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Oregon v. Kelley

March 19, 1973

STATE OF OREGON, RESPONDENT,
v.
JEAN ELLEN KELLEY, APPELLANT



Appeal from Circuit Court, Lane County. Roland K. Rodman, Judge. No. 72 1977.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Thornton, Judge. Schwab, Chief Judge, and Foley, Judge.

Thornton

Defendant was convicted after a bench trial of being a felon in possession and control of a concealable firearm. ORS 166.270.*fn1 The court suspended the imposition of sentence and placed defendant on three years' probation.

Defendant's sole assignment is that the trial judge erred in overruling her motion for judgment of acquittal, in that the state allegedly failed to introduce sufficient evidence to enable the trier of fact to find beyond a reasonable doubt that defendant ever owned, possessed, controlled or had in her custody the subject weapon.

On May 3, 1972, at about 2 p.m., three police officers, Veteto, Foster and Mauch, went to the residence of defendant to serve a warrant of arrest upon her for illegal sale of dangerous drugs. When the first officer reached the front door, he knocked or rang the doorbell. Defendant answered and opened the door. After defendant stepped back the officer proceeded into the house and read the warrant to her. Defendant asked to go to the bedroom to put on some shoes. The officer consented, but followed her down the hallway. The defendant stepped inside the bedroom and called to her husband, telling him she was being arrested. Meanwhile the other officers positioned themselves in the living area. Defendant reentered the hall and was followed closely by Officer Veteto. Defendant's husband followed them into the living room.

State Police Officer Dodd who had been called to transport defendant to jail had meanwhile arrived. As Officer Veteto was advising defendant of her rights and about to inform Officer Dodd of the charge so that he could take defendant to jail, Officer Foster interrupted by saying something like, "Take a look at what I found" or, "Here is a gun." As he held up the pistol, which had been on top of a table in the living room, defendant spoke up, saying, "Oh, that's my gun." Overlapping her comment her husband said, "Oh, no. That's my gun. I bought it for her for protection."

Officer Veteto then advised defendant that he would hold the weapon and she would be charged with the weapon charge.

The weapon found was a loaded, .25 caliber automatic pistol. Testimony disclosed that defendant's husband did in fact purchase the gun in Junction City on September 1, 1970, and that it was registered in his name.

Defendant had previously been convicted in California in December 1966 of grand theft from the person, and was ...


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