State v. Fredricks

                                    249

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
  Submitted July 6; conviction for delivery of methamphetamine reversed and
remanded for entry of a conviction for attempted delivery of methamphetamine;
remanded for resentencing, otherwise affirmed September 20, 2023; petition for
                 review denied February 15, 2024 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 TODD RICHARD FREDRICKS,
                      Defendant-Appellant.
                  Douglas County Circuit Court
                     14CR2229FE; A176992


   Ann Marie Simmons, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant Attorney
General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
   JOYCE, J.
   Conviction for delivery of methamphetamine reversed
and remanded for entry of a conviction for attempted delivery of methamphetamine; remanded for resentencing; otherwise affirmed.
250                                            State v. Fredricks

         JOYCE, J.
         Defendant appeals from a judgment of conviction
after a jury found him guilty of first-degree robbery, seconddegree kidnapping, unlawful use of a weapon, menacing,
possession of methamphetamine, and delivery of methamphetamine. Defendant raises eight assignments of error. We
reverse defendant’s conviction for delivery of methamphetamine, remand for entry of a conviction for attempted delivery and for resentencing, and otherwise affirm.
        Motion to sever: Defendant’s first assignment of
error challenges the trial court’s denial of his motion to sever
the drug-related charges from the robbery-related charges.
Because we conclude that defendant did not preserve his
claim of error (and, arguably, invited it), we affirm on this
assignment.
         A defendant can challenge improper joinder through
a demurrer based on the allegations in the indictment, and
if the allegations are sufficient, a defendant can then litigate whether the evidence is sufficient to support joinder in
a motion to sever or a motion to elect. State v. Warren, 

, 

 (2018). Defendant here moved
pretrial to sever but argued—as one would in support of a
demurrer—that “the question is whether the charges should
be properly joined. The charges. Not the underlying facts.”
Defendant thus objected to the trial court hearing any evidence on the motion. The trial court deferred ruling and
allowed the state to present evidence.
The trial court then denied defendant’s motion, explaining:
      “I have reviewed the charging document itself [and] I’m
   not going to be severing the charges.
      “…
      “I can tell you that the basis for my decision was the fact
   that there are overlapping dates between the drug charges
   that were charged and the charges immediately preceding
   that related to the victims.”
        Now, on appeal, defendant argues that the evidence was insufficient to support joinder and that the court
erred in concluding otherwise. Not only is that argument
Nonprecedential Memo Op: 

 (2023)                              251

qualitatively different than the one raised below, but defendant expressly told the trial court that it did not need to
consider the evidence in ruling on his motion to sever. A
party who invites the court to act in a particular way cannot challenge that action on appeal. See Anderson v. Oregon
Railroad Co., 

, 

 (1904) (a party
who was “actively instrumental in bringing … about” an
alleged error cannot challenge that error on appeal). And,
although the trial court allowed the state to present evidence, it ultimately ruled as defendant had asked it to, i.e.,
on the facts and dates alleged in the indictment. We therefore conclude that defendant’s claim of error is unpreserved
and, because he does not ask that we review it as plain error,
we do not consider whether it satisfies the requisites of plain
error review.
         Motion for judgment of acquittal on delivery of methamphetamine: In his second assignment of error, defendant
contends that the trial court erred in denying his motion for
judgment of acquittal on the count of delivery of methamphetamine. The state concedes that, under State v. Hubbell,

, 

 (2021), rev allowed, 

 (2022), the evidence was insufficient to support a
conviction for the completed crime of delivery of methamphetamine under a Boyd theory of delivery. See State v.
Boyd, 

, 

, rev den, 

(1988), overruled by Hubbell, 

. We agree
and accept that concession.1
         The only question before us is one of remedy. The
state argues that the proper disposition is to reverse and
remand defendant’s conviction for the completed crime of
delivery of a controlled substance and order that the court
enter a conviction for the lesser-included crime of attempted
delivery of a controlled substance. We have previously done
so in cases where the evidence is legally sufficient to demonstrate that the defendant took “a substantial step towards
transferring a controlled substance” and where the jury
    1
       Because we agree that the evidence was insufficient to support a conviction for the completed crime of delivery of methamphetamine, we do not need to
address defendant’s third assignment of error, in which he argues that the court
erred in instructing the jury on what it must find before finding defendant guilty
of delivery of methamphetamine.
252                                        State v. Fredricks

necessarily found that to be proven as a lesser included
offense in convicting the defendant of the completed crime
of delivery under Boyd. E.g., State v. Dippre, 

, 

 (2022) (citing ORS 161.405(1); ORS
475.055(8)).
          We agree that that is the proper course here as well.
After executing a search warrant on defendant’s residence,
police found that defendant possessed a total of 77.2 grams
of methamphetamine. The police discovered the majority of
defendant’s methamphetamine (66.71 grams) in a floor vent
in defendant’s home and found a smaller quantity of methamphetamine (10.49 grams) in defendant’s car, along with a
digital scale. Because defendant had transferred a smaller,
but significant, amount of the drug to his car, along with
the scale, it could be inferred that defendant had the methamphetamine and scale in his car because he intended to
sell it in the immediate future. See State v. Newsted, 

, 

, rev den, 

 (2019)
(possession of scales, packaging, or other materials commonly associated with the delivery of controlled substances
may support an inference that the person possessing them
intends to commit delivery). Additionally, an officer testified
that possessing 50 grams or more of methamphetamine was
more consistent with dealing than personal use and that he
had never seen a person with that amount “ever be … just
a user.” Furthermore, defendant admitted that he did not
measure out doses of methamphetamine for his own personal consumption. Together, that evidence is legally sufficient to establish that defendant took a substantial step
toward the crime of delivery, which the jury necessarily
found in convicting defendant of the completed crime based
on that evidence.
         Motion for judgment of acquittal for first-degree robbery and unlawful use of a weapon: Defendant asserts in
his fifth assignment of error that the trial court erred in
denying his motion for judgment of acquittal on both crimes
because no rational trier of fact could have concluded that
defendant’s weapon was either presently or readily operable. Viewing the evidence in the light most favorable to the
state to determine “whether a rational trier of fact, making
Nonprecedential Memo Op: 

 (2023)           253

reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt[,]”
State v. Hall, 

, 

 (1998), we affirm.
        The state charged defendant with first-degree
robbery under a theory that he committed robbery while
he was “armed with a deadly weapon,” ORS 164.415(1)(a).
A “deadly weapon” is defined as “any instrument, article or
substance specifically designed for and presently capable of
causing death or serious physical injury.” ORS 161.015(2).
A deadly weapon is “presently capable of causing death or
serious physical injury” if it is operational and can be used
“immediately” or “without hesitation or delay.” Norwood v.
Premo, 

, 

, rev den, 

 (2017).
         The state also charged defendant with unlawful
use of a weapon under ORS 166.220, alleging that defendant “did unlawfully attempt to use, carry or possess with
intent to use … a firearm, a dangerous or deadly weapon.”
A “dangerous weapon” refers to any “weapon, device, instrument, material or substance which under the circumstances
in which it is used, attempted to be used or threatened to
be used, is readily capable of causing death or serious physical injury.” ORS 161.015(1). A weapon is “readily capable of
causing death or serious physical injury” if it can be used
within “a short passage of time.” Norwood, 

.
         Here, the state provided ample circumstantial evidence that would have allowed a rational trier of fact to find
that the firearm was presently operable. Defendant’s own
description of his actions during the incident suggest that
he believed his firearm was operational. For instance, defendant admitted to having the firearm with him and that he
pulled out his gun upon entering the motel room because
he was “the back guy” and because he “didn’t know if [the
victim] had [a gun] under the pillow or blanket.” Defendant
also admitted that he pointed the gun at the victim. Where a
person points a gun at another within firing range, it is reasonable to infer that the gun was loaded. State v. Mustain, 

, 

, rev den, 

 (1984).
Additionally, the victim testified that defendant made a
254                                             State v. Fredricks

verbal threat to use the gun when he told her that “little
girls like you get bullets in their heads.” Defendant’s physical and verbal threats to shoot the firearm provide sufficient circumstantial evidence from which a reasonable trier
of fact could infer that the firearm was presently operable
and, therefore, capable of causing death or injury. The trial
court did not err in denying defendant’s motions for judgment of acquittal on the charges of first-degree robbery and
unlawful use of a weapon with a firearm.
         Challenge to testimony on the basis of vouching:
Defendant’s sixth and seventh assignments concern the
trial court’s failure to strike sua sponte parts of Detective
Hansen’s testimony. Defendant acknowledges that his
claims of error are not preserved but asks us to exercise our
discretion to review them as plain error.
         Plain error review requires us to first determine
whether the error is plain, and second, whether to exercise our discretion to consider the error. ORAP 5.45; Ailes
v. Portland Meadows, Inc., 

, 

(1991). For an error to be plain error, it must be, among
other things, obvious and not reasonably in dispute. State v.
Vanornum, 

, 

 (2013).
         It is not “obvious” that Hansen’s testimony constituted vouching. The prosecutor asked Hansen how the
investigation into the incident involving the two victims
began. Hansen explained that he had received a tip from a
deputy who was part of the Douglas Interagency Narcotics
Team (DINT) and that that tip led him to call one of the
victims, P, on the phone. Hansen was asked if the phone conversation was intended to be a thorough interview, to which
Hansen responded, “[a]bsolutely not.” The prosecutor then
asked Hansen to further explain that response. Hansen
responded:
      “So the information was limited. And essentially, the
   reason for my phone call is to, for one, establish that there’s
   an incident that’s occurred. And then for two, to make sure
   whoever the person is that’s reporting that to the deputy is
   being legitimate or is a legitimate person and not something
   that’s a third party hearsay thing or something. And then
   also, to get kind of a baseline of the story, if it’s something
Nonprecedential Memo Op: 

 (2023)                 255

   that the Sheriff’s Office, as the deputies need to handle
   or it’s something that the DINT Team needs to handle, or
   another unit. If, say if it occurred like in Lane County, that
   would be an, you know, an agency in Lane County would
   need to come in with that. So that was my reasoning for the
   phone call.”
(Emphasis added.)
        Additionally, the prosecutor asked Hansen to
“describe what occurred on August 28th of 2014, regarding
the Winchester Storage.” Hansen responded that he and
another detective drove there to look for “specific information” and “any surveillance footage involving [defendant] or
individuals involved in the investigation.” Hansen explained
that he was looking for footage from July 13, 2014, but that
he ultimately obtained footage relevant to the investigation
from July 12, 2014. The following exchange then occurred:
       “Q. [Prosecutor] Did you participate in, how did you
   participate in finding [the footage] and, and realizing that
   it was what you were essentially, that it was pertinent to
   your investigation once you found some footage?
       “A. [Hansen] Well, the information that we had
   appeared to be obviously truthful and honest and we were
   following up on that. And so it was a relative date. And so
   just like anything, we, I didn’t observe anything consistent
   with the information that I had or the investigation on that
   date. Therefore, we started checking the day before and
   then we would obviously check the day after. And then we
   would kind of sequence that within reason to see if it was
   a couple of days before or a couple of days after. And while
   doing that is when we found surveillance that was consistent with the information that we had or were looking for
   on the video.”
(Emphasis added.)
         Defendant contends that the italicized portions
above constituted impermissible vouching, but it is not obvious that that is the case. “Vouching refers to the expression
of one’s personal opinion about the credibility of a witness.”
State v. Sperou, 

, 

 (2019) (internal quotation marks omitted). Thus, a witness cannot make
“a direct comment, or one that is tantamount to a direct
256                                          State v. Fredricks

comment,” on the credibility of another witness’s trial or
pretrial statements. State v. Black, 

, 

 (2019).
         The first part of Hansen’s testimony came in
response to a question asking Hansen to clarify why his initial phone call with P was not intended to be a thorough
interview. Viewed in context, his testimony does not appear
to be aimed at bolstering statements that P made; instead,
his testimony was aimed at clarifying his purpose for contacting P in the first place. Similarly, it is not readily apparent that Hansen’s testimony—that the information that his
team had obtained “appeared to be obviously truthful and
honest”—constitutes vouching. At that point in his testimony, Hansen had referenced multiple investigations and
sources of information, and it is not clear what or who the
source of the referenced “information” was; it appears that
Hansen was offering an explanation for why he decided to
review footage from multiple days at the storage facility.
We thus cannot say that it is “obvious” that Hansen’s testimony bolstered the credibility of any identifiable witness.
Therefore, the trial court did not plainly err when it did
not strike it on its own initiative. See State v. Murphy, 

, 

 (2022) (no plain error if
testimony was ambiguous as to whether the witness’s testimony constituted vouching).
         Nonunanimous jury instruction: In his eighth
assignment of error, defendant contends that the trial court
committed plain error when it instructed the jury that it
could convict him based on nonunanimous verdicts because
the instruction constituted “structural error.” Defendant
acknowledges that his assignment of error is foreclosed by
State v. Flores Ramos, 

, 

 (2020), and
we agree.
        Conviction for delivery of methamphetamine
reversed and remanded for entry of a conviction for attempted
delivery of methamphetamine; remanded for resentencing;
otherwise affirmed.