State v. Myers , 2014 S.D. 88 ( 2014 )

#27024-a-GAS
2014 S.D. 88IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
DOUGLAS J. MYERS, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
MEADE COUNTY, SOUTH DAKOTA
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THE HONORABLE JEROME A. ECKRICH, III
Judge
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MARTY J. JACKLEY
Attorney General
ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
ROBERT A. HAIVALA
Sturgis, South Dakota Attorney for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON NOVEMBER 17, 2014
OPINION FILED 12/17/14
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SEVERSON, Justice
[¶1.] A South Dakota Highway Patrol trooper stopped Douglas James Myers
after radar registered his car traveling at 112 miles per hour. He was traveling
with three small children in the vehicle and was under the influence of alcohol. No
actual physical injuries to the children occurred as a result of the incident. After a
trial to the court on stipulated facts, the Fourth Judicial Circuit Court found him
guilty of abuse of a minor in violation of SDCL 26-10-1 because he had “exposed” the
children as stated by that statute. The circuit court held that the statute was not
unconstitutionally vague for failing to define what “expose” means. Myers now
appeals the issue of whether the statute is unconstitutionally vague and therefore
void. We affirm.
Background
[¶2.] On June 8, 2013, the South Dakota Highway Patrol received a report
of a small red car travelling eastbound on Interstate 90, weaving all over the road
and going into the ditch or median with all four tires. A trooper used radar and
registered the car traveling 112 miles per hour. The trooper attempted to catch the
vehicle for approximately four miles, and was finally able to do so when the vehicle
slowed because of traffic. The trooper activated his lights, and the driver of the car
pulled over and identified himself as Douglas James Myers. There were two small
children in the back seat and one in the front seat. Upon approaching the vehicle,
the trooper smelled the strong odor of alcohol, noticed Myers’s eyes were bloodshot,
and saw Myers stagger as he walked. A urinalysis showed positive for marijuana,
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and a blood sample revealed that his blood contained .131% alcohol by weight.
Myers subsequently stipulated to these facts for his court trial.
[¶3.] On July 12, 2013, a Meade County Grand Jury indicted Myers with (1)
three counts of abuse of or cruelty to a minor, in violation of SDCL 26-10-1; (2)
driving under the influence of alcohol, marijuana, or controlled substance in
violation of SDCL 32-23-1(2) or in the alternative driving while having .08 percent
or more alcohol in blood; (3) possession of marijuana, less than two ounces, in
violation of SDCL 22-42-6; (4) reckless driving, in violation of SDCL 32-24-1; and (5)
driving while license revoked, in violation of SDCL 32-12-65(1). Myers entered a
not guilty plea to the crimes.
[¶4.] On November 6, 2013, Myers moved to dismiss the three counts
related to his alleged violation of SDCL 26-10-1, abuse of a minor, on the ground
that the statute is unconstitutionally vague and, therefore, void. The judge denied
the request after a pretrial hearing on November 14, 2013. The court conducted a
change of plea hearing on November 20, 2013, at which time, as part of a plea
agreement, Myers pleaded guilty to driving while having .08 percent or more
alcohol in his blood, in violation of SDCL 32-23-1(1), constituting a third offense
DUI. Pursuant to the plea agreement, the parties agreed to try one count of the
abuse of a minor upon stipulated facts to the circuit court, and all other charges
were dismissed. The State agreed in the stipulated facts “that no abuse, torture,
torments or cruel punishments was committed by [Myers].” Myers waived his right
to a jury trial on the child abuse charge.
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[¶5.] The court conducted a hearing on January 13, 2014, at which time it
allowed Myers to reopen the issue as to whether SDCL 26-10-1 is unconstitutionally
vague. The court rejected Myers’s argument and on February 19, 2014, held a
sentencing hearing, sentencing Myers to five years in prison for the abuse
conviction, to run concurrent with a sentence of two years for the third offense DUI
conviction. Myers appeals raising the issue of whether SDCL 26-10-1 is
unconstitutional because it is vague.
Analysis
[¶6.] “Challenges to the constitutionality of a statute are reviewed de novo.”
State v. Asmussen, 2003 S.D. 102, ¶ 2, 668 N.W.2d 725, 729. A strong presumption
exists that statutes are constitutional. Id. However, a criminal statute may be
vague and therefore void if it fails to “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). Therefore, we consider whether the statute affords notice to citizens as to
what conduct is prohibited and whether it “‘establish[es] minimal guidelines to
govern law enforcement’” so as not to allow “‘policemen, prosecutors, and juries to
pursue their personal predilections.’” Id. at 358, 103 S. Ct. at 1858 (quoting Smith
v. Goguen, 415 U.S. 566, 574-75, 94 S. Ct. 1242, 1247-1248, 39 L. Ed. 2d 605 (1974)).
[¶7.] Myers asserts that SDCL 26-10-1 is vague and therefore
unconstitutional. SDCL 26-10-1 provides in relevant part that:
Any person who abuses, exposes, tortures, torments, or cruelly
punishes a minor in a manner which does not constitute
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aggravated assault,* is guilty of a Class 4 felony. If the victim is
less than seven years of age, the person is guilty of a Class 3
felony.
Since the parties stipulated that Myers did not commit any acts of abuse, torture,
torments, or cruel punishment as listed within SDCL 26-10-1, the only word that
we must construe is “expose.” Id. Myers asserts that because the word “expose” is
not defined in the statute, ordinary citizens cannot know what conduct constitutes
“expose,” but not aggravated assault, in violation of the statute. Myers argues the
statute would need to elaborate what a child must be exposed to for the statute to
be constitutional. This Court has previously upheld the constitutionality of this
statute, but has not specifically addressed the meaning of “expose.” See State v.
Hoffman, 430 N.W.2d 910, 911-12 (S.D. 1988); State v. Eagle Hawk, 411 N.W.2d
120, 124 (S.D. 1987). We decided that this statute “is not easily susceptible of
* Aggravated assault is defined in SDCL 22-18-1.1.
Any person who:
(1) Attempts to cause serious bodily injury to another, or
causes such injury, under circumstances manifesting
extreme indifference to the value of human life;
(2) Attempts to cause, or knowingly causes, bodily injury to
another with a dangerous weapon;
(3) Deleted by SL 2005, ch 120, § 2;
(4) Assaults another with intent to commit bodily injury
which results in serious bodily injury;
(5) Attempts by physical menace with a deadly weapon to
put another in fear of imminent serious bodily harm; or
(6) Deleted by SL 2005, ch 120, § 2;
(7) Deleted by SL 2012, ch 123, § 4;
(8) Attempts to induce a fear of death or imminent serious
bodily harm by impeding the normal breathing or
circulation of the blood of another person by applying
pressure on the throat or neck, or by blocking the nose
and mouth;
is guilty of aggravated assault. Aggravated assault is a Class
3 felony.
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misinterpretation. Its attempt to catalog the types of conduct which would
constitute abuse of or cruelty to a minor may be lacking in imagination or
elaboration, but the statute is not unreasonably vague.” Hoffman, 430 N.W.2d at
912.
[¶8.] Myers asserts that because the statute does not say what expose
means, the public cannot know what one must do in order to violate it. However, “a
criminal law need not define every word used to prohibit a certain conduct.” State
v. Dale, 439 N.W.2d 98, 107 (S.D. 1989). “The words the legislature used are
presumed to convey their ordinary, popular meaning, unless the context or the
legislature’s apparent intention justifies departure from the ordinary meaning.”
State v. Big Head, 363 N.W.2d 556, 559 (S.D. 1985). “Expose” is, inter alia, defined
in The American Heritage College Dictionary 483 (3d ed. 1993), as “[t]o subject to
needless risk.” The statute need not enumerate a list of every potential thing that a
child could be exposed to in order to constitute felony child abuse. The definition of
expose includes those things or scenarios; it is those that “subject [a child] to
needless risk.” Id. “Risk” is, inter alia, “the possibility of suffering harm or loss;
danger.” Id. at 1177. Therefore, we conclude that the statute provides sufficient
notice to the ordinary citizen as to what conduct would constitute an offense under
SDCL 26-10-1, because the very definition of expose explains what a child must be
“exposed to” as Myers asserts the statute would need to do in order to be
constitutional.
[¶9.] Myers cites to our decision in State v. Biays as support for his
argument. See 402 N.W.2d 697 (S.D. 1987). In Biays, the defendant was charged
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with both aggravated assault and abuse charges and argued on appeal that it was a
violation of double jeopardy to charge both when those charges stemmed from the
same facts. Id. at 699. While Myers is correct in asserting that we emphasized the
injuries were separate and distinct, therefore suggesting that not all of them were
part of the same incident, Biays does not support Myers’s argument. See id. at 700.
Myers argues that, unlike in Biays, there are no injuries here, so exposing a child in
a manner that does not constitute aggravated assault has no real meaning and is at
odds with our Biays decision. We disagree. The question in Biays was whether the
constitutional right to be free from double jeopardy was violated, not whether the
statute was vague. Id. at 698. The lack of a physical injury or separate injuries is
not the question here and is irrelevant to whether he exposed the children.
[¶10.] Myers next asserts that he cannot be convicted under the statute
because prosecutors and police have unfettered discretion to decide when to charge
someone under the statute. Myers offers a hypothetical scenario of a parent taking
a child to a violent movie as being a potential violation of the statute. Myers cites
City of Chicago v. Morales in support of his proposition that the police will be
allowed to punish innocent citizens under the vagueness of the word expose. 527
U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 267 (1999). In City of Chicago the ordinance
at issue criminalized loitering, which was defined in the statute as “remain[ing] in
any one place with no apparent purpose.” Id. at 47, 119 S. Ct. at 1854. The Court
found the ordinance vague not because of “uncertainty about the normal meaning of
‘loitering,’ but rather about what loitering is covered by the ordinance and what is
not.” Id. at 57, 119 S. Ct. at 1859. Therefore, the Court concluded that the
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ordinance “fails to give the ordinary citizen adequate notice of what is forbidden and
what is permitted.” Id. at 60, 119 S. Ct. at 1861. “The Constitution does not permit
a legislature to ‘set a net large enough to catch all possible offenders, and leave it to
the courts to step inside and say who could be rightfully detained, and who should
be set at large.’” Id. (citing United States v. Reese, 92 U.S. 214, 221, 23 L. Ed. 563(1876)). In this case there is no uncertainty about the normal meaning of expose.
There is also no confusion about what exposure would result in a violation of the
statute. As a result, we are not persuaded that this provides police and prosecutors
unfettered discretion to charge a citizen for things such as taking a child to a violent
movie. Such an act does not subject the child to needless risk.
[¶11.] Furthermore, as we recently explained in State v. Outka, a “‘vagueness
challenge[ ] that do[es] not involve the First Amendment must be examined in light
of the specific facts of the case at hand and not with regard to the statute’s facial
validity.’” 2014 S.D. 11, ¶ 28, 844 N.W.2d 598, 607 (citing State v. Andrews, 2007
S.D. 29, ¶ 6, 730 N.W.2d 416, 419). On the stipulated facts of this case, we find it
unpersuasive that applying the statute to Myers’s actions--driving at a speed in
excess of 100 miles per hour while intoxicated, which put the children’s lives in
jeopardy, even where no actual physical harm results-- is an unconstitutional
application of the statute. The situation that Myers put these children in is clearly
one in which the children were subjected to needless risk.
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Conclusion
[¶12.] Even though SDCL 26-10-1 does not include a definition of the word
“expose,” it is unnecessary that criminal statutes define every word used therein.
The statute is not unconstitutionally vague, because it affords the public adequate
notice as to the conduct proscribed and does not allow law enforcement unfettered
discretion to enforce it. Therefore, Myers was properly convicted under the terms of
this statute. We affirm.
[¶13.] GILBERTSON, Chief Justice, and, KONENKAMP, ZINTER, and,
WILBUR, Justices, concur.
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