DOUGHERTY v. The State of Wyo.

• Decision Date: 21 September 2010
• Docket Number: No. S-10-0016.,S-10-0016.
• Citation: 239 P.3d 1176,2010 WY 127
• Parties: Ricky L. DOUGHERTY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

239 P.3d 1176

2010 WY 127

Ricky L. DOUGHERTY, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S-10-0016.

Supreme Court of Wyoming.

Sept. 21, 2010.

COPYRIGHT MATERIAL OMITTED.

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General. Argument by Mr. Smith.

Before KITE, C.J., and GOLDEN, HILL, VOIGT ^* , and BURKE, JJ.

KITE, Chief Justice.

[¶ 1] Ricky L. Dougherty challenges his conviction for child endangerment. He claims Wyo. Stat. Ann. § 6-4-403(b)(iii) (LexisNexis 2009), which makes it a crime to knowingly “[c]ommit any indecent or obscene act in the presence of a child,” is unconstitutionally vague. Mr. Dougherty also asserts that the district court improperly instructed the jury.

[¶ 2] We conclude the statute is sufficiently definite and the jury instructions were not erroneous. Consequently, we affirm.

ISSUES

[¶ 3] Mr. Dougherty and the State present identical issues on appeal:

I. Is W.S. § 6-4-403(b)(iii) unconstitutionally vague?

II. Was the jury properly instructed?

FACTS

[¶ 4] On February 20, 2008, the retail investigator/loss prevention manager for King Soopers grocery store in Cheyenne was monitoring the store's security camera system and observed a man walking around the store masturbating. As he continued to watch, the investigator noticed that the man's attention seemed to be focused on a little girl who was shopping with her family. The man continued to follow the child and her family around the store while manipulating his genitals. The investigator contacted law enforcement and they identified the man as Mr. Dougherty.

[¶ 5] The State charged Mr. Dougherty with endangering the child by committing an indecent or obscene act, i.e., masturbation, in her presence in violation of § 6-4-403(b)(iii). The charge was a felony pursuant to § 6-4-403(c) because he had previously been convicted of the same crime. After numerous procedural moves, including a failed plea agreement, the matter was finally tried in August 2009. The jury returned a guilty verdict, and the district court sentenced Mr. Dougherty to serve four to five years in prison. He filed a timely notice of appeal.

DISCUSSION

A. Constitutionality of the Statute

[¶ 6] Mr. Dougherty argues that § 6-4-403(b)(iii) is unconstitutionally vague both on its face and as applied to him. Constitutional challenges are reviewed de novo. Teniente v. State, 2007 WY 165, ¶ 83, 169 P.3d 512, 536 (Wyo.2007); Rabuck v. State, 2006 WY 25, ¶ 13, 129 P.3d 861, 864 (Wyo.2006); Giles v. State, 2004 WY 101, ¶ 10, 96 P.3d 1027, 1030 (Wyo.2004). Our review, however, starts with the presumption that the statute is constitutional. Teniente, ¶ 83, 169 P.3d at 536; Giles, ¶ 10, 96 P.3d at 1030.

1. Facial Challenge

[¶ 7] The United States and Wyoming constitutions prohibit the promulgation of vague or uncertain statutes. Rabuck, ¶ 14, 129 P.3d at 864. In general,

[a] statute violates due process under the Fifth and Fourteenth Amendments of the United States Constitution on vagueness grounds and is void if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute, and violates equal protection if it encourages arbitrary and erratic arrests and convictions.

Moe v. State, 2005 WY 58, ¶ 9, 110 P.3d 1206, 1210 (Wyo.2005) (internal citations omitted). A statute is subject to a facial constitutional challenge in only two circumstances: 1) when the statute affects a substantial amount of constitutionally protected conduct; or 2) when the statute provides no standard of conduct at all. Id. See also, Teniente, ¶ 86, 169 P.3d at 536.

[¶ 8] Mr. Dougherty does not contend that § 6-4-403(b)(iii), which prohibits a person from knowingly committing “any indecent or obscene act in the presence of a child,” reaches a substantial amount of constitutionally protected conduct. Consequently, we must decide whether the statute provides a standard of conduct.

[¶ 9] Mr. Dougherty claims that the meaning of the words “indecent” and “obscene” is uncertain and unconstitutionally leaves the determination of what acts fall within the purview of the statute to the police, prosecutor and jury without providing them any legally fixed standard. He directs us to Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and other similar cases, including United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) and Holder v. Humanitarian Law Project, --- U.S. ----, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010), in support of his assertion that the statute is unconstitutionally vague. In Reno, 521 U.S. at 874, 117 S.Ct. at 2346, the United States Supreme Court determined that the Communications Decency Act, 47 U.S.C. § 223(a), was overbroad because it criminalized a substantial amount of constitutionally protected expression when it prohibited the “knowing” transmission of “obscene or indecent” messages to any recipient under the age of eighteen. That decision does not, however, govern this case because it was decided on the basis of the First Amendment and the statute reached a substantial amount of constitutionally protected speech.

[¶ 10] Mr. Dougherty also argues that the statute is unconstitutional on its face because it may apply criminal sanctions to activities that, while socially unacceptable, are not criminal. For example, he claims that activities such as nose picking and public displays of affection could fall within the purview of the statute. We have stated that providing examples of instances where application of the statutory language may be vague or uncertain is insufficient to establish the unconstitutionality of the statute. Instead, the challenger must “ ‘demonstrate that the law is impermissibly vague in all of its applications.’ ” Teniente, ¶ 86, 169 P.3d at 536, quoting Alcalde v. State, 2003 WY 99, ¶ 15, 74 P.3d 1253, 1260-61 (Wyo.2003) (emphasis in original).

[¶ 11] In analyzing the constitutionality of § 6-4-403(b)(iii), we look to cases addressing similar statutory language. See Giles, ¶ 13, 96 P.3d at 1031. We consistently rejected facial challenges to the constitutionality of the indecent liberties statute, Wyo. Stat. Ann. § 14-3-105, ¹ which prohibited “knowingly taking immodest, immoral or indecent liberties with any child.” See, e.g., Ochoa v. State, 848 P.2d 1359, 1363 (Wyo.1993); Griego v. State, 761 P.2d 973, 975-76 (Wyo.1988); Sorenson v. State, 604 P.2d 1031, 1034-35 (Wyo.1979). We ruled that, although the definitions of the words immodest, immoral and indecent are somewhat uncertain, when read in context, the statute provides sufficient notice of what conduct is forbidden. Sorenson, 604 P.2d at 1035, quoted, with approval, the comments of the Colorado Supreme Court when considering the constitutionality of a similar statute:

“ * * * * when we take into consideration that the purpose of the act was to protect the morals of the child, that the Legislature employed apt words to describe the offense, because it is evident that the acts constituting the offense mean such as the common sense of society would regard as indecent and improper. People v. Hicks, 98 Mich. 86, 56 N.W. 1102. True, what shall be regarded as ‘immodest, immoral and indecent liberties' is not specified with particularity, but that is not necessary. The indelicacy of the subject forbids it. The common sense of the community, as well as the sense of decency, propriety, and morality which people generally entertain, is sufficient to apply the statute to each particular case, and point out unmistakably what particular conduct is rendered criminal by it. State v. Millard, 18 Vt. 574, 46 Am.Dec. 170. * * * * ” Dekelt v. People, 44 Colo. 525, 99 P. 330, 331-332 (1909)

[¶ 12] The definition of “indecent” approved in Sorenson, 604 P.2d at 1034 n. 3, states: 1. “ ‘not decent * * * * b: not conforming to generally accepted standards of morality: tending toward or being in fact something generally viewed as morally indelicate or improper or offensive: being or tending to be obscene.’ ” “Obscene” is often recognized to be synonymous to “indecent,” i.e., “not conforming to generally accepted standards of morality; tending toward or being in fact something generally viewed as morally indelicate or improper.” Webster's Third New Int'l Dictionary 1147 (2002). Black's Law Dictionary 1182 (9th ed.2009) defines “obscene” as “[e]xtremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate.” Thus, while the statutory terms “indecent” and “obscene” are somewhat imprecise, they are generally regarded as synonymous and “indecent” has been defined in prior cases, thereby providing the ordinary citizen with notice of the types of conduct that are prohibited. Griego, 761 P.2d at 976 (indicating that interpretation of statutory language in other cases provides notice to citizens of what conduct is prohibited).

[¶ 13] The context of the words provides a further level of specificity. The statute criminalizes indecent or obscene acts, thereby requiring a positive action by the defendant. It does not reach any constitutionally protected forms of expression. The mental element requires that the action be taken “knowingly,” or “ ‘with awareness, deliberateness, or intention’ as distinguished from inadvertently or involuntarily.” Butz v. State, 2007 WY 152, ¶ 20, 167 P.3d 650, 655 (Wyo.2007), quoting Webster's Third New Int'l Dictionary 1252 (2002), overruled on other grounds, Granzer v. State, 2008 WY 118, 193 P.3d 266 (Wyo.2008). See also, Williams, 553 U.S. at...