*1 27, 2007, 2, 2008 Argued September April and submitted reversed OREGON, STATE OF Plaintiff-Respondent,
v. MACK, WILLIAM EUGENE Defendant-Appellant.
Marion Circuit Court County
03C-52412, 04C-43462 (Control); A125332 A125333
Janet A. Assistant Hardy respondent. her were cause for With brief Attorney Mary Myers, General, Williams, H. Solicitor General. Presiding Judge, and Wollheim and Edmonds,
Before Judges. Sercombe,
EDMONDS, P. J. dissenting.
Sercombe, J.,
EDMONDS, P. J.
Defendant of conviction for appeals judgment 163.547(l)(a) (2001), in the first under ORS degree 708, ch 2.1 On he appeal, argues amended Or Laws § stipulated by parties the evidence based on facts insufficient to convict him under that statute. We legally agree reverse. jury,
At trial before the trial court and without a following to the facts: parties stipulated August 19,2003, “1. On ofinves- or about course [,] tigating a death the Keizer Police spoke Stephanie Miller [.] [S], son, [Miller’s
“2. Ms. Miller has a who also lived at residence]. years-old, age years
“3. [S]is under the of 16 Hold. “4. staying The defendant was with Ms. Miller at the *3 19, [,] August residence but left on 2003 and did not return. 19, began preparations August
“5. The Keizer Police pursuant [Miller’s residence] to search to a search it warrant. Authorities secured the residence until was day searched a or two later. they
“6. Ms. Miller prob- told the Keizer Police would ably drugs thought find in the residence because she William boyfriend, Mack, her in Eugene the defendant this case, dealing marijuana.
“7. Ms. Miller told the Keizer Police that Mr. Mack had belonged’ a room in the residence that to Mr. Mack. only permitted She said she was Mr. Mack was there. She to enter the room when allowed a few times to enter presence only without Mr. Mack’s to enter to feed his fish that were in that room. pleaded guilty charges possession a I controlled Defendant of Schedule shotgun arising possession unlawful of a short-barreled out of
substance and guilty charge delivery of a Schedule I same incident. He also was found of the only subject controlled The child conviction is the of defendant’s substance. appeal. recently
“8. Ms. Miller told the Keizer Police that until Recently the room was locked all the time. Mr. Mack had begun leaving the room unlocked. police they [Miller’s
“9. When the searched residence] They found the room unlocked. found in also indications Miller, room that it was used Mr. Mack and not Ms. such as of the defendant with photographs his friends and docu- belonging ments to him. in glass smoking
“10. Found the room were three pipes, appeared all of which to have used to smoke been scale, marijuana, digital a small a number of used zip baggies. baggies unused lock and vacuum seal The used appeared marijuana to contain in residue. Also found baggie marijuana room was a with in it. $13,000 currency
“11. The Keizer Police in also found in a in bags box the room. Also the box were vacuum seal marijuana with residue in them and drug transaction records. gym bag
“12. In a in the room the Keizer Police found an stating [M]s. undated handwritten note from Miller to Mr. Mack you sweetest,
T love so much! You are the coolest you gonna party dealer the world. So are come Love, Stefani, tonight my your house? love.’Also in the room was a with 1440 box rounds of 7.62 ammunition. garage
“13. In the a top opening residence was top was, items, freezer. On of the freezer among other a garbage small can. In plastic garbage can were mari- juana leaves, shotgun stems and an unloaded sawed off (New NG454989), England firearms, serial number paper bag containing smoking pipe marijuana and a a with bags residue. The were vacuum sealed in ‘Food Saver’ vac- bags. uum top opening garage
“14. Found in the freezer in the gym bag. bag the residence was black were two Contained *4 bag- baggies marijuana. weight of The net of one gie grams. weight baggie was 54.0 The net of the other grams. 109.1 May 27, gym bag receipt
“15. Also in the was a dated Cozy for the Cove Inn for William Mack. weight marijuana “16. The net of the found in ‘Mr. grams. weight room’ was 8.9 net of Mack’s marijuana total weighed grams. found and as listed is 172 police “17. The found a ‘Food Saver’ vacuum seal machine on the kitchen sitting counter of the residence. August 21, 2003,
“18. On Miller Stephanie told Keizer ‘probably Police that Mr. Mack was told She selling drugs.’ also people [Miller’s the Keizer Police that Mr. Mack had residence] all the time and places he sometimes went she go. was not allowed to
“19. No shotgun shells for the were found. Much given
“20. later the Keizer Police were a rifle said to have been found in the attic of the residence that the ammunition rounds found ‘Mr. Mack’s room’ was com- patible with.
“21. Detectives familiar with the distribution of con- trolled opinion substances are of the quantity found, drugs records, the transaction the packaging mate- rials and the cash were delivery consistent with the ofmari- juana profit.” for
(Boldface in original.)
After the
record
evidentiary
closed,
did not move for a
a
judgment
acquittal as means to chal
lenge
legal
However,
evidence.
such a
motion is not necessary so
as a defendant
long
clearly raises
the issue in closing argument. State v. Forrester, 203 Or App
(2006).
151, 155,
(2005),
In order to frame that issue appropriately, we begin 163.547(l)(a) by setting out the elements of ORS (2001), the statute in effect at the time defendant committed the predi- cate conduct. It provided, part, “Aperson having custody or under 16
years age commits the crime of child in the first degree child, if the person knowingly leaves the or allows stay: the child to
it* * * * *
124 “(B) proximity premises On the immediate criminally or are delivered
where controlled substances profit].]” manufactured for consideration 163.547(l)(a)(B) added.) (2001), (Emphases Thus, under ORS (1) required prove defendant had “cus- the state tody (2) S; that defendant allowed S “to or control” over (3) stay”; and in the immediate where on Only manufactured. substances were delivered or controlled two are at issue here. the first elements appeal, argues that the trial court
On defendant first-degree convicting him because erred in prove he or control” over did not had prove argues that the failed to is, That defendant state to S. required prove it under ORS the first element that was 163.547(l)(a)(B) (2001). appeal responds that defendant’s claim on The state unpreserved: “[Defendant] that he contends that the state did not ‘custody the child victim. Defendant did had or control’of preserve therefore, and, this court not that claim below stipu- Below,in it on its merits. this should not consider lated argued court, that the facts trial to the respect. proof insufficient, in a different state’s but argued prove that he There, he that the state had failed to stay’ [ed] the home where defen- had ‘allow the child to living brother, victim, his and their dant was with the allowedto alter his claim mother. Defendant shouldnot be appeal.” on explained that, in the cir- below, we conclude
For the reasons argu- stipulated-facts trial, defendant’s cumstances of this preserved on claim of error that he raises ment below appeal. 5.45(1) claimed as error that “nomatter
ORAP states appeal the claimed error was on unless will be considered guided inquiry preserved in Our is therefore the lower court.” provision. interpreted Preservation law that has case ultimately depends appellate purposes review for expla party provided an the trial court with has whether enough specific the court can to ensure that nation that is identify Wyatt, alleged 343, 15 335, 331 Or error, State v. its
125 (2000), case-by-case P3d 22 and must be decided on a basis. endeavor, To assist in that Court has distin Supreme court, of an issue” in the trial guished “raising between which is the identification of a source of law always required, essential, for a claimed which is and the position, making less of a argument, which is least essential particular compli Hitz, ance with the doctrine. State v. 183, 188-89, 307 Or (1988). P2d 373 where the broad has Accordingly, legal issue court, been identified to the trial be adequately issue will Gadda, appeal. Gadda v. deemed for preserved purposes (2006). 7, 136 Or P3d 1099 In light of the above *6 we turn the legal principles, record in this case. Count 5 of the indictment alleges defendant 8/19/03,
“on or between County, 6/18/03 and in Marion Oregon, having custody [S,] and control of a child under 16 years age, did then unlawfully, feloniously, and there knowingly stay allow the child to in the and in the immediate where controlled substances were being criminally delivered for profit.” consideration or Just before defense counsel addressed the in court closing argument, the prosecutor court, told the
“Moving neglect [charge], [to] the child the elements that prove basically [d] must be are the defendant was involved in a controlled enterprise profit substance for allowed a child to Well, again, remain the home. it’s— there’s no issue that a child residing operation was also this home maintained, least, where he the of his con- trolled enterprise.” substance
Defense counsel responded: you if
“Finally, agree with the state that the children are in the immediate proximity delivery, of the the other thing prove the state has to that [defendant] is has allowed the children to be there. The child is not [defendant’s] child. coming backwards, [The is] sort of at it but this is not any way in any say: the statute. He doesn’t have control to here[,] young [‘]Youcan’t be It’s [S].[’] not his child. The belongs child to [S’smother].
‘Yes, could, elsewhere; [defendant] if he his stored stuff if he it says but stores else—I mean the statute he has to being doing there. And him there and allowthe child be doing when he doesn’t have what the state claims he’s you enough be, will, over the childto if excludethe allowing in the—he’snot child means he—he’snot allowed ability there; do.” childto be it’snot under his appeal, argues that above, on
As noted any authority had “there was no evidencethat defendant parent, and the child. Defendant was not the child’s over there was no evidencethat he ever servedas the child’scus- temporary had todian, even on a basis. Becausedefendant by right duty child, trial erred no to controlthe court neglect.” convicting first-degree him deciding preservation defense issue, In we must consider and the in the context of the indictment counsel’s argument. principles preservation prosecutor’s Here, the addressed the fact that are satisfied because defense counsel allegation ignored prosecutor had or control” in the indictment. counsel relevant statement that defense first thing argument was, “the other
made to the court in his [defendant] the chil- has allowed state has to isolation, the statement there.” Considered in dren to be only appear refer to the second element could offense, stipulated facts and taken in the context of but argued, prosecutor a different con- had it takes on what the by made defense notation, as evidenced statements *7 “[t]he continued, child is it Defense counsel counsel thereafter. coming childly [The is] sort of at back- not defendant’s way any in the He doesn’t have this is not statute. wards, but young [S].[’] say [‘]You any It’s not [,] here[,] can’t be control to (Emphases [S’s mother].” belongs The child to his child. added.) responded to the words, defense counsel In other prosecutor’s ofthe offense address the first element failure to person by pointing tody cus- a who has that defendant is not out alleges and as child as the indictment control over the or 163.547(l)(a) (2001) prove. required the state OHS portion counsel remarks, defense In the second ofhis enough con- “doesn’thave to assert that defendant continued * * * he’s not exclude the child the child to trol over ability allowing his to do there; it’s not under the child to be
127 added.) (Emphases of the context facts, When understood so.” the only stipulated argument prosecutor’s and the the by repeated that drawn from the references conclusion can be parent fact is not S’s presence counsel to the that defendant defense and had no authority ability on the control S’s or purported referring to the absence is that he was allegation any stipulated defen- the that fact that addressed alleged during custody over the dates dant had or control S reject argument Consequently, the state’s the indictment. we the evidence to demon- that the issue of the custody was not that defendant had over S strate adequately preserved.2 preserved
Having
defendant
his
established that
response
error,
the
In
defen
claim of
dant’s
we turn to
merits.
argument,
rely
insufficiency
state,
of the evidence
the
(1998),
ing
App
Reiland,
on State v.
153 Or
In Reiland, the defendant from a endangering on four conviction counts the welfare of a argued appeal minor and that those convictions should merge first-degree with her on four convictions counts neglect. agreed argument, child We with defendant’s reasoning, argues neglectprohibitionagainst “Thestate that the child allowing stay place drugs a child to in a are where sold or requires proof person authority
used that the has over the endangerment prohibition against child, while the child permitting requires proof That is a distinctionwithout a person a childto remain authority place. has overthe place drugs being difference.The ownerofa where are sold authority by person’s or used has overthe child virtue of ownership place,just authority as others have over positions parent, guardian, the child virtue of their as public Contrary argument, teacher, or official. to the state’s person custody certainly with of a and control does authority prohibit remaining have the the childfrom in a place, notwithstanding person the fact that the has no authority place.” overthe App 153 Or at 604-05. stipulated
It can be inferred from the facts in this case that defendant control over his room exercised because generally kept ordinarily he it because locked and Miller permitted only to enter the room when defendant was there. alleges stay But the indictment that defendant allowed S “to proximity” and in the immediate of where drugs being argu- Morever, were sold. the focus of the state’s appeal solely drugs ment below and on is not on the that were drugs found in room, defendant’s but rather on the and con- throughout garage. traband found the residence and the As pointed court, defense counsel out to trial defendant had authority being present no to exclude S from Miller’s resi- inappli- explanation dence. It that our follows Reiland case, cable to the facts in this S’s where defendant was neither authority nor did he exclude S custodian, have from Miller’s residence. As another observation.
That conclusion leads to allega- only on the contested issue based above, the stated stipulated facts was whether tions in the indictment *9 S the the of while could control whereabouts premises. If defendant were vested the occurred on activities premises, that he it would follow over the then with control prem- authority to the or allow S be on the to allow not had person authority control have to S’s But if he did not ises. premises, ability presence the then he to no control S’s had purposes of the of S for said have had control cannot be to of the the second elements words, In other first and statute. light stipulated case, in become facts this offense, in determining purposes of conflated into one element for first-degree allegations proved of child the the whether neglect.3 state stipulated there is no evidence facts Because stipulated that would or available inference from the facts an beyond permit find a reasonable a rational factfinder to person over or had that defendant exercised control S’s doubt authority it residence, to S from Miller fol- the exclude the of that the trial court erred when it convicted defendant lows first-degree neglect. child
Reversed. dissenting. J.,
SERCOMBE, respectfully disagree majority’s conclusion I the with proof of one element a crime— that a claim insufficient that defendant had by of of “custody preserved or of control” S—was prove objection differ- failed to defendant’s the state of the crime—that the defendant had “allowed ent element stay” drug enterprise. proximity [S] That in to the why prose- preservation the the of reason neither lack proceed- issue in the the trial court addressed the cutor nor objection ings of Because defendant’s the below. clearly proof the crime not the of this discrete element of conviction I of defendant’s raised, dissent from reversal insufficiency of the crime. evidence on that element for of issue, preservation above. also to the discussed That observation is relevant parties stip light the facts to which the In circumstances of this case—and of reasonably interpreted argument to cannot be the court ulated —defense counsel’s “custody had failed to or have excluded neglect. first-degree of child control” element 163.547(l)(a)(B) incident,
At the time of ORS provided: person having custody “A or of a child under 16
years age commits crime of child the first degree person knowingly child, if the leaves the allows stay:
‡ ‡ ‡ ‡ “(B) premises proximity On and in the immediate criminally where controlled substances are delivered or * * *[.]”1 manufactured for consideration requires proof “custody The statute both that defendant had knowingly [S] [S] [ed] or control” he left or “allow stay” [S] on the and in immediate drug activities. requirement or control” over the *10 part distinguishes neglect
child is of what the crime of child degree endangering in the first from crime of the welfare 163.575(1). respect proximity of a minor under ORS With to requires only person activities, to the latter crime that a “[p]ermit[ person years age ] a under 18 or to enter remain place activity involving ain where unlawful controlled sub- 163.575(l)(b). stances is maintained or conducted.” ORS first-degree neglect What the crime of B makes Class felony compared endanger- with the Class A misdemeanor ing required proof person of a welfare child the that a “custody have in control” of a child to addition evidence permitted stay drug prem- that the child was allowed or to on 163.547(l)(a)(B). ises. ORS argues argu-
The state that defendant confined his ment the trial to before court the contention that there was stay” [S] insufficient evidence show to that he “allowed to premises preserve he did not that appeal, specifically he makes on that there was insufficient stip- evidence that he had or control” over At the S. trial, ulated facts defendant’s counsel stated: 163.547(l)(a)(B) change ORS amended in to the word “on” “in or 2005 language to (B) upon” subparagraph add other not to Or to relevant this case. 708, 2.§ Laws ch * ** argue to going I’m not charge, the child “On meet not—don’t residence are happening things they do standard, I think because proximity immediate * * v *
“* * [j]f children are that the with the state y0U agree thing delivery, the other proximity of in the immediate allowed the has [defendant] is that has to the state * * * child. [defendant’s] not there. The child is child to be [child]. here You can’t be say: control to any have He doesn’t It’s not his child. “* * * child to be to allow the says he has [T]he statute claims doing what the state there and being And him there. over the enough control doesn’t have when he doing he’s not means he—he’s will, exclude the child be, you if child to there; it’s allowing the child be in the —he’s not allowed do.” ability under his not the state conceded the trial court proceedings,
In he child,” said that exclude the but “could not that defendant from drug enterprise and the exclude himself could with the agreed trial court the children. The household and a child allow knowingly “did and found the con- proximity in the immediate stay The trial corut [.]” materials and other trolled substances that, on to find went remove authority not have if did [defendant]
“even child was knew that the he premises, the child from the paraphernalia and other drugs that the there. He knew drugs par- and the failing remove the byAnd were there. the resi- child to be at thereby allowed the he aphernalia, controlled substances to where in close dence constructively delivered.” being were *11 court defendant, and the trial state, Thus, the to show was sufficient the evidence on whether focused below rather home, at the stay” to [S] “allow [ed] that defendant appeal, over S. On or control” “custody he had than whether the claim that the preserved whether defendant the issue is S. control” over “custody or to prove was insufficient evidence court in the trial issue not preserved an Generally, Meadows, Ailes v. Portland on appeal. considered will not be 132 (1991).
Inc.,
Or 376, 380,
312
823 P2d
Therefore,
956
a chal-
lenge
sufficiency
preserved
to the
of the evidence must be
to
appeal,
plain
be
on
considered
it is
unless
error. State v.
Paragon,
App
(2004);
195
265, 268,
Or
P3d
97
691
State v.
(2002).
App
Hockersmith, 181
554, 557-58,
Or
on which the state’s was insufficient” in preserve appeal). order to it for purposes preservation requirements imposed
The part judicial promote as review are to both fairness to the parties making arguments responding in and to asserted in a judicial Hoyt, case and efficient administration. v. Peiffer (2005). 5.45(1) Or 649,656,125 P3d ends, To these ORAP requirement preservation formalizes the of error in the Oregon appellate provides, part: courts and
“No appeal matter claimed as error will be considered on unless the claimed preserved error was court lower assigned opening as error the brief in accordance rule, provided may with this appellate the court con- apparent sider an error of law on the face of the record.” “specific In this case, defendant’s advancement aof * * * theory” the on of the evidence on “allow the stay” to element of the child crime was insufficient to “clearly challenge” sufficiency the on the evidence a differ- part element, ent or control” of the crime. Both prosecutor argu- defense their counsel focused * * * exclusively stay” ments “allow element. apart that, Defense counsel in fact stated from activity, thing “the has is that other parties’ [defendant] has be allowed child to there.” arguments perspectives court, at best, show different meaning stay” on the of the “allow element of the crime. Defendant the issue as one of functional con- viewed question presented S; trol over the actions of the state as *12 drug the enter- the location of of functional control over one theory prise. that he did advanced the But defendant never legal “custody sense of a over S in the have or control” not right duty regulate Instead, actions of S. defendant or to the argued S to do “control” to “allow” that he had insufficient joined parties anything. arguments the never on The “custody or control” issue. stipulated the were know,
For all that we facts solely prosecutor to set the and defense counsel framed the thought deciding to be for the core issue that both context stay prem- allowed S to on the material —whether defendant activity. proximity drug and in immediate of It would be ises unfair to the to make his contention allow defendant to doing, appeal, in so and, the first time on divest the state for arguments opportunity present topic to the to its that of differently. stipulated the trial court or to frame the facts solely presented The trial court viewed the issue as proximity defendant allowed S to remain in to whether The controlled substances activities. trial court found: Neglect Degree, 5, the First I “On Count Child guilty beyond [defendant] that of find reasonable doubt. that crime I find knowingly he did a child allow proximity immediate con- stay in to I trolled substances other materials that mentioned delivery in Count3.” that amounted to constructive added.) objected (Emphasis explicitly Had custody proof element of the on the agreed crime, and the trial court with had might objection, on the court have convicted defendant endangering a child. offense of the welfare of lesser included (verdict attempt included crime or ORS 136.465 where charge). silence inhibits administra- within Defendant’s regard. justice in that tion of majority recognizes never that defense counsel
explicitly argued insufficient to show that the evidence was major- “custody or under the statute. The the lack of control” argument implicit ity, however, that the contends preserved mentioned lack counsel twice because defense arguments
“control” in the context of about whether defen- * * * stay” [ed] [S] dant “allow activi- quite ties. It is true that both or control” and * * * stay” overlap- “allow elements ofthe crime could have ping proof persons about functional control ofthe child. Some with sufficient “control” over a child could be deemed to stay” [the child] drug operations. “allow near the potential, majority Because this concludes that defense counsel’s the evidence was insufficient to *13 * * * prove stay” the “allow element because “defendant * * * enough doesn’t have control over the child to exclude the argument child” also an that the evidence insuffi- cient to a lack of or control.” proof
But it is also true that ofthe different elements evidentiary person of this crime could have different A bases. obligations may necessarily with custodial to a child not * ** proximity [the child] stay” drug “allow activities. (which reasoning Indeed, if the of the trial court is correct we decide), person need not a with no control over a child could 163.547(l)(a)(B) by showing ORS violate a of custodial obli- gations proof to the child and that the defendant did not remove activities from their child. say argument proof Suffice it to that an a about failure of stay” the “allow element of because lack of control is necessarily argument proof “custody not an that there nois of or control.” acquittal judgment
A for a motion of is the best challenging sufficiency of method of the state’s evidence. challenge closing argu- We such allow a in defense counsel’s long clearly ment “as as a raises the issue clos- ing argument.” App v. Forrester, 151, 155, State 203 Or 125 (2006). (2005), argument closing P3d 141 A den, rev 341 Or insufficiency proof about the on one element of a crime does “clearly proof not an raise” of insufficient merely proof element, another because both elements overlap. could my appeal view,
In fails because he did defendant’s preserve not of the evidence contention that appeal. newly he now advances on Defendant’s articulated position rejoinder by permit meaningful is too late to including prosecutor court, full the trial consideration endangering for the lesser included offense conviction child. welfare of a reasons, I dissent.
For the above