State v. Neighbors, 72713

• Decision Date: 22 December 1995
• Docket Number: No. 72713,72713
• Citation: 908 P.2d 649,21 Kan.App.2d 824
• Parties: STATE of Kansas, Appellee, v. Carrie NEIGHBORS, Appellant.
• Court: Kansas Court of Appeals

Page 649

908 P.2d 649

21 Kan.App.2d 824

STATE of Kansas, Appellee, v. Carrie NEIGHBORS, Appellant.

No. 72713.

Court of Appeals of Kansas.

Dec. 22, 1995.

Syllabus by the Court

1. The test to determine whether a criminal statute is unconstitutionally vague is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.

2. In determining whether a statute is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement.

3. K.S.A.1994 Supp. 21-4201(a)(1) is construed and applied.

4. The extent of the examination of jurors during voir dire is within the discretion of the trial court. The appellate court will not interfere unless an abuse of discretion is clearly shown.

5. A trial court has discretion in giving instructions to the jury, and, on appeal, the instructions should be approved if, after being considered in their entirety, they properly and fairly state the law as applied to the facts in the case.

Patrick S. Levy, Lawrence, for appellant.

Gayle B. Armstrong, Assistant District Attorney, Mark A. Knight, District Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before ROYSE, P.J., and ELLIOTT and PIERRON, JJ.

ROYSE, Presiding Judge:

Carrie Neighbors was convicted by a jury of one count of selling or offering for sale throwing stars and metal knuckles in violation of K.S.A.1994 Supp. 21-4201(a)(1). She appeals, arguing (1) the statute is unconstitutionally vague and overbroad; (2) the trial court erred in refusing to allow the defense to question prospective jurors about their feelings concerning interracial marriages; and (3) the trial court erred in its instructions to the jury.

Neighbors and her husband own the Yellow House Variety Store in Lawrence, Kansas. They sell novelty items, leather jackets, jewelry, electronics, and used appliances. On December 2, 1993, Officer Damon Thomas of the Lawrence Police Department entered the store. Thomas was in plain clothes. He asked the clerk to see "the stars." He looked through a basketful of stars and purchased two. One of the stars had a small hole in it, the other did not. When he returned to the station, Thomas tested the stars by throwing them at some trees to see if the stars would stick. Both stars did stick several times, becoming embedded in the trees up to an inch.

The following day, Detective M.T. Brown went to the store. He was in plain clothes. He asked Neighbors if items in the display case were throwing stars, and she replied that they were. Brown purchased one throwing star.

Later, Detective Dan Ward and other police officers went to the store with a search warrant and confiscated the rest of the throwing stars. Ward also confiscated what he believed to be two metal knuckles, one which looked like the handle of a knife and one which was identified as a "brass buckle."

Neighbors was charged with one count of willfully and unlawfully selling throwing stars and metal knuckles, in violation of K.S.A.1994 Supp. 21-4201(a)(1). That statute provides:

"(a) Criminal use of weapons is knowingly:

(1) Selling, manufacturing, purchasing, possessing or carrying any bludgeon, sandclub, metal knuckles or throwing star, or any knife, commonly referred to as a switch-blade, which has a blade that opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife, or any knife having a blade that opens or falls or is ejected into position by the force of gravity or by an outward, downward or centrifugal thrust or movement."

The term "throwing star" means "any instrument, without handles, consisting of a metal plate having three or more radiating points with one or more sharp edges and designed in the shape of a polygon, trefoil, cross, star, diamond or other geometric shape, manufactured for use as a weapon for throwing." 21-4201(h).

VAGUENESS

Neighbors' first argument on appeal is that K.S.A.1994 Supp. 21-4201 is unconstitutionally vague. She argues that the statute is impermissibly vague because it does not define such terms as "metal knuckles" and, thus, does not make clear whether the item must be intended for use as a weapon.

A statute is presumed constitutional, and all doubt must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. State v. Scherzer, 254 Kan. 926, Syl. p 6, 869 P.2d 729 (1994).

A statute must be sufficiently definite to meet due process standards. The test to determine whether a criminal statute is unconstitutionally vague is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983). In determining whether a statute is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement. See City of Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270 (1990).

Neighbors argues that under the reasoning of Cardarella v. City of Overland Park, 228 Kan. 698, 620 P.2d 1122 (1980), K.S.A.1994 Supp. 21-4201(a) is unconstitutionally vague. In Cardarella, the Supreme Court addressed a vagueness challenge to an ordinance that restricted the sale or display of items designed or intended for use as drug paraphernalia. Cardarella argued that some of the prohibited items could have both legitimate and illegitimate uses, and a merchant, therefore, would not have fair warning of what sales were forbidden. The Supreme Court rejected this argument, noting the ordinance required proof that the seller intended the items to be used as drug paraphernalia and enumerated five factors for determining the seller's intent. Those factors were clearly set out in the ordinance and provided fair warning to a merchant as to whether the sale of the items would be lawful or unlawful. 228 Kan. at 704-05, 620 P.2d 1122.

Neighbors' reliance on Cardarella is misplaced. She assumes that the statute draws a line between legitimate and illegitimate uses for metal knuckles. This assumption is incorrect. K.S.A.1994 Supp. 21-4201(a) makes unlawful the sale of all metal knuckles, regardless of their intended use. See People v. Ferguson, 129 Cal.App. 300, 304, 18 P.2d 741 (1933) (legislative ban reflects recognition that metal knuckles are "known to be the tools of the brawl fighter and cowardly assassin and of no beneficial use whatever to a good citizen or to society").

The statute clearly sets forth the particular items within its scope. A person of common intelligence need not guess whether the statute forbids the sale of metal knuckles, regardless of whether they are characterized as paperweights, belt buckles, historic replicas, or wall hangings.

Neighbors also complains the statute is vague because it fails to specify the requisite intent. This argument is without merit.

K.S.A.1994 Supp. 21-3201 states that except as otherwise provided, criminal intent is an essential element of every crime. Criminal intent may be established by proof that the defendant's conduct was intentional or reckless. Proof of intentional conduct is required, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner. Intentional conduct is defined as conduct that is purposeful and willful and not accidental. The term "knowing" is one of the terms included within the term "intentional." See State v. Mountjoy, 257 Kan. 163, 169-70, 891 P.2d 376 (1995).

K.S.A.1994 Supp. 21-4201(a) requires proof that the prohibited conduct is performed "knowingly." The statute, therefore, contains the element of criminal intent as required by K.S.A.1994 Supp. 21-3201.

Neighbors' final vagueness argument is that the statute is vague because it fails to guard against arbitrary and discriminatory enforcement. This argument is likewise without merit.

Neighbors points to testimony showing that one purchaser of a throwing star has been prosecuted, but no other persons have been prosecuted for selling throwing stars in Douglas County. She also points to the fact that the Lawrence Police Department has not investigated the Tennessee wholesaler which supplied Neighbors' throwing stars and metal knuckles. This testimony does not establish discriminatory or selective enforcement of the law resulting from vagueness in the statutory language. "The mere fact the appellants were the first to be prosecuted under the law does not alone establish [that Douglas County officials] engaged in arbitrary enforcement of the law." State v. Dunn, 233 Kan. at 425, 662 P.2d 1286.

K.S.A.1994 Supp. 21-4201(a) provides adequate guidelines so that law enforcement officials are not left arbitrarily to decide whether an item is within its scope. The statute is sufficiently precise to guard against arbitrary and discriminatory enforcement. Neighbors' vagueness argument fails.

OVERBREADTH

Neighbors' second issue is whether the statute is unconstitutionally overbroad. "A statute which is overbroad makes conduct criminal which is constitutionally protected." State v. Allen &...