State v. Miller

Decision Date27 August 1973
Citation14 Or.App. 396,97 Adv.Sh. 1285,513 P.2d 508
PartiesSTATE of Oregon, Respondent, v. Larry Ralph MILLER, Appellant.
CourtOregon Court of Appeals
John K. Hoover, 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 Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

SCHWAB, Chief Judge.

Defendant upon trial to a jury was convicted of two counts of criminal activity in drugs in violation of ORS 167.207 and received concurrent sentences of five years' imprisonment. The indictment read:

'COUNT I

'* * * LARRY RALPH MILLER on * * * the 19th day of August, 1972 * * * acting together in pursuance of a common intent with Kay Frances Yarbrough, did knowingly and unlawfully transport the dangerous drug methamphetamine in a 1965 Ford automobile on Highway 101, Florence, Oregon * * *

COUNT II

and as part of the same act and transaction set out in Count I herein * * * Larry Ralph Miller on or about the 19th day of August, 1972 * * * did knowingly and unlawfully possess the dangerous drug methamphetamine * * *.'

The pertinent portion of ORS 167.207 states:

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

On August 11, 1972, the defendant approached an informant working for the Lane Interagency Narcotics Team (LINT) and asked him to obtain a certain chemical used to make methamphetamine. The informant obtained the chemical from an officer assigned to LINT and furnished it to the defendant. The defendant and an accomplice proceeded to manufacture a quantity of the drug methamphetamine. The informant continued to provide the LINT team with information, and on August 19, at 10 p.m., the informant again contacted the LINT officer and notified him that the defendant and his accomplice were about to leave Florence, Oregon, and go to Eugene in an automobile with some methamphetamine they had just manufactured. The informant gave the officer a complete description of the car in question.

In response to this telephone call the car in which the defendant was a passenger was stopped by the police on the highway near Flornence; the defendant's accomplice was driving the car. The driver of the car consented to a search of her handbag. When suspected drugs were found, the defendant was placed under arrest and subjected to a pat-down search. This search produced a small bottle containing a syringe and needles. The driver of the car was also arrested at this time. The car was towed to the Florence Police Department and searched by the police. This search produced additional quantities of what was later proved to be drugs including methamphetamine as well as glassware, vials, tubing and other equipment. At a pretrial hearing, the defendant moved to suppress all evidence seized from his person, all evidence seized from the driver of the car as well as all evidence obtained from the seized automobile. The motion to suppress was denied by the trial judge.

Defendant makes two assignments of error: (1) that the motion to suppress should have been allowed for lack of probable cause and lack of consent; and (2) that in any event, the facts disclose that the defendant was guilty of one, and not two crimes.

The first assignment of error does not warrant much discussion. As the above statement of facts discloses, there was ample probable cause to support the search of defendant, his accomplice and the automobile in which they were riding. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. McCoy, 249 Or. 160, 437 P.2d 734 (1968); State v. Keith, 2 Or.App. 133, 465 P.2d 724, Sup.Ct. review denied (1970).

Turning to the second assignment of error, it is important to note that neither the indictment nor the evidence offered by the state indicates other than that the state was relying upon the same drug to support both the charge of transportation and the charge of possession. Likewise, the court's instructions made it clear to the jury that it could rely upon the same drug to support both convictions.

While a legislative body may carve more than one crime out of a single act, Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), courts will not so interpret legislative enactments in the absence of indication of such intent on the part of the legislative body. State v. Welch, 96 Or.Adv.Sh. 631, 505 P.2d 910 (1973); State v. Meyer, Or.App., 96 Adv.Sh. 1311, 507 P.2d 824 (1973). The statute here in question, ORS 167.207, sets forth that a person may be guilty of the crime of criminal activity in drugs by one of nine different methods, i.e., manufacturing, cultivating, transporting, possessing, furnishing, prescribing, administering, dispensing or compounding. The maximum penalty for violation of ORS 167.207(1) is ten years' imprisonment. We find no evidence of legislative intent that a person carrying a dangerous drug in a car be thereby guilty of two violations of ORS 167.207(1), and therefore subject to 20 years in prison. We hold that under the facts of this case the defendant was guilty of one, and not two crimes.

The language in Welch is so closely on point that it bears repeating:

'* * * In Bell (Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955)), the Supreme Court of the United States...

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