July 18, 2019

Colorado Court of Appeals: Application of Statute Criminalizing Possession of a Weapon by a Previous Offender Does Not Violate Constitutional Prohibitions Against Ex Post Facto Laws

The Colorado Court of Appeals issued its opinion in People v. DeWitt on September 15, 2011.

Possession of a Weapon by a Previous Offender—Unconstitutional—Due Process—Jury Instruction—Affirmative Defense—Right to Bear Arms—Mental State.

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 was reversed and the case was remanded for a new trial.

Defendant contended that the POWPO statute is unconstitutional as applied to him because it violated the prohibition against ex post facto laws. It does not matter that defendant’s predicate felonies occurred in 1994 (before the change in the law), because he was punished for conduct occurring in 2009 (after the change). Therefore, the amended POWPO statute as applied to defendant does not violate the constitutional prohibitions against ex post facto laws.

Defendant also contended that the amended POWPO statute as applied to him violated his right to due process. The requirements of due process are satisfied by the notice that is given through publication of the statutes. Accordingly, application of the amended POWPO statute to defendant does not violate his right to due process.

Defendant further contended that the trial court erred by refusing to give his tendered jury instructions regarding the affirmative defense of the right to bear arms. As long as there is competent evidence in the record of a constitutionally protected purpose, a defendant is entitled to such an affirmative defense, and it will be for the jury to decide the issue of the defendant’s purpose in possessing the weapon. Here, defendant’s testimony constitutes some credible evidence that he carried his handgun for the constitutionally protected purposes of defending his person and his property. Therefore, defendant was entitled to an affirmative defense instruction on his constitutional right to bear arms. Because the court’s error cannot be deemed harmless, defendant’s POWPO convictions were reversed and the case remanded for a new trial.

Defendant also argued that the “knowingly” mental state required for a POWPO conviction applies to the prior felony conviction element of the offense. The statute prohibits all convicted felons from possessing a firearm to avoid “substantial risk of harm to the public.” It would be inconsistent with this purpose to require proof of a defendant’s knowledge of his or her convicted felon status before prohibiting the possession of a firearm. Therefore, the express mental state of “knowingly” in the amended POWPO statute does not apply to the prior felony conviction element of the offense. Accordingly, the trial court did not err in its interpretation of the amended POWPO statute.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 15, 2011, can be found here.

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