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Where the COA Went Wrong In Its Failure to Merge 3 Firearms

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by: Ryan • October 5, 2011 • no comments

In State v. Bell, which came out yesterday, the COA addressed the issue whether three counts of Felon in Possession of a Firearm for three guns found in the defendant's possession should merge into a single conviction. The Bell Court looked weighed factors other than just the simultaneous possession of those guns to conclude that they did not.

Here, similarly, the record establishes that defendant's acts of possession of the firearms were separate acts. He obtained each firearm from a different person at a different time and then stored each firearm in a different location within his residence. These facts demonstrate, as the trial court ruled, that defendant had the opportunity to renounce his criminal intent at each juncture. Consequently, ORS 161.067(3) authorized separate convictions for the possession of each firearm.

In relying on such facts as when the defendant took possession of the guns and where he stored them, the Court was relying on State v. Collins, which has never been explicitly overruled. And there was nothing wrong with how it applied Collins. The only problem is that Collins is an anachronism, completely at odds with current merger analysis.

In Bell, the guns were found during a single search of the defendant's residence, in three different locations therein. We know from State v. Boyd that the possession of those guns all arise out of a single criminal episode.

If a defendant is charged with the possession of drugs, some of which had been acquired at one time and the rest at another time, it would seem clear that he would be entitled to object to multiple prosecutions. There would be no reason other than harassment of the defendant for the state to divide the condition of possession into parts and prosecute separately on each. The case should not be treated any differently simply because the items of contraband happen to be of different types. We hold, therefore, that the Court of Appeals properly treated this as a single episode.

State v. Boyd, 271 Or 558, 571 (1975)

We also know that, when possessing contraband, the question is whether or not the defendant was guilty at the time he was found in possession. As noted in State v. Martin,

Generally, proof of a defendant's mental state focuses on inferences drawn from evidence concerning the acts of the defendant as they relate to the "action" element of the offense. State v. Beason, 170 Or App 414, 425-26, 12 P3d 560 (2000), rev den, 331 Or 692 (2001). Here, the "action" element of the offense with which defendant is charged is his possession of the card at the time of his arrest. [Emphasis added.]

It's this principle - that you look at the mental state at the time of the arrest or seizure, that makes it possible to be acquitted for drug possession for drugs you forgot you possessed. The prosecutor can't say, "well, you knew you had the drugs when you got them."

And if you are looking at the moment the guns were found, they were possessed simultaneously, and there is no "sufficient pause" - necessary to prohibit merger - when possession is simultaneous. State v. Merrick, 224 Or App 471, 472-73, 197 P3d 624 (2008). See also State v. Salvador, 237 Or App 424 (Sept 29, 2010). It's true that those cases didn't involve proof that the items were possessed on different days, but I submit that accounting for those facts is simply incompatible with the concept of simultaneous possession. Either you possess stuff simultaneously or you don't, especially if the court is supposed to be looking only at the moment of seizure.

Recently, I watched an oral argument in which Justice Gillette, serving on the Court of Appeals, asked one of the attorneys to look at the big picture: does it really make sense that someone with 20 guns should only have 1 conviction, following merger? My answer is unequivocally yes. Just the same way that 20 rocks of cocaine should equal one conviction, even if one is found in the guest bathroom, one in the master bath, one in the bedroom, and one in the dining room. The state can enhance the penalty for the greater quantity of drugs, and they do. The legislature could easily do the same with firearms. And frankly, a felon with one firearm is not really anymore dangerous than a man with 20, except in the movies.