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 Washington County Circuit Court, Robert B. Johnson, Judge.

, 

 (2024).
462   State v. Cortes
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 (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 illustrates, 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 probation 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 backpack. 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 implement that defendant carried in his backpack by necessity
because, being houseless, he carried all his worldly possessions 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, 

, 

 (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 ontological 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, context, and legislative history of ORS 137.540(1)(j), and considering 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 factual 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 substantially 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 computer 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, burglary in the second degree, ORS 164.215, and criminal mischief 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 conditions of probation.” One of those conditions provided that
defendant “shall [n]ot possess weapons, firearms or dangerous 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 supervision 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,
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   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 defendant 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 defendant 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 handle of [a] knife sticking out from [his] backpack.” Defendant
complied with Vidal’s instruction to stop and drop the backpack, 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 condition, defense counsel asked Vidal to explain what constituted 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 definition 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 considered 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
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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 insufficient 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 provision that the Probation Officer read[,] this clearly constitutes 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 legislature 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 combat 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 displayed outside of his backpack—that “defendant was carrying the knife to protect himself or to fight someone.” In other
words, the state argued that the trial court could appropriately 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, 

, 

 (2024), and
defendant filed a petition for review, which we allowed.
                       II. ANALYSIS
        ORS 137.540 provides that a trial court “may sentence 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 probationer from possessing “weapons, firearms or dangerous
animals.” ORS 137.540(1)(j).
         According to defendant, he did not violate the weapons condition because a “weapon” is an instrument specifically 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.
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          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, 

, 

 (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, 

, 

 (2009).
Under that framework, we examine the text and context of
ORS 137.540(1)(j), together with the relevant legislative history, all with the “paramount goal” of determining the legislature’s intent. Gaines, 

.
     1. Textual analysis
           ORS 137.540(1)(j) provides:
        “(1) The court may sentence the defendant to probation subject to the following general conditions unless specifically 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, 

, 

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

, 

 (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 dictionary 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 “implement” suggest a broader category of objects used to carry out
a task. Implement “applies to anything, usu[ally] a contrivance, 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,
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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 injuring 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 context 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 “electroshock weapon” as “[a] handheld device designed to incapacitate 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 meaning 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 narrow 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, 

, 

 (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, 

, 

 (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, 

, 

 (2014) (citing Polacek
and Polacek, 

, 

 (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 probation. Swarens v. Dept. of Rev., 

, 

 (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 conditions 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 defendants 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 determine 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 probation 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 faithfully 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.”
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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 possession of weapons. Id. Once a court had identified the supervision 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 conditions 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 probation supervision. State v. Martin, 

, 588 n 3, 

 (1978). With the rise of probation supervision came
increased litigation over the conditions of probation. In considering 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.

.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,

, 

 (1967); Barker v. Ireland, 

, 

 (1964).
         In 1981, the legislature restructured the probation
statutes, introducing the concept of general and special conditions 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 imposing 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 punishment 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). 

.
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 probationers—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 weapons condition set out in ORS 137.540(1)(j) as part of a
broader attempt to restructure the probation-related statutory 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, intermediate 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 supervision. In other words, although the legislature expanded the
authority of probation officers by allowing them to impose
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sanctions, nothing in the legislative record suggests that the
legislature intended to grant probation officers discretion to
independently impose the conditions of probation, nor interpret imposed conditions in a manner as to expand those conditions 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 probationers to know, with certainty, when conduct will result in
sanctions). The legislature ultimately enshrined those policy 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 consideration the availability of both prison space and local
   resources.”
          The development of the probation statutes since
1931 provides several important contextual clues for interpreting the weapons provision in ORS 137.540(1). First,
the purpose of the probation system is to promote a probationer’s freedom and need for rehabilitation so long as those
interests are consistent with public safety. Martin, 

; see also State v. Donovan, 

, 

(1989). Second, it is Oregon’s policy to ensure that the probation system operates in a swift, certain, and consistent
manner. To achieve that policy, the legislature has developed 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 anything capable of being used to inflict injury. Such a definition 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 arbitrary 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., 

, 

(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 forbidding people on probation from possessing weapons, ORS
137.540(1)(j) also prohibits those individuals from possessing 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 context does not support a broad definition of “weapons” that
Cite as 

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“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 transfer 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., 

, 

 (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, 

, 

 (1987) (assessing tort
liability for ordinance prohibiting the possession of exotic,

    6
      Although the legislature did not enact any law concerning “dangerous” animals until 2005, Or Laws 2005, ch 840, § 2(2) (setting out “the crime of maintaining a dangerous dog”), some municipalities had enacted ordinances regulating
the possession of dangerous animals. See Lange By & Through Lange v. Minton,

, 

 (1987) (discussing Salem ordinance that prohibited the possession of “[a]n exotic, wild, or dangerous animal”).
478                                            State v. Cortes

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

, 

 (1978) (discussing potential tort
liability for dangerous animals). In those cases, this court
considered whether a person’s possession of a particular animal 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, 

(citing to Restatement); Chance v. Ringling Bros. Barnum
& Bailey, Combined Shows, Inc., 

, 

(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) (defining 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 dangerous”); 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 dangerous 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 normal 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 threatened to harm another. See Black’s at 1593 (defining “dangerous animal” as “[a]n animal that has harmed or has threatened to harm a person or another animal”). But the concept
of “dangerous animals” weaves aspects of nature or design,
Cite as 

 (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, 

, 

 (1997) (explaining that, when construing a
statute, “we do not look at one subsection of a statute in a vacuum; 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 statute, 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, 

, 

 (2015); see also SAIF v. Ward, 

, 

 (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,

, 

 (2008), the word “possess”
encompasses two alternatives: (1) physically controlling the
480                                                           State v. Cortes

property—what we call “actual” possession—and (2) exercising dominion or control over the property—what we call
“constructive” possession. See also State v. Barger, 

, 

 (2011), adh’d to as modified on recons,

, 

 (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 constructive 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, 

, 

 (1994); see also State v. Perry, 

, 

 (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, pornography, and the like. We therefore understand the word “possess” in ORS 137.540, which is concerned with criminal probation, as it is commonly understood in other legal contexts,
despite the statute itself not defining the term. See McIntire
v. Forbes, 

, 

 (1996) (“Analysis of
text also includes reference to wellestablished legal meanings 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 

 (2025)                                                       481

Dumond, 

, 

 (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, 

, 

 (2003);
Ryerse v. Haddock, 

, 

 (2004)
(noting same). Accordingly, in considering the use of the
phrase “not possess weapons, firearms or dangerous animals” 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 “possess,” 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 legislature 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-determinative 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 probation 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 “possess 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, 

, 

 (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 provide consent can itself result in a probation violation. State
v. Reed, 

, 

 (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, 

, 

 (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,

, 

 (1989). In 1993, that statute
provided:
       “[A]ny person who carries concealed upon the person 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 

 (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 instrument 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, 

. 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, 

, 

 (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 companion to and substitute for the sword”). Thus, when the legislature listed the bladed instruments that it considered to
be weapons under ORS 166.240, it listed only those instruments 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 various words and phrases for purposes of the statutory prohibition 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, slingshot, 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 prohibiting 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, 

, 

 (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, 

. We rejected the
state’s “distinction [between] … ‘offensive’ and ‘defensive’
weapons,” reasoning that “[a]ll hand-held weapons necessarily share both characteristics.” 

. We discussed the long and complicated history of knives “as both
instruments of labor and combat” in the context of Article I,
section 27. 

. 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 particular, since the early 18th century has been commonly carried
by men in America and used primarily for work, but also for
fighting.” 

.
         Contrary to the state’s assertion, Delgado supports
the proposition that objects in general, and knives in particular, possess a primary design, such that they can be
designed primarily as tools, and others can be designed primarily 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 

 (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 contemplation 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 legislative history. In 1981, the initial drafts of HB 2317—the
bill that created general and special conditions of probation—prohibited a probationer from possessing “any firearm
or any other specified weapon” as a general condition of probation. Stephen Griffith, legislative counsel, was concerned
that the term “weapon” would lead to “line drawing problems” 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, representing 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 definition because it would include instruments, such as switchblades, 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 dangerous weapon you had in mind.” Id.
         In 1993, the legislature made the weapons prohibition 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 (prohibiting 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 “dangerous 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, representing 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 

 (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 probation 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 conditions. Given the purpose of the legislation, as one might
expect, there is no instance in the legislative record of anyone—elected official or advocate—supporting the potentiality 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 “weapons” 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 definition 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 resolving the remaining uncertainty.’ ” 

. We conclude that is appropriate in this case.
         “It is a maxim of statutory construction that, when
a statute is capable of more than one plausible interpretation, the court will avoid an interpretation that raises a constitutional problem.” Bonner v. Am. Golf Corp. of California,
Inc., 

, 844, 

 (2024); see also State v.
Stoneman, 

, 540 n 5, 

 (1996) (“[A] court
will give a statute such an interpretation as will avoid constitutional invalidity.”); Salem College & Academy, Inc. v. Emp.
Div., 

, 

 (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, 

, 

 (1985) (citing State v. Hodges, 

, 

 (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 

 (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, 

, 

 (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,

, 

, 

 (1972)).11 The
United States Supreme Court has emphasized that the conditions of supervision be sufficiently clear to provide notice
of what behavior is prohibited. See Griffin v. Wisconsin, 

, 875 n 3, 

, 

 (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 interpretation 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,

 (9th Cir 2018), the court stated, “A probationer must be put on clear notice of what conduct will (and will
not) constitute a supervised release violation.” See also United
States v. Simmons, 

 (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 accountability, 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 prohibited 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 process 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, 

 (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, 

(2006) (“ ‘It is an essential component of due process that individuals 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 probation. … [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 prevent officers from impermissibly exercising their own discretion in interpreting the meaning of those conditions. See, e.g.,
Evans, 

 (“[A] vague supervised release condition ‘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, 

, 867 n 10 (9th
Cir 2007).); see also State v. Wallmuller, 194 Wash 2d 234,
240, 

 (2019) (explaining that a condition barring 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—particularly when considered within the context of constructive
Cite as 

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possession—invites potential state and federal constitutional problems, independently under Article I, section 34, of
the Oregon Constitution, and the state constitutional principles articulated in Graves, 

, 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 particular 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 possession makes it nearly impossible for probationers to predict what future behavior would, or would not, be prohibited. 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 dangerous 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 slingshot; 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 projector of a bomb or any object containing or capable of producing 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 constitute a probation violation. Using an object as a weapon
to coerce, threaten, or menace someone else may constitute 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 commission 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 conditions 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 “reasonably 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 imposition of special conditions in that circumstance); Donovan,

 (“A condition of probation that ‘does not promote public safety or rehabilitation is not permitted under
the statute.’ ” (Quoting Martin, 

.)).
                    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
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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 backpack 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 possessed 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 opinion 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 distinguish between the two, not by focusing on whether the
implement was designed for combat or reasonably recognized as having the same character, as the majority opinion
concludes, but by examining the circumstances surrounding 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 probationer possessed the implement with the intent to use it as a
weapon, rather than as a tool.
         The majority opinion acknowledges that a probationer 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 defendant’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
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a weapon. Defendant’s manner of possessing the knife suggests that he possessed it as a weapon because he intended
to use it, if necessary, as a weapon. That also is how defendant’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 condition 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 condition of probation in ORS 137.540(1)(j). For example, if defendant 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 alongside 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 circumstances, 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 specifically 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 bludgeon someone.
         That common-sense approach is consistent with the
legislative history. As the majority opinion recounts, legislators were pointedly advised, once in the 1981 session and
again in the 1993 session, that the word “weapon,” unmodified by words such as “deadly” or “dangerous,” could be construed 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 overinclusive and still seems to have preferred it to the alternatives. 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 possession, to err on the side of overinclusiveness, trusting prosecutorial 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, 

, 

 (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 distinction urged by the state between offensive and defensive
weapons. As we explained,
    “[a]ll hand-held weapons necessarily share both characteristics. 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.”
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   not mean that it is incapable of aggressive and violent purposes. 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 violated 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 violation 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.