State v. Ahart

• Decision Date: 20 September 2013
• Docket Number: No. 108,086.,108,086.
• Citation: 309 P.3d 9
• Parties: STATE of Kansas, Appellee, v. Norvelle L. AHART, Appellant.
• Court: Kansas Court of Appeals

309 P.3d 9

STATE of Kansas, Appellee,

v.Norvelle L. AHART, Appellant.

No. 108,086.

Court of Appeals of Kansas.

Sept. 20, 2013.

Appeal from Johnson District Court; Stephen R. Tatum Judge.

Thomas J. Bath and Tricia A. Bath, of Bath & Edmonds, P.A., of Overland Park, for appellant.

Clayton J. Perkins, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., PIERRON and LEBEN, JJ.

MEMORANDUM OPINION

LEBEN, J.

Norvelle Ahart was convicted of felony mistreatment of a dependent adult after serving as caretaker for an elderly man and allegedly taking unfair advantage of his financial resources. She now appeals, arguing that the statute under which she was charged is unconstitutionally vague because of the undefined terms “unfair advantage” and “undue influence.”

Ahart correctly notes that the law must give fair warning to persons of common intelligence of the prohibited conduct. But it's also true that a person whose acts are clearly covered by the statute cannot avoid prosecution by arguing that there are other, marginal cases where the law's application might be in doubt.

Here, the evidence showed that Ahart took unfair advantage of a dependent adult in many ways over a period of years. A person of ordinary intelligence would have understood that Ahart's conduct violated the law. We therefore affirm the district court's judgment.

Factual and Procedural Background

Ahart was charged with three counts of mistreatment of a dependent adult under K.S.A. 21–3437. The complaint alleged that Ahart took “unfair advantage” of Burks Alden Smith's resources through “undue influence,” among other means, from October 2000 to February 2010.

Before trial, Ahart filed a motion to dismiss the charges as unconstitutionally vague because K.S.A. 21–3437 did not define the terms “unfair advantage” and “undue influence.” At a hearing, the State responded that “unfair advantage” is a common, easily understood term and that “undue influence” is commonly used in contract law. The district court conducted a two-step vagueness analysis, concluding that the statute was not unconstitutionally vague:

“I think that the reading of the charges, by way of the totality of the allegations, puts those terms in perspective and as to the common sense meaning of those terms to a point where they are not vague and to the point where they do reasonably advise a person who might be subject to these kinds of charges of the meaning, common sense meaning of those terms.

“The Court cannot find that they are vague to the point of violating due process or fundamental fairness in this case. And that persons of common intelligence would not have to guess at their meaning.”

Accordingly, the court denied Ahart's motion. Ahart renewed her motion at trial, and it was again denied.

To briefly summarize the facts presented at trial, Smith hired Ahart as a caretaker in 1994. The State presented evidence that, over the next 16 years until Smith's death, Ahart slowly took more and more control over Smith and his wife's financial resources. The State demonstrated that under Ahart's care, Smith and his wife transferred power of attorney, altered their wills, hired Ahart's friends and relatives to work in the household, let Ahart determine the rate of pay for the household staff, and allowed Ahart to write checks from Smith's account. The State also presented evidence that Ahart manipulated Smith's fear and confusion to alienate him from his family. We will discuss some of the facts in more detail as they apply to the charges against Ahart.

Ahart was convicted by a jury of two counts of felony mistreatment of a dependent adult; she was acquitted on the third count for a misdemeanor. She received a total underlying prison sentence of 24 months with probation granted after 30 days, Ahart timely appealed.

Analysis

Ahart's only challenge on appeal is to the constitutionality of the statute underlying her conviction. Ahart claims that the district court erred by denying her motion to dismiss the charges for unconstitutional vagueness.

This court has unlimited review over the constitutionality of a criminal statute. State v. Richardson, 289 Kan. 118, 124, 209 P .3d 696 (2009). Generally, a statute is “presumed constitutional and all doubts must be resolved in favor of its validity.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629–30, 176 P.3d 938 (2008). Appellate courts should interpret a statute in a way that supports its constitutionality, if this interpretation can be achieved without distorting the legislature's original intention for enacting the statute. Richardson, 289 Kan. at 124.

Before discussing the statute at issue, we must consider the tests applied to determine whether a statute is unconstitutionally vague. As the district court recognized, courts use a two-part test. First, the statute should give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. Dissmeyer v. State, 292 Kan. 37, 39, 249 P.3d 444 (2011). Second, the statute should provide explicit standards for its enforcement so as to prevent arbitrary and discriminatory enforcement. State v. Rupnick, 280 Kan. 720, 737, 125 P.3d 541 (2005); State v. Black 1999 Lexus ES300, 45 Kan.App.2d 168, 176, 244 P.3d 1274 (2011). A vague statute is problematic in that it impermissibly delegates basic policy matters to police officers, judges, and juries for resolution on a case-by-case basis. Rupnick, 280 Kan. at 737. The test for vagueness is often described as a common-sense determination about fundamental fairness. Richardson, 289 Kan. at 124. “And “ ‘[a] statute will not be declared void for vagueness when it employs words commonly used, previously judicially defined, or having a settled meaning in law.” ‘ “ Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 334, 291 P.3d 1056 (2013) (quoting Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 958, 811 P.2d 876 [1991] ).

Additionally, a person “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, 41 L.Ed.2d 439 (1974); Hearn v. City of Overland Park, 244 Kan. 638, 639, 772 P .2d 758,cert. denied493 U.S. 976 (1989). Although there may be marginal cases in which it is difficult to determine whether the particular conduct was prohibited, that is not sufficient reason to hold the language too ambiguous to define a criminal offense. Hearn, 244 Kan. at 640–41.

With these background considerations in mind, let's turn to the statute at issue here. The crime of mistreatment of a dependent adult covers a variety of conduct. See K.S.A. 21–3437 (now codified at K.S.A.2012 Supp. 21–5417). At the time of Ahart's offense, K.S.A. 21–3437(a)(2) defined mistreatment of a dependent adult as “knowingly and intentionally ... taking unfair advantage of a dependent adult's ... financial resources for another individual's personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense by a caretaker or another person.” (Emphasis added.) There is no dispute in this case that Smith was a dependent adult within the meaning of the statute. See K.S.A. 21–3437(c) (defining “dependent adult”).

Ahart's argument is that the meaning of “undue influence” and “unfair advantage” isn't sufficiently clear. Neither term is defined in the statute, and Ahart contends that persons of common intelligence would have to guess at the terms' meanings and that the statute allows for arbitrary enforcement.

The gist of the offense charged here lies in taking the financial resources of a dependent adult by applying some form of pressure on the dependent adult, causing him or her to turn over those assets. See State v. Maxon, 32 Kan.App.2d 67, 73–74, 79 P.3d 202 (2003), rev. denied 277 Kan. 926 (2004). The types of pressure are catalogued in the statute and entail conduct aimed at intimidating, deceiving, or otherwise influencing the victim to give assets to someone else. For instance, in Maxon, the defendants systematically exploited—through contrived goodwill and familial behavior rather than threatening conduct—a widow suffering from bipolar disorder and hypomania in order to obtain transfers of money when she was emotionally vulnerable. 32 Kan.App.2d at 73. The situation in Ahart's case is similar to that in Maxon, and this court confirmed the convictions for mistreatment of a dependant adult in that case.

Although unfair advantage is not defined, the statute itself provides several examples of such unfair advantage. K.S.A. 21–3437(a)(2) states that unfair advantage may be taken “by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense.” Thus, the statute itself would alert a person of ordinary intelligence to the prohibited conduct—whether an advantage is unfair depends on the means by which it is attained. It would be unreasonable to interpret the statute to mean that a person could legally take “fair advantage” of a person's resources through such means as undue influence, coercion, harassment, duress, deception, false representation, or false pretenses.

Notably, in Ahart's case, the district court did not list all of the potential means listed in the statute by which a person could take unfair advantage of a dependent adult. The district court omitted the terms coercion, harassment, duress, and false representation from the jury instructions, instructing only on undue influence, deception, and false pretense.

Essentially, then, the statute itself defines “unfair advantage” by listing several forms of conduct that meet that description. So Ahart's better argument lies in her challenge to “undue influence,” one of the means by which a person could take “unfair advantage” of the dependent person.

“Undue influence” is a...