Rabuck v. State
| Decision Date | 10 March 2006 |
| Docket Number | No. 04-194.,04-194. |
| Citation | 129 P.3d 861,2006 WY 25 |
| Parties | Donald Herbert RABUCK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel.
Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Eric A. Johnson, Director, PAP.
Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.
[¶ 1] Donald Rabuck pled guilty to two counts of taking immodest, immoral, or indecent liberties with a minor, reserving his right to appeal the district court's denial of his motion to dismiss the charges. Mr. Rabuck asserts that the indecent liberties statute is unconstitutionally vague as applied to him. We affirm.
[¶ 2] Is the indecent liberties statute, Wyo. Stat. Ann. § 14-3-105(a) (LexisNexis 2003), unconstitutionally vague as applied to Mr. Rabuck?
[¶ 3] Mr. Rabuck was charged with two counts of violating Wyo. Stat. Ann. § 14-3-105(a) (LexisNexis 2003)1, for taking immodest, immoral, or indecent liberties with two minors, JW and AL. Following a preliminary hearing, he was bound over to the district court. Prior to trial, Mr. Rabuck filed a motion to dismiss the charges, claiming that there was insufficient evidence to support them, or alternatively, that the indecent liberties statute was unconstitutional. The State resisted the motion and the district court held a hearing. At the hearing, counsel for both parties stipulated to a factual record consisting of the affidavit of probable cause and two videotapes submitted as exhibits. The stipulated record reveals the following facts.
[¶ 4] In late 2003, seventeen-year-old JW was living with her mother and two younger sisters as tenants in Mr. Rabuck's home in Gillette. AL, a seventeen-year-old friend of JW, lived there as well. JW and AL shared a bedroom. On December 1, 2003, JW was hanging up clothes when she noticed a red light in the closet. She found a small wireless video camera on the closet's top shelf. There were no doors on the closet, and the camera was aimed into the bedroom. From that angle, both of the girls' beds were visible. There was black tape on the camera partially covering the red light.
[¶ 5] Later that evening, JW, AL, and JW's mother took the video camera to the Gillette police station and explained the circumstances of the discovery to Officer Lawrence. Additionally, AL described statements which Mr. Rabuck had made to her a few days prior which she considered strange. According to AL, Mr. Rabuck had asked about her sex life and if her boyfriend was keeping her sexually satisfied. Mr. Rabuck told AL that he knew couples who were very open sexually and asked if AL was as well. He asked AL when she would turn eighteen and told her he believed he could keep her sexually satisfied.
[¶ 6] Officer Lawrence contacted Detective Jim Hloucal regarding the incident. On December 2, 2003, Detective Hloucal went to Mr. Rabuck's home and received permission from JW's mother to view the closet where the video camera had been found. He confirmed that the camera placement provided a view of the girls' beds. Later that day Detective Hloucal contacted Mr. Rabuck, who agreed to come to the police station. While at the station, Mr. Rabuck consented to an interview with Detective Hloucal. Mr. Rabuck admitted purchasing the video equipment and placing the camera in the bedroom shared by JW and AL. He stated that he had placed the camera in the girls' bedroom in early November 2003. He admitted "the thought had crossed his mind" that placing the camera in the room would allow him to see the two girls "without their clothes on." He also admitted knowing that both girls were seventeen. Mr. Rabuck stated that he had plugged the receiver into the VCR he had in his bedroom, but denied that he had made any recordings. He denied viewing any images from the camera and claimed that the system did not work.
[¶ 7] Mr. Rabuck also described his attempt to dispose of the receiver and related paperwork at his place of employment after he realized that the camera had been discovered. According to Mr. Rabuck, he disposed of the equipment because he was concerned about how it would "look having placed a video camera in the girls' bedroom." When asked if he had conversations with the girls of a sexual nature, Mr. Rabuck stated that he had asked AL if she would be interested in an older or more mature man.
[¶ 8] On December 3, 2003, Detective Hloucal obtained a search warrant for Mr. Rabuck's residence and his vehicle. During the search of the home, a box for a wireless video camera and receiver were found under Mr. Rabuck's bed. A shipping invoice dated October 24, 2003, showing the purchase of wireless video equipment was also found.
[¶ 9] On December 4, 2003, Detective Hloucal was contacted by Mr. Rabuck's employer and was advised that a supervisor had retrieved four VHS tapes from a trash receptacle after observing Mr. Rabuck dispose of them the previous afternoon. The supervisor showed Detective Hloucal the trash barrel where the tapes had been found. His subsequent search of the trash container resulted in discovery of the video receiver.
[¶ 10] On December 5, 2003, Detective Hloucal viewed the tapes. Two of the tapes revealed images of AL and JW in their bedroom. One of the girls was captured completely nude, while other images showed one or both girls partially clothed, getting dressed and undressed.
[¶ 11] After reviewing the evidence, the district court denied the motion to dismiss. In its decision letter, the district court found that "the trier of fact could decide that the nonconsensual filming of minors in a state of undress falls within the coverage of W.S. § 14-3-105(a)." The district court also determined that the statute was not unconstitutionally applied to Mr. Rabuck.
[¶ 12] Mr. Rabuck subsequently entered a conditional plea of guilty to both counts, reserving his right to appeal the district court's adverse determination of his pretrial motion to dismiss.2 The district court sentenced Mr. Rabuck to two concurrent sentences of two to five years in the penitentiary and imposed a fine of $1000 for each count. This appeal followed.
[¶ 13] Mr. Rabuck claims that the indecent liberties statute is unconstitutional as applied to him. The statute at issue is Wyo. Stat. Ann. § 14-3-105(a) which provides, in pertinent part: ". . . any person knowingly taking immodest, immoral or indecent liberties with any child . . . is guilty of a felony." A child, as defined by the statute, is "a person under the age of eighteen (18) years." Wyo. Stat. Ann. § 14-3-105(c) (LexisNexis 2003). We review Mr. Rabuck's constitutional challenge de novo. Giles v. State, 2004 WY 101, ¶ 10, 96 P.3d 1027, 1030 (Wyo. 2004). In conducting such review, we accept as true the facts evident from the stipulated record, affording the State every favorable inference that may be drawn therefrom.3
[¶ 14] Under the constitutions of Wyoming and the United States, our legislature may not promulgate vague or uncertain statutes. Moore v. State, 912 P.2d 1113, 1114 (Wyo.1996). Consistent with principles of due process, 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." Griego v. State, 761 P.2d 973, 975 (Wyo.1988) (quoting Kolender v. Lawson, 461 U.S. 352, [357], 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. Griego, 761 P.2d at 975.
[¶ 15] It is well settled that the indecent liberties statute is not facially unconstitutional. "On numerous occasions this Court has reviewed cases challenging the indecent liberties statute based on void-for-vagueness grounds, and each time the statute has withstood those challenges." Moe v. State, 2005 WY 58, ¶ 10, 110 P.3d 1206, 1210 (Wyo.2005). See also Giles, ¶ 19; Ochoa v. State, 848 P.2d 1359, 1363 (Wyo.1993); Griego, 761 P.2d at 976; Schmidt v. State, 2001 WY 73, ¶ 28, 29 P.3d 76, 85 (Wyo.2001); Misenheimer v. State, 2001 WY 65, ¶ 15, 27 P.3d 273, 281 (Wyo.2001); Pierson v. State, 956 P.2d 1119, 1123-24 (Wyo.1998); Moore, 912 P.2d at 1116; Lovato v. State, 901 P.2d 408, 412 (Wyo.1995); Britt v. State, 752 P.2d 426, 428 (Wyo.1988); and Sorenson v. State, 604 P.2d 1031, 1034-35 (Wyo.1979). In light of the foregoing authority, Mr. Rabuck, understandably, asserts only an "as applied" constitutional challenge.
[¶ 16] When "a statute is challenged on an `as applied' basis, the court examines the statute solely in light of the complainant's specific conduct." Giles, ¶ 15, fn.2. In determining whether a statute is unconstitutionally vague as applied to a defendant's conduct, "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." Lovato, 901 P.2d at 412 (citing Griego, 761 P.2d at 976). Mr. Rabuck does not allege discriminatory enforcement. He does, however, contend that the statute fails to provide him sufficient notice that his conduct would violate the terms of the statute. In evaluating the sufficiency of the notice, we must consider: (1) the statutory language and any prior court decisions which have placed a limiting construction on the statute or have applied it to specific conduct; and (2) whether the statute has been previously applied to conduct identical to that of appellant. Giles, ¶ 23 (citing Griego, 761 P.2d at 976).
[¶ 17] Mr. Rabuck does not contend that any of the specific terms in the statute are ...
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