State v. Cortes

No. 48 November 25, 2025 461

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

ANTHONY RICHARD CORTES,

Petitioner on Review.

(CC 22CR10579, CC 22CR27721)

(CA A179865 (Control), A179866) (SC S071161)

En Banc

On review from the Court of Appeals.*

Argued and submitted April 17, 2025.

Francis C. Gieringer, Deputy Public Defender, Oregon

Public Defense Commission, Salem, argued the cause and

filed the briefs for petitioner on review. Also on the briefs

was Ernest G. Lannet, Chief Defender, Criminal Appellate

Section.

Robert A. Koch, Assistant Attorney General, Salem,

argued the cause and filed the briefs for respondent on

review. Also on the brief were Dan Rayfield, Attorney

General, and Benjamin Gutman, Solicitor General.

JAMES, J.

The decision of the Court of Appeals is reversed. The

judgments of the circuit court are reversed, and the case is

remanded to the circuit court for further proceedings.

Bushong, J., dissented and filed an opinion, in which

Garrett, J., joined.

______________

* Appeal from Douglas County Circuit Court, Robert B. Johnson, Judge. 332

Or App 685, 549 P3d 618 (2024).

462 State v. Cortes

Cite as 374 Or 461 (2025) 463

JAMES, J.

In William Shakespeare’s Macbeth, Act 2, Scene

1, the titular character asks, “Is this a dagger which I see

before me, the handle towards my hand?” As this case illus-

trates, the answer to that question is not always obvious.

Defendant, who is houseless, is on probation and

subject to the general conditions of probation provided for

by Oregon law. Those conditions include the requirement

that a probationer shall “[n]ot possess weapons, firearms or

dangerous animals.” ORS 137.540(1)(j). Defendant’s proba-

tion officer issued a probation violation report alleging that

defendant had violated the general weapons condition when

he reported to the probation office with a knife in his back-

pack. At the probation violation hearing, defendant claimed

that, although it was a knife, it was a steak knife, and it was

therefore not a weapon but a tool, an essential eating imple-

ment that defendant carried in his backpack by necessity

because, being houseless, he carried all his worldly posses-

sions upon his person.

The trial court rejected defendant’s argument

that the knife—even if it was a steak knife—was not a

weapon for purposes of the probation statute. The Court of

Appeals affirmed without opinion. State v. Cortes, 332 Or

App 685, 549 P3d 618 (2024). We allowed review to consider

whether defendant violated the weapons condition in ORS

137.540(1)(j). The debate in this case might appear onto-

logical in nature: What makes a weapon a weapon? What

characteristics give an object weaponness? But, we need

not resolve those deeper philosophical questions. Our task

is more grounded; we are only called upon to decide what

the Oregon legislature intended to be considered a weapon

for purposes of ORS 137.540. Here, based on the text, con-

text, and legislative history of ORS 137.540(1)(j), and con-

sidering maxims of constitutional avoidance, we hold that

the legislature intended for the term “weapons,” as used in

that statute, to apply to instruments designed primarily

for offensive or defensive combat or instruments that would

reasonably be recognized as having substantially the same

character, and not to tools or objects designed primarily for

utility, even when those tools can be used as weapons under

464 State v. Cortes

some circumstances. Based on that definition, we conclude

that the trial court erred in concluding that defendant had

violated the weapons condition without first engaging in a

factual inquiry about the knife at issue and making a fac-

tual determination as to whether it was a knife that was

designed primarily for offensive or defensive combat, or one

that would reasonably be recognized as having substan-

tially the same character, as opposed to a knife designed

primarily for utility. Accordingly, we reverse the decision of

the Court of Appeals and the trial court’s judgments. The

case is remanded to the trial court for further consideration

in light of this opinion.

I. BACKGROUND

At the time of the alleged probation violation giving

rise to this case, defendant was serving two separate terms

of probation arising out of two separate criminal cases. In

the first, defendant pleaded no contest to three counts of com-

puter crime, ORS 164.377(2), after he used a school district’s

credit card to make unauthorized purchases. In the second,

defendant pleaded no contest to, among other charges, bur-

glary in the second degree, ORS 164.215, and criminal mis-

chief in the second degree, ORS 164.354, for breaking into

a marijuana dispensary and an adjoining laundromat. As

a result of those pleas, defendant was sentenced to a total

of five years’ probation and was “subject to all general con-

ditions of probation.” One of those conditions provided that

defendant “shall [n]ot possess weapons, firearms or danger-

ous animals.” ORS 137.540(1)(j). Douglas County probation

officer Vidal was assigned to supervise defendant on both of

his probation cases.

During probation intake, defendant was provided

a “weapons notice,” a document apparently created by the

Douglas County probation office, which informed defendant

of what that office considered to be prohibited weapons:

“All persons on supervision for felony or misdemeanor,

general condition [ORS 137.540(1)(j)] states don’t possess

weapons, firearms, or dangerous animals. While on super-

vision you are not allowed to possess or have custody and

control of any weapons capable of causing physical injury.

This includes, but is not limited to, archery equipment,

Cite as 374 Or 461 (2025) 465

crossbow, tear gas, mace, pepper sprays, all knives, and

work tools such as utility knives or any other items your

[probation officer] considers weapons.”1

The wording of that notice does not track ORS 137.540,

which does not specify that “all knives” or “work tools” are

per se “weapons.” Based on that notice, Vidal advised defen-

dant to keep anything that he considered a tool, and not

a weapon, in “a toolbox or * * * somewhere where he keeps

the tools.” At some point during the intake or a supervision

meeting, Vidal became aware that defendant was unhoused.

The events giving rise to the probation violation in

this case occurred during a scheduled meeting between defen-

dant and Vidal. After learning that defendant had arrived at

the probation office, Vidal went to call him from the lobby for

their appointment. As defendant approached, Vidal observed

that defendant was carrying a backpack and “noticed a han-

dle of [a] knife sticking out from [his] backpack.” Defendant

complied with Vidal’s instruction to stop and drop the back-

pack, and Vidal removed the knife from the bag. The knife

was nine inches long, and the blade was four-and-a-half

inches in length and had a rounded tip. Based on defendant’s

possession of that knife, Vidal arrested defendant and filed

a violation report, alleging that he had violated the weapons

condition and seeking the revocation of his probation.

At the probation revocation hearing, Vidal testified

about his supervision of defendant and the events leading

up to defendant’s arrest. After Vidal testified that the knife

found in defendant’s backpack violated the weapons condi-

tion, defense counsel asked Vidal to explain what consti-

tuted a “weapon” under ORS 137.540(1)(j):

“[DEFENSE COUNSEL:] Have you received training

on what a weapon is?

“[VIDAL:] Yes.

“[DEFENSE COUNSEL:] Okay. And what is the defi-

nition of a weapon?

“[VIDAL:] Anything that can cause me harm.

1

Although a copy of the weapons notice was not introduced into evidence,

Vidal testified to its contents during defendant’s probation violation hearing.

466 State v. Cortes

“[DEFENSE COUNSEL:] So what’s the definition,

what’s the difference between a weapon and a tool?

“[VIDAL:] When he did an intake we have a weapons

notice and tell him that any weapon, anything that’s con-

sidered a tool needs to be in a tool, a toolbox or in, in, in

somewhere where he keeps the tools.”

Vidal then described the knife that he had found in

defendant’s backpack, comparing it to a “steak knife.” Vidal

testified that he had not “tr[ied] the blade” and explained

that “the inches of the knife to me is [what constitutes a

weapon, that] which could potentially cause me harm.” Vidal

also explained that the “weapons notice” that defendant

signed provided that “all knives” were considered weapons.

When defense counsel sought further clarification

on Vidal’s understanding of what qualified as a “weapon,”

Vidal testified that the meaning of the term depended, to

some extent, on context:

“[DEFENSE COUNSEL:] Okay. So you said that a

weapon is anything that can cause harm?

“[VIDAL:] To me. Yes.

“[DEFENSE COUNSEL:] Okay. So what’s, so is he not

allowed to have scissors?

“[VIDAL:] He needs to, if he’s putting, sticking out, or

he’s pointing to the sides, pointing to me. Yes. It’s a weapon.

“[DEFENSE COUNSEL:] So he’s not allowed to have a

screwdriver?

“[VIDAL:] If he [has] put it in his hands and points it

towards to me. No.

“[DEFENSE COUNSEL:] Okay. So you said he

wouldn’t be allowed to have scissors if he was pointing

them at you but he didn’t point that knife at you that day,

did he?

“[VIDAL:] No normal person [would] be walking

around with a knife that big in his bag sticking out.”

Despite his earlier testimony that “all knives”

constituted weapons under the weapons provision, Vidal

Cite as 374 Or 461 (2025) 467

testified that there were some scenarios where a probationer

would be permitted to possess a knife:

“[DEFENSE COUNSEL:] So is it your position that if

he’s about to sit down for dinner and he has a steak knife

next to him he needs to call you first and ask whether or

not he can use that to eat his food?

“[VIDAL:] If he’s using it to just eat, yes. No. Sorry.

No. But if he’s walking around with a knife in his backpack

he shouldn’t be.”

After Vidal testified, the state argued that the knife

violated the weapons condition because defendant had been

told that he could not possess any instrument that could

harm his probation officer, and the knife could “clearly cause

harm.”

In response, defendant argued that possessing the

knife did not violate probation because it was not a weapon

under ORS 137.540(1)(j):

“Your Honor, our first argument, that this is not a

weapon that is intended to be used under the probation

violation statute. This knife, while it was a steak knife is

what it was defined as. Something that had a rounded tip.

Something similar to what you would get at [a steakhouse]

to butter your rolls or use it on your steak.

“The notice requirement is just insufficient. All knives

doesn’t mean that you can’t use a tool for eating or you can’t

use a tool to cut. And so at that point it becomes insuffi-

cient and doesn’t provide proper notice on when or when he

cannot use any kind of eating utensil or any kind of tool.

For those reasons we would argue that it’s not a weapon as

that’s mentioned under the conditions of probation statute.”

Following argument, the trial court concluded on the

record that defendant had violated the weapons condition:

“Okay. I do find that he’s in violation of his probation.

This is clearly a knife. And under the, the weapons provi-

sion that the Probation Officer read[,] this clearly consti-

tutes a weapon.”

The court denied the state’s request to revoke probation and

imposed a 30-day jail sentence.

468 State v. Cortes

Defendant appealed, reprising his arguments from

the trial court. In response, the state argued that the legis-

lature intended for the weapons provision to be interpreted

broadly and that the ordinary meaning of the word “weapon”

included not only instruments or objects designed for com-

bat but anything used or usable to injure or fight a person.

The state did not contend that the knife confiscated from

defendant was specifically designed to cause injury. Instead,

the state argued that the trial court could infer from the

way defendant was carrying the knife—with the handle dis-

played outside of his backpack—that “defendant was carry-

ing the knife to protect himself or to fight someone.” In other

words, the state argued that the trial court could appropri-

ately find that “possessing a steak knife in that way made

the knife usable as a weapon, which is prohibited by ORS

137.540(1)(j).” (Emphasis in original.)

The Court of Appeals affirmed without opinion,

State v. Cortes, 332 Or App 685, 549 P3d 618 (2024), and

defendant filed a petition for review, which we allowed.

II. ANALYSIS

ORS 137.540 provides that a trial court “may sen-

tence the defendant to probation subject to [several] general

conditions unless specifically deleted by the court.” At issue

in this case is whether defendant’s knife was a “weapon”

under the general probation condition that prohibits a pro-

bationer from possessing “weapons, firearms or dangerous

animals.” ORS 137.540(1)(j).

According to defendant, he did not violate the weap-

ons condition because a “weapon” is an instrument specifi-

cally designed for combat and the record did not support a

finding that defendant’s knife was a weapon, because his

knife lacked features of other bladed instruments designed

for combat and defendant did not use the knife in combat.

The state, on the other hand, asserts that defendant violated

ORS 137.540(1)(j) because (1) this court has determined, as

a matter of law, that “knives are both a tool and a weapon

designed to cause physical injury” and (2) defendant’s mere

possession of the knife in this case constituted a violation of

the weapons condition.

Cite as 374 Or 461 (2025) 469

As can be seen from the parties’ arguments, the

issue presented in this case contains both factual and legal

dimensions. Because the parties’ factual arguments turn

in large part on their legal arguments about the meaning

of “weapons” in ORS 137.540(1)(j), we begin with the legal

issues. After applying our traditional method of statutory

interpretation to determine the meaning of “weapons,” we

consider whether, when viewed in the light most favorable to

the state, the record supports the trial court’s finding that

defendant’s possession of the knife in this case violated the

weapons condition. See, e.g., State v. Wallace, 373 Or 122,

133, 561 P3d 602 (2024) (setting out analytical structure

for cases where the sufficiency of the evidence depends on a

matter of statutory interpretation).2

A. Meaning of “Weapons” in ORS 137.540(1)(j)

The meaning of the weapons provision in ORS

137.540 presents an issue of statutory interpretation.

Accordingly, we turn to the familiar analytical framework

set out in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009).

Under that framework, we examine the text and context of

ORS 137.540(1)(j), together with the relevant legislative his-

tory, all with the “paramount goal” of determining the legis-

lature’s intent. Gaines, 346 Or at 171-72.

1. Textual analysis

ORS 137.540(1)(j) provides:

“(1) The court may sentence the defendant to proba-

tion subject to the following general conditions unless spe-

cifically deleted by the court. The probationer shall:

“* * * * *

“(j) Not possess weapons, firearms or dangerous

animals.”

The legislature did not provide a definition for

“weapons.” When a statutory term is undefined, this court

“ ‘ordinarily look[s] to the plain meaning of a statute’s text

2

As noted previously, the “weapons notice” provided to defendant defined

“weapons” to include all knives. That definition is not determinative here. The

authority of a probation officer derives from the conditions of probation imposed

by statute, and the court. ORS 137.630. The issue here is what the legislature, not

the probation office, intended “weapons” to encompass.

470 State v. Cortes

as a key first step in determining what particular terms

mean.’ ” State v. Gonzalez-Valenzuela, 358 Or 451, 460, 365

P3d 116 (2015) (quoting Comcast Corp. v. Dept. of Rev.,

356 Or 282, 295, 337 P3d 768 (2014)). To help determine

that plain meaning, this court often “consult[s] dictionary

definitions of the relevant terms,” while recognizing that

those definitions “lack context and often fail to capture the

nuanced connotations conveyed by the normal use of a term

in a particular context.” Id. at 461. In other words, although

dictionary definitions provide “some evidence of meaning,”

they “should not be relied on to resolve a dispute about plain

meaning without critically examining how the definitions

fits into the context of the statute itself.” Id.

The various dictionary definitions for the term

“weapon” highlight the dangers of relying solely on dictio-

nary definitions to determine the plain meaning of a statute.

Webster’s defines “weapon” as “an instrument of offensive or

defensive combat : something to fight with : something (as a

club, sword, gun, or grenade) used in destroying, defeating,

or physically injuring an enemy.” Webster’s Third New Int’l

Dictionary 2589 (unabridged ed 2002). Webster’s further defines

“instrument” as “a means whereby something is achieved,

performed, or furthered.” Id. at 1172. “Instrument” can be a

synonym for “utensil” and “implement.” Id. All three terms

refer to a device used “for performing a mechanical or manual

operation,” but instrument “suggests delicate construction or

precision work as in dentistry, surgery.” Id. at 1134. The term

is used to connote a device that is “any more or less precise * * *

for achieving any end.” Id. By contrast, “utensil” and “imple-

ment” suggest a broader category of objects used to carry out

a task. Implement “applies to anything, usu[ally] a contriv-

ance, necessary to effect an end or perform a task.” Id. Finally,

utensil “suggests something useful in accomplishing work,

esp[ecially] domestic work or work similar to it, and usu[ally]

manageable by hand.” Id. Accordingly, as used in Webster’s,

“weapon” can mean an instrument designed for combat or an

item used or usable in combat.

Other dictionaries define “weapon” in terms of

design or use. American Heritage defines “weapon” as “[a]n

instrument of attack or defense in combat, as a gun, missile,

Cite as 374 Or 461 (2025) 471

or sword. * * * A means used to defend against or defeat

another.” The American Heritage Dictionary 1961 (5th ed

2011). And Black’s defines “weapon” as “[a]n instrument of

offensive or defensive combat, or anything used, or designed

to be used, in destroying, defeating, threatening, or injur-

ing a person.” Black’s Law Dictionary 1593 (6th ed 1990).

In addition to defining the general term “weapon,” Black’s

provides definitions for specific types of weapons. Several

of those definitions focus on the design of the object. See,

e.g., Black’s at 1081 (defining “offensive weapon”—in the con-

text of criminal law and statutes—as an article “primarily

meant or adapted for attack and the infliction of injury”);

Black’s Law Dictionary 1909 (11th ed 2019) (defining “elec-

troshock weapon” as “[a] handheld device designed to inca-

pacitate a person by administering a painful electric shock

that disrupts musculoskeletal function” (emphasis added)).

Those definitions help show that, although the

word “weapon” is part of our common parlance, its mean-

ing proves quite mercurial—ranging from a narrow class

of objects specifically designed for combat to anything that

can be used to cause physical harm to another. The slippery

nature of the term may be best seen in the fact that both

the state and defendant cite the same dictionary definitions

yet reach different understandings of what constitutes a

“weapon.” For defendant, the term “weapon” covers a nar-

row class of instruments or objects specifically designed or

intended for use in combat. The state, in turn, reads the term

more broadly, focusing on an understanding of “weapon”

that includes any object that could be used to cause injury.3

Accordingly, we turn to context to help clarify the meaning

of “weapons” for purposes of ORS 137.540(1)(j). See Kohring

v. Ballard, 355 Or 297, 304, 325 P3d 717 (2014) (explaining

that “we examine word usage in context to determine which

among competing definitions is the one that the legislature

more likely intended”).

2. Contextual analysis

“A statute’s context includes, among other things,

its immediate context—the phrase or sentence in which

3

The state has proffered several alternative definitions for the meaning

of “weapon” as used in ORS 137.540(1)(j).

472 State v. Cortes

the term appears—and its broader context, which includes

other statutes on the same subject.” Shepard Inv. Grp. LLC

v. Ormandy, 371 Or 285, 290, 533 P3d 774 (2023). A statute’s

context also includes the preexisting statutory framework

within which the statute was enacted and prior opinions of

this court interpreting the relevant statutory wording. Ogle

v. Nooth, 355 Or 570, 584, 330 P3d 572 (2014) (citing Polacek

and Polacek, 349 Or 278, 284, 243 P3d 1190 (2010)). We

begin by providing an overview of the history of probation

supervision in Oregon to provide context for the weapons

condition and the broader statutory scheme governing pro-

bation. Swarens v. Dept. of Rev., 320 Or 326, 331, 883 P2d

853 (1994) (“The context of a statute includes the statute’s

development through successive legislatures.”).

a. History of probation supervision

The history of probation supervision provides

important context for understanding the meaning of the

weapons condition. Although the current version of the

weapons condition was not enacted until 1993, Or Laws

1993, ch 680, § 16, the legislature has regulated the condi-

tions of probation for much longer.

The legislature first enacted a statute concerning

probation in 1931. Or Laws 1931, ch 396. Under that new

law, courts were given the power to place criminal defen-

dants on probation if it appeared that probation would serve

“the best interests of the public as well as of the defendant.”

Or Laws 1931, ch 396, § 1. If a sentencing court determined

that probation was appropriate, it was required to deter-

mine the conditions of probation. Or Laws 1931, ch 396,

§ 3.4 The original supervision conditions statute did not list

4

Or Laws 1931, ch 396, § 3 provided:

“The court shall determine and may at any time modify the conditions of

probation and may include among them the following, or any other: That the

probationer (1) shall avoid injurious or vicious habits; (2) shall avoid places or

persons of disreputable or harmful character; (3) shall report to the probation

officer as directed by the court or probation officer; (4) shall permit the proba-

tion officer to visit him at his place of abode or elsewhere; (5) shall answer all

reasonable inquiries on the part of the probation officer; (6) shall work faith-

fully at suitable employment; (7) shall remain within a specified place; (8) shall

pay his or her fine, if any, in one or several sums; (9) shall make reparation or

restitution to the aggrieved parties for the damage or loss caused by offense, in

an amount to be determined by the court; (10) shall support his dependents.”

Cite as 374 Or 461 (2025) 473

required conditions of probation; instead, the law provided

a list of nonexclusive conditions that a court could impose.

Id. Notably, none of those conditions concerned the posses-

sion of weapons. Id. Once a court had identified the supervi-

sion conditions for a given probationer, the probation officer

was required to provide the probationer with a statement of

the conditions and instruct them on the meaning. Or Laws

1931, ch 396, § 6(4). When the Oregon Revised Statutes were

compiled in 1953, the required probation supervision condi-

tions were set out in ORS 137.540.

The probation statutes quickly assumed a central

role in Oregon’s criminal legal system and, by the 1970s, the

majority of criminal defendants were being placed on proba-

tion supervision. State v. Martin, 282 Or 583, 588 n 3, 580

P2d 536 (1978). With the rise of probation supervision came

increased litigation over the conditions of probation. In con-

sidering whether a condition of probation imposed under the

original probation statute was valid, this court explained

that it was required to assess whether the condition was

proportionate to the offense and the purposes of probation.

Id. at 588.5 We then identified three principal purposes of

probation: rehabilitation, freedom of the individual, and the

maintenance of public safety. Id.; see also Sobota v. Williard,

247 Or 151, 153, 427 P2d 758 (1967); Barker v. Ireland, 238

Or 1, 4, 392 P2d 769 (1964).

In 1981, the legislature restructured the probation

statutes, introducing the concept of general and special con-

ditions of supervision as part of House Bill (HB) 2317. Or

Laws 1981, ch 671, § 1. According to the available legislative

history, the Corrections Division and the Attorney General’s

Office drafted and introduced HB 2317 based on growing

concerns that sentencing courts were too vague in impos-

ing supervision conditions, which resulted in probation

5

The issue in Martin arose out of probation conditions that the trial court

had imposed as a result of the defendant’s guilty plea. At the time that Martin

was decided, former ORS 138.050 (1975), repealed by Or Laws 2017, ch 529, § 26,

allowed defendants who had pleaded guilty to appeal only from a judgment of

conviction that imposed “an excessive fine or excessive, cruel or unusual punish-

ment not proportionate to the offense has been imposed.” Although the defendant

in Martin also raised a constitutional challenge to her probation conditions, this

court decided the case on statutory proportionality grounds, concluding that the

condition violated former ORS 138.050 (1975). 282 Or at 589.

474 State v. Cortes

officers struggling to impose conditions to effectuate what

the officers believed was the sentencing court’s intent. Tape

Recording, House Committee on Judiciary, HB 2317, Jan

26, 1981, Tape 22, Side A (statement of O.R. Chambers,

Executive Assistant, Corrections Division). The drafters

explained that those vague conditions had led to problems

where probation officers misinterpreted the sentencing

court’s intent.

To address that problem, the drafters proposed a

system of general and special conditions—set out in ORS

137.540—that would provide greater clarity to probation

officers by setting standard conditions for all probationers

while maintaining judicial discretion to impose conditions

based on a criminal defendant’s offense. ORS 137.540(1)

(1981) set forth 15 general conditions applicable to all pro-

bationers—regardless of the offense—unless specifically

deleted by the sentencing court. ORS 137.540(2) (1981),

meanwhile, authorized sentencing courts to impose special

conditions of probation for “the protection of the public or

reformation of the offender.” It was in that 1981 legislation

that the legislature first enacted a supervision condition

concerning weapons. As a special condition of probation, the

sentencing court was permitted to impose a condition that a

probationer “[n]either own, possess nor control any firearm

or any other specified weapon.” ORS 137.540(2)(k) (1981).

In 1993, the legislature enacted the current weap-

ons condition set out in ORS 137.540(1)(j) as part of a

broader attempt to restructure the probation-related statu-

tory scheme. Before the 1993 amendments, only the courts

had the authority to adjudicate and sanction probationers

for probations violations. To ease the burden on judicial

and correctional resources, the legislature passed Senate

Bill (SB) 139 to create a system of “structured, intermedi-

ate sanctions” that could be imposed by a probation officer.

Or Laws 1993, ch 680, §§ 10-14. Notably, although SB 139

empowered the Department of Corrections to develop the

system of structured sanctions, it preserved the legislature

and the courts’ roles in defining the conditions of supervi-

sion. In other words, although the legislature expanded the

authority of probation officers by allowing them to impose

Cite as 374 Or 461 (2025) 475

sanctions, nothing in the legislative record suggests that the

legislature intended to grant probation officers discretion to

independently impose the conditions of probation, nor inter-

pret imposed conditions in a manner as to expand those con-

ditions beyond legislative or judicial intent.

In addition, the drafters of SB 139 explained that

the purpose of the bill was to balance correctional resources,

create more predictability for probationers and officers about

violations and potential consequences, and to systematize

a sanctions structure. See, e.g., Tape Recording, Senate

Committee on Ways & Means, Subcommittee on Public

Safety, May 14, 1993, SB 139, Tape 26, Side A and Tape

27, Side A (statement of Judge Ellis discussing how the bill

will reduce use of jail and prison beds and allow for proba-

tioners to know, with certainty, when conduct will result in

sanctions). The legislature ultimately enshrined those pol-

icy objectives in ORS 137.592, which states:

“The Legislative Assembly finds that:

“(1) To protect the public, the criminal justice system

must compel compliance with the conditions of probation

by responding to violations with swift, certain and fair

punishments.

“(2) Decisions to incarcerate offenders in state prisons

for violation of the conditions of probation must be made

upon a reasonably systematic basis that will insure that

available prison space is used to house those offenders who

constitute a serious threat to the public, taking into con-

sideration the availability of both prison space and local

resources.”

The development of the probation statutes since

1931 provides several important contextual clues for inter-

preting the weapons provision in ORS 137.540(1). First,

the purpose of the probation system is to promote a proba-

tioner’s freedom and need for rehabilitation so long as those

interests are consistent with public safety. Martin, 282 Or

at 588; see also State v. Donovan, 307 Or 461, 770 P2d 581

(1989). Second, it is Oregon’s policy to ensure that the pro-

bation system operates in a swift, certain, and consistent

manner. To achieve that policy, the legislature has devel-

oped a system of general and specific conditions of probation

476 State v. Cortes

with the goal of limiting the discretion of probation officers

to interpret judgments while, at the same time, providing

probationers with clear notice of what conduct is prohibited

and required while under supervision.

With that context in mind, it is unlikely that the

legislature intended for “weapons” to mean literally any-

thing capable of being used to inflict injury. Such a defini-

tion would capture a nearly endless number of objects and

would give probation officers unreasonably broad authority

to determine what objects constitute weapons. That result

would deprive probationers of fair notice about what conduct

would constitute a violation. Moreover, it would lead to arbi-

trary enforcement, with each probation officer determining

individually whether a particular object is a weapon in a

particular circumstance, as exemplified by the testimony of

the probation officer in this case who, when asked to define

a weapon, said it was “[a]nything that can cause me harm.”

b. Reading “weapons” in the context of

ORS 137.540(1)(j)

We continue our contextual analysis by turning

to other words and phrases used in ORS 137.540(1)(j) to

determine whether that context provides additional insight

into the meaning of the weapons provision. See Goodwin

v. Kingsmen Plastering, Inc., 359 Or 694, 702, 375 P3d 463

(2016) (“It is a familiar rule that the meaning of words in a

statute may be clarified or confirmed by reference to other

words in the same sentence or provision.”). In addition to for-

bidding people on probation from possessing weapons, ORS

137.540(1)(j) also prohibits those individuals from possess-

ing firearms and dangerous animals.

According to the state, the words immediately

following the word weapons—“firearms” and “dangerous

animals”—“connote[ ] objects both designed and having

the potential to cause harm” because, while it is true that

“[f]irearms are designed for force[,] dangerous animals are

not designed in the same way but can cause physical harm.”

We disagree. Contrary to the state’s assertions, that con-

text does not support a broad definition of “weapons” that

Cite as 374 Or 461 (2025) 477

“connotes objects both designed and having the potential to

cause harm.”

We note that the Oregon Criminal Code tends to

define firearms in terms of design. ORS 166.210—which

provides the applicable definitions for terms used in, among

other laws, the crime of unlawful possession of firearms,

ORS 166.250, and the statutory requirements for the trans-

fer and sale of firearms, ORS 166.410 - 166.470—defines

“firearm” as “a weapon, by whatever name known, which

is designed to expel a projectile by the action of powder.”

ORS 166.210(3) (emphasis added). In addition to providing

that general definition, the statute provides definitions for

specific subtypes of firearms, relying again on particular

design elements as the foundation for those definitions. See,

e.g., ORS 166.210(6) (defining “handgun” as “any pistol or

revolver using a fixed cartridge containing a propellant

charge, primer and projectile, and designed to be aimed or

fired otherwise than from the shoulder”); ORS 166.210(7)

(defining “machine gun” as “a weapon of any description

by whatever name known, loaded or unloaded, which is

designed or modified to allow two or more shots to be fired

by a single pressure on the trigger device”).

Nor do we find the use of term “dangerous animal”

particularly supportive of the state’s “use-based” reading

of weapon. We presume that the legislature was aware of

existing law—including the common law—at the time that

it enacted ORS 137.540(1)(j). See Blachana, LLC v. Bureau

of Labor & Indus., 354 Or 676, 691, 318 P3d 735 (2014). At

the time that that provision was enacted, the legislature

had not previously used or defined the term “dangerous

animals.”6 However, although the legislature had not used

that term at the time, this court had—specifically in the

context of tort liability. See Lange By & Through Lange

v. Minton, 303 Or 484, 738 P2d 576 (1987) (assessing tort

liability for ordinance prohibiting the possession of exotic,

6

Although the legislature did not enact any law concerning “dangerous” ani-

mals until 2005, Or Laws 2005, ch 840, § 2(2) (setting out “the crime of maintain-

ing a dangerous dog”), some municipalities had enacted ordinances regulating

the possession of dangerous animals. See Lange By & Through Lange v. Minton,

303 Or 484, 491-92, 738 P2d 576 (1987) (discussing Salem ordinance that prohib-

ited the possession of “[a]n exotic, wild, or dangerous animal”).

478 State v. Cortes

wild, or dangerous animals); Westberry v. Blackwell, 282

Or 129, 131-33, 577 P2d 75 (1978) (discussing potential tort

liability for dangerous animals). In those cases, this court

considered whether a person’s possession of a particular ani-

mal could give rise to liability for the harm caused by that

animal, often relying on principles set out in Restatement

(Second) of Torts (1974). See, e.g., Westberry, 282 Or at 133

(citing to Restatement); Chance v. Ringling Bros. Barnum

& Bailey, Combined Shows, Inc., 257 Or 319, 478 P2d 613

(1970) (same).

The term “dangerous animal” has a particular

meaning in tort law. Although that meaning is not based on

design in the way that firearms are designed, it does rely on

a similar rationale of categorization based on specific and

identifiable characteristics. The Restatement imposes strict

liability on the possessor of wild animals on the theory that

those animals have certain dangerous traits that arise from

their particular class or species. Restatement § 506(1) (defin-

ing a “wild animal” as “an animal that is not by custom

devoted to the service of mankind at the time and in the

place in which it is kept”); Restatement § 506 comment b

(explaining that as a general rule “wild animals are dan-

gerous”); Restatement § 507 comment c (“One who keeps a

wild animal is required to know the dangerous propensities

normal to the class to which it belongs. * * * Thus a keeper

of an elephant that for years has shown none of the danger-

ous traits common to elephants as a class is liable under

the rule stated in this Section if the elephant suddenly and

unexpectedly exhibits these traits.”). The Restatement also

recognizes that there are some classes or species of domestic

animals that, as a group, have dangerous characteristics.

Restatement § 509 comment e (“There are certain classes of

domestic animals in which dangerous propensities are nor-

mal although abnormal in other classes of their species.”).

It is true individual animals can be classified as

dangerous if that animal has actually harmed or threat-

ened to harm another. See Black’s at 1593 (defining “danger-

ous animal” as “[a]n animal that has harmed or has threat-

ened to harm a person or another animal”). But the concept

of “dangerous animals” weaves aspects of nature or design,

Cite as 374 Or 461 (2025) 479

and use or behavior, in such a way that is fails to provide

convincing context for either approach.

c. Reading “weapons” in the context of

ORS 137.540 as a whole

A statute’s context also includes other provisions of

the same statute. See Lane County v. LCDC, 325 Or 569,

578, 942 P2d 278 (1997) (explaining that, when construing a

statute, “we do not look at one subsection of a statute in a vac-

uum; rather, we construe each part together with the other

parts in an attempt to produce a harmonious whole”). When

a statute contains several provisions, this court endeavors

to adopt a construction that gives effect to the entirety of

the statute. See ORS 174.010 (“In the construction of a stat-

ute, the office of the judge is simply to ascertain and declare

what is, in terms or in substance, contained therein, * * *

and where there are several provisions or particulars such

construction is, if possible, to be adopted as will give effect

to all.”). Indeed, “[a]s a general rule, we also assume that

the legislature did not intend any portion of its enactments

to be meaningless surplusage.” State v. Clemente-Perez, 357

Or 745, 755, 359 P3d 232 (2015); see also SAIF v. Ward, 369

Or 384, 398, 506 P3d 386 (2022) (explaining that “this court

will generally attempt to avoid a statutory construction that

creates redundancy in the way that the statute is read”).

In this case, several other provisions and terms in

ORS 137.540 provide additional contextual support for the

conclusion that the legislature intended the term “weapons”

in ORS 137.540(1)(j) to be understood to turn on whether

a given instrument was designed for combat as opposed to

whether an item was used or is usable to inflict injury. First,

as noted, ORS 137.540(1)(j) prohibits a probationer from

“possess[ing]” weapons, and, as we will explain, the word

“possess” in that phrase informs our understanding of the

word “weapons.”

The word “possess” is not defined in ORS 137.540,

but it has a specific meaning when used in the context of

Oregon criminal law. As we explained in State v. Fries,

344 Or 541, 545-47, 185 P3d 453 (2008), the word “possess”

encompasses two alternatives: (1) physically controlling the

480 State v. Cortes

property—what we call “actual” possession—and (2) exer-

cising dominion or control over the property—what we call

“constructive” possession. See also State v. Barger, 349 Or

553, 559, 247 P3d 309 (2011), adh’d to as modified on recons,

350 Or 233, 253 P3d 1030 (2011) (so holding). Similarly,

ORS 161.015(9) provides that, in the Criminal Code, unless

another statute specifically defines it otherwise, “possess”

means “to have physical possession or otherwise to exercise

dominion or control over property.” ORS 161.015(9) (emphasis

added). Said another way, when one physically holds a knife

in one’s hand, one is actually possessing the knife. When a

person keeps a knife in a kitchen drawer, the person is still

possessing the knife—via constructive possession—because

the person exerts dominion or control over the home, and

thus, over the knife in the drawer. Both actual and construc-

tive possession are “possession.”7

The definition of possession found in ORS 161.015(9)

is not directly made applicable to ORS 137.540, yet it is still

important context. If words in a statute have a well-defined

legal meaning, then we will give those words that meaning

in construing the statute. Gaston v. Parsons, 318 Or 247,

253, 864 P2d 1319 (1994); see also State v. Perry, 336 Or 49,

53, 77 P3d 313 (2003) (noting same). “Possession” is a well-

defined term in criminal law, and, accordingly, the concepts

of actual and constructive possession apply across a variety

of statutes that concern possession of narcotics, pornogra-

phy, and the like. We therefore understand the word “pos-

sess” in ORS 137.540, which is concerned with criminal pro-

bation, as it is commonly understood in other legal contexts,

despite the statute itself not defining the term. See McIntire

v. Forbes, 322 Or 426, 431, 909 P2d 846 (1996) (“Analysis of

text also includes reference to wellestablished legal mean-

ings for terms that the legislature has used.”); State v.

7

At the probation violation hearing, Vidal testified as follows:

“[DEFENSE COUNSEL:] So is it your position that if he’s about to sit

down for dinner and he has a steak knife next to him he needs to call you first

and ask whether or not he can use that to eat his food?

[VIDAL:] If he’s using it to just eat * * * [n]o. * * * But if he’s walking

around with a knife in his backpack he shouldn’t be.”

That testimony suggests that one would not “possess” a knife when using it to eat

but would “possess” a knife when carrying it in a backpack. That is incorrect, as

just explained.

Cite as 374 Or 461 (2025) 481

Dumond, 270 Or 854, 858, 530 P2d 32 (1974) (“[W]ords used

in a statute which have a well defined legal meaning are to

be given that meaning in construing the statute.”).

When we look for the legislative intent behind a

word choice in a statute, we presume that the legislature

was aware of the existing law and the legal definitions and

common understanding of terms used within the statute.

Martin v. City of Tigard, 335 Or 444, 453, 72 P3d 619 (2003);

Ryerse v. Haddock, 337 Or 273, 280-81, 95 P3d 1120 (2004)

(noting same). Accordingly, in considering the use of the

phrase “not possess weapons, firearms or dangerous ani-

mals” in ORS 137.540(1)(j), we presume that the legislature

would have understood that it was prohibiting both actual

and constructive possession. In other words, the legislature

would have known that, in prohibiting a probationer from

possessing weapons, it was prohibiting a probationer from

not only holding a weapon or carrying it on their person, but

also from keeping one in their home.8

Given the unambiguous meaning of the term “pos-

sess,” we cannot conclude that the legislature intended the

term “weapons” to be defined by potential use rather than

design. The state’s interpretation would require us to hold

that a probationer would be prohibited from keeping any

number of objects in their home, including, among other

things, hammers, saws, axes for firewood, baseball bats,

kitchen knives of all varieties, and many kinds of cutlery,

even plastic picnic cutlery. We find it highly unlikely the leg-

islature would have intended to put probationers in such a

situation.

In addition, two other conditions of probation set

out in ORS 137.540, when read together, provide important

contextual support for the conclusion that the legislature

did not intend for “weapons” to mean anything that could

be used to inflict injury. ORS 137.540(1)(f) provides that a

probationer must allow their probation officer to “visit the

8

The dissent would interpret the term “possess,” for purposes of ORS 137.540,

as possession with intent to use. For the dissent, the object is not self-determina-

tive of whether it is a weapon; rather, the dissent would find that it is a weapon for

purposes of a probation violation if the probationer “possessed it as a weapon.” __

Or at __ (Bushong, J., dissenting) (slip op at ___). A statute so written might have

benefits over the statute at issue here, but it is not the statute before us.

482 State v. Cortes

probationer or the probationer’s work site or residence and

to conduct a walk-through of the common areas and of the

rooms in the residence occupied by or under the control of

the probationer.”9 And ORS 137.540(1)(g) authorizes a pro-

bation officer to request consent to search the probationer,

their vehicle, or the premises if the officer has “reasonable

grounds to believe that evidence of a violation will be found.”

To have “reasonable grounds,” a probation officer must “pos-

sess information that causes the officer reasonably to believe

that the probationer is violating a condition of probation and

that a search of the probationer’s person, residence, vehicle,

or property would disclose evidence of a probation violation.”

State v. Gulley, 324 Or 57, 67, 921 P2d 396 (1996).

Thus, if the term “weapons” were understood to

mean any object capable of causing injury to another, then

it is hard to imagine any circumstance where a probation

officer would not see something during a visit that would

give the officer reasonable grounds to believe that evidence

of a violation will be found, and that, in turn, would permit

the officer to request consent to search. And refusal to pro-

vide consent can itself result in a probation violation. State

v. Reed, 371 Or 478, 490, 538 P3d 195 (2023). The state has

given us no reason to believe that the legislature intended to

so broaden the circumstances under which probationers can

be required to consent to a search.

d. Related Statutes

A statute’s context also includes related statutes.

State v. Klein, 352 Or 302, 309, 283 P3d 350 (2012). ORS

166.240 criminalizes the concealed carrying of certain

“sharp or blunt” weapons without regard to whether the

possessor “intended unlawful use.” City of Portland v. Lodi,

308 Or 468, 473, 782 P2d 415 (1989). In 1993, that statute

provided:

“[A]ny person who carries concealed upon the per-

son any knife having a blade that projects or swings into

9

The visitation condition was largely the same when the current weapons

condition was enacted. In 1993, the visitation condition stated that a probationer

shall “[p]ermit the probation officer to visit the probationer or the probationer’s

residence or work site, and report as required and abide by the direction of the

supervising officer.” ORS 137.540(1)(h) (1993).

Cite as 374 Or 461 (2025) 483

position by force of a spring or by centrifugal force and

commonly known as a switchblade knife, any dirk, dagger,

ice pick, slung shot, metal knuckles, or any similar instru-

ment by the use of which injury could be inflicted upon the

person or property of any other person, commits a Class B

misdemeanor.”

ORS 166.240(1) (1977), amended by Or Laws 1989, ch 839,

§ 21. The catchall provision, “any similar instrument,” was

not intended “to outlaw the concealed carrying of any knife

that was not a switchblade, dirk, or dagger.” Lodi, 308 Or

at 475. Instead, the legislature intended only to restrict the

concealed carrying of certain types of bladed instruments

that historically had been used in combat. See State v.

Delgado, 298 Or 395, 401, 692 P2d 610 (1984) (noting that

daggers were “primarily for combat” (citing Harold Peterson,

American Knives (1958)); see also Peterson, American Knives

at 2, 95, 102 (discussing how dirks are a type of knife that

could be an “efficiently designed weapon” and was “a com-

panion to and substitute for the sword”). Thus, when the leg-

islature listed the bladed instruments that it considered to

be weapons under ORS 166.240, it listed only those instru-

ments designed for combat. It did not include steak knives,

for example.

The state points to the definition of “weapon” in

ORS 166.360 as relevant context. That statute defines vari-

ous words and phrases for purposes of the statutory prohibi-

tion on possession of weapons in public buildings and court

facilities. Under that statute, the term “weapon” is defined

as, among other things, “[a]ny dirk, dagger, ice pick, sling-

shot, metal knuckles or any similar instrument or a knife,

other than an ordinary pocketknife with a blade less than

four inches in length, the use of which could inflict injury

upon a person or property.” ORS 166.360(10)(b). The state

argues that that definition shows that the legislature has

already made the policy decision to define any knife as a

weapon “other than an ordinary pocketknife with a blade

less than four inches in length.” However, that definition

was enacted 22 years after the weapons prohibition in ORS

137.540(1)(j), and, as noted, it applies only to the possession

of weapons in public buildings and court facilities. Moreover,

as the state acknowledged in argument before us, applying

484 State v. Cortes

that definition of “weapon” to the probation condition pro-

hibiting possession of weapons would prohibit probationers

in Oregon from possessing kitchen knives, a result that we

are not persuaded that the legislature intended.

e. Case Law

Existing case law also forms a part of a statute’s

context. State v. Eggers, 372 Or 789, 800, 558 P3d 830 (2024).

Here, the state argues that our decision in Delgado supports

the proposition that knives are always both a tool and a

weapon designed to cause physical injury. Accordingly, the

state argues, we have already determined that all knives

are, per se, weapons. We disagree.

The issue in Delgado was whether a switchblade

was an “arm” protected under Article I, section 27, of the

Oregon Constitution. There, the state argued that a switch-

blade pocketknife was not “not a weapon ‘commonly used for

personal defense.’ ” Delgado, 298 Or at 399. We rejected the

state’s “distinction [between] * * * ‘offensive’ and ‘defensive’

weapons,” reasoning that “[a]ll hand-held weapons neces-

sarily share both characteristics.” Id. at 399-400. We dis-

cussed the long and complicated history of knives “as both

instruments of labor and combat” in the context of Article I,

section 27. Id. at 402. Along the way, we noted that “knives

have played an important role in American life, both as

tools and as weapons. The folding pocketknife, in particu-

lar, since the early 18th century has been commonly carried

by men in America and used primarily for work, but also for

fighting.” Id. at 403.

Contrary to the state’s assertion, Delgado supports

the proposition that objects in general, and knives in par-

ticular, possess a primary design, such that they can be

designed primarily as tools, and others can be designed pri-

marily to be weapons. Delgado held that a switchblade was

an “arm” for purposes of the constitutional provision:

“A switch-blade is defined as a ‘pocketknife having the blade

spring-operated so that pressure on a release catch causes

it to fly open.’ If ORS 166.510(1) proscribed the possession

of mere pocketknives, there can be no question but that

the statute would be held to conflict directly with Article I,

Cite as 374 Or 461 (2025) 485

section 27. The only difference is the presence of the

spring-operated mechanism that opens the knife. We are

unconvinced by the state’s argument that the switch-blade

is so ‘substantially different from its historical antecedent’

(the jackknife) that it could not have been within the con-

templation of the constitutional drafters.”

Id. at 403 (citations omitted). We do not read Delgado to hold

that all knives are, per se, always weapons, as that term is

used in the statute at issue here.

3. Legislative History

Having considered text and context, we turn to leg-

islative history. In 1981, the initial drafts of HB 2317—the

bill that created general and special conditions of proba-

tion—prohibited a probationer from possessing “any firearm

or any other specified weapon” as a general condition of pro-

bation. Stephen Griffith, legislative counsel, was concerned

that the term “weapon” would lead to “line drawing prob-

lems” regarding kitchen knives, letter openers, ice picks and

chains. Tape Recording, House Committee on Judiciary, HB

2317, Jan 26, 1981, Tape 22, Side A. Those concerns were

echoed by the Metropolitan Public Defender (MPD), the

Oregon Trial Lawyers Association (OTLA), and the Oregon

District Attorney’s Association (ODAA). Tape Recording,

House Committee on Judiciary, HB 2317, Jan 26, 1981,

Tape 22, Side A (statement of Marcy Hertzmark, represent-

ing MPD); Tape Recording, Senate Committee on Judiciary,

HB 2317, May 7, 1981, Tape 167, Side B (statement of Jerry

Cooper, representing the ODAA); Minutes, Senate Justice

Committee, HB 2317, May 7, 1981 (statement of Richard

Barton, representing OTLA).

Jerry Cooper, representing the ODAA, noted that

“weapon” was subject to interpretation, and the definition

of “deadly weapon” could provide a more precise defini-

tion because it would include instruments, such as switch-

blades, that were specifically manufactured for the purpose

of injuring or killing someone.10 Tape Recording, Senate

10

Cooper’s distinction between “deadly” and “dangerous” weapons was based

on the definitions that the legislature had enacted in 1971 as part of the revision

of the Criminal Code. The Commentary to Criminal Law Revision Commission

Proposed Oregon Criminal Code provided several examples of non-firearm

“instruments designed for offensive or defensive purposes,” namely, “metallic

486 State v. Cortes

Justice Committee, HB 2317, May 7, 1981, Tape 167, Side B.

A weapon, on the other hand, lacked clarity and “could be

any piece of property; it’s just the way it’s attempted to be

used or used that makes it dangerous. That could be a glass

or a chair. It would be very difficult to define which danger-

ous weapon you had in mind.” Id.

In 1993, the legislature made the weapons prohi-

bition a general condition and amended its wording to the

current iteration, prohibiting a probationer from possessing

“weapons, firearms or dangerous animals.” Or Laws 1993,

ch 680, § 16. Although the 1993 discussion of “weapons” was

not as robust as in 1981, it does show further concern over a

potential use-based definition of weapons.

While the legislature was considering whether to

amend the probation conditions, it was also considering Senate

Bill (SB) 334 (1993), which amended ORS 166.370 (prohibit-

ing certain weapons in public buildings) and ORS 166.280

(prohibiting possession of concealed weapons) to prohibit the

“intentional” possession of “dangerous weapons” under the

circumstances of those two statutes. Or Laws 1993, ch 625,

§§ 1, 2, 4. In discussions on that bill, the legislature was

made aware that almost anything could constitute a “danger-

ous weapon”; it was provided the examples of boiling water,

a car, a rock, cowboy boots, and the sidewalk as instances

when mundane objects became “dangerous weapons.” Tape

Recording, Senate Committee on Judiciary, SB 334, Feb 10,

1993, Tape 22, Side A (statement of Ross Shepard, represent-

ing the Oregon Criminal Defense Lawyers Association). To

prevent someone from unwittingly committing a crime by

bringing an object that could be considered a “dangerous

weapon” to a public building, the legislature required that

the person “intentionally” possess the instrument used as a

“dangerous weapon.” Tape Recording, Senate Committee on

Judiciary, SB 334, Mar 1, 1993, Tape 35, Side B (conversation

between Sen Jeannette Hamby and legislative counsel).

knuckles, billies, switchblade knives and gravity knives.” Commentary § 3 at

4. A deadly weapon, on the other hand, was an instrument of combat that was

designed to cause serious injury or death. The commentary thus suggests that

when “weapon” is unmodified by either “deadly” or “dangerous” it is referring

to an instrument designed for combat, but which might be designed to produce

injury short of serious physical injury or death such as pepper spray or tear gas.

Cite as 374 Or 461 (2025) 487

Against the backdrop of SB 334, some senators

believed that the word “weapons” should be defined in the

probation conditions statute. Senator Jeannette Hamby,

the primary sponsor of SB 334, suggested that the term

“weapons” in ORS 137.540(1)(j) could be defined using the

definition of “dangerous weapon” contained in the United

States Code. Referring to her work on SB 334, Senator

Hamby noted that she had learned that objects that an

average person may not consider a weapon—like a “unique

kind of bat”—could constitute a dangerous weapon. Tape

Recording, Senate Committee on Judiciary, SB 138, Feb 3,

1993, Tape 16, Side A. Vice Chair Robert Shoemaker agreed

that “weapon” should be better defined but suggested that it

should be tied to the Oregon Criminal Code. Id. He expressed

concern that, if a weapon “could be anything you use, * * *

it would be awfully broad.” Id. Dale Penn, representing the

ODAA, agreed that the legislature could tie the definition of

“weapons” to the Criminal Code, “which would detail knives

and different types of things” that a probationer could not

possess. Id.

Puzzlingly, despite both the prosecution and

defense communities raising the problems with leaving the

term “weapon” undefined, the legislature took no action in

either 1981 or in 1993. Ultimately, the legislature decided to

leave “weapon” undefined not once, but twice. That inaction

is subject to multiple plausible interpretations. Certainly, on

the one hand, we might conclude that the legislature knew

of the problem and its inaction reflects an intended result.

On the other hand, nothing we have seen in our

review of the legislative history, either in 1981 or 1993,

suggests that anyone in the legislature actually wanted to

create such ambiguity. Quite to the contrary, the legislative

record is clear that the situation the 1981 legislature was

reacting against was the growing concern that supervision

conditions had become too vague, and that therefore pro-

bation officers had been acting in a nonuniform manner.

Tape Recording, House Committee on Judiciary, HB 2317,

Jan 26, 1981, Tape 22, Side A (statement of O.R. Chambers,

Executive Assistant, Corrections Division). The purpose

of the 1981 legislation was to address this concern and to

488 State v. Cortes

increase, not diminish, predictability in probation condi-

tions. Given the purpose of the legislation, as one might

expect, there is no instance in the legislative record of any-

one—elected official or advocate—supporting the potential-

ity that probationers would be prohibited from possessing

anything that could be used as a weapon—including a chair

or a pot of boiling water, as were discussed on the record.

These concerns were surely identified, but nothing indicates

those outcomes were affirmatively desired by anyone.

4. Constitutional avoidance

To sum up our review thus far, the text of “weap-

ons” is ambiguous. Context is somewhat inconclusive, but

perhaps slightly supports a design-based definition. And

legislative history is inconclusive, but certainly shows that

the legislature was aware of the risks of a use-based defini-

tion and took no corrective action. As we said in Gaines, “[i]

f the legislature’s intent remains unclear after examining

[text, context and] legislative history, ‘the court may resort

to general maxims of statutory construction to aid in resolv-

ing the remaining uncertainty.’ ” 346 Or at 164-65. We con-

clude that is appropriate in this case.

“It is a maxim of statutory construction that, when

a statute is capable of more than one plausible interpreta-

tion, the court will avoid an interpretation that raises a con-

stitutional problem.” Bonner v. Am. Golf Corp. of California,

Inc., 372 Or 814, 844, 558 P3d 812 (2024); see also State v.

Stoneman, 323 Or 536, 540 n 5, 920 P2d 535 (1996) (“[A] court

will give a statute such an interpretation as will avoid consti-

tutional invalidity.”); Salem College & Academy, Inc. v. Emp.

Div., 298 Or 471, 481, 695 P2d 25 (1985) (holding same).

We have previously held that the Oregon

Constitution requires that “[t]he terms of a criminal statute

must be sufficiently explicit to inform those who are subject

to it of what conduct on their part will render them liable

to its penalties.” State v. Graves, 299 Or 189, 195, 700 P2d

244 (1985) (citing State v. Hodges, 254 Or 21, 27, 457 P2d

491 (1969)). We have further held that “[t]he equal privileges

and immunities clause is also implicated when vague laws

give unbridled discretion to judges and jurors to decide what

Cite as 374 Or 461 (2025) 489

is prohibited in a given case, for this results in the unequal

application of criminal laws.” Id. That concern would apply

equally to discretion given to probation officers.

In the past, we have considered whether a statute

provided “fair warning” under a federal due process test.

State v. Illig-Renn, 341 Or 228, 241, 142 P3d 62 (2006) (“In

assessing a claim that a criminal statute fails to give fair

warning, we employ the standard that federal courts have

applied to criminal and quasi-criminal statutes—whether

the statute would ‘give the person of ordinary intelligence a

reasonable opportunity to know what is prohibited so that he

may act accordingly.’ ” (Quoting Grayned v. City of Rockford,

408 US 104, 108, 92 S Ct 2294, 33 L Ed 2d 222 (1972)).11 The

United States Supreme Court has emphasized that the con-

ditions of supervision be sufficiently clear to provide notice

of what behavior is prohibited. See Griffin v. Wisconsin, 483

US 868, 875 n 3, 107 S Ct 3164, 97 L Ed 2d 709 (1987) (“If the

[probation] regulation in question established a standard of

conduct to which the probationer had to conform on pain

of penalty—e.g., a restriction on his movements—the state

court could not constitutionally adopt so unnatural an inter-

pretation of the language that the regulation would fail to

provide adequate notice.”).

The “fair warning” principle has been reinforced in

lower federal courts. For example, in United States v. Evans,

883 F3d 1154, 1164 (9th Cir 2018), the court stated, “A proba-

tioner must be put on clear notice of what conduct will (and will

not) constitute a supervised release violation.” See also United

States v. Simmons, 343 F3d 72, 81 (2d Cir 2003) (holding that

11

We have never foreclosed a state constitutional basis for a “fair warning”

requirement. Article I, section 34 of the Oregon Constitution provides, in part:

​ “(2) Upon conviction of a crime, an Oregon court or a probation or parole

agency may order the convicted person to engage in education, counseling,

treatment, community service or other alternatives to incarceration, as part

of sentencing for the crime, in accordance with programs that have been in

place historically or that may be developed in the future, to provide account-

ability, reformation, protection of society or rehabilitation.”

Neither accountability nor reformation can be accomplished through behavioral

prohibitions that fail to provide an individual fair notice of what is and is not pro-

hibited conduct. Accordingly, at least in the context of probationary conditions,

Article I, section 34, provides an independent and adequate state constitutional

grounding for the “fair warning” principles otherwise contained in the due pro-

cess requirement of the United States Constitution.

490 State v. Cortes

probation conditions must be “sufficiently clear to give the

person of ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act accordingly.”). It

has also been replicated by state courts applying due process

principles. See, e.g., In re Sheena K., 40 Cal 4th 875, 890, 153

P3d 282, 294 (2007) (explaining that a probation condition

“must be sufficiently precise for the probationer to know what

is required”); State v. Allen, 370 SC 88, 97, 634 SE2d 653, 657

(2006) (“ ‘It is an essential component of due process that indi-

viduals be given fair warning of those acts which may lead to

a loss of liberty. This is no less true whether the loss of liberty

arises from a criminal conviction or the revocation of proba-

tion. * * * [W]here the proscribed acts are not criminal, due

process mandates that [a probationer or parolee] cannot be

subjected to forfeiture of his liberty for those acts unless he

is given prior fair warning.’ ” (Quoting United States v. Dane,

570 F2d 840, 843-44 (9th Cir 1977).).

In addition to providing notice to the individual

being supervised, other jurisdictions have explained that

supervision conditions must be sufficiently clear so as to pre-

vent officers from impermissibly exercising their own discre-

tion in interpreting the meaning of those conditions. See, e.g.,

Evans, 883 F3d at 1164 (“[A] vague supervised release con-

dition ‘cannot be cured by allowing the probation officer an

unfettered power of interpretation, as this would create one

of the very problems against which the vagueness doctrine is

meant to protect, i.e., the delegation of basic policy matters to

policemen for resolution on an ad hoc and subjective basis.’ ”

(Quoting United States v. Soltero, 510 F3d 858, 867 n 10 (9th

Cir 2007).); see also State v. Wallmuller, 194 Wash 2d 234,

240, 449 P3d 619, 621 (2019) (explaining that a condition bar-

ring an individual from frequenting “places where children

congregate” was unconstitutionally vague under the federal

and state constitutions without some clarifying language or

an illustrative list of prohibited locations because ordinary

people could not understand what conduct is proscribed and

the condition was vulnerable to arbitrary enforcement).

Considering the need for fair notice, the state’s

proffered reading of “weapons” in ORS 137.540—partic-

ularly when considered within the context of constructive

Cite as 374 Or 461 (2025) 491

possession—invites potential state and federal constitu-

tional problems, independently under Article I, section 34, of

the Oregon Constitution, and the state constitutional princi-

ples articulated in Graves, 299 Or 189, and separately under

the Due Process Clause of the federal constitution. If the

term “weapons” is defined by situational use, then virtually

anything in the home can be a weapon when used in a par-

ticular manner. Defining a weapon in terms of how an object

is used works well when evaluating past behavior, such as

criminal statutes that apply to actions already undertaken.

But probation conditions exist to regulate future behavior.

A situational “use” definition applied to constructive pos-

session makes it nearly impossible for probationers to pre-

dict what future behavior would, or would not, be prohib-

ited. Further, it invites arbitrary enforcement that would

vary between probation officers. For these reasons, we reject

the state’s definition of “weapons,” in favor of a definition of

“weapons” tied to the features of an object’s design.

We note that other jurisdictions with supervision

conditions concerning weapons utilize a design-based, not

a use-based, definition. For instance, the federal sentencing

guidelines, United States Sentencing Guideline § 5D1.3(c)

(10) (2024), include as a standard condition for supervised

release that the “defendant shall not own, possess, or have

access to a firearm, ammunition, destructive device, or dan-

gerous weapon (i.e., anything that was designed, or was

modified for, the specific purpose of causing bodily injury

or death to another person, such as nunchakus or tasers).”

Similarly, North Dakota defines the probation condition that

a probationer not possess a “dangerous weapon” to prohibit

possession of “any switchblade or gravity knife, machete,

scimitar, stiletto, sword, or dagger; any billy, blackjack, sap,

bludgeon, cudgel, metal knuckles, or sand club; any sling-

shot; any bow and arrow, crossbow, or spear; any weapon

that will expel, or is readily capable of expelling, a projectile

by the action of a spring, compressed air, or compressed gas

including any such weapon, loaded or unloaded, commonly

referred to as a BB gun, air rifle, or CO2 gun; and any pro-

jector of a bomb or any object containing or capable of pro-

ducing and emitting any noxious liquid, gas, or substance.”

ND Cent Code Ann § 12.1-01-04.

492 State v. Cortes

We also emphasize that our holding here does not

foreclose that the actual use of a tool as a weapon can con-

stitute a probation violation. Using an object as a weapon

to coerce, threaten, or menace someone else may consti-

tute criminal activity. See e.g, ORS 163.275 (coercion); ORS

166.065 (harassment); ORS 163.190 (menacing). Further,

even an attempt—intentionally taking “a substantial step

toward[s]”—coercion, harassment, or menacing another with

an object used as a weapon, can constitute criminal activity.

See e.g., ORS 161.405 (“A person is guilty of an attempt to

commit a crime when the person intentionally engages in

conduct which constitutes a substantial step toward com-

mission of the crime.”). Accordingly, actual use of an object

as a weapon, even an object not designed for combat, can

potentially constitute a probation violation under the “obey

all laws” general probation condition. Here, the state did not

allege that defendant’s carrying of the knife in his backpack

constituted any completed new criminal activity, nor an

attempt to commit new criminal activity.

The sole question in this case is the legislative

intent in using the term “weapons” in the general condi-

tions of probation. Nothing in our decision today forecloses

an individual court from constructing a special condition of

probation for knives or other forms of potentially dangerous

tools—such as, for example, a special condition prohibiting

actual possession of any type of knife, regardless of design,

outside the home, unless possessed for work purposes—as

long as the record supports that such a condition is “reason-

ably related to the crime of conviction or the needs of the

probationer for the protection of the public or reformation of

the probationer, or both.” ORS 137.540(2) (permitting impo-

sition of special conditions in that circumstance); Donovan,

307 Or at 466 (“A condition of probation that ‘does not pro-

mote public safety or rehabilitation is not permitted under

the statute.’ ” (Quoting Martin, 282 Or at 588.)).

III. CONCLUSION

To summarize: Based on our analysis of the text,

context, and legislative history, and relying on the maxim

of constitutional avoidance, we conclude that the legislature

intended for the term “weapons” in ORS 137.540 to apply

Cite as 374 Or 461 (2025) 493

to instruments designed primarily for offensive or defensive

combat or instruments that would reasonably be recognized

as having substantially the same character, and not to tools

or objects designed primarily for utility, even when those

tools can be used as weapons under some circumstances.

Applying that understanding of the term “weapon” in ORS

137.540(1)(j) to the facts of this case, we conclude that the

trial court erred in finding that defendant had violated the

general probation weapons condition. The trial court relied

largely on the state’s argument that all knives are, per se,

weapons. As we have indicated, that argument is incorrect.

Because the court did not conduct the proper inquiry, we

reverse the trial court’s judgments and remand for further

proceedings in light of this decision.

The decision of the Court of Appeals is reversed. The

judgments of the circuit court are reversed, and the case is

remanded to the circuit court for further proceedings.

BUSHONG, J., dissenting.

The majority opinion concludes that the knife that

defendant’s probation officer saw sticking out of his back-

pack was not a “weapon” for purposes of ORS 137.540(1)(j)

unless it was “designed primarily for offensive or defensive

combat[ ]” or “would reasonably be recognized as having

substantially the same character.” __ Or at __ (slip op at

2:1-7). The majority remands to the trial court to engage in

a “factual inquiry” into that question. __ Or at __ (slip op at

2:12-14). I disagree with that disposition and with the test

adopted by the majority opinion for determining whether a

knife—or, for that matter, other implements that can be used

as both tools and weapons—should be considered a weapon

for purposes of the statute. In my view, the trial court and

the Court of Appeals correctly concluded that defendant pos-

sessed a weapon in violation of one of the general conditions

of probation specified in ORS 137.540(1)(j). Accordingly, I

respectfully dissent.

Under ORS 137.540(1)(j), a probationer shall not

“possess weapons, firearms or dangerous animals.” The

statute does not define “weapons,” and, as the majority opin-

ion points out, a knife can be used as a tool—a utensil that

494 State v. Cortes

is used to eat or cut food—and as a weapon. I would dis-

tinguish between the two, not by focusing on whether the

implement was designed for combat or reasonably recog-

nized as having the same character, as the majority opinion

concludes, but by examining the circumstances surround-

ing a probationer’s possession. Focusing on a probationer’s

possession of the implement in question follows from the

text of ORS 137.540(1)(j). Additionally, the circumstances

of that possession can support an inference that the proba-

tioner possessed the implement with the intent to use it as a

weapon, rather than as a tool.

The majority opinion acknowledges that a proba-

tioner using a knife to stab someone, to attempt to stab

someone, or to coerce, threaten, or menace someone would

be using the knife as a weapon, regardless of whether the

knife had been specifically designed for combat. __ Or at __

(slip op at 38:3-13). If defendant had used the knife at issue

in this case to stab or threaten to stab someone, then a court

could properly conclude that it was a weapon. The fact that

“weapon” has a use-based meaning, as the majority opinion

acknowledges, helps us construe what it means to “possess

weapons” as that term is used in ORS 137.540(1)(j) in a way

that is similarly use-based. Although that may not be how

the word “possess” is ordinarily understood, the context of

this statute supports applying the term “possess weapons”

based on facts showing how the knife was used or intended

to be used. Thus, if the circumstances surrounding defen-

dant’s possession of the knife showed that he possessed it

with the intent to use it to stab or threaten to stab someone,

then a court could conclude that he was possessing it as a

weapon. The circumstances here supported the trial court’s

finding that defendant possessed the knife in question as a

weapon.

Defendant possessed the knife in his backpack,

with the handle sticking out, making it readily accessible

to him by reaching back—without removing his backpack—

and grabbing it. That suggests that he possessed the knife

to use it as a weapon. The handle of the knife was wrapped

in tape, making it easier for defendant to grab it quickly and

hold it tightly, in a threatening way, if he thought he needed

Cite as 374 Or 461 (2025) 495

a weapon. Defendant’s manner of possessing the knife sug-

gests that he possessed it as a weapon because he intended

to use it, if necessary, as a weapon. That also is how defen-

dant’s probation officer saw it. After seeing the knife handle

sticking out of defendant’s backpack, the probation officer

thought that defendant was in possession of a “weapon”

in violation of the general condition of probation in ORS

137.540(1)(j). Based on the probation officer’s testimony, the

trial court determined as a factual matter that defendant

had possessed a weapon in violation of that general condi-

tion of probation. Because there are sufficient facts in the

record to support that determination, I would affirm.

That does not mean that any possession of this

knife would necessarily be a violation of the general condi-

tion of probation in ORS 137.540(1)(j). For example, if defen-

dant had possessed this knife in the bottom of his backpack,

wrapped in a napkin with a fork and spoon alongside a cup

and a plate, I would conclude as a factual matter that he

possessed it as an eating utensil, not as a weapon. Similarly,

a probationer who possessed a hammer in a toolbox along-

side a wrench and a screwdriver on the way to his job at a

construction site possessed the hammer as a tool, not as a

weapon. A probationer who possessed a baseball bat in a

duffel bag alongside a mitt, a baseball, cleats, and a baseball

uniform on the way to a baseball field possessed the bat to

play baseball, not to use it as a weapon. Under those circum-

stances, probation officers and courts should conclude that

the probationer had not possessed a weapon in violation of

the general condition of probation in ORS 137.540(1)(j).

But hammers and baseball bats, though not specifi-

cally designed for combat, can be used as weapons. The same

is true of a knife that is not specifically designed for combat.

The circumstances in which a probationer possessed such

an implement can reveal that a probationer possessed it as a

weapon. For example, a probationer holding a baseball bat or

a hammer in his hand in a threatening manner as he walked

towards a street brawl would be possessing the implement

as a weapon. In my view, such a possession would violate the

general condition of probation in ORS 137.540(1)(j), even if

496 State v. Cortes

the probationer stopped short of using the implement to blud-

geon someone.

That common-sense approach is consistent with the

legislative history. As the majority opinion recounts, legis-

lators were pointedly advised, once in the 1981 session and

again in the 1993 session, that the word “weapon,” unmodi-

fied by words such as “deadly” or “dangerous,” could be con-

strued broadly and might present “line-drawing problems.”

__ Or at __ (slip op at 29:1 - 30:5, 30:6 - 32:2). On neither

occasion did the legislature respond by changing the term.

Thus, the legislature knew that “weapon” could be overin-

clusive and still seems to have preferred it to the alterna-

tives. In resisting that conclusion, the majority reverts to

the evidence that, as a general matter, the changes to the

probation system were intended in part to make the system

more predictable. __ Or at __ (slip op at 32:9 - 33:1). But the

legislature certainly could have had that general purpose

and yet chosen, in the specific context of weapons posses-

sion, to err on the side of overinclusiveness, trusting prose-

cutorial discretion and the sound judgment of trial courts to

avoid revocations based on the benign possession of tools.

In a different context, we rejected a design-based

approach in favor of a use-based approach to describe the

nature of a weapon. In State v. Delgado, 298 Or 395, 692 P2d

610 (1984), we were asked to decide whether a switchblade

knife was an “arm” within the meaning of Article I, section

27, of the Oregon Constitution.12 The state contended that,

because a switchblade was designed and most commonly

used for offensive purposes and was not commonly used for

personal defense, it was not an “arm” within the meaning of

the Oregon Constitution. We were “unpersuaded” by the dis-

tinction urged by the state between offensive and defensive

weapons. As we explained,

“[a]ll hand-held weapons necessarily share both character-

istics. A kitchen knife can as easily be raised in attack as

in defense. The spring mechanism does not, instantly and

irrevocably, convert the jackknife into an ‘offensive’ weapon.

Similarly, the clasp feature of the common jackknife does

12

Article I, section 27, of the Oregon Constitution provides, “The people shall

have the right to bear arms for the defence [sic] of themselves, and the State, but

the Military shall be kept in strict subordination to the civil power.”

Cite as 374 Or 461 (2025) 497

not mean that it is incapable of aggressive and violent pur-

poses. It is not the design of the knife but the use to which it

is put that determines its ‘offensive’ or ‘defensive’ character.”

298 Or at 399-400 (emphasis added).

Similarly, it is not the design of the knife in this

case but whether the defendant possessed it to use it as a

weapon that should determine whether the defendant vio-

lated the general condition of probation in ORS 137.540(1)(j).

The circumstances of defendant’s possession of the knife in

question in this case, in my view, supported the trial court’s

finding that he possessed it to use it as a weapon, in viola-

tion of the general condition of probation in ORS 137.540(1)(j).

The Court of Appeals agreed. I would affirm those decisions.

Accordingly, I respectfully dissent.

Garrett, J., joins in this dissenting opinion.