Saiz v. State

• Decision Date: 20 August 2001
• Docket Number: No. 00-170.,00-170.
• Citation: 30 P.3d 21,2001 WY 76
• Parties: Ivan Gilbert SAIZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

30 P.3d 21

2001 WY 76

Ivan Gilbert SAIZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-170.

Supreme Court of Wyoming.

August 20, 2001.

Sylvia L. Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Assistant Appellate Counsel.

Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General.

Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] In December 1999, a jury found appellant, Ivan Saiz, guilty of first-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(iv) (LexisNexis 2001),¹ and the district court sentenced appellant to a seven to fourteen year prison term. Appellant appeals from the Judgment and Sentence of the Court, asserting Wyo. Stat. Ann. § 6-2-302(a)(iv) is unconstitutionally vague, both facially and as applied to his case, and that the evidence at trial was insufficient to convict him of first-degree sexual assault. We affirm.

ISSUES

[¶ 2] Appellant raises two issues on appeal:

ISSUE I

Whether W.S. § 6-2-302(a)(iv) is unconstitutionally vague facially and as applied to the facts in the case, denying appellant due process of law, because it provides no standard of conduct for which a person of ordinary sensibilities could reasonably understand that which is prohibited and it allows for arbitrary and discriminatory enforcement.

ISSUE II

Whether Appellant's conviction for sexual assault cannot stand because insufficient evidence supports it.

The State of Wyoming, as appellee, phrases the issues in substantially the same manner.

FACTS

[¶ 3] The victim, age nineteen, was born with Down's syndrome and is considered "moderately retarded." On September 30, 1998, the victim and her mother were relaxing at their Cheyenne residence upon returning home from school² and work respectively. At some point, the mother's boyfriend and appellant arrived at the residence and all four individuals began watching television. Appellant sat next to the victim on the floor, where they had a brief conversation, while the mother and her boyfriend sat together on the couch.

[¶ 4] The mother, the boyfriend, and appellant later met at a local bar to "shoot" darts,³ leaving the victim at home with her brother. The victim went to her bedroom, closed the door and put on her pajamas, attempting to sleep while listening to the radio. The three adults eventually returned to the residence with a twelve-pack of beer, at which time the mother verified that the victim was in bed. The mother and her boyfriend retired to their bedroom, providing appellant a blanket and pillow, presumably to sleep on the couch. Appellant obliged because he "pitched in on the beer" and "wanted to drink what [he] pitched in."

[¶ 5] The victim testified that appellant, without invitation, entered her bedroom and initiated a sexual encounter with her. Appellant testified in his own defense and admitted that he entered the victim's bedroom, where he got into her bed, kissed the victim on the mouth, touched her breasts, removed the victim's pants and performed oral sex on her, and touched and digitally penetrated the victim's vagina. Appellant ceased the encounter when the victim stated that she had to "go to school tomorrow." Appellant then left the victim's bedroom, finished his beer, and went to bed in the living room.⁴

[¶ 6] Appellant's version of the events contradicted the victim's testimony in several respects. According to appellant, the victim initiated contact with him by hugging and kissing him and putting her hand on his thigh, claiming also that the victim led appellant to her bedroom, where she responded favorably to his sexual advances. Nevertheless, the jury found appellant guilty of first-degree sexual assault.

DISCUSSION

CONSTITUTIONALITY OF WYO. STAT.ANN. § 6-2-302(a)(iv)

[¶ 7] Appellant contends that Wyo. Stat. Ann. § 6-2-302(a)(iv) is unconstitutionally vague, both on its face and as applied to his case. In particular, appellant argues that the statute is facially deficient because it does not precisely define or objectively quantify how an actor can know that another person is mentally impaired or at what level, cognitive or otherwise, a person becomes mentally deficient, which causes one to "guess" whether a victim is capable of understanding the nature of his or her conduct. Appellant reiterates this argument in the context of whether the statute is unconstitutionally vague as applied to his case, adding that the statute is subject to arbitrary and discriminatory application across the broad spectrum of victims' assessed levels of cognitive thinking and understanding.

[¶ 8] Wyo. Stat. Ann. § 6-2-302 provides, in pertinent part:

(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.

Wyo. Stat. Ann. § 6-2-301 (Lexis 1999) defines "actor," "victim," and "sexual intrusion." "Incapable" commonly means "lacking capacity, ability, or qualification for the purpose or end in view * * *." Merriam Webster's Collegiate Dictionary 586-87 (10th ed.1999). In this context, "appraising" commonly means "to evaluate the worth, significance, or status of." Id. at 57.

[¶ 9] In challenging a statute for facial vagueness, appellant must demonstrate that the statute reaches a "substantial amount of constitutionally protected conduct,⁵ or the statute specifies no standard of conduct at all." Campbell v. State, 999 P.2d 649, 657 (Wyo.2000). The ultimate test is "whether a person of ordinary intelligence could read the statute and comprehend what conduct is prohibited" because laws must provide explicit standards for those who apply them. Id. "`A statute employs a standard, for purposes of vagueness, if "by [its] terms or as authoritatively construed [it applies] without question to certain activities, but whose application to other behavior is uncertain,"'" whereas a vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Id. (quoting Luplow v. State, 897 P.2d 463, 466 (Wyo.1995)

and Griego v. State, 761 P.2d 973, 976 (Wyo.1988)).

[¶ 10] Every law is presumed constitutional, with all doubt resolved in its favor. Campbell, 999 P.2d at 657 (quoting Luplow, 897 P.2d at 466

and Keser v. State, 706 P.2d 263, 266 (Wyo.1985)). "In considering statutory language, the plain, ordinary and usual meaning of the words used controls in the absence of clear statutory provisions to the contrary." Campbell, 999 P.2d at 657 (citing Keser, 706 P.2d at 266). While penal statutes are strictly construed, "they need not be given unnecessarily narrow meaning in disregard of the obvious legislative purpose and intent. "Campbell, 999 P.2d at 657. Indeed, "`lack of precision is not itself offensive to the requirements of due process.'" Sorenson v. State, 604 P.2d 1031, 1033 (Wyo.1979) (quoting Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957)).

[¶ 11] In Righter v. State, 752 P.2d 416, 420 (Wyo.1988), we established that the language of Wyo. Stat. Ann. § 6-2-302(a)(iv) "should not be analyzed in a vacuum. Rather, it should be considered in light of the obvious legislative intent of protecting a class of persons who cannot fully comprehend what they are doing."⁶ We explicitly addressed whether Wyo. Stat. Ann. § 6-2-302(a)(iv) was unconstitutionally vague, finding that

[w]hat is clearly proscribed is the infliction of sexual intrusion * * * on a victim who is mentally deficient. In essence, an ordinary intelligent person applying common sense to the statute would not have to guess at its meaning to understand that to avoid punishment under the statute, one must refrain from performing a sex act with a person who the actor knows, or should know, is mentally incapable of understanding the nature and possible consequences of sexual activity. No other meaning would be attributed by persons of ordinary sensibility than that which the statute clearly states. Section 6-2-302(a)(iv) is not unconstitutionally vague.

Righter, 752 P.2d at 420. In other words, considering the plain and ordinary meaning of the statutory language in the context of the statute's purpose, we found that the statute incorporates "an adequate standard of conduct so that a person of ordinary intelligence readily could read this statute and comprehend the conduct that is prohibited." Brock v. State, 981 P.2d 465, 470 (Wyo.1999).

[¶ 12] The statute certainly is not so deficient as to specify "no standard at all." "[A] person of ordinary intelligence can weigh his contemplated conduct against a prohibition of [inflicting sexual intrusion on a victim who the actor knows or reasonably should know is mentally incapable of understanding the nature and possible consequences of sexual activity] and know whether or not such contemplated conduct is proscribed by it." Sorenson, 604 P.2d at 1035. As another court has commented regarding similar statutory language:

"The language ... sufficiently warns a person of common intelligence that engaging in sexual [intrusion] with one who is mentally handicapped to a degree that he or she cannot understand the nature and consequences of engaging in the act is prohibited. Under normal circumstances a mental incapacity to consent would be apparent in ordinary social intercourse. The fact that further questioning may be necessary in some cases to determine if one's partner fully understands the nature and consequences of sexual intercourse, does not render the statute unconstitutional."

State v. Smith, 215 Wis.2d 84, 572 N.W.2d 496, 500 (1997) (quoting Keim...