Righter v. State, 87-204

• Decision Date: 01 April 1988
• Docket Number: No. 87-204,87-204
• Citation: 752 P.2d 416
• Parties: Larry R. RIGHTER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 416

752 P.2d 416

Larry R. RIGHTER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 87-204.

Supreme Court of Wyoming.

April 1, 1988.

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, Julie D. Naylor, Appellate Counsel, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Asst. Atty. Gen., Cheyenne, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Chief Justice.

Appellant Larry Righter challenges his conviction and sentence for the first degree sexual assaults of two victims, in violation of § 6-2-302(a)(iv), W.S.1977 (June 1983 Replacement). Appellant raises two issues on appeal:

I

"Whether or not § 6-2-302(a)(iv), W.S.1977 is unconstitutionally vague.

II

"Whether or not there was sufficient evidence to convict the Appellant of the crime of first degree sexual assault."

Affirmed.

On October 4, 1986, Officer Richard Moore of the Sheridan County Sheriff's Office received a report from two men that they had been sexually assaulted. The two are both mildly, mentally retarded men who live at the RENEW work group home in Sheridan. They testified at trial that on October 4, 1986, while on their way into town to pawn Victim No. 1's knife, they met appellant, a stranger to them, on the sidewalk outside appellant's home. Appellant told them that they would not get much money for the knife, offered to buy it himself, and invited the victims into his home. While inside, the three decided to get some liquor and "party" at appellant's house. After having Victim No. 2 change his pants, appellant and the victims walked to a nearby liquor store and bought two cases of beer and some vodka.

They returned to appellant's house, and the victims drank an unknown alcohol containing a worm. Appellant indicated to the victims that, if they ate the worm, it would make them "horny." After drinking the unknown alcohol, the victims drank some beer, and appellant gave Victim No. 2 an unknown pill, which the victim took. Appellant then gave Victim No. 2 some money and sent him to the store to buy some orange juice to add to the vodka. While Victim No. 2 was gone, appellant tried to hug and kiss Victim No. 1, but stopped when Victim No. 1 resisted.

When Victim No. 2 returned with the orange juice, the three drank some vodka mixed with the orange juice. Appellant then took Victim No. 2 into a bedroom and proceeded to perform both anal and oral sex on him, placing his penis into the victim's anus and mouth. Appellant then did the same to Victim No. 1.

The victims testified that there was a bow and arrow on the wall in the bedroom and that appellant had indicated that he would shoot them with it if they tried to sneak or run away. They further testified that the existence of the bow and arrow scared them.

After assaulting the men, appellant passed out. The victims attempted to revive appellant, thinking that something was wrong with him. The victims left appellant's house after reviving him a few times and returned to RENEW in somewhat intoxicated conditions. They later reported the incident to Officer Moore. The victims showed the officer the location of appellant's home, but appellant was not there. The victims individually were then shown six photographs and were asked if they could identify the man who assaulted them. Each identified appellant.

On November 3, 1986, and December 19, 1986, criminal complaints were filed against appellant for the first degree sexual assaults of the victims, in violation of § 6-2-302(a)(iv). Preliminary hearings were held on the complaints and appellant was bound over to the district court. After arraignments, appellant filed a motion to dismiss the first case on November 21, 1986. This motion was denied at the start of trial. The cases were joined by order of the court with the consent of the parties.

Appellant having waived his right to a jury trial, the case was tried before the court on March 24, 1987. Appellant renewed his motion to dismiss the first case and moved to dismiss the second case at the start of trial on the grounds that the informations were conclusory and failed to set forth with specificity the facts to indicate that appellant knew or should have known that the victims were suffering from developmental problems, and that the informations were so vague and indefinite that they failed to adequately apprise appellant of the charges against him. Appellant attributed the vagueness of the informations to the vagueness of the statute under which he was charged. The motions were denied. At the close of the state's case appellant moved for a judgment of acquittal, which also was denied. Appellant was found guilty of first degree sexual assault as to each victim and was ordered to be examined by the state hospital pursuant to §§ 7-13-601(b) and 7-13-602, W.S.1977. The hospital returned its conclusion that appellant was not mentally ill nor deficient, nor that he was a sexual deviant. After a presentence report was completed, the trial court sentenced appellant to a term of eight to fifteen years on each count, to be served concurrently, with credit for one year of presentence confinement. This appeal followed.

I

Appellant's first contention is that § 6-2-302(a)(iv) is unconstitutionally vague such that it violated his due process rights. Section 6-2-302(a)(iv), provides:

"(a) Any actor who inflicts sexual intrusion on a victim commits a sexual assault in the first degree if:

" * * *

"(iv) The actor knows or reasonably should know that the victim through a mental illness, mental deficiency or developmental disability is incapable of appraising the nature of the victim's conduct."

It is well settled that every law is presumed to be constitutional, resolving all reasonable doubt in its favor. Scadden v. State, Wyo., 732 P.2d 1036, 1039 (1987); and Keser v. State, Wyo., 706 P.2d 263, 266 (1985). In this context, we examine appellant's constitutional challenge.

The constitutional standard for vagueness of a criminal statute violative of due process has been defined by this and other courts. "An ordinance or statute is void for vagueness if it fails to give a person of ordinary sensibility fair notice that the contemplated conduct is forbidden. * * * " Keser v. State, supra, at 266. "A statute is unconstitutionally vague when '[M]en of common intelligence must necessarily guess at its meaning and differ as to its application.' * * * " Jenkins v. Werger, 564 F.Supp. 806, 808 (D.Wyo., 1983). See also Shunn v. State, Wyo., 742 P.2d 775, 777 (1987). "The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954), quoted in Keser v. State, supra, at 265-266.

Appellant asserts two arguments as the bases of his contention. The first argument embodies a comparison of the above statute with the Model Penal Code's similar statute, and those of other states, which carry lesser penalties for substantially similar offenses as those involved here. The Model Penal Code and the statutes of states cited by appellant charge the same conduct as a third degree offense as opposed to its first degree status in Wyoming. Appellant asserts that while the Model Penal Code and corresponding state statutes are vague, "[T]he model code accepts this vagueness because the punishment is lowered precisely because the vagueness is balanced against the need of society to protect mental deficients. * * * " From this, appellant concludes that because the Wyoming legislature has chosen to penalize one who sexually assaults a victim who is "[I]ncapable of appraising the nature of [his] conduct" more severely than either the Model Code or the other states noted, the statute necessarily is unconstitutionally vague, and therefore violative of appellant's due process rights. § 6-2-302(a)(iv). We do not agree.

This court has approved the proposition that the power to determine which acts are crimes, and the punishment for prohibited acts belongs to the legislative branch as an absolute, exclusive and inherent power not shared with the courts. Sorenson v. State, Wyo., 604 P.2d 1031, 1036 (1979). The statute in question expresses a public policy goal of protecting a class of particularly vulnerable citizens from sexual exploitation. Simply because the Wyoming legislature has chosen to more severely punish one engaging in the conduct proscribed by § 6-2-302(a)(iv), than other states, does not in itself render the statute unconstitutionally vague. Wyoming is not alone in so severely punishing the conduct proscribed by this statute. The American Law Institute, Model Penal Code and Commentaries, Part 2, § 213 n. 133, indicates that the other states which authorize the same punishment as that provided for in § 6-2-302(a)(iv) for this offense include Arizona, California, Delaware, Florida, Indiana, Kansas, Louisiana, Maryland, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, Pennsylvania, South Carolina, South Dakota, Utah, Vermont and Wisconsin.

Moreover, appellant's argument does not address the vagueness issue. The length of the sentence imposed by the statute is irrelevant to the question of whether it is unconstitutionally vague. The real question to be answered in vagueness challenges is whether a person of ordinary sensibility could reasonably understand what conduct is prohibited by the statute.

Appellant's second argument supporting his assertion that § 6-2-302(a)(iv) is unconstitutionally vague is that the statute is not capable of even-handed application. As a basis for this contention, appellant relies on evidence elicited at trial that Victim No. 2 had previously had sexual intercourse with a female who was not prosecuted for that act. The latitude thus granted to the prosecutor, appell...