State v. Briney
| Decision Date | 31 December 2008 |
| Docket Number | CC041329M,CA A128505.,SC S055567. |
| Parties | STATE of Oregon, Respondent on Review, v. Chason Lynn BRINEY, Petitioner on Review. |
| Court | Oregon Supreme Court |
Garrett A. Richardson, Multnomah Defenders, Inc., Portland, argued the cause and filed the petition for petitioner on review.
Ryan Kahn, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
DE MUNIZ, C.J.
This case concerns the meaning of the statutory definition of "firearm," ORS 166.210(3), as that term is used in describing the crime of carrying a concealed firearm under ORS 166.250(1)(a), set out post. Defendant was charged with carrying a concealed firearm, a pistol, in violation of ORS 166.250(1)(a). In his trial to the court, defendant argued that, because the pistol had a broken firing pin at the time he carried it, it was not "readily capable of use as a weapon" and therefore was not within the statutory definition of a firearm. In response, the trial court ruled that, although the evidence showed that a replacement firing pin was not immediately available to defendant, his pistol nevertheless fell within the statutory definition of a firearm. The trial court convicted defendant of unlawfully carrying a concealed firearm and the Court of Appeals affirmed that judgment without written opinion. State v. Briney, 216 Or.App. 337, 172 P.3d 305 (2007). We allowed defendant's petition for review and now, for the reasons that follow, reverse the judgment of the trial court and the decision of the Court of Appeals. We conclude that, in this case, defendant's pistol was not "readily capable of use as a weapon" and, therefore, was not a concealed firearm prohibited under ORS 166.250(1)(a).
The facts are undisputed. In September 2004, Grants Pass police officers responded to a report of a possible forced entry into a motor vehicle. At the scene of the reported incident, Officer Peil encountered defendant and two other suspects. Peil asked defendant for consent to search his person. Defendant immediately responded, "All I have is this," and produced a small pistol from his pocket. Defendant gave the pistol to Peil, who identified it as a Raven Arms .25 caliber semi-automatic pistol. The pistol belongs to a group of weapons colloquially known as "Saturday Night Specials," cheaply made handguns typically costing less than $100. The officer examined it, discovering a single round positioned in the chamber and additional rounds in the magazine.
Defendant informed the officer that the pistol lacked a working firing pin, rendering it incapable of firing despite the fact that it was loaded. Peil nevertheless cited defendant for carrying a concealed firearm in violation of ORS 166.250(1)(a).
Before trial, an Oregon State Police criminalist confirmed defendant's claim that the weapon did not have a working firing pin and could not be fired without one. The criminalist, however, successfully fired the weapon after obtaining and installing a functional firing pin. The parties stipulated that the installation process, once the pin was obtained, would take only a matter of minutes for someone familiar with firearms.
The parties also stipulated that a firing pin that could render the pistol operational was not available at any Grants Pass area gun store at the time of defendant's arrest, but could have been obtained by mail order or over the Internet at a cost of between $5 and $15. Overnight delivery was generally available for an increased fee.
At trial, both parties focused on whether defendant's inoperative pistol was nevertheless "readily capable of use as a weapon," a necessary characteristic for the pistol to be considered a "firearm" as defined in ORS 166.210(3).1 Defendant argued that, because a replacement firing pin for the pistol was at least an overnight delivery interval away, the pistol could not "readily" be used as a weapon and therefore fell outside the statutory definition of a "firearm." In response, the state cited several Oregon cases for the proposition that the dispositive factor in determining whether a weapon was "readily capable" of use was not the length of time needed to procure parts to make the weapon operational, but rather the ease with which such a conversion could occur.2
The trial court agreed with the state, concluding that the Court of Appeals decisions on which the state had relied clearly established that defendant's pistol fell within the statutory definition of a "firearm." In a letter opinion, the trial court wrote:
(Emphasis in original.)
The trial court subsequently found defendant guilty of unlawfully carrying a "firearm concealed upon the person," ORS 166.250(1)(a), a Class A misdemeanor. As noted, defendant appealed that judgment and the Court of Appeals affirmed it without opinion. We allowed defendant's petition for review to construe the meaning of the term "firearm" in ORS 166.250(1)(a), and more specifically, the meaning of the phrase "readily capable of use as a weapon" as it is used to define a "firearm" in ORS 166.210(3).
On review, defendant reiterates his argument that the pistol he carried was not "readily capable of use as a weapon" because (1) it did not have a functional firing pin, and (2) the fastest a replacement could be procured was by overnight delivery following a mail order or Internet purchase. In essence, defendant's position is that, to unlawfully carry a concealed firearm in violation of ORS 166.250(1)(a) the concealed weapon must either be fully operational at the time that it is being unlawfully carried, or promptly capable of being made so at that time. As set out in greater detail below, the state, for its part, argues that, in this case, "readily capable" should not be read to encompass the sense of immediacy for which defendant argues.
We begin with the text and context of the statutes at issue here using the familiar methodology set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). Defendant was convicted of violating ORS 166.250(1)(a), which provides, in part:
"Firearm," in turn, is defined in ORS 166.210:
(Emphasis added.)
The statute's first requirement that the pistol be designed to expel a projectile is not at issue here. Defendant's pistol, despite being cheaply manufactured and distributed, functions like any other firearm, and the parties have stipulated to that fact. The parties also agree that, for purposes of this case, the phrase "use as a weapon" refers to only the employment of a firearm to fire bullets.4
The statute's second requirement, however, presents an issue of first impression for this court: In considering the crime of unlawfully carrying a concealed firearm, when is a firearm "readily capable of use as a weapon"? Because the legislature has not defined "readily" or "capable" as those terms are used in ORS 166.210(3), and because those words are words of common usage, we give them their plain, ordinary meaning. PGE, 317 Or. at 611, 859 P.2d 1143. The most common definition of "capable" in use today is "constituted, situated, or characterized as susceptible or open to being affected." Webster's Third New Int'l Dictionary 330 (unabridged ed 2002). A pistol that lacks a working firing pin is nevertheless "susceptible or open to being affected" by the relatively minor repair of reinstalling a new firing pin that would allow the pistol to function as designed; thus such a pistol is "capable" of use as a weapon.
Here, however, as the trial court recognized, the word "readily" is an adverb that modifies the adjective "capable." Under the dictionary definition that is most applicable in this case, "readily" means:
"a: with prompt willingness: without hesitating, quibbling, or delaying: with alacrity: WILLINGLY * * * b: with fairly quick efficiency: without needless loss of time: reasonably fast: SPEEDILY * * * c: with a fair degree of ease: without much difficulty: with facility: EASILY * * *."
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