Appeal from Circuit Court, Coos County. James A. Norman, Judge. No. 7670.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Robert E. Brasch, District Attorney, Coquille, argued the cause and filed the brief for respondent.
Foley, Judge. Langtry, Presiding Judge, and Fort, Judge.
Defendant was convicted by jury trial of criminal activity in drugs, i.e., possession of over one ounce of marihuana, ORS 167.207, and received a two-year sentence.
Defendant makes four assignments of error. His first is that defendant was not shown to be in possession of marihuana. The record indicates that defendant, during the search of the home where defendant was resident, was sitting on a baggie of marihuana which he admitted was his. Possession of at least the marihuana contained in the baggie was thus conceded by defendant.
His second assignment is that there was insufficient proof of his possession of over one ounce of marihuana. Defendant claims that the evidence that the baggie on which he was sitting weighed over one ounce was insufficient, because, although the officer who testified about it had weighed it as 34 grams (28 grams make an ounce), the officer admitted that there was a small amount of stem material, which was not illegal, in the package. ORS 167.202 (1), 474.010 (13). The officer estimated this amount to be five grams, which, if the officer were accurate, would leave a balance of 29 grams of illegal marihuana in the baggie in question. He stated he had weighed marihuana 2,000 to 2,500 times and could reasonably accurately estimate weights of quantities of from one to 15 grams. The officer's estimate as to weight was clearly admissible and defendant's objection goes to the weight to be accorded it rather than its admission into evidence. The officer's testimony would support a finding of over one ounce. The quantity was thus a jury question and the jury found against the defendant.
For his third assignment defendant contends that the offense of criminal drug promotion should have been submitted to the jury as a lesser included offense. The indictment in this case charging possession did not charge the elements of the offense of criminal drug promotion, ORS 167.222,*fn1 so the latter is not a lesser included offense. ORS 136.660.*fn2
Defendant's final assignment is the denial of a motion for mistrial. Defendant objected to a statement made by counsel for the state during closing argument to the effect that the jury could infer from the evidence that "defendant was packaging marijuana and packaging it for probably no other reason than to sell it later."*fn3 The defendant objected and the objection was sustained. No request was made to the court to have the jury disregard the remark; in fact, nothing at all in this connection was done by defendant until after the jury had been instructed and had retired. Defense counsel then, after having taken exceptions to the instructions, moved for a mistrial on the basis of the "objectionable statement" made by counsel for the state during argument, as set forth above. The trial court denied the motion as not timely, pointing out that
if the motion had been proper and timely, the court could have ...