Ralston v. Oregon State Correctional Institution

759 P.2d 298, 92 Or. App. 513

• Court: Court of Appeals of Oregon
• Decided: August 17, 1988
• Docket: 5-540F; CA A45702
• Status: Published

Opinions

WARDEN, P. J.

Petitioner, an inmate of the Oregon State Correctional Institution (OSCI), seeks review of an order imposing sanctions in a disciplinary proceeding. ORS 421.195. He was found to have violated OAR 291-105-015, Rule 14, in two respects: attempting to possess unauthorized property (vitamins) in violation of Rule 5 and attempting to possess contraband (marijuana) in violation of Rule 7. We affirm.

Petitioner first contends that there was insufficient evidence to sustain a finding that he attempted to possess marijuana. He recites the standard tljat “[i]n reviewing factual determinations in connections [sic] with judicial review from actions of the Corrections Division, the standard is whether these determinations are supported by reliable, probative and substantial evidence on the whole record,” citing an applicable statute and Palmer v. OSP, 24 Or App 177, 545 P2d 141 (1976). He then argues that “it is clear that the evidence was insufficient to support the finding.” We disagree. The record contains evidence that petitioner repeatedly requested a visitor to bring marijuana to him at OSCI. We hold that that evidence is sufficient to meet the standard of review recited by petitioner.¹

Petitioner also contends that OSCI erred in finding him guilty of an attempt to possess unauthorized vitamins. That contention lacks merit. He admitted that a visitor tried to bring him the vitamins at his request and that the visitor had brought them (and he had possessed them) once in the past. The visitor also had a number of pills with her, which she said were vitamins, when she was detained and questioned.

Affirmed.

1 The dissent argues that petitioner’s assignment of error sufficiently raises the issue of whether his requests to a visitor to bring marijuana into OSCI, without more, “constitutes a substantial step toward” the violation within the meaning of OAR 291-105-015. That, however, is an argument that the conclusions of law do not reasonably follow from the findings of fact, and petitioner does not raise that issue. Nowhere in his brief does he argue that his repeated requests to a visitor that she bring him marijuana are not a “substantial step toward” possession of marijuana and, therefore, are not punishable as an “attempt” under the rule.

The dissent cites cases and provides a rationale to support its position that OAR 291-105-015 does not speficially prohibit “solicitation” of others to violate the rule. That argument was not made by petitioner, and none of the authorities for it cited by the dissent are found in petitioner’s brief.