State v. Cunningham

                                   333

   This is a nonprecedential memorandum opinion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 January 24; portion of judgment imposing court-appointed attorney
            fees reversed; otherwise affirmed February 23, 2023


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
              NICHOLAS G. D. CUNNINGHAM,
                    Defendant-Appellant.
               Clackamas County Circuit Court
                    20CR08869; A175918


   Thomas J. Rastetter, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Erica L. Herb, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Hellman, Judge.
   AOYAGI, P. J.
   Portion of judgment imposing court-appointed attorney
fees reversed; otherwise affirmed.
334                                    State v. Cunningham

        AOYAGI, P. J.
         Defendant was convicted of unlawful possession
of a firearm, ORS 166.250, after a handgun was found in
his vehicle. On appeal, he argues that the trial court erred
when it (1) denied his motion for judgment of acquittal, and
(2) ordered him to pay $429 in attorney fees. We conclude
that the court properly denied the motion for judgment of
acquittal, but that it erred in ordering defendant to pay
attorney fees. Accordingly, we reverse the judgment as to
attorney fees, and otherwise affirm.
         Motion for judgment of acquittal. Under ORS
166.250(1)(b), a person commits the crime of unlawful possession of a firearm if a person “knowingly … [p]ossesses
a handgun that is concealed and readily accessible to the
person within any vehicle[.]” Here, defendant was arrested
during a traffic stop and, when the police inventoried his
vehicle, they found a handgun. Before the police found the
gun, both of defendant’s passengers left the scene, defendant
stated that everything in the vehicle was his, and defendant
initially denied that there were any weapons in the vehicle
but then told an officer that there was a gun in a holster on
the right near the center console. An officer then opened the
back right passenger door, leaned into the car, and found
a holstered gun “underneath the front passenger seat.” It
had a loaded magazine and was within reach of the driver’s
seat. The exact location and appearance of the gun when the
police found it is shown in photographs in the record.
         After the close of the state’s case, defendant moved
for a judgment of acquittal, arguing that the evidence was
legally insufficient to establish that the gun was concealed
or, alternatively, that defendant knew that it was concealed.
See State v. Harrison, 

, 

 (2019)
(regarding when a gun is “concealed”). The trial court denied
the motion. Having reviewed the record, we conclude that
the court did not err in doing so. See State v. Cervantes, 

, 

 (1994) (standard of review for a
motion for judgment of acquittal). Viewed in the light most
favorable to the state, and allowing for reasonable inferences, the evidence was sufficient to create a triable issue;
that is, a rational factfinder could find on this record that
Nonprecedential Memo Op: 

 (2023)                               335

the gun was concealed and that defendant knew that it was
concealed. We therefore reject the first assignment of error.
         Attorney fees. In the judgment, the trial court
ordered defendant to pay $429 in attorney fees for his
court-appointed attorney, under authority of ORS 151.505.
Defendant contends that it was plain error for the court to
do so, because the court did not consider his ability to pay
and there is no evidence of ability to pay.1 See ORS 151.505(3)
(allowing provision only if “the person is or may be able to
pay”). The state concedes the error. We accept the concession
and exercise our discretion to correct the plain error. See
State v. Walker, 

, 

 (2015) (the
erroneous imposition of $400 for court-appointed attorney
fees was a substantial amount justifying the exercise of discretion to correct as plain error). We therefore reverse that
portion of the judgment.
         Portion of judgment imposing court-appointed attorney fees reversed; otherwise affirmed.




    1
      The claim of error is unpreserved. “Generally, an issue not preserved in
the trial court will not be considered on appeal.” State v. Wyatt, 

,

 (2000). However, we have discretion to correct a “plain” error. ORAP
5.45(1); State v. Vanornum, 

, 

 (2013) (stating requirements for “plain” error).