State v. Scott

283 Or.App. 566

388 P.3d 1148

STATE of Oregon, Plaintiff-Respondent,

v.Lindsey Marie SCOTT, Defendant-Appellant.

A156426

Court of Appeals of Oregon.

Submitted November 24, 2015.

February 1, 2017

Peter Gartlan, Chief Defender, and Ernest G. Lannet, Chief Deputy Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Tookey, Judge, and Garrett, Judge.

GARRETT, J.

Defendant appeals a judgment of conviction for two counts of unlawful delivery of methamphetamine, ORS 475.890, and one count of unlawful possession of methamphetamine, ORS 475.894. In her first assignment of error, defendant challenges the trial court's failure to merge her guilty verdicts for delivery (Count 1) and possession (Count 2) into a single conviction for delivery under ORS 161.067(1). Defendant also assigns error to the trial court's imposition of a general condition of probation requiring defendant to permit a probation officer to conduct home visits pursuant to ORS 137.540(1)(h),¹ contending that the condition is unlawful under both the state and federal constitutions. For the reasons explained below, we conclude that the trial court did not err in either respect and, accordingly, we affirm.

The facts pertinent to this appeal are few and undisputed. Police executed a search warrant on defendant's residence, finding 13.2 grams of methamphetamine, packaging materials, a scale, $ 383 in cash and records of drug transactions. Based on that evidence, defendant was charged by indictment with, among other things, one count of delivery of methamphetamine (Count 1) and one count of possession of methamphetamine (Count 2). Both counts alleged additional facts—commonly referred to as "subcategory factors"—to elevate the crime seriousness of the charged offenses pursuant to ORS 475.900. See State v. Baker , 265 Or.App. 500, 503, 336 P.3d 547 (2014) ("The state may allege subcategory factors to elevate the charged offense on the crime-seriousness scale for purposes of the felony sentencing guidelines." (Internal quotation marks omitted.)); see also ORS 132.557 (requiring the state to plead "any subcategory fact on which the state intends to rely to enhance the crime for sentencing purposes"). The indictment alleged that each offense was a "commercial drug offense," ORS 475.900(1)(b), and involved "substantial quantities" of a controlled substance, ORS 475.900(1)(a). Specifically, and as pertinent to this appeal, the indictment states:

"The state further alleges that the above described offense involved substantial quantities of a controlled substance, consisting of 10 grams of a mixture or substance containing a detectable amount of methamphetamine, methamphetamine salts, isomers, or salts of isomers.

"The state further alleges that the above-described offense was a commercial drug offense in that it was accompanied by at least three of the following factors:

" * * * * *

"4. Defendant was in possession of more than 8 grams of a mixture or substance containing a detectable amount of methamphetamine."

Defendant agreed to a stipulated-facts trial, at the conclusion of which the court found defendant guilty on both counts.² Additionally, the court found that each count constituted both a commercial drug offense and involved substantial quantities of methamphetamine. The effect of that finding was to elevate the crime-seriousness rating of both offenses to an eight under the sentencing guidelines.

At sentencing, the trial court entered separate convictions on Counts 1 and 2, rejecting defendant's argument that the guilty verdicts on those counts should merge into a single conviction for delivery. The trial court sentenced defendant to five years' probation subject to all of the general conditions of probation found in ORS 137.540(1), including that defendant "[p]ermit the parole and probation officer to visit the 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." ORS 137.540(1)(h). Defendant timely appealed, assigning error to the imposition of that probation condition as well as the trial court's failure to merge the guilty verdicts on Counts 1 and 2.

We begin with defendant's merger argument. Merger is governed by ORS 161.067, which provides, in part:

"(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations."

Under our case law, that provision requires merger when "a defendant's acts constitute the same conduct or criminal episode, violate two or more statutory provisions, and all the elements of one offense are necessarily included in the commission of the other offense." State v. Flores , 259 Or.App. 141, 144, 313 P.3d 378 (2013), rev. den. , 354 Or. 735, 320 P.3d 567 (2014) ; see also State v. Blake , 348 Or. 95, 99, 228 P.3d 560 (2010) ("[I]f one offense contains X elements, and another offense contains X+1 elements, the former offense does not contain an element that is not also found in the latter offense [and] * * * there is only one separately punishable offense."). In determining whether convictions must merge, we look to the statutory elements of each offense rather than the factual details set out in the indictment. State v. Fujimoto , 266 Or.App. 353, 357, 338 P.3d 180 (2014). In this case, the parties' merger dispute turns on whether all of the elements of the crime of possession of methamphetamine (ORS 475.894 ) are subsumed within the crime of delivery of methamphetamine (ORS 475.890 ).

Defendant was found guilty of violating ORS 475.890, which provides that it is "unlawful for any person to deliver methamphetamine," and ORS 475.894, which provides that it is "unlawful for any person knowingly or intentionally to possess methamphetamine." Defendant acknowledges that, ordinarily, possession and delivery drug offenses do not merge. See State v. Sargent , 110 Or.App. 194, 198, 822 P.2d 726 (1991) (holding that "possession and delivery do not merge as a matter of law, because it is possible to commit the crime of delivery without having a possessory interest in the controlled substance"). Defendant nevertheless contends that they must merge in this case because, as charged, both crimes required the state to prove that defendant possessed eight grams of methamphetamine to meet the definition of a "commercial drug offense." See ORS 475.900(1)(b)(K)(iii) (specifying that, in order to be considered as one of the three commercial drug offense factors, an offender must possess "[e]ight grams or more of a mixture or substance containing a detectable amount of methamphetamine"); ORS 475.900(4) (requiring the state to plead and prove commercial drug offense factors beyond a reasonable doubt). Stated another way, defendant argues that, because the delivery charge alleged that defendant actually possessed methamphetamine (in addition to delivering it), the crime of possession is subsumed within the elements of delivery as charged in this case. Thus, defendant contends that the indictment did not allege anything in Count 2 (possession) that it did not also allege in Count 1 (delivery), and, therefore, the trial court was required to merge the two counts into a single conviction for delivery of methamphetamine.

Defendant's merger argument presupposes that the alleged subcategory factors for each of the charged offenses are, functionally, elements of those offenses. That premise, however, is contrary to our decision in State v. Wright , 150 Or.App. 159, 163, 945 P.2d 1083 (1997), rev. den. , 326 Or. 390, 952 P.2d 63 (1998), where we held that subcategory factors alleged in the indictment did not preclude merger of multiple offenses that, in the absence of those subcategory allegations, would merge into a single conviction. In that case, the defendant was charged with two counts each of delivery, possession, and manufacturing of a controlled substance. Id. at 161, 945 P.2d 1083. Each pair of counts alleged additional subcategory factors—substantial quantity of a controlled substance and commercial drug offense—such that each count was differentiated from the other only by "additional facts in support of an offense-subcategory" (i.e. , one delivery count included facts alleging that the offense involved a substantial quantity of a controlled substance, and the other delivery count alleged that it was a commercial drug offense). Id. The trial court found the defendant guilty and entered separate convictions on all counts. Id. On appeal, the defendant argued that each pair of convictions should merge, resulting in one conviction each for manufacturing, delivery, and possession of a controlled substance. Id. at 161–62, 945 P.2d 1083. We agreed, concluding that, although each pair alleged different subcategory factors, the elements of the charged offenses in those pairs were identical because "the facts alleged in support of the offense-subcategories are not elements of the offense." Id. at 163, 945 P.2d 1083. Thus, we held that the trial court erred by failing to merge the guilty verdicts on the paired counts.

Subsequently, in Baker , we applied that reasoning to conclude that, "[i]f subcategory allegations do not preclude merger of otherwise identical counts, it follows that such allegations also should not lead to the merger of multiple offenses that would not merge absent those allegations."

Baker , 265 Or.App. at 505, 336 P.3d 547 (first emphasis added, second emphasis in original) (concluding that the trial court did not err by declining to merge the guilt determinations for second-degree burglary and first-degree theft into a single...