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State v. McMillin

Court of Appeals of Oregon

May 16, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DAVID LAIRD McMILLIN, Defendant-Appellant.

          Argued and Submitted June 29, 2015

          Lincoln County Circuit Court 121061; Paulette E. Sanders, Judge.

          Joshua B. Crowther, Chief Deputy Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

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

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge. [*]

          [291 Or.App.. 708] Case Summary: Defendant appeals a judgment of conviction for, among other things, two counts of delivery of marijuana to a minor. Defendant contends that the trial court erred by failing to merge the two counts of delivery of marijuana to a minor, arguing that, because he delivered the marijuana to two minors in a single criminal episode, and because the minors were not victims of the delivery crime, the anti-merger provision in ORS 161.067(2) does not apply. Defendant also contends that the trial court erred by failing to instruct the jury that the minors to whom defendant delivered marijuana were accomplice witnesses of the delivery crime, and, under ORS 136.440, he was entitled to an accomplice-witness instruction. Held: A minor receiving marijuana is the victim of the crime of delivery of marijuana to a minor, and, thus, ORS 161.067(2) prevented the merger of the two convictions involving the two minors. Because the minors were victims of the crime, the minors could not have been accomplices to the crime under ORS 161.165(1), and, thus, the trial court did not err by refusing to give defendant's requested accomplice-witness jury instruction.

         Affirmed.

          [291 Or.App. 709] ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction for two counts of delivery of marijuana to a minor, former ORS 475.860 (2011), [1] and one count of tampering with a witness, ORS 162.285, raising eight assignments of error. We reject the first three assignments-all of which relate to the trial court's denial of motions for judgment of acquittal- without written discussion. In his fourth assignment, defendant contends that the trial court erred by failing to merge the two convictions for delivery of marijuana to a minor, arguing that, because he delivered the marijuana to two minors in a single criminal episode, and because the minors were not the victims of the delivery crime, the anti-merger provision in ORS 161.067(2), set out at 291 Or.App. at 711, does not apply. The state contends, and we agree, that the trial court did not err, because a minor receiving marijuana is the victim of the crime of delivery of marijuana to a minor, and, thus, ORS 161.067(2) prevents the merger of the two convictions involving the two minors. Defendant contends in his last four assignments that the trial court erred by failing to instruct the jury that the minors to whom defendant delivered marijuana were accomplice witnesses of the delivery crime, and, under ORS 136.440, set out at 291 Or.App. at 718-19, he was entitled to an accomplice-witness instruction. Because we conclude that the minors were victims of the crime, the minors could not have been accomplices to the crime under ORS 161.165(1), set out at 291 Or.App. at 719, and, thus, the trial court did not err by refusing to give defendant's requested accomplice-witness jury instruction. Accordingly, we affirm.

         Defendant lived with his step-granddaughter, L, who was a minor. One evening, L had two friends, D and H, who also were minors, visit. Each of the three minors testified that defendant gave them marijuana, but each of them offered slightly differing accounts about how that had happened. D testified that defendant gave D and H marijuana while they were in L's room. According to D, defendant [291 Or.App. 710] handed the marijuana "through the doorway, and [H] got up and grabbed it from his hand, " and then D and H smoked it together. L testified that defendant handed marijuana and a pipe through L's bedroom door and D-not H-took it, and then D and H smoked marijuana together. However, H testified that "we got marijuana from [defendant]" and that only L and H smoked it. H did not testify as to how defendant had given them the marijuana.

         Months later, L told a police officer that defendant had given her and her friends marijuana on the earlier occasion. The state thereafter charged defendant with, among other things, two counts of delivery of marijuana to a minor under former ORS 475.860-one count for delivery to both D and H.

         At the close of the state's case, defendant moved to instruct the jury that the minors who received the marijuana were accomplice witnesses to defendant's delivery crime. He contended that two of the witnesses, D and H, were accomplice witnesses because there was testimony that each of them had received the marijuana from defendant and had given it to the other minor, which aided and abetted defendant's delivery. Similarly, defendant argued that, because there was testimony that L and H had smoked marijuana together, it was reasonable to infer that L had received the marijuana from defendant and had given it to H, and, thus, L was also an accomplice. In sum, he argued that, because there was evidence that each of the minors had aided and abetted the delivery of marijuana to the other minors, he was entitled to have the jury instructed on the legal principles that apply to accomplice witnesses. The trial court did not give the requested instruction, concluding that defendant's delivery was completed as soon as he gave the marijuana to the minors by handing it through the door or by giving it to L, and, because the only evidence presented of each witness aiding and abetting defendant's delivery involved conduct that occurred after the commission of the crime, none of the witnesses could have been accomplices. Ultimately, the jury convicted defendant of two counts of delivery of marijuana to a minor, former ORS 475.860(4)(a), among other crimes. At sentencing, defendant moved to merge the delivery convictions, arguing that the anti-merger [291 Or.App. 711] statute, ORS 161.067(2), did not apply because there was only one victim of the two counts of delivery of marijuana to a minor, viz., the state. The trial court denied defendant's motion and entered convictions on both delivery counts.

         Defendant appeals, assigning error to the trial court's denial of his motion to merge the convictions and to the trial court's refusal to instruct the jury that the three minor witnesses were accomplices to the delivery[2]

         We consider the merger issue first because that analysis informs our resolution of the instructional issue. We review for legal error whether the trial court erred in failing to merge the convictions. See, e.g., State v. Watkins, 236 Or.App. 339, 345, 236 P.3d 770, rev den, 349 Or. 480 (2010). The applicable anti-merger statute, ORS 161.067(2), provides that, "[w]hen the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims." Because defendant was convicted of two counts of delivery of marijuana to a minor for a single delivery, our task is to determine who is the victim of that crime.

         In State v. Glaspey, 337 Or. 558, 563, 100 P.3d 730 (2004), the Supreme Court established the analytical framework to determine, for purposes of ORS 161.067(2), who are the victims of a crime. There, the defendant was convicted of fourth-degree assault, which normally is a Class A misdemeanor. See ORS 163.160(2). However, fourth-degree assault becomes a Class C felony under specified circumstances, including when the

"assault is committed in the immediate presence of, or is witnessed by, the person's or the victim's minor child or stepchild or a minor child residing within the household of the person or victim."

         ORS 163.160(3)(a). The defendant in Glaspey had assaulted his wife in the presence of their two minor children. The defendant ultimately was convicted of two counts of fourth-degree assault, one count for each of the child witnesses. [291 Or.App. 712] The defendant moved to merge the two counts under ORS 161.067(2), arguing that there was only one victim of the crime, his wife. Both we and the trial court concluded that the child witnesses were victims of defendant's assault of his wife and, hence, that the two assault counts did not merge. The Supreme Court reversed, concluding that there was only one victim of the assault-defendant's wife-and that the trial court had erred by failing to merge the convictions.

         The court in Glaspey analyzed the underlying criminal statute defining the crime to determine for purposes of ORS 161.067(2) whom the legislature intended the victim of the crime to be. 337 Or. at 563. The court began with the text of the assault statute, which used the term "victim" to refer to "the person who is directly and physically injured by an assault, " but which did not use that term to refer to the child witnesses. Id. at 565. From that, the court reasoned that, had the legislature intended the child witnesses to be victims of the crime, it would not have structured the crime the way that it did, viz., by using the term "victim" to refer to the person assaulted but not using that term to refer to the child witnesses. Id. The court also analyzed other crimes as contextual support for its conclusion that the victim of the assault statute was "the person directly and physically injured by an assault." Id. The court compared the gravamen of the crime with that of other crimes in which the legislature had used the term "victim" in defining the crime. The court noted that, "[o]rdinarily, when the term 'victim' is used in a statute that defines a criminal offense, it is used in the precise sense of a ...


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