State v. Moore

• Decision Date: 12 November 2002
• Docket Number: No. SC 84495.,SC 84495.
• Citation: 90 S.W.3d 64
• Parties: STATE of Missouri, Respondent, v. Charles E. MOORE, Appellant.
• Court: Missouri Supreme Court

Page 64

90 S.W.3d 64

STATE of Missouri, Respondent, v. Charles E. MOORE, Appellant.

No. SC 84495.

Supreme Court of Missouri, En Banc.

November 12, 2002.

Rehearing Denied December 24, 2002.

Bruce H. Galloway, Springfield, for Appellant.

T. Todd Myers, Brian D. Risley, Darrell L. Moore, Green County Prosecutor's Office, Springfield, for Respondent.

MICHAEL A. WOLFF, Judge.

Charles E. Moore was convicted of third-degree sexual misconduct, a crime committed when one "solicits another person to engage in sexual conduct under circumstances in which he knows that his request or solicitation is likely to cause affront or alarm." Section 566.095.¹ Moore's appeal challenges the statute on its face as an unconstitutional infringement on the right of free speech.²

Because the sexual contact that Moore requested of a 13-year-old girl would — if `engaged in — be statutory sodomy, the request occurred in circumstances he knew were likely to cause affront or alarm. On this appeal, Moore, age 61, does not challenge the fact that his solicitation of a 13-year-old girl to engage in oral sex did cause affront or alarm.

Though free-speech concerns raised by Moore require the statute to be read narrowly, that reading is not so narrow as to relieve Moore of his criminal conviction.

The judgment is affirmed.

Facts

Moore entered a restaurant in Springfield, Missouri on November 4, 2000. A frequent patron of the restaurant for several months, Moore was affectionately called "Grandpa" by the employees and fellow patrons of the restaurant. One such employee was a 13-year-old girl, T.N.F., whose family owns the restaurant.

During the course of a conversation on November 4, 2000, Moore asked T.N.F. if she was a good dancer, to which T.N.F. answered yes. Moore then told T.N.F. that she could go home with him and give him a lap dance. Moore asked T.N.F. if she had "ever had sex," to which T.N.F. answered that she had not. Moore followed up by asking T.N.F. if she "ever gave head or been eaten out." T.N.F. interpreted the terms "giving head" or "been eaten out" as references to oral sex. Moore told T.N.F. that she would have a chance to do these things at his house, to which she replied "I don't know." T.N.F. said she was "scared" at this point. Before leaving the restaurant, Moore told T.N.F. that he would kill her if she told her mother or anybody about the conversation.

Moore returned to the restaurant two days later. When T.N.F. saw Moore, she became afraid and upset and told someone at the restaurant about the conversation with Moore two days earlier. Shortly thereafter, the police arrived. After reading Moore his Miranda rights, Officer Calhoun, of the Springfield police department, spoke with Moore about the allegations that he solicited sex from T.N.F. During the conversation, Moore admitted to Officer Calhoun that he had a conversation with T.N.F. about sex and specifically had asked her if "she had ever given head or had she ever been eating out-eaten out." However, Moore denied that he asked T.N.F. if she wanted him to teach her how to perform oral sex and denied soliciting or requesting sex from T.N.F.

Officer Calhoun then arrested Moore, who was convicted of sexual misconduct in the third degree, a misdemeanor, in a trial to the court without a jury. He was sentenced to two years' probation and required to register as a sex offender. See section 589.400.

Moore's Standing and the Constitutional Challenge

Moore argues that the statute renders criminal a broad array of speech that is constitutionally protected. He cites, for example, Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), in which the United States Supreme Court struck down a federal statute prohibiting "indecent" and "patently offensive" communications on the Internet. If what the statute prohibits is speech with sexual content, making such speech a criminal act would violate the First Amendment to the United States Constitution and Art. I, sec. 8 of the Missouri Constitution. Id.³

Moore raises a First Amendment challenge to the statute "on its face." Moore does not challenge the statute as it may apply to his own conduct, but as it applies to the speech activities of others. Usually, a person lacks standing to attack the validity of a statute on grounds of how it applies to someone else. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). But challenges based upon the First Amendment are sometimes an exception.⁴ Such a challenge asserts that, while a narrowly drawn statute could prohibit his activity, the challenged statute is so overbroad as to include speech that is constitutionally protected. See State v. Carpenter, 736 S.W.2d 406, 407 ( Mo. banc 1987), citing Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Criminal statutes require particularly careful scrutiny, and "those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application." City of Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987).

In this case the state concedes that Moore does have standing to challenge the constitutionality of section 566.090. The United States Supreme Court has held that, under the justiciability standards of Article III of the United States Constitution applicable to the federal courts, parties cannot concede standing and courts have an obligation to satisfy themselves that the parties have standing; see Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). For this Court's purposes, the state's concession at least bolsters Moore's argument. See also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). The state's concession is appropriate in light of State v. Carpenter, 736 S.W.2d 406, under which Moore would have standing to challenge the statute on its face.

A statute should fall only if it is "substantially overbroad and not readily reconstructed to avoid privileged activity... [because if it] is not substantially overbroad [it] is unlikely to have a drastic inhibitory impact." Note, The First Amendment Overbreadth Doctrine, 83 HARV. L.REV. 844, 918 (1970). The United States Supreme Court adopted this position in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) where the Court said:" ... where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick, 413 U.S. at 615, 93 S.Ct. 2908.

This Court in State v. Helgoth, 691 S.W.2d 281 ( Mo. banc 1985), adopted the averbreadth standard announced by the United States Supreme Court in Broad-rick. First, this Court said that "the overbreadth doctrine is strong medicine and must be employed with hesitation, and then only as a last resort." Helgoth, 691 S.W.2d at 285, (citing New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)). Second, this Court said the function of the overbreadth doctrine "attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct." Id. The statute at issue before this Court seems to involve both conduct, which the state can declare to be a crime, and speech.

As these cases make clear, First Amendment principles do not always require that a statute be struck down even though it is broadly drawn. "If the statute may fairly be construed in a manner which limits its application to a `core' of unprotected expression, it may be upheld against the charge that it is overly broad." State v. Carpenter, 736 S.W.2d at 408 (Blackmar, J., dissenting); see also, City of Houston, 482 U.S. at 459, 107 S.Ct. 2502, and Richard H.Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 886-887 (1991).

The Statute and its Interpretation

To interpret the statute properly it should be read carefully and in its entirety, with particular attention to what conduct a person must know is prohibited. In its entirety, the statute, section 566.095, provides:

1. A person commits the crime of sexual misconduct in the third degree if he solicits or requests another person to engage in sexual conduct under circumstances in which he knows that his requests or solicitation is likely to cause affront or alarm.

2. Sexual misconduct in the third degree is a class C misdemeanor. (Emphasis added.)

"But words are words," Shakespeare wrote. "I never yet did hear/ That the bruised heart was pierced though the ear." ⁵

As the emphasized words of the statute make clear, this is not a mere prohibition of speech. The circumstances, which go beyond words, must be likely to cause "affront" or "alarm."⁶

In the context in which "affront" and "alarm" are used in section 566.095, what is prohibited are sexual requests or solicitations that the defendant knows are likely to cause such a reaction. To be impolite is not enough. To be annoying is insufficient. The words "affront or alarm" convey, respectively, a deliberate offense or a feeling of danger. At the least, real emotional turmoil must result.

While experiencing "affront or alarm" can be found after a defendant's verbal behavior has occurred, application of the statute cannot depend on the idiosyncratic reaction of the person whose sexual favors have been solicited. What are "circumstances in which he knows" at the time he makes the request that it is "likely to cause affront or alarm?" If this is simply the law's way of saying a person should know better, it falls to the courts to ascertain, by reference to the statute's words, what the...