224
Submitted April 16; conviction on Count 2 reversed and remanded, remanded
for resentencing, otherwise affirmed June 9, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
RONALD GENE TATMAN,
Defendant-Appellant.
Clackamas County Circuit Court
17CR21042; A172047
492 P3d 1271
Defendant appeals from a judgment of conviction for unlawful possession of
methamphetamine (Count 2) and endangering the welfare of a minor (Count 3).
The jury found defendant guilty by a 10-2 verdict on Count 2 and unanimously
found defendant guilty on Count 3. Defendant assigns error to the trial court’s
instruction to the jury that it could return a nonunanimous verdict and to the
court’s acceptance of the nonunanimous verdict on Count 2. Defendant also
assigns error to the court’s denial of his motion for judgment of acquittal on
Count 3, contending that there was insufficient evidence for a reasonable factfinder to find defendant guilty of endangering the welfare of defendant’s minor
grandson, who was present in defendant’s truck that contained significant quantities of syringes and drug paraphernalia. Held: The trial court erred in giving
the nonunanimous jury instruction and in accepting the nonunanimous verdict
on Count 2. However, the instructional error was harmless as to the unanimous
verdict on Count 3. Additionally, the court did not err in denying defendant’s
motion for judgment of acquittal. Applying State v. Gonzalez-Valenzuela, 358 Or
451,
365 P3d 116 (2015), there was sufficient evidence from which a rational factfinder could find that defendant’s truck was a place that was substantially used
to facilitate unlawful drug activity such that the drug use had become a characteristic of the truck itself.
Conviction on Count 2 reversed and remanded; remanded for resentencing;
otherwise affirmed.
Thomas J. Rastetter, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
Cite as 312 Or App 224 (2021) 225
SHORR, J.
Conviction on Count 2 reversed and remanded; remanded
for resentencing; otherwise affirmed.
226 State v. Tatman
SHORR, J.
Defendant appeals from a judgment of conviction
for unlawful possession of methamphetamine, ORS 475.894
(Count 2), and endangering the welfare of a minor, ORS
163.575 (Count 3).1 The jury found defendant guilty by a 10-2
verdict on Count 2 and unanimously found defendant guilty
on Count 3. Defendant assigns error to the trial court’s
instruction that the jury could reach a nonunanimous verdict and to the court’s acceptance of a 10-2 verdict on Count 2.
The state concedes the error and acknowledges that the conviction on Count 2 must be reversed. We agree and accept
the state’s concession. Defendant also assigns error to the
court’s denial of his motion for judgment of acquittal on
Count 3, contending that there was insufficient evidence for
a reasonable factfinder to find defendant guilty of endangering the welfare of a minor. As we discuss below, we reject
that argument and affirm the judgment on that count. As
a result, we reverse and remand the conviction on Count 2,
remand for resentencing, and otherwise affirm.
We briefly discuss the legal issues raised by the
nonunanimous jury instruction and verdict before we turn
to the facts relating to the motion for judgment of acquittal. The trial court, over defendant’s objection, instructed
the jury that it could return a 10-2 verdict. The court later
accepted a unanimous verdict on the charge of endangering the welfare of a minor and a nonunanimous verdict on
the charge of unlawful possession of methamphetamine.
Defendant contends that the court erred in instructing the
jury and that the error was “structural error” such that
both counts, including the count that the jury decided unanimously, should be reversed and remanded.
The state concedes error. However, it contends that
the error was harmless as to the unanimous verdict and
necessitates reversal of the nonunanimous verdict only.
We accept the state’s concession. It was error for the trial
court to instruct the jury that it could return a nonunanimous verdict. The Sixth Amendment to the United States
1
Count 1 was a charge for unlawful possession of heroin, ORS 475.854, and
resulted in a mistrial after the jury could not reach a verdict.
Cite as 312 Or App 224 (2021) 227
Constitution, incorporated against the states under the
Fourteenth Amendment, requires a unanimous verdict in
cases involving serious offenses. Ramos v. Louisiana,
590
US ___, ___,
140 S Ct 1390, 1397,
206 L Ed 2d 583 (2020); see
State v. Ulery,
366 Or 500, 501,
464 P3d 1123 (2020) (“Ramos
leaves no doubt that our state’s acceptance of nonunanimous
guilty verdicts must change ….”). However, that error was
not a structural error and was harmless as to the jury’s
unanimous verdict on Count 3. State v. Flores Ramos,
367
Or 292, 334,
478 P3d 515 (2020). It was not harmless as to
the jury’s nonunanimous verdict on Count 2. Ulery,
366 Or
at 504. Therefore, defendant is entitled to a reversal of his
conviction on that count.
Defendant also contends that the conviction on
Count 3 for endangering the welfare of a minor should be
reversed because the trial court erred in denying defendant’s motion for judgment of acquittal as to that charge.
When reviewing a trial court’s denial of a motion for judgment of acquittal, we “view the evidence in the light most
favorable to the state to determine whether a rational trier
of fact, making reasonable inferences, could have found the
essential elements of the crime proved beyond a reasonable
doubt.” State v. Hall, 327 Or 568, 570,
966 P2d 208 (1998). We
state the relevant facts below consistent with that standard.
Clackamas County Sheriff Sergeant Malizia was on
patrol shortly after 3:00 p.m. when he was flagged down by
a citizen to do a welfare check on the occupants of a black
pickup truck parked in a grocery store parking lot. The truck
was parked but the engine was running and both the brake
and reverse lights were on, indicating that the vehicle was
in gear. The driver’s side window was missing and replaced
by plastic sheeting. The sergeant could see defendant sitting
in the driver’s seat appearing to look down at a cell phone
in his lap. He could also see an adult woman, who turned
out to be defendant’s daughter, seated in the passenger seat
with her head back, mouth open, and eyes closed. Based on
Malizia’s experience, the woman’s posture was similar to
those who are passed out due to intoxication.
Malizia tapped on the door and defendant opened
it. When defendant opened the door, Malizia “immediately”
228 State v. Tatman
saw that the door panel held three uncapped syringes and
the bulbous end of what he believed to be a “glass meth pipe”
with black, burned residue. Malizia also observed syringes
on the floorboard and throughout the driver’s compartment.
He observed scabs and sores on defendant’s face and hands
that, based on Malizia’s training and experience investigating drug crimes, indicated that defendant used methamphetamine. After some conversation, defendant stated that
he had been living in the truck. While Malizia spoke with
defendant, he noticed someone in the rear passenger area.
Defendant stated that it was his seven-year-old grandson, S.
S is defendant’s daughter’s son. S was standing up and not
secured.
Malizia arrested defendant based on Malizia’s
belief that there was probable cause that defendant had
unlawfully possessed methamphetamine. After defendant’s
daughter and grandson left the truck, Malizia proceeded
to search it. On the driver’s side of the front portion of the
truck cab, Malizia found clear plastic packaging with a dark
brown substance that appeared to be heroin, a burned metal
dish that Malizia believed to be a drug “cooker,” and several
small plastic baggies. Between the front seats of the truck
and along the floorboard, he found “multiple” additional
syringes, some uncapped, and another bulbous glass pipe,
broken, with burned residue. The sergeant also found additional syringes, a metal spoon with burned residue, and tin
foil with burned residue in the middle console. The sergeant
found two additional uncapped syringes and a cut-off straw
in the glove box. He found several capped and uncapped
syringes in the front passenger area.
The sergeant then searched the rear passenger
area where he had seen S unsecured. There, he found two
uncapped syringes in the door panel, two uncapped syringes
under the seat where S had been standing, and an uncapped
syringe on the floorboard. Some of the syringes appeared
used. They had dried blood on them and what the officer
perceived to be dried heroin residue. Malizia also found
additional packages of syringes that were in their original
manufacturer’s wrapping. Malizia eventually discontinued
his search as he found more uncapped syringes because
Cite as 312 Or App 224 (2021) 229
he became concerned that he would get poked by a needle
and risk his health. In total, Malizia believed that he found
approximately 30 to 40 syringes inside the truck and that
15 to 20 of those syringes were uncapped.
When Malizia later showed defendant’s daughter
the uncapped syringes around where her son had been sitting, she began to cry. She later testified, however, that she
was legally blind due to diabetic retinopathy. She testified
that she had syringes “in [her] own possession” due to her
insulin injections. According to defendant’s daughter, S was
familiar with syringes because he had helped give her insulin. She had been teaching him since he was three years old.
When Malizia asked defendant about the uncapped
syringes that were near his grandson in the truck, defendant initially denied knowledge of them and claimed he
had let others use his truck. Defendant also replied that the
uncapped syringes near his grandson “[made him] mad,”
but the officer thought he made the statement with a “smirk
or a grin” on his face. Later, defendant explained that a dog
had gotten into the truck, picked up a package of syringes,
and scattered them all over. Defendant stated that he had
thought that he had picked them up. He also changed his
account that he had been living in the truck by claiming
that he was just using it to store things while he lived in a
house in Portland.
At trial, defendant also testified that he had loaned
his truck to his “on again/off again” girlfriend, Dorothy,
who was a drug user. He noticed that, when she returned
the truck, it was a “disaster” and had needles inside it.
He explained that he had tried to pick up all of the needles but may have missed some of them. He also testified
that S had noticed a broken glass pipe at a park the day
before the events at issue here so defendant secured the pipe
and placed it in the door of the vehicle so S would not cut
himself.
The Oregon State Crime Lab later tested two of the
items found in the front of the truck and found methamphetamine residue from one of the glass pipes and heroin tar in
the recovered plastic packaging.
230 State v. Tatman
As noted, defendant moved for a judgment of acquittal at the conclusion of the state’s case, contending that
there was insufficient evidence for a reasonable factfinder
to conclude that he had endangered the welfare of a minor.
As relevant to defendant’s particular charge, the state was
required to prove that defendant knowingly permitted “a
person under 18 years of age to enter or remain in a place
where unlawful activity involving controlled substances is
maintained or conducted.” ORS 163.575(1)(b) (emphasis
added). Defendant argued that, under State v. Gonzalez-Valenzuela, 358 Or 451, 473,
365 P3d 116 (2015), the state
must prove that the truck in which S was found was a place
where “a principal and substantial use of the place is to
facilitate unlawful drug activity.” Defendant maintained
that the state could not show the frequency or degree of any
claimed drug use in the truck or that defendant had been in
possession of the truck for a long period. The state remonstrated that, given the “sheer amount of drug activity” that
the jury could find took place in the truck, the truck itself
was akin to a “drug house on wheels” and that drug activity
had become a quality or characteristic of the truck itself.
The trial court denied defendant’s motion, observing that
there was evidence that defendant had been living in the
truck, there were 30 to 40 syringes located in it, and a reasonable factfinder could conclude that the child was in a
place where there was more than just isolated or spontaneous drug activity.
Defendant reprises the argument that he raised in
the trial court, namely that the state did not present sufficient evidence from which a rational factfinder could find
that the truck where S was located was a place “principally
or substantially used for drug activity.” We disagree.
We turn to the relevant legal principles. As defendant correctly argued in the trial court, the Supreme Court
in Gonzalez-Valenzuela construed ORS 163.575(1)(b), particularly the requirement that the state prove that a defendant permitted a minor to enter or remain in “a place where
unlawful activity involving controlled substances is maintained or conducted.” Id. In that case, the defendant and
her five-year-old daughter were passengers in a borrowed
car driven by the defendant’s 17-year-old daughter.
Id. at
Cite as
312 Or App 224 (2021) 231
453. While in the car, the defendant had possessed small
amounts of heroin, methamphetamine, and methadone in
her open purse. After a short bench trial, the defendant
was convicted of endangering the welfare of her two minor
daughters. Id. at 453-54. The Supreme Court concluded that
the trial court should have entered a judgment of acquittal.
Id. at 474. After construing the text, context, and legislative
history, the court concluded that the legislature intended
ORS 163.575(1)(b)
“to be defined in reference to the criminal nuisance standards for drug houses and similar locations. Therefore, the
phrase ‘a place where unlawful activity involving controlled
substances is maintained or conducted,’ ORS 163.575(1)(b),
refers to a place where a principal or substantial use of the
place is to facilitate unlawful drug activity.”
Id. at 473. The court concluded that illegal drug possession,
even without any additional affirmative action, could be
“unlawful activity involving controlled substances” under
ORS 163.575(1)(b). Id. at 458-59. However, in applying the
above-quoted standard to the facts in that case, the court
concluded that the defendant’s travel with her daughters in
a car while possessing drugs in her purse was “a brief isolated incident of drug activity” that did not make the car
in which the defendant travelled a “place” that was principally or substantially used for drug activity. Id. at 473-74.
Notably, the court stated that there was no evidence from
which a reasonable inference could be drawn that the car
“was used for drug activity in a way that would make that
activity more than an incidental characteristic of the car
itself.” Id. at 474.
Gonzalez-Valenzuela did not decide “the full range of
facts that can or will satisfy [the] standard,” but concluded
that relevant factors included “the nature of the activity, its
duration or frequency, and the degree to which the activity
is an incidental, brief, spontaneous, or isolated occurrence”
in the place or “the degree to which it has become a quality
or characteristic of the place itself.” Id. at 473.
Applying Gonzalez-Valenzuela and its factors here,
we conclude that there is evidence from which a rational
factfinder could find that defendant’s truck was not simply a
232 State v. Tatman
place where incidental, brief, spontaneous, or isolated drug
activity occurred. Rather, a factfinder could reasonably find
that there was such extensive, prolonged, and regular use
of drugs in the truck by defendant that the truck was a
place that was, at the least, “substantially” used to facilitate unlawful drug activity and the drug use had become a
characteristic of the truck itself. As noted, the officer found
approximately 30 to 40 syringes strewn about the truck. The
officer estimated that half of those syringes were uncapped
and a number appeared used. Several syringes were within
reach of the unbuckled child standing on the backseat of the
stopped but in-gear truck. The officer also found, throughout
the truck, illegal drugs, a broken glass pipe, a second glass
pipe, and other paraphernalia that a factfinder, based on
all of the evidence, could reasonably find were used for taking illegal drugs.2 In addition, a factfinder could find, based
on defendant’s testimony, that defendant had been living
in the truck and that the drugs, syringes, and drug paraphernalia were present not just during a short drive but had
accumulated and been present over time while defendant
lived in the truck. That activity is far from the isolated and
incidental possession of drugs in a car that was at issue in
Gonzalez-Valenzuela and readily surpasses that case’s standard for determining whether a place, under ORS 163.575
(1)(b), is principally or substantially used to facilitate unlawful drug activity. 358 Or at 473.
Defendant finally contends that the facts here are
similar to those in State v. Hobbs, in which we reversed the
trial court’s denial of a motion for judgment of acquittal on
a charge of endangering the welfare of a minor. 290 Or App
773, 775,
416 P3d 322 (2018). In Hobbs, the defendant regularly used methamphetamine and stored small quantities
2
We note that the issue in this case is not whether an officer had probable
cause to believe, based on the presence of drug paraphernalia, that illegal drugs
would be present. See, e.g., State v. Sunderman, 304 Or App 329, 343-44,
467 P3d
52 (2020) (noting that the presence of used and unused glass methamphetamine
pipes does not provide probable cause to believe that a defendant currently possessed methamphetamine). This appeal arises out of the denial of a motion for
judgment of acquittal. Therefore, the issue in this case is whether a reasonable
factfinder, when viewing the evidence in the light most favorable to the state,
which evidence included the actual presence of illegal drugs and drug paraphernalia, could find that defendant’s truck was principally or substantially used for
illegal drug activity.
Cite as
312 Or App 224 (2021) 233
of methamphetamine, scales, and pipes in a safe in his bedroom. Id. at 775-76. There were also some empty bindles in
the defendant’s bedroom that had contained methamphetamine at one point. Id. at 776. The police found the defendant’s daughter sleeping on a couch in the living room, a
separate part of the house. Id. at 775. We held that a factfinder could reasonably find, based on that evidence, that
the defendant regularly used and stored small quantities of
methamphetamine in his bedroom for personal use, but that
that evidence was insufficient to support a finding that the
defendant’s personal use had made the entire house itself a
“place that was ‘principally’ or ‘substantially’ used to facilitate unlawful drug activity.” Id. at 778.
We conclude that the facts in the present case are
distinguishable from those in Hobbs. Here, as discussed
above, there was evidence from which a reasonable factfinder could find that defendant regularly possessed and
used drugs in a truck that he lived in; that his passenger, the child’s mother, had used drugs in the truck; that
defendant’s use, including the used and uncapped syringes
and discarded drug paraphernalia present throughout the
truck, had become a characteristic of the truck itself; and
that the child had been within that confined space in immediate proximity to that use and the resulting effects of that
use. We therefore reject defendant’s argument that the trial
court erred in denying his motion for judgment of acquittal.
In sum, we conclude that the trial court erred in
instructing the jury that it could return a nonunanimous
verdict. That error was not a structural error and was harmless as to the unanimous verdict on endangering the welfare
of a minor (Count 3). The error was not harmless as to the
10-2 verdict on unlawful possession of methamphetamine
(Count 2), and that conviction must be reversed. In addition,
the trial court did not err in denying defendant’s motion for
judgment of acquittal on the charge of endangering the welfare of a minor.
Conviction on Count 2 reversed and remanded;
remanded for resentencing; otherwise affirmed.
