People v. Moyer, 82SA264

• Decision Date: 11 October 1983
• Docket Number: No. 82SA264,82SA264
• Citation: 670 P.2d 785
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Mark MOYER, a/k/a Marc Garfield, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 785

670 P.2d 785

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Mark MOYER, a/k/a Marc Garfield, Defendant-Appellee.

No. 82SA264.

Supreme Court of Colorado En Banc.

Oct. 11, 1983.

Robert L. Russel, Dist. Atty., David H. Zook, Chief Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Elvin L. Gentry, P.C., Colorado Springs, for defendant-appellee.

NEIGHBORS, Justice.

The defendant, Mark Moyer (also known as Marc Garfield), was charged by a grand jury indictment filed in the District Court of El Paso County with two counts of charitable fraud ¹ and one count of tampering with a witness. ² The trial court found the charitable fraud statute to be unconstitutionally vague, chiefly because the term "primary benefit" is subject to widely varying interpretations and the statute does not fairly describe the prohibited conduct. The district court also found that probable cause did not exist to support the charge of tampering with a witness. The trial court's order dismissing the charges on these grounds was stayed pending resolution of the People's appeal. ³ We affirm the district court's decision that section 18-5-115(1)(a), C.R.S.1973, of the charitable fraud statute is unconstitutional, but reverse its ruling on the probable cause issue.

I.

Evidence presented to the grand jury revealed the following pertinent facts. In October of 1980, the Colorado Jaycees entered into a contract with Garfield Productions (Garfield) which agreed to conduct a telephone solicitation drive for a fund-raising project. Under the contract, Garfield, a company owned by the defendant, offered packages of trash bags in exchange for contributions. Persons solicited by the defendant's company were told that the money would be used by the Jaycees to assist the parents of handicapped children at the S.A. Wilson School in Colorado Springs in buying an alarm system and/or technical equipment. The contract provided that the Jaycees were to receive twenty percent of the gross proceeds and Garfield was to receive the remaining eighty percent. Approximately $100,000 was raised through these telephone solicitations. Of the $20,000 allocated to the Jaycees under the contract, $5,000 was paid to B.J. Brady, the Jaycees' executive vice-president; $10,000 was allocated to the Jaycees' state office for administrative expenses and other programs; and $5,000 was awarded to the local chapters in whose area the solicitation had been conducted, i.e., the Colorado Springs, Pikes Peak, and Fountain Valley chapters. It appears from the record that it was from the local chapters' allocation that the parents of children at the Wilson School received approximately $3,400 for the purchase of an alarm system for the school.

Early in 1981, the defendant entered into a second contract with the Jaycees for fund-raising through telephone solicitations. This contract involved selling tickets for $10 to a "country-western jamboree" to be held on June 21, 1981. Testimony presented to the grand jury indicated that some of the persons who were asked to buy tickets were told that the proceeds would be used to help build a Multiple Sclerosis Research Center in Denver. The contract provided for a similar division of the gross proceeds, i.e., eighty percent for the defendant and his company and twenty percent for the Jaycees. The grand jury heard evidence that approximately $89,000 was raised through ticket sales for the concert performances, of which $17,900 was to be forwarded to the Jaycees under the terms of the contract. As of the time of the grand jury proceedings, however, the financial transactions had not been completed. ⁴ Therefore, the record does not establish how much money was received by the Colorado Jaycees as a result of this project.

Count 3 of the indictment arose out of an incident which occurred during the grand jury investigation. One witness, a former employee of the defendant, testified that the defendant told her that if she or "ten people" appeared before the grand jury, he would sue them for perjury.

At the close of its investigation, the grand jury returned the three count indictment against the defendant. The executive vice-president of the Colorado Jaycees, B.J. Brady, also was indicted on two counts of charitable fraud.

The defendant filed a motion to dismiss the indictment in the trial court, alleging that the charitable fraud statute is unconstitutional. In his motion the defendant alleged that the statute is both facially unconstitutional and unconstitutional as applied because it is vague, overbroad, and violates his right to equal protection and due process guarantees under the United States and Colorado Constitutions.

The court held a hearing on the motion. Evidence was presented that the El Paso County District Attorney's Office had issued a written opinion in May 1980, which indicated that "primary benefit" meant "more than fifty percent of the net proceeds" of the solicitation. At the time of the motions hearing, the district attorney's position was that "primary benefit" meant "more than fifty percent of the gross proceeds" received through any charitable solicitation. The trial court took the motion under advisement and later ruled that the charitable fraud statute is unconstitutionally vague. The judge stated:

"In considering this particular Statute, the Court would indicate that the thrust and portion of the Statute which the Court finds the most problems with would be 'the primary benefit.' And the Court has evidence before it which has been presented as to the varying interpretations that had been given to that phrase by various prosecutors in this judicial district as well as other judicial districts in this state; that the Court feels that that is overwhelming evidence that there is no standard under which a common person could ever comprehend exactly what it was that was forbidden, nor to give the Court any guidance whatsoever in the application of this Statute, nor to a person of average intelligence, would they know exactly who it was that was going to be prosecuted for what, and for that reason the Court feels that the Statute does not meet due process requirements and should, therefore, be held to be unenforceable as violative of the Defendant's constitutional rights, to be adequately advised as to what [is] criminal behavior and also to have a standard certain enough to assure fair and equal application of the law to all persons."

II.

The first question we address is the constitutionality of the charitable fraud statute, section 18-5-115(1)(a), C.R.S.1973 (1978 Repl.Vol. 8), which is charged in the indictment and which provides:

"(1) A person commits charitable fraud if such person commits any of the following acts:

"(a) Solicits or receives contributions for a purpose or use which, by affirmative representations or through lack of adequate disclosure, leads the person or persons, to whom the solicitation is made or from whom the contribution is received, reasonably to believe that such contributions will be used for the primary benefit of a charitable organization while not intending that such contributions will be so used. Evidence that contributions are used other than primarily for the benefit of a charitable organization shall be admissible to prove that such contributions were solicited or received with the intent that the use would be other than primarily for the benefit of a charitable organization."

The concept the trial court struggled with and which we address is the meaning of the terms "primary benefit" and "primarily for the benefit." The trial court determined that these terms were vague and did not fairly describe the conduct which is prohibited. We agree.

A statute which is unconstitutionally vague constitutes a denial of due process of law under the United States and Colorado Constitutions. ⁵ See People v. Beruman, 638 P.2d 789 (Colo.1982); People In the Interest of C.M., 630 P.2d 593 (Colo.1981). A statute is unconstitutionally vague if persons of common intelligence must guess at its meaning. People v. Enea, 665 P.2d 1026 (Colo.1983); Beruman, 638 P.2d 789; Williams v. City and County of Denver, 622 P.2d 542 (Colo.1981). However, when reviewing a statute in the context of a vagueness challenge, we must construe the statute so as to uphold its constitutionality whenever a reasonable and practical construction may be applied to it. Beruman, 638 P.2d 789; R & F Enterprises, Inc. v. Board of County Commissioners, 199 Colo. 137, 606 P.2d 64 (1980).

The legislature failed to define the terms "primary benefit" and "primarily for the benefit" as used in the charitable fraud statute. "Primarily" is defined in Webster's Third New International Dictionary as "first of all: FUNDAMENTALLY, PRINCIPALLY ... in the first place: ORIGINALLY." "Primary" is defined as follows: "first in order of time or development: INITIAL: PRIMITIVE ... first in rank or importance: CHIEF, PRINCIPAL ... BASIC, FUNDAMENTAL ... functioning or transmitted without intermediary: DIRECT ... not derived from or dependent on something else: FIRSTHAND, INDEPENDENT, ORIGINAL." Webster's Third New International Dictionary 1800 (1969). We recognize the need for legislation proscribing fraud in the solicitation and use of charitable contributions. Unfortunately, these dictionary definitions do not provide adequate guidance in the context of a criminal prosecution.

Although several reasonable and practical constructions may be applied to the statutory language in question, such constructions do not provide a readily ascertainable standard by which one's conduct may be measured. With respect to proceeds of charitable solicitations, it is unclear whether the General Assembly intended "primary benefit" to mean fifty percent of the proceeds, more than fifty percent of the proceeds, or a share larger than that received by any other party regardless of whether it amounted to fifty percent or more of the...