State v. Vasquez-Rubio
| Decision Date | 07 June 1996 |
| Docket Number | VASQUEZ-RUBI,CR-1865,R |
| Citation | 323 Or. 275,917 P.2d 494 |
| Parties | STATE of Oregon, Petitioner on Review, v. Javierespondent on Review. CC 93; CA A82384; SC S42557. |
| Court | Oregon Supreme Court |
Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause on behalf of petitioner on review. With him on the briefs were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Irene B. Taylor, Deputy Public Defender, Salem, argued the cause on behalf of respondent on review. With her on the brief was Sally L. Avera, Public Defender, Salem.
In Banc
Under Oregon statutory law, "[a] person commits the crime of unlawful possession of a machine gun * * * if the person knowingly possesses any machine gun * * * not registered as required under federal law." ORS 166.272.
The issue in this case is whether the state is required to prove as an element of that crime that the machine gun that defendant knowingly possessed was "not registered as required under federal law" or whether, instead, the burden is on defendant to prove affirmatively that the gun is registered as required under federal law. For the reasons that follow, we conclude that the burden is on the state to prove as an element of the crime that the machine gun that defendant knowingly possessed is "not registered as required under federal law."
The facts are not in dispute. On February 10, 1993, the Coos County Sheriff's Office conducted a lawful search of defendant's home. During that search, officers seized several weapons, one of them the machine gun that is involved in this case. The state charged defendant with unlawful possession of a machine gun, ORS 166.272. The case went to trial. Defendant argued that the state had failed to produce any evidence that the machine gun was "not registered as required under federal law," ORS 166.272. The trial court disagreed, concluding that the statutory term "not registered as required under federal law" is not an element of the crime for which the state has the burden of proof. Over defendant's exception, the trial court refused to instruct the jury that the burden was on the state to prove, as an element of the crime, that the machine gun was "not registered as required by federal law." The jury convicted defendant of one count of unlawful possession of a machine gun. Defendant appealed, and the Court of Appeals reversed, holding thatORS 166.272 requires the state to prove as an element of the crime that the machine gun is "not registered as required under federal law." State v. Vasquez-Rubio, 134 Or. App. 646, 654, 897 P.2d 324 (1995). We affirm the decision of the Court of Appeals.
Because this case involves an issue of statutory interpretation, we must attempt to discern the intent of the legislature in enacting ORS 166.272. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). We begin with the text of that statute. Id. ORS 166.272 provides that "a person commits the crime of unlawful possession of a machine gun" when that person "knowingly possesses any machine gun * * * not registered as required under federal law." According to the text, a person who merely "knowingly possesses any machine gun" does not commit a crime. The statute continues to describe the offense. A person commits a crime under ORS 166.272 only if that person "knowingly possesses any machine gun * * * not registered as required under federal law." (Emphasis added.) Based on an initial examination of the text of ORS 166.272, the crime of unlawful possession of a machine gun has at least two distinct elements. To be guilty of the crime, a person must: (1) "knowingly possess any machine gun" 1that is (2) "not registered as required under federal law. 2
In attempting to discern the intent of the legislature in enacting ORS 166.272, we also consider "rules of construction of the statutory text that bear directly on how to read the text." PGE, 317 Or. at 611. Those rules come from both statutory and case law.Id. One such rule has been part of the case law of this state for over 100 years. In State v. Tamler & Polly, 19 Or. 528, 25 P. 71 (1890), the state charged the defendant with violating the Act of 1889, which in part prohibited the selling of "spiritous, vinuous or malt liquors." Section 11 of that Act provided: "Nothing in this act shall be so construed as to apply in any manner to incorporated towns and cities of this State." To determine whether the state was required to allege and later prove at trial that the liquor was not sold in an incorporated town or city, the court adopted the following rule:
"The exceptions should be negatived only when they are descriptive of the offense, or a necessary ingredient of its definition; but when they afford matter of excuse merely, they are matters of defense and therefore need not be negatived in the indictment." Id. at 530.
Applying that rule, the court held that "the provision of section 11 is no part whatever of the description of the offense nor a necessary ingredient of its definition, but is simply a limitation in the application of the provisions of the Act." 19 Or. at 530-31. Section 11 was a "mere matter of excuse or defense." Id.
Throughout this century, this court has followed the rule set forth in Tamler & Polly. See, e.g., State v. Gilson, 113 Or. 202, 205, 232 P. 621 (1925) (); State v. Schriber, 185 Or. 615, 630, 205 P.2d 149 (1949) ();State v. Elliott, 234 Or. 522, 525, 383 P.2d 382 (1963) ().
Schriber is illustrative. In that case, this court interpreted the following statute:
"Every female bovine animal and bull over 6 months of age within his county shall be tested [for disease] at least once every 12 months as provided in this act; provided, that no beef animals or animals kept principally for beef purposes shall be required to be tested under the provisions of this act except [under specified conditions.]" Or Laws 1947, ch 588, § 2 (emphasis added).
The issue in Schriber was whether the state had to negative the exception that the cattle were kept for beef purposes. 185 Or. at 630. Analyzing the text, which set apart the exception by the phrase "provided that," this court held that "'the exception [is] no part whatever of the description of the offense nor a necessary ingredient of its definition, but * * * simply a limitation in the application of the provisions of the act.'" 185 Or. at 631 (quoting Tamler & Polly, 19 Or. at 530-31).
Applying the rule of Tamler & Polly to this case, the question is whether the statutory term "not registered as required under federal law" is "descriptive of the offense or a necessary ingredient of its definition." Once again, ORS 166.272 provides that a person commits the crime of unlawful possession of a machine gun "if the person knowingly possesses any machine gun * * * not registered as required under federal law. " The phrase "not registered as required under federal law" immediately follows another element of the crime, that the person "knowingly possess[] any machine gun." The phrase continues to describe the offense of unlawful possession of a machine gun. 3 Significantly, it is not set apart from the rest of the definition of the offense by the use of commas and words of limitation, such as "except," "however," or "provided that." Indeed, "not registered as required under federal law" is an adjectival clause. The phrase does not create an exception. Instead, it functions as an adjective by modifying or further defining the noun, machine gun. In other words, the statutory phrase is a necessary ingredient of the definition of unlawful possession of a machine gun. Tamler & Polly,19 Or. at 531.
The state argues in its brief that to "focus on the exact wording of the statute" to determine whether it creates an element is incorrect. The state misapprehends this court's role in statutory interpretation. To interpret a statute properly, this court must focus on the exact wording of the statute. Indeed, it is the text -- or the "exact wording of the statute" -- that provides the best evidence of the legislature's intent. PGE, 317 Or. at 610.
Our construction of ORS 166.272 is supported not only by an analysis of the statute's text, but also by an examination of that text in the context of other related statutes. See PGE, 317 Or. at 611 (). The context of ORS 166.272 includes other criminal statutes. In many of those statutes, the legislature has set out clearly the defenses and affirmative defenses available to the criminal defendant. For instance, ORS 163.115 provides in part:
See also ORS 164.035 (); ORS 164.828 (); ORS 167.085 ().
When the statute does not expressly label a defense or affirmative defense, it often sets forth clearly the limits...
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