Griego v. State

• Decision Date: 15 September 1988
• Docket Number: No. 87-85,87-85
• Citation: 761 P.2d 973
• Parties: Henry R. GRIEGO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 973

761 P.2d 973

Henry R. GRIEGO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 87-85.

Supreme Court of Wyoming.

Sept. 15, 1988.

Daniel E. White of Vines, Gusea & White, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Paul S. Rehurek, Asst. Atty. Gen., (argued), for appellee.

Before CARDINE, C.J., THOMAS and URBIGKIT, JJ., and BROWN, J. Ret. ^* , and JOFFE, District Judge, Ret.

CARDINE, Chief Justice.

Appellant was convicted of taking immodest, immoral, or indecent liberties with a child, § 14-3-105, W.S.1977, and was sentenced to a six-month term in the Laramie county jail. He presents the following issues on appeal: (1) Whether the court erred in denying his motion to dismiss by (a) failing to find that § 14-3-105 is unconstitutionally vague, (b) failing to rule that § 14-3-105 has been impliedly repealed by § 6-2-305, (c) failing to rule that appellant should have been charged under § 6-2-305 because it is a special statute which stands as an exception to § 14-3-105, which is a general statute, and (d) in finding that probable cause existed; (2) whether the court erred in admitting the testimony of Sandra Minnick, the State's expert witness; and (3) whether the court erred in refusing to instruct the jury on a lesser-included offense.

We affirm.

FACTS

On July 26, 1986, the fourteen-year-old victim was babysitting several children at the home of Ms. Nan Thiessen in rural Laramie County. Ms. Thiessen was planning to attend a show with several friends and members of her family who were staying at her home. Appellant was dating Ms. Thiessen at the time. He was at her home that evening. He had initially planned to attend the show with Ms. Thiessen and the others, but Ms. Thiessen had sold his ticket following an argument between them two weeks earlier.

Ms. Thiessen and her friends left the house at about 6:00 p.m. Appellant stayed behind. After the victim put the children to bed, she went downstairs where appellant was watching a movie on television. Appellant told her that the movie was getting boring and asked her if she had ever seen a "porno" before. She said she had seen about five seconds of one while flipping through the channels at a friend's house. Appellant then put on a video entitled "Hollywood Hot Tubs."

After appellant and the victim had watched the video for about fifteen to twenty minutes, she began to feel uncomfortable. She went upstairs and tried, unsuccessfully, to telephone a friend. She then returned downstairs and sat on the couch. Appellant asked her how old she was, and she told him she was fourteen. Then he asked if her sister's breasts were as big as the girl's on television. She told him that she did not think so. Appellant offered her a beer, and she declined. Appellant told her that she had a nice figure for her age. The victim then went upstairs and tried again to call her friend. She was again unsuccessful. She checked on the children and went back downstairs.

Appellant then told her that he had recently hurt his back and asked her to give him a back rub. She complied. While she was giving appellant a back rub, appellant told her that she had strong hands and a sexy voice. She began to feel uncomfortable and sat back on the couch. Appellant asked her if she wanted a back rub. She initially declined, but then appellant gently pulled her off the couch by her arm and began rubbing her back. The victim told appellant "that's enough" and started to get up, but appellant pushed her back onto the floor. At this point the victim was on her back. Appellant pulled up her shirt and bra and told her, "I know something that feels real good." Appellant began fondling her breasts and sucking on them. He also engaged in an activity which the victim later described as "dry humping." She told him, "that's enough," got up, and pulled her shirt down. She walked upstairs and tried once again to reach her friend. Once again she did not succeed.

At this point Ms. Thiessen came home to drop off a friend who had hurt her ankle. Ms. Thiessen paid the victim and asked if she wanted a ride home. The victim said she was waiting for someone to pick her up. Ms. Thiessen left again, but appellant did not. He went downstairs where the victim was sitting on the couch. Appellant then pulled her into a hallway and started kissing her and tried to put his hands under her shirt. He also started to pull her towards a bedroom. She said, "no," and walked away. Appellant told her not to tell anyone. She went upstairs and tried once again to call her friend. This time she succeeded, and her friend picked her up about fifteen minutes later.

That night, the victim told her friend what had happened. The next day the victim's parents were told of the incident, and they contacted the sheriff's department. Appellant was questioned by a sheriff's deputy on July 28, 1986, and he gave a written statement.

About one month later, a criminal complaint was filed against appellant. He filed a motion to dismiss in the county court, which was denied. The motion was renewed in the district court, where it was again denied. After a two-day trial, a jury found appellant guilty of taking indecent liberties with a child. He was sentenced to a six-month term in the county jail.

VAGUENESS

Appellant contends that the indecent liberties statute, § 14-3-105, is unconstitutionally vague. We addressed a similar challenge in Sorenson v. State, Wyo., 604 P.2d 1031 (1979), under facts similar to this case. We decline appellant's invitation to overrule Sorenson. The United States Supreme Court has said that a penal statute must

"define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).

A statute may be challenged for vagueness "on its face" or as applied to particular conduct. When a statute is challenged for vagueness on its face, the court examines the statute not only in light of the complainant's conduct, but also as it might be applied in other situations. See Schwartzmiller v. Gardner, 752 F.2d 1341 (9th Cir.1984). Facial review is not appropriate in all cases.

"[F]acial vagueness review is not common because ordinary canons of judicial restraint do not permit a party whose particular conduct is adequately described by a criminal statute to 'attack [the statute] because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit.' " (Emphasis omitted.) Id. at 1346 (quoting Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974)).

This principle is sometimes described in terms of standing. Parker v. Levy, supra 94 S.Ct. at 2561; State v. Hegge, 89 Wash.2d 584, 574 P.2d 386, 389 (1978).

The standing requirement is relaxed when a statute reaches "a substantial amount of constitutionally protected conduct." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); Kolender v. Lawson, supra 103 S.Ct. at 1855. The requirement is also relaxed when a statute is shown to be vague " 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.' " Parker v. Levy, supra 94 S.Ct. at 2561 (quoting Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971)). See also Schwartzmiller v. Gardner, supra 752 F.2d 1341.

Appellant does not argue that the indecent liberties statute reaches any constitutionally protected conduct. Consequently, we will entertain a facial challenge only if the statute is one in which "no standard of conduct is specified at all." Parker v. Levy, supra 94 S.Ct. at 2561.

                We conclude that the indecent liberties statute does not fall within that category.  Instead it is one which "by [its] terms or as authoritatively construed [applies] without question to certain activities, but whose application to other behavior is uncertain."  (Emphasis added.)   Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974);   Parker v. Levy, supra 94 S.Ct. at 2561
                

The Wyoming indecent liberties statute has been construed to apply to certain types of specific conduct in several cases. McArtor v. State, Wyo., 699 P.2d 288 (1985); AuClair v. State, Wyo., 660 P.2d 1156 (1983); Ketcham v. State, Wyo., 618 P.2d 1356 (1980) (all three cases involved sexual intercourse); and Sorenson v. State, supra 604 P.2d 1031 (breast fondling). These decisions demonstrate that § 14-3-105 applies, without question, to certain activities. ¹ Consequently, the statute is "not so vague as to specify 'no standard of conduct at all' in any application." See Schwartzmiller, supra 752 F.2d at 1348. We will not entertain a facial challenge in this case.

We must next decide whether the statute is unconstitutionally vague as applied to appellant's conduct. In making this determination we must decide whether the statute provides sufficient notice to a person of ordinary intelligence that appellant's conduct was illegal and whether the facts of the case demonstrate arbitrary and discriminatory enforcement. 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 placed a limiting construction on the statute or have applied it to specific conduct. Ward v. Illinois, 431 U.S. 767, 97 S.Ct. 2085, 52 L.Ed.2d 738 (1977); Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973); Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). If the...