Summary 2010 WY 127

Summary of Decision issued September 21, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Dougherty v. State

Citation: 2010 WY 127

Docket Number: S-10-0016

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

Representing Dougherty: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Dougherty challenged his conviction for child endangerment. He claimed § 6-4-403(b)(iii) which makes it a crime to knowingly commit any indecent or obscene act in the presence of a child, is constitutionally vague. He also asserted the district court improperly instructed the jury.

Facial Challenge: The Court was asked to decide whether the statute provided a standard of conduct. In analyzing the constitutionality of § 6-4-403(b)(iii) the Court looked to cases with similar statutory language. It noted that while the statutory terms “indecent” and “obscene” were somewhat imprecise, they are generally regarded as synonymous and “indecent” has been defined in prior cases, thereby providing the ordinary citizen with notice of the types of conduct that are prohibited. Further, the statute only criminalizes indecent or obscene acts when in the presence of a child (defined as a person under the age of sixteen.) given the statute cannot be said to provide “no standard at all,” it is not unconstitutional on its face.
“As applied” challenge: The standard of review requires the Court to accept the State’s view of the facts. Utilizing that standard, the Court accepted that Dougherty was masturbating in the presence of a little girl. Moreover, the Court has recognized that masturbation in the presence of a child is “indecent” under the indecent liberties statute.
Variance/constructive amendment: Dougherty claimed there was a fatal variance between the information and the jury instructions and/or a constructive amendment to the charge at trial. A constructive amendment occurs when the evidence presented at trial, together with the jury instructions, alter the charge so much that the defendant is convicted of a different crime than was charged. The information contained the details of the charged crime while the jury instruction did not. The State’s theory of the case remained consistent giving Dougherty sufficient notice of the charges and the facts which would be presented a trial. Dougherty claimed that by failing to provide the particulars to the jury in the instructions, the charge was constructively amended. United States v. Bishop was not applicable to the instant case because unlike it, the evidence presented at Dougherty’s trial did not differ from that included in the information. Here, the jury was instructed to determine whether his conduct was indecent or obscene. There was no possible alternative offense at issue in the trial and therefore, no possibility that he was convicted of an offense not included in the charging document.
Jury instructions: Dougherty did not establish that under the circumstances of the instant case, the district court violated a clear and unequivocal rule of law by treating the terms “obscene or indecent” as a single element and not providing a special verdict form to force the jury to choose between the alternatives. Even if a special verdict form should have been used, the Court can still uphold a conviction if there is sufficient evidence of each alternative.

Conclusion: The Court concluded the statute was sufficiently definite and the jury instructions were not erroneous.

Affirmed.

C.J. Kite delivered the decision.

J. Voigt, specially concurring, joined by J. Hill: The Court has previously found statutory language such as this to be constitutional, so the Justice concurred. He wrote separately to voice his continued difficulty with a criminal statute that is so broadly drawn. It is not up to juries to be pointing out, after the fact, what conduct is criminal; that is a legislative task.

Link: http://tinyurl.com/2bjqaz8 .

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