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State v. Rasberry

Court of Appeals of Oregon

July 12, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JACKIE ERWIN RASBERRY, II, Defendant-Appellant.

          Submitted October 29, 2015

         Coos County Circuit Court 11CR0410 Richard L. Barron, Judge.

          Peter Gartlan, Chief Defender, and Stephanie J. Hortsch, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Peenesh H. Shah, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

         Case Summary:

         Defendant appeals his conviction for delivery of a controlled substance (DCS) and the determination of his guilt for possession of a controlled substance (PCS). On appeal, he argues that the trial court erred by admitting evidence of text messages that police offcers found on a cell phone because those messages were inadmissible hearsay. While acknowledging and making no substantive argument against the applicability of the OEC 801(4)(b)(B) "adoptive admission" exception to the defnition of hearsay, defendant narrowly argues that the trial court did not admit the evidence as falling within that exception.

         Held:

         The trial court admitted the text messages as adoptive admissions under OEC 801(4)(b)(B). Accordingly, the sole argument that defendant makes on appeal does not present a basis for reversal.

         Affrmed.

         [286 Or.App. 686] HADLOCK, C. J.

         Defendant was found guilty of having committed multiple crimes, including possession of a controlled substance (PCS) and delivery of a controlled substance (DCS). Both the PCS charge and the DCS charge arose from a commercial transaction involving hydrocodone. On appeal, defendant challenges his conviction for DCS and the determination of guilt on the PCS charge, arguing that the trial court erred by admitting evidence of text messages that police officers found on a cell phone.[1] We affirm.

         The narcotics investigation that led to the charges against defendant began with a traffic stop of defendant's car in January 2011. Trooper Looney, who assisted another trooper during that stop, searched the car with defendant's consent. Looney found-inside a speaker box-bags of marijuana, a digital scale with marijuana residue, and empty sandwich bags. Defendant's phone "was ringing constantly" as Looney searched the car, "almost non stop, call after call after call."

         A few months later, Looney responded to the location of another traffic stop involving defendant; this time, the stopped vehicle was a pickup truck that defendant had been driving. Looney advised defendant that he was wanted on a warrant, handcuffed him, and advised him of his Miranda rights. Defendant consented to a search of the truck, but said that if Looney "found anything illegal, it's not his." On the driver's seat of the truck, Looney found a prescription pill bottle that contained two knotted baggies that were "consistent with packing for * * * illicit delivery." The name on the bottle was not defendant's. Later ...


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