People ex rel. L.C., Court of Appeals No. 15CA1240

• Decision Date: 15 June 2017
• Docket Number: Court of Appeals No. 15CA1240
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF L.C., Juvenile-Appellant.
• Court: Colorado Court of Appeals

486 P.3d 1168

The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF L.C., Juvenile-Appellant.

Court of Appeals No. 15CA1240

Colorado Court of Appeals, Division VII.

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

Opinion by JUDGE VOGT^*

¶ 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 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. 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, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ; accord People v. Stotz , 2016 COA 16, ¶ 25, 381 P.3d 357. 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) ).

¶ 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. 591, 601-04, 135 S.Ct. 2551, 2560-61, 192 L.Ed.2d 569 (2015) ("[A]lthough statements in some of our opinions 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 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, 321 P.3d 573 ("[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 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, 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...