State v. Collins
| Decision Date | 17 May 2022 |
| Docket Number | SC 99211 |
| Citation | 648 S.W.3d 711 |
| Parties | STATE of Missouri, Respondent, v. Joshua Steven COLLINS, Appellant. |
| Court | Missouri Supreme Court |
Collins was represented by Christian E. Lehmberg of the public defender's office in Columbia, (573) 777-9977.
The state was represented by Garrick Aplin of the attorney general's office in Jefferson City, (573) 751-3321.
Joshua Steven Collins (hereinafter, "Collins") appeals the circuit court's judgment after a jury found him guilty of tampering with a judicial officer and second-degree harassment of his probation officer, A.G. Collins asserts a facial overbreadth challenge to the second-degree harassment statute, section 565.0911 and challenges the sufficiency of the evidence to support his second-degree harassment conviction. Collins also argues the circuit court violated his right to be free from double jeopardy when it sentenced him to both tampering with a judicial officer and second-degree harassment because he believes second-degree harassment is a lesser-included offense of tampering with a judicial officer.
This Court holds section 565.091 is not overbroad, there was sufficient evidence to support Collins’ conviction for second-degree harassment, and sentencing him for both tampering with a judicial officer and second-degree harassment did not violate his right to be free from double jeopardy. The circuit court's judgment is affirmed.2
In January 2019, probation and parole officer A.G. began supervising Collins for his felony fourth-degree assault conviction.3 Part of A.G.’s duties required her to monitor Collins’ romantic status and dating activity. Collins also was required to use an alcohol monitor that alerted A.G. if he consumed alcohol.
In May 2019, A.G. was alerted Collins consumed alcohol, and she contacted him by telephone. A.G. described Collins as "very angry" during their conversation. Collins mentioned A.G.’s Facebook account and stated he left her a voicemail message at her office. A.G. directed Collins to stay home until the monitor indicated he had no alcohol in his system or she spoke to him again. After hanging up, A.G. checked her Facebook account and discovered Collins sent her a friend request and several direct messages. These messages stated:
Hey[.] I hired a P.I. Omg you should see what I found[.] Decided too [sic] check you out like you check me out[.] You should call me cause your sons this [sic] selling meth[.] I got pics[.] She's doing blow jobs too[.] Lol[.] I have so much to give Jones[.]4
A.G. has three adult children: two sons and a daughter. A.G. never discussed her children with Collins. The Facebook messages repeated what Collins told her when they spoke on the telephone. A.G. immediately contacted her children to inform them about Collins’ messages, to see if he sent them Facebook friend requests, and to advise them to make their Facebook accounts as secure as possible. A.G. contacted her supervisor and sent him copies of Collins’ messages. Upon her supervisor's advice, A.G. contacted the police.
A.G. went to her office the next morning and listened to Collins’ voicemail message, which repeated the information he conveyed during their telephone conversation and in the Facebook messages. Collins reiterated his accusation her son was involved with drugs and stated her other son was a "date raper [sic]." Collins told A.G. he had a "P.I.," stated, "you follow me, I follow you," and called her a bitch. After receiving the Facebook and voicemail messages, A.G. was "scared, nervous, anxious, worried, and concerned," particularly for her children because she was supervising Collins for a violent offense and was uncertain about his intentions. A.G. had supervised approximately 250 to 300 offenders previously, and none of them attempted to contact her through Facebook or make threats or accusations involving her family.
Collins was charged with tampering with a judicial officer and first-degree harassment. He filed motions to dismiss the charges, asserting overbreadth challenges to the constitutional validity of both statutes and alleging his right to be free from double jeopardy was violated. The circuit court overruled both motions. A jury found Collins guilty of tampering with a judicial officer and second-degree harassment, which was submitted to the jury as a lesser-included offense of first-degree harassment. Collins renewed his constitutional arguments in his motion for new trial, which the circuit court overruled. Collins appeals.
In his first point on appeal, Collins argues the circuit court erred in overruling his motion to dismiss the second-degree harassment charge on constitutional grounds. Collins contends section 565.091 is unconstitutionally overbroad in violation of the First and Fourteenth amendments to the United States Constitution and article I, sections 8 and 10 of the Missouri Constitution because it infringes on constitutionally protected acts.
"This Court reviews the constitutional validity of a statute de novo. " Donaldson v. Mo. State Bd. of Registration for the Healing Arts , 615 S.W.3d 57, 62 (Mo. banc 2020). "This Court will presume the statute is valid and will not declare a statute unconstitutional unless it clearly contravenes some constitutional provision." Alpert v. State , 543 S.W.3d 589, 595 (Mo. banc 2018). This Court will not invalidate a statute unless Collins meets his burden of proving the statute "clearly and undoubtedly violates some constitutional provision." State v. S.F. , 483 S.W.3d 385, 387 (Mo. banc 2016).
"Generally[,] ‘a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.’ " State v. Vaughn , 366 S.W.3d 513, 518 (Mo. banc 2012) (quoting Broadrick v. Oklahoma , 413 U.S. 601, 610, 93 S. Ct. 2908, 37 L.Ed.2d 830 (1973) ). Missouri courts permit an exception to this rule for First Amendment challenges in which litigants "are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Id. (quoting Broadrick , 413 U.S. at 612, 93 S.Ct. 2908 ).
Collins contends section 565.091 is overbroad. "The overbreadth doctrine restricts statutes that prohibit not only unprotected behavior, but also constitutionally protected behavior." State v. Roberts , 779 S.W.2d 576, 579 (Mo. banc 1989). "The overbreadth doctrine may apply when criminal statutes ‘make unlawful a substantial amount of constitutionally protected conduct ... even if they also have legitimate application.’ " State v. Pribble , 285 S.W.3d 310, 316 (Mo. banc 2009) (alteration in original) (quoting State v. Moore , 90 S.W.3d 64, 66 (Mo. banc 2002) (citation omitted)). "[T]he overbreadth doctrine is strong medicine and must be employed with hesitation, and then only as a last resort." State v. Helgoth , 691 S.W.2d 281, 285 (Mo. banc 1985) (internal quotations omitted) (quoting New York v. Ferber , 458 U.S. 747, 769, 102 S. Ct. 3348, 73 L.Ed.2d 1113 (1982) ).
"The first step in the overbreadth analysis is to construe the challenged statute." Vaughn , 366 S.W.3d at 518. "[C]ourts may use a narrowing construction when ‘the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish.’ " Planned Parenthood of Kan. v. Nixon , 220 S.W.3d 732, 741 (Mo. banc 2007) (quoting Brockett v. Spokane Arcades, Inc. , 472 U.S. 491, 504, 105 S. Ct. 2794, 86 L.Ed.2d 394 (1985) ). "A narrowing construction is the preferred remedy in First Amendment cases" in that "a statute is construed so as to be in harmony with the constitution and upheld." Id.
Collins was convicted of second-degree harassment pursuant to section 565.091.1, which states, "A person commits the offense of harassment in the second degree if he or she, without good cause, engages in any act with the purpose to cause emotional distress to another person." "Emotional distress" is defined as "something markedly greater than the level of uneasiness, nervousness, unhappiness, or the like which are commonly experienced in day-to-day living." Section 565.002(7).
Id. at 516 n.2 (quoting section 565.090(6) ).
Both parties urge this Court to apply Vaughn ’s narrowing constructions to section 565.091, but to different effect. Collins believes section 565.091 is unconstitutional when applying Vaughn ’s first two narrowing constructions, while the third narrowing construction, "fighting words," does not apply here. The state contends Vaughn ’s narrowing constructions support the statute's validity because section 565.091 contains substantially similar language to subdivision (6...
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