State v. Jackson

                                  518

     Submitted July 12; remanded for resentencing, otherwise affirmed
                           September 18, 2019


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
            THOMAS THOMAS JACKSON, JR.,
                  Defendant-Appellant.
             Washington County Circuit Court
                  17CR42780; A166925
                               

  James Lee Fun, Jr., Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the briefs for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Landau, Senior Judge.
  PER CURIAM
  Remanded for resentencing; otherwise affirmed.
Cite as 

 (2019)                                              519

           PER CURIAM

         Following a jury trial, defendant was convicted of
assault in the fourth degree constituting domestic violence
as a lesser-included offense (Count 1), ORS 163.160; unauthorized use of a motor vehicle (Count 3), ORS 164.135; and
felon in possession of a firearm (Count 5), ORS 166.270. On
Count 1, defendant was sentenced to five years of probation and ordered to comply with a number of conditions.
In defendant’s fifth through seventh assignments of error,
defendant challenges probation conditions that appeared for
the first time in the judgment, including conditions prohibiting him from: (1) consuming or possessing controlled substances or frequenting places where controlled substances
are used; (2) possessing or consuming marijuana and participating in the “Oregon Medical Marijuana Program”; and
(3) knowingly associating with any person who uses or possesses controlled substances illegally or frequenting places
where such substances are kept or sold.1 Defendant argues
that those conditions are invalid because any special condition imposed relating to marijuana must be imposed in the
same manner as probation conditions relating to prescription medication and that the rules of preservation do not
apply.

         The state concedes that the condition prohibiting
defendant from participating in Oregon’s medical marijuana
program is invalid “at a minimum” under ORS 137.542(2).
The state further concedes that the other conditions are
invalid if defendant holds a medical marijuana registry
card and that preservation is not required. We agree with
the state that, if defendant holds a medical marijuana registry card pursuant to the Oregon Medical Marijuana Act
(OMMA), the conditions are invalid and that preservation
is not required because the conditions appeared for the first
time in the judgment. State v. Miller, 

, 450

    1
      In supplemental briefing, defendant raised additional assignments of error
arguing that the trial court plainly erred in accepting nonunanimous verdicts
and in instructing the jury that it could return nonunanimous verdicts. We reject
those assignments of error on the merits. Further, we reject defendant’s third
and fourth assignments as moot. Lastly, we reject the remaining assignments of
error without discussion.
520                                                      State v. Jackson

P3d 578 (2019).2 Accordingly, we remand to the trial court
to determine whether defendant holds a medical marijuana
registry card.
           Remanded for resentencing; otherwise affirmed.




    2
      We express no opinion on the state’s concession that, regardless of defendant’s OMMA status, the condition prohibiting defendant’s participation in the
medical marijuana program is invalid under ORS 137.542(2) because the issue
can be addressed in the first instance on remand.