State v. Harrison

                                       584

  Argued and submitted March 7, at the University of Oregon School of Law,
  Eugene, Oregon; decision of Court of Appeals and judgment of circuit court
                         affirmed October 10, 2019


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                KALISTA RENE HARRISON,
                    Petitioner on Review.
         (CC 14CR1504MI) (CA A159491) (SC S066132)
                                   

    Defendant was convicted of violating ORS 166.250(1)(b), which provides that
a person commits the crime of unlawful possession of a firearm 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 finding 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.


   En Banc
   On review from the Court of Appeals.*
   Sarah Laidlaw, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed 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 filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
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 (2019)                                             585

   GARRETT, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.




______________
    * On appeal from Douglas County Circuit Court, William Marshall, Judge.

, 

 (2018).
586                                                    State v. Harrison

           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 “[p]ossesses 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,

    1
      The version of ORS 166.250 in effect at the time of defendant’s crime has
since been amended but the amendments do not affect the analysis in this case.
Accordingly, we cite the current version of the statute.
    2
      ORS 166.250 provides, in pertinent part:
       “(1) Except [in circumstances not relevant here], a person commits the
   crime of unlawful possession of a firearm if the person knowingly:
       “…
       “(b) Possesses a handgun that is concealed and readily accessible to the
   person within any vehicle[.]”
Cite as 

 (2019)                                      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, 

, 

 (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.”

 (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.” 

 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
588                                                       State v. Harrison

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 ordinary observer could not have seen the handgun
from any vantage point, and because the state further failed
to prove that the handgun was placed in such a way that
indicated an intention to hide it.
         The state, in contrast, argues that a handgun is
“concealed” under ORS 166.250(1)(b) if it is “shielded from
the vision of some persons who are in contact with, or who
may come into contact with, the vehicle,” and that the handgun “does not have to be completely hidden from the view
of all persons other than the one who possesses it.” In the
    3
      Defendant also suggests that the interpretation of ORS 166.250(1)(b)
adopted by the Court of Appeals, as she characterizes that interpretation, “could
unlawfully infringe on the people’s constitutional rights to carry weapons in selfdefense.” However, as explained below, 365 Or at 589, we give the term “concealed” a narrower meaning than that which defendant ascribes to the Court
of Appeals opinion. Defendant does not argue that ORS 166.250(1)(b) is facially
unconstitutional and does not develop an argument that would suggest that our
ultimate interpretation of ORS 166.250(1)(b), discussed below, would violate the
Oregon or federal constitution.
Cite as 

 (2019)                                   589

state’s view, a handgun in a vehicle is concealed if it is not
“discernible by ordinary observation” to at least some people who may come into contact with the vehicle. Defendant
responds that the state’s definition, like her characterization of the Court of Appeals’ construction, is unreasonably
broad in that it would seem to mean that a handgun displayed openly within a vehicle would be “concealed” because
it would not be observable from various vantage points outside the vehicle.
          As explained below, we do not agree with either
party’s definition. We conclude that, in the context of ORS
166.250(1)(b), the legislature intended that 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—such as through
an open window. So understood, the evidence in this case
was sufficient to support a finding that defendant’s gun was
“concealed.”
        The issue before us is one of statutory interpretation. Accordingly, we consider the text, context, and any
relevant legislative history under the familiar methodology
articulated in State v. Gaines, 

, 

 (2009).
        We begin with the statutory text. ORS 166.250(1)(b)
provides, in relevant part:
      “(1) … [A] person commits the crime of unlawful possession of a firearm if the person knowingly:
      “…
      “(b) Possesses a handgun that is concealed and readily
   accessible to the person within any vehicle[.]”
        The legislature did not define “conceal” for purposes
of ORS 166.250. Because that term is a word of common
usage, we presume that the legislature intended that it be
given its ordinary meaning. Gaines, 

; PGE
v. Bureau of Labor and Industries, 

, 

 (1993). The ordinary meaning of “conceal” is to
590                                         State v. Harrison

“prevent disclosure or recognition of,” “withdraw from being
observed,” or “shield from vision or notice.” Webster’s Third
New Int’l Dictionary 469 (unabridged ed 2002). Thus, the
verb “conceal” refers to actions taken that cause something
to be unrecognized or obscured from view, while “concealed,”
in its adjectival form, describes an object with respect to
which those actions have been taken.
         In short, under the word’s ordinary meaning, an
object presumably is “concealed” if someone has caused
another person to fail to notice the object by causing it to be
reasonably (even if not completely) indiscernible, including
by obstructing the person’s view of the object or making it
less recognizable.
          Defendant does not take issue with that understanding, as far as it goes. However, she asserts that the
common meaning of “concealed” also includes a limitation: the word refers only to acts performed for the purpose of causing failures to notice an object. In support of
that proposition, defendant relies on the definitions quoted
above as well as earlier dictionaries from around the time
that Oregon’s first concealed-weapons statute was enacted,
which define the term “concealed weapons” as “dangerous
weapons so carried on the person as to be knowingly or willfully concealed from sight.” 1910 Webster’s New International
Dictionary of English Language 461 (reference history ed)
(emphasis added); see also 1891 Black’s Dictionary of Law
241 (“ ‘concealed weapons’ means weapons willfully or knowingly covered or kept from sight” (emphasis added)).
         Those dictionary definitions offer some support for
defendant’s contention that, in ordinary usage, the term “concealed” can connote an element of willfulness and design;
on the other hand, the references to “knowingly” imply a
lesser mental state and suggest that an object can be considered “concealed” if a person acted with knowledge that the
object would not be discoverable, regardless of whether the
person had the purpose of preventing discovery. Of course,
“dictionaries are only the starting point for our textual
analysis.” State v. Gonzalez-Valenzuela, 

, 

 (2015) (internal quotation marks omitted); see also
State v. Cloutier, 

, 

 (2011)
Cite as 

 (2019)                                       591

(“Dictionaries, after all, do not tell us what words mean,
only what words can mean, depending on their context and
the particular manner in which they are used.” (Emphasis
in original.)). The question is what the legislature meant by
“concealed” in the specific context of ORS 166.250.
          Earlier versions of Oregon’s concealed-weapons laws
provide context for understanding ORS 166.250. See State v.
Briney, 

, 

 (2008) (so recognizing).
In Briney, we noted that Oregon’s first concealed-weapons
law was enacted in 1885 and imposed a complete prohibition on the possession of concealed weapons. 

.
In 1925, the legislature relaxed that blanket ban to allow
persons to acquire licenses to carry concealed weapons and
to specify that a weapon carried openly in a belt holster was
not “concealed” for purposes of the statute. 

; see
also General Laws of Oregon, ch 260, § 5 (1925) (“[I]t shall
be unlawful for any person within this state to carry concealed upon his person or within any vehicle … any pistol[ or] revolver … without having a license to carry such
firearm[.] … Firearms carried openly in belt holsters shall
not be deemed to be concealed within the meaning of the
section.”). We explained that the legislature’s enactment of
the belt holster provision shed light on what the statute was
intended to do:
   “Had the legislature intended the statutory prohibition
   against carrying concealed firearms to act as a general
   restriction on the ability to carry handguns or to serve as
   the ultimate protection against the use of such weapons, it
   would not have created, in the same provisions, an exception for firearms carried openly in a holster. The fact that it
   did, however, evinces a different policy rationale, one aimed
   at providing notice to those who may come into contact with
   an individual carrying a firearm.
      “That rationale—ensuring the public’s ability to assess
   whether a person is presently in possession of a weapon—is
   the legislative purpose often identified with the enactment
   of weapons concealment statutes around the country. The
   Iowa Supreme Court, for example, has stated:
          “ ‘We discern the policy underlying the prohibition
      against concealed weapons to be based on the protection of those persons who may come into contact with
592                                            State v. Harrison

      a weapon bearer. If a weapon is not concealed, one may
      take notice of the weapon and its owner and govern
      oneself accordingly. No such opportunity for cautious
      behavior or self-preservation exists for one encountering a bearer of a concealed weapon.’
   “State of Iowa v. Rodney Newsom, 

   (1997). See also James Dorelus v. State of Florida, 747 So 2d
   368, 370 (1999) (Florida prohibition against carrying concealed weapons aimed at preventing those with weapons
   from taking ‘undue advantage’ of unsuspecting adversaries who are not aware the person is carrying a weapon).”
Briney, 

 (emphasis added).
         In short, we previously have recognized that the
history of Oregon’s concealed-weapons law reveals both
a purpose—giving notice of weapons’ presence, to effectuate public safety—and a specific category of persons whom
the law was intended to protect—individuals who “may
come into contact with” a person carrying a gun. In turn,
the public safety objective of “ensuring the public’s ability
to assess whether a person is presently in possession of a
weapon” suggests that the motive of the person possessing
the weapon is unimportant, so long as that person is acting
with the knowledge that his or her gun cannot reasonably
be observed. The public safety purpose further suggests
that an individual “who may come into contact with” the
possessor of a handgun should not need to engage in heightened observation to notice the gun; the statute would do
little good in ensuring notice to “the public” if the statute
demands a level of scrutiny beyond what people exercise in
everyday life.
         With those considerations in mind, the shortcomings of defendant’s interpretation of “concealed” in ORS
166.250(1)(b) become apparent. Defendant proposes that a
handgun is not “concealed” in a vehicle so long as it can be
observed by at least one person who is in contact with, or who
may come into contact with, the gun’s possessor. That construction would render the statute ineffective in protecting
the people for whom the statute was designed. In the context of a vehicle whose driver possesses a gun, defendant’s
definition would mean that, if a passenger can see the gun,
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 (2019)                                                   593

it is not concealed, even if the gun is not reasonably observable by a person standing just outside the vehicle, such as a
police officer, gas station attendant, or other person whose
interactions with a driver though an open window are readily foreseeable. Such a result would privilege the passenger
(who already has chosen to be in proximity to the driver and
weapon) over the unsuspecting stranger who “may come into
contact with” the driver. See Briney, 

; see also
Dorelus, 747 So 2d at 370; Newsom, 

.
         Context and history also undermine defendant’s
suggestion that a handgun is “concealed” only where the
nature of its placement indicates a specific purpose of preventing discovery. Although the term “concealed” can sometimes have that connotation, reading that limitation into
ORS 166.250 would make the statute inapplicable when
persons act with the knowledge that their weapons are not
reasonably observable—a result that would be at odds with
the legislature’s public safety objective.4
         At the same time, we decline to endorse the state’s
definition, which proposes that a gun in a vehicle is concealed if it is “shielded from the vision of some persons who
are in contact with, or may come into contact with, the vehicle.” That definition lacks a meaningful limiting principle.
No matter how openly a handgun is displayed within a vehicle, there are likely to be angles of view (to say nothing of
distances) from which a person outside the vehicle would be
unable to see it.
          Given the policy rationale behind ORS 166.250
(1)(b), we conclude that the legislature intended that whether
a handgun is “concealed” in a vehicle for purposes of the
statute would turn on whether the placement of the gun
would give reasonable notice of the gun’s presence, through
ordinary observation, to a person coming into contact with

    4
      Defendant’s only other argument for her understanding of “concealed” is
that this court has already interpreted the term that way in State v. Riley, 

, 

 (1965). We disagree. In Riley, this court concluded that probable cause of a violation of ORS 166.250 existed where a gun was placed under a
car seat “indicating an effort to conceal it.” 

. However, although Riley
suggests that such intention to conceal may be sufficient to establish probable
cause of a violation of ORS 166.250, the case does not purport to require such an
intention to support a conviction under the statute.
594                                                         State v. Harrison

the occupants of the vehicle and communicating in the manner typical of such a contact—such as through an open window.5 So understood, whether a handgun is “concealed” in
a vehicle will ultimately be a question for the finder of fact.
        We now consider whether the evidence in this case
was sufficient to support a finding that defendant’s handgun was concealed—that is, whether there was evidence
that a person coming into contact with the vehicle and its
occupants and communicating in a manner typical of such
contact would not reasonably have been able to observe the
handgun.
          The state presented evidence that the handgun
was tucked barrel-down in the interior side pocket of the
driver-side door, with the gun’s handle protruding up and
out of the pocket. Barrett testified that the interior pocket
was located below the level of the driver’s seat, and that
there was an armrest between the window and the interior
pocket. Hopkins testified that the gun would not have been
visible from outside the car when the door was closed.6 From

     5
        Other courts have reached similar understandings of what “concealed”
means in the context of firearms. See, e.g., Ensor v. State, 403 So 2d 349, 354-55
(Fla 1981) (whether firearm is “concealed” is not an “absolute standard” and
inquiries whether firearm is hidden from the casual and ordinary observation of
another person in the normal associations of life); People v. Schuford, 50 Ill App
3d 408, 410-11, 

 (1977) (“concealment” contemplates only
ordinary observation and requires that firearm is covered or obstructed so as to
make its recognition at least difficult); State v. Gwinn, 

 (Me 1978)
(firearm is “concealed,” even if not absolutely invisible, when it is “not discernible
by the ordinary observation of persons coming in contact with the person carrying
it, casually observing him, as people do in the ordinary and usual associations of
life”); Shipley v. State, 243 Md 262, 269, 

 (1966) (weapon is
“concealed” if “it is so situated as not to be discernible by ordinary observation by
those near enough to see it if it were not concealed who would come into contact
with the possessor in the usual associations of life,” although absolute invisibility
is not required); People v. Kincade, 

, 

 (1975)
(weapon is “concealed” when “it is not discernible by the ordinary observation of
persons coming in contact with the person carrying it, casually observing him, as
people do in the ordinary and usual associations of life,” though absolute invisibility is not required (internal quotation marks omitted)).
     6
        Defendant cites language in the Court of Appeals opinion that, she contends, will have the effect of proscribing handguns that are not visible for even a
moment, including guns that could be seen through ordinary observation when
the vehicle is stopped but will become briefly hidden from view when the car is
moving. We do not interpret the Court of Appeals opinion that way. However, to
the extent that that opinion could be read as defendant suggests, it would articulate a broader definition of “concealed” than the legislature intended.
Cite as 

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that evidence, a factfinder could reasonably infer that the
gun would not have been visible to a stranger engaged in
an ordinary and foreseeable interaction with the vehicle’s
occupants, such as communicating with the driver through
an open window. In short, the evidence is sufficient to support a finding that the gun was concealed. The trial court
therefore did not err in denying defendant’s MJOA.
        We turn to the second issue that defendant raises
on review: whether the trial court erred in refusing to
give defendant’s requested jury instruction regarding how
the term “knowingly” applies to “concealed” under ORS
166.250(1)(b). Defendant asked the trial court to give the
following instruction:
   “When used in the phrase ‘knowingly possesses a handgun
   that is concealed and readily accessible within a vehicle,’
   knowingly means that the person acts with an awareness
   that the handgun is concealed and acts with an awareness
   that it is readily accessible.”
(Emphasis added.) The trial court declined that request
and, instead, gave the following jury instruction:
   “When used in the phrase ‘knowingly possessed a handgun
   that was concealed and readily accessible to her within a
   vehicle,’ knowingly or with knowledge means that the person
   acts with an awareness that she possessed a handgun that
   was concealed and readily accessible to her within a vehicle.”
(Emphasis added.) Before the Court of Appeals, defendant
conceded that the trial court’s given instruction was legally
correct but argued that her alternative instruction was
preferable because it more clearly explained to jurors how
the mental state of “knowingly” applied to the term “concealed” under ORS 166.250(1)(b), ruling out the possibility that jurors would misinterpret the statute. The Court
of Appeals rejected defendant’s argument and held that,
because the trial court’s given instruction was legally correct, the trial court was “not required to give an instruction that was merely an enlargement on another correct and
complete instruction already given.” Harrison, 

 (citing Laubach v. Industrial Indemnity Co., 

, 

 (1979)). The Court of Appeals accordingly affirmed the judgment of conviction.
596                                        State v. Harrison

          On review, defendant reiterates her argument
that, although the trial court’s instruction was legally correct, it allowed jurors to reach a legally incorrect interpretation of ORS 166.250(1)(b) in which “knowingly” does not
modify “concealed.” Defendant argues that the alternative
instruction that he requested in the trial court would have
prevented that error by more clearly indicating that “knowingly” modifies “concealed.”
         We conclude that no error occurred. The trial court’s
instruction was legally correct (as defendant concedes), differs from defendant’s requested instruction only minimally,
and does so regarding a subject—the requisite mental state
of “knowingly”—that was not at issue under defendant’s theory of the case. We ordinarily presume that jurors correctly
follow their instructions, see State v. Smith, 

,

 (1990) (“[J]urors are assumed to have followed
their instructions, absent an overwhelming probability that
they would be unable to do so.”), leading us to presume here
that the jurors followed the given instruction by applying
ORS 166.250(1)(b) in the same way that they would have
applied the statute under defendant’s proposed instruction.
See Klutschkowski v. PeaceHealth, 

, 

 (2013) (trial court’s refusal to give party’s requested
instruction is not reversible error “if the substance of the
requested instruction, even if correct, was covered fully by
other jury instructions given by the trial court” (internal
quotation marks omitted)).
        The decision of the Court of Appeals and the judgment of the circuit court are affirmed.