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People v. Johnson

Court of Appeals of Colorado, Fifth Division

January 26, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Burnest Alvis Johnson, Defendant-Appellant.

         El Paso County District Court No. 13CR991 Honorable Theresa M. Cisneros, Judge.


          Cynthia H. Coffman, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          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.

         I. Background

         ¶ 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 friend.

         ¶ 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.[1] The jury convicted him of the remaining charges, including retaliation against a witness or victim.[2]

         ¶ 8 Johnson filed a motion for a new trial, which the court denied.

         II. 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 his conviction.

         A. 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 applies)[3]

         ¶ 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.").

         B. Statutory Interpretation

         ¶ 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. 2010).

         ¶ 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).

         C. Section 18-8-706

         ¶ 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.

(Emphasis added.)

         ¶ 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 ...

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