State v. Hancock , 60 Or. App. 425 ( 1982 )

RICHARDSON, P. J.

Defendant was convicted of possession of a weapon by a person committed to a penal institution, ORS 166.275, and being an ex-convict in possession of a firearm. ORS 166.270. He appeals his conviction on the first charge. He contends that his motion for judgment of acquittal should have been granted because his conduct is not covered by ORS 166.275:

“Any person committed to any penal institution who, while under the jurisdiction of any penal institution or while being conveyed to or from any penal institution, possesses or carries upon his person, or has under his custody or control any dangerous instrument, or any weapon including but not limited to any blackjack, slingshot, billy, sand club, metal knuckles, explosive substance, dirk, dagger, sharp instrument, pistol, revolver or other firearm without lawful authority, is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the penitentiary for a term not more than 20 years.”

Defendant was an inmate of the Oregon State Penitentiary. Because he was due for parole in the near future, he was granted a temporary leave from the penitentiary to search for a job. During that leave and while living in a private residence, he was found to be in possession of a sawed-off shotgun.

He argues, citing State v. Larsen, 44 Or App 643, 606 P2d 1159, rev den 289 Or 373 (1980), that the statute is designed to protect institutional security and that he was not in the institution at the time he possessed the weapon. Essentially, he contends that the statute prohibits possession of weapons only in the institution or while being transported to or from it.

In Larsen, the defendant, an inmate of the penitentiary, was temporarily assigned to a work release center away from the penitentiary. He left the center without authorization, which was in essence an escape, ORS 162.155, and subsequently acquired a gun. He was convicted for violation of ORS 166.275. In vacating that conviction, we stated:

“* * * It is apparent that the intent of ORS 166.275 is to protect institutional security. The maximum penalty for violation of that statute is 20 years’ imprisonment. Escape in the first degree, however, which may involve the use of a dangerous or deadly weapon to escape from custody or a correctional facility, ORS 162.165(1)(b), carries a maximum penalty of only 10 years’ imprisonment. We decline to ascribe to the legislature the intent to punish a person more severely for the mere possession of any kind of weapon after escape than for the use of a dangerous or deadly weapon during an escape.” 44 Or App at 651.

The principal rationale of the decision in Larsen was that the defendant had effectively, albeit unlawfully, severed his ties with the penal institution and was no longer under direct custody supervision. Consequently there was no threat to institutional security by the defendant’s possession of the weapon. In this case, too, defendant was no longer in the institution or under direct custody supervision. A threat to institutional security by possession of the weapon during his temporary leave simply did not exist.

The state presented evidence from a prison official that defendant was considered an inmate and would be an inmate until released on parole. The state argues that an inmate who is temporarily away from the institution and in possession of a weapon constitutes a threat to institutional security, because his status as an inmate may facilitate his smuggling the weapon into the prison on his return. Our conclusion in Larsen that the statute was designed to protect institutional security did not expand its reach to include all possession of weapons that potentially threaten institutional security. The statute does not penalize all possession of weapons by inmates, but only possession by inmates in a particular setting. That setting is within the institution or under its direct custodial supervision. Defendant’s motion for judgment of acquittal on the charge of possession of a weapon by a person committed to a penal institution should have been allowed.

The court merged the two convictions and imposed sentence only on the charge of possession of a weapon by a person committed to a penal institution. The conviction on that charge is reversed, and the case is remanded for sentencing on the charge of exconvict in possession of a firearm.

Reversed and remanded for resentencing.