Ruby v. State
| Decision Date | 19 October 2006 |
| Docket Number | No. 05-165.,05-165. |
| Citation | 144 P.3d 425,2006 WY 133 |
| Parties | Matthew Joseph RUBY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Kenneth M. Koski, State Public Defender, and Donna D. Domonkos, Appellate Counsel.
Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Eric A. Johnson, Director, Prosecution Assistance Program.
Before VOIGT, C.J., and GOLDEN, HILL*, KITE, and BURKE, JJ.
[¶ 1] Matthew J. Ruby (Ruby) appeals a conviction for taking indecent liberties with a child in violation of Wyo. Stat. Ann. § 14-3-105(a)1 (LexisNexis 2005). Ruby alleges that the evidence was insufficient to support the conviction and that § 14-3-105(a) was unconstitutionally vague as applied to his conduct. Our holding and analysis in Rabuck v. State, 2006 WY 25, 129 P.3d 861 (Wyo.2006) is dispositive of the arguments raised by Ruby and we will affirm his conviction.
[¶ 2] Ruby raises two issues:
I. Whether [Ruby's] conduct violated Wyo. Stat. Ann. § 14-3-105(a).
II. Whether Wyo. Stat. Ann. § 14-3-105 is unconstitutionally vague as applied to [Ruby's] conduct because there is not notice that his conduct was violative of the indecent liberties statute.
[¶ 3] Ruby's probation officer discovered a videotape that depicted Ruby engaging in sexual activities with a seven-year-old child. Ruby, who was sixteen at the time, was charged with two counts of second-degree sexual assault2 and one count of taking indecent liberties with a minor. The indecent liberties charge was predicated on Ruby's videotaping of the incident, not the acts themselves. After a trial, the jury returned a verdict of not guilty on the two second-degree sexual assault charges, guilty on two lesser included charges of third-degree sexual assault,3 and guilty on the count of indecent liberties. Ruby was sentenced to five to fifteen years on each of the third-degree sexual assault counts with the sentences to run consecutively. He received a five- to ten-year sentence on the indecent liberties count that was to run concurrently to the other sentences. On appeal, Ruby challenges only the validity of the indecent liberties conviction.
[¶ 4] In reviewing claims that a conviction is not supported by sufficient evidence:
[T]his Court accepts as true the State's evidence, affording to the State those inferences which may be reasonably and fairly drawn from that evidence. This Court does not consider the evidence in conflict with the State's evidence and the inferences therefrom. Our duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did.
Jones v. State, 2006 WY 40, ¶ 9, 132 P.3d 162, 165 (Wyo.2006) ().
[¶ 5] We apply the following standards in analyzing claims that a statute is unconstitutional as applied to particular conduct:
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 v. State, 2004 WY 101, ¶ 15, 96 P.3d 1027, 1031, fn. 2 (Wyo. 2004)]. 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 v. State, 901 P.2d 408, 412 (Wyo. 1995) and Griego v. State, 761 P.2d 973, 976 (Wyo.1988)]
Rabuck, ¶ 16, 129 P.3d at 865. Ruby does not allege discriminatory enforcement; he contends that the statute failed to provide him with sufficient notice that his conduct would violate its terms.
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.
Id. ().
[¶ 6] While Ruby raises two separate issues, his arguments in each are interrelated. Ruby argues that § 14-3-105(a) proscribes sexual assault. He contends that inherent in that proscription is a requirement that there be contact between the defendant and the victim. Ruby notes that the conduct underlying the indecent liberties charge against him was the videotaping, not the physical contact between him and the victim, and that there was no evidence that the victim had any knowledge of the videotaping. Since videotaping by itself is not a sexual assault, Ruby concludes that the statute "does not prohibit the discreet video recording of minors even if the act being recorded is indecent." Accordingly, Ruby concludes that his conduct was not contemplated by the statute and there is insufficient evidence to sustain the conviction. Similarly, Ruby argues that § 14-3-105(a) is unconstitutionally vague as applied to his conduct because it is not clear that videotaping a sexual assault is prohibited under the statute.
[¶ 7] After Ruby's brief was filed in this case, we issued our decision in Rabuck. Rabuck had secretly placed a video camera in the bedroom closet of two teenage girls who were staying at his house. Rabuck was charged with two counts of taking indecent liberties with a child in violation of § 14-3-105(a). On appeal, he challenged the constitutionality of the statute as applied to his conduct making the same arguments put forth by Ruby:
Mr. Rabuck claims that the statute, as applied to him, is too vague because it requires speculation about which aspect of his conduct was forbidden. He questions whether his conduct was forbidden: (1) because he videotaped the juveniles; (2) because he recorded them in a state of undress; or (3) because he did not erase those images. However, we need not engage in this dissection and postulate whether one portion of his conduct, alone, would violate the statute. We review Mr. Rabuck's challenge to the statute as applied to him, which means that we consider his specific conduct in its entirety. Because he does not challenge the facial validity of the statute, Mr. Rabuck lacks "standing" to assert hypothetical applications of the statute to support his "as applied" challenge. [Alcalde v. State, 2003 WY 99, ¶ 13, 74 P.3d 1253, 1259-60 (Wyo. 2003)]
Mr. Rabuck concedes that, overall, his conduct could be considered indecent or improper, but he argues that prior judicial application and construction of the indecent liberties statute does not support its application here. He relies heavily upon the absence of any Wyoming case law involving the indecent liberties statute applied to similar conduct to support his claim that there was insufficient notice that his conduct would violate Wyo. Stat. Ann. § 14-3-105(a). Mr. Rabuck is correct that we have not previously addressed the indecent liberties statute in the context of surreptitious videotaping. However, the lack of prior cases discussing similar conduct is not determinative. As the State aptly observes, the indecent liberties statute should not be subject to challenge "by virtue of the fact that it is broad enough to capture even innovative forms of sexual imposition upon minors." The indecent liberties statute has been a part of Wyoming law for nearly five decades and we have uniformly given it broad application. [Schmidt v. State, 2001 WY 73, ¶ 27, 29 P.3d 76, 84-85 (Wyo.2001)].
In several instances when we have considered "novel" conduct in light of the application of a criminal statute, we have examined the defendant's consciousness of guilt in assessing whether the defendant had notice of the criminal prohibition. [Sorenson v. State, 604 P.2d 1031, 1035 (Wyo.1979)] (defendant's "inquiry to the twelve-year-old girl: `you won't tell anybody, will you?' reflected recognition" that his act of rubbing her breasts and trying to unbutton her shirt violated the indecent liberties statute); Campbell v. State, 999 P.2d 649, 658 (Wyo.2000) (); Saiz v. State, 2001 WY 76, ¶ 14, 30 P.3d 21, 26 (Wyo.2001) (). Here, Mr. Rabuck disposed of the video receiver when he learned that the camera had been discovered. He attempted to deceive Detective Hloucal by telling him that he had not recorded or seen any images and that the system had not worked, when, in fact, he had made several recordings. Mr. Rabuck's efforts to conceal his conduct indicate his understanding that his conduct was unlawful.
Turning to our indecent liberties cases involving other conduct, Mr. Rabuck argues that these cases have limited the application of the statute. He makes several assertions that his behavior does not fall within the ambit of Wyo. Stat. Ann. § 14-3-105(a), as circumscribed by prior judicial construction. First, he claims that the indecent liberties statute only prohibits conduct which affects the "morals" of the minor victim and cites to our decision in [Pierson v. State, 956 P.2d 1119 (Wyo. 1998)] where we stated, "[t]he purpose of the indecent liberties statute is to protect the morals of a child...." Pierson, 956 P.2d at 1124 (citing Derksen v. State, 845 P.2d 1383, 1387 (Wyo.1993)). He argues that he did not "endanger the morals of the juvenile females he discreetly videotaped in a state of undress" because they "were not aware of the recordings until after the video camera was found" and he "did not encourage the females to engage in any type of act or conduct which...
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