A.P.E. v. People

Justice KOURLIS

dissenting:

The majority holds that the prosecution must prove that the defendant intended to use the knife he was concealing in his pants as a weapon in order to be convicted for unlawfully carrying a concealed weapon. I respectfully dissent.

I.

The statute at issue is section 18-12, 101(1)(f), 6 C.R.S. (2000), defining a knife as "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 *1187tearing wounds." The majority reads the statute to mean that, by specifically referring to blades longer than three and one-half inches, the General Assembly intended to exelude shorter knives from the definition of a weapon unless the person carrying it intended to use it as a weapon. Specifically, the majority concludes that all knives are capable of causing cutting, stabbing, or tearing wounds and finding any concealed knife to be per se illegal renders meaningless the General Assembly's statutory blade length distinction. Maj. op. at 1183.

I disagree. First, I would defer to the plain language of the statute and conclude that a "knife" is any "dangerous instrument capable of inflicting cutting, stabbing, or tearing wounds," and that such determination is a question of fact properly resolved by the trial court. Here, the trial court did make that finding and I would defer to it.

Second, I would not superimpose upon the statute any requirement of intent to use the item as a weapon. The majority takes that element from People v. Gross, 830 P.2d 933 (Colo.1992), which I believe has been limited if not overruled in this context by our intervening case law.

A.

Under Colorado law, a person commits a class two misdemeanor if he knowingly and unlawfully "carries a knife concealed on or about his person." $ 18-12-105(1)(a), 6 C.R.S. (2000). The trial judge found that the weapon concealed on A.P.E.'s person was not a knife for purposes of the concealed weapons statute because the blade was less than three and one-half inches. The judge did find, however, that the object fell within the ambit of the statute as "any other dangerous instrument" that could inflict cutting, stabbing, or tearing wounds. See § 18-12-101(1)(8).

Whether the object possessed by APE. constituted a knife or any other dangerous instrument was a question of fact to be determined by the trial judge. J.D.C. v. Dist. Court, 910 P.2d 684, 688 (Colo.1996) (holding that the issue of whether an automobile was a "deadly weapon" pursuant to section 18-1-901(8)(e) was a question for the trier of fact); Hutton v. People, 156 Colo. 334, 338, 398 P.2d 973, 975 (1965) (holding that whether a weapon qualifies as a "dangerous weapon" for purposes of the aggravated assault statute was a question for the jury as the trier of fact). This court consistently defers to trial courts on such questions of fact and overrules a trial court's findings only upon a showing that the record contained no competent evidence to support the trier of fact's determination. People v. D.F., 933 P.2d 9, 14 (Colo.1997).

I view the language "any other dangerous instrument capable of inflicting cutting, stabbing or tearing wounds" to be plain and unambiguous. The language on its face indicates that a variety of weapons other than daggers, dirks, knives or stilettos with blades over three and one-half inches may violate the statute. This comports with the general statutory interpretation of the word "any," which means "all." Austin v. Weld County, 702 P.2d 293, 294 (Colo.App.1985). Additionally, under the principle of ejusdem generis, when a general term follows a specific one, the general term encompasses those items of the same general nature or class as those enumerated. Lyman v. Town of Bow Mar, 188 Colo. 216, 222, 533 P.2d 1129, 1133 (1975). Therefore, the phrase "any other dangerous instrument" should be read inclusively to cover a range of weapons other than those specifically enumerated in the statute, as long as the weapons have the same characteristics as daggers and knives.

Concealed weapons statutes are designed to protect the safety of the public as well as the safety of the person carrying the weapon. See Anderson v. State, 328 Md. 426, 614 A.2d 963, 965 (1992). To further the objective of preserving public safety, the General Assembly may prohibit the concealed carrying of objects other than those commonly understood to be weapons. This court previously has stated that "(there is a need for some generality in describing weapons that can be wielded as knives. ... [T]he articles that may be employed as weapons to inflict cutting, stabbing, or tearing wounds are limited only by the user's imagination and ingenuity." Gross, 830 P.2d at 938 (internal quotations *1188omitted). Therefore, it would be impossible for the General Assembly to draft a statute with absolute precision. See, e.g., People v. Revello, 735 P.2d 487, 491 (Colo.1987) (stating that statutes need not be drafted with mathematical certainty).

This understanding of the statute is consistent with the factual nature of the issue. As the New Jersey Supreme Court noted, "[in using general language, the legislature intended to allow juries and judges to define, through the use of their own community standards and through an evaluation of the relevant facts and cireumstances, what constitutes manifestly inappropriate possession of an object in each individual case." State v. Kelly, 118 N.J. 370, 571 A.2d 1286, 1293 (1990).

Other state courts have read weapons statutes with similar language broadly. See State v. Holloway, 11 Conn.App. 665, 528 A.2d 1176, 1178 (1987) (holding that a dangerous weapon statute should be broadly defined "to include, within its purview, the carrying of any dangerous weapon whether or not specifically listed"); Dorsey v. State, 212 Ga.App. 830, 442 S.E.2d 922, 923 (1994) (construing "any other dangerous or deadly weapon" as a catch-all phrase); State v. Beckert, 144 N.H. 315, 741 A.2d 63, 66 (1999) (stating that in light of the purpose of a statute prohibiting convicted felons of possessing weapons, the statute should not be read as an exhaustive list of the instruments capable of causing harm); Kelly, 571 A.2d at 1292 (finding that a statute should be read inclusively because "a statutory list would potentially fail to filter out makeshift weapons or objects that may be used as weapons"); State v. Vermilya, 423 N.W.2d 153, 155 (N.D.1988) (finding that even a concealed weapons statute without a catch-all phrase such as "any other dangerous instrument" should be read to include weapons other than those specifically named).

After reviewing the record, the court of appeals found evidentiary support for the trial judge's factual finding that the weapon at issue was capable of inflicting cutting, stabbing or tearing wounds. People v. A.P.E., 988 P.2d 172, 175 (Colo.App.1999). I agree that the trial court's finding was fully supported by evidence in the record. The trial court had the opportunity during the trial to view the weapon and assess its characteristics. Although it may not fit the definition of a knife because the blade measures less than three and one-half inches, both the blade and smaller prongs are inherently capable of inflicting cutting, stabbing, or tearing wounds.1 The trial judge also heard testimony from the arresting officer and an expert witness regarding the nature of the weapon. According to the defense's own expert witness, use of the weapon for everyday purposes such as hunting would be awkward due to the brass knuckles design. Therefore, I have no difficulty in concluding that the evidence was sufficient to support the trial judge's conclusion that the weapon, a combination of brass knuckles and a blade, falls squarely within the "any other dangerous instrument" clause of the concealed weapons statute. Because the trial judge's findings were not clearly erroneous, I would affirm his determination.

IL

A.P.E. contends, and the majority agrees, that when a defendant is charged with concealment of a dangerous instrument under the statute, a necessary implied element of such a charge is that the defendant intended to use the instrument as a weapon. The majority reaches that conclusion apparently to avoid an overbroad application of the weapon definition statute that would potentially include objects with innocent purposes, in reliance upon Gross. See 830 P.2d at 941.

In Gross, this court addressed a challenge to section 18-12-101(1)(f)'s definition of "any other dangerous instrument" as unconstitutionally vague and overbroad. Id. at 986. *1189The defendant was charged with possession of a weapon, characterized as a screwdriver. The court concluded that the statute was not vague, because "persons are able to evaluate whether an object is capable of inflicting cutting, stabbing, or tearing wounds so that it is capable of being used as an instrument of offensive or defensive combat, Le., a weapon." Id. at 988. As to the overbreadth challenge, the court expressed concern that the statute as worded could include objects that have innocent and legitimate uses even though they could also be employed as weapons. Id. at 941. In order to avoid such an overbroad application of the statute, the court held that when a defendant is charged with possessing a weapon, the State must prove that the defendant understood that the object possessed was a weapon. Id. Therefore, the court engrafted onto the statute an element of intent, beyond knowing possession. I take issue with Gross and its application to this case on two bases.

A.

First, I believe that Gross is limited to a cireumstance in which the object at issue does not evidence the characteristics of a weapon, unlike the object here. When the object on its face evidences the inherent characteristics of a weapon, no additional intent need be proven.2 Even under Gross, only when the object is something used primarily for everyday, lawful purposes does the State need to prove intent to use the object as a weapon.3 This distinction left the court's previous holding in People v. Tenorio intact. See 197 Colo. 137, 144-45, 590 P.2d 952, 957 (1979). In Tenorio, the defendant possessed a gun in violation of the statute prohibiting possession of weapons by previously convicted felons. Id. at 189, 590 P.2d at 958. This court held that the jury need not be instructed that the defendant intentionally possessed the weapon because the statute expressly required only knowing pos*1190session of the weapon. Id. at 144, 590 P.2d at 957.

Here, the trial court determined that the object found on A.P.E. was primarily intended as an instrument for inflicting cutting, stabbing, or tearing wounds. The court of appeals affirmed the trial court's analysis of the object's primary use. A.P.E., 988 P.2d at 176. The court of appeals determined that because this object was used primarily as a weapon, the State need not prove intent as an element of the charge. Id.

There was sufficient evidence in this record to support the trial court's conclusion that the object found on A.P.E. was a weapon, and that it could inflict cutting, stabbing, and tearing wounds. A vast difference separates a tool with everyday uses such as a screwdriver, from this object. The object's appearance alone suggests its use as a weapon. The defendant's expert witness testified at trial that although this item could be used for skinning an animal, its design would make such an activity awkward. He also testified that the prongs on either side of the main blade served no useful or mechanical purpose, and that their primary function was intimidation. That the blade and sharp prongs were attached to a set of metal knuckles reinforces the conclusion that the object was a weapon rather than a legitimate tool. Because this object had the inherent characteristics of a weapon, the trial court correctly ruled that the State need not prove that A.P.E. intended to use the instrument as a weapon.

B.

More importantly, I believe that Gross has been severely limited or overruled by our recent case law. As to a vagueness challenge, the basic inquiry is whether the "law 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." Robertson v. City & County of Denver, 874 P.2d 325, 333 (Colo.1994). To avoid being unconstitutionally vague, statutory language must give fair warning of the prohibited conduct but still must be "sufficiently general to address the problem under varied cireum-stances and during changing times." Id. at 333-34. If a challenged law threatens to inhibit the exercise of constitutionally protected rights, the statute must comport with a greater degree of specificity. Id. at 884. In my view, section 18-12-101(1)(f) as applied through 18-12-105(1)(a) provides sufficient information to enable a person of common intelligence to determine whether the object they are carrying constitutes a weapon. See id. at 385. Moreover, section 18-12-105's requirement that a person "knowingly conceal" a weapon provides sufficient protection against a person being held erimi-nally responsible for carrying a collector's item on their person.

In People v. Hickman, we addressed the proper scope of an overbreadth analysis. 988 P.2d 628 (Colo.1999). Specifically, we examined whether the term "threat" in seetion 18-8-706, 6 C.R.S. (2000), prohibiting threats against a person protected by statute was overbroad. We found that the statutory proscription of threats did not infringe upon a substantial amount of protected speech. Id. at 686. In that case, we limited over-breadth analysis to First Amendment claims and found that the "substantial overbreadth doctrine applies to constitutional challenges of statutes that prohibit 'pure speech' as well as 'conduct plus speech"" Id. at 635. We found that a proper overbreadth inquiry requires a two prong analysis:

First, the court must determine if the statute at issue encompasses constitutionally protected communications. Second, if the statute extends to protected communications, the court must determine whether the statute extends to a "substantial" amount of protected communication such that the statute is unconstitutional, or whether unconstitutional applications of the statute should be cured on a case-by-case basis. A court has the responsibility to apply a limiting construction or partial invalidation if doing so will preserve the constitutionality.

Id. at 686.

Accordingly, overbreadth analysis is inapplicable to section 18-12-101(1)(f)'s definition of "any other dangerous weapon" applied in *1191section 18-12-105(1)(a) because the statute prohibits only conduct, which is not protected by the First Amendment.

IIL

Therefore, I would hold that the object found on A.P.E. clearly qualifies as "any other dangerous object" for purposes of the concealed weapons statute and no additional proof of intent was necessary. I would affirm the court of appeals and uphold the verdict.

I am authorized to state that Justice BENDER and Justice COATS join in this dissent.

. In this case, the trial court determined that the weapon at issue was not an ordinary knife, but a different kind of weapon consisting of both brass knuckles and a blade. I find that the trial court's characterization of the weapon was supported by evidence in the record. Therefore, I do not reach the question of whether an ordinary knife with a blade of less than three and one-half inches could nonetheless fall within the reach of the concealed weapons statute as "any other dangerous object."

. Defendant claims that if this court declines to require intent to possess the object as a weapon, then possession of a concealed weapon in these circumstances requires no mens rea and is effectively a strict liability crime. Defendant argues that strict liability crimes generally are public welfare offenses carrying minimal penalties, while violation of the concealed weapons statute may carry significant jail time. I would reject Defendant's argument that my view of the case creates a strict liability crime because the statute expressly includes the mens rea requirement that the defendant "knowingly and unlawfully possess the weapon." § 18-12-105.

. Other states have followed a similar rationale, distinguishing circumstances dealing with an object that has an everyday use from objects that are inherently weaponry. See Robinson v. State, 547 So.2d 321, 323 (Fla.Dist.Ct.App.1989) (finding that a razor blade has a constructive social use and was not designed with the purpose of causing great bodily harm, but that it may become a weapon by its use or threatened use); Dorsey, 442 S.E.2d at 923 (holding that a scalpel is not designed as a dangerous weapon, but it may become one under certain circumstances); State v. Watts, 223 N.W.2d 234, 239 (Iowa 1974) (stating that intent was an essential part of the charge when a kitchen knife fell within the scope of a weapons statute as an "other offensive or dangerous weapon"); Anderson, 614 A.2d at 968 (holding that intent was required to reach the conclusion that a utility knife was a concealed weapon); State v. Baldwin, 571 S.W.2d 236, 241 (Mo.1978) (stating that the manner in which a defendant used or carried a weapon for use separated the possession of ordinary and lawful utensils, such as a steak knife, from unlawful weapons); Knight v. State, 993 P.2d 67, 73 (Nev. 2000) (finding that under the circumstances, the defendant intended to carry a steak knife as a weapon); Coleman v. State, 790 S.W.2d 369, 372 (Tex.Crim.App.1990) (holding that intent is required to conclude that a tire knocker is an unlawful club).

Other jurisdictions similarly have dispensed with the intent requirement in situations where the object at issue is obviously a weapon. See People v. Rubalcava, 23 Cal.4th 322, 96 Cal.Rptr.2d 735, 1 P.3d 52, 56 (2000) (holding that the State need not prove intent to use a knife with a three inch blade as a weapon as part of the charge of carrying a concealed weapon); Watts, 223 N.W.2d at 238 (stating that "some weapons carry their dangerous character because so designed and they are per se, deadly, such as hand grenades or bombs"); Vermilya, 423 N.W.2d at 155 (holding that the State need not prove that the defendant intended to use a modified razor as a weapon when the razor was apparently modified to be a weapon). In Vermilya, the defendant possessed a straight razor that had been modified so that the blade was partially serrated and had a honed edge. See 423 N.W.2d at 155. The court found that the modification made the blade unsuitable for shaving and made the blade "peculiarly suitable for use as a weapon, from which its intended use as a weapon is fairly inferable." Id. The court thus concluded that the State need not prove that it was the defendant's purpose to use the razor as a weapon. See id.