People v. Wilson, 97CA1427

• Decision Date: 03 September 1998
• Docket Number: No. 97CA1427,97CA1427
• Citation: 972 P.2d 701
• Parties: 98 CJ C.A.R. 4620 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rory D. WILSON, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 701

972 P.2d 701

98 CJ C.A.R. 4620

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rory D. WILSON, Defendant-Appellant.

No. 97CA1427.

Colorado Court of Appeals Div. V.

Sept. 3, 1998.

As Modified on Denial of Rehearing

Oct. 29, 1998.

Certiorari Denied March 1, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Jane G. Ebisch, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Anthony Viorst, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Rory D. Wilson, appeals a judgment of conviction entered on jury verdicts finding him guilty of possession of a weapon by a previous offender and prohibited use of a weapon. We affirm.

On March 10, 1996, a sheriff's deputy who was investigating a reported road driving hazard observed a pick-up truck partially off the road. Defendant was in the front of the truck and a rifle was next to him in the passenger seat. Upon being ordered out of the vehicle, defendant informed the officer that he had a prior felony for burglary. The charges here at issue followed.

I.

Defendant contends the court erred in instructing the jury on the elements of prohibited use of a weapon while intoxicated. He maintains that the court's refusal to instruct the jury that the mens rea of knowingly was an element of the offense constituted reversible error. We disagree.

Section 18-12-106(1), C.R.S.1997, contains the elements of the offense of prohibited use of a weapon. It provides that a person commits a class 2 misdemeanor if:

(a) He knowingly and unlawfully aims a firearm at another person; or

(b) Recklessly or with criminal negligence he discharges a firearm or shoots a bow and arrow; or

(c) He knowingly sets a loaded gun, trap, or device designed to cause an explosion upon being tripped or approached, and leaves it unattended by a competent person immediately present; or

(d) He has in his possession a firearm while he is under the influence of intoxicating liquor or of a controlled substance ...

(e) He knowingly aims, swings, or throws a throwing star or nunchaku ... at another person .... (emphasis added)

Defendant asserts that, because the statute is silent with respect to the mens rea applicable to § 18-12-106(1)(d), C.R.S.1997, and the General Assembly did not specifically classify this offense as a strict liability offense, the element of knowingly must be included. We are not persuaded.

In questions of statutory interpretation, our task is to ascertain and give effect to the intent of the General Assembly. In determining that intent, it is useful to consider the plain language of the statute, People v. District Court, 713 P.2d 918 (Colo.1986), as well as the problem addressed by the legislation and the statutory remedy created to cure the problem. Charnes v. Boom, supra. See also People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979) (recognizing that it is reasonable for the General Assembly to regulate the possession of firearms by persons under the influence of alcohol or drugs). Also, the statutory scheme must be read and considered as a whole to give consistent, harmonious, and sensible effect to all its parts. Charnes v. Boom, 766 P.2d 665 (Colo.1988).

Applying these principles, we conclude that § 18-12-106(1)(d) is a strict liability offense and that the term "knowingly" is not included among its elements.

When the statute is considered as a whole, its plain language suggests that the General Assembly did not intend to include a specific mens rea within the elements of § 18-12-106(1)(d). Subsections 18-12-106(1)(a), (c), and (e), C.R.S.1997, specifically include the term "knowingly" among their elements, and § 18-12-106(1)(b), C.R.S.1997, specifically states that liability will attach if a person acts recklessly or with criminal negligence. Only § 18-12-106(1)(d) is silent with respect to a culpable mental state. This suggests that the General Assembly intended to punish anyone who simply possessed a firearm while intoxicated, even if that person did not do so knowingly.

This conclusion is bolstered by the legislative history of the statute. In 1977, subsections (a) and (c) of the statute were amended. The term "knowingly," which did not appear in either subsection before 1991, was added to both subsections that year. Colo. Sess. Laws 1977, ch. 224, § 18-12-106 at 971. The language of subsection (d) was also amended twice, first in 1981 and again in 1982. Yet neither amendment added "knowingly" to the provision. Colo. Sess. Laws 1981, ch. 128 at 738; Colo. Sess. Laws 1982, ch. 171 at 623.

Had the General Assembly intended that § 18-12-106(1)(d) be either a general or specific intent crime, it could have added a specific mens rea during the various times the statute was amended. The fact that no mens rea was added satisfies us that it was the intent of the General Assembly that the conduct described in § 18-12-106(1)(d) be a strict liability offense.

Therefore, we conclude the trial court did not err in refusing to instruct the jury that "knowingly" was an element of the offense.

In view of our conclusion that possession of a firearm while intoxicated is a strict liability offense, we need not address defendant's contention that the prosecution failed to prove he knowingly committed the offense.

II.

Defendant next contends the trial court erred in denying his motion to dismiss the charges against him based on a violation of his statutory right to speedy trial. Again, we disagree.

On July 3, 1996, defendant entered not guilty pleas to the charges and trial was originally scheduled to begin on November 4, 1996.

On November 1, 1996, the court rescheduled the trial because of docket congestion and reset it for December 16, 1996. Two other criminal trials unrelated to this case were also scheduled to begin on December 16th, and the same defense counsel, a public defender, was representing the defendants in all three cases. The parties appeared in court on December 16, 1996, but the trial court heard the other two cases first which necessitated the rescheduling of defendant's trial for January 2, 1997. This was one day before the speedy trial period expired.

When defense counsel informed the trial court he would be on vacation January 2nd, the court asked counsel to find another public defender from the same office to take over the case so the trial could begin on the date scheduled. Instead, ten days later defense counsel filed a motion to dismiss the charges against the defendant. The motion alleged that because of vacations, other jury trials, and problems in the coverage of other matters, no attorneys in his office were available to represent the defendant on January 2nd. The motion further asserted that the case should be dismissed because the speedy trial period would expire on January 3rd, and defendant could not be brought to trial before that date.

The trial court denied the motion to dismiss, finding that the trial could have gone forward within the original speedy trial period, but for defense counsel's unavailability. The court then treated the motion as a request for a continuance of defendant's trial date. It set a new trial date for May 19, 1997, and the case proceeded on that date.

Section 18-1-405, C.R.S.1997, provides that a defendant is entitled to dismissal of the charges if he or she is not brought to trial within six months from the date a plea of not guilty is entered. However, in computing the time within which a defendant must be brought to trial, the period of any delay caused at the instance of the defendant is excluded from the six month limitation period. Section 18-1-405(6)(f), C.R.S.1997.

Thus, if a defendant's attorney requests a continuance of a trial setting and the court in its discretion grants such a continuance, the speedy trial deadline is extended for an additional six months from the date the continuance was granted. Section 18-1-405(3), C.R.S.1997; People v. Anderson, 649 P.2d 720 (Colo.App.1982).

Here, defendant concedes that his counsel's inability to be present for the trial set to begin on January 2, 1997, was a delay caused at his instance and, thus, was excludable from the sixth month limitation period. He asserts, however, that the trial court erred in treating defense counsel's inability to be present as a request for a continuance and further erred in extending the speedy trial period for an additional six months on that basis. We conclude, as did the trial court, that defense counsel's motion to dismiss was equivalent to a request for a continuance which extended the speedy trial period for an additional six months.

In People v. Chavez, 650 P.2d 1310 (Colo.App.1982), defense counsel advised the court that he would not be available to try the case on the scheduled trial date because of scheduling conflicts, nor was he available until after the expiration of the speedy trial period. A division of this court concluded that the actions of defense counsel were tantamount to a request for a continuance.

Similarly, here, defense counsel was unavailable to try the case the day it was scheduled to begin and also unable to find a replacement from his office to represent the defendant before the expiration of the speedy trial period. Under these circumstances, we conclude that the defendant's motion to dismiss was tantamount to a request for a continuance in order to protect the defendant's Sixth Amendment right to counsel. See People v. District Court, 933 P.2d 583 (Colo.1997) (under some circumstances it is necessary for the trial court to continue a trial beyond the speedy trial period in order to protect a defendant's constitutional rights).

Nor are we persuaded by defendant's claim that People v. Bell, 669 P.2d 1381 (Colo.1983), mandates a different result. In Bell, defendant was prepared to proceed...