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State v. Samuel

Court of Appeals of Oregon

December 28, 2017

STATE OF OREGON, Plaintiff-Respondent,
SHANE DAVID SAMUEL, Defendant-Appellant.

          Argued and submitted August 19, 2015

         Lane County Circuit Court 201302201; Charles M. Zennaché, Judge.

          Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services. Shane David Samuel fled a supplemental brief pro se.

          David B. Thompson, Assistant Attorney General, fled the brief for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Duncan, Judge pro tempore. [*]

         [289 Or.App. 619] Case Summary:

         Defendant appeals a judgment of conviction for one count of felon in possession of a firearm (Count 5), ORS 166.270, among other crimes. Defendant seeks reversal of the felon-in-possession conviction, contending that the trial court erred by allowing the state to proceed on a different theory on Count 5 than the theory alleged in the indictment. Count 5 alleged that defendant had been previously convicted of a felony "within the past 15 years, " but, at trial, the state presented evidence that he had been convicted of delivery and possession of controlled substances in 1989 (approximately 30 years before the charged felon-in-possession offense). Held: The trial court erred when it failed to exclude the evidence of the 1989 convictions and when it denied defendant's motion for a judgment of acquittal on the felon-in-possession charge. The variance between the state's pleading and proof was impermissible because it required defendant to defend against a different theory than that specified in the indictment. Additionally, the state did not establish that the grand jury was presented with evidence of any other prior felony convictions and, therefore, failed to carry its burden of proving that the grand jury found the facts upon which the state tried its case.

         Conviction on Count 5 reversed; remanded for resentencing; otherwise affirmed.

         [289 Or.App. 620] DUNCAN, J. pro tempore

         In this criminal case, defendant appeals the trial court's judgment convicting him of, among other crimes, felon in possession of a firearm (Count 5), ORS 166.270. On appeal, defendant raises four assignments of error. We reject his first and second assignments without discussion, and we write only to address his third and fourth assignments, in which he asserts that the trial court erred in allowing the state to proceed on a different theory on Count 5 than the theory alleged in the indictment. For the reasons explained below, we agree with that assertion, reverse defendant's conviction on Count 5, and otherwise affirm.[1]


         In connection with a drug investigation, law enforcement officers executed a search warrant at defendant's house at around 8:45 a.m., on January 18, 2013. The officers observed a security camera near the front door and a "screen monitoring system" mounted on the living room wall, next to the entryway. The officers found six persons in the house: defendant and two women, Reed and Mahein, in the living room; Reed's four-year-old child, who was asleep in a chair in a bedroom adjacent to the living room; and two adults in the second story of the house. The officers also found an adult in a trailer behind the house.

         After the police entered the house, they gathered all of the adults in the living room, where an officer read them their Miranda rights and the search warrant. The warrant specified that the search was for evidence of unlawful delivery of methamphetamine and unlawful possession of methamphetamine and that defendant was the person suspected of the crimes.

         After the search warrant was read, an officer interviewed defendant in the bedroom where the child was sleeping, away from the other adults in the living room. When the officer asked defendant if there were any drugs in the [289 Or.App. 621] house, defendant said that there was a black bag in the living room with methamphetamine inside of it. The officer led defendant back to the living room, and defendant identified the bag, which was near where defendant had been sitting when the officers entered the house. Inside the black bag, an officer found a "freezer-style" bag containing a large quantity of methamphetamine and a baggie containing a smaller quantity of methamphetamine. Also inside the black bag, the officer found two scales, packaging materials, and a lock box containing vehicle titles and bills of sale and more than $7, 000 in cash. The cash included six $1, 000 bundles and two $500 bundles. At defendant's trial, an officer testified that a "user amount" of methamphetamine is usually one half of a gram or a gram. According to the state's evidence, the amount of methamphetamine in the freezer-style bag could sell for between $12, 360 and $15, 540, if sold in one-ounce units, or between $23, 363 and $29, 204, if sold in one-gram units.

         Also in the living room, the police found two firearms. One was next to defendant's wallet and near where defendant had been sitting. The other was in a toolbox.

         In defendant's bedroom, the police found a "large garbage-style bag" containing 28.78 grams of psilocybin mushrooms on defendant's bed. According to one of the officers, the amount of psilocybin mushrooms was not a "user amount." In defendant's dresser, the police also found a smaller bag of psilocybin mushrooms and a jewelry box containing a small piece of paper with letters and numbers on it, and an officer testified that the numbers were consistent with the sale prices for methamphetamine.

         Based on the evidence discovered during the execution of the search warrant, the state charged defendant with delivery and possession of methamphetamine, as commercial drug offenses (Counts 1 and 2); delivery and possession of a Schedule I controlled substance (psilocybin), as commercial drug offenses (Counts 3 and 4); felon in possession of a firearm (Count 5); endangering the welfare of a minor (Reed's child) (Count 6); and first-degree child neglect (of Reed's child, on an aiding-or-abetting theory) (Count 7).

         [289 Or.App. 622] Prior to trial, defendant filed a motion in limine to limit the state's evidence regarding the felon-in-possession charge. That charge alleged that, on or about January 18, 2013, defendant "did unlawfully and knowingly own, possess or use a firearm, * * * having been previously convicted of a felony * * * within the past l5years[.]" (Emphasis added.) ORS 166.270 defines the crime of felon in possession of a firearm and provides, in part:

"(1) Any person who has been convicted of a felony *** who owns or has in the person's possession or under the person's custody or control any firearm commits the crime ...

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