State v. Villagomez

362 Or. 390

412 P.3d 183

STATE of Oregon, Petitioner on Review,

v.Jose Roberto Fierro VILLAGOMEZ, Respondent on Review.

CC 13CR08907

SC S064507

Supreme Court of Oregon.

Argued and submitted September 18, 2017.

February 8, 2018

Andrew M. Lavin, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Morgen E. Daniels, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn, and Nelson, Justices, and Lagesen, Judge of the Court of Appeals, Justice pro tempore.^**

WALTERS, J.

A jury found defendant guilty of unlawful possession and unlawful delivery of methamphetamine. The presumptive sentence for those crimes is probation. However, under ORS 475.900(1)(b), when the state establishes that those crimes constituted commercial drug offenses, the presumptive sentence is imprisonment. To prove a commercial drug offense, the state must establish any three out of eleven statutorily enumerated factors, one of which is that the "delivery" of the drug was "for consideration." This case requires us to determine whether that factor may be proved by evidence that the defendant possessed the drugs with an intent to sell them, or, instead, requires the state to prove a completed sale of drugs or an existing agreement to sell them. For the reasons that follow, we conclude that the legislature intended the latter, and we affirm the decision of the Court of Appeals. State v. Villagomez , 281 Or.App. 29, 41, 380 P.3d 1150 (2016).

The relevant facts are not in dispute. Defendant was stopped for a traffic violation. During that stop, officers discovered 141.98 grams of methamphetamine divided into separate bags, more than $4,000 cash, three cellphones, and a ledger that the police believed contained drug records. The state charged defendant with unlawful possession of methamphetamine under ORS 475.894 and unlawful delivery of methamphetamine under ORS 475.890. At trial, the state sought to prove delivery by showing that defendant possessed a large amount of methamphetamine with the intent to transfer it. The Court of Appeals has held that such evidence, commonly referred to as a Boyd delivery, is sufficient to prove a delivery under ORS 475.005(8). State v. Boyd , 92 Or.App. 51, 54, 756 P.2d 1276, rev. den. , 307 Or. 77, 763 P.2d 731 (1988).¹ The state also alleged, for the purpose of seeking an enhanced sentence, that defendant's possession and delivery of methamphetamine were "commercial drug offense[s]" under ORS 475.900(1)(b). That statute provides that unlawful possession, delivery, or manufacture of certain controlled substances is a commercial drug offense if accompanied by any three of eleven factors (CDO factors). In this case, the state alleged the existence of four CDO factors: (1) the delivery was of methamphetamine "and was for consideration"; (2) defendant was in possession of $300 or more in cash; (3) defendant was in possession of drug records; and (4) defendant was in possession of eight grams or more of methamphetamine. The state also alleged another fact, independent of the CDO factors, that, if proved, would result in an enhanced sentence under ORS 475.900 (1)(a)(C). The state alleged that defendant had delivered a "substantial quantity" of methamphetamine.

At the close of evidence, defendant moved for a judgment of acquittal on the "for consideration" CDO factor, ORS 475.900(1)(b)(A). He argued that, to satisfy that factor, the state needed to show that there was "actual" or "real" consideration, which "must have already been given to the defendant or[,] in the very least, a bargain must have been struck leaving only the consideration to be exchanged between parties." The state disagreed and argued that, because "constructive delivery is included in delivery," the "for consideration" factor is appropriate in a "constructive delivery case." The trial court agreed with the state and denied defendant's motion. The jury found defendant guilty of unlawful possession and unlawful delivery of methamphetamine. It also found that the state had proved three of the four alleged CDO factors, including the "for consideration" factor, and the "substantial quantity" enhancement. Based on those findings, the trial court imposed a commercial drug offense sentence under ORS 475.900. For defendant's delivery conviction, the court placed defendant in crime category 9-I² on the sentencing guidelines grid and sentenced him to 36 months' prison. For defendant's possession conviction, the court placed defendant in crime category 8-I and sentenced him to 16 months' prison.

Defendant appealed to the Court of Appeals, where he renewed his argument about the sufficiency of the evidence to establish the "for consideration" CDO factor. The Court of Appeals agreed with defendant that the evidence was insufficient to prove that factor. Villagomez , 281 Or.App. at 40, 380 P.3d 1150. The court interpreted ORS 475.900(1)(b)(A) to require evidence of a completed sale or an existing agreement to sell the drugs that defendant possessed. Id. at 39, 380 P.3d 1150. Because the state had not offered such evidence, the court held that the trial court had erred in denying defendant's motion for a judgment of acquittal. Id. at 40, 380 P.3d 1150. Accordingly, the court held that the state had proved only two of three factors necessary to establish a commercial drug offense and that the trial court had erred in sentencing defendant to prison on that basis. Id. However, the court explained, the state had proved that defendant had delivered a "substantial quantity" of methamphetamine, which independently permitted an enhanced sentence for the delivery conviction under ORS 475.900(1)(a)(C). Id. Thus, the court reasoned, the trial court's error in construing the "for consideration" factor was harmless. Id. at 40-41, 380 P.3d 1150. The same was not true for defendant's enhanced sentence for possession, however. Id. at 41, 380 P.3d 1150. Because the "substantial quantity" finding did not permit an enhanced sentence for the possession conviction, the court reversed that conviction and remanded for entry of judgment and resentencing, without the commercial drug offense enhancement.³ Id.

The state filed a petition for review, which we allowed. In this court, the parties reprise their arguments concerning the evidence that is necessary to establish the "for consideration" CDO factor, ORS 475.900(1)(b)(A). We approach that issue using the methodology established in State v. Gaines , 346 Or. 160, 206 P.3d 1042 (2009). Our goal is to determine the meaning that the legislature intended, by considering the text and context of that statutory provision, as well as any pertinent legislative history. See id. at 171-72, 206 P.3d 1042 (setting out methodology for determining the legislature's intent).

ORS 475.900 was enacted in 1991 and provides for increased sentences for certain drug crimes. Relevant here, a sentence "shall be classified as crime category 8 on the sentencing guidelines" if:

"(b) The violation constitutes possession, delivery or manufacture of a controlled substance and the possession, delivery or manufacture is a commercial drug offense. A possession, delivery or manufactureis a commercial drug offense for purposes of this subsection if it is accompanied by at least three of the following factors:

"(A) The delivery was of * * * methamphetamine * * * and was for consideration[.]"

ORS 475.900(1)(b)(A). This case requires that we construe the meaning of subparagraph (A) and, particularly, the terms "delivery" and "for consideration."

"Delivery" is statutorily defined. It means "the actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance, whether or not there is an agency relationship." ORS 475.005(8). As noted, because "delivery" includes "constructive" and "attempted" as well as "actual" transfers of a controlled substance, the Court of Appeals has construed that term to permit conviction based on evidence that a defendant possessed a large amount of a controlled substance with an admitted intent to sell it. Boyd , 92 Or.App. at 54, 756 P.2d 1276. That is evidence, the court explained, that "amounts to evidence that [the defendant] had taken a substantial step toward the commission of the crime of delivery of a controlled substance." Id.

"Consideration" is not defined by statute, but it has a well-defined legal meaning that we presume that the legislature intended. See Zimmerman v. Allstate Property and Casualty Ins. , 354 Or. 271, 280, 311 P.3d 497 (2013) ( "When the term has acquired specialized meaning in a particular industry or profession, however, we assume that the legislature used the term consistently with that specialized meaning."). This court has defined "consideration" as "the accrual to one party of some right, interest, profit or benefit or some forebearance, detriment, loss or responsibility given, suffered or undertaken by the other." Shelley v. Portland Tug & Barge Co. , 158 Or. 377, 387, 76 P.2d 477 (1938). Black's Law Dictionary and The Restatement (Second) of Contracts offer similar definitions. See Black's Law Dictionary 306 (6th ed. 1990) (Consideration is "[t]he inducement to a contract. The cause, motive, price, or impelling influence which induces a contracting party to enter into a contract. Some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other."); Restatement (Second) of Contracts § 71 (1981) (consideration "must be bargained for," which is accomplished when performance or a return promise "is sought by the promisor in...