People v. Coleby

JUSTICE RICE delivered the Opinion of the Court.

[11] JUSTICE COATS dissenting:

[12] Although I agree with the majority and district court that the crime of violation of a restraining order cannot properly be characterized as a strict liability offense, I disagree that section18-1-503(4), 6 C.R.S. (2001), requires application of the mental state "knowingly" to every element of the crime. Specifically I do not agree that by permitting proof of a defendant's actual knowledge of the contents of the restraining order to substitute for proof of personal service the legislature must have intended to apply a general criminal mens rea to every element of the offense. Because I also believe that our failure at times in the past to clearly articulate and distinguish the constitutional limitations and principles of statutory construction applicable to culpable mental states has led to some confusion in both drafting and construing criminal statutes, I write separately to explain my views.

[13] Initially, however, I must note the necessarily advisory nature of our resolution of this particular question of law, which is accentuated by the unusual appellate history of this particular case. The People petitioned this court for a writ of certiorari to review a holding of the district court, sitting as the court of direct appeal from a county court prosecution. Following the defendant's acquittal of two counts of violating a restraining order, the People appealed to the district court pursuant to section16-12-102(1), 6 C.R.S. (2001), challenging the county court's elemental instruction permitting the jury to convict only if it found that the defendant committed the prohibited acts "intentionally and knowingly."¹Although the People expressly conceded in their appeal to the district court that their challenge extended only to the specific intent requirement, having failed at trial to object to the requirement that the acts be committed knowingly, they challenge in this court the district court's conclusions that the offense is not one of strict liability and that the culpable mental state of "knowingly" applies to every element of the offense.

[14] The two separate charges of violating a restraining order arose from communications in several letters sent by the defendant to a friend from jail. Apparently the only prosecution theory to survive the defendant's motion for judgment of acquittal involved an allegation that a remark in one of the letters violated two different restraining orders. After blaming the protected person (the mother of his children) for the defendant's predicament, the letter contained an imperative statement to their mutual friend to wish the mother a Merry Christmas and tell her that the defendant loved her too.

[15] The first restraining order, from an earlier civil case, prohibited the defendant from contacting the protected person, as well as from directing another person to injure, threaten, molest, disturb, interfere with or annoy her. The second order, from an earlier criminal case, also prohibited the defendant from contacting her. The trial court refused to instruct on the no-contact portion of the civil restraining order because it specifically limited its definition of "contact" to telephoning, following, or visiting the plaintiff, of whichPage 426there was no evidence. The trial court did instruct the jury with regard to violation of the criminal restraining order and the remainder of the civil order; however, it limited the conduct elements of the offenses to committing an act prohibited by the applicable court order intentionally and knowingly.²Because the defendant did not contest service of the restraining order in the civil case, and actually stipulated that he was present in court in the criminal case when he was ordered to have no contact with the protected person, the question of service or knowledge of the contents of the orders never became an issue at trial.

[16] I fundamentally disagree with the majority's application of section18-1-503(4) in this case. That section, much like the provisions of title 2, article 4, of the revised statutes, is a legislatively prescribed rule of statutory construction. I understand it to be the legislature's explanation of the manner in which it intends its of use the four culpable mental states specified in section 501, §18-1-503(1), to be understood. In my view, it indicates that when a statute prescribes as an element of an offense that a defendant act "intentionally," "knowingly," "recklessly," or with "criminal negligence," it means that he must act with that same degree of culpability with regard to every element of the offense, unless a different legislative intent clearly appears. Therefore, if the legislature makes it a crime for someone to "knowingly" do something, it intends that the actor be guilty only if he acts knowingly with regard to all of the conduct and attendant circumstances necessary for the commission of the crime, rather than merely the act or circumstance that immediately follows the word "knowingly." . §2-4-214, 1 C.R.S. (2001) (rejecting the rule of statutory construction that relative and qualifying words and phrases, where no contrary intention appears, are construed to refer solely to the last antecedent with which they are closely connected). The statute clearly creates a rule explaining the legislature's intent only "[w]hen a statute defining an offense prescribes a specified culpable mental state," §18-6-803.5(emphasis added), not when it specifically requires knowledge of one particular circumstance or in one particular element. . maj. op. at 4 ("`[w]hen a statute defining an offense prescribes as an element thereof a culpable mental state [for one element]'").

[17] The crime of violation of a restraining order is atypical not only because it fails to specify a particular culpable mental state that is applicable to all prohibited conduct but because it also fails to comprehensively define the prohibited conduct. The statute proscribes as criminal a list of certain acts (which does not purport to be exhaustive) if, but only if, those acts, or others prohibited in order to protect a person from imminent danger to life or health, are also prohibited in any one of a number of enumerated kinds of court orders, with which the defendant has been personally served. In 1994, when the statute was rewritten in substantially its current form, it did not contain the word "knowledge" at all. ch. 323, sec. 1, §18-6-803.5, 1994 Colo. Sess. Laws 2010. A year later, "actual knowledge of the contents of the order" was added back into the statute, not as a separate element but rather as a substitute for demonstrating personal service. Ch. 152, sec. 3, §18-6-803.5, 1995 Colo. Sess. Laws 567. As written, the statute does not expressly require knowledge of anything for a conviction. By limiting the defendant's required knowledge to one particular element — or as in this case, an alternate way of committing one particular element — rather than prescribing "knowledge" or "knowingly" as a separate element of the offense, I believe that the legislative intent to limit application of the mental state requirement clearly appears,³and I would give effect to that intent.Page 427

[18] I, of course, agree with what I understand to be the majority's holding that a defendant may be convicted of the offense upon proof of personal service of a qualifying order, whether or not he has actual knowledge of its contents. maj. op. at 5 ("a knowing violation, which is satisfied either implicitly by personal service of the restraining order or explicitly by actual knowledge of the contents of the order"). An opposite construction would render the provision for personal service superfluous and is clearly rebutted by the sequence of amendments and legislative history. If, however, as the majority reasons, a requirement of acting knowingly applies to every element of the offense, it is difficult to see why that requirement should not also require actual knowledge of the contents of the order, regardless of personal service. A defendant could presumably know that he had been personally served with "any such order," as required by the statute, only if he knew that the order contained the requisite qualifying restrictions.

[19] While I do not understand it to be the majority's intention, I am concerned that its reliance on section18-1-503(4) is susceptible of an interpretation requiring imputation of a mental state to every element of an offense, no matter where or how it appears in the statute, in the absence of an express statement specifying the elements to which it does not apply. I do not believe such an interpretation was intended by the legislature or that the language of subsection 503(4) can be read so broadly. Nor do I believe that such an interpretation is constitutionally compelled or that it is beyond the authority of the legislature to create a crime of violating a restraining order without a general criminal mens rea.

[20] Despite the general, common-law requirement for the concurrence of an act and a culpable mental state, such a requirement is neither constitutionally nor statutorily mandated. In Colorado, criminal liability may be premised simply upon a voluntary act, §18-1-502, 6 C.R.S. (2001); ,669 P.2d 126(Colo. 1983), and the legislature specifically provides for strict liability crimes. §18-1-502. The Supreme Court has recognized the validity of offenses of not only strict but even vicarious liability, and has never attempted to define a due process limitation on offenses without culpable mental states. ,342 U.S. 246(1952). We have sanctioned strict liability crimes involving greater exposure to incarceration than the class 2 misdemeanor in this case. ., ,676 P.2d 702,706(Colo. 1983) (upholding legislature creation of strict liability crime of cruelty to animals — a class 1 misdemeanor, punishable by up to two years in jail). Even with respect to common-law crimes (which this offense clearly is not), the Supreme Court has not required a culpable mental state but has merely held that as a matter of statutory construction, mere silence should not be understood as an attempt to eliminate a common law mental element. ,342 U.S. at 262; .,438 U.S. 422,437(1978); ,830 P.2d 933,940(Colo. 1992); ,674 P.2d 354,358(Colo. 1984).⁴

[21] Nevertheless, I would not characterize the violation of a restraining order as a strict liability offense. It clearly does not impose criminal liability for merely violating a restraining order. Even if a defendant lacks actual knowledge that his particular conduct is prohibited, the statute requires that he at least be put on notice, by personal service, of the legal process to which he is subject. Furthermore, the legislature has expressly directed that a culpable mental state may be required, even though not expressly designated in a statute, where the proscribed conduct itself necessarily involves such a culpable mental state. §18-1-503(2); , 19 F.3d 662, 665 (Colo. 2000)Page 428(applying section18-1-503(2) to find that culpable mental state of "knowingly" is necessarily involved, and therefore required, in "inducing, aiding or encouraging someone to violate [a law]," as required for contributing to the delinquency of a minor). The statute prohibits numerous specific acts, many of which necessarily involve some culpable mental state. In the instant case, the prohibited act of directing another person to injure, threaten, or molest the protected person would seem to "necessarily involve," §18-1-503(2), knowledge of what one is doing, if not an actual intent that the directed person act according to his directions. Similarly, the "contact" of a protected person as prohibited by the statute may well imply not only an awareness of the identity of the person being contacted but also some awareness of the defendant that he is contacting that person. Other acts enumerated in the statute or potentially proscribed as acts prohibited by a restraining order "to protect the protected person from imminent danger to life or health," however, clearly do not "necessarily involve" a culpable mental state.

[22] While a culpable mental state is not required or even to be presumed from mere silence in codifications of other than common-law crimes, criminal conduct must still be defined with sufficient specificity to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited to provide sufficiently explicit standards to avoid arbitrary and discriminatory enforcement, .,455 U.S. 489,498(1982). A scienter requirement may mitigate a law's vagueness. ,455 U.S. at 499. Even very broadly defined conduct is unlikely to be unconstitutionally vague if criminality ultimately depends upon the actor's intent in acting as he did, ,455 U.S. at 493, and culpable mental states have been imputed to ambiguous statutes to avoid doubts about their constitutionality. ,830 P.2d at 937,940-41; ,526 U.S. 227(1999). If section18-6-803.5were applied in circumstances that would actually make it unconstitutionally vague, a mental state might be imputed or the statute found unconstitutional as applied, but even that possibility would not justify finding a culpable mental state where none was intended.

[23] I would therefore disapprove the district court's imputation of a "knowing" mental state requirement to every element of the offense, and make clear that personal service, without more, is sufficient to put the defendant on notice of the acts prohibited by the restraining order. However, I would not characterize the statute as creating a crime of strict liability but would make clear that the mental culpability required for commission of the offense will depend largely upon the articulation in the restraining order of the prohibited conduct the defendant is charged with committing.

[24] I therefore respectfully dissent.Page 986