State v. Burris

Decision Date20 October 2022
Docket NumberSC S068514
Citation370 Or. 339
PartiesSTATE OF OREGON, Respondent on Review, v. MICHAEL GARRETT BURRIS, Petitioner on Review.
CourtOregon Supreme Court

Argued and submitted November 9, 2021; resubmitted January 25, 2022.

On review from the Court of Appeals (CC 16CR75916) (CA A164853). [*]

Sarah De La Cruz, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Jonathan N. Schildt, Assistant Attorney General, Salem argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson Garrett, and DeHoog, Justices. [**]

DUNCAN, J.

In this criminal case, we are asked to determine the legal effect, if any, of a cross-reference between two statutes that criminalize the same conduct: possession of a firearm by a person previously convicted of a felony. The first statute ORS 166.270, defines the felony offense of felon in possession of a firearm. The second statute, ORS 166.250 defines the misdemeanor offense of unlawful possession of a firearm. The statute defining the felony offense includes an exception for certain persons discharged from imprisonment, parole, or probation at least 15 years earlier. ORS 166.270(4)(a). The statute defining the misdemeanor offense does not include a similar exception, but it begins with a prefatory clause that cross-references other statutes, including the statute defining the felony offense; specifically, it begins with the clause: "Except as otherwise provided in *** [ORS] 166.270 ***." ORS 166.250(1). The question is whether the 15-year exception to the felony offense also applies to the misdemeanor offense through the latter's prefatory clause.

Defendant was convicted of attempting to commit the misdemeanor offense. He argues that the 15-year exception to the felony offense applies equally to the misdemeanor offense; he bases that argument on the misdemeanor offense's prefatory clause's reference to ORS 166.270, which defines the felony offense. The state argues otherwise; it contends that the prefatory clause's reference to ORS 166.270 has no legal effect because, by its terms, the 15-year exception to the felony offense applies only to the felony offense and therefore does not create an exception to the misdemeanor offense.

We agree with the state. Although we usually start with the assumption that the legislature intended to give legal effect to all the words of a statute, the historical development of the statutes at issue in this case negates that assumption. As we will explain, an examination of the evolution of the two statutes shows that the prefatory clause's reference to ORS 166.270 is not evidence that the legislature intended the exception to the felony offense to also apply to the misdemeanor offense. Rather, it is an artifact of the conversion to the Oregon Revised Statutes that had no legal effect for decades before the legislature amended the misdemeanor offense in 1989 to prohibit a felon from possessing a firearm. There is nothing suggesting that, in making that amendment, the legislature intended to give new legal effect to the prefatory clause. And reading the prefatory clause as defendant suggests would create unintended conflicts within the statutory scheme enacted by the legislature at that time. We therefore reject defendant's argument and affirm the judgment of the trial court and the decision of the Court of Appeals.

I. BACKGROUND

In 1996, defendant was convicted of a felony in California. In 2016, defendant attempted to purchase a firearm from a store in Oregon. The store clerk asked defendant to complete a background check form that asked, among other things, whether he had ever been convicted of a felony. Defendant answered "no." His application to purchase the firearm was denied. Defendant later told an investigating officer that he had answered "no" because he incorrectly had thought that his 1996 felony conviction had been reduced to a misdemeanor or expunged. The state charged defendant with attempted unlawful possession of a firearm under ORS 166.250(1)(c)(C), which generally prohibits a person who has been convicted of a felony from possessing a firearm, and ORS 161.405(1), which criminalizes attempts to commit crimes.[1]

Defendant argued before trial that the statute defining the misdemeanor offense of unlawful possession of a firearm, ORS 166.250(1), incorporates exceptions to the felony offense of felon in possession of a firearm found in ORS 166.270. Defendant grounded that argument on the prefatory clause to ORS 166.250(1), which provides, "Except as otherwise provided in *** [ORS] 166.270 ***." Based on that clause, defendant moved to present evidence that he fell within an exception to ORS 166.270-specifically, the exception set out in ORS 166.270(4)(a), which applies to persons with a single felony conviction (which did not involve criminal homicide or certain weapons) who have been discharged from imprisonment, parole, or probation for that offense for more than 15 years. ORS 166.270(4)(a). The trial court rejected defendant's argument that the misdemeanor offense defined in ORS 166.250(1) incorporates the exceptions to the felony offense in ORS 166.270 and denied his motion. A jury found defendant guilty of attempted unlawful possession of a firearm.

Defendant appealed his conviction and assigned error to the trial court's decision to preclude evidence that he fell within an exception to ORS 166.270. The Court of Appeals rejected defendant's argument that the prefatory clause in ORS 166.250(1) incorporates exceptions to ORS 166.270. State v. Burris, 309 Or.App. 167, 481 P.3d 319 (2021). According to the court, the prefatory clause in ORS 166.250(1) "simply preserves the viability of statutes that include provisions different from ORS 166.250." Id. at 171. The court concluded that the inclusion of ORS 166.270 in the list of exceptions to ORS 166.250 "means that[,] when a person commits the offense of unlawful possession of a firearm, ORS 166.250 is applicable, except when that person is charged under ORS 166.270." Id. at 172. As a result, the Court of Appeals affirmed the trial court's ruling. Id. Defendant petitioned this court for review, which we granted. State v. Burris, 368 Or. 347, 489 P.3d 540 (2021).

II. ANALYSIS

Defendant maintains that ORS 166.250(1), which defines the offense of unlawful possession of a firearm, incorporates the exceptions to ORS 166.270(1), which defines the offense of felon in possession of a firearm. Whether ORS 166.250(1) incorporates the exceptions in ORS 166.270 is a question of statutory construction. When interpreting a statute, our task is to discern the legislature's intent. ORS 174.020(1)(a). To do so, we consider the text and context of the statute, as well as any helpful legislative history. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009). "

A. The Statutes

ORS 166.250 defines the offense of unlawful possession of a firearm. It provides, "Except as otherwise provided in this section or ORS 166.260, 166.270, 166.273, 166.274, 166.291, 166.292 or 166.410 to 166.470, a person commits the crime of unlawful possession of a firearm" if the person: (1) carries any firearm concealed upon the person; (2) possesses a handgun that is concealed and readily accessible to the person within any vehicle; or (3) possesses a firearm and falls within one of several different categories, including persons who have been convicted of a felony.[2]

For its part, ORS 166.270 defines two crimes: felon in possession of a firearm, ORS 166.270(1), and felon in possession of a restricted weapon, ORS 166.270(2). Only ORS 166.270(1) is relevant in this case, and it provides:

"Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns or has in the person's possession [370 Or. 345] or under the person's custody or control any firearm commits the crime of felon in possession of a firearm."

ORS 166.270 includes exceptions to ORS 166.270(1). Those exceptions are set out at ORS 166.270(4) and include the exception at issue in this case for certain felons who completed their sentences more than 15 years ago:

"(4) Subsection (1) of this section does not apply to any person who has been:
"(a) Convicted of only one felony under the law of this state or any other state, or who has been convicted of only one felony under the laws of the United States, which felony did not involve criminal homicide, as defined in ORS 163.005, or the possession or use of a firearm or a weapon having a blade that projects or swings into position by force of a spring or by centrifugal force, and who has been discharged from imprisonment, parole or probation for said offense for a period of 15 years prior to the date of alleged violation of subsection (1) of this section[.]"

Although both unlawful possession of a firearm under ORS 166.250(1)(c)(C) and felon in possession of firearm under ORS 166.270(1) prohibit felons from possessing firearms, they carry different penalties. Unlawful possession of a firearm under ORS 166.250(1) is a Class A misdemeanor, while felon in possession of firearm under ORS 166.270(1) is a Class C felony. ORS 166.250(5); ORS 166.270(5).

B. The Parties' Arguments

In most cases involving statutory construction, the parties' dispute centers around how to give legal effect to the words contained in a statute. In this case, however, the parties' dispute centers around whether to...

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