Smallwood v. State

• Decision Date: 16 November 2020
• Docket Number: S20A1274
• Citation: 310 Ga. 445,851 S.E.2d 595
• Parties: SMALLWOOD v. The STATE.
• Court: Georgia Supreme Court

310 Ga. 445

851 S.E.2d 595

SMALLWOOD

v.The STATE.

S20A1274

Supreme Court of Georgia.

Decided: November 16, 2020

Hunter J. Rodgers, Keegan C. Gary, for Appellant.

Dick R. Donovan, District Attorney, Elisabeth M. Giuliani, Anthony B. Williams, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for Appellee.

McMillian, Justice.

Derek Smallwood challenges his conviction for entering an automobile under OCGA § 16-8-18, asserting that the statute is void for vagueness, or alternatively, under the rule of lenity, that he should have been sentenced for misdemeanor criminal trespass of a vehicle. We conclude that OCGA § 16-8-18 is not unconstitutionally vague as applied to the facts of Smallwood's case, and because that statute prevails as the more specific statute over criminal trespass of a vehicle, the rule of lenity does not apply. Therefore, we affirm.

1. The stipulated facts from Smallwood's bench trial are as follows:

On January 18, 2019, several units of the Paulding County Sheriff's Office were dispatched to Briar Patch BBQ's employee parking lot in reference to a possible Entering an Automobile. The victim was informed by a coworker that a person was in his car.

Deputy Investigator Nathan Geyer approached the person in the vehicle, a tan Toyota Camry, and told the person to exit the vehicle. The person was identified as the Defendant, Derek Paul Smallwood, by his date of birth, and he was detained at that time.

The vehicle's owner, who was on scene, informed the deputies that he did not know Mr. Smallwood, nor gave him permission to be in his car. The owner told the deputies that he was missing his cell phone from inside the car, as well as a bottle of laundry soap. Both items were found in a black grocery sack Mr. Smallwood had with him in his backpack. Also inside the backpack was a glass smoking pipe with burnt residue of marijuana, a grinder, and a digital scale.

When the deputies asked him about the car, Mr. Smallwood told them that he was cold and he thought the car looked abandoned, so he opened the passenger side door and climbed in. The deputies then arrested Mr. Smallwood for Entering an Automobile, Theft by Taking, and Possession of Drug Related Objects.

On March 6, 2019, Smallwood was accused of entering an automobile that was the property of another person with the intent to commit theft under OCGA § 16-8-18¹ (Count 1), theft by taking (Count 2), and two counts of possession of drug-related objects (Counts 3 and 4). Smallwood thereafter filed a general demurrer to Count 1 of the accusation on the grounds that OCGA § 16-8-18 was void for vagueness. At a February 18, 2020 hearing, the trial court heard and rejected Smallwood's arguments that OCGA § 16-8-18 is void on its face and as applied. Smallwood then waived his right to a jury trial and proceeded with a bench trial on the stipulated facts. The trial court found him guilty of all counts and sentenced him in total to 12 months to be served on probation with a $405 fine. Smallwood also filed a motion in arrest of judgment as to Count 1 of the accusation, which the trial court denied. Smallwood timely filed a notice of appeal and asked for a supersedeas bond pending appeal, which the trial court granted.

2. Smallwood claims that his entering an automobile conviction must be overturned because OCGA § 16-8-18 is unconstitutionally

vague on its face and as applied to his case. We reject these challenges on the grounds that he can prevail on his facial challenge only if he prevails on his as-applied challenge, and OCGA § 16-8-18 is not vague as applied to Smallwood.

The Fourteenth Amendment to the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law."²

It is well established that the void for vagueness doctrine of the due process clause requires that a challenged statute or ordinance give a person of ordinary intelligence fair warning that specific conduct is forbidden or mandated and provide sufficient specificity so as not to encourage arbitrary and discriminatory enforcement.

Derrico v. State , 306 Ga. 634, 635 (2), 831 S.E.2d 794 (2019) (citation and punctuation omitted). "Vagueness invalidates criminal statutes that fail to provide clear warning to the average citizen of what conduct is criminally forbidden or fail to provide explicit standards for its enforcement to law enforcement officers.... [V]ague laws without clear enforcement criteria can result in unfair, discriminatory enforcement." In the Interest of K. R. S. , 284 Ga. 853, 854 (2), 672 S.E.2d 622 (2009).

"[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." Daddario v. State , 307 Ga. 179, 188 (2) (b), 835 S.E.2d 181 (2019) (citation and punctuation omitted). In other words, outside of the First Amendment context, if a challenger's as-applied vagueness challenge fails, then his facial challenge also fails. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 495 (II), 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ("A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.").

Smallwood asserts that under recent United States Supreme Court precedent, his facial challenge prevails as long as he can show that in some hypothetical circumstance, OCGA § 16-8-18 could be applied in such a way that the offender would not have fair warning that his conduct violated the statute.³ Compare United States v. Salerno , 481 U.S. 739, 745 (II), 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (to succeed on a facial challenge, petitioner "must establish that no set of circumstances exists under which the [statute] would be valid"), with Sessions v. Dimaya , ––– U.S. ––––, –––– (III) n.3, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018) (rejecting assertion that a court may not invalidate a statute for vagueness simply because the statute is clear in at least some applications), and Johnson v. United States , 576 U.S. 591, 602 (II) (B), 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ("[A]lthough statements in some of our opinions could be read to suggest otherwise, our holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp." (emphasis in original)).

We need not answer whether Johnson and Dimaya rejected the proposition that a facial challenge requires a statute to be vague in all applications and therefore whether, as Smallwood contends, a statute is unconstitutionally vague on its face if the challenger can point to some hypothetical circumstance where the statute does not give fair warning that the conduct is covered. That is because neither of these cases overrules the principle that for a court to reach a facial challenge, a challenger must be able to successfully bring an as-applied challenge.⁴

Johnson and Dimaya do not expressly disavow the principle that outside the First Amendment context, a defendant whose conduct falls squarely within the confines of the statute cannot prevail on a facial challenge, and their reasoning and analysis support that the Supreme Court contemplated applying the statutory elements to the defendant's case in order to resolve vagueness challenges. See Dimaya , 138 S.Ct. at 1213-14 (III) (explaining that the criminal statute at issue in Johnson was unconstitutionally vague because the sentencing court was required to focus "on neither the ‘real-world facts’ nor the bare ‘statutory elements’ of an offense" but rather on the "kind of conduct the ‘ordinary case’ of a crime involves" (citation and punctuation omitted)); Johnson , 576 U.S. at 603-04 (II) (B), 135 S.Ct. 2551 (Court clarified that it did not doubt the constitutionality of laws that require application to "real-world conduct" of a particular defendant "on a particular occasion" (emphasis omitted)).

Other federal appellate courts have also read Johnson and Dimaya as not overruling the principle that a defendant must be able to prevail in his as-applied challenge in order to proceed with a facial challenge, and we find their reasoning persuasive. See United States v. Cook , 970 F.3d 866, 877 (II) (A) (7th Cir. 2020) (" Johnson did not alter the general rule that a defendant whose conduct is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge."); United States v. Bramer , 832 F.3d 908, 909-10 (8th Cir. 2016) (per curiam) ("Though [the defendant] need not prove that [the statute] is vague in all its applications, our case law still requires him to show that the statute is vague as applied to his particular conduct."); see also Daddario , 307 Ga. at 188 (2) (b), 835 S.E.2d 181 (concluding that vagueness challenges outside First Amendment context still must be applied first to defendant's case after decision in Johnson ).

Here, a person of ordinary intelligence would have fair warning that Smallwood's conduct, namely, entering a vehicle that is not one's own and taking another's possessions from within the vehicle, would be covered by OCGA § 16-8-18. See, e.g., Derrico , 306 Ga. at 636 (2) (b), 831 S.E.2d 794 (reckless conduct statute not vague as applied to defendant who was the aggressor in road rage incident and struck victim's car twice while in traffic); Sabel v. State , 248 Ga. 10, 13 (2), 282 S.E.2d 61 (1981) (statute that prohibits defacing government property was not vague as applied to defendant who spray-painted state-owned buildings and statues), overruled on other grounds, Rower v. State , 264 Ga. 323, 325 (5), 443 S.E.2d 839 (1994).

Further, OCGA § 16-8-18 does not authorize or encourage arbitrary and discriminatory enforcement. Smallwood argues that the statute can be arbitrarily enforced...