People v. Torres, s. 92SA192

• Decision Date: 15 March 1993
• Docket Number: 92SA215,Nos. 92SA192,s. 92SA192
• Citation: 848 P.2d 911
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Victor Noel TORRES, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Daniel James SOLORIO, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 911

848 P.2d 911

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Victor Noel TORRES, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Daniel James SOLORIO, Defendant-Appellee.

Nos. 92SA192, 92SA215.

Supreme Court of Colorado,

En Banc.

March 15, 1993.

As Modified on Denial of Rehearing

April 12, 1993.

G.F. Sandstrom, Dist. Atty., Tenth Judicial Dist., David K. Gardner, Deputy Dist. Atty., Pueblo, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Janet Fullmer Youtz, Deputy State Public Defender, Denver, for defendant-appellee Victor Noel Torres.

David F. Vela, Colorado State Public Defender, Samuel Santistevan, Deputy State Public Defender, Denver, for defendant-appellee Daniel James Solorio.

Justice ERICKSON delivered the Opinion of the Court.

The prosecution appeals from judgments of dismissal entered by the trial courts in these two cases that have been consolidated for review in this court. The trial courts granted the motions of the defendants, Daniel J. Solorio and Victor N. Torres, to dismiss charges of felony menacing, which were filed pursuant to section 18-3-206, 8B C.R.S. (1986). ¹ The trial courts ruled that the conduct of felony menacing proscribed by section 18-3-206, a class five felony, is pragmatically indistinguishable from the conduct proscribed by section 18-9-106(1)(f), 8B C.R.S. (1986), disorderly conduct with a deadly weapon, a class two misdemeanor. ² Therefore, the trial courts held that section 18-3-206, as applied to the defendants, violated their equal protection rights under article II, section 25 of the Colorado Constitution. ³ We disagree and reverse the trial courts' judgments of dismissal.

I

A

On January 25, 1992, Terry Van Buskirk, a Pueblo policeman, observed two cars, a Plymouth and a Pontiac, driving side-by-side down a street in Pueblo. Van Buskirk observed a passenger in the Pontiac, who was later identified as Torres, pull his body out of the Pontiac while it was moving. While sitting on the door, Torres pulled a shotgun from inside the Pontiac and pointed it over the top of the Pontiac at three men in the Plymouth. The three men later told Van Buskirk that they all saw Torres point the shotgun at them and that they all feared for their lives. After observing Torres point the shotgun at the men in the Plymouth, Van Buskirk attempted to stop the Pontiac. Instead of pulling over as directed, the driver of the Pontiac led Van Buskirk on a high-speed chase through Pueblo, which ended when the Pontiac crashed. Torres was apprehended and charged with felony menacing.

Torres filed a motion to suppress statements he had made following his arrest as well as a motion to dismiss the felony menacing charges as a violation of his rights to equal protection of the laws pursuant to article II, section 25 of the Colorado Constitution. Torres alleged that the felony menacing statute, a class five felony, was indistinguishable from the disorderly conduct with a deadly weapon statute, a class two misdemeanor.

Following a hearing, the trial court granted Torres' motion to dismiss the felony menacing charges because it held that the statute was unconstitutional. The trial court equated the phrases "displaying a deadly weapon in a manner calculated to alarm" and "placing another person in fear of imminent serious bodily injury by use of a deadly weapon," as the actus reus of each crime. ⁴ The trial court therefore held that Torres had sustained his burden of establishing that the felony menacing statute was unconstitutional.

B

On July 1, 1991, Solorio stole a bottle of beer from a convenience store in Pueblo. When two store employees confronted Solorio in the parking lot, Solorio produced and displayed an eight-inch knife in a threatening manner and ran from the area. Both victims testified that Solorio's waving of the knife placed them in fear that they would be stabbed. The police later arrested Solorio at a fast food restaurant.

On July 8, 1991, the prosecution filed an information charging Solorio with two counts of aggravated robbery. On May 18, 1992, a preliminary hearing was held on the aggravated robbery charges. Following the hearing, the court found no probable cause to bind Solorio over on the charges, but that there was probable cause to support two counts of felony menacing. Solorio then moved for dismissal of the felony menacing charges based on the trial court's earlier ruling in People v. Victor Torres, No. 92CR89 (March 31, 1992). The trial court granted Solorio's motion and dismissed the charges.

II

A

We consolidated the two cases on appeal. The common issue in these cases is whether the felony menacing statute violates the equal protection clause of article II, section 25 of the Colorado Constitution because the elements of felony menacing are indistinguishable from the elements of disorderly conduct with a deadly weapon.

The equal protection clause guarantees like treatment of all who are similarly situated. People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (Colo.1975). The classification of persons under the criminal law must be under legislation that is reasonable and not arbitrary. People v. Marcy, 628 P.2d 69 (Colo.1981); Calvaresi, 188 Colo. at 281-82, 534 P.2d at 318. Accordingly, there must be substantial differences having a reasonable relationship to the persons involved and the public purpose to be achieved. Id. When two criminal statutes proscribe different penalties for the same conduct, a defendant who is convicted and sentenced under the harsher statute is denied equal protection of the laws. People v. Mozee, 723 P.2d 117, 126 (Colo.1986). In reviewing constitutional challenges to statutory provisions, legislation adopted by the General Assembly is presumed to be constitutional and the party asserting the unconstitutionality of any statute has the burden of proving such an assertion beyond a reasonable doubt. People v. Wilhelm, 676 P.2d 702, 704 (Colo.1984); People v. Rostad, 669 P.2d 126 (Colo.1983); People v. Caponey, 647 P.2d 668 (Colo.1982). If a statute is susceptible to different interpretations, one of which comports with constitutional requirements, the constitutional interpretation must be adopted. Wilhelm, 676 P.2d at 704-05; see also Bolles v. People, 189 Colo. 394, 541 P.2d 80, 83 (1975) (stating that whenever possible, a statute should be construed as to obviate or reduce constitutional infirmities).

B

The defendants claim that the felony menacing statute and the disorderly conduct statute as applied to their cases have the same mens rea, knowingly, and the same actus reus, the display of a deadly weapon in such a manner as to place another in fear.

The elements of the crime of menacing with a deadly weapon are that a defendant, using a deadly weapon, by threat or physical action, knowingly placed or attempted to place another person in fear of imminent serious bodily injury. See § 18-3-206, 8B C.R.S. (1986).

The elements of the crime of disorderly conduct with a deadly weapon are that a defendant, not being a peace officer, intentionally, knowingly, or recklessly, displayed a deadly weapon, in a public place, in a manner calculated to alarm. See § 18-9-106(1)(f), 8B C.R.S. (1986).

The trial court accepted the defendants' contentions that "placing or attempting to place another person in fear of imminent serious bodily injury by threat or physical action by the use of a deadly weapon," the actus reus of felony menacing, is the equivalent to "displaying a deadly weapon in a manner calculated to alarm," the actus reus of disorderly conduct with a deadly weapon.

The prosecution agrees that the mens rea requirement for the two offenses is the same, but asserts that the actus reus involved in the crimes is different. We agree with the prosecution that although the two statutes are not perfectly drafted, the actus reus required by each of the statutes is sufficiently distinguishable so that charging the defendants with either crime if the elements of each crime is satisfied is not unconstitutional. See People v. Bossert, 722 P.2d 998, 1003 (Colo.1986) (stating that the fact that particular conduct may violate two statutes is no basis for concluding that one of them violates equal protection), cert. denied, 493 U.S. 845, 110 S.Ct. 137, 107 L.Ed.2d 96 (1989); People ex rel. Russel v. District Court, 185 Colo. 78, 85, 521 P.2d 1254, 1255 (1974) (stating that it is not the role of this court to act as an overseer of all legislative action and declare statutes unconstitutional merely because we believe they could be better drafted or more fairly applied).

Generally, in order to subject a person to criminal liability, there must be a concurrence of the actus reus, an unlawful act, and the mens rea, a culpable mental state. Marcy, 628 P.2d at 73; see United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). The parties do not dispute that the mens rea required for the crimes charged in these cases is the same. The dispositive question in these cases is whether the actus reus for felony menacing is indistinguishable from the actus reus for disorderly conduct with a deadly weapon.

We addressed the specific question raised in these cases in People v. Crump, 769 P.2d 496 (Colo.1989). In Crump, the defendant was charged with felony menacing for knowingly placing or attempting to place the victim in fear of imminent serious bodily injury. The trial court in Crump submitted an instruction to the jury, which stated that the mens rea requirement of felony menacing required that the defendant specifically intend to place the victim in fear of imminent serious bodily injury. Crump, 769 P.2d at 497; see People v. Stout, 193 Colo. 466, 568 P.2d 52 (1977) (holding that an essential element of the crime of felony menacing is a specific intent to cause fear). The trial court submitted an additional instruction on the misdemeanor offense of disorderly conduct...