Possession of weapons by certain felons
Mentioned in
Overturning Apodaca v. Oregon Should Be Easy: Nonunanimous Jury Verdicts in Criminal Cases Undermine the Credibility of Our Justice System
“In 1934,…Oregon became the second state, after Louisiana, to allow nonunanimous juries in criminal cases.”
Bibliographic info
The Heller Promise versus the Heller Reality: Will Statutes Prohibiting the Possession of Firearms by Ex-Felons By Upheld after Britt v. State
“A close reading of both Britt and Heller in light of many of the firearm regulatory schemes currently in place in various jurisdictions indicates that felon possession statutes may very well be in danger…”
Bibliographic info
Source:
Section 166.270 — Possession of weapons by certain felons, https://www.oregonlegislature.gov/bills_laws/ors/ors166.html.
Notes of Decisions
In general
In prosecution under this section, testimony regarding value of items stolen from defendant’s house was permissible to show that defendant may have had a different motive for carrying gun than his alleged fear of another individual, namely, the motive to protect large amounts of cash and other valuable assets in his possession. State v. Jackson, 33 Or App 139, 575 P2d 1002 (1978), Sup Ct review denied
Where penitentiary inmate living at work release center did not come into possession of weapons until after leaving center, his conviction for committed felon in possession of weapon under ORS 166.275 was reduced to ex-convict in possession of firearm under this section. State v. Larsen, 44 Or App 643, 606 P2d 1159 (1980), Sup Ct review denied
Where defendant was convicted of violating this section and sentenced to maximum one year term of imprisonment, he had not been accorded misdemeanor treatment under ORS 161.585. State ex rel Redden v. Davis, 288 Or 283, 604 P2d 879 (1980)
Definition of firearm “capable of being concealed upon the person” in ORS 166.210 does not limit same term in this section since such definition states that it does “apply to and include” firearms with barrels less than 12 inches long. State v. Miller, 87 Or App 439, 742 P2d 692 (1987)
On remand, court did not err in denying defendant’s motion for judgment of acquittal on ex-convict in possession of weapon charge because fact that he had been sentenced to one year in county jail on underlying felony did not make it misdemeanor under this section. State v. Aldrich, 92 Or App 70, 757 P2d 440 (1988)
Trial court properly imposed minimum term sentence under ORS 161.610 based upon finding that defendant had threatened use of firearm while committing felony of being ex-convict in possession of firearm under this section. State v. Gilbert, 99 Or App 116, 781 P2d 389 (1989)
For purposes of this section, “convicted of a felony” means not only determination of guilt but also entry of judgment of conviction. State v. Dintelman, 112 Or App 350, 829 P2d 719 (1992)
Application of 1990 statutory amendment to felons convicted of crimes prior to amendment does not violate ex post facto provision of U.S. Constitution. U.S. v. Huss, 7 F3d 1444 (9th Cir. 1993)
Voiding of felony conviction removes firearm disability prospectively, but does not legalize possession of firearm during period disability was in place. Bailey v. Lampert, 203 Or App 45, 125 P3d 771 (2005), aff’d 342 Or 321, 153 P3d 95 (2007)
For purposes of merger under ORS 161.067, public is single collective victim of violation of felony possession of firearm. State v. Torres, 249 Or App 571, 277 P3d 641 (2012), Sup Ct review denied
“Ninja climbing claws” that are metal bands with short metal spikes on one side and are designed to be worn on hand with spikes on palm side to enable wearer to climb trees, are not “metal knuckles” as that term is used in this section. State v. Behee, 267 Or App 77, 340 P3d 127 (2014)
Defendant and defendant’s partner, who had pattern of committing organized shoplifting together at grocery stores with intent to resell items, participated in “enterprise” for purposes of Oregon Racketeer Influenced and Corrupt Organization Act. “Enterprise” includes formal and informal organizations or associations of individuals that engage in pattern of racketeering activity. State v. Walker, 356 Or 4, 333 P3d 316 (2014)
Where defendant possessed knife with blade that opened at rapid rate when small amount of pressure was applied, evidence was sufficient to find that blade projects or swings into place by force of “spring,” despite lack of visible spring. State v. Markwell, 281 Or App 196, 383 P3d 285 (2016)
Neither Article I, section 27, of Oregon Constitution, or second amendment to United States Constitution precludes state from making restriction applicable to in-home possession of firearms. State v. Beeman, 290 Or App 429, 417 P3d 541 (2018), Sup Ct review denied
“As-applied” challenge to this section on grounds that application of this section in case of “nonviolent” predicate felony would violate Second Amendment to United States Constitution would, at minimum, require evidentiary showing that underlying crime or defendant’s circumstances are outside those historically excluded from Second Amendment rights. State v. Shelnutt, 309 Or App 474, 483 P3d 53 (2021), Sup Ct review denied
Ex-convict
Notwithstanding that suspended sentence resulting from defendant’s 1970 conviction of felony had become misdemeanor by virtue of defendant’s successful completion of probation, prior conviction was “conviction of a felony” for purposes of this section. State v. Pritchard, 31 Or App 53, 569 P2d 690 (1977), Sup Ct review denied
Definition of “firearm” in ORS 164.055 (theft in first degree) is applicable under this section inasmuch as both crimes have closely related policy foundation, i.e., to deter obtaining of guns by those most likely to use them criminally. State v. Hash, 34 Or App 281, 578 P2d 482 (1978), Sup Ct review denied
State was required only to prove possession of concealable firearm and that defendant knowingly had possession. State v. Hash, 34 Or App 281, 578 P2d 482 (1978), Sup Ct review denied
Evidence of defendant’s prior felony conviction was properly admitted at trial for possession of firearm by ex-convict since prior conviction was not reduced to misdemeanor at time of judgment by sentence imposed. State v. Erb, 101 Or App 444, 790 P2d 1211 (1990)
Restriction on possession of firearms by felons does not violate right to bear arms granted by section 27, Article I of Oregon Constitution. State v. Hirsch, 177 Or App 441, 34 P3d 1209 (2001), aff’d 338 Or 622, 114 P3d 1104 (2005)
Provision that person has been convicted of felony if offense was felony at time of conviction and court did not declare conviction to be misdemeanor at time of judgment supersedes ORS 161.585 provision that felony subject to that section is automatically reduced to misdemeanor at sentencing if court imposes only fine. Koennecke v. Lampert, 198 Or App 444, 108 P3d 653 (2005), Sup Ct review denied
This section does not require culpable mental state with respect to person’s status as felon. State v. Rainoldi, 351 Or 486, 268 P3d 568 (2011)
For purpose of determining when court declares felony conviction to be misdemeanor, “time of judgment” refers to time when original judgment of felony conviction is entered, not to time when judgment reducing that conviction to misdemeanor status is entered. State v. Stark, 248 Or App 573, 273 P3d 941 (2012), aff’d 354 Or 1, 307 P3d 418 (2013)
Possession
For purposes of possession requirement it is sufficient that defendant have constructive possession and immediate access to weapon. State v. Kelley, 12 Or App 496, 507 P2d 837 (1973); United States v. Rousseau, 257 F3d 925 (9th Cir. 2001)
Possession of firearm may be established from evidence it was at premises jointly occupied by defendant. State v. Strong, 41 Or App 665, 598 P2d 1254 (1979)
Enhanced sentence authorized and imposed pursuant to ORS 161.610, following conviction under this section, did not offend vindictive justice principles of Oregon Constitution Article I, Section 15. State v. Lippert, 53 Or App 358, 632 P2d 28 (1981), Sup Ct review denied
Venue on charge of possession of restricted weapon was proper in Multnomah County, where defendant had been taken after being picked up by police in Clackamas County, because, although in custody, defendant exercised control of weapon until it was taken from him in Multnomah County. State v. Guest, 103 Or App 594, 798 P2d 708 (1990), Sup Ct review denied
Indictment alleging that defendant possessed pistol sufficiently alleged that defendant possessed firearm capable of being concealed. State v. Wolfs, 119 Or App 262, 850 P2d 1139 (1993), Sup Ct review denied
Where defendant was a convicted felon at the time of the alleged firearm possession and his conviction was declared a misdemeanor after by the time of the alleged possession, defendant was felon in possession because “at the time of judgment” in this section refers to judgment of conviction in effect at time of alleged possession. State v. Stark, 354 Or 1, 307 P3d 418 (2013)
COMPLETED CITATIONS: State v. Miller, 5 Or App 501, 484 P2d 1132 (1971), Sup Ct review denied
Law Review Citations
11 WLJ 296 (1975); 55 WLR 47 (2018)
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