Sorenson v. State

• Decision Date: 27 December 1979
• Docket Number: No. 5118,5118
• Citation: 604 P.2d 1031
• Parties: William SORENSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1031

604 P.2d 1031

William SORENSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5118.

Supreme Court of Wyoming.

Dec. 27, 1979.

W. Keith Goody, Asst. Public Defender, Jackson, appeared on the brief and in oral argument on behalf of appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division and Richard Scott Rideout, Asst. Atty. Gen., appeared on the brief, and Mr. Rideout appeared in oral argument on behalf of appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

This is an appeal by appellant-defendant from conviction, judgment and sentence wherein he was found guilty of knowingly taking immodest, immoral and indecent liberties with a child in violation of § 14-2-112, W.S.1977 (recodified to § 14-3-105, W.S.1977), and was sentenced to one to four years imprisonment. In addition, the trial court stated that " * * * it is the intention of the Court that terms of parole if and when given be such that the Defendant be required to undergo psychiatric treatment at appropriate facilities and that such conditions (sic) be mandatory under the terms of probation."

Appellant presents two issues in his appeal: (1) whether or not § 14-3-105, W.S.1977, under which he was convicted, is unconstitutionally vague; and (2) whether or not the court erred in requiring appellant to undergo psychiatric treatment as a condition of parole.

We do not find the statute to be unconstitutional, but we find that the trial court lacked power to impose a parole condition. Accordingly, we affirm the conviction and remand the matter for resentence.

Appellant was performing services as an electrician on the home of the parents of a twelve-year-old girl. He asked her if she would like to see a baby robin. While she was observing it through a rear window, he began tickling her. Then he began to rub her breasts on the outside of her clothing; he then began unbuttoning her shirt and tried to put his hand inside, but she blocked his arm. He asked if she would let him do it again sometime, and he said, "you won't tell anybody, will you?" Appellant and the girl were alone in the house at the time.

After appellant entered pleas of not guilty and not guilty by reason of mental illness, the court ordered that a mental and physical examination be conducted of appellant at the Wyoming State Hospital. Appellant notes that the examination resulted in a finding that appellant was "sane."

CONSTITUTIONALITY OF § 14-3-105, W.S.1977

There is a strong presumption in favor of the constitutionality of a statute. Budd v. Bishop, Wyo., 543 P.2d 368 (1975).

As reflected in the following quotations, vagueness may make a statute unconstitutional, ¹ and the efforts of the courts to set the standard by which such can be gauged is indicated in the emphasized portions of the following:

"1. The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well-established element of the guarantee of due process of law.

"2. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.

"3. All are entitled to be informed as to what the state commands or forbids.

"4. 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.

"5. The constitutional guarantee of equal rights under the law (see Art. 1, §§ 2 and 3, Wyoming Constitution) will not tolerate a criminal law so lacking in definition that each defendant is left to the vagaries of individual judges and juries." (Emphasis supplied.) State v. Gallegos, Wyo., 384 P.2d 967, 968 (1963); and Sanchez v. State, Wyo., 567 P.2d 270, 274 (1977).

"It is settled that, as a matter of due process, a criminal statute that 'fails to Give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954), or is so indefinite that 'It encourages arbitrary and erratic arrests and convictions,' Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972), is void for vagueness. See generally Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). * * * " (Emphasis supplied.) Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979).

" * * * (T)his prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for '(i)n most English words and phrases there lurk uncertainties.' Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. Cf. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913); United States v. National Dairy Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). All the Due Process Clause requires is that the law give Sufficient warning that men may conduct themselves so as to avoid that which is forbidden." (Emphasis supplied and footnote omitted.) Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975).

" * * * This Court * * * has consistently held that lack of precision is not itself offensive to the requirements of due process. ' * * * (T)he Constitution does not require impossible standards'; all that is required is that the language 'Conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * * .' United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. * * * " (Emphasis supplied.) Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957).

We turn, then, to § 14-3-105, W.S.1977, to determine if it sets forth the acts or conduct required or forbidden with reasonable certainty and in a fashion whereby a person of ordinary intelligence is given fair notice that his contemplated conduct is forbidden. " * * * (V)agueness challenges to statutes which do not involve First Amendment freedoms ² must be examined in the light of the facts of the case at hand. * * * " United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975); United States v. National Dairy Products Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963).

Section 14-3-105, W.S.1977, provides:

"Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony, and upon conviction shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both."

Appellant contends the statute to be unconstitutionally vague because:

"Immoral, immodest, and indecent are words of general import and broad application. They are not self-defining and their best use is found in the subjective. Yet it is this proneness to subjective definition that exposes this law to objection. It is incumbent upon the legislature to provide the public with laws sufficiently defined so as not to deceive the common mind. * * * "

If the three words "immoral, immodest and indecent," standing alone, were our only consideration, we might agree with appellant. Their meanings to each of several persons of ordinary intelligence may differ to a point wherein it could not be said that the conduct required or forbidden is set forth with reasonable certainty. On the other hand, strict application of the definitions of the words ³ could lead to the conclusion that a person of ordinary intelligence would know that conduct such as fondling the breast of a twelve-year-old child is proscribed by them and is clearly prohibited by the "standard of morality" of this society. See Sissom v. State, 210 Tenn. 556, 360 S.W.2d 227 (1962); State v. Minns, 80 N.M. 269, 454 P.2d 355 (1969).

In any event, we need not consider the three words on their own connotation as suggested by appellant. They are accompanied in the statute by the words "liberties" and "child" which narrow down and designate with reasonable certainty the acts and conduct required or forbidden. "Liberties" are such as common sense of society would regard as indecent and improper. People v. Healy, 265 Mich. 317, 251 N.W. 393 (1933). "Indecent liberties" is self- defining. State v. Stuhr, 1 Wash.2d 521, 96 P.2d 479 (1939); State v. Holte, N.D., 87 N.W.2d 47 (1957); State v. Hoffman, 240 Wis. 142, 2 N.W.2d 707 (1942); State v. Kunz, 90 Minn. 526, 97 N.W. 131 (1903); State v. MacMillan, 46 Utah 19, 145 P. 833 (1915). "Indecent liberties" and "indecent assault" are convertible terms. State v. MacMillan, supra; State v. West, 39 Minn. 321, 40 N.W. 249 (1888); State v. Waid, 92 Utah 297, 67 P.2d 647 (1937); State v. Flath, 59 N.D. 121, 228 N.W. 847 (1929); State v. Hoffman, supra.

Accordingly, the statute is not unconstitutionally vague.

Beyond that, a person of ordinary intelligence can weigh his contemplated conduct against a prohibition of taking immodest, immoral or indecent liberties or assault against a child and know whether or not such contemplated conduct is proscribed by it. Appellant's inquiry to the twelve-year-old girl: "you won't tell anybody, will you?" reflects recognition that his act of rubbing her breasts on the outside of her clothes and his attempt to unbutton her shirt were a taking of "immodest, immoral or indecent liberties...