Senf v. State

• Decision Date: 12 February 1993
• Parties: Robert Wayne SENF v. STATE. CR 91-1207.
• Court: Alabama Court of Criminal Appeals

Page 435

622 So.2d 435

Robert Wayne SENF v. STATE.

CR 91-1207.

Court of Criminal Appeals of Alabama.

Feb. 12, 1993.

Rehearing Denied March 26, 1993.

Certiorari Denied June 11, 1993

Alabama Supreme Court 1921005.

Thomas M. Goggans, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Anita Young, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

The appellant, Robert Wayne Senf, was charged by separate complaints with four instances of contributing to the delinquency of a child, in violation of Ala.Code 1975, § 12-15-13. These charges resulted from the appellant's permitting a group of teenagers to use his residence to hold a party at which beer was available to and was consumed by the teenagers. The appellant was first tried in juvenile court, where he was adjudged guilty and was sentenced on all four charges. His appeal to this Court from those convictions was dismissed, Senf v. State, 595 So.2d 925 (Ala.Cr.App.1991) (Table), and the cases were remanded for trial de novo in circuit court, see Rule 28(B), A.R.Juv.P. The circuit court, sitting without a jury, adjudged the appellant guilty on all four charges and sentenced him to six months' imprisonment in the county jail on each conviction, with the sentences to run concurrently. The appellant was also fined $100 and was ordered to pay court costs and $50 to the Crime Victims' Compensation Fund in each case.

Prior to trial, the appellant filed written motions to dismiss the four cases. These motions alleged that § 12-15-13 is unconstitutionally vague and indefinite and that the complaints against the appellant are not sufficient to apprise him of the nature of the charges against him. At the beginning of the bench trial, the trial court summarily denied the motions to dismiss without any discussion thereof. R. 5. In this appeal, the appellant reasserts his constitutional challenge of § 12-15-13 and his challenge of the sufficiency of the complaints. He also contends that the evidence is not sufficient to support his convictions.

I

It is well settled that, in order to pass constitutional muster, a penal statute must "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, 1858, 75 L.Ed.2d 903 (1983) (citations omitted).

"Due process requires that all 'be informed as to what the State commands or forbids,' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed 888 (1939), and that 'men of common intelligence' not be forced to guess at the meaning of the criminal law. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)."

Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974). However, because "[t]he essential purpose of the 'void for vagueness' doctrine is to warn individuals of the criminal consequences of their conduct," Jordan v. De George, 341 U.S. 223, 230, 71 S.Ct. 703, 707, 95 L.Ed. 886 (1951), "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness," Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974), "even though the statute may well be vague as applied to others," Aiello v. City of Wilmington, 623 F.2d 845, 850 (3d Cir.1980). ¹ Therefore, a defendant who challenges a statute on the grounds of vagueness "must demonstrate that the statute under attack is vague as applied to his own conduct, regardless of the potentially vague applications to others." Aiello, 623 F.2d at 850 (emphasis added). Accord Rode v. Dellarciprete, 845 F.2d 1195, 1199-1200 (3d Cir.1988). The appellant in this case has failed to meet this burden.

The first sentence of § 12-15-13(a) provides that

"[i]t shall be unlawful for any parent, guardian or other person to willfully aid, encourage or cause any child to become or remain delinquent, dependent or in need of supervision or by words, acts, threats, commands or persuasions, to induce or endeavor to induce, aid or encourage any child to do or perform any act or to follow any course of conduct which would cause or manifestly tend to cause such child to become or remain delinquent, dependent or in need of supervision or by the neglect of any lawful duty or in any other manner contribute to the delinquency, dependency or need of supervision of a child."

As used in § 12-15-13, a "child" is "an individual under the age of 18, or under 19 years of age and before the juvenile court for a matter arising before that individual's 18th birthday," § 12-15-1(3); a "delinquent child" is "[a] child who has committed a delinquent act and is in need of care or rehabilitation," § 12-15-1(9); and a "delinquent act" is any "act committed by a child that is designated a violation, misdemeanor or felony offense under the law of this state," § 12-15-1(8).

The first sentence of § 12-15-13 essentially sets forth four alternative means by which the offense of contributing to the delinquency of a child may be committed: ² (1) "willfully aid[ing], encourag[ing] or caus[ing]" a person under the age of 18 to commit a violation, misdemeanor, or felony; (2) using "words, acts, threats, commands or persuasions, to induce or endeavor to induce, aid or encourage" a person under the age of 18 to engage in any act or course of conduct that "would cause or manifestly tend to cause such child to" commit a violation, misdemeanor, or felony; (3) "neglect[ing] ... [a] lawful duty ... [thereby] contribut[ing] to the" commission of a violation, misdemeanor, or felony by a person under the age of 18; and (4) "in any other manner contribut[ing]" to the commission of a violation, misdemeanor, or felony by a person under the age of 18. The third and fourth alternatives may well be unconstitutionally vague; ³ however, the appellant was not charged under either of those alternatives. The appellant was charged under the first and second alternatives, which might be considered vague in the context of some conduct not here at issue, ⁴ but which we find sufficiently clear to have apprised the appellant that his particular conduct was criminal.

In this state, it is a misdemeanor for persons under the age of 21 "to purchase, consume, possess or to transport" any alcoholic beverage. § 28-1-5; § 28-3A-25(a)(19), (b)(2). Consequently, one who willfully furnishes alcoholic beverages to persons under the age of 18 clearly violates both the first and second alternatives of § 12-15-13(a). See Liao v. Harry's Bar, 574 So.2d 775, 781 (Ala.1990); Martin v. Watts, 513 So.2d 958, 963 (Ala.1987).

Briefly summarized, the State's evidence tended to show that the appellant agreed to allow a group of teenagers to hold a party at his house. A keg of beer was brought to the party by one of the teenagers and, when it was empty, a second keg of beer was obtained by the appellant. A number of the teenagers attending the party were under the age of 18 and many of these teenagers consumed beer on the appellant's premises. The first and second alternatives of § 12-15-13(a) are sufficiently definite to warn the appellant that his conduct was prohibited.

II

The appellant contends that the complaints are not sufficient to apprise him of the nature of the charges against him. To support this contention, he relies upon his argument that § 12-15-13 is unconstitutionally vague. Having determined in Part I that § 12-15-13 is not vague as applied to the appellant's conduct, this second argument must also fail.

The appellant further asserts that the complaints are insufficient because the prosecution failed "to allege some nexus between Appellant's actions and the named minor children being delinquent." Appellant's brief at 15. As noted above in Part I, the appellant was charged under the first and second alternatives of § 12-15-13(a). The complaints charged that the appellant

"did aid and encourage [a named individual], a minor child under eighteen years of age to become delinquent, or has, by words, acts of omission, threats, commands, or persuasion, induced or endeavored to induce, aided or encouraged said child in such county to do or perform an act or to follow a course of conduct which would cause or manifestly tend to cause such child to become or remain delinquent, dependent or in need of supervision, in that [the appellant] did, within said 12 months [before the commencement of this prosecution], within said county, aid, encourage and accompany said minor child to attend a party at his home and to have access to kegs of beer at a party with minors in possession of it, and such other acts which are detrimental to the general health and welfare of the said minor child...."

A charging instrument must "apprise the accused not only of the nature of the offense but also of the particular act or means by which it was committed." Harrison v. State, 384 So.2d 641, 643 (Ala.Cr.App.1980). Although the factual allegations are inartfully phrased, a fair reading of the complaints indicate that the appellant was charged with contributing to the delinquency of the named children by aiding them in the commission of the misdemeanor offense of possessing alcohol. The "nexus" between the appellant's actions and the commission of delinquent acts by the children is apparent from the complaints.

III

The appellant argues that the evidence was insufficient to support his convictions. Specifically, he contends that the State failed to prove "a nexus between any actions of Appellant and any of the named minors becoming delinquent." Appellant's brief at 19.

B.D.S. ⁵ testified that in December 1990, he arranged through a mutual acquaintance to hold a party at the appellant's residence in Loachapoka, Alabama. B.D.S. was 17 years old at the time. Prior to the party, B.D.S. distributed at his high school flyers on which appeared the words "Nasty Brew IV," a...