Argued and Submitted May 9, 2014
Lane County Circuit Court. 201122484. Mustafa T. Kasubhai, Judge.
Kenneth A. Kreuscher argued the cause for appellant. With him on the brief was Portland Law Collective, LLP.
Randy Allan Cook filed the supplemental brief pro se.
Susan G. Howe, Senior 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 Ortega, Presiding Judge, and DeVore, Judge, and Edmonds, Senior Judge.
[264 Or.App. 454] DEVORE, J.
Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine, ORS 475.890; unlawful possession of methamphetamine, ORS 475.894; interfering with a peace officer, ORS 162.247; and tampering with physical evidence, ORS 162.295. Defendant makes three assignments of error on appeal. First, he disputes the admission of hearsay evidence. Second, he contends that the hearsay evidence violates his confrontation rights under the Sixth Amendment of the United States Constitution. Third, he challenges the trial court's purported merger, " for sentencing purposes," of convictions for unlawful delivery of methamphetamine and unlawful possession of methamphetamine. See State v. Mason, 241 Or.App. 714, 718 n 4, 250 P.3d 976 (2011) (observing that " the phrase 'merged for sentencing purposes' is a misnomer and should never be used because it improperly conflates two distinct parts of the criminal process" ). The state concedes that the trial court erred in admitting the hearsay evidence but argues that the error was harmless. We conclude that the error was not harmless, and we reverse and remand on defendant's first assignment of
error. We need not address defendant's second and third assignments.
" [I]n our assessment of whether the erroneous admission of disputed evidence was harmless, we describe and review all pertinent portions of the record, not just those portions most favorable to the state." State v. Maiden, 222 Or.App. 9, 11, 191 P.3d 803 (2008), rev den, 345 Or. 618, 201 P.3d 909 (2009). We review to determine " the possible influence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial and compelling." State v. Davis, 336 Or. 19, 32, 77 P.3d 1111 (2003).
Defendant's convictions arose from a routine traffic stop. Defendant was driving, and his girlfriend, Buchanan, was in the passenger seat when Deputy Speldrich signaled defendant to pull over. Officer Thomsen arrived to assist Speldrich with the stop. Thomsen discovered that defendant [264 Or.App. 455] had a warrant for his arrest. Thomsen instructed defendant to get out of the car, but defendant refused. Defendant rolled up the car's windows. According to Speldrich, defendant took a plastic bag from his lap, containing what Speldrich believed to be methamphetamine, and gave it to his passenger, Buchanan. Buchanan stuffed the bag into her pants. When defendant and Buchanan refused to open the car window or door, Speldrich smashed the passenger-side window with his asp baton. They were then removed from the car and patted down.
During the officers' subsequent search of the car, Thomsen found a digital scale disguised as a cell phone, lithium batteries consistent with the batteries powering the scale, a wad of loose cash on the driver's side floorboard, some small empty plastic baggies, and a metal mint tin containing " cut," a substance used to bulk up a drug's volume before its sale. Defendant denied possessing any controlled substances and told Thomsen that he had only handed Buchanan money while in the car. A bag of methamphetamine, weighing 24.68 grams, was recovered from Buchanan at the jail.
Defendant was charged with unlawful delivery of methamphetamine, unlawful possession of methamphetamine, interfering with a peace officer, and tampering with physical evidence. At trial, defendant's theory of defense was that the methamphetamine belonged to Buchanan and that he had no knowledge of the drug. Defendant testified that Buchanan struggled with drug addiction, and, except for some " relapses," he had been drug-free for the past six years. Defendant described other items found in the car--the scale and small empty baggies--as Buchanan's jewelry-making things, but he did not ...