State v. Andrews

• Decision Date: 23 May 2001
• Citation: 27 P.3d 137,174 Or. App. 354
• Parties: STATE of Oregon, Respondent, v. Nakia Tieleen ANDREWS, Appellant.
• Court: Oregon Court of Appeals

27 P.3d 137

174 Or. App. 354

STATE of Oregon, Respondent, v. Nakia Tieleen ANDREWS, Appellant.

990645494; A108874

Court of Appeals of Oregon.

Argued and Submitted December 12, 2000.

Decided May 23, 2001.

Garrett A. Richardson, Portland, argued the cause and filed the brief for appellant.

Jennifer Scott Lloyd, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and WOLLHEIM, Judge, and CENICEROS, Senior Judge.

HASELTON, P.J.

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, 311 Or. 274, 276, 810 P.2d 839 (1991). On June 2, 1999, Portland Police Officer Dick saw a car with inoperable tail lights. After Dick turned on her overhead lights to stop the car, she saw defendant, who was a passenger in the back seat, make several quick movements. As Dick approached the car, defendant looked over her shoulder.

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 must prove that she knew the gun was loaded. The state responded:

"[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, 310 Or. 347, 355, 800 P.2d 259 (1990) (addressing preservation of challenges to jury instructions). Just as the latter is reviewable, so too is the former.

State v. Hull, 286 Or. 511, 517, 595 P.2d 1240 (1979), is illuminating. There, the court addressed how a criminal defendant in a bench trial can obtain, and preserve for review, the trial court's determination of what elements the state must prove:

"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 174 Or.App. at 358, 27 P.3d at 139. That ruling constituted a clear expression of the trial court's "understanding of the elements needed" for the state to convict defendant under PCC 14.32.010(C). Hull, 286 Or. at 517,595 P.2d 1240. Accordingly, defendant's challenge to that ruling is reviewable on appeal.

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, 166 Or.App. 514, 519, 997 P.2d 894 (2000) (court, pursuant to PCC 1.01.170, relied upon the definition of "deadly weapon" in ORS 161.015(2) to construe PCC 14.32.100, which proscribes carrying a concealed dangerous or deadly weapon). Accordingly, we refer to pertinent provisions of the state criminal code, and decisions applying those provisions, for guidance in determining which elements of PCC 14.32.010(C) require proof of a culpable mental state before criminal liability can be imposed.²

Three provisions of the criminal code are particularly pertinent to our analysis here. First, ORS 161.025(1)(d) provides:

"The general purposes of chapter 743, Oregon Laws 1971, are:

"* * * * *

"(d) To define the act or omission and the

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