State v. Presley

• Decision Date: 25 July 2001
• Parties: STATE of Oregon, Respondent, v. Eric Lee PRESLEY, Appellant.
• Court: Oregon Court of Appeals

28 P.3d 1238

175 Or. App. 439

STATE of Oregon, Respondent, v. Eric Lee PRESLEY, Appellant.

97-02-31562; A99770

Court of Appeals of Oregon.

Argued and Submitted December 23, 1999.

Decided July 25, 2001.

Irene B. Taylor, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.

Janet A. Klapstein, 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 EDMONDS, Presiding Judge, and DEITS, Chief Judge, and ARMSTRONG, Judge.

DEITS, C.J.

Defendant appeals from a judgment of conviction for one count each of possession of a controlled substance, ORS 475.992(4); delivery of a controlled substance, ORS 475.992(1); and delivery of a controlled substance within 1,000 feet of a school, ORS 475.999(1).¹ He contends that the trial court erred in denying his motion for judgment of acquittal on each of those three counts. We affirm.

We state the facts in the light most favorable to the state, the prevailing party below. E.g., State v. Tellez, 170 Or.App. 745, 747, 14 P.3d 78 (2000)

. In 1996, because of concerns about drug trafficking, Portland police conducted surveillance of a house at 2227 N.E. Killingsworth, which is located within 1,000 feet of Vernon Elementary School. During the surveillance, the police observed consistently high foot traffic to and from the house. On December 6, 1996, a police informant conducted a controlled buy of crack cocaine at the house. The police then obtained a search warrant, which was served at 10:30 p.m. on December 6. Upon entry, police seized more than 15 grams of crack cocaine, a scale, drug paraphernalia, and a loaded weapon. Several children, including defendant's six-month-old son, were in the house when the warrant was served. Three adults also were in the house when the warrant was served: Townsend, who had 12.5 grams of cocaine in his possession; Richards, who had.04 grams of cocaine in his possession; and Allen, defendant's girlfriend. Allen dropped a crack cocaine pipe during the execution of the warrant. The total amount of cocaine found was inconsistent with personal use.

The search warrant named defendant, but the police did not find him in the house when they executed the warrant. The police located defendant walking near the house shortly afterward, however, and brought him to the house. After reading defendant his Miranda rights, Officer Baldwin questioned defendant. Defendant told Baldwin that he had a $400-per-day crack cocaine habit and that he supported that habit by stealing cocaine from nearly all of the approximately 50 buyers who visited the house each day. Defendant also told Baldwin that he sold drugs for Townsend and Richards, the two men who were present in the house when the warrant was executed. During the search of the house, police discovered mail addressed to defendant at the 2227 N.E. Killingsworth address. After arresting defendant, the police discovered a crack cocaine pipe on his person, but no drugs.

The state charged defendant, as relevant to this appeal, as follows:

"The said defendant, ERIC LEE PRESLEY, on or between December 1, 1996 and December 6, 1996, in the County of Multnomah, State of Oregon, did unlawfully, intentionally and knowingly deliver cocaine, a controlled substance, listed in Schedule II[.]

"The state further alleges that the above-described delivery was for consideration.

"* * * * *

"The said defendant, ERIC LEE PRESLEY, on or between December 1, 1996 and December 6, 1996, in the County of Multnomah, State of Oregon, did unlawfully, intentionally and knowingly deliver cocaine, a schedule II controlled substance, within 1,000 feet of the real property comprising Vernon Elementary School[.]

"* * * * *

"The said defendant, ERIC LEE PRESLEY, on or between December 1, 1996 and December 6, 1996, in the County of Multnomah, State of Oregon, did unlawfully, intentionally and knowingly possess a controlled substance, to wit: cocaine, listed in Schedule II[.]"

During a trial to the court, after the close of the state's case, defendant moved for judgment of acquittal as to, inter alia, the three counts at issue in this appeal. Defendant argued that the state had put on no evidence that defendant engaged in any of the charged conduct within the dates alleged in the indictment. To the extent that defendant's own statement to Baldwin supported the charges, defendant argued that his statement had not been corroborated. The trial court denied defendant's motion.

Defendant assigns error to that ruling. He argues that the "decisive issue" is whether there was any evidence that he possessed, actually or constructively, any drugs within the time period alleged in the indictment. He contends that the time period alleged in the indictment was material in this case for three reasons: First, the state had tried to put on evidence of a controlled buy on the date that the warrant was executed, but, after defendant had objected to that evidence, the state conceded that the controlled buy did not form the basis for the conduct alleged in the indictment. Second, the state was put "on notice" by defendant's motion for judgment of acquittal and closing arguments that it had put on no evidence that defendant had engaged in the alleged conduct within the time period set out in the indictment. Third, because the indictment contained many similar counts, defendant contends that it was crucial for the state to put on evidence particular to each count, presumably including evidence related to the time period alleged in each count. Defendant contends that the state failed to put on sufficient evidence of possession or of the time period alleged in the indictment.

We review the denial of a motion for judgment of acquittal to determine whether any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. State v. Hurst, 147 Or.App. 385, 388, 936 P.2d 396 (1997), rev. den. 327 Or. 521, 971 P.2d 408 (1998). We view the evidence in the light most favorable to the state, accepting reasonable inferences and reasonable credibility choices that the factfinder could have made. State v. Walters, 311 Or. 80, 82, 804 P.2d 1164, cert. den. 501 U.S. 1209, 111 S.Ct. 2807, 115 L.Ed.2d 979 (1991). A defendant's statement, if corroborated by other evidence, can provide evidence of the elements of an offense. See State v. Lerch, 296 Or. 377, 394, 677 P.2d 678 (1984)

("[I]ndependent corroborating evidence may be used together with the confession to prove all elements of the crime * * *."). Evidence is sufficient to corroborate a defendant's statement if it is "enough evidence from which the jury may draw an inference that tends to establish or prove that a crime has been committed." Id. at 398, 677 P.2d 678 (footnote omitted).

We first address the issue concerning the time period set out in the indictment. Time is generally not an essential element of crimes when the statutes defining the crimes do not include a time requirement. State v. Long, 320 Or. 361, 369, 885 P.2d 696 (1994),cert. den. 514 U.S. 1087, 115 S.Ct. 1803, 131 L.Ed.2d 729 (1995); State v. Wimber, 315 Or. 103, 110, 843 P.2d 424 (1992). None of the statutes defining the crimes at issue here includes a time requirement. ORS 475.992(4) (possession); ORS 475.992(1) (delivery); ORS 475.999(1) (delivery within 1,000 feet of a school); see also State v. Morgan, 151 Or.App. 750,

754 & n. 5, 951 P.2d 187 (1997), rev. den. 327 Or. 82, 961 P.2d 216 (1998) (time not an essential element of delivery, possession, or manufacture of a controlled substance).

Defendant argues, nonetheless, that time was material in the circumstances of this case. First, he points to testimony the state sought to elicit from an informant who attempted to make a controlled buy from defendant on the day that the police executed the warrant. The state ultimately abandoned the attempt to have that evidence admitted, stating that that controlled buy was not the conduct that it would rely on to prove the counts now on appeal. However, as we explain below, the state presented adequate evidence of conduct to support each of the charges. That it could not rely on other evidence occurring on a particular day—evidence that also might have supported those same charges—does not make time a material element in this case.

Defendant also contends that, by his actions at trial, he put the state "on notice" that he considered time to be material. To the extent that defendant argues that the evidence that the state offered varied materially from the terms of the indictment, and that that variance should be considered fatal, we disagree. Where the variance between a nonmaterial allegation and the proof offered does not adversely affect the defense, the variance itself is nonmaterial. State v. Freeman, 127 Or.App. 640, 645, 873 P.2d 1107 (1994). Defendant...