State v. Cook, 33775.
| Decision Date | 20 May 2008 |
| Docket Number | No. 33775.,33775. |
| Citation | 192 P.3d 1085,146 Idaho 261 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Jack K. COOK, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
Jack K. Cook appeals from his judgment of conviction for infamous crime against nature, specifically challenging the constitutionality of the statute as applied to the facts of his case. For the reasons set forth below, we affirm.
Cook performed fellatio on T.F., a male adult with Down's Syndrome, in the sauna at a local gym. Cook was charged with one count of infamous crime against nature. I.C. § 18-6605. Cook filed a motion to dismiss, arguing that the infamous crime against nature statute was unconstitutional, either facially or as applied. The district court denied Cook's motion to dismiss. The language in the information charging Cook was amended several times based on motions by both Cook and the state. Eventually, Cook entered an I.C.R. 11 conditional plea of guilty, reserving the right to appeal the denial of his motion to dismiss. Cook appeals.
The constitutionality of a statute is a question of law that we review de novo. State v. Dickerson, 142 Idaho 514, 517-18, 129 P.3d 1263, 1266-67 (Ct.App.2006). The party challenging a statute on constitutional grounds bears the burden of establishing that the statute is unconstitutional and must overcome a strong presumption of validity. State v. Korsen, 138 Idaho 706, 711, 69 P.3d 126, 131 (2003). To prove a statute is unconstitutional "as applied," the party challenging the constitutionality of the statute must demonstrate that the statute, as applied to the defendant's conduct, is unconstitutional. Id. at 712, 69 P.3d at 132.
Idaho Code Section 18-6605, provides:
Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison not less than five years.
This statute has been construed to prohibit fellatio. State v. Izatt, 96 Idaho 667, 669-70, 534 P.2d 1107, 1109-10 (1975). This Court has held that I.C. § 18-6605 "may not be constitutionally enforced to prohibit private consensual marital conduct." State v. Holden, 126 Idaho 755, 761, 890 P.2d 341, 347 (Ct.App.1995).
The Due Process Clause of the United States Constitution provides a liberty interest that protects private, consensual homosexual contact. See Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 2483-84, 156 L.Ed.2d 508 (2003). Therefore, as Idaho's Supreme Court noted, Lawrence "legalized the practice of homosexuality and in essence made it a protected practice under the Due Process Clause of the United States Constitution." McGriff v. McGriff, 140 Idaho 642, 648, 99 P.3d 111, 117 (2004). However, the holding in Lawrence "does not affect a state's legitimate interest and indeed, duty, to interpose when consent is in doubt." Anderson v. Morrow, 371 F.3d 1027, 1033 (9th Cir.2004).
In this case, Cook argues that I.C. § 18-6605 is unconstitutional as applied to his conduct because he is being punished for private, consensual homosexual conduct. The state counters by arguing that Cook has failed to carry his burden of demonstrating that the government could not constitutionally regulate the conduct he engaged in because Cook has not shown that the sexual acts he committed upon T.F. were consensual.
Although the original information alleged that T.F. was "a vulnerable adult," Cook moved to have that language struck from the information before he pled guilty on the ground that vulnerability of the victim was not an element of the offense defined in I.C. § 18-6605. The district court struck the "vulnerable adult" phrase because it concluded that the phrase was "surplus language." Additionally, the state moved to amend the information to include "without the consent of T.F." Although the district court granted the state's motion and that language was added, Cook later moved to strike "without the consent of T.F.," also because the language did not allege an element of the offense. The district court again granted Cook's motion to strike. The amended information that Cook pled guilty to alleged, in part:
That the Defendant, JACK K. COOK, on or about the 17th day of June 2005, in the County of Nez Perce, State of Idaho, did commit an infamous crime against nature by having oral to genital contact with another person, T.F.
At Cook's change of plea hearing, the following colloquy occurred:
Cook asserts that he never admitted that the sexual act was performed in a public place or that it was nonconsensual. Therefore, Cook argues on appeal that, based on the information and his factual admissions at the change of plea hearing, he "could have been found guilty of the crime against nature solely by performing [fellatio] — the charge did not allege that the act was done in public or that T.F. was unable to consent." (Emphasis added).
Several jurisdictions have determined that a defendant waives an as-applied constitutional challenge by pleading guilty. See, e.g., State v. Keene, 629 N.W.2d 360, 364 (Iowa 2001); State v. Cole, 264 Wis.2d 520, 665 N.W.2d 328, 345 (2003). Presumably, this challenge is waived in part because an as-applied constitutional challenge is based on the particular facts of a defendant's case and it is often difficult to ascertain what those facts are without the benefit of a trial. Another jurisdiction gleaned the necessary facts from a probation report in evaluating a defendant's as-applied constitutional challenge after he pled guilty. See People v. Eduardo C., 90 Cal.App.4th 937, 108 Cal. Rptr.2d 924, 926 (2001).
In this case, Cook entered a conditional plea pursuant to I.C.R. 11, reserving the right to appeal the denial of his motion to dismiss. Therefore, we cannot conclude that his as-applied constitutional challenge was waived.1 However, rather than relying solely on the charging information and Cook's change of plea, we will examine the entire record to determine if Cook has met his burden to show that the conduct for which he was prosecuted is constitutionally protected.
In Cook's motion to dismiss before the district court, he argued that the United States Supreme Court's holding in Lawrence rendered Idaho's infamous crime against nature statute unconstitutional, facially or as applied. In denying Cook's...
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