Bоbby L. GILBERT, Appellant, v. STATE of Oklahoma, Appellee.
No. O-87-637.
Court of Criminal Appeals of Oklahoma.
Nov. 18, 1988.
765 P.2d 1208
BUSSEY, Judge:
THE OPINION OF THE COURT OF APPEALS IS VACATED, AND THE TRIAL COURT‘S ORDER DENYING GARNISHMENT IS AFFIRMED.
DOOLIN, C.J., HARGRAVE, V.C.J., and LAVENDER, KAUGER and SUMMERS, JJ., concur.
HODGES and SIMMS, JJ., concur in result.
ALMA WILSON, J., dissents.
Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
BUSSEY, Judge:
Appellant, Bobby L. Gilbert, entered pleas of nolo contendere to four counts of Violation of a Protective Order in the District Court of Tulsa County, Case Nos. CRM-86-488 and CRM-86-507. He received a six (6) month suspended sentence on each count. The State filed applications to revoke the suspended sentences in each case, alleging further violations of the protective order. This appeal is brought from the order of the District Court revoking the suspended sentences.
The record reflects that on February 27, 1986, an ex parte emergency protective order was issued against appellant pursuant to the Protectiоn from Domestic Abuse Act, 1982 Okla. Sess. Laws, Ch. 255, § 1 et seq., now amended as
In April, 1986, appellant was charged with four counts of violating the March 10 order by kicking down his wifе‘s door, breaking out the rear window and damaging the grill of her car, and threatening her over the telephone. He pled nolo contendere to each charge. The trial court sentenced him to six (6) months on each, but suspended the sentences on certain conditions, including a provision that appellant not violate any laws.
In August, 1986, the State filed an applicatiоn to revoke the suspended sentences. The application was not heard until December, 1986. After both sides presented their evidence, the district court revoked the suspended sentеnces on the basis of phone calls made to the wife on August 22, 1986, September 8, 1986, and October 29, 1986, in violation of the protective orders. The calls involved harsh language, threats of harm, threаts to prevent the wife from seeing her son, and a warning that “some-
In his first assignment, appellant attacks the constitutionality of the Protection from Domestic Abuse Act, claiming that it is vague, ambiguous, and overbroad. First, he claims that “visit” is not a defined term, and that a person of ordinary intelligence is unable to ascertain its meaning in the context of an order authorized by
Appellant additionally asserts that the phrase, “or otherwise interfere with,” is unconstitutionally vague and ambiguous. This argument must also fail. Under the doctrine of ejusdem generis, where general words follow particular words, the general words will be considered as appliсable only to things of the same general character, kind, nature, or class as the particular things, and cannot include wholly different things. Nucholls v. Board of Adjustment of the City of Tulsa, 560 P.2d 556, 559 (Okla.1976). In the Act, “otherwise interfere” is immediately preceded by “visit, assault, molest, [or] harass.” Applying the doctrine to this statute, it is clear that the interference contemplated must be of the same general сharacter, kind, nature, or class as visit, assault, molest, or harass. The statute is not unconstitutionally vague on this basis.
Finally in this assignment, appellant asserts that the Act is unconstitutionally overbroad beсause it operates to eliminate a person‘s freedom of speech with his or her spouse. We first reject any notion that the First Amendment to the United States Constitution or Article 2, § 22 of the Oklahoma Constitution ever covered threatening or abusive communications to persons who have demonstrated a need for protection from an immediate and present dangеr of domestic abuse. Moreover, this argument is apparently premised upon the expansive definition of “visit” which appellant would use to strike the Act for vagueness. Where an act is readily subject to a narrowing construction which would avoid violation of the overbreadth doctrine, then that narrow construction should be applied and the act should be upheld against a facial challenge. C.f., Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975). As shown above, “visit” is readily subject to a narrow construction, and we hold that the construction recognized in this opinion does not have a real and substantial effect on any legitimate and constitutionally protected speech. See Erznoznik, supra. Accordingly, appellant‘s first assignment is without merit.
In his second assignment, appellant asserts that he was denied both procedural and substantive due process by the protective orders of March 10, and September 19. First, he claims that he received inadequate notice оf the hearing on September 19. Although he admitted in the revocation hearing that he was present at the March 10, hearing when the district judge set the hearing for September 19, he denied that he was еver informed of the specific date on which the hearing would be held, denied that he received a copy of the order from the judge on March 10, and went so far as to deny that he had еver seen the March 10, order prior to the revocation hearing.
His claims are simply unsupportable on the record provided to this Court. Even if appellant had not obtained a сopy of the protective order on March 10, we note that a copy of that order was attached to the information in Case No. CRM-86-488, a copy of which was provided to aрpellant. Another copy of the order was attached to the information in CRM-86-507, a copy of which was also provided to appellant. Furthermore, appellant pled nolo contendere to the charges in each case. No attempt was made to withdraw the pleas, and the judgments in these cases are final. The legal
Appellant‘s substantive due process argument also must fail. Although hе relies upon City of Edmond v. Wakefield, 537 P.2d 1211 (Okla.1975), to describe what is involved in substantive due process, appellant makes no attempt in his brief to demonstrate how the record in this case reflects a denial of substantivе due process. We cannot find that the Act arbitrarily deprives citizens of their liberty, nor that the trial court‘s action did so in this case. This assignment is without merit.
In his final assignment, appellant asserts that nonе of his conduct violated any laws, and therefore, there was no basis to revoke his suspended sentences.
This argument wholly overlooks his harassing phone calls which were in violation of а protective order. Violation of a protective order is a misdemeanor under
Finding no basis for reversal, the orders of the District Court of Tulsa County revoking appellant‘s suspended sentences in Case Nos. CRM-86-488 and CRM-86-507 are AFFIRMED.
BRETT, P.J., concurs in results.
PARKS, J., specially concurs.
PARKS, Judge, specially concurring:
Although I agree in the majоrity‘s disposition of appellant‘s case, I write separately to address the question of constitutionally protected speech. Initially, it should be noted that