Cite as People v. Straight, 95CA1602 (Colo. Ct. App. 11/20/97) COLORADO COURT OF APPEALS November 20, 1997 No. 95CA1602 NOT SELECTED FOR PUBLICATION ----------------------------------------------------------------- The People of the State of Colorado, Plaintiff-Appellee, v. Debbie Sue Straight, Defendant-Appellant. ------------------------------------------------------------------ Appeal from the District Court of the City and County of Denver Honorable Morris B. Hoffman, Judge No. 93CR148 Division I JUDGMENT AFFIRMED OPINION BY JUDGE METZGER Taubman and Pierce*, JJ., concur ------------------------------------------------------------------ Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Jerry N. Jones, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant Defendant, Debbie Sue Straight, appeals the judgment of conviction entered on a jury verdict finding her guilty of contributing to the delinquency of a minor. We affirm. This case arises out of defendant's purchase for her son of an assault-style hand gun of a type known as an "M-11", which gun was later used by the son in a murder. Possession of an M-11 is illegal within the City and County of Denver. I. Defendant first contends the trial court erred in allowing the prosecution to present evidence of the murder committed by her son. We disagree. Unless the defendant Stipulates to an element of the crime, the People are entitled to present any evidence relevant to that element. People v. Snyder, 874 P.2d 1076 (Colo. 1994). A trial court must determine if such evidence is logically relevant to establish an element of the offense and whether it is unduly prejudicial to the defendant. See CRE 401, 402, 403; People v. Garner, 806 P.2d 366 (Colo. 1991). A trial court has substantial discretion in deciding questions concerning the admissibility of evidence. People v. Quintana, 882 P.2d 1366 (Colo. 1994). When reviewing a trial court's exercise of discretion, an appellate court must afford the evidence the maximum probative value attributable by a reasonable trier of fact and the minimum unfair prejudice to be reasonably expected. People v. Gibbens, 905 P.2d 604 (Colo. 1995). Here, testimony was admitted from a number of witnesses concerning the murder by defendant's son of another youth with the M-11. Such evidence showed the son's actual possession of the weapon within the City and County of Denver and that the handgun was fully operational, both of which were elements necessary to show a violation of the Denver City Ordinance. And, since defendant did not stipulate to any elements of the crime, proof of those elements was appropriate. See Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969). Further, the jury was admonished both by the trial court and the prosecutor that defendant was not on trial for the murder committed by her son. Under these circumstances, the trial court did not abuse its discretion in admitting the evidence. II. Defendant next contends the trial court erred in admitting into evidence her testimony at her son's preliminary hearing. Essentially, she argues that this use of her prior statements violated her Fifth Amendment right against self-incrimination. We perceive no error. Absent an advisement of constitutional rights and a proper waiver thereof, statements of a defendant in response to custodial interrogation by police authorities are not admissible in evidence. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Here, defendant was not subpoenaed to testify at the preliminary hearing, and thus, she could not have been compelled to take the stand. Further, at the time of the preliminary hearing, defendant was not in custody and had not been charged with any offense, nor, as the trial court found with ample record support, were any charges against her contemplated at that point. These facts establish that defendant did not undergo custodial interrogation at the preliminary hearing, and thus, her statements were admissible at her trial. III. Defendant argues the trial court erred in refusing to allow her to present evidence that she did not know that possession of the M-11 violated the law. We disagree. A violation of section 18-6-701, C.R.S. 1997, contributing to the delinquency of a minor, requires a mens rea of "knowingly." People v. Trevino, 826 P.2d 399 (Colo. App. 1991). However, ignorance of the law is no defense to criminal culpability. People v. Mendro, 731 P.2d 704 (Colo. 1987); see also section 18-1-504, C.R.S. 1997. "Knowingly" is a general intent culpable mental state. Therefore, it need not be proved that a defendant acted with the specific intent to cause the result proscribed by statute; rather, it is enough to show that a defendant was aware of engaging in conduct which caused the result. See People v. Noble, 635 P.2d 203 (Colo. 1981). Here, defendant claims she did not know the M-11 was illegal to possess within the City and County of Denver. However, the evidence showed that she knowingly and intentionally gave the weapon to her son because "he wanted it and for his protection." The trial court properly determined that the prosecution did not need to prove that defendant knew that possession of the handgun was in violation of a Denver City Ordinance. The prosecution was required only to demonstrate that defendant knowingly provided the child with access to the weapon. Hence, the trial court properly refused to permit presentation of evidence indicative of defendant's ignorance of the law. See section 18-1-503(4), C.R.S. 1997; see also People v. Metcalf, 926 P.2d 133 (Colo. App. 1996). IV. Defendant next asserts the trial court erred in refusing to instruct the jury on her defense of mistake of law. Defendant argues she should have been allowed to claim mistake of law as an affirmative defense based upon her constitutional right to bear arms. We agree with the trial court. Section 18-1-504(2), C.R.S. 1997, states: A person is not relieved of criminal liability for conduct because he engages in that conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless the conduct is permitted by one or more of the following: (a) A statute or ordinance binding in this state . . . . Colo. Const. art. II, section 13, provides: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. Defendant mischaracterizes the defense. Section 18-1-504(2) allows a defendant, if certain conduct is permitted by statute or ordinance, to argue mistake of law as a defense. Here, however, the Denver ordinance specifically prohibits the ownership of an M-11 handgun. And, this ordinance was found to be constitutional in Robertson v. City & County of Denver, 874 P.2d 325 (Colo. 1994). Hence, there is no basis for a finding that defendant's conduct was permissible. People v. Ford, 193 Colo. 459, 568 P.2d 2 (1977) relied on by defendant, is distinguishable. There, in regard to a charge of possession of a weapon by a previous offender, the supreme court held that testimony indicating that the weapons were kept in the defendant's house for protection of the home, person, and property gave rise to an affirmative defense. Here, defendant did not claim to purchase the weapon for the protection of her person, property, or home. Instead, she provided the weapon to a minor within the limits of the City and County of Denver. Further, she did not claim to have knowledge of any statute or ordinance which would have made her conduct lawful. Consequently, the trial court properly disallowed the mistake of law affirmative defense. V. Defendant argues that the trial court's denial of her motion for mistrial based on a misstatement of the evidence by the prosecutor in his opening statement constituted reversible error. We disagree. Failure of subsequent testimony to be fully supportive of opening statements may be grounds for a mistrial if either manifest prejudice or bad faith is shown. See People v. Jacobs, 179 Colo. 182, 499 P.2d 615 (1972). Here, the prosecutor's opening statement characterized defendant's male housemate as her "lover." On direct examination, the housemate testified that defendant was not his "girlfriend" but a "female that we [sic] lived in the same house." The prosecutor did not pursue the line of questioning after this initial answer from the witness. The trial court found that neither bad faith nor manifest prejudice existed here. Based on the record and the unobtrusiveness of the prosecutor's statement, we conclude the trial court did not err in denying a mistrial based on this single comment. Cf. People v. Griffin, 867 P.2d 27 (Colo. App. 1993); People v. Watson, 650 P.2d 1340 (Colo. App. 1982). VI. Finally, defendant contends the trial court erred in denying her motion to dismiss based on selective prosecution. The basis for this contention is the fact that the housemate, who was a Denver police officer and who knew that she had given the M-11 to her son, was not charged. We perceive no error. In determining whom to prosecute for criminal activity and on what charge, a prosecutor has wide discretion. Equal protection is not denied absent a showing that a prosecutor has exercised a policy of selectivity based upon an unjustifiable standard such as race, religion, or any other arbitrary classification. The defendant has the burden of proving discriminatory prosecution and bald allegations of such practices will not suffice. People v. MacFarland, 189 Colo. 363, 540 P.2d 1073 (1975). Initially, we note that defendant's argument is not based on any systematic discrimination based on race, religion, or any other arbitrary, classification. Thus, no factual basis exists for her assertion. See Lloyd A. Fry Roofing Co v. State Department of Air Pollution Variance Board, 191 Colo. 463, 553 P.2d 800 (1976). Additionally, contributing to the delinquency of a minor requires that the People prove that the defendant "induce[d], aid[ed] or encourage[d] a child to violate any . . . municipal ordinance . . . " Section 18-6-701(1), C.R.S. 1997. The mere knowledge that a person has violated a municipal ordinance does not amount to inducing, aiding, or encouraging such person to violate the ordinance. See Martinez v. People, 166 Colo. 524, 444 P.2d 641 (1968). Therefore, charging the housemate with contributing to the delinquency of a minor would not have been appropriate. The judgment is affirmed. JUDGE TAUBMAN and JUDGE PIERCE concur. FOOTNOTES *Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and section 24-51-1105, C.R.S. 1997.