Peo v. Plemmons , 2021 COA 10 ( 2021 )

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 section 18-3-203(1)(h), C.R.S. 2020, under which a person
commits second degree assault if he or she spits on a peace officer
with “intent to infect, injure, or harm,” is unconstitutionally vague
because of a lack of a statutory definition of “harm.” Relying on the
precedent of People v. Graves, 2016 CO 15, and the cases which
proceeded it, this division assesses the statute’s constitutionality
using the beyond a reasonable doubt standard. Applying tools of
statutory construction, the division concludes that the meaning of
“harm” includes psychological and emotional harm. Because the
meaning of the word “harm” can be ascertained, Plemmons cannot
prove beyond a reasonable doubt that the statute is
unconstitutionally vague.
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.
COLORADO COURT OF APPEALS 2021COA10
Court of Appeals No. 18CA0481
La Plata County District Court No. 16CR632
Honorable William L. Herringer, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Cheryl Lynette Plemmons,
Defendant-Appellant.
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 Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 After she spat on two deputies conducting a welfare check in
her home and then spat on one of them again while detained in the
back of a police cruiser, defendant, Cheryl Lynette Plemmons, was
charged with three counts of second degree assault for causing
bodily fluids to come into contact with a peace officer. A jury found
her guilty of each of the charges — two under section 18-3-
203(1)(h), C.R.S. 2020, and one under section 18-3-203(1)(f.5),
C.R.S. 2020.
¶2 In this appeal, Plemmons contends that two of her convictions
should be reversed because section 18-3-203(1)(h) is
unconstitutionally vague, and that in any event the evidence at trial
was insufficient to establish that she spat on the deputies with the
intent to “infect, injure, or harm” them, as the statute requires. She
also asserts that all three of her convictions should be reversed
because the trial court erroneously instructed the jury on the
definition of “harm,” and that the trial court erred by not holding an
evidentiary hearing on her motion to suppress. Because we
disagree with her arguments, we affirm Plemmons’s convictions.
1
Background
¶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,
2
Deputy Blakely explained to Plemmons that they were transporting
her to Mercy Medical Center to be treated. Plemmons responded by
intentionally spitting in both deputies’ faces. The protective
custody then turned into an arrest.
¶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
section 18-3-203(1)(h). For spitting on Deputy Paige in the patrol
car, Plemmons was charged with one count of second degree
assault under section 18-3-203(1)(f.5). A jury found her guilty of all
charges.
Vagueness Challenge
¶8 Plemmons contends that section 18-3-203(1)(h), under which
a person commits second degree assault if she spits on a peace
3
officer with “intent to infect, injure, or harm,” is unconstitutionally
vague, both facially and as applied to her. We disagree.
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
1 For the first time in her reply brief, Plemmons urges us “not [to]
apply the beyond a reasonable doubt standard because it is out of
step with our supreme court’s latest thinking and because the
standard is badly misguided.” We do not consider arguments
raised for the first time in a reply brief. See, e.g., People v. Boles,
280 P.3d 55, 61 n.4 (Colo. App. 2011). But even if the question of
what standard to apply had been timely raised, we would remain
bound by supreme court precedent. See Rocky Mountain Gun
Owners v. Polis, 2020 CO 66, ¶ 30 (“[The] presumption of
constitutionality can be overcome only if it is shown that the
enactment is unconstitutional beyond a reasonable doubt.”).
4
necessarily guess as to its meaning and differ as to its application.’”
People v. Gross, 830 P.2d 933, 937 (Colo. 1992) (citation omitted).
“This requirement of reasonable definiteness provides assurance
that a penal statute gives fair warning of proscribed conduct so that
persons may guide their actions accordingly.” People v. Devorss,
277 P.3d 829, 835 (Colo. App. 2011). It also “ensures that
statutory standards are sufficiently specific so that police officers
and other actors in the criminal justice system can avoid arbitrary
and discriminatory application.” People in Interest of L.C., 2017
COA 82, ¶ 8. “The degree of vagueness tolerated depends on the
nature of the enactment . . . .” People v. Graves, 2016 CO 15, ¶ 18.
Statutes that threaten “to inhibit speech or expressive conduct
protected by the First Amendment” require greater specificity than
statutes that do not. Id.¶ 11 Plemmons filed a motion to dismiss that raised a vagueness
challenge to section 18-3-203(1)(h), thereby preserving this issue for
appeal.
B. Analysis
¶ 12 As relevant here, a person commits second degree assault if
5
[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.
§ 18-3-203(1)(h).
¶ 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 section 18-3-203(1) is ambiguous, it does not follow from
that conclusion that section 18-3-203(1)(h) is unconstitutionally
vague, either facially or as applied. See People v. Rostad, 669 P.2d
126, 128 (Colo. 1983) (“Analytical difficulty cannot be deemed
synonymous with constitutional vagueness.”). Rather, via section
18-3-203(1)(h) and section 18-3-204(1)(b), C.R.S. 2020 (third degree
assault), the General Assembly has made clear that it is a criminal
act to intentionally spit on a peace officer with any malign intent.
6
And while that statutory proscription is not, on its own, dispositive
of Plemmons’s vagueness challenge, we also conclude that the lack
of a definition of “harm” does not invite arbitrary or discriminatory
enforcement because the General Assembly’s intent may be
ascertained by resorting to the legislative history and the rules of
statutory construction.
¶ 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 section 18-3-
203(1)(h) did not provide her with adequate notice of the mens rea
associated with second degree assault.
¶ 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
7
standard of conduct is specified at all.’” Bd. of Educ. v. Wilder, 960
P.2d 695, 703 (Colo. 1998) (quoting Coates v. City of Cincinnati, 402
U.S. 611, 614 (1971)). Thus, to prevail on an as-applied
constitutional challenge, “it must be shown that the statute does
not, with sufficient clarity, prohibit the conduct against which it is
enforced.” People in Interest of L.C., ¶ 10.
¶ 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”).
8
2. Facial Challenge
¶ 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 section 18-3-203(1)(h) unconstitutionally vague on its face
even if we reject her as-applied vagueness challenge.
¶ 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
9
(holding that facial vagueness challenge can succeed only if there is
“no reliable way” to interpret the statute, or there is “grave
uncertainty” about its scope); see also Kolender v. Lawson, 461 U.S.
352, 358 (1983) (“[T]he more important aspect of vagueness
doctrine ‘is not actual notice, but the other principal element of the
doctrine — the requirement that a legislature establish minimal
guidelines to govern law enforcement.’”) (citation omitted).
¶ 20 Key to evaluating Plemmons’s challenge is thus whether the
lack of a definition of “harm” in section 18-3-203(1)(h) invites
arbitrary or discriminatory enforcement of the second degree
assault statute. Plemmons argues that the risk of arbitrary and
discriminatory enforcement is real because, as she puts it, “[t]he
amorphous line between ‘harm’ in second degree assault and
‘harass, annoy, threaten, or alarm’ in third degree assault allows
state officials to arbitrarily select felony and misdemeanor charges
for substantially the same conduct.”2 Asserting that people of
2 In making this argument in her opening brief, Plemmons hints at
— but does not raise — an equal protection challenge under the
Colorado Constitution. See People v. Marcy, 628 P.2d 69, 74-75
(Colo. 1981) (“[S]eparate statutes proscribing with different
penalties what ostensibly might be different acts, but offering no
10
ordinary intelligence must guess as to the word’s meaning,
Plemmons highlights the fact that while the prosecutor urged the
trial court to define “harm” in terms of bodily injury, the court
ultimately instructed the jurors that the term encompasses only
emotional or psychological harm. That legal professionals
fundamentally disagreed over the definition of “harm,” Plemmons
argues, establishes the statute’s vagueness.
a. “Harm” is Ambiguous
¶ 21 Spitting on a peace officer for an improper reason is prohibited
by two different statutes, section 18-3-203(1)(h) and section 18-3-
204(1)(b), that are differentiated only by the actor’s intent. Under
section 18-3-203(1)(h), spitting on a peace officer with the intent to
“infect, injure, or harm” is second degree assault, a felony. Under
section 18-3-204(1)(b), spitting on a peace officer with the intent to
intelligent standard for distinguishing the proscribed conduct, run
afoul of equal protection under state constitutional doctrine.”),
superseded by statute, Ch. 212, sec. 4, 1981 Colo. Sess. Laws 973.
In her reply brief, Plemmons comes closer by citing to Marcy and
other similar cases, but because we will not consider issues raised
for the first time in a reply brief, People v. Grant, 174 P.3d 798, 803
(Colo. App. 2007), to the extent that Plemmons intends to raise an
equal protection challenge, we do not address it.
11
“harass, annoy, threaten, or alarm” is third degree assault, a
misdemeanor.
¶ 22 At the threshold, we agree with the trial court’s conclusion
that “harm,” as that term appears in section 18-3-203(1)(h), is
ambiguous. Statutory language is ambiguous if it is “susceptible of
more than one reasonable interpretation,” People v. Diaz, 2015 CO
28, ¶ 13, and here, “harm” is a broad term that could reasonably be
interpreted in a number of different ways, including, among other
things, physical injury or emotional, reputational, or financial
damage.
¶ 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
12
courts are unable to determine, with reasonable certainty, what the
legislature intended, or so incomplete and inconsistent in its
provisions that it cannot be executed.” Bd. of Cnty. Comm’rs v. City
& Cnty. of Denver, 194 Colo. 252, 257, 571 P.2d 1094, 1097 (1977)
(citation omitted).
¶ 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 section 18-3-203(1)(h).
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. § 2-4-203(1), C.R.S. 2020.
¶ 26 Before 2015, section 18-3-204(1)(b) provided that a person
committed misdemeanor third degree assault if she acted “with
intent to infect, injure, harm, harass, annoy, threaten, or alarm” an
officer when causing the officer to come into contact with saliva or
13
other fluids. In 2015, the General Assembly removed “infect,”
“injure,” and “harm” from the misdemeanor assault statute and
added those terms to a new subsection of section 18-3-203, which
defines second degree assault. Ch. 337, secs. 2, 3, §§ 18-3-203,
-204, 2015 Colo. Sess. Laws 1366-67. Under the amended section
18-3-203(1)(h), a person commits second degree assault if, “[w]ith
intent to infect, injure, or harm” a peace officer, she “causes [the
peace officer] to come into contact with . . . saliva . . . by any
means . . . .”
¶ 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,
14
annoy, threaten, or alarm” remained misdemeanor third degree
assault. § 18-3-204(1)(b). But the new statute increased the
severity of punishment for spitting on a police officer with the intent
to “infect, injure, or harm” by making that a felony second degree
assault. § 18-3-203(1)(h).
¶ 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
15
term ‘harm’ to make sure that a person who exposes an officer to
bodily fluids with the intent to cause such psychological or
emotional harm is not shielded by the fact that the bodily fluids
were not, in fact, infectious.” We agree with the trial court’s
understanding of the legislative intent and, accordingly, conclude
that the trial court narrowed the statute enough to preserve its
constitutionality.
¶ 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
section 18-3-203(1)(h) from misdemeanor third degree assault
under section 18-3-204(1)(b).
16
¶ 32 In sum, after looking to the legislative history of the second
degree assault statute and applying the rules of statutory
construction, we are not left with any “grave uncertainty” about the
statute’s scope. Johnson, 576 U.S. at 597. And, absent that
uncertainty, we further conclude that section 18-3-203(1)(h) is not
likely to invite arbitrary or discriminatory enforcement. It is thus
not unconstitutionally vague on its face.
Sufficiency of the Evidence
¶ 33 Plemmons contends that we should reverse her convictions
under section 18-3-203(1)(h) because the evidence at trial was
insufficient to prove beyond a reasonable doubt that she intended
to harm the deputies by spitting in their faces while still inside the
house. We conclude that there was sufficient evidence to support
these two convictions.
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.
17
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
18
psychological harm on the deputies when she spat in their faces.
But they also could have doubted Plemmons’s claim and instead
looked to other evidence reflecting her mental state. See People v.
Grant, 174 P.3d 798, 812 (Colo. App. 2007) (“‘A defendant’s mental
state may be inferred from his or her conduct and other evidence,’
including the circumstances surrounding the commission of the
crime.”) (citations omitted). Deputy Blakely, for example, described
Plemmons’s demeanor as “highly agitated,” and said that “she was
yelling at us when we came into the residence.” He testified that
she unleashed “a long string of insults” and, as the conversation
went on, “produced a knife from the area next to her on the kitchen
table . . . [and] immediately sort of brandished it at us.” For her
part, Plemmons conceded that she yelled at the deputies and used
language that was demeaning to them. She acknowledged that she
used threatening language toward one officer, implying that neither
he nor his family would be safe, and admitted that she continued to
spit at the deputies multiple times throughout the encounter.
¶ 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
19
reasonable doubt that she intended to inflict emotional or
psychological harm on the deputies when she spit on them inside
her house.
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
20
the trial court’s instructions are correct statements of the law and
“fairly and adequately cover the issues presented,” we will not
disturb a trial court’s ruling on a tendered jury instruction. People
v. Van Meter, 2018 COA 13, ¶ 41 (citation omitted).
¶ 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
21
1. Fear,
2. Anxiety,
3. 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 section 18-3-203(1)(h) and section 18-3-
203(1)(f.5).
¶ 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,
22
or only the last one; and (5) it left uncertain how serious the
intended harm would need to be in order to fall within the statute.
Addressing each of these arguments in turn, we discern no error.
¶ 44 First, we have already concluded that section 18-3-203(1)(h) is
not unconstitutionally vague and that the trial court’s limiting
construction of “harm” was consistent with the General Assembly’s
intent. The instruction was likewise consistent with both the trial
court’s interpretation of the statute and the intent of the legislature.
¶ 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
23
distress” did not encourage the jurors to speculate. A reasonable
reading of the instruction establishes that “fear” and “anxiety” were
examples of the types of psychological or emotional harm that
would fall within the statute, and that “any other type of significant
distress” was a catchall that permitted the jury to consider whether,
by spitting on the deputies, Plemmons intended to inflict any other
type of emotional or psychological harm. Even if an exhaustive list
were required, the definition’s catchall language ensured that the
definition was complete and did not invite the jurors to venture
outside the bounds of the trial court’s limiting construction.
¶ 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
24
differentiate “harm” from the lesser injuries such as “alarm” or
“annoy” that appear in the third degree assault statute, section 18-
3-204(1)(b).
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,” Crim. P. 41(e), we
conclude that no hearing was required.
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.
25
B. Governing Law and Standard of Review
¶ 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
26
evidence has ‘become so attenuated as to dissipate the taint.’”
People v. Lewis, 975 P.2d 160, 170 (Colo. 1999) (quoting Nardone v.
United States, 308 U.S. 338, 341 (1939)). Or, put another way,
“[e]vidence is admissible when the connection between
unconstitutional police conduct and the evidence is remote or has
been interrupted by some intervening circumstance, so that ‘the
interest protected by the constitutional guarantee that has been
violated would not be served by suppression of the evidence
obtained.’” Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056, 2061
(2016) (quoting Hudson v. Michigan, 547 U.S. 586, 593 (2006)).
¶ 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
27
misconduct carte blanche to respond with any means, however
violent.’” Id. (quoting Doke, 171 P.3d at 240-41).
¶ 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
28
jumped up, grabbed a shotgun, and pointed it at them. Id. The
deputies withdrew and called the SWAT team, which eventually
entered the house and arrested Doke. Id. The deputies then
obtained a search warrant for the house, recovered the shotgun,
and took photographs and videos of the property. Id.
¶ 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
29
assaulting a police officer.” Tomaske, ¶ 1. The district court
granted Tomaske’s motion to suppress, but, holding that Tomaske’s
“decision to resist ‘br[oke] the causal connection between the police
illegality and the evidence of the new crime,’” the supreme court
reversed. Id. at ¶ 17 (citation omitted). Tomaske’s commission of a
new criminal act was key to application of the attenuation doctrine:
“[U]nlike the scenario where police officers’ misconduct leads to
their discovery of evidence of a completed crime (e.g., finding
contraband), this case involves police misconduct that led to the
commission of a new crime. The exclusionary rule applies to the
former situation, not the latter.” Id. at ¶ 18.
¶ 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
30
official misconduct. Strieff, 579 U.S. ___, 136 S. Ct. at 2061-62.3
Strieff, however, did not involve the commission of a new crime in
the wake of a police officer’s Fourth Amendment violation. Instead,
in that case, after conducting an illegal stop, the officer discovered
that the defendant had an outstanding arrest warrant. Id. at ___,
136 S. Ct. at 2060. In other words, the officer’s misconduct in
Strieff led to his “discovery of evidence of a completed crime,” a
situation that calls for an evidence-based application of the
attenuation doctrine, rather than to the “commission of a new
crime,” which, under Tomaske, does not. Tomaske, ¶ 18.
¶ 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
3 Plemmons bases her suppression argument on the Fourth
Amendment alone and does not assert that the trial court should
have excluded the evidence under article II, section 7 of the
Colorado Constitution. See People v. McKnight, 2019 CO 36, ¶ 61.
We therefore do not reach this issue. See People v. Lewis, 2017
COA 147, ¶ 12 n.2 (noting that if a defendant does not explicitly
invoke the state constitution, “we must presume the defendant’s
objections are based on federal, not state, constitutional grounds,
and limit our review accordingly”) (citation omitted).
31
entered her home. With the causal chain broken, the trial court
correctly decided that the attenuation doctrine applied without
regard to the legality of the deputies’ entry. And, that conclusion
correctly encompassed not only the charged acts themselves, but
also other evidence probative of Plemmons’s intent and state of
mind. See People v. Breland, 728 P.2d 763, 765 (Colo. App. 1986)
(holding that evidence that was “probative” of an offense that
occurred after an officer’s warrantless entry “was not subject to
suppression pursuant to the exclusionary rule”).
Conclusion
¶ 62 The judgment is affirmed.
JUDGE DAVIDSON concurs.
JUDGE TAUBMAN specially concurs.
32
JUDGE TAUBMAN, specially concurring.
¶ 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 section 18-
3-203(1)(h), C.R.S. 2020.
¶ 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
33
lead to the vacation of Plemmons’s two felony convictions under
section 18-3-203(1)(h).
¶ 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
34
violated the Colorado Constitution. This decision changed the
standard from that applied four years earlier in People v. Rucker, 5
Colo. 455 (1880), in which the supreme court held there was a
presumption that every statute is rational and “such presumption is
not to be overcome unless the contrary is clearly demonstrated.” Id.
at 458-59 (citation omitted). Twelve years after Alexander was
decided, the supreme court extended its reach to assessments of
the constitutionality of statutes under the Federal Constitution.
Farmers’ Indep. Ditch Co. v. Agric. Ditch Co., 22 Colo. 513, 528-29,
45 P. 444, 450 (1896).
¶ 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
35
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
36
Standard for Reviewing a Statute’s Constitutionality, 23 Colo. Law.
835 (Apr. 1994).
¶ 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
37
burden of proof in a criminal case — beyond a reasonable doubt —
is factual, while the determination of a statute’s constitutionality
using the same language is purely legal; and (5) the beyond a
reasonable doubt standard in constitutional challenges is “typically
recited and ignored . . . it appears as no more than a thinly-veiled
rationalization.” Id. at 658.
¶ 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
38
must be so clear that the court can act without reservation.” Id. at
¶ 37, 417 P.3d at 858.
¶ 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
39
the Supreme Court and the continuing decisions of Colorado’s
appellate courts have followed a standard of extreme judicial
deference that is not consistent with the Framers’ intent.
¶ 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.
40
III. Application of the Beyond a Reasonable Doubt
Constitutionality Test in This Case
¶ 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, subsection (1)(h) provides
that a person commits second degree assault if he or she spits on a
police officer with the intent “to infect, injure, or harm.” Plemmons
asserts that this statute is unconstitutionally vague on its face and
as applied to her because the meaning of “harm” is subject to
different interpretations.
¶ 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
41
meaning and differ as to its application.’” Supra ¶ 10 (quoting
People v. Gross, 830 P.2d 933, 937 (Colo. 1992)).
¶ 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. 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

The former purpose — giving fair warning of proscribed conduct so
that people may guide their actions accordingly — is not really at
play here. It would be reasonable to conclude that spitting at a
police officer would subject a person to some type of criminal
liability.
42
between “harm” in the second degree assault statute and the
phrase “harass, annoy, threaten, or alarm” in the third degree
assault statute, section 18-3-204(1)(b), (3), C.R.S. 2020, which
describes a misdemeanor.
¶ 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
43
psychological or emotional harm from the spitting. Rather, one
officer simply testified that he washed his face shortly after the
officers took Plemmons to the hospital. Accordingly, the
prosecution did not present any evidence that Plemmons’s spitting
caused the police officers psychological or emotional harm.
¶ 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
44
statute is not so “vague, indefinite, and uncertain” that courts are
unable to determine the legislature’s intent. Bd. of Cnty. Comm’rs
v. City & Cnty. of Denver, 194 Colo. 252, 257, 571 P.2d 1094, 1097
(1977) (citation omitted). On the other hand, if we presume that the
second degree assault statute is constitutional, but do not consider
its unconstitutionality beyond a reasonable doubt, I would conclude
that the second degree assault statute is unconstitutionally vague.
I would reach this conclusion because, absent the legislative
history, one could not reasonably conclude what conduct the
second degree assault statute was intended to punish.
¶ 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
45
charged with third degree assault for harassing, annoying,
threatening, or alarming the police officers instead of second degree
assault for causing them psychological or emotional harm. Absent
evidence of psychological or emotional harm, it would nevertheless
be easy for prosecutors to charge a defendant with second, rather
than third, degree assault for conduct directed at police officers, as
was the case here.
¶ 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.
46