State v. Vance

• Decision Date: 27 February 1979
• Citation: 285 Or. 383,591 P.2d 355
• Parties: STATE of Oregon, Respondent, v. Kenneth Howard VANCE, Petitioner. TC 077-07-09250; CA 9804; SC 25892. . *
• Court: Oregon Supreme Court

Page 355

591 P.2d 355

285 Or. 383

STATE of Oregon, Respondent, v. Kenneth Howard VANCE, Petitioner.

TC 077-07-09250; CA 9804; SC 25892.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Jan. 3, 1979.

Decided Feb. 27, 1979.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

TONGUE, Justice.

Defendant was convicted of robbery in the first degree under ORS 164.415(1), based on an information alleging that in the course of committing theft he "threaten(ed) the immediate use of physical force" upon the victim of the robbery and "was armed with a deadly weapon, to-wit: a handgun." The trial court denied defendant's motion of acquittal for failure of proof that "a deadly weapon was used" (in this case, that the gun was loaded). The trial court, over defendant's exception, also instructed the jury that "if a firearm is pointed at another within firing range, you are permitted but not required to infer that the firearm was loaded." Defendant appealed.

The Court of Appeals affirmed the conviction without opinion (35 Or.App. 267, 582 P.2d 66 (1978)). We granted defendant's petition for review because of concern over two questions, as stated in a letter from the court to counsel:

"1. The difference between first degree and second degree robbery as defined in ORS 164.405 and ORS 164.415 appears to be whether defendant's weapon is actually deadly or only 'purports to be dangerous or deadly.' In making the degree of the crime depend on this difference, did the legislature mean to let a jury infer beyond a reasonable doubt that a gun is loaded for purposes of first degree robbery from the mere representation that it 'purports to be loaded' required for second degree robbery, without additional evidence?

"2. If the answer to Question 1 is 'yes,' does this unconstitutionally place the burden on defendant to negate the distinguishing element of first degree robbery and to sacrifice his privilege not to testify?" ¹

The legislature intended to continue to permit the jury to infer that a gun pointed by a robber at a victim is loaded.

Prior to the adoption of the new Criminal Code in 1971 it was provided by ORS 163.280 that if a person "armed with a dangerous weapon" assaulted another and robbed him of money or property, such a person, upon conviction, was subject to imprisonment for a period of up to life. ² At that time it was also provided by ORS 163.290 that if a person "not being armed with a dangerous weapon" robbed another person of money or property, that person was subject to imprisonment for a period of up to 15 years. ³ It was also then provided by ORS 163.270 that if a person assaulted another with intent to commit robbery or rape, such a person was subject to imprisonment for up to the maximum period provided for the crime intended. ⁴ Finally, ORS 163.250 provided that if a person "armed with a dangerous weapon" assaulted another with such a weapon, that person was subject to imprisonment for a period of up to 10 years. ⁵

Prior to 1971, this court had held that when, in the course of a robbery, an assault with intent to commit robbery or an assault with a dangerous weapon, a person points a gun at another within firing range the jury may infer that the gun was loaded, and therefore was a "dangerous weapon" for the purposes of ORS 163.280, 163.250 and 163.270, and their predecessor statutes. ⁶

It appears from the minutes of Subcommittee No. 1 of the Criminal Law Revision Commission on November 21, 1968 (at 4), that in the course of its drafting of the present statutes defining robbery in the first, second and third degrees (ORS 164.415, 164.405 and 164.395) ⁷ the Commission considered whether, under such statutes, the jury could continue to infer that a gun pointed at another and used in a robbery was loaded. At that time a statement was made by Judge James Burns, as chairman of that subcommittee, to the effect that "(t)he unloaded gun situation * * * was one which frequently occurs and normally the state was not able to prove that the gun was actually loaded." Judge Burns also said that "(i)f a gun were used in a robbery * * * the jury was presently entitled to infer that the gun was loaded." According to those minutes, Mr. Donald L. Paillette (Project Director for the Commission), then stated that "the language of the draft would not disturb the inference."

In addition, as conceded by defendant's counsel in this case, the Commentary to ORS 161.015, § 3 of the (then) Proposed Oregon Criminal Code, p. 2 (1971) supports the same view by stating:

" * * * But the use of a firearm within carrying distance of the threatened victim in Oregon allows an inference that the weapon was loaded and the burden of going ahead with the evidence to prove that the weapon was not loaded is on the defendant * * * ."

On oral argument it was stated by Mr. Paillette, then appearing as Assistant Attorney General on behalf of the state in this case, that the contrary conclusion appears from a statement by him at a previous meeting of the same subcommittee on August 9, 1968 (at 13-14). We have read the minutes of that meeting. ⁸ We find them to be unclear, and also find that any doubt as to whether the inference was intended to be continued was removed by minutes of the subsequent meeting and by the subsequent "commentary," as quoted above.

In our view, it is immaterial to this analysis that ORS 164.405 provides that a person commits robbery in the second degree, with a lesser penalty, if he, although not actually "armed with a deadly weapon" (as required for robbery in the first degree under ORS 164.415), "represents by word or conduct that he is armed with what purports to be a dangerous or deadly weapon." The adoption of that statutory provision in 1971 was not intended to make it more difficult for the state to prove robbery in the first degree. Instead, it is clear from the minutes of the Criminal Law Revision Commission that ORS 164.405 was intended to "strengthen existing law" by providing for intermediate situations, such as the cases in which the defendant had "a toy weapon or the threatened use of a nonexistent weapon, such as a finger in the pocket." In such cases, the defendant had "represented by word or conduct that he (was) armed with what purports to be a dangerous or deadly weapon," i. e., an actual gun, and he could be convicted of second degree robbery under ORS 164.405 without requiring proof that he was in fact armed with an actual gun. (See Minutes of Criminal Law Revision Commission, November 21, 1968 (at 3 and 5).)

For these reasons, we hold that the legislature, in adopting ORS 164.405 and 164.415, did not intend to change the then existing law, as established by prior decisions of this court, to the effect that when, as in this case, a person points a gun at another within firing range in the course of a robbery, the jury may infer that the gun was loaded. The question remains, however, whether such inference unconstitutionally shifts the burden of proof to the defendant or violates his privilege against self-incrimination.

2. Such an inference does not shift the burden of proof to the defendant or violate his privilege against self-incrimination.

Defendant contends, in response to the second of the questions posed by this court that:

"The effect of allowing a jury to infer a gun is loaded because it is used in a robbery is to unconstitutionally shift the burden of proof to the defendant to negate this material fact, and force him to sacrifice his privilege not to testify in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 10 and 12 of the Oregon Constitution." ⁹

a. Burden of proof.

In support of his first contention, defendant relies upon decisions by the Supreme Court of the United States holding that as a matter of constitutional due process a state must prove beyond a reasonable doubt every material element of the crime with which a defendant is charged, citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Defendant says that for this reason, a state "may not shift the burden of proof to the defendant by presuming that ingredient (or material element) upon proof of other elements of the offense," citing Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and quoting Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 2330, 53 L.Ed.2d 281 (1977).

Based upon these propositions and authorities, defendant contends that

" * * * (W)here the state must rely upon an inference or presumption to prove a material element of the crime charged, this burden may not constitutionally be shifted to defendant."

" * * *

"In Oregon, the difference between first and second degree robbery is whether the weapon used is a deadly weapon, or only 'purports to be dangerous or deadly'. Once the state proves a gun was used in a robbery, it may then rely upon an inference to prove the gun was loaded."

"It is defendant's opinion that the fact the gun is loaded is a material element of the crime of robbery in the first degree, and under the holding of Mullaney, the burden of proving the gun was Not loaded may not constitutionally be shifted to defendant." (Emphasis in original)

We may agree that in a case involving the prosecution for robbery in the first degree under ORS 164.415(1)(a), the state has the burden to prove beyond a reasonable doubt all material elements of that crime, including the fact that defendant was "armed with a deadly weapon," and that in order to establish that element of the crime the state must prove beyond a reasonable doubt that the gun was loaded. We do not, however, agree with the remainder of defend...