State v. Winders

366 N.W.2d 193, 1985 Iowa App. LEXIS 1438
CourtCourt of Appeals of Iowa
DecidedJanuary 29, 1985
Docket83-1529
StatusPublished
Cited by17 cases

This text of 366 N.W.2d 193 (State v. Winders) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Winders, 366 N.W.2d 193, 1985 Iowa App. LEXIS 1438 (iowactapp 1985).

Opinions

DONIELSON, Judge.

Defendant appeals from her convictions of third-degree theft in violation of Iowa Code sections 714.1(4) and 714.2(3), and possession of an offensive weapon in violation of Iowa Code sections 724.1 and 724.3. She asserts that evidence was insufficient to prove that defendant knowingly possessed an offensive weapon or exercised control over stolen property. We affirm.

On November 1, 1982, law enforcement officers executed a search warrant at the home of Virginia Lee Winders. An individual named Lonnie Willard was living with Winders and her children at the Cedar Rapids acreage. The officers found, inter alia, a sawed-off shotgun in the defendant’s home and a stolen horse sleigh and buggy in a nearby garage.

In December 1982, defendant and her live-in companion, Lonnie Willard, were jointly charged with two counts of second-degree theft by exercising control over stolen property, one count of possession of an offensive weapon, and one count of unlawful possession of automobile titles. The jury subsequently found defendant guilty of one count of a lesser-included offense of third-degree theft and possession of an offensive weapon. She was sentenced to an indeterminate two-year term of imprisonment on the theft conviction and an indeterminate five-year term of imprisonment on [195]*195the weapons conviction, with the sentences to run concurrently. Defendant has appealed from the convictions on grounds of insufficient evidence.

I.

Winder’s first assignment of error is that the evidence was insufficient to prove that she knowingly possessed an offensive weapon. At trial, defendant testified that the shotgun in question was left in pieces in her yard by a third party and that she put the unassembled weapon in a closet to keep it away from her children. She acknowledged that she knew it was illegal to possess a sawed-off shotgun, but claimed she did not know the barrel on this particular gun was shorter than the legal limit. Defendant asserts that since she did not know the barrel length, she could not have knowingly possessed an offensive weapon.

Iowa Code section 724.3 provides:

Unauthorized possession of offensive weapons. Any person, other than a person authorized herein, who knowingly possesses an offensive weapon commits a class “D” felony, (emphasis added)

The central issue before this court is whether knowledge of the offensive nature of a weapon is an element of the offense defined in this section.

The Iowa Supreme Court has not had the opportunity to address this issue. We believe that the use of the term “knowingly” reflects the intent of the legislature that mere possession, per se, is not a crime under the statute. However, exactly what must be known is subject to dispute. One commentator has indicated that the offender must have knowledge both of his possession of the weapon and of the offensive quality, and that “proof that one knowingly possesses one of these permits an inference that he knows that it is an offensive weapon.” J. Yeager & R. Carlson, Iowa Criminal Law and Procedure § 515 at 129-30 (1979). In contrast, the Uniform Jury Instructions require three elements: (1) the accused must have possession of a weapon; (2) the accused must know that he has possession of the weapon; and (3) the weapon must be an offensive weapon as a matter of law. Iowa State Bar Association, II Iowa Uniform Jury Instructions Annotated (Criminal) at No. 2402 (1982).

In considering which of these alternative views is appropriate for analyzing this issue, we recognize that in criminal law the term “knowingly” has no fixed or precise meaning. It depends on the character of the offense involved. See 22 C.J.S. Criminal Law § 31(3) at 111 (1961).

When used in a prohibitory statute “knowingly” imports something more than carelessness or lack of inquiry. In such statutes, it has been held to mean merely a knowledge of the existence of the facts constituting the crime, or a knowledge of the essential facts and not to require the knowledge of the unlawfulness of the act or omission.

Id. (emphasis added). Thus, the question becomes whether knowledge of the barrel length of the sawed-off shotgun is an essential fact constituting the crime.

A review of case law from other jurisdictions reveals that few courts have addressed this particular question. However, federal decisions interpreting 26 U.S.C. § 5861 (1982) are instructive on this point. Section 5861 enumerates several prohibited acts involving firearms including possession of an unregistered firearm. While the statute does not specifically require that possession of the firearm be knowing, this requirement has been judicially imposed. United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 1117, 28 L.Ed.2d 356, 361 (1971). The prevailing rule is that the government need not prove the defendant had. knowledge that the physical characteristics of the weapon rendered it subject to registration. United States v. Vasquez, 476 F.2d 730, 732 (5th Cir.1973); United States v. Gardner, 448 F.2d 617, 619 (7th Cir.1971); Sipes v. United States, 321 F.2d 174, 179 (8th Cir.1963). In Vasquez, the Fifth Circuit specifically recognized that “[sjcienter is established if the defendant be proved to have had knowing possession of an item which he knew to be a firearm, [196]*196within the general meaning of that term." 476 F.2d at 732 (emphasis added).

In Commonwealth v. Sampson, 383 Mass. 750, 762, 422 N.E.2d 450, 456-57 (1981), the Supreme Judicial Court of Massachusetts elaborated on the knowledge requirement within the context of Mass.Gen. Laws Ann. ch. 269 § 10(a) (West 1980) (carrying a firearm without a license). In order “to avoid possible constitutional doubts,” the court had previously interpreted the provision to require “proof that the accused knew he was carrying, a firearm.” Commonwealth v. Jackson, 369 Mass. 904, 906, 344 N.E.2d 166, 174 (1976). In Sampson, the court explained this judicially-imposed requirement at length:

Even though the government need not prove that a defendant knows he is carrying a firearm whose physical characteristics, such as barrel length, render it subject to regulation, we think it should be required to prove that he knows the instrument is a firearm within the generally accepted meaning of that term.

383 Mass. at 762, 422 N.E.2d at 456-57.

Certainly the federal statute and Massachusetts statute discussed above can be distinguished from section 724.3 of the Iowa Code. Unlike the Iowa provision, they have no language requiring knowledge. However, it cannot be ignored that this requirement has been consistently judicially imposed.

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State v. Winders
366 N.W.2d 193 (Court of Appeals of Iowa, 1985)

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Bluebook (online)
366 N.W.2d 193, 1985 Iowa App. LEXIS 1438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-winders-iowactapp-1985.