People v. DeWitt, 2011 Colo. App. LEXIS 1523

Background

On Sept. 18, 2009, DeWitt, a twice-convicted felon, carried a firearm and created a disturbance at a King Soopers, causing an employee to call 911.
Police arrested him for two POWPO counts after confirming prior felonies: 1985 false information to a pawnbroker and 1988 attempted distribution of a controlled substance.
He was charged with two POWPO counts and one menacing count; the menacing count was dismissed, and a jury convicted him on both POWPO counts.
The trial court sentenced him to six months for each POWPO count, to run concurrently.
The defense challenged the amended POWPO statute as applied to him on ex post facto and due process grounds; the court addressed preservation and standard of review.
The court found error in not instructing on an affirmative defense—bearing arms for defense of home/person/property—and remanded for a new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ex post facto application of POWPO	DeWitt contends amendment is retrospective as applied to pre-1994 felonies.	DeWitt argues amendment imposes new punishment for acts completed before enactment.	Not an ex post facto violation; conduct occurred after enactment.
Due process notice for amended statute	Shave of notice not required beyond publication; adequacy of notice through publication.	DeWitt argues lack of notice of changes affecting gun rights.	Due process satisfied by publication; no error found.
Affirmative defense—right to bear arms	No credible evidence of defense of home/person, so no instruction required.	There is credible evidence he possessed the gun for self-defense; jury should decide.	Court erred in refusing instructions; defendant entitled to jury determination; remanded for new trial.
Mental state application to prior conviction element	Knowingly should apply to all elements, including prior conviction.	Knowingly applies only to possession element; prior conviction element is not so limited.	Knowingly applies only to possession element; prior conviction element not within its scope.
Consolidated POWPO convictions and potential double jeopardy	Two POWPO convictions stem from same incident; may need merger.	Convictions may merge to avoid multiple punishments for same offense.	Convictions may merge on remand if re-tried; remand for new trial consistent with opinion.

Key Cases Cited

People v. Cagle, 751 P.2d 614 (Colo.1988) (as-applied challenges reviewed in plain error/precedent context)
People v. Greer, 262 P.3d 929 (Colo.App.2011) (plain error review of unpreserved claims)
Hinojos-Mendoza v. People, 169 P.3d 662 (Colo.2007) (de novo review for constitutional questions)
People v. Devorss, 277 P.3d 829 (Colo.App.2011) (efficiency considerations in expedited review)
Wood v. Beatrice Foods Co., 813 P.2d 821 (Colo.App.1991) (undeveloped factual scenarios and plain terms in early standards)
People v. Patrick, 772 P.2d 98 (Colo.1989) (when record is incomplete, can’t resolve all facts on appeal)
Weaver v. Graham, 450 U.S. 24 (U.S.1981) (ex post facto prohibition and notice considerations)
Billips, 652 P.2d 1060 (Colo.1982) (ex post facto analysis framework)
Gasper v. Gunter, 851 P.2d 912 (Colo.1993) (retrospective analysis of statute punishment)
Tenorio, 197 Colo. 137 (Colo.1979) (prior conviction element as fact; 'knowingly' applies to possession element)
People v. Cross, 127 P.3d 71 (Colo.2006) (statutory-interpretation rules regarding mens rea application)
Copeland v. People, 2 P.3d 1283 (Colo.2000) (intent to limit application of mental-state provisions)
People v. Allaire, 843 P.2d 38 (Colo.App.1992) (conviction element interpretation for POWPO-like offenses)
People v. Ford, 568 P.2d 26 (Colo.1977) (affirmative defense for possession of weapon for defense)
People v. Allen, 111 P.3d 518 (Colo.App.2004) (purpose of POWPO statute and public-safety rationale)
State v. Johnson, 128 Ohio St.3d 107 (Ohio 2010) (statutory mens rea for additional elements not required)