State v. Hunter

• Decision Date: 19 June 1996
• Docket Number: No. 95-622,95-622
• Citation: 550 N.W.2d 460
• Parties: STATE of Iowa, Appellee, v. Frederick William HUNTER, Appellant.
• Court: Iowa Supreme Court

Page 460

550 N.W.2d 460

STATE of Iowa, Appellee, v. Frederick William HUNTER, Appellant.

No. 95-622.

Supreme Court of Iowa.

June 19, 1996.

Rehearing Denied July 26, 1996.

William L. Kutmus of Kutmus & Pennington, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Steven Foritano, Assistant County Attorney, for appellee.

Considered by McGIVERIN, C.J., and LAVORATO, SNELL, ANDREASEN, and TERNUS, JJ.

TERNUS, Justice.

Appellant, Frederick W. Hunter, was convicted of sexual exploitation of a minor after he photographed his partially-clothed, adopted daughter in provocative poses. See Iowa Code §§ 728.12(1), 728.1(6)(g) (1993). On appeal, he claims section 728.1(6)(g) is void for vagueness. We disagree and affirm.

I. Background Facts and Proceedings.

Clad only in his underwear and sexually aroused, Hunter photographed his twelve-year-old daughter in various stages of undress in a motel room. Several photographs show the girl's exposed breasts, pubic area and buttocks. In a number of the photographs, the girl is in provocative poses: legs widely parted; hands draped on her breasts; a pillow between her thighs; and hands cupping her buttocks. When Hunter attempted to have the film developed, the processor summoned the authorities.

The State charged Hunter with sexual exploitation of a minor in violation of sections 728.12(1) and 728.1(6)(g). Hunter filed a motion to dismiss contending section 728.1(6)(g) was void for vagueness because it did not contain a definition of the term "nudity" or of the phrase "for the purpose of arousing or satisfying the sexual desires." The district court overruled his motion. Hunter then pleaded guilty and was sentenced to prison for a period not to exceed ten years. Hunter appealed. ¹

II. Standard of Review.

We review constitutional claims de novo. State v. Huisman, 544 N.W.2d 433, 436 (Iowa 1996). As part of our analysis of a vagueness challenge we presume the statute is constitutional and give it any reasonable construction necessary to uphold it. State v. Osmundson, 546 N.W.2d 907, 909 (Iowa 1996).

III. Vagueness Claim.

Iowa Code section 728.12 prohibits the sexual exploitation of a minor:

A person commits a class "C" felony when the person employs, uses, persuades, induces, entices, coerces, knowingly permits, or otherwise causes a minor to engage in a prohibited sexual act or in the simulation of a prohibited sexual act if the person knows, has reason to know, or intends that the act or simulated act may be photographed, filmed, or otherwise preserved in a negative, slide, book, magazine, or other print or visual medium....

Iowa Code § 728.12(1) (1993) (emphasis added). The "prohibited sexual act" providing the basis for the charge against Hunter is "[n]udity of a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a depiction of the nude minor." See id. § 728.1(6)(g).

Hunter claims the definition of "prohibited sexual act" is unconstitutionally vague. First, he argues there is no statutory definition of "nudity of a minor for the purpose of arousing or satisfying the sexual desires of a person." Second, he claims First Amendment rights are implicated because the statute reaches persons who merely derive sexual enjoyment from a photograph of a nude minor.

A. Vagueness jurisprudence. "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983); accord Osmundson, 546 N.W.2d at 909; State v. Willis, 218 N.W.2d 921, 923 (Iowa 1974). This principle protects several important values:

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked."

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972) (citation omitted); accord Osmundson, 546 N.W.2d at 908-09.

B. Standing. A defendant charged with the violation of a statute has standing to claim the statute is unconstitutionally vague as applied to him or her. A defendant does not necessarily have standing to claim, in addition, that a statute is unconstitutional as applied to others. State v. Price, 237 N.W.2d 813, 816 (Iowa) (defendant not allowed to make a facial challenge to statute), appeal dismissed, 426 U.S. 916, 96 S.Ct. 2619, 49 L.Ed.2d 370 (1976).

If a statute is constitutional as applied to the defendant, the defendant lacks standing to make a facial challenge unless a recognized exception applies. Id. One such exception is a situation in which First Amendment rights are implicated. Id.; see Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 1929, 114 L.Ed.2d 524, 540 (1991) ("First Amendment freedoms are not infringed by [the statute], so the vagueness claim must be evaluated as the statute is applied to the facts of this case.").

The United States Supreme Court has not been entirely clear with respect to the scope of this First Amendment exception. In Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), the Court stated the fact a statute regulated expression did not suggest

that one who has received fair warning of the criminality of his own conduct from the statute in question is nonetheless entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.

Parker, 417 U.S. at 756, 94 S.Ct. at 2562, 41 L.Ed.2d at 458 (emphasis added); accord Kolender, 461 U.S. at 370, 103 S.Ct. at 1865, 75 L.Ed.2d at 917 (White, J., dissenting). In contrast, in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), the Court observed that "a defendant whose own speech was unprotected had standing to challenge the constitutionality of a statute which purported to prohibit protected speech, or even speech arguably protected." Young, 427 U.S. at 59, 96 S.Ct. at 2447, 49 L.Ed.2d at 319. The Court explained that this exception to the standing requirement applied only where a statute's deterrent effect on legitimate expression was "real and substantial." Id. at 60, 96 S.Ct. at 2447, 49 L.Ed.2d at 320.

In Kolender v. Lawson, the Court provided further illumination upon the question of standing. See Kolender, 461 U.S. at 358-62, 103 S.Ct. at 1858-60, 75 L.Ed.2d at 910-11. The Court explained that while vagueness "focuses both on actual notice ... and arbitrary enforcement ... the more important aspect [is] ... the requirement that a legislature establish minimal guidelines to govern law enforcement." Id. at 357-58, 103 S.Ct. at 1858, 75 L.Ed.2d at 909. The Court allowed a facial challenge to a penal vagrancy statute because that statute "encouraged arbitrary enforcement" by failing to provide clear criteria for enforcement; the statute reached "a substantial amount of constitutionally protected conduct." Id. at 358-62, 103 S.Ct. at 1858-60, 75 L.Ed.2d at 910-11.

The Court noted that in the arbitrary enforcement context, facial vagueness is "logically related and similar" to the overbreadth doctrine. ² Id. at 359 n. 8, 103 S.Ct. at 1859 n. 8, 75 L.Ed.2d at 910 n. 8; see Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 904 (1991) [hereinafter Overbreadth ] ("First Amendment vagueness doctrine is best conceptualized as a subpart of First Amendment overbreadth doctrine."); Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 110-13 (1960) (vagueness and overbreadth are indistinguishable); see also Grayned, 408 U.S. at 108-110, 92 S.Ct. at 2298, 33 L.Ed.2d at 227-28 (discussing vagueness policies); Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408, 413-14 (1972) (discussing overbreadth policies). As a result, "facial vagueness analysis becomes the functional equivalent of facial overbreadth analysis." Schwartzmiller v. Gardner, 752 F.2d 1341, 1347 (9th Cir.1984); see State v. Steiger, 162 Ariz. 138, 781 P.2d 616, 622 (App.1989); City of Englewood v. Hammes, 671 P.2d 947, 951 (Colo.1983) (en banc). This similarity is apparent when one examines the standing requirements for a First Amendment overbreadth challenge:

When speech or expressive activity forms a significant part of a law's target, the law is subject to facial challenge and invalidation if: (i) it is "substantially overbroad"--that is, if its illegitimate applications are too numerous "judged in relation to the statute's plainly legitimate sweep," and (ii) no constitutionally adequate narrowing construction suggests itself.

Overbreadth, 100 Yale L.J. at 863 (citations omitted); see Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 1697, 109 L.Ed.2d. 98, 111 (199...