2021 COA 10
Colo. Ct. App.2021Background
- Defendant Cheryl Plemmons, suicidal and intoxicated, was visited by two sheriff deputies for a welfare check; she twice spat in their faces inside her home and spat again at one deputy from the patrol car.
- Plemmons was charged with three counts of second-degree assault: two counts under § 18-3-203(1)(h) (spitting with intent to "infect, injure, or harm") for the in-home incidents, and one count under § 18-3-203(1)(f.5) for the patrol-car incident. A jury convicted on all counts.
- Plemmons moved to dismiss and later appealed, arguing (1) § 18-3-203(1)(h) is unconstitutionally vague because "harm" is undefined; (2) insufficient evidence she intended to "infect, injure, or harm" for the two in-home counts; (3) the trial court erroneously instructed the jury on the meaning of "harm"; and (4) the court erred by denying an evidentiary hearing on her suppression motion.
- The trial court narrowed "harm" to mean psychological or emotional harm tied to danger of injury/infection from bodily fluids and denied suppression based on the attenuation doctrine (defendant's new criminal acts breaking causal chain).
- The court of appeals affirmed: it held "harm" can be construed to include psychological/emotional harm, the evidence supported intent to cause such harm, the jury instruction was proper, and no suppression hearing was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of § 18-3-203(1)(h) (meaning of "harm") | Statute is not unconstitutionally vague; legislative intent supports a limiting construction | "Harm" is undefined and vague; statute is facially and as-applied void for vagueness | Court: "harm" is ambiguous but can be limited by legislative history and construction to include psychological/emotional harm; statute not unconstitutionally vague |
| Sufficiency of evidence of intent to "infect, injure, or harm" (in-home spits) | Evidence of repeated, intentional spitting and hostile conduct supports intent to harm | Plemmons: she spat for other reasons (suicidal distress), not to harm officers | Court: viewing evidence in prosecution's favor, jury could rationally find intent to inflict psychological/emotional harm; convictions upheld |
| Jury instruction defining "harm" as psychological/emotional harm tied to danger of injury/infection | Limiting instruction consistent with legislative intent and avoids vagueness/redundancy with "injure" | Instruction deviated from statutory text, risked blurring second/third-degree assault, and permitted juror speculation | Court: instruction was a correct limiting construction, sufficiently clear, and did not err |
| Suppression hearing requirement after alleged unlawful entry | Attenuation applies when defendant commits a new crime after entry; no evidentiary hearing required where facts undisputed | Defendant: court needed evidentiary hearing and fact-based attenuation analysis (Strieff factors) | Court: no hearing required; defendant's new criminal acts broke causal chain and rendered attenuation doctrine applicable; evidence admissible |
Key Cases Cited
- People v. Gross, 830 P.2d 933 (Colo. 1992) (void-for-vagueness standard: statute must give fair notice and minimal guidelines to avoid arbitrary enforcement)
- People v. Devorss, 277 P.3d 829 (Colo. App. 2011) (statutes must give fair warning; vagueness analysis)
- People v. Hickman, 988 P.2d 628 (Colo. 1999) (vagueness and due process principles)
- Bd. of Educ. v. Wilder, 960 P.2d 695 (Colo. 1998) (distinguishing imprecise normative standards from utterly vague enactments)
- People v. Randall, 711 P.2d 689 (Colo. 1985) (need for definite minimal guidelines to govern law enforcement)
- People v. Sprouse, 983 P.2d 771 (Colo. 1999) (standard for reviewing sufficiency of evidence)
- People v. Doke, 171 P.3d 237 (Colo. 2007) (attenuation doctrine when defendant commits new crime after alleged unlawful entry)
- Nardone v. United States, 308 U.S. 338 (U.S. 1939) (concept of dissipation of the taint for attenuation)
- Kolender v. Lawson, 461 U.S. 352 (U.S. 1983) (importance of minimal guidelines to law enforcement in vagueness doctrine)
- Utah v. Strieff, 136 S. Ct. 2056 (U.S. 2016) (attenuation factors for suppression analysis)