State v. Gaskill

236 	284 NEBRASKA REPORTS
residence, it is rational to require such persons to update their
registration more frequently than other registrants.
In his as-applied challenge, Harris contends that because
he travels frequently for work, he is more heavily burdened
than other registrants by frequent registration requirements.
However, in terms of equal protection analysis, Harris’ travel
profile makes the classification more compelling. Measured
against Harris’ facts, the classification is rationally related to
SORA’s purpose.
We conclude that Harris has not met his burden to show that
§ 29-4004(9) violates equal protection standards. The district
court did not err when it rejected Harris’ equal protection chal-
lenge to the statute.
CONCLUSION
We conclude that the district court did not err when it
rejected 	the 	constitutional 	challenges 	that 	were 	properly
raised by Harris in this criminal proceeding that implicated
§§ 	29-4004(9) 	and 	29-4011. 	We 	therefore 	affirm 	Harris’
Class IV felony conviction under § 29-4011(1) based on his
failure to comply with § 29-4004(9) of SORA.
A ffirmed.
StephAn, J., participating on briefs.
StAte of nebrASkA, Appellee, v.
timothy GASkill, AppellAnt.
817 N.W.2d 754
Filed July 27, 2012. 	No. S-11-528.
1. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitu-
tionality and construction of a statute are questions of law, regarding which an
appellate court is obligated to reach conclusions independent of those reached by
the court below.
2. Constitutional Law: Statutes: Presumptions. A statute is presumed to be con-
stitutional, and all reasonable doubts are resolved in favor of its constitutionality.
Appeal from the District Court for Lancaster County: robert
r. otte, Judge. Affirmed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

STATE v. GASKILL 	237
Cite as 284 Neb. 236
Joshua W. Weir, of Dornan, Lustgarten & Troia, P.C., L.L.O.,
for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
heAvicAn, c.J., WriGht, connolly, mccormAck, miller-
lermAn, and cASSel, JJ.
miller-lermAn, J.
NATURE OF CASE
Timothy Gaskill appeals his Class IV felony conviction
under Neb. Rev. Stat. § 29-4011(1) (Cum. Supp. 2010) based
on his failure to comply with certain registration provisions
of Neb. Rev. Stat. § 29-4004(9) (Cum. Supp. 2010) of the
Sex 	Offender 	Registration Act 	(SORA), 	Neb. 	Rev. 	Stat.
§§ 29-4001 through 29-4014 (Reissue 2008, Cum. Supp.
2010 & Supp. 2011). Gaskill claims that the district court
for Lancaster County erred when it rejected his constitu-
tional challenges to SORA. We conclude that the challenges
asserted by Gaskill are without merit, and we therefore affirm
Gaskill’s conviction.
STATEMENT OF FACTS
Gaskill was convicted of attempted first degree sexual
assault in 1995. He was sentenced by the district court for
Buffalo County to 45 days in jail and probation for 2 years.
SORA had not been enacted at the time of Gaskill’s convic-
tion, but because he was still on probation on January 1,
1997, he became subject to then newly enacted SORA. See
§ 29-4003. Gaskill was released from probation in April 1997.
In 2009, Gaskill was notified that because of changes to
SORA effective January 1, 2010, he would be subject to life-
time registration.
Since approximately July 2007, Gaskill, his wife, and their
two daughters lived in an apartment in Lincoln, Nebraska, on
a year-to-year lease. Gaskill asserted that they never missed
a rent payment and had not received complaints or had any
problems. However, on April 1, 2010, Gaskill and his family

238 	284 NEBRASKA REPORTS
received a notice to vacate their apartment and were given 3
days to move out. Gaskill was told by the apartment manager
that the family was being evicted because other tenants had
complained after learning that he was listed on the Nebraska
sex offender registry. Gaskill had not previously been listed on
the sex offender Web site because he was determined to be at
low risk to reoffend, but because of changes to SORA, he had
been listed on the Web site since January 1, 2010.
On April 4, 2010, the family went to an extended-stay hotel
while they searched for a new home. On April 9, they were
informed that they could no longer stay at the extended-stay
hotel because Gaskill was listed on the sex offender registry,
and they were given 1 hour to leave. They stayed at another
hotel on the night of April 9, and on April 10, they moved into
a new residence.
On April 30, 2010, deputies with the Lancaster County sher-
iff’s office attempted to locate Gaskill at the apartment for a
compliance check to verify his last registered address. Deputies
were told that Gaskill had been evicted but had not left a for-
warding address. Deputies contacted Gaskill by telephone on
May 1 and asked him to come to the sheriff’s office to update
his registration. Gaskill complied and completed a form report-
ing his new address. Gaskill was then arrested for failing to
timely report his change of address and his transient status
after being evicted from the apartment. Under § 29-4004(9), a
registrant “who no longer has a residence, temporary domicile,
or habitual living location shall report such change in person to
the sheriff of the county in which he or she is located, within
three working days after such change in residence, temporary
domicile, or habitual living location.”
The State filed an information in the district court for
Lancaster County charging Gaskill under § 29-4011(1), which
provides that “[a]ny person required to register under [SORA]
who violates the act is guilty of a Class IV felony.” Although
the State did not cite § 29-4004(9) in the information, it used
the language of § 29-4004(9) when it alleged that when Gaskill
“no longer ha[d] a residence, temporary domicile, or habitual
living location,” and he had “fail[ed] to report such change in
person to the sheriff of the county in which he [was] located,

STATE v. GASKILL 	239
Cite as 284 Neb. 236
within three working days after such change in residence, tem-
porary domicile, or habitual living location.”
Gaskill filed a motion to quash the information because “the
statutory scheme from which the criminal complaint arises is
unconstitutional on its face and as applied to [Gaskill].” In the
motion, he asserted two constitutional challenges to certain
sections of SORA: an ex post facto challenge to §§ 29-4001.01
through 29-4006 and 29-4009 through 29-4013, and a due
process challenge to §§ 29-4009 and 29-4013. Gaskill gener-
ally challenged amendments made to SORA by two legislative
enactments—2009 Neb. Laws, L.B. 97, which became opera-
tive on May 21, 2009, and 2009 Neb. Laws, L.B. 285, which
became operative on January 1, 2010. With regard to the ex
post facto challenge, Gaskill contended that the 2009 amend-
ments imposed retroactive and additional punishment for his
1995 conviction. With regard to the due process challenge,
Gaskill contended that the 2009 amendments violated his due
process rights by eliminating the individual assessment to
determine the level of community notification and by imposing
Web site notification for all registrants.
The district court overruled Gaskill’s motion to quash.
In its order ruling on the motion, filed November 16, 2010,
the court noted a case pending in the U.S. District Court
for Nebraska, in which the federal court had preliminarily
enjoined the State of Nebraska from enforcing certain provi-
sions of SORA as amended by L.B. 97 and L.B. 285 as to
those previously convicted of sex crimes but not on proba-
tion, parole, or court-monitored supervision after January 1,
2010. See Doe v. Nebraska, 734 F. Supp. 2d 882 (D. Neb.
2010). The court noted in particular that the federal court
had enjoined the enforcement of § 29-4006(2) (requiring
consent to search and installation of monitoring hardware
and software) and Neb. Rev. Stat. § 28-322.05 (Cum. Supp.
2010) (making it crime to use Internet social networking sites
accessible by minors by person required to register under
SORA). The district court noted that in a subsequent order,
the federal court had ordered that a trial was necessary to
determine the constitutionality of § 29-4006(1)(k) and (s)
(requiring disclosure of certain identifiers, e-mail addresses,

240 	284 NEBRASKA REPORTS
electronic domains, and Internet sites); § 29-4006(2) (requir-
ing registrant to consent to search and monitoring of hardware
and software); and § 28-322.05 (making it crime to use social
networking sites or chat room services accessible by minors).
See Doe v. Nebraska, supra. The court finally noted that the
federal court had concluded in Doe that there was no merit to
the plaintiffs’ constitutional challenges to all other statutory
provisions enacted or amended by L.B. 97 and L.B. 285. See
Doe v. Nebraska, supra. Based on the federal court’s rulings
in Doe, the court concluded that Gaskill’s motion to quash
should be overruled.
Thereafter, Gaskill entered a plea of not guilty. After the
State rested its case in a stipulated bench trial, Gaskill renewed
the objections he made in the motion to quash and the district
court overruled the motion. After Gaskill rested his defense,
he moved the court to dismiss the action as unconstitutional
because it violated the Ex Post Facto and Due Process Clauses
as applied to him. The court overruled the motion, and there-
after, the court found Gaskill guilty of violating SORA, a
Class IV felony under § 29-4011, because he had failed to
report a change in his residence, temporary domicile, or habit-
ual living condition to the sheriff within 3 working days after
such change in violation of § 29-4004(9). The court sentenced
Gaskill to pay a fine of $250 and costs of the action and to
serve 200 hours of community service.
Gaskill appeals his conviction.
ASSIGNMENTS OF ERROR
Gaskill claims that the district court erred when it rejected
his constitutional challenges to SORA as amended in 2009.
He specifically asserts that SORA as amended violates the Ex
Post Facto and Due Process Clauses of the U.S. and Nebraska
Constitutions on its face and as applied to him.
STANDARD OF REVIEW
[1] The constitutionality and construction of a statute are
questions of law, regarding which we are obligated to reach
conclusions independent of those reached by the court below.
State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011).

STATE v. GASKILL 	241
Cite as 284 Neb. 236
ANALYSIS
[2] We note first that a statute is presumed to be consti-
tutional, and all reasonable doubts are resolved in favor of
its constitutionality. Sarpy Cty. Farm Bureau v. Learning
Community, 283 Neb. 212, 808 N.W.2d 598 (2012). We note
further that Gaskill filed a motion to quash raising facial chal-
lenges to SORA based on the Ex Post Facto and Due Process
Clauses that was substantially the same as the motion to quash
filed by the defendant in State v. Harris, ante p. 214, 817
N.W.2d 258 (2012), a decision filed this same day. Similar
to the defendant in Harris, Gaskill also raised as-applied
challenges based on the Ex Post Facto and Due Process
Clauses. Unlike the defendant in Harris, Gaskill did not
raise as-applied challenges based on the Equal Protection and
Commerce Clauses.
Similar to our analysis in Harris, we conclude that Gaskill
had standing in this criminal action to challenge only those
statutes under which he was being prosecuted—§§ 29-4004(9)
and 29-4011. See State v. Cushman, 256 Neb. 335, 589
N.W.2d 533 (1999). In Harris, we concluded that a facial
due process challenge was not properly before us because the
motion to quash did not assert such a challenge to the statutes
at issue. In addition, in Harris, we concluded that § 29-4011
was prospective and § 29-4004(9) was not punitive and that
therefore, the statutes at issue were not facially violative of ex
post facto principles under the intent-effects framework articu-
lated in In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233
(2011), cert. denied 565 U.S. 919, 132 S. Ct. 341, 181 L. Ed.
2d 214. We reject Gaskill’s facial challenges to §§ 29-4004(9)
and 29-4011 based on due process and ex post facto grounds
for the same reasons we rejected the same challenges in
Harris. Because the present case involves a different set of
facts than those in Harris, we separately analyze Gaskill’s
as-applied challenges.
As was the case in Harris, Gaskill makes no as-applied
challenge based on the due process clause with regard to
§§ 29-4004(9) and 29-4011; his due process arguments focus
on the notification provisions of §§ 29-4009 and 29-4013,
which are not the subject of this prosecution. We therefore

242 	284 NEBRASKA REPORTS
conclude that the district court did not err when it rejected
Gaskill’s as-applied due process challenge.
Gaskill claims that § 29-4004(9) violated ex post facto
principles as applied to him. Gaskill argues that § 29-4004(9)
was punitive under the circumstances of his case and there-
fore unconstitutional as applied to him, because § 29-4004(9)
required him to report his change to transient status within 3
working days after he no longer had a residence. He contends
that such timeframe was too stringent because he was evicted
from his apartment, had to leave immediately, and could not
meet the 3-day timeframe.
The record shows that Gaskill received an eviction notice
on April 1, 2010, and moved out of his residence on April
4. Gaskill did not report the change until May 1, after being
contacted by the sheriff’s office. Gaskill failed to comply
with § 29-4004(9) for several weeks. Therefore, whether
or not the 3-day requirement of § 29-4004(9) might be too
stringent as applied to another registrant who was unable to
comply or whose compliance was interfered with, Gaskill did
not report his change until nearly 30 days after required to
do so, and he has not demonstrated facts that show that the
effect of § 29-4004(9) was punitive as applied to him. We
therefore reject Gaskill’s as-applied ex post facto challenge
to § 29-4004(9).
CONCLUSION
We reject Gaskill’s facial constitutional challenges based
on due process and ex post facto grounds on the same basis
we rejected these challenges in State v. Harris, ante p. 214,
817 N.W.2d 258 (2012), generally for the reasons that his due
process challenge is not before us and the statutes at issue
were either prospective or not punitive and thus not violative
of ex post facto principles. Regarding Gaskill’s as-applied
challenges, Gaskill did not make an as-applied due process
challenge to the statutes at issue and for reasons explained
above, we reject Gaskill’s as-applied ex post facto challenge.
The district court did not err when it rejected the constitutional
challenges that were properly raised by Gaskill in his criminal
proceeding that implicated §§ 29-4004(9) and 29-4011. We

STATE v. GASKILL 	243
Cite as 284 Neb. 236
therefore affirm Gaskill’s Class IV felony conviction under
§ 29-4011(1) based on his failure to comply with § 29-4004(9)
of SORA.
A ffirmed.
StephAn, J., participating on briefs.