State v. Curtis, No. 25762.

CourtUnited States State Supreme Court of South Carolina
Citation591 S.E.2d 600,356 S.C. 622
Docket NumberNo. 25762.
PartiesThe STATE, Respondent, v. Kenneth CURTIS, Appellant.
Decision Date05 January 2004

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.


356 S.C. 627
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."

356 S.C. 628
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

356 S.C. 629
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.

356 S.C. 630
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...

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61 practice notes
  • State v. Rice, No. 4300.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...to that evidence. State v. Young, 364 S.C. 476, 485, 613 S.E.2d 386, 391 (Ct.App.2005) cert. granted, Jan. 2007; see also State v. Curtis, 356 S.C. 622, 632, 591 S.E.2d 600, 605 (2004) ("Given that [defendants] maintained that PPS did not allow pornographic materials or links on the website......
  • State v. Moore, No. 4247.
    • United States
    • Court of Appeals of South Carolina
    • May 18, 2007
    ...case, an appellate court must view the evidence and all reasonable inferences in the light most favorable to the State. State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004); State v. Wilds, 355 S.C. at 274, 584 S.E.2d at 141; State v. Morgan, 352 S.C. 359, 364, 574 S.E.2d 203, 205 (Ct.App.2......
  • State v. Carlson, No. 3948.
    • United States
    • United States State Supreme Court of South Carolina
    • February 22, 2005
    ...hold the trial judge committed no abuse of discretion." Id. (citing Plyler, 275 S.C. at 298, 270 S.E.2d at 129). See also State v. Curtis, 356 S.C. 622, 633, 591 S.E.2d 600, 605 (2004) (holding that an objection made after several pages of testimony came too late to preserve the issue); Sta......
  • State v. Stanley, No. 4007.
    • United States
    • United States State Supreme Court of South Carolina
    • June 27, 2005
    ...Moultrie, 316 S.C. 547, 451 S.E.2d 34 (Ct.App.1994); State v. Wilkins, 310 S.C. 81, 425 S.E.2d 68 (Ct.App.1992); see also State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004) (contemporaneous objection required to preserve error for appellate review); State v. Atchison, 268 S.C. 588, 235 S.......
  • Request a trial to view additional results
61 cases
  • State v. Rice, No. 4300.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...to that evidence. State v. Young, 364 S.C. 476, 485, 613 S.E.2d 386, 391 (Ct.App.2005) cert. granted, Jan. 2007; see also State v. Curtis, 356 S.C. 622, 632, 591 S.E.2d 600, 605 (2004) ("Given that [defendants] maintained that PPS did not allow pornographic materials or links on the website......
  • State v. Moore, No. 4247.
    • United States
    • Court of Appeals of South Carolina
    • May 18, 2007
    ...case, an appellate court must view the evidence and all reasonable inferences in the light most favorable to the State. State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004); State v. Wilds, 355 S.C. at 274, 584 S.E.2d at 141; State v. Morgan, 352 S.C. 359, 364, 574 S.E.2d 203, 205 (Ct.App.2......
  • State v. Carlson, No. 3948.
    • United States
    • United States State Supreme Court of South Carolina
    • February 22, 2005
    ...hold the trial judge committed no abuse of discretion." Id. (citing Plyler, 275 S.C. at 298, 270 S.E.2d at 129). See also State v. Curtis, 356 S.C. 622, 633, 591 S.E.2d 600, 605 (2004) (holding that an objection made after several pages of testimony came too late to preserve the issue); Sta......
  • State v. Stanley, No. 4007.
    • United States
    • United States State Supreme Court of South Carolina
    • June 27, 2005
    ...Moultrie, 316 S.C. 547, 451 S.E.2d 34 (Ct.App.1994); State v. Wilkins, 310 S.C. 81, 425 S.E.2d 68 (Ct.App.1992); see also State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004) (contemporaneous objection required to preserve error for appellate review); State v. Atchison, 268 S.C. 588, 235 S.......
  • Request a trial to view additional results

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