Misenheimer v. State, 00-89.

• Decision Date: 20 July 2001
• Docket Number: No. 00-89.,00-89.
• Citation: 27 P.3d 273,2001 WY 65
• Parties: Wesley MISENHEIMER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

27 P.3d 273

2001 WY 65

Wesley MISENHEIMER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-89.

Supreme Court of Wyoming.

July 20, 2001.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yoder.

Representing Appellees: Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker; Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Vicki Johnston, Student Intern. Argument by Ms. Johnston.

Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ., and DAN SPANGLER, D.J. (Ret.).

HILL, Justice.

[¶ 1] Wesley Misenheimer (Appellant) entered a conditional plea¹ of guilty to one count of taking immodest, immoral or indecent liberties with a child in violation of Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2001) (indecent liberties statute) subject to an appeal on his claims that § 14-3-105 is unconstitutional as applied and that the decision to charge denied him equal protection. We affirm.

ISSUES

[¶ 2] Appellant presents two issues for review:

Issue I

Is W.S. § 14-3-105 unconstitutionally vague with respect to its application to a minor accused of committing immoral acts with another minor, particularly when those acts are entirely voluntary?

Issue II

Have Appellant's Equal Protection rights been violated when the prosecutor elects to bring charges of violation of W.S. § 14-3-105 against only the male minor rather than against the female minor involved?

The State's statement of the issues is the same but uses slightly different language:

I. Is Wyo. Stat. § 14-3-105 unconstitutionally vague as applied in this case?

II. Was the seventeen-year-old male appellant denied equal protection of the law when he had sexual intercourse with a thirteen-year-old girl and was charged with violation of Wyo. Stat. § 14-3-105, even though the thirteen-year-old girl was not charged under the same statute?

FACTS

[¶ 3] The facts of this case are fairly simple. Appellant was seventeen years old when he engaged in consensual sexual intercourse with the thirteen-year-old victim. The victim's father discovered the nature of the relationship and reported it to the police. On at least one occasion, Appellant and a friend had supplied the victim with alcohol prior to both of them engaging in sexual activity with her. Appellant was charged with five counts of taking indecent liberties with a child in violation of § 14-3-105.² Appellant moved to dismiss the charges on two grounds. First, he argued that § 14-3-105 was unconstitutionally vague as applied to the facts. Appellant argued that a reasonably intelligent person of ordinary sensibility would not recognize § 14-3-105 to prohibit consensual sexual relations between minors. In essence, Appellant's position was that the statute did not give fair notice that the conduct he engaged in was prohibited. He also contended that the statute was arbitrarily and discriminatorily enforced since both parties were minors engaged in a consensual relationship and yet he was the only one criminally charged. In addition, that argument formed the basis for Appellant's second argument that by charging him, and not the minor female, his right to equal protection under the Fourteenth Amendment and the Wyoming Constitution was violated.

[¶ 4] The district court denied Appellant's motion to dismiss. The court concluded that there was "no reason that a reasonably intelligent 17 year old could not determine that sexual intercourse with a 13-year-old was `clearly conduct which is forbidden as immodest, "immoral or indecent liberties."'" (citing Britt v. State, 752 P.2d 426, 428 (Wyo.1988)). The district court denied the equal protection contention on the grounds that Appellant had failed to show that the prosecutor's discretionary decision to charge only him was arbitrarily based on a suspect classification.

[¶ 5] After the denial of his motion to dismiss, Appellant entered into a plea agreement. The State agreed to drop four of the charges of indecent liberties in exchange for a plea of guilty by Appellant to the remaining charge. The plea was conditional pursuant to W.R.Cr.P. 11(a)(2) with Appellant reserving the right to challenge on appeal the district court's denial of his motion to dismiss. That appeal is now before us.

STANDARD OF REVIEW

[¶ 6] A statute is unconstitutionally vague as applied to a particular defendant's actions if it "fails to give a person of ordinary sensibility fair notice that the contemplated conduct is forbidden," Britt, 752 P.2d at 428 (quoting Keser v. State, 706 P.2d 263, 266 (Wyo.1985)), and the facts of the case demonstrate arbitrary and discriminatory enforcement of the statute. Pierson v. State, 956 P.2d 1119, 1123 (Wyo.1998) (quoting Griego v. State, 761 P.2d 973, 975 (Wyo.1988) and Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)).

[¶ 7] Resolution of Appellant's vagueness claim involves the interpretation of statutory language. We analyze statutes in an endeavor to interpret them in accordance with the legislature's intent, beginning with an inquiry into the ordinary and obvious meaning of the words employed according to their arrangement and connection. Capshaw v. State, 10 P.3d 560, 564 (Wyo.2000) (quoting Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1042 (Wyo.1993) and Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)). "We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia so that no part will be inoperative or superfluous." Capshaw, 10 P.3d at 564 (citing Fall v. State, 963 P.2d 981, 983 (Wyo.1998)).

[¶ 8] In reviewing Appellant's equal protection challenge, we keep in mind that charging decisions rest within the discretion of the prosecuting attorney. Mares v. State, 939 P.2d 724, 731 (Wyo.1997). A defendant claiming a violation of equal protection must first demonstrate that the classification at issue "treats similarly situated persons unequally." Ellett v. State, 883 P.2d 940, 944 (Wyo.1994) (quoting Matter of ALJ, 836 P.2d 307, 313 (Wyo.1992)). If the defendant can make that demonstration, then we apply one of two levels of scrutiny to determine whether equal protection was violated.

That is, where a statute [or a governmental action] affects a fundamental interest or creates an inherently suspect classification, the court must strictly scrutinize that statute [or the governmental action] to determine if it is necessary to achieve a compelling state interest. However, if the statute [or the governmental action] only affects ordinary interests in the economic and social welfare area, the court need only determine that it is rationally related to a legitimate state objective.

Ellett, 883 P.2d at 944 (quoting White v. State, 784 P.2d 1313, 1315 (Wyo.1989)).

DISCUSSION

Vagueness

[¶ 9] Appellant presents a two-pronged attack on § 14-3-105 in support of his contention that the statute is vague as applied to the facts of his case. First, he argues that § 14-3-105 is vague as to the class of persons the legislature intended to include as offenders. Appellant notes that the purpose of § 14-3-105 is to protect the morals of children. Pierson, 956 P.2d 1119. He also notes that § 14-3-105 does not contain specific age elements, including minors, similar to that found in the third degree sexual assault statute, Wyo. Stat. Ann. § 6-2-304 (LexisNexis 2001), and that our case law has exclusively focused on the fact that adults may be convicted of taking indecent liberties with children. Id. See also, Moore v. State, 912 P.2d 1113 (Wyo.1996); Ochoa v. State, 848 P.2d 1359 (Wyo.1993); Scadden v. State, 732 P.2d 1036 (Wyo.1987); and McArtor v. State, 699 P.2d 288 (Wyo.1985). From those propositions, Appellant concludes that § 14-3-105 is intended to protect children from adults and not to prevent consensual sex between minors. In the second prong of his argument, Appellant contends that he could not have known that the conduct he engaged in was prohibited. In essence, Appellant argues that in the "moral climate" of today's society consensual sexual activity between minors is not an action "such as the common sense of society would regard as indecent and improper [that] a person of ordinary intelligence can weigh contemplated conduct against that prohibition." Pierson, 956 P.2d at 1123 (quoting Roberts v. State, 912 P.2d 1110, 1112 (Wyo.1996) and Sorenson v. State, 604 P.2d 1031, 1034-35 (Wyo.1979)).

[¶ 10] In order to resolve Appellant's issue, we begin by examining the statutory context established by the legislature for regulating sexual offenses. Appellant pleaded guilty to one count of taking immodest, immoral or indecent liberties with a child pursuant to § 14-3-105, which provides:

§ 14-3-105. Immoral or indecent acts; penalty.

(a) Except under circumstance constituting sexual assault in the first, second or third degree as defined by W.S. 6-2-302 through 6-2-304, any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony. Except as provided by subsection (b) of this section, a person convicted under this section shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both.

(b) An actor convicted under subsection (a) of this section shall be punished by life imprisonment without parole if:

(i) The circumstances of the crime involve a victim who was under the age of sixteen (16) at the time of the offense and an actor

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