The Colorado Court of Appeals issued its opinion in People v. Carbajal on March 1, 2012.
Possession of a Weapon by a Previous Offender—Right to Bear Arms—Jury Instruction—Threat of Imminent Harm—Affirmative Defense.
Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of possession of a weapon by a previous offender (POWPO). The judgment of conviction was reversed and the case was remanded for a new trial.
Defendant argued that the trial court committed reversible error when it rejected his tender of the stock jury instruction regarding his affirmative defense to the POWPO charges and instead used a version provided by the prosecution, which added language concerning a reasonable belief of a threat of imminent harm. In 1876, Colorado adopted a Constitution that included a provision in its Bill of Rights establishing a right to keep and bear arms in defense of one’s home, person, and property. During the 20th century, the Colorado General Assembly enacted a statute making it unlawful for a previous offender to possess weapons.
The Colorado Supreme Court held that a defendant may raise an affirmative defense to a POWPO charge under Colo. Const. art. II, § 13, by presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property, which language was included in the stock jury instruction proposed by defendant. Because the modified jury instruction allowed the prosecution to defeat the affirmative defense by showing that defendant did not reasonably believe in a “threat of imminent harm,” the burden of proof regarding defendant’s purpose in possessing weapons was impermissibly lowered. Because the trial court erred in modifying the stock instruction to include a “threat of imminent harm” requirement, and the modified affirmative defense instruction impacted defendant’s substantial rights, the error was not harmless.