State v. O'Hare

309 Or.App. 357

481 P.3d 953

STATE of Oregon, Plaintiff-Respondent,

v.Dana Lynn O'HARE, Defendant-Appellant.

A165472

Court of Appeals of Oregon.

Argued and submitted May 8, 2019.

February 18, 2021

Erin J. Snyder Severe, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Kirsten M. Naito, Assistant Attorney General, argued the cause for respondent. On the briefs was Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Susan G. Howe, Assistant Attorney General.

Before Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.

LAGESEN, P. J.

Defendant was tried by jury for, among other offenses, unlawful delivery of methamphetamine, ORS 475.890. On that charge, the only evidence was that defendant possessed an individual-user amount of methamphetamine, a pipe with residue, a scale, matches, and some baggies. At the close of the state's case, she moved for a judgment of acquittal on that count, contending that the evidence was insufficient to support a conviction for delivery. The trial court denied the motion, and the jury returned a verdict of guilty on all counts. On appeal, defendant assigns error to the court's denial of her motion and renews her contention that the evidence was insufficient to support a conviction for delivery.¹ Although the jury's verdict on each count was unanimous, she also contends, in a supplemental brief, that she is entitled to reversal of all convictions because the jury was instructed that it could return nonunanimous verdicts. We agree with defendant that the evidence is insufficient to support her conviction for delivery and reverse her conviction on that count, but we otherwise affirm.

Defendant was detained for involvement in the theft of two sets of earbuds and a media player from a Bi-Mart. Before detaining her, the Bi-Mart's loss prevention manager, Spencer, had observed defendant hand off the electronics to an accomplice who fled the scene on a bicycle. In Spencer's office, defendant denied having stolen anything and opened her backpack to prove it, revealing a small red pouch. Spencer called the police because of defendant's role in the theft, Officer Barber came, and defendant was arrested and taken to jail.

After defendant had been taken away, Spencer noticed that her red pouch had been left in his office, so he called Barber. Barber returned and looked inside the pouch.² It contained drugs and drug paraphernalia: a methamphetamine pipe with heavy residue on its inside rim; a small Ziploc baggie, covered with soot and containing .79 grams of methamphetamine; one larger sandwich bag; several other small, clean Ziploc baggies; a small digital scale with white residue on it; and some matches. Defendant was indicted for unlawful delivery of methamphetamine, ORS 475.890, unlawful possession of methamphetamine, ORS 475.894 (2017),³ and third-degree theft, ORS 164.043.

At defendant's jury trial, Barber testified that the amount of methamphetamine found in defendant's pouch was a "user amount," meaning that it was consistent with what an individual might use in a day. Barber explained that a user amount "[d]epends on the individual user. Some people maybe use a tenth of a gram a day. Some people use a gram a day. It just depends on the user." He elaborated that a "street level user amount" might be around half a gram or so, but that half a gram "would be on the steep side." He also testified that it is typically dealers, not people who are merely users, who carry digital scales with them. Dealers, Barber explained, would usually "buy a larger amount and then they'll split that amount up in small baggies and sell the individual portions." He added that sometimes those who only use (rather than sell) methamphetamine would come equipped with their own digital scales to purchase drugs, but that that was less common. Barber opined, based on his training and experience, that the contents of defendant's red pouch were consistent with someone who sells methamphetamine.

At the close of the state's case, defendant moved for judgment of acquittal on the delivery charge. The trial court denied the motion. It reasoned that the jury could conclude, based on defendant's possession of the methamphetamine and the materials commonly used to sell drugs, that defendant "sells relatively small amounts to other individual drug users." The jury returned a verdict of guilty on all three counts.

Defendant appeals. She assigns error to the trial court's denial of her motion for judgment of acquittal of her delivery charge. Defendant argues that the state's evidence—a user amount of methamphetamine, a sandwich bag, a digital scale, a pipe, matches, and multiple small, clean baggies—is insufficient to support a conviction for delivery of methamphetamine. The state responds that defendant's possession of materials commonly used in connection with the transfer of controlled substances, along with a user amount that was "on the steep side," was sufficient evidence to support the jury's finding of guilt. The state points out that a large amount of a controlled substance is not required for a delivery conviction and also contends that defendant's possession of the tools of delivery alone was sufficient to support her conviction.

We review the denial of defendant's motion for judgment of acquittal "to determine whether, viewing the facts and reasonable inferences that may be drawn from those facts in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Borden , 307 Or. App. 526, 528, 476 P.3d 979 (2020) (internal quotation marks omitted). An inference is reasonable if

"there is a reasonable probability that the conclusion flows from the proven facts. The inference need not inevitably follow from the established facts; rather, if the established facts support multiple reasonable inferences, the jury may decide which inference to draw. Still, an inference of guilt must be supported by the evidence and follow logically from it; stacking inference upon inference to the point of mere speculation is impermissible. In addition, an inference may be unreasonable if it requires too great an inferential leap."

State v. Miller , 196 Or. App. 354, 358, 103 P.3d 112 (2004), rev. den. , 338 Or. 488, 113 P.3d 434 (2005) (internal citations and quotation marks omitted).

ORS 475.890 provides that it is unlawful to deliver methamphetamine. "Delivery," for purposes of that statute, means "the actual, constructive, or attempted transfer * * * of a controlled substance." ORS 475.005(8).

Here, the state's theory is that defendant committed delivery by engaging in the "attempted transfer" of methamphetamine. Relying on ORS 161.405(1), the statute setting forth the elements of the inchoate crime of attempt, we have held that a person is guilty of an "attempted" transfer—and thus a completed "delivery"—" ‘when the person intentionally engages in conduct which constitutes a substantial step toward’ " the transfer of a controlled substance. State v. Boyd , 92 Or. App. 51, 53-54, 756 P.2d 1276, rev. den. , 307 Or. 77, 763 P.2d 731 (1988) (quoting ORS 161.405(1) ).⁴ A "substantial step," for purposes of ORS 161.405, is an act that is "strongly corroborative of the actor's criminal purpose" such that it "(1) advance[s] the criminal purpose charged and (2) provide[s] some verification of the existence of that purpose." State v. Walters , 311 Or. 80, 85, 804 P.2d 1164, cert. den. , 501 U.S. 1209, 111 S.Ct. 2807, 115 L.Ed.2d 979 (1991).

The state first argues that "defendant's possession of delivery tools qualifies as a substantial step" for purposes of ORS 161.405(1) and ORS 475.005(8) such that defendant need not have possessed any amount of drugs to support her conviction for delivery. According to the state's theory both below and on appeal, mere possession of the items used to deliver methamphetamine is enough for a reasonable juror to conclude that "defendant had taken a substantial step of being ‘in the business’ of selling methamphetamine."

The state is correct that there is no per se requirement that a defendant have drugs in her immediate possession to support a conviction for delivery of a controlled substance. The state is incorrect, however, that mere possession of a scale and baggies (things that could be used to deliver drugs) is sufficient to support a finding that the defendant engaged in "the actual, constructive or attempted transfer" of methamphetamine. For one, the statute does not criminalize being "in the business" of dealing methamphetamine. It criminalizes "the" (singular) "actual, constructive or attempted transfer" of methamphetamine. The use of the singular determinative "the" indicates that the legislature intended to criminalize particular singular acts of actually, constructively, or attempting to transfer controlled substances and, more to the point, intended to require the state to prove the existence of a particular actual, constructive, or attempted transfer.

Beyond that, we have never concluded that so little evidence—the mere possession of "tools of the trade"—could support a delivery conviction under ORS 475.890, and to do so here would unlawfully punish defendant for the status of being a drug dealer rather than for the act of transferring or attempting to transfer controlled substances.⁵ The legislature has not enacted a statute criminalizing the status of being or having been a drug dealer; it has enacted statutes criminalizing the particular conduct that might be said to make a person a drug dealer.

Finally, as for the cases that the state cites in support of its contention that it need not prove that defendant possessed any quantity of drugs to support a delivery conviction, none of those cases stand for the proposition that the defendant's...