State v. Knutson ( 2014 )

Nebraska Advance Sheets
STATE v. KNUTSON 823
Cite as 288 Neb. 823and should not be considered on remand. For the reasons
stated herein, we reverse the judgment of the district court
and remand the cause for further proceedings consistent with
this opinion.
R eversed and remanded for
further proceedings.
State of Nebraska, appellee, v.
Shad M. K nutson, appellant.
___ N.W.2d ___
Filed August 15, 2014. No. S-13-558.
1. Criminal Law: Trial. A motion for separate trial is addressed to the sound dis-
cretion of the trial court, and its ruling on such motion will not be disturbed in
the absence of a showing of an abuse of discretion.
2. Constitutional Law: Trial: Joinder. A defendant has no constitutional right to
a separate trial on different charges. Neb. Rev. Stat. § 29-2002 (Reissue 2008)
controls the joinder or separation of charges for trial.
3. Trial: Joinder: Appeal and Error. Under Neb. Rev. Stat. § 29-2002 (Reissue
2008), whether offenses were properly joined involves a two-stage analysis in
which an appellate court first determines whether the offenses were related and
joinable and then determines whether an otherwise proper joinder was prejudicial
to the defendant.
4. ____: ____: ____. To determine whether the charges joined for trial are of the
same or similar character, an appellate court looks at the underlying factual
allegations.
5. Trial: Joinder: Proof. A defendant opposing joinder of charges has the burden
of proving prejudice.
6. Trial: Joinder: Evidence: Jury Instructions. No prejudice from joined charges
usually occurs if the evidence is sufficiently simple and distinct for the jury to
easily separate evidence of the charges during deliberations. This is particularly
true when the trial court specifically instructed the jury to separately consider the
evidence for each offense.
7. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress evidence based
on a claimed violation of the Fourth Amendment, an appellate court applies a
two-part standard of review. Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. But whether those facts trigger or vio-
late Fourth Amendment protections is a question of law that an appellate court
reviews independently of the trial court’s determination.
8. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the government.
Nebraska Advance Sheets
824 288 NEBRASKA REPORTS
9. Constitutional Law: Search and Seizure: States. The Fourth Amendment’s
protections are implicated whenever state action intrudes on a citizen’s reasonable
expectation of privacy.
10. Constitutional Law: Search and Seizure. Legitimation of expectations of
privacy by law must have a source outside of the Fourth Amendment, either by
reference to concepts of real or personal property law or to understandings that
are recognized and permitted by society.
11. Constitutional Law: Search and Seizure: Search Warrants. Under the Fourth
Amendment, a warrant is not required to obtain telephone billing and toll records
because obtaining them by subpoena does not constitute a search.
12. Constitutional Law: Search and Seizure: States. The violation of a state law
restricting searches is insufficient to show a Fourth Amendment violation. The
analysis turns on whether society recognizes an expectation of privacy deserving
of the most scrupulous protection from government invasion.
13. Constitutional Law: Statutes: Evidence. Absent a constitutional violation, a
court will normally suppress evidence obtained in violation of a rule or statute
only if the governing law provides that remedy.
14. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a suf-
ficiency of the evidence claim, whether the evidence is direct, circumstantial, or a
combination thereof, the standard is the same: An appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evi-
dence; such matters are for the finder of fact. The relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.
15. Statutes: Appeal and Error. An appellate court decides questions of statutory
interpretation as a matter of law.
16. Criminal Law: Statutes: Legislature: Intent. A court gives penal statutes a
sensible construction, considering the Legislature’s objective and the evils and
mischiefs it sought to remedy.
17. Statutes. Absent a statutory indication to the contrary, a court gives words in a
statute their ordinary meaning.
18. Criminal Law: Statutes: Words and Phrases: Appeal and Error. An appel-
late court strictly construes penal statutes and does not supply missing words or
sentences to make clear that which is indefinite or not there.
19. Criminal Law: Statutes: Appeal and Error. An appellate court will not apply a
penal statute to situations or parties not fairly or clearly within its provisions.
20. Criminal Law: Statutes. Ambiguities in a penal statute are resolved in the
defendant’s favor.
21. Trial: Presumptions. Triers of fact may apply to the subject before them that
general knowledge which any person must be presumed to have.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, for
appellant.
Nebraska Advance Sheets
STATE v. KNUTSON 825
Cite as 288 Neb. 823Jon Bruning, Attorney General, and George R. Love for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Connolly, J.
I. SUMMARY
The State charged Shad M. Knutson with five counts of
sexual assault and child abuse involving four minor girls:
T.P., M.K., E.M., and E.A. A jury found Knutson guilty of
the charges involving E.A., but acquitted him of the charges
involving the other three girls. The issues are whether (1)
a joint trial on the offenses was proper, (2) Knutson’s cell
phone records should have been suppressed because the State
obtained them by subpoena, and (3) the evidence was sufficient
to support Knutson’s convictions. We conclude that the court
properly joined the offenses and correctly denied Knutson’s
motion to suppress his cell phone records. And we conclude
that the evidence was sufficient to support Knutson’s convic-
tions for child abuse and child enticement for an illegal sexual
purpose under Neb. Rev. Stat. § 28-320.02 (Cum. Supp. 2012).
We affirm.
II. BACKGROUND
Knutson taught at a public middle school in Omaha,
Nebraska. T.P., M.K., and E.M. were students of Knutson
when the alleged misconduct occurred. E.A. was not one of
Knutson’s students at the school, though she had attended
school there and knew him. When E.A. moved on to high
school, Knutson tutored her during her freshman and sopho-
more years, the period during which the alleged miscon-
duct occurred.
1. Complaining Witnesses’ R eports
and Subsequent I nvestigation
In November 2009, T.P. reported Knutson to school offi-
cials for sexually inappropriate conduct. Following an inter-
nal investigation, school officials determined that there was
no substance to T.P.’s allegations and she was moved to a
Nebraska Advance Sheets
826 288 NEBRASKA REPORTS
different school. In December, M.K. reported Knutson to
school officials for sexually inappropriate conduct. While con-
ducting an investigation, Knutson was put on leave, but once
school officials concluded there was no criminal conduct, they
allowed him to return to teach. School officials did not for-
ward either T.P.’s or M.K.’s allegations to the police.
In October 2010, E.M. reported Knutson to school officials
for sexually inappropriate conduct. Soon after, E.M.’s mother
reported Knutson to Child Protective Services, which led to
a police investigation. During the investigation, E.A.’s name
came up and police interviewed her. She initially denied any
relationship or anything inappropriate happening between
her and Knutson. But investigators obtained Knutson’s cell
phone records, which revealed that he had thousands of
telephone contacts with E.A. When confronted with the cell
phone records, and after seeing Knutson on the news, E.A.
admitted to prosecutors that she and Knutson had been in
a relationship.
2. Charges and P retrial Motions
The State charged Knutson with sexual assault and child
abuse involving the four girls. Before trial, Knutson moved
to sever the charges. In his motion, Knutson argued that the
charges were not joinable under Neb. Rev. Stat. § 29-2002(1)
(Reissue 2008) and that, even if they were, joinder would prej-
udice him. But the court determined that the charges were of
the same or similar character and that evidence of the alleged
acts would be admissible against Knutson in separate trials.
The court denied Knutson’s motion to sever.
Before trial, Knutson also moved to suppress his cell phone
records, which the State had obtained by subpoena. In his
motion, Knutson argued that the State’s use of subpoenas was
improper because it violated both his constitutional right to be
free from unreasonable searches and seizures and Nebraska
statutory law. The court concluded, however, that because
Knutson had no expectation of privacy in the records, the
State’s subpoenaing them did not violate Knutson’s Fourth
Amendment rights. And the court concluded that the State’s
Nebraska Advance Sheets
STATE v. KNUTSON 827
Cite as 288 Neb. 823use of subpoenas to obtain the records complied with state
statutes. It overruled Knutson’s motion to suppress.
3. Trial Testimony, Jury Verdicts,
and Sentencing
Although the jury found Knutson guilty only of the charges
involving E.A., it is necessary to summarize the testimony
related to the other charges because it is relevant to the join-
der issue. T.P. testified that Knutson would tell her she was
pretty and beautiful, that he would ask her about her breasts
and whether he could feel them, and that he later threatened
to lower her grades if she did not show him her breasts. T.P.
also testified about incidents when she participated on the
football team and when she was a manager for the basketball
team. Knutson coached both teams. T.P. testified that Knutson
had asked her for oral sex and that he had “put his gym
shorts, like, right up to [her] face.” T.P. eventually told her
stepmother and reported Knutson to school officials. Initially,
however, T.P. did not report all the facts that she later stated
at trial.
M.K. testified that during class, Knutson took her cell phone,
looked through her cell phone pictures, and pointed to one and
said, “‘I like this one’” or “‘I like these,’” which M.K. took
to mean her breasts. M.K. also testified that she asked Knutson
for help while struggling with a test after school. M.K. testified
that Knutson told her that “‘[a] picture of you will get you a
B.’” And M.K. testified that the next day, Knutson asked for
her cell phone again and that she refused. This led to her being
referred to the administrator’s office, where M.K. eventually
reported Knutson.
E.M. testified that she and Knutson were close and that
he called her “sexy,” beautiful, and pretty. E.M. testified that
Knutson had brushed her breasts with his hand, that he had pat-
ted her hip, and that he had made sexually inappropriate com-
ments and gestures. For example, E.M. testified that one day
she whispered to Knutson that his zipper was down and that he
told her if she ever wanted to see “it,” all she had to do was
ask. E.M. did not report Knutson immediately because she was
Nebraska Advance Sheets
828 288 NEBRASKA REPORTS
scared, but she did end up reporting him to school officials,
though she did not provide the same level of detail as she did
at trial. Her mother called Child Protective Services, which led
the police to become involved.
E.A. testified that although she was never a student in
Knutson’s class, she knew him from her time at the middle
school. She testified that the summer before her freshman
year in high school, she worked at the middle school teaching
swimming and that she grew close to Knutson. She explained
that during the second semester of her freshman year, she
approached Knutson about tutoring her, which he agreed to do.
Knutson tutored her after school in his classroom, several times
a week. This arrangement continued into E.A.’s sophomore
year. E.A. testified that their relationship was much more than
that of a tutor and student.
At some point during this period, E.A. told Knutson that she
had feelings for him, and she testified that he told her he also
had feelings for her. She testified that their relationship turned
physical and that it involved touching, hugging, and kissing.
She explained that as the relationship became more serious,
he would touch her chest and genital area and she would do
the same to him. The physical interactions apparently always
occurred in Knutson’s classroom, after school. E.A. testified
that she and Knutson would talk or text every day, all day, and
that she told him she loved him and that he also told her he
loved her. They agreed several times, over the telephone and in
person, that they were both ready to “take it to the next level,”
which she testified meant having sex, although they never actu-
ally had sexual intercourse. E.A. also testified that Knutson
asked her for “sexy” pictures of herself and that she sent to him
a picture of her breasts covered with a bra.
Other witnesses also testified, including teachers and admin-
istrators from the middle school and the Omaha Public School
District. The testimony covered the school’s physical layout,
including classroom configurations, the school’s investiga-
tion policy at the time (internal investigations by the human
resources department are not always reported to police), and
the school’s actual investigations of the girls’ allegations. The
testimony covered teaching methods, coaching responsibilities,
Nebraska Advance Sheets
STATE v. KNUTSON 829
Cite as 288 Neb. 823and rules and practices regarding cell phone use at school. A
crime analyst also testified regarding the cell phone records
and contacts between E.A. and Knutson. In short, the ana-
lyst explained that there were over 26,000 telephone contacts
between the two in about a year’s time and that the contacts
occurred nearly every day and at all hours of the day, including
early morning and late at night.
The jury acquitted Knutson of the charges involving T.P.,
M.K., and E.M. But the jury convicted Knutson of the charges
involving E.A., which included child abuse and child entice-
ment for an illegal sexual purpose through the use of an elec-
tronic communication device. The court sentenced Knutson to
8 to 12 years in prison for the child enticement conviction and
1 to 2 years in prison on the child abuse conviction, with the
sentences to run consecutively. The court also ordered Knutson
to register as a sex offender.
III. ASSIGNMENTS OF ERROR
Knutson assigns, restated and consolidated, that the dis-
trict court erred in (1) denying Knutson’s motion to sever the
charges and joining them all in a single trial and (2) denying
Knutson’s motion to suppress the cell phone records because
the State violated his Fourth Amendment rights and because
the State’s subpoenas did not comply with Nebraska statutory
law. Knutson also argues that the evidence was insufficient to
support his convictions.
IV. ANALYSIS
1. Joinder
Knutson argues the charges involving E.A. should have
been tried separately from the charges involving the other
three girls. According to Knutson, the charges were not join-
able under § 29-2002(1) and, even if they were, severance was
necessary under § 29-2002(3) because the joinder was preju-
dicial to him. We disagree. We conclude that the charges were
joinable under § 29-2002(1) because they were “of the same or
similar character.” And our review of the record convinces us
that no prejudice arose from the joinder. We find no error in the
court’s conducting a single trial on the charges.
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830 288 NEBRASKA REPORTS
(a) Standard of Review
[1] A motion for a separate trial is addressed to the sound
discretion of the trial court, and its ruling on such motion
will not be disturbed in the absence of a showing of an abuse
of discretion.1
(b) Analysis
[2] A defendant has no constitutional right to a separate trial
on different charges.2 Instead, § 29-2002 controls the joinder
or separation of charges for trial. That section states, in rel-
evant part:
(1) Two or more offenses may be charged in the same
indictment, information, or complaint . . . if the offenses
charged . . . are of the same or similar character or are
based on the same act or transaction or on two or more
acts or transactions connected together or constituting
parts of a common scheme or plan.
....
(3) If it appears that a defendant or the state would be
prejudiced by a joinder of offenses . . . for trial together,
the court may order an election for separate trials of
counts, indictments, informations, or complaints, grant a
severance of defendants, or provide whatever other relief
justice requires.
[3] Under § 29-2002, whether offenses were properly joined
involves a two-stage analysis in which we first determine
whether the offenses were related and joinable and then deter-
mine whether an otherwise proper joinder was prejudicial to
the defendant.3
We first set out the relevant charges. For E.A., the State
charged Knutson with violating § 28-320.02 and child abuse.4
Section 28-320.02 is Nebraska’s prohibition of child enticement
1
State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010).
2
See id.3
See, id.; State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009).
4
Neb. Rev. Stat. § 28-707 (Reissue 2008).
Nebraska Advance Sheets
STATE v. KNUTSON 831
Cite as 288 Neb. 823through an electronic communication device. For T.P. and
E.M., the State charged Knutson with third degree sexual
assault of a child.5 And for M.K., the State charged Knutson
with child abuse.6
[4] The first question is whether the charges were properly
joined under § 29-2002(1). We agree with the State that the
charges were “of the same or similar character.” It is true they
do not all fall under the same statute, but that is only one fac-
tor to be considered.7 Under our case law, to determine whether
the charges joined for trial are of the same or similar character,
we look at the underlying factual allegations.8 Here, as the
district court found, significant similarities exist between the
facts underlying the charges. For example, each of the girls
attended the middle school at some point, they were similar
in age when the alleged misconduct occurred, and Knutson
occupied positions of trust (teacher, tutor, coach) with each of
the girls, which positions he allegedly abused. And the allega-
tions all involved illegal sexual conduct. We conclude that the
charges were “of the same or similar character” and joinable
under § 29-2002(1).
But Knutson argues that our decision in State v. Rocha9
commands a different conclusion. In Rocha, we addressed
whether joinder of a sexual assault charge was proper with
child abuse charges and, as relevant here, whether the charges
were of the same or similar character. In concluding that they
were not, we emphasized that “sexual assault, on its face, is
sexual in nature, whereas child abuse is not.”10 That statement
5
Neb. Rev. Stat. § 28-320.01 (Reissue 2008).
6
§ 28-707.
7
See, State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013); Wayne R.
LaFave et al., Criminal Procedure § 17.1(b) (5th ed. 2009).
8
See, e.g., State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997); State v.
Lewis, 241 Neb. 334, 488 N.W.2d 518 (1992); State v. Andersen, 232 Neb.
187, 440 N.W.2d 203 (1989). See, also, State v. Sanders, 15 Neb. App.
554, 733 N.W.2d 197 (2007).
9
Rocha, supra note 7.
10
Id. at 267, 836 N.W.2d at 782.
Nebraska Advance Sheets
832 288 NEBRASKA REPORTS
may have been imprecise; of course, the crime of child abuse
may encompass factual situations which are sexual in nature.
For example, “[a] person commits child abuse if he or she
knowingly, intentionally, or negligently causes or permits a
minor child to be . . . (e) Placed in a situation to be sexually
abused . . . .”11 Our point in Rocha, however, was that the
child abuse charges there (outside of the charge involving the
alleged victim of the sexual assault charge) all involved purely
physical conduct, with no sexual purpose.12 But here, each
charge, whether sexual assault or child abuse, was sexual in
nature. And that is a critical distinction.
[5] The next question is whether the otherwise proper join-
der prejudiced Knutson.13 A defendant opposing joinder of
charges has the burden of proving prejudice.14
We recently pointed out in State v. Foster15 that Fed. R.
Crim. P. 14(a) is the federal equivalent of § 29-2002(3). Like
§ 29-2002(3), rule 14(a) permits a federal court to order sepa-
rate trials for charged offenses or codefendants if it appears that
joinder will prejudice either party. We concluded that because
of the similarities between rule 14(a) and § 29-2002(3), we
will look to federal case law for guidance in determining when
severance should be granted.16
In Foster, the defendant argued that he was prejudiced by
the court’s refusal to order a separate trial for his codefendant.
We stated that under rule 14(a), to prevail on a severance
argument, a defendant “‘must show “compelling, specific,
and actual prejudice from [the] court’s refusal to grant the
motion to sever.”’”17 That is, “‘a defendant must show that the
11
§ 28-707(1).
12
See Rocha, supra note 7.
13
See Schroeder, supra note 1.
14
See State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999).
15
State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
16
See id.17
Id. at 837, 839 N.W.2d at 795, quoting U.S. v. Driver, 535 F.3d 424 (6th
Cir. 2008).
Nebraska Advance Sheets
STATE v. KNUTSON 833
Cite as 288 Neb. 823joint trial caused him such compelling prejudice that he was
deprived of a fair trial.’”18 Finally, we stated that even when
the risk of prejudice is high, a court’s limiting instructions
“‘often will suffice to cure any risk of prejudice.’”19
Federal courts apply the same standards to review a court’s
order overruling a request to sever charged offenses. Generally,
the defendant must show that the court’s refusal to sever
the offenses caused severe and specified prejudice in his or
her trial, not merely a better chance of acquittal in separate
­trials.20 Moreover, “‘absent a showing of substantial prejudice,
spillover of evidence from one [count] to another does not
require severance.’”21
[6] The Eighth Circuit has stated that “‘[s]evere preju-
dice occurs when a defendant is deprived of an appreciable
chance for an acquittal, a chance that [the defendant] would
have had in a severed trial.’”22 But it also applies a “‘strong
presumption against severing properly joined counts.’”23 As
we have previously held, prejudice is not shown if evidence
of one charge would have been admissible in a separate trial
of another charge.24 Additionally, federal courts hold that
prejudice usually does not occur from joined charges if the
evidence is sufficiently simple and distinct for the jury to
easily separate evidence of the charges during deliberations.
This is particularly true when the trial court specifically
instructed the jury to separately consider the evidence for
18
Id., quoting U.S. v. Hill, 643 F.3d 807 (11th Cir. 2011).
19
Id. at 838, 839 N.W.2d at 796, quoting Zafiro v. United States, 506 U.S.
534, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993).
20
See, U.S. v. Davis, 724 F.3d 949 (7th Cir. 2013); U.S. v. Riley, 621 F.3d
312 (3d Cir. 2010); U.S. v. Saadey, 393 F.3d 669 (6th Cir. 2005). See, also,
United States v. Lane, 474 U.S. 438, 106 S. Ct. 725, 88 L. Ed. 2d 814(1986).
21
U.S. v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006).
22
U.S. v. Garrett, 648 F.3d 618, 625-26 (8th Cir. 2011) (emphasis supplied).
23
Id. at 626.
24
See, e.g., Schroeder, supra note 1.
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834 288 NEBRASKA REPORTS
each offense.25 We agree with this reasoning and have previ-
ously applied it.26
Here, we need not consider whether the evidence of each
charge would have been admissible in separate trials. The
evidence supporting each charge was simple and distinct from
the evidence of other offenses. In other words, the jury could
separate the charges and associated evidence, without combin-
ing evidence of other charges to find guilt on a charge that it
would not have found if the court had ordered separate trials.
Moreover, the judge specifically instructed the jury that it was
to keep the charges separate and come to a separate decision
regarding each charge. Absent evidence to the contrary, a jury
is presumed to follow its instructions.27 But most important,
here there is more than simply a presumption that the jury
followed its instructions; the record shows that it actually did
do so. The jury found Knutson guilty of the charges involving
E.A., but acquitted him of the charges involving the other three
girls. Because the jury’s verdicts show that it actually separated
the evidence and offenses, Knutson has not shown prejudice
from the joinder.28
2. Motion to Suppress
Knutson argues that the court erred in denying his motion
to suppress his cell phone records. Knutson argues that he had
a reasonable expectation of privacy in the records and that the
State violated his constitutional rights by obtaining the records
by subpoena. Knutson also argues that the State’s use of sub-
poenas violated Nebraska statutory law. We conclude, however,
that Knutson had no reasonable expectation of privacy in the
25
See, U.S. v. Jimenez, 513 F.3d 62 (3d Cir. 2008); Closs v. Leapley, 18 F.3d
574 (8th Cir. 1994); Unites States v. Halper, 590 F.2d 422 (2d Cir. 1978);
Robinson v. United States, 459 F.2d 847 (D.C. Cir. 1972).
26
See Lewis, supra note 8 (citing State v. Nance, 197 Neb. 95, 246 N.W.2d
868 (1976), disapproved on other grounds, State v. Sanders, 235 Neb. 183,
455 N.W.2d 108 (1990)).
27
See State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
28
See, Jimenez, supra note 25; United States v. Hastings, 577 F.2d 38 (8th
Cir. 1978).
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STATE v. KNUTSON 835
Cite as 288 Neb. 823records and therefore no Fourth Amendment claim. We also
conclude that regardless whether the State violated statutory
law, suppression was not an available remedy because there
was no constitutional interest at stake and the statutes them-
selves did not provide for it.
(a) Standard of Review
[7] In reviewing a trial court’s ruling on a motion to sup-
press evidence based on a claimed violation of the Fourth
Amendment, we apply a two-part standard of review.29
Regarding historical facts, we review the trial court’s findings
for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that we review
independently of the trial court’s determination.30
(b) Analysis
[8] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the govern-
ment.31 But Knutson has not raised the Nebraska Constitution
here. His claim is that the county attorney’s subpoena of
his cell phone calls and text messages violated the Fourth
Amendment to the U.S. Constitution.
[9,10] The Fourth Amendment’s protections are implicated
whenever state action intrudes on a citizen’s reasonable expec-
tation of privacy.32 “‘Legitimation of expectations of privacy
by law must have a source outside of the Fourth Amendment,
either by reference to concepts of real or personal property
law or to understandings that are recognized and permitted
by society.’”33
29
State v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014).
30
Id.31
State v. Matit, ante p. 163, 846 N.W.2d 232 (2014).
32
See, e.g., California v. Ciraolo, 476 U.S. 207, 106 S. Ct. 1809, 90 L. Ed.
2d 210 (1986); In re Interest of Corey P. et al., 269 Neb. 925, 697 N.W.2d
647 (2005).
33
United States v. Jacobsen, 466 U.S. 109, 123 n.22, 104 S. Ct. 1652, 80 L.
Ed. 2d 85 (1984).
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We first clarify that the cell phone records in evidence
comprise billing information and toll records,34 detailing the
destination number and times for calls or text messages that
Knutson sent or the source number and times for calls and text
messages that he received. We acknowledge that the subpoenas
were broad enough to obtain the contents of Knutson’s com-
munications, but the record does not include such evidence or
show that the State received this information.
So, in arguing that the county attorney could not obtain
these records through a subpoena, Knutson relies on cases that
are distinguishable. We disagree that this issue is controlled by
cases involving a warrantless search of a person’s cell phone
itself to obtain call logs or content information,35 or cases
in which the prosecution subpoenaed the contents of a sus-
pect’s communications.36
[11] Instead, the issue is governed by Smith v. Maryland.37
There, the U.S. Supreme Court held that law enforcement
officers do not need a warrant to have a telephone company
install a pen register to record the numbers dialed from a
person’s telephone because it is not a search under the Fourth
Amendment. That is, because pen registers disclose only the
telephone numbers dialed and customers largely know that
the telephone company keeps these records, a person has no
subjective expectation of privacy in the records of the num-
bers dialed—as distinguished from the content of the com-
munications. So, under the Fourth Amendment, a warrant
is not required to obtain telephone billing and toll records
because obtaining them by subpoena does not constitute
a search.38
34
See U.S. v. Green, 698 F.3d 48 (1st Cir. 2012).
35
See, U.S.v. Gomez, 807 F. Supp. 2d 1134 (S.D. Fla. 2011); U.S. v.
Quintana, 594 F. Supp. 2d 1291 (M.D. Fla. 2009); State v. Smith, 124
Ohio St. 3d 163, 920 N.E.2d 949 (2009).
36
See State v. Clampitt, 364 S.W.3d 605 (Mo. App. 2012).
37
Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979).
38
See, e.g., U.S. v. Moody, 664 F.3d 164 (7th Cir. 2011); Rehberg v. Paulk,
611 F.3d 828 (11th Cir. 2010); State v. Marinello, 49 So. 3d 488 (La. App.
2010); State v. Johnson, 340 Or. 319, 131 P.3d 173 (2006).
Nebraska Advance Sheets
STATE v. KNUTSON 837
Cite as 288 Neb. 823Alternatively, Knutson argues that the county attorney did
not comply with Neb. Rev. Stat. § 86-2,106 (Reissue 2008)
in subpoenaing his cell phone records. Section 86-2,106
is one of several statutes under the heading “Intercepted
Communications.”39 Section 86-2,106 sets out the requirements
for obtaining from a service provider the stored contents of
electronic communications or its noncontent records.
Under § 86-2,106, subsection (1) requires a government
entity to present a warrant to obtain the contents of electronic
communications that the provider has stored for 180 days or
less. Subsection (3)(a)(ii) provides that absent a subscriber’s
consent, a service provider may disclose noncontent records
to a government entity only when presented with a court
order, warrant, or administrative subpoena. Knutson argues
that a county attorney is not a state agency and cannot issue an
administrative subpoena.
Knutson notes that in 2008, the Legislature amended Neb.
Rev. Stat. § 81-119 (Reissue 2008) to provide that state agen-
cies cannot use their subpoena power for criminal investiga-
tions.40 He recognizes that in the same bill, the Legislature
amended § 86-2,112, as a compromise, to permit the attorney
general or a county attorney to “require the production” of
the following items: “books, papers, documents, and tan-
gible things which constitute or contain evidence relevant
or material to the investigation or enforcement of the laws
of this state when it reasonably appears that such action is
necessary and proper.” But he argues that the Legislature did
not amend § 86-2,106. Because § 86-2,106 is more specific
to the production of electronic communication records than
§ 86-2,112, he contends that § 86-2,112 does not permit a
county attorney to issue an investigative subpoena to require
the production of these records. He contends that through
§ 86-2,106, the Legislature created an expectation of privacy
in these records.
39
See Neb. Rev. Stat. §§ 86-271 to 86-2,115 (Reissue 2008 & Cum. Supp.
2012).
40
See 2008 Neb. Laws, L.B. 952.
Nebraska Advance Sheets
838 288 NEBRASKA REPORTS
[12] But even if Knutson were correct, the violation of a
state law restricting searches is insufficient to show a Fourth
Amendment violation.41 The analysis turns on whether society
recognizes an expectation of privacy deserving of “‘the most
scrupulous protection from government invasion.’”42 Notably,
§ 86-2,106(3)(a)(i) permits a service provider to disclose non-
content records to any person except a governmental entity.
This provision seriously undercuts Knutson’s claim that the
statute creates an expectation of privacy in such records. More
important, under Smith, Knutson cannot show a societal expec-
tation of privacy in the records.
[13] Absent a constitutional violation, a court will normally
suppress evidence obtained in violation of a rule or statute
only if the governing law provides that remedy.43 It is true that
§ 86-2,115 provides for the suppression of the “contents of any
intercepted wire or oral communication,” and any evidence
derived therefrom, “if the disclosure of that information would
be in violation of [the intercepted communications statutes].”
But we are not dealing with intercepted communications44
or the contents of any communications. No other intercepted
communications statute suppresses evidence for a violation
of its provision. So, even if Knutson correctly argues that a
county attorney must comply with § 86-2,106, the Legislature
provided no remedy for a violation. In keeping with the general
principle that courts do not lightly impose a judicial exclusion-
ary remedy,45 we decline to find suppression appropriate in
these circumstances.
41
See California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d
30 (1988).
42
Id., 486 U.S. at 43.
43
See, e.g., Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S. Ct. 2669, 165
L. Ed. 2d 557 (2006); U.S. v. Abdi, 463 F.3d 547 (6th Cir. 2006); U.S. v.
Thompson, 936 F.2d 1249 (11th Cir. 1991); Upshur v. State, 208 Md. App.
383, 56 A.3d 620 (2012).
44
See § 86-280.
45
See Sanchez-Llamas, supra note 43.
Nebraska Advance Sheets
STATE v. KNUTSON 839
Cite as 288 Neb. 8233. Sufficiency of the Evidence
Knutson argues that the evidence was insufficient to con-
vict him of child abuse and child enticement for an illegal
sexual purpose through the use of an electronic communication
device. We disagree.
(a) Standard of Review
[14] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: We do not resolve con-
flicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence; such matters are for the finder of fact.
The relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.46
(b) Analysis
(i) Child Enticement Conviction
Regarding the child enticement conviction, § 28-320.02(1),
in relevant part, provides the following:
No person shall knowingly solicit, coax, entice, or lure
(a) a child sixteen years of age or younger or (b) a peace
officer who is believed by such person to be a child six-
teen years of age or younger, by means of an electronic
communication device as that term is defined in section
28-833, to engage in an act which would be in violation
of section 28-319, 28-319.01, or 28-320.01 or subsection
(1) or (2) of section 28-320.
The State’s operative information alleged that between
January 1 and November 19, 2010, Knutson used an electronic
communication device to solicit, coax, lure, or entice E.A.,
a child under the age of 16 years, to engage in an act which
would constitute a violation of Neb. Rev. Stat. §§ 28-319,
28-319.01, 28-320.01, or 28-320(1) and (2) (Reissue 2008
& Cum. Supp. 2012). But the jury was instructed to find
46
State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
Nebraska Advance Sheets
840 288 NEBRASKA REPORTS
whether Knutson had enticed E.A. to engage in acts that would
constitute the crime of first degree sexual assault. The crime
of first degree sexual assault, as relevant here, is codified in
§ 28-319.01(1)(b):
(1) A person commits sexual assault of a child in the
first degree:
....
(b) When he or she subjects another person who is at
least twelve years of age but less than sixteen years of age
to sexual penetration and the actor is twenty-five years of
age or older.
Knutson agrees the State is not required to show he sexually
penetrated a child under the age of 16 years to prove a viola-
tion of § 28-320.02, the child enticement statute. But he argues
that the State cannot prove he violated § 28-320.02 unless it
shows that he had a specific plan to sexually penetrate E.A.
before she turned 16 years of age in December 2010:
[I]f the plan was to make love after she turned 16 then
there is no violation of 28-319 and therefore no viola-
tion of 28-320.02. Merely discussing, in vague terms, the
desire to “make love” at some unspecified time in the
future does not rise to the level of conduct necessary to
prove an intent to violate 28-319[.01].47
[15] The State counters that the evidence showed Knutson
had explicit conversations with E.A. about acts which consti-
tuted sexual penetration and that E.A. had agreed they should
“take it to the next level,” meaning that they should engage
in sexual penetration. These conflicting arguments present a
question of statutory interpretation, which we decide as a mat-
ter of law.48
[16-20] We give penal statutes a sensible construction,
considering the Legislature’s objective and the evils and mis-
chiefs it sought to remedy.49 Absent a statutory indication
to the contrary, we give words in a statute their ordinary
47
Brief for appellant at 48-49.
48
See State v. Thacker, 286 Neb. 16, 834 N.W.2d 597 (2013).
49
Id.Nebraska Advance Sheets
STATE v. KNUTSON 841
Cite as 288 Neb. 823meaning.50 But we strictly construe penal statutes and do not
supply missing words or sentences to make clear that which
is indefinite or not there.51 We will not apply a penal statute
to situations or parties not fairly or clearly within its pro-
visions.52 Ambiguities in a penal statute are resolved in the
defendant’s favor.53
As relevant here, the conduct prohibited by § 28-320.02(1)
is using an electronic communication device to knowingly
“solicit, coax, entice, or lure” a child 16 years of age or
younger “to engage in an act which would be in violation of”
§ 28-319.01. The verbs in this sentence all deal with the act of
persuading—in this context, persuading someone 16 years of
age or younger to perform a sexual act that is illegal under the
specified statutes.
It is true that in two of our cases dealing with undercover
officers posing as girls under the age of 16 years, the officers
waited to arrest the defendant until he had arranged a meet-
ing and attempted to meet the minor for illegal sexual activ­
ity.54 But those cases do not show that a crime does not occur
unless the defendant arranges a meeting with a minor and the
contemplated sexual activity is illegal at that time. Knutson
misinterprets our decision in State v. Rung55 to support his
position that the defendant must have specifically planned to
sexually penetrate a minor before he or she turned 16 years
of age.
In Rung, the defendant argued that § 28-320.02 was uncon-
stitutionally overbroad because it criminalized enticing a child
16 years of age or younger to engage in sexual conduct, even
if it would not be illegal for the person to engage in such
conduct with the child. For example, he claimed that under
50
See State v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013).
51
See Thacker, supra note 48.
52
Id.53
Id.54
See, State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009); State v. Pischel,
277 Neb. 412, 762 N.W.2d 595 (2009).
55
See Rung, supra note 54.
Nebraska Advance Sheets
842 288 NEBRASKA REPORTS
§ 28-320.02, a 19-year-old could be prosecuted for enticing a
16-year-old to engage in sexual penetration, even though the
conduct would only be illegal if the child were under the age
of 16 years. We rejected this argument:
By its terms, § 28-320.02 specifically refers to enticing
a child “to engage in an act which would be in violation
of section 28-319, 28-319.01, or 28-320.01 or subsection
(1) or (2) of section 28-320.” Therefore, one can violate
§ 28-320.02 only if the contemplated sexual conduct
would be in violation of one of the specified statutes. If
one uses a computer to entice a person 16 years of age or
younger to engage in an act that would not be in violation
of any of the specified statutes, then that person has not
violated § 28-320.02.56
But the defendant in Rung did not raise the argument pre-
sented here. And nothing in this passage implies that we will
look to the legality of the defendant’s contemplated sexual act
at the time that he or she arranged a meeting with the child.
More important, nothing in § 28-320.02 requires the State to
prove that the defendant took a substantial step toward com-
mitting an illegal sexual act. It is not an attempt statute.57
Instead, the statute unambiguously criminalizes the persuasion
itself. Because the statute is focused on persuading a child to
engage in an illegal sexual act, the relevant time for determin-
ing whether the encouraged sexual act illegal will generally
be when the defendant was engaged in the persuasion. But
depending upon the substance of the persuasion, this may
not always be true. Here, the facts do not warrant requiring
further proof of the defendant’s intent to commit an illegal
sexual act.
Viewing the evidence in the light most favorable to the
State, the record shows that Knutson discussed sex multiple
times with E.A. and asked her about her sexual preferences.
She further stated that they both agreed, in person and over the
telephone, they wanted “to take it to the next level.” E.A. testi-
fied that the “next level” meant to “make love.”
56
Id. at 861-62, 774 N.W.2d at 629.
57
Compare Neb. Rev. Stat. § 28-201 (Reissue 2008).
Nebraska Advance Sheets
STATE v. KNUTSON 843
Cite as 288 Neb. 823E.A. stated that her conversations with Knutson about tak-
ing it to the next level occurred near the end of her contacts
with him. She testified that her “phone contact” with Knutson
ended sometime before she was interviewed by police officers,
which occurred on November 19, 2010. When asked whether
Knutson had explained why he stopped his telephone contacts,
E.A. said Knutson told her many things, including that he had
brain cancer. An exhibit documenting her telephone contacts
with Knutson shows that the calls dropped off dramatically in
October 2010.
This evidence was sufficient to support a finding that
Knutson had ended his relationship with E.A. by the time she
was interviewed by police officers. Because E.A. testified that
their conversations about taking it to the next level occurred
before the relationship ended, the jurors could rationally infer
that while E.A. was 15 years of age, Knutson encouraged her
to engage in sexual penetration with him and that she agreed to
do so. We conclude that the evidence was sufficient to support
Knutson’s conviction under § 28-320.02.
(ii) Child Abuse Conviction
The jury instruction for the child abuse charge permitted
the jury to find Knutson guilty of child abuse if it found that
he had knowingly and intentionally caused or permitted E.A.
to be placed in a situation (1) that endangered her mental
health; (2) to be sexually exploited by allowing, encouraging,
or forcing her to solicit for or engage in obscene or porno-
graphic photography, films, or depictions; or (3) to be sex­
ually abused.
The jury instruction reflects the State’s alternative theories
of child abuse, which correspond, respectively, to subsections
(a), (d), and (e) of § 28-707(1). Knutson did not object to this
instruction at trial. The jury could convict if it found Knutson
had committed any of the three acts prohibited by § 28-707. So
the judgment must be affirmed if it was sufficient to support
any of the State’s three theories of guilt.58
58
See State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013).
Nebraska Advance Sheets
844 288 NEBRASKA REPORTS
[21] We conclude that the evidence was sufficient to support
a finding under § 28-707(1)(a) that Knutson placed E.A. in a
situation that endangered her mental health. We disagree the
State “presented absolutely no evidence” in that regard, or that
the State’s claim “demonstrates the lengths to which [it] will
stretch logic and credulity to somehow turn [Knutson’s] actions
into criminal behavior.”59 In interpreting a different subsection
of § 28-707(1), we recently stated that “[t]riers of fact may
apply to the subject before them that general knowledge which
any person must be presumed to have.”60 We believe that it is
within the general knowledge of triers of fact that a sexually
charged relationship between a young, 15-year-old girl and a
man in his 30’s, who holds a position of trust in the girl’s life,
puts that girl’s mental health at risk. Because the evidence was
sufficient to show a violation of § 28-707(1)(a), we do not con-
sider whether it was sufficient to support the State’s alternative
theories of guilt.
V. CONCLUSION
We find no merit to Knutson’s assigned errors regarding
the court’s joining the offenses for a single trial and refusing
to suppress his cell phone records. And we conclude that the
evidence was sufficient to support his convictions for child
enticement and child abuse.
Affirmed.
59
Brief for appellant at 46.
60
Eagle Bull, supra note 58, 285 Neb. at 376-77, 827 N.W.2d at 472.
Miller-Lerman, J., concurring.
I concur in the result in this case, but I respectfully disagree
with the majority’s reading of Neb. Rev. Stat. § 28-320.02(Cum. Supp. 2012). Under that statute, there are at least two
timing issues, but in my view, the majority conflates them
into one.
The most obvious timing question is: When did the entic-
ing occur? I agree with the majority that to be guilty under
Nebraska Advance Sheets
STATE v. KNUTSON 845
Cite as 288 Neb. 823§ 28-320.02, the enticing occurs when the enticement to par-
ticipate in a contemplated illegal act is communicated.
Another timing question is: When is the contemplated act
that is the subject of the enticing to be performed? This tim-
ing question has obvious relevance in the present case because
after E.A. turned 16 years of age, the performance of the act
Knutson was proposing would not have been an illegal act
under Neb. Rev. Stat. § 28-319.01(1)(b) (Cum. Supp. 2012)
as charged.
As I read it, to be guilty of a violation of § 28-320.02, the
act that is the subject of the enticing communication must be
illegal on the day of its contemplated performance, not on the
day of the communication of the desire to perform an act. It
is an element of § 28-320.02 that the enticing be of an illegal
sexual act, not merely a sexual act. By its terms, § 28-320.02
criminalizes enticing an illegal act to be performed in futuro.
The majority states that “the relevant time for determining
whether the encouraged sexual act is illegal will generally
be when the defendant was engaged in the persuasion.” As
I understand it, the majority interprets § 28-320.02 to mean
that in determining whether the encouraged sexual act is an
illegal act, the presumption will be made that the act would be
performed on the date of the communication. I do not believe
the presumption created by the majority is warranted by the
plain language of the statute, and I am not inclined to create
such presumption. Instead, I suggest that the proper analysis is
as follows:
Consistent with State v. Rung, 278 Neb. 855, 774 N.W.2d
621 (2009), the contemplated act must be illegal on the day
the act will have been performed, but the enticing or persuad-
ing offense under § 28-320.02 occurs and is completed on the
day the enticing or persuading is communicated. Whether the
contemplated act will be illegal when performed depends on
all the evidence, direct and indirect, relevant to the timing of
the act. The act’s illegality is as of the day of contemplated
performance, not the day of its communication. In the pres-
ent case, the evidence was sufficient to submit the case to
Nebraska Advance Sheets
846 288 NEBRASKA REPORTS
the jury, and more particularly, there was sufficient evidence
from which a reasonable jury could find that the contemplated
act would be illegal on the day upon which it would have
been performed.
For the foregoing reasons, although my analysis of the
interpretation of § 28-320.02 differs from the majority,
I concur.
James E. Robertson et al., appellants, v.
Jacobs Cattle Company, a partnership,
et al., appellees.
___ N.W.2d ___
Filed August 15, 2014. No. S-13-860.
1. Partnerships: Accounting: Appeal and Error. An action for a partnership dis-
solution and accounting between partners is one in equity and is reviewed de
novo on the record.
2. Equity: Appeal and Error. On appeal from an equity action, an appellate court
resolves questions of law and fact independently of the trial court’s determina-
tions. But when credible evidence is in conflict on material issues of fact, an
appellate court considers and may give weight to the fact the trial court observed
the witnesses and accepted one version of the facts over another.
3. Statutes. Statutory interpretation presents a question of law.
4. Partnerships. The interpretation of a partnership agreement presents a question
of law.
5. Appeal and Error. An appellate court reviews questions of law independently of
the trial court’s decision.
Appeal from the District Court for Valley County: Karin L.
Noakes, Judge. Reversed and remanded with direction.
Patrick J. Nelson, of Law Office of Patrick J. Nelson,
L.L.C., for appellants.
David A. Domina and Megan N. Mikolajczyk, of Domina
Law Group, P.C., L.L.O., and Gregory G. Jensen for appellees.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.