State v. Gotchall , 180 Or. App. 458 ( 2002 )

43 P.3d 1121 (2002) 180 Or. App. 458

STATE of Oregon, Respondent,
v.
Karin Kay GOTCHALL, Appellant.

99-03-32388; A108861

Court of Appeals of Oregon.

Argued and Submitted December 21, 2001. Decided April 3, 2002.

David E. Groom, Public Defender, and Walter J. Ledesma, Deputy Public Defender, filed the brief for appellant.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Janet A. Metcalf, Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

PER CURIAM.

Defendant appeals from a conviction for possession of a controlled substance and for supplying contraband. In her first assignment of error, defendant argues that the trial court erred in denying her motion to suppress. We affirm the trial court's ruling on the motion. State v. Amaya, 176 Or. App. 35, 29 P.3d 1177 (2001).

In her second assignment of error, defendant argues that the trial court erred by denying her motion for a judgment of acquittal on two counts of supplying contraband. In the first count, defendant was charged with introducing contraband into a correctional facility. See ORS 162.185(1)(a). Following State v. Tippetts, 180 Or.App. 350, 43 P.3d 455 (2002), we reverse her conviction on that count. In the second count, defendant was charged with possessing contraband while being confined to a correctional facility. See ORS 162.185(1)(b). Although subsection (1)(b) prohibits different conduct than subsection (1)(a), the state does not argue that, in this case, that difference demands a different result from the one that we reach under subsection (1)(a). If defendant did not voluntarily introduce contraband into the correctional facility, we do not see how, on these facts, she could voluntarily possess that contraband once she was confined in the facility. Accordingly, we also reverse the second count.

Reversed as to both counts of supplying contraband; otherwise affirmed.