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State v. Powell2/15/1993
Defendant was convicted at a non-jury trial of a violation of NMSA 1978, Section 30-7-3(A) (Repl.Pamp.1984), which prohibits the " nlawful carrying of a firearm in
an establishment licensed to dispense alcoholic beverages." On appeal he contends that the State was required to prove his conscious wrongdoing and that there was insufficient evidence of that element of the offense. He does not dispute that the trial Judge properly found that he intentionally carried a firearm in a bar licensed to dispense alcoholic beverages. We affirm.
On February 5, 1991, Defendant was released from jail on charges arising from a stabbing at the Greystoke Lounge three days earlier. He and a friend then went to the home of the Greystoke bartender, Karla Coffer, and told her they planned to go to the bar that night. She warned them not to bring any weapons. When Defendant arrived at the Greystoke, he laid a knife on the bar and told Ms. Coffer that he was checking his weapon so that there would not be any problems. A couple of hours later he handed her a loaded pistol, again saying that he wanted to avoid problems. At trial Defendant testified that the pistol originally had been in his car outside the bar, but when he went to his car for cigarettes, he found that the window had been forced open, so he brought the pistol to the bartender to prevent it from being stolen. The arresting officer, however, testified that the car windows appeared to be intact at the time of the arrest. The State contended that Defendant brought the weapon into the bar to show the other patrons that he was armed.
Section 30-7-3(A) states:
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 except:
(1) by a law enforcement officer in the lawful discharge of his duties;
(2) by the owner, lessee, tenant or operator of the licensed premises or their agents, including privately employed security personnel during the performance of their duties;
(3) by a person in that area of the licensed premises usually and primarily rented on a daily or short-term basis for sleeping or residential occupancy, including hotel or motel rooms; or
(4) by a person on that area of a licensed premises primarily utilized for vehicular traffic or parking.
The statute does not define the state of mind necessary for commission of the crime.
To support his contention regarding the scienter element of the crime, Defendant relies on . Rejecting an argument that the statute defining the crime of unlawful taking of a vehicle was unconstitutionally vague and uncertain, Austin held that criminal intent was an element of the crime, even though it was not expressly included in the statutory definition. Defendant does not rely so much on the holding of Austin as on certain language in the opinion. Austin quoted the following proposition, which originally appeared in :
Generally speaking, when an act is prohibited and made punishable by statute only, the statute is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, although the terms of the statute do not require it. But the legislature may forbid the doing of an act and make its commission criminal, without regard to the intent with which such act is done; but in such case it must clearly appear from the Act (from its language or clear in
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