People v. Norman

• Decision Date: 10 June 1985
• Docket Number: No. 83SA290,83SA290
• Citation: 703 P.2d 1261
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roy NORMAN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1261

703 P.2d 1261

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roy NORMAN, Defendant-Appellant.

No. 83SA290.

Supreme Court of Colorado,

En Banc.

June 10, 1985.

Rehearing Denied Aug. 19, 1985.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Dolores S. Atencio, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Lee Jay Belstock, Denver, for defendant-appellant.

KIRSHBAUM, Justice.

Defendant, Roy J. Norman, appeals convictions of harassment, ¹ felony theft, ² first degree criminal trespass, ³ attempt to influence a public servant ⁴ and two counts of offering a false instrument for recording, ⁵ following a trial to the court. Because defendant asserts that section 18-9-111(1)(d), 8 C.R.S. (1978), violates provisions of the United States and Colorado Constitutions, the appeal has been transferred to this court. See §§ 13-4-102(1)(b), -110(1)(a), 6 C.R.S. (1973). We affirm in part and reverse in part.

I

This case has its origins in 1969, when defendant, an Internal Revenue Service (IRS) revenue officer, and Edytha Lesuer (Lesuer), an IRS group clerk, became good friends. Defendant counseled Lesuer concerning her work and her personal life, and they and their spouses jointly participated in social activities.

In March 1978, the East Continental Industrial Bank (the bank) instituted foreclosure proceedings on a parcel of improved land located in Jefferson County, Colorado, near the town of Conifer. Lienholders, including Pay Center, Inc. (the senior lienor), Arvada Hardwood Floor Co. (the junior lienor), and the IRS (the tax lienor) were notified, and defendant was assigned to monitor this matter for the IRS. Defendant notified the bank that the IRS intended to pursue its interest in the property.

Lesuer learned of the impending sale and told defendant she was interested in purchasing the property. Recognizing a potential conflict of interest, Lesuer decided to purchase the property in her sister's name. However, Lesuer later withdrew the bid on the property, and the IRS decided not to redeem. On May 31, 1978, the foreclosure sale was held and the bank acquired a certificate of purchase for the property from the public trustee.

Lesuer then decided to purchase the property from the bank in her sister's name. Relying in part upon defendant's advice, she tendered $2,334.76 to the bank on August 22, 1978, and the certificate of purchase was transferred to her sister. On September 1, 1978, Lesuer and her children obtained a quitclaim deed to the mountain property from Lesuer's sister. Lesuer was interested in improving the small cabin located on the property, but because of the outstanding liens, was hesitant about investing additional money in the property. Defendant told Lesuer that the junior lien would be extinguished as a result of pending litigation and that the $437.08 senior lien was so small no one would pursue it. However, in December 1978, defendant purchased the senior lien for approximately $228.00.

On December 14, 1978, defendant sent a letter and supporting documents, including a writ of execution, to the Jefferson County Sheriff's Office requesting execution on the mountain property. That office notified the former owner of this property, and Lesuer and her children, of the pending sale. However, defendant did not list the junior lienor as a party to be notified, and no notice of sale was sent by any public official to the junior lienor. ⁶ Defendant was the only bidder at the sheriff's sale. For the sum of approximately $800, representing the costs of the sale, he acquired a sheriff's deed and certificate of purchase for the property on April 25, 1979. Although the calculated bid amount was $5,090, this amount included a sum of $4,250 for legal costs which, in large part, represented the time defendant indicated that he spent conducting legal research.

On May 21, 1979, defendant quitclaimed the mountain property to Lesuer; the deed was subsequently recorded. On June 18, 1979, Lesuer delivered a check for $2,000 to defendant, who in turn gave Lesuer a receipt acknowledging "full payment" for the mountain property. Defendant then deposited the $2,000 into his credit union account.

On September 12, 1979, defendant filed a warranty deed with the Office of the Jefferson County Clerk and Recorder conveying the property from himself, as holder of the senior lien, to himself as an individual. The document contained an allegation that the May 1979 quitclaim deed to Lesuer had been removed from defendant's possession "without due consideration." Lesuer learned of this filing and confronted defendant about it. Subsequently, on March 13, 1980, defendant executed another warranty deed, which deed conveyed the mountain property to Lesuer for "$10 and other good and valuable consideration."

On August 27, 1980, defendant advised Lesuer by letter that she did not own the mountain property because she had taken and recorded deeds to the property without his approval. The letter indicated that defendant would give Lesuer credit for $2,000, but warned that if a "balance" of $28,000 was not paid by September 14, 1980, he would institute legal proceedings against her. Defendant also filed another warranty deed with the Jefferson County Clerk and Recorder's Office on August 27, 1980. This deed, purportedly from defendant and Lesuer as grantors to defendant as grantee, indicated that it had been executed for "Correction of Records Only" and "to serve notice and correct title." The deed, which was not signed by Lesuer, also stated that the March 13, 1980, warranty deed was void because it had been "taken[,] stolen, or otherwise removed from my possession and recorded without my permission, authority, intent, and without due consideration."

In June 1980, Steve Simer, an IRS internal security division investigator, began investigating the status of the mountain property. Simer contacted Lesuer; Phillip Gay, an investigative auditor with the Jefferson County District Attorney's Office; and Diana Tibaldo, a clerk in the Jefferson County Assessor's Office, who told Simer that defendant had made certain threats against her when he sought to record the August 1980 warranty deed.

On October 7, 1980, defendant telephoned Lesuer and informed her that later in the afternoon he was going to dispose of all of her belongings housed in the cabin. Lesuer then called Simer, and the two arranged to have lunch to discuss this threat. While driving to the designated restaurant, Lesuer noticed defendant following her. Lesuer and Simer decided to go to a different restaurant, but defendant again followed them. When Lesuer returned to work later that day, defendant again telephoned her. As she had done for several months, Lesuer recorded the October 7 1980, telephone conversation with defendant.

When Lesuer left work that afternoon, defendant was waiting for her in the parking lot. She and defendant then drove to the property in separate vehicles. Earlier in the day, Simer, Gay and another Jefferson County District Attorney's Office investigator had concealed themselves near the property. By previously established radio contact, they advised Lesuer to enter the cabin, lock the door behind her, exit through the rear door and go to a waiting car.

Upon arriving at the cabin, Lesuer entered the front door, told defendant to wait outside, locked the front door, and then left through the back door and ran to an awaiting car. The investigators observed defendant wait for several minutes, then knock and pound on the door, and finally walk around the cabin to the sliding glass door at the back of the dwelling. Defendant testified that when he looked into the cabin and saw that Lesuer was not there, he left without entering. However, the evidence established that the front door of the cabin had been unlocked from the inside. As defendant attempted to drive away, the investigators stopped and arrested him.

II

Defendant argues that section 18-9-111(1)(d), 8 C.R.S. (1978), defining the offense of harassment, violates the due process clauses of the Colorado and United States Constitutions ⁷ because its critical language is impermissibly vague. We agree.

A penal statute must define an offense with sufficient clarity to permit ordinary people to understand what conduct is prohibited and in such manner that does not encourage arbitrary and discriminatory enforcement of the statute. Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); People v. Schoondermark, 699 P.2d 411 (Colo.1985); People v. Castro, 657 P.2d 932 (Colo.1983); People v. Allen, 657 P.2d 447 (Colo.1983). Thus, the due process clauses of the federal and Colorado constitutions require articulation of definite and precise standards capable of fair application by judges, juries, police and prosecutors. See Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Castro, 657 P.2d 932; Allen, 657 P.2d 447. As emphasized in Kolender, "[w]here the legislature fails to provide such minimal guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.' " 461 U.S. at 358, 103 S.Ct. at 1858 (quoting Goguen, 415 U.S. at 575, 94 S.Ct. at 1248).

Section 18-9-111(1)(d), 8 C.R.S. (1978), provides that a person commits the crime of harassment if, "with intent to harass, annoy, or alarm another person," such person "[e]ngages in conduct or repeatedly commits acts that alarm or seriously annoy another person and that serve no legitimate purpose." In Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975), this court found subsection (1)(e) of the harassment statute, which subsection prohibited certain communications, to be facially overbroad and, therefore, unconstitutional because the prohibitions contained therein impermissibly...