Keser v. State

• Citation: 706 P.2d 263
• Decision Date: 13 September 1985
• Docket Number: No. 84-198,84-198
• Parties: Randolph Eugene KESER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 263

706 P.2d 263

Randolph Eugene KESER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 84-198.

Supreme Court of Wyoming.

Sept. 13, 1985.

Leonard D. Munker, State Public Defender, Martin J. McClain, Appellate Counsel, and K. Leslie Delk, Asst. Public Defender, Wyoming Public Defender Program, for appellant; oral argument by Martin J. McClain.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Michael A. Blonigen, Asst. Atty. Gen., for appellee; oral argument by Michael A. Blonigen.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN, and CARDINE, JJ.

CARDINE, Justice.

This appeal is from a criminal conviction for child abuse. Appellant was sentenced to a term of not less than one nor more than two years in the Wyoming State Penitentiary; the sentence was suspended and appellant ordered to serve six months in the Natrona County jail with a subsequent supervised probation of one year. We affirm.

Appellant raises a single issue:

"Whether Section 6-2-503 W.S. 1977, June 1983 Replacement, as written by the legislature, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution."

In essence it is claimed that the statute is violative of due process in that (1) it is so vague that one cannot know what conduct constitutes child abuse, and (2) it does not contain a provision excepting from child abuse reasonable parental discipline. The State raises an additional issue of whether appellant has standing to raise the latter issue since he is a stepfather rather than a parent.

Appellant, Randy Keser, is the stepfather of fourteen-year-old Kevin Padilla. During December 1983, Kevin's mother was visiting relatives in Honduras. Appellant had made arrangements for Kevin to stay with neighbors while he was out of town on business. When appellant returned, he discovered that Kevin had taken the bus to school but had not arrived and that he had been absent from his classes. Appellant called the neighbors around 10:30 p.m. to see if Kevin had been found and discovered that they had picked him up around 8:30 p.m. When appellant sought to take Kevin home, he refused to leave. Appellant called the sheriff's office, then called Kevin, and advised him that the sheriff's office required that he return home with him. Appellant drove to the neighbors; Kevin entered the car, and they started traveling to appellant's house.

Kevin testified that while they were in the car his stepfather hit him three or four times with a metal spatula used to scrape ice off the window, backhanded him on the mouth, called him names, and threatened to kill him. After they arrived home, he was hit on his bare bottom and thighs with a leather belt fourteen or fifteen times as hard as appellant could hit, four or five times on the face, and at least once on the arm.

Appellant conceded that Kevin was disciplined. He testified, however, that Kevin was hit with the window scraper only twice and that it was not metal but a flat piece of plastic; that Kevin preferred the belt to having his privileges withdrawn, and that he only hit Kevin with the belt four to six times; that he was afraid Kevin would run away; that he suspected an involvement with drugs and sex; and that he was worried about Kevin's school work.

The morning after Kevin was "disciplined," he saw the school nurse who reported the incident to the Department of Public Assistance and Social Services. Kevin was examined by an emergency room physician who later testified to the existence of bruises on Kevin's face and posterior. Subsequently charges were brought against appellant for child abuse. At the beginning of the trial, appellant's attorney moved for a dismissal of the case contending that the child abuse statute with which he was charged was unconstitutional. At the end of the State's case, the court ruled the statute constitutional.

The statute in question, § 6-2-503, W.S.1977, reads as follows:

"Except under circumstances constituting a violation of W.S. 6-2-502, any adult who intentionally or in reckless disregard of the consequences causes physical injury or mental trauma to a child under the age of sixteen (16) years * * * is guilty of child abuse * * *." (Emphasis added.)

STANDING

The State contends that appellant, because of a lack of parental relationship, does not have standing to contest the constitutionality of the statute. The importance of the family is firmly entrenched in American law. Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Cleveland Board of Education v. Lafleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944). We have frequently extolled the importance of the family group and the joys and corresponding responsibilities involved in living with and bringing up children. See, DS v. Department of Public Assistance and Social Services, Wyo., 607 P.2d 911 (1980). A biological relationship is not the exclusive determination in finding an existence of family. Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977). This child's family consisted of his mother and stepfather. He was residing with them. The child had been left by his mother in the care and custody of appellant. In this circumstance, appellant has standing to raise the question of the constitutionality of the statute. See, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Quilloin v. Walcott, supra. The State further contends that appellant lacks standing because his conduct was outside the scope of parental discipline. "A party has standing to challenge the constitutionality of a statute only so far as it has an adverse impact on his own rights." County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). See also, Armijo v. State, Wyo., 678 P.2d 864, 868 (1984). Although we abhor cruelty to children, we do not find appellant's version of the incident to be so totally outside the ambit of discipline as to foreclose his right to raise these questions.

VOID FOR VAGUENESS

The applicable constitutional standards are not disputed by the parties.

"The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.

"On the other hand, if the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague even though marginal cases could be put where doubts might arise. [Citations.] And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction." United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). See also, Armijo v. State, supra, and Dover v. State, Wyo., 664 P.2d 536 (1983).

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. Part of the rationale for this rule is that vagueness encourages arbitrary and erratic arrests and convictions. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Wyoming has followed the constitutional guideline that a criminal statute violates an essential principle of due process if

"[m]en must necessarily guess at its meaning and differ as to its application." Sanchez v. State, Wyo., 567 P.2d 270, 274 (1977). See also, State v. Laude, Wyo., 654 P.2d 1223, 1228 (1982).

We have previously defined the principles of due process.

"In approaching a problem involving a decision which is concerned with whether a statute is constitutional or not, we do so with certain well-established rules in mind. The law in this regard was summarized in State v. Stern, Wyo., 526 P.2d 344, 346-347, when we said that in determining the constitutionality of a statute,

" ' * * * the plain, ordinary, and usual meaning of words used in a statute controls in the absence of clear statutory provisions to the contrary, [citation]; that where there is plain, unambiguous language used in a statute there is no room for construction, and a court may not properly look for and impose another meaning, [citation]; that where legislative intent is discernible a court should give effect to that intent, [citation]; that every law must be presumed to be constitutional, with all reasonable doubt resolved in its favor, [citation]; and that while generally speaking penal statutes are to be strictly construed, they need not be given overnarrow meaning in disregard of the obvious purpose of the legislative body, [citation].'

"Since no other states have statutory provisions similar to ours, we must determine the constitutionality of this section on the basis of the general requirements of due process." (Footnote omitted.) Sanchez v. State, supra at 274 (1977).

Appellant contends that the phrases "physical injury" and "mental trauma" contained in the child abuse statute are vague and not defined in the statute. We have not hesitated to declare child protection statutes unconstitutional because the language was vague and indefinite. State v. Gallegos, Wyo., 384 P.2d 967 (1963). A statute, however, is not considered vague to the extent of being unconstitutional merely because a reviewing court believes the statute could have been drafted with greater precision. ¹ Sorenson v. State, Wyo., 604 P.2d 1031 (1979). "[W]ords of common usage should be given their usual, ordinary and natural meaning, or signification, according to approved...