State v. Galusha

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STATE_V_GALUSHA.94-248; 164 Vt 91; 665 A.2d 595

[Filed 4-Aug-1995]

  NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 94-248

State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 1, Bennington Circuit

Harold A. Galusha                                 March Term, 1995

Ellen Holmes Maloney, J.

William D. Wright, Bennington County State's Attorney, and Marcia J. Moss, 
Deputy State's Attorney, Bennington, for plaintiff-appellant

Charles S. Martin of Martin & Paolini, Barre, for defendant-appellee

PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

       MORSE, J.  The State appeals the dismissal of an attempted extortion
  charge against defendant Harold Galusha.  It argues that "injury to the
  person" in 13 V.S.A. § 1701 includes injury other than physical harm and
  that the trial court should not have dismissed the charge for lack of a
  prima facie case.  V.R.Cr.P. 12(d).  We agree and reverse.

       The State's information alleged that defendant delivered a letter to a
  female minor, in which he threatened to disclose a sexually explicit
  videotape to the minor's parents and custodian unless she agreed to
  continue their relationship.  The videotape showed defendant and the minor
  engaged in sexual acts.

       The statute in issue states:

     A person who maliciously threatens to accuse another of a crime
     or offense, or with an injury to his person or property, with intent
     to extort money or other pecuniary advantage, or with intent to
     compel the person so threatened to do an act against his will, shall
     be imprisoned not more than three years or fined not more than
     $500.00 or both.

  13 V.S.A. § 1701 (emphasis added).

       In construing the statute, our goal is to effect legislative intent. 
  State v. Wilcox, 160 Vt. 271, 275, 628 A.2d 924, 926 (1993).  In its
  construction of § 1701, the trial court relied on the maxim that penal
  statutes should be interpreted in a manner most favorably to the accused. 
  State v. Frechette, 161 Vt. 233, 234, 637 A.2d 1080, 1081 (1993).  The
  rationale behind this rule is that strict construction is essential to
  "guard against the creation of criminal offenses outside the contemplation
  of the legislature under the guise of `judicial construction'."  State v.
  Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 (1989).  Penal statutes,
  however, must not be interpreted so strictly as to defeat the legislative
  purpose in enacting the law or to produce irrational and absurd
  consequences.  Frechette, 161 Vt. at 234, 637 A.2d  at 1081.

       Other jurisdictions have split on the issue of whether the phrase
  "injury to the person" means injury to one's mental well-being, such as
  damage to reputation, in the extortion context. Some jurisdictions have
  found that the phrase relates only to the threat of physical injury to the
  person.  See, e.g., State v. Simmons, 327 A.2d 843, 845 (R.I. 1974) (phrase
  "injury to the person" requires threat of actual bodily harm);  Schultz v.
  State, 114 N.W. 505, 507 (Wis. 1908) ("injury to the person" does not
  include threat to defame).

       Other jurisdictions have found that the phrase does include the threat
  of injury to one's mental health.  In Commonwealth v. Miller, the
  Massachusetts Supreme Judicial Court affirmed defendant's extortion
  conviction where he threatened a minor, with whom he had been having sexual
  relations, that he would expose their relationship to her parents and
  distribute photographs of her in compromising positions to her neighbors
  unless she gave him money.  432 N.E.2d 463, 467 (Mass. 1982).  In
  interpreting an extortion statute with the phrase "injury to the person"
  the court reasoned that injury to one's reputation was just as harmful as
  injury to a person's physical body.  Id. at 467.  Additionally, the court
  found that since the emphasis of extortion is on the wrongful use of fear
  to compel the victim to surrender something of value to the extortionist,
  emotional harm to the victim was a sufficient basis.  Id.


       In People v. Igaz, 326 N.W.2d 420 (Mich. 1982), the defendant was
  found guilty of extortion for threatening his former girlfriend with
  sending nude photographs of her to her second ex-husband's attorney, during
  a custody battle, unless she gave him enough money to post bail.  The court
  reasoned that if the legislature had intended to restrict the scope of the
  statute to only physical injury, it would have inserted the word "physical"
  in place of the word "any" in the statute.  Id. at 428.

       This Court has not had occasion to interpret what "injury to the
  person" means in Vermont's extortion statute.  We agree with the court in
  Miller that the legislative intent in enacting extortion statutes is to
  prevent the use of fear (a mental state) to compel a victim to submit to
  the extortionist's will.  See State v. Louanis, 79 Vt. 463, 468, 65 A 532,
  533 (1907) ("A threat is well defined to be a menace of such a nature as to
  unsettle the mind of the person on whom it is intended to operate, and to
  take away from his acts that free, voluntary action which alone constitutes
  consent.").  If the legislature had intended for "injury to the person" to
  mean only bodily injury, it would have used the term bodily or physical
  injury.  We realize that the line between mental and physical health under
  today's common knowledge is not easily separated.  Hence, limiting the
  phrase to encompass only threats of physical harm has no reasonable basis
  in policy and undermines the purpose of the law.  The context of extortion,
  with its emphasis on the use of fear to compel an unwilling actor, leads us
  to adopt the more encompassing definition of "injury to person."

       Defendant contends that since this Court has not interpreted what
  "injury to the person" means, to hold that it includes injury to a person's
  mental well-being would violate his due process rights under the federal
  and state constitutions.  A criminal statute satisfies the due process
  clause if it gives a person of ordinary intelligence fair notice that his
  contemplated conduct is forbidden.  State v. Trucott, 145 Vt. 274, 280, 487 A.2d 149, 153 (1984).  We are not persuaded by the trial court's reasoning
  that a person of ordinary intelligence would not understand that
  videotaping sexual acts with a minor and then threatening the minor with


  disclosure to compel her to continue the sexual relationship is
  forbidden by the laws of this state.

       Reversed and remanded.  

                              FOR THE COURT:

                              Associate Justice

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