State v. Rodriguez-Barrera

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Landau
• Citation: State v. Rodriguez-Barrera, 159 P.3d 1201, 213 Or. App. 56 (Or. App. 2007)
• Decision Date: 23 May 2007
• Docket Number: A125926.,04C44188.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Carlos Ivan RODRIGUEZ-BARRERA, Defendant-Appellant.

159 P.3d 1201

213 Or. App. 56

STATE of Oregon, Plaintiff-Respondent, v. Carlos Ivan RODRIGUEZ-BARRERA, Defendant-Appellant.

04C44188.

A125926.

Court of Appeals of Oregon.

Argued and Submitted February 28, 2007.

Decided May 23, 2007.

Brandon G. Williams, Deputy Public Defender, argued the cause for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief

Defender, Legal Services Division, Office of Public Defense Services.

Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

LANDAU, P.J.

Defendant appeals a judgment of conviction for, among other things, delivery of a Schedule II controlled substance within 1,000 feet of a school. ORS 475.904. He assigns error to the trial court's denial of a motion for a judgment of acquittal on that charge. According to defendant, the state failed to prove that he had intended drug activity to take place within 1,000 feet of a school. The state argues that the statutes that define the offense require no such proof. We agree with the state and affirm.

The relevant facts are not in dispute. Defendant was driving through Silverton when police officers observed him commit a traffic violation. The officers turned on their overhead lights and followed defendant until he stopped. By the time he stopped, the vehicle happened to be located 440 feet from a school. The lawfulness of the stop is not in dispute.

During the course of the stop, the officers learned that defendant's license was suspended. The officers prepared to have the vehicle towed. As defendant gathered his belongings from the car, the officers observed ammunition and a loaded weapon. At that point, the officers handcuffed defendant, read him Miranda warnings, and searched the vehicle. The officers found a glass pipe with drug residue and several small plastic bags containing a white powder that the officers believed to be methamphetamine packaged for sale. The lawfulness of the search is not in dispute, either.

Defendant was charged with, among other things, delivery of a Schedule II controlled substance within 1,000 feet of a school. The state's theory was that defendant was found within 1,000 feet of a school in possession of a sufficient quantity of drugs to indicate that he intended to deliver the drugs. At trial, he moved for a judgment of acquittal. He argued that the only reason that he was found in possession of the drugs within 1,000 feet of a school was that the police officers had directed him to stop his vehicle at that location. According to defendant, the state should be required to prove that he intended to conduct a drug transaction there. The trial court denied the motion.

On appeal, defendant reprises his contention that the law should be understood to require proof that he intended to engage in drug activity within 1,000 feet of a school. In support of that contention, defendant relies on legislative history that he contends demonstrates that the legislature was concerned with actual drug transactions near schools, not with "a motorist, fortuitously stopped by law enforcement within 1000 feet of a school zone, engaged in the constructive delivery of drugs with no indication that a delivery was aimed at the drug free zone or any students."

The state responds that defendant has ignored the wording of the relevant statutes, which require no proof that defendant intended to engage in a drug transaction within the requisite distance of a school. As for the legislative history, the state contends that the unambiguous wording of the statute forecloses resort to such extrinsic evidence of legislative intent and that, in any event, the history on which defendant relies concerns an earlier version of the law that has since been amended in material respects.

Thus framed, the dispute is one of statutory construction, concerning the intended meaning of the statutes that define the offense of which defendant was convicted. That dispute is resolved by reference to, and application of, familiar principles that require us to ascertain the intended meaning of the relevant statutes by reference to their wording in context and, if necessary, to legislative history and other interpretive aids. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993).

ORS 475.904(1) provides that, subject to exceptions not pertinent to this case, it is unlawful for any person to "manufacture or deliver a schedule I, II or III controlled substance within 1,000 feet of the real property comprising a public or private elementary, secondary or career school attended primarily by minors." The term "deliver" is one of art in the Criminal Code and refers to "the actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance whether or not there is an agency relationship." ORS 475.005(8). Possession of a controlled substance with intent to deliver it constitutes an "attempted transfer" within the meaning of the statute. State v. Miller, 196 Or.App. 354, 361, 103 P.3d 112 (2004), rev. den., 338 Or. 488, 113 P.3d 434 (2005). And possession of a controlled substance in a quantity that is inconsistent with personal use, when accompanied by possession of materials commonly associated with delivery, is sufficient to establish possession with intent to deliver the controlled substance. Id. at 361-62, 103 P.3d 112.

In this case, it is undisputed that defendant possessed a quantity of methamphetamine that is inconsistent with personal use. It is further undisputed that, taken with the packaging of the methamphetamine in small plastic bags, the evidence was sufficient to establish possession with intent to deliver, that is, an "attempted transfer" within the meaning of the statutory definition of "delivery" of a controlled substance. Finally, there is no dispute that defendant's possession of the methamphetamine with the intent to deliver occurred within 1,000 feet of a school. Thus, defendant "delivered" a controlled substance within 1,000 feet of a school.

Defendant nevertheless insists that the evidence was insufficient because there was no proof that he possessed the methamphetamine with intent to deliver it to a location within 1,000 feet of a school. The short answer to the argument is that the statute requires no such proof. Defendant, in fact, has identified no wording in the statute that supports his contention. His sole contention is that legislative history demonstrates that the legislature intended the relevant statutes to have more limited effect.

As we have noted, the state contends that, under the method of analysis required by PGE, we cannot even consider the legislative history, as defendant has not identified an ambiguity in the wording of the statutes. Defendant responds that his resort to legislative history is appropriate under ORS 174.020(1)(b), which provides that, "[t]o assist a court in its construction of a statute, a party may offer the legislative history of the statute."

The state is correct that, in PGE, the Supreme Court stated rather categorically that "[i]f, but only if, the intent of the legislature is not clear from the text and context inquiry the court will then move to the second level, which is to consider legislative history to inform the court's inquiry into legislative intent." 317 Or. at 611-12, 859 P.2d 1143 (emphasis added). Defendant, however, also is correct in noting that, in 2001, the legislature enacted amendments to ORS 174.020, so that the statute now provides that, apparently without the necessity of establishing an ambiguity, "a party may offer the legislative history of a statute." The statute then goes on to provide that "[a] court shall give the weight to the legislative history that the court considers appropriate." ORS 174.020(3).

It may be wondered whether the enactment of the amendments to ORS 174.020 actually altered the existing law in any significant way. Even before the enactment of those amendments parties were permitted to offer legislative history to the courts, and the courts were free to give that legislative history the weight that the courts thought appropriate.

The Supreme Court's response to the amendments to ORS 174.020 has been somewhat ambiguous. On occasion, the court has noted the existence of the amendments, but deferred determining their significance because of their delayed effective date. See, e.g., State v. Makuch/Riesterer, 340 Or. 658, 667 n. 6, 136 P.3d 35 (2006); Stevens v. Czerniak, 336 Or. 392, 403 n. 12, 84 P.3d 140 (2004).

In other cases, however, the court has, without reference to the amendments—and apparently after their effective date—continued to adhere to the rule of PGE that resort to legislative history is inappropriate in the absence of an ambiguity. See, e.g., Pacificorp Power Marketing v. Dept. of Rev., 340 Or. 204, 215, 131 P.3d 725 (2006) ("If the legislative intent is clear after reviewing the ordinary meaning of the text and context, then no further inquiry is necessary."); State ex rel Dept. of Human Services v. Rardin, 338 Or. 399, 407, 110 P.3d 580 (2005) ("If the legislature's intent is clear from the text and context of the statute, then further analysis is unnecessary."); Walsh Construction Co. v. Mutual of Enumclaw, 338 Or. 1, 10, 104 P.3d 1146 (2005) (because first-level analysis "demonstrates the legislature's intent conclusively, we determine that consideration of legislative history is unnecessary").

In still other cases, the court has, without reference to PGE or the statutory amendments, consulted legislative history without first addressing whether the statute in dispute is ambiguous. See, e.g., Roberts v. SAIF, 341 Or. 48, 53, 136 P.3d 1105 (2006) (after examining the text of a...