Submitted on November 27, 2012.
Washington County Circuit Court C100316CR Steven L. Price, Judge.
Peter Gartlan, Chief Defender, and Anne Fujita Munsey, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Lysne, Assistant Attorney-in-Charge, filed the brief for respondent.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
Under ORS 163.575(1)(b), a "person commits the crime of endangering the welfare of a minor if the person knowingly * * * [p]ermits a person under 18 years of age to enter or remain in a place where unlawful activity involving controlled substances is maintained or conducted." Defendant was convicted of two counts of endangering the welfare of a minor in connection with an incident where she possessed controlled substances in her purse while riding in an automobile with her two children. Defendant appeals, assigning error to the trial court's denial of her motion for judgment of acquittal on those charges.
The issue presented by this case is whether defendant's possession, storage, concealment, or movement of controlled substances in the automobile constituted "maint[enance]" of or "conduct[ing]" "unlawful activity involving controlled substances" under the statute. We conclude that there was sufficient evidence that defendant's actions violated ORS 163.575(1)(b); the trial court therefore did not err in denying defendant's motion. Accordingly, we affirm the judgment of conviction.
The facts pertinent to defendant's actions in the automobile are few and undisputed. Defendant was a backseat passenger in a borrowed automobile that was stopped for a traffic violation. Defendant's 17-year-old daughter, B, was driving, and defendant's five-year-old daughter, D, was in the front passenger seat. The purpose of the trip was to drop off D and then B at their respective schools.
During the course of the traffic stop, defendant consented to a search of her purse. That search revealed drugs (methadone, methamphetamine, and heroin) classified as "controlled substances" under ORS 475.005(6). Defendant was subsequently charged by information with various drug-possession crimes and, as pertinent on appeal, with two counts of endangering the welfare of a minor under ORS 163.575(1)(b). She sought, without success, to suppress the evidence seized from her purse, arguing that the warrantless search was unjustified because her consent was the product of unlawful police conduct.
After a short bench trial, defendant contended in closing argument that she should be acquitted of the charges of endangering the welfare of a minor because "something more * * * than mere possession" of drugs is needed to establish the maintenance or conducting of "unlawful activity involving controlled substances" under ORS 163.575(1)(b). Defendant argued that "mere possession" of drugs is passive rather than active conduct and therefore does not constitute "unlawful activity." She further argued that the remaining provisions of ORS 163.575(1) define other types of endangerment of the welfare of a minor by describing active conduct--providing implicit support for her proffered construction of subsection (1)(b) of that statute.
The state rejoined that "mere possession is an activity. Possession is taking control of something, and having it with you when you're going somewhere is sufficient to prove that it's an activity." The trial court concluded that "transporting controlled substances in a purse from one place to another is an activity" and convicted defendant of both charges of endangering the welfare of a minor based on the presence of the two children in the automobile. Defendant appeals.
As noted, defendant assigns error to the trial court's denial of her motion for judgment of acquittal. "We review the denial of a motion for judgment of acquittal for errors of law, considering the facts and any reasonable inferences in the light most favorable to the state to determine whether any rational trier of fact could have found every element of the offense beyond a reasonable doubt." State v. Reeves, 250 Or.App. 294, 296, 280 P.3d 994, rev den, 352 Or 565 (2012).
Defendant argues that "the plain meaning of the word 'activity' is 'the quality or state of being active.' Webster's Third New Int'l Dictionary 22 (unabridged ed 2002). 'Active' in turn means 'characterized by action rather than by contemplation or speculation, ' or 'productive of action or movement.' Id." Defendant reiterates that her possession of controlled substances was passive rather than active conduct and, therefore, not an "activity involving controlled substances" under ORS 163.575(1)(b). She further reiterates that ...