People v. West

• Decision Date: 25 August 1986
• Docket Number: No. 84SA210,84SA210
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joel Saunders WEST, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 623

724 P.2d 623

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joel Saunders WEST, Defendant-Appellant.

No. 84SA210.

Supreme Court of Colorado En Banc.

Aug. 25, 1986.

Rehearing Denied Sept. 15, 1986.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Nathan Coats, John Daniel Dailey, Eric Perryman, Asst. Attys. Gen., Denver, for plaintiff-appellee.

William F. Reynard, Gerald E. Piper, Denver, for defendant-appellant.

QUINN, Chief Justice.

The defendant, Joel Saunders West, appeals his conviction for sexual assault on a child. He claims that the statutory definition of "sexual contact" in section 18-3-401(4), 8 C.R.S. (1978), which definition is an essential component of the crime of sexual assault on a child, is unconstitutionally vague in violation of due process of law. ¹ In addition to his constitutional challenge, West also contends that the district court erred in denying his challenge for cause to a prospective juror and that the evidence was insufficient to support the jury verdict. We are unpersuaded by his claims, and we accordingly affirm the judgment.

I.

An information was filed alleging that the defendant on July 27, 1982, in Garfield County, Colorado, committed the crime of sexual assault on a child by knowingly subjecting a boy less than fifteen years old to "sexual contact" and that the defendant at this time was at least four years older than the boy. Prior to trial the defendant unsuccessfully moved to dismiss the charge, claiming that the statutory definition of "sexual contact" was unconstitutionally vague in violation of the Due Process Clauses of the United States and Colorado Constitutions. U.S. Const. amend. XIV; Colo. Const. art. II, sec. 25. The district court denied the defendant's motion to dismiss.

Trial to a jury commenced on April 20, 1983. During jury selection a prospective juror, Ms. Seubert, acknowledged that she was a former aunt by marriage to one of the prosecution witnesses, Jennifer Sherman, who was an eyewitness to the offense charged. The juror stated that twenty years earlier she had been married to the brother of the father of Jennifer Sherman, but that, having since remarried, she had not seen Jennifer very much throughout the years and had little contact with her family. In response to a question by defense counsel, Ms. Seubert stated that she believed Jennifer was a truthful person. She went on to state, however, that if she felt Jennifer was wrong in her testimony, she would be able to reject her testimony. Defense counsel, without specifying the legal basis for the challenge, asked that the juror "be excused for cause." The trial court denied the challenge, noting that the juror during voir dire communicated "a genuine desire to evaluate this witness' testimony as she would any other witness' [testimony]." The defendant chose not to exercise any of his five peremptory challenges against Ms. Seubert, and she served on the case.

The evidence at trial established the following sequence of events with respect to the charge. On July 27, 1982, Jennifer Sherman, a lifeguard at the Hot Springs Athletic Club pool in Glenwood Springs, observed the defendant, a middle-aged man, swimming and playing with a ten year old boy in the pool. Sherman paid particular attention to the defendant because a week earlier another pool patron reported that she had seen the defendant swimming with another boy and had overheard the defendant asking for the other boy's telephone number. Suspecting that the defendant might be engaging in inappropriate conduct with the boy in the pool, Sherman reported what she had observed to the pool manager, David Giocomo.

Sherman, Giocomo, Richard Screen, who was the athletic club manager, and another pool employee then took up positions around the pool in order to watch the defendant more closely. Giocomo and Screen testified that over the next twenty minutes they observed the defendant and the boy swimming and playing together in the pool and engaging in a great deal of physical contact. They testified that they saw the defendant place one hand on the boy's buttocks and the other over the boy's genital area for about five seconds each time and that these touchings appeared to be deliberate. Jennifer Sherman testified that she was able to watch the defendant and the boy only intermittently because of her life guard duties, but that in her estimate the contact lasted for a considerably longer period of time than five seconds. After the second touching was observed, Giocomo asked the defendant to leave the pool and accompany him to his office, where the police were summoned.

The boy testified that he met the defendant at the pool on the day in question and that he and the defendant were swimming and playing together in the water. The boy stated that on two occasions the defendant put him on his knee, turned him around, and touched him on the penis. On one of these occasions the boy, thinking that the touching might be on purpose, put up his knees and the defendant stopped touching him in that area.

The defendant testified that he had been at the pool for several minutes and was swimming laps with a snorkel, a swimming mask, and flippers when he encountered the ten year old boy at the shallow end of the pool. The defendant started talking and joking with the boy, and they then swam together for a few minutes. The defendant admitted that he picked the boy up to waist level several times and threw him in the water and also swam with the boy on his back. Although acknowledging that there was a great deal of physical contact between them, the defendant denied intentionally touching the boy in the genital area or on the buttocks. He stated that any touching of those parts of the boy's body, if it did occur, was accidental and not for a sexual purpose.

At the conclusion of the evidence the trial court instructed the jury that, for purposes of the crime of sexual assault on a child, "sexual contact" means "the intentional touching of the victim's intimate parts by the actor, or the intentional touching of the clothing covering the immediate area of the victim's intimate parts, if that sexual contact was for the purpose of sexual arousal, gratification, or abuse." The term "intimate parts" was defined for the jury as the "external genitalia or the perineum or the anus or the pubes of any person." See § 18-3-401(2), 8 C.R.S. (1978). In the course of instructing the jury that the issues in dispute were whether the defendant intentionally touched the victim's genitals or the clothing covering the immediate area of the genitals and whether the purpose of any such touching was for sexual arousal, gratification, or abuse, the court further elaborated as follows:

It is Defendant's position that he did not touch [the victim's] genitals, or the clothing covering that immediate area, and if there was a touching it was not intentionally done for the purpose of sexual arousal, gratification, or abuse, rather it was accidental.

In order to find the Defendant guilty you must be convinced beyond a reasonable doubt that there was both an intentional touching and such touching was done for the purpose of sexual arousal, gratification or abuse.

The jury returned a guilty verdict to the charge. By post-trial motion the defendant requested the court to set aside the verdict and to enter a judgment of acquittal on the basis that the statutory definition of "sexual contact" was unconstitutionally vague in violation of due process of law. The district court denied the motion and sentenced the defendant to a probationary term of four years. This appeal followed.

II.

We first consider whether section 18-3-401(4), 8 C.R.S. (1978), which defines "sexual contact" in terms of whether that contact "can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse," is unconstitutionally vague in violation of due process of law. According to the defendant's argument, the term "can reasonably be construed" extends to all conduct which might possibly be for sexual purposes and thereby fails to provide adequate notice of the proscribed conduct and reasonably objective standards of enforcement. Before addressing the merits of the defendant's argument, we briefly review certain well-settled principles that guide our resolution of this issue.

A.

Two basic interests underlie the void-for-vagueness doctrine. First, the interest in fair notice requires the law to be sufficiently definite to alert the populace to the nature of the proscribed conduct so that they may control their actions accordingly. Second, the interest in even-handed treatment requires that the law provide specific standards for those charged with its enforcement so that arbitrary and discriminatory application will be avoided.

People ex rel. City of Arvada v. Nissen, 650 P.2d 547, 550 (1982). When legislation is challenged as void for vagueness, the essential inquiry is whether the statute forbids the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application. E.g., Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); People v. Randall, 711 P.2d 689 (Colo.1985); People in Interest of C.M., 630 P.2d 593 (Colo.1981). While due process of law requires that a statute provide adequate notice of the prohibited conduct and practicable guidelines for evenhanded enforcement and application, it does not mandate that a statute be drafted with mathematical exactitude. E.g., People v. Alexander, 663 P.2d 1024, 1027 (Colo.1983); Colorado Auto and Truck Wreckers v. Department of Revenue, 618 P.2d 646, 651 (Colo.1980). So long as a statute permits persons of ordinary intelligence to distinguish between permissible and illegal conduct and provides...