People v. Alexander, No. 81SA363

Docket NºNo. 81SA363
Citation663 P.2d 1024
Case DateMay 09, 1983
CourtSupreme Court of Colorado

Page 1024

663 P.2d 1024
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Kevin ALEXANDER, Defendant-Appellant.
No. 81SA363.
Supreme Court of Colorado,
En Banc.
May 9, 1983.

Page 1025

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Nathan B. Coats, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Dean, Martin, Mitchell & Schwartz, Daniel W. Dean, Fort Collins, for defendant-appellant.

QUINN, Justice.

The defendant, Kevin Alexander, appeals his conviction for violating section 18-5-302(2), C.R.S.1973 (1978 Repl.Vol. 8), which prohibits a person from knowingly making "a false representation as to the existence of an ownership interest in land which he has as a seller ... and which is relied upon." 1 The jury found the defendant guilty of this class 5 felony on the basis of his statement to a prospective purchaser that he "owned" a parcel of land when in reality he had merely contracted to purchase the land and had not yet acquired title. The defendant's major arguments are that section 18-5-302(2) is unconstitutionally vague, that there was insufficient evidence to submit the charge to the jury, and that the jury instructions were inadequate. 2 We affirm the judgment.

Page 1026

I.

On November 8, 1979, an information was filed in the Larimer County District Court charging the defendant with a violation of section 18-5-302(2). The information, as later amended, charged that between February 10, 1979, and July 25, 1979, the defendant knowingly made a false representation as to the existence of an ownership interest in land, upon which John Forsyth relied. Trial was held to a jury on April 28 and 29, 1980. The prosecution's evidence established that on December 20, 1978, the defendant entered into a written contract to purchase from Richard Busteed 160 acres of land located near Wellington, Colorado, for a price of $100,000. The contract provided that Busteed would tender a general warranty deed to the defendant on January 18, 1979, with possession of the premises to be delivered upon closing. The Busteed contract credited the defendant with a $2,000 earnest money payment, with the balance to be paid off by a $23,000 cashier's check at closing and three promissory notes. According to Busteed's testimony, the $2,000 earnest money was never paid in cash but was credited to the defendant on the basis of Busteed's use of the defendant's car over a period of ten months and also other consideration paid by the defendant to Busteed on two other contracts. Sometime in February of 1979 a lien was filed against Busteed's property, and Busteed, thinking that he ultimately would remove the lien, convinced the defendant to extend the contract closing date to June of 1979. Busteed, however, was unable to convey clear title even on the second scheduled date.

In the early part of 1979 the defendant told John Forsyth, whose grocery store he patronized, that he "had purchased" and "owned" 160 acres of land near Wellington, Colorado, which he intended to divide into four forty acre parcels for resale. Forsyth decided to purchase one of the forty acre parcels, and on March 8, 1979, entered into a contract with the defendant. The contract provided for a purchase price of $29,000, of which $1,000 was receipted for by the defendant and $21,700 was to be paid in monthly payments of $286.78. 3 The contract stated that the defendant would furnish Forsyth an abstract of title or a title insurance commitment on or before March 5, 1979, and that "the seller shall execute and deliver a good and sufficient general warranty deed to said purchaser on March 10, 1979."

Notwithstanding the terms of the contract, Forsyth was unclear in his testimony about the precise time at which he believed he was to receive title to the property. At one point he stated that title would pass when his downpayment installments reached $6,300, and at another point he stated that "the property would close ... within 90 days after the signing of the contract." A receipt admitted into evidence indicated that between March 9 and July 25, 1979, Forsyth made a series of six payments to the defendant, totaling $6,050. During this period the defendant reiterated that he owned the property and never mentioned that he was merely involved in the

Page 1027

process of buying it from Busteed. Forsyth eventually asked the defendant to schedule a closing date for the transfer of title, but the defendant delayed with a series of excuses. When Forsyth became seriously concerned, he went to the county register of deeds office and determined that the defendant did not own the land. James P. Thompson, Larimer County Clerk and Recorder, also testified for the prosecution. He related that the record title to the Wellington property was in Richard Busteed from June 13, 1977, through March 18, 1980.

The defendant's only witness was Richard Busteed, who testified that he ultimately sold forty acres of the Wellington property directly to Forsyth on the terms set forth in Forsyth's contract with the defendant and with credit for the payments Forsyth had made to the defendant. The court denied the defendant's motion for a judgment of acquittal at the end of all the evidence and, over the defendant's objection, instructed the jury on the elements of the charge as follows:

"A person commits the crime of false representation concerning ownership of land if:

"He knowingly makes a false representation as to the existence of an ownership interest in land which he has as a seller and which is relied upon.

"The elements of the crime of false representation concerning ownership of land are therefore:

(1) Knowingly making a false representation as to the existence of an ownership interest in land

(2) Which he has as a seller and

(3) The false representation is relied upon."

The defendant supplemented his objection with a specific request to modify the third element to require that the false representation be "reasonably or justifiably relied upon." This request was denied, but the court did instruct the jury that reliance upon a false representation exists if the alleged victim, believing the representation to be true, takes action which he otherwise would not have taken or decides against taking action which he otherwise would have taken. The court rejected another instruction, tendered by the defendant, which particularized the meaning of "justified reliance" in terms of the victim's duty to investigate. Also rejected by the court were the defendant's tendered instructions on various principles of property law, such as equitable conversion, the right to convey when out of possession, the right to immediate possession upon conveyance, and the doctrine of after acquired title. The jury returned a guilty verdict to the charge, and this appeal followed.

II.

We first consider the defendant's argument that section 18-5-302(2), C.R.S.1973 (1978 Repl.Vol. 8), is unconstitutionally vague as violative of due process of law, U.S.Const. Amend. XIV; Colo.Const. Art. II, Sec. 25. Basic and long established rules must guide our analysis of the defendant's claim. A statute is presumed to be constitutional, and the burden falls upon the party attacking the statute to establish its unconstitutionality beyond a reasonable doubt. E.g., Bollier v. People, 635 P.2d 543 (Colo.1981); People in the Interest of C.M., 630 P.2d 593 (Colo.1981); People v. Summit, 183 Colo. 421, 517 P.2d 850 (1974). If the challenged statute is susceptible of different constructions, one of which comports with constitutional requirements, the constitutional construction must be adopted. E.g., People ex rel. City of Arvada v. Nissen, 650 P.2d 547 (Colo.1982); People v. Smith, 638 P.2d 1 (Colo.1981); People v. Fitzgerald, 194 Colo. 415, 573 P.2d 100 (1978). "Also, it must be borne in mind that due process of law has never required mathematical exactitude in legislative draftsmanship." People ex rel. City of Arvada v. Nissen, supra at 550. Thus, while a statute must be sufficiently specific to give fair warning of the proscribed conduct, it often must remain sufficiently general "to address the essential problem under varied circumstances." Colorado Auto & Truck Wreckers v. Department of Revenue, 618 P.2d 646, 651 (Colo.1980). The critical inquiry in a void for vagueness challenge is

Page 1028

whether the law in question "either forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its application ...." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926).

A.

Section 18-5-302(2) prohibits a person from knowingly making "a false representation as to the existence of an ownership interest in land which he has as a seller ... and which is relied upon." Although the defendant makes only oblique reference to the term "an ownership interest in land," we nevertheless consider it as part of his due process argument. Property interests range from the absolute and unqualified fee simple through various gradations of lesser interests, and in our view present the type of "varied circumstances" that only a generic term such as "ownership" can adequately encompass. Section 18-5-302(2) in this respect is similar to other statutes containing general terms which have withstood constitutional challenges. See, e.g., People v. Smith, supra (the phrase "any means ... of sufficient consequence reasonably calculated to cause submission" in second degree sexual assault statute not unconstitutionally vague); People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (1980) (the term "emergency" in statutory offense of driving after judgment prohibited sufficiently understood to satisfy due process); People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979) (common sense meaning of the word "possession," although not defined in firearm statute, adequate to...

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40 practice notes
  • People v. Unruh, No. 84SA299
    • United States
    • Colorado Supreme Court of Colorado
    • 21 January 1986
    ...of proving the contrary is on the person attacking the statute. People v. Velasquez, 666 P.2d 567, 569 (Colo.1983); People v. Alexander, 663 P.2d 1024, 1027 (Colo.1983). Where, as in this case, the challenged statute does not involve a suspect classification or touch upon a fundamental righ......
  • Exotic Coins, Inc. v. Beacom, Nos. 82SA465
    • United States
    • Colorado Supreme Court of Colorado
    • 22 April 1985
    ...is presumed to be constitutional and a challenger has the burden of proving invalidity beyond a reasonable doubt. People v. Alexander, 663 P.2d 1024 (Colo.1983); Bollier v. People, 635 P.2d 543 (Colo.1981); People in the Interest of C.M. and E.M., 630 P.2d 593 (Colo.1981); People v. Edmonds......
  • People v. Hall, No. 85050
    • United States
    • Supreme Court of Michigan
    • 11 September 1990
    ...205 Cal.Rptr. 775, 685 P.2d 1126 (1984). The issue at hand has also been addressed by the Colorado Supreme Court. In People v. Alexander, 663 P.2d 1024, 1025-1026, n. 2 (Colo, 1983), it "The defendant ... argues that the trial court erred in finding probable cause at the preliminary hearing......
  • People v. Jory, Docket No. 93232
    • United States
    • Supreme Court of Michigan
    • 31 August 1993
    ...Burroughs v. State, 21 Md.App. 648, 320 A.2d 587 (1974); State v. Jeffcoat, 279 S.C. 167, 303 S.E.2d 855 (1983); People v. Alexander, 663 P.2d 1024 (Colo.1983); Graf v. State, 118 Neb. 485, 225 N.W. 466 (1929); Criner v. State, 92 Fla. 483, Page 237 109 So. 417 (1926); 32 Am.Jur.2d, False P......
  • Request a trial to view additional results
40 cases
  • People v. Unruh, No. 84SA299
    • United States
    • Colorado Supreme Court of Colorado
    • 21 January 1986
    ...of proving the contrary is on the person attacking the statute. People v. Velasquez, 666 P.2d 567, 569 (Colo.1983); People v. Alexander, 663 P.2d 1024, 1027 (Colo.1983). Where, as in this case, the challenged statute does not involve a suspect classification or touch upon a fundamental righ......
  • Exotic Coins, Inc. v. Beacom, Nos. 82SA465
    • United States
    • Colorado Supreme Court of Colorado
    • 22 April 1985
    ...is presumed to be constitutional and a challenger has the burden of proving invalidity beyond a reasonable doubt. People v. Alexander, 663 P.2d 1024 (Colo.1983); Bollier v. People, 635 P.2d 543 (Colo.1981); People in the Interest of C.M. and E.M., 630 P.2d 593 (Colo.1981); People v. Edmonds......
  • People v. Hall, No. 85050
    • United States
    • Supreme Court of Michigan
    • 11 September 1990
    ...205 Cal.Rptr. 775, 685 P.2d 1126 (1984). The issue at hand has also been addressed by the Colorado Supreme Court. In People v. Alexander, 663 P.2d 1024, 1025-1026, n. 2 (Colo, 1983), it "The defendant ... argues that the trial court erred in finding probable cause at the preliminary hearing......
  • People v. Jory, Docket No. 93232
    • United States
    • Supreme Court of Michigan
    • 31 August 1993
    ...Burroughs v. State, 21 Md.App. 648, 320 A.2d 587 (1974); State v. Jeffcoat, 279 S.C. 167, 303 S.E.2d 855 (1983); People v. Alexander, 663 P.2d 1024 (Colo.1983); Graf v. State, 118 Neb. 485, 225 N.W. 466 (1929); Criner v. State, 92 Fla. 483, Page 237 109 So. 417 (1926); 32 Am.Jur.2d, False P......
  • Request a trial to view additional results

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