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State v. Clemente-Perez

Court of Appeals of Oregon

February 20, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
FERNANDO CLEMENTE-PEREZ, Defendant-Appellant

Argued and Submitted: February 21, 2013.

Washington County Circuit Court. D104733M. Rick Knapp, Judge. (Judgment entered January 10, 2011). Gayle Ann Nachtigal, Judge. (Judgment entered July 13, 2012).

Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Rebecca M. Johansen, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and Sercombe, Judge, and De Muniz, Senior Judge.

OPINION

Page 1083

[261 Or.App. 148] SERCOMBE, J.

Defendant appeals a judgment of conviction for unlawful possession of a firearm. ORS 166.250.[1] He assigns error to the trial court's denial of his motion for judgment of acquittal, arguing that there was insufficient evidence that he was within a vehicle when he possessed a firearm and, alternatively, that there was uncontroverted evidence that he was entitled to possess the firearm because it was in his place of residence. We affirm.

In reviewing a denial of a motion for judgment of acquittal, we state the facts in the light most favorable to the state and review those facts to determine whether a rational trier of fact could have found defendant guilty beyond a reasonable doubt. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).

Defendant retrieved a handgun from a truck that was parked on his property and used it to shoot his wife's cell phone. The truck was parked near defendant's house under a stand-alone awning structure. The awning was located a few feet from the garage, on the side of the driveway to the garage that was away from the house. After defendant shot his wife's cell phone, he wrapped the gun in a towel and put it into a storage compartment under the rear seat of the truck on the driver's side. Defendant's truck has a rear door on the driver's side. Although the storage compartment has a lock, defendant did not lock it when he returned the gun.

Defendant was charged with unlawful possession of a firearm. At the close of the state's case, defendant moved for a judgment of acquittal. The trial court denied the motion, and the jury returned a verdict of guilty.

ORS 166.250 provides, as pertinent:

" (1) Except as otherwise provided in this section * * *, a person commits the crime of unlawful possession of a firearm if the person knowingly:
" (a) Carries any firearm concealed upon the person;
[261 Or.App. 149] " (b) Possesses a handgun that is concealed and readily accessible to the person within any vehicle; * * *
" * * * *
" (2) This section does not ...

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