Argued and submitted on June 06, 2013.
Linn County Circuit Court 08112364, Thomas McHill, Judge.
George W. Kelly argued the cause and filed the brief for appellant.
Patrick M. Ebbett, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Armstrong, Judge.
HASELTON, C. J.
Conviction on Count 5 for frequenting a place where controlled substances are used reversed; convictions on Counts 1 and 2 reversed and remanded with instructions to enter a judgment of conviction for one count of delivery of marijuana within 1, 000 feet of a school; remanded for resentencing; otherwise affirmed.
HASELTON, C. J.
Defendant, who was convicted of delivery of marijuana within 1, 000 feet of a school, ORS 475.862, delivery of marijuana for consideration, ORS 475.860(2), possession of a controlled substance, former ORS 475.840, renumbered as ORS 475.752, amended by Or Laws 2013, ch 591, § 3, and frequenting a place where controlled substances are used, ORS 167.222(1), appeals. He assigns error to the trial court's failure to merge the delivery convictions and the denial of his motion for judgment of acquittal on the frequenting charge. The state concedes error with respect to merger, and we agree with and accept that concession; accordingly, the only remaining issue on appeal is whether the court erred in denying defendant's motion for judgment of acquittal on the frequenting charge. We conclude that the trial court did so err. Accordingly, we reverse and remand defendant's conviction under ORS 167.222(1), remand for merger and resentencing, and otherwise affirm.
In reviewing the denial of a motion for judgment of acquittal, we view the facts in the light most favorable to the state to determine whether a rational trier of fact could find each element of the charged offense beyond a reasonable doubt. State v. Cervantes, 319 Or 121, 125, 873 P.2d 316 (1994).
Stated consistently with that standard, the facts material to the frequenting charge are as follows. Defendant and his girlfriend, Thaxton, lived together in a rental home in Albany where they had resided for five years. On November 25, 2008, Albany police officers executed a search warrant at defendant and Thaxton's residence. During that search, police found 18 tablets of Vicodin in a plastic bag taped behind a framed picture on the wall of the couple's living room. Defendant subsequently admitted that he possessed those pills illegally. There is no evidence in the record that Thaxton was aware of the Vicodin secreted behind the picture.
As noted, defendant was subsequently charged, inter alia, with both possession of the Vicodin and "frequenting" in violation of ORS 167.222(1). That statute provides:
"A person commits the offense of frequenting a place where controlled substances are used if the person keeps, maintains, frequents, or remains at a place, while knowingly permitting persons to use controlled substances in such place or to keep or sell them in violation of ORS 475.005 to 475.285 and 475.752 to 475.980."
At trial, the state argued that defendant was liable under ORS 167.222(1) because he "remain[ed]" in their shared residence while knowingly "permitting" Thaxton to "keep" the Vicodin pills in the home. That argument, in turn, was predicated, in part, on the premise that Thaxton had "kept" the Vicodin by constructively possessing the pills. ...