dissenting in part:
I dissent from Part IIIB of the court’s opinion, which holds that the defendant lacks standing to challenge the statutory proscription against selling securities without a license as unconstitutionally vague.
The defendant raises two constitutional challenges to the crime of selling securities without a license as proscribed by section 11-51-104, 4 C.R.S. (1973). He contends that the statute suffers from unconstitutional overbreadth and that the statutory definition of “security” is unconstitutionally vague. I agree with the majority that the defendant lacks standing to challenge the statute as unconstitutionally overbroad. “The overbreadth doctrine prevents the state from regulating conduct by encroaching on basic constitutional rights, such as speech and assembly, which may be within the sweep of the statutory prohibition.” People v. Andrews, 632 P.2d 1012, 1016 (Colo.1981). See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); People v. Mason, 642 P.2d 8 (Colo.1982); People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979). The defendant in this case made no showing that his speech or other basic constitutional rights were threatened by the application of the statute to his conduct. For this reason I see no basis to accord the defendant standing to challenge the statute as unconstitutionally overbroad.
I do believe, however, that the defendant does have standing to challenge the statute as unconstitutionally vague. A person whose activity may be constitutionally regulated nevertheless may argue that the statute under which he is prosecuted is invalid on its face. New York v. Berber, 458 U.S. 747 n.21, 102 S.Ct. 3348, 3360 n. 21, 73 L.Ed.2d 1113 (1982). We addressed the issue of standing to challenge a statute as unconstitutionally vague in People in the Interest of C.M., 630 P.2d 593, 594 (Colo.1981), and there stated:
Generally, one is not entitled to assail the constitutionality of a statute except as he is adversely affected by its application to him in a given case. E.g. People v. Wimer, 197 Colo. 191, 591 P.2d 87 (1979); People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975). Where, however, as here, the constitutional challenge is to those very statutory terms which constitute the basis of the underlying prosecution, requisite standing exists. See, e.g., L.D.S., Inc. v. Healy, 197 Colo. 19, 589 P.2d 490 (1979); People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972). Neither a detailed charging document nor a fully developed factual record can serve to validate a law which on its face is so vague as to violate due process of law. E.g., Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890 (1939).
Although I would accord the defendant standing to challenge the definition of a security as unconstitutionally vague, I nonetheless would reject his claim. The controlling consideration in a void-for-vagueness challenge is “whether the questioned law ‘either forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily *839guess as to its meaning and differ as to its application People ex rel. City of Arvada v. Nissen, 650 P.2d 547, 550 (Colo.1982), quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). The rules applicable to a void-for-vagueness challenge are well settled. A statute is presumed to be constitutional in the first instance, and the burden falls upon the party attacking the statute to establish its unconstitutionality beyond a reasonable doubt. E.g., People v. Alexander, 663 P.2d 1024 (Colo.1983). Also, if the challenged statute is susceptible of different constructions, one of which satisfies constitutional requirements, the constitutional construction must be adopted. Alexander, 663 P.2d 1024; Nissen, 650 P.2d 547; People v. Smith, 638 P.2d 1 (Colo.1981). Finally, while a statute must be sufficiently specific to give fair warning of the proscribed conduct, due process of law has never required mathematical exactitude in legislative draftsmanship. Alexander, 663 P.2d at 1027; Nissen, 650 P.2d at 550.
Section 11-51-102(12), 4 C.R.S. (1973), defines “security,” as pertinent here, to include a “note,” “evidence of indebtedness,” and a “certificate of interest or participation in any profit-sharing agreement.” The essential attribute of a security, as the majority notes, is “the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.” United Housing Foundation v. Forman, 421 U.S. 837, 852, 95 S.Ct. 2051, 2060, 44 L.Ed.2d 621 (1975). The fact that there might be some difficulty in applying this test to certain investment transactions does not render the statute constitutionally void. “Such difficulty ... is frequently present in cases involving the application of a legislative standard to close questions of fact and, by itself, does not amount to a constitutional infirmity.” Nissen, 650 P.2d at 552. In short, the statutory definition of a security is sufficiently specific to withstand the defendant’s vagueness challenge.
I am authorized to say that Justice LOHR and Justice NEIGHBORS join in this dissent.