State v. Green

• Decision Date: 03 May 2012
• Docket Number: No. 27108.,27108.
• Citation: 724 S.E.2d 664,397 S.C. 268
• Parties: The STATE, Respondent, v. Benjamin P. GREEN, Appellant.
• Court: South Carolina Supreme Court

397 S.C. 268

724 S.E.2d 664

The STATE, Respondent,

v.Benjamin P. GREEN, Appellant.

No. 27108.

Supreme Court of South Carolina.

Heard Feb. 23, 2012.Decided April 4, 2012.Rehearing Denied May 3, 2012.

Deputy Chief Appellate Defender, Wanda H. Carter, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., of Columbia, Solicitor James Strom Thurmond, Jr., of Aiken, for Respondent.

Justice BEATTY.

Benjamin P. Green appeals his convictions for criminal solicitation of a minor ¹ and attempted criminal sexual conduct (“CSC”) with a minor in the second-degree.² In challenging his convictions, Green contends the trial judge erred in: (1) denying his motion to dismiss the charge of criminal solicitation of a minor on the ground the statute is unconstitutionally overbroad and vague; (2) denying his motions to dismiss and for a directed verdict on the charge of attempted CSC with a minor in the second-degree; (3) admitting certain photographs; and (4) denying his request for a jury charge on attempted assault and battery of a high and aggravated nature (“ABHAN”). We affirm.

I. Factual/Procedural History

On October 13, 2006 at 5:38 p.m., Green entered a Yahoo! online chat room under the screen name “blak slyder” and initiated an online chat with “lilmandy14sc” (“Mandy”). On Mandy's profile page was a picture of a female sitting on a bed. Unbeknownst to Green, Mandy was actually an online persona created by Investigator Tommy Platt of the Aiken County Sheriff's Office as part of the Internet Crimes Against Children Task Force.

In response to Green's initial question, Mandy answered “i hooked up with a 16 year old.” Green then asked Mandy, “how young are you?” to which Mandy stated, “14.” Green countered that he was “21.” ³ Immediately thereafter, the chat turned sexual in nature with Green asking Mandy whether she would have sex with him. During the chat, Green sent Mandy two pictures of his penis and stated that he could “show it to [her] in person.” ⁴ Green then arranged to meet Mandy at 7:30 p.m. on a secluded road in Beech Island, South Carolina, which is located in Aiken County.

When Green arrived at the predetermined location, he was met by several law enforcement officers who arrested him. In response to the officers' questions, Green admitted that “he was there to meet a 14–year–old girl.” A search of Green's vehicle revealed a cell phone, a bottle of alcohol, two DVDs, condoms, male enhancement cream and drugs, and handwritten directions to the location.

Subsequently, Green was indicted and ultimately convicted by a jury for criminal solicitation of a minor and attempted CSC with a minor in the second-degree. Green appealed his convictions to the Court of Appeals. This Court certified the appeal from the Court of Appeals pursuant to Rule 204(b) of the South Carolina Appellate Court Rules.

II. Discussion

A. Constitutionality of Criminal Solicitation of a Minor Statute

In a pre-trial hearing and at the conclusion of the State's case, Green moved for the trial judge to declare unconstitutional section 16–15–342, the criminal solicitation of a minor statute, on the grounds it is overbroad and vague. Specifically, he claimed the statute is not narrowly tailored and, as a result, “chills free speech.” The judge summarily denied the motion.

On appeal, Green challenges section 16–15–342 as facially overbroad because one can be found guilty under the statute “when he contacts a minor for any one of six activities under 16–15–375(5) or any one of at least twenty-nine activities under 16–1–60.” Because the statute does not identify what forms of communication are prohibited, Green claims the content of any communication would “trigger a violation of the statute.” Ultimately, Green claims the statute is “so overbroad that it ensnares” protected speech.

In a related argument, Green asserts this lack of specificity demonstrates that the statute is vague. Green contends the provisions of the statute are vague as to “what forms of communications and what content of such communications would be criminalized as solicitations.” Because the statute is not sufficiently definite, Green avers that “[a] person of ordinary intelligence would not know what speech, expression or contact would result in a violation of the statute.”

“When the issue is the constitutionality of a statute, every presumption will be made in favor of its validity and no statute will be declared unconstitutional unless its invalidity appears so clearly as to leave no doubt that it conflicts with the constitution.” State v. Gaster, 349 S.C. 545, 549–50, 564 S.E.2d 87, 89–90 (2002). “This presumption places the initial burden on the party challenging the constitutionality of the legislation to show it violates a provision of the Constitution.” State v. White, 348 S.C. 532, 536–37, 560 S.E.2d 420, 422 (2002).

Applying these well-established rules regarding the constitutionality of a statute, our analysis begins with a review of the text of the challenged statute. Section 16–15–342 provides in pertinent part:

(A) A person eighteen years of age or older commits the offense of criminal solicitation of a minor if he knowingly contacts or communicates with, or attempts to contact or communicate with, a person who is under the age of eighteen, or a person reasonably believed to be under the age of eighteen, for the purpose of or with the intent of persuading, inducing, enticing, or coercing the person to engage or participate in a sexual activity as defined in Section 16–15–375(5) or a violent crime as defined in Section 16–1–60, or with the intent to perform a sexual activity in the presence of the person under the age of eighteen, or person reasonably believed to be under the age of eighteen.

(B) Consent is a defense to a prosecution pursuant to this section if the person under the age of eighteen, or the person reasonably believed to be under the age of eighteen, is at least sixteen years old.

(C) Consent is not a defense to a prosecution pursuant to this section if the person under the age of eighteen, or the person reasonably believed to be under the age of eighteen, is under the age of sixteen.

(D) It is not a defense to a prosecution pursuant to this section, on the basis of consent or otherwise, that the person reasonably believed to be under the age of eighteen is a law enforcement agent or officer acting in an official capacity.

S.C.Code Ann. § 16–15–342 (Supp.2011). Section 16–15–375 defines “sexual activity” by identifying six acts, which include “vaginal, anal, or oral intercourse” and “touching, in an act of apparent sexual stimulation or sexual abuse.” S.C.Code Ann. § 16–15–375(5) (2003).

1. Overbroad ⁵

“It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” Broadrick v. Oklahoma, 413 U.S. 601, 611–12, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

In discussing the overbreadth doctrine, the United States Supreme Court (“USSC”) has stated:

According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech. The doctrine seeks to strike a balance between competing social costs. On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, invalidating a law that in some of its applications is perfectly constitutional—particularly a law directed at conduct so antisocial that it has been made criminal—has obvious harmful effects. In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep. Invalidation for overbreadth is strong medicine that is not to be casually employed.

United States v. Williams, 553 U.S. 285, 292–93, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (citations omitted) (emphasis in original). “To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.” Broadrick, 413 U.S. at 615, 93 S.Ct. 2908.

In analyzing Green's constitutional challenge to section 16–15–342, we initially note that speech used to further the sexual exploitation of children has been routinely denied constitutional protection as the State has a compelling interest in preventing the sexual abuse of children. In fact, the USSC has expressly stated that “[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection.” Williams, 553 U.S. at 297, 128 S.Ct. 1830. Moreover, “[c]ourts have recognized that speech used to further the sexual exploitation of children does not enjoy constitutional protection, and while a statute may incidentally burden some protected expression in carrying out its objective, it will not be held to violate the First Amendment if it serves the compelling interest of preventing the sexual abuse of children and is no broader than necessary to achieve that purpose.” Cashatt v. State, 873 So.2d 430, 434–35 (Fla.Dist.Ct.App.2004); see New York v. Ferber, 458 U.S. 747, 756–57, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (recognizing that the prevention of sexual exploitation of children and abuse of children constitutes a government objective of surpassing importance).

In view of this compelling interest, the question becomes whether section 16–15–342 is narrowly...