People v. Johnson

• Decision Date: 29 July 2021
• Docket Number: Court of Appeals No. 18CA1212
• Citation: 2021 COA 102,498 P.3d 157
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sylvia JOHNSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

498 P.3d 157

2021 COA 102

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Sylvia JOHNSON, Defendant-Appellant.

Court of Appeals No. 18CA1212

Colorado Court of Appeals, Division II.

Announced July 29, 2021

Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE LIPINSKY

¶ 1 The General Assembly enacted Colorado's "straw purchaser" statute following the revelation that adults had sold guns to the teenagers who opened fire on fellow students and teachers at Columbine High School. After Columbine, the legislature enacted section 18-12-111(1), C.R.S. 2020, to prevent "straw purchasers" from obtaining firearms for persons who could not legally possess them. The statute imposes criminal liability for knowingly "purchas[ing] or otherwise obtain[ing] a firearm on behalf of or for transfer to a person who the transferor knows or reasonably should know is ineligible to possess a firearm ...." Id. Section 18-12-111(1) does not include a definition of "transfer."

¶ 2 In this case, we consider whether a "transfer" under section 18-12-111(1) occurs when a person knowingly purchases a firearm for the purpose of sharing it with an ineligible person.

I. Introduction

¶ 3 Sylvia Johnson appeals from a judgment of conviction entered on a jury verdict finding her guilty of unlawful purchase of a firearm pursuant to section 18-12-111(1).

¶ 4 The prosecution argued at trial that Johnson violated the statute by purchasing a firearm with Jaron Trujillo, whom she described as her common law husband and who was ineligible to possess the firearm, and then storing it in a closet where Trujillo could access it. Johnson contends that the statute does not apply to her because she did not buy a firearm on someone else's behalf while falsely claiming it was for herself, or that she "intentionally fronted for another" and thereby played a "conscious, willing role of the middleman." She asserts that, under her interpretation of section 18-12-111(1), there was insufficient evidence to support her conviction.

¶ 5 Because we disagree with Johnson's reading of section 18-12-111(1), we hold there was sufficient evidence to support Johnson's conviction. We also disagree with Johnson's other contentions of error. For these reasons, we affirm the judgment of conviction.

II. Background

¶ 6 Johnson knew that Trujillo could not legally possess a firearm under the terms of a protection order entered against him and because he was a convicted felon. With this knowledge, Johnson visited a pawnshop with Trujillo. At the pawnshop, Trujillo examined firearms available for sale and Johnson purchased a firearm.

¶ 7 Sixteen days after Johnson purchased the firearm, a police officer responded to a call from the management of Johnson's apartment complex reporting that Trujillo was staying at Johnson's apartment in violation of the protection order. The protection order barred Trujillo from entering the apartment complex, as well as from "possess[ing], purchas[ing], or control[ling]" a firearm.

¶ 8 After observing Trujillo leave Johnson's apartment to smoke a cigarette, the officer arrested him for violating the protection order. The officer asked Trujillo whether he had any weapons. Trujillo acknowledged he had a gun in his pocket and said that it belonged to Johnson.

¶ 9 Johnson was charged with violating section 18-12-111(1). At her trial, the prosecution called Trujillo as a witness and asked him whether he and Johnson had intended to purchase a firearm at the pawnshop. Trujillo responded that he and Johnson went to the pawnshop to buy jewelry. But on cross-examination, Trujillo responded affirmatively to defense counsel's question, "[D]id you go to the pawnshop because Ms. Johnson wanted to purchase a gun?" On redirect examination, the prosecutor asked Trujillo to reconcile these conflicting statements:

Q. So I will ask you, sir, why did you go to the pawn shop?

A. Could be because she wanted a gun and also jewelry. I don't remember that day. I honestly don't remember.

¶ 10 When the questioning turned to how Trujillo had obtained the firearm, he testified that he knew Johnson kept it in her closet. Although Trujillo asserted that he did not remember whether Johnson told him where she stored the firearm, he said he knew Johnson kept it in the closet so it would not "be in reach" of their children. Trujillo explained that he and Johnson had previously stored other guns at that location. Neither Trujillo nor Johnson testified that Johnson warned Trujillo not to take the firearm. Trujillo said he took the firearm while Johnson was away from the apartment.

¶ 11 Johnson testified that she purchased the firearm for herself and never gave it to Trujillo. But she also said she told Trujillo where she stored the firearm. She admitted that Trujillo lived with her and the children in the apartment, even though he was not allowed to enter the apartment under the terms of the protection order.

¶ 12 In addition, Johnson conceded that she was aware the protection order barred Trujillo from "possess[ing], purchas[ing], or control[ling] a firearm or other weapons" and that, as a convicted felon, Trujillo "was not allowed to possess a firearm." The jurors also heard a recording of a phone call that Trujillo made to Johnson from jail about seven months before Johnson and Trujillo visited the pawnshop. During that call, Trujillo told Johnson he had been convicted of a felony.

¶ 13 During cross-examination, the prosecutor pressed Johnson on her reasons for purchasing the firearm:

Q. So you were concerned about Mr. Trujillo's safety and especially when he would smoke cigarettes on this balcony; is that correct?

A. In all reality, sir, I was concerned about my whole family's safety.

Q. And that's not what I'm asking you, Ms. Johnson. ... Yes or no, you were concerned about Mr. Trujillo's safety when –

A. Yes, I was.

Q. – he was outside smoking?

A. Yes, I was.

¶ 14 Johnson raises three arguments on appeal. First, she asserts there was insufficient evidence to support her conviction because a "transfer" for purposes of section 18-12-111(1) requires more than merely providing the ineligible person with access to the firearm. Second, she contends that the trial court reversibly erred by allowing the prosecutor to ask Trujillo whether defense counsel had previously represented him. Third, Johnson argues that section 18-12-111(1) is unconstitutionally vague on its face and as applied.

III. The Record Contains Sufficient Evidence to Support Johnson's Conviction for Violating Section 18-12-111(1)

A. The Plain Meaning of Section 18-12-111(1)

¶ 15 We review issues of statutory interpretation de novo. People v. Subjack , 2021 CO 10, ¶ 14, 480 P.3d 114, 117. In construing the meaning of a statute, we must interpret its plain language to ascertain and give effect to the General Assembly's intent. Id. When the words and phrases of a statute are clear, we read them in context, construe the language according to its common usage, and apply the statute as written. Manjarrez v. People , 2020 CO 53, ¶ 19, 465 P.3d 547, 550-51.

¶ 16 We focus our analysis of section 18-12-111(1) on the meaning of "transfer" because, for reasons unrelated to the issues raised on appeal, Johnson, the prosecutor, and the trial court agreed to provide the jury with an instruction that referred to "for transfer to" in place of the more expansive "on behalf of or for transfer to" statutory language. While we acknowledge that "[s]ufficiency of evidence is measured ‘against the elements of the offense, not against the jury instructions,’ " People v. Helms , 2016 COA 90, ¶ 52, 396 P.3d 1133, 1146 (quoting People v. Vigil , 251 P.3d 442, 447 (Colo. App. 2010) ), we cannot decide a factual issue not presented to the jury — here, whether Johnson purchased the firearm "on behalf of" Trujillo.

¶ 17 Johnson's contention that section 18-12-111(1) does not apply to her because she did not (1) act as a "straw purchaser" by buying a gun on someone else's behalf while falsely claiming it was for herself and (2) play a "conscious, willing role of the middleman" is inconsistent with the language of the statute for two reasons. First, nothing in section 18-12-111(1) requires that the defendant falsely claim the firearm was for himself or herself. Second, Johnson relies on legislative history referring to the "role of the middleman" to narrow the statute's scope. As explained below, however, we need not rely on legislative history to interpret the statute because its language is unambiguous. Further, a court may not vary the language of a statute by referring to legislative history. See Mitchell v. Chengbo Xu , 2021 COA 39, ¶ 37, 488 P.3d 1200, 1207 (Lipinsky, J., specially concurring) (noting that, where statutory language is plain and concise and the meaning is clear, a court should not vary that meaning by resort to legislative history).

¶ 18 In addition, Johnson supports her argument by pointing to definitions of "transfer" that she contends do not encompass the act of merely providing access to the subject item. For example, she cites to Chow v. State , 393 Md. 431, 903 A.2d 388 (2006), which addressed the meaning of "transfer" in the 2002 version of the Maryland firearm application statute. The Maryland statute stated, in relevant part, that "[a] person who is not a regulated firearms dealer may not sell, rent, transfer , or purchase any regulated firearm until after 7 days shall have elapsed from the time an application to purchase or transfer shall have been executed ...." See Chow , 903 A.2d at 394 (quoting Md. Code (1957, 1996 Repl. Vol., 2002 Supp.), Art. 27, § 442(d)(1)). Based on its review of the language of other Maryland firearms statutes, the Chow court concluded that "transfer" in the Maryland firearm application statute meant a permanent conveyance. Id. at 402.

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