The People of the State of Colorado v. Cheryl Lynette Plemmons
No. 18CA0481
Colorado Court of Appeals
February 4, 2021
2021COA10
Opinion by JUDGE GROVE
La Plata County District Court No. 16CR632; Honorable William L. Herringer, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
February 4, 2021
2021COA10
No. 18CA0481, Peo v Plemmons — Crimes — Assault in the Second Degree; Constitutional Law — Due Process — Vagueness
In this proceeding, a division of the court of appeals considers whether
However, a member of this division urges the Colorado Supreme Court to reconsider its longstanding precedent of requiring that a state statute must be found unconstitutional beyond a reasonable doubt before determining that it violated the Colorado Constitution.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE GROVE
Davidson*, J., concurs
Taubman*, J., specially concurs
Announced February 4, 2021
Philip J. Weiser, Attorney General, Daniel De Cecco, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of
¶ 2 In this appeal, Plemmons contends that two of her convictions should be reversed because
¶ 3 On December 28, 2016, Plemmons planned to commit suicide. She called a friend, explained that she wanted to end her life, and asked the friend to come get her dog. Plemmons‘s friend anonymously called the police. Two sheriff‘s deputies, Scott Blakely and Richard Paige, responded to Plemmons‘s home for a welfare check.
¶ 4 When they arrived, Plemmons was at home with another friend, Harry Waterman. As soon as the deputies entered the house, Plemmons, who was visibly drunk, began berating them and insulting them in a variety of colorful ways. She repeatedly told them to leave. Eventually, Plemmons became calm enough to talk to Deputy Paige, and they began discussing her suicide plans. She talked about slitting her throat and then picked up a small pen knife, pointed it at one of the deputies, and flung it across the room. The handle hit Waterman in the back but did not injure him.
¶ 5 In response, the deputies handcuffed Plemmons and placed her in protective custody for her safety and theirs. Because it was cold outside and Plemmons was not dressed for the weather, they helped Plemmons put on her coat and boots. As they did so,
¶ 6 The deputies placed Plemmons in the back of a patrol car for transport to Mercy Medical Center. As Deputy Paige drove, Plemmons continued to yell obscenities and insults. She also spit on Deputy Paige‘s face and head through the partition. The spitting was so intense that Deputy Paige pulled over and placed a spit hood over Plemmons‘s head.
¶ 7 For the spitting incidents inside the house, Plemmons was charged with two counts of second degree assault under
II. Vagueness Challenge
¶ 8 Plemmons contends that
A. Governing Law and Standard of Review
¶ 9 We review constitutional challenges to statutes de novo, and a party challenging a statute‘s constitutionality “bears the burden of proving its unconstitutionality beyond a reasonable doubt.” Dean v. People, 2016 CO 14, ¶ 8. We will not invalidate a statute unless it is so infirm that it cannot be preserved by adopting a limiting construction consistent with the legislature‘s intent. Whimbush v. People, 869 P.2d 1245, 1248 (Colo. 1994).1
¶ 10 “The essential inquiry in addressing a void for vagueness challenge is whether the statute ‘forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must
¶ 11 Plemmons filed a motion to dismiss that raised a vagueness challenge to
B. Analysis
¶ 12 As relevant here, a person commits second degree assault 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, . . . she causes such person to come into contact with . . . saliva . . . by any means, including by throwing, tossing, or expelling such fluid or material.
¶ 13 The crux of Plemmons‘s argument is that the evidence did not establish that she intended to infect or injure the deputies by spitting on them while in her home, and that, in the absence of a statutory definition, the remaining possibility — that she committed second degree assault because she intended to “harm” them — is unconstitutionally vague. Although we determine that “harm” as it appears in
¶ 14 Consistent with the supreme court‘s directive in Graves, ¶ 25, we first “examine the vagueness of the law in light of [Plemmons‘s] conduct” before turning to her facial challenge.
1. As-Applied Challenge
¶ 15 “Vague laws are unconstitutional because they offend due process” by, in part, “fail[ing] to give fair notice of the conduct prohibited.” People v. Hickman, 988 P.2d 628, 643 (Colo. 1999). Arguing that her conduct was “at the ill-defined margin of second and third degree assault,” Plemmons contends that
¶ 16 “A law is unconstitutional only if it is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no
¶ 17 Irrespective of whether it amounts to a felony or misdemeanor, Colorado law plainly proscribes intentionally spitting in a police officer‘s face with malign intent. See Graves, ¶ 19 (“Because due process objections to vagueness rest on lack of notice, such challenges cannot succeed in a case where reasonable persons would know that their conduct puts them at risk.“). No matter what Plemmons hoped to accomplish by her actions, no reasonable person could conclude that they were permissible under Colorado law. Her as-applied challenge therefore cannot succeed. See Farrell v. Burke, 449 F.3d 470, 494 (2d Cir. 2006) (holding that even where statutory standards are not sufficiently clear to eliminate the risk of arbitrary enforcement, an as-applied challenge will fail if “the conduct at issue falls within the core of the statute‘s prohibition“).
¶ 18 Turning to Plemmons‘s facial challenge, we note at the outset that the state of the law in this area is not entirely clear. As a general matter, “an individual who engages in conduct that is clearly proscribed by the statute cannot challenge the vagueness of the law as applied to the conduct of others.” Graves, ¶ 25; accord Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982). But as Graves observed, the United States Supreme Court “appears to have backed away from the position in Flipside, 455 U.S. at 497, that a statute may be declared facially void for vagueness only if it is ‘impermissibly vague in all its applications.‘” Graves, ¶ 25 n.8 (citing Johnson v. United States, 576 U.S. 591, 602 (2015)). Accordingly, Plemmons urges us to declare
¶ 19 We conclude that we need not decide whether Johnson discarded the “impermissibly-vague-in-all-applications” standard for facial challenges, see Graves, ¶ 25 n.8, because, for the reasons we outline below, there is a reliable way to interpret the scope of the second degree assault statute. See Johnson, 576 U.S. at 597-98
¶ 20 Key to evaluating Plemmons‘s challenge is thus whether the lack of a definition of “harm” in
a. “Harm” is Ambiguous
¶ 21 Spitting on a peace officer for an improper reason is prohibited by two different statutes,
¶ 22 At the threshold, we agree with the trial court‘s conclusion that “harm,” as that term appears in
¶ 23 Ambiguities in a criminal statute can create due process problems because “[t]he interest in preventing selective and arbitrary application of laws requires legislative bodies to establish definite minimal guidelines to govern law enforcement; otherwise, police, prosecutors and juries would be encouraged to exercise their personal perspectives without significant restraint.” People v. Randall, 711 P.2d 689, 692 (Colo. 1985). But “ambiguity alone does not make a statute unconstitutionally vague.” People in Interest of M.C., 2012 COA 64, ¶ 28. Rather, due process is violated only when legislation is so “vague, indefinite, and uncertain that the
¶ 24 We thus turn to whether we are able to determine with reasonable certainty what the General Assembly intended “harm” to mean when it included that term in
b. Scope of “Harm”
¶ 25 When a statute is ambiguous, we use tools of statutory interpretation to discern its meaning. People v. McEntee, 2019 COA 139, ¶ 11. In discerning the General Assembly‘s intent, we may consider, among other things, the object sought to be attained, the circumstances under which the statute was enacted, the legislative history, former statutory provisions, and the consequences of a particular construction.
¶ 26 Before 2015,
¶ 27 An early draft of the bill would have simply reclassified as a felony any spitting on a peace officer with the intent to injure, infect, harm, harass, annoy, threaten, or alarm. S.B. 15-067, 70th Gen. Assemb., 1st Reg. Sess. (Colo. 2015) (as introduced in Senate, Jan. 14, 2015). But legislators accepted amendments on the House floor intended to prevent “over-reaching” and making conduct such as “spitting on the boots” of an emergency responder a felony. 2d Reading on S.B. 15-067 before the H., 70th Gen. Assemb., 1st Reg. Sess. (May 4, 2015).
¶ 28 Ultimately, the legislation enacted in 2015 bifurcated the original statute. Spitting on an officer with the intent to “harass,
¶ 29 Senator John Cooke, one of the bill‘s co-sponsors, explained that the change was intended in part to account for the psychological trauma arising from unwanted contact with bodily fluids. As he put it, “the reason that I felt that [accounting for emotional or psychological harm] was important is because, a lot of times that has more damage than the physical . . . damage, because of the . . . psychological damage of . . . later on, you could be contracting a communicable disease.” Hearings on S.B. 15-067 before the S. Judiciary Comm., 70th Gen. Assemb., 1st Reg. Sess. (Jan. 28, 2015). Witnesses testifying in support of the bill likewise described both the psychological trauma that they suffered and the extensive prophylactic treatment that was required following exposure to bodily fluids.
¶ 30 Based in part on Senator Cooke‘s description of the bill‘s purpose, the trial court concluded that “the legislature included the
¶ 31 Indeed, instructing the jury that “harm” includes only psychological or emotional harm was both consistent with the General Assembly‘s intent and an appropriate way of ensuring the second degree assault statute‘s constitutionality. See Whimbush, 869 P.2d at 1248. Moreover, narrowing “harm” as the trial court did ensured that there would be no redundancy with the term “injure.” See People v. Rediger, 2018 CO 32, ¶ 22 (“[T]he use of different terms signals an intent on the part of the General Assembly to afford those terms different meanings.“) (citation omitted). And, as we discuss in more detail below, it also appropriately distinguished felony second degree assault under
III. Sufficiency of the Evidence
¶ 33 Plemmons contends that we should reverse her convictions under
A. Standard of Review
¶ 34 When assessing the sufficiency of the evidence in support of a guilty verdict, a reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of the accused‘s guilt beyond a reasonable doubt.
People v. Sprouse, 983 P.2d 771, 777 (Colo. 1999). Reviewing a sufficiency challenge de novo, McCoy v. People, 2019 CO 44, ¶ 27, we give the prosecution the benefit of every reasonable evidentiary inference that might fairly be drawn while recognizing that the jury determines the evidence‘s weight and resolves evidentiary conflicts, inconsistencies, and disputes. Sprouse, 983 P.2d at 778. More than a modicum of relevant evidence is necessary to rationally support a conviction beyond a reasonable doubt; thus, “[v]erdicts in criminal cases may not be based on guessing, speculation, or conjecture.” Id.B. Analysis
¶ 35 Plemmons admitted that she intentionally spat at both deputies inside her home, but she denied that she intended to harm them. Instead, she claimed, her act was intended to send several messages, including “please don‘t hurt me, please don‘t take me to jail, how can this be happening to someone who‘s suicidal. Again, there were just no words to express it.”
¶ 36 To be sure, the jurors were free to take Plemmons at her word and, applying the court‘s instruction on the meaning of “harm,” could have concluded that she did not intend to inflict emotional or
¶ 37 Given the extensive evidence about Plemmons‘s demeanor and the circumstances leading to the charged acts, we conclude there was substantial and sufficient evidence to establish beyond a
IV. Jury Instruction Definition of “Harm”
¶ 38 Plemmons contends that all of her convictions should be reversed because the trial court erroneously instructed the jury on the definition of “harm.” We are not persuaded.
A. Governing Law and Standard of Review
¶ 39 We apply a two-tier standard of review to jury instructions. People v. Stellabotte, 2016 COA 106, ¶ 18, aff‘d on other grounds, 2018 CO 66. First, “[w]e review jury instructions de novo to determine whether the instructions as a whole accurately informed the jury of the governing law.” People v. Jones, 2018 COA 112, ¶ 24. Second, we review a trial court‘s formulation of additional instructions (i.e., those that supplement the standard instructions) for an abuse of discretion. People v. Riley, 2015 COA 152, ¶ 22.
¶ 40 The trial court abuses its discretion only “when its decision is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law.” Id. (quoting People v. Orozco, 210 P.3d 472, 475 (Colo. App. 2009)). So long as
¶ 41 Plemmons contemporaneously objected to the instruction in question, but she did not contemporaneously raise several of the arguments that she asserts on appeal. Because we determine that the instruction was not erroneous in any respect, however, we need not specify which standard of reversal applies to each of her arguments.
B. Analysis
¶ 42 In its order denying Plemmons‘s claim of constitutional vagueness, the trial court stated that it was considering a jury instruction on the definition of “harm” that conformed to the limiting construction of that term that it had just adopted. The court proposed language for the instruction and invited briefing on the issue from the parties. After considering their input, the court instructed the jury as follows:
The term “harm” as it is issued in Instruction No. 10 & 11 means psychological or emotional harm. It can include the following
Fear, - Anxiety,
- Or any other type of significant distress
that is based upon the danger of injury or infection from contact with bodily fluids. The defendant need not have acted with the intent to cause harm that is permanent or long-lasting in nature, but the defendant‘s intent must have been to cause psychological or emotional harm that is not fleeting or minimal in nature.
Instructions 10 and 11 were the elemental instructions for second degree assault under
¶ 43 Plemmons contends that the court‘s definition of “harm” was flawed in five different ways: (1) it deviated from the text of the statute, which says nothing about emotional or psychological harm; (2) it blurred the line between second and third degree assault; (3) it allowed the jury to speculate because, by using the phrase “can include,” the instruction suggested that “fear, anxiety, or any other type of significant distress” was not an exhaustive list; (4) it was drafted in a way that left unclear whether the phrase “based upon the danger of injury or infection from contact with bodily fluids” modified each of the examples of emotional or psychological harm,
¶ 44 First, we have already concluded that
¶ 45 Second, we are not persuaded that the court‘s definition of “harm” blurred the line between second degree and third degree assault. The instruction provided that the emotional or psychological harm for second degree assault must necessarily be based “upon the danger of injury or infection from contact with bodily fluids,” thereby making clear that the only way for an actor to cause the necessary harm would be to direct her spit in a way that would create that risk for the officer. Spitting in an officer‘s face would obviously do so, but spitting elsewhere, such as on an officer‘s boots or back, might not.
¶ 46 Third, stating that psychological or emotional harm “can include . . . [f]ear, . . . [a]nxiety, . . . [o]r any other type of significant
¶ 47 Fourth, 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. The trial court achieved this by numbering the three examples and offsetting them from the remainder of the instruction.
¶ 48 Fifth, the jury instruction can be administered clearly. Contrary to Plemmons‘s assertion, 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
V. Suppression Hearing
¶ 49 Plemmons contends that she was entitled to an evidentiary hearing on her motion to suppress, and that we should remand the case for a hearing and conditionally order a new trial pending the hearing‘s outcome. Because there were no “issue[s] of fact necessary to the decision of the motion,”
A. Relevant Facts
¶ 50 Before trial, Plemmons filed a motion to suppress “all statements, observations, and evidence that police acquired” when they entered her home without a warrant. The trial court denied the motion without an evidentiary hearing because, it found, whether or not deputies entered the house lawfully, Plemmons‘s commission of a new criminal act once they were inside was sufficiently attenuated from any unlawful entry to render the exclusionary rule inapplicable.
¶ 51 A trial court‘s ruling on a suppression motion presents a mixed question of fact and law. People v. Martin, 222 P.3d 331, 334 (Colo. 2010). We defer to the trial court‘s findings of fact if they are supported by competent evidence in the record. People v. Stock, 2017 CO 80, ¶ 13. However, we review the trial court‘s conclusions of law de novo. Id.
¶ 52 “When there is a Fourth Amendment violation, courts can apply the exclusionary rule to suppress evidence that was discovered as a result of the violation.” People v. Tomaske, 2019 CO 35, ¶ 10. The rule is “intended to deter improper police conduct,” and thus “should not be applied in cases where the ‘deterrence purpose is not served, or where the benefits associated with the rule are minimal in comparison to the costs associated with the exclusion of probative evidence.’” People v. Altman, 960 P.2d 1164, 1168 (Colo. 1998) (citation omitted).
¶ 53 The attenuation doctrine is one exception to the exclusionary rule. It “allows the admission of evidence obtained as the fruit of an illegal warrantless search or seizure when the connection between the lawless conduct of the police and the discovery of the challenged
¶ 54 The attenuation doctrine frequently applies when an individual responds to an officer‘s Fourth Amendment violation with a criminal act of her own. “‘[A]n independent and willful criminal act against a law enforcement officer’ . . . break[s] the causal chain between the police misconduct and the evidence of the new crime” for two reasons. Tomaske, ¶ 13 (quoting People v. Doke, 171 P.3d 237, 240 (Colo. 2007)). First, “admission of the contested evidence does not incentivize illegal searches by the police,” and second, “a contrary approach would ‘effectively give the victim of police
¶ 55 Plemmons preserved this issue for appellate review by filing her motion to suppress.
C. Analysis
¶ 56 The question before us is whether the trial court was required to hold an evidentiary hearing on Plemmons‘s motion to suppress, or whether it could simply assume that the deputies’ entry was illegal and then, based on the undisputed facts, apply the attenuation doctrine as a matter of law.
¶ 57 Our supreme court has consistently applied the attenuation doctrine when a person who is confronted with an illegal search responds by committing a new crime. Tomaske, ¶ 2; Doke, 171 P.3d at 240. In Doke, sheriff‘s deputies went to Doke‘s residence to serve him with process in a civil case. 171 P.3d at 238. No one answered the doorbell, but after walking to the back of the house and peering through a window, the deputies observed a man, later identified as Doke, sitting in a recliner with his eyes closed. Id. After they pounded on the door with no response, the deputies opened the door a few inches and identified themselves. Id. Doke
¶ 58 This incident resulted in several criminal charges against Doke. Asserting that statements that he made to law enforcement, evidence that the deputies obtained from him, and the evidence seized and observed pursuant to the search warrant were all obtained illegally, he filed a motion to suppress. Id. The trial court granted the motion, but the supreme court reversed. As relevant here, the court held that it “need not reach the issue of whether the deputies violated Doke‘s Fourth Amendment rights because the evidence sought to be suppressed is admissible . . . irrespective of whether the deputies committed an unconstitutional trespass.” Id. at 239.
¶ 59 Eleven years later, the Colorado Supreme Court drew the same bright line in Tomaske. After police entered Tomaske‘s property without a warrant and chased him into his house in violation of the Fourth Amendment, Tomaske “responded by resisting and allegedly
¶ 60 Plemmons argues that Doke and Tomaske are distinguishable because the trial courts in both cases held hearings that created an evidentiary foundation for the attenuation analysis. Without a developed record, she maintains, it is not possible to apply the United States Supreme Court‘s three-factor test for attenuation, which requires assessment of (1) the temporal proximity between any unlawful stop and the search; (2) the presence of any intervening circumstances; and (3) the purpose and flagrancy of the
¶ 61 By applying the attenuation exception to Plemmons‘s new criminal acts, the trial court hewed to the bright line that Doke and Tomaske drew. No fact-intensive inquiry was necessary because it was not contested that the charged acts occurred after the deputies
VI. Conclusion
¶ 62 The judgment is affirmed.
JUDGE DAVIDSON concurs.
JUDGE TAUBMAN specially concurs.
¶ 63 I write separately because I agree with the contention of defendant, Cheryl L. Plemmons, that we should not review her constitutional vagueness challenge to the second degree assault statute by determining whether it is unconstitutional beyond a reasonable doubt both on its face and as applied. However, because we are bound by decisions of the Colorado Supreme Court holding that that standard applies, I concur with the majority. As the majority notes, Plemmons challenges two of her three convictions for spitting at a police officer, in violation of
¶ 64 I write separately to urge the supreme court to reconsider its longstanding precedent on this subject. As I explain below, I believe that the beyond a reasonable doubt standard is (1) inconsistent with the Framers’ intent regarding the separation of powers; (2) not followed by the United States Supreme Court; and (3) illogical. Although the beyond a reasonable doubt standard is often cited by Colorado‘s appellate courts as black letter law, it is rarely discussed or applied, and, in my view, not applying that standard here should
¶ 65 I will first address the history of the beyond a reasonable doubt standard in Colorado and the United States Supreme Court. Then, I will discuss two Colorado cases that have considered whether Colorado courts should continue to apply this standard. Next, I will explain my concerns with the standard. Finally, I will analyze why not using the beyond a reasonable doubt standard in this case should lead to the conclusions that the above-cited statute is unconstitutionally vague and that Plemmons‘s two convictions under that statute should be vacated.
¶ 66 The majority applies the beyond a reasonable doubt standard to Plemmons‘s challenge to the constitutionality of the second degree assault statute both on its face and as applied. I will likewise assume this standard applies to Plemmons‘s constitutional challenges both facially and as applied.
I. History of Beyond a Reasonable Doubt Standard
¶ 67 In Alexander v. People, 7 Colo. 155, 2 P. 894 (1884), the Colorado Supreme Court held that a state statute had to be found unconstitutional beyond a reasonable doubt in assessing whether it
¶ 68 The supreme court and the court of appeals continue to apply that standard today. See, e.g., Rocky Mountain Gun Owners v. Polis, 2020 CO 66, ¶ 30, 467 P.3d 314, 323; Welch v. Colo. State Plumbing Bd., 2020 COA 130 ¶ 15, 474 P.3d 236, 240.
¶ 69 Although the Supreme Court‘s landmark decision in Marbury v. Madison, 5 U.S. 137 (1803), established a right to judicial review of the constitutionality of a statute, it did not require a finding of unconstitutionality be established beyond a reasonable doubt. Twenty-four years later, however, the Supreme Court established the beyond a reasonable doubt standard in Ogden v. Saunders, 25 U.S. 213, 270 (1827). Professor James B. Thayer of Harvard Law School encouraged this interpretation in his well-known law review article, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893). See also Adkins v. Child.‘s Hosp. of D.C., 261 U.S. 525, 544 (1923) (statute must be proved unconstitutional “beyond rational doubt”).
¶ 70 Four years after Adkins was decided, the United States Supreme Court abandoned the beyond a reasonable doubt standard. In Blodgett v. Holden, 275 U.S. 142 (1927), the Supreme Court simply held a statute invalid because it was arbitrary and violated the plaintiff‘s right to due process. In paying homage to the notion of judicial deference to legislative enactments, the court noted that resolving a constitutional challenge to a statute is the gravest and most delicate duty that a court is called on to perform.
¶ 71 Since 1927, the United States Supreme Court has addressed the constitutionality of statutes without applying a beyond a reasonable doubt test. See, e.g., Dep‘t of Homeland Sec. v. Thuraissigiam, 591 U.S. ___, ___, 140 S. Ct. 1959, 1963 (2020); see also Laura J. Gibson, Beyond a Reasonable Doubt: Colorado‘s
¶ 72 Thus, for the past ninety-four years, the United States Supreme Court and the Colorado Supreme Court have applied different standards to assess whether a statute is constitutional. In recent years, two Colorado appellate cases have addressed this discrepancy.
¶ 73 First, in United Air Lines, Inc. v. City & County of Denver, 973 P.2d 647, 655 (Colo. App. 1998) (Briggs, J., specially concurring), aff‘d on other grounds, 992 P.2d 41 (Colo. 2000), my former colleague Steve Briggs presented a thorough, erudite analysis expressing his concerns about using the beyond a reasonable doubt standard for determining the constitutionality of a statute. Among other things, he noted: (1) this standard establishes an extreme, unwarranted degree of deference to the legislature; (2) it creates different burdens of persuasion in state and federal courts to those challenging the constitutionality of a statute; (3) the standard has not been expressly applied in addressing the constitutionality of a statute, and divided court decisions suggest that courts have not actually applied the beyond a reasonable doubt standard; (4) the
¶ 74 Judge Briggs acknowledged that the parties had not raised the issue in United‘s challenge to the constitutionality of a Denver use tax ordinance, and the beyond a reasonable doubt standard did not impact the majority‘s result. Similarly, in affirming the division‘s decision, the supreme court did not address the beyond a reasonable doubt standard of assessing constitutionality.
¶ 75 More recently, in TABOR Foundation v. Regional Transportation District, 2016 COA 102, 417 P.3d 850, aff‘d, 2018 CO 29, 416 P.3d 101, a division of this court rejected the TABOR Foundation‘s challenge to the constitutionality of a state statute, concluding that it was obligated to follow supreme court precedent employing the beyond a reasonable doubt standard. Further analyzing supreme court case law, the division concluded that “to hold a statute unconstitutional beyond a reasonable doubt, the constitutional flaw
¶ 76 Although the Colorado Supreme Court granted the Foundation‘s petition for a writ of certiorari on this issue, it declined to address it, concluding that the challenged statute was constitutional with or without application of the beyond a reasonable doubt standard. See TABOR Found. v. Reg’l Transp. Dist., 2018 CO 29, ¶¶ 11-12, 416 P.3d 101, 103-04.
II. Concerns Regarding the Unconstitutionality of Beyond a Reasonable Doubt Standard
¶ 77 As noted, I have three concerns about the continued use of the beyond a reasonable doubt standard. First, in my view, it misapprehends the Framers’ understanding of the separation of powers. Before the Constitution was ratified, Alexander Hamilton wrote in Federalist 78 that “[t]he interpretation of the laws is the proper and peculiar province of the courts.” In recognizing the power of judicial review, Federalist 78 presaged the holding in Marbury v. Madison. Significantly, neither Federalist 78 nor Marbury set forth a standard of finding a statute unconstitutional beyond a reasonable doubt. Consequently, the earlier decisions of
¶ 78 Second, as noted above, the Supreme Court has not followed the beyond a reasonable doubt test since it decided Blodgett in 1927. Therefore, state court litigants have a higher burden of proof when challenging the constitutionality of a state statute than do federal court litigants raising the same constitutional challenge. There is no principled or practical reason to continue the use of these disparate standards.
¶ 79 Third, at least theoretically, the beyond a reasonable doubt standard permits courts to conclude that a statute is constitutional when they would otherwise reach the opposite conclusion. See Island County v. State, 955 P.2d 377, 391 (Wash. 1998) (Sanders, J., concurring) (“For, quite literally, the maxim requires us to hold either a statute is proved unconstitutional beyond a reasonable doubt, or we must . . . hold [that the statute] is constitutional even if it really isn‘t.”). Perhaps, for that reason, Colorado‘s appellate courts often recite the beyond a reasonable doubt standard without ever applying it.
¶ 80 While the above might lead one to conclude that the beyond a reasonable doubt constitutionality test is mere surplusage and at most harmless, I believe that not applying that test here should lead to the conclusion that Plemmons‘s two second degree assault convictions should be vacated. Let me explain why.
¶ 81 As the majority opinion observes,
¶ 82 After reiterating that we must address Plemmons‘s vagueness challenge under the beyond a reasonable doubt standard, the majority recites the familiar black letter rule that the essential inquiry in a void for vagueness challenge is whether “the statute ‘forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess as to its
¶ 83 The majority explains that a statute must be reasonably definite to give fair warning of proscribed conduct so that people may guide their actions accordingly. The void for vagueness doctrine also ensures that a statute is sufficiently specific so that police officers “can avoid arbitrary and discriminatory application.” Supra ¶ 10 (quoting People in Interest of L.C., 2017 COA 82, ¶ 8, ___ P.3d ___).
¶ 84 This latter purpose might not meet constitutional muster here if the supreme court were to abandon the beyond a reasonable doubt standard.1 This is so for two reasons: (1) the meaning of “harm” in the phrase “infect, injure, or harm” is unclear, as evidenced by the interpretation given to the term by the trial court and the majority‘s resort to legislative history to define what it concludes is an ambiguous term; and (2) no clear distinction exists
¶ 85 Because each term in a statute is to be given meaning, Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 25, 325 P.3d 571, 579, and the definition of “harm” overlaps with the definition of “injure,” the trial court determined that “harm” must mean psychological or emotional harm. Of course, this post hoc definition of “harm” did not avoid arbitrary or discriminatory enforcement, because it arose after Plemmons was charged with second degree assault. Indeed, the prosecutor argued in the trial court that “harm” referred to bodily injury, a definition rejected by the trial court. Consequently, Plemmons was charged with committing second degree assault based on a definition of “harm” that was apparently not envisioned by the prosecution.
¶ 86 The prejudice to Plemmons from this post hoc definition of “harm” is clear based on what actually transpired during Plemmons‘s trial. Both police officers testified that Plemmons spit on them, but neither testified that he had experienced any
¶ 87 Further, the risk of discriminatory and arbitrary enforcement of the second degree assault statute is clear from the majority‘s acknowledgment that the term “harm” is ambiguous and its resort to legislative history to define the term. In a thorough, well-reasoned exploration of the legislative history, the majority agrees with the trial court that the term “harm” refers to psychological or emotional trauma. That analysis makes sense, but it doesn‘t adequately address the question of whether this definition of “harm” precludes discriminatory or arbitrary enforcement when the plain language of the statute doesn‘t make this distinction.
¶ 88 I recognize that any “ambiguity alone does not make a statute unconstitutionally vague.” People in Interest of M.C., 2012 COA 64, ¶ 28, 292 P.3d 1030, 1037. However, if we consider whether a statute is unconstitutional beyond a reasonable doubt, analysis of the legislative history may well lead to the conclusion that the
¶ 89 Even under the definition of “harm” employed by the trial court and the majority, it is not clear that the two police officers on whom Plemmons spit actually suffered any psychological or emotional trauma. As noted, the police officers on whom Plemmons spit did not testify that they had suffered any such trauma.
¶ 90 In any event, under the definition of “harm” used by the trial court and the majority, there remains an unreasonable risk of a defendant being charged with second degree assault, rather than third degree assault. Given Plemmons‘s spitting at the police officers in her home, it seems clear that she could easily have been
¶ 91 It is one thing to say, as some legislators apparently did, that spitting on the boots of a police officer is not as blameworthy as spitting in a police officer‘s face. While that distinction make sense, it is not at all the distinction made in the second and third degree assault statutes.
¶ 92 Accordingly, I urge the Colorado Supreme Court to reconsider its longstanding precedent applying the beyond a reasonable doubt unconstitutionality test and then determine whether the second degree assault statute‘s definition of “harm” makes it unconstitutionally vague.