State v. Jones

• Decision Date: 21 May 1973
• Docket Number: No. 1179--I,1179--I
• Citation: 511 P.2d 74,9 Wn.App. 1
• Parties: STATE of Washington, Respondent, v. Patricia Ann JONES, Appellant.
• Court: Washington Court of Appeals

Page 1

9 Wn.App. 1

511 P.2d 74

STATE of Washington, Respondent, v. Patricia Ann JONES, Appellant.

No. 1179--I.

Court of Appeals of Washington, Division 1, Panel Two.

May 21, 1973.

James V. Grubb, Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., Marco J. Magnano, Jr., Deputy Pros. Atty., Seattle, for respondent.

SWANSON, Judge.

A jury found a Burien sauna parlor masseuse, Patricia Jones, guilty of the crime of vagrancy on the basis of being a 'lewd, disorderly or dissolute person' in violation of RCW 9.87.010(7), which in pertinent part provides: 'Every . . . (7) (l)ewd, disorderly or dissolute person . . . is a vagrant.' She was sentenced to 1 year in the county jail. However, the sentence was deferred upon the condition that she serve 11 months in jail and pay a $500 fine, plus court costs.

From this judgment and sentence she appeals and contends (1) that the Washington vagrancy statute is unconstitutionally vague and therefore void; (2) that the evidence consisting of her admitted conduct of massaging a male customer's genital organs is insufficient to support her conviction because the conduct occurred between consenting adults in private; (3) that the court's instruction defining the offense was incorrect and prejudicial; and (4) that the court's sentence exceeded the maximum penalty permitted by the statute.

Appellant Jones's first assignment of error is directed to the trial court's failure to dismiss the case and is based on the argument that the section of the Washington vagrancy statute under which she was convicted, RCW 9.87.010(7), although upheld as constitutional in State v. Harlowe, 174 Wash. 227, 24 P.2d 601 (1933), should be held unconstitutional because it does not satisfy modern-day requirements that a criminal statute give notice of what type of conduct is prohibited. Appellant argues that the statute in question is so obscure that men of common intelligence must guess at its meaning. In order for appellant to advance successfully her void for vagueness argument in questioning the constitutionality of subdivision (7) of the Washington vagrancy statute, appellant must overcome several formidable obstacles. At the outset, as stated in Seattle v. Drew, 70 Wash.2d 405, at 407, 423 P.2d 522 at 523 (1967):

We begin our analysis of the questions presented mindful of the fact that when the constitutionality of an ordinance is questioned, it will be presumed constitutional. If it is reasonably capable of a constitutional construction, it must be given that construction. (Citations omitted.)

It should also be recognized that application of the doctrine of void for vagueness depends upon the repugnancy of the challenged legislation to the due process clause of the fourteenth amendment to the United States Constitution and that the primary issue facing a court considering the doctrine is whether the provisions of the penal statute in question are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and, at the same time, to inform judge and jury of standards for the determination of guilt. Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947); State v. Jacobsen, 78 Wash.2d 491, 477 P.2d 1 (1970). As our state Supreme Court said in Jacobsen at 498 of 78 Wash.2d 6 of 477 P.2d.

Criminal statutes need not spell out with absolute certainty every act or omission which is prohibited if the general terms of the act convey an understandable meaning to the average person.

Moreover, appellant's argument that modern-day constitutional standards demand that we strike down the Washington vagrancy statute is further answered by State v. Maloney, 78 Wash.2d 922, 481 P.2d 1 (1971), in which our state Supreme Court rejected similar constitutional arguments that the statute is vague and uncertain. In Maloney the court had before it an appeal from a conviction under the identical 'lewd, disorderly or dissolute' provision of the vagrancy statute involved in the case at bar, and stated at 924, 481 P.2d at 3:

In State v. Harlowe, 174 Wash. 227, 24 P.2d 601 (1933) we considered RCW 9.87.010(7), recognized the common and ordinary meaning of the terms employed and held that the provision was not vague and uncertain. Since that time, we have further considered and somewhat limited or narrowed the meaning of the word 'disorderly' as used in the context of the provision. In these later decisions we have held that the word, in its context, connotes overt misconduct contrary to the rules of good order and behavior, which is violative of the public peace. Seattle v. Franklin, 191 Wash. 297, 70 P.2d 1049 (1937); State v. Finrow, 66 Wash.2d 818, 405 P.2d 600 (1965); State v. Levin, 67 Wash.2d 988, 410 P.2d 901 (1966). As so construed and applied we can perceive no fatal vagueness.

It is recognized, however, that the factual situation in Maloney, which involved the distribution of an 'underground' newspaper on the premises of Spokane Community College and related primarily to the 'disorderly' portion of subdivision (7) of the vagrancy statute, is substantially different from the case at bar. Nevertheless, the Maloney court did reexamine the holding in State v. Harlowe, in connection with the same constitutional arguments presented by appellant here, and chose to reaffirm the Harlowe holding. We would dispose of appellant's constitutional arguments by reference to Maloney, without further discussion; however, the United States Supreme Court, in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), struck down the entire Jacksonville city vagrancy ordinance as being void for vagueness. This decision makes mandatory a careful reexamination of appellant Jones's constitutional arguments.

The Papachristou case involved eight defendants who were convicted of violating a city vagrancy ordinance. Five cases were consolidated on appeal. All of the defendants were charged generally with vagrancy but each charge was based upon different aspects of the ordinance definition of 'vagrant.' Thus, in the first case, four persons were charged with vagrancy by 'prowling by auto.' In the second case, the defendants were charged with vagrancy by being 'vagabonds.' In the third case, the defendants were arrested for 'loitering' and being a 'common thief.' In the fourth case, the defendant was charged with being a 'common thief.' Finally, in the fifth case, the defendant was charged with vagrancy by 'disorderly loitering on street' and 'disorderly conduct--resisting arrest with violence.' The Supreme Court said, through Justice Douglas, that the Florida vagrancy statute was

void-for-vagueness, both in the sense that it 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.' (Citation omitted.) and because it encourages arbitrary and erratic arrests and convictions. (Citations omitted.)

Papachristou, 405 U.S. at 162, 92 S.Ct. at 843. The court in Papachristou pointed out that the Jacksonville ordinance made criminal activities which by modern standards are normally innocent. In this connection, the court referred to portions of the ordinance which made 'loafing,' 'nightwalking,' 'wandering or strolling' criminal conduct. This ordinance went too far, the court said, in vesting unfettered discretion in the police to determine what is criminal and what is not.

An examination of the Jacksonville vagrancy ordinance condemned in Papachristou indicates that it was of a catchall nature in that it described conduct or condition or status which is as likely to be innocent and innocuous as it is that it is criminal. A careful reading of Papachristou indicates that the court was concerned primarily with statutes which (1) make one a vagrant purely on the basis of his passive status or condition, such as poverty or absence of employment; (2) statutes which make one a vagrant for engaging in an activity often considered innocuous, such as loitering or wandering about; and (3) statutes which make one a vagrant on the basis of his reputation.

Such statutes differ from the Washington vagrancy statute here under consideration which makes one a vagrant for acts or conduct generally obnoxious to community standards, such as lewdness. Further, unlike the Jacksonville vagrancy ordinance, the Washington vagrancy statute is subdivided so as to permit a court to uphold portions of the statute which might conform to constitutional standards on a section-by-section basis. In this connection, it is significant that the Washington vagrancy statute was amended by Laws of 1965, 1st Ex. Sess., ch. 112, § 2, which amendment states in effect that if one portion of the statute is held invalid, such holding does not make the whole statute invalid. In short, unlike the Jacksonville ordinance, our vagrancy statute is severable. We conclude that the Papachristou decision is clearly distinguishable from the case at bar, and hold that RCW 9.87.010(7) satisfies constitutional standards for precision and clarity.

In addition to the foregoing, a common sense answer to appellant's argument of vagueness and uncertainty may be given by reference to the testimony of appellant Jones when the deputy prosecutor attempted to ascertain whether or not she considered the so-called 'extended massage' unlawful:

Q Miss Jones, why did you ask Officer Burk to bring back some identification papers? A So I could find out where he really worked, what his real name was, a little bit about him. Q And what was the reason for that? A Because I don't like--I would like to get to know a customer before they receive any kind of treatment like that. Q Now do you recall the statement that Officer Burk testified that you made, that, 'If you're a cop, I'll hit you over the head'? Do you recall making that statement? A Yes. Q Why did...