28-1310. Intimidation by telephone call or electronic communication; penalty.
(1) A person commits the offense of intimidation by telephone call or electronic communication if, with intent to intimidate, threaten, or harass an individual, the person telephones such individual or transmits an electronic communication directly to such individual, whether or not conversation or an electronic response ensues, and the person:
(a) Uses obscene language or suggests any obscene act;
(b) Threatens to inflict physical or mental injury to such individual or any other person or physical injury to the property of such individual or any other person; or
(c) Attempts to extort property, money, or other thing of value from such individual or any other person.
(2) The offense shall be deemed to have been committed either at the place where the call or electronic communication was initiated or where it was received.
(3) Intimidation by telephone call or electronic communication is a Class III misdemeanor.
(4) For purposes of this section, electronic communication means any writing, sound, visual image, or data of any nature that is received or transmitted by an electronic communication device as defined in section 28-833.
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Annotations
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).