State v. Miller

Sep 16, 1987
C82-06-35828, C86-09-34330 CA A42784 (Control), A42785
Reporters:
, ,
Before:
Rossman
*441 ROSSMAN, J.

Defendant appeals his conviction, following a stipulated facts trial to the court, for being an ex-convict in possession of a firearm. ORS 166.270. He also appeals the subsequent reinstatement of his prison sentence and revocation of his probation on an earlier forgery in the ‍‌‌​​​​​‌‌​‌​‌​‌​‌​‌‌​​‌‌‌‌​​​​‌​​‌‌‌​‌‌​​​​​‌​‌‌​​‌‌‌‌​‌‌​‌‌​​‌‌‌​​​​​‌​​‌​​‌‌‌​‌‌‌‌​​‌​​‌‌​‌‌‌‌‍first degree conviction. The sole issue with respect to both appeals is whether the sawed-off shotgun that defendant admits to having had in his possession is a “firearm capable of being concealed upon the person,” as that phrase is used in ORS 166.270(1). We affirm.

ORS 166.270(1) provides, in part:

“Any person who has been convicted of a felony * * * who owns, or has in the person’s possession or under the person’s custody or control any firearm capable of being concealed upon the person, or any machine gun, ‍‌‌​​​​​‌‌​‌​‌​‌​‌​‌‌​​‌‌‌‌​​​​‌​​‌‌‌​‌‌​​​​​‌​‌‌​​‌‌‌‌​‌‌​‌‌​​‌‌‌​​​​​‌​​‌​​‌‌‌​‌‌‌‌​​‌​​‌‌​‌‌‌‌‍commits the crime of exconvict in possession of a firearm.” (Emphasis supplied.)

Defendant does not contend that the sawed off shotgun, which had an 18-1/4 inch barrel and an overall length of 28-3/4 inches, was too large to be concealed on his person. He argues that, for the purpose of ORS 166.270(1), a firearm “capable of being concealed upon the person” is defined and limited by ORS 166.210(2), which provides:

“ ‘Pistol,’ ‘revolver’ and ‘firearms capable of being concealed upon the person,’ apply to and include all firearms having a barrel ‍‌‌​​​​​‌‌​‌​‌​‌​‌​‌‌​​‌‌‌‌​​​​‌​​‌‌‌​‌‌​​​​​‌​‌‌​​‌‌‌‌​‌‌​‌‌​​‌‌‌​​​​​‌​​‌​​‌‌‌​‌‌‌‌​​‌​​‌‌​‌‌‌‌‍less than 12 inches in length.” (Emphasis supplied.)

Defendant’s reliance on ORS 166.210(2) is misplaced. The statute’s use of the phrase “apply to and include” rather than the term “means,” which is used in the definition of “firearm” in ORS 166.210(1), 1 shows that the legislature, did not intend firearms with barrels less than 12 inches in length to be the exhaustive class of firearms capable of concealment. See Beaver v. Pelett, 299 Or 664, 668, 705 P2d 1149 (1985). Rather, firearms with barrels less than 12 inches in length are “capable of being concealed ‍‌‌​​​​​‌‌​‌​‌​‌​‌​‌‌​​‌‌‌‌​​​​‌​​‌‌‌​‌‌​​​​​‌​‌‌​​‌‌‌‌​‌‌​‌‌​​‌‌‌​​​​​‌​​‌​​‌‌‌​‌‌‌‌​​‌​​‌‌​‌‌‌‌‍upon the person” as a matter of *442 law. With respect to a firearm with a barrel 12 inches in length or longer, whether it is capable of being concealed upon the person depends on the circumstances of the particular case. Here, the trial court found that the sawed-off shotgun, which had an 18-1/4 inch barrel and was equipped with a pistol grip, was capable of being concealed on defendant’s person. There was no error. 2

Affirmed.

Notes

1

ORS 166.210(1) provides:

“ ‘Firearm’ means a weapon, by whatever name known, which is designed to. ‍‌‌​​​​​‌‌​‌​‌​‌​‌​‌‌​​‌‌‌‌​​​​‌​​‌‌‌​‌‌​​​​​‌​‌‌​​‌‌‌‌​‌‌​‌‌​​‌‌‌​​​​​‌​​‌​​‌‌‌​‌‌‌‌​​‌​​‌‌​‌‌‌‌‍expel a projectile by the action of black powder or smokeless powder and which is readily capable of use as a weapon.” (Emphasis supplied.)
2

To the extent that this holding is inconsistent with State v. Clipston, 3 Or App 313, 323, 473 P2d 682 (1970), it is overruled.