Giles v. State

• Decision Date: 02 September 2004
• Docket Number: No. 02-63.,02-63.
• Citation: 96 P.3d 1027,2004 WY 101
• Parties: Steven J. GILES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

96 P.3d 1027

2004 WY 101

Steven J. GILES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 02-63.

Supreme Court of Wyoming.

September 2, 2004.

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel.

Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] After trial, a jury convicted appellant Steven J. Giles (Giles) of immodest, immoral, or indecent liberties with a child in violation of Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2003).¹ Giles challenges the constitutionality of that statute. After careful study, we reject Giles' challenges. Nevertheless, because the jury was not adequately instructed, we reverse and remand.

ISSUES

[¶ 2] Giles initially set forth the issues on appeal as:

I. Whether there was insufficient evidence to convict appellant, given the manner in which the jury was instructed[.]

II. Whether the trial court erred in refusing appellant's requested instructions concerning consent and "totality of the circumstances"[.]

After this court requested additional briefing to address constitutional issues concerning § 14-3-105, Giles supplemented the issues on appeal to include:

I. Is W.S. § 14-3-105 unconstitutional as it is facially vague?

I. II. Is W.S. § 14-3-105 unconstitutional as applied in appellant's case?

FACTS

[¶ 3] Early in the morning of April 3, 2001, a 13-year-old girlfriend of MB (the subject minor in this case) rented the bridal suite at the Clarion Inn in Gillette, Wyoming. Giles, along with several other friends, accompanied the girl to the motel. April 3 was a school day and, just before school was about to begin, Giles and others left the motel and picked up MB at the bus stop where she waited to board the school bus to junior high school.

[¶ 4] Arriving back at the motel, MB and other members of the group smoked marijuana and used methamphetamine. After a time, Giles and MB retired to a bedroom in the suite. MB was 14 years of age at the time, having been born March 19, 1987; Giles had just turned 18 days earlier, having been born on March 29, 1983. MB considered Giles her boyfriend because they had been seeing each other since October of 2000 and had had sexual intercourse on one previous occasion. On this day, Giles and MB had sexual intercourse twice. While still in the bedroom, a phone call came up to the room from a member of the motel staff warning the group that the police were there. Giles and MB hurriedly got dressed and attempted to leave the room. However, the police arrived before this could be accomplished and detained Giles, MB, and other members of the group. Upon questioning by the police, Giles admitted using marijuana and methamphetamine at the motel and admitted having sexual intercourse with MB on two occasions in the bedroom of the suite.

[¶ 5] At trial, MB testified that during her first uncharged sexual encounter with Giles, the group smoked marijuana, she kissed Giles, and then had sex with him. This activity was not at the urging of Giles, and there was no discussion of their respective ages. MB further testified that between this first encounter and the incident at issue in this case, Giles did not bring up the subject of having intercourse with her again, nor did they have sexual intercourse during this time frame. In fact, MB testified that she did not think Giles was interested in having sex with her. MB also admitted that she had sexual intercourse with another partner, prior to her first encounter with Giles. In addition, MB testified that she did not feel Giles was a lot older than she and that she felt she was more mature than Giles. MB further testified to what transpired at the Clarion Inn on April 3, 2001. These facts were not contested at trial. Rather, Giles' defense counsel admitted that the acts of sexual intercourse had taken place, but argued that these actions were not "immodest," "immoral," or "indecent" liberties. Giles did not testify.

[¶ 6] At the jury instruction conference, Giles' attorney objected to two jury instructions submitted by the State. The first instruction offered definitions to the jury concerning the words "immoral," "immodest," and "indecent," while the second instruction informed the jury that consent was not a defense to the charge when the victim is less than sixteen years of age. The district court accepted these instructions, and eventually they were given to the jury.

[¶ 7] Defense counsel offered jury instructions B, C, and E. These instructions were based on Pierson v. State, 956 P.2d 1119 (Wyo.1998), and sought to introduce consent as an issue, despite MB's age, and told the jury to consider the totality of circumstances in deciding whether Giles' conduct amounted to "immoral," "immodest," and "indecent" liberties with a child. The court refused these instructions.

[¶ 8] During jury deliberations, the jury submitted two questions to the district court. The initial question asked whether a person under sixteen years of age could consent to sexual intercourse. The second question asked, in effect, whether the jury must find that Giles' actions were immodest, immoral, and indecent. In responding to the jury, the district court advised the jury to refer to particular jury instructions already given and told them that the terms "immodest, immoral, or indecent liberties" were in the disjunctive, representing a choice among alternative things. Fifty-eight minutes later, the jury returned a guilty verdict.

[¶ 9] This case was initially assigned to the expedited docket and considered upon the briefs. Subsequently this court advised the parties that it desired supplemental briefing and oral argument on the constitutionality of Wyo. Stat. Ann. § 14-3-105(a).

STANDARD OF REVIEW

[¶ 10] We review constitutional issues de novo. Joyner v. State, 2002 WY 174, ¶ 7, 58 P.3d 331, ¶ 7 (Wyo.2002) (citing Taylor v. State, 7 P.3d 15, 19 (Wyo.2000)). See also Pope v. State, 2002 WY 9, ¶ 14, 38 P.3d 1069, ¶ 14 (Wyo.2002). In Browning v. State, 2001 WY 93, ¶ 12, 32 P.3d 1061, ¶ 12 (Wyo. 2001); Saiz v. State, 2001 WY 76, ¶ 10, 30 P.3d 21, ¶ 10 (Wyo.2001); Campbell v. State, 999 P.2d 649, 657 (Wyo.2000); Scadden v. State, 732 P.2d 1036, 1041-42 (Wyo.1987); Keser v. State, 706 P.2d 263, 266 (Wyo.1985); Sorenson v. State, 604 P.2d 1031, 1033 (Wyo. 1979); and Sanchez v. State, 567 P.2d 270, 274 (Wyo.1977), we also recognized that there is a strong presumption in favor of the constitutionality of a statute, with all doubt resolved in its favor.

[¶ 11] However, in Hobbs v. State, 757 P.2d 1008, 1011 (Wyo.1988) (quoting Britt v. State, 752 P.2d 426, 428 (Wyo.1988)), we set forth:

"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, `[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))." (Citation omitted.)

See also Shunn v. State, Wyo., 742 P.2d 775 (1987). The requirement of fair notice is a due process concept. Armijo v. State, [678 P.2d 864 (1984)], supra; Dover v. State, Wyo., 664 P.2d 536 (1983).

In accord see Caton v. State, 709 P.2d 1260, 1270-71 (Wyo.1985) and Carfield v. State, 649 P.2d 865, 870 (Wyo.1982).

[¶ 12] Nevertheless, we pointed out in Sorenson v. State, at 1033:

[T]his prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for "(i)n most English words and phrases there lurk uncertainties." Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. Cf. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913); United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). All the Due Process Clause requires is that the law give s efficient warning that men may conduct themselves so as to avoid that which is forbidden. (Emphasis supplied and footnote omitted.) Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975).

and

This Court ... has consistently held that lack of precision is not itself offensive to the requirements of due process. "... [T]he Constitution does not require impossible standards"; all that is required is that the language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices ..." United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. (Emphasis supplied.) Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957).

[¶ 13] We have also consistently held that "when evaluating a statute to determine whether it provides sufficient notice, we must again consider not only the statutory language but also any prior court decisions which have...