State v. Castaneda

• Citation: 245 P.3d 550
• Decision Date: 22 December 2010
• Docket Number: No. 52911.,52911.
• Parties: The STATE of Nevada, Appellant, v. Marty Edward CASTANEDA, Respondent.
• Court: Supreme Court of Nevada

245 P.3d 550

The STATE of Nevada, Appellant,
v.
Marty Edward CASTANEDA, Respondent.

No. 52911.

Supreme Court of Nevada.

Nov. 24, 2010.
Rehearing Denied Dec. 22, 2010.

245 P.3d 552

Catherine Cortez Masto, Attorney General, Carson City; David Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Andrea M. Rachiele, Deputy District Attorney, Clark County, for Appellant.

Philip J. Kohn, Public Defender, and Amy A. Porray, Deputy Public Defender, Clark County, for Respondent.

Before the Court En Banc.

OPINION

By the Court, PICKERING, J.:

Respondent Marty Edward Castaneda is accused of intentionally and repeatedly exposing his genitals and buttocks while standing on the sidewalk in front of the county jail near Lewis Avenue and First Street in Las Vegas. A witness sitting in a nearby car observed his exhibitions and called the police. Castaneda was arrested and charged with indecent exposure under NRS 201.220. He did not deny the allegations but instead asserted a constitutional challenge to the statute, arguing that it is facially vague and overbroad. The district court agreed with Castaneda and dismissed the indecent exposure charges.

We reverse and remand. NRS 201.220(1) provides that "[a] person who makes any open and indecent or obscene exposure of his or her person, or of the person of another, is guilty" of a gross misdemeanor for a first offense. While Castaneda is correct that NRS 201.220 does not define what it means to expose one's "person" in an "open and indecent or obscene" manner, the lack of internal definitions does not invalidate the statute.

Indecent exposure was a public offense at common law. For such an offense, NRS 193.050(3) incorporates the common law definitions. The common law, as well as the case law concerning NRS 201.220, leaves no doubt that a person who intentionally exposes his genitals on a public street corner commits indecent exposure. Thus, NRS 201.220 applies to Castaneda's conduct, and he may not avoid liability by theorizing about the statute's hypothetical vagueness as to others.

Given the Legislature's use of the common law to define NRS 201.220's terms, we read NRS 201.220 as limited to the common law prohibition against open and indecent or obscene exposure of one's genitals or anus. So limited, NRS 201.220 does not catch a substantial amount of constitutionally protected expressive conduct within its sweep. See Barnes v. Glen Theatre. Inc., 501 U.S. 560, 567-68, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality). Thus, Castaneda's overbreadth challenge also fails.

I.

Although our review is de novo, we commence it under the presumption "that statutes are constitutional"; the party challenging a statute has "the burden of making 'a clear showing of invalidity.' " Berry v. State, 125 Nev. ----, ----, 212 P.3d 1085, 1095 (2009) (quoting Silvar v. Eighth Judicial Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006)). Further, we adhere to the precedent that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895); accord Virginia and Truckee R.R. Co. v. Henry, 8 Nev. 165, 174 (1873) ("It requires neither argument nor reference to authorities to show that when the language of a statute admits of two constructions, one of which would render it constitutional and valid and the other unconstitutional and void, that construction should be

245 P.3d 553

adopted which will save the statute."). This canon of constitutional avoidance dates back to Murray v. The Charming Betsy, 2 Cranch 64, 6 U.S. 64, 2 L.Ed. 208 (1804), and remains in full force today. Skilling v. United States, 561 U.S. ----, & n. 40, 130 S.Ct. 2896, 2929-30 & n. 40, 177 L.Ed.2d 619 (2010).

II.

A.

The district court invalidated NRS 201.220 as unconstitutionally vague. "Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause[s] of the Fifth" and Fourteenth Amendments to the United States Constitution. United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); Silvar, 122 Nev. at 293, 129 P.3d at 684-85. "Vagueness may invalidate a criminal law for either of two independent reasons," Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999):(1) if it "fails to provide a person of ordinary intelligence fair notice of what is prohibited"; or (2) if it "is so standardless that it authorizes or encourages seriously discriminatory enforcement." Holder v. Humanitarian Law Project, 561 U.S. ----, ----, 130 S.Ct. 2705, 2718, 177 L.Ed.2d 355 (2010) (quoting Williams, 553 U.S. at 304, 128 S.Ct. 1830).¹ See also Flamingo Paradise Gaming v. Att'y General, 125 Nev. 39, ----, 217 P.3d 546, 551-54 (2009) (discussing how these tests apply in the civil and criminal contexts).

"[M]athematical precision is not possible in drafting statutory language." City of Las Vegas v. Dist. Ct., 118 Nev. at 864, 59 P.3d at 481. Nonetheless, "the law must, at a minimum, delineate the boundaries of unlawful conduct. Some specific conduct must be deemed unlawful so individuals will know what is permissible behavior and what is not." Id. A law that leaves the determination of whether conduct is criminal to a purely subjective determination, such as what might "annoy" a minor or "manifest" an illegal "purpose," is " 'vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.' " Id. at 865, 59 P.3d at 482 (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971)) (invalidating a law making it a misdemeanor to "annoy" a minor); Silvar, 122 Nev. at 294, 129 P.3d at 685 (invalidating law prohibiting loitering that "manifest[s] the purpose of inducing ... prostitution"). See Holder, 561 U.S. at ----, 130 S.Ct. at 2720 ("We have in the past 'struck down statutes that tied criminal culpability to whether the defendant's conduct was "annoying" or "indecent"—wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings.' " (quoting Williams, 553 U.S. at 306, 128 S.Ct. 1830)).

But constitutional vagueness analysis does not treat statutory text as a closed universe. Enough clarity to defeat a vagueness challenge " 'may be supplied by judicial gloss on an otherwise uncertain statute,' "

245 P.3d 554

Skilling, 561 U.S. at ----, 130 S.Ct. at 2933 (quoting United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)), by giving a statute's words their "well-settled and ordinarily understood meaning," Berry, 125 Nev. at, 212 P.3d at 1085 (citing Nelson v. State, 123 Nev. 534, 540-41, 170 P.3d 517, 522 (2007)), and by "look[ing] to the common law definitions of the related term or offense," id. (citing Ranson v. State, 99 Nev. 766, 767, 670 P.2d 574, 575 (1983)).

As the discussion that follows will show, we conclude that, under NRS 193.050, NRS 201.220(1) must be read as incorporating the common law prohibition against intentional exposure of the genitals or anus under circumstances that make such exposure open and indecent or obscene. Thus limited, NRS 201.220(1) properly applies to Castaneda and is not unconstitutionally vague.

B.

The challenged statute states: "A person who makes any open and indecent or obscene exposure of his or her person, or of the person of another, is guilty: (a) [f]or the first offense, of a gross misdemeanor [and] (b) [f]or any subsequent offense, of a category D felony...." NRS 201.220(1). Castaneda has a prior conviction, so he faces a felony charge.

Castaneda's vagueness argument focuses on the statute's euphemistic reference to "his or her person." As he reads the word "person," most of us expose our "person" every day. He faults the statute for not specifying the parts of the body whose exposure qualifies as "indecent or obscene" and argues that the statute, as written, leaves too much to guesswork to satisfy due process.

The State responds by pointing to the settled common law and commonsense understanding that, in a civilized society, people do not intentionally and publicly display their genitals. Going further, the State argues that NRS 201.220(1)'s prohibition of "any open and indecent or obscene exposure of the person" forbids exhibition of those parts of the body "which instinctive modesty, human decency or natural self respect requires shall be customarily kept covered in the presence of others." An exposure can be "indecent" without being "obscene." Quiriconi v. State, 95 Nev. 195, 591 P.2d 1133 (1979). Unlike obscenity, see NRS 201.235, indecency does not convey prurience; rather, "the normal definition of 'indecent' merely refers to nonconformance with accepted standards of morality." FCC v. Pacifica Foundation, 438 U.S. 726, 740, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). The State argues that NRS 201.220(1) prohibits a range of exposures, from genitals to buttocks to women's breasts, depending on community tolerance and prevailing standards of morality.

Both sides miss the point that history provides. In the indecent exposure context, the common law used "person" as a euphemism for penis, making it fair to read NRS 201.220(1) as prohibiting open and indecent or obscene exposure of one's genitals. However, neither the statute's words nor its common law antecedents support the State's view that NRS 201.220(1) penalizes exposures just because they offend local sensibilities or standards of morality. Leaving it to the word "indecent" to conclusively define the conduct that NRS 201.220(1) outlaws, rather than adhering to the common law equation of "person" with "genitals," goes beyond settled common law doctrine and the fair intendment of the words in NRS 201.220(1) and ventures into vagueness territory.

"By statute in virtually every jurisdiction, indecent exposure is...