State v. Lopez-Medina, LOPEZ-MEDIN

• Decision Date: 28 August 1996
• Docket Number: A,LOPEZ-MEDIN
• Citation: 923 P.2d 1240,143 Or.App. 195
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Respondent, v. Jesusppellant. 9402628CR; CA A88064.

Page 1240

923 P.2d 1240

143 Or.App. 195

STATE of Oregon, Respondent, v. Jesus LOPEZ-MEDINA, Appellant.

9402628CR; CA A88064.

Court of Appeals of Oregon.

Submitted on Record and Briefs

May 3, 1996.

Decided Aug. 28, 1996.

Garrett A. Richardson, Portland, and Multnomah Defenders filed the brief for appellant.

Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Kaye E. Sunderland, Assistant Attorney General, filed the brief for respondent.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Defendant was indicted with two codefendants, Jose Manuel-Pena ¹ and Javier Pulido-Pena, in an eight-count indictment alleging various drug offenses arising from the execution of search warrants on December 2, 1994, in Klamath County. The jury found him not guilty on six of the counts and convicted him of delivery of marijuana for consideration and delivery of a controlled substance (methamphetamine). ORS 475.992. On appeal, he argues that the trial court erred in denying his motions for judgment of acquittal on the two counts. We reverse.

Pursuant to the warrants, two residences were searched. The first was located on Highway 39 and was the home of Pulido-Pena, Arreberto Pena-Arrendondo, and a man named Carlos. Pulido-Pena and Pena-Arrendondo are brothers and both worked at the Highway 39 ranch, owned by Luis Pena, another brother. The second residence searched, at 2232 Union Avenue, was defendant's residence. There was testimony that defendant is Arreberto Pena-Arrendondo's brother. Next door to defendant's house were the Newhall Apartments, which were also owned by Luis Pena, and managed by defendant.

At the Highway 39 house, the officers found evidence of a drug operation, including drugs, scales and repackaging material. The officers also found guns and ammunition. In the search, the officers used a dog that "alerted" to various items. At one point, the dog alerted to a dresser drawer in which the police found a large amount of cash. The search also revealed a bill for telephone service at Highway 39, which was addressed jointly to defendant (under the name of Jesus Pena ²) and Javier Pulido at a Menlo Lane residence, six sets of keys to the Newhall Apartments and bank and title company receipts totaling $31,300 in the name of Luis Pena.

During the search of the Union Street residence, the dog alerted to a nightstand in which was found a plastic baggie containing $1000. There was no drug residue on the baggie. Defendant had $840 in his pants pocket, and the dog strongly alerted to that money. Defendant stated that he was unemployed. He said that the money was rent money collected in December, but at trial a rent receipt book was entered into evidence showing two December entries totaling only $361.

There was testimony from an officer that statistics show that 80% of the United States currency involving bills of $20 and above is contaminated with some kind of narcotic residue, and that a $1 bill that has no residue on it could be contaminated by being in a wallet next to a contaminated bill. The officer also testified that the dog could determine the difference between small and large amounts of residue but could not distinguish between kinds of drugs. The officer testified that he sometimes withdraws a couple of hundred dollars in cash and takes it home to experiment with the dog, and that sometimes the dog alerts to the money and sometimes it does not.

There was testimony that city water records showed that Luis Pena owned and paid the water bill for defendant's residence, as well as for the Newhall Apartments. The bill was sent to defendant's Union Avenue address but the water records listed the telephone number at the Highway 39 house as the contact point. At trial, an officer testified that he had been told by a third party that defendant's vehicle had been seen at the Highway 39 house.

Defendant assigns error to the denial of his motions for judgment of acquittal, arguing that there was insufficient evidence to support a finding of guilty. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the state to determine if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989).

Defendant argues that there was no evidence that he was in possession of the controlled substances found at the Highway 39 house, no evidence that marijuana or methamphetamine was found at his Union Street residence, and no evidence that he lived at the Highway 39 premises. Therefore, he argues, he could not be convicted of delivery of controlled substances unless he were convicted under the theory that he intentionally aided the drug operation. Defendant contends that the state argued that "these people" from both residences were intimately connected ³ and relied on the documents and keys showing that Jesus Pena had a connection with Luis Pena and the Highway 39 property. Defendant argues, however, that that evidence showed that Luis Pena owned the property but that it did not show, nor did the cash taken from defendant, that he knew about the drug activities at the Highway 39 property or was involved with them. He contends that the state's evidence does not support an inference beyond a reasonable doubt that he intentionally aided and abetted the drug delivery.

The state argues that the evidence was sufficient to sustain defendant's convictions either on a theory that defendant constructively possessed drugs with the intent to sell them or aided and abetted in the crime of the delivery of the drugs. Delivery is the actual, constructive, or attempted transfer of a controlled substance from one person to another. ORS 475.005(8); State v. Frederickson, 92 Or.App. 223, 226, 757 P.2d 1366 (1988). To prove constructive possession, the state must prove that the defendant knowingly exercised control over, or the right to control, the contraband. State v. Garcia, 120 Or.App. 485, 488, 852 P.2d 946 (1993). To aid and abet requires proof of involvement with the crime, ORS 161.155(2), ⁴ although there does not have to be proof of defendant's personal presence at the time and place of the commission of the offense. State v. Rosser, 162 Or. 293, 344, 86 P.2d 441, 87 P.2d 783, 91 P.2d 295 (1939).

Here, there is no direct evidence that defendant had control of, or connection to, the operation. That connection must be inferred from the underlying facts. The state contends that the underlying facts permit the inference that defendant was involved with the drug activity at the Highway 39 house, where the officers found the telephone bill addressed jointly to defendant and Javier Pulido, as well as six sets of keys to the Newhall Apartments and bank and title company receipts in the name of Luis Pena. Luis Pena owned and paid the water bill for defendant's residence and for the Newhall Apartments, defendant...