Submitted: September 27, 2013.
Grant County Circuit Court. 100494CR. W. D. Cramer, Jr., Judge.
Peter Gartlan, Chief Defender, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[260 Or.App. 742] EGAN, J.
Defendant appeals a judgment of conviction for unlawful delivery of a controlled substance within 1,000 feet of a school, ORS 475.904, and one count of unlawful delivery of a controlled substance, former ORS 475.840(1)(c) (2009), renumbered as 475.752(1)(c) (2011). Defendant asserts that the trial court erred by refusing to give his requested jury instruction and argues that the error was not harmless. The state concedes the error, but argues that, in light of the jury instructions that were given and the other evidence presented at trial, the error was harmless. We accept the state's concession that the trial court erred; however, we conclude that the trial court's error in refusing to give the corroboration instruction likely affected the jury's verdict. ORS 138.230. Accordingly, we reverse and remand.
We review the trial court's refusal to give a requested jury instruction for errors of law. State v. Worthington, 251 Or.App. 110, 113, 282 P.3d 24 (2012). In reviewing the trial court's refusal to give a requested instruction, we view the record in the light
most favorable to establishment of the facts necessary to require that instruction. State v. Black, 208 Or.App. 719, 721, 145 P.3d 367 (2006). In light of that standard, the facts are as follows.
Defendant had legitimate prescriptions for the pain medication Oxycontin. Defendant's nurse practitioner, LM, told him that she had a patient being treated for cancer who needed assistance obtaining hydrocodone for pain relief. Defendant agreed to allow LM to prescribe hydrocodone to him, and, in turn, defendant would provide those medications to LM for that patient's use. Unbeknownst to defendant, LM, who was addicted to hydrocodone, kept the medications for her own consumption.
Defendant was charged with 21 counts of delivery of controlled substances arising over a 10-month period in [260 Or.App. 743] 2009. Ten of the charges were dismissed because they related to defendant's legitimate prescription for Oxycontin. Defendant went to trial on the remaining charges relating to delivery of hydrocodone.
At defendant's trial, LM testified that she had prescribed hydrocodone to defendant between 2007 and late 2009. According to LM, she would perform medical services for defendant in exchange for hydrocodone. LM also testified about two specific instances in which she had allegedly received the prescription pills from defendant: once at a school book fair in September or October 2009 and again at a school volleyball game in October or November of 2009. LM stated that she had told defendant that she had lied about the cancer patient and disclosed her hydrocodone addiction to him in approximately September 2009. At that point, according to LM, defendant had agreed to continue to supply LM with pills to try to gradually wean her off of them.
During the testimony of the investigating officer, McKinley, the state played a tape recording of a telephone call between defendant and McKinley that occurred in mid-February 2010. In it, defendant stated that he and LM had never exchanged medical services for drugs. McKinley told defendant that his medical records were missing from LM's office and inquired several times as to whether he and LM had ever exchanged medical services for drugs. The two had the following exchange:
" MCKINLEY: How much do you think you've paid in the last year and a half?
" DEFENDANT: Uh, I haven't paid her anything.
" MCKINLEY: Well, I mean, paid for pills and then she reimbursed you.
" DEFENDANT: Oh, I'd imagine it was probably several thousand dollars.
" MCKINLEY: Okay. And I guess the reason I keep poking around the . . . If she was doing this in exchange for medical practices, uh, it just shows whether she's lying to me or not, too. 'Cause then she sent you a bill, I just find that amazing she sent you a bill, after what all I was told."
[260 Or.App. 744] Defendant told McKinley that he would purchase the drugs and deliver them to LM, usually once a month, but sometimes more often, and LM would reimburse him with cash. McKinley asked defendant, " When did you quit paying for [the drugs]?" Defendant responded, " Um, probably the last, probably the last year and a half." He told McKinley that LM had never told him about her drug addiction. Defendant stated that he would not deliver the pills to LM's office, but would arrange with LM to ...