State v. Fraga-Ortiz

• Decision Date: 29 August 2001
• Citation: 176 Or. App. 268,31 P.3d 1089
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Respondent, v. Abel FRAGA-ORTIZ, Appellant.

31 P.3d 1089

176 Or. App. 268

STATE of Oregon, Respondent, v. Abel FRAGA-ORTIZ, Appellant.

C970296CR; A106233

Court of Appeals of Oregon.

Argued and Submitted March 28, 2001.

Decided August 29, 2001.

Steven V. Humber argued the cause for appellant. With him on the brief was David E. Groom, State Public Defender.

Timothy A. Sylwester argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge, and KISTLER, Judge.

EDMONDS, P.J.

Defendant appeals his convictions for ten counts of delivery of controlled substances and eight counts of possession of controlled substances. ORS 475.992. He argues that the trial court erred when it denied his motion to suppress certain evidence found during a warrantless search of a suitcase and that it subsequently erred by giving a jury instruction, over his objection, that stated that the possession of controlled substances with the intent to deliver them also constitutes delivery, even when no actual transfer of the drugs occurs. We affirm defendant's convictions on counts 1 through 9, reverse defendant's convictions on counts 10-18, and remand for a new trial on those counts.

Defendant was arrested after he was involved in several drug sales to an undercover officer. That arrest led to the charges in counts 1 through 9. Immediately following his arrest, defendant was advised of his Miranda rights, and he consented to the officers' search of several vehicles. He was then taken to several addresses in Hillsboro with which he had some connection. He consented to a search of his room at a residence at 5302 E. Baseline, where little evidence was found. He was then questioned about a residence at 951 SE 13th, Apartment #43, because he had been issued Oregon identification cards that showed that residence as his address. Defendant told police that he did not live there and had not lived there recently. An officer obtained consent to search Apartment #43 from Pena, a resident of that apartment, and searched the entire apartment. When officers found a room containing a large suitcase and multiple personal belongings, they asked Pena who owned the items. He said that they belonged to a man who lived there. The officers searched the suitcase and found the controlled substances that form the basis of defendant's convictions in counts 10 through 18, along with papers belonging to defendant.

At a pretrial hearing, defendant moved to suppress the evidence found in apartment # 43, claiming that Pena did not have authority to consent to a search of the room in which the evidence was found or to consent to a search of the suitcase and that the state did not otherwise prove that the warrantless search did not violate a protected interest of defendant's under Article I, section 9, of the Oregon Constitution.¹ The trial court reasoned:

"[t]hat the defendant had no personal protected privacy interest in the suitcase at 951 SE 13th, Apt 43, Hillsboro, Oregon, and the defendant made no statements that he had a proprietary or privacy interest in that suitcase."

It concluded:

"Finally, with regard to the search of the premises and items contained in the premises at 951 Southeast 13th, Apartment 43, the Court finds that the defendant has never claimed any proprietary interest in the residence or anything contained there-in-in fact, has steadfastly denied any interest in such things-and, therefore, has no standing to complain as regards a search that was made."

The trial court then denied the motion to suppress,² and the case proceeded to trial before a jury.

At trial, the trial court gave a jury instruction that stated, as to the charges of delivery of controlled substances, that "possession with intent to deliver also constitutes delivery, even when no actual transfer is shown." Defendant objected to the instruction, saying to the court:

"When you, in the delivery instruction, defined secondarily, I guess it is, possession with intent to deliver constitutes delivery even when no actual delivery is shown, that's surplus language beyond the statute. It's not contained in the statute. So I would except to that portion of that statute. That's the only exception." Defendant was convicted on all 18 counts of the indictment.

On appeal, defendant assigns error to the denial of his motion to suppress and to the giving of the jury instruction. As to the latter assignment, defendant's counsel told the trial court that the jury instruction was erroneous because it added "surplus language beyond the statute." We understand that statement to mean that the instruction had the effect of permitting the jury to find defendant guilty of delivery of a controlled substance even though no actual delivery occurred. On appeal, defendant raises a different issue. He argues that the instruction was erroneous because it "shifted the burden of persuasion from the state on the element of `commission of a substantial step,'" and "eliminated the qualitative language of `substantial step' as an element altogether." When an error alleged on appeal is not raised below, but a different claim of error is made, the error alleged on appeal is unpreserved. State v. Montez, 324 Or. 343, 356, 927 P.2d 64 (1996),cert den 520 U.S. 1233, 117 S.Ct. 1830, 137 L.Ed.2d 1036 (1997). Moreover, there is no compelling reason in this case to exercise our discretionary power to address the assignment as error apparent on the face of the record, and we therefore decline to address defendant's unpreserved claim of error. See State v. Wyatt, 331 Or. 335, 15 P.3d 22 (2000)

. Defendant's assignment of error as to the jury instruction is his only challenge on appeal to his convictions on counts 1 through 9, and we therefore affirm those convictions.

As we understand the trial court's rulings on the motion to suppress, it essentially made two rulings. First, the trial court ruled under Article I, section 9, of the Oregon Constitution, that the defendant did not have standing to complain about the seizure and search of the suitcase, because he never asserted an interest in the suitcase. Second, the trial court ruled that "defendant had no personal protected privacy interest in the suitcase," as a matter of law.

As to the trial court's ruling that defendant did not have "standing" to complain of the search, the Supreme Court said in State v. Tanner, 304 Or. 312, 316, 745 P.2d 757 (1987),

"there is no issue of defendant's standing to challenge the unlawful search[.] A criminal defendant always has standing to challenge the admission of evidence introduced by the state. The question whether a defendant's personal rights were violated by an unlawful search or seizure is often mislabeled a question of `standing,' but the question goes to the merits of a motion to suppress. The term `standing' should be used only in the narrow sense of capacity to make a legal challenge."

Moreover, defendant was not required to make an affirmative assertion of a possessory or privacy interest in the suitcase in order to challenge its admission into evidence. In State v. Tucker, 330 Or. 85, 88-89, 997 P.2d 182 (2000), the Supreme Court said,

"In the context of a warrantless search, a defendant is not required to assert a protected property or privacy interest on which the state intruded. Rather, consistent with ORS 133.693(4), the burden is on the state to prove that the warrantless search did not violate a protected interest of the defendant." (Emphasis added.)

Under Tucker, the issue is whether defendant had a protected privacy or possessory interest in the suitcase.

As to the trial court's ruling that defendant had no protected interest in the suitcase under Article I, section 9, we review the trial court's explicit and implicit findings of fact to determine whether they are supported by evidence and its conclusion of law for errors of law. Ball v. Gladden, 250 Or. 485, 443...