People v. Burgandine

• Decision Date: 08 October 2020
• Docket Number: Court of Appeals No. 18CA1072
• Citation: 484 P.3d 739
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James Edward BURGANDINE, Defendant-Appellant.
• Court: Colorado Court of Appeals

484 P.3d 739

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.James Edward BURGANDINE, Defendant-Appellant.

Court of Appeals No. 18CA1072

Colorado Court of Appeals, Division VI.

Announced October 8, 2020

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE DUNN

¶ 1 For seven hours, James Edward Burgandine relentlessly texted and called his ex-girlfriend. Many of the texts and calls contained threats against her and others. A jury found Burgandine guilty of harassment and credible threat stalking.

¶ 2 Burgandine challenges only his stalking conviction, contending the term "contacts" in section 18-3-602(1)(a), C.R.S. 2019 (subsection (1)(a)), under which the prosecution charged him, can't reasonably be interpreted to "include general communications such as phone calls and text messages." He says this is because phone calls and text messages fall under a different subsection of the stalking statute covering "any form of communication," section 18-3-602(1)(b) ( subsection (1)(b) ). And since he was not charged under subsection (1)(b), Burgandine maintains that insufficient evidence supports his credible threat stalking conviction and that we must vacate it. Because we disagree that phone calls and text messages are not "contacts" under subsection (1)(a), we affirm the judgment of conviction.

I. Background

¶ 3 Burgandine and the victim share a son. After their relationship ended, their son lived with the victim. Although they didn't have a court-ordered custody agreement, the parents "work[ed] together" to find time for Burgandine to spend with their son.

¶ 4 But one afternoon in October 2015, after the victim refused his request to see their son, Burgandine embarked on a seven-hour tirade directed at the victim, conducted through phone calls and text messages. Threaded through his texts were misogynistic insults labeling the victim a "whore," "skank," and "cunt." Many of the phone calls and texts threatened violence against the victim and, after she told Burgandine that the police would be called, he threatened violence against the police as well.

¶ 5 The prosecution charged Burgandine with harassment, credible threat stalking, and emotional distress stalking. The jury convicted him of the first two charges but acquitted him of the third. The court then sentenced him to three years of supervised probation with ninety days to be served in jail.

II. Discussion

A. Standard of Review and Statutory Construction

¶ 6 Where, as here, a sufficiency challenge requires us to interpret a statute de novo, we must give effect to the legislature's intent. Williams v. People , 2019 CO 101, ¶ 19, 454 P.3d 219 ; see also People v. Carian , 2017 COA 106, ¶ 8, 414 P.3d 34. To determine that intent, we start with the language of the statute, giving words their plain and ordinary meanings. People v. Burnett , 2019 CO 2, ¶ 20, 432 P.3d 617 ; People v. Serra , 2015 COA 130, ¶ 26, 361 P.3d 1122. If the plain language is clear and unambiguous, we apply the statute as written. Burnett , ¶ 20 ; Carian , ¶ 14.

¶ 7 When possible, we give consistent, harmonious, and sensible effect to each part of the statute. People v. Gallegos , 2013 CO 45, ¶ 7, 307 P.3d 1096 ; People v. Banks , 9 P.3d 1125, 1127 (Colo. 2000). And while we avoid constructions that render any words or phrases superfluous, People v. Null , 233 P.3d 670, 679 (Colo. 2010), we also avoid interpretations that "defeat legislative intent or lead to absurd results," Mosley v. People , 2017 CO 20, ¶ 16, 392 P.3d 1198.

B. The Credible Threat Stalking Statute

¶ 8 A person commits credible threat stalking when he, either directly or indirectly through a third party, knowingly

(a) [m]akes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person ... ; or

(b) [m]akes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person, ... regardless of whether a conversation ensues.

§ 18-3-602(1) (emphasis added).

¶ 9 At trial, the prosecutor argued that Burgandine's phone calls and text messages to the victim were "contacts" under subsection (1)(a). The prosecutor did not argue that Burgandine followed, approached, or placed the victim under surveillance. Nor did the People charge Burgandine under subsection (1)(b).

C. Interpretation of "Contacts"

¶ 10 Because the statute doesn't define "contacts" and Burgandine doesn't dispute that it's a common term, we begin with the dictionary definition. See Cowen v. People , 2018 CO 96, ¶ 14, 431 P.3d 215 (in the absence of a statutory definition "we may consider a definition in a recognized dictionary"); see also People v. Devorss , 277 P.3d 829, 837 (Colo. App. 2011) (" ‘[C]ontact’ is a common term.").

¶ 11 "Contact" is defined as "to make connection with" and "get in communication with," including instances of "establishing communication with someone," "touching or meeting," and "meeting, connecting, or communicating." Webster's Third New International Dictionary 490 (2002).

¶ 12 The definition is broad but clear, and it plainly includes general communications. Indeed, we are not the first court to recognize this plain meaning. Serra , ¶¶ 24-34 (interpreting "contact" in the context of a no-contact order to include "some element of direct or indirect communication, or attempted communication"); see also Cooper v. Cooper , 144 P.3d 451, 457-58 (Alaska 2006) (" ‘Contacting,’ as a verb, means in common usage physically touching or communicating."); Johnson v. State , 264 Ga. 590, 449 S.E.2d 94, 96 (1994) ("To ‘contact’ is readily understood by people of ordinary intelligence as meaning ‘to get in touch with; communicate with.’ " (quoting American Heritage Dictionary (3d ed. 1992))) (alteration omitted).¹

¶ 13 Because Burgandine doesn't dispute that phone calls and text messages are communications, applying the plain and ordinary meaning of the word would normally end our inquiry. See Cowen , ¶ 12 ("[I]f the language in a statute is clear and unambiguous, we give effect to its plain meaning and look no further.").

¶ 14 But Burgandine asks us to look beyond the common meaning because applying it renders "any form of communication" in subsection (1)(b) redundant. To avoid surplusage, Burgandine says we must read the term in context by applying the noscitur a sociis canon and considering the legislative history which, according to him, support a "more narrow" interpretation of "contacts" that requires "some sort of physical proximity" (and necessarily excludes phone and text message communications).²

¶ 15 In so arguing, Burgandine effectively contends that the resulting redundancy from applying the plain and common meaning of "contacts" is unsound and creates ambiguity that must be resolved through interpretative methods. See People v. Goodale , 78 P.3d 1103, 1107 (Colo. 2003) (recognizing we look to interpretive rules and legislative history only where ambiguity exists). And because the plain and common meaning does result in redundancy, we consider his arguments.

1. Noscitur a Sociis

¶ 16 Under the noscitur a sociis canon, "a word is known by the company it keeps." Gustafson v. Alloyd Co. , 513 U.S. 561, 575, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) ; accord St. Vrain Valley Sch. Dist. RE-1J v. A.R.L. by & through Loveland , 2014 CO 33, ¶ 22, 325 P.3d 1014. Relying on this canon, Burgandine argues that because all the other types of stalking conduct listed in subsection (1)(a) — "follows," "approaches," and "places under surveillance" — involve a victim's physical location, and two of them ("follows" and "approaches") require "physical proximity," to avoid redundancy, "contacts" "must be similarly construed as requiring some sort of physical proximity" to the alleged victim. We see several problems with Burgandine's proposed interpretation.

¶ 17 First, we don't agree with Burgandine that the other stalking conduct listed in subsection (1)(a) "denote being within the immediate [or physical] proximity" of a victim. Of the three companion stalking actions, only one — "approaches" — implies any proximity, but even that term doesn't require "physical" or "immediate" proximity. And as to the other two stalking actions, technology being what it is, one may surveil or follow a person without ever being physically near them, let alone in their "immediate proximity." See People v. Brown , 2014 COA 130M, ¶ 49, 342 P.3d 564 ("A defendant need not be physically present to conduct surveillance ...."); People v. Sullivan , 53 P.3d 1181, 1184 (Colo. App. 2002) (construing "surveillance" in subsection (1)(a) to include electronic surveillance); cf. State v. Lee , 82 Wash.App. 298, 917 P.2d 159, 164 (1996) (interpreting "follows" as not being limited to "trail[ing]" or "tail[ing]" the victim but to include movement deliberately correlated to the movements of another), aff'd , 135 Wash.2d 369, 957 P.2d 741 (1998).

¶ 18 Second, we are not persuaded that section 18-3-602(1)(c) ( subsection (1)(c) ), "reinforces" Burgandine's interpretation. That subsection addresses emotional distress stalking and lists all stalking conduct from subsection (1)(a) and subsection (1)(b). Because the list includes "contacts" and "any form of communication," Burgandine asserts that "contacts" "must have a more narrow meaning." To be sure, we generally presume that when the legislature uses different words it intends each to mean something different. Colo. Med. Bd. v. Office of Admin. Courts , 2014 CO 51, ¶ 19, 333 P.3d 70. But that doesn't always hold true. "Redundancies are common in statutory drafting — sometimes in a [legislative] effort to be doubly sure, sometimes because of [legislative] inadvertence or lack of...