State v. Nieberger

• Decision Date: 12 January 2006
• Docket Number: No. 20040907-CA.,20040907-CA.
• Citation: 128 P.3d 1223,2006 UT App 5
• Parties: STATE of Utah, Plaintiff and Appellee, v. Kathleen Maria NIEBERGER, Defendant and Appellant.
• Court: Utah Court of Appeals

128 P.3d 1223

2006 UT App 5

STATE of Utah, Plaintiff and Appellee, v. Kathleen Maria NIEBERGER, Defendant and Appellant.

No. 20040907-CA.

Court of Appeals of Utah.

January 12, 2006.

COPYRIGHT MATERIAL OMITTED

Shannon N. Romero, Joan C. Watt, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General's Office, Laura B. Dupaix, Assistant Attorney General, Salt Lake City, for Appellee.

Before BENCH, P.J., and BILLINGS, and THORNE, JJ.

OPINION

THORNE, Judge:

¶ 1 Kathleen Nieberger appeals the trial court's denial of her motion to quash bindover on two counts of endangerment of a child, a third degree felony. See Utah Code Ann. § 76-5-112.5 (2003). We affirm and remand for further proceedings.

BACKGROUND

¶ 2 In December 2003, police officers executed a search warrant at the home of Nieberger and her husband. The Niebergers had two children, ages two and three, who resided with them in the home. Nieberger spoke with police at the time of the search and told them that her husband had been selling marijuana for five years. She also admitted that she used marijuana occasionally and that marijuana and paraphernalia found on the living room entertainment center belonged to her. The shelf on which these materials were found was some five to six feet off the ground.

¶ 3 Police found other controlled substances and paraphernalia throughout Nieberger's house. These items included several ounces of marijuana in a cabinet above the kitchen counter, a metal pipe with marijuana residue in a kitchen drawer, a Valium pill in a baggie on the kitchen counter, a bong sitting on a television stand in the basement, and a broken bong on the floor of the master bedroom closet.

¶ 4 The State charged Nieberger with two counts of child endangerment, see Utah Code Ann. § 76-5-112.5, as well as two other drugrelated counts that are not at issue in this appeal. A preliminary hearing was held, and the trial court bound Nieberger over for trial on all four counts. Nieberger then filed a motion seeking to quash the bindover on the child endangerment counts and to have Utah Code section 76-5-112.5 declared unconstitutional. See id. The trial court denied Nieberger's motion, and this court granted her request to appeal from that interlocutory order.

ISSUES AND STANDARDS OF REVIEW

¶ 5 Nieberger's appeal challenges the child endangerment statute's constitutionality on vagueness grounds, and challenges the trial court's finding of probable cause for bindover on the two child endangerment counts.

¶ 6 A constitutional challenge to a statute presents a question of law that we review for correctness. See State v. Willis, 2004 UT 93, ¶ 4, 100 P.3d 1218. "When addressing a constitutional challenge to a statute, we presume that the statute is valid and resolve any reasonable doubts in favor of constitutionality." Id.

¶ 7 "The determination of whether to bind a criminal defendant over for trial is a question of law." State v. Clark, 2001 UT 9, ¶ 8, 20 P.3d 300. "Accordingly, we review that determination without deference to the court below." Id.

ANALYSIS

¶ 8 Nieberger was bound over under Utah Code section 76-5-112.5, which states that "any person who knowingly or intentionally causes or permits a child or elder adult to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia ... is guilty of a felony of the third degree." Utah Code Ann. § 76-5-112.5(2). The statute defines "controlled substance," "chemical substance," and "drug paraphernalia," as well as "child" and "elder adult."¹ The statute does not provide definitions for "exposed to," "ingest or inhale," or "have contact with."

¶ 9 Nieberger argues on appeal that Utah Code section 76-5-112.5 is void for vagueness because of the undefined term "exposed to." She also argues that, under any permissible construction of the statute, the State did not produce sufficient evidence to bind her over for trial on child endangerment charges.

I. Constitutionality of Utah Code Section 76-5-112.5

¶ 10 Nieberger's constitutional challenge to Utah's child endangerment statute rests solely on the "void-for-vagueness" doctrine. See State v. Green, 2004 UT 76, ¶¶ 42-52, 99 P.3d 820 (analyzing vagueness challenge to Utah's bigamy statute). Nieberger argues that section 76-5-112.5 lacks "`sufficient definiteness [such] that ordinary people can understand what conduct is prohibited'" and is so vague that it "`encourage[s] arbitrary and discriminatory enforcement.'" Id. at ¶ 43 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)).

¶ 11 We first examine whether the statute is sufficiently definite to have adequately warned Nieberger that her alleged conduct was illegal. Nieberger argues that the term "exposed to" in the statute is so vague in its meaning that she could not have been aware that her conduct would fall within its definition.² Utah Code Ann. § 76-5-112.5(2). She characterizes her prosecution as being based solely on possession of "marijuana and paraphernalia out of reach in a house where children live." We disagree with her characterization of the evidence against her, and hold that the term "exposed to" is not vague as applied to the facts and inferences presented at the preliminary hearing.

¶ 12 Nieberger substantially understates the evidence presented at the preliminary hearing. Police found controlled substances and drug paraphernalia in the living room, kitchen, basement, and master bedroom of Nieberger's home. Nieberger admitted that her husband had been selling marijuana for five years, that she occasionally used marijuana herself, and that marijuana and a pipe found in plain view in the living room belonged to her. Nieberger's children, two and three years old, lived in the home, and there is nothing to suggest that they lacked the ordinary mobility, perception, or curiosity that could be expected of children that age.³ Nor does the record suggest that the children were in any way restricted from accessing the rooms where the various items were found. These circumstances present a much stronger inference of exposure than the mere possession of marijuana in a home where children reside.

¶ 13 Nevertheless, Nieberger argues that the need to avoid vagueness requires a narrow definition of "exposed to," as well as some implied requirement of risk of actual harm to the victim. Examination of section 76-5-112.5's evolution⁴ indicates that neither of these suggestions is appropriate. Prior to 2002, section 76-5-112.5 prohibited placing protected persons "at risk of suffering bodily injury, substantial bodily injury, or serious bodily injury from exposure to, ingestion of, inhalation of, or contact with a controlled substance, chemical substance, or drug paraphernalia." Utah Code Ann. § 76-5-112.5 (Supp.2000). In 2002, the legislature amended the statute to its current form, removing the risk element and replacing it with "causes or permits a child or elder adult to be exposed to, to ingest or inhale, or to have contact with" the enumerated materials. Id. § 76-5-112.5 (2003).

¶ 14 We draw two conclusions from this amendment. First, contrary to Nieberger's argument, the legislature's express deletion of a risk element precludes us from writing such an element back into the statute. "The omission of the element in the revised statute logically can mean nothing but that the legislature's purpose deliberately was to remove [risk] as an element of the offense." State v. Delmotte, 665 P.2d 1314, 1315 (Utah 1983). Second, the pre-2002 statute applied to any form of exposure that resulted in a risk of bodily injury to a protected person. The "exposed to" element described a broad range of circumstances, but the reach of the statute was substantially limited by the requirement of actual risk. The removal of the risk element did nothing to change the original broad intent of the "exposed to" element, but rather expanded the statute's prohibition to all exposures, regardless of risk.⁵

¶ 15 We determine that a person of ordinary intelligence would understand that the facts presented at Nieberger's preliminary hearing, if proven with the applicable degree of mens rea, could support a conviction for child endangerment on an "exposed to" theory. Black's Law Dictionary defines "expose" as "[t]o show publicly, to display" and

[t]o place in a position where the object spoken of is open to danger, or where it is near or accessible to anything that may affect it detrimentally; as, to "expose" a child, or to expose oneself or another to a contagious disease or to danger or hazard of any kind.

Black's Law Dictionary 579 (6th ed.1990). Lay definitions of "expose" include "to ... subject to risk from a harmful action or condition," "to submit or make accessible to a particular action or influence," and "to cause to be visible or open to view." Merriam Webster's Collegiate Dictionary 410 (10th ed.1993). We cannot say that a person of ordinary intelligence would not place Nieberger's alleged actions, and the reasonable inferences available in this case, within the bounds of these broad definitions. Accordingly, Nieberger should have been on notice that her alleged actions might violate the statute. Cf. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 96 L.Ed. 367 (1952) (noting that "one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line").

¶ 16 Having concluded that the statute is sufficiently definite to have notified Nieberger that her alleged conduct was prohibited, we turn next to whether the statute is sufficiently definite so as to discourage arbitrary and discriminatory enforcement. See State v. Green, 2004 UT 76, ¶ 50, 99 P.3d 820; see also Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). "The United States Supreme Court has stated...