People v. Terry

• Court: Colorado Supreme Court
• Writing for the Court: ROVIRA; VOLLACK; ERICKSON; VOLLACK
• Citation: People v. Terry, 720 P.2d 125 (Colo. 1986)
• Decision Date: 02 June 1986
• Docket Number: No. 84SA380,84SA380
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas J. TERRY, Defendant-Appellant.

Page 125

720 P.2d 125

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas J. TERRY, Defendant-Appellant.

No. 84SA380.

Supreme Court of Colorado En Banc.

June 2, 1986.

Rehearing Denied June 23, 1986.

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

Martin, Knapple, Humphrey & Tharp, Joel C. Maguire, Donald J. Humphrey, Boulder, for defendant-appellant.

ROVIRA, Justice.

Douglas J. Terry, the defendant, was convicted in the Boulder County District Court of second-degree sexual assault. He appeals his conviction asserting that the statute under which he was convicted, section 18-3-403(1)(h), 8 C.R.S. (1978), is unconstitutional. ¹ He also contends that the trial court erred in denying his request to present surrebuttal evidence. We uphold the constitutionality of the statute but reverse and remand for a new trial because the defendant should have been allowed to present surrebuttal evidence. Because we order a new trial, we deem it unnecessary to decide the other issues raised by the defendant.

I.

Defendant was charged with second-degree sexual assault as a result of a criminal complaint filed by J.G. She alleged that the defendant, a licensed, practicing chiropractor in Boulder, Colorado, sexually assaulted her while conducting a vaginal examination. The assault allegedly occurred on January 20, 1982, in a treatment room in the defendant's chiropractic offices in Boulder. In a trial to the court, J.G. claimed, in essence, that the defendant stimulated her clitoris under the guise of performing a cursory examination for a vaginal infection. She also testified that while the defendant was stimulating her clitoris, he inserted his fingers into her vagina. The defendant admitted that he had performed a cursory visual examination on J.G. but denied stimulating her clitoris or placing his fingers in her vagina. No one else was in the room during the examination.

II.

Defendant contends that section 18-3-403(1)(h), 8 C.R.S. (1978), is unconstitutionally vague and overbroad. That section provides:

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:

....

(h) The actor engages in treatment or examination of a victim for other than bona fide medical purposes or in a manner substantially inconsistent with reasonable medical practices.

At the trial court, the defendant moved to dismiss the charge of second-degree sexual assault on the ground, inter alia, that the phrase "bona fide medical purposes" is unconstitutionally vague. The trial court denied this part of the defendant's motion. ²

In evaluating defendant's vagueness challenge, we bear in mind that a statute is presumed to be constitutional and the burden is on the party attacking the statute to establish its unconstitutionality beyond a reasonable doubt. People v. Gross, 670 P.2d 799 (Colo.1983); People v. Phillips, 652 P.2d 575 (Colo.1982). In order to withstand a vagueness challenge, a statute should be sufficiently specific to inform a person of common intelligence of the standards of conduct imposed and to give fair warning of the acts which are prohibited. Gross, 670 P.2d at 800-01; People v. Castro, 657 P.2d 932, 939 (Colo.1983). A criminal statute is not unconstitutional because it fails to define every word or act that constitutes an element of the offense. Gross, 670 P.2d at 800. We realize that while a statute should be sufficiently specific to give fair warning of the proscribed conduct, it should also be sufficiently general "to address the essential problem under varied circumstances and during changing times." Castro, 657 P.2d at 939. Finally, the harsh remedy of voiding a statute should be employed only where the statute provides no discernible standards at all for defining proscribed conduct. People v. Smith, 638 P.2d 1, 6 (Colo.1981); People v. Garcia, 189 Colo. 347, 350, 541 P.2d 687, 689 (1975).

In claiming that the phrase "bona fide medical purposes" is unconstitutionally vague, the defendant correctly asserts that the terms "bona fide" and "medical purpose" are not defined in the criminal code. However, failure by the legislature to define these terms is by no means fatal to the validity of the statute. We have often stated that the legislature is not constitutionally required to specifically define the readily comprehensible and every day terms used in statutes. Further, we have often referred to dictionaries and to the case law to determine the probable legislative intent in using a particular word. People v. Blue, 190 Colo. 95, 100-01, 544 P.2d 385, 388-89 (1975).

Black's Law Dictionary (5th ed. 1979), defines "bona fide" as follows: "In or with good faith; honestly, openly, and sincerely; without deceit or fraud. Truly; actually; without simulation or pretense. Innocently; in the attitude of trust and confidence; without notice of fraud, etc. Real, actual, genuine, and not feigned." Id. at 160 (citations omitted); cf. People v. Pal, 56 A.D.2d 640, 391 N.Y.S.2d 702, 703 (1977) ("In the context of the physician-patient relationship, 'good faith' means 'for a bona fide medical purpose.' ").

The term "medical" is defined by Black's as follows: "Pertaining, relating, or belonging to the study and practice of medicine, or the science and art of the investigation, prevention, cure, and alleviation of disease." Id. at 885. Courts have also broadly defined the term "medical." For example, in Newhook v. Blum, 72 A.D.2d 567, 421 N.Y.S.2d 11, 12 (1979), the court held that since the applicable statute permitted a transportation allowance for "medical care," petitioner was entitled to a transportation allowance for his expenses in getting to and from a rehabilitation center. In Kahn v. Metropolitan Life Insurance Co., 132 N.J.L. 503, 41 A.2d 329 (1945), the Supreme Court of New Jersey held that chiropractic treatments or adjustments constituted "medical or surgical treatment or attention" as that term was used in a life insurance policy. The court further stated that "[t]he word 'medical' means 'of, pertaining to, or dealing with, the healing art, or the science of medicine; especially in the narrower sense; as, medical profession; medical services; medical jurisprudence'; ...." 41 A.2d at 331. In Zeh v. National Hospital Association, 233 Or. 221, 377 P.2d 852, 857 (1963), the Supreme Court of Oregon held that chiropractic services consisting of heat treatment, massage, and adjustment constituted "medical care" within the purview of a medical insurance policy.

Finally, Black's defines the term "purpose" as follows: "That which one sets before him to accomplish; an end, intention, or aim, object, plan, project." Id. at 1112.

Based on the foregoing definitions, we hold that for purposes of applying section 18-3-403(1)(h), sexual penetration or intrusion made during treatment or examination is for other than "bona fide medical purposes" when it is not taken in good faith, honestly, and sincerely in the course of investigating, preventing, alleviating, or curing a disease or malady. Hence, section 18-3-403(1)(h) is not void for vagueness. The phrase "bona fide medical purposes" provides a sufficiently clear and practical guide for law-abiding behavior for a person of ordinary intelligence.

Relying on specific language found in Colorado Chiropractic Association v State, 171 Colo. 395, 467 P.2d 795 (1970), defendant next argues that, by definition, a chiropractor never treats or examines for "medical purposes" and therefore he should not have been convicted under section 18-3-403(1)(h). We disagree.

In Colorado Chiropractic, the Colorado Chiropractic Association challenged, on equal protection and due process grounds, the constitutionality of a statute which required the coroner to be notified of any death occurring "without medical attendance." § 66-8-7, 4 C.R.S. (1963). The Department of Health had construed the statute to mean that, where a person dies while under the care of a chiropractor, it is a "death occurring without medical attendance." 171 Colo. at 397, 467 P.2d at 796. This construction had the effect of prohibiting a chiropractor from signing a death certificate. In construing the phrase "without medical attendance," the court looked to the statutory chapters dealing with the healing arts and focused on the term "practice of medicine" because it was the "closest term to 'medical attendance' to be found in the chapters relating to the healing arts." 171 Colo. at 399, 467 P.2d at 797. The court placed particular emphasis on a statutory provision which required that a "physician or official" sign the death certificate. After examining statutes relating to "practice of medicine," the court concluded that "the term 'physician' relates solely to doctors of medicine and doctors of osteopathy." 171 Colo. at 401, 467 P.2d at 799 (citing State v. Fahey, 152 Minn. 220, 188 N.W. 260 (1922)). In short, the court refused to include chiropractors within the definition of "physician" and thereby denied chiropractors the authority to sign death certificates. Here, however, we are concerned with the term "medical purposes." Merely because one is not a "physician" does not preclude that person from engaging in "medical purposes."

Section 12-33-102(1), 5 C.R.S. (1985), supports the proposition that chiropractors engage in "medical" activities. That section provides, in pertinent part:

12-33-102. Definitions. As used in this article [chiropractors], unless the context otherwise requires:

(1) "Chiropractic" means that branch of the healing arts which is based on the premise that disease is attributable to the abnormal functioning of the human nervous system. It includes the diagnosing and analyzing of human ailments and seeks the elimination of the abnormal functioning of the human nervous system by...