State v. Stewart

• Decision Date: 14 December 2016
• Docket Number: A160496
• Citation: 386 P.3d 688,282 Or.App. 845
• Parties: State of Oregon, Plaintiff-Respondent, v. Gregory Dandra Stewart, Defendant-Appellant.
• Court: Oregon Court of Appeals

282 Or.App. 845

386 P.3d 688

State of Oregon, Plaintiff-Respondent,

v.Gregory Dandra Stewart, Defendant-Appellant.

A160496

Court of Appeals of Oregon.

Argued and submitted September 28, 2016.

December 14, 2016

Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

GARRETT, J.

A jury convicted defendant of one count of unlawful delivery of methamphetamine for consideration, ORS 475.890 and ORS 475.900(2)(a), and one count of possession of methamphetamine, ORS 475.894. On appeal, defendant challenges only the delivery conviction, arguing that the trial court erred in denying his motion for judgment of acquittal as to the subcategory factor found in ORS 475.900(2)(a), which applies when the delivery in question "is for consideration." Relying on our recent decision in State v. Villagomez , 281 Or.App. 29, 36, 380 P.3d 1150 (2016), defendant argues that paragraph (2)(a) does not apply unless the state proves either that defendant completed a drug transaction or that defendant received or entered into an agreement to receive some benefit or detriment from another person.

In Villagomez , we held that the state failed to prove that a delivery "was for consideration" within the meaning of a different subsection of the same statute—ORS 475.900 (1)(b)(A) —because it did not show, at a minimum, that the defendant had entered into an agreement to receive consideration at the time he committed the delivery. In this case, the evidence shows, at most, that defendant attempted to complete a drug transaction, but there is no evidence in the record that he actually entered into an agreement to receive consideration or completed a drug transaction in exchange for consideration. Accordingly, if Villagomez controls, there is insufficient evidence to support the application of ORS 475.900(2)(a) to defendant's delivery conviction. The state contends that Villagomez does not control the interpretation of the phrase "is for consideration" in paragraph 2(a). For the reasons explained below, we agree with the state. We conclude that there was sufficient evidence to support a finding of guilt on the "for consideration" subfactor because there was evidence that defendant possessed methamphetamine with the intent to exchange it for money. Thus, the trial court did not err in denying defendant's motion for judgment of acquittal as to that subfactor. In a separate assignment of error, defendant argues that the trial court erred in imposing court-appointed attorney fees in the absence of evidence concerning defendant's financial resources. The state concedes that the trial court erred in that regard. We accept that concession and reverse the portion of the judgment requiring defendant to pay attorney fees.

When a trial court's denial of a defendant's motion for a judgment of acquittal depends on its interpretation of the statute defining the offense, we review the trial court's interpretation for legal error. State v. Hunt , 270 Or.App. 206, 210, 346 P.3d 1285 (2015). Then, viewing the facts in the light most favorable to the state, we determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Id. at 209, 346 P.3d 1285. We state the facts in accordance with that standard.

Defendant knocked on a woman's door between 2:00 a.m. and 3:00 a.m. The woman, Otto, mistook defendant for someone else and let him in. Otto soon realized that defendant was not who she thought he was, but she did not tell him to leave. They watched a movie and smoked marijuana. Defendant touched Otto on her leg and hips, and she grew uncomfortable.¹ At one point, defendant followed Otto into her bedroom, and she told him to leave the apartment. Defendant patted the bed and asked if he could stay until later that morning. Otto refused. Defendant said, "Well, I can give you some incentive and we can stay up." Otto refused again.

Defendant then asked for some sandwich bags, which Otto retrieved from the kitchen. Defendant said, "I'm going to do this here on your counter," but then stated, "Actually, I'm going to do this in your bathroom." Otto did not know what he was talking about. He then told Otto that he "needed to make some money." Otto saw defendant remove a bag from his pocket and then move into the bathroom. Defendant spilled a substance that "looked like Epsom salt" on the bathroom floor.

Shortly afterward, defendant asked Otto if he could borrow her phone to call for a ride. She agreed. Defendant then told Otto that she could have what was left of the substance that he had spilled on the bathroom counter and floor, but she responded that she did not want it. Defendant left, and Otto called 9-1-1. She reported to dispatch that defendant had spilled "white powdery stuff" in the bathroom and had asked her if she "wanted to buy some." She further reported that, when she said no, defendant asked, "Do you know anyone else who does?" and stated several times that he needed to "make some money."

Police responded to the call and stopped defendant near Otto's apartment. Defendant was arrested, and a search of his person revealed bags of methamphetamine. Police also found a black glove containing methamphetamine in the patrol vehicle in which defendant had been transported. The substance on Otto's floor was also determined to be methamphetamine. The total amount of methamphetamine collected at all of those locations was between three and four grams.

Defendant was charged with a number of offenses; the only charge at issue on appeal is Count 2, delivery of methamphetamine for consideration. At the close of the state's case, defendant moved for a judgment of acquittal on the ground that the state had not established the "for consideration" subfactor. The state countered that that subfactor was satisfied in two ways. First, the state pointed to evidence that, by sitting on the bed and offering Otto some "incentive," a rational trier of fact could find that defendant offered methamphetamine to Otto in exchange for sexual favors. Second, the state argued that, because defendant "was separating methamphetamine into multiple bags" and stated that he needed to "make some money," a rational trier of fact could find that defendant delivered methamphetamine "for consideration" by possessing methamphetamine with the intent to sell it. The trial court denied defendant's motion.

The jury convicted defendant of unlawful delivery of methamphetamine, ORS 475.890. The jury also found beyond a reasonable doubt that the "for consideration" subfactor under ORS 475.900(2)(a) applied to defendant's delivery conviction, elevating the offense's crime category from 4 to 6 in the sentencing guidelines grid.

On appeal, defendant does not dispute that the evidence is sufficient to prove that he violated ORS 475.890even though no transaction was consummated. That is so because, as defendant acknowledges, "delivery" for purposes of that statute is expressly defined to include the "actual, constructive, or attempted transfer" of a controlled substance from one person to another. ORS 475.005(8). Defendant concedes that there was sufficient evidence to prove that he attempted to transfer methamphetamine. See State v. Rodriguez – Barrera , 213 Or.App. 56, 59–60, 159 P.3d 1201, rev. den. , 343 Or. 224, 168 P.3d 1155 (2007) ("Possession of a controlled substance with intent to deliver it constitutes an attempted transfer within the meaning of [ORS 475.005(8) ]." (Internal quotation marks omitted.)).

Defendant argues, however, that the state presented insufficient evidence that that delivery "is for consideration" for purposes of the penalty enhancement under ORS 475.900(2)(a). Defendant argues that, although an attempted transfer is enough to prove "delivery," the legislature did not intend the enhanced penalty to apply absent proof of a completed transfer or a preexisting agreement to exchange drugs for consideration.² The state responds that defendant's argument is not supported by the statutory text or legislative history.

To resolve whether the trial court erred in denying defendant's motion, we must construe the meaning of the statutory phrase "is for consideration" as found in ORS 475.900(2)(a). We do so using the framework set forth in PGE v. Bureau of Labor and Industries , 317 Or. 606, 610–12, 859 P.2d 1143 (1993), as modified by State v. Gaines , 346 Or. 160, 171–73, 206 P.3d 1042 (2009). We first look to "the text and context of the statute, which are the best indications of the legislature's intent." State v. Walker , 356 Or. 4, 13, 333 P.3d 316 (2014). We also consider the statute's legislative history, and we give that history weight to the extent that it illuminates the statute's intended meaning. Id. ; Gaines , 346 Or. at 172, 206 P.3d 1042. If the statute's meaning is still unclear, we "may resort to general maxims of statutory construction." Walker , 356 Or. at 13, 333 P.3d 316.

First, we turn to the pertinent text. The legislature has not defined the phrase "is for consideration." When words lack a specialized meaning, we presume that the legislature intended those words to carry their ordinary meaning. DCBS v. Muliro , 359 Or. 736, 745–46, 380 P.3d 270 (2016) ; see also Jenkins v. Board of Parole , 356 Or. 186, 194, 335 P.3d 828 (2014) (noting that dictionary definitions are "useful" when the legislature has not defined the words comprising a disputed phrase). The word "is" is the simple present tense of the verb "to be." Webster's Third New Int'l Dictionary 189 (unabridged ed. 2002); The Chicago Manual of Style § 5.142, 183 (15th ed. 2003); see Kohring v. Ballard ,...