People v. Plemmons, Court of Appeals No. 18CA0481

Docket NºCourt of Appeals No. 18CA0481
Citation490 P.3d 1112
Case DateFebruary 04, 2021
CourtCourt of Appeals of Colorado

490 P.3d 1112

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Cheryl Lynette PLEMMONS, Defendant-Appellant.

Court of Appeals No. 18CA0481

Colorado Court of Appeals, Division I.

Announced February 4, 2021


Philip J. Weiser, Attorney General, Daniel De Cecco, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE GROVE

¶ 1 After she spat on two deputies conducting a welfare check in her home and then spat on one of them again while detained in the back of a police cruiser, defendant, Cheryl Lynette Plemmons, was charged with three counts of second degree assault for causing bodily fluids to come into contact with a peace officer. A jury found her guilty of each of the charges — two under section 18-3-203(1)(h), C.R.S. 2020, and one under section 18-3-203(1)(f.5), C.R.S. 2020.

¶ 2 In this appeal, Plemmons contends that two of her convictions should be reversed because section 18-3-203(1)(h) is unconstitutionally vague, and that in any event the evidence at trial was insufficient to establish that she spat on the deputies with the intent to "infect, injure, or harm" them, as the statute requires. She also asserts that all three of her convictions should be reversed because the trial court erroneously instructed the jury on the definition of "harm," and that the trial court erred by not holding an evidentiary hearing on her motion to suppress. Because we disagree with her arguments, we affirm Plemmons's convictions.

I. Background

¶ 3 On December 28, 2016, Plemmons planned to commit suicide. She called a friend, explained that she wanted to end her life, and asked the friend to come get her dog. Plemmons's friend anonymously called the police. Two sheriff's deputies, Scott Blakely and Richard Paige, responded to Plemmons's home for a welfare check.

¶ 4 When they arrived, Plemmons was at home with another friend, Harry Waterman. As soon as the deputies entered the house, Plemmons, who was visibly drunk, began berating them and insulting them in a variety of colorful ways. She repeatedly told them to leave. Eventually, Plemmons became calm enough to talk to Deputy Paige, and they began discussing her suicide plans. She talked about slitting her throat and then picked up a small pen knife, pointed it at one of the deputies, and flung it across the room. The handle hit Waterman in the back but did not injure him.

¶ 5 In response, the deputies handcuffed Plemmons and placed her in protective custody for her safety and theirs. Because it was

490 P.3d 1116

cold outside and Plemmons was not dressed for the weather, they helped Plemmons put on her coat and boots. As they did so, Deputy Blakely explained to Plemmons that they were transporting her to Mercy Medical Center to be treated. Plemmons responded by intentionally spitting in both deputies’ faces. The protective custody then turned into an arrest.

¶ 6 The deputies placed Plemmons in the back of a patrol car for transport to Mercy Medical Center. As Deputy Paige drove, Plemmons continued to yell obscenities and insults. She also spit on Deputy Paige's face and head through the partition. The spitting was so intense that Deputy Paige pulled over and placed a spit hood over Plemmons's head.

¶ 7 For the spitting incidents inside the house, Plemmons was charged with two counts of second degree assault under section 18-3-203(1)(h). For spitting on Deputy Paige in the patrol car, Plemmons was charged with one count of second degree assault under section 18-3-203(1)(f.5). A jury found her guilty of all charges.

II. Vagueness Challenge

¶ 8 Plemmons contends that section 18-3-203(1)(h), under which a person commits second degree assault if she spits on a peace officer with "intent to infect, injure, or harm," is unconstitutionally vague, both facially and as applied to her. We disagree.

A. Governing Law and Standard of Review

¶ 9 We review constitutional challenges to statutes de novo, and a party challenging a statute's constitutionality "bears the burden of proving its unconstitutionality beyond a reasonable doubt." Dean v. People , 2016 CO 14, ¶ 8, 366 P.3d 593. We will not invalidate a statute unless it is so infirm that it cannot be preserved by adopting a limiting construction consistent with the legislature's intent. Whimbush v. People , 869 P.2d 1245, 1248 (Colo. 1994).1

¶ 10 "The essential inquiry in addressing a void for vagueness challenge is whether the statute ‘forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application.’ " People v. Gross , 830 P.2d 933, 937 (Colo. 1992) (citation omitted). "This requirement of reasonable definiteness provides assurance that a penal statute gives fair warning of proscribed conduct so that persons may guide their actions accordingly." People v. Devorss , 277 P.3d 829, 835 (Colo. App. 2011). It also "ensures that statutory standards are sufficiently specific so that police officers and other actors in the criminal justice system can avoid arbitrary and discriminatory application." People in Interest of L.C. , 2017 COA 82, ¶ 8, 486 P.3d 1168. "The degree of vagueness tolerated depends on the nature of the enactment ...." People v. Graves , 2016 CO 15, ¶ 18, 368 P.3d 317. Statutes that threaten "to inhibit speech or expressive conduct protected by the First Amendment" require greater specificity than statutes that do not. Id.

¶ 11 Plemmons filed a motion to dismiss that raised a vagueness challenge to section 18-3-203(1)(h), thereby preserving this issue for appeal.

B. Analysis

¶ 12 As relevant here, a person commits second degree assault if

[w]ith intent to infect, injure, or harm another person whom the actor knows or reasonably should know to be engaged in the performance of his or her duties as a peace officer, ... she causes such person to come into contact with ... saliva ... by
490 P.3d 1117
any means, including by throwing, tossing, or expelling such fluid or material.

§ 18-3-203(1)(h).

¶ 13 The crux of Plemmons's argument is that the evidence did not establish that she intended to infect or injure the deputies by spitting on them while in her home, and that, in the absence of a statutory definition, the remaining possibility — that she committed second degree assault because she intended to "harm" them — is unconstitutionally vague. Although we determine that "harm" as it appears in section 18-3-203(1) is ambiguous, it does not follow from that conclusion that section 18-3-203(1)(h) is unconstitutionally vague, either facially or as applied. See People v. Rostad , 669 P.2d 126, 128 (Colo. 1983) ("Analytical difficulty cannot be deemed synonymous with constitutional vagueness."). Rather, via section 18-3-203(1)(h) and section 18-3-204(1)(b), C.R.S. 2020 (third degree assault), the General Assembly has made clear that it is a criminal act to intentionally spit on a peace officer with any malign intent. And while that statutory proscription is not, on its own, dispositive of Plemmons's vagueness challenge, we also conclude that the lack of a definition of "harm" does not invite arbitrary or discriminatory enforcement because the General Assembly's intent may be ascertained by resorting to the legislative history and the rules of statutory construction.

¶ 14 Consistent with the supreme court's directive in Graves , ¶ 25, we first "examine the vagueness of the law in light of [Plemmons's] conduct" before turning to her facial challenge.

1. As-Applied Challenge

¶ 15 "Vague laws are unconstitutional because they offend due process" by, in part, "fail[ing] to give fair notice of the conduct prohibited." People v. Hickman , 988 P.2d 628, 643 (Colo. 1999). Arguing that her conduct was "at the ill-defined margin of second and third degree assault," Plemmons contends that section 18-3-203(1)(h) did not provide her with adequate notice of the mens rea associated with second degree assault.

¶ 16 "A law is unconstitutional only if it ‘is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’ " Bd. of Educ. v. Wilder , 960 P.2d 695, 703 (Colo. 1998) (quoting Coates v. City of Cincinnati , 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) ). Thus, to prevail on an as-applied constitutional challenge, "it must be shown that the statute does not, with sufficient clarity, prohibit the conduct against which it is enforced." People in Interest of L.C. , ¶ 10.

¶ 17 Irrespective of whether it amounts to a felony or misdemeanor, Colorado law plainly proscribes intentionally spitting in a police officer's face with malign intent. See Graves , ¶ 19 ("Because due process objections to vagueness rest on lack of notice, such challenges cannot succeed in a case where reasonable persons would know that their conduct puts them at risk."). No matter what Plemmons hoped to accomplish by her actions, no reasonable person could conclude that they were permissible under Colorado law. Her as-applied challenge...

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