#27024-a-GAS

2014 S.D. 88

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

DOUGLAS J. MYERS,                         Defendant and Appellant.

                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                    MEADE COUNTY, SOUTH DAKOTA

                                 ****

                 THE HONORABLE JEROME A. ECKRICH, III
                               Judge

                                 ****


MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.

ROBERT A. HAIVALA
Sturgis, South Dakota                     Attorney for defendant
                                          and appellant.


                                 ****
                                          CONSIDERED ON BRIEFS
                                          ON NOVEMBER 17, 2014

                                          OPINION FILED 12/17/14
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SEVERSON, Justice

[¶1.]        A South Dakota Highway Patrol trooper stopped Douglas James Myers

after radar registered his car traveling at 112 miles per hour. He was traveling

with three small children in the vehicle and was under the influence of alcohol. No

actual physical injuries to the children occurred as a result of the incident. After a

trial to the court on stipulated facts, the Fourth Judicial Circuit Court found him

guilty of abuse of a minor in violation of SDCL 26-10-1 because he had “exposed” the

children as stated by that statute. The circuit court held that the statute was not

unconstitutionally vague for failing to define what “expose” means. Myers now

appeals the issue of whether the statute is unconstitutionally vague and therefore

void. We affirm.

                                    Background

[¶2.]        On June 8, 2013, the South Dakota Highway Patrol received a report

of a small red car travelling eastbound on Interstate 90, weaving all over the road

and going into the ditch or median with all four tires. A trooper used radar and

registered the car traveling 112 miles per hour. The trooper attempted to catch the

vehicle for approximately four miles, and was finally able to do so when the vehicle

slowed because of traffic. The trooper activated his lights, and the driver of the car

pulled over and identified himself as Douglas James Myers. There were two small

children in the back seat and one in the front seat. Upon approaching the vehicle,

the trooper smelled the strong odor of alcohol, noticed Myers’s eyes were bloodshot,

and saw Myers stagger as he walked. A urinalysis showed positive for marijuana,




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and a blood sample revealed that his blood contained .131% alcohol by weight.

Myers subsequently stipulated to these facts for his court trial.

[¶3.]        On July 12, 2013, a Meade County Grand Jury indicted Myers with (1)

three counts of abuse of or cruelty to a minor, in violation of SDCL 26-10-1; (2)

driving under the influence of alcohol, marijuana, or controlled substance in

violation of SDCL 32-23-1(2) or in the alternative driving while having .08 percent

or more alcohol in blood; (3) possession of marijuana, less than two ounces, in

violation of SDCL 22-42-6; (4) reckless driving, in violation of SDCL 32-24-1; and (5)

driving while license revoked, in violation of SDCL 32-12-65(1). Myers entered a

not guilty plea to the crimes.

[¶4.]        On November 6, 2013, Myers moved to dismiss the three counts

related to his alleged violation of SDCL 26-10-1, abuse of a minor, on the ground

that the statute is unconstitutionally vague and, therefore, void. The judge denied

the request after a pretrial hearing on November 14, 2013. The court conducted a

change of plea hearing on November 20, 2013, at which time, as part of a plea

agreement, Myers pleaded guilty to driving while having .08 percent or more

alcohol in his blood, in violation of SDCL 32-23-1(1), constituting a third offense

DUI. Pursuant to the plea agreement, the parties agreed to try one count of the

abuse of a minor upon stipulated facts to the circuit court, and all other charges

were dismissed. The State agreed in the stipulated facts “that no abuse, torture,

torments or cruel punishments was committed by [Myers].” Myers waived his right

to a jury trial on the child abuse charge.




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[¶5.]        The court conducted a hearing on January 13, 2014, at which time it

allowed Myers to reopen the issue as to whether SDCL 26-10-1 is unconstitutionally

vague. The court rejected Myers’s argument and on February 19, 2014, held a

sentencing hearing, sentencing Myers to five years in prison for the abuse

conviction, to run concurrent with a sentence of two years for the third offense DUI

conviction. Myers appeals raising the issue of whether SDCL 26-10-1 is

unconstitutional because it is vague.

                                        Analysis

[¶6.]        “Challenges to the constitutionality of a statute are reviewed de novo.”

State v. Asmussen, 2003 S.D. 102, ¶ 2, 668 N.W.2d 725, 729. A strong presumption

exists that statutes are constitutional. Id. However, a criminal statute may be

vague and therefore void if it fails to “define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited and in

a manner that does not encourage arbitrary and discriminatory enforcement.”

Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903

(1983). Therefore, we consider whether the statute affords notice to citizens as to

what conduct is prohibited and whether it “‘establish[es] minimal guidelines to

govern law enforcement’” so as not to allow “‘policemen, prosecutors, and juries to

pursue their personal predilections.’” Id. at 358, 103 S. Ct. at 1858 (quoting Smith

v. Goguen, 415 U.S. 566, 574-75, 94 S. Ct. 1242, 1247-1248, 39 L. Ed. 2d 605 (1974)).

[¶7.]        Myers asserts that SDCL 26-10-1 is vague and therefore

unconstitutional. SDCL 26-10-1 provides in relevant part that:

             Any person who abuses, exposes, tortures, torments, or cruelly
             punishes a minor in a manner which does not constitute

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             aggravated assault,* is guilty of a Class 4 felony. If the victim is
             less than seven years of age, the person is guilty of a Class 3
             felony.

Since the parties stipulated that Myers did not commit any acts of abuse, torture,

torments, or cruel punishment as listed within SDCL 26-10-1, the only word that

we must construe is “expose.” Id. Myers asserts that because the word “expose” is

not defined in the statute, ordinary citizens cannot know what conduct constitutes

“expose,” but not aggravated assault, in violation of the statute. Myers argues the

statute would need to elaborate what a child must be exposed to for the statute to

be constitutional. This Court has previously upheld the constitutionality of this

statute, but has not specifically addressed the meaning of “expose.” See State v.

Hoffman, 430 N.W.2d 910, 911-12 (S.D. 1988); State v. Eagle Hawk, 411 N.W.2d

120, 124 (S.D. 1987). We decided that this statute “is not easily susceptible of


*     Aggravated assault is defined in SDCL 22-18-1.1.
           Any person who:
              (1) Attempts to cause serious bodily injury to another, or
                  causes such injury, under circumstances manifesting
                  extreme indifference to the value of human life;
              (2) Attempts to cause, or knowingly causes, bodily injury to
                  another with a dangerous weapon;
              (3) Deleted by SL 2005, ch 120, § 2;
              (4) Assaults another with intent to commit bodily injury
                  which results in serious bodily injury;
              (5) Attempts by physical menace with a deadly weapon to
                  put another in fear of imminent serious bodily harm; or
              (6) Deleted by SL 2005, ch 120, § 2;
              (7) Deleted by SL 2012, ch 123, § 4;
              (8) Attempts to induce a fear of death or imminent serious
                  bodily harm by impeding the normal breathing or
                  circulation of the blood of another person by applying
                  pressure on the throat or neck, or by blocking the nose
                  and mouth;
              is guilty of aggravated assault. Aggravated assault is a Class
              3 felony.

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misinterpretation. Its attempt to catalog the types of conduct which would

constitute abuse of or cruelty to a minor may be lacking in imagination or

elaboration, but the statute is not unreasonably vague.” Hoffman, 430 N.W.2d at

912.

[¶8.]        Myers asserts that because the statute does not say what expose

means, the public cannot know what one must do in order to violate it. However, “a

criminal law need not define every word used to prohibit a certain conduct.” State

v. Dale, 439 N.W.2d 98, 107 (S.D. 1989). “The words the legislature used are

presumed to convey their ordinary, popular meaning, unless the context or the

legislature’s apparent intention justifies departure from the ordinary meaning.”

State v. Big Head, 363 N.W.2d 556, 559 (S.D. 1985). “Expose” is, inter alia, defined

in The American Heritage College Dictionary 483 (3d ed. 1993), as “[t]o subject to

needless risk.” The statute need not enumerate a list of every potential thing that a

child could be exposed to in order to constitute felony child abuse. The definition of

expose includes those things or scenarios; it is those that “subject [a child] to

needless risk.” Id. “Risk” is, inter alia, “the possibility of suffering harm or loss;

danger.” Id. at 1177. Therefore, we conclude that the statute provides sufficient

notice to the ordinary citizen as to what conduct would constitute an offense under

SDCL 26-10-1, because the very definition of expose explains what a child must be

“exposed to” as Myers asserts the statute would need to do in order to be

constitutional.

[¶9.]        Myers cites to our decision in State v. Biays as support for his

argument. See 402 N.W.2d 697 (S.D. 1987). In Biays, the defendant was charged


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with both aggravated assault and abuse charges and argued on appeal that it was a

violation of double jeopardy to charge both when those charges stemmed from the

same facts. Id. at 699. While Myers is correct in asserting that we emphasized the

injuries were separate and distinct, therefore suggesting that not all of them were

part of the same incident, Biays does not support Myers’s argument. See id. at 700.

Myers argues that, unlike in Biays, there are no injuries here, so exposing a child in

a manner that does not constitute aggravated assault has no real meaning and is at

odds with our Biays decision. We disagree. The question in Biays was whether the

constitutional right to be free from double jeopardy was violated, not whether the

statute was vague. Id. at 698. The lack of a physical injury or separate injuries is

not the question here and is irrelevant to whether he exposed the children.

[¶10.]       Myers next asserts that he cannot be convicted under the statute

because prosecutors and police have unfettered discretion to decide when to charge

someone under the statute. Myers offers a hypothetical scenario of a parent taking

a child to a violent movie as being a potential violation of the statute. Myers cites

City of Chicago v. Morales in support of his proposition that the police will be

allowed to punish innocent citizens under the vagueness of the word expose. 527

U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 267 (1999). In City of Chicago the ordinance

at issue criminalized loitering, which was defined in the statute as “remain[ing] in

any one place with no apparent purpose.” Id. at 47, 119 S. Ct. at 1854. The Court

found the ordinance vague not because of “uncertainty about the normal meaning of

‘loitering,’ but rather about what loitering is covered by the ordinance and what is

not.” Id. at 57, 119 S. Ct. at 1859. Therefore, the Court concluded that the


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ordinance “fails to give the ordinary citizen adequate notice of what is forbidden and

what is permitted.” Id. at 60, 119 S. Ct. at 1861. “The Constitution does not permit

a legislature to ‘set a net large enough to catch all possible offenders, and leave it to

the courts to step inside and say who could be rightfully detained, and who should

be set at large.’” Id. (citing United States v. Reese, 92 U.S. 214, 221, 23 L. Ed. 563

(1876)). In this case there is no uncertainty about the normal meaning of expose.

There is also no confusion about what exposure would result in a violation of the

statute. As a result, we are not persuaded that this provides police and prosecutors

unfettered discretion to charge a citizen for things such as taking a child to a violent

movie. Such an act does not subject the child to needless risk.

[¶11.]       Furthermore, as we recently explained in State v. Outka, a “‘vagueness

challenge[ ] that do[es] not involve the First Amendment must be examined in light

of the specific facts of the case at hand and not with regard to the statute’s facial

validity.’” 2014 S.D. 11, ¶ 28, 844 N.W.2d 598, 607 (citing State v. Andrews, 2007

S.D. 29, ¶ 6, 730 N.W.2d 416, 419). On the stipulated facts of this case, we find it

unpersuasive that applying the statute to Myers’s actions--driving at a speed in

excess of 100 miles per hour while intoxicated, which put the children’s lives in

jeopardy, even where no actual physical harm results-- is an unconstitutional

application of the statute. The situation that Myers put these children in is clearly

one in which the children were subjected to needless risk.




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                                    Conclusion

[¶12.]       Even though SDCL 26-10-1 does not include a definition of the word

“expose,” it is unnecessary that criminal statutes define every word used therein.

The statute is not unconstitutionally vague, because it affords the public adequate

notice as to the conduct proscribed and does not allow law enforcement unfettered

discretion to enforce it. Therefore, Myers was properly convicted under the terms of

this statute. We affirm.

[¶13.]       GILBERTSON, Chief Justice, and, KONENKAMP, ZINTER, and,

WILBUR, Justices, concur.




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