State v. Soto
| Decision Date | 30 October 1980 |
| Docket Number | No. 13060,13060 |
| Citation | 1980 NMSC 114,95 N.M. 81,619 P.2d 185 |
| Parties | STATE of New Mexico, Petitioner, v. Marty Mario SOTO, Respondent. |
| Court | New Mexico Supreme Court |
The issues presented on certiorari in this case are:
1. Whether the language 'licensed by the department of alcoholic beverage control' is an essential element of the offense of unlawfully carrying a firearm in a licensed liquor establishment, Section 30-7-3, N.M.S.A. 1978, and as such is required to be included in a jury instruction on the offense; and
2. Whether the testimony by the owner that his bar was a licensed liquor establishment and a copy of a duplicate license signed by the clerk of the Board of County Commissioners, Bernalillo County, were sufficient evidence that the bar was an establishment licensed to dispense alcoholic beverages.
The defendant was convicted of unlawfully carrying a firearm in a licensed liquor establishment. Two police officers testified that they saw the defendant with a revolver in the Rio Bravo Bar on the evening of August 4, 1978. The owner of the bar restified that it was a licensed liquor establishment on that date and a copy of a duplicate license signed by the clerk of the board of county commissioners was admitted into evidence as State's Exhibit 1.
Defendant appealed the conviction on the grounds that (1) a license issued by the department of alcoholic beverage control is an essential element of the crime and omission by the trial court of this element from the jury instruction was reversible error, and (2) the State failed to prove that the premises were licensed by the department and so the trial court thus erred in denying the defendant's motion for directed verdict. The Court of Appeals agreed with the defendant and reversed the conviction. Certiorari was granted by this Court. We reverse the Court of Appeals and affirm the district court's conviction of the defendant.
The applicable portion of the criminal statute involved is as follows:
A. Unlawful carrying of a firearm in an establishment licensed to dispense alcoholic beverages consists of carrying a loaded or unloaded firearm on any premises licensed by the department of alcoholic beverage control for the dispensing of alcoholic beverages . . .. (Emphasis added.)
Sec. 3-7-3, N.M.S.A. 1978. The trial court instructed the jury that the State had to prove that:
2. The Rio Bravo Bar, at the time the defendant carried the firearm, was an establishment licensed to dispense alcoholic beverages.
Jury Instruction No. 1A. On appeal the State argues that the above underlined language is not an essential element of the crime and, therefore, need not be included in the jury instruction. We agree. The statutory phrase 'consists of carrying a loaded or unloaded firearm on any premises licensed by the department of alcoholic beverage control' merely defines the previous phrase 'unlawful carrying of a firearm in an establishment licensed to dispense alcoholic beverages . . ..' A...
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