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State v. Torres6/10/2003
Is a defendant entitled to a mistake-of-fact jury instruction when charged with the unlawful carrying of a firearm into a licensed liquor establishment contrary to NMSA 1978, § 30-7-3 (1999)? We answer the question in the negative and affirm the conviction of Defendant Paul Torres in this case.
Background
Defendant began carrying a gun after he became a witness in a murder case. He understood that he could not carry the gun into a liquor establishment. Shortly thereafter, he went to dinner with friends at a local restaurant which had a liquor license. Both the owner and manager of the restaurant observed that Defendant appeared to be carrying a gun under his shirt and called the police. The responding officer found a .38 caliber semiautomatic handgun in Defendant's waistband and arrested Defendant.
Defendant was indicted by the grand jury on the single charge of unlawful carrying of a firearm into a licensed liquor establishment. He was not charged with unlawful carrying of a deadly weapon, under NMSA 1978, § 30-7-2 (2001), and that statute forms no part of our resolution of this case. Defendant's sole defense at trial was that he did not know that the restaurant was a liquor establishment. He testified that he had been to the restaurant numerous times, both as a customer and as a child each day after school to visit his grandmother when she worked at the restaurant. Defendant testified that at those times, the restaurant did not serve liquor and promoted itself as a family restaurant. Although the owner of the restaurant, the manager, and the arresting officers testified that the liquor license was posted by the front door and the sale of beer was advertised at the restaurant, Defendant testified that he did not see any sign indicating that the restaurant served liquor.
In support of his mistake-of-fact defense, Defendant tendered two jury instructions. The first, based on UJI 14-5120 NMRA 2003, placed the burden on the State to prove beyond a reasonable doubt that Defendant did not act under an honest and reasonable belief that the restaurant was not a licensed liquor establishment. The second, necessary under the use note to UJI 14-5120 if the first was given, required the jury to find that Defendant did not act under a mistake-of-fact in order to return a conviction. The district court refused Defendant's tendered instructions.
Propriety of Mistake of Fact Defense
Defendant's mistake-of-fact defense rests upon Defendant's alleged lack of knowledge that the restaurant had a liquor license. In refusing Defendant's instruction, the district court held that Defendant's lack of knowledge was not relevant to the jury's determination under Section 30-7-3. In so ruling, the district court, in effect, held that the crime of unlawful possession of a firearm in a licensed liquor establishment was a strict liability crime. We review de novo the district court's interpretation of Section 30-7-3. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (holding that appellate court's review of construction of a statute is de novo).
Section 30-7-3(B) prohibits, as a fourth degree felony, the unlawful carrying of a firearm in "an establishment licensed to dispense alcoholic beverages." Section 30-7-3(A) provides that the crime "consists of carrying a loaded or unloaded firearm on any premises licensed by the regulation and licensing department for the dispensing of alcoholic beverages." Section 30-7-3(A) also creates exceptions we do not discuss because they are not applicable in this case.
Generally, criminal intent is an element of every crime. State v. Lucero, 87 N.M. 242, 244, 531 P.2d
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