Oregon Supreme Ct - Sept. 17, 2015

by: Abassos and Alarson • September 17, 2015 • no comments

Unlawful Possession of a Firearm

(1) The Element "Within Any Vehicle" Applies Both to the Accused and to the Firearm, Both of Whom Must Have Been Within the Vehicle

(2) A Person is Within a Vehicle if Any Portion of the Person’s Body Enters the Vehicle

The phrase "within any vehicle" in ORS 166.250(1), Unlawful Possession of a Firearm, applies both to the person and the gun. A person is "within any vehicle" for the purposes of Unlawful Possession of a Firearm if any portion of the person's body is in the interior of the vehicle at the time that the concealed, readily accessible handgun is also within the vehicle. Here, defendant stored a weapon in a storage compartment in the floor of his truck, and retrieved it to shoot his estranged wife’s phone. The evidence was sufficient to establish that some part of defendant's body was in the vehicle with the gun because in order to retrieve the gun he would have had to fold down the back seat, flip up the entire seat, open the lid of the compartment and reach into the storage compartment.

Furthermore pursuant to ORS 166.250(2)(b), the defense for residential possession, a person’s “place of residence” is the “house or other structure in which a person lives—that is, a person’s residential structure.” Because there was no evidence that defendant lived in his pickup truck or the area where the truck was parked, the defendant did not meet the “place of residence” exception.

Justice Walters dissents, arguing that ORS 166.250(1)(b) “applies to drivers and passengers who are located entirely inside a vehicle and not to those persons, like defendant, who reach into a vehicle to place a handgun in or remove a handgun from a concealed location.”

State v. Clemente-Perez 357 Or 745 (2015)