State v. Johnson ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,187
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEROYALE A. JOHNSON,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; CHERYL A. RIOS, judge. Opinion filed September 18, 2020.
Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before BUSER, P.J., HILL and WARNER, JJ.
PER CURIAM: Deroyale Johnson appeals his conviction of criminal possession of a
weapon, challenging the sufficiency of the evidence proving that offense. He also argues
for the first time on appeal that K.S.A. 2019 Supp. 21-6304, which makes it illegal for a
person with a recent felony conviction to possess a firearm, violates section 4 of the
Kansas Constitution Bill of Rights. After carefully reviewing the evidence and the
arguments properly before us, we affirm Johnson's conviction.
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FACTUAL AND PROCEDURAL BACKGROUND
On October 15, 2017, two Topeka police officers pulled over a pickup truck with a
missing headlight. Before the officers pulled up behind the truck, the driver, Johnson, got
out and began walking away. Johnson eventually returned to the truck after one of the
officers, Officer Raymond Marsh, asked him to stop multiple times. When Johnson
returned, the officers handcuffed him, and Officer Marsh patted him down. Johnson was
carrying a loaded Smith & Wesson .38 caliber revolver in his back pocket. The other
officer, Officer Brady Qualls, unloaded the ammunition from the revolver.
Officer Marsh provided Johnson's information to dispatch and learned that he had
been convicted of a felony in 2014 (and thus was prohibited from carrying a firearm).
Johnson told Officer Qualls that Johnson's friend, Tina Petonquot, had asked him to take
the gun to his house for safekeeping.
The State charged Johnson with criminal possession of a weapon. At trial, the
State showed body-camera footage from the incident and introduced a redacted journal
entry documenting Johnson's 2014 felony conviction for interference with law
enforcement. Officers Marsh and Qualls described the loaded revolver found in Johnson's
pocket. But for procedural reasons, the district court excluded the actual gun found on
Johnson from being admitted into evidence.
The jury found Johnson guilty of criminal possession of a weapon. He now
appeals.
DISCUSSION
Johnson challenges the sufficiency of the evidence supporting his conviction for
criminal possession of a weapon in two respects. First, he argues that because the actual
gun found on his person was not entered into evidence, the State did not prove he
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possessed a firearm. Second, he contends the State produced no evidence of whether his
2014 felony conviction involved a firearm and thus failed to prove an element of the
crime charged. And for the first time on appeal, Johnson challenges the constitutionality
of the criminal-possession statute under section 4 of the Kansas Constitution Bill of
Rights.
For the reasons we discuss below, Johnson's claims do not prevail. The body-
camera footage and officer testimony showed the .38 caliber revolver Johnson possessed
was a firearm; the State was not required to produce the actual gun to prove criminal
possession of a weapon. And Johnson's claim regarding the elements of that offense is
not supported by Kansas statutes or caselaw. Finally, we conclude Johnson's failure to
raise his constitutional argument before the district court—particularly in light of the
Kansas Supreme Court's recent statements regarding the requirements for articulating and
presenting claims under the Kansas Constitution—precludes our review of that claim.
1. Sufficient evidence supports Johnson's conviction.
Appellate judges are not present at trial to hear witnesses' testimony, to observe
their demeanor, or to weigh that testimony against the other evidence presented at trial.
Thus, when a defendant in a criminal case challenges his or her conviction by questioning
the sufficiency of the evidence presented, appellate courts defer to the jury's factual
findings, "'reviewing all the evidence in a light most favorable to the prosecution.'" State
v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). We "'do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.'" 307 Kan. at
668. And appellate courts will not set aside a conviction for insufficient evidence when
we are "'convinced a rational factfinder could have found the defendant guilty beyond a
reasonable doubt.'" 307 Kan. at 668.
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Yet "there must be evidence supporting each element of a crime." State v. Kettler,
299 Kan. 448, 471, 325 P.3d 1075 (2014). The State bears the burden of proving each
element, but it need not rely on direct evidence to do so. Rather, a conviction of even the
gravest offense may be based entirely on circumstantial evidence. State v. Logsdon, 304
Kan. 3, 25, 371 P.3d 836 (2016).
Johnson brings two challenges to the sufficiency of the evidence underlying his
conviction for criminal possession of a weapon:
• He claims the State failed to prove that he possessed a firearm, as the State neither
produced the .38 caliber revolver as evidence nor demonstrated it was actually a
weapon—that is, that it was capable of being fired.
• He argues that the statute giving rise to his conviction only applies when a person
has committed an earlier felony without using a firearm, and the State failed to
introduce any evidence as to whether Johnson used a gun in his 2014 felony.
Having reviewed each of these claims, we conclude there was sufficient evidence
presented at trial to support Johnson's conviction.
1.1. The State presented evidence that Johnson possessed a firearm—a Smith &
Wesson .38 caliber revolver.
K.S.A. 2019 Supp. 21-6304(a) prohibits individuals convicted of a felony from
possessing a weapon—that is, a firearm or a knife. K.S.A. 2019 Supp. 21-6304(c)(2). A
"firearm" is "any weapon designed or having the capacity to propel a projectile by force
of an explosion or combustion." K.S.A. 2019 Supp. 21-5111(m). The officers testified
that Johnson was found carrying a loaded Smith & Wesson revolver. This testimony is
sufficient to support the jury's finding that Johnson had possessed a firearm within the
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meaning of K.S.A. 2019 Supp. 21-6304. See State v. Pelzer, 230 Kan. 780, 782, 640 P.2d
1261 (1982) ("Any handgun which is designed to propel a projectile is a firearm.").
Johnson argues that Kansas law required the State to prove something further—to
show that the gun the officers found could actually fire a projectile. But this assertion is
unfounded. The Kansas Supreme Court has held that the State need not make a specific
showing of a weapon's capability of firing to sustain a conviction for criminal possession
of a weapon. State v. Omo, 199 Kan. 167, 174, 428 P.2d 768 (1967), abrogated on other
grounds by State v. McCullough, 293 Kan. 970, 270 P.3d 1142 (2012). And "[e]vidence
establishing that a weapon [is] an operating instrument and capable of firing a bullet [is]
not necessary to support a conviction." State v. Boster, 4 Kan. App. 2d 355, 359, 606
P.2d 1035 (1980); see also Pelzer, 230 Kan. at 782 ("A firearm is to be determined by its
design or by its capacity to propel a projectile. . . . Any present disrepair which might
render it inoperable does not make it any less a firearm."). Nor was it necessary to call
expert witnesses regarding the revolver's design or its ability to fire. See United States v.
Jones, 907 F.2d 456, 460 (4th Cir. 1990), cert. denied 489 U.S. 1029 (1991).
And contrary to Johnson's assertion on appeal, the State was not required to enter
the gun itself into evidence. See State v. Harwick, 220 Kan. 572, 578, 552 P.2d 987(1976) ("There is no requirement that the firearm itself be produced for the jury's
inspection to support a conviction" of criminal possession of a weapon.). The officers'
testimony—which was corroborated by Petonquot's testimony that she had asked Johnson
to go "pick up a firearm" for her—was sufficient to prove this element of the crime.
1.2. K.S.A. 2019 Supp. 21-6304 does not require the State to prove whether
Johnson's 2014 felony was committed while he possessed a firearm.
Johnson's second challenge to the sufficiency of the evidence for his conviction is
more fittingly described as a question of statutory interpretation. He claims that the
statutory section that defines criminal possession of a weapon in his case—K.S.A. 2019
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Supp. 21-6304(a)(2)—only applies (1) to individuals who have been convicted of a
felony within the past five years (2) when that felony did not involve a firearm. Johnson
argues that the State presented no evidence as to whether he used a gun when committing
the crime that led to his 2014 conviction, and the State thus failed to prove this element of
the offense.
Statutory interpretation is a legal question over which we exercise unlimited
review. State v. Evans, 51 Kan. App. 2d 168, 171, 343 P.3d 122 (2015), rev. denied
August 30, 2016. In this case, our analysis begins and ends with the plain text of K.S.A.
2019 Supp. 21-6304. See State v. Keel, 302 Kan. 560, Syl. ¶ 6, 357 P.3d 251 (2015)
(when statutory language is clear, courts do not resort to other tools of statutory
construction).
K.S.A. 2019 Supp. 21-6304(a) sets forth three timeframes that might apply in
determining whether someone has criminally possessed a weapon:
• A defendant may never possess a weapon if he or she has ever been convicted of a
person felony (or a substantially identical crime to one Kansas classifies as a
person felony) and "was found to have been in possession of a firearm" when that
previous crime was committed. K.S.A. 2019 Supp. 21-6304(a)(1).
• A defendant may not possess a weapon for 10 years from a felony conviction of
one of several enumerated violent crimes (none of which apply here) or a
nonperson felony committed while the defendant was in possession of a firearm.
K.S.A. 2019 Supp. 21-6304(a)(3).
• A defendant may not possess a weapon for five years from a felony conviction for
all felonies that do not fall into one of those other categories—in other words,
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when he or she has been convicted of an otherwise unlisted felony while not in
possession of a firearm. K.S.A. 2019 Supp. 21-6304(a)(2).
As this discussion demonstrates, the prohibition against possessing a weapon in
K.S.A. 2019 Supp. 21-6304(a) applies to fewer and fewer offenses as time passes from
the date of a person's felony conviction. Anyone convicted of a felony—regardless of his
or her crime of conviction—is prohibited from possessing a weapon for five years. After
five years, this prohibition only applies to individuals who have been convicted of
felonies included in K.S.A. 2019 Supp. 21-6304(a)(1) and (3). When 10 years have
passed, the prohibition only applies to people convicted of person felonies who
committed those crimes while possessing a firearm.
Johnson was convicted in 2014 of a felony; the journal entry for that conviction
was entered into evidence. Thus, regardless of the specific felony he committed and
regardless of whether he committed that crime while possessing a firearm, he violated
K.S.A. 2017 Supp. 21-6304 when he was found carrying a revolver three years later in
2017. In other words, there was sufficient evidence to show he was a convicted felon and
fell within the reach of the statute.
Johnson nevertheless argues that because the State charged him with a violation of
K.S.A. 2019 Supp. 21-6304(a)(2), the five-year prohibition, then the State was required
to prove that his crime fell within the scope of that provision. Under his reading, the State
was required to prove (1) that Johnson had been convicted of "a felony, other than those
listed in (a)(3)(A)," within the last five years and (2) that he "was not found to have been
in possession of a firearm at the time of the commission of the crime." K.S.A. 2019 Supp.
21-6304(a)(2). But we have long rejected this argument, finding the State is not required
to prove a negative (that the crime was committed while he did not possess a gun). See
State v. Johnson, 25 Kan. App. 2d 105, 108, 959 P.2d 476, rev. denied 265 Kan. 888(1998). And Johnson's argument would require us to read subsection (a)(2) in isolation,
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removing it from its context—which we will not do. See State v. Smith, 311 Kan. 109,
114, 456 P.3d 1004 (2020) (courts must read the provisions of a statute in pari materia
and in a manner to avoid unreasonable or absurd results).
It is true, as Johnson points out, that the jury was instructed using language from
K.S.A. 2019 Supp. 21-6304(a)(2) stating the State was required to prove that Johnson
"was not found to be in possession of a firearm at the time of the prior crime." But this
instruction was not an accurate statement of Kansas law or the State's burden of proof.
When a legally superfluous instruction is given without objection—as was the case
here—the defendant must show clear error. See In re Care & Treatment of Thomas, 301
Kan. 841, 849, 348 P.3d 576 (2015); see also State v. Bailey, 292 Kan. 449, 459, 255
P.3d 19 (2011) (including "superfluous language" in an instruction is harmless when
there was overwhelming evidence of the defendant's guilt). This means "'the defendant
must firmly convince the appellate court that the giving of the instruction would have
made a difference in the verdict.'" State v. Cooper, 303 Kan. 764, 771, 366 P.3d 232(2016). Johnson has not made this showing.
Johnson was found in possession of a (loaded) revolver three years after his
conviction for a felony. There was sufficient evidence presented to the jury to support his
conviction of criminal possession of a weapon.
2. We do not reach the merits of Johnson's constitutional argument, which was not
raised or developed below and does not lay the requisite foundation for a claim
under the Kansas Constitution.
Johnson also argues that even if the evidence was sufficient to convict him of
criminal possession of a weapon, we should nevertheless reverse that conviction on a
constitutional basis. In particular, he argues that K.S.A. 2019 Supp. 21-6304 violates
section 4 of the Kansas Constitution Bill of Rights, which states in relevant part: "A
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person has the right to keep and bear arms for the defense of self, family, home and state,
for lawful hunting and recreational use, and for any other lawful purpose."
In his brief on appeal, Johnson acknowledges that he did not raise this
constitutional argument—either as a facial challenge or as the statute applies to him—
before the district court. "Generally, constitutional claims cannot be raised for the first
time on appeal." State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). Thus, Johnson
can only bring his claim if he demonstrates it "involves only a question of law arising on
proved or admitted facts" or that consideration of his claim "is necessary to preserve the
ends of justice or to prevent the denial of fundamental rights." State v. Perkins, 310 Kan.
764, Syl. ¶ 2, 449 P.3d 756 (2019). Although Johnson argues that both exceptions apply,
we disagree and find that his claim is not properly before us.
In discussing the first exception to our preservation requirement, Johnson asserts
that the interpretation of section 4 of the Kansas Constitution Bill of Rights and the
constitutionality of K.S.A. 2019 Supp. 21-6304 are both questions of law. And he asserts
that because the facts relevant to his conviction were decided by trial, there are no
additional facts that need to be developed. Thus, he argues, we may reach the merits of
his constitutional claim, which will lead to either upholding or reversing his conviction
based on the constitutional stature of the challenged statute.
But constitutional questions do not always involve purely legal determinations.
Though the ultimate decision as to whether a law infringes some constitutional provision
is a question of law, constitutional questions—especially novel claims that have not been
before considered—often involve considerable factual development and require the
determination of multiple legal questions along the way. To decide the merits of
Johnson's constitutional claim, this court would need to determine—at a minimum—
whether section 4 provides coextensive protection to the Second Amendment to the
United States Constitution. This is particularly important here because in District of
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Columbia v. Heller, 554 U.S. 570, 626, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), the
Supreme Court's seminal decision on the scope of the Second Amendment, the Court
emphasized that the Second Amendment does not prohibit restrictions on felons'
possession of firearms. See 554 U.S. at 626 ("nothing in our opinion should be taken to
cast doubt on longstanding prohibitions on the possession of firearms by felons").
For claims brought under the Kansas Constitution, the Kansas Supreme Court has
indicated that anyone advocating a different reading of a Kansas constitutional provision
from its federal counterpart must "explain why [Kansas courts] should depart from [their]
long history of coextensive analysis of rights under the two constitutions." State v.
Boysaw, 309 Kan. 526, 538, 439 P.3d 909 (2019). Thus, Johnson must articulate
something in "the history of the Kansas Constitution or in our caselaw that would suggest
a different analytic framework" should apply to distinguish section 4 from the Second
Amendment. 309 Kan. at 536.
Johnson's brief points to textual differences in the federal and state charters and
the fact that section 4 was amended in 2010. But textual differences in and of themselves
are not sufficient to evince a difference in constitutional meaning. See 309 Kan. at 536-38
(rejecting the argument that sections 10 and 18 of the Kansas Constitution Bill of Rights
provide greater protection than the federal Due Process Clause, despite marked textual
differences between them). And Johnson provides no reason why the 2010 amendment to
the Kansas Constitution, adopted less than two years after Heller held that the Second
Amendment conferred an individual right to bear arms, aimed to provide different
protections than existing federal law. See Heller, 554 U.S. at 595. Our analysis of such a
question would require historical development not found in the record before us.
Nor does Johnson provide any factual, historical, or legal reason why Kansans
intended the protections of the Kansas Constitution to apply more broadly to persons
convicted of felonies than the United States Constitution does. Indeed, section 4's
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language recognizing an individual right to bear arms for "any . . . lawful purpose"
appears to cut against Johnson's broad reading. In short, the first exception under Perkins
does not tip in favor of wading into these arguments without additional factual, historical,
and legal development.
Turning to the second exception, Johnson argues that the right to bear arms under
section 4 is a "fundamental right" and therefore "reviewable at any time." But the fact
that an argument is based on a right contemplated by the federal or state Bill of Rights
does not mean, as a matter of course, that it need not be raised before the district court.
Indeed, courts often decline to review constitutional arguments because those arguments
were not raised or preserved below. See Daniel, 307 Kan. at 430 (declining to review
unpreserved challenge under the Ex Post Facto Clause to offender registration statutes);
State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015) (declining to review
unpreserved due-process claims to a plea agreement); see also State v. King, 288 Kan.
333, 204 P.3d 585 (2009) (declining to consider an alleged violation of the defendant's
Fifth Amendment rights when there had been no contemporaneous objection to the
potentially infringing testimony). For Perkins' second exception to apply, Johnson must
demonstrate that his conviction for criminal possession of a weapon "offend[s] [some]
principle of justice so rooted in the traditions and conscience of the people of this state
that it may be deemed fundamental." Boysaw, 309 Kan. at 536. He has not done so.
Of course, even if an exception would support a decision to review a new claim on
appeal, we have no obligation to do so. State v. Parry, 305 Kan. 1189, 1192, 390 P.3d
879 (2017). But under these circumstances, we conclude that Johnson has failed to show
that either exception justifies our review of this constitutional issue. Accordingly, we
invoke the general rule that constitutional issues may not be raised for the first time on
appeal and decline review. See Daniel, 307 Kan. at 430.
Affirmed.
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