State v. Schodrow
Decision Date | 03 April 2003 |
Citation | 66 P.3d 547,187 Or. App. 224 |
Parties | STATE of Oregon, Respondent, v. Marc Robert SCHODROW, Appellant. |
Court | Oregon Court of Appeals |
Shawn Wiley, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, State Public Defender.
Rolf C. Moan, 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 HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.
Defendant was convicted of unlawful possession of a concealed firearm, ORS 166.250(1)(a), unlawful possession of a short-barreled firearm, ORS 166.272, and possession of a controlled substance, ORS 475.992. Defendant challenges both firearms convictions on appeal. We affirm defendant's conviction under ORS 166.272 without discussion. For the reasons set forth below, we reverse defendant's conviction for unlawful possession of a concealed firearm, ORS 166.250(1)(a), and remand.
Defendant was convicted after a trial to the court. We therefore state the facts in the light most favorable to the state. State v. Andrews, 174 Or.App. 354, 356, 27 P.3d 137 (2001). On June 15, 1997, a police officer drove by defendant, who was walking in the opposite direction. The officer noted that defendant turned his head away then turned around and looked at the officer's car. The officer turned the car around, parked near defendant and asked defendant if he could speak with him. When asked about where he lived, defendant stated that he lived in Gresham and that he was going to babysit for some friends. Defendant then volunteered that he had a shotgun in a pool cue case that he was carrying. The officer opened the case and observed a shotgun that had no stock. The barrel appeared to have been cut, as well. Defendant subsequently was arrested.
At trial, a criminalist with the Oregon State Police testified that he had test fired the shotgun and found it to be operable, despite the fact that parts were missing from it. Defendant testified that he had purchased the shotgun from a man at the Gresham transit center approximately two hours before he was arrested:
27 P.3d 137 ( ).
We begin with the relevant statutory framework. ORS 166.250 provides, in pertinent part:
ORS 166.210(2), in turn, provides the applicable definition of "firearm":
"`Firearm' means a weapon, by whatever name known, which is designed to expel a projectile by the action of powder and which is readily capable of use as a weapon."1
The issue of statutory construction presented in this case is whether a defendant need only knowingly carry an object that turns out to be a firearm or whether the defendant must also know that the object is a firearm—that is, that the object has the characteristics or qualities that cause it to be a firearm within the statutory definition.
993 P.2d 161 (same).
This case, however, does not require us to enter that thicket of case law. Rather, the statute defining the offense, when considered in combination with the definition of the culpable mental state that the statute specifies, provides a complete answer. A culpable mental state is expressly prescribed, and it is specifically directed to the material element of carrying a firearm.
In that regard, although we earlier quoted ORS 166.250(1), it is helpful to quote it again. The pertinent portion of it states:
The statute's text is straightforward. It expressly prescribes a culpable mental state: knowingly. Thus, this is not a statute in which the legislature has been silent as to whether a culpable mental state is required at all. Additionally, the prescribed culpable mental state immediately precedes and directly modifies the prohibited act of carrying any firearm. Given the text and the structure of the statute, there is no doubt that the prescribed culpable mental state—knowingly—attaches to that element.
But the question remains: is it only the act of carrying that must be done knowingly? Or must a defendant also know the nature of what is being carried (i.e., its nature as a firearm)? Considered in isolation, the statute is ambiguous. The ambiguity is a classic one described in hornbook law:
Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law § 27, 193 (hornbook series 1972).
The ambiguity disappears, however, when the applicable definition of "knowingly" is incorporated into the statute. ORS 161.085(8) provides:
"`Knowingly' or `with knowledge,' when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists."
(Emphasis added.) By force of that definition, to knowingly "carry a firearm" requires more than the person's awareness that he or she is engaged in the conduct of carrying an object of some or any kind. Instead, either because carrying "a firearm" is an aspect of the nature of the conduct or a circumstance described by the statute, a person must also be aware that the object he or she is carrying is a firearm. That awareness requires, in turn, knowledge that the weapon has the characteristics of a firearm—namely, as relevant to defendant's challenge, that it is readily capable of use as a weapon. See ORS 166.210(2).
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