Summary 2006 WY 133

Summary of Decision issued October 19, 2006

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Case Name: Ruby v. State

Citation: 2006 WY 133

Docket Number: 05-165

Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant attorney General and Eric A. Johnson, Director, Prosecution Assistance Program.

Issue: Whether Appellant’s conduct violated Wyo. Stat. Ann. § 14-3-105(a). Whether Wyo. Stat. Ann. § 14-3-105 is unconstitutionally vague as applied to Appellant’s conduct because there is not notice that his conduct was violative of the indecent liberties statute.

Holding: The victim, sixteen years old, began dating Appellant, twenty-one years old, when she was a junior in high school. The victim’s mother learned of the relationship and demanded termination of it. When Mother found out that Appellant and victim had a sexual relationship, she reported it to police. Appellant admitted to a sexual relationship with the victim and that he knew it was against “the rule”. A jury found Appellant guilty of taking “immoral” liberties with a 16 year old girl in violation of Wyo. Stat. Ann. § 14-3-105. The district court sentenced Appellant to three to five years imprisonment but suspended execution of that sentence in favor of probation.
Standard of Review: The Court reviews claims of insufficiency of evidence accepting as true the State’s evidence, affording to the State those inferences that can be reasonably and fairly drawn from that evidence. The Court does not consider the evidence in conflict with the State’s evidence. Their duty is to determine whether a quorum of reasonable and rational individuals would or could have come to the same result as the jury did. When a statute is challenged on an “as applied” basis, the Court examines the statute solely in light of the complainant’s specific conduct. The Court decides whether the statute provides sufficient notice to a person of ordinary intelligence that appellant’s behavior was illegal and whether the facts of the case demonstrate arbitrary and discriminatory enforcement.
Appellant’s probation officer discovered a videotape that depicted him engaging in sexual activities with a seven-year-old child. Appellant was sixteen at the time and was charged with two counts of second-degree sexual assault and one count of taking indecent liberties with a minor which was predicated on the videotaping of the incident. Appellant challenges the validity of the indecent liberties conviction.
After Appellant’s brief was filed in the instant case, the Court issued their decision in Rabuck. Rabuck challenged the constitutionality of the statute as applied to his conduct making the same arguments as put forth by Appellant. The Court stated that the indecent liberties statute has been a part of Wyoming law for nearly five decades and they have uniformly given it broad application. When the Court has considered novel conduct in light of the application of the statute, they have examined the defendant’s consciousness of guilt in assessing whether they had notice of the criminal prohibition. Other decisions of the Court have demonstrated that physical touching is not a required element of the crime of indecent liberties. In Rabuck, the Court found the reasoning of State v. McClees persuasive which determined that constructive presence can place a defendant “with a minor” in establishing the crime of indecent liberties. The Court rejected Appellant’s argument that the statute does not proscribe the discreet video recording of minors engaged in indecent acts. They concluded that the “common sense of society” would regard such acts as a violation of the statute and that a person of ordinary intelligence had sufficient notice that such conduct would be against the law.
Concurrence: C.J. Voigt concurred in the result of the majority opinion out of deference to the doctrine of stare decisis.

Affirmed.

J. Hill delivered the order for the court with a special concurrence from C.J. Voigt.

Link to the case: http://tinyurl.com/y4gv93 .