State v. Tacia

543 P.3d 713

330 Or.App. 425

STATE of Oregon, Plaintiff-Respondent,

v.James Gary TACIA, Defendant-Appellant.

A175706

Court of Appeals of Oregon.

Argued and Submitted April 26, 2023

January 31, 2024

Jackson County Circuit Court, 19CR24287; Timothy Barnack, Judge.

David L. Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Rolf Moan, Salem, Assistant, Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

MOONEY, J.

₄₂₇Defendant appeals a judgment of conviction, entered after a jury trial, for unlawful delivery of methamphetamine (Count 1), ORS 475.890;¹ unlawful manufacture of methamphetamine (Count 2), ORS 47S.886;² and unlawful possession of methamphetamine (Count 3), ORS 475.894(1).³ He contends in his first three assignments of error that the trial court erred by failing to sua sponte acquit him of all counts because there was obviously insufficient evidence that he possessed the quantity of methamphetamine necessary for each offense and the sentence imposed by the court. As we will explain, it was not obvious that the evidence did not support a finding that defendant constructively possessed 10 or more grams of methamphetamine and we, therefore, reject the first assignment and affirm the conviction for unlawful possession of 10 or more grams of methamphetamine (Count 3). As we will also explain, it was not obvious that the evidence did not support a finding that defendant manufactured 100 or more grams of methamphetamine and we, thus, reject the third assignment and affirm the conviction for unlawful manufacture of methamphetamine (Count 2) as well.

In his second and fourth assignments, defendant relies on our decision in State v. Hubhell, 314 Or App 844, 500 P.3d 728 (2021), aff’d, 371 Or. 340, 537 P.3d 503 (2023) (Hubhell I), as a basis for plain error review of his delivery conviction. The parties briefed and argued this matter before the Supreme Court issued its decision in State v. Hubbell, 371 Or. 340, 537 P.3d 503 (2023) (Hubbell II), in which it affirmed Hubhell I. As we will explain, Hubbell II requires us to reverse the delivery conviction (Count 1). But because we also conclude that the evidence was sufficient to establish the lesser included offense of attempted delivery, and because the jury necessarily found the elements of ₄₂₈attempted delivery, we remand for entry of a judgment of conviction for attempted delivery on Count 1.⁴

I. PLAIN ERROR REVIEW

[1, 2] Defendant did not move for a judgment of acquittal (MJOA) on any count in the trial court, and therefore, he failed to preserve the arguments he now makes on appeal. In general, issues "not preserved in the trial court will not be considered on appeal." State v. Wyatt, 331 Or, 335, 341, 15 P.3d 22 (2000). We do, however, have discretion to correct, an error that is "plain." ORAP 5.45(1); State v. Gornick, 340 Or. 160, 166, 130 P.3d 780 (2006). "An error is ‘plain’ when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without our having to choose among competing inferences." State v. Durant, 327 Or App 363, 364, 535 P.3d 808 (2023) (citing State v. Vanornum, 354 Or, 614, 629, 317 P.3d 889 (2013)).

Defendant contends that the trial court plainly erred by not sua sponte acquitting him of the charged offenses, and he urges us to exercise our discretion to correct those errors. "Because defendant did not preserve [his] argument[s] below, [he] faces the additional obstacle of establishing that the trial court committed an error that is plain." State v. Gayman, 312 Or App 193, 196, 492 P.3d 130 (2021). To establish an error of law here, defendant must demonstrate that it is obvious and not reasonably in dispute that no reasonable trier of fact could have found that the state proved the essential elements of the charged crimes beyond a reasonable doubt.

II. STANDARDS OF REVIEW

A. Sufficiency of the Evidence

[3] In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the state, State v. Daniels, 348 Or. 513, 518, 234 P.3d 976 (2010), and we "resolve all conflicts of evidence in favor of the state and give the state the benefit of all reasonable inferences." State v. Rader, 348 Or. 81, 91, 228 P.3d 552 (2010).

₄₂₉B. Instructional Error

[4, 5] We review a court’s jury instructions for legal error. State v. Wier, 260 Or App 341, 345, 317 P.3d 330 (2013). We review the instructions as a whole and will not reverse unless the instruction likely "‘created an erroneous impression of the law in the minds of the [jurors] which affected the outcome of the case.’" State v. Maney, 244 Or App 1, 7, 260 P.3d 547 (2011), rev. den., 351 Or. 545, 274 P.3d 184 (2012) (quoting Waterway Terminals v. P. S. Lord, 256 Or. 361, 370, 474 P.2d 309 (1970)) (brackets in original).

III. FACTS

The facts occurred during a traffic stop, the legality of which is not disputed. We draw the facts, in accordance with our standard of review, from the testimony and exhibits in the record.

Jackson County Sheriffs Deputies Tuff and Grieve stopped defendant while defendant was driving a car with three passengers. Mahoney occupied the front passenger Seat and there were two others seated in the back seat. The car was registered to Mahoney’s mother or brother. As lead investigator, Tuff approached defendant on the driver’s side of the vehicle and Grieve approached Mahoney on the passenger side of the vehicle. Tuff asked whether the car was insured. Mahoney responded that it was covered by Farmers and Tuff asked for proof of insurance, When Grieve approached Mahoney, he observed that she was wearing a "zip-down jacket" or "sweatshirt" and he "saw her hand shoving stuff towards her left side." When asked if he observed Mahoney "grab it from the center console—or something and put it into her sweatshirt," Grieve testified:

"I did, yes. The—the transfer that I saw was something up to her right hand, which was then stuffed to the left side of—in her jacket."

During the stop, an officer with an assigned narcotics dog was called to assist and the dog alerted that officer to the "presence of a narcotic odor within the vehicle." Grieve then performed a "brief pat-down" of Mahoney and called for a female officer, Stone, to conduct a more thorough search. Grieve advised Stone that Mahoney had "disclosed ₄₃₀[that] she does have dope on her" and that "[s]he says she hais 4 ounces." Ultimately, a red makeup bag with several baggies containing a total of 98.95 grams of methamphetamine, several unused baggies, two capped needles, and a digital scale was removed from the sleeve of Mahoney’s sweatshirt.

In the meantime, Tuff had questioned defendant, who admitted that he had "a little bit" of methamphetamine that he described as a "ball" that "was just cut." Tuff later testified that when he heard defendant say that it "was just cut" he understood that to mean "that it was just cut off or broken off of a bigger piece of methamphetamine" or that some other substance had been mixed in "to make a smaller quantity a little bigger." Tuff searched defendant and found 4.3 grams of methamphetamine in a baggie located in defendant’s pocket. While Tuff field-tested the contents of that baggie, defendant asked if Tuff would like to borrow "his scale." The only scale found in the vehicle was the one found in Mahoney’s makeup bag. When Tuff asked whether defendant had any needles, he replied that he "might" and he made a remark about his "girlfriend," but the full comment was not audibly captured on Tuff’s bodycam. Defendant and Mahoney both denied that she was defendant’s "girlfriend," although defendant also referred to Mahoney as "honey" and "baby" in a recorded jail-house call.

Mahoney testified that before the traffic stop, she and defendant had been at her, house, and that, at the time of the stop, she was giving defendant a ride to his car. They did not make any stops between the time they left the house and the time they were pulled over by Tuff and Grieve. In total, deputies seized just over 100 grams of methamphetamine from defendant and Mahoney, which Tuff testified is a dealer quantity.

IV. CONSTRUCTIVE POSSESSION

[6] Defendant notes that the amount of methamphetamine found in his personal possession was insufficient alone to prove that he had committed the crimes with which he was charged, and he contends that the evidence is plainly insufficient to establish that he constructively possessed the methamphetamine found in Mahoney’s makeup ₄₃₁bag. Specifically, defendant argues that the fact that he was driving the car and that Mahoney may have been his girlfriend do not establish that he had a right to control all the drugs in the car. The state counters that the evidence is legally sufficient, or at least not plainly insufficient, because defendant physically possessed some of the methamphetamine found in the car, the makeup, bag had been accessible to him in the center console before the stop, and defendant referred to the scale as his own.

[7–12] "Proof of either actual or constructive possession" is sufficient to establish that defendant possessed a controlled substance. State v. Sosa-Vasquez, 158 Or App 445, 448, 974 P.2d 701 (1999). To prove constructive possession of a controlled substance, the state must show that the defendant exercised control over or had the right to control the substance. State v. Fry, 191 Or App 90, 93, 80 P.3d 506 (2003). One may exercise control jointly with other persons. State v. Sherman, 270 Or App 459, 461, 349 P.3d 573, rev. den., 357 Or. 596, 358 F.3d 1002 (2015). Mere proximity to a controlled substance "is not a sufficient basis from which to draw an inference of...