State v. Tellez

14 P.3d 78, 170 Or. App. 745, 2000 Ore. App. LEXIS 1879, 2000 WL 1673403
CourtCourt of Appeals of Oregon
DecidedNovember 8, 2000
Docket970634296; CA A99686
StatusPublished
Cited by7 cases

This text of 14 P.3d 78 (State v. Tellez) 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. Tellez, 14 P.3d 78, 170 Or. App. 745, 2000 Ore. App. LEXIS 1879, 2000 WL 1673403 (Or. Ct. App. 2000).

Opinion

WOLLHEIM, J.

Defendant was charged with possession of a controlled substance, ORS 475.992(4)(a), delivery of a controlled substance, ORS 475.992(l)(a), and manufacture of a controlled substance, ORS 475.992(l)(a). After a trial to the court, defendant was convicted of all three charges. On appeal, defendant challenges the sufficiency of the evidence to support the conviction for manufacture of a controlled substance. As explained below, we agree with defendant that the state presented insufficient evidence that manufacture of a controlled substance had taken place. We reverse defendant’s conviction for manufacture of a controlled substance and remand for resentencing.

On review, we view the evidence in the light most favorable to the state to determine whether any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. State v. King, 307 Or 332, 339, 768 P2d 391 (1989). Defendant and Hernandez were seen by Portland police officers in a part of Portland known for its heavy volume of drug trafficking. They disappeared for a brief period of time into a doorway. When they emerged, the officers observed Hernandez adjusting his belt, which the officers testified is a common activity of people who have concealed drugs. Shortly thereafter, Hernandez had contact with two women, while defendant walked parallel to them. Hernandez pulled out a plastic-wrapped package containing what the officers believed to be a ball of tar heroin about the size of a golf ball. Hernandez and the women then went to a nearby telephone booth. Defendant stood close by and looked up and down the street, as well as into the telephone booth. Hernandez put the ball of heroin on a steel shelf in the telephone booth, took out a pocket knife, and cut a small piece of heroin from the ball. Hernandez gave the small piece to the women, who gave him money in return. Defendant then waved to somebody down the street, and, shortly thereafter, a car pulled up to the curb. Hernandez and defendant got into the car. Officers stopped the car several minutes later. Although the ball of tar heroin was not recovered, the officers found traces of tar heroin on Hernandez’s pocket knife and [748]*748also found trace amounts of heroin on plastic wrappers and spoons in the vehicle.

The state’s theory of the case was that defendant aided and abetted Hernandez in the crimes of possession, delivery, and manufacture of a controlled substance. Defendant does not challenge the sufficiency of the evidence that he aided and abetted in the possession and delivery. He argues, however, that the state presented no evidence of manufacturing. The state argued to the trial court that defendant aided and abetted in “cutting up of heroin and repackaging.” The trial court agreed that that constituted manufacture of a controlled substance.

On appeal, defendant argues that the evidence showed that Hernandez unwrapped the ball of heroin, cut off a small piece, and handed the piece to the women, but no evidence was presented that he rewrapped or repackaged the heroin before delivering it. The state asserts in response that the act of slicing off an individual-use portion of the tar heroin from a larger quantity constitutes “packaging” it into a different form for sale and that that constitutes manufacture of a controlled substance.1

ORS 475.992(1) makes it unlawful for any person to manufacture a controlled substance. ORS 475.005(14) provides the following definition:

“ ‘Manufacture’ means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, [with certain exceptions not relevant to this case].” (Emphasis added.)

The sole issue in this case is whether the acts of unwrapping a ball of tar heroin, slicing off a piece, and handing it to another person constitute the crime of manufacture of a controlled substance. Since no extraction or chemical [749]*749synthesis occurred, the question reduces to whether those actions constitute “packaging or repackaging of the substance” as that phrase is used in ORS 475.005(14). We note at the outset that there is no evidence that Hernandez placed the small piece of tar heroin into any kind of container before handing it to the women. Thus, the question is not whether taking a piece of heroin from a large package and placing it into a smaller package constitutes manufacture of a controlled substance but simply whether unwrapping the larger portion and taking out a smaller portion constitutes “manufacture of a controlled substance” by “packaging or repackaging.”

Our goal in interpreting this statute is to discern the legislature’s intent. The best evidence of legislative intent is the text of the statutory provision itself. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). In considering the text, we generally give words of common usage their plain, natural, and ordinary meaning. Id: at 611. Webster’s Third New Int’l Dictionary, 1618 (unabridged ed 1993), defines “packaging” as:

“1: an act or instance of packing «industrial ~ is concerned with transit more than with trade —Modern Packaging> «the official lot-test number must.. . accompany the dyes through all subsequent -s —For Instance> <a new - of the idea — Newsweeh 2: package 3a «developing marketable products and their ~s — Ben Nash>.”

The definition of “package,” to which the second part of that definition of “packaging” refers, is

“a covering wrapper or container «nature gave the banana a good--advt>; specif: a protective unit for storing or shipping a commodity «designing a ~ that attracts the eye of the customer and at the same time protects the merchandise— Christian Science Monitor>.” Id. at 1617.

Similarly, “repackage” is defined as “to package again or anew; specif: to put into a more efficient or attractive form.” Id. at 1923. Read together, those definitions carry a connotation of preparing goods for delivery by enclosing them in a container or wrapper, either to protect the goods or to present them in a manner attractive to a consumer. There is nothing about opening a container, taking out a small portion [750]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Sirnio
331 Or. App. 808 (Court of Appeals of Oregon, 2024)
State v. Tacia
543 P.3d 713 (Court of Appeals of Oregon, 2024)
Jorge Romero-Millan v. Merrick Garland
46 F.4th 1032 (Ninth Circuit, 2022)
Washburn v. Columbia Forest Products, Inc.
104 P.3d 609 (Court of Appeals of Oregon, 2005)
State v. Presley
28 P.3d 1238 (Court of Appeals of Oregon, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
14 P.3d 78, 170 Or. App. 745, 2000 Ore. App. LEXIS 1879, 2000 WL 1673403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tellez-orctapp-2000.