Summers v. Sheriff, Clark County, 7631
| Decision Date | 08 May 1974 |
| Docket Number | No. 7631,7631 |
| Citation | 521 P.2d 1228,90 Nev. 180 |
| Parties | Charis SUMMERS, Appellant, v. SHERIFF, CLARK COUNTY, Nevada, Respondent. |
| Court | Nevada Supreme Court |
Appellant, charged with 'lewdness with a minor' (NRS 201.230), was ordered to stand trial at the conclusion of a preliminary examination. He then sought habeas corpus in the district court and now appeals from the order denying that relief.
The alleged victim, a 12 year old girl, testified, inter alia, that during the afternoon of June 28, 1973, she was clad in a two piece bathing suit and, while chatting with appellant, he invited her into his dwelling so that he could obtain his camera and photograph her. After entering the house she was asked to get on the bed and appellant, after taking several pictures, pulled the lower part of her bathing suit down to her knees, took several more pictures and then, while standing beside the bed, masturbated while the girl watched.
In asking us to reverse, appellant's first contention suggests that the word 'lewd' is unconstitutionally vague because it does not have sufficient certainty of definition so that an individual of ordinary intelligence would have fair notice as to what conduct is lewd. 1 We reject the contention.
While 'lewd' is not specifically defined in our statutes, the word 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.' Roth v. United States, 354 U.S. 496, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957), quoting from United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). 'The Constitution requires no more.' Petrillo, supra, at 8, 67 S.Ct. 1538. No case has been cited by appellant in support of the argument and we note courts in other jurisdictions have determined that the word 'lewd' sufficient constitutional certainty to meet the requirement of Due Process. See, for example: State v. Jensen, 153 Mont. 489, 458 P.2d 782 (1969); People v. Loignon, 160 Cal.App.2d 412, 325 P.2d 541 (1958); and, United States ex rel. Huguley v. Martin, 325 F.Supp. 489 (N.D.Ga.1971).
Appellant also contends that the evidence adduced before the magistrate is insufficient to meet the test of probable cause to hold him for trial. The thrust of his argument is that the lack of physical contact with the girl proscribes the charge.
We need not decide whether actual physical contact between appellant and the victim is an essential element of the crime because here there was physical contact when the bottom portion of the bathing suit was lowered. See People v. Lanham, 137 Cal.App. 737, 31 P.2d 410 (1934), where the defendant placed his hands under the clothing of a child and removed her panties. In affirming the conviction the court said: 'It is common knowledge and common experience to conclude that in removing the panties of the child the hands of the one removing the panties would necessarily and undoubtedly come in contact with the body of the child so outraged.' 31 P.2d at 412.
In People v. Halistik, 69 Cal.App. 174, 230 P. 972 (1924), a conviction was affirmed where the accused had placed his hand between the child's legs without placing it under the...
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Berry v. State
...With respect to the term "lewdness," this court has previously considered a vagueness challenge to that word in Summers v. Sheriff, 90 Nev. 180, 521 P.2d 1228 (1974). In Summers, this court established that the word "lewd," under NRS 201.230, defining "lewdness with a minor," was not exceed......
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State v. Eighth Judicial District Court of the State of Nevada, 120 Nev. Adv. Op. No. 69 (NV 9/16/2004)
...identical to NRS 201.230, even an innocuous touching, if performed with lewd intent, violates the statute); Summers v. Sheriff, 90 Nev. 180, 182, 521 P.2d 1228, 1229 (1974) (observing that a California appellate court affirmed a conviction where the defendant placed his hand between the chi......
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State v. Catanio
...under threat of pain and masturbating in the child's presence were sufficient to satisfy the elements of lewdness with a minor. In Summers v. Sheriff, the appellant contended that insufficient evidence was shown to bind him over for trial on a charge of lewdness with a minor.14 The prelimin......
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Alfaro v. State
...definition with four distinct elements, was laid out in instruction no. 20, and does not require further commentary, Summers v. Sheriff, 90 Nev. 180, 182, 521 P.2d 1228, 1228-29 (1974). Furthermore, since instruction no. 23 does not mention physical contact and "lewdness with a child" requi......