v. Whisler , 2019 COA 126 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 15, 2019
2019COA126
No. 18CA0290, People v. Whisler — Crimes — Possession of
Weapons by Previous Offenders; Affirmative Defenses —
Mistake of Law
A division of the court of appeals holds that a defendant
charged with unlawful possession of a weapon by a previous
offender (commonly referred to as POWPO) cannot raise the defense
of mistake of law based on having passed a background check when
purchasing a firearm.
COLORADO COURT OF APPEALS 2019COA126
Court of Appeals No. 18CA0290
Fremont County District Court No. 16CR724
Honorable Ramsey Lama, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Curtis Edward Whisler,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE J. JONES
Román and Rothenberg*, JJ., concur
Announced August 15, 2019
Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Mallika L. Magner, Alternate Defense Counsel, Crested Butte, Colorado, for
Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Defendant, Curtis Edward Whisler, appeals the judgment of
conviction entered after the trial court found him guilty of
possession of a weapon by a previous offender (POWPO). We affirm.
In so doing, we reject Whisler’s contention that his testimony that
he had passed two background checks when buying two of the guns
at issue entitled him to assert the affirmative defense of mistake of
law as to all of the weapons.
I. Background
¶2 While executing a search warrant of Whisler’s home, a police
officer found methamphetamine and four guns, all of which Whisler
owned. Because Whisler had a prior felony conviction, the People
charged him with a single count of POWPO.
¶3 Before trial, Whisler endorsed the affirmative defense of
mistake of law. He also waived his right to a jury.
¶4 During the bench trial, a police officer testified that he found
the following four firearms in Whisler’s home while executing a
search warrant: a “Charles Day 12-gauge” shotgun, a “Marlin 22
Magnum” rifle, a “410” shotgun, and a “22-caliber Ruger” pistol.
The prosecutor introduced the guns into evidence.
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¶5 Whisler testified in his defense. He admitted that he had a
prior felony conviction for attempted possession of a controlled
substance. And he admitted that he had possessed the four guns.
But he also testified that
• he bought the 12-gauge shotgun at a Walmart in Cañon
City about ten to twelve years earlier after undergoing a
background check;
• he bought the rifle at a Walmart in Salida after
undergoing a background check;
• he bought one of the other two guns from a friend who,
Whisler “imagine[d],” had “probably” conducted a
background check;
• he traded something (he didn’t remember what) to
someone (he didn’t say who) for the fourth gun;
• he believed that he legally possessed all the weapons
because he had passed background checks when he
purchased two of them; and
• he was aware of his constitutional right to bear arms.
¶6 At the close of the evidence, defense counsel argued that
Whisler was entitled to the affirmative defense of mistake of law
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based on section 18-1-504(2)(b) and (c), C.R.S. 2018. Counsel
reasoned that the Colorado Bureau of Investigation (CBI) was
required to deny the transfer of a firearm if it violated state law and,
because Whisler had purchased guns from two gun dealers which
were required to conduct background checks for prior felony
convictions and had passed those background checks, Whisler
reasonably believed that the CBI had given him permission to
possess them.
¶7 The trial court rejected Whisler’s mistake of law defense,
concluding that Whisler couldn’t assert it as a matter of law. It
reasoned that, although Walmart and the CBI had the authority to
approve the sale of a firearm, they did not have the authority to
“grant permission for somebody convicted of a felony to possess a
firearm” so, “even if the background check fail[ed] to reveal a felony
conviction and . . . a subsequent sale occurs,” the possession of the
firearm by the felon was not lawful.
¶8 The court then found Whisler guilty of the POWPO count and
sentenced him to eighteen months of probation.
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II. Mistake of Law
¶9 On appeal, Whisler reiterates his argument that he is entitled
to the affirmative defense of mistake of law because the CBI gave
him permission to possess all the guns when he passed background
checks before purchasing two of them. His argument misses the
mark.
A. Standard of Review and Applicable Law
¶ 10 We review de novo whether a defendant is entitled to assert a
mistake of law defense. People v. Gutierrez-Vite, 2014 COA 159,
¶ 11.
¶ 11 “A mistake of law defense relates to the mistaken belief that
conduct does not, as a matter of law, constitute a criminal offense.”
People v. Lesslie, 24 P.3d 22, 25 (Colo. App. 2000). Generally,
“ignorance of the law or mistake of law is no defense to criminal
prosecution.” People v. Holmes, 959 P.2d 406, 414 (Colo. 1998).
¶ 12 The General Assembly has codified this principle. Section 18-
1-504(2) says that mistake of law is not a defense “unless the
conduct is permitted by” certain law, persons, or entities, and only
then under specified circumstances. Whisler invokes two statutory
exceptions. The first is that a person is relieved of criminal liability
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for conduct that is permitted by “[a]n administrative regulation,
order, or grant of permission by a body or official authorized and
empowered to make such order or grant the permission under the
laws of the state of Colorado.” § 18-1-504(2)(b). The second is that
conduct may be permitted by “[a]n official written interpretation of
the statute or law relating to the offense, made or issued by a public
servant, agency, or body legally charged or empowered with the
responsibility of administering, enforcing, or interpreting a statute,
ordinance, regulation, order, or law.” § 18-1-504(2)(c).
B. Analysis
¶ 13 We conclude that the trial court properly determined that
neither of the statutory exceptions applies to Whisler, as a matter of
law.
¶ 14 Whisler didn’t present any evidence of an administrative
regulation, order, or grant of permission by anyone authorized or
empowered to give such permission that would have permitted him
to possess firearms. The CBI serves as the state point of contact for
the national instant criminal background check system and is
required to deny a background check if the transfer of the firearm
would violate any provision of state law. But in that role, the CBI
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doesn’t grant permission to violate the law; rather, it attempts to
determine whether a person can legally possess a firearm based on
the information available to it. See § 24-33.5-424(2), (3)(a), C.R.S.
2018.
¶ 15 And, even if passing a background check could be construed
as a “grant of permission” by the CBI, that agency doesn’t have the
authority to make an exception to the POWPO statute that would
have allowed Whisler (or any other convicted felon) to possess a
firearm. Whisler cites no authority for the proposition that the CBI
has such authority, and we aren’t aware of any.
¶ 16 Likewise, Walmart, a private entity, didn’t have any authority
to grant Whisler permission to possess a firearm in contravention of
the law. See Rocky Mountain Gun Owners v. Hickenlooper, 2016
COA 45M, ¶ 44 (a licensed gun dealer’s initiation of a background
check “does not make [it] the principal agent of state enforcement
charged with keeping firearms away from criminals”).
¶ 17 As for subsection (2)(c) of section 18-1-504, Whisler didn’t
present any evidence of an “official written interpretation of” the
POWPO statute by anyone empowered to make such an
interpretation giving him permission to possess firearms.
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¶ 18 Under these circumstances, we conclude that Whisler wasn’t
entitled to have the fact finder (in this case, the trial court) consider
the affirmative defense of mistake of law. Cf. Lesslie, 24 P.3d at 24-
25 (the mistake of law defense didn’t apply because, even though
the sheriff had directed the defendant to install an electronic
listening device in the men’s restroom at a bar, “the sheriff was not
an official authorized or empowered to permit the interception and
recording of communications by such a device”).
¶ 19 In so concluding, we necessarily reject Whisler’s argument
that his case is analogous to United States v. Brady, 710 F. Supp.
290 (D. Colo. 1989). In Brady, the defendant was relieved of
criminal liability for possessing a firearm as a convicted felon in
violation of a federal statute because he had relied on the advice
given to him by a state court judge that he could continue to use a
firearm for hunting and trapping in his occupation. Id. at 291-92,
296. The federal district court concluded that the defendant was
entitled to rely on the advice of the judge because the judge had a
constitutional duty to interpret and apply federal law. Id. at 295.
In contrast, though the CBI is required to notify the seller if transfer
of the firearm would violate state law, the CBI doesn’t have any
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authority or duty to interpret, apply, or grant exemptions from the
POWPO statute.
¶ 20 Whisler’s reliance on Cox v. Louisiana, 379 U.S. 559 (1965),
Raley v. Ohio, 360 U.S. 423 (1959), and similar cases is also
misplaced. Those cases, unlike this one, involved factual
circumstances in which the alleged grant of authority came from a
source that had the authority to permit the action. See Cox, 379
U.S. at 569-71 (demonstrators acting with the permission of the
police chief); Raley, 360 U.S. at 437-39 (witnesses acting upon the
advisement of the chairman of the commission before whom they
appeared).
III. Conclusion
¶ 21 The judgment is affirmed.
JUDGE ROMÁN and JUDGE ROTHENBERG concur.
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