State Dakota v. Stark, 25586.

• Decision Date: 10 August 2011
• Docket Number: No. 25586.,25586.
• Citation: 2011 S.D. 46,802 N.W.2d 165
• Parties: STATE of South Dakota, Plaintiff and Appellee,v.Kenneth Dale STARK, Defendant and Appellant.
• Court: South Dakota Supreme Court

802 N.W.2d 165

2011 S.D. 46

STATE of South Dakota, Plaintiff and Appellee,

v.Kenneth Dale STARK, Defendant and Appellant.

No. 25586.

Supreme Court of South Dakota.

Considered on Briefs Feb. 16, 2011.Decided Aug. 10, 2011.

Marty J. Jackley, Attorney General, Craig M. Eichstadt, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.Matthew L. Olson, Minnehaha County Public, Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.SEVERSON, Justice.

[¶ 1.] Kenneth Dale Stark appeals his conviction on two counts of loitering in a community safety zone in violation of SDCL 22–24B–24. Stark appeals, raising four issues: (1) that the South Dakota statutes prohibiting sex offenders from loitering in a community safety zone are unconstitutional; (2) that the trial court erred by allowing the State to amend the Part II Information to include the correct location of his prior felony conviction; (3) that there was insufficient evidence to establish that his primary purpose for remaining in the community safety zone was to observe or contact minors; and (4) that the trial court abused its discretion by admitting evidence that an individual in a white mini-van registered to him was seen in a community safety zone the day before the charged conduct occurred. We affirm on all issues.

Background

[¶ 2.] In the afternoon and evening of April 22, 2009, a Sioux Falls mother noticed an individual in a white mini-van “watching or following ... children going to swimming lessons” in the area of the School for the Deaf and Terry Redlin Elementary School. She noted the vehicle's license plate number and reported this activity to law enforcement. When law enforcement checked the license plate number, they found that the vehicle was registered to Stark, a registered sex offender. South Dakota law prohibits registered sex offenders from loitering within 500 feet of any school, public park, public playground, or public school. SDCL 22–24B–24.

[¶ 3.] Officers Jason Holbeck and Cullen McClure were assigned to observe Stark the following evening. Stark left his place of employment near Fourth Avenue and Benson Road at approximately 6:10 p.m. He briefly stopped at a gas station at the corner of Benson Road and Cliff Avenue and then proceeded south on Cliff Avenue. At Third Street, Stark made a right turn and drove toward Whittier Park, which lies between Third and Fourth Streets and Cliff and Indiana Avenues. Officers Holbeck and McClure followed Stark as he drove around Whittier Park on Third Street, Indiana Avenue, and Fourth Street. Numerous children were present in the area at the time. After watching Stark circle the park for approximately twenty minutes, the officers lost contact with him. They looked for him for several minutes but eventually left the Whittier Park area.

[¶ 4.] While on break, the officers received a call from police dispatch that Stark was in the vicinity of Meldrum Park. The officers immediately left the McKennan Hospital cafeteria and arrived in the Meldrum Park area approximately ten minutes later. The officers saw Stark's van leaving the curb on Fifth Street. It appeared he had been parked at the northeast corner of the park. The officers followed Stark and eventually stopped the van.

[¶ 5.] When Officer McClure interviewed Stark, he smelled alcohol. The officers searched Stark's vehicle and found an open bottle of vodka under the driver's seat. Officer McClure cited Stark for driving under the influence, open container in a motor vehicle, and failure to maintain financial responsibility. A Minnehaha County grand jury later indicted Stark on two counts of loitering in a community safety zone, one count of driving under the influence, and one count of open container in a motor vehicle. The State also filed a Part II Information. Stark pleaded not guilty to all charges.¹

[¶ 6.] The case proceeded to trial in October 2009. At trial, Stark's version of events was quite different from that of Officers Holbeck and McClure. Stark testified that he left work at approximately 6:30 p.m. on April 23, 2009. After purchasing gas and a bottle of vodka at a gas station at the corner of Benson Road and Cliff Avenue, Stark testified that he proceeded south on Cliff Avenue, eventually making a right turn in the area of Whittier Park. He was headed to The Banquet, which serves free meals to those in need. When he arrived at The Banquet, he discovered it had stopped serving. He proceeded to his home at the Rushmore Motel at the intersection of East Tenth Street and Interstate 229. Stark testified that he took a shower, had a few drinks, and left for Franklin Foods Market at approximately 7:45 p.m. On the way, he pulled over briefly on Fifth Street to let an oncoming car through a particularly narrow part of the street and to allow a group of children to cross. Shortly thereafter, he was stopped and arrested.

[¶ 7.] At the close of the State's case and at the close of all the evidence, Stark moved for a judgment of acquittal. He argued that the South Dakota statutes prohibiting sex offenders from loitering in community safety zones are unconstitutional and that the State did not present sufficient evidence to establish that his primary purpose for remaining in a community safety zone was to observe or contact minors. The trial court denied Stark's motions. The jury returned a verdict of guilty on two counts of loitering in a community safety zone and one count of open container in a motor vehicle. Stark appeals.

Analysis and Decision

[¶ 8.] 1. Whether the South Dakota statutes prohibiting sex offenders from loitering in community safety zones are unconstitutional.

[¶ 9.] Stark argues that the South Dakota statutes prohibiting sex offenders from loitering in community safety zones are unconstitutional. SDCL 22–24B–24 provides that “[n]o person who is required to register as a sex offender ... may loiter within a community safety zone[.]” SDCL 22–24B–22 defines the key terms of SDCL 22–24B–24. “Loitering” is defined as “remain[ing] for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors[.]” SDCL 22–24B–22. A “community safety zone” is “the area that lies within five hundred feet from the facilities and grounds of any school, public park, public playground, or public pool, including the facilities and grounds itself [.]” Id.

[¶ 10.] Challenges to the constitutionality of a statute are reviewed de novo. State v. Martin, 2003 S.D. 153, ¶ 13, 674 N.W.2d 291, 296 (quoting State v. Allison, 2000 S.D. 21, ¶ 5, 607 N.W.2d 1, 2). This Court recognizes a strong presumption of constitutionality. Id. “To be invalidated a statute must be proved a breach of legislative power beyond a reasonable doubt.” Id. “Only when the unconstitutionality of a statute is plainly and unmistakably shown will we declare it repugnant to our [C]onstitution.” Id. And “[i]f a statute can be construed so as not to violate the [C]onstitution, that construction must be adopted.” Id. “Our function is not to decide if a legislative act is unwise, unsound, or unnecessary, but rather, to decide only whether it is unconstitutional.” Id.

Overbreadth

[¶ 11.] Stark first argues that the South Dakota statutes prohibiting sex offenders from loitering in community safety zones are facially unconstitutional. Normally, an individual does not have standing to facially challenge a statute unless he was engaged in constitutionally-protected expression. State v. Asmussen, 2003 S.D. 102, ¶ 3, 668 N.W.2d 725, 729. But the overbreadth doctrine provides an exception to this rule. Id. “[T]he overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when ‘judged in relation to the statute's plainly legitimate sweep.’ ” City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 1857, 144 L.Ed.2d 67 (1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612–15, 93 S.Ct. 2908, 2916–17, 37 L.Ed.2d 830 (1973)). The overbreadth doctrine allows a court to consider a statute's effect on third parties, regardless of its effect on the individual challenging the statute. Asmussen, 2003 S.D. 102, ¶ 3, 668 N.W.2d at 729. Courts created this “expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech[.]” Id. (quoting Virginia v. Hicks, 539 U.S. 113, 118–19, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148, 157 (2003)).

[¶ 12.] What Stark has framed as an overbreadth challenge is not an overbreadth challenge at all. He does not argue that the South Dakota statutes prohibiting sex offenders from loitering in community safety zones substantially infringe on the constitutionally-protected expression of third parties. Rather, he argues that the statutes unconstitutionally violated his freedom to loiter for innocent purposes. He contends that the United States Supreme Court recognized this right in Morales. We disagree. Only three members of the Morales Court acknowledged the constitutional right to loiter for innocent purposes. See Morales, 527 U.S. at 53, 119 S.Ct. at 1858. And even so, that plurality invalidated the Chicago loitering ordinance at issue because it was too vague, not because it infringed the right to loiter. Id. at 55, 119 S.Ct. at 1858. We therefore reject Stark's argument that the statutes at issue violated his “right to loiter,” and conclude that he has not properly placed the issue of facial overbreadth before this Court.

Vagueness

[¶ 13.] Stark also argues that the South Dakota statutes prohibiting sex offenders from loitering in community safety zones are unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment. “Vagueness may invalidate a criminal law for either of two independent reasons.” Id. at 56, 119 S.Ct. at 1859...