State v. Self

• Decision Date: 15 February 2005
• Docket Number: No. SC 85662.,SC 85662.
• Citation: 155 S.W.3d 756
• Parties: STATE of Missouri, Respondent, v. Brenda SELF, Appellant.
• Court: Missouri Supreme Court

155 S.W.3d 756

STATE of Missouri, Respondent, v. Brenda SELF, Appellant.

No. SC 85662.

Supreme Court of Missouri, En Banc.

February 15, 2005.

Garrett C. Andersen, Caruthersville, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, Michael B. Hazel, Prosecuting Atty., Kimberley A. Davenport, Asst. Prosecuting Atty., Caruthersville, for Respondent.

LAURA DENVIR STITH, Judge.

Brenda Self was convicted of failing to cause her child to attend school "regularly" in violation of Missouri's compulsory school attendance law. She appeals, alleging that the phrase "attend school regularly" as used in section 167.031.1 is unconstitutionally vague.¹ While Ms. Self raises constitutional issues regarding the meaning of the phrase "attend school regularly" as used in the statute, this Court need not resolve those issues here, for her conviction must be reversed on other grounds. Where a statute does not itself set forth a culpable mental state, then under section 562.021.3 the State is required to establish that the person acted knowingly or purposely. Here, the State failed to establish that Ms. Self acted purposely or knowingly in failing to cause her child to attend school regularly. Therefore, it failed to prove an essential element of the crime. Double jeopardy precludes retrial when a conviction is reversed because the evidence was legally insufficient. This Court reverses and remands for entry of a judgment of acquittal.

I. FACTUAL AND PROCEDURAL BACKGROUND

During the almost six-month period from August 22, 2002 through February 6, 2003, Brenda Self's fifteen-year-old child, Jennifer, missed approximately 40 days of school at the public school in which she was enrolled.² On February 6, the school reported these absences to the Pemiscot County prosecuting attorney. On March 6, 2003, the prosecutor charged Ms. Self with the class C misdemeanor of failing to cause her child to attend school on a regular basis, in violation of section 167.031, and punishable under section 167.061. Ms. Self entered a plea of not guilty.

Prior to trial, Ms. Self filed a motion to dismiss, alleging that section 167.031 was void for vagueness. The motion was overruled. Ms. Self agreed to waive her right to a jury trial in exchange for a recommendation that the court impose a sentence no greater than fifteen days in jail, execution of which would be suspended, and she would be placed on two years probation.

Ms. Self waived her right to a jury and a bench trial ensued. It was very short, comprising no more than 11 pages of transcript. The trial began with the prosecutor's statement that the parties had reached an oral stipulation that he would recite during opening statement. In full, the prosecutor then stated as follows:

Jennifer Self is the daughter of Brenda Self, the Defendant in this matter. Brenda Self is charged with the care, custody and control of this child. Jennifer Self was born December 24, 1987, making Jennifer 14 and then 15 years old during the academic school year of 2002 and 2003.

This child, at those ages, is subject to the compulsory education laws. During this school year Jennifer Self was living in the home of Brenda Self. Also during this school year between the dates of August 22, 2002 and February 6, 2003, Jennifer Self missed 40 days of school.

The State will present evidence regarding these absences and policies and procedures which are in place with the Caruthersville Accelerated Middle School and how they deal with cases of excessive absences. Due to Mrs. Self's failure to cause Jennifer to attend school on a regular basis, Jennifer Self had to attend summer school to advance to the next level.

At the close of the evidence, the State will ask this Court to find the Defendant guilty and punish her accordingly.

Because no written copy of the stipulation was ever filed, it is not entirely clear which parts of the prosecutor's opening statement are intended to be included in the stipulation. Of course, this was not a guilty plea; the parties could not have intended to stipulate to the prosecutor's assertion of the ultimate issue whether Ms. Self had caused her daughter to fail to attend school regularly, or that the court should enter a judgment of guilty and punish her accordingly. Indeed, even where there is a guilty plea, the court has an independent duty to determine whether the defendant admits the facts essential to the judgment, and legal issues, such as what constitutes a failure to attend school regularly, are legal issues that this Court determines de novo on appeal; they are not matters for stipulation. This Court assumes as true for the purposes of this appeal only the facts stated by the prosecutor in his opening statement; it determines for itself the issues of law before the Court.³

Ms. Self's counsel offered no opening statement and presented only one piece of evidence, the Caruthersville Accelerated Middle School 2002-2003 Student/Parent Handbook, which describes the school's policy regarding attendance. The State's evidence was only slightly more lengthy. The prosecutor introduced Jennifer's attendance record for the almost six-month period at issue and the testimony of Paula DeBoise, the school's deputy juvenile officer, who had begun working at the school after the events in question but was able to identify the attendance record. Neither Ms. Self, Jennifer, nor the principal testified.

Based on the attendance record and the absence policy set out in the school's handbook, the judge found Ms. Self guilty of one count of failure to cause a child to attend school regularly and sentenced her, in accordance with the prosecutor's recommendation, to 15 days in jail, suspended execution of the sentence, and placed her on two years probation. Ms. Self appeals. Because she challenges the constitutionality of a state statute, appeal is directly to this Court. Mo. Const. art. V, sec. 3.

II. VAGUENESS CHALLENGE

The sole point of error Ms. Self raises is that section 167.031.1 of Missouri's compulsory school attendance law is unconstitutionally vague. It states in relevant part:

"A parent, guardian or other person in this state having charge, control, or custody of a child between the ages of seven and sixteen years of age shall cause the child to attend regularly some public, private, parochial, parish, home school or a combination of such schools not less than the entire term of the school which the child attends ..."

Sec. 167.031.1 (emphasis added).

Ms. Self alleges that because section 167.031 does not define what it is to "cause [a] child to attend regularly" some school or combination of schools, this phrase is unconstitutionally vague. In support, she argues that various school districts have interpreted the phrase in inconsistent ways, so that what is acceptable attendance in one district may be referred for prosecution in another district. The State also asks the Court to reach the constitutional issue, stating in oral argument before this Court that it believed that, as a result of the lack of definition of the phrase "attend regularly," school districts could and do interpret this phrase in different ways. The State suggests that the legislature may have intended to give districts flexibility in defining what constitutes regular attendance in that district and that such flexibility is appropriate as circumstances may differ in different areas of the state. The State further argues that the statute makes it permissible for a district to consider even a single missed day as a failure to attend school regularly if this is appropriate in the circumstances.

A statute is unconstitutionally vague if it does not give a person of ordinary intelligence sufficient warning as to the prohibited behavior. Cocktail Fortune, Inc. v. Sup. of Liquor Control, 994 S.W.2d 955, 957 (Mo. banc 1999). The vagueness doctrine is designed to help protect against arbitrary and discriminatory application of laws. State v. Brown, 660 S.W.2d 694, 697 (Mo. banc 1983). When reviewing a vagueness challenge, "it is not necessary to determine if a situation could be imagined in which the language used might be vague or confusing; the language is to be treated by applying it to the facts at hand." State v. Young, 695 S.W.2d 882, 884 (Mo. banc 1985). Accord Cocktail Fortune, 994 S.W.2d at 958-59. If a statute can be applied constitutionally to an individual, that person "will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." State v. Ellis, 853 S.W.2d 440, 446 (Mo.App. E.D.1993), quoting U.S. v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).

These principles are particularly applicable here. If the record before this Court in fact showed that the statute was so indefinite and confusing that the various school districts in this State took contradictory positions as to the meaning of the statutory phrase "cause the child to attend [school] regularly," and that it was being interpreted to make a parent criminally responsible simply upon a showing that the parent's child had failed to attend school on a number of occasions that varied significantly in number from district to district, and further that this caused confusion and problems for the parties in the case then brought before the court, then serious constitutional questions about the statute would be presented.

But, a constitutional controversy cannot be manufactured in the trial court or on appeal in order to obtain an advisory opinion. While it is evident that both parties wish this Court to address the vagueness issue, it is not this Court's prerogative to offer advisory opinions on hypothetical issues that are not necessary to the resolution of the case before it. See, e.g., Ellis, 853 S.W.2d at 446; State ex inf. Danforth v. Cason, 507 S.W.2d...