State v. Torres
249 Or. App. 571
Or. Ct. App.2012Background
- Torres, a felon, was found in possession of 21 firearms in his wife's basement and admitted he knew he was not allowed to possess firearms.
- Torres was indicted on 21 counts of felon in possession of a firearm, and a jury convicted on all counts.
- At sentencing, Torres moved to merge the 21 offenses under ORS 161.067(3) based on a single conduct/episode and single venue.
- The trial court merged the 21 convictions; the State appealed and Torres cross-appealed, relying on State v. Ott and State v. Collins to argue the victim was not a person.
- The central issue was how to interpret 'victim' in ORS 161.067(3) for felon-in-possession convictions under ORS 166.270.
- The court concluded the gravamen of ORS 166.270 is the possession by a felon and that the public constitutes the victim for purposes of merger, thus upholding the merger.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ORS 161.067(3) require a personal victim for merger? | State: victim can be nonperson; Collins is inapplicable. | Torres: victim must be a person under prior holdings like Collins. | Public is the victim; merger proper. |
| What is the proper victim definition under ORS 161.067(3) for ORS 166.270 offenses? | State: apply Glaspey approach; identify gravamen of the offense. | Torres: victim should be a person under traditional definitions. | Victim is the public; gravamen analyzed via the underlying statute. |
| Does the gravamen of ORS 166.270 render the public the victim for merger under ORS 161.067(3)? | State: felon status effects and harms to public at large. | Torres: no personal victim, so no merger under prior reasoning. | Yes; the public is the victim, so merger is authorized. |
Key Cases Cited
- State v. Glaspey, 337 Or. 558 (2004) (victim definition for ORS 161.067 based on the substantive offense)
- State v. Mullen, 245 Or. App. 671 (2011) (look to substantive statute to determine number of victims)
- State v. Ott, 96 Or. App. 511 (1989) (victim concept tied to personal victim in former statutes)
- State v. Collins, 100 Or. App. 311 (1990) (held former ORS 161.062(4) did not apply when victim was state)
- State v. Moncada, 241 Or. App. 202 (2011) (gravamen approach to determine intended protected class)
- State v. Hirsch/Friend, 338 Or. 622 (2005) (felony status as basis for restricting possession by felons)