Submitted June 18, 2014.
Marion County Circuit Court. 12C43096. Claudia M. Burton, Judge.
Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Edmonds, Senior Judge.
[267 Or.App. 687] HASELTON, C. J.
Defendant appeals a judgment of conviction for delivery of marijuana, ORS 475.860. He asserts that the trial court erred when it instructed the jury on the charge of delivery of a controlled substance because that instruction was an impermissible comment on the evidence in violation of ORCP 59 E and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. For the reasons that follow, we conclude that defendant failed to preserve the arguments that he now raises on appeal and, even assuming without deciding that any error was plain, we decline to exercise our discretion pursuant to Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991), to correct it in this case. Accordingly, we affirm.
The circumstances pertaining to defendant's conviction, as substantiated by the state's evidence at trial, are as follows. In April 2012, Officer Flowers stopped defendant for speeding on Highway 22 in Marion County. Ultimately, Flowers impounded the car, a Dodge Neon (Dodge), and another officer conducted a " quick inventory search." The inside of the car was " real dirty," but the officer did not discover anything unlawful. Flowers then called Rino Recovery and Towing to tow the Dodge, and the owner of the towing company, Rinerson, secured it in his impound building.
A couple of days later, Rinerson received several telephone calls from a man who wanted to retrieve his cell phone from inside the Dodge. Sometime after that, defendant asked his ex-girlfriend, Martin, if she wanted to come with him " to look at cars." Martin
reluctantly agreed, and they drove in her car to Salem. During the drive, defendant told Martin that " he had a large amount of marijuana in his [Dodge] and that he was going to sell it and make all this money[,] and he was going to help [her] out." Defendant then asked Martin to go to the tow lot as " his driver" and " pick up the car." Martin refused, and told defendant to get out of her car. Martin then drove away and called Rinerson at the tow company, telling him that there were " two or three pounds of marijuana" in the Dodge. Rinerson then called the police, and Officer Bird responded.
[267 Or.App. 688] At the tow lot, Rinerson told Bird that a woman had called and told him that there was possibly marijuana in the Dodge. Bird looked in the Dodge, but he could not see or smell any marijuana. Around that time, defendant arrived at the tow lot and told Rinerson that he wanted to get his cell phone out of the Dodge. Rinerson gave defendant the cell phone, but explained that he could not release the car to defendant without a licensed driver and the car's registration. Bird then asked defendant whether there was marijuana in the car. Defendant denied knowing anything about marijuana and, when Bird asked for consent to search the Dodge, defendant responded that " he didn't care, [and that] it wasn't his car." Defendant then left, and Bird searched the car. On the floorboard of the back seat underneath a pile of wet jeans, Bird discovered a white plastic grocery bag " that was full of marijuana buds and a couple of smaller Ziploc bags that had marijuana in them as well." Bird later testified that, in his experience, a typical user quantity of marijuana is less than an ounce. In total, the marijuana found in the Dodge weighed 13.4 ounces.
At trial, defendant's theory of the case was that the marijuana was not his. In his opening statement, defense counsel argued only that " there's no evidence that my client put the marijuana in the car." In his closing argument, defense counsel reiterated that " the bottom line is, it's not [defendant's] car. He borrow[ed] it from somebody else. And the bottom line is there's no evidence in the case whatsoever tying [defendant] to the marijuana in the car or delivery of marijuana * * *." Defense counsel reminded the jury that defendant had told the officer that the marijuana was not his. Finally, counsel read to the jury the instruction that " mere presence in the vehicle where the marijuana is found by a later search, ...