People v. Edmonds

• Decision Date: 15 May 1978
• Docket Number: No. C-1067,C-1067
• Citation: People v. Edmonds, 578 P.2d 655, 195 Colo. 358 (Colo. 1978)
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Charles M. EDMONDS, Respondent.
• Court: Colorado Supreme Court

Page 655

578 P.2d 655

195 Colo. 358

The PEOPLE of the State of Colorado, Petitioner, v.Charles M. EDMONDS, Respondent.

No. C-1067.

Supreme Court of Colorado,En Banc.

May 15, 1978.

Rehearing Denied May 30, 1978.

Dale Tooley, Dist. Atty., Thomas P. Casey, Chief Deputy Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for petitioner.

Carroll & Bradley, John S. Carroll, Denver, for respondent.

HODGES, Justice.

DefendantCharles M. Edmonds was convicted by a jury in county court of second-degree tampering for "making unauthorized connections" with a Mountain States Telephone and Telegraph Company(Mountain Bell) telephone wire, a class 2 misdemeanor.Section 18-4-506, C.R.S.1973.On appeal to the Superior Court, the judgment of conviction was reversed.We granted the district attorney's petition for a writ of certiorari to consider issues raised by the petition.We reverse the judgment of the Superior Court.

In January of 1974, defendant, who was then a state legislator, rented an apartment in Denver.Shortly thereafter, a legislative lobbyist for Mountain Bell informed its security department of rumors that the defendant had connected a telephone in his apartment without the permission of Mountain Bell.The security department performed an electronic search for unauthorized telephones on the telephone line of the apartment manager, but could not detect any irregularities.

Several days later, the lobbyist informed the security department that the defendant's unauthorized telephone connection was still a matter of common knowledge at the capitol.This time Mountain Bell dispatched a repairman to look for unauthorized wires.At the cable connection for the apartment building where the defendant resided, the repairman found that the cable wire connected to the manager's telephone had been rewired to connect it to the defendant's apartment as well.Mountain Bell notified the police.

After the police examined the unusual wiring, they connected a tape recorder to the manager's telephone line.The tape recorder detected and recorded a conversation on that line made outside the manager's apartment by a person who identified himself as Edmonds.

Two days later, a search warrant for the defendant's apartment was issued and executed.The search revealed several electronic tools and a working telephone, which had not been connected in the usual manner.

These items were introduced at trial.Also, at trial, a Mountain Bell employee testified that after searching the company's records he was unable to find any record authorizing telephone service to the defendant's apartment.

The Superior Court reversed the defendant's conviction for several reasons which will be discussed.

I.

The Superior Court ruled that the second-degree tampering statute involved here is unconstitutionally vague and overbroad, in violation of the Fourteenth Amendment of the United States Constitution and of Article II, Section 25 of the Colorado Constitution.The district attorney challenges this ruling.The statute(Section 18-4-506, C.R.S.1973) provides:

"A person commits the crime of second degree tampering if he tampers with property of another, with intent to cause injury, inconvenience, or annoyance to that person or to another, or if he makes unauthorized connections with property of a utility."(Emphasis added.)

In support of the Superior Court's ruling, the defendant argues that the word "unauthorized" is vague because it fails to indicate by whom a connection should be authorized.This argument persuaded the Superior Court.The defendant also argued before the Superior Court and here that there is no statutory definition of the word "connection" and since its common meaning is so broad, the statute is rendered unconstitutionally overbroad.The Superior Court did not address this contention.We are not persuaded by either argument.

Statutes are presumed to be constitutional, and one who attacks a statute has the burden to prove its invalidity.People v. Albo, Colo.,575 P.2d 427(1978);People v. Blue, Colo., 544 P.2d 385(1975);People v. Garcia, Colo., 541 P.2d 687(1975).It is well established that if a statute fairly describes prohibited conduct so that persons of common intelligence can readily apprehend the statute's meaning and application, it is valid and not void for vagueness.E. g., People v. Albo, supra;Howe v. People, 178 Colo. 248, 496 P.2d 1040(1972).

We believe that this statute fairly describes the prohibited conduct in terms sufficiently understandable so that persons who wish to comply with it may do so.SeePeople v. Heckard, 164 Colo. 19, 431 P.2d 1014(1967).The statute does not employ undefined technical terms, but uses ordinary words which a person of common intelligence can understand.SeePeople v. Vinnola, 177 Colo. 405, 494 P.2d 826(1972).

Although the statute does not specify who the authorizing agent is, the mere fact that the statute enumerates "unauthorized" as an element of the offense reasonably notifies every person that authority is required from someone.Here, there was no evidence that the defendant made any attempt to obtain permission or to find out whose permission he needed.More importantly, we believe that a person of common intelligence would not doubt that the statute requires the permission of the utility which owns the property.We will not strain to inject doubt into the meaning of those words.SeeUnited States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228(1975);People v. Albo, supra.

The wording of the second-degree tampering statute resembles the wording of the theft statute, section 18-4-401, C.R.S.1973.In that statute, exercising control over property "without authorization" has been interpreted to mean that the owner of the property, or a person in possession of the property with the owner's consent, has not given the actor permission to exercise control over the property.People v. Diaz, 182 Colo. 369, 513 P.2d 444(1973).The theft statute has been held to be constitutional.People v. Lewis, 180 Colo. 423, 506 P.2d 125(1973);Howe v. People, supra.

We need not rule on the overbreadth argument because the defendant does not have standing to raise it.Unless a challenged statute proscribes acts which overlap constitutionally protected conduct, we will not consider overbreadth arguments made by persons whose conduct is clearly within the terms of the statutory prohibition.People v. Stage, Colo., 575 P.2d 423(1978);People v. Garcia, supra.See alsoBroadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830(1973).The words "unauthorized connections" were clearly intended to reach this situation, in which a person connected to the property of a utility an apparatus which procured the services of the utility without cost.This kind of "free speech" is not within the scope of the protections afforded by the First Amendment, and the defendant does not have standing to challenge the statute.

Relying on People v. Vinnola, supra, andPeople v. Quinn, Colo., 549 P.2d 1332(1976), the Superior Court also concluded that the second-degree tampering statute was constitutionally invalid because it deprived the defendant of due process of law by permitting Mountain Bell to decide if a connection is unauthorized, thereby allowing the utility's actions to be determinative of the criminality of the conduct.The Vinnola analogy, later reaffirmed in Quinn, is misplaced.

In Vinnola, we invalidated a "bad check"statute which made the writing of a check on insufficient funds criminal depending on whether or not the bank honored the check.The bank's decision determined whether the writing of the check was criminal.Here, the authorization of the utility which owns property is required before a person connects anything to the property.Thus, the actor knows beforehand whether his conduct is authorized and, consequently, whether it is criminal.The criminality of the act does not depend upon the subsequent action of a third party, as did the criminality of passing bad checks in Vinnola and Quinn.

The ruling of the Superior Court that the second-degree tampering statute is unconstitutional is therefore reversed.

II.

The defendant argues that he was the victim of Mountain Bell's selective enforcement of the second-degree tampering statute, and therefore the Superior Court's reversal of his conviction was justified.The Superior Court did not rule on this argument.We disagree with the defendant's contention.

Evidence indicated that in the first six months of 1974 Mountain Bell detected 554 unauthorized telephone connections in Colorado.However, Mountain Bell only complained to the police about the defendant's violation and only he was prosecuted.Apparently Mountain Bell has a policy of not prosecuting its subscribers if they attempt to connect additional equipment without permission.All 554 of the detected violations referred to above were such subscriber violations.Further, there was testimony that when Mountain Bell detects an unauthorized connection by a non-subscriber, it routinely turns the case over to the police.

III.

The defendant also argues that the affidavit supporting the search warrant was insufficient under the citizen-informer rule of People v. Glaubman, 175 Colo. 41, 485 P.2d 711(1971), because it failed to list the addresses of the citizen-informers and it did not specify any criminal activity which was witnessed by a citizen-informer.Apparently the Superior Court agreed that the affidavit was insufficient.¹

A sufficient affidavit must set forth underlying circumstances which enable a magistrate independently to judge the validity of the affiant's conclusions, and which indicate that the informer is credible and that the information is reliable.Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637(1969);Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964);People v. Glaubman, ...