State v. Villagomez

• Decision Date: 14 September 2016
• Docket Number: A156397
• Citation: 281 Or.App. 29,380 P.3d 1150
• Parties: State of Oregon, Plaintiff–Respondent, v. Jose Roberto Fierro Villagomez, Defendant–Appellant.
• Court: Oregon Court of Appeals

281 Or.App. 29

380 P.3d 1150

State of Oregon, Plaintiff–Respondent,

v.Jose Roberto Fierro Villagomez, Defendant–Appellant.

A156397

Court of Appeals of Oregon.

Argued and submitted January 27, 2016.

September 14, 2016

Larry R. Roloff, Eugene, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services.

Susan G. Howe, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

SERCOMBE

, P.J.

Following a jury trial, defendant was convicted of delivery of methamphetamine, ORS 475.890

, and possession of methamphetamine, ORS 475.894. Additionally, the jury found that the state had proved three “commercial drug offense” factors, allowing enhanced sentences for both of those convictions. See ORS 475.900(1)(b) (providing that, if a defendant is convicted of certain drug offenses, the crime seriousness category under the sentencing guidelines grid for those offenses shall be increased to 8, if the state proves three of the “commercial drug offense” factors listed in ORS 475.900(1)(b)(A) to (K) ).¹ Defendant assigns error to the trial court's denial of his motion for judgment of acquittal relating to one of those factors—that “[t]he delivery * * * was for consideration.” ORS 475.900(1)(b)(A)

. The state responds that there was sufficient evidence to prove that enhancement factor. We agree with defendant that the trial court erred in denying his motion for judgment of acquittal. Although we conclude the error was harmless with respect to the enhancement for the delivery charge because of a separate enhancement determination made by the jury, the denial of the motion was not harmless with regard to the enhancement for the possession charge. Accordingly, we reverse defendant's conviction for possession of methamphetamine and remand for entry of judgment of conviction without the commercial drug offense enhancement on that crime; remand for resentencing; and otherwise affirm.²

On review of the denial of a motion for judgment of acquittal, “we state the facts in the light most favorable to the state.” State v. Kaylor , 252 Or.App. 688, 690, 289 P.3d 290 (2012)

, rev. den. , 353 Or. 428, 299 P.3d 889 (2013). We then “determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the state proved all the essential elements of the offense,” including statutory sentencing enhancement factors, beyond a reasonable doubt. Id. at 691, 289 P.3d 290 ; see also ORS 136.785(2) ; State v. Skaggs , 239 Or.App. 13, 15, 244 P.3d 380 (2010).

In this case, law enforcement officers stopped defendant for a traffic violation. During the stop, the officers discovered 141.98 grams of methamphetamine divided into two bags under the front passenger seat of defendant's car and on the person of his passenger. A later patdown search of defendant revealed $4,080 in cash in his pocket. Defendant also had $315 in his wallet. The police further discovered a ledger and two cell phones in the car that contained information that police believed to be drug records.

Defendant was indicted for the charges of possession and delivery of methamphetamine. The indictment pleaded that each crime involved the same four commercial drug offense factors under ORS 475.900(1)(b)

: “[t]he delivery was for consideration,” ORS 475.900(1)(b)(A) ; “[t]he defendant[ ] [was] in possession of $300.00 or more in cash,” ORS 475.900(1)(b)(B) ; “[t]he defendant[ ] [was] in possession of drug records,” ORS 475.900(1)(b)(E) ; and “[t]he delivery involved a quantity of [a] controlled substance, consisting of eight grams or more of a mixture of substance containing [a] detectable amount of methamphetamine,” ORS 475.900(1)(b)(K)(iii). For the delivery charge, the state also pleaded that “the above-described delivery of methamphetamine involved substantial quantities of a controlled substance, consisting of 10 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers or salts of isomers.” ORS 475.900(1)(a)(C)

.³

At trial, the state's theory with respect to the delivery charge was that, although defendant had not completed a delivery of the drugs seized in the traffic stop, he was nevertheless guilty of delivery under an “attempted” delivery theory. See ORS 475.005(8)

(“ ‘Deliver’ or ‘delivery’ means the actual, constructive or attempted transfer * * * from one person to another of a controlled substance[.]”). In State v. Boyd , 92 Or.App. 51, 54, 756 P.2d 1276, rev. den. , 307 Or. 77, 763 P.2d 731 (1988), we held that the possession of an amount of drugs inconsistent with personal use, together with other indicia of drug trafficking, was sufficient to prove that the defendant took a “substantial step” towards the transfer of a controlled substance and had, therefore, attempted to deliver the drugs. See also

State v. Alvarez–Garcia , 212 Or.App. 663, 666, 159 P.3d 357 (2007) (“Possessing a controlled substance with the intent to transfer it may constitute a substantial step toward actually transferring it.”).

At the close of evidence, defendant moved for judgment of acquittal on the “for consideration” commercial drug offense factor in ORS 475.900(1)(b)(A)

. Defendant did not argue that the evidence was insufficient to show an attempted delivery. Instead, defendant asserted that the evidence was insufficient to prove that the attempted delivery was sufficiently commercial in character, because there was no proof that consideration for the delivery had been tendered or arranged. According to defendant, in order to prove that the attempted delivery of methamphetamine was “for consideration,” the state was required to show “real” or “actual” consideration, rather than “[pro]spective or possible or inferred consideration” from the evidence otherwise used to prove attempted delivery. Defendant explained that, in an attempted or constructive delivery case, the state could prove that the attempted or constructive delivery was for “actual consideration” by showing that “there's been some sort of an arrangement and there's a prospective buyer waiting in the wings just * * * that [the] connection hasn't been made yet.” However, defendant argued, there was no such “arrangement” shown in this case. Instead, there was “really a [pure] constructive delivery, and consequently, there is only constructive consideration,” which did not satisfy the “for consideration” commercial drug offense factor. The state responded that “constructive delivery is included in delivery and it's possession with intent to deliver, which includes possession with intent to deliver for consideration.” The state continued that, “in a constructive delivery case, the enhancement factor for consideration is appropriate.” The trial court denied the motion.

Defendant was subsequently found guilty by a jury and convicted of possession and delivery of methamphetamine. The jury also found that the state had proved three commercial drug offense factors on both the possession and delivery charges: (1) “the delivery * * * [was] for consideration,” (2) “the defendant [was] in possession of $300.00 or more in cash,” and (3) “the defendant [was] in possession of more than 8 grams of a mixture or substance containing a detectable amount of methamphetamine.” The jury found that the state failed to prove that defendant had possessed drug records. Additionally, with respect to the delivery charge, the jury found that the state had proved that defendant had possessed “substantial quantities of [a] controlled substance consisting of 10 grams or more of a mixture or substance containing a detectable amount of methamphetamine, methamphetamine salts, isomers or salts of isomers[.]”

Based on the jury's findings, the trial court imposed enhanced sentences under ORS 475.900(1)

for both convictions. For the delivery conviction, the trial court scored defendant's criminal history as I, determined that the crime category for the offense was 9, and imposed a 36–month sentence.⁴ For the possession conviction, the court scored defendant's criminal history as I, determined that the crime category for the offense was 8, and imposed an 18–month sentence. The court imposed the sentences concurrently.

On appeal, the parties dispute the meaning of the phrase “[t]he delivery * * * was for consideration” in ORS 475.900(1)(b)(A)

. According to defendant, that statute requires the state to prove that a constructive, attempted, or actual delivery be “for consideration,” that is, a “delivery of drugs in exchange for something bargained for and received by the person delivering the drugs.” In response, the state insists that no such exchange need occur because, consistent with ORS 475.005(8)

(providing that “delivery” includes “constructive” or “attempted” transfers of drugs) and Boyd, “delivery * * * for consideration” encompasses any attempted transfer where the defendant intends to transfer drugs for “money, goods, or services.”

We interpret the phrase “[t]he delivery * * * was for consideration” through an analysis of the text, context, and legislative history of ORS 475.900(1)(b)(A)

.⁵

State v. Gaines , 346 Or. 160, 171–72, 206 P.3d 1042 (2009). As noted, the legislature has defined the term “delivery,” as the term is “used in ORS 475.005 to 475.285 and 475.752 to 475.980,” to mean an “actual, constructive or attempted transfer * * * of a controlled substance.” ORS 475.005(8).

On the other hand, the legislature has not defined the meaning of “consideration” for purposes of ORS 475.900

. Because that term has a “well-defined legal meaning[,]” we presume that the legislature intended for it to carry that meaning. Dept. of Transportation v. Stallcup , 341 Or. 93, 99, 138 P.3d 9 (2006). The plain, legal...