People v. Randall
| Decision Date | 09 December 1985 |
| Docket Number | No. 84SA235,84SA235 |
| Citation | 711 P.2d 689 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William RANDALL, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Virginia Byrnes Horton, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Michael J. Heher, Deputy State Public Defender, Denver, for defendant-appellant.
The defendant, William Randall, appeals his jury convictions on two counts of sexual assault on a child 1 and two counts of indecent exposure. 2 The defendant asserts that section 18-7-302, 8 C.R.S. (1978), violates the due process clauses of the United States and Colorado Constitutions. 3 He also contends that the trial court committed reversible error with respect to two rulings denying defense objections to the introduction of evidence and that the evidence does not support the indecent exposure convictions and one of the sexual assault on a child convictions. We affirm.
In May of 1982, the defendant was a resident of Meeker, Colorado, where he owned and operated a lawn care and yard work service. The victim of the defendant's alleged criminal conduct, an eleven-year-old boy, began to work for the defendant on May 25, 1982, as the result of an arrangement made between the victim's parents and the defendant. That day, the victim accompanied the defendant to a residence owned by a Meeker resident who was out of town and who had arranged to have the defendant take care of the property.
While at the house, the defendant and the victim played video games. The defendant at some point in time suggested that he and the victim play a video game called "strip bowling," the rules of which required participants to remove articles of clothing. The victim agreed, but as the game progressed he declined to remove any more clothing. The victim testified that he did not think that playing this game "was too good." The defendant, however, removed all of his clothing during the game.
When the game ended, the two dressed and the defendant showed the victim two magazines containing sexually explicit photographs. When the victim expressed curiosity about the act of sexual intercourse, the defendant led the victim to an upstairs bedroom, laid down on a bed, and engaged in self-masturbation. The victim engaged in similar conduct. The defendant then proceeded to lie on top of the victim and to rub his penis against the victim's penis. The victim resisted this activity, and the defendant ultimately got up. The two then dressed, left the house, and went for a drive in the defendant's car on Sulphur Creek Road, a road which runs about six miles outside of Meeker. Before returning with the victim, the defendant stopped the car, removed his clothes and again masturbated.
The next day, May 26, the victim again reported for work to the defendant. The two traveled to the house they had visited the day before and again played the "strip bowling" game. The victim did not remove any of his clothing; however, the defendant did remove all of his clothes during the course of the game.
On the next day, May 27, the defendant drove the victim up Sulphur Creek Road and repeated the conduct of the two days before. Before returning home, however, the defendant put his hand into the victim's pants. Similar conduct occurred on June 1--the last time the victim went to work for the defendant. However, on this date, the defendant grabbed the victim's hand and told him to masturbate the defendant, and the victim complied.
Approximately one week after this last incident, the victim told his mother what had transpired during his encounters with the defendant. The defendant's conduct was reported to the Meeker Police Department, and the defendant subsequently was arrested. Certain magazines, including the two the defendant had shown to the victim, were seized at the time of the defendant's arrest. 4
The defendant was initially charged with two counts of sexual assault on a child allegedly occurring on May 25 and June 1, 1982. The information was subsequently amended to add two counts of indecent exposure allegedly occurring on May 26 and 27, 1982.
The defendant challenges section 18-7-302(1), 8 C.R.S. (1978), on due process grounds. The statute states as follows:
A person commits indecent exposure if he knowingly exposes his genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person.
The defendant first argues that the statute fails to specify whether a person must be aware that his conduct is likely to cause affront or alarm to a particular person or to a hypothetical reasonable person--i.e., whether the statute employs a subjective or an objective standard. He next argues that the words "affront" and "alarm" are too vague and indefinite in meaning to express ascertainable standards of proscribed conduct.
Every legislative enactment is presumed constitutional, and one who asserts the unconstitutionality of a statute has the burden of demonstrating the asserted impropriety beyond a reasonable doubt. People v. Schoondermark, 699 P.2d 411 (Colo.1985); People v. Enea, 665 P.2d 1026 (Colo.1983).
When a statute is challenged as void for vagueness, the statutory language must be measured by an inquiry into whether the legislation forbids or requires the doing of an act in terms so lacking in specific meaning that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application. Schoondermark, 699 P.2d 411; Enea, 665 P.2d 1026. Two interests deeply rooted in our concept of due process of law are reflected by this test. The interest of accurate and adequate warning requires that a penal statute be framed with sufficient clarity to alert all who are subject to its sanctions to the nature of the proscribed behavior and to inform them of permissible standards of conduct, that they may conduct themselves accordingly. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); People v. Allen, 657 P.2d 447 (Colo.1983). The interest in preventing selective and arbitrary application of laws requires legislative bodies to establish definite minimal guidelines to govern law enforcement; otherwise, police, prosecutors and juries would be encouraged to exercise their personal perspectives without significant restraint. Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); see People v. Norman, 703 P.2d 1261 (Colo.1985); People v. Jennings, 641 P.2d 276 (Colo.1982); People v. Beruman, 638 P.2d 789 (Colo.1982). Both interests are furthered by the vagueness test above described.
Other rules of construction are available to assist the task of determining whether a particular statute satisfies due process specificity requirements. If a challenged statute is capable of alternative constructions, one of which is constitutional, the constitutional interpretation must be adopted. Schoondermark, 699 P.2d 411; People v. Moyer, 670 P.2d 785 (Colo.1983); Jennings, 641 P.2d 276. Furthermore, due process standards do not require scientific precision in draftsmanship; while statutory language must be sufficiently specific to meet minimal due process requirements, it frequently must remain sufficiently general to be capable of flexible application to varied circumstances. People v. Castro, 657 P.2d 932 (Colo.1983); People ex rel. City of Arvada v. Nissen, 650 P.2d 547 (Colo.1982) Association; Colorado Auto & Truck Wreckers v. Department of Revenue, 618 P.2d 646 (Colo.1980). These principles of statutory construction are relevant to the analysis of the defendant's arguments.
The defendant contends that while the statutory phrase "other person" suggests that the offender must personally be aware that the victim will be caused affront or alarm, the word "likely" suggests that an offender's conduct must be measured by determining whether a reasonable person would be affronted or alarmed thereby. On the basis of this analysis, he concludes that the statute fails to delineate whether a subjective or an objective test is to be applied to conduct arguably prohibited by its provisions. We do not agree.
The term "likely" is a word of general usage and common understanding. It is broadly defined as "of such a nature or so circumstantial as to make something probable ... having a better chance of existing or occurring than not." Webster's Third New International Dictionary at 1310 (ed. 1976). Concepts of probability and reasonableness are integral ingredients of any objective measure of conduct. The use of the word "likely" indicates that the General Assembly intended the prohibited conduct to be measured by an objective test.
The statute delineates the elements of the offense as a (1) knowing (2) exposure of genitals to the view of any person (3) under circumstances in which the exposure is likely to cause affront or alarm to the other person. Whether a particular victim is in fact affronted or alarmed by the prohibited conduct is not a material element of the offense. It follows that evidence of a victim's reaction to an act of indecent exposure or of the perpetrator's awareness or comprehension of that particular reaction is not required to establish the offense. We conclude, therefore, that the statute sets forth a readily identifiable objective standard for measuring the conduct proscribed by its terms.
This reading of the indecent exposure statute is supported by our decision in People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976). In that case, we faced a somewhat similar vagueness challenge to a subsection of the harassment statute, § 18-9-111(1)(h), 8 C.R.S. (1978), which subsection provides as follows:
(1) A person commits harassment if, with intent to harass, annoy, or alarm another...
To continue reading
Request your trial
-
Moll v. Abbott Laboratories
...... People v Randall, 711 P2d 689, 692 [Colo, 1985]." . The term "possible," on the other hand, connotes a lesser standard of information ......
-
U.S.A v. Whitten
...United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir.2004), did not mislead the jury as to the correct standard, see People v. Randall, 711 P.2d 689, 692 (Colo.1985) (defining “likely” as synonymous with see also Fadiga v. Attorney Gen. of the U.S., 488 F.3d 142, 154 (3d Cir.2007) ( “[T]he......
-
People v. Pratt, 86SA401
...of alternative constructions, one of which is constitutional, then the constitutional interpretation must be adopted. People v. Randall, 711 P.2d 689, 692 (Colo.1985). Section 18-8-105 provides in pertinent (1) A person is an accessory to crime if, with intent to hinder, delay, or prevent t......
-
Wisneski v. State
...and thus, "the statute's proscriptions can be committed in one's own home." Id. at 319, 320, 793 P.2d 116. See also People v. Randall, 711 P.2d 689, 695 (Colo.1985) (affirming conviction of defendant for public indecency where exposed himself to an eleven-year old boy while inside a client'......