County District Court No. 13CR991 Honorable Theresa M.
VACATED IN PART AND AFFIRMED IN PART
Cynthia H. Coffman, Attorney General, Paul Koehler, First
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Britta
Kruse, Deputy State Public Defender, Denver, Colorado, for
Román and Sternberg [*] , JJ., concur.
1 The offense of retaliation against a witness or victim, as
defined in section 18-8-706, C.R.S. 2016, applies to
retaliation against an individual because of that
person's relationship to criminal proceedings. This
appeal requires us to decide whether it also applies to
retaliation against an individual because of that
person's relationship to a civil proceeding. We conclude
that it does not and therefore vacate defendant Burnest Alvis
Johnson's witness retaliation conviction.
2 Johnson also challenges the trial court's denial of his
motions for a mistrial and a new trial. We perceive no error
in those rulings and thus affirm the judgment of conviction
as to his remaining convictions.
3 In February 2013, the Colorado Department of Human Services
(DHS) took custody of Johnson's two children based on
information from Elizabeth Ranals, Johnson's former
4 According to the People's evidence, Johnson and his
girlfriend drove to a DHS office three hours after the
children were removed, but the office was closed. Before
leaving, Johnson fired shots into a vehicle in the parking
lot that appeared similar to the vehicle driven by the DHS
employees who had removed the children hours earlier.
Believing Ranals provided the information that led to the
removal of his children, Johnson drove to her home and fired
several shots into the house. Ranals and two children were
inside the house at the time, but they were not injured.
5 The police arrested Johnson several days later, charging
him with numerous counts, including four counts of attempted
first degree murder and, as pertinent here, retaliation
against a witness or victim.
6 The prosecution's theory in support of the witness
retaliation count was that Johnson shot into Ranals' home
because she had reported him to DHS, and that he believed she
might be a witness in the dependency and neglect proceedings
that "could cause him to lose his children."
7 The jury acquitted Johnson of seven charges, including the
attempted first degree murder counts. The jury convicted him of
the remaining charges, including retaliation against a
witness or victim.
8 Johnson filed a motion for a new trial, which the court
Sufficiency of the Evidence
9 Johnson contends that the offense of retaliation against a
witness, as defined in section 18-8-706, applies only to
retaliation against a witness because of the witness's
relationship to a criminal proceeding. He asserts that
because the prosecution only presented evidence regarding
Ranals' perceived involvement in a civil dependency and
neglect proceeding, his conduct could not have constituted
witness retaliation under this statute. We agree and vacate
Standard of Review
10 Statutory interpretation is a question of law that we
examine de novo. Bostelman v. People, 162 P.3d 686,
689 (Colo. 2007). We also examine de novo whether sufficient
evidence exists to support a conviction. Clark v.
People, 232 P.3d 1287, 1291 (Colo. 2010). Divisions of
this court differ on whether a plain error analysis applies,
as a standard of reversal, to an unpreserved sufficiency
claim premised on a question of law. Compare People v.
McCoy, 2015 COA 76M (declining to analyze under a plain
error standard) (cert granted Oct 3, 2016), with People v
Lacallo, 2014 COA 78 (holding that plain error review
11 We are persuaded by the line of cases holding that a plain
error analysis does not apply to unpreserved sufficiency
claims premised on a question of law We share the serious
concerns raised about the fundamental fairness of applying
plain error review in such cases See, eg, McCoy, ¶ 31
("By this process, questions of statutory
interpretation, such as are at issue here and in Lacallo,
could remain unresolved indefinitely, and by this reasoning,
innocent defendants could also remain in prison
indefinitely"); Lacallo, ¶ 72 (Román, J,
concurring in part and dissenting in part) ("But more
than anything, I fail to see how plain error review is fair
to a defendant who has been convicted despite insufficient
evidence in the record to support the conviction.").
12 In interpreting statutes, our primary task is to give
effect to the intent of the General Assembly.
Bostelman, 162 P.3d at 689. We do so by first
looking to the plain language of the statute. Id. at
690. The language at issue must be read in the context of the
statute as a whole, and a court's interpretation should
give consistent, harmonious, and sensible effect to all parts
of the statutory scheme. Jefferson Cty. Bd. of
Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.
13 If a statute is ambiguous, we may look for guidance in
prior law, statutory history, the legislature's
objective, and even the placement of the statute within a
piece of broader legislation. Id. at 935-36; see
People v. Hickman, 988 P.2d 628, 634-35 (Colo. 1999).
14 Section 18-8-706 provides that an individual commits
retaliation against a witness or victim
if such person uses a threat, act of harassment as defined in
section 18-9-111, or act of harm or injury upon any person or
property, which action is directed to or committed upon a
witness or a victim to any crime, an individual whom the
person believes has been or would have been called to testify
as a witness or victim, a member of the witness'
family, a member of the victim's family, an
individual in close relationship to the witness or
victim, an individual residing in the same household
with the witness or victim, as retaliation or
retribution against such witness or victim.
15 In Hickman, our supreme court construed this
statute in the context of a facial challenge for vagueness
and overbreadth. The court upheld the statute's
constitutionality on the vagueness challenge, concluding that
"the statute by the plain meaning of its terms requires
the defendant to have . . . the specific intent to retaliate
or to seek retribution against a person protected by the
statute because of that person's relationship to a
criminal proceeding." 988 P.2d at 645. However, this
conclusion addressed only the narrow issue of whether the
1992 amendments to the statute removed its specific intent
requirement, causing impermissible overbreadth or vagueness.
16 We must resolve a question not directly addressed in
Hickman. Did the General Assembly intend the statute
to only protect persons because of their relationship to
criminal, and not civil, proceedings?
17 We first turn to the plain language to discern the
legislative intent. The statute identifies different
classifications of persons protected under it. These
protected persons include not only "a witness or a
victim to any crime, " but also "an
individual whom the [defendant] believes has been or would
have been called to testify as a witness or a victim, "
a family member of "the" witness or victim, and a
person in a close personal relationship ...