State v. O'Dell

• Decision Date: 16 July 2014
• Docket Number: A151261.,11C46931
• Citation: 330 P.3d 1261,264 Or.App. 303
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Richard Dustin O'DELL, Defendant–Appellant.
• Court: Oregon Court of Appeals

264 Or.App. 303

330 P.3d 1261

STATE of Oregon, Plaintiff–Respondent,

v.Richard Dustin O'DELL, Defendant–Appellant.

11C46931; A151261.

Court of Appeals of Oregon.

Argued and submitted Dec. 9, 2013.

Decided July 16, 2014.

Jason E. Thompson argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson, LLP, Salem.

Paul Smith, Attorney–in–Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

EGAN, J.

After police discovered four firearms in a cabinet in the house where he was living, defendant was charged with four counts of being a felon in possession of a firearm, ORS 166.270. A witness had seen defendant handling two different firearms on two separate occasions. Later, while executing a search warrant at the residence, the police discovered two additional firearms in a cabinet alongside the two that defendant had been seen handling. A jury found defendant guilty on all four counts. He appeals the resulting judgment of conviction. We write to address only his challenges to (1) the trial court's denial of his motions for a judgment of acquittal (MJOAs) on the counts concerning the two firearms that he was not seen handling and (2) the denial of his motion to merge the four guilty verdicts into a single conviction. ¹ We conclude that there was no error in the denial of defendant's MJOAs, but that the four verdicts should have merged into a single conviction.

“Our standard for reviewing the denial of the motion for judgment of acquittal is whether, viewing the evidence in the light most favorable to the state, any rational trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt.” State v. Paragon, 195 Or.App. 265, 267, 97 P.3d 691 (2004). In accordance with that standard, the facts are as follows. Defendant, a convicted felon, was living at his father's home. On December 7, 2010, defendant's wife visited him there. Defendant disappeared from his wife's view and returned holding a handgun. He showed it to his wife, asked her to hold it, and inquired whether she thought it was the type of firearm she could handle. The handgun was a Star Eibar 9mm.

Defendant's wife testified that a similar event had occurred early in the summer of 2011, when she was again at the home of defendant and his father. That time, defendant left his wife's view and returned with a Bushmaster .223 rifle.

The police procured a warrant to search for firearms in the home. While executing that warrant in June 2011, the police opened a cabinet in the bedroom of defendant's father. One of the officers testified that the cabinet was locked when they arrived, but that the key was in the lock. Defendant's sister testified that the key was “always” on top of the cabinet, and that her father rarely locked things. Defendant's wife testified that defendant had access to his father's bedroom. Inside the cabinet were four firearms that formed the bases for the charges at issue: a Bushmaster .223 (Count 1), a TEC 9 (Count 2), a Star Eibar 9mm (Count 3), and a Smith and Wesson .357 Airlite (Count 4). The state brought those charges by way of an information; each count was identically worded, except for the description of the firearm at issue. Count 1, for example, read, “The defendant, on or between December 1, 2010 to June 25, 2011, in Marion County, Oregon, having previously been convicted [of a felony], did unlawfully and knowingly own and have in said defendant's possession, custody and control a firearm, to wit: a Bushmaster [.]223 rifle.” ²

Defendant moved for judgments of acquittal on Counts 2 and 4 at the close of the state's case. He did not dispute that there was sufficient evidence for purposes of an MJOA to find that he had possessed the Bushmaster .223 and the Star Eibar 9mm. Instead, he argued that there was insufficient evidence from which to conclude that he had, beyond a reasonable doubt, owned, possessed, or had the other two firearms under his control or custody. The trial court denied the motions.

A jury returned guilty verdicts on all four counts. At sentencing, defendant argued that the four verdicts should merge into a single conviction under ORS 161.067(3). The trial court rejected that argument and instead entered judgment reflecting four separate convictions. This timely appeal followed.

We begin with defendant's assignments of error to the denial of his MJOAs on Counts 2 and 4.³ORS 166.270(1) provides, in pertinent part:

“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 or under the person's custody or control any firearm commits the crime of felon in possession of a firearm.”

ORS 161.015(9) defines possession for purposes of ORS 166.270: “ ‘Possess' means to have physical possession or otherwise to exercise dominion or control over property.” ⁴ Defendant asserts that there was legally insufficient evidence to conclude that he owned, possessed, or had in his custody or control either the TEC 9 or the Smith and Wesson. He does not attack the sufficiency of the state's evidence with respect to any other element of the crime. Defendant argues that the state proved, at most, that he had access to the firearms, and that access is not enough to show possession, custody, or control within the meaning of ORS 166.270(1).⁵ The state counters that the evidence was sufficient to show that defendant had constructive possession of all of the firearms in the cabinet and that the statute, as applied in our case law, does not require proof that defendant exercised that custody or control.

The present case does not require us to explore the bounds of the interrelated (and perhaps indistinguishable) concepts of possession, control, or custody. See State v. Casey, 346 Or. 54, 58, 203 P.3d 202 (2009) ( “Ownership, possession, custody, and control are related and often overlapping concepts.”). That is because our case law is clear that ORS 166.270 criminalizes constructive as well as actual possession, and the state was thus not required to show that defendant actually handled the firearms in question in order to obtain a conviction under ORS 166.270. See Casey, 346 Or. at 59, 203 P.3d 202 (“ORS 166.270 prohibits constructive as well as actual possession.”); State v. Normile, 52 Or.App. 33, 39, 627 P.2d 506 (1981) (“Possession, as control or the right to control, may be actual or constructive and may be proved by circumstantial evidence.”); see also State v. Miller, 238 Or. 411, 414, 395 P.2d 159 (1964) (evidence sufficient to support conviction where defendant was found driving a car with a gun that was “obvious[ly]” sticking out from under the front seat); State v. Kelley, 12 Or.App. 496, 500, 507 P.2d 837 (1973) (“To constitute possession of a * * * weapon under ORS 166.270, it is sufficient that defendant have constructive possession and immediate access to the weapon to bring her within the statute.”).

There was evidence that defendant had access to his father's room where the cabinet was located. There was evidence from which it could be inferred that the four weapons that formed the bases of the four charges were stored in the same cabinet, and that defendant had, on two separate occasions months apart—one of them shortly before the execution of the search warrant—opened the cabinet, decided to remove a weapon, and then did so. The cabinet was locked when the police arrived, and the jury could, quite reasonably, infer that defendant had locked the cabinet. That was a sufficient evidentiary basis for the jury to conclude that defendant constructively possessed each of the four firearms in the cabinet. The trial court did not err in denying defendant's MJOAs.

We turn to defendant's contention that the trial court erred in refusing to merge the four guilty verdicts into a single conviction. We review for legal error. State v. Huffman, 234 Or.App. 177, 183, 227 P.3d 1206 (2010). The relevant statute is ORS 161.067(3), which provides:

“When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent.”

Defendant points to our application of that statute in State v. Torres, 249 Or.App. 571, 277 P.3d 641, rev. den.,352 Or. 378, 290 P.3d 814 (2012), in support of his argument that the trial court should have merged the four guilty verdicts into a single conviction. The state concedes that under Torres, which was decided after defendant was sentenced, the trial court erred in not merging the guilty verdicts for Counts 2 and 4 (concerning the two firearms that were discovered in the cabinet, but that defendant was not seen with), but points to our decision in State v. Bell, 246 Or.App. 12, 264 P.3d 182 (2011), rev. den.,351 Or. 678, 278 P.3d 18 (2012), and contends that the trial court did not err in refusing to merge the guilty verdicts for Counts 1 and 3 (concerning the firearms that defendant was seen handling).

In Bell, the defendant was charged with three counts of being a felon in possession of a firearm for his alleged possession of three different guns. The guns were found in three different places, and there was evidence that the defendant had acquired each weapon from a different person. As is the...