People v. Jennings, No. 79SA543

• Docket Nº: No. 79SA543
• Citation: 641 P.2d 276
• Case Date: February 01, 1982
• Court: Supreme Court of Colorado

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641 P.2d 276 The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
John JENNINGS, Defendant-Appellee. No. 79SA543. Supreme Court of Colorado, En Banc. Feb. 1, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Susan P. Mele, Asst. Atty. Gen., Lit. Sec., Denver, for plaintiff-appellant.

Kenneth T. Johnson, Jr., Glenwood Springs, for defendant-appellee.

DUBOFSKY, Justice.

On July 18, 1979 the defendant, John Jennings, was convicted in Garfield County District Court of child abuse resulting in serious bodily injury under section 18-6-401(1)(c), C.R.S.1973 (1978 Repl. Vol. 8). ¹ Subsequently, the trial court granted the defendant's motion to dismiss based on the vagueness of the criminal child abuse statute. The People appealed the trial court's ruling, ² and we reverse.

The child abuse charge arises from an incident which occurred on August 16, 1978. On that day, the defendant left work at about noon because he felt ill, went home,

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and dismissed the babysitter who was caring for his stepson, Jason, aged three, and his four-month-old daughter, Christina. The defendant testified that from the time he arrived home, Christina was "fussy." He attempted to calm her, then lay down and tried to take a nap, but the baby continued to cry. The defendant got up, checked Christina's diaper and tried to give her a bottle. She continued crying. The defendant testified that he was going to pick her up, but instead he struck her on the head with his open hand. The following colloquy regarding the slap took place at trial:

"Q. Okay. Now, how many times did you hit Christina?

A. One time.

Q. Why did you do that?

A. I don't know.

Q. Were you trying to punish her?

A. No, I wasn't trying to punish her.

Q. Do you think a four-month-old child knows the meaning of discipline?

A. No.

Q. Had you intended to slap her?

A. No.

Q. Did you mean to hurt her?

A. No.

Q. Did it ever occur to you, John, that by hitting a child that young in the face that it might cause serious bodily injury?

A. I never really gave it that much thought because I never wanted to hit my children anywhere...."

Apparently as a result of the slap, Christina stopped breathing for a time, causing brain damage which resulted in blindness and arrested mental development. After the defendant's trial, on November 3, 1979, Christina died. The defendant stipulated before trial that Christina suffered serious bodily injury as a result of his single slap to her head. The only question for the jury was whether the slap resulting in brain damage constituted felony child abuse, defined under section 18-6-401(1)(c) as "knowingly, intentionally, or negligently, and without justifiable excuse," causing or permitting a child to be "abandoned, tortured, cruelly confined or cruelly punished." In response to the defendant's request for a bill of particulars, the prosecution alleged that the child had been "cruelly punished."

The jury found the defendant guilty of felony child abuse. The defendant filed a new trial motion and renewed his pre-trial motion to dismiss, which the court had taken under advisement. At a hearing on November 6, 1979, the court found the language "cruelly punished" unconstitutionally vague because of the subjective nature of the words "cruel" and "punish."

The People appeal the trial court's ruling on vagueness. We determine that the criminal child abuse statute is not vague and reverse the trial court's ruling. ³

I.

The vagueness challenge to the child abuse statute centers on the statutory phrase "cruelly punished." ⁴ The defendant argues that the words "cruel" and "punish," while they may have generally understood meanings in day-to-day usage, are, in the context of the child abuse statute, unclear and susceptible of subjective interpretation.

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The defendant contends that the absence of a statutory definition of these words forces jurors to import their subjective impressions as to what punishment is cruel. The defendant cites State v. Meinert, 225 Kan. 816, 594 P.2d 232 (1979), in which the Kansas Supreme Court, interpreting that state's criminal child abuse statute, stated:

"Some persons do not believe in any form of corporal punishment and to them any such treatment would be unjustified. On the other hand, others may believe any correction, however severe, which produces temporary pain only, and no lasting injury or disfigurement, is justified. The statute can conceivably cover anything from a minor spanking or slapping to severe beating depending upon the personal beliefs of the individual."

594 P.2d at 234-35.

At the outset, we note that the defendant's argument is a broad one, amounting to a contention that in light of the wide divergence in personal views as to what constitutes cruel punishment of a child, a statute which does not define in detail each act proscribed cannot delineate an enforceable standard. We disagree; the prohibition in the child abuse statute against cruel punishment is sufficiently precise to satisfy due process requirements.

This Court has on numerous occasions enunciated the standard a statute challenged on vagueness grounds must satisfy to accord due process. As a preliminary matter, a statute claimed to be impermissibly vague must be closely scrutinized. E.g., People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977); People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975). If a challenged statute is capable of alternate constructions, one of which is constitutional, the constitutional interpretation must be adopted. E.g., People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979); People v. Hoehl, supra.

A penal statute is unconstitutionally vague if it "forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application...." Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); People v. Johnson, et al., Colo., 638 P.2d 1 (1981); People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973). Criminal statutes should be framed with sufficient clarity so as to inform the persons subject to them of the standards of conduct imposed and to give fair warning of which acts are forbidden. Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927); People v. Thatcher, Colo., 638 P.2d 760 (1981); People v. Johnson, et al., supra; People in the Interest of C.M., Colo., 630 P.2d 593 (1980); People v. Garcia, 189 Colo. 347, 541 P.2d 687 (1975); People v. Heckard, 164 Colo. 19, 431 P.2d 1014 (1967). The vagueness doctrine also seeks to minimize arbitrary and discriminatory enforcement of laws by providing police and prosecutors with clearly defined standards. People v. Thatcher, supra; People v. Johnson, et al., supra; People in the Interest of C.M., supra; People v. District Court, 185 Colo. 78, 521 P.2d 1254 (1974). Such standards serve as well to inform a court and jury whether a crime has been committed and proved. People v. Thatcher, supra; People v. Johnson, et al., supra; People in the Interest of C.M., supra; People v. Heckard, supra.

The vagueness standard, while frequently enunciated, is nevertheless difficult to apply. Here, the defendant's contention is that the distinction between mere "punishment" and "cruel punishment" is impermissibly vague. The distinction between the two centers on the meaning of the word "cruel." Webster's Third New International Dictionary (1961) defines "cruel" as "disposed to inflict pain, especially in a wanton, insensate, or vindictive...