Plemmons v. People
| Decision Date | 26 September 2022 |
| Docket Number | 21SC183 |
| Parties | Cheryl Lynette Plemmons, Petitioner v. The People of the State of Colorado. Respondent |
| Court | Colorado Supreme Court |
ADVANCE SHEET HEADNOTE
In this opinion involving a defendant spitting on law enforcement officers, the supreme court interprets the General Assembly's use of the term "harm" in section 18-3-203(1), C.R.S. (2022). The majority holds that "harm" as used in section 18-1-203(1) (f.5) (I) and (h) encompasses more than just physical harm. The statute criminalizes as second degree assault a defendant's conduct exposing an officer to bodily fluids with the intent to cause prolonged psychological or emotional harm that stems from the possibility that the officer has been infected by or could become a vector for disease.
Because the jury instruction related to the charges under section 18-3-203(1)(h) didn't confine the jurors' deliberation to this definition of "harm," the jury may have relied on considerations outside the scope of the proscribed conduct. Therefore, the instructional error was not harmless beyond a reasonable doubt and the defendant is entitled to a new trial on those two charges.
The court affirms in part and reverses in part the division's judgment. The defendant's conviction under section 18-3-203(1)(f.5) is affirmed, her two convictions under section 18-3-203(1)(h) are vacated, and the case is remanded for a new trial on those charges.
Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 18CA481
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Jacob B. McMahon, Deputy Public Defender
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Patrick A. Withers, Assistant Attorney General JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined. JUSTICE GABRIEL, joined by JUSTICE MÁRQUEZ, concurred in the judgment.
Judgment Affirmed in Part and Reversed in Part.
¶1 Defendant, Cheryl Plemmons, intentionally spat on two sheriff deputies while they were attempting to determine if she was suicidal. The deputies arrested her for spitting on them, and the prosecution charged her with three counts of second degree assault: one under section 18-3-203(1)(f.5), C.R.S. (2022), and two under section 18-3-203(1)(h). A jury found her guilty of each count.
¶2 On appeal, Plemmons argued that the trial court incorrectly instructed the jury on an element of the offense: the scope of the term "harm" as it relates to her intent in spitting on the officers. A division of the court of appeals affirmed the judgment of conviction. People v. Plemmons, 2021 COA 10, ¶ 2, 490 P.3d 1112, 1115.
¶3 Like the courts below, we hold that "harm" as used in subsections 18-3-203(1)(f.5)(I) and (h) encompasses more than just physical harm. Psychological harm can suffice. We agree with the division that the legislature, in using the term "harm," intended these subsections to criminalize as second degree assault prolonged psychological or emotional harm that stems from the possibility that an officer has been infected by or could become a vector for disease. Plemmons, ¶ 45, 490 P.3d at 1122. But we conclude that Plemmons is entitled to a new trial because the trial court's jury instructions didn't accurately convey the meaning of "harm" to the jury. Thus, we affirm in part and reverse in part the division's judgment.
¶4 Plemmons called a friend one evening to say she planned to commit suicide. Following an anonymous call from Plemmons's friend to the police, sheriff deputies Scott Blakely and Richard Paige conducted a welfare check at Plemmons's home.
¶5 Blakely and Paige found Plemmons at her home with another friend. Upon the deputies' entry into her home, Plemmons, who was visibly drunk, berated them and told them to leave. After calming down enough to talk to Paige, Plemmons said she had considered committing suicide by carbon monoxide poisoning and motioned toward her oven. She then added that she might slit her throat. At that point, she picked up a small knife. As both deputies reached for their tasers, Plemmons flung the knife across the room, away from the deputies but toward her friend.
¶6 The deputies handcuffed Plemmons and placed her in protective custody, which, Blakely explained at trial, meant they would transport her to a hospital for treatment. Because it was cold outside, the deputies began to help Plemmons put on her coat and boots. Plemmons then spat in both deputies' faces, causing the deputies to shift from taking Plemmons into protective custody to placing her under arrest.
¶7 The deputies put Plemmons in the back of Paige's patrol car. Despite the arrest, the deputies decided to first take Plemmons to a hospital for medical evaluation. On the way to the hospital, Plemmons continued to insult Paige, and she spat on him through the partition, hitting the side of his face and back of his head. As a result, the deputies placed a spit hood over Plemmons's head for the rest of the trip. After medical staff cleared Plemmons, Paige transported her to jail.
¶8 The prosecution charged Plemmons with two counts of second degree assault under section 18-3-203(1)(h) for the spitting incidents inside her home, and one count of second degree assault under section 18-3-203(1)(f.5) for spitting on Paige inside the patrol car.
¶9 As relevant here, section 18-3-203(1)(h) provides:
A person commits the crime of assault in the second degree if: [w]ith intent to infect, injure, or harm another person whom the actor knows or reasonably should know to be engaged in the performance of his or her duties as a peace officer, . . . he or she causes such person to come into contact with . . . saliva . . . by any means . . . .
(Emphasis added.) And section 18-3-203(1)(f.5)(I) defines second degree assault as:
While lawfully confined in a detention facility[1] within this state, a person with intent to infect, injure, harm, harass, annoy, threaten, or alarm a person in a detention facility whom the actor knows or reasonably should know to be an employee of a detention facility, causes such employee to come into contact with . . . saliva . . . by any means . . . .[2]
(Emphasis added.)
¶10 Plemmons sought dismissal of the subsection (h) charges, arguing that the provision is unconstitutionally vague and overbroad. While the trial court denied the motion, it found the term "harm," as used in the statute, ambiguous. Therefore, the trial court turned to interpretive aids and concluded that the term means something different than "infect" or "injure" and that it is limited to psychological and emotional trauma stemming from unwanted contact with bodily fluids or dangerous substances.
¶11 Over Plemmons's objection, the trial court instructed the jury, in part, as follows:
¶12 The jury found Plemmons guilty as charged.
¶13 On appeal, Plemmons argued that the trial court erroneously instructed the jury on the definition of "harm" as it applied to all three convictions because the instruction: (1) deviated from the statutory text by adding psychological and emotional harm; (2) blurred the line between second degree assault under subsection (h) and third degree assault under section 18-3-204(1)(b), C.R.S. (2022)[3]; (3) invited the jury to speculate about the potential scope of the term "harm"; (4)left unclear whether the phrase "based upon the danger of injury or infection from contact with bodily fluids" modified all the listed examples of harm; and (5)left uncertain how serious an intended harm needed to be to fall within the statute. Plemmons, ¶ 43, 490 P.3d at 1121-22.
¶14 Plemmons also claimed that the evidence was insufficient to establish that she spat on the deputies with the intent to "infect, injure, or harm" them, as section 18-3-203(1)(h) requires. Plemmons, ¶ 33, 490 P.3d at 1120.
¶15 The division affirmed. Id. at ¶ 62, 490 P.3d at 1124. In rejecting Plemmons's jury instruction argument, it concluded: (1) the trial court's "construction of 'harm' was consistent with the General Assembly's intent"; (2) the court's definition of "harm" requires the psychological harm for second degree assault to be based "upon the danger of injury or infection from contact with bodily fluids"; (3) the jurors were not invited to speculate about applications beyond the bounds of the court's limiting instruction; (4) the structure of the instruction's second sentence makes clear that the phrase "based upon the danger of injury or infection from contact with bodily fluids" applies to all three examples included in that sentence; and (5) the jury instruction "can be administered clearly" because "clarifying that the harm associated with second degree assault need not be permanent, but also must be more than 'fleeting or minimal in nature,' helps differentiate 'harm' from the lesser injuries such as 'alarm' or 'annoy' that appear in the third degree assault statute." Id. at ¶¶ 44-48, 490 P.3d at 1122.
¶16 In rejecting Plemmons's sufficiency argument, the division examined evidence reflecting her mental state. Id. at ¶ 36, 490 P.3d at 1120. Plemmons acknowledged that she yelled at the deputies, directed demeaning language at them,...
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