State v. Anderson
State v. Anderson
Opinion of the Court
Defendant appeals his conviction for discharging a loaded firearm, specifically a “potato gun” or “potato cannon,” within the city limits of Portland.
This court reviews the denial of a motion for judgment of acquittal to determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Harris, 288 Or 703, 721, 609 P2d 798 (1980) (quoting Jackson v. Virginia, 443 US 307, 319, 99 S Ct 2781, 61 L Ed 2d 560 (1979) (emphasis in original)).
On September 11,1993, Dana Miller was in his home when he heard several “thumps” that sounded like a car backfiring. Miller went to his window and saw defendant and another man across the street, in the front yard of a neighboring house that was located approximately 30-35 yards from
Officer Hawkins responded to Miller’s call within 15 minutes. As Hawkins drove down the street, he saw defendant sitting on the porch of the house with a “potato cannon between his legs pointing skyward.” Hawkins observed defendant hand the potato gun to a woman, but did not see where the woman took the gun. Hawkins parked his car and approached defendant. Hawkins told defendant that it was illegal to discharge a potato gun within the city limits. Defendant replied “it’s legal to shoot a spud gun. I wasn’t doing nothing wrong.” Hawkins saw a bag of potatoes lying at defendant’s feet and a can labeled “Aqua Net”
At the bench trial, Hawkins testified about his experience with potato guns, stating that he had seen them in training demonstrations, had seized a number of them in his police work, and had assembled such a gun and fired it himself. Hawkins explained that a potato gun consists of two sections of PVC pipe. One section of the pipe is four inches in
“[t]o fire the cannon, you jam a piece of potato down the [barrel portion of the pipe] using a ramrod. Then, you open the hack of the potato gun, you spray in about a two second squirt of flammable aerosol such as hair spray or carburetor fluid, screw the end back on, and then ignite it. * * * When the gas is ignited, it explodes driving the projectile out of the barrel for upwards of two or three hundred yards.”
Hawkins stated that the PVC pipe plug that he had seized from defendant would fit onto a typical potato gun. Hawkins also testified that he had tested the igniter switch seized from defendant’s porch and found that it was operational.
Defendant moved for a judgment of acquittal on the ground that there was insufficient evidence that the potato gun was a “firearm” within the meaning of the city ordinance. He also argued that no one actually saw him fire the potato gun. The trial court denied the motion. Defendant assigns error to that ruling.
PCC 14.32.010 provides, in part:
“(a) As used in this Chapter, ‘firearm’ means a pistol, revolver, gun, rifle or other ordnance, including a miniature weapon, which projects a missile or shot by force of gunpowder or any other explosive, by spring or by compressed air.”4
There was evidence at trial that the potato gun fit that definition of a firearm. Hawkins testified that a potato gun fires by means of igniting explosive aerosol fumes and that, upon firing, a potato gun can project potatoes a distance of several hundred yards. Here, Miller saw defendant load the gun, heard the gun fire and saw pieces of potato in front of his home, approximately 100 feet from where defendant was seen holding the gun. Also, Hawkins saw defendant sitting on the
We turn to defendant’s argument that the trial court erred by refusing to admit into evidence defendant’s concealed weapon permit. Defendant attempted to present the Washington-issued permit, but the court refused to consider it, stating that it was ‘ ‘ [no] defense to this charge. ’ ’ Defendant contends that the language of the ordinance, which excuses a person from criminal liability for discharging a weapon within the city limits when the person possesses “a valid permit” to carry or use firearms, PCC 14.32.101(e), should be interpreted as encompassing persons with valid permits issued by other states. Defendant argues that, because he had a valid Washington concealed weapon permit, he should not have been convicted of the violation.
That argument overlooks the fact that under Washington law, defendant’s permit was not valid in Oregon. Washington law provides that concealed weapon licenses issued in that state authorize a person to carry a concealed weapon only within the state of Washington.
Affirmed.
Defendant was originally charged by citation with the misdemeanor of discharging a loaded weapon. However, the district attorney elected to treat the crime as a violation, rather than a misdemeanor. The standard of proof in a trial for a violation is to establish guilt by a preponderance of the evidence. ORS 136.750(2).
PCC 14.32.010(d) provides that
“Kit is unlawful for any person to fire or discharge a firearm within the boundaries of the ciiy.”
The ordinance is similar to ORS 166.220(l)(b), which provides that a person commits the crime of unlawful use of a weapon if such person
“[intentionally discharges a firearm * * * within the ciiy limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle without having legal authority for such discharge.”
Because Hawkins did not examine the can to determine its contents, the trial court admitted the evidence only for the limited purpose of describing what the officer saw and did not consider the testimony as evidence of a propellant.
This ordinance is similar to, although somewhat broader than, the statutory definition of a firearm. ORS 166.210(2) defines a firearm as
“a weapon, by whatever name known, which is designed to expel a projectile by the action of powder and which is readily capable of use as a weapon.”
Wash Rev Code § 9.41.070(1) (1993) provides, in part:
“The judge of a court of record, the chief of police of a municipality, or the sheriff of a county, shall within thirty days after the filing of an application of any person issue a license to such person to carry a pistol concealed on his or her person within this state for four years from the date of issue * * (Emphasis supplied.)
Although not discussed below, we may properly take judicial notice of this law for the first time on appeal. State v. Willhite, 110 Or App 567, 571 n 4, 824 P2d 419 (1992). OEC 201(f) provides that “judicial notice may be taken at any stage of the proceeding.” OEC 202(1) provides that law judicially noticeable includes:
“[t]he decisional, constitutional and public statutory law of Oregon, the United States and any state, territory or other jurisdiction of the United States.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.