People v. Gross, 91SA197

Decision Date20 April 1992
Docket NumberNo. 91SA197,91SA197
Citation830 P.2d 933
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Glenn Douglas GROSS, Defendant-Appellee.
CourtColorado Supreme Court

Alexander M. Hunter, Dist. Atty., William F. Nagel, Deputy Dist. Atty., Boulder, for plaintiff-appellant.

David F. Vela, State Public Defender, Martin J. Gerra, III, Deputy State Public Defender, Denver, for defendant-appellee.

Justice LOHR delivered the Opinion of the Court.

The People appeal from a judgment of the Boulder County District Court granting the motion of the defendant, Glenn Douglas Gross, to dismiss a charge of possession of a weapon by a previous offender. See § 18-12-108, 8B C.R.S. (1986). The court ruled that the statutory definition of the type of weapon on which the charge was based is unconstitutionally vague and overbroad and that the State lacks the police power to proscribe activities included within the statutory prohibition. We conclude that the statute as properly construed is consistent with constitutional requirements, and therefore reverse and remand for further proceedings.


A summary of the facts will provide useful context for addressing the constitutional issues presented for review. 1 On September 22, 1981, a Wyoming court convicted the defendant of the felony offense of aggravated assault and battery with a deadly weapon. Seven years later, after serving his sentence in the Wyoming State Penitentiary, the defendant came to Colorado, where the events giving rise to the present case transpired.

On the night of November 22, 1990, Boulder police officers observed the defendant driving a motor vehicle and braking in a careless manner. They knew him and believed that his driver's license was suspended. The officers also knew that the defendant had exhibited hostility in prior encounters with Boulder police officers.

The officers stopped the defendant's vehicle, and an officer directed the defendant to get out. Before complying, the defendant turned his back on the officer and reached under the car seat. He withdrew a sixteen-inch screwdriver, which he hid from the officer's view. The officer told the defendant to put his hands where they could be seen and again directed him to step out of the car. The defendant slowly got out of the car, and continued to position himself to block the officer's view of the screwdriver. The officer drew his gun and told the defendant to drop what he was holding. The defendant moved toward the officer, notwithstanding commands to stop, and assumed an offensive posture, staring at the officer and keeping the object in his hand hidden from view. During the course of these events, one of the other officers also drew his gun. Eventually, the defendant ended the standoff by dropping the screwdriver to the ground.

The police officers then took the defendant into custody. During the time when he was in custody, the defendant made threatening statements directed at the officer who had ordered him out of the car and at police officers in general. He also commented that he had thought about jabbing the officer in the face with the screwdriver. Further evidence suggested that on other occasions the defendant had carried the screwdriver on his person as a means of intimidation.

On the basis of the foregoing encounter with police officers, the defendant was charged with possession of a weapon by a person previously convicted of a felony. See § 18-12-108, 8B C.R.S. (1986). The charging instrument characterized the weapon as "a knife; namely a screwdriver approximately 16" in total length, capable of inflicting cutting, stabbing or tearing wounds." 2 The defendant moved to dismiss the charge on the basis that the statute on which the charge was based is vague and overbroad, and that the statutory prohibition exceeds the police power of the State. The district court granted the motion. After trial of the other charges, the prosecution brought this appeal, pursuant to section 16-12-102(1), 8A C.R.S. (1986), which requires the prosecution to appeal any decision adjudging any act of the general assembly unconstitutional in a criminal case. 3


The statute under which the defendant was charged, section 18-12-108, 8B C.R.S. (1986), provides as follows:

Any person previously convicted of burglary, arson, or a felony involving the use of force or violence or the use of a deadly weapon, or attempt or conspiracy to commit such offenses, under the laws of the United States of America, the state of Colorado, or another state, within the ten years next preceding or within ten years of his release or escape from incarceration, whichever is greater, who possesses, uses, or carries upon his person a firearm or other weapon mentioned in section 18-1-901(3)(h) or sections 18-12-101 to 18-12-106 commits a class 5 felony. A second or subsequent offense under this section is a class 4 felony.

One of the weapons mentioned in section 18-12-101 is a "knife," which is assigned the following definition:

"Knife" means any dagger, dirk, knife, or stiletto with a blade over three and one-half inches in length, or any other dangerous instrument capable of inflicting cutting, stabbing, or tearing wounds, but does not include a hunting or fishing knife carried for sports use. The issue that a knife is a hunting or fishing knife must be raised as an affirmative defense.

§ 18-12-101(1)(f), 8B C.R.S. (1986) (emphasis added).

The argument on the motion to dismiss centered on the constitutional sufficiency of the emphasized portion of the definition of "knife." In dismissing the charge, the district court adopted the reasons for invalidity asserted by the defendant in his written motion, as follows:

1. The statute does not further a legitimate governmental purpose and prohibits activity not properly subject to the police power.

2. The statute is vague and indefinite in violation of the requirements of due process of the Colorado and United States Constitutions.

3. The statute is overbroad in violation of the First and Fourteenth Amendments of the Constitution of the United States and Article II, Section 25 of the Constitution of Colorado.

The issues before us therefore are whether the emphasized part of the definition of "knife" is unconstitutionally vague or overbroad and whether the legislature acted within the scope of the police power in prohibiting the possession of such a "knife" by persons previously convicted of certain felonies. 4


Preliminarily, we recognize that section 18-12-108 has survived prior constitutional attacks on various grounds. People v. Tenorio, 197 Colo. 137, 142, 590 P.2d 952, 956 (1979) (upholding statute against challenges based on unconstitutional delegation of power to define crimes, and equal protection of the laws); People v. Blue, 190 Colo. 95, 102, 544 P.2d 385, 390 (1975) (upholding statute against certain vagueness, overbreadth, and right to bear arms challenges); see also People v. Marques, 179 Colo. 86, 87, 498 P.2d 929 (1972) (upholding statute's predecessor against equal protection, and right to bear arms challenges); People v. Trujillo, 178 Colo. 147, 150-51, 497 P.2d 1, 2-3 (1972) (upholding statute's predecessor against challenge that it violated equal protection by prohibiting persons convicted of certain felonies, but not all felonies, from carrying concealed weapons). The precise vagueness, overbreadth, and police power issues raised by the defendant in the present case, however, have not previously received our attention. We first address the vagueness challenge. We then consider together the somewhat related contentions that the statute is void for overbreadth and cannot be supported as a valid exercise of the police power.


Familiar principles guide us in addressing a challenge to a statute as unconstitutionally vague in violation of the Due Process Clauses of the United States and Colorado Constitutions. See U.S. Const. amend. XIV, § 1; Colo. Const. art. II, § 25. Although we must closely scrutinize any statute asserted to be impermissibly vague, every statute is presumed to be constitutional. People v. Schoondermark, 699 P.2d 411, 415 (Colo.1985). It is the burden of a party attacking a statute to prove unconstitutionality beyond a reasonable doubt. E.g., People v. Rosburg, 805 P.2d 432, 439 (Colo.1991); People v. Revello, 735 P.2d 487, 489 (Colo.1987).

The essential inquiry in addressing a void for vagueness challenge is whether the statute "forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application." People v. Becker, 759 P.2d 26, 31 (Colo.1988); accord, e.g., People ex rel. City of Arvada v. Nissen, 650 P.2d 547, 550 (Colo.1982) (citing Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127-28, 70 L.Ed. 322 (1926)). This requirement of reasonable definiteness serves two important purposes. It provides assurance that a penal statute gives fair warning of proscribed conduct so that persons may guide their actions accordingly. Regency Servs. Corp. v. Bd. of County Comm'rs, 819 P.2d 1049, 1055 (Colo.1991); People v. Batchelor, 800 P.2d 599, 603 (Colo.1990); Nissen, 650 P.2d at 550. It also ensures that statutory standards are sufficiently specific so that police officers, prosecutors, judges, and juries can avoid arbitrary and discriminatory application. Schoondermark, 699 P.2d at 415; Nissen, 650 P.2d at 550. These two purposes of the reasonable definiteness requirement have long been recognized in a myriad of cases. E.g., Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972); High Gear & Toke Shop v. Beacom, 689 P.2d 624, 630 (Colo.1984).

Mathematical precision in legislative draftsmanship is not necessary, however, to satisfy due process standards. People v. Ford, 773 P.2d 1059, 1067 (Colo.1989); Blue, 190 Colo. at 99, 544...

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