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Old 03-23-2014, 02:05 PM   #1
lawofselfdefense's Avatar
Joined: Dec 2010
From: Boston, MA
Posts: 4
Shoot wife's cell phone, go to jail :-)

Well, this guy DID shoot his wife's cell phone, and he DID get convicted of second-degree criminal mischief as a result, but that's not what this case is really about.

First, a preface, since most of you won't know me, and the few that do recognize my name probably know it only from my coverage of the Zimmerman trial.

In preparation for my Law of Self Defense Seminar in Portland in May I've been reviewing Oregon case law for interesting self-defense court decisions. As I did so I figured, what the heck, I'll take the most interesting self-defense court decision from each month, summarize it, and post that summary here as a free "Oregon Self-Defense Case of the Month," and as a (hopefully interesting) learning tool for the Oregon gun owning community.

Well, as it happens, I didn't find a particularly interesting self-defense court decision for either January or February, but I did come across an interesting gun possession case from February.

Caveat: I'm a "self-defense law" guy, not a "gun law," guy, and I'm sure there are a great many people on this forum who know far more about Oregon gun law than I ever will. I claim no particular expertise in this area, but offer up this recently decided (2/20/2014) case simply for entertainment and discussion purposes.

I should also mention that a copy of this post is available on my blog. The difference between this version and that one, is that I've stripped out all the embedded hyperlinks to cited statutes, jury instructions, and court decisions. I can never remember which forums object to links back to commercial cites, so safest to just leave them out rather than risk making a forum faux pas.

OK, with that said, here's the OR Self-Defense Case of the Month for February 2014:

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

February 20, 2014, filed


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 withing 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.

Defendant’s conviction for unlawful possession of a firearm under Oregon Revised Statute (ORS) § 166.250 was affirmed.
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Old 03-24-2014, 10:04 AM   #2
sunofnun's Avatar
Joined: Jan 2009
From: s. greenlake bitch
Posts: 1,684
Interesting read...

So I'm guessing that if the argument was made for how much time Perez spent under his awning, or outside on his property; working on his truck, playing his guitar, eating lunch outside, etc etc.

It may have been perceived differently by the court?

I guess the defense strategy becomes very important in a case like this.. It seems like they almost had a great arguement?
Old 03-24-2014, 12:25 PM   #3
lawofselfdefense's Avatar
Joined: Dec 2010
From: Boston, MA
Posts: 4
Yep, that's right. Part of the problem was Perez didn't make the right argument. Oops.

--Andrew, @LawSelfDefense
Old 03-24-2014, 12:26 PM   #4
lawofselfdefense's Avatar
Joined: Dec 2010
From: Boston, MA
Posts: 4
By the way, for those who might be interested, I was recently interviewed by N24, a German television news station, on our "crazy American gun and self-defense" laws, and I just received the raw video of that interview today. The first ~6 minutes or so is up on my blog, with successive segments (there's about 30m total) to follow over the next few days.

--Andrew, @LawSelfDefense
Old 03-26-2014, 04:03 AM   #5
lawofselfdefense's Avatar
Joined: Dec 2010
From: Boston, MA
Posts: 4
FYI, I stopped at the law library yesterday and picked up the full text of State v. Wolf, 317 P.3d 377 (OR Ct. App. 2013). (It's so recent--just this past December--that it wasn't readily findable on the internet.)

If anyone would like to read the full-text--and I encourage it--and has trouble finding it elsewhere, just use the "Site Search" button at the top of my blog pages, and type in the citation (317 P.3d 377 ).

--Andrew, @LawSelfDefense
Old 03-29-2018, 09:18 AM   #6
lhecker51's Avatar
Joined: Mar 2018
From: Federal Way, WA
Posts: 2
Originally Posted by lawofselfdefense View Post
Yep, that's right. Part of the problem was Perez didn't make the right argument. Oops.

--Andrew, @LawSelfDefense
He may have had a stronger argument if he could establish that he used the vehicle as part of his residence and slept in it any time he was in the dog house after minor spats.

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