and submitted September 29, 2017
County Circuit Court 15CR18431; William A. Marshall, Judge.
Sherbo-Huggins, 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
J. Payne, Assistant Attorney General, argued the cause for
respondent. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
appeals a judgment of conviction for one count of unlawful
possession of methamphetamine (Count 1) and one count of
endangering the welfare of a minor (Count 2). At trial, the
state presented evidence that defendant's minor daughter
resided with defendant in his home and that defendant stored
a personal-use quantity of methamphetamine in his bedroom in
the home and smoked methamphetamine on a regular basis.
Defendant moved for a judgment of acquittal on Count 2, which
the trial court denied. On appeal, defendant challenges that
ruling. Held: The trial court erred when it denied
defendant's motion for judgment of acquittal. The state
failed to present evidence from which a reasonable factfinder
could, consistent with the standard announced in State v.
Gonzalez-Valenzuela, 358 Or 451, 365 P.3d 116 (2015),
conclude beyond a reasonable doubt that defendant's home
was a place where “unlawful activity involving
controlled substances is maintained or conducted, ” ORS
Or. 774] Conviction on Count 2 reversed; remanded for
resentencing; otherwise affirmed.
Or. 775] SHORR, J.
appeals a judgment of conviction for unlawful possession of
methamphetamine (Count 1), ORS 475.894 (2015), amended
by Or Laws 2017, ch 706, § 15, and endangering the
welfare of a minor (Count 2), ORS 163.575. Defendant assigns
error to the trial court's ruling denying his motion for
a judgment of acquittal on Count 2. As explained below, we
conclude that the court erred when it denied defendant's
motion. Accordingly, we reverse defendant's conviction on
Count 2 and remand for resentencing but otherwise
we are reviewing the denial of a motion for a judgment of
acquittal, we state the relevant facts in the light most
favorable to the state. State v. Reynolds, 250
Or.App. 516, 518, 280 P.3d 1046, rev den, 352 Or.
666 (2012). Douglas County police officers were responding to
a report of a disturbance involving shouting and gunshots on
a street outside a mobile home park when they encountered
defendant outside his mobile home. The officers were
concerned that defendant had been involved in the
disturbance. The officers requested to search defendant's
home for possible victims, suspects, or weapons related to
the reported disturbance. Defendant consented to the search.
Defendant told the officers that his daughter, an 11-year-old
child who resided in the home, was asleep inside. The
officers entered and searched the home. Defendant's
daughter was asleep on a couch in the living room. Inside
defendant's bedroom, the officers spotted what they
believed to be a pipe containing methamphetamine residue and
three empty "bindles, " small plastic bags
frequently used to store narcotics. The officers asked
defendant if he would unlock a large gun safe [290 Or. 776]
in the bedroom, and defendant consented. Inside the gun safe,
the officers saw a larger plastic bag containing a white
crystalline substance that the officers believed to be
meth-amphetamine, a pair of analog scales used for weighing
marijuana, and other pipes. When questioned by the officers,
defendant admitted to having methamphetamine in the safe in
his bedroom and that the empty "bindles" in his
bedroom had, at one point, contained methamphetamine as well.
Defendant admitted to smoking some of the methamphetamine
from the safe but claimed that it was "bad dope"
that "didn't get him high." He also told the
officers that he used methamphetamine "almost every day
if he can get it, " and that he had been "smoking
methamphetamine for two to three years." The officers
then arrested defendant. The state obtained an indictment
against defendant for one count of unlawful possession of
methamphetamine, ORS 475.894, and one count of endangering
the welfare of a minor, ORS 163.575, based on the allegation
that defendant's daughter was in the home concurrently
with defendant's possession and apparent use of
trial, the state presented evidence of the foregoing facts.
Defendant then moved for a judgment of acquittal on the
child-endangerment charge. Oregon's child-endangerment
statute prohibits, among other things, allowing a person
under the age of 18 to "enter or remain in a place where
unlawful activity involving controlled substances * * * is
maintained or conducted." ORS 163.575(1)(b). When making
his motion, defendant argued that the state failed to present
evidence that his home was a place where unlawful activity
involving a controlled substance was maintained or conducted.
The trial court concluded that, based on the evidence
presented, a jury could reasonably infer that defendant
violated the statute because there was evidence that
defendant's minor child resided in the house and that
defendant routinely used methamphetamine in the house. The
court then denied defendant's motion. ...