v. Burgandine , 2020 COA 142 ( 2020 )

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
Will. 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
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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).
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¶ 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.”
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¶ 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.
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