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State v. O'Dell

Court of Appeals of Oregon

July 16, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
RICHARD DUSTIN O'DELL, Defendant-Appellant

Argued and Submitted December 9, 2013.

Marion County Circuit Court 11C46931. Jamese Lou Rhoades, Judge.

Jason E. Thompson argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson, LLP.

Paul Smith, Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 1262

[264 Or.App. 305] EGAN, J.

After police discovered four firearms in a cabinet in the house where he was living, defendant was charged with four counts of being a felon in possession of a firearm, ORS 166.270. A witness had seen defendant handling two different firearms on two separate occasions. Later, while executing a search warrant at the residence, the police discovered two additional firearms in a cabinet alongside the two that defendant had been seen handling. A jury found defendant guilty on all four counts. He appeals the resulting judgment of conviction. We write to address only his challenges to (1) the trial court's denial of his motions for a judgment of acquittal (MJOAs) on the counts concerning the two firearms that he was not seen handling and (2) the denial of his motion to merge the four guilty verdicts into a single conviction.[1] We conclude that there was no error in the denial of defendant's MJOAs, but that the four verdicts should have merged into a single conviction.

" Our standard for reviewing the denial of the motion for judgment of acquittal is whether, viewing the evidence in the light most favorable to the state, any rational trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt." State v. Paragon, 195 Or.App. 265, 267, 97 P.3d 691 (2004). In accordance with that standard, the facts are as follows. Defendant, a convicted felon, was living at his father's home. On December 7, 2010, defendant's wife visited him there. Defendant disappeared from his wife's view and returned holding a handgun. He showed it to his wife, asked her to hold it, and inquired whether she thought it was the type of firearm she could handle. The handgun was a Star Eibar 9mm.

Defendant's wife testified that a similar event had occurred early in the summer of 2011, when she was again at the home of defendant and his father. That time, defendant left his wife's view and returned with a Bushmaster .223 rifle.

The police procured a warrant to search for firearms in the home. While executing that warrant in June 2011, [264 Or.App. 306] the police opened a cabinet in the bedroom of defendant's father. One of the officers testified that the cabinet was locked when they arrived, but that the key was in the lock. Defendant's sister testified that the key was " always" on top of the cabinet, and that her father rarely locked things. Defendant's wife testified that defendant had access to his father's bedroom. Inside the cabinet were four firearms that formed the bases for the charges at issue: a Bushmaster .223 (Count 1), a TEC 9 (Count 2), a Star Eibar 9mm (Count 3), and a Smith and Wesson .357 Airlite (Count 4). The state brought those charges by way of an information; each count was identically worded, except for the description of the firearm at issue. Count 1, for example, read, " The defendant, on or between December 1, 2010 to June 25, 2011,

Page 1263

in Marion County, Oregon, having previously been convicted [of a felony], did unlawfully and knowingly own and have in said defendant's possession, custody and control a firearm, to wit: a Bushmaster [.]223 rifle." [2]

Defendant moved for judgments of acquittal on Counts 2 and 4 at the close of the state's case. He did not dispute that there was sufficient evidence for purposes of an MJOA to find that he had possessed the Bushmaster .223 and the Star Eibar 9mm. Instead, he argued that there was insufficient evidence from which to conclude that he had, beyond a reasonable doubt, owned, ...


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