State v. Abram, 359 P.3d 431

Defendant charged with unlawful possession of a firearm under ORS 166.250 based on allegedly carrying a concealed firearm.
ORS 166.250(3) provides that firearms carried openly in belt holsters are not concealed.
Defendant moved for a jury instruction requiring the state prove beyond a reasonable doubt that the firearm was not carried openly in a belt holster.
Trial court refused the instruction, stating the belt holster exception is not an element of the offense.
Evidence showed the gun was in a holster, with testimony about concealment under clothing; defendant testified the holster was on his belt and not meant to conceal.
The court ultimately reversed and remanded, concluding the belt holster issue needed proper instruction and burden allocation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does ORS 166.250(3) define concealment to exclude belt holster carry?	Kast/State argued belt holster open carry is not concealed.	Defendant argued concealment requires not carrying openly in a belt holster; belt holster issue confines liability.	Yes; belt holster carve-out defines concealment and is central to liability.
Should the jury have been instructed that the state must prove not openly carried in a belt holster beyond a reasonable doubt?	State contends no such instruction was required as it misstates the law.	Defendant contends the instruction correctly identified a factual finding and burden.	Yes; the proposed instruction correctly stated the law and burden.
Is the belt holster issue an element of the offense or a defense for burden purposes?	State argues it is not an affirmative defense but part of the offense's elements.	Defendant argues it is an affirmative defense or, at minimum, an essential element/notice issue.	Either way, the instruction correctly set forth the required finding and burden.

State v. Rainey, 298 Or 459 (1985) (state bears burden to prove each element beyond a reasonable doubt)
State v. Honzel, 177 Or App 35 (2001) (ORs 161.055 applies to defenses outside affirmative defenses)
State v. Boly, 210 Or App 132 (2006) (affirmative defenses are signified by limitation language; burden can shift)
State v. Vasquez-Rubio, 323 Or 275 (1996) (discern legislative intent for whether a fact is an affirmative defense)
State v. Stroup, 290 Or 185 (1980) (due process concerns on burdens for certain defenses)
State v. Fisher, 100 Or App 149 (1990) (concerning concealment concepts under ORS 166.250)
State v. Johnson, 96 Or App 166 (1989) (example of concealment not satisfied by partial coverage)
State v. Haley, 64 Or App 209 (1983) (affirmative defenses historically labeled under former code)