State v. Funrue ( 2020 )

720
Argued and submitted September 9; conviction for unlawful possession of a
firearm reversed and remanded, remanded for resentencing, otherwise affirmed
September 30, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
BRETT DANIEL FUNRUE,
Defendant-Appellant.
Deschutes County Circuit Court
18CR32039; A168801
475 P3d 940
Walter Randolph Miller, Jr., Judge.
Daniel C. Bennett, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Daniel Norris, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Conviction for unlawful possession of a firearm reversed
and remanded; remanded for resentencing; otherwise
affirmed.
Cite as 306 Or App 720 (2020) 721
PER CURIAM
Defendant appeals a judgment of conviction for
unlawful possession of a firearm based on a charge that
he carried a firearm “concealed upon [his] person,” ORS
166.250(1)(a).1 With regard to that charge, the jury was
instructed that “concealed on his person” meant that defen-
dant either carried on his person a weapon that was “not
readily identifiable as a weapon” or “attempt[ed] to obscure
the fact that he[ ] [was] carrying a weapon.” On appeal,
defendant argues that the “attempted to obscure” theory of
concealment incorrectly stated the law and allowed the jury
to find him guilty on an improper theory.
The state concedes that the instruction on an
“attempt” theory of concealment was erroneous in light of
the Supreme Court’s subsequent construction of the term
“conceal” in State v. Harrison, 365 Or 584, 590, 450 P3d 499
(2019). However, it argues that the correct remedy, in the
interest of judicial economy, is to remand for the state to
elect between a new trial on that count and entry of a judg-
ment for the lesser included offense of attempted unlawful
possession of a firearm. According to the state, “[w]ith its
verdict, the jury, at a minimum, found defendant guilty of
attempted carrying a firearm concealed on his person.”
Defendant replies that the only permissible reme-
dies are a new trial on the count or its dismissal, because
the jury was not instructed on the offense of attempt and
there is no basis on which to conclude that the jury neces-
sarily found that defendant had the requisite mental state
for an attempt offense—specifically, that defendant inten-
tionally engaged in conduct that was a substantial step
toward concealing the gun on his person. See ORS 161.405(1)
(“A person is guilty of an attempt to commit a crime when
the person intentionally engages in conduct which consti-
tutes a substantial step toward commission of the crime.”);
State v. Rapp, 306 Or App 265, 274-75, 473 P3d 1126 (2020)
(rejecting the view that the word “attempt,” when used in
its ordinary sense as opposed to the context of the inchoate
1
Defendant was convicted of other offenses as well, but they are not at issue
on appeal.
722 State v. Funrue
offense of attempt, necessarily implies an “intentional” men-
tal state on the part of the actor).
We agree with and accept the state’s concession
regarding the instructional error, but we disagree with the
state’s proposed disposition. Having considered the parties’
arguments, we agree with defendant that the record is insuf-
ficient to support the state’s claim that the jury necessarily
found that defendant intentionally took a substantial step
toward concealing his gun. It is therefore improper for us
to remand to permit entry of judgment on a lesser-included
offense of attempted unlawful possession of a firearm, so we
instead reverse and remand for a new trial on the charged
offense.
Conviction for unlawful possession of a firearm
reversed and remanded; remanded for resentencing; other-
wise affirmed.