Appeal from Superior Court of King County. Docket No: 95-1-02293-2. Date filed: 07/24/95. Judge signing: Hon. George T. Mattson.
Petition for Review Denied May 6, 1997,
Authored by H. Joseph Coleman. Concurring: William W. Baker, Visiting Judge.
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- Mandred Moore appeals his conviction of first degree rape, arguing that the first degree rape statute is unconstitutionally vague because it does not define the "serious physical injury" element. Moore also claims that this vagueness results in unequal enforcement, violating his right to equal protection. In addition, Moore argues that the trial court erred by failing to give jury instructions defining "serious physical injury." Finally, Moore claims that even if the first degree rape statute is constitutional, his conviction should be reversed because the victim's bruises, scratches, and dead tooth do not amount to "serious physical injury." Because "serious physical injury" is a phrase that persons of common intelligence can understand, and sufficient evidence supports the finding that the victim's injuries were "serious," we affirm.
On the night of March 21, 1995, Moore knocked JS into some thorn bushes and raped her vaginally, anally, and orally. During the rape, Moore hit JS repeatedly in the face with his fists, causing her to lose consciousness for part of the time.
JS's physical injuries included two black eyes, bruised cheeks, thorn scratches, and a loose tooth. Two days after the rape, JS saw her dentist, complaining that her left central incisor was loose, out of position, and sore. The dentist took x-rays which revealed no root or bone fractures. Within a month, however, JS's tooth had discolored because the nerve had died. Her dentist performed a root canal and bleached the tooth. He testified that JS would need a crown in the future. Although she can use the tooth normally, the damage is permanent, and the tooth no longer senses heat or coolness.
The State charged Moore with first degree rape. Before trial, Moore moved to dismiss on the grounds that the first degree rape statute was unconstitutionally vague and that there was insufficient evidence of "serious physical injury." The court denied the motion, and the matter proceeded to trial. After the State presented its case, Moore again moved to dismiss. Although the court refused to hold the statute void for vagueness, it reduced the charge to second degree rape, ruling that the evidence was insufficient to support a finding of serious physical injury. However, at the close of the defense's case, the court granted the State's motion for reconsideration, reinstating the first degree rape charge. The jury found that JS's physical injuries were "serious" and convicted Moore of first degree rape.
We first address whether Washington's first degree rape statute is unconstitutionally vague for failing to define "serious physical injury." Moore was convicted under the following statutory language: "A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator . . . inflicts serious physical injury[.]" RCW 9A.44.040(1)(c).
Due process requires that criminal statutes provide fair notice of proscribed conduct and ascertainable standards for adjudication. State v. Halstien, 122 Wash. 2d 109, 116-17, 857 P.2d 270 (1993). When a challenged statute does not implicate First Amendment rights, we evaluate it for vagueness "as applied." State v. Sigman, 118 Wash. 2d 442, 445, 826 P.2d 144, 24 A.L.R.5th 856 (1992). A statute is void for vagueness if it either: (1) "does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed[;]" or (2) "does not provide ascertainable standards of guilt to protect against arbitrary enforcement." City of Spokane v. Douglass, 115 Wash. 2d 171, 178, 795 P.2d 693 (1990). Moore concedes that the first part of this test is met because ordinary people are on notice that inflicting serious physical injury in the course of rape is proscribed. He argues, however, that the undefined statutory term, "serious physical injury," contains no ascertainable standards for adjudication, leaving Judges and juries free to decide arbitrarily whether a defendant is guilty of first degree rape.
A statute is presumed constitutional, and the party challenging it must prove beyond a reasonable doubt that it is unconstitutionally vague. Halstien, 122 Wash. 2d at 118. Additionally, the fact that a statutory term is not defined and requires a subjective evaluation does not automatically mean that the statute is unconstitutionally vague. See Douglass, 115 Wash. 2d at 180-81. A statute fails the second part of the vagueness test only if it contains "no standards" or lacks "'minimal guidelines . . . to guide law enforcement.'" Douglass, 115 Wash. 2d at 181 (quoting State v. Maciolek, 101 Wash. 2d 259, 267, 676 P.2d 996 (1984); State v. Worrell, 111 Wash. 2d 537, 544, 761 P.2d 56 (1988)).
Although some discretion is inherent in the task of defining an injury as "serious," the subjective nature of the term does not violate constitutional principles. The need for subjective evaluation of a statute's application is fatal only if the statute invites an inordinate amount of discretion. See American Dog Owners Ass'n v. City of Yakima, 113 Wash. 2d 213, 216, 777 P.2d 1046 (1989). The Supreme Court has upheld a statute authorizing revocation of driver's licenses upon a finding that the driver "committed a serious violation of the motor vehicle laws[.]" State ex rel. Ralston v. Department of Licensing, 60 Wash. 2d 535, 537 n.4, 374 P.2d 571 (1962). The court reasoned that this language did not leave the Director of Licensing with unbridled discretion to classify violations as "serious," because the statute was sufficiently definite to give adequate warning that drunk driving fell within its terms. Ralston, 60 Wash. 2d at 538-39.
We hold that the first degree rape statute is not unconstitutionally vague as applied to Moore because common understanding of the word "serious" provides a sufficient standard to prevent arbitrary enforcement. Although the statute's application calls for a subjective evaluation of the victim's injuries, the requirement that the injuries be "serious" does not invite an inordinate amount of discretion. A jury could reasonably conclude that bruising by repeated beating, thorn scratches, and a dead tooth constitute "serious" injury as the term is commonly understood.
We next address Moore's equal protection argument. Moore claims that RCW 9A.44.040(1)(c) violates equal protection because "serious physical injury" is not defined as injury that either creates a substantial risk of death or impairs the function of a body part. He reasons that without this definition, the State bases its determination of whether to charge first or second degree rape on impermissible grounds.
The equal protection clauses of the Fourteenth Amendment and Washington Constitution article 1, section 12 require that similarly situated people receive like treatment under the law. E.g., State v. Schaaf, 109 Wash. 2d 1, 17, 743 P.2d 240 (1987). A defendant challenging the enforcement of a statute on equal protection grounds must show deliberate or purposeful discrimination based upon an unjustifiable standard ...