Submitted February 21, 2018
Umatilla County Circuit Court CF130538, Russell B. West,
G. Lannet, Chief Defender, Criminal Appellate Section, and
David O. Ferry, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Adam Holbrook, Assistant Attorney General, fled
the brief for respondent.
Ortega, Presiding Judge, and Egan, Chief Judge, and Powers,
who was an inmate at the Umatilla County Jail, appeals from a
judgment of conviction for supplying contraband, ORS
162.185(1) (b), assigning error to the trial court's
denial of his motion for a judgment of acquittal. During a
random search of defendant's cell and person, a prison
guard found a piece of metal, resembling a nail. Because the
nail, or shank, was sharpened on one end to a point, the
state charged defendant with possessing a "dangerous
weapon" as contraband, elevating the crime of supplying
contraband from a category four crime, to a category six
crime under OAR 213-018-0070. Defendant argues that the state
failed to prove the sentence enhancement because there was no
evidence that he used or threatened to use the nail as a
weapon. Held: The trial court did not err. The
definition of "dangerous weapon" as used in OAR
213-018-0070 does not require evidence of use or threatened
Or.App. 452]POWERS, J.
criminal case, defendant appeals from a judgment of
conviction for supplying contraband, ORS 162.185 (1)(b),
assigning error to the trial court's denial of his motion
for a judgment of acquittal. The issue in this case is
whether a "dangerous weapon," as used in OAR
213-018-0070 for purposes of a sentencing enhancement,
requires evidence that defendant used or threatened to use
the weapon. The trial court concluded that evidence of use or
threatened use of the weapon was not necessary and denied
defendant's motion. As explained below, we affirm.
reviewing a denial of a motion for a judgment of acquittal,
we must determine whether, after viewing the facts in the
light most favorable to the state, there was sufficient
evidence from which a rational factfinder "could have
found that the state proved all the essential elements of the
offense, including * * * sentencing enhancement factors,
beyond a reasonable doubt." State v.
Villagomez, 281 Or.App. 29, 32, 380 P.3d 1130 (2016),
aff'd, 362 Or. 390, 412 P.3d 183 (2018)
(internal quotation marks omitted).
relevant facts are few and undisputed. Defendant was an
inmate at the Umatilla County Jail. During a search of his
cell and person, Deputy Hamby found a piece of metal that
resembled a nail or shank tucked into the waistband of
defendant's pants. The nail was approximately three and
three-quarter inches long and sharpened on one end to a
point. Hamby explained that the pointed end of the nail had
been "sharpened enough to penetrate human flesh."
was charged with supplying contraband in a correctional
facility under ORS 162.185(1)(b).Specifically, the state
charged defendant with possessing a "dangerous
weapon," which elevated the offense from a [300 Or.App.
453] "Crime Category 4" to a "Crime Category
6" under OAR 213-018-0070.
ORS 162.185(1)(b), "[a] person commits the crime of
supplying contraband if *** [b]eing confined in a
correctional facility *** the person knowingly makes, obtains
or possesses any contraband." ORS 162.135(1)(a)(D), in
turn, defines "contraband," in part, as "[a]ny
article or thing which a person confined in a correctional
facility * * * is prohibited by statute, rule or order from
obtaining or possessing, and ...