State v. Normile

• Decision Date: 04 May 1981
• Docket Number: Nos. 10-79-06665,10-79-09744 and 10-79-11739,s. 10-79-06665
• Citation: 52 Or.App. 33,627 P.2d 506
• Parties: STATE of Oregon, Respondent, v. Norman Richard NORMILE, Appellant. ; CA 17890, 17891 and 17892.
• Court: Oregon Court of Appeals

Page 506

627 P.2d 506

52 Or.App. 33

STATE of Oregon, Respondent, v. Norman Richard NORMILE, Appellant.

Nos. 10-79-06665, 10-79-09744 and 10-79-11739; CA 17890,

17891 and 17892.

Court of Appeals of Oregon.

Argued and Submitted Feb. 18, 1981.

Decided May 4, 1981.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.

GILLETTE, Presiding Judge.

Defendant appeals from the judgments entered on his convictions in three separate criminal cases involving distinct incidents. The cases have been consolidated for purposes of appeal. Rule 6.30, Rules of Appellate Procedure. In case number 10-79-06665, defendant was charged with and convicted of being an Ex-Convict in Possession of a Concealable Firearm, ORS 166.270, and Driving Under the Influence of Intoxicants (DUII), ORS 487.540. He was sentenced to five years on the first conviction and 270 days on the DUII conviction, the sentences to run consecutively. He was also ordered to pay costs of $468.74. In case number 10-79-09744, the defendant was convicted of Unlawful Possession of a Controlled Substance, ORS 475.992. He was sentenced to a term of 20 years. Finally, in case number 10-79-11739, defendant was charged with two counts of Unlawful Possession of a Controlled Substance, ORS 475.992, and the offense of Driving While Suspended, ORS 487.560. The trial court merged the two convictions for Unlawful Possession and imposed a 20 year sentence for the conviction. Defendant was also sentenced to five months, seven days on the Driving While Suspended charge. The two 20 year sentences in cases 10-79-09744 and 10-79-11739 were ordered to run concurrently with each other and consecutive to the five year sentence imposed in case number 10-79-06665.

On appeal, the defendant assigns as error (1) the trial court's denial of his motion to suppress evidence seized as a result of a warrantless search of his car; (2) the court's failure to grant, on its own motion, a judgment of acquittal on the charge of Ex-Convict in Possession of a Concealable Firearm; (3) the assessment of costs against defendant in case No. 10-79-06665; (4) the imposition of the concurrent 20 year sentences for Unlawful Possession of a Controlled Substance, and (5) the forfeiture of defendant's security deposits in cases 10-79-06665 and 10-79-09744. We agree with defendant's third and fourth assignments of error, but affirm in all other respects.

1. Motion to suppress Case No. 10-79-06665

At approximately 1 a. m. on July 8, 1979, a Eugene police officer, Officer Rainey, stopped the defendant's car because he thought defendant might be driving while intoxicated. As the car was pulling to the side of the road, the officer noticed that a person seated in a passenger seat briefly ducked down and forward and slid over to the right side of the car. The officer could not tell what she was doing.

At the time of the stop, the defendant was driving. As he stepped out of the car, Rainey saw a clear glass beer bottle with liquid residue on the back seat and loose handgun cartridges, believed to be either .38 or .357 calibre, on the floor of the car near the driver's seat. The officer requested identification from defendant. He could not produce any; neither could he produce any papers showing ownership of the car. According to the officer, both the defendant and his passenger, Susan Woodward, told him that they were in the process of buying the car and had obtained it a month ago. A law student observer, riding with Rainey that night, confirmed these events. Woodward testified that she told the officer that the car belonged to her alone. A subsequent vehicle check showed that the car was registered to a third person.

Meanwhile, a second officer had arrived and was watching Woodward as the defendant was being arrested for driving under the influence. Woodward asked if she could return to the car because she was cold and wanted to smoke a cigarette. The officer allowed her to do so. When Rainey noticed Woodward in the car he asked her to get out again. As she was getting out he observed that a blanket which he previously seen thrown on the seat was now tucked down in a position toward the floor so that it covered the space between the seat and the floor.

At this point, Rainey decided to search the car. He found two guns underneath the front seat. After discussing the ownership of these guns with Woodward, he asked her if he could search the trunk. According to both officers, Woodward indicated that he could do so. Woodward denied giving consent. When Rainey opened the locked trunk, he found a locked box inside. He opened this box as well. Among other things, the box contained a gun.

Rainey testified that Woodward claimed that she had never seen the box and did not know to whom it belonged. Rainey asked if he could search the box and she answered that she did not care. Woodward stated that she at first told Rainey that she knew nothing about the box, but later admitted that it was hers. It is not clear when this admission was made. Rainey opened both the trunk and the box with the keys he found on the key ring in the ignition of the car. Woodward was placed under arrest for unlawful possession of a weapon. The car was secured and towed to a controlled lot. Later, a search warrant was obtained for a further search of the car and a suitcase was found in the back seat.

2. Search of the car Case No. 10-79-06665

Defendant contends that the officer lacked probable cause to search the car and that no exigent circumstances existed which would justify an immediate warrantless search. He also claims that Woodward's consent to search the trunk was invalid in that it was tainted by the officer's initial misconduct. Alternatively he argues that, even if her consent to search the trunk was valid, no consent to search the locked box was given. ¹ Defendant does not challenge either the initial stop or his subsequent arrest.

A search of an automobile may be made without a warrant if (1) there is probable cause to believe that the vehicle contains contraband, stolen goods, or evidence of a crime, and (2) there are exigent circumstances present which require that the vehicle be searched without obtaining a warrant. State v. Greene, 285 Or. 337, 340, 591 P.2d 1362 (1979).

In this case, the officer testified that he searched the car because of the possibility of additional open containers as evidenced by the bottle he spotted, and because of his concern that there may have been weapons in the car as evidenced by the cartridges lying on the floor, Woodward's furtive gesture during the initial stop and her action in moving the blanket before she exited from the car the second time. These facts considered together establish probable cause to believe that the car might contain weapons. ² See State v. Crockett, 34 Or.App. 1019, 1023, 580 P.2d 214 (1978). The officer initially searched under the front seat of the car the area where, because of Woodward's actions, he suspected weapons might be. It was only after he found the guns that he searched the rest of the car. The belief that weapons might be present, together with the inherent mobility of the car and the fact that Woodward was not yet in custody, justified the immediate search of the car. ³

The warrantless search of the trunk and box were also valid. The officer asked for and received Woodward's consent to search the trunk. She then disclaimed any interest in or knowledge of the box found inside. While Woodward took issue with some of the officers' version of what occurred, the trial court found the search was valid. Therefore, we presume that he believed the officers' testimony and not Woodward's. Where, as here, there is sufficient evidence to support the trial court's finding, we are bound by that finding. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). We conclude that the warrantless search of both the car and the trunk, as well as the locked box, was valid. All evidence seized as a result of the search was properly admitted at trial.

3. Sufficiency of the evidence Case No. 10-79-06665

Defendant contends that there was insufficient proof to establish beyond a reasonable doubt his possession of any one of the firearms. At trial, both the defendant and Woodward testified that Woodward had bought the guns and placed them in the car without defendant's knowledge. Woodward indicated that she was later convicted on a charge of unlawful possession of a weapon. Defendant stated that he did not know the guns were in the car until just before being pulled over by Officer Rainey. Defendant admitted that both he and Woodward owned the car, but explained that they had been separated for a time and that, during the separation, Woodward had possession of the car; they had reconciled a few days before the incident. In his brief, however, defendant concedes that at least one of the guns under the front seat was situated in such a way that it was easily accessible to the driver of the car.

Possession, as control or the the right to control, may be actual or constructive and may be proved by circumstantial evidence. State v. Nehl, 19 Or.App. 590, 592, 528 P.2d 555 (1975). Moreover, possession or control may be shared with others. As we stated in State v. Nehl, supra " * * * evidence that the contraband is found in quarters owned and occupied by the defendant is sufficient to allow the inference that he controls or has the right to control its contents, even though others may be present and may share control jointly. * * * " Id. at 592, 528 P.2d 555.

In this case, the defendant jointly owned the car in which the guns...