State v. Maciolek

• Decision Date: 16 February 1984
• Docket Number: No. 49904-7,49904-7
• Citation: 101 Wn.2d 259,676 P.2d 996
• Parties: STATE of Washington, Respondent, v. Larry H. MACIOLEK, Appellant. STATE of Washington, Respondent, v. Shawn Robert JOHNSON, Appellant. STATE of Washington, Respondent, v. Melissa Ann THOMPSON, Appellant.
• Court: Washington Supreme Court

Page 259

101 Wn.2d 259

676 P.2d 996

STATE of Washington, Respondent, v. Larry H. MACIOLEK, Appellant.

STATE of Washington, Respondent, v. Shawn Robert JOHNSON, Appellant.

STATE of Washington, Respondent, v. Melissa Ann THOMPSON, Appellant.

No. 49904-7.

Supreme Court of Washington En Banc.

Feb. 16, 1984.

Washington Appellate Defender Jonathan S. Cole, Kim S. Wakefield, Seattle, for appellants.

Norman K. Maleng, King County Prosecutor, Monica Benton, Deputy Pros. Atty., Seattle, for respondent.

BRACHTENBACH, Justice.

This appeal presents a single issue, whether a statute and an ordinance, RCW 9.41.270 and Seattle City Ordinance 110179, codified as Seattle Municipal Code 12A.14.075, are unconstitutionally vague.

Appellants, Larry H. Maciolek and Shawn Robert Johnson, were each convicted of violating RCW 9.41.270. The statute reads:

It shall be unlawful for anyone to carry, exhibit, display or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

Appellant, Melissa A. Thompson, was convicted of violating Seattle Municipal Code 12A.14.075(A) (Supp. 4 1981). The code reads:

It shall be unlawful for any person to carry, exhibit, display or draw any dangerous knife or deadly weapon in a manner, under circumstances, and at a time and place that manifests an intent to intimidate another person.

The facts underlying each conviction are as follows.

State v. Maciolek

Appellant, who had injured his hand, requested a prescription for Percodan from his physician. The doctor had previously determined that the appellant was abusing prescription Percodan and refused to renew the prescription. Thereupon, the appellant became very angry and deliberately pulled back his jacket to reveal a handgun which was carried within an inside pocket of the jacket. The doctor, alarmed and intimidated by this display, immediately wrote out a prescription for Percodan. Based upon these facts, the appellant was found guilty of violating RCW 9.41.270 in Roxbury District Court but the court commissioner set aside the conviction and dismissed the charges after finding the statute unconstitutionally vague. The State appealed this ruling and the Superior Court reversed, finding the statute was neither vague on its face or as applied.

State v. Johnson

Appellant, who was 13 years old at the time of the incident, was cited for violating RCW 9.41.270 after an altercation with two 9-year-old children. The two 9-year-olds claimed that the appellant fired his BB gun at them and after doing so took one of their bikes. While there was ambiguity in the testimony due to the ages of the parties involved, a reading of the entire record supports the conclusion of the juvenile court trial judge that the appellant and a friend were in possession of weapons at the time in question (BB rifle and BB pistol) and both fired those weapons at the two youths, thus violating RCW 9.41.270.

State v. Thompson

Appellant's citation and conviction arose from an incident occurring in downtown Seattle at approximately 1:05 a.m. A Seattle police officer testified that while stopped for a red light at an intersection, he observed two women running up the center of the street. Appellant who was brandishing a knife, appeared to be chasing the second woman. The officer stopped both women and the second woman told the officer that she had argued with the appellant and that the appellant had chased her threatening her with the knife. The officer then placed the appellant under arrest. Based on the foregoing, the juvenile court found the appellant guilty of violating Seattle Municipal Code 12A.14.075(A).

The trial court in both Thompson and Johnson denied the appellants' motions in each case, to dismiss their charges on the grounds that the enactments were unconstitutional. All three cases were appealed to the Court of Appeals. They were consolidated and certified to this court. We now hold that neither the statute nor the code are unconstitutionally vague and affirm all three convictions.

As an initial consideration, the appellants must have standing to bring their vagueness challenge. State v. Sherman, 98 Wash.2d 53, 653 P.2d 612 (1982). All three appellants allege that each enactment on its face is unconstitutionally void for vagueness. They argue that since they challenge the enactment under which they have been accused as vague and with no standards regardless of their conduct they have standing. Cf. State v. Zuanich, 92 Wash.2d 61, 63, 593 P.2d 1314 (1979). The State concedes that the appellants have standing to challenge the enactments but argue that the appellants' conduct is relevant in determining the vagueness of each enactment because in all three cases, the appellants' conduct falls within the constitutional core of both the statute and ordinance. Cf. State v. Zuanich, supra.

The analytical framework is set out in State v. Hood, 24 Wash.App. 155, 600 P.2d 636 (1979).

The test to be applied by the court in determining whether a statute is unconstitutional depends on the allegation made. When it is alleged that a statute is wholly unconstitutional, the court looks not to the conduct of the defendant, but to the face of the statute to determine whether any conviction under the statute could be constitutionally upheld. Bellevue v. Miller, [85 Wash.2d 539, 536 P.2d 603 (1975) ] supra. If, upon such an examination, the court finds that no conviction could be upheld, the statute is unconstitutional on its face. Bellevue v. Miller, supra.

Although the actual conduct of defendant is irrelevant when a statute is alleged to be unconstitutional on its face, the conduct of defendant is relevant when it is alleged that the statute is unconstitutional only in part, or the court, although not finding the statute to be unconstitutionally vague on its face, finds the statute to be potentially vague as to some conduct. In such cases, the court must look to defendant's conduct to determine whether the statute, as applied to that conduct, is unconstitutional. Bellevue v. Miller, supra. This is because while a statute may be vague or potentially vague as to some conduct, the statute may be constitutionally applied to one whose conduct clearly falls within the constitutional "core" of the statute. State v. Zuanich, 92 Wash.2d 61, 593 P.2d 1314 (1979).

Hood, at 158, 600 P.2d 636. Therefore, we must examine the two enactments to see if they are facially vague without any concern for the appellants' conduct. If they are not facially vague but potentially vague as to some conduct then the appellants' conduct becomes relevant to determine if their conduct falls within the constitutional core of the statute.

We begin our analysis by restating some general propositions. A statute is presumed constitutional and the party challenging the constitutionality of a legislative enactment has the burden of proving it is unconstitutionally vague. State v. Rhodes, 92 Wash.2d 755, 600 P.2d 1264 (1979); Seattle v. Drew, 70 Wash.2d 405, 423 P.2d 522 (1967). A statute or ordinance should not be declared unconstitutional unless it appears unconstitutional beyond a reasonable doubt. State v. Dixon, 78 Wash.2d 796, 479 P.2d 931 (1971); State v. Primeau, 70 Wash.2d 109, 422 P.2d 302 (1966). Therefore, RCW 9.41.270 and Seattle Municipal Code 12A.14.075(A) are presumed constitutional with a heavy burden placed on the appellants to prove the statute and/or ordinance are unconstitutional. Spokane v. Vaux, 83 Wash.2d 126, 516 P.2d 209 (1973).

To meet this burden the appellants must prove that neither the statute nor the code satisfies the requirements of due process. The test for evaluating the vagueness of legislative enactments contains two components: adequate notice to citizens and adequate standards to prevent arbitrary enforcement. Kolender v. Lawson, --- U.S. ----, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); State v. Hilt, 99 Wash.2d 452, 454, 662 P.2d 52 (1983); Seattle v. Pullman, 82 Wash.2d 794, 797, 514 P.2d 1059 (1973).

The requirement that criminal legislation be definite in language is premised on two considerations. First, the statute must provide fair notice, measured by common practice and understanding, of that conduct which is prohibited, so that persons of reasonable understanding are not required to guess at the meaning of the enactment. Second, the statute must contain ascertainable standards for adjudication so that police, judges, and juries are not free to decide what is prohibited and what is not, depending on the facts in each particular case.

(Citations omitted.) State v. Foster, 91 Wash.2d 466, 474, 589 P.2d 789 (1979), quoting State v. Carter, 89 Wash.2d 236, 239-40, 570 P.2d 1218 (1977). Thus, to comport with due process both enactments must meet the dual requirements of adequate notice and adequate standards. We find that both enactments meet this dual requirement and, therefore, neither is unconstitutionally vague on its face.

Appellants argue that the definition of weapons in RCW 9.41.270 ("other cutting or stabbing instrument", "any other weapon apparently capable of producing bodily harm") and the definition of the weapons use ("in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons") make both enactments unconstitutionally vague, relying quite heavily on Bellevue v. Miller, 85 Wash.2d 539, 536 P.2d 603 (1975). ¹

These arguments are not well taken. Both enactments meet the first test for vagueness--adequate notice. " 'Common intelligence' is the test of what is fair warning. Thus, if men of ordinary intelligence can understand a penal statute, notwithstanding some possible areas of...