State v. Coleman

• Court: Idaho Court of Appeals
• Writing for the Court: PERRY; WALTERS, C.J., and LANSING
• Citation: State v. Coleman, 128 Idaho 466, 915 P.2d 28 (Idaho App. 1996)
• Decision Date: 07 March 1996
• Docket Number: No. 21388,21388
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Barry Ellis COLEMAN, Defendant-Appellant.

Page 28

915 P.2d 28

128 Idaho 466

STATE of Idaho, Plaintiff-Respondent, v. Barry Ellis COLEMAN, Defendant-Appellant.

No. 21388.

Court of Appeals of Idaho.

March 7, 1996.

Petition for Review Denied May 13, 1996.

[128 Idaho 468] Appeal from the District Court of the Seventh Judicial District, Madison County; Brent Moss, District Judge.

W. Brent Eames, Rexburg, for appellant.

Alan G. Lance, Attorney General; Catherine O. Derden, Deputy Attorney General, Boise, for respondent. Catherine O. Derden argued.

PERRY, Judge.

In this appeal from his judgment of conviction of two counts of lewd conduct with a minor, Barry Ellis Coleman challenges the district court's denial of three separate motions to dismiss. For the reasons explained below, we affirm.

I. PROCEDURAL HISTORY

Coleman was charged with two counts of lewd conduct with a minor, I.C. § 18-6607, and one count of infamous crime against nature, I.C. § 18-6605. The information, which was filed in October 1993, alleged that Coleman had committed the crime of lewd conduct with a minor against one of his daughters between January 1, 1977, and February 20, 1979 (Count I). As to another minor daughter, Coleman was alleged to have committed the crime of lewd conduct between August 8, 1975, and February 20, 1979 (Count II), and infamous crime against nature between June 5, 1976, and February 20, 1979 (Count III). Each count of the information also recited circumstances allegedly tolling the statute of limitation and authorizing the 1993 prosecution.

Coleman, through his counsel, moved the district court for dismissal of the charges, claiming that the prosecution of the offenses against him was barred by the statute of limitation, I.C. § 19-402, and was not within the exceptions outlined in I.C. § 19-404. Coleman filed a second motion for dismissal wherein he asserted that the statutes criminalizing lewd conduct with a minor and infamous crime against nature, as they existed at the time of the alleged offenses, were unconstitutionally vague, and that the information suffered from indefiniteness as to the dates when the offenses were committed. Coleman also sought dismissal based on the state's failure to present corroborating evidence at the preliminary hearing. All three of the dismissal motions were denied.

Thereafter, Coleman entered a conditional plea of guilty to the two lewd conduct counts, and the infamous crime against nature charge was dismissed. As part of the plea agreement, Coleman reserved his right to appeal the denial of his motions to dismiss. A judgment of conviction on the two counts of lewd conduct was entered, and Coleman filed a timely appeal.

II. ANALYSIS

1. Tolling of the Statute of Limitation

On appeal, Coleman asserts that because the filing of the complaint in his case came more than thirteen years after the alleged crimes were committed, it fell outside of the five-year statute of limitation. ¹ Coleman argues that his case is not governed by I.C. § 19-404, which authorizes a tolling of the statute of limitation period and which operates as a bar against prosecution unless the statute has been tolled. This issue of the applicability of I.C. § 19-404, therefore, raises questions of statutory construction, over which we exercise free review. Sun Valley Co. v. City of Sun Valley, 109 Idaho 424, 428, 708 P.2d 147, 151 (1985); State v. Nelson, 119 Idaho 444, 446, 807 P.2d 1282, 1284 (Ct.App.1991).

The task of the court in interpreting the meaning of language contained in a statute is to give effect to the legislature's intent and purpose. Sweitzer v. Dean, 118 Idaho 568, 798 P.2d 27 (1990). It is incumbent upon the court to interpret the statute in a manner that will not nullify it, and it is not to be presumed that the legislature performed an idle act of enacting a superfluous statute. Id. In construing a statute, the court may examine the language used, the reasonableness of proposed interpretations and the policy behind the statute. Umphrey v. Sprinkel, 106 Idaho 700, 682 P.2d 1247 (1983); State v. Seamons, 126 Idaho 809, 892 P.2d 484 (Ct.App.1995).

Idaho Code Section 19-404 reads as follows:

If, when the offense is committed, the defendant is out of the state, the indictment may be found within the term herein limited after his coming within the state, and no time during which the defendant is not an inhabitant of, or usually resident within, the state is part of the limitation.

Described as an exception to the limitation period governed by I.C. § 19-402, I.C. § 19-404 provides for tolling of the statute of limitation where the defendant is out of the state. See State v. Steensland, 33 Idaho 529, 195 P. 1080 (1921). "The exception being for the benefit of the state, it is incumbent upon the state to show that it obtains." Id., at 533, 195 P. at 1081. The state must prove the commission of the offense within the statutory period, or the existence of conditions which preserve the right in the state to prosecute after the time limited by the statute of limitation. Id., at 534, 195 P. at 1082.

Claiming that his alleged crime of lewd conduct with a minor was not committed while he was out of the state, Coleman advocates an interpretation of I.C. § 19-404 which would bar a prosecution against him. Coleman asserts that commission of the crime while he was out of the state, in conjunction with a subsequent absence from the state, is required for the five-year statute of limitation to be tolled. Such a reading of I.C. § 19-404, however, would render a portion of the statute meaningless.

In construing a statute, the court has the express duty to give effect to all sections of the statute and not to deprive any statutory provisions of their meaning. See George W. Watkins Family v. Messenger, 118 Idaho 537, 797 P.2d 1385 (1990). The Idaho Supreme Court, in Steensland, recognized the two situations in I.C. § 19-404 which trigger a tolling of the limitation of time within which to bring a complaint as "cases where a defendant was absent from the state when the crime was committed and when the accused was absent or not usually resident within the state during a portion of the time." Steensland, 33 Idaho at 533, 195 P. at 1081. Furthermore, the courts in California have interpreted their identical statute ² to hold that the exception tolling the limitation period "includes the case of the defendant leaving the State after the commission of the crime as [well as] the case of his absence at the time of its perpetration, and that it applies to all offenses." People v. McGill, 10 Cal.App.2d 155, 51 P.2d 433, 434 (1935), quoting People v. Montejo, 18 Cal. 38 (1861).

Accordingly, we reject the application of I.C. § 19-404 in the manner suggested by Coleman. The complaint against Coleman alleges that he was in the state at the time he perpetrated the lewd conduct on his young daughters. The allegations also indicate that in 1979, Coleman and his family left the state of Idaho. Although by 1993 the five-year period commencing at the time of the alleged lewd conduct had passed, I.C. § 19-404 operated to extend the limitation period during the time Coleman was "not an inhabitant of, or usually resident within, this state." We conclude, therefore, that the application of I.C. § 19-404, under the facts of Coleman's case, brought the state's prosecution of Coleman for the lewd conduct charges within the parameters of the statute of limitation set forth in I.C. § 19-402.

2. Void for Vagueness Challenge

Coleman asserts that the substantive criminal statutes under which he was charged were unconstitutionally vague. He argues that Idaho Code Section 18-6607, which prohibits the commission of any lewd or lascivious act upon a minor under sixteen, is not sufficiently definite, or understandable by the average person, to provide reasonable notice of the conduct being proscribed. Making the same argument with respect to I.C. § 18-6605 forbidding infamous crimes against nature, Coleman insists that both statutes leave the general public to guess at their meaning and to speculate as to the conduct which the statutes seek to punish.

The doctrine of void for vagueness is derived from the due process clause and prohibits holding a person "criminally responsible for conduct which he could not reasonably understand to be proscribed." State v. Lopez, 98 Idaho 581, 590, 570 P.2d 259, 268 (1976), quoting United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed.989 (1954). Due process is violated when a statute which either forbids or requires the doing of an act is written in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application. Id., citing Connally v. General Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

In 1952, the Idaho Supreme Court held:

Lewd and lascivious are words in common use and the definitions indicate with reasonable certainty the kind and character of acts and conduct which the legislature intended to prohibit and punish, so that a person of ordinary understanding may know what conduct on his part is condemned.... [Therefore,] the certainty required by due process is present.

State v. Evans, 73 Idaho 50, 57, 245 P.2d 788, 791-92 (1952). After Evans, the Court concluded that the statute was sufficiently certain to convey to a person of ordinary understanding an adequate description of the evil intended to be proscribed, State v. Harmon, 107 Idaho 73, 78, 685 P.2d 814, 819 (1984); State v. Shannon, 95 Idaho 299, 302, 507 P.2d 808, 811 (1973), and was not unconstitutionally vague. State v. Schwartzmiller, 107 Idaho 89, 94, 685 P.2d 830, 835 (1984). We therefore find Coleman's challenge to the constitutional validity of I.C. § 18-6607 to be unavailing.

We also conclude that this appeal with respect to Count III of the information, charging Coleman with infamous crime against nature, is not predicated upon either a final order or a judgment of conviction. See State...