State v. Cantrell, 84-052

• Decision Date: 10 February 1989
• Docket Number: No. 84-052,84-052
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Richard CANTRELL.

Page 639

558 A.2d 639

151 Vt. 130

STATE of Vermont v. Richard CANTRELL.

No. 84-052.

Supreme Court of Vermont.

Feb. 10, 1989.

Jeffrey L. Amestoy, Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Jim Harris, Law Clerk (On the Brief), Montpelier, for plaintiff-appellee.

David W. Curtis, Defender Gen., and Henry Hinton and William A. Nelson, Appellate Defenders, Montpelier, for defendant-appellant.

Jean A. Swantko, Island Pond, for amicus curiae Church at Island Pond.

Before ALLEN, C.J., PECK, J., BARNEY, C.J. (Ret.), MARTIN, Supr.J. and COSTELLO, District Judge (Ret.), Specially Assigned.

PECK, Justice.

Defendant, Richard Cantrell, was convicted after trial by jury of practicing medicine without a license in violation of 26 V.S.A. §§ 1311 and 1314. He raises four issues on appeal: (1) that the statute is impermissibly vague; (2) that the trial court improperly failed to instruct the jury on defendant's claim of religious exemption from prosecution; (3) that the information under which he was convicted failed to charge an offense; and (4) the jury was improperly permitted to consider hearsay evidence of other uncharged bad acts. We affirm.

Defendant is a member of the Northeast Kingdom Church in Island Pond, Vermont. His conviction of practicing medicine without a license was based on two incidents that occurred in June and July of 1982 at the religious community's health clinic. On the first occasion, defendant administered a local anesthetic and then surgically removed a wart from a woman's thumb. On the second occasion, he attended a young man who had cut his heel by administering a pain killer and then suturing the wound which required in excess of thirty stitches.

At the time of the actions in question defendant was not licensed to practice medicine. He had received some medical training and had been certified as an emergency medical technician in 1978 in the State of Georgia. He was not, however, certified to perform emergency medicine in the State of Vermont.

Defendant argues that his medical work was motivated by his religious convictions. He testified that his actions were based on "a command from the Lord; that we should be prepared to take care of people; to care for people; in every aspect of life that we can help people, that we should do that...." No evidence was provided, however, that his religion prevented him from obtaining a license to practice medicine.

I.

The statute under which defendant was convicted provides, in pertinent part: "A person who, not being licensed, ... practices medicine or surgery as defined in section 1311 of this title, ... shall be imprisoned not more than three months or fined not more than $200.00 nor less than $50.00, or both." 26 V.S.A. § 1314(a). The relevant part of 26 V.S.A. § 1311 provides the following defintion: "A person who ... shall ... give ... for the use of any person, any drug, medicine or other agency or application for the treatment, cure or relief of any bodily injury, infirmity or disease ... shall be deemed a physician, or practitioner of medicine or surgery...." 26 V.S.A. § 1311(1).

Before trial, defendant moved to dismiss the charges against him on the grounds that the provisions of the statute were "too vague to adequately inform [him] of the proscribed activity and therefore [were] violative of due process and the 14th Amendment of the Constitution of the United States." He argued that the definition of practice of medicine is unduly broad such that a person of ordinary intelligence cannot know "where medical practice begins and good faith attempts to administer aid and comfort to a friend or relative ends."

The trial judge denied defendant's motion, finding that defendant's conduct was clearly prohibited by the language of the statute. The court reasoned that, in determining whether the statute conveyed sufficient warning as to the conduct proscribed, it " 'must of necessity be examined in the light of the conduct with which a defendant is charged.' " State v. Bartlett, 128 Vt. 618, 622, 270 A.2d 168, 170 (1970) (quoting United States v. National Dairy Products Corp., 372 U.S. 29, 33, 83 S.Ct. 594, 598, 9 L.Ed.2d 561 (1963)). Consequently, it concluded that the fact that the statute might be unconstitutionally vague as applied to the conduct of others is irrelevant.

On appeal, defendant argues that the judge erred by using this standard to decide his vagueness challenge. He contends that because the statute implicates speech, which is constitutionally protected by the First Amendment to the United States Constitution, he has standing to challenge the constitutionality of the enactment on its face, even if it is not vague as applied to his conduct.

The doctrine of void-for-vagueness, generally stated, requires that penal statutes define a criminal offense with sufficient certainty so as to inform a person of ordinary intelligence of conduct which is proscribed, and such that arbitrary and discriminatory enforcement is not encouraged. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); State v. Purvis, 146 Vt. 441, 442, 505 A.2d 1205, 1206-07 (1985); State v. Roy, 140 Vt. 219, 229, 436 A.2d 1090, 1095 (1981). In this case, the defendant's conduct, surgically removing a wart, applying sutures to a wound and in both cases injecting a local anesthetic, clearly falls within the ambit of 26 V.S.A. § 1311 such that a person of ordinary intelligence would be informed that such conduct constituted the practice of medicine or surgery. Accordingly, as applied to this defendant, the penal statutes in question are not unduly vague. See Purvis, 146 Vt. at 442-43, 505 A.2d at 1207.

Ordinarily, a party whose particular conduct is adequately described by a criminal statute may not challenge that statute on the ground that "the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit," Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974), or because it "may conceivably be applied unconstitutionally to others in situations not before the Court." New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 3360, 73 L.Ed.2d 1113 (1982). See Purvis, 146 Vt. at 442, 505 A.2d at 1206. However, this Court and the United States Supreme Court recognize that this general rule for standing does not apply when a statute implicating speech or expression is challenged on vagueness grounds. See, e.g., Kolender v. Lawson, 461 U.S. at 359, 103 S.Ct. at 1859; State v. Purvis, 146 Vt. at 443, 505 A.2d at 1207.

In Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, the United States Supreme Court noted that "we permit a facial challenge if a law reaches 'a substantial amount of constitutionally protected conduct.' " Id. at 359 n. 8, 103 S.Ct. at 1859 n. 8 (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)). This Court recently stated that " '[v]agueness challenges to statutes not involving First Amendment freedoms must be examined in light of the facts' presented....," State v. Purvis, 146 Vt. at 443, 505 A.2d at 1207 (quoting State v. Roy, 140 Vt. at 229 436 A.2d at 1095), implicitly exempting from the normal standing rule challenges to statutes involving First Amendment rights. In addition, the United States Supreme Court has noted that it permits facial challenges on overbreadth grounds to laws involving a substantial amount of conduct protected by the First Amendment, and "we have traditionally viewed vagueness and overbreadth as logically related and similar doctrines." Kolender, 461 U.S. at 359 n. 8, 103 S.Ct. at 1859 n. 8 (citing Keyishian v. Board of Regents, 385 U.S. 589, 609, 87 S.Ct. 675, 687, 17 L.Ed.2d 629 (1967); NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 110-13 (1960)). We turn, then, to the statute in question to determine whether it reaches "a substantial amount of ... protected conduct." Kolender, 461 U.S. at 359 n. 8, 103 S.Ct. at 1859 n. 8 (citation omitted).

26 V.S.A. § 1311 defines a practitioner of medicine as one who, amongst other things, advertises or holds himself out

to the public as one skilled in the art of curing or alleviating disease, bodily injuries or physical or nervous ailments, or shall prescribe, direct, recommend, or advise, give or sell for the use of any person, any drug, medicine or other agency or application for the treatment, cure or relief of any bodily injury, infirmity or disease, or who follows the occupation of treating diseases by any system or method....

Where possible, a statute must be construed to avoid constitutional infirmities. See, e.g., New York v. Ferber, 458 U.S. at 769 n. 24, 102 S.Ct. at 3361 n. 24. When deciding whether a statute reaches a substantial amount of constitutionally protected conduct, it must be "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973); see Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. at 1858 n. 8. We believe that such a construction is appropriate here, and that it preserves the statute from constitutional invalidation.

26 V.S.A. § 1314 makes illegal the practice of medicine or surgery, as defined by § 1311, absent licensure. Section 1311, while admittedly inartfully drafted, defines the practice of medicine or surgery to cover a large variety of activities which primarily involves conduct related to the treatment or cure of injuries, diseases and infirmities, and only incidentally implicates speech. Cf. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975) (Court must not look at single sentence but must look to the provisions of the whole law); State v. Trucott, 145 Vt. 274, 282, 487 A.2d 149, 154 (1984) (in construing statute, Court...