State v. Morales, 21473

• Citation: 908 P.2d 1258,127 Idaho 951
• Decision Date: 02 January 1996
• Docket Number: No. 21473,21473
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Jose MORALES, Defendant-Appellant.
• Court: Court of Appeals of Idaho

Page 1258

908 P.2d 1258

127 Idaho 951

STATE of Idaho, Plaintiff-Respondent, v. Jose MORALES, Defendant-Appellant.

No. 21473.

Court of Appeals of Idaho.

Jan. 2, 1996.

William H. Wellman, Nampa, for appellant.

Alan G. Lance, Attorney General; Myrna A.I. Stahman, Deputy Attorney General, Boise, and Catherine O. Derden, Little Rock, Arkansas, for respondent. Catherine O. Derden argued.

LANSING, Judge.

Jose Morales was charged with carrying a concealed weapon without a license, I.C. § 18-3302. The magistrate granted a judgment of acquittal at the conclusion of the State's trial evidence because the State did not prove that Morales had no license to carry a concealed weapon. On the State's appeal, the district court reversed that order. Morales now appeals from the district court's decision. The issue presented is whether a defendant's lack of a license to carry a concealed weapon is an element of the offense under I.C. § 18-3302 upon which the State bears the burden of proof, as the magistrate held, or whether possession of a license is an affirmative defense to be proved by the defendant, as the district court concluded.

In August 1993, a patrol officer stopped a vehicle driven by Morales because the vehicle had defective tail lights. During a routine driver's license check, the officer discovered that Morales' license was suspended. Morales was placed under arrest. During a pat-down search incident to the arrest, the officer found a concealed pistol on Morales' person. Morales was cited for driving without privileges, I.C. § 18-8001, and for carrying a concealed weapon, I.C. § 18-3302 (1991). ¹

Morales pleaded not guilty to both charges and proceeded to trial. At the close of the State's case in chief, Morales moved for a judgment of acquittal on the concealed weapon charge, and the motion was granted. The magistrate reasoned that subsections (7) and (9) of I.C. § 18-3302 define the crime of carrying a concealed weapon and that both subsections require that the act be done "without a license to carry a concealed weapon." The magistrate held that the prosecution therefore bore the burden of proving the lack of a license. Because the State had presented no evidence showing that Morales was without a license to carry a concealed weapon, the magistrate concluded that Morales was entitled to an acquittal.

On appellate review, the district court disagreed with the magistrate's conclusion that subsections (7) and (9) of I.C. § 18-3302 set forth the elements of the charged offense. Instead, the district court held that subsection (14), which recites that a person carrying a concealed weapon in violation of the provisions of I.C. § 18-3302 shall be guilty of a misdemeanor, supplies the definition of the crime. ² Since subsection (14) says nothing about the absence of a license as an element of the offense, the district court held that possession of a valid license is an affirmative defense which must be proved by the defendant. Thus, we must begin our review by determining whether subsections (7) and (9) or subsection (14) of I.C. § 18-3302 define the crime of carrying a concealed weapon.

Issues of statutory interpretation present questions of law over which this Court exercises free review. State v. Martinez, 122 Idaho 158, 161, 832 P.2d 331, 334 (Ct.App.1992); State v. Nelson, 119 Idaho 444, 446, 807 P.2d 1282, 1284 (Ct.App.1991). When an appeal is taken from a decision of the district court rendered in its appellate capacity, we examine the record from the magistrate division independently of, but with due regard for, the district court's decision. State v. Schoonover, 125 Idaho 953, 954, 877 P.2d 924, 925 (Ct.App.1994).

On this appeal the State vigorously argues that if it were required to prove the nonexistence of a concealed weapon license, it would also be required to prove that the defendant does not come within any of the six exemptions from the license requirement provided by I.C. § 18-3302(12), ³ and that such a burden would be unfair to the State. This undesirable result would be avoided, the State further contends, by holding that subsection (14) defines the offense of carrying a concealed weapon.

We disagree with both of the State's assertions. What constitutes the elements of a crime was discussed in State v. Monaghan, 116 Idaho 972, 974, 783 P.2d 311, 313 (Ct.App.1989). There this Court stated:

It is said generally that 'the elements of a crime are its requisite (a) conduct (act or omission to act) and (b) mental fault (except for strict liability crimes)--plus, often, (c) specified attendant circumstances, and, sometimes, (d) a specified result of the conduct.'

Id., quoting W. LaFAVE & A. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 1.8(b), n. 13 (1986). None of these components are found in I.C. § 18-3302(14). That subsection merely classifies the crime as a misdemeanor, rather than a felony, and thereby indirectly establishes the penalty for the offense. ⁴ Moreover, contrary to the State's argument, because I.C. § 18-3302(14) refers to the violation "of the provisions of this section," a holding that subsection (14) defines the crime might well result in the very circumstance the State is trying to avoid--a requirement that the prosecution disprove all of the exemptions found in subsection (12), as well as any other exceptions or exemptions found throughout Section 18-3302.

Unlike subsection (14), subsections (7) and (9) do specifically identify the acts that are prohibited when certain attendant circumstances exist. We conclude, therefore, that subsections (7) and (9) set out the elements of the crime of carrying a concealed weapon.

Having decided that these subsections define the crime, we must next determine whether the nonexistence of a concealed weapon license must be proved in the prosecution's case in chief. Guidance regarding the allocation of the burden of proof is provided by State v. Segovia, 93 Idaho 208, 457 P.2d 905 (1969). There the Idaho Supreme Court interpreted a statute which specified: "Except as otherwise provided in this act, every person who possesses any narcotic except upon the written prescription of a physician, dentist, podiatrist, osteopath or veterinarian licensed to practice in this state, may be punished by imprisonment in the state prison for a term of not to exceed ten (10) years." Id. at 209, 457 P.2d at 906. At issue was whether the phrase "except upon the written prescription ..." was an element of the offense which must be alleged and proved by the prosecution or whether it constituted an affirmative defense for the defendant to raise and prove. The Court first noted that in the absence of a statute otherwise allocating the burden of proof, "the general rule is that the burden is upon the state in a criminal case to negative any exception or proviso appearing in that part of the statute which defines the crime if the exception is 'so incorporated with the language describing and defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted.' " Id. at 210, 457 P.2d at 907 (citation omitted). The Court concluded that the exception, i.e., the phrase "except upon the written prescription" was "an integral part of the offense proscribed and is so incorporated with the description of the offense as to be a material element of it." Id.

With respect to the offense of carrying a concealed weapon, the phrase at issue, "without a license to carry a concealed weapon," is an integral part of the conduct proscribed by subsections (7) and (9) of I.C. § 18-3302. We conclude that it is so incorporated into the description of the...