# State v. Kipf

> Nebraska Supreme Court · January 19, 1990 · 234 Neb. 227

URL: https://www.frixlaw.com/law-library/cases/9535508

## Case

- **Full name:** State of Nebraska, Appellee, v. Robert L. Kipf, Appellant
- **Court:** Nebraska Supreme Court
- **Decided:** January 19, 1990
- **Citations:** 234 Neb. 227; 450 N.W.2d 397; 1990 Neb. LEXIS 9
- **Precedential status:** Published
- **Opinion:** Concurrence by Hastings
- **Judges:** Boslaugh, Caporale, Fahrnbruch, Grant, Hastings, Shanahan, White
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9535508

## How later opinions describe it (automated extraction)

- reversing when jury instructed that the use of lewd language was prima facie evidence of intent to harass

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9535508. Public record. Not legal advice.