by Mark Wilson
The Oregon Court of Appeals held that an unloaded firearm in a zipped carry case is not a “deadly weapon” for purposes of Oregon’s burglary in the first-degree statute.
Michael Norwood was charged with burglary in the first degree, among other offenses. The burglary charge alleged that Norwood entered or remained in a dwelling “while armed with a deadly weapon.”
During a bench trial, the prosecution introduced evidence that Norwood entered an unoccupied dwelling and stole four of the victim’s 14 firearms, including a Smith and Wesson AR-15. The victim testified that the AR-15 was fully functional but unloaded and inside a closed, zippered, “carry bag.” Norwood also stole ammunition for the weapon, which was stored in a separate bag.
In closing argument, the prosecution argued that the “armed with a deadly weapon” element of burglary was satisfied because Norwood had stolen the victim’s firearms and ammunition. Defense counsel did not move for judgment of acquittal or argue during closing argument that the evidence of deadly weapon possession was insufficient. The trial court ultimately found Norwood guilty and sentenced him to 144 months in prison and a 36-month, post-prison, supervision term.
Norwood filed a petition for post-conviction relief, alleging that trial counsel was ineffective for failing to move for judgment of acquittal or otherwise challenging the sufficiency of the evidence, based on the fact the gun was unloaded and its ammunition was in a separate bag. The post-conviction court denied relief, concluding that a motion for judgment of acquittal challenging the sufficiency of the evidence on the deadly weapon allegation would have failed, but conceded that this was an issue of first impression.
The Oregon Court of Appeals reversed, holding that a deadly weapon is one that is presently capable of causing death or serious physical injury, but “a fully operational firearm, when carried unloaded in a closed case, along with ammunition in a separate bag,” is not“presently” capable of causing death or serious physical injury. “The words ‘presently capable’ were intended to describe firearms loaded with a round in the firing position and those with ‘the same present capability’ of being fired,” the Court concluded.
With that definition in mind, the Court then held that “a lawyer exercising reasonable professional skill and judgment would have challenged the evidence as insufficient to show that petitioner possessed a deadly weapon during his commission of the burglary.”
Although the issue was “an open question” at the time of Norwood’s trial, the Court noted that the question had been identified in several of its opinions. “Given the state of law and the evidence presented in petitioner’s burglary trial,” the Court found that “reasonably competent counsel would have...recognized the potential for the issue to be resolved favorably to petitioner, which would have had ‘obvious potential benefits’ to petitioner on the burglary charge...without any ‘negative strategic impact on the defense’ on either the burglary or the other charges that petitioner faced.” Accordingly, trial counsel was ineffective for not challenging the sufficiency of the State’s proof that Norwood was armed with a “deadly weapon.” The Court determined that Norwood was prejudiced by counsel’s failure. The Court of Appeals reversed Norwood’s sentence for first-degree burglary and remanded for resentencing. See: Norwood v. Premo, 287 Ore. App. 443 (2017).
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