State v. Pothast

Opinion

468 August 26, 2026 No. 802

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, Plaintiff-Respondent,

v.

MAX MITCHELL POTHAST,

Defendant-Appellant.

Lincoln County Circuit Court 23CR56454; A185625

Amanda R. Benjamin, Judge. Submitted April 8, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant.

Dan Rayfield, Attorney General, Paul L. Smith, Interim Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, Joyce, Judge, and Hellman, Judge.

HELLMAN, J. Affirmed.

Cite as 352 Or App 468 (2026) 469 470 State v. Pothast

HELLMAN, J. Defendant pleaded guilty to unlawful use of mace (Count 1) and resisting arrest (Count 3). On Count 3, the trial court ordered forfeiture of a firearm that defendant possessed on his person during the charged conduct. Defendant challenges that order on appeal, arguing that the trial court erred because (1) it improperly relied on defendant’s conduct underlying the unlawful use of mace offense, which occurred during a separate encounter than the resisting arrest conduct ; and (2) defendant’s possession of the firearm did not meet the statutory requirements for forfeiture under ORS 166.279(2). We conclude that the trial court based its ruling on the fact that defendant possessed the firearm during the resisting arrest incident, not the mace incident; and that, under its plain text, ORS 166.279(2) required forfeiture because defendant’s firearm was “available for use to facilitate the offense.” Accordingly, we affirm.

The relevant facts are undisputed. Defendant and his landlord were in a protracted dispute, and the landlord called police to defendant’s residence after defendant erected a barrier on the landlord’s property. During that encounter with police, defendant sprayed bear spray at an officer and ran back into his house. Later that day, when an officer tried to arrest defendant, they “end[ed] up on the ground” and defendant “physically resisted by trying to pull his arms away from the officer towards himself.” While defendant was “being taken down,” he conveyed that he had a firearm “to make sure that there is no risk, no concern, that there is going to be a safety threat.” Additional officers arrived and were able to take defendant into custody. Officers searched defendant and located a firearm in defendant’s waistband.

Defendant pleaded guilty to one count of unlawful use of mace and one count of resisting arrest. On the resisting arrest charge, the state asked that defendant’s firearm be forfeited pursuant to ORS 166.279(2), arguing that “based on the facts of this case, the fact that he not only possessed the firearm, but was involved in pretty tumultuous behavior with law enforcement,” forfeiture was authorized under the statute. See ORS 166.279(2) (requiring forfeiture “at the time of sentencing for any criminal offense in which a firearm or

Cite as 352 Or App 468 (2026) 471

other deadly weapon was possessed, used or available for use to facilitate the offense”). Defendant argued that forfeiture was not appropriate because his firearm “was not part of the crime, it was a circumstance that existed at the same time as an event occurred” and “it was in no way related to the offense.” Defendant noted that he “was actively trying to convey to make sure that [the firearm] was not involved in the circumstances” and argued that “statutorily there is [not] a basis for forfeiture.”

The trial court ordered forfeiture, finding that:

“Given that [the firearm] was [in defendant’s] possession at the time this occurred, that is concerning to the Court, given * * * what occurred during the situation where the defendant sprayed the officer’s car and then the officer directly, and had a firearm on him at the time that these actions were taken, I do find that it’s appropriate to have that firearm forfeited.”

After ordering forfeiture, the trial court asked defendant if he had any questions, and he responded, “No, I don’t. And the only time the firearm was on me was when I left my house [after the mace incident]. Beforehand my firearm was not on me at all. I just want to make that clear.” The trial court did not reconsider or change its forfeiture order.

Defendant challenges the forfeiture order on appeal, making two arguments. First, defendant argues that the trial court “improperly relied on defendant’s conduct” underlying the unlawful use of mace offense in finding that forfeiture was appropriate. Second, defendant renews his argument that ORS 166.279(2) did not authorize forfeiture in these circumstances.

Beginning with defendant’s first argument, he contends that the trial court’s statement that “[g]iven what occurred during the situation where the defendant sprayed the officer’s car and then the officer directly, and had a firearm on him at the time that these actions were taken,” indicates that the trial court believed that defendant possessed the firearm at the time he sprayed the mace. Thus, in defendant ’s view, the trial court improperly based its forfeiture 472 State v. Pothast

ruling on the mistaken belief that defendant possessed the firearm during the separate unlawful use of mace incident.

We disagree with defendant’s reading of the record.

The only evidence presented to the trial court regarding the firearm was that defendant possessed it at the time he resisted arrest. Indeed, the state based its forfeiture request solely on the resisting arrest charge. Thus, when read in context, the trial court’s statements regarding the mace incident were not the basis for the trial court’s forfeiture ruling . Instead, those statements were the trial court’s recognition that defendant had previously been aggressive towards officers. As such, they provided context as to why the court was so concerned that defendant was armed at the time of his arrest. Moreover, the trial court adhered to its forfeiture ruling after defendant reiterated that he did not have the firearm during the mace incident. In sum, when read in context, the phrase “these actions” in the trial court’s statement that defendant “had a firearm on him at the time these actions were taken” refers to the actions defendant took in resisting arrest. As a result, the trial court did not base its forfeiture ruling on an incorrect assessment of the facts, and we reject defendant’s first argument.

Turning to defendant’s second argument, in his view, forfeiture is required under ORS 166.279(2) only when a firearm is possessed “for the purpose of facilitating” the crime. Defendant contends, in other words, that forfeiture is required only when the firearm “play[s] a role in the commission of the crime,” and thus forfeiture was improper here because “the fact that the [firearm] was in defendant’s possession when the police arrested him played no role in his act of resisting that arrest.”

Defendant’s argument that the trial court erred in applying the statute presents a question of statutory construction, which we review for legal error. State ex rel Rosenblum v. Living Essentials, LLC, 371 Or 23, 33, 529 P3d 939 (2023). In interpreting a statute, our goal is to identify the legislature’s intent by examining the disputed provision ’s text and context, as well as any helpful legislative history. State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009).

Cite as 352 Or App 468 (2026) 473

We begin with the text of the statute, which is the “best evidence of the legislature’s intent.” State v. Edwards, 346 Or App 491, 495, 585 P3d 1123 (2026). Under ORS 166.279(2), “at the time of sentencing for any criminal offense in which a firearm or other deadly weapon was possessed , used or available for use to facilitate the offense, the court shall declare the weapon to be contraband and order that the weapon be forfeited.” Thus, forfeiture is required not only when a firearm is possessed or used to facilitate the offense, but also when it is “available for use” to facilitate the offense. And under the plain meaning of “available ,” a firearm is “available for use to facilitate the offense” if it is “obtainable” or “accessible.” Webster’s Third New Int’l Dictionary at 150 (unabridged ed 2002); State v. Eggers, 372 Or 789, 798, 558 P3d 830 (2024) (in the absence of a statutory definition, we assume that the legislature intended to give the term its “plain, natural, and ordinary meaning,” and “[w]e often turn to dictionaries as a starting point in our analysis” (internal quotation marks omitted)). Thus, defendant’s construction of the statute—that it applies only in circumstances where a firearm is possessed “for the purpose of facilitating” the crime or when the firearm “play[s] a role in the commission of the crime”—is inconsistent with the plain text of the statute.

Under the plain text of the statute, the trial court did not err in ordering forfeiture. Defendant’s firearm was in his waistband when the officer attempted to arrest him. Defendant “physically resisted by trying to pull his arms away from the officer towards himself.” Those facts demonstrate that the firearm was accessible to defendant while he resisted arrest. Under ORS 167.279(2), the firearm was thus “available for use to facilitate” his attempts to resist arrest.1 Affirmed.

1 Defendant points to evidence that he conveyed to the arresting officer that he had a firearm to avoid any safety concerns to support his argument that he did not possess the firearm in order to facilitate the crime of resisting arrest. However, as discussed above, the statute requires forfeiture not only when a firearm is possessed for the purpose of facilitating an offense or used to facilitate the offense but also when a firearm is available for use to facilitate the offense.