People v. Hoehl
Decision Date | 06 September 1977 |
Docket Number | No. 27369,27369 |
Citation | 193 Colo. 557,568 P.2d 484 |
Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James R. HOEHL, Defendant-Appellant. |
Court | Colorado Supreme Court |
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., James S. Russell, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Kelly, Haglund & Garnsey, Norman D. Haglund, Denver, for defendant-appellant.
Defendant James R. Hoehl appeals his conviction for child abuse. We reverse and remand for a new trial.
Defendant was charged in a two-count information in Denver District Court with child abuse, section 18-6-401(1)(a), C.R.S.1973, and first-degree assault, section 18-3-202 C.R.S.1973. He was acquitted of the assault charge.
Regarding the child abuse charge, the information alleged that:
"(b)etween the dates of February 20, 1975 and February 25, 1975, JAMES R. HOEHL, did then and there unlawfully, feloniously knowingly, intentionally and without justifiable excuse, cause and permit a child, JODY SIEMILLER, to be placed in a situation that could endanger the child's life and health, and did further torture and cruelly punish the aforesaid JODY SIEMILLER, the foregoing resulting in serious bodily injury * * *."
The district court denied defendant's motion to dismiss this count or for a bill of particulars.
At trial, the People introduced two voluntary statements by defendant concerning the incident in question. These statements, reaffirmed by defendant's later testimony, related that defendant was babysitting Jody Siemiller, the four-year-old daughter of a friend, on February 23, 1975, as he had done on prior occasions. After taking Jody to a late movie, defendant drove around town for two or two and one-half hours. The night was cold, a window was open, the heater in defendant's car was not working, and Jody wore only a light jacket.
As a result, when they arrived at defendant's house, Jody was tired and complained that her hands were cold. Defendant told her to place her hands on a steam radiator and assisted her in doing so. Defendant left the room. When he returned, Jody said her hands were still cold. Defendant suggested that she turn them over, placing them palms down on the radiator. He again left the room. On his return, Jody complained that her hands hurt. Defendant discovered large blisters on both palms. She did not cry until defendant peeled a portion of the skin from her right hand. He washed her hands in cold water, applied burn ointment, and put her to bed. The next morning he took her home.
The bulk of the People's evidence consisted of expert testimony by three doctors that Jody's injuries could not have occurred as defendant claimed. They testified that despite the cold and Jody's fatigue, she would have felt pain from such intense heat and removed her hands from the radiator. Jody's injuries were described as second- and third-degree burns, one requiring a skin graft.
Defendant denied holding Jody's hands on the radiator. Two expert witnesses for the defense testified that the burns could have been self-inflicted, without Jody's feeling pain.
At the close of the evidence, the court, on the People's motion, struck from the information the language "and did further torture and cruelly punish the aforesaid JODY SIEMILLER." The court refused to instruct the jury on the meaning of several phrases in the child abuse statute, remarking:
The jury returned its verdict, finding defendant guilty of child abuse.
Defendant urges reversal of this conviction on two grounds: (1) the child abuse statute, section 18-6-401(1)(a), C.R.S.1973, is impermissibly vague, and (2) the information was defective for vagueness. We consider these allegations in order.
Section 18-6-401(1)(a), C.R.S.1973, provides:
Defendant attacks the italicized language as unconstitutionally vague, in violation of U.S.Const. amend. V and Colo.Const. Art. II, Sec. 25.
At the outset, we note that a statute claimed to be impermissibly vague must be closely scrutinized. People v. Blue, Colo., 544 P.2d 385; People v. District Ct., 185 Colo. 78, 521 P.2d 1254. But, where a statute may be interpreted several ways, one of which is constitutional, the constitutional interpretation should be adopted. People v. Gonzales, 188 Colo. 272, 534 P.2d 626; People v. District Ct., supra. With these principles in mind, we consider the challenged statute.
Normally, "may" means "be in some degree likely," Merriam-Webster's New International Dictionary (Third Edition) p. 1396, "expressing ability, competency, liberty, permission, possibility, probability or contingency." Black's Law Dictionary 1131 (4th rev. ed. 1968). See Greyhound Corp. v. Excess Insurance Co., 233 F.2d 630 (5th Cir. 1956); Grant v. Utah State Land Board, 26 Utah 2d 100, 485 P.2d 1035. So construed, we seriously doubt whether "may" in a criminal statute provides a fair description of the prohibited conduct, since virtually any conduct directed toward a child has the possibility, however slim, of endangering the child's life or health. People v. Gonzales, supra. See State v. Lucero, 87 N.M. 242, 531 P.2d 1215 (N.M.Ct.App.1975); State v. Llopis, 257 So.2d 17 (Fla.1971).
We have not, however, hesitated to construe "may" as importing a greater degree of certainty, where necessary. Duprey v. Anderson, 184 Colo. 70, 518 P.2d 807 ( ); Carleno Sales v. Ramsay Co., 129 Colo. 393, 270 P.2d 755 (interpreted as "shall" in contract. Other courts have similarly found it necessary to depart from the everyday understanding of "may" in construing statutes, International Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714 (5th Cir. 1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349 ( ); Federal Trade Commission v. Charles N. Miller Co., 97 F.2d 563 (1st Cir. 1938) ( ), and contracts. Greyhound Corp. v. Excess Insurance Co., supra ( ).
We construe the word "may" in section 18-6-401(1)(a) to mean that there is a reasonable probability that the child's life or health will be endangered from the situation in which the child is placed. There is no constitutional impediment to the legislature punishing conduct creating less than imminent danger. People v. Garcia, Colo., 541 P.2d 687. This is a particularly appropriate standard where the protection of children is the statutory purpose.
The phrase "endanger the child's * * * health" contains no similar infirmities. In People v. Garcia, supra, we upheld section 18-4-105, C.R.S.1973 (fourth-degree arson), which prohibits placing "any building or occupied structure * * * in danger of damage," noting that this...
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...cruelly mistreats and maltreats"); State v. Killory, 73 Wis.2d 400, 243 N.W.2d 475 (1976) ("cruel maltreatment"); And see People v. Hoehl, Colo., 568 P.2d 484 (1977). What these cases demonstrate is that a standard of absolute mathematical precision, however, desirable in any statute whethe......
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...that failure to supervise a child in a potentially harmful situation may rise to the level of child abuse. See People v. Hoehl, 193 Colo. 557, 560, 568 P.2d 484, 486 (1977) (Defendant who told child to warm her hands on a radiator without supervision, resulting in third degree burns to the ......
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People v. Pratt, 86SA401
...however, was not at issue in Young and, thus, Young also is not controlling. The defendant relies upon our decision in People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977). In Hoehl we interpreted the child abuse statute, section 18-6-401(1)(a), 8 C.R.S. (1973), which provided in pertinent p......
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...subsection unconstitutionally vague. This aspect of the vagueness argument flies in the face of our holding in People v. Hoehl, 193 Colo. 557, 560, 568 P.2d 484, 486 (1977), where we construed the word "may" to mean "a reasonable probability that the child's life or health will be endangere......
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ARTICLE 6
...which concerns the use of physical force in the special relationship of one who is entrusted with the care of a minor. People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977). Use of jury instruction containing phrase "without justifiable excuse" instead of word "unreasonably" from subsection (......
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ARTICLE 6 OFFENSES INVOLVING THE FAMILY RELATIONS
...which concerns the use of physical force in the special relationship of one who is entrusted with the care of a minor. People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977). Use of jury instruction containing phrase "without justifiable excuse" instead of word "unreasonably" from subsection (......
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Consistency in Statutory Interpretation
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