v. Burgandine
No. 18CA1072, People v. Burgandine — Crimes — Stalking
The defendant challenges his stalking conviction under
Applying the plain language of “contacts,” a division of the court of appeals concludes that the term does include communications, such as phone calls and text messages. And it declines the defendant‘s request to interpret the term “contacts” narrowly to avoid redundancy.
¶ 2 Burgandine challenges only his stalking conviction, contending the term “contacts” in
I. Background
¶ 3 Burgandine and the victim share a son. After their relationship ended, their son lived with the victim. Although they
¶ 4 But one afternoon in October 2015, after the victim refused his request to see their son, Burgandine embarked on a seven-hour tirade directed at the victim, conducted through phone calls and text messages. Threaded through his texts were misogynistic insults labeling the victim a “whore,” “skank,” and “cunt.” Many of the phone calls and texts threatened violence against the victim and, after she told Burgandine that the police would be called, he threatened violence against the police as well.
¶ 5 The prosecution charged Burgandine with harassment, credible threat stalking, and emotional distress stalking. The jury convicted him of the first two charges but acquitted him of the third. The court then sentenced him to three years of supervised probation with ninety days to be served in jail.
II. Discussion
A. Standard of Review and Statutory Construction
¶ 6 Where, as here, a sufficiency challenge requires us to interpret a statute de novo, we must give effect to the legislature‘s intent.
¶ 7 When possible, we give consistent, harmonious, and sensible effect to each part of the statute. People v. Gallegos, 2013 CO 45, ¶ 7; People v. Banks, 9 P.3d 1125, 1127 (Colo. 2000). And while we avoid constructions that render any words or phrases superfluous, People v. Null, 233 P.3d 670, 679 (Colo. 2010), we also avoid interpretations that “defeat legislative intent or lead to absurd results,” Mosley v. People, 2017 CO 20, ¶ 16.
B. The Credible Threat Stalking Statute
¶ 8 A person commits credible threat stalking when he, either directly or indirectly through a third party, knowingly
(a) [m]akes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person . . . ; or
(b) [m]akes a credible threat to another person and, in connection with the threat, repeatedly
makes any form of communication with that person, . . . regardless of whether a conversation ensues.
¶ 9 At trial, the prosecutor argued that Burgandine‘s phone calls and text messages to the victim were “contacts” under subsection (1)(a). The prosecutor did not argue that Burgandine followed, approached, or placed the victim under surveillance. Nor did the People charge Burgandine under subsection (1)(b).
C. Interpretation of “Contacts”
¶ 10 Because the statute doesn‘t define “contacts” and Burgandine doesn‘t dispute that it‘s a common term, we begin with the dictionary definition. See Cowen v. People, 2018 CO 96, ¶ 14 (in the absence of a statutory definition “we may consider a definition in a recognized dictionary“); see also People v. Devorss, 277 P.3d 829, 837 (Colo. App. 2011) (“‘[C]ontact’ is a common term.“).
¶ 11 “Contact” is defined as “to make connection with” and “get in communication with,” including instances of “establishing communication with someone,” “touching or meeting,” and “meeting, connecting, or communicating.” Webster‘s Third New International Dictionary 490 (2002).
¶ 14 But Burgandine asks us to look beyond the common meaning because applying it renders “any form of communication” in subsection (1)(b) redundant. To avoid surplusage, Burgandine says we must read the term in context by applying the noscitur a sociis canon and considering the legislative history which, according to him, support a “more narrow” interpretation of “contacts” that requires “some sort of physical proximity” (and necessarily excludes phone and text message communications).2
1. Noscitur a Sociis
¶ 16 Under the noscitur a sociis canon, “a word is known by the company it keeps.” Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995); accord St. Vrain Valley Sch. Dist. RE-1J v. A.R.L. by & through Loveland, 2014 CO 33, ¶ 22. Relying on this canon, Burgandine argues that because all the other types of stalking conduct listed in subsection (1)(a) — “follows,” “approaches,” and “places under surveillance” — involve a victim‘s physical location, and two of them (“follows” and “approaches“) require “physical proximity,” to avoid redundancy, “contacts” “must be similarly construed as requiring some sort of physical proximity” to the
¶ 17 First, we don‘t agree with Burgandine that the other stalking conduct listed in subsection (1)(a) “denote being within the immediate [or physical] proximity” of a victim. Of the three companion stalking actions, only one — “approaches” — implies any proximity, but even that term doesn‘t require “physical” or “immediate” proximity. And as to the other two stalking actions, technology being what it is, one may surveil or follow a person without ever being physically near them, let alone in their “immediate proximity.” See People v. Brown, 2014 COA 130M, ¶ 49 (“A defendant need not be physically present to conduct surveillance . . . .“); People v. Sullivan, 53 P.3d 1181, 1184 (Colo. App. 2002) (construing “surveillance” in subsection (1)(a) to include electronic surveillance); cf. State v. Lee, 917 P.2d 159, 164 (Wash. Ct. App. 1996) (interpreting “follows” as not being limited to “trail[ing]” or “tail[ing]” the victim but to include movement deliberately correlated to the movements of another), aff‘d, 957 P.2d 741 (Wash. 1998).
¶ 20 Fourth, Burgandine‘s proposed interpretation “muddies up the statute.” Barton, 904 F.3d at 1301. Specifically, it injects ambiguity and presents due process concerns. Due process
¶ 21 Finally, if the legislature had intended to narrow the plain meaning of “contacts” to “require some sort of physical proximity,” it could have included that requirement in subsection (1)(a). See Sullivan, 53 P.3d at 1184 (rejecting argument that “surveillance” in subsection (1)(a) required “physical presence” because, had the legislature intended, it “would have included such a requirement“). Indeed, the legislature has included “physical contact” when it intends to do so. See, e.g.,
¶ 22 For these reasons, we are not convinced that noscitur a sociis requires us to disregard the plain and ordinary meaning of “contacts” or narrow the common meaning to include an ill-defined and ambiguous physical proximity requirement.
2. Legislative History
¶ 23 Finally, Burgandine argues that legislative history supports his contention that the General Assembly added “contacts” to the stalking statute to capture conduct other than “communications such as calls and texts,” given that such conduct was already prohibited under a different subsection of the stalking statute then in effect.
¶ 24 The legislative history provides some context for the addition of “contacts” to the stalking statute. See, e.g., People v. Jones, 2015 CO 20, ¶ 10 (“[T]he historical development of . . . a statutory scheme can often shed light on the purposes behind its various component parts . . . .“). Before this addition, the stalking statute addressed only situations where a person made a credible threat
¶ 25 In proposing the amendment that added “approaches, contacts, or places under surveillance,” Ms. Jeanne Smith from the Colorado District Attorneys Council (a contributor to the proposed amendment) explained that the “repeatedly follows” language then in effect did not adequately address instances where “a stalker was watching a victim” or “just leaving notes on the [victim‘s] car.” Hearings on H.B. 99-1168 before the H. Judiciary Comm., 62nd Gen. Assemb., 1st Sess. (Feb. 2, 1999) (statement of Jeanne Smith, Colo. Dist. Attorneys Council); see Ch. 215, sec. 1,
¶ 26 Given that Ms. Smith referenced a type of communication (leaving notes) to explain one reason for amending the stalking statute to add “approaches, contacts, or places under surveillance,” we don‘t agree with Burgandine that the amendment “was not intended to cover run-of-the-mill communications such as calls and
¶ 27 To sum it up, we decline Burgandine‘s request to depart from the plain and ordinary meaning of “contacts” by construing it to require “some sort of physical proximity” that the plain text doesn‘t support. We recognize that the plain meaning of “contacts” in subsection (1)(a) renders “any form of communication” in subsection (1)(b) duplicative, but it is for the legislature, not this court, to re-define “contacts” should it intend it to mean something different than what it plainly does. See People v. Butler, 2017 COA 117, ¶ 35.
¶ 28 We therefore conclude that “contacts” under subsection (1)(a) includes phone and text message communications.
D. Sufficient Evidence Supports the Stalking Conviction
¶ 29 Beyond arguing that phone and text message communications are not prosecutable “contacts” under subsection (1)(a), Burgandine doesn‘t suggest the evidence was otherwise insufficient to support
¶ 30 We thus conclude sufficient evidence supports Burgandine‘s credible threat stalking conviction.
III. Conclusion
¶ 31 The judgment of conviction is affirmed.
JUDGE FREYRE and JUDGE BROWN concur.