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Filed: December 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v.

NICHOLAS RYAN RAINOLDI, Respondent on Review. (CC 061255770; CA A136377; SC S058846) En Banc On review from the Court of Appeals.* Argued and submitted May 3, 2011. Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Ernest G. Lannet, Chief Deputy Defender, Salem, argued the cause and filed the brief for respondent on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. LANDAU, J. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

*Appeal from Multnomah County Circuit Court, Frank L. Bearden, Judge. 236 Or App 129, 235 P3d 710 (2010).

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LANDAU, J. ORS 166.270(1) provides that any person "who has been convicted of a felony" who owns or possesses a firearm commits the crime of felon in possession of a firearm. The issue in this case is whether the statute requires proof that the defendant knew that he had been convicted of a felony before he possessed, or attempted to possess, a firearm. The Court of Appeals held that ORS 166.270(1) requires proof of such knowledge and that the trial court erred in failing to deliver a jury instruction to that effect. We reverse the decision of the Court of Appeals and affirm the judgment of the circuit court. I. BACKGROUND

The relevant facts are few and undisputed. In 2004, defendant was convicted of two offenses: forgery in the first degree, ORS 165.013, and identity theft, ORS 165.800. Both are Class C felonies. ORS 165.013(3); ORS 165.800(2). The trial court sentenced him to 24 months' probation. On the judgment, the trial judge wrote "misd. treat. on completion of probation." Defendant completed probation in May 2006. Several months later, defendant attended a gun show and attempted to purchase a shotgun from Keith's Sporting Goods. As part of that transaction, defendant filled out a background check form. On the form, he indicated that he had never been convicted of a felony. Using the information that defendant provided, an employee of Keith's Sporting Goods called the State Police Firearms Unit to run a background check on defendant for approval of the shotgun sale. Based on the background check, defendant's application to purchase the shotgun was denied. 2

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Two police officers, Jacquot and Kulp, were also at the gun show. Dispatch notified them that defendant, a convicted felon, was attempting to purchase a firearm from Keith's Sporting Goods. The officers went to the Keith's Sporting Goods booth, spoke with the owner, and reviewed defendant's background check form. During their conversation, the owner was able to identify defendant for the officers. The officers then contacted defendant, and the three went outside to discuss the situation. Once outside, defendant verified his identity and told the officers that he had been convicted of forgery a few years ago but that he understood the trial judge to have told him that, on completion of probation, his convictions would be reduced to misdemeanors. He explained that, because he had completed probation several months earlier, his crimes were only misdemeanors. Officer Kulp went to his patrol vehicle and ran another background check on defendant in an attempt to confirm his story. Because defendant's felony convictions still appeared on his record, the officers cited him for attempted unlawful purchase of a firearm, ORS 166.425, and attempted felon in possession of a firearm, ORS 166.270. The state then charged defendant by information with those offenses, alleging that defendant "knowingly" attempted to purchase and "intentionally" attempted to own a firearm. Before trial, defendant requested that the trial court instruct the jury that, to find him guilty of attempted felon in possession of a firearm, the jury had to conclude that defendant knew that he was a felon at the time he attempted to purchase the shotgun. The trial court denied the request. At trial, defendant admitted that he had attempted to purchase the firearm. 3

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He further stipulated that, by virtue of his 2004 convictions, he had been convicted of a felony. He asserted that, nevertheless, he was not prohibited from purchasing or possessing a firearm because, at the time he attempted to do so, he believed that his felony convictions had been reduced to misdemeanors. In support of that assertion, he testified that the sentencing judge explained that if he completed his two-year probation period, his two felony convictions would be treated as misdemeanors. Although defendant admitted that he had no documentation that his felonies actually had been reduced to misdemeanors, he testified that he believed, at the time of the attempted purchase, that his convictions were only misdemeanors. The jury was instructed that, among other things, to convict defendant for attempted possession of a firearm by a felon, it was required to find that defendant "knowingly attempted to possess any firearm." The jury found defendant guilty of attempted felon in possession of a firearm, but acquitted him of the remaining charge. Defendant appealed, arguing that the trial court erred in failing to instruct the jury that it had to find that defendant knew he was a felon in order to find him guilty. The Court of Appeals agreed and reversed the judgment of conviction, holding that a person's status as a felon requires proof of a culpable mental state. State v. Rainoldi, 236 Or App 129, 149, 235 P3d 710 (2010). The court noted that, under ORS 161.105(1), a statute defining an offense that is outside of the Oregon Criminal Code does not require proof of a culpable mental state if that statute "clearly indicates" an intention to dispense with the requirement. The court observed that the text of ORS 166.270(1)(b) "provides no indication, much less a clear indication" of an intention to dispense with proof of a 4

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culpable mental state as to the element of defendant's prior felony conviction. Id. at 135. Likewise, the court stated, the legislative history of the statute is silent on the point. Id. at 136. Particularly in light of the "emphatic legislative and judicial hostility toward strict liability crimes," the court concluded, that silence is dispositive. Id. at 140. We accepted review of this case to determine whether that conclusion is correct. II. A. Applicable law The extent to which criminal liability requires proof of a particular mental state is prescribed by statute. ORS 161.095(2) provides: "Except as provided in ORS 161.105, a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state." By its terms, that somewhat circular requirement that there be proof of a culpable mental state for "each material element of the offense that necessarily requires a culpable mental state" applies "[e]xcept as provided in ORS 161.105." The exception to which ORS 161.095 refers provides, in part: "Notwithstanding ORS 161.095, a culpable mental state is not required if: "* * * * * "(b) An offense defined by a statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof." ORS 161.105(1)(b). The statutes thus impose different requirements, depending on whether the offense at issue is defined by a statute within the Oregon Criminal Code. 5 ANALYSIS

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In this case, the offense at issue -- felon in possession of a firearm -- is defined by ORS 166.270. That statute is not within the Oregon Criminal Code. ORS 161.005 spells out precisely which provisions of the Oregon Revised Statutes may be cited as the "Oregon Criminal Code of 1971," commonly referred to as the "Oregon Criminal Code" without the date. See, e.g., ORS 161.535; ORS 161.555; ORS 161.665 (all referring to "the Oregon Criminal Code"). ORS 166.270 is not listed as one of the statutes that may be cited as the Oregon Criminal Code. In State v. Rutley, 343 Or 368, 375, 171 P3d 361 (2007), this court addressed the proper method of analysis of the extent to which an offense not within the Oregon Criminal Code requires proof of a culpable mental state as to a particular element. The court held that the analysis proceeds in the following sequence. First, it must be determined whether, under ORS 161.105(1)(b), the offense at issue "clearly indicates a legislative intent to dispense" with the mental state requirement as to the element. If the answer is yes, then the analysis is at an end. If, however, it cannot be said that the relevant statute "clearly indicates" such an intent, then the offense is treated as if it were part of the Oregon Criminal Code, subject to the requirement of ORS 161.095(2). That triggers a second determination, viz., whether the particular element is a "material element of the offense that necessarily requires a culpable mental state." Id. at 373-75. Under Rutley, then, our initial task is to determine whether the offense of felon in possession of a firearm "clearly indicates a legislative intent to dispense with any culpable mental state" for the element that the defendant "has been convicted of a felony" within the meaning of ORS 161.105(1)(b). Unfortunately, as has been noted in earlier 6

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cases, the legislature has provided no guidance about how we should determine whether an offense "clearly indicates" such legislative intent. See State v. Miller, 309 Or 362, 366, 788 P2d 974 (1990) (so noting). In the process of applying the standard in a number of specific cases, however, this court has identified four factors that it takes into account in applying ORS 161.105(1)(b). The court has not catalogued those factors in any single decision, so we take the opportunity to do so in this case. But the list is not exhaustive; other factors may be relevant, depending on the circumstances. The first is the text of the statute defining the offense itself. ORS 166.425(1) -- to take an example from a statute pertaining to firearms offenses -- provides that a person commits the crime of unlawfully purchasing a firearm if the person, "knowing that the person is prohibited by state or federal law from owning or possessing the firearm," attempts to purchase the firearm. Obviously, the legislature knows how to craft legislation requiring proof of a culpable mental state, and such unambiguous statements of legislative intent as that in ORS 166.425(1) ordinarily will be dispositive of the inquiry required under ORS 161.105(1)(b). The fact that a statute does not include such an unambiguous statement of legislative intent is more problematic. On the one hand, it can be argued that legislative silence does not "clearly indicate" anything. On the other hand, such silence may give rise to an inference that, given that the legislature knows how to include a culpable mental state requirement, the omission of such a requirement was purposeful and indicates an intention to dispense with it. Because of the possibility of those competing inferences, this court has concluded that "statutory silence alone is not a sufficiently clear 7

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indication of legislative intent to dispense with a culpable mental state." Rutley, 343 Or at 375; see also State v. Cho, 297 Or 195, 201, 681 P2d 1152 (1984) ("The mere enactment of a crime without an expressly required culpable mental state is insufficient to establish such a clear indication."). On occasion, however, the court has gone further, holding that the silence of the text as to a culpable mental state, although not dispositive, is at least significant evidence of an intention to dispense with a culpable mental state. In Miller, for example, the issue was whether the statute that defines the offense of driving under the influence of intoxicants (DUII) requires proof that the defendant knew that he was intoxicated while driving. 309 Or at 364. That statute, ORS 813.010, which is not part of the Oregon Criminal Code, says nothing about a culpable mental state. The court found that significant. "The offense of DUII," the court observed, "does not nor has it ever required proof of a culpable mental state. The statute * * * has been amended several times. Never in the 70-year history of this state's legislation has one word been written in any DUII statute to require such proof." Id. at 368. The fact that the statute itself was silent on the matter, coupled with a complete absence of any discussion of it in the legislative history, held the court, "indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any of its material elements." Id. Included in the examination of a statute's text is the overall structure of the law of which it is a part, which the court has held to be an important consideration under ORS 161.105(1)(b). In State v. Buttrey, 293 Or 575, 651 P2d 1075 (1982), for example, this court addressed whether the statute defining the offense of driving while suspended, 8

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former ORS 487.560 (1981), repealed by Or Laws 1983, ch 338,

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