State v. Nunes

A single criminal episode of possession during which a defendant felon has continuous actual or constructive possession of a firearm is not subject to the ORS 161.067 "anti-merger statute."

Defendant appealed a conviction of two counts of felon in possession of a firearm (FIP), arguing that the trial court erred by failing to merge the two charges into a single conviction. After a domestic dispute, Defendant, a previously convicted felon, took the victim’s revolver and used it to menace the victim. Defendant then locked the gun in his car overnight. The next day, Defendant turned the gun over to the Oregon City Police. Defendant was charged with two separate FIP charges, and the trial court held that the two incidents—the menacing with the gun at the home, and the delivery of the gun to the police station—were separate incidents of FIP. On appeal, Defendant argues that ORS 161.067, the “anti-merger statute,” does not apply here, as Defendant’s possession of the firearm was a continuous criminal event because the firearm never left Defendant’s possession. On review, the Court held that Defendant had only committed a single criminal episode during which Defendant retained actual or constructive possession over the firearm, and there was no “sufficient pause” which would permit application of the “anti-merger statute." Reversed for resentencing for a single FIP conviction, otherwise affirmed.