State v. Abram

Under ORS 166.250, a firearm carried in belt holster is not “concealed” and the State must prove beyond a reasonable doubt that the defendant was not carrying a firearm openly in a belt holster.

Defendant appealed a conviction for unlawful possession of a firearm. Police Officer stopped Defendant’s car, searched his person, and found a gun in a belt holster. Police Officer testified that he did not see the gun in its belt holster because it was tucked under Defendant’s shirt. Defendant claimed it was openly worn on his belt holster. Defendant requested at trial that the jury be instructed that the State had to prove beyond a reasonable doubt that the gun was not being carried openly in Defendant’s belt holster. Defendant based this argument on the structure of the statute, which makes the definition of “concealed” an element necessary to prove that the crime of unlawful possession of a firearm has been committed. The State argued that the burden of proof that the firearm was carried openly in a belt holster fell on the Defendant, as it was an affirmative defense. The Court held that the trial court committed plain error in not instructing that the State had to prove beyond a reasonable doubt that the gun was not being carried openly in Defendant’s belt holster. Reversed and remanded.