State v. Anner

388                     October 9, 2024                 No. 711

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                    STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               RAYNOLD BARRY ANNER, JR.,
                    Defendant-Appellant.
               Clackamas County Circuit Court
                    19CR76998; A179540

   Heather Karabeika, Judge.
   Submitted July 25, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kate E. Morrow, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
   SHORR, P. J.
   Affirmed.
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         SHORR, P. J.
          Defendant appeals from a judgment of conviction
following a bench trial for one count of attempted delivery
of methamphetamine (Count 1), one count of possession of
methamphetamine (Count 3), one count of possession of
cocaine (Count 4), two counts of identity theft (Counts 5 and
6), and one count of giving false information to a police officer (Count 10). The trial court also found defendant guilty
of one count of giving false information to a peace officer
in connection with a warrant (Count 11), which the court
merged with the verdict for Count 10, which resulted in one
conviction on those two counts. On appeal, defendant raises
six assignments of error. First, defendant assigns error to
the trial court’s denial of his demurrer to the indictment for
failing to properly allege a basis for joinder. Second, defendant assigns error to the trial court’s denial of his demurrer
to the indictment, arguing that the charge of giving false
information to a police officer violates his constitutional
right of free expression. Last, defendant assigns error to the
trial court’s denial of his motions for a judgment of acquittal
(MJOAs) on Counts 1, 3, 4, and 5. For the following reasons,
we conclude that the trial court did not err and, therefore,
affirm the judgment of conviction on all counts.
         We briefly state the relevant facts, which are undisputed. A police officer pulled over defendant for driving an
unregistered vehicle. Defendant told the officer that the
vehicle belonged to his girlfriend. Defendant was the only
individual in the vehicle. The officer noticed a blue drawstring bag behind the driver’s seat with a Ziploc bag sticking
out of the top. The officer asked defendant whether the bag
contained marijuana, to which the defendant replied that it
did not. In response to the officer’s request for identification,
defendant presented a false identification document. After
the officer checked the driver’s license and questioned defendant about discrepancies, defendant revealed to the officer
his real name and the existence of an outstanding warrant for his arrest. The officer arrested defendant. The blue
drawstring bag contained a Ziploc bag with 20.78 grams of
methamphetamine, a Ziploc bag with 0.39 grams of cocaine,
several other small, empty Ziploc bags, several checks, and
390                                             State v. Anner

a scale. The arresting officer testified that, based on the officer’s training and experience, a user amount of methamphetamine is between 0.2 to 0.5 grams.
         The indictment charged defendant with 11 separate
offenses, all charged as occurring on or about the same day,
November 24, 2019. The indictment included a statement
that the offenses are “alleged as being of the same or similar character, based on the same act or transaction, and/
or based on two or more acts or transactions connected
together or constituting parts of a common scheme or plan,
unless specifically alleged otherwise.” Before trial, defendant filed two demurrers. In the first, defendant demurred
against the indictment for insufficient basis for joinder of
the charges. In the second, defendant demurred against the
charge under ORS 162.385(1)(b) (Count 11) for giving false
information to a police officer in connection with a warrant,
arguing that the statute violated his constitutional free
speech protections. At the later bench trial, defendant filed
MJOAs on Counts 1 through 9. The court denied defendant’s
demurrers and his MJOAs.
         In his first assignment of error, defendant argues
that the trial court erred in denying his demurrer to the
indictment for not properly alleging a basis for joinder. The
indictment alleged the bases for joinder by essentially quoting the text of the joinder statute, ORS 132.560. Defendant
contends that the state’s boilerplate-joinder allegation in the
indictment was insufficient to satisfy the requirements of
ORS 132.560, because the allegation did not specify which
basis for joinder applied. The state argues that the indictment in this case was sufficient, because on its face it provided notice of the reason for joining offenses in the same
charging instrument. We agree with the state that the
indictment was sufficient and therefore reject defendant’s
first assignment of error.
         “[W]e review a trial court’s determination that the
state met the statutory requirements for joinder of charges
for legal error.” State v. Thompson, 

, 

, cert den, 

 (1999). The joinder statute allows
charging two or more offenses in the same charging instrument in a separate count for each offense if the offenses
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charged are alleged to have been committed by the same
person(s) and are of the same or similar character, based on
the same act or transaction, or based on two or more acts
or transactions connected together or constituting parts of
a common scheme or plan. ORS 132.560(1)(b). The state is
“required to allege in the charging instrument the basis for
the joinder of the crimes that are charged in it, whether by
alleging the basis for joinder in the language of the joinder
statute or by alleging facts sufficient to establish compliance
with the joinder statute.” State v. Poston, 

, 

 (2016), adh’d to on recons, 

, 

, rev den, 

 (2017); see also State v.
Warren, 

, 

 (2018) (stating that
alleging the basis for joinder is not difficult and that using
the language of the joinder statute generally is sufficient).
         The indictment satisfies the requirement articulated in Poston because it alleged a statutory basis for joinder and it further alleged facts sufficient to establish compliance with the joinder statute. First, the indictment contains
an express statement alleging the basis for joinder using
the language of the joinder statute. Second, the indictment
alleged that all 11 counts occurred on or about the same day,
November 24, 2019, indicating that they were based on the
same act or transaction. See State v. Fitzgerald, 

, 

 (1973) (stating that “two charges arise out
of the same act or transaction if they are so closely linked
in time, place and circumstance that a complete account of
one charge cannot be related without relating details of the
other charge”). In this case, the language in the indictment
was sufficient for the purposes of ORS 132.560. The trial
court did not err in denying defendant’s demurrer.
         In his second assignment of error, defendant challenges the trial court’s denial of his demurrer, arguing that
ORS 162.385(1)(b) (criminalizing giving false information
to a peace officer in connection with a warrant) violates
Article I, section 8, of the Oregon Constitution’s protection
of free expression.
         We review the question whether ORS.162.385(1)(b)
 violates Article I, section 8, of the Oregon Constitution for
legal error. State v. Cook, 

, 438, ___ P3d
392                                            State v. Anner

___ (2024). Article I, section 8, of the Oregon Constitution
provides that “[n]o law shall be passed restraining the free
expression of opinion, or restricting the right to speak,
write, or print freely on any subject whatever ….” In State
v. Robertson, the Supreme Court established an analytical
framework for evaluating a law’s constitutionality under
Article I, section 8. 

, 

 (1982). A law
that targets speech based on its substance falls into “category one” of the framework, and is unconstitutional unless
it falls wholly within a historical exception. State ex rel
Rosenblum v. Living Essentials, LLC, 

, 

 (2023).
         The parties both contend that ORS 162.385(1)(b)
falls within category one of the Robertson framework, that
is, that the statute targets speech based on its substance.
We agree. Thus, the law is unconstitutional unless it falls
wholly within a historical exception. Living Essentials, 

.
          In Robertson, the Supreme Court recognized fraud
as a well-established historical exception. 

(listing fraud as one example of a well-established historical
exception). The historical understanding of fraud includes
not only culpable speech, but also misrepresentations
thought to affect the public interest. Living Essentials, 

. Citing Blackstone’s Commentaries, the court also
recognized that misrepresenting one’s identity before a public official was a felony under English law. State v. Moyer,

, 

, cert den, 

 (2010)
(noting “Blackstone’s observations that providing false identifying information to governmental officials or public bodies were sanctionable offenses” (citing William Blackstone,
4 Commentaries on the Laws of England *41-42 (1769))).
As a result, the court concluded that it was “unlikely that
the framers of the United States Constitution or Oregon
Constitution considered that kind of false communication
a form of constitutionally protected expression.” Moyer, 

. The court also concluded that the elements of a
modern statute need not be “identical or matched perfectly
with historical prohibitions to fall within a historical exception” where the statute is “an extension or modern variant of
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the initial principle that underlies the historic legal prohibition against deceptive or misleading expression.” Id. at 237.
         ORS 162.385(1)(b) prohibits a person from knowingly giving false identifying information to a peace officer when there is an outstanding warrant for the person’s
arrest. The prohibitions of ORS 162.385(1)(b) fall within
the same principle that underlies the historical prohibition
against misrepresenting one’s identity before a public official that existed at the time the Oregon Constitution was
adopted. Therefore, we conclude that ORS 162.385(1)(b) falls
within a historical exception to constitutionally protected
expression and does not violate Article I, section 8, of the
Oregon Constitution. The trial court did not err in denying
defendant’s demurrer.
        In assignments of error three through six, defendant argues that the trial court erred in denying his MJOAs,
because the evidence was legally insufficient to prove the
crimes of attempted delivery of methamphetamine (Count 1),
possession of methamphetamine (Count 3), possession of
cocaine (Count 4), and identity theft of victim B (Count 5).
         We review questions of the sufficiency of evidence in
a criminal case following a conviction by examining the evidence in the light most favorable to the state to determine
whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the
essential elements of the crime beyond a reasonable doubt.
State v. Cunningham, 

, 

 (1994), cert
den, 

 (1995). Each of the counts above required
proof that defendant possessed the drawstring bag’s contents, which can be established through either actual or constructive possession. State v. Tacia, 

, 431, 

 (2024). To establish constructive possession, “the
state must show that the defendant exercised control over or
had the right to control the substance.” 

 Mere proximity
is not a sufficient basis from which to draw an inference
of constructive possession. 

 For attempted delivery of a
controlled substance, the state must show not only that the
defendant possessed a controlled substance, but also that he
had the intent to transfer it. State v. Newsted, 

, 

, rev den, 

 (2019). Intent to
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transfer may be inferred where the defendant possesses a
controlled substance in an amount inconsistent with personal use and possesses items associated with the delivery
of a controlled substance. Id. at 852-53.
         On the issue of possession, defendant contends that
his mere proximity to the bag containing the controlled substances and checks was not a sufficient basis to establish
constructive possession. We agree that defendant’s mere
proximity to the bag would not be sufficient itself to establish
constructive possession. But his statement that the bag did
not contain marijuana gave rise to a reasonable inference
that defendant knew the contents of the bag. Defendant was
also the only person in the vehicle at the time, and there was
evidence that he was aware of the bag’s presence behind his
seat. Taken together, and viewed in the light most favorable
to the state, those facts are sufficient for a rational factfinder
to find that defendant had either exercised control over or
had a right to control the blue drawstring bag, which would
be enough to establish constructive possession over the bag
and its contents. See State v. Fry, 

, 

 (2003) (stating that a defendant’s own statements can
provide a link between the defendant’s proximity to an item
and constructive possession over it); State v. Garcia, 

, 

 (1993) (concluding that there
was sufficient evidence of constructive possession to survive
an MJOA where drugs were found hidden in an apartment
where defendant was staying and he admitted to having
handled them). Thus, on this record there was sufficient evidence for the trial court, acting as factfinder, to have found
that defendant constructively possessed the bag’s contents,
namely the methamphetamine, cocaine, and the check at
issue in the identity-theft charge for victim B.
         On the issue of the inchoate crime of attempted
delivery of methamphetamine, defendant asserts that “it
was entirely plausible that defendant possessed” the scale
and packaging materials “for his personal use.” Although
personal use might be plausible, the facts, when viewed
in the light most favorable to the state, were sufficient
for a reasonable factfinder to find that defendant had the
intent to transfer methamphetamine. Based on the officer’s
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testimony and experience that a personal use is between 0.2
and 0.5 grams, a reasonable factfinder could find that defendant’s possession of 20.78 grams of methamphetamine is an
amount inconsistent with personal use. See also Newsted,

 (witness testified that an individual use of
methamphetamine ranges from 0.1 to 0.5 grams). Defendant
also possessed plastic baggies and a scale, which are items
that can be associated with the delivery of a controlled substance. We therefore conclude that there was sufficient evidence for the trial court, acting as factfinder, to have found
that defendant attempted to deliver methamphetamine. The
trial court did not err in denying defendant’s MJOAs.
        For the reasons discussed above, we reject defendant’s assignments of error.
        Affirmed.