Christоpher James YAGER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. S-15-0045.
Supreme Court of Wyoming.
Oct. 30, 2015.
2015 WY 139 | 362 P.3d 777
Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
BURKE, Chief Justice.
[¶1] Appellant, Christopher Yager, challenges his conviction of third-degree sexual assault. He contends Wyoming‘s sexual assault statute does not apply to sexual contact between probation officers and probationers. We affirm.1
ISSUE
[¶2] Appellant presents one issue which we have restated:
Is a probation officer an “employee ... of a state ... correctional system” under
Wyo. Stat. Ann. § 6-2-303(a)(vii) ?
FACTS
[¶3] Appellant was employed as a probation and parole agent by the Wyoming Department of Corrections, Division of Field Services. In that capacity, Appellant supervised probationers and parolees. In May 2011, Appellant began supervising M.C. as a result of her participation in a drug court treatment program. Appellant‘s supervisiоn of M.C. ceased after her completion of the treatment program in August 2012. M.C.‘s probation was scheduled to expire on April 27, 2013. However, on April 11, M.C. tested positive for methamphetamine, and the State moved to revoke her probation. After a hearing, the district court found she had violated the terms of her probation. As a result, the court revoked M.C.‘s probation and re-imposed her original sentence of 18 to 24 months. The court imposed an additional 45-day term in jail and suspended the balance of the sentence in favor of 18 months probation conditional on M.C.‘s re-application to and completion of the drug court program.
[¶4] Appellant continued to have contact with M.C. after she completed her initial drug treatment program and the two began a romantic relationship in January 2013. Appellant visited M.C. at her residence to “hang out.” In February 2013, Appellant and M.C. began a sexual relationship. At least one of their sexual encounters occurred in Appellant‘s office. Appellant‘s sexual relationship with M.C. ended in May 2013. Although Appellant was not M.C.‘s supervising agent during the period of their sexual relationship, he was aware that she was under the supervision of another agent employed by the Wyoming Department of Corrections.
[¶5] M.C. reported her relationship with Appellant to her probation officer. That report ultimately resulted in the State charging
§ 6-2-303. Sexual assault in the second degree.
(a) Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting sexual assault in the first degree:
...
(vii) The actor is an employee, independent contractor or volunteer of a state, county, city or town, or privately operated adult or juvenile correctional system, including but not limited to jails, penal institutions, detention centers, juvenile residential or rehabilitative facilities, adult community correctional facilities, secure treatment facilities or work release facilities, and the victim is known or should be known by the actor to be a resident of such facility or under supervision of the correctional system[.]
Appellant moved to dismiss the charge under
[¶6] In accordance with a plea agreement, Appellant entered a conditional guilty plea to an amended charge of third-degree sexual assault under
STANDARD OF REVIEW
[¶7] In this case, we must determine whether Appellant is an “employee ... of a state ... correctional system” under
DISCUSSION
[¶8] In his only issue, Appellant contends the district court erred in denying his motion to dismiss because
[¶9] Appellant further claims that interpreting “correctional system” to encompass probation is contrary to the intent of the legislature. He also addresses the final element in the statute, which requires that “the victim is known or should be known by the actor to be a resident of such facility or under supervision of the correctional system.” He asserts that “under supervision of the correctional system” does not mean supervision of probationers. Appellant ac-
[¶10] In response, the State contends that Wyoming law forbids a probation officer from having sexual relations with a probationer. The State contеnds
[¶11] In determining whether Appellant is an employee of a state correctional system, we apply our usual rules of statutory interpretation: “Our paramount consideration is the legislature‘s intent as reflected in the plain and ordinary meaning of the words used in the statute. Initially, we determine whether the statute is clear or ambiguous.” Spreeman, ¶ 10, 278 P.3d at 1162.
A statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. Unless another meaning is clearly intended, words and phrases shall be taken in their ordinary and usual sense. Conversely, a statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations. In determining whether a statute is ambiguous we begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia. When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction.
Jones v. State, 2011 WY 115, ¶ 11, 256 P.3d 536, 541 (Wyo.2011). As noted above, both parties assert that the statute is unambiguous.
[¶12] We must determine what the legislature intended by the phrase “employee ... of a state ... correctional system.” It is undisputed that Appellant is an “employee” of the “state.” The controversy in the present case is limited to the meaning of “correctional system.” Although “correctional system” is not defined in
[¶13] In Wyoming, the entity primarily responsible for administering Wyoming‘s correctional system is the Department of Corrections. Wyoming‘s prisons are assigned to the Department of Corrections.
[¶14] As indicated above, it is undisputed that Appellant was employed by the state as a probation officer. A probation officer is “an employee of the department of corrections, division of field services, who supervises a parolee or probationer.”
[¶15] Our interpretation of
[¶16] Appellant asserts that inclusion of the phrase “or under supervision of the correctional system” is necessary in order to extend the statute‘s application to victims housed in community corrections or work release facilities because, aсcording to Appellant, residents of such facilities are “not necessarily considered inmates or residents” of correctional facilities. We are not persuaded by Appellant‘s argument. The plain language of the statute provides no such limitation. The statute provides protection to victims who are “under supervision of the correctional system.”
[¶17] Appellant urges us to adopt an interpretation of
[¶18] Further, Appellant claims that if the legislature had intended to extend the statute‘s application to persоns on probation and parole, it would have specifically included victims on probation or parole. Appellant notes that similar statutes in some jurisdictions expressly apply to victims on probation or parole.5 Appellant also notes
[¶19] In an effort to support his claim that
A canon of сonstruction holding that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed. For example, in the phrase horses, cattle, sheep, pigs, goats, or any other farm animals, the general language or any other farm animals—despite its seeming breadth—would probably be held to include only four-legged, hoofed mammals typically found on farms, and thus would exclude chickens.
According to Appellant, because each of the examples listed in the statute refers to a detention or treatment facility, we must interpret “correctional system” to mean only those employees who work in correctional facilities. We do not agree.
[¶20] The statute at issue in the present case does not set forth “general words, following an enumeration of words with specific meanings,” as did the rule at issue in RME Petroleum. The issue in that case was whether royalties and production taxes were “direct costs of producing” oil and gas under Depаrtment of Revenue rules. The pertinent rule provided as follows:
“Direct costs of producing” includes labor for field and production personnel whose primary responsibility is extraction of crude oil, lease condensate, natural gas and other mineral products removed from the production stream before processing; materials, and supplies used for and during the production process; depreciation expense for field equipment used to take the production stream from the wellhead to the point of valuation; fuel, power and other utilities used for production and maintenance; gathering and transportation expenses from the wellhead to the point of valuation; ad valorem taxes on production and transportation equipment; intangible drilling costs, including dry hole expense; and other direct costs incurred prior to the point of valuation that are specifically attributable to producing mineral products.
RME Petroleum, ¶ 20, 150 P.3d at 682 (emphasis added) (quoting Department of Revenue Rules, ch. 6, § 4b(w)). We applied the doctrine of ejusdem generis to conclude that royalties and production taxes did not constitute “other direct costs“:
To determine whether royalties and production taxes can be considered “other direct costs” contemplated by Rule § 4b, we apply the doctrine of ejusdem generis. “Such general words, following an enumeration of words with specific meanings,
should be construed to apply to the same general kind or class as those specifically listed.” Powder River Coal [v. State Bd. of Equalization, 2002 WY 5], ¶ 19, 38 P.3d [423,] 429 [(Wyo. 2002)]. Applying this principle to Rule § 4b, one easily concludes that the detailed list of costs are not in thе same class or of the same nature as royalties or production taxes.
RME Petroleum, ¶ 46, 150 P.3d at 689-90. Unlike the rule at issue in RME Petroleum, the statute in the present case specifically provides that employees of a state correctional system are “not limited to” employees of the enumerated facilities. Inclusion of this phrase suggests that the meaning of “correctional system” should not be limited by reference to the examples listed in the statute. Moreover,
[¶21] We note that other jurisdictions have also determined that application of ejusdem generis is not appropriate every time a list of specific examples is accompanied by a general term. Courts in these jurisdictions have held, first, that the rule of ejusdem generis applies only to general words following an enumeration of specific examples, and second, that the phrase “including, but not limited to” is inconsistent with the application of the rule. In United States v. West, 671 F.3d 1195, 1201 (10th Cir.2012), the court rejected application оf the rule to a federal statute defining a “playground” as “an outdoor public facility ‘containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards.’
The principle of ejusdem generis does not apply here because the statute‘s plain meaning is apparent. An apрlication of ejusdem generis would narrow Congress‘s definition of “children” from people “under 18 years of age” to those young enough to be able to play on swingsets, slides, and teeter-boards. In addition, we need not apply ejusdem generis because Congress modified its list of examples with the phrase “including, but not limited to.” That phrase “mitigates the sometimes unfortunate results of rigid application of the ejusdem generis rule.”
West, 671 F.3d at 1199 (quoting Migi, 329 F.3d at 1088-89) (footnote omitted). The Tenth Circuit reached the same conclusion and also noted that courts have historically employed the principlе of ejusdem generis to limit general terms following specific terms:
As an interpretative aid, the principle of ejusdem generis, properly applied, is a canon of construction that “[o]rdinarily ... limits general terms which follow specific ones to matters similar to those specified.” Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (1936). But we resort to the principle “not to obscure and defeat the intent and purpose of Congress, but to elucidate its words and effectuate its intent.” [United States v.] Alpers, 338 U.S. [680,] 682[, 70 S.Ct. 352, 94 L.Ed. 457 (1950)]. “[W]e do not woodenly apply limiting principles every time Congress includes a specific example along with a general phrase.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008).
...
[C]ourts have historically employed the principle of ejusdem generis to limit general terms following specific terms. See Black‘s Law Dictionary 556 (8th ed.2004). In
§ 860(e)(1) , however, Congress did not employ specific terms followed by general terms in providing examples of “apparatus.” Rather Congress described “apparatus” as “including, but not limited to, sliding boards, swingsets, and teeterboards.”21 U.S.C. § 860(e)(1) (emphasis added). In the analogous context of interpreting a contract that contained the phrase “including, but not limited to,” then Judge Alito told us that “[t]he rule of ejusdem generis applies only if the provision in question does not express a contrary intent. Thus, since the phrase ‘including, but not limited to’ plainly expresses a contrary intent, thedoctrine of ejusdem generis is inapplicable.” Cooper Distrib. Co. v. Amana Refrig., Inc., 63 F.3d 262, [280] (3d Cir.1995) (Alito, J.). Notably, this is exactly what the Ninth Circuit told us in Migi, wherein the court refused to apply ejusdem generis “because Congress modified its list of examples [in § 860(e)(1) ] with the phrase ‘including, but not limited to.‘” Migi, 329 F.3d at 1089; see also Cintech Indus. Coatings, Inc. v. Bennett Indus., Inc., 85 F.3d 1198, 1202-03 (6th Cir.1996) (following Cooper Distrib.).
West, 671 F.3d at 1200-01 (footnotes omitted; emphasis in original). See also NISH v. Rumsfeld, 348 F.3d 1263, 1268 (10th Cir. 2003) (“Because ejusdem generis is only to be apрlied to determine the scope of a general word that follows a specific term, that canon has no relevance here.“) (emphasis in original).
[¶22] Similarly, in Lyman v. Town of Bow Mar, 188 Colo. 216, 221, 533 P.2d 1129, 1132 (1975), the Colorado Supreme Court rejected application of ejusdem generis to a statute defining a “public utility” as “one or more persons or corporations that provide electric or communication service to the public by means of electric or communication facilities and shall include any city, county, special district, or public corporation that provides electric or communication service to thе public by means of electric or communication facilities.” The court concluded that
[A]s we said in Martinez [v. People, 111 Colo. 52, 137 P.2d 690 (1943)], the ejusdem generis rule is used to construe general words in a statute “as applicable only to persons or things of the same general nature or class as those enumerated” when “general words follow the enumeration of particular classes of persons or things.” 111 Colo. at 57-58, 137 P.2d at 692-93 [emphasis added]. In the statute in question here, the general words “public utility” precede the specific enumeration of examples. Further, the word “include” is ordinarily used as a word of extension or enlargement, and we find that it was so used in this definition. To hold otherwise here would transmogrify the word “include” into the word “mean.” See Helvering v. Morgan‘s, Inc., 293 U.S. 121, 55 S.Ct. 60, 79 L.Ed. 232 (1934); American Surety Co. of New York v. Marotta, 287 U.S. 513, 53 S.Ct. 260, 77 L.Ed. 466 (1933).
Lyman, 533 P.2d at 1133 (emphasis in original). Consistent with the reasoning of these cases, we conclude that the rule of ejusdem generis does not provide an appropriate foundation for our interpretation of
[¶23] For the same reasons, we are also not persuaded that the doctrine of noscitur a sociis should guide our interpretation of the statute. Similar to ejusdem generis, noscitur a sociis counsels “that general and specific words are associated with and take cоlor from each other, restricting general words to a sense analogous to the less general.” Sponsel v. Park County, 2006 WY 6, ¶ 16, 126 P.3d 105, 110 (Wyo.2006) (citing Black‘s Law Dictionary 1087 (8th ed.2004)). Because the statute specifically provides that employees of the state correctional system are “not limited to” employees of the enumerated facilities, the doctrine of noscitur a sociis does not provide a useful guide to interpretation of the statute. Further, noscitur a sociis is helpful only in discovering the meaning of ambiguous terms. See United States v. Stevens, 559 U.S. 460, 474, 130 S.Ct. 1577, 1588, 176 L.Ed.2d 435 (2010) (“As that canon recognizes, an ambiguous term may be given more precise contеnt by the neighboring words with which it is associated.“) (citation and quotation marks omitted). As indicated above, we conclude that the statute is unambiguous. Accordingly, there is no need to resort to the principle of noscitur a sociis to aid our interpretation of the statute.
[¶24] Appellant also claims that his interpretation of
[¶26] In sum, we conclude that
[¶27] Affirmed.
Notes
§ 6-2-304. Sexual assault in the third degree.
(a) An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault in the first or second degree:
...
(iii) The actor subjects a victim to sexual contact under any of the circumstances of
§ 6-5-201. Definitions.
(a) As used in this article:
...
(ii) “Official detention” means arrest, detention in a facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or detention in any manner and in any place for law enforcement purposes. “Official detention” does not include supervision on probation or parole or constraint incidental to release on bail[.]