People v. Longoria, s. 92SA502

• Decision Date: 15 November 1993
• Docket Number: Nos. 92SA502,93SA38,s. 92SA502
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Billy Joe LONGORIA, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary Dean EKIN, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 266

862 P.2d 266

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Billy Joe LONGORIA, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary Dean EKIN, Defendant-Appellee.

Nos. 92SA502, 93SA38.

Supreme Court of Colorado En Banc.

Nov. 15, 1993.

G.F. Sandstrom, Dist. Atty., James S. Whitmire, Asst. Dist. Atty., Pueblo, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Janet Fullmer Youtz, Deputy State Public Defender, Denver, for defendant-appellee in No. 92SA502.

Matthew Martin, Pueblo, for defendant-appellee in No. 93SA38.

Justice VOLLACK delivered the Opinion of the Court.

The People of the State of Colorado (the People) appeal from two district court orders of the Pueblo County District Court in two unrelated cases, People v. Longoria, No. 91CR817, Division B, and People v. Ekin, No. 91CR233, Division B. In each case, the district court dismissed the count charging sexual assault on a child as a part of a pattern of sexual abuse. The trial court ruled that the statutory language, "pattern of sexual abuse," on which the charge was based, is unconstitutionally vague. In each action, the People appeal the trial court's ruling that found the sentence enhancement statute, section 18-3-405(2)(c), 8B C.R.S. (1986 & 1993 Supp.), unconstitutional and dismissed the charge of sexual assault on a child as a part of a pattern of sexual abuse.

We consolidated the cases for our review and concurrently address both appeals, ¹ since the constitutional challenges to section 18-3-405(2)(c) in each are substantially the same. We conclude that the statute as properly construed is consistent with constitutional requirements, and therefore reverse the orders of the trial court in both Ekin and Longoria and remand for further proceedings.

I.

A. Longoria

An information was filed in August 1991, charging the defendant, Billy Joe Longoria (Longoria), with two counts of sexual assault on a child. The first count charged the defendant with sexual assault on a child by one in a position of trust in violation of section 18-3-405.3, 8B C.R.S. (1986 & 1993 Supp.), a class 3 felony. ² The second count charged the defendant with sexual assault on a child as a part of a pattern of sexual abuse in violation of section 18-3-405(2)(c), 8B C.R.S. (1986 & 1993 Supp.), a class 3 felony. ³ On March 12, 1992, Longoria filed a motion to dismiss the second count on the ground that the statute is unconstitutionally vague.

Longoria argues that the statute is vague because it fails to define adequately what constitutes a pattern. Longoria also contends that the statute does not provide guidelines as to what the prosecution is required to prove to show a pattern. The statute is further flawed, Longoria states, because it fails to give adequate notice of the proscribed conduct and fails to provide sufficient guidance to ensure fair prosecution and enforcement of its provisions.

In granting the motion, the district court reasoned as follows:

Because freedom is priceless, a statute which serves to mandate a term of incarceration must be specific in nature. Such is not the case with the statute at issue. There is no guidance as to what the prosecution is required to prove to constitute a pattern and, more importantly, there is no guidance as to what the Defendant must defend against concerning said statute. The vagueness of the statute denies the Defendant an opportunity for a fair trial and as such is unconstitutional.

After this order, but prior to trial on the other charge, the prosecution brought this appeal, pursuant to section 16-12-102(1), 8A C.R.S. (1986 & 1993 Supp.), which requires the prosecution to appeal any decision adjudging any act of the General Assembly unconstitutional in a criminal case.

B. Ekin

An amended information filed in May 1991 charged the defendant, Gary Dean Ekin (Ekin), with two counts of aggravated incest in violation of section 18-6-302, 8B C.R.S. (1986), a class 3 felony, one count of sexual assault on a child by one in a position of trust in violation of section 18-3-405.3, 8B C.R.S. (1986 & 1993 Supp.), a class 3 felony, and one count of sexual assault on a child as a part of a pattern of sexual abuse in violation of section 18-3-405(2)(c), 8B C.R.S. (1986 & 1993 Supp.), a class 3 felony. ⁴

On February 1, 1993, prior to trial, the trial judge on his own motion, and relying on his ruling in People v. Longoria that section 18-3-405(2)(c) is unconstitutional, issued an order dismissing the fourth count of the amended information. In language identical to the district court's order in Longoria, the court concluded that the statute is vague.

The People now seek review of the district court's determination in each case.

II.

The defendants assert that section 18-3-405, 8B C.R.S. (1986), is unconstitutional because subsection (2)(c), which incorporates the definition of "pattern of sexual abuse" from section 18-3-401(2.5), is void for vagueness. Although section 18-3-401(2.5) defines pattern as two or more proven acts of sexual contact by the same actor on the same victim, the defendants argue that the commonly understood meaning of "pattern" and prior United States Supreme Court decisions ⁵ have both defined "pattern" as requiring more than any two acts, i.e., a relationship beyond mere acts. The defendants' argument is without merit.

The sentence enhancement statute, section 18-3-405(2)(c), under which the defendants were charged, increases the punishment for sexual assault on a child from a class 4 felony to a class 3 felony if the jury also finds that the offense was committed as a part of a pattern of sexual abuse. Section 18-3-405 provides in pertinent part as follows:

Sexual Assault on a Child. (1) Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim.

(2) Sexual assault on a child is a class 4 felony, but it is a class 3 felony if:

....

(c) The actor commits the offense as a part of a pattern of sexual abuse. No specific date or time must be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse must have been committed within ten years of the offense charged in the information or indictment. The offense charged in the information or indictment shall constitute one of the incidents of sexual contact involving a child necessary to form a pattern of sexual abuse as defined in section 18-3-401(2.5).

§ 18-3-405(1), (2)(c), 8B C.R.S. (1986 & 1993 Supp.).

Section 18-3-401(2.5) provides as follows:

"Pattern of sexual abuse" means the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim.

§ 18-3-401(2.5), 8B C.R.S. (1993 Supp.).

A.

The People first contend that the district court erred in holding that section 18-3-405(2)(c), 8B C.R.S. (1986 & 1993 Supp.)--classifying sexual assault on a child as a part of a "pattern of sexual abuse" as a class 3 felony--is unconstitutionally vague because the term "pattern of sexual abuse" is not clearly defined by the statute. We agree.

We are guided by several well established principles in addressing a challenge to a statute as unconstitutionally vague in violation of the Due Process Clauses of the United States and Colorado Constitutions. It is well settled that, "[w]hen reviewing a statute upon a challenge of unconstitutionality due to vagueness, the duty of the reviewing court is to construe the statute so as to uphold its constitutionality whenever a reasonable and practical construction may be applied to the statute." People v. Buckallew, 848 P.2d 904, 907 (Colo.1993) (quoting People v. Beruman, 638 P.2d 789, 792 (Colo.1982)). A statute enjoys a presumption of constitutionality, and the party challenging it bears the burden of proving unconstitutionality beyond a reasonable doubt. Id.

When a statute is challenged as void for vagueness, the essential inquiry is whether the statute describes the forbidden conduct in terms so vague that persons of common intelligence cannot readily understand its meaning and application. People v. Gross, 830 P.2d 933, 937 (Colo.1992). Although the statute must define the criminal offense with sufficient definiteness to give fair warning of the prohibited conduct, it must also be general enough to address the problem under varied circumstances and during changing times. Id.; see Exotic Coins, Inc. v. Beacom, 699 P.2d 930, 943 (Colo.1985); People v. Castro, 657 P.2d 932, 939 (Colo.1983).

B.

In each case, the defendant contends that the phrase "pattern of sexual abuse" found in section 18-3-405 is unconstitutionally vague because the statute fails to specify what constitutes a pattern. Each defendant argues that the statute deprives him of his right to present a defense because the charge does not adequately give notice of the proscribed conduct. ⁶ Both defendants further claim that the statute deprives each one of his right to a unanimous jury verdict. ⁷

We now direct our attention to the legislature's intent. In construing a statute, we must ascertain and effectuate the legislative intent. Kern v. Gebhardt, 746 P.2d 1340, 1344 (Colo.1987). The legislature's intent is to be discerned when possible from the plain and ordinary meaning of the statutory language. People v. Davis, 794 P.2d 159, 180 (Colo.1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991).

We turn first to examining the legislature's intent and then next to examining the language of sections 18-3-405(2)(c) and 18-3-401(2.5). To discern the intent of the General Assembly, we note that, in amending section 18-3-405, the legislature was attempting to recognize the very serious nature of a continuing pattern of sexual abuse on a child as a real concern that the trial judge...