State v. O'Dell

Defendant's charges of felon in possession of a firearm should be merged if Defendant was found in constructive possession of the firearms and there is not sufficient evidence to show an interruption in the possession.

Defendant appealed four counts of felon in possession of a firearm. A witness had seen Defendant handling two firearms on two separate occasions. Later, the police executed a search warrant finding a total of four guns (two of which Defendant had been seen handling). Defendant appealed the trial court's denial of his motions for judgment of acquittal related to the two counts concerning weapons he was not seen handling, and the trial courts denial of his motion to merge the four guilty verdicts into a single conviction. As to the motion to acquit, Defendant argued that the state proved, at most, that he had access to the firearms, and that access is not enough to show possession, custody, or control within the meaning of ORS 166.270(1). The State countered that the evidence was sufficient to show that Defendant had constructive possession of all the firearms in the cabinet and that the statute, as applied, does not require proof that Defendant exercised custody or control. The Court held that ORS 166.270 criminalizes both actual and constructive possession. As to the trial courts denial of the merger of 4 counts, the Court found that because Defendants possession of the firearms was constructive it is not possible to conclude that the Defendants possession ever "paused" or "interrupted." The court held that the trial court erred when it denied the motion to merge the four counts. Reversed in part, and remanded.