People v. Rowerdink, 86SA209

• Decision Date: 23 May 1988
• Docket Number: No. 86SA209,86SA209
• Citation: 756 P.2d 986
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Brian ROWERDINK, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 986

756 P.2d 986

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Brian ROWERDINK, Defendant-Appellant.

No. 86SA209.

Supreme Court of Colorado,

En Banc.

May 23, 1988.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.

T. Curtis Bobbitt, Colorado Springs, for defendant-appellant.

MULLARKEY, Justice.

The defendant, Richard Brian Rowerdink, appeals his conviction of unlawful possession of an incendiary device. The issues which he raises include the claimed unconstitutionality of the explosive or incendiary device statute, section 18-12-109, 8 C.R.S. (1984), the failure of the trial court to grant the defendant's motion to suppress and to compel disclosure of the identity of a government informant, the trial court's failure to declare a mistrial and to grant the defendant's motions for judgment of acquittal, the trial court's allowance of certain testimony by prosecution witnesses, and the trial court's failure to appoint a special prosecutor. ¹ We uphold the constitutionality of the explosive or incendiary device statute and find no error in the proceedings below. Accordingly, we affirm.

I.

On June 20, 1984, the Colorado Springs police department received a telephone call from an anonymous informant regarding the theft of over 100 sticks of dynamite and the discovery of ten sticks of this stolen dynamite by two small children. The police department assigned # 1303 to the anonymous caller and confirmed that the incident involving the children had occurred. On June 21, 1984, caller # 1303 again telephoned the Colorado Springs police department and stated that two cases of the stolen dynamite had been purchased by a "very radical" resident of Colorado Springs who owned a business in Colorado Springs with offices in Denver and Los Angeles, California. The business was described as "protecting the public." The caller also identified the seller of the dynamite as Barry Lynn Curtis. While typing a report related to these phone calls, a police department secretary recognized, from previous information she had acquired, the business described by caller # 1303 as the defendant's business.

The police then began an investigation of the defendant which disclosed that the defendant previously had been investigated for operating a merchant patrol guard business without a license. At that time, the defendant described his business as a night-time operation providing security for various select industries and stated that his employees dressed in black coveralls, relied primarily on stealth and cunning in performing their job tasks, and were thoroughly trained in hand-to-hand combat. The defendant had obtained several certificates from the National Rifle Association which indicated a degree of expertise in firearms. The defendant also had contacted the Colorado Springs police department offering to volunteer his services to the department in providing security for a sports festival. He stated that his organization was capable of infiltrating "terrorist and protestor" groups, that the organization was equipped with various types of weaponry and communication equipment, that it was quite capable of being a formidable force in difficult situations, and that it was not to be underestimated. The police also learned that the defendant had contacted a real estate sales agent seeking to rent or purchase land for the "tactical training" of his security officers.

On June 29, 1984, the police interviewed caller # 1303 in person. Caller # 1303 stated that Curtis was selling dynamite to fanatical groups in the Colorado Springs area. When caller # 1303 was asked about the defendant, he confirmed that the defendant was the party who had purchased the dynamite. Caller # 1303 stated that he had been in the defendant's residence and had observed various rifles and weapons in the residence, that the defendant had stated to him that the weapons were "booby-trapped" with military explosives, and that the defendant possessed an experimental nerve gas mask which was stolen from Fort Carson. He also said that he had received a telephone call from the defendant asking for Curtis, that Curtis then arranged to sell dynamite to the defendant, that following this phone conversation, he observed Curtis drive away in his pickup truck with dynamite loaded in the bed of the truck, and that Curtis returned at a later time without the dynamite. Caller # 1303 informed the police that he had observed a supply of Molotov cocktails in the defendant's garage. ²

Officers of the police department then interviewed Curtis. On July 4, 1984, Curtis identified the defendant as the party to whom he had been selling dynamite. Curtis also directed the officers to a location where he had buried two cases of dynamite, which dynamite was recovered by the officers. The officers also verified that utility services were billed to the defendant for a residence at the address where caller # 1303 stated that he had observed weapons and Molotov cocktails.

Based on this information, which was provided to the issuing magistrate in the form of an application and affidavit for warrant, the police department obtained an arrest warrant for the defendant and a search warrant to search his residence and three automobiles for explosives, records of the sale, purchase or storage of explosives, illegal automatic weapons, an experimental nerve gas mask, smoke bombs, teargas grenades, and Molotov cocktails. On July 5, 1984, the police executed these warrants and recovered from the garage of the defendant several Grolsch beer bottles which are resealable bottles made of heavy glass. Each bottle contained a mixture of gasoline and oil and had a strip of denim attached to the neck of the bottle. A similar bottle was recovered from the defendant's car.

The defendant was convicted by a jury of two counts of possession of an incendiary device, and was sentenced to two years of probation. He now appeals this conviction.

II.

The defendant argues that section 18-12-109, 8 C.R.S. (1984), is unconstitutionally overbroad and vague because it requires only possession of the prohibited article and knowledge of that possession, rather than wrongful intent. The defendant argues that these items may be possessed for innocent purposes, and that therefore the state legislature has no legitimate interest in prohibiting their possession. We find that the defendant's argument is without merit.

Section 18-12-109(2) provides: "Any person who knowingly possesses or controls an explosive or incendiary device commits a class 4 felony." Section 18-12-109(1) defines "explosive or incendiary device" as including "[a]ny incendiary bomb or grenade, firebomb, or similar device, including any device, except kerosene lamps, which consists of or includes a breakable container including a flammable liquid or compound and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound and can be carried or thrown by one individual acting alone."

A statute is presumed to be constitutional. E.g., People v. Moore, 674 P.2d 354, 357 (Colo.1984); People v. Garcia, 197 Colo. 550, 552, 595 P.2d 228, 230 (1979). The party attacking the constitutionality of a statute has the burden to establish its unconstitutionality beyond a reasonable doubt. E.g., Moore, 674 P.2d at 357; People v. Alexander, 663 P.2d 1024, 1027 (Colo.1983). Where no fundamental right or suspect class is involved, a statute is constitutional if it is rationally related to a legitimate government interest. People v. Pharr, 696 P.2d 235, 237 (Colo.1984); People v. Myrick, 638 P.2d 34, 37 (Colo.1981). The state has a legitimate interest in controlling harmful conduct which is not constitutionally protected. People v. Fitzgerald, 194 Colo. 415, 419, 573 P.2d 100, 103 (1978).

An overbreadth challenge usually is applicable to legislative enactments which threaten the exercise of fundamental or express constitutional rights. Garcia, 197 Colo. at 552, 595 P.2d at 230; see Moore, 674 P.2d at 359; Fitzgerald, 194 Colo. at 419, 573 P.2d at 103. A statute also may be overbroad if, in addition to proscribing conduct which can be prohibited under the state's police power, it purports to prohibit conduct that is not within the police power. People v. Sequin, 199 Colo. 381, 384, 609 P.2d 622, 624 (1980); see Garcia, 197 Colo. at 553, 595 P.2d at 230. A legislative enactment is within the state's police power if it is reasonably related to the public health, welfare, or safety. E.g., Pharr, 696 P.2d 235, 237; Garcia, 197 Colo. at 553, 595 P.2d at 230.

The defendant does not allege that the statute at issue impinges upon a fundamental right or other constitutionally protected interest or that a suspect class is implicated. He does contend that the statute prohibits legitimate conduct that is not within the state's police power. ³ We have upheld other possession statutes against similar constitutional challenges. We have held, for instance, that it is within the state police power to prohibit the possession of a firearm while under the influence of drugs or alcohol because such action is reasonably related to the public health, welfare, and safety, Garcia, 197 Colo. at 553, 595 P.2d at 230, and that the legislature may classify the receipt of non-stolen property, when believed to be stolen by the receiver, as a felony because such action is rationally related to the legitimate governmental interest in seeking to interrupt the flow of stolen property, Myrick, 638 P.2d at 37. The purpose of the incendiary device statute is to prohibit the possession of items with intrinsic harmful potential. People v. Lovato, 630 P.2d 597, 600 (Colo.1981). The legislature has a legitimate interest in prohibiting the possession of items which it reasonably believes to be intrinsically harmful regardless of the...