STATE v. MULLIN IV (2024)

This criminal case presents the same issue that we resolved today in State v. Eggers, 372 Or. 789, ––– P.3d –––– (2024), involving whether the misdemeanor crime of harassment that involves subjecting another person to offensive physical contact, ORS 166.065(1)(a)(A), constitutes a “qualifying misdemeanor” under the unlawful possession of a firearm statute, ORS 166.255. The Court of Appeals in this case concluded that the trial court had erred in imposing the firearms prohibition for defendant's harassment conviction, citing its own decision in Eggers that had concluded that harassment was not a “qualifying misdemeanor.” State v. Mullin, 327 Or App 319, 320-21, 2023 WL 4760809 (2023) (nonprecedential memorandum opinion) (citing State v. Eggers, 326 Or App 337, 344, 532 P.3d 518 (2023)). Today, however, we reversed the Court of Appeals decision in Eggers, concluding instead that harassment is a qualifying misdemeanor under ORS 166.255. Eggers, 372 Or. at 808, ––– P.3d ––––. We therefore vacate the decision of the Court of Appeals in this case, in part, and remand to that court for further consideration.¹

The decision of the Court of Appeals is affirmed in part and vacated in part, and the case is remanded to the Court of Appeals for further consideration in light of State v. Eggers, 372 Or 789, ––– P.3d –––– (2024).

FOOTNOTES

1.   Defendant raised an additional assignment of error in the Court of Appeals that is not at issue before us on review. In the Court of Appeals, defendant argued that his conviction for menacing under ORS 163.190 was not a “qualifying misdemeanor” under ORS 166.255. State v. Mullin, 327 Or App 319, 320, 2023 WL 4760809 (2023) (nonprecedential memorandum opinion). The state conceded that menacing was not a qualifying misdemeanor, and the Court of Appeals accepted that concession. Id. In the state's petition for review before this court, the state did not challenge that holding. Accordingly, we affirm that part of the Court of Appeals decision.

PER CURIAM