following Ferber and applying the traditional rule of standing to a First Amendment challenge to the vagueness of a telephone harassment statute, observing that this rule "reflects both the personal nature of constitutional rights and the prudential limitations on constitutional adjudication.”
How later courts described this case
- following Ferber and applying the traditional rule of standing to a First Amendment challenge to the vagueness of a telephone harassment statute, observing that this rule "reflects both the personal nature of constitutional rights and the prudential limitations on constitutional adjudication.”
- upholding a statute that criminalized calling another and using indecent, lewd, lascivious, or obscene language with the intent to terrify, intimidate, threaten, harass, annoy, or offend
- note-taking permitted “if, and only if, the parties agree, outside the jury’s presence, [1] that jurors may, but need not, take notes, and [2] that such notes as are taken may be used during the jury’s deliberations but not preserved for review on appeal . . .”
- reversing when jury instructed that the use of lewd language was prima facie evidence of intent to harass
Written by the judges who cited it.
The opinion
Hastings, C. J.,
concurring.
I concur in the result reached by the majority, but do not embrace all of the concepts and theories discussed in that opinion, particularly with reference to presumptions as applied to the statute in this case.
The section of the statute under attack does not create a true presumption. It merely establishes a prima facie case; i.e., if the evidence discloses that the caller used indecent, lewd, or obscene language or made a lewd suggestion, the fact finder may, but is not required to, infer an intent to terrify, intimidate, threaten, harass, annoy, or offend. State v. Bird Head, 181 Neb. 885 , 151 N.W.2d 615 (1967).
*255 “The statutory provision does not affect the risk of nonpersuasion. If specific instructions on the inference are given, they ought to dispel any notion that proof of the basic fact shifts the burden of persuasion to defendant. A jury may, but is not required to, infer guilt from existence of the basic fact.”
Id. at 886-87 , 151 N.W.2d at 616 .
I do agree that the trial court erred in instructing the jury as to prima facie evidence. This is especially true when it is apparent that the jury was not instructed as to the definition of “prima facie” and when the jury was not given an instruction on criminal intent.
In any event, the language of a statutory provision such as is found in Neb. Rev. Stat. § 28-1310 (2) (Reissue 1985) is for the guidance of the trial judge. “The concept of ‘prima facie evidence’ is usually one for the trial judge to use in determining if there is sufficient evidence to send the case to the jury.” State v. Stalder, 231 Neb. 896, 906 , 438 N.W.2d 498, 505 (1989). The language of the statute in this case should have been reserved for that purpose and should not have been included within the instructions.
Boslaugh, J., joins in this concurrence.