State v. Myles

• Citation: 127 Wn.2d 807,903 P.2d 979
• Decision Date: 19 October 1995
• Docket Number: No. 62346-5,62346-5
• Court: United States State Supreme Court of Washington
• Parties: The STATE of Washington, Petitioner, v. Dalona S. MYLES, Respondent.

Page 807

127 Wn.2d 807

903 P.2d 979

The STATE of Washington, Petitioner, v. Dalona S. MYLES, Respondent.

No. 62346-5.

Supreme Court of Washington,

En Banc.

Oct. 19, 1995.

As Amended Nov. 14, 1995.

Douglas J. Ende, Vashon, Nielsen & Acosta, Eric Nielsen, Seattle, for respondent.

Norm Maleng, King County Prosecutor, Gregory E. Jackson, Deputy, Seattle, for petitioner.

MADSEN, Justice.

Respondent Dalona S. Myles was convicted of unlawful possession of a dangerous weapon in violation of RCW 9.41.250. At issue is the constitutionality of the statute as applied to the facts in this case, and the sufficiency of the evidence supporting Myles conviction under the statute. The Court of Appeals reversed Myles conviction on the stated basis that there was insufficient evidence. We reverse the Court of Appeals and affirm the conviction.

FACTS

Under RCW 9.41.250, a person who furtively carries a dangerous weapon with the intent to conceal is guilty of a gross misdemeanor. The information in this case alleged that on September 1, 1992, Myles "did furtively carry with intent to conceal a dangerous weapon, to wit: a knife...." Count 1, Clerk's Papers, at 1.

State's witness, Officer Angela Johnson, testified that on September 1, 1992, she was dispatched to the intersection of 30th Avenue and East Republican in Seattle as a result of a 911 call reporting a fight or disturbance. Upon arrival, Johnson saw Myles, then age 16, and two or three other people at a corner of the intersection, and a larger group of five to ten people on the other side of the street. Johnson testified that Myles was yelling threats and swearing at the larger group of people. Johnson got out of her car, approached Myles, and asked what was going on. Johnson testified that Myles said "I'm going to kick your ass, you ... bitch." Report of Proceedings, at 5. Johnson testified that at the time Myles had her hands in her coat pockets and "appeared to be reaching for something...." Report of Proceedings, at 5. Johnson testified she thought it might be a weapon, and testified that as she approached, Myles continued to swear and act aggressive toward Johnson.

Officer Johnson took Myles to the patrol car, and patted her down for weapons by feeling open handed along the outside of her clothing. When she patted down the left side of Myles' coat, she felt "something that was hard" which she thought might be a weapon. Report of Proceedings, at 6. The object was a paring knife with a fixed serrated blade. The knife was not found in a pocket into which Myles had put her hands, but instead was found in the left inside pocket behind one of the pockets where Myles' hands were.

The juvenile court found that the knife was a dangerous weapon. The court found Myles guilty of possession of a dangerous weapon in violation of RCW 9.41.250. She was convicted as charged and sentenced to two months of community supervision and eight hours of community service.

Myles appealed, arguing among other things that there was insufficient evidence to support finding of fact 6, and arguing that RCW 9.41.250 is unconstitutionally vague. The Court of Appeals reasoned that the statute would survive a vagueness challenge only if it is construed as requiring an overt movement as an element of the crime, i.e., a "movement to conceal a weapon, done furtively, in a way meant to escape notice." State v. Myles, 75 Wash.App. 643, 647, 879 P.2d 968 (1994), review granted, 126 Wash.2d 1001, 891 P.2d 38 (1995). The court said, however, that because there was insufficient evidence to support the conviction, it was unnecessary to decide the constitutional question. Myles, 75 Wash.App. at 647, 879 P.2d 968. The court reversed the conviction and dismissed the charge. The State's petition for review was granted.

I

Former RCW 9.41.250 provided in part:

Every person ... who shall furtively carry with intent to conceal any dagger, dirk, pistol, or other dangerous weapon ... shall be guilty of a gross misdemeanor.

Laws of 1957, ch. 93, § 1. ¹

Although the Court of Appeals purported to decide this case solely on Myles' sufficiency of the evidence challenge, that court assessed the sufficiency of the evidence based upon its assumption that the statute requires a furtive overt movement in order to survive a vagueness challenge. Thus, the court effectively decided the constitutional question.

The first issue, then, is whether the Court of Appeals erred by construing the applicable provision in RCW 9.41.250 as requiring a furtive overt movement in order to save it from a vagueness challenge. ² Myles has not referred to the Washington Constitution nor engaged in a Gunwall analysis (State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986)). Accordingly, her due process claim will be decided under federal constitutional law. See Spokane v. Douglass, 115 Wash.2d 171, 176-77, 795 P.2d 693 (1990).

Under the Fourteenth Amendment's Due Process Clause, a statute is void for vagueness if it "does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed" or if it "does not provide ascertainable standards of guilt to protect against arbitrary enforcement." Douglass, at 178, 795 P.2d 693; see Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). When assessing a statute under the second prong of the vagueness test, the court examines the terms of the statute to see if they contain adequate standards to guide law enforcement officials. See, e.g., Tacoma v. Luvene, 118 Wash.2d 826, 846-47, 827 P.2d 1374 (1992). The question primarily is whether the statute "proscribes conduct by resort to 'inherently subjective terms.' " Douglass, 115 Wash.2d at 181, 795 P.2d 693 (quoting State v. Maciolek, 101 Wash.2d 259, 267, 676 P.2d 996 (1984)). The fact that the statute may require a subjective evaluation by a law enforcement officer does not render the statute unconstitutional; only if the statute invites an inordinate amount of discretion is it unconstitutional. Douglass, 115 Wash.2d at 181, 795 P.2d 693.

Two principles limit the otherwise broad sweep of the vagueness doctrine. State v. Halstien, 122 Wash.2d 109, 118, 857 P.2d 270 (1993). First is the principle that a statute is presumed to be constitutional and a party challenging its constitutionality bears the burden of proving its unconstitutionality beyond a reasonable doubt. Halstien, at 118, 857 P.2d 270. Second,

"impossible standards of specificity" or "mathematical certainty" are not required because some degree of vagueness is inherent in the use of language. [Seattle v.] Eze, 111 Wash.2d [22,] 26-27[, 759 P.2d 366, 78 A.L.R.4th 1115 (1988) ]; Haley [v. Medical Disciplinary Bd.], 117 Wash.2d [720,] 740[, 818 P.2d 1062 (1991) ]. "Consequently, a statute is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his [or her] actions would be classified as prohibited conduct". Eze, 111 Wash.2d at 27 .

Halstien, at 118, 857 P.2d 270.

RCW 9.41.250 contains both a description of the proscribed criminal conduct and the requisite criminal intent. The forbidden conduct under this statute is the furtive carrying of any dagger, dirk, pistol, or other dangerous weapon. ³ The word "furtively" is an adverb, Webster's Third New International Dictionary 924 (1966), which in RCW 9.41.250 modifies "carry," and describes the manner in which the dangerous weapon is carried. "Furtively" means "in a furtive manner." Webster's, at 924. "Furtive" means "done by stealth: SECRET, SURREPTITIOUS" and "expressive of stealth: SNEAKY, SLY...." Webster's, at 924. Thus, "furtively carry" means to carry stealthily, secretly, sneakily, or slyly. Although there is no challenge directed to the term "carry," for completeness we note that synonyms are "bear," "convey," "transport," "transmit," and applicable definitions include "to move while supporting," and "to hold, wear, or have upon one's person." Webster's, at 343. Thus, one need not carry the weapon in one's hand. "Carrying" includes to have on one's person.

The plain language of the statute informs the public that no person may furtively or secretly carry a dangerous weapon when such conduct is engaged in with the intent to conceal the dangerous weapon. An ordinary person should be able to tell that carrying a knife constituting a dangerous weapon in an inside coat pocket, i.e., carrying it stealthily or secretly, with the intent to conceal that weapon, violates the statute. Accordingly, the statute survives the first prong of the vagueness challenge, because it defines the offense with sufficient definiteness to inform ordinary people what conduct is proscribed.

To survive the second prong of a vagueness challenge, the statute must provide ascertainable standards of guilt. In this regard, an intent element in a statute may provide a sufficient limit on police discretion. Tacoma v. Luvene, 118 Wash.2d 826, 847, 827 P.2d 1374 (1992). The Court of Appeals reasoned that concealing is not criminal, and therefore the "intent to conceal" element in this statute is an insufficient limit on police discretion. To survive a vagueness challenge, the Court of Appeals reasoned, the word "furtive" must be construed as describing an activity that expresses the hidden motive. The court said that merely carrying an item does not usually involve identifiable conduct because it is not an overt movement. Therefore, the Court of Appeals further reasoned, an overt movement, done furtively, in a way meant to escape notice is required. Myles, 75 Wash.App. at 646-47, 879 P.2d 968.

This conclusion is erroneous for two reasons. First, in a vagueness challenge the court does not analyze portions of a statute in isolation; instead, a statute is viewed as a whole to see if it has the required degree of specificity. Haley v. Medical Disciplinary Bd., 117 Wash.2d 720, 741, 818 P.2d 1062 (19...