State v. Mullin

339 Or. App. 784

• Court: Court of Appeals of Oregon
• Decided: April 16, 2025
• Docket: A174750
• Status: Unpublished

Opinion

784 April 16, 2025 No. 346

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, Plaintiff-Respondent, v. JOHN HATCHMAN MULLIN IV, Defendant-Appellant. Lane County Circuit Court 20CR36687; A174750

On remand from the Oregon Supreme Court, State v. John Hatchman Mullin IV, 372 Or 809, 558 P3d 829 (2024). Charles D. Carlson, Judge. Submitted on remand December 5, 2024. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anna Belais, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Colm Moore, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and Hellman, Judge. HELLMAN, J. Affirmed. Nonprecedential Memo Op: 339 Or App 784 (2025) 785

HELLMAN, J. This criminal case is on remand from the Supreme Court for reconsideration of our decision in State v. Mullin, 327 Or App 319 (2023) (nonprecedential memorandum opin- ion) (Mullin I), in light of State v. Eggers, 372 Or 789, 558 P3d 830 (2024). Defendant was convicted of menacing constituting domestic violence, ORS 163.190, and harassment constitut- ing domestic violence, ORS 166.065. Mullin I, 327 Or App at 320. The trial court “imposed a probation condition prohib- iting [defendant] from possessing firearms or ammunition under ORS 166.255 and ORS 166.250.” Id. After accepting the state’s concession that menacing, ORS 163.190, is not a “qualifying misdemeanor” as defined by ORS 166.255(3)(e), we concluded that harassment, ORS 166.065, is not a “qual- ifying misdemeanor” under ORS 166.255 and remanded “for entry of judgment omitting provision prohibiting defendant from possessing firearms or ammunition pursuant to ORS 166.255 and ORS 166.250[.]” Id. at 320-21. We otherwise affirmed. Id. at 321. The Supreme Court affirmed our decision with respect to defendant’s conviction under ORS 163.190 and remanded with respect to ORS 166.065. State v. Mullin, 372 Or 809, 811, 811 n 1, 558 P3d 829 (2024) (Mullin II). As a consequence, on remand, we address only defendant’s second assignment of error, which challenges the probation condition based on his conviction for harassment consti- tuting domestic violence, ORS 166.065.1 Under Eggers, we affirm. We otherwise adhere to our previous disposition. “We review sentencing decisions for legal error.” State v. Tison, 292 Or App 369, 372, 424 P3d 823, rev den, 363 Or 744 (2018). As noted above, defendant was convicted under ORS 166.065. He stipulated to the following facts: “[D]efendant on or about June 25, 2020, in Lane County, Oregon did unlawfully and intentionally harass and annoy 1 Under ORS 166.065(1)(a)(A), “[a] person commits the crime of harassment if the person intentionally * * * [h]arasses or annoys another person by * * * [s]ubjecting such other person to offensive physical contact.” 786 State v. Mullin

[the victim] by subjecting [the victim] to offensive physical contact * * * [and] that constituted domestic violence.” At sentencing, the court informed defendant that “pursuant to ORS 166.255, as a result of this conviction, you no longer are allowed to knowingly possess firearms or ammunition.” The trial court then entered a judgment of conviction sen- tencing defendant to probation for the harassment convic- tion and “prohibited [defendant] from possessing firearms or ammunition pursuant to ORS 166.255 and 166.250.” In our original opinion, we concluded that the trial court erred in imposing the probation condition because “harassment, ORS 166.065, is not a ‘qualifying misde- meanor’ under ORS 166.255.” Mullin I, 327 Or App at 320. On review, the Supreme Court determined that defendant’s petition “present[ed] the same issue that [it] resolved * * * in State v. Eggers, 372 Or 789, 558 P3d 830 (2024),” and “affirmed in part,” “vacated in part,” and remanded. Mullin II, 372 Or at 811. We conclude that the trial court did not err. In Eggers, the Supreme Court explained: “ORS 166.255 provides, in part, that ‘it is unlawful for a person to knowingly possess a firearm or ammunition if * * * [t]he person has been convicted of a qualifying mis- demeanor and, at the time of the offense, the person was * * * [a] family or household member of the victim of the offense.’ For purposes of that prohibition, a ‘qualifying mis- demeanor’ is one that ‘has, as an element of the offense, the use or attempted use of physical force.’ ORS 166.255(3)(e).” 372 Or at 791. After considering the text, context, and legis- lative history of ORS 166.255, the Supreme Court concluded that “the term ‘physical force’ in ORS 166.255(3)(e) covers offensive physical contact. Thus, harassment as defined by ORS 166.065(1)(a)(A) is a qualifying misdemeanor for pur- poses of ORS 166.255.” Id. at 808. Here, defendant stipulated that he “did unlawfully and intentionally harass and annoy [the victim] by subjecting [the victim] to offensive physical contact” and the trial court found defendant guilty of harassment constituting domes- tic violence, ORS 166.065. As a consequence, the trial court Nonprecedential Memo Op: 339 Or App 784 (2025) 787

did not err when it prohibited defendant “from possessing firearms or ammunition” under ORS 166.255 because of his harassment conviction. See State v. Lane, 336 Or App 634, 636, 561 P3d 1164 (2024) (“[I]n [the] defendant’s judgment of conviction, the trial court imposed the firearm prohibition for both menacing and harassment. Under Eggers, 372 Or at 791 * * * it was not an error to do so for harassment.”). Affirmed.