State v. Bowdry

• Decision Date: 17 August 1983
• Docket Number: No. 68647,68647
• Citation: 337 N.W.2d 216
• Parties: STATE of Iowa, Appellee, v. Larry R. BOWDRY, Appellant.
• Court: Iowa Supreme Court

Page 216

337 N.W.2d 216

STATE of Iowa, Appellee, v. Larry R. BOWDRY, Appellant.

No. 68647.

Supreme Court of Iowa.

Aug. 17, 1983.

Francis C. Hoyt, Jr., Appellate Defender, and Charles L. Harrington, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Mary Jane Blink, Asst. Atty. Gen., William E. Davis, County Atty., and Jonathan B. Hammond, Student Intern, for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McGIVERIN, LARSON, and WOLLE, JJ.

UHLENHOPP, Justice.

This appeal presents a problem of the burden of proof in prosecutions for carrying concealed weapons. Iowa Code § 724.4 (1981).

Defendant Larry R. Bowdry carried or transported a revolver in an automobile. He was arrested and tried for violating section 724.4. The State did not introduce evidence that Bowdry did not have a permit to carry or transport a revolver or that the peace officer demanded Bowdry display a permit when the officer apprehended him. At trial, Bowdry made appropriate objections raising this ground, which the trial court overruled. Bowdry was convicted and sentenced and appealed.

Sections 724.4 and .5 of the Code provide:

724.4. A person who goes armed with a dangerous weapon concealed on or about his or her person, or who, within the limits of any city, goes armed with a pistol or revolver, or any loaded firearm of any kind, whether concealed or not, or who knowingly carries or transports in a vehicle a pistol or revolver, commits an aggravated misdemeanor, provided that this section shall not apply to any of the following:

1. [Weapon in own dwelling, etc.]

2. [Peace officer.]

3. [Armed forces.]

4. [Correctional officers.]

5. [Weapons in certain containers.]

6. [Weapons in vehicles under certain conditions.]

7. [Target practice.]

8. Any person who has in his or her possession and who displays to any peace officer on demand a valid permit to carry weapons which has been issued to the person, and whose conduct is within the limits of that permit. No person shall be convicted of a violation of this section if the person produces at his or her trial a permit to carry weapons which was valid at the time of the alleged offense and which would have brought the person's conduct within this exception if the permit had been produced at the time of the alleged offense.

724.5. It shall be the duty of any person armed with a revolver, pistol, or pocket billy concealed upon his or her person to have in his or her immediate possession the permit provided for in section 724.4, subsection 8 and to produce same for inspection at the request of any peace officer. Failure to so produce such permit shall constitute a simple misdemeanor.

The question presented is whether the State has the initial burden of proving that Bowdry did not have a permit to carry or transport the weapon. Disagreement appears to exist on the point. Compare Dunahoo, The New Iowa Criminal Code: Part II, 29 Drake L.Rev. 491, 573 (1979), with II Iowa Uniform Jury Instructions, Nos. 2408-2409. See also State v. Alexander, 322 N.W.2d 71 (Iowa 1982).

Prior Iowa law provided in section 695.2 of the Iowa Code (1977):

No person shall carry a pistol or revolver concealed on or about his person or whether concealed or otherwise in any vehicle occupied by him ... without a permit therefor as herein provided.

Under that section the burden was on the State from the beginning to prove absence of a permit. State v. Cochran, 179 Iowa 1304, 1309, 162 N.W. 755, 756 (1917). Bowdry argues that the new criminal code is primarily a restatement of prior law and that the same result should obtain at present. Emery v. Fenton, 266 N.W.2d 6, 8 (1978).

The precise question is whether the absence of a permit is or is not an element of the offense itself which the State must initially prove under In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). See State v. Wilt, 333 N.W.2d 457, 461 (Iowa 1983); State v. Delay, 320 N.W.2d 831, 834 (Iowa 1982); State v. Boland, 309 N.W.2d 438, 440-41 (Iowa 1981); State v. Moorhead, 308 N.W.2d 60, 62-63 (Iowa 1981); State v. Gibbs, 239 N.W.2d 866, 867-69 (Iowa 1976).

From the change in the structure of the statute, we conclude that the General Assembly did not intend to make the absence of a permit an element of the offense. Essentially the prior statute provided that no one should carry a revolver in a vehicle without a permit; the nonexistence of a permit inhered in the definition of the crime. The drafters of the new criminal code were aware of that prior definition of the offense and of our interpretation placing the burden of proof on the State with reference to the matter of a permit, and changed the structure of the statute.

In the initial paragraph of new section 724.4, defining the crime, the drafters did not include the language, "without a permit...." Instead, they added a proviso that the section should not apply in eight situations which they then listed. One of the situations involves the permit issue. Our first reaction to the section is that the Assembly probably did not intend the State must initially negate the several exceptions in every prosecution under section 724.4. Cf. State v. Delay at 834 ("It is unreasonable to think that the legislature intended to place upon the State the burden of laboriously disproving each of those forms of justification in every prosecution for assault, no matter how...