GRABER, J., concurring in part; dissenting in part.
I agree with the majority that petitioner's claim of insufficient evidence to sustain a finding that he attempted to possess unauthorized vitamins has no merit. Therefore, I concur in that much of the opinion. However, I disagree with the affirmance of the order imposing disciplinary sanctions for attempting to possess marijuana.
Petitioner's assignment of error is that the evidence was insufficient to sustain a finding that he violated the applicable rule. His brief sets forth all the relative evidence verbatim, and the state agrees with him about what the record shows. The provisions of the applicable rules also are, of course, undisputed. The state's argument that the evidence is sufficient rests entirely on the fact that petitioner's friend admitted to authorities that he had asked her to bring marijuana to him. There is no additional evidence in the record that would support a finding that the rule was violated. For example, the friend was not in possession of marijuana when questioned, and she had refused petitioner's requests. In my view, the evidence is not sufficient to prove an attempt to possess marijuana in violation of Rule 7.
OAR 291-105-015 provides, in pertinent part:
"(7) Possession, Manufacture, or Use of Dangerous Contraband: Except as may be authorized by other rules, no inmate shall knowingly possess, manufacture or use:
"* * * * *
"(c) Narcotics or narcotics paraphernalia;
"* * * * *
"(14) Attempt: No inmate shall knowingly engage in conduct which constitutes a substantial step toward the intentional commission of a rule(s) violation. Attempt is an included charge in sections (3) through (12) of this rule."
Petitioner's conduct was "knowing." See ORS 161.085 (8). Had he succeeded, his possession of marijuana would have been the "intentional commission of a [Rule 7] violation." See ORS 161.085 (7). I would hold, however, that the request to a visitor to bring contraband into the institution, without more, does not constitute "a substantial step toward" the violation.
The definition of "attempt" in Rule 14 parallels the statutory definition, ORS 161.405 (1), and its common law antecedents. See State v. Moore, 194 Or. 232, 242, 241 P.2d 455 (1955). Similarly, Rule 13, which defines "conspiracy," tracks ORS 161.450 (1). The statutes concerning inchoate crimes contain a third offense:
"A person commits the crime of solicitation if with the intent of causing another to engage in specific conduct constituting a crime * * * or an attempt to commit such [crime] * * * the person commands or solicits such other person to engage in that conduct." ORS 161.435 (1).
Significantly, a prohibition against "solicitation" was not enacted as part of OAR 291-105-015. We should give effect to the agency's omission of "solicitation." See ORS 174.010; Royal Aloha Partners v. Real Estate Div., 59 Or. App. 564, 568, 651 P.2d 1350 (1982).
At common law, too, attempt and solicitation were distinct crimes. See, e.g., 4 Wharton's Criminal Law, § 714 (14th ed 1978); Clark and Marshall, Crimes, § 4.05, 200-01 (6th ed 1958); State v. Miller, 252 A.2d 321, 324 (Maine 1969); Gervin v. State, 371 S.W.2d 449 (Tenn 1963). Therefore, whether the rules are borrowed from the statutes, the common law, or both, the analysis is the same.
Petitioner's conduct constituted "solicitation" in its classic form. With the intent to violate Rule 7, he commanded or requested that his friend bring him marijuana. Although inability to complete the offense does not defeat a finding of attempt, see State v. Wilson, 218 Or. 575, 585, 346 P.2d 115 (1959), the step toward commission of the offense must be "substantial." OAR 291-105-015 (14). Mere solicitation does not meet that test. See n 1, supra, and State v. Evans, 43 Or. App. 95, 602 P.2d 317 (1979); State v. Christenson, 5 Or. App. 335, 338, 483 P.2d 84, 484 P.2d 853 (1971). A prisoner's entreaty to a visitor, unaccompanied by any agreement or further action, is not a "substantial step toward" possession of marijuana and, therefore, is not punishable as an "attempt" under the rule.
The majority relies on a hypertechnical method of decision. This is not a case in which a party seeks to rely on a different theory from that which was presented to a lower tribunal. Rather, it is a case in which everyone agrees that the issue raised is sufficiency of the evidence and, indeed, agrees what the evidence is. The only question is whether, in reviewing the sufficiency of the evidence, we are limited to considering only the exact rationale advanced by petitioner. Where the correct issue was raised and the evidence is plainly deficient on its face, it is inappropriate to wear the blinders that the majority has donned.
Petitioner's acts were not an attempt within the meaning of the applicable rule. He adequately submitted that issue for our review. The question of whether his acts were a "substantial step toward" possession of marijuana is necessarily included in his contention that the evidence was deficient, because the rule itself defines "attempt" in terms of a "substantial step." Even if petitioner's argument were not preserved or fully presented, it is an error of law apparent on the face of the record. ORAP 7.19(5). "[T]he error is manifest and * * * the ends of justice will not otherwise be satisfied." State v. Hickmann, 273 Or. 358, 360, 540 P.2d 1406 (1975). Therefore, I dissent.