State v. Young, 66581

• Decision Date: 10 September 1985
• Docket Number: No. 66581,66581
• Citation: 695 S.W.2d 882
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Garry W. YOUNG, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 882

695 S.W.2d 882

STATE of Missouri, Plaintiff-Respondent, v. Garry W. YOUNG, Defendant-Appellant.

No. 66581.

Supreme Court of Missouri En Banc.

Sept. 10, 1985.

David G. Neal, Eminence, Gary H. Sokolik, Perry, for defendant-appellant.

C. David Henderson, Pros. Atty., New London, for plaintiff-respondent.

HIGGINS, Chief Justice.

Garry W. Young was convicted upon jury-waived trial of "being present at a cockfight" in violation of section 578.050, RSMo 1978. He challenges the constitutional validity of section 578.050, RSMo 1978, which proscribes inter alia, maintaining property for use in cockfighting and being present at such a place. The Court determines that the statute is void for vagueness, and the judgment of conviction is reversed.

On February 26, 1983, Sheriff Glen Parsons, a deputy sheriff and several members of the Missouri State Highway Patrol entered the "Hills Building," the suspected scene of a cockfight in rural Ralls County. They found sixteen individuals in the building and observed what was described as a pit or ring containing feathers and blood. The officers saw several cages or coops containing roosters; they did not observe any cockfights in progress.

Garry Young was identified as one of the individuals present; the extent of his participation in any cockfights and the character of his presence at the scene were not shown.

The information charged that the defendant, in violation of section 578.050, committed the misdemeanor of being present at a cockfight. He filed a pretrial motion to dismiss alleging that the statute was "vague, overbroad, ambiguous, confusing and incoherent" and thus violated his constitutional rights of due process; and that the statute unlawfully infringed upon his constitutionally protected rights of privacy, assembly, association, travel and movement. The motion to dismiss was overruled, and was twice renewed and overruled at trial. The statute in question provided:

Any person who shall keep or use, or in any way be connected with or interested in the management of, or shall receive money for the admission of any person to, any place kept or used for the purpose of fighting or baiting any bull, bear, dog, cock or other creature, and any person who shall encourage, aid or assist or be present thereat, or shall permit or suffer any place belonging to him or under his control to be so kept or used, shall, on conviction thereof, be guilty of a misdemeanor.

§ 578.050, RSMo 1978. In 1984 the legislature deleted the term "dog" and classified the offense as a "Class A Misdemeanor."

Statutes are presumed to be constitutional and will be held otherwise only if they clearly contravene some constitutional provision. State Tax Com. v. Administrative Hearing Com., 641 S.W.2d 69 (Mo. banc 1982); State v. Brown, 660 S.W.2d 694 (Mo. banc 1983). Statutes must, if possible, be construed as consistent with the Constitution, State Highway Com. v. Spainhower, 504 S.W.2d 121, 125 (Mo. banc 1973); doubts are to be resolved in favor of validity, State ex rel. McClellan v. Godfrey, 519 S.W.2d 4, 8 (Mo. banc 1975).

On a challenge that a statute or ordinance is unconstitutionally vague 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. Prokopf v. Whaley, 592 S.W.2d 819, 824 (Mo. banc 1980). An exception exists where the accused has challenged the facial validity of the ordinance or statute on First Amendment grounds, in which case it is irrelevant that his particular conduct which subjected him to arrest, could constitutionally be prohibited under the statute. Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915-2916, 37 L.Ed.2d 830 (1973). Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); City of Kansas City v. Thorpe, 499 S.W.2d 454 (Mo.1973), cert. denied, Thorpe v. City of Kansas City, 416 U.S. 990, 94 S.Ct. 2398, 40 L.Ed.2d 768 (1974); State v. Swoboda, 658 S.W.2d 24 (Mo. banc 1983). Overbreadth attacks are allowed where rights of association are ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. Broadrick, 413 U.S. at 611-612, 93 S.Ct. at 2915-2916.

Dispositive of this case is the charge that the statute is unconstitutionally vague and overly broad. Vagueness, as a due process violation, takes two forms. One is the lack of notice given a potential offender because the statute is so unclear that "men of common intelligence must necessarily guess at its meaning." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); State ex rel. Williams v. Marsh, 626 S.W.2d 223 (Mo. banc 1982). The second is that the vagueness doctrine assures that guidance, through explicit standards, will be afforded to those who must apply the statute, avoiding possible arbitrary and discriminatory application. Grayned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. at 2299; Papachristou v. City of Jacksonville, 405 U.S. at 162, 92 S.Ct. at 843; State v. Brown, 660 S.W.2d 694, 697 (Mo. banc 1983). See Missouri Pacific Railroad Co. v. Morris, 345 S.W.2d 52, 57 (Mo. banc 1961).

Appellant contends that the statute, by its literal terms, makes unlawful the mere presence at a place or facility that has been used for a cockfight: (1) regardless whether there is a cockfight in progress at the time such person is present; and (2) regardless whether such person had any intent to participate in a cockfight. He argues that the statute is thus open to a wide range of meaning and interpretations, and consequently may be arbitrarily imposed.

Courts of other states have determined similar statutes to be constitutionally infirm. In State v. Wear, 15 Ohio App.3d 77, 472 N.E.2d 778 (1984), the court held unconstitutional a statute which provided in pertinent part:

No person shall knowingly engage in or be employed at cockfighting ...; no person shall receive money for the admission of another to a place kept for such purpose; .... Any person who knowingly purchases a ticket of admission to such place, or is present thereat, or witnesses such a spectacle, is an aider and abettor.

In analyzing this statute the court said there existed an

ambiguity as to whether this statute restricts presence at a cockfight in progress or proscribes the mere presence of an individual at a facility used for cockfights, or designed or intended for such use, regardless of whether a fight is in progress at the time such individual is present.

Id. 472 N.E.2d at 781. The court further reasoned that "knowingly," as it is used in the statute, only applies to the purchase of a ticket for admission to an animal fight and is not a prerequisite mental state for the act of being present at an animal fight. The court accordingly held the statute to be impermissibly vague and a violation of due process.

In State v. Abellano, 50 Hawaii 384, 441 P.2d 333 (1968), the court struck down an ordinance which provided: "It shall be unlawful for any person to engage or participate in or be present at, any cockfighting exhibition." The defendant was shown to be no more than present at a place where a cockfight was being held. Expressly overruling a prior holding defining the standard of being "present at," the court held:

An ordinance or statute proscribing presence, whether at a cockfight, a gambling house, or a house of prostitution, is too vague to satisfy the requirements of due process. Primarily, the term presence has a spacio-physical frame of reference. Unless the activity at which presence is unlawful is in a narrowly confined place, determination of what constitutes presence at the activity can be resolved only on the basis of policy.

Id. 441 P.2d at 334-335. Unlike the enactment in Abellano, section 578.050 does not contain the requirement that an individual be present at the cockfight while it is being held. The person subject to criminal liability under the literal terms of section 578.050 is not necessarily a spectator or an active participant at a cockfight, but rather one who is only at a place used for such events.

The reasoning from Abellano was followed in State v. Shigematsu, 52 Hawaii 604, 483 P.2d 997 (1971), where the court examined a statute which proscribed presence in a "barricaded place" where gambling implements were exhibited. Relying on Abellano the court held, "We have no doubt that the statute is vague and overly broad and therefore violates due process of law...." Shigematsu, 483 P.2d at 1000. See also State v. Kaneakua, 61 Hawaii 136, 597 P.2d 590 (1979).

Other courts have reached results contrary to Wear and Abellano and have upheld animal fighting statutes; but the specific language of the particular statutes in those cases distinguishes them from the present case. In State v. Tabor, 678 S.W.2d 45 (Tenn.1984), the court upheld a statute prohibiting persons from "knowingly" being present "as spectators" at a cockfight. Distinguishing State v. Abellano, 441 P.2d 341, the court based its holding on a determination that the offenses defined by the statute consisted of two indispensable elements: (1) the act of being a spectator at a place where a cockfight or a similar exhibition is in progress or is being prepared; and (2) a specific intent to knowingly and deliberately be present at such a place as a spectator. Id. at 48. These two elements are not present in section 578.050. See Moody v. State, 253 Ga. 456, 320 S.E.2d 545 (1984); Hargrove v. State, 253 Ga. 450, 321 S.E.2d 104 (1984); State v. Kaneakua, 61 Hawaii 136, 597 P.2d 590 (1979). Cf. Illinois Gamefowl Breeders Ass'n v. Block, 75 Ill.2d 443, 27...