Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge.
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.
KITE, C.J., delivers the opinion of the Court; VOIGT, J., files a specially concurring opinion, in which HILL, J., joins.
[¶1] Ricky L. Dougherty challenges his conviction for child endangerment. He claims Wyo. Stat. Ann. § 6-4-403(b)(iii) (LexisNexis 2009), which makes it a crime to knowingly "[c]ommit any indecent or obscene act in the presence of a child," is unconstitutionally vague. Mr. Dougherty also asserts that the district court improperly instructed the jury.
[¶2] We conclude the statute is sufficiently definite and the jury instructions were not erroneous. Consequently, we affirm.
[¶3] Mr. Dougherty and the State present identical issues on appeal:
I. Is W.S. § 6-4-403(b)(iii) unconstitutionally vague?
II. Was the jury properly instructed?
[¶4]On February 20, 2008, the retail investigator/loss prevention manager for King Soopers grocery store in Cheyenne was monitoring the store‟s security camera system and observed a man walking around the store masturbating. As he continued to watch, the investigator noticed that the man‟s attention seemed to be focused on a little girl who was shopping with her family. The man continued to follow the child and her family around the store while manipulating his genitals. The investigator contacted law enforcement and they identified the man as Mr. Dougherty.
[¶5] The State charged Mr. Dougherty with endangering the child by committing an indecent or obscene act, i.e., masturbation, in her presence in violation of § 6-4-403(b)(iii). The charge was a felony pursuant to § 6-4-403(c) because he had previously been convicted of the same crime. After numerous procedural moves, including a failed plea agreement, the matter was finally tried in August 2009. The jury returned a guilty verdict, and the district court sentenced Mr. Dougherty to serve four to five years in prison. He filed a timely notice of appeal.
A. Constitutionality of the Statute
[¶6] Mr. Dougherty argues that § 6-4-403(b)(iii) is unconstitutionally vague both on its face and as applied to him. Constitutional challenges are reviewed de novo. Teniente v. State, 2007 WY 165, ¶ 83, 169 P.3d 512, 536 (Wyo. 2007); Rabuck v. State, 2006 WY 25, ¶ 13, 129 P.3d 861, 864 (Wyo. 2006); Giles v. State, 2004 WY 101, ¶ 10, 96 P.3d 1027, 1030 (Wyo. 2004). Our review, however, starts with the presumption that the statute is constitutional. Teniente, ¶ 83, 169 P.3d at 536; Giles, ¶ 10, 96 P.3d at 1030.
[¶7] The United States and Wyoming constitutions prohibit the promulgation of vague or uncertain statutes. Rabuck, ¶ 14, 129 P.3d at 864. In general,
[a] statute violates due process under the Fifth and Fourteenth Amendments of the United States Constitution on vagueness grounds and is void if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute, and violates equal protection if it encourages arbitrary and erratic arrests and convictions.
Moe v. State, 2005 WY 58, ¶ 9, 110 P.3d 1206, 1210 (Wyo. 2005) (internal citations omitted). A statute is subject to a facial constitutional challenge in only two circumstances: 1) when the statute affects a substantial amount of constitutionally protected conduct; or 2) when the statute provides no standard of conduct at all. Id. See also, Teniente, ¶ 86, 169 P.3d at 536.
[¶8] Mr. Dougherty does not contend that § 6-4-403(b)(iii), which prohibits a person from knowingly committing "any indecent or obscene act in the presence of a child," reaches a substantial amount of constitutionally protected conduct. Consequently, ...