v. Burgandine

2020 COA 142, 484 P.3d 739

• Court: Colorado Court of Appeals
• Decided: October 8, 2020
• Docket: 18CA1072, People
• Status: Published

Opinion

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

2020COA142

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 2020COA142

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, 2019 CO 101, ¶ 19; see also People v. Carian,

2017 COA 106, ¶ 8. To determine that intent, we start with the

language of the statute, giving words their plain and ordinary

meanings. People v. Burnett, 2019 CO 2, ¶ 20; People v. Serra, 2015

COA 130, ¶ 26. 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, 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

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, 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).

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, 144 P.3d 451, 457-58

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

physically touching or communicating.”); Johnson v. State, 449

S.E.2d 94, 96 (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., Alaska Stat. § 11.41.270(b)(4)(E), (F) (West 2019) (defining “nonconsensual contact” to include contact by telephone and by sending mail or electronic communications); Ga. Code Ann. § 16-5-90(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”); Okla. Stat. tit. 21, § 1173(F)(4)(e), (f) (West 2019) (defining “unconsented contact” to include contact by telephone and sending mail or electronic communications); Or. Rev. Stat. § 163.730(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 La. Stat. Ann. § 14:40.2(D)(3)(b)(v), (vi) (2019); Tenn. Code Ann. § 39-17-315(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, 78

P.3d 1103, 1107 (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., 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

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, 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).

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, 2014

CO 51, ¶ 19. 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, 590 U.S. ___, ___, 140

S. Ct. 1442, 1453 (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., 540 U.S. 526, 536

(2004); accord King v. Burwell, 576 U.S. 473, 491 (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., 904 F.3d 1294, 1301 (11th Cir. 2018) (quoting

Lamie, 540 U.S. at 536), aff’d sub nom. Barton, 590 U.S. ___, 140

S. Ct. 1442; accord Town of Rib Mountain v. Marathon Cty., 926

N.W.2d 731, 738 (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,

2013 CO 61, ¶ 21 (“A commonly accepted meaning is preferred over

a strained or forced interpretation.”).

¶ 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

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, 2016

CO 15, ¶ 17. 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, 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., § 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,

11 222 P.3d 391, 394 (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, 2015 CO 28, ¶ 15.

¶ 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

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, 2010 Colo.

Sess. Laws 294 (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,

1999 Colo. Sess. Laws 793.

¶ 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, 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

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, 2020 CO 24,

¶ 18 (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.