Richmond v. City of Corinth

• Decision Date: 07 February 2002
• Docket Number: No. 2000-KM-01581-SCT.,2000-KM-01581-SCT.
• Citation: 816 So.2d 373
• Parties: Jacquelyn RICHMOND v. CITY OF CORINTH.
• Court: Mississippi Supreme Court

816 So.2d 373

Jacquelyn RICHMOND v. CITY OF CORINTH.

No. 2000-KM-01581-SCT.

Supreme Court of Mississippi.

February 7, 2002.

Phil R. Hinton, Corinth, Attorney for Appellant.

Thomas L. Sweat, Jr., Corinth, Attorney for Appellee.

Before PITTMAN, C.J., EASLEY and GRAVES, JJ.

EASLEY, J., For The Court.

¶ 1. Jacquelyn Richmond (Richmond) was found guilty by the Corinth Municipal Court of indecent exposure in violation of Miss.Code Ann. § 97-29-31 (2000). By writ of certiorari, Richmond appealed to the Circuit Court of Alcorn County. The circuit court denied her requested relief. Following that decision, Richmond appealed to this Court arguing that § 97-29-31 is unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments to the United States Constitution and the Mississippi Constitution. We find that the statute is constitutional and not void for vagueness nor overbroad. Accordingly, we affirm.

FACTS

¶ 2. On April 7, 1994, Richmond was charged with indecent exposure pursuant to § 97-29-31 while at Wild Bill's Cabaret in Corinth, Mississippi. A hearing was conducted on June 17-18, 1994. The Corinth Municipal Court found Richmond guilty by order on June 23, 1994. Richmond was fined $250.00 and had 90 days' suspended jail time. Richmond appealed the municipal court decision to the Circuit Court of Alcorn County. That court dismissed the appeal on procedural grounds on October 31, 1994.

¶ 3. On December 22, 1994, Richmond filed a petition for writ of certiorari with the Circuit Court of Alcorn County. The City of Corinth (the City) filed a response on January 13, 1995. On January 27, 1995, the circuit court granted the writ of certiorari removing the case from the municipal court to the Circuit Court of Alcorn County. An amended writ was filed on September 4, 1997. The City filed a response on December 3, 1997. The Circuit Court of Alcorn County conducted a hearing. On July 19, 2000, the circuit court denied Richmond's requested relief. From this decision, Richmond appeals to this Court. The Attorney General of the State of Mississippi also filed an amicus curiae brief in support of the statute.

STATEMENT OF THE ISSUES

I. Whether § 97-29-31 of the Mississippi Code of 1972, Annotated, as amended is unconstitutional.

LEGAL ANALYSIS

STANDARD OF REVIEW

¶ 4. This Court in Jones v. State, 710 So.2d 870, 877 (Miss.1998), set out the standard for determining the constitutionality of a statute as follows:

A party challenging the constitutionality of a statute must prove his case by showing the unconstitutionality of the statute beyond a reasonable doubt. Vance v. Lincoln County Dep't of Pub. Welfare, 582 So.2d 414, 419 (Miss.1991). "This Court will strike down a statute on constitutional grounds only where it appears beyond all reasonable doubt that such statute violates the constitution." Wells v. Panola County Bd. of Educ., 645 So.2d 883, 888 (Miss.1994).We adhere here to the rule that one who assails a legislative enactment must overcome the strong presumption of validity and such assailant must prove his conclusion affirmatively, and clearly establish it beyond a reasonable doubt. All doubts must be resolved in favor of the validity of a statute. If possible, courts should construe statutes so as to render them constitutional rather than unconstitutional if the statute under attack does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity. Loden v. Mississippi Pub. Serv. Comm'n, 279 So.2d 636, 640 (Miss.1973) (citations omitted); see also Hoops, 681 So.2d at 536.

See also Corry v. State, 710 So.2d 853, 859 (Miss.1998)

; Nicholson ex rel. Gollott v. State, 672 So.2d 744, 750 (Miss.1996)(statutes have a presumption of validity overcome only by showing unconstitutionality beyond a reasonable doubt). This Court in Reining v. State, 606 So.2d 1098, 1103 (Miss.1992), provided guidance in cases involving criminal statutes as follows:

Although a statute imposing criminal penalties must be strictly construed in favor of the accused, it should not be so strict as to override common sense or statutory purpose. United States v. Brown, 333 U.S. 18, 25, 68 S.Ct. 376, 380, 92 L.Ed. 442, 448 (1948); see also State v. Burnham, 546 So.2d 690, 692 (Miss.1989)

. Strict construction means reasonable construction. State v. Martin, 495 So.2d 501, 502 (Miss.1986). This Court has held that the test concerning statutory construction is whether a person of ordinary intelligence would, by reading the statute, receive fair notice of that which is required or forbidden. Burnham, 546 So.2d at 692; Roberson v. State, 501 So.2d 398, 400 (Miss.1987); Cassibry v. State, 404 So.2d 1360, 1368 (Miss.1981).

¶ 5. This Court has viewed the constitutionality of a statute in the context of the First Amendment protection of free speech and expression. In ABC Interstate Theatres, Inc. v. State, 325 So.2d 123 (Miss.1976), this Court addressed the constitutionality of Miss.Code Ann. § 97-29-33. That statute was challenged in regard to the motion picture "The Exorcist." Id. The Court reviewed the constitutionality of the language which prohibited showing "any obscene, indecent, or immoral picture." In ABC, the Court relied upon Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and cited the following:

`... State statutes designed to regulate obscene material must be carefully limited.... As a result, we now confine the permissible scope of such regulations to works which (would) depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. (The stated) offense must also be limited to works which, taken as a whole, appeal to prurient interest in sex, which portray sexual conduct in a patently offensive way, and which taken as a whole, do not have serious literary, artistic, political, or scientific value. 413 U.S. at 23-24, 93 S.Ct. at 2614-2615, 37 L.Ed.2d at 430-431.'

¶ 6. The standard for the trier of fact was stated:

`The basic guidelines for the trier of fact must be: (a) whether `the average person, applying contemporary ocmmunity [sic] standards' would find that the work, taken as a whole, appeals to the prurient interest ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.... 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.'

¶ 7. The area of regulation remaining to the states was expressed through the following examples:

"We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection.... 413 U.S. at 25-26, 93 S.Ct. at 2615-2616, 37 L.Ed.2d at 431-432."

ABC, 325 So.2d at 125-26. This Court in ABC determined § 97-29-33 to be unconstitutional and declined to authoritatively construe the statute in light of Miller. Id. at 126.

¶ 8. Significantly, Miller dealt with a written communication of mailed, unsolicited material and not conduct. As to the issue of conduct, the Miller Court acknowledged that "[a]lthough we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior." Miller v. California, 413 U.S. at 26 n. 8, 93 S.Ct. at 2616 n. 8. (emphasis added).

I. Vagueness

¶ 9. Richmond asserts that the indecent exposure statute, Miss.Code Ann. § 97-29-31, is unconstitutional because it is vague and overbroad. In specific, Richmond claims that the statute is vague because it fails to specify the conduct prohibited. Further, Richmond argues that the terms "lewdly," "person," "private parts," and "public place" are not defined.

¶ 10. The vagueness doctrine has been explained by this Court in Corry v. State, 710 So.2d 853, 859 (Miss.1998). A statute challenged on the grounds of vagueness is void if "individuals of common intelligence must necessarily guess at the meaning and differ as to its application." Jones v. City of Meridian, 552 So.2d 820, 824 (Miss.1989) (quoting Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). A statute that is unconstitutionally vague is violative of the Fourteenth Amendment due process clause. Id.

¶ 11. Miss.Code Ann. § 97-29-31 defines indecent exposure as follows:

A person who wilfully and lewdly exposes his person, or private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, is guilty of a misdemeanor and, on conviction, shall be punished by a fine not exceeding five hundred dollars ($500.00) or be imprisoned not exceeding six (6) months, or both.

The statute in its current form has not been modified by the Legislature since 1971.

¶ 12. The City argues that the United States Supreme Court used the word "lewd" without further explanation in Miller. Miller, 413 U.S. at 25,

93 S.Ct....