and submitted March 26, 2019 .
County Circuit Court 17CR32432 Megan Jacquot, Judge.
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
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.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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.
Or.App. 849] DeVORE, J.
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.
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.
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.
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.
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
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 ...