Submitted October 16, 2013
Multnomah County Circuit Court No. 110833195, Kenneth R. Walker, Judge.
Convictions on Counts 1 and 2 reversed and remanded; remanded for resentencing; otherwise affirmed.
Peter Gartlan, Chief Defender, and Erica Herb, 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 Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[265 Or.App. 241] SERCOMBE, J.
Defendant appeals a judgment of conviction for unlawful delivery of cocaine within 1,000 feet of a school. He argues that the trial court erroneously admitted evidence that, two weeks after the charged conduct, he told his girlfriend that he wanted to sell crack cocaine. In defendant's view, that evidence about a possible sale of cocaine at some unspecified time in the future was irrelevant to show that, two weeks earlier, defendant intended to deliver the cocaine in his possession; the state counters that the evidence was relevant to show defendant's prior intent to deliver cocaine. As explained below, we conclude that it was error to admit
the evidence and that error likely affected the jury's verdict. Accordingly, we reverse and remand.
We begin with the background facts pertinent to our assessment of the admissibility of defendant's statement. On August 8, 2011, two police officers were on patrol in an area of Portland known for crack cocaine dealing. The officers saw defendant and two other people standing close together in a building entryway. As the officers pulled their patrol car to the curb next to the group, everyone began to walk away, and defendant tossed a plastic bag on the ground. The officers stopped defendant and the two others and discovered that the bag contained white rocks that they believed to be crack cocaine. They arrested defendant and found additional white rocks in defendant's pockets, along with $5 in cash. When asked about those items, defendant responded, " So? I'm a[ ] user." One of the individuals at the scene with defendant, Fleming, later testified that she was going to buy $10 worth of crack cocaine from defendant, but the police had arrived before they could finish the deal.
The state charged defendant with unlawful delivery of cocaine within 1,000 feet of a school, ORS 475.882, unlawful delivery of cocaine, ORS 475.880, and unlawful possession of cocaine, ORS 475.884. At trial, the state sought to admit a phone conversation between defendant and his [265 Or.App. 242] girlfriend that was recorded when she visited him in jail. During that conversation, defendant told his girlfriend, " I want to slang through him without him knowing it's me." As part of the state's offer of proof, an officer testified that, in the context of defendant's conversation, " slang" referred to selling crack cocaine. The state argued that, as a result, the conversation was relevant to defendant's intent. Defendant responded that the statement was not relevant, focusing on the facts that it was made two weeks after the charged conduct and related to future conduct:
" One last argument that I have, Your Honor, that occurred to me after my client pointed it out, our incident date is August 8th. [That] conversation[ ] was [August 21st] and it deals with ...