State v. Perry

• Decision Date: 09 February 2000
• Citation: 996 P.2d 995,165 Or. App. 342
• Parties: STATE of Oregon, Respondent, v. Morgan Joel PERRY, Appellant.
• Court: Oregon Court of Appeals

996 P.2d 995

165 Or. App. 342

STATE of Oregon, Respondent, v. Morgan Joel PERRY, Appellant.

(98-01-40848; CA A102784)

Court of Appeals of Oregon.

Argued and Submitted August 24, 1999.

Decided February 9, 2000.

Leland R. Berger, Portland, argued the cause and filed the brief for appellant.

Anne L. Cottrell, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

De MUNIZ, P.J.

Defendant appeals from a judgment of conviction for unlawful possession of a firearm. ORS 166.250(1). Defendant argues that there was insufficient evidence that the handgun he possessed was readily capable of use as a weapon and that, even if it was readily capable of use as a weapon, he falls within the "place of business" exception to the firearms possession statute. ORS 166.250(2)(b). We affirm.

On the evening of January 11, 1998, defendant was working alone at a convenience store in a high-crime area of northwest Portland. Portland Police Bureau officers were dispatched to the store in response to a complaint involving a firearm. On arrival, one of the officers asked defendant if he possessed a gun. Defendant responded that he was carrying a pistol in a holster behind him. The cover officer took a 9mm handgun from defendant without incident. A second gun, belonging to the owner of the store, was kept in a drawer near the cash register. The owner testified that his gun did not work. One of the officers then made sure defendant's handgun was safe and performed a function check on it. Defendant admitted that he did not have a license to carry a concealed handgun and expressed surprise when he was cited because he did not think a license was required to carry a concealed handgun on the job. The weapon was not test fired nor was it presented at trial.

Defendant was charged with unlawful possession of a firearm, ORS 166.250, menacing, ORS 163.190, and pointing a firearm at another, ORS 166.190. After the latter two charges were dismissed, the case was tried to the court. Defendant was convicted and sentenced to one year of bench probation for unlawful possession of a firearm under ORS 166.250(1)(a).¹

On appeal, defendant first argues that the trial court erred in concluding that there was sufficient evidence to find that the firearm was readily capable of use as a weapon, as defined in ORS 166.210(2). Our task, therefore, is to determine whether the evidence, viewed in the light most favorable to the state, is sufficient for a rational trier of fact to find, beyond a reasonable doubt, that the firearm was readily capable of use as a weapon. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994).

Defendant argues that the state failed to prove that the handgun seized in this case was readily capable of use as a weapon because the state did not test fire the weapon, did not define "function check," or indicate whether the handgun passed or failed that test. The state is not required to test fire a handgun to prove that it is readily capable of use as a weapon. State v. Wise, 150 Or.App. 449, 452, 946 P.2d 363 (1997) (testimony regarding firearms' serviceability for hunting was sufficient to deny defendant's motion for acquittal); State v. Turechek, 74 Or.App. 228, 233, 702 P.2d 1131 (1985) (evidence that a gun cycles and all the parts necessary to fire it are in working order is enough to establish that a gun is readily capable of use as a weapon).

It is true that the state did not explain what a function check is or what that test revealed. However, in determining whether evidence is sufficient, we consider all of the undisputed facts and all reasonable inferences. State v. Woodson, 315 Or. 314, 320, 845 P.2d 203 (1993). Here, defendant was cited for unlawful possession of a firearm after the function check was performed. He knew that the gun provided by owner did not work and was surprised to learn that a license is needed to carry a concealed handgun at work. Finally, the circumstances of defendant's employment and the manner in which he carried the gun are consistent with an intent to protect himself and owner's property. These facts, taken together, permit a trier of fact to find beyond a reasonable doubt that the officer found the handgun in working condition. The trial court did not err in concluding that defendant's handgun was readily capable of use as a weapon. In his second assignment of error, defendant argues that the trial court misconstrued the "place of business" exception to the unlawful possession of a firearm in ORS 166.250(2)(b).² The trial court determined that, in order to invoke the "place of business" exception, a person must show ownership or some indicia of ownership in the business, and, because defendant is merely an employee, the exception does not apply to him. Defendant argues that "place of business" provides no statutory basis for distinguishing between owners and employees. Defendant further argues that construing the exception so narrowly violates his right to bear arms under Article I, section 27, of the Oregon Constitution, and, by implication, the Second Amendment to the United States Constitution. Finally, defendant asserts that requiring a person to show ownership or indicia of ownership in the business violates the privileges and immunities clause of Article I, section 20, of the Oregon Constitution.

We begin with defendant's statutory argument, to which the state's response is two-fold. First, the state argues that ORS 166.250(2)(b) is not an exception to the prohibition against carrying a concealed firearm without a license. Second, the state argues that, even if the statute does allow some unlicensed persons to carry concealed firearms in their place of business, defendant is not a member of the excepted class. In either event, the state asserts that the trial court correctly construed the phrase "place of business" as connoting ownership and therefore properly ruled that defendant, as a nonowner employee, was not cited in his "place of business" as that phrase is used in ORS 166.250(2)(b).

ORS 166.250(2)(b) was enacted in 1925.³ Or Laws 1925, ch 260, § 5. Somewhat surprisingly, it has never been construed by an Oregon appellate court. To do so, we first examine the text in context because that is "the best evidence of the legislature's intent." PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993). Our role is "simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted." ORS 174.010. The words of a statute are given their plain, natural and ordinary meaning. PGE, 317 at 611, 859 P.2d 1143. If the legislature's intent is not clearly expressed in the text and context of the statute, then we may also consider its legislative history. Id. Finally, if the statute's meaning remains unclear, then we may invoke pertinent maxims of construction. Id. at 612, 859 P.2d 1143.

Defendant's appeal, and the state's response concerning the scope and effect of ORS 166.250(2)(b), require us to analyze the statute at two levels. First, we must determine whether ORS 166.250(2)(b) provides an exception to the unlawful possession of firearms. If we determine that the statute provides an exception, we must then determine whether that exception applies to defendant. We begin with the language of ORS 166.250(1), which makes the possession of firearms unlawful in certain circumstances. One of those circumstances is "[carrying] a firearm concealed upon the person" without a license as provided in ORS 166.291 and ORS 166.292.⁴

In order for ORS 166.250(2)(b) to be an exception to the conduct proscribed by ORS 166.250(1)(a), it must in some manner allow persons to carry a firearm concealed on their persons without a license. We note that the statute does not expressly negate the prohibition against carrying firearms concealed upon the person without a license. Accordingly, support for defendant's position, if it is to be found, must derive from language negating any prohibition against "owning, possessing or keeping" a handgun at one's place of residence or place of business. In an effort to discern the plain, natural, and ordinary meaning of those terms we turn to the dictionary. To "own" is "to have or hold as property or appurtenance: have a rightful title to, whether legal or natural." Webster's Third New Int'l Dictionary, 1612 (unabridgeded 1993). To "possess" is "to take into one's possession: seize or gain control of: to make one's own." Id. at 1770. And finally, to "keep" is to "cause to remain in a given place, situation, or condition: maintain unchanged: hold or preserve in a particular state." Id. at 1235.

The state argues that "owning, possessing or keeping" a handgun are different from carrying one concealed and that reading ORS 166.250(2)(b) as an exception to ORS 166.250(1)(a) violates ORS 174.010 by inserting the words "carry concealed." The state's argument fails because each of the defined terms can be read consistently with carrying a concealed firearm. The term "possess," in particular, is inclusive because the act of carrying a concealed handgun is an entirely contained subset of possession. Stated another way, one who carries a concealed handgun always "possesses" the handgun. Accordingly, as relevant here, we hold that ORS 166.250(2)(b) provides an exception to the statutory prohibition in ORS 166.250(1)(a) against carrying a concealed firearm for persons who do so in their place of business.⁵

Having determined that ORS 166.250(2)(b) provides a limited exception to the concealment prohibition in subsection (1)(a) of the statute, we turn to the state's alternative argument that the statute does not apply to defendant. The parties agree that the question presented is whether defendant...