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State v. Beeman

Court of Appeals of Oregon

February 22, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
OLEN D. BEEMAN, Defendant-Appellant.

          Argued and submitted October 13, 2017

         Lake County Circuit Court 130219CR; Robert F. Nichols, Jr., Judge.

          Ronald D. Howen argued the cause and fled the briefs for appellant.

          Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant appeals from a judgment of conviction of one count of felon in possession of a firearm, ORS 166.270. On appeal, defendant assigns error to, among other issues, the trial court's denial of his motions for judgment of acquittal. Specifically, defendant challenges the government's power to restrict a felon's right to possess, actually and constructively, firearms within the home, relying on the Second Amendment to the United States Constitution and Article I, section 27, of the Oregon Constitution. The state contends that both the United States Supreme Court and the Oregon Supreme Court have recognized that the state may lawfully restrict the possession of firearms by felons. Held: The Second Amendment and Article I, section 27, do not prohibit the criminalization of actual possession of a firearm by a felon in the home. Because the jury here was instructed on actual possession and some evidence supported actual possession, the Court of Appeals did not reach the question of constructive possession of a firearm by a felon in the home.

          [290 Or.App. 430] JAMES, J.

         Defendant appeals from a judgment of conviction of one count of felon in possession of a firearm, ORS 166.270. On appeal defendant raises, among other issues, two assignments of error pertaining to the denial of motions for judgment of acquittal that both, in essence, raise the same constitutional question: does either the Second Amendment to the United States Constitution, or Article I, section 27, of the Oregon Constitution limit the government's power to criminalize the actual, or constructive, possession of a firearm by a felon in their home? As discussed below, we recognize that the potential for constitutional limitations on the concept of constructive possession is an interesting, and unresolved, area of law. However, we need not reach that question in this case, because, in addition to constructive possession, the jury here was instructed on actual possession, and some evidence supported actual possession. As to whether either the Second Amendment, or Article I, section 27, prohibit the criminalization of actual possession of a firearm by a felon in the home, as defendant argues, we hold they do not. Accordingly, we affirm.[1]

         The underlying facts are largely undisputed by the parties. Defendant was convicted of second-degree burglary, a Class C felony, in 2002. Although that conviction was later reduced to a misdemeanor, because of the initial felony conviction defendant fell under the dictates of ORS 166.270(1), which prohibits the owning, possession, or "custody and control" of any firearm by a convicted felon. While there are statutory provisions in Oregon that provide a mechanism for certain felons to restore their firearm rights, defendant never pursued those options.

         In September 2013, two Oregon State Troopers, conducting an investigation into possible game violations and unlawful cutting of timber in rural Lake County, encountered a deer hunting camp site. That camp site was occupied by defendant, his wife, his father, and one other individual. During the investigation, the troopers learned from Oregon [290 Or.App. 431] State Police dispatch that defendant was a convicted felon. The troopers obtained consent to search the camp trailer in which defendant and his wife were residing, where they found a .38 caliber revolver in a refrigerator and a 9mm semiautomatic pistol on or near a bed in the trailer. A deer rifle was also found in the camp, but not in the trailer.

         A grand jury indicted defendant on one count of felon in possession of a firearm. At trial, defendant raised state and federal constitutional challenges to the charge in the form of motions for judgment of acquittal, which were denied by the court. On appeal, defendant renews his challenge, which we construe as involving two separate arguments. First, defendant raises an as-applied challenge, arguing that the Second Amendment and Article I, section 27, prohibit the doctrine of constructive possession from being applied in this case, because doing so would functionally deprive his spouse of her lawful right to possess firearms in their shared home. Second, defendant raises what we construe as a facial overbreadth challenge to ORS 166.270(1), arguing that in the wake of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the state cannot prohibit the actual possession of firearms by felons when that possession occurs entirely within the home.

         For the purposes of ORS 166.270(1), "Possess means to have physical possession or otherwise to exercise dominion or control over property." ORS 161.015(9) (internal quotation marks omitted). Possession includes "actual" and "constructive" possession. State v. Casey. 346 Or. 54, 59, 203 P.3d 202 (2009). Actual possession means physical possession, that is, "bodily or physical control" of property. State v. Fries. 344 Or. 541, 546, 185 P.3d 453 (2008). Constructive possession means exercising control over property or having the right to do so. State v. Nunes. 268 Or.App. 299, 306, 341 P.3d 224 (2014).

         To establish constructive possession, the state must establish that "defendant knowingly exercised control of or the right to control" the firearm. State v. Coria,39 Or.App. 507, 511, 592 P.2d 1057, rev den, 286 Or. 449 (1979). "The right of control may be exercised jointly with other people, it need not be exclusive in order for the defendant to be criminally [290 Or.App. 432] responsible." Id. To prove control, the state need only show that the firearm was available for the defendant's use. State v. Marsh, 78 Or.App. 290, 294, 716 P.2d 261, rev den,301 Or. 320 (1986). Accordingly, constructive possession broadens the crime of possession beyond actual physical control. Casey, 346 Or at 60; see Wayne R. LaFave, 1 Substantive Criminal Law ยง 6.1(e), 433 (2d ed 2003) ("Constructive possession, which is simply a doctrine ...


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