468 August 26, 2026 No. 802
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MAX MITCHELL POTHAST,
Defendant-Appellant.
Lincoln County Circuit Court
23CR56454; A185625
Amanda R. Benjamin, Judge.
Submitted April 8, 2026.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Dan Rayfield, Attorney General, Paul L. Smith, Interim
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
Cite as 352 Or App 468 (2026) 469
470 State v. Pothast
HELLMAN, J.
Defendant pleaded guilty to unlawful use of mace
(Count 1) and resisting arrest (Count 3). On Count 3, the
trial court ordered forfeiture of a firearm that defendant possessed on his person during the charged conduct. Defendant
challenges that order on appeal, arguing that the trial court
erred because (1) it improperly relied on defendant’s conduct
underlying the unlawful use of mace offense, which occurred
during a separate encounter than the resisting arrest conduct; and (2) defendant’s possession of the firearm did not
meet the statutory requirements for forfeiture under ORS
166.279(2). We conclude that the trial court based its ruling
on the fact that defendant possessed the firearm during the
resisting arrest incident, not the mace incident; and that,
under its plain text, ORS 166.279(2) required forfeiture
because defendant’s firearm was “available for use to facilitate the offense.” Accordingly, we affirm.
The relevant facts are undisputed. Defendant and
his landlord were in a protracted dispute, and the landlord
called police to defendant’s residence after defendant erected a barrier on the landlord’s property. During that encounter
with police, defendant sprayed bear spray at an officer and
ran back into his house. Later that day, when an officer tried to arrest defendant, they “end[ed] up on the ground” and
defendant “physically resisted by trying to pull his arms
away from the officer towards himself.” While defendant
was “being taken down,” he conveyed that he had a firearm
“to make sure that there is no risk, no concern, that there is going to be a safety threat.” Additional officers arrived and
were able to take defendant into custody. Officers searched
defendant and located a firearm in defendant’s waistband.
Defendant pleaded guilty to one count of unlawful
use of mace and one count of resisting arrest. On the resisting arrest charge, the state asked that defendant’s firearm
be forfeited pursuant to ORS 166.279(2), arguing that “based
on the facts of this case, the fact that he not only possessed the firearm, but was involved in pretty tumultuous behavior
with law enforcement,” forfeiture was authorized under the
statute. See ORS 166.279(2) (requiring forfeiture “at the time of sentencing for any criminal offense in which a firearm or
Cite as 352 Or App 468 (2026) 471
other deadly weapon was possessed, used or available for
use to facilitate the offense”). Defendant argued that forfeiture was not appropriate because his firearm “was not part
of the crime, it was a circumstance that existed at the same
time as an event occurred” and “it was in no way related to
the offense.” Defendant noted that he “was actively trying
to convey to make sure that [the firearm] was not involved
in the circumstances” and argued that “statutorily there is
[not] a basis for forfeiture.”
The trial court ordered forfeiture, finding that:
“Given that [the firearm] was [in defendant’s] possession
at the time this occurred, that is concerning to the Court,
given * * * what occurred during the situation where the
defendant sprayed the officer’s car and then the officer
directly, and had a firearm on him at the time that these
actions were taken, I do find that it’s appropriate to have
that firearm forfeited.”
After ordering forfeiture, the trial court asked
defendant if he had any questions, and he responded, “No, I
don’t. And the only time the firearm was on me was when I
left my house [after the mace incident]. Beforehand my firearm was not on me at all. I just want to make that clear.”
The trial court did not reconsider or change its forfeiture
order.
Defendant challenges the forfeiture order on appeal,
making two arguments. First, defendant argues that the
trial court “improperly relied on defendant’s conduct” underlying the unlawful use of mace offense in finding that forfeiture was appropriate. Second, defendant renews his argument that ORS 166.279(2) did not authorize forfeiture in
these circumstances.
Beginning with defendant’s first argument, he contends that the trial court’s statement that “[g]iven what
occurred during the situation where the defendant sprayed
the officer’s car and then the officer directly, and had a firearm on him at the time that these actions were taken,” indicates that the trial court believed that defendant possessed
the firearm at the time he sprayed the mace. Thus, in defendant’s view, the trial court improperly based its forfeiture
472 State v. Pothast
ruling on the mistaken belief that defendant possessed the
firearm during the separate unlawful use of mace incident.
We disagree with defendant’s reading of the record.
The only evidence presented to the trial court regarding
the firearm was that defendant possessed it at the time he
resisted arrest. Indeed, the state based its forfeiture request solely on the resisting arrest charge. Thus, when read in
context, the trial court’s statements regarding the mace
incident were not the basis for the trial court’s forfeiture ruling. Instead, those statements were the trial court’s recognition that defendant had previously been aggressive towards
officers. As such, they provided context as to why the court
was so concerned that defendant was armed at the time of
his arrest. Moreover, the trial court adhered to its forfeiture ruling after defendant reiterated that he did not have
the firearm during the mace incident. In sum, when read in
context, the phrase “these actions” in the trial court’s statement that defendant “had a firearm on him at the time these
actions were taken” refers to the actions defendant took in
resisting arrest. As a result, the trial court did not base its forfeiture ruling on an incorrect assessment of the facts, and we reject defendant’s first argument.
Turning to defendant’s second argument, in his
view, forfeiture is required under ORS 166.279(2) only when
a firearm is possessed “for the purpose of facilitating” the
crime. Defendant contends, in other words, that forfeiture
is required only when the firearm “play[s] a role in the commission of the crime,” and thus forfeiture was improper here
because “the fact that the [firearm] was in defendant’s possession when the police arrested him played no role in his
act of resisting that arrest.”
Defendant’s argument that the trial court erred
in applying the statute presents a question of statutory
construction, which we review for legal error. State ex rel
Rosenblum v. Living Essentials, LLC, 371 Or 23, 33, 529
P3d 939 (2023). In interpreting a statute, our goal is to identify the legislature’s intent by examining the disputed provision’s text and context, as well as any helpful legislative
history. State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042
(2009).
Cite as 352 Or App 468 (2026) 473
We begin with the text of the statute, which is the
“best evidence of the legislature’s intent.” State v. Edwards, 346 Or App 491, 495, 585 P3d 1123 (2026). Under ORS
166.279(2), “at the time of sentencing for any criminal
offense in which a firearm or other deadly weapon was possessed, used or available for use to facilitate the offense, the court shall declare the weapon to be contraband and order
that the weapon be forfeited.” Thus, forfeiture is required
not only when a firearm is possessed or used to facilitate
the offense, but also when it is “available for use” to facilitate the offense. And under the plain meaning of “available,” a firearm is “available for use to facilitate the offense” if it is “obtainable” or “accessible.” Webster’s Third New Int’l Dictionary at 150 (unabridged ed 2002); State v. Eggers, 372
Or 789, 798, 558 P3d 830 (2024) (in the absence of a statutory definition, we assume that the legislature intended to
give the term its “plain, natural, and ordinary meaning,”
and “[w]e often turn to dictionaries as a starting point in
our analysis” (internal quotation marks omitted)). Thus,
defendant’s construction of the statute—that it applies only
in circumstances where a firearm is possessed “for the purpose of facilitating” the crime or when the firearm “play[s]
a role in the commission of the crime”—is inconsistent with
the plain text of the statute.
Under the plain text of the statute, the trial court
did not err in ordering forfeiture. Defendant’s firearm was
in his waistband when the officer attempted to arrest him.
Defendant “physically resisted by trying to pull his arms
away from the officer towards himself.” Those facts demonstrate that the firearm was accessible to defendant while he
resisted arrest. Under ORS 167.279(2), the firearm was thus
“available for use to facilitate” his attempts to resist arrest.1
Affirmed.
1
Defendant points to evidence that he conveyed to the arresting officer that he had a firearm to avoid any safety concerns to support his argument that he did not possess the firearm in order to facilitate the crime of resisting arrest. However, as discussed above, the statute requires forfeiture not only when a firearm is possessed for the purpose of facilitating an offense or used to facilitate the offense but also when a firearm is available for use to facilitate the offense.