State v. Engen

• Decision Date: 29 December 1999
• Citation: 993 P.2d 161,164 Or. App. 591
• Parties: STATE of Oregon, Respondent, v. Sharon Coleen ENGEN, Appellant.
• Court: Oregon Court of Appeals

993 P.2d 161

164 Or. App. 591

STATE of Oregon, Respondent, v. Sharon Coleen ENGEN, Appellant.

(950636049; CA A101586)

Court of Appeals of Oregon.

Argued and Submitted October 29, 1999.

Decided December 29, 1999.

Mary M. Reese, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.

Jennifer Scott Lloyd, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

HASELTON, J.

Defendant appeals from her conviction for possession of a controlled substance, methamphetamine. ORS 475.992(4)(b). The sole issue is whether the state was required to prove not only that defendant knew that she possessed a controlled substance but also that she knew that that substance was methamphetamine. We conclude that, under ORS 161.095(2), ORS 161.115(1), and ORS 475.992(4), the state is not required to prove a defendant's knowledge of the particular type of controlled substance possessed. Consequently, we affirm.

For purposes of appeal, the material facts are undisputed. Police arrested defendant after watching her drive erratically and seeing her, after stopping, open a small glass vial of the sort commonly used as a container for cocaine or, less commonly, for methamphetamine. Defendant was "wired" and jittery, and the arresting officer believed that she was under the influence of drugs. After her arrest, defendant consented to a search of her purse, which yielded some drug paraphernalia and a one-gram baggie containing a brownish or off-white powder that the officer believed to be methamphetamine or some other controlled substance. Defendant told the police that she had found those items and the glass vial in her son's room earlier in the day, had dropped them into her purse, and had just stopped to inspect them. Laboratory tests established that the substance in the vial and the baggie was methamphetamine.

Defendant was charged, by indictment, with "Possession of a Controlled Substance, Schedule II" pursuant to ORS 474.992(4). That statute reads, in part:

"(4) It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice, or except as otherwise authorized by ORS 475.005 to 475.940 to 475.995. Any person who violates this subsection with respect to:

"* * * * *

"(b) A controlled substance in Schedule II, is guilty of a Class C felony."

The indictment alleged that defendant "did unlawfully and knowingly possess a controlled substance, to wit: methamphetamine listed in Schedule II * * *."

At trial, defendant reiterated that she had found the items in her son's room. She further testified that she suspected that the powder might be a controlled substance; that she had put the items in her purse; that she showed them to her husband, who told her to dispose of them; and that, before she could do so, the police stopped her. Defendant's husband testified that defendant never used methamphetamine but "could probably guess" that a substance was a controlled substance.

Defendant contended that she could not be convicted of possession of a controlled substance, methamphetamine, ORS 475.992(4)(b), because she did not know that the powder was, in fact, methamphetamine. The state countered that a pertinent scienter inquiry was not whether defendant knew the particular type of a controlled substance she possessed, but whether she knew that she possessed a controlled substance of some sort. That dispute was framed in the parties' requested jury instructions. Defendant submitted an instruction that stated, in part:

"In this case, the State must prove beyond a reasonable doubt that the defendant knew that the substance she possessed was methamphetamine."

The court refused that instruction and, instead, gave the state's proposed instruction:

"In this case, the state must prove beyond a reasonable doubt that the defendant knew of both the presence and the narcotic or illicit nature of the substance. The state does not need to prove that the defendant knew the specific identity of the substance." (Emphasis added.)

The court explained its reasoning:

"For what it's worth, I'm looking at cases, there are none in Oregon any closer than have been cited, none in Oregon that I've been able to find and certainly none that I've been cited to that specifically addressed the question whether the knowledge must be that a controlled substance is a particular controlled substance.

"The general—the language that I keep coming across is this notion that in one case the nature of the item—the nature of the substance, narcotic nature of the substance finds analogues in the other cases from other states which do address this. The cases that I'm finding, to the extent that they address this issue at all, require only that the defendant know the illicit nature—the illicit nature or the general nature of the substance possessed. In other words, it's enough from the cases I'm finding that the defendant have knowledge that the substance is an illicit narcotic substance or controlled substance, but does not have to know which specific substance it is. I'm not finding any case that suggests anything to the contrary."

The jury ultimately convicted defendant of possession of a controlled substance, methamphetamine. ORS 475.992(4)(b).

On appeal, defendant's only assignments of error pertain to the jury instructions quoted above. Defendant does not dispute that she did, in fact, possess methamphetamine and that the evidence was sufficient to support a finding that she knew that she possessed a controlled substance of some sort. The only issue is whether the state had to prove that defendant knew that she possessed methamphetamine specifically, and not some controlled substance generally.

Defendant argues that, under the omnibus criminal statutes concerning culpable mental state, a defendant's knowledge of the particular type of controlled substance possessed is a "`material element' of the offense [ORS 475.992(4)(b) ] that necessarily requires a culpable mental state." ORS 161.095(2); ORS 161.115(1). Defendant particularly invokes State v. Blanton, 284 Or. 591, 588 P.2d 28 (1978), affirming 31 Or.App. 327, 570 P.2d 411 (1977), and contends that our holding in State v. Van Norsdall, 127 Or.App. 300, 873 P.2d 345 (1994), and State v. Walker, 140 Or.App. 472, 915 P.2d 1039 (1996), erroneously misconstrued and misapplied Blanton.

The state responds that the only requisite mental state for purposes of ORS 161.095(2) and ORS 161.115(1) is intentional or knowing possession of "a controlled substance," ORS 475.992(4) (emphasis added), and that, because defendant knew that she possessed a controlled substance of some sort, her alleged ignorance of the exact nature of the substance was immaterial. Indeed, the state asserts, defendant's rendition of the statute would permit defendants to entirely avoid criminal liability either through wilful ignorance of the nature of the substance possessed or through the fortuity of a mistaken belief as to the exact nature of the controlled substance: "I thought it was cocaine, but it turned out to be methamphetamine."

The question is straightforward. But its resolution is not. As the trial judge observed, this is—somewhat surprisingly—an issue of first impression in Oregon. In resolving that issue, we consider, in turn, the omnibus statutes relating to culpable mental states, associated appellate case law, and the evolution of criminal drug possession statutes in Oregon.

As part of the 1971 Oregon Criminal Code, the legislature enacted a series of statutes generally describing the content, and requirements of proof, of culpable mental states. See ORS 161.085 to ORS 161.125. Two parallel provisions are especially pertinent to this case. First, ORS 161.095(2) provides:

"Except as provided in ORS 161.105, a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state."¹

Second, ORS 161.115(1) provides:

"If a statute defining an offense prescribes a culpable mental state but does not specify the element to which it applies, the prescribed culpable mental state applies to each material element of the offense that necessarily requires a culpable mental state."

The critical, pivotal phrase of both provisions is "each material element of the offense that necessarily requires a culpable mental state." In a series of decisions since 1973, we and the Supreme Court have wrestled with the content and application of that phrase, as well as with related concepts in an associated statute, ORS 161.105(1).

In State v. Irving, 268 Or. 204, 520 P.2d 354 (1974), rev'g 14 Or.App. 671, 514 P.2d 909 (1973), the defendant was charged with fraudulent sale of imitation drugs under former ORS 167.232 (1971).² That statute provided that any person who sold a substance "not a narcotic or dangerous drug, to a peace officer or his agent by falsely representing it to be a narcotic or dangerous drug" was guilty of a Class B misdemeanor. The defendant successfully demurred, contending, inter alia, that the indictment was defective because it did not allege that he knew that he was making a sale to a police officer. In particular, the defendant contended that the sale of "imitation" drugs to a peace officer or agent was a material element of the offense "necessarily requir[ing] a culpable mental state." ORS 161.095(2). This court affirmed the dismissal, accepting the defendant's argument. In so holding, we emphasized that the 1971 code revisions were intended to limit the imposition of criminal strict liability and...