STATE of South Dakota, Plaintiff and Appellee, v. Douglas J. MYERS, Defendant and Appellant.
No. 27024.
Supreme Court of South Dakota.
Decided Dec. 17, 2014.
2014 S.D. 88 | 857 N.W.2d 597
Considered on Briefs Nov. 17, 2014.
SEVERSON, Justice.
[¶1.] A South Dakota Highway Patrol trooper stopped Douglas James Myers after radar registered his car traveling at 112 miles per hour. He was traveling with thrеe small children in the vehicle and was under the influence of alcohol. No actual physical injuries to the children occurred as a result of the incident. After a trial to the court on stipulated facts, the Fourth Judiсial Circuit Court found him guilty of abuse of a minor in violation of
Background
[¶2.] On June 8, 2013, the South Dakota Highway Patrol received a report of a small red car travelling еastbound on Interstate 90, weaving all over the road and going into the ditch or median with all four tires. A trooper used radar and registered the car traveling 112 miles per hour. The trooper attempted to catch thе vehicle for approximately four miles, and was finally able to do so when the vehicle slowed because of traffic. The trooper activated his lights, and the driver of the car pulled over and identified himself as Douglas James Myers. There were two small children in the back seat and one in the front seat. Upon approaching the vehicle, the trooper smelled the strong odor of alcohol, noticed Myers‘s eyes were bloodshot, and saw Myers stagger as he walked. A urinalysis showed positive for marijuana, and a blood sample revealed that his blood contained .131% alcohol by weight. Myers subsequently stipulated to these facts for his court trial.
[¶3.] On July 12, 2013, a Meade County Grand Jury indicted Myers with (1) three counts of abuse of or cruelty to a minor, in violation of
[¶4.] On November 6, 2013, Myers moved to dismiss the three counts related to his alleged violation of
[¶5.] The court conducted a hearing on January 13, 2014, at which time it allowed Myers to reopen the issue as to whether
Analysis
[¶6.] “Challenges to the constitutionality of a statute are reviewed de novo.” State v. Asmussen, 2003 S.D. 102, ¶ 2, 668 N.W.2d 725, 729. A strong presumption exists that statutes are constitutional. Id. Howеver, a criminal statute may be vague and therefore void if it fails to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). Therefore, we consider whether the statute affords notice to citizens as to what conduct is prohibited and whether it “establish[es] minimal guidelines to govern law еnforcement” so as not to allow “policemen, prosecutors, and juries to pursue their personal predilections.” Id. at 358, 103 S.Ct. at 1858 (quoting Smith v. Goguen, 415 U.S. 566, 574-75, 94 S.Ct. 1242, 1247-1248, 39 L.Ed.2d 605 (1974)).
[¶7.] Myers asserts that
Any person who abuses, exposes, tortures, torments, or cruelly punishes a minor in a mannеr which does not constitute aggravated assault,* is guilty of a Class 4 felony. If the victim is less than seven years of age, the person is guilty of a Class 3 felony.
Since the parties stipulated that Myers did not commit any acts of abuse, torture, torments, or cruel punishment as listed within
* Aggravated assault is defined in
[¶8.] Myers asserts that because the statute does not say what expose means, the public cannot know what one must do in order to violate it. However, “a criminal law need not define every word used to prohibit a certain conduct.” State v. Dale, 439 N.W.2d 98, 107 (S.D. 1989). “The words the legislature used are presumed to convey their ordinary, popular meaning, unless the context or the legislature‘s apparent intention justifies departure from the ordinary meaning.” State v. Big Head, 363 N.W.2d 556, 559 (S.D. 1985). “Expose” is, inter alia, defined in The American Heritage College Dictionary 483 (3d ed. 1993), as “[t]o subject to needless risk.” The statute need not enumerate a list of every potential thing that a child could be exposed to in order to constitute felony child abuse. The definition of expose includes those things or scenarios; it is those that “subject [a child] to needlеss risk.” Id. “Risk” is, inter alia, “the possibility of suffering harm or loss; danger.” Id. at 1177. Therefore, we conclude that the statute provides sufficient notice to the ordinary citizen as to what conduct would constitute an offense under
[¶9.] Myers cites to our decision in State v. Biays as support for his argument. See 402 N.W.2d 697 (S.D. 1987). In Biays, the defendant was charged with both aggravated assault and abuse charges and argued on appeаl that it was a violation of double jeopardy to charge both when those charges stemmed from the same facts. Id. at 699. While Myers is correct in asserting that we emphasized the injuries were separate and distinct, therеfore suggesting that not all of them were part of the same incident, Biays does not support Myers‘s argument. See id. at 700. Myers argues that, unlike in Biays, there are no injuries here, so exposing a child in a manner that does not constitute aggravated assault has no real meaning and is at odds with our Biays decision. We disagree. The question in Biays wаs whether the constitutional right to be free from double jeopardy was violated, not whether the statute was vague. Id. at 698. The lack of a physical injury or separate injuries is not the question here and is irrelevant to whethеr he exposed the children.
[¶10.] Myers next asserts that he cannot be convicted under the statute because prosecutors and police have unfettered discretion to decide when to charge someone under the statute. Myers offers a hypothetical scenario of a parent taking a child to a violent movie as being a potential violation of the statute. Myers cites City of Chicago v. Morales in support of his proposition that the police will be allowed to punish innocent citizens under the vagueness of the word expose. 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). In City of Chicago the ordinance at issue criminalized loitering, which was defined in the statute as “remain[ing] in any one place with nо apparent purpose.” Id. at 47, 119 S.Ct. at 1854. The Court found the ordinance vague not because of “uncertainty about the normal meaning of ‘loitering,’ but rather about what loitering is covered by the ordinance and what is not.” Id. at 57, 119 S.Ct. at 1859. Therеfore, the Court concluded that the ordinance “fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted.” Id. at 60, 119 S.Ct. at 1861. “The Constitution does not permit a legislature to ‘set a net large enough tо catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.‘” Id. (citing United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1875)). In this case there is no uncertain
[¶11.] Furthermore, as we recently explained in State v. Outka, a “vagueness challenge[] that do[es] not involve the First Amendment must be examined in light of the specific facts of the case at hand аnd not with regard to the statute‘s facial validity.” 2014 S.D. 11, ¶ 28, 844 N.W.2d 598, 607 (citing State v. Andrews, 2007 S.D. 29, ¶ 16, 730 N.W.2d 416, 419). On the stipulated facts of this case, we find it unpersuasive that applying the statute to Myers‘s actions—driving at a speed in excess of 100 miles per hour while intoxicated, which put the children‘s lives in jeopardy, even where no actual physical harm results—is an unconstitutional application of the statute. The situation that Myers put these children in is clearly one in which the children were subjected to needless risk.
Conclusion
[¶12.] Even though
[¶13.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and WILBUR, Justices, concur.