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State v. Craigen

Court of Appeals of Oregon

November 6, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
GEORGE WEST CRAIGEN, Defendant-Appellant.

          Submitted February 21, 2018

          Umatilla County Circuit Court CF130538, Russell B. West, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David O. Ferry, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

         Case Summary:

         Defendant, 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 use.

         Affirmed.

         [300 Or.App. 452]POWERS, J.

         In this 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.

         In 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).

         The 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."

         Defendant was charged with supplying contraband in a correctional facility under ORS 162.185(1)(b).[1]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.

         Under 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 ...


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