State v. Courtier

• Decision Date: 12 April 2000
• Citation: 997 P.2d 894,166 Or. App. 514
• Parties: STATE of Oregon, Respondent, v. Russell Orlando COURTIER, Appellant.
• Court: Oregon Court of Appeals

997 P.2d 894

166 Or. App. 514

STATE of Oregon, Respondent, v. Russell Orlando COURTIER, Appellant.

(961047825; CA A101011)

Court of Appeals of Oregon.

Argued and Submitted November 18, 1998.

Decided April 12, 2000.

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

Ann Kelley, 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 De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

LINDER, J.

Defendant appeals his jury conviction for violating Portland City Code (PCC) § 14.32.100, which prohibits carrying "any dangerous or deadly weapon in a concealed manner." The information charging defendant alleged that he "unlawfully and knowingly carr[ied] concealed upon [his] person a dangerous or deadly weapon, to-wit: a nunchaku * * *." At trial, defendant moved for a judgment of acquittal, arguing that an element of the offense is that the item defendant possessed be "commonly known" as a nunchaku. Defendant contended that the prosecution had failed to present evidence on that point and that he therefore should be acquitted. The trial court denied the motion. After the jury returned a verdict of guilt, defendant filed a motion in arrest of judgment, challenging the ordinance as unconstitutionally vague. The trial court denied that motion as well. On appeal, defendant assigns error to both rulings. We affirm.

The relevant facts are few and undisputed. Officers searched defendant upon taking him into custody. In the course of the search, they found what they termed "numchucks" hidden in defendant's pants. The officers described the concealed item as a martial arts weapon consisting of two wooden sticks, with swivels on each end and connected with a chain, and that the officers knew from experience is used to injure people.

Based on his possession and concealment of the item, defendant was charged with violating PCC § 14.32.100, which provides:

"(a) It is unlawful for any person, not authorized by law, to carry any dangerous or deadly weapon in a concealed manner.

"(b) As used in this Chapter, `dangerous or deadly weapon' includes a firearm, metal knuckles, straight razor, weapon of the type commonly known as nunchaku, black jack, sap, or sap glove, and any type of knife other than an ordinary pocketknife with a blade not longer than three and 3-1/2 inches.[<sup>1</sup>] When carried with intent to use the same unlawfully against another, `dangerous or deadly weapon' also includes any instrument or device capable of inflicting injury to the person or property of another."

Defendant relied on subsection (b), arguing that the ordinance requires the prosecution to establish that the weapon that defendant concealed was "commonly known" as a nunchaku.² The trial court concluded that the "commonly known" language in the ordinance does not define an element of the offense but instead is a "way of describing what it is that is unlawful to conceal and possess." We agree.

The structure of the ordinance presents the first problem for defendant's argument. The prohibited conduct is set forth in subsection (a). By its terms, it extends to "any dangerous or deadly weapon." PCC § 14.32.100(a) (emphasis added). Subsection (b) is merely descriptive in nature. The first sentence of subsection (b) identifies particular items that fall within the prohibition. The second sentence describes instruments and devices capable of inflicting injury to person or property when carried with the intent to use them unlawfully. Significantly, it does not declare what "dangerous or deadly weapon" means but only what that terminology includes. See State v. Haynes, 149 Or.App. 73, 76-77, 942 P.2d 295 (1997),

rev den 328 Or. 275, 977 P.2d 1173 (1999) (describing differences between what term "includes" and what it "means"). Thus, "dangerous or deadly weapon" is defined to include—but is not limited to—particularly described and identified articles, as well as articles that have certain capabilities and are carried with a particular state of mind.

In that respect, this ordinance is significantly different from the statute at issue in State v. Vasquez-Rubio, 323 Or. 275, 917 P.2d 494 (1996). The issue there was whether the state was obligated to prove, as an element of the offense of unlawful possession of a machine gun, that the machine gun was not registered under federal law. The reference to a machine gun's registration status was included in the statute's prohibitory language. That is, ORS 166.272 at the time prohibited "knowingly possess[ing] any machine gun * * * not registered as required under federal law."³ The court held that, because the reference to registration status immediately followed another element of the crime (i.e., that the person "knowingly possess[ ] any machine gun"), registration status was a continuation of the description of the offense, and thus an element of the crime itself. Id. at 280, 917 P.2d 494. Here, in contrast, Portland's ordinance prohibits the concealment of any dangerous or deadly weapon. The items described and listed in subsection (b) are not part of the description of the offense, nor are dangerous or deadly weapons limited to the subsection (b) definition.

The precise words used in subsection (b) further defeat the suggestion that the offense requires proof that defendant concealed an item that not only is a nunchaku, but that is commonly known as such. See generally id. (court looks to exact wording of statute to determine what was intended to be included as elements of an offense). Subsection (b) specifically lists firearms, metal knuckles, and straight razors as within the definition of "dangerous or deadly weapon." It then adds "weapon of the type commonly known as nunchaku, black jack, sap, or sap glove." The important words are "of the type." Those words convey that the definition extends to weapons of a certain nature or that have certain essential characteristics—that is, the nature or characteristics of nunchakus, black jacks, saps, or sap gloves. Said another way, what matters under the ordinance is that the concealed item be of a particular character or type, not that it be referred to or perceived as a particular item or thing. Thus, as the trial court aptly observed, this particular reference is a "way of describing what it is that is unlawful to conceal and possess," not a requirement that the prosecution establish what the item is commonly called.

Based both on the ordinance's structure and the exact wording of subsection (b), we reject defendant's argument that he was entitled to a judgment of acquittal because the prosecution failed to prove that the item defendant possessed was "commonly known" as a nunchaku. Defendant was charged with concealing a "dangerous or deadly weapon."⁴ For purposes of his motion, the only question was whether a rational factfinder could conclude beyond a reasonable doubt that the item that defendant concealed was a "dangerous or deadly weapon." See State v. Pierce, 153 Or.App. 569, 575, 962 P.2d 35,

rev. den. 327 Or. 448, 964 P.2d 1030 (1998) (standard of review on denial of judgment of acquittal). Defendant does not dispute that the evidence was sufficient to establish that defendant concealed a nunchaku or that a nunchaku qualifies as a dangerous or deadly weapon. Nor could he. The officers described the nunchaku sticks ("numchucks") and identified them as a martial arts "weapon" used to injure other persons. That testimony is ample to permit a factfinder to conclude that defendant possessed and concealed a weapon designed to inflict serious physical injury and, thus, that he carried concealed a dangerous or deadly weapon. See ORS 161.015(1) (defining dangerous weapon); ORS 161.015(2) (defining deadly weapon); PCC § 1.01.170 (requiring Portland's code to be construed consistent with state criminal laws); State v. Tucker, 28 Or.App. 29, 33, 558 P.2d 1244,

rev. den. 277 Or 491 (1977) (nunchaku sticks are primarily designed and intended for use in combat, and their character as dangerous or deadly weapons is legislatively recognized). The trial court correctly denied the motion for judgment of acquittal.⁵

Defendant's second argument is related to his first. He challenges the trial court's denial of his motion in arrest of judgment, in which he argued that PCC § 14.32.100 is unconstitutionally vague. He contends on appeal, as he did below, that because the offense describes certain weapons as within its scope by reference to how they are "commonly known," the ordinance fails to provide adequate advance notice of what conduct is unlawful and fails adequately to guide judges and juries in deciding whether a defendant's conduct falls within the prohibition in a given case. See generally State v. Cornell/Pinnell, 304 Or. 27, 29, 741 P.2d 501 (1987)

; State v. Graves, 299 Or. 189, 195, 700 P.2d 244 (1985).⁶

Defendant relies largely on Graves, in which the court held that a portion of the definition of "burglar tool" was impermissibly vague. The defendant in that case was indicted for first-degree burglary based on an allegation that he possessed a burglar's tool in the commission of the offense. That allegation, if proved, elevated the crime to first-degree burglary and increased the penalty by 15 years. The particular item that the defendant possessed was an ordinary screwdriver. The statute defined "burglar tool" by specifically listing some devices and by a catch-all phrase that expanded the definition to apply to any "other article adapted, designed, or commonly used for committing or facilitating a forcible entry into premises." Graves, 299 Or. at 191, 700 P.2d 244 (emphasis added). A "screwdriver" was not among the items specifically enumerated in the statute. Nor did it fall under the catch-all that applied to objects "adapted" or "designed" for burglary. Id. at 194, 700 P.2d 244. Under the definition,...