82
Submitted July 30, 2018; convictions on Counts 1 and 2 reversed and remanded
for entry of judgment of conviction for one count of application of a Schedule I
controlled substance to the body of another person under the age of 18,
remanded for resentencing, otherwise affirmed December 4, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
VINCENT EDWARD OLDHAM,
Defendant-Appellant.
Lane County Circuit Court
16CR30179; A163535
455 P3d 975
Defendant appeals a judgment of conviction entered upon his pleas of guilty
to unlawful delivery of a controlled substance to a minor and application of a controlled substance to the body of another person under 18 years of age. Defendant
argues that the trial court erred by failing to merge the guilty findings on those
charges into a single conviction because each element of the delivery charge is
subsumed by those necessary to prove the application charge. The state contends
that the acts of delivering and applying a controlled substance are mutually
exclusive and, therefore, merger is precluded. Held: The trial court erred. Merger
was required because proof that defendant was guilty of the application charge
necessarily proved that he was guilty of the delivery charge.
Convictions on Counts 1 and 2 reversed and remanded for entry of judgment
of conviction for one count of application of a Schedule I controlled substance to
the body of another person under the age of 18; remanded for resentencing; otherwise affirmed.
Jay A. McAlpin, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jacob Brown, Assistant Attorney
General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.
DEHOOG, P. J.
Convictions on Counts 1 and 2 reversed and remanded
for entry of judgment of conviction for one count of application of a Schedule I controlled substance to the body of
another person under the age of 18; remanded for resentencing; otherwise affirmed.
Cite as 301 Or App 82 (2019) 83
DEHOOG, P. J.
Defendant appeals a judgment of conviction entered
upon his pleas of guilty to unlawful delivery of a Schedule I
controlled substance to a minor, ORS 475.906 (Count 1), and
application of a Schedule I controlled substance to the body
of another person under the age of 18, ORS 475.9101 (Count 2).
In his first assignment of error, defendant argues that the
trial court erred by failing to merge its guilty findings for
Counts 1 and 2 as required by ORS 161.067(1). Defendant
argues that merger is required because all of the elements
necessary to prove the delivery charge are subsumed by
those necessary to prove the application charge. The state
contends that the guilty findings cannot merge, because
the relevant statutory scheme demonstrates that the act
of delivering a controlled substance cannot, as defined, be
established by proof of applying a controlled substance to
the body of another. We agree with defendant that the trial
court was required to merge the guilty findings on Counts 1
and 2 into a single conviction. Accordingly, we reverse and
remand for resentencing.2
“We review the sentencing court’s determination of
whether to merge verdicts for errors of law.” State v. Ham,
300 Or App 304, 306,
453 P3d 927 (2019). “Furthermore,
we state the facts underlying that ruling in the light most
favorable to the state; that is, in the light most favorable to
the trial court’s conclusion that merger was not required.”
State v. Dearmitt,
299 Or App 22, 24,
448 P3d 1163 (2019).
The charges at issue arose from a single interaction
between defendant and a 17-year-old victim. The state provided a concise description of their interaction during defendant’s sentencing hearing:
“What happened was [the victim] had some meth, and
she asked the defendant to shoot her up. He supplied the
1
ORS 475.910 has been amended since defendant violated that statute.
However, because those amendments do not affect our analysis, we refer to the
current version of the statute in this opinion.
2
Defendant also pleaded guilty to failure to report as a sex offender—former
ORS 181.812(3)(b), renumbered as ORS 163A.040 (2015)—and he assigns error
to the trial court’s imposition of sentence on that offense. However, because we
reverse on defendant’s first assignment of error and remand the entire case for
resentencing, we need not address defendant’s second assignment of error.
84 State v. Oldham
needle. He suppled the rig to cut off the circulation to her
arm. He used a … paintbrush and a piece of rope, something like that.
“He also used a needle that was inappropriate for the
task. It was a larger needle gauge than most of the surgical
needles that are used to inject methamphetamine. Partly
due to that and partly for other reasons that’s not clear,
when he tried to inject her, it didn’t work. He missed.”
Based on that incident, defendant was arrested
and later indicted on the two counts relevant here: Count 1,
unlawful delivery of a controlled substance to a minor; and
Count 2, application of a controlled substance to the body
of another person under the age of 18. Defendant pleaded
guilty to both counts.
Before sentencing, defendant submitted a memorandum to the court arguing that the trial court was required
to merge its guilty findings under Counts 1 and 2 and enter
a single conviction; defendant also sought a downward dispositional departure to probation, with the special condition
that he enroll in a disability services program. At sentencing, the trial court did not expressly acknowledge defendant’s merger argument. Ultimately, the trial court imposed
separate, but concurrent, upward durational departure sentences on Counts 1 and 2. Defendant now appeals the resulting judgment.
In determining whether multiple violations of the
law must merge, we look to the “anti-merger” statute, ORS
161.067, because, if the circumstances described in the statute “do not exist, then the conduct or criminal episode results
in a single conviction.” State v. Gensitskiy, 365 Or 263, 281,
281 n 5,
446 P3d 26 (2019). When guilty verdicts for two or
more statutory provisions are at issue, ORS 161.067(1) controls.3 See, e.g., State v. White,
301 Or App 74, 77-78,
455 P3d
969 (2019). ORS 161.067(1) provides that “[w]hen 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 offenses as there are separate statutory violations.” In
3
Subsections (2) and (3) of ORS 161.067 concern multiple violations of a single statutory provision and are thus inapplicable here.
Cite as 301 Or App 82 (2019) 85
other words, guilty verdicts arising from “conduct in a criminal episode that violates two or more statutory provisions
merge if all of the elements in one provision are subsumed
into the elements of the other provision.” State v. Noe,
242 Or
App 530, 532,
256 P3d 166 (2011). Except when a statutory
provision contains alternative forms of a single crime, our
review is limited to the statutory elements of each offense
when determining whether two provisions require proof of
an element that the other does not. See, e.g., White,
301 Or
App at 78 (noting that we do not look to the “underlying
factual circumstances recited in the indictment” and that
we only consider the elements as charged when a statute
contains alternative forms of a single crime (quoting State
v. Fujimoto,
266 Or App 353, 357,
338 P3d 180 (2014))).
Because there is no dispute that Counts 1 and 2 arose from
the same conduct or criminal episode, our inquiry is limited
to whether defendant’s convictions for violations of two separate statutory provisions—ORS 475.906 and ORS 475.910—
must merge under ORS 161.067(1).
We begin with an examination of the two statutory
provisions that defendant violated: ORS 475.906 (Count 1)
and ORS 475.910 (Count 2).
ORS 475.906 provides:
“Except as authorized by ORS 475.005 to 475.285 and
475.752 to 475.980, it is unlawful for any person to deliver
a controlled substance to a person under 18 years of age.
…”
ORS 475.910, in turn, provides:
“Except as authorized by ORS 475.005 to 475.285 or
475.752 to 475.980, it is unlawful for any person to intentionally apply a controlled substance to the body of another
person by injection, inhalation, ingestion or any other
means if the other person is under 18 years of age. …”
On appeal, the lone dispute between the parties is
whether proof that defendant applied a controlled substance
to the body of the victim subsumes proof that he delivered
a controlled substance to the victim. The state does not
contend that any other element of ORS 475.906 precludes
merger of the delivery charge with defendant’s application
86 State v. Oldham
charge. Defendant, in turn, does not dispute that, if proof
of application does not subsume the element of delivery, his
charges do not merge. We focus our review accordingly.
Although the term “apply” is not defined by the relevant statutes, “deliver” is defined by ORS 475.005. Under
that provision, “ ‘deliver’ or ‘delivery’ means the actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled
substance, whether or not there is an agency relationship.”
ORS 475.005(8) (emphasis added). Both parties focus on the
exclusion of “administering” from the definition of “deliver”
or “delivery.”
The state argues that, because conduct constituting
“applying” under ORS 475.910 is excluded from the definition of delivery found in ORS 475.005, neither element can
subsume the other. We understand the premise of the state’s
argument to be that “apply … to the body” under ORS
475.910 is synonymous with “administer,” which, under ORS
475.005(2) is defined, in part, as a “direct application …
to the body.” From that premise, the state reasons that, by
excluding “administering” from the definition of “delivery”
under ORS 475.906, the legislature necessarily excluded
“apply … to the body” from that definition as well. As a
result, the state reasons, the two terms are mutually exclusive and proof of one—“application to the body”—cannot
subsume proof of the other—“delivery.” Stated differently,
each of the two statutory provisions requires proof of an element that the other does not, and the resulting counts therefore do not merge. See State v. Lachat, 298 Or App 579, 594,
448 P3d 670 (2019) (merger is required when “one offense
contains X elements, and another offense contains X + 1 elements” (internal quotation marks omitted)).
Defendant on the other hand, disputes that the
exclusion of “administering” from the definition of delivery
renders the acts of delivering and applying mutually exclusive. Rather than focusing exclusively on the phrase “direct
application … to the body” found in ORS 475.005(2), defendant emphasizes the complete definition of “administer”
under that subsection, which, he contends, gives that term
a narrower meaning than “apply … to the body,” as found
Cite as 301 Or App 82 (2019) 87
in ORS 475.910. Specifically, “administer” is defined by ORS
475.005(2) to mean
“the direct application of a controlled substance, whether
by injection, inhalation, ingestion or any other means, to
the body of a patient or research subject by:
“(a) A practitioner or an authorized agent thereof; or
“(b) The patient or research subject at the direction of
the practitioner.”
ORS 475.005(2) (emphasis added). Based on that definition,
we understand defendant’s argument to be that, despite
overlapping terminology, “administering” is not synonymous with applying a controlled substance to the body of
another, and so ORS 475.906 does not exclude conduct that
violates ORS 475.910. Rather, defendant contends, ORS
475.906 excludes conduct constituting applying a controlled
substance to the body of another only when it is engaged
in by a practitioner or at a practitioner’s direction, conduct
that would not violate ORS 475.906 or ORS 475.910. See
ORS 475.910 (rendering it unlawful to apply a controlled
substance to the body of another person under 18 years of
age “[e]xcept as authorized by ORS 475.005”). Thus, defendant argues, proof that he applied a controlled substance to
the victim’s body by injecting methamphetamine into her
arm also proves that he delivered that substance in violation of ORS 475.906. Stated differently, his act of applying a
controlled substance to her body was not barred from being
prosecuted as unlawful delivery even though an act that
constituted “administering” within the meaning of ORS
475.005(2) would be. That, defendant concludes, means that
ORS 161.067(1) required the court to merge its findings of
guilt on Counts 1 and 2 and enter a single conviction.
We conclude that the trial court erred in failing to
merge its findings of guilt on Counts 1 and 2 into a single
conviction. The two statutory provisions at issue in this case
do not each require proof of an element that the other does
not. Rather, proof of each of the elements required to establish defendant’s guilt of Count 2 (application of a controlled
substance) subsumes every element required to prove his
guilt of Count 1 (delivery of a controlled substance). Specific
88 State v. Oldham
to the parties’ arguments, proof that defendant applied a
controlled substance to the body of the victim in violation
of ORS 475.910 also necessarily established that defendant
had violated ORS 475.906. Accordingly, the trial court was
required to merge those counts.
The broad statutory definition of “deliver” in ORS
475.005(8) demonstrates why that is so. As noted, “deliver,”
or “delivery” is defined as “the actual, constructive or
attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance.”
ORS 475.005(8) (emphasis added). “Administer,” in turn,
which the definition of “deliver” expressly excludes, has a
rather narrow meaning: “the direct application of a controlled substance, whether by injection, inhalation, ingestion or any other means, to the body of a patient or research
subject” by a practitioner or at the direction of the practitioner. ORS 475.005(2).4 Reading those two paragraphs of
ORS 475.005 together, delivery is more precisely defined as
“the actual, constructive, or attempted transfer, other than
by [direct application of a controlled substance, whether by
injection, inhalation, ingestion or any other means to the
body of a patient or research subject] or dispensing, from
one person to another of a controlled substance.” As relevant here, then, ORS 475.906 necessarily prohibits all
actual, constructive, or attempted transfers of controlled
substances—including transfers that occur through a direct
application to the body—unless it is to the body of a patient
or a research subject. That necessarily includes transfers
that violate ORS 475.910, as defendant’s conduct indisputably did.
The state’s contrary reasoning exhibits two significant flaws. First, the state evidently sees the parallel
between the phrases “apply … to the body” and “application
… to the body” and concludes that they must be the same.
However, that conclusion wholly disregards the context of
the latter phrase, which plainly limits its scope to a narrow
4
The other half of that exception, “dispense,” is defined under ORS
475.005(10) as “to deliver a controlled substance to an ultimate user or research
subject by or pursuant to the lawful order of a practitioner, and includes the
prescribing, administering, packaging, labeling or compounding necessary to
prepare the substance for that delivery.”
Cite as 301 Or App 82 (2019) 89
slice of all conduct that can be described as “apply[ing] a
controlled substance to the body of another,” which ORS
475.910 presumptively criminalizes. Second, although the
state understandably makes no express argument that, in
light of the exemption for “administering” controlled substances under ORS 475.910, defendant’s conduct did not violate that statute, the argument that the state does make,
when taken to its logical conclusion, would have that consequence. Given the implausibility of that outcome, we reject
the state’s argument that the criminal acts of delivering a
controlled substance, on the one hand, and applying a controlled substance, on the other, are mutually exclusive and
therefore preclude merger under ORS 161.067(1).
In sum, the trial court was required to merge the
guilty finding on Counts 1 and 2 and enter a single conviction. Establishing that defendant had violated ORS 475.910
by injecting the victim with methamphetamine necessarily satisfied the element of delivery under ORS 475.906.
Therefore, the state’s argument that ORS 475.906 requires
proof of an element that ORS 475.910 does not fails, and the
state offers no other argument against merger. As a result,
ORS 161.067(1) required the trial court to merge its findings
of guilt on Counts 1 and 2 into a single conviction. We therefore reverse and remand.
Convictions on Counts 1 and 2 reversed and
remanded for entry of judgment of conviction for one count of
application of a Schedule I controlled substance to the body
of another person under the age of 18; remanded for resentencing; otherwise affirmed.
