ERICKSON, Justice.

Defendant David Cowden (Cowden or defendant) was charged and convicted of six counts of felony theft. See § 18-4-401(1), (2)(c), 8 C.R.S. (1978).1 Defendant contends on appeal that: (1) section 18-4-401(1) denies him equal protection of the law, and (2) plain error occurred when the trial court failed to instruct the jury that the value of the alleged stolen articles was an element of the crime of theft. We reject the constitutional attack on the statute, reverse the conviction on the second count, and affirm the convictions on the remaining counts.2

I.

Cowden owned and operated the Old Warehouse Antique Mart in Colorado Springs, Colorado from December 1979 to January 15, 1982. He leased a building and sublet stalls within the building to vari*201ous antique vendors. The sublessees paid the defendant a percentage of the sales price of any item sold. Cowden also accepted items on consignment, which he undertook to sell for the owner in exchange for a percentage of the sales price.

The evidence shows that the Antique Mart lost money in the Fall of 1981, and the building lease was terminated on January 15,1982. Defendant vacated the premises and removed all of the consigned property. Six of defendant’s consignors filed complaints with the Consumer Affairs Division of the El Paso County District Attorney’s Office, and alleged that defendant had neither returned their consigned property nor paid them a percentage of the sales price. Efforts to recover the property were fruitless and an information was filed charging the defendant with one count of felony theft as to each victim.

In its instruction, the trial court failed to state that the jury was required to find that the value of the stolen property was between $200 and $10,000 to convict the defendant of violating section 18-4-401(2)(c), 8 C.R.S. (1978). The defendant did not object to the instruction as given. Defense counsel argued that the theft statute denied the defendant equal protection' of law because a conviction could be obtained by proving that the defendant acted either intentionally or knowingly. The defendant was convicted and was sentenced on each count to concurrent three year terms in the Department of Corrections.

II.

Cowden argues that section 18-4-401(l)(a) and (b), 8 C.R.S. (1978), denies him equal protection of the law because the statute, by specifying alternative culpable mental states of “knowingly” and “intentionally," authorizes the same penalty for two distinct criminal acts. In our view, the felony theft statute is not unconstitutional and does not deny an accused equal protection of the law.

Section 18-4-401, 8 C.R.S. (1978), states in pertinent part:

(1) A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and:

(a) Intends to deprive the other person permanently of the use or benefit of the thing of value; or

(b) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit.

(Emphasis added.) The trial court’s instruction to the jury complied with the statutory language.3

The guaranty of equal protection is violated if different statutes impose different penalties for the same criminal conduct. See, e.g., People v. Weller, 679 P.2d 1077 (Colo.1984); People v. Aragon, 653 P.2d 715 (Colo.1982); People v. Marcy, 628 P.2d 69 (Colo.1981); People v. Scott, 200 Colo. 402, 615 P.2d 680 (1980). Equal protection is not violated where the General Assembly prescribes the same punishment for different types of criminal conduct. Aragon, 653 P.2d at 719. Under the theft statute, the gradation of the criminal offense is determined by the value of the thing taken, not by the defendant’s mens rea. § 18-4-401(2), 8 C.R.S. (1978). The use of alternative mental states in the definition reflects the General Assembly’s de*202termination that, whether committed intentionally or knowingly, the crime of theft “is equally heinous in the eyes of the law and deserving of similar punishment.” People v. Quick, 713 P.2d 1282, 1286 (Colo.1986). No legitimate equal protection issue is raised by defendant’s argument. Id.

III.

At the time of the alleged crimes, theft was a “class 4 felony if the value of the thing involved is two hundred dollars or more but less than ten thousand dollars.” § 18-4-401(2)(c), 8 C.R.S. (1978).4 The prosecution concedes that the theft instruction erroneously omitted the element of the value of the stolen property.

It is the duty of the trial court to instruct the jury properly on all matters of law and instructions that fail to define all the elements of an offense are deficient. Ramirez v. People, 682 P.2d 1181, 1184 (Colo.1984); People v. Mattas, 645 P.2d 254, 257 (Colo.1982). The defendant did not object to the instruction as given, however, and our review is limited to whether the erroneous instruction constituted plain error. Espinoza v. People, 712 P.2d 476, 478 (Colo.1985); Ramirez, 682 P.2d at 1183; People v. Weller, 679 P.2d 1077, 1081 (Colo.1984); Matias, 645 P.2d at 257. Plain error affects substantial rights of the accused, Crim.P. 52(b), and the record must demonstrate a “reasonable possibility that the alleged erroneous instruction contributed to the defendant’s conviction,” Weller, 679 P.2d at 1081. See also People v. Rubanowitz, 688 P.2d 231, 239 (Colo.1984). Failure to instruct properly on an element of a crime does not constitute plain error where that element is not contested at trial, or where evidence of the defendant’s guilt is overwhelming. Espinoza, 712 P.2d at 478; Rubanowitz, 688 P.2d at 239-40.

The erroneous instruction which omitted the element of value contributed to the defendant’s conviction on the second count of theft. The victim testified that she had consigned a lamp to the defendant and that the lamp’s value was $195. Neither the prosecution nor the defendant introduced other evidence of the lamp’s value. Had the jury been properly instructed, it is reasonably possible that the defendant would have been acquitted of the second count of theft of $200 or more. We reverse the conviction and sentence on count two, and remand to the trial court for re-sentencing on the lesser included offense of misdemeanor theft, § 18-4-401(2)(b), 8 C.R.S. (1978) (theft of over $50 but under $200).

The defendant’s convictions are affirmed on the other five counts of felony theft. Each of the remaining victims testified that the antiques that they consigned to the defendant were worth at least $200.5 Cowden did not contest the value of the items consigned to him. Cowden’s position was that he did not intend to commit theft, that his business failed, and that the loss should be redressed in a civil action.6 In cross-examining the victims, counsel made only cursory references to the claimed value of the missing items. The record demonstrates that the value of the property *203alleged to be stolen in the first and third through sixth counts was not a controverted element of the offenses. The trial court’s failure to instruct the jury as to the value was not plain error, and the defendant’s conviction of the five remaining counts will not be disturbed. See Espinoza v. People, 712 P.2d at 478 (defective instruction concerning mental state of “knowingly” was not plain error where defendant’s theory of defense was mistaken identity and evidence of guilt was overwhelming); People v. Weller, 679 P.2d at 1081-82 (failure of court to define phrase “attempt to cause bodily injury” in second-degree assault statute was not plain error where element of attempt was never contested at trial and the uncontroverted evidence established attempt to cause bodily injury.)

The defendant’s convictions on all but count two are affirmed and the case is remanded to the trial court for resentenc-ing on count two according to the directions contained in this opinion.

Greaney, J.

In this case, we consider challenges to the validity of G. L. c. 94C, § 32J, as inserted by St. 1989, c. 227, § 2, set forth below.1 This statute, commonly known as the “school zone” statute, establishes a mandatory minimum *226term of imprisonment of not less than two years for any person who violates G. L. c. 94C, §§ 32-32F, or § 321, while within 1,000 feet of a public or private elementary, vocational or secondary school. The statute also provides that lack of knowledge of school boundaries is not a defense in such a case and that the two-year mandatory minimum sentence be served from and after any sentence imposed for the violation of G. L. c. 94C, §§ 32-32F, or § 321.

At trial, the jury could have found the following facts. Police officers from the city of New Bedford, believing that cocaine was being distributed from a first floor apartment at 305 South Second Street, obtained a warrant to search the apartment. The officers executed the warrant (which did not require them to knock and announce themselves prior to entry) on the evening of August 24, 1989. At approximately 8:30 that evening, an undercover officer approached the rear door of the apartment. He observed a man at the doorway, who knocked on the door and asked for “a half.” The man slid money under the door, received a small bag containing a white substance, then departed. The undercover officer knocked on the door, and a person inside asked him what he wanted. He also requested “a half,” which he testified was a quantity of cocaine with a street value of approximately $40. He slid $40 under the door and shortly afterward received a small bag of cocaine later determined to weigh .73 gram. He left the building and informed his colleagues that he had made the purchase. Shortly afterward, teams of officers broke down the front and the rear doors of the apartment with battering rams. The doors had been barricaded with two-by-four pieces - of wood supported by metal brackets attached to the door frame. As the officers entered the rear door of the apartment, they saw four men running into a bedroom and followed them. Three of the men, including the *227defendant, resisted the police officers in the bedroom doorway, while the fourth man went into a bathroom that was located inside the bedroom. He was carrying a plastic sandwich bag which held several smaller bags containing white powder. Before the officers could reach him, he flushed the sandwich bag down the toilet. The police searched the apartment and seized .55 gram of cocaine, drug paraphernalia and a small amount of cash, including the $40 that had been used for the purchase by the undercover officer. The defendant, along with four other men inside the apartment, was arrested.

The Commonwealth alleged that the apartment was set up for selling cocaine and that the defendant was involved in the business. The defendant was charged with the possession of cocaine with intent to distribute in violation of G. L. c. 94C, § 32A, and with violation of G. L. c. 94C, § 32J, the school zone statute. The parties stipulated that the apartment where the drugs were seized is within 1,000 feet of a public school. A judge of the Superior Court denied the defendant’s pretrial motion to dismiss the § 32J charge. That motion was presented on the ground that the “lack of knowledge of school boundaries” provision in § 32J deprived the defendant of his Federal and State constitutional rights of due process by removing guilty knowledge as an element of the offense. A jury found the defendant guilty on both charges. The defendant then moved to dismiss his conviction under § 32A for possession of cocaine with intent to distribute on the ground that crime constituted a lesser included offense of the § 32J charge. That motion was denied, and the defendant was sentenced to a term of ninety days in a house of correction on the § 32A conviction, and a two-year consecutive term on the § 32J conviction. The defendant appealed, and we allowed the defendant’s application for direct appellate review. We affirm the convictions.2

*228On appeal, the defendant argues that G. L. c. 94C, § 32J, violates State constitutional due process provisions,3 and that the imposition of a mandatory minimum sentence thereunder violates common law prohibitions against double jeopardy and his State constitutional right to be protected against cruel or unusual punishment. He also claims error in the instruction given by the trial judge, on consciousness of guilt.

1. We reject the defendant’s argument that § 32J violates his due process rights as protected by articles 1, 10, and 12 of the Declaration of Rights because it removes guilty knowledge as to one element of the offense, namely the school boundaries element.4 The defendant is not helped by his reference to decisions where this court, or the Appeals Court, has imposed a mens rea requirement for criminal statutes imposing serious penalties for the defendant’s commission of an unlawful act alone. See, e.g., Commonwealth v. Crosscup, 369 Mass. 228, 234-235 & n.5 (1975); Commonwealth v. Jackson, 369 Mass. 904, 916 (1976); Commonwealth v. Buckley, 354 Mass. 508, 511-512 (1968); Commonwealth v. Dellamano, 17 Mass. App. Ct. 156, 157 (1983), S.C., 393 *229Mass. 132 (1984); Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 363-364 (1982). In these cases, the criminal statutes at issue were silent as to whether mens rea was required for a conviction, and the appellate courts construed the statutes to require mens rea in order to avoid possible due process doubts. In so doing, however, the courts acknowledged that clear legislative language indicating that mens rea was not required for conviction could produce a different result. See Commonwealth v. Buckley, supra at 511-512.

The Legislature has provided such clear direction in § 32J by specifically stating that lack of knowledge of school boundaries is not to be considered an issue in any prosecution under the statute. The Legislature may permissibly do this. That body has “broad power to define and limit the mens rea element of criminal offenses,” Commonwealth v. Tart, 408 Mass. 249, 264 (1990), quoting Simon v. Solomon, 385 Mass. 91, 103 (1982), and, consistent with that authority, may “create strict criminal liabilities by defining criminal offenses without any element of scienter.” Commonwealth v. Miller, 385 Mass. 521, 524 (1982), quoting Smith v. California, 361 U.S. 147, 150 (1959). Even in the absence of specific language such as the language that appears in § 32J, we have construed criminal statutes which authorize the imposition of serious sentences to permit conviction without proof of mens rea, acknowledging that “[s]trict criminal liability is not necessarily a denial of due process of law.” Commonwealth v. Miller, supra (statutory rape does not admit of a mistake of fact defense). See also Commonwealth v. Knap, 412 Mass. 712, 715 (1992); Commonwealth v. Dunne, 394 Mass. 10, 18-19 (1985); Commonwealth v. Baker, 17 Mass. App. Ct. 40, 42 (1983); Nelson v. Moriarty, 484 F.2d 1034 (1st Cir. 1973).

It is also of significance that § 32J is not totally void of any mens rea requirement. Before a conviction can be obtained thereunder the Commonwealth must prove the defendant guilty of a predicate drug-dealing offense requiring mens rea — in this case the possession of cocaine with intent to distribute. Section § 32J thus imposes liability only on *230someone who knows he is dealing in drugs and requires the dealer to proceed at his peril with respect to the proximity of a school. In this last feature § 32J resembles other criminal statutes which punish an underlying violation committed with mens rea and consider the offense aggravated by a fact of which the defendant may not have express knowledge. See G. L. c. 269, § 12E (1990 ed.) (discharge of a firearm within 500 feet of a dwelling; no requirement of knowledge of the distance); G. L. c. 94C, § 32E (1990 ed.) (increasing mandatory minimum terms based on the weight of controlled substances with no requirement that the defendant have knowledge of the weight of the substance or that it exceeded any specified limit). We conclude that § 32J does not violate State constitutional rights of due process.5

2. The defendant next argues that the imposition of multiple punishments in this case violates his right not to be punished twice for the same offense. He bases his argument on the “same evidence” rule which states that “where convictions are returned under two statutes, unless ‘each statute requires proof of an additional fact which the other does not,’ *231consecutive sentences may not be imposed.” Commonwealth v. Wilson, 381 Mass. 90, 124 (1980), quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871). The defendant believes that this rule expresses a right that is at least implicit in articles 1, 10 and 12 of the Declaration of Rights. Since the crimes of which the defendant stands convicted meet the “same evidence” test, the defendant maintains that a consecutive sentence for the § 32J conviction cannot be imposed on him.

The “same evidence” rule, first expressed in the Morey case, is a rule of Massachusetts common law, and “[o]ur determinations [applying it] have not been based on the double jeopardy clause of the Fifth Amendment to the Constitution of the United States (applicable to the States through the Fourteenth Amendment) or on whatever comparable principle may be found in the Constitution of the Commonwealth (there being no explicit double jeopardy clause).”6 Shabazz v. Commonwealth, 387 Mass. 291, 294 (1982). Under our common law rule, the fact that the crime described in § 32A is a lesser included offense of the crime described in § 32J does not automatically make unlawful the imposition of separate consecutive sentences on a defendant who is convicted of both crimes. As has already been noted, because the Legislature has broad power to define crimes, and to create punishments for them, it may permissibly impose consecutive punishments. See Missouri v. Hunter, 459 U.S. 359, 368 (1983) (“[s] imply because two criminal statutes may be construed to proscribe the same conduct . . . does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes”); Jones v. Thomas, 491 U.S. 376, 381 (1989) (“[Respondent's conviction of both felony murder and [the underlying felony of] attempted robbery gave rise to a double jeopardy claim only because the [State] Legislature did not in*232tend to allow conviction and punishment for both felony murder and the underlying felony” [emphasis in original]); Commonwealth v. Crocker, 384 Mass. 353, 359-360 (1981) (“Whether characterized as a constitutional requirement under the double jeopardy clause of the Fifth Amendment . . . or as a common law rule, . . . ‘where two statutory provisions proscribe the “same offense” [as defined by Morey and Blockburger (see note 6, supra)] they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent,’ ” quoting Whalen v. United States, 445 U.S. 684, 692 [1980]).

The “same evidence” rule is a principle of statutory construction designed to aid in the judicial interpretation of criminal statutes where the Legislature has not expressed an intent as to consecutive punishments. See Commonwealth v. Crocker, supra at 360 (“[T]he prohibition against duplicitous convictions limits not the legislative power to declare substantive criminal law but rather the judicial interpretation of that law”). Where the Legislature has specifically authorized cumulative punishment under two statutes, even if the two statutes proscribe the same conduct under the Morey test, a court’s job of statutory construction is terminated, and the intent of the Legislature is to be enforced. See Shabazz v. Commonwealth, supra at 294; Aldoupolis v. Commonwealth, 386 Mass. 260, 272, cert, denied, 459 U.S. 864 (1982); Crocker v. Commonwealth, supra at 360.

The Legislature has made it clear that two consecutive sentences must be imposed by expressly providing that the sentence imposed on the violation of § 32J must begin after the sentence imposed on the violation of the predicate crime has expired. Although the point might have been stated in other language, the Legislature’s intent is not ambiguous or obscure. We reject the defendant’s arguments that the Morey test should be applied to his benefit notwithstanding the Legislature’s definitive expression of intent. We also reject the defendant’s arguments that we should find implicit in articles 1,10, and 12 of the Declaration of Rights a prohibí*233tion against multiple punishments that strikes down the punishment explicitly called for by § 32J.

3. The defendant also argues that § 32J, by holding him strictly liable on the school zone element, and then requiring after conviction a consecutive mandatory minimum sentence, violates the prohibition in art. 26 of the Declaration of Rights against cruel or unusual punishment. This issue was not raised below, but we choose to consider it because it involves a fundamental right, has been fully briefed, and is certain to be raised in other cases. See Commonwealth v. Colon-Cruz, 393 Mass. 150, 154-157 (1984); Commonwealth v. Davis, 410 Mass. 680, 684 (1991). We reject the argument.

We note again that the Legislature has considerable latitude to determine what conduct should be regarded as criminal and to prescribe penalties to vindicate the legitimate interests of society. Commonwealth v. Morrow, 363 Mass. 601, 610-611 (1973). McDonald v. Commonwealth, 173 Mass. 322, 328 (1899). “The function of the legislature is primary, its exercises fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of their wisdom or propriety.” Weems v. United States, 217 U.S. 349, 379 (1910). It is thus with restraint that we exercise our power of review to determine whether the punishment before us exceeds the constitutional limitations imposed by art. 26.

This court has recognized that “it is possible that imprisonment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel or unusual punishment.” McDonald v. Commonwealth, supra at 328. Although punishment may be cruel and unusual not only in manner but also in length, “a heavy burden is on the sentenced defendant to establish that the punishment is disproportionate to the offense for which he was convicted.” Commonwealth v. O’Neal, 369 Mass. 242, 248 (1975) (Tauro, C.J., concurring). It must be so disproportionate to the crime that it “shocks the conscience and offends fundamental notions of human dignity.” In re Lynch, 8 Cal. 3d 410, 424 (1972). In deciding whether the punishment called *234for by § 32J violates this standard, we examine three objective considerations: (1) the nature of the offender and offense in light of the degree of harm to society; (2) sentencing provisions in other jurisdictions for similar offenses; and (3) sentences for more severe offenses within the Commonwealth. Commonwealth v. Therriault, 401 Mass. 237, 240 (1987). Cepulonis v. Commonwealth, 384 Mass. 495, 497 (1981), appeal dismissed, 455 U.S. 931 (1982).

As to the first consideration, the Legislature could rationally conclude that the danger to the public, particularly young children and adolescents, posed by the intent to distribute or the distribution of dangerous drugs near a school is grave enough to require severe punishment. It is well recognized that traffic in narcotics creates serious social concerns and is at the root of other crimes. Drugs are especially destructive of children and young people, tending to trap them at an early age in a life of antisocial behavior, poverty, despair and crime. The enhanced penalty in § 32J serves as a deterrent to those who distribute or traffic in drugs.

Further, the penalty called for by § 32J does not punish a status offense or a fortuitous event, because the sanction of the statute is imposed only on those who are found guilty of a predicate offense which requires an intent to distribute or distribution of drugs. Compare Robinson v. California, 370 U.S. 660 (1962) (imprisonment for status of being a drug addict violates the Eighth Amendment’s ban on cruel and unusual punishment). Also, on the point of proportionality, a sentencing judge retains discretion with respect to any intent to distribute offense which forms the predicate for a § 32J conviction (viz., the crimes stated in G. L. c. 94C, § 32, and §§ 32A through F) to fashion a fair sentence. These offenses do not carry mandatory minimum requirements. Thus, a sentencing judge who concludes that the “from and after” penalty provisions of § 32J are disproportionate to the offense before him may mitigate the impact of § 32J by sentencing the defendant to a lesser sentence or probation on the underlying offense. (Note, in this case, the defendant’s sentence on *235his conviction under G. L. c. 94C, 32A, to a term of ninety days.)7

Turning to the second consideration of the analysis, the two-year mandatory enhancement for a school zone offense is not excessive when compared to punishments regularly imposed for other narcotics offenses in the Commonwealth, some of which may be considered extreme in particular circumstances. See, e.g., G. L. c. 94C, § 32E (b) (4) (fifteen-year minimum mandatory sentence for trafficking over 200 grams of cocaine); G. L. c. 94C, § 32A (d) (five-year minimum mandatory sentence for distribution of cocaine following previous drug conviction). Although one could disagree with the ultimate wisdom of a legislative decision which in some cases places a mandatory minimum sentence upon another mandatory minimum sentence, it cannot reasonably be said that the net result in terms of total years of incarceration is constitutionally disproportionate to sentences regularly imposed for more severe offenses in the Commonwealth. See, e.g., Cepulonis v. Commonwealth, supra at 499 (upholding forty to fifty year sentence for possession of machine gun).

With respect to the third consideration, the sentencing scheme of G. L. c. 94C, § 32J, is proportionate to punishments imposed in other jurisdictions for a similar offense. The Federal school zone act provides for up to twice the penalty imposed for the underlying drug offense. 21 U.S.C. § 860 (1992) (possible forty year sentence). At least twenty-three States and territories have also enacted criminal statutes which penalize in various ways the sale or distribution of *236controlled substances on or near school grounds.8 Many of these jurisdictions provide enhanced penalties for school zone drug offenses, either through multipliers patterned after the Federal statute or through required “from and after” sentences like the penalties imposed in Massachusetts.9

*2374. The defendant’s last argument concerns the judge’s instruction on consciousness of guilt. It is conceded that the instruction that was given satisfied the requirements of Commonwealth v. Toney, 385 Mass. 575, 585 (1982). No request was made for the supplemental instruction discussed in Toney, supra at 585 n.6. No objection was made by the defendant’s trial counsel to the instruction given. It was adequately brought to the jury’s attention that the defendant’s conduct when the police arrived may have had an innocent basis, and that he maintained that he was only present in the apartment without any knowledge of, or intent to distribute, drugs. As the defendant’s counsel put it in closing argument: “this [is] a case of [the defendant] being in the wrong place at the wrong time.” In the circumstances, the defendant has not demonstrated that the consciousness of guilt instruction created a substantial risk of a miscarriage of justice.

Judgments affirmed.

OPINION OF THE COURT

Chief Judge Kaye.

Penal Law § 220.18 (5) makes it a felony to "knowingly and unlawfully possess * * * six hundred twenty-five milligrams of a hallucinogen.” The question of statutory interpretation before us is whether "knowingly” applies to the weight of the controlled substance. We conclude that it does and that the trial evidence was insufficient to satisfy that mental culpability element.

A subsidiary issue concerns the denial of defendant’s request to represent himself at trial. We agree with defendant that the trial court’s basis for denying the application was improper, and that the issue was not waived in a subsequent letter to the trial court or in his jurisdictional statement to this Court.

I.

Viewed in a light most favorable to the People (People v Contes, 60 NY2d 620, 621), the trial evidence revealed that on October 2, 1990 defendant asked his friend David Hopkins to order and receive a shipment of hallucinogenic mushrooms on his behalf. Hopkins agreed, and adhering to defendant’s instructions placed a call to their mutual friend Scott in San Francisco and requested the "usual shipment.” Tipped off to the transaction, on October 5 State Police Investigator Douglas Vredenburgh located the package at a Federal Express warehouse in Binghamton. The package was opened (pursuant to a search warrant) and resealed after its contents were verified. The investigator then borrowed a Federal Express *500uniform and van and delivered the package to Hopkins, the addressee, who was arrested upon signing for it.

Hopkins explained that the package was for defendant and agreed to participate in a supervised delivery to him. In a telephone call recorded by the police, Hopkins notified defendant that he got the package, reporting a "shit load of mushrooms in there.” Defendant responded, "I know, don’t say nothing.” At another point Hopkins referred to the shipment containing two pounds. The men agreed to meet later that evening at the firehouse in West Oneonta.

At the meeting, after a brief conversation, Hopkins handed defendant a substitute package stuffed with newspaper. Moments after taking possession, defendant was arrested. He was later indicted for attempted criminal possession of a controlled substance in the second degree.

In pretrial letters to the Trial Judge, defendant expressed dissatisfaction with his assigned attorney and requested permission to represent himself. The Judge held a hearing, questioning defendant on his knowledge of the law and trial procedure. Defendant, who had three years of college and had previously stood trial for another offense, provided answers that were reasonably accurate for a layperson.1 Nevertheless, the court denied the request, concluding that defendant was "not sufficiently qualified to represent [himjself in this charge that faces life imprisonment.” In a subsequent letter dated May 13, 1991, defendant thanked the Judge for taking time to determine whether he was capable of representing himself, expressing confidence that he would get a fair trial and the hope that, with his attorney’s help, he would soon earn his freedom.

The case proceeded to trial, where the evidence summarized above was adduced. Additionally, the police chemist testified that the total weight of the mushrooms in Hopkins’ package was 932.8 grams (about two pounds), and that a 140-gram sample of the package contents contained 796 milligrams of psilocybin, a hallucinogen (Penal Law § 220.00 [9]; Public Health Law § 3306 [schedule I] [d] [19]). He did not know, however, the process by which psilocybin appears in mushrooms, whether naturally, by injection or some other means. *501Nor was there any evidence as to how much psilocybin would typically appear in two pounds of mushrooms.

At the close of the People’s case, defendant moved to dismiss for insufficient proof that he knew the level of psilocybin in the mushrooms, and also requested a charge-down to seventh degree attempted criminal possession, which has no weight element. Both applications were denied, defendant was convicted as charged, and he was sentenced as a second felony offender to 10 years-to-life.

The Appellate Division affirmed. The court held that a defendant must know the nature of the substance possessed, and acknowledged that the weight of the controlled substance is an element of the crime. The court declined, however, to read the statute as requiring that a defendant have actual knowledge of the weight. Instead, the court held that "the term 'knowingly’ should be construed to refer only to the element of possession and not to the weight requirement.” (184 AD2d 24, 27.)

Finding ample evidence that defendant intended and attempted to possess psilocybin while knowing the nature of the substance, and that the weight of the psilocybin ultimately proved to be more than 625 milligrams, the Appellate Division sustained the conviction. Similarly, because there was no reasonable view of the evidence that the weight of the psilocybin in the mushrooms was less than 625 milligrams, the court rejected the argument that the trial court erred in refusing the charge-down.

Finally, the Appellate Division concluded that, by virtue of his May 13 letter, defendant waived any objection with respect to the denial of his request to proceed pro se.

We now reverse.

II.

Although the present case involves an attempt, analysis begins with the elements of the completed crime, second degree criminal possession of a controlled substance. Penal Law § 220.18 (5) provides:

"A person is guilty of criminal possession of a controlled substance in the second degree when he knowingly and unlawfully possesses: * * *

"5. six hundred twenty-five milligrams of a hallucinogen.”

*502It is undisputed that the knowledge requirement of the statute applies to the element of possession (see also, Penal Law § 15.00 [2]), and that defendant must also have "actual knowledge of the nature of the possessed substance” (People v Reisman, 29 NY2d 278, 285). At issue is whether defendant must similarly know the weight of the material possessed. That is a question of statutory interpretation, as to which the Court’s role is clear: our purpose is not to pass on the wisdom of the statute or any of its requirements, but rather to implement the will of the Legislature as expressed in its enactment (People v Smith, 79 NY2d 309, 311).

In effectuating legislative intent, we look first of course to the statutory language. Read in context, it seems evident that "knowingly” does apply to the weight element. Indeed, given that a defendant’s awareness must extend not only to the fact of possessing something ("knowingly * * * possesses”) but also to the nature of the material possessed ("knowingly * * * possesses * * * a hallucinogen”), any other reading would be strained. Inasmuch as the knowledge requirement carries through to the end of the sentence (see, People v Reisman, 29 NY2d, at 285), eliminating it from the intervening element — weight—would rob the statute of its obvious meaning. We conclude, therefore, that there is a mens rea element associated with the weight of the drug.

That reading is fortified by two rules of construction ordained by the Legislature itself. First, a "statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability” (Penal Law § 15.15 [2]). If any material element of an offense lacks a mens rea requirement, it is a strict liability crime (Penal Law § 15.10). Conversely, a crime is one of "mental culpability” only when a mental state "is required with respect to every material element of an offense” (id.).

By ruling that a defendant need not have knowledge of the weight, the Appellate Division in effect held, to that extent, that second degree criminal possession is a strict liability crime (see, Penal Law § 15.10). That is an erroneous statutory construction unless a legislative intent to achieve that result is "clearly indicated]” (Penal Law § 15.15 [2]).

In a similar vein, the Legislature has provided in Penal Law § 15.15 (1):

"Construction of statutes with respect to culpability requirements.

*503"1. When the commission of an offense defined in this chapter, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms 'intentionally/ 'knowingly,’ 'recklessly’ or 'criminal negligence/ or by use of terms, such as 'with intent to defraud’ and 'knowing it to be false,’ describing a specific kind of intent or knowledge. When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears. ” (Emphasis added.)

Accordingly, if a single mens rea is set forth, as here,2 it presumptively applies to all elements of the offense unless a contrary legislative intent is plain.

We discern no "clear” legislative intent to make the weight of a drug a strict liability element, as is required before we can construe the statute in that manner (Penal Law § 15.15 [1], [2]). Moreover, the over-all structure of the drug possession laws supports the view that a defendant must have some knowledge of the weight.

There are six degrees of criminal possession of a controlled substance, graded in severity from a class A misdemeanor (Penal Law § 220.03 [seventh degree]) up to an A-I felony (Penal Law § 220.21 [first degree]). The definition of each begins identically: "A person is guilty of criminal possession of a controlled substance in the _____ degree when he knowingly and unlawfully possesses * * *.” The primary distinctions between one grade or another relate to the type and weight of the controlled substance, and in some instances the existence of an intent to sell (e.g., Penal Law § 220.16 [1]) or intent to sell combined with a prior drug conviction (e.g., Penal Law § 220.09 [13]).

Taking hallucinogens as an example, knowing and unlawful possession of any amount, even a trace (see, People v Mizell, 72 NY2d 651, 655) is seventh degree possession (Penal Law § 220.03); 25 milligrams or more, fourth degree (Penal Law § 220.09 [6]); 125 milligrams or more, third degree (Penal Law § 220.16 [10]; and 625 milligrams, second degree (Penal Law *504§ 220.18 [5]). The maximum penalty for these crimes ranges from one-year incarceration to a life sentence, yet the only statutory difference relates to the weight of the drugs. To ascribe to the Legislature an intent to mete out drastic differences in punishment without a basis in culpability would be inconsistent with notions of individual responsibility and proportionality prevailing in the Penal Law (see, e.g., Penal Law § 1.05 [4]).

Our cases, too, have suggested that knowledge of the weight is an element. In People v Scarborough (49 NY2d 364, 374), for example, a case involving a similarly worded criminal sale of a controlled substance statute (see, Penal Law § 220.41), we concluded "that there is no substance to defendant Scarborough’s claim of insufficiency of proof on the issue of her knowledge of the weight or the nature of the contents of the glossine envelopes which she delivered to the buyer” (emphasis added).

Similarly, in People v Reisman (29 NY2d 278, 287, supra), defendant — like defendant here — requested a charge-down to an offense that did not require possession of a specified amount. We rejected the claim that the trial court’s failure to deliver the charge was error, first noting that the "weight of the contraband in the carton was uncontradicted” (id., at 287). If defendant’s knowledge of the weight were not an element, and the only issue were the objective weight of the substance, that would have been sufficient to dispose of the claim, as it was for the Appellate Division here (184 AD2d, at 28). But we continued:

"Moreover, the nature of the case and its circumstances depended entirely on a commercial-like shipment of the large quantity. The case could stand or fall on that proof and no other. Consequently, under no view of the facts, because there was no basis in any of the evidence, could the jury find the accused innocent of the higher crime and yet guilty of the misdemeanor which required no minimum quantity” (29 NY2d, at 287).

In the charge-down context, the Court’s reference to the nature and circumstances of the case could only have been an allusion to defendant’s knowledge of the weight.

In sum, the plain language of the statute, rules of construction, the format of the drug possession laws and our cases all lead to the conclusion that the Appellate Division erred in *505holding that there is no mens rea requirement associated with the weight of a controlled substance.

III.

The People’s contrary argument is based in part on a concern that it would be "prohibitively difficult,” if not impossible, to secure convictions if they were required to prove that a defendant had knowledge of the weight. We disagree.

Often there will be evidence from which the requisite knowledge may be deduced, such as negotiations concerning weight, potency or price (see, e.g., People v Acosta, 80 NY2d 665, 668, n 1, and 672-673). Similarly, for controlled substances measured on an "aggregate weight” basis (see, e.g, Penal Law § 220.06 [2]), knowledge of the weight may be inferred from defendant’s handling of the material, because the weight of the entire mixture, including cutting agents, is counted (see generally, Rosenblatt, New York’s New Drug Laws and Sentencing Statutes, at 45-48 [1973]; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 220, at 9 [comparing aggregate and pure weight statutes]).

By contrast, that same inference may be unavailable for controlled substances measured by "pure” weight, like psilocybin. The effective doses of these drugs may be minuscule, and they are customarily combined with other substances to facilitate handling and use. In these circumstances it may indeed be difficult to show defendant’s knowledge of the weight. Although we cannot simply read the knowledge requirement out of the statute, these "compelling practical considerations” may inform our interpretation of that element (see, People v Mizell, 72 NY2d, at 654).

The Legislature has decided that persons who illegally possess larger quantities of controlled substances should be punished more severely; their conduct is more repugnant and presents a greater threat to society. Because drug possession is not a strict liability crime, however, an individual is not deserving of enhanced punishment unless he or she is aware that the amount possessed is greater. A purpose of the knowledge requirement, then, is to avoid overpenalizing someone who unwittingly possesses a larger amount of a controlled substance than anticipated.

That legislative purpose can be satisfied, among other ways, with evidence that the pure weight of the controlled substance *506possessed by defendant is typical for the particular form in which the drug appears. This correlation between the pure weight typically found, and the pure weight actually possessed, substantially reduces the possibility that a person will unjustly be convicted for a more serious crime.

To illustrate: a person may knowingly possess 50 doses of LSD on blotter paper but, understandably, have no awareness what the pure LSD weighs; upon chemical analysis it is determined that defendant actually possessed 2.5 milligrams. If there is evidence that a typical dose of LSD weighs .05 milligrams (see, Chapman v United States, 500 US 453, 457), the jury could conclude, within the meaning of the statute, that defendant knowingly possessed more than 1 milligram, and convict of fourth degree possession (Penal Law § 220.09 [5] [1 mg or more]). If, however, because of some manufacturing defect unknown to defendant those 50 doses weighed 10 milligrams, defendant should not be convicted of more serious third degree possession (Penal Law § 220.16 [9] [5 mg or more]).

There may of course be other ways of proving defendant’s knowledge within the meaning of the statute. Our purpose today, however, is not to survey all of the permissible methods but to clarify that the statute does in fact contain a weight-related mental culpability element.

IV.

With the foregoing principles in mind, we consider whether there was sufficient evidence to convict defendant of attempted second degree possession, an A-II felony.

Certainly there was sufficient evidence from which the jury could conclude, beyond a reasonable doubt, that defendant attempted and intended to possess a two-pound box of hallucinogenic mushrooms. It is also undisputed that, upon testing, the mushrooms in the particular box defendant attempted to possess — the one sent to Hopkins by Scott — contained more than 650 milligrams of psilocybin. The issue we must decide, however, is whether sufficient evidence was presented at trial from which it could be inferred that defendant had the requisite knowledge of the weight.

We disagree with the People’s suggestion that the evidence of defendant’s knowing attempt to possess two pounds of mushrooms, without more, could satisfy their burden of proof. The controlled substance here is psilocybin; had defen*507dont ordered a specific quantity of that drug, plainly that would satisfy the knowledge element. But defendant attempted to possess two pounds of mushrooms, only a small portion of which was pure psilocybin.

Although in these circumstances defendant could properly be convicted of attempting to possess the amount of psilocybin that would typically appear in two pounds of hallucinogenic mushrooms, there was no evidence linking psilocybin weight to mushroom weight. Indeed, there was no evidence indicating whether psilocybin grows naturally or is injected into the mushrooms, or of the usual dose of the drug — matters not within the ken of the typical juror. We thus conclude on this record that there was insufficient evidence to satisfy the knowledge requirement within the meaning of the statute.

That deficiency does not absolve defendant of all criminal liability. There is sufficient evidence to sustain a conviction for the lesser-included offense of attempted criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), which does not have a weight element.

V.

Finally, we briefly consider whether the trial court had a proper basis for denying defendant’s request to represent himself.

A criminal defendant may be permitted to proceed pro se if the request is timely and unequivocal, there has been a knowing and intelligent waiver of the right to counsel, and defendant has not engaged in conduct that would interfere with a fair and orderly trial (People v McIntyre, 36 NY2d 10, 17). Although the trial court in the present case perceived defendant’s legal skills to be wanting, and therefore denied the motion for defendant’s "own protection,” that was not a proper ground for decision. What we said in People v Davis (49 NY2d 114, 120), applies equally here:

"To accept a defendant’s lack of knowledge of legal principles and rules of law or his unfamiliarity with courtroom procedures as the ground for concluding that he is not qualified to represent himself would in effect be to eviscerate the constitutional right of self-representation; such limitations could confidently be said to exist in nearly every criminal case in which the defendant had not received legal training. This, however, appears to *508have been the rationale for the court’s ruling in this case; nothing intimates that the trial court’s evaluation of this defendant as not capable or qualified to represent himself was because of any mental incompetence or illiteracy.”

On this appeal, the People do not defend the trial court’s decision on the merits, instead arguing that the issue is not properly before us because (i) it was not identified in defendant’s rule 500.2 jurisdictional statement (22 NYCRR 500.2) and (ii) it was effectively waived in defendant’s May 13 letter. Neither argument has merit.

Rule 500.2 (c) expressly provides that "inclusion and identification of issues shall not be binding on counsel for brief writing or oral argument purposes.” The issue-identification requirement is for subject matter indexing and calendaring (id.). Nor can defendant’s May 13 letter be read as a waiver of legal issues with respect to the propriety of the trial court’s denial of the motion.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed with leave to the People to institute such proceedings as they deem appropriate respecting the lesser-included offense of attempted criminal possession of a controlled substance in the seventh degree.

Judges Simons, Titone, Hancock, Jr., and Smith concur with Chief Judge Kaye; Judge Bellacosa dissents and votes to affirm for the reasons stated in the opinion by then-Justice Howard A. Levine at the Appellate Division (184 AD2d 24); Judge Levine taking no part.

Order reversed, etc.

Justice HOBBS

delivered the Opinion of the Court.

A jury convicted the defendant, David Whitaker, of possessing with intent to distribute over 1,000 grams. of methamphetamine, a schedule II controlled substance, and importing methamphetamine into Colorado. Whitaker claimed that his conviction should be reversed because the trial judge did not instruct the jury to apply the mens rea of "knowingly" to both the quantity and the importation of the drug. The court of appeals upheld Whitaker's conviction. We agree.

We hold that the General Assembly, in section 18-18-405, did not intend to apply a culpable mental state to the quantity of drugs the defendant distributed, manufactured, dispensed, sold, or possessed. We also hold that importation under Colorado's *557special offender statute, section 1818-407, does not include a mens rea requirement. The jury found beyond a reasonable doubt that the defendant possessed the drug quantity specified by section 18-18-405(8)(a)(III), and imported the drugs across state lines as specified by section 18-18-407(1)(d). Accordingly, we uphold Whitaker's conviction and sentence.

I.

On January 14, 1998, David Whitaker was a passenger on a Greyhound bus en route from Los Angeles, California to Denver, Colorado. The bus stopped in Grand Junetion, Colorado for routine service and to change drivers. Passengers were required to leave the bus during this stop. After the passengers had reboarded, three Grand Junction Police Department officers entered the bus, identifying themselves as police officers. Two of the officers began talking to each of the bus passengers, including Whitaker.

The officers testified that Whitaker appeared nervous while talking to them. When asked about his luggage, Whitaker told the police that he had none. The officers pointed to a black bag near Whitaker and asked if it was his. Whitaker responded that it was not his bag, but said he had placed his jacket and a few other .items inside it because no one else appeared to be using it. Whitaker then consented to a search of the bag. The officers discovered 8.8 pounds of uncut methamphetamine contained in several duct tape covered packages inside the bag.

The prosecution charged Whitaker with several drug offenses1 At trial, Whitaker argued that he did not possess the drugs and did not know that the packages of drugs were in the bag. The defense did not dispute the facts that the bag contained 8.8 pounds of methamphetamine and that the drugs came across Colorado's state lines via the Greyhound bus. The jury convicted Whitaker of possessing 1,000 grams or more of a schedule II controlled substance with intent to distribute and importation of a schedule II controlled substance. The trial court sentenced him to twenty- years in state prison.

The court of appeals affirmed Whitaker's conviction and sentence. People v. Whitaker, 32 P.3d 511 (Colo.App.2000). The court of appeals found that the trial court had correctly instructed the jury on the elements of possession of 1,000 grams or more of a controlled substance with intent to distribute and on the charge of importation of a controlled substance. It held that the prosecution need not prove that Whitaker "knowingly" imported the controlled substance, nor that the defendant "knew" the drugs weighed more than 1,000 grams. Id. at 517-19. The court concluded that special offender drug importation under section 18-18-407(1)(d), 6 C.RS. (2001), and the quantity of a controlled substance possessed under section 18-18-405, 6 C.R.S. (2001), have no mens rea requirement. Id. at 517-18,

We granted certiorari in People v. Whitaker, 32 P.3d 511 (Colo.App.2000), to review the court of appeals' judgment.2 We uphold the judgment.

*558IL.

We hold that the General Assembly, in section 18-18-405, did not intend to apply a culpable mental state to the quantity of drugs the defendant distributed, manufactured, dispensed, sold, or possessed. We also hold that importation under Colorado's special offender statute, section 18-18-407, does not include a mens rea requirement. The jury found beyond a reasonable doubt that the defendant possessed the drug quantity specified by section 18-18-405(8)(a)(III), and imported the drugs across state lines as specified by section 18-18-407(IM)(d). Accordingly, we uphold Whitaker's conviction and sentence. '

A.

Section 18-18-405 and Quantity of Drug

Whitaker argues that the trial court erroneously instructed the jury on the charge of possession with intent to distribute over 1,000 grams of a controlled substance, because it did not clearly instruct that the mens rea "knowingly" applied to the drug quantity. We disagree. '

Section 18-18-405(8)(a)(III) applies to Whitaker because the jury convicted him of possessing more than 1,000 grams of methamphetamine, a schedule II controlled substance, with the intent to distribute. Section 18-18-405(8)(a)(II1) defines the required sentence for a defendant convicted of:-unlawful distribution, manufacturing, dispensing, sale or possession of 1,000 grams or more of a schedule I or II controlled substance.3

Whitaker argues that the quantity of drugs contained 'in section 18-18-is an essential element of the crime of possession with intent to distribute, and the mens rea contained in section 18-18-405(1)(a), "knowingly," must apply to it. However, whether the quantity of drugs involved in the offense requires a mens rea is a matter of statutory interpretation. «"Our fundamental responsibility in interpreting a statute is to give effect to the General Assembly's purpose and intent in enacting the statute." Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139, 1152 (Colo.2001). "If the plain language of the statute clearly expresses the legislative intent, then the court must give effect to the ordinary meaning of the statutory language. Likewise, the court should avoid interpreting a statute in a way that defeats the obvious intent of the legislature." Pediatric Newrosurgery, P.C. v. Russell, 44 P.3d 1063, 1068 (Colo.2002). We must read the statute as a whole, construing each provision consistently and in harmony with the overall statutory design, if possible. Id.; Empire Lodge, 839 P.8d at 1152.

Here, section 18-18-405(1)(a) defines the offense, and the provisions of 18-18-405(2), (8), (5) and (6) set forth the applicable punishment levels.4 This statutory structure demonstrates the General Assembly's intent to separate sentencing factors, such as drug type and quantity, from the elements of the crime. Section 18-18-405(8)(a) does not pre*559scribe drug quantity as an element of the offense, nor does it require proof of a culpa ble mental state in regards to it. Section 18-18-405(1)(a) sets forth the elements of the crime; the mens rea applies to each of these.

Although section 18-18-405(1)(a) requires the prosecution to prove that the defendant "knowingly" distributed, manufactured, dispensed, sold or possessed the controlled substance, nothing in the statute's language suggests that the prosecution must show that the defendant "knew" the actual weight of the drugs under section 18-18-405(8)(a). To the contrary, section 18-18-405(8)(a) triggers the level of punishment upon proof that the drug quantity involved in the offense was "an amount that is or has been represented to be" the amount specified by subsections (I), (I1), or (III) thereunder. In this case, based on the jury's verdict finding the quantity to be 1000 grams or more of a schedule I or II controlled , substance, - section - 18-18-405(8)(a)(III) provided for a sentence to the department of corrections for a term greater than the maximum presumptive range, but not more than twice the maximum presumptive range provided for such offense in seetion 18-1-105(1)(g).

The statute thereby sets forth the drug quantity separately from the elements, with no mens rea requirement and with the apparent design of separating the applicable punishment from the creation and definition of the offense. People v. Ramirez, 997 P.2d 1200, 1208 (Colo.App.1999)(holding that quantity of a controlled substance possessed is not a substantive element of the offense), aff'd by am equally divided court, 48 P.8d 611 (Colo.2001).5

Any amount of drugs, even less than a usable quantity, can support a convietion under 18-18-405(1)(a). Richardson v. People, 25 P.8d 54, 58 (Colo.2001)("In a possession case, a jury may return a verdict of guilty if it finds, beyond a reasonable doubt, that the defendant knowingly possessed any quantity of a controlled substance."). The quantity of drugs turns on objective standards and requires no inquiry into the defendant's state of mind. See United States v. Normandeau, 800 F.2d 953, 956 (9th Cir.1986)(stating that proof of thé amount of drugs is far different from proof that the defendants knew of the amount). ~

The underlying purpose of section 18-18-405(8) is to punish more severely those offenders who deal with large quantities of controlled substances. - The legislature's choice to do so is within its prerogative. People v. Martinez, 36 P.3d 201, 204 (Colo.App.2001); see also Gorman v. People, 19 P.3d 662, 666 (Colo.2000)(stating that we look to the legislative context to see if a mens rea requirement - applies). - Section - 18-18-405(8)(a) does not create an additional element for the underlying substantive offense; rather, it defines cireamstances that, if proven beyond a reasonable doubt, may require a sentence greater than the presumptive minimum contained in section 18-1-105(1)(a), 6 C.R.S. (2001). See People v. Ceja, 904 P.2d 1808, 1810 (Colo.1995)(stating that Colorado Supreme Court cases "have turned not on the quantity of substance found but rather on the knowing possession of that substance"); Ramires, 997 P.2d at 1208 ("Section 18-18-405(8)(a), in itself, does not make possession unlawful and, therefore, does not set forth an offense.").

Here, the issue of drug quantity went to the jury and the possession with intent to distribute more than 1,000 grams of a schedule II controlled substance jury instruction clearly included the quantity of drugs as a fact that must be proven beyond a reasonable doubt. Thus, we find no error.6 See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2848, 147 L.Ed.2d 485 (2000).

*560B.

Section 18-18-407 and Importation of the Drug

The jury found beyond a reasonable doubt that Whitaker imported a controlled substance into Colorado, a special offender factual finding for the jury to make under section 18-18-407(1)(d), 6 C.R.S. (2001).7 Whitaker argues a violation of his constitutional due process rights because the trial court did not instruct the jury to find any culpable mental state regarding the importation charge. He contends that: (1) the Colorado special offender statute creates a separate substantive offense or, alternatively, an additional element for the underlying offense; and (2) the mens rea of "knowingly" must apply to the special offender statute, section 18-18-407, 6 C.R.S. (2001). We disagree.

The plain language of Colorado's special offender statute with regard to importation does not include a culpable mental state. See § 18-18-407, 6 C.RS. (2001). Rather, this provision deals with the level of punishment. Vega v. People, 898 P.2d 107, 112 (stating that importation provision addresses punishment, not the creation of a substantive offense)8 The plain language of the statute indicates that "(1) it is triggered only after a felony drug conviction, and (2) its effect is to increase the required sentencing range upon a finding of one of the specified 'aggravating circumstances." " Vega, 898 P.2d at 118. "Once a jury bas determined that a defendant possessed the mental state required for conviction of the substantive offense, an enhanced sentence must be imposed whether or not the defendant fully knew of the cireumstances leading to the special offender finding." Ramirez, 997 P.2d at 1205.

The legislative history of the special offender provision demonstrates the General Assembly's intent to address punishment rather than defining the elements of an offense. Vega, 898 P.2d at 118 ("During discussion of the motion to adopt the amendment, Joseph Mackey, one of its drafters, testified that the special offender provision is 'not a substantive charge' ...."). The General Assembly added this provision to the Controlled Substances Act to allow greater penalties for drug traffickers. Id. The legislature accomplished this purpose by listing certain extraordinary aggravating cireum-stances that subject a defendant to a greater sentence as a special offender. Id. at 112; Ramirez, 997 P.2d at 1205.

Colorado law requires the fact-finder to enter a special finding in regard to the existence of the special offender cireum-stance. Ramirez, 997 P.2d at 1206 ("Notice is required, trial by jury is not eliminated, and a finding of the existence of the [special offender cireumstance] beyond a reasonable doubt is required before a defendant's sentence is increased.") '

In this case, the jury was instructed to find the presence or absence of the special offender importation fact only if it found Whitaker guilty of the underlying crime, possession with intent to distribute. Whitaker argues that the jury verdict form violated his due process rights because it did not apply a mens rea to the importation of methamphetamine charge. We disagree. The special offender statute's importation feature does not include a mens rea requirement. We find no error.

We also reject Whitaker's argument that Apprendi requires a different result. Here, the fact-finder determined the existence of the special offender fact, importation, beyond a reasonable doubt, in accordance with Apprendi. Apprendi, 580 U.S. at 490, 120 S.Ct. 2348.

IIL.

Accordingly, we affirm the judgment of the court of appeals upholding Whitaker's conviction and sentence.

Chief Justice Rehnquist

delivered the opinion of the Court.

The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transpor*66tation, shipping, receipt, distribution, or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U. S. C. § 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement.

Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii.

These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating 18 U. S. C. §§ 2252(a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U. S. C. § 371.1 Evidence at trial suggested that Gottesman had full awareness of Lords’ underage performances. United States v. Gottes-man, No. CR 88-295KN, Findings of Fact ¶ 7 (CD Cal., Sept. 20, 1989), App. to Pet. for Cert. 39a (“Defendants knew that Traci Lords was underage when she made the films defendant’s [sic] transported or shipped in interstate commerce”). The District Court convicted respondents of all three counts. On appeal, Gottesman argued, inter alia, that the Act was facially unconstitutional because it lacked a necessary scien-*67ter requirement and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United States v. Thomas, 893 F. 2d 1066 (CA9), cert. denied, 498 U. S. 826 (1990). In that case, the Ninth Circuit had held §2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction.

On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found § 2252 facially unconstitutional. The court first held that 18 U. S. C. §2256 met constitutional standards in setting the age of majority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. 982 F. 2d 1285, 1288-1289 (CA9 1992). It then discussed § 2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the materials. 982 F. 2d, at 1290, citing Smith v. California, 361 U. S. 147 (1959); New York v. Ferber, 458 U. S. 747 (1982); and Hamling v. United States, 418 U. S. 87 (1974). The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was produced. 982 F. 2d, at 1291. Because the court found the statute did not require such a showing, it reversed respondents’ convictions. We granted certiorari, 510 U. S. 1163 (1994), and now reverse.

Title 18 U. S. C. § 2252 (1988 ed. and Supp. V) provides, in relevant part:

*68“(a) Any person who—

“(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—

“(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

“(B) such visual depiction is of such conduct;

“(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if—

“(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

“(B) such visual depiction is of such conduct;

“shall be punished as provided in subsection (b) of this section.”

The critical determination which we must make is whether the term “knowingly” in subsections (1) and (2) modifies the phrase “the use of a minor” in subsections (1)(A) and (2)(A). The most natural grammatical reading, adopted by the Ninth Circuit, suggests that the term “knowingly” modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces. Under this construction, the word “knowingly” would not modify the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. But we do not think this is the end of the matter, both because of anomalies which *69result from this construction, and because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.

If the term “knowingly” applies only to the relevant verbs in §2252 — transporting, shipping, receiving, distributing, and reproducing — we would have to conclude that Congress wished to distinguish between someone who knowingly transported a particular package of film whose contents were unknown to him, and someone who unknowingly transported that package. It would seem odd, to say the least, that Congress distinguished between someone who inadvertently dropped an item into the mail without realizing it, and someone who consciously placed the same item in the mail, but was nonetheless unconcerned about whether the person had any knowledge of the prohibited contents of the package.

Some applications of respondents’ position would produce results that were not merely odd, but positively absurd. If we were to conclude that “knowingly” only modifies the relevant verbs in § 2252, we would sweep within the ambit of the statute actors who had no idea that they were even dealing with sexually explicit material. For instance, a retail druggist who returns an uninspected roll of developed film to a customer “knowingly distributes” a visual depiction and would be criminally liable if it were later discovered that the visual depiction contained images of children engaged in sexually explicit conduct. Or, a new resident of an apartment might receive mail for the prior resident and store the mail unopened. If the prior tenant had requested delivery of materials covered by §2252, his residential successor could be prosecuted for “knowing receipt” of such materials. Similarly, a Federal Express courier who delivers a box in which the shipper has declared the contents to be “film” “knowingly transports” such film. We do not assume that Congress, in passing laws, intended such results. Public Citi *70 zen v. Department of Justice, 491 U. S. 440, 453-455 (1989); United States v. Turkette, 452 U. S. 576, 580 (1981).

Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them. The landmark opinion in Morissette v. United States, 342 U. S. 246 (1952), discussed the common-law history of mens rea as applied to the elements of the federal embezzlement statute. That statute read: “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States . . . [s]hall be fined.” 18 U. S. C. §641, cited in Morissette, 342 U. S., at 248, n. 2. Perhaps even more obviously than in the statute presently before us, the word “knowingly” in its isolated position suggested that it only attached to the verb “converts,” and required only that the defendant intentionally assume dominion over the property. But the Court used the background presumption of evil intent to conclude that the term “knowingly” also required that the defendant have knowledge of the facts that made the taking a conversion — i. e., that the property belonged to the United States. Id., at 271. See also United States v. United States Gypsum Co., 438 U. S. 422, 438 (1978) (“[F]ar more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement”).

Liparota v. United States, 471 U. S. 419 (1985), posed a challenge to a federal statute prohibiting certain actions with respect to food stamps. The statute’s use of “knowingly” could be read only to modify “uses, transfers, acquires, alters, or possesses” or it could be read also to modify “in any manner not authorized by [the statute].” Noting that neither interpretation posed constitutional problems, id., at 424, n. 6, the Court held the scienter requirement applied to *71both elements by invoking the background principle set forth in Morissette. In addition, the Court was concerned with the broader reading which would “criminalize a broad range of apparently innocent conduct.” 471 U. S., at 426. Imposing criminal liability on an unwitting food stamp recipient who purchased groceries at a store that inflated its prices to such purchasers struck the Court as beyond the intended reach of the statute.

The same analysis drove the recent conclusion in Staples v. United States, 511 U. S. 600 (1994), that to be criminally liable a defendant must know that his weapon possessed automatic firing capability so as to make it a machinegun as defined by the National Firearms Act. Congress had not expressly imposed any mens rea requirement in the provision criminalizing the possession of a firearm in the absence of proper registration. 26 U. S. C. § 5861(d). The Court first rejected the argument that the statute described a public welfare offense, traditionally excepted from the background principle favoring scienter. Morissette, supra, at 255. The Court then expressed concern with a statutory reading that would criminalize behavior that a defendant believed fell within “a long tradition of widespread lawful gun ownership by private individuals.” Staples, 511 U. S., at 610. The Court also emphasized the harsh penalties attaching to violations of the statute as a “significant consideration in determining whether the statute should be construed as dispensing with mens rea.” Id., at 616.

Applying these principles, we think the Ninth Circuit’s plain language reading of § 2252 is not so plain. First, § 2252 is not a public welfare offense. Persons do not harbor settled expectations that the contents of magazines and film are generally subject to stringent public regulation. In fact, First Amendment constraints presuppose the opposite view. Rather, the statute is more akin to the common-law offenses against the “state, the person, property, or public morals,” Morissette, supra, at 255, that presume a scienter require*72ment in the absence of express contrary intent.2 Second, Staples’ concern with harsh penalties looms equally large respecting §2252: Violations are punishable by up to 10 years in prison as well as substantial fines and forfeiture. 18 U. S. C. §§ 2252(b), 2253, 2254. See also Morissette, supra, at 260.

Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct. Staples held that the features of a gun as technically described by the firearm registration Act was such an element. Its holding rested upon “the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in defiling with the regulated items.” Staples, supra, at 619. Age of minority in §2252 indisputably possesses the same status as an elemental fact because nonob-scene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. Alexander v. United States, 509 U. S. 544, 549-550 (1993); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989); FW/PBS, Inc. v. Dallas, 493 U. S. 215, 224 (1990); Smith v. California, 361 U. S., at 152.3 In the light of these *73decisions, one would reasonably expect to be free from regulation when trafficking in sexually explicit, though not obscene, materials involving adults. Therefore, the age of the performers is the crucial element separating legal innocence from wrongful conduct.

The legislative history of the statute evolved over a period of years, and perhaps for that reason speaks somewhat indistinctly to the question whether “knowingly” in the statute modifies the elements of subsections (1)(A) and (2)(A) — that the visual depiction involves the use of a minor engaging in sexually explicit conduct — or merely the verbs “transport or ship” in subsection (1) and “receive or distribute . . . [or] reproduce” in subsection (2). In 1959, we held in Smith v. California, supra, that a California statute that dispensed with any mens rea requirement as to the contents of an obscene book would violate the First Amendment. Id., at 154. When Congress began dealing with child pornography in 1977, the content of the legislative debates suggest that it was aware of this decision. See, e. g., 123 Cong. Rec. 30935 (1977) (“It is intended that they have knowledge of the type of material. . . proscribed by this bill. The legislative history should be clear on that so as to remove any chance it will lead into constitutional problems”). Even if that were not the case, we do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court. Yates v. United States, 354 U. S. 298, 319 (1957) (“In [construing the statute] we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked”). When first passed, §2252 pun*74ished one who “knowingly transports or ships in interstate or foreign commerce or mails, for the purpose of sale or distribution for sale, any obscene visual or print medium” if it involved the use of a minor engaged in sexually explicit conduct. Pub. L. 95-225, 92 Stat. 7 (emphasis added). Assuming awareness of Smith, at a minimum, “knowingly” was intended to modify “obscene” in the 1978 version.

In 1984, Congress amended the statute to its current form, broadening its application to those sexually explicit materials that, while not obscene as defined by Miller v. California, 413 U. S. 15 (1973),4 could be restricted without violating the First Amendment as explained by New York v. Ferber, 458 U. S. 747 (1982). When Congress eliminated the adjective “obscene,” all of the elements defining the character and content of the materials at issue were relegated to subsections (1)(a) and (2)(a). In this effort to expand the child pornography statute to its full constitutional limits, Congress nowhere expressed an intent to eliminate the mens rea requirement that had previously attached to the character and content of the material through the word obscene.

The Committee Reports and legislative debate speak more opaquely as to the desire of Congress for a scienter requirement with respect to the age of minority. An early form of the proposed legislation, S. 2011, was rejected principally because it failed to distinguish between obscene and non-obscene materials. S. Rep. No. 95-438, p. 12 (1977). In evaluating the proposal, the Justice Department offered its thoughts:

“[T]he word ‘knowingly’ in the second line of section 2251 is unnecessary and should be stricken. . . . Unless ‘knowingly’ is deleted here, the bill might be subject to an interpretation requiring the Government to prove *75the defendant’s knowledge of everything that follows ‘knowingly’, including the age of the child. We assume that it is not the intention of the drafters to require the Government to prove that the defendant knew the child was under age sixteen but merely to prove that the child was, in fact, less than age sixteen....

“On the other hand, the use of the word ‘knowingly’ in subsection 2252(a)(1) is appropriate to make it clear that the bill does not apply to common carriers or other innocent transporters who have no knowledge of the nature or character of the material they are transporting. To clarify the situation, the legislative history might reflect that the defendant’s knowledge of the age of the child is not an element of the offense but that the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved.” Id., at 28-29.

Respondents point to this language as an unambiguous revelation that Congress omitted a scienter requirement. But the bill eventually reported by the Senate Judiciary Committee adopted some, but not all, of the Department’s suggestions; most notably, it restricted the prohibition in § 2251 to obscene materials. Id., at 2. The Committee did not make any clarification with respect to scienter as to the age of minority. In fact, the version reported by the Committee eliminated § 2252 altogether. Ibid. At that juncture, Senator Roth introduced an amendment which would be another precursor of § 2252. In one paragraph, the amendment forbade any person to “knowingly transport [or] ship . . . [any] visual medium depicting a minor engaged in sexually explicit conduct.” 123 Cong. Rec. 33047 (1977). In an exchange during debate, Senator Percy inquired:

“Would this not mean that the distributor or seller must have either, first, actual knowledge that the materials do contain child pornographic depictions or, second, cir*76cumstances must be such that he should have had such actual knowledge, and that mere inadvertence or negligence would not alone be enough to render his actions unlawful?” Id., at 33050.

Senator Roth replied:

“That is absolutely correct. This amendment, limited as it is by the phrase ‘knowingly,’ insures that only those sellers and distributors who are consciously and deliberately engaged in the marketing of child pornography ... are subject to prosecution . . ..” Ibid.

The parallel House bill did not contain a comparable provision to § 2252 of the Senate bill, and limited § 2251 prosecutions to obscene materials. The Conference Committee adopted the substance of the Roth amendment in large part, but followed the House version by restricting the proscribed depictions to obscene ones. The new bill did restructure the §2252 provision somewhat, setting off the age of minority requirement in a separate subclause. S. Conf. Rep. No. 95-601, p. 2 (1977). Most importantly, the new bill retained the adverb “knowingly” in § 2252 while simultaneously deleting the word “knowingly” from § 2251(a). The Conference Committee explained the deletion in § 2251(a) as reflecting an “intent that it is not a necessary element of a prosecution that the defendant knew the actual age of the child.” Id., at 5.5 Respondents point to the appearance of “knowingly” in *77§ 2251(c) and argue that §2252 ought to be read like §2251. But this argument depends on the conclusion that § 2252(c) does not include a knowing requirement, a premise that respondents fail to support. Respondents offer in support of their premise only the legislative history discussing an intent to exclude a scienter requirement from § 2251(a). Because §§ 2251(a) and 2251(c) were passed at different times and contain different wording, the intent to exclude scienter from § 2251(a) does not imply an intent to exclude scienter from § 2251(c).6

The legislative history can be summarized by saying that it persuasively indicates that Congress intended that the term “knowingly” apply to the requirement that the depiction be of sexually explicit conduct; it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement extend also to the age of the performers. But, turning once again to the statute itself, if the term “knowingly” applies to the sexually explicit conduct depicted, it is emancipated from merely modifying the verbs in subsections (1) and (2). And as a matter of grammar it is *78difficult to conclude that the word “knowingly” modifies one of the elements in subsections (1)(A) and (2)(A), but not the other.

A final canon of statutory construction supports the reading that the term “knowingly” applies to both elements. Cases such as Ferber, 458 U. S., at 765 (“As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant”); Smith v. California, 361 U. S. 147 (1959); Hamling v. United States, 418 U. S. 87 (1974); and Osborne v. Ohio, 495 U. S. 103, 115 (1990), suggest that a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts. It is therefore incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988).

For all of the foregoing reasons, we conclude that the term “knowingly” in §2252 extends both to the sexually explicit nature of the material and to the age of the performers.

As an alternative grounds for upholding the reversal of their convictions, respondents reiterate their constitutional challenge to 18 U. S. C. § 2256. These claims were not encompassed in the question on which this Court granted cer-tiorari, but a prevailing party, without cross-petitioning, is “entitled under our precedents to urge any grounds which would lend support to the judgment below.” Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 419 (1977). Respondents argue that § 2256 is unconstitutionally vague and overbroad because it makes the age of majority 18, rather than 16 as did the New York statute upheld in New York v. Ferber, supra, and because Congress replaced the term “lewd” with the term “lascivious” in defining illegal exhibition of the genitals .of children. We regard these claims as insubstantial, *79and reject them for the reasons stated by the Court of Appeals in its opinion in this case.

Respondents also argued below that their indictment was fatally defective because it did not contain a scienter requirement on the age of minority. The Court of Appeals did not reach this issue because of its determination that §2252 was unconstitutional on its face, and we decline to decide it here.

The judgment of the Court of Appeals is

Reversed.

Justice Stevens,

concurring.

In my opinion, the normal, commonsense reading of a subsection of a criminal statute introduced by the word “knowingly” is to treat that adverb as modifying each of the elements of the offense identified in the remainder of the subsection. Title 18 U. S. C. § 2252(a)(1) (1988 ed. and Supp. V) reads as follows:

“(a) Any person who—

“(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—

“(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

“(B) such visual depiction is of such conduct.” (Emphasis added.)

Surely reading this provision to require proof of scienter for each fact that must be proved is far more reasonable than adding such a requirement to a statutory offense that contains no scienter requirement whatsoever. Cf. Staples v. United States, 511 U. S. 600, 624 (1994) (Stevens, J., dissenting). Indeed, as the Court demonstrates, ante, at 69-70, to give the statute its most grammatically correct reading, and merely require knowledge that a “visual depiction” has been *80shipped in interstate commerce, would be ridiculous. Accordingly, I join the Court’s opinion without qualification.

Justice Scalia,

with whom Justice Thomas joins,

dissenting.

Today’s opinion is without antecedent. None of the decisions cited as authority support interpreting an explicit statutory scienter requirement in a manner that its language simply will not bear. Staples v. United States, 511 U. S. 600 (1994), discussed ante, at 71, and United States v. United States Gypsum Co., 438 U. S. 422 (1978), discussed ante, at 70, applied the background common-law rule of scienter to a statute that said nothing about the matter. Morissette v. United States, 342 U. S. 246 (1952), discussed ante, at 70, applied that same background rule to a statute that did contain the word “knowingly,” in order to conclude that “knowingly converts” requires knowledge not merely of the fact of one’s assertion of dominion over property, but also knowledge of the fact that that assertion is a conversion, i. e., is wrongful.* Liparota v. United States, 471 U. S. 419 (1985), discussed ante, at 70, again involved a statute that did contain the word “ ‘knowingly,’ ” used in such a fashion that it could reasonably and grammatically be thought to apply (1) only to the phrase “ ‘uses, transfers, acquires, alters, or possesses’ ” (which would cause a defendant to be liable without wrongful intent), or ,(2) also to the later phrase “ ‘in any manner not authorized by [the statute].’” Once again applying the background rule of scienter, the latter reasonable and permissible reading was preferred.

There is no way in which any of these cases, or all of them in combination, can be read to stand for the sweeping propo*81sition that “the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct,” ante, at 72, even when the plain text of the statute says otherwise. All those earlier cases employ the presumption as a rule of interpretation which applies when Congress has not addressed the question of criminal intent (Staples and Gypsum), or when the import of what it has said on that subject is ambiguous (Morissette and Liparota). Today’s opinion converts the rule of interpretation into a rule of law, contradicting the plain import of what Congress has specifically prescribed regarding criminal intent.

In United States v. Thomas, 893 F. 2d 1066, 1070 (CA9), cert. denied, 498 U. S. 826 (1990), the Ninth Circuit interpreted 18 U. S. C. § 2252 to require knowledge of neither the fact that the visual depiction portrays sexually explicit conduct, nor the fact that a participant in that conduct was a minor. The panel in the present case accepted that interpretation. See 982 F. 2d 1285, 1289 (CA9 1992). To say, as the Court does, that this interpretation is “the most grammatical reading,” ante, at 70, or “[t]he most natural grammatical reading,” ante, at 68, is understatement to the point of distortion — rather like saying that the ordinarily preferred total for two plus two is four. The Ninth Circuit’s interpretation is in fact and quite obviously the only grammatical reading. If one were to rack his brains for a way to express the thought that the knowledge requirement in subsection (a)(1) applied only to the transportation or shipment of visual depiction in interstate or foreign commerce, and not to the fact that that depiction was produced by use of a minor engaging in sexually explicit conduct, and was a depiction of that conduct, it would be impossible to construct a sentence structure that more clearly conveys that thought, and that thought alone. The word “knowingly” is contained, not merely in a distant phrase, but in an entirely separate clause from the one into which today’s opinion inserts it. The *82equivalent, in expressing a simpler thought, would be the following: “Anyone who knowingly double-parks will be subject to a $200 fine if that conduct occurs during the 4:30-to-6:30 rush hour.” It could not be clearer that the scienter requirement applies only to the double-parking, and not to the time of day. So also here, it could not be clearer that it applies only to the transportation or shipment of visual depiction in interstate or foreign commerce. There is no doubt. There is no ambiguity. There is no possible “less natural” but nonetheless permissible reading.

I have been willing, in the case of civil statutes, to acknowledge a doctrine of “scrivener’s error” that permits a court to give an unusual (though not unheard-of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result. See Green v. Bock Laundry Machine Co., 490 U. S. 504, 527 (1989) (ScALIA, J., concurring). Even if I were willing to stretch that doctrine so as to give the problematic text a meaning it cannot possibly bear; and even if I were willing to extend the doctrine to criminal cases in which its application would produce conviction rather than acquittal; it would still have no proper bearing here. For the sine qua non of any “scrivener’s error” doctrine, it seems to me, is that the meaning genuinely intended but inadequately expressed must be absolutely clear; otherwise we might be rewriting the statute rather than correcting a technical mistake. That condition is not met here.

The Court acknowledges that “it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement [of scienter] extend ... to the age of the performers.” Ante, at 77. That is surely so. In fact, it seems to me that the dominant (if not entirely uncon-tradicted) view expressed in the legislative history is that set forth in the statement of the Carter Administration Justice Department which introduced the original bill: “[T]he defendant’s knowledge of the age of the child is not an ele*83ment of the offense but. . . the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved.” S. Rep. No. 95-438, p. 29 (1977). As applied to the final bill, this would mean that the scienter requirement applies to the element of the crime that the depiction be of “sexually explicit conduct,” but not to the element that the depiction “involvfe] the use of a minor engaging” in such conduct. See 18 U. S. C. §§ 2252(a)(1)(A) and (a)(2)(A). This is the interpretation that was argued by the United States before the Ninth Circuit. See 982 F. 2d, at 1289.

The Court rejects this construction of the statute for two reasons: First, because “as a matter of grammar it is difficult to conclude that the word ‘knowingly’ modifies one of the elements in subsections (1)(A) and (2)(A), but not the other.” Ante, at 77-78. But as I have described, “as a matter of grammar” it is also difficult (nay, impossible) to conclude that the word “knowingly” modifies both of those elements. It is really quite extraordinary for the Court, fresh from having, as it says, ibid., “emancipated” the adverb from the grammatical restriction that renders it inapplicable to the entire conditional clause, suddenly to insist that the demands of syntax must prevail over legislative intent — thus producing an end result that accords neither with syntax nor with supposed intent. If what the statute says must be ignored, one would think we might settle at least for what the statute was meant to say; but alas, we are told, what the statute says prevents this.

The Court’s second reason is even worse: “[A] statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts.” Ante, at 78. In my view (as in the apparent view of the Government before the Court of Appeals) that is not true. The Court derives its “serious constitutional doubts” from the fact that “sexually explicit materials involving persons over the age of 17 are protected by the First Amendment,” *84 ante, at 72. We have made it entirely clear, however, that the First Amendment protection accorded to such materials is not as extensive as that accorded to other speech. “[Tjhere is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance . . . .” Young v. American Mini Theatres, Inc., 427 U. S. 50, 61 (1976). See also id., at 70-71 (“[E]ven though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate . . .”) (opinion of Stevens, J., joined by Burger, C. J., and White and Rehnquist, JJ.). Cf. FCC v. Pacifica Foundation, 438 U. S. 726, 743 (1978) (While some broadcasts of patently offensive references to excretory and sexual organs and activities may be protected, “they surely lie at the periphery of First Amendment concern”). Let us be clear about what sort of pictures are at issue here. They are not the sort that will likely be found in a catalog of the National Gallery or the Metropolitan Museum of Art. “‘[Sjexually explicit conduct,”’ as defined in the statute, does not include mere nudity, but only conduct that consists of “sexual intercourse ... between persons of the same or opposite sex,” “bestiality,” “masturbation,” “sadistic or masochistic abuse,” and “lascivious exhibition of the genitals or pubic area.” See 18 U. S. C. §2256(2). What is involved, in other words, is not the clinical, the artistic, nor even the risqué, but hard-core pornography. Indeed, I think it entirely clear that all of what is involved constitutes not merely pornography but fully proscribable obscenity, except to the extent it is joined with some other material (or perhaps some manner of presentation) that has artistic or other social value. See Miller v. California, 413 U. S. 15, 24 (1973). (Such a requirement cannot be imposed, of *85course, upon fully protected speech: one can shout “Down with the Republic!,” “Hooray for Mozart!,” or even “Twenty-Three Skidoo!,” whether or not that expression is joined with something else of social value.) And whereas what is on one side of the balance in the present case is this material of minimal First Amendment concern, the Court has described what is on the other side — “prevention of sexual exploitation and abuse of children” — as “a government objective of surpassing importance.” New York v. Ferber, 458 U. S. 747, 757 (1982).

I am not concerned that holding the purveyors and receivers of this material absolutely liable for supporting the exploitation of minors will deter any activity the United States Constitution was designed to protect. But I am concerned that the Court’s suggestion of the unconstitutionality of such absolute liability will cause Congress to leave the world’s children inadequately protected against the depredations of the pornography trade. As we recognized in Ferber, supra, at 766, n. 19, the producers of these materials are not always readily found, and are often located abroad; and knowledge of the performers’ age by the dealers who specialize in child pornography, and by the purchasers who sustain that market, is obviously hard to prove. The First Amendment will lose none of its value to a free society if those who knowingly place themselves in the stream of pornographic commerce are obliged to make sure that they are not subsidizing child abuse. It is no more unconstitutional to make persons who knowingly deal in hard-core pornography criminally liable for the underage character of their entertainers than it is to make men who engage in consensual fornication criminally liable (in statutory rape) for the underage character of their partners.

I would dispose of the present case, as the Ninth Circuit did, by reading the statute as it is written: to provide criminal penalties for the knowing transportation or shipment of a visual depiction in interstate or foreign commerce, and for *86the knowing receipt or distribution of a visual depiction so transported or shipped, if that depiction was (whether the defendant knew it or not) a portrayal of a minor engaging in sexually explicit conduct. I would find the statute, as so interpreted, to be unconstitutional since, by imposing criminal liability upon those not knowingly dealing in pornography, it establishes a severe deterrent, not narrowly tailored to its purposes, upon fully protected First Amendment activities. See Smith v. California, 361 U. S. 147, 153-154 (1959). This conclusion of unconstitutionality is of course no ground for going back to reinterpret the statute, making it say something that it does not say, but that is constitutional. Not every construction, but only “ ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) (quoting Hooper v. California, 155 U. S. 648, 657 (1895)) (emphasis added). “ ‘ “Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964)). Otherwise, there would be no such thing as an unconstitutional statute. As I have earlier discussed, in the present case no reasonable alternative construction exists, neither any that can be coaxed from the text nor any that can be substituted for the text on “scrivener’s error” grounds. I therefore agree with the Ninth Circuit that respondents’ conviction cannot stand.

I could understand (though I would not approve of) a disposition which, in order to uphold this statute, departed from its text as little as possible in order to sustain its constitutionality — i e., a disposition applying the scienter requirement to the pornographic nature of the materials, but not to the age of the performers. I can neither understand nor *87approve of the disposition urged by the United States before this Court and adopted today, which not only rewrites the statute, but (1) rewrites it more radically than its constitutional survival demands, and (2) raises baseless constitutional doubts that will impede congressional enactment of a law providing greater protection for the child-victims of the pornography industry. The Court today saves a single conviction by putting in place a relatively toothless child-pornography law that Congress did not enact, and by rendering congressional strengthening of that new law more difficult. I respectfully dissent.

NIEMEYER, Circuit Judge:

Following a seven-day trial, a jury convicted Steven M. Hale of transporting stolen property in interstate commerce, knowing the goods to have been stolen; of conspiring to do the same; of making false statements in his tax returns; of failing to collect and pay employee taxes; and of obstructing justice. The district court sentenced him to 97 months’ imprisonment.

Challenging his conviction on appeal, Hale contends primarily that the evidence was insufficient to justify the district court’s decision to give the jury a willful blindness instruction and otherwise to support the jury’s finding that he knew the property at issue was stolen. He also challenges the admission of certain evidence; the content of several jury instructions; the sufficiency of the evidence as to whether an individual who worked for him qualified as an employee, as opposed to an independent contractor; and certain statements that the government made to the jury during closing argument. Finding no reversible error, we affirm.

I

A federal grand jury returned a 31-count indictment in 2013 charging Hale with one count of conspiracy from at least 2006 through March 2011 to transport stolen property in interstate commerce, in violation of 18 U.S.C. § 371; twelve counts of transporting stolen property in interstate commerce, and aiding and abetting the same, in violation of 18 U.S.C. §§ 2314 and 2; three counts of making a false statement in his income tax returns, in violation of 26 U.S.C. § 7206(1); fourteen counts of failing to collect, account for, and pay over federal taxes on an employee’s wages, in violation of 26 U.S.C. § 7202; and one count of obstruction of justice, in violation of 18 U.S.C. § 1503. At the heart of the charged conduct was the government’s allegation that, as part of an organized retail theft scheme, Hale served as “a Second-Level Fence engaged in the purchase and resale of stolen consumer products, goods and merchandise.” Specifically, the government alleged that professional shoplifters—or “boosters,” as they were called—had stolen millions of dollars worth of over-the-counter medications and health-and-beauty products from the shelves of retail stores and then sold the goods to first-level fences, who in turn sold the goods to Hale, the sole owner and operator of a warehouse in Denver, North Carolina, doing business as Double D Distributing, LLC. Hale profited, according to the government, by selling the stolen goods to at least one third-level fence.

The government’s investigation began in the fall of 2010, when detectives with the Gastonia, North Carolina Police Department learned that heroin addicts in the *163area were routinely shoplifting large quantities of goods—particularly over-the-counter medications and health-and-beauty aids—from local stores and selling them to get money to buy heroin on a day-to-day basis. These boosters often operated in teams of two to four individuals and routinely stole $1,000 to $3,000 worth of merchandise in a matter of minutes. After some of the boosters identified a woman named Bonnie Bridges as their fence, officers set up surveillance that confirmed that numerous boosters were taking their shoplifted merchandise to Bridges’ house on a daily basis. Officers then saw Bridges taking the merchandise to Hale’s warehouse, which was a plain white metal building with no identifying signs. Officers conducted further surveillance at the warehouse and eventually set up a pole camera across the street.

Between October 2010 and March 2011, their surveillance revealed that Bridges, often accompanied by her sister, regularly delivered stolen merchandise to the Double D warehouse. Bridges’ two daughters and their husbands also made routine deliveries to the warehouse, as would a man named Darryl Brock. They all delivered their merchandise in plastic garbage bags, plastic storage bins, and boxes, and one officer who participated in the surveillance testified that he never saw anyone else, including any commercial trucks, make deliveries to the warehouse. On numerous occasions between October 2010 and March 2011, Hale was present at the warehouse when these individuals were paid cash for the stolen merchandise they delivered.

On October 20, 2010, investigating agents intercepted a FedEx shipment from the Double D warehouse to Jeff Telsey at JCA Enterprises in Boca Raton, Florida. In that shipment were items that the officers had marked with an ultraviolet-light pen prior to having a cooperating booster sell the items to Bridges. The shipment also contained merchandise marked with active security sensors and stickers identifying the retail store where the item was intended to be sold and a telephone number for people to call if the item was found elsewhere. This telephone number allowed people to find out if the product was stolen or if it was legitimately in the secondary market.

Investigating agents executed a search warrant at the Double D warehouse on March 24, 2011, where they found numerous shelves containing labeled boxes of merchandise and a “cleaning station” with different products used to remove stickers, sensors, and glue. Sharon Cooke, who worked at the warehouse, was present at the beginning of the search and agreed to make two recorded telephone calls to Hale, who was in Florida at the time. She told Hale that the IRS “was around asking questions.” During one of the calls, Hale responded, “Well, you don’t know who we’re doing business with,” and then repeated, “You don’t know who the business is with, do you?,” even though Cooke did in fact know the identities of both the business’ suppliers and customers.

On the same day that agents searched the Double D warehouse, they also searched Bridges’ residence and arrested Bridges. After she was released from jail, she called Hale to accuse him of “throwing] us under the bus.” Hale responded that he “hadn’t done anything”; that Bridges and her family “shouldn’t have done him the way that [they] did”; and that “he hoped [they] didn’t turn on him.” Moreover, the same day that officers searched Hale’s warehouse, Hale called Brock, warning him that Bridges had gotten “arrested for a bunch of stolen merchandise”; “that the FBI was at his warehouse”; and that they would “probably be *164coming after [Brock] next.” The next day, Hale advised Brock to “get rid of [his] product” and to take money out of his bank accounts before they were frozen by the police. Consistent with the latter piece of advice, Hale withdrew more than $236,000 from a joint bank account that he shared with his wife, redepositing the money in a new account in her name only.

One week after the search, on April 1, 2011, Hale listed his 26-foot boat for sale with a broker in Florida, asking more than $89,000. At some later point, however, Hale took the boat’s title to a close family friend who was an auctioneer and signed the title over to his friend’s company. The Mend had the boat on his car lot for a few weeks but, at Hale’s request, moved it inside a building. Sometime after June 8, 2011, when a court issued a seizure warrant for the boat, Hale told his friend about the warrant and stated, “If anybody asks you any questions, it’s your boat.” Sometime later, Hale prepared a fraudulent promissory note reflecting that his Mend had agreed to pay $18,000 for the boat, which they backdated to May 9, 2011.

Trial on the charges commenced in April 2014 and continued before a jury for seven days. In support of its case, the government introduced surveillance videos of activity outside of Hale’s warehouse, the testimony from the investigating officers, and the testimony from several of Hale’s alleged co-conspirators, including Bridges, Brock, Cooke, and Telsey.

Bridges testified that she met Hale in 2000 when she was selling over-the-counter medicines and health-and-beauty aids at a flea market after buying them directly from drug-addicted shoplifters. At that time, Hale approached her table and indicated that he might be interested in buying her products, particularly “Tylenol, Advil, [and] stuff like that.” Thereafter, Hale gave Bridges a price list for the merchandise he wanted to buy and said he would pay cash for as much of that merchandise as she could deliver. For example, Hale would pay $4 for a 100-count bottle of Aleve, less than one-half the manufacturer’s wholesale price of $8.61, and $6 for a 14-count package of Prilosec, substantially less than the wholesale price of $10.01. Hale told Bridges that he would not accept goods that were damaged or within one year of their expiration date. Based on Hale’s price list, Bridges told the boosters what goods she wanted and how much she would pay for those goods, usually setting her price so that she made at least one dollar on each item. As to the merchandise that Hale would not accept, Bridges sold it at flea markets, where she also continued to sell other miscellaneous items.

For the first five or six years that Bridges and Hale did business together, Hale would send someone to pick up the merchandise at Bridges’ house. Eventually, however, Hale gave Bridges the address of his warehouse, and Bridges started delivering the stolen merchandise to the warehouse on an almost daily basis. Starting around 2004 or 2005, her daughters and their husbands found their own boosters to buy from in order to make money by reselling stolen merchandise to Hale.

At times, the drug-addicted shoplifters Bridges bought from would get arrested, and, when Hale or Cooke would ask her why she was not bringing in as much product, she would respond that her “people [were] on vacation.” Bridges testified that Hale would not “ask any more questions about that.” At no point during the decade that Bridges sold Halé stolen merchandise did Hale ever ask her for proof that the products she was selling to him were not stolen; nor did he ever ask about the retailer stickers, which were on at least 20% of the items that she sold to him.

*165Brock testified that he first met Hale in 2000, when his father introduced them. At the time, Brock and his father owned a fireworks store, but Brock was also buying over-the-counter medicine and health-and-beauty aids from drug-addicted boosters and selling the stolen merchandise at flea markets. Brock’s father had previously sold stolen merchandise, and he told Brock that Hale “was okay and ... was buying ... the health and beauty aid stuff which [Brock] had.” Hale subsequently provided Brock with a price sheet and started buying goods from him. In 2002, Brock was arrested after law enforcement officers executed a search warrant on a trailer located behind his fireworks store and recovered counterfeit items and 20 boxes of stolen merchandise. While the charges were pending, Brock asked Hale if “he could help [him] out,” and Hale gave Brock a fraudulent “receipt for 20 banana boxes and a bunch of receipts from a Walmart,” leading police to drop the stolen property charge.

For several years after his arrest, Brock stopped dealing in stolen merchandise, but he got back into the business after meeting Bridges at a flea market in the spring of 2010. When he approached her booth, he could almost immediately tell, from “being in that business before,” that her products were stolen goods. Brock started buying goods from Bridges regularly and eventually started selling some of those goods to Hale.

In late 2010, Hale and Brock had conversations about going into business together, with the idea that Brock would operate a warehouse in South Carolina. During these conversations, Hale told Brock that he made $18,000 in “a bad month” and that he was getting about 90% of his merchandise from Bridges and the members of her family. Hale advised Brock that he should always pay his suppliers in cash because he would “have to report it if [he] put it on the books,” and he also told Brock to “make sure that [he] [got] everybody on tape saying that they don’t deal in stolen merchandise,” even giving Brock a voice recording pen device to be used for that purpose. He also gave Brock a device that could be used to detect if someone was wearing a wire.

Cooke testified that she first started working for Hale in 2001 when her sister-in-law, who was already working for him, needed help. Cooke and her sister-in-law worked together on a full-time basis until her sister-in-law left in 2006, and, from that point forward, Cooke essentially ran the warehouse’s daily operations, although Hale had an office there and was present about one-half the time. Bridges and the other suppliers called Cooke about an hour before they arrived at the warehouse with an estimate of how many items they were bringing, so that Bridges could go to the bank and withdraw cash from Hale’s business account. Cooke then received the merchandise as it was delivered and paid the suppliers cash for it, often in the thousands of dollars. Cooke maintained a financial ledger of the transactions—on which Hale also made entries—that identified the suppliers, at first by codenames (such as “FW” for “fireworks,” the codename for Brock, and “BG” for “Bonnie Gastonia,” the codename for Bridges, who lived in Gastonia, North Carolina) and later by symbols (such as a star for one of Bridges’ daughters and an asterisk for the other). After the suppliers left, Cooke—sometimes assisted by one of her family members— unpacked the merchandise, checked it for damage and shelf life, “cleaned” it of any retailer’s stickers or sensors, and sorted it. Once the merchandise was cleaned and categorized, Cooke repackaged it and sent Hale a list of the inventory that was ready to ship. After Hale negotiated a deal with one of his purchasers, Cooke put the boxes *166of cleaned merchandise on pallets for shipping and prepared bills of lading.

Initially, Hale paid Cooke $500 in cash every two weeks for her work, but he eventually increased her pay to $20 in cash for every box of goods that she processed. Cooke withdrew cash from Hale’s bank account to pay herself and also to buy all of the warehouse’s supplies. While Cooke decided what hours to work, she nonetheless worked full time and exclusively for Hale for approximately a decade. With respect to Cooke’s work, Hale reported having paid around $50,000 to “Sharon’s Packaging” for each tax year from 2006 through 2008, but he never issued Cooke either a W-2 or a 1099 tax form, nor did he withhold any of her income for taxes.

Jeff Telsey, who had been the owner and operator of JCA Enterprises, testified that he regularly bought stolen goods from Hale in order to resell them to retailers. When a shipment arrived from Hale, his operation inspected each item for damage, expiration dates, and stickers identifying the store where the item was supposed to be sold. He was concerned about such stickers—which he sometimes found on items in Hale’s shipments—because any retailer receiving such products “would know that this was obviously stolen property.” Telsey never called the phone numbers printed on the stickers because he already “knew [he] was dealing in stolen property.” Telsey testified that he liked doing business with Hale because Hale sent him large quantities of the types of items that were the easiest for him to resell and Hale’s prices were generally 10-15% lower than Telsey’s other suppliers. When Telsey spoke with any of his suppliers, including Hale, they never used the word “stolen,” but Telsey “took it for granted that everybody knew-—had to know it was stolen” and that anyone with “half a brain in their head ... would know it was stolen.” Hale stopped selling to Tel-sey at some point in 2010, telling Cooke that Telsey was being investigated for dealing in counterfeit razor blades and indicating that, as a result, they would “probably be investigated for [dealing in] stolen product[s].”

Representatives from Bayer Health Care and Procter & Gamble—companies that manufactured some of the products at issue—testified that there was no legitimate way to buy their company’s products for prices as low as the ones Hale charged. Similarly, the manager of CVS’s organized retail crime unit testified that there was no lawful way for “loose goods with different expiration dates from different stores with stickers on them” to come into the market.

After the government rested its case, Hale made a motion for a judgment of acquittal on all counts, and the district court denied the motion. Hale then presented testimony from several witnesses— some of whom testified about the existence of a legitimate secondary market in over-the-counter medicines and health-and-beauty aids. He then took the stand to testify in his own defense.

Immediately prior to that point, Hale’s counsel requested that the court preclude the government from asking Hale about a prosecution that was brought against Hale and more than ten other defendants for conspiring during the period from 1992 to 1994 to transport or receive stolen goods— namely, over-the-counter drugs and health-and-beauty aids. On appeal of the convictions in that case, this court overturned most of the convictions, including Hale’s, on the ground that the evidence did not support that the defendants had been willfully blind to the fact that they were dealing in stolen property. See United States v. Ebert, 178 F.3d 1287, 1999 WL 261590, at *1 (4th Cir. May 8, 1999) (unpublished table decision). The government *167agreed not to ask Hale about these previous charges and the previous trial, but it argued that it should be able to cross-examine him about his business dealings at that time with Don Thomas, the first-level fence at the heart of that case. The court agreed, instructing the government to avoid referencing the fact that Hale was previously charged but ruling that “if he gained knowledge at that time and then ... used that to be willfully blind in an effort to pull this off, then ... that needs to come out.” Hale’s counsel agreed that such a question was “fair game.”

Hale testified that he became involved in the secondary market business in 1992, when he bought $20,000 worth of merchandise at flea markets and gradually started identifying buyers. He stated that his business model involved dealing in “depressed product,” meaning product that is “not in factory boxes” and does not “look factory new,” and that he had “bought [product] from every known source that you can buy from.” He testified that in his ten years of dealing with Bonnie Bridges, he had never heard “one word ... spoken about her being a fence,” adding that “nobody can run a booster operation ten years and deal with crackheads” without getting caught; that Bridges was “probably the [most] trusted buyer [he] had”; and that he “never ever thought she was selling stolen goods.” He later added that he checked her criminal background and also verified that she was at flea markets when she said she was going to be.

On cross examination, Hale acknowledged that before he met Bridges, he had been involved in the secondary market; that one of the people from whom he had bought over-the-counter medicines and health-and-beauty aids was Don Thomas; and that he later learned that Thomas had been getting his goods from boosters and fences. He acknowledged that when he got back in the business in 2001, he knew that the presence of stolen property in the market was “a great risk.” He also admitted that he had previously done business “with independent fences,” but denied walking out of the room “whenever boosters would show up at those fences’ places.” In an attempt to refresh Hale’s recollection, the government asked Hale to read silently from a document that was not identified for the jury but that was a copy of this court’s unpublished opinion in Ebert. After reading the passage, Hale maintained that somebody had falsely said that he had purposefully left the room when boosters were present.

At the conclusion of all the evidence, Hale renewed his motion for a judgment of acquittal, and the district court again denied the motion.

In its closing argument, the government referred to evidence indicating that the boosters who stole merchandise and sold it to Bridges were drug addicts, and it repeatedly emphasized, without objection, that most of the money that Hale paid Bridges ultimately went to the local drug dealers who were supplying the boosters with heroin and cocaine.

Before the district court instructed the jury, Hale objected to the court’s decision to provide the jury with a willful blindness instruction. Hale’s counsel allowed, however, that if the court was going to give such an instruction, “we don’t have any problem with the proposed instruction of the court.”

The jury found Hale guilty on all counts on April 22, 2014, and the district court sentenced Hale to 97 months’ imprisonment. From the judgment entered against him dated October 13, 2015, as amended February 16, 2016, Hale filed this appeal.

II

For his main argument on appeal, Hale contends that the evidence was insufficient *168to support the district court’s decision to provide the jury with a willful blindness instruction and otherwise to support the jury’s finding that he knew the property was stolen. Hale also challenges the form of the willful blindness instruction that the court gave.

A

We begin with Hale’s contention that the district court abused its discretion by instructing the jury on willful blindness in light of the evidence presented.

For a jury to convict Hale of transporting stolen goods in interstate commerce and conspiring to do so, the government was required to prove that Hale knew that the goods he was transporting were stolen. See 18 U.S.C. § 2314. While the government could, of course, meet its burden by proving that Hale actually knew the goods were stolen, it could also satisfy the knowledge element by presenting sufficient evidence that Hale had made himself deliberately ignorant of the fact that the goods were stolen, which evidence would justify the court’s instructing the jury on “willful blindness.” The first question before us, therefore, is whether the government presented sufficient evidence of Hale’s deliberate ignorance to justify the district court’s willful blindness instruction.

The principle that willful blindness will satisfy a knowledge element in criminal law is premised on the idea that defendants should not be permitted to “escape the reach” of criminal statutes that require proof that a defendant acted knowingly or willfully “by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.” Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766, 131 S.Ct. 2060, 179 L.Ed.2d 1167 (2011); see also United States v. Jinwright, 683 F.3d 471, 478 (4th Cir. 2012) (“To allow the most clever, inventive, and sophisticated wrongdoers to hide behind a constant and conscious purpose of avoiding knowledge of criminal misconduct would be an injustice in its own right”). But, to ensure that the willful blindness doctrine retains “an appropriately limited scope that surpasses recklessness and negligence,” its application has “two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.” Global-Tech Appliances, 563 U.S. at 769, 131 S.Ct. 2060.

To be sure, “requests for willful blindness instructions should be handled with caution,” Jinwright, 683 F.3d at 478, because of the risk that the instruction could mislead a jury into believing that it could convict the defendant for his mere negligence or recklessness with respect to a key fact making his conduct illegal, see United States v. Eighty, 616 F.3d 321, 378 (4th Cir. 2010). Nonetheless, it is appropriate to instruct the jury on willful blindness “when the defendant claims lack of guilty knowledge in the face of evidence supporting an inference of deliberate ignorance.” Id. at 377-78; see also United States v. Ali, 735 F.3d 176, 187-88 (4th Cir. 2013).

In the record before us, there was ample evidence (both direct and circumstantial) from which to find first that Hale “subjectively believe[d] that there [was] a high probability” that the goods he was buying and selling were stolen. Global-Tech Appliances, 563 U.S. at 769, 131 S.Ct. 2060. In his testimony at trial, he acknowledged that he knew from prior experience that there was a “very big risk” that people selling over-the-counter medicine and health-and-beauty aids at flea markets could be first-level fences who had bought *169the goods at deep discounts from professional shoplifters. The jury could also have found that Hale must have thought that it was highly likely that the only way that Bridges could be supplying him with trash bags and plastic storage bins full of assorted loose goods at prices well below wholesale on an almost daily basis was for her to be running a large-scale booster operation. Hale’s subjective awareness was also indicated by the evidence of his conduct in the aftermath of the search of his warehouse, when he attempted to coach Cooke into denying that she knew with whom he was doing business; told Bridges not to “turn on him”; and warned Brock to “get rid of [his] product” because the police would likely come after him next.

The record also contains ample evidence from which to find that Hale took deliberate actions to avoid confirming that the goods were in fact stolen. For example, the government showed that Hale was careful never to ask Bridges about who “her people” were or why so many of her goods were marked with stickers indicating that they belonged on the shelves of local stores. Instead, he had such stickers removed. Despite knowing from his earlier dealings of the “very big risk” that individuals selling these types of goods could be fences, he elected not to require his suppliers to ever provide receipts or other documentation showing that they were obtaining their goods through legitimate channels, and he structured his operation in a manner that minimized his direct contact with them.

In light of this and other evidence, we conclude that the district court did not abuse its discretion by providing the jury with a willful blindness instruction. See United States v. Ruhe, 191 F.3d 376, 384-85 (4th Cir. 1999) (holding that the district court did not abuse its discretion by giving a willful blindness instruction where the record included evidence that the defendant, charged with transporting stolen airplane parts, accepted the parts “without the normal documentation” and ignored that many of the parts were marked with red tags from the manufacturer indicating that they were “to be scrapped”).

In addition to the evidence showing willful blindness to satisfy the knowledge element of the offense, the government also presented evidence that Hale actually knew the goods in question were stolen. For example, the government presented (1) testimony from Telsey that it was obvious that the merchandise he was purchasing from Hale was stolen; (2) evidence that Hale tried to disguise his suppliers’ identities by instructing Cooke to use code-names and symbols in the company’s financial ledger; and (3) testimony from Brock that when he and Hale were contemplating forming a partnership, Hale gave him a device to detect if someone was wearing a wire, as well as a voice recording pen devise that he could use to “get everybody on tape saying that they don’t deal in stolen merchandise.”

Whether by evidence of willful blindness or by evidence of actual knowledge, the government offered sufficient evidence from which the jury could find beyond a reasonable doubt that Hale knew that the goods in which he was dealing were stolen.

B

Hale also challenges the content of the willful blindness instruction that the district court gave, focusing in particular on a single sentence of the instruction in which the district court stated, “Willful blindness would only satisfy the knowledge element of these offenses if you, the jury, find the evidence supports an inference that the defendant was subjectively aware of the high probability that the goods he was buying were stolen goods, but purposefully *170avoided learning the facts pointing to the fact he was buying stolen goods.” (Emphasis added for the challenged portions). Hale contends that by “failing] to define ‘subjectively,’ ” the instruction allowed “the jury to conclude that ‘subjective belief could be proved based on facts that the defendant or a reasonable person should have known, without consideration of facts actually known by the defendant.” He also asserts that the instruction’s “facts pointing to the fact” language impermissibly allowed the jury to find the knowledge element based upon “a circumstantial chain of events.”

As a threshold matter, the government asserts that Hale waived any challenge to thé content of the district court’s willful blindness instruction, noting that after the district court provided the parties with a copy of the instruction, Hale’s counsel approved of its form. In response, Hale asserts:

Hale did not waive [an] objection to the content of the willful blindness instruction provided by the district court. He specifically objected to any willful blindness instruction at all. At most, when pressed by the court, Hale’s counsel indicated that although he objected to the instruction proffered, if one has to be given then it was “not a bad one.” He did not request or consent to any particular language in a willful blindness instruction.

The record, however, does not support Hale’s position. After the court gave counsel a copy of the instruction that it intended to give to the jury, the following dialogue took place:

Counsel for Hale: Your Honor, I can tell the Court, aside—obviously, our position is that we will object to the willful blindness instruction as we stated; but if the court is going to give one, we don’t have any problem with the proposed instruction of the court.

The Court: Okay.

AUSA: The government has no objection, Your Honor. It accurately states the law.

The Court: Then that’s the one—then I will give that instruction.

(Emphasis added). Again, a day later during the trial, Hale’s counsel reaffirmed his position:

The Court: The [instructions] to look at are the willful blindness one which I am going to give and I think we’ve already covered that one yesterday. The defense objects to any willful blindness; but if we had to give one, they don’t think this one is a bad one. Is that right, Mr. Tin? Counsel for Hale: That’s our position Your Honor.

When counsel states affirmatively to the court that he has no problem with the form of the proposed instruction, he waives any objection he has to the form. Had Hale objected to the instruction’s language when the district court specifically asked for his views, the court could have amended the instruction. But with the express reassurance that Hale had no problem as to the form, the court gave the instruction to the jury, reserving only Hale’s objection to the fact that jt was given at all. It is therefore clear that Hale waived any objection to the form of the willful blindness instruction.

Nonetheless, were we to consider Hale’s newly asserted objection, we would readily conclude that the district court did not err in giving the form of willful blindness instruction that it gave to the jury. Indeed, much of the comprehensive instruction consisted of direct quotes from the Supreme Court’s synthesis of the willful blindness doctrine in Global-Tech Appliances and our subsequent decision in *171 Jinwright, where we upheld a willful blindness instruction as consistent with Global-Tech Appliances. See Jinwright, 683 F.3d at 479-80. We find no merit to Hale’s complaint that the district court failed to define the word “subjectively,” as the word is one of ordinary English and the context of its use clearly signaled to the jury that it was required to focus on whether Hale himself believed that the goods were likely stolen property. Moreover, the single “facts pointing to the fact” phrase, while not the most artful, did not render the instruction erroneous, especially when taken as a whole. The district court repeatedly “emphasize[d] that the government must prove more than the defendant was reckless or negligent,” taking care to correctly explain those terms. And it concluded its instruction by using key language from Global-Tech Appliances to explain that “[t]o find beyond a reasonable doubt the defendant was willfully blind, you first have to find the defendant subjectively believed there was a high probability that he was buying stolen goods and, two, that the defendant took deliberate actions to avoid learning the goods he was buying were stolen.” Thus, even had Hale not waived his objection to the form of the instruction, we would conclude that the district court’s willful blindness instruction, considered as a whole, “accurately and fairly state[d] the controlling law.” United States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996).

Ill

Hale raises several other challenges, each of which merits only a brief discussion.

A

Hale challenges the district court’s admission of three categories of evidence, none of which he objected to at trial. Because he failed to object, our review is limited to plain error. See Fed. R. Crim. P. 52(b).

First, Hale contends that “evidence that Bridges’ boosters were drug addicted was not relevant” and, in any event, was more prejudicial than probative. He maintains that evidence regarding the boosters’ “drug problems was an appeal to the emotions of the jurors,” meant to “generate anger and bad feelings in the jurors against” him.

We conclude, however, that the district' court did not err in admitting this evidence. That the boosters were desperate to feed very expensive drug habits was critical to explaining why there was a network of people willing to shoplift thousands of dollars’ worth of merchandise and sell it quickly for very cheap prices. The boosters’ drug addition was thus at the heart of how this retail theft scheme was able to function, and the district court did not abuse its discretion—let alone commit plain error—by admitting this type of evidence.

Second, Hale argues that the evidence relating to his prior acquittal for conspiracy to deal in stolen goods “was not relevant, was more prejudicial than probative[,] and was prohibited bad character evidence.” He argues, “Whether Thomas or others previously sold stolen goods to Hale did not make any more or less probable the question of whether he knew Bridges, who had no connection whatsoever to them, also sold stolen goods to him.” In addition, he complains that “the government used a bound Federal Court of Appeals reporter volume,” thus showing the jury that there was “a case book with a case of the defendant in it.” At bottom, according to Hale, “The entire line of questioning served only to inform the jury, impermissibly, that Hale had a prior case *172involving fences” and was therefore “propensity evidence” that should have been excluded under Federal Rule of Evidence 404(b).

Hale not only failed to object to this evidence when it was presented at trial, he expressly agreed that “we don’t have a problem with” the government asking Hale on cross-examination whether, before he met Bridges, he had learned that one of his previous suppliers had been buying stolen goods from heroin addicts. Accordingly, we conclude that he waived his objection. Moreover, contrary to his claims, there was no “bound Federal Court of Appeals reporter volume,” as the Ebert decision was unpublished and not even reported in the Federal Appendix. Nothing in the government’s questions or in its act of handing Hale a printed copy of the opinion to refresh his recollection informed the jury that there had previously been a case against Hale involving fences.

Third and finally, Hale challenges the admission of Brock’s testimony that he understood from his father that Hale dealt in stolen goods, arguing that this evidence constituted hearsay and prohibited bad character evidence. But the only out-of-court statement admitted was Brock’s testimony that he first learned of Hale when his father told him that Hale “was okay and ... was buying HBA, which is the health and beauty aid stuff which I had.” Brock added that he understood his father’s statement to mean “[t]hat you could deal with him as far as on that level”—i.e., the stolen-merchandise level—and that he generally trusted Hale because his father “was the intro.” The out-of-court statement by Brock’s father that Hale was “okay” was thus properly admitted not for the truth of the matter asserted but to show why Brock thought he could sell stolen goods to Hale. Accordingly, there is' simply no basis for Hale to argue that the district court was required, sua sponte, to exclude this brief explanation by Brock as to his own state of mind.

B

Hale also challenges the form of two other instructions given to the jury, although he did not object to them at trial. Our review of these challenges, therefore, is again limited to plain error.

Hale contends first that the district court committed reversible error by instructing the jury to give special scrutiny to Hale’s testimony, arguing that he was “prejudiced by the court’s directive to scrutinize his testimony beyond other interested witnesses because the court implied [his] testimony was false.” But, as the-government notes, the district court’s instruction below did no more than equate Hale with any other interested witness. Specifically, the court instructed the jury first that “[i]f you find a witness is interested in your verdict, it is your duty to scrutinize his or her testimony closely. But after you have done so, and if you find he or she is telling the truth in whole or in part, you will give that testimony the same weight you would of a disinterested witness.” It then explained further:

The defendant Steve Hale took the witness stand and testified on his own behalf. Defendants are interested witnesses. You will scrutinize his evidence in the light of his interest that he has in the case. If after scrutinizing the testimony, you find he has told the truth, you should give his testimony the same weight as the other witnesses in the case.

Contrary to Hale’s argument, the district court did not “impl[y] [that] Hale’s testimony was inherently unbelievable” but simply noted that defendants who testify on their own behalf, like Hale, are interest*173ed witnesses whose testimony should be scrutinized like any other interested witness. This instruction did not constitute plain error.

Hale also contends that the district court erred in instructing the jury on conspiracy law. We conclude, however, that the court accurately instructed the jury that, “once a conspiracy is established, even a slight connection between the defendant and the conspiracy could be sufficient to include him in the plan.” See United States v. Strickland, 245 F.3d 868, 385 (4th Cir. 2001) (“Once a conspiracy has been proved, the evidence need only establish a slight connection between any given defendant and the conspiracy to support conviction”). Hale nonetheless contends that because the district court “did not also tell the jury that the ‘slight connection’ had to be proved beyond a reasonable doubt,” the “jury could have easily believed that the connection element for the conspiracy charged could be proved through just slight evidence of a connection.” This argument, however, overlooks the fact that the district court repeatedly made clear throughout its instructions that the government had to prove each element beyond a reasonable doubt.

We find no error in the district court’s giving these instructions.

C

Hale next contends that the government failed to present sufficient evidence to allow the jury to find beyond a reasonable doubt that Cooke was his employee, as opposed to an independent contractor, as necessary for his convictions on 14 counts of failing to collect and pay over employee taxes, in violation of 26 U.S.C. § 7202. Hale focuses in particular on evidence (1) that Cooke testified that she was ‘self-employed’; (2) that she had “sole discretion over when and how long she worked”; (3) that Hale paid Cooke by the box; and (4) that Cooke exercised considerable discretion, including whether to hire additional assistants. While the jury might have been able to find from this evidence that Cooke was an independent contractor, Hale overlooks the ample evidence supporting the jury’s finding that she was an employee for purposes of the tax reporting requirements. This additional evidence showed that Cooke worked exclusively and full time at Hale’s warehouse for approximately a decade using equipment that Hale supplied and following Hale’s directions to complete tasks that were essential to the operation of his business. With such evidence, we have no difficulty concluding that the jury’s finding that Cooke qualified as an employee of Hale’s business was supported by substantial evidence.

D

Finally, Hale contends that the prosecutor engaged in misconduct during his closing argument, denying Hale his right to a fair trial. Specifically, he contends that the government’s closing argument “focused on how Hale denigrated the community by feeding individuals’ addiction,” indirectly lining the pockets of area drug dealers “while living an opulent lifestyle elsewhere.” Hale argues that this “blatant appeal to passions and prejudices was improper” and “deprive[d] him of a fair trial.”

Again, because Hale did not object to the argument at trial, our review is limited by the plain error standard, and we readily conclude that the district court did not plainly err by failing, sua sponte, to issue a curative instruction or to declare a mistrial upon hearing the government’s closing argument. The prosecutor’s statements that Hale reaped profits by engaging in conduct that had the effect of fueling illicit drug trafficking was an accurate summary *174of the evidence, not prosecutorial misconduct. And, in any event, in light of the strength of the government’s case, the remarks certainly did not so prejudice Hale’s substantial rights that he was denied a fair trial.

Accordingly, we affirm the judgment of the district court.

AFFIRMED

Mr. Chief Justice Taft

delivered the opinion of the court.

This is a writ of error to the District Court under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246. Defendants in error were indicted for a violation of the Narcotic Act of December 17, 1914, c. 1, 38 Stat. 785. The indictment charged them with unlawfully selling to another a certain amount of a derivative of opium and a certain amount of a derivative of coca leaves, not in pursuance of any written order on a form issued in blank for that purpose by the Commissioner of Internal Revenue, contrary to the provisions of § 2 of the act. The defendants demurred to the indictment on the ground that it failed to charge that they had sold the inhibited drugs knowing them to be such. The statute does not make such knowledge an element of the offense. The District Court sustained the demurrer and quashed the indictment. The correctness of this ruling is the question before us.

While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did *252not in terms include it (Reg. v. Sleep, 8 Cox C. C. 472), there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57, 69, 70, in which it was held that in the prohibition or punishment of particular acts, the State may in the maintenance of a public policy provide " that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.” Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of .the crimes as in cases of mala in se. Commonwealth v. Mixer, 207 Mass. 141; Commonwealth v. Smith, 166 Mass. 370; Commonwealth v. Hallett, 103 Mass. 452; People v. Kibler, 106 N. Y. 321; State v. Kinkead, 57 Conn. 173; McCutcheon v. People, 69 Ill. 601; State v. Thompson, 74 Ia. 119; United States v. Leathers, 6 Sawy. 17; United States v. Thomson, 12 Fed 245; United States v. Mayfield, 177 Fed. 765; United States v. 36 Bottles of Gin, 210 Fed. 271; Feeley v. United States, 236 Fed. 903; Voves v. United States, 249 Fed. 191. So, too, in the collection of taxes, the importance to the public of their collection leads the legislature to impose on the taxpayer the burden of finding out the facts upon which his liability to pay depends and meeting it at the peril of punishment. Regina v. Woodrow, 15 M. & W. 404; Bruhn v. Rex, [1909] A. C. 317. Again where one deals with others and his mere negligence may be dangerous to them, as in selling diseased food or poison, the *253policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells. Hobbs v. Winchester Corporation, [1910] 2 K. B. 471, 483.

The question before us, therefore, is one of the construction of the statute and of inference of the intent of Congress. The Narcotic Act has been held by this court to be a taxing act with the incidental purpose of minimizing the spread of addiction to the use of poisonous and demoralizing drugs. United States v. Doremus, 249 U. S. 86, 94; United States v. Jin Fuey Moy, 241 U. S. 394, 402.

Section 2 of the Narcotic Act, 38 Stat. 786, we give in part in the margin.1 It is very evident from a reading of *254it that the emphasis, of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof of knowledge contributed to this conclusion. We think the demurrer to the indictment should have been overruled.

Judgment reversed.

Mr. Justice Clarke took no part in this decision.

OPINION

GILBERT, Justice.

This case presents the question of whether knowledge is an element of the crime under the open bottle law when the driver is the sole occupant of a motor vehicle. Appellant Steven Mark Loge was cited on September 2, 1997, for a violation of Minn.Stat. § 169.122, subd. 8 (1998), which makes it unlawful for the driver of a motor vehicle, when the owner is not present, “to keep or allow to be kept in a motor vehicle when such vehicle is upon the public highway any bottle or receptacle containing intoxicating liquors or 8.2 percent malt liquors which has been opened.” Violation of the statute is a misdemeanor. See Minn.Stat. § 169.122, subd. 4 (1998). After a bench trial, the district court held that subdivision 3 imposed “absolute liability” on the driver/owner. Loge appealed. The court of appeals affirmed the conviction, holding that proof of knowledge that the open container was in the motor vehicle was not required. See State v. Loge, 589 N.W.2d 491, 494 (Minn.App.1999). We affirm.

On September 2, 1997, Loge borrowed his father’s pick-up truck to go to his evening job. Driving alone on his way home from work, he was stopped by two Albert Lea city police officers on County Road 18 at approximately 8:15 p.m. because he appeared to be speeding. Loge got out of his truck and stood by the driver’s side door. While one officer was talking with Loge, the second officer, who was standing by the passenger side of the truck, observed a bottle, which he believed to be a beer bottle, sticking partially out of a brown paper bag underneath the passenger’s side of the seat. He retrieved that bottle, which was open and had foam on the inside. He searched the rest of the truck and found one full, unopened can of beer and one empty beer can. After the second officer found the beer bottle, the first officer asked Loge if he had been drinking. Loge stated that he had two beers while working and was on his way home. Loge passed all standard field sobriety tests. The officers gave Loge citations for having no proof of insurance and for a violation of the open bottle statute but not for speeding. The no proof of insurance charge was later dismissed. Loge did not raise a probable cause challenge to either the stop or the officer’s actions in observing the open bottle on the floor of the truck.

The trial on the open bottle charge took place on January 29, 1998. Loge testified that the bottle was not his, he did not know it was in the truck and had said that to one of the officers. That officer did not remember any such statements. At the close of the testimony, the trial court requested memoranda from Loge’s counsel and the city attorney on the question of whether knowledge is an element of subdivision 3 of the open bottle statute. Both attorneys came to the same legal conclusion that proof of knowledge was required. The trial court found that one of the police officers “observed the neck of the bottle, which was wrapped in a brown paper sack, under the pickup’s seat of the truck being operated by defendant.” Based on an analysis of section 169.122 as a whole, the trial court held that subdivision 3 creates “absolute liability” on a driver/owner to “inspect and determine * * * whether there are any containers” in the motor vehicle in violation of the open bottle law and found Loge guilty. Loge was sen*154tenced to five days in jail, execution stayed, placed on probation for one year, and fined $150 plus costs of $32.50.

Loge appealed the verdict. The city attorney did not file a respondent’s brief but sent a letter to the Clerk of Appellate Court stating that he “coneur[red] with the reasoning and rationale in the Appellant’s brief and therefore there [was] no reason for the State of Minnesota to file a Respondent’s brief.” In a published opinion, the court of appeals affirmed the decision of the trial court finding that the evidence, which establishes that one of the officers saw an open bottle containing intoxicating liquor underneath the passenger seat of the truck Loge was driving on a public highway, was sufficient to support Loge’s conviction. See Loge, 589 N.W.2d at 494. The court of appeals held that proof of knowledge that the bottle was in the truck is not required to sustain a conviction. See id.

Loge’s petition for further review was granted. The Attorney -General then assumed responsibility for this case and filed a respondent’s brief in which the Attorney General argues, contrary to the previous position of the state, that there is no knowledge requirement under subdivision 3.

Loge is seeking reversal of his conviction because, he argues, the trial court and court of appeals erroneously interpreted subdivision 3 of the open bottle statute1 not to require proof of knowledge. Loge argues that the words “to keep or allow to be kept” implicitly and unambiguously require a defendant to have knowledge of the open container in the motor vehicle in order for criminal liability to attach. He argues that “keep” means “to maintain, or cause to stay or continue, in a specified condition, position, etc.” Loge argues that that definition suggests that a person must purposely choose to continue possession. Further, Loge argues that the word “allow” from the phrase “allow to be kept” means “to permit; to grant license to,” suggesting awareness at the minimum.

The state argues that the language of subdivision 3 creates a strict liability offense. The statute was enacted in 1959 and subdivision 3 has not had any substantive change since its enactment.2 The *155state relies heavily on the presumption that the legislature intends the statute as a whole to be effective and certain, with no surplusage. See Minn.Stat. §§ 645.16, 645.17(2) (1998); State v. Orsello, 554 N.W.2d 70, 75-76 (Minn.1996). The state argues that subdivision 3’s “keep or allow to be kept” language must mean more than mere possession of alcohol because owners/drivers are already subject to liability under subdivision 2 for mere possession, which applies to all persons in the motor vehicle. The state further argues that to read subdivision 3 as requiring conscious or continuing possession would make it mere surplusage.

Statutory construction is a legal determination reviewed by this court under a de novo standard. See In re A.A.E., 590 N.W.2d 773, 776 (Minn.1999). An analysis of a statute must begin with a careful and close examination of the statutory language. See Orsello, 554 N.W.2d at 74. We undertake such a review to ascertain and effectuate legislative intent. See Minn.Stat. § 645.16. If the meaning of the statute is “clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Id.

Except for search and seizure issues, this is the first time we have reviewed this statute since its enactment 40 years ago. We are asked only to interpret this statute under the facts presented. Although this statute addresses two potential, alternate situations involving a driver of “any private motor vehicle * * * when such vehicle is upon the public highway,” only one is presented under these facts. Minn.Stat. § 169.122, subd. 3. The statute establishes liability for such a driver when that driver “keep[s] or allow[s] to be kept” any open bottle containing intoxicating liquor within the area normally occupied by the driver and passengers. Id. (emphasis added). These two alternate concepts are separated by the disjunctive “or,” not “and.” Unlike the use of the word “and,” “or” signifies the distinction between two factual situations. We have long held that in the absence of some ambiguity surrounding the legislature’s use of the word “or,” we will read it in the disjunctive and require that only one of the possible factual situations be present in order for the statute to be satisfied. See, e.g., Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 385 (Minn.1999); Aberle v. Faribault Fire Dept. Relief Ass’n, 230 Minn. 353, 360, 41 N.W.2d 813, 817 (1950) (“The word ‘or’ is a disjunctive and ordinarily refers to different things as alternatives.”). Accordingly, we limit our opinion to the words “to keep.”3 Minn.Stat. § 169.122, subd. 3.

Further, even though this was a court trial, we note that similar to the statute, CRIMJIG 29.30 also recognizes the significance of the use of the disjunctive “or” and provides for separate, alternate instructions on “(kept) (allowed to be kept).” See 10a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, CRIMJIG 29.30 (4th ed.1999); see also 10 Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, Explanatory Note (4th ed. 1999) (“[PJarentheses indicate options for factual variations * * * .”). In prior versions of the jury instructions, the comment noted that the trial judges are divided as to whether knowledge is required under the statute. See 10a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, M-JIG 3.17 Comment (1989 ed.). The comment noted that “[s]inee the [question of proof of knowledge] has not been ruled upon by the Minnesota appellate courts, the trial judge should include or omit the bracketed portion according to his or her own reading of the statute.” Id. Thus, the *156instruction included then, as it does now, an optional portion in brackets which reads “[This means that defendant knew the (bottle) (receptacle) was in the vehicle.].” 10a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, M-JIG 3.17 (1989 ed.); see also 10a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, CRIMJIG 29.30 (4th ed. 1999) (“[Brackets indicate optional element choices, depending on the portion of the statute that has been charged.”). We take this opportunity to review Minn. Stat. § 169.122, subd. 3 as it relates to the facts in the record where there was only a sole occupant in the vehicle.

We are guided in our interpretation of section 169.122, subdivision 3 by the statutory presumption that the legislature intends an entire statute to be effective and certain. See Minn.Stat. § 645.17(2). We must therefore look to all subdivisions of section 169.122 together to help us determine whether the legislature intended to impose liability under subdivision 3 on a driver/owner without proof of knowledge. Subdivision 1 prohibits the consumption of alcohol by any person in a motor vehicle on a public highway. See Minn.Stat. § 169.122, subd. 1 (1998). Subdivision 2 prohibits the actual possession of, or conscious exercise of dominion and control over, an open bottle of alcohol by any person in the vehicle. See id. § 169.122, subd. 2 (1998). In contrast, subdivision 3 provides that the owner, or if the owner is not present, the driver is responsible for ensuring that no open bottles of alcohol are present in a vehicle on a public highway, regardless of consumption, actual possession or conscious exercise of dominion and control. See id. § 169.122, subd. 3. Consumption, possession and presence of an open container of alcohol in a motor vehicle are each separate risks. The legislature separately addressed each risk in section 169.122, subdivisions 1 through 3 in an effort to promote highway safety by decreasing the opportunity for alcohol consumption and drunken driving that an open container of alcohol anywhere in the vehicle creates. It is clear from reading the statute as a whole that the legislature intended to categorically prohibit open bottles of alcohol in a motor vehicle on a public road except under the limited circumstances that the legislature expressly addressed and carved out.4 Thus, we find no ambiguity in the legislature’s use of the word “keep.”

We are mindful of Loge’s argument that, as a criminal statute, section 169.122 must be strictly construed. See State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993). Where we have found a statute ambiguous, we have said, “if criminal liability, particularly gross misdemeanor or felony liability, is to be imposed for conduct unaccompanied by fault, the legislative intent to do so should be clear.” State v. Neisen, 415 N.W.2d 326, 329 (Minn.1987). However, we have held that the rule of strict construction does not require this court to assign the narrowest possible interpretation to the statute or to adopt a construction that would render the statute or one of its subdivisions meaningless. See Zacher, 504 N.W.2d at 473. Furthermore, where, as here, we have interpreted the statute and find no ambiguity, “the so-called ‘rule of lenity,’ which holds that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity towards the defendant,” has no application. Orsello, 554 N.W.2d at 74 (emphasis added) (citations omitted). As we did in Gullings v. State Bd. of Dental Examiners, 200 Minn. 115, 119, 273 N.W. 703, 705 (1937), we adhere to the rule of strict construction for a penal statute but hold that where the language of the stat*157ute is clear, the court is bound to give effect thereto.

In delineating the elements of the crime, we have also held that the legislature is entitled to consider what it deems “expedient and best suited to the prevention of crime and disorder.” State v. Morse, 281 Minn. 378, 382, 161 N.W.2d 699, 702 (1968) (citations omitted). The Supreme Court has addressed the dichotomy between the opportunity to discover and the difficulty of proof in arranging a statutory scheme establishing criminal liability for an unknowing individual:

Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof oí knowledge contributed to this conclusion.

United States v. Balint, 258 U.S. 250, 254, 42 S.Ct. 301, 66 L.Ed. 604 (1922) (emphasis added). Here, if knowledge was a necessary element of the open container offense, there would be a substantial, if not insurmountable, difficulty of proof. The legislature may have weighed the possible injustice of subjecting a driver to a penalty against the opportunity of the driver to discover any open bottle and the difficulty of proof of knowledge. It is therefore reasonable to conclude that the legislature, weighing the significant danger to the public, decided that proof of knowledge under subdivision 3 was not required.

The legislature has made knowledge distinctions within its traffic statutes that also guide our interpretation. For example, with respect to marijuana in a motor vehicle, the Minnesota legislature has used language similar to the language found in section 169.122, subdivision 3 (“keep or allow to be kept”) but added a knowledge requirement. An owner, or if the owner is not present, the driver, is guilty of a misdemeanor if he “knowingly keeps or allows to be kept” marijuana in a motor vehicle. Minn.Stat. § 152.027, subd. 3 (1998) (emphasis added). The use of the word “knowingly” in section 152.027, subdivision 3 to modify the same language as contained in section 169.122, subdivision 3 indicates that the legislature does not perceive the word “keep” alone to imply or contain a knowledge element. Section 152.027 became effective in August of 1989, 30 years after section 169.122 was enacted. If the legislature had intended section 169.122 to have a knowledge requirement, it could have added the word “knowingly,” as the legislature did in section 152.027, when section 169.122 was amended in 1990, 1991, 1993 and 1994 or at any other time.5

In the absence of such a modifier, we believe that the parallels between subdivision 3 and other non-alcohol related traffic statutes also support our holding. The phrases “it shall be unlawful” or “no person shall” appear throughout the traffic code and have never been understood to require a showing of intent to prove a violation of the statute. See generally Minn.Stat. § 169.14 (1998) (speeding); Butler v. Engel, 243 Minn. 317, 336, 68 N.W.2d 226, 238 (1954). In fact, Loge concedes that other provisions of the traffic code that use such language are strict liability offenses. See generally Minn.Stat. §§ 169.14, 169.48 (1998).

*158Lastly, Loge argues that an interpretation excluding knowledge as an element could lead to absurd results. While it is true that the legislature does not intend a result that is absurd or unreasonable, see Minn.Stat. § 645.17(1) (1998), we do not believe such a result exists here. Loge’s conviction resulted from an officer standing outside the truck observing the open container of beer sticking partially out of a brown bag underneath the seat on the passenger side of the truck Loge was driving. By simply taking control of the truck, Loge took control and charge of the contents of the truck, including the open bottle, even if he did not know the open bottle was in the truck.

Though the dissent acknowledges the authority of the legislature to create criminal statutes without regard to intent or knowledge, it cites to the rule6 enunciated in Kremer as a limitation: “it is not essential that the wrongdoer should intend to commit the crime to which his act amounts, but it is essential that he should intend to do the act which constitutes the crime.” State v. Kremer, 262 Minn. 190, 191, 114 N.W.2d 88, 89 (1962) (citations omitted). However, although dicta, we also stated:

If the defendant * * * went through a stop light that he did not see, and was defending on the ground that he did so without any criminal intent, a court could be justified in finding him guilty of a violation of the ordinance involved. When the driver intends to proceed forward, or is negligent in any way, he can be held liable for his acts.

Id. at 192, 114 N.W.2d at 89. Similarly, here, even though Loge did not see the open bottle and argues therefore that he had no criminal intent, he, as the driver, intended to proceed forward. As in the Kremer hypothetical, not seeing a stop sign or, as here, not seeing an open bottle, a court is justified in finding a defendant guilty of a violation of the statute if the defendant intended to proceed forward. In order to avoid violating this statute, Loge had an affirmative duty to ensure that there were no open containers in the area of a motor vehicle normally occupied by the driver or passenger on a public highway. He had the opportunity and was in the best position to find out the fact of the open bottle?s presence “with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.” Id. (citing Morissette v. United States, 342 U.S. 246, 256, 72 S.Ct. 240, 96 L.Ed. 288 (1952)). Here, all Loge had to do was observe an open beer bottle protruding from a bag under the passenger’s seat, which the trial court found was visible even to the officer who was standing outside the truck looking in.

The “to keep” an open bottle language of subdivision 3 means more than knowingly continuing possession because such conduct is already made illegal by subdivision 2. Any other interpretation would render subdivision 3 mere surplusage and would violate the statutory presumption that the legislature intends an entire statute to be effective and certain. See Minn.Stat. § 645.17(2); Orsello, 554 N.W.2d at 75-76. Therefore, we hold that in a prosecution under section 169.122, subdivision 3, the state need not prove that the driver and sole occupant of a motor vehicle on a public highway knew of the existence of the *159open bottle containing intoxicating liquors in the motor vehicle.

Affirmed.

PAUL H. ANDERSON, J.

(dissenting).

I respectfully dissent. In its effort to reach a correct policy decision, the majority disregards our proper role as interpreters of the law. In doing so, the majority has preempted the legislature’s function and assumed the mantle of policymaker. I agree that under certain circumstances the legislature may provide that criminal liability attach without requiring any showing of intent or knowledge on the part of the person charged. See In re A.A.E., 590 N.W.2d 773, 777 (Minn.1999). Further, in the context of open containers of alcohol in motor vehicles, there is a credible argument that it is good public policy given the social and economic costs that result from the combination of alcohol and motor vehicles. But, all of that said, the majority’s analysis simply does not demonstrate the requisite clear statement of legislative intent necessary to create criminal liability in the absence of a showing of knowledge or intent.

It is a fundamental principle of our substantive law, especially for statutes carrying criminal sanctions, that obligations imposed by law must be stated in clear and understandable terms. See State v. Lanesboro Produce & Hatchery Co., 221 Minn. 246, 253, 21 N.W.2d 792, 795 (1946). Due process requires that a penal statute be based on “knowable criteria which [persons] of common intelligence who come in contact with the statute may use with reasonable safety in determining its command.” Id. (citing Collins v. Kentucky, 234 U.S. 634, 34 S.Ct. 924, 58 L.Ed. 1510 (1914)). A statute is unconstitutionally vague “if it requires or forbids in terms so vague that [persons] of common intelligence must guess at its meaning and differ as to its application.” Lanesboro Produce, 221 Minn, at 254, 21 N.W.2d at 795.

We have stated that when the legislature intends to make an act unlawful and to impose criminal sanctions without any requirement of intent or knowledge, it must do so clearly. See State v. Neisen, 415 N.W.2d 326, 329 (Minn.1987). Further, the legislature’s authority to impose criminal sanctions without any requirement of knowledge or intent is subject to another important limitation. While a person need not intend his acts to be criminal, he must intend to do the act that is criminal. We have stated that “[i]t is not essential that the wrongdoer should intend to commit the crime to which his act amounts, [but] it is essential that he should intend to do the act which constitutes the crime.” State v. Kremer, 262 Minn. 190, 191, 114 N.W.2d 88, 89 (1962).1 The United States Supreme Court, confronted with a similar issue, noted:

Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.

Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (citations omitted). Further, it is worth noting that in Morissette the Court held *160that the “mere omission from [a statute] of any mention of intent will not be construed as eliminating that element from the crimes denounced.” Id. at 268, 72 S.Ct. 240.

The majority’s analysis of the language of MinmStat. § 169.122 does not demonstrate the level of certainty necessary to allow me to conclude that the statute manifests a clear intent by the legislature to impose criminal liability regardless of intent or knowledge. The plain language of the statute, the unreasonable results that arise from the majority’s interpretation, the differing application of the statute by district courts, and even the cases cited by the majority lead me to this conclusion. Minnesota Statutes § 169.122, subd. 3, simply lacks the requisite clarity to support the imposition of criminal liability without any showing of intent or knowledge.

We are guided by our accepted rules of statutory interpretation when determining the meaning of a statute. One rule, which the majority claims to follow, is to look to the plain language of the statute. See Minn.Stat. § 645.16. The majority states that the language is plain and dispositive because the legislature frequently uses the phrase “it shall be unlawful” or “no person shall” to indicate strict liability for motor vehicle offenses. However, this is not the dispositive language in this statute. Rather, the question turns on the use of the phrase “keep or allow to be kept,”

The majority attempts to avoid the implications of the phrase “allow to be kept” by discarding it on the grounds that Loge was the sole occupant of the vehicle. While we may limit the application of law to the facts presented, that does not mean that we may disregard inconvenient language contained in the statute as a whole. See Kollodge v. F & L Appliances, 248 Minn. 357, 360, 80 N.W.2d 62, 64 (1956) (stating that the court may not read statutory language out of context). The majority cannot avoid the implications of the term “allow” because it is convenient to do so. In other contexts, we have held that the inclusion of words like “permit” (a synonym of “allow”) clearly indicates a legislative intent to require some level of knowledge or intent. See, e.g., Peterson v. Pawelk, 263 N.W.2d 634, 637 (Minn.1978) (stating that the use of the term “permit” in a statute clearly indicates that the legislature did not intend to impose strict liability). While it is possible to find definitions of “keep” that do not appear to implicate knowledge or intent, there are, as Loge points out, many definitions of “keep” that imply some level of conscious knowledge or intent. The multiple definitions of the word “keep” cited by the parties underscore the lack of clarity in the statute’s language. None of these definitions clearly indicate that proof of knowledge or intent is either required or clearly excluded.

The majority asserts that because the legislature used the similar language “keeps or allows to be kept” in MinmStat. § 152.027, but added the word “knowingly,” the lack of the word “knowingly” in Minn.Stat. § 169.122 means that no knowledge requirement was intended. While we do presume that the legislature uses words in a 'consistent manner, here such analysis yields no clear answers. It is clear that the use of the word “knowingly” in section 152.027 indicates that the legislature intended to require knowledge for the possession of marijuana in a vehicle. However, the fact that it is not included in section 169.122, a law passed some 20 years earlier and on a different subject, does not indicate that the legislature intended to disregard any requirement of knowledge or intent.

The majority’s analysis also disregards those situations where there is more than one person in the vehicle. However, limiting their holding in this way does not allow the majority to artificially limit the scope of the statute and then claim that requiring knowledge in this case would make subdivision 2 of the statute surplusage. I cannot ignore the fact that the legislature intended this statute to be applied in all *161situations regardless of the number of persons in the vehicle. Viewed as such, requiring some level of intent on the part of the driver or owner would not render subdivision 2 of the statute surplusage. Also, when viewed in the situation where more than one person is in the vehicle, the majority’s interpretation of section 169.122 implies some very troubling and unreasonable outcomes.

Under subdivision 2 of the statute, criminal liability is imposed for possession of an open container of alcohol by any person in a motor vehicle. See Minn.Stat. § 169.122, subd. 2. Possession here means actual possession of or the conscious exercise of dominion or control over the container. See id. The majority claims that because this subdivision already imposes liability for the knowing possession of an open container of alcohol in a vehicle, to do so again in subdivision 3 is unnecessary. This line of reasoning only works in the majority’s interpretation and only in the case where one person is in the vehicle. When more than one person is in the vehicle, the purpose of the different subdivisions becomes clear. A passenger may have an open container of alcohol and not have disclosed that fact to the driver. Clearly subdivision 2 applies to that passenger. But it is also clear that because the passenger concealed this fact from the driver, the driver should not be held liable. To do otherwise would be to hold the driver criminally liable for an act he did not intend to commit and over which he had no control. In the case when a container is open and visible in the passenger compartment of a vehicle and none of the passengers are shown possessing it, then the owner, or driver, remains ultimately responsible. Simply because the subdivision may not have application in a unique fact pattern does not make it surplusage for the purposes of our analysis.

The above example highlights one of the unreasonable results of the majority’s interpretation. A driver could be held responsible for the acts of passengers that they conceal from him. An absent owner could be held liable for acts of passengers he has never met. . In interpreting a statute, we assume that the legislature does not intend an unreasonable or absurd result. See Minn.Stat. § 645.17. •

The majority also implies that in this case the bottle was in plain sight and that under the circumstance of this case, Loge actually knew (or should have known) that the open bottle was in the truck. The district court made no such finding nor is it our province to do so. The majority attempts to mollify the results of its holding by saying that in this case Loge really knew. While an interesting conclusion on the part of the majority, it renders the majority’s holding unnecessary. If Loge knew, or reasonably should have known, that this open container was present in his vehicle, the majority’s holding is unnecessary. In such a case, there is a showing of knowledge or intent sufficient to sustain Loge’s conviction without interpreting the statute as having no requirement for knowledge or intent.

While the majority mentions the history of the application of this statute by district courts, it fails to consider its import. While not binding on this court, we do look to the practical construction of a statute by public officials in determining its meaning. See Governmental Research Bureau, Inc. v. St. Louis County, Minn., 258 Minn. 350, 357, 104 N.W.2d 411, 416 (1960). The district court judges of Minnesota are divided about the meaning of Minn.Stat. § 169.122, subd. 3. The Minnesota District Judges Association highlighted the ambiguity of the statute when it noted in the 1989 CRIMJIG on Minn.Stat. § 169.122, subd. 3 that *16210a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, M-JIG 3.17 (1989 ed.). Later editions continued to carry the knowledge requirement as optional, leaving its inclusion to the discretion of the trial judge. See 10a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, Preface and CRIM-JIG 29.30 (4th ed.1999). Such division by the trial bench of this state indicates that the meaning of the statute’s language is much less clear than the majority contends.2 ■

*161Trial judges in Minnesota are divided as to whether or not knowledge is required under the statute, and an early Attorney General Opinion maintains that the language of the statute does not require knowledge. Op. Atty. Gen., 989a-25, Jan. 5,1960.

*162The majority cites two of our earlier decisions to support the proposition that the legislature may impose criminal liability without regard to intent or knowledge. While I do not disagree with this proposition, the cited cases also demonstrate the way we have analyzed statutes when it is claimed that knowledge or intent is not required to impose criminal liability. In State v. Dombroski, we noted that the legislature clearly and unambiguously manifested its intent to impose criminal liability for the statutory rape of an incompetent female without regard to whether the accused knew that the victim was incompetent. See 145 Minn. 278, 279, 176 N.W. 985, 985-86 (1920). Here, the statute did not require knowledge that the victim was incompetent, but it required intent to commit an act that, in combination with the victim’s status, would constitute statutory rape.

In In re A.A.E, we acknowledged that the legislature may make a person criminally liable for injuries resulting from the discharge of a firearm regardless of whether that person intended to cause injury, but we held that some level of intent, reckless disregard of a known danger, was required. See 590 N.W.2d at 777. While the actor need not intend to cause injury, he must intend to recklessly discharge a firearm. See id. The dispute in AA.E. was not whether intent was required, but whether a specific intent to injure another was required. See id. We observed that the language of the statute could have been read to impose liability under any circumstance where a firearm was discharged and an injury resulted; however, we noted that such an interpretation conflicted with other language in the statute and would produce unreasonable results. See id. Importantly, in both Dombroski and AA.E., there needed to be an intent to commit the act for which criminal sanctions would be imposed.

The majority, limiting its analysis of this statute to the narrow facts in this case, proceeds undistracted by the implications of other contextual language in the statute and the fact that district courts of this state have differed on both the meaning and the application of the statute. While the majority claims that their holding is limited only to those situations where there is one occupant in the vehicle, they also note that this is the first time we have directly addressed the question of whether knowledge or intent is required for this statute. Given the obvious lack of clarity, the majority’s holding will likely have much wider effect.

Finally, under the majority’s holding, we now will impose criminal liability on a person, not simply for an act that the person does not know is criminal, but also for an act the person does not even know he is committing. While the district court and the majority seem to assume that everyone who drives a motor vehicle knows that he or she is obligated to search the entire passenger compartment of the vehicle before driving on the state’s roads, the law imposes no such requirement. Most drivers would be surprised to discover that *163after anyone else used their vehicle — children, Mends, spouse — they are criminally liable for any open containers of alcohol that are present, regardless of whether they know the containers are there. This also means that any prudent operator of a motor vehicle must also carefully check any case of packaged alcohol before transport and ensure that each container’s seal is not broken. See Minn.Stat. § 169.122 (defining an open bottle as a container that is open, has the contents partially removed, or has the seal broken). Under the majority’s interpretation, all of these situations would render the driver criminally liable under Minn.Stat. § 169.122. Without a more clear statement by the legislature that this is the law, I cannot agree with such an outcome.

PAGE, Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.

STRINGER, Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.

OPINION

COATS, Judge.

This case raises the question of the extent to which a defendant can rely on mistake of law as a defense to a fish and game violation.

Harold Ostrosky and his two daughters were convicted of fishing without a valid limited entry permit in 1979. Ostrosky’s daughters moved for post-conviction relief, contending that the Limited Entry Act violated equal protection. Judge Victor D. Carlson found the act unconstitutional and vacated the convictions on August 14,1981. Ostrosky was allowed to join in the action, and his conviction was set aside on August 25, 1981. The state appealed. This court certified the case to the supreme court, and the supreme court accepted the case for decision.

On July 3, 1983, Ostrosky was fishing with a drift gill net in open waters off Naknek. Trooper Gary Folger, acting as a fish and wildlife protection officer, boarded Ostrosky’s boat and checked it for fish. Despite Ostrosky’s admission that he had no permit, the trooper did not arrest Ostro-sky or try to stop him from fishing.

On July 7, 1983, while the state’s appeal in Ostrosky’s earlier case was still pending, the state filed an emergency request with the supreme court for a stay of the effect of Judge Carlson’s ruling in that case, pursuant to Appellate Rule 504. The request alleged that “irreparable harm” would result if the stay were not granted, because Ostrosky had continued to fish the waters *789of Bristol Bay without a permit, creating a “serious potential for violence” in the area and “undermining the fishermen’s confidence in the limited entry system.” An affidavit from an assistant attorney general was attached in support of these charges. The request ended with this statement: “A stay of the Memorandum Decision is necessary to accord the Division of Fish and Wildlife Protection the necessary authority to arrest Mr. Ostrosky for violation of [the Limited Entry Act].” Chief Justice Edmond Burke, acting as a single justice, entered an order granting the stay pending the announcement by the supreme court of a decision in Ostrosky’s case. The order states, “the intent of this order is to permit the continued enforcement of the Limited Entry Act pending this court’s decision on the merits.” On July 8, 1983, Trooper Folger cited Ostrosky for fishing without a permit on that date, for fishing without permit on July 3, and for illegal possession of salmon.

On July 19, 1983, the Alaska Supreme Court reversed Judge Carlson’s ruling and upheld the Limited Entry Act. State v. Ostrosky, 667 P.2d 1184 (Alaska 1983), appeal dismissed, — U.S. —, 104 S.Ct. 2379, 81 L.Ed.2d 339, reh’g denied, — U.S. —, 104 S.Ct. 3572, 82 L.Ed.2d 871 (1984). After the supreme court’s decision, Ostrosky filed a motion to dismiss in the present case alleging that, at the time he was charged with violating the Limited Entry Act, the Act had been declared unconstitutional in a case in which he was a party. Ostrosky argued that he was entitled to rely on Judge Carlson’s ruling. Judge Carlson ruled that Ostrosky had no right to rely on his earlier decision and that by fishing, Ostrosky had taken the risk that the earlier decision would be reversed by the supreme court.

Ostrosky then asked the court to instruct the jury that reasonable reliance on a judicial decision was a defense to this prosecution. Judge Carlson denied this request. He also ruled that Ostrosky could not present testimony concerning reasonable reliance on a judicial decision since that testimony would be irrelevant. Ostrosky at this point made an offer of proof that he would testify that at the time he was fishing he believed that he was fishing legally. He represented that he relied on Judge Carlson’s decision declaring the Limited Entry Act unconstitutional and that he had read an article in the Fisherman’s Journal which reported that a magistrate in Kenai had also ruled that the Limited Entry Act was unconstitutional. He also indicated that after Judge Carlson’s ruling declaring the Limited Entry Act to be unconstitutional, Ostrosky had talked to his attorney who had assured him that he would not be arrested for fishing without a permit during the 1983 season.

After Judge Carlson ruled Ostrosky’s defense of mistake of law was irrelevant and that he would not give a jury instruction on this defense, Ostrosky agreed to a court trial on the condition that his objection to this ruling would be preserved for appeal. Ostrosky was convicted following a court trial. He now appeals to this court.

The defense of reasonable reliance on a statute or judicial decision is discussed in W. LaFave and A. Scott, Criminal Law § 47, at 366-67 (1972):

An individual should be able reasonably to rely upon a statute or other enactment under which his conduct would not be criminal, so that he need not fear conviction if subsequent to his conduct the statute is declared invalid. A contrary rule would be inconsistent with the sound policy that the community is to be encouraged to act in compliance with legislation. Thus, just as it is no defense that the defendant mistakenly believed the statute under which he was prosecuted to be unconstitutional, it is a defense that he reasonably relied upon a statute permitting his conduct though it turned out to be an unconstitutional enactment.

For essentially the same reason, the better view is that it is a defense that the defendant acted in reasonable reliance upon a judicial decision, opinion or judgment later determined to be invalid or *790erroneous. The clearest case is that in which the defendant’s reliance was upon a decision of the highest court of the jurisdiction, later overruled, whether the first decision involved the constitutionality of a statute, the interpretation of a statute, or the meaning of the common law. A contrary rule, whereby the subsequent holding would apply retroactively to the defendant’s detriment, would be as unfair as ex post facto legislation.

Under the majority view, reasonable reliance upon a decision of a lower court is likewise a defense. Thus, if the lower court has found a repealer statute constitutional, has declared the relevant criminal statute unconstitutional, or has enjoined enforcement of the statute, there may be a basis for reasonable reliance. However, in the case of lower court decisions there is more likely to arise a question of whether the reliance is reasonable. It has been suggested, for example, that reliance should not be a defense when it was known that the decision of the lower court was on appeal. [Footnotes omitted.]

We note also that the Model Penal Code provides for mistake of law as an affirmative defense. Section 2.04(3) of the Model Penal Code provides in part:

(3) a belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

(b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

Model Penal Code § 2.04(3) (Proposed Official Draft 1962).

There is little state law to guide us in defining when mistake of law is a defense. Apparently the only Alaska appellate court decision concerning a mistake of law based upon reliance on a judicial decision is Cleveland v. Anchorage, 631 P.2d 1073, 1083 (Alaska 1981). In that case the supreme court held that as a matter of law it was unreasonable for the defendants to rely on trial court decisions from another state to justify their conduct. Cleveland does not appear to be helpful in resolving the issue before us in this case.

We note that the revised criminal code, which appears to attempt to codify defenses to criminal acts, does not provide for a defense of mistake of law. AS 11.81.620(a) provides:

(a) Knowledge, recklessness, or criminal negligence as to whether conduct constitutes an offense, or knowledge, recklessness, or criminal negligence as to the existence, meaning, or application of the provision of law defining an offense, is not an element of an offense unless the provision of law clearly so provides. Use of the phrase “intent to commit a crime”, “intent to promote or facilitate the commission of a crime”, or like terminology in a provision of law does not require that the defendant act with a culpable mental state as to the criminality of the conduct that is the object of the defendant’s intent.

The commentary to the code indicates that this section is intended to codify “the universal principal that ordinarily ignorance of the law is not a defense.” In tracing AS 11.81.620(a) to the tentative draft of the Alaska Criminal Code prepared by the Alaska Code Revision Commission, Sub-commission on Criminal Law, we discover that AS 11.81.620(a) is derived from Oregon Revised Statutes § 161.115(4) and that AS 11.81.620(b) is derived from New York Penal Law § 15.20(1). New York Penal Law § 15.20 provides for a defense of reasonable mistake of law.1 Therefore, it ap*791pears probable that the drafters of the revised criminal code were aware of the New York provision and did not include it in the revised criminal code. This could mean that the legislature did not intend to allow a mistake of law defense in the revised code. It could also mean that the legislature overlooked the provision or wanted to leave the defense of mistake of law for later court determination. Since the commentary is silent, it is difficult for us to ascertain the legislative intent.

Furthermore, even if we were to conclude that the legislature rejected a defense of reasonable mistake of law in the revised code, that would not mean that the legislature intended that rejection to apply to fish and game offenses. AS 11.81.620(a) only applies to those offenses set forth in Title 11. See AS 11.81.640.

The state concedes that “most courts and commentators recognize that a person should be able to rely upon a judicial decision, even if that decision is later overruled.” However, the state argues that we should hold that the defense of reasonable reliance on a court decision should be limited to decisions by the state appellate courts or the United States Supreme Court. See State v. Striggles, 202 Iowa 1318, 210 N.W. 137, 138 (1926).

In the absence of any statutory or case law establishing or rejecting such a defense, we conclude that a concern for due process of law requires us to establish at least a limited defense. Fish and game laws regulate legitimate activity. Violations of those regulations are malum prohibitum, not malum in se. As the court stated in Kratz v. Kratz, 477 F.Supp. 463, 481 (E.D.Pa.1979):

It would be an act of “intolerable injustice” to hold criminally liable a person who had engaged in certain conduct in reasonable reliance upon a judicial opinion instructing that such conduct is legal. Indeed, the reliance defense is required by the constitutional guarantee of due process as illuminated by the Supreme Court in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) and Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). [Footnotes omitted.]

However, we believe that the defense of reasonable mistake of law must be a limited defense in light of the fact that the general rule of law is that mistake of law is not a defense. The policy behind this rule is to encourage people to learn and know the law; a contrary rule would reward intentional ignorance of the law.' The traditional rule of law that mistake of law is not a defense is based upon the fear “that its absence would encourage and reward public ignorance of the law to the detriment of our organized legal system, and would encourage universal pleas of ignorance of the law that would constantly pose confusing and, to a great extent, insolvable issues of fact to juries and judges, thereby bogging down our adjudicative system.” United States v. Barker, 546 F.2d 940, 954 (D.C.Cir.1976) (Merhige, District J., concurring).

Model Penal Code § 2.04(4) (Proposed Official Draft 1962) provides:

(4) The defendant must prove a defense arising under Subsection (3) [quoted above] of this Section by a preponderance of evidence.

An earlier version of this subsection contained similar language but added:

The reasonableness of the belief claimed to constitute the defense shall be determined as a question of law by the Court.

*792§ 2.04(4) (Tentative Draft No. 4,1955). We believe that the 1955 Tentative Draft provision sets forth a reasonable procedure for a trial court to follow in deciding whether a defense of mistake of law has been established.

We hold that a defense of mistake of law is an affirmative defense which the defendant must prove to the court by a preponderance of the evidence. We believe that this procedure will allow a defendant in a criminal case to obtain relief in cases where it would be unfair to hold him to knowledge of the law. Making the defense an affirmative defense argued to the court should protect against abuses of the defense and should ultimately make the law in this area more uniform as judges make decisions concerning what is a reasonable mistake of law. The determination of whether the defense applies requires a legal, technical application of due process considerations, a task within the judicial function. This determination will often depend on an understanding of the legal prec-edential value of decisions of courts at various levels, and of the appeals process. There is great potential for confusion and distraction if the jury were required, for instance, to determine whether it was reasonable to rely on a superior court decision reversing a district court decision (but in accord with the decisions of another district judge) which is being appealed to the supreme court.

The state would have us rule as a matter of law that it was unreasonable for Ostrosky to rely on Judge Carlson's decision that the Limited Entry Act was unconstitutional. The state argues that since the decision was a trial court decision it was not binding on other courts and, since the decision was on appeal, Ostrosky should have been aware that the decision could be reversed. There is support in the cases and commentary on this issue which suggests that normally it might be unreasonable to rely on a decision of a trial court which is on appeal. See W. LaFave and A. Scott, Criminal Law § 47, at 367 (1972). However, the question of whether a person’s reliance on a lower court decision is reasonable or not is in the first instance a question for the trial court. See id.; Kratz v. Kratz, 477 F.Supp. at 481 n. 47 (E.D.Pa.1979). We are not prepared to rule, as a matter of law, that in every case it would be unreasonable to rely on a lower court decision which is on appeal.

We note that in this case Ostro-sky does not just represent that he relied on the ruling of the superior court. The court ruling involved was a case in which Ostrosky was a party. He also claims that his attorney assured him that the decision meant that he could fish.2 When Ostrosky started fishing, Trooper Folger did not cite him or warn him not to fish. Furthermore, the papers filed with the courts by the Department of Law in July of 1983, taken on their face, indicate that the Department of Law was operating under the assumption that it needed to stay Judge Carlson’s decision in order to enforce the Limited Entry Act.3 If we look at these factors alone, in the light most favorable to Ostro-sky, it appears that he has a sufficient claim of reasonable mistake of law to at least allow him to have a hearing on this issue. We therefore remand the case to allow Ostrosky to develop his defense of reasonable mistake of law at a hearing. We direct the superior court to make find*793ings of fact and conclusions of law following the hearing.4

The case is REMANDED.

BRYNER, C.J., dissents.

BRYNER, Chief Judge,

dissenting.

Upon reflection, I am unable to agree with the majority’s decision to create an affirmative defense of reasonable mistake of law. In light of the revised criminal code’s treatment of defenses and affirmative defenses, AS 11.81.300-640, and in light of the express provisions of AS 11.81.-620(a) and the legislative history of that statutory provision I think it reasonably clear that the legislature rejected mistake of law as a defense to criminal responsibility. The majority’s decision to create such a defense is therefore unsound.1

Moreover, the defense created by the majority is unnecessary: it is a cumbersome and potentially confusing general rule adopted solely to dispose of the specific problem in this case. The problem is susceptible of a far more limited cure.

The crucial facts here are not disputed. Ostrosky challenged the constitutional validity of the limited entry permit system and won in the superior court. The state could have moved immediately for a stay pending appeal but did not. Having personally obtained a favorable judgment from a court of general jurisdiction in a case in which he was himself the plaintiff,2 and no stay pending appeal having been sought by the state, Ostrosky resumed fishing. No prior Alaska judicial decision addressed the question whether, under the circumstances, Ostrosky was legally entitled to rely on the superior court’s ruling.

*794It seems clear from the record that the Office of the Attorney General initially believed Ostrosky was entitled to fish unless a stay was issued. The state so represented in the motion for a stay that it filed with the supreme court after realizing that Os-trosky had resumed fishing. Similarly, the supreme court justice who granted the state’s motion for a stay apparently believed a stay was necessary to prevent Os-trosky from relying on the superior court ruling. To hold that Ostrosky could subsequently be prosecuted for sharing this same view seems, under the circumstances, preposterous. I would, accordingly, simply hold that in the peculiar factual setting of this case, it would be fundamentally unfair, and violative of the Alaska Constitution’s guarantee of due process,3 to permit Ostro-sky to be convicted for a limited entry violation committed after the superior court’s ruling but before issuance of the stay pending appeal.

Since I believe Ostrosky’s conviction must be reversed and the prosecution dismissed as a matter of law, I dissent.

Justice BREYER delivered the opinion of the Court.

*2194A federal statute, 18 U.S.C. § 922(g), provides that "[i]t shall be unlawful" for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are "illegally or unlawfully in the United States." Ibid. A separate provision, § 924(a)(2), adds that anyone who "knowingly violates" the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.)

The question here concerns the scope of the word "knowingly." Does it mean that the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)? We hold that the word "knowingly" applies both to the defendant's conduct and to the defendant's status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.

I

Petitioner Hamid Rehaif entered the United States on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his " 'immigration status' " would be terminated unless he transferred to a different university or left the country. App. to Pet. for Cert. 3a. Rehaif did neither.

Rehaif subsequently visited a firing range, where he shot two firearms. The Government learned about his target practice and prosecuted him for possessing firearms as an alien unlawfully in the United States, in violation of § 922(g) and § 924(a)(2). At the close of Rehaif's trial, the judge instructed the jury (over Rehaif's objection) that the "United States is not required to prove" that Rehaif "knew that he was illegally or unlawfully in the United States." App. to Pet. for Cert. 4a (internal quotation marks omitted). The jury returned a guilty verdict, and Rehaif was sentenced to 18 months' imprisonment.

*2195Rehaif appealed. He argued that the judge erred in instructing the jury that it did not need to find that he knew he was in the country unlawfully. The Court of Appeals for the Eleventh Circuit, however, concluded that the jury instruction was correct, and it affirmed Rehaif's conviction. See 888 F.3d 1138, 1148 (2018). The Court of Appeals believed that the criminal law generally does not require a defendant to know his own status, and further observed that no court of appeals had required the Government to establish a defendant's knowledge of his status in the analogous context of felon-in-possession prosecutions. Id. , at 1145-1146.

We granted certiorari to consider whether, in prosecutions under § 922(g) and § 924(a)(2), the Government must prove that a defendant knows of his status as a person barred from possessing a firearm. We now reverse.

II

Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. See Staples v. United States , 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). In determining Congress' intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding "each of the statutory elements that criminalize otherwise innocent conduct." United States v. X-Citement Video, Inc. , 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) ; see also Morissette v. United States , 342 U.S. 246, 256-258, 72 S.Ct. 240, 96 L.Ed. 288 (1952). We normally characterize this interpretive maxim as a presumption in favor of "scienter," by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to "mak[e] a person legally responsible for the consequences of his or her act or omission." Black's Law Dictionary 1547 (10th ed. 2014).

We apply the presumption in favor of scienter even when Congress does not specify any scienter in the statutory text. See Staples , 511 U.S. at 606, 114 S.Ct. 1793. But the presumption applies with equal or greater force when Congress includes a general scienter provision in the statute itself. See ALI, Model Penal Code § 2.02(4), p. 22 (1985) (when a statute "prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears").

A

Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter. The statutory text supports the presumption. The text of § 924(a)(2) says that "[w]hoever knowingly violates" certain subsections of § 922, including § 922(g), "shall be" subject to penalties of up to 10 years' imprisonment. The text of § 922(g) in turn provides that it "shall be unlawful for any person ..., being an alien ... illegally or unlawfully in the United States," to "possess in or affecting commerce, any firearm or ammunition."

The term "knowingly" in § 924(a)(2) modifies the verb "violates" and its direct object, which in this case is § 922(g). The proper interpretation of the statute thus turns on what it means for a defendant to know that he has "violate[d]" § 922(g). With some here-irrelevant omissions, § 922(g) makes possession of a firearm or ammunition unlawful when the following elements are satisfied: (1) a status element (in this case, "being an alien ... illegally *2196or unlawfully in the United States"); (2) a possession element (to "possess"); (3) a jurisdictional element ("in or affecting commerce"); and (4) a firearm element (a "firearm or ammunition").

No one here claims that the word "knowingly" modifies the statute's jurisdictional element. Jurisdictional elements do not describe the "evil Congress seeks to prevent," but instead simply ensure that the Federal Government has the constitutional authority to regulate the defendant's conduct (normally, as here, through its Commerce Clause power). Luna Torres v. Lynch , 578 U.S. ----, ---- - ----, 136 S.Ct. 1619, 1630-1631, 194 L.Ed.2d 737 (2016). Because jurisdictional elements normally have nothing to do with the wrongfulness of the defendant's conduct, such elements are not subject to the presumption in favor of scienter. See id., at ----, 136 S.Ct., at 1631.

Jurisdictional element aside, however, the text of § 922(g) simply lists the elements that make a defendant's behavior criminal. As "a matter of ordinary English grammar," we normally read the statutory term " 'knowingly' as applying to all the subsequently listed elements of the crime." Flores-Figueroa v. United States , 556 U.S. 646, 650, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009) ; see also id., at 652, 129 S.Ct. 1886 (we "ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word 'knowingly' as applying that word to each element"). This is notably not a case where the modifier "knowingly" introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends. See id., at 659, 129 S.Ct. 1886 (ALITO, J., concurring in part). And everyone agrees that the word "knowingly" applies to § 922(g)'s possession element, which is situated after the status element. We see no basis to interpret "knowingly" as applying to the second § 922(g) element but not the first. See United States v. Games-Perez , 667 F.3d 1136, 1143 (CA10 2012) (Gorsuch, J., concurring). To the contrary, we think that by specifying that a defendant may be convicted only if he "knowingly violates" § 922(g), Congress intended to require the Government to establish that the defendant knew he violated the material elements of § 922(g).

B

Beyond the text, our reading of § 922(g) and § 924(a)(2) is consistent with a basic principle that underlies the criminal law, namely, the importance of showing what Blackstone called "a vicious will." 4 W. Blackstone, Commentaries on the Laws of England 21 (1769). As this Court has explained, the understanding that an injury is criminal only if inflicted knowingly "is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Morissette , 342 U.S. at 250, 72 S.Ct. 240. Scienter requirements advance this basic principle of criminal law by helping to "separate those who understand the wrongful nature of their act from those who do not." X-Citement Video , 513 U.S. at 72-73, n. 3, 115 S.Ct. 464.

The cases in which we have emphasized scienter's importance in separating wrongful from innocent acts are legion. See, e.g. , id. , at 70, 115 S.Ct. 464 ; Staples , 511 U.S. at 610, 114 S.Ct. 1793 ; Liparota v. United States , 471 U.S. 419, 425, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) ; United States v. Bailey , 444 U.S. 394, 406, n. 6, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) ; United States v. United States Gypsum Co. , 438 U.S. 422, 436, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) ;

*2197Morissette , 342 U.S. at 250-251, 72 S.Ct. 240. We have interpreted statutes to include a scienter requirement even where the statutory text is silent on the question. See Staples , 511 U.S. at 605, 114 S.Ct. 1793. And we have interpreted statutes to include a scienter requirement even where "the most grammatical reading of the statute" does not support one. X-Citement Video , 513 U.S. at 70, 115 S.Ct. 464.

Applying the word "knowingly" to the defendant's status in § 922(g) helps advance the purpose of scienter, for it helps to separate wrongful from innocent acts. Assuming compliance with ordinary licensing requirements, the possession of a gun can be entirely innocent. See Staples , 511 U.S. at 611, 114 S.Ct. 1793. It is therefore the defendant's status , and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach. Cf. O. Holmes, The Common Law 3 (1881) ("even a dog distinguishes between being stumbled over and being kicked").

We have sometimes declined to read a scienter requirement into criminal statutes. See United States v. Balint , 258 U.S. 250, 254, 42 S.Ct. 301, 66 L.Ed. 604 (1922). But we have typically declined to apply the presumption in favor of scienter in cases involving statutory provisions that form part of a "regulatory" or "public welfare" program and carry only minor penalties. See Staples , 511 U.S. at 606, 114 S.Ct. 1793 ; Morissette , 342 U.S. at 255-259, 72 S.Ct. 240. The firearms provisions before us are not part of a regulatory or public welfare program, and they carry a potential penalty of 10 years in prison that we have previously described as "harsh." X-Citement Video , 513 U.S. at 72, 115 S.Ct. 464. Hence, this exception to the presumption in favor of scienter does not apply.

III

The Government's arguments to the contrary do not convince us that Congress sought to depart from the normal presumption in favor of scienter.

The Government argues that Congress does not normally require defendants to know their own status. But the Government supports this claim primarily by referring to statutes that differ significantly from the provisions at issue here. One of these statutes prohibits "an officer, employee, contractor, or consultant of the United States" from misappropriating classified information. 18 U.S.C. § 1924(a). Another statute applies to anyone "at least eighteen years of age" who solicits a minor to help avoid detection for certain federal crimes. 21 U.S.C. § 861(a)(2). A third applies to a "parent [or] legal guardian" who allows his child to be used for child pornography. 18 U.S.C. § 2251(b).

We need not decide whether we agree or disagree with the Government's interpretation of these statutes. In the provisions at issue here, the defendant's status is the "crucial element" separating innocent from wrongful conduct. X-Citement Video , 513 U.S. at 73, 115 S.Ct. 464. But in the statutes cited by the Government, the conduct prohibited-misappropriating classified information, seeking to evade detection for certain federal crimes, and facilitating child pornography-would be wrongful irrespective of the defendant's status. This difference assures us that the presumption in favor of scienter applies here even assuming the Government is right that these other statutes do not require knowledge of status.

Nor do we believe that Congress would have expected defendants under § 922(g) and § 924(a)(2) to know their own statuses. If the provisions before us were construed to require no knowledge of status, *2198they might well apply to an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his unlawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is "punishable by imprisonment for a term exceeding one year." § 922(g)(1) (emphasis added); see also Games-Perez , 667 F.3d at 1138 (defendant held strictly liable regarding his status as a felon even though the trial judge had told him repeatedly-but incorrectly-that he would "leave this courtroom not convicted of a felony"). As we have said, we normally presume that Congress did not intend to impose criminal liability on persons who, due to lack of knowledge, did not have a wrongful mental state. And we doubt that the obligation to prove a defendant's knowledge of his status will be as burdensome as the Government suggests. See Staples , 511 U.S. at 615, n. 11, 114 S.Ct. 1793 ("knowledge can be inferred from circumstantial evidence").

The Government also argues that whether an alien is "illegally or unlawfully in the United States" is a question of law, not fact, and thus appeals to the well-known maxim that "ignorance of the law" (or a "mistake of law") is no excuse. Cheek v. United States , 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991).

This maxim, however, normally applies where a defendant has the requisite mental state in respect to the elements of the crime but claims to be "unaware of the existence of a statute proscribing his conduct." 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.1(a), p. 575 (1986). In contrast, the maxim does not normally apply where a defendant "has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct," thereby negating an element of the offense. Ibid. ; see also Model Penal Code § 2.04, at 27 (a mistake of law is a defense if the mistake negates the "knowledge ... required to establish a material element of the offense"). Much of the confusion surrounding the ignorance-of-the-law maxim stems from "the failure to distinguish [these] two quite different situations." LaFave, Substantive Criminal Law § 5.1(d), at 585.

We applied this distinction in Liparota , where we considered a statute that imposed criminal liability on "whoever knowingly uses, transfers, acquires, alters, or possesses" food stamps "in any manner not authorized by the statute or the regulations." 471 U.S. at 420, 105 S.Ct. 2084 (quotation altered). We held that the statute required scienter not only in respect to the defendant's use of food stamps, but also in respect to whether the food stamps were used in a "manner not authorized by the statute or regulations." Id., at 425, n. 9, 105 S.Ct. 2084. We therefore required the Government to prove that the defendant knew that his use of food stamps was unlawful-even though that was a question of law. See ibid .

This case is similar. The defendant's status as an alien "illegally or unlawfully in the United States" refers to a legal matter, but this legal matter is what the commentators refer to as a "collateral" question of law. A defendant who does not know that he is an alien "illegally or unlawfully in the United States" does not have the guilty state of mind that the statute's language and purposes require.

The Government finally turns for support to the statutory and legislative history. Congress first enacted a criminal statute prohibiting particular categories of persons from possessing firearms in 1938. See Federal Firearms Act, 52 Stat. 1250.

*2199In 1968, Congress added new categories of persons subject to the prohibition. See Omnibus Crime Control and Safe Streets Act, 82 Stat. 197. Then, in 1986, Congress passed the statute at issue here, the Firearms Owners' Protection Act, 100 Stat. 449, note following 18 U.S.C. § 921, which reorganized the prohibition on firearm possession and added the language providing that only those who violate the prohibition "knowingly" may be held criminally liable.

The Government says that, prior to 1986, the courts had reached a consensus that the law did not require the Government to prove scienter regarding a defendant's status. And the Government relies on the interpretive canon providing that when particular statutory language has received a settled judicial construction, and Congress subsequently reenacts that "same language," courts should presume that Congress intended to ratify the judicial consensus. Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA, Inc. , 586 U.S. ----, ----, 139 S.Ct. 628, 633, 202 L.Ed.2d 551 (2019).

Prior to 1986, however, there was no definitive judicial consensus that knowledge of status was not needed. This Court had not considered the matter. As the Government says, most lower courts had concluded that the statute did not require knowledge of status. See, e.g. , United States v. Pruner , 606 F.2d 871, 874 (CA9 1979). But the Sixth Circuit had held to the contrary, specifically citing the risk that a defendant "may not be aware of the fact" that barred him from possessing a firearm. United States v. Renner , 496 F.2d 922, 926 (1974). And the Fourth Circuit had found that knowledge of a defendant's status was not needed because the statute "[b]y its terms" did not require knowledge of status. United States v. Williams , 588 F.2d 92 (1978) (per curiam ).

This last-mentioned circumstance is important. Any pre-1986 consensus involved the statute as it read prior to 1986-without any explicit scienter provision. But Congress in 1986 added a provision clarifying that a defendant could be convicted only if he violated the prohibition on firearm possession "knowingly." This addition, which would serve no apparent purpose under the Government's view, makes it all but impossible to draw any inference that Congress intended to ratify a pre-existing consensus when, in 1986, it amended the statute.

The Government points to the House Report on the legislation, which says that the 1986 statute would require the Government to prove "that the defendant's conduct was knowing." H. R. Rep. No. 99-495, p. 10 (1986) (emphasis added). Although this statement speaks of "conduct" rather than "status," context suggests that the Report may have meant the former to include the latter. In any event, other statements suggest that the word "knowingly" was intended to apply to both conduct and status. The Senate Report, for example, says that the proposed amendments sought to exclude "individuals who lack all criminal intent and knowledge," without distinguishing between conduct and status. S. Rep. No. 97-476, p. 15 (1982). And one Senate sponsor of the bill pointed out that the absence of a scienter requirement in the prior statutes had resulted in "severe penalties for unintentional missteps." 132 Cong. Rec. 9590 (1986) (statement of Sen. Hatch).

Thus, assuming without deciding that statutory or legislative history could overcome the longstanding presumption in favor of scienter, that history here is at best inconclusive.

* * *

*2200The Government asks us to hold that any error in the jury instructions in this case was harmless. But the lower courts did not address that question. We therefore leave the question for those courts to decide on remand. See Thacker v. TVA , 587 U.S. ----, ----, 139 S.Ct. 1435, 1443, --- L.Ed.2d ---- (2019) (citing Cutter v. Wilkinson , 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) ).

We conclude that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. We express no view, however, about what precisely the Government must prove to establish a defendant's knowledge of status in respect to other § 922(g) provisions not at issue here. See post , at 2207 - 2208 (ALITO, J., dissenting) (discussing other statuses listed in § 922(g) not at issue here). We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

APPENDIX

18 U.S.C. § 924(a)(2)

"Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both."

18 U.S.C. § 922(g)

"It shall be unlawful for any person-

"(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

"(2) who is a fugitive from justice;

"(3) who is an unlawful user of or addicted to any controlled substance ...;

"(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

"(5) who, being an alien-(A) is illegally or unlawfully in the United States; or (B) ... has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(26) ));

"(6) who has been discharged from the Armed Forces under dishonorable conditions;

"(7) who, having been a citizen of the United States, has renounced his citizenship;

"(8) who is subject to a court order that-(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

"(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

Justice ALITO, with whom Justice THOMAS joins, dissenting.

*2201The Court casually overturns the long-established interpretation of an important criminal statute, 18 U.S.C. § 922(g), an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years. According to the majority, every one of those cases was flawed. So today's decision is no minor matter. And § 922(g) is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens.

Today's decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for § 922(g) convictions. Applications for relief by federal prisoners sentenced under § 922(g) will swamp the lower courts. A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of harmless-error review. See ante, at 2199.

If today's decision were compelled by the text of § 922(g) or by some other clear indication of congressional intent, what the majority has done would be understandable. We must enforce the laws enacted by Congress even if we think that doing so will bring about unfortunate results. But that is not the situation in this case. There is no sound basis for today's decision. Indeed, there was no good reason for us to take this case in the first place. No conflict existed in the decisions of the lower courts, and there is no evidence that the established interpretation of § 922(g) had worked any serious injustice.

The push for us to grant review was based on the superficially appealing but ultimately fallacious argument that the text of § 922(g) dictates the interpretation that the majority now reaches. See Pet. for Cert. 8. Ironically, today's decision, while casting aside the established interpretation of § 922(g), does not claim that the text of that provision is itself dispositive. Instead, what the majority relies on, in the end, is its own guess about congressional intent . And the intent that the majority attributes to Congress is one that Congress almost certainly did not harbor.

I

The majority provides a bowdlerized version of the facts of this case and thus obscures the triviality of this petitioner's claim. The majority wants readers to have in mind an entirely imaginary case, a heartless prosecution of "an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his unlawful status." Ante , at 2198. Such a defendant would indeed warrant sympathy, but that is not petitioner, and no one has called to our attention any real case like the one the majority conjures up.

Here is what really happened. Petitioner, a citizen of the United Arab Emirates, entered this country on a visa that allowed him to stay here lawfully only so long as he remained a full-time student. 888 F.3d 1138, 1140 (CA11 2018). He enrolled at the Florida Institute of Technology, but he withdrew from or failed all of his classes and was dismissed. Brief for Petitioner 4-5. After he was conditionally readmitted, he failed all but one of his courses. His enrollment was then terminated, and he did not appeal. The school sent him e-mails informing him that he was no longer enrolled *2202and that, unless he was admitted elsewhere, his status as a lawful alien would be terminated. 888 F.3d at 1140-1141. Petitioner's response was to move to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $ 11,000. This went on for 53 days. Brief for United States 4. A hotel employee told the FBI that petitioner claimed to have weapons in his room. Arrested and charged under § 922(g) for possession of a firearm by an illegal alien, petitioner claimed at trial that the Government had to prove beyond a reasonable doubt that he actually knew that his lawful status had been terminated. Following what was then the universal and long-established interpretation of § 922(g), the District Court rejected this argument, and a jury found him guilty. 888 F.3d at 1141. The Eleventh Circuit affirmed. Id., at 1140. Out of the more than 8,000 petitions for a writ of certiorari that we expected to receive this Term, we chose to grant this one to see if petitioner had been deprived of the right to have a jury decide whether, in his heart of hearts, he really knew that he could not lawfully remain in the United States on a student visa when he most certainly was no longer a student.

II

A

Petitioner claims that the texts of § 922(g) and a companion provision, 18 U.S.C. § 924(a)(2), dictate a decision in his favor, and I therefore begin with the text of those two provisions. Section 924(a)(2) provides in relevant part as follows:

"Whoever knowingly violates subsection ... (g) of section 922 shall be fined as provided in this title, imprisoned for not more than 10 years, or both." (Emphasis added.)

Section 922(g), in turn, makes it unlawful for nine categories of persons to engage in certain interstate-commerce-related conduct involving firearms. These categories consist of: (1) convicted felons; (2) fugitives from justice; (3) users of illegal drugs or addicts; (4) persons found to have very serious mental problems; (5) illegal aliens; (6) individuals who were dishonorably discharged from the Armed Forces; (7) persons who renounced U.S. citizenship; (8) stalkers, harassers, and abusers subject to restraining orders; and (9) persons convicted of a misdemeanor crime of domestic violence.1 Persons *2203falling into these categories are forbidden, as relevant here, to "possess in or affecting commerce, any firearm."

Petitioner argues that, when § 924(a)(2) and § 922(g) are put together, they unambiguously show that a defendant must actually know that he falls into one of the nine enumerated categories. But this purportedly textual argument requires some moves that cannot be justified on the basis of the statutory text. Petitioner's argument tries to hide those moves in the manner of a sleight-of-hand artist at a carnival.

Petitioner begins by extracting the term "knowingly" from § 924(a)(2). He then transplants it into the beginning of § 922(g), ignores the extraordinarily awkward prose that this surgery produces, and proclaims that because "knowingly" appears at the beginning of the enumeration of the elements of the § 922(g) offense, we must assume that it modifies the first of those elements, i.e. , being a convicted felon, illegal alien, etc. To conclude otherwise, he contends, is to commit the sin of having the term "knowingly" leap over that element and then land conveniently in front of the second. Pet. for Cert. 8.

But petitioner's reading is guilty of the very sort of leaping that it condemns-and then some. It has "knowingly" performed a jump of Olympian proportions, taking off from § 924(a)(2), sailing backward over more than 9,000 words in the U.S. Code, and then landing-conveniently-at the beginning of the enumeration of the elements of the § 922(g) offense. Of course, there is no logical reason why this jump has to land at that particular point in § 922(g). That is petitioner's first sleight of hand. But there is another.

What petitioner and those who have pressed this leaping argument want § 922(g) to say is essentially this: Whoever knowingly is an illegal alien and possesses a firearm shall be fined and/or imprisoned if his possession of the gun was in or affecting interstate commerce. If we had before us a provision that reads like that, there would be a strong textual argument that a defendant's status as an illegal alien must actually be known to him. That is essentially what we held in Flores-Figueroa v. United States , 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). But when the term "knowingly" is excised from § 924(a)(2) and inserted at the beginning of § 922(g), what we get is something quite different:

Whoever knowingly ... It is unlawful for any person ... who, being an alien-is illegally or unlawfully in the United States ... to possess in or affecting commerce, any firearm or ammunition ....

Congress did not-and certainly would not-enact a statute that reads like that. To convert this garbled conglomeration into intelligible prose, editing is obviously needed, and the editing process would compel the editor to make decisions with substantive implications that could hardly go unnoticed. Here is a way of amalgamating § 924(a)(1) and § 922(g) that minimizes *2204the changes in the language of the two provisions:

Whoever knowingly ... It is unlawful for any person ... who, being an alien-is illegally or unlawfully in the United States ... and possesses in or affecting commerce, any firearm or ammunition ... [commits a crime punishable by ....]

The most natural reading of this version is that the defendant must know only that he is an alien, not that his presence in the country is illegal or unlawful. And under this version, it is not even clear that the alien's possession of the firearm or ammunition must be knowing-even though everyone agrees that this is required.

Here are two other possibilities that require more changes. The first is this:

Whoever knowingly ... It is unlawful for any person ... who, being an alien who -is illegally or unlawfully in the United States ... to possesses in or affecting commerce, any firearm or ammunition ... [commits a crime punishable by ....]

The second, which differs from the first only in that the clause "who is illegally or unlawfully in the United States" is set off by commas, is this:

Whoever knowingly ... It is unlawful for any person ... who, being an alien, who -is illegally or unlawfully in the United States, ... to possesses in or affecting commerce, any firearm or ammunition ... [commits a crime punishable by ....]

A strict grammarian, noting that the clause "who is legally or unlawfully in the United States" is restrictive in the first of these versions and nonrestrictive in the second, might interpret the first to favor petitioner and the second to favor the Government. And under both of these versions, it is again unclear whether a defendant's possession of the firearm or ammunition must be knowing.

All of the versions discussed so far place the term "knowingly" at the beginning of our transformed version of § 922(g), but as noted, there is no reason why this term's leap from § 924(a)(2) must land at that point. So our new version of § 922(g) could just as logically read like this:

Whoever ... It is unlawful for any person ... who, being an alien who -is illegally or unlawfully in the United States ... to knowingly possesses in or affecting commerce, any firearm or ammunition ... [commits a crime punishable by ....]

That would make it clear that the long-established interpretation of § 922(g) is correct.

What these possibilities show is that any attempt to combine the relevant language from § 924(a)(2) with the language of § 922(g) necessarily entails significant choices that are not dictated by the text of those provisions. So the purportedly textualist argument that we were sold at the certiorari stage comes down to this: If §§ 922(g) and 924(a)(2) are arbitrarily combined in the way that petitioner prefers, then, presto chango, they support petitioner's interpretation. What a magic trick!

B

The truth behind the illusion is that the terms used in §§ 924(a)(2) and 922(g), when read in accordance with their use in ordinary speech, can easily be interpreted to treat the question of mens rea in at least four different ways.

First , the language of §§ 924(a)(2) and 922(g) can be read to require that a defendant know that his conduct is a violation of § 922(g). In ordinary speech, to knowingly violate a rule may mean to violate a known *2205rule. ("He was told it is forbidden to smoke in the restroom of a plane, but he knowingly did so.") Neither petitioner nor the Government suggests that this is the proper interpretation of §§ 922(g) and 924(a)(2), but their reason is not based on the plain or ordinary meaning of the statutory text. Instead, it rests on an inference about congressional intent that, in turn, is based on a drafting convention, namely, that where Congress wants to require proof that a criminal defendant knew his conduct was illegal, it specifies that the violation must be "willful." In ordinary speech, "willfulness" does not require or even suggest knowledge of illegality. See Webster's Third New International Dictionary 2617 (1976). But we have construed the term as used in statutes to mean the "intentional violation of a known legal duty." United States v. Bishop , 412 U.S. 346, 360, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). Thus, the pointed use of the term "knowingly," as opposed to "willfully," in § 922(g), provides a ground to infer that Congress did not mean to require knowledge of illegality.

Second , a "knowing" violation could require knowledge of every element that makes up the offense. As applied to § 922(g), that would mean that the Government would have to prove that the defendant: (1) knew that he is an alien "illegally or unlawfully in the United States," (2) knew that the thing he "possess[ed]" was "a firearm or ammunition," and (3) knew that what he did was "in or affecting commerce." But again, the parties (and the majority) disclaim this reading because, they contend, the mens rea requirement does not apply to the interstate-commerce element of the offense. To reach this conclusion, however, neither the parties nor the majority relies on the text. How could they? If positioning the term "knowingly" at the beginning of a list of elements (or incorporating it through a separate provision) means that it applies to every element, then it would have to apply to the interstate-commerce element just like the others.

Once again, the conclusion that "knowingly" does not apply to the interstate-commerce element is not based on any rule of English usage but on yet another inference about congressional intent: that the question whether a defendant knew that his act of possessing a gun or ammunition was "in or affecting commerce" is simply not the sort of question that Congress wanted a jury to decide. The conclusion is sound, see, e.g. , Luna Torres v. Lynch , 578 U.S. ----, ----, 136 S.Ct. 1619, 1630-1631, 194 L.Ed.2d 737 (2016). But the inference that this is not what Congress intended is in no way compelled by the text of § 922(g), which simply includes the jurisdictional element among the other elements of the crime with no textual indication that Congress meant for it to be treated differently.2

Third , a "knowing" violation could require knowledge of both the conduct and status elements of the offense (but not the jurisdictional element). This is the reading that petitioner advocates and that the majority adopts. Yet again, this interpretation is not based on the text of the provisions but on two other factors: the inference about congressional intent just discussed and the assumption that Congress, had it *2206incorporated the term "knowingly" into § 922(g), would have placed it at the beginning of that provision. As I have explained, there is no textual basis for that assumption.

Fourth , a "knowing" violation could require knowledge of the conduct element-the possession of a firearm or ammunition-but not the others. Putting aside the question of the jurisdictional element, that is how one would naturally read § 922(g) if Congress had incorporated the knowledge requirement into § 922(g) after the status element and just before the conduct element. Of course, Congress did not do that-but neither did it place "knowingly" at the beginning of the list of elements.

As these competing alternatives show, the statutory text alone does not tell us with any degree of certainty the particular elements of § 922(g) to which the term "knowingly" applies. And once it is recognized that the statutory text does not specify the mens rea applicable to § 922(g)'s status element, there is no reason to assume that what Congress wanted was either a very high mens rea requirement (actual knowledge) or no mens rea at all. See infra , at 2212. However, if we limit ourselves to those options, as the parties and the majority assume we must, the latter is more likely.

C

1

That is so for at least six reasons. First , in no prior case have we inferred that Congress intended to impose a mens rea requirement on an element that concerns the defendant's own status. Nor has petitioner pointed to any statute with text that plainly evinces such a congressional intent. Instead, in instances in which Congress has expressly incorporated a mens rea requirement into a provision with an element involving the defendant's status, it has placed the mens rea requirement after the status element. For example, 18 U.S.C. § 2251(b) punishes any "person having custody or control of a minor who knowingly permits such minor to engage in ... sexually explicit conduct for the purpose of producing any visual depiction of such conduct." To show a violation, the Government need not prove that the defendant knew that the person under his custody or control was a minor. Even where the issue of a defendant's status is open and shut, Congress has taken pains to place the mens rea requirement so that it clearly does not apply to the status element. Thus, 18 U.S.C. § 1924(a) punishes an "officer, employee, contractor, or consultant of the United States [who] knowingly removes [classified] documents or materials without authority." And 21 U.S.C. § 861(a) prohibits "any person at least eighteen years of age [from] knowingly and intentionally ... receiv[ing] a controlled substance from a person under 18 years of age." So what the majority has done in this case is groundbreaking.

Second , there are sound reasons for treating § 922(g)'s status element like its jurisdictional element. The parties agree that federal criminal statutes presumptively do not require proof that an accused knew that his conduct satisfied a jurisdictional element, and our cases support this proposition. See Luna Torres, 578 U.S. ----, 136 S.Ct. 1619, 194 L.Ed.2d 737 ; United States v. Yermian , 468 U.S. 63, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984) ; United States v. Feola , 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). We have never provided a comprehensive explanation of the basis for this presumption, but our decision in Feola, which concerned the offense of assaulting a federal officer in violation of 18 U.S.C. § 111, is instructive. Agreeing with the interpretation that had been adopted with "practical unanimity"

*2207by the courts of appeals, Feola held that an accused need not be shown to have been aware of his victim's status. We inferred that this is what the statute means because requiring proof of knowledge would undermine the statute's dual objectives of protecting federal officers and preventing the obstruction of law enforcement. 420 U.S. at 679, 95 S.Ct. 1255.

A similar consideration appears to provide the basis for the conclusion that a § 922(g) defendant need not know that his possession of a gun is "in or affecting commerce." Whether or not conduct satisfies that requirement involves a complicated legal question; requiring proof of such knowledge would threaten to effectively exempt almost everyone but students of constitutional law from the statute's reach; and that would obviously defeat the statute's objectives.

The reason for the rule exempting knowledge of jurisdictional elements supports the conclusion that knowledge of § 922(g)'s status element is also not required. Whether a defendant falls into one of the § 922(g) categories often involves complicated legal issues, and demanding proof that a defendant understood those issues would seriously undermine the statute's goals.

Take the category defined in § 922(g)(4), which applies to a person who has been "adjudicated as a mental defective," a term that is defined by regulation to mean

"(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:

"(1) Is a danger to himself or to others; or

"(2) Lacks the mental capacity to contract or manage his own affairs." 27 CFR § 478.11(a) (2019).

Congress thought that persons who fall into this category lack the intellectual capacity to possess firearms safely. Is it likely that Congress wanted § 922(g) to apply only to those individuals who nevertheless have the capacity to know that they fall within the complicated definition set out in the regulation? If a person has been found by a court to present a "danger ... to others" due to mental illness or incompetency, should he escape the reach of § 922(g) because he does not know that a court has so found?

Or consider the category defined by § 922(g)(8), which applies to a person

"who is subject to a court order that-

"(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

"(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

"(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

"(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury ...."

Under this reticulated provision, does the majority's interpretation require proof beyond a reasonable doubt that the defendant knew, when he possessed the gun or ammunition, (1) that his restraining order had been issued after a hearing, (2) that he had received actual notice of the hearing, *2208(3) that he had been given an opportunity to participate at the hearing, (4) that the order covered harassing, stalking, or threatening, (5) that the person protected by the order qualified as his "intimate partner," and (6) that the order explicitly prohibited the "use, attempted use, or threatened use of physical force"? Did Congress want a person who terrorized an intimate partner to escape conviction under § 922(g) by convincing a jury that he was so blinded by alcohol, drugs, or sheer rage that he did not actually know some of these facts when he acquired a gun?

What about the category defined by § 922(g)(9), which covers a person "who has been convicted in any court of a misdemeanor crime of domestic violence"? Did Congress want this provision to apply only to those abusers who actually know that an offense for which they were convicted falls within the complicated definition of a "crime of domestic violence"? The Members of this Court have been unable to agree on the meaning of that concept. Is it limited to offenses that have an element requiring proof that the abuser had a domestic relationship with the victim? In United States v. Hayes , 555 U.S. 415, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009), the majority said no, but THE CHIEF JUSTICE and Justice Scalia disagreed. Can a conviction qualify if the offense required only recklessness? In Voisine v. United States , 579 U.S. ----, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016), the Court said yes, but Justice THOMAS and Justice SOTOMAYOR dissented. Does this provision apply if only slight force is required for conviction by the misdemeanor provision under which the defendant was convicted? Again, the Members of the Court have disagreed. Compare United States v. Castleman , 572 U.S. 157, 162, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014) (opinion of the Court), with id ., at 175, 134 S.Ct. 1405 (opinion of Scalia, J.). If the Justices of this Court, after briefing, argument, and careful study, disagree about the meaning of a "crime of domestic violence," would the majority nevertheless require the Government to prove at trial that the defendant himself actually knew that his abuse conviction qualified? Can this be what Congress had in mind when it added this category in 1996 to combat domestic violence?

Serious problems will also result from requiring proof that an alien actually knew -not should have known or even strongly suspected but actually knew -that his continued presence in the country was illegal. Consider a variation on the facts of the present case. An alien admitted on a student visa does little if any work in his courses. When his grades are sent to him at the end of the spring semester, he deliberately declines to look at them. Over the summer, he receives correspondence from the college, but he refuses to open any of it. He has good reason to know that he has probably flunked out and that, as a result, his visa is no longer good. But he doesn't actually know that he is not still a student. Does that take him outside § 922(g)(8) ? Is it likely that this is what Congress wanted?

That is most doubtful. Congress enacted § 922(g)'s status-based restrictions because of its judgment that specific classes of people are "potentially irresponsible and dangerous" and therefore should be prohibited from owning or possessing firearms and ammunition. Barrett v. United States , 423 U.S. 212, 218, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976). It is highly unlikely that Congress wanted defendants to be able to escape liability under this provision by deliberately failing to verify their status.

Third , while the majority's interpretation would frustrate Congress's public safety objectives in cases involving some of *2209the § 922(g) status categories, in prosecutions under the most frequently invoked category, possession by a convicted felon, the majority's interpretation will produce perverse results. A felony conviction is almost always followed by imprisonment, parole or its equivalent, or at least a fine. Juries will rarely doubt that a defendant convicted of a felony has forgotten that experience, and therefore requiring the prosecution to prove that the defendant knew that he had a prior felony conviction will do little for defendants. But if the prosecution must prove such knowledge to the satisfaction of a jury, then under our decision in Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), it is questionable whether a defendant, by offering to stipulate that he has a prior conviction, can prevent the prosecution from offering evidence about the nature of that offense. And the admission of that information may work to a § 922(g) defendant's detriment.

Old Chief recognized that a party is generally entitled to admit evidence to prove a necessary fact even if the opposing party offers to stipulate to that fact, id ., at 186-190, 117 S.Ct. 644, but the Court held that a § 922(g) defendant's offer to stipulate to the fact that he had a prior felony conviction precluded the prosecution from offering evidence about the identity of that offense. This holding appears to rest on the understanding that § 922(g) requires proof of status but not of knowledge. See id ., at 190, 117 S.Ct. 644 (suggesting that a prosecutor would be entitled to seek admission of evidence of the nature of a prior felony if offered to prove knowledge). So if a defendant's knowledge is now necessary, the logic of Old Chief is undermined.

Fourth , the majority's interpretation of § 922(g) would lead to an anomaly that Congress is unlikely to have intended. Another provision of § 922 -i.e. , § 922(d)(5)(A) -prohibits firearms sellers from selling to persons who fall within a § 922(g) category, but this provision does not require proof that the seller had actual knowledge of the purchaser's status. It is enough if the seller had "reasonable cause" to know that a purchaser fell into a prohibited category. A person who falls into one of the § 922(g) categories is more likely to understand his own status than is a person who sells this individual a gun. Accordingly, it is hard to see why an individual who may fall into one of the § 922(g) categories should have less obligation to verify his own situation than does the person who sells him a gun. Yet that is where the majority's interpretation leads.

Fifth , the legal landscape at the time of § 922(g)'s enactment weighs strongly against the majority's reading. Long before Congress added the term "knowingly" to § 924(a)(2), federal law prohibited certain categories of people from possessing firearms. See Federal Firearms Act, 52 Stat. 1250; Act of Oct. 3, 1961, Pub. L. 87-342, 75 Stat. 757 ; Omnibus Crime Control and Safe Street Act of 1968, Pub. L. 90-351, 82 Stat. 197 ; Gun Control Act of 1968, Pub. L. 90-618, 82 Stat. 1213, note following 18 U.S.C. § 921. These predecessors of § 922(g) did not expressly include any mens rea requirement, but courts generally interpreted them to require proof that a defendant acted knowingly in receiving, transporting, or possessing a firearm. The courts did not, however, require proof that a defendant knew that he fell within one of the covered categories or that his conduct satisfied the statutes' interstate-commerce requirement. See, e.g., United States v. Santiesteban , 825 F.2d 779, 782-783 (CA4 1987) ; United States v. Schmitt , 748 F.2d 249, 252 (CA5 1984) ; United States v. Oliver , 683 F.2d 224, 229 (CA7 1982) ;

*2210United States v. Lupino , 480 F.2d 720, 723-724 (CA8 1973) ; United States v. Pruner , 606 F.2d 871, 873-874 (CA9 1979).3

During this same period, many States adopted similar laws,4 and no State's courts interpreted such a law to require knowledge of the defendant's status. See, e.g., People v. Nieto , 247 Cal.App.2d 364, 368, 55 Cal.Rptr. 546, 549 (1966). People v. Tenorio , 197 Colo. 137, 144-145, 590 P.2d 952, 957 (1979) ; State v. Harmon , 25 Ariz.App. 137, 139, 541 P.2d 600, 602 (1975) ; State v. Heald , 382 A.2d 290, 297 (Me. 1978) ; Williams v. State , 565 P.2d 46, 49 (Okla. Crim. App. 1977).

All this case law formed part of the relevant backdrop of which we assume Congress was aware when it enacted § 924(a)(2)'s mens rea requirement in 1986. See Firearms Owners' Protection Act, 100 Stat. 449, note following 18 U.S.C. § 921. "We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent." Ryan v. Valencia Gonzales , 568 U.S. 57, 66, 133 S.Ct. 696, 184 L.Ed.2d 528 (2013) (internal quotation marks omitted). Where all the Federal Courts of Appeals and all the state courts of last resort to have interpreted statutes prohibiting certain classes of persons from possessing firearms agreed that knowledge of status was not required, it is fair to expect Congress to legislate more clearly than it has done here if it seeks to deviate from those holdings. Adding the mens rea provision in § 924(a)(2) "clarif[ied]" that knowledge is the required mens rea with respect to a defendant's conduct, ante, at 2199, but it did not indicate any disagreement with the established consensus that already applied that mens rea to § 922(g)'s conduct element but not to the element of the defendant's status.5

Finally, the judgment of the courts of appeals should count for something. In Feola , the Court cited the "practical unanimity" of the courts of appeals, 420 U.S. at 676, 95 S.Ct. 1255 ; see also Luna Torres , 578 U.S., at ----, ----, 136 S.Ct., at 1630-1631, and here, even after Congress added the mens rea requirement, all the courts of appeals to address the question have held that it does not apply to the defendant's status.6 In addition, the decisions *2211of the highest courts of States with laws similar to § 922(g) have continued to unanimously interpret those provisions in the same way.7

2

Petitioner contends that all the Courts of Appeals to address the question now before us have gone astray because they have not given proper weight to the presumption that a mens rea requirement applies to every element of an offense that results in the criminalization of otherwise innocent conduct. See Elonis v. United States , 575 U.S. ----, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015) ; United States v. X-Citement Video, Inc. , 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) ; Morissette v. United States , 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). This concern, which also animates much of the majority's analysis, is overstated.

The majority does not claim that the Constitution requires proof of mens rea for every status element or every element that has the effect of criminalizing what would otherwise be lawful conduct. Nor does it suggest that the presumption it invokes is irrebuttable for any other reason. That would be a radical conclusion because it has long been accepted that some status elements do not require knowledge. Laws that aim to protect minors, for example, often do not require proof that an offender had actual knowledge of the age of a minor who is the victim of a crime. " 'The majority rule in the United States is that a defendant's knowledge of the age of a victim is not an essential element of statutory rape.... A defendant's good faith or reasonable belief that the victim is over the age of consent is simply no defense.' " United States v. Gomez-Mendez , 486 F.3d 599, 603, n. 7 (CA9 2007) (citation omitted). Similarly, 18 U.S.C. § 2243(a) makes it a crime, punishable by up to 15 years' imprisonment, knowingly to engage in a sexual act with a person who is between the ages of 12 and 16 and is less than four years younger than the accused. This statute expressly provides that knowledge of the victim's age need not be proved. § 2241(d). I do not understand the majority to suggest that these laws, which dispense with proof of knowledge for public safety purposes, are invalid.

Not only is there no blanket rule requiring proof of mens rea with respect to every element that distinguishes between lawful and unlawful conduct, but petitioner exaggerates in suggesting that the so-called jurisdictional elements in federal criminal statutes comply with this "rule" because they do no more than provide a hook for prosecuting a crime in federal court. These elements often do more than that. They sometimes transform lawful conduct into criminal conduct: In a State that chooses to legalize marijuana, possession is wrongful only if the defendant is on federal property. Cf. 41 CFR § 102-74.400 (2018). Jurisdictional elements may also drastically increase the punishment for a wrongful act. For example, the statute at issue in Feola , which criminalizes assault on a federal officer, doubles the possible prison sentence that would have been applicable to simple assault. Compare 18 U.S.C. § 111 and § 113. Just like a status element, a jurisdictional element can make the difference between some penalty and no penalty, or between significantly greater and lesser penalties.

Since a legislative body may enact a valid criminal statute with a strict-liability element, the dispositive question is whether it has done so or, in other words, whether the presumption that petitioner invokes *2212is rebutted. This rebuttal can be done by the statutory text or other persuasive factors. See Liparota v. United States , 471 U.S. 419, 425, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (applying presumption "[a]bsent indication of contrary purpose in the language or legislative history"); X-Citement Video , 513 U.S. at 70-72, 115 S.Ct. 464 (discussing statutory context in reaching conclusion); Flores-Figueroa , 556 U.S. at 652, 129 S.Ct. 1886 ; id ., at 660, 129 S.Ct. 1886 (ALITO, J., concurring in part and concurring in judgment). And here, for the reasons discussed above, § 922(g) is best interpreted not to require proof that a defendant knew that he fell within one of the covered categories.

I add one last point about what can be inferred regarding Congress's intent. Once it becomes clear that statutory text alone does not answer the question that we face and we are left to infer Congress's intent based on other indicators, there is no reason why we must or should infer that Congress wanted the same mens rea to apply to all the elements of the § 922(g) offense. As we said in Staples v. United States , 511 U.S. 600, 609, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), "different elements of the same offense can require different mental states." And if Congress wanted to require proof of some mens rea with respect to the categories in § 922(g), there is absolutely no reason to suppose that it wanted to impose one of the highest degrees of mens rea -actual knowledge. Why not require reason to know or recklessness or negligence? To this question, neither petitioner nor the majority has any answer.

D

Because the context resolves the interpretive question, neither the canon of constitutional avoidance nor the rule of lenity can be invoked to dictate the result that the majority reaches. As to the canon, we have never held that the Due Process Clause requires mens rea for all elements of all offenses, and we have upheld the constitutionality of some strict-liability offenses in the past. See United States v. Freed , 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) ; United States v. Dotterweich , 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943) ; United States v. Balint , 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922) ; United States v. Behrman , 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922). In any event, if the avoidance of a serious constitutional question required us to infer that some mens rea applies to § 922(g)'s status element, that would hardly justify bypassing lower levels of mens rea and going all the way to actual knowledge.

As for the rule of lenity, we resort to it "only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended." Muscarello v. United States , 524 U.S. 125, 138, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (alterations and internal quotation marks omitted). And what I have just said about the constitutional avoidance canon applies equally to lenity: It cannot possibly justify requiring actual knowledge.

III

Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g).8 It is true that many pleaded *2213guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating § 922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies. Bousley v. United States , 523 U.S. 614, 618-619, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court from a distant place of confinement, and make a credibility determination as to the prisoner's subjective mental state at the time of the crime, which may have occurred years in the past. See United States v. Garth , 188 F.3d 99, 109 (CA3 1999) ; United States v. Jones , 172 F.3d 381, 384-385 (CA5 1999) ; United States v. Hellbusch , 147 F.3d 782, 784 (CA8 1998) ; United States v. Benboe , 157 F.3d 1181, 1184 (CA9 1998). This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of "fixing." Cf. Mathis v. United States , 579 U.S. ----, ---- - ----, 136 S.Ct. 2243, 2269-2270, 195 L.Ed.2d 604 (2016) (ALITO, J., dissenting).

Nor is there any reason to think that the Court's reasoning here will necessarily be limited to § 922(g). The Court goes out of its way to point out that it is not taking a position on the applicability of mens rea requirements in other status-based offenses, even where the statute lists the status before the mens rea . Ante, at 2197.

* * *

The majority today opens the gates to a flood of litigation that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubting the defendant's knowledge. The majority's interpretation of § 922(g) is not required by the statutory text, and there is no reason to suppose that it represents what Congress intended.

I respectfully dissent.

O’Connell, J.

The defendant was initially charged with larceny in the first degree in violation of General Statutes §§ 53a-122 (a) (2)1 and 53a-119,2 and criminal coercion in violation of General Statutes § 53a-49 (a) (2). Following a jury trial, he was convicted of the lesser included offense of larceny in the third degree in violation of General Statutes § 53a-1243 and acquitted of the coercion charge. The defendant appeals from his larceny conviction. The defendant claims that (1) there was insufficient evidence to support the larceny conviction and (2) the trial court’s jury instruction violated his constitutional rights to due process of law and a fair trial. We reverse.

The jury could have reasonably found the following facts. The defendant was the landlord of commercial *370property at 1372 Summer Street in Stamford. One of the defendant’s tenants was Executive Decisions Support, Inc., a computer software company headed by Catherine Topp. Topp, in her capacity as president of the company, personally signed the lease with the defendant. The lease contained a default clause authorizing the defendant to enter the tenant’s premises, seize the tenant’s personal property and sell it as a way of recovering unpaid rent or other charges.4 The defendant claimed Topp had failed to pay her rent for March, April and May, 1990.

On Saturday May 5, 1990, the defendant entered Topp’s office by picking the lock. He proceeded to remove two of Topp’s computers and attached printers. On Monday May 7, 1990, Topp arrived at work and noticed that the lock on her office door had been tampered with. Upon entering and noticing her computers were missing, Topp called the Stamford police. After the completion of an initial investigation at the scene by Officer Frank Pica, Topp telephoned the defendant, who admitted that he had taken her computers as a consequence of her failure to pay three months rent. Pica then took the phone from Topp and identified himself. The defendant advised Pica that he was Topp’s landlord and expressed his belief that his actions were *371proper and legal. Upon hearing this, Pica expressed doubt as to the lawfulness of the defendant’s conduct, at which point the defendant reiterated his belief that his actions were in accordance with his lease.

At this point, Pica called his supervisor, Sergeant Ralph Geter. Geter arrived shortly thereafter and telephoned the defendant, who again identified himself as Topp’s landlord and again admitted having taken the computers in question. Geter informed the defendant that he had no right under the law to confiscate Topp’s computer equipment and that he should make arrangements with Topp to return the goods. No such arrangements were made and the defendant sold the computers on May 23, 1990.

On May 25,1990, a detective contacted the defendant and inquired whether they could meet to discuss the matter as part of his investigation. As he had from the start, the defendant admitted during this telephone conversation that he had taken and retained the computers pursuant to his lease. On June 6, 1990, the defendant met with the detective at the Stamford police station and was asked for a formal statement. The defendant requested an attorney and the conversation ended. The defendant was subsequently arrested on June 28, 1990.

The defendant first claims that the state did not prove beyond a reasonable doubt that he was guilty of larceny. It is fundamental jurisprudence that the state bears the burden of proof beyond a reasonable doubt of each essential element of the crime charged. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978).

“When a claim on appeal challenges the sufficiency of the evidence, we undertake a two-part task. We first review the evidence presented at the trial, construing *372it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. King, 216 Conn. 585, 600, 583 A.2d 896 (1990); State v. Glenn, 30 Conn. App. 783, 791, 622 A.2d 1024 (1993).

Larceny is defined in General Statutes § 53a-119 as follows: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...” This crime has three elements and all three must be established beyond a reasonable doubt. It must be shown that (1) there was an intent to do the act complained of, (2) the act was done wrongfully, and (3) the act was committed against an owner. This appeal focuses on the elements of “intent” and “wrongfully.” Because larceny is a specific intent crime, the state must show that the defendant acted with the subjective desire or knowledge that his actions constituted stealing. A specific “intent to deprive another of property or to appropriate the same to himself ... is an essential element of larceny . . . and as such must be proved beyond a reasonable doubt by the state.” (Internal quotation marks omitted.) State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 356 (1985).

“The ‘animus furandi,’ or intent to steal, is an essential element of the crime of larceny at common law.” 50 Am. Jur. 2d, Larceny § 35 (1970). Hornbook law articulates the same premise. “Since the taking must be with felonious intent . . . taking under a bona fide claim of right, however unfounded, is not larceny. . . . [Although ignorance of the law is, as a rule, no excuse, it is an excuse if it negatives the existence of a specific *373intent. Therefore, even if the taker’s claim of right is based upon ignorance or mistake of law, it is sufficient to negative a felonious intent. A fortiori, a mistake of fact, if it is the basis of a bona fide claim of right, is sufficient.” J. Miller, Handbook of Criminal Law (1934) § 114 (a), p. 367; see also 2 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 8.5 (a), p. 358.

“One who takes property in good faith, under fair color of claim or title, honestly believing that ... he has a right to take it, is not guilty of larceny even though he is mistaken in such belief, since in such case the felonious intent is lacking. . . . The general rule applies . . . to one who takes it with the honest belief that he has the right to do so under a contract . . . .” 50 Am. Jur. 2d 203, Larceny § 41 (1970).

Particularly apposite to the present case is the comment in American Jurisprudence that, “[i]t is generally held that because of lack of a felonious intent, one is not guilty of larceny who, in the honest belief that he has the right to do so, openly and avowedly takes the property of another without the latter’s consent, as security for a debt bona fide claimed to be due him by the owner, or even to apply or credit it to the payment thereof.” Id., 205-206.

“A defendant who acts under the subjective belief that he or she has a lawful claim on property lacks the required felonious intent to steal. Such a defendant need not show his mistaken claim of right was reasonable, since an unreasonable belief that he had a right to take another’s property will suffice so long as he can establish his claim was made in good faith.” 50 Am. Jur. 2d, Larceny § 41 (1993 Sup.), relying on People v. Romo, 220 Cal. App. 3d 514, 269 Cal. Rptr. 440 (1990).

Connecticut case law is consistent with other jurisdictions and the text writers quoted herein. As far back as 1902, our Supreme Court recognized that the mere *374taking of another’s property was not sufficient to prove larceny. The taking must be accompanied by a felonious intent to deprive the owner of its use. If a person takes property in the honest, though mistaken belief, that he has a right to do so, he has not committed larceny. State v. Main, 75 Conn. 55, 57, 52 A. 257 (1902).

Our Supreme Court has also considered the scenario of a landlord who, like the defendant in the present case, seizes his tenant’s property as security for a debt. State v. Sawyer, 95 Conn. 34, 35-36, 110 A. 461 (1920). In Sawyer, a landlady took possession of a tenant’s handbag on the ground that the tenant was liable to her for damage done to the demised premises. The court held that the defendant had not committed a larceny because she believed that her claim justified refusal to return the handbag unless the tenant paid for the damage. Id., 38. The court based its decision on the absence of felonious intent and the presence of a color of right. The court held that “[o]ne is not guilty of theft without consciousness of the wholly unlawful and inexcusable nature of his act. The grave character of the necessary intent makes that clear. His belief in his right to take the thing involved, even though a mistaken belief, or one entertained upon insufficient grounds, is essentially inconsistent with the presence of an intent to steal, and the terms ‘colour of right or excuse’ obviously demand a construction consonant with that point of view.” (Emphasis added.) Id. The Sawyer court supported its decision with a citation from 2 Bishop’s New Crim. Law (8th Ed.) § 849, p. 496. “ ‘[0]ne who takes another’s goods to compel him, though in an irregular way, to do what the law requires him to do with them — namely, pay his debt — is on no legal principle a felon, though doubtless he is a trespasser. ... In reason, one has no more privilege to steal the effects of his debtor than those of any other person. But a trespass is not theft, except when done *375with felonious intent. And he who carries away a thing openly, and not clandestinely, to enforce a just claim, not for fraud, not to injure the owner, but to compel him to do what the law requires, is not a thief, whatever the extent of the wrong viewed otherwise.’ ” State v. Sawyer, supra, 39.

In the present case, the defendant claims that he did not possess the specific felonious intent to commit larceny but rather acted in good faith pursuant to a lease that gave him, as the landlord, authority to enter the premises, impound the lessee’s property, sell it and apply the proceeds to the unpaid rent or other charges. The state claims that it introduced evidence from which the jury could reasonably have inferred that the defendant intended to steal the computer equipment.

We hold that there was insufficient evidence introduced at trial to prove that the defendant knew that he had no right to take the lessee’s computers. During the initial phone conversation with Topp, the defendant made no attempt to conceal either his identity or that he had in fact taken the computers. The defendant emphatically stated during this conversation that the default clause in the lease provided him with the authority to impound her property based on her failure to pay the three months rent due. Moreover, the officers testifying at trial each stated that the defendant never wavered from his contention that his actions were lawful, even when faced with the threat of criminal prosecution. The defendant’s unfaltering and consistent statements to all parties involved that he acted in good faith in seizing Topp’s computers were not contradicted by the testimony of any witness.

The state cites State v. Banet, 140 Conn. 118, 98 A.2d 530 (1953), in support of its claim that the defendant possessed the requisite criminal intent. In Banet, the defendant, a used car dealer, signed over to a finance *376company to whom he was indebted all of his interest in a number of retail sales installment contracts. Id., 120-21. After two purchasers defaulted, the defendant was found guilty of wrongfully repossessing their vehicles in violation of the assignment agreement. In rejecting the defendant’s claim that he believed in good faith that he had a right to retake the automobiles, the court held that the state had introduced evidence showing the defendant knew that his actions were unlawful. This knowledge was evidenced by the assignment agreement itself, which explicitly transferred title to the automobiles to the finance company. Furthermore, the court viewed the finance company’s refusal to sign a postassignment agreement whereby the defendant attempted to retain the right to repossess the vehicles as strong proof that the defendant knew that his actions were illegal. Id., 122-23.

Unlike Banet, the defendant’s claim that he acted in good faith was not countered by any evidence, direct or circumstantial, that he intended to steal the computers. The state contends, however, that the defendant’s weekend entry into Topp’s office by picking the lock and his subsequent impounding of the computers without leaving a note was enough evidence from which the jury could have reasonably found the requisite intent. Significantly, none of the foregoing evidence contradicted the defendant’s claim that he acted in good faith in taking the computers based on the default clause in the lease. In fact, the defendant testified that he entered the office on the weekend so as to avoid an awkward confrontation. When asked by Topp where the computers were on the following Monday, the defendant concealed nothing. Notwithstanding the state’s claim to the contrary, the record is devoid of any evidence that the jury could have reasonably relied upon in finding the defendant acted with the requisite culpability. The state's bald and conclusory assertion *377that the jury simply rejected the defendant’s consistent claim that the rental agreement served as justification for his action is not enough to prove beyond a reasonable doubt the specific intent requirement for larceny.

Moreover, the state contends that even if the defendant believed in good faith that he had the right to take his tenant’s personal property to secure overdue rent payments, once he was told by three members of the police force that he was acting illegally, he could no longer reasonably maintain an honest though mistaken belief that he was acting lawfully. We do not agree. Police officers are not imbued with the authority or prerogative to declare provisions of civil contracts void, thereby converting good faith to a felonious intent.

In its brief, the state argues that the passage of time since the Sawyer case has dimmed its effect and suggests that we disregard it as a precedent. Even if we agreed that in some instances time may diminish a precedent, the present case would not be an appropriate situation in which to apply such theory. The felonious taking requirement has not given way to more modern legal concepts. “Although the present statute has broadened the scope of larceny, the element of intent has been retained from the prior statute and case law. Larceny continues to require ‘the existence of a felonious intent in the taker . . . .’ ” State v. Marra, 174 Conn. 338, 342, 387 A.2d 550 (1978). Furthermore, in drafting General Statutes § 53a-119, the penal code commission expressly referred to Sawyer. “The question of wrongfulness is meant to incorporate and to be read in the light of the common law standards enunciated in such cases as . . . State v. Sawyer, [supra].” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969), p. 39.

*378We agree with the defendant that there was insufficient evidence to support his conviction of larceny in the third degree. Because our decision on the defendant’s first claim is dispositive of the appeal, we do not reach the defendant’s second claim.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty of larceny in the third degree.

In this opinion the other judges concurred.

TERNUS, Justice.

The defendant, William Schminkey, entered Alford pleas to the offenses of homicide by vehicle, see Iowa Code § 707.6A(.1) (1997), and theft of a motor vehicle, see id. §§ 714.1, .2(2). See generally North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970) (holding that an accused may consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime). The court sentenced him to consecutive ten-year and five-year terms of imprisonment, respectively. Schminkey now claims that the record lacks a sufficient factual basis for a finding that he was guilty of the theft offense. He also claims his counsel rendered ineffective assistance in failing to object to the prosecutor’s breach of the plea agreement with respect to the State’s sentencing recommendations.

We agree that the record does not show a factual basis for Schminkey’s conviction of the crime of theft of a motor vehicle. This conclusion makes it unnecessary to consider Schminkey’s claim that the State breached the plea agreement. Accordingly, we vacate the sentence on the theft conviction and remand for further proceedings.

I. Factual and Procedural Back-grcmnd.

The underlying facts of the tragic episode culminating in Schminkey’s convictions are undisputed. Because the ultimate focus in this case is on the record before the district court at the time of the guilty plea proceedings, we recite the facts as they appeared to the court during that phase of the case.

Schminkey spent the evening of May 17, 1997 drinking, first at a party and then at a bar. Although Schminkey has no recollection of leaving the bar or of what happened after he left, witnesses established that he departed the bar and then drove a pickup owned by Dale Kimm, a man Schminkey did not know. Schminkey did not have Kimm’s permission to drive the pickup. Several witnesses observed the pickup being driven erratically and in excess of the speed limit. -They saw the vehicle heading north, approaching a controlled intersection in the town of Van Horne at an excessive rate of speed. The pickup went through the intersection without slowing down and struck two vehieleSi facing south, that were stopped at the intersection stop sign. The driver and only occupant of the first vehicle, nineteen-year-old Jason Kray, died en route to the hospital.

Notwithstanding the collision, the driver of the pickup appeared to be fleeing the scene, accelerating the engine and proceeding down the road for another block or so before crashing into a fence. Witnesses who assisted in extricating Schminkey from the pickup said he smelled strongly of alcohol. A later urine test showed his blood alcohol level to be .189, significantly over the legal limit of .10. See Iowa Code § 321J.2(1).

Schminkey was charged with homicide by vehicle in violation of Iowa Code section 707.6A(1), involuntary manslaughter in violation of Iowa Code section 707.5(1), and theft of a motor vehicle in violation of Iowa Code sections 714.1 and 714.2(2). Claiming he was unable to recall the events of the evening due to his intoxication, Schminkey entered into a plea agreement with the State, whereby, in exchange for his Alford plea to the theft and homicide charges, the State would dismiss the involuntary manslaughter charge and recom*788mend that Sehminkey’s sentences on the remaining charges run concurrently.

The State dismissed the manslaughter charge. At the plea hearing, the district court made a determination that a factual basis for the pleas appeared in the record and then accepted Schminkey’s guilty pleas. Schminkey was subsequently sentenced to consecutive ten-year and five-year terms of incarceration.

Schminkey appealed, claiming his counsel rendered ineffective assistance in two ways. First, he contends his counsel should not have allowed him to plead guilty to the theft charge because there was not a factual basis for a finding that he intended to permanently deprive the owner of his vehicle. He also claims that the prosecutor breached the plea agreement because the prosecutor did not expressly state the State’s recommendation for concurrent sentences at the sentencing hearing. Schminkey asserts his counsel rendered ineffective assistance in failing to object to this breach. The court of appeals affirmed, and we granted further review.

II. General Principles Governing Ineffective-Assistance-of-Counsel Claims.

The Sixth Amendment to the United States Constitution guarantees a defendant the right to the effective assistance of counsel. See U.S. Const. amend. VI; Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). We review claims that this constitutional right has been violated de novo. See State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994).

Claims of ineffective assistance of counsel are generally preserved for postconviction relief proceedings. See id. Where the record is adequate to address the issue, however, such claims will be considered on direct appeal. See id. As will become clear, this is such a case.

The standards required to prevail on a claim of ineffective assistance of counsel are well established. The defendant must prove by a preponderance of the evidence that his “counsel failed to perform an essential duty,” and that he “was prejudiced by counsel’s error.” State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).

III. Did Trial Counsel Render Ineffective Assistance in Allowing Schminkey to Plead Guilty to the Offense of Theft of a Motor Vehicle?

The district court may not accept a guilty plea without first determining that the plea has a factual basis. See Iowa R.Crim. P. 8(2)(b); State v. Burtlow, 299 N.W.2d 665, 668 (Iowa 1980). This requirement exists even where the plea is an Alford plea. See Alford, 400 U.S. at 38 n. 10, 91 S.Ct. at 168 n. 10, 27 L.Ed.2d at 171-72 n. 10. Where a factual basis for a charge does not exist, and trial counsel allows the defendant to plead guilty anyway, counsel has failed to perform an essential duty. See Brooks, 555 N.W.2d at 448. Prejudice in such a case is inherent. See State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996) (holding that where there is no factual basis for a guilty plea, ineffective assistance of counsel is established). Therefore, our first and only inquiry is whether the record shows a factual basis for Schminkey’s guilty plea to the charge of theft of a motor vehicle. In deciding whether a factual basis exists, we consider the entire record before the district court at the guilty plea hearing, including any statements made by the defendant, facts related by the prosecutor, the minutes of testimony, and the presentence report. See Brooks, 555 N.W.2d at 448-49; State v. Fluhr, 287 N.W.2d 857, 867-68 (Iowa 1980), overruled in part on other grounds by State v. Kirchoff 452 N.W.2d 801, 805 (Iowa 1990).

The offense of theft is defined in section 714.1(1), which states that a person commits theft when he “[t]akes possession or control of the property of another, or property in the possession of another, with the *789 intent to deprive the other thereof.” (Emphasis added.) Sehminkey challenges the factual basis for the intent element of this crime.

The intent required for the commission of a theft is an intent to deprive the owner of his or her property. See Eggman v. Scurr, 311 N.W.2d 77, 79 (Iowa 1981). Sehminkey argues that this element of the crime requires proof that he intended to permanently deprive the owner of his vehicle. He contrasts the theft statute, section 714.1(1), with Iowa Code section 714.7, defining the crime of operating a vehicle without the owner’s consent. The latter statute prohibits the “possession or control of ... any self-propelled vehicle ... without the consent of the owner of such, but imthout the intent to permanently deprive the oumer thereof.” Iowa Code § 714.7 (emphasis added). This crime, operating a vehicle without the owner’s consent, is expressly made a lesser included offense of the crime of theft. See id.

Sehminkey correctly argues that an intent to permanently deprive the owner of his property is an essential element of theft under section 714.1(1). The legislature’s distinction of the crime of theft from the crime of operating a vehicle without the owner’s consent — the existence or absence of an intent to permanently deprive the owner — supports this conclusion. In addition, this interpretation of section 714.1(1) is consistent with the crime of larceny as it was defined prior to the revision of Iowa’s criminal laws in 1978. See generally Eggman, 311 N.W.2d at 80 (“Revised criminal code offenses are to be construed as altering prior law only if a legislative intent to change the prior law is clear.”); Emery v. Fenton, 266 N.W.2d 6, 8 (Iowa 1978) (stating that the criminal law revision “is primarily a restatement of [the prior] law”). Prior to the criminal code revisions, the crime of larceny, see Iowa Code § 709.1 (1977), and the separate crime of larceny of a motor vehicle, see id. § 321.82, required proof of an intent to permanently deprive the owner of the stolen property or vehicle. See Brainard v. State, 222 N.W.2d 711, 721 (Iowa 1974); State v. Boggs, 181 Iowa 358, 360, 164 N.W. 759, 760 (1917). In one of the few cases in which this court has addressed the issue of intent since the criminal code revisions, we held .that the record must demonstrate more than an intent to temporarily deprive the owner of the property in order to prove a theft. See Fluhr, 287 N.W.2d at 867.1

Because proof that the defendant acted with the specific purpose of depriving the owner of his property requires a determination of what the defendant was thinking when an act was done, it is seldom capable of being established with direct evidence. See State v. Fratzke, 446 N.W.2d 781, 783 (Iowa 1989). Therefore, the facts and circumstances surrounding the act, as well as any reasonable inferences to be drawn from those facts and circumstances, may be relied upon to ascertain the defendant’s intent. See State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995). Accordingly, we examine the record for facts and circumstances that would support an inference that Sehminkey intended to permanently take possession of the truck.

*790The record upon which the trial court could draw to determine whether a factual basis existed for Schminkey’s plea of guilty to the theft charge was minimal. Because Schminkey entered an Alford, plea, he made no admissions with respect to his commission of this crime. The county attorney made no factual statements. The presentence report had not been completed. The court merely had before it the minutes of testimony. See generally State v. Townsend, 238 N.W.2d 351, 355 (Iowa 1976) (holding factual basis for an Alford plea may be determined from the minutes).

From the minutes of testimony, it can be established that at 7 p.m. on the day of the accident, Schminkey accompanied a friend to a party where he consumed several beers. He eventually left that party and went to a bar where he drank more alcohol. Later in the evening, at approximately 10:45 p.m., Schminkey was seen driving a pickup from Blairstown to Van Horne. Minutes later, he was involved in the accident described above, and then crashed the vehicle into a fence a block or two from the accident scene. The minutes also show that the owner of the pickup had parked the vehicle in Blairstown and had not given Schminkey permission to drive it.

We find no facts or circumstances in this recitation that would allow an inference that Schminkey intended to permanently deprive the owner of his vehicle. In a similar case that arose under Iowa’s old larceny statute, this court reversed a conviction based on a guilty plea in part on the ground that the trial court could not have found a factual basis for the defendant’s guilty plea because the record did not establish a factual basis for the intent element of the crime. Brainard, 222 N.W.2d at 721 (plurality opinion). In Brainard, the defendant admitted in the plea colloquy that he took another’s automobile without permission. Id. at 720. He denied that he intended to sell the car, but he admitted that he did not intend to bring it back. Id. This court stated that “[t]he essential question as to [the defendant’s] intent is whether he intended to deprive the owner permanently of his automobile.” Id. at 721. We concluded the record did not show a factual basis for finding that the defendant had that intent. Id. Without that intent, we noted, he would at most be guilty of the lesser offense of operating a motor vehicle without the owner’s consent. Id.

Under analogous circumstances, the court of appeals has also concluded the record lacked a factual basis for a finding of intent. State v. Henning, 299 N.W.2d 909, 911 (Iowa App.1980). In Henning, the defendant pled guilty to a charge of assault with intent to inflict serious injury. Id. at 909. During the plea colloquy, he acknowledged being involved in a fight, but stated that he did not otherwise remember the event. Id. at 911. The court of appeals found the record adequate to show a factual basis for the defendant’s acts, but not to show a factual basis for the requisite intent. Id.

Other states have, under similar facts, reached the same result as did our courts in Brainard and Henning. E.g., Pottinger v. State, 122 Fla. 405, 165 So. 276, 277 (1936) (holding the evidence was insufficient to support a finding that the defendant intended to permanently deprive another of his automobile, where the record showed the defendant, after an evening of drinking, took the ear of another, which he then drove to other bars); Gibson v. State, 8 Md.App. 1, 256 A.2d 890, 892 (1969) (reversing guilty verdict on theft charge because evidence did not support finding of intent to permanently deprive owner of vehicle, where defendant took car to drive himself home after escaping from police custody); Slay v. State, 241 So.2d 362, 364 (Miss.1970) (holding evidence that defendant took another’s car and drove it around town, eventually wrecking it while being pursued by the police, did not support a finding of intent to permanently deprive the owner of his car); cf. Fluhr, *791287 N.W.2d at 866-67 (holding, in challenge to a guilty plea, that the record did not show a factual basis for the intent element of theft where the defendant merely admitted to taking car parts belonging to another and the parts were later found in the defendant’s garage, there being no indication that the defendant intended to keep the property for any particular length of time).

We acknowledge the general statements made in some of our prior cases that possession of stolen property creates an inference supporting a conviction of larceny. See State v. Rosewall, 239 N.W.2d 171, 174 (Iowa 1976); State v. Everett, 157 N.W.2d 144, 146 (Iowa 1968), overruled on other grounds by State v. Hawkins, 203 N.W.2d 555, 556 (Iowa 1973); State v. Brightman, 252 Iowa 1278, 1284, 110 N.W.2d 315, 318 (1961); State v. Girdler, 251 Iowa 868, 873, 102 N.W.2d 877, 879 (1960). In none of these cases, however, was the defendant’s intent at issue. In Brightman, a suit stolen from a dry cleaning business was discovered in the defendant’s home six months after it had been taken. 252 Iowa at 1280-81, 110 N.W.2d at 316. The defendant claimed that he had purchased the suit from an over-the-road trucker. Id. at 1285, 110 N.W.2d at 319. The element of larceny at issue in this case was whether the defendant took the suit from the cleaners; there was no discussion of his intent. The same analysis is applicable to the Roseivall and Girdler cases; the defendant’s intent was not an issue in these cases either. See Rosewall, 239 N.W.2d at 174 (“Defendants here challenge only the ‘taking’ element of the larceny charge.”); Girdler, 251 Iowa at 872-73, 102 N.W.2d at 879 (discussing sufficiency of the evidence to prove the defendant, an escapee from prison, knew that another escapee had stolen the vehicle in which the defendant was apprehended; the defendant’s intent was not mentioned as being in dispute). Finally, we also think the Everett case is not helpful. In that case, the defendant was accused of taking a vehicle from a used car lot. Everett, 157 N.W.2d at 145. The defendant claimed he had borrowed the vehicle from a bartender with whom he was acquainted. Id. at 146. Although the court discusses the sufficiency of the evidence with respect to the defendant’s “intent to steal” the vehicle, id., it is apparent from the discussion of the evidence that the real dispute was whether he took the vehicle from the used car lot or legitimately borrowed it from a friend. Thus, the court did not really focus on the precise issue that confronts us in the present case, namely, where there is an admitted taking, is that sufficient, standing alone, to support an inference of an intent to permanently deprive the owner of his vehicle.

Because the Brainard and Henning cases are more on point factually and because the courts in those cases focused on the evidence necessary to support a finding of intent, we conclude the principles applied in Brainard and Henning should govern our analysis here. Accordingly, the mere fact that Schminkey took the pickup without the owner’s consent does not give rise to an inference that he intended to permanently deprive the owner of the vehicle.

In our search for other facts or circumstances that might reveal Schminkey’s intent in taking the pickup, we find none indicating that he intended to do anything more than temporarily use the vehicle to go home or to another bar. Because Schminkey wrecked the pickup before he could dispose of it, we do not have the typical inferences that can be drawn from a defendant’s actions subsequent to the taking. Compare Slay, 241 So.2d at 364 (holding the evidence was insufficient to prove that the defendant had an intent to permanently deprive the owner of his car, stating “the extent of damage to the car was of no probative value on the issue of specific intent, since its wrecking was not purposeful”), with People v. Graham, 27 Ill.App.3d 408, 327 N.E.2d 261, 264 (1975) (finding evidence of intent to permanently deprive owner of vehicle sufficient where *792defendant had changed the license plates on the car); State v. Keeler, 238 Kan. 356, 710 P.2d 1279, 1283 (1985) (holding evidence sufficient to prove intent to permanently deprive owner of car where defendant used the vehicle for several days and then abandoned it); State v. Winkelmann, 761 S.W.2d 702, 708 (Mo.Ct.App.1988) (finding sufficient evidence of an intent to permanently deprive owner of her car where the defendant intentionally drove the car into a brick wall, inflicting severe damage to the vehicle). Furthermore, the record contains no admissions by the defendant or statements from other witnesses that would indicate Schminkey’s purpose in taking the vehicle. Under these circumstances, we conclude the record does not show a factual basis for Schminkey’s guilty plea to the charge of theft of a motor vehicle.

IV. Disposition.

Where a guilty plea has no factual basis in the record, two possible remedies exist. Where the record establishes that the defendant was charged with the wrong crime, we have vacated the judgment of conviction and sentence and remanded for dismissal of the charge. See, e.g., Hack, 545 N.W.2d at 263; State v. Schoelerman, 315 N.W.2d 67, 75 (Iowa 1982). Where, however, it is possible that a factual basis could be shown, it is more appropriate merely to vacate the sentence and remand for further proceedings to give the State an opportunity to establish a factual basis. See Burtlow, 299 N.W.2d at 670; Ryan v. Iowa State Penitentiary, 218 N.W.2d 616, 620 (Iowa 1974).

We think this case falls within the latter category. There may be additional facts and circumstances that do not appear in the minutes of testimony that would support an inference that the defendant intended to permanently deprive the pickup’s owner of his vehicle. Therefore, we vacate the sentence entered on the theft charge and remand for further proceedings at which time the State may supplement the record to establish a factual basis for the crime of theft of a motor vehicle. If a factual basis is not shown, the defendant’s plea must be set aside.

Our vacation of the sentence entered on the theft conviction makes it unnecessary to address the defendant’s claim that the county attorney breached the plea agreement by failing to recommend concurrent sentences. If a factual basis for the theft charge is established on remand, we trust that the county attorney will comply with the plea agreement by expressly recommending concurrent sentences at any future sentencing hearing.

DECISION OF COURT OF APPEALS VACATED; SENTENCE ON THEFT CHARGE VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

All justices concur except CARTER, J., and McGIVERIN, C.J., and HARRIS and LARSON, JJ., who dissent.

CARTER, Justice

(dissenting).

I dissent.

The record made before the district court during the guilty-plea proceeding adequately demonstrated a factual basis for the charge of theft of a motor vehicle. The minutes of testimony indicated that (1) the owner of a 1978 brown and tan Chevrolet pickup truck would testify that the vehicle was taken without permission on the evening of May 17, 1997; and (2) a Benton County deputy sheriff would testify that he was close enough to a fatal collision involving the stolen pickup to hear the sound of the impact and moments later arrived at the crash scene to find defendant sitting crossways, by himself, in the front seat of the missing pickup. Minutes of testimony are appropriate sources for establishing a factual basis under the decisions of this court. See State v. Fluhr, 287 N.W.2d 857, 868 (Iowa 1980), overruled on other issues by State v. Kirchoff, 452 N.W.2d 801, 804-05 (Iowa 1990); State v. Marsan, 221 N.W.2d 278, 280 (Iowa 1974).

*793When a defendant pleads guilty, strong evidence of actual guilt is not required even if the defendant protests his innocence. United States v. Tunning, 69 F.3d 107, 111-12 (6th Cir.1995). Several courts that have considered the standard that should be applied in determining the factual basis for a guilty plea have agreed that the standard should be enough evidence to withstand a directed verdict at trial. United States v. Webb, 433 F.2d 400, 403 (1st Cir.1970); In re Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132, 145 (1975); State v. Genereux, 272 N.W.2d 33, 34 (Minn.1978).

I submit that indicia of a prima facie case is the only practical standard to be employed because to require a greater showing will inappropriately • involve the court in factual determinations based on the type of abbreviated factual record that can be made available at a guilty-plea proceeding. This is particularly true in this ease because the element under consideration is the defendant’s intent, which is seldom capable of direct proof. State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998). To require a greater showing will also require the court to substitute its judgment for that of defendant and defendant’s counsel concerning whether defendant would in fact be convicted if a trial were held.

If the indicia of a prima facie case is utilized as the standard for establishing a factual basis, the minutes of testimony in the present case were sufficient indicia that the State had a prima facie case. As a general proposition in prosecutions charging theft, possession of property recently taken without permission establishes a prima facie case that a theft has been perpetrated by the possessor of the missing property. See State v. Brightman, 252 Iowa 1278, 1284, 110 N.W.2d 315, 316-18 (1961). This court has consistently applied this rule in cases involving prosecutions for theft of a motor vehicle. State v. Rosewall, 239 N.W.2d 171, 173-74 (Iowa 1976); State v. Everett, 157 N.W.2d 144, 146 (Iowa 1968), overruled on other issues by State v. Hawkins, 203 N.W.2d 555, 556-57 (Iowa 1973); State v. Girdler, 251 Iowa 868, 873, 102 N.W.2d 877, 879 (1960).

A helpful illustration of the application of this principle in a vehicle theft situation similar to the present case is found in Everett. There, the evidence showed that a motor vehicle had been left on the lot of a used car dealer at the close of business on October 18, 1965. On that evening, that vehicle was observed being driven on the streets of Cedar Rapids and later parked behind a tavern in Cedar Rapids. Still later in the evening, defendant was apprehended while driving the vehicle. Defendant was convicted at trial of larceny of a motor vehicle. On appeal the presumption of guilt to which I have referred was utilized as the basis for upholding the conviction notwithstanding defendant’s testimony that he had only borrowed the car.

The majority attempts to distinguish these cases on the basis that the intent to keep the property was not made an issue on those appeals. This overlooks the fact that the inference of guilt applied therein encompassed all elements of the offense of larceny of a motor vehicle. This was expressly .recognized in Rosewall in which this court states:

Under our holding in Everett the admitted possession by defendants of the recently stolen motorcycle creates an inference barring a motion for directed verdict. The inference is not limited to any particular element of larceny. When it arises guilt of the crime of larceny is inferred.

Rosewall, 239 N.W.2d at 174. The elements of the former statutory crime of larceny of a motor vehicle are sufficiently similar to the present statutory crime of theft that the principle established in the cases under discussion should be applied in the same manner.

In concluding that the showing of a factual basis in the present case was inadequate, the majority opinion misapplies our *794holding in Brainard v. State, 222 N.W.2d 711 (Iowa 1974). In Brainard the court set forth detailed standards for establishing a knowing and voluntary plea of guilty through direct colloquy between the court and the defendant. Although Brainard was a prosecution for larceny of a motor vehicle and there are statements in the opinion that the factual basis presented was inadequate, the court’s finding of inadequacy is with regard to the limited extent of the colloquy with the defendant to establish the intent with which he had acted. The case cannot be a holding that the factual basis presented was inadequate in toto because the specially concurring opinion necessary for the five-person majority expressly declined to find an inadequate factual basis and expressed the view that an adequate factual basis had been shown. The discussion of factual basis in Fluhr, 287 N.W.2d at 867, should also be viewed as a discussion of what was deemed an inadequate colloquy with the defendant in attempting to gain his admission concerning the intent element of the crime. This is borne out by the fact that the court ordered that defendant be permitted to plead anew (a remedy for an uninformed guilty plea) as contrasted to remanding the case to permit the State to further show a factual basis.

The court’s primary concern regarding factual basis in Fluhr was stated as follows:

Nor do the facts that the [written] plea form indicated that defendant had discussed the elements and facts of the crime with his attorney and that the attorney certified, on a separate form, that he was satisfied that the plea was factually justified overcome any of the plea’s deficiencies.... [R]eliance by a trial court upon an attorney’s declaration which fails to detail the facts upon which he bases his conclusion constitutes an impermissible delegation by the court of its duty to determine the existence of a factual basis.

Fluhr, 287 N.W.2d at 867. The Fluhr opinion does state that the minutes of testimony in that case were inadequate to show that defendant intended to keep the property that was the subject of the theft charge to which he had pleaded guilty. I submit that the court was only declaring that the minutes of testimony would not be considered a substitute for personal inquiry of the defendant concerning criminal intent when the defendant before the court had recollection of the circumstances of the crime and had not declared an intent to enter an Alford plea. The court makes no reference to departing from the general rule that indicia of a prima facie case satisfies the factual-basis element. If the court did find the minutes of testimony were inadequate to show factual basis on a record that contained indicia of a prima facie case, I submit that this was an incorrect statement of the law. It was also a comment that was not necessary to the opinion because of the court’s election to permit the defendant to plead anew as the result of not having been fully informed of the elements of the crime.

The present case differs substantially from Brainard and Fluhr because the colloquy between the court and the defendant concerning the intent element of the crime is not an issue here. The defendant disavowed any memory of the circumstances surrounding the alleged crime. In such circumstances, factual basis should be deemed to have been adequately shown through minutes of testimony that give indicia of a prima facie case.

The holding of the majority in the present case, which purports to be based on the best interests of the defendant, will instead deny this defendant and other defendants similarly situated an opportunity to make a plea bargain notwithstanding the fact that the State has made a prima facie showing of guilt on one of the charges to which the defendant has agreed to plead guilty. I would hold that the showing of factual basis in the present case was ade*795quate and proceed to consider the other issues raised on appeal.

McGIVERIN, C.J., and HARRIS, and LARSON, JJ. join this dissent.

Opinion

PUGLIA, P. J.

— A jury convicted defendant of willful diversion of construction funds (Pen. Code, § 484b) and found the taking exceeded $25,000 (Pen. Code, § 12022.6, subd. (a)). Imposition of sentence was suspended and defendant was granted probation for five years.

*1181In the published part of this opinion we shall reject defendant’s contention that the trial court erred in instructing the jury that willful diversion of construction funds is a general intent crime.1 Finding no error, we shall affirm.

In 1989, Doctors Steven Johnson and Douglas Martin contracted with defendant, doing business as Stark Construction, to build a medical facility for approximately $350,000. The project was begun in October 1989, and as various phases of the project were completed, defendant received partial payment from a construction loan obtained by the doctors. With these payments defendant was to pay the subcontractors and materialmen who had either performed work or provided materials for the job.

By February 15, 1990, defendant had received three draws from the construction loan, totalling about $245,000. On March 1, the doctors received several calls from subcontractors and materialmen informing the doctors they had not been paid. The doctors discussed the matter with defendant and it was agreed the doctors would thereafter write the checks to the subcontractors and materialmen. The building was completed on March 1. On March 16 the doctors issued approximately $70,000 in checks to subcontractors and material suppliers from the fourth draw.

When the doctors continued to receive calls from people who were supposed to have been paid, but had not been paid, from the first three draws, they again confronted defendant. Defendant informed the doctors he had been experiencing financial difficulties on other jobs and some of the money from the medical building project had been spent to defray costs incurred for those jobs. Defendant promised to repay the money as the other jobs progressed.

Months later, when money owed subcontractors and material suppliers still had not been paid, the doctors contacted the Contractor’s State License Board and the district attorney. The doctors estimated defendant’s diversion of the funds cost them approximately $46,000.

Defendant testified, admitting he used the money from the medical building project to defray costs on some of his other jobs. However, he always intended to pay the money back.

I

Penal Code section 484b provides in pertinent part: “Any person who receives money for the purpose of obtaining or paying for services, labor, *1182materials or equipment and willfully fails to apply such money for such purpose by either willfully failing to complete the improvements for which funds were provided or willfully failing to pay for services, labor, materials or equipment provided incident to such construction, and wrongfully diverts the funds to a use other than that for which the funds were received, shall be guilty of a public offense . . . .”

Relying on People v. Dollar (1991) 228 Cal.App.3d 1335 [279 Cal.Rptr. 502], and arguing here as he did in the trial court, defendant contends Penal Code section 484b defines a specific intent crime. Therefore, he continues, the trial court prejudicially erred when it instructed the jury the offense was one requiring only general criminal intent. We conclude Penal Code section 484b defines a general intent crime and that Dollar is inapposite.

In People v. Whitfield (1994) 7 Cal.4th 437 [27 Cal.Rptr.2d 858, 868 P.2d 272], the court reiterated the general rule for differentiating between specific and general criminal intent offenses: “[As a] general rule ‘[w]hen the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’ ” (At p. 449, quoting People v. Hood (1969) 1 Cal.3d 444, 456-457 [82 Cal.Rptr. 618, 462 P.2d 370].)

Defendant concedes there was a wrongful diversion of the construction funds and that this act requires only general criminal intent, i.e., merely the intent to do the act. He contends there must exist in the mind of the defendant the additional intent either to fail to complete the work or, as in this case, not to pay either material suppliers or subcontractors. Therefore, defendant argues, the offense is one of specific intent.

The only “act” described by Penal Code section 484b is the wrongful diversion, i.e., “a diversion to a use other than bona fide project costs” (People v. Butcher (1986) 185 Cal.App.3d 929, 938 [229 Cal.Rptr. 910]), of funds accepted for one or more of the specific purposes set forth in Penal Code section 484b. Nothing in section 484b suggests that when the defendant wrongfully diverts the funds that he intend to do a further act or to achieve a future consequence. The offense is complete if the wrongful diversion was the cause of failure either to complete the improvement or, as here, to pay for services, labor, materials or equipment. It is immaterial *1183whether defendant intended that there be a failure either to complete the project or to pay subcontractors or material suppliers. Consequently, the offense defined by section 484b is one of general criminal intent, and the trial court did not err in so instructing the jury.

People v. Dollar, supra, does not aid defendant. In that case the accused, who had previously been convicted of committing a lewd and lascivious act upon the victim, was thereafter convicted of threatening her (Pen. Code, § 139) after he had unsuccessfully attempted to grab her and, as she was running away, yelled, “I’ll get you soon, bitch.” (228 Cal.App.3d at p. 1338.) On appeal the accused contended the trial court erred in instructing the jury the offense was a general rather than specific intent crime.

In pertinent part, Penal Code section 139 reads: “(a) Except as provided in Sections 71 and 136.1, any person who has been convicted of any felony offense specified in Section 12021.1 who willfully and maliciously communicates to a witness to, or a victim of, the crime for which the person was convicted, a credible threat to use force or violence upon that person or that person’s immediate family, shall be punished by imprisonment in the county jail not exceeding one year or by imprisonment in the state prison . . . . [¶] . . . d] (c) As used in this section, ‘a credible threat’ is a threat made with the intent and the apparent ability to carry out the threat so as to cause the target of the threat to reasonably fear for Ms or her safety or the safety of Ms or her immediate family.”

In concluding the offense was one requiring a specific intent, the court stated: “A threat as defined in section 139 would be a general intent crime if it is merely the threat itself that is being proscribed by the statute. If section 139 falls witMn the category of general intent crimes, it cannot proscribe additional future goals or consequences beyond the act of making the threat itself. HD ... [¶] Section 139 draws a distinction between an idle threat, a joke or a threat that no one would believe, and a credible threat, wMch the section defines. For a threat to be credible, the criminal actor must have the apparent ability to carry out the threat and must have the additional criminal intent to cause the victim of the tMeat fear [tic] for Mm or herself or for Ms or her immediate family. The communication of the threat itself is the act. The intent to create a future or additional consequence is the intent to cause the victim to feel fear or intimidation.” (228 Cal.App.3d at p. 1341.)

As noted above, in cases arising under section 484b it is immaterial whether at the time of the wrongful diversion the defendant intends or desires that the improvement not be completed or the suppliers and subcontractors not be paid. To violate the statute all that it required is the wrongful *1184diversion of the funds, which means not applying the funds for the purpose for which they were disbursed, and that the diversion be the cause of at least one of the described failures. In contrast, a violation of Penal Code section 139 requires the making of the threat coupled with the intent to cause fear in the target of the threat, thus defining an additional mental state not required by Penal Code section 484b. We conclude Dollar is of no assistance to defendant.

II, in*

The judgment is affirmed.

Sparks, J., and Sims, J., concurred.

OPINION OF THE COURT

FOREMAN, Senior Judge:

A military judge sitting as a special court-martial convicted the appellant, in accordance with his plea of guilty, of altering a public record in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1982) [hereinafter UCMJ], Contrary to his pleas, the military judge also convicted the appellant of signing a false official statement (two specifications), wrongful appropriation of a copy of a divorce decree, and bigamy, in violation of Articles 107, 121 and 134, UCMJ, 10 U.S.C. §§ 907, 921 and 934 (1982). His approved sentence provides for a bad-conduct discharge, confinement for three months, and reduction to Private E1.

The appellant married his first wife, Amparo, in December 1986, while stationed in Panama. In January 1987, the appellant was reassigned from Panama to Germany, but his wife remained in Panama. While in Germany, the appellant did not know Amparo’s address or telephone number, but sent letters to a friend, who passed them on to her. The appellant returned from Germany in March 1988 and was reassigned to Fort Sill, Oklahoma. In August 1988, the appellant sent his wife a money order with his telephone number written on it. The appellant filed for divorce in Oklahoma and sent a copy of the petition to a friend’s post office box in Panama for delivery to his wife. In September or October 1988, Amparo called the appellant from Panama and informed him that she had filed for divorce in Panama, that there was “nothing between the two of us” and that he “didn’t have to worry about her anymore.” The appellant testified that he thought he was divorced at that point. In November 1988, the Red Cross notified the appellant that Amparo had been hospitalized. The Red Cross referred to Amparo as his “ex-wife.” On 9 November 1988, the appellant requested that his basic allowance for quarters (BAQ) at the “with dependents” rate be terminated because he was divorced. The finance clerk told him that she could not stop the BAQ without a divorce decree. Since the appellant did not have a copy of a divorce decree, he took another sergeant’s divorce decree, made a copy of it, inserted his name and Amparo’s in the text (but neglected to change the caption) and attached it to his request to terminate his BAQ. In December 1988, the appellant married Jackeline, and requested that his BAQ at the “with dependents” rate be reinstated.

The appellant was charged with making two false official statements to officials of the Fort Sill finance office, first that he was divorced from Amparo (Specification 1 of Charge II) and second that he was married to Jackeline (Specification 2 of Charge II). He contends that the evidence was insufficient to prove both specifications because he honestly believed that he was divorced from Amparo.

This court specified the following issues: (1) whether creation of an altered copy of a public record without altering the original constitutes the offense of altering a public record, and (2) whether the appellant’s plea of guilty to altering a public record was provident to the offense charged or any lesser included offense.

I. False Official Statements

Making a false official statement in violation of UCMJ, Article 107, 10 U.S.C. *1071§ 907 (1982), is a specific intent crime. An honest mistake of fact regarding the truth of the statement made is a defense. United States v. Rowan, 16 C.M.R. 4 (C.M.A.1954); Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 916(j) [hereinafter M.C.M., 1984 and R.C.M.]; M.C.M., Part IV, para. 31c(5). The evidence establishes that Amparo told the appellant she had filed for divorce, that the appellant received correspondence from the Red Cross referring to Amparo as his “ex-wife,” and that he attempted to terminate his entitlement to BAQ, on the ground that he was divorced. He then participated in a marriage ceremony and received a marriage certificate indicating that he was married to Jackeline. Based upon the entire record, we find that the defense of an honest mistake of fact was raised and not overcome by the government’s evidence. R.C.M. 916(b). Accordingly, we find that the evidence is insufficient to prove appellant’s guilt of making false official statements (Charge II and its two specifications).

II. Bigamy

Bigamy is a general intent crime. To constitute a defense to bigamy, a mistake of fact must be both honest and reasonable. M.C.M., 1984, Part IV, para. 65c. While the appellant may have honestly believed that he was divorced from Amparo, we find that he did not take the steps which a reasonable man would have taken to determine the validity of his honest belief. United States v. McCluskey, 20 C.M.R. 261 (C.M.A.1955). He was not reasonable in assuming that he was divorced. See United States v. Bateman, 23 C.M.R. 312 (C.M.A.1957) (knowledge that wife intended to proceed with divorce proceedings insufficient); United States v. Avery, 9 C.M.R. 648 (A.F.B.R.1953) (reliance on attorney’s prediction that divorce would occur on a given date not reasonable). Accordingly, we find that the evidence is sufficient to prove bigamy.

III. Altering a Public Record

The offense of altering a public record in violation of UCMJ, Article 134, is based on 18 U.S.C. § 2071. The offense is committed by altering, concealing, removing, mutilating, obliterating, destroying, or taking a public record with the intent to do any of the foregoing. M.C.M., 1984, Part IV, para. 99b. A public record is defined as including “records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to which there was a duty to report.” M.C.M., 1984, Part IV, para. 99c. The offense of altering a public record in violation of Article 134 is “substantially identical” with the crime denounced by 18 U.S.C. § 2071. United States v. Spain, 38 C.M.R. 145 (C.M.A.1968). The purpose of 18 U.S.C. § 2071 is to “prevent any conduct which deprives the government of the use of its documents, be it by concealment, destruction, or removal.” United States v. Rosner, 352 F.Supp. 915, 919 (S.D.N.Y.1972), petition denied, 497 F.2d 919 (2d Cir.1974).

The government argues that the UCMJ, Article 134 offense is broader than 18 U.S.C. § 2071 and that it encompasses alteration of an unofficial copy of a public record because the Manual for Courts-Martial definition of a public record includes the words “in any form,” which are not found in 18 U.S.C. § 2071. We disagree. The UCMJ, Article 134 offense is broader than 18 U.S.C. § 2071 only in that it specifically proscribes “altering” public records. United States v. Maze, 42 C.M.R. 376, 379 (A.C.M.R.1970). The term “altering” does not appear in 18 U.S.C. § 2071. The words “in any form” are taken from Mil.R.Evid. 803. M.C.M., 1984, Article 134, Analysis, app. 21, at A21-103. This language also appears in Federal Rule of Evidence 803 [hereinafter Fed.R.Evid.], and is intended to include public records other than paper documents, e.g., microfiche, videotapes, computer tapes and disks. See e.g., Oriental Health Spa v. City of Fort Wayne, 864 F.2d 486, 490 (7th Cir.1988) (videotape admissible as an official public record under Fed.R.Evid. 803(8)); State ex rel. Harmon v. Bender, 25 Ohio St.3d 15, 494 N.E.2d *10721135, 1136 (1986) (videotapes of trial proceedings are public records). In the case before us the appellant created and altered an unofficial, unauthenticated photocopy of a public record, but did not disturb the integrity of the public record itself. We hold that the unofficial, unauthenticated' photocopy altered by the appellant was not a public record.

On the facts before us, we need not decide whether altering an authenticated copy of a public record would be a violation of UCMJ, Article 134. While intentional introduction of the altered unauthenticated photocopy into government channels may have violated another proscription, e.g., UCMJ, Article 132, 10 U.S.C. § 932 or 18 U.S.C. § 1001, it did not constitute the crime of altering a public record in violation of UCMJ, Article 134, or any lesser included offense. Accordingly, we hold that the appellant’s plea of guilty to altering a public record in violation of UCMJ, Article 134 was improvident.

The findings of guilty of Charge II and its two Specifications (false official statements), and Specification 2 of Charge IV (altering a public record) are set aside. Charge II and its two Specifications, and Specification 2 of Charge IV are dismissed. The remaining findings of guilty are affirmed. The sentence is set aside. A rehearing on the sentence may be ordered by the same or a different convening authority.

Judge SMITH and Judge VARO concur.

Opinion

CHIN, J.

In this case, V.V. and J.H., minors, set off a firecracker on a brush-covered hillside in Pasadena, causing a fire that burned five acres of forest land. At a combined adjudicatory hearing, the juvenile court determined that V.V. and J.H. had committed arson. The court found that, although they did not intend to set the hillside on fire, the evidence satisfied the mental state required for arson.

In V.V.’s case, the Court of Appeal affirmed the juvenile court’s order, finding that the evidence sufficiently established the requisite mental state of malice because V.V. deliberately and intentionally set off a firecracker on a brush-covered hill. In J.H.’s case, a different division of the Court of Appeal found that the intentional act of setting off a firecracker on a brush-covered hill without intent to do harm is insufficient to establish the element of malice.

We conclude that under the circumstances of this case, V.V.’s and J.H.’s acts of intentionally igniting and throwing a firecracker amid dry brush on a hillside, although done without intent to cause a fire or other harm, were sufficient to establish the requisite malice for arson.

*1024I. FACTS AND PROCEDURAL HISTORY

On the afternoon of July 18, 2008, V.V. and J.H. (both 17 year olds) joined a friend to climb a steep hill located behind a residential street in Pasadena. V.V. lit a large firecracker, which J.H. threw onto the brush-covered hillside. The firecracker exploded and caused a five-acre brush fire.

Abel Ramirez, a Pasadena resident, heard a “very loud explosion” from his backyard patio. He immediately saw smoke rising from the hillside and saw flames several minutes later. Shortly thereafter, Ramirez saw three young men running down the hill from the fire’s point of origin. The fire was rapidly spreading, coming within 60 to 75 feet of a residence. Ramirez called 911 to report the fire and described the three young men. At a field showup that day and at the adjudicatory hearing, Ramirez identified V.V. and J.H. as two of the three young men running down the hill.

Ara Moujoukian, Ramirez’s neighbor, heard kids laughing, yelling, and “having a good time” outside his house. He heard them exclaiming “Wow,” “Look,” “Did you see that,” and “Fire.” Moujoukian went outside and saw three boys laughing and “high-fiving” each other. When Moujoukian asked, “What are you guys doing?” they immediately ran away. One of the three boys “smacked” Moujoukian’s car as he ran off. Moujoukian turned around and saw a fire on the hill behind his house. He called 911 to report the fire and gave descriptions of the three boys. At a field showup that day and at the adjudicatory hearing, Moujoukian identified V.V. and J.H. as two of the three boys.

Pasadena police officers responded to the 911 calls. About one-quarter mile from the scene of the fire, they saw three people matching the description of the suspects and detained them. Officer Brian Bozarth patted down V.V. and found a lighter and “a large firecracker that would be described as a cherry bomb,” which was about the size of a golf ball and had a fuse coming out of the top. When Officer Bozarth discovered the firecracker, V.V. declared, “That’s what caused the fire.” V.V. admitted that he had caused the brush fire by setting off a firecracker on the hillside. Officer Bozarth saw a gray substance on J.H.’s fingers that appeared to be gunpowder from fireworks.

Firetrucks arrived and climbed three-fourths of the way up the hill. The fire burned five acres of brush-covered hillside behind a housing development.

At the police station, Detective Jesse Carrillo read V.V. and J.H. their Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]) and interviewed them separately. During the interviews, V.V. and J.H. admitted that they had been playing with firecrackers and had set the *1025hillside on fire. They stated they had gone to the hill with the intention of climbing it. J.H. admitted that he had brought six firecrackers “because we wanted to blow them up.” V.V. and the third minor knew J.H. had the firecrackers with him. But the third minor did not want to participate in lighting the firecrackers because he feared that someone might get injured.

V.V. acknowledged that, although J.H. brought the firecrackers to the hill, they both had the idea of lighting one. The minors stated that J.H. held the firecracker, V.V. lit it with J.H.’s lighter, and J.H. threw it. V.V. stated that they tried to throw the firecracker onto a green area on the hillside. On the other hand, J. H. said he told V.V. he was going to throw the firecracker onto a concrete area. V.V. claimed that he lit the firecracker “[j]ust to make a lot of noise,” and that he did not think the green areas on the hillside would ignite. After the fire started, they “got kind of scared” because the fire could have reached them. They then discarded the other fireworks into a sewer. The three minors ran down the hill without stopping to report the fire to anyone.

Detective Carrillo testified that the brush fire’s point of origin was below the minors’ position on the hillside. He stated that the concrete area J. H. said he was aiming for was even further down the hillside, about 150 yards from the fire’s point of origin.

The Los Angeles County District Attorney filed petitions under Welfare and Institutions Code section 602 alleging that V.V. and J.H. committed the crimes of arson of a forest land (Pen. Code, § 451, subd. (c))1 and recklessly causing a fire (§ 452, subd. (c)). The juvenile court found that V.V. and J.H. understood what they were doing and that they knew “the natural consequence could be setting the hill on fire because they’re trying to throw the thing into a patch of green or into a cement area. So they’re trying to avoid setting the hill on fire.” The court further found that V.V. and J.H. did not intend to set the hill on fire, but concluded that because they intentionally ignited and threw the firecracker that caused the fire, the requisite mental state for arson was met, as construed in People v. Atkins (2001) 25 Cal.4th 76 [104 Cal.Rptr.2d 738, 18 P.3d 660] (Atkins). The court found the arson allegation to be true, dismissed the lesser offense of unlawfully causing a fire, declared V.V. and J.H. wards of the state, and placed them on home probation.

In affirming V.V.’s wardship order, Division One of the Court of Appeal, Second Appellate District, in an unpublished opinion, concluded that arson’s malice requirement was met under Atkins. The court reasoned that “[undisputed evidence established that V.V. intentionally ignited the firecracker with *1026the knowledge and intent that his companion would throw the firecracker onto the hillside and it would explode amidst dry brush. This was not an accidental ignition, but a deliberate and intentional act of igniting and exploding, the firecracker ‘under such circumstances that the direct, natural, and highly probable consequences would be the burning of’ dry brush on the hill when the firecracker exploded. (People v. Atkins, supra, 25 Cal.4th at p. 89.)”

In setting aside the arson finding in J.H.’s case, Division Eight of the Court of Appeal, Second Appellate District, in a published opinion, concluded that, under Atkins, the act of lighting and throwing a firecracker without the intent to do harm was not malicious conduct because it was not done with “an intent to do a wrongful act.” The court struck the arson finding as to J.H. and modified the judgment to reflect a finding that J.H. committed the lesser offense of recklessly causing a fire.

We granted review in both cases to determine the correct application of Atkins. 2

II. DISCUSSION

V.V. and J.H. argue that there is insufficient evidence of malice, as defined in the arson statutes (§§ 450, 451), because they lit and threw the firecracker without intent to cause a fire or any other harm. As explained below, the evidence supports the juvenile court’s finding that V.V. and J.H. acted with malice.

Our review of the minors’ substantial evidence claim is governed by the same standard applicable to adult criminal cases. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328 [116 Cal.Rptr.2d 21].) “In reviewing the sufficiency of the evidence, we must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 509 [41 Cal.Rptr.2d 826, 896 P.2d 119].) “ ‘[O]ur role on appeal is a limited one.’ [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 925, fn. 2 [95 Cal.Rptr.3d 202, 209 P.3d 105].)

*1027“A person is guilty of arson when he or she willfully and maliciously sets fire to or bums or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.” (§ 451.) “Willfully” is defined not in the arson chapter, but in section 7, item 1: “The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” The arson chapter defines “maliciously” as involving “a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” (§ 450, subd. (e).) This is the same definition as found in section 7, item 4, except for the inclusion of “defraud” in section 450.

In Atkins, we held that arson requires only a general criminal intent and that the specific intent to set fire to, bum, or cause to be burned the relevant structure or forest land is not an element of arson. In reaching that conclusion, we examined the statutory terms “willfully” and “maliciously,” and explained: “ ‘[T]he terms “willM” or “willfully,” when applied in a penal statute, require only that the illegal act or omission occur “intentionally,” without regard to motive or ignorance of the act’s prohibited character.’ [Citation.] ‘Willfully implies no evil intent; “ ‘it implies that the person knows what he is doing, intends to do what he is doing and is a free agent.’ [Citation.]” ’ [Citations.] The use of the word ‘willfully’ in a penal statute usually defines a general criminal intent, absent other statutory language that requires ‘an intent to do a further act or achieve a future consequence.’ [Citations.]” (Atkins, supra, 25 Cal.4th at p. 85.) Similarly, the statutory definition of “maliciously,” in the context of arson, requires no specific intent to do a further act or achieve a future consequence. (Id. at pp. 85-86.) Other language in the arson statute “does not require an additional specific intent to bum a ‘structure, forest land, or property’ . . . .” (Id. at p. 86.)

In Atkins, the defendant admitted that he poured a mixture of oil and gasoline on a pile of weeds and lit the weeds with a disposable lighter in a cleared area in a canyon that had heavy bmsh, trees, and grass. He claimed that he had been drinking most of that day. Although the prosecution presented evidence that he had previously threatened to bum down a nearby house, the defendant asserted that he meant no harm and that the resultant bmsh fire was an accident. (Atkins, supra, 25 Cal.4th at pp. 79-80.) We held that because arson is a general intent crime, evidence of voluntary intoxication was not admissible on the issue of whether the defendant formed the required mental state for arson. (Id. at pp. 79, 84.) We stated that the arson statute does not require the intent to cause the resulting harm, but “rather requires only [a general] intent to do the act that causes the harm.” (Id. at p. 86.)

*1028Here, the evidence shows that V.V. and J.H. willfully and intentionally ignited and threw a large firecracker onto the brush-covered hillside, that the firecracker exploded in the dry brush, and that the explosion caused a brush fire. Thus, the actus reus element of section 451 was met because V.V. and J.H. willfully and intentionally committed the act that “cause[d] to be burned . . . forest land.” (§ 451.) However, V.V. and J.H. argue that their acts were not malicious. They agree that an intent to commit the resulting harm is not an element of arson, but argue there must be evidence they intended to cause a fire or some other harm or “evil result.”

The statutory definition of arson is derived from the common law crime of arson as a willful and malicious burning. (Atkins, supra, 25 Cal.4th at pp. 86-87.) Although “[m]alice as universally understood by the popular mind has its foundation in ill-will” (Davis v. Hearst (1911) 160 Cal. 143, 157 [116 P. 530]), it need not take the form of malevolence or ill will (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 11, p. 213; Perkins & Boyce, Criminal Law (3d ed. 1982) Offenses Against Habitation and Occupancy, § 2, p. 275; see also People v. Ah Toon (1886) 68 Cal. 362, 363 [9 P. 311] [“ ‘malice, in common acceptance], means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse’ ”]). Malice in fact—defined as “a wish to vex, annoy, or injure” (§ 7, item 4)—consists of actual ill will or intent to injure. (See Davis v. Hearst, supra, 160 Cal. at pp. 157-158; 1 Witkin & Epstein, Cal. Criminal Law, supra, Elements, § 11, p. 213.) However, “ ‘[t]here is still another malice, the presumption of the existence of which is raised by the law in certain cases upon certain proofs.’ ” (Davis v. Hearst, supra, 160 Cal. at p. 158.) This type of malice—malice in law—is defined in section 7, item 4 as “an intent to do a wrongful act, established either by proof or presumption of law.” (See Davis v. Hearst, supra, 160 Cal. at p. 158; see also § 450, subd. (e).) Malice in law may be “presumed” or “implied” from the intentional doing of the act without justification or excuse or mitigating circumstances. (See Davis v. Hearst, supra, 160 Cal. at p. 158; 1 Witkin & Epstein, Cal. Criminal Law, supra, Elements, § 11, p. 214.)

In determining whether the second type of malice (“intent to do a wrongful act”) is established for arson, malice will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right. (Atkins, supra, 25 Cal.4th at pp. 88-89; accord, U.S. v. Doe (9th Cir. 1998) 136 F.3d 631, 635 [common law arson]; cf. People v. Hayes (2004) 120 Cal.App.4th 796, 803, fn. 3 [15 Cal.Rptr.3d 884] [malice will be presumed from types of injuries (maiming) resulting from intentional acts]; People v. Nunes (1920) 47 Cal.App. 346, 349 [190 R 486] [same].) “ ‘An intentional act creating an obvious fire hazard . . . done without justification . . . would certainly be malicious ....’” (U.S. v. Doe, supra, 136 F.3d at p. 635, fn. 4, italics added.)

*1029As we stated in Atkins, arson’s “willful and malice requirement ensures that the setting of the fire must be a deliberate and intentional act, as distinguished from an accidental or unintentional ignition or act of setting a fire; ‘ “in short, a fire of incendiary origin.” ’ (People v. Green [(1983) 146 Cal.App.3d 369,] 379 [194 Cal.Rptr. 128]; People v. Andrews [(1965) 234 Cal.App.2d 69,] 75 [44 Cal.Rptr. 94]; 5 Am.Jur.2d [(1995)] Arson and Related Offenses, § 7, p. 786; accord, U.S. v. Doe, supra, 136 F.3d at p. 635.) ‘Because the offensive or dangerous character of the defendant’s conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state.’ (Cf. People v. Colantuono [(1994) 7 Cal.4th 206,] 215 [26 Cal.Rptr.2d 908, 865 P.2d 704] [assault].) Thus, there must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property. (See People v. Fry [(1993) 19 Cal.App.4th 1334,] 1339 [24 Cal.Rptr.2d 43]; Perkins & Boyce, Criminal Law (3d ed. 1982) Offenses Against Habitation and Occupancy, § 2, pp. 276-277; cf. People v. Rocha [(1971) 3 Cal.3d 893,] 899 [92 Cal.Rptr. 172, 479 P.2d 372] [assault]; People v. Bohmer [(1975) 46 Cal.App.3d 185,] 190 [120 Cal.Rptr. 136] [malicious placement of obstruction on railroad tracks].)” (Atkins, supra, 25 Cal.4th at pp. 88-89.)

Tracking the language with which we described arson’s malice requirement in Atkins, supra, 25 Cal.4th at page 89, the juvenile court stated, “the question to me is whether I believe that the natural and probable consequence or highly probable consequence of lighting a firecracker on a hillside and throwing it some distance away trying to hit a patch of green or a patch of cement . . . and then the hill catches on fire—whether that meets the requirement of the law. And, I guess, I think it does.” Thus, the juvenile court found that arson’s malice requirement was established in this case.3

Substantial evidence supports the juvenile court’s finding of malice. V.V. and J.H. were equal participants. Although J.H. brought large “cherry bombs” to the hill, both J.H. and V.V. had the idea of lighting one. J.H. held the firecracker while V.V. lit it with J.H.’s lighter. J.H. then threw the ignited firecracker into dry brush on the hillside.

*1030The juvenile court further found that, despite their intentional acts, V.V. and J.H. did not intend to set the hillside on fire and tried to avoid such a consequence. Nevertheless, the court correctly recognized “that’s not the issue.” V.V. and J.H. were not required to know or be subjectively aware that the fire would be the probable consequence of their acts. (See U.S. v. Doe, supra, 136 F.3d at p. 635 [common law arson does not require proof of intent to bum down building, or of knowledge this would be the probable consequence of defendant’s act]; cf. People v. Wyatt (2010) 48 Cal.4th 776, 781 [108 Cal.Rptr.3d 259, 229 P.3d 156] [defendant need not know or be subjectively aware his assaultive act is capable of causing great bodily injury]; see also People v. Hayes, supra, 120 Cal.App.4th at p. 803, fn. 3 [“[t]he second definition—intent to do a wrongful act—has never been constmed, so far as we can determine, to require knowledge by the defendant that his or her conduct violated social norms”].) A defendant may be guilty of arson if he or she acts with awareness of facts that would lead a reasonable person to realize that the direct, natural, and highly probable consequence of igniting and throwing a firecracker into dry brash would be the burning of the hillside. (Cf. People v. Wyatt, supra, 48 Cal.4th at p. 781.) Here, V.V. and J.H. were aware of such facts.

Although V.V. and J.H. did not intend to set the hillside on fire, they knew that their intentional acts created a fire hazard. J.H. told the police he attempted to throw the firecracker onto a concrete area on the hillside, while V.V. said they wanted to throw the firecracker onto a green area on the hillside. The juvenile court reasonably inferred that because V.V. and J.H. tried to avoid the dry brush, they knew a fire could result from setting off the large “cherry bomb” on the brush-covered hillside. V.V. and J.H. also told the police that the third minor did not want to participate in lighting the firecrackers because he feared that someone might get injured. Thus, the third minor alerted V.V. and J.H. beforehand to the dangers of playing with firecrackers.4 Moreover, the concrete area was about 150 yards from the fire’s point of origin and more than 150 yards away from V.V. and J.H.. A reasonable person would not have objectively believed that a firecracker thrown from V.V. and J.H.’s position would reach the concrete area. *1031Thus, V.V. and J.H. were aware of facts that would lead a reasonable person to realize that the direct, natural, and highly probable consequence of throwing a lit “cherry bomb” from their location would be its landing in the dry brush short of the concrete area and causing a fire.

Indeed, the record supports an inference that V.V. and J.H. were not surprised or upset that the firecracker exploded in dry brush and caused a fire. Ara Moujoukian testified that V.V. and J.H. were yelling, laughing, “high-flying,” and seemingly having a good time moments after they realized the hillside was on fire.5 When Moujoukian asked what they were doing, V.V. and J.H. ran away and did not notify the authorities about the brush fire. These facts suggest that V.V. and J.H. did not realistically expect that the thrown “cherry bomb” would reach the concrete area. From the above evidence, the juvenile court reasonably inferred that V.V. and J.H. acted with malice.6

V.V. and J.H. claim that the evidence supports a finding only that they had committed the offense of unlawfully causing a fire (§ 452) because their conduct was reckless and resulted in an accidental fire. “[T]he offense of unlawfully causing a fire covers reckless accidents or unintentional fires, which, by definition, is committed by a person who is ‘aware of and consciously disregards a substantial and unjustifiable risk that his or her act *1032will set fire to, bum, or cause to bum a structure, forest land, or property.’ (§§ 450, subd. (f), 452.)” (Atkins, supra, 25 Cal.4th at p. 89.) We disagree.

This was not an accidental or unintentional ignition. A similar situation occurred in U.S. v. Doe, supra, 136 F.3d 631, which we cited with approval in Atkins, supra, 25 Cal.4th at page 88. There, a juvenile intentionally set fire to paper towels in a dispenser in the girls’ bathroom of a school. With a lighter, the juvenile lit one comer of a paper towel from the dispenser, let the towel bum for a few seconds, blew out the flame, and put the burned towel in the sink. She then lit the left comer of a paper towel protrading from the dispenser, let the flame burn for a second, and blew it out. She lit the right comer of the same towel in the dispenser, blew it out, and left the bathroom. The building caught fire. An investigation revealed that the fire originated in the girls’ bathroom. (U.S. v. Doe, supra, 136 F.3d at pp. 633-634, 636.) In affirming the juvenile’s arson conviction, the court did not base its decision on whose paper towels were set on fire and left smoldering in the bathroom. (See dis. opn. of Kennard, J., post, at p. 1034.) Instead, in construing the common law definition of arson, the court reasoned that the “elements of willfulness and maliciousness are established by proof that the defendant set the fire intentionally and without justification or lawful excuse” with “no suggestion that the fire started as a result of accident or negligence.” (U.S. v. Doe, supra, 136 F.3d at pp. 635-636.)7

As in U.S. v. Doe, supra, 136 F.3d 631, the evidence here supports the juvenile court’s finding that V.V.’s and J.H.’s intentional conduct of setting *1033fire to and throwing a large “cherry bomb” that exploded in dry brush, causing a fire, was willful and malicious.8

III. DISPOSITION

We affirm the judgment of the Court of Appeal relating to the arson finding in V.V.’s case. We reverse the judgment of the Court of Appeal relating to the arson finding in J.H.’s case and remand the case to that court for further proceedings consistent with this opinion.

Cantil-Sakauye, C. J., Baxter, J., Corrigan, J., and Banke, J.,* concurred.

KENNARD, J., Dissenting.

One dry summer day, two teenagers lit a type of firecracker commonly known as a “cherry bomb” and threw it down a brush-covered hill. When the cherry bomb exploded, the brush caught fire. The teenagers who threw the cherry bomb (V.V. and J.H.) were captured and were later found guilty in juvenile court of arson of forest land. (Pen. Code, §451, subd. (c).)1

The majority here upholds the juvenile court’s finding. I disagree. As Justice Werdegar’s dissent (which I have signed) persuasively explains, the evidence is insufficient to show that V.V. and J.H. acted with malice, a necessary element of the crime of arson. Instead, they were guilty only of reckless fire setting (§ 452), which is a serious crime but not so serious as arson. I write to comment on the majority’s erroneous assertion that the fire started by V.V. and J.H. was not accidentally set.

As this court explained in People v. Atkins (2001) 25 Cal.4th 76.[104 Cal.Rptr.2d 738, 18 P.3d 660], California’s arson statute applies only to fires that are set deliberately, not to those set accidentally. The statutory requirement that the defendant act willfully and with malice, we said, “ensures that the setting of the fire must be a deliberate and intentional act, as distinguished from an accidental or unintentional ignition or act of setting a fire.” (Id. at p. 88.) By contrast, we said, the crime of reckless fire setting (§ 452) “covers reckless accidents or unintentional fires [caused by] a person who is ‘aware *1034of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, bum, or cause to bum a structure, forest land, or property.’ ” (Atkins, at p. 89, quoting §§ 450, subd. (f), 452.)

Here, the court commissioner hearing the matter expressly found that V.V. and J.H. did not intend to set the fire that resulted when the cherry bomb exploded on the hillside. Nevertheless, the majority concludes: “This was not an accidental or unintentional ignition.” (Maj. opn., ante, at p. 1032.) The majority’s only explanation for that bald assertion is to say that the facts here are comparable to those of U.S. v. Doe (9th Cir. 1998) 136 F.3d 631 (Doe), a case cited with approval in People v. Atkins, supra, 25 Cal.4th at page 88. In Doe, a juvenile intentionally set fire to several paper towels from a dispenser in a school restroom. Although she blew out the flame, sparks remained, which eventually set the building on fire. The federal court of appeals upheld the juvenile’s arson conviction, reasoning that she had acted maliciously because she “set the fire intentionally and without justification or lawful excuse.” (Doe, supra, at p. 635.)

But the facts here are not comparable to those of Doe, supra, 136 F.3d 631. The minor in Doe intentionally and illegally set fire to the school’s property (the paper towels) and the fire thereafter spread. Intentionally setting that fire was the illegal act that furnished the requisite malice to support the arson conviction in that case. Here, by contrast, V.V. and J.H. did not intentionally set a fire; they exploded a cherry bomb. That act, under the circumstances in which they did it, was criminally reckless, and it therefore violated section 452 (reckless fire setting). But because the fire that resulted from the explosion was accidental, they were not guilty of arson of forest land, the offense the court commissioner found them to have committed.

In short, V.V. and J.H. performed three intentional acts which, in combination, resulted in the hillside being set ablaze: (1) they lit a lighter; (2) they used the lighter to light the fuse to a cherry bomb; and (3) they flung the cherry bomb down the hillside just before it exploded. The first and second of these acts were innocuous and entirely proper, assuming it was legally permissible to use fireworks in the area where they were standing (an assumption unrebutted by the record in this case); the third act was criminally reckless. But by committing the third act, V.V. and J.H. did not deliberately set a fire. Although a fire resulted from that act, that fire was an accident: As V.V. told the police officer that questioned him, they set off the cherry bomb “□just to make a lot of noise.” They therefore did not act maliciously, and thus were not guilty of violating section 451’s subdivision (c) (arson of forest land).

WERDEGAR, J., Dissenting.—The

majority opinion, in my view, comports with neither the facts nor the law. Accordingly, I respectfully dissent.

*1035The minors in this case played with fireworks on the edge of the Angeles National Forest shortly after July 4th, when fireworks were plentiful and the brush was dry. Their reckless conduct would, if committed by adults, have constituted the felony of unlawfully causing a fire. (See Pen. Code, § 452.)1 Contrary to the majority, however, I conclude the minors’ conduct did not amount to arson. (§ 451.)

A person is guilty of arson when he or she “willfully and maliciously sets fire to . . . forest land . . . .” (§ 451.) “Willfully,” for all practical purposes, means nothing more than that the prohibited act was intentionally done. (See People v. Atkins (2001) 25 Cal.4th 76, 85 [104 Cal.Rptr.2d 738, 18 P.3d 660] (Atkins).) The term “implies simply a purpose or willingness to commit the act ... . It does not require any intent to violate law, or to injure another . . . .” (§ 7, par. 1.) There is no dispute that the minors “willfully”— that is intentionally—lit the firecracker that started the fire. In contrast, the term “maliciously” imports an additional element, namely, “a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” (§ 450, subd. (e).)

The court commissioner who conducted the juvenile hearing in this case expressly found the minors did not intend to set the hillside on fire. He believed the dispositive question was simply whether “the natural and probable consequence or highly probable consequence of lighting a firecracker on a hillside and throwing it some distance away trying to hit a patch of green or a patch of cement” satisfied the statutory definition of arson. (§ 451.) Certainly the minors lit the firecracker “willfully” the act was clearly volitional. But nothing in the record justifies the majority’s conclusion the minors also lit the firecracker “maliciously.” No evidence was introduced to show the minors had “a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act . . . .” (§ 450, subd. (e), italics added.) The only evidence concerning the minors’ purpose in lighting fireworks comes from their statements to police and reflects nothing more than a common youthful enthusiasm for loud noises.2 Had the minors lit fireworks in violation of an ordinance prohibiting them, their conduct would certainly have been “wrongful,” and thus malicious (§ 450, subd. (e)), but the People do not claim the minors violated any such ordinance.

The majority offers various analytical paths to the conclusion that the minors acted with malice. I find all of them unsupportable. At one point, the *1036majority seems to presume malice ‘from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right.” (Maj. opn., ante, at p. 1028, italics added.) This approach has two problems. First, the minors did not intend to set a fire at all, as the commissioner expressly held, let alone maliciously. What they intended was to explode a firecracker. The majority does not argue the minors committed arson by setting fire to the firecracker, as that view of the facts would implicate not the general prohibition of arson (§ 451), but a different provision punishing those who set fire to their own property and thereby cause injury to forest land (§ 451, subd. (d)). Second, the authority the majority offers as support (Atkins, supra, 25 Cal.4th 76, 88-89) for presuming malice under these circumstances provides no support. What we actually stated in Atkins is that “[a]rson’s malice requirement ensures that the act is ‘done with a design to do an intentional wrongful act. . . without any legal justification, excuse or claim of right.’ ” (Id., at p. 88, quoting 5 Am.Jur.2d (1995) Arson and Related Offenses, § 7, p. 786, italics added.) Malice thus requires, in addition to an intentional (i.e., volitional, willful) act, a wrongful one. Or, to quote the relevant California statute, “a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act . . . .” (§ 450, subd. (e).) Today, the majority ignores the requirement of wrongfulness and presumes malice simply from the commission of the volitional act that causes a fire to start, thus eviscerating the statutory requirement of malice.

Later in its opinion, trying another approach, the majority asserts the commissioner found the minors acted with malice. (Maj. opn., ante, at p. 1029.) Had he done so, he would on this record have erred. But in fact, the commissioner made no such finding; like the majority, he presumed malice simply from the lighting and throwing of the firecracker.3 The record discloses the only aspect of the mental state required for arson to which the commissioner directed his attention was the holding of Atkins, supra, 25 Cal.4th 76, 84, that arson does not require “the specific intent to set fire to or bum or cause to be burned the relevant structure or forest land . . . .” He made no effort to determine whether the minors had acted, in the words of the statute, with “a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act. . . .” (§ 450, subd. (e).)

The commissioner may have proceeded as he did from a misreading of Atkins, supra, 25 Cal.4th 76, where the defendant deliberately ignited a fire in *1037weeds near the house of a man he had declared he hated, resulting in the burning of an entire canyon. Rejecting the defendant’s argument that arson requires the specific intent to bum the relevant stmcture or forest land, thus allowing a defense of voluntary intoxication, we concluded that “arson requires only a general criminal intent and that the specific intent to set fire to or bum or cause to be burned the relevant stmcture or forest land is not an element of arson.” (Id., at p. 84.) In this context of the defendant’s deliberate setting of fire to weeds, which in turn ignited a canyon, we explained that “there must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property.” (Id., at p. 89, italics added.)

Now embracing the commissioner’s misreading of Atkins, supra, 25 Cal.4th 76, the majority describes the italicized language quoted above as “describ[ing] arson’s malice requirement . . . .” (Maj. opn., ante, at p. 1029.) To the contrary, Atkins repeatedly describes the element of malice as requiring something in addition to the intent to commit the volitional act that starts a fire, namely, “ ‘a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act. . . .’ ” (Atkins, at p. 85, quoting § 450, subd. (e); see also Atkins, at p. 88.)4 This additional element was present in Atkins', it is not present here.

The majority’s effort to demonstrate the evidence in this case would have supported a finding of malice is unconvincing. First, relying on the testimony of one of the two homeowners who reported the fire, the majority states the minors “were yelling, laughing, ‘high-fiving,’ and seemingly having a good time moments after they realized the hillside was on fire.” (Maj. opn., ante, at p. 1031.) What the majority overlooks is that the commissioner did not rely on this testimony, after the parties stipulated and the commissioner acknowledged the witness had mentioned no such behavior when interviewed by police.5 Instead of relying on disputed circumstantial evidence of the minors’ mental state, the commissioner, as noted, simply presumed malice from the fact they had lit and thrown a firecracker. Second, the majority states that a third minor, who did not want to participate in lighting fireworks, had “feared that someone might get injured” and thus “alerted V.V. and J.H. beforehand to the dangers of playing with firecrackers.” (Maj. opn., ante, at p. 1030.) While J.H. did tell police the third minor feared someone might get hurt, the third minor mentioned injury due to fire only after the fire started, as part of *1038the minors’ discussion about whether they should turn themselves in to the authorities.6 Finally, the majority asserts the minors “ran away and did not notify the authorities about the brush fire.” (Maj. opn., ante, at p. 1031.) This statement, too, mischaracterizes the record. The minors, who had no cell phone and no prior involvement with the criminal justice system, ran down the hill and immediately volunteered to the first officer they encountered their role in starting the fire.7

In short, I find no substantial evidence in the record to support the finding of malice the arson statute requires but the commissioner failed to make. Nor, absent such evidence, can I agree with the majority that malice may be presumed simply from the doing of a volitional act that is not inherently or necessarily “wrongful” (§ 450, subd. (e)) or done with “a wish to vex, defraud, annoy, or injure another person . . .” (ibid.).

The majority’s determination the minors committed arson is particularly inappropriate in light of section 452, which the Legislature enacted in 1979 specifically to punish reckless behavior that sets fire to forest lands. Under section 452, “[a] person is guilty of unlawfully causing a fire when he recklessly sets fire to or bums or causes to be burned, any stmcture, forest land or property.” The term “recklessly,” in this context, “means a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, bum, or cause to bum a stmcture, forest land, or property. The risk shall be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” (§ 450, subd. (f).) The enrolled bill report on the legislation that became section 452 cited carelessness with fireworks as a paradigmatic example of conduct the Legislature intended to reach.8 (See generally Conservatorship of Whitley (2010) 50 Cal.4th 1206, *10391218, fn. 3 [117 Cal.Rptr.3d 342, 241 R3d 840] [enrolled bill reports properly considered as evidence of legislative intent].)

To presume malice from nothing more than the volitional act that causes a fire to start could render every unlawful fire under section 452 also an arson under section 451. The Legislature, which we assume does not perform idle acts or enact superfluous legislation (e.g., Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390 [97 Cal.Rptr.3d 464, 212 P.3d 736]), could not have intended this result. Evidently anxious to avoid any such logical, albeit extreme, extension of its holding, the majority offers hypothetical fire-starting scenarios to demonstrate that not all recklessly started fires will qualify as arson. I find the scenarios either contrived and implausible, as that of “a person who carves open a firecracker to check for gunpowder, next to a lit cigarette” (maj. opn., ante, at p. 1032, fn. 7), or practically indistinguishable from the case before us, as that of “a person who lights a firecracker, but instead of throwing it, fumbles with it, and it falls on dry brush” (ibid.). To attribute special significance to the fact a firecracker is thrown, as the majority does, seems odd, because one does not ordinarily continue to hold a firecracker that is about to explode. Had the minors deliberately thrown the firecracker into dry brush, the throwing might have had special significance. But the commissioner expressly found the minors had not intended to set a fire and expressly based his ruling on the assumption they were “trying to hit a patch of green or a patch of cement.”

In summary, I find the majority’s reasoning and conclusion unsupportable. Accordingly, I dissent.