State v. Bryan, 73978

• Citation: 259 Kan. 143,910 P.2d 212
• Decision Date: 26 January 1996
• Docket Number: No. 73978,73978
• Parties: , 106 Ed. Law Rep. 905 STATE of Kansas, Appellant, v. David C. BRYAN, Appellee.
• Court: United States State Supreme Court of Kansas

Page 212

910 P.2d 212

259 Kan. 143, 106 Ed. Law Rep. 905

STATE of Kansas, Appellant, v. David C. BRYAN, Appellee.

No. 73978.

Supreme Court of Kansas.

Jan. 26, 1996.

Syllabus by the Court

1. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.

2. A criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. The determination of whether a criminal statute is unconstitutionally vague involves a second inquiry of whether the law adequately guards against arbitrary and discriminatory enforcement. When making either inquiry, the court should bear in mind that the standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.

3. K.S.A.1994 Supp. 21-3438 prohibits an intentional and malicious following or course of conduct when such following or course of conduct seriously alarms, annoys, or harasses the person. The statute defines "course of conduct" in relation to an objective standard. However, K.S.A.1994 Supp. 21-3438 contains no guidelines to determine when a following becomes alarming, annoying, or harassing. The statute does not define the terms alarming, annoying, or harassing in relation to an objective standard when a charge of stalking is based upon "following."

4. The word "following" as used in K.S.A.1994 Supp. 21-3438 is not sufficiently vague so as to render its meaning incomprehensible and, thus, its use does not make the statute unconstitutionally vague.

5. K.S.A.1994 Supp. 21-3438 fails to incorporate an objective standard with regard to a stalking offense based on following. Thus, the terms "annoys," "alarms" and "harasses" subject the defendant to the particular sensibilities of the individual victim. Different persons have different sensibilities and conduct which annoys, alarms, or harasses one person may not annoy or alarm another. Persons of common intelligence must necessarily guess at the statute's meaning and differ as to its application.

Jerry E. Little, Assistant District Attorney, argued the cause, and Gayle B. Larkin, Assistant District Attorney, Mark A. Knight, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellant.

Timothy G. Riling, of Riling, Burkhead, Fairchild & Nitcher, Chartered, Lawrence, argued the cause and was on the brief, for appellee.

DAVIS, Justice:

This appeal involves the question of the constitutionality of the 1994 version of the Kansas stalking law, K.S.A.1994 Supp. 21-3438. The district court held the statute unconstitutionally vague and dismissed a stalking charge against the defendant, David C. Bryan. For reasons set forth below, we agree that the statute is unconstitutionally vague and affirm.

The defendant was involved in a relationship with the alleged victim during the fall semester of 1994 at the University of Kansas. After the relationship ended, the alleged victim reported that the defendant made repeated contacts with her on the university campus, including contact in a university building. He was charged with one count of stalking in violation of K.S.A.1994 Supp. 21-3438. The defendant filed a motion to dismiss, arguing that the statute prohibiting stalking was unconstitutional in that it was vague, overly broad, and lacked requisite criminal intent.

Both parties filed supporting memorandums with the district court. Following argument, the court announced that the terms "annoys" and "harasses," as used in the statute, were unconstitutionally vague. The court filed an order of dismissal, finding that K.S.A.1994 Supp. 21-3438 was unconstitutionally vague "for the reasons as detailed in Defendant's memorandum filed with the Court." We have jurisdiction under the provisions of K.S.A.1994 Supp. 22-3601(b)(2).

Before we begin our consideration of the constitutionality of the above statute, we note that the Kansas Legislature passed the first stalking law in 1992 (L.1992, ch. 298, § 95), amended it substantially in 1994 (L.1994, ch 348, § 13), the version we now consider, and further amended it substantially in 1995 (L.1995, ch. 251, § 10). We do not consider the 1992 and 1995 versions but limit our consideration to the only issue before us, viz., the constitutionality of K.S.A.1994 Supp. 21-3438.

Standard of Review

The district court dismissed the charge of stalking against the defendant based upon its conclusion "after reviewing the Court file, the memorandums of law submitted by the attorneys for each party and ... oral arguments of the attorneys, ... that K.S.A. [1994 Supp.] 21-3438 is unconstitutionally vague." The question posed on appeal is one of law. Our review is de novo and unlimited. State v. Randall, 257 Kan. 482, 894 P.2d 196 (1995). Recently, this court in State v. Adams, 254 Kan. 436, 438-39, 866 P.2d 1017 (1994), enumerated the standards to be applied by a court when addressing the question of whether a law is unconstitutionally vague and indefinite:

" ' "The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.' " (Quoting Moody v. Board of Shawnee County Comm'rs, 237 Kan. 67, 74, 697 P.2d 1310 [1985].)

"In relation to the specific complaint of vagueness, this court stated:

'[T]he void-for-vagueness analysis is based upon a due process requirement that a criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983).' City of Wichita [v. Wallace], 246 Kan. at 258 [788 P.2d 270 (1990) ].

In State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983), the test was stated as

'whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.'

In City of Wichita, 246 Kan. at 259 , the court quoted State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977), for this trenchant comment: ' "At its heart the test for vagueness is a commonsense determination of fundamental fairness." '

"In addition to the inquiry whether the proscribed conduct is adequately defined, the court recognizes that a second inquiry is appropriate. That inquiry is ' "whether the ordinance adequately guards against arbitrary and discriminatory enforcement.' " Dunn, 233 Kan. at 418 (citing Cardarella v. City of Overland Park, 228 Kan. 698, 702, 620 P.2d 1122 [1980] ).' City of Wichita, 246 Kan. at 259 . When making either inquiry, the court should bear in mind that '[t]he standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.' 246 Kan. 253, Syl. p 3 .

"In Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L.Ed.2d 222, 92 S.Ct. 2294 [2298-99] (1972), the United States Supreme Court discussed the reasons why

'[v]ague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on a ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.' "

K.S.A.1994 Supp. 21-3438 provides:

"(a) Stalking is an intentional and malicious following or course of conduct directed at a specific person when such following or course of conduct seriously alarms, annoys or harasses the person, and which serves no legitimate purpose.

....

"(d) For the purposes of this section, 'course of conduct' means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonableperson to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. Constitutionally protected activity is not included within the meaning of 'course of conduct.' "

The defendant argues that the use of the terms "alarms," "annoys," and "harasses" in subsection (a) of the statute are subject to a wide range of different meanings dependent upon a potential victim's individual sensibilities. According to the defendant, the language used does not convey a sufficiently definite warning of the conduct proscribed, and persons of common intelligence must...