State v. Faccio

552 P.2d 868, 26 Or. App. 393, 1976 Ore. App. LEXIS 1718

• Court: Court of Appeals of Oregon
• Decided: August 9, 1976
• Docket: No. 75 3337, CA 5749
• Status: Published

Opinion

SCHWAB, C. J.

Defendant’s two assignments of error present a single question: Did the evidence present a prima facie case against him on the charge of conspiracy to commit criminal activity in drugs? We so hold.

There was testimony that Judith Roth — alleged in the indictment to be defendant’s co-conspirator — engaged in extended negotiations with an informant to sell a large amount of amphetamine tablets. During these negotiations, Ms. Roth stated that defendant was her source of illegal drugs.

Police officers observed a transaction between Ms. Roth and a customer on January 17,1975 — alleged in the indictment to be the date of the crime. After leaving the customer at a restaurant, Ms. Roth was followed by officers to defendant’s house. She stayed about five minutes. Ms. Roth was then followed by the officers back to the restaurant, where a sale of amphetamine tablets was consummated. Again, the officers followed Ms. Roth to defendant’s house where she stayed about 30 minutes.

It was a question for the factfinder whether Ms. Roth’s visits were social in nature, as defendant testified, or commercial in nature — the first to quickly pick up drugs and the second to leisurely split the sale proceeds. See, State v. Krummacher, 269 Or 125, 523 P2d 1009 (1974); State v. Brewer, 267 Or 346, 517 P2d 264 (1973).

Affirmed.