People v. Smith, s. 79SA224

• Decision Date: 14 September 1981
• Docket Number: 79SA271,80SA26 and 79SA313,Nos. 79SA224,s. 79SA224
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Kelly C. SMITH, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Eudell BERRY, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gerry R. JOHNSON, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John D. BROWN, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1

638 P.2d 1

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Kelly C. SMITH, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Eudell BERRY, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gerry R. JOHNSON, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John D. BROWN, Defendant-Appellee.

Nos. 79SA224, 79SA271, 80SA26 and 79SA313.

Supreme Court of Colorado, En Banc.

Sept. 14, 1981.

Rehearing Denied Nov. 30, 1981.

R. Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy, Denver, for plaintiff-appellant.

J. Gregory Walta, State Public Defender, Harvey M. Palefsky, Shelly Gilman, Deputy State Public Defenders, Denver, for defendants-appellees Gerry R. Johnson, Kelly C. Smith, and Eudell Berry.

Carl R. Mangino, Denver, for defendant-appellee John D. Brown.

LOHR, Justice.

Four cases pending before us were consolidated for disposition because they raise common issues concerning the constitutional validity of subsections (1) (a) and (b) of the second-degree sexual assault statute, section 18-3-403, C.R.S.1973 (1978 Repl.Vol. 8). In each case the prosecution appealed from an order of the trial court granting the defendant's pre-trial motion to dismiss second-degree sexual assault charges on the grounds that the statute defining the offense is unconstitutionally vague on its face and impermissibly delegates to the judiciary the legislature's power to define a crime. In one of the cases the trial judge also found the statute facially overbroad. ¹ We disagree with the conclusions reached by the trial courts on these issues and so reverse the orders of dismissal.

Based on individual incidents occurring between October of 1978 and November of 1979 each of the defendants in the four cases before us was charged by information in Denver District Court with violation of section 18-3-403, C.R.S.1973 (1978 Repl. Vol. 8). ² Our information about the offenses is limited to that contained in the charges. Prior to trial the defendants filed motions to dismiss, contending that section 18-3-403 is so vague and overbroad as to violate due process of law, U.S.Const. amend. XIV; Colo.Const. Art. II, § 25, and that it unconstitutionally delegates legislative power to the judicial branch of government, Colo.Const. Art. III. In each case the trial judge found section 18-3-403(1)(a) unconstitutionally vague and an unlawful delegation of legislative power and so dismissed the second-degree sexual assault charges founded on that statute. In People v. Brown (79SA313) the trial judge also found section 18-3-403(1)(b) void for vagueness and for unlawful delegation of legislative power, and found both subsections (a) and (b) of section 18-3-403(1) void for overbreadth as well.

The prosecution appealed pursuant to section 16-12-102, C.R.S.1973 (1978 Repl. Vol. 8), challenging all these rulings, and asserting that the defendants lack standing to challenge the statute for overbreadth. The defendants support the trial courts' rulings on the alternative basis that the challenged statutes impermissibly allow the victim to determine criminality in his or her discretion. We first address the vagueness issue, then the discretion of the victim, third the delegation of legislative power and finally the matter of overbreadth. As always, our starting place is the principle that one seeking to have a statute set aside as unconstitutional bears the burden of establishing its invalidity beyond a reasonable doubt. E. g., People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978); People v. Gonzales, 188 Colo. 272, 534 P.2d 626 (1975).

I.

Because claims of vagueness are frequently asserted, we have had many occasions to set forth the applicable legal standards and the reasons upon which they are based. See generally People in the Interest of C.M., Colo., 630 P.2d 593 (1981). Some of those standards bear repetition to set the stage for our consideration of the statutory language at issue here.

A statute claimed to be impermissibly vague must be closely scrutinized. E. g., People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977); People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975). If the challenged statute is capable of alternate constructions, one of which is constitutional, the constitutional interpretation must be adopted. E. g., People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979); People v. Hoehl, supra.

Several basic values are served by the prohibition of vague statutes. The requirement of fundamental fairness embodied in the concept of due process of law forbids prosecution of any individual for conduct which he would not reasonably understand to be proscribed. E. g., People v. Garcia, 189 Colo. 347, 541 P.2d 687 (1975). The vagueness doctrine also seeks to minimize that potential for arbitrary and discriminatory enforcement which inheres in criminal statutes of uncertain prohibitory scope. E. g., People in the Interest of C.M., supra; People v. District Court, 185 Colo. 78, 521 P.2d 1254 (1974). It serves as well to assure that courts and juries have adequate standards to enable them to apply the law consistently and in accord with legislative intent. See People v. Hoehl, supra; People v. Garcia, 189 Colo. 347, 541 P.2d 687 (1975). The commonly stated test for determining if a penal statute sufficiently serves these values is whether the statute "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application...." Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973). Although the test is easily stated, its application proves more formidable. It is to the latter task which we now turn.

The portions of section 18-3-403, C.R.S.1973 (1978 Repl. Vol. 8), relevant here describe the offense of second-degree sexual assault as follows:

Sexual assault in the second degree. (1) Any actor who knowingly inflicts sexual penetration or sexual intrusion on a victim commits sexual assault in the second degree if:

(a) The actor causes submission of the victim to sexual penetration by any means other than those set forth in section 18-3-402, ³ but of sufficient consequence reasonably calculated to cause submission against the victim's will; or

(b) The actor causes submission of the victim to sexual intrusion by any means of sufficient consequence reasonably calculated to cause submission against the victim's will; .... ⁴

The defendants argue that the phrase "by any means" is so open-ended as to be without meaning. We disagree with this contention.

As with first-degree sexual assault, the core conduct prohibited by the second-degree sexual assault statute is knowing sexual penetration on a non-consenting victim. ⁵ The first-degree sexual assault statute prohibits conduct which by its very nature negates the existence of the victim's consent. In order to constitute first-degree sexual assault, a victim's submission to sexual penetration must be caused by a defendant's use of "physical force or physical violence," or "threats of imminent death, serious bodily injury, extreme pain, or kidnapping to be inflicted on anyone," or "(threats) to retaliate in the future against the victim, or any other person." Section 18-3-402, C.R.S.1973. The victim's submission under such circumstances hardly can be deemed consensual. See Cortez v. People, 155 Colo. 317, 394 P.2d 346 (1964). The second-degree sexual assault statute also prohibits knowing sexual penetration on a non-consenting victim, but prescribes a lesser penalty because physical force or threats of serious injury are not present or because sexual intrusion and not sexual penetration is involved.

The defendants center their vagueness attack upon the language describing the conduct used to inflict nonconsensual sexual penetration: "by any means of sufficient consequence reasonably calculated to cause submission," (emphasis added). They recognize, as they must, that in People v. Barger, 191 Colo. 152, 550 P.2d 1281 (1976), and People v. Beaver, 190 Colo. 554, 549 P.2d 1315 (1976), we upheld the use of the phrase "of sufficient consequence reasonably calculated to overcome resistance" as not unconstitutionally indefinite in two prior statutes defining unlawful sexual behavior. In both cases we reaffirmed the principle that a penal statute framed so as to require the jury to determine a question of reasonableness "does not make it too vague to afford a practical guide to acceptable behavior." People v. Beaver, supra, at 556, 549 P.2d at 1316 (quoting from People v. Prante, 177 Colo. 243, 493 P.2d 1083 (1972)).

The defendants contend, however, that the statutes upheld in Beaver and Barger can be distinguished from the present statute since each limited the prohibited means to effect submission to use of threats. ⁶ The present statute expands the conduct prohibited to include "any means." This expansion, the defendants argue, makes the statute's coverage so amorphous as to lack any guidelines for determining guilt. We disagree. The operative language remains essentially unchanged. The crucial conduct is use of means of sufficient consequence reasonably calculated to cause nonconsensual submission to sexual penetration. That the means used need not necessarily constitute a threat does not render the statute incapable of comprehension by persons of ordinary intelligence.

A list of prohibited means is not necessary to ensure that the statute gives fair warning of its scope and provides meaningful guidelines for enforcement. The statute distinguishes between persons who obtain consent to sexual penetration and those who, by use of objectively sufficient means, threats or otherwise, cause nonconsensual submission. ⁷ While threats of a serious nature are illustrative of means...