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State v. Behee

Court of Appeals of Oregon

November 19, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
COLIN G. BEHEE, Defendant-Appellant

Submitted September 30, 2014

Benton County Circuit Court. CM1120648. Janet Schoenhard Holcomb, Judge.

Conviction for felon in possession of a restricted weapon reversed; remanded for resentencing; otherwise affirmed.

Peter Gartlan, Chief Defender, and Susan Fair Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin K. Galli, Senior Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

OPINION

[267 Or.App. 78] GARRETT, J.

Defendant appeals a judgment of conviction for being a felon in possession of a restricted weapon, ORS 166.270(2). The issue on appeal is whether the object that defendant possessed falls within the meaning of " metal knuckles" for purposes of ORS 166.270(2). Defendant moved for a judgment of acquittal on the ground that the object did not constitute " metal knuckles." The trial court denied the motion. We conclude that the trial court erred, and, therefore, we reverse his conviction for violating ORS 166.270(2).

The facts are undisputed. On May 9, 2011, Corvallis Detective Duncan obtained a search warrant for defendant's home related to an

Page 128

investigation of child pornography. During the search, Duncan and other officers found evidence of child pornography on defendant's computer and on a DVD. Police also searched a backpack belonging to defendant and found the object at issue here, which we describe further below.

In addition to the multiple child pornography counts, which are not at issue in this appeal, defendant was charged with one count of violating ORS 166.270(2), which provides:

" Any person who has been convicted of a felony under the law of this state or any other state, * * * who owns or has in the person's possession or under the person's custody or control any instrument or weapon having a blade that projects or swings into position by force of a spring or by centrifugal force or any blackjack, slungshot, sandclub, sandbag, sap glove, metal knuckles or an Electro-Muscular Disruption Technology device as defined in ORS 165.540, or who carries a dirk, dagger or stiletto, commits the crime of felon in possession of a restricted weapon."

(Emphasis added.) The state alleged that the object found in defendant's backpack constituted " metal knuckles" within the meaning of the statute.

At trial, no particular name was given to the object. On appeal, defendant compares the object to " ninja climbing claws," as reflected in an online advertisement, a printed [267 Or.App. 79] copy of which was attached to defendant's brief. The image of the object contained in the record is substantially similar to the object depicted and described in the advertisement. In light of that similarity, and because the state takes no issue with either defendant's description of the object or the online advertisement, we refer to the object as " climbing claws" throughout the remainder of this opinion.

The climbing claws comprise an elongated, oval-shaped metal band with metal spikes, or claws, on one side. The band can slide over the fingers to encircle the outstretched hand, but it does not have separate finger holes. The claws are between one-half inch and one inch in length and are bent. The band connects to a separate wristband by way of a cloth or leather strap. At trial, defendant's wife testified that defendant used the object for climbing trees, although she noted that she had not actually seen defendant climb trees with it.

On direct examination, the state asked Duncan to describe the climbing claws that he discovered in defendant's backpack:

" DUNCAN: They're a type of weapon where you can strap them on your hand. My best description was similar to a brass knuckle, to where when you were to hit somebody ...

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