State v. Abram
| Decision Date | 02 September 2015 |
| Docket Number | 12C43548, A153191. |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. David Luke ABRAM, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Assistant Attorney General, filed the brief for respondent.
Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.
Defendant appeals a judgment of conviction for unlawful possession of a firearm. ORS 166.250. Under ORS 166.250(1), a person commits that crime by, among other things, knowingly carrying “any firearm concealed upon the person.” For purposes of that statute, “[f]irearms carried openly in belt holsters are not concealed.” ORS 166.250(3). Defendant assigns error to the trial court's failure to instruct the jury that “the state must prove beyond a reasonable doubt * * * that the firearm was not carried openly in a belt holster.” As explained below, we conclude that the trial court so erred and, accordingly, we reverse and remand.
The following evidence was presented at trial. In May 2012, Kast, a deputy of the Marion County Sheriff's Office, responded to a report of a shot possibly having been fired in a home where children were present. Having learned that defendant drove away from that house, Kast stopped the vehicle defendant was driving to investigate the report. Defendant's children were in the vehicle with him. Kast observed at least one of the children in the truck with defendant, and instructed defendant to hold his hands up. Defendant confirmed to the officer that he had a gun.
Once defendant was out of the vehicle, according to Kast, he then had defendant turn around and Kast took the gun, which was loaded, from a holster on the waist band of defendant's pants. Kast testified that he did not see the gun until he “got up close” to defendant and that the gun was under defendant's clothing. In response to the prosecutor's question about whether the gun and holster were concealed by defendant's clothing, Kast testified, “I didn't see them.”
Defendant, for his part, testified that he wore the holster on his belt and demonstrated for the jury how he wore the holster. According to defendant, the gun he carried was “bulky” and “not really meant to be a concealed firearm in any way, shape or form.” He stated that, if he carried the gun inside his pants at his back, it “would cause [him] such pain that [he] would have stopped and pulled the firearm out.” Defendant's daughter also testified that she saw defendant carrying the gun in his holster clipped onto his belt and that his shirt was “back behind it” both before he got in and also when he got out of the vehicle on the day in question.
Defendant was charged, under ORS 166.250, with unlawful possession of a firearm. The charging instrument alleged that defendant, “on or about May 10, 2012, in Marion County, Oregon, did unlawfully and knowingly carry a firearm concealed upon the person.” At trial, defendant requested that the jury be instructed that, to convict him of unlawful possession of a firearm, the state was required to prove beyond a reasonable doubt that the firearm was not carried openly in a belt holster. Specifically, defendant requested the following jury instruction:
Defendant asserted that the instruction was appropriate pursuant to ORS 166.250(3). The trial court, however, declined to give the instruction, noting that “the uniform instruction * * * does not contain the fourth element, even as an option” and that it would “not giv[e] that as an element of the crime.”
On appeal, defendant asserts that the trial court erred in refusing to give his requested jury instruction. When reviewing the trial court's failure to give defendant's requested jury instruction, we view the facts in the light most favorable to defendant, State v. Oliphant, 347 Or. 175, 178, 218 P.3d 1281 (2009), and we review the trial court's refusal to give the requested instruction for errors of law, State v. Branch, 208 Or.App. 286, 288, 144 P.3d 1010 (2006). “A party is generally entitled to have the court instruct a jury on a legal principle if there is evidence to support it and the proposed instruction accurately states the law.” State v. McNally, 272 Or.App. 201, 207, 353 P.3d 1255 (2015). “Instructional error exists where the instructions give the jury an incomplete and thus inaccurate legal rule to apply to the facts * * *.” State v. Bistrika, 261 Or.App. 710, 728, 322 P.3d 583, rev. den., 356 Or. 397, 337 P.3d 127 (2014) (internal quotation marks omitted).
ORS 166.250, which defines the crime of unlawful use of a weapon, provides, in part:
Defendant argues that, by “defining ‘concealed’ to exclude firearms carried openly in holsters, ORS 166.250(3) requires the state to prove that the firearm was not carried openly in a belt holster in order to prove that the firearm was concealed. ” (Emphasis in original.) Defendant also contends that the requested instruction “correctly identified the required factual finding—whether the firearm was carried openly in a belt holster—and correctly allocated the burden of proof on that factual finding—to the state, beyond a reasonable doubt.” In addition, according to defendant, the instruction “correctly identified that factual finding as an ‘element’ because, in common parlance, an element of a crime is simply a constituent part of the crime that the state must prove beyond a reasonable doubt.” The state, for its part, asserts that the trial court properly declined to give defendant's requested instruction because, although it was based on defendant's “theory of the case, which the evidence supported,” it misstated the law. Specifically, according to the state, the “belt holster” provision in ORS 166.250(3) is a defense and not an element of unlawful possession of a firearm and, therefore, the trial court “properly refused to give defendant's requested instruction, which incorrectly made the ‘belt holster’ exception an element of the charged offense.”
We need not decide whether the belt holster issue is an element of the offense or a defense because, in either case, we conclude that defendant's instruction correctly set forth the factual finding that the jury was required to make to convict defendant. The instruction also properly allocated the burden to the state to prove that fact beyond a reasonable doubt. Accordingly, under the circumstances, the proposed jury instruction correctly stated the law.
The state has the burden to prove each element of an offense beyond a reasonable doubt. See State v. Rainey, 298 Or. 459, 465, 693 P.2d 635 (1985). The same burden of proof applies to the state where a defendant, through affirmative evidence in his case-in-chief, raises a defense other than an affirmative defense. ORS 161.055 specifically provides:
Here, the carrying of a firearm openly in a belt holster is not explicitly “declared to be an ‘affirmative defense’ ” under the statutory text. See id. at 41, 33 P.3d 346 (); cf. State v. Velykoretskykh, 268 Or.App. 706, 707–08, 343 P.3d 272 (2015) (); State v. Lyon, 65 Or.App. 790, 792–93, 672 P.2d 1358 (1983) (). Furthermore, the text and context of ORS 166.250 do not set out the “belt holster” issue as an exception that stands apart from the elements of...
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