Opinion
No. 110,604.
2014-11-26
STATE of Kansas, Appellee, v. Ashley RODRIGUEZ, Appellant.
Appeal from Wyandotte District Court; Michael A. Russell, Judge.Corrine E, Johnson, of Kansas Appellate Defender Office, for appellant.Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Michael A. Russell, Judge.
Corrine E, Johnson, of Kansas Appellate Defender Office, for appellant. Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury sitting in Wyandotte County District Court convicted Ashley Rodriguez of making a criminal threat, a felony offense, based on statements she and a friend of hers made to the manager of an apartment in a effort to get a deposit back. On appeal, Rodriguez contends the district court erred by instructing the jury on her potential criminal liability as an aider and abettor as an alternative means to liability as a principal. The Kansas Supreme Court has foreclosed that argument. See State v. Betancourt, 299 Kan. 131, 140–41, 322 P.3d 353 (2014). She also contends the statute under which she was prosecuted, K.S.A.2013 Supp. 21–5415, is unconstitutionally vague. We reject that argument. So we affirm the conviction.
In March 2012, Rodriguez leased an apartment in a Kansas City, Kansas, complex. On a Monday, she called Bertha Johnson, the complex manager, to see about picking up the keys to the place. Johnson told Rodriguez the apartment would not be ready until the end of the week. Rodriguez requested the return of the deposit she had paid. Johnson told her that, as provided in the application, the deposit could not be refunded because more than 3 days had passed since she had been approved as a tenant. According to Johnson's testimony during the jury trial, Rodriguez became livid.
Given the issues in the case, we recount the events as Johnson and the other prosecution witnesses described them. During the trial, Johnson recounted what was said to her using euphemisms for especially vulgar or offensive terms. We rely on Johnson's account as reflected in the trial transcript.
At the end of the telephone conversation, Rodriguez told Johnson, “ ‘B, you got me effed up.... You're going to give me my money back[-]I'm on my way up there.’ “ Rodriguez arrived at Johnson's office at the apartment complex about 45 minutes later. She was accompanied by Michael Rehard. Johnson was on the telephone with a maintenance supervisor, and several other people were in the office. While Johnson was on the phone, Rodriguez paced back and forth as she struck the palm of one of her hands with the balled-up fist of the other and uttered curse words under her breath. Rehard was immediately more obstreperous—he yelled obscenities.
“Where's that B at?” Rehard asked Rodriguez. “I'm going to snatch that B from behind her desk.”
“ ‘No, I'm going to snatch that B from behind the desk,’ “ Rodriguez responded. The pair then physically approached Johnson. Rehard demanded that Johnson give Rodriguez her deposit back. Both of them continued to curse Johnson. Rehard wound up standing literally nose-to-nose with Johnson as Rodriguez egged him on. Johnson tried to show Rodriguez the rental paperwork and to explain the refund policy outlined in it. Rodriguez retorted that she hadn't read the documents before signing them. She and Rehard were unmollified. They continued to bombard Johnson with obscenities.
“ ‘Well, we'll just come back in this mother-in this MF, and we'll come back and get the money back,’ “ Rodriguez told Johnson. “ ‘We'll just set this B on fire.’ “
At that point, the maintenance supervisor came into the office and sternly asked Rodriguez and Rehard to leave. As the maintenance supervisor began escorting them away, Rehard told Johnson he would be waiting for her outside. And Rodriguez threatened to beat Johnson outside the office. Johnson then telephoned the police.
Aware of Johnson's call to the police, Rehard told her to “get a good effing look at him” and “to not forget his face because he wouldn't forget” hers. He then said Johnson should kiss her children good-bye because he was going to “hunt” her. As Rehard said that, Rodriguez blew kisses at Johnson.
At trial, Johnson told the jurors she lost her composure at the mention of her children and started shouting at Rehard and Rodriguez. One of the arriving police officers would later describe all three—Rehard, Rodriguez, and Johnson—as yelling and out of control.
After further investigation, the State charged Rodriguez and Rehard with one count of criminal threat in violation of K.S.A.2013 Supp. 21–5415(a)(l), a severity level 9 person felony. The jury convicted Rodriguez as charged in a June 2013 trial. The district court later sentenced her to 7 months in prison and placed her on probation for 12 months. Rodriguez has appealed.
For her first issue on appeal, Rodriguez contends the district court's decision to instruct the jury that she could be convicted as an aider or abettor of Rehard or as a principal created alternative means of committing the offense and the State offered insufficient evidence to support both means. Panels of this court had rendered conflicting decisions on liability as an aider and abettor being an alternative means to liability as a principal. See State v. Snover, 48 Kan.App.2d 298, 303, 287 P.3d 943 (2012) (finding no alternative means), rev. denied 299 Kan. –––– (May 29, 2014), aff'd by Betancourt, 299 Kan. 131, Syl. ¶¶ 1–3; compare State v. Boyd, 46 Kan.App.2d 945, 952–54, 268 P.3d 1210 (2011) (finding aiding and abetting to be alternative means to principal liability), rev. denied 299 Kan. –––– (May 29, 2014), overruled by Betancourt, 299 Kan. 131, Syl. ¶¶ 1–3. After Rodriguez filed her appellate brief, the Kansas Supreme Court weighed in and held that acting as a principal or as an aider and abettor did not amount to alternative means of committing a crime. Betancourt, 299 Kan. at 140–41. Consistent with Betancourt, we find no alternative means error.
For her other issue on appeal, Rodriguez says the criminal threat statute is impermissibly vague, denying her fair notice of what the legislature intended to prohibit and, thus, due process under the Fourteenth Amendment to the United States Constitution. See Grayned v. City of Rockford, 408 U.S. 104, 108–09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); State v. Adams, 254 Kan. 436, 439, 866 P.2d 1017 (1994). In doing so, Rodriguez reprises an argument she unsuccessfully presented to the district court.
Whether a statute is unconstitutionally vague turns on judicial construction of the statutory language and, thus, presents a question of law that an appellate court reviews without deference to the district court's ruling. State v. Rucker, 267 Kan. 816, 830, 987 P.2d 1080 (1999).
In pertinent part, K.S.A.2013 Supp. 21–5415 criminalizes the making of “any threat to ... [c]ommit violence communicated with the intent to place another [person] in fear.” A criminal statute must reasonably outline the proscribed conduct. Otherwise, it is unconstitutionally vague. See F.C.C. v. Fox Television Stations, Inc., 567 U.S. ––––, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012) (“A fundamental principle of our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”); Rogers v. Tennessee, 532 U.S. 451, 457, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) (“[T]his Court has often recognized the ‘basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.’ “ [quoting Bouie v. City of Columbia, 378 U.S. 347, 350, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) ] ). In short, a reasonable person should not have to guess whether his or her conduct amounts to a crime. Adams, 254 Kan. at 439. The test is this: “ ‘[An enactment must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.’ “ State v. Watson, 273 Kan. 426, 430, 44 P.3d 357 (2002) (quoting Groyned, 408 U.S. at 108); see also Dissmeyer v. State, 292 Kan. 37, 39, 249 P.3d 444 (2011) (statute unconstitutional if it “either requires or forbids the doing of an act in language that is so vague that persons of common intelligence must guess at its meaning”).
Rodriguez says the word “fear” renders K.S.A.2013 Supp. 21–5415 so vague as to be unintelligible because a person must guess about who has to be fearful. The actual victim? A hypothetical reasonable person? The defendant if he or she were in the victim's place? The argument, however, both misses the point of the statute and misconstrues the statutory language. The statute criminalizes a threat of violence the maker communicates to cause fear. The actus reus is a communicated threat of violence. And the mens rea is the intent to induce fear. The reaction, if any, of the recipient of the threat is irrelevant.
So a person reading the statute would readily understand the law punishes someone for communicating a threat of violence if he or she aims to make someone else fearful. The language plainly focuses on the intent or purpose of the criminal defendant. There is nothing vague or unclear about that aspect of K.S.A.2013 Supp. 21–5415. The required wrongful intent is also clearly expressed in the statutory language—to induce fear. Fear is a distinctive emotional state that's well understood. See Merriam–Webster's Collegiate Dictionary 458 (11th ed.2003) (defining “fear” as “an unpleasant often strong emotion caused by anticipation or awareness of danger”). It stands apart from other powerful reactions, such as rage or disgust. A person needn't fall back on guesswork to understand the prohibition: If I communicate a threat because I want to make someone afraid, I've broken the law. Rodriguez' contention is unpersuasive. The requisite intent for a violation of K.S.A.2013 Supp. 21–5415 has not been set out in a constitutionally vague way. Earlier this year, another panel of this court came to the same conclusion. State v. Taylor, No. 109,147, 2014 WL 113451, at *6 (Kan.App.2014) (unpublished opinion).
Rodriguez relies heavily on State v. Bryan, 259 Kan. 143, 144, 910 P.2d 212 (1996), holding the then-current statute criminalizing stalking to be unconstitutionally vague because it permitted a conviction when the defendant's conduct “seriously alarms, annoys, or harasses” the victim. The constitutional vice of the stalking statute lay in its reliance on the actual response of the particular victim—something that could not be discerned from a reading of the statutory language, especially with respect to the subjective and ill-defined concept of annoyance. 259 Kan. at 148–49. What may be one person's annoyance may be another's rap or punk music. A person, therefore, could not fairly determine just what sort of conduct might induce annoyance and, in turn, criminal prosecution.
But Bryan is inapposite. As we have pointed out, K.S.A.2013 Supp. 21–5415 does not suffer from the same defect. The victim's response to the threat of violence is irrelevant; it is the defendant's intent in making the threat that triggers criminal liability.
In any given prosecution for criminal threat, the State might face a real chore in marshalling evidence to prove a defendant's intent to induce fear. Seldom do people announce the intent behind their actions, especially potentially criminal conduct. See State v. Griffin, 279 Kan. 634, 638, 112 P.3d 862 (2005) (“Intent, a state of mind at the time an offense is committed, does not need to be and rarely can be directly proven.”). So proof of bad intent typically depends on circumstantial evidence. 279 Kan. at 638. But that's a matter of the sufficiency of the evidence, not constitutional vagueness. See State v. Hurd, 298 Kan. 555, 567–68, 316 P.3d 696 (2013) (noting that specific intent may be proved with circumstantial evidence in finding sufficient evidence to support conviction for criminal threat).
Affirmed.