People v. Boyd

• Decision Date: 08 February 1982
• Docket Number: No. 80SA267,80SA267
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Steven BOYD and Eric Winkeller, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1

642 P.2d 1

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Steven BOYD and Eric Winkeller, Defendants-Appellees.

No. 80SA267.

Supreme Court of Colorado, En Banc.

Feb. 8, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., William Morris, Laura E. Udis, Asst. Attys. Gen., Denver, for plaintiff-appellant.

Fredric B. Butler, Vail, for defendants-appellees.

DUBOFSKY, Justice.

The People appeal an order of the Eagle County District Court dismissing the county court convictions of the defendants Steven Boyd and Eric Winkeller. ¹ The district court ruled that section 33-31-114, C.R.S.1973 could not serve as a constitutional basis for criminal prosecution of the defendants. We affirm the ruling of the district court.

On June 17, 1979, after several accidents involving individuals riding in inner tubes or rafts on the Eagle River near Avon, one of which resulted in two deaths, the sheriff of Eagle County closed the river to anyone using tubes, rafts, or kayaks. The sheriff's order was based on section 33-31-114, C.R.S.1973, which provides:

"Authority to Close Waters. Any person having the authority to enforce the provisions of this article has the authority to order the occupants of any vessel to wear a life jacket, life belt, or a similar safety device or to order any vessel removed from or to prohibit boating on any waters of this state when, in the opinion of such person, the condition of the water, weather, or the vessel constitutes a hazard to human life and safety."

The sheriff's order was publicized on local radio stations and in local newspapers. It remained in effect until June 30, 1979.

About 7:30 p. m. on June 27, 1979, a Minturn police officer saw two kayakers heading downstream on the Eagle River as it passes through Minturn. Using the public address system in his police car, the officer told the kayakers to get off the river. One of them, the defendant Boyd, paddled to the river bank and told the officer that the sheriff had no right to close the river to kayakers. At trial, Boyd and the other kayaker, the defendant Winkeller, testified that in their opinions the river conditions were perfect for whitewater kayaking. After Boyd's discussion with the officer, the two kayakers continued downstream for another mile and a half to Dowd Junction where they removed their kayaks from the river.

The officer had followed them from Minturn and when they removed their kayaks, he requested that they wait for a deputy sheriff to arrive. The deputy sheriff issued a summons and complaint to each defendant, charging them with violating section 33-6-127(2), C.R.S.1973 which provides:

"Any person convicted of violating any provision of this title (Title 33, Wildlife and Parks and Outdoor Recreation) or any rule or regulation made or adopted under this title for which another penalty is not provided, shall be punished by a fine of not less than twenty-five dollars nor more than three hundred dollars, or by imprisonment in the county jail for not less than ten days nor more than ninety days, or by both such fine and imprisonment."

The next day, the deputy sheriff re-issued the summonses for "kayaking on closed water," this time relying on section 33-31-114. After trial to the court on September 19, 1979, the county court convicted both defendants of violating section 33-31-114 and fined them each $25.00.

On appeal, the district court reversed the defendants' convictions and dismissed the charges on the ground that if section 33-31-114 was meant to be used as a basis for criminal prosecution, it was unconstitutionally vague. We conclude that the statute gives enforcement officials the authority to close a river to boating when the condition of the water constitutes a hazard to human life and safety. However, we also conclude that section 33-31-114 cannot be applied constitutionally to convict the defendants here because the statute contains no express provision making it unlawful to disobey an order closing a body of water. Therefore, we affirm the district court's dismissal of the charges against the defendants.

The defendants argue that the statute does not clearly apprise affected persons that it is unlawful to disobey an order closing the river. We agree. Due process and fundamental fairness require that a statute give a person of ordinary intelligence fair notice that his contemplated conduct is unlawful. U.S.Const. amend. XIV; Colo.Const. art. II, sec. 25; United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); People v. Beruman, Colo., 638 P.2d 789 (1982); People in the Interest of C. M., Colo., 630 P.2d 593 (1981); Holcomb v. City and County of Denver, 199 Colo. 251, 606 P.2d 858 (1980). The fact that a statute empowers authorities to forbid certain acts does not necessarily make those acts punishable by penal sanctions. For such sanctions to apply, an act must first be denominated a crime. A crime "is any social harm defined and made punishable by law." ² (Emphasis added.) Perkins on Criminal Law, p. 9 (1969). Our system of criminal law "does not permit a conviction for what was not clearly recognized as a crime at the time it was done." Id. at 4. Only the General Assembly may declare an act to be a crime. Casey v. People, 139 Colo. 89, 336 P.2d 308 (1959). See People v. Arellano, 185 Colo. 280, 524 P.2d 305 (1974). The judiciary does not have the power to add language to a statute which will make a criminal offense where one does not otherwise appear. Pierce v. United States, 314 U.S. 306, 311, 62 S.Ct. 237, 239, 86 L.Ed. 226 (1941); Cokley v. People, 168 Colo. 280, 450 P.2d 1013, 1015 (1969).

No relevant statutory provision makes punishable as a crime a person's disobedience of an order closing a body of water under section 33-31-114. In the absence of such an express penal provision, the statute cannot be the basis for criminal prosecution of these defendants. The absence of such a prohibitory provision is in marked contrast to other portions of Article 31, Title 33, the article concerning regulation of boating. For example, section 33-31-103, C.R.S.1973 (1981 Supp.) provides that "(i)t is unlawful for any person to operate or use a vessel on the waters of this state unless such vessel has been numbered ...." Section 33-31-105, C.R.S.1973 lists boat safety equipment requirements, and section 33-31-105(18) provides that "(n)o person shall operate or give permission for the operation of a vessel which is not equipped as required by this section." Section 33-31-107, C.R.S.1973 (1981 Supp.), entitled "Prohibited operation," contains several express prohibitions. Subsection (1) provides: "No person shall operate or give permission for the operation of a vessel: ... (c) In a careless manner so as to endanger any person, property, or wildlife." Subsection (2) provides: "No person shall operate a vessel ... while under the influence of alcohol, a controlled substance, ... any other drug which renders him incapable of safely operating a vessel,...