Summary
In Jenkins, the court sought to construe Colorado's felon-in-possession statute, which criminalized the possession of a firearm if the defendant had a prior felony conviction "involving the use of force or violence."
Summary of this case from United States v. HarrisOpinion
No. 28098
Decided September 17, 1979.
People appeal upon a question of law after district court granted defendant's motion for judgment of acquittal on charge of possession of a weapon by previous offender under "felon with a gun statute," section 18-12-108, C.R.S. 1973 (1978 Repl. Vol. 8).
Ruling Disapproved
1. WEAPONS — "Felon With a Gun" Statute — Conviction — Requirement. To sustain a conviction under "felon with a gun statute," section 18-12-108, C.R.S. 1973 (1978 Repl. Vol. 8), the statute requires that there must have been a previous conviction for a crime involving the use of force or violence or, as in instant case, a conviction for conspiracy to commit such a crime; the statute does not require that the overt act, which is an essential element of the crime of conspiracy, must itself involve force or violence; rather, the crime which is the object of the conspiracy must be one of force or violence, as is the crime of robbery.
2. Intimidation — Felony — Force or Violence. Robbery involving only the use of intimidation is a felony involving the use of force or violence within ambit of "felon with a gun" statute.
3. Robbery — Felon With Gun Statute — Actual Force — Constructive Force — Threats or Intimidation — Crime — "Force or Violence" — Proof — Unnecessary. The offense of robbery, as a matter of law, whether committed by actual force, or by constructive force, i.e., threats or intimidation, is a crime involving the use of "force or violence" for the purpose of section 18-12-108, C.R.S. 1973 (1978 Repl. Vol. 8), felon with a gun statute; thus, where one is charged under that statute with possession of a weapon, having previously been convicted of conspiracy to commit the crime of robbery, it is unnecessary to prove that the underlying robbery which was the object of the conspiracy did in fact involve the use of force or violence.
Appeal from the District Court of the City and County of Denver, Honorable Henry E. Santo, Judge.
Dale Tooley, District Attorney, O. Otto Moore, Assistant, Brooke Wunnicke, Chief Appellate Deputy District Attorney, for plaintiff-appellant.
J. Gregory Walta, State Public Defender, Craig L. Truman, Chief Deputy, Alexander Garlin, Deputy, Paul R. Bratfisch, Deputy, for defendant-appellee.
The People appeal pursuant to section 16-12-102, C.R.S. 1973 (1978 Repl. Vol. 8) upon a question of law.
The defendant, Jerry Jenkins, was charged with possession of a weapon by a previous offender, in violation of section 18-12-108, C.R.S. 1973 (1978 Repl. Vol. 8), commonly called the "felon with a gun statute." He pled not guilty and trial was to a jury. At the conclusion of the People's case, the district court granted defendant's motion for judgment of acquittal. The People assign error to this ruling. We agree that the court erred, and, therefore, disapprove the judgment of acquittal.
The statute under which defendant was charged provides:
"Any person previously convicted of burglary, arson, or a felony involving the use of force or violence or the use of a deadly weapon, or attempt or conspiracy to commit such offenses, under the laws of the United States of America, the state of Colorado, or another state, within the ten years next preceding or within ten years of his release or escape from incarceration, whichever is greater, who possesses, uses, or carries upon his person a firearm or other weapon mentioned in section 18-1-901(3)(h) or sections 18-12-101 to 18-12-106 commits a class 5 felony. A second or subsequent offense under this section is a class 4 felony." (Emphasis added.) Section 18-12-108, C.R.S. 1973 (1978 Repl. Vol. 8).
The defendant was specifically charged with having in his possession a gun when he had previously been convicted of the crime of conspiracy to commit robbery, to which he pled guilty on September 24, 1975, in the district court of Adams County. The robbery statute then in effect provided:
"A person who takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery." (Emphasis added.) Section 18-4-301(1), C.R.S. 1973.
The prosecution did not present any evidence concerning the facts or circumstances of defendant's conviction for conspiracy to commit robbery.
The district court, at the hearing on the motion for judgment of acquittal, acknowledged that the People had produced evidence which, taken in the light most favorable to the prosecution, established that the defendant had a gun in his possession, and that previously he had in fact been convicted of the offense of conspiracy to commit robbery. However, the court ruled that, because the district attorney failed to show that the underlying previous felony, of which the defendant had admittedly been convicted, in fact involved the use of "force or violence," the proof was insufficient to sustain a conviction under the felon with a gun statute.
[1] The court gave two reasons for granting the judgment of acquittal. First, it ruled that a conviction under the conspiracy provision of the felon with a gun statute requires a showing that the overt act of the conspiracy was an act of force or violence. We do not agree with this interpretation. The statute requires that there must have been a previous conviction for a crime involving the use of force or violence or, as in this case, a conviction for conspiracy to commit such a crime. The statute does not require that the overt act, which is an essential element of the crime of conspiracy, must itself involve force or violence. Rather, the crime which is the object of the conspiracy must be one of force or violence, as is the crime of robbery.
[2] The second reason for its holding was that since robbery can be committed by intimidation, as well as by force, the mere proof of a conspiracy to commit a robbery, without more, was insufficient evidence of force or violence to warrant submitting to the jury the charge of possession of weapons by a previous offender. We do not agree with this ruling. We hold that robbery involving only the use of intimidation is a felony involving the use of force or violence.
As previously noted, the statute in effect at the time of the previous conviction defined robbery as the taking of anything of value from the person or presence of another "by the use of force, threats, or intimidation." In People v. Gallegos, 193 Colo. 108, 563 P.2d 937 (1977), the use of "threats" was held to bring an attempted robbery within the ambit of the felon with a gun statute. Applying the same analysis, the use of "intimidation" in the commission of a robbery is likewise sufficient to bring the offense within the statute. "Intimidation" is defined in Black's Law Dictionary 957 (rev. 4th ed. 1968) as "unlawful coercion; duress; putting in fear." Also, in Merriam-Webster New International Dictionary (Third Edition) p. 1184, "intimidate" is defined as, inter alia, "to make fearful, frightened, compel action or inaction (as by threats)."
In People v. Thomas, 181 Colo. 317, 509 P.2d 592 (1973), one of the elements of the robbery statute there under consideration was "intimidation." This court noted that force or fear is the main element of the offense of robbery and stated that "'[P]utting [the victim] in fear and taking the property constitute the gist of the crime.'" Historically, this is in accord with the common law and there is no indication that our General Assembly has departed from the usual and customary meaning of the terms used in the statute. See 67 Am. Jur. 2d Robbery § 22 and cases therein cited.
[3] Thus, this court concludes as a matter of law that the offense of robbery, whether committed by actual force, or by constructive force, i.e., threats or intimidation, is a crime involving the use of "force or violence" for the purposes of section 18-12-108, C.R.S. 1973 (1978 Repl. Vol. 8). Accordingly, we hold that where one is charged under that statute with possession of a weapon, having previously been convicted of conspiracy to commit the crime of robbery, it is unnecessary to prove that the underlying robbery which was the object of the conspiracy did in fact involve the use of force or violence.
The ruling of the district court granting the motion for judgment of acquittal in this case is disapproved.
JUSTICE GROVES, JUSTICE ERICKSON and JUSTICE DUBOFSKY dissent.