The Oregon Court of Appeals has held that a prisoner was entitled to dismissal of a dangerous weapon charge because a plastic spoon with a slightly sharpened handle was not a dangerous weapon. The Court also held an “attempt” jury instruction should have been given.
Oregon state prisoner Sean Coby Hoard plugged his ears with toilet paper so well that he could not remove it; he sought medical attention but was told he could not be seen until the next day. Meanwhile, guards searched Hoard’s cell and found a white plastic spoon with a sharpened handle. Hoard claimed he had only used the spoon in a failed attempt to dig the paper out of his ears; a subsequent investigation did not reveal that he had threatened to use, intended to use or actually used the spoon as a weapon.
A guard described the spoon as a “shank” but later admitted it was only “a work in progress” which needed further sharpening before it could be considered a shank. Although stating the spoon was flexible, the guard claimed “it does bend, but struck with enough force, I think it would penetrate if it was sharpened.”
Hoard was charged with possession of a weapon and supplying contraband. The parties agreed to apply the statutory definition of “dangerous weapon” found in ORS 161.015(1), which provides, “under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury.”
After the state presented its evidence at trial, Hoard moved for judgment of acquittal as to the dangerous weapon charge. The state conceded that the evidence did not establish any of the three statutory alternatives that define the use of a “dangerous weapon.” It argued, however, that the motion should be denied because the spoon was capable of causing injury. The trial court denied Hoard’s motion.
The Court of Appeals reversed. “Because the state presented no evidence that defendant used, attempted to use, or threatened to use the altered spoon in a way that was readily capable of causing death or serious physical injury, there was no evidence from which the jury could have found the defendant made or supplied contraband that was a ‘dangerous weapon’ within the meaning of ORS 161.015(1).” Accordingly, the trial court had improperly denied Hoard’s motion for judgment of acquittal.
The appellate court also found that Hoard was entitled to an “attempt” jury instruction on both charges, as lesser-included offenses. “Because there was evidence to support defendant’s jury instruction on attempt ... the trial court erred in failing to give those jury instructions. Defendant was entitled to have had the jury consider an attempt version of each charge.” See: State v. Hoard, 280 Ore. App. 721, 386 P.3d 672 (Or. Ct. App. 2016).
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Related legal case
State v. Hoard
|Cite||280 Ore. App. 721, 386 P.3d 672 (Or. Ct. App. 2016)|
|Level||State Court of Appeals|