Summary
In Hanlon v. OSP, 24 Or. App. 859, 547 P.2d 642, Sup Ct review denied (1976), we held in effect that when a record is completely barren of evidence showing where within a two-men cell contraband is found, the person being charged with possession denies any knowledge of the presence of the contraband and there was no other evidence from which knowledge can be imputed to him, such a record is insufficient to support a charge of possession.
Summary of this case from Boyd v. Oregon State PenitentiaryOpinion
No. 09-75-301, CA 5326
Argued February 24, 1976.
Affirmed March 22, reconsideration denied April 28, 1976. Petition for review denied June 15, 1976.
Judicial Review from Corrections Division.
John K. Hoover, Deputy Public Defender, Salem, argued the cause for petitioner. On the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and W. Michael Gillette, Solicitor General, Salem.
Before Schwab, Chief Judge, and Foley and Fort, Judges.
Affirmed.
FORT, J.
This case is a companion case to Martin v. OSP, 24 Or. App. 855, 547 P.2d 641, decided today. Both were heard and decided the same day before the same Disciplinary Committee members. Petitioner here was the other occupant of Segregation and Isolation Cell 217 at the time a plastic mirror and a steel spoon were allegedly found in the cell.
Unlike Martin, here petitioner flatly denied any knowledge of the presence of the spoon or the mirror in the cell. The sparse record of each hearing is completely barren of evidence showing where within the two-man cell the spoon was found. It may have been in a pocket of Martin's uniform, in his mattress, or, for all the record shows, in Hanlon's uniform pocket, in plain view on a shelf, or secreted in a basin, toilet or light fixture.
So far as the broken piece of plastic mirror is concerned, however, there was direct evidence from Martin that it was in plain view on the shelf in the small cell. The credibility of petitioner was for the Disciplinary Committee, which could reasonably infer, despite his denial, that he was in fact aware of the presence in the cell of the plastic mirror. Petitioner acknowledged he knew that under prison rules he might be held equally responsible with a cell mate for contraband found in their cell.
We conclude that there was evidence to support the finding of guilt of possession of dangerous contraband — the piece of plastic mirror.
Affirmed.