State v. Tocco

• Decision Date: 02 December 1986
• Docket Number: No. 1,CA-CR,1
• Citation: 750 P.2d 868,156 Ariz. 110
• Parties: STATE of Arizona, Appellant, v. Joseph Frank TOCCO, Appellee. 7480.
• Court: Arizona Court of Appeals

Page 868

750 P.2d 868

156 Ariz. 110

STATE of Arizona, Appellant, v. Joseph Frank TOCCO, Appellee.

No. 1 CA-CR 7480.

Court of Appeals of Arizona,

Division 1, Department D.

Dec. 2, 1986.

Appellant's Motion for Reconsideration

Granted and Opinion Modified

Jan. 15, 1988.

[156 Ariz. 111] Robert K. Corbin, Atty. Gen. by Steven J. Twist, Chief Counsel, Organized Crime and Racketeering Div., Patrick M. Murphy, Chief Counsel, Financial Fraud Div. and Cameron H. Holmes, Jessica Gifford Funkhouser, Asst. Attys. Gen. and Thomas E. Collins, Maricopa Co. Atty., Phoenix, for appellant.

Slaton Law Offices by Sandra Lynn Slaton, Phoenix, for appellee.

OPINION

BROOKS, Presiding Judge.

The state has appealed from the dismissal of count one of an amended information that charged defendant with leading organized crime, a class two felony, in violation of A.R.S. § 13-2308. ¹ After a hearing on defendant's motion to dismiss, the trial court ruled that the statute is unconstitutionally vague. We reverse.

Former A.R.S. § 13-2308 provided: ²

A. A person commits leading organized crime by:

1. Intentionally organizing, managing, directing, supervising or financing a criminal syndicate; or

2. Knowingly inciting or inducing others to engage in violence or intimidation to promote or further the criminal objectives of a criminal syndicate; or

3. Furnishing advice, assistance or direction in the conduct, financing or management of a criminal syndicate's affairs with the intent to promote or further the criminal objectives of a criminal syndicate; or

4. Intentionally promoting or furthering the criminal objectives of a criminal syndicate by inducing or committing any act or omission by a public servant in violation of his official duty.

B. No person shall be convicted pursuant to this section on the basis of accountability as an accomplice unless he aids or participates in violating this section in one of the ways specified.

The term "criminal syndicate," which is an element of the crime of "leading organized crime," is defined in A.R.S. § 13-2301(C)(2) as follows:

C. For the purposes of § 13-2308:

* * *

* * *

2. "Criminal syndicate" means any combination of persons or enterprises engaging, or having the purpose of engaging, on a continuing basis in conduct which violates any one or more provisions of any felony statute of this state.

The crux of the constitutional challenge to § 13-2308 in this case is defendant's argument that the statute does not adequately define the term "criminal syndicate" even though it is an underlying element of the crime of "leading organized crime." He argues that § 13-2301(C)(2) gives only an ambiguous and wholly inadequate definition of the term "criminal syndicate" because it does not define the meaning of "continuing basis" and fails to set forth the specific number of offenses which must occur for establishing a "criminal syndicate" or the period of time governing such offenses. He argues, therefore, that a person is left to guess at what conduct he must engage in, and with what type of individuals, in order to be guilty of violating A.R.S. § 13-2308.

At the outset, we note that the state asserts that defendant has no standing to argue the "vagueness" of A.R.S. § 13-2308 because he does not contend that any of his own potentially innocent conduct is being prosecuted under the statute. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Rather, the state contends that because defendant gives examples of how the statute can be applied to innocent conduct in general, he is, in effect, presenting an "overbreadth" rather than a "vagueness" challenge to the statute. We agree that ordinarily a defendant cannot challenge a statute as being impermissibly vague or overbroad where the statute has given him fair notice of the criminality of his own conduct, even though the statute may be unconstitutional when applied to another's conduct. Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); State v. Duran, 118 Ariz. 239, 575 P.2d 1265 (App.1978). However, in this case, defendant has raised a fundamental objection to the statute by arguing that it is facially unconstitutional and incapable of any valid application because several important elements of the offense are so ill-defined as to provide no notice of the conduct that is proscribed. He argues that the statute has no "clear" meaning at all. We find, therefore, that defendant has standing to challenge A.R.S. § 13-2308 on vagueness grounds.

We begin our analysis of defendant's constitutional challenge to A.R.S. § 13-2308 by noting that a strong presumption exists in support of the constitutionality of any legislative enactment. State v. Ramos, 133 Ariz. 4, 648 P.2d 119 (1982). A person challenging the validity of a statute has the burden of overcoming this strong presumption, and the court should give the challenged statute a constitutional construction whenever possible. Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977).

We disagree with the trial court's conclusion that the recent United States Supreme Court decision in Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) is dispositive of this case. Kolender involved a California statute that required persons who loitered or wandered the streets to provide "credible and reliable" identification and to account for their presence when requested to do so by the police. ³ Failure to do so could result in arrest. In holding that this statute was unconstitutionally vague, the Supreme Court stated:

[the statute] contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a "credible and reliable" identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute...."

Id. at 358, 103 S.Ct. at 1858, 75 L.Ed.2d at 909. The Court based its holding on the fact that the statute's vagueness presented the potential for arbitrarily suppressing first amendment liberties as well as infringing the right to freedom of movement. Id. at 358, 103 S.Ct. at 1859, 75 L.Ed.2d at 910.

We find that the decision in Kolender is inapposite to the present case. The underlying concern for specific and fundamental constitutional rights that was present in Kolender is not present in this case. No first amendment or freedom of movement claim is made by the defendant here. It is well established that where no fundamental or first amendment right is being implicated by a constitutional challenge to a statute on the basis of vagueness, a less stringent standard of review applies. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961). The traditional standard of review applicable to statutes not involving protected first amendment conduct was set forth in United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). In Powell, the Court stated that vagueness challenges to such statutes must be examined in light of the particular facts of the given case. Id. at 92, 96 S.Ct. at 319, 46 L.Ed.2d at 233. The Court noted that in analyzing such a challenge, the courts should attribute to the legislature the "commonsense meaning" of ambiguous terms or phrases and that "straining to inject doubt as to the meaning of words where no doubt would be felt by the normal reader is not required by the 'void for vagueness' doctrine." Id. at 93, 96 S.Ct. at 320, 46 L.Ed.2d at 234. Furthermore, the fact that a statute could have been drafted with " '[c]learer and more precise language' ... does not mean that the statute ... is unconstitutionally vague." Id. at 94, 96 S.Ct. at 321, 46 L.Ed.2d at 235. Only where a statute proscribes no comprehensible course of conduct at all, is it unconstitutional as applied to any set of facts. Id. at 92, 96 S.Ct. at 319-20, 46 L.Ed.2d at 233-34. Furthermore, a facial challenge to a statute that does not threaten to inhibit the exercise of a constitutional right should fail as long as the statute gives persons of ordinary intelligence reasonable opportunity to know what is prohibited and provides explicit standards for those who apply it. Flipside, 455 U.S. at 498, 102 S.Ct. at 1193, 71 L.Ed.2d at 371.

Arizona has followed the Powell and Flipside approach to vagueness challenges. In Fuenning v. Superior Court, 139 Ariz. 590, 680 P.2d 121 (1983), the court noted:

Where a statute gives fair notice of what is to be avoided or punished, it should not be declared void for vagueness simply because it may be difficult for the public to determine how far they can go before they are in actual violation.

Id. at 598, 680 P.2d at 129.

This court has adopted the same judicial philosophy toward void for vagueness challenges. In State v. Jacobs, 119 Ariz. 30, 579 P.2d 68 (App.1978), we noted that the constitutional prohibition against excessive vagueness:

does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for "[i]n most English words and phrases there lurk uncertainties." ... All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.

Id. at 32-33, 579 P.2d at 70-71 (citations omitted). We find that the lower standard of review used in Powell, Fuenning, and Jacobs is applicable to this case rather than the more restrictive test used in Kolender.

The defendant argues that even under this lesser standard of review, the case of State v. Young, 62 Ohio St.2d 370, 406 N.E.2d 499, cert. denied, 499 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137 (1980), supports his contention that A.R.S. §...