State v. Ferguson

367 P.3d 551, 276 Or. App. 267, 2016 Ore. App. LEXIS 117
CourtCourt of Appeals of Oregon
DecidedFebruary 3, 2016
Docket1200493CR; A156696
StatusPublished
Cited by6 cases

This text of 367 P.3d 551 (State v. Ferguson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ferguson, 367 P.3d 551, 276 Or. App. 267, 2016 Ore. App. LEXIS 117 (Or. Ct. App. 2016).

Opinion

DUNCAN, P. J.

In this criminal case, defendant was charged by indictment with one count of unlawful possession of methamphetamine (Count 1), ORS 475.894, and two counts of felon in possession of a firearm (Counts 2 and 3), ORS 166.270(1). A jury found defendant guilty of those charges, and the trial court entered a judgment convicting defendant of all three counts. Defendant appeals that judgment raising two assignments of error.

In his first assignment of error, defendant asserts that the trial court erred by denying his motion for judgment of acquittal (MJOA) on the two felon-in-possession counts. In his second assignment of error, defendant asserts that, even if the trial court did not err by denying his MJOA on the two felon-in-possession counts, it erred by failing to merge the guilty verdicts on those counts into a single conviction; defendant acknowledges that his second assignment of error is unpreserved, but he asks us to exercise our discretion to correct the assigned error as an error apparent on the record, also known as a “plain error.” ORAP 5.45(1) (authorizing appellate courts to review errors apparent on the record). In response, the state asserts that the trial court did not err by denying defendant’s MJOA on the felon-in-possession counts, but the state concedes that the trial court did err by failing to merge the guilty verdicts on those counts, and the state further concedes that the error is apparent on the record and that we have exercised our discretion to correct such errors in similar cases. For the reasons explained below, we conclude that the trial court did not err by denying defendant’s MJOA on the felon-in-possession counts but did err in failing to merge the guilty verdicts on those counts, and we further conclude that the merger error is apparent on the record and that it is appropriate for us to exercise our discretion to review it. Accordingly, we reverse and remand with instructions to merge the guilty verdicts on the felon-in-possession counts into a single conviction, and we otherwise affirm.

We begin with defendant’s first assignment of error, in which he argues that the trial court erred by denying his MJOA on the felon-in-possession counts. We review the [270]*270denial of an MJOA to determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. King, 307 Or 332, 339, 768 P2d 391 (1989). Stated in accordance with that standard, the relevant facts are as follows.

Defendant is a convicted felon. Police discovered two rifles in an unlocked spare bedroom in defendant’s house, one in an unlocked case on a bed and the other uncased in an unlocked closet. A woman who lived at the house with defendant informed police officers that the rifles had been at the house for one week. Defendant told the officers that the rifles belonged to an acquaintance, Berlt. Defendant also told the officers that he had allowed Berlt to store the rifles at the house and that he had been present the night before when Berlt had shown the rifles to a potential buyer at the house. Berlt was not staying at the house; he was only storing property there.

At defendant’s trial, after the state’s case-in-chief, defendant moved for a judgment of acquittal on the two felon-in-possession counts, arguing that the state had failed to prove that defendant had “possessed” the firearms. See ORS 166.270(1) (offense of felon in possession of a firearm requires that a defendant have possession, custody, or control of a firearm). Relying on State v. Casey, 346 Or 54, 61, 203 P3d 202 (2009), in which the Supreme Court noted that, “[a]s a general matter, guests retain dominion and control over their own property when they visit another person’s hornet,]” defendant argued that the evidence was insufficient to support an inference that Berlt had ceded control of the rifles to defendant. Defendant contended that the state’s evidence established only that he had been near the rifles and that “mere proximity is not enough” to establish possession. The trial court denied defendant’s motion. The jury found defendant guilty of all of the charged counts. This appeal followed.

We begin with the relevant law. ORS 166.270(1) defines the crime of felon in possession of a firearm; it provides, in part:

[?]*?“Any person who has been convicted of a felony under the law of this state * * * 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.”

(Emphasis added.) For the purposes of ORS 166.270(1), “‘[p]ossess5 means to have physical possession or otherwise exercise dominion or control over property.” ORS 161.015(9); Casey, 346 Or at 59. Possession includes “actual” and “constructive” possession. Id. Actual possession means physical possession, that is, “bodily or physical control” of property. State v. Fries, 344 Or 541, 546, 185 P3d 453 (2008). Constructive possession means exercising control over property or having the right to do so. State v. Nunes, 268 Or App 299, 306, 341 P3d 224 (2014).

Two cases illustrate what does and does not constitute constructive possession: State v. O’Dell, 264 Or App 303, 330 P3d 1261 (2014), and Casey, 346 Or 54. In O’Dell, police officers found four firearms in the defendant’s home. All four firearms were located in a locked cabinet in the defendant’s father’s room. A witness had seen the defendant handling two of the firearms, but, at the defendant’s trial, the state presented no evidence that the defendant had handled the other two firearms. 264 Or App at 305-06. On appeal, we concluded that a rational trier of fact could infer that the defendant had constructive possession of the two firearms that he had not handled, because there was evidence that all of the firearms were kept together in the same cabinet, that the defendant had access to the cabinet, and that the defendant had opened the cabinet in the past in order to handle the other two firearms. Id. at 308.

In Casey, a guest brought a gun into the defendant’s trailer. The gun was concealed under the guest’s shirt and the defendant was unaware of it. After the guest had been at the trailer approximately 15 minutes, police arrived. The defendant stepped out of the trailer, followed by the guest, who left the gun on a counter by the front door of the trailer and told the officers that he had done so. The officers questioned the defendant outside the trailer and, in response to their questions and with their consent, he reentered the trailer twice to retrieve items. 346 Or at 56-57. On review, [272]*272the Supreme Court held that the evidence was insufficient to establish that the defendant constructively possessed the guest’s gun. Id. at 60-64.

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Cite This Page — Counsel Stack

Bluebook (online)
367 P.3d 551, 276 Or. App. 267, 2016 Ore. App. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ferguson-orctapp-2016.