Colorado’s legislature intended for “contacts” to include text messages and phone calls in its criminalization of stalking, the Court of Appeals ruled on Thursday.

On an afternoon in October 2015, James Edward Burgandine called and texted his ex-girlfriend for seven hours, harassing her with such misogynistic terms as “whore” and “skank.” Some of the messages contained threats of violence against her and the police.

Jefferson County prosecutors charged Burgandine with harassment and credible threat stalking. A jury convicted him of those charges, and Burgandine received three years of probation, with 90 days in jail.

Under Colorado law, credible threat stalking entails threatening another person through surveilling, approaching or contacting them, or by using “any form of communication” with a person to threaten them. The prosecution argued that Burgandine’s calls and text messages were “contacts,” although the statute did not define what those are.

“I don’t think anybody really disputes that repeated text messages are communications. Why would a prosecutor choose to charge this as contacts rather than communications?” asked Judge Rebecca R. Freyre at oral argument.

The attorney general’s office, which handled the appeal, did not respond directly, saying it was the discretion of the district attorney’s office which section of the statute to prosecute under.

Referring to the dictionary, the appellate panel nevertheless understood contact to mean communication.

“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,” wrote Judge Stephanie Dunn for the three-member panel.

However, Burgandine argued that if contacts were communications, that would render the second part of the statute redundant. Instead, the General Assembly had to intend contacts to be narrower, requiring physical closeness.

“The concern is things that have physical proximity to the meeting,” said Burgandine’s lawyer, Jessica Sommer, to the appeals panel during oral argument. “Some sort of meeting or an attempt to meet. Maybe it’s repeatedly going to the person’s place of business or not approaching them but making your presence known to the person.”

“Are there any communications that would not also fall within contacts?” Dunn asked the attorney general’s office.

“Quite frankly, I could not think of an actual communication that wouldn’t also qualify as a contact,” Marixa Frias responded. 

The panel rejected Burgandine’s argument about the legal provision, noting that while “approaching” someone implied proximity, “surveilling” them did not necessarily follow suit. Furthermore, in studying the 1999 legislative session when the law changed, the court learned that the approach-contact-surveil framework had no connection to how close a stalker was to his victim.

“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,” Dunn explained. “Nor does he explain how prosecutors or courts would apply such an amorphous requirement.”

Sommer took issue with the suggestion that there should be no attempt to define what acts would be against the law if, in fact, contacts were limited in nature. “I think coming up with a definition is what this court’s job is,” she argued.

The case is People v. Burgandine.