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, 169 P.3d 662, 668 (Colo.

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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, 73 P.3d 15, 18 (Colo. 2003). If there is

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

the constitutional construction. Id.

A. Vagueness

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, 461 U.S. 352, 357 (1983); accord People v.

Stotz, 2016 COA 16, ¶ 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, 830 P.2d

933, 937 (Colo. 1992) (quoting People v. Becker, 759 P.2d 26, 31

(Colo. 1988)).

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¶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. Id.

¶9 In assessing whether a statute is reasonably definite, we give

words and phrases used in the statute their generally accepted

meanings. People v. Janousek, 871 P.2d 1189, 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, 699 P.2d 411, 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, 148 P.3d 162, 172 (Colo. 2006). But

see Johnson v. United States, 576 U.S. __, __, 135 S. Ct. 2551,

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

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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. Shell, 148 P.3d at 172; 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, 2013 COA 40, ¶ 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 Gross, 830 P.2d at 937, and, regardless of the

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

concluding that the statute invites arbitrary or discriminatory

enforcement. Id.

¶ 14 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, 20 P.3d 1179, 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,

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C.R.S. 2016. 830 P.2d at 937-38. 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. Id. at 940.

¶ 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 id. at 938. 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 Gross, 830 P.2d at 939 (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, 772 P.2d 98,

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,

2016 COA 86, ¶ 36; People v. Torres, 224 P.3d 268, 273 (Colo. App.

2009); People v. Veren, 140 P.3d 131, 140 (Colo. App. 2005); cf.

People v. Allman, 2012 COA 212, ¶ 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, 2013 COA 11, ¶ 35 (collecting

cases); see Hinojos-Mendoza, 169 P.3d at 667 (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

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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, 2017 CO 15, ¶ 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, 113 P.3d 743, 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, 397 U.S. 358, 364 (1970); Vega v. People, 893 P.2d 107,

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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, 117 P.3d 800, 807 (Colo.

2005); People in Interest of T.B., 2016 COA 151M, ¶ 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, 2015 COA 31, ¶ 27

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

common words and phrases their ordinary meanings. Id. Clear

and unambiguous statutory language will be applied as written. Id.

¶ 25 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., 38 Colo. App. 346, 349, 556

P.2d 491, 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.” Id.

¶ 26 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, 30 F.2d 474, 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

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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, 819 P.2d 903, 905-06

(Alaska Ct. App. 1991) (collecting cases); People v. Wade, 369 P.3d

546, 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., 150 So. 3d 76, 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 use,” 38 Colo. App. at 349, 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.

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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, 424 So. 2d 29, 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

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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

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alternative ways of committing the offense of violation of a

protective order. See Quintano v. People, 105 P.3d 585, 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.

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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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