v. Burgandine

     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
                                                              October 8, 2020

                               

No. 18CA1072, People v. Burgandine — Crimes — Stalking

     The defendant challenges his stalking conviction under section

18-3-602(1)(a), C.R.S. 2019, contending that the term “contacts”

used in that section cannot reasonably be interpreted to include

general communications, like phone calls and texts, because a

different section of the stalking statute, section 18-3-602(1)(b)

addresses “any form of communication.”

     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.
     Because the evidence showed the defendant repeatedly made

threatening text messages and phone calls to the victim, the

division affirms the stalking conviction.
COLORADO COURT OF APPEALS                                        

Court of Appeals No. 18CA1072
Jefferson County District Court No. 17CR3003
Honorable Randall C. Arp, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Edward Burgandine,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division VI
                          Opinion by JUDGE DUNN
                        Freyre and Brown, JJ., concur

                          Announced October 8, 2020


Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    For seven hours, James Edward Burgandine relentlessly

 texted and called his ex-girlfriend. Many of the texts and calls

 contained threats against her and others. A jury found Burgandine

 guilty of harassment and credible threat stalking.

¶2    Burgandine challenges only his stalking conviction,

 contending the term “contacts” in section 18-3-602(1)(a), C.R.S.

 2019 (subsection (1)(a)), under which the prosecution charged him,

 can’t reasonably be interpreted to “include general communications

 such as phone calls and text messages.” He says this is because

 phone calls and text messages fall under a different subsection of

 the stalking statute covering “any form of communication,” section

 18-3-602(1)(b) (subsection (1)(b)). And since he was not charged

 under subsection (1)(b), Burgandine maintains that insufficient

 evidence supports his credible threat stalking conviction and that

 we must vacate it. Because we disagree that phone calls and text

 messages are not “contacts” under subsection (1)(a), we affirm the

 judgment of conviction.

                           I.   Background

¶3    Burgandine and the victim share a son. After their

 relationship ended, their son lived with the victim. Although they


                                   1
 didn’t have a court-ordered custody agreement, the parents

 “work[ed] together” to find time for Burgandine to spend with their

 son.

¶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.


                                     2
 Williams v. People, 

; see also People v. Carian,

 

. To determine that intent, we start with the

 language of the statute, giving words their plain and ordinary

 meanings. People v. Burnett, 

; People v. Serra, 

. If the plain language is clear and unambiguous, we

 apply the statute as written. Burnett, ¶ 20; Carian, ¶ 14.

¶7    When possible, we give consistent, harmonious, and sensible

 effect to each part of the statute. People v. Gallegos, 

; People v. Banks, 

 (Colo. 2000). And while we

 avoid constructions that render any words or phrases superfluous,

 People v. Null, 

 (Colo. 2010), we also avoid

 interpretations that “defeat legislative intent or lead to absurd

 results,” Mosley v. People, 

.

              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


                                    3
            makes any form of communication with that
            person, . . . regardless of whether a
            conversation ensues.

  § 18-3-602(1) (emphasis added).

¶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, 

 (in

  the absence of a statutory definition “we may consider a definition

  in a recognized dictionary”); see also People v. Devorss, 

 (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).


                                    4
¶ 12   The definition is broad but clear, and it plainly includes

  general communications. Indeed, we are not the first court to

  recognize this plain meaning. Serra, ¶¶ 24-34 (interpreting

  “contact” in the context of a no-contact order to include “some

  element of direct or indirect communication, or attempted

  communication”); see also Cooper v. Cooper, 

  (Alaska 2006) (‘“Contacting,’ as a verb, means in common usage

  physically touching or communicating.”); Johnson v. State, 

 (Ga. 1994) (“To ‘contact’ is readily understood by

  people of ordinary intelligence as meaning ‘to get in touch with;

  communicate with.’” (quoting American Heritage Dictionary (3d ed.

  1992))) (alteration omitted).1


  1  Though the legislature didn’t define “contacts,” we recognize that
  other states’ stalking statutes define “contact” to include
  communications. See, e.g., 

(b)(4)(E), (F)
  (West 2019) (defining “nonconsensual contact” to include contact by
  telephone and by sending mail or electronic communications);
  

(a)(1) (West 2019) (defining “contact” as
  “any communication including without being limited to
  communication in person, by telephone, by mail, by broadcast, by
  computer, by computer network, or by any other electronic device”);
  

(F)(4)(e), (f) (West 2019) (defining
  “unconsented contact” to include contact by telephone and sending
  mail or electronic communications); 

(3)(d),
  (e) (West 2019) (defining “contact” to include “[s]ending or making
  written or electronic communications in any form” and “[s]peaking

                                    5
¶ 13   Because Burgandine doesn’t dispute that phone calls and text

  messages are communications, applying the plain and ordinary

  meaning of the word would normally end our inquiry. See Cowen,

  ¶ 12 (“[I]f the language in a statute is clear and unambiguous, we

  give effect to its plain meaning and look no further.”).

¶ 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




  with the other person by any means”); Wash. Rev. Code
  § 9A.46.110(4) (West 2019) (defining “contact” to include “in
  addition to any other form of contact or communication, the
  sending of an electronic communication to the person”); see also
  

(D)(3)(b)(v), (vi) (2019); 

(a)(5)(E), (F) (West 2019).
  2 While the People acknowledge that the plain meaning of

  “contacts” in subsection (1)(a) may “overlap” with “any form of
  communication” in subsection (1)(b), they don’t otherwise address
  Burgandine’s surplusage argument or contend that “any form of
  communication” has a meaning independent from “contacts.”

                                     6
¶ 15   In so arguing, Burgandine effectively contends that the

  resulting redundancy from applying the plain and common meaning

  of “contacts” is unsound and creates ambiguity that must be

  resolved through interpretative methods. See People v. Goodale, 

 (Colo. 2003) (recognizing we look to interpretive

  rules and legislative history only where ambiguity exists). And

  because the plain and common meaning does result in redundancy,

  we consider his arguments.

                          1.   Noscitur a Sociis

¶ 16   Under the noscitur a sociis canon, “a word is known by the

  company it keeps.” Gustafson v. Alloyd Co., 

  (1995); accord St. Vrain Valley Sch. Dist. RE-1J v. A.R.L. by &

  through Loveland, 

. 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




                                    7
  alleged victim. We see several problems with Burgandine’s

  proposed interpretation.

¶ 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, 

, ¶ 49

  (“A defendant need not be physically present to conduct

  surveillance . . . .”); People v. Sullivan, 

 (Colo.

  App. 2002) (construing “surveillance” in subsection (1)(a) to include

  electronic surveillance); cf. State v. Lee, 

 (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, 

 (Wash. 1998).




                                     8
¶ 18   Second, we are not persuaded that section 18-3-602(1)(c)

  (subsection (1)(c)), “reinforces” Burgandine’s interpretation. That

  subsection addresses emotional distress stalking and lists all

  stalking conduct from subsection (1)(a) and subsection (1)(b).

  Because the list includes “contacts” and “any form of

  communication,” Burgandine asserts that “contacts” “must have a

  more narrow meaning.” To be sure, we generally presume that

  when the legislature uses different words it intends each to mean

  something different. Colo. Med. Bd. v. Office of Admin. Courts, 

. But that doesn’t always hold true. “Redundancies are

  common in statutory drafting — sometimes in a [legislative] effort to

  be doubly sure, sometimes because of [legislative] inadvertence or

  lack of foresight, or sometimes simply because of the shortcomings

  of human communication.” Barton v. Barr, 

, ___, 

 (2020); see also Antonin Scalia & Bryan A.

  Garner, Reading Law: The Interpretation of Legal Texts 176-77

  (2012). That’s the case here where, to capture all stalking conduct,

  the legislature added a broad word (“contacts”) that subsumed a

  phrase (“any form of communications”) already in the statute.




                                    9
¶ 19   Third, and relatedly, the “preference for avoiding surplusage

  constructions is not absolute.” Lamie v. U.S. Tr., 

  (2004); accord King v. Burwell, 

 (2015). And

  “faced with a choice between a plain-text reading that renders a

  word or clause superfluous and an interpretation that gives every

  word independent meaning but, in the doing, muddies up the

  statute — courts ‘should prefer the plain meaning . . . .’” Barton v.

  U.S. Attorney Gen., 

 (11th Cir. 2018) (quoting

  Lamie, 

), aff’d sub nom. Barton, 

, 

; accord Town of Rib Mountain v. Marathon Cty., 

 (Wis. 2019); see also Scalia & Garner at 176 (“Put

  to a choice . . . a court may well prefer [an] ordinary meaning to an

  unusual meaning that will avoid surplusage.”). So, when a word

  has a plain and ordinary meaning, we can’t force it to mean

  something it doesn’t just to avoid surplusage. See People v. Voth,

  

 (“A commonly accepted meaning is preferred over

  a strained or forced interpretation.”).

¶ 20   Fourth, Burgandine’s proposed interpretation “muddies up the

  statute.” Barton, 

. Specifically, it injects

  ambiguity and presents due process concerns. Due process


                                     10
  requires a criminal statute to provide “fair warning of prohibited

  conduct” and “standards that are sufficiently precise to avoid

  arbitrary and discriminatory enforcement.” People v. Graves, 

. And though Burgandine asserts that we should

  construe “contacts” to imply “some sort of physical proximity”

  requirement, he doesn’t say what that means or how a defendant

  could reasonably know what conduct is prohibited. Nor does he

  explain how prosecutors or courts would apply such an amorphous

  requirement.

¶ 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, 

 (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., § 18-9-111(1)(a), C.R.S. 2019 (defining

  harassment to include touching and “physical contact”). But

  because the legislature didn’t define “contacts” in subsection (1)(a)

  to include physical proximity, neither will we. People v. Benavidez,


                                    11
  

 (Colo. App. 2009) (“[W]e must accept the General

  Assembly’s choice of language and not add or imply words that

  simply are not there.”); see also People v. Diaz, 

.

¶ 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, 

 (“[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


                                    12
  and either “repeatedly follow[ed] that person” or “repeatedly [made]

  any form of communication with that person.” § 18-9-111(4)(a)(I)-

  (II), C.R.S. 1992; see also Ch. 88, sec. 1, § 18-3-602, 

 (relocating the relevant portion of section

  18-9-111(4) to section 18-3-602).

¶ 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, § 18-9-111,

  

.

¶ 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


                                    13
  texts.” And given that leaving a note on a car requires no proximity

  to the victim, we don’t discern any legislative intent to narrow the

  meaning of “contacts” or tether it to “some sort of physical

  proximity.” Rather, the legislative discussion focused on expanding

  the statute to cover more types of stalking conduct.

¶ 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, 

.

¶ 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


                                     14
  his stalking conviction. And our review of the evidence confirms

  that the prosecution introduced substantial and sufficient evidence

  showing that Burgandine repeatedly threatened the victim through

  phone calls and text messages. See People v. Donald, 

 (discussing our review of a sufficiency of the evidence

  challenge).

¶ 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.




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