APE v. People, No. 99SC392.

• Decision Date: 26 March 2001
• Docket Number: No. 99SC392.
• Citation: 20 P.3d 1179
• Parties: A.P.E., a Juvenile, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

20 P.3d 1179

A.P.E., a Juvenile, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 99SC392.

Supreme Court of Colorado, En Banc.

March 26, 2001.

David Kaplan, Colorado State Public Defender, Daniel Gil Katz, Deputy State Public Defender, Golden, CO, Attorneys for Petitioner.

Ken Salazar, Attorney General, Robert Mark Russel, Assistant Solicitor General, Appellate Division, Criminal Justice Section, Jane G. Ebisch, Special Assistant Attorney General, Appellate Division, Denver, CO, Attorneys for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

In this case we consider the application of the concealed weapons statute to a person carrying a knife with a blade less than three and one-half inches in length. The blade length is important because the concealed weapons statute distinguishes on that basis. A knife with a longer blade is defined as a weapon but a knife with a shorter blade is a weapon only if it comes within the catchall definition of the statute.

We conclude that, to sustain a conviction under the concealed weapons statute in a case involving a knife with a blade less than three and one-half inches long, the prosecution must prove that the defendant used or intended to use the knife as a weapon. This determination of intent must be based on all the relevant circumstances including the defendant's words and actions as well as the characteristics of the knife. Because neither the trial court nor the court of appeals made a determination of intent based on all the relevant circumstances, the defendant is entitled to a new trial on his concealed weapon charge.

I.

This case was tried to the court and only two witnesses testified at trial. The arresting officer testified for the prosecution, and an expert on knives testified for the defense. The evidence showed that on the afternoon of May 24, 1997, a police officer on regular patrol observed the defendant, A.P.E., a fourteen year old boy, and a companion beside a busy street. As the officer drove past the two juveniles, he saw that A.P.E. was staring at the passing traffic, mouthing words that the officer could not hear, and gesturing with his arms in an up and down motion, alternately grabbing his crotch and raising his arms. In order to investigate, the officer made a U-turn and stopped A.P.E. as he was crossing the street. A.P.E.'s companion left the scene when he saw the police car approaching. A.P.E., however, stopped and conversed with the police officer.

Due to heavy traffic, the police officer found it difficult to talk with A.P.E. and decided to continue the conversation inside the squad car. Before allowing A.P.E. into the squad car the officer performed a pat down search on A.P.E. for safety reasons. While performing the pat down search, the officer asked A.P.E. if he had any weapons on his person. In response, A.P.E. told the officer that he was carrying a knife. Relying on this information, the officer retrieved a knife from a scabbard on A.P.E.'s belt.

The knife the officer retrieved from A.P.E. was a T-handled push knife (see Figure 1). The handle had finger grooves similar to metallic knuckles and was attached to a knife-blade that was less than three and one-half inches in length. Four other small metal points were attached to the handle but they were not sharpened as knife blades.

After finding the push knife, the police officer placed A.P.E. under arrest. A.P.E. was charged with one count of harassment pursuant to section 18-9-111, 6 C.R.S. (2000),¹ one count of possession of an illegal weapon pursuant to section 18-12-102, 6 C.R.S. (2000),² and one count of unlawfully carrying a concealed weapon pursuant to section 18-12-105, 6 C.R.S. (2000).³

At trial, the defense's expert witness testified that the knife was a cheap, poor-quality knife manufactured in Asia and distributed in this country by Frost Cutlery. He further testified, and the prosecution conceded, that the blade of the knife was less than three and one-half inches in length. The expert witness explained that the knife was a derivation of an Alaskan-style knife used to skin animals and that the handle design protects the hand of the person using the knife. The expert characterized the knife as "an ugly knife," often purchased by "Walter Mitty" types as a "decorative" or "statement" knife. He acknowledged that the knife could be used to inflict wounds and that it could be "intimidating" if it were brandished.

At his trial, A.P.E. argued that the knife fit neither the definition of "metallic knuckles," prohibited by the illegal weapons statute, nor the definition of "knife" for purposes of the concealed weapons statute. A.P.E. contended that the concealed weapons statute only expressly prohibits a person from carrying a concealed knife with a blade longer than three and one-half inches. Because the blade on his knife was less than three and one-half inches long, A.P.E. contended that his mere possession of this knife — without anything more — did not violate the concealed weapons statute.

The trial court rejected these arguments and convicted A.P.E. of both possessing an illegal weapon and carrying a concealed weapon.⁴ The trial court agreed with A.P.E. that his knife did not meet the specific statutory definition of "knife" in the concealed weapons statute, section 18-12-101(1)(f), because its blade length was less than three and one-half inches. However, the judge found that the knife did satisfy the catchall definition of a knife because it was a dangerous instrument capable of inflicting cutting, stabbing, or tearing wounds. In its decision, the trial court did not address whether A.P.E. intended to use the knife as a weapon.

The court of appeals affirmed A.P.E.'s conviction on both counts. People ex rel. A.P.E., 988 P.2d 172, 176 (Colo.App.1999). In its decision, the court rejected A.P.E.'s claims that the evidence was insufficient to support his convictions. Id. at 174-75. It upheld the possession of an illegal weapon conviction, finding A.P.E. was in knowing possession of an instrument that was a combination of metallic knuckles and a knife blade. Id. The court also rejected A.P.E.'s argument that his conviction for carrying a concealed weapon should be set aside because it was not proven that he intended to use the knife as a weapon. Id. at 175-76. The court held that the defendant's intent to use this knife as a weapon was found because the knife's physical characteristics imply that its primary use is as a weapon. Id. at 176.

We granted certiorari to determine whether a person carrying a knife with a blade less than three and one-half inches long can be convicted of unlawfully carrying a concealed weapon when there is no evidence, other than the outward appearance of the knife, that the defendant intended to use it as a weapon.⁵ The conviction for possessing an illegal weapon is not at issue here.

We hold that a defendant may not be convicted under the concealed weapons statute for carrying a knife with a blade less than three and one-half inches in length, unless the prosecution proves that the defendant intended to use the knife as a weapon. Such intent cannot be inferred solely from the appearance of the item at issue. We reach this conclusion because of the plain language of the statutes at issue and our previous case law.

II.

A.

The trial court found A.P.E. guilty of carrying a concealed weapon based on its interpretation of the catchall provision in section 18-12-101(1)(f). Construing the meaning of the catchall provision is an issue of statutory interpretation and as such is subject to de novo review. Welch v. George, 19 P.3d 675, 677 (Colo.2000); Fogg v. Macaluso, 892 P.2d 271, 273 (Colo.1995).

B.

Under Colorado law, a person commits a class two misdemeanor if he or she knowingly and unlawfully "carries a knife concealed on or about his or her person." § 18-12-105(1)(a), 6 C.R.S. (2000). For purposes of the concealed weapons statute, a "knife" is defined as:

[A]ny 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. The issue that a knife is a hunting or fishing knife must be raised as an affirmative defense.

§ 18-12-101(1)(f), 6 C.R.S. (2000) (emphasis added). The underscored language is the catchall provision involved in this case. Section 18-12-101(1)(f) specifically defines daggers, dirks, knives, and stilettos with blades longer than three and one-half inches as "knives" per se. Section 18-12-105(1)(a) makes it illegal for a person to carry concealed on his or her person a dagger, dirk, knife or stiletto with a blade longer than three and one-half inches. By incorporating blade length into the definition of "knife," the General Assembly established a bright line distinction between daggers, dirks, knives, and stilettos with blades greater than three and one-half inches and those with shorter blades.

We know that the legislature made a clear policy choice to treat the two types of knives differently because prior to 1971 the concealed carrying of any knife was illegal. § 40-12-105(1)(a), 12 C.R.S. (1963 & Supp. 1971). Such broadly inclusive language had been construed by this court as not requiring proof of intent to use the object as a weapon. Pueblo v. Sanders, 151 Colo. 216, 217-18, 376 P.2d 996, 997 (1962) (construing Pueblo municipal ordinance). However, when the statute was repealed and reenacted in 1971, the new provision expressly provided that only a knife with a blade greater than three and one-half inches in length was per se illegal. Ch. 121, sec. 1, § 40-12-101, 1971 Colo. Sess. Laws 388, 481.

We must interpret the catchall provision with this legislatively created distinction in mind. Although there is no recorded legislative history of this statute, it seems clear that the...