People v. McBurney, No. 86SC431

• Docket Nº: No. 86SC431
• Citation: 750 P.2d 916
• Case Date: February 22, 1988
• Court: Supreme Court of Colorado

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750 P.2d 916 The PEOPLE of the State of Colorado, Petitioner,
v.
Anselmo McBURNEY, Respondent. No. 86SC431. Supreme Court of Colorado,
En Banc. Feb. 22, 1988.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, First Asst. Atty. Gen., Denver, for petitioner.

Leventhal and Bogue, P.C., Natalie Brown, Denver, for respondent.

VOLLACK, Justice.

This appeal concerns the validity of Colorado's telephone harassment statute, section 18-9-111(1)(e), 8B C.R.S. (1986). The Arapahoe County District Court affirmed the county court's dismissal of one count of telephone harassment against Anselmo Stephen McBurney on the ground that the statute was unconstitutional on its face

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because of vagueness and overbreadth. ¹ We reverse.

I.

On December 5, 1984, Elaine McBurney was at work when the telephone rang. As she answered it, the caller hung up. This happened to her seven more times that day, and had allegedly occurred often in the past. On the eighth time, after she said hello, the caller spoke but did not identify himself. He said to her, "How does it feel going in?"

Based on her recognition of the caller's voice, the police arrested Anselmo Stephen McBurney and charged him with one count of telephone harassment. The county court dismissed the charge, holding that the telephone harassment statute was unconstitutionally vague and overbroad. The district court affirmed the dismissal on the same grounds.

II.

The defendant does not claim that the statute is unconstitutional as applied to him. Instead, he contends that the statute is vague and overbroad on its face. The telephone harassment statute provides in pertinent part:

18-9-111. Harassment. (1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he:

* * *

(e) Initiates communication with a person, anonymously or otherwise by telephone, in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone which is obscene; ...

8B C.R.S. (1986).

In order to be found guilty under the present telephone harassment statute, the prosecution must show that the defendant had the specific intent to "harass, annoy, or alarm" another while committing the offense of initiating a telephone communication "in a manner intended to harass or threaten bodily injury or property damage," or makes an obscene telephone "comment, request, suggestion or proposal."

III.

The first question before us is whether McBurney has standing to challenge the constitutionality of the statute as facially overbroad. People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 355 (Colo.1985). The county court, relying on Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975), and People v. Norman, 703 P.2d 1261 (Colo.1985), found that the defendant had standing to challenge the statute. The prosecution contends that, under the test announced in People v. Weeks, 197 Colo. 175, 591 P.2d 91 (1979), the defendant's conduct is too close to the interests protected by the telephone harassment statute to permit the defendant to challenge its constitutionality. We conclude that the defendant lacks standing to raise the issue of overbreadth.

Standing requires a party to show injury in fact to a legally protected interest. Marco Lounge, Inc. v. City of Federal Heights, 625 P.2d 982, 984 (Colo.1981). This would ordinarily preclude him from showing that a particular statute infringed upon the rights of someone other than himself.

In First Amendment cases, however, the rules of standing are broadened to permit a party to assert the facial overbreadth of statutes or ordinances which may chill the constitutionally protected expression of third parties, regardless of whether the statute or ordinance could be applied constitutionally to the conduct of the party before the court.

City of Englewood v. Hammes, 671 P.2d 947, 950 (Colo.1983) (citing May v. People, 636 P.2d 672, 675 (Colo.1981); Marco Lounge, 625 P.2d at 985). See also Bolles v. People, 189 Colo. 394, 396, 541 P.2d 80, 82 (1975).

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In People v. Weeks, 197 Colo. 175, 591 P.2d 91 (1979), we held that a defendant lacked standing to challenge the constitutionality of the predecessor to the present telephone harassment statute. The defendant had conceded that his telephone calls were patently offensive and that they were "laced with sexual suggestions and descriptions of sex acts." We stated that

[U]se of the [overbreadth] doctrine is reserved for those defendants whose speech is at the fringes of that activity which the statute is designed to regulate. Those defendants whose speech is central to the interests which the statute seeks to protect and is clearly of a type regulated by the statute in question, cannot attack the statute as overbroad. They must demonstrate that the statute is unconstitutional as applied to them. Broadrick v. Oklahoma, [413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ]; Bolles v. People, [189 Colo. 394, 541 P.2d 80 (1975) ].

Weeks, 197 Colo. at 179, 591 P.2d at 94. We concluded that the defendant's telephone calls, far from being at the fringes of what constituted telephone harassment, were "at the core of the privacy interests which section 18-9-111(1)(e) is designed to protect." Id.; 591 P.2d at 94-95. In the present case the defendant denies that his statement is patently offensive. However, in People v. Bridges, 620 P.2d 1 (Colo.1980), we held that the defendant lacked standing to challenge as overbroad the constitutionality of sections 18-9-101(2) and -104, 8 C.R.S. (1973), which prohibited persons from engaging in riots. The defendant in that case also denied that his conduct constituted riotous behavior. There we applied the Weeks test of third party standing and concluded that he lacked standing to challenge the constitutionality of the statutes because his alleged conduct described precisely the type of conduct the riot statutes were intended to proscribe. There we stated: "[t]o invalidate the statutes as overbroad would require us to speculate as to their deterrent impact on hypothetical conduct significantly different from that...