Argued and Submitted September 23, 2014.
CR1200998. Clackamas County Circuit Court. Kathie F. Steele, Judge.
Erik M. Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Matthew J. Lysne, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[268 Or.App. 301] HADLOCK, J.
In this criminal case, defendant appeals from a judgment convicting him of five crimes, including two counts of felon in possession of a firearm (FIP), ORS 166.270(1), arguing that the trial court erred in holding that the " anti-merger statute," ORS 161.067, prevented the two FIP counts from merging. As explained below, we conclude that defendant could properly be convicted of only one count of FIP and, accordingly, reverse the two FIP convictions and remand for entry of a single FIP conviction and for resentencing.  We otherwise affirm.
The relevant facts, which are essentially undisputed for purposes of this appeal, are as follows. Defendant, a convicted felon, and L. Nunes, who retired from a career as a police officer in early 2012, were married for 18 years. Both parties described their marriage as troubled. In May 2012, Nunes moved from the master bedroom to an unfinished guestroom, where she slept on an air mattress.
Nunes possessed a revolver, which she had received as a retirement gift. Nunes testified that she kept the gun on one of the exposed ceiling beams in the guestroom, " pushed way back," so that her young grandson could not reach it. She also testified that, although defendant knew she had a gun in the house, she was trying to hide the gun from him and, as far as she knew, defendant did not know where she kept the gun. Defendant testified, however, that he had known that Nunes kept her revolver in the guestroom because it was easily visible from the doorway. Defendant reported that Nunes's adult son, who sometimes stayed with them, " advised her, because of [their] arguing and everything, that she should get the gun completely out of sight."
One day in June 2012, Nunes asked defendant to meet her at a bar because she was " try[ing] to fix some [268 Or.App. 302] things" with their relationship. After drinking at that bar, at their home, and at another bar, they ended the evening at a third bar located about six blocks from their home. At some point, while at the third bar, Nunes began to exchange text messages with another man. Defendant took Nunes's phone later that night, read the text messages, and decided to start the process of filing for divorce.
Nunes and defendant drove home separately. Nunes arrived first and went to sleep in the guestroom around 1:00 a.m. after barricading the door with furniture. When defendant arrived home, he forced the guestroom door open and turned on the light. Nunes was on the air mattress, under blankets, and defendant thought she was pretending to be asleep. Defendant walked over to the window, where he says he found her revolver in a holster. He testified that he grabbed the gun because he was angry about how easily accessible it was: " [I]t made me mad the whole time it was in there that it was in reach of [Nunes's grandson], mostly, and it was in sight for anybody." Defendant called Nunes some vulgar names and fired the gun at the air mattress. Defendant later testified that, although he was concerned that Nunes's grandson would find the gun, at the moment when he grabbed it and shot the air mattress, he was only attempting to wake Nunes up. Nunes explained that, although she heard a " really loud pop" and felt her air mattress deflate, she did not know that the sound was a gunshot. Nunes asked defendant to leave the room. Defendant left, but returned in less than a minute and began stomping and kicking Nunes's legs. After defendant left the guestroom for a second time, Nunes waited " until it got quiet" and then went into her grandson's room, locked the door, and went to sleep.
Defendant went to the kitchen, loaded the revolver with a new round, and locked the gun in his truck under-neath some blankets overnight. After taking cash from Nunes's purse and cutting up her credit cards and some other documents, defendant went ...