State v. Rankins

382 P.3d 530, 280 Or. App. 673, 2016 Ore. App. LEXIS 1072
CourtCourt of Appeals of Oregon
DecidedSeptember 8, 2016
Docket201209098; A154629
StatusPublished
Cited by3 cases

This text of 382 P.3d 530 (State v. Rankins) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rankins, 382 P.3d 530, 280 Or. App. 673, 2016 Ore. App. LEXIS 1072 (Or. Ct. App. 2016).

Opinions

DUNCAN, P. J.

Defendant appeals the trial court’s judgment convicting him of delivery of heroin, as a commercial drug offense (Count 1), ORS 475.850 and ORS 475.900(l)(b), and possession of heroin (Count 2), ORS 475.854. On appeal, defendant assigns error to the trial court’s conclusion that the state presented sufficient evidence to establish that the delivery constituted a commercial drug offense. In order to establish that an offense is a commercial drug offense, the state must prove that the offense was accompanied by at least three of the 11 factors listed in the commercial drug offense statute, ORS 475.900 (l)(b). In this case, one of the three factors that the state alleged was that defendant “was in possession of drug transaction records or customer lists.” ORS 475.900(l)(b)(E). In support of that allegation, the state presented evidence of text messages sent and received by defendant, and contended that they constituted drug transaction records. Defendant moved for a judgment of acquittal on the commercial drug enhancement, asserting that, because, as a matter of law, the text messages do not constitute drug transaction records, the state had failed to prove three enhancement factors. The trial court denied the motion and convicted defendant as charged.

On appeal, defendant renews his claim that the text messages do not constitute drug transaction records. Defendant’s claim requires us to interpret the meaning of “drug transaction records” as used in ORS 475.900(l)(b)(E). As explained below, we conclude that the legislature intended the term “records” to mean intentionally retained notations regarding events, and that it intended the term “drug transaction records” to apply to notations similar to business records, that is, records maintained in furtherance of an enterprise conducted over a period of time. Applying that definition to the facts of this case, we further conclude that the text messages at issue do not constitute drug transaction records and, therefore, the trial court erred by denying defendant’s motion for a judgment of acquittal on the commercial drug offense enhancement. Accordingly, we reverse defendant’s conviction on Count 1 and remand for entry of a judgment of conviction for delivery of a controlled substance [676]*676without the commercial drug offense enhancement, remand for resentencing, and otherwise affirm.

HISTORICAL AND PROCEDURAL FACTS

While defendant was on probation and post-prison supervision, his supervising officer visited him at his studio apartment, accompanied by a detective. The supervising officer asked if he could search defendant’s cell phone, and defendant consented. The officer saw three messages sent that same day that related to illegal drug activity: (1) an 11:52 a.m. message to “Happy” stating “got my shit together 120 a g”; (2) an 11:55 a.m. message to “Carol” stating “did u want to cop????????”; and (3) a 2:38 p.m. message from “Happy” stating, “Can i come over for one now pa.”

The officer reviewed approximately two days of text messages, and there were more than 10 messages from each day. The three messages quoted above were the only messages that stood out to the officer.

After the officer saw the messages, he advised defendant of his Miranda rights and questioned him. Defendant admitted that he had sold heroin to “Happy” for a $40 profit. The detective searched defendant and found $500 in his wallet. The officer also searched defendant’s apartment and found a plastic film canister containing a “small chunk” of black tar heroin.

The state charged defendant with unlawful delivery of heroin, as a commercial drug offense, and unlawful possession of heroin. The state alleged that the delivery was “a commercial drug offense” because defendant was “in possession of $300 or more in cash,” the delivery was “for consideration,” and defendant was “in possession of drug transaction records or customer lists.” See ORS 475.900(l)(b)(A), (B), (E). Defendant waived his right to a jury and was tried by the court. At trial, the state presented evidence of the text messages and argued that they constituted drug transaction records.1 Defendant moved for a judgment of acquittal [677]*677on the commercial drug offense enhancement, arguing that there was insufficient evidence of the “drug transaction records” factor, because the text messages “are communications, they’re not records or lists as those that would be kept in a business.” The trial court rejected that argument and convicted defendant as charged.

ARGUMENTS ON APPEAL

As stated, the issue on appeal is whether the trial court erred by denying defendant’s motion for a judgment of acquittal on the commercial drug offense enhancement based on its conclusion that there was sufficient evidence of the “drug transaction records” factor. To resolve that issue, we must first determine the meaning of the term “drug transaction records” as used in ORS 475.900(l)(b)(E), which is a legal question. See State v. Slovik, 188 Or App 263, 266-67, 71 P3d 159 (2003) (interpretation of a statutory drug offense enhancement factor is a matter of law). Then, viewing the evidence in the light most favorable to the state, we must determine whether any rational factfinder could have found that the text messages at issue in this case are drug transaction records, which is also a legal question. See State v. Lupercio-Quezada, 224 Or App 515, 521-23, 198 P3d 973 (2008) (applying standard).

The parties disagree about the meaning of the term “drug transaction records,” as used in ORS 475.900(1)(b)(E). In particular, they disagree about the meaning of the term “records.” Generally stated, defendant’s position is that, for the purpose of ORS 475.900(1)(b)(E), a “record” is an intentionally retained notation of an event, whereas the state’s position is that a “record” is any stored and retrievable information.

In defendant’s view, a “record” is “a notation made to denote a historical or ongoing event.” Under defendant’s definition, a “record” is something that is intentionally retained, generally for future reference. Applying that definition, defendant argues that the text messages at issue in this case do not qualify as records because they were “mere remnants of digital communications, not records that defendant kept as part of a business.”

[678]

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Related

State v. Corcilius
430 P.3d 169 (Court of Appeals of Oregon, 2018)
State v. Stewart
386 P.3d 688 (Court of Appeals of Oregon, 2016)
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380 P.3d 1150 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
382 P.3d 530, 280 Or. App. 673, 2016 Ore. App. LEXIS 1072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rankins-orctapp-2016.