Britt v. State
| Citation | 752 P.2d 426 |
| Decision Date | 07 April 1988 |
| Docket Number | No. 87-207,87-207 |
| Parties | Freddie Lou BRITT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Wyoming Public Defender Program; Leonard D. Munker, State Public Defender, Cheyenne, Wyoming Defender Aid Program, Gerald M. Gallivan, Director, Christopher S. Leigh, Student Intern, Laramie, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Asst. Atty. Gen., Cheyenne, for appellee.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
Appellant Freddie Lou Britt challenges his conviction and sentence for two counts of immodest, immoral and indecent liberties with a minor, in violation of § 14-3-105, W.S.1977 (July 1986 Replacement). Appellant was sentenced to two terms of five to ten years to be served concurrently with credit for presentence incarceration to be taken off both the minimum and maximum sentences.
Appellant frames the issues on appeal as:
We affirm.
On August 25, 1986, appellant, a forty-two-year old male, was arrested and charged with two counts of taking immodest, immoral and indecent liberties with a minor. The counts related to two different teenage minors. Count I of an amended information alleged that appellant did " * * * [O]n or between the 29th day of June, 1986, and the 6th day of July, 1986, unlawfully take immodest, immoral, and indecent liberties with a minor, to-wit: an unnamed male child, age 13, to-wit: sometime between the dates referred to above at the location commonly known as the old Lyman town dump, the defendant was in the company of a male who is approximately thirteen (13) years of age; the defendant grabbed and rubbed the crotch area of the thirteen (13) year old and then asked the thirteen (13) year old to pull down his pants and expose his penis * * *." Count II of the information alleged that appellant did "[O]n or between the 29th day of June, 1986, and the 6th day of July, 1986, unlawfully take immodest, immoral, and indecent liberties with a minor, to-wit: an unnamed male who is aged fourteen (14), to wit: the defendant while in the company of a fourteen (14) year old male, in the vicinity of the Black's Fork River where it crosses Interstate 80 near Lyman, Wyoming, grabbed the fourteen (14) year old's crotch and began to stroke it * * *."
Evidence elicited at trial substantiated the allegations contained in the information and included the following facts. From June 29, 1986, to July 6, 1986, appellant, a Michigan resident, was visiting friends in Lyman, Wyoming. During this visit, the friends gave appellant free access to their van, which appellant used to take various neighborhood children on fishing and shooting expeditions. During one such expedition, appellant let RK, the thirteen-year old, drive the van while sitting on the lap of appellant. RK testified that while driving, appellant said to him: "If you don't stop hitting the brakes, my dick will go straight up your ass." RK further testified that appellant rubbed RK's penis for a few seconds on the outside of his jeans until RK pulled appellant's hand off because he did not like it. RK testified that he thought appellant was just "joking around," but stated that appellant placed his hand on RK's lap intentionally. Appellant told RK not to say anything to anyone about what they did that day, and also told RK that he loved him. Appellant then asked RK to show him his penis because he wanted to compare its size with that of another boy. RK did not comply.
SB, the fourteen-year old, also testified against appellant. SB stated that while he was fishing with appellant he was uncomfortable because appellant hugged him and said that he loved him. He testified that while he was driving to the old junk yard, sitting between appellant's legs, appellant grabbed him between the crotch area on the outside of his pants and told him that he had "big balls." SB stated that the grabbing was not done by accident. Appellant also asked SB to show him his penis, and not to tell anyone what had happened. SB testified that appellant would rub the "[O]utside of [SB's] my thigh" at various times, and call him "big balls." A third witness testified that he saw appellant touch SB's leg "[A] little bit above the kneecaps,* * *" but that he didn't see appellant do any of the other alleged activities.
Appellant was found guilty on both counts, and ordered to undergo psychiatric examination at the Wyoming State Hospital before sentencing. Appellant failed to cooperate with the examiners and was sentenced to two terms of five to ten years to be served concurrently with credit off both the minimum and maximum sentences for time served in presentence incarceration. This appeal followed.
Appellant's first contention on appeal is that § 14-3-105, is unconstitutionally vague in that the words "immodest, immoral and indecent," contained within the statute, lack definitive meanings. Section 14-3-105 provides in part:
* * * " In the Interest of CB, Wyo., 749 P.2d 267, 268-269 (1988).
See also Stone v. State, Wyo., 745 P.2d 1344, 1349 (1987). With this in mind, we address appellant's vagueness challenge.
The constitutional standard for vagueness of a criminal statute has been defined by this court. "An ordinance or statute is void for vagueness if it fails to give a person of ordinary sensibility fair notice that the contemplated conduct is forbidden. * * * " Keser v. State, Wyo., 706 P.2d 263, 266 (1985), quoted in Shunn v. State, Wyo., 742 P.2d 775, 777 (1987). While there is a strong presumption of constitutionality, Scadden v. State, Wyo., 732 P.2d 1036, 1039 (1987), "[A] statute is unconstitutionally vague when 'men of common intelligence must necessarily guess at its meaning and differ as to its application.' * * * " Jenkins v. Werger, 564 F.Supp. 806 (D.Wyo., 1983), quoted in Shunn v. State, supra. " ' * * * The underlying principle is that no man shall be held criminally liable for conduct which he could not reasonably understand to be proscribed.' " Keser v. State, supra, at 265-266 (quoting United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954)).
We have addressed the exact constitutional challenge raised by appellant in a previous case, Sorenson v. State, Wyo., 604 P.2d 1031 (1979). Appellant concedes in his brief that "Sorenson is virtually indistinguishable * * * " from this case. In Sorenson, we found § 14-3-105 to be constitutional in that
" * * * [A] person of ordinary intelligence can weigh his contemplated conduct against the prohibition of taking immodest, immoral or indecent liberties or assault against a child and know whether or not such contemplated conduct is proscribed by it. * * * " Sorenson v. State, supra at 1035.
In other words, a person of ordinary intelligence would know that the rubbing and grabbing of the penises of thirteen and fourteen year-old boys is clearly conduct which is forbidden as "immodest, immoral or indecent liberties." Section 14-3-105.
Despite his concession, appellant asks us to overrule our holding in Sorenson v. State, supra, and find the statute unconstitutional. We see no reason to do this. Our holding in Sorenson controls on this issue. Section 14-3-105 is not unconstitutionally vague. As such, no violation of a clear and unequivocal rule of law occurred upon which to reverse appellant's conviction.
Appellant's second contention is that the trial court committed reversible error in failing to give jury instructions requiring that both specific and general intent be proved by the state when a person is charged with a violation of § 14-3-105. There is no evidence in the record on appeal that appellant ever objected to the instructions given or offered alternate instructions before the jury began its deliberations. Rule 51, Wyoming Rules of Civil Procedure, 1 states in part:
"No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection. * * * "
Since no objection was made to the instructions given, any error must be considered under the plain error doctrine discussed above in reference to appellant's first issue. Stone v. State, supra, at 1353.
In the past we have recognized our authority under the plain error doctrine to set aside an improper verdict which resulted from the issuance of defective instructions to which no objections...
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