Russ v. State, 1D01-0205.

• Decision Date: 19 December 2002
• Docket Number: No. 1D01-0205.,1D01-0205.
• Citation: 832 So.2d 901
• Parties: Glendell RUSS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

832 So.2d 901

Glendell RUSS, Appellant, v. STATE of Florida, Appellee.

No. 1D01-0205.

District Court of Appeal of Florida, First District.

December 19, 2002.

Nancy A. Daniels, Public Defender; and Andrew Thomas, Assistant Public Defender, Tallahassee, for Appellant.

Richard E. Doran, Attorney General; and Thomas D. Winokur, Assistant Public Defender, Tallahassee, for Appellee.

BROWNING, J.

Glendell Russ (Appellant), a former city commissioner in Quincy, Gadsden County, was charged with various offenses under the election code relating to absentee ballots cast in the March 1999 city commission race. The jury acquitted Appellant of one count and found him guilty of the other charges. Appellant was adjudicated guilty on the four counts and sentenced to 15 months' imprisonment, suspended for 3 years' probation. Appellant contends that two of the statutes pursuant to which he was charged are unconstitutional, facially and as-applied, due to their vagueness and overbreadth; that the trial court erred in failing to sever the counts by elector and/or transaction; that the court erred in allowing the State to argue and introduce evidence of other crimes or wrongdoing; that the court erred by not granting the motion for judgment of acquittal in its entirety; and that the court erred in denying a request to define "intimidation." Although we find no deficiency in the challenged statutes or error in the trial court's other rulings, we conclude that the trial court reversibly erred by denying defense counsel's relevance objection to questions concerning similar wrongdoing by a third party in a previous election. Accordingly, we are constrained to reverse the convictions and sentences and remand for a new trial.

In its third amended information, the State charged Appellant with criminally abusing the absentee balloting process 1) by interfering with the right to vote (or not vote) by intimidating, threatening, or coercing (or attempting to do so) electors Nancy Williams on March 12, 1999; and Tracy Youman on March 11, 1999 (Counts I & V, respectively), in violation of section 104.0515, Florida Statutes (1999); 2) by corruptly influencing voting by attempting to influence, deceive, or deter, directly or indirectly, by bribery, menace, threat, or other corruption, electors Williams on March 12, 1999; and Youman on March 11, 1999 (Counts II & VI, respectively), in the free exercise of their right to vote, in violation of section 104.061, Florida Statutes (1999); 3) by false swearing between February 1 and March 11, 1999, by procuring Onterrio Ward to swear or affirm falsely to an oath or affirmation in connection with or arising out of voting or elections (Count III), in violation of section 104.011, Florida Statutes (1999); and 4) by committing fraud in connection with casting a vote on March 11, 1999, by perpetrating, attempting to perpetrate, or aiding in the perpetration of fraud in connection with a vote cast, to be cast, or attempted to be cast by elector Ward (Count IV), in violation of section 104.041, Florida Statutes (1999). Given the nature of the charges, the State was allowed to present evidence that Appellant is 6'-4" and weighed 260 pounds.

Constitutional Challenges

Appellant filed several pretrial motions to dismiss certain counts of a series of informations because of the alleged unconstitutionality of vague or overbroad underlying statutes. Citing the right to free speech and Trushin v. State, 425 So.2d 1126 (Fla.1982), Appellant attacked two statutes specifically. Section 104.0515 states in pertinent part:

No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or not to vote as that person may choose, or for the purpose of causing such other person to vote for, or not vote for, any candidate for any office at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate.

§ 104.0515(3), Fla. Stat. (1999). Section 104.061 states in pertinent part:

Whoever by bribery, menace, threat, or other corruption whatsoever, either directly or indirectly, attempts to influence, deceive, or deter any elector in voting or interferes with him or her in the free exercise of the elector's right to vote at any election commits a felony of the third degree, ....

§ 104.061(1), Fla. Stat. (1999).

One motion to dismiss sought a declaration that section 104.061 is unconstitutional because the term "menace" is vague and overbroad unless its meaning, in the statute and as-applied, is the same as "threat." Another motion alleged that both statutes improperly prohibit acts that are protected by the Voting Rights Act of 1965. See 42 U.S.C. § 1971(b). Yet another motion sought a declaration that section 104.061 is unconstitutional because the terms "threat" and "other corruption," as well as "menace," are vague and ambiguous. Appellant contended that "menace" also is overbroad. The defense asserted that Appellant's charged conduct constitutes "pure political speech" protected under the United States and Florida Constitutions. Specifically, counsel contended that it is perfectly lawful to exercise free-speech rights to attempt to influence electors in their voting, and that these statutory provisions, if enforced, "would virtually outlaw most if not all politicking." The defense found no vagueness problem with "other corruption whatsoever" in section 104.061(1), so long as the words are construed as offering something of value in exchange for a commitment to vote.

The prosecutor noted that "menace" and "threat" are used in the same provision and have different meanings. The State argued that the statutory terms in question are understandable and not vague. The State notes on appeal that at that point, the trial court appears to have ruled on only one motion when it determined that "menace" and "other corruption" are not unconstitutionally vague.

At the close of the State's case, defense counsel moved for a judgment of acquittal primarily on the ground that the two statutes are unconstitutionally vague. Counsel argued that "intimidate" involves "a very nebulous concept" and that section 104.0515 fails to provide guidance as to what the Legislature intended to define as unlawful or criminal intimidation, threat, or coercion. The defense reiterated its positions that "menace" in section 104.061 is vague and overbroad and that the statute fails to provide adequate notice as to what conduct is proscribed. Counsel asserted that "other corruption" is unconstitutionally vague unless its meaning is limited. The State renewed its argument that the challenged language in both statutes is neither vague nor overbroad. The trial court found no constitutional deficiency in either statute.

Issues involving constitutional challenges to, or construction of, statutes are pure questions of law subject to de novo review. City of Jacksonville v. Cook, 765 So.2d 289 (Fla. 1st DCA 2000), quashed on other grounds, 823 So.2d 86 (Fla.2002); Department of Ins. v. Keys Title and Abstract Co., Inc., 741 So.2d 599 (Fla. 1st DCA 1999). "All statutes are presumed to be constitutional, and the party challenging the constitutionality of a statute bears the burden of demonstrating that it is invalid." Hudson v. State, 825 So.2d 460, 465 (Fla. 1st DCA 2002). For the reasons that follow, we conclude that Appellant has failed to carry his burden of demonstrating that either section 104.0515 or section 104.061 is unconstitutional, facially or as-applied.

The "void-for-vagueness doctrine requires that a penal statute 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." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The benchmark for testing vagueness is whether a criminal statute affords a person of ordinary or common intelligence fair notice of what constitutes forbidden conduct. Bouters v. State, 659 So.2d 235, 238 (Fla.1995) (citing Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)); State v. Hagan, 387 So.2d 943, 945 (Fla. 1980). A vagueness claim "must be evaluated by an examination of the statute in the abstract if the statute is one that purports to regulate constitutionally protected activity such as speech...." Travis v. State, 700 So.2d 104, 105 (Fla. 1st DCA 1997). In construing a penal statute against an attack of vagueness, any doubt should be resolved in favor of the defendant and against the State. State v. Wershow, 343 So.2d 605, 608 (Fla.1977). "[W]here a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense." State v. Mitro, 700 So.2d 643, 645 (Fla.1997). The State correctly notes that none of the words employed in the two challenged provisions have technical or specialized definitions; each of the words is used as it is understood in common parlance. Both statutes should be given their plain meaning, for the language in each is clear and unambiguous and conveys a clear, definite meaning. See Florida Hosp. v. State of Fla. Agency for Health Care Admin., 823 So.2d 844 (Fla. 1st DCA 2002)

. In summary, the words in question "convey[] a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice." Hagan, 387 So.2d at 945. Accordingly, Appellant has not demonstrated a problem with vagueness in either section 104.0515 or section 104.061, facially or as-applied.

The overbreadth doctrine applies to statutes that are "susceptible of application" to constitutionally protected conduct, e.g., protected speech. Carricarte v. State, 384 So.2d 1261, 1262 (Fla.1980). "A `facial' challenge, in this context, means a claim that the law...