A jury convicted defendant of one count of unlawful delivery of methamphetamine for consideration, ORS 475.890 and ORS 475.900(2)(a), and one count of possession of methamphetamine, ORS 475.894. On appeal, defendant challenges only the delivery conviction, arguing that the trial court erred in denying his motion for judgment of acquittal as to the subcategory factor found in ORS 475.900(2)(a), which applies when the delivery in question “is for consideration.” Relying on our recent decision in State v. Villagomez,
In Villagomez, we held that the state failed to prove that a delivery “was for consideration” within the meaning of a different subsection of the same statute—ORS 475.900 (l)(b)(A)—because it did not show, at a minimum, that the defendant had entered into an agreement to receive consideration at the time he committed the delivery. In this case, the evidence shows, at most, that defendant attempted to complete a drug transaction, but there is no evidence in the record that he actually entered into an agreement to receive consideration or completed a drug transaction in exchange for consideration. Accordingly, if Villagomez controls, there is insufficient evidence to support the application of ORS 475.900(2)(a) to defendant’s delivery conviction. The state contends that Villagomez does not control the interpretation of the phrase “is for consideration” in paragraph 2(a). For the reasons explained below, we agree with the state. We conclude that there was sufficient evidence to support a finding of guilt on the “for consideration” subfactor because there was evidence that defendant possessed methamphetamine with the intent to exchange it for money. Thus, the trial court did not err in denying defendant’s motion for judgment of acquittal as to that subfactor. In a separate assignment of error, defendant argues that the trial court erred in
When a trial court’s denial of a defendant’s motion for a judgment of acquittal depends on its interpretation оf the statute defining the offense, we review the trial court’s interpretation for legal error. State v. Hunt,
Defendant knocked on a woman’s door between 2:00 a.m. and 3:00 a.m. The woman, Otto, mistook defendant for someone else and let him in. Otto soon realized that defendant was not who she thought he was, but she did not tell him to leave. They watched a movie and smoked marijuana. Defendant touched Otto on her leg and hips, and she grew uncomfortable.
Defendant then asked for some sandwich bags, which Otto retrieved from the kitchen. Defendant said, “I’m going to do this here on your counter,” but then stated, “Actually, I’m going to do this in your bathroom.” Otto did not know what he was talking about. He then told Otto that he “needed to make some money.” Otto saw defendant remove a bag from his pocket and then move into the bathroom. Defendant spilled a substance that “looked like Epsom salt” on the bathroom floor.
Shortly afterward, defendant asked Otto if he could borrow her phone to call for a ride. She agreed. Defendant then told Otto that she could have what was left of the substance that he had spilled on the bathroom counter and floor, but she responded that she did not want it. Defendant left, and Otto called 9-1-1. She reported to dispatch that defendant had spilled “white powdery stuff’ in the bathroom and had asked her if she “wanted to buy some.” She further reported that, when she said no, defendant asked, “Do you knоw anyone else who does?” and stated several times that he needed to “make some money.”
Police responded to the call and stopped defendant near Otto’s apartment. Defendant was arrested, and a search of his person revealed bags of methamphetamine. Police also found a black glove containing methamphetamine in the patrol vehicle in which defendant had been transported. The substance on Otto’s floor was also determined to be methamphetamine. The total amount of methamphetamine collected at all of those locations was between three and four grams.
Defendant was charged with a number of offenses; the only charge at issue on appeal is Count 2, delivery of methamphetamine for consideration. At the close of the state’s case, defendant moved for a judgment of acquittal on the ground that the state had not established the “for consideration” subfactor. The state countered that that sub-factor was satisfied in two ways. First, the state pointed to evidence that, by sitting on the bed and offering Otto some “incentive,” a rational trier of fact could find that defendant offered methamphetamine to Otto in exchange for sexual favors. Second, the state arguеd that, because defendant “was separating methamphetamine into multiple bags” and stated that he needed to “make some money,” a rational trier of fact could find that defendant delivered methamphetamine “for consideration” by possessing methamphetamine with the intent to sell it. The trial court denied defendant’s motion.
The jury convicted defendant of unlawful delivery of methamphetamine, ORS 475.890. The jury also found beyond a reasonable doubt that the “for consideration” sub-factor under ORS 475.900(2)(a) applied to defendant’s
On appeal, defendant does not dispute that the evidence is sufficient to prove that he violated ORS 475.890 even though no transaction was consummated. That is so because, as defendant acknowledges, “delivery” for purposes of that statute is expressly defined to include the “actual, constructive, or attempted transfer” of a controlled substance from one person to another. ORS 475.005(8). Defendant concedes that there was sufficient evidence to prove that he attempted to transfer methamphetamine. See State v. Rodriguez-Barrera,
Defendant argues, however, that the state presented insufficient evidence that that delivery “is for consideration” for purposes of the penalty enhancement under ORS 475.900(2)(a). Defendant argues that, although an attempted transfer is enough to prove “delivery,” the legislature did not intend the enhanced penalty to apply absent proof of a completed transfer or a preexisting agreement to exchange drugs for consideration.
To resolve whether the trial court erred in denying defendant’s motion, we must construe the meaning of the statutory phrase “is for consideration” as found in ORS 475.900(2)(a). We do so using the framework set forth in PGE v. Bureau of Labor and Industries,
First, we turn to the pertinent text. The legislature has not defined the phrase “is for consideration.” When words lack a specialized meaning, we presume that the legislature intended those words to carry their ordinary meaning. DCBS v. Muliro,
Thus, based on the plain meaning of the phrase “is for consideration” as found in ORS 475.900(2)(a), the state need only prove thаt the defendant committed unlawful delivery of one of the listed substances, and that the delivery was characterized by a purpose to obtain something of value in return, such as payment or some other benefit. By its terms, paragraph (2) (a) can apply to a delivery regardless of the state’s theory of “delivery”; that is, nothing in the statutory text limits application of paragraph (2)(a) to completed transfers. Cf. State v. Stout,
This interpretation is consistent with the legislative history of ORS 475.900(2)(a). Before 1991, crime category designations for unlawful delivery of a controlled substance were set forth in the Oregon Sentencing Guidelines. State v. Rankins,
The legislative history makes clear that, in establishing this middle-tier designation applicable to deliveries “for consideration,” the legislature sought to distinguish between offenders who sell drugs (although not on a scale or in a manner sufficient to qualify for Crime Category 8) and those who merely give them away. See, e.g., Tape Recording, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2390, Jan 30, 1991, Tape 11, Side A (statements of Rep Tom Mason) (explaining that the term “consideration” is “lawyer talk for sale” and the phrase was intended to limit application of the enhanced penalty to those who “sell” drugs). In other words, the point was to treat small-scale drug dealing less seriously than large-scale or “commercial” drug activity but more seriously than sharing drugs with friends. There is no indication
Contrary to defendant’s view, nothing in the legislative history supports a conclusion that the legislature intended to limit application of ORS 475.900(2)(a) to drug transactions involving a completed arrangement for payment, particularly because the statutory text does not carve out an exception to the long-standing definition of “delivery,” which includes drug transfers that are necessarily incomplete. See ORS 475.005(8) (“‘Deliver’ or ‘delivery’ means the actual, constructive or attempted transfer * * * from one person to another of a controlled substance.”); State v. Stark,
In urging that a completed transfer or an agreement to transfer for consideration is required, defendant argues that our recent decision in Villagomez controls our interpretation of the phrase “is for consideration” as used in ORS 475.900(2)(a). In Villagomez, we interpreted the phrase “was for consideration” in a different provision of the same statute, ORS 475.900(l)(b)(A).
In Villagomez, the defendant was apprehended whilе in possession of more than 141 grams of methamphetamine divided into two bags, along with over $4,000 in cash, a ledger, and two cell phones.
Based on the plain meaning of the statutory terms, we first concluded that “a delivery of drugs ‘was for consideration’ if the defendant was induced to deliver drugs, i.e., he or she engaged in an actual, attempted, or constructive transfer of the drugs to another person, in exchange for some benefit from or detriment incurred by another person, e.g., a payment or a promise of payment.” Id. at 36. We then addressed the state’s argument that “consideration can be inferred under ORS 475.900 (l)(b)(A)” based on the presence of other factors suggesting “an intent to transfer drugs for money, goods, or services.” Id. (internаl quotation marks omitted; emphasis added). We rejected that interpretation, concluding that “the legislature intended that the ‘for consideration’ commercial drug offense factor have a distinct and separate meaning from any one or more of the other commercial drug offense factors.” Id. at 36. Accordingly, in light of the purpose and operation of the “commercial drug offense” enhancement, we reasoned:
“[T]he inference that an attempted delivery is ‘for consideration’ in the sense used by the state—that the defendant possessed drugs with the intent or hope of transferring them in exchange for money—arises whenever the state proves any three of the commercial drug offense factors, because proving those factors will demonstrate that the defendant was engaged in ‘commerce’ related to illegal drugs. Under the state’s interpretation of the phrase ‘[t]he delivery *** was for consideration’—that it could be shown by evidence of two other commercial drug offense factors such as possession of cash under ORS 475.900(l)(b)(B) and possession of a large quantity of drugs under ORS 475.900(l)(b)(K)— ORS 475.900(l)(b)(A) would be meaningless surplusage. It would add nothing to the other commercial drug offense factors, and it would be met in every otherwise commercial drug оffense case involving a delivery.
“In contrast, *** [¿Interpreting ORS 475.900(l)(b)(A) to require proof of‘actual consideration’ means that a delivery could satisfy other factors in ORS 475.900(l)(b), indicating that the defendant is operating or participating in a commercial drug operation, without automatically satisfying ORS 475.900(l)(b)(A). Instead, to prove the ‘for consideration’ factor, the state would also have to prove something else—that the defendant actually received, or entered into an agreement to receive, something in exchange for the transfer of the drugs—thereby giving effect to ORS 475.900(l)(b)(A).”
Id. at 38-39 (citation omitted). Put more succinctly, we explained thаt "the Tor consideration’ factor is a way to prove the commercial character of the delivery. The otherwise commercial character of the delivery, on the other hand, is not a way to prove that the transaction was for consideration.” Id. at 36-37. Accordingly, we concluded:
“[T]o prove that a ‘delivery *** was for consideration’ within the meaning of ORS 475.900(l)(b)(A), the state must show thatthe defendant has received, or has entered into an agreement to receive, some benefit from or detriment incurred by another person at the time that he or she commits a delivery. That is so whether that delivery is an actual, attempted, or constructive transfer of drugs.”
Id. at 39. In a footnote, we made clear that our interpretation did not preclude application of the “for consideration” factor when the state proceeds on an “attempted transfer” theory of liability:
“If the state proves that a defendant has entered into an agreement to transfer drugs for consideration, or has received payment in advance of transferring drugs, it has proved that the defendant committed an attempted delivery for actual consideration, even if the defendant did not complete the delivery.”
Id. at n 9.
In this case, defendant argues that Villagomez’s, interpretation of ORS 475.900(l)(b)(A) controls, and that we must similarly interpret ORS 475.900(2)(a) to require proof of either a completed transaction, receipt of payment, or a preexisting agreement to exchange drugs for something of value. It is true that we ordinarily assume that the legislature intends the same terms to have the same meaning in related statutes. State v. Cloutier,
At the outset, it is essential to frame the interpretive question before us. The dispute is not over the meaning of the term “consideration”; we adhere to the well-settled meaning of consideration as stated in Villagomez. See
In resolving that question, the legislature’s use of different verb tenses is evidence that the legislature did not necessarily intend the two phrases to have the same meaning. ORS 475.900(l)(b)(A) is written in the past tense (“was for consideration”), whereas ORS 475.900(2)(a) is written in the present tense (“is for consideration”). We assume that the legislature’s choice of verb tense is purposeful, and verb tense may be “a significant indicator” of legislative intent. Martin v. City of Albany,
The use of the past tense in ORS 475.900(l)(b)(A) is particularly significant because the legislature predominantly uses the simple present tense in the criminal code. See State v. Gonzalez-Valenzuela,
We find further support fоr our conclusion in the distinct purposes of ORS 475.900(l)(b)(A) and (2)(a) as reflected in the statutory structure. As discussed above, subparagraph (l)(b)(A) is one of 11 commercial drug offense factors used to evaluate whether a defendant committed a drug offense as part of an ongoing criminal drug enterprise. Rankins,
Because we conclude that ORS 475.900(2)(a) applies to any qualifying delivery undertaken for the purpose of obtaining something of value—including those proven
Finally, we accept the state’s concession that the trial court plainly erred in requiring defendant to pay attorney fees when the record was silent as to defendant’s “existing or potential financial resources.” See State v. Pendergrapht,
Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.
Notes
Defendant was acquittеd of one count of third-degree sexual abuse related to that conduct.
After our decision in Villagomez was published, defendant submitted a memorandum of additional authorities pursuant to ORAP 5.85, arguing that Villagomez supports defendant’s argument that the state set forth insufficient evidence to prove the “for consideration” subfactor because there is no record evidence that defendant “actually received, or entered into an agreement to receive, something in exchange for the transfer of drugs.” (Internal quotation marks omitted.) Although defendant did not advocate for the precise construction adopted in Villagomez below or in his opening brief, we have an indеpendent obligation to correctly construe Oregon law, and the variance in defendant’s position does not preclude our analyzing the statute in light of Villagomez. See Stull v. Hoke,
In State v. Moeller,
Based on our conclusion, we need not address whether the evidence was sufficient such that a rational trier of fact could find that defendant offered Otto methamphetamine in exchange for sexual favors.