People v. McNeese , 865 P.2d 881 ( 1994 )

Judge TAUBMAN,

dissenting.

I respectfully dissent.

The district court found, and the majority here affirms, that the decedent had unlawfully entered defendant’s apartment, and the decedent’s entry was uninvited because the woman tenant lacked authority to invite him into the apartment. I agree that the decedent’s entry was unlawful, but I disagree that the entry was also uninvited. And, because I believe the statute requires both an unlawful and an uninvited entry, I would vacate the trial court’s order of dismissal and remand for trial.

In all but one respect, I agree with the majority that the facts of this case satisfy the criteria in People v. Guenther, 740 P.2d 971 (Colo.1987) for immunity from criminal prosecution under § 18-1-704.5, C.R.S. (1986 Repl.Vol.8B). I dissent because the unique circumstances here raise a question of statutory interpretation not discussed in Guen-ther.

As noted in the majority opinion, § 18-1-704.5 uses both the terms “unlawful entry” and “uninvited entry.” There is no case law which addresses what “uninvited” means in the context of this statute. In Guenther, swpra, our supreme court interpreted the statute but did not distinguish between the use of the words “unlawful” and “uninvited.” Therefore, the precise meaning of those words is a question of first impression here.

Statutory words and phrases should be given effect according to their plain and ordinary meaning and the statute must be read and considered as a whole. People v. District Court, 713 P.2d 918 (Colo.1986). It is presumed that the General Assembly has knowledge of the legal import of the words it uses and that it intends each part of the statute to be given effect. People v. Guen-ther, supra. Moreover, a statute should be interpreted to give consistent, harmonious, and sensible effect to all its parts. People in Interest of D.L.E., 645 P.2d 271 (Colo.1982).

Our primary task in construing a statute is to ascertain and give effect to the intent of the General Assembly. Charnes v. Boom, 766 P.2d 665 (Colo.1988).

Section 2-4-201, C.R.S. (1980 RepLVol. IB) states in part that: “[I]n enacting a statute, it is presumed that: ... (b) the entire statute is intended to be effective; [and] (e) a just and reasonable result is intended .... ” Additionally, “[a] court, in interpreting statutory language, is required to give effect to every word, phrase, clause, sentence and section, and cannot presume that the General Assembly used language idly and with no intent that meaning should be given to it.” In re Marriage of Wells, 850 P.2d 694, 697 (Colo.1993) (fn. 6).

Here, since the General Assembly used the terms “unlawful entry” and “uninvited entry,” the above principles of statutory construction would lead us to postulate that each phrase has a distinct meaning. And, in determining whether such was, indeed, the legislative intent, we must look to the plain and obvious meaning of these terms. People v. Browning, 809 P.2d 1086 (Colo.App.1990).

In my view, the words “unlawful” and “uninvited” have different plain meanings.

Section 18-4-201, C.R.S. (1986 Repl.Vol. 8B) states that: “[A] person ‘unlawfully enters or remains’ in or upon premises when he is not licensed, invited, or otherwise privileged to do so.” This statutory definition indicates that one who enters premises without invitation necessarily enters unlawfully. However, because of the distinct meaning of the term “uninvited,” one may be invited onto certain premises yet be there unlawfully-

Section 13-21-115(5)(c), C.R.S. (1992 Cum. Supp.) defines “invitee” as “a person who enters or remains on the land of another to transact business in which the parties are mutually interested.... ”

Also, “invitation” has been defined as “a term of considerable breadth, ... [which] may be used to express the relation between an owner or occupier of land and one who comes thereon under certain circumstances.” Further, an “invitee” is defined as “one who goes on the premises of another in answer to an expressed or implied invitation of the owner or occupant.” 48A C.J.S. Invitation. Thus, an “uninvited entry” is simply one without an express or implied invitation of the owner or occupant of certain premises.

On the other hand, “unlawful entry” means “an entry upon lands effected peaceably and without force, but which was without color of title and is accomplished by means of fraud or some other willful wrong.” Black’s Law Dictionary 1706 (rev. 4th ed. 1968). Therefore, a person could be invited without color of title or through fraudulent means, and yet enter land unlawfully. Indeed, this may occur when a family member or roommate invites a person onto his or her property, unaware that another family member or roommate has directed that person not to enter the property.

Here, the district court correctly found that the victim’s entry was “unlawful,” since it violated the provisions of the woman occupant’s oral tenancy. However, in my view, the district court erred in concluding that the victim was “uninvited.” The woman clearly invited the decedent into the apartment, albeit that she was not authorized to make such an invitation. Indeed, the decedent was an “invitee” under § 13-21-115(5)(c), since he entered property of another to transact business in which he and his wife were mutually interested — removing her belongings from the defendant’s apartment.

I disagree with the majority that the statute is clear and that the words “unlawful” and “uninvited” should be used interchangeably. While the statute does refer to “the uninvited entry,” suggesting that it refers back to “an unlawful entry,” it does not follow that the words mean the same thing. As noted above, under the provisions of § 18-4-201, C.R.S. (1986 Repl.Vol. 8B), all uninvited entries are unlawful. This does not mean that there cannot be invited entries which are also unlawful. In my view, this means that the statute may be ambiguous.

On its face, the statute can be read to mean either that “unlawful” and “uninvited” are the same or that “unlawful” and “uninvited” are different. While I believe the statute is clear based upon the plain meaning analysis above, the statute could be perceived as ambiguous. If it is viewed as ambiguous, we must look to extrinsic aids to interpret it.

Section 2-4-203, C.R.S. (1980 Repl.Vol. IB) states:

(1) If a statute is ambiguous, the court, in determining the intention of the general assembly, may consider among other matters:

(a) The object sought to be attained;

(b) The circumstances under which the statute was enacted;

(c) The legislative history, if any;

(d) The common law or former statutory provisions, including laws upon the same or similar subjects;

(e) The consequences of a particular construction;

(f) The legislative declaration or purpose.

With respect to § 18-1-704.5, the legislative history makes clear that the words “unlawful” and “uninvited” were intended to mean two different things. The House bill first introduced referred to “unlawful and forcible” entry while the compromise bill later adopted referred at one point to “unlawful” entry and at two other points to “uninvited” entry. The term “uninvited entry” replaced “forcible entry” in order to give greater protection to homeowners, the principal intent of the legislation. Tape Recording of Legislative Conference Committee on H.B. 1361, 55th General Assembly, 1st Session (May 22, 1985); Wilbanks, A Report to the Colorado Legislature, the Make My Day Law: Colorado’s Experiment in Home Protection, at 32 (August 1989).

The General Assembly wanted the statute to provide a defense for a homeowner who killed an intruder who might not have forcibly entered. Governor Lamm also voiced concern that the bill as introduced could allow a person to lure another into his home and then “blow him away.” Wilbanks, supra, at 29. Thus, the General Assembly did not intend that the statute would apply to a person invited into the homeowner’s residence.

This reading of the statute also clarifies the ambiguity pursuant to § 2-4-203(1) (a) and (e). While the consequence of this construction is a narrowing of the statutory interpretation, it is consistent with the legislative intent to protect homeowners from unlawful intruders. Cf. People v. Drennon, 860 P.2d 589 (Colo.App.1993).

Furthermore, the object sought to be attained by the General Assembly did not include protecting the homeowner when the entrant was an invitee. In his extensive study of § 18-1-704.5, Wilbanks observed instances where the statute had been applied to lawful invitees in a way he did not believe had been contemplated by the General Assembly. To remedy the ambiguity he perceived, Wilbanks proposed a revised statute which, among other things, would substitute the word “unlawful” for “uninvited.”

The defendant argues that the entry must be both “unlawful” and “uninvited” for the statute to apply. The district court correctly found that the entry of the decedent was “unlawful,” since it violated the provisions of the woman’s oral tenancy with the defendant. However, the district court was mistaken in holding that the decedent was “uninvited.” The woman tenant did invite the decedent into the apartment. Despite the fact that she was not authorized to make this invitation, it was still an invitation.

Construing the statute to require both an “unlawful” and “uninvited” entry, I believe the facts of this ease require reversal of the district court. Accordingly, I would vacate the order of dismissal and direct reinstatement of the information on remand.