State v. ElmquistState v. Elmquist
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- Before:
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Defendant appeals his conviction for shooting at an occupied building, in violation of
STANDARD OF REVIEW.
It is the function of the legislature to determine what actions should be prohibited and to define crimes by statute. State v. Grijalva, 85 N.M. 127, 509 P.2d 894 (Ct.App.1973); State v. Dennis, 80 N.M. 262, 454 P.2d 276 (Ct.App.1969). Construing such statutes to determine their meaning is a judicial function. Madrid v. University of Cal., 105 N.M. 715, 737 P.2d 74 (1987). The level of criminal intent required to convict the accused thus becomes a matter of statutory construction by the judiciary. State v. Craig, 70 N.M. 176, 372 P.2d 128 (1962).
THE ARGUMENTS.
The statute defines “inhabited dwelling” but not “occupied building.” The State argues it is sufficient to establish a violation of the statute if a person intentionally discharges a firearm at a building, and the building happens to be occupied. Defendant argues he must have had reason to believe that the building was occupied at the time the shot was fired. In essence, the State maintains that the term “willfully” modifies only the verb “discharging,” and Defendant argues the term modifies the entire phrase “discharging a firearm at an * * * occupied building.” Defendant tendered an instruction along the lines of his interpretation of the statute, containing as its first element that the “defendant willfully discharged a firearm into an occupied building.”
THE STATUTE IS AMBIGUOUS.
Although each party contends that the language of the statute is clear and requires no construction, we cannot agree. A statute is ambiguous when it can be understood by reasonably well-informed persons in two or more different senses. Kindy v. Hayes, 44 Wis.2d 301, 171 N.W.2d 324 (1969). Each party here has offered what we find to be a plausible interpretation of the facial language of the statute. For example, there is no punctuation separating the “willfully discharging” portion of the statute from the “occupied building” portion. Such punctuation would have indicated an intent to separate the willfulness requirement from the “occupied building” element of the crime. On the other hand, “willfully” is an adverb and “discharging” is the only verb in the sentence, so it is reasonable to assume the adverb modifies only that verb. Moreover, qualifying words are normally to be applied to the phrase immediately preceding and are not
LEGISLATIVE INTENT.
The New Mexico appellate courts have recently considered the probable legislative intent behind the prohibition in
The murder statute is designed to avoid the unlawful killing of a person. In contrast, the shooting into an occupied vehicle statute is more narrowly designed to protect the public from reckless shooting into a vehicle and the possible property damage and bodily injury that may result. While death may occur as a result of shooting into an occupied vehicle, we must strictly construe the social purpose protected by each statute. Id. Thus, the statutes protect different social interests.
Gonzales, 113 N.M. at 225, 824 P.2d at 1027. Under Gonzales, then,
In State v. Highfield, 113 N.M. 606, 830 P.2d 158 (Ct.App.), cert. denied, 113 N.M. 503, 828 P.2d 415 (1992), this Court, also in the double jeopardy context, considered the likely intent of
This interpretation also seems consistent with the overall statutory pattern criminalizing the discharge of weapons in New Mexico. At the time
If
A statute must be interpreted as the legislature understood it at the time it was passed, New Mexico State Bd. of Educ. v. Board of Educ., 95 N.M. 588, 624 P.2d 530 (1981), and related statutes should be construed as a whole, Clavery v. Zia Co., 104 N.M. 321, 720 P.2d 1262 (Ct.App.1986). In line with these rules of construction and based on the relative penalties provided, we feel it is most likely the legislature intended
LAW FROM OTHER JURISDICTIONS.
This conclusion is reinforced by the interpretation of a similar statute provided by the North Carolina courts. That statute makes it a felony for any person to “willfully or wantonly” discharge a firearm “into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied.”
The State relies on People v. Jacobus, 17 A.D.2d 223, 234 N.Y.S.2d 190 (1962), in which the New York court interpreted a similar statute in a different manner. The Jacobus court held that there was no requirement that defendants know or have reason to know that the place they are shooting into is public or that persons would be endangered thereby.
In determining to follow North Carolina, rather than New York, we are persuaded by the reasoning of Justice Ransom’s special concurrence in Reese v. State, 106 N.M. 498, 501-03, 745 P.2d 1146, 1149-51 (1987). Relying on Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 244-45 (2d ed. 1986), Justice Ransom sets forth seven factors that bear on whether a knowledge requirement should be imposed in this case.
One of those factors is legislative history, which, as we have pointed out, favors Defendant’s interpretation of this statute in that the statute appears to fill in a gap. Another factor is the severity of the crime, which in New York was just a misdemean- or, whereas here the crime is a felony. The seriousness of the harm to the public, the defendant’s opportunity to ascertain the true facts, the difficulty prosecuting officials would have in proving the requisite mental state, and the number of expected prosecutions are also factors we believe
RULE OF LENITY.
Finally, even if we had no method of discerning the legislature’s intent in promulgating Section 30-3-8, the rule of lenity would dictate we adopt Defendant’s interpretation. See State v. Keith, 102 N.M. 462, 697 P.2d 145 (Ct.App.), cert. denied, 102 N.M. 492, 697 P.2d 492 (1985); State v. Ortiz, 78 N.M. 507, 433 P.2d 92 (Ct.App.) (where there is doubt or ambiguity concerning the meaning of a criminal statute, it will be construed against the state which enacted it and in favor of the accused), cert. denied (1967).
FAILURE TO INSTRUCT WAS REVERSIBLE ERROR.
The State points out that Defendant’s position at trial was not that he did not know the building was occupied; instead, Defendant contended he did not commit the shooting at all. If there was no evidence at trial that would support a finding of lack of knowledge of the building’s occupancy, omission of the knowledge instruction would not require reversal under a fundamental error analysis. See State v. Orosco, 113 N.M. 780, 833 P.2d 1146 (1992) (even though “unlawfulness” is an essential element of the crime of criminal sexual contact of a minor, and must be part of the jury instructions, failure to include such an instruction is not fundamental error where there is no suggestion in the evidence that the touching, if it occurred, was lawful). If Defendant properly preserved this issue, we would not engage in a fundamental error analysis. Although Defendant tendered an instruction and argued the issue of knowledge to the court below, it may be that his instruction was not adequate to convey to the jury the necessity of finding the element he claims was lacking. We must, then, examine the record to determine whether there is any evidence that would put the knowledge question at issue. See id. (question is whether there is any evidence or suggestion in the facts that could have put the element of unlawfulness in issue).
The shooting in this case occurred at 6:37 on a Saturday morning. The building Defendant shot at was a tire service business that did not open for business on Saturdays until 8:00 a.m. There was a light on in the building, but it was a light that was regularly used as a night-light. There were a number of vehicles parked in front of the building, but the only person inside was one of the co-owners of the business. This evidence is sufficient to put the element of knowledge at issue. Therefore, even under Orosco, Defendant’s conviction must be reversed and, at the retrial, an instruction on the element of knowledge must be given.
FIREARM ENHANCEMENT.
Defendant raised another issue on appeal, concerning the enhancement of his sentence for use of a firearm. The State has conceded that such enhancement was error since use of a firearm is an element of the crime of shooting into an occupied building. See Swafford v. State, 112 N.M. 3, 16, 810 P.2d 1223, 1236 (1991) (element of crime should not be used to enhance another sentence unless legislature clearly so indicates); State v. Haddenham, 110 N.M. 149, 793 P.2d 279 (Ct.App.) (state cannot use prior felony both to prove an element of a crime and as a basis for habitual offender enhancement), cert. denied, 110 N.M. 72, 792 P.2d 49 (1990) and 110 N.M. 183, 793 P.2d 865 (1990). Should Defendant be convicted again, we assume the firearm enhancement will not be applied to his sentence.
CONCLUSION.
We therefore hold that the statute requires not only that the discharge of the firearm be intentional and that it be discharged at a building intentionally, but that the discharge occur with the knowledge or reason to believe that the building was occupied at the time of the shooting. This knowledge that the building is occupied is an essential element of the crime of willfully shooting at an occupied building. The requisite knowledge, of course, may be proved by circumstantial evidence such as
Based on the foregoing, Defendant’s conviction is reversed and the case is remanded for a new trial.
IT IS SO ORDERED.
PICKARD and FLORES, JJ., concur.