State v. Vaughn

• Decision Date: 29 May 2012
• Docket Number: No. SC 91670.,SC 91670.
• Citation: 366 S.W.3d 513
• Parties: STATE of Missouri, Appellant, v. Danny VAUGHN, Respondent.
• Court: Missouri Supreme Court

366 S.W.3d 513

STATE of Missouri, Appellant,

v.Danny VAUGHN, Respondent.

No. SC 91670.

Supreme Court of Missouri, En Banc.

May 29, 2012.

Held Unconstitutional

V.A.M.S. § 565.090(1)(5)

John W. Grantham, Daniel N. McPherson, Attorney General's Office, Jefferson City, for State.

Ellen H. Flottman, Public Defender's Office, Columbia, for Vaughn.

WILLIAM RAY PRICE, JR., Judge.

I.

The State of Missouri appeals an order of the Circuit Court of Scott County invalidating section 565.090.1, subdivisions (5) and (6), RSMo, Supp.2008, as being unconstitutionally vague and overbroad. This Court has exclusive jurisdiction of the appeal pursuant to article V, section 3, of the Missouri Constitution because it involves the validity of a Missouri statute. We affirm in part and reverse in part.

II.

In October 2010, Respondent was charged with one count of burglary and one count of harassment. Count I alleged that on April 27, 2010, Respondent “knowingly entered unlawfully in a building, ... owned by Retha Vaughn, for the purpose of committing harassment therein.” ¹ Count II alleged that on May 10, 2010, Respondent, “for the purpose of frightening Retha Vaughn[,] made repeated telephone calls to Retha Vaughn.” ² The State later filed an amended information clarifying Count II by further alleging that Respondent “knowingly made repeated communications with Retha Vaughn knowing that the communications were unwanted, to wit: making repeated phone calls to Retha Vaughn after being told not to call her again.”

Respondent filed a motion to dismiss both counts. At the motion hearing, the prosecution asserted that harassment charges under Count I would fall under section 565.090.1, subdivision (6), and that the harassment charges under Count II would fall under subdivision (5). The prosecution admitted that Respondent's conduct did not violate subdivisions (1) through (4). The prosecution stated the facts related to the Count I burglary charge to be that, after being instructed repeatedly not to return to the home of his former wife, Respondent entered the home using a key while she was not there; Respondent intended that Retha Vaughn would be scared to find him inside her home; Retha Vaughn was frightened when she found him in her home and ran out of the house to call the police. As to Count II: two weeks later, Respondent telephoned his former wife repeatedly after being told not to call again.

Respondent argued that subdivisions (5) and (6) violated his right to free speech under the First Amendment to the United States Constitution and article I, section 8, of the Missouri Constitution,³ in that the prohibitions are overbroad on the face of the statute. Respondent also argued that subdivisions (5) and (6) are vague and violate the right to due process found in the Fourteenth Amendment to the United States Constitution.⁴

The motion court entered an order dismissing both counts, holding that subdivisions (5) and (6) are vague and overbroad. The State appeals.

III.

Whether a statute is constitutional is reviewed de novo. City of Arnold v. Tourkakis, 249 S.W.3d 202, 204 (Mo. banc 2008). Statutes are presumed constitutional and will be found unconstitutional only if they clearly contravene a constitutional provision. State v. Pribble, 285 S.W.3d 310, 313 (Mo. banc 2009).

“The person challenging the validity of the statute has the burden of proving the act clearly and undoubtedly violates the constitutional limitations.” Franklin Cnty. ex rel. Parks v. Franklin Cnty. Comm'n, 269 S.W.3d 26, 29 (Mo. banc 2008) (citing Trout v. State, 231 S.W.3d 140, 144 (Mo. banc 2007)). “[I]f it is at all feasible to do so, statutes must be interpreted to be consistent with the constitutions.” State v. Stokely, 842 S.W.2d 77, 79 (Mo. banc 1992). “If a statutory provision can be interpreted in two ways, one constitutional and the other not constitutional, the constitutional construction shall be adopted.” Murrell v. State, 215 S.W.3d 96, 102 (Mo. banc 2007).

Statutory terms not defined by the legislature are considered in “their plain or ordinary and usual sense.” Sw. Bell Yellow Pages, Inc. v. Dir. of Revenue, 94 S.W.3d 388, 390 (Mo. banc 2002) (quoting section 1.090, RSMo 2000). A limiting construction may be imposed only if it is readily susceptible to such a construction. United States v. Stevens, ––– U.S. ––––, –––– – ––––, 130 S.Ct. 1577, 1591–92, 176 L.Ed.2d 435 (2010); see also Ryder Student Transp. Serv., Inc. v. Dir. of Revenue, 896 S.W.2d 633, 635 (Mo. banc 1995) (“Where the language of a statute is clear and unambiguous, there is no room for construction.”). “Courts cannot add words to a statute under the auspice of statutory construction.” S.W. Bell Yellow Pages, Inc., 94 S.W.3d at 390.

IV.

A.

“The constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within narrowly limited classes of speech.” Hess v. Indiana, 414 U.S. 105, 107, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973) (internal quotation marks omitted) (alteration omitted). See, e.g., Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (obscenity); Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952) (defamation); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (fighting words); see generally Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 124, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (Kennedy, J., concurring) (listing speech that is tantamount to an otherwise criminal act, an impairment of another constitutional right, an incitement to lawless action, or “likely to bring about an imminent harm the State has the substantive power to prevent”). Words in these categories have unprotected features that are essentially “nonspeech” elements, which may be regulated. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).

Generally “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). An exception exists for the First Amendment, under which litigants “are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id. at 612, 93 S.Ct. 2908. “Criminal statutes require particularly careful scrutiny, and ‘those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.’ ” State v. Moore, 90 S.W.3d 64, 66 (Mo. banc 2002) (quoting City of Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)).

B.

Where conduct and not merely speech is regulated, a statute must be substantially overbroad, not only in an absolute sense but also relative to the statute's plainly legitimate sweep. United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); Broadrick, 413 U.S. at 615, 93 S.Ct. 2908. “Invalidation for overbreadth is ‘strong medicine that is not to be casually employed.’ ” Williams, 553 U.S. at 293, 128 S.Ct. 1830 (quoting L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (internal quotation marks omitted)).

The first step in overbreadth analysis is to construe the challenged statute. Id. at 293, 128 S.Ct. 1830. “If the statute may fairly be construed in a manner which limits its application to a ‘core’ of unprotected expression, it may be upheld against the charge that it is overly broad.” Moore, 90 S.W.3d at 67;see also New York v. Ferber, 458 U.S. 747, 773, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (upholding statute where protected conduct constituted mere fraction of statute's reach).

1. Subdivision (5)

Section 565.090.1(5) defines “harassment” to occur when a person “[k]nowingly makes repeated unwanted communication to another person.” On its face, this statute criminalizes a substantial amount of protected expression.

The State's first proposed narrowing construction requires a defendant know that the communication is both repeated and unwanted. The State next proposes that the statute be limited to communication directed at an individual and particularized person. Neither construction remedies the problem.

Narrowing constructions cannot save this subdivision of the statute. “Repeated,” “unwanted,” and “communicate” are simply words that can be applied too broadly. Even with the State's suggested constructions, subdivision (5) still criminalizes any person who knowingly communicates more than once with another individual who does not want to receive the communications. Although the statute purports to criminalize “harassment,” subdivision (5), unlike the other subdivisions, does not require the conduct to actually harass in any sense of the word.⁵ Rather, it criminalizes a person who “knowingly makes repeated unwanted communication to another person.”

A few examples illustrate the statute's potential chilling effect upon political speech as well as everyday communications. For instance, individuals picketing a private or public entity would have to cease once they were informed their protestations were unwanted. A teacher would be unable to call a second time on a student once the pupil asked to be left alone. Salvation Army bell-ringers collecting money for charity could be prosecuted for harassment if they ask a passerby for a donation after being told, “I've already given; please don't ask again.” An advertising campaign urging an elected official to change his or her position on a controversial issue would be criminalized.

The State argues...