State v. Folkerts

¶1*785Defendant appeals a judgment of conviction for unlawful possession of a firearm, ORS 166.250(1)(a),1 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).2 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.

¶2Below, 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), aff'd , 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, 996 P.2d 995, the exception in ORS 166.250(2)(b) similarly *786applies 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 *541the 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, seeState v. Barnes , 329 Or. 327, 334, 986 P.2d 1160 (1999), and accept the state's concession.

¶3Further, 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. SeeState v. Davis , 336 Or. 19, 35, 77 P.3d 1111 (2003) (stating harmless error standard).

¶4Reversed and remanded.