State v. Curtis

• Decision Date: 05 January 2004
• Docket Number: No. 25762.,25762.
• Citation: 591 S.E.2d 600,356 S.C. 622
• Parties: The STATE, Respondent, v. Kenneth CURTIS, Appellant.
• Court: South Carolina Supreme Court

356 S.C. 622

591 S.E.2d 600

The STATE, Respondent, v. Kenneth CURTIS, Appellant.

No. 25762.

Supreme Court of South Carolina.

Heard October 21, 2003.

Decided January 5, 2004.

Rehearing Denied February 4, 2004.

C. Rauch Wise, of Greenwood, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Robert M. Ariail, of Greenville, for Respondents.

Justice WALLER:

Kenneth Curtis was convicted of two counts of the sale of urine with the intent to defraud a drug or alcohol test, in violation of S.C.Code Ann. § 16-13-470 (2003). We affirm.

FACTS

In 1994, Curtis started a business known as Privacy Protection Services (PPS) which sells urine substitution kits to individuals. The kits contain urine, a pouch, a tube, a handwarmer device, duct tape, a pen, instructions for use, two business cards and a "Notice." The instructions advise how to use the heat pack to maintain proper temperature, how to affix the kit to the body for "maximum concealment," and instruct the user to check the temperature strip just before arriving at the collection center and to "dress in loose fitting clothing." The instructions also claim that "after thousands of kits and years of testing, no one has ever failed a test when using our kit." At the bottom of the instructions is a "Disclaimer Statement" which, among other things, states that "Privacy Protection Services does not market this kit for use in `drug testing.'" A strip of paper, approximately 2" by 8" enclosed in the kits states that "Because of recent changes in South Carolina law, Privacy Protection Services no longer markets this URINE TEST substitution kit for use in `DRUG TESTING'.... THIS PRODUCT IS SOLD AS A NOVELTY ONLY." However, also included in the kits are Privacy Protection Services business cards, stating "Pass Any Drug Test." Curtis was indicted in July 2001, and charged with two counts of violating § 16-13-470.¹ The jury convicted him on both counts.

ISSUES

1. Do the indictments sufficiently allege a crime?

2. Is the term "drug test" impermissibly vague?

3. Did the trial court err in allowing Curtis to be cross-examined regarding pornographic websites accessible from his internet website?

4. Did the court err in denying Curtis' motion for a directed verdict?

1. SUFFICIENCY OF INDICTMENTS

The indictments in this matter allege:

That KENNETH CURTIS did in Greenville County ... unlawfully, knowingly, and intentionally operate a business that sold a quantity of urine and a supplemental heating device, with the intent to defraud a drug or alcohol test. This being in violation of § 16-13-470 ...

Curtis asserts the indictments, while alleging his business sold urine with the intent to defraud, fail to allege that he, individually, had the intent to defraud a drug test. We disagree.

An indictment is sufficient if it apprises the defendant of the elements of the offense intended to be charged and apprises the defendant what he must be prepared to meet. State v. Wilkes, 353 S.C. 462, 464-465, 578 S.E.2d 717, 719 (2003). Further, an indictment is sufficient if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer and whether he may plead an acquittal or conviction thereon. Id. An indictment phrased substantially in language of a statute which creates and defines the offense is ordinarily sufficient. State v. Shoemaker, 276 S.C. 86, 275 S.E.2d 878 (1981).

The indictment here patently alleges that Curtis knowingly and intentionally operated a business which sold urine with the intent to defraud a drug test. If Curtis knowingly and intentionally operated a business which sold urine with the intent to defraud, it is patent that his conduct is within the ambit of the statute. The fact that the indictment does not allege that he personally sold urine with the intent to defraud is not fatal. We find no merit to this contention.

2. IMPERMISSIBLY VAGUE

Curtis next asserts § 16-13-470 is impermissibly vague inasmuch as it fails to define the term "drug test." We disagree.

Statutes are to be construed in favor of constitutionality, and this Court will presume a legislative act is constitutionally valid unless a clear showing to the contrary is made. State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994). A legislative enactment will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution. See Westvaco Corp. v. South Carolina Dep't of Revenue, 321 S.C. 59, 467 S.E.2d 739 (1995)

. The established test for vagueness is whether the statute provides "fair notice to those to whom the law applies." Main v. Thomason, 342 S.C. 79, 92, 535 S.E.2d 918, 925 (2000). A statute is not unconstitutionally vague if a person of ordinary intelligence seeking to obey the law will know, and is sufficiently warned of, the conduct the statute makes criminal. Johnson v. Collins Entertainment Co., Inc., 349 S.C. 613, 564 S.E.2d 653 (2002). As Justice Toal noted in Curtis v. State, 345 S.C. 557, 549 S.E.2d 591 (2001), [a] law is unconstitutionally vague if it forbids or requires the doing of an act in terms so vague that a person of common intelligence must necessarily guess as to its meaning and differ as to its application.... One to whose conduct the law clearly applies does not have standing to challenge it for vagueness. 345 S.C. at 572,

549 S.E.2d at 598.

In Curtis, we upheld § 16-13-470 against challenges of vagueness for failing to define the terms "foil," "spike," "defraud," "bodily fluids," and "adulterate," stating, "all the Constitution requires is that the language convey sufficiently definite warnings as to the proscribed conduct when measured by common understanding and practices." Id.

Contrary to Curtis' contention, the term "drug test" clearly has a sufficiently common meaning to put him on notice of the conduct proscribed. Main v. Thomason, supra.

Curtis alleges the statute is unduly vague in failing to specify that it is only the sale of urine with the intent to defraud testing for illegal drug usage which is prohibited. We disagree. Initially, we note that the Legislature, had it chosen to do so, could easily have specified that only the sale with the intent to defraud tests for illegal drugs was prohibited. Its failure to do so indicates its intent that the intent to defraud any drug test is illegal. Stardancer Casino v. Stewart, 347 S.C. 377, 556 S.E.2d 357 (2001); Tilley v. Pacesetter, 333 S.C. 33, 508 S.E.2d 16 (1998) (if legislature had intended certain result in statute it would have said so).

Curtis asserts that prohibiting the sale of urine with the intent to defraud any drug test is an unwarranted intrusion upon the privacy of those tested and that there is no legitimate purpose in allowing businesses to test employees or others for drugs which are not illegal. Curtis has no standing to assert the privacy rights of persons who are being tested. State v. McKnight, 352 S.C. 635, 576 S.E.2d 168 (2003)(one cannot obtain a decision as to the invalidity of an act on the ground that it impairs the rights of others). To the extent that an employee or person tested wishes to challenge the legitimacy of a certain test, they are free to do so. Further, the statute merely prohibits the sale of urine with the intent to defraud a drug test; it does not give businesses unfettered discretion to test.²

We find the term "drug test" sufficiently apprises Curtis of the conduct proscribed by the statute.

3. PORNOGRAPHIC WEBSITE

Curtis next argues the trial court erred in permitting the state to cross-examine him concerning pornographic links on his website.

Curtis' website³ provides the following information: "Our Complete Urine Test Substitution Kits allow anyone, regardless of substance intake, to pass any urinalysis within minutes." It further states:

Proven real world protection from urine testing invasions... Designed to easily be concealed on the body the kits are complete with chemically reactive supplemental heat sources and temperature monitoring system that insures proper acceptance temperature is maintained (Proper temperature is a critical element for acceptance at any testing site). You can use our kit in a natural urinating position, unisex (male or female), and you cannot be detected even if directly observed....

Our Kits Work!!!

We guarantee 100% satisfaction and 300% results. It works because it's easy to use and gives the piss police what they want....

After thousands of sales no one has ever failed a test when using our kit.

At trial, the state began its presentation of the case by calling SLED agent West, who investigated the case against Curtis, and inquiring about the contents of the PPS website. A printout from the website was entered into evidence, and Agent West was extensively questioned concerning the contents of the site and the claims therein. The state introduced this information for the purpose of establishing Curtis' intention in selling the urine substitution kits.

After the state rested, the first person called by the defense was Curtis' webmaster, James Turner. Turner was questioned concerning the contents of the website, and whether, at Curtis' request, all references to "drug testing" had been removed from the site subsequent to the passage of § 16-13-470. Counsel then began going through the website with him page by page, beginning with a "Media Archives" section, which included clips of Curtis' appearances on various television shows. The defense then moved to the "Links" section of the website and asked Turner to explain to the jury how they decided what links to incorporate into the site. Turner explained that they had an "open-link"...