State v. Leake ( 2023 )

No. 144 March 29, 2023 1
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
NICHOLAS JAMES GODDARD LEAKE,
Defendant-Appellant.
Tillamook County Circuit Court
19CR66602; A174457
Mari Garric Trevino, Judge.
Argued and submitted May 4, 2022.
Peter G. Klym, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Mark E. Seepe, Jr., Assistant Attorney General, argued
the cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
E. Nani Apo, Assistant Attorney General.
Before Shorr, Presiding Judge, and Pagán, Judge, and
Armstrong, Senior Judge.
SHORR, P. J.
Affirmed.
2 State v. Leake
SHORR, P. J.
In this criminal appeal, defendant challenges his
conviction for unlawful possession of a firearm (Count 3),
ORS 166.250.1 He contends that the trial court (1) erred in
denying his motion for judgment of acquittal (MJOA) on
Count 3 and (2) plainly erred by failing to instruct the jury
with respect to Count 3 “that a firearm openly carried in a
holster is not concealed” for purposes of ORS 166.250(1). We
reject defendant’s second assignment of error with limited
discussion: That assignment of error is unpreserved, and,
even if it met the requirements for plain-error review—a
matter we do not decide—we would not exercise our discre-
tion to consider it. See ORAP 5.45(1) (appellate court may,
in its discretion, consider an unpreserved claim of error
if the error is plain); State v. Vanornum, 354 Or 614, 630,
317 P3d 889 (2013) (appellate court discretion to consider
plain error “entails making a prudential call that takes into
account an array of considerations, such as the competing
interests of the parties, the nature of the case, the gravity
of the error, and the ends of justice in the particular case.”);
id. at 630-31 (“Ultimately, a decision to review a plain error
is one to be made with the ‘utmost caution’ because such
review undercuts the policies served by the preservation
doctrine.” (Quoting Ailes v. Portland Meadows, Inc., 312 Or
376, 382, 823 P2d 956 (1991)). With respect to defendant’s
first assignment of error, as we explain below, because a
reasonable juror could find on this record that defendant
was not carrying the firearm openly in a belt holster, the
court did not err in denying his MJOA. Accordingly, we
affirm.
1
ORS 166.250 provides, in part:
“(1) Except as otherwise provided in this section or [other statutes not
relevant here], a person commits the crime of unlawful possession of a fire-
arm if the person knowingly:
“(a) Carries any firearm concealed upon the person;
“* * * * *
“(3) Firearms carried openly in belt holsters are not concealed within the
meaning of this section.”
Defendant was also convicted of driving under the influence of intoxicants
(Count 1) and reckless driving (Count 2). He does not challenge those convictions
on appeal.
Cite as 325 Or App 1 (2023) 3
In reviewing the trial court’s denial of an MJOA,
we view the facts in the light most favorable to the state,
drawing all reasonable inferences in the state’s favor. State
v. Connelly, 298 Or App 217, 218, 445 P3d 940 (2019). When
the trial court’s denial of an MJOA turns on the construc-
tion of a statute, we review the court’s construction for legal
error. State v. Ritter, 280 Or App 281, 285-86, 380 P3d 1160
(2016). The ultimate question is “whether any rational trier
of fact, accepting reasonable inferences and making rea-
sonable credibility choices, could have found the essential
elements of the crime beyond a reasonable doubt.” State v.
Lupoli, 348 Or 346, 366, 234 P3d 117 (2010). We state the
facts with those principles in mind.
After having two or three drinks at a bar, defen-
dant got into his car and drove to buy a pack of cigarettes.
On his way to the store, he struck a guardrail and crashed
his car off the shoulder of the road. It was around 2:00 a.m.
Deputy Mayne arrived at the scene and found defendant in
the passenger seat of a different car. Mayne was wearing a
body camera. Mayne asked defendant to get out of the car
and talk to him. As defendant got out of the car, he lifted his
sweatshirt to reveal a holstered handgun and asked Mayne,
“[D]o you want to take that off of me?” Mayne testified that
he did not see the gun before that. Footage from Mayne’s
body camera as well as still photographs from that footage
were admitted into evidence at trial. Mayne testified that
the gun was “mostly black” and that defendant was wear-
ing a black sweatshirt with dark pants. He further testified,
“[I]mmediately I saw the gun as he pulled his jacket up. So
once he pulled it up, I saw that he had a gun on his belt. Or
his sweater.”2 He also testified that the gun was in a belt
holster. Defendant told Mayne that he did not have a con-
cealed carry permit.3 Mayne arrested defendant for DUII.
In addition to the driving-related charges, defendant was
charged with unlawful possession of a firearm.
2
Defendant’s outerwear is variously referred to as a sweatshirt and a
sweater.
3
See ORS 166.260(1)(i) (ORS 166.250 does not apply to “[a] person who is
licensed under ORS 166.291 and 166.292 to carry a concealed handgun”); ORS
166.260(4) (exception listed in subsection (1)(i) is an affirmative defense to a
charge of violating ORS 166.250).
4 State v. Leake
At trial, after the state rested, defendant moved for
an MJOA on all the charges. With respect to the unlawful
possession of a firearm charge, defense counsel pointed out
that defendant had immediately identified the firearm to
the officer, he made no effort to hide it, and the firearm was
located in a belt holster, as the officer admitted. Quoting
ORS 166.250(3), defendant argued that the charge there-
fore failed as a “pure matter of law.” The state responded
that defendant was not “carrying openly” in a belt holster
because the evidence demonstrates that he had to pull his
sweatshirt up to show the actual firearm.
The trial court denied defendant’s motion, reasoning:
“The carrying concealed, there is no doubt that he had a
firearm. The question is whether there is enough evidence
that it was concealed. So obviously there is no evidence of
what it was like in the car before he chose to get out. But
when he chose to get out, the video clearly shows him hav-
ing to raise his sweatshirt in order to show the officer the
firearm, which obviously was the appropriate thing to do
when encountering an officer, is to tell them you have a gun.
“But there is recorded evidence of him having to lift an
item of clothing to disclose that he had a firearm. So I think
the jury could find that it was concealed when he talked to
the officer. And the fact that he immediately had to—knew
to lift his shirt. And I don’t know what his shirt was like
in the car before that. Maybe he was open carrying. But at
least during the interactions with the officer, there is evi-
dence to show it was concealed.”
As part of his case, defendant presented testimony from
his mother that, whenever she saw defendant wearing the
gun, it was in a holster on his hip. The jury found defendant
guilty of all charges, and he now appeals. As noted, he con-
tends that the trial court erred in denying his MJOA on the
unlawful possession of a firearm charge.
Before discussing the parties’ arguments on appeal,
we first note what is and what is not at issue in this case.
First, the sufficiency of the state’s proof as to the “know-
ingly” element of the offense is not before us.4 Second, it is
4
Defendant does not advance any argument in that regard on appeal,
understandably so, given that the issue was not raised in support of his MJOA
below. See State v. Rennells, 213 Or App 423, 430, 162 P3d 1006 (2007) (issue
Cite as 325 Or App 1 (2023) 5
undisputed that defendant was carrying a firearm and that
he carried it in a belt-holster on his person. Third, as noted,
defendant did not request the court to instruct the jury that
a firearm carried openly in a belt holster is not concealed,
ORS 166.250(3), and we have declined to consider the court’s
failure to sua sponte do so as plain error. Nonetheless, ORS
166.250(3) informs the meaning of “concealed” for purposes
of defining the offense. See State v. Abram, 273 Or App 449,
455, 359 P3d 431 (2015) (explaining that subsection (3)
“defines the contours of” and “provides a necessary ingredi-
ent of” the definition of the offense, because “[t]he definition
of the term ‘concealed’ cannot be satisfied by a firearm that
is carried openly in a belt holster” (internal quotation marks
omitted)); id. at 455-56 (whether subsection (3) is an element
or a properly raised defense, the state must prove beyond a
reasonable doubt that the firearm was not carried openly in
a belt holster).
Consequently, the question on appeal reduces to
whether a reasonable factfinder could find that the firearm
was “concealed upon [defendant’s] person,” ORS 166.250
(1)(a), considering that a firearm “carried openly in [a] belt
holster[ is] not concealed” for purposes of the offense, ORS
166.250(3) (emphasis added). As the parties’ recognize, that,
in turn, requires us to determine the meaning of the phrase
“carried openly in [a] belt holster[ ],” in particular, the words
“carried openly.”
Defendant argues that, under existing case law, the
statutory phrase “carried openly in [a] belt holster[ ]” means
that “a weapon carried in a holster, even if it is partially
obscured by a person’s clothing is ‘openly carried’ and is not
concealed for purposes of [ORS 166.250] so long as it is par-
tially visible at some time from some perspective.” And, he
contends, because part of the firearm was visible from the
perspective of Mayne’s body camera before defendant lifted
his sweatshirt, “the gun was not ‘concealed’ even if the
weapon was obscured by defendant’s clothing in the split-
second before he raised his sweatshirt to make the weapon
even more visible to Mayne.”
unpreserved where counsel’s argument in support of MJOA did not “cogently
alert the trial judge and opposing counsel to the substance of the position” argued
on appeal (internal quotation marks and brackets omitted)).
6 State v. Leake
The state refutes defendant’s construction of the
phrase “carried openly”; in the state’s view, subsection (3)
was intended to make clear that, “when a firearm is car-
ried in a belt holster and is technically concealed by that
belt holster, but is nevertheless recognizable as a firearm
to a person exercising an everyday level of observation, that
firearm is not ‘concealed’ for purposes of ORS 166.250.” And,
the state contends, defendant’s photographic evidence “does
not compel the conclusion that a person exercising everyday
scrutiny would have recognized the gun as a firearm,” thus,
“a rational fact finder could reasonably find that defendant
was not ‘openly carrying’ the firearm in a belt holster.” As
explained below, we conclude, based on the text, context, and
legislative history of the concealed-firearms statute, that
the state’s understanding of subsection (3) is correct, that
is, that the phrase “carried openly in [a] belt holster[ ]” was
intended only to clarify that a firearm that is obscured by
the holster itself is not concealed for purposes of the statute.
In construing a statute, we discern the legislature’s
intention by considering the statute’s text and context, as
well as any helpful legislative history. State v. Gaines, 346
Or 160, 171-72, 206 P3d 1042 (2009). “Statutory context
includes prior opinions interpreting the statute, as well as
other provisions of the same or related statutes.” State v.
Bluel, 285 Or App 358, 362, 397 P3d 497 (2017).
Before considering the belt-holster exception, we
turn first to what the legislature intended by the word “con-
cealed” for purposes of the statute. The Supreme Court con-
fronted that question in State v. Harrison, 365 Or 584, 450
P3d 499 (2019), specifically with respect to ORS 166.250
(1)(b), which provides that the crime of unlawful possession
of a firearm is committed by knowingly possessing a hand-
gun “that is concealed and readily accessible to the person
within any vehicle.” Id. at 586.
Pointing to the ordinary meaning of the word, the
Supreme Court explained that an object is “presumably
‘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.”
Cite as 325 Or App 1 (2023) 7
Id. at 590. The court then turned to the history of Oregon’s
concealed-weapons laws as context to further understand
what the legislature intended by the word “concealed” in
ORS 166.250. Id. at 591. Notably for our purposes here, the
court relied heavily on the legislature’s 1925 enactment of
the belt-holster exception for that understanding, although
subsection (3) was not directly at issue in Harrison.
Reiterating the evolution of Oregon’s concealed-
weapons law discussed in State v. Briney, 345 Or 505, 200
P3d 550 (2008), the court considered it significant that the
belt-holster exception was enacted against a backdrop of
what had been until then a complete ban on the possession
of concealed weapons and therefore “shed light on what the
statute was intended to do.”5 Harrison, 365 Or at 591 (citing
Briney, 345 Or at 513-16; General Laws of Oregon, ch 260,
§ 5 (1925)). As the court had previously explained in Briney,
by enacting that exception, the legislature evidenced a pol-
icy rationale “ ‘aimed at providing notice to those who may
come into contact with an individual carrying a firearm.’ ” Id.
(quoting Briney, 345 Or at 516 (emphasis in Harrison)). The
court reasoned, in part:
“ ‘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 excep-
tion for firearms carried openly in a holster.’ ”
Id. (quoting Briney, 345 Or at 516).
Importantly, the court explained that “[t]he 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.” Id. at 592. And, the
court observed, the law’s public safety purpose “further sug-
gests that an individual ‘who may come into contact with’
5
That enactment was virtually identical to what is now ORS 166.250(3). It
provided, in part, that “ ‘[f]irearms carried openly in belt holsters shall not be
deemed to be concealed within the meaning of the section.’ ” Harrison, 365 Or at
591 (quoting General Laws of Oregon, ch 260, § 5 (1925)).
8 State v. Leake
the possessor of a handgun should not need to engage in
heightened observation to notice the gun.” Id.
The court expressly rejected the state’s proposed
meaning 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,’ ” because that
definition “lack[ed] a meaningful limiting principle.” Id. at
593. The court thus concluded that a handgun is “concealed”
in a vehicle for purposes of the statute if the placement of
the gun would fail to “give reasonable notice of the gun’s
presence, through ordinary observation, to a person coming
into contact with the occupants of the vehicle and commu-
nicating in the manner typical of such a contact—such as
through an open window.”6 Id. at 593-94 (footnote omitted).
Nothing in the text or context of the statute sug-
gests that a different definition of “concealed” should apply
for purposes of the specific provision at issue here—ORS
166.250(1)(a)—which is part of the same statute (indeed
the same subsection of the statute) as that construed in
Harrison. In other words, we find no reason to depart from
the ordinary presumption “that the legislature intended
words enacted as part of the same statute to have the same
meaning throughout that statute.” Comcast Corp. v. Dept.
of Rev., 363 Or 537, 546, 423 P3d 706 (2018). We therefore
understand the meaning of “concealed” for purposes of ORS
166.250(1)(a) to be consistent with what the court instructed
in Harrison—a firearm is “concealed” if it fails to “give
reasonable notice of the gun’s presence, through ordinary
observation, to a person coming into contact with [the per-
son carrying the firearm] and communicating in the man-
ner typical of such a contact.” 365 Or at 593-94.
With that in mind, we turn back to the belt-holster
exception in subsection (3), beginning with the text itself.
See Gaines, 346 Or at 171 (in construing a statute, “text and
6
Under that understanding of the statute, the court concluded that the
state’s 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,” the pocket was located below the level of the driver’s seat, and the
gun would not have been visible from outside the car when the door was closed—
was sufficient to support a finding that the gun was concealed, and it therefore
affirmed the trial court’s denial of the defendant’s MJOA. Id. at 594-95.
Cite as 325 Or App 1 (2023) 9
context remain primary, and must be given primary weight
in the analysis”). Again, ORS 166.250(3) provides that “[f]ire-
arms carried openly in belt holsters are not concealed
within the meaning of this section.” The key phrase is “car-
ried openly in belt holsters,” in particular, the word “openly.”
Because it is not defined in the statute, we look to the plain
meaning of the term, typically by consulting dictionary defi-
nitions. Zweizig v. Rote, 368 Or 79, 87, 486 P3d 763 (2021).
In doing so, “it is important to use sources contemporaneous
with the enactment of the statute.” Comcast Corp. v. Dept.
of Rev., 356 Or 282, 296 n 7, 337 P3d 768 (2014); see also
State v. Leslie, 204 Or App 715, 719, 132 P3d 37, rev den,
341 Or 245 (2006) (consulting 1920s era dictionaries in
construing meaning of “place of residence” in ORS 166.250
(2)(b), enacted in the same bill as ORS 166.250(3)). The 1921
edition of Webster’s New International Dictionary indicates
that the adverb “openly” was obsolete. Webster’s New Int’l
Dictionary 1507 (1921). However, that edition also includes
the reference, “See -LY,” which, the dictionary informs, “is
sometimes given as the only definition of a word ending in -ly,
if its meaning can readily be gathered from the definitions
of the suffix and the root word.”7 Id. at 1507, 1287; see also
id. at 1287 (“-ly” is “[a] suffix forming adverbs from adjec-
tives, participles, and (rarely) nouns ; as in slowly, badly,
smilingly, unexpectedly, partly”). The most pertinent defini-
tion of the adjective “open” was “[un]covered or unprotected ;
not concealed or hidden ; exposed ; bare.” Id. at 1506.8
Defendant argues that the plain meaning of “openly”
is therefore not helpful.9 In his view, “carried openly in a belt
holster” must mean something different than “not concealed
in a belt holster,” otherwise, ORS 166.250(3) is rendered
meaningless. See State v. Stamper, 197 Or App 413, 418, 106
P3d 172, rev den, 339 Or 230 (2005) (“As a general rule, we
assume that the legislature did not intend any portion of
7
The 1935 edition reflects the same. Webster’s New Int’l Dictionary 1706
(unabridged ed 1935).
8
Today’s meaning is similar: The adverb “openly” means “in an open man-
ner : freely and without concealment.” Webster’s Third New Int’l Dictionary 1580
(unabridged ed 2002).
9
Defendant relies on the current definition of the word. See 325 Or App at 9
n 8.
10 State v. Leake
its enactments to be meaningless surplusage.” (Citing ORS
174.010; Bolt v. Influence, Inc., 333 Or 572, 581, 43 P3d 425
(2002).)). Essentially, we understand defendant to contend
that “concealed” must mean something different when a
firearm is holstered than when it is not, therefore, “carried
openly” must be understood to mean something different
than what its ordinary meaning conveys.
We disagree that, as a textual matter, subsection (3)
necessarily becomes superfluous if we utilize the plain
meaning of “openly.” As the state points out, the phrase
instead can be understood simply to mean that a firearm
carried in a belt holster that is concealed or obscured by
the holster itself—as would typically be the case in that
circumstance—is not concealed for purposes of the statute.
In other words, applying the ordinary meaning of “openly,”
the enacting legislature could easily have intended the
phrase “carried openly in a belt holster” to mean that the
firearm is “uncovered” or “exposed,” and not “concealed” or
“hidden,” by the fact of the holster itself. That reading of
subsection (3) harmonizes and gives meaning to all of the
provisions of the statute, as we are obligated to do where
possible. See ORS 174.010.
Turning next to context, defendant argues that our
prior case law supplies a different meaning of “concealed”
that, in his view, applies with respect to holstered weapons—
specifically, that a weapon is “carried openly” in a belt hol-
ster and therefore not concealed as long as it is “partially vis-
ible at some time from some perspective.” (Emphasis added.)
He asserts that we have “repeatedly found that weapons
that are only partially visible or visible under some circum-
stances may constitute being ‘openly carried’ when in a belt
holster,” whereas “weapons that are similarly only partially
visible or visible from some perspectives may be concealed
when they are not in a belt holster.” (Emphasis in defen-
dant’s brief.)
Again, we disagree. As we explain below, defendant’s
attempt to tease from our case law a different understand-
ing of “concealed” where a weapon is holstered overstates
that law and is inconsistent with the legislative intention
behind Oregon’s concealed-weapons law.
Cite as 325 Or App 1 (2023) 11
Defendant first points to Abram. The issue there
was whether the trial court erred in failing to give the
defendant’s requested jury instruction that the state must
prove beyond a reasonable doubt that a firearm was not car-
ried openly in a belt holster as provided in ORS 166.250(3).
Abram, 273 Or App at 450. We concluded that, even if sub-
section (3) constitutes a defense that the state must dis-
prove only where the defendant raises it (rather than an ele-
ment that the state must prove in all cases), the defendant
was entitled to the instruction because he raised the hol-
ster issue by affirmative evidence during his case-in-chief.
Id. at 455-56. Thus, we concluded, the instruction was a cor-
rect statement of the law and supported by the evidence.
At trial, the state presented evidence that the dep-
uty who stopped the defendant in his car did not see the gun
until he “got up close” to the defendant and that the gun was
under the defendant’s clothing. Id. at 450. The defendant
presented evidence that he wore the holster on his belt and
that his shirt was tucked behind the gun at his waist when
he got into the car that day and also when he got out. Id. at
450-51. Abram simply held that that evidence, viewed in the
light most favorable to the defendant—including, as noted,
the evidence that the defendant’s shirt was tucked behind
the gun at his waist—was sufficient to raise the belt-holster
issue as a defense, such that he was entitled to his requested
jury instruction. It did not purport to define what the legis-
lature meant by the phrase “carried openly,” nor did it hold
that a firearm that was only partially visible or only visible
at some angles constituted being “carried openly” because it
was in a belt holster.
Defendant also relies on State v. Johnson, 96 Or
App 166, 772 P2d 426 (1989), which involved the legality of
a search that resulted in the discovery of drugs. While the
officer was talking with the defendant, who was a passenger
in a car, he saw a knife sheath partially covered by the defen-
dant’s jacket and reasonably suspected that the defendant
might be carrying a concealed weapon. Id. at 168; see ORS
166.240(1) (making it unlawful to carry concealed, certain
knives and other weapons). The officer removed the defen-
dant from the car, seized the knife, and patted him down,
12 State v. Leake
resulting in the later discovery of drugs and drug parapher-
nalia. The officer testified that the defendant was wearing a
short leather jacket and carrying a knife in a sheath on his
belt. Id. at 169. Noting ORS 166.250(3), we observed, “Like
a gun in a holster, a knife carried openly in a sheath on the
belt is not ‘concealed.’ ” Id. Thus, “[o]nce the officer discov-
ered that defendant carried his knife openly in a sheath at
his waist, he no longer had reasonable suspicion, let alone
probable cause, to suspect defendant of wrongdoing,” and
the subsequent arrest and search were illegal. Id.
According to defendant, Johnson thus holds “that
a knife in a belt sheath that was partially obscured by the
defendant’s clothing was not concealed.” That is overstating
the holding in the case: Johnson did not consider the ques-
tion whether the knife was concealed at the point where it
was partially covered by the defendant’s jacket; at most, that
part of the opinion suggests that a weapon in a sheath but
partially obscured by clothing could be a concealed weapon,
sufficient to establish reasonable suspicion of a crime.
Id. at 169 (the officer’s ‘stop and frisk’ procedure was justi-
fied by the officer’s reasonable suspicion that the defendant
had violated ORS 166.240(1)). Johnson holds only that the
defendant was not carrying concealed once he got out of the
car. And, at that point, we highlighted the officer’s testi-
mony that the defendant “wore a short leather jacket and
carried a knife in a sheath on his belt,” thus suggesting that
the knife in its sheath was not concealed by his clothing. Id.
In doing so, we also distinguished State v. Walton,
18 Or App 603, 526 P2d 458 (1974), in which the defendant
carried a buck knife in a scabbard attached to the defen-
dant’s belt, which was concealed beneath his coat. Reversing
the trial court’s grant of the defendant’s motion to suppress,
we held that, having felt a hard object beneath the defen-
dant’s coat, the officer had reasonable suspicion that the
defendant was carrying a concealed weapon, and, once the
officer found that the defendant “was, in fact, carrying a
concealed weapon, the officer could continue the search.” Id.
at 606. Contrary to defendant’s view, that suggests that a
weapon carried in a holster is not carried “openly” if it is
concealed by clothing.
Cite as 325 Or App 1 (2023) 13
In sum, we do not understand our prior case law
to provide justification for defendant’s proposed rule—that
a weapon is “carried openly” in a belt holster—and, thus,
by definition, not concealed—as long as it is “partially visi-
ble at some time from some perspective.”10 We further note
that, like the state’s purported definition of “concealed” in
Harrison, defendant’s proposed meaning for “carried openly”
“lacks a meaningful limiting principle.” 365 Or at 593.
Having rejected defendant’s argument that the
statute’s context leads to his proposed understanding of the
belt-holster exception, we still must determine the legisla-
ture’s intention with respect to the meaning of that provi-
sion. Legislative history is often helpful; however, in this
case, legislative records from the 1925 enactment of the
belt-holster provision are not available. See, e.g., State v.
Rainoldi, 351 Or 486, 499, 268 P3d 568 (2011) (noting that
legislative records with respect to Oregon’s early firearms
laws, including General Laws of Oregon, chapter 260 (1925),
“literally went up in smoke with the burning of the state
capitol in 1935”).
But, as the court recognized in Harrison, we can
glean the intention behind the statute from its historical
context. 365 Or at 591. And, as discussed in detail above,
the enactment of the belt-holster provision in 1925 reveals
that the legislative purpose behind the concealed-firearms
statute as a whole, including that provision, was to “giv[e]
notice of weapons’ presence, to effectuate public safety,” and
10
Although recognizing that it is not “dispositive,” defendant also refer-
ences State v. Fisher, 100 Or App 149, 151, 785 P2d 369, rev den, 309 Or 522(1990), as support for his position. In Fisher, the trial court determined that ORS
166.250(3) does not apply when a person is in an automobile, and it denied the
defendant’s MJOA for unlawful possession of a firearm for that reason. Id. at
152. We disagreed, concluding that “the plain language of ORS 166.250 does not
make it unlawful for a person to carry a firearm openly in a belt holster, whether
or not the person is riding in a motor vehicle,” and the trial court therefore erred
in denying the MJOA on that basis. Id. However, because there was “other evi-
dence of concealment”—most likely referring to evidence that the defendant had
removed the gun from his belt holster and placed it under the seat—we affirmed.
Id. Defendant contends that Fisher thus “demonstrates that ‘openly carried in
a belt holster’ means something different than ‘not concealed in a belt holster’
because a gun worn in holster while a driver is seated in his vehicle is necessarily
not going to be visible from the outside of the vehicle.” Suffice it to say that we
disagree with both defendant’s factual premise as well as the conclusion that he
attempts to draw from it.
14 State v. Leake
the specific category of persons the legislature intended to
protect was “individuals who may come into contact with a
person carrying a gun.” Id. at 592 (internal quotation marks
omitted). Moreover, the public safety policy underlying the
statute “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.”
Id. (internal quotation marks omitted).
Given that clear and specific legislative purpose
behind the concealed-firearms law in general, we would not
expect the legislature, in enacting subsection (3), to have
intended to make it easier for a person to keep a firearm
from public view and remain within the parameters of the
law. We thus conclude, consistent with the plain meaning
of “openly” and the legislative policy reflected in the enact-
ment of subsection (3), that “carried openly in a belt holster”
was intended to convey only that a firearm is not “concealed”
simply by virtue of the fact that it is contained in—and
thus covered by—a belt holster. Otherwise, the analysis of
whether a firearm is “concealed” under Harrison remains
the same. That is, consistent with Harrison, a firearm is
carried “openly” in a belt holster, and therefore, not “con-
cealed” within the meaning of ORS 166.250(1), if it gives
reasonable notice of the firearm’s presence to a person exer-
cising ordinary scrutiny when coming into contact with the
person carrying the firearm, even if the firearm is obscured
by the holster. In other words, a person carrying a firearm
in a belt holster is not carrying concealed for purposes of the
statute if the holster obscures the firearm, as long as the
holstered weapon is being carried openly—that is, it gives
reasonable notice of the firearm’s presence.
Finally, we must determine whether, under that
understanding of the statute—and viewing the facts and all
reasonable inferences in favor of the state, as we must—the
record compels the conclusion that defendant was not car-
rying a concealed weapon. In other words, we must deter-
mine whether every reasonable jury would be required to
conclude that defendant was “openly” carrying the firearm
in a belt holster and therefore necessarily not carrying a
concealed weapon within the meaning of ORS 166.250(1).
Cite as 325 Or App 1 (2023) 15
Having carefully reviewed the record through that
lens—in particular the body-camera footage and still photo-
graphs from that footage—we conclude that the trial court
did not err in denying defendant’s MJOA. The evidence
shows the presence of a dark object—what turned out to be
the handle of a firearm in a holster—barely visible below
defendant’s sweatshirt as he gets out of the car. However,
the contours of the object are masked by defendant’s dark
clothing. Nor is the holster itself reasonably discernible
from the footage and photos. Mayne testified that the gun
was “mostly black” and that defendant was wearing a black
sweatshirt with dark pants. It is not until defendant lifts
his sweatshirt that the object is necessarily recognizable as
a firearm contained in a holster. In short, a reasonable juror
could find from the evidence presented that a person exer-
cising ordinary scrutiny in a typical encounter with defen-
dant would not have had reasonable notice of the gun’s pres-
ence and, therefore, that it was not carried “openly” in a belt
holster.
Affirmed.