State v. Honzel
Decision Date | 03 October 2001 |
Citation | 33 P.3d 346,177 Or. App. 35 |
Parties | STATE of Oregon, Respondent, v. Mark Andrew HONZEL, Appellant. |
Court | Oregon Court of Appeals |
Robert A. Callahan, Portland, filed the brief, for appellant.
Ryan P. Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before EDMONDS, Presiding Judge, and ARMSTRONG, Judge, and VAN HOOMISSEN, Senior Judge.
Defendant appeals his conviction for unlawful possession of a firearm. ORS 166.250.1 He assigns error to the trial court's denial of his motion for acquittal and to the trial court's refusal to give a requested jury instruction. We affirm.
After the stop, defendant was charged with unlawful possession of a firearm, ORS 166.250(1)(a), and the matter went to trial.
At the close of the state's evidence, defendant moved for a judgment of acquittal, arguing that the state had failed to prove that the exception to ORS 166.250(1)(a) in ORS 166.260(2)(a) did not apply to defendant. ORS 166.260(2) provides, in part:
The trial court ruled that there was nothing in the record at that point that would establish that defendant was a member of any shooting club and denied the motion. Defendant then presented his case-in-chief and offered his membership card in a shooting club into evidence. He testified that he had left home intending to go eventually to the shooting range, but that he had not gone to the range because of the lateness of the hour.2 His motion for a judgment of acquittal was not renewed at the close of defendant's evidence.
Defendant was found guilty by the jury and appeals.
On appeal, defendant raises two assignments of error regarding the court's denial of his motion for a judgment of acquittal and the denial of his request for the jury instruction under ORS 166.260(2)(a). As to the denial of the motion for acquittal, defendant argues that:
Defendant's argument assumes that the state has the burden of disproving the applicability of ORS 166.260(2)(a) in its case-in-chief. The state must prove each element of a criminal offense beyond a reasonable doubt. ORS 136.415. Our first inquiry is whether ORS 166.260(2)(a) is an element of the offense of unlawful possession of a firearm under ORS 166.250. In State v. Vasquez-Rubio, 323 Or. 275, 917 P.2d 494 (1996), the Supreme Court employed a useful framework in determining when a statutory provision is an element of an offense. In that case, the statute in question, ORS 166.272, provided that a person committed the crime of unlawful possession of certain weapons if the person "knowingly possesses" one of the listed weapons that is "not registered as required under federal law." The court first turned to the text of the statute, and determined from the text that the crime had at least two elements: (1) knowing possession, and (2) unregistered status of the weapon. It then applied the rule of State v. Tamler & Polly, 19 Or. 528, 25 P. 71 (1890).3 That rule provides that an element of a crime exists when the fact to be proved is necessary to the definition of the offense as enacted by the legislature.
The court turned to the language of ORS 166.272 and, in examining the text and context of that statute, noted that the phrase "not registered as required under federal law" is contained in the same sentence as the other elements of the offense in ORS 166.272. The court contrasted ORS 166.272 with ORS 166.250 and ORS 166.260(1)(a),4 pointing out that the legislature knows how to designate defenses or affirmative defenses by labeling them as such, or by setting forth the limits of the statute's reach, or by using words of limitations such as "except that," "however," or "provided that." It then concluded that the lack of federal registration was an element of the offense for which the state bore the burden of proof.
constitutes a necessary element of unlawful possession of a firearm. The elements of ORS 166.250(1)(a) are (1) the carrying of a certain type of weapon; (2) that is concealed upon the person; (3) the knowledge of that fact; and (4) the absence of a license to carry a concealed firearm. Those elements can be proved without regard to whether a person is a member of a shooting club going to and from a target range. When viewed in context, ORS 166.250 establishes the reach of the statute, and ORS 166.260 qualifies or limits that reach based on specific circumstances. We conclude that ORS 166.260(2)(a) does not provide an element that is necessary to the definition of unlawfully carrying a concealed firearm.5
We turn then to the issue of whether the defense under ORS 166.260(2)(a) is a defense that the state must disprove, or a defense that defendant must prove. ORS 161.055 provides:
Thus, we inquire next whether the defense under ORS 166.260(2)(a) is governed by subsection (1) or (2) of ORS 161.055. ORS 166.260(2)(a) is not one of the affirmative defenses declared by Oregon Laws 1971, chapter 743. However, ORS 161.035(2) authorizes the application of ORS 161.055 to statutes defining offenses and defenses outside those declared by chapter 743. See State v. Brown, 306 Or. 599, 604 n. 5, 761 P.2d 1300 (1988)
.
In Vasquez-Rubio, 323 Or. at 281,917 P.2d 494, the court said:
Similarly, there is no "affirmative defense" language in the text or context of ORS 166.260(2)(a). However, we need not decide in this case whether subsection (1...
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