Defendant appeals from a conviction, following a bench trial, for the unlawful carrying of a loaded firearm in violation of Portland City Code (PCC) 14.32.010(C). Defendant assigns error to the trial court’s conclusion that the state was not required to prove that defendant knew that the firearm was loaded. We conclude that when a particular circumstance renders otherwise innocent conduct criminal, the existence of that circumstance is a material element for which the state must prove a culpable mental state, unless there is a clear legislative indication that such proof of scienter is not required. Here, the firearm’s “loadedness” is such a material element, and there is no clear legislative indication of an intent to excuse proof of scienter with respect to that element. Consequently, the court erred in convicting defendant without determining whether the state had proved defendant’s scienter as to “loadedness.” We reverse and remand for a new trial.
On appeal from a judgment of conviction, we recount the facts in the light most favorable to the state.
State v. Rose,
Dick asked the driver if she could search the car, and he consented. During her search, in the right rear passenger compartment where defendant had been sitting, Dick found a loaded, 9mm semiautomatic handgun sandwiched between two floormats. Dick then arrested defendant and advised her of her Miranda rights. Defendant subsequently acknowledged that her fingerprints would be on the gun and admitted that she had put the gun between the floormats when Dick first stopped the car. She explained, however, that the gun was on the left backseat floorboard when she first entered the car.
The state charged defendant with carrying a loaded firearm in violation of PCC 14.32.010(C), which provides:
“It is unlawful for any person on a public street or in a public place to carry a firearm upon his person, or in a vehicle under his control or in which he is an occupant, unless all ammunition has been removed from the chamber and from the cylinder, clip, or magazine.”
The charging information alleged:
“The said defendant, on or about June 2, 1999, within the corporate limits of the said City of Portland, Oregon, did unlawfully and knowingly while on a public street carry a firearm in a vehicle in which she was an occupant, without having first removed all ammunition from the said firearm, in violation of [PCC 14.32.010(C).]”
Defendant waived her right to a jury trial, and the case was tried to the court. Dick testified as the state’s only witness. Following Dick’s testimony, defendant moved for a judgment of acquittal arguing, inter alia, that for defendant to be convicted of a crime for knowingly engaging in the conduct proscribed by PCC 14.32.010(C), the state must prove defendant’s scienter not only with respect to carrying the firearm but also with respect to the fact that the firearm was loaded, and that the state had failed to do so. The trial court denied the motion, stating, “[A]t least there is some evidence to show that she could have had knowledge of the status of it being loaded.”
Defendant did not present any evidence. During closing arguments, however, defendant reiterated her argument that the state
“[T]he State’s burden is only to show that the defendant was carrying the firearm. The fact that it is loaded or unloaded, it is incumbent upon the defendant to make sure that any firearm that they are carrying is not, in fact, loaded as a result, just as it would be the defense burden to prove that or to show that through an affirmative defense that, in fact she had a concealed weapons permit for the gun or something similar to exonerate her from prosecution under this charge.”
The trial court agreed with the state:
“The legal issue that we have to face, really, is whether or not the ordinance and the structure of it requires proof beyond a reasonable doubt that the defendant knew that the gun was loaded. And from looking at this ordinance, I’m not clear that that’s required, that that’s part of the State’s burden. I could be wrong. I think it’s sufficient to show that she had possession, control over the weapon while it was being carried in a public place or a public street. And the fact that it was loaded is unfortunate for her. It’s incumbent on a person who is put in possession of that weapon and exercises control or dominion over it to make sure the ammunition has been removed. And, at their peril if they don’t do that, they can be subject to some liability.”
The court then found that defendant knowingly carried the firearm and that it was loaded and, consequently, found defendant guilty.
On appeal, defendant reiterates that, to obtain a criminal conviction for violation of PCC 14.32.010(C), the state was required to prove that defendant knew that the gun was loaded. The state responds that: (1) given the procedural posture of defendant’s arguments to the trial court, her assignment of error may not be reviewable on appeal; and (2), in all events, the state was required to prove only that defendant knowingly carried the gun — and not that she knew it was loaded.
The state’s reviewability concern, while understandable, is unavailing. As noted, this was a bench trial. In that context, the ruling to which defendant assigns error here is directly analogous to a ruling on an exception to an instruction in a jury trial.
1
See, e.g., State v. Brown,
State v. Hull,
“The problem is more difficult when the facts are in dispute and the case is tried to the court without a jury, for then the legal assumptions about the elements that would suffice to [convict the defendant] do not take the form of instructions. In such a case, there are different ways in which the record could show the basis of the court’s conclusion so as not to foreclose review of this issue on appeal. One helpful way would be if the court expressed in some form its view of the facts, insofar as they are disputed. Alternatively the court might express its understanding of the elements legally needed to [convict the defendant], since these will not be recorded in the form of jury instructions. Or the court might do both. We prescribe no formal findings; what matters is only that an appellate court can perform its function on the issue whether the [case] was decided on the right legal premises.” Id.
Here, in closing argument, defendant raised the precise matter now disputed on appeal — whether the state must prove a culpable mental state with respect to the “loadedness” element in PCC 14.32.010(C). The trial court expressly decided that question.
See
PCC 14.32.010(C) provides:
“It is unlawful for any person on a public street or in a public place to carry a firearm upon his person, or in a vehicle under his control or in which he is an occupant, unless all ammunition has been removed from the chamber and from the cylinder, clip, or magazine.”
That provision does not specify a culpable mental state. However, PCC 1.01.170 provides that the Portland City Code
“shall be construed so as to render it consistent with state criminal law, and any procedures or defenses made available in the prosecution of the same or similar offenses under state criminal law shall apply in prosecutions under this Code.”
Both parties agree that PCC 1.01.170 evinces an intent on the part of the Portland City Council that courts should apply
the methodological precepts in the state criminal code when interpreting and applying criminal ordinances under the PCC. We perceive no reason to question that understanding.
See State v. Courtier,
Three provisions of the criminal code are particularly pertinent to our analysis here. First, ORS 161.025(l)(d) provides:
“The general purposes of chapter 743, Oregon Laws 1971, are:
* * * *
“(d) To define the act or omission and the accompanying mental state that constitute each offense and limit the condemnation of conduct as criminal when it is without fault.” (Emphasis added.)
Second, ORS 161.095 provides:
“(1) The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which the person is capable of performing.
“(2) Except as provided in ORS 161.105, a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.” (Emphasis added.)
Third, ORS 161.105(1) provides, in part:
“Notwithstanding ORS 161.095, a culpable mental state is not required if:
* * * *
“(b) An offense defined by statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof.” (Emphasis added.)
For nearly 30 years, we and the Supreme Court have struggled with the application of those statutes in attempting to develop a principled approach as to which elements of criminal offenses require culpable mental states and which do not.
The courts’ ratio decidendi have ranged from invoking the “absurd result” maxim 3 to positing distinctions between “conduct” and “attending circumstances.” 4
That patchwork of appellate decisions “has not been entirely consistent.”
Engen,
Here, that principle, which is amplified below, compels reversal and a new trial. The circumstance that a firearm is loaded renders otherwise innocent conduct (carrying an unconcealed firearm) criminal. Nothing in the text of PCC 14.32.010(C) or any other provision of the Portland City Code even suggests — much less “clearly indicates” — a legislative intent to dispense with proof of
scienter
for that material element.
The foundation of our holding is the Criminal Code’s fundamental hostility toward imposing criminal liability without fault. ORS 161.025(l)(d) and ORS 161.105(l)(b) express that policy
explicitly
— i.e.,
scienter
must be proved unless the legislature (or here, the city council) has “clearly indicated” otherwise.
See
Commentary to Oregon Criminal Law Revision Commission Proposed Oregon Criminal Code Final Draft and Report (July 1970), § 11 at 11 (“The Commission follows the Model Penal Code in expressing a policy adverse to use of ‘strict liability’ concepts in criminal law, whenever the offense carries a possibility of sentence of imprisonment.”).
See generally State v. Cho,
The application of that principle was the focus of both
Buttrey
and
Miller.
In
Buttrey,
a deeply divided court concluded that, in a prosecution for driving while suspended,
former
ORS 487.560, the state was not required to prove that the defendant motorist had actual or constructive knowledge that his driving privileges had been suspended. In
Miller,
a divided court concluded that a defendant can be convicted of driving under the influence of intoxicants, ORS 813.010, without proof of a culpable mental state as to the material element of being under the influence of an intoxicant. In each case, the majority and the dissenting judges agreed, without discussion, that the existence of the circumstance
(viz.,
the defendant’s suspension in
Buttrey,
the defendant’s intoxication in
Miller)
that transformed otherwise innocent conduct (driving) into criminal conduct was a material element of the
crime.
See, e.g., Buttrey,
This case is analogous to
Buttrey
and
Miller
— to a point. Here, as in those cases, a single circumstance — the gun’s “loadedness” — renders otherwise innocent conduct criminal. Here, as in those cases, that all-important circumstance is a material element for which, in the absence of a clear legislative indication to the contrary, proof of a culpable mental state is required.
Cf. State v. Blanton,
We return to the text of PCC 14.32.010(C):
“It is unlawful for any person on a public street or in a public place to carry a firearm upon his person, or in a vehicle under his control or in which he is an occupant, unless all ammunition has been removed from the chamber and from the cylinder, clip, or magazine.”
The text, “unless all ammunition has been removed,” describes a material element of the offense. The state must prove that the firearm was, in fact, loaded.
5
The text is
Nothing in the context of PCC 14.32.010(C) suggests, much less clearly indicates, any intention to excuse proof of scienter with respect to the “loadedness” element. Finally — assuming that reference to legislative history is even permissible given the plain language of ORS 161.105(l)(b) 6 — there is no legislative history for PCC 14.32.010(C).
We thus conclude that, in a criminal prosecution under PCC 14.32.010(C), the firearm’s loaded status is a material element that “necessarily requires a culpable mental state.” ORS 161.105(l)(b).
In so holding, we acknowledge that our analysis, while comporting with
Buttrey
and
Miller,
differs qualitatively from that employed in
Van Norsdall.
In
Van Norsdall,
we considered whether, in a prosecution for ex-felon in possession of a firearm, ORS 166.270, the state was required to prove not only that the defendant knowingly possessed a weapon but also that he knew of his ex-felon status. Thus, in
Van Norsdall
— as in
Buttrey, Miller,
and this case — a single circumstance (the defendant’s status as an ex-felon) rendered otherwise lawful conduct
(viz.,
possession of a firearm) criminal. We concluded that the state was not required to prove a culpable mental state as to that critical element. Although our opinion referred, in passing, to
Miller, see Van Norsdall,
We turn finally to the appropriate disposition. As noted, this was a trial to the court. Although defendant argued to the trial court that the state had failed to adduce any evidence of her
scienter
as to “loadedness,” defendant does not reiterate that argument on appeal. Thus, the case is in a posture in which the trial court convicted defendant without deciding a material element for which there was proof sufficient to withstand a motion for judgment of acquittal. Given those circumstances, and as we have done previously,
see, e.g., State v. Jaha,
Reversed and remanded for new trial.
Notes
In raising its reviewability concerns, the state candidly suggested the “jury instruction” analogy. We acknowledge, and appreciate, that candor and the professionalism that suggestion evinces.
Given the parties’ acknowledgment that PCC 1.01.170 requires reference to the methodological provisions of the Oregon Criminal Code, we need not, and do not, decide whether, in the absence of PCC 1.01.170, those provisions would otherwise
directly
apply to the Portland City Code (or any municipal ordinance). In particular, we do not decide whether PCC 14.32.010(C) is a “statute outside the Oregon Criminal Code” for purposes of ORS 161.105.
See City of Portland v. Dollarhide,
See, e.g., State v. Irving,
268
Or
204, 207,
See, e.g., State v. Walker,
At first blush, it might appear that the “unless * * *” clause describes an affirmative defense. However, such a characterization cannot be squared with Oregon precedents addressing structurally similar provisions.
See State v. Vasquez-Rubio,
ORS 161.105(l)(b) provides that proof of a culpable mental state is not required if “[a]n
offense
* * * clearly indicates” (emphasis added) legislative intent that
scienter
proof is not required. In
Miller,
We note that the majority opinion in
Van Norsdall
did not refer to
State v. Jaha,