Oregon Appellate Ct - February 3, 2016

by: Aalvarez • February 11, 2016 • no comments

UUW-Possession with Intent to Use—Holding a Gun Coupled With Angry Statements is Sufficient to Prove Intent to Fire the Gun

The state is not required to prove that the defendant used a weapon in a prosecution for UUW. Rather, all the state is required to prove is that the defendant carried or possessed the weapon with the intent to use it against another. Here, the defendant was arrested after he called 911 to complain about a low flying plane that had been repeatedly flying over his property. During the call, he told police that he was sitting on the porch with his gun and that if no one was going to do anything about the low flying plane, “I’ll do it myself.” When police arrived at his home, they found him on the porch with a gun, where he admitted to having serious thoughts about shooting the plane and admitted to holding up a shot gun shell to the plane “to send the pilot a message.”

Although a rational trier of fact “certainly….could make a different finding,” the court held that the defendant’s statements, coupled with his possession of the gun, were sufficient evidence viewed in the light most favorable to the state to support a finding that the defendant possessed the gun with the intent to use it against the plane. Affirmed State v. McAuliffe, 276 Or. App. 259 (2016)

Merger-Plain Error-Unlawful Possession of Multiple Guns in One House Merge into One Conviction

If a defendant is found guilty of multiple counts of Felon in Possession of a Firearm based on the same conduct and the conduct violates “only one statutory provision,” then the guilty counts merge unless the violations are separated by a sufficient pause, because the victim of Felon in Possession of a Firearm is the public.

Here, the defendant was found guilty of two counts of Felon in Possession of a Firearm. Both counts were based on ORS 166.270(1), there was only one victim, (the public) and his possession was a continuing crime because the record showed that he came into possession of the firearms at the same time. Thus, the trial court erred by failing to merge the guilty verdicts on both counts and the Court of Appeals exercises its discretion to correct the unpreserved error. State v. Ferguson 276 Or. App. 267 (2016)

Knowingly Allowing an Acquaintance to Store Guns in Your Home is Sufficient Evidence of Constructive Possession

The court did not err in denying the defendant’s MJOA in a Felon in Possession of a Firearm case where the defendant knowingly allowed an acquaintance to store firearms in his home for a week while the acquaintance was out of town. Here, the defendant, a convicted felon, allowed an acquaintance to store two guns at his home in areas that were readily accessible to the defendant. Because the acquaintance entrusted the guns to the defendant and left them in his custody, the state presented sufficient evidence for a rational fact finder to infer that the defendant had the ability to exercise control or dominion over the firearms. Affirmed. State v. Ferguson 276 Or. App. 267 (2016)

Dependency - Failure to Present Sufficient Evidence to Justify Jurisdiction - No Evidence of Harm to Child

DHS conceded and the Court of Appeals agreed that the following facts did not support jurisdiction in a juvenile dependency case:

• Evidence that Mother had used occasionally marijuana and methamphetamine in the months leading up to the hearing where there was no showing that her drug use impaired her ability to raise her child.
• Evidence that the child’s Father was verbally abusive to Mother and Child’s grandfather where there was no evidence that the child had been subjected to verbal abuse, to physical abuse or psychological damage as a result of the father’s actions.

DHS v. A.W. 276 Or. App. 276 (2016)

Former Speedy Trial Statute—19 Month Delay in a DUII Case is Unreasonable

Under former ORS 135.747, a 19 month delay between the charging date and the defendant’s eventual trial for DUII was unreasonable because: *Only 34 of the 586 days of delay were consented to by the defendant; *30 days of delay were caused by the state’s failure to provide discovery;

• 96 days of delay were caused by the prosecutor’s choice to take a non-refundable vacation after the case had already been delayed by 16 months and fail to provide a replacement who could be ready for trial on the scheduled trial day; and
• The remaining 426 days of delay were caused by lack of judicial resources and an overcrowded docket.

The trial courts denial of the defendant’s motion to dismiss for lack of speedy trial is reversed. State v. Barnes, 276 Or. App. 296 (2016)