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Shoot wife's cell phone, become a convict :-)

Discussion in 'Legal & Political Archive' started by Law of Self Defense, Mar 23, 2014.

  1. Law of Self Defense

    Law of Self Defense Boston, MA Bronze Vendor Bronze Vendor

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    Well, this guy DID shoot his wife's cell phone, and he DID get convicted of second-degree criminal mischief as a result, but the actually interesting part of this just-decided (February) case was the Oregon Court of Appeals clarifying the scope of a "place of residence" for gun possession purposes. Here's a summary of that case:

    State v. Clemente-Perez, 2014 Ore. App. LEXIS 201 (OR Ct. App. 2014)

    February 20, 2014, filed

    Overview

    The defendant, Fernando Clemente-Perez, got angry enough at his wife’s cell phone that he retrieved a pistol from his pickup truck parked beside his home and shot the phone dead. He then wrapped the pistol in a towel and placed it in a lockable—but not locked—storage container under the seat of his truck.

    At trial the defendant was convicted of second-degree criminal mischief for the shooting of the phone. He did not appeal this conviction.

    He was also convicted of unlawful possession of a firearm under Oregon Revised Statute (ORS) § 166.250. The defendant here appeals this conviction on the grounds that §166.250 provides an exemption for firearms that are possessed within one’s place of residence. In this case, he argues, the pickup truck parked beside his home constituted part of his residence.

    The question on appeal, then, was how broadly to define the scope of the “residence” carve out for the purposes of §166.250.

    Facts in Evidence

    All parties conceded that the home beside which the defendant’s truck was parked was his actual place of residence. The truck was parked under a stand-alone awning structure a few feet from the garage. It is also agreed that at all relevant times the defendant’s truck was parked under the awning near his driveway and never left his property.

    The Law

    The relevant portion of §166.250 provides that:

    [A] person commits the crime of unlawful possession of a firearm if the person knowingly . . .
    (b) Possesses a handgun that is concealed and readily accessible to the person within any vehicle . . .​

    (2) This section does not prohibit:
    (b) Any citizen of the United States . . . from owning, possessing or keeping within the person’s place of residence . . . any handgun . . .​

    On appeal the defendant argued that the trial court should have granted his motion for judgment of acquittal under section §166.250(2)(b) because, he argues. there was uncontroverted evidence that he met that “place of residence” exception. In particular, the defendant argued at trial that a person’s “place of residence” includes a vehicle parked in the driveway of the person’s house.

    Legal Analysis

    The Oregon courts have previously examined the “place of residence” exception to §166.250(20(b) in two previous cases. State v. Leslie, 132 P.3d 37 (2006) and State v. Wolf, 317 P.3d 377 (2013).

    In Leslie, the defendant owned a pickup truck with a cover over the bed. When arrested, the defendant had been living in the truck for several years, considered it to be his home, and normally ate, slept, and studied for college there. His arrest occurred when police discovered several concealed handguns in the truck and confirmed that the defendant did not have a concealed handgun license.

    Appealing his conviction, the defense argued that the truck qualified as his “place of residence,” while the state argued that the “place of residence” exception should apply only to fixed and permanent structures.

    The appellate court ruled that by “place of residence” the legislature intended to refer to any actual residence in which a person normally engaged in particular activities of daily life—sleeping, eating, and drinking. Thus the court concluded that “place of residence” under §166.250(2)(b) meant “the place where a person actually lives, i.e., where he or she regularly eats, drinks, and sleeps,” even if that place is not a building or other structure. Because it was undisputed that the defendant did, in fact, live in his truck, the truck qualified as his “place of residence.” His conviction was reversed.

    In Wolf, the defendant had rented a campsite with the intention to stay about a week. He had pitched a tent and had made a pot of coffee when he was approached by a Forest Service officer while outside of his tent. When asked, the defendant admitted he had a pistol in his pocket and that he did not possess a concealed handgun license. He was consequently arrested and charged under §166.250.

    As in Leslie, the defendant here argued that he fell within the “place of residence” exception of §166.250(2)(b). The state conceded that the legislature intended to allow people to possess concealed handguns in their “place of residence,” but argued that this would have limited the scope of defendant’s right to the interior of his tent.

    On appeal the court noted that both the truck in Leslie and the tent in Wolf “are temporary structures in which daily living activities may be conducted and, therefore, both can function as a person’s ‘place of residence.’”

    The question that remained in Wolf was whether areas outside of such structures could also be included within the scope of a person’s “place of residence.” The court decided that the answer was “yes,” so long as there was evidence that the outdoor area could be considered to be within a defined “place” and that daily living activities would be conducted there.

    Further, they decided in the case of Wolf that there was such evidence of “daily living activities” to infer that the area immediately adjacent to his tent ought to be included as part of his “place of residence.” This evidence included the defendant’s intention to stay there for a week, the presence of firewood for heat and cooking fuel, the presence of picnic tables, and the defendant’s testimony that he had made a pot of coffee shortly before the officers arrived.

    The appellate court in the instant case then applied Leslie and Wolf to the defendant’s argument. Unlike in Leslie, the defendant here did not contend that the truck itself is his place of residence but that his place of residence includes the truck because it was parked in close proximity. And unlike in Wolf, the defendant here did not contend that the awning area where the truck was parked was part of his place of residence because he engaged in daily living activities there, but only because of its physical proximity to his place of residence.

    The court then noted:

    Defendant presented no evidence on the purpose of the awning structure, its fundamental relationship with the house, or the amount of time he spent within that structure. As defendant does not argue that he used the area in which the truck was located for daily living activities, it was not his place of residence for purposes of §166.250(2)(b). Accordingly, he was not entitled to a judgment of acquittal on that basis.​

    Holding

    Defendant’s conviction for unlawful possession of a firearm under Oregon Revised Statute (ORS) § 166.250 was affirmed.
     
    1337BaldEagle likes this.
  2. rick benjamin

    rick benjamin USA, Or, Damascus Secure the drama Silver Supporter 2016 Volunteer

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    Andrew;
    Welcome to NWF!
    Guy needs to get a handle on his decision cycle.
    Could have looked like a champ if he'd:
    Tossed wife's phone in the oven at 550F
    Smashed it against something, smashed it w a hammer
    Re-formatted it
    Reported it stolen, rendering it useless
    Instead of planning to go outside, get his gun, shoot the phone, etc.
    Now that gun has to live what it did for the rest of it's life...
     
    PaulZ, Sgt Nambu, Riot and 1 other person like this.
  3. Koda

    Koda Oregon Bronze Supporter Bronze Supporter 2016 Volunteer

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    Interesting in the State vs. Wolf case I wonder if that "place of daily living activities" could include the path from the campsite to the campground outhouse?
     
  4. Law of Self Defense

    Law of Self Defense Boston, MA Bronze Vendor Bronze Vendor

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    I could make a strong argument on those facts. :)
     
  5. GunRightsCoalition

    GunRightsCoalition Vancouver Well-Known Member 2015 Volunteer 2016 Volunteer

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    Good question. Based on the arguments and decisions I would think so. It seems to me that an argument could also be made that the entire campground (not just the campsite) other than other campsites is part of your residence. (It seems this ruling was simply because he did not state that it was his living area as well) What I don't get here is that the defendant in the Wolf case should not have been required to prove that it was his residence. On the contrary it should have been left to the prosecutor to prove that it was not.
     
  6. Law of Self Defense

    Law of Self Defense Boston, MA Bronze Vendor Bronze Vendor

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    The trial court declined to grant a judgment of acquittal on the basis of the "place of residence" exemption, it being unclear as a matter of law (not as a matter of fact, or as an element of the crime) whether the area outside the tent qualified as a "place of residence."

    The jury convicted. On appeal following a conviction, the facts are looked at in the light most favorable to the state, and the burden is on the defendant (appellant) to overcome that presumption.

    --Andrew, @LawSelfDefense
     
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  7. Mark W.

    Mark W. Silverton, OR Bronze Supporter Bronze Supporter

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    Now this is some good info. I learned something. It was clear to the point and backup by laws and how those laws were applied. Thanks guys and especially Law of Self Defense
     
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  8. Nick Burkhardt

    Nick Burkhardt NE Oregon Well-Known Member

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  9. Law of Self Defense

    Law of Self Defense Boston, MA Bronze Vendor Bronze Vendor

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    My pleasure, and thanks for the kind words.

    I don't know where Silverton, OR is, but I'll be in Tualatin the weekend of May 3-4. If you're in the neighborhood come say hello! :)

    --Andrew, @LawSelfDefense
     
  10. Koda

    Koda Oregon Bronze Supporter Bronze Supporter 2016 Volunteer

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    I'm still a little confused as to how Fernando (cell phone shooter...) could be convicted of unlawful possession of a firearm on his own property? Cant we carry concealed without a permit anywhere on our property?
     
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  11. Law of Self Defense

    Law of Self Defense Boston, MA Bronze Vendor Bronze Vendor

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    The "property" exception is not for "legal property" in the sense of what you have legal title to. It applies only to portions of that property that are a "place of residence." The courts have parsed that in a variety of ways, one of which excluded the truck.

    --Andrew, @LawSelfDefense
     
  12. Nick Burkhardt

    Nick Burkhardt NE Oregon Well-Known Member

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    Sgt Nambu likes this.
  13. 1337BaldEagle

    1337BaldEagle Earth Active Member

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    Great analysis! I enjoyed reading.

    Eagle
     
  14. Koda

    Koda Oregon Bronze Supporter Bronze Supporter 2016 Volunteer

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    if I understand you correctly then your land is legally the same as your "property" the same as say your car or TV?
    Fascinating, I will revisit the statues. This would mean then that you cant carry concealed without a permit in your own garage, which if I understand correctly is legally not considered a place of residence (unless its set up and used that way). Weird to think about.
     
  15. mpmax

    mpmax Woodburn Active Member

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    Was "Fernando" convicted of illegal possession of a firearm because....I'm going out on a limb here....he wasn't legally residing in this country?
     
  16. ZigZagZeke

    ZigZagZeke Eugene Silver Supporter Silver Supporter 2015 Volunteer

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    It seems to me that Fernando simply argued his case incorrectly. Certainly, going to and from, and storing one's vehicle on one's own property is a part of daily living activities. The garage or carport is certainly within the curtilage of the property, which is what is generally held to be the "residence". I would think that Fernando should move to a higher court and argue the case differently.
     
  17. Law of Self Defense

    Law of Self Defense Boston, MA Bronze Vendor Bronze Vendor

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    Too late Boston time for a comprehensive response, but the answer is in the actual court decisions. Protip: in your hypothetical the "garage" is actually attached to the house, and may well do more than merely shelter a vehicle. :)

    --Andrew, @LawSelfDefense
     
  18. Law of Self Defense

    Law of Self Defense Boston, MA Bronze Vendor Bronze Vendor

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    The court clearly did not apply a "curtilage" standard in this case, nor did the other referenced court cases. Indeed, I don't believe that the word "curtilage" was mentioned in either this case or the two primary cases cited in the decision.

    Not once.

    One could argue that they OUGHT to have applied a curtilage standard--but they did not, and as a result the unlawful possession law does not apply in the context of curtilage.

    --Andrew, @LawSelfDefense
     
  19. ZigZagZeke

    ZigZagZeke Eugene Silver Supporter Silver Supporter 2015 Volunteer

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    I believe I have seen a curtilage standard applied in other Oregon court cases in the past. I reiterate, he should appeal and argue that point.
     
  20. Law of Self Defense

    Law of Self Defense Boston, MA Bronze Vendor Bronze Vendor

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    Also, this case did not involve a garage or carport, either of which if attached to the home would clearly have been deemed a part of his "place of residence".

    --Andrew, @LawSelfDefense