State v. Nunes

• Decision Date: 31 December 2014
• Docket Number: CR1200998,A152479.
• Citation: 341 P.3d 224,268 Or.App. 299
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Thomas Lee NUNES, Defendant–Appellant.

268 Or.App. 299

341 P.3d 224

STATE of Oregon, Plaintiff–Respondent

v.Thomas Lee NUNES, Defendant–Appellant.

CR1200998

A152479.

Court of Appeals of Oregon.

Argued and Submitted Sept. 23, 2014.

Decided Dec. 31, 2014.

Erik M. Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Matthew J. Lysne, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.

Opinion

HADLOCK, J.

In this criminal case, defendant appeals from a judgment convicting him of five crimes, including two counts of felon in possession of a firearm (FIP), ORS 166.270(1), arguing that the trial court erred in holding that the “anti-merger statute,” ORS 161.067, prevented the two FIP counts from merging.¹ As explained below, we conclude that defendant could properly be convicted of only one count of FIP and, accordingly, reverse the two FIP convictions and remand for entry of a single FIP conviction and for resentencing.² We otherwise affirm.

The relevant facts, which are essentially undisputed for purposes of this appeal, are as follows. Defendant, a convicted felon, and L. Nunes, who retired from a career as a police officer in early 2012, were married for 18 years. Both parties described their marriage as troubled. In May 2012, Nunes moved from the master bedroom to an unfinished guestroom, where she slept on an air mattress.

Nunes possessed a revolver, which she had received as a retirement gift. Nunes testified that she kept the gun on one of the exposed ceiling beams in the guestroom, “pushed way back,” so that her young grandson could not reach it. She also testified that, although defendant knew she had a gun in the house, she was trying to hide the gun from him and, as far as she knew, defendant did not know where she kept the gun. Defendant testified, however, that he had known that Nunes kept her revolver in the guestroom because it was easily visible from the doorway. Defendant reported that Nunes's adult son, who sometimes stayed with them, “advised her, because of [their] arguing and everything, that she should get the gun completely out of sight.”

One day in June 2012, Nunes asked defendant to meet her at a bar because she was “try[ing] to fix some things” with their relationship. After drinking at that bar, at their home, and at another bar, they ended the evening at a third bar located about six blocks from their home. At some point, while at the third bar, Nunes began to exchange text messages with another man. Defendant took Nunes's phone later that night, read the text messages, and decided to start the process of filing for divorce.

Nunes and defendant drove home separately. Nunes arrived first and went to sleep in the guestroom around 1:00 a.m. after barricading the door with furniture. When defendant arrived home, he forced the guestroom door open and turned on the light. Nunes was on the air mattress, under blankets, and defendant thought she was pretending to be asleep. Defendant walked over to the window, where he says he found her revolver in a holster. He testified that he grabbed the gun because he was angry about how easily accessible it was: “[I]t made me mad the whole time it was in there that it was in reach of [Nunes's grandson], mostly, and it was in sight for anybody.” Defendant called Nunes some vulgar names and fired the gun at the air mattress. Defendant later testified that, although he was concerned that Nunes's grandson would find the gun, at the moment when he grabbed it and shot the air mattress, he was only attempting to wake Nunes up. Nunes explained that, although she heard a “really loud pop” and felt her air mattress deflate, she did not know that the sound was a gunshot. Nunes asked defendant to leave the room. Defendant left, but returned in less than a minute and began stomping and kicking Nunes's legs. After defendant left the guestroom for a second time, Nunes waited “until it got quiet” and then went into her grandson's room, locked the door, and went to sleep.³

Defendant went to the kitchen, loaded the revolver with a new round, and locked the gun in his truck underneath some blankets overnight. After taking cash from Nunes's purse and cutting up her credit cards and some other documents, defendant went to the master bedroom, where he stayed awake the rest of the night.

The next morning, Nunes went to the master bedroom to ask defendant for her phone. Defendant was awake but refused to return the phone. Nunes returned to the guestroom, where she noticed that “[e]verything was thrown everywhere. All [her] stuff had been gone through.” She testified that she had not noticed the night before because she was “a little freaked out” and “just went straight to bed.” Nunes also testified that the “first thing that came to [her] mind when [she] saw [the state of her room] was, [she] better look for that gun. And it was gone.” She explained that, although she was “freaked out” that defendant had her gun, she did not report it to the police because she was embarrassed.

Later that morning, defendant drove his truck, with the gun still inside, to the Oregon City Police Department, where Nunes had worked before retiring. He left the gun in the truck and went up to the window, rang the buzzer, and asked to speak to a supervisor. After waiting for approximately three minutes, he went back to his truck for a cigarette. At that point, defendant testified, he “thought that this would be a good time” to get the gun, so he holstered it under his pant leg before returning to the police department lobby.

Defendant was directed to Officer Schmierbach, who had known Nunes and defendant for approximately 11 years. Schmierbach testified that defendant seemed sad and “concerned about his relationship” with Nunes. Defendant explained to Schmierbach that the previous evening “he had been involved in a domestic [dispute] with * * * Nunes where at one point he fired one round from a handgun and * * * he had kicked her” legs. Schmierbach asked defendant, “Do you want to hurt yourself? Do you want to hurt anybody else[?]” Defendant responded that he wanted Schmierbach to take the gun “as safekeeping.” Defendant then raised his right leg and showed Schmierbach that “there was a firearm in an ankle holster on his right ankle.” Schmierbach suspected that defendant was a convicted felon and, after removing the gun from defendant's holster, had a colleague run a criminal-history check on defendant. To avoid any potential conflicts of interest due to his prior relationship with defendant and Nunes, Schmierbach contacted the Clackamas County Sheriff's Office and requested their assistance. Defendant later explained that he wanted to turn the gun in to the police because “he was afraid [that Nunes] would use it against him” and he wanted “to get it out of the house and have it kept safely away from the house.”

As relevant here, defendant was charged with two counts of FIP. The prosecution's theory was that defendant committed the first FIP offense when he fired the gun at Nunes and put the gun into his truck and that he committed the second FIP offense the next day when he retrieved the gun from his truck and walked into the police department. After a bench trial, the trial court found defendant guilty. In announcing its verdict, the trial court stated that defendant

“could have * * * locked the gun in the garage. He could have put it up in the top shelf of the cupboard in the kitchen and then gone to the police department and told them where it was. But no, he takes it with him in the car or vehicle, and then he goes into the police department, and then he goes back out and he straps it onto his leg underneath his jeans. The mind is boggled with that particular behavior.

“But clearly at that point, when he went back out to that car and strapped it on at that point, that was a separate felon in possession of a firearm. * * * He could have left it in the car. If he had left it in the car, I might have had a hard time with it. But I don't because he went back out there and he strapped it on, so I'm finding him guilty of [the second count of FIP].”

At sentencing, defendant argued that the two FIP counts at issue here should merge, or, alternatively, that the court should not impose consecutive sentences. The trial court agreed with defendant that it should not impose consecutive sentences, but did not state its reasoning for entering separate convictions on the two counts of FIP. Defendant appeals, renewing his merger argument.

ORS 161.067, the “anti-merger statute,” governs the circumstances under which multiple guilty verdicts or a defendant's guilty or no-contest pleas to multiple criminal charges should merge into a single conviction. As pertinent here, that statute provides:

“(3) 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.”

We review the trial court's denial of defendant's merger request for legal error and are bound by the court's findings of historical fact if constitutionally sufficient evidence in the record supports them. State v. Davis, 265 Or.App. 425, 438–39, 335 P.3d 322 (2014).

The crime of felon in possession of a firearm is defined by ORS 166.270(1), which provides:

“Any person who has been convicted of a felony under the law of this state or any other state, or who has

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