423 P.3d 736
Or. Ct. App.2018Background
- On April 15, 2014 police stopped defendant after a 9-1-1 call reporting she violated a restraining order and might be armed and suicidal; caller said she routinely carried a handgun in her vehicle.
- During a high-risk stop defendant exited her car; the driver-side door remained open and officers observed a fully loaded handgun in the door pocket with the handle and top of the cylinder protruding and the barrel pointing down.
- Officer Hopkins testified the gun would not have been visible when the door was closed and the vehicle was driven, and that the gun was readily accessible to the driver.
- Defendant was charged with unlawful possession of a firearm under ORS 166.250(1)(b): knowingly possessing a handgun that is concealed and readily accessible within a vehicle.
- At trial defendant moved for judgment of acquittal arguing insufficient evidence that the gun was "concealed" or that she "knowingly" concealed it; the court denied the motion and also declined defendant’s requested jury instructions defining "concealed" and "knowingly."
- Jury convicted; defendant appealed. The appellate court affirmed, holding the evidence supported a finding the gun was concealed and the court did not err in refusing the requested instructions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency: Was the gun "concealed" under ORS 166.250(1)(b)? | Evidence showed gun was in door pocket below window/armrest and would not have been visible when door closed; a rational juror could find it concealed. | Gun was visible when door open and no evidence it was concealed while the car was closed or that defendant attempted to hide it. | Affirmed: viewing evidence most favorably to state, jury could find the gun was concealed when the door was closed. |
| Mens rea: Did defendant "knowingly" possess a concealed, readily accessible handgun? | If the gun was concealed, testimony supports that it was readily accessible and defendant was aware of possession. | No evidence defendant knew the gun was concealed; therefore lack of awareness negates knowing possession. | Affirmed: because evidence supported concealment, mens rea element could be found by jury. |
| Trial court refusal to instruct on "concealed" as proposed by defendant | The proposed instruction was incomplete/misleading because it limited concealment to either an attempt to obscure or a weapon not readily identifiable. | The proposed definition accurately stated law and fit the record. | Affirmed: court properly refused—proposed wording was not correct in all respects and could mislead jury. |
| Trial court refusal to give defendant's "knowingly" instructions | Court’s given instruction correctly defined "knowingly" and applied it to concealed/readily accessible; it covered requested substance. | Requested instructions clarified that awareness must separately attach to "concealed" and "readily accessible." | Affirmed: either proposed instruction was incorrect or its substance was covered by the instructions actually given. |
Key Cases Cited
- State v. Turner, 221 Or. App. 621 (construing "concealed"; weapon may be concealed if not readily identifiable or if there was an attempt to obscure it)
- State v. Guy, 229 Or. App. 611 (standard for reviewing denial of judgment of acquittal)
- Hernandez v. Barbo Machinery Co., 327 Or. 99 (requested instruction must be correct in all respects)
- State v. Luke, 104 Or. App. 541 (caution against transplanting an instruction from a factually distinct case)
- Laubach v. Industrial Indem. Co., 286 Or. 217 (no need to give instruction that merely enlarges a correct one already given)