Defendant appeals three convictions for felon in possession of a firearm under ORS 166.270. We affirm for the reasons explained below.
Defendant’s convictions resulted from a search by police of his residence during which three firearms were discovered in separate places. Defendant stated to the police that he had acquired each firearm from a different person. At triаl, he stipulated that he had a recent felony conviction that disqualifies him from legally possessing a firearm. After he was found guilty, defendant argued that the guilty verdicts should merge into one conviction based on our holding in
State v. Mac Donald,
On appeal, defendant renews his argument that the trial court erred when it failed to merge the guilty verdicts into one conviction. According to defendant, the issue is governed by ORS 161.067(3) and the above circumstances can only give rise tо a single conviction under that statute, because the record before the trial court is devoid of any evidence that he “pоssessed one firearm and then the other two at different times, [or] that [he] ‘paused’ after possessing one firearm and later, after a sufficient time to renounce that crime, possessed a second firearm and then again after sufficient time, possessed the third.”
The state initially responds that ORS 161.067(3) is inapplicable because the statute does not contemplate a “personal” victim. Relying on our holding in
State v. Ott,
Defendant counters that
Ott
is distinguishable on its facts. Alternatively, dеfendant contends that
Ott
was erroneously decided because it relied on a statutory definition of the word “victim” in ORS 131.007, which does not exprеssly apply to ORS 161.067(3). Regardless, defendant ultimately contends that the holding in
Ott
was implicitly overruled by the Supreme Court’s holding in
State v. White,
Our analysis, in light of the parties’ arguments, begins with the text of ORS 161.067(3). It provides, in part:
“When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involvеs repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.”
We consider first whether the disposition of this case is controlled by our holding in Ott. In Ott, we decided whether former ORS 161.062 (1989), repealed by Or Laws 1999, ch 136, § 1, applied to the defendant’s circumstances — conviction of two counts of possession of a controlled substance (methamphetаmine and cocaine). Former ORS 161.062 contained language identical to the language in ORS 161.067(3), but the latter provision was enacted after the defendant committed the offenses for which he was convicted. We held that former ORS 161.062(4) was inapplicable because,
“for purposes of [former] ORS 161.062(4), the term ‘victim’ does not encompass either the state or the defendant where the charges involve possession of a controlled substance. *16 Rather, {former] ORS 161.062(4) is applicable only when repeated offenses are committed against a personal victim.”
Ott,
In
State v. Collins,
“As used in ORS 40.385, 135.230, 135.970, 147.417, 147.419 and 147.421 and in ORS chapters 136, 137 and 144, except as otherwise specifically provided or unless the context requires otherwise, ‘victim’ means the person or persons who have suffered finanсial, social, psychological or physical harm as a result of a crime and includes, in the case of a homicide or abuse of corpse in any degree, a member of the immediate family of the decedent and, in the case of a minor victim, the legal guardian of the minor. In no event shall the criminal defendant be considered a victim.”
We conclude that we need not decide whether
Ott
and
Collins
were correctly decided under
former
ORS 161.062(4) even though, as defendant points out, ORS 131.007 does not exprеssly provide a definition for the word “victim” for purposes of ORS 161.067(3).
3
See State v. Jones,
“The handguns were two separate objects, and there was evidencе, such as placement of the guns in different parts of the pickup, that they were concealed by separate acts. The offenses were not directed toward a single criminal objective.”
Here, similarly, the record establishes that defendant’s acts of pоssession of the firearms were separate acts. He obtained each firearm from a different person at a different time аnd then stored each firearm in a different location within his residence. These facts demonstrate, ás the trial court ruled, that defendant had the opportunity to renounce his criminal intent at each juncture. Consequently, ORS 161.067(3) authorized separate convictions for the рossession of each firearm.
Affirmed.
Notes
In
Mac Donald,
the defendant was convicted of five counts of identity theft arising from his possession of a wallet that contained various forms of a single victim’s personal identification. The state conceded that the convictions should have beеn merged into one conviction under ORS 161.067(3), and we accepted that concession in light of our holding in
State v. Merrick,
ORS 166.250(l)(b) makes it unlawful to possess a concealed firearm within a vehicle.
Since 1989, ORS 131.007 has been amended to provide a definition for “victim” that is applicable to other statutes, but those additions do not include ORS 161.067(3).