People v. Gibson

• Decision Date: 15 April 1974
• Docket Number: Nos. 25908 and 25845,s. 25908 and 25845
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. George E. GIBSON, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 774

521 P.2d 774

184 Colo. 444

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. George E. GIBSON, Defendant-Appellee.

Nos. 25908 and 25845.

Supreme Court of Colorado, En Banc.

April 15, 1974.

Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief App. Deputy Dist. Atty, Denver, for plaintiff-appellant.

Milnor H. Senior, P.C., Denver, for defendant-appellee.

Paul H. Hunter, Denver, Milo N. Gonser, Lakewood, William F. Reynard, Denver, amicus curiae, for American Civil Liberties Union of Colorado.

GROVES, Justice.

George E. Gibson, the appellee, was charged with violating 1971 Perm.Supp., C.R.S.1963, 40--9--113(2)(c) which provides:

'A person commits a class 1 Petty offense if he:

Loiters for the purpose of engaging or soliciting another person to engage in . . . deviate sexual intercourse.'

Prior to trial the county court held the statute unconstitutional and granted appellee's motion to dismiss. The People have now brought this appeal. We affirm.

This direct appeal from the county court was permitted under C.R.S.1963, 39--7--26(2), but this (and all of chapter 39) were repealed in 1972. Chap. 44, § 1 Colo.Sess.Laws, 1972. Section 26(2) was not reenacted. There is pending here another direct appeal from a Denver County Court determination of unconstitutionality of a criminal statute. People v. Garcia, Supreme Court No. 26320. Time for appeal to the Superior Court has expired in both cases. We, in effect, suspend the rules and take jurisdiction of these two cases in order that the issues of constitutionality may be determined on review. Absent a legislative change or change in our Rules of Criminal Procedure in this respect, future appeals should be to the district courts, except as to the City and County of Denver it shall be to the Superior Court.

As pointed out by the People, in Arnold v. City and County of Denver, 171 Colo. 1, 464 P.2d 515 (1970), we made the critical distinction between an unconstitutional loitering statute which involves merely status and a constitutional one which couples status with an overt act. We cited the following language from Goldman v. Knecht, 295 F.Supp. 897 (D.Colo.1969):

"Conceivably, loitering or strolling on public property which obstructs the orderly government process would be offensive, and conceivably loitering and strolling about, when coupled with preparation to commit a criminal offense or with interference with the activities of others, might be within the scope of legislative prohibition, But the statute does not require the loitering or strolling to be associated with any other conduct." (Emphasis added.)

The statute now before us suffers from the same infirmity as the vagrancy statute held unconstitutional in Goldman. The statute fails to require the loitering to be coupled with any other overt conduct. Rather, the loitering need only be coupled with the state of mind of having 'the purpose of engaging or soliciting another person to engage in . . . deviate sexual intercourse.' We now reaffirm our acceptance of the Goldman rationale and hold that 1971 Perm.Supp., C.R.S.1963, 40--9--113(2)(c) does not satisfy constitutional due process requirements.

The People have cited to us the rule that if a statute is fairly susceptible of two interpretations, one of which is constitutional and the other unconstitutional, a reviewing court must construe the statute so as to render it constitutional. If the statute is to be construed at face value, as we have done, it is susceptible to but one interpretation. The result is that it is unconstitutional.

The People have suggested that we interpret the statute so that it prohibits loitering only when the loitering is coupled with the overt act of solicitation. The problems with the People's suggested construction are twofold. First, it would require this court to usurp a legislative function, and secondly, it would render the statute inconsistent with at least one other section of the Criminal Code. 1971 Perm.Supp., C.R.S.1963, 40--2--301 provides that 'a person is guilty of criminal solicitation if he commands, induces, entreats, or otherwise attempts to persuade another person to commit a Felony.' (Emphasis added.) The old Criminal Code did make it a felony to engage in 'unnatural carnal copulation committed per anus or per os.' C.R.S.1963, 40--2--31(1). Under the new Criminal Code, however, it is no longer a crime of any sort, much less a felony, to engage in consensual deviate sexual intercourse. The statutory comment on 1971 Perm.Supp., C.R.S.1963, 40--3--401 to 40--3--411 states that '(v)oluntary participation in deviate sexual acts is not made a crime.'

Additionally, under the old Code, '(t)he solicitation of any unnatural carnal copulation' was made a crime. C.R.S.1963, 40--2--31(2). Under the new Code solicitation for deviate sexual intercourse is no longer prohibited. Thus, the People's construction would produce the following inconsistencies within the Code: (1) under the solicitation statute a crime occurs only when one entices another to commit a Felony, while 40--9--113(2)(c) would make it illegal to solicit another for a noncrime; (2) the new Code legalized solicitation for deviate sexual intercourse, while 40--9--113(2)(c) would prohibit the same solicitation if coupled with loitering. Because the People's construction would force us in effect to amend the statute, and because the construction would produce inconsistencies within the Code, we are obliged not to make this construction.

Judgment affirmed.

PRINGLE, C.J., and HODGES and KELLEY, JJ., dissent.

HODGES, Justice (dissenting):

I respectfully dissent. By declaring the subject portion of 1971 Perm.Supp., C.R.S.1963, 40--9--113(2)(c) unconstitutional, the majority of this court has, in my judgment, taken away a portion of the legislative prerogative to define and render illegal certain offensive conduct. This is accomplished by what I would describe as a strained and overly technical interpretation of said provision of law which makes it a class I petty offense for a person to loiter in a public place for the purpose of engaging or soliciting another person to engage in deviate sexual intercourse.

The majority opinion declares that this statute makes status alone punishable as a criminal offense and therefore under the authority of Arnold v. City and County of Denver, 171 Colo. 1, 464 P.2d 515 (1970) and Goldman v. Knecht, 295 F.Supp. 897 (D.Colo.1969), the statute is unconstitutional. In Arnold, the vagrancy ordinance of the City and County of Denver was declared unconstitutional because it made the status of being a vagrant a crime. In Goldman, the Colorado vagrancy statute was declared unconstitutional for the same reason; however, it was recognized therein that conceivably loitering on public property when coupled with some other offensive activity, such as preparation to commit a criminal offense or interference with the activities of others, would be within the scope of legislative prohibition. In Goldman, because the Colorado statute on vagrancy did not require that the loitering be associated with any other such conduct, it was held to be constitutionally invalid as not satisfying due process and equal protection requirements.

It appears obvious that the main legislative intent behind this enactment was to punish the overt act of solicitation while loitering in a public place. All reasonable intentments must be indulged to support the constitutionality of legislative acts. People v. Trujillo, Colo., 497 P.2d 1 (1972). In applying this general rule of s...