Giles v. State

analogy prosecutor’s State that with the attempt was an confusing and understanding Kelley’s lev- jury in

assist the Kenyon resulting behavior.

el fear by this plain error demonstrated

has not statement, find Be- and we no error.

single error, no we need we have found

cause the issue of cumulative error.

consider af- and sentence is judgment

firmed. WY 101 (Defendant), GILES, Appellant J.

Steven Wyoming,

The STATE of (Plaintiff).

Appellee

No. 02-63. Wyoming.

Supreme Court of

Sept.

Representing Appellant: M. Kenneth Ko- ski, Defender; State Public Donna D. Do- monkos, Counsel; Appellate and Tina N. Ke- rin, Appellate Senior Assistant Counsel. Representing Appellee: MacMillan, Hoke General; Rehurek, Attorney Paul Deputy S. General; Attorney Pauling, and D. Michael Senior Attorney Assistant General. HILL, C.J., GOLDEN, Before KITE, LEHMAN, VOIGT, JJ. LEHMAN, Justice. trial, appel-

[¶ 1] After convicted (Giles) immodest, lant Steven J. Giles im- moral, or indecent liberties with a child in (Lex- Wyo. violation Stat. Ann. 2003).1 isNexis challenges Giles the constitu- tionality of that statute. study, After careful reject Nevertheless, challenges. Giles’ because the was not adequately instruct- ed, we reverse remand. (LexisNexis 2003), felony. Except Ann. provided by of a subsection part, provides: section, applicable (b) person of this convicted under shall section be fined less (a)Except constituting than one circumstance first, ($100.00) hundred sexual assault in the or dollars nor more than second third de- one ($1,000.00) gree 304, imprisoned through thousand as defined W.S. 6-2-302 6-2- dollars or immodest, penitentiary (10) any person knowingly taking years, ten more than any or immoral or indecent liberties with knowingly causing child both. encouraging any child to (c) section, encourage cause or child to another commit As used in this "child” means a guilty eighteen years. him immoral or act under the questioning by police, group. Upon ISSUES using marijuana Giles admitted and metham- initially forth the issues on set Giles phetamine at motel having and admitted appeal as: intercourse with MB on two occasions insufficient evi- I. there was Whether the bedroom of suite. appellant, given the man- to convict dence jury was instructed[.] in which the trial, ner during At MB testified uncharged in her first sexual encounter with court re- the trial erred II. Whether Giles, group marijuana, the smoked she appellant’s requested instructions fusing Giles, then sex with him. kissed and had “totality concerning and of cir- consent Giles, activity urging of at the This cumstances”!.] respec- of and there was no discussion their briefing requested court additional After this ages. tive MB further testified that between concerning issues to address constitutional at this first encounter and the incident issue 14-3-105, supplemented issues on Giles bring up in this Giles did not sub- appeal to include: ject having again, intercourse with her nor as I. 14-3-105 unconstitutional Is W.S. they during did have sexual intercourse facially vague? it is fact, time frame. In MB testified she I. Is 14-3-105 unconstitutional II. W.S. having did not think Giles was interested appellant’s case? applied she sex her. MB also admitted that had partner, pri- with another sexual intercourse FACTS her with Giles. to first encounter Early morning April in the [¶ 3] addition, MB that she did not feel testified (the 13-year-old girlfriend of MB older than she and that she Giles was lot case) subject the bridal minor in this rented mature than Giles. MB felt she more Gillette, Wyoming. Inn in the Clarion suite at at transpired testified to what further Mends, Giles, along other ac- with several April Inn These 2001. facts Clarion April to motel. 3 was companied girl Rather, not contested at trial. Giles’ were and, just day school was before school acts of counsel admitted defense begin, and left the about to Giles others place, but ar- sexual intercourse had taken picked up stop bus and MB motel “immodest,” gued that actions were not these to the school bus to where she waited board “immoral,” Giles did or “indecent” liberties. junior high school. testify. motel, MB Arriving back at the and [¶ 4] conference, jury At the instruction marijua- group smoked other members objected jury two instruc- attorney to Giles’ After a methamphetamine. na used and The first in- the State. tions submitted time, to a Giles and MB retired bedroom jury to definitions con- struction offered years age the suite. MB was “immoral,” “immodest,” cerning the words 19,1987; time, having Giles been born March “indecent,” the second instruction and while earlier, days having been just had turned 18 was not a jury that consent informed the MB considered born on March charge the victim less when defense boyfriend they had her because been Giles years age. than sixteen district 2000 and seeing each other since October of instructions, eventually and accepted these previous had intercourse on one had sexual given jury. they to were day, MB had On this Giles and occasion. jury in- offered Defense counsel [¶7] While still sexual intercourse twice. B, C, instructions bedroom, and E. These phone up the room structions call came to State, 956 P.2d warning Pierson v. motel were based on from a member of the staff (Wyo.1998), sought to introduce and police Giles group that the were there. issue, age, despite MB’s and attempted as an hurriedly got consent and dressed and MB totality However, of cir- consider the police ar- told the to the room. leave con- deciding whether Giles’ cumstances accomplished this could be rived before “immoral,” “immodest,” MB, Giles, other members of duct amounted detained person ordinary sensibility a child. The fair “indecent” liberties notice contemplated these instructions. court refused conduct is forbid- Wyo., den.’ Keser v. deliberations, During (1985), quoted Wyo., in Shunn v. questions submitted two to the district court. While there question asked whether a The initial strong presumption constitutionality, ‘[a] under sixteen could consent unconstitutionally vague statute is when question The second intercourse. intelligence “men of common must neces- asked, effect, in. whether the must find sarily guess meaning at its differ immodest, immoral, that Giles’ actions were application.”’ Werger, its Jenkins v. responding jury, and indecent. F.Supp. (D.Wyo.1983), quoted jury to district court advised the refer 1 State, supra. underlying Shunn v. “The already given instructions and principle is that no man shall be held crim- “immodest, told them that -immor- the terms inally liable for conduct which he could al, disjunc- indecent liberties” were ’ reasonably proscribed.” understand to be tive, representing among alternative choice State, supra, Keser (quoting v. at 265-266 later, things. Fifty-eight minutes Harriss, 612, United States v. 347 74 U.S. guilty returned verdict. 808, (1954)).” (Ci- 812, S.Ct. 98 L.Ed. 989 initially assigned This case omitted.) tation expedited upon docket and considered State, Wyo., See v. also Shunn 742 P.2d Subsequently the briefs. this court advised (1987). requirement 775 fair notice parties supplemental ‘it désired process State, concept. Armijo a due v. briefing argument and oral on the constitu- (1984)], P.2d supra; [678 Dover v. 864 3—105(a). tionality Wyo. Stat. Ann. 14— State, (1983). Wyo., 664 P.2d 536 State, 1260, see In accord Caton v. 709 P.2d STANDARD OF REVIEW (Wyo.1985) State, 1270-71 and 649 v. Carfield [¶ 10] We review constitutional is 865, (Wyo.1982). P.2d 870 State, 174, Joyner sues de novo. v. 2002 WY Nevertheless, pointed out ¶ 7, ¶ 331, 7 (Wyo.2002) (citing Tay 58 P.3d State, v. Sorenson 1033: State, 15, (Wyo.2000)). v. lor 7 P.3d 19 See prohibition against [T]his vague- excessive ¶ State, 9, 14, Pope v. 2002 38 P.3d WY every ness does not invalidate statute ¶ 1069, State, (Wyo.2002). Browning 14 v. reviewing which a court believes could ( ¶ ¶12 93, 12, 1061, Wyo. 2001 32 WY P.3d greater precision. have been drafted with 2001); State, 76, ¶10, Saiz v. 2001 WY 30 Many will statutes have some inherent ¶ State, 21, (Wyo.2001); Campbell 10 P.3d v. “(i)n vagueness, for English most words 649, (Wyo.2000); 999 P.2d 657 v. Scadden phrases there lurk uncertainties.” State, 1036, (Wyo.1987); 732 P.2d States, 282, v. Robinson United 324 U.S. State, 263, (Wyo.1985); Keser v. 706 P.2d 266 286, 666, (1945). 668, 65 S.Ct. 944 89 L.Ed. State, 1031, (Wyo. Sorenson v. 604 P.2d 1033 lawyers may Even trained find it neces- 1979); State, 270, and Sanchez v. 567 P.2d sary dictionaries, treatises, legal to consult (Wyo.1977), recognized 274 we also judicial opinions they say may before strong there is a presumption in favor of the certainty may what some statutes statute, constitutionality of a with all doubt compel or forbid. Cf. Nash v. United resolved in its favor. States, 373, 780, 229 U.S. 33 S.Ct. 57 L.Ed. However, State, Hobbs v. 757 (1913); 1232 United States v. National 1008, (Wyo.1988) (quoting P.2d 1011 v. Britt Dairy 29, Corp., 372 Products U.S. 83 State, 426, (Wyo.1988)), 752 P.2d 428 we set 594, (1963). S.Ct. 9 L.Ed.2d 561 All the forth: requires Due Process Clause is that vague- warning “The constitutional standard for give law s efficient that men ness of a criminal statute has been defined themselves so avoid court. ‘An ordinance or sup- statute that which is (Emphasis forbidden. vagueness omitted.) void for give if it fails to plied and footnote Rose v.

1031 243, 48, 49-50, be found. Instructions must be considered Locke, 96 S.Ct. 423 U.S. (1975). whole, instructions, 244, and individual L.Ed.2d 185 them, singled should not out and parts State, in isolation. Black v. considered consistently held that ... has This Court ¶5 ¶ 72, 5, 298, (Wyo.2002) 46 P.3d WY offensive to precision is itself lack of ¶ State, 109, 8, (citing v. Ogden WY process. “... of due requirements ¶ (Wyo.2001); Coburn require impos- does not [T]he Constitution ¶ 2001 WY 20 P.3d standards”; required all that sible (Wyo. 4 P.3d Merchant “conveys sufficiently language 2000)). Prejudice will be determined to exist proscribed warning as to the deñnite appellant an demonstrates that where un- measured common conduct when given instruction confused or misled the derstanding practices ...” United respect proper principles Petrillo, 1, 7-8, 67 S.Ct. 332 U.S. States ¶ (citing Lane v. law. Black 1538, 1542, (Emphasis sup 91 L.Ed. 1877. 1057, 1061(Wyo.2000); Wilson States, 354 U.S. plied.) Roth v. United (Wyo.2000)). 476, 491, 1 L.Ed.2d 77 S.Ct. DISCUSSION consistently held We have also Constitutionality § 14- of Ann. evaluating “when a statute determine 3-105 notice, must provides it sufficient only statutory lan- again consider not Challenge “Facial” any prior guage also court decisions but may A statute be chal limiting construction on placed a which have lenged vagueness its for constitutional “on applied specific it to the statute particular applied” conduct. face” “as State, 973, Griego P.2d 976 v. 761 conduct.” State, challenging at a Griego v. 975.2 When Illinois, v. U.S. (Wyo.1988) (citing 431 Ward vagueness statute for unconstitutional facial (1977); 767, 2085, 97 52 L.Ed.2d 738 S.Ct. statute party must demonstrate that the 243, Locke, 48, 46 96 S.Ct. v. 423 U.S. Rose constitution reaches a substantial amount of Stone, (1975); Wainwright 185 v. L.Ed.2d conduct, or ally protected statute 21, 190, 179 414 94 38 L.Ed.2d U.S. S.Ct. all. specifies no standard conduct at 507, (1973); York, New 333 U.S. Winters v. ¶ State, State, 11; v. at v. at Saiz Browning Further, (1948)). 665, 92 840 68 S.Ct. L.Ed. ¶ State, 657; 9; v. v. at Moore Campbell has recognized that the statute we have “[i]f State, 1113, 1115(Wyo.1996); 912 P.2d Lova previously applied to conduct identical been State, 408, 412 v. 901 P.2d complain that appellant, he cannot to that of State, 1359, (Wyo. v. Ochoa (citing lacking.” Id. Schwartzmil notice was 1993); State, 975; Griego v. at and Scadden (9th Gardner, F.2d ler v. State, Griego in at 1041-42. As stated v. at Locke). Cir.1984) and v. Rose 975: vagueness for addition, challenged is it is estab When a statute 14] well [¶ face, the statute duty on its the court examines to instruct lished that a trial court has a light complainant’s con- only not in general appli principles law on duct, might applied in it be A trial but at issue. court cable to the case v. instructing other situations. See Schwartzmiller given wide latitude Cir.1984). (9th Gardner, and, correctly 752 F.2d long as the instructions all appropriate not charge Facial review is covers state the law and the entire issue, not cases. reversible error will the relevant conduct, State, might complainant’s as it be but also WY

2. As in Alcalde v. identified hand, ¶ (Wyo.2003), applied a statute the other other On situations. challenged vagueness "on face” or challenged applied” for its be "as on an when a statute particular stat- applied” basis, When a "as conduct. solely in court the statute examines face, vagueness challenged its ute for complainant’s specific light conduct. only light court examines the statute not “[Fjaeial vagueness constitutionally review is not com pro- substantial amount ordinary judicial Indeed, canons of mon because although many tected conduct. de- permit party restraint do whose past involving challenges fendants in cases adequately de constitutionality 14-3-105 have as- criminal statute scribed to ‘attack protected serted that sexual relations involve language because the would [the statute] privacy rights, this court has made clear give warning similar fair with re rights apply only that such to sexual rela- spect might to other conduct which be involving tions between adults and not those ” within its broad and literal ambit.’ an adult and a minor. v. at Ochoa omitted.) (quot (Emphasis Id. at 1346 1363; v. Scadden at 1040. In a similar Levy, ing Parker U.S. 94 vein, although argue defendants have tried to (1974)). 2547, 2562, 41 S.Ct. L.Ed.2d 439 constitutionally pro- statute affected principle is sometimes religious right right This described tected and the to free standing. Levy, supra speech, Parker disagreed reasoning terms 2561; arguments State Hegge, groundless. at 89 such S.Ct. were Moore Wash.2d at and Ochoa 1363, goes explain: Ochoa v. on to Next, makes a pro- Giles’ due challenge A can vagueness “fa- cess/equal protection argument challenge” cial applied or an “as arbitrary discriminatory statute allows Griego, challenge. facts” 761 P.2d at 975. enforcement that affects a fundamental con- However, challenge” a “facial is available However, right. stitutional this court re- (1) two situations: when the statute rejected cently such claims. reaches a amount of constitu- substantial Appellant argues that decision conduct, tionally protected when charge him but not the minor female vio- specify the no statute is shown to standard equal protection rights lated his under the of conduct at all. If neither of situa- these Wyoming Fourteenth Amendment and the exists, only applied” an tions then “as chal- essence, Appellant Constitution. has Griego, lenge is available. P.2d at 975. separate First, raised two issues here. Neither situation exists under these argues Appellant only that the distinction Although argues facts. Ochoa that consen- him between and the victim is their sex. sual sexual relations are a fundamental posits probable He this as the for basis the constitution, right protected the that prosecutor’s charge decision to him and argument is without merit because this not the victim. This is a claim of selective consenting case does not involve two prosecution. argument, Ap- his second State, v. adults. Scadden 732 P.2d 1036 pellant argues that he and the victim are Therefore, (Wyo.1987). no fundamental similarly 14-3-105, situated under and right constitutional is broached. Addition- charging him under the statute and not the ally, previously have held that our we inde- victim equal protection rights. violated his cent liberties statute is not one of those prosecution A selective exists when it is no statutes standards at all. similarly demonstrated that others situat- Thus, Griego, 761 P.2d at 976. can Ochoa prosecuted ed have not been pros- and the only applied” argument. an make “as ecution of the is defendant on based an if considering req- When Giles has made the State, impermissible motive. v. Crozier t,o showing make “facial” uisite constitu- (Wyo.1994). 882 P.2d “The im- 14-3-105, challenge tional to we come to permissible motivation must be demon- the same conclusion as did the court by showing charge strated that the Ochoa. We hold Giles has failed to evidence deliberately unjustifiable based on an stan- that the statute reaches substantial amount designed dard to inhibit the exercise of protected constitutionally conduct. right by constitutional the accused.” Id. briefing In supplemental does Appellant similarly Giles claims that he was situ- present victim, argument not a detailed on first charged. the ated the who not criteria, that, identified Appellant that the statute reaches a From draws the conclusion prosecuting upon and children. The statute does vio- him basis the Appel- right equal protection. must his sex. Appellant’s victim late not the purely speculative and argument is lant’s ¶¶ State, 16-19, 2001 WY Misenheimer distinguish ignores salient facts some ¶¶ (Wyo.2001). prose- his. The position from the victim’s tries differentiate [¶ 18] While Giles any upon or all of relied cutor could have facts in this from the facts estab- the case deciding prose- following factors Misenheimer, any not draw lished do (1) be- age difference Appellant: cute Importantly, this substantial distinctions. (2) victim; relative him and tween an (although case involved adult Giles turned parties maturity related levels event) days eighteen just prior actions, Appellant’s ages; and their minor, fourteen, age while Misenheimer in- to the victim. supplying alcohol such minors, ages seventeen and thir- volved two is, in failed to show he Appellant has Misenheimer, Also, in this as in teen. victim, similarly way, situated Giles and there an difference between to prosecute his claim that decision victim; maturity levels of the relative solely ignores his sex him was based ages to their have been a parties related only specula- record and is facts factor; drugs were found determinative tion. Consequently, of the motel. scene analysis begins with equal protection An shown that a cannot conclude that Giles has stat- question of whether the threshold right constitutional has fundamental been similarly per- issue treats situated ute at broached. ], P.2d unequally. Ellett State [v. sons [940,] (Wyo.1994) Appellant and at 944 ]. [ Furthermore, has re- similarly within victim are situated peatedly held 14-3-105 is one they are §of 14-3-105 because context no all. those statutes which has standards at (c) as defined section both “child” State, State, Griego Ochoa treating The statute the statute. at 976. Schmidt WY See persons unequally be- similarly situated 29 P.3d 76 Misenheimer being subjected to a criminal cause one 273; P.3d Pierson v. 2001 WY not. penalty and the other is 1119; P.2d Moore v. analysis deter- step The next 408; 1113; Lovato v. scrutiny apply of we mine what level (Wyo.1988); v. Britt unequal treatment determine whether P.2d 1356 Ketcham v. equal protection. The classifica- violates Al- v. 604 P.2d 1031. and Sorenson age persons at issue here involves tion — argue of though tries to that some Giles Age eighteen years is not old. par- distinguishable given these cases are protected Massachusetts Board class. of case, provide in his he does not ticular facts 307, Murgia, 427 U.S. 314- v. Retirement provides adequate argument that statute 2562, 2567, 15, 96 S.Ct. L.Ed.2d required. all The further no standards at 1, Reed, (1976); People v. 148 Ill.2d by intermingle presented Giles arguments (1992). 282, 455, 457-58 Ill.Dec. 591 N.E.2d applied” constitutional his “facial” “as Therefore, only need determine wheth- we challenges. Accordingly, will address we rationally to a §er related 14-3-105 ap- remaining as an “as arguments Giles’ above, objective. As state noted legitimate challenge. plied” protect purpose of exploitation and children from Challenge Applied” “As absolutely ques- can be no abuse. There argues that Giles protection legitimate is a that such tion what acts particularity fails describe objective. Section 14-3-105 bears state it relies on criminal because objective are considered relationship to that rational Thus, he Giles asserts that terms. it be- undefined obtaining is a reasonable method of prior inadequate notice that any per- afforded recognizes that the statute cause minors, engaged constituted viola son, which he capable preying acts including ably tion Rath of the indecent liberties statute. what conduct is rendered er, Millard, only Giles contends that was after the it. criminal State v. 18 Vt. 170_” judgment 574, passed his based on 46 Am.Dec. Dekelt Peo- “immoral,” terms of undefined “immod ple, 44 Colo. 99 P. 331-332 est,” “indecent,” (1909). that he could un that his acts constituted criminal derstood position Gallegos This reiterated consideration, reject Upon conduct. (1971). People, 176 Colo. 489 P.2d 1301 argument. Giles’ analyze do a vagueness challenge We Sorenson in a vacuum but rather in the context of (citations omitted), and footnote this court language the statute which the is incor- argument: addressed similar Foster, porated. State v. 91 Wash.2d “immoral, If the words three immodest (1979). alone, indecent,” standing our were process require “Due does not that this consideration, might agree statute, with its purpose, spell beneficent appellant. meanings Their to each of sev- out exact words what constitutes the ordinary intelligence persons eral punishable.” conduct made Millhollan point differ to a wherein it could not be 165, 143 221 Ga. S.E.2d required said that conduct forbidden (1965); State, Alaska, Anderson v. certainty. is set forth with reasonable On (1977). P.2d 351 hand, application the other strict of the “Although language of the statute is definitions words could lead prohibited broad and the behavior is ordinary conclusion that a intelli- very general, necessary this seems gence know would such as subject the nature of its matter....” fondling twelve-year-old of a the breast (Emphasis supplied.) People proscribed by clearly child is them and is Beaugez, 232 Cal.App.2d 43 Cal. prohibited by morality” the “standard of Rptr. society. vagueness “The root doctrine is a event, we need not consider the rough princi- idea fairness. It is not a three words their own connotation as ple designed to convert into a constitu- They suggested by appellant. are accom- practical tional dilemma the difficulties panied in the statute the words “liber- in drawing gener- criminal statutes both ties” and “child” which narrow down and enough to al take into account variety designate certainty with reasonable sufficiently specif- human conduct and required or acts and conduct forbidden. provide warning ic to fair that certain such as “Liberties” are common sense of kinds of prohibited. conduct are We society regard as im- would indecent and agree Kentucky with the court when it proper. “Indecent liberties” is selfdefin- said: We believe that citizens who de- ing. “Indecent liberties” and “indecent as- obey sire to will statute have no sault” Accordingly, are convertible terms. difficulty understanding it....’ [Cita- unconstitutionally vague. the statute tion.]” Colten v. Commonwealth Ken- Sorenson, 1035, We went on to state in 104, 110, tucky, 407 U.S. 92 S.Ct. that: 32 L.Ed.2d 584 “True, regarded what shall be as ‘im- [¶ 22] This court further stated in Burton modest, immoral and indecent liberties’ ¶ ¶ State, 71, 24, v. 2002 WY 46 P.3d 24 specified is not particularity, with but (Wyo.2002): necessary. indelicacy that is not The subject it. forbids The common taking crime liberties community, sense of as well as with child is set out Stat. Ann. (LexisNexis decency, 14-3-105(a) 2001) sense of propriety, § and morali- ... The ty entertain, people generally trial court instructed the on the ele apply sufficient to the statute to each taking ments of the crime indecent lib ease, point and out unmistak- erties with a child accordance with

1035 sion, contact and 14-3-105(a). but sexual consen- suggests that § Burton intercourse. sual sexual “im phrase have should defined court modest, immoral for indecent liberties” added.)3 State, In (Emphasis v. Ketcham however, has, re This court jury. upheld 618 P.2d we the revocation of precisely define peatedly refused probation eighteen-year-old where an male “immodest, immoral or indecent lib phrase fourteen-year- had intercourse with a sexual State, e.g., Chapman v. erties.” See finding old no abuse of discretion female ¶28, ¶ WY P.3d the district court because such action violated State, P.2d Sorenson v. § 14-3-105. Instead, (Wyo.1979). is allowed to Likewise, upheld this court has by looking at apply its common sense of defendants under conviction totality pertaining to of the circumstances and further defined what actions constitute conduct. culpability of the accused’s “immoral,” “immodest,” “indecent” con- and Chapman, at 28. State, (holding duct. Britt v. P.2d ordinary intelligence would know Moreover, consistently held we forty-two-year-old rubbing male adult that, evaluating a statute to determine when penises grabbing and of thirteen- four- and notice, we must provides it sufficient teen-year-old boys clearly conduct which is 1) statutory language consider forbidden); State, Schwenke P.2d any prior decisions which have but also (Wyo.1989) (affirming the indecent liberties limiting on the statute placed construction adult who anal conviction an man had conduct, 2) specific it and applied or have son); with his minor and Auclair intercourse applied previously has if statute been State, (Wyo.1983)(upholding appellant. Griego to that of conduct identical of an adult male involved an conviction opinions of this at 976. Numerous relationship his incestuous thirteen- subject have it court on the made evident year-old daughter). having that an adult sexual intercourse with “immoral,” “immodest,” Griego a minor constitutes In 761 P.2d at 14-5-105. male and sucked a and “indecent” conduct wherein an adult fondled fact, reprehensible “dry- sexual fourteen-year-old In lesser but also female’s breast her, a viola humped” contact a minor also constitutes noted: in Derksen v. tion of the statute. As stated Sorenson, supra, ap- 14-3-105 was In 1383, 1388(Wyo.1993),where substantially plied to which was conduct ten-year-old male fe in an adult bound case appellant’s conduct identical hands, her clothes fon male’s removed (breast fondling). application of Given this her, penis her to his dled later forced touch statute, ordinary people would under- mouth, displayed put into her fell within appellant’s stand that pictures of and the the victim lewd himself the statute. mother: victim’s tandem, in 848 P.2d at Ochoa 1363, involving having male sexual an adult (Wyo. 699 P.2d 288 [v. McArtor minors wherein nolo intercourse with female 1985) immodest, ], taking a conviction entered, pleas said: were contendere was affirmed immoral or indecent liberties clearly liberties statute sexual Our indecent based on evidence of consensual conduct, McArtor, proscribes intercourse intercourse. Sorenson, State, minor, by engaged in Ochoa. We Montoya 822 P.2d with a [v. As illustrate, interpreted this to repeatedly statute (Wyo.1991) 363 and McArtor ] immodest, taking immoral engaged where an adult sexual the offense of apply punishes 761 Griego, a liberties conduct with minor. or indecent intercourse State, 976, v. 699 intru- citing McArtor which includes not sexual P.2d at female, a al an adult with minor a wherein intrusion 3. Sorenson v. State involved situation an male groped v. concerned adult twelve-year-old while McArtor State having an male a female's adult sixteen-year-old a clothing her sexual intercourse breast her unbuttoned over Montoya included female. The v. State case sexu- blouse. 1036 State, (Wyo.1985); v. year

P.2d 288 Auclair ual intercourse with a can sixteen old State, indecent, (Wyo.1983); P.2d Ketcham v. immodest and immoral. Un State, presented by der facts (Wyo.1980). As we 618 P.2d said Pierson had fair a Griego, notice that sexual rela decisions demonstrate “[t]hese . tionship inexperienced with an question, sixteen- applies, without child, year-old at consummated deliberate certain P.2d 976. One activities.” disregard of parents’ her interdiction and those is sexual activities intercourse another, legally while still married hold our with a minor. indecent We prohibited Wyo the state of unconstitutionally liberties statute is ming. There is no stat evidence vague applied Mr. Ochoa’s actions. discriminatory ute was enforced in a man pointed also out in v. We Lovato [¶26] Therefore, ner. Pierson’s constitutional State, 413, involving multiple 901 P.2d acts challenge must fail. sodomy an adult male minor State, 28, 27] [¶ Still Schmidt v. males: regarding an actions of adult male mastur suggests Appellant also that he could bating female, eleven-year-old front we having not have known that anal inter- said: taking course with a minor amounted Appellant revisits several constitutional Appellant’s indecent with a liberties child. challenges to the indecent liberties statute. argument on being borders ridiculous. will limit our We discussion of that issue This has Court stated that the indecent a reference to some of our cases wherein applies an liberties statute “where adult we have held that the statute is not void engage[s] in sexual mi- intercourse with a vagueness or otherwise unconstitution Ochoa, nor.” 848 P.2d at 1363. We do State, 1119, al. Pierson 956 P.2d 1123- any see difference between the cases (Wyo.1998); State, Moore 912 P.2d vaginal an adult hhs where intercourse State, (Wyo.1996); Lovato v. awith child and the cases where an adult 901 P.2d 412-13 Ochoa has intercourse with a anal child. Sexual State, (Wyo.1993). being intercourse defined as “sexual nothing Schmidt offers us new other between humans. Webster’s connection” persuasive wise that would cause us Dictionary Third New International reconsider or our holdings reverse as to person ordinary intelligence A constitutionality of that statute. would know that anal intercourse between an adult a is unquestionably child im- involving Moore v. a moral, immodest, and indecent behavior thirty-year-old having male sexual inter- proscribed and is under the statute. See sixteen-year-old course with a female, we (Wyo. Schwenke 768 P.2d 1031 upheld constitutionality §of 14-3- 1989) (affirming the indecent liberties con despite attempted an constitutional facial viction of man had a who anal intercourse religious-based challenge alleged and the son). with his consent of the victim. In Pierson v. 956 P.2d at Finally where we find our decision in Mi year-old married adult male sixteen senheimer v. 2001 WY P.3d developed relationship female escalat- seventeen-year-old concerning a having male fondling ed from into sexual intercourse and thirteen-year-old intercourse with a marriage eventual couple, female, void particularly Therein, instructive. concluded: remarked: purpose of the liberties agree We with the district as- court’s protect child, statute is to morals sessment that there is no reason a reason- expressly ably includes a intelligent seventeen-year-old could eighteen. Derksen not determine that sexual intercourse with 1387 (Wyo.1993) (quoting thirteen-year-old Sor was conduct which is enson, 1035). 604 P.2d at § .Pierson admits forbidden ordinary, 14-3-105. An that an adult’s in engaging reasonably intelligent seventeen-year-old sex

1037 age.... The defendant cannot contest supplying a thirteen- that could determine prior engag- “any in the to the fact that he is class of with alcohol year-old child any her forbidden his person,” in sexual acts with nor is there merit to ing juvenile A ascertain- vague statute lacks first fall conduct. claim that he is the to guilt. We establishing standards purview. able the See In re within statute’s § is not B., that previously held Conn.Supp. Michael 566 A.2d types facially vague to the of conduct (1989). Pierson, at proscribed. are that that, argues mat- The defendant as a Sorenson, 1123-24; 604 P.2d at 1034-35. § policy, apply ter of 53-21 should not to vague statute is not The indecent liberties they violators who are minors since are Appellant’s facts of applied to the themselves the class of children within on this court’s decision district protected by Despite the statute. is issue affirmed. interpreting defendant’s assertion omitted). (footnote Misenheimer, acts children include between ¶¶ stating 12 — 14: court went further This “playing would criminalize instances of prohibits statute The indecent liberties doctor,” interpret not law to will taking im knowingly “any [from] give sexually molest minors license modest, immoral or indecent liberties contrary It law’s other minors. to the 14-3-105(a) add any (emphasis ehild[.]” intent, sense, estab- to common ed). did The crux the issue is what then policy law’s lish withdraws the by The legislature “person.” mean victim in protection from the order within the indecent term is not defined violator, protect the even is a one who meaning of ordinary liberties statute. The minor. being very a human the word is broad: C., Conn.App. 569 A.2d In re John Collegiate individual. Merriam-Webster’s (1990). 1154, 1156 The exclusion of minors (1998); Dictionary Ed. Black’s 867 10th prohibitions of the indecent liber from (1990). The Dictionary Law 1142 6th Ed. purpose statute undercut ties would phrase clearer: scope of the cannot be protection of chil behind statute: being human or indi “Person” means reality are It is a that minors dren. sad by age or other vidual without limitation commit, of, just as capable and do crimes policy factors. The behind do. adults exploitation; from protect children reported sex increasing An number legislature intend imagine cannot involving children have demon- cases protection the law to withdraw the ed mo- problem of sexual strated that protect in order to from victim simply confined to adults lestation not Hildebrant, Mich.App. re offender. In children, abusing extends to adoles- but (1996). find We N.W.2d preadolescent minors commit- cent and by reply argument to a similar mi- upon younger even ting sexual acts succinctly Appellate Court Connecticut nors. point: on Annotation, Kole, Pro- M. Statute Susan he had The first claims that defendant Range Specified Age tecting in a Minors applies notice the statute no Activity as Rape Other Sexual a minor. actions of one who himself from within Applicable Minor pro- agree. Section 53-21 We cannot Defendant Age Group, 18 A.L.R.5th Protected “any engages person” vides that who (1994). 866, 1994 Statutes WL proscribed conduct is in violation in a manner that effectuates must be read Statutory language clear the statute. inclusion legislature’s intent face construed for what its will be meaning phrase minors within the says. Roque, State v. 190 Conn. “any person” accomplishes that ensur- 150, 460 The statute A.2d from sexual ing protection of children “any per- the definition of does limit but inflicted adults legislature free abuse son” to The adults. “any peers. phrase person” to, not, by their violators in terms and did define sufficiently put maturity an of clear individual 105. The attainment of sexual exploitation not a any age con- license for the sexual on sufficient notice that their children.[4] prohibitions of duct come within the the statute. summary, nu- there have been Furthermore, inclusion of minors Wyoming § 14- merous cases that have held meaning “persons” within of the word prohibits sexual intercourse between §in is consistent with the overall 14-3-105 giving adult males minor females Giles statutory framewoi’k established proper took notice that the acts he with the above, legislature. As noted indecent illegal. Arguably, victim were the additional part statutory a liberties statute is authority upholding case convictions under protect designed people scheme from falling for the statute acts short of sexual statutes, exploitation. sexual The assault put intercourse with a minor on Giles 6-2-304, §§ through 6-2-302 use the word illegal. proper notice that his acts were referring perpetrator. “actor” when to the presuming Even that Giles could be treated minor, That within the a although just word defined statutes he had turned 18 meaning, days question, “the accused of criminal before event our hold- 6-2-301(a)(i) Wyo. ing put § assault Ann. squarely Stat. the Misenheimer case [.] ” (LexisNexis 2001) added). (emphasis Ap- illegal Giles notice that his acts were pellant acknowledges that minors the statute. Misenheimer are sub- further ject prohibitions changing clarified that moral to the established in the fiber society §§ is not valid defense. sexual assault at 6-2-302 statutes Consistency through argues for 6-2-304. properly acknowledges [¶30] Giles that application meaning of the same previously we have held that indecent liber- word that included related statutes. Wyo- ties is not a lesser-included offense of argues Appellant also that he could ming’s sexual assault statutes. Derksen reasonably known that a sexual rela State, 845 P.2d points 1383. Giles then out seventeen-year-old tionship between Wyoming’s degree third sexual assault thirteen-year-old prohibited statute, (Lexis- Wyo. § Stat. Ann. 6-2-304 § support position, his 14-3-105. 2003), an age Nexis establishes consent Appellant points out children are years of age sixteen mandates that maturity reaching engaging sexual and are at years defendant be least four older than ages. sexual conduct earlier Wyo. the victim while Stat. Ann. reaching mere fact children are Therefore, does not include these criteria.5 is, however, maturity age at an earlier argues statutory Giles that this scheme leads Appel irrelevant to the of whether issue one believe that because sex consensual lant’s actions 14-3- person age were violation with a sixteen or older or be- fe) concurring specially opinion 4. In a in Misen- An actor assault commits sexual in the heimer, potential if, absurd results in future degree third under circumstances con- suggested cases was discussed. It was stituting sexual assault the first or second 1) legislature re-examine this issue to decide: degree: whether it intended the result in scenario (i) (4) years The actor is at least four older hand; 2) whether, given cited or case than the victim and inflicts sexual intrusion scheme, comprehensive statutory sexual assault (16) age on a victim under of sixteen applied liberties statute should years; or perpetrator when the is an adult four and/or (ii) subjects The actor is an adult and victim; 3) years older than the victim under the of fourteen types there were some of conduct that should be inflicting sexual contact without sexual in- considered for treatment. misdemeanor Misen causing on the trusion victim and without heimer, C.J., (Lehman, specially at 23 concur victim; bodily injury serious Nevertheless, ring). legislature has failed (iii) subjects The actor a victim to sexual date, leaving address these issues to these dilem contact under of the circumstances of outstanding. Again, encourage mas we would 6-2-302(a)(i) (iv) through W.S. or 6-2- legislature to address such issues. 303(a)(i) (vi) through inflicting without sexu- (LexisNexis 2003) al intrusion on the victim Ann. and without caus- provides: ing bodily injury serious to the victim. However, argument predicated is years age is such an within four of persons tween conjecture, 6-2-304, upon speculation be mere and as acts cannot § such legal under immodest, identify appropriate immoral, does not with au- indecent Giles or considered thority the However, specific employed reasons in § Misenheim- 14-3-105. legislatures. (footnotes omitted), Accordingly, ¶¶ those state we recog- er, Ann. is not hold Wyoming’s nizing distinctions between the to facts of vague applied this case. indecency stat- and its statutes sexual assault ute, clearly remarked: Jury Instructions readily indicates of these statutes

A review oper- to legislature intended them that the above, As noted coun Giles’ fact, integrated whole. ate as an jury proposed three instructions based on sel statutory hierarchical scheme evidences holding in Pierson v. our of through a series conditional framework 1119, district court The refused. hierarchy is top of this At clauses. proposed first instruction stated: “Consent assault, which, broadly degree sexual first charge of complete not a defense to the sexual contact. speaking, prohibits forcible ‘immodest, liberties,’ or immoral indecent may be degree sexual assault Second however, it is a material factor to be consid charged only “under circumstances determining whether the ered ‘liberties’ first de- constituting sexual assault taken ‘indecent’ or ‘immoral’.” The were Similarly, proceeds one down gree.” proposed instruction stated: “In de second hierarchy, degree sexual assault third termining whether the conduct ‘indecent charged under circumstances cannot be liberties,’ you totality of should consider the constituting degree first sexual or second proposed in the circumstances.” The last nature of assault. The hierarchical struction stated: statutory sign of the serious- scheme is given The consent must be considered re- crime and is ness attached each light of facts minor’s relevant imposed by penalties in the flected ability give an informed consent and the legislature on each. Defendant’s actions to secure consent. all protect statutes The sexual assault include, but are not Such circumstances statute, on persons. The indecent liberties to, maturity; limited the victim’s relative hand, only protection to offers other minor is experience; whether the emanci- years age. eighteen those than less pated; parental the extent involvement 14-3-105(c). It in that is also limited decisions; and in the minor’s evidence only in those circumstances applicable or manipulation coercion the Defendant’s first, constituting third de- second or of the minor. words, § 14- In other gree assault. addition, attorney object- Giles’ that are other- 3-105 criminalizes activities numbered 6 and ed to instructions consenting permissible between wise These instructions by the State. submitted parties under the when one of the adults given accepted by the court and were district years. age eighteen earlier, jury. first As indicated Therefore, disagree strongly with Giles’ advised the that words instruction such espoused argument. should be used within the instructions ordinary usual and argument and sense Finally, offers an taken their Giles [¶31] “im- provided for the words then definitions had similar statutes that other states that “immodest,” moral,” and “indecent.”6 in favor repealed have now them subject instruction stated: specific second comprehensive of more statutes. following you Additionally, given jury refer instructions 6. The in this case was immodest, immoral, conjunction with these instruc- defined terms definitions in indecent as follows: tions: instructions, words moral: inconsistent As used in these "Immoral” means not ordinary phrases good contrary in their purity should taken to con- with morals: usual sense. charge couple began residing is not defense to the Jersey Consent New “immodest, Eventually, with Pierson’s immoral indecent liberties” relatives. Pierson charged taking where the victim less than sixteen liberties trial, During CG age; under the CG. testified that through relationship the entire cannot to she was domi- years sixteen consent sexual by and control nated under the of Pierson. intercourse. contrast, In testimony Pierson introduced that [¶ Giles contends the note the 34] indicating of several witnesses CG invited jury during the district submitted to court appeared Pierson’s attentions and to be a jury deliberations reveals that the was con- equal participant during mature and all times Moreover, cerned with consent issue. Pierson, they together. were at 1121-23. argues Giles the facts in this case dem- [¶ Pierson was convicted of one 36] count manipulate onstrate that he the situa- did of indecent liberties a minor with after a him; leading charge against tion to the he three-day appeal, trial. On Pierson asserted MB; actually did not MB at coerce seemed given jury that the to pre- instructions lead; times to take the and her consent and consideration vented of the facts essential to surrounding all of the must be circumstances argued his Pierson defense. that because a determining considered in took whether Giles year may legally sixteen old consent to sexu- “immodest, or immoral indecent” liberties (third al degree intercourse under Giles, therefore, with MB. concludes assault), sexual CG’s consent had a direct providing jury trial court erred bearing “indecency” on the relative of then- guidance signif- with as to how to resolve the Pierson, activity. at 1123-24. icance of MB’s consent to and the intercourse surrounding claim, circumstances existed. In addressing this the Pier- jury legislature’s Giles claims that this error son noted express allowed that the confused, appropri- protection to become or at of age eigh- least not minors under the of deliberations, ately guided in led to teen from indecent appar- its. liberties makes it legislature ent Giles’conviction. that the did not intend to cast years a minor of sixteen or age seventeen of argu- [¶ Giles bases the bulk of his 35] mercy society large. Thus, to we holding in In ment on oúr Pierson. age legal determined that the of consent of CG, involved, Pierson minor age by § sixteen designated met fifteen when CG was and Pierson was did question not resolve the thirty-six and married. While was still CG victim, fact, gave informed consent to the fifteen, “falling told her that Pierson he' was charged, ques- conduct nor it resolve did her, physical in love” and a relationship with conduct, consent, tion whether the even with gradually grew. couple began The then Pierson, was indecent or immoral. at 1125. possibility marriage. discuss the At the This court in sixteen, agreeing with being Pier- after contact forbidden position son’s asserted Pierson, also stated: had sexual CG intercourse Pierson. Additional sexual interludes fol- defining liberties,” the term “indecent Immediately upon lowed. parents rely CG’s be- on the society.” “common sense of Sorenson, coming relationship sexual of the be- aware 604 P.2d at As 1034. the mem- Pierson, tween family her society CG and her bers of who -willexercise that com- sense, moved to Montana. Pierson then mon CG must be allowed to together Oregon absconded totality married consider circumstances later, when relating CG seventeen. culpability was Sometime to the of the defen- general 1y: tending being science or or law: in something moral conflict with toward or in fact traditionally principles. held moral generally morally viewed as indelicate or im- lacking "Immodest” means or deficient in proper being tending or offensive: to be modesty: modesty: deficient in sexual not to obscene. conform mores of a Wyoming Jury Criminal Pattern Instructions place. time or 1996) (Rv’d suggests just be instructed in “Indecent” means not decent: not conform- this manner. ing accepted generally morali- standards of improperly on the includes whether the instructed of- conduct. This dant’s liberties, in those cases fense of indecent and we cannot was consensual legally enough ground. minor old find ineffective counsel on this where give an informed consent Chapman However, the “consent” must § 6-2-304. addition, Schmidt the case light of the facts be considered upheld the trial court’s instruc fact, ability, in victim’s relevant “immodest, tion to the terms and the defen- give an informed consent immoral, as: liberties” “Actions actions secure consent dant’s which are such as the common sense of soci include, Such circumstances but minor. ety regard improper as indecent and would to, not limited the victim’s relative are a person ordinary intelligence can maturity; experience; whether the minor weigh contemplated against prohibi conduct parental in- emancipated; extent of the dealing tion” with an coupled instruction with decisions; in volvement the minor’s stated, part: jury intent may “The manipulation of the defendant’s evidence surrounding consider the circumstances the of the minor. or coercion act, itself, doing of the act the manner in the Pierson, at 1125-26. which it was done and the means used.” Pierson of our Since the issuance ¶¶ Schmidt, fact, court at 22-25. In this opinion, recognize this court has continued ¶¶ State, 24-25, again Burton v. at recog juries employ must the proposition that the nized that: society” defining the sense “common jury on trial court instructed the the Chapman In term “indecent liberties.” taking the elements of crime of indecent ¶¶ 27-28, State, Chapman contended that at a child in accordance liberties with with jury properly instructed on the was the 14-3-105(a). suggests Burton that the of the of indecent elements offense liberties phrase have “im court should defined the Pier- relying Specifically, with a minor. on modest, immoral or liberties” indecent son, Chapman argued that the offense however, has, This jury. the court re more than “mere” required liberties indecent peatedly precisely define refused the eighteen with under sexual contact someone “immodest, phrase or indecent immoral lib jury have been and that the should instruct State, e.g., Chapman v. erties.” See 2001 In this essential element. ed on claimed ¶28, ¶ 1164, P.3d 28 WY 18 Chapman’s argument, rebuffing this court Sorenson v. P.2d 1034-35 Chapman that claim indicated Instead, (Wyo.1979). jury is allowed to the jury should been instructed about looking apply common sense its surrounding circumstances “consent” pertaining totality the circumstances Chapman’s founded thir not well because conduct. culpability the accused’s minor teen-year-old victim was a who Chapman, at 28. legally enough give old informed con properly the trial court In this 6-2-304, sent, fifty- under to the almost jury the elements of instructed Nevertheless, year-old Chapman. court this minor, liberties with taking indecent jury recognized that needed be able phrase providing a definition of without totality consider the of circumstances “immodest, immoral or indecent liberties.” reaching its its common decision use sense however, is, It clear that the indecent lib charges. on the indecent liberties We stat sexu punishes inappropriate erties statute ed: Chapman, al with children. Pierson, Second, consistent with we find ¶ 28. nothing in the court’s instructions district Pierson, court went further considering from prevented way express holding our in no vitiated totality from to of the circumstances or previous that the consent reaching its our determinations using its common sense at least charges. liberties of minor of sixteen decision on indecent charge complete has the was not a defense Chapman not demonstrated that taking Specifically, Jury liberties. are instructions written particular stated: facts and theories of each case in mind. Miller v. Jury No. approving Instruction (Wyo.1995) (quoting Gore v. expressly district relied on hold- (Wyo.1981)). P.2d 1388-89 Instruc McArtor, ing in P.2d where after designed tions to the are to inform court, a trial to the McArtor was convicted applicable about the law so that taking of one count of indecent liberties apply that law to its own appeal, with a minor. Id. at 289. On findings respect to the material facts. sixteen-year-old McArtor claimed that the Compton (Wyo. victim’s admission sexual intercourse 1997); Brown v. a complete was consensual was defense to (Wyo.1991). A jury instruction must leave charge. argued He that because the no doubt as to what circumstances victim could consent under 6- the crime could found to have been assault), (statutory rape/sexual committed Comp case. provision “specific” assault was a ton, 940; Miller, 931 P.2d at 904 P.2d at impliedly repealed statute which or con- States, (quoting Graham United application “general” trolled the in- (D.C.Cir.1950), denied, F.2d 90 cert. McArtor, decent liberties statute. 341 U.S. 71 S.Ct. 95 L.Ed. 1353 P.2d at 294. (1951)). We must therefore determine Holding that the indecent stat- liberties jury the whether a instructions left doubt by statutory ute was not the controlled as to the circumstances under Pier- which rape provision, specifically noted son could be found have committed the only engaged that McArtor in sexual transcript crime. Review of the trial and intercourse, did but so circum- jury the instructions as whole reveals specifically stances addressed within the jury properly that the was not instructed indecent statute in effect at liberties in this case. time: State, In accord see Schmidt (citing at 23 that, Beyond immediately it is not dis- State, Metzger (Wyo.2000)). P.3d cernible as to which of the two statutes specific. [¶43] Similar our conclusion in Pier- is more Sexual intrusion or son, jury given we hold that the penetration § instructions is an element of 6-2-304 (§ 6-63.5) by the district court necessary not a left doubt as the but is element 14-28). (§ § circumstances under which Although of Giles could be the (at found to have committed the of statute the crime inde- latter time of inci- dent) cent liberties with a child. parents, guardians is not While we do not limited to custodians, find that the district providing court erred in they and the fact that are particular with the specifically definitions of mentioned would indicate an “immoral,” “immodest,” or place special intention to onus on “indecent” ex- those pressed, not appropriately was in- supervisory authority over mi- totality structed to consider circum- appellant nors —as had over victim stances in determining in this case. or not Giles’ categories actions fell within these as de- McArtor, Thus, 699 P.2d at 293. because fined. Given our guidance well-established the indecent encompassed liberties statute that a must use its common sense scope Wyo. conduct outside the Stat. determination, making imperative such it is 6-2-304, “specific” was one no more able to consider all the facts other, than Wyo. we concluded each Requesting ease. that the Stat. by was not controlled jury use common in determining its sense if a 6-2-304. defendant’s actions amount indecent liber- State, (footnote omitted). Pierson v. at 1126 ties with a child a vacuum without review 1126-27, totality Pierson of circumstances makes little also noted: sense. evidence, way Accordingly, by of en the actual issues raised parties parties involved this will assist this court better

lightenment proceedings prove members of the bar faced appellate other should neces case involving charge of immod sary. an action Duckett v. est, immoral, liberties with (Wyo.1998); Brett P.2d years age younger than sixteen victim Baier P.2d 14-3-105, following jury §of violation (Wyo.1995); Hatheway v. given: instruction shall be (Wyo.1981). Wyoming law assumes that a age Sufficiency of sixteen does

victim under the of the Evidence ability to a to consent argues that the evi [¶ 47] Giles However, you you are instructed that act. dence is insufficient to sustain his conviction. totality the circum- may examine the However, a complete after review of the rec conduct, surrounding alleged stances ord, sup we find evidence sufficient to of the victim include acts port jury’s Not verdict. did Giles to make the and the acts of the defendant MB, having admit to sexual intercourse with if the conduct immod- determination drugs group illegal also used before Giles immoral, est, or indecent. and MB retired to the bedroom. these Given explicitly must be made Distinction facts, the other noted combined with facts involving alleged victim a situation an from above, jury’s verdict we conclude years age opposed younger than sixteen supported evidence. embodying alleged an that circumstance or older. victim sixteen CONCLUSION occasion, previously we held the latter reasons, foregoing For the the con- [¶ 48] Pierson, to such support continue deci- and immodest, immoral, viction for or of Giles sion, totality jury that a must look at the pursuant liberties a child to indecent 1) to determine both whether circumstances reversed, § Wyo. is Ann. 14-3-105 Stat. fact, victim, gave informed consent this matter is remanded to district 2) charged, the conduct proceedings for with this further consistent conduct, consent, immodest, even opinion. immoral, or Pierson v. indecent. 1125. Justice, VOIGT, concurring. specially Lastly, in either instance [¶ 46] appellant’s agree I that this convic- above, recognize we the terms listed separately I tion must be reversed. write “immodest, immoral, or as utilized indecent” Wyo. Ann. I do not Stat. because believe disjunc § are in the stated within (LexisNexis 2003) § is constitution- tive, representing among a choice alterna meaning- vague give al. The statute too Therefore, jury a clarify must tives. proscribes, it it is ful of what conduct notice in at least one of find that defendant acted arbitrary prosecution, susceptible too concluding a the enumerated manners before juries to decide up leaves it individual § violating guilty defendant is 14-3-105. not, is, Lori and what a crime. See what such, special jury form As verdict should Casenote, Law—Wyo- Brand, L. Criminal jury deliberating presented to a such issues ming’s Indecent Liberties Statute—Victim which, clearly any, if indicate these Jury a “Relevant Fact Consent is Now for acts alternative detailed occurred under Deliberation;” Bandage Put a Did Pierson presented. spe The use of such a evidence Bullet Wyoming’s Code Criminal form will leave no doubt as cial verdict Pierson Wound? to what circumstances the found (Wyo.1998), & L.Rev. Land Water XXXIV partic in each crime to have been committed Additionally, case. use of such a ular pertinent provides, The statute prop will ensure that the form better law, erly given part: the applicable instructed as to if

(a)Except Second-degree by consti- 7. administering circumstanee[s] first, tuting Wyo. § sexual assault second or substance. Stat. Ann. 6-2- 303(a)(iii). by degree third as defined W.S. 6-2-302 6-2-304, any person through knowingly Second-degree 8. if erroneously immodest, taking immoral or indecent lib- Wyo. thought spouse. § Stat. Ann. 6-2- knowingly or any causing erties with child 303(a)(iv). encouraging any or child to cause or en- Second-degree 9. if the victim is less courage another child commit with him than years twelve actor is four and the guilty act is immoral or indecent of a 6-2-303(a)(v). § Wyo. older. Ann. Stat. felony. by Except provided subsection Second-degree position 10. if (b)of section, person this un- convicted authority. Wyo. § Stat. Ann. 6-2- der this section shall be fined not less than 303(a)(vi). ($100.00) one hundred dollars nor more Second-degree during 11. if medical di- ($1,000.00) than one dollars thousand agnosis Wyo. or treatment. Stat. Ann. imprisoned penitentiary more 6-2-303(a)(vii). § (10) years, than ten both. if Third-degree the victim is less 14-3-105(a). Wyo. Stat. Ann. Subsection than years sixteen and the actor is four (c)defines “child” as “a under the 6-2-304(a)(i) older. Arm. eighteen years.” Wyo. Stat. Ann. (LexisNexis 2003). 14-3-105(c). addition, in- [¶ of this 52] Because all conduct is statu- case, many juries structed before torily coverage by omitted from the indecent instructed, have been that “immoral” means statute, (and jury) liberties are left to moral,” “not “immodest” means “not mod- speculate omitted, and, what conduct is not est,” and “indecent” “not decent.” means by implication, is included. In the context of first-, The statute’s reference to present case, the last-numbered circum- second- third-degree assault stance is most It relevant. can be third- prohibited by indicates what is not degree eighteen-year- sexual assault for an intrusion, instance, its terms. Sexual old who is four older than the victim to not covered liberties statute7 have consensual sexual intercourse with a circumstances, following because it is fourteen-year-old, it but cannot be third-de- by forbidden one of the other sexual assault gree sexual an eighteen-year-old assault for statutes: who is less than four older than the by 1. First-degree Wyo. if force. Stat. victim to have consensual sexual intercourse (LexisNexis 6-2-302(a)(i) 2003). § Ann. with a fourteen-year-old. question is may the actor in the latter situation by 2. First-degree if threat of death. guilty be found of indecent liberties. The 6-2-302(a)(ii). Wyo. § Stat. Ann. “yes,” answer if is a decides his conduct First-degree physical- 3. if the victim is modest, moral, was not or not or not decent. ly helpless. Wyo. § Stat. Ann. 6-2- 302(a)(iii). Similarly, [¶ 53] “sexual contact” is de- “touching, fined as intention-of sexu- First-degree 4. if the victim mentally is arousal, abuse, al gratification or of the vic- helpless. Wyo. § Stat. Ann. 6-2- by actor, tim’s parts intimate or of the 302(a)(iv). victim, by actor’s parts intimate or of the by 5. if Second-degree future threats. clothing covering the immediate area of the 2—303(a)(i)(LexisNex- Wyo. § Stat. Ann. 6— parts[.]” victim’s or Wyo. actor’s intimate 2003). is 6-2-301(a)(vi) (LexisNexis § Stat. Ann. 2003). by 6. Second-degree if preventing re- Sexual is not contact forbidden 6-2-303(a)(ii). Wyo. § sistance. Ann. Stat. indecent if liberties statutes it constitutes sake, simplicity's 7. For actually separate I will refer to this statuto- three crimes: "immodest liber- ry liberties,” ties," liberties,” crime although as “indecent "immoral and "indecent liber- majority opinion it makes clear that there are ties.” assault, first-, third-degree decides it is. Consensual sexual inter- sexual second- or fifteen-year-old boy course and an following between circumstances: include first-, eighteen-year-old girl is not second- or bodily inju- if Second-degree serious 1. third-degree sexual assault. Is it indecent second-degree cir- ry any first- or if liberties? It decides it is. 2—303(b). § Wyo. Ann. cumstance. Stat. 6— Consensual sexual intercourse between six- is less Third-degree if the victim 2. teen-year-old girl thirty-year-old man adult, is an fourteen and the actor than first-, third-degree or sexual second- and no serious with no sexual intrusion assault. Is it indecent liberties? It is if the Wyo. Ann. 6-2- bodily injury. Stat. jury decides it is. Consensual sexual contact 304(a)(ii). fourteen-year-old boy a four- between a or Third-degree if under first- first-, teen-year-old girl is not second- or circumstance, with no sexu- second-degree third-degree sexual assault. Is it indecent bodily injury. no serious al intrusion and if It decides it is. liberties? 2—304(a)(iii). Ann. Stat. 6— Fundamentally, there are three first-, battery if not second- 4. Sexual major flaws with the crime of indecent liber- and not in- third-degree sexual assault or Wyoming ties as it exists in the statutes. §Ann. Wyo. Stat. 6-2- decent liberties.8 First, acceptable the line between and unac- 313(a) (LexisNexis 2003). until ceptable behavior is indiscernible conduct, again, none of this Once Second, jury returns with a verdict. it is limitation, by statutory constitutes indecent misleading age of to have the consent be liberties, when sex- leaving some doubt as to third-degree sexual assault sixteen For may indecent liberties. ual contact be statute, eighteen in the indecent liberties but third-degree assault for example, it is page 2 of statute. On 134 of Volume older) (someone eighteen or to have an adult Statutes, twenty- Wyoming legal it is for a a victim who is than sexual contact with less year-old sexual intercourse with man fourteen, charged cannot so that conduct be seventeen-year-old girl. Wyo. Stat. Ann. person caring A as indecent liberties. page § 6-2-304. 404 of Volume 3 of the On against these future conduct measure his Statutes, Wyoming the same conduct presume that it is not. could then statutes jury. Wyo. Ann. illegal found to have sexual third-degree sexual assault can it be that consensual 14-3-105. How But is with a victim who is fourteen. contact sixteen-year-old with a sexual intercourse Similarly, it is not liberties? community seventeen-year-old stan- violates for a seventeen- third-degree sexual assault modesty, morality, decency when dards a victim year-old to have sexual contact with public legislature, the official declarant fourteen. But is it indecent who is less than perfectly policy, has declared such ques- to both of these The answer liberties? legal? jury “yes,” if a decides the conduct tions is major flaw in the inde- The third [¶ 57] moral, modest, or not decent. not not was by highlighted cent liberties statute statutory with this problem The case when it sent a note to the instant legislature who has scheme is that it is the asking appellant’s conduct judge if the stat- in the sexual assault defined the crimes immoral and immodest and had to be found utes, juries to up it left to individual majority rightfully while is states that The indecent. immodest, disjunctive immoral or define the crimes of in the options these are stated statute, charged, proven, The answer could differ they indecent liberties. must be so town,’ future, county, spe- county separately. from town to In the from and found jury. examples: specify from Consen- form will allow Some cial verdict committed, it not an eleven- but will sual sexual intercourse between what crime simply too much fourteen-year-old boy key problem. is It is year-old girl and a solve the predict able to first-, third-degree as- ask he be second- or not particular of a It if the whether the twelve members it indecent sault. Is liberties? statutes is left to be 6- ered the other statute, Stat. Ann. The sexual by battery charged as sexual what is not cov- battery? another opens question: 1031, in the future will determine v. (Wyo. sometime Sorenson 604 P.2d 1979). conduct was not sufficient- particular' that his what other instance have we said sufficiently ly appropriate or not moral or not it modest that the elements of a crime community meet sufficiently decent to stan- specified particularity? not be with How dards. “indelicacy” subject does the trump of the process? due else can Where the common “immodest,” “immoral,” Either decide, community fact, sense of the after the thing, they all mean the same “indecent” basis, case-by-case on a what conduct is crim majority things. If the mean different inal? To continue: correct, is, and I believe it that the words are “ * * * process require Due does not disjunctive used in the and must be consid- statute, this purpose, its beneficent separately by jury, they ered then must spell out in exact words what constitutes charged separately proven sepa- also be punishable.” the conduct made Millhollan rately. Perhaps directly this most reveals v. 221 Ga. 143 S.E.2d vagueness in the statute. What facts will (1965); State, Alaska, Anderson prosecutor have to consider to decide (1977). P.2d 351 op- certain conduct is immoral “ n * * posed Although language to immodest or indecent? What stan- the stat prosecutor apply deciding prohibited dard will the ute is broad and the behavior is charge? very general, necessary how to this seems in the ” * * * (Em subject nature of its matter. Admittedly, facts of phasis supplied.) People Beaugez, “victim,” especially of the Cal.App.2d Cal.Rptr. ap do not lend themselves well to an “as plied” challenge constitutionality of the Further, statute. the doctrine of stare deci- Sorenson, 604 P.2d at 1035. Laudable respect. underlying sis But demands sentiments, purpose” but the “beneficent of a principle system justice justice. of our statute does not process. excuse a lack of due long, struggled For too this Court has to find “necessary” Neither does it make lan- broad the indecent liberties statute constitutional guage general prohibited and a statement of when, truth, protects it because children behavior. I would find the statute unconsti- simply has no measurable standards. It ais tutional. penal well-settled rule of law statutes strictly are to be construed and are not to be implication

extended inference or to eases clearly language. covered their Olsen 46, 168, 2003 WY 67 P.3d 2004 WY 102 (Wyo.2003); Keats v. 2003 WY INGERSOLL, Chandler Alan ¶ 26, Horn v. Appellant (Defendant), (Wyo.1976). We have principle construing violated this the inde cent liberties statute: Wyoming, The STATE of “True, regarded what shall be as ‘immod (Plaintiff). Appellee est, immoral and indecent liberties’ is not Ingersoll, Appellant Chandler Alan specified particularity, but that is not (Defendant), necessary. indelicacy subject forbids it. The common sense of the com munity, decency, as well as the sense of Wyoming, Appellee The State of propriety, morality people gen (Plaintiff). erally entertain, apply is sufficient to 03-124, Nos. 03-125. statute to particular point each out unmistakably what Supreme Wyoming. Court of rendered criminal it. State v. Mil ” Sept. * * * lard, 18 Ct. 46 Am.Dec. 170. People, Dekelt v. 44 Colo. 99 P.

Case Details

Case Name: Giles v. State

Court Name: Wyoming Supreme Court

Date Published: Sep 2, 2004

Citation: 96 P.3d 1027

Docket Number: 02-63

Court Abbreviation: Wyo.