Luplow v. State
| Decision Date | 16 June 1995 |
| Docket Number | Nos. 94-88,94-92,s. 94-88 |
| Citation | 897 P.2d 463 |
| Parties | Timothy LUPLOW, Petitioner (Defendant), v. The STATE of Wyoming, Respondent (Plaintiff). Charles Gary JENNINGS, Appellant (Appellant/Respondent), v. Kathryn M. CURRIER, Appellee (Appellee/Petitioner). |
| Court | Wyoming Supreme Court |
Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Deborah Cornia, Appellate Counsel, Cheyenne, and Stephen K. Palmer of McKinney Law Offices, Rock Springs, for petitioner.
Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., D. Michael Pauling, Sr. Asst. Atty. Gen., Mary Beth Wolff, Sr. Asst. Atty. Gen., Cheyenne, for respondent.
Thomas A. Fasse of Miller & Fasse, P.C., Riverton, for appellant.
David B. Hooper of Hooper Law Offices, P.C., Riverton, for appellee.
Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.
These combined cases raise the constitutionality of the Wyoming criminal statute proscribing stalking, WYO.STAT. § 6-2-506 (Supp.1994), in two ways. Timothy Luplow (Luplow) was charged with misdemeanor stalking in the Sheridan County Court where the question of constitutionality of the statute was certified to the District Court for the Fourth Judicial District. That court certified the question of constitutionality to this court. In the Fremont County Court a protective order was entered against Charles Gary Jennings (Jennings) at the behest of Kathryn M. Currier (Currier). Jennings appealed to the District Court for the Ninth Judicial District, and that court certified the question of constitutionality of the criminal statute as well as the protective order statutes, WYO.STAT. §§ 7-3-506 to -511 (Supp.1994), to this court. The challenge to the statutes is that they are facially unconstitutional as vague and overbroad. We are satisfied the statutes can be construed as constitutional and, as properly applied, they do not infringe upon constitutional protections. We so hold in answering the certified questions.
In the Order Certifying Question to Supreme Court entered in the District Court for the Fourth Judicial District in and for Sheridan County, the certified question of law is:
Whether WYO.STAT. § 6-2-506 is unconstitutional in that the statute as written is vague and overbroad.
In case No. 94-88, Luplow filed a Brief of Petitioner, in which the issues are stated as:
I. Whether W.S. § 6-2-506 is unconstitutionally vague under the provisions of Articles I, VI and XX [sic] of the Wyoming Constitution and the First, Fifth and Fourteenth Amendments to the United States Constitution?
II. Whether W.S. § 6-2-506 is unconstitutionally overbroad under the provisions of Articles I, VI and XX [sic] of the Wyoming Constitution and the First, Fifth and Fourteenth Amendments to the United States Constitution?
In its Brief of Respondent, the State identifies the issue as:
Whether W.S. § 6-2-506 is unconstitutionally vague or overbroad?
We initially address the question in the context of the criminal statute. It provides:
(a) As used in this section:
(i) "Course of conduct" means a pattern of conduct composed of a series of acts over any period of time evidencing a continuity of purpose;
(ii) "Harass" means to engage in a course of conduct, including but not limited to verbal threats, written threats, vandalism or nonconsensual physical contact, directed at a specific person or the family of a specific person, which the defendant knew or should have known would cause a reasonable person to suffer substantial emotional distress, and which does in fact seriously alarm the person toward whom it is directed.
(b) Unless otherwise provided by law, a person commits the crime of stalking if, with intent to harass another person, the person engages in a course of conduct reasonably likely to harass that person, including but not limited to any combination of the following:
(i) Communicating, anonymously or otherwise, or causing a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses;
(ii) Following a person, other than within the residence of the defendant;
(iii) Placing a person under surveillance by remaining present outside his or her school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the defendant; or
(iv) Otherwise engaging in a course of conduct that harasses another person.
(c) This section does not apply to an otherwise lawful demonstration, assembly or picketing.
(d) Except as provided under subsection (e) of this section, stalking is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.
(e) A person convicted of stalking under subsection (b) of this section is guilty of felony stalking punishable by imprisonment for not more than ten (10) years, if:
(i) The act or acts leading to the conviction occurred within five (5) years of a prior conviction under this subsection, or under subsection (b) of this section, or under a substantially similar law of another jurisdiction;
(ii) The defendant caused serious bodily harm to the victim or another person in conjunction with committing the offense of stalking;
(iii) The defendant committed the offense of stalking in violation of any condition of probation, parole or bail; or
(iv) The defendant committed the offense of stalking in violation of a temporary or permanent order of protection issued pursuant to W.S. 7-3-508 or 7-3-509, or pursuant to a substantially similar law of another jurisdiction.
WYO.STAT. § 6-2-506 (Supp.1994).
In his brief, Luplow concedes the facts relating to the two counts charged of misdemeanor stalking. The victim in the first count was staying at the Holiday Inn in Sheridan. While she was there, the phone rang. She answered it, but no one replied on the other end. She hung up the phone and, minutes later, heard a knock at the door. When she went to the door, she found no one there and, a short time later, there was another knock at the door. Again, she was unable to find anyone there. A short while later, another call was made to the victim, and she was asked to dinner by a male voice. She declined the invitation, and the caller then asked whether she would like to perform fellatio on him. The victim hung up the phone and hung up each time when the phone rang another two times. She then contacted the front desk about the incident. An employee of the hotel, who had observed a man using the house phone immediately prior to the call from the victim, followed the man outside and noted he left in a vehicle which was registered to Luplow.
Nine days later, the victim of the conduct charged in the second count was also a guest at the Holiday Inn in Sheridan. When she was returning to her room, she observed a man following her. The man said something that she did not understand, and she entered her room without looking at him. About five minutes later, there was a knock on her door and, when she looked through the peephole, she saw the man she had earlier seen in the hall. She asked what he wanted, and he said he wanted to enter the room and talk with her. A few minutes later, her phone rang, and a male voice asked her why she would not open the door and talk to him. The caller then requested her to join him in the hot tub for sex. She hung up the phone, but received another call moments later from the same individual. That person told her he had been watching her all evening and, again, requested her to join him in the hot tub. She identified Luplow as the individual she had seen that evening from a photo lineup.
After he was charged with the two counts of misdemeanor stalking, Luplow entered pleas of not guilty. Prior to trial, the county court denied his motion to dismiss the charges upon the ground that the stalking statute was unconstitutional. The county court did, however, certify the question of constitutionality to the district court, and that court, in turn, presented the certified question to this court. We agreed to answer the certified question and consolidated the criminal case with case No. 94-92, Jennings v. Currier, an appeal from a stalking protection order entered in a county court.
We begin our analysis of the constitutionality of the stalking statute by recalling the jurisprudential rule that "every law must be presumed to be constitutional, with all doubt resolved in its favor." Keser v. State, 706 P.2d 263, 266 (Wyo.1985) (quoting Sanchez v. State, 567 P.2d 270, 274 (Wyo.1977)). More recent cases follow this rule. Wyoming Coalition v. Wyoming Game and Fish Comm'n, 875 P.2d 729 (Wyo.1994); Johnson v. State Hearing Examiner's Office, 838 P.2d 158 (Wyo.1992); Righter v. State, 752 P.2d 416 (Wyo.1988). The burden then assigned to one who challenges a statute for facial unconstitutionality asserting vagueness is to demonstrate that (1) the statute reaches a substantial amount of constitutionally protected conduct; or (2) the statute specifies no standard of conduct at all. McCone v. State, 866 P.2d 740, 745 (Wyo.1993); Ochoa v. State, 848 P.2d 1359, 1363 (Wyo.1993); Griego v. State, 761 P.2d 973, 975 (Wyo.1988). We have said the ultimate test under a vagueness challenge is whether a person of ordinary intelligence could read the statute and comprehend what conduct is prohibited. Sanchez.
In McCone, we summarized our analysis with respect to vagueness, saying:
When we review a statute for vagueness, we begin by determining whether the statute may be challenged "facially" or only as it applies to the challenger's conduct. Ochoa v. State, 848 P.2d 1359, 1363 (Wyo.1993) (citing Griego v. State, 761 P.2d 973, 975 (Wyo.1988)). We review a statute "facially," i.e., we examine the statute in light of how it might be applied to situations other than the challenger's, only if the statute "reaches a substantial amount of...
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