State v. Brown

• Decision Date: 03 August 2004
• Docket Number: No. SC 85582.,SC 85582.
• Citation: State v. Brown, 140 S.W.3d 51 (Mo. 2004)
• Parties: STATE of Missouri, Appellant, v. Leslie A. BROWN, Respondent.
• Court: Missouri Supreme Court

140 S.W.3d 51

STATE of Missouri, Appellant, v. Leslie A. BROWN, Respondent.

No. SC 85582.

Supreme Court of Missouri, En Banc.

August 3, 2004.

Appeal from the Circuit Court, Greene County, Calvin R. Holden, J Cynthia A. Rushefsky, T. Todd Myers, Darrell L. Moore, Springfield, MO, for Appellant.

Dee Wampler, III, Thomas D. Carver, Springfield, MO, for Respondent.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl C. Nield, Asst. Atty. Gen., Jefferson City, MO, for Amicus Curiae.

STEPHEN N. LIMBAUGH, JR., Judge.

The State of Missouri appeals the judgment of the circuit court, dismissing an information charging Leslie A. Brown with the crime of "failure to report child abuse" under sections 210.115 and 210.165, RSMo 2000, on the ground that the statutes are unconstitutionally vague. Because there is a challenge to the validity of those statutes, this Court has jurisdiction. MO. CONST. art. V. sec. 3. The judgment is reversed.

The charges arose from events surrounding the death of two-year-old Dominic James, who had been placed in foster care. According to the "Probable Cause Statement" accompanying the Information, on August 10, 2002, rescue personnel from the Willard, Missouri, Fire Department were summoned to the scene of an emergency where they found Dominic unconscious, not breathing, and "posturing," which is an abnormal rigidity of the body and a sign of brain damage. While performing emergency medical treatment, the rescue personnel discovered a series of "small, round, dime to quarter sized bruises running parallel along [Dominic's] spine," and they noticed a red bruise under his eye. This information was relayed to the flight crew that airlifted Dominic to Cox South Hospital in Springfield, and the flight crew then reported the information to Ms. Brown, a nurse employed at the hospital. Dominic recovered after treatment and was released from the hospital on August 14, 2002. Four days later, on August 18, Dominic was returned to the hospital where he died of "abusive head trauma."

The probable cause statement also alleged that during an interview on November 22 with the Cox Risk Management Office, Ms. Brown admitted that she had been advised of the bruises on Dominic's back and that she had taken notes on what the paramedics told her. In addition, she admitted that she did not document the bruises in her medical report or call the child abuse hotline even though she was aware of the legal obligation to report abuse. Her explanation for failing to do so was that the foster mother said that the bruises were the result of the child leaning back on a "booster seat."

In February of 2003, Ms. Brown was charged with failure to report child abuse to the Division of Family Services under section 210.115.1 and failure to report child abuse to a physician under section 210.120. Subsequently, Ms. Brown filed a motion to dismiss asserting that the charging statutes are unconstitutionally vague. At a hearing on the motion, several witnesses were called, including Dr. Bernard Kennetz, Jr., an emergency room physician, who testified that the words "reasonable cause to suspect" — the operative words of the statute — are subject to varying interpretations. Other "experts" opined that the words "reasonable cause to suspect" rendered the statute unconstitutional, although this testimony was offered over the state's objection that the constitutionality of the statute was clearly a matter for the court's sole determination. In contrast, Barbara Schaffitzel, a retired nursing supervisor, testified that she could follow and understand the nature of the statute "as a whole" and that nurses had developed a degree of "comfort" with the statute. Then, on September 9, 2003, the trial court entered its judgment, holding that sections 210.115 and 210.120 were unconstitutionally vague and dismissing the case. This appeal follows.

Preliminarily, Ms. Brown challenges appellate jurisdiction. First, she argues that the appeal cannot stand because it is interlocutory and, as a result, is governed by section 547.200.1 — the statute granting the state the right to pursue interlocutory appeals, but only in certain instances. She explains that because an appeal of a dismissal based on the unconstitutionality of a statute is not specifically listed in section 547.200.1, the state cannot appeal. She is mistaken. The state's appeal is not interlocutory; instead, there was an outright dismissal that resulted in a final judgment from which the state may appeal. Sec. 547.200.2. Second, Ms. Brown contends that the state's notice of appeal was untimely because it was filed outside of the five-day limit specified in section 547.200.4. Again, she is mistaken. Section 547.200.4 applies only to interlocutory appeals. The applicable rule, 30.01(d), specifies that a party has ten days to file notice of appeal after an order becomes final, and Brown concedes that notice was filed only six days after the trial court's judgment. Therefore, this Court has jurisdiction.

In its only point on appeal, the state argues that the trial court erred in holding that sections 210.115 and 210.120 are unconstitutionally vague in violation of the fifth and fourteenth amendments of the United States Constitution and article I, section 18, of the Missouri Constitution.

Section 210.115.1 provides that:

When any physician, ... nurse, hospital or clinic personnel that are engaged in the examination, care, treatment or research of persons ... or other person with responsibility for the care of children has reasonable cause to suspect that a child has been or may be subjected to abuse or neglect or observes a child being subjected to conditions or circumstances which would reasonably result in abuse or neglect, that person shall immediately report or cause a report to be made to the division [of family services] in accordance with the provisions of sections 210.109 to 210.183.

(emphasis added). Additionally, section 210.120 provides that persons required to report under section 210.115 "shall immediately notify the physician in charge or his designee...."

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955, 957 (Mo. banc 1999). The void for vagueness doctrine ensures that laws give fair and adequate notice of proscribed conduct and protect against arbitrary and discriminatory enforcement. State v. Entertainment Ventures I, Inc., 44 S.W.3d 383, 386 (Mo. banc 2001). The test for vagueness is "whether the language conveys to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Cocktail Fortune, 994 S.W.2d at 957. Nevertheless, "neither absolute certainty nor impossible standards of specificity are required in determining whether terms are impermissibly vague." Id.

In accordance with the aforementioned principles of law, this Court holds that sections 210.115 and 210.120 are not unconstitutionally vague. Though the trial court based its holding on the perceived vagueness of the phrase "reasonable cause to suspect," this Court holds that the phrase is readily understandable by ordinary persons. These are words of common understanding that speak for themselves and provide fair notice of the required conduct. Indeed, every other state appellate court interpreting the same or similar language in reporting statutes has reached the same conclusion. See, e.g., White v. State, 50 S.W.3d 31, 48 (Tex.App.2001) (holding mandatory reporting statute, which requires anyone who has "cause to believe" a child is being abused to report, is constitutional); State v. Grover, 437 N.W.2d 60, 63 (Minn.1989) (holding reporting statute, which requires certain people to report if he or she "knows or has reason to believe" a child is abused, constitutional); People v. Cavaiani, 172 Mich.App. 706, 432 N.W.2d 409, 413 (1988) (holding phrase "reasonable cause to suspect" in mandatory reporting statute constitutional); State v. Hurd, 400 N.W.2d 42, 42-46 (Wis.App.1986) (holding mandatory reporting statute using the phrase "reasonable cause to suspect" constitutional). In fact, the phrase "reasonable cause to suspect" or close variations thereof have been part of Missouri law for more than a century. See, e.g., Johnson v. Wright, 478 S.W.2d 277, 279 (Mo.1972) (discussing Missouri's liquor control law, which requires a licensee who has "reasonable cause to believe" a buyer will resell the liquor to refrain from selling to that buyer); State v. Bushong, 246 S.W. 919, 920 (Mo.1922) (discussing Missouri's self-defense instruction, which asked the jury to determine if the defendant had a "reasonable cause" to believe he was going to be harmed); Fugate v. Millar, 109 Mo. 281, 19 S.W. 71 (Mo.1892) (elaborating on probable cause standard, which is a "reasonable ground of suspicion"). In addition, for many years the variant phrase "reasonable suspicion" has been part of the Supreme Court's vocabulary in search and seizure cases, and the term is applied to the work of law enforcement officers on a daily basis. See, e.g., Terry v. Ohio, 392 U.S. 1, 37, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As the state aptly notes, "`reasonable suspicion' ... is not unlike ... `reasonable cause to suspect'" as "both depend on the `reasonable man' and his/her ability to make sensible determinations based on the facts and circumstances which confront them in a variety of critical situations."

Finally, it must be emphasized that the vagueness challenge is applicable only to the facts at hand, and it is inappropriate to project the challenge to factual situations not presented here in which the language used, as applied, might indeed be vague and confusing. Cocktail Fortune, 994 S.W.2d at 958. Nevertheless, Ms. Brown attempts to avoid this rule by postulating several hypothetical situations: "Does...