v. Johnson

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
July 29, 2021
2021COA102
No. 18CA1212, People v. Johnson — Crimes — Unlawful
Purchase of Firearms
As a matter of first impression, a division of the court of
appeals interprets the meaning of “transfer” in section
18-12-111(1), C.R.S. 2020 — the “straw purchaser” statute. The
division concludes that a “transfer” for purposes of section
18-12-111(1) occurs when a person knowingly purchases a firearm
for the purpose of sharing it with an ineligible person. Accordingly,
the division affirms the defendant’s judgment of conviction.
COLORADO COURT OF APPEALS 2021COA102
Court of Appeals No. 18CA1212
Adams County District Court No. 17CR2274
Honorable Donald S. Quick, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sylvia Johnson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE LIPINSKY
Román and Harris, JJ., concur
Announced July 29, 2021
Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 The General Assembly enacted Colorado’s “straw purchaser”
statute following the revelation that adults had sold guns to the
teenagers who opened fire on fellow students and teachers at
Columbine High School. After Columbine, the legislature enacted
section 18-12-111(1), C.R.S. 2020, to prevent “straw purchasers”
from obtaining firearms for persons who could not legally possess
them. The statute imposes criminal liability for knowingly
“purchas[ing] or otherwise obtain[ing] a firearm on behalf of or for
transfer to a person who the transferor knows or reasonably should
know is ineligible to possess a firearm . . . .” Id. Section
18-12-111(1) does not include a definition of “transfer.”
¶2 In this case, we consider whether a “transfer” under section
18-12-111(1) occurs when a person knowingly purchases a firearm
for the purpose of sharing it with an ineligible person.
I. Introduction
¶3 Sylvia Johnson appeals from a judgment of conviction entered
on a jury verdict finding her guilty of unlawful purchase of a firearm
pursuant to section 18-12-111(1).
¶4 The prosecution argued at trial that Johnson violated the
statute by purchasing a firearm with Jaron Trujillo, whom she
1
described as her common law husband and who was ineligible to
possess the firearm, and then storing it in a closet where Trujillo
could access it. Johnson contends that the statute does not apply
to her because she did not buy a firearm on someone else’s behalf
while falsely claiming it was for herself, or that she “intentionally
fronted for another” and thereby played a “conscious, willing role of
the middleman.” She asserts that, under her interpretation of
section 18-12-111(1), there was insufficient evidence to support her
conviction.
¶5 Because we disagree with Johnson’s reading of section
18-12-111(1), we hold there was sufficient evidence to support
Johnson’s conviction. We also disagree with Johnson’s other
contentions of error. For these reasons, we affirm the judgment of
conviction.
II. Background
¶6 Johnson knew that Trujillo could not legally possess a firearm
under the terms of a protection order entered against him and
because he was a convicted felon. With this knowledge, Johnson
visited a pawnshop with Trujillo. At the pawnshop, Trujillo
2
examined firearms available for sale and Johnson purchased a
firearm.
¶7 Sixteen days after Johnson purchased the firearm, a police
officer responded to a call from the management of Johnson’s
apartment complex reporting that Trujillo was staying at Johnson’s
apartment in violation of the protection order. The protection order
barred Trujillo from entering the apartment complex, as well as
from “possess[ing], purchas[ing], or control[ling]” a firearm.
¶8 After observing Trujillo leave Johnson’s apartment to smoke a
cigarette, the officer arrested him for violating the protection order.
The officer asked Trujillo whether he had any weapons. Trujillo
acknowledged he had a gun in his pocket and said that it belonged
to Johnson.
¶9 Johnson was charged with violating section 18-12-111(1). At
her trial, the prosecution called Trujillo as a witness and asked him
whether he and Johnson had intended to purchase a firearm at the
pawnshop. Trujillo responded that he and Johnson went to the
pawnshop to buy jewelry. But on cross-examination, Trujillo
responded affirmatively to defense counsel’s question, “[D]id you go
to the pawnshop because Ms. Johnson wanted to purchase a gun?”
3
On redirect examination, the prosecutor asked Trujillo to reconcile
these conflicting statements:
Q. So I will ask you, sir, why did you go to the
pawn shop?
A. Could be because she wanted a gun and
also jewelry. I don’t remember that day. I
honestly don’t remember.
¶ 10 When the questioning turned to how Trujillo had obtained the
firearm, he testified that he knew Johnson kept it in her closet.
Although Trujillo asserted that he did not remember whether
Johnson told him where she stored the firearm, he said he knew
Johnson kept it in the closet so it would not “be in reach” of their
children. Trujillo explained that he and Johnson had previously
stored other guns at that location. Neither Trujillo nor Johnson
testified that Johnson warned Trujillo not to take the firearm.
Trujillo said he took the firearm while Johnson was away from the
apartment.
¶ 11 Johnson testified that she purchased the firearm for herself
and never gave it to Trujillo. But she also said she told Trujillo
where she stored the firearm. She admitted that Trujillo lived with
her and the children in the apartment, even though he was not
4
allowed to enter the apartment under the terms of the protection
order.
¶ 12 In addition, Johnson conceded that she was aware the
protection order barred Trujillo from “possess[ing], purchas[ing], or
control[ling] a firearm or other weapons” and that, as a convicted
felon, Trujillo “was not allowed to possess a firearm.” The jurors
also heard a recording of a phone call that Trujillo made to Johnson
from jail about seven months before Johnson and Trujillo visited
the pawnshop. During that call, Trujillo told Johnson he had been
convicted of a felony.
¶ 13 During cross-examination, the prosecutor pressed Johnson on
her reasons for purchasing the firearm:
Q. So you were concerned about Mr. Trujillo’s
safety and especially when he would smoke
cigarettes on this balcony; is that correct?
A. In all reality, sir, I was concerned about my
whole family’s safety.
Q. And that’s not what I’m asking you, Ms.
Johnson. . . . Yes or no, you were concerned
about Mr. Trujillo’s safety when –
A. Yes, I was.
Q. – he was outside smoking?
A. Yes, I was.
5
¶ 14 Johnson raises three arguments on appeal. First, she asserts
there was insufficient evidence to support her conviction because a
“transfer” for purposes of section 18-12-111(1) requires more than
merely providing the ineligible person with access to the firearm.
Second, she contends that the trial court reversibly erred by
allowing the prosecutor to ask Trujillo whether defense counsel had
previously represented him. Third, Johnson argues that section
18-12-111(1) is unconstitutionally vague on its face and as applied.
III. The Record Contains Sufficient Evidence to Support Johnson’s
Conviction for Violating Section 18-12-111(1)
A. The Plain Meaning of Section 18-12-111(1)
¶ 15 We review issues of statutory interpretation de novo. People v.
Subjack, 2021 CO 10, ¶ 14, 480 P.3d 114, 117. In construing the
meaning of a statute, we must interpret its plain language to
ascertain and give effect to the General Assembly’s intent. Id.When the words and phrases of a statute are clear, we read them in
context, construe the language according to its common usage, and
apply the statute as written. Manjarrez v. People, 2020 CO 53,
¶ 19, 465 P.3d 547, 550-51.
6
¶ 16 We focus our analysis of section 18-12-111(1) on the meaning
of “transfer” because, for reasons unrelated to the issues raised on
appeal, Johnson, the prosecutor, and the trial court agreed to
provide the jury with an instruction that referred to “for transfer to”
in place of the more expansive “on behalf of or for transfer to”
statutory language. While we acknowledge that “[s]ufficiency of
evidence is measured ‘against the elements of the offense, not
against the jury instructions,’” People v. Helms, 2016 COA 90, ¶ 52,
396 P.3d 1133, 1146 (quoting People v. Vigil, 251 P.3d 442, 447
(Colo. App. 2010)), we cannot decide a factual issue not presented
to the jury — here, whether Johnson purchased the firearm “on
behalf of” Trujillo.
¶ 17 Johnson’s contention that section 18-12-111(1) does not apply
to her because she did not (1) act as a “straw purchaser” by buying
a gun on someone else’s behalf while falsely claiming it was for
herself and (2) play a “conscious, willing role of the middleman” is
inconsistent with the language of the statute for two reasons. First,
nothing in section 18-12-111(1) requires that the defendant falsely
claim the firearm was for himself or herself. Second, Johnson relies
on legislative history referring to the “role of the middleman” to
7
narrow the statute’s scope. As explained below, however, we need
not rely on legislative history to interpret the statute because its
language is unambiguous. Further, a court may not vary the
language of a statute by referring to legislative history. See Mitchell
v. Chengbo Xu, 2021 COA 39, ¶ 37, ___ P.3d ___, ___ (Lipinsky, J.,
specially concurring) (noting that, where statutory language is plain
and concise and the meaning is clear, a court should not vary that
meaning by resort to legislative history).
¶ 18 In addition, Johnson supports her argument by pointing to
definitions of “transfer” that she contends do not encompass the act
of merely providing access to the subject item. For example, she
cites to Chow v. State, 903 A.2d 388 (Md. 2006), which addressed
the meaning of “transfer” in the 2002 version of the Maryland
firearm application statute. The Maryland statute stated, in
relevant part, that “[a] person who is not a regulated firearms dealer
may not sell, rent, transfer, or purchase any regulated firearm until
after 7 days shall have elapsed from the time an application to
purchase or transfer shall have been executed . . . .” See Chow,
903 A.2d at 394 (quoting Md. Code (1957, 1996 Repl. Vol., 2002
Supp.), Art. 27, § 442(d)(1)). Based on its review of the language of
8
other Maryland firearms statutes, the Chow court concluded that
“transfer” in the Maryland firearm application statute meant a
permanent conveyance. Id. at 402.
¶ 19 But the court’s reasoning in Chow does not apply to our
interpretation of section 18-12-111(1). The statutory scheme in
which section 18-12-111(1) appears compels a broader reading of
“transfer” in that statute than the meaning of the word in the
Maryland statute.
¶ 20 The Colorado analogues to the Maryland firearm statutes are
found in article 12 of title 18 of the Colorado Revised Statutes,
which addresses “Offenses Relating to Firearms and Weapons.” We
look to the other statutes within article 12 to inform our analysis of
the meaning of “transfer” in section 18-12-111(1). See People v.
Roletto, 2015 COA 41, ¶ 18, 370 P.3d 190, 194 (“When we interpret
related statutes, it is important that we harmonize their meanings
and interpret their words consistently.” (quoting Gen. Elec. Co. v.
Niemet, 866 P.2d 1361, 1366 (Colo. 1994))).
¶ 21 Section 18-12-112, C.R.S. 2020, establishes that the General
Assembly gave “transfer” a broad definition for purposes of the
prohibition against the “transfer” of firearms by “straw purchasers.”
9
Section 18-12-112, which addresses private firearm transfers,
includes a background check requirement for transfers or attempts
to transfer firearms by persons who are not licensed gun dealers.
Section 18-12-112(6) specifies that this background check
requirement does not apply to temporary transfers of firearms,
including “[a] transfer that is a bona fide gift or loan between
immediate family members . . . .” § 18-12-112(6)(b) (emphasis
added). In addition, section 18-12-112(6)(d) confirms that, subject
to conditions not applicable here, a “transfer” of a firearm can be
“temporary” and can “occur . . . in the home of [an] unlicensed
transferee.” See also § 18-12-112(6)(e) (referring to “[a] temporary
transfer of possession without transfer of ownership or a title to
ownership”) (emphasis added); § 18-12-112(6)(g) (referring to “[a]ny
temporary transfer that occurs while in the continuous presence of
the owner of the firearm”) (emphasis added); § 18-12-112(6)(h) (“[a]
temporary transfer for not more than seventy-two hours”) (emphasis
added). The language of these statutes indicates that the General
Assembly did not carve out from the scope of section 18-12-111(1)
temporary transfers of a firearm in the form of shared use.
10
¶ 22 Johnson next turns to the Merriam-Webster dictionary
definition of “transfer” to support her reading of section
18-12-111(1). As she acknowledges, that dictionary’s definition of
the verb “transfer” includes
1. a: to convey from one person, place, or
situation to another: MOVE, SHIFT
b: to cause to pass from one to another:
TRANSMIT
...
2. : to make over the possession or control of:
CONVEY
Merriam-Webster Dictionary, https://perma.cc/FHA7-MJAC. The
definition of the noun “transfer” in the dictionary includes “an act,
process, or instance of transferring.” Id. Thus, the dictionary
definition of “transfer” on which Johnson relies, like the use of
“transfer” in the subsections of section 18-12-112, includes the
temporary transfers that occur when a shared item is conveyed,
moved, or shifted between the users.
B. Analysis
¶ 23 We next consider whether, based on this interpretation of
“transfer,” there was sufficient evidence to support Johnson’s
conviction under section 18-12-111(1). The de novo standard of
11
review applies to determinations of the sufficiency of the evidence.
People v. Hines, 2021 COA 45, ¶ 31, ___ P.3d ___, ___. We conclude
there was sufficient evidence to support Johnson’s conviction.
¶ 24 In reviewing the sufficiency of the evidence, we evaluate
“whether the relevant evidence, both direct and circumstantial,
when viewed as a whole and in the light most favorable to the
prosecution, is substantial and sufficient to support a conclusion
by a reasonable mind that the defendant is guilty . . . beyond a
reasonable doubt.” Clark v. People, 232 P.3d 1287, 1291 (Colo.
2010) (citation omitted). We afford the prosecution the benefit of
every reasonable inference that may fairly be drawn from the
evidence. Id. at 1292.
It is the fact finder’s role to weigh the
credibility of witnesses, to determine the
weight to give all parts of the evidence, and to
resolve conflicts, inconsistencies, and disputes
in the evidence. We may not “substitute [our]
judgment for that of the jury and reweigh the
evidence or the credibility of witnesses.”
People v. Poe, 2012 COA 166, ¶ 14, 316 P.3d 13, 16 (citations
omitted) (quoting People v. Sharp, 104 P.3d 252, 256 (Colo. App.
2004)).
12
¶ 25 One of the key pieces of evidence at trial was a security video
showing Johnson’s purchase of the firearm at the pawnshop. The
video, which is silent, depicts
 two individuals, identified as Johnson and Trujillo,
walking up to a counter in the pawnshop together;
 Trujillo examining various firearms and holding one; and
 Johnson paying for a firearm, receiving it from the
pawnshop employee, and walking off with Trujillo.
¶ 26 In addition, as explained in supra Part I, the record establishes
that Johnson was aware at the time she purchased the firearm that
Trujillo could not possess it under the terms of the order for
protection and because of his felony conviction.
¶ 27 Despite knowing that Trujillo could not legally possess a
firearm, Johnson testified that she purchased it because of general
safety concerns regarding her family, including safety concerns
regarding Trujillo. Further, Trujillo testified that Johnson stored
the firearm in her closet and that, while Johnson was at work, he
took the firearm, placed it in his pocket, and left the apartment.
¶ 28 The definitions of “transfer” discussed supra Part III.A
demonstrate that section 18-12-111(1) is unambiguous because it
13
is not “susceptible of multiple reasonable interpretations.” People v.
Raider, 2021 COA 1, ¶ 14, ___ P.3d ___, ___. The definitions
demonstrate that Johnson knowingly purchased the firearm for the
purpose of “transferring” it to Trujillo. Johnson kept the firearm at
a location where both she and Trujillo could access it; they shared
possession of the firearm. Johnson and Trujillo “transferred” the
firearm by conveying, moving, and shifting it between themselves.
Thus, a “transfer” of the firearm occurred when Trujillo picked it up
from the closet, where Johnson had left it.
¶ 29 We conclude that the evidence, viewed in the light most
favorable to the prosecution, allowed the jury to reasonably infer
that Johnson purchased the firearm with the knowledge that
Trujillo, who she was aware could not lawfully possess it, would
access it to protect himself. This constituted a knowing purchase of
a firearm for the purpose of “transferring” it to an ineligible person
under section 18-12-111(1). For these reasons, we hold there was
sufficient evidence to support Johnson’s conviction. See People v.
Grant, 174 P.3d 798, 812 (Colo. App. 2007) (noting that, “where
reasonable minds could differ, the evidence is sufficient to sustain a
conviction”).
14
IV. Prior Representation
¶ 30 Johnson argues that the trial court erred by allowing the
prosecutor to ask Trujillo whether defense counsel had previously
represented him. She asserts that this question was irrelevant and
improperly intended to create the impression that defense counsel
had a conflict of interest.
A. Additional Background
¶ 31 During redirect examination, Trujillo denied having met
Johnson’s lawyer before the trial. The prosecutor then asked
Trujillo whether Johnson’s lawyer had represented him at two court
dates. Before Trujillo could answer, defense counsel objected on
grounds of relevance and asked to approach the bench. Outside
the presence of the jury, defense counsel expressed concern that
the prosecutor was attempting to create the impression that she
had a conflict of interest because she was representing Johnson
after having previously represented Trujillo. Although she objected
to the prosecutor’s question, defense counsel did not ask the court
to advise the jurors that she did not have a conflict of interest.
¶ 32 The prosecutor responded that his question was relevant
because Trujillo’s prior relationship with Johnson’s lawyer could
15
establish that Trujillo was biased towards the defense. The
prosecutor argued that he should be permitted to demonstrate that
this bias affected the credibility of Trujillo’s testimony on
cross-examination, in which he “agreed with literally everything
[defense counsel] has told in detail.”
¶ 33 The court expressed concern about “bringing in any
association” between defense counsel and Trujillo. After the
colloquy with the attorneys, the court sua sponte instructed the
jurors that defense counsel did not have a conflict of interest
because of her prior representation of Trujillo. After the judge gave
this instruction, the prosecutor did not ask Trujillo any further
questions about his previous relationship with Johnson’s lawyer.
¶ 34 As Trujillo was about to step out of the witness box, defense
counsel asked the court, outside the presence of the jury, whether
she could ask Trujillo about her representation of him. The court
agreed. Accordingly, on recross-examination, she asked Trujillo one
further question: “[a]t the time that I stepped in and covered for you
on your previous matter, . . . [another attorney] was actually your
attorney of record . . . ?” Trujillo responded affirmatively.
16
B. Any Error Resulting from the Statements Regarding Defense
Counsel’s Prior Representation of Trujillo Was Harmless
¶ 35 We need not determine whether the statements regarding
defense counsel’s prior representation of Trujillo constituted error
because, even if they did, such error was harmless. See Hagos v.
People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119 (“[R]eversal is required
only if the error affects the substantial rights of the parties.”).
¶ 36 We initially note that no error occurred when the prosecution
asked Trujillo whether defense counsel had previously represented
him. A trial court can only err by admitting evidence if evidence
was actually admitted. The prosecutor’s question to Trujillo about
defense counsel’s prior representation of him did not result in the
admission of evidence because Trujillo never answered the
question. See People v. Thompson, 950 P.2d 608, 614 (Colo. App.
1997) (holding that no evidence was introduced through the
prosecutor’s question because defense counsel objected before the
witness could answer the question); see also United States v. Miller,
562 F. App’x 272, 303 (6th Cir. 2014) (“[N]o actual violation of the
rules of evidence occurred here, as a lawyer’s unanswered question
is not evidence.”).
17
¶ 37 The jury then learned from the trial court that defense counsel
had previously represented Trujillo. In response to defense
counsel’s assertion that the prosecutor was “trying to show some
sort of a conflict,” the court provided the jury with the cautionary
instruction that defense counsel did not have a conflict of interest,
even though defense counsel did not request such an instruction.
At the time the prosecutor concluded his redirect examination of
Trujillo, the jury had heard no evidence that defense counsel had
previously represented him — it had only heard the prosecutor’s
unanswered question to Trujillo and the court’s instruction noting
that defense counsel’s prior representation of Trujillo did not create
a conflict of interest.
¶ 38 The jury did not hear any further statements regarding
defense counsel’s prior representation of Trujillo until defense
counsel asked Trujillo about that representation on
recross-examination. Trujillo’s response to that question shed little,
if any, light on the prosecutor’s assertion to the court that such
brief representation gave Trujillo an incentive to testify favorably to
the defense. Although the prosecutor suggested during his colloquy
with the court that defense counsel may have “spoon fed” answers
18
to Trujillo, the jury never heard any statement about “spoon
feeding.” And the prosecutor never again referred to defense
counsel’s representation of Trujillo and did not mention the issue
during his closing argument.
¶ 39 But, more fundamentally, Johnson’s argument regarding the
statements about defense counsel’s prior representation of Trujillo
ignores the obvious point that the jury knew that Trujillo and
Johnson considered themselves married and were raising four
children together. Thus, Trujillo’s alleged bias in favor of the
defense resulting from defense counsel’s prior representation of him
paled in comparison to any bias resulting from Trujillo’s marital
relationship with Johnson, the defendant. In any criminal case
where a husband is called to testify against his wife and the mother
of their children, jurors could reasonably conclude the husband is
biased because he does not want to see his wife convicted.
¶ 40 For these reasons, the fleeting statements the jury heard
about defense counsel’s prior representation of Trujillo could not
have “substantially influenced the verdict or affected the fairness of
the trial proceedings.” Hagos, ¶ 12, 288 P.3d at 119 (quoting Tevlin
v. People, 715 P.2d 338, 342 (Colo. 1986)); see People v. Sauser,
19
2020 COA 174, ¶ 75, ___ P.3d ___, ___ (holding that any error
resulting from a single, fleeting reference to inadmissible evidence
was harmless). Thus, even if the court erred by allowing the jury to
hear these statements, such error was harmless.
¶ 41 For the above reasons, we reject Johnson’s contention that the
information the jury heard about defense counsel’s earlier
representation of Trujillo requires reversal of her conviction.
V. Constitutionality of Section 18-12-111(1)
¶ 42 Johnson further argues that section 18-12-111(1) is
unconstitutional because it is vague on its face and as applied to
her. Specifically, Johnson contends that the statute is vague on its
face because the criminal code lacks a definition of “transfer.” We
disagree.
¶ 43 The parties agree that Johnson did not preserve her
constitutional challenge to section 18-12-111(1) in the trial court
but disagree whether Johnson waived the argument. Specifically,
the People contend that a waiver occurred when defense counsel
argued that the court should not give the jury an instruction
defining “transfer.” We agree with the People.
20
A. Additional Background
¶ 44 At trial, defense counsel resisted the prosecutor’s attempt to
provide the jury with a definition of “transfer.” During its
deliberations, the jury submitted a question asking, “[W]hat is, if
there is a legal definition, of a transfer of a firearm or otherwise?”
The court discussed the question with the lawyers.
¶ 45 The court advised the lawyers that it had found a definition of
“transfer” in the Merriam-Webster dictionary but could not find a
case defining the word. The court suggested that it respond to the
jury’s question by saying, “I understand your question, but you
received the instructions of law.”
¶ 46 The prosecutor urged the court to instruct the jurors to use
their common sense or best judgment to define “transfer.” He
expressed concern about an answer to the jurors’ question that
suggested “transfer” lacks a definition. The court responded that, if
it provided the jurors with a definition of “transfer,” they may
respond with a further question — “What does that mean?”
¶ 47 The prosecutor then asked the court to give an instruction on
“the everyday meaning or something to that extent.” Defense
counsel opposed this suggestion, asserting that the court should
21
tell the jurors, “you have been given all the instructions as is.” The
court said it would instruct the jurors “there is no statutory
definition of transfer in the context of transfer of a firearm. . . .
[T]hey have received the instructions they may use.”
¶ 48 The prosecutor responded that, based on Leonardo v. People,
728 P.2d 1252 (Colo. 1986), “if the jury asks a question that shows
it does not understand an element or some other matter of law
central to the case, the trial court has an obligation to clarify the
matter in a concrete and unambiguous manner.” However, the
court concluded that, in the absence of a statutory definition of
“transfer,” it could not provide the jurors with more concrete
guidance regarding the meaning of the word.
B. Waiver
¶ 49 A waiver is “the intentional relinquishment of a known right or
privilege.” People v. Rediger, 2018 CO 32, ¶ 39, 416 P.3d 893, 902
(quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.
1984)). We do not review waived arguments. Id. at ¶ 40, 416 P.3d
at 902.
¶ 50 In contrast, the forfeiture of a right can occur through neglect
and does not extinguish an error. Id. We review forfeited errors for
22
plain error. Id. “Plain error is obvious and substantial. We reverse
under plain error review only if the error ‘so undermined the
fundamental fairness of the trial itself as to cast serious doubt on
reliability of the judgment of conviction.’” Hagos, ¶ 14, 288 P.3d at
120 (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).
¶ 51 Here, defense counsel expressly rejected the prosecutor’s
suggestion that the court provide the jury with a definition of
“transfer.” Although defense counsel acknowledged that section
18-12-111(1) lacks a definition of “transfer,” she argued against
providing the jury with a definition of the word.
¶ 52 Defense counsel’s statements in opposition to a further jury
instruction on the meaning of “transfer” went beyond a “rote
statement that [counsel] is not objecting.” People v. Tee, 2018 COA
84, ¶ 37, 446 P.3d 875, 883 (quoting United States v. Zubia-Torres,
550 F.3d 1202, 1207 (10th Cir. 2008)); see People v. Forgette, 2021
COA 21, ¶ 32, ___ P.3d ___, ___ (concluding that “counsel’s failure to
request relief for the known defect of a sleeping juror constitutes
waiver”); Tee, ¶¶ 25-42, 446 P.3d at 881-84 (holding that a waiver
occurred where defense counsel knew the jurors engaged in
predeliberation, which raised constitutional concerns, but chose not
23
to seek a mistrial); People v. Kessler, 2018 COA 60, ¶ 36, 436 P.3d
550, 558 (determining that defense counsel waived his appellate
argument because he did not object or otherwise argue that the
result of a breathalyzer test was inadmissible at trial); cf. Phillips v.
People, 2019 CO 72, ¶ 22, 443 P.3d 1016, 1023 (holding that no
waiver occurred where the record was “barren of any indication that
defense counsel considered raising the unpreserved contentions
before the trial court but then, for a strategic or any other reason,
discarded the idea”).
¶ 53 The record here is not “barren of any indication that defense
counsel considered raising,” Phillips, ¶ 22, 443 P.3d at 1023, the
argument that, in the absence of a definition of “transfer,” section
18-12-111(1) is unconstitutionally vague. Defense counsel could
have sought to remedy this alleged deficiency by proposing a jury
instruction containing a definition of “transfer” amenable to
Johnson. But defense counsel did not even attempt to persuade
the court to adopt a definition of the word.
¶ 54 Rather, when the court asked for the defense’s position on a
possible definitional instruction, defense counsel responded, “[m]y
position is you have been given all the instructions as is.” Defense
24
counsel’s position on defining “transfer” for the jury was not the
result of mere neglect but was intentional. Therefore, we conclude
that Johnson waived her argument regarding the constitutionality
of section 18-12-111(1) by intentionally relinquishing a known right
and, specifically, by urging the court not to provide the jurors with
a definition of “transfer.”
¶ 55 Even if Johnson did not waive this argument, we conclude the
court did not plainly err by not giving the jury a definition of
“transfer.” See Hagos, ¶ 14, 288 P.3d at 120; People v. Conyac,
2014 COA 8M, ¶ 54, 361 P.3d 1005, 1020 (“Under the plain error
standard, the defendant bears the burden to establish that an error
occurred, and that at the time the error arose, it was so clear cut
and so obvious that a trial judge should have been able to avoid it
without benefit of objection.”). Because we hold supra Part III.B
that the language of the statute is unambiguous, any error in not
providing the jury with an instruction defining “transfer” was not
“so clear cut and obvious” that the trial court should have
disregarded Johnson’s argument against providing the jury with
such an instruction and giving the jury a definition of “transfer.”
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VI. Conclusion
¶ 56 The judgment of conviction is affirmed.
JUDGE ROMÁN and JUDGE HARRIS concur.
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