State v. Clemente-Perez
322 P.3d 1082
Or. Ct. App.2014Background
- Defendant appeals a conviction for unlawful possession of a firearm under ORS 166.250(1).
- He challenges the denial of his motion for judgment of acquittal on two grounds: (a) insufficient evidence he was within a vehicle when possessing the firearm, and (b) the gun was within his place of residence under ORS 166.250(2)(b).
- The handgun was retrieved from a truck parked on defendant’s property, under an awning near the house, and later stored under the rear-seat storage compartment; the compartment was not locked when returned.
- Trial evidence showed the gun was not inside the house but in or near a vehicle on defendant’s property; the state argued various readings of the statute.
- The court held defendant did not preserve the vehicle-inside-the-truck theory for appeal and affirmed the conviction on the place-of-residence analysis, construing ORS 166.250(2)(b) through Leslie and Wolf to require daily living activities in the place claimed as residence.
- The court concluded the truck and awning area were not defendant’s place of residence because there was no evidence he used that area for daily living activities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the state proved the handgun was readily accessible in a vehicle | Defendant contends he was not within the vehicle with the gun | State failed to prove he was within the truck when gun possessed | Claim not preserved; no address of the theory on appeal |
| Whether the 'place of residence' exception applies to the truck on defendant’s property | Gun was within defendant’s place of residence because truck never left property | Truck is within residence; residence includes area where daily living occurs | Truck not within place of residence; not entitled to acquittal on this basis |
| Whether the trial court adequately preserved or adjudicated the preservation issue | Preservation standards require specific theory to challenge sufficiency | Argument preserved via theory that statute targets parked/owned property scenarios | Court treated preservation strictly; defendant failed to preserve the vehicle theory |
| Whether the court should interpret ORS 166.250(2)(b) to cover non-building daily living areas | Leslie/Wolf support broadened 'place of residence' to outdoor areas | Residence limited to areas where daily living occurs; truck not such area | Outdoor areas may be residence if daily activities occur there; under facts, not shown |
Key Cases Cited
- State v. Leslie, 204 Or. App. 715 (2006) (defines 'place of residence' as where a person actually lives, with daily living activities)
- State v. Wolf, 260 Or. App. 414 (2013) (expands 'place of residence' to outdoor areas if daily living activities occur there)
- State v. Perry, 336 Or. 49 (2003) (historical view of 'place of residence' exception as a limited carve-out to licensing)
- State v. Gaines, 346 Or. 160 (2009) (statutory interpretation framework for ORS 166.250(2)(b) and related provisions)
- State v. Paragon, 195 Or. App. 265 (2004) (preservation standard for sufficiency challenges)