State v. Buhman

887 P.2d 582, 181 Ariz. 52, 166 Ariz. Adv. Rep. 6, 1994 Ariz. App. LEXIS 114
CourtCourt of Appeals of Arizona
DecidedMay 26, 1994
Docket1 CA-CR 92-0135
StatusPublished
Cited by13 cases

This text of 887 P.2d 582 (State v. Buhman) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Buhman, 887 P.2d 582, 181 Ariz. 52, 166 Ariz. Adv. Rep. 6, 1994 Ariz. App. LEXIS 114 (Ark. Ct. App. 1994).

Opinion

OPINION

FIDEL, Judge.

Is an Arizona statute unconstitutionally vague that subjects a parent to criminal sanctions for a knowing failure to furnish “reasonable support” for a minor child? We consider that question in this appeal.

I

The state charged Bruce Gene Buhman, the appellee-defendant, with one count of failure to provide for his minor child. The state alleged that, between January 1, 1987, and December 31, 1990, Buhman gave no financial support to his child, though he had the means to do so. The alleged crime was defined as follows by Ariz.Rev.Stat.Ann. (“A.R.S.”) § 12-2458 (1988):

A. Any parent of a minor child who knowingly fails, without lawful excuse, to furnish reasonable support for his or her child is guilty of a class 6 felony.
C. The court, in determining the culpable mental state of the parent who fails to support his or her child, shall consider all assets, earnings and entitlements of such parent. 1

On defendant’s motion, the trial court dismissed the indictment, holding the statute unconstitutionally vague. In this timely appeal, the state contends that the statute is susceptible to constitutional construction.

We first consider the state’s contention that the trial court should not have reached the issue of vagueness. Rather, the state now argues, the defendant lacked standing to raise the issue because his conduct as alleged in the indictment—failure to provide any support, though he had the means to do so— was clearly proscribed by the statute’s core. See, e.g., State v. Tocco, 156 Ariz. 116, 119, 750 P.2d 874, 877 (1988) (A defendant ordinarily lacks standing to challenge a statute on grounds of overbreadth or vagueness unless his conduct falls within the arguably ambiguous area of the statute rather than within its core.).

Alternatively, the state cites our opinion in Norton v. Superior Court, 171 Ariz. 155, 829 P.2d 345 (App.1992), for the proposition that the issue of vagueness was not ripe for decision and should have been deferred until defendant’s standing to raise the issue was fleshed out by the facts. In Norton, we took special action jurisdiction to hold that portions of A.R.S. § 12-2458 the state conceded to be unconstitutional were severable from the portion of the statute challenged here. We declined, however, to consider a vagueness challenge to the remainder, explaining:

When a criminal statute does not implicate the First Amendment, the question whether it is unconstitutionally vague is generally determined by examining its application to the facts of the case at hand. Although *54 an exception applies when a statute is so vague that it is wholly insusceptible to constitutional construction, ... the vagueness issue in this case is one best tested in the solid context of the facts. Accordingly, at this stage of the proceedings, when no fact-finding has been done, we conclude that the vagueness issue is not ripe.

Id. at 157, 829 P.2d at 347 (citations omitted).

Though we now face the issue we declined to reach in Norton, this case differs in significant respects. In Norton, a special action, we had discretionary jurisdiction and were free to decline interlocutory review of an issue that would be better developed by the time of an appeal. See Rule 1, Rules of Procedure for Special Actions. This case, by contrast, draws on our mandatory appellate jurisdiction and obliges us to decide any issue fairly framed and necessary to its disposition. See A.R.S. § 12-120.21. Additionally, this case frames the precise issue we described in Norton as permitting an exception to general considerations of standing and ripeness: whether the “statute is so vague that it is wholly insusceptible to constitutional construction.” Norton, 171 Ariz. at 157, 829 P.2d at 347. The state joined issue over facial invalidity in the trial court; it questioned neither defendant’s standing nor the ripeness of the issue at that time; and the trial court found the statute invalid on its face. Accordingly, as the question of facial invalidity is squarely presented and necessary to the disposition of this appeal, we proceed to decide it.

Ill

A statute is unconstitutionally vague “if it does not give persons of ordinary intelligence a reasonable opportunity to learn what it prohibits and does not provide explicit standards for those who will apply it.” State v. Takacs, 169 Ariz. 392, 394, 819 P.2d 978, 980 (App.1991). The evil of such a statute, succinctly stated, is “lack of fair warning and of a standard for the adjudication of guilt____” Anthony G. Amsterdam, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 76 (1960).

Section 12-2458 establishes the crime of knowing parental failure to furnish “reasonable support” for a minor child. The trial court found the statute unconstitutionally vague because it neither internally defines, nor provides a reasonably ascertainable external basis for defining, the standard of “reasonable support.” Judge Campbell illustrated his concern with these examples:

Let me tell you the problems I have with it. “Reasonable support” by itself could mean something different when the defendant, for example, was a high paid obstetrician as opposed to someone who was a wage earner. That, to me, creates some inherent ambiguity in the statute. As I look at the [term] “reasonable support,” the legislature has left it up to the jury to do whatever it wants to do without any guidance.
Ht H? Hí H* Hí
Let’s say if Nelson Rockefeller was still alive and he was charged with failing to give “reasonable support.” A jury could think that his failure to give $2 million a year to his son might be unreasonable given his great wealth. How would someone like Nelson Rockefeller know what reasonableness is? It’s entirely pegging it to ability that creates the very thing that troubles the Court.
H: H* Hí Ht Hí Hi
If you had a Catholic couple that divorced, and the mother wanted the child to go to a Catholic school and the husband said “No way. I’m not paying for it.” And somehow or [other] the state brought a criminal action saying that, you know, you weren’t giving reasonable support because you weren’t giving enough money to send the child to a Catholic high school. Conceivably that’s a jury question whether that’s reasonable support or not.

To place the trial court’s concerns in context, we recognize that ex post facto assessments of the reasonableness of conduct and state of mind are ubiquitous and probably indispensable in the law.

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Cite This Page — Counsel Stack

Bluebook (online)
887 P.2d 582, 181 Ariz. 52, 166 Ariz. Adv. Rep. 6, 1994 Ariz. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-buhman-arizctapp-1994.