People in re L.C

COLORADO COURT OF APPEALS                                          2017COA82


Court of Appeals No. 15CA1240
El Paso County District Court No. 14JD739
Honorable G. David Miller, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of L.C.,

Juvenile-Appellant.


                              JUDGMENT AFFIRMED

                                     Division VII
                             Opinion by JUDGE VOGT*
                           Terry and Richman, JJ., concur

                             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


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶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



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 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, 

, 668 (Colo.

                                    2
 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, 

, 18 (Colo. 2003). If there is

 more than one possible interpretation of the statute, we must adopt

 the constitutional construction. 

                      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, 

, 357 (1983); accord People v.

 Stotz, 

, ¶ 25. 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, 

, 937 (Colo. 1992) (quoting People v. Becker, 

, 31

 (Colo. 1988)).

                                   3
¶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. 

assessing whether a statute is reasonably definite, we give

  words and phrases used in the statute their generally accepted

  meanings. People v. Janousek, 

, 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, 

, 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, 

, 172 (Colo. 2006). But

  see Johnson v. United States, 576 U.S. __, __, 

,

  2560-61 (2015) (“[A]lthough statements in some of our opinions

                                     4
  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. 

; 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

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  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, 

, ¶ 23

  (“[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

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  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 

, and, regardless of the

  officer’s subjective interpretation here, we perceive no basis for

  concluding that the statute invites arbitrary or discriminatory

  enforcement. 

  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, 

, 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,

                                     7
  C.R.S. 

. 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. 

¶ 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 

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 applied to his conduct, because it

  prohibits activities that cannot reasonably be characterized as

  unlawful and invades his right under article II, section 13 of the

  Colorado Constitution to bear arms in defense of his home, person,

                                    8
  and property. See 

(statute is overbroad if it

  prohibits legitimate activity or encompasses protected rights within

  its prohibition). Because L.C. makes this argument for the first

  time on appeal, we decline to address its merits.

¶ 17   Appellate courts generally decline to address unpreserved

  as-applied challenges to the constitutionality of a statute because of

  the lack of a developed record. See People v. Patrick, 

,

  100 (Colo. 1989) (“It is imperative that there be some factual record

  made by the trial court which states why the evidence . . . causes

  the statute to be unconstitutional as applied.”); People v. Mountjoy,

  

, ¶ 36; People v. Torres, 

, 273 (Colo. App.

  2009); People v. Veren, 

, 140 (Colo. App. 2005); cf.

  People v. Allman, 

, ¶ 16 (reviewing merits of

  unpreserved as-applied vagueness challenge where record was

  sufficiently developed to permit review of claim).

¶ 18   Here, L.C. cites brief testimony by the arresting officer about

  L.C.’s conversation with his father after the arrest (“[L.C.] also made

  the statement that – I don’t remember the exact words – but

  something to the effect of you don’t understand what it is when you

  get in with these people or something of that nature.”), and he

                                     9
  argues on appeal that the statement “suggests that he was carrying

  the knife only for defensive purposes.” However, apart from that

  single ambiguous sentence, there is no evidence whatsoever in the

  record regarding L.C.’s reason for carrying the knife, and neither

  the magistrate nor the district court made any factual findings on

  the issue. In these circumstances, the record is insufficient to

  permit appellate review of L.C.’s as-applied overbreadth challenge.

¶ 19   As for his facial overbreadth challenge, we note that the

  supreme court and divisions of this court have exercised their

  discretion to review unpreserved facial challenges to a statute’s

  constitutionality, but “only where doing so would clearly further

  judicial economy.” People v. Houser, 

, ¶ 35 (collecting

  cases); see 

(exercising discretion

  to review unpreserved facial challenge in light of newly announced

  United States Supreme Court precedent, where doing so would

  “promote efficiency and judicial economy”). Here, L.C. does not

  explain, nor do we discern, how our addressing his facial challenge

  could promote judicial economy, and we are unaware of any

  recently announced relevant precedent or any other basis for



                                    10
  suggesting that his overbreadth argument could not have been

  raised earlier.

¶ 20   Moreover, even if we were to conclude that the unpreserved

  facial overbreadth challenge was reviewable for plain error, see

  Reyna-Abarca v. People, 

, ¶ 47, we would find no plain

  error. There was no case law or other authority that should have

  led the trial court sua sponte to find the statute unconstitutionally

  overbroad. See People v. Miller, 

, 750 (Colo. 2005) (for

  plain error to apply, error must have been “obvious”); see also Colo.

  Const. art. II, § 13 (“[N]othing herein contained shall be construed

  to justify the practice of carrying concealed weapons.”).

                      C. Sufficiency of the Evidence

¶ 21   In addition to his constitutional challenges, L.C. contends —

  again, for the first time on appeal — that the evidence was

  insufficient to prove that he carried a concealed knife “on or about

  his . . . person,” as required to sustain a conviction for violating

  section 18-12-105(1)(a). We disagree.

¶ 22   Due process requires that a conviction be supported by proof

  beyond a reasonable doubt of every element of the offense. See In re

  Winship, 

, 364 (1970); Vega v. People, 

,

                                     11
  111 (Colo. 1995). This requirement is met if the evidence, viewed as

  a whole and in the light most favorable to the prosecution, is

  substantial and sufficient to support the defendant’s guilt beyond a

  reasonable doubt. See Dempsey v. People, 

, 807 (Colo.

  2005); People in Interest of T.B., 

, ¶ 19.

¶ 23   Divisions of this court have disagreed on the standard of

  review of unpreserved sufficiency of the evidence claims. See T.B.,

  ¶¶ 16-19 (discussing cases). We need not decide which standard to

  apply because we conclude that the evidence was sufficient under

  any standard.

¶ 24   Where a challenge to the sufficiency of evidence requires that a

  statute be interpreted, the statute must be interpreted to effectuate

  the General Assembly’s intent. People v. Griego, 

, ¶ 27

  (cert. granted Dec. 7, 2015). To discern that intent, we give

  common words and phrases their ordinary meanings. 

unambiguous statutory language will be applied as written. 

  L.C. does not dispute that a knife within the section 18-12-

  101(1)(f) definition was found concealed in the backpack he was

  carrying. He argues, however, that because his knife was in a

  sheath in an interior zippered compartment of the backpack, it was

                                    12
  not readily accessible and thus was not “on or about” his person.

  In support of his interpretation of the statutory requirement, L.C.

  relies on People in Interest of R.J.A., 

, 349, 

, 493 (1976), in which a juvenile sitting in his car with a

  gun tucked under his seat was held to be carrying the gun on or

  about his person for purposes of section 18-12-105. In so holding,

  the division cited cases from other jurisdictions defining “about the

  person” as “sufficiently close to the person to be readily accessible

  for immediate use.” 

  In considering L.C.’s argument, we first note that section

  18-12-105 applies to concealed knives or other weapons carried,

  not just “on” the person, but “on or about” the person. “About”

  means “reasonably close to.” Merriam-Webster Collegiate

  Dictionary 4 (11th ed. 2004). Thus, by its plain meaning, “about”

  necessarily enlarges the area in which a weapon may be concealed,

  encompassing a space close to, even if not directly on, the person.

  See Brown v. United States, 

, 475 (D.C. Cir. 1929) (The

  word “about” is a comprehensive term; and by using “about” rather

  than simply “on” the person, the statute was intended to reach



                                    13
  weapons “concealed in such proximity to the person as to be

  convenient of access and within reach.”).

¶ 27   Courts in other jurisdictions have held that weapons carried in

  purses, briefcases, or backpacks were being carried “on or about”

  (or even, depending on the wording of the applicable statute, “on”)

  the person. See, e.g., De Nardo v. State, 

, 905-06

  (Alaska Ct. App. 1991) (collecting cases); People v. Wade, 

, 548-50 (Cal. 2016) (holding that a person who carried a gun in

  his backpack carried the gun “on” his person, and also observing

  that “the phrase ‘on or about’ is broader than ‘on,’ and certainly a

  firearm in a backpack the person is wearing is on or about the

  person”); State in Interest of R.P., 

, 79 (La. Ct. App.

  2014) (evidence that juvenile had handgun concealed in the

  backpack he was wearing was sufficient to satisfy statutory

  requirement that gun be “on his person”).

¶ 28   Moreover, even if we assume that, as the R.J.A. division held, a

  weapon not carried directly on the person must be “readily

  accessible for immediate 

, 556 P.2d at

  493, we conclude that the evidence, viewed under the standards set

  forth above, was sufficient to establish that it was. Although L.C.

                                    14
  asserts that he would necessarily have had to “shuffle through” the

  contents of the backpack to get to the knife, the fact that he avoided

  the compartment containing the knife when the officer confronted

  him suggests that he knew immediately where the knife was. See

  also State v. Molins, 

, 30 (Fla. Dist. Ct. App. 1982)

  (rejecting argument that firearm inside a zippered gun bag, which

  was itself inside a larger zippered canvas bag carried by defendant,

  was too inaccessible to be “on or about” defendant’s person for

  purposes of concealed weapon statute).

                      III. Protection Order Violation

¶ 29   L.C. contends that the provision of his protection order stating

  that he was not to “possess or control a firearm or other weapon”

  was unconstitutionally vague and overbroad. He also asserts that,

  because the prosecution failed to prove that he did anything

  directed at the protected person named in that order, the evidence

  was insufficient to establish that he violated it. We decline to

  address the first argument and we reject the second.

                 A. Constitutionality of Protection Order

¶ 30   For the first time on appeal, L.C. argues that the no-weapon

  provision of the protection order was unconstitutionally vague and

                                    15
  overbroad because, by failing to define “weapon,” it did not give him

  fair notice of what conduct was prohibited, and it violated his

  constitutional right to possess weapons for defending his home,

  person, or property. Applying the principles discussed above

  regarding unpreserved constitutional arguments, we do not reach

  the merits of L.C.’s constitutional contentions.

¶ 31   The protection order was entered in an unrelated case. Other

  than a copy of the order itself, there is no information about that

  case in the record before us. Thus, we have no way of knowing why

  the no-weapons provision was included in the order or whether the

  meaning or purpose of the provision was explained to L.C. Further,

  neither the magistrate nor the district court in this case made any

  findings about L.C.’s understanding of the protection order or about

  why L.C. was carrying the knife. Under these circumstances,

  addressing the merits of L.C.’s challenges to the no-weapon

  provision of the protection order would be an exercise in

  speculation that we decline to undertake.

                B. Evidence of Protection Order Violation

¶ 32   The 2013 protection order that L.C. was found to have violated

  is set forth on a one-page printed form that identifies L.C. as the

                                    16
  juvenile and A.H. as the protected person. It states, as relevant

  here, that “the [j]uvenile constitutes a credible threat to the life and

  health of the protected person.” The form lists six conditions with

  which the juvenile may be ordered to comply. Three of the six are

  checked, including the condition ordering that the juvenile shall not

  “[h]arass, molest, intimidate, retaliate against, or tamper with” the

  protected person and the condition that the juvenile “[s]hall not

  possess or control a firearm or other weapon.”

¶ 33   L.C. argued in the district court, as he does on appeal, that he

  could not be convicted of violating the protection order because,

  although he had a knife, he did not do anything directed at A.H.,

  the person protected by the order. The magistrate and the district

  court rejected his argument, as do we.

¶ 34   Although characterized as a sufficiency of the evidence issue,

  L.C.’s argument also involves construction of the criminal statute

  defining the offense. We review his contention de novo, applying

  the standards articulated in Part II.C, supra.

¶ 35   Under section 18-6-803.5(1)(a), C.R.S. 2016, a person commits

  the crime of violation of a protection order if, after having been



                                     17
  personally served with, or otherwise knowing the contents of, the

  order, the person

             [c]ontacts, harasses, injures, intimidates,
             molests, threatens, or touches the protected
             person . . . identified in the protection order or
             enters or remains on premises or comes within
             a specified distance of the protected person . . .
             or violates any other provision of the protection
             order to protect the protected person from
             imminent danger to life or health, and such
             conduct is prohibited by the protection order.

¶ 36   L.C. does not dispute that he knew of the protection order and

  that he possessed a knife. Instead, he argues that because there

  was no evidence that his possession of the knife was intended to

  harm A.H., the protected party, there was insufficient evidence to

  establish that he committed the offense described in section 18-6-

  803.5. The statute, L.C. contends, “requires proof that the conduct

  was prohibited and that it was intended to cause imminent danger

  to the life or health of AH.”

¶ 37   We disagree with L.C.’s interpretation of the statute. By using

  the disjunctive “or” in section 18-6-803.5(1)(a) (“contacts . . . the

  protected person . . . or violates any other provision of the

  protection order to protect the protected person from imminent

  danger to life or health”), the General Assembly intended to describe

                                     18
  alternative ways of committing the offense of violation of a

  protective order. See Quintano v. People, 

, 591 (Colo.

  2005) (use of disjunctive “or” specifies alternative means of

  committing the crime). Thus, violation of a protective order does

  not in every instance require proof that the accused contacted the

  protected person. Rather, a person may also commit the offense by

  “violat[ing] any other provision of the protection order to protect the

  protected person from imminent danger to life or health.” § 18-6-

  803.5(1)(a). Put another way, while the provision has to have been

  intended to protect the protected person, there is no additional

  requirement that the offender’s violation of the provision was itself

  “intended to cause imminent danger to the life or health” of the

  protected person, as L.C. argues.

¶ 38   While we have no record that could shed light on the original

  magistrate’s reasons for checking the “no-weapons” condition, we

  agree with the district court in this case that the restriction on

  carrying a weapon was “certainly rationally and reasonably related”

  to the goal of protecting A.H. from any further threat by L.C. to his

  life or health. Thus, evidence that the protection order contained a

  provision prohibiting L.C. from possessing a weapon and that L.C.

                                      19
  was found in possession of a weapon was sufficient to sustain his

  conviction for violation of a protection order.

                              IV. Conclusion

¶ 39   The judgment is affirmed.

       JUDGE TERRY and JUDGE RICHMAN concur.




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