Chapter 166

LAW REVIEW CITATIONS: 51 OLR 427-637 (1972); 69 OLR 169 (1990)

166.015

NOTES OF DECISIONS

Under former similar statute (ORS 166.040)

The names of co-participants were not an essential element of this offense. State v. Nussbaum, 261 Or 87, 491 P2d 1013 (1971)

In general

Where four of seven other men participated actively with defendant in fighting and the other three men stood at the scene of the fight to prevent friends of victim from coming to his aid, jury could find beyond a reasonable doubt that all seven men named in indictment participated by their deeds with defendant in tumultuous and violent conduct. State v. Chavez, 65 Or App 534, 671 P2d 708 (1983), Sup Ct review denied

Where defendant and fellow gang member beat victim and other gang members gathered around and cheered during beating, there was sufficient evidence of concerted action for jury to find defendant guilty of riot. State v. Hicks, 120 Or App 345, 852 P2d 894 (1993), Sup Ct review denied

“Grave risk of public alarm” is not unconstitutionally vague description because alarming public in general requires that alarm be objectively reasonable response to conduct. State v. Chakerian, 135 Or App 368, 900 P2d 511 (1995), aff’d 325 Or 370, 938 P2d 756 (1997)

“Participating with” other persons means engaging in common disorder, not sharing of common purpose or intent. State ex rel Juvenile Dept. v. Saechao, 167 Or App 227, 2 P3d 935 (2000), Sup Ct review denied

Whether conduct is “tumultuous and violent” depends on how conduct viewed in whole would reasonably be perceived when related to specific situation. State ex rel Juvenile Dept. v. Saechao, 167 Or App 227, 2 P3d 935 (2000), Sup Ct review denied

LAW REVIEW CITATIONS

In general

51 OLR 613-624 (1972)

166.025

NOTES OF DECISIONS

The term “unreasonable noise” is not so broad or vague that prosecution under this section violates due process of law or First Amendment rights. State v. Marker, 21 Or App 671, 536 P2d 1273 (1975)

Whether statement is “unreasonable noise” depends on whether statement is intended to be communicative or is merely guise for disturbing those present. State v. Marker, 21 Or App 671, 536 P2d 1273 (1975); State v. Atwood, 195 Or App 490, 98 P3d 751 (2004)

Phrase “hazardous or physically offensive” in this section is not unconstitutionally vague. State v. Clark, 39 Or App 63, 591 P2d 752 (1979), Sup Ct review denied, overruled on other grounds, 155 Or App 279, 963 P2d 739 (1998)

Disorderly conduct ordinance based on this section was not unconstitutionally vague. City of Cottage Grove v. Farmer, 42 Or App 21, 599 P2d 472 (1979)

Defendants who were disseminating literature to motorists on a public portion of a private road were subject to prosecution under this section. State v. Horn, 57 Or App 124, 643 P2d 1388 (1982)

“Fighting” and “violent, tumultuous or threatening behavior” describe physical acts of aggression, not speech, and in prohibiting such physical acts paragraph (1)(a) does not run afoul of Article I, section 8 of the Oregon Constitution. State v. Cantwell, 66 Or App 848, 676 P2d 353 (1984), Sup Ct review denied

Paragraph (1)(a) makes unlawful only use of physical force or physical conduct which is immediately likely to produce use of such force and which is intended to create or recklessly creates risk of public inconvenience, annoyance or alarm and, so construed, is not void for vagueness on its face. State v. Cantwell, 66 Or App 848, 676 P2d 353 (1984), Sup Ct review denied

Under this section, forbidden intent means intent to cause certain public discomfiture, whether or not defendant is successful. State v. Sargent, 74 Or App 50, 701 P2d 484 (1985)

Justifiable fighting could not, without more, provide basis for disorderly conduct conviction. State v. DeLaura, 75 Or App 655, 706 P2d 1011 (1985)

Defendants, who blocked forest road to protest logging activities and were convicted of disorderly conduct, did not show emergency necessary to support choice-of-evils defense to charge of violation of this section. State v. Hund, 76 Or App 89, 708 P2d 621 (1985), Sup Ct review denied

Offense does not require creation of actual public inconvenience, annoyance or alarm or that particular number of persons be affected. State v. Willy, 155 Or App 279, 963 P2d 739 (1998)

“Lawful order” means police officer order that is authorized by and is not contrary to substantive law. State v. Ausmus, 336 Or 493, 85 P3d 864 (2004)

Statute is unconstitutionally overbroad in punishing persons who continue to congregate after abandoning damaging or harmful activity that made order to disperse lawful. State v. Ausmus, 336 Or 493, 85 P3d 864 (2004)

Inclusion of intent as requisite mental state prevents local ordinances from imposing more restrictive prohibition against obstructing vehicular or pedestrian traffic on public way. State v. Robison, 202 Or App 237, 120 P3d 1285 (2005)

Whether speech may properly be restrained as “unreasonable noise” depends on whether restraint is applied to inhibit noncommunicative elements of activity such as time, manner or place or to stifle expression. State v. Rich, 218 Or App 642, 180 P3d 744 (2008)

ATTY. GEN. OPINIONS: Drunkenness as element of crime of disorderly conduct, breach of peace or vagrancy, (1975) Vol 37, p 647

LAW REVIEW CITATIONS: 51 OLR 613-624 (1972)

166.065

NOTES OF DECISIONS

“Course of conduct” is a pattern of conduct composed of same or similar acts repeated over a period of time, however short, which establishes a continuity of purpose in the mind of the actor. State v. Sallinger, 11 Or App 592, 504 P2d 1283 (1972)

“Offensive physical contact” includes striking, slapping, shoving, kicking, grabbing and similar acts that are an interference with the contactee, regardless of whether they produce any pain or discomfort. State v. Sallinger, 11 Or App 592, 504 P2d 1283 (1972)

Requirement that person act with specific intent to “harass, annoy or alarm” is not unconstitutionally vague. State v. Sallinger, 11 Or App 592, 504 P2d 1283 (1972)

Requirement that person subject another person to “offensive physical contact” is not unconstitutionally vague. State v. Sallinger, 11 Or App 592, 504 P2d 1283 (1972)

Prohibition against conduct constituting harassment by “telephone, mail or other form of written communication” is not unconstitutionally vague. State v. Zeit, 22 Or App 480, 539 P2d 1130 (1975)

Prohibition against conduct that “alarms or seriously annoys” another person is unconstitutionally vague. State v. Sanderson, 33 Or App 173, 575 P2d 1025 (1978)

Notwithstanding that initial stop of defendant was unlawful under ORS 131.615, such illegality did not render inadmissible defendant’s subsequent behavior, for which he was charged under this section. State v. Gaffney, 36 Or App 105, 583 P2d 582 (1978), Sup Ct review denied

Spitting on another can be offensive physical contact within meaning of this section. State v. Keller, 40 Or App 143, 594 P2d 1250 (1979)

Prohibition against communications that are “likely to cause annoyance or alarm” is unconstitutionally vague. State v. Blair, 287 Or 519, 601 P2d 766 (1979)

Publicly insulting another by abusive or obscene words or gestures in manner likely to provoke violent or disorderly response with intent to harass, annoy or alarm, violates section 8, Article I, Oregon Constitution, because it is directed to speech and is not “wholly confined within some historical exception” to that constitutional section. State v. Harrington, 67 Or App 608, 680 P2d 666 (1984), Sup Ct review denied

Proscription against “offensive physical contact” is directed toward conduct not speech and does not violate section 8, Article I, Oregon Constitution. State v. Beebe, 67 Or App 738, 680 P2d 11 (1984), Sup Ct review denied

Harassment by causing telephone to ring with no communicative purpose, is clear and unambiguous. State v. Lowery, 71 Or App 833, 693 P2d 1343 (1984)

Prohibition against telephonic or written threats, where focus is on effect not speech and effect must be objectively as well as subjectively genuine, is neither constitutionally overbroad nor vague. State v. Moyle, 299 Or 691, 705 P2d 740 (1985)

Telephonic or written threat must be genuine and pose objective risk of breach of peace and failure by defendant to act on threat may suggest it was not genuine, but failure does not compel such conclusion. State v. Mapula, 80 Or App 146, 720 P2d 1336 (1986), Sup Ct review denied

Harassment did not occur by phoning of bomb threat when recipient of threat was not actually placed in fear. State v. Wilson, 81 Or App 48, 724 P2d 840 (1986), Sup Ct review denied

Where harassment is not lesser included offense under charge of assault in fourth degree, defendant’s conviction for harassment is reversed. State v. Warren, 101 Or App 446, 790 P2d 47 (1990)

Harassment by touching sexual or intimate parts of another is not lesser included offense of sexual abuse in first degree (ORS 163.427). State v. Barnes, 209 Or App 332, 147 P3d 936 (2006), Sup Ct review denied

Prohibition of this section is facially overbroad so as to violate constitutional right of free speech. State v. Johnson, 345 Or 190, 191 P3d 665 (2008)

166.085

NOTES OF DECISIONS

Burial of corpse terminates abuse, notwithstanding that corpse was improperly buried. State v. Harelson, 147 Or App 556, 938 P2d 763 (1997), Sup Ct review denied

166.090

NOTES OF DECISIONS

From defendant’s admission that he had been calling 9-1-1 for entertainment and from evidence that first time he called, he said “Huh?” after phone was answered, trier of fact could properly infer defendant had no communicative purpose when he caused phone to ring. State v. Hibbard, 110 Or App 335, 823 P2d 989 (1991), Sup Ct review denied

This section does not, on its face, prohibit speech or prohibit effect that is caused by words, because focus is not on speech but on causing telephone of another to ring. State v. Hibbard, 110 Or App 335, 823 P2d 989 (1991), Sup Ct review denied

Victim does not “answer” telephone unless victim personally engages in process of removing receiver from hook and speaking. State v. Lopez, 151 Or App 138, 949 P2d 1237 (1997), Sup Ct review denied. But see State v. Norgard, 156 Or App 190, 967 P2d 499 (1998), Sup Ct review denied

Message conveying information about caller’s state of mind has “communicative purpose,” even though message may be abusive, unwelcome or repetitious of earlier messages. State v. Allison, 325 Or 585, 941 P2d 1017 (1997)

Where victim is subjected to message or voice of caller upon playback of message recorded on telephone answering machine, caller causes victim to “answer” telephone. State v. Norgard, 156 Or App 190, 967 P2d 499 (1998), Sup Ct review denied

166.155

NOTES OF DECISIONS

It is constitutionally permissible to punish otherwise criminal conduct more severely when it is motivated by racial, ethnic or religious hatred than when it is motivated by individual animosity. State v. Beebe, 67 Or App 738, 680 P2d 11 (1984), Sup Ct review denied

Where defendant and another were charged and jointly tried for intimidation in first degree and other person was acquitted, defendant could be convicted and sentenced only for intimidation in second degree. State v. Martin, 109 Or App 483, 818 P2d 1301 (1991)

LAW REVIEW CITATIONS: 18 WLR 197 (1982); 28 WLR 455 (1992); 71 OLR 689 (1992); 72 OLR 157 (1993)

166.165

NOTES OF DECISIONS

State need not prove that defendant was motivated solely by defendant’s perception of victim’s race, color, religion, national origin or sexual orientation because this statute creates criminal liability when unlawful motive plays any role in proscribed conduct. State v. Hendrix, 107 Or App 734, 813 P2d 1115 (1991), aff’d State v. Plowman, 314 Or 157, 838 P2d 558 (1992) and State v. Hendrix, 314 Or 170, 838 P2d 566 (1992)

This statute is not unconstitutionally vague. State v. Hendrix, 107 Or App 734, 813 P2d 1115 (1991), aff’d State v. Plowman, 314 Or 157, 838 P2d 558 (1992)

Because this section does not proscribe opinions or communications, it does not violate Oregon Constitution, Article 1, section 8. State v. Plowman, 314 Or 157, 838 P2d 558 (1992)

When defendant arrived at store with codefendants who had weapons, observed that one victim spoke little English, heard codefendant’s loud and repeated statements about victims’ race and national origin, continued to beat victims while hearing and after hearing codefendants’ statements and left with codefendants after beating, evidence established beyond reasonable doubt that defendant had specific intent required under this section. State v. Hendrix, 314 Or 170, 838 P2d 566 (1992)

LAW REVIEW CITATIONS: 18 WLR 197 (1982); 28 WLR 455 (1992); 71 OLR 689 (1992); 72 OLR 157 (1993); 29 WLR 763 (1993)

166.170

NOTES OF DECISIONS

“Ordinance” means regulation, restriction or prohibition that government entity legislatively enacts. Doe v. Medford School District 549C, 232 Or App 38, 221 P3d 787 (2009)

Statute preempts only legislative enactments of local or regional government entities. Doe v. Medford School District 549C, 232 Or App 38, 221 P3d 787 (2009)

166.173

NOTES OF DECISIONS

Exception prohibiting application of city ordinance to person licensed to carry concealed handgun does not apply to city ordinance allowing private lessee of public property to ban concealed handguns from leased property. Starrett v. City of Portland, 196 Or App 534, 102 P3d 728 (2004)

Local government may regulate possession of loaded firearms on streets and highways regardless of whether firearms are kept in location to which general public does not have access. State v. Ward, 224 Or App 421, 198 P3d 443 (2008), Sup Ct review denied

166.180

NOTES OF DECISIONS

Negligent wounding of another pursuant to this section is outside Criminal Code but clearly intends proof of culpable mental state. State v. Orth, 35 Or App 235, 581 P2d 953 (1978)

LAW REVIEW CITATIONS: 51 OLR 481, 485, 579 (1972)

166.190

NOTES OF DECISIONS

In wrongful death action, rule that violation of statute is negligence per se was not applicable where child who fatally fired weapon was under twelve years of age at time of shooting. Thomas v. Inman, 282 Or 279, 578 P2d 399 (1978)

Charging instrument alleging crime under this section need not plead lack of self defense, because use of such labels as “except” in charging statute, standing alone, does not require state to plead negation of the exception. State v. George, 72 Or App 135, 694 P2d 1011 (1985)

Where defendant purposely pointed unloaded pistol at Bureau of Indian Affairs Security Officer in violation of Oregon Statute, use of Assimilative Crimes Act was appropriate since federal statute did not punish precise acts upon which state law conviction depended and victim’s testimony that defendant pointed gun at him was sufficient evidence that defendant acted “purposely” within meaning of Oregon statute. U.S. v. Kaufman, 862 F2d 236 (9th Cir. 1988)

LAW REVIEW CITATIONS: 51 OLR 485 (1972)

166.210

NOTES OF DECISIONS

Definition of firearm “capable of being concealed upon the person” in this section does not limit same term in ORS 166.270 since such definition states that it does “apply to and include” firearms with barrels less than 12 inches long. State v. Miller, 87 Or App 439, 742 P2d 692 (1987)

Firearm is “readily capable” of use at weapon if firearm may promptly be made operational with reasonable speed. State v. Briney, 345 Or 505, 200 P3d 550 (2008)

166.220

NOTES OF DECISIONS

Evidence that defendant carried cocked, holstered pistol, that he told police he would meet force with force and firearms with firearms if police moved into building which he and others were unlawfully occupying, and that gun was later found to be loaded, was sufficient to support finding that defendant carried dangerous weapon with intent to use it. State v. Essig, 31 Or App 639, 571 P2d 170 (1977), Sup Ct review denied

Menacing is not lesser included offense of carrying dangerous weapon within intent to use. State v. Cummings, 33 Or App 265 (1978)

Officer was entitled to search wallet within purse incident to arrest for possession of dangerous weapon with intent to use it unlawfully. State v. Rose, 109 Or App 378, 819 P2d 757 (1991)

Conviction for attempted use of or intent to use dangerous or deadly weapon does not merge with conviction arising out of same conduct for intentional discharge of described weapon within city or residential area or in direction of person, building, structure or vehicle. State v. Crawford, 215 Or App 544, 171 P3d 974 (2007), Sup Ct review denied; State v. Gray, 240 Or App 599, 249 P3d 544 (2011)

Person cannot commit crime of attempt to unlawfully use weapon if person acts with reckless mental state. State v. Harris, 230 Or App 83, 213 P3d 859 (2009)

Where person causes serious physical injury to another with dangerous or deadly weapon, crime of assault in second degree does not merge with crime of unlawful use of weapon. State v. Alvarez, 240 Or App 167, 246 P3d 26 (2010), Sup Ct review denied

Attempt to use unlawfully, or carrying or possession with intent to use unlawfully, dangerous or deadly weapon is not lesser included offense of intentional discharge of described weapons within city or residential area or in direction of person, building, structure or vehicle. State v. Gray, 240 Or App 599, 249 P3d 544 (2011)

166.240

NOTES OF DECISIONS

This section is not unconstitutionally vague as construed, and prohibits the concealed carrying of nunchaku sticks. State v. Tucker, 28 Or App 29, 558 P2d 1244 (1977), Sup Ct review denied

“Sportman’s” knife with three and one-half inch blade which folded manually into handle but locked when fully open was “ordinary pocketknife” under any construction of this section. State v. Pruett, 37 Or App 183, 586 P2d 800 (1978)

Word, “ordinary” in this section modifying word, “pocketknife” was unconstitutionally vague, so statute was construed to prohibit carrying of any knife other than a pocketknife; modifying City of Portland v. Elston, 39 Or App 125, 591 P2d 406 (1979). State v. Harris 40 Or App 317, 594 P2d 1318 (1979)

Pocketknife, within meaning of this section, included a folding blade 4 and 3/4 inches in length. State v. Strong, 41 Or App 665, 598 P2d 1254 (1979)

Weapon (knife) concealed in vehicle, rather than on defendant’s person was not concealed “about his person” within meaning of this section. State v. Crumal, 54 Or App 41, 633 P2d 1313 (1981)

Because switchblade is type of pocketknife and it is not illegal under this section to carry concealed pocketknife, it cannot be illegal to carry concealed switchblade. State v. Ramer, 65 Or App 480, 671 P2d 723 (1983)

Where defendant was indicted and convicted for carrying “concealed about his person a six inch Survival Knife, not an ordinary pocketknife,” this section, as applied to facts, was not unconstitutionally vague and overbroad. State v. Witherbee, 79 Or App 36, 717 P2d 661 (1986)

In order to save this section from constitutional vagueness challenge, it must be construed to require that concealed weapon be similar to one of objects enumerated in section and designed or intended for use as weapon. State v. Boswell, 88 Or App 344, 745 P2d 436 (1987)

Knife carried openly in sheath on belt is not concealed. State v. Johnson, 96 Or App 166, 772 P2d 426 (1989)

Statute regulating only manner of possession not constitutional right to possess switchblade knife being reasonably related to public safety, does not violate Article I, section 27 of Oregon Constitution. State v. Smoot, 97 Or App 255, 775 P2d 344 (1989)

This section was amended in 1985 to exclude reference to carrying a concealed knife in absence of any intended unlawful use against person. City of Portland v. Lodi, 308 Or 468, 782 P2d 415 (1989)

Defendant did not violate this section in carrying switchblade knife while handcuffed and removed from home by officers executing arrest warrant. State v. Stevens, 113 Or App 429, 833 P2d 318 (1992)

Knife is “dirk” or “dagger” or similar instrument only if designed specifically for stabbing. State v. McJunkins, 171 Or App 575, 15 P3d 1010 (2000)

Weapon is concealed if not readily identifiable as weapon or if person attempts to obscure fact person is carrying weapon. State v. Turner, 221 Or App 621, 191 P3d 697 (2008)

“Instrument” means any item designed and intended to inflict injury on person or property of another. State v. Ruff, 229 Or App 98, 211 P3d 277 (2009), Sup Ct review denied

166.250

NOTES OF DECISIONS

An indictment need not allege that a defendant did not have a license to carry a firearm. State v. McIntire, 22 Or App 611, 540 P2d 399 (1975)

Although it is not unlawful for person to carry firearm openly in belt holster while riding in automobile, other evidence of concealment existed from which finder of fact could have found defendant guilty of violating this section. State v. Fisher, 100 Or App 149, 785 P2d 369 (1990), Sup Ct review denied

Police officer’s use of flashlight to observe defendant in course of legitimate stop for traffic infraction was not search. State v. Evans, 101 Or App 340, 790 P2d 1177 (1990)

“Upon the person” includes bag and its contents while defendant held bag. State v. Anfield, 313 Or 554, 836 P2d 1337 (1992); State v. Finlay, 179 Or App 599, 42 P3d 326 (2002), Sup Ct review denied

Possession by minor was for lawful purpose where minor held reasonable belief possession was necessary for defense against unlawful physical force. State ex rel Juv. Dept. v. Poston, 127 Or App 538, 873 P2d 429 (1994)

State must prove as element of offense that defendant lacks license to carry firearm. State v. Brust, 158 Or App 455, 974 P2d 734 (1999), Sup Ct review denied

Constructive possession of handgun is irrelevant where defendant lacks control of, or direction over, vehicle in which handgun is concealed. State v. Williams, 161 Or App 111, 984 P2d 312 (1999)

Exception provided for possession of concealed weapon at place of business is available only to person having ownership interest in business. State v. Perry, 165 Or App 342, 996 P2d 995 (2000), aff’d 336 Or 49, 77 P3d 313 (2003)

Indictment alleging that defendant possessed handgun “unlawfully” was sufficient to allege that defendant lacked concealed handgun license. State v. Crampton, 176 Or App 62, 31 P3d 430 (2001)

Accessibility of firearm carried in bag, briefcase or suitcase is irrelevant to determination that firearm was carried upon person. State v. Finlay, 179 Or App 599, 42 P3d 326 (2002), Sup Ct review denied

For person to unlawfully possess firearm, person must know that object being carried has nature or characteristics of firearm. State v. Schodrow, 187 Or App 224, 66 P3d 547 (2003)

“Place of residence” refers to where person actually lives, not to legal residence. State v. Leslie, 204 Or App 715, 132 P3d 37 (2006), Sup Ct review denied

“Place of residence” does not have to be fixed and permanent structure. State v. Leslie, 204 Or App 715, 132 P3d 37 (2006), Sup Ct review denied

Person violates prohibition against carrying concealed firearm only if firearm is operational, or can promptly be made operational, at time person allegedly carries firearm concealed. State v. Briney, 345 Or 505, 200 P3d 550 (2008)

LAW REVIEW CITATIONS: 26 WLR 571 (1990)

166.260

NOTES OF DECISIONS

Defense for member traveling to or from target range did not apply where defendant had intended, but failed, to go to range. State v. Honzel, 177 Or App 35, 33 P3d 346 (2001)

ATTY. GEN. OPINIONS: Applicability of exemption to members of clubs enrolled in United States government marksmanship program, (1984) Vol. 44, p 350

166.270 to 166.274

LAW REVIEW CITATIONS: 26 WLR 566 (1990)

166.270

NOTES OF DECISIONS

In general

In prosecution under this section, testimony regarding value of items stolen from defendant’s house was permissible to show that defendant may have had a different motive for carrying gun than his alleged fear of another individual, namely, the motive to protect large amounts of cash and other valuable assets in his possession. State v. Jackson, 33 Or App 139, 575 P2d 1002 (1978), Sup Ct review denied

Where penitentiary inmate living at work release center did not come into possession of weapons until after leaving center, his conviction for committed felon in possession of weapon under ORS 166.275 was reduced to ex-convict in possession of firearm under this section. State v. Larsen, 44 Or App 643, 606 P2d 1159 (1980), Sup Ct review denied

Where defendant was convicted of violating this section and sentenced to maximum one year term of imprisonment, he had not been accorded misdemeanor treatment under ORS 161.585. State ex rel Redden v. Davis, 288 Or 283, 604 P2d 879 (1980)

Definition of firearm “capable of being concealed upon the person” in ORS 166.210 does not limit same term in this section since such definition states that it does “apply to and include” firearms with barrels less than 12 inches long. State v. Miller, 87 Or App 439, 742 P2d 692 (1987)

On remand, court did not err in denying defendant’s motion for judgment of acquittal on ex-convict in possession of weapon charge because fact that he had been sentenced to one year in county jail on underlying felony did not make it misdemeanor under this section. State v. Aldrich, 92 Or App 70, 757 P2d 440 (1988)

Trial court properly imposed minimum term sentence under ORS 161.610 based upon finding that defendant had threatened use of firearm while committing felony of being ex-convict in possession of firearm under this section. State v. Gilbert, 99 Or App 116, 781 P2d 389 (1989)

For purposes of this section, “convicted of a felony” means not only determination of guilt but also entry of judgment of conviction. State v. Dintelman, 112 Or App 350, 829 P2d 719 (1992)

Application of 1990 statutory amendment to felons convicted of crimes prior to amendment does not violate ex post factoprovision of U.S. Constitution. U.S. v. Huss, 7 F3d 1444 (9th Cir. 1993)

Voiding of felony conviction removes firearm disability prospectively, but does not legalize possession of firearm during period disability was in place. Bailey v. Lampert, 203 Or App 45, 125 P3d 771 (2005), aff’d 342 Or 321, 153 P3d 95 (2007)

Ex-convict

Notwithstanding that suspended sentence resulting from defendant’s 1970 conviction of felony had become misdemeanor by virtue of defendant’s successful completion of probation, prior conviction was “conviction of a felony” for purposes of this section. State v. Pritchard, 31 Or App 53, 569 P2d 690 (1977), Sup Ct review denied

Definition of “firearm” in ORS 164.055 (theft in first degree) is applicable under this section inasmuch as both crimes have closely related policy foundation, i.e., to deter obtaining of guns by those most likely to use them criminally. State v. Hash, 34 Or App 281, 578 P2d 482 (1978), Sup Ct review denied

State was required only to prove possession of concealable firearm and that defendant knowingly had possession. State v. Hash, 34 Or App 281, 578 P2d 482 (1978), Sup Ct review denied

Evidence of defendant’s prior felony conviction was properly admitted at trial for possession of firearm by ex-convict since prior conviction was not reduced to misdemeanor at time of judgment by sentence imposed. State v. Erb, 101 Or App 444, 790 P2d 1211 (1990)

Restriction on possession of firearms by felons does not violate right to bear arms granted by section 27, Article I of Oregon Constitution. State v. Hirsch, 177 Or App 441, 34 P3d 1209 (2001), aff’d 338 Or 622, 114 P3d 1104 (2005)

Provision that person has been convicted of felony if offense was felony at time of conviction and court did not declare conviction to be misdemeanor at time of judgment supersedes ORS 161.585 provision that felony subject to that section is automatically reduced to misdemeanor at sentencing if court imposes only fine. Koennecke v. Lampert, 198 Or App 444, 108 P3d 653 (2005), Sup Ct review denied

Person’s status as felon is material element of crime for which culpable mental state is necessary to establish that person committed crime. State v. Rainoldi, 236 Or App 129, 235 P3d 710 (2010), Sup Ct review allowed

Possession

For purposes of possession requirement it is sufficient that defendant have constructive possession and immediate access to weapon. State v. Kelley, 12 Or App 496, 507 P2d 837 (1973); United States v. Rousseau, 257 F3d 925 (9th Cir. 2001)

Possession of firearm may be established from evidence it was at premises jointly occupied by defendant. State v. Strong, 41 Or App 665, 598 P2d 1254 (1979)

Enhanced sentence authorized and imposed pursuant to ORS 161.610, following conviction under this section, did not offend vindictive justice principles of Oregon Constitution Article I, Section 15. State v. Lippert, 53 Or App 358, 632 P2d 28 (1981), Sup Ct review denied

Venue on charge of possession of restricted weapon was proper in Multnomah County, where defendant had been taken after being picked up by police in Clackamas County, because, although in custody, defendant exercised control of weapon until it was taken from him in Multnomah County. State v. Guest, 103 Or App 594, 798 P2d 708 (1990), Sup Ct review denied

Indictment alleging that defendant possessed pistol sufficiently alleged that defendant possessed firearm capable of being concealed. State v. Wolfs, 119 Or App 262, 850 P2d 1139 (1993), Sup Ct review denied

COMPLETED CITATIONS: State v. Miller, 5 Or App 501, 484 P2d 1132 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 11 WLJ 296 (1975)

166.272

NOTES OF DECISIONS

Nonregistration of weapon is element of crime to be affirmatively proven by state. State v. Vasquez-Rubio, 134 Or App 646, 897 P2d 324 (1995), aff’d 323 Or 275, 917 P2d 494 (1996)

166.275

NOTES OF DECISIONS

Where penitentiary inmate, living at work release center, did not come into possession of weapons until after leaving center, his conviction for committed felon in possession of weapon under this section was reduced to ex-convict in possession of firearm under ORS 166.270. State v. Larsen, 44 Or App 643, 606 P2d 1159 (1980), Sup Ct review denied

Although this section is arguably “outside the Oregon Criminal Code,” it does not “clearly indicate” that legislature intended to create offense without any culpable mental element, and thus this section is not exception, under ORS 161.105, to general requirement of culpable mental state. State v. Wolfe, 288 Or 521, 605 P2d 1185 (1980)

Defendant on temporary leave from the penitentiary who, while living in a private residence was found to be in possession of a sawed-off shotgun, had not committed the offense described in this section. State v. Hancock, 60 Or App 425, 653 P2d 1304 (1982)

Person is “committed” to institution if placed into charge or keeping of institution by any authorized entity. State v. Hamilton, 186 Or App 729, 64 P3d 1215 (2003)

166.280

NOTE: Repealed as of January 1, 2002; but see sec. 55, c. 665, Oregon Laws 2001

NOTES OF DECISIONS

No presumption exists that any gun defendant owns was used during defendant’s commission of controlled substance related crimes. State v. Berg, 122 Or App 573, 857 P2d 909 (1993)

166.290

NOTE: Repealed January 1, 1990; ORS 166.291 enacted in lieu

See annotations under ORS 166.291.

166.291 to 166.295

NOTES OF DECISIONS

Concealed handgun licensing statutes do not affirmatively authorize licensee to possess handgun. Willis v. Winters, 235 Or App 615, 234 P3d 141 (2010), aff’d 350 Or 299, 253 P3d 1058 (2011)

Concealed handgun licensing statutes exempt licensee from state criminal liability for possession of concealed handgun. Willis v. Winters, 235 Or App 615, 234 P3d 141 (2010), aff’d 350 Or 299, 253 P3d 1058 (2011)

Issuance of concealed handgun permit to medical marijuana user does not conflict with federal law prohibiting user of controlled substances from possessing firearm. Willis v. Winters, 235 Or App 615, 234 P3d 141 (2010), aff’d 350 Or 299, 253 P3d 1058 (2011)

166.291

See also annotations under ORS 166.290 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 166.290)

This section cannot be construed to require sheriff to issue multiple weapons licenses. Heinzel v. Shipman, 85 Or App 207, 736 P2d 195 (1987), Sup Ct review denied

In general

Sheriff may require applicant to provide information additional to that expressly required by statute, including model form, to extent additional information substantially and significantly helps sheriff to conduct mandatory investigation of applicant. Langlotz v. Noelle, 179 Or App 317, 39 P3d 271 (2002), Sup Ct review denied

ATTY. GEN. OPINIONS

Under former similar statute (ORS 166.290)

Duty of sheriff to issue licenses, (1984) Vol. 44, p 350; constitutionality of “good moral character” and “good cause exists” as used in this section, (1984) Vol. 44, p 350

LAW REVIEW CITATIONS

In general

26 WLR 566, 576 (1990)

166.293

NOTES OF DECISIONS

Single incident is insufficient to constitute “pattern” of behavior or show participation in “incidents” of unlawful violence or threats of unlawful violence. Rossi v. Jackson, 183 Or App 235, 51 P3d 674 (2002)

166.382

NOTES OF DECISIONS

Where pyrotechnic device was modified to be capable of exploding, pyrotechnic device ceased to qualify for exception from definition of “destructive device.” State ex rel Juvenile Dept. v. Garrett, 193 Or App 629, 91 P3d 830 (2004)

Possession of destructive device and manufacture of destructive device (ORS 166.384) require proof of different elements, precluding merger of offenses. State v. Luers, 211 Or App 34, 153 P3d 688 (2007), modified 213 Or App 389, 160 P3d 1013 (2007)

166.384

NOTES OF DECISIONS

Bomb is “destructive device” regardless of magnitude of destructive capacity. State ex rel Juvenile Dept. v. Garrett, 193 Or App 629, 91 P3d 830 (2004)

Possession of destructive device (ORS 166.382) and manufacture of destructive device require proof of different elements, precluding merger of offenses. State v. Luers, 211 Or App 34, 153 P3d 688 (2007), modified 213 Or App 389, 160 P3d 1013 (2007)

166.410

LAW REVIEW CITATIONS: 26 WLR 566 (1990)

166.429

LAW REVIEW CITATIONS: 26 WLR 566 (1990)

166.470

NOTES OF DECISIONS

Provision of this section prohibiting sale or transfer of concealable firearm between nonlicensed persons when purchaser is “not personally known” to vendor was not, as section was interpreted, unconstitutionally vague. State v. Vasey, 80 Or App 765, 723 P2d 1068 (1986), Sup Ct review denied

LAW REVIEW CITATIONS: 26 WLR 566 (1990)

166.490

LAW REVIEW CITATIONS: 26 WLR 566 (1990)

166.630

LAW REVIEW CITATIONS: 51 OLR 484 (1972)

166.660

LAW REVIEW CITATIONS: 20 WLR 335 (1984)

166.663

NOTES OF DECISIONS

Conduct prohibited is not protected under right to bear arms. State v. Warden, 136 Or App 268, 901 P2d 900 (1995)

166.715 to 166.735

NOTES OF DECISIONS

RICO statutes are not indefinite or vague. State v. Romig, 73 Or App 780, 700 P2d 293 (1985), Sup Ct review denied

Oregon RICO statutes should be interpreted consistently with federal RICO statute, on which Oregon statute is based. Ahern v. Gaussoin, 611 F Supp 1465 (1985)

Oregon RICO statute would be interpreted in same manner as parallel. Schnitzer v. Oppenheimer and Co., Inc., 633 F Supp 92 (1985)

Plaintiffs’ assertions that defendant conducted a pattern of racketeering activity that included numerous instances of mail, wire and securities fraud was sufficient to state a claim under RICO. Securities Investor Protection Corp. v. Poirier, 653 F Supp 63 (1986)

These sections allow multiple convictions and consecutive sentences for racketeering and predicate offenses. State v. Blossom, 88 Or App 75, 744 P2d 281 (1987), Sup Ct review denied

Because Oregon statute was modeled after federal statutes, 18 U.S.C. 1961 to 1968, federal cases interpreting federal statute are persuasive in interpreting intent of Oregon legislature. State v. Blossom, 88 Or App 75, 744 P2d 281 (1987), Sup Ct review denied

Investment companies’ failure to adequately supervise their officer or agent could impose liability for secondary violations of securities laws. Pincetich v. Jeanfreau, 699 F Supp 1469 (D. Or. 1988)

LAW REVIEW CITATIONS: 18 WLR 1 (1982)

166.715

NOTES OF DECISIONS

Where defendant directed group of young men from broken families over four-year period to commit 28 different crimes, planned crimes, instructed them on how to commit them and provided men with means for commission, jury was entitled to infer that defendant functioned as an “enterprise.” State v. Cheek, 100 Or App 501, 786 P2d 1305 (1990), Sup Ct review denied

Plaintiff need not establish conviction of crime for predicate criminal conduct in order to allege “racketeering activity” under this section. Computer Concepts, Inc. v. Brandt, 310 Or 706, 801 P2d 800 (1990), Sup Ct review denied

“Enterprise” refers generally to vehicle for committing unlawful pattern of racketeering activity. Penuel v. Titan/Value Equities Group, Inc., 127 Or App 195, 872 P2d 28 (1994), Sup Ct review denied

“Isolated incidents” refers to relationship among predicate acts, including relationship to same enterprise, not to temporal occurrence. Penuel v. Titan/Value Equities Group, Inc., 127 Or App 195, 872 P2d 28 (1994), Sup Ct review denied

Securities law liability based solely on status under ORS 59.115 as control person does not constitute criminal conduct that can serve as predicate offense for Oregon Racketeer Influenced and Corrupt Organization Act liability. Computer Concepts, Inc. v. Brandt, 137 Or App 572, 905 P2d 1177 (1995)

Reference to federal statute defining racketeering activity refers to version of federal statute existing at time this section was adopted and does not include subsequent amendments to federal statute. State v. Charlesworth/Parks, 151 Or App 100, 951 P2d 153 (1997), Sup Ct review denied

Prohibition in ORS 419A.190 against adult court action “based on” or “arising out of” juvenile offense bars use of offense as incident of racketeering activity. State v. Harris, 157 Or App 119, 967 P2d 909 (1998)

Where indictment for racketeering states particular circumstances of enterprise and of each predicate offense, statutory wording is sufficient statement of nexus between predicate offenses. State v. Fair, 326 Or 485, 953 P2d 383 (1998)

Under pre-1997 version of statute, prosecutor knowledge of racketeering pattern at time of prosecution for second offense would bar subsequent Oregon Racketeer Influenced and Corrupt Organization Act charge based on that offense. State v. Lyons, 161 Or App 355, 985 P2d 204 (1999)

166.720

NOTES OF DECISIONS

To withstand demurrer on ground of lack of specificity, indictment under RICO Act must particularly describe underlying predicate offenses. State v. Kincaid, 78 Or App 23, 714 P2d 624 (1986)

Conviction for racketeering and convictions for predicate offenses do not merge even though based on same conduct. State v. Blossom, 88 Or App 75, 744 P2d 281 (1987), Sup Ct review denied; State v. Wallock/Hara, 110 Or App 109, 821 P2d 435 (1991), Sup Ct review denied; State v. Gleason, 141 Or App 485, 919 P2d 1184 (1996), Sup Ct review denied

Where alleged predicate acts of mail and wire fraud did not satisfy “pattern of racketeering activity” requirement for federal action under Racketeer Influenced and Corrupt Organizations Act (RICO), defendants’ motions for summary judgment were granted and pendant state claims dismissed. Casablanca Productions v. Pace Intern. Research, 697 F Supp 1563 (D. Or. 1988)

To show individual is “enterprise,” more evidence is required than merely of individual committing multiple crimes with others and some connection between individual and organization must be contemplated. State v. Cheek, 100 Or App 501, 786 P2d 1305 (1990), Sup Ct review denied

Plaintiff is not required to establish “continuity,” of predicate acts over extended period or threat of future racketeering activity, in proceeding under this section. Computer Concepts, Inc. v. Brandt, 310 Or 706, 801 P2d 800 (1990)

To establish ORICO claim, plaintiff must allege and prove that plaintiff was injured by defendant’s use or investment of income derived from racketeering, rather than predicate acts of racketeering. Beckett v. Computer Career Institute, Inc., 120 Or App 143, 852 P2d 840 (1993)

Stockholder lacks standing to assert claims for harm derivative of harm to corporation. Loewen v. Galligan, 130 Or App 222, 882 P2d 104 (1994)

Exclusive administrative remedy to resolve disputes over amount of submitted billings did not preclude claim alleging that submitted billings were pattern of fraudulent behavior. SAIF v. Anderson/DeShaw, 321 Or 139, 894 P2d 1152 (1995)

Entity can be “enterprise” without sharing common purpose with defendant of engaging in criminal activity. State v. Gleason, 141 Or App 485, 919 P2d 1184 (1996), Sup Ct review denied

Terms “associated with” and “participate” are not unconstitutionally vague given context provided by other statutory terms. State v. Harris, 159 Or App 553, 980 P2d 1132 (1999), Sup Ct review denied

166.725

NOTES OF DECISIONS

Reference to “rights of innocent persons” does not relate to victims of racketeering, but to persons having interest in assets obtained through or used in racketeering and who were not participants in illegal actions. State ex rel Reid v. Frohnmayer, 93 Or App 444, 763 P2d 733 (1988)

Injured persons’ “superior” right or claim to forfeited property or proceeds does not require that Attorney General give injured persons preference over recovery of state costs when distributing proceeds from state’s ORICO action. State ex rel Reid v. Frohnmayer, 93 Or App 444, 763 P2d 733 (1988)

Where investors in limited partnership interests brought federal securities suit against investment counselor and companies for which he was an officer or agent under federal and Oregon Racketeer Influenced and Corrupt Organizations (RICO) statutes and investment companies’ and its employees alleged acts of securities violation did not meet pattern of racketeering activity required under RICO statutes, claims were dismissed. Pincetich v. Jeanfreau, 699 F Supp 1469 (D. Or. 1988)

Where plaintiffs made no allegations about when or whether they participated in gambling activities of defendant, and refused to plead further, plaintiffs’ complaints did not allege facts to show personal damage caused by defendant’s illegal activity as required by paragraph (7)(a) of this section and thus complaints failed to claim. Riddle v. Eugene Lodge No. 357, 95 Or App 206, 768 P2d 917 (1989)

Damages are suffered “by reason of” violation of ORS 166.720 only if loss was proximately caused by violation. Ainslie v. First Interstate Bank, 148 Or App 162, 939 P2d 125 (1997)

1995 amendments requiring criminal conviction prior to bringing of civil recovery action do not apply to causes of action accruing prior to effective date of 1995 amendments. Black v. Arizala, 182 Or App 16, 48 P3d 843 (2002), aff’d 337 Or 250, 95 P3d 1109 (2004)

LAW REVIEW CITATIONS: 69 OLR 169 (1990)