State v. Van Norsdall, 90-CR-0193-15

• Decision Date: 20 April 1994
• Docket Number: No. 90-CR-0193-15,90-CR-0193-15
• Citation: 873 P.2d 345,127 Or.App. 300
• Parties: STATE of Oregon, Respondent, v. Robert Terry VAN NORSDALL, Appellant. ; CA A70546.
• Court: Oregon Court of Appeals

Page 345

873 P.2d 345

127 Or.App. 300

STATE of Oregon, Respondent, v. Robert Terry VAN NORSDALL, Appellant.

No. 90-CR-0193-15; CA A70546.

Court of Appeals of Oregon.

Argued and Submitted Nov. 30, 1993.

Decided April 20, 1994.

Peter Gartlan, Deputy Public Defender, argued the cause for appellant. With him on the opening brief was Sally L. Avera, Public Defender. Appellant filed a supplemental brief pro se.

Ann Kelley, Asst. Atty. Gen., argued the cause for respondent. With her on the briefs were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

ROSSMAN, Presiding Judge.

Defendant appeals his convictions, after a jury trial, of assault in the first degree with a firearm, ORS 163.185; 161.610; and three counts of felon in possession of a firearm. ORS 166.270. The facts, which are essentially undisputed, are stated in the light most favorable to the state. State v. Langley, 314 Or. 247, 249, 839 P.2d 692 (1992).

Defendant lived with Marcey Kimler and her children. On the evening of November 17, 1990, defendant had been drinking when the victim, Capehart, came to visit Kimler's children. Capehart had been drinking as well, and he and defendant drank together for a while. Later that evening, defendant argued with Kimler about something. He pushed her down the steps leading to the porch of her house. Capehart intervened, calling out to defendant from across the yard, "Quit pushing Marcey. If you have to be beating up on someone, then beat me up." Defendant approached Capehart, making Karate motions. Capehart removed his coat and kicked defendant on the left temple, causing them both to fall. As they got up, Capehart told defendant:

"[T]his was B.S. This is between friends and I'm going home. If you want to talk--talk about it, you call me on the phone tomorrow. We'll talk about it."

Capehart went to his car, started it, and allowed it to warm up a few minutes. When he turned on his headlights, he saw defendant standing in front of the car. Defendant had fired a shot at Capehart from a small .22 caliber handgun, but Capehart was unaware of that. Capehart opened the door, thinking that defendant wanted to talk. He got out, stood between the door and the chassis and asked, "What do you want, Robert?" Defendant said, "Do you want to mess with me? Do you want to mess with me?" Defendant then fired the gun again, and a bullet hit Capehart in the throat, knocking him back several feet onto the ground. By this time, Kimler had called 911 to report the fight, had loaded her children into her car, and was about to drive off. When she saw Capehart lying on the ground, she offered to take him to the hospital. He refused, not wanting to upset the children. As he stood up to get into his own car, Capehart told defendant that he wouldn't mention defendant's name. He drove himself to the hospital.

After being charged and before trial, defendant subpoenaed documents from the county's Crime Victims' Assistance office showing that the Victims' Assistance Fund had paid $5,600 toward Capehart's medical bills, which were over $28,000. In order to be eligible for the funds, Capehart had to have been a "victim" and had to have agreed to cooperate with the state in the apprehension and prosecution of defendant. ORS 147.015. The state moved to quash the subpoena, on the ground that the evidence was irrelevant and that it would be contrary to public policy to permit its use at trial. The state concedes that the trial court's ruling quashing the subpoena effectively precluded any evidence concerning Capehart's receipt of funds from the Crime Victims' Assistance Fund, and that it would have been futile for defendant to have made an offer of proof. See State v. Olmstead, 310 Or. 455, 461, 800 P.2d 277 (1990). We accept the concession.

Defendant contends that the excluded evidence was relevant pursuant to OEC 609 to show that Capehart was biased or had an interest in the outcome of the case. We agree with defendant's proposition that evidence of bias or interest is generally admissible. State v. Hubbard, 297 Or. 789, 688 P.2d 1311 (1984); Kirkpatrick, Oregon Evidence 377 (2d ed. 1989). Assuming, however, that the evidence in dispute could have shown Capehart's bias or interest, if any, we conclude that its exclusion was harmless. Ordinarily, a reasonable juror might assume that the victim of a shooting would be biased against the defendant. There is no dispute that defendant shot Capehart or that the circumstances were as Capehart described them. Indeed, defendant's attorney urged the jury to believe Capehart's account of the incident. The only disputes concerned whether defendant intended to shoot Capehart and whether defendant believed that he was acting in self-defense. In this case, the answers to those questions are in the mind of the actor and can only be inferred from the undisputed evidence of what transpired. Defendant's memory of the evening is sparse. He testified that he remembers Capehart hitting him on the side of the head. He also remembers seeing Capehart's car and thinking that Capehart was coming at him. However, he has no memory whatsoever of having shot Capehart. Capehart himself testified that he did not think that defendant intended to shoot him. If anything, it appears that Capehart was biased in favor of defendant. In the light of this record, there is little likelihood that the exclusion of the evidence affected the verdict. State v. Hansen, 304 Or. 169, 180-81, 743 P.2d 157 (1987). Accordingly, any error was harmless.

Additionally, defendant asserts that the trial court erred in refusing to instruct the jury that, in order to convict him of being a felon in possession of a firearm, the jury had to find that defendant knew he was a felon at the time he possessed the firearm. Defendant contends that the court further erred when it instructed the jury that it did not need to find that defendant knew he was a felon in order to convict him.

ORS 161.095(2) provides, in part, that

"a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state."

ORS 166.270, which prohibits the possession of firearms by those convicted of a felony, does not prescribe a mens rea that the state must prove with respect to any of the elements of the crime. ORS 161.115(2) provides, in part:

"[I]f a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if the person acts intentionally, knowingly, recklessly or with criminal negligence." (Emphasis supplied.)

ORS 161.025(1)(d) explains that the purpose of the criminal code is to

"define the act or omission and the accompanying mental state that constitute each offense * * *." (Emphasis supplied.)

An "act" is a "bodily movement." ORS 161.085(1). The "act" prohibited by ORS 166.270 is the possession of firearms. The actor's status of being a felon, although an element of the crime, is not an act; it is simply part of the attending circumstances. There is no mental state, i.e., mens rea, applicable to it.

In State v. Blanton, 284 Or. 591, 588 P.2d 28 (1978), the Supreme Court divided the elements of an offense into two categories: (1) those that relate to or define "the substance or quality of the forbidden act," which necessarily require a culpable mental state, and (2) those that relate to conditions that exist outside the actor's state of mind, such as "venue, jurisdiction, statutes of limitation and the like," for which no culpable mental state is required. 284 Or. at 595, 588 P.2d 28. The status of being a felon is within this latter category. As the court said in State v. Miller, 309 Or. 362, 369, 788 P.2d 974 (1990), the existence of a status that is an element of the crime (in that case, being under the influence of intoxicants,) has nothing to do with the person's mental state. We conclude that the status of being a felon is not an element that is logically provable by a mens rea, and that, therefore, it is not an element to which a culpable mental state applies under ORS 161.115(2).

There should be no concern here that defendant has been convicted on the basis of strict liability. The state has acknowledged the appropriate culpable mental state by charging defendant with "knowingly" possessing a firearm. Defendant admits that he knowingly possessed a gun. The element of possession is the only material element of the charge that lends itself to the application of a mens rea requirement.

Just as a conviction for theft in the third degree would not be reversed on the basis of a defendant's unchallenged testimony that he did not know that the value of the property exceeded $50, see ORS 164.043(b), because the value of the property is independent of the question of whether the defendant is or should be personally responsible for his acts, here, being a felon is separate from the acts that constitute the crime of possessing a firearm, and is not subject to a culpable mental state. In other words, a felon will not be acquitted of the crime of being a felon in possession of a firearm simply because he claims to have forgotten his prior felony conviction or professes not to understand what a "felon" is. That is the necessary and logical consequence of the dissent's opinion, and we reject it. Defendant's ignorance of his own status is no excuse. ¹

We have considered and reject without discussion defendant's supplemental assignment of error.

Affirmed.

LEESON, Judge, concurring in part; dissenting in part.

The majority holds that a felon who possesses a firearm under an honest and reasonable belief that he or she is not a felon, nonetheless is guilty of felon in possession of a firearm, ORS 166.270, a felony offense punishable by up to five years in prison. Because I believe that the applicable sta...