People Ex Rel. Or
O.R., a juvenile, appeals the juvenile court‘s judgment of delinquency entered on its finding that O.R. committed acts that, if committed by an adult, would constitute the offense of carrying a concealed weapon. Specifically, O.R. argues that the court erred in concluding that a firearm that was partially concealed but readily discernible as a firearm was “concealed” for purposes of section
I. Facts
When viewed as a whole and in the light most favorable to the prosecution, the evidence establishes the following facts:
A police officer, responding to a report of a man with a gun possibly trying to sell it on the streets, located O.R., who fit the description of the suspect, and chased him on foot. The officer could see “[a] silver object which appeared to be a handgun in [O.R.‘s] left rear pocket.” The officer testified that O.R. was holding the gun down with his hand on the outside of his rear pocket. The officer, however, could see the “end of a pistol” and never lost sight of it until the O.R. threw the
After hearing evidence at trial, the juvenile court found that the arresting officer saw a silver object sticking out of O.R.‘s left rear pocket that the officer recognized to be the end of a pistol. The court determined, however, that to be “concealed” for purposes of section
II. Analysis
We begin our review of the juvenile court‘s finding by acknowledging that “[t]he question of whether a weapon is concealed is a question of fact.” People v. Vincent, 628 P.2d 107, 110 (Colo.1981). The threshold question of whether a partially concealed but readily discernible firearm can constitute a “concealed” weapon for purposes of section
As relevant here, a person commits the crime of carrying a concealed weapon if he “[c]arries a firearm concealed on or about his . . . person.”
Appellate courts “frequently look[] to the dictionary to ascertain the meaning of undefined words in a statute.” People v. Thoro Prods. Co., 70 P.3d 1188, 1194 (Colo. 2003). Indeed, another division of this court consulted a dictionary when interpreting the term “conceal” in a different context:
Webster‘s Third New International Dictionary 469 (1986) defines “conceal” as “(1) to prevent disclosure or recognition of: avoid revelation of: refrain from revealing: withhold knowledge of: draw attention from: treat so as to be unnoticed . . . (2) to place out of sight: withdraw from being observed: shield from vision or notice.”
McGee v. Hardina, 140 P.3d 165, 168 (Colo. App.2005) (construing term as used in section
Such a definition is consistent with the prosecution‘s assertion here that, generally, the test of concealment is “whether a weapon is so carried as not to be discernible by ordinary observation.” State v. McNary, 100 Idaho 244, 596 P.2d 417, 420 (1979); see also Dorelus v. State, 747 So.2d 368, 371-72 (Fla. 1999) (although question of concealment is ordinarily an issue for the trier of fact, statement by an observing police officer that he or she was able to “immediately recognize” the questioned object as a weapon may conclusively demonstrate, as a matter of law, that the weapon was not concealed because it was not hidden from ordinary observation); Ensor v. State, 403 So.2d 349, 354 (Fla.1981) (although absolute invisibility is not a necessary element to a finding of concealment, the firearm must be hidden from the casual and ordinary observation of another; “[t]he critical question turns on whether an individual, standing near a person with a firearm . . ., may by ordinary observation know the questioned object to be a firearm“); Reid v. Commonwealth, 298 Ky. 800, 184 S.W.2d 101, 102 (1944) (defendant who had a pistol stuck in his belt did not violate concealed weapon statute, even though accusing witness was behind defendant and did not see the pistol until defendant turned around); State v. Reams, 121 N.C. 556, 27 S.E. 1004, 1006 (1897) (in overturning conviction where jury was instructed that if any part of pistol was concealed it is an indictable offense, court stated, “If the weapon is partly exposed to public view, it would be difficult and unreasonable
Applying the plain and ordinary meaning of the statutory language here, we conclude that “concealed” for purposes of section
In this case, the juvenile court did not find that the gun was placed out of sight so as not to be discernible by ordinary observation. Moreover, to the extent that the court‘s findings could be read to suggest that the gun was completely concealed, neither the evidence at trial nor the reasonable inferences therefrom support such a determination. To the contrary, the officer who chased O.R. testified without contradiction that (1) he saw a silver object that appeared to be a handgun in O.R.‘s left rear pocket, (2) O.R.‘s hand was on the pocket and not above, where the gun was sticking out, (3) he could see the end of the pistol, and (4) he never lost sight of it until O.R. threw the gun away.
For these reasons, we conclude that the juvenile court erred in determining that a partially concealed but readily discernible firearm is “concealed” for purposes of section
Because O.R. is not subject to retrial, we need not address his remaining claims. See People in Interest of T.M., 742 P.2d 905, 908 (Colo.1987) (double jeopardy protections apply to juvenile adjudicatory proceedings); People v. Stanley, 56 P.3d 1241, 1245-46 (Colo.App.2002) (appellate court‘s determination that trial evidence was insufficient bars retrial).
The judgment is reversed, and the case is remanded with directions to dismiss the delinquency petition.
Judge VOGT and Judge RUSSEL concur.