Argued and submitted on December 28, 2012.
Umatilla County Circuit Court CF080262 Garry L. Reynolds, Judge.
Marc D. Brown, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jeremy C. Rice, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
SCHUMAN, P. J.
Defendant appeals his convictions for unlawful obliteration of the identification number on a firearm, ORS 166.450, and unlawful possession of a firearm, ORS 166.250. The firearm that precipitated these convictions was discovered when police searched defendant's vehicle after stopping him for speeding and for failing to display a front license plate. On appeal, defendant asserts two assignments of error. First, he asserts that the trial court erroneously denied his motion to suppress the evidence obtained from the search of his vehicle. Specifically, he argues that the evidence against him was found after a traffic stop was unlawfully extended without reasonable suspicion. Second, defendant argues that the trial court erroneously denied his motion for a judgment of acquittal on the obliteration charge. According to defendant, his conviction for intentionally obliterating a firearm's identification number was based upon the court's application of an unlawful evidentiary presumption. For the reasons that follow, we conclude that, although the court did not correctly apply the obliteration statute, it properly denied defendant's motion for a judgment of acquittal; however, we also conclude that it erred in denying his motion to suppress. We therefore reverse and remand.
We start by reviewing the denial of defendant's motion for a judgment of acquittal, because an outright reversal on that issue would entitle defendant to greater relief on the obliteration conviction. In reviewing the denial of a motion for a judgment of acquittal, we state the evidence in the light most favorable to the state. State v. Hall, 327 Or 568, 570, 966 P.2d 208 (1998); State v. Turley, 202 Or.App. 40, 48, 120 P.3d 1229 (2005).
On a February afternoon in 2008, Patrol Sergeant Turner of the Oregon State Police was stationed in his cruiser west of Pendleton monitoring traffic traveling eastbound on I-84. Turner saw defendant's van and noted that it was speeding and missing a front license plate. After stopping defendant for those traffic violations, Turner became suspicious that defendant might have narcotics in his vehicle. Turner radioed for help from an officer with a drug detecting dog, which, upon arrival indicated narcotics were present in the van. The officers then searched the vehicle. They did not find any narcotics, but Turner, leaning into the van, noticed the butt of a pistol sticking out of the top of a bag behind the driver's seat, within reach of the driver. In addition to the pistol, the officers discovered two loaded magazines for the pistol and an unloaded magazine belonging to a different firearm. The serial number on the pistol was scratched off so that it was unreadable. The scratches were consistent with the intentional obliteration of the identification number.
When asked about the gun, defendant first told Turner that he had found it on the side of the road. Upon further questioning, however, defendant changed his story and told Turner that he had purchased the gun for protection. Based on this evidence, defendant was charged with theft of the firearm, ORS 164.015, intentionally obliterating the identification number on a firearm for an unlawful purpose, ORS 166.450, and unlawful possession of a firearm, ORS 166.250. The theft charge was later dismissed on a motion from the state. Defendant waived his right to a jury and was convicted at a trial before the court on the remaining counts.
ORS 166.450 provides:
"Any person who intentionally alters, removes or obliterates the identification number of any firearm for an unlawful purpose, shall be punished upon conviction by imprisonment in the custody of the Department of Corrections for not more than five years. Possession of any such firearm is presumptive evidence that the possessor has altered, removed or obliterated the identification number."
The dispute over the motion for a judgment of acquittal revolves around the second sentence. At trial, the state argued that the sentence creates a presumption that relieves the state of the burden of proving the first two elements. In other words, the state's interpretation of the statute was that the trier of fact may presume that "the person in possession of a firearm with an obliterated identification number[ ] intentionally did [the obliterating]." Defendant agrees that the plain language of ORS 166.450 creates a presumption. According to defendant, however, a presumption that operates as the state describes is contrary to both constitutional due process protections and our statutory rules of evidence. The trial court accepted the state's argument and rejected defendant's.
On appeal, defendant cites State v. Rainey, 298 Or 459, 693 P.2d 635 (1985), OEC 309, and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), for the proposition that the state may not use a statutory presumption to evade the requirement that it prove each element of a crime beyond a reasonable doubt. In Rainey, the Supreme Court explained:
"When, on a motion for judgment of acquittal, an inferred fact is used to establish an element of the offense or negate a defense, the jury may be left free to infer that fact only when two requirements are satisfied: (1) sufficient evidence has been offered of the existence of the fact(s) giving rise to the inference to allow a rational factfinder to find the underlying fact(s) beyond a reasonable doubt; and (2) a rational factfinder could find that the inferred fact follows more likely than not from the fact(s) giving rise to the inference. When, however, the inferred fact is the sole basis for finding the existence of an element of the crime, a third restraint comes into play. In order to meet the requirement of proof of each element of the crime beyond a reasonable doubt, the jury must be convinced that the inferred fact follows beyond a reasonable doubt from the underlying fact(s)."
298 Or at 466. The court noted that that restraint on the use of presumptions was "incorporated" in OEC 309, which provides:
"(1) The judge is not authorized to direct the jury to find a presumed fact against the accused.
"(2) When the presumed fact establishes guilt or is an element of the offense or negates a defense, the judge may submit the question of guilt or the existence of the presumed fact to the jury only if:
"(a) A reasonable juror on the evidence as a whole could find that the facts giving rise to the presumed fact have been established ...