STATE OF OREGON, Petitioner on Review, v. NICHOLAS RYAN RAINOLDI, Respondent on Review.
CC 061255770; CA A136377; SC S058846
IN THE SUPREME COURT OF THE STATE OF OREGON
December 30, 2011
268 P.3d 568 | 351 Or. 486
Argued and submitted May 3, decision of Court of Appeals reversed; judgment of circuit court affirmed December 30, 2011
Ernest G. Lannet, Chief Deputy Defender, Salem, argued the cause and filed the brief for respondent on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
LANDAU, J.
LANDAU, J.
I. BACKGROUND
The relevant facts are few and undisputed. In 2004, defendant was convicted of two offenses: forgery in the first degree,
Several months later, defendant attended a gun show and attempted to purchase a shotgun from Keith‘s Sporting Goods. As part of that transaction, defendant filled out a background check form. On the form, he indicated that he had never been convicted of a felony. Using the information that defendant provided, an employee of Keith‘s Sporting Goods called the State Police Firearms Unit to run a background check on defendant for approval of the shotgun sale. Based on the background check, defendant‘s application to purchase the shotgun was denied.
Two police officers, Jacquot and Kulp, were also at the gun show. Dispatch notified them that defendant, a convicted felon, was attempting to purchase a firearm from Keith‘s Sporting Goods. The officers went to the Keith‘s Sporting Goods booth, spoke with the owner, and reviewed defendant‘s background check form. During their conversation, the owner was able to identify defendant for the officers.
The officers then contacted defendant, and the three went outside to discuss the situation. Once outside, defendant verified his identity and told the officers that he had been convicted of forgery a few years ago but that he understood the trial judge to have told him that, on completion of probation, his convictions would be reduced to misdemeanors. He explained that, because he had completed
Before trial, defendant requested that the trial court instruct the jury that, to find him guilty of attempted felon in possession of a firearm, the jury had to conclude that defendant knew that he was a felon at the time he attempted to purchase the shotgun. The trial court denied the request.
At trial, defendant admitted that he had attempted to purchase the firearm. He further stipulated that, by virtue of his 2004 convictions, he had been convicted of a felony. He asserted that, nevertheless, he was not prohibited from purchasing or possessing a firearm because, at the time he attempted to do so, he believed that his felony convictions had been reduced to misdemeanors. In support of that assertion, he testified that the sentencing judge explained that if he completed his two-year probation period, his two felony convictions would be treated as misdemeanors. Although defendant admitted that he had no documentation that his felonies actually had been reduced to misdemeanors, he testified that he believed, at the time of the attempted purchase, that his convictions were only misdemeanors.
The jury was instructed that, among other things, to convict defendant for attempted possession of a firearm by a felon, it was required to find that defendant “knowingly attempted to possess any firearm.” The jury found defendant
guilty of attempted felon in possession of a firearm, but acquitted him of the remaining charge. Defendant appealed, arguing that the trial court erred in failing to instruct the jury that it had to find that defendant knew he was a felon in order to find him guilty. The Court of Appeals agreed and reversed the judgment of conviction, holding that a person‘s status as a felon requires proof of a culpable mental state. State v. Rainoldi, 236 Or App 129, 149, 235 P3d 710 (2010). The court noted that, under
II. ANALYSIS
A. Applicable law
The extent to which criminal liability requires proof of a particular mental state is prescribed by statute.
“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.”
By its terms, that somewhat circular requirement that there be proof of a culpable mental state for “each material element of the offense that necessarily requires a culpable mental state” applies “[e]xcept as provided in
“Notwithstanding
ORS 161.095 , a culpable mental state is not required if:“*****
“(b) An offense defined by a 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.”
In this case, the offense at issue—felon in possession of a firearm—is defined by
In State v. Rutley, 343 Or 368, 375, 171 P3d 361 (2007), this court addressed the proper method of analysis of the extent to which an offense not within the Oregon Criminal Code requires proof of a culpable mental state as to a particular element. The court held that the analysis proceeds in the following sequence. First, it must be determined whether, under
Under Rutley, then, our initial task is to determine whether the offense of felon in possession of a firearm “clearly indicates a legislative intent to dispense with any culpable mental state” for the element that the defendant “has been convicted of a felony” within the meaning of
cases, the legislature has provided no guidance about how we should determine whether an offense “clearly indicates” such legislative intent. See State v. Miller, 309 Or 362, 366, 788 P2d 974 (1990) (so noting). In the process of applying the standard in a number of specific cases, however, this court has identified four factors that it takes into account in applying
The first is the text of the statute defining the offense itself.
The fact that a statute does not include such an unambiguous statement of legislative intent is more problematic. On the one hand, it can be argued that legislative silence does not “clearly indicate” anything. On the other hand, such silence may give rise to an inference that, given that the legislature knows how to include a culpable mental state requirement, the omission of such a requirement was purposeful and indicates an intention to dispense with it. Because of the possibility of those competing inferences, this court has concluded that “statutory silence alone is not a sufficiently clear indication of legislative intent to dispense with a culpable mental state.” Rutley, 343 Or at 375; see also State v. Cho, 297 Or 195, 201, 681 P2d 1152 (1984) (“The mere enactment of a crime without an expressly required culpable mental state is insufficient to establish such a clear indication.“).
On occasion, however, the court has gone further, holding that the silence of the text as to a culpable mental state, although not dispositive,
of an intention to dispense with a culpable mental state. In Miller, for example, the issue was whether the statute that defines the offense of driving under the influence of intoxicants (DUII) requires proof that the defendant knew that he was intoxicated while driving. 309 Or at 364. That statute,
Included in the examination of a statute‘s text is the overall structure of the law of which it is a part, which the court has held to be an important consideration under
A second factor on which the court has relied in its analysis under
a difference, in terms of whether a culpable mental state must be proved, between elements of an offense that pertain to the conduct of the defendant and those that pertain either to the status of the defendant who engages in that conduct or to an “attendant circumstance” to the commission of the offense. The former type of element is generally regarded as the type that requires proof of a culpable mental state, while the latter is not. Miller provides an example of the significance of that principle in evaluating whether the statute defining the offense clearly indicates an intention to dispense with proof of a culpable mental state. After noting that the absence of any such requirement in the text of the DUII statute strongly suggested an intention to dispense with such proof, the court added the following observation about the nature of the element at issue:
“Having a certain [blood alcohol content] or being under the influence is a status, and a person‘s mental state has nothing to do with whether that status exists. The statute requires only that the state prove that a defendant had the status while driving, not that the defendant knew or should have known of it.”
A third factor is the legislative history of the statute that defines the offense at issue. In Buttrey, for example, the court noted that, in addition to the overall structure of the statute defining the offense of driving while suspended, the legislative history made clear the legislature‘s intentions to dispense with proof of a culpable mental state. 293 Or at 584. The court found especially persuasive a statement from the project director of the interim committee that was responsible for the drafting of the bill that became the Oregon Vehicle Code, that ” [p]roof that [a defendant] knew of his suspension would not be an element of the offense but failure to receive notice would be
In Miller, the court suggested that the enactment history of a statute also may be pertinent in other ways. The court observed that the legislature had reenacted the statute
defining the offense of DUII several times after it had enacted
Finally, a fourth consideration in determining whether the statute defining an offense clearly indicates an intention to dispense with proof of a culpable mental state is the purpose of the statute. If requiring proof of such a mental state could frustrate the obvious purpose of the statute, the court has held, it is highly unlikely that the legislature intended to require that proof.
Directly on point in that regard is Rutley, in which the issue was whether the statute that makes it unlawful to deliver certain controlled substances “within 1,000 feet of the real property comprising a public or private elementary, secondary or career school attended primarily by minors,”
“Beginning with the text, we conclude that the statute evidences a clear legislative intent to give drug dealers a reason to locate the 1,000-foot school boundary and stay outside it—by punishing the failure to do so as the most serious of crimes, a Class A felony. The statutory text leaves no doubt that the legislature intended to protect children from drug use and the violence and other negative influences that accompany drug delivery. Children are exposed to those negative influences when drugs are delivered near schools, regardless of whether the dealers know they are within 1,000 feet of a school. In our view, requiring a knowing mental state with regard to the distance element would work against the obvious legislative purpose, in that it would create an incentive for drug dealers not to identify
schools, and not to take into consideration their distance from them in engaging in their illegal activity.”
Id. at 376 (citation omitted; emphasis in original).
B. Application to this case
With the foregoing principles in mind, we turn to the statute at issue in this case.
“(1) Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns or has in the person‘s possession or under the person‘s custody or control any firearm commits the crime of felon in possession of a firearm.
“*****
“(3) For the purposes of this section, a person ‘has been convicted of a felony’ if, at the time of conviction for an offense, that offense was a felony under the law of the jurisdiction in which it was committed.”
Beginning with the text of that statute, we state the obvious: It says nothing about requiring a culpable mental state with respect to proving that defendant “has been convicted of a felony.” As Rutley and other decisions make clear, that does not necessarily mean that the statute “clearly indicates” a legislative intent to dispense with such proof. 343 Or at 375. But, under Miller, the absence of any identifying culpable mental state suggests that the legislature intended none to apply. 309 Or at 368. To begin with, as in Miller, the
Bailey, 346 Or 551, 562, 213 P3d 1240 (2009) (“Generally, when the legislature includes an express provision in one statute and omits the provision from another related statute, we assume that the omission was deliberate.“).
Turning to the nature of the element at issue, we note that proof that the defendant “has been convicted of a felony” refers to an established class of persons who are not permitted to possess firearms. As such, the element refers to a status, as opposed to conduct, which ordinarily does not require proof of a culpable mental state. As this court explained in Miller, a person‘s mental state ordinarily has nothing to do with whether a particular status exists. 309 Or at 369.
Directly addressing the nature of the element that a defendant “has been convicted of a felony,” within the meaning of
“Based on our analysis of the text and context of
ORS 166.270 , we conclude that the legislature intended to, and did, focus on a person‘s status at the time that he or she possessed a firearm. The legislature determined that a person who has the status of ‘felon’ at that time—even if that status later might change because the prior felony conviction is reversed or set aside—falls within the class of persons that are not permitted to possess firearms. UnderORS 166.270(1) , the predicate for the crime of felon-in-possession is the status of being a felon at the time of possession of the firearm.”
Id. at 327 (citation omitted; emphasis in original).
The nature of the element is significant in another, related way: namely, whether a defendant‘s earlier conviction was a felony is a question of law. In State v. Anderson, 241 Or 18, 19, 403 P2d 778 (1965), the defendant had been charged with felon in possession of a firearm based on a prior conviction in another state for burglary. At trial, the state established that the defendant had pleaded guilty to attempted burglary. The defendant argued on appeal that the trial court should have ordered a directed verdict on the ground that there was a fatal variance between the predicate offense alleged and the one proven. Id. at 21. The court rejected the argument, explaining that “[t]he allegation of a prior conviction of a felony is only an allegation of the status of the defendant and the mere fact that the defendant had been convicted of an attempt instead of the completed offense” was irrelevant. Id. at 21-22.
The defendant then argued that the trial court should have entered a directed verdict because the state had failed to prove that the offense was actually a felony. Id. at 22. The court rejected that argument, as well, explaining that,
“[t]he law certainly does not require, in a case such as this, that the facts constituting
the commission of the prior crime be established to the satisfaction of a jury. The sole question before the jury is whether or not the defendant was previously convicted of the crime of burglary or a lesser included offense. It is a matter of law for the court to determine whether the crime committed constituted a felony against the property of another.”
Id. See also State v. Tippie, 269 Or 661, 665, 525 P2d 1315 (1974) (question of whether a prior conviction was a “felony” within the meaning of felon-in-possession statute is one of legislative intent).
Ordinarily, an element that is purely a question of law is a matter for the court and does not require proof as to defendant‘s knowledge of that law. State v. Langan, 293 Or 654, 661, 652 P2d 800 (1982) (“[G]uilt does not depend on defendant‘s knowledge of the law.“). Proof may be required of predicate facts, but the legal significance of those facts is purely for the court. Id. Thus, in this case, there is no dispute
that the state established the fact of defendant‘s prior conviction. The only dispute is whether the state is required to establish that defendant was aware of the legal significance of that fact. The legal significance of the prior conviction, however, is a matter for the court.
Turning to the legislative history of
The Oregon legislature enacted its first “felon-in-possession” statute in 1925. Or Laws 1925, ch 260, § 2. That statute had its genesis in a national movement towards greater regulation of firearms in reaction to the increase in crimes committed with pistols or revolvers. Indeed, in 1922, one report stated that “[t]he criminal situation in the United States, so far as crimes of violence are concerned, is worse than that in any other civilized country.” William B. Swaney et al., For a Better Enforcement of the Law, 8 ABA J 588, 590 (1922). Some proponents went as far as arguing for a complete ban on the manufacture and sale of pistols. Id. at 591.
In response, the United States Revolver Association (USRA) drafted an act for adoption throughout the country, in an attempt to provide “effective legislation which will minimize the use of pistols and revolvers by criminals, and at the same time permit law-abiding citizens to obtain such weapons for protection and other legitimate uses[.]” USRA, The Argument for a Uniform Revolver Law (1922), reprinted in Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings of the Thirty-Fourth Annual Meeting 716 (1924). Relevant to our inquiry, section five of the USRA Act prohibited any “person who has been convicted of a felony” from possessing or controlling a pistol or revolver. Id. at 728-29. Following the USRA‘s lead, the National Conference of Commissioners on Uniform State
Laws used that association‘s act as a model for its Uniform Firearms Act, which preserved the “fundamental principles” of the USRA Act—including the ban on persons who had been convicted of a felony possessing a firearm. Charles V. Imlay, The Uniform Firearms Act, 12 ABA J 767, 767 (1926).
California, in 1923, was one of the first states to adopt the USRA Act, with a few modifications. Id.; Cal Laws 1923, ch 339, § 2. Two years later, Oregon also adopted the USRA Act, although it appears—due to the identical wording—that the Oregon legislature followed California‘s lead in deviating slightly from the wording of the act. Compare Cal Laws 1923, ch 339, § 2, with Or Laws 1925, ch 260, § 2. Both the California and Oregon laws provided:
“[N]o person who has been convicted of a felony against the person or property of another or against the government of the United States or of the state of Oregon[/California] or of any political subdivision thereof shall own or have in his possession
or under his custody or control any pistol, revolver or other firearm capable of being concealed upon the person.”
Or Laws 1925, ch 260, § 2; Cal Laws 1923, ch 339, § 2.
Thus, even though there is no direct statement of the 1925 Oregon legislature‘s policy choices in enacting what is now
As previously alluded to, the turn of the century saw a sharp increase in crimes, particularly involving the use of small firearms. In 1922, “over 90 per cent of the murders in this country [were] committed by the use of pistols.” Swaney,
8 ABA J at 591. Indeed, a report by the California Crime Commission explained:
“In a very large percentage of the serious crimes now being committed, a firearm of some sort is used. Robberies and burglaries are almost invariably committed with the aid of pistols. Guns are frequently used in murders, manslaughters, highjacking and rum-running cases. The pistol came into its own, as an effective weapon of the criminal, when the present day automobile made the fast getaway possible. Automobiles are being used not only as a means of escape but as a place from which shots are fired.
“The sale of automobiles can not be regulated to keep them out of the hands of criminals, but the sale of firearms can be regulated and effectively controlled.”
James A. Johnston et al., Report of California Crime Commission 20 (1929).
With those concerns in mind, states began enacting statutes regulating the sale and possession of firearms and, in response to a call for uniformity, the USRA Act and the Uniform Firearms Act were drafted. Imlay, 12 ABA J at 767. One of the key provisions in those statutes and proposed uniform laws was that “[o]ne convicted in a state of a crime of violence [was] absolutely forbidden to own or possess a pistol or revolver.” Id. at 768.
“The justification for the section is the protection afforded by prohibiting the possession of pistols to men who are liable to use them in a way dangerous to society. Experience has shown that crimes of violence are much more likely to be committed by men who have previously been convicted of such offenses.”
Sam B. Warner, The Uniform Pistol Act, 29 Am Inst Crim L & Criminology 529, 538 (1939). Indeed, a newspaper article reporting the enactment of the California statute stated that the law was “[a]imed at disarming the lawless.” New Firearms Law Effective on August 7, SF Chron, July 15, 1923, at 3.
Early cases interpreting the California firearm law echoed those concerns:
“The purpose of the act is to conserve the public welfare, to prevent any interference with the means of common defense in times of peace or war, to insure the public safety by preventing the unlawful use of firearms. It cannot be assumed that the Legislature did not have evidence before it, or that it did not have reasonable grounds to justify the legislation, as, for instance, that *** persons who have been convicted of a felony were more likely than citizens to unlawfully use firearms or engage in dangerous practices against the government in times of peace or war, or to resort to force in defiance of law. To provide against such contingencies would plainly constitute a reasonable exercise of the police power.”
In re Rameriz, 193 Cal 633, 650, 226 P 914 (1924). Similarly, in another California decision, the court held
“The danger to the public safety from the indiscriminate carrying of deadly
weapons, especially by persons who are criminally inclined, is a matter of common knowledge, and, as justifying the regulation of the practice thereof by the state in the exercise of its police power[.]”
People v. McCloskey, 76 Cal App 227, 229, 244 P 930 (1926).1
This court has recognized that Oregon‘s felon-in-possession statute was adopted with the same policy in mind. In State v. Robinson, 217 Or 612, 614, 343 P2d 886 (1959), the defendant was convicted of violating
and legitimate: “A firearm of the kind described in
“By his own felonious conduct he classifies himself and places himself in a category different from that composed of the law abiding. When the legislature concludes that a person of that kind can not be trusted with a concealable weapon we surely can not say that its decision lacks reason.”
Id. at 617. Similarly, in Tippie, the court stated that it is clear that “[t]he legislature made a decision that a person convicted of a felony is such a great potential danger that he should not be permitted to carry a concealable weapon.” 269 Or at 665.
Clearly, then, the underlying policy of
In short, the usual indicators that this court has considered relevant under
Defendant insists that the fact that
conclusively that the statute does not provide the sort of clear intention that
That reasoning fails on at least three grounds. To begin with, it cannot be reconciled with the case law that we have described, which recognizes that, although the legislature‘s failure to expressly require proof of a culpable mental state with respect to a particular element may not be conclusive evidence that it intended to dispense with such proof, Rutley, 343 Or at 375, it may in some cases strongly suggest such a clear intent, Miller, 309 Or at 368. Defendant cites Rutley, but asserts that it stands for the proposition that a statute‘s “silence is not an indication of a legislative intent to dispense with a culpable mental state.” That is incorrect. What Rutley says is that “statutory silence alone is not a sufficiently clear indication of legislative intent to dispense with a culpable mental state,” 343 Or at 375, which is a different point altogether.
Aside from that, the argument is built on a false premise, namely, that a statute that imposes criminal liability without proof of a culpable mental state as to each and every element of an offense imposes liability without fault. Merely because proof of a culpable mental state is not required as to a single element does not mean that the statute defining the offense imposes liability without fault. The court considered a similar proposition in State v. Irving, 268 Or 204, 520 P2d 354 (1974). At issue in that case was the extent to which former
such proof, in order to avoid imposing criminal liability without fault. This court reversed, holding that, although the text of the statute said nothing about a culpable mental state, the legislative history established that no such proof is required. Id. at 206. As for the concern that such a holding creates criminal liability without fault, the court responded that “[o]ur interpretation does not render
In this case, merely because it is not necessary to prove that defendant knew that he had been convicted of a felony does not mean that it is not necessary to prove a culpable mental state with respect to other elements of the offense or that he is strictly liable for his attempted possession of a firearm. In that regard, we note that the state alleged that he “knowingly” and “intentionally” attempted to purchase and possess a firearm, and the jury was instructed in accordance with those allegations. In any event, the fact that that the legislature has stated a policy against imposing strict criminal liability does not necessarily mean that, in a given case, the relevant factors—including the silence of the statutory text—do not provide a clear indication to do just that, as Miller makes clear. 309 Or at 368 (concluding that, although the statute defining the offense of DUII and its legislative history were silent as to a culpable mental state, it was nevertheless clear that the legislature intended to create a strict liability offense).
Finally, defendant is mistaken that failing to impose a culpable mental state requirement in this case raises constitutional questions. He cites no case law supporting that assertion. And the pertinent authority appears to be to the contrary. In State v. Hirsch / Friend, 338 Or 622, 625, 114 P3d 1104 (2005), this court upheld the constitutionality of
In summary, based on the multiple indicators discussed above,
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.