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After the decoy asked why Kass would want to know, Kass backed off that line of questioning. A short time later, Kass asked what the decoy was wearing. Kass cited nine bases for his motion, including that the statute violated the First Amendment and was vague and overbroad because of its inclusion of a peace officer as a victim. After the presentation of evidence, the court instructed the jury on two subsections of § 28–833, namely subsections (1)(a) and (c). The court did not instruct the jury on the meaning of “indecent, lewd, lascivious, or obscene.” The record, however, does not indicate that Kass ever requested such an instruction. Kass then pressed for further details, including whether the decoy masturbated. After the decoy said that she had never “finished,” Kass asked her, “ you wanna finish? ” Kass answered, “suer ․ or with anyone.” Kass pressed the decoy, later asking, “wanna get off? The conversation then turned to graphic detail regarding oral sex. The decoy then asked Kass if he would be interested in her, considering her age. ” The decoy asked in return, “what bout it.” Kass responded, “wanna? The State later charged Kass with one count of enticement by an electronic communication device in violation of § 28–833. Playboy Entertainment Group, Inc., supra note 12.14.
The decoy responded that she had not had sex but had done “some stuf.” Kass asked if it was “oral fun or just hands? The decoy responded that her grandmother would still be home for “a little while.” The conversation then turned to more personal matters. She responded, “not anymore.” Kass then said, “awesome what all did you do with him? ” The decoy responded that she would go to the movies or just hang out with her boyfriend. ” The decoy responded, “hey now,” as if to indicate that such a question was inappropriate. Although Kass had requested an instruction on the defense of entrapment, the court refused to give it. Overbreadth of § 28–833 Kass' first argument is that § 28–833 is overbroad and thus violates the First Amendment. The court found that the record failed to show entrapment and stated that the defense seemed inconsistent with Kass' other defense that he thought the decoy was over the age of 16. The court then sentenced Kass to 1 year in prison and ordered him to register as a sex offender. ASSIGNMENTS OF ERRORKass raises four assignments of error, which we restate as follows:(1) The court erred in concluding that § 28–833 is not over-broad, in violation of the First Amendment.(2) The court committed plain error in failing to instruct the jury on the definition of “indecent, lewd, lascivious, or obscene.”(3) The court erred in failing to instruct the jury on an entrapment defense.(4) The court erred in imposing an excessive sentence. STANDARD OF REVIEW Whether a statute is constitutional presents a question of law, which we resolve without regard to how the issue was decided below. The First Amendment provides, in relevant part, that “Congress shall make no law ․ abridging the freedom of speech” At oral argument, Kass stressed that he was challenging only subsection (1)(a) as being overbroad. Section 28–833(1) provides: A person commits the offense of enticement by electronic communication device if he or she is nineteen years of age or over and knowingly and intentionally utilizes an electronic communication device to contact a child under sixteen years of age or a peace officer who is believed by such person to be a child under sixteen years of age and in so doing:(a) Uses or transmits any indecent, lewd, lascivious, or obscene language, writing, or sound;(b) Transmits or otherwise disseminates any visual depiction of sexually explicit conduct as defined in section 28–1463.02 [defining terms under Child Pornography Prevention Act]; or(c) Offers or solicits any indecent, lewd, or lascivious act. § 28–320.02 (Reissue 2008), which criminalizes enticement of a child by an electronic communication device to engage in sexual conduct if the sexual conduct would violate specified criminal statutes.