State v. Anner ( 2024 )

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.
Cite as 335 Or App 388 (2024) 389
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 offi-
cer (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, defen-
dant 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 undis-
puted. 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 draw-
string 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 defen-
dant about discrepancies, defendant revealed to the officer
his real name and the existence of an outstanding war-
rant 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 offi-
cer’s training and experience, a user amount of metham-
phetamine 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 sim-
ilar 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, defen-
dant 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 quot-
ing 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 indict-
ment in this case was sufficient, because on its face it pro-
vided 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, 328 Or 248, 257, 971 P2d
879, cert den, 527 US 1042 (1999). The joinder statute allows
charging two or more offenses in the same charging instru-
ment in a separate count for each offense if the offenses
Cite as 335 Or App 388 (2024) 391
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, 277 Or App 137,
144-45, 370 P3d 904 (2016), adh’d to on recons, 285 Or App
750, 399 P3d 488, rev den, 361 Or 886 (2017); see also State v.
Warren, 364 Or 105, 120, 430 P3d 1036 (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 articu-
lated in Poston because it alleged a statutory basis for join-
der and it further alleged facts sufficient to establish compli-
ance 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, 267 Or 266,
273, 516 P2d 1280 (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 chal-
lenges 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, 334 Or App 437, 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. 293 Or 402, 649 P2d 569 (1982). A law
that targets speech based on its substance falls into “cate-
gory one” of the framework, and is unconstitutional unless
it falls wholly within a historical exception. State ex rel
Rosenblum v. Living Essentials, LLC, 371 Or 23, 45, 529 P3d
939 (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, 371
Or at 45.
In Robertson, the Supreme Court recognized fraud
as a well-established historical exception. 293 Or at 412
(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, 371
Or at 49. Citing Blackstone’s Commentaries, the court also
recognized that misrepresenting one’s identity before a pub-
lic official was a felony under English law. State v. Moyer,
348 Or 220, 234, 230 P3d 7, cert den, 562 US 895 (2010)
(noting “Blackstone’s observations that providing false iden-
tifying information to governmental officials or public bod-
ies 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, 348
Or at 234. 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 excep-
tion” where the statute is “an extension or modern variant of
Cite as 335 Or App 388 (2024) 393
the initial principle that underlies the historic legal prohibi-
tion against deceptive or misleading expression.” Id. at 237.
ORS 162.385(1)(b) prohibits a person from know-
ingly giving false identifying information to a peace offi-
cer 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 offi-
cial 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, defen-
dant 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 evi-
dence in the light most favorable to the state to determine
whether a rational trier of fact, accepting reasonable infer-
ences and reasonable credibility choices, could have found the
essential elements of the crime beyond a reasonable doubt.
State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert
den, 514 US 1005 (1995). Each of the counts above required
proof that defendant possessed the drawstring bag’s con-
tents, which can be established through either actual or con-
structive possession. State v. Tacia, 330 Or App 425, 431, 543
P3d 713 (2024). To establish constructive possession, “the
state must show that the defendant exercised control over or
had the right to control the substance.” Id. Mere proximity
is not a sufficient basis from which to draw an inference
of constructive possession. Id. 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, 297 Or App
848, 852, 444 P3d 527, rev den, 365 Or 557 (2019). Intent to
394 State v. Anner
transfer may be inferred where the defendant possesses a
controlled substance in an amount inconsistent with per-
sonal 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 sub-
stances 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, 191 Or App 90, 94, 80 P3d
506 (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, 120
Or App 485, 488, 852 P2d 946 (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 evi-
dence 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
Cite as 335 Or App 388 (2024) 395
testimony and experience that a personal use is between 0.2
and 0.5 grams, a reasonable factfinder could find that defen-
dant’s possession of 20.78 grams of methamphetamine is an
amount inconsistent with personal use. See also Newsted,
297 Or App at 854 (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 sub-
stance. We therefore conclude that there was sufficient evi-
dence 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 defen-
dant’s assignments of error.
Affirmed.