State v. Casey

• Decision Date: 05 March 2009
• Docket Number: No. CA A125350.,No. SC S055674.,No. CC CR030474.,CC CR030474.,CA A125350.,SC S055674.
• Citation: 346 Or. 54,203 P.3d 202
• Parties: STATE of Oregon, Respondent on Review, v. Richard Brian CASEY, Petitioner on Review.
• Court: Oregon Supreme Court

203 P.3d 202

346 Or. 54

STATE of Oregon, Respondent on Review, v. Richard Brian CASEY, Petitioner on Review.

No. CC CR030474.

No. CA A125350.

No. SC S055674.

Supreme Court of Oregon, En Banc.

Argued and Submitted November 3, 2008.

Decided March 5, 2009.

On review from the Court of Appeals.^*

Shawn Evans Wiley, Chief Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Denis M. Vannier, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

KISTLER, J.

The question in this case is whether defendant constructively possessed a gun that his guest put on defendant's counter as defendant and the guest briefly stepped out of defendant's trailer. The trial court denied defendant's motion for judgment of acquittal and, sitting as the trier of fact, found defendant guilty of being a felon in possession of a firearm. The Court of Appeals affirmed. State v. Casey, 215 Or.App. 76, 168 P.3d 315 (2007). We allowed defendant's petition for review and now reverse the Court of Appeals decision and the trial court's judgment.

Because this appeal arises from the trial court's denial of defendant's motion for judgment of acquittal, we state the facts in the light most favorable to the state. State v. Wolleat, 338 Or. 469, 471, 111 P.3d 1131 (2005). Defendant had three guests over to his trailer on a piece of property in Yamhill County. One of his guests, Mealue, had concealed a gun on his person before he entered defendant's trailer. Approximately 15 minutes after defendant's guests arrived, two police officers drove up to the trailer to investigate a trespassing complaint against defendant. As the officers arrived, defendant and another guest began leaving the trailer, and the officers asked the other two guests to come out of the trailer. Defendant was the second person to come out of the trailer, and Mealue was the third. As Mealue was leaving the trailer, he took the gun from under his shirt and put it on a counter just inside the door but visible from outside the trailer. As Mealue did so, he told the officers, "I have a gun * * * and it is on the counter, just to let you boys know." Defendant said that the gun was not his and that he "didn't see it until [he was] on the way out of his trailer."

After defendant and his guests came outside, the officers told defendant that he did not have a right to be on the property. Defendant said that he did and that he had documents to prove it. With the officers' consent, defendant went back into the trailer and got the documents. After defendant got the documents, one of the officers noticed that a bowl inside the trailer appeared to contain contraband. Again with the officers' consent, defendant went into the trailer and retrieved the bowl, which contained rocks. The officers asked if anyone was a convicted felon, and defendant acknowledged that he was.

The officers decided to retrieve the gun from the trailer. Defendant objected to the officers' going into his trailer and told them that he or one of his guests would get the gun. An officer told defendant that defendant could not get the gun because he was a felon and doing so would be illegal. As one of the officers began walking toward the trailer to get the gun, defendant "raced" to the door, grabbed the officer's arm, and said, "[Y]ou are not going into my house." The officer, however, had gotten there first and blocked the door to the trailer. The other officer restrained defendant while the first officer reached into the trailer and took the gun off the counter. After they had gotten the gun, one of the officers told defendant that he could not have allowed defendant to get the gun because "you are a felon and that's basically illegal." Having said that, the officers arrested defendant for being a felon in possession of a firearm, and the state charged him with that offense.

At the close of the state's case, defendant moved for a judgment of acquittal, arguing, among other things, that the evidence was insufficient to prove that he had possessed Mealue's gun. The trial court denied the motion. Later, sitting as the trier of fact, the trial court found defendant guilty of being a felon in possession of a firearm. The court concluded that, although defendant did not have actual possession of the firearm, he had constructive possession of it. The court found that, when defendant went back into the trailer to retrieve the documents and suspected contraband (the bowl of rocks), the gun was "something * * * over which [defendant] had a right to exercise control just like everything else that was inside of the trailer." As the court explained, defendant "did voluntarily go back into the residence, come within range of the weapon at the time when he was a convicted felon * * * and that constitutes felon in possession of a firearm." The trial court entered judgment accordingly.

The Court of Appeals affirmed the trial court's judgment. Rather than focus on defendant's entries into the trailer, as the trial court had, the Court of Appeals focused on defendant's attempt to deny the officers entry into his trailer. Id. at 81-82, 111 P.3d 1131. The court explained that "defendant knowingly exercised control over the firearm by telling the officers that he would retrieve it from the trailer for them and by walking toward the trailer to do that." Id. We allowed defendant's petition for review to consider whether the evidence was sufficient to permit a reasonable trier of fact to find beyond a reasonable doubt that defendant possessed Mealue's gun. See State v. Fries, 344 Or. 541, 545, 185 P.3d 453 (2008) (stating the standard of review).

In analyzing that question, we begin with the text of ORS 166.270(1). That statute provides that a person commits the crime of being a felon in possession of a firearm if the person "has been convicted of a felony * * * [and] owns or has in the person's possession or under the person's custody or control any firearm." The plain wording of that statute requires proof of three elements. The first element is that the person has been convicted of a felony, which defendant does not challenge. The second element is that the item in question is a firearm, which defendant does not challenge on appeal.¹ Finally, the third element is that a defendant must either "own" or have "possession," "custody," or "control" of the firearm.

Ownership, possession, custody, and control are related and often overlapping concepts. Originally, the legislature did not define any of those terms,² and this court historically focused on the broader legal concepts of actual and constructive possession in interpreting the felon-in-possession statute. In 1964, this court held that ORS 166.270 prohibited constructive as well as actual possession of a firearm without ever discussing whether it based that holding on the word "possession" or the word "control" in ORS 166.270. See State v. Miller, 238 Or. 411, 414, 395 P.2d 159 (1964) ("Cases reaching a result seemingly contrary to our present decision and the above-cited cases may be distinguished by the wording of the particular concealed weapons statute. For example, People v. Liss, 406 Ill. 419, 94 N.E.2d 320 (1950), involved an Illinois statute prohibiting concealment of a weapon `on or about his person.'").

In 1971, as part of a major revision of the criminal code, the legislature defined the word "possession" for purposes of both the 1971 act and also for existing offenses, including ORS 166.270. See Or. Laws 1971, ch. 743, § 5 ("[T]he provisions of this Act shall govern the construction of and punishment for any offense defined outside this Act * * *."). Under that definition, "`possess' means to have physical possession or otherwise to exercise dominion or control over property." ORS 161.015(9).³ That definition of "possess," one of the acts prohibited in ORS 166.270, codifies the concepts of actual and constructive possession. See Fries, 344 Or. at 545, 185 P.3d 453 (so stating). The 1971 definition also appears to be broad enough to encompass the other acts that ORS 166.270 prohibits.⁴ Ordinarily, one who "owns" or who has "custody" of an object "exercises dominion and control" over it. The word "control" is found in both the definition of "possess" in ORS 161.015(9) and in ORS 166.270 itself, and the definition of possession in ORS 161.015(9) is consistent with this court's opinion in Miller, which held that ORS 166.270 prohibits constructive as well as actual possession.

This case, however, does not require us to decide whether the definition of "possess" in ORS 161.015(9) subsumes every manifestation of the four acts listed in ORS 166.270. In this case, the parties agree that the controlling question is whether defendant "possessed" Mealue's gun, and they assume that ORS 161.015(9) supplies the relevant definition of that word. Specifically, the parties' debate focuses on whether defendant constructively possessed the gun—namely whether he "exercise[d] dominion or control" over it. See ORS 161.015(9); Fries, 344 Or. at 545, 185 P.3d 453 (discussing statutory definition of constructive possession).

At its core, constructive possession is a way to broaden the crime of possession beyond actual physical control. See Wayne R. LaFave, 1 Substantive Criminal Law § 6.1(e), 433 (2d ed. 2003) ("Constructive possession, which is simply a doctrine used to broaden the application of possession-type crimes to situations in which actual physical control cannot be directly proved, is often described in terms of dominion and control." (omitted)); see also Charles H. Whitebread & Ronald Stevens, Constructive Possession in Narcotics Cases: To Have and Have Not, 58 Va. L. Rev. 751, 755 (1972) (noting that...