People v. Hickman, No. 98SA29.

• Docket Nº: No. 98SA29.
• Citation: 988 P.2d 628
• Case Date: November 08, 1999
• Court: Supreme Court of Colorado

988 P.2d 628

PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Glen HICKMAN, Defendant-Appellee

No. 98SA29.

Supreme Court of Colorado, En Banc.

November 8, 1999.

Rehearing Denied November 29, 1999.

988 P.2d 632

Frank J. Daniels, District Attorney, Twenty-First Judicial District, Richard B. Tuttle, Deputy District Attorney, Grand Junction, Colorado, Attorneys for Plaintiff-Appellant

David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, Colorado, Attorneys for Defendant-Appellee.

Justice BENDER delivered the Opinion of the Court.

In this case, the People appeal a decision by the Mesa County District Court dismissing charges against Glen Hickman. The People charged Hickman with one count of Retaliation Against a Witness or Victim, in violation of section 18-8-706, 6 C.R.S. (1998). Ruling that the statute was unconstitutionally overbroad and vague, the trial court dismissed the charge. We have jurisdiction to consider this appeal pursuant to section 13-4-102(1)(b), 5 C.R.S. (1998), and section 16-12-102(1), 6 C.R.S. (1998). We conclude that the term "act of harassment" in the statute is overbroad, but hold that section 18-8-706 is otherwise constitutional. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

I. FACTS AND PROCEEDINGS BELOW

The defendant, Glen Hickman, was married to Keri Johnson for three years, from 1994 through 1997. Johnson had a daughter from a previous relationship, and Hickman and Johnson had a son together. Johnson filed for divorce in January 1997, after Hickman allegedly sexually assaulted Johnson's daughter. After this time, Hickman saw his son several times a week in supervised visitations. During the divorce proceedings, Hickman and Johnson argued over the custody of and visitation arrangements for their son.

Hickman was initially charged with sexually assaulting a child, his step-daughter. Johnson was a prosecution witness in a hearing concerning this sexual assault charge. Approximately one month after she testified at the hearing and five days before Johnson was scheduled to testify at the jury trial concerning the sexual assault charge, Hickman allegedly set off a firecracker near Johnson's home. The People contend that he then called her and said, "The next one's gonna blow your head off," and, "Hope you sleep well after that." There was no evidence that the firecracker caused any physical harm or property damage.

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The defendant was charged with one count of Retaliation Against a Witness or Victim, a class 3 felony, in violation of Colorado Revised Statutes section 18-8-706. This statute provides

An individual commits retaliation against a witness or victim if such person uses a threat, act of harassment, or act of harm or injury upon any person or property, which action is directed to or committed upon a witness or a victim to any crime, an individual whom the person believes has been or would have been called to testify as a witness or victim, a member of the witness' family, a member of the victim's family, an individual in close relationship to the witness or victim, an individual residing in the same household with the witness or victim, as retaliation or retribution against such witness or victim.

§ 18-8-706(1), 6 C.R.S. (1998).

Hickman denies the allegations, but argues that even if they were true, the statute is unconstitutional. Hickman does not argue that the statute is unconstitutional as applied to him, but only that the statute is unconstitutionally overbroad and vague on its face.

The trial court agreed with Hickman's position and dismissed the retaliation count, reasoning that section 18-8-706 was unconstitutionally overbroad and void for vagueness as a result of amendments made to the statute in 1992. The trial court found that the amendments to the statute created an overbreadth problem because certain terms that were added to and deleted from the statute impermissibly extended the scope of the statute to constitutionally protected communication. The trial court also found that the 1992 amendments to the statute rendered the statute unconstitutionally vague because the amended statute failed to provide adequate notice of what conduct was prohibited by the statute.

In the 1992 amendments, the General Assembly added the terms "threat" and "act of harassment," and deleted the word "intentionally" along with the phrase "for giving testimony in any official proceeding." See ch. 73, sec. 20, § 18-8-706, 1992 Colo. Sess. Laws 396, 405.¹ Because the added terms were not defined in the statute or clearly limited, the trial court reasoned that the statute could prohibit communications that were perceived as a "threat" or as "harassment," but were nonetheless constitutionally protected by the First Amendment.² See U.S. Const. amend. I.

The trial court also found that the deletion of the terms from the statute increased the statute's sweep, because without an express provision establishing the culpable mental state required for this crime it was unclear exactly what conduct the legislature sought to prohibit. The trial court interpreted these amendments to mean that the prohibited retaliation or retribution was not required to be in response to the person's "giving testimony in any official proceeding." Under this statutory interpretation, the accused's actions might concern a matter unrelated to the person's testimony in a criminal proceeding.

According to the trial court's analysis, the amended statute is unconstitutionally overbroad because the statute criminalizes activities that are beyond the scope of governmental regulation. The statute would prohibit, for example: making a threat to report or prosecute perjury by a witness; making a threat to initiate a boycott or other legal collective action process because of false testimony during a trial concerning illegal action by union membership during a strike; or picketing the home or workplace of a witness who lied during a trial with signs calling the

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witness a liar. The trial court additionally held that the statute was void for vagueness, reasoning that the statute failed to give fair warning to citizens as to what conduct was prohibited and thereby gave law enforcement unbridled discretion to decide whether a crime had been committed. Thus, the trial court held the statute unconstitutional and granted the defendant's motion to dismiss

The People argue that the trial court erred in concluding that section 18-8-706 is unconstitutionally overbroad and vague. We agree in part with the People's contention, and we affirm in part and reverse in part the trial court's ruling.³

II. ANALYSIS

A. OVERVIEW

Although the trial court examined the statute's constitutionality only as applied to cases involving retaliation against witnesses who testified in earlier criminal proceedings, the statute has a wider scope. Section 18-8-706 protects persons who fall in any of several classifications, including: (1) a witness to a crime; (2) a victim of a crime; (3) an individual who the defendant believes has been or would have been called to testify as a witness or a victim; and (4) a person in a close personal relationship to the witness or victim of a crime. See § 18-8-706. This statute applies to any actions by an accused that are in retaliation against a person for that person's membership or perceived membership in one of these classes. See id. We examine section 18-8-706 as applied to all of the classes of persons protected by the statute, not simply witnesses who have already testified in earlier proceedings. For the sake of convenience, we refer to these classes of people as the "persons protected by the statute" or "protected classes."

Hickman challenges section 18-8-706 as unconstitutionally overbroad and vague.⁴ We note as an initial matter that statutes are presumed to be constitutional, and "the party challenging [a statute's] validity has the burden of proving unconstitutionality beyond a reasonable doubt." People v. Janousek, 871 P.2d 1189, 1195 (Colo.1994). For us to invalidate a statute, it must be sufficiently infirm so that no limiting construction consistent with the legislature's intent will preserve its constitutionality. See Whimbush v. People, 869 P.2d 1245, 1248 (Colo.1994).

When construing a statute, we are guided by several basic principles of statutory interpretation. Our goal is to ascertain and carry out the intent of the legislature. See Baer, 973 P.2d at 1228. To this end, "[w]ords and phrases used in statutes are to be interpreted according to their generally accepted meaning." Janousek, 871 P.2d at 1196. "Where the statutory language leaves doubt as to its meaning, we may examine other sources of legislative intent, including the legislature's objective, the circumstances surrounding the enactment, and the consequences of a particular construction." Baer, 973 P.2d at 1228.

Thus, we test section 18-8-706 for unconstitutional overbreadth and vagueness by examining the plain meaning of the words "threat" and "act of harassment" as used in the statute, as well as the effect of the deletion of certain terms from the statute. The

988 P.2d 635

legislative history of the 1992 amendments to section 18-8-706, in which the General Assembly states its desire to protect potential witnesses and victims from coercive conduct, instructs our analysis. The General Assembly's intent is indicated by the placement of section 18-8-706 within a piece of broader legislation: (a) the purpose of which is to provide protection for victims and witnesses to a crime; and (b) which is to be cited as the "Colorado Victim and Witness Protection Act of 1984." See § 18-8-701, 6 C.R.S. (1998).

B. OVERBREADTH

1. Overbreadth Standard

We now turn to the People's argument that the trial court erred in holding that section 18-8-706 was unconstitutionally overbroad. We determine that, given a...