300 ORAPP 643 - State v. Merritt

                                  643

  Submitted October 4; Counts 1, 2, and 4 reversed and remanded, Count 3
                       reversed November 20, 2019


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                   BRENDA KAY MERRITT,
                     Defendant-Appellant.
                   Coos County Circuit Court
                     17CR34250; A166478

454 P3d 844



  Richard L. Barron, Senior Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and DeVore, Judge, and
Powers, Judge.
  PER CURIAM
   Counts 1, 2, and 4 reversed and remanded; Count 3
reversed.
644                                           State v. Merritt

        PER CURIAM

        Defendant appeals her judgment of conviction for
two counts each of delivery of methamphetamine (Counts 1
and 3) and possession of methamphetamine (Counts 2 and 4).
We reverse and remand for a new trial on count Counts 1, 2,
and 4, and for entry of a judgment of acquittal on Count 3.

         In her first assignment of error, defendant contends
that the trial court abused its discretion in denying her
request for a jury waiver. The state concedes the point under
State v. Ames,

298 Or App 227

445 P3d 928

 (2019). In Ames,
we concluded that the trial court abused its discretion in
denying the defendant’s day-of-trial request to waive a jury
because “the trial court over-looked the time and resources
that could be saved by going forward with a bench trial,”
and the “the inconvenience to the court and the jurors was
relatively minor, when weighed against defendant’s exercise
of his constitutional right to waive trial by jury.”

Id.

 at 238-
39. Accordingly, we reversed and remanded for a new trial.
Here, as the state acknowledges, the relevant facts are not
materially distinguishable from those in Ames. We must
therefore reverse and remand on all counts, save one.

         In her fourth assignment of error, defendant contends that the trial court erred by denying her motion for
judgment of acquittal on Count 3. Defendant argues that
there was no evidence that she possessed a saleable quantity of methamphetamine, making it speculative for a jury
to determine that defendant possessed methamphetamine
with the intent to transfer it. See State v. Newsted,

297 Or App 848, 853-54

444 P3d 527

 (2019) (intent to transfer can
be inferred from a showing that the defendant possessed
an amount of a controlled substance inconsistent with personal use, along with materials commonly associated with
delivery of controlled substances, such as scales and packaging materials). The state concedes that the evidence presented with respect to Count 3 was insufficient to establish
a nonspeculative inference that she intended to transfer the
methamphetamine found in her possession. We agree and
accept the state’s concession that defendant is entitled to
entry of a judgment of acquittal on Count 3.
Cite as

300 Or App 643

 (2019)                          645

         This resolution obviates the need to address defendant’s remaining assignments of error, which present issues
that may not recur on remand.
        Counts 1, 2, and 4 reversed and remanded; Count 3
reversed.