GALLOWAY v. STATE, 365 Md. 599 (2001)

781 A.2d 851

No. 21, September Term, 2000.Court of Appeals of Maryland.
Filed: September 19, 2001.

Circuit Court for Anne Arundel County Case No. K-98-00688.

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Bell, C.J., Eldridge, [*] Rodowsky, Raker, Wilner, Cathell, Harrell, JJ.

Opinion by Harrell, J.

George M. Galloway, Jr., Petitioner, while serving a sentence for prior convictions, was charged with harassment and stalking, pursuant to Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 121A,[1] for letters he wrote from prison to the victim of the crimes for which he was imprisoned. On 26 October 1998, a pre-trial hearing was held in the Circuit Court for Anne Arundel County on Galloway’s written motion to dismiss challenging the constitutionality of the statute on its face and as applied to his conduct. After hearing argument from the parties and upon their urging, the court reserved its ruling on the motion. Petitioner then waived his right to a jury trial

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and agreed to proceed with a bench trial on an agreed statement of the facts and a not guilty plea. Galloway moved for judgments of acquittal at the end of the recitation of the agreed facts. The court took the case under advisement.

The Circuit Court, in a written opinion and order dated 28 October 1998, denied Petitioner’s motion to dismiss and motion for judgment of acquittal with regard to the charge of harassment. The court denied the motion to dismiss, but granted the motion for judgment of acquittal, as to the charge of stalking.[2] On 4 November 1998, after entertaining further argument from counsel, the court found Galloway guilty of the crime of harassment. Sentencing proceeded immediately, and Galloway was sentenced to 90 days incarceration for the conviction. On direct appeal, the Court of Special Appeals affirmed Galloway’s conviction of harassment. Galloway v. State, 130 Md. App. 89, 744 A.2d 1070 (2000). We granted Petitioner’s petition for writ of certiorari. Galloway v. State, 358 Md. 608, 751 A.2d 470 (2000). We agreed to consider the following question:

Did the trial court err in denying Petitioner’s motion to dismiss and in convicting him of harassment under Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 121A, now codified with minimal changes as § 123, specifically in the face of a challenge that the statute is unconstitutionally vague and overbroad on its face and as applied to Petitioner and in the face of a challenge that the facts did not support such a conviction?

I.
In 1995, Galloway was convicted of stalking and kidnapping Kimberly Javin (Javin), his “common law wife.” For these

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crimes, he was sentenced to twelve years incarceration at the Maryland Correctional Training Center (MCTC). It was while serving this sentence that it was alleged that he committed the crime of harassment which is the subject of the present case. According to the agreed statement of facts, between 11 April 1997 and 11 March 1998 he sent 122 letters to Javin at her residence. In addition, he sent an additional 11 letters to her in care of Javin’s parents to their home address. Both before and after 17 April 1997, Javin, her parents, Galloway’s former attorney in the kidnapping/stalking case, and the assistant warden and a correctional psychologist at MCTC, requested of Galloway that he not send letters to Javin. The prosecution, at the 4 November 1998 hearing, stated that at least five people, including Javin, told Galloway directly to stop writing these letters.

By stipulation, the parties agreed that Javin, if called to testify, would state that “the letters seriously alarmed her and caused her to fear for her life on or after . . . [Galloway’s] release date, which she believ[ed] to be April of 1999.” It was agreed further that Javin would testify that her fears stemmed from the fact that Galloway was serving a prison term after having been convicted of stalking and kidnaping her on 20 March 1995. As a condition of his sentence and future probation flowing from those crimes, Galloway was to have no contact with Javin. The parties also agreed that Javin felt that Galloway’s continuing reference in his letters to Javin “to him being Moses and the enforcer of the law and God’s and Jesus’s ambassador mean[t] that he [would] kill her so that they [could] be with God,” notwithstanding that one of the letters containing this language began with the words “[n]othing in this letter is meant to be a threat.”[3]

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Galloway was charged with harassment and stalking. Maryland Code, (1957, 1996 Repl. Vol., 2000 Cum. Supp.), Article 27, § 123, the harassment statute, provides:

(a) Course of conduct defined. In this section “course of conduct” means a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.
(b) Applicability. This section does not apply to any peaceable activity intended to express political views or provide information to others.
(c) Prohibited Conduct. A person may not follow another person in or about a public place or maliciously engage in a course of conduct that alarms or seriously
annoys another person:[4]

(1) With intent to harass, alarm, or annoy the other person;

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(2) After reasonable warning or request to desist by or on behalf of the other person; and
(3) Without a legal purpose.
(d) Penalty. A person who violates this section is guilty of a misdemeanor and, upon conviction, is subject to a fine not exceeding $500 or imprisonment for not more than 90 days or both. (Emphasis added).

The trial judge acquitted him of the stalking charge, but found him guilty of the harassment charge. Galloway argued that § 123 is unconstitutionally vague and overbroad under the U.S. Constitution[5]
and, in the alternative, that the evidence is insufficient to support a conviction of harassment under § 123. According to the trial judge, § 123 is neither unconstitutionally vague or overbroad. The judge, in his written opinion, stated that § 123 is “constitutional as . . . [it] does not suffer from vagueness” and “that the meaning of the statutes have been fairly ascertained by judicial determinations.” (Citing Streater v. State, 119 Md. App. 267, 704 A.2d 541 (1998), rev’d on other grounds, 352 Md. 800, 724 A.2d 111 (1999); Pall v. State, 117 Md. App. 242, 699 A.2d 565 (1997)). The trial court also concluded that there was sufficient evidence to support Galloway’s conviction of harassment based on the following:

In sending the victim over 130 letters over the course of eleven months, the Court can find that [Galloway] maliciously engaged in a course of conduct that seriously alarmed and annoyed the victim. In repeating the same messages and expressing [Galloway’s] desire to reunite with the victim, the Court can find that Defendant intended to harass

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the victim. As [Galloway] admits in his letter that he knew that victim did not want him to contact her, the Court can find that [Galloway] received a reasonable request to desist. As these were personal letter [sic], the Court can find that they served no legal purpose. Therefore, the Motion for Judgment of Acquittal is denied.

The Court of Special Appeals affirmed the Circuit Court’s judgment, agreeing that the language of § 123 was neither vague nor overly broad and that there was sufficient evidence to support a conviction of harassment.

In this opinion, we shall address the following: (1) is § 123 unconstitutionally vague; (2) is § 123 unconstitutionally overly broad; and, (3) if § 123 can withstand constitutional scrutiny, was the evidence adduced against Petitioner sufficient to support a finding of harassment. We determine, after examining the legislative history of § 123 and surveying the treatment accorded similar statutes by other courts, that a reasonable person standard should be read into the language of subsection (c)(1) of § 123, and with that judicial gloss, § 123 survives constitutional scrutiny.[6] We further conclude that the evidence is sufficient to support Petitioner’s conviction of harassment.

II. Constitutionality of § 123

In determining the constitutionality of statutes, “[t]he basic rule is that there is a presumption” that the statute is valid. State v. Wyand, 304 Md. 721, 727, 501 A.2d 43, 46 (1985) (internal quotation marks omitted) (quoting Supermarkets Gen. Corp. v. State, 286 Md. 611, 409 A.2d 250

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(1979)), cert. denied, 475 U.S. 1095, 106 S.Ct. 1492, 89 L.Ed.2d 893 (1986). We are reluctant to find a statute unconstitutional if, “by any construction, it can be sustained.” Beauchamp v. Somerset County, 256 Md. 541, 547, 261 A.2d 461, 463 (1970). If, however, a statute violates a “mandatory provision” of the Constitution, “we are required to declare such an act unconstitutional and void.” Id.; see Cohen v. Governor of Maryland, 255 Md. 5, 22, 255 A.2d 320, 328 (1969). Therefore, if it is established that a statute is vague — offends due process[7] — and/or overbroad — sweeps within the ambit of constitutionally “protected expressive or associational rights”[8]
— then the statute is unconstitutional. The party attacking the statute has the burden of establishing its unconstitutionality.[9]

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Beauchamp, 256 Md. at 547, 261 A.2d at 463 (citing National Can Corp. v. State Tax Comm’n, 220 Md. 418, 153 A.2d 287 (1959), appeal dismissed, 316 U.S. 534, 80 S.Ct. 586, 4 L.Ed.2d 538 (1960)). Petitioner fails to shoulder this burden in the present case.

A. Legislative History of § 123
According to the 1986 Maryland Laws, chapter 721, the purpose of § 123 is

prohibiting a person from following another person in a certain manner or from engaging in certain other conduct under certain circumstances; defining a certain term; providing penalties for a violation of this Act; providing that this act does not apply to certain conduct; and generally relating to the crime of harassment. (Emphasis added).

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There is no documentation in the bill file regarding whether this statute was modeled after that of another state, even though, as we discus infra, other states have used identical or similar language in fashioning their harassment statutes and in defining the term “harass” in their statutes. The only other insight provided is in the Summary of Committee Report on House Bill 381(the bill from which the harassment statute came) prepared by the Senate Judicial Proceedings Committee. According to th Report, the proposed harassment statute

will help law enforcement agencies in their attempts to defuse ongoing feuds and longstanding disputes between neighbors, former boyfriends and girlfriends, and adults which arise on a daily basis. The Baltimore Police Department testified that police departments’ hands are virtually tied without this legislation. House Bill 381 would give law enforcement personnel the opportunity to avoid extreme situations which occur due to harassment and would allow the police to diffuse potentially harmful activity
This bill also provides a vehicle for the relief of many victims of harassment who are without legal means to otherwise deal with the problem of harassment.

Summary of Comm. Rep. on H.B. 381, at 1-2 (1986). Though this Report is helpful in elaborating on the purpose of the harassment statute, it does not mention whether the Maryland statute was modeled after the harassment statutes of other states.

B. Vagueness
Petitioner argues that the statute’s use of the words “harass,” “annoy,” “alarm,” and “without legal purpose” in § 123(c) and “political views or . . . information” in § 123(b) are unconstitutionally vague, even in light of Eanes v. State, 318 Md. 436, 569 A.2d 604 (1990), which advances the proposition that one must apply normal meanings to words of common understanding. Petitioner further maintains that the “use of these undefined terms effectively reduces the statutory language to such a state of uncertainty that it fails to delineate

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the proscribed conduct in a clear and comprehensible manner creating an ambiguity of constitutional dimension which leaves individuals guessing at the statute’s scope.” Petitioner’s Br. at 7. We disagree and conclude that, after applying Eanes v. State,[10] the language of § 123 withstands constitutional scrutiny.

The void-for-vagueness doctrine as applied to the analysis of penal statutes requires that the statute be “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Williams v. State, 329 Md. 1, 8, 616 A.2d 1275, 1278 (1992) (internal quotation marks omitted) (quoting Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)); see Eanes, 318 Md. at 458-59, 569 A.2d at 615; Bowers v. State, 283 Md. 115, 120, 389 A.2d 341, 345 (1978). A statute must fit this standard so as not to offend due process rights. See supra note 7. As the U.S. Supreme Court explained:

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s]

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upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.”

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972) (alterations in original) (footnotes omitted) (internal quotation marks omitted).

A well grounded principle in federal constitutional law is that, when considering the void-for-vagueness doctrine, courts consistently consider two criteria or rationales. See, e.g., Williams, 329 Md. at 8, 616 A.2d at 127 ; Eanes, 318 Md. at 459, 569 A.2d at 615; Bowers, 283 Md. at 120-21, 339 A.2d at 345. The first rationale is the fair notice principle that “persons of ordinary intelligence and experience be afforded a reasonable opportunity to know what is prohibited, so that they may govern their behavior accordingly.” Williams, 329 Md. at 8, 616 A.2d at 1278 (internal quotation marks omitted) (quoting Bowers, 283 Md. at 121, 389 A.2d 341); see Ferro v. Lewis, 348 Md. 593, 607, 705 A.2d 311, 318 (1998). The standard for determining whether a statute provides fair notice is “whether persons `of common intelligence must necessarily guess at [the statute’s] meaning.'” Williams, 329 Md. at 8, 616 A.2d at 1278 (alteration in original) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973)). A statute is not vague under the fair notice principle if the meaning “of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning Bowers, 283 Md. at 125, 389 A.2d at 348 (emphasis added) (citations omitted); see Eanes, 318 Md. at 460, 569 A.2d at 615-16.

The second criterion of the vagueness doctrine regards enforcement of the statute. This rationale exists “to ensure that criminal statutes provide `legally fixed standards and adequate guidelines for police, judicial officers, triers of

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fact and others whose obligation it is to enforce, apply and administer the penal laws.'” Williams, 329 Md. at 8-9, 616 A.2d at 1278 (quotin Bowers, 283 Md. at 121, 389 A.2d 341). To survive analysis, a statute must “eschew arbitrary enforcement in addition to being intelligible to the reasonable person.” Williams, 329 Md. at 9, 616 A.2d at 1279. I Bowers, we determined that, as to this standard, a statute is not unconstitutionally vague

merely because it allows for the exercise of some discretion on the part of law enforcement and judicial officials. It is only where a statute is so broad as to be susceptible to irrational and selective patterns of enforcement that it will be held unconstitutional under this second arm of the vagueness principle.

283 Md. at 122, 389 A.2d at 346; see Eanes, 318 Md. at 464, 569 A.2d at 617.

As a general rule, the application of the void-for-vagueness doctrine is based on the application of the statute to the “facts at hand.”Bowers, 283 Md. at 122, 389 A.2d at 346 (citing United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United states v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); United States v. National Dairy Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963)). Thus, “it will usually be immaterial that the statute is of questionable applicability in foreseeable marginal situations, if a contested provision clearly applies to the conduct of the defendant in a specific case.” Id. (citing United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L. E. 1877 (1947)).

If the challenged statute, however, encroaches upon fundamental constitutional rights, particularly First Amendment guarantees of free speech and assembly, then the statute should be scrutinized for vagueness on its face.[11] Id.;

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Ayers v. State, 335 Md. 602, 624, 645 A.2d 22, 33 (1994), cert. denied, 513 U.S. 1130, 115 S.Ct. 942, 130 L.Ed.2d 886 (1995). Thus, “not only may the two vices of inadequate notice and insufficient adjudicative [or enforcement] guidelines be present, but in addition the indefiniteness of the statute itself may inhibit the exercise of protected freedoms.”Bowers, 283 Md. at 122, 389 A.2d at 346 (citing Winters v. New York, 333 U.S. 507, 509, 68 S.Ct. 665, 92 L.Ed. 840 (1948); National Daily Corp., 372 U.S. at 36, 83 S.Ct. 594, 9 L.Ed.2d 561). Because of the potential “chilling effect” that vagueness can have on First Amendment liberties, permitting a defendant to challenge a statute on its face for vagueness becomes a “rule of standing which allows a defendant to challenge the validity of a statute even though the statute as applied to the defendant is constitutional.”[12] Ayers, 335 Md. at 625, 645 A.2d at 33. As we stated in Bowers:

So considered, the principle is essentially a rule of standing, permitting a defendant to challenge the validity of a statute as applied to marginal cases, even though the acts for which he has been charged may be squarely within the coverage of

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the statute. Once it is determined, however, that a strict specificity standard ought to apply in any given case, the criteria for measuring the validity of a statute under the vagueness doctrine are the same as in a non-First Amendment context: fair warning and adequate guidelines.

Bowers, 283 Md. at 123, 389 A.2d at 346.

Although the Court of Special Appeals has determined that a telephone harassment statute using the words “annoy” and “harass” is not unconstitutionally vague,[13] Caldwell v. State, 26 Md. App. 94, 101-102, 337 A.2d 476, 481 (1975) (addressing the constitutionality of Maryland Code (1957, 1996 Repl. Vol.), Art. 27, § 555A), neither it nor we have addressed previously the potential vagueness of the words “harass,” “annoy,” “alarm,” “without legal purpose,” and “provide information” as used in § 123. Other states, however, have addressed the employment of these words and phrases in harassment and stalking statutes and have come out on either side of the fence, focusing most of their attention on the phrase “intent to annoy.” Cf. M. Katherine Boychuk, Are Stalking Laws Unconstitutionally Vague or Overbroad?, 88 Nw. U.L. Rev. 769, 796-97 (1994) (“Like the stalking laws, many harassment statutes require that the offender intend to alarm, annoy, or harass another person. Courts have treated such laws inconsistently.” (footnotes omitted)). Accordingly, Petitioner urges us to adopt the reasoning used by those states that have found those statutes to be unconstitutionally vague, while Respondent advocates the path taken by the contrarian jurisdictions.

Although ultimately we shall not follow those jurisdictions that have found harassment statutes to be unconstitutionally vague, we briefly identify now the reasons that tip our analysis

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in the other direction and to which reasons we shall return later in our discussion for amplification. In short, even if arguably otherwise deficient, § 123 is salvageable because we shall employ a limiting construction to the statute to ensure that it provides a standard of conduct and indicates whose sensibilities are to be offended. See, e.g., Schochet v. State, 320 Md. 714, 729, 580 A.2d 176, 183 (1990) (stating that “[g]eneral statutes . . ., which, if given their broadest and most encompassing meaning, give rise to constitutional questions, have regularly been the subject of narrowing constructions so as to avoid the constitutional issues” and providing examples of such cases). Moreover, § 123 has inherent limitations. The statute requires a reasonable warning to desist, does not apply to “any peaceable activity intended to express political views or provide information to others,” and mandates that there be no “legal purpose” for the activity. Cf. Boychuk, supra, at 791-92 (contending that providing an exemption of constitutionally protected activity or a court’s assuming that a state legislature did not intend to prohibit any constitutionally protected conduct remedies vagueness problems (citing Richard H. Fallon, Jr., Making Sense of Over breadth, 100 Yale L.J. 853, 862 (1991))). Lastly, § 123 requires specific intent on the part of the offender, which assists in alleviating vagueness difficulties. See, e.g., Williams, 329 Md. at 9, 616 A.2d at 1279.

i. State and Federal Courts: Finding Harassment Statutes Unconstitutionally Vague
Petitioner directs our attention to the Supreme Court of Colorado’s determination in People v. Norman, 703 P.2d 1261 (Colo. 1985), finding a particular harassment statute to be unconstitutionally vague. The harassment statute in question in Norman stated that harassment is committed “`if with intent to harass, annoy, or alarm another person,’ such person `engages in conduct or repeatedly commits acts that alarm o seriously annoy another person and that serve no legitimate purpose.'”Norman, 703 P.2d at 1266 (emphasis added) (quoting Colo. Rev. Stat. § 18-9-11(1)(d) (1978)). The

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Colorado court based its reasoning on one of its earlier opinions, Bolles v. People, 541 P.2d 80 (Colo. 1975), which held that the use of the words “harass” and “annoy” in subsection (1)(e) in the harassment statute was unconstitutionally broad.[14] Norman, 703 P.2d at 1266 (referring to Colo. Rev. Stat. § 18-9-11(1)(e), which stated: “(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he . . . (e) communicates with a person, anonymously or otherwise by telephone, telegraph mail, or any other form of communication, in a manner likely to harass or cause alarm. . . .” (emphasis added)).

The court in Norman found fault with the phraseology of the statute. According to the court, the statute did not define any legislative concern, and the statute covered “any and all conduct, by any person.”Norman, 703 P.2d at 1267. The court continued: “[a]n actor, a clown, a writer or a speaker all might be subject to criminal prosecution because their acts are perceived by some official to annoy or alarm others.”Id. The court concluded that the statute was subject to such generality that it “exceeds the bounds of flexibility constitutionally available to the legislature,” and, more importantly, that subsection (1)(d) “contains no limiting standards to assist citizens, courts, judges or police personnel to define what conduct is prohibited and, conversely, what conduct is permitted.” Id. (emphasis added).

As we shall discuss further, Maryland’s statute, though also employing the words “annoy” and “alarm,” contains limiting language, and we are further willing to read a limiting “reasonable person” standard into the statute. Cf. Boychuk, supra, at 788 (contending that either a judicial
or legislative formulation of an objective standard by which to judge harassment would save the statutes from constitutional demise). Moreover, Petitioner misapplies the Norman case in arguing

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for its application to § 123. The Colorado Supreme Court later emphasized that the phrases “intent to annoy” and “intent to alarm” alone are not unconstitutionally vague, but rather, coupled with restrictive language, other subsections of the same harassment statute withstand constitutional scrutiny. See People v. McBurney, 750 P.2d 916, 919-20 (Colo. 1988) (stating that the previous sections of the predecessor
harassment statute, as in Bolles, were not unconstitutional because of the “mere presence of the words `annoy’ and `alarm,’ but because these words were applied to all forms of communication, which obviously contained no particularized standards to limit the scope of the offense” (citing Bolles, 541 P.2d at 82-83)). The limiting language found significant in McBurney confined the statute only to harassing or obscene telephone calls. Id. (discussing Colo. Rev. Stat. § 18-9-111(1)(e) (1986), which includes that a person commits harassment if, “with intent to harass, annoy, or alarm another person, he . . . [i]nitiates communication with a person, anonymously or otherwise by telephone, in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone which is obscene”).

Petitioner also relies on Kansas v. Bryan, 910 P.2d 212 (Kan. 1996) in which the Supreme Court of Kansas held the Kansas stalking statute to be unconstitutionally vague due to its use of the terms “annoy,” “alarm,” and “harass” and without defining an objective standard.[15] Bryan, 910 P.2d at 217,

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219. According to the court’s construction, the statute in question employed an objective standard in relation to a course of conduct that alarms, annoys, or harasses a person, but not in relation to the “following” of a person that achieves the same effect. Id. The Kansas court concluded that, following the reasoning in Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971),[16] and the lack of an objective standard incorporated in the language of the statute with regard to the act of “following” a person, frames the statute so

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that it is unconstitutionally vague; the finder of fact is left without an objective standard by which to examine, and anyone subject to the law is deprived of an objective standard by which to determine, what the crime of stalking constitutes.[17] Bryan, 910 P.2d at 220-21. It appears that the Kansas court did not consider reading into the statute a reasonable person standard. We easily set apart our statute from that of the Kansas statute. The Maryland statute does not employ the word “reasonable” with some terms, but not others, in the same manner as the Kansas statute[18] and contains further limiting provisions, discusse infra.

Petitioner incorrectly relies on the Fifth Circuit case, Kramer v. Price, 712 F.2d 174 (5th Cir. 1983), vacated, 723 F.2d 1164 (5th Cir. 1984) (per curiam),[19] which actually bolsters the use of

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a judicial gloss of a reasonable person standard to rescue a statute from threatened unconstitutionality. Moreover, the Texas harassment statute, which the decision examines, is worded quite differently from Maryland’s statute, except that both use the words “annoy” and “alarm.”[20] I Kramer, the Fifth Circuit, in a habeas corpus proceeding, affirmed a federal district court’s holding that the Texas harassment statute was unconstitutionally vague on its face after the Texas Court of Criminal Appeals, Kramer v. Texas, 605 S.W.2d 861 (Tex. Cr. App. 1980) (en banc), affirmed Kramer’s conviction under the statute. Kramer, 712 F.2d at 175. Relying on Coates, supra note 16, the Fifth Circuit found the statute unconstitutionally vague because neither the statute nor the court’s construction of it provided a standard of conduct or indicated whose sensibilities must be offended. The court stated: “The Texas courts have made no attempt to construe the terms `annoy’ and `alarm’ in a manner which lessens their inherent vagueness. Of greater importance, the Texas courts have refused to construe the statute to indicate whose sensibilities must be offended.”[21] Kramer, 712 F.2d at 178 (footnotes omitted) (citing Kramer, 605 S.W.2d 861; Collection Consultants, Inc. v. Texas, 556 S.W.2d 787 (Tex. Cr. App. 1977)).

The Fifth Circuit identified as a difficulty that the “Texas court refused to narrow the statute by, for example, holding that it applies to writings which would annoy the

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hypothetical reasonable person and that its standard does not vary with the sensitivity of each complainant.” Kramer, 712 F.2d at 178 n. 6. The court continued that it could not limit the construction of a statute on appeal when an accused is tried and convicted under a broad construction of the statute. Id. (relying upon Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966)). In the present case, we narrow the construction of the statute by application of a reasonable person standard to save it from possible unconstitutional vagueness. Petitioner also notes that in Kramer the Fifth Circuit stated that the intent requirement intent to annoy — does not “save” the statute from vagueness “because the conduct which must be motivated by intent, as well as the standard by which that conduct is to be assessed, remain vague.”Kramer, 712 F.2d at 178. We agree that a specific intent requirement alone does not “save” a statute, but we have declared that it is helpful in “reliev[ing] the statute of the objection that it punishes without warning an offense of which the accused was unaware.” Williams, 329 Md. at 9, 616 A.2d at 1279 (internal quotation marks omitted) (alterations in original) (quoting Screws v. United States, 325 U.S. 91, 101-02, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945) (plurality opinion)). In addition, as discussed infra, neither the conduct motivated by the intent nor the standard applied to Maryland’s statute remains constitutionally vague after applying a narrower construction as we have.

Petitioner also relies on Oregon v. Sanderson, 575 P.2d 1025 (Ct.App. 1978), overruled in part, Oregon v. Schwartz, 21 P.3d 1128, 1134 (Ct.App. 2001), in which the Court of Appeals of Oregon declared that state’s harassment statute unconstitutionally vague. The statute provided that “[a] person commits the crime of harassment if, with intent to harass, annoy or alarm another person, he . . . [e]ngages in a course of conduct that alarms or seriously annoys another person and which serves no legitimate purpose.” Sanderson, 575 P.2d at 1026 (quoting Or. Rev. Stat. § 166.065(1)(d)). The Oregon court had particular difficulty with the phrase “alarms or seriously annoys” because it “gives

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no basis to distinguish between anti-social conduct which was intended to be prohibited and socially tolerable conduct which could not reasonably have been intended to be subject to criminal sanction.”[22] Sanderson, 575 P.2d at 1027. The Sanderson court refused to apply a limiting construction because it decided that such a limiting judicial construction is only possible “if the underlying purpose of the statute is apparent from the statute’s prior judicial interpretation or legislative history,” id., and that, in this instance, the statute was enacted too recently to have acquired a “judicial gloss” and that the “legislative history indicates an intention to create a catchall offense.” Sanderson, 575 P.2d at 1028. We reach the opposite conclusion with regard to § 123 because, although its legislative history does not dictate how the phraseology came about, that history does provide insight into the legislative purpose, whereas the Oregon court determined that its statute’s legislative history intended to enact a catchall provision — “a dragnet provision . . . to reach myriad forms of harassment that cannot be specifically enumerated.” Id. (internal quotation marks omitted) (alteration in original) (citation omitted).

Furthermore, the Court of Appeals of Oregon in Oregon v. Schwartz, 21 P.3d 1128, 1134 (Ct.App. 2001), expressly “repudiated” the quote i Sanderson that the “fundamental flaw of the statute at issue” is that “it gave no basis to distinguish between anti-social conduct which was intended to be prohibited and socially tolerable conduct which could not reasonably have been intended to be subject to criminal action Schwartz, 21 P.3d at 1134 (internal quotation marks

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omitted) (quoting Sanderson, 575 P.2d at 1027). The court reasoned in Schwartz:

[A]n argument that a statute covers too much ground can never, standing alone, support a vagueness challenge. As a matter of logic, the conclusion that a law is insufficiently definite to provide guidance to its potential violators and enforcers simply does not follow from the premise that the statute criminalizes too broad a category of conduct. Secondly, such an argument cannot provide the bases for an overbreadth claim, because “[a] legislature can make a law as `broad’ and inclusive as it chooses unless it reaches into constitutionally protected ground.” . . . The sole limit on a statute’s breadth is constitutionality, not our second-guessing of what the legislature could or could not have deemed “socially tolerable.”

Schwartz, 21 P.3d at 1134 (second alteration in original) (citation omitted).

ii. Maryland’s Harassment Statute Survives Vagueness Analysis
Whether § 123 should be tested for vagueness on its face is immaterial; § 123 survives the void-for-vagueness doctrine whether it is scrutinized using the agreed facts of the present case alone or employing the imagined facts of “marginal cases.” The statute, on its face and as applied to the facts of Galloway’s case, provides fair warning to potential offenders and adequate guidelines to enforcement authorities when the judicial gloss of a reasonable person standard is read into the statute, along with the inherent restrictions in the statute and the requirement of specific intent.

We agree with the reasoning of the Court of Special Appeals in Caldwell v. State, supra, and with those states finding that the terms “annoy,” “alarm,” and “harass” are commonly understood by ordinary people and, as such, provide fair notice to potential offenders and adequate guidance for enforcement. The definition of “annoy” is “to disturb or irritate especially by repeated acts.” Merriam Webster’s Collegiate Dictionary 47 (10th ed. 1993). An alternative definition for

Page 628

annoy is “to harass especially by quick brief attacks.”[23] Id. (emphasis added). The definition of alarm is “to strike with fear.”[24] Id. at 26. The applicable definition of harass is “to annoy persistently.”[25] Id. at 529. These definitions are sufficient to qualify as common and generally accepted meanings; they “comport with everyday understandings of the words they define” and are “as plain to law enforcement

Page 629

officials as to the general public.” Williams, 329 Md. at 11, 616 A.2d at 1280; see also People v. Ewing, 90 Cal.Rptr.2d 177, 183-84 (Ct.App. 1999) (determining that California’s similarly worded statute’s definition of “harasses” “establishes a standard of conduct which is ascertainable by persons of ordinary intelligence” because “[t]he language `conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices'” (quoting United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947))) reh’g denied, 76 Cal.App.4th 1060 (App. 4th Dist. 1999).

We have discussed the intent requirement — “with intent t harass, alarm, or annoy the other person” — and have determined, without difficulty in applying these terms, that certain factual determinations in a protective order provided evidence of intent as required by § 123. We acknowledged that inclusion in the protective order that the defendant “threaten[ed] to harm” the victim provides some evidence of intent which must be proven as an element of § 123 Streater, 352 Md. at 816, 724 A.2d at 119. We further stated that “[t]he battery or assault and battery referred to in the protective order also may have special relevance to the intent element . . . of the harassment . . . charge.” Id.

Other jurisdictions have also determined that the words “alarm” and “annoy” have commonly understood meanings and definiteness.[26] For instance, In Ewing, 90 Cal.Rptr.2d 177, the California appellate court determined

Page 630

that its stalking statute was not unconstitutionally vague. [27] In so doing, the court first analyzed, among others, the terms “alarms” and “annoys” and concluded that these words have “a clear and understandable dictionary definition.” Ewing, 90 Cal.Rptr.2d at 182. The Court of Appeals of Kentucky determined that the use of the words “alarms” and “annoys” to define “stalk” in the Kentucky stalking statute did not render the statute unconstitutionally vague because the statute, taken as a whole, had “sufficient definiteness that ordinary people can determine what conduct is prohibited.” Monhollen v. Kentucky, 947 S.W.2d 61, 26 (Ky. 1997) (emphasis added) (discussing Ken. Rev. Stat. Ann. § 508.130). The Supreme Court of Montana determined that the presence of the word “annoy” in that state’s harassment statute did not cause the statute to be unconstitutionally vague because “annoy” has a “commonly understood meaning” and is readily understood so that “a reasonable person of average intelligence would comprehend . . . [its] meaning.”Montana v. Nye, 943 P.2d 96, 101-02 (Mont. 1997) (discussing Mont. Code Ann. § 45-5-221).

As demonstrated in the above discussion, not all reviewing courts have felt comfortable that there is a common understanding as to the meaning of the words “annoy,” “alarm,” and “harass.” It is often argued, as it was at oral argument in the present case, that these words are broad enough to cover telephone calls from creditors, as well as the actions of a street performer. See, e.g., Norman, 703 P.2d at 1267. Clearly the statute was not intended to cover such actions. See supra pp. 9-10 (discussing the legislative purpose of § 123). Cf. Coates, 402 U.S. at 618, 91 S.Ct. at 1689, 29 L.Ed.2d 214 (White, J., dissenting) (“Any man of average

Page 631

comprehension should know that some kinds of conduct, such as assault or blocking passage on the street, will annoy others and are clearly covered by the `annoying conduct’ standard . . . . It would be frivolous to say that these and many other kinds of conduct are not within the foreseeable reach of the law.”). Section 123 of the Maryland statute, like the California statute, has provisions that sufficiently limit the conduct covered. In addition, we read a reasonable person standard into the statute to narrow further its construction to ensure that § 123 is not applied to such situations as creditor telephone calls and street performances.

Section 123 contains the provision “[a]fter reasonable warning or request to desist by or on behalf of the other person.” (Emphasis added). See supra p. 4. We have held that such a warning ensures that the offender is aware that further conduct will “alarm or seriously annoy” the “other person,” and as such, the offender has fair notice that he or she may be subject to prosecution. Eanes, 318 Md. at 463, 569 A.2d at 617 (citing Bacheller v. State, 3 Md. App. 626, 634-35, 240 A.2d 623, 628 (1967), rev’d on other grounds, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1968); see also United States v. Occhino, 629 F.2d 561, 563 (8th Cir. 1980) (per curiam), cert. denied, 450 U.S. 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 (1981); Pennsylvania v. Weiner, 326 A.2d 896, 898 (Pa.Super.Ct. 1974)). Requiring repeated conduct before a violation occurs has been found by other courts to mitigate against vagueness.[28] See United States v. Smith, 685 A.2d 380, 387 (D.C. 1996) (declaring that the requirement of “repeatedly” in D.C.’s stalking statute helps to “mitigate any potential vagueness problems”), cert. denied, 522 U.S. 856, 118 S.Ct. 152, 139 L.Ed.2d 98 (1997); Johnson v. Indiana, 648 N.E.2d 666, 670

Page 632

(Ind.Ct.App. 1995) (determining that because “the State must prove engagement in a repeated or continuing course of conduct militates against arbitrary enforcement” of Indiana’s stalking statute). In addition to requiring a reasonable warning to desist, § 123(a) also defines “course of conduct” by requiring “a persistent pattern of conduct, composed of a series of acts over a period of time.” Thus, § 123 has two separate provisions requiring repeated acts, helping to buffer against potential vagueness.

Additionally, § 123 has a specific intent requirement — “[w]ith intent to harass, alarm, or annoy the other person.” We repeatedly have determined that such a requirement, while it may not be able alone to save a statute from constitutional infirmity, can help in avoidance of a legally factual conclusion.[29] See, e.g., Williams, 329 Md. at 9, 616 A.2d at 1279; see also Caldwell, 26 Md. App. at 103-04, 337 A.2d at 481-82. A specific intent requirement “can ameliorate vagueness problems” because “[i]f an actor has specific intent to

Page 633

bring about a particular effect, he can be presumed to be on notice that his actions to effect that intent constitute a crime.” Boychuk, supra, at 781; Caldwell, 26 Md. App. at 104, 337 A.2d at 482 (noting that “a person already bent on serious wrongdoing has less need for notice and that a citizen who refrains from acting with morally bad intent is not endangered by the statutory sanction” (internal quotation marks omitted) (citation omitted)). In Caldwell, the Court of Special Appeals explained that “[b]y requiring such specific intent the legislature has sufficiently delineated in a constitutional sense, what is criminal conduct under the statute so that the citizens of Maryland need not engage in a guessing game as to their criminal liability . . . .”Caldwell, 26 Md. App. at 105, 337 A.2d at 483.

The U.S. Supreme Court recognizes that a specific intent requirement aids in ensuring that an accused has fair notice that he or she is violating a criminal statute. In Screws v. United States, the U.S. Supreme Court stated:

The Court, indeed, has recognized that the requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid. The constitutional vice in such a statute is the essential injustice to the accused of placing him on trial for an offense, the nature of which the statute does not define and hence of which it gives no warning. But where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does in violation of law.

325 U.S. at 101-02, 65 S.Ct. at 1035-36, 89 L.Ed. 1495 (citations omitted). More recently, the U.S. Supreme Court determined that the presence of a scienter requirement in a statute “ameliorated” the concern that the statute was unconstitutionally vague because it ensured that “people of ordinary intelligence [have] a reasonable opportunity to understand what conduct . . . [the statute] prohibits.” Hill v. Colorado,

Page 634

530 U.S. 703, 732, 120 S.Ct. 2480, 2498, 147 L.Ed.2d 597 (2000).

Reading a reasonable person standard into § 123 helps to narrow further the construction of the statute, keeping in mind that a statute “does not become unconstitutionally vague merely because it may not be perfectly clear at the margins.” Williams, 329 Md. at 11, 616 A.2d at 1280. In other words, “the vagueness doctrine does not require absolute precision or perfection.” Williams, 329 Md. at 13, 616 A.2d at 1280-81 (citing United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 321, 46 L.Ed.2d 228 (1975)). As noted, “to avoid serious constitutional issues, this Court has repeatedly given a narrow construction to statutes containing broad general language.” Schochet, 320 Md. at 729-31, 580 A.2d at 183-84 (providing as examples such cases as In re James D., 295 Md. 314, 455 A.2d 966 (1983), and Wilson v. Bd. of Sup. of Elections, 273 Md. 296, 328 A.2d 305 (1974)). We have stated “[t]he objective `reasonable’ test is used in many areas of the law as an appropriate determinant of liability and thus a guide to conduct.” Eanes, 318 Md. at 461-62, 569 A.2d at 615-16.

The California appellate court similarly factored in a reasonable person standard in California’s stalking statute to aid in narrowing its construction.[30] Ewing, 90 Cal.Rptr.2d at 182. California demonstrated, using brackets as a visual aid to indicate those words that the court read into the statute, how the statute’s definition of “harass” would read. According to the court, “[t]he statutory definition of `harasses’ becomes `a knowing and willful course of conduct directed at a specific person that [a reasonable person would consider as] seriously

Page 635

alarm[ing], [seriously] annoy[ing], [seriously] torment[ing], or
[seriously] terrorizes, the person’ against whom it is directed.” Id. (alterations in original) (emphasis in original) (quoting Cal. Penal Code § 649.9(e)).

Moreover, unlike Oregon v. Sanderson, discussed supra, in which the Oregon court determined that it would not read in a reasonable person standard because the legislative history indicated an intention to create a catchall offense, the legislative history of § 123 supports a contrary tact.[31] As demonstrated supra in the Summary of Committee Report, the purpose of the harassment statute is “to help law enforcement agencies in their attempts to defuse ongoing feuds and longstanding disputes,” to help “avoid extreme situations,” and to provide relief for victims of harassment who without this statute would be left without a means of legal redress. Summary of Comm. Rep. on H.B. 381, at 1-2; cf supra note

Page 636

26 (discussing the need for flexible harassment statutes to ensure that victims of harassment are provided with proper redress). The Governor’s Task Force on Violence and Extremism supported the enactment of H.B. 381 because it felt that such a statute “may assist the citizens in our State who are victims of harassment based on their racial, religious or ethnic background.” Letter from Constance Ross Beims, Chairperson, Governor’s Task Force on Violence and Extremism, to The Honorable Joseph E. Owens, Chairperson, House Judiciary Committee 3 (27 January 1986) (on file with State Library). It follows that § 123 was in no way intended to cover such situations as repeated phone calls from creditors. Employing a reasonable person standard further ensures that the § 123 is limited to its intended purposes.

The last aspect of Petitioner’s vagueness argument is whether “withou legal purpose” is constitutionally adequate. The courts have come down on either side of the fence regarding the issue of whether “withou legitimate purpose” is unconstitutionally vague. Compare Oregon v. Norris-Romine, 894 P.2d 1221 (Or.Ct.App. 1995) (concluding the phrase “legitimate purpose” was unconstitutionally vague), review denied, 900 P.2d 509 (Or. 1995), with Kansas v. Rucker, 987 P.2d 1080, 1094-95 (Kan. 1999) (finding that the term “legitimate purpose” “when read in conjunction with the rest of the statutory language do[es] not require that a person of common intelligence guess as to their meanings”). We follow the latter line of cases, noting that the word “legal” is more definite and clear than “legitimate.”[32] “Legal” derives

Page 637

from or is found in law, as opposed to “legitimate,” which encompasses that which is legal and beyond. See Merriam Webster’s Collegiate Dictionary 664-65.

As for Petitioner’s argument that the statutory exemption for conduct to “express political views or provide information to others”[33] is unconstitutionally vague, it is unfounded and unsupported. This same language in either a harassment or a stalking statute has not been challenged in any other jurisdiction. The language, however, when looked at in conjunction with the rest of the statute and with the underlying purpose of the statute, has a definite and clear meaning that helps in setting the boundaries for the enforcement of § 123. See Webster v. State, 359 Md. 465, 480, 754 A.2d 1004, 1012 (2000) (stating that if a statute is clouded by ambiguity or obscurity, it is necessary not only to consider the literal and ususal meaning of the words, but their meaning in light of setting, objectives, and purpose of enactment); Gargliano v. State, 334 Md. 428, 436, 639 A.2d 675, 678 (1994) (same); Williams, 329 Md. at 15-16, 616 A.2d at 1282 (We must discern “legislative intent from the entire statutory scheme, as opposed to scrutinizing parts of the statute in isolation.”); see also Randall Book Corp. v. State, 316 Md. 315, 327, 558 A.2d 715, 721 (1989) (“[I]n addition to considering the specific words of the statute, we may consider the general history and prevailing mood of the legislative body with respect to the type of criminal conduct involved.”). It is apparent that this language was included in the statute to help in avoiding application of the statute to such situations as, but not limited to, protected political and religious leafleting, commercial solicitations, and

Page 638

other types of informational leaflets or contacts such as store openings and community action programs. This language is of the same tenor as used by other jurisdictions that have stalking and harassment statutes that contain the phrase, or some variation of, “does not include constitutionally protected activity.” Those jurisdictions have not determined that such a phrase is unconstitutionally vague. See, e.g, Bouters v. Florida, 659 So.2d 235 (Fla. 1995) (holding Florida’s stalking statute, which contained the language “[c]onstitutionally protected activity is not included” in the “course of conduct” definition and constitutional protected activity includes “picketing or other organized protests,” was not impermissibly vague), cert. denied, 516 U.S. 894, 116 S.Ct. 245, 133 L.Ed.2d 171; Johnson, 648 N.E.2d at 668-69 (determining that an Indiana stalking statute specifically excluding constitutionally protected activity such as “lawful picketing pursuant to labor disputes” from its ambit was not unconstitutionally vague); Saunders, 695 A.2d at 722 (finding that a stalking statute, which specifically excluded “constitutionally protected activity” from the definition of “course of conduct” was not unconstitutionally vague). We conclude that the language in the Maryland statute is in no way unclear.

None of the words and phrases under scrutiny in § 123 are unconstitutionally vague. They have a common meaning and understanding known to the person of common or average intelligence. Moreover, employing a reasonable person standard and the inherent specific intent requirement alleviates further potential doubt. Finally, a potential offender does not have to be wary of unanticipated criminal liability because of the condition that there be a reasonable request to desist. In the present case, Javin, her parents, the assistant warden and psychologist at the prison, and Petitioner’s former counsel told Petitioner not to send letters to Javin. Despite these warnings, Petitioner proceeded to send a large volume of additional letters to Javin within a relatively short period of time. The facts of the present case are also congruent with the intended purpose of the statute. As the Court of Special Appeals stated, “[i]t strains credulity to suggest that . . . [Petitioner]

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could not reasonably understand that these letters would alarm or seriously annoy a woman who [was] the victim of his prior crimes of kidnapping and stalking.” Galloway, 130 Md. App. at 96, 744 A.2d at 1073.

B. Overly Broad
Petitioner also is incorrect in arguing that § 123 is unconstitutionally overbroad. The U.S. Supreme Court explained that “[a] clear and precise enactment may nevertheless be `overbroad’ if in its reach it prohibits constitutionally protected conduct.” Grayned, 408 U.S. at 114, 92 S.Ct. at 2302, 33 L.Ed.2d 222 (footnote omitted). The purpose of the over breadth doctrine “is designed to protect First Amendment freedom of expression from laws written so broadly that the fear of punishment might discourage people from taking advantage of that freedom.” Outmezguine v. State, 335 Md. 20, 36, 641 A.2d 870, 878 (1994) (citing Broadrick v. Oklahoma, 413 U.S. 601, 611-13, 93 S.Ct. 2908, 2915-17, 37 L.Ed.2d 830 (1974); Curran v. Price, 334 Md. 149, 167, 638 A.2d 93 (1994)). As we stated in Eanes v. State:

The crucial question . . . is whether the [statute] sweeps within its prohibitions what may not be punished under the First and Fourteenth amendments. The concern is that an overbroad statute may, by that very fact, have a chilling effect on free expression. That is, if a statute is to be struck down as overbroad, it must appear that the statute’s very existence will inhibit free expression. The doctrine is `strong medicine’ and should be applied sparingly. It should not be invoked when a limiting construction can be placed on the statute. Because the over breadth doctrine involves a challenge to the facial validity of a statute, a court should not resort to it unless there is a realistic danger that the statute itself will significantly compromise recognized first amendment protection of parties not before the court.

Eanes, 318 Md. at 464-65, 569 A.2d at 618 (alterations in original) (citations omitted).

The U.S. Supreme Court has applied the over breadth doctrine to a wide spectrum of cases ranging from those

Page 640

statutes that regulate only the spoken word to those that involve “expressive” conduct. Broadrick, 413 U.S. at 613-16, 93 S.Ct. at 2916-18, 37 L.Ed.2d 830. The Court has applied a higher standard — the over breadth must be real, substantial, and judged “in relation to the statute’s plainly legitimate sweep” — to those statutes that involve conduct and not merely speech:

[T]he plain import of our cases is, at the very least, that facial over breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from `pure speech’ toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.

Broadrick, 413 U.S. at 615-16, 93 S.Ct. at 2917-18, 37 L.Ed.2d 830.

Explained in another way :

[P]articularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.

Broadrick, 413 U.S. at 16, 93 S.Ct. at 2918, 37 L.Ed.2d 830. In contrast, when it comes to statutes that regulate only speech,[34] the Court has decided “that the possible harm to

Page 641

society in permitting some unprotected speech to go unpublished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.” Broadrick, 413 U.S. at 612, 93 S.Ct. at 2916, 37 L.Ed.2d 830.

As with the vagueness challenge, the courts of our companion states have divided in their views regarding their respective statutes dealing with harassment as unconstitutionally overbroad or not. We conclude that the reasoning of those states that have determined that their similar harassment statutes do not transgress the confines of the over breadth doctrine are more persuasive, taking into account the mandates of the doctrine and the language of § 123. In following these states, we further determine that § 123 sanctions conduct that is within the state’s power to prohibit and that any overbreadth that the statute arguably may be subject to is not substantial in relation to that conduct which § 123 is meant legitimately to prohibit (or protect).

Many states have concluded that their harassment statutes are not overbroad because of their statutory requirements for purposeful conduct, such as in the present case, requiring an “intent to harass, alarm, or annoy the other person.” In Connecticut v. Snyder, 717 A.2d 240
(Conn. App. Ct. 1998) the Appellate Court of Connecticut concluded that that state’s harassment statute was not unconstitutionally overbroad as it applied to conduct. The statute states that a person is guilty of harassment when “with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network . . ., or by any other form of written communication, in a manner likely to cause annoyance or alarm . . . .” Snyder,

Page 642

717 A.2d at 241 (second alteration in original) (quoting Conn. Gen. Stat. § 53a-183(a)(2)). Relying upon Connecticut v. Anonymous, 389 A.2d 1270 (Conn.Super.Ct. 1978), the Connecticut court stated:

The over breadth principle is not violated by the unrestricted scope of the messages which the statute may ban because it is the manner and means employed to communicate them which is the subject of the prohibition rather than their content. The statute is not flawed because a recital on the telephone of the most sublime prayer with the intention and effect of harassing the listener would fall within its ban as readily as the most scurrilous epithet. The prohibition is against purposeful harassment by means of a device readily susceptible to abuse as a constant trespasser upon our privacy.

Snyder, 717 A.2d at 243-44 (internal quotation marks omitted) (quotin Anonymous, 389 A.2d 1270). The Snyder court further acknowledged thusly with respect to mailings, such as in the present case:

Since the statute proscribes conduct, rather than content of the mailings, the risk that the statute will chill people from the exercise of free speech is minor compared with the unfortunately prevalent misuse of the postal system to harass others and invade their privacy. Thus, because this statute prohibits intentional harassment by means of the mail and does not seek to regulate the content of such mailings, we hold that first amendment freedoms are not involved and the statute is not unconstitutionally overbroad.

Snyder, 717 A.2d at 244.

Similarly, in People v. Taravella, 350 N.W.2d 780 (Mich.Ct.App. 1984), the Court of Appeals of Michigan determined that Michigan’s telephone harassment statute prohibited conduct rather than pure speech and, as such, was not unconstitutionally overbroad. The Michigan court stated:

Do telephone calls by an angry parent to a student with failing grades, by a dissatisfied consumer or by a disgruntled constituent, if accompanied by language thought to be

Page 643

`offensive’ by the recipient of the call, subject the caller to criminal sanctions under the statute? In each case, defendant claims, the caller’s exercise of his constitutional right of free speech might `annoy,’ `frighten’ or be considered `obscene’ or `harassing’ by the listener. Thus, under defendant’s interpretation of the statute, if is the listener’s perception or characterization of the nature of the call which would control. We disagree. The statute clearly provides that the focus is on the caller; it is the malicious intent with which the transmission is made that establishes the criminality of the conduct.

Taravella, 350 N.W.2d at 784 (emphasis added).

On the same note,[35] in Idaho v. Richards, 896 P.2d 357 (Idaho Ct. App. 1995), the Court of Appeals of Idaho determined that a harassment statute is not overly broad because the statute prohibited “only telephone contacts made with a specific and exclusive intent to `annoy, terrify, threaten, intimidate, harass or offend,'” which is not protected speech but conduct, and the statute did not proscribe telephone calls made “with a legitimate intent to communicate.” Richards, 896 P.2d at 362 (emphasis added). The court, quoting from the U.S. Court of Appeals for the Fourth Circuit, stated:

The government has a strong and legitimate interest in preventing the harassment of individuals. . . . `Prohibiting harassment is not prohibiting speech, because harassment is not a protected speech. Harassment is not communication, although it may take the form of speech. The statute

Page 644

prohibits only telephone calls made with the intent to harass. Phone calls made with the intent to communicate are not prohibited. Harassment in this case, thus is not protected merely because it is accomplished using a telephone.’[36]

Id. (quoting Thorne v. Bailey, 846 F.2d 241, 242 (4th Cir. 1988) (quotin West Virginia v. Thorne, 333 S.E.2d 817, 819 (W.Va. 1985), cert denied, 474 U.S. 996, 106 S.Ct. 413, 88 L.Ed.2d 363 (1985))); see also Champagne v. Gintick, 871 F. Supp. 1527 (D.Conn. 1994) (“[T]he Supreme Court has held that `violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact . . . are entitled to no constitutional protection.'” (alteration in original) (quoting Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503, 513, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984))). In the present case, conduct that otherwise qualifies as unlawful harassment is not protected merely because it came to Javin’s or her parents’ home in the form of letters delivered through the United States Postal Service.

Furthermore, § 123 expressly eliminates constitutionally protected speech from its ambit. Section 123 “does not apply to any peaceable activity intended to express political views or provide information to others” and the conduct to be prohibited must have no “legal purpose.” Other states have concluded that similar restrictive language helps to abate any over breadth. Cf. Boychuk, supra, at 788 (suggesting that employing language in stalking and harassment statutes that “specifically except[s] protected activities from the scope of the

Page 645

statute” would aid in ensuring that such statutes do not “infring[e] on legitimate activities”). In People v. Shack, 658 N.E.2d 706 (N.Y. 1995), the New York Court of Appeals determined that the New York harassment statute’s limiting clause “`without legitimate purpose of communication’ . . . expressly excludes constitutionally protected speech from its reach [and] plainly distinguishes this statute from those which impose criminal liability for `pure speech.'” Schack, 685 N.E.2d at 710. The court concluded that because of the restrictive clause the defendant could not rely successfully on the First Amendment to support a challenge to its facial validity, id., and it is this limitation that distinguishes the statute from those harassment statutes that have been declared unconstitutionally broad. Schack, 685 N.E.2d at 711 (citing People v. Klick, 362 N.E.2d 329 (Ill. 1977)).

In McKillop v. Alaska, 857 P.2d 358 (Alaska Ct. App. 1993), the Court of Appeals of Alaska also determined that a harassment statute was not unconstitutionally overbroad. The court noted that the harassment statute had the potential, in addition to prohibiting conduct, “to punish political speech or other legitimate communication upon proof that one of the speaker’s subsidiary motives was to annoy the listener.” McKillop, 857 P.2d at 365. The court further stated: “We agree that a person engaging in advocacy or criticism may legitimately intend to annoy or disturb his or her listeners. Nevertheless, `the right of every person to be left alone must be [weighed] in the scales [against] the right of others to communicate.'” McKillop, 857 P.2d at 364 (alterations in original) (quoting Rowan v. United States Post Office Dept., 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970)).[37] To avoid an

Page 646

overbroad construction, the court interpreted the statute “to prohibit telephone calls only when the call has no legitimate communicative purpose, when the caller’s speech is devoid of any substantive information and the caller’s sole intention is to annoy or harass the recipient.”Id. (emphasis added).

On the same note and most recently, the Supreme Court of Kansas, i Kansas v. Whitesell, 13 P.3d 887 (2000), determined that a stalking statute, worded similarly to § 123, was not unconstitutionally overbroad.[38] The court reasoned:

A criminal statute should not infringe upon the First Amendment. The First Amendment, however, is not an impenetrable shield which protects any speech or conduct, whatsoever, with disregard to its harm and effect. Despite our First Amendment rights, we are not free to harm others under the guise of free speech. “As speech strays further from the values of persuasion, dialogue and free exchange of

Page 647

ideas, and moves toward willful threats to perform illegal acts, the State has greater latitude to regulate expression.” People v. Borrelli, 91 Cal.Rptr.2d 851 (2000)(referring to Shackelford v. Shirley, 948 F.2d 935, 938 (5 Cir. 1991)). “Application of the overbreadth doctrine . . . is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort.” Broadrick, 413 U.S. at 613. Concerning stalking laws, there must be a balance that is struck between our constitutional right to free speech and our personal right to be left alone.

Whitesell, 13 P.3d at 900-01.

The Kansas court then favorably repeated the following quote:

“Many crimes can consist solely of spoken words, such as soliciting a bribe . . . or making a terrorist threat. . . . The state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside of the scope of the First Amendment protection. . . . In this context, the goal of the First Amendment is to protect expression that engages in some fashion public dialogue, that is `communication in which the participants seek to or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one’s beliefs. . . . A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of the spoken words.”

Whitesell, 13 P.3d at 901 (alterations in original) (quoting Borrelli, 77 Cal.App.4th at 714 (quoting Roberts, 468 U.S. at 628, 104 S.Ct. 3244, 82 L.Ed.2d 462; Aguilar v. Avis Rent a Car System, Inc., 980 P.2d 846
(1999))); see also Parker v. Commonwealth of Virginia, 485 S.E.2d 150
(1997).

Petitioner cites other out-of-state cases in which a statute was deemed to be unconstitutionally vague despite an intent

Page 648

requirement. These cases, however, do not discuss statutes with the restrictive language of § 123 — “does not apply to any peaceable activity intended to express political view or provide information to others” — and are worded quite differently from § 123. For instance, in Bolles v. People, the Supreme Court of Colorado found that the Colorado harassment statute was unconstitutionally overbroad because the dictionary definitions of “intent to alarm” and “annoy,” as used in the statute, would render criminal such acts as forecasting a storm and warning against illnesses Bolles, 541 P.2d at 81. The court concluded that even reading in restrictive language such as “no legitimate purpose” would not save the statute from being overbroad, but instead would inject vagueness into the statute. Id. As discussed, supra, § 123 does not contain the language “legitimate purpose” but employs instead “legal purpose,” which is more restrictive, in addition to the restriction that § 123 does not apply to “peaceable activity intended to express political views or provide information to others.” We conclude that other out-of-state cases, on which Petitioner relies, are distinguishable from the present case.[39]

III. Sufficiency of the Evidence
Petitioner contends that the evidence presented in the agreed statement of facts in the present case was insufficient

Page 649

to prove beyond a reasonable doubt that Petitioner was guilty of violating § 123. We disagree. We have declared that upon appellate review the “applicable standard is whether after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bloodsworth v. State, 307 Md. 164, 167, 512 A.2d 1056, 1057 (1986); see State v. Sowell, 353 Md. 713, 726, 728 A.2d 712, 719 (1999).

Our concern, therefore, is not whether the verdict was in accord with the weight of the evidence but rather, whether there was sufficient evidence produced at trial “that either showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.”

Sowell, 353 Md. at 726. 728 A.2d at 719 (quoting State v. Stanley, 351 Md. 733, 750, 720 A.2d 323, 331 (1998); State v. Albrecht, 336 Md. 475, 479, 649 A.2d 336, 337 (1994)).

Applying this standard, we conclude that there was sufficient evidence to support Petitioner’s conviction of harassment. Petitioner sent Javin 122 letters to her place of residence between 11 April 1997 and 11 March 1998. He also sent an additional 11 letters to Javin at her parent’s residence during this period. Javin had a specific reason to fear Petitioner due to the fact that at the time that he sent the letters, he was serving a finite prison term, 12 years, for previously stalking and kidnapping Javin. Petitioner also was ordered, as part of his earlier sentence, to have no contact with Javin. Moreover, it was stipulated that Javin’s testimony would be that, because of the letters, she feared that Petitioner would kill her when he was released from prison, which she believed would be in April 1999. Additionally, Javin, her parents, Petitioner’s former attorney, and the assistant warden and the correctional psychologist at the prison, had requested, both before and after 17 April 1997, that Petitioner not send letters to Javin.

Page 650

Petitioner maintains that the letters were part of “a peaceable activity intended to express political views or provide information to others” and that they had a “legal purpose” so that § 123 did not apply to his conduct. According to Petitioner, the “letters were basicall intended to provide religious information to Javin, to express concern for her religious future and to convince Javin of Petitioner’s love for her.” (Emphasis added). After the initial few letters, however, Galloway was warned multiple times that Javin did not wish to receive communications from him. Those instructions notwithstanding, he continued his course by sending a large number of additional letters. From this, a reasonable fact-finder reasonably could conclude that Galloway’s intent was, in fact, to harass Javin, rather than merely to engage in a peaceable activity, with a legal purpose. We have stated that “the determination of an accused’s intention is, in the first instance, for the trial judge, when sitting without a jury, and this determination will not be disturbed on appeal unless clearly erroneous.” State v. Raines, 326 Md. 582, 590, 606 A.2d 265, 268 (1992) (citing Taylor v. State, 328 Md. 424, 433, 209 A.2d 595, 600 (1965)), cert. denied, 506 U.S. 945, 113 S.Ct. 390, 121 L.Ed.2d 299 (1992). Furthermore, “since intent is subjective and, without the cooperation of the accused, cannot be directly and objectively proven, its presence must be shown by established facts which permit a proper inference of its existence.”Raines, 326 Md. at 591, 606 A.2d at 268 (internal quotation marks omitted) (quoting State v. Earp, 319 Md. 156, 157, 571 A.2d 1227, 1233 (1990)).

The evidence in the record supports the trial court’s explicit and implicit conclusions that the letters were meant beyond a reasonable doubt, (1) to harass, alarm, or annoy Javin and (2) necessarily were not intended as the dissemination of mere religious instruction. See supra
note 3. It was not necessary, as Petitioner contends, that the trial judge specifically discuss whether the exceptions of “peaceable activity” and “legal purpose” applied to the present case. It was enough that the trial judge found that the harassment elements of the statute had been satisfied. Taking into account the plethora of letters,

Page 651

Petitioner’s prior convictions of stalking and kidnapping Javin, and the numerous requests for Petitioner to stop sending the letters, the trial judge could find, as Javin herself did, that the frequent references in the letters to Petitioner being “Moses and the enforcer of the law and God’s and Jesus’s ambassador” meant that Petitioner intended to kill her so that they could be together again, but in a non-corporeal way. Although the threat may not have been explicit, and even considering that some of the letters began with such statements as “[n]othing in this letter is meant to be a threat,” a threat reasonably may be inferred considering all of the circumstances presented and the other language in the letters. See supra note 3. As the Court of Special Appeals stated, “[a] person of common intelligence would have no trouble understanding that frequent written communication by a convicted felon to the home of a person whom he previously kidnapped and stalked, will seriously annoy or alarm the recipient.” Galloway, 130 Md. App. at 100, 744 A.2d at 1076. Analogously, as noted above, we have acknowledged previously that the commission of a “battery or assault and battery referred to in the protective order . . . may have special relevance to the intent” element of § 123. Streater, 352 Md. at 816, 724 A.2d at 119.

Furthermore, sufficient evidence supported the conclusion that the act of writing and mailing the letters was malicious and was not, as Petitioner argues, merely a minimal intrusion that Javin could have avoided by throwing out the letters, unopened, that came from Petitioner or bore his return address at MCTC. It is true that Javin, after receiving and reading a few of the letters, could have stopped reading them; however, the sheer volume of letters received from the known source and the pre-existing circumstances that created the background context surrounding the letters from that source are enough to support a finding of malice and more than a minimal intrusion. The mere sending and receipt of that volume of letters, coming after the warnings to Galloway, even had Javin not opened them, supported a reasonable inference

Page 652

of Galloway’s unlawful intent and the adverse effects on the victim.

We conclude that there was sufficient evidence to find Petitioner’s sending of the letters was a malicious engagement in a course of conduct that alarmed or seriously annoyed Javin (or a reasonable person in the same circumstances) and that Petitioner engaged in this course of conduct with the intent to harass, alarm, or annoy Javin. Petitioner received several reasonable warnings and requests to desist such conduct. It also is evident from the record that Petitioner acted without a legal purpose.

JUDGMENT AFFIRMED, WITH COSTS

Eldridge, J., dissenting.

The majority interprets “course of conduct” proscribed by Maryland Code (1957, 1996 Repl Vol., 2000 Supp.), Art. 27, § 123, as encompassing the repeated sending of communications, i.e., first class mail containing religious views, expressions of feelings, and apologies for past conduct. The majority also interprets § 123 to authorize criminal punishment for that course of conduct where the sender of the communications had been requested to stop sending them, and where the recipient of the communications was seriously annoyed or alarmed by them. The majority further holds, without any explanations, that such conduct is “[w]ithout a legal purpose” within the meaning of § 123(c)(3) and is not encompassed by the “provid[ing] of information” exception in § 123(b).

In my view, Art. 27, § 123, as interpreted by the Court today, is unconstitutionally overbroad and vague in violation of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and Articles 24, 36, and 40 of the Maryland Declaration of Rights.[40]
Although the majority purports

Page 653

to place a “judicial gloss” on § 123 (slip opinion at 6) and to “employ a limiting construction to the statute” (id. at 17), the

Page 654

result of the majority’s efforts, in my opinion, is that the statute now suffers more from overbreadth and vagueness than the literal language crafted by the General Assembly.

I.
Before discussing in detail the unconstitutional overbreadth and vagueness of § 123 as interpreted by the majority, it would be useful to discuss some of the general principles applicable to this case and to clarify what is before the Court.

A.
In its initial discussion of § 123’s constitutionality, the majority relies upon the principles that a statute is presumed valid and that the “party attacking the statute has the burden of establishing its unconstitutionality.” (Slip opinion at 7-8). While these principles are generally applicable in resolving constitutional challenges, nevertheless, when a statute or other government action interferes with speech or other freedoms protected by the First Amendment and Articles 36 and 40 of the Maryland Declaration of Rights, the statute or other government action is subject to scrutiny and must be justified by a showing of sufficient governmental interest. Although the level of scrutiny and the type of governmental interest may vary depending upon the nature of the interference with speech or other protected activity, “the burden is on the government to show the existence of such interest.”Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547, 559 (1976), and cases there cited.

Even in Eanes v. State, 318 Md. 436, 446, 569 A.2d 604, 609, cert. denied, 496 U.S. 938, 110 S.Ct. 3218, 110 L.Ed.2d 665 (1990), an aberrant decision relied upon by the majority today, this Court acknowledged:

“The fundamental importance of free speech in our constitutional scheme requires, however, that restrictions on its exercise be subjected to searching scrutiny.”

See, e.g., Denver Area Educ. Telecom Consortium v. F.C.C., 518 U.S. 727, 766, 116 S.Ct. 2374, 2397, 135 L.Ed.2d 888, 917

Page 655

(1996) (“the Government cannot sustain its burden of showing that § 10(c) [authorizing cable television operators to prevent the transmission of `patently offensive’ programming on public access channels] is necessary to protect children or that it is appropriately tailored to secure that end”); Rubin v. Coors Brewing Co., 514 U.S. 476, 487, 115 S.Ct. 1585, 1592, 131 L.Ed.2d 532, 541 (1995) (“the Government carries the burden of showing that the challenged regulation [of speech] advances the Government’s interest `in a direct and material way'”); U.S. v. National Treasury Employees Union, 513 U.S. 454, 468, 115 S.Ct. 1003, 1014, 130 L.Ed.2d 964, 980 (1995) (the Court discussed the different degrees of “the Government’s burden” depending on the nature of the statutory restriction upon speech); Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 661-662, 664, 114 S.Ct. 2445, 2469, 2470, 129 L.Ed.2d 497, 530 (1994) (content-based regulations of speech require “application of the most exacting level of First Amendment scrutiny” whereas “the intermediate level of scrutiny [is] applicable to content-neutral restrictions that impose an incidental burden on speech,” although even with respect to the latter restrictions the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate those harms in a direct and material way”); Widmar v. Vincent, 454 U.S. 263, 269-270, 102 S.Ct. 269, 274, 70 L.Ed.2d 440, 447-448 (1981) (“In order to justify discriminatory exclusion from a public forum based on the religious content of” speech, the state “must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end”); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 71, 101 S.Ct. 2176, 2184, 68 L.Ed.2d 671, 682 (1981) (“Because the ordinance challenged in this case significantly limits communicative activity . . ., we must scrutinize both the interests advanced by the [governmental entity] to justify this limitation on protected expression and the means chosen to further those interests”) First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707, 724 (1978) (the challenged statute must “survive the exacting scrutiny necessitated by a

Page 656

state-imposed restriction of freedom of speech . . . . `[T]he State may prevail only upon showing a subordinating interest which is compelling . . . and the burden is on the Government to show the existence of such an interest'”); Jakanna v. Montgomery County, 344 Md. 584, 608, 689 A.2d 65, 76 (1997) (“the burden of proof rests on the County to prove that [the ordinance restricting speech] directly advances a substantial government interest and is not any more extensive than necessary to achieve that interest”).

Consequently, the majority errs in placing the entire burden of establishing unconstitutionality upon the petitioner Galloway. Furthermore, the majority’s reliance on its conclusion, that “§ 123 regulates unprotected conduct” (slip opinion at 8 n. 9), to justify placing the burden on the petitioner, is somewhat circular.

B.
Although the majority purports to treat separately the issues of overbreadth under the First Amendment and vagueness under due process requirements, the majority does seem to acknowledge the interaction between the two constitutional principles when a statute is challenged on both overbreadth and vagueness grounds. The Supreme Court thus explained in Smith v. Goguen, 415 U.S. 566, 572-573, 94 S.Ct. 1242, 1246-1247, 39 L.Ed.2d 605, 611-612 (1974) (emphasis added, footnotes omitted):

“We agree with the holdings of the District Court and the Court of Appeals on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here. The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement. Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine

Page 657

demands a greater degree of specificity than in other contexts.”

See also, e.g.,Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051, 111 S.Ct. 2720, 2732, 115 L.Ed.2d 888, 908 (1991) (“The prohibition against vague regulations of speech is based in part on the need to eliminate the impermissible risk of discriminatory enforcement. . . . The question is not whether discriminatory enforcement occurred here, and we assume it did not, but whether the [enactment] is so imprecise that discriminatory enforcement is a real possibility”); Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 682, 88 S.Ct. 1298, 1302, 20 L.Ed.2d 225, 231 (1968) (where statutory standards, challenged “as unconstitutionally vague,” are applied to activity “protected by the First Amendment, . . . we start with the premise that `[p]recision of regulation must be the touchstone'”); NAACP v. Button, 371 U.S. 415, 432, 433, 83 S.Ct. 328, 337, 338, 9 L.Ed.2d 405, 417-418 (1963) (“[S]tandards of permissible statutory vagueness are strict in the area of free expression. * * * Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity”).

Moreover, the majority correctly states that when a “challenged statute . . . encroaches upon fundamental constitutional rights, particularly First Amendment guarantees of free speech and assembly, then the statute should be scrutinized for vagueness on its face” (slip opinion at 14), and that “[b]ecause of the potential `chilling effect’ that vagueness can have on First Amendment liberties,” a defendant is permitted “`to challenge the validity of a statute even though the statute as applied to the defendant is constitutional.'” (Id. at 14-15, quoting Ayers v. State, 335 Md. 602, 625, 645 A.2d 22, 33 (1994), cert. denied, 513 U.S. 1130, 115 S.Ct. 942, 130 L.Ed.2d 886 (1995)). See also, e.g., Los Angeles Police Dept. v. United Rep. Pub., 528 U.S. 32, 38, 120 S.Ct. 483, 488, 145 L.Ed.2d 451, 459 (1999) (“`At least when statutes regulate or proscribe speech . . . the transcendent value to all society of constitutionally protected expression is deemed to justify “allowing attacks on overly broad statutes with no requirement that the

Page 658

person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,”‘” quoting Gooding v. Wilson, 405 U.S. 518, 520-521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408, 413 (1972), quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22, 28 (1965)); Schad v. Borough of Mount Ephraim, supra, 452 U.S. at 66, 101 S.Ct. at 2181, 68 L.Ed.2d at 679 (“Because appellants’ claims are rooted in the First Amendment, they are entitled to rely on the impact of the ordinance on the expressive activities of others as well as their own. `Because overbroad laws, like vague ones, deter privileged activit[ies], our cases firmly establish appellant’s standing to raise an overbreadth challenge.’ Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972)”); Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 966-967, 104 S.Ct. 2839, 2852, 81 L.Ed.2d 786, 802 (1984), affirmin Joseph H. Munson Co. v. Sec. of State, 294 Md. 160, 448 A.2d 935 (1982).

C.
It is important to clarify just what is and what is not before the Court in the present case. George Galloway and Kimberly Javin had formerly lived together, and later Javin terminated the relationship. Thereafter, in 1995 Galloway was convicted of stalking and kidnapping Javin and was sentenced to prison for 12 years with all but seven years suspended. He was to be on probation for the suspended portion and was directed, as a condition of probation, to have no contact with Javin. Nevertheless, the case at bar is not a prosecution based on Galloway’s 1994 and 1995 conduct and is not a proceeding based upon an alleged violation of probation. Although the majority indicates that the trial judge’s “conclusions” in the present case properly took “into account . . . Petitioner’s prior convictions” and “the pre-existing circumstances” (slip opinion at 55, 56), the majority does not suggest that Art. 27, § 123, is limited to circumstances where there was prior criminal involvement with the victim. Furthermore, nothing in the statutory language would support such a limitation.

Page 659

Persons who have never previously been convicted of any criminal offense are equally subject to § 123. In addition, the majority appears to rely on the 1995 convictions only as evidence that Galloway in 1997 and 1998 had the “intent to harass, alarm, or annoy” Javin. While this inference may be debatable, it clearly has no bearing upon the vagueness or overbreadth of the statutory language or whether other statutory requirements were met. [41]

This case is also not concerned with the restrictions upon First Amendment or other constitutional rights which may legitimately be imposed upon inmates of a correctional institution because of security or other “needs and exigencies of the institutional environment,” Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935, 950 (1974). Thus, regulations placing certain types of restrictions upon mail which an inmate may send from the institution to someone on the outside, or upon mail which an inmate may receive from someone on the outside, may be valid. See, e.g., Bell v. Wolfish, 441 U.S. 520, 548-555, 99 S.Ct. 1861, 1879-1882, 60 L.Ed.2d 447, 474-479 (1979) Secretary v. Allen, 286 Md. 133, 137-141, 406 A.2d 104, 106-109 (1979) Thomas v. State, 285 Md. 458, 462-469, 404 A.2d 257, 260-263 (1979). Again, § 123 is not limited to inmates of an institution, and the majority does not suggest otherwise. Section 123 applies to persons who are not, and have never been, in a correctional institution or place of detention. The only relevance of Galloway’s inmate status may be to the statutory requirement in § 123(c)(3) that the proscribed conduct be “[w]ithout a legal purpose.” Maryland correctional institutions, pursuant to regulations, can censor mail sent by inmates to persons outside of the institutions. See COMAR 12.02.20.02 et seq. See also

Page 660

Thomas v. State, supra, 285 Md. 458, 404 A.2d 257. The letters sent by Galloway to Javin were permitted by the institutional authorities.

Furthermore, unlike Rowan v. United States Post Office Department, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), relied on by the majority, the case at bar does not involve a clearly and narrowly written statute authorizing a carrier (e.g., the Post Office Department) to refrain from delivering advertisements to recipients who have notified the carrier that they do not wish to receive them, and which is enforceable by a civil remedy. Instead, this is a criminal prosecution, under a vague statute, of one who has repeatedly sent first class mail, expressing feelings, religious views, and apologies, to a person who did not wish to receive such mail.[42]

Finally, while the majority refers to the principle that the trial judge’s findings of fact “`will not be disturbed on appeal unless clearly erroneous'” (slip opinion at 54), it should be emphasized that there was no dispute about the basic or historical facts in this case. The case was tried entirely on a written agreed statement of facts which the prosecuting attorney read into the record, plus one additional fact agreed to by the prosecuting attorney and defense counsel, and 13 of the letters which were submitted to the trial court as “sample[s].”

In addition, contrary to the statement in the majority opinion, the trial judge made no finding that the letters “were not intended as the dissemination of mere religious instruction.” (Slip opinion at 55). In rendering his verdict, the trial judge expressly made only one finding of fact, namely that “the intent of the defendant’s letters was clearly to annoy or to harass.”[43] No finding was made concerning the exception

Page 661

in § 123(b) for “peaceable activity intended to . . . provide information to others.” At the time the verdict was rendered, no finding was made relating to the element of the offense in § 123(c)(3) that the conduct be “[w]ithout a legal purpose.” No finding was made that the letters themselves contained threats. And, in this connection, Ms. Javin’s statement to the trial court indicated that the grounds for her fears were primarily the events in 1994 and 1995 rather than the letters. She stated:

Page 662

“MS. JAVIN: Going in the car down that dirt road he told me that he was going to kill me and bury my body with a piece of machinery that was on the side of the road. All during that time he threatened to kill me.
“So I have real fear and reason to believe that when he gets out, he will follow through with what he had said he was going to do. He is clever enough not to write it down in his letters so that he can follow through with his plan for sure.”
* * *
“I have spoken to people at the prison to try to get them to stop him from writing letters. But even if he stopped writing the letters, I still am fearful for when he gets out what he is going to do. I just don’t know how I am going to be protected.”

Furthermore, in assessing the facts in a case such as this, we must heed the Supreme Court’s admonition that “in cases raising First Amendment issues . . . an appellate court has an obligation to `make an independent examination of the whole record’ in order to make sure that `the judgment does not constitute a forbidden intrusion on the field of free expression.'” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502, 515 (1984), quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-286, 84 S.Ct. 710, 728-729, 11 L.Ed.2d 686 (1964). See also, e.g., Gentile v. State Bar of Nevada, supra, 501 U.S. at 1038, 111 S.Ct. at 2726, 115 L.Ed.2d at 900 (“Full deference to these factual findings does not justify abdication of our responsibility to determine whether petitioner’s statements can be punished consistent with First Amendment standards”); Bachellar v. Maryland, 397 U.S. 564, 566, 90 S.Ct. 1312, 1313, 25 L.Ed.2d 570, 573 (1970) (“Since petitioners argue that their conduct was constitutionally protected, we have examined the record for ourselves. When `a claim of constitutionally protected right is involved, it “remains our duty * * * to make an independent examination of the whole record.”‘ Cox v. Louisiana (I),

Page 663

379 U.S. 536, 545 n. 8, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965)”).[44]

D.
The majority relies upon the recitation in § 123(b) that the statute “does not apply to any peaceable activity intended to express political views or provide information to others.” The majority states that this exception, which “`expressly excludes constitutionally protected speech from its reach,'”[45] distinguishes § 123 from other harassment statutes which have been held unconstitutional. (Slip opinion at 48).

As this Court has pointed out, however, a recitation in a statute that the statute does not apply so as to impair constitutional rights does not affect the resolution of the underlying constitutional issues; it simply equates the constitutional issues with the statutory interpretation issues. For example, in Washington Nat’l Arena v. Pr. Geo’s Co., 287 Md. 38, 44, 410 A.2d 1060, 1064, cert. denied, 449 U.S. 834, 101 S.Ct. 106, 66 L.Ed.2d 40 (1980), involving the constitutionality of a retroactive statute which contained a similar disclaimer that the statute did not apply so as to impair constitutional rights, this Court stated:

“The issue in this case could be viewed either as one of statutory interpretation or as a matter of constitutionality. It makes no practical difference whichever way it is viewed. The Legislature, in Ch. 129 of the Acts of 1976, expressly stated its intention that the statute should not apply `whenever constitutionally protected rights would be impaired.’ Consequently, from a technical viewpoint, if the retroactive application of the 1976 tax statute to the recordation of written instruments at various times between September 1968 and 1976 would impair taxpayers’ constitutional rights,

Page 664

then, as a matter of legislative intent, the statute does not apply. However, in order to determine the application of Ch. 129 on this statutory interpretation ground, it is obviously necessary to resolve the constitutional question.”

See also Turner Broadcasting System, Inc. v. F.C.C., supra, 512 U.S. at 642-643, 114 S.Ct. at 2459, 129 L.Ed.2d at 518 (“Nor will the mere assertion of a content-neutral purpose be enough to save a law which” is not content-neutral).

E.
The “[p]rohibited conduct” under Art. 27, § 123(c), requires for a violation, inter alia, that the defendant’s course of conduct be “[w]ith intent to harass, alarm, or annoy the other person . . . .” § 123(c)(1). The majority states that, instead of an intent to harass, alarm, or annoy “the other person,” a “reasonable person standard should be read into the language of subsection (c)(1) of § 123, and with that judicial gloss, § 123 survives constitutional scrutiny.” (Slip opinion at 6-7). Thus, in lieu of “the other person,” the object of the intent set forth in subsection (c)(1) becomes “a reasonable person.”

This Court, however, has generally declined to re-write or insert words into statutory language in order to save the constitutionality of statutes. Just this year, in Montrose Christian School v. Walsh, 363 Md. 565, 594-596, 770 A.2d 111, 128-129 (2001), we refused to construe the word “purely” in a statute as “primarily” or “some” in order to uphold the statute under the First Amendment and Article 36 of the Maryland Declaration of Rights. Instead, we held the statute unconstitutional, pointing out that a substitution of saving language “`would be to re-draft the statute under the guise of construction,'”Montrose Christian School v. Walsh, supra, 363 Md. at 595, 770 A.2d at 129, quoting Davis v. State, 294 Md. 370, 378, 451 A.2d 107, 111 (1982) See Interstate Circuit, Inc. v. City of Dallas, supra, 390 U.S. at 690, 88 S.Ct. at 1306, 20 L.Ed.2d at 235 (“It is not our province to draft legislation”).

In Wheeler v. State, 281 Md. 593, 598, 380 A.2d 1052, 1056 (1977) cert. denied, 435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86

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(1978), this Court held a state statute invalid on equa1 protection grounds, with Judge Orth stating for the Court:

“We are not at liberty to bring about a different result by inserting or omitting words to make the statute express an intention not evidenced in its original form.”

See also Birmingham v. Board, 249 Md. 443, 449, 239 A.2d 923, 926 (1968) (“Nor have we the power to correct an omission in the language of a statute, even though the omission was the obvious result of inadvertence”).

The majority, in concluding that “§ 123 is salvageable because we shall employ a limiting construction to the statute” (slip opinion at 17), goes on to rely on the statement in Schochet v. State, 320 Md. 714, 729, 580 A.2d 176, 183 (1990), that “`[g]eneral statutes . . ., which, if given their broadest and most encompassing meaning, give rise to constitutional questions, have regularly been the subject of narrowing constructions so as to avoid the constitutional issues.'” (Slip opinion at 17). As pointed out in the Schochet opinion, however, there was statutory “silence” on the coverage issue there involved, and there was a long line of decisions in this Court confirming that the statute did not apply under the circumstances of that case. Schochet, 320 Md. at 731-734, 580 A.2d at 184-185. The statute involved in the case at bar, however, is not “silent” with regard to the object of the intent set forth in subsection (c)(1). Under the plain language of subsection (c)(1), the defendant must have the intent to “harass, alarm, or annoy the other person” and not to “harass, alarm or annoy” an objective “reasonable person” (emphasis added). Moreover, there is no long line of decisions by this Court applying Art. 27, § 123.

Furthermore, in the Schochet case the narrowing interpretation of the statute was employed to reverse the defendant’s criminal conviction; thus, no issue concerning unfair retroactivity was involved. In the present case, however, the defendant allegedly committed the offense and was convicted prior to this Court’s placing a “judicial gloss” on the statute. See, e.g., Marks v. United States, 430 U.S. 188, 191-192, 97 S.Ct. 990, 992-993, 51 L.Ed.2d 260, 265 (1977) (While “[t]he Ex Post

Page 666

Facto Clause . . . does not of its own force apply to the Judicial Branch of government . . . [,] the principle on which the Clause is based . . . is fundamental to our concept of constitutional liberty. * * * As such, that right is protected against judicial action by the Due Process Clause . . .”); Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). See also the recent opinion in Rogers v. Tennessee, 532 U.S. 451, ___, 121 S.Ct. 1693, 1697, 1703, 149 L.Ed.2d 697, 704, 711 (2001) (“[L]imitations on ex post facto judicial decisionmaking are inherent in the notion of due process. * * * [F]undamental due process prohibits the punishment of conduct that cannot fairly be said to have been criminal at the time the conduct occurred . . .”).

Nonetheless, for reasons later set forth in Part II of this dissent, I do not believe that inserting “a reasonable person standard” in subsection (c)(1) cures the overbreadth and vagueness defects in Art. 27, § 123, as interpreted by the majority.

II.
I shall now turn specifically to the language of Art. 27, § 123, and the majority’s interpretation of that language.

A.
Section 123 reads as follows:

Ҥ 123. Harassment.
“(a) Course of conduct defined. — In this section `course of conduct’ means a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.
(b) Applicability. — This section does not apply to any peaceable activity intended to express political views or provide information to others.
(c) Prohibited conduct. — A person may not follow another person in or about a public place or maliciously engage in a

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course of conduct that alarms or seriously annoys another person:
(1) With intent to harass, alarm, or annoy the other person;
(2) After reasonable warning or request to desist by or on behalf of the other person; and
(3) Without a legal purpose.
(d) Penalty. — A person who violates this section is guilty of a misdemeanor and, upon conviction, is subject to a fine not exceeding $500 or imprisonment for not more than 90 days or both.”

The conduct proscribed by the statute is set forth in subsection (c), and the State must prove four distinct elements to bring the conduct within the prohibition of subsection (c).

First, the State must prove either that the defendant followed another person in or about a public place or, alternatively, that the defendant maliciously engaged in “conduct that alarms or seriously annoys” the other person. The alternative “engaged in conduct” element was allegedly involved in the present case.

Second, under subsection (c)(1), the State must prove that the defendant acted with one of the alternative requisite intents, namely to harass or to alarm or to annoy the other person. Interestingly, with respect to “annoy,” under the initial language of subsection (c) the conduct must in fact “seriously” annoy the other person, whereas the accompanying intent under subsection (c)(1) does not require “serious” annoyance. Also, the prohibited course of conduct under the initial part of subsection (c) is limited to that which alarms or seriously annoys, but the accompanying intent under subsection (c)(1) adds “harass” to “alarm, or annoy.”

Third, under subsection (c)(2), it must be shown that the defendant had, prior to the charged conduct, been given a reasonable warning or request to desist. This may be the only element of the offense which is set forth with reasonable clarity and is not muddled by the majority.

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Fourth, under subsection (c)(3), the prosecution must prove that the defendant acted “[w]ithout a legal purpose.”

In a case where the State establishes the various elements of the offense set forth in subsection (c), the defendant nevertheless cannot be convicted under § 123 if his conduct fell within either of the exceptions delineated in subsection (b). Subsection (b) excepts from the coverage of the statute peaceable activity which is intended either “to express political views” or to “provide information to others.”

Subsection (a) of the statute is the definitional subsection, although it contains a partial definition of only one of the phrases in the statute, namely “course of conduct.” The statute contains no definitions of “harass, alarm, or annoy.” It contains no definitions of the element “[w]ithout a legal purpose” or of the exception for “provid[ing] information to others.”

Where the conduct prohibited by § 123 consists of sending communications, the majority indicates that the prohibition relates to “`the manner and means employed to'” send the communications “`rather than their content”‘ and that “`the statute proscribes conduct, rather than the content of the mailings'” (slip opinion at 45, quoting from a Connecticut case). The majority shortly thereafter again indicates that “`[t]he statute is not directed at the content of speech'” (slip opinion at 46, n. 35, quoting from a Pennsylvania case). The majority goes on to note that “content must be examined” but states that where there is an intent to harass, alarm, or annoy, the content “no longer falls under protected speech” (slip opinion at 47, n. 36). Later in the opinion, the majority reiterates that content is irrelevant because “[t]he mere sending and receipt of that volume of letters, coming after the warnings to Galloway, even had Javin not opened them, supported a reasonable inference of Galloway’s unlawful intent and adverse effects on the victim.” (Slip opinion at 56). The majority’s position seems to be that, where the State establishes the intent, effect, and warning elements of subsections (c)(1) and (c)(2), the content of the speech is utterly irrelevant. The majority’s

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view of the statute is puzzling in light of the distinct requirement in subsection (c)(3) that the State prove that the conduct is “[w]ithout a legal purpose” and the exceptions in subsection (b) for the “express[ion] of political views” and “provid[ing] information to others.” How does a court conclude that the sending of letters is without a legal purpose, or is not the expression of political views, or is not the providing of information, without looking at the content of the letters? Somewhat inconsistently, the majority opinion later relies upon the religiou content of the letters as evidence supporting a finding which “the trial judge could” make with regard to Galloway’s intent. (Slip opinion at 55, emphasis added).

When the prohibited conduct involves speech or the sending of communications, it seems clear that § 123 is concerned with th content of the speech or communications. This is shown by the exceptions in subsection (b) and the “legal purpose” element in subsection (c)(3). Accordingly, § 123, when applied to oral or written speech or communications, requires the “application of the most exacting level of First Amendment scrutiny,” rather than “the intermediate level of scrutiny,” Turner Broadcasting System, Inc. v. F.C. C., supra, 512 U.S. at 661-662, 114 S.Ct. at 2469, 129 L.Ed.2d at 530. Under either level of scrutiny, however, the statute suffers from overbreadth. Moreover, the inconsistency in the majority’s interpretation of the statute, with respect to content, helps make a vague statute even vaguer.

B.
Throughout much of the majority opinion, the Court relies upon the “[w]ithout a legal purpose” element in subsection (c)(3) and the exceptions in subsection (b) as “limiting language” and “inherent restrictions” having “a definite and clear meaning that helps in setting the boundaries for the enforcement of § 123” (slip opinion at 19-20, 27, 31, 39). The majority further points to subsections (c)(3) and (b) as “restrictive language [which] helps to abate any overbreadth” (slip opinion at 48). The Court also relies on these provisions in distinguishing the Maryland statute from statutes in other

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jurisdictions which have been held unconstitutional on overbreadth and/or vagueness grounds (e.g., slip opinion at 19, 52).

After placing so much reliance upon subsections (c)(3) and (b) as “inherent restrictions,” however, the majority goes on in the later part of its opinion to construe and apply these provisions in a way that renders them largely nugatory. At the very least, the majority’s construction and application of subsections (c)(3) and (b) leave a reader in total bewilderment as to the meaning of the provisions. Instead of helping to cure the overbreadth and vagueness associated with § 123’s prohibition against annoying or alarming conduct, the majority’s construction and application of subsections (c)(3) and (b) exacerbate the statute’s overbreadth and vagueness.

As previously discussed, subsection (c)(3) requires the State to prove, as an element of the § 123 offense, that the defendant’s conduct was “[w]ithout a legal purpose.” If this provision were given its plain, broad, ordinary meaning, it would materially help to overcome the overbreadth and vagueness inherent in a prohibition against annoying or alarming conduct. Under the plain language of subsection (c)(3), as applied to letters, an illegal purpose would be if the letters solicited someone to commit a crime, or were involved in a criminal conspiracy, or contained threats in violation of another statute, or contained matter in violation of federal law or postal regulations, or were smuggled out of a correctional institution in violation of prison regulations, or discussed plans for an escape from prison. Many other examples of illegal purposes could be set forth. But what is illegal about a series of letters, presumably permitted by prison and postal regulations, from an obsessive former boyfriend containing expressions of religious beliefs, emotional feelings, and apologies for past conduct? In this connection, the trial judge’s remarks to Galloway when he was first sentenced to prison in 1995 are pertinent. Judge Thieme, the sentencing judge, then stated:

“[Y]ou can write her every day. There is nothing I can do about it. You can call her on the phone; there is nothing I can do about it.”

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The trial judge in the case at bar, in his opinion denying the defendant’s pre-verdict motions, seemed to hold that Galloway’s letters were without a legal purpose because they were “personal.” He did not explain why a “personal” communication is without a legal purpose, whereas a non-personal communication would have a legal purpose. If the meaning of subsection (c)(3) is that all “personal” conduct is “[w]ithout a legal purpose,” the subsection would do very little to cure the overbreadth and vagueness inherent in a statute punishing annoying or alarming conduct.

The majority indicates, and I agree, that “legal purpose” has a clearer and more definite meaning than the phrase “legitimate purpose” found in some statutes which have been invalidated in other jurisdictions, and that “`[l]egal’ derives from or is found in law,” whereas “`legitimate’ . . . encompasses that which is legal and beyond.” (Slip opinion at 38-39). The majority fails to tell us, however, what is not “legal” with respect to sending letters of the type here involved.

Finally, the majority simply concludes its opinion by stating: “It also is evident from the record that Petitioner acted without a legal purpose.” (Slip opinion at 56). We are not informed as to what in the record makes this evident. The Court today gives utterly no meaning to subsection (c)(3) and proceeds as if the element were not in the statute. Under these circumstances, the majority’s repeated reliance upon subsection (c)(3), as restrictive language helping to cure § 123’s overbreadth and vagueness, leaves one dumbfounded.

The same is true of the majority’s treatment of the exception in subsection (b) for “peaceable activity intended to . . . provide information to others.” Again, if this exception were given its plain, broad, ordinary meaning, it would also help in curing the overbreadth and vagueness in the statutory prohibition against annoying or alarming conduct. And the majority initially indicates that the exception is broad, exempting from the statute’s coverage “`constitutionally protected activity.'” (Slip opinion at 40). Nevertheless, the majority goes on to hold that Galloway’s letters expressing religious views, feelings,

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and apologies do not constitute the expression of constitutionally protected activity. Under the majority’s opinion, it would appear that the conduct of a minister of a religious sect, who repeatedly sends unwanted letters or pamphlets setting forth religious views similar to Galloway’s, to persons who are seriously annoyed by them, would not fall within the exception in subsection (b) and could be criminally punished. On the other hand, according to the majority, repeated “commercial solicitations” and the sending of “leaflets” concerning “store openings” (slip opinion at 40), are protected by the exception in subsection (b). The distinctions suggested by the majority concerning subsection (b) are, to say the least, puzzling.

With regard to both the “legal purpose” element in subsection (c)(3) and the exceptions in subsection (b), the majority’s ultimate position is set forth towards the end of the opinion where the Court states (slip opinion at 54, emphasis supplied):

“After the initial few letters, however, Galloway was warned multiple times that Javin did not wish to receive communications from him. Those instructions notwithstanding, he continued his course by sending a large number of additional letters. From this, a reasonable fact-finder reasonably could conclude that Galloway’s intent was, in fact, to harass Javin, rather than merely to engage in a peaceable activity, with a legal purpose.”

The majority seems to be saying that, if the intent element of subsection (c)(1) is established, then the “peaceable activity” exceptions in subsection (b) are inapplicable and the “[w]ithout legal purpose” element in subsection (c)(3) is proven. This approach renders subsections (b) and (c)(3) entirely nugatory.

Obviously, under the structure and wording of the statute, one can send a communication with more than a single intent. One can intend “to harass, alarm, or annoy,” and also intend to furnish information. If conduct is not accompanied by an “intent to harass, alarm, or annoy,” the conduct is not prohibited, and there is no occasion to consider the statutory exemptions in subsection (b) for political views or the providing of information. The exception in § 123(b) for the expression of

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political views or the communicating of information only becomes pertinent and meaningful when the expression or communication is with the intent to harass, alarm, or annoy. Under the majority’s reasoning, if a candidate for public office repeatedly mails a “plethora”[46] of campaign literature to a particular person, after having been informed that the recipient does not wish to receive such political literature, a fact-finder could determine that the candidate had an intent to annoy and that the candidate violated this criminal statute despite the exception for the expression of political views. I do not believe that either the language of § 123 or the First Amendment or Article 40 of the Maryland Declaration of Rights would permit this result.

Similarly, the “[w]ithout legal purpose” element in subsection (c)(3) is totally distinct from the “intent” element in subsection (c)(1). Under Art. 27, § 123, the State must prove both that the defendant had the “intent to harass, alarm, or annoy the other person” and that the defendant’s conduct was “[w]ithout a legal purpose.” The majority, by contrasting the intent to harass with legal purpose, and suggesting that the intent to harass negates any legal purpose, has merged two distinct elements into one. Furthermore, under the majority’s view of the Maryland statute, neither subsection (b) nor subsection (c)(3) can serve as language limiting the overbreadth and vagueness inherent in subsections (c) and (c)(1). If proof of the intent element in (c)(1) means that (b) and (c)(3) are inapplicable, they are obviously not restrictions upon the statute’s broad punishment of intentional annoying or alarming conduct.

C.
The majority opinion acknowledges that courts in other jurisdictions have held that harassment statutes, prohibiting conduct intended “to alarm, annoy, or harass” another person, are unconstitutionally overbroad and/or vague. In fact, the

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majority of cases over the past 30 years, dealing with the constitutionality under the First and Fourteenth Amendments of harassment statutes similar to Maryland’s Art. 27, § 123, have held that such statutes are unconstitutional. The Court today, however, purports to distinguish some of those cases on the grounds that the Maryland statute has “inherent limitations” such as the requirement of no “legal purpose” in subsection (c)(3) or the exception for “provid[ing] information to others” in subsection (b), and that the Maryland statute “is salvageable because we shall employ a limiting construction” by inserting the words “reasonable person” in subsection (c)(1). (Slip opinion at 17). The majority also announces that “we shall not follow those jurisdictions that have found harassment statutes to be unconstitutionally vague.” (Ibid.).

For the reasons set forth above in Part II B of this dissenting opinion, the “[w]ithout legal purpose” element in subsection (c)(1), and the exceptions in subsection (b), as construed and applied by the majority today, are not “inherent limitations.” Instead, the majority’s interpretation and application of those provisions enhance the statute’s overbreadth and vagueness. Furthermore, as discussed below, the insertion of “reasonable person” language in subsection (c)(1) does not cure the inherent vagueness and overbreadth of a statute which criminally punishes one who intentionally “annoys” or “alarms” someone else, regardless of whether the latter is a “reasonable person.”

In rendering his verdict, the trial judge specifically found that Galloway intended “to annoy or to harass” within the meaning of subsection (c)(1) (emphasis supplied). The judge, however, did not explain the difference between “annoy” and “harass,” if any, and did not say which intent Galloway had.

The Supreme Court in Coates v. Cincinnati, 402 U.S. 611, 611-614, 91 S.Ct. 1686, 1687-1688, 29 L.Ed.2d 214, 217 (1971), held that an ordinance which criminally punished persons who assembled on a sidewalk and engaged in “conduct” which was “annoying to persons passing by” was “unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad

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because it authorizes the punishment of constitutionally protected conduct.” As to vagueness, the Supreme Court continued (402 U.S. at 614, 91 S.Ct. at 1688, 29 L.Ed.2d at 217-218):

“Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, `men of common intelligence must necessarily guess at its meaning.’ Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328.
“It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city’s constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. Gregory v. Chicago, 394 U.S. 111, 118, 124-125, 89 S.Ct. 946, 950, 953-954, 22 L.Ed.2d 134, 139-140, 143-144 (Black, J., concurring). It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.”

The same may be said of the “conduct” prohibited by § 123. Except for the statement in subsection (a) that the conduct must be a pattern consisting of a series of acts, neither the words of the statute nor the majority opinion in this case tell us what type of “conduct” is prohibited. The word “conduct” itself covers virtually the entire range of human activity, and the only statutory limitation as to the type of conduct is that it be repeated and seriously annoying or alarming.

The majority’s insertion of a “reasonable person” standard does little or nothing to cure the vagueness. The Supreme Court’s language i Coates is still applicable even with the insertion of a reasonable person standard, i.e., “[c]onduct that annoys some [reasonable] people does not annoy others.”

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402 U.S. at 614, 91 S.Ct. at 1688, 29 L.Ed.2d at 217. Repeated letters from an obsessive former boyfriend, setting forth his feelings, apologizing for past conduct, and expressing his religious views, might annoy some reasonable recipients but not annoy other reasonable recipients. While some reasonable persons might be annoyed, other reasonable persons might simply ignore such letters, or suggest that the sender “get a life,” or suggest that he seek professional help, or view him as immature and foolish, or merely feel sorry for him. Although almost anyone who had previously been a victim of the type of criminal activity that Galloway had committed in 1994 and 1995 would be annoyed and alarmed by the repeated letters, neither the statute nor the majority’s interpretation of it is confined to this situation. As earlier discussed, § 123 is not limited to circumstances where there was prior criminal involvement with the victim, or prior threats of harm, or a prior domestic violence protective order. Such a limited statute might well pass constitutional muster. Such a statute, in the language o Coates v. Cincinnati, would appear to be “directed with reasonable specificity toward the conduct to be prohibited.” 402 U.S. at 614, 91 S.Ct. at 1688, 29 L.Ed.2d at 217.[47] The prohibition of annoying conduct in § 123, however, particularly as interpreted by the majority, is as vague as the prohibition in the statute involved i Coates.[48]

The Supreme Court in Coates also found that the statute involved was overbroad in violation of the First Amendment,

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saying (402 U.S. at 615-616, 91 S.Ct. at 1688-1689, 29 L.Ed.2d at 218, footnotes and citations omitted):

“But the vice of the ordinance lies not alone in its violation of the due process standard of vagueness. The ordinance also violates the constitutional right of free assembly and association. Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgment of these constitutional freedoms. . . . The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be `annoying’ to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is `annoying’ because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens.”

Similarly, the First and Fourteenth Amendments, as well as Articles 36 and 40 of the Maryland Declaration of Rights, would ordinarily preclude a state from criminally punishing one who writes letters expressing feelings, religious views, and apologies, to someone with whom the writer had previously cohabited. Again, while these constitutional provisions might allow such punishment under the particular facts of the present case, neither the statutory language nor the majority’s interpretation of the statute is so limited. As the Supreme Court emphasized in Coates v. Cincinnati, and numerous other cases, conduct otherwise protected by the First Amendment

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cannot be prohibited or punished merely because it annoys, or angers, or offends, or induces unrest, or is objectionable to, or is obnoxious to others. See, e.g., Texas v. Johnson, 491 U.S. 397, 408-409, 109 S.Ct. 2533, 2542, 105 L.Ed.2d 342, 356 (1989) (relying, inter alia, on Coates v. Cincinnati); City of Houston v. Hill, 482 U.S. 451, 459-467, 107 S.Ct. 2502, 2508-2512, 2512, 96 L.Ed.2d 398, 410-415 (1987) (same) Gooding v. Wilson, 405 U.S. 518, 521-528, 92 S.Ct. 1103, 1105-1109, 31 L.Ed.2d 408, 413-418 (1972); Cohen v. California, 403 U.S. 15, 21-25, 91 S.Ct. 1780, 1786-1788, 29 L.Ed.2d 284, 291-294 (1971); Bachellar v. Maryland, supra, 397 U.S. at 567, 90 S.Ct. at 1314, 25 L.Ed.2d at 573-574. Moreover, the “other persons” referred to in these and similar cases have often been large segments of the general public; consequently, they would seem to include “reasonable persons.”

The majority distinguishes the Supreme Court’s holdings in Coates v. Cincinnati, saying: “The Maryland statute is distinguishable because it proscribes a course of conduct and requires specific intent on the part of the defendant . . .” (slip opinion at 21, n. 16). The ordinance involved in Coates, like § 123, prohibited “conduct” which was “annoying.” While the Coates ordinance may not have required repeated activity, this difference has little or no relevance to the vagueness or overbreadth inherent in punishing “annoying” conduct. The factor of repetition does not clarify the vagueness or overbreadth associated with the words “annoy” or “alarm.” The same is true of the adjective “serious” which modifies “annoy.” While the requirements of repetition or seriousness may slightly reduce the number of prosecutions under the statute, they shed no light on what constitutes the prohibited “annoying conduct.” Moreover, where activity is protected by the First Amendment and Articles 36 and 40 of the Maryland Declaration of Rights, the protection applies to repeated activity as well as a single episode.[49]

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Likewise, the requirement of a specific intent to annoy or alarm in subsection (c)(1) of the Maryland statute does not cast any light on what type of conduct is criminally “annoying” or “alarming.” The same vague and broad language used in the initial part of subsection (c) is also used in subsection (c)(1) containing the intent requirement. Prohibitin intentional unknown conduct is just as vague as prohibiting unintentional unknown conduct.

Furthermore, activity protected by the First Amendment and Articles 36 and 40 of the Maryland Declaration of Rights remains protected when it is intentional. In fact, most conduct protected by the rights to freedom of speech and freedom of religion is intentional. With a few exceptions not applicable here, neither the element of intent nor the element of malice removes from oral or written speech the protections of the First Amendment and Articles 36 and 40 of the Declaration of Rights. As the Supreme Court pointed out in Hustler Magazine v. Falwell, 485 U.S. 46, 53, 108 S.Ct. 876, 880, 99 L.Ed.2d 41, 50 (1988),

“many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), we held that even when a speaker or writer is motivated by hatred or illwill his expression was protected by the First Amendment . . . .”

Coates v. Cincinnati, as well as many other cases invalidating statutory provisions which attempt to punish annoying conduct, are not distinguishable from the present case on any principled or logical basis.[50] A case involving a prosecution,

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under a harassment statute similar to Maryland’s, for mailing a large number of “annoying” written documents, is Bolles v. People of Colorado, 189 Colo. 394, 541 P.2d 80 (1975). The facts in Bolles were that the defendant mailed to various homes 2400 pieces of mail. Each piece of mail contained, in a plain envelope, “twelve points of information regarding abortion and its practice . . . . It also included a color brochure portraying numerous aborted fetuses and one live baby.” Bolles, 189 Colo. at 396, 541 P.2d at 81. The defendant was prosecuted under a Colorado statute which was more limited than Maryland’s, and which provided for the punishment of one who “communicates with a person, anonymously or otherwise by telephone, telegraph, mail, or any other form of communication, in a manner likely to harass or cause alarm,” and with the “intent to harass, annoy, or alarm another person.” In holding that the statute was overbroad and unconstitutional under the First and Fourteenth Amendments,

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the Supreme Court of Colorado stated (189 Colo. at 397-398, 541 P.2d at 82):

“However, a statute intended to proscribe unprotected activity must not also proscribe activity protected under the First Amendment.
* * *
“In short, in the First Amendment area, a statute must be narrowly drawn to implement legitimate and constitutional legislative purposes.
“The statute before us in this case is anything but narrowly drawn. It could, of course, be relied upon to punish for obscene, libelous, riotous communication which is probably constitutionally permissible. Yet the crucial factor is that this statute could also be used to prosecute for communications that cannot be constitutionally proscribed.
“To illustrate the overbreadth of this statute, it is useful to first define some of the significant terms used in the statute. According to Webster’s New International Dictionary of the English Language, (3d ed. Unabridged, 1961), `annoy’ means `to irritate with a nettling or exasperating effect.’ `Nettling’ means `to arouse displeasure, impatience, or anger in: provoke, vex.’ `Alarm’ means `to arouse to a sense of danger; to put on the alert; to strike with fear; fill with anxiety as to threaten danger or harm.’
“If we substitute these definitions in place of the terms used in the statute, we find that one is guilty of the crime of harassment if he intends to `alarm’ another person — arouse to a sense of danger — and communicates to that other person in a manner likely to cause alarm. It would therefore be criminal in Colorado to forecast a storm, predict political trends, warn against illnesses, or discuss anything that is of any significance.
“So, also, if one has the intent to annoy — to irritate with a nettling or exasperating effect — and he communicates with another in a manner that is likely to cause alarm — to put on the alert — he too is guilty of harassment. The absurdity of this is patently obvious to anyone who envisions our society

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in anything but a state of languid repose. The First Amendment is made of sterner stuff.”

The lower court in the Bolles case had “attempted to save the statute from successful constitutional attack by engrafting onto it a statement that it applied only to conduct engaged in for `no legitimate purpose.'”Bolles, 189 Colo. at 398, 541 P.2d at 83. The Colorado Supreme Court, however, pointed out that the inserted language itself “injects a vagueness into the statute which cannot withstand First Amendment scrutiny.” Ibid. The same is true of the “[w]ithout legal purpose” element of the Maryland statute as construed and applied by the majority today.

With respect to the prosecution’s argument in Bolles that a recipient’s “right of privacy in the home justifies the broad wording of the subsection in question” (189 Colo. at 399, 541 P.2d at 83), the Supreme Court of Colorado responded (ibid.):

“Use of the mail to convey one’s message no doubt encroaches on the sanctity of the home; however, the intrusion into the recipient’s privacy is only minimal since he is not only free to discard at once any mail that he does not wish to receive, but can also ensure that he will not receive any more like it from the sender. See Rowan v. United States Post Office Department, supra.”

Factually similar to the present case is Kramer v. Price, 712 F.2d 174
(5th Cir. 1983), in which the United States Court of Appeals for the Fifth Circuit, in an opinion by Judge John Minor Wisdom, held that the Texas harassment statute was unconstitutionally vague. The Texas statute was also more specific than Maryland’s harassment statute, as the proscribed conduct under the Texas statute was limited to certain types of telephone and written communications. It provided for the punishment of one who intentionally “communicates by telephone or in writing in vulgar, profane, obscene, or indecent language or in a coarse and offensive manner” and, by such “action intentionally, knowingly, or recklessly annoys or alarms the recipient,” 712 F.2d at 176. The defendant in the Kramer case was a former girlfriend of John Keiser, who had

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cohabited with Keiser, and who, after Keiser’s marriage to another woman, had mailed to him letters and postcards that “were so voluminous that they filled two to three grocery sacks.” Id. at 175 n. 1. Also, one of the letters was clearly threatening to Keiser’s and his wife’s new baby. The United States Court of Appeals for the Fifth Circuit, relying on and quoting from Coates v. Cincinnati, supra, and pointing to the “inherent vagueness” in “the terms `annoy’ and `alarm,'” held that “the statute falls on vagueness grounds.” Id. at 178.[51]

Other cases holding similar statutory language unconstitutional, on overbreadth and/or vagueness grounds, include, e.g., People v. Hickman, 988 P.2d 628, 641-642 (Colo. 1999) (“`act of harassment’ as used in [the statute] encompasses a substantial amount of constitutionally protected communications”); People v. Norman, 703 P.2d 1261, 1266-1267 (Colo. 1985) (“the terms `annoy’ and `alarm,’ when given their conventional meanings, [are] so broad that the most innocuous comment about a debatable or unpleasant topic might subject a person to criminal prosecution under” the harassment statute); Thelen v. State, 272 Ga. 81, 82, 526 S.E.2d 60
(2000) (relying on Coates v. Cincinnati, the court invalidated on vagueness grounds the proscription of specified conduct which “annoys” others); People v. Klick, 66 Ill.2d 269,

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362 N.E.2d 329 (1977) (invalidating on overbreadth grounds, based o Coates v. Cincinnati and similar cases, a statute proscribing telephone calls with intent to annoy); State v. Bryan, 259 Kan. 143, 147-148, 910 P.2d 212, 216-217 (1996) (pointing out that, since Coates v. Cincinnati, “[o]ther courts have followed the holding in Coates in determining that statutes prohibiting annoying conduct are impermissibly vague”); State v. Jamgochian, 109 R.I. 17, 24, 279 A.2d 923, 927 (1971) (holding unconstitutional, under Coates v. Cincinnati, that portion of an ordinance making it unlawful for a person to stand on a sidewalk and inter alia, “annoy passers-by”); May v. State, 765 S.W.2d 438, 440 (Tex.Crim.App. 1989) (“the inherent vagueness of the statute . . ., in attempting to define what annoys and alarms people, . . . causes it to be unconstitutionally vague”); City of Everett v. Moore, 37 Wn. App. 862, 866, 683 P.2d 617, 619 (1984) (In holding that provisions of an harassment statute are invalid under Coates v. Cincinnati and similar cases, the court stated that the statute “does not draw a reasonably clear line between the kind of annoying conduct which is criminal and that which is not”); State v. Dronso, 90 Wis.2d 110, 116-117, 279 N.W.2d 710, 714 (1979) (“A statute which subjects a telephone caller to criminal sanctions . . . for calling with intent to annoy . . . is overbroad as it may reasonably be interpreted to prohibit free speech which is constitutionally protected by both the United States and Wisconsin Constitutions”).[52]

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D.
As previously discussed, a narrowly drawn statute targeting conduct like Galloway’s, under the circumstances here, might well be constitutional. Moreover, § 123 itself might well be constitutional if the majority were willing to give effect to the plain language of subsection (b) which broadly exempts the providing of information and of subsection (c)(3) which requires the State to prove illegality of purpose. Giving effect to the plain language of subsections (b) and (c)(3) would substantially limit and clarify the broad and vague words in (c) and (c)(1). Of course, giving effect to the words of subsections (b) and (c)(3) would require a reversal of Galloway’s conviction in the present case. With all due respect, it is anomalous that the majority is willing to re-write subsection (c)(1) in order to sustain the conviction, but it is not willing to apply the literal language enacted by the General Assembly in subsections (b) and (c)(3) which would result in a reversal.

This case is a classic example of the saying that hard cases make bad law. No reasonable person would condone Galloway’s atrocious conduct. Nevertheless, sustaining his conviction and 90-day additional sentence is not worth obfuscating the language of statutory provisions or failing to apply important constitutional safeguards.

I would reverse.

Chief Judge Bell and Judge Raker have authorized me to state that they concur with the views expressed herein and join this dissenting opinion.

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