Submitted October 06, 2017
County Circuit Court 15CR47739; Thomas M. Ryan, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Ingrid A. MacFarlane, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Adam Holbrook, Assistant Attorney General, fled
the brief for respondent.
Ortega, Presiding Judge, and Garrett, Judge, and Powers,
Or. 785] PER CURIAM.
appeals a judgment of conviction for unlawful possession of a
firearm, ORS 166.250(1)(a),  in particular, knowingly carrying
a firearm concealed upon his person. Defendant assigns as
error the trial court's rejection of his request to
instruct the jury on the exception to that offense when a
person possesses a firearm at the person's "place of
residence, " ORS 166.250(2)(b). Police encountered defendant
in a garage that was "detached" from the main
residence but connected by a "breezeway" three to
four feet wide underneath a roof. The garage had within it
chairs and a table so that residents and guests could use it
as a place to "hang out" and was considered an
"extension" of the house's living areas.
Defendant was living as a guest in the residence.
the state argued that the exception did not apply to the
garage because it was not a "place of residence"
and that, in any event, the "place of residence"
exception does not apply to unlawful possession of a firearm
by concealment upon a person. On appeal, however, the state
concedes that, under State v. Perry, 165 Or.App.
342, 996 P.2d 995 (2000), affd, 336 Or. 49, 77 P.3d
313 (2003), the "place of residence" exception
applies to unlawfully carrying a concealed firearm. That is,
because we held in Perry that ORS 166.250(2)(b)
"provides an exception the statutory prohibition in ORS
166.250(1)(a) against carrying a concealed firearm for
persons who do so in the place of business, " 165
Or.App. at 348, the exception in ORS 166.250(2)(b) similarly
[290 Or. 786] applies to ORS 166.250(1)(a) when the
concealment of the firearm is in a "place of
residence." Further, the state also concedes that,
viewing the record in the light most favorable to defendant,
there was sufficient evidence in the record for a jury to
conclude that the garage was used as part of the residence.
We agree that defendant's requested instruction correctly
stated the law applicable to his defense theory, see
State v. Barnes, 329 Or. 327, 334, 986 P.2d 1160 (1999),
and accept the state's concession.
we conclude that the instructional error was not harmless.
Failing to instruct the jury on the exception deprived
defendant of that defense, and, had the jury been given the
instruction, there is some likelihood that it would have
reached a different verdict. See State v. Davis, 336
Or. 19, 35, 77 P.3d 1111 (2003) (stating harmless error
 ORS 166.250(1) provides, in relevant
"Except as otherwise provided in this section
***, a person commits the crime of unlawful possession of a
firearm if the ...