and Submitted September 16, 2016
County Circuit Court 14CR2264; Richard L. Barron, Judge.
B. Crowther, Deputy Public Defender, argued the cause for
appellant. With him on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Peenesh H. Shah, Assistant Attorney General, argued the cause
for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant appeals a judgment of conviction for
unlawful delivery of methamphetamine (Count 1), ORS 475.890,
and endangering the welfare of a minor (Count 4), ORS
163.575. Defendant raises six assignments of error. In
defendant's first assignment of error, he argues that the
trial court plainly erred by failing to acquit him, sua
sponte, on the count of endangering the welfare of a minor in
light of the Supreme Court's recent decision in State
v. Gonzalez-Valenzuela, 358 Or. 451, 365 P.3d 116
(2016). Defendant contends in his second through sixth
assignments of error that the trial court erred in denying
his discovery request for material related to a confidential
informant (CI). Defendant also asserts it was error for the
trial court to refuse to conduct in camera review of the
requested material or to place the requested material under
seal for appellate review.
The trial court did not plainly err by failing to sua sponte
acquit defendant for endangering the welfare of a minor
because a jury could "draw competing inferences from the
facts" as to whether defendant's residence
"qualifies as a 'place' where unlawful drug
activity is 'maintained or [289 Or.App. 704]
conducted.' " Gonzalez-Valenzuela, 358 Or
at 473 (quoting ORS 163.575(1)(b)). The trial court did not
err in denying defendant's discovery requests. The trial
court determined that defendant's discovery requests
risked revealing the CI's identity and, thus, the court
did not commit legal error in concluding that the OEC 510
privilege applied. Additionally, the trial court was not
required to order the state to disclose the identity of the
informant, review the requested information in camera, or
seal and preserve any record thereof for appellate review,
because the trial court was "satisfied that the
information was received from an informer reasonably believed
to be reliable or credible." OEC 510(4)(c).
Or.App. 705] TOOKEY, J.
appeals a judgment of conviction for unlawful delivery of
methamphetamine (Count 1), ORS 475.890, and endangering the
welfare of a minor (Count 4), ORS 163.575. Defendant raises
six assignments of error. For the reasons that follow, we
first assigns error to the trial court's failure to
acquit defendant, sua sponte, on the count of
endangering the welfare of a minor. We state the facts
relevant to that assignment "in a light most favorable
to the state." State v. Reynolds. 250 Or.App.
516, 518, 280 P.3d 1046, rev den, 352 Or. 666
(2012). Based on an affidavit submitted by Deputy Gil Datan,
a detective with the South Coast Interagency Narcotics Team
(SCINT), a magistrate issued a search warrant for
defendant's property. In that affidavit, Datan stated
that an unnamed "Cooperating Individual" (CI) was
reliable because, among other things, the CI "was
familiar with [defendant] and been present when [defendant]
recently had delivered a large amount of methamphetamine or
picked up money for methamphetamine, " and that the CI
"was present at a Coos Bay residence where [defendant]
had arrived and delivered at least three ounces of
methamphetamine to a known drug distributer."
Additionally, the CI had conducted a "controlled
buy" of methamphetamine at defendant's residence
that was recorded on a "body wire." The affidavit
also stated that the CI had no prior felony convictions and
was not on probation.
and members of SCINT executed the search warrant at
defendant's residence in Coos Bay. When Datan arrived,
defendant was not home, but defendant arrived back at his
residence as SCINT was executing the warrant. Defendant said
he would save Datan the trouble of searching his residence
and show Datan "what's in his bedroom." As
Datan entered defendant's bedroom, defendant pointed out
a small black camera case that contained syringes
"consistent with the types of syringes that you'd *
* * use to ingest methamphetamine." Datan also found a
pipe with methamphetamine residue on the bedroom floor that
would have been accessible to defendant's year-and-a-half
old child. Datan showed defendant "the large bag of
methamphetamine [that [289 Or.App. 706] had been] sitting on
top of the TV" when Datan arrived. The bag contained
approximately 27 grams, or 138 "user units" of
methamphetamine with an approximate street value of $2, 767.
defendant denied that the large bag of methamphetamine was
his, but then told Datan that it was for his personal use.
Because of the quantity of methamphetamine that Datan found,
Datan suspected that defendant was distributing
methamphetamine out of defendant's residence. Defendant
told Datan that he did not distribute methamphetamine, but
stated that he "could currently go and purchase a pound
of *** methamphetamine" from California. Then defendant
indicated that, on his last return trip from California, he
had brought back three-fourths of a pound of methamphetamine.
Defendant admitted that the methamphetamine that he had
purchased on that trip was not all for his personal use.
Defendant provided Datan with the name of one of his
"customers" and stated that he was supposed to
deliver a pound of methamphetamine to that particular
customer. Datan placed defendant under arrest and defendant
was subsequently indicted for delivery of methamphetamine
(Count 1), unlawful possession of methamphetamine (Count 2),
child neglect in the first degree (Count 3), endangering the
welfare of a minor (Count 4), and frequenting a place where
controlled substances are used (Count 5).
trial, after Datan testified about the execution of the
search warrant and his conversation with defendant, defendant
moved for judgment of acquittal on Count 1, delivery of
methamphetamine, and Count 3, first-degree child neglect.
After the state said that it would withdraw the count of
child neglect because it did not want to pull its witness out
of residential drug treatment, the court granted
defendant's motion for judgment of acquittal with respect
to Count 3 for first-degree child neglect. The court denied
defendant's motion for judgment of acquittal on Count 1,
delivery of methamphetamine, based on the inculpatory [289
Or.App. 707] statements that defendant had made to Datan and
the quantity of methamphetamine discovered during the search.
On its own motion, the court dismissed Count 5, frequenting a
place where controlled substances are used.
jury found defendant guilty of delivery of methamphetamine
(Count 1), unlawful possession of methamphetamine (Count 2),
and endangering the welfare of a minor (Count 4). At
sentencing, the court merged the guilty verdict on Count 2
with the guilty verdict on Count 1 into a single conviction
for delivery of methamphetamine and imposed a 24-month prison
sentence. Additionally, the court ...