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March 18, 2026 Get Citation Alerts Download PDF Add Note

State v. Demby

Court of Appeals of Oregon

• Citations: 347 Or. App. 780
• Docket Number: A183840
• Judges: Kamins

• Disposition: Affirmed.

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (10K)

• PDF

Disposition

Affirmed.

Combined Opinion

780 March 18, 2026 No. 201

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

STATE OF OREGON,
Plaintiff-Respondent,
v.
JASON ISAAC DEMBY,
aka Jason Isaihia Demby,
Defendant-Appellant.
Multnomah County Circuit Court
23CR24763; A183840

Christopher J. Marshall, Judge.
Submitted February 5, 2026.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kelsey T. Townsend, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Interim Deputy Attorney General, and Emily N. Snook,
Assistant Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
KAMINS, J.
Affirmed.
Cite as 347 Or App 780 (2026) 781

KAMINS, J.
In this criminal case, defendant appeals his judg-
ment of conviction for second-degree unlawful use of mace,
assigning error to the trial court’s denial of his motion for
judgment of acquittal (MJOA). Defendant argues that the
state provided insufficient evidence that the substance he
sprayed constituted mace as defined in ORS 163.211(2),
because the state relied on eyewitness testimony rather
than evidence of the chemical makeup of the substance. We
affirm.
When reviewing the denial of an MJOA, we view
the evidence “in the light most favorable to the state to
determine if the state presented sufficient evidence from
which a rational trier of fact, making reasonable inferences,
could find the essential elements of the crime beyond a rea-
sonable doubt.” State v. Hedgpeth, 365 Or 724, 730, 452 P3d
948 (2019) (citations and internal quotation marks omitted).
We recite the facts in accordance with that legal standard.
At a Goodwill store in Portland, defendant sprayed
D, a security guard, and J, the assistant manager, with
a substance that caused immediate physical discomfort,
including impaired vision, coughing, and difficulty breath-
ing. For that conduct, the state charged defendant with
second-degree unlawful use of mace, ORS 163.211.1 At
defendant’s bench trial, the state presented eyewitness tes-
timony from D and J describing their experiences of being
sprayed in the store, as well as testimony from the police
officer who responded to the scene.
D described feeling “a burning sensation,” stating
the spray went “everywhere” and made it difficult to see or
breathe. J similarly described feeling “an extreme burning
situation” and an inability to see. While J and D were the
only people in the store who were sprayed directly, J reported
that other people in the store were “coughing and having
symptoms.” Both J and D had to receive assistance to move
away from the area, because they were unable to do so inde-
pendently. D believed the substance was mace and thought

1
Defendant was also charged with one count of third-degree escape, ORS
162.145, of which a jury found him guilty. Defendant does not contest that charge.
782 State v. Demby

that the spray was orange in color. Both witnesses described
the canister as being a few inches tall with a handle.
Upon arrival at the Goodwill store, Officer Budey
observed that D was “drenched” in the substance and that
J’s face was red. He testified that “you could smell” the sub-
stance in the room and “kind of taste it in your mouth,”
describing the smell and taste as similar to “hot pepper,”
and said that “you involuntarily start coughing” just from
being there. Budey took a still photograph from the store’s
surveillance video but did not collect any physical evidence,
including the clothing that had been sprayed, nor did he
submit any evidence of chemical testing. In fact, the state
did not present any evidence at all as to the substance’s
chemical composition.
Defendant moved for judgment of acquittal, argu-
ing that the testimonial evidence alone was insufficient to
support his convictions because the state had not produced
any evidence of the chemical composition of the substance
he discharged. He contended that the legislature’s choice
to define mace by reference to specific chemical ingredi-
ents and properties indicated an intent to require proof of
the substance’s chemical makeup to establish the crime of
second-degree unlawful use of mace.
The trial court disagreed, reasoning that while
the state’s evidence would have been stronger if it had
retrieved the cannister or performed a chemical analysis
on the impacted clothing, “they’re not required to do that.”
The trial court denied defendant’s motion and found him
guilty of second-degree unlawful use of mace. This appeal
followed.
The question presented in this case is whether ORS
163.211(2) requires evidence of the chemical composition
of mace for a conviction of second-degree unlawful use of
mace. To determine the meaning of a statute, we look to the
legislature’s intent, as evidenced by the text and context of
the statute and any legislative history that is useful to the
analysis. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042
(2009).
Cite as 347 Or App 780 (2026) 783

Text. The plain text of ORS 163.211(2) does not
require the state to present evidence of the chemical compo-
sition of a substance to prove it is mace.
ORS 163.211(2) defines mace as:
“* * * a sternutator, lacrimator or any substance composed of
a mixture of a sternutator or lacrimator including, but not
limited to, chloroacetophenone, alpha-chloroacetophenone,
phenylchloromethylketone, orthochlorobenzalmalononi-
trile, oleoresin capsicum or a chemically similar sternuta-
tor or lacrimator by whatever name known, or phosgene
or other gas or substance capable of generating offensive,
noxious or suffocating fumes, gases or vapor or capable of
immobilizing a person.”
The statutory subsection begins with listing a ster-
nutator or a lacrimator as possible types of mace.2 Next,
the phrase “including, but not limited to” before the list of
chemical substances conveys “an intent that an accompany-
ing list of examples be read in a nonexclusive sense.” State v.
Kurtz, 350 Or 65, 75, 249 P3d 1271 (2011). That means that
although the listed substances may establish the existence
of mace, they are not the only substances that do. After list-
ing the specific examples, the statute provides that mace
also includes any “substance capable of generating offensive,
noxious or suffocating fumes, gases or vapor or capable of
immobilizing a person.”
Thus, the statute’s plain text lacks any requirement
of scientific proof of the substance’s chemical makeup. Rather,
the text provides that mace includes a sternutator, lacrima-
tor, or some combination of both, and could include the listed
chemical substances as well as any other substance capable
of generating offensive, noxious or suffocating gases.
Context. The context of ORS 163.211(2) further sup-
ports the interpretation that the state is not required to
prove by chemical testing that a substance is mace. Context
includes, as relevant to this case, statutes on the same or a
related subject. State v. Klein, 352 Or 302, 309, 283 P3d 350
(2012) (a statute’s context includes “related statutes”).
2
See Webster’s Third Int’l Dictionary 2239 (unabridged ed 2002) (defining
“sternutator” as “an agent that induces a flow of nasal secretion or causes sneez-
ing”); id. at 1262 (defining “lacrimator” as “a tear-producing substance”).
784 State v. Demby

Other related statutes demonstrate that when the
legislature intends chemical analysis to be required, it says
so explicitly. Oregon’s DUII statute provides that a person
commits the offense of driving while under the influence of
intoxicants if the person drives a vehicle while having “0.08
percent or more by weight of alcohol in the blood of the per-
son as shown by chemical analysis of the breath or blood of
the person.” ORS 813.010(1)(a) (emphasis added). In the DUII
context, proof by anything other than a chemical analysis
of breath or blood cannot be offered to prove a defendant’s
blood alcohol content (BAC). State v. O’Key, 321 Or 285, 307-
08, 899 P2d 663 (1995) (holding that the results of a hori-
zontal gaze nystagmus (HGN) test could not be offered as
proof of BAC because it did not involve a chemical analysis);
State v. Ross, 147 Or App 634, 639, 938 P2d 797 (1997) (“If
evidence other than that derived from chemical tests were
admissible under ORS 813.010(1)(a), then the state could
prove its charge with that evidence, thereby negating the
legislature’s intention that the standard of culpability for
that statute be a quantified blood alcohol content unrelated
to perceptible impairment”).
Here, there is no such language in ORS 163.211(2)
indicating the legislature’s intent to require proof of the
chemical composition of mace. See Oregon Business Planning
Council v. LDLC, 290 Or 741, 749, 626 P2d 350 (1981) (hold-
ing that because one statute expressly authorized affected
cities to request a hearing to contest enforcement orders,
the legislature’s omission of similar hearing language else-
where reflected a deliberate choice).
Legislative History. The legislative history does not
speak to this question. ORS 163.211 was enacted in 1995
as part of the creation of new offenses for the use of elec-
tric stun guns and mace. Or Laws 1995, ch 651, § 1. The
legislative discussion focused primarily on the charge of
assaulting a public safety officer and which positions should
be included within that definition. See, e.g., Tape Recording,
House Committee on Judiciary, Subcommittee on Crime
and Corrections, HB 2234, Feb 8, 1995, Tape 190, Side A
(statement of Rep Floyd Prozanski). The legislature did not
focus on the definition of mace during this discussion.
Cite as 347 Or App 780 (2026) 785

Considered together, the text, context, and legisla-
tive history of ORS 163.211(2) reflect the legislature’s intent
to allow proof of mace through evidence of the substance’s
effects, not only through its chemical composition.
Application. Given that evidence of the chemical
composition of the substance was not required, a rational
trier of fact, making reasonable inferences, could rely on
the eyewitness testimony to find the essential elements of
second-degree unlawful use of mace beyond a reasonable
doubt. In proving the identity of a substance, the state may
properly rely on “circumstantial evidence and reasonable
inferences flowing from that evidence.” State v. F. R.-S., 294
Or App 656, 660, 432 P3d 1149 (2018) (citing State v. Bivins,
191 Or App 460, 466, 83 P3d 379 (2004)). At trial, the wit-
nesses testified that the spray caused a “burning sensation”
in their eyes and chest and created fumes throughout the
store that caused others to cough. Additionally, both vic-
tims had to receive assistance to move away from the area,
because they were unable to do so independently. That tes-
timony provided sufficient circumstantial evidence to prove
that defendant discharged mace within the meaning of ORS
163.211(2). Thus, a rational trier of fact could find the essen-
tial elements of second-degree unlawful use of mace beyond
a reasonable doubt from the eyewitness testimony alone,
and the trial court did not err in denying defendant’s MJOA.
Affirmed.