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State v. Newsted

Court of Appeals of Oregon

June 5, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
TROY GEORGE NEWSTED, Defendant-Appellant.

          Argued and submitted March 26, 2019 .

          Coos County Circuit Court 17CR32432 Megan Jacquot, Judge.

          Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine, ORS 475.890. He assigns error to the trial court's denial of his motion for judgment of acquittal, arguing that the evidence of the drug quantity and packaging was insufficient to support a delivery conviction. Held: The trial court did not err in denying defendant's motion. Defendant possessed 9.84 grams of methamphetamine, which testimony suggested was a quantity inconsistent with mere personal use. Further, the drug was distributed into seven packages containing commonly sold quantities. That evidence was suffcient to permit a factfnder to reasonably infer that defendant intended to transfer one or more of those packages.

         Affirmed.

          [297 Or.App. 849] DeVORE, J.

         Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine, ORS 475.890. He assigns error to the trial court's denial of his motion for a judgment of acquittal, arguing that the evidence of the quantity and packaging of the drug was insufficient to support a delivery conviction. We affirm.

         We state the facts in the light most favorable to the state when reviewing a denial of a motion for a judgment of acquittal. State v. Kaylor, 252 Or.App. 688, 690, 289 P.3d 290 (2012), rev den, 353 Or. 428 (2013). We determine whether "a rational trier of fact could have found that the state proved all the essential elements of the offense beyond a reasonable doubt." Id. at 691.

         Police suspected that defendant was driving with a suspended license. When he failed to signal as required for a turn, officers initiated a traffic stop. Before police made contact, a witness saw defendant throw a sunglasses case from his car into a parking lot. Sometime after the traffic stop, a witness gave police the sunglasses case. It contained two syringes, cotton swabs, and 9.84 grams of methamphetamine separated into seven baggies. Defendant was charged with possession of methamphetamine, ORS 475.894, and unlawful delivery of methamphetamine, ORS 475.890.

         Three police officers involved in defendant's arrest testified at trial, providing context for the amount and packaging of the methamphetamine found. They testified that the methamphetamine was "prepackaged" into seven baggies or "bindles." Five of the seven bindles contained a similar quantity, each within 0.2 grams of another: 1.83 grams, 1.76 grams, 1.87 grams, 1.80 grams, and 1.78 grams. Each was described as a "teener," generally understood as one-sixteenth of an ounce or 1.75 grams. Two bindles contained methamphetamine consistent with a "50-sack" quantity, generally understood as 0.5 grams: One contained 0.44 grams, and the other contained 0.36 grams. In addition, one empty or unused baggie was found without evidence of any drug.

         Captain Mitts, the Director of the South Coast Interagency Narcotics Team (SCINT), testified that he [297 Or.App. 850] trained in drug enforcement with the Drug Enforcement Administration (DEA) and the Oregon Narcotics Enforcement Association. He had handled 200 individual drug cases himself and participated in over 1, 000 drug investigations during his 22-year career. He said that the quantity of an "individual use" of methamphetamine can range from 0.10 to 0.5 grams, but 0.25 to 0.5 grams is the most common individual use.

         Speaking generally, Mitts testified that "[u]sers do not have ten grams on their person." He said that it is not typical for drug users to buy in bulk. That requires more cash, and users often lack gainful employment. He said that the nearly 10 grams that defendant possessed would "absolutely" be a "large number of individual uses." He said that "nine times out of ten," individual users, who are buying for themselves, are going to get one bag, such as a "teener or below." Based on his training and experience, Mitts concluded that the "overall quantity" of 9.84 grams of methamphetamine and "the ...


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