S055674, Opinion — State v. Casey

54
Argued and submitted November 3, 2008, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court for further
proceedings March 5, 2009
STATE OF OREGON,
Respondent on Review,
v.
RICHARD BRIAN CASEY,
Petitioner on Review.
(CC CR030474; CAA125350; SC S055674)
203P3d202
CJS, Weapons§ 13.
En Banc
On review from the Court of Appeals.*
Shawn Evans 	Wiley, 	Chief Deputy Public Defender,
Salem, argued the cause and filed the brief for petitioner on
* Appeal from Yamhill County Circuit Court, John L. Collins, Judge. 215 Or
App 76, 168 P3d 315 (2007).

Cite as 346 Or 54 (2009) 	55
review. With him on the brief was Peter Gartlan, Chief
Defender, Office of Public Defense Services.
Denis M. Vannier, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
KISTLER,J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is 	reversed, 	and the 	case is
remanded to the circuit court for further proceedings.

KISTLER,J.
The question in this case is whether defendant con-
structively possessed a gun that his guest put on defendant's
counter as defendant and the guest briefly stepped out of
defendant's trailer. The trial court denied defendant's motion
for judgment of acquittal and, sitting as the trier of fact,
found defendant guilty of being a felon in possession of a fire-
arm. The Court of Appeals affirmed. State v. Casey, 215 Or
App 76, 168 P3d 315 (2007). We allowed defendant's petition
for review and now reverse the Court of Appeals decision and
the trial court's judgment.
Because this appeal arises from the trial court's
denial of defendant's motion for judgment of acquittal, we
state the facts in the light most favorable to the state. State v.
Wolleat, 338 Or 469, 471, 111 P3d 1131 (2005). Defendant
had three guests over to his trailer on a piece of property in
Yamhill County. One of his guests, Mealue, had concealed a
gun on his person before he entered defendant's trailer.
Approximately 15 minutes after defendant's guests arrived,
two police officers drove up to the trailer to investigate a tres-
passing complaint against defendant. As the officers arrived,
defendant and another guest began leaving the trailer, and
the officers asked the other two guests to come out of the
trailer. Defendant was the second person to come out of the
trailer, and Mealue was the third. As Mealue was leaving the
trailer, he took the gun from under his shirt and put it on a
counter just inside the door but visible from outside the
trailer. As Mealue did so, he told the officers, "I have a gun
* * * and it is on the counter, just to let you boys know."
Defendant said that the gun was not his and that he "didn't
see it until [he was] on the way out of his trailer."
After defendant and his guests came outside, the
officers told defendant that he did not have a right to be on
the property. Defendant said that he did and that he had doc-
uments to prove it. With the officers' consent, defendant went
back into the trailer and got the documents. After defendant
got the documents, one of the officers noticed that a bowl
inside the trailer appeared to contain contraband. Again with
the officers' consent, defendant went into the trailer and
retrieved the bowl, which contained rocks. The officers asked

Cite as 346 Or 54 	57
if anyone was a convicted felon, and defendant acknowledged
that he was.
The officers decided to retrieve the gun from the
trailer. Defendant objected to the officers' going into his
trailer and told them that he or one of his guests would get
the gun. An officer told defendant that defendant could not
get the gun because he was a felon and doing so would be ille-
gal. As one of the officers began walking toward the trailer to
get the gun, defendant "raced" to the door, grabbed the offi-
cer's arm, and said, "[Y]ou are not going into my house." The
officer, however, had gotten there first and blocked the door
to the trailer. The other officer restrained defendant while
the first officer reached into the trailer and took the gun off
the counter. After they had gotten the gun, one of the officers
told defendant that he could not have allowed defendant to
get the gun because "you are a felon and that's basically ille-
gal." Having said that, the officers arrested defendant for
being a felon in possession of a firearm, and the state charged
him with that offense.
At the close of the state's case, defendant moved for a
judgment of acquittal, arguing, among other things, that the
evidence was insufficient to prove that he had possessed
Mealue's gun. The trial court denied the motion. Later, sit-
ting as the trier of fact, the trial court found defendant guilty
of being a felon in possession of a firearm. The court con-
cluded that, although defendant did not have actual posses-
sion of the firearm, he had constructive possession of it. The
court found that, when defendant went back into the trailer
to retrieve the documents and suspected contraband (the
bowl of rocks), the gun was "something * * * over which
[defendant] had a right to exercise control just like every-
thing else that was inside of the trailer." As the court
explained, defendant "did voluntarily go back into the resi-
dence, come within range of the weapon at the time when he
was a convicted felon * * * and that constitutes felon in pos-
session of a firearm." The trial court entered judgment
accordingly.
The Court of Appeals affirmed the trial court's judg-
ment. Rather than focus on defendant's entries into the
trailer, as the trial court had, the Court of Appeals focused on

58 	State v. Casey
defendant's attempt to deny the officers entry into his trailer.
Id. at 81-82. The court explained that "defendant knowingly
exercised control over the firearm by telling the officers that
he would retrieve it from the trailer for them and by walking
toward the trailer to do that." Id. We allowed defendant's
petition for review to consider whether the evidence was suf-
ficient to permit a reasonable trier of fact to find beyond a
reasonable doubt that defendant possessed Mealue's gun. See
State v. Fries, 344 Or 541, 545, 185 P3d 453 (2008) (stating
the standard of review).
In analyzing that question, we begin with the text of
ORS 166.270(1). That statute provides that a person commits
the crime of being a felon in possession of a firearm if the per-
son "has been convicted of a felony * * * [and] owns or has in
the person's possession or under the person's custody or con-
trol any firearm." The plain wording of that statute requires
proof of three elements. The first element is that the person
has been convicted of a felony, which defendant does not chal-
lenge. The second element is that the item in question is a
firearm, which defendant does not challenge on appeal. 1
Finally, the third element is that a defendant must either
"own" or have "possession," "custody," or "control" of the
firearm.
Ownership, 	possession, custody, and control are
related and often overlapping concepts. Originally, the legis-
lature did not define any of those terms, 2 and this court his-
torically focused on the broader legal concepts of actual and
constructive possession in interpreting the felon-in-possession
statute. In 1964, this court held that ORS 166.270 prohibited
constructive as well as actual possession of a firearm without
ever discussing whether it based that holding on the word
"possession" or the word "control" in ORS 166.270. See State
v. Miller, 238 Or 411, 414, 395 P2d 159 (1964) ("Cases reach-
ing a result seemingly contrary to our present decision and
the above-cited cases may be distinguished by the wording of
1 Defendant argued before the trial court that the gun was not "readily capa-
ble" of use under ORS 166.210(3) and thus not a firearm; however, defendant has
not raised that issue on appeal.
' The original version of what is now codified as ORS 166.270 was enacted in
1925, and the acts constituting "possession" under that statute have not changed
since. See Or Laws 1925, ch 260, § 2.

Cite as 346 Or 54 (2009) 	59
the particular concealed weapons statute. 	For example,
People v. Liss, 406 Ill 419, 94 NE2d 320 (1950), involved an
Illinois statute prohibiting concealment of a weapon 'on or
about his person.' ").
In 1971, as part of a major revision of the criminal
code, the legislature defined the word "possession" for pur-
poses of both the 1971 act and also for existing offenses,
including ORS 166.270. See Or Laws 1971, ch 743, § 5 ("[T]he
provisions of this Act shall govern the construction of and
punishment for any offense defined outside this Act * * *.").
Under that definition," 'possess' means to have physical pos-
session or otherwise to exercise dominion or control over
property." ORS 161.015(9). 3 That definition of "possess," one
of the acts prohibited in ORS 166.270, codifies the concepts of
actual and constructive possession. See Fries, 344 Or at 545
(so stating). The 1971 definition also appears to be broad
enough to encompass the other acts that ORS 166.270 pro-
hibits.4 Ordinarily, one who "owns" or who has "custody" of
an object "exercises dominion and control" over it. The word
"control" is found in both the definition of "possess" in ORS
161.015(9) and in ORS 166.270 itself, and the definition of
possession in ORS 161.015(9) is consistent with this court's
opinion in Miller, which held that ORS 166.270 prohibits con-
structive as well as actual possession.
This case, however, does not require us to decide
whether the definition of "possess" in ORS 161.015(9) sub-
sumes every manifestation of the four acts listed in ORS
166.270. In this case, the parties agree that the controlling
question is whether defendant "possessed" Mealue's gun, and
they assume that ORS 161.015(9) supplies the relevant defi-
nition of that word. Specifically, the parties' debate focuses
on whether defendant constructively possessed the gun-
3 Some commentators have noted that this definition of constructive posses-
sion, common among many jurisdictions, does not refine the inquiry greatly. See
Charles H. Whitebread & Ronald Stevens, Constructive Possession in Narcotics
Cases: To Have and Have Not, 58 Va L Rev 751, 759-60 (1972).
4 It is not surprising that the enumerated methods for creating liability
resulted in some overlapping terms. See National Safe Deposit Co. v. Stead, 232 US
58, 67, 34 S Ct 209, 58 L Ed 504 (1914) ("[T]here is no word more ambiguous in its
meaning than [p]ossession. It is interchangeably used to describe actual possession
and constructive possession which often so shade into one another that it is diffi-
cult to say where one ends and the other begins.").

60 	State v. Casey
namely, whether he "exercise[d] dominion or control" over it.
See ORS 161.015(9); Fries, 344 Or at 545 (discussing statu-
tory definition of constructive possession).
At its core, constructive possession is a way to
broaden the crime of possession beyond actual physical con-
trol. See Wayne R. LaFave, 1 Substantive Criminal Law
§ 6.l(e), 433 (2d ed 2003) ("Constructive possession, which
is simply a doctrine used to broaden the application of
possession-type crimes to situations in which actual physical
control cannot be directly proved, is often described in terms
of dominion and control." (footnote omitted)); see also Charles
H. Whitebread & Ronald Stevens, Constructive Possession in
Narcotics Cases: To Have and Have Not, 58VaLRev 751, 755
(1972) (noting that constructive possession expands the scope
of possession statutes to include instances where actual pos-
session cannot be shown but where there is a strong inference
that actual possession did exist at one time). Given the
nature of constructive possession as an outgrowth of actual
possession, it follows that the closer the indicia of construc-
tive possession are to past or future actual possession, the
more likely that it is constructive possession exists.
In this case, there are four potential factual bases for
finding that defendant constructively possessed Mealue's
gun. Defendant could have constructively possessed the gun:
(1) when Mealue brought the gun into defendant's trailer;
(2) when Mealue left the gun on the counter as he and defen-
dant stepped out of the trailer to speak with the officers;
(3) when defendant went back into the trailer to retrieve the
documents and the bowl; or (4) when defendant attempted
either to block the officers from entering the trailer or to
retrieve the gun himself. We consider each possible basis for
finding constructive possession in turn.
We begin with Mealue's act of bringing the gun into
defendant's trailer. Mealue had concealed the gun on his per-
son before he entered the trailer. There is no evidence that
defendant was aware that Mealue was carrying the gun, nor
is there any evidence that Mealue brought the gun into the
trailer for defendant's use. Rather, the only evidence in the
record is that Mealue was acting unilaterally and without

Cite as 346 Or 54 (2009) 	61
defendant's knowledge. On this record, no reasonable trier of
fact could find that defendant exercised dominion or control
over the gun that Mealue had concealed on his person. Cf
State v. Downing, 185 Or 689, 695-96, 205 P2d 141 (1949)
(holding that the jury reasonably could find that the defen-
dant and another person jointly possessed a stolen watch
that defendant knew was in their shared living area and that
had been acquired through their joint efforts).
Nor is there any evidence from which a reasonable
trier of fact could find that defendant exercised dominion or
control over the gun when Mealue placed it on the counter as
defendant and he were leaving the trailer. As a general mat-
ter, guests retain dominion and control over their own prop-
erty when they visit another person's home. See Minnesota v.
Olson, 495 US 91, 99-100, 110 S Ct 1684, 109 L Ed 2d 85
(1990) ("[H]osts will more likely than not respect the privacy
interests of their guests, who are entitled to a legitimate
expectation of privacy despite the fact that they have no legal
interest in the premises."). A guest who hangs his or her hat
on the host's hat rack for the duration of a visit does not, by
that act alone, give the host dominion or control over the
guest's hat. Something more is required to permit an infer-
ence that the guest intended to cede or share control of the
guest's property with the host.
In this case, defendant was leaving the trailer when
Mealue told the officers that "he had [a] gun and it is on the
counter." Mealue then followed defendant out of the trailer to
speak with the officers. There is nothing to suggest that, in
putting his gun on the counter, Mealue acted any differently
from a guest who temporarily puts his or her hat on the host's
hat rack; that is, the evidence in the record suggests only that
Mealue put his gun aside briefly while he spoke with the
police. 	That act is not enough to suggest that Mealue
entrusted his gun to defendant, left the gun in defendant's
custody, or somehow gave defendant the right to exercise
dominion or control over it. Correspondingly, there is nothing
to suggest that defendant exercised dominion or control over
the gun when Mealue put it on the counter as defendant and
he stepped out of the trailer to speak with the officers.

62 	State v. Casey
This case differs from Miller, on which the state
relies. In Miller, the defendant and another person were driv-
ing from the defendant's home in California to Oregon, a dis-
tance of approximately 300 to 400 miles. 238 Or at 412. A
police officer stopped the car and immediately noticed a
revolver sticking out from under the front seat on the passen-
ger side. There was also a pistol under the front seat of the
car, midway between the defendant, who was driving, and
the passenger, and a third loaded weapon was in the glove
box. Also on the front seat were a stocking mask and two left-
handed rubber gloves. Finally, a third person had reported to
the police that defendant and his passenger had "roll[ed]"
him. Id. at 413.
Noting the length of time that the defendant had
been driving the car and the "obviousness of the revolver
which was sticking out from under the front seat," the court
explained that a reasonable juror could infer that the defen-
dant both was aware of all three guns and constructively pos-
sessed them. Id. at 414. This case differs from Miller in that
there is no evidence that defendant knew that Mealue either
possessed the gun or had placed it on the counter until defen-
dant had started to leave the trailer; the length of time that
Mealue left the gun on the counter was brief; and there is no
evidence, as there was in Miller, from which a reasonable
juror could infer that Mealue and defendant jointly possessed
the gun.
The trial court relied primarily on the third factual
basis in concluding that defendant constructively possessed
Mealue's gun; that is, the trial court relied on defendant's
proximity to the gun when he went back into the trailer to
retrieve the documents and the bowl of rocks in finding con-
structive possession. We reach a different conclusion. As
explained above, Mealue retained dominion and control over
the gun when he temporarily put it on the counter while he
and defendant went outside to speak with the officers. The
fact that the officers permitted defendant to reenter the
trailer for a limited purpose-to retrieve specific items-pro-
vides no basis for saying that defendant exercised dominion
and control over the gun. At most, defendant's entry into the
trailer establishes proximity between defendant and the gun
for a brief period of time and, without more, is not sufficient

Cite as 346 Or 54 (2009) 	63
to establish constructive possession. Cf State v. Weller, 263
Or 132, 133, 501 P2d 794 (1972) (evidence that the defendant
lived in a bedroom on the second floor of a house occupied by
another couple insufficient basis to find that the defendant
had the right to exercise control over growing marijuana
found in an unoccupied bedroom on the same floor); State v.
Oare, 249 Or 597, 599-600, 439 P2d 885 (1968) (holding the
"mere fact that [the guest] was present at the attempted dis-
posal of [marijuana] in someone else's home" insufficient to
find constructive possession).
Finally, when the officers told defendant that he
could not go back into the trailer to retrieve Mealue's gun,
defendant unsuccessfully tried to get to the door of the trailer
before the officers. He repeatedly told them that he did not
want them to go inside his home. A reasonable trier of fact
could draw two related but separate inferences from defen-
dant's acts. It could infer that defendant was attempting to
enter the trailer to retrieve the gun himself. Additionally, it
could find that defendant was attempting to block the officers
from entering his home. Focusing on the first inference, the
Court of Appeals reasoned 	that defendant's attempt to
retrieve the gun was sufficient to establish that he construc-
tively possessed it. Casey, 215 Or App at 81-82. However, if,
as we have explained, no reasonable trier of fact could find
that defendant constructively possessed the gun before he
attempted to go back into the house and retrieve it, then
defendant's unsuccessful attempt to retrieve the gun estab-
lishes at most attempted possession. Defendant's unsuccess-
ful attempt cannot convert his lack of possession into com-
pleted possession.
Focusing on the second inference, the Court of
Appeals reasoned, alternatively, that defendant's attempt to
prevent the officers from entering his home "was a further
exercise of control by defendant over the firearm." Id. at 82.
The Court of Appeals' alternative rationale suffers from a
similar problem as its initial rationale. If, as we have con-
cluded, defendant's ownership of his home was not sufficient
to permit an inference that defendant possessed the gun that
Mealue briefly left there, then defendant's assertion of his
right to control the officer's entry into his home does not
somehow transfer possession of Mealue's gun to defendant.

64 	State v. Casey
Nothing about the relationship between defendant and the
gun changed by virtue of defendant's assertion of that
broader right. On this record, the trial court erred in denying
defendant's motion for judgment of acquittal on the charge of
possessing a firearm.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.