State v. Guzman
Decision Date | 17 April 1996 |
Parties | STATE of Oregon, Respondent, v. Loretta Lee GUZMAN, Appellant. C9307-34545; CA A83722. |
Court | Oregon Court of Appeals |
Appeal from Circuit Court, Multnomah County. Stephen Gallagher, Jr., Judge.
Daniel C. Lorenz, Portland, argued the cause for appellant. With him on the brief was Todd R. Worthley.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. On the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Harrison Latto, Assistant Attorney General.
Before RIGGS, P.J., and LANDAU and LEESON, JJ.
Defendant appeals her conviction for possession of a controlled substance. ORS 475.992(4). On our own motion, we vacate defendant's conviction on the ground that the trial court was without authority to enter a conviction on a charge for which defendant was not indicted.
The pertinent facts are not disputed. Defendant was indicted by a grand jury as follows:
Although the indictment did not charge defendant with the offense of possession of a controlled substance and does not contain any factual allegation to that effect, the parties apparently agreed that the offense of possession of a controlled substance is a lesser included offense of the offense of manufacture of a controlled substance and the offense of delivery of a controlled substance. As a result, the offense of possession of a controlled substance was submitted to the jury as a "lesser included" offense.
The jury was unable to reach a decision on the delivery charge, and that charge ultimately was dismissed. The jury found defendant not guilty on the manufacturing charge, but it did find defendant guilty of the "lesser included" charge of possession of a controlled substance. The trial court entered a judgment. 1 Defendant appeals, assigning error to the trial court's denial of her pretrial motions to suppress evidence.
Before addressing the merits of defendant's appeal, we are obliged to determine whether the trial court had jurisdiction to enter the conviction. See State v. Rudder/Webb, 137 Or.App. 43, 47, 903 P.2d 393 (1995), rev. allowed 322 Or. 489, 909 P.2d 161 (1996) ( ); Greeninger v. Cromwell, 127 Or.App. 435, 438, 873 P.2d 377 (1994). As a general rule, a court lacks jurisdiction to enter a conviction on a charge for which a defendant has not been indicted. As this court explained in Riggs v. State of Oregon, 50 Or.App. 109, 622 P.2d 327 (1981):
Riggs, 50 Or.App. at 113-14, 622 P.2d 327; see also Rudder/Webb, 137 Or.App. at 47, 903 P.2d 393 ( ); State v. Cartwright, 40 Or.App. 593, 598, 595 P.2d 1289 (1979) ( ); State v. Martz, 103 Or.App. 105, 106, 795 P.2d 616 (1990).
A court does have jurisdiction to enter a conviction on an offense not expressly charged in the indictment if that offense is a lesser included offense of one that actually does appear in the indictment. See State v. Woodson, 315 Or. 314, 319, 845 P.2d 203 (1993). Whether one offense is a lesser included of another is determined by satisfying either one of two tests: (1) that one offense is "necessarily included" in the other, by virtue of the elements of the former being subsumed in the latter; or (2) that the facts alleged in the indictment expressly include conduct that describes the elements of the lesser included offense. State v. Moroney, 289 Or. 597, 600-01, 616 P.2d 471 (1980) ( rule); State v. Washington, 273 Or. 829, 838, 543 P.2d 1058 (1975); Martz, 103 Or.App. at 106, 795 P.2d 616; Riley v. Cupp, 56 Or.App. 467, 471, 642 P.2d 333, rev. den. 293 Or. 146, 651 P.2d 143 (1982).
In this case, the indictment does not charge defendant with the offense of which she was convicted: possession of a controlled substance. She was charged only with delivery and manufacture. The question, then, is whether possession of a controlled substance is a lesser included offense of either delivery or manufacture of a controlled substance. If it is not, then, under this court's decision in Riggs, the trial court lacked jurisdiction to enter the conviction.
We first examine whether the charge of possession is necessarily included in the statutory definition of either the crime of delivery of a controlled substance or the crime of manufacture of a controlled substance. On the question whether a charge of possession is a lesser included offense of a charge of delivery, our decision in State v. Sargent, 110 Or.App. 194, 822 P.2d 726 (1991), is instructive. In that case, the defendant appealed the trial court's decision to merge his sentences for delivery and possession of a controlled substance that arose out of the same act. 2 The state argued that merger was inappropriate because the possession offense requires proof of an element that the delivery offense does not and vice versa. Specifically, the state argued that "delivery" requires a transfer or an attempted transfer while "possession" does not; and "possession" requires an actual or constructive possession while "delivery" does not. Id. at 197, 822 P.2d 726. We agreed, concluding that "possession and delivery do not merge as a matter of law, because it is possible to commit the crime of...
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