People v. Lawhorn

• Decision Date: 15 June 2017
• Docket Number: No. 330878,330878
• Citation: 907 N.W.2d 832,320 Mich.App. 194
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Anita Diane LAWHORN, Defendant–Appellant.
• Court: Court of Appeal of Michigan — District of US

320 Mich.App. 194

907 N.W.2d 832

PEOPLE of the State of Michigan, Plaintiff–Appellee,

v.Anita Diane LAWHORN, Defendant–Appellant.

No. 330878

Court of Appeals of Michigan.

Submitted April 12, 2017, at Grand Rapids

June 15, 2017, 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Kimberly M. Manns, Assistant Prosecuting Attorney, for the people.

Gower Reddick, PLC (by Jesse A. Nash), for defendant.

Before: Beckering, P.J., and Markey and Shapiro, JJ.

Per Curiam.

Defendant, Anita Diane Lawhorn, was convicted by a jury of third-degree child abuse, MCL 750.136b(5). Defendant was sentenced to 365 days in jail with credit for 36 days served and 60 months' probation. The trial court ordered defendant to immediately serve 150 days of her jail sentence with the remainder to be served at the end of probation or upon court order, whichever occurs first. Defendant now appeals by right.

Defendant argues that her conviction should be vacated because the third-degree child abuse statute, MCL 750.136b(5), is unconstitutionally vague as it does not provide fair notice of the prohibited conduct and because it is so indefinite that it gives unstructured and unlimited discretion to the trier of fact to arbitrarily determine whether an offense was committed. We disagree and so affirm.¹

MCL 750.136b defines the crime of third-degree child abuse as follows:

(5) A person is guilty of child abuse in the third degree if any of the following apply:

(a) The person knowingly or intentionally causes physical harm to a child.

(b) The person knowingly or intentionally commits an act that under the circumstances poses an unreasonable risk of harm or injury to a child, and the act results in physical harm to a child.

(6) Child abuse in the third degree is a felony punishable by imprisonment for not more than 2 years.

" ‘Child’ means a person who is less than 18 years of age and is not emancipated by operation of law ...." MCL 750.136b(1)(a). " ‘Person’ means a child's parent or guardian or any other person who cares for, has custody of, or has authority over a child regardless of the length of time that a child is cared for, in the custody of, or subject to the authority of that person." MCL 750.136b(1)(d). For purposes of MCL 750.136b, the term "physical harm" is defined as "any injury to a child's physical condition." MCL 750.136b(1)(e). In addition, MCL 750.136b(9) provides that "[t]his section does not prohibit a parent or guardian, or other person permitted by law or authorized by the parent or guardian, from taking steps to reasonably discipline a child, including the use of reasonable force."

"[A] statute is presumed to be constitutional and is so construed unless its unconstitutionality is clearly apparent." People v. Boomer , 250 Mich.App. 534, 538, 655 N.W.2d 255 (2002). "To determine whether a statute is unconstitutionally vague, this Court examines the entire text of the statute and gives the words of the statute their ordinary meanings." People v. Lockett , 295 Mich.App. 165, 174, 814 N.W.2d 295 (2012). A court must also consider any judicial constructions of the statute when determining if it is unconstitutionally vague. Boomer , 250 Mich.App. at 539, 655 N.W.2d 255.

"The void for vagueness doctrine is derived from the constitutional guarantee that the state may not deprive a person of life, liberty, or property, without due process of law. U.S. Const., Am. XIV ; Const. 1963, art. 1, § 17." People v. Roberts , 292 Mich.App. 492, 497, 808 N.W.2d 290 (2011) (quotation marks and citation omitted). As explained by the United States Supreme Court in Grayned v. City of Rockford, 408 U.S. 104, 108–109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) :

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to " ‘steer far wider of the unlawful zone’ ... than if the boundaries of the forbidden areas were clearly marked." [Citations omitted, alterations and omission in original.]

Following from these principles, we have stated:

A statute may be challenged for vagueness on three grounds: (1) it is overbroad and impinges on First Amendment freedoms; (2) it does not provide fair notice of the conduct proscribed; or (3) it is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed. [ Roberts , 292 Mich.App. at 497, 808 N.W.2d 290 (quotation marks and citation omitted).]

Because defendant does not argue that the third-degree child abuse statute is overly broad or that it impinges on First Amendment rights, we need only address the issues of fair notice and indefiniteness.

We begin by noting that "[t]he party challenging the constitutionality of a statute has the burden of proving the law's invalidity." People v. Bosca , 310 Mich.App. 1, 71, 871 N.W.2d 307 (2015). A vagueness challenge to a statute not based on First Amendment grounds must be reviewed on the basis of the particular facts of the case at issue. People v. Nichols , 262 Mich.App. 408, 410, 686 N.W.2d 502 (2004). Therefore, a defendant may not assert that a statute is overbroad and reaches innocent conduct if the defendant's conduct clearly falls within the language of the statute. See People v. Lynch , 410 Mich. 343, 352, 301 N.W.2d 796 (1981). In other words, "[a] defendant has standing to raise a vagueness challenge only if the statute is vague as applied to his conduct." People v. Al–Saiegh , 244 Mich.App. 391, 397 n. 5, 625 N.W.2d 419 (2001). Further, even if "a statute may be susceptible to impermissible interpretations, reversal is not required where the statute can be narrowly construed so as to render it sufficiently definite to avoid vagueness and where the defendant's conduct falls within that prescribed by the properly construed statute." Id ."To give fair notice, a statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited or required." People v. Noble , 238 Mich.App. 647, 652, 608 N.W.2d 123 (1999) (citation omitted). "A statute cannot use terms that require persons of ordinary intelligence to speculate regarding its meaning and differ about its application."

People v. Sands , 261 Mich.App. 158, 161, 680 N.W.2d 500 (2004). "For a statute to be sufficiently definite, its meaning must be fairly ascertainable by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words." Id . To survive constitutional scrutiny, the words used in a statute are not required to have a single meaning, Dep't of State Compliance & Rules Div. v. Mich. Ed. Ass'n–NEA , 251 Mich.App. 110, 120, 650 N.W.2d 120 (2002), and a statute need not define an offense with " ‘mathematical certainty,’ " Grievance Administrator v. Fieger , 476 Mich. 231, 255, 719 N.W.2d 123 (2006) (citation omitted).

In this case, defendant's vagueness challenge is directed solely at the statutory definition of "physical harm" as "any injury to a child's physical condition." MCL 750.136b(1)(e). We have previously rejected the argument that the definition of physical harm in MCL 750.136b is unconstitutionally vague for purposes of fourth-degree child abuse. People v. Gregg , 206 Mich.App. 208, 210–211, 520 N.W.2d 690 (1994). We held that "the statute clearly provides fair notice to persons of ordinary intelligence of the conduct proscribed, namely, an omission or reckless act that causes any injury to a child's physical condition." Id . at 211, 520 N.W.2d 690. Fourth-degree child abuse is also defined in MCL 750.136b. See MCL 750.136b(7). The same definition of "physical harm" applies to both third-degree and fourth-degree child abuse although third-degree child abuse requires a knowing or intentional act that causes physical harm to the child rather than an omission or reckless act that causes physical harm. See MCL 750.136b(1)(e), (5), and (7). Furthermore, a person of ordinary intelligence need not speculate about the meaning of "any injury to a child's physical condition" to understand the nature of the physical harm that must not be inflicted on a child. Anyone may consult a dictionary, and courts themselves often do so. Sands , 261 Mich.App. at 161, 680 N.W.2d 500. Merriam–Webster's Collegiate Dictionary (11th ed.) defines "injury" as "hurt, damage, or loss sustained." Relevant to the statute at issue, the term "physical" can mean "of or relating to the body," and "condition" may mean "a state of being." Id . Therefore, a person of ordinary intelligence would clearly understand that the third-degree child abuse statute prohibits a person from knowingly or intentionally causing harm or damage to the state of a child's body or knowingly or intentionally committing an act that poses an unreasonable risk of harm or injury to a child and results in harm or damage to the state of a child's body.

Additionally, we held in Gregg that the provision in MCL 750.136b providing that a parent or guardian shall not be prohibited "from taking steps...