADTH OF § 28-833
[3] Kass’ first argument is that
A person commits the offense of enticement by electronic communication device if he or she is nineteen years of age or over and knowingly and intentionally utilizes an electronic communication device to contact a child under sixteen years of age or a peace officer who is believed by such person to be a child under sixteen years of age and in so doing:
(a) Uses or transmits any indecent, lewd, lascivious, or obscene language, writing, or sound;
(b) Transmits or otherwise disseminates any visual depiction of sexually explicit conduct as defined in section 28-1463.02 [defining terms under Child Pornography Prevention Act]; or
(c) Offers or solicits any indecent, lewd, or lascivious act.
We recently considered an equal protection challenge to
[4-6] Except for a few well-recognized categories of unprotected speech,11 a content-based restriction on speech is presumptively invalid and subject to strict scrutiny.12 The state bears the burden to rebut that presumption.13 But when a party does not claim that the challenged law has no valid application, a facial challenge must establish that a substantial number of the law‘s applications are unconstitutional in relation to its legitimate sweep.14 If shown, this substantial overbreadth invalidates all enforcement of the law.15 Conversely, the attack fails if the challenger fails to meet this burden.16
[7] As noted, the court instructed the jury that it could convict Kass if it found that the State had proved a violation of
[8,9] 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.19 A court may invalidate a statute on its face, however, only if its overbreadth is “substantial,” i.e., when the statute is unconstitutional in a substantial portion of cases to which it applies.20 A realistic danger must exist that the statute will significantly compromise recognized First Amendment protections of parties not before the court.21
Here, Kass cannot meet that burden. He argues that because the statute does not define “indecent, lewd, lascivious, or obscene,” the statute is overbroad in its application. We recognize that the U.S. Supreme Court in Reno v. American Civil Liberties Union22 struck down a similar statute, in part, over its concern that Congress failed to define the terms “‘indecent‘” and “‘patently offensive‘” in a manner that ensured they would not be applied to protected speech.23 But here, the Legislature has used a phrase to define the prohibited conduct that we previously construed in State v. Kipf.24 The Legislature obviously intended to restrict the range of this statute to our earlier construction.
Here, the Legislature‘s use of the phrase “indecent, lewd, lascivious, or obscene,” which is the same phrase that we construed in Kipf, identifies a clear line that we can apply to narrow the statute‘s reach. In Kipf, we considered a challenge to
Further, we emphasize that to violate
2. JURY INSTRUCTIONS
Kass also argues that the court erred in failing to instruct the jury in two respects.
(a) Instruction on Meaning of Terms “Indecent, Lewd, Lascivious, or Obscene”
Kass argues that the court erred in not instructing the jury on the meaning of the terms “indecent, lewd, lascivious, or obscene.” Kass argues that the court erred in not providing definitions of the terms. The record, however, indicates that Kass never requested such an instruction.
[12,13] Because Kass did not request this instruction, we review the court‘s failure to give it only for plain error.33 Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.34
(b) Entrapment
Kass argues that the court erred in denying his request for a jury instruction on the defense of entrapment. We find that on the record before us, the evidence does not warrant an entrapment instruction.
[15] To establish reversible error from a court‘s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court‘s refusal to give the tendered instruction.36
[16-18] When a defendant raises the defense of entrapment, the trial court must determine, as a matter of law, whether the defendant has presented sufficient evidence to warrant a jury instruction on entrapment.37 In Nebraska, entrapment is an affirmative defense consisting of two elements: (1) the government induced the defendant to commit the offense charged and (2) the defendant‘s predisposition to commit the criminal act was such that the defendant was not otherwise ready and willing to commit the offense.38 The burden of going forward with evidence of government inducement is on the defendant. In assessing whether the defendant has satisfied this burden, the initial duty of the court is to determine whether there is sufficient evidence that the government has induced the defendant to commit a crime. The court makes this determination as a matter of law, and the defendant‘s evidence of inducement need be only more than a scintilla to satisfy his or her initial
[19,20] Inducement can be any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representation, threats, coercive tactics, promise of reward, or pleas based on need, sympathy, or friendship. Inducement requires something more than that a government agent or informant suggested the crime and provided the occasion for it.41 Inducement consists of an opportunity plus something else, such as excessive pressure by the government upon the defendant or the government‘s taking advantage of an alternative, noncriminal type of motive.42 To show inducement, “a defendant must establish that ‘[it was] the prosecution [that] set the accused in motion . . . .‘”43
Kass claims two facts show inducement—that given the decoy‘s profile and Yahoo!‘s chat room policies, Kass thought the decoy was over 18, and that the decoy was the first to use the word “sex” or “oral.” Neither of these facts suffices to show inducement.
The record shows that Kass was informed of the decoy‘s supposed age well before he said anything that even approached the speech covered by the statute. When the decoy told Kass her age, Kass asked if he was too old, which indicates that he read and understood the decoy‘s message. And other statements made by Kass and the decoy lead us to believe that Kass knew he was talking to a minor. At this point, Kass could have left the conversation without violating any law. The decoy did not encourage him to stay. Nor did the decoy urge him to discuss anything sexual. In fact, the chat logs indicate
3. EXCESSIVE SENTENCE
Finally, Kass argues that his sentence is excessive. The court sentenced Kass to 1 year in prison with credit for 2 days served and ordered Kass to register as a sex offender.
Kass was convicted under
[21-25] An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.44 An abuse of discretion occurs when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.45 When imposing a sentence, a sentencing judge should consider the defendant‘s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the violence involved in the commission of the crime.46 In imposing a sentence, the sentencing judge is not limited to any mathematically applied set of factors.47 The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge‘s observation of the defendant‘s
Given Kass’ age, his education, the offense, and the fact that he was a police officer, we conclude that the court did not abuse its discretion in sentencing Kass to 1 year in prison.
V. CONCLUSION
We conclude that none of Kass’ assignments of error have merit. We affirm his conviction and sentence.
AFFIRMED.
WRIGHT, J., not participating.