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State v. Powell2/15/1993
The elements instruction requires the jury to find: (1) that the establishment was licensed to dispense alcoholic beverages; (2) that while in the establishment, the defendant was carrying a firearm; and (3) if applicable, that the defendant did not have legal authority to have the firearm in his possession in the establishment. SCRA 1986, 14-702. The general-criminal-intent instruction then requires the jury to find that the defendant acted intentionally in that he or she purposely did an act which the law declares to be a crime, whether or not the defendant knew the act to be unlawful. SCRA 1986, 14-141. Nothing in the uniform jury instructions suggests that an evil intent is necessary for a violation of Section 30-7-3(A).
Finally, we disagree with Defendant's contention that , supports his position. Osborne held that unlawfulness is an element of the offense of criminal sexual contact of a minor and the jury must be instructed accordingly. That element, however, appears expressly in the statutory definition of the offense. NMSA 1978, Section 30-9-13 states, "Criminal sexual contact
of a minor is unlawfully and intentionally touching or applying force to the intimate parts of a minor * * *." Osborne was not a case in which a court implied an element of the offense that was not stated in the statutory definition. The statute at issue here, Section 30-7-3, in contrast to Section 30-9-13, does not include the words "unlawful" or "unlawfully" as part of the definition of the offense. The word "unlawful" appears in Section 30-7-3 only as part of the name of the offense and refers to the provision in the statute exempting four types of lawful carrying of firearms. No evidence at Defendant's trial supported any of the exemptions, and the trial court expressly so found. The district court here did not ignore an explicitly defined element of the offense of unlawful carrying of a firearm. Osborne does not help Defendant.
Thus, we conclude that Defendant's conviction did not require proof of an evil purpose. Defendant's conviction is affirmed.
IT IS SO ORDERED.
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