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State v. Harrison

Supreme Court of Oregon, En Banc

October 10, 2019

STATE OF OREGON, Respondent on Review,
v.
KALISTA RENE HARRISON, Petitioner on Review.

          Argued and submitted March 7, 2019, at the University of Oregon School of Law, Eugene, Oregon.

          On review from the Court of Appeals. (CC 14CR1504MI) (CA A159491) [*]

          Sarah Laidlaw, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

          Keith L. Kutler, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         [365 Or.App. 585] Case Summary: Defendant was convicted of violating ORS 166.250(1)(b), which provides that a person commits the crime of unlawful possession of a fre-arm if the person knowingly "[p]ossesses a handgun that is concealed and readily accessible to the person within any vehicle." The Court of Appeals affirmed the conviction. On review, defendant argued that the evidence was insufficient to support a finding that her handgun was "concealed" for purposes of the statute. Defendant also argued that the trial court erred by declining to issue defendant's requested jury instruction. Held: (1) Under ORS 166.250(1)(b), a handgun is "concealed" in a vehicle if the placement of the gun would fail to give reasonable notice of the gun's presence, through ordinary observation, to a person actually coming into contact with the occupants of the vehicle and communicating in the manner typical of such a contact; (2) the evidence was sufficient to support a find-ing that defendant's handgun was "concealed" in her vehicle, where witnesses testified that the gun was tucked into the interior pocket of the driver's side door and would not have been observable by a person standing outside the vehicle and communicating with the occupants through the driver's side window; and (3) the trial court did not err in declining to issue defendant's requested jury instruction, where the instruction that the trial court gave was legally correct and differed only slightly from defendant's requested instruction.

         The decision of the Court of Appeals and the judgment of the circuit court are affirmed

         [365 Or.App. 586] GARRETT, J.

         This case requires us to construe the term "concealed" for purposes of ORS 166.250(1)(b), [1] which provides that a person commits the crime of unlawful possession of a firearm if the person knowingly "[possesses a handgun that is concealed and readily accessible to the person within any vehicle!.]"

         The relevant facts are few and undisputed. A police officer, Hopkins, initiated a traffic stop of defendant for reasons that are not relevant on review. As Hopkins approached defendant's stopped vehicle, defendant stepped out of the car, left the driver's side door open, and began walking away. Hopkins followed her on foot. Meanwhile, Officer Barrett arrived at the scene. In observing the open driver's side door, Barrett saw the upper handle and cylinder of a handgun tucked barrel-down in the door's interior pocket, which was located below the window and armrest and lower than the level of the driver's seat. According to testimony from Hopkins, the handgun would have been readily accessible to the driver and not visible "when the door was closed when there was a driver in the driver's seat and the vehicle was traveling down the road." Defendant was charged with violating ORS 166.250(1)(b).[2]

         At trial, defendant moved for a judgment of acquittal (MJOA), arguing that the handgun was not "concealed" within the meaning of the statute. The trial court denied that motion. Defendant also requested that the trial court give a special jury instruction concerning the definition of "concealed." The trial court declined to issue defendant's requested instruction and gave a different instruction, which will be discussed below. Defendant was convicted, [365 Or.App. 587] and the Court of Appeals affirmed. We allowed review as to both rulings and now affirm.

         We begin with defendant's MJOA. Before the Court of Appeals, defendant advanced two arguments as to why the trial court should have granted her motion. First, defendant argued that, by the time Officer Barrett saw the gun, defendant had left the car door open "and did not attempt to shut it, permitting the officers and any onlookers to see the gun." State v. Harrison, 292 Or.App. 232, 236, 423 P.3d 735 (2018) (internal quotation marks omitted). The Court of Appeals rejected that argument, reasoning that

"the question for purposes of the motion for judgment of acquittal is whether the gun was concealed at some point. In other words, if there is evidence that the gun was concealed while the door to the vehicle was closed, the fact that the gun was revealed when the door was opened would not be reason to take the case from the jury."

Id. (emphasis in original).

         Defendant's second argument was that the state had failed to produce evidence that, when the vehicle door was closed, the handgun could not have been seen from ordinary vantage points, including by a person "standing next to defendant's closed vehicle door." Id. The Court of Appeals again disagreed, concluding that the evidence regarding the location of the door's interior pocket

"below the level of the driver's seat and below the window and armrest, *** along with Hopkins's affirmative response when asked whether the gun would not have been visible when the door of the vehicle was closed and it was being driven down the road, supports a finding that the gun was shielded from the vision or notice of a person approaching the driver from outside the vehicle and-in the context of this encounter-was 'concealed.'"

Id. at 236-37.

         On review, defendant takes issue with the Court of Appeals' construction of the word "concealed," and specifically with that court's emphasis on whether a handgun was concealed "at some point." In defendant's view, that phrase, combined with the court's reliance on Hopkins's testimony [365 Or.App. 588] that the gun would not have been visible while the car was "being driven down the road," suggests a very broad construction of "concealed" that would criminalize more conduct than the legislature intended. That is, if the court's construction can be understood to apply to any handgun that becomes even momentarily hidden from the view of another person, including a person outside the car while the car is in motion, then virtually all handguns in vehicles would fit the definition of "concealed," no matter how openly displayed.[3]

         To avoid such problems, defendant proposes that "concealed" in ORS 166.250(1)(b) should be understood to mean "keeping a handgun in a location in a vehicle as a means of making it not visible or recognizable from an ordinary vantage of a person in an ordinary interaction with the defendant." Under her definition, defendant explains, a person would be permitted to possess a readily accessible handgun anywhere in a vehicle where the gun reasonably can be seen from at least one ordinary vantage point, even if the gun is not observable from other ordinary vantage points. Defendant also urges us to interpret "concealed" to require an intention to make the handgun difficult or impossible to observe. If one accepts her definition, defendant argues, she should have been acquitted because the state failed to prove that an ...


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