Criminal Law – Case Law Update – Unlawful Possession of a Firearm

free-vector-scales-of-justice_099380_Scales_of_justiceOn September 17, 2015, the Oregon Supreme Court issued an opinion about what constitutes the crime of unlawful possession of a firearm under ORS 166.250.  In State v. Clemente-Perez, 357 Or 745 (2015), Defendant’s son and estranged wife went to Defendant’s house to pick up his son’s backpack.  During the visit, Defendant heard his wife’s cell phone ring and saw that another man had called her.  Angered, Defendant retrieved a handgun from an unlocked storage compartment underneath the back seat of his pickup truck and shot his wife’s cell phone.  He then placed the gun back in storage compartment in his truck and drove away in a different truck.

Defendant was charged with and convicted of criminal mischief under ORS 164.354 and unlawful possession of a firearm under ORS 166.250(1)(b), which prohibits the possession of “a handgun that is concealed and readily accessible to the person within any vehicle.”

On appeal, Defendant made two arguments regarding his conviction for unlawful possession of a firearm:

1.  That he was not “within any vehicle” because he was not “occupying” the vehicle when he accessed the gun; and

2.  That the “place of residence” exception under ORS 166.250(2)(b) should have applied because the truck was parked within the property lines of his residential property.

The Oregon Court of Appeals affirmed the trial court rulings and Defendant appealed to the Oregon Supreme Court.

As to the first argument, that Defendant was not “within any vehicle” when he reached in to retrieve the gun, the Supreme Court disagreed.  The Court held that a person is within the vehicle for the purposes of this crime “if the person, or some portion of the person’s body, is in the interior part of a vehicle at the time that he or she possesses a concealed, readily accessible handgun.”

The Supreme Court also disagreed with Defendant’s second argument regarding the “place of residence” exception.  Under this exception, a non-felon adult citizen of the United States may not be charged with unlawful possession of a handgun if the handgun is “within the persons place of residence or place of business.”  ORS 166.250(2)(b).  The Supreme Court held that a person’s “place of residence” is “the house or other structure in which a person lives – that is, a person’s residential structure.”  Since Defendant did not live in his truck, the exception did not apply.

The rulings of the trial court and Oregon Court of Appeals were affirmed.