State v. Anderson

• Decision Date: 03 February 2010
• Docket Number: 0612343CR.,A135502.
• Citation: 227 P.3d 192,233 Or. App. 475
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Randy Joe ANDERSON, Defendant-Appellant.
• Court: Oregon Court of Appeals

227 P.3d 192

233 Or. App. 475

STATE of Oregon, Plaintiff-Respondent, v. Randy Joe ANDERSON, Defendant-Appellant.

0612343CR; A135502.

Court of Appeals of Oregon.

Argued and Submitted on May 28, 2009.

Decided February 3, 2010.

Rebecca A. Duncan, Assistant Chief Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Doug M. Petrina, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and CARSON, Senior Judge.

LANDAU, P.J.

Defendant was charged with two counts of felon in possession of a firearm, ORS 166.270. Before trial, he demurred to the indictment, arguing that the state was required to allege and prove that he knew that he was a felon at the time that he possessed the firearms. The trial court disallowed the demurrer, and defendant was convicted on stipulated facts. Defendant now appeals, assigning error to the trial court's disallowance of his demurrer, reiterating the arguments he made before the trial court. For the reasons explained below, we affirm.

While a police officer was lawfully in defendant's house on an unrelated matter, the officer saw a pistol on the nightstand next to defendant's bed. Later, with defendant's permission, the officer looked through the house for contraband. Remembering the pistol he had seen earlier, the officer asked defendant if he had any firearms. Defendant responded that he had two firearms, a pistol that was on his nightstand and a rifle "located between his mattresses"; he noted that both firearms were loaded. In response to the officer's inquiry, defendant stated that both firearms were his. When the officer asked defendant if he was a convicted felon, defendant initially replied that he was not, but then told the officer that he might have a conviction for a commercial fishing violation.

Defendant was charged with two counts of felon in possession. The indictment alleged:

"COUNT 1

"FELON IN POSSESSION OF A FIREARM

"ORS 166.270

"Class C Felony

"The said defendant, on or about the 7th day of December, 2006, in Harney County, Oregon, then and there being, having previously been convicted in Coos County, Oregon on September 11, 1992, of the felony of Violation of Commercial Fishing Laws, did unlawfully and knowingly have under said defendant's custody and control a firearm.

"COUNT 2

"FELON IN POSSESSION OF A FIREARM

"ORS 166.270

"Class C Felony

"The said defendant as part of the same act or transaction set forth above and on or about same date and in Harney County, Oregon, then and there being, having previously been convicted in Coos County, Oregon on September 11, 1992, of the felony of Violation of Commercial Fishing Laws, did unlawfully and knowingly have under said defendant's custody and control a firearm, said acts of defendant being contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon."

As noted, before trial, defendant demurred to the indictment, arguing that the state was required to, but did not, allege that he knew he was a felon at the time he possessed the firearms. Relying on State v. Van Norsdall, 127 Or.App. 300, 873 P.2d 345, rev. den., 320 Or. 131, 881 P.2d 815 (1994)—in which this court held that the state need not prove that a defendant charged with felon in possession knew that he was a felon—the trial court disallowed the demurrer. The matter proceeded to trial on stipulated facts, including an exhibit demonstrating that defendant previously had been convicted of a felony. As noted, the trial court convicted defendant on both counts, and defendant appeals.

On appeal, defendant renews his argument that the state was required to allege that he had a culpable mental state with respect to his status as a felon at the time he possessed the pistol and rifle. He argues that Van Norsdall is no longer good law and that the analysis that this court has applied in more recent cases requires a different result. He asserts that his felon status is a material element of the crime and that, applying the statutes that address when the state must prove a culpable mental state, the state was required to prove such a culpable mental state regarding his status as a felon. Because the state was required to prove a culpable mental state regarding his felon status, defendant concludes, it also was required to allege the culpable mental state in the indictment.

The state responds that Van Norsdall remains good law or, at least, it is not "plainly wrong," and therefore should not be overruled. See State v. Kittel, 203 Or.App. 736, 740, 127 P.3d 1204 (2006) (holding that statutory interpretations should not be overruled unless "plainly wrong"). In any event, the state maintains, even if defendant is correct about what it was required to prove at trial, defendant's challenge is only to the indictment, and the allegations in the indictment are sufficient to withstand a demurrer.

It is true, as defendant suggests, that this court has expressed some doubts as to the continuing vitality of the holding in Van Norsdall in light of more recent cases. See, e.g., State v. Eberhardt, 225 Or.App. 275, 279 n. 1, 201 P.3d 915 (2009) (noting the defendant's argument that Van Norsdall is no longer good law, but concluding that the case "provides no occasion for us to determine if our conclusion in Van Norsdall remains correct"); State v. Rutley, 202 Or.App. 639, 644, 123 P.3d 334 (2005), aff'd in part, rev'd in part, 343 Or. 368, 171 P.3d 361 (2007) (stating that Van Norsdall was "abandoned during the second phase of our culpable mental state jurisprudence"); State v. Andrews, 174 Or. App. 354, 366, 27 P.3d 137 (2001) (analyzing question of when a culpable mental state is required and disavowing Van Norsdall's analysis to the extent it differed from the analysis in that case).

Most recently, in State v. Lockamy, 227 Or.App. 108, 204 P.3d 822 (2009), the parties locked horns over the same argument that defendant makes in this case, viz., that the felon-in-possession statute requires the state to prove a culpable mental state regarding the defendant's felon status. In that case, in which the defendant assigned error to the trial court's denial of his motion for a judgment of acquittal, we explained that, although we normally look to legislative intent to determine what the legislature intended to require the state to prove, we did not need to do so, because

"we conclude[d] that, even assuming that ORS 166.270 requires the state to prove that defendant knew of his status as a felon, the evidence on that point, viewed in the light most favorable to the state and giving the state the benefit of all reasonable inferences, was sufficient for that purpose."

Id. at 114, 204 P.3d 822; accord State v. Schodrow, 187 Or.App. 224, 229, 66 P.3d 547 (2003) (concluding that it was unnecessary to "enter into that thicket of case law" governing whether the state must prove a culpable mental state).

So too in this case. The jurisprudence concerning whether and for which elements of a crime the state must prove a culpable mental state has been described as presenting a "confusing appearance of circularity," State v. Blanton, 284 Or. 591, 595, 588 P.2d 28 (1978); a "patchwork of appellate decisions" that has not been "`entirely consistent,'" Andrews, 174 Or.App. at 362, 27 P.3d 137 (quoting State v. Engen, 164 Or. App. 591, 603, 993 P.2d 161 (1999), rev. den., 330 Or. 331, 6 P.3d 1101 (2000)); or an interpretation of statutory wording that is "gibberish," Rutley, 202 Or.App. at 643, 123 P.3d 334. But, in this case, the issue as it reaches us on appeal is whether the indictment is sufficient. Even assuming that the state was required to prove that defendant had a culpable mental state regarding his status as a felon, we conclude that the indictment is legally sufficient.

We begin with general principles. Article VII (Amended), section 5, of the Oregon Constitution requires, generally, that those charged with commission of any crime punishable as a felony must be charged by grand jury indictment. This court has explained that that provision serves four functions:

"(1) to provide notice so as to enable the defendant to prepare a defense; (2) to identify the crime so as to provide protection against additional prosecution for the same crime; (3) to inform the court as to what charges are being brought against the defendant; and (4) to ensure that the defendant is tried only for an offense that is based on facts found by the grand jury."

State v. Burnett, 185 Or.App. 409, 415, 60 P.3d 547 (2002). ORS 132.550(7) provides that an indictment must contain "[a] statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended[.]" An indictment "fails to state facts constituting an offense when it fails to allege each of the essential elements of the offense." State v. Wimber, 315 Or. 103, 109 843 P.2d 424 (1992). This court and the Supreme Court consistently have held that an indictment "pleaded in the language of the relevant statute ordinarily is sufficient to withstand a demurrer." State v. Crampton, 176 Or.App. 62, 67, 31 P.3d 430 (2001), overruled in part on other grounds by State v. Caldwell, 187 Or.App. 720, 69 P.3d 830 (2003), rev. den., 336 Or. 376, 84 P.3d 1080 (2004); see State v. Lotches, 331 Or. 455, 466, 17 P.3d 1045 (2000), cert. den., 534 U.S. 833, 122 S.Ct. 82, 151 L.Ed.2d 45 (2001) (same). Consistently with the purposes noted above, Oregon courts do not require an indictment to charge a criminal offense with great specificity, relying instead on discovery "`to inform the defendant of the details of...