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State v. Stewart

Supreme Court of Oregon

March 22, 2018

STATE OF OREGON, Respondent on Review,
v.
GREGORY DANDRA STEWART, Petitioner on Review.

          Argued and submitted September 18, 2017

          On review from the Court of Appeals CC 15CR14797, CA A160496 [*]

          Kali Montague, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

          Andrew M. Lavin, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn, and Nelson, Justices, and Lagesen, Judge of Court of Appeals, Justice pro tempore. [**]

         [362 Or. 639] Case Summary:

         Defendant was charged with unlawful delivery of methamphetamine for consideration. Proof that a delivery "is for consideration" under ORS 475.900(2)(a) increases a defendant's crime category from a 4 to a 6 on the sentencing guidelines grid. At trial, the state presented evidence that defendant possessed methamphetamine with the intent to sell it and, after defendant made a motion for a judgment of acquittal, argued that that evidence was sufficient to prove that a delivery "is for consideration" under ORS 475.900(2)(a). The trial court denied defendant's motion. The Court of Appeals affirmed.

         Held:

         To prove that a delivery "is for consideration" under ORS 475.900(2)(a), the state is required to demonstrate a completed sale of the drugs or an agreement to sell them; evidence that a defendant possessed drugs with the intent to sell them is not sufficient. Thus, the trial court erred in denying defendant's motion for a judgment of acquittal.

         The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for resentencing.

         [362 Or. 640] WALTERS, J.

         In this criminal case, we conclude that, to prove that a delivery "is for consideration" under ORS 475.900 (2)(a) and that an enhanced sentence is therefore merited, the state is required to offer evidence that a defendant either entered into an agreement to sell or completed a sale of the specified drugs. Evidence that a defendant possessed the drugs with the intent to sell them is insufficient. We reverse the decision of the Court of Appeals, State v. Stewart, 282 Or.App. 845, 386 P.3d 688 (2016), [1] and remand the case for resentencing.

         Defendant knocked on a woman's door early one morning. The woman, Otto, thought that she recognized defendant and let him inside her apartment. Shortly thereafter, Otto realized that she had mistaken defendant for someone else, but she did not ask him to leave. Instead, the two sat on Otto's couch and smoked marijuana. Defendant made Otto uncomfortable and later followed Otto to her bedroom, prompting Otto to ask defendant to go. Defendant, while sitting on Otto's bed, patted it and asked if he could stay for a few hours. When Otto refused defendant's request, defendant said, "Well, I can give you some incentive and we can stay up." Otto again declined defendant's advance. Defendant then asked Otto for sandwich bags, and Otto retrieved some from the kitchen. Defendant commented that he "needed to make some money, " removed a bag from his pocket, and went into Otto's bathroom, where he spilled a substance that Otto thought looked like Epsom salt on the floor. When defendant finished in the bathroom, he used Otto's phone to call for a ride. Defendant told Otto that she could have whatever remained of the substance on her floor and left.

         Otto called 9-1-1. She reported that defendant spilled a "white, powdery substance" on her bathroom floor, asked if she or anyone that she knew wanted to "buy some" [362 Or. 641] of the substance, and stated several times that he "needed to make some money." Police responded to the call and located defendant near Otto's apartment. Police discovered small bags containing methamphetamine on defendant and arrested him. Police also determined that the substance on Otto's floor was ...


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