and submitted October 13, 2017
County Circuit Court 130219CR; Robert F. Nichols, Jr., Judge.
D. Howen argued the cause and fled the briefs for appellant.
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
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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.
Or.App. 430] JAMES, J.
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.
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.
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.
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.
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).
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 § 6.1(e), 433 (2d ed 2003)
("Constructive possession, which is simply a doctrine