Harris v. State, 05-29.

• Decision Date: 28 June 2006
• Docket Number: No. 05-29.,05-29.
• Citation: 2006 WY 76,137 P.3d 124
• Parties: Frank Alan HARRIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

137 P.3d 124

2006 WY 76

Frank Alan HARRIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 05-29.

Supreme Court of Wyoming.

June 28, 2006.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Public Defender; Jesse Hardy, Student Intern. Argument by Mr. Hardy.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General. Argument by Mr. Rehurek.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Mr. Harris was charged under Wyo. Stat. Ann. § 6-8-102 (LexisNexis 2005) which prohibits a person previously convicted of a violent felony from possessing a firearm. He entered a conditional guilty plea, reserving his right to appeal the district court's ruling on two pretrial motions. Mr. Harris contends the district court should have granted his motion to dismiss because he was charged under an unconstitutionally vague statute. He also claims the court erred by granting the State's motion in limine precluding him from presenting evidence that he did not knowingly violate the law. We affirm.

ISSUES

[¶ 2] Although Mr. Harris presents four issues for review, we condense and rephrase them as:

I. Is a muzzle-loading black powder rifle a "firearm" as set forth in Wyo. Stat. Ann. § 6-8-102?

II. Did the district court err when it denied Mr. Harris' motion to dismiss finding that Wyo. Stat. Ann. § 6-8-102 is not unconstitutionally vague both on its face and as applied to Mr. Harris even though the statute does not define the term firearm?

III. Did the district court err by granting the State's motion in limine which precluded Mr. Harris from presenting evidence regarding his understanding that it was not illegal for him to possess the black powder rifle?

FACTS

[¶ 3] Mr. Harris was previously convicted of two felonies, aggravated robbery and robbery. Both convictions are violent felonies as defined by Wyo. Stat. Ann. § 6-1-104(xii) (LexisNexis 2005). He has never been pardoned for these convictions. As a violent felon, Mr. Harris is prohibited from possessing firearms pursuant to Wyo. Stat. Ann. § 6-8-102 which provides:

Any person who has previously pleaded guilty to or been convicted of committing or attempting to commit a violent felony or a felony under W.S. 6-5-204(b), and has not been pardoned and who uses or knowingly possesses any firearm is guilty of a felony punishable by imprisonment for not more than three (3) years, a fine of not more than five thousand dollars ($5,000.00), or both.

(Emphasis added.) Mr. Harris does not dispute that he is a violent felon or that it is unlawful for him to possess firearms. However, according to Mr. Harris, he did not violate the statute because the rifle he purchased is not a firearm. He also contends that his mistaken belief that he was legally permitted to possess the rifle is a valid defense to the charge.

[¶ 4] Mr. Harris asserts that he first became interested in obtaining a muzzle-loading black powder rifle when he saw a store catalog¹ that offered it for sale without requiring a background check. According to Mr. Harris, a sheriff's deputy in Converse County and a Wal-Mart employee provided information to him from which he concluded that it would not be unlawful for him to possess the rifle, despite his status as a violent felon. In October 2003, Mr. Harris purchased a .50 caliber Traditions black powder Sporter Mag rifle from Wal-Mart. After purchasing the rifle, Mr. Harris pawned it at a Mister Money store in Casper.

[¶ 5] On the afternoon of April 5, 2004, Mr. Harris repurchased the rifle from the pawn shop. Shortly thereafter, he was seen loading the rifle in front of the federal building in downtown Casper. Police were notified. When the officers responded, they observed Mr. Harris holding the rifle to his shoulder and pointing it in the direction of heavy traffic on Center Street. The officers approached Mr. Harris with their handguns ready and ordered him to put down the rifle. Mr. Harris complied and was restrained.

[¶ 6] Mr. Harris told the officers he had just purchased the rifle from the pawn shop. He explained that he did not mean to scare anyone—he was merely looking through the scope because it was blurry. Mr. Harris was placed under arrest and taken to the Natrona County Detention Center.

[¶ 7] An Information was filed charging Mr. Harris with "unlawfully and knowingly possess[ing] a firearm after having been convicted of a violent felony, to-wit: Aggravated Robbery and Robbery, in violation of W.S. 1977, as amended, § 6-8-102." On June 10, 2004, Mr. Harris filed a motion to dismiss claiming that the statute is unconstitutionally vague, both on its face and as applied to him, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and art. 1, § 6 of the Wyoming Constitution. A hearing was held on July 9, 2004. The district court denied the motion.

[¶ 8] On August 10, 2004, the State filed its Motion in Limine Concerning Possession of Weapon. The motion stemmed from Mr. Harris' proposed defense that he did not believe a black powder rifle was a firearm. Mr. Harris claims that because he made a mistake of fact, he did not knowingly violate the law. Through its motion, the State sought to exclude any evidence supporting Mr. Harris' theory. The State classified Mr. Harris' mistake as one of law, not fact. The State asserted that violation of Wyo. Stat. Ann. § 6-8-102 is a general intent crime and that a mistake of law is not a defense. The district court agreed and granted the motion.

[¶ 9] After his motion to dismiss was denied and the State's motion in limine granted, Mr. Harris entered a conditional guilty plea. He reserved his right to appeal the district court's decisions on those motions. Mr. Harris was sentenced to a term of eighteen to twenty-four months in the Wyoming State Penitentiary. The sentence was suspended in favor of a two-year term of supervised probation. The Judgment and Sentence was entered on December 1, 2004. This appeal followed.

DISCUSSION

[¶ 10] Mr. Harris contends that the district court erred by construing Wyo. Stat. Ann. § 6-8-102 to include muzzle-loading black powder rifles. He claims that we must supply a definition for the term "firearm" because the legislature has failed to do so. He urges us to adopt the federal definition of firearm because at least one federal statute specifically excludes muzzle-loading black powder rifles.²

[¶ 11] Whether a muzzle-loading black powder rifle constitutes a firearm as contemplated by Wyo. Stat. Ann. § 6-8-102 requires statutory interpretation. Statutory interpretation is a question of law which we review de novo. In re Estate of Seader, 2003 WY 119, ¶ 23, 76 P.3d 1236, 1244 (Wyo.2003). "[T]he plain, ordinary, and usual meaning of words used in a statute controls in the absence of clear statutory provisions to the contrary." Keser v. State, 706 P.2d 263, 266 (Wyo.1985). "[W]here there is plain, unambiguous language used in a statute there is no room for construction, and a court may not properly look for and impose another meaning." Id. "[W]here legislative intent is discernible a court should give effect to that intent." Id.

[¶ 12] Mr. Harris correctly notes that "firearm" is not defined in the statute. However, the term "firearm" is not a word that requires us to supply a new or different definition because it is not ambiguous. See, e.g., DiVenere v. University of Wyoming, 811 P.2d 273, 275 (Wyo.1991) ("[T]he word `recreation' is used in its standard meaning; indeed, we know of no other meaning the word might have."). The American Heritage College Dictionary 521 (4th ed.2002), defines "firearm" as "[a] weapon, esp. a pistol or rifle, capable of firing a projectile and using an explosive as a propellant." Webster's Ninth New Collegiate Dictionary 465 (1991), defines "firearm" as "a weapon from which a shot is discharged by gunpowder." Finally, Black's Law Dictionary 634 (6th ed.1990), defines "firearm" as "[a] weapon which acts by force of gunpowder."³

[¶ 13] Mr. Harris does not dispute that the black powder rifle meets these standard definitions because it is capable of firing a projectile by using an explosive as a propellant. He contends, however, that we should adopt the definition of firearms contained in 18 U.S.C. § 921(a). Muzzle-loading black powder rifles are excluded as firearms under this federal statute. His approach is misguided. The charge against Mr. Harris was not for violating the federal statute. He was charged with violating Wyo. Stat. Ann. § 6-8-102.

[¶ 14] We must give effect to the Wyoming legislature's intent as expressed in the language of the statute. The Wyoming legislature chose to modify the term "firearm" with the word "any." The phrase "any firearm" signifies the legislature's intent to keep firearms away from felons who have demonstrated their propensity for violence. If the legislature intended to create an exception for a muzzle-loading black powder rifle, it could have done so. It did not. We are not free to legislate. In re Estate of Seader, ¶ 23, 76 P.3d at 1244. We cannot read exceptions into a statute that were not made by the legislature. Id. See also, State ex rel. Peterson v. Ellsworth, 59 Wyo. 288, 139 P.2d 744, 748 (Wyo.1943). The inescapable conclusion is that a muzzle-loading black powder rifle falls within the definition of "firearm" as contemplated by Wyo. Stat. Ann. § 6-8-102.

[¶ 15] Mr. Harris also challenges Wyo. Stat. Ann. § 6-8-102, claiming it is unconstitutionally vague both on its face and as applied. We review constitutional challenges de novo. Rabuck v. State, 2006 WY 25, ¶ 13, 129 P.3d 861, 864 (Wyo.2006). We begin our review with the presumption that the statute is constitutional. Carfield v. State, 649 P.2d 865, 870 (Wyo.1982)....