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State v. Wolf

Court of Appeals of Oregon

December 26, 2013

STATE OF OREGON, Plaintiff-Respondent,
DAVID AUBREY WOLF, Defendant-Appellant.

Argued and submitted on October 16, 2013.

Grant County Circuit Court 1109268CR W. D. Cramer, Jr., Judge.

Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rebecca M. Johansen, Assistant Attorney General.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.


The statute that defines "the crime of unlawful possession of a firearm" generally prohibits, among other acts, the carrying of concealed firearms. ORS 166.250(1)(a). The statute also creates exceptions to that general prohibition, including an exception that allows adult citizens to carry concealed handguns in their "place[s] of residence" and "place[s] of business" without obtaining a permit or license to do so. ORS 166.250(2)(b).[1] In this case, a jury convicted defendant of one count of unlawful possession of a firearm, based on the state's assertion that defendant had "unlawfully and knowingly carr[ied] a firearm concealed upon [his] person" in violation of ORS 166.250(1).[2] Defendant appeals the judgment of conviction, challenging the trial court's refusal to deliver his requested jury instruction on the "place of residence" exception to the general prohibition against carrying concealed firearms. Defendant contends that he was entitled to have that instruction given because the jury could have inferred from evidence in the record that he was within his "place of residence" when he carried the concealed pistol at issue. For the reasons set out below, we reverse and remand for further proceedings.

When a defendant challenges a trial court's refusal to give a requested jury instruction, we view the facts in the light most favorable to giving that instruction. State v. Cossette, 256 Or.App. 675, 676, 301 P.3d 954 (2013). We summarize the facts of this case with that standard in mind, focusing on the evidence related to the unlawful-possession conviction.

In August 2011, defendant rented a campsite at the North Fork John Day Campground, planning to stay for a week. Defendant's campsite was about 30 feet away from the campsite used by the camp host, who testified at trial, and was about the same distance away from at least two other campsites. Defendant had a vehicle and a tent at his campsite. He also had brought a dredge to the campground, which he planned to use for mining in the river. The camp host engaged defendant in conversation because he did not believe that defendant could lawfully dredge at that time and place. Defendant asserted that he had a permit to engage in dredging and displayed "some papers" to the camp host, who testified he did not read the documents "because [he did not] understand them anyway." Because it appeared that defendant intended to go forward with the dredging, the camp host "called dispatch" to request that somebody come to the campsite and explain the law to defendant. Defendant then retrieved a rifle from his vehicle and assembled it while he watched the camp host and other people in the area; when he finished assembling the rifle, he put it inside his tent. The camp host then made another radio call, requesting that law enforcement officers come to the campground.

Forest Service officer Ross responded to the camp host's call. As he drove into the campground, he saw defendant standing next to his tent and his vehicle. Defendant's tent was a dome tent about four feet tall. Ross saw a rifle in the tent's doorway, and he testified that a sleeping bag and, possibly, a chair also were inside. Ross secured the rifle and unloaded it, then put it on defendant's vehicle. He then asked defendant, who was standing outside of the tent, who he was and whether "he had any other weapons on him." Defendant indicated that he had a pistol in his right front pocket. Ross took that firearm, which had been concealed, and unloaded it. He then asked defendant whether he had a permit to carry the concealed pistol, as it had not been "in the open or in a holster or anything."[3] Defendant responded that he did not need a permit for the pistol, but he did not elaborate. The entire conversation between defendant and Ross took place at defendant's campsite. Ross eventually concluded that defendant had the permits that would allow him to engage in his planned dredging activities.

Forest Service officer Bland also responded to the call; by the time he arrived, Ross already was at the campground and had secured defendant's weapons. Bland engaged defendant in conversation while Ross took witness statements. Defendant asked Bland a few times "what was going on, " and Bland explained that he and Ross had received a complaint about defendant having frightened other people at the campground when he assembled the rifle. Defendant talked about his dredging plans, and he and Bland also discussed other topics, including dogs and hunting.

At trial, defendant testified in his own behalf, asserting that he believed that he had not needed a license to carry the concealed pistol in his pocket because he had been on what he described as his "own rented property" at the campsite and had remained within its confines whenever he had the pistol on his person. He also testified that, at some point before officers arrived, he had made a pot of coffee.

After both parties rested, the trial court and lawyers conferred about jury instructions. The state requested (and the court eventually delivered) the uniform instruction related to the charge of unlawful possession of a firearm. That instruction states, in part, "Oregon law provides that a person commits the crime of unlawful possession of a firearm if that person knowingly carries any firearm concealed upon his person."

In accordance with his theory that his campsite had been his place of residence, defendant requested the ...

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