In Stalking Statute, Texting and Calls Considered ‘Contact’

In the plain language and intent of legislature, Court of Appeals says ‘contacts’ includes phone communication

Colorado Court of Appeals
On Oct. 12, the Colorado Supreme Court will hear oral arguments in two criminal cases in addition to arguments regarding a proposed congressional redistricting map.

The Colorado Court of Appeals in a recent opinion found the term “contacts” in the Colorado Stalking laws includes both phone calls and text messages under the plain language of the definition and the intent of legislative actions. 

The case began with a man, James Burgandine, repeatedly contacting his former partner over a seven-hour period filled with insults, which a jury eventually found worthy of conviction for credible threat stalking. The appellate court was required to opine on the definition of the term “contacts” as intended within the statute. The opinion was written by Judge Stephanie Dunn, with judges Rebecca Freyre and Jaclyn Brown concurring in the decision.

The victim and Burgandine had a relationship and share a son, according to the opinion.  Following the end of the relationship, the son lived with the victim. No court custody agreement was in place between the parties, but they worked together to find time for Burgandine to spend with their son.

However, one afternoon in 2015, the victim refused to let Burgandine see the son, after which Burgandine’s “tirade” against the victim began. “Threaded through his texts were misogynistic insults,” the opinion states. When the victim informed him that the police would be contacted, Burgandine threatened the police.

A jury later found him guilty of harassment and credible threat stalking, but only the stalking conviction was challenged by Burgandine in the appeal. He contended the term “contacts” as in Colorado statute, under which he was charged, couldn’t be interpreted including general communication such as calls and texts. 

Burgandine claimed this was due to calls and texts being listed under a different subsection of the stalking statute covering “any form” of communication, and as he wasn’t charged under that section and maintained insufficient evidence supported vacating his conviction, according to the opinion. Because the court disagreed that texts and calls are “not ‘contacts’” under the particular subsection, the court affirmed the judgement of conviction.

The court was required to interpret the statute, and according to the opinion, in such a case, the court must “give effect to the legislature’s intent.” In order to find the intent, the court began with the language of the statute, and the word’s plain and ordinary meanings.

The Credible Threat Stalking Statute defines “credible threat stalking” as when the person directly and knowingly, or indirectly through another individual, makes a credible threat repeatedly by following, approaching, contacting or placing that person under surveillance. Or, by making a threat to another person and repeatedly “makes any form of communication” with that person regardless of whether a conversation takes place.

Since the statute does not define contacts, and there was no dispute of the word as a common term, the court turned to a dictionary definition: “‘to make connection with’ and ‘get in communication with,’ including instances of ‘establishing communication with someone,’ ‘touching or meeting’ and ‘meeting connecting or communicating.’”

“The definition is broad but clear, and it plainly includes general communications,” the opinion states. “Indeed, we are not the first court to recognize this plain meaning.” 

The court pointed to a case from Alaska in 2006 that found that “contacting” as a verb in common use means communicating, and a Georgia case from 1994 where “contact” was understood to mean get in touch or communicate with.

Burgadine did not dispute calls and texts are communication. According to the opinion, the court also looked beyond the common meaning as applying renders “any form of communication” in subsection to be redundant.

“Under the noscitur a sociis canon, ‘a word is known by the company it keeps,’” the opinion states pointing to the case Gustafson v. Alloyd Co. Relying on that canon, Burgandine argued that because all other types of stalking conduct listed in subsection (1)(a) includes follows, approaches and places under surveillance, involve a physical location of a victim and two require physical proximity.

As such, Burgandine argued contacts must require some form of physical proximity, the opinion states. However, the court did not agree.

To start, the opinion states that only one of the actions implies proximity — “approaches” — but even that term doesn’t require immediate or physical proximity. 

Further, the other two actions — surveillance or following — can be done via technology without being in physical proximity. In addition, the opinion notes that if the legislature had intended a narrower meaning of contacts requiring physical proximity, it could have included a subsection.

The legislative history provided context for the addition of “contacts” to the stalking statute. Prior to the contacts addition, the statute addresses only situations where a person made a credible threat and repeatedly followed or made “any form” of communication with them, according to the opinion.

In the proposal for the amendment adding “approaches, contacts, or places under surveillance,” the court notes that Jeanne Smith of the Colorado District Attorneys Council and a contributor to the amendment, explained the “repeatedly follows” language didn’t adequately address situations where a stalker was watching or leaving notes on a victim’s car.

“Given that Ms. Smith referenced a type of communication (leaving notes) to explain one reason for amending the stalking statute … we don’t agree with Burgandine that the amendment ‘was not intended to cover run-of-the-mill communications such as calls and texts,” the opinion states.

Further, because leaving a note on a car doesn’t require proximity to the victim, the court could not discern any legislative intent to narrow the meaning of contacts to proximity. “Rather, the legislative discussion focused on expanding the statute to cover more types of stalking conduct,” the opinion states.

The Deputy State Public Defender Jessica Sommer told Law Week that a petition for certiorari in the case is anticipated, but no other comments were available due to the pending nature of the case.

-Avery Martinez

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