State v. Johnson
| Decision Date | 02 December 2022 |
| Docket Number | 124,256 |
| Parties | State of Kansas, Appellee, v. Antonio Mark Johnson, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; David J. Kaufman, judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett district attorney, and Derek Schmidt, attorney general, for appellee.
Before Warner, P.J., Green and Hill, JJ.
In this direct criminal appeal, Antonio Mark Johnson appeals his conviction for criminal possession of a firearm by a felon. He claims insufficient evidence, jury instruction error, the statute violates the Kansas Constitution, and prosecutor error in the closing argument. After reviewing the record none of Johnson's claims are reversible, although there is a record of prosecutor error. It was harmless. We affirm his conviction.
There is no real dispute about the facts giving rise to the charges.
While parked in their patrol car, in October 2019, Detective David Inkelaar and Sergeant Chad Cooper heard a single gunshot. They saw a man-later identified as Antonio Mark Johnson-holding a shotgun walking towards the parking lot where they were parked. They got out of their patrol car and ordered Johnson to put the gun down and get on the ground. Johnson complied and was taken into custody.
The State later charged Johnson with criminal possession of a weapon by a felon and unlawful discharge of a firearm in a city. The case was submitted to a jury in June 2021. Detective Inkelaar and Sergeant Cooper testified to what they heard, what they saw, and why they arrested Johnson.
The State also called Parma Quenzer, a witness who first told the police she saw Johnson carrying a shotgun. But Quenzer testified she could not remember seeing Johnson or speaking with the police because she was high on drugs at the time. A third officer interviewed Quenzer at the scene. He testified that she said she heard two or three gunshots, saw a Hispanic man carrying a gun, and identified Johnson as the man she saw at the scene.
The jury found Johnson guilty of criminal possession of a weapon, but acquitted him of unlawful discharge of a firearm in a city. The court sentenced Johnson to 19 months in prison.
There is sufficient evidence to support this conviction.
To understand Johnson's argument, we must first review the statute that is the basis for his charge: K.S.A. 2019 Supp. 21-6304(a). The law provides a context for his argument.
The statute says:
We highlight the second portion of the statute because that section is at the heart of Johnson's argument. Essentially, he is arguing that the State failed to present sufficient evidence in this prosecution that he did not have a firearm in his possession when he, as a juvenile, committed his prior crime. In other words, the State failed to prove an element of his offense-that he did not have a gun in his possession when he committed his first crime.
After considering the arguments of the parties and reviewing the record, we hold that Johnson's argument is a matter of statutory interpretation and not an ordinary insufficient evidence argument. In so holding, we embrace the analysis of this statute presented by another panel of this court in State v. Johnson, No. 121,187, 2020 WL 5587083, at *3-4 (Kan. App. 2020) (unpublished opinion) rev. denied 313 Kan. 1044 (2021).
The statute, K.S.A. 2019 Supp. 21-6304(a), prohibits felons from possessing a weapon. But it does not create an absolute ban for all felons for all times. As time passes, some felons can legally possess weapons under this law. But it depends on certain facts of their prior convictions. The statute does begin with a total ban and then relaxes with the passage of time according to the circumstances of their convictions.
Under the first section of the statute, offenders may never possess a weapon if they have 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 prior crime was committed. K.S.A. 2019 Supp. 21-6304(a)(1). This section creates a ban from possessing weapons if you possess a weapon while committing your prior person crime. Thus, the State-when prosecuting such an offense-must prove the prior crime was a person felony conviction and the offender possessed a weapon while committing the crime. Two elements must be proved-the prior crime-and the possession of a firearm while committing that crime.
Moving on, the statute begins to gradually relax restrictions on weapons. A defendant may not possess a weapon for 10 years from a felony conviction of one of several enumerated violent crimes, or if a nonperson felony was committed while the defendant was in possession of a firearm. K.S.A. 2019 Supp. 21-6304(a)(3). Under this section, the State must prove the prior conviction was one of the enumerated crimes or that the prior crime was a nonperson felony. Of course, the State must also prove that the offender possessed the weapon within the 10-year limitation period.
Next, offenders 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, when they have been convicted of an otherwise unlisted felony while not in possession of a firearm. K.S.A. 2019 Supp. 21-6304(a)(2). This section also applies if the offenders have been adjudicated as juvenile offenders. That is, if their crimes would constitute a felony if they had been committed by an adult and offenders did not possess a firearm at the time of the commission of the crime. To convict under this section, the State must prove the offender possessed a weapon and must also prove the prior felony conviction-or juvenile adjudication-as is the case here, had occurred within five years. The State need not prove the absence of a firearm for the prior crime. That is simply not an element that must be proved. Johnson's argument about insufficient evidence fails under our interpretation of the statute.
Our holding tracks prior appellate rulings. Interestingly, in the cases we discuss below, the defendants' last names are Johnson.
In State v. Johnson, 25 Kan.App.2d 105, 959 P.2d 476 (1998), the defendant was convicted of violating K.S.A. 21-4204(a)(3)-the predecessor of K.S.A. 2019 Supp. 21-6304(a)(2). The defendant argued the State failed to prove he was not found to be in possession of a firearm when he committed his prior felony. The court ultimately held that when the State charges a defendant with criminal possession of a firearm by a felon, the State does not have to prove the defendant was not found to be in possession of a firearm when the prior felony was committed. The panel explained its reasoning for rejecting the defendant's argument:
25 Kan.App.2d at 108.
Later, in Johnson, 2020 WL 5587083, at *3-4, as we have noted, the panel analyzed K.S.A. 2019 Supp. 21-6304(a) as a whole and explained that anyone convicted of a felony is prohibited from possession of a weapon for five years. As time passes from the date of the felony conviction, the prohibition applies to fewer offenders-after 5 years, it only applies to individuals convicted of certain felonies; after 10 years, it only applies to individuals convicted of person felonies who possessed a firearm at the time.
That panel explained that only three years passed from when Johnson was convicted of a felony and when he was charged with criminal possession of a weapon. Thus, he still committed criminal possession of a weapon regardless of whether he possessed a firearm when he committed the initial felony. In other words, the court found that there was sufficient evidence to show he was a felon and he possessed a firearm and thus fell within the reach of the statute. Johnson, 2020 WL 5587083, at *3-4.
The unpublished Johnson court then rejected the defendant's argument that the State had to prove he was not found to be in possession of a firearm when he committed his first felony. The panel cited Johnson, 24 Kan.App.2d at 108, and said Kansas courts have long rejected the argument, finding the State need not prove a negative. 2020 WL 5587083, at *4.
If we apply this reasoning to the facts here, we have but one conclusion. Johnson was charged with criminal possession of a weapon within five years of his juvenile adjudication. Johnson was prohibited from possessing a firearm and it did not matter if he had a gun when he committed his juvenile crime. We reject Johnson's argument that there was insufficient evidence supporting his conviction for criminal possession of a weapon by a felon.
The jury instruction given was proper.
Following his argument about the State's failure to prove...
To continue reading
Request your trial