State v. Aver , 109 Wash. 2d 303 ( 1987 )

Goodloe, J.

Defendants (petitioners) raise various challenges to their convictions under RCW 81.48.020, which makes it illegal to willfully obstruct or delay a lawfully operated train. Defendants' main challenge is that the term "lawfully operated" renders RCW 81.48.020 unconstitutionally vague. We uphold the statute and affirm their convictions.

The facts are not disputed. In Clark County District Court a jury convicted defendants of obstructing or delaying a train in violation of RCW 81.48.020. The train which defendants were convicted of obstructing is often referred to as a "White Train" or "Death Train" and is believed to have been carrying nuclear warheads to the naval submarine base at Bangor, Washington. The arrests occurred as the train attempted to pass through Vancouver, Washington. Approximately 200 to 250 people were protesting the train's passage. A number of the protesters impeded the train's passage by getting onto the train tracks. None of the defendants had permission to be on the Burlington Northern tracks. After three warnings, the Vancouver City Police removed and arrested any person who refused to move off of the tracks.

The Clark County Superior Court affirmed the defendants' convictions. The court held that RCW 81.48.020 is not unconstitutionally vague because the statute provides sufficient minimal guidelines such that law enforcement personnel or other persons of reasonable understanding could determine what is proscribed. The Court of Appeals accepted discretionary review pursuant to RAP 2.3(d). Thereafter, the matter was certified to this court pursuant to RCW 2.06.030. Some of the defendants are represented by counsel; others represent themselves.

I

We address whether RCW 81.48.020 is void for vagueness. RCW 81.48.020 provides:

Every person who shall wilfully obstruct, hinder or delay the passage of any car lawfully operated upon any railway, shall be guilty of a misdemeanor.

(Italics ours.)

Defendants argue that the unconstitutionality of RCW 81.48.020 arises from the patent ambiguity of the term "lawfully operated". The challenged term is not defined by statute or court interpretation. Thus, defendants contend that a criminal conviction under the statute necessarily involves an arbitrary or ad hoc determination of the prohibited conduct. Defendants reason that because the definition of an element of the crime must be supplied by guesswork, the statute is clearly void. Pro se defendant further submits that the trial court improperly excised the words "lawfully operated" from the statute. The court ruled that the statute was not vague because it clearly prohibited "obstructing, hindering or delaying of a railway car." Clerk's Papers, at 37.

To assist in determining whether a statute is void for vagueness, the following rules of statutory construction are relevant. "A statute is void for vagueness under the Fourteenth Amendment if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application." Myrick v. Board of Pierce Cy. Comm'rs, 102 Wn.2d 698, 707, 677 P.2d 140, 687 P.2d 1152 (1984); see also Papachristou v. Jacksonville, 405 U.S. 156, 162, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972). " [I]f men of ordinary intelligence can understand a penal statute, notwithstanding some possible areas of disagreement, it is not wanting in certainty." State v. Maciolek, 101 Wn.2d 259, 265, 676 P.2d 996 (1984).

In a constitutional challenge a statute is presumed constitutional unless its unconstitutionality appears beyond a reasonable doubt. Seattle v. Shepherd, 93 Wn.2d 861, 865, 613 P.2d 1158 (1980); Maciolek, at 263. In a facial challenge, as here, we look to the face of the enactment to determine whether any conviction based thereon could be upheld. Shepherd, at 865. A statute is not facially vague if it is susceptible to a constitutional interpretation. State v. Miller, 103 Wn.2d 792, 794, 698 P.2d 554 (1985). The burden of proving impermissible vagueness is on the party challenging the statute's constitutionality. Shepherd, at 865. Impossible standards of specificity are not required. Hi-Starr, Inc. v. Liquor Control Bd., 106 Wn.2d 455, 465, 722 P.2d 808 (1986).

No Washington court has directly ruled on the constitutionality of RCW 81.48.020. However, defendants urge that our decisions in previous cases dictate that we hold the challenged statute to be unconstitutional. See, e.g., State v. Richmond, 102 Wn.2d 242, 683 P.2d 1093 (1984); State v. Hilt, 99 Wn.2d 452, 662 P.2d 52 (1983); State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982); Seattle v. Rice, 93 Wn.2d 728, 612 P.2d 792 (1980); Bellevue v. Miller, 85 Wn.2d 539, 536 P.2d 603 (1975); Seattle v. Drew, 70 Wn.2d 405, 423 P.2d 522, 25 A.L.R.3d 827 (1967).

In Richmond, at 244, for example, the challenged statute provided in pertinent part:

(1) Every person who: . . .

(b) Wilfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his or her child or stepchild . . . shall be guilty of the crime of family desertion or nonsupport.

Citing former RCW 26.20.030(1) (b). We held this statute to be unconstitutionally vague because the "without lawful excuse" element had not been sufficiently clarified by other statute or case authority. Richmond, at 243. Similarly, we held in Hilt that Washington's bail jumping statute was unconstitutional. The scrutinized phrase in Hilt was "lawful excuse". We stated:

The bail jumping statute is . . . deficient in terms of providing guidelines to the meaning of lawful excuse. The phrase is nowhere defined and predicting its potential application would be a guess, at best. We therefore hold that the bail jumping statute is unconstitutionally vague.

Hilt, at 455. In White, we struck down a statute as vague which' made it "a misdemeanor to 'obstruct a public servant' by failing, 'without lawful excuse', to provide true information 'lawfully required' of an individual by a 'public servant'." White, at 95. Defendants argue that the infirmity in RCW 81.48.020 compares to the above invalidated statutes.

The challenged statute is distinguishable from those found vague in the aforementioned cases. In Richmond, Hilt, and White the challenged "lawful excuse" phrase was directed toward the activities of the accused. As such, the phrase did not provide fair notice of the conduct proscribed and raised the potential of arbitrary arrests and convictions. Here, in contrast, no such confusion exists. The term "lawfully operated" is directed not toward the activities of the accused. Rather, RCW 81.48.020 forbids a definite course of conduct — willfully obstructing, hindering or delaying the passage of a train. The proscribed activity being clearly stated, the defendants cannot claim constitutional confusion as to the lawfulness of the operation of the train. We will not strain to inject doubt into the meaning of a statute. Our plain reading of RCW 81.48.020 fails to impress us of its vagueness.

Our decision here comports with our recent decision in State v. Miller, 103 Wn.2d 792, 698 P.2d 554 (1985). In Miller, we upheld a statute which provided that: "it is a class C felony to assault with intent to resist a lawful arrest or detention." Miller, at 793-94. We held this language provided adequate notice. Miller, at 794. RCW 81.48.020 is no less clear to persons of reasonable understanding than the statute found in Miller.

We find that RCW 81.48.020 is not unconstitutionally vague. The statute does not require one to guess at its meaning. It is sufficiently clear to prevent arbitrary or ad hoc determinations of criminality and establishes minimum guidelines to govern law enforcement. See Richmond, at 244.

II

We now turn to defendants' remaining contentions. Defendants argue that the giving of instruction 5 constituted prejudicial error. Instruction 5 provided:

"Lawfully" means with the permission of and under the authority of the railroad company.

Clerk's Papers, at 74. "Jury instructions are sufficient if they '(1) permit each party to argue his theory of the case, (2) are not misleading, and (3) when read as a whole, properly inform the trier of fact of the applicable law.'" Tiderman v. Fleetwood Homes, 102 Wn.2d 334, 337-38, 684 P.2d 1302, 45 A.L.R.4th 743 (1984).

Defendants argue that instruction 5 is not a correct statement of the law. Defendants assert that the trial court's definition was without reason or authority and ignored the obvious meaning of the term "lawfully operated". Therefore, it is argued that the giving of instruction 5 was manifestly unreasonable and constituted an abuse of discretion. See Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 684 P.2d 692 (1984). Defendants argue that a reasonable person would expect that a "lawfully operated" train at least does not violate statutory law. See Mountlake Terrace v. Stone, 6 Wn. App. 161, 492 P.2d 226 (1971). Defendants conclude that the instruction given by the trial court denied them the opportunity to argue that the train was not operated in accordance with local, state, and federal law.

We find defendants' argument is without merit. First, the court in Mountlake Terrace, at 166, recognized that the term "lawfully required" did not mean "required only by statute". Therefore, the trial court was not necessarily required to define "lawfully" in terms of compliance with local, state, and federal law. Second, Black's Law Dictionary 1032 (4th ed. 1968), defines lawful as: "Legal; warranted or authorized by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law." Given this definition, the instruction given by the trial court — that the train was operated by a company having authority to do so within the state of Washington— properly informed the jury of the applicable law. The instruction was not manifestly unreasonable nor did it constitute an abuse of discretion. Moreover, proving compliance with every local, state, and federal law would be virtually impossible. To so require would necessitate a distorted reading of the statute. Consequently, the definition of "lawfully" given by the trial court was proper.

Additionally, we note that all of the witnesses stated "no" when asked, "did you stop this train because it was violating federal, state, or local transportation laws[?]" Report of Proceedings, at 163. In response, defendants indicated that they were responding to a higher law and had stopped the train because it carried nuclear weapons. In sum, instruction 5 did not prevent defendants from arguing their theory of the case.

Defendants next argue that they were entitled to a dismissal of the charges for lack of evidence. Defendants submit that the prosecution presented no evidence whatsoever to prove the train's compliance with local, state, and federal law. Thus, defendants conclude the State failed to prove an element of the crime charged — that the train was lawfully operated. The State responds that it elicited testimony to show that the train was lawfully operated. For example, the train's engineer testified that he operated the train in accordance with the law. Furthermore, it is unchallenged that the train had authority to be on the tracks. The State concludes that, while not overwhelming, the State's evidence allows for the inference that the train was lawfully operated. We agree with the State.

Due process requires that the State bear the burden of proving each and every element of the crime beyond a reasonable doubt. State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983). The applicable standard of review is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation omitted.) State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980); accord, State v. Ollens, 107 Wn.2d 848, 853, 733 P.2d 984 (1987). The evidence as to whether the train was "lawfully operated" is minimal. Nevertheless, some evidence on that issue was presented. We find that sufficient evidence was presented.

Finally, we address the propriety of the trial court's grant of the prosecution's motion in limine pertaining to proposed defenses based on necessity and international law. Pro se defendant argues that the trial court's refusal to allow defenses based on necessity and international law was improper. The necessity doctrine provides that an act is justified if it by necessity is taken in a reasonable belief that the harm or evil to be prevented by the act is greater than the harm caused by violating the criminal statute. See generally State v. Diana, 24 Wn. App. 908, 604 P.2d 1312 (1979); State v. Niemczyk, 31 Wn. App. 803, 644 P.2d 759 (1982). Pro se defendant argues that this case resembles Commonwealth v. Berrigan, 325 Pa. Super. 242, 472 A.2d 1099 (1984). The superior court in Berrigan reversed the defendants' convictions for trespass of a nuclear power plant and remanded for a new trial. The court reversed in part because the defendants were not allowed to introduce evidence of justification. Berrigan, at 258.

However, we note the pro se defendant cites to a case that has been reversed by the Pennsylvania Supreme Court. Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985). The Pennsylvania Supreme Court held that defendants' offer of proof did not meet a minimum standard which would support a justification defense and, therefore, affirmed the defendants' convictions. Berrigan, at 123-26. We similarly hold that a necessity defense is not supported by the record in this case. See Berrigan, at 124. Furthermore, we agree with the trial court that international law has no bearing on whether a train is "lawfully operated" within the meaning of RCW 81.48.020. We hold that the trial court did not abuse its discretion in granting the motion in limine. Consequently, the trial court's rejection of defendants' proposed instructions on necessity and international law was also proper. We have considered pro se's remaining contentions and have concluded that they also are without merit.

We affirm the defendants' convictions.

Dolliver, Dore, Callow, and Durham, JJ., and Skimas, J. Pro Tern., concur.

Andersen, J., concurs in the result.