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People v. Graves

Supreme Court of Colorado, En Banc

February 29, 2016

the People of the State of Colorado, Petitioner:
v.
Gary Graves, Respondent:

Certiorari to the District Court. Adams County District Court Case No. 12CV839.

SYLLABUS

The supreme court construes the " lewd fondling or caress" provision of Colorado's public indecency statute, section 18-7-301(1)(d), C.R.S. (2015), and holds that, because the provision does not burden a substantial amount of constitutionally protected speech or expressive conduct, the provision is not unconstitutionally overbroad. Moreover, because the defendant's conduct in this case meets any reasonable definition of " lewd fondling or caress," the statute is not vague as applied to his actions, and he cannot complain of the alleged vagueness of the law as applied to the hypothetical conduct of others. The supreme court therefore reverses the district court's order holding that section 18-7-301(1)(d) is unconstitutionally overbroad and vague.

Attorneys for Petitioner: Dave Young, District Attorney, Seventeenth Judicial District, Cameron Munier, Deputy District Attorney, Brighton, Colorado.

Attorneys for Respondent: Alison Ruttenberg, Alternate Defense Counsel, Boulder, Colorado.

Attorneys for Amicus Curiae Colorado Criminal Defense Bar: The Noble Law Firm, LLC, Antony Noble, Tara Jorfald, Lakewood, Colorado.

OPINION

MÁ RQUEZ, JUSTICE.

[¶1] We granted the People's petition for a writ of certiorari to review an order of the Adams County District Court concluding that the " lewd fondling or caress" provision of Colorado's public indecency statute is unconstitutionally overbroad and vague. We reverse. Because the provision does not burden a substantial amount of constitutionally protected speech or expressive conduct, the provision is not unconstitutionally overbroad. Moreover, because the defendant's conduct in this case meets any reasonable definition of " lewd fondling or caress," the statute is not vague as applied to his actions, and he cannot complain of the alleged vagueness of the law as applied to the hypothetical conduct of others.

[¶2] Defendant Gary Graves was arrested when an undercover police officer observed him stroking another man's erect penis, through the man's pants, at an adult movie theater. The People charged Graves in Adams County Court with public indecency, a class 1 petty offense, in violation of section 18-7-301(1)(d), C.R.S. (2015). That provision defines public indecency to include " a lewd fondling or caress of the body of another person" in a " public place" or " where the conduct may reasonably be expected to be viewed by members of the public." Id. Graves moved to dismiss the charge, arguing that this provision is unconstitutionally overbroad and vague, both on its face and as applied to his conduct. The county court agreed that the provision is unconstitutionally vague and dismissed the case without addressing Graves's overbreadth claim.

[¶3] The People appealed to the Adams County District Court, which affirmed the ruling below. The district court noted that the legislature had not defined the statutory terms " lewd," " fondling," or " caress," and that what society considers to be " lewd" changes over time. The court suggested that the statute might apply to a nursing mother, and opined that the People's interpretation of the terms " lewd" and " caress" could result in " literally thousands of arrests each week" of people engaging in ordinary public displays of affection. The court concluded that section 18-7-301(1)(d) is, therefore, unconstitutionally overbroad and vague. The People petitioned this court to review the district court's judgment.[1]

[¶4] We reverse. The public indecency statute as a whole targets only overtly sexual activity in public. In this vein, section 18-7-301(1)(d) does not criminalize innocuous public displays of affection; it proscribes only " lewd" fondling or caressing of another person's body in a public place. " Lewd" behavior is commonly understood to be overtly sexualized behavior that is indecent or offensive; indeed, the term is often defined as " obscene" or " lascivious." As construed in this opinion, section 18-7-301(1)(d) does not reach constitutionally protected speech or expressive conduct; to the extent that the statute might reach protected expression under hypothetical facts not before us, such potential overbreadth is not " substantial" in relation to the statute's legitimate sweep and may be addressed by courts on a case-by-case basis. Moreover, Graves's conduct falls well within the proscriptive bounds of section 18-7-301(1)(d) and is not shielded from regulation by the First Amendment. Because section 18-7-301(1)(d) clearly prohibited Graves's conduct in this case, the provision is not vague as applied to him, and he cannot complain of its alleged vagueness as applied to the hypothetical conduct of others. Accordingly, we reverse the district court's order holding that section 18-7-301(1)(d) is unconstitutionally overbroad and vague.

I. Facts and Procedural History

[¶5] On November 9, 2011, an Adams County deputy sheriff was conducting an undercover operation at Circus Cinema, a movie theater that shows pornographic films. According to his incident report, the deputy was standing in the aisle of the theater when he observed the defendant, Gary Graves, remove his penis from his pants, and saw another male patron begin to stroke Graves's penis. The deputy observed Graves then reach over to a third patron who was leaning against the wall and begin to stroke that man's erect penis through his pants. At that point, the deputy identified himself and arrested Graves and the others.

[¶6] The People charged Graves in Adams County Court with lewd fondling or caressing the body of another in a public place, a class 1 petty offense under the public indecency statute. § 18-7-301(1)(d), (2)(a), C.R.S. (2015).[2] Graves moved to dismiss the charge on grounds that section 18-7-301(1)(d) is unconstitutionally overbroad and vague.[3] Following argument from counsel, the county court concluded that the terms " lewd," " fondling," " caress," and " body" were not sufficiently defined in the statute or clear from ordinary usage and that no limiting construction was possible. It therefore ruled that section 18-7-301(1)(d) was unconstitutionally vague and dismissed the case. The court did not address Graves's claim of overbreadth.

[¶7] The People appealed the ruling to the Adams County District Court pursuant to Crim. P. 37.[4] The People argued that the plain and ordinary meaning of the statutory terms provides adequate notice of the conduct proscribed and is sufficient to prevent discriminatory enforcement. Graves responded that the undefined term " lewd" renders the statute unconstitutionally vague. He also defended the county court's ruling on the grounds that the statute is overbroad, arguing that it reaches a substantial amount of constitutionally protected activity.

[¶8] The district court affirmed. It noted that the statutory terms " lewd," " caress," and " fondling" are not defined. It rejected the People's argument that the dictionary definitions of these terms sufficiently delimit the scope of the statute, noting that the meaning of " lewd" can change with shifting social and cultural norms. The court reasoned that a " diverse and multicultural society needs a more specific definition of the terms to meet the requirements of Due Process" and that " [p]eople are not required to guess what others may consider to be 'lewd' or 'vulgar.'" The court intimated that Graves's conduct in this case was in fact unlawful, stating that it recognized that " the facts of this case differ[] sharply from some of the analysis provided." Nevertheless, the court concluded that " the words of the statute are too broad to provide the framework for lawful conduct." The court then summarily concluded that section 18-7-301(1)(d) is " both vague and overbroad" because it " does not meet Due Process standards for safeguards required to provide adequate notice to people of what is considered unlawful conduct." We granted the People's petition for a writ of certiorari to review the district court's judgment.[5]

II. Standard of Review

[¶9] The constitutionality of a statute is a question of law subject to de novo review. See Coffman v. Williamson, 2015 CO 35, ¶ 13, 348 P.3d 929, 934; Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007). Statutes are presumed to be constitutional. People v. Hickman, 988 P.2d 628, 634 (Colo. 1999); see also Williamson, ¶ 13, 348 P.3d at 934. This presumption is rooted in the doctrine of separation of powers and in the judiciary's respect for the roles of the legislature and the executive in the enactment of laws. City of Greenwood Vill. v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 440 (Colo. 2000). It acknowledges that " declaring a statute unconstitutional is one of the gravest duties impressed upon the courts." Id. Consequently, a party challenging the constitutionality of a statute must prove the statute's unconstitutionality beyond a reasonable doubt. Id. (citing, inter alia, Hickman, 988 P.2d at 634); see also People v. Ford, 773 P.2d 1059, 1062 (Colo. 1989) (noting that the rule requiring a challenger to prove a statute unconstitutional beyond a reasonable doubt applies in cases alleging that the statute infringes on First Amendment freedoms).

III. Analysis

[¶10] We first examine the doctrines of overbreadth and vagueness and describe the analytical framework for resolving challenges on these grounds. We then apply this framework to the facts of this case and conclude that the district court erred in ruling that section ...


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