People v. Baer, 97SA426

• Decision Date: 25 January 1999
• Docket Number: No. 97SA426,97SA426
• Citation: 973 P.2d 1225
• Parties: 1999 CJ C.A.R. 419 PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David Richard BAER, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1225

973 P.2d 1225

1999 CJ C.A.R. 419

PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David Richard BAER, Defendant-Appellee.

No. 97SA426.

Supreme Court of Colorado,

En Banc.

Jan. 25, 1999.

Paul R. McLimans, District Attorney, Bonnie S. Roesink, Deputy District Attorney, Laurie A. Booras, Special Deputy District Attorney, Criminal Enforcement Section, Denver, for Plaintiff-Appellant.

David F. Vela, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, for Defendant-Appellee.

Justice MARTINEZ delivered the Opinion of the Court.

The People appeal an order entered by the Moffat County District Court dismissing the case against David Richard Baer. The People charged Baer with two counts of harassment by stalking in violation of section 18-9-111(4)(a)(II), 6 C.R.S. (1998). The trial court dismissed the charges because it found the statute unconstitutionally overbroad and unconstitutionally vague. We conclude that section 18-9-111(4)(a)(II) is constitutional both on its face and as applied to Baer's alleged conduct. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings.

I.

The charges against Baer stem from his alleged contact with Darlene and Allen Scheller in December of 1996. Prior to this time and prior to her marriage to Mr. Scheller, Mrs. Scheller was involved in a relationship with Baer while residing in California. This relationship resulted in a son. Baer and Mrs. Scheller never married and, after the relationship ended, Mrs. Scheller moved to Moffat County, Colorado. During the period relevant to this case, she resided there with her son and her husband. There are no custody orders or agreements regarding the child.

According to the People, on or between December 3, 1996 and December 12, 1996, Baer committed harassment by stalking through his repeated communications with the Schellers. Although the People's complaint does not specify the episodes forming the basis for the charges, the affidavit supporting the arrest warrant sets forth many details. The allegations in the affidavit are summarized as follows. Baer telephoned the Schellers at least seven times during the ten days relevant to the complaint. On December 3, 1996, Baer called Mrs. Scheller and threatened to kill her and her husband if she did not tell Baer the whereabouts of his son. On December 4, 1996, Baer called Mrs. Scheller twice: the first time merely laughing before she hung up, and the second time indicating that he was half-way to Colorado and he was going to kill her.

Baer made three calls on December 6, 1996. In the first, he asked Mrs. Scheller if she were "ready to die." In the second call, Baer stated that, if Mrs. Scheller did not return to California within two weeks, he would have her "brought back on criminal charges." The third call was made to Mr. Scheller's place of employment. Although Mr. Scheller refused to take the call, his employer reported that Baer claimed Mr. Scheller had kidnapped Baer's son and was holding him for ransom. Mr. Scheller's employer terminated the call after Baer made vulgar and threatening remarks. Finally, the affidavit asserts that, on December 12, 1996, Baer left the following message on the Schellers' answering machine:

You want to play games and be a con artist and keep me from my son. You have a major fucking war on your hands. I've been fair to you. No more fucking niceguy. All I care about living for is to fuck you over, you fat fucking ugly cunt and Allen too. You both want to play games with me? All fucking things cease as of today. I care nothing else about in life, but to get both of you mother fuckers. And believe me the shit is going to happen. Have a nice fucking life.

Baer was subsequently arrested and charged with violating section 18-9-111(4)(a)(II). Section 18-9-111(4)(a) provides:

In addition to the circumstances described in subsection (1) of this section, a person commits harassment by stalking if directly or indirectly through another person such person knowingly:

...

(II) Makes a credible threat to another person and, in connection with such threat, repeatedly makes any form of communication with that person or a member of that person's immediate family, whether or not a conversation ensues.

For purposes of this section, a "credible threat" is defined as a "threat that would cause a reasonable person to be in fear for the person's life or safety or the safety of his or her immediate family[.]" § 18-9-111(4)(b)(I). ¹ Section 18-9-111(4)(b)(III) states, " 'In connection with' means acts occurring either before, during, or after the credible threat[.]"

Baer moved to dismiss the charges on the grounds that the statute is unconstitutionally overbroad and unconstitutional as applied to him. After a hearing, the trial court agreed and granted Baer's motion. The trial court's conclusion that the statute is overbroad was based primarily upon the definition of "in connection with" in section 18-9-111(4)(b)(III). Using this definition, the trial court found that a person violates the statute if the person makes a credible threat to another and, at any time, makes any form of communication with the recipient of the threat regardless of whether the communication is related to, a part of, or in furtherance of the credible threat. Thus, the court concluded that the statute reaches a substantial amount of constitutionally protected speech. The trial court also found the statute unconstitutional as applied to Baer's alleged conduct because the charges against him were based in part upon his protected communications regarding custody of his son.

Additionally, the trial court found the statute void for vagueness. Relying again upon the definition of "in connection with," the court found that ordinary persons cannot know what communications are proscribed because the statute "prohibits communications with the victim before a credible threat is made, whether or not the communication is related to the credible threat." The court also reasoned that, even if it construed the statute to reach only those communications related to, a part of, or in furtherance of the threat, the statute would still be unconstitutional because it does not contain a specific intent requirement. Consequently, the trial court found the statute void on its face.

The People appeal the trial court's order pursuant to section 16-12-102, 6 C.R.S. (1998), and section 13-4-102, 5 C.R.S. (1998). We reverse.

II.

This case calls upon us to examine section 18-9-111(4)(a)(II) for the first time. Because the resolution of this appeal largely depends upon the meaning of this statute, we first address the proper interpretation of section 18-9-111(4)(a)(II). See People v. Holmes, 959 P.2d 406, 410 (Colo.1998) (discussing operation of Contraband Statute before addressing its constitutionality). We then investigate whether the statute comports with constitutional norms.

A.

In interpreting a statute, we must ascertain the intent of the legislature. See Weld County Sch. Dist. RE-12 v. Bymer, 955 P.2d 550, 554 (Colo.1998). To this end, we afford the language of a statute its plain and ordinary meaning. See Christie v. Coors Transp. Co., 933 P.2d 1330, 1332 (Colo.1997). Where the statutory language leaves doubt as to its meaning, we may examine other sources of legislative intent, including the legislature's objective, the circumstances surrounding the enactment, and the consequences of a particular construction. See State Eng'r v. Castle Meadows, Inc., 856 P.2d 496, 504 (Colo.1993). With these guiding principles, we turn to section 18-9-111(4)(a)(II).

Under the statute, a person commits harassment by stalking if, directly or indirectly through another person, such person "makes a credible threat to another person and, in connection with such threat, repeatedly makes any form of communication with that person or a member of that person's immediate family." § 18-9-111(4)(a)(II) (emphasis added). Thus, in addition to the credible threat itself, only those repeated communications made "in connection with" the credible threat are implicated by this statute. Section 18-9-111(4)(b)(III) provides, " 'In connection with' means acts occurring either before, during, or after the credible threat."

It must be acknowledged that subparagraphs (4)(a)(II) and (4)(b)(III), when considered together, cannot be read literally. To do so would result in the following ungrammatical and nonsensical pronouncement: a person commits harassment by stalking if the person knowingly "makes a credible threat to another person and, acts occurring either before, during, or after the credible threat, repeatedly makes any form of communication with that person." Hence, the language of the statute leaves some doubt as to its meaning.

Yet, the statutory language is not impenetrable; it lends itself to two clear alternatives. Under the first, one should simply ignore the words "acts occurring" in subparagraph (4)(b)(III). Thus, a person commits the offense if the person knowingly makes a credible threat to another person and before, during or after such threat, repeatedly makes any communication with that person. The trial court below adopted this construction.

Alternatively, one should interpret the word "means" in subparagraph (4)(b)(III) to denote "includes." Under this view, the requirement that the repeated communications be "in connection with" the credible threat remains, but the communications and the credible threat need not occur in any particular sequence (i.e., the connected communications can be made before, during or after the threat). For the reasons discussed below, we find this construction more consistent with legislative intent.

When the harassment by stalking statute was first enacted, the phrase "in connection with" occupied its present place in subparagraph (4)(a)(II), but the General Assembly offered no further explanation of the phrase. Se...