STATE v. SHAW (2021)

Defendant was charged with unlawful possession of a firearm, ORS 166.250, based on an allegation that he unlawfully and knowingly possessed a handgun that was concealed and accessible in a vehicle. Before trial, the parties disagreed about the definition of the word “concealed” and how the jury ultimately would be instructed on that point. That disagreement arose out of our decision in State v. Harrison, 292 Or. App. 232, 423 P.3d 736 (2018) (Harrison I), which was pending before the Supreme Court at the time. 363 Or. 728, 429 P.3d 390 (2018). In Harrison I, we had held that a firearm is “concealed” if it is hidden from view or placed out of sight, and that the evidence in that case was sufficient to support a finding “that the gun was shielded from the vision or notice of a person approaching the driver from outside the vehicle.” 292 Or. App. at 237, 423 P.3d 736.

The state expressed its intent to request a special instruction based on Harrison I, telling the jury that the term concealed “includes where a handgun is placed so as to shield or hide it from vision or notice of a person approaching the driver from the outside of the vehicle.” Defendant filed a motion asking the court to reject our formulation in Harrison I and the state's proposed definition, because, among other things, the definition would be too expansive depending on the direction from which a person approached the driver. The court denied defendant's motion, explaining that Harrison I “looks on appeal to the Supreme Court, but right now this would be the valid case law on this statute. And so the Court would need to apply that.”

Defendant thereafter entered a conditional plea of no contest, reserving his right to challenge on appeal the trial court's pretrial ruling adopting the reasoning in Harrison I. See ORS 135.335(3) (with consent of the court and the state, a defendant may enter a guilty or no-contest plea that reserves the right to appellate review of an adverse ruling on a specified pretrial motion).

Defendant exercised that right to appellate review and, in the meantime, the Supreme Court decided State v. Harrison, 365 Or. 584, 589, 450 P.3d 499 (2019) (Harrison II). In that decision, the Supreme Court refined our definition of the term “conceal,” accounting for the manner in which the driver is approached:

“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.”

Id. at 589, 450 P.3d 499 (emphasis added).

The trial court's pretrial ruling that it would apply Harrison I was, of course, correct at the time. In light of Harrison II, however, it would now be wrong to apply Harrison I, entitling defendant to reversal of the court's ruling. See State v. Ulery, 366 Or. 500, 503, 464 P.3d 1123 (2020) (appellate courts will reverse based on the law at the time of the appellate decision, even though the trial court did not make a mistake in applying then-existing law). We therefore reverse and remand so that defendant can elect whether to withdraw his plea. See ORS 135.335(3) (“A defendant who finally prevails on appeal may withdraw the plea.”).

Reversed and remanded.

PER CURIAM