Constantino v. State, 34704

• Decision Date: 02 May 1979
• Docket Number: No. 34704,34704
• Citation: 243 Ga. 595,255 S.E.2d 710
• Parties: CONSTANTINO v. The STATE.
• Court: Georgia Supreme Court

Page 710

255 S.E.2d 710

243 Ga. 595

CONSTANTINO v. The STATE.

No. 34704.

Supreme Court of Georgia.

Submitted March 16, 1979.

Decided May 2, 1979.

H. B. Edwards, III, Valdosta, for appellant.

H. Lamar Cole, Dist. Atty., Richard W. Shelton, Asst. Dist. Atty., for appellee.

BOWLES, Justice.

The evidence in this case would authorize the jury to find the following facts:

In October, 1977, appellant, Frank Constantino, telephoned Mr. John Paul Jones, a news reporter, and asked him to investigate certain difficulties appellant and his wife were having, particularly with the Department of Family & Children Services, which was attempting to take custody of the Constantinos' three children away from them. Mr. Jones went to visit appellant and his wife and subsequently investigated their allegations. After investigation, Mr. Jones determined that there was no news story to be had and informed appellant and his wife of this determination. Nevertheless, appellant and his wife continued to telephone Mr. Jones urging him to resume his investigation. The Constantino children were removed from the Constantino home by the Department of Family & Children Services, and on November 3, 1977, Mr. Jones testified at the DFCS custody hearing. The children were placed in foster care and on the Saturday following the hearing Mr. and Mrs. Jones began receiving harassing phone calls from appellant and his wife. Mr. Jones testified that he had never received such phone calls prior to the hearing but that he had received hundreds since. At first the phone calls from appellant and his wife contained conversation but when Mr. Jones threatened to record the voices if they did not stop calling, the conversations ceased and the callers would simply telephone and then hang up when the Jones' phone was answered. Mrs. Jones counted fifty-four telephone calls in a three hour period one day. After trying without success to get the phone calls stopped, ¹ Mr. Jones finally contacted the telephone company. On December 16, 1977, a telephone "drop" or "security trap" was placed on Mr. Jones' telephone line. This device would reveal the originating telephone number of all calls received by the Jones' telephone. Over a two day period, ten calls came in from appellant's telephone number. The security trap was removed from the Jones' phone on December 23, 1977. Appellant and his wife were indicted for 12 counts of Using a Telephone for the Purpose of Harassment. Appellant appeals his conviction to this court.

We affirm.

Appellant was indicted for the offense of Using a Telephone for the Purpose of Harassment. There was some question at trial as to whether or not Code Ann. §§ 26-2610(e) or 104-9901 was the specific statute appellant was being prosecuted under, however, the language of the indictment was sufficiently specific as to apprise appellant of the crime with which he was charged. Appellant was accused of knowingly and wilfully telephoning John Paul Jones and his wife, Jan Jones, repeatedly for the purpose of annoying, harassing and molesting them.

1. Appellant filed a general demurrer attacking the constitutionality of the statute under which he was indicted claiming it violates due process. Assuming arguendo that such challenge was timely and appropriately raised, we find the pertinent portions of both statutes constitutional. Code Ann. § 26-2610 states: "A person who commits any of the following acts is guilty of a misdemeanor: . . . (e) Telephones another repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing or molesting another or his family, or uses over the telephone language threatening bodily harm . . ." Code Ann. § 104-9901 provides that the following act is a misdemeanor: "Whoever by means of telephone communication in this State: . . . (b) makes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number . . ." Appellant contends that this language is unconstitutionally vague and broad and thus violates due process as it fails to give adequate guidance to people trying to be law abiding and fails to advise defendants of the offense with which they are charged.

Due process only requires that a statute convey a "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947). The plain meaning of the two statutes in question is that an individual may not make telephone calls for the purpose of harassing someone. The statutes are clear and could be readily understood by people of ordinary intelligence seeking to avoid their violation. See, Lanthrip v. State, 235 Ga. 10, 218 S.E.2d 771 (1975), see also, Haisman v. State, 242 Ga. 896, 897, 252 S.E.2d 397 (1979).

Appellant's primary complaint is that "what is or is not harassing, annoying or bothersome is merely a question of one's own interpretation." Presumably what appellant means by this is that a defendant telephoning someone could never know if he is harassing that person since what may be harassing to that person might not be harassing to another, i. e. the defendant will never know if he is committing a crime or not. The fallacy in this theory is that the victim's subjective ideas on what is or is not harassing are not in issue. The point is that the defendant telephones Intending to harass and the defendant certainly knows if he is doing that.

Appellant's challenge to the constitutionality of the statutes is without merit.

2. Appellant asserts that the trial court erred in refusing to allow his counsel to show the jury that appellant's daughters had access to his...