State v. Gallup
Gallup
Citation
341 Or. App. 295
Court
Court of Appeals of Oregon
Decided
June 11, 2025
Jurisdiction
SA
Importance
45%
Practice Areas
Case Summary
No. 537 June 11, 2025 295 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. KIRK JOSEPH GALLUP, aka Kirk Gallup, aka Kirk J. Gallup, Defendant-Appellant. Jackson County Circuit Court 22CR28782, 22CR36383; A183016 (Control), A183018 Laura A. Cromwell, Judge. Submitted April 23, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent. Before Shorr, Presiding Judge, Powers, Judge, and Pagán, Judge. PAGÁN, J. Remanded for resentencing in Case No. 22CR28782 and Case No. 22CR36383; otherwise affirmed. 296 State v. Gallup PAGÁN, J. In this consolidated appeal, defendant appeals from two probation revocation judgments. Defendant pleaded no contest in Case Nos. 22CR28782 and 22CR36383. He was sentenced, pursuant to the parties’ stipulation, to identi- cal terms of probation, with suspended upward durational- departure sentences of imprisonment and post-prison super- vision. He was later found in violation of a probation condi- tion and was sentenced to the stipulated prison sentences, with the terms of imprisonment to be served consecutively. In his first assignment of error, defendant challenges the sufficiency of the evidence for the finding that he was in vio- lation of probation. In his second and third assignments of error, defendant challenges his sentence. We conclude that the trial court did not err in finding that defendant was in violation of probation, we accept the state’s concession that defendant’s sentences must be imposed concurrently, and we agree that defendant’s remaining challenge is moot. Accordingly, we remand for resentencing and otherwise affirm. In his first assignment of error, defendant contends that there was insufficient evidence to find that he pos- sessed prohibited items because the evidence showed only that he lived in a house in which his father kept simulated firearms and knives. We review a trial court’s decision to revoke probation for abuse of discretion. State v. Kacin, 237 Or App 66, 72-73, 240 P3d 1099 (2010). A trial court abuses its discretion if it revokes probation based on insufficient evidence. State v. Monroe, 275 Or App 563, 564, 365 P3d 140 (2015). As explained below, we conclude that the trial court did not abuse its discretion in finding that defendant possessed weapons in violation of a probation condition. The state’s motion to show cause why probation should not be revoked alleged that defendant “has possessed firearms (actual or simulated), ammunition, or weapons,” in violation of his probation. At the probation revocation hearing, defendant’s probation officer testified that, upon entering defendant’s residence for a home visit, she saw “a large knife sticking out of the floorboard of the home.” Inside the house, she observed numerous knives, simulated Nonprecedential Memo Op: 341 Or App 295 (2025) 297 weapons, and ammunition. Defendant’s mother told the pro- bation officer that defendant lives in the house by himself. Defendant told her that “his home had been broken into, a lot of things that were located in the home were his father’s. He was cleaning it up, and he just didn’t have time to do it.” Defendant’s father testified that he was in the process of moving to a new house but still kept things at the house where defendant was living, including “quite a few” guns that appear real and ammunition. He also explained that he bought a lot of knives after viewing a late-night commercial, some of which turned out to be worthless, and some of which were real. A violation of a condition of probation may be proved by a preponderance of the evidence. State v. Gonzalez, 212 Or App 1, 4-5, 157 P3d 266 (2007). Based on the evidence at the hearing, we conclude that the trial court did not abuse its discretion in finding by a preponderance of the evidence that defendant possessed weapons in violation of his pro- bation. Even if these items did not belong to defendant, it is not disputed that they were located in a house where he resides, and that he had ready access to them. That is suf- ficient to show that he “possessed firearms (actual or sim- ulated), ammunition, or weapons,” in violation of his pro- bation. See State v. O’Dell, 264 Or App 303, 308, 330 P3d 1261 (2014) (evidence sufficient to prove that the defendant constructively
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Status
Decided
Date Decided
June 11, 2025
Jurisdiction
SA
Court Type
federal
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Case Overview
Case Name: State v. Gallup
Citation: 341 Or. App. 295
Court: Court of Appeals of Oregon
Date: June 11, 2025
Jurisdiction: SA
In this nonprecedential memorandum opinion, the Oregon Court of Appeals addressed the appeal of Kirk Joseph Gallup concerning two probation revocation judgments. Gallup had pleaded no contest in two cases and was subsequently found in violation of probation conditions, leading to a consolidated appeal.
Key Legal Issues
The appeal raised several critical legal issues, including:
- Sufficiency of Evidence: Whether the evidence presented was adequate to support the probation violation finding.
- Sentencing Errors: Challenges to the imposition of consecutive sentences for a single probation violation.
- Statutory Maximum: Whether the imposed sentence exceeded statutory limits.
Court's Decision
The Court of Appeals ruled as follows:
- Affirmed the trial court's finding of a probation violation.
- Remanded for resentencing in both cases, directing that sentences be imposed concurrently rather than consecutively.
- Mooted the issue regarding the statutory maximum due to an amended judgment.
Legal Reasoning
In addressing the sufficiency of the evidence, the court reviewed the trial court's discretion in revoking probation. The court noted that a probation violation can be established by a preponderance of the evidence. Key points from the court's reasoning included:
- The probation officer observed prohibited items, including knives and simulated firearms, in Gallup's residence.
- Testimony indicated that Gallup had access to these items, which constituted a violation of his probation conditions.
In terms of sentencing, the court highlighted the following:
- Under OAR 213-012-0040(2)(a), if multiple probation terms are revoked for a single violation, the sentences must be served concurrently.
- The trial court's imposition of consecutive sentences was deemed erroneous, and the state conceded this point.
Key Holdings
- The trial court did not abuse its discretion in finding Gallup in violation of probation.
- Sentences for probation violations must be served concurrently when arising from a single violation.
- The issue regarding the statutory maximum sentence was rendered moot due to an amended judgment.
Precedents and Citations
The court referenced several important cases and statutes, including:
- State v. Kacin, 237 Or App 66 (2010) - regarding the abuse of discretion in probation revocation.
- State v. Monroe, 275 Or App 563 (2015) - on the sufficiency of evidence for probation violations.
- OAR 213-012-0040(2) - governing the imposition of sentences for probation violations.
Practical Implications
This case underscores the importance of:
- Evidence Standards: The necessity for clear evidence when alleging probation violations.
- Sentencing Guidelines: Adhering to statutory guidelines regarding concurrent versus consecutive sentencing, particularly in cases of multiple probation terms.
- Legal Representation: The role of effective legal counsel in navigating probation violations and ensuring compliance with procedural requirements.
Overall, the State v. Gallup decision serves as a critical reminder for legal practitioners regarding the nuances of probation law and the importance of adhering to established sentencing protocols.
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Case Details
Legal case information
Status
Decided
Date Decided
June 11, 2025
Jurisdiction
SA
Court Type
federal
Legal Significance
Case importance metrics
Metadata
Additional information
Quick Actions
Case management tools