State v. Sailer, s. 9412009559 and 9412009572

• Decision Date: 31 August 1995
• Docket Number: Nos. 9412009559 and 9412009572,s. 9412009559 and 9412009572
• Citation: 684 A.2d 1247
• Parties: STATE of Delaware, v. John and Pamela SAILER, Defendants. ID . Submitted:
• Court: Delaware Superior Court

Page 1247

684 A.2d 1247

STATE of Delaware, v. John and Pamela SAILER, Defendants.

ID Nos. 9412009559 and 9412009572.

Superior Court of Delaware,

New Castle County.

Submitted: Aug. 31, 1995.

Decided: Sept. 13, 1995.

Thomas A. Stevens, and James B. Ropp, Department of Justice, Wilmington, for the State of Delaware.

Carl Schnee, and Ralph K. Durstein, III, Wilmington, for defendants.

OPINION ^*

CARPENTER, Judge.

On February 6, 1995, the grand jury returned a sixteen count indictment against the defendants John and Pamela Sailer. Count I, Exploitation of an Infirm Adult, alleges that the defendants:

did intentionally exploit Agnes Rick, an infirm adult, by using her resources or rights, [valued at over $500.00], by causing Agnes Rick to execute documents which transferred ownership of her undeveloped real estate located in or near Bear, Delaware....

Count III, also charging Exploitation of an Infirm Adult, alleges that the defendants:

did intentionally exploit Agnes Rick, an infirm adult, by using her resources or rights, [valued at over $500.00], by causing Agnes Rick to spend more than $500.00 for repairs and improvements to her house ... and thereafter causing her to execute a will in which John Sailer became the beneficiary of an option to purchase said house from her estate for $160,000.00, an amount below fair market value.

The defendants have moved to dismiss the foregoing charges alleging the statute is unconstitutionally vague. Additionally, the defendants have moved to dismiss Counts XIV and XV on the basis that they fail to allege an offense. These counts charge John Sailer with Second Degree Perjury for the June 10, 1992 execution of a Realty Transfer Tax Return and Affidavit of Gain and Value.

A. Exploitation of an Infirm Adult Statute

The Sailers first contend that 31 Del.C. § 3913 is unconstitutionally vague because the statute failed to adequately notify the defendants of what conduct would violate the statute. ¹ The "void for vagueness" doctrine applies to statutes that prohibit criminal conduct, and to the Court's best knowledge, its application to this particular statute is a case of first impression in Delaware. The defendants assert several grounds in support of their position, and the Court will individually address each one.

"A statute or ordinance is unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that his contemplated behavior is forbidden by the statute, or if it encourages arbitrary and erratic enforcement." United Video Concepts, Inc. v. City of Dover, Del.Super., C.A. No. 93A-10-004, Ridgely, P.J., 1994 WL 682321 (Oct. 31, 1994), Mem.Op. at 6 (citing Sanders v. State, Del.Supr., 585 A.2d 117, 127 (1990)); see also Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982); Connally v. General Constr. Co., 269 U.S. 385, 391-92, 46 S.Ct. 126, 127-28, 70 L.Ed. 322 (1926). When First Amendment issues are not implicated, "the litigant must demonstrate that the statute under attack is vague as applied to his own conduct, regardless of its potentially vague application to others." In re Hanks, Del.Supr., 553 A.2d 1171, 1176 (1989) (quoted in Johnson v. State, Del.Supr., No. 414, 1990, Holland, J., 1991 WL 279843 (Nov. 27, 1991) (Order), at 9). Therefore, the Sailers must confine their argument to the facts and circumstances of this case. State v. General Chemical Corp., Del.Super., 559 A.2d 292, 295 (1988) (asserting that defendant's vagueness argument need only be examined "in light of all of the circumstances surrounding this case").

In addition, the United States Supreme Court has also recognized that "the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea." Colautti v. Franklin, 439 U.S. 379, 395 n. 13, 99 S.Ct. 675, 685 n. 13, 58 L.Ed.2d 596 (1979). While "the requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain ... it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware." Id. (quoting Screws v. United States, 325 U.S. 91, 101-02, 65 S.Ct. 1031, 1035-36, 89 L.Ed. 1495 (1995), (plurality opinion)). See, e.g., Village of Hoffman Estates, at 499, 102 S.Ct. at 1193-94 (recognizing that a scienter requirement may mitigate a law's vagueness); Robinson v. State, 600 A.2d 356, 365 (1991).

The Sailers argue that the legislature failed to adequately define the term "exploit" as used in the statute. "Exploitation" is defined as "the illegal or improper use or abuse of an infirm person, his resources or his rights, by another person, whether for profit or other advantage." 31 Del.C. § 3902(5) (1974) (definitional section). They assert that the use of the terms "illegal" and "improper" to describe "exploit" leaves the statute unconstitutionally vague because "[t]he terms 'illegal' and 'improper' are defined neither in the definition section of the statute nor by reference to any other criminal statute." (Def.'s Mem., April 13, 1995, at 2). The defendants rely solely on the case of Cuda v. State, Fla., 639 So.2d 22 (1994), to support such contention. In Cuda, the Supreme Court of Florida struck down a similar statute finding it unconstitutionally vague for failure to define the words "improper or illegal." ² The Court, however, declines to adopt the reasoning of the Florida Supreme Court.

This Court believes that the statute at bar is constitutionally sound in light of several factors. First, the Exploitation of an Infirm Adult statute is found in Title 31, Chapter 39 of the Delaware Code, governing Adult Protective Services. The title is carefully crafted, in that it includes not only a definitional section, but also a section outlining the legislative intent underlying the statute. Section 3901 defines the legislative intent of the Delaware General Assembly as follows:

The General Assembly recognizes that many adult citizens of this State are subject to psychological or physical injury or exploitation because of physical or mental infirmity, disease or other causes which render them incapable of providing for their basic daily living needs. The General Assembly, therefore, intends through this chapter to establish a system of services for impaired adults designed to protect their health, safety and welfare.

31 Del.C. § 3901.

Given the specific delineation of legislative intent in the statute, the Court does not have to go far to discern to whom and to what conduct the statute applies. Second, the statute is clearly confined to "intentional" conduct, and this factor also lends itself toward a constitutional interpretation. See Robinson v. State, 600 A.2d at 365. Third, when a statute is challenged for vagueness, this Court has an obligation to attempt to construe the statute in such a manner as to avoid the infirmity. General Chemical Corp., 559 A.2d at 295; accord United Video Concepts, supra, at 8. Moreover, when possible, the statute should be construed in a manner consistent with the legislative intention. 559 A.2d at 295. Finally, "[a] court has a duty to read statutory language so as to avoid constitutional questionability and patent absurdity and to give language its reasonable and suitable meaning.... Furthermore, it is well-settled that undefined code terms must be construed according to their common and approved usage." Moore v. Wilmington Housing Authority, Del.Supr., 619 A.2d 1166, 1173 (1993) (en banc) (citations omitted). See also 11 Del.C. § 221(c) (mandating...