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FILED: October 05, 2011 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JERAY ODELL BELL, Defendant-Appellant. Multnomah County Circuit Court 090732806 A144664 Youlee Y. You, Judge. Submitted on August 02, 2011. Peter Gartlan, Chief Defender, and David C. Degner, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent. Before Brewer, Chief Judge, and Edmonds, Senior Judge. EDMONDS, S. J. Affirmed.

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EDMONDS, S. J. Defendant appeals three convictions for felon in possession of a firearm under ORS 166.270. We affirm for the reasons explained below. Defendant's convictions resulted from a search by police of his residence during which three firearms were discovered in separate places. Defendant stated to the police that he had acquired each firearm from a different person. At trial, he stipulated that he had a recent felony conviction that disqualifies him from legally possessing a firearm. After he was found guilty, defendant argued that the guilty verdicts should merge into one conviction based on our holding in State v. Mac Donald, 232 Or App 431, 222 P3d 718 (2009), and ORS 161.067(3).1 The trial court rejected defendant's argument, ruling that there was evidence of a sufficient pause in defendant's criminal conduct to afford him an opportunity to renounce his criminal intent as to the possession of each firearm. On appeal, defendant renews his argument that the trial court erred when it failed to merge the guilty verdicts into one conviction. According to defendant, the issue is governed by ORS 161.067(3) and the above circumstances can only give rise to a single conviction under that statute, because the record before the trial court is devoid of any evidence that he "possessed one firearm and then the other two at different times, [or]
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In Mac Donald, the defendant was convicted of five counts of identity theft arising from his possession of a wallet that contained various forms of a single victim's personal identification. The state conceded that the convictions should have been merged into one conviction under ORS 161.067(3), and we accepted that concession in light of our holding in State v. Merrick, 224 Or App 471, 472-73, 197 P3d 624 (2008).

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that [he] 'paused' after possessing one firearm and later, after a sufficient time to renounce that crime, possessed a second firearm and then again after sufficient time, possessed the third." The state initially responds that ORS 161.067(3) is inapplicable because the statute does not contemplate a "personal" victim. Relying on our holding in State v. Ott, 96 Or App 511, 514, 773 P2d 19, rev den, 308 Or 382 (1989), the state contends that ORS 161.067(3) is only applicable when repeated offenses are committed against personal victims and, therefore, by default, there is no merger required by ORS 161.067(3) or by any other statute. Alternatively, the state argues that, if ORS 161.067(3) governs the issue, the requirements of the statute are satisfied because each possession of a firearm was discrete in nature. Defendant counters that Ott is distinguishable on its facts. Alternatively, defendant contends that Ott was erroneously decided because it relied on a statutory definition of the word "victim" in ORS 131.007, which does not expressly apply to ORS 161.067(3). Regardless, defendant ultimately contends that the holding in Ott was implicitly overruled by the Supreme Court's holding in State v. White, 346 Or 275, 211 P3d 248 (2009). Our analysis, in light of the parties' arguments, begins with the text of ORS 161.067(3). It provides, in part: "When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, 2

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except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent." We consider first whether the disposition of this case is controlled by our holding in Ott. In Ott, we decided whether former ORS 161.062 (1989), repealed by Or Laws 1999, ch 136,

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