People v. Latsis, 27737

• Decision Date: 22 May 1978
• Docket Number: No. 27737,27737
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Petros Demetrios LATSIS, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1055

578 P.2d 1055

195 Colo. 411

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Petros Demetrios LATSIS, Defendant-Appellee.

No. 27737.

Supreme Court of Colorado,En Banc.

May 22, 1978.

Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Denver, for plaintiff-appellant.

Michael R. Enwall, Boulder, for defendant-appellee.

LEE, Justice.

An information in the district court charged defendant, Petros Demetrios Latsis, with six felony counts. The first four counts were dismissed after a preliminary hearing. The fifth and sixth counts charged the defendant with two separate offenses of criminal solicitation of the crime of aggravated robbery. Section 18-2-301, C.R.S.1973.

Defendant's motion to dismiss the solicitation counts on the ground that the statute is unconstitutional for reasons of vagueness and overbreadth was granted by the court. The district attorney appeals from this ruling.

The criminal solicitation statute provides:

"Criminal solicitation. (1) Except as to bona fide acts of persons authorized by law to investigate and detect the commission of offenses by others, a person is guilty of criminal solicitation if he commands, induces, entreats, or otherwise attempts to persuade another person to commit a felony, whether as principal or accomplice, with intent to promote or facilitate the commission of that crime, and under circumstances strongly corroborative of that intent." Section 18-2-301, C.R.S.1973.

The district court's holding of unconstitutionality provided in pertinent part as follows:

"8. The portion of the statute which reads, 'Except as to bona fide acts of persons authorized by law to investigate and detect the commission of offenses by others . . .' is vague in that men of common intelligence must necessarily guess at the meaning of 'bona fide.'

"9. The portion of the statute which reads, '. . . a person is guilty of criminal solicitation if he commands, induces, entreats, or otherwise attempts to persuade another person to commit a felony, whether as principal or accomplice, with intent to promote or facilitate the commission of that crime . . .' is not vague.

"10. The portion of the statute which states, '. . . and under circumstances strongly corroborative of that intent' renders the statute unconstitutional for the following reasons:

"a. The legislature has not prohibited all solicitations of all criminal acts, but only solicitations of felonies 'with intent to promote or facilitate the commission of that crime and under circumstances strongly corroborative of that intent' (emphasis supplied).

"b. There is no standard in the statute which would enable a person of common intelligence to understand what circumstances are 'strongly corroborative of that intent.'

"c. Although the statute proscribes certain kinds of unprotected speech, it does not state in understandable terms what kinds of solicitations of felonies are prohibited and what kinds are not. There is no way that a citizen may know in advance what 'circumstances' are 'strongly corroborative of that intent.' Determination of this critical issue, which is part of the statutory definition, is left to judges and juries on a case-by-case basis.

"d. Subsection (1) of the statute therefore includes an unconstitutional delegation to the judiciary of the legislative power to define a crime."

We do not agree with the court's ruling and hold that the criminal solicitation statute is constitutional.

In its ruling, the district court recognized the important interest of the state in "preserving the peace and preventing criminal activity" and noted that "there is no fundamental personal liberty to solicit another to commit a crime." The court then held the statute "does not prohibit solicitation of lawful acts and therefore does not purport to cover constitutionally protected speech."

The court then applied the long-standing test of vagueness as set forth in our several decisions whether men of common intelligence can readily understand the statute and its application, or whether they must guess or speculate as to its meaning. People v. Blue, Colo., 544 P.2d 385; People v. District Court, 185 Colo. 78, 521 P.2d 1254; Howe v. People, 178 Colo. 248, 496 P.2d 1040; Self v. People, 167 Colo. 292, 448 P.2d 619; People v. Heckard, 164 Colo. 19, 431 P.2d 1014.

As heretofore set forth in paragraph 8 of the order, the court felt that men of common intelligence would necessarily have to guess at the meaning of the words "bona fide." We do not agree with this conclusion. Although the term is of Latin derivation, it is commonly used and readily understood as denoting "(i)n or with good faith; honestly, . . . (r)eal, actual, genuine . . . ." Black's Law Dictionary (4th rev. ed. 1968). That the legislature might have used a synonym does not render that portion of the statute constitutionally infirm. That a provision of a statute might require more than a quick glance for full comprehension does not render the terms therein used impermissibly vague. People v. Blue, supra.

Nor do we agree with the court's conclusion that the use of the modifying phrase "and under circumstances strongly corroborative of that intent" makes unconstitutionally vague the operative portion of the statute which the court specifically found not to be vague. In our view, the modifying phrase relates to the burden upon the prosecution to present a quantum of evidence sufficient to demonstrate that the accused acted with the specific intent to promote or facilitate the commission of a crime. In other words, it is not sufficient to show merely that the accused solicited the commission of a crime; rather, sufficient circumstances surrounding the overt act of solicitation must be presented which corroborate that the act in fact was done with the requisite specific...