Opinion
No. 90-177.
Filed January 25, 1991.
1. Constitutional Law: Criminal Law: Words and Phrases. As used in the terroristic threats statute, Neb. Rev. Stat. § 28-311.01 (Reissue 1989), the phrase "reckless disregard of the risk of causing such terror or evacuation" is not unconstitutionally vague. 2. Criminal Law: Words and Phrases. A reckless act, as defined in Neb. Rev. Stat. § 28-109 (19) (Reissue 1989), involves a conscious choice in a course of action, made with knowledge of a serious danger or risk to another or with knowledge which, to a reasonable person, would indicate or disclose a serious danger or risk to another as a result of the course of action selected. 3. ___:___. The phrase used in Neb. Rev. Stat. § 28-311.01(1)(c) (Reissue 1989), "reckless disregard of the risk of causing such terror or evacuation," is sufficiently definite and provides ascertainable standards of guilt to inform individuals as to what conduct will render them liable for punishment.
Appeal from the District Court for York County: BRYCE BARTU, Judge. Exception sustained, and cause remanded for further proceedings.
Charles W. Campbell, York County Attorney, for appellant.
Mark M. Sipple, of Luckey, Sipple, Hansen, Emerson Schumacher, for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
This case comes to us as an appeal by the State pursuant to Neb. Rev. Stat. § 29-2315.01 (Reissue 1989) of an order entered by the district court for York County, Nebraska, which sustained in part the defendant's motion to quash the information charging him with terroristic threats. The court's order declared that part of the state terroristic threats statute is unconstitutional. We find that the statute is constitutional, sustain the exception to the court's ruling, and remand the cause to the district court for further proceedings.
Although it is possible that this issue is not appealable as a final order at this time, we consider it, since in its posture it could evade review at a later time. As the U.S. Supreme Court has stated, "[T]he matters embraced in the trial court's pretrial order here are truly collateral to the criminal prosecution itself in the sense that they will not `affect, or . . . be affected by, decision of the merits of this case.'" Abney v. United States, 431 U.S. 651, 660, 97 S.Ct. 2034, 52 L. Ed. 2d 651 (1977), quoting Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L.Ed. 1528 (1949).
The defendant, Michael E. Bourke, was charged by information with violation of Neb. Rev. Stat. § 28-311.01 (Reissue 1989), terroristic threats, a Class IV felony. The information was filed on November 7, 1989, alleging that he did "threaten to commit any crime of violence with the intent to terrorize another or in reckless disregard of the risk of causing such terror." On December 26, Bourke filed a motion to quash the information, asserting that the terroristic threats statute "is unconstitutionally vague and overbroad on its face in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution, and Sections 1, 3 and 5 of Article I of the Nebraska Constitution."
After a hearing on the motion, the trial judge issued an order on January 26, 1990, finding that 28-311.01(1)(a) and (b) is not unconstitutionally vague and overbroad, but that 28-311.01(1)(c) is unconstitutionally vague. The court ordered the last section of the information, "or in reckless disregard of the risk of causing such terror," to be quashed and stricken from the information.
The State filed this appeal on February 9, asserting that the district court erred in determining that the statute is unconstitutionally vague and that the defendant failed to show that he had standing to raise the constitutional challenge. The question of standing was not raised in the appellant's brief and will not be addressed.
Section 28-311.01 reads:
(1) A person commits terroristic threats if he or she threatens to commit any crime of violence:
(a) With the intent to terrorize another;
(b) With the intent of causing the evacuation of a building, place of assembly, or facility of public transportation; or
(c) In reckless disregard of the risk of causing such terror or evacuation.
(2) Terroristic threats is a Class IV felony.
The district court found only subsection (1)(c) to be unconstitutional, and the defendant did not file a cross-appeal. He thereby waives his right to object to subsections (1)(a) and (1)(b). We address only subsection (1)(c).
As the State points out in its brief, the district court did not explain its finding, nor did it identify any specific portion of the statute as vague. It appears that the court believed that the phrase "reckless disregard of the risk" was so "uncertain that an ordinary person cannot intelligently choose in advance what course of conduct is lawful or unlawful under that section."
We note first that "reckless" has been defined repeatedly in statute and case law. Neb. Rev. Stat. § 28-109 (19) (Reissue 1989) defines recklessly as
acting with respect to a material element of an offense when any person disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.
We have held that in the context of assault, [a] reckless act [as defined in 28-109(19)] involves a conscious choice in a course of action, made with knowledge of a serious danger or risk to another as a result of such choice of action or with knowledge of the attendant circumstances which, to a reasonable person, would indicate or disclose a serious danger or risk to another as a result of the course of action selected.
State v. Hoffman, 227 Neb. 131, 139, 416 N.W.2d 231, 237 (1987). With guidance from these sources, there should be no misunderstanding as to the meaning of reckless, and it is not unconstitutionally vague.
The current terroristic threats statute was passed after we held its predecessor to be unconstitutional in State v. Hamilton, 215 Neb. 694, 340 N.W.2d 397 (1983). The previous statute stated: "`(1) A person commits terroristic threats if: (a) He threatens to commit any crime likely to result in death or serious physical injury to another person or likely to result in substantial property damage to another person . . . .'" Id. at 695, 340 N.W.2d at 398. We held that the statute was vague and uncertain as to what constitutes a threat because the statute did not "define the term [or] describe how or to whom, if anyone, the threat must be made." Id. at 697, 340 N.W.2d at 399.
We later held that "[t]he underlying rationale of Hamilton is that the statute left uncertain both what constituted a threat and what constituted the likely result required." In re Interest of Siebert, 223 Neb. 454, 457, 390 N.W.2d 522, 524-25 (1986). The current law provides no additional guidance as to what constitutes a threat, but because only subsection (1)(c) was held to be unconstitutional, we address only the issue of "reckless disregard of the risk."
In Hamilton, we noted that the previous Nebraska law differed from the Model Penal Code and that the
language of the Model Penal Code is certainly much clearer than that adopted by the Nebraska Legislature. An actor violates the Model Penal Code when he or she threatens to commit any crime of violence, with the intent to terrorize another, regardless of what the outcome of the act will be or of how the victim receives the threat. The Model Penal Code seems to be fairly definite, and not speculative as is the statute in question.
Hamilton, supra at 698-99, 340 N.W.2d at 399-400.
Under the current Model Penal Code,
[a] person is guilty of a felony of the third degree if he threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.
Model Penal Code 211.3 at 127 (1962).
When the Nebraska law was revised in 1986, the wording of the Model Penal Code was adopted almost verbatim. Subsection (1)(c) of 28-311.01 defines the crime with enough certainty to meet the requirements of Hamilton and its progeny "`with sufficient definiteness and . . . ascertainable standards of guilt to inform those subject thereto as to what conduct will render them liable to punishment thereunder. . . .'" Hamilton, supra at 695, 340 N.W.2d at 398, quoting State v. Huffman, 202 Neb. 434, 275 N.W.2d 838 (1979).
We hold that 28-311.01(1)(c) is constitutional and sustain the exception to the finding of the district court to the contrary. This cause is remanded to the district court for further proceedings.
EXCEPTION SUSTAINED, AND CAUSE REMANDED FOR FURTHER PROCEEDINGS.