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State v. Wiles7/26/2000
violates some constitutional provision. State v. Stokely, 842 S.W.2d 77, 79 (Mo. banc 1992); State v. Brown, 660 S.W.2d 694, 697 (Mo. banc 1983). Any doubt should be resolved in favor of the law's validity. State v. Young, 695 S.W.2d 882, 883 (Mo. banc 1985). Furthermore, impossible standards of specificity are not required. Brown, 660 S.W.2d at 697. "It is not the fact that the legislative branch of government which enacted the statute could have chosen more precise or clearer language which determines the issue of vagueness." State v. McMilian, 649 S.W.2d 467, 471 (Mo.App. W.D. 1983).
In determining whether a statute is void for vagueness, the standard is whether the terms or words used in the statute are of common usage and are understandable by persons of ordinary intelligence. State v. Mahurin, 799 S.W.2d 840, 842 (Mo. banc 1990), cert denied 502 U.S. 825, 112 S.Ct. 90, 116 L.Ed.2d 62 (1991). A valid statute must give a person of ordinary intelligence a reasonable opportunity to learn what is prohibited. Id.
In State v. Johnson, 55 S.W.2d 967 (Mo. 1932), the Missouri Supreme Court considered the issue of whether the term "operate" as used in the "driving while intoxicated" statute required additional definition. The court held that "operate" had a well-understood meaning, and stated:
Error is assigned [by the defendant] because the instructions of the trial court failed to define the word "operate" and the phrase "intoxicated condition." There is no merit in this contention. The words have a well-understood meaning. Any juror would readily understand what was meant by a charge of operating a motor vehicle while defendant was in an intoxicated condition. A court's failure, in its instructions, to define words of common, everyday usage, having well-defined meanings, is not error. Id. at 968.
Similarly, the term "operate" as used in the current version of Sections 577.010.1, RSMo 1994, and 577.001.1, RSMo Cum. Supp. 1998, has a plain and ordinary meaning cognizable by a person of ordinary intelligence. As such, the trial court had no obligation to the jury to further define the term "operate" beyond the definition given in Section 577.001.1, RSMo Cum. Supp. 1998. See United States v. Shyres, 898 F.2d 647, 654 (8th Cir. 1990), cert. denied 498 U.S. 821, 111 S.Ct. 69, 112 L.Ed.2d 43 (1990) ("response to a jury request for supplemental instructions is a matter within the sound discretion of the [trial court]"); United States v. Smith, 635 F.2d 716, 720 (8th Cir. 1980) (trial court has "no obligation to define words within the ordinary understanding of the jury").
In this case, the submitted jury instruction was adequate, satisfying the constitutional requirements as to definiteness and certainty, and negated the possibility of arbitrary and discriminatory enforcement. See Mahurin, 799 S.W.2d at 842. Consequently, the trial court's denial of Defendant's motion to dismiss was proper. Further, the trial court did not err in refusing Defendant's proposed instruction because his instruction did not conform to the statute, as it would have expressly limited "operating" to "physically driving a motor vehicle," making the terms "physically driving" and "operating" synonymous. As previously discussed in Defendant's first point, this result is unacceptable. Defendant's second point is therefore denied.
The judgment of the trial court is affirmed.
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