State v. Blanton
Decision Date | 24 October 1977 |
Citation | 31 Or.App. 327,570 P.2d 411 |
Parties | STATE of Oregon, Respondent, v. Michael Ray BLANTON, Appellant. |
Court | Oregon Court of Appeals |
Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C. J., and LEE and JOHNSON, JJ.
Defendant, age 22, was charged and convicted of the crime of Criminal Activity in Drugs, ORS 167.207, for unlawfully furnishing marijuana to a minor, age 17. ORS 167.207 provides:
Defendant was convicted of a Class A felony under subsection (4) and sentenced to a maximum of ten years imprisonment. 1
Defendant assigns as error the trial court's refusal to instruct the jury that, in order to find him guilty of a Class A felony, the state must prove beyond a reasonable doubt that defendant knew that the person with whom he dealt was under 18 and at least 3 years younger than defendant. 2 Defendant's argument is premised on Article 2 of the Criminal Code, ORS 161.095 to 161.125, setting forth the general culpability requirements applicable to all criminal statutes.
At the outset, ORS 161.025 provides:
The official Commentary to the Criminal Code explains:
Pursuant to these principles, ORS 161.095(2) provides:
"(2) Except as provided in ORS 161.105, a person is not guilty of an offense unless he acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state."
The only exception to the requirement of this statute that a culpable mental state be found for each material element appears in ORS 161.105, which states that a culpable mental state is not required for a "violation" or for certain offenses defined by a statute outside the criminal code. ORS 167.207 is part of the criminal code.
ORS 161.115 sets forth the rules for determining the degree of culpability required. Subsection (1) of the statute states:
"(1) If a statute defining an offense prescribes a culpable mental state but does not specify the element to which it applies, the prescribed culpable mental state applies to each material element of the offense that necessarily requires a culpable mental state."
The phrase "necessarily requires a culpable mental state" may add some confusion to our analysis. However, in view of the strong policy embodied in the statutes of requiring a culpable mental state for every material element, it is apparent that this phrase refers to all elements which go to the substance of the conduct prohibited. The only elements which do not "necessarily require a culpable mental state" are those which relate to jurisdiction and the like but are unrelated to the prohibited conduct. The Commentary makes this clear:
" * * * The quoted phrase is designed to make it clear that the draft does not require scienter with respect to an element relating solely to the statute of limitations, jurisdiction, venue and the like." Commentary at 9.
The import of these statutes and the Commentary is clear. Because of the enhanced penalty provision of ORS 167.207(4), the age of the person to whom narcotic or dangerous drugs are furnished is a material element of the crime, and an element which necessarily requires a culpable mental state. The required degree of culpability provided in subsection (1) of ORS 167.207 is "knowingly." Under ORS 161.095, that degree of culpability is applicable to every material element of the crime. Any other conclusion would require that we ignore the culpability requirements of Article 2, which the Commentary refers to as "(p)erhaps the single most basic part of the (new Criminal) Code." Commentary at 11.
This case is not controlled by State v. Irving, 268 Or. 204, 520 P.2d 354 (1974). In Irving, the Supreme Court held that for a conviction under ORS 167.232, which makes it a crime to fraudulently sell imitation drugs to a peace officer, it is not necessary to prove that...
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