State v. Downes
| Court | Court of Appeals of Oregon |
| Writing for the Court | Before SCHWAB, C. J., and THORNTON and BUTTLER; BUTTLER |
| Citation | 31 Or.App. 1183,572 P.2d 1328 |
| Decision Date | 12 December 1977 |
| Parties | STATE of Oregon, Respondent, v. Arthur Robert DOWNES, Appellant. |
Page 1328
v.
Arthur Robert DOWNES, Appellant.
Decided Dec. 12, 1977.
Page 1329
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
[31 Or.App. 1184] John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.
Before SCHWAB, C. J., and THORNTON and BUTTLER, J.
[31 Or.App. 1185] BUTTLER, Judge.
Defendant appeals from a judgment on two convictions: one for criminal activity in drugs by possession, ORS 167.207, 1 and the other for criminal use of drugs, ORS 167.217. 2 For the purpose of sentencing, the convictions were merged and defendant
Page 1330
was sentenced to an indeterminate term of four years.The convictions arose out of one incident, witnessed by an undercover officer, which consisted of another person's injecting into defendant's arm a "controlled substance" later identified as phencyclidine (PCP). Under these facts, it is contended that defendant was [31 Or.App. 1186] not only guilty of using the drug, but he was also guilty of possessing it because it was in his bloodstream.
The legislative scheme does not permit such a conclusion. If we were to accept the state's theory, everyone guilty of criminal use of drugs under ORS 167.217, subject to a maximum term of one-year imprisonment, would also be guilty of criminal activity in drugs under ORS 167.207, subject to a maximum term of imprisonment of ten years. Not only would there be no necessity for ORS 167.217, but the apparent legislative scheme of treating illegal use as a less serious offense than illegal possession would be thwarted.
Furthermore, ORS 161.015(8) defines "possess" as meaning "to have physical possession or otherwise to exercise dominion or control over property." (Emphasis added.) Under the statutory definition, the exercise of dominion or control over the property is necessary. Obviously, after a drug is ingested or injected into the human body, the host body can no longer exercise dominion or control over it.
The state contends that defendant waived the error by not objecting to the judgment order entered in the circuit court, citing State v. Webber, 14 Or.App. 352, 513 P.2d 496 (1973). Webber dealt with a Woolard 3-type error, which we...
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State v. Cervantes, 05FE0735ST;
...says that Count 3 fails to allege a crime because it is logically impossible for the State to convict. She relies on State v. Downes, 31 Or.App. 1183[, 572 P.2d 1328] (1977). See also State v. Daline, 175 Or.App. 625[, 30 P.3d 426] (2001). These cases hold that once a drug enters one's body......
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U.S. v. Blackston, No. 90-3750
...("The term 'possession' of liquor should not be construed to include liquor which has been assimilated by the body."); State v. Downes, 31 Or.App. 1183, 1184, 572 P.2d 1328, 1330 (1977) ("Obviously, after a drug is ingested or injected into the human body, the host body can no longer exerci......
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Employment Division, Department of Human Resources of Oregon v. Smith Employment Division, Department of Human Resources of Oregon v. Black, Nos. 86-946
...into the bloodstream did not constitute "possession" within the meaning of the predecessor statute, State v. Downes, 31 Ore.App. 1183, 572 P.2d 1328 (1977), respondents argue that their ceremonial use of the drug was not unlawful.16 The Attorney General of the State advises us that this arg......
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State v. McCoy, Nos. 13575
...809 P.2d 941 (Alaska Ct.App.1991); Flinchpaugh, 659 P.2d at 211; State v. Lewis, 394 N.W.2d 212 (Minn.Ct.App.1986); State v. Downes, 31 Or.App. 1183, 572 P.2d 1328 (1977); State v. Hornaday, 105 Wash.2d 120, 713 P.2d 71 (1986) (en banc). In addition, Defendants argue that once the drug is i......
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State v. Cervantes, 05FE0735ST;
...says that Count 3 fails to allege a crime because it is logically impossible for the State to convict. She relies on State v. Downes, 31 Or.App. 1183[, 572 P.2d 1328] (1977). See also State v. Daline, 175 Or.App. 625[, 30 P.3d 426] (2001). These cases hold that once a drug enters one's body......
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U.S. v. Blackston, No. 90-3750
...("The term 'possession' of liquor should not be construed to include liquor which has been assimilated by the body."); State v. Downes, 31 Or.App. 1183, 1184, 572 P.2d 1328, 1330 (1977) ("Obviously, after a drug is ingested or injected into the human body, the host body can no longer exerci......
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Employment Division, Department of Human Resources of Oregon v. Smith Employment Division, Department of Human Resources of Oregon v. Black, Nos. 86-946
...into the bloodstream did not constitute "possession" within the meaning of the predecessor statute, State v. Downes, 31 Ore.App. 1183, 572 P.2d 1328 (1977), respondents argue that their ceremonial use of the drug was not unlawful.16 The Attorney General of the State advises us that this arg......
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State v. McCoy, Nos. 13575
...809 P.2d 941 (Alaska Ct.App.1991); Flinchpaugh, 659 P.2d at 211; State v. Lewis, 394 N.W.2d 212 (Minn.Ct.App.1986); State v. Downes, 31 Or.App. 1183, 572 P.2d 1328 (1977); State v. Hornaday, 105 Wash.2d 120, 713 P.2d 71 (1986) (en banc). In addition, Defendants argue that once the drug is i......