State v. Johnson

NOT DESIGNATED FOR PUBLICATION

No. 124,256

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANTONIO MARK JOHNSON,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed December 2,
2022. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before WARNER, P.J., GREEN and HILL, JJ.

PER CURIAM: In this direct criminal appeal, Antonio Mark Johnson appeals his
conviction for criminal possession of a firearm by a felon. He claims insufficient
evidence, jury instruction error, the statute violates the Kansas Constitution, and
prosecutor error in the closing argument. After reviewing the record, none of Johnson's
claims are reversible, although there is a record of prosecutor error. It was harmless. We
affirm his conviction.

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There is no real dispute about the facts giving rise to the charges.

While parked in their patrol car, in October 2019, Detective David Inkelaar and
Sergeant Chad Cooper heard a single gunshot. They saw a man—later identified as
Antonio Mark Johnson—holding a shotgun walking towards the parking lot where they
were parked. They got out of their patrol car and ordered Johnson to put the gun down
and get on the ground. Johnson complied and was taken into custody.

The State later charged Johnson with criminal possession of a weapon by a felon
and unlawful discharge of a firearm in a city. The case was submitted to a jury in June
2021. Detective Inkelaar and Sergeant Cooper testified to what they heard, what they
saw, and why they arrested Johnson.

The State also called Parma Quenzer, a witness who first told the police she saw
Johnson carrying a shotgun. But Quenzer testified she could not remember seeing
Johnson or speaking with the police because she was high on drugs at the time. A third
officer interviewed Quenzer at the scene. He testified that she said she heard two or three
gunshots, saw a Hispanic man carrying a gun, and identified Johnson as the man she saw
at the scene.

The jury found Johnson guilty of criminal possession of a weapon, but acquitted
him of unlawful discharge of a firearm in a city. The court sentenced Johnson to 19
months in prison.

There is sufficient evidence to support this conviction.

To understand Johnson's argument, we must first review the statute that is the
basis for his charge: K.S.A. 2019 Supp. 21-6304(a). The law provides a context for his
argument.

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 The statute says:

"(a) Criminal possession of a weapon by a convicted felon is possession of any
weapon by a person who:
....
(2) within the preceding five years has been . . . 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 not found to have been in possession of a firearm at
the time of the commission of the crime." (Emphasis added.) K.S.A. 2019 Supp. 21-
6304(a)(2).

We highlight the second portion of the statute because that section is at the heart
of Johnson's argument. Essentially, he is arguing that the State failed to present sufficient
evidence in this prosecution that he did not have a firearm in his possession when he, as a
juvenile, committed his prior crime. In other words, the State failed to prove an element
of his offense—that he did not have a gun in his possession when he committed his first
crime.

After considering the arguments of the parties and reviewing the record, we hold
that Johnson's argument is a matter of statutory interpretation and not an ordinary
insufficient evidence argument. In so holding, we embrace the analysis of this statute
presented by another panel of this court in State v. Johnson, No. 121,187, 2020 WL
5587083, at *3-4 (Kan. App. 2020) (unpublished opinion) rev. denied 313 Kan. 1044
(2021).

The statute, K.S.A. 2019 Supp. 21-6304(a), prohibits felons from possessing a
weapon. But it does not create an absolute ban for all felons for all times. As time passes,
some felons can legally possess weapons under this law. But it depends on certain facts
of their prior convictions. The statute does begin with a total ban and then relaxes with
the passage of time according to the circumstances of their convictions.

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 Under the first section of the statute, offenders may never possess a weapon if they
have ever been convicted of a person felony (or a substantially identical crime to one
Kansas classifies as a person felony) and "was found to have been in possession of a
firearm" when that prior crime was committed. K.S.A. 2019 Supp. 21-6304(a)(1). This
section creates a ban from possessing weapons if you possess a weapon while committing
your prior person crime. Thus, the State—when prosecuting such an offense—must prove
the prior crime was a person felony conviction and the offender possessed a weapon
while committing the crime. Two elements must be proved—the prior crime—and the
possession of a firearm while committing that crime.

Moving on, the statute begins to gradually relax restrictions on weapons. A
defendant may not possess a weapon for 10 years from a felony conviction of one of
several enumerated violent crimes, or if a nonperson felony was committed while the
defendant was in possession of a firearm. K.S.A. 2019 Supp. 21-6304(a)(3). Under this
section, the State must prove the prior conviction was one of the enumerated crimes or
that the prior crime was a nonperson felony. Of course, the State must also prove that the
offender possessed the weapon within the 10-year limitation period.

Next, offenders may not possess a weapon for five years from a felony conviction
for all felonies that do not fall into one of those other categories—in other words, when
they have been convicted of an otherwise unlisted felony while not in possession of a
firearm. K.S.A. 2019 Supp. 21-6304(a)(2). This section also applies if the offenders have
been adjudicated as juvenile offenders. That is, if their crimes would constitute a felony if
they had been committed by an adult and offenders did not possess a firearm at the time
of the commission of the crime. To convict under this section, the State must prove the
offender possessed a weapon and must also prove the prior felony conviction—or
juvenile adjudication—as is the case here, had occurred within five years. The State need
not prove the absence of a firearm for the prior crime. That is simply not an element that

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must be proved. Johnson's argument about insufficient evidence fails under our
interpretation of the statute.

Our holding tracks prior appellate rulings. Interestingly, in the cases we discuss
below, the defendants' last names are Johnson.

In State v. Johnson, 25 Kan. App. 2d 105, 959 P.2d 476 (1998), the defendant was
convicted of violating K.S.A. 21-4204(a)(3)—the predecessor of K.S.A. 2019 Supp. 21-
6304(a)(2). The defendant argued the State failed to prove he was not found to be in
possession of a firearm when he committed his prior felony. The court ultimately held
that when the State charges a defendant with criminal possession of a firearm by a felon,
the State does not have to prove the defendant was not found to be in possession of a
firearm when the prior felony was committed. The panel explained its reasoning for
rejecting the defendant's argument:

"If there was uncertainty about whether he was found to have been in possession of a
firearm at the time of the burglary, then Johnson's contention would permit him to avoid
the prohibition altogether. Requiring the State to prove a defendant was not found to have
been in possession of a firearm at the time of his prior conviction would require the State
to prove a negative and would create a gap in the statutory scheme inconsistent with the
legislature's purpose." 25 Kan. App. 2d at 108.

Later, in Johnson, 2020 WL 5587083, at *3-4, as we have noted, the panel analyzed
K.S.A. 2019 Supp. 21-6304(a) as a whole and explained that anyone convicted of a felony
is prohibited from possession of a weapon for five years. As time passes from the date of
the felony conviction, the prohibition applies to fewer offenders—after 5 years, it only
applies to individuals convicted of certain felonies; after 10 years, it only applies to
individuals convicted of person felonies who possessed a firearm at the time.

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 That panel explained that only three years passed from when Johnson was convicted
of a felony and when he was charged with criminal possession of a weapon. Thus, he still
committed criminal possession of a weapon regardless of whether he possessed a firearm
when he committed the initial felony. In other words, the court found that there was
sufficient evidence to show he was a felon and he possessed a firearm and thus fell within
the reach of the statute. Johnson, 2020 WL 5587083, at *3-4.

The unpublished Johnson court then rejected the defendant's argument that the State
had to prove he was not found to be in possession of a firearm when he committed his first
felony. The panel cited Johnson, 24 Kan. App. 2d at 108, and said Kansas courts have long
rejected the argument, finding the State need not prove a negative. 2020 WL 5587083, at
*4.

If we apply this reasoning to the facts here, we have but one conclusion. Johnson
was charged with criminal possession of a weapon within five years of his juvenile
adjudication. Johnson was prohibited from possessing a firearm and it did not matter if he
had a gun when he committed his juvenile crime. We reject Johnson's argument that there
was insufficient evidence supporting his conviction for criminal possession of a weapon
by a felon.

The jury instruction given was proper.

Following his argument about the State's failure to prove an element of the charge,
Johnson argues that the district court failed to adequately instruct the jury about the
criminal possession of a weapon charge because the court did not instruct the jury it had
to find that Johnson was not found to be in possession of a firearm at the time of his prior
juvenile adjudication.

For that charge, the trial court instructed the jury as follows:

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 "The defendant is charged with criminal possession of a firearm by a convicted
felon. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. That the defendant possessed a firearm.
2. The defendant within five years preceding such possession has been
adjudicated a juvenile offender for an act which if done by an adult would
constitute the commission of such felony, to-wit: Battery of a Law
Enforcement Officer.
3. This act occurred on or about the 18th day of October 2019, in Sedgwick
County, Kansas."

Johnson did not object to the jury instruction at trial. Thus, we will only reverse if
the instruction was clear error. See K.S.A. 2021 Supp. 22-3414(3). For a jury instruction
to be clearly erroneous, it must be legally or factually inappropriate and the court must be
firmly convinced the jury would have reached a different verdict if the erroneous
instruction had not been given. The party claiming clear error has the burden to show
both error and prejudice. State v. Crosby, 312 Kan. 630, 639, 479 P.3d 167 (2021).

Johnson argues the jury instruction was clearly erroneous because there is a real
possibility that the outcome would have been different if the correct jury instruction was
given. He notes the only evidence of his juvenile adjudication was the journal entry
which merely listed the statute and did not include factual information. Johnson asks this
court to reverse and remand for a new trial with legally correct instructions.

The State argues that the jury instruction was not erroneous. The State cites the
unpublished Johnson case, which involved the same issue. The court in that case found
that the defendant's argument "was not an accurate statement of Kansas law or the State's
burden of proof." 2020 WL 5587083, at *4. The State argues that because it need not
prove that Johnson was found not to have been in possession of a firearm when he
committed his prior crime, including such language in the elements instruction would be

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improper. The State asserts that even if that language should have been included in the
instruction, Johnson cannot show that the jury would have reached a different verdict had
it been included.

Johnson has not shown us that the jury instruction was clearly erroneous. As noted
above, other panels of this court have held that the State need not prove that a defendant
was not found to be in possession of a firearm at the time of his prior juvenile
adjudication to sustain a conviction for criminal possession of a firearm. See Johnson, 25
Kan. App. 2d at 108; Johnson, 2020 WL 5587083, at *3. And Johnson has not shown that
the outcome of the trial would have been different if the jury instruction was given the
way he proposes.

We will not reverse based on instruction error.

We will not consider Johnson's constitutional argument.

On appeal, Johnson argues that "K.S.A. 21-6301(a)(2)(A)(ii)" is unconstitutional.
No such statute exists. Johnson later says the statute at issue is K.S.A. 2019 Supp. 21-
6301(a)(2). Johnson says that statute criminalizes possession of a firearm by a person
who "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 person felony." Johnson is clearly
referring to K.S.A. 2019 Supp. 21-6304(a)(2), as K.S.A. 2019 Supp. 21-6301(a)(2)
criminalizes use or possession of knives and other dangerous weapons.

Johnson did not challenge the constitutionality of K.S.A. 2019 Supp. 21-6304 in
the district court. Generally, parties may not raise constitutional issues for the first time
on appeal unless they show that one of these exceptions applies:
(1) The claim involves only a question of law arising on proved or admitted facts
and is determinative of the case;

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 (2) the claim is necessary to serve the ends of justice or prevent the denial of
fundamental rights; or
(3) the district court is right for the wrong reason.
State v. Hillard, 315 Kan. 732, 756-57, 511 P.3d 883 (2022).

Johnson argues that the first exception applies here because the issue involves the
constitutional right to bear arms and the constitutionality of any statute is purely a
question of law. He argues that the second exception also applies because it involves his
fundamental right to bear arms.

The State argues that another panel of this court recently refused to address the
same issue for the first time on appeal. State v. Foster, 60 Kan. App. 2d 243, 254, 493
P.3d 283, rev. denied 314 Kan. 856 (2021). The Foster court said the defendant
"offer[ed] only conclusory analysis and provide[d] no legal support for his assertion" that
the first two exceptions applied. The court said that if it allowed routine claims of
exceptions like Foster's, those exceptions would swallow the general rule that
constitutional issues must be raised below. 60 Kan. App. 2d at 254.

We adopt the reasoning of the panel from the unpublished Johnson court that
declined to reach the unpreserved issue of constitutional error because:

"[C]onstitutional questions do not always involve purely legal determinations. Though
the ultimate decision as to whether a law infringes some constitutional provision is a
question of law, constitutional questions—especially novel claims that have not been
before considered—often involve considerable factual development and require the
determination of multiple legal questions along the way. To decide the merits of
Johnson's constitutional claim, this court would need to determine—at a minimum—
whether section 4 provides coextensive protection to the Second Amendment to the
United States Constitution. This is particularly important here because in District of
Columbia v. Heller, 554 U.S. 570, 626, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), the

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 Supreme Court's seminal decision on the scope of the Second Amendment, the Court
emphasized that the Second Amendment does not prohibit restrictions on felons'
possession of firearms." Johnson, 2020 WL 5587083, at *5.

There is simply not enough information in the record to decide this issue, and we
will not entertain the question now for the first time on appeal.

The State admits some prosecutor error in the closing argument.

When we consider such arguments, we look for two things: error and prejudice.
When deciding whether there was error we must answer whether the acts complained
about fall outside the wide latitude afforded prosecutors to conduct the State's case. Did
the acts offend the defendant's constitutional right to a fair trial? If we find error, we must
decide whether the error prejudiced the defendant's due process rights to a fair trial. To
evaluate prejudice, we apply the traditional constitutional harmlessness test: Prosecutorial
error is harmless if the State can show beyond a reasonable doubt that the error
complained of did not affect the outcome of the trial in light of the entire record. State v.
Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

Johnson argues that the prosecutor committed error by using the phrase "we
know" in the closing argument. Although the prosecutor said "we know" several times,
Johnson challenges only two statements. First, when explaining to the jury how it would
know Johnson possessed a shotgun, the prosecution said, "We know this how?" before
recounting its evidence. Second, the prosecution said, "We know that Mr. Johnson's the
one that fired this shotgun."

The State concedes that the second statement ("We know that Mr. Johnson's the
one that fired this shotgun") was error, but argues that it did not prejudice Johnson
because the jury acquitted him of unlawful discharge of a firearm.

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 But the State argues that the prosecutor's first statement ("We know this how?")
was not error because the prosecutor pointed to direct evidence that Johnson possessed
the shotgun, specifically evidence that two officers personally saw him carrying the
weapon. The State notes that Johnson never contested the fact that he was carrying the
shotgun. The defense focused on whether the officers saw Johnson fire the shotgun, not
whether he had it in the first place. In closing argument, the defense only argued there
was no evidence Johnson intentionally possessed the shotgun.

We hold the prosecutor's first "we know" statement was not error because it was
uncontroverted that Johnson was carrying the shotgun. As the State points out, Johnson
did not argue at trial that he did not possess the shotgun. He focused on the lack of
evidence that he fired the shotgun and his level of intent when he possessed the gun.
Thus, the prosecutor was not drawing an inference for the jury or inserting an opinion.
The prosecutor was simply stating uncontroverted evidence.

The prosecutor's second "we know" statement was harmless error. The statement
did not affect the outcome of the trial. It went specifically to the charge of unlawful
discharge of a firearm. The jury acquitted Johnson of that charge. The jury ignored the
prosecutor's statement that "we know Mr. Johnson's the one that fired this shotgun" and
drew its own conclusion based on the evidence.

We find one harmless error. We find no reason to reverse the trial court.

Affirmed.

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