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People v. Plemmons.

2021 COA 10. No. 18CA0481. Criminal Law—Constitutional Law—Due Process—Vagueness—Second Degree Assault—Exclusionary Rule.

February 4, 2021

Two deputies went to defendant’s home to conduct a welfare check. When the deputies entered the house, defendant, who was visibly drunk, berated them and spat in both of their faces. Defendant also spat on one deputy again while being transported in the patrol car to a medical center. Defendant was charged with two counts of second degree assault under CRS §18-3-203(1)(h) for the spitting incidents inside the house and one count of second degree assault under CRS §18-3-203(1)(f.5) for spitting in the patrol car. Before trial, defendant filed a motion to suppress the statements and evidence the police acquired when they entered her home without a warrant. The trial court denied the motion without an evidentiary hearing. Defendant was found guilty of all counts.

On appeal, defendant contended that her two convictions under CRS § 18-3-203(1)(h) should be reversed because the statute is unconstitutionally vague, both facially and as applied to her. Under § 18-3-203(1)(h), a person commits second degree assault by spitting on a peace officer with “intent to infect, injure, or harm.” Colorado law clearly proscribes intentionally spitting in a police officer’s face with malign intent, so defendant’s as-applied challenge failed. Further, while the term “harm” is ambiguous and could be broadly construed, the trial court sufficiently narrowed the statute, consistent with legislative intent, to apply to a person who exposes an officer to bodily fluids with the intent to cause psychological or emotional harm. Absent uncertainty about the statute’s scope, CRS § 18-3-203(1)(h) is not likely to invite arbitrary or discriminatory enforcement and is thus not unconstitutionally vague on its face.

Defendant also contended that the evidence was insufficient to prove beyond a reasonable doubt that she intended to harm the deputies by spitting in their faces while still inside the house. However, defendant admittedly intentionally spat at both deputies multiple times during the encounter and conceded that she yelled at them and used demeaning language. Accordingly, sufficient evidence supported the convictions under CRS § 18-3-203(1)(h).

Defendant also argued that all of her convictions should be reversed because the trial court erroneously instructed the jury on the definition of “harm.” However, the instruction was not erroneous in any respect.

Lastly, defendant argued that the court erred by not holding an evidentiary hearing on her motion to suppress. Whether or not the deputies entered the house lawfully, it was uncontested that defendant committed a new criminal act after officers were inside. Therefore, a fact-intensive hearing was unnecessary. The trial court correctly decided that the criminal act was sufficiently attenuated from any unlawful entry to render the exclusionary rule inapplicable.

The judgment was affirmed.


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