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State v. Robertson

Court of Appeals of Oregon

January 4, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
CLIFFORD ALLEN ROBERTSON, Defendant-Appellant.

          Argued and Submitted September 16, 2016

         Coos County Circuit Court 14CR2264; Richard L. Barron, Judge.

          Joshua 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 Services.

          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 General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case 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.

         Held: 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).

         [289 Or.App. 705] TOOKEY, J.

         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. For the reasons that follow, we affirm.

         Defendant 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.

         Datan 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.

         Initially, 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).[1]

         At 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.

         The 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 ...


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