Sabel v. State, No. 37184

• Court: Supreme Court of Georgia
• Writing for the Court: HILL; All the Justices concur, except MARSHALL and CLARKE, JJ., who concur in the judgment only and JORDAN; All the Justices concur, except JORDAN
• Citation: 248 Ga. 10,282 S.E.2d 61
• Docket Number: No. 37184
• Decision Date: 30 June 1981
• Parties: , 27 A.L.R.4th 1174 James Russell SABEL v. STATE.

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282 S.E.2d 61 248 Ga. 10, 27 A.L.R.4th 1174 James Russell SABEL
v.
STATE. No. 37184. Supreme Court of Georgia. June 30, 1981.
As Modified on Denial of Rehearing July 15, 1981.

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M. [248 Ga. 19] Wayne Sabel, Atlanta, for James Russell Sabel.

Lewis R. Slaton, Dist. Atty., Richard Hicks, Asst. Dist. Atty., Atlanta, for the State.

[248 Ga. 10] HILL, Presiding Justice.

The defendant was indicted and convicted of seven counts of criminal interference with government property as follows: spraying the State Capitol Building with black paint, spraying the State Highway Building with black paint, spraying the State Health Building with black paint, spraying the State Revenue Building with black paint, spraying the Plaza Park entrance wall with black paint, spraying the Vietnam Memorial with black paint, and spraying the statue of Thomas Watson with black paint.

The evidence showed that at 10:10 p.m. on Sunday, March 16, 1980, a State Building Authority security officer saw no markings on [248 Ga. 11] the buildings in the Capitol area. When his replacements went on patrol at about 11:10 p.m., they noticed "May Day", "Take History Into Our Hands" and "May 1, 1980" painted on the Revenue (Trinity-Washington) Building. As they approached the Capitol in their truck they saw similar markings on the steps of the Capitol and saw a man wearing a brown jacket and jeans, later identified as the defendant, hurriedly descending the steps. That area of the Capitol the defendant was leaving had been painted "May Da " (sic). To avoid going the wrong way on a one-way street, the security guards circled the Capitol and stopped the defendant, who was then across the street. ¹ One guard asked the defendant what he had been doing on the steps of the Capitol. He also asked the defendant to remove his hands from his pockets as a precautionary measure and to see if he had paint on them. ² The defendant complied, revealing what appeared to be black paint on both hands. The defendant was then asked to accompany the guards to the security office. A can of black spray paint was found near the site of the arrest. Thirty-seven

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slogans had been painted on the state's buildings, wall and statues ranging in size from one to twenty-five feet in length and one to three feet in height. All the slogans had one central theme, to publicize May Day, 1980.

The defendant was sentenced to seven, three-year concurrent sentences, six months to be served with the balance probated. The trial judge also imposed a fine of $1,000 and ordered restitution in the amount of $3,200. Defendant appeals the denial of his motion for a new trial.

1. Defendant contends that the trial court erred in refusing to suppress evidence (paint swabbings from his hands) obtained as a result of the search and seizure incident to his arrest. Defendant argues that he was arrested prior to the time the security guard learned that he had paint on his hands and that the guard lacked probable cause to arrest him at that time. He bases this argument on the testimony of one of the guards who stated that the defendant stopped when the guard asked him to, and that he would have physically restrained the defendant if he had not stopped when asked to do so.

A police officer may ask a citizen to stop without there being a "seizure" within the meaning of the fourth amendment. State v. [248 Ga. 12] Reid, 247 Ga. 445, 276 S.E.2d 617 (1980). A person is seized only when by means of physical force or show of authority his freedom of movement is restrained. Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, fn. 16 (1968); United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). The subjective intention of the officer to detain the defendant had he attempted to leave is irrelevant except insofar as that intention may have been conveyed to the defendant, United States v. Mendenhall, supra at 554, fn. 6, 100 S.Ct. at 1877, fn. 6; Dupree v. State, 247 Ga. 470, fn. 1, 277 S.E.2d 470 (1981). Here there was probable cause to arrest the defendant whether the seizure occurred before or after black paint was found on his hands. The trial court did not err in overruling the motion to suppress.

2. Defendant contends that Code § 26-2613(a) is unconstitutional in that it is vague, overbroad, discriminatory, ambiguous and subject to other constitutional defects. Code § 26-2613(a) provides: "A person commits interference with government property when he destroys, damages or defaces government property and upon conviction thereof shall be punished by imprisonment for not less than one nor more than five years."

In support of his contention that the statute is unconstitutionally vague, defendant points to Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), which requires a penal statute to "be sufficiently explicit to inform those who are subject to it what conduct ... will render them liable to its penalties.... (A)nd, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Defendant further urges that it is unnecessary to examine his conduct in deciding this issue since it is sufficient that a vague and overbroad statute lends itself to discriminatory enforcement in unpopular cases.

Defendant argues that Code § 26-2613 is vague inasmuch as it fails to define "deface." Where a word is not defined in a statute, it generally will be given its ordinary meaning. Code § 102-102(1). Webster's Third New International Dictionary defines "deface" as "to destroy or mar the face or external appearance of." Black's Law Dictionary provides a similar definition: "To mar or destroy the face.... Also used in respect of injury to monuments, buildings and other structures * * *." (4th Ed. 1968). Deface has also been interpreted as synonymous with injure. Saffell v. State, 113 Ark. 97, 99, 167 S.W. 483 (1914); State v. Fahy, 149 Conn. 577, 580-581, 183 A.2d 256 (1962) petition for cert. dismissed, 371 U.S. 943 (1962); see Vaughn v. May, 217 Mo.App. 613, 274 S.W. 969, 971, (1925). Deface has been defined further: [248 Ga. 13]

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"(t)o mar the face or surface of, disfigure or spoil the appearance of...." 26A C.J.S., Deface (1956). Thus, to deface, in both legal and lay parlance, is readily understood as meaning "to injure or mar the face of." As such, the General Assembly has enacted a "precise, narrowly drawn regulatory statute which proscribes certain specific behavior. (cit. omitted). It prohibits a particular type of conduct...." Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479, 13 L.Ed.2d 487 (1965). The conduct prohibited here is the destroying, damaging or defacing of government property. An average person of common intelligence can understand from reading the statute that spray painting state-owned buildings and statues is prohibited. See Joyce v. United States, 454 F.2d 971, 983 (D.C.Cir.1971) cert. denied 405 U.S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972); see also Horowitz v. State, 243 Ga. 441, 254 S.E.2d 828 (1979).

Defendant argues that the statute is overbroad. Relying on Landry v. Daley, 280 F.Supp. 938, 951 (N.D.Ill.1968), defendant urges that the concept of overbreadth "rests on principles of substantive due process which forbid the prohibition of certain individual freedoms. * * * (T)he issue is whether the language of the statute, given its normal meaning, is so broad that its sanctions may apply to conduct protected by the Constitution."

A statute will be struck as overbroad when it proscribes or can proscribe constitutionally protected conduct. Tribe, American Constitutional Law, § 12-24 (1978). The statute in question here is not overbroad inasmuch as it prohibits nothing that the state or federal constitutions protect. Id. The statute does not prohibit speech, nor does it restrict associational freedom; it prohibits the destruction, damaging and defacing of public property. Defendant has no "right" under the state or federal constitutions to destroy, damage or deface government property.

Defendant argues that the statute omits the words "intentionally" and "knowingly" and urges that without a requirement of scienter that it is unconstitutional. We are aware of no requirement that every separate criminal statute contain the word "intentionally." Code § 26-601 provides: "A crime is a violation of a statute of this State in which there shall be a union of joint operation of act, or omission to act, and intention, or criminal negligence." The trial judge charged this section and also charged that "intent to commit the crime charged in this indictment is an essential element that the State must prove beyond a reasonable doubt." Thus, under the charge of the court, defendant could not have been found guilty unless the essential element of intent had been found beyond a reasonable doubt.

Defendant contends that the statute invites selective and discriminatory enforcement and is therefore facially void and [248 Ga. 14] unconstitutional. He argues that the trial court took judicial notice that a large number of protesting...