State v. Maskell , 336 Or. App. 21 ( 2024 )

No. 796 November 6, 2024 21
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
THOMAS SCOTT MASKELL,
Defendant-Appellant.
Lane County Circuit Court
21CR21166; A176445
Jay A. McAlpin, Judge.
Argued and submitted July 6, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, Office of Public Defense Services, argued the cause
and filed the reply brief for appellant. Also on the opening
brief was Anna Belais, Deputy Public Defender.
Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Lagesen, Chief Judge,
and Joyce, Judge.*
AOYAGI, P. J.
Affirmed.
______________
* Lagesen, C. J., vice Jacquot, J.
22 State v. Maskell
Cite as 336 Or App 21 (2024) 23
AOYAGI, P. J.
Defendant appeals a judgment of conviction for one
count of unlawful use of a weapon (UUW), ORS 166.220
(1)(a), and one count of menacing, ORS 163.190. He chal-
lenges only his UUW conviction. The jury found defendant
guilty of committing a single count of UUW by both means
described in ORS 166.220(1)(a)—that is, it found both that
he attempted to use a deadly weapon unlawfully against
another and that he carried or possessed a deadly weapon
with intent to use it unlawfully against another—result-
ing in a single conviction for violating ORS 166.220(1)(a).
On appeal, defendant argues that the trial court erred
by not giving either of his two alternative requested jury
instructions on UUW. Defendant first requested an instruc-
tion that, to find him guilty, the jury had to find that he
knew that his attempted or intended use of the weapon was
“unlawful.” Alternatively, if the court was unwilling to give
that instruction, defendant requested an instruction that, to
find him guilty, the jury had to find that he was criminally
negligent as to his attempted or intended use being “unlaw-
ful.” As explained below, we conclude that the trial court did
not err in rejecting the requested jury instructions, because
they are premised on a misunderstanding of the mental-
state requirement for UUW. Accordingly, we affirm.
Where a party challenges the “trial court’s refusal
to give a requested jury instruction, we view the facts in
the light most favorable to giving that instruction.” State
v. Wolf, 260 Or App 414, 416-17, 317 P3d 377 (2013). In this
case, a detailed account of the facts is not necessary to our
analysis. It is sufficient to say that, during an argument
over a parking space, defendant brandished a gun and indi-
cated that he would use it against the other party to the
argument if she approached him. At the time, defendant
subjectively believed that threatening her with a gun was
lawful self-defense.
Defendant was charged with UUW, under both the-
ories described in ORS 166.220(1)(a). See ORS 166.220(1)(a)
(“A person commits the crime of unlawful use of a weapon if
the person * * * [a]ttempts to use unlawfully against another,
or carries or possesses with intent to use unlawfully against
24 State v. Maskell
another, any dangerous or deadly weapon as defined in ORS
161.015.”). For present purposes, we focus our discussion on
the carry-or-possess theory of UUW, which required the
jury to decide whether defendant carried or possessed a dan-
gerous or deadly weapon “with intent to use [it] unlawfully
against another.” Id. As to that theory, defendant requested
an instruction that, to find him guilty, the jury had to find
not only that he carried or possessed a deadly weapon and
that he intended to use it unlawfully—which tracks the
statutory language—but also that defendant “was aware
that the intended use of the weapon was not lawful.”
In the alternative, if the trial court rejected that
instruction, defendant requested an instruction that would
have concluded with telling the jury that, to find him guilty,
the jury had to find that defendant was criminally negli-
gent as to the intended use being unlawful, i.e., that defen-
dant “failed to be aware of a substantial and unjustifiable
risk that the intended use of the weapon was unlawful and
the risk was of such nature and degree that the failure to
be aware of it constituted a gross deviation from the stan-
dard of care that a reasonable person would observe in the
situation.”
The trial court declined to give either instruction,
instead using the statutory language to instruct the jury.
Defendant contends that he was entitled to one or
the other of his requested instructions. He begins his argu-
ment by invoking two well-established legal principles: first,
that an element of an offense is “material” when it “define[s]
whether a defendant has committed an offense,” as opposed
to defining “when and where a crime [can] be prosecuted,”
State v. Owen, 369 Or 288, 316-17, 505 P3d 953 (2022), and,
second, that “every ‘material element’ of [an] offense ordi-
narily requires proof of a culpable mental state,” State v.
Simonov, 358 Or 531, 538, 368 P3d 11 (2016) (quoting ORS
161.095(2)). Defendant then reminds us that those princi-
ples apply equally to offenses outside the Oregon Criminal
Code, including UUW, absent a clear legislative intent to
dispense with a culpable mental state requirement. See id.at 537 n 2 (explaining that the foregoing propositions apply
to offenses outside the Oregon Criminal Code, unless the
Cite as 336 Or App 21 (2024) 25
statute defining the offense “ ‘clearly indicates a legislative
intent to dispense with any culpable mental state require-
ment for the offense or for any material element thereof’ ”
(quoting ORS 161.105(1)(b)); State v. Rainoldi, 351 Or 486,
491, 268 P3d 568 (2011) (describing application of ORS
161.105(1)(b)); see also, e.g., State v. Prophet, 318 Or App 330,
335 n 3, 507 P3d 735, rev den, 370 Or 472 (2022) (explaining
the legal framework).
With those principles in mind, defendant asserts
that “unlawfully” is a material element of UUW, because
it relates to whether a person has committed UUW, and
that, as a material element, “unlawfully” requires proof of
a culpable mental state, because there is no clear legisla-
tive intent to the contrary. Finally, defendant puts forward
an argument that knowledge is the requisite mental state
for the “unlawfully” element—with a backup argument for
criminal negligence as the requisite mental state.
In response, the state accepts defendant’s framing
of the issue, including implicitly accepting that “unlawfully”
is a material element of UUW, but argues that ORS 166.220
(1)(a) clearly indicates a legislative intent to dispense with
any culpable mental state for “unlawfully.” For that reason,
the state argues, we should not attach any mental state
requirement to “unlawfully” in ORS 166.220(1)(a).
The question presented is one of statutory construc-
tion, which is a question of law. State v. Gaines, 346 Or 160,
171-72, 206 P3d 1042 (2009). Seeking to discern the legis-
lative intent, we are to consider the disputed statutory text
in context, as well as any useful legislative history of which
we are aware. Id. Ultimately, we are “responsible for identi-
fying the correct interpretation, whether or not asserted by
the parties.” Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997).
Here, as we will explain, we disagree with both parties’ con-
struction of the statute.
“In Oregon, criminal liability generally requires an
act that is combined with a particular mental state. The
statute defining an offense determines its applicable mental
state (or mental states), as informed by the Oregon Criminal
Code general culpability provisions, ORS 161.085 to 161.115.”
26 State v. Maskell
Simonov, 358 Or at 537 (internal quotation marks, citation,
and footnote omitted). For offenses within the criminal code,
“[i]f * * * the statute does not prescribe a culpable mental
state for all or some of the material elements of the offense,
‘culpability is nonetheless required and is established only
if a person acts intentionally, knowingly, recklessly or with
criminal negligence.’ ” Id. (quoting ORS 161.115(2)). Absent
a clear legislative intent to dispense with a culpable men-
tal state, the same analysis applies to offenses outside the
criminal code, including UUW. ORS 161.115(2) (so provid-
ing); see, e.g., Rainoldi, 351 Or at 491.
Here, we conclude that the statutory text does pre-
scribe a culpable mental state—and that “unlawfully” is
part of that prescribed culpable mental state, rather than
a standalone element of the offense—which is dispositive of
the question before us.
A person commits UUW if the person “carries or
possesses with intent to use unlawfully against another,
any dangerous or deadly weapon as defined in ORS 161.015.”
ORS 160.220(1)(a). It may be debatable how exactly that lan-
guage should be divided into elements, but, at a minimum, a
person must engage in the conduct of carrying or possessing,
while having the “intent to use unlawfully against another.”1
The “intent to use unlawfully against another” is
itself the culpable mental state for the carry-or-possess the-
ory of UUW. We disagree that “unlawfully” can be sepa-
rated from the specified mental state and then evaluated
separately for application of its own mental state. To the
contrary, the word “unlawfully” appears in the middle of
the clause defining the prescribed mental state, modifying
the verb “to use,” which, in turn, describes what a person
must intend to do with the weapon—that is, what must be
in the person’s mind when they act. It is a critical part of the
specific intent requirement imposed by the legislature, not
a separate element of UUW subject to its own mental-state
analysis.
1
We express no opinion on whether the “dangerous or deadly weapon”
requirement is part of the conduct element or is a circumstance element. See
generally Owen, 369 Or at 302-05 (discussing various ways to divide offenses into
elements).
Cite as 336 Or App 21 (2024) 27
We took a similar approach to evaluating the req-
uisite culpable mental state for a different crime in State
v. West, 298 Or App 125, 445 P3d 1284, rev den, 365 Or
722 (2019). In that case, the defendant was charged with
second-degree disorderly conduct, which can be commit-
ted in a variety of ways. The defendant was charged with
committing it by, “ ‘with intent to cause public inconve-
nience, annoyance or alarm, or recklessly creating a risk
thereof, * * * [o]bstruct[ing] vehicular or pedestrian traf-
fic on a public way.’ ” Id. at 129 n 4 (quoting ORS 166.025
(1)(d)). The defendant argued—first in a demurrer and later
in requesting jury instructions—that the state was required
to prove that he intentionally obstructed traffic. Id. at 128-
29. Specifically, the defendant argued that the statutorily
prescribed mental state (which everyone agreed contained
two alternative mental states), i.e., “ ‘with intent to cause
public inconvenience, annoyance or alarm or recklessly cre-
ating a risk thereof,’ ” was “a stand-alone element” that was
separate from the relevant conduct element of obstructing
traffic. Id. at 129 (quoting ORS 166.025(1)(d) (emphases
added)). It followed, the defendant argued, that there was no
statutorily prescribed culpable mental state for the conduct
element of obstructing traffic and that the court needed to
decide whether intent, knowledge, recklessness, or criminal
negligence was the applicable culpable mental state for that
conduct element. Id. at 129-30.
We disagreed. We examined each of the stated
alternative culpable mental states to determine whether it
is a standalone element or, instead, attaches to the conduct
element. Id. at 131-33. Regarding “with intent to cause pub-
lic inconvenience, annoyance or alarm,” we concluded that
that mental state attaches to the conduct element. Id. at
132. It “specifies the mental state ‘with’ which a defendant
must obstruct traffic to commit the crime of second-degree
disorderly conduct.” Id. at 132. The specifically defined men-
tal state thus limited the scope of the crime: “[ORS 166.025
(1)(d)] does not make every intentional obstruction of traffic
a crime. Rather, it makes the act a crime only if a defendant
obstructs traffic” with the specified intent. Id.; see also id. at
132 n 5 (noting that the legislature “could have prescribed
a general mental state, such as intentionally obstructing
28 State v. Maskell
traffic[,]” but chose to prescribe a specific mental state—
“the intent to create public inconvenience, annoyance, or
alarm”—to avoid the statute “sweeping too broadly”). “By
stating that a person will commit the crime of second-degree
disorderly conduct if he or she obstructs traffic ‘with’ a spe-
cific intent, the legislature identified the mental state with
which a person must act.” Id. at 132.
Despite slightly different phrasing, we concluded
that the alternative mental state—“recklessly creating
a risk” of public inconvenience, annoyance, or alarm—
operates in the same way. Id. at 133. As to both alterna-
tives, “the legislature described the mental state with which
the person must act to commit the crime. And, in both
instances, the legislature required proof of a specific mental
state rather than a general one.” Id. “As we read the text of
ORS 166.025, proof of either mental state specified in ORS
166.025(1) coupled with proof of one of the acts specified in
ORS 166.025(1)(a) to (f) is sufficient, without more, to estab-
lish the crime of second-degree disorderly conduct.” Because
the legislature prescribed a specific culpable mental state
with which a person must engage in the conduct to commit
the offense, “[n]o more is required.” Id. at 132.
Similarly, here, the legislature has identified a spe-
cific mental state—“with intent to use unlawfully against
another”—that attaches to the conduct element—carrying
or possessing. ORS 161.220(1)(a). The word “unlawfully,”
placed in the midst of the specified culpable mental state, is
not subject to its own culpable mental state analysis.
We therefore conclude that the trial court did not
err in refusing to give defendant’s requested instructions on
the carry-or-possess theory of UUW, because “unlawfully” is
not itself an element to which a mental state might attach.
Given that defendant’s arguments pertain only to whether
“unlawfully” is a standalone element to which a culpable
mental state attaches—which we have concluded it is not—
we stop there and leave for another day any possible dispute
as to the correct construction of “unlawfully” as part of the
specific-intent element for the possess-or-carry theory.
Cite as 336 Or App 21 (2024) 29
Because defendant was charged with a single count
of UUW (Count 1), the jury found defendant guilty on both
theories of UUW charged in that count, and either theory
supports the conviction on that count, we need not address
defendant’s arguments regarding his requested jury instruc-
tions on the alternative “attempt” theory of UUW.
Affirmed.