Intimidation by telephone call; penalty; prima facie evidence.
(1) A person commits the offense of intimidation by telephone call if, with intent to terrify, intimidate, threaten, harass, annoy, or offend, the person:
(a) Telephones another anonymously, whether or not conversation ensues, and disturbs the peace, quiet, and right of privacy of any person at the place where the calls are received; or
(b) Telephones another and uses indecent, lewd, lascivious, or obscene language or suggests any indecent, lewd, or lascivious act; or
(c) Telephones another and threatens to inflict injury to any person or to the property of any person; or
(d) Intentionally fails to disengage the connection; or
(e) Telephones another and attempts to extort money or other thing of value from any person.
(2) The use of indecent, lewd, or obscene language or the making of a threat or lewd suggestion shall be prima facie evidence of intent to terrify, intimidate, threaten, harass, annoy, or offend.
(3) The offense shall be deemed to have been committed either at the place where the call was made or where it was received.
(4) Intimidation by telephone call is a Class III misdemeanor.
Source:Laws 1977, LB 38, § 294; Laws 2002, LB 1105, § 433.
A jury instruction founded on the presumption created by subsection (2) of this section is constitutionally impermissible because such an instruction deprives a defendant of the due process right that the State must prove beyond a reasonable doubt each element of the crime charged, and shifts the burden to the defendant to disprove the element of intent in the offense charged. State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).
As interpreted, subsection (1)(b) of this section proscribes only telephone calls made with the intention of causing mental discomfort by the use of language which conjures up repugnant sexual images or which suggests the performance of repugnant sexual acts. State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).
Because subsection (1)(b) of this section concerns itself with sexual speech which intrudes upon the privacy of innocent citizens, not for the purpose of communicating any thought, but for the purpose of causing mental discomfort by conjuring up repugnant sexual images, it regulates in an area in which the State has a compelling interest and therefore cannot be said to be substantially overbroad. State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).
Subsection (1)(b) of this section is not impermissibly vague; it gives fair notice of exactly what is forbidden in terms which are understandable to persons of ordinary intelligence. State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).
The statement "What should I do to retaliate" is sufficient to constitute a threat for purposes of subsection (1)(c) of this section. State v. Methe, 228 Neb. 468, 422 N.W.2d 803 (1988).