People in re L.C , 2017 COA 82 ( 2017 )

COLORADO COURT OF APPEALS 2017COA82
Court of Appeals No. 15CA1240
El Paso County District Court No. 14JD739
Honorable G. David Miller, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of L.C.,
Juvenile-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE VOGT*
Terry and Richman, JJ., concur
Announced June 15, 2017
Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Ryann S. Hardman,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 L.C., a juvenile, appeals the district court judgment
adjudicating him a delinquent based on his commission of acts
that, if committed by an adult, would constitute the offenses of
unlawfully carrying a concealed weapon and violating a protection
order. L.C. challenges the constitutionality of the concealed weapon
statute and of the protection order, and he contends that the
evidence was insufficient to establish that he committed the
charged offenses. We are unpersuaded by his contentions and
therefore affirm the judgment.
I. Background
¶2 In September 2014, a police officer observed L.C. in a public
park after hours. The officer contacted L.C., obtained his name and
date of birth, and discovered that L.C. was subject to a protection
order. That protection order, entered against L.C. in an unrelated
case in 2013, provided, among other things, that L.C. was not to
“possess or control a firearm or other weapon.”
¶3 The officer then asked to search the backpack that L.C. was
carrying. L.C. began pulling objects out of the backpack, but
avoided one compartment. When the officer looked in that
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compartment, he found a knife with a five and one-half inch blade
inside a sheath.
¶4 L.C. was arrested. The People filed a petition in delinquency,
charging L.C. with violation of a protection order, unlawfully
carrying a concealed weapon, and trespass. After a bench trial, the
magistrate found L.C. not guilty of trespass but guilty of the other
two offenses. He adjudicated L.C. delinquent and sentenced him to
probation. L.C. petitioned for district court review, arguing that the
concealed weapon statute was void for vagueness and that the
original protection order was invalid. The district court denied the
petition in a written order, and this appeal followed.
II. Concealed Weapon Offense
¶5 L.C. contends that section 18-12-105, C.R.S. 2016, which
defines the offense of unlawfully carrying a concealed weapon, is
unconstitutionally vague and overbroad. We conclude that the
statute is not unconstitutionally vague, and we do not reach the
merits of his overbreadth argument because he did not raise it in
the district court.
¶6 Whether a statute is constitutional is an issue that we review
de novo. Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo.
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2007). Statutes are presumed to be constitutional, and a party
challenging a statute’s constitutionality has the burden of showing
that the statute is unconstitutional beyond a reasonable doubt.
People v. Mojica-Simental, 73 P.3d 15, 18 (Colo. 2003). If there is
more than one possible interpretation of the statute, we must adopt
the constitutional construction. Id.
A. Vagueness
1. General Legal Principles
¶7 To comport with the requirements of due process under the
United States and Colorado Constitutions, statutes must define
criminal offenses “with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement.”
Kolender v. Lawson, 461 U.S. 352, 357 (1983); accord People v.
Stotz, 2016 COA 16, ¶ 25. A statute is unconstitutionally vague if it
“forbids or requires the doing of an act in terms so vague that
persons of ordinary intelligence must necessarily guess as to its
meaning and differ as to its application.” People v. Gross, 830 P.2d
933, 937 (Colo. 1992) (quoting People v. Becker, 759 P.2d 26, 31
(Colo. 1988)).
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¶8 The requirement that a statute be reasonably definite serves
two important purposes: (1) it provides fair warning of proscribed
conduct, so that persons may guide their actions accordingly; and
(2) it ensures that statutory standards are sufficiently specific so
that police officers and other actors in the criminal justice system
can avoid arbitrary and discriminatory application. Id.
¶9 In assessing whether a statute is reasonably definite, we give
words and phrases used in the statute their generally accepted
meanings. People v. Janousek, 871 P.2d 1189, 1196 (Colo. 1994).
A statute may be sufficiently definite even if it does not contain
precise definitions of every word or phrase constituting an element
of the offense. People v. Schoondermark, 699 P.2d 411, 416 (Colo.
1985).
¶ 10 A statute may be challenged as unconstitutionally vague either
on its face or as applied to particular conduct. Stotz, ¶ 27. To
establish that a statute is vague on its face, the party challenging it
must show that the statute is “incomprehensible in all of its
applications.” People v. Shell, 148 P.3d 162, 172 (Colo. 2006). But
see Johnson v. United States, 576 U.S. __, __, 135 S. Ct. 2551,
2560-61 (2015) (“[A]lthough statements in some of our opinions
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could be read to suggest otherwise, our holdings squarely contradict
the theory that a vague provision is constitutional merely because
there is some conduct that clearly falls within the provision’s
grasp.”). To prevail on an as-applied challenge, it must be shown
that the statute does not, with sufficient clarity, prohibit the
conduct against which it is enforced. Shell, 148 P.3d at 172; Stotz,
¶ 27.
2. L.C.’s Challenge
¶ 11 L.C. was found guilty of violating section 18-12-105(1)(a),
which states: “A person commits a class 2 misdemeanor if such
person knowingly and unlawfully . . . [c]arries a knife concealed on
or about his or her person.” As used in section 18-12-105(1)(a),
“knife” means “any dagger, dirk, knife, or stiletto with a blade over
three and one-half inches in length, or any other dangerous
instrument capable of inflicting cutting, stabbing, or tearing
wounds, but does not include a hunting or fishing knife carried for
sports use.” § 18-12-101(1)(f), C.R.S. 2016.
¶ 12 L.C. contends that section 18-12-105 is unconstitutionally
vague on its face because, when read together with the statutory
definition of “knife,” it criminalizes the concealed possession on or
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about one’s person of any knife with a blade of over three and
one-half inches (except for hunting and fishing knives carried for
sports use), regardless of whether the knife is intended to be used
as a weapon. L.C. cites examples of types of cutlery, yard tools, and
collectibles that would fall within the statutory definition of knife.
He also cites testimony from the arresting officer, who agreed on
cross-examination that a shopper carrying a butcher knife out of a
Target store in a shopping bag would “by definition” be breaking the
law, but would not be arrested because “[w]e have discretion.”
Thus, L.C. argues, the statute does not give people fair notice of
what conduct is prohibited, and it invites arbitrary enforcement.
¶ 13 We disagree. L.C.’s argument overlooks the fact that, for the
statute to apply, the person carrying the knife must be doing so
“unlawfully.” See People v. Iversen, 2013 COA 40, ¶ 23
(“[U]nlawfully” is not a term of mental culpability but means simply
“in violation of [a certain] law.”). L.C. was carrying the concealed
knife in his backpack unlawfully because he was doing so in
violation of a court order. In contrast, his hypothetical Target
shopper, not subject to such an order, was not carrying the
concealed knife unlawfully and thus was not violating the concealed
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weapon statute. Persons of ordinary intelligence would not have to
guess as to the applicability of the statute to their own act of
carrying a knife, see Gross, 830 P.2d at 937, and, regardless of the
officer’s subjective interpretation here, we perceive no basis for
concluding that the statute invites arbitrary or discriminatory
enforcement. Id.
¶ 14 Finally, we are not persuaded by L.C.’s argument that the
statute is nevertheless vague because it lacks a specific intent
requirement. L.C. relies on A.P.E. v. People, 20 P.3d 1179, 1183-86
(Colo. 2001), in which the supreme court held that, to give effect to
the legislature’s exclusion of short knives from the statutory
definition in section 18-12-101(1)(f), carrying a concealed knife with
a blade of less than three and one-half inches would not support a
conviction for violating the concealed weapon statute unless the
prosecution proved that the defendant intended to use the knife as
a weapon. He also cites Gross, in which the supreme court rejected
a vagueness challenge to the statutory definition of “knife” brought
by a defendant who had threatened a police officer with a
screwdriver and was subsequently convicted of possession of a
weapon by a previous offender, in violation of section 18-12-108,
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C.R.S. 2016. 830 P.2d at 937-38. In that case, in support of its
conclusion that there was no constitutional infirmity in reading the
section 18-12-101(1)(f) definition to include a screwdriver, the court
noted that section 18-12-108 had previously been construed to
include, as an element, that the defendant intended to use the
instrument at issue as a weapon. Id. at 940.
¶ 15 We do not read either A.P.E. or Gross as requiring a finding of
specific intent where, as here, the instrument at issue — a knife
with a five and one-half inch blade — is clearly within the statutory
definition of knife. See id. at 938. In such circumstances, the
statutory requirement that the person be concealing the knife
knowingly and “unlawfully” saves section 18-12-105 from being
unconstitutionally vague, even without a specific intent
requirement.
B. Overbreadth
¶ 16 L.C. also argues that section 18-12-105 is unconstitutionally
overbroad, both facially and as applied to his conduct, because it
prohibits activities that cannot reasonably be characterized as
unlawful and invades his right under article II, section 13 of the
Colorado Constitution to bear arms in defense of his home, person,
8
and property. See Gross, 830 P.2d at 939 (statute is overbroad if it
prohibits legitimate activity or encompasses protected rights within
its prohibition). Because L.C. makes this argument for the first
time on appeal, we decline to address its merits.
¶ 17 Appellate courts generally decline to address unpreserved
as-applied challenges to the constitutionality of a statute because of
the lack of a developed record. See People v. Patrick, 772 P.2d 98,
100 (Colo. 1989) (“It is imperative that there be some factual record
made by the trial court which states why the evidence . . . causes
the statute to be unconstitutional as applied.”); People v. Mountjoy,
2016 COA 86, ¶ 36; People v. Torres, 224 P.3d 268, 273 (Colo. App.
2009); People v. Veren, 140 P.3d 131, 140 (Colo. App. 2005); cf.
People v. Allman, 2012 COA 212, ¶ 16 (reviewing merits of
unpreserved as-applied vagueness challenge where record was
sufficiently developed to permit review of claim).
¶ 18 Here, L.C. cites brief testimony by the arresting officer about
L.C.’s conversation with his father after the arrest (“[L.C.] also made
the statement that – I don’t remember the exact words – but
something to the effect of you don’t understand what it is when you
get in with these people or something of that nature.”), and he
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argues on appeal that the statement “suggests that he was carrying
the knife only for defensive purposes.” However, apart from that
single ambiguous sentence, there is no evidence whatsoever in the
record regarding L.C.’s reason for carrying the knife, and neither
the magistrate nor the district court made any factual findings on
the issue. In these circumstances, the record is insufficient to
permit appellate review of L.C.’s as-applied overbreadth challenge.
¶ 19 As for his facial overbreadth challenge, we note that the
supreme court and divisions of this court have exercised their
discretion to review unpreserved facial challenges to a statute’s
constitutionality, but “only where doing so would clearly further
judicial economy.” People v. Houser, 2013 COA 11, ¶ 35 (collecting
cases); see Hinojos-Mendoza, 169 P.3d at 667 (exercising discretion
to review unpreserved facial challenge in light of newly announced
United States Supreme Court precedent, where doing so would
“promote efficiency and judicial economy”). Here, L.C. does not
explain, nor do we discern, how our addressing his facial challenge
could promote judicial economy, and we are unaware of any
recently announced relevant precedent or any other basis for
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suggesting that his overbreadth argument could not have been
raised earlier.
¶ 20 Moreover, even if we were to conclude that the unpreserved
facial overbreadth challenge was reviewable for plain error, see
Reyna-Abarca v. People, 2017 CO 15, ¶ 47, we would find no plain
error. There was no case law or other authority that should have
led the trial court sua sponte to find the statute unconstitutionally
overbroad. See People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (for
plain error to apply, error must have been “obvious”); see also Colo.
Const. art. II, § 13 (“[N]othing herein contained shall be construed
to justify the practice of carrying concealed weapons.”).
C. Sufficiency of the Evidence
¶ 21 In addition to his constitutional challenges, L.C. contends —
again, for the first time on appeal — that the evidence was
insufficient to prove that he carried a concealed knife “on or about
his . . . person,” as required to sustain a conviction for violating
section 18-12-105(1)(a). We disagree.
¶ 22 Due process requires that a conviction be supported by proof
beyond a reasonable doubt of every element of the offense. See In re
Winship, 397 U.S. 358, 364 (1970); Vega v. People, 893 P.2d 107,
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111 (Colo. 1995). This requirement is met if the evidence, viewed as
a whole and in the light most favorable to the prosecution, is
substantial and sufficient to support the defendant’s guilt beyond a
reasonable doubt. See Dempsey v. People, 117 P.3d 800, 807 (Colo.
2005); People in Interest of T.B., 2016 COA 151M, ¶ 19.
¶ 23 Divisions of this court have disagreed on the standard of
review of unpreserved sufficiency of the evidence claims. See T.B.,
¶¶ 16-19 (discussing cases). We need not decide which standard to
apply because we conclude that the evidence was sufficient under
any standard.
¶ 24 Where a challenge to the sufficiency of evidence requires that a
statute be interpreted, the statute must be interpreted to effectuate
the General Assembly’s intent. People v. Griego, 2015 COA 31, ¶ 27
(cert. granted Dec. 7, 2015). To discern that intent, we give
common words and phrases their ordinary meanings. Id. Clear
and unambiguous statutory language will be applied as written. Id.
¶ 25 L.C. does not dispute that a knife within the section 18-12-
101(1)(f) definition was found concealed in the backpack he was
carrying. He argues, however, that because his knife was in a
sheath in an interior zippered compartment of the backpack, it was
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not readily accessible and thus was not “on or about” his person.
In support of his interpretation of the statutory requirement, L.C.
relies on People in Interest of R.J.A., 38 Colo. App. 346, 349, 556
P.2d 491, 493 (1976), in which a juvenile sitting in his car with a
gun tucked under his seat was held to be carrying the gun on or
about his person for purposes of section 18-12-105. In so holding,
the division cited cases from other jurisdictions defining “about the
person” as “sufficiently close to the person to be readily accessible
for immediate use.” Id.
¶ 26 In considering L.C.’s argument, we first note that section
18-12-105 applies to concealed knives or other weapons carried,
not just “on” the person, but “on or about” the person. “About”
means “reasonably close to.” Merriam-Webster Collegiate
Dictionary 4 (11th ed. 2004). Thus, by its plain meaning, “about”
necessarily enlarges the area in which a weapon may be concealed,
encompassing a space close to, even if not directly on, the person.
See Brown v. United States, 30 F.2d 474, 475 (D.C. Cir. 1929) (The
word “about” is a comprehensive term; and by using “about” rather
than simply “on” the person, the statute was intended to reach
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weapons “concealed in such proximity to the person as to be
convenient of access and within reach.”).
¶ 27 Courts in other jurisdictions have held that weapons carried in
purses, briefcases, or backpacks were being carried “on or about”
(or even, depending on the wording of the applicable statute, “on”)
the person. See, e.g., De Nardo v. State, 819 P.2d 903, 905-06
(Alaska Ct. App. 1991) (collecting cases); People v. Wade, 369 P.3d
546, 548-50 (Cal. 2016) (holding that a person who carried a gun in
his backpack carried the gun “on” his person, and also observing
that “the phrase ‘on or about’ is broader than ‘on,’ and certainly a
firearm in a backpack the person is wearing is on or about the
person”); State in Interest of R.P., 150 So. 3d 76, 79 (La. Ct. App.
2014) (evidence that juvenile had handgun concealed in the
backpack he was wearing was sufficient to satisfy statutory
requirement that gun be “on his person”).
¶ 28 Moreover, even if we assume that, as the R.J.A. division held, a
weapon not carried directly on the person must be “readily
accessible for immediate use,” 38 Colo. App. at 349, 556 P.2d at
493, we conclude that the evidence, viewed under the standards set
forth above, was sufficient to establish that it was. Although L.C.
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asserts that he would necessarily have had to “shuffle through” the
contents of the backpack to get to the knife, the fact that he avoided
the compartment containing the knife when the officer confronted
him suggests that he knew immediately where the knife was. See
also State v. Molins, 424 So. 2d 29, 30 (Fla. Dist. Ct. App. 1982)
(rejecting argument that firearm inside a zippered gun bag, which
was itself inside a larger zippered canvas bag carried by defendant,
was too inaccessible to be “on or about” defendant’s person for
purposes of concealed weapon statute).
III. Protection Order Violation
¶ 29 L.C. contends that the provision of his protection order stating
that he was not to “possess or control a firearm or other weapon”
was unconstitutionally vague and overbroad. He also asserts that,
because the prosecution failed to prove that he did anything
directed at the protected person named in that order, the evidence
was insufficient to establish that he violated it. We decline to
address the first argument and we reject the second.
A. Constitutionality of Protection Order
¶ 30 For the first time on appeal, L.C. argues that the no-weapon
provision of the protection order was unconstitutionally vague and
15
overbroad because, by failing to define “weapon,” it did not give him
fair notice of what conduct was prohibited, and it violated his
constitutional right to possess weapons for defending his home,
person, or property. Applying the principles discussed above
regarding unpreserved constitutional arguments, we do not reach
the merits of L.C.’s constitutional contentions.
¶ 31 The protection order was entered in an unrelated case. Other
than a copy of the order itself, there is no information about that
case in the record before us. Thus, we have no way of knowing why
the no-weapons provision was included in the order or whether the
meaning or purpose of the provision was explained to L.C. Further,
neither the magistrate nor the district court in this case made any
findings about L.C.’s understanding of the protection order or about
why L.C. was carrying the knife. Under these circumstances,
addressing the merits of L.C.’s challenges to the no-weapon
provision of the protection order would be an exercise in
speculation that we decline to undertake.
B. Evidence of Protection Order Violation
¶ 32 The 2013 protection order that L.C. was found to have violated
is set forth on a one-page printed form that identifies L.C. as the
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juvenile and A.H. as the protected person. It states, as relevant
here, that “the [j]uvenile constitutes a credible threat to the life and
health of the protected person.” The form lists six conditions with
which the juvenile may be ordered to comply. Three of the six are
checked, including the condition ordering that the juvenile shall not
“[h]arass, molest, intimidate, retaliate against, or tamper with” the
protected person and the condition that the juvenile “[s]hall not
possess or control a firearm or other weapon.”
¶ 33 L.C. argued in the district court, as he does on appeal, that he
could not be convicted of violating the protection order because,
although he had a knife, he did not do anything directed at A.H.,
the person protected by the order. The magistrate and the district
court rejected his argument, as do we.
¶ 34 Although characterized as a sufficiency of the evidence issue,
L.C.’s argument also involves construction of the criminal statute
defining the offense. We review his contention de novo, applying
the standards articulated in Part II.C, supra.
¶ 35 Under section 18-6-803.5(1)(a), C.R.S. 2016, a person commits
the crime of violation of a protection order if, after having been
17
personally served with, or otherwise knowing the contents of, the
order, the person
[c]ontacts, harasses, injures, intimidates,
molests, threatens, or touches the protected
person . . . identified in the protection order or
enters or remains on premises or comes within
a specified distance of the protected person . . .
or violates any other provision of the protection
order to protect the protected person from
imminent danger to life or health, and such
conduct is prohibited by the protection order.
¶ 36 L.C. does not dispute that he knew of the protection order and
that he possessed a knife. Instead, he argues that because there
was no evidence that his possession of the knife was intended to
harm A.H., the protected party, there was insufficient evidence to
establish that he committed the offense described in section 18-6-
803.5. The statute, L.C. contends, “requires proof that the conduct
was prohibited and that it was intended to cause imminent danger
to the life or health of AH.”
¶ 37 We disagree with L.C.’s interpretation of the statute. By using
the disjunctive “or” in section 18-6-803.5(1)(a) (“contacts . . . the
protected person . . . or violates any other provision of the
protection order to protect the protected person from imminent
danger to life or health”), the General Assembly intended to describe
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alternative ways of committing the offense of violation of a
protective order. See Quintano v. People, 105 P.3d 585, 591 (Colo.
2005) (use of disjunctive “or” specifies alternative means of
committing the crime). Thus, violation of a protective order does
not in every instance require proof that the accused contacted the
protected person. Rather, a person may also commit the offense by
“violat[ing] any other provision of the protection order to protect the
protected person from imminent danger to life or health.” § 18-6-
803.5(1)(a). Put another way, while the provision has to have been
intended to protect the protected person, there is no additional
requirement that the offender’s violation of the provision was itself
“intended to cause imminent danger to the life or health” of the
protected person, as L.C. argues.
¶ 38 While we have no record that could shed light on the original
magistrate’s reasons for checking the “no-weapons” condition, we
agree with the district court in this case that the restriction on
carrying a weapon was “certainly rationally and reasonably related”
to the goal of protecting A.H. from any further threat by L.C. to his
life or health. Thus, evidence that the protection order contained a
provision prohibiting L.C. from possessing a weapon and that L.C.
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was found in possession of a weapon was sufficient to sustain his
conviction for violation of a protection order.
IV. Conclusion
¶ 39 The judgment is affirmed.
JUDGE TERRY and JUDGE RICHMAN concur.
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