Notes of Decisions
In General
In prosecution under this section, testimony regarding value of items stolen from defendants 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 (Possession of weapons by inmates of institutions) 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 (Classification of certain crimes determined by punishment). 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 (Definitions) 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 defendants 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 (Enhanced penalty for use of firearm during commission of felony) 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 factoprovision 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), affd 342 Or 321, 153 P3d 95 (2007)
Ex Convict
Notwithstanding that suspended sentence resulting from defendants 1970 conviction of felony had become misdemeanor by virtue of defendants 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 the first degree) (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 defendants 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), affd 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 (Classification of certain crimes determined by punishment) 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
Persons status as felon is material element of crime for which culpable mental state is necessary to establish that person committed crime. State v. Rainoldi, 236 Or App 129, 235 P3d 710 (2010), Sup Ct review allowed
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 (Enhanced penalty for use of firearm during commission of felony), 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
Completed Citations
State v. Miller, 5 Or App 501, 484 P2d 1132 (1971), Sup Ct review denied
Law Review Citations
11 WLJ 296 (1975)
Law Review Citations
26 WLR 566 (1990)
Chapter 166
Law Review Citations
51 OLR 427-637 (1972); 69 OLR 169 (1990)
