People v. Cross, No. 05SC17.

• Decision Date: 17 January 2006
• Docket Number: No. 05SC17.
• Citation: 127 P.3d 71
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Brian CROSS, Respondent.
• Court: Colorado Supreme Court

Page 71

127 P.3d 71

The PEOPLE of the State of Colorado, Petitioner, v. Brian CROSS, Respondent.

No. 05SC17.

Supreme Court of Colorado, En Banc.

January 17, 2006.

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Petitioner.

David S. Kaplan, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, for Respondent.

HOBBS, Justice.

We granted certiorari to review the court of appeals' judgment in People v. Cross, 114 P.3d 1 (Colo.App.2004), on the issue of the correct jury instruction for the crime of harassment by stalking under section 18-9-111(4)(b)(III), C.R.S. (2005).¹ A jury convicted Brian M. Cross ("Cross") of harassment by stalking — credible threat, contrary to section 18-9-111(4)(b)(I), C.R.S. (2005), and harassment by stalking — serious emotional distress, contrary to section 18-9-111(4)(b)(III), C.R.S. (2005).² The court of appeals set aside both convictions and remanded for a new trial on issues that are not before us on certiorari review.

The issue before us is whether the court of appeals was correct in ruling that the "knowingly" mens rea of section 18-9-111(4)(b)(III) applies to the statutory phrase "in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person ... to suffer serious emotional distress." The prosecution contends that "knowingly" is limited to the statutory language that immediately follows it: "[r]epeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with that person." We agree.

Contrary to the court of appeals' reformulation of the trial court's jury instruction, the General Assembly intended not to impose a requirement under section 18-9-111(4)(b)(III) that a defendant was aware his or her conduct would cause a reasonable person to suffer serious emotional distress. The trial court's instruction correctly submitted the charge to the jury. Accordingly, we disapprove of the jury instruction the court of appeals required to be given on retrial, and reverse its judgment on this point.

I.

The court of appeals held that there was sufficient evidence for the jury to find that Cross stalked the female victim at a shopping mall where she worked in a phone sales-kiosk. Cross went to the shopping center almost daily and spent several hours sitting on benches near the kiosk and circling it. It became apparent to other mall employees and the victim that Cross targeted the victim. Feeling threatened and suffering from serious emotional distress, the victim attempted to use different doors to enter and leave the mall, had her husband drive her to and pick her up from work, and asked her supervisor to modify her work schedule. None of this altered the ways in which Cross pursued her.

On one occasion, Cross approached the kiosk, tapped on it, smiled or smirked at the victim, and watched her for approximately two-and-one-half hours. That night, the victim attended a church service with her family. Cross appeared and watched her until her husband arrived; then he left but reappeared at her work place the next two days. The victim complained to the police. They arrested Cross on a parole violation for another stalking case and ultimately charged him with stalking in this case.

The jury convicted Cross of harassment by stalking — credible threat, contrary to section 18-9-111(4)(b)(I), C.R.S. (2001), and harassment by stalking — serious emotional distress, contrary to section 18-9-111(4)(b)(III), C.R.S. (2001). The trial court sentenced him to twenty-four years in the Department of Corrections and five years mandatory parole.

The court of appeals reversed both convictions and remanded for retrial because "the trial court erred in admitting evidence of [another stalking] conviction and instructing the jury that it was an element of harassment by stalking, section 18-9-111(4)(b)(I), (III), a class 4 felony." Cross, 114 P.3d at 4.

The trial court and the court of appeals differed over the correct jury instruction for the harassment by stalking — serious emotional distress offense under section 18-9-111(4)(b)(III). For the reasons stated in this opinion, we hold that the trial court's jury instruction correctly follows the statutory wording and accords with the General Assembly's intent.

II.

Contrary to the court of appeals' reformulation of the trial court's jury instruction, the General Assembly intended not to impose a requirement under section 18-9-111(4)(b)(III) that a defendant was aware his conduct would cause a reasonable person to suffer serious emotional distress.

A. Standard of Review

We review issues of statutory construction de novo. CLPF-Parkridge One, L.P. v. Harwell Invs., Inc., 105 P.3d 658, 661 (Colo.2005); Colo. Dep't of Labor & Employment v. Esser, 30 P.3d 189, 194 (Colo.2001). Our job is to effectuate the General Assembly's intent. CLPF-Parkridge One, 105 P.3d at 660. We look first to the plain text of a statute, reject interpretations that render words or phrases superfluous, and harmonize potentially conflicting provisions, if possible. Id.; Denver Publ'g Co. v. Bd. of County Comm'rs, 121 P.3d 190, 195 (Colo.2005). We do not add or subtract statutory words that contravene the legislature's obvious intent. Esser, 30 P.3d at 195.

Often the best guide to legislative intent is the context in which the statutory provisions appear and any accompanying statement of legislative policy. People v. McKinney, 99 P.3d 1038, 1043 (Colo.2004); Esser, 30 P.3d at 195; Common Sense Alliance v. Davidson, 995 P.2d 748, 755 (Colo.2000).

We also consider the consequences of a particular construction and avoid constructions that produce illogical or absurd results. Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo.2005); Leonard v. McMorris, 63 P.3d 323, 326 (Colo.2003).

The power to define criminal conduct and to establish the legal components of criminal liability is vested in the General Assembly. Copeland v. People, 2 P.3d 1283, 1286 (Colo.2000). The mens rea of a statute may speak to conduct, or to circumstances, or to result, or to any combination thereof, but not necessarily to all three.³ Id. Ordinarily, the mental state a statute defines applies to all elements of the offense unless legislative intent to limit its application clearly appears. § 18-1-503(4), C.R.S. (2005); People v. Coleby, 34 P.3d 422, 424 (Colo.2001).

Under this rule and its exception, we must carefully consider whether the legislature intended that the express or necessarily-implied culpable mental state of the offense applies only to certain elements. Gorman v. People, 19 P.3d 662, 667 (Colo.2000) (holding that "knowingly" mens rea for offense of contributing to delinquency of a minor does not apply to require that defendant know the victim's age); Copeland, 2 P.3d at 1287 (holding that "knowingly" or "recklessly" mens rea of arson offense does not require that defendant be aware of or intended the consequences of starting or maintaining the fire); People v. Noble, 635 P.2d 203, 210 (Colo.1981) (holding that "knowingly" mens rea of child abuse offense does not apply to require defendant's awareness that his conduct is practically certain to cause the proscribed result but, rather, applies only to defendant's general awareness of the abusive nature of the conduct in relation to the child or awareness of the circumstances of the act against the child).

In order to avoid interpreting the statute in a way that defeats legislative intent, we must give effect to the ordinary meaning of the language and read the provisions as a whole, construing each consistently and in harmony with the overall statutory design, if possible. Whitaker v. People, 48 P.3d 555, 558 (Colo.2002) (holding that statutory design precluded construction requiring defendant to be aware of the quantity of drugs he imported).

B.

History of Section 18-9-111(4)(b)(III)

Prior to 1999, the Colorado stalking statute included only "credible threat" provisions. § 18-9-111(4)(b)(I), (II), C.R.S. (2005). During its 1999 session, the General Assembly added to the statutorily defined stalking offenses the offense of harassment by stalking — serious emotional distress. § 18-9-111(4)(b)(III); see 1999 Colo. Sess. Laws, Ch. 215, sec. 1, at 793, 800.

Section 18-9-111(4)(b)(III), C.R.S. (2005), provides as follows:

(b) A person commits stalking if directly, or indirectly through another person, such person knowingly:

...

(III) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress.

(emphasis added).

This form of the stalking offense does not contain the "credible threat" element. Rather, it focuses on behavior and provides that a stalker commits a crime if he or she repeatedly follows, approaches, places under surveillance, or communicates with a victim in a manner that would cause a reasonable person to suffer serious emotional distress and the defendant's conduct causes the victim serious emotional distress.

At the same time it adopted section 18-9-111(4)(b)(III), the legislature adopted an extensive statement of purpose:

The general assembly hereby finds and declares that stalking is a serious problem in this state and nationwide. Although stalking often involves persons who have had an intimate relationship with one another, it can also involve persons who have little or no past relationship. A stalker will often...