State v. Bell
246 Or. App. 12
Or. Ct. App.2011Background
- Bell was convicted of three counts of felon in possession of a firearm after police found three guns in his residence, each in a different location.
- Bell stated that he acquired each firearm from a different person and stipulated a recent felony disqualification from firearm possession.
- Bell argued the three convictions should merge into a single conviction under ORS 161.067(3) due to a single criminal episode.
- The trial court denied merger, ruling there was a sufficient pause between possessory acts to allow renunciation as to each firearm.
- On appeal, the State argued ORS 161.067(3) either does not apply to cases involving non-personal victims or, if it does, each possession was a discrete act.
- Bell urged Ott (and related case law) to control, and contends White implicitly overruled Ott and Collins on the victim concept.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ORS 161.067(3) require merger of multiple firearm possessions? | State: Ott inapplicable; each possession was discrete, so no merger. | Bell: Ott and Collins control; the record shows a single objective, so should merge under ORS 161.067(3). | Separate convictions authorized; each possession was a separate act with opportunity to renounce. |
| Does Ott govern merger where there is no personal victim under ORS 161.067(3)? | State: Ott applies; victim can be the state, so merger not required. | Bell: Ott relied on a statutory definition of victim; not clearly applicable to ORS 161.067(3). | Ott not controlling; we focus on whether acts were separate; each possession supports separate convictions. |
Key Cases Cited
- State v. Ott, 96 Or.App. 511 (Or. App. 1989) (victim definition for former statute; applicability to ORS 161.067(3) discussed)
- State v. Collins, 100 Or.App. 311 (Or. App. 1990) (separate convictions for multiple firearms where possession of each firearm was a separate act)
- State v. Mac Donald, 232 Or.App. 431 (Or. App. 2009) (merger concession when multiple counts arise from a single criminal objective)
- State v. White, 346 Or. 275 (Or. 2009) (discusses victim definition and its application to ORS 161.067(3))