State v. Downes

• Decision Date: 12 December 1977
• Citation: 31 Or.App. 1183,572 P.2d 1328
• Parties: STATE of Oregon, Respondent, v. Arthur Robert DOWNES, Appellant.
• Court: Oregon Court of Appeals

Page 1328

572 P.2d 1328

31 Or.App. 1183

STATE of Oregon, Respondent, v. Arthur Robert DOWNES, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Oct. 17, 1977.

Decided Dec. 12, 1977.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

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.

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 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 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 have stated in several cases, starting with State v. Farr, 8 Or.App. 78, 492 P.2d 305, rev. den. cert. denied, 406 U.S. 973, 92 S.Ct. 2423, 32 L.Ed.2d 674 (1972), would not be considered on appeal in the absence of proper objection in the trial court. In Woolard, separate statutes were violated and the question was whether separate convictions and sentences could be imposed. A variation arose in State v. Welch, 264 Or. 388, 505 P.2d 910 (1973), in which defendant was convicted of two violations of the same statute where the conduct was part of a single transaction, and was sentenced on both. In the case at bar, we have held that defendant's conduct did not violate ORS 167.207, and therefore his conviction on that count cannot stand. Unlike the Woolard-Welch type error, the error here is that the facts do not constitute a crime under ORS 167.207. Assuming, arguendo, that the error was waived by defendant's failure to move for judgment of acquittal, we exercise our discretion to notice egregious error apparent on the face of the record to avoid clear injustice. State v. Martin, 15 Or.App. 498, 516 P.2d 753 (1973), rev. den. (1974).

Since the trial court merged the two convictions for the purpose of sentencing and sentenced defendant to a term in excess of the maximum authorized for a Class A misdemeanor, we must remand for resentencing.

Reversed as to Count I, criminal activity in drugs by possession, and remanded for resentencing on Count II.

1 ORS 167.207 provides:

"(1) A person commits the offense of criminal activity in drugs if he knowingly and unlawfully manufactures, cultivates, transports, possesses, furnishes, prescribes, administers, dispenses or compounds a narcotic or dangerous drug.

"(2) Except as provided in subsections (3) and (4) of this section, criminal activity in drugs is a Class B felony, or the court may, under the criteria set forth in ORS 161.705, enter judgment for a Class A misdemeanor and impose sentence accordingly.

"(3) Notwithstanding subs...