State v. Johnson
| Decision Date | 15 May 1998 |
| Docket Number | No. 76851,76851 |
| Citation | 959 P.2d 476,25 Kan.App.2d 105 |
| Parties | STATE of Kansas, Appellee, v. Tommie T. JOHNSON, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The legislature is presumed to intend that a statute be given a reasonable construction, so as to avoid unreasonable or absurd results. Although our criminal statutes are construed strictly against the State, this rule is subordinate to the rule that judicial interpretation must effectuate legislative design and the legislature's true intent.
2. K.S.A. 21-4204 reflects a legislative intent to prohibit the possession of firearms by certain convicted felons.
3. Where the State charges a defendant with criminal possession of a firearm under K.S.A. 21-4204(a)(3), the State has no obligation to present proof that the defendant was found not to have been in possession of a firearm at the time of the commission of the prior felony.
Rick Kittel, Assistant Appellate Defender, Teodoro Garcia, student intern, and Steven R. Zinn, Deputy Appellate Defender, for appellant.
Elizabeth Rogers, Assistant District Attorney, Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, for appellee.
Before ROYSE, P.J., ROGG, S.J., and JAMES J. SMITH, District Judge, Assigned.
Tommie T. Johnson appeals his convictions on five counts of criminal possession of a firearm under K.S.A. 21-4204(a)(3). Johnson argues that there was insufficient evidence to support the verdict and that the district court erred in instructing the jury. We find no error and affirm.
Johnson was convicted of violating K.S.A. 21-4204(a)(3). That subsection prohibits
"possession of any firearm by any person who, within the preceding five years has been convicted of a felony, other than those specified in subsection (a)(4)(A), under the laws of Kansas or a crime under a law of another jurisdiction which is substantially the same as such felony, has been released from imprisonment for a felony or was adjudicated as a juvenile offender because of the commission of an act which if done by an adult would constitute the commission of a felony, and was found not to have been in possession of a firearm at the time of the commission of the offense." (Emphasis added.)
Johnson had been convicted of a burglary within the prescribed 5-year period. He argues on appeal, however, that the State failed to prove he was found not to have been in possession of a firearm at the time of the commission of that burglary. He also argues on appeal that the district court erred by failing to include in its instruction defining criminal possession of a firearm the essential element that Johnson was found not to have been in possession of a firearm at the time of the commission of the prior offense.
Both of Johnson's arguments require an interpretation of 21-4204(a)(3). Interpretation of a statute is a question of law subject to unlimited review on appeal. State v. Arculeo, 261 Kan. 286, Syl. p 1, 933 P.2d 122 (1997).
Johnson cites State v. Loudermilk, 221 Kan. 157, 557 P.2d 1229 (1976), to support his argument. The court in Loudermilk concluded that the State did not have to present evidence to the jury of a prior conviction under the statute in order to convict a defendant under K.S.A.1975 Supp. 65-4127a. 221 Kan. at 161, 557 P.2d 1229. A later case, State v. Caldwell, 21 Kan.App.2d 466, 901 P.2d 35, rev. denied 258 Kan. 859 (1995), is more helpful in examining Johnson's arguments. Caldwell addressed nearly identical arguments in regard to a conviction for a "drive-by shooting" under K.S.A.1993 Supp. 21-4219(b). That statute defines criminal discharge of a firearm as the malicious, intentional, and unauthorized discharge of a firearm at a dwelling, building, structure, or means of conveyance in which there is a human being who was not placed in immediate apprehension of bodily harm. This court determined in Caldwell that the State is not required to present affirmative proof of the absence of an immediate apprehension of bodily harm in order to secure a conviction under 21-4219(b). 21 Kan.App.2d at 472, 901 P.2d 35.
In arriving at this conclusion, Caldwell reiterated the rules of statutory interpretation:
21 Kan.App.2d at 470, 901 P.2d 35.
Caldwell then focused on the purpose of the statute: to ensure that a drive-by shooting was always a felony offense, regardless of the victim's state of mind. The court noted:
"This purpose would not be achieved if the State must prove the lack of immediate apprehension of bodily harm beyond a reasonable doubt because, where the evidence of apprehension is mixed and a doubt exists as to that element, the perpetrator of a drive-by shooting could not be convicted of either offense [criminal discharge of a firearm or aggravated assault]." 21 Kan.App.2d at 471, 901 P.2d 35.
Finally, Caldwell analogized the issue before it to the treatment of pre-meditation under the prior first-degree and second-degree murder statutes. Before 1992, first-degree murder required premeditation or the commission of a felony, while second-degree murder expressly required the killing to be without premeditation. K.S.A. 21-3401 (Ensley 1988); K.S.A. 21-3402 (Ensley 1988).
21 Kan.App.2d at 471-72, 901 P.2d 35.
See, e.g., State v. Webber, 260 Kan. 263, 279-80, 918 P.2d 609 (1996); State v. Carpenter, 228 Kan. 115, 126, 612 P.2d 163 (1980).
K.S.A. 21-4204 reflects a...
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State v. Dixon
...at 815–16. Dixon himself admits that this issue has already been decided, although he cites to a different court case, State v. Johnson, 25 Kan.App.2d 105, 959 P.2d 476,rev. denied 265 Kan. 888 (1998). In Johnson, a panel of this court ruled the State had no obligation to prove a negative. ......
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