UNITED STATES v. SMITH

• Decision Date: 31 October 1996
• Docket Number: No. 95-CO-1523,95-CO-1523
• Parties: UNITED STATES, Appellant, v. Loretta SMITH, Appellee.
• Court: D.C. Court of Appeals

685 A.2d 380

UNITED STATES, Appellant, v. Loretta SMITH, Appellee.

No. 95-CO-1523.

District of Columbia Court of Appeals.

Argued March 20, 1996.

Decided October 31, 1996.

APPEAL FROM THE SUPERIOR COURT, HENRY F. GREENE, J.

Michael N. Levy, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese III, and Eric L. Yaffe, Assistant United States Attorneys, were on the brief, for appellant.

Robert L. Wilkins, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellee.

Before WAGNER, Chief Judge, and SCHWELB, Associate Judge, and PRYOR, Senior Judge.

PRYOR, Senior Judge:

This appeal presents the issue of the constitutionality of the District of Columbia stalking statute. A grand jury indicted appellee Loretta Smith on various charges, including two counts of misdemeanor stalking in violation of D.C. Code § 22-504(b) (1996 Supp.). The trial court dismissed the stalking counts nearly in their entirety based on its interpretation of the statute and its finding that part of the statute was unconstitutional. The government filed an interlocutory appeal challenging this ruling. We reverse and hold that the stalking statute is not unconstitutionally vague or overbroad.

I. Procedural History

Appellee was indicted on two counts of misdemeanor stalking in violation of D.C. Code § 22-504(b) (1996 Supp.), three counts of threatening to injure a person in violation of D.C. Code § 22-2307 (1996 Repl.), and two counts of blackmail in violation of D.C. Code § 22-3852 (1996 Repl.).¹ Appellee was charged with stalking two complainants, and each stalking count read as follows:

STALKING — in that she on more than one occasion engaged in conduct with the intent to cause emotional distress to [complainant] and placed [complainant] in reasonable fear of death or bodily injury by willfully, maliciously, and repeatedly following and harassing [complainant].

Appellee filed a motion to dismiss the stalking counts, arguing that the stalking law was unconstitutionally vague and overbroad on its face, and that applying the statute to appellee's conduct would violate her rights under the First Amendment to the Constitution. The trial court held four hearings in order to hear arguments regarding the constitutionality of the stalking statute. At the fourth hearing, the trial court ruled that part of the statute was unconstitutionally vague, and that the government could not prove harassment based on its interpretation of the statute. The result of the ruling was that the government was able to charge appellee only with "plac[ing] the complainant[s] in reasonable fear of death or bodily injury by . . . willfully, maliciously and repeatedly following [them]."

The government filed an interlocutory appeal of this ruling rather than proceeding to trial on the limited stalking charge. The trial court denied the government's motion to continue the proceedings on the other counts pending resolution of the appeal. Following a jury trial, appellee was acquitted of the three threats charges and one blackmailing charge, and the trial judge declared a mistrialon the other blackmailing charge because the jury could not reach a unanimous verdict.

II. Appealability

Appellee has filed a motion to dismiss this appeal based on lack of jurisdiction. The government, however, contends this court has jurisdiction under D.C. Code § 23-104(c) (1996 Repl.):

The United States . . . may appeal an order dismissing an indictment or information or otherwise terminating a prosecution in favor of a defendant or defendants as to one or more counts thereof, except where there is an acquittal on the merits.

Appellee argues this court does not have jurisdiction because the trial court did not dismiss the stalking counts in their entirety. We conclude, however, that the trial court substantially dismissed the stalking counts through its interpretation of the statute. We are not persuaded that our decision in United States v. Jones, 423 A.2d 193 (D.C. 1980), where we held that the trial court's refusal to reconsider its order vacating defendant's conviction and dismissing the indictment was not an appealable ruling, compels us to dismiss this appeal.² Therefore, we find the trial court's ruling with respect to the stalking counts was an appealable order pursuant to D.C. Code § 23-104(c).³

III. Statutory Provision

The District of Columbia has defined the crime of stalking as follows:⁴

Any person who on more than 1 occasion engages in conduct with the intent to cause emotional distress to another person or places another person in reasonable fear of death or bodily injury by willfully, maliciously, and repeatedly following or harassing that person, or who, without a legal purpose, willfully, maliciously, and repeatedly follows or harasses another person, is guilty of the crime of stalking and shall be fined not more than $500 or be imprisoned not more than 12 months, or both. Constitutionally protected activity, such as conduct by a party to a labor dispute in furtherance of labor or management objectives in that dispute, is not included within the meaning of this definition.

D.C. Code § 22-504.⁵ The statute defines the term "harassing" as follows:

(e) For the purposes of this section, the term "harassing" means engaging in a course of conduct either in person, by telephone, or in writing, directed at a specific person, which seriously alarms, annoys, frightens, or torments the person, or engaging in a course of conduct either in person, by telephone, or in writing, which would cause a reasonable person to be seriously alarmed, annoyed, frightened or tormented.

Id. The traditional approach to criminal offenses is to divide them into the actus reus (a voluntary act or omission) and the mens rea (required state of mind) requirements. See WAYNE R. LAFAVE, MODERN CRIMINAL LAW 96 (2d ed. 1988). By approaching the relevant portions of the statute in this way, we find that there are four potential theories of liability:

1. Proving that the accused on more than one occasion engaged in conduct with the intent to cause emotional distress to the complainant by willfully, maliciously, and repeatedly following the complainant.

2. Proving that the accused on more than one occasion engaged in conduct with the intent to cause emotional distress to the complainant by willfully, maliciously, and repeatedly harassing the complainant.

3. Proving that the accused on more than one occasion placed the complainant in reasonable fear of death or bodily injury by willfully, maliciously, and repeatedly following the complainant.

4. Proving that the accused on more than one occasion placed the complainant in reasonable fear of death or bodily injury by willfully, maliciously, and repeatedly harassing the complainant.

These theories are to be read in the disjunctive, and therefore more than one theory can be charged in a single count. See Turner v. United States, 57 App. D.C. 39, 39-40, 16 F.2d 535, 535-36 (1926). Consequently appellee could be found guilty based on any of these four theories.⁶

IV. Constitutionality

The trial court ruled that a portion of the stalking statute was unconstitutionally vague. Appellee has also argued that the statute is overbroad and that it is unconstitutional as applied to her conduct. We observe that the majority of other state courts which have ruled on the constitutionality of their state stalking statutes have upheld them against vagueness or overbreadth challenges.⁷ We recognize that:

we are under a general obligation to interpret statutes so as to support their constitutionality. . . . This is equally true when, under the First Amendment, a statute . . . is attacked on overbreadth grounds or on vagueness grounds under the Fifth Amendment.

District of Columbia v. Gueory, 376 A.2d 834, 836 (D.C. 1977) (citations omitted).

A. Vagueness

The Supreme Court has held that:

[t]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (citing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Connally v. General Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926)); see also Ford v. United States, 498 A.2d 1135, 1138-39 (D.C. 1985). Of the two considerations stated by the court, actual notice to citizens and arbitrary enforcement, the more important consideration of the two is whether the criminal statute provides minimal guidelines for enforcement. Kolender, supra, 461 U.S. at 358, 103 S.Ct. at 1858-59. As we evaluate the statute in light of these factors, we are mindful of the fact that "[c]ondemned to the use of words, we can never expect mathematical certainty from our language." Grayned, supra, 408 U.S. at 110, 92 S.Ct. at 2300. We also note that in the process of this review we will establish the proper construction of the statute, which is different from that articulated by the trial court.

1. "Emotional Distress" Stalking

One of the trial court's concerns regarding the stalking statute was that someone might be prosecuted for merely engaging "in conduct with the intent to cause emotional distress to another person." We recognize that there are potential vagueness problems with this interpretation. However, by examining the mens rea and actus reus components of the statute, it becomes clear that the elements of "willfully, maliciously and repeatedly...