State v. Eggers

Conviction of “a misdemeanor that has, as an element of the offense, the use . . . of physical force,” qualifies the court to prohibit possession of a firearm or ammunition. ORS 166.255(3)(e).

Defendant appealed from a judgment of conviction for harassment “constituting domestic violence”. Defendant assigned error to the court's imposition of a prohibition on the possession of firearms or ammunition to his sentence under ORS 166.255. Defendant argued harassment was not a “qualifying misdemeanor” that triggered application of ORS 166.255(3)(e). The State argued that because ORS 166.255 mirrored a domestic abuse provision in the Violence Against Women Act (VAWA), the Supreme Court’s interpretation of harassment was authoritative, and applied to Defendant's conviction. Conviction of “a misdemeanor that has, as an element of the offense, the use . . . of physical force,” qualifies the court to prohibit possession of a firearm or ammunition. ORS 166.255(3)(e). The Court found the elements of harassment included “offensive physical contact” intended to harass or annoy. The Court reasoned the “physical force” element in various criminal statutes under Oregon case law was distinguishable from mere “physical contact.” Here, the State need only prove “offensive contact” without more. The Court considered the legislative history of ORS 166.255 with respect to its provisions “modeled after” VAWA, but noted sufficient differences in the text and interpretation. The Court concluded that Defendant’s “offensive contact” did not rise to the level of “physical force.” Remanded for corrected judgment removing the prohibition for Defendant to possess firearms or ammunition. Otherwise affirmed.