State v. Clemente-Perez

No. 36 September 17, 2015 745

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON

Respondent on Review,

v.

FERNANDO CLEMENTE-PEREZ,

Petitioner on Review.

(CC D104733M; CA A147753; SC S062407)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 10, 2015, at Lewis & Clark

Law School, Portland, Oregon.

Daniel C. Bennett, Deputy Public Defender, Salem,

argued the cause and filed the brief for petitioner on review.

With him on the brief was Peter Gartlan, Chief Defender,

Office of Public Defense Services.

Jona J. Maukonen, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on review.

With her on the brief was Ellen F. Rosenblum, Attorney

General, and Anna M. Joyce, Solicitor General.

BALDWIN, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Walters, J., dissented and filed an opinion, in which

Brewer J., joined.

______________

*  On appeal from Washington County Circuit Court, Rick Knapp, Judge. 261

Or App 146, 322 P3d 1082 (2014).

746 State v. Clemente-Perez

Case Summary: Defendant moved for judgment of acquittal on the count of

unlawful possession of a firearm, arguing that the state failed to prove that he

had been “within” his pickup truck, as that word is used in ORS 166.250(1)(b), at

the time that he took a handgun out of and later placed it back into an unlocked

storage compartment inside his truck. Alternatively, he argued that he met the

statutory “place of residence” exception under ORS 166.250(2)(b). The trial court

denied defendant’s motion, a jury convicted defendant, and the Court of Appeals

affirmed. Held: (1) a rational trier of fact could find beyond a reasonable doubt

that at least some portion of defendant’s body had been in the interior part of his

truck, and that defendant thus had been “within” his truck within the meaning

of ORS 166.250(1)(b); (2) the “place of residence” exception under ORS 166.250(2)

(b) applies to the house or other structure in which a person lives, and there was

no evidence in this case that defendant lived in his pickup truck or the area where

the truck was parked.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

Cite as 357 Or 745 (2015) 747

BALDWIN, J.

In this criminal case, defendant was convicted

of unlawful possession of a firearm. ORS 166.250. At the

close of the state’s case, defendant moved for judgment of

acquittal, arguing that the state had not presented suffi-

cient evidence that he had “[p]ossesse[d] a handgun that

is concealed and readily accessible to the person within

any vehicle,” within the meaning of ORS 166.250(1)(b).

Alternatively, defendant argued that he qualified for an

exception under ORS 166.250(2)(b), which provides that

a person may possess a handgun at the person’s “place of

residence.” The trial court rejected those arguments, and a

jury found defendant guilty. The Court of Appeals affirmed,

concluding that defendant failed to preserve his argument

that he had not been “within any vehicle” at the time that

he possessed a handgun, and that he did not meet the “place

of residence” exception.1 State v. Clemente-Perez, 261 Or App

1

ORS 166.250 provides, in part:

“(1)  Except as otherwise provided in this section * * *, 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; * * *

“* * * * *

“(2)  This section does not prohibit:

“* * * * *

“(b) Any citizen of the United States * * * from owning, possessing or

keeping within the person’s place of residence or place of business any hand-

gun, and no permit or license to purchase, own, possess or keep any such fire-

arm at the person’s place of residence or place of business is required of any

such citizen. As used in this subsection, ‘residence’ includes a recreational

vessel or recreational vehicle while used, for whatever period of time, as res-

idential quarters.

“* * * * *

“(4)(a) Except as provided in paragraph[ ] (b) * * * of this subsection, a

handgun is readily accessible within the meaning of this section if the hand-

gun is within the passenger compartment of the vehicle.

“(b)  If a vehicle * * * has no storage location that is outside the passenger

compartment of the vehicle, a handgun is not readily accessible within the

meaning of this section if:

“(A)  The handgun is stored in a closed and locked glove compartment,

center console or other container; and

“(B)  The key is not inserted into the lock, if the glove compartment, cen-

ter console or other container unlocks with a key.”

748 State v. Clemente-Perez

146, 322 P3d 1082 (2014). We allowed review, and, for the

reasons explained below, we affirm.

I. BACKGROUND

In reviewing a denial of a motion for judgment of

acquittal, we describe the pertinent facts and all reasonable

inferences that may be drawn from those facts in the light

most favorable to the state. State v. Walker, 356 Or 4, 6, 333

P3d 316 (2014). In this case, defendant’s son and estranged

wife went to defendant’s house to pick up his son’s backpack

before school. While defendant’s wife and son were at his

house, defendant heard his wife’s cell phone ring from inside

her car. Defendant retrieved her cell phone and saw that

another man had called. Angered, he went to his pickup

truck, which was parked under a stand-alone awning struc-

ture adjacent to the driveway of his house. He took out a

handgun from inside an unlocked storage compartment

underneath the back seat of the truck. He then walked to

the backyard and shot his wife’s cell phone, destroying it.

Afterward, he wrapped the gun in a towel and put it back

in the storage compartment underneath the back seat of his

truck. He then got into a different pickup truck and drove

away.

The state charged defendant with unlawful posses-

sion of a firearm, ORS 166.250, and second-degree criminal

mischief, ORS 164.354.2 After the state presented its case-

in-chief, defendant moved for judgment of acquittal on both

counts. The trial court denied the motion, and a jury found

defendant guilty of both charges.

Defendant appealed his conviction for unlawful pos-

session of a firearm only, assigning error to the trial court’s

denial of his motion for judgment of acquittal. He argued,

first, that the state had not presented sufficient evidence to

prove that he had been “within” his truck, within the mean-

ing of ORS 166.250(1)(b). Second, he argued that, even if the

state had presented sufficient evidence to support a convic-

tion under ORS 166.250(1)(b), he nevertheless was entitled

2

ORS 164.354 provides that a person commits the crime of second-degree

criminal mischief if, “[h]aving no right to do so nor reasonable ground to believe

that the person has such right, the person intentionally damages property of

another.” ORS 164.354(1)(b).

Cite as 357 Or 745 (2015) 749

to judgment of acquittal because he met the “place of resi-

dence” exception provided in ORS 166.250(2)(b).

Defendant acknowledged on appeal that the trial

court “did not expressly address [his] argument that the leg-

islature did not intend to criminalize possessing a concealed

weapon in a parked, unoccupied car when the weapon would

not be accessible to the driver.” The Court of Appeals agreed

with that assessment, concluding that the trial court rea-

sonably had not understood defendant to have made such an

argument:

“The trial court fairly understood that defendant was rais-

ing arguments that (1) he was entitled to a judgment of

acquittal under the ‘place of residence’ exception in ORS

166.250(2)(b)—the contention raised in defendant’s second

argument on appeal—and (2) he was entitled to a judgment

of acquittal because the state had failed to prove that the

gun was ‘readily accessible’ under ORS 166.250(1)(b) given

its location behind the driver’s seat in a compartment under

the rear seat. Neither of those arguments alerted the trial

court that defendant contended that ORS 166.250(1)(b)

requires proof that a person be within a vehicle when he

possesses a handgun.”

Clemente-Perez, 261 Or App at 152. The Court of Appeals

concluded that defendant had failed to preserve his argu-

ment that he had not been “within” his truck for purposes of

ORS 166.250(1)(b), and therefore did not address that argu-

ment further. Id.

The court rejected defendant’s remaining argu-

ment that he qualified for the “place of residence” exception

as provided in ORS 166.250(2)(b). Id. at 152-58. The court

noted that it had interpreted the “place of residence” excep-

tion in two prior cases: State v. Leslie, 204 Or App 715, 132

P3d 37, rev den, 341 Or 245 (2006); and State v. Wolf, 260 Or

App 414, 317 P3d 377 (2013). In Leslie, the court interpreted

the phrase “place of residence” to mean “the place where a

person actually lives, i.e., where he or she regularly eats,

drinks, and sleeps.” 204 Or App at 723 (holding that the

defendant’s truck was his “place of residence,” because the

defendant actually lived in his truck). In Wolf, the court con-

cluded that areas outside of a person’s residential structure

could be considered part of the person’s “place of residence,”

750 State v. Clemente-Perez

as long as there is evidence that the outdoor area is within

a defined “place” and as long as daily living activities are

conducted there. 260 Or App at 423-26 (holding that suffi-

cient evidence existed from which a rational factfinder could

find that defendant’s campsite was his “place of residence”).

Applying the principles established in Leslie and Wolf, the

Court of Appeals concluded that defendant had failed to

present any evidence that he used the area in which his

truck was located for daily living activities. Clemente-Perez,

261 Or App at 157. The court therefore determined that

defendant did not meet the “place of residence” exception

and was not entitled to judgment of acquittal on that basis.

Id. at 157-58.

On review, defendant contends that (1) the state

did not present sufficient evidence to support his conviction

under ORS 166.250(1)(b), because a person is not “within

any vehicle” for purposes of that statute unless the per-

son occupies the vehicle, and (2) even if sufficient evidence

existed to support a conviction under ORS 166.250(1)(b),

he was nevertheless entitled to judgment of acquittal under

the “place of residence” exception as provided in ORS

166.250(2)(b).

II. ANALYSIS

A.  Preservation

Before we address the parties’ substantive argu-

ments, however, we must first determine whether defendant

adequately preserved his argument under ORS 166.250(1)(b)

that he was not within his pickup truck at the time that

he possessed a handgun. As noted, the Court of Appeals

concluded that defendant had failed to preserve that argu-

ment. Clemente-Perez, 261 Or App at 152. In the court’s

view, defendant had made only two arguments in the trial

court regarding his entitlement to judgment of acquittal on

the unlawful possession count: (1) that he met the “place

of residence” exception; and (2) that the handgun had not

been “readily accessible” under ORS 166.250(1)(b) given

its location underneath the backseat of the truck. Id. at

150-52. Our review of the record, however, indicates that

defendant did, in fact, make a third argument, calling into

question the sufficiency of the evidence that he had been

Cite as 357 Or 745 (2015) 751

“within any vehicle” when he possessed the handgun. ORS

166.250(1)(b).

Defendant began his argument on his motion by

stating, “I’m hoping to organize this in a fashion, first I

believe this statute is contemplating that this car is being

driven or that it is out on some kind of public highway or

road open to the public, a public premises, not just some-

body’s car on their property and—.” (Emphasis added.) The

trial court interjected, engaging defendant in a lengthy dis-

cussion about the “place of residence” exception. Defendant

later attempted to return to his argument regarding ORS

166.250(1)(b), stating that “we have that this readily acces-

sible, * * * it’s contemplating that somebody’s in the car

readily accessible, it’s not just that somebody can approach

the car and readily access this gun[.]” (Emphasis added.)

At that point, the court told defendant, “You know I can

tell you right now I’m going to deny your motion based on

readily accessible because I think it’s really a question of

fact for the jury.” Defendant persevered, however, pointing

out that

“the statute does specifically say that [the handgun] must

be readily accessible to a person within the vehicle. We

have someone who’s never driving the vehicle[,] he just

approaches it and leaves it[.] [U]nder this State’s interpre-

tation the trunk is readily accessible. Everything’s readily

accessible because you’re just walking up to a stopped car

on your personal property.”

(Emphasis added.)

Further, defendant argued that, under ORS

166.250(1)(b), “readily accessible within a vehicle to the

person has [the] understanding that they have to be able

to access it while they’re within the vehicle, not that they

can just approach a vehicle.” (Emphasis added.) The court

replied, “[M]y point is that you can also visualize a scenario

where * * * a person is driving the truck and he stops and

pushes the seat forward and gets in the backseat and does

all that and they’re within the vehicle.” (Emphasis added.)

Ultimately, the court denied the motion, determining that,

“with regard to readily accessible, * * * there’s enough infor-

mation for it to go to the jury.”

752 State v. Clemente-Perez

As a general rule, appellate courts will not con-

sider claims of error that were not raised in the trial court.

State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000); see ORAP

5.45(1) (“No matter claimed as error will be considered on

appeal unless the claim of error was preserved in the lower

court[.]”). To adequately preserve an issue, “a party must

provide the trial court with an explanation of his or her

objection that is specific enough to ensure that the court can

identify its alleged error with enough clarity to permit it to

consider and correct the error immediately, if correction is

warranted.” Wyatt, 331 Or at 343. This court has explained

that the primary purposes of the preservation rule are to

allow the trial court to consider a contention and correct any

error, to allow the opposing party an opportunity to respond

to a contention, and to foster a full development of the record.

Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008).

This court also has cautioned, however, that problems “may

arise if the preservation onion is sliced too thinly.” State

v. Amaya, 336 Or 616, 629, 89 P3d 1163 (2004). Thus, the

question whether an argument has been preserved “inev-

itably will turn on whether, given the particular record of

a case, the court concludes that the policies underlying the

[preservation] rule have been sufficiently served.” State v.

Parkins, 346 Or 333, 341, 211 P3d 262 (2009).

We conclude that our preservation policies have

been served in this case. Defendant noted at the beginning

of his motion for judgment of acquittal that he “hop[ed] to

organize” his motion to cover each of his arguments. In

light of the questions that the trial court asked, however,

defendant spent the bulk of his time addressing the “place of

residence” exception and did not elaborate on his argument

regarding ORS 166.250(1)(b). See State v. Walker, 350 Or

540, 550, 258 P3d 1228 (2011) (noting that “the realities of

trial practice may be such that fairly abbreviated short-hand

references suffice to put all on notice about the nature of a

party’s arguments”). Indeed, the court expressly informed

defendant that it would deny any motion based on the “read-

ily accessible” provision of the statute—of which the phrase

“within any vehicle” is a part—because the court believed

that the jury should decide that question. Despite the court’s

indication that it was unwilling to entertain defendant’s

Cite as 357 Or 745 (2015) 753

argument that the handgun had not been “readily accessible

to the person within any vehicle,” defendant persevered in

making that argument. He argued, for example, that ORS

166.250(1)(b) requires that a person be “driving the vehicle”;

“in the car”; and that the person must be able to access the

handgun “while [the person is] within the vehicle, not that

[the person] can just approach a vehicle.” (Emphases added.)

We think those arguments sufficed to alert the trial

court to defendant’s argument that ORS 166.250(1)(b) requires

a person to be within a vehicle at the time that he or she pos-

sesses a concealed, readily accessible handgun. Although

defendant may not have presented his argument with perfect

clarity, we conclude that he provided sufficient information to

enable the prosecutor to respond and for the trial court to con-

sider the argument and correct any error.3 See Walker, 350 Or

at 550 (“The fact that the level of detail or thoroughness with

which a party articulates a position may leave something to

be desired does not mean that it was insufficient to serve the

rule of preservation’s pragmatic purposes.”).

B.  Possession of Handgun “Within” a Vehicle

Having concluded that defendant adequately pre-

served his argument under ORS 166.250(1)(b) that he had

not been “within” a vehicle, we now turn to the merits of that

argument. Whether defendant possessed a concealed handgun

that was “readily accessible to the person within any vehicle”

within the meaning of ORS 166.250(1)(b) is a question of stat-

utory interpretation. We therefore apply our familiar interpre-

tive methodology, examining the statute’s text, context, and

relevant legislative history, as well as any applicable maxims

of statutory construction, to determine the legislature’s intent

in enacting ORS 166.250(1)(b). State v. Gaines, 346 Or 160,

171-72, 206 P3d 1042 (2009); PGE v. Bureau of Labor and

Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).

3

Indeed, even though the trial court did not expressly address defendant’s

argument, the court hypothesized “a scenario where * * * a person is driving the

truck and he stops and pushes the seat forward and gets in the backseat and

does all that and they’re within the vehicle.” (Emphasis added.) Thus, the court at

least arguably considered, and rejected, defendant’s argument that his conduct

in reaching under the back seat to retrieve the handgun did not constitute being

“within” the truck.

754 State v. Clemente-Perez

We begin with the text of ORS 166.250(1)(b), which

provides in part:

“(1)  Except as otherwise provided in this section * * *, a

person commits the crime of unlawful possession of a fire-

arm if the person knowingly:

“* * * * *

“(b)  Possesses a handgun that is concealed and read-

ily accessible to the person within any vehicle[.]”

Initially, the parties dispute whether the phrase

“within any vehicle” refers to the “handgun” or to the “per-

son.” Defendant argues that “within any vehicle” refers to

the “person.” In his view, a person does not violate the stat-

ute unless he or she is within a vehicle at the time that he or

she possesses a concealed and readily accessible handgun.

The state, by contrast, contends that “within any vehicle”

modifies the term “handgun,” and that a person need not be

within a vehicle to violate the statute. In deciding between

those competing grammatical interpretations, we seek guid-

ance from applicable canons of statutory construction. See

PGE, 317 Or at 611 (“In trying to ascertain the meaning

of a statutory provision, and thereby to inform the court’s

inquiry into legislative intent, the court considers rules of

construction of the statutory text that bear directly on how

to read the text.”). In particular, two rules of construction

guide our analysis here: the doctrine of the last antecedent

and the rule against surplusage.

The doctrine of the last antecedent provides that

“ ‘[r]eferential and qualifying words and phrases, where no

contrary intention appears, refer solely to the last anteced-

ent. The last antecedent is the last word, phrase, or clause

that can be made an antecedent without impairing the

meaning of the sentence.’ ” State v. Webb, 324 Or 380, 386,

927 P2d 79 (1996) (internal quotation marks omitted) (quot-

ing Norman J. Singer, 2A Sutherland Statutory Construction

§ 47.33, 270 (5th ed 1992)). In ORS 166.250(1)(b), the word

“person” immediately precedes—and is therefore the last

antecedent of—the phrase “within any vehicle.” Thus, accord-

ing to the doctrine of the last antecedent, the phrase “within

any vehicle” refers to “person,” unless such a construction

would impair the meaning of the sentence. The state has not

Cite as 357 Or 745 (2015) 755

argued that construing “within any vehicle” to modify “per-

son” would impair the meaning of the sentence, and we do

not perceive any such impairment.

As a general rule, we also assume that the legis-

lature did not intend any portion of its enactments to be

meaningless surplusage. See ORS 174.010 (instructing

courts to construe statutes so as to “give effect to all” provi-

sions); Arken v. City of Portland, 351 Or 113, 156, 263 P3d

975 (2011) (noting “cardinal rule of statutory construction

to give significance and effect to every part of a statute”

and “well-established principle to avoid interpretations of

statutes that render portions of them redundant”); Dept. of

Transportation v. Stallcup, 341 Or 93, 101, 138 P3d 9 (2006)

(rejecting construction that would relegate portion of statute

to surplusage, “in contravention of this court’s stated goal of

giving effect to every provision of a statute”) (internal quota-

tion marks omitted). We note that the state’s interpretation of

ORS 166.250(1)(b) would render the phrase “within any vehi-

cle” redundant. As the state points out, ORS 166.250(4)(a)

provides that a handgun is “readily accessible” within the

meaning of the unlawful possession statute if the hand-

gun is “within the passenger compartment of the vehicle.”

ORS 166.250(4)(a). The state argues that subsection (4)(a)

indicates that the legislature, in prescribing the crime

of unlawful possession of a firearm, was concerned with

specifying the location of the handgun, not the defendant.

In our view, however, subsection (4)(a) cuts the other way.

Subsection (4)(a) defines “readily accessible” to mean that,

apart from certain enumerated exceptions, the handgun is

“within the passenger compartment of the vehicle.” Thus,

the phrase “readily accessible” as used in ORS 166.250(1)(b)

already indicates that the handgun is within the vehicle—

specifically, within the passenger compartment of the vehi-

cle. To interpret the phrase “within any vehicle” to once

again specify that the handgun is within the vehicle, as

the state suggests, would render that phrase redundant.

We decline to adopt such an interpretation. Rather, we con-

clude that the phrase “within any vehicle” modifies the term

“person.” Accordingly, to violate ORS 166.250(1)(b), a person

must be within a vehicle at the time that the person know-

ingly possesses a concealed and readily accessible handgun.

756 State v. Clemente-Perez

The question before us, then, is whether a rational

factfinder could have found, beyond a reasonable doubt, that

defendant was “within any vehicle,” as that phrase is used

in ORS 166.250(1)(b). See State v. King, 307 Or 332, 339, 768

P2d 391 (1989) (“In ruling on the sufficiency of the evidence

in a criminal case, the relevant question is whether, after

viewing the evidence in the light most favorable to the state,

any rational trier of fact could have found the essential ele-

ments of the crime beyond a reasonable doubt.”). Defendant

and the dissent contend that a person is not “within any

vehicle” unless he or she occupies the vehicle as a driver or

passenger.4 From their perspective, a person is not within a

vehicle unless the person is sitting in or otherwise has his

or her entire body inside the passenger compartment of the

vehicle. The state contends that extending even a portion of

one’s body inside a vehicle may suffice.

Where, as here, the legislature has not defined a

particular term, we assume that the legislature intended

to give words of common usage their “plain, natural, and

ordinary meaning.” PGE, 317 Or at 611. Webster’s Third New

International Dictionary defines “within” as

“(1): in the inner or interior part of : INSIDE OF * * *

(2): in the limits or compass of : not beyond * * * : enclosed

or confined by[.]”

Id. at 2627 (unabridged ed 2002). Some of those definitions

appear to support the state’s position, while others appear to

support that of defendant and the dissent. For example, the

definition “in the inner or interior part of” is consistent with

the state’s contention that, once a person reaches beyond

the exterior and into the interior of a vehicle, that person is

“within”—i.e., in the inner part of—the vehicle. On the other

hand, the definition “enclosed or confined by” would seem to

suggest full enclosure of a person’s body within a vehicle, as

defendant and the dissent assert. Because ORS 166.250(1)(b)

4

Webster’s Third New International Dictionary 1561 (unabridged ed 2002)

defines “occupy” in this context as “to fill up (a place or extent).” Although defen-

dant does not provide a definition for the word “occupy,” he appears to use the

term to mean to sit in, or otherwise be fully inside, a vehicle. Specifically, he

argues that “the legislature was concerned with occupants of cars, drivers and

passengers, having ready access to concealed weapons in public, not storing

weapons in parked cars.”

Cite as 357 Or 745 (2015) 757

could plausibly support either definition, the statute is at

least ambiguous. We therefore look to the statute’s context

to determine which of those plausible interpretations was

the one that the legislature most likely intended. See State v.

Cloutier, 351 Or 68, 96, 261 P3d 1234 (2011) (“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.”).

Context includes, among other things, other provi-

sions of the statute at issue. Force v. Dept. of Rev., 350 Or

179, 188, 252 P3d 306 (2011). In particular, defendant raises

two contextual arguments regarding ORS 166.250(4), which

provides, in part:

“(a)  Except as provided in paragraph[ ] (b) * * * of this

subsection, a handgun is readily accessible within the

meaning of this section if the handgun is within the pas-

senger compartment of the vehicle.

“(b)  If a vehicle * * * has no storage location that is out-

side the passenger compartment of the vehicle, a handgun is

not readily accessible within the meaning of this section if:

“(A)  The handgun is stored in a closed and locked

glove compartment, center console or other container; and

“(B)  The key is not inserted into the lock, if the glove

compartment, center console or other container unlocks

with a key.”

First, defendant points out that the legislature defined “read-

ily accessible” for purposes of ORS 166.250 to mean that the

handgun is “within the passenger compartment of the vehi-

cle.” He argues that such a definition “makes sense only if

the statute is targeting possession of concealed weapons by

people who are themselves in vehicles.” In other words, for a

handgun to be “readily accessible” to a person “within any

vehicle,” defendant contends that both the handgun and the

person must be within the passenger compartment of the

vehicle. We do not disagree. However, defendant’s argument

does not answer the question we must decide in this case—

whether putting some, but not all, of a person’s body inside

the passenger compartment of a vehicle is sufficient for a

person to be “within” the vehicle.

758 State v. Clemente-Perez

Defendant advances a second argument, with which

the dissent agrees, that interpreting “within” to include a

portion of a person’s body would create an inconsistency with

ORS 166.250(4)(b). 357 Or at 773 (Walters, J., dissenting).

That subsection provides that a handgun that would other-

wise be deemed “readily accessible” will not be so deemed if

the handgun is stored in a closed, locked container and the

key is not inserted into the lock of that container. According

to defendant and the dissent, if merely reaching into a vehi-

cle is sufficient to make that person “within” the vehicle

under ORS 166.250(1)(b), then no person could make use of

the locked container exception in ORS 166.250(4)(b) without

violating ORS 166.250(1)(b). They posit that, at the moment

that a person were to reach into a vehicle and unlock the

compartment, the person would be “within” the vehicle in

violation of ORS 166.250(1)(b).

We note that the dissent’s construction of the stat-

ute would not resolve that potential quandary. Even under

the dissent’s construction, a driver or passenger who was

fully enclosed within a vehicle would run the same risk of

violating the statute at the moment that he or she unlocked

the relevant compartment. In any event, our response to

that theoretical dilemma is that the legislature, in pro-

viding the locked-container exception, has exempted from

prosecution certain conduct that would otherwise be pro-

scribed by ORS 166.250(1)(b). Specifically, if a person locks

a handgun inside a “glove compartment, center console or

other container” within a vehicle, that handgun will not

be considered “readily accessible” for purposes of ORS

166.250(1)(b). Thus, a person would not violate the statute

under those circumstances.5

Finally, we consider the legislative history of ORS

166.250(1)(b) to discern the legislature’s intended meaning

5

The same reasoning applies to the other exceptions that the dissent mentions,

such as the exceptions for going to and from a target range or to and from a hunting

or fishing expedition. 357 Or 773 (Walters, J., dissenting). With respect to those

exceptions as well, the legislature has exempted certain conduct that would other-

wise be criminalized by ORS 166.250. Our interpretation of ORS 166.250(1)(b)

does not affect those exemptions. If a person were to retrieve a firearm from a

vehicle “while going to and from [established target] ranges,” ORS 166.260(3)(a),

or “while going to or returning from a hunting or fishing expedition,” ORS

166.260(3)(b), then ORS 166.250 simply would not apply to that person.

Cite as 357 Or 745 (2015) 759

of the phrase “within any vehicle.” The legislature enacted

the current version of ORS 166.250(1)(b) in 1999. Or Laws

1999, ch 1040, § 1. The legislative history of the 1999 amend-

ments indicates that the legislature amended ORS 166.250

primarily in response to the Court of Appeals decision in

State v. Williams, 161 Or App 111, 984 P2d 312 (1999).

In that case, police officers pulled over a car and found a

handgun underneath the front passenger seat, where the

defendant had been sitting, and arrested the defendant for

unlawful possession of a firearm. Id. at 113. At the time

that Williams was decided, ORS 166.250(1)(b) provided that

a person committed the crime of unlawful possession of a

firearm if the person knowingly “[c]arrie[d] concealed and

readily accessible to the person within any vehicle which is

under the person’s control or direction any handgun, without

having a license to carry such firearm.” ORS 166.250(1)(b)

(1993). The Court of Appeals held that the police lacked

probable cause to arrest the defendant for carrying a con-

cealed weapon within a vehicle, in violation of ORS 166.250,

because there was no evidence that the defendant had “con-

trol or direction” of the vehicle. 161 Or App at 118.

The legislature responded in two ways. First, the

legislature eliminated the requirement that a vehicle be

“under the person’s control or direction,” thereby ensuring

that ORS 166.250 would apply to passengers as well as driv-

ers. See Tape Recording, Senate Committee on Judiciary,

HB 3374, June 30, 1999, Tape 261, Side A (statement of

Assistant Attorney General David Amesbury) (“The problem

in Williams was we had the passenger with the concealed

handgun, but he wasn’t in control of the vehicle, so the stat-

ute didn’t apply to him. So, under the current statute and

State [v.] Williams, the passengers in a drive-by shooting sit-

uation, as long as they’re not caught shooting, if they’re just

carrying the weapons concealed, the statute doesn’t apply to

them[.]”); Tape Recording, Senate Committee on Judiciary,

HB 3374, June 30, 1999, Tape 261, Side A (statement of

Marion County District Attorney Dale Penn) (“[HB 3374] is

designed to deal with the problem of drive-by shootings that

we have in a number of counties[.] * * * [W]e are unable to

prosecute passengers who are possessing the guns and using

the guns unless we catch them in the act of shooting, and so

760 State v. Clemente-Perez

this change in the statute would allow us to prosecute pas-

sengers[.]”). Second, the legislature changed the term “car-

ries” to “possesses” to address the situation in which a hand-

gun is concealed and readily accessible to a person within a

vehicle, despite the fact that the person is not physically car-

rying the handgun. See Tape Recording, Senate Committee

on Judiciary, HB 3374, June 30, 1999, Tape 261, Side A

(statement of Assistant Attorney General David Amesbury)

(noting concern under prior version of statute that, “if some-

body has [a handgun] under the floor mat or is sitting on it

or [has it] shoved under the seat, perhaps he’s not carrying

it, so he still might not be affected by the statute”).

Defendant and the dissent contend that the 1999

amendments to ORS 166.250(1)(b) show that the legis-

lature intended the statute to apply exclusively to vehicle

occupants—i.e., drivers and passengers. However, we do not

view the legislative history so narrowly. That history indi-

cates that the legislature intended to broaden the scope of

ORS 166.250(1)(b) to include persons within vehicles who

do not drive or own the vehicle. Nothing in the legislative

history, however, demonstrates an intent to restrict the

scope of the statute to people who are sitting in or otherwise

completely inside a vehicle. If the legislature had intended

the statute to apply only to persons who “occupy” vehicles, it

could have said so expressly. For example, the Model Penal

Code and a handful of other state statutes pertaining to

firearm regulation use some variation of the word “occupy”

when describing a person’s location with respect to a vehicle.

The Model Penal Code establishes a presumption of criminal

purpose if “a person possesses a firearm or other weapon on

or about his person, in a vehicle occupied by him, or other-

wise readily available for use.” Model Penal Code § 5.06(2)

(emphasis added). Similarly, the California Penal Code pro-

vides that a person is guilty of carrying a concealed fire-

arm if the person “[c]auses to be carried concealed within

any vehicle in which the person is an occupant any pistol,

revolver, or other firearm capable of being concealed upon

the person.” Cal Penal Code § 25400(a)(3) (emphasis added);

see also Conn Gen Stat § 29-38(a) (proscribing a person

from “knowingly ha[ving], in any vehicle owned, operated or

occupied by such person, any weapon, any pistol or revolver

Cite as 357 Or 745 (2015) 761

for which a proper permit has not been issued”) (empha-

sis added); cf. Ohio Rev Code § 2923.16(B) (providing that

“[n]o person shall knowingly transport or have a loaded fire-

arm in a motor vehicle in such a manner that the firearm is

accessible to the operator or any passenger without leaving

the vehicle”) (emphasis added).6

In contrast, when the legislature enacted ORS

166.250(1)(b), it did not specify that a person must actually

“occupy”—i.e., “fill up” the space inside—a vehicle. As we

have noted, the plain and ordinary meaning of “within”—

which includes anything that is “in the inner or interior part

of” something else—is broader than “occupies.” Moreover,

nothing in the text, context, or legislative history of ORS

166.250(1)(b) indicates that the legislature intended to limit

the scope of the term “within” to be synonymous with “occu-

pies.” We will not read such an unwritten limitation into the

statute. See ORS 174.010 (providing that courts shall not

“insert what has been omitted” into a statute). We therefore

conclude that a person violates ORS 166.250(1)(b) if the per-

son, or some portion of the person’s body, is in the interior

part of a vehicle at the time that he or she possesses a con-

cealed, readily accessible handgun.7

6

Those statutes were enacted after the original enactment of ORS 166.250(1)(b)

in 1925, and therefore do not indicate what the Oregon legislature had in mind

at that time. They demonstrate, however, that a clear drafting path existed for

limiting Oregon’s unlawful possession statute to people who “occupy” vehicles,

and the legislature did not take that path—either when the legislature originally

enacted the statute or when it amended the statute in 1999. Cf. State v. Walker,

356 Or 4, 24, 333 P3d 316 (2014) (observing that post-enactment cases from other

jurisdictions “still may be consulted for their persuasive value”); Halperin v. Pitts,

352 Or 482, 490-91, 287 P3d 1069 (2012) (“[T]his court not infrequently refers to

later-enacted statutes for the purpose of demonstrating consistency (or inconsis-

tency) in word usage over time as indirect evidence of what the enacting legisla-

ture most likely intended.”).

7

The dissent would conclude that, when the legislature amended ORS

166.250(1)(b) in 1999, the legislature simply intended to change a statute that

applied to vehicle drivers to render it applicable to vehicle passengers. 357 Or

771 (Walters, J., dissenting). The dissent’s conclusion, however, begs the ques-

tion of when a driver or passenger is sufficiently “within” a vehicle. The dissent

would answer that question by holding that every inch of a person’s body must

be enclosed by a vehicle before the statute will apply. Under the dissent’s con-

struction, a driver or passenger who, for example, rests his or her elbow outside

the window would no longer be enclosed by the vehicle and therefore would not

be “within” the vehicle for purposes of ORS 166.250(1)(b). We find no support in

the statutory text, context, or history for ascribing such a narrow meaning to the

word “within.”

762 State v. Clemente-Perez

We further conclude that the state presented suf-

ficient evidence from which a rational trier of fact, making

reasonable inferences, could find beyond a reasonable doubt

that at least some portion of defendant’s body was in the

interior part of his truck at the time that he possessed a con-

cealed, readily accessible handgun. That evidence included

the testimony of Deputy Brown, the county sheriff who

arrested defendant. Brown testified that it was “kind of a

process” to access the storage compartment underneath the

back seat of defendant’s truck, explaining that one needed

to “[p]ull the whole seat forward towards the front of the

pick-up.” Also, defendant introduced photographs showing

each step of the process of accessing the storage compart-

ment. Those photographs indicate that a person must fold

down the back seat, flip up the entire seat, and then open

the lid of the compartment in the floor of the truck to access

the storage compartment. Based on that evidence, a jury

reasonably could infer that some portion—and indeed, likely

a substantial portion—of defendant’s body had been inside

his truck when he took the handgun out of and later placed

it back into the storage compartment. We therefore conclude

that the trial court did not err in denying defendant’s motion

for judgment of acquittal on the theory that defendant had

not been “within” the truck.

C.  “Place of Residence” Exception

We now turn to defendant’s contention that he

was nevertheless entitled to judgment of acquittal because

he met the “place of residence” exception provided in ORS

166.250(2)(b). That exception provides:

“Any citizen of the United States over the age of 18

years who resides in or is temporarily sojourning within

this state * * * [is not prohibited] from owning, possessing

or keeping within the person’s place of residence or place

of business any handgun, and no permit or license to pur-

chase, own, possess or keep any such firearm at the per-

son’s place of residence or place of business is required of

any such citizen. As used in this subsection, ‘residence’

includes a recreational vessel or recreational vehicle while

used, for whatever period of time, as residential quarters.”

ORS 166.250(2)(b).

Cite as 357 Or 745 (2015) 763

In defendant’s view, the phrase “place of residence”

refers to the entirety of a person’s residential property—

that is, a person may lawfully possess a handgun under

ORS 166.250(2)(b) anywhere inside the property lines of

his or her residential property. Alternatively, defendant

argues that the legislature intended the “place of residence”

exception to extend to all portions of a person’s residen-

tial property that the person would consider to be private.

He contends that the storage location of his handgun—

inside his truck, parked under an awning adjacent to his

driveway—was well within the private portion of his resi-

dential property and that he therefore met the “place of res-

idence” exception.

The state, however, seeks a narrower interpretation.

From the state’s perspective, a person’s “place of residence”

is limited to the bounds of a person’s residential structure.

Accordingly, because defendant did not possess the handgun

within his residential structure, he did not meet the excep-

tion for possessing a handgun within his “place of residence.”

To determine what the legislature likely intended

the phrase “place of residence” to mean, we examine the text,

context, and any relevant legislative history. Gaines, 346 Or

at 171-72. Unfortunately, any legislative history pertaining

to the enactment of ORS 166.250(2)(b) in 1925 was lost in

the 1935 State Capitol Building fire. See State v. Perry, 165

Or App 342, 350, 996 P2d 995 (2000), aff’d, 336 Or 49, 77

P3d 313 (2003). We therefore look to the statutory text and

context, as well as any applicable maxims of statutory con-

struction, to guide our inquiry into the intended meaning of

“place of residence.”

As previously mentioned, where the legislature does

not provide a definition for a statutory term, we assume that

the legislature intended the words in the statute to have

their plain and ordinary meanings. PGE, 317 Or at 611. We

consult dictionaries in use at the time of the legislature’s

enactment as an aid in interpreting the words of the stat-

ute. State v. Perry, 336 Or 49, 53, 77 P3d 313 (2003). In this

case, we seek guidance from dictionaries in use around the

time of the 1925 legislature’s enactment of the “place of res-

idence” exception.

764 State v. Clemente-Perez

The 1910 version of Webster’s New International

Dictionary defined “residence” as “[t]he place where one

actually lives or has his home; a person’s dwelling place or

place of habitation; an abode. * * * The house where one’s

home is; a dwelling house.” Id. at 1814. Legal dictionaries in

use at the time provided similar definitions. See, e.g., Black’s

Law Dictionary 1032 (1891) (defining “residence” as “[t]he

place where a man makes his home, or where he dwells per-

manently or for an extended period of time”); John Bouvier

& Francis Rawle, 3 Bouvier’s Law Dictionary and Concise

Encyclopedia 2920 (1914) (“residence” means “[p]ersonal

presence in a fixed and permanent abode”).

Because those sources defined “residence” as being

synonymous with “abode,” “dwelling,” and “habitation,” we

consider the definitions of those words as well. A “place of

abode” meant “[a] man’s residence, where he lives with his

family and sleeps at night.” John Bouvier & William Edward

Baldwin, Baldwin’s Century Edition of Bouvier’s Law

Dictionary 27 (1926). Similarly, a “dwelling” was defined as

the “place or house in which a person lives.” Webster’s (1910)

at 687. And a “habitation” was defined as a “[p]lace of abode;

settled dwelling; residence; house.” Id. at 967. Although

those definitions are somewhat circular, they generally refer

to some type of residential structure—i.e., a house, dwelling,

or other habitation. Accordingly, a “residence,” in the plain

and ordinary sense of that word, refers to a structure in

which a person lives.

We note, however, that the legislature not only used

the term “residence,” but rather the phrase “place of resi-

dence,” in providing an exception to the general prohibition

against carrying a concealed weapon. It is unclear whether

the phrase “place of” broadens or narrows the limits of the

term “residence.” Indeed, Black’s noted that the word “place

* * * is an indefinite term. It is applied to any locality, limited

by boundaries, however large or small. * * * The extent of the

locality designated by it must generally be determined by

the connection in which it is used.” Black’s at 899. Webster’s,

in contrast, defined a “place” with more particularity, viz.,

“[a] building, part of a building, or other spot, set apart for

a special purpose.” Webster’s (1910) at 1646. Reading the

phrase “place of residence” as a whole, the term “place”

Cite as 357 Or 745 (2015) 765

can be viewed as further describing (and limiting) the area

excepted from the general provisions of ORS 166.250—that

is, that one’s “place of residence” is the particular structure

set apart for residential purposes.

Of course, dictionaries are only the starting point

for our textual analysis. We must consider the statutory

words in context to determine which of multiple definitions

is the one that the legislature intended. See State v. Ziska/

Garza, 355 Or 799, 805, 334 P3d 964 (2014) (noting that

“resort to dictionaries does not reveal which sense the leg-

islature had in mind” and that “we look to the terms of the

statute and how the words in dispute are used in context”).

The phrase “place of residence” appears twice in

ORS 166.250(2)(b), preceded by two different prepositions.

The legislature provided that a person is not prohibited

from possessing a handgun “within the person’s place of res-

idence” and that a person need not have a permit or license

to possess a handgun “at the person’s place of residence.”

(Emphases added.) Unfortunately, “at” does little to eluci-

date the bounds of the phrase “place of residence.” Indeed,

Webster’s noted that “at” is a less definite term than “in”: “At

emphasizes mere locality; in refers more to the interior of

something or to the idea of inclusiveness.” Webster’s (1910) at

144 (emphasis in original). The term “within,” on the other

hand, helps to narrow the limits of the phrase “place of resi-

dence.” Webster’s defined “within” to mean “[i]n the inner or

interior part of; inside of.” Id. at 2344. Thus, the legislature’s

use of the term “within” in the phrase “within a person’s

place of residence” implies that a person’s place of residence

is some type of structure with a discrete interior.

Defendant contends, however, that the legislature’s

choice of the term “residence”—as opposed to terms such

as “dwelling,” “building,” or “house”—indicates a legislative

intent for the exception to apply more broadly than to a res-

idential structure only. He argues that, had the legislature

intended to circumscribe the exception to the bounds of a

person’s residential structure, the legislature could have

used words that would clearly express such a limitation. For

example, the legislature elsewhere specified that second-

degree burglary must occur in a “building,” ORS 164.215,

766 State v. Clemente-Perez

and that first-degree burglary may occur only in a “dwell-

ing,” ORS 164.225. See, e.g., Ogle v. Nooth, 355 Or 570, 584,

330 P3d 572 (2014) (considering “related statutes” as part of

a statute’s context). Defendant argues that the legislature

knew how to refer to physical structures but did not do so,

and therefore did not intend to do so, in ORS 166.250(2)(b).

The problem with that argument, however, is that the plain

meaning of a “residence” is a person’s house, dwelling, or

abode—all of which are residential structures. In other

words, the synonyms commonly used to define “residence”

at or near the time of enactment have the same meaning

that defendant asserts that the legislature did not intend.

Further, the historical context of ORS 166.250 sup-

ports an interpretation of the “place of residence” exception

that is limited to residential structures. See State v. Pipkin,

354 Or 513, 526, 316 P3d 255 (2013) (“[W]e do not inter-

pret text in isolation; we also consider the historical context

against which that text was enacted.”). This court, in Perry,

described the historical background of ORS 166.250 and

related statutes regulating the carrying of concealed weap-

ons. 336 Or at 54-56. The interpretive question presented

in that case was the scope of the other exception provided

in ORS 166.250(2)(b)—the “place of business” exception.

The court described the development of Oregon’s concealed

weapons statutes as follows:

“First, in 1885, the legislature imposed an outright ban

on the carrying of concealed weapons by persons other

than law enforcement officers. By later enactment, the

legislature allowed for the carrying of concealed weapons

on receiving a license. The 1925 statute created an excep-

tion to the general license requirement for persons in their

place of residence or place of business. Those statutes, read

together, reveal the intent of the legislature to carve out a

limited and specific exception to the requirement of obtain-

ing a license to carry a concealed weapon.”

Perry, 336 Or at 56 (emphasis added). Given the limited

nature of the “place of business” exception, the court rejected

the defendant’s argument that the exception should apply to

non-owner employees, reasoning that “it is not likely that

the legislature first would have banned nearly all unlicensed

carrying of concealed weapons and then, only eight years

Cite as 357 Or 745 (2015) 767

later, would create an exception for every person who had

some kind of job—an exception so broad that it would swal-

low the general prohibition.” Id. (internal quotation marks

omitted). That same historical context informs our interpre-

tation of the “place of residence” exception. For the reasons

that this court articulated in Perry, we conclude that the

legislature intended the “place of residence” exception to be

a similarly “limited and specific exception.”

Defendant nevertheless contends that the “place

of residence” exception was intended merely to distinguish

public from private property. If the legislature had wanted

merely to prohibit carrying concealed weapons in public,

however, it could have explicitly said so. Instead, the legis-

lature created a blanket prohibition against carrying a con-

cealed handgun without a license and carved out limited,

specific exceptions for a person’s residence and a person’s

place of business. Just as this court concluded in Perry that

the defendant’s proposed interpretation of “place of busi-

ness” was too broad, we likewise conclude that defendant’s

proposed interpretation would impermissibly broaden the

scope of the “place of residence” exception to include all of a

person’s private residential property.

Finally, we consider defendant’s argument that the

scope of the “place of residence” exception should be inter-

preted coextensively with preexisting Oregon common law

regarding a person’s right to use force to defend his or her

home. See State v. Ofodrinwa, 353 Or 507, 512, 300 P3d 154

(2013) (context for interpreting statutory text includes pre-

existing common law). This court has described that common-

law right, also known as the “castle doctrine,” as follows:

“A man’s house is regarded as his castle, to which he may

flee for safety and protection, and which affords him and his

family a ‘city of refuge’; and, if a person unlawfully intrude,

the householder, after having warned him to depart, if he

do not obey within a reasonable time, may employ suffi-

cient force to expel him; but the immunity pertaining to the

defense of a habitation does not extend beyond the limits of

the dwelling and the customary outbuildings.”

State v. Bartmess, 33 Or 110, 129-30, 54 P 167 (1898) (empha-

sis added); see State v. Brooks, 79 SC 144, 60 SE 518, 520

768 State v. Clemente-Perez

(1908) (citing Bartmess, among other cases, for proposition

that “[t]here is much reason and authority for holding that

one within the curtilage of his dwelling is in fact and law

within his dwelling”).

As defendant points out, the common-law right to

defend one’s home extended to the “customary outbuildings” of

a person’s dwelling. In defendant’s view, “[i]t would be incon-

gruous if the legislature, without expressly saying so, intended

to limit the location at which a person may carry or store a con-

cealed weapon more strictly than where he or she may lawfully

employ them in self-defense against another person.”

We need not decide today, however, whether a cus-

tomary outbuilding of a person’s home might, under appro-

priate circumstances, be used for such domestic purposes

and in such connection with the main residential structure

as to be considered part of a person’s “place of residence.”

See State v. Lee, 120 Or 643, 649, 253 P 533 (1927) (defining

“curtilage” as “the space of ground adjoining the dwelling-

house, used in connection therewith in the conduct of fam-

ily affairs and for carrying on domestic purposes usually

including the buildings occupied in connection with the

dwelling-house”); cf. State v. Dixson/Digby, 307 Or 195, 210,

766 P2d 1015 (1988) (noting that, “although the common

law unquestionably recognized the concept of ‘curtilage,’ it

did so to enlarge the definition of a dwelling to encompass

nearby structures used in conjunction with the dwelling, so

that the invasion of any of them could constitute burglary”).

In this case, the evidence was that defendant possessed a

concealed and readily accessible handgun inside his pickup

truck, which was parked under a stand-alone awning next

to his driveway. There was no evidence that defendant’s

pickup truck, or the awning beneath which it was parked,

could be considered a customary outbuilding of his house.

Nor was there any evidence that defendant used the truck

or the stand-alone awning for domestic purposes to such an

extent that either should be considered part of the house.

III. CONCLUSION

In summary, we conclude that a person’s “place of

residence” for purposes of ORS 166.250(2)(b) is the house or

Cite as 357 Or 745 (2015) 769

other structure in which a person lives—that is, a person’s

residential structure.8 In this case, there was no evidence

that defendant lived in his pickup truck or the area where

the truck was parked. Accordingly, defendant did not meet

the “place of residence” exception under ORS 166.250(2)(b).

Because we conclude that the state presented suffi-

cient evidence from which a rational trier of fact could find

that defendant was “within” his truck at the time that he

possessed a concealed, readily accessible handgun, and that

defendant did not meet the “place of residence” exception,

the trial court did not err in denying defendant’s motion for

judgment of acquittal.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

WALTERS, J., dissenting.

I respectfully dissent. In my view, ORS 166.250(1)(b)

applies to drivers and passengers who are located entirely

inside a vehicle and not to those persons, like defendant,

who reach into a vehicle to place a handgun in or remove a

handgun from a concealed location.

Under ORS 166.250(1)(b), a person commits the

crime of unlawful possession of a handgun if the person

knowingly “[p]ossesses a handgun that is concealed and

readily accessible to the person within any vehicle.” Relying

on the rule of the last antecedent, the majority concludes

that the adjectival phrase “within any vehicle” modifies the

immediately preceding noun—person—and acknowledges

that that phrase also may modify another preceding noun—

handgun. 357 Or at 755. The majority is correct in both

respects. “[W]here the sense of the entire act requires that

the qualifying words apply to several preceding or even suc-

ceeding sections, the word or phrase will not be restricted

to its immediate antecedent.” Johnson v. Craddock, 228 Or

308, 317, 365 P2d 89 (1961) (citing 2 Sutherland, Statutory

Construction 448-49 (3d ed 1943); see also Norman J. Singer,

2A Sutherland Statutory Construction § 47:33 (7th ed 2008)

8

As noted, we leave open the question whether, under other circumstances

not present in this case, a person’s use of an outbuilding might be so connected

with the person’s main residential structure as to be considered a part of it.

770 State v. Clemente-Perez

(stating the same principle as the 1943 edition). That is the

circumstance here. Given that that statute’s applicability

depends on a handgun being “readily accessible,” and that a

handgun is “readily accessible” when it is within the passen-

ger compartment of a vehicle, ORS 166.250(4)(a), the phrase

“within a vehicle” should be understood to modify “hand-

gun” as well as “person.”

That understanding is of assistance in resolving the

questions that the majority poses: What is the meaning of

the word “within”? Does the statute apply only when a per-

son is located entirely inside a vehicle, or does it also apply

when a “substantial portion” of a person’s body is so located?

When modifying “handgun,” the word “within” must mean

entirely inside the passenger compartment of the vehicle.

The reason is that, for the statute to apply, the handgun

must be not only “readily accessible,” but also “concealed.”

If the word “within” were to mean only partially inside the

passenger compartment of a vehicle, it would describe a

handgun that could be partially outside of the vehicle, and

therefore exposed and not concealed. It seems more likely

that, when referring to the handgun, the legislature used

“within” to be consistent with the term “concealed” and in

accordance with one of its dictionary definitions—“in limits

or compass of” and “not beyond”; “enclosed.” See 357 Or at

756 (reciting dictionary definitions).

It follows that “within” also means entirely inside

when modifying “person.” There is no reason to think that

the legislature intended “within” to have different meanings

when modifying different nouns.

Further examination of the statute’s text, con-

text, and legislative history confirms that understanding.

The statute that became ORS 166.250(1)(b) was originally

enacted in 1925. Or Laws 1925, ch 260, § 5. That stat-

ute made it “unlawful for any person within this state to

carry concealed upon his person or within any vehicle

which is under his control or direction any pistol, revolver

or other firearm capable of being concealed upon the per-

son * * *.” Id. In 1999, when the Court of Appeals decided

State v. Williams, 161 Or App 111, 984 P2d 312 (1999), ORS

166.250(1)(b) provided that “a person commits the crime of

Cite as 357 Or 745 (2015) 771

unlawful possession of a firearm if the person * * * [c]arries

concealed and readily accessible to the person within any

vehicle which is under the person’s control or direction any

handgun * * *[.]” The defendant in Williams was a passenger

in a vehicle in which a handgun was concealed. The court

held that ORS 166.250(1)(b) did not apply to him, because

he was not a driver or a person who otherwise had control

over the vehicle. 161 Or App at 118. The court explained

that ORS 166.250(1)(b) required three things: “that the

handgun is ‘concealed and readily accessible to the person,’

that the person does not have a license to carry it, and that

the handgun is concealed ‘within any vehicle which is under

the person’s control or direction.’ ” Id. (Emphasis in original.)

Thus, from 1925 to 1999, ORS 166.250(1)(b) applied only to

persons who carried concealed, readily accessible handguns

within vehicles that they were operating. Those drivers

would have been located entirely inside their vehicles.

In 1999, the legislature amended ORS 166.250 in

direct response to Williams to make it applicable to vehicle

passengers with ready access to handguns that they could

use in drive-by shootings. 357 Or at 759-60. To achieve that

end, the legislature made two changes to the wording of the

statute. First, it eliminated the requirement that the vehi-

cle be “under the person’s control or direction.” Id. at 759.

Second, it changed the word “carry” to the word “possess” to

“address the situation in which a handgun is concealed and

readily accessible to a person within a vehicle, despite the

fact that the person is not physically carrying the handgun.”

Id. at 760. Thus, the legislature made the prohibition that

had been applicable to a person who “[c]arries concealed and

readily accessible to the person within any vehicle which is

under the person’s control or direction any handgun,” ORS

166.250(1)(b) (1999), applicable to a person who “possesses

a handgun that is concealed and readily accessible to the

person within any vehicle.” ORS 166.250(1)(b).

When the legislature made those two changes, it

eliminated the requirement that the person “within” the

vehicle be a driver, but maintained the requirement that a

person subject to the statute be “within” the vehicle. There is

no reason to think that, in doing so, the legislature intended

772 State v. Clemente-Perez

to change the meaning of the word “within.” The legislature

did not, for instance, add a noun, such as “owner,” that would

indicate an intent to govern persons other than those who,

like drivers and passengers, sit entirely within vehicles; a

verb, such as “place” or “retrieve,” that would indicate an

intent to govern such actions; or an adjective, such as “par-

tially,” to indicate an intent to limit the meaning of the word

“within.” The legislature could have done so; in Connecticut,

for example, the legislature chose to prohibit the owner of a

vehicle from having a firearm in a vehicle. Conn Gen Stat

§ 29-38(a).

Certainly, as the majority argues, the legislature

could have changed the word “within” to “occupy,” but why

should it have done so? The phrase “within any vehicle” had

been easily understood. It referred to the location of persons

who have vehicles under their control or direction—drivers

who sit entirely inside their vehicles. Who would think that

broadening the statute to make it applicable to passengers,

who also sit entirely inside vehicles, would require the use

of a new word or phrase? Like legislatures in other states,

the Oregon Legislative Assembly wanted to capture vehicle

occupants as well as operators within the statute’s ambit,

but a description of those persons as persons “within” the

vehicle was sufficient to the task. Unlike the Connecticut

legislature, the Oregon Legislative Assembly did not express

an intent to expand the reach of ORS 166.250(1)(b) to make

it applicable to vehicle owners more broadly or to those who

reach into their vehicles to place handguns in, or retrieve

them from, a concealed location.

In fact, the statute’s context indicates a contrary

intent. As noted, ORS 166.250(1)(b) is applicable when a

person possesses a “concealed” handgun that is “readily

accessible.” When a person reaches into a vehicle to place

a handgun in a concealed location, the person is in the pro-

cess of concealing the handgun, but the handgun is not yet

“concealed.” And a handgun is not “readily accessible” if it

is stored in a locked container, provided that the key is not

inserted in the lock. ORS 166.250(4)(b). If the statute were

interpreted to apply to the act of reaching in to conceal a

handgun or to lock such a container, then the person who

reached in or turned the lock would violate the statute, but

Cite as 357 Or 745 (2015) 773

the person who later drove the car would not. Similarly,

ORS 166.260(3) provides that ORS 166.250 does not apply

to those who shoot at target ranges “or while going to and

from those ranges,” or to licensed hunters or fishermen while

engaged in hunting or fishing, “or while going to or return-

ing from a hunting or fishing expedition.” If ORS 166.250

were interpreted to apply to the act of placing a gun in a

vehicle before setting out on such a trip, then the person who

prepared the vehicle for the trip would violate the statute,

but the driver would not. It seems unlikely that the legis-

lature intended to punish a person for placing a handgun

in a location that a driver is permitted to maintain it. It is

the requirement that both the person and the handgun be

entirely “within” the vehicle that precludes that result. The

person who only reaches into the vehicle does not violate the

statute and neither does the driver.

The majority does not disagree that the legislature

intended to exempt from prosecution persons who reach into

vehicles to place handguns in locked compartments or to con-

ceal them for permitted trips. However, the majority appar-

ently finds, without identifying, some other source for that

exemption. ORS 166.250(4)(a) provides that a handgun is

not “readily accessible” once it is stored in a locked container

and the key is removed from the lock. ORS 166.260 provides

that a person does not violate ORS 166.250 “while” going

to or returning from a permitted trip. Those provisions do

not, by their terms, exempt persons who reach into vehicles

to place handguns in permitted compartments or in con-

cealed locations before beginning permitted trips. Perhaps

the majority reasons that because the legislature permits a

person to drive a vehicle under those circumstances, it also

permits preparation to drive under those circumstances,

including placing a handgun in a permitted place or for a

permitted purpose.

That reasoning may be logical, but it also would

permit the acts in which defendant in this case engaged.

ORS 166.250(1)(b) does not prohibit a person from storing a

handgun in a concealed location in a vehicle; it applies only

when both the person and the gun are within the vehicle at

the same time. Preparation to store a handgun in a vehicle

includes placing the handgun into the vehicle. Furthermore,

774 State v. Clemente-Perez

even under the majority’s interpretation of the statute, a

person does not violate the statute when he or she places

a handgun in a concealed place without inserting any or

“some portion” of his or her body in the vehicle when doing

so. 357 Or at 761. There is no common sense reason that

the legislature would criminalize reaching in with a torso,

but not placing in with a hand. Common sense tells us that

the legislature did not intend to criminalize reaching into

a vehicle to store a handgun or retrieve it from storage; it

intended to prohibit drivers and passengers from possessing

concealed, readily accessible handguns that they could use

to harm members of the public with whom they come into

contact.

I understand full well that the words that the leg-

islature uses are the best expression of its intent and that,

when chosen words compel a result, the chosen words must

be given effect. I know that that is so even when the result

seems at odds with the legislature’s objective or defies com-

mon sense. But here, the word “within” does not compel the

result that the majority reaches. The word “within” means

“in the limits or compass of” and “not beyond”; “enclosed.”

If we give the word “within” that dictionary meaning, ORS

166.250(1)(b) correctly applies, as it always has, only to

those persons who, like their handguns, are located entirely

inside a vehicle. I respectfully dissent.

Brewer, J., joins this opinion.