After a jury trial, defendant was convicted of 53 offenses, including 41 counts of theft in the first degree, ORS 164.055; one count of theft in the second degree, ORS 164.045; seven counts of possession of a stolen vehicle, ORS 819.300; two counts of delivery of methamphetamine (a Schedule I controlled substance); ORS 475.840 (2009);
We first set forth the facts relating to defendant’s motions to suppress. In December 2007, a homeowner reported a burglary and the theft of his car.
On the morning of December 26, 2007, detectives Abel, Elmore, and Johnson of the Salem Police Department drove an unmarked police vehicle to defendant’s house. The house was in a rural area and located at the end of a gravel driveway. The detectives turned onto the driveway through an open metal gate that was located a short distance from the road. See photograph attached as Appendix 1. Further down the gravel driveway there were three signs. On a tree next to the driveway, there was a sign that read “PRIVATE PROPERTY,” and above it, a sign that read “10 M.P.H.” Near the tree, on a metal pipe, was a sign that read “PRIVATE PROPERTY.” See photograph attached
As he was walking through the house, Abel saw items that he suspected were stolen and asked for and received defendant’s permission to call in the serial numbers. None of thоse items had been reported stolen. Defendant and the detectives then agreed that the detectives would accompany defendant to his bank to see if his check for the car had cleared. As they were leaving the house through the garage, Abel noticed a four-wheeler, which defendant said belonged to his nephew. On the way to the bank, detectives called in the serial number for the four-wheeler and learned that it had been reported stolen.
When they arrived at the bank, detectives arrested defendant. Police subsequently sought and obtained two warrants to search defendant’s property. Execution of the search warrants resulted in the seizure of narcotics.
Defendant moved to suppress evidence seized subsequent to the warrantless entry of his property, contending that the “private property” sign and gate on the driveway manifested a clear intent to exclude visitors, including the police. See State v. Dixson/Digby,
Article I, section 9, of the Oregon Constitution provides:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be search, and the person or thing to be seized.”
The Oregon Constitution protects a person’s privacy interest in the curtilage of his or her residence; however, a person impliedly consents to visitors approaching the front door unless the person has “manifested an intent to forbid the intrusion of casual visitors onto the property.” Gabbard,
Defendant asserts that the combination of the gated driveway and the “PRIVATE PROPERTY” signs manifested his intent to exclude uninvited visitors. The state responds that, although the gate, which was open, and the private property sign may have been sufficient to signal to approaching visitors that they were no longer on a public road, they were not sufficient to warn visitors that they were not authorized to proceed. The state contends that a sign that identifies property as private does not, as a matter of law, manifest a clear intent to exclude casual visitors.
We agree with the state that, under the circumstances, defendant’s intent to exclude visitors from his property was not manifest. The state corrеctly notes that the posting of a sign indicating that property is private does not in and of itself suggest that visitors to the property are excluded. As we said in Gabbard, in order to exclude the casual visitor from approaching a residence, “a person must make a greater showing than that which would be required to exclude individuals who would use the property for their own purpose, such as hiking.”
The warrantless entry to defendant’s property was permissible. Thereafter, the officers entered the house with defendant’s consent.
Defendant was charged with possession of eight grams or more of methamphetamine (Count 54). Defendant’s third and fourth assignments of error relate to the charging of two additional possession offenses, possession of marijuana (Count 55) and possession of MDMA (Count 56), as commercial drug offenses (CDOs), based on defendant’s possession of “[eight] grams or more of methamphetamine.” ORS 475.900(l)(b)(K)(iii). Defendant contends that “the legislature never intended substantial quantities of one drug (methamphetamine) to enhance the sentence on possession of another substance (marijuana and MDMA).” According to defendant, a particular enhancement factor is only available for possession of the same controlled substance, but in a larger amount cannot be used to enhance other drug possession offenses. Defendant therefore argues that the trial court erred in denying his motion to strike the commercial drug offense factor of possession of eight grams or more of methamphetamine. We conclude that the trial court did not err.
As relevant, ORS 475.900(l)(b) provides that
“a possession, delivery or manufacture [offense] is a commercial drug offense * * * if it is accompanied by at least three of the following factors:
“(D) The offender was in possession of materials being used for the packaging of controlled substances such as scales, wrapping or foil, other than the material being used to contain the substance that is the subject of the offense;
“(F) The offender was in possession of stolen property;
“(K) The offender was in possession of controlled substances in an amount greater than:
“(i) Eight grams or more of a mixture or substance containing a detectable amount of heroin;
“(ii) Eight grams or more of a mixture or substance containing a detectable amount of cocaine;
“(in) Eight grams or more of a mixture or substancе containing a detectable amount of methamphetamine;
“(iv) Eight grams or more of a mixture or substance containing a detectable amount of hashish;
“(v) One hundred ten grams or more of a mixture or substance containing a detectable amount of marijuana[.]”
In Counts 55 and 56, the state charged defendant with possession of marijuana and possession of MDMA, respectively. Both counts were charged as CDOs, based on ORS 475.900(l)(b)(D), (F), and (K)(iii). Defendant challenges only the state’s reliance on the factor set forth in subsection (1 )(b)(K)(iii) — possession of eight grams or more of a mixture or substance containing a detectable amount of methamphetamine — to enhance the offenses of possession of marijuana and possession of MDMA.
The state responds that the statute plainly allows possession of any of the listed controlled substances in sufficient quantities to serve as enhancements for a possession offense. We agree. The trial court’s ruling is supported by a literal reading of the statute, which provides that the offense is enhanced if “[t]he offender was in possession of controlled substances in an amount greater than” the amount specified for each controlled substance. The controlled substance charged as a CDO need not be the same substance possessed in the enhancement amount. As we held in State v. Moore,
Defendant’s remaining assignments relate to merger of guilty verdicts and sentencing. In his fifth assignment of error, defendant contends that the trial court committed plain error by not merging the guilty verdict on Count 54 (possession of methamphetamine as a CDO), with the guilty verdict on Count 55 (possession of marijuana as a CDO), because both counts alleged the same facts— (1) methamphetamine possession in an amount greater than eight grams, (2) possession of stolen property, and (3) possession of materials used for packaging controlled substances. The only difference, defendant argues, is that Count 55 has the additional allegation of possession of marijuana. Although he did not make thе contention below, defendant now asserts that, as pleaded, the offense of possession of methamphetamine charged as a CDO is actually a lesser included of the offense of possession of marijuana charged as a CDO, and that the two guilty verdicts should merge. Defendant asks that
Error is plain if it is (1) an error of law; (2) that appears on the face of the record; and (3) that is obvious and not reasonably in dispute. State v. Gornick,
In determining whether convictions merge under ORS 161.067(1),
We have previously rejected the argument that defendant makes in his sixth assignment of error, that the trial court erred in rejecting his motion to withdraw from the jury’s consideration at sentencing the “harm greater than typical” enhancement factor, because it was not alleged in the indictment. As we held in State v. Sanchez,
In his seventh assignment, dеfendant asks that we review as plain error his unpreserved contention that the trial court erred in instructing the jury with regard to offender-specific enhancement facts at sentencing. Defendant’s unpreserved contention is not subject to plain error review. See State v. Guardipee,
OAR 213-008-0002(l)(b)(D) provides that a defendant is subject to a departure sentence if the evidence establishes the defendant’s “persistent involvement” in similar offenses. That factor may be cited when consecutive sentences are imposed “only if the persistent involvement in similar offenses * * * is unrelated to the current offense.” In his eighth assignment of error, defendant asks that we review as plain error the trial court’s failure to instruct the jury thаt, in considering the sentence enhancement factor of “persistent involvement,” the jury should limit itself to consideration of defendant’s prior convictions for misdemeanor theft and misdemeanor criminal mischief for which he had been sentenced before the trial in this proceeding had begun, and could not consider uncharged misconduct and offenses of which the jury had just found him guilty. Defendant did not ask for the instruction that he now proposes, and we therefore consider whеther it is subject to plain error review. See State v. Toth,
It is not obvious or reasonably beyond dispute that defendant’s proposed instruction would have been a correct statement
In his ninth assignment, defendant contends that the trial court committed plain error in not declaring a mistrial sua sponte when the prosecutor argued to the jury that it could find “persistent involvement” based on evidence that was not in the record.
persistent involvement the offenses with which defendant was charged in this proceeding. Further, as we have said, the jury could also consider evidence of previous conduct with which defendant was not charged and for which he was not convicted. The record was replete with evidence from which the jury could properly find that defendant was persistently involved in theft crimes and, because it was in the record, it was proper for the prosecutor to refer to that evidence in his argument to the jury at sentencing. It was not, howеver, proper for the prosecutor to argue that the jury could consider conduct that was not supported by evidence in the record, and, to the extent that the prosecutor’s comment suggested that, the comment was not permissible. The question is whether it was plain error for the trial court not to grant a mistrial sua sponte.
It is a rare circumstance where the trial court must grant a mistrial in the absence of an objection by the defendant during the prosecutor’s rebuttal аrgument to the jury. A trial court’s denial of a motion for mistrial based on a prosecutor’s improper argument to the jury is reviewed for an abuse of discretion, and a trial court abuses its discretion in denying a motion for mistrial when the prosecutor’s comments are so prejudicial as to deny the defendant a fair trial. State v. Cheney,
We reject without further discussion defendant’s tenth and eleventh assignments, in which he contends that the evidence was insufficient to support a finding of “persistent involvement,” and that an upward departure sentence was not supported by substantial and compelling reasons.
Eight of defendant’s convictions involved two thefts against each of four victims. In his twelfth through fifteenth assignments of error, defendant contends that the trial court erred in failing to merge the eight guilty verdicts into four convictions. The state concedes that defendant is entitled to a merger of guilty verdicts for thefts committed against the same person and that the trial court should have entered single convictions for counts of theft from the same victim, reducing by four defendant’s total convictions. We accept the state’s concession.
Remanded for resentencing and for entry of judgment merging Counts 18 and 19 into a single conviction of theft; merging Counts 20 and 21 into a single conviction of theft; merging Counts 33 and 34 into a single conviction of theft; merging Counts 38 and 39 into a single conviction of theft; otherwise affirmed.
APPENDIX 1
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APPENDIX 2
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Notes
ORS
MDMA is 3,4 — methylene dioxymethamphetamine, also colloquially known as “ecstasy.”
The car was a 2006 Nissan 350Z, which is a distinctive sports car.
We reject defendant’s contention, made in his pro se supplemental brief, that defendant’s consent to the detectives’ entry of the house was involuntary.
Defendаnt does not contend that the other factors charged by the state— possession of drug packaging materials and stolen property — did not apply.
In Moore, we addressed the issue in the context of a statutory predecessor to ORS 475.900.
ORS 161.067(1) provides:
“When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offеnses as there are statutory violations.”
In his argument on rebuttal regarding persistent involvement, the prosecutor argued:
“Now, you all saw the pictures and you heard all the testimony, and I — you can tell from the testimony and the pictures that there were other items of stolen property and other victims that weren’t mentioned in the trial, that we didn’t bring to court.
“Furthermore, you heard from Sergeant Albert about some numbers that the Salem PAID had compiled about how many items they had recovered and how many they had returned; and you may not remember the number, but after you add them up, Salem PAID returned approximately 677 items. And you might remember from Ms. Suver’s exhibit in closing, they returned about 302 items so that’s roughly half * * * the items they returned you heard about. So there was nearly twice that many in the total. And I would submit to you that those other items are clear indicators that the defendant was persistently involved in other similar activity — not related to the charges that you’ve already heard about.”
(Emphasis added.)