Jones v. Douglas County Sheriff's Office ( 2022 )

794
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted March 30, reversed and remanded for entry of judgment granting
petition July 13, 2022
Roy Gene JONES,
Petitioner-Appellant,
v.
DOUGLAS COUNTY SHERIFF’S OFFICE,
Respondent-Respondent.
Douglas County Circuit Court
21CV13032; A176115
Kathleen E. Johnson, Judge.
Shawn A. Kollie and Kollie Law Group, PC filed the brief
for appellant.
No appearance for respondent.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
JOYCE, J.
Reversed and remanded for entry of judgment granting
petition.
Nonprecedential Memo Op: 320 Or App 794 (2022) 795
JOYCE, J.
Petitioner appeals from a judgment denying his
petition under ORS 166.274 for relief from a prohibition on
possessing or purchasing firearms due to his prior felony
convictions. Viewing the record on de novo review, ORS
166.274(10)(a), we conclude that petitioner has met his bur-
den to demonstrate that he does not pose a threat to the
safety of the public or to himself, and accordingly reverse
and remand for entry of judgment granting the petition.
FACTUAL BACKGROUND
Petitioner committed numerous crimes during the
period from 1984 to 1999. In 1995, he was convicted of two
felonies, burglary and driving while suspended. As a result of
his felony convictions, petitioner was barred from possessing
and purchasing firearms. He also has multiple convictions
for nonfelony offenses, the last of which occurred in 1999.
Those convictions included driving under the influence, car-
rying a concealed weapon, driving while suspended, second-
degree theft, and failure to appear. Petitioner was also held
in contempt of court and sanctioned for violating probation.
In 2021, petitioner petitioned the trial court under
ORS 166.274 for relief from the prohibition on possessing or
purchasing firearms. That statute provides that if a peti-
tioner “seeks relief from the bar on possessing or purchas-
ing a firearm, relief shall be granted when the petitioner
demonstrates, by clear and convincing evidence, that the
petitioner does not pose a threat to the safety of the public
or the petitioner.” ORS 166.274(7).
The record before us contains petitioner’s affidavit,
his criminal history record, and five letters of support from
friends and colleagues.1 Our record on de novo review also
includes the hearing on the petition, held before the trial
court. There, the only witness was petitioner. Petitioner
described that during the time before 1999, he had been
“partying and doing drugs” and being “reckless and care-
less[,]” contributing to his criminal behavior. When asked to
1
The Douglas County Sheriff’s Office waived appearance on appeal and did
not take a position on the petition below.
796 Jones v. Douglas County Sheriff’s Office
describe the facts that gave rise to his burglary conviction,
he described breaking into a garage and testified:
“I’m so ashamed about this. I don’t know. I was just,
you know, when you get strung out on drugs and you’re not
working, you got to, you steal stuff, sell stuff, and trade
stuff for drugs. And that’s what I was doing.”
He described that his driving while suspended con-
viction happened as a result of him being “young and dumb”
and he “just didn’t learn[.]”
He could not recall if he was required to pay restitu-
tion but testified that his parole officer “let me go a year and
a half early off of parole.”
Petitioner testified that after spending time in
prison, he stopped doing drugs. He enrolled in treatment
and “did everything they wanted me to do.” Petitioner then
met his wife and they raised six children together. He went
20 years without alcohol and drugs, although he recently
had begun having “a beer or two after work every other
day[.]” He denied ever getting drunk.
At the time of the hearing, petitioner was employed
as a fiberglass technician and fusion expert and had been
for eight years. He owned his home. Petitioner described
being “so different” from the person that he once was and
that he would not “ever break the law or hurt anybody.” He
wanted to have his right to own firearms restored so that he
could go hunting with his family. He did not believe that he
would be a danger to society if he were able to purchase and
possess firearms.
As noted, petitioner also submitted five letters from
colleagues and friends. They each expressed that they
had no concerns about petitioner owning a firearm and
described him as hardworking, peaceful, respectful, and
even-tempered. For example, one letter from a coworker
described petitioner as “trustworthy, dependable, and hon-
est” and noted that he had never seen petitioner engage in
any “aggressive behavior, altered mental state, or threat
about anyone or anything.” Another letter was from a for-
mer police officer who has known petitioner since 2007. He
stated that petitioner was “peaceful and respectful[,]” and
Nonprecedential Memo Op: 320 Or App 794 (2022) 797
he had “no reservation in supporting [petitioner] in having
firearms and his use of them.”
The trial court concluded that petitioner had failed
to prove by clear and convincing evidence that he does not
pose a threat of safety to the public. The court found peti-
tioner’s testimony “heartfelt.” But given his extensive crim-
inal record, the court found that petitioner had not met
the standard. The court was particularly troubled by peti-
tioner’s testimony, which the court characterized as being
“roundabout and it was not in terms of directly addressing
the questions in detail[.]”
DISCUSSION
Our task on de novo review mirrors that of the
trial court—that is, we assess, anew, whether petitioner
proved by clear and convincing evidence that he no longer
poses a threat to the safety of the public or to himself. ORS
166.274(7). Evidence is clear and convincing if it makes the
existence of a fact “highly probable” or if it “is of extraordi-
nary persuasiveness.” State ex rel Dept. of Human Services v.
Hinds, 191 Or App 78, 84, 81 P3d 99 (2003).
Although we review de novo, “we give consider-
able weight to the findings of the trial judge who had the
opportunity to observe the witnesses and their demeanor in
evaluating the credibility of their testimony.” Fitts v. Case,
243 Or App 543, 552 n 3, 267 P3d 160 (2011). That said,
the deference that we give the trial court’s credibility find-
ings lessens when the findings turn on other factors, such
as internal consistency, logic, and corroboration. See In re
Schenck, 318 Or 402, 420-21, 870 P2d 185, cert den, 513 US
871 (1994). Here, the trial court stated that it was concerned
that some of petitioner’s testimony about his criminal con-
victions was “roundabout” and did not “directly address[ ]
the questions in detail.” To the extent that could be viewed
as a credibility finding, it is not the type of finding to which
we typically defer. Id. (the deference that we give the trial
court’s credibility findings lessens when the findings turn on
facts such as internal consistency, logic, and corroboration).
In contrast, we do give deference to the trial court’s descrip-
tion of petitioner’s testimony as being “heartfelt,” because
798 Jones v. Douglas County Sheriff’s Office
that is a finding that depended upon the trial court being
able to assess petitioner’s demeanor. Fitts, 243 Or App at552 n 3 (giving weight to trial court findings when the court
had the opportunity to observe the witnesses’ demeanor).
On the merits, we conclude that petitioner met his
burden. Petitioner’s crimes here occurred 20 years ago and
he has not had an arrest or conviction since. Petitioner fully
served his time in prison and his subsequent parole, per-
forming so well that he was released from supervision early.
He completed treatment and has refrained from drug use,
which contributed, at least in part, to his crimes. He has
recently begun having a beer or two occasionally after work,
but he does not drink to excess. Petitioner described being
“so ashamed” of his burglary conviction and believes that
he is now “so different” from the person that he once was,
testimony that the trial court described as “heartfelt.” The
five letters in support of petitioner reflect that he is honest,
hardworking, and peaceful, and none of the writers had con-
cerns about petitioner possessing firearms. Petitioner wants
to be able to possess firearms so he can hunt with his family.
To be sure, petitioner committed serious offenses.
But ORS 166.274 nonetheless provides a mechanism for
individuals who have committed serious crimes to regain
the right to purchase and possess firearms if they meet the
standard set forth in the statute. Petitioner here has.
Reversed and remanded for entry of judgment
granting petition.